.4v.>v^' :V»'/!y ^^•^t^/^^ Digitized by tine Internet Archive in 2008 with funding from IVIicrosoft Corporation http://www.archive.org/details/ecclesiasticaltrOOsmitrich ELEMENTS Ecclesiastical Law. COMPILED WITH REFERENCE TO THE SYLLABUS, THE "CONST. APOSTOLICAE SEDIS " OF POPE PIUS IX., THE COUNCIL OF THE VATICAN AND THE LATEST DECISIONS OF THE ROMAN CONGREGATIONS. ADAPTED ESPECIALLY TO THE DISCIPLLNE OF THE CHURCH IN THE UNITED STATES. REV. S. B. SMITH D.D., FOR.MERLY PROFESSOR OF CANON LAW, AUTHOR OF "NOTES," "COUNTER POINTS," ETC. p ,:<: h Vol. II. I ECCLESIASTICAL TRIALS. Ithe abbey of NEW f <: CINCINNATI, ST, LOUIS, AND EINSIEDELN : BEI^ZIGEE BROTHEES, PKINTERS TO THE HOLY APOSTOLIC SBE. 1882. 6 ^^(,§01 LOAN STACK ^W. M. WIGGER, Episcopus Novarcensis. Datum Nov/.rc/e, Die 25 AuGUSTi, 1S82. Copyright, 1882, by Benziger BROTHERS. 3S^ /VlMi^ Diocese of Newark, y«/y 1 8, 1882. Rev. dear Doctor: I have tarefully read the proof-sheets of the second book of your " Elements of Canon Law," and I consider it a work on which you have spent vast labor and research. I do not, indeed, agree with you in all your deductions and conclusions. However, I consider your book one of great merit, and, as in doubtful matters we are allowed each to hold hi^ own opinion, I cheerfully give my permission to publish the work, and wish it from my heart all the success that you yourself could expect. With great esteem, I remain, Yours very sincerely, t W. M. WIGGER, Bishop of Newark. 619 PREFACE. / It is now over five years since we published the first vol- ume of these Elements. The reader will naturally ask himself why we should have allowed so long a time to elapse before issuing the second volume. Our chief excuse is the difficulty of the task. There are perhaps not many persons who have an idea of the arduous nature of our undertaking. Canon- ists all agree that the matter — ecclesiastical judicature — of which the present volume treats is by far the most difficult and complicated portion of all ecclesiastical law. Schmalz- grueber' says: " Est hie liber" (the second book of the decret- als of Pope Gregory IX., which treats of ecclesiastical trials) omnium aliorum librorum juris canonici difficillimus, et maxime utilis." This difficulty is heightened, in our case, by the peculiar circumstances under which we write. Ecclesiastical trials in criminal and disciplinary causes of ecclesiastics are to be conducted in the United States in the manner laid down by the Instruction of the Sacred Congregation de Propaganda Fide, issued July 20, 1878. This Instruction authorizes cer- tain departures from the prescriptions of the sacred canons concerning ecclesiastical trials. It permits a simpler, easier, and less intricate mode of procedure. Yet it gives but the general features of the proceedings. Now, what are the principles which must guide the ecclesiastical judge and the canonist m filling up this sketch or outline? Evidently no others than those which are contained and embodied in the ' Lib. 2, Prooem. 6 Preface. sacred canons, the decrees of oecumenical councils, and the constitutions of the supreme pontiffs, as interpreted and ap- plied by the approved canonists of every age and every clime. The common law of the Church — and we mean not merely its letter, but also its spirit — must therefore be, so to say, the mirror before which our peculiar mode of procedure must be placed, considered, and studied. This mirror alone fur- nishes the correct key of the Instruction. Hence, throughout this volume, the peculiar trial as prescribed for this country by the Instruction of July 20, 1878, is everywhere and in all its details compared with the canonical trial as established by the sacred canons. The points of agreement as well as of divergence between the one and the other are carefully pointed out and explained. The present volume is divided into two Parts. The first treats of ecclesiastical trials in general : namely, of the judicial power of the Church ; of the personnel of ecclesiastical courts ; of the judge and our Commissions of Investigation ; of plain- tiffs and defendants, procurators and advocates ; of the nature, various kinds, and force of judicial proofs. The Second Part discusses ecclesiastical trials in particular — that is, chiefly the various stages and formalities of ecclesiastical trials, both ordinary and extraordinary, civil and criminal, and matri- monial. Particular attention is paid everywhere to our form of trial, and it is explained in all its details. We are happy to call attention to the fact that their Eminences Cardinal Manning and Newman, the greatest lights of the Church in England at the present day, have been graciously pleased to approve of the first volume of this work./ S. B. S. St. Joseph's Church, Paterson, N. J., Feast of the Assumption of the Blessed Virgin, 1882. BOOK 11. ON ECCLESIASTICAL JUDICATURE, OR OF JUDICIAL PROCEEDINGS, CIVIL AND CRIMINAL, IN ECCLESIASTICAL COURTS. {DE JUDICIIS ECCLESIASTICIS.) 685. We shall divide this book into two parts: the first will treat of ecclesiastical judicature in general ; the second will discuss the same subject in particular. PART I. OF ECCLESIASTICAL JUDICIAL PROCEEDINGS, CIVIL AND CRIMINAL, IN GENERAL. 686. Under this heading we shall speak of the nature and various kinds of judicial proceedings ; of the various persons intervening at them, namely, of the judge, plaintiff and defendant, procurators and advocates; of the compe- tency of the court; and of judicial proofs./ CHAPTER I. WHAT IS MEANT BY JUDICIAL PROCEDURES OR TRIALS AND HOW MANY KINDS ARE THERE? 687. Nature of judicial proceeditigs. In every trial or forensic procedure there must be i, a decision {sententid), regarding (a) a thing ires) or right {jus) belonging to a per- son, or (b) a punishment incurred by him according to law. Hence all trials' or processes consist in the application of the 8 What is Meant by Judicial Procedures f law to the fact. Therefore each trial or process resolves itself into a syllogism, of which the major is the nature of the law applying to the case ; the minor the fact to which the law is to be applied, the conclusion, the sentence of the court or judge.' From this it will also be seen that the sub- ject-matter of trials or judicial proceedings is essentially only a litigious matter. In other words, only questions or matters of law, about which two parties dispute, — v.g., how far a person is entitled to some right or liable to some punish- ment, — can form the subject-matter of judicial proceedings. Hence questions that are merely theoretical or speculative or scientific — v.g., whether the sun moves — cannot be the object of trials.^ 688. 2. A judge {judex) or a person lawfully appointed to pronounce the sentence or give the decision, and, moreover, vested with power to execute it, that is, possessed of juris- diction in foro cxtc7'no^ From this it will be seen that every judge proper has the power not only to pronounce sentence {potestas judicandi, notid), but also to enforce it by penalties. We observe, however, with Devoti,^ that this coercive power is not always attached to the potestas judicandi or notio; for there are judges — v.g., arbitrators — who have only the notio, that is, merely the power to render a decision, but not to enforce it. However, these are judges only in a broad sense. Perhaps it might be said that members of Commissions of In- vestigation in England and the United States may, in a similar broad sense, be called judges. We say " in a similar broad sense," but not "in the same broad sense"; for although these commissioners have exclusive charge of the trial, or hearing of the case, their sentence or opinion, unlike that of arbitrators, is only consultative, and not binding upon the bishop, who alone can pronounce and enforce the final sentence.) ' Salzano, vol. iv. p. 19. "^ Miinchen, Canonical Trials, vol. i. p. 6. ■'' Craiss., n. 5476. •• Lib. iii., tit. ii., § 3; and tit. xvii., § 5. What z's Meant by Judicial Procedures ? 9 689. 3. A plaintiff or quasi-plaintiff {actor, quasi-actor, ac- ciisator, dcnuntiator), namely, the person who sues or prose- cutes — i.e., demands that justice be done him, or a due punishment inflicted upon another. This plaintiff must be a distinct person from that of the judge, according to the axiom : " Nemo potest esse simul accusator et judex." How- ^ ever, the judge can, upon rumor or fame reaching him of the commission of a crime, summon before his tribunal the parties whom fame charges with the deed, and if upon due trial he finds them guilty, pronounce sentence. In this case, common fame {fama communis) itself supplies the place of the plaintiff, in fact, is considered the plaintiff, as Pope Inno- cent III. says: " Non tanquam idem sit accusator et judex, scd quasi deimntiautc fama, vcl defcrcnte clamored * But in no case can the judge proceed merely on his own private knowl- edge of the offence.^ Hence, as Schmalzgrueber^ says, in every trial there must be a plaintiff, distinct from the judge, ■ either in a literal or at least metaphorical sense. • 690. 4. A defendant (reus), namely, a person of whom something is demanded or upon whom it is asked that a pun- ishment shall be inflicted. 691. 5. Finally, it is necessary that the case be discussed or argued {causae disceptatio) — i.e., that the plaintiff submit his proofs, and the defendant be allowed to defend himself./ 692. This is all that is required by the law of nature for trials or judicial proceedings, ecclesiastical or secular. All other formalities isoleinnitates Judicii), even prescribed on pain of nullity, are necessary not because of the nature of processes, but solely from positive law. To understand this better, it must be borne in mind that, so far as their sub- stance or essential elements are concerned, trials hold of the law of nature itself and are based upon it. For, considering the state of fallen human nature, litigations must frequently ' Cap. Qualiter et quando 24, De accusal, (v. i). ' Craiss., n. 5478. ^ Lib. 2, tit. I, n. 16. lo What is Meant by Judicial Procedures ? occur. It is therefore indispensable that there should be certain persons who can, in such cases, put an end to dis- putes and give each one his due. Now, evidently, this cannot be done by the contending parties themselves, nothing being more repugnant to right reason than that a person should be judge in his own cause. Hence it is necessary that tri- bunals or courts be established by public authorit}'- for the adjudication and settlement of causes. 693. We said, so far as the substance or essential elements of trials are concerned; for the mode of conductir.g trials — that is, the various formalities {sole^nnitates judicii) — have been established by human positive law. Hence, as we have already seen, the demand of the plaintiff, the citation of the defendant, the discussion of the cause, — i.e., the submitting of proofs by the plaintiff, and the defence by the defendant, the sentence of the judge, — are required by the natural law to constitute a trial. For they pertain to the substance of trials, and are of such a nature that without them the cause could not be properly tried. The various other formalities, as we have shown, owe their origin to positive human law.^ In the beginning trials or judicial proceedings were naturally informal. But as suits or litigations grew more numerous, it became necessary to establish a certain fixed mode or order of proceeding in these discussions or trials. This order or method of procedure in a particular case is styled process or trial, which may be, as we shall see, either eccle- siastical or secular.'/ 694. From what has been said, it follows: i. A trial or pro- cess, considered in its essential elements, — i.e., those which, as we have seen, are required by natural law, — is, properly speak- ing, defined to' be "the sentence of the judge in regard to the demand of the plaintiff against the defendant, pronounced after due discussion or argument of the case."' Viewed ' Schmalzg., lib. 2, t. i, n. 4. ' Salzano, vol. iv., p. 19. ^ Craiss., n. 5481. What is Meant by Judicial Procedures f 1 1 with regard to the formalities established by positive law, a process or trial is " the sentence, etc., pronounced by the judge, after the case has been argued or tried, according to the nietJiod prescribed by lawy * 2. In no trial or judicial proceedings (and this holds, as a matter of course, also of ecclesiastical trials ; for we are now speaking in general of eccfesiastical and secular trials), even though only summary, can those things be omitted which form the substance of trials. For they are based upon the natural law, against which no custom can prevail." 3. Supreme rulers (the Pope for the Church) can personally or through others omit those formalities of trials which are prescribed by positive law, but not those which derive from the law of nature. 695. Every trial or process, as we shall see further on, may be said to have three stages : the beginning, the middle, and the end ; that is, the introduction of the cause into court, the trial proper, or hearing of the argument of plaintiff and defendant ; the sentence.V 696. Division. — Trials or judicial proceedings are divided chiefly, i, into ecclesiastical and secular. An ecclesiastical trial {processtis caiionicjis, judicium ecclesiasticuni) is that which takes place before the ecclesiastical judge as such, and is defined to be " the sentence which the ecclesiastical judge passes on a demand or accusation made by the plaintiff against the defendant, after the case has been duly argued before him, in the manner and form presented by the law of the Church." This " manner and form," or the formalities prescribed by the common law of the Church for ecclesias- tical trials, are given in detail in the second book of the Decretals. The mode of conducting ecclesiastical trials in the United States, in disciplinary and criminal causes of ecclesiastics, is laid down in the Instruction of the S. C. ' Cf. Ferraris, v. Judex, Novae add., n. i. * Schmalzg., 1. c, n. 4. 3 Craiss., n. 5483, nota I. 1 2 What is Meant by ytidicial Procedures ? de P. F., dated July 20, 1878, concerning Commissions of Investigation, and differs, as we shall see in the course of this work, in certain respects, from that prescribed by canon law or the common law of the Church. Secular trials are those which are presided over by the secular judge or magis- trate as such.' 697. 2. Into civil and criminal. Criminal trials are those where crimes are punished ; civil, where there is question, not of punishing offences, but of deciding other disputes.* This division applies to ecclesiastical as well as secular trials. Further on we shall describe more fully the nature of crimi- nal and civil trials in ecclesiastical courts. 698. 3. Into ordinary {judicium or dinar ium, solcnme,plc)ia- rium), where all the formalities prescribed by law are ob- served ; and extraordinary {processus summarius, judicium extraor dinar iuvi), where many of the formalities ordained solely by positive law can be omitted. We say, by positive law ; for those which are required by the law of nature must be retained even in summary trials. V 699. 4. Into petitory and possessory. Petitory trials or processes {judicium pctitoriuni) are those where there is ques- tion (a) of the ownership {proprictas rei, as distinguished irom possessio rei) — i.e., just title or claim to a thing, v.£^., to a field, an ecclesiastical benefice or office, the right of election; (b) or of some right i/i re or ad rem, v.g., the right resulting from a mortgage or other security or pledge given, or from heirship. Possessory trials, on the other hand, are those in which the parties contend solely about obtaining, retaining, or recovering possession of a certain object {res) or right {jus). The difference therefore, between petitory and possessory trials is that in the former the plaintiff asks that his title or claim be declared valid or just ; in the latter, he merely de- • Reiflf., lib. 2, t. i, n. 34. *Our Counter-Points, n. 55, 56. » Reiff., 1. c. n. 41. What is Meant by Judicial Procedures f 13 mands possession of the object or right, or that he be not disturbed in his quiet possession, or that the object having been lost by or taken from him, be restored to him.' 700. 5. Into those of the first and second instance {jiidicis primae et secundae instantiae), according as it is allowed to appeal to a higher tribunal or not." 701. 6. Into trials bonae fidei 2ccidi stricti juris. A trial is bonae fidei when the law allows the judge a certain equitable discretionary power in determining what is due to the plain- tiff. It is stricti juris when the law does not give the judge this power, but obliges him to confine himself, in his sentence, strictly to what the parties have submitted, or what is speci- fied in the law in regard to the matter under dispute. All those trials or actions which are bd7tae Jidei are enumerated in the Roman law.V ' Schmalzg., lib. 2, t. 12, n. 30. * Craiss., n. 5489. ' §§ 28, 29, 30. Instit. De Actionibus. CHAPTER II. HAS THE CHURCH A JUDICIARY POWER IN THE STRICT SENSE? WHAT IS ITS EXTENT? \ 702. Protestants contend that the Church is but a cor- poration or imperfect society, not a perfect society or Sov- ereign State ; that she has only the power of suasion, not of external jurisdiction, and is therefore possessed of no judi- ciary power proper. It is moreover falsely asserted by man}-, that what judiciary power the Church has ever exercised, she has done so only by consent of the secular power. 703. Against these and other errors of a similar kind we lay down the following proposition : " The Church is pos- sessed of an external forum for the exercise of judicial power, properly so called." What is to be proved here is not pre- cisely the power to make definitions of faith, or enact disci- plinary laws binding on all the faithful, or even the judiciary power inforopoenitentiae; but that the Church can establish courts or tribunals of its own, where judges appointed by it have power to try and pass sentence upon certain ecclesias- tical causes in such a manner that persons accused or sued are bound even in conscience to appear before them (if prop- erly cited), and may be compelled by the judge, both by censure and temporal penalties, to appear and undergo the sentence pronounced against them./ 704. We will now prove our thesis : first, from theological reason ; next, from S. Scripture ; finally, from the practice of the Church. The argument from reason is as follows : We have already shown that the Church, being a supreme, per. feet, and independent society, and not a mere corporation, is Has the Church a Judiciary Power 9 15 vested with power to make laws obligatory on all its members, and also the power to enforce them, even by punishments/ Now these very powers necessarily include another, a third, namely, the judiciary power, which forms at once the natural outgrowth of the legislative power and the necessary condi- tion of the coercive.' We say, first, the natural outgrowth of the legislative power ; for the latter would be imperfect and useless if it did not include the judiciary power — i.e., the power to apply and enforce the law in a particular case, whenever a dispute arises as to its meaning and application. We say, secondly, and the necessary condition of the coercive ; for, when there is question of inflicting an ecclesiastical pun- ishment, the following mode of procedure, flowing as it does from the very nature of the case, must evidently be observed. The offence must be first brought to the notice of the eccle- siastical superior ; the latter must then obtain certainty as to whether it has been committed or not. In other words, the offence must be proved ; consequently the defence as well as the prosecution must be heard. Then only can sentence be justly passed and punishment inflicted on the delinquent. Therefore the exercise of the coercive power can be just only when it is preceded by the exercise of the judicial power.* In other words, punishments are as a rule unjust, when imposed without a previous trial. For, as we have seen, trials, so far as concerns their substantial parts, hold of the very law of nature. That is, natural law itself ordains that, as a rule, no punishment shall be inflicted except upon due observance of the substantial formalities of trials./ 705. The Sacred Scriptures also show that the Church is vested with judicial power. Thus, our Lord, in laying down the rule that a deliquent should be first reproved privately, and next before witnesses, adds : ** If he will not hear them, * Supra, n. 183-186 and 201-204. ^ Fessler, The Canonical Trial, p. 9. * Fessler, 1. c. ; Bouix, De Jud., vol. i., p. 31. 1 6 Has the Church a Judiciary Pozucr? tell the Church" — i.e., the rectors or superiors of the Church ; " and if he will not hear the Church, let him be to thee as the heathen and the publican ;" ' that is, let him be cut off from the Church, or excommunicated, and considei-ed as excom- municated. Here, then, the Church is given the power to excommunicate. This is placed beyond doubt by the verse immediately succeeding : " Amen, I say to you, whatsoever you shall bind upon earth, shall be bound also in heaven."" For, as the illustrious Bishop Fessler,' Secretary to the Va- tican Council, explains, the phrase " to bind " means the same as to excommunicate or punish. Now, as we have seen, ecclesiastical, no less than secular punishment, can, as a rule at least, be justly inflicted only when a trial or hearing of the cause has preceded. Hence the power to excommunicate or punish necessarily presupposes the right and duty to hear or try the cause. In fact, in the above quotation from Sacred Scripture we have all the essential elements of a trial or judi- cial proceeding, namely, the judge, the accuser, the accused, the hearing or argument, the sentence and its execution.* / 706. Again, to continue the argument from Sacred Scrip- ture, St. Paul threatens to come to the Corinthians " with a rod,"^ and expressly tells them that he has power to punish all disobedience, when he says : " Having in readiness to re- venge disobedience." * In fact, he made full use of this power in passing sentence of excommunication upon the incestuous Corinthian,^ and Hymeneus, and Alexander." Now, as was already observed, the power to punish necessarily presup- poses the judicial power — that is, the power to hear the cause, or to ascertain by a trial whether the offence has been committed or not. We observe here, by the way, that the case of the incestuous Corinthian, being notorious, needed no further investigation or trial, prior to sentence.' Finally, ' Matth. xviji. 17. ' lb., v. 18. ^1. c, p. 12. * Cf. Bouix, 1. c. p. 30. * I Cor. iv. 21. * 2 Cor. x. 6. ■" i Cor. v. 3, sq. * 1 Tim. i. 19, 20, ' Fessler, 1. c, p. 14, Has the Chiirch a yitdiciary Power? 17 St. Paul tells his beloved Timothy, Bishop of Ephesus, Against the priest receive not an accusation, but under two or three xvitnesses.^ Here we have all the essential elements of a trial : the accused ; the judge, in the person of Timothy ; the hearing of the cause, as indicated by the deposition of the witnesses, etc. St. Paul, moreover, points out how trials are to be begun.^ 707. The practice of the Church confirms our thesis. As a matter of fact, the Church exercised this judicial power from the very beginning. We have already seen the action of St. Paul. Space permits us to mention but one more in- stance. Toward the end of the second century Montanus began to broach his heresy. Several synods were held, in which his teaching was carefully examined and found to be heretical. Thereupon sentence was passed upon him and his adherents, cutting them off from the Church. Here, then, we have all the essential constitutive parts of a trial, the sentence being preceded by a careful investigation or hearing of the cause.^ 708. From what has been said, we infer: i. The Church is clothed with judicial power proper; that is, she can have tribunals of her own, to hear or try causes, before giving de- cisions or inflicting punishments. 2. Consequently, she can compel persons, even by penalties, to appear before her tri- bunals and obey the sentence of her courts. Otherwise her judicial power would be useless. 3. Thisjudicial power was given her, not by secular rulers, but by God Himself. In fact, St. Paul, in passing sentence upon the incestuous Corin- thian, expressly states that he does so ivith the power of our Lord Jesus,* or as he elsewhere says, accordiitg to the power which the Lord hath given me!' \ 709. Here, in conclusion, it may be asked, what causes ' I Tim. V. ig. * Fessler, 1. c, p. 15. ^ Fessler, 1. c, p. 17. ^ I Cor. V. 4. * 2 Cor. xiii. 10. 1 8 Has the Church a Judiciary Power ? pertain to the ecclesiastical forum ? For the answer, we re- fer to n. 204-207, and to n. 478. From the principles there laid down, it follows that among other causes those fall under the ecclesiastical judicial forum which relate to the appoint- ment of prelates or inferior ecclesiastics ; the conferring of orders ; religious profession ; the validity of marriages or betrothals ; certain crimes, such as heresy, apostasy, schism, simony, and the like ; the rights and duties of ecclesiastics, as such ; etc.* | ' Cf. Schmalzg., 1. c, n. 6. CHAPTER III. OF THE VARIOUS PERSONS WHO USUALLY TAKE PART IN TRIALS OR JUDICIAL PROCEEDINGS. \ 710. The principal persons who necessarily take part in a trial, and without whom there can be no trial, are the judge {Judex), the plaintiff or accuser {actor, accusator), and the defendant {reus). The other persons who usually inter- vene either assist (a) the contending parties, as advocates, procurators or agents, and witnesses, or (b) the judge; as assessors and counsellors, auditors and referees, notaries and secretaries or clerks, messengers or constables.' We shall now, in the following articles, treat of these various persons. Art. I. Of the Judge. 711. The judge {Judex) is the person who presides by pubHc authority at the trial, and, so to say, acts as the medi- ator between the contending parties, by deciding the matter in dispute, according to law. In other words, the judge is a person who is vested with legitimate power to hear and pro- nounce upon litigious causes.'' The ecclesiastical judge is a person who has this power in regard to ecclesiastical causes or matters. \ 712. Various ki7ids of ecclesiastical Judges. — Ecclesiastical judges are divided chiefly, i, into those who hold by divine right {Jure divino), as the Pope, over the entire Church, and 1 Cf. Schmalzg., 1. c, n. 13. * Schmalzg., 1. c; Craiss., n. 5540. 20 Various Perso7is who tisually take part in Trials. in regard to all ecclesiastical causes ; the bishops, when they judge collectively with their head, the Roman Pontiff. Whether, however, bishops are judges jure divino, each in his own diocese, — that is, whether they, in the case, hold immediately of God — is, as we have shown, a controverted question.' The other ecclesiastical judges hold only by ecclesiastical or positive law. 713. 2. Into those who may exercise the judicial power, individually or singly {Jtidices singtilarcs); and those who can do so only collectively — that is, in a body, as the Roman Congregations of Cardinals." Commissions of Investigation in the United States and England may also be classed with these judicial bodies, though only improperly, as they are judges only in a broad sense. 714. 3. Into ordinary {Judices ordinarit) and delegated {judices delegati) judges. The former have judicial power by virtue of their office. As a rule, they can delegate their judicial power to others — that is, authorize others to act as judges for them. We say, as a rule; for vicars-general, though ordinary judges, cannot delegate their judicial powers to others. The latter are those who act as judges, not in their own name, but only in the name or stead of others. They are delegated {a) either by the law [delegati a Jtcre) ; thus bishops are frequently authorized by the Council of Trent to act as judges in place of the Holy See; {b) or by a person having ordinary judicial authority (delegati ab homine). \ 715. 4. Into judges proper {judices proprie dicti), or those appointed by the competent authorities ; and judges improp- erly so-called, namely, arbitrators {arbitri), or those chosen by the litigants themselves to decide the case. Arbitrators are chosen by the contending parties either with entire freedom or by command of the law. The former are called voluntary {arbitri voluntarii), the latter necessary or compulsory arbi- ' Supra, n. 242, 250. ' Bouix, De Jud., vol. i., p. 122. Various Persons who usually take part in Trials. 21 trators {arbitri necessarii). Necessary arbitrators have juris- diction not merely by the consent of the parties choosing them, but also by law or statute. Hence they are judges proper ; their sentence passes into res judicata (unless sus- pended by an appeal), and admits of an appeal.' An instance of necessary arbitrators is given in the Cap. 39, De Off. Jud. Del., where Pope Gregory IX. ordains, that when a judge is challenged as suspected, arbitrators shall be chosen to decide whether the exception or challenge is justified by sufficient cause. Voluntary arbitrators have no jurisdiction, according to the Roman or civil law, and are not, therefore, judges in the strict sense. The reason is that they receive the power to adjudicate upon the cause submitted to them solely from the mutual agreementof private parties, namely, the litigants, who cannot confer any judicial authority proper. However, by the law of the Church, as interpreted by custom, the decision of voluntary arbitrators gives the right to make an exception or to institute proceedings in the ecclesiastical courts.'' Persons who are chosen as arbitrators may accept or decline the office. But once they accept, they are bound, and may even be compelled by the superior, to fulfil the duties devolving upon them.^ 716. 5. Into judges a quo and judges ad quern. See vol. i., p. 425, sq. ( 717. The various judges in the Church are the Supreme Pontiff, Patriarchs, Primates, Metropohtans, Bishops, and prelates having quasi - episcopal jurisdiction. There are, moreover, various other judicial tribunals, namely: i. The sacred congregations or Commissions of Cardinals and other Roman tribunals ; 2. Legates, Nuncios, and Apostolic Visi- tors ; 3. Synodal judges chosen in each diocese to adjudicate causes committed to them by the Holy See ; 4. Vicars-gen- ' Cf. cap. 39, De Off. Jud. Del. (i. 29); cap. 14, De Rescript, (i. 3). ''■ Devoti, lib. 3, tit. 17, § 5. ^ Devoti, 1. c, § 10. 2 2 Various Persons who usually take part in Trials. eral, whose jurisdiction, though ordinary, may be restricted by the bishop;' 5. Other judges, appointed extraordinarily by the Holy See, or by bishops or other prelates for par- ticular cases — i.e., not to act as judges permanently, but merely in a certain case." 7 1 8. Who can be appointed a7i ecclesiastical judge? All those who are not disqualified by nature or by law. Now the fol- lowing persons are disqualified by nature — i.e., by reason of certam mental or bodily defects : Those who are deaf or dumb, or permanently insane, or under the age of puberty, — i.e., under the age of fourteen {impuberes), — or deficient in knowledge {illiierati). All these are evidently wanting in those physical and mental requirements which are necessary to a judge.' By law — i.e., canon law — the following persons are chiefly incapacitated : Those who are infamous {infames), whether by law {infaniia juris) or by fact {infamia facti), as heretics, schismatics, excommunicates, perjurers, etc.; 2. Slaves; 3. Women; 4. Minors under the age of twenty, though if the parties consent they can be chosen judges at the age of eighteen complete." Finally, lay persons cannot be appointed judges for ecclesiastical causes, except by the Pope. They can, however, be assessors in ecclesiastical courts.^ 719. Q. What is required in a judge that his sentence may be valid ? A. I. That he have competence in the case; in other words, that the case fall under his jurisdiction. Of this point, however, we shall speak more at length further on under the heading " The Competent Tribunal or Forum." \ 720. II. That there be no circumstances on account of which the law declares the sentence null and void. Hence, > Cf. supra, n. 620, 627. ' Bouix, 1. c, p. 123; Craiss., n. 5548. 3 MUnchen, Canonical Trials, vol. i., p. 67; Soglia, Inst. Jur. Priv., § 202. * Cap. Cum Vigesimum 41, De Off. Jud. Del. (i. 29). * Cap. Statutum 11, § Assessorem, de Rescript, in 6° (i. 3). Various Persons who usually take part in Trials. 23 I. Nobody can be judge or assessor in the same cause in which he previously acted as advocate/ The reason is that, considering the frailty of human nature, such a person could scarcely feel inclined to give a judicial sentence different from what he formerly defended as just.^ 2. Nor can a judge pronounce sentence validly in a cause if as a private person he is engaged in a similar case, whether in the capa- city of plaintiff or defendant. For it would justly be pre- sumed that he would judge in the case as he himself would wish to be judged by others in his own case. This prohibi- tion is also conformable to natural law.'/ 721. 3. Much less can any one, as a rule, be judge in his own cause — i.e., in causes between the judge himself and his subjects, or where he is himself directly interested, v.g., in the case of an injury inflicted upon himself. We say, as a rule; for there are certain exceptions. They are as follows : i. The judge who is supreme — i.e., has no superior, namely, the Pope — can be judge in his own cause,^ though it were better and more conformable to natural law to commit the cause to arbi- trators or other judges, ordinary or delegated.* 2. Where there is question of matters pertaining to the exercise of vol- untary jurisdiction. 3. If the fact — v.g., the injury to the judge — is notorious. 4. Where the' matter does not directly and principally affect the person of the judge, but his church or dignity, though canonists say that even in this case the judge can be objected to as suspected, because of his presumed lean- ing or attachment to his church or dignity.' 5. When there is doubt whether the jurisdiction of the judge extends to the case brought before his tribunal ; for, in this case, the judge can, as a rule, declare whether he has jurisdiction or not. This is evident from the Roman law adopted by canon law : ^ Cap. Postremo 36, De Appell. (ii. 29). ^ Schmalzg., 1. ii., t. i., n. 17. ^ Cap. Causam 18, De Judic. (ii. i). * Arg., cap. 12, De Judic. (ii. i); ex 1. et hoc 41 ff., De Haer. Inst. ^ Schmalzg., 1. c, n. 18. * lb., n. 19. 24 Various Persons who usually take part in Trials. ^''Praetoris' {j'udicis) " est aestimare an sua sit jurisdiction ' The reason is that in this case the judge cannot be said to judge in his own cause, since he does not derive any personal bene- fit or satisfaction from his decision. We say, as a rule ; for in three cases the judge cannot decide whether or not he has jurisdiction in the case, namely, i, when a defect is objected to him affecting his own person — v.g., that he is excommuni- cated, infamous, or incapable of having jurisdiction ; 2, when he is challenged as suspected, unless the challenge is frivo- lous ; 3, if the judge, whose jurisdiction is called in doubt, would receive a notable benefit by trying the cause." 722. Is a judge competent, from the fact that he is so con- sidered, although in reality he has no jurisdiction : in other words, are the acts and sentence of a judge valid, who is re- puted to be competent, or vested with jurisdiction, but who in reality has none? We have already sufficiently answered this question above, n. 223-226. 723. Q. What are the general duties or obligations of judges? A. I. They must have sufficient knowledge. A judge who pronounces an unjust sentence, because of a want of sufficient knowledge, commits a mortal sin, and is bound to make restitution to the party injured. Hence a judge des- titute of the necessary learning cannot be absolved in con- fession, unless he resigns his office, or has a firm purpose of so doing.^ Moreover, if a judge finds he has made a mistake, even though without any grievous fault on his part, and thus injured one of the litigants, he is bound to correct it, or hin- der its effects, if he can do so without incurring a bad name. He may try to rectify his mistake, v.g., by telling the injured party to appeal, or by suggesting other suitable remedies.\ 724. 2. A judge sins mortally by deferring without just ' L. 5 ff., De Jud. (v. i); ex 1. unica, C. Si Quis Imp. Maled. (ix. 7). * Schmalzg., 1. c, n. 19 (4). ^ S. Thomas, 2. 2, q. 66, art. 2. Various Persons who usually take part in Trials. 25 cause the hearing of cases for a very notable time ; and he is bound to make restitution to the injured party for all dam- ages and expenses caused by the unjust delay.' 725. 3. Both by divine and ecclesiastical law, a judge is forbidden to accept gifts from the litigants/ A judge who accepts gifts of considerable value is not only guilty of mor- tal sin, but also bound to restore them. Nor can he be re- leased from this obligation by the remission of the parties from whom he received the money or present. This is expressly enacted by Pope Boniface VIII., as follows: ." Si quid autem contra Constitutionem praesentem" (judex eccle- siasticus)" receperit, ad.ipsius restitutionem integram tenea- tur: nulla eorum, quibus restitutio facienda fuerit, remissione ulatenus profutura eidem." ^ In like manner, persons giving or receiving anything for the obtaining of a favor, or of jus- tice from the Holy See, formerly incurred ipso facto excom- munication, and that reserved. We S2iy, formerly ; for this censure is not mentioned in the Const. Apost. Sedis of Pope Pius IX., and is therefore no longer in force. If the above persons — namely, those giving or receiving presents in the case — are ecclesiastics, they are deprived, even at present, of all their offices and benefices.* However, if the ecclesiastical judge has no fixed stipend or suitable means of support, he can demand an honorary from the litigants.V 726. 4. The judge is the guardian or custodian, not the arbitrary controller, of the law. Hence he must take the law as it is, and give his decision in accordance with it. Now, in civil causes, he must as a rule pronounce sentence accord- ing to the more probable opinion. We say, in civil causes; for in criminal causes the accused should be pronounced not guilty, unless his crime is proved beyond a doubt or to a * Ferr., V. Judex, n. 32. ' ' Exod. xxiii. 8; Deut. xvi. 19; Can. Judices 23, et Can. Jubemus 126, Caus. I, q. I. * Cap. Statutum 11, De Rescript., in 6° (i. 3). * Craiss., n. 5564. ^ Ferr., V. Judex, n. 45. 26 Various Persons who usually take part in Trials. certainty. We said also, as a rule; for certain grave civil causes are placed on an equal footing with criminal causes, and the sentence, in their case, must be given upon proofs which give not merely a greater or less degree of probability, but certainty. Thus full and complete proof is needed, of the nullity, in order that a marriage which has been contracted may be declared invalid. Where, all things considered, the judge finds that both the litigants have equally probable opinions in their favor, or that equally strong arguments or proofs militate in favor of each of the contending parties, he should, in civil causes, divide the object equally between the parties, or advise a compromise, or arbitration.' If however, in the case, one of the parties has bona fide possession of the object in dispute, decision should be given in his favor, ac- cording to the Reg. juris ii, in 6° : " Cum sunt partium jura obscura, reo favendum est potius, quam actori ;" and the other Reg. juris 65, in 6° : " In pari delicto vel causa, potior est conditio possidentis." And this holds even when the arguments or proofs favoring the plaintiff are more probable than those favoring the defendant, or the one in actual pos- session of the controverted thing, provided the reasons mili- tating in favor of the latter are really probable or good.' An exception, however, must be made in favor of privileged causes, namely, marriage (as we have just seen), dowers, and testaments.' Because the law of the Church expressly declares that when in these causes the proofs are equally strong or probable on both sides as pro and con, judgment is to be given in favor of the validity of the marriage, testa- ment, dower, etc.*/ 727. 5. As a rule, the judge must pronounce sentence ac- cording to the evidence or testimony submitted — secundum allegata et probata!" But is he bound to do so, even when ' Ferr., 1. c, Nov. Add., n. 10. 'Craiss., n. 5567. ^ Fern, 1. c, n. 54. * Cap. ExLitteris 3, De Prob. (ii. 19). ^ Ex Can. Judicet4, Caus. 3, q. 7. VarioiLS Persons who usually take part in Trials. 27 his own private information or knowledge is to the contrary ? The question is disputed. There are three opinions. The first, that of St. Thomas/ affirms universally. The second denies universally. The third, which Ferraris" calls more probable than the other two, distinguishes and holds that the judge can and should pronounce sentence according to the allegata et probata in civil, and also in those criminal causes {causae criminales minores) where the punishment to be in- flicted is merely a pecuniary fine, dismissal from office, etc., but not in graver criminal causes, or those w^here the punish- ment of death or mutilation is to be inflicted. As the Church never inflicts the penalty of death or mutilation, it would fol- low from the third opinion that the ecclesiastical judge in the case must always pass sentence in accordance with the evidence, or seamdum allegata ct probata, even against his own certain private knowledge, save in the case where he would have to oblige a woman to live with a man not her husband. Whatever opinion a person may choose to follow, it is cer- tain that the judge, in the case, is bound to do all in his power to procure the acquittal {v.g., by closely questioning the witnesses, endeavoring to find reasons for dismissing the charge) ' of an accused person, whom of his own private knowledge he certainly knows to be innocent ; and that, if he cannot succeed in doing this, he should, if possible, send the case up to the higher judge." 728. Q. Can a judge pronounce an accused person guilty, who by the juridical evidence is not proved guilty, but whom, of his own private knowledge, he certainly knows to be guilty ?/ A. He cannot. For, as we have seen, a judge is bound, as a rule, to pronounce sentence, not according to his own private information, but secundum allegata et probata. Hence ^ 2. 2, q. 64, art. 6, ad. 3. * V Judex, n. 60. * Ferr., 1. c, n 63. * Craiss., n. 5570, 28 Varioiis Persoois who ns7ially take part in Trials. he cannot condemn any person, unless the latter has been juridically proven guilty. This principle is very lucidly explained b}^ St. Thomas,' as follows : " Sed contra est quod Ambrosius dicit super psalterium, Bofius judex nihil ex arbi- trio suo facit, sed secundum leges et jura pronuntiat. Sed hoc est, judicare secundum ea quae in judicio proponuntur et probantur. Ergo judex debet secundum hujusmodi judicare, et non secundum proprium arbitrium." He then lays down this conclusion : " Cum judicium ad judices spectet, non secundum privataiJt, sed publicam potestatem, oportet eos judicare, non secundum veritatem, quam ipsi, ut personae privatae fioverunt; sed secundum quod ipsis, ut personis pub- licis, per leges, per testes, per instrumenta et per allegata et probata res innotuit." '' 729. Q. Is the above principle — namely, that ecclesiastical judges must pronounce sentence seciindum allegata et probata — also applicable to Commissions of Investigation in the United States and England ? In other words, are Commis- sions of Investigation in the United States and England obliged to make up their verdict or opinion, on the merits of the cause submitted to them for investigation,' according to the allegata et probata ?\ A. We feel inclined to answer in the affirmative, and that on the principles laid down by St. Thomas. For as the Angelic Doctor says : " Judicare pertinet ad judicem, secun- dum quod publica potestate ; et ideo informari debet in judi- cando, non secundum id quod ipse novit tanquam privata per- sona, sed secundum id quod sibi innotescit tanquam personae publicae. Hoc autem innotescit ei . . . in particular! negotio aliquo" (judicio aliquo) " per instrumenta et testes, et alia hujusmodi legitimadocumenta, quae debet sequi in judicando, magis quam quod ipse novit tanquam privata persona."* However, it might be objected that Commissions of Investi- 1 2. 2, q. 67, art. 2. « 1. c. 3 Instr. S. C. de P. F., 20 Jnlii, 1878, § 9. * 1. c, 2. 2, q. 67. Vari02is Persons who usually take part in Trials. 29 gation in the United States and England are not judicial bodies proper, as they do not and cannot pronounce the final sentence, but merely give their verdict or opinion on the case, which the bishop, who is the judge, is at liberty to dis- , regard ; that, consequently, the reasoning of St. Thomas does not apply to these Commissions. The objection does not seem to us well taken. For the S. C. de Prop. Fide, in its reply to the Dubia or questions proposed by bishops of the United States, concerning the meaning of the Instruction of July 20, 1878, on Commissions of Investigation, expressly de- clares that these Commissions do exercise judicial functions, as the investigation or trial is committed to them exclusively. So far, then, as concerns the trial or hearing of the cause, the Commissions of Investigation take the place of the judge proper, or bishop ; this part of the judicial proceedings hav- ing been transferred by the Holy See from the ordinary to them. Hence they form an integral part of the Bishop's Court, act as judges, so far as concerns the investigation, and are bound to follow the same rules which the judge proper would be obliged to observe if he conducted the trial personally. What, therefore, St. Thomas says above of judges, also applies to Commissions of Investigation. Again, the opinion or verdict of the Commission forms the basis for the sentence or action of the bishop, and in case of appeal, also of the superior to whom the appeal is made. Now, as we have seen, the judge (in our case, the bishop, or on ap- peal, the metropolitan) can, as a rule, base his decision only on juridical proofs — that is, he must decide seamdum allegata et probata. / 730. But it may again be objected that the trial or hear- ing of the cause before the Commission of Investigation is not a canonical trial proper or processus canonicus; that, con- sequently, neither the Commission of Investigation nor the bishop need decide secundum allegata et probata, but may act upon private information. This objection also seems to us 30 Variotis Persons who usually take part in Trials. destitute of a solid foundation. For that the proceedings or functions of Commissions of Investigation are judicial, is too obvious to admit of dispute, and is, moreover, expressly de- fined by the Propaganda, in its reply Ad Dubia, when it says : " Ex quibus patet ofiicium Consiliariorum judiciale quidem esse, cum instructio" (the trial or hearing of the cause) " sit iisdem commissa." Consequently the Commissioners and the bishop act as judges, each in his own sphere. Now St. Thomas, as we have seen, lays down the principle that whenever superiors proceed as Judges, they are bound to decide seciinduni allegata et probata. Moreover, canonical trials are, as we have shown, divided into ordinary and sum- mary or extraordinary. Now in the latter many of the for- malities prescribed for the former may be omitted. Yet will any one on that account say that in summary or extra- ordinary trials the judge need not decide secundum allegata et probata ? 731. Finally, it seems scarcely necessary here to say that the very object and aim of all judicial proceedings is to pre- vent the judge from acting on his own private information, and thus being led into error. Hence we conclude that as Commissions of Investigation exercise judicial functions, the hearing of the cause being committed to them, and as their opinion or verdict forms the basis of the sentence of the bishop, they should, in making up their verdict,' be guided, not by their private information, but by what has been juridi- cally proved. However, if the private knowledge or infor- mation of a member of the Commission of Investigation conflicts with that juridically obtained, he can and should make use of his private knowledge in order to examine the testimony more closely, so as to discover its defective- ness.' I 732. How are delegated judges appointed? or how are 1 Cf. Instructio S. C. de P. F., 20 Julii, 1878, § 9. » Cf. S. Thomas, 1. c. Various Persons who jtsically take part in Trials. 3 1 judges appointed by delegation? We have already suffi- ciently answered this question above, under n. 227, 228. 733. Who can be appointed delegated judges? or upon whom can judicial power be delegated ? The answer has already been given above, under n. 231-235. We here but add that an ordinary judge— •z/.^., a bishop — can delegate causes of his court not only to a person subject to him, but even to one not subject to him ; in other words, a bishop can authorize a person not belonging to his diocese, and there- fore not subject to him, to act as judge in his stead. The latter, however, cannot be compelled to accept the office, while a subject can.' 734. Q. How can and should delegated judges proceed when several (two or more) are appointed to take cognizance of the same cause ?/ A. We premise : They are appointed ia) either in solidiun, {b) or only simplicitcr, {c) or in such manner that if all cannot hear the cause together the rest can do so. We now answer: I. If they are appointed in solidum, — that is, if in the letter of their appointment the following or a similar formula is used " Ut omnes, ant duo, z'^/ unus mandatum exequantur, aut exequatur" ; in other words, if the formula of appointment expressly states that the cause may be heard and decided either by all of the delegated judges, or by two, or even by one of them, then there is room for prevention, — i.e., preoccu- pation or anticipation, — so that if one of them has begun to hear or try the cause without the others, the latter cannot interfere or take part in the proceedings, save in case the delegated judge who began to hear the cause is hindered from proceeding by infirmity or other cause, or maliciously refuses to go ahead.'^ Hence, in this case, each one of the delegated judges can individually or by himself, and without ' Ex Cap. Pastoralis 28, De Off. Jud. Del. (i. 29). Schmalzg., h. t., n. 16. 2 Cap. 8, De Off. et Pot. Jud. Del. in 6° (i. 14). 32 Various Persons who usually take part hi Trials. the others, hear the cause, as the Cap. just quoted expressly declares : " Ipsorum quilibet injunctura potest libere adim- plere mandatum." ' 735. 2. If they are appointed, not in solidiini, but simpliciter, and without the above or other similar clause empowering them to act or proceed separately : in other words, if the in- strument of their appointment simply states that a certain cause or causes are committed to them, and does not state in express or equivalent terms that they can proceed indi- vidually or separately, then they must proceed collectively, and in a body ; and one cannot hear the cause without the others, even where one of them is legitimately hindered or has died. Otherwise the proceedings are ipso jure null and void, except when the letter of appointment states differently. Thus Pope Alexander III. says: "Cum causa duobus com- mittitur, sententia unius non tenet." " | 736. 3. If several are appointed to hear the same cause, in these or similar words : " Ut si omnes interesse nequiverint, reliqui mandatum exequantur," ^ they must indeed proceed collectively or in a body ; but if one or the other of them is absent by reason of a legitimate excuse, the rest can proceed without the absentee, provided the excuse of the absent member be properly communicated — v.g., by the absentee in person, or by letter or messenger from him, or in some other canonical manner — to the remaining delegated judges ; otherwise — i.e., without such notification — the latter cannot proceed ; and if they, nevertheless, do proceed, their acts are null and void. But if any one of them refuses to attend, where it is possible for him to be present, — i.e., where he is not lawfully hindered, — the rest can proceed as soon as they have certain or undoubted information of the refusal on the part of their colleague. The latter commits a grievous sin ' Cf. Schmalzg., 1. i., tit. 29, n. 17. « Cap. 16, De Off. Jud. Del. (i. 29). Schmalzg., 1. c. 3 Cap. 21, De Off. Jud. Del. (i. 29). Var totes Persojts who usually take part in Trials. 33 by his action.' For the rest in the above cases, as in all cases where a matter is to be adjudicated by several per- sons collectively, the opinion of the majority is to be fol- lowed ; in other words, the majority decides. When the votes are equally divided, recourse must be had to the sUv perior from whom the delegation emanated." 737. Q. Whether and in what manner the foregoing prin- ciples apply to Commissions of Investigation in the United States and England ? A. We premise : i. These Commissions, as established in the United States by the S. C. de Prop. Fide, July 20, 1878, for the adjudication of criminal and disciplinary causes of eccle- siastics, are composed of five, or where so many cannot be had, of at least three members, who must be priests of the highest integrity, and, as far as possible, learned in canon law.^ 2. That these Commissions must proceed collectively, is plain from the Instriictio quoted.* Hence, too, it is ex- pressly provided in said Instructio that each and every mem- ber of the Commission shall be invited to the proceedings, and that b}'^ letter." 3. The vote of the majority decides or rules, and that not only in regard to the final opinion or ver- dict,^ but also all interlocutory sentences — i.e., all interme- diate steps, resolutions, or proceedings. / 738. We now answer: i. It is certain that in all cases where a member absents himself without legitimate cause, which he is bound to communicate to the other members of the Commission, — v.g., by letter or messenger, — he commits a mortal sin, being guilty of disobedience or contempt (or at least indifference and carelessness) of a grave command of the Holy See, which, in establishing these judicial councils or bodies for this country, has at least impliedly ordained that each and every member shall attend the proceedings of the ' Cap. 21, cit. ** Bouix, De Jud., vol. i., p. 151. 3 Instr. S. C. de P. F., 20 Julii, 1878, g Itaque. *Cf. lb., §9. Mb.,' §3. «Cf. lb., §9. 34 Various Persons who usually take part in Trials. Commission. The reason is thus given by PopeCelestin III., in speaking of delegated judges: "Ilia fuit antiqua sedis apostolicae provisio, ut hujusmodi causarum recognitiones, duobus, quam uni, tribus quam duobjs, libentius delegaret, cum integrum sit judicium, quod plurimorum sententiis con- firmatur." ' In fact, it is clear that the superior, in charging several persons to take cognizance together of the same cause, does so precisely because he has greater confidence in the combined action and opinions of all than of some only. 739. 2. But are the proceedings invalid in case some of the members absent themselves from the meetings of the Commission ? They are not, in case at least three mem- bers are present, as we shall presently show. But what if less than three attend ? We distinguish. In causes or mat- ters which fall, properly speaking, under the competence of the Commission, — that is, which must, before decision is rendered by the bishop, be brought before the Commission, — three members at least must be present at all the proceedings in the case, and, upon the conclusion of the trial or hearing, give their verdict or opinion on the case. Otherwise the proceedings are null and void, and the subsequent action or sentence of the bishop invalid and of no effect. Thus the Instruction of the S. C. de Prop. Fide of July 20, 1878, speak- ing of the case of dismissal, expressly says : " Quod si de alicujus Rectoris Missionis remotione agatur, nequeat ipse a credito sibi munere dejici, nisi tribus saltern praedictae Com- missionis membris per Episcopiini ad causam cog7iosccndain adhibitis, eorumqtie consilio audito!'^ Hence if, during the course of an investigation or trial in such causes, the number of commissioners attending the proceedings should be re- duced to less than three, whether by death, resignation, chal- lenge, or otherwise, others must be appointed to fill up the number,' and meanwhile all proceedings suspended./ > Cap. 21, cit. s Instr. cit., § Quod si. 8 Cf. Instr. cit., § Electi Consiliarii; cf. Ad Dubia, § Extra Synodum. Various Persons wJio usually take part in Trials. 35 740. 3. When there is question of other causes not neces- sarily to be brought before the Commission of Investigation, it is plain that the proceedings are not invalid, nor even, at least theoretically speaking, illicit, if less than three mem- bers of the Commission attend. For in these cases the Commission would act or obtain competence by the consent of the litigants, who may agree to allow a less number than three to sit upon the case. We say, theoretically speaking; for it is evident from the whole tone of the Instructio, dated July 20, 1878, of the S. C. de P. F., and also from the practice of the Sacred Congregation of referring all cases whatever to the Commissions of the respective dioceses where the cause originates, that the Holy See desires all cases whatever of dispute among ecclesiastics to be submitted in the first instance to the Commission.' Consequently, it is also the desire of Rome that in all cases the mode of procedure of the Commission, and also the number of its members, be regulated by the Instruction of July 20, 1878./ 741. In connection with this matter it need scarcely be said that Commissions of Investigation in the United States or England cannot proceed to take cognizance of a cause, save upon being convened by the bishop {sede vacante, admin- istrator), to whom alone belongs the initiative." But when once convened by the ordinary according to §3 of the above Instruction, the Commission itself, and not the ordinary, determines whether, when, and how often future meetings or sessions are to be held in the hearing of a case.' Of course if the bishop should unjustly refuse to call the Com- mission together, an appeal lies against such refusal, just the same as in the case of any other grievance. For as Pope Alexander III. says: " De ?i^^Q\\2it\ombus pro causis ininiinis interpositis, volumus te tenere, quod eis, pro quacunque levi ' Cf. Instr. cit., § Commissionis ita; § In Causis Cognoscendis. ^ Instr. cit., § 3 Locum. ^ instr. cit., § 10 Quod si ulterior. 36 Various Persons who usually take part in Trials. causa fiant, non minus est, quam si pro majoribus fierent, deferendum." * 742. Q. Can a delegated judge proceed to take cognizance of the cause before he has received the rescript or letter of his appointment or delegation ? A. He cannot. If he, nevertheless, does so, his acts are null and void.'' Nay, the letter of appointment must be shown in its authentic form to, and a copy of it given, the contending parties when they appear before the delegate. Otherwise they are not bound to obey him.^ The reason is, among others, that nobody is presumed to have judicial power in a place but the ordinary judge of such place, unless the contrary is proved. Yet there are some exceptions. Thus: I. A delegate of the Pope need not show his letter of appointment if the litigants and the ordinary are willing to take his word for it. 2. Persons delegated by an ordinary, inferior to the Pope, can prove their appointment or delega- tion by witnesses, and not merely by their letters of appoint- ment. 3. If the contending parties have commenced pro- ceedings before the delegate, prior to being shown his letters of appointment, the proceedings are valid, because the parties have thus waived their right of seeing the letters." 743. Q. How far does the power of a delegated judge extend ?\ A. Speaking in general, the power of a delegated judge is to be measured from the authority of the superior dele- gating and the wording of the mandate or commission, so that if the delegate goes beyond his mandate, his acts are null and void.^ He does not, however, go beyond his man- date if he takes cognizance of or decides those matters or questions which, though not directly committed to him, are ' Cap. II, De Appell. (ii. 28); supra, n. 444. "^ Cap. 12, De Appell. (ii. 28). 3 Cap. 31, De Off. Jud. Del. (i. 29); cap. 24, De Rescript, (i. 3). ^ Schmalzg., 1. i., tit. 29, n. 27. ^ Cap. 32, 37, De Off. et Pot. Jud. Del. (i. 29); Schmalzg., h. t., n. 28. Various Persons who ustially take part m Trials, -x,*] nevertheless connected with or accessory to the matter or cause delegated to him. In other words, he can, even though this be not expressly stated in his commission, do all those things or has all that power, without which he could not properly perform the office assigned to him. The reason is that a person who authorizes another 'to do something, by that very fact empowers him also to use all the means neces- sary or conducive to the end to be attained.' Thus Pope Alexander III. expressly says : " Quia ex eo, quod causa sibi " (delegato) " committitur, super omnibus, quae ad causam ipsam spectare noscuntur, plenariam recipit potestatem." " Hence, even though it be not mentioned in the mandate, the delegated judge can, among other things, [ci) cite the parties, and compel them by penalties to appear before him ;' {b^ he can — v.g.^ where the parties cited object that he has no juris- diction to try the case, because, for example, the letters of his appointment are null and void — declare whether he has jurisdiction or not.* 744. Q. Do the principles just given apply also to Com- missions of Investigation in the United States?/ A. They do, in the sense now to be explained. We need scarcely observe that the .powers of these Commissions are to be determined by the Instruction of the S. C. de P. F., dated July 20, 1878 (as explained by this Sacred Congrega- tion in its dinsvfQr Ad Dubia), which establishes these Com- missions and defines their rights and duties. According to this document, these judicial councils are charged with the absolute and exclusive hearing of certain kinds of causes, exclusive of the citation of the defendant and the definitive sentence, which are reserved to the bishop.* If the above Instruction itself could have left any doubt upon this head, > Schmalzg., 1. c, 2. 31. « Cap. 5, De Off. Jud. Del. (i. 29). 3 Cap. 4, De Off. Jud. Del. (i. 29). * Ex. cap. 33, De Rescript, (i. 3); Schmalzg., 1. c, n. 34. * Instr. cit. , § Commissionis ita; § In Causis Cognoscendis. 2,8 Various Persons who usually take part in Trials. the decisions of the Propaganda Ad Dubia have certainly removed it. For the Propaganda expressly says that the hearing of the cause is committed to these Commissions. Its words are : " Cum instructio sit iisdem commissa." ' Hence, according to the principles above laid down by us, these Commissions have all those powers without which they could not fully and properly hear and examine the causes or mat- ters brought before them, and that even though such powers are not expressly mentioned in the above Instruction of the S. C. de P. F., or its decisions Ad Dubia. Hence also, so far as concerns the hearing of the cause, or its full and complete investigation, this power extends not merely to the naked ascertaining of facts, but also to the mode or means of ascer- taining them. In other words, they have power to deter- mine, or rather apply, those questions of ecclesiastical law which com.e up in, and are incidental to, or connected with the hearing of the cause. Otherwise, they could not try the cause properly. This is also inferable from the fact that the above Instruction calls the Commission a " Consilium quoddam^V/^zWrt:/^,"'' and directs that as far as possible its members should be canonists, or learned in canon law.^ 745. When and how does the jurisdiction of a delegated judge lapse ? The answer has been already given." In con- nection with this question, we ask, When does a member of a Commission of Investigation in the United States cease to be a member, and therefore loses the rights of a member of the Commission ? The answer is sufficiently indicated in the above Instruction.^ > Ad Dubia, § Ex quibus. * Instr. cit., § In Causis Cognoscendis. 2 lb., § Itaque SSmo. * Supra, n. 378, 379. ^ Instr. cit., §. Electi Consiliarii; supra, n. 407. Various Persons who usually take part in Trials. 39 Art. 1 1. Of. the Plaintiff {actor, acctisator) and the Defendant {reus). 746. Under this heading we shall treat of two questions : First, What persons are admissible in ecclesiastical courts as plaintiffs or defendants. Secondly, Can a person be com- pelled to appear before the ecclesiastical judge, either as plaintiff or defendant? 747. I. WJiat persons are disqualified frorn acting as plain- tiffs or defendants f—K's, in secular, so in ecclesiastical courts, not all persons can appear as plaintiffs or defendants or have a standing in court {persojia stajidi), some being incapacitated by the natural law, others by the ecclesiastical, others by both. Now, what persons are chiefly excluded from acting as defendants or plaintiffs in ecclesiastical courts? i. Infants, or those who have not yet attained the use of reason ; persons of unsound mind {furiosi, anient es) \ the deaf, the dumb, and prodigals. These persons being unable to defend their rights, cannot personally be plaintiffs or defendants. We say, personally ; for their guardians can sue and be sued in their stead.' It may, however, be doubted at present whether this still holds of those deaf or dumb persons who, by our new methods of instruction, have learned to understand others, and make themselves understood by them. In the case of prodigals, the rule certainly holds in civil matters. Whether it does also in criminal causes, is not so clear.^ 748. 2. TJiose who are under the age of puberty. Persons under the age of puberty {impuberes) — i.e., under fourteen, — cannot indeed be plaintiffs or defendants personally ; but a guardian {curator ad litem) is to be appointed for them by the judge (we speak here of the ecclesiastical judge, namely, the bishop, vicar-general, etc.), or they may, if above the age of * L. Gerere i, § 2, sufEcit ff., de Adm. et per. tut. (26. 7); Schmalzg., lib. 2, t. I, n. 23. ^Bouix, 1. c, pp. 168, 169. 40 Various Persons who usually take part in Trials. infancy, be allowed by the judge to select their own agent (^procurator) themselves.' There are, however, some excep- tions to this rule. Thus, in criminal causes, children or wards may be admitted as plaintiffs if otherwise the crime could not be proved. For the public good demands that crimes shall not remain unpunished.^ It is certain that minors — i.e., persons above the age of fourteen, but under the age of twenty-five, may in spiritual causes, or those connected with them, either personally or by an agent appointed by them, implead and be impleaded.^ 749. 3. Women, with certain distinctions. — Thus, religious women, even though not under enclosure, as most of the sisterhoods in the United States, cannot even with their own consent appear in any cause whatever personally in court, ecclesiastical or secular, whether as plaintiffs, defendants, or witnesses.* We say, appear personally ; for where it is neces- sary to receive their testimony, the judge should either go in person, or send a deputy to the convent, and take their deposition there." As to other women, — i.e., secular women, — they should not in civil causes be compelled to appear per- sonally in court (we speak of the ecclesiastical court). We say, compelled ; for if they choose, they may in such causes sue or be sued in person, and not merely through procurators. In criminal causes, however, they are not permitted to act as plaintiffs or rather accusers,* save {ci) in order to prose- cute an injury inflicted upon them or others belonging to them; {p) where the public good demands it; {c) or the cause is such as to require their personal presence.' We said, to act as plaintiffs ; for when they are accused of an atrocious crime, they can be compelled to appear in court as defendants.* ' Cap. Si annum 3, de Judic. in 6° (ii. i). * Schmalzg., 1. c, n. 25. ^ Cap. Si annum, cit. •• Cap. Mulieres 2, de Judic. in 6" (ii. i), ^ Arg. ex cap. Mulieres, cit. ^ L. 8 ff., de Ace. et inscr. (48. 2). ' Schmalzg., 1. c, n. 30. ^ Nov. 134, cap. 9. Various Persons who usually take part in Trials. 41 750. 4. Persons imdcr major excommunication} Here we must distinguish between those excommunicates who are to be shunned {vitandi), and those who need not be avoided {tolerati). I. It is certain that those who are to be shunned cannot as a rule (i) act as plaintiffs. We say, as a rule ; for there are several exceptions. Thus, such excommunicates can, among other cases, act as plaintiffs ia) when they wish to prove that the excommunication inflicted on them is, ipso jure, null and void ; not, however, when they merely desire ■to show that it is simply unjust, though valid. For, in the latter case, they would first have to be absolved from the excommunication before they could be allowed to proceed.'* {b) In all cases where it is necessary. (2) They can, as a rule, be admitted, nay, compelled, in any cause whatever, to appear in court as defendants.^ We say, as a rule ; for when they appear voluntarily, — i.e., without having been cited, either generally or specially, — and for their own benefit as defend- ants, they should be rejected.* II. An excommunicate who need not be shunned can be admitted as plaintiff, provided neither the opposing party nor the judge objects. He may appear as defendant, even when he does so of his own free will or for his own benefit, if the opposing party and the judge consent.^ 751. 5. Regulars, in the sense now to be explained. We observe, we speak here only of members of religious orders of males ; for of religious communities of females we have already spoken." Regulars who are professed may be con- sidered, either individually or collectively. Taken individu- ally, regulars cannot, as a rule, appear in a court, ecclesiastical or secular, except by permission of their superior. The reason is, that by their profession they become dead to the world, cease to be sui juris, and are placed on the same foot- ' Cap. 7, de Jud. (ii. i). * Ex cap. I, de Rescript., in 6° (i. 3); Schmalzg. , 1. c, n. 34. ^ Ex cap. 7, cit. •• Schmalzg., 1. c, n. 33. ^ Craiss., n. 5605. ^ Supra, n. 750. 42 Various Persons who usually take part in Trials. ing as sons still under the control of their father, who can- not, as a rule, act in court without the consent of their father.' We say, as a rule. For the exceptions we refer to Schmalzgrueber." But can the religious of a monastery, taken collectively, appear in court as plaintiffs or defendants ? In other words, can a monastery or religious house (the same applies to churches and other ecclesiastical corporate bodies) as such implead and be impleaded ? As monasteries and churches are moral persons, vested with various rights, they must evidently have the right to sue and be sued, though this cannot be done, except through certain persons, to whom the law of the Church has committed the duty of acting as plaintiffs or defendants in the name of the church or monastery.' Now to what persons has the law of the Church committed this duty ? As a rule, to the prelate of the monastery, at least with the consent of the monks, and to the prelate of the church, at least with the consent of the chapter.* Thus Pope Innocent III. says: "Cum ex officio suo teneantur" (abbates, praelati) " Congregationum suarum negotia procurare." ^ By prelates are here meant {a) bishops in respect to their cathedral church : {h) prelates having quasi-episcopal jurisdiction in a church where there is a chapter ; {c) the chief superiors of rehgious orders, namely, abbots and superiors-general, and generally provincials and local superiors, according to the rules of their order. By the common law of the Church, abbesses and other lady superiors of religious female communities can, in matters of their respective houses, appear in ecclesiastical courts as plaintiffs or defendants by procurators or agents, in the same manner as prelates of regulars.* ' L. 8, C. de Bonis, quae lib. (v. 6i); cap. 3, de Jud., in 6° (ii. i). ' 1. c, n. 38. 3 Bouix, de Jud., vol. i., p. 177. ^ Can. 9, caus. 18, q. 2; cap. Edoceri 21, de Rescript, (i. 3); Craiss., n. 5607. 6 Cap. Edoceri, cit. * Cap. 2, de his quae a prael. (iii. to); Glossa, in hoc cap., v. Continebatur; Schmalzg., 1. c, n. 40. Various Persons ivJio ustially take part in Trials. 43 752. Q. To whom pertains by the common law of the Church the right to appear as plaintiff or defendant when there is question of the rights and property of parish churches? A. To the parish priest, as is inferred from the above cap. Edoceri. Because, by the common law of the Church, the parish priest also is vested with the administration of the rights and property of his parish. This must not, however, be understood to the exclusion of the bishop. For the latter has cumulative power over all the churches of his diocese not exempt from his jurisdiction. A fortiori, rectors of parishes in the United States cannot act in the case to the exclusion of the bishop. What has been said of parish priests applies also to rectors of hospitals and other chari- table or religious institutions. Observe that in the above question we say, by the common lazv of the Church; for a great deal depends, in this matter, upon custom and concordats.' 753. II. Can a person be compelled to appear against his will as plaintiff or defendant ? The defendant certainly can ; and if he refuses to appear he may be proceeded against, even though absent, and condemned, if found guilty upon due investigation or trial. But, as a rule, no one can be com- pelled to appear against his will as plaintiff, whether in civil or criminal causes. Thus the Roman law adopted by the Church says : " Invitus agere vel accusare nemo cogatur." ' 754. Q. Can a plaintiff or defendant be compelled to appear in person ? Or, are they always free to appear by proxy — i.e., by an agent or procurator? A. I. The Sovereign Pontiff can certainly compel the parties to appear personally, and not merely through agents. The same applies to Papal delegates when they have a special mandate to that effect.' For while it is true that the law of 1 Schmalzg., 1. ii., t. i, n. 40; cf. Bouix, 1. c, p. 181. ^ L. Unic. C, Ut nemo inv. ag. vel ace. cog. (iii. 7). 2 Ex cap. Juris i, de Jud., in 6° (ii. i); Glossa, in h. c, v. Speclale, 44 Various Persons who usually take part in Trials. the Church, as we shall see, allows litigants to appear in court by proxy,' it is also certain that the Pope is not bound by this law.^ 2. The other judges (we speak of ecclesiastical judges) cannot, as a rule, compel persons to appear person- ally in court.' We say, as a rule ; for there are several exceptions, namely, {a) where the cause is criminal and the punishment to be imposed is corporal, or considered greater than exile. In all other criminal causes the defendant and, a fortiori, the plaintiff may appear by proxy or procurator. {b) If it is specially necessary to examine the personal qualities of the parties." {c) Where the truth or facts of the case can be better elicited or understood by the personal statement of the plaintiff or defendant.'' {d) When the indications of the guilt of the accused are so strong as to give well-grounded hope that the truth will be more easily ascertained by his presence, his looks, his answers, etc. Several other excep- tions are given by Schmalzgrueber.* In a word, the judge may compel litigants to appear in person whenever he has grave cause to think that the truth will thereby be better ascertained.'' Without such grave and sufficient cause, — i.e., except where it is necessary, as stated, — the ecclesiastical judge, inferior to the Pope, cannot summon the parties to appear in person against their will ; and if he nevertheless does so, his act is null and void.* Moreover, the cause for citing the party to appear in person must be stated in the citation. Otherwise the party cited can suppose there is no sufficient cause, and disobey the citation.' 755- Q- Do the principles just laid down in regard to the personal appearance in court apply also in the United States to plaintiffs and defendahts summoned before Commissions of Investigation ? ' Cap. 2, de Proc. (i. 38). *SchmaIzg., 1. c, n. 45. * Cap. Juris, cit. ; ibi Glossa, v. Juris esse. * Ex 1. 2, C. de his qui van. aet. imp. (ii. 45). * Cap. 14, de Jud. (ii. i). " 1. c, n. 47. ■" Bouix, 1. c, p. 186. * Cap. Juris, cit. ^ Bouix, 1. c. Various Persons who itsually take part in Trials. 45 A. We see no reason why they should not. For the Instruction of the S. C. de P. F,, of July 20, 1878, says nowhere that the defendant or other parties must appear in person. Consequently, unless it is expressly stated in the citation that the accused must come in person, and the cause therefor given, it would seem that he has the alternative of appearing either in person or by proxy. Of course, accord- ing to the above principles, he can be summoned and' com- pelled to appear in person before the Commission, whenever this is thought expedient or necessary. Moreover, it is nearly always in the interest of such defendant to be person- ally present at the proceedings, even when he is represented by a procurator. Art. III. Of Procurators or Agents, 756. Sometimes it will happen that a person does not wish or is unable to defend his rights in person. Hence, as in secular so also in ecclesiastical courts, litigants can, as we have seen, appear either in person or by a procurator (in secular courts, attorney). 757. What, then, is a procurator? Speaking in general, a procurator {procurator) or agent is a person qui aliena ncgotia mandato domini administrate or one who transacts business for, or acts in the name of, another. In other words, and to speak more fully, a procurator is one who is appointed by another (called the principal), unwilling or unable to attend personally to his own affairs, to manage in whole or in part, in his absence, these affairs, whether they be judicial or extrajudicial.* Hence a procurator differs {ci) from an advocate, because the latter merely assists a client who is present, while the former takes the place of the prin- ' L. I ff. de Procurat. (lii. 3). ^ Schmalzg., 1. i., t. 38, n. i. 46 Various Persons who usually take part in Trials. cipal himself, who is absent ; {U) from a guardian [curator, tutor), since the latter is appointed not by the ward or minor, but by the law, magistrate, or deceased testator, while the former is deputed by the principal himself. 758. Various kinds of Procurators. — How many kinds of procurators are there? i. Some are judicial [procurator judicialis,ad lites, ad judicid), others extrajudicial [procurator extrajudicialis, ad ncgotia extra Judicium tractandd), according ■as they are deputed for judicial matters, or matters not of a judicial nature. We speak here chiefly of judicial procura- tors. 2. Both judicial and extrajudicial procurators may be either general [procurator gencralis) or special [procurator spccialis), according as they are appointed either for [a) all extrajudicial affairs, or all judicial causes, [b) or only for a certain affair, or a determinate judicial cause. 3. A general procurator may be appointed either cum libera, — i.e., with full power or freedom to act for his principal in all causes or matters, — or only simpliciter, — i.e., without such full power.' 4. Some are appointed simpliciter cum aliis, — i.e., in such a manner as to be obliged to act jointly with others ; others, in solidum. Where two or more procurators are appointed simpliciter for the same affair or judicial case, they cannot proceed individually, but must act conjointly. But if they are deputed in solidum, each can act separately from the others, in the manner prescribed by Pope Boniface VIII.'' Here we may observe that the law of the Church does not restrict a person to one procurator, but allows him to appoint several for the same cause. (Ex cap. 6, De Proc, in 6°.) 5. Finally, there are principal procurators [procuratores prin- cipales) and mere substitutes [procuratores S7ibstitutt), accord- ing as they are appointed either by the principal himself or merely by his procurator. 759- Q- Who can appoint a procurator for himself ? ' De Angelis, 1. i., t. 38;!. i. p. ii., p. 352. ' Cap. 6, de Procurat. in 6° (i. 19). Various Persons ivho usually take part m Trials. 47 A. As a general rule, any person whatever, who is not forbidden by law, can appoint a procurator to act in his stead, and that even though he be present himself. The reason is that everybody can do through others what he can do in person, unless the law forbids it.' Now by the law of the Church persons under major excommunication are forbidden to appoint procurators to act for them as plaintiffs in judicial proceedings, for the reason that they cannot themselves act as such in person.^ We say, as plain- tiffs ; for they not only can, but should, appoint procurators to act as defendants for them. For the other persons who are disqualified, see Schmalzgrueber, 1. c, n. 4. 760. Q. What persons can be appointed procurators? A. All those who are capable of managing affairs, and are otherwise not expressly excluded by law. Now the law of the Church excludes as procurators ad lite s or in judicial matters, among other persons, {a) those who are under major excommunication, {b) or not yet twenty-five years old.* Laymen may be appointed procurators in spiritual causes, provided they exercise a simplex minister iuni, but no juris- diction or administration proper.* 761. Q. In what causes or matters can procurators be appointed to act for others ? A. In all causes, where it is not expressly prohibited by law. For, as canonists say, the edictunt de procnratore constit- nendo est prohibitoriiim. Hence the rule holds, in our case, that whatever is not expressly forbidden, is granted. And this is true of judicial causes, — i.e., matters adjudicated in court, — as well as of extrajudicial affairs.* We say, where it is not expressly forbidden by law. Now, does the law of the Church, in some cases, expressly forbid the appointment of * De Angelis, 1. c, p. 353. ^ Supra, n. 751; cap. 15, de Proc, (i. 38). ^ Cap. 5, de Proc. in 6° (i. 19). * Cap. I, de Procurat. in 6° (i. 19); De Angelis, 1. c, p. 355. * De Angelis, 1. c, p. 356. 48 Va7'ioiis Persons who nsimlly take part in Trials. a procurator, whether extrajudicial matters or judicial causes ? Space permits us here to answer only in regard to procurators for judicial causes. Concerning these, it may be said that the law of the Church makes no exclusion what- ever ; in other words, canon law does not forbid a principal to be represented in the ecclesiastical courts by a procura- tor, in any cause whatever," civil or criminal. As to civil causes, this is certain. As to criminal causes, it is true, as we have seen,' that where the punishment to be inflicted is corporal, or greater than exile, no procurator can be ap- pointed. But, as De Angelis" observes, ecclesiastical courts do not inflict death or mutilation. Hence, procurators are to be admitted before ecclesiastical courts in all criminal causes, namely, where dismissal from parish or benefice, ex- communication, suspension, and the like, are to be inflicted.' However, it must not be forgotten that, as we have already said,* the judge (we speak of the ecclesiastical judge) can for just cause command the personal appearance of the princi- pal, and thus exclude the procurator. As to the application of these principles to contending parties in the United States, before Commissions of Investi- gation, see n. 755. 762. Q. How are procurators appointed ? A. The procurator for the plaintiff must on pain of nul- lity, as a rule, have a mandate or authorization (called in secular courts, power of attorney)."* This mandate should state the name of the principalorappointer of the procurator appointed, of the plaintiff against whom, and of the judge be- fore whom the proceedings are instituted ; the nature of the matter or cause entrusted to the procurator, the day and year. Finally, the principal should state that he will ratify whatever is done by the procurator.* We have said, for the ' Supra, n. 754. ' L. c, p. 360. ^ Ex cap. 5, De Procur. (i. 38). ^ Supra, n. 754. * Ex cap. 4, De Proc. (i. 38). * De Angelis, 1. c, p. 361. Various Persons who usually take part in Trials, 49 plaintiff; for, absolutely speaking, a person may act. as procurator for an absent defendant, even without an express authorization. We say, moreover, as a rule ; for there are several exceptions, namely, among others: i. Where the pro- curator is one who is accustomed to act as procurator for parties, and brings with him the documents or papers relat- ing to the case ; ' 2. If he acts for others in a cause where he is a co-principal — i.e., where he is jointly interested with them.^ Here it must be observed that in all cases where a procurator acts without an express mandate, whether it be for a plaintiff or defendant, he must give security that the principal will ratify whatever has been done, or, to use a technical phrase, debet cavere de rato.^ "jGt,. Powers of Procurators. — Whatever the procurator does within the limits of his mandate is valid, whether it be beneficial or injurious to the principal, according to the rule: "Qui facit per ahum, est perinde ac si faciat per se ipsum.* Again, the judicial procurator becomes the dominus litis, and that, generally speaking, as soon as the litis contestatio has taken place ; '" or where the procedure or trial is summary, and no litis contestatio required, as soon as he has begun to act in the principal matter, or has taken the first steps in the cause/ Once he has become the dominus litis, he can appoint a substitute. We say, the judicial procurator becomes the dominus litis ; in other words, he takes the place and as- sumes the responsibilities of the principal himself. Hence, the citations and the like are to be directed to him, and not to the principal.' Herein, by the way, we again see how a procurator differs from an advocate. The latter, as such, — i.e., unless he acts also as procurator, — never becomes the 1 Cap. 34, De Off. Del. (i. 29). ^ L. Commune 2, C. De Cons. ej. lit. (iii. 40). ^ Dg Angelis, 1. c, p. 362. ■* Reg. 72 Juris, in 6 (v. 12); Devoti, 1. 3, t. 3, § 4. *Cap. I, De Procur., in 6° (i. 19). f De Angelis, 1. c, p. 354. ' Leur., For. Eccl., 1. i., t. 38, q. loio. 50 Various Persons who usually take part i7i Trials. domimis litis, but merely assists him ; hence the mandates of the court (in our case, the ecclesiastical court) are never directed to him, but to his client, or the latter's procurator. 764. Q. How does the office of a procurator expire ? A. Chiefly as follows: i. By the mutual consent of the principal and his procurator, and that even re non amplius integra, though without prejudice to a third party. 2. By revocation of the power of attorney or procurator.' The revocation, however, once the res is no longer integra, is valid only when made for just cause, which must, moreover, be approved by the judge when there is question of judicial procurators.^ 3. If the principal wishes to conduct the cause himself.' For the other modes, see Schmalzgrueber, 1. c, n. 42-48. 765. Q. What special remarks apply to procurators of communities, or ecclesiastical corporations, such as monas- teries, convents of nuns, colleges of students, and confrater- nities ? A. Individuals, as we have seen, may as a rule plead their causes personall}^ — i.e., act personally as plaintiffs or defend- ants in ecclesiastical courts. But moral bodies, or commu- nities, are obliged to do so by proxy, and consequently must appoint procurators, who are called syndici, to prosecute and defend their rights in ecclesiastical courts. Otherwise, as is evident, these bodies could not prosecute their rights at all. For it is practically impossible for an entire body — i.e., for all the members of such body — to act collectively or simul- taneously in such matters. A community or corporate body can appoint not merely one, but several procurators for itself. Where several are appointed, each one is considered as appointed in solidum, even though this is not expressed in the mandate, contrary to what happens in the case of proc- ' Cap. 2, De Proc, in 6° (i. 19). * L. Post litem 17 ff., De Procurat. (iii. 3); De Angelis, 1. c, p. 366. ' Cap. 8, t. c, in 6°. Various Per softs who usttally take part in Trials. 5 1 urators of individuals.' These procurators or syndici are cliosen by election — i.e., they are elected by the community or corporation they are chosen to represent. All the mem- bers of such community or corporation, who have the right to vote, must be called to the election. However, it is suf- ficient that two thirds of all the voters are present.'' A ma- jority vote elects. In some religious orders, however, the procurator is simply appointed by the superior, not elected. The right to appoint the procurators of convents of nuns belongs, de jure ordinario, to the bishop. We say, de jure ordinario ; for sometimes, either by the act of foundation, or custom, or the Rule as properly approved, it belongs to the nuns themselves, or even to laics." Art. IV. Advocates (Advocat't). 766. When contending parties are unable to settle a dis- puted matter in an amicable manner, and are consequently about to bring the case into court (in our case, ecclesiastical court) for adjudication, the first step to be taken by them is the selection of an able advocate (as they rarely plead their cause themselves) ; so much so, that when a party, owing to poverty, or the power, position, or authority of the opposing party, or other cause, is unable to procure an advocate, the ecclesiastical judge (for we speak of ecclesiastical courts) is bound to obtain or appoint one for him, as is enacted by Pope Honorius III.* 767. Now, an advocate {advocaius, patro?ius causae, orator, causidicus; in secular courts, lawyer, counsellor-at-law) is one who conducts the case in court for a client present, and ' Schmalzg., 1. i., t. 39, n. 5; cf. supra, n. 758 (4). ^ L. 3 ff. , Quod cujusc. univ. nom. (iii. 4). 3 Craiss., n. 5641. ^ Cap. i, De Off. Jud. (i. 32); Reiff., 1. i., t. 37, n. i. 52 Various Persons who tisually take part hi Trials. • assists him by his counsel, authority, and otherwise.' To act as advocate {postulare), therefore, means to discuss the merits of the case — i.e., to explain in court, or before the judge or judicial body composing the court, the arguments, whether of law or fact, militating in favor of one's client.* The office of an advocate is called by canonists inimus publicmn et honorificum. Consequently, only able and es- teemed persons are allowed to exercise it.' The difference between advocates and procurators has already been suffi- ciently explained by us, in the preceding article on procura- tors. 768. Q. Who can be or act as advocate in ecclesiastical courts ? A. All those who are not expressly prohibited by canon law. The reason is, that the edictum de postiilando {i.e., of act- ing as advocate) \$, prohibitorium, no less than that de prociira- tore constituendo.^ Now, what persons are expressly excluded by the law of the Church ? Chiefly these: i. Persons who are notably infamous. They can, indeed, act as advocates for themselves, but not for others.* Persons who are infamous indeed, but not notably so, can be advocates, not only for them- selves, but also for their relatives, minors and wards, but not for anybody else." 2. Excommunicates ; ^ for, as we shall see when we come to speak of censures, they are cut off from asso- ciation with the faithful, even in forensic or judicial matters. 3. Monks or regulars, except in favor of their monastery, and, even then, only with the consent of the superior.* The Franciscans or Friars Minor, however, are an exception even to the latter privilege ; for they cannot act as advocates for their monastery, even with the consent of their superior.' ' Schmalzg., 1. i., t. 37, n. 2; De Angelis, 1. i., t. 37, n. r. « Reiff., 1. c, n. 4. » lb., n. 6. * lb., n. 8. » Leg. I ff., De Postulando (iii. i). « lb. ' Cap 8., De Sent. Excom., in 6° (v. 11). 8 Cap. 2, De Postul. (i. 37). ■ » Clem. Exivi i, De V. S., ^ Proinde (v. 11). Various Persons who tisually take part in Trials. 53 As to whether secular ecclesiastics can be advocates, we shall see below. It is not necessary here to say that nuns or sisters cannot be advocates. For women, and a fortiori nuns, are, generally speaking, disqualified for this office.' 4. A judge cannot be advocate in the same cause in which he is to act as judge.'' 5. Those who are not sufficiently versed in the law.' In order to exclude persons who are ignorant of the law or otherwise unfit, the secular courts at the present day allow only those to act as advocates who have passed the prescribed examination and received the requisite diploma. In ecclesiastical courts, however, no such exami- nation or diploma is required by the general law of the Church." 769. We say, by the general law of the CJuircJi ; for by par- ticular or local law such examination or diploma, or at least a simple approbation, may be necessary. Thus, in fact, so far as concerns the United States, the S. C. de P. F., in its answer to the questions {dubid) addressed to it by bishops of this country, concerning the meaning of the Instruction of July 20, 1878, expressly declares that the advocate should be approved by the bishop. It is scarcely necessary to observe, in passing, that this approbation cannot be refused arbi- trarily. For the S. C. de P. F., in the above answer AdDubia, gives the accused rector (and by implication all other defend- ants or plaintiffs, as the case may be) the full right to choose his own advocate, subject only to the approval of the bishop. The words of the Sacred Congregation are : " Liberum cuique Rectori est aliuin Sacerdotem ab Episcopo tamen appro- bandum secum habere coram Consilio, sive ad simplicem adsis- tentiam, sive ad suas animadversiones aut defensionem exhi- bendam."^ Hence the right of the bishop to approve cannot be used in such a manner as to destroy the right of the rector • ' L. I ff., cit. 2 L 6, C. de Postul. (ii. 6). ^ l. 2 ff., tit. cit. * Bouix, De Jud., vol. i., p. 237; De Angelis, 1. c, n. 2. 5 S. C. de P. F., Ad Dubia, § iv. 54 Various Persons who usually take part m Trials, or defendant to choose an advocate. In other words, the approbation can be refused only for solid reasons — namely, {a) when the advocate is ignorant of the law of the Church ; {b) or has a bad reputation ; (c) or in the cases already men- tioned under n. 768. The best mode of settling disputes that may not unfrequently .arise on this head would seem to be to adopt the plan at present in vogue in most of the ecclesi- astical courts of Europe — that is, to have a fixed method by which able ecclesiastics will be permanently approved as advocates, so that, when occasion offers, a rector will be able to select an advocate from this number without being obHgcd to ask for the bishop's approbation. 770. Q. Can secular ecclesiastics act as advocates in ecclesiastical courts ? A. We premise : i. We say, in our question, secular eccle- siastics ; for we have already seen that monks, and conse- quently regular ecclesiastics, cannot be advocates.* 2. We say, secondly, in ecclesiastical courts, thus leaving out the question whether they can do so also in secular courts — which is of no particular consequence in this country, where ecclesiastics never aspire to such positions. 3. Again, a distinction must be made between secular ecclesiastics who are priests, and those who are only in inferior orders — namely, deacons,, subdeacons, and those in minor orders. 771. Having premised this, we now answer: All canon- ists agree that secular ecclesiastics, even though in sacred orders, provided they be not yet priests, can freely act as advocates and procurators in ecclesiastical courts. The only question is: Can priests also do so? There are two opinions: the common opinion, followed, among others, by Schmalzgrueber,^ Reiffenstuel,' and Bouix,* is, that they can- not, except in four cases, namely, {a) in their own causes — i.e., for themselves ; {b) for their church ; {c) or persons re- ' Supra, n. 768 (3). 2 L. :., t. 37, n. 10. ^ L. i., t. 37, n. 18. ■* De Jud., vol. i., p. 203, sq. Various Persons who usually take part in Trials. 55 lated to them, to the fourth degree of consanguinity ; {d) or for personae miserabiles, such as the poor, orphans, widows/ This opinion is founded chiefly on the cap. 3, De Postul., which says : " Cum sacerdotis sit ofificium nuUi nocere, omnibus autem velle prodesse, nonnisi' pro seipso . . . sibi licitum est postulare." One of the reasons assigned by the advo- cates of this opinion is the one intimated in the above caput — namely, that a priest, by acting as advocate even in eccle- siastical courts, would be instrumental in inflicting pain and penalties upon others — i.e., upon those of the opposing party, which is not in harmony with his priestly office. 772. The affirmative is, however, held by such eminent canonists as Benedict XIV. ,^ De Angelis,' and others. Thus Pope Benedict XIV. expressly says : " Saccular! autem clerico minorum ordinum, etiam Beneficiato, item sub- diacono" (et diacono), " immo sacerdoti, Jus ipsum canonicum permittit ut se advocatos in tribunalibus quidem ecclesias- ticis libere exhibeant." In fact, the above cap. 3, which those who hold the negative on this question quote in their favor, and which prima facie seems certainly in their favor, can be construed to mean that priests are forbidden to act as advocates in secular, but not in ecclesiastical courts. Be- sides, as Bouix ' himself well remarks, it is far more proper, and becoming the priestly dignity that a priest cited before the bishop's tribunal should be defended by an advocate who is a priest, rather than by an inferior ecclesiastic, or even a layman, whom he would nevertheless have to em- ploy as his advocate in case he were forbidden to select his advocate from among his fellow-priests. Moreover, as De Angelis ' says, nobody can be better adapted than ecclesi- astics or priests to act as advocates in ecclesiastical tribunals, particularly by reason of the nature of the questions there ' Cap. I. 3, De Post. (i. 37). 2 De Syn., 1. 13, c. 10, n. 12. ^ L. i., t. 37, n. 2. ^ L. c, p. 204. 5 L_ (.., p. 343. 56 Various Persons who tisiLally take part in Trials. tried and decided — namely, of ecclesiastical law, in which ecclesiastics are supposed to be well versed. Hence, in accordance with this opinion, we conclude with De Angelis that ecclesiastics, even though they be priests, can freely and in all causes act as advocates in ecclesiastical courts. This is the general law of the Church. It is therefore in full accord with this law that the S. C. de P. F., in its answer above quoted Ad Diibia, declares that in the United States the accused rector can select a priest as his advocate before the Commission of Investigation. 773. Here the question may be asked : Can and should an advocate be allowed to assist a defendant (or, as the case may be, a plaintiff) before a Commission of Investigation in the United States, not only when there is question of the dis- missal of a rector, but also in other cases — v.g., where there is question merely of suspending or otherwise punishing an ecclesiastic, even though he be not a rector? The reason of the question is, that the above declaration of the Propa- ganda speaks only of rectors, not of other priests or eccle- siastics. 774. We are of opinion that all ecclesiastics whatever, whether they be rectors or not,. who are defendants (the same holds of plaintiffs) before a Commission of Investiga- tion, in criminal or disciplinary, or even purely civil, causes or matters, have a right to be assisted by an advocate. For, as we have seen,' the cdictum de postulando is proJiihitoritim. Hence, by the general law of the Church, an advocate is to be admitted before ecclesiastical tribunals in all causes zvhat- evcr, where it is not expressly prohibited by law. Now, by the law of the Church, the admission of an advocate, at least for the defendant, is not only never refused, but is positively required. Thus De AngeHs' expressly writes : "Advertimus non esse confundendam positionem procuratoris cum defeti- ' Supra, n. 768. » L. i., t. 38, n. 5, in fine. Various Persons who usually lake part in Trials. 57 sionc advocati, qjtae nunquam ncgatiir, immo positive exigitiir!' This holds true in such a manner that where a htigant can- not procure an advocate, the judge, as we have seen,' is bound to provide one for him ; ^ so much so, that the litigant or defendant cannot be condemned for contempt or in con- tumaciam so long as he has not been able to find a suitable advocate. Time must be given him until he has found an advocate, or, if he cannot do so, until the court has appointed one for him.' Moreover, as it is allowed in ecclesiastical courts to have several procurators, as we have shown, so also, it seems, is it permitted to have several advocates for the same cause, especially for the defence, which should never be impaired. 775. Hence, by the general law of the Church, every defendant before a Commission of Investigation in the United States, no matter whether he be a rector or not, whether the cause be criminal or not, has a right to an advocate. But is this right, guaranteed though it is by the general law, restricted by the S. C. de P. F., in its declarations to the Dnbia of American bishops ? We think not. It is true that the Propaganda, in the above declarations, mentions only rectors as having the right to select an advocate. But it is also true that this same Sacred Congregation, in its Instruc- tion of July 20, 1878, distinctly intimates that the proceed- ings as prescribed in the case of rectors shall serve as a model for the other cases.* Besides, the assistance of an advocate is one of the best means of defence. Now, by the above Instruction the defendant is to have the full right {facta ipsi plena facilitate) of defending himself. So far, then, from excluding advocates in the cases under discussion, the Sacred Congregation plainly admits them. yy6. Duties of Advocates. — While, as we have seen, the ' Supra, n. 766. ^ l. i, § 4, Ait Praetor ff., De Postul. (iii. i). ^ Cap. I, Ut lite non cont. (i. 6); Schmalzg., 1. i., t. 37, n. 17. * Instr. S. C. de P. F., 20 Julii, 1878, § Commissionis ita; § In causis cogn. 58 Various Persons who tisually take part in Trials. advocate's is an honorable and public office, it has also grave obligations annexed. These duties have reference either to the cause undertaken or the honorary. I. Duties of advocates with regard to the majiagenient of the cause. — i. An advocate must have the proper knowledge. And he is guilty, speaking in general, of a grievous sin if he under takes a case without sufficient learning. 2. He cannot engage in a case which he knows to be unjust or bad.' If he nevertheless does so knowingly or through culpable ignorance, he is bound to compensate both his client (unless he informs him of the injustice of his cause) and the opposing party for any damage or loss they may have sustained. This rule, however, admits of an exception in favor of defendants in crimmal causes. For it is always law- ful to defend an accused person, also in ecclesiastical courts, even when the advocate knows him to be guilty. The reason is, that the accused is never obliged to suffer punish- ment unless he is juridically convicted. Hence he can either personally or through an advocate try to evade punishment till properly convicted.^ 3. It is not, however, required that he should be certain of the justice of the cause ; otherwise he could never engage in any cause, since nearly all causes brought before judicial tribunals proceed from doubtful facts or matters. It is, therefore, sufficient that the cause should have good or probable reasons in its favor. 'jj'j. 4. Once he has undertaken a case he should defend or conduct it faithfully. Hence {a) he should diligently study both the facts and the law in the case, so as to be fully prepared when he appears before the judge.' And if, through his want of skill or diligence, he loses the case, he is bound in conscience to compensate his client.* ib) He should not reveal the secrets or proofs of his client to the opposing party. Hence he cannot be advocate for both parties in the ' L. 14, C. § Patroni (iii. 3). « Craiss., n. 5648. * L. 14, § I, Patroni, C. de Judiciis (iii. i). ^ Schmalzg., 1. 1., t. 37, n. 17. VciJ'ioiis Persojis who iLsiially take part in Trials, 59 same cause, ic) He should cite no false law nor wrongly interpret a true law ; nor should he make use of any false arguments or documents to sustain his case ; nor should he produce false or corrupt witnesses. Otherwise he is guilty of the crimen falsi.'' He can, however, employ arguments and the like resting on mere probability, {d) In court he should not indulge in personalities. His arguments should be based upon laws and facts, rather than upon invectives against or abuse of the opposing party.'' {c) Finally, he should con- duct the cause to the end, or to the final sentence, and not give it up against the will of his client.' Lastly, an advocate (we speak of ecclesiastical advocates) who is approved by pubHc authority as advocate, cannot, without just cause, refuse to undertake the case of one who cannot get an advocate, if the judge requires him to do so. 778, II. Proper honorary. — It is certain that ecclesiastical advocates, .no less than secular, can demand a fee for their services, and that even though no agreement to that effect has been made beforehand. For, as the cap. 16, De Praescr., says: "Nemo suis stipendiis cogatur militare." ^ Hence, before undertaking a case, he can make a contract with his client as to the honorary to be given him. Where a fixed honorary is established by law or custom, the advocate should not go beyond it. Where no such fee is fixed by law or custom, he can demand what is regarded by good men a fair compensation, considering the amount of his labor, his position, his ability, and the difficulty of the case. ' 779. Can the advocate make an agreement with his client, obliging the latter to pay him, over and above the ordinary fee, also a special honorary (called Pahnar'min by canonists) if he wins the case ? He can do so after the case ' L. 14, C. cit. ^ L. 6, § I, Cod. de Postul. (ii. 6). ^ L. 13, I g, Cod. de Judic. ■* Schmalzg., 1. c, n. 12; De Angelis, 1. c, n. 3, p. 348. * L. I; § 10 ff., De extr. cogn. (50. 13). 6o Vaj'iozis Persons who usually take part in Trials, is finished, provided always that this palmarium or special fee be moderate.' But he cannot do so, according to Schmalzgrueber,'' before the case is finished. Finally, he can- not enter into a contract with his client, binding the latter to give him, as his fee, a share or part {quota litis) of what will be adjudicated to him in case of his gaining the cause.^ Note, what has been said thus far of ecclesiastical advocates affects, of course, also ecclesiastical advocates before Com- missions of Investigation in the United States. Art. V. Of Auditors, Assessors, Fiscal Promoters and Advocates, Secre- taries or Clerks, and Messengers of Ecclesiastical Courts. 780. Of these officials of ecclesiastical courts we shall speak later on, under the head of episcopal curias. ' lb., § 12. ^ L. c, n. 13. * De Angelis, 1. c, p. 349. CHAPTER IV. OF THE COMPETENT ECCLESIASTICAL TRIBUNAL {De Foro Competcfite Ecclesiasticd). 781. In ecclesiastical no less than in secular courts, when judicial proceedings are about to be commenced against any person, it is of paramount importance to find out which is the foricin conipctens, or what particular tribunal has compe- tence in the case. In other words, it is necessary to ascer- tain the tribunal to which the accused or defendant belongs.. For the general rule is that the plaintiff (in criminal causes,, the accuser or prosecution) must follow the forum to which, the defendant is subject.' Hence, even where the plaintiff belongs to a different forum from that of the defendant, he has to institute proceedings before the latter's forum. Con- sequently, it is sufficient for a judge, in order to be compe- tent to try a cause, to have jurisdiction over the defendant, and it is not necessary for him to have jurisdiction also over the plaintiff. All this follows from the maxim : Actor sequitur forum rei, which applies both in civil and criminal causes."^ By the competent ecclesiastical forum, we therefore mean the tribunal of the ecclesiastical judge to whose jurisdiction the defendant in a cause is subject. Hence, that ecclesias- tical judge is the competent judge {Judex competens), to whose jurisdiction the defendant is subject, or before whom the case can be tried. ^ 782. It will be seen that the question now under con- sideration is not, whether an ecclesiastical court or judge has, ' Cap. 5, 8, De for. comp. (ii. 2); L. Juris 2, C. de jurisd. om. jud.(iii. 13). ^ L. in criminali 5, Cod. (iii. 13). ^ De Camillis, vol. iii., p, 15. 62 Of the Competent Ecclesiastical Tribunal. speaking in general, power or competence to try causes. For every ecclesiastical judge, by the very fact of his being a judge, has such power, in general. The question therefore is : ^Has such judge the power to try or hear this or that particular cause, or is he competent in this or that case ? The question, therefore, who is the competent ecclesiastical judge in a cause, is the same as this one : Before what eccle- siastical judge or tribunal is the case to be heard and decided ? 783. Various ways in zuhich an ecclesiastical court becomes competent — i.e., has power to try a cause. — In how many ways does an ecclesiastical court or judge become competent to adjudicate a cause? In other words, in how many wa3's can a person belong to the forum of an ecclesiastical judge, and be, therefore, triable by him? i. Ordinarily, va these four ways — namely, by reason {a) of domicile of the parties ; {ii) of contract ; {c) the crime committed ; id') the location of the thing or object in dispute. These ways are thus enumerated by Pope Gregory IX.: "Ratione dehcti, sen contractus, aut domicilii, sive rei de qua contra possessorem causa movetur, forum regulariter quis sortitur." * 2. Extraordina- rily, in the following ways : {ci) by delegation ; {p) proroga- tion ; ic) compromise or arbitration ; {d) counter action ; {e) connection of causes. There are consequently, altogether, eleven ways or modes in which an ecclesiasticai judge be- comes competent in a cause, and in which, therefore, a per- son is justiciable by him. We shall now briefly explain each mode. 784. I. Competence by reason of domicile. — It is certain that a person falls under the competence or forum of, and is therefore triable by, the ecclesiastical judge or court of the place where he has his domicile, and that in all causes, civil or criminal." Nay, \):i\^ forum domicilii has concurrent juris- ' Cap. Licet 20, De For. Comp. (ii. 2). ' Cap. .20, cit. ; L. Gives 7, C. De Incolis (x. 39); Schmalzg., 1. ii., tit. 2, n. 15, Of the Competent Ecclesiastical T^^ibuiial. 63 Giction or competence with all the other ecclesiastical courts, so that, even where a person is justiciable out of his own domicile, — namely, as we shall see, in the place where he has committed a crime, or made a contract, or the object in dis- pute is situate, — he can nevertheless be tried also by the court of his domicile, provided one of the other courts has not yet taken up the case.' This court of domicile can pro- ceed to try a person even when he is out of the place of his domicile. For it can summon him to appear ; and if he contumaciously refuses to appear, proceed against him, as being in contempt.'^ Nor can it be objected that such cita- tion is executed or served on the defendant out of the terri- tory iv.g., diocese of bishop) of the judge issuing it. For this serving of the citation, whether by messenger or regis- tered letter, is purely a ministerial act, and not an act of jurisdiction.^ This court or forum, therefore, is justly called the natural, ordinary, and chief forum of defendants. It has full and general competence, and can try persons, as we have seen, even for crimes committed out of their domicile. 785. What has been said applies to domicile proper {donti- ciliiun stride dictum). Does it also hold true of quasi-domi- cile?* We must distinguish here between crimes or acts which are committed in one's quasi-domicile, and those which are perpetrated out of it. Now, it is certain that a person may be tried and sentenced by the judge of his quasi-domi- cile for crimes committed or contracts made in such quasi- domicile. Whether this holds also in the case of crimes com- mitted or acts done out of such quasi-domicile, is controverted. In common with Reiffenstuel,* Schmalzgrueber,' and others, we hold the affirmative.'' ' Reiff., I. ii., t. 2, n. 28. « Cap. 3. 8, De Dol. etCont. (ii. 14). 2 Ex cap. Romana i, De For. Comp. in 6° (ii. 2); Reiff., 1. c, n. 30. * For the definition of and difference between domicile and quasi-domicile, see supra, n. 650. ^ L. c, n. 39. * L. c, n. 17. ' Ex 1. Sciens 2, C. Ubi de crim. agi op. (iii. 15). 64 Of tJic Competent Ecclesiastical Tribimal. 786. We observe here, that as Rome is the home or fatherland of all Catholics, ecclesiastics (and even laics, in ecclesiastical causes) can, when in Rome, be tried there, in the first instance, even though they have not acquired a domicile or quasi-domicile there, nor committed the offence or act there.' This holds true, even at present, notwith- standing that the Council of Trent ' ordains that all eccle- siastical causes shall in the first instance be tried and de- cided only by the ordinaries of places. Because the Roman tribunals are "ordinaries of places" for all Catholics, and, therefore, not excluded by the above Tridentine enactment.' Hence, a defendant cannot object to being tried in the Roman Curia, in the first instance. He may, however, if he has come to Rome for some just and necessary cause, ask to be allowed to return home, and plead before his ordinary.* 787. II. Compete ftce by reasott of contract. — The next mode of falling under the competence of an ecclesiastical judge is by reason of contract {ratione contractus^. For, if a person makes a contract in a place, he becomes, as a rule, triable, so far as concerns the contract, in such place, even though he has no domicile or quasi-domicile there. ^ Observe that the word contract, or agreement, is here used in its widest sense, and, consequently, means not only contracts, or agree- ments proper, but also quasi-contracts, and every other action from which springs an obligation.* We say, as a rule ; for there are a few exceptions. Thus, the contracting parties are not triable by the judge of the place where the contract was made, if they agreed that, in case of difficulties arising out of the contract, the trial should take place else- where — v.g., before the judge of the domicile. As a rule, therefore, the judge of the place where the contract was ' Cap. 20, De For. Comp. ' Sess. 24, c. 20, De Ref. 2 Craiss., n. 5689. ■» Schmalzg., 1. c, n. 27. * Cap. Licet 20, cit. ; cap. Romana, cit., § 3; L. 19, § 2, Proinde fl., De Jud. (V. i.). * L. Omnem 20 ff., De Judic. (v. i); Reiff., 1. c, n. 81. Of the Competent Ecclesiastical Tribunal. 65 made, or the obligation contracted, has full power to try an ecclesiastic, even though a stranger, who has entered into a contract there, provided the latter has not yet left the place or territory of the judge of contract, or provided (in case he has already left) that he was cited to appear in court before he left.' We say, provided the latter, etc. ; for if he has left before being cited, the judge of contract cannot proceed in any other way against him, than by putting his opponent in possession of his goods or possessions, if he has any, in the place of contract ; but he cannot inflict any other punishment upon him.' 788. What has been said of the competence of the eccle- siastical judge ratione contractus, applies also to matrimonial causes, — namely, when a question arises as to whether the marriage was celebrated according to the law of the Church, or before the propriiis parocJius, or with the necessary wit- nesses, or the proclamations.' 789. III. Competence by reason of the location of the object. — It is certain that a person falls under the competence of an ecclesiastical judge, or forum, by reason of the location of the object which is the subject of the dispute {forum compe- tens ratione rei sitae) ; so that a person may be tried by the judge of the territory where the object in question is situ- ate,^ even though he is otherwise in no way under his juris- diction.'* This is true, {a) not only with regard to immovable property or real estate, but also movable property, or per- sonal estate, provided the latter {i.e., the personal estate) remains permanently, or at least for some time, in the place, and is not there merely in transitu ; {b) even when the party is not in the territory or place. For, in the latter case, — i.e., where the party has left the territory, — the judge can cite him to appear, as though he were still in the place, and, if he ' Cap. Romana, cit., § 3. 2 ^^p j-j^ . Rgiff., 1. c, n. 95. * Prael. in Sem. S. Sulp., torn. 3, n. 658. * Cap. 3. 20, De For. Comp. (ii. 2). * Reiff., 1. c, n. 98; Schmalzg., 1. c, n. 49. 66 Of the Competent Ecclesiastical Trihtnal. contumaciously refuses to appear, he can also put the com- plainant in possession of the object in controversy. Note, however, that only a real, not a personal, action can be brought against the defendant in the case.' In other words, the defendant comes under the competence of the ecclesias- tical court by reason of the res sita, only so far as concerns his goods, not his person, as we have already intimated." The judge, therefore, of the place where the object is located cannot pass a sentence or issue any mandate which would directly aflfect the person of the defendant (z^^., he cannot excommunicate or suspend him), but only decree that the thing or property in dispute be given the complainant.^ 790. Observe that by the res sita are also meant ecclesi- astical benefices. Hence, where, v.g., an ecclesiastic has two benefices, one in his own diocese, the other out of it, he is triable, so far as the latter benefice is concerned, by the bishop of the diocese where it is situate." 791. Competence by reason of crime — ^^ Forum compete fis ratione criminisT — The law of the Church is that a person falls under the competence of, and is therefore justiciable by, the ecclesiastical court or judge of the territory or place where he has committed the crime, even though he be other- wise in no sense subject to him.' In fact, it is eminently proper that crimes should be punished where they have been committed, partly to deter others from doing the same, and partly also because the proofs of guilt can be more easily obtained there." 792. Q. How can the ecclesiastical judge of the territory where the crime was committed proceed against the person perpetrating the crime ? ' L. Actor 3, C. Ubi in rem. actio (iii. 19). * Supra, n. 787. ^ Ex cap. Romana, cit. ; Schmalzg., 1. c, 51, 53. * Cf. Prael. S. Sulp., 1. c, n. 658; Devoti, 1. 3, t. 4, § 16. * Cap. 14. 20, De For. Comp. (ii. 2); L. quaestiones i, et 1. Sciens 2, § qua in C. Ubi de crim. (iii. 15). ^ Schmalzg., 1. c, n. 59. Of the Compete7it Ecclesiastical Tribunal. 67 A. We distinguish : The delinquent is at the time either actually in the place or territory where he committed the crime, or he has left it, and that either before or after he was cited to appear before \}i\Q, judex delicti. In the first case, — i.e., where the delinquent is still in such territory, — the eccle- siastical judge — v.g., bishop of the diocese — of this territory has full power to try and punish him, so much so that he can even pass sentence of dismissal from benefice or ecclesiastical office where the nature of the crime warrants it, and that even though the benefice is situate in another place/ We S2iy, pass sentence of dismissal; for the execution of this sen- tence of privation belongs to the judge or bishop of the diocese where such benefice or office is.* 793. In the second case, — that is, where the delinquent has indeed left the place, but was, prior to leaving, cited by the judge of such place or territory, — it is certain that the latter can proceed against him even in his absence ; so that if the defendant refuses contumaciously to obey the citation and appear for trial, the judge or bishop can proceed against him as in contempt — that is, he can, besides punishing him for contempt, proceed with the trial even in the defendant's absence, and if he find him guilty, inflict punishment — v.g., suspension, excommunication — upon him. Nay, he may even decree dismissal from benefice or office,' though, as we have just seen,* where such office or benefice is out of his district, he must remit the execution of such decree to the bishop of the diocese where the benefice is located. 794. In the third case, — namely, where he had left before he was cited, — no personal action {actio personalis) can be brought against him before the judge of the territory or district where he committed the deed. For, as Pope Boni- face VIII. says; Extra territoriuin jus dicenti non pareatur ' Cap. Postulasti 14 (ii. 2); Reiff., 1. c, n. 48; Schmalzg., 1. c, n. 61. ' Schmalzg., 1. c, n. 60 (3). ^ Cap. Proposuisti 19, De For. Comp. (ii. 2). •* Supra, n. 792. 68 Of the Competent Ecclesiastical Tribunal. impuneJ' We S3.y, no personal actiojt ; that is, the judge can- not, as we have seen in the case oi Judex rei sitae^ inflict any punishment directly affecting his person, such as suspension. But an actio realis lies against him before such judge — i.e., this judge can issue decrees depriving the absent defendant of his goods or possessions located in the said judge's dis- trict/ The reason is that the defendant who has left the place before having been cited remains subject indeed to the judge of that place so far as his goods located there are con- cerned, but not so far as his person is concerned. Moreover, the defendant in the case may, upon the requisition or request of the judex delicti, be compelled by the bishop or ordinary of his domicile or place where he actually lives at the time, and that even by censures, to appear before the ordinarius delicti for trial. And if he appears, the judex delicti can proceed both against his person and his goods.* But if he does not appear, he can, even in this case, be pro- ceeded against, though only so far as his goods are concerned. 795. We observe that where the crime was begun in one territory or diocese and consummated m another, it is the more probable opinion that the delinquent may be tried and punished by the judge or bishop of either place ; in such manner, however, that the ordinary who has first taken up the case has the exclusive right to continue and finish it. This right is called the jus praeventiojiis — i.e., the right of anticipation." 796. General remarks regarding the above four modes of having competence, — From what has been said, it follows that the only competent judge, in the first instance, of ecclesi- astics, even though only in minor orders or tonsure, in all ecclesiastical causes, civil or criminal, is their bishop or ordinary. By the latter is meant, as we have seen, and in ' Cap. 2, de Const., in 6° (ii. i). ' Supra, n. 789. * Schmalzg., 1. c, n. 61. * Ex Clem. Pastoralis 2 (ii. 11); Reiff., 1. c, n. 61; Prael. S. Sulp., 1. c, n. 657. ' Reiff., I. c, n. 75. Of the Competent Ecclesiastical Tribunal. 69 the manner explained, the bishop or ordinary of th'e place [a) where an ecclesiastic has his domicile or quasi-domicile ; {b) or where the contract or obligation was entered into ; {c) or the crime committed ; (^) or the object in controversy is situate ; {e) finally, the Roman Curia. Again we observe, that of all these courts or judges the bishop or ordinary ol the domicile has the fullest power, and is, in fact, the ordi- nary forum of ecclesiastics. The Roman Curia, as we have seen, is considered \\i^ judex domicilii for all Catholics of the whole world. 797. Besides these four ways in which a person may fall under the competence of an ecclesiastical judge, there are, as we have seen, several others of minor importance. The first is by delegation, which we have already sufficiently explained.* 798. The second is by prorogation {prorogationc jurisdic- tiotiis) or by the consent of the parties. This prorogation is defined the extension of the jurisdiction or competence of a judge beyond its limits, — v.g., to persons or causes which otherwise do not fall under his jurisdiction, — made by the consent of the parties voluntarily submitting themselves to him.' It IS certain that in ecclesiastical courts parties may in many cases agree upon a judge otherwise incompetent in their particular case.' It is true that, according to the Council of Trent, the ordinary, as judge in the first instance, has the right to call before his tribunal all ecclesiastical causes of his diocese, whether the contending parties be seculars or ecclesiastics. But from this it does not follow that he must necessarily do so." Hence, not only the laity,' but also the clergy,' may even at present, in ecclesiastical causes, agree upon an ecclesiastical judge, to whom they are ' Supra, n. 226 sq. ^ Ex 1. i et 2 ff. de Judic. (v. i); Reiff., 1. c, n. 122. ^ lb.; Craiss., n. 5660. * Schmalzg., 1, c. n. 145. * Cap. Nullus 3, de par. et al. par. (iii. 29). * Cap. Significasti 18, de for. comp. (ii. 2). 70 Of the Competent Ecclesiastical Tribu7ial. otherwise not subject, provided it be with the consent of their own ordinary. 799. In order that the prorogation may be vahd, certain conditions are required. They are chiefly: i. The judge whose jurisdiction is to be extended to the case must have some jurisdiction. For it is evident that where there is no jurisdiction it cannot be extended. 2. This jurisdiction which is to be extended to a case must be of the same kind with that which is requisite in the case. Thus, if the cause is criminal, the judge whose jurisdiction is to be extended must have criminal, not merely civil, jurisdiction. Other- wise, there would be not merely prorogation, or extension of competence, but a conferring of new jurisdiction, which private persons cannot do.' 3. The parties must freely and knowingly consent to the judge.' 4. The judge, whose jurisdiction is to be extended, must have not merely dele- gated, but ordinary jurisdiction, or at least delegated juris- diction ad universitatem causarum, which is placed on a like footing with ordinary jurisdiction.' 800. Hence we think that in the United States eccle- siastics in one diocese could, with the consent of their bishop, submit their cause for trial and adjudication to the bishop and Commission of Investigation of another diocese. For it seems that Commissions of Investigation are delegati ad universitatem causarum, in regard to the hearing of causes. 801. The third extraordinary way of falling under the competence of, and being triable by, an ecclesiastical court, otherwise destitute of competence in the case, is by com- promise or arbitration {competentia per compromissuni). Speak- ing in general, there are two kinds of arbitrators — arbitra- tors in the strict sense, and arbitrators in a broad sense.* B}' an arbitrator in the broad sense of the term, we mean ' Schmalzg., 1. c, n. 144. • L. 2 ff. de Judic. ' Cap. 40, de Off. jud. del. (i. 29). * Schmalzg., 1. i., t. 43, n. I. Of the Competent Ecclesiastical TiHbuital. Ji any worthy person selected to settle some matter or ques- tion. Arbitrators proper {arbitri), or in the strict sense of the term, of whom we here speak, are those worthy and competent persons who are chosen either by direction of ecclesiastical law, or by the agreement of the parties, to take cognizance of, and pronounce sentence upon, the matter in dispute, in such manner that the parties are bound to abide by their decision.* The chief differences between arbitrators proper and arbitrators in a broad sense are two: i. The former should observe in their proceedings the formalities prescribed for judicial proceedings ; for they act as judges. The latter settle the matter ex aequo et bono, and even with- out the observance of the formalities required in judicial proceedings. 2. The sentence of arbitrators proper, even though unjust,'^ must, as a rule, be accepted as final, and obej'ed, save where they were chosen by direction of the law ; whilst that of arbitrators, in the wide sense, may sim- ply have that force or weight which the opinion of a worthy person would possess.' 802. Arbitrators proper, as is evident from the definition, are of two kinds — necessary and voluntary. Necessary arbitrators {arbitri juris, arbitri necessarii) are those who are chosen, indeed, either by the judge or the parties, though necessarily — i.e., in cases where the law of the Church not only allows, but positively commands it. Now, in what cases does the law of the Church prescribe that arbitrators be chosen to settle the dispute or cause ? Chiefly in the fol- lowing: I. Where an ecclesiastical judge is challenged or objected to as suspected. In this case the law of the Church is, that the judge cannot himself take cognizance of this challenge, but that arbitrators must be selected to do so.* 2. Where an ecclesiastic has a dispute or controversy with > Reiff., 1. i., t. 43, n. 5; De Angelis, 1. i., t. 43, n. i. '^ L. Diem 27 ff. de recep. qui arb. rec. (iv. 8). ^ De Angelis, 1. c. * Cap. 39, de Off. jud. del. (i. 29); cap. 11, de Off. jud. del., in 6 (i. 14). 72 Of the Competent Ecclesiastical Ti'ibunal. his own bishop. The law of the Church directs that such dispute be settled by arbitrators chosen by both parties.' 803. Voluntary arbitrators {arbitri voluntarii, arbitri com- projuissarii) are those who are chosen not of necessity, — that is, not because the law so directs, — but by the free consent of the contending parties. Necessary arbitrators differ from voluntary chiefly {a) in that the former have jurisdiction, and also a certain coercive power." Hence they can, like judges proper, cite the parties, compel the witnesses to ap- pear, etc. The latter have merely what is called notio or vicra cognitio causae^ but no jurisdictional or coercive power, and, consequently, can indeed hear the cause and pronounce sen- tence, but cannot compel the parties or witnesses to appear. The reason of the difference is, that necessary arbitrators are appointed by the law or the superior. Now, either of the latter can and is presumed to give jurisdiction to the arbi- trators. Voluntary arbitrators, on the other hand, are selected solely by the will of the parties, who neither have nor consequently, can give jurisdiction.* {h) From the sen- tence or award of necessary arbitrators, as we have seen, it is always allowed to appeal ; from that of voluntary, it is not permitted, as a rule, to appeal, ic) Again, a person can be compelled to act as necessary arbitrator,' but not as voluntary. 804. An arbitrator, in the proper sense, especially if he is a necessary arbitrator, does not differ greatly from a judge proper,* but is, in fact, in most respects considered a judge, in the true sense of the word. We say, does not differ greatly ; for there are some differences. Thus, a judge can execute his sentence, while an arbitrator cannot, but must leave the execution of his sentence to the ordinary judge having com- petence in the matter.^ ' Can. Si Clericus 46, C. 11, q. i; De Angelis, 1. c, n. 2. * Ex cap. 39, de Off. del. ' L. 5 ff., de Re jud. (42. i). * Schmalzg., 1. c, n. 3. ' Cap. 61, de Appell. * L. i flf. de Recep. qui, etc. (iv. 8). ' L. Cum antea 5, C. de Recep. arb. (ii. 56). Of the Competent Ecclesiastical Tribunal. 73 805. Q. Who can be appointed arbitrators ? A. Generally speaking, all persons whatever, unless they are expressly excluded by law. Nor does it matter whether they are private individuals or public officials.' Now, by the law of the Church, the following are chiefly excluded : i. Reg- ulars, except where there is question of the good of their monastery, and even then they can act only with the consent of their superior. The reason is the same as that on account of which they are forbidden to act as procurators or judges. 2. Laymen, in ecclesiastical causes, unless they are specially authorized by the Holy See, or chosen with the permission of the superior conjointly with an ecclesiastic' Whether a layman can be chosen as an arbitrator in the broad sense, is controverted. Schmalzgrueber ' holds the affirmative; De Angelis' the negative. 3. Finally, a person who is excom- municated as vitandiis^ It is allowed to choose one or more persons to arbitrate in the same cause. If several are se- lected, it is more advisable to make the number uneven,* so that in case of disagreement there can be a majority. It is, however, not forbidden to make the number even.' The majority decides,' unless it was specially agreed among the contending parties that the verdict of the arbitrators must be unanimous." 806. Q. What causes or matters can be submitted to arbitrators freely chosen by the parties ? A. We premise: We do not here speak of causes which must, as we have seen,'" be submitted to arbitration, but only of those which may be submitted. We now answer : All causes whatever which are not expressly excepted by law. By " law" we here mean the law of the Church, or the civil law of the Romans as adopted by the Church. Now by this ' Schmalzg., 1. c, n. ii. » Cap. 8, g (i. 43). ^ L. c, n. 13. * L. c, n. 4. 5 Cap ^^^ jg Sent. exc. (v. 39). * Cap. I, de For. comp. (i. 43); Schmalzg., 1. c, n. 11. ' Cap. 12, I. c. ^ Cap. I, in 6° (i. 32). » De Angelis, 1. c, n. 8. >» Supra, n. 802. 74 Of the Competent Ecclesiastical Tribtmal. law the following- causes are excepted: i. Criminal causes, when criminally tried or prosecuted ; * 2. Matrimonial causes," when there is question of the validity of the mar- riage;' 3. Causes or questions relating to appointments to ecclesiastical offices or benefices, except, however, when the ecclesiastical superior consents or the ordinary himself is chosen arbitrator ; * 4. Causes which have been decided by a sentence that has passed into res judicata ;^ 5. Causes that redound to the prejudice of the Holy See ; ° 6. Major causes, and those specially reserved to the Holy See/ 807. Powers and Duties of Arbitrators. — i. The power of those arbitrators who are chosen freely {arbitri conipro- missarii), and not necessarily, is neither greater nor less than what is given them by the parties in the compromise or agreement, or by the judge. For, says the Roman law, id venit in comproniissiint, de quo actum est ut veniret.^ Thus, before a voluntary arbitrator, no counter-action {reconvention can be instituted,' unless the contrary be expressed in the agreement." Nor can such counter-action be brought even before a necessary arbitrator when the latter is chosen to settle, not the whole case, but merely a particular issue or question — v.g., whether the judge is suspected. But if the necessary arbitrator be chosen to decide the whole cause, — which happens, v.g., in controversies or disputes between a bishop and one of his ecclesiastics, — a counter-action lies before him." 808. 2. The arbitrators, even though voluntary, and even though this is not expressly stated in the compromise or agreement, can, like delegated judges, take cognizance of questions or causes which are, so to say, intrinsically or ' Cap. Causa 9, de In int. rest. (i. 41). * lb. ^ Schmalzg., 1. c, n. 16 (2). ■* Ex cap. 10 (i. 43). * Cap. 11, 1. c. * Cap. 5, 1. c. ' Ex cap. Causa, cit. ^ L. 21, § Plenum ff. de Rec. qui, etc. (iv. 8); De Angelis, 1. c, n. 6; Schmalzg., 1. c, n. 26. ' Cap. 6(i. 43). 1" Schmalzg., 1. c, n. 17. " Can. 46, G. 11, qu. i; De Angelis, I. c, n. 6. Of the Competent Ecclesiastical Tribunal. 75 necessarily connected with or incidental to the principal cause in such manner that they cannot well decide the latter without at the same time pronouncing upon the former.' Thus they can decide exceptions, both dilatory and peremp- tory ; what comes within the agreement or arbitration/ etc. 809. 3. Where nothing else is said in the agreement, the mode of procedure to be observed by the arbitrators is nearly the same as that observed in trials or judicial pro- ceedings. For arbitrations resemble judicial processes. Thus the Roman law, adopted by the Church, says : " Com- promissum ad similitudinem judiciorum redigatur." ' We say, where notJiing else is said in the agreement ; for the parties choosing the arbitrator (we speak of voluntary arbi- trators) can, and usually do, by mutual agreement establish the form of procedure or trial to be followed.* 810. Effects of the Decision or Award of tJie Arbitrators. — Are the parties always obliged to abide by the decision or award {lauduni) of arbitrators? We must distinguish be- tween arbitrators proper and arbitrators in a wide sense. The decision of the latter, if unjust, need not be complied with by the aggrieved party, but may, when proved to be unjust, be corrected or modified according to the estimate of a good and competent person." As to arbitrators proper, we again distinguish between voluntary and necessary arbi- trators. Against the decision or award of the latter it is, as we have seen, always allowed to appeal." But against the award of voluntary arbitrators, whether it be just or unjust, it is not, as a rule, permitted to appeal' The reason is, that a person who of his own free-will submits his case to arbi- trators, has only to blame himself if he is thereby injured. 811. We said, as a rule ; for there are several exceptions. Thus the decision of voluntary arbitrators need not be ' Ex cap. 5, 21, de Off. del. * De Angelis, 1. c. ' L. I ff. (iv. 8); cap. 6 (i. 43). * Schmalzg., 1. c, n. 26. * Supra, n. 801. 'Supra, n. 803, ' lb.; L. 27 ff. de Rec. qui rec. (iv. 8). 76 Of the Competent Ecclesiastical Tribunal. obeyed by the ag-grieved party {a) if the arbitrator violated any of the conditions of the arbitration agreement.' For, as we have seen, voluntary arbitrators have no power beyond that agreed upon by the parties choosing them, {b) Where the decision is contrary to the sacred canons, {c) If the arbi- trator was deceived or bribed by the opposing party, {d) When the injustice of the decision is notorious, {e) When the injury inflicted by the decision is of an extraordinarily grave character. Because in this as in the preceding case, fraud or deceit is presumed." We have said, of an extraordi- narily grave character ; for whether it is lawful to refuse to abide by the decision, if the injury is grave indeed, but not extraordinarily so, is controverted. Schmalzgrueber,* with most canonists, holds that once the sentence of the arbitra- tors is accepted or acquiesced in by the parties {quando arbitrintn ho7nologatum est a partibus), either expressly or tacitly, — v.g., by not appealing within ten days, — it can no longer be modified, on the plea of grave injury. 812. Finally, an ecclesiastical judge or court obtains com- petence by what is called contincntia causae, or the connection or bearing which one cause has with or upon another.^ Thus, a judge can take cognizance of, and decide all questions or matters which in the course of the trial come up inciden- tally to, or in connection with, the main cause or question at issue, in such manner that the one cannot be well decided without the other. This holds of delegated as well as ordi- nary judges,' and it is needless to add, also of Commissions of Investigation in the United States, so far as the trial, exclu- sive of final sentence in such causes, is concerned. The rule is based on the general principle, that when a person is em- powered to proceed in a cause or causes, he is, by that very fact, implicitly authorized to do whatever is necessary or expedient to the discharge of his duty. ' Cap. 6 (i. 43). * De Angelis, 1. c, n. 10. ^ l. c, n. 36. * L. 10, C. de Jud. (iii. i). ^ Reiff., 1. 2, t. 2, n. 145. CHAPTER V. OF JUDICIAL PROOFS. Art. I. Judicial Proofs, in General. 813. When the defendant, upon being duly summoned, appears in the ecclesiastical court (in the U. S., before the Commission of Investigation), and denies the charges or allegations made against him, it becomes necessary to prove them ; otherwise they fall to the ground, according to the maxim : ''Actore non probante, reus absolvitur." We shall therefore speak of judicial proofs, and that, first, in general; next, in particular. 814. A proof {probatio) in general is the demonstration or establishment of a disputed or controverted matter by law- ful means or arguments. Proofs are of two kinds : judicial, or extrajudicial. A judicial proof [probatio Jiidicialis) is de- fined a judicial act, by which the judge is convinced of the certainty of a disputed thing or fact, and that either through documents, or witnesses, or proper arguments.' A judicial proof, therefore, is that which is made iri court, or before the judge ; an extrajudicial, is that which is made out of court, or not before a judge sitting in or holding court.^ A judicial proof is either full or perfect {probatio plena) — namely, when it fully and clearly establishes or demonstrates, in court, an alleged fact or statement, and thus enables the judge to pro- nounce sentence, without further investigation ; or it is in- * Schmalzg., 1. ii., t. 19, n. i. * Reiff., I. ii., t. 19, n. 9. 78 Of Judicial Proofs, complete or imperfect [probatio semiplena) — namely, when it establishes as probable, though not as certain, the fact or affair on trial before the judge.' In other words, a full proof is one that makes the judge or court certain of the fact or matter in dispute ; an incomplete one is that which leaves him in doubt. 815. How many kinds of full proof are there? Chiefly these : i. The testimony or deposition of two witnesses, who are above all suspicion or objection, on one and the same point. 2. A public instrument, or other authentic writing, having the force of a public instrument. 3. The presumption which is called juris ct dc jure. 4. The oath taken by one of the litigants, upon the demand of the opposing party. 5. Con- fession of the accused. 6. Evidence or notoriety of the fact." The chief effect of a full proof is that sentence has to be pronounced in accordance with it.' In other words, the judge is bound to pass judgment secundum allegata et probata.^ Hence he should either condemn the defendant, if the plain- tiff has fully proved the charges or allegations, or absolve him if the allegations are not fully sustained. 816. What are the chief kinds of incomplete proofs? i. The deposition {a) of one witness {b) or of several singular witnesses {testes singidares) — i.e., of several witnesses, each of whom testifies to a diffei-ent point, ic) or even of two wit- nesses who testify on the same point, but who are not above all suspicion. 2. A private writing or instrument. 3. Com- parison of handwriting, where there is a doubt as to the writing. 4. Probable presumptions. 5. Fame or current report. 6. The supplementary oath.^ 817. Can two imperfect proofs {probationes semiplenae) constitute a full proof? i. It is certain that they cannot {a) in criminal causes;' because in such causes the proofs ' Schmalzg., 1. c, n. 10; Devoti, 1. 3, t. 9, § 3- * Schmalzg., 1. c, n. la 3 Reiff., 1. c, n. 190. * Can. Judicet 4, C. 3, q. 7. 5 Schmalzg., 1. c, n. 14. * Supra, n. 726. Of Judicial Proofs, 79 must be, as canonists say, clearer than the noonday sun — Itice meridiana clariores."^ {b) In matrimonial causes, when there is question of the validity of a marriage already con- tracted, {c) In civil causes of a grave character." 2. With these exceptions, two imperfect proofs can make a full proof if they are joined together and tend to the same end, even though they be of a different kind — such as, one witness together with the oath ; presumptions in conjunction with common fame.' 818. From what has been said, it follows that judicial proofs must, as a rule, be full and conclusive {probatio plena). This is inferred by canonists from these words of the Justinian code : " Judices oportet imprimis rei qualitatem plena inqiiisitione disciitere" *' Nay, such full and complete proof is required Qwenjicre divino, as appears from these words of our Lord : " In ore duorum vel trium stat omne verbum." '" We say, as a rule ; for there are some exceptions. Thus ici) the testimony of but one witness is full proof, when his deposition is beneficial to another person and does not hurt anybody." Thus the testimony of one witness is sufficient to establish the fact that a person has been baptized or that a church is consecrated.' {p) Again, an imperfect proof is suffi- cient in summary causes which are of but little moment and not prejudicial to any one. By summary causes we mean causes that are tried summarily, or where a person is em- powered to proceed siimmarie ac de piano. We have just said, which are of but little moment, etc. ; for in summary causes which are of graver importance and may seriously prejudice others, the proofs must be full and conclusive. Thus Pope Clement V. says : " Non sic tamen Judex litem abbreviet" (in processu summario) "quin probationes neces- ' L. 25, C. de Probat. (iv. 19); Bouix, de Jud., vol. i., p. 305. ' Supra, n. 726. ^ Schmalzg., 1. c, n. 16, 17. * L. 9, C. de Jud. (iii. i). * Matth. xviii. 16; Reiff., 1. c, n. 57. « Can. no, de Consecr. dist. 4. ' Glossa in cap. 51, de Test. v. nisi juratus. 8o Of Judicial Proofs. sariae . . . admittantur." * We conclude, therefore, with ReifFenstueP that full proof {probatio plena) is required also in summary and extrajudicial proceedings when there is question of inflicting an irreparable damage. These princi- ciples, it would seem to us, apply also to proceedings before Commissions of Investigation in the United States. Finally, {c) imperfect proofs are sufficient when a cause is committed to a judge in such a manner that he may proceed sola facti veritatc inspecta^ 819. Upon whom rests the onus probandi, or burden of proof, in judicial proceedings before ecclesiastical courts? Generally speaking, upon the plaintiff;* so much so, that where the latter has not sufficiently proved his allegations, the defendant must be acquitted, even though he has said nothing whatever in his defence." This holds both in civil and criminal causes, and also when the judge proceeds ex officio by way of inquiry — that is, without any accuser or denouncer. For in this case the judge or bishop, or his prosecuting official (in the United States, the bishop's offi- cial appointed according to n. 2 of the Instruction of the S. C. de P. F., of July 20, 1878, to draw up and present the statement /rt* causa), is bound to prove the charges or allega- tions.' We have S2i\di, generally speaking ; for sometimes the burden of proof rests with the defendant — namely, among other cases, {a) when the presumption of the law is in favor of the plaintiff; {b) when the defendant makes an exception^ — vg., when he objects that the judge is not competent. For in this case he becomes the plamtiff, so far as the excep- tion is concerned." J Clem. Saepe 2, De V. S. (v. 11.) « L. c, n. 65. 3 lb., n. 68. ■» Ex L. 2 ff. de Prob. (xxii. 3); L. i, C. de Prob. (iv. 19). * Cap. 36, de Jurejur. (ii. 24). * Bouix, 1. c, p. 306. ' L. 9, 19 ff. de Probat. » Devoti, 1. 3, t. 9, § 2. Of Jitdicial Proofs. 8i Art. II. Of Judicial Proofs in Particular, I. Of Confession {De Confcssione). 820. Canonists, following the order of the Decretals, usually treat of confession before they enter upon the dis- cussion of the other proofs. The reason is that where a defendant, in a proper manner, acknowledges the truth or justice of what is alleged against him, no further proof is needed, and the plaintiff or prosecuting party is relieved of all necessity of submitting further proofs. 821. Confession {cojtfessio), as here understood, is the acknowledgment by a person, in or out of court, of the truth and justice of what is charged or asserted by the opposing party.' As will be seen from this definition, con- fession is divided into judicial and extrajudicial. Judicial confession (confessio Judicialis) is that which is made in court {in Jure, in Judicio) — i.e., before the competent judge and during the trial or judicial proceedings. Extrajudicial {confessio extrajudicialis) is that which takes place out of court." Whether and when the accused, if interrogated by the judge as to his guilt, is bound to answer, we shall dis- cuss later.' 822. What is the chief effect of a judicial confession? Judicial confession is justly termed the queen of proofs, being the most perfect of all proofs. Hence it ends the trial, and relieves the plaintiff or prosecuting party of the necessity of giving further proofs. For there can be no better proof than that which proceeds from one's own ' Schmalzg., 1. ii., t. 18, n. i. ^ Reiff., lib. ii., t. 18, n. 4. ^ Cf. Schmalzg., 1. c, n. 3. 82 Of Judicial Proofs. mouth.' However, in order that it may have this effect, it should be possessed chiefly of these quaUties : i. It should be made by a person who is twenty-five years old ;" 2. with entire Hberty, not from fear; 3. from certain knowledge — that is, not from error or want of deliberation ; ' 4, in court {injure) — that is, before the competent judge while holding court. We say, first, before the judge ; hence a confession made before an arbitrator, in the broad sense, is not judicial. But that which is made before arbitrators in the proper sense, whether they be voluntary or necessary, is a judicial confession. The reason is that arbitrators proper take cog- nizance of matters like judges proper. We say, secondly, ivhile holding court ; for the confession is not considered as made in court {injure) simply because it is made before the judge, but only when it is made before him while holding court." 5. During" the trial {in judicio). 6. With clearness and definiteness." 823. What are the chief effects of extrajudicial confession ? Before answering directly, we observe that we speak of extrajudicial confession, as properly proved. In other words, it must first be lawfully shown — v.g., by two witnesses who were present when the confession was made," or by writing — that the confession really took place. Otherwise, if a per- son denies that he has ever made the confession imputed to him, it will have no weight whatever, until the opponent proves that it has really been made.' We now answer directly. In civil causes an extrajudicial confession consti- tutes full proof, if it is made in the presence of the adversary, and is at the same time specific — i.e., expresses the origin or ' Cap. 2, de Capell. mon. (iii. 37); cap. 10 (Hi. 2); cap. 24 (v. 11); Schmalzg. 1. c, n. 20. 2 L. 6 ff., de Conf. (42. 2). ^ Can. i, c. 15, q. 6. •* L. un. C. de Confessis; L. 11 ff. de Just, et jur. (i. i); Reiff., 1. c, n. 7. * Schmalzg., 1. c, n. io-i6; Devoti, 1. 3, t. 9, § 4. * Cap. 23, de Testibus. ' Reiff., 1. c, n. 36. Of Judicial Proofs. 83 cause of the obligation ; v.g., if it is worded thus : I owe Titius $100, by reason of a loan he gave me/ In criminal causes, such confession constitutes, indeed, a grave presump- tion, but not full and sufficient proof.'' Hence the accused in the case cannot be convicted or condemned on such con- fession." Art. III. 2. Of Witnesses {De Testibus). 824. When the truth or facts in a case cannot be elicited by the confession of the defendant, recourse must be had to other proofs. Of these, the testimony of witnesses is the most important, as well as the one most frequently employed. Speaking in general, witnesses {testes) are persons made use of to show the truth of a thing which is being disputed. There are three kinds of witnesses : judicial, instrumental, and testamentary, according as they testify in judicial pro- ceedmgs, or attest an instrument, or a will.* Judicial wit- nesses, of whom alone we here speak, are persons worthy of belief, lawfully called or summoned to testify in court, or before the judge holding court, on the facts or questions in dispute." 825, Q. Who can be witnesses in ecclesiastical courts — i.e., so far as concerns the United States, chiefly before Com- missions of Investigation ? A. The rule is that all persons can act as witnesses who are not expressly excluded by law.' By " law" we here mean the natural as well as positive — i.e., the canon law, and civil or Roman law, as adopted by the Church. Who, then, ' Cap. 14, de Fide instr. (ii. 22); Reiff., 1. c, n. 37. ^ Ex cap. 25, de Rescript, (i. 3). 3 Schmalzg., 1. c, n. 28. ■* Schmalzg., 1. 2, t. 20, n. i. * Soglia, 1. 4, § 39, vol. ii., p. 293 (ed. Vecchiotti). * Cap. I, de Test. (ii. 20); Glossa, ib. v. idonei. 84 Of yudicial Proofs. are excluded by the law of nature ? All those who are de- prived of the use of reason, such as madmen, lunatics, imbe- ciles, infants, etc' Who are disqualified by positive law — i.e., the law of the Church ? Some are disqualified abso- lutely, others only in part — namely, so far as concerns cer- tain persons or causes. We proceed to treat both classes. 826. What persons are absolutely {i.e., in all causes, civil and criminal) disqualified by the law of the Church ? Chiefly three classes: 1. Those who labor under a defect of age — namely, persons under the age of fourteen {inipuberes)^ 2. Those who have certain bodily defects. Thus, as a rule, those who are blind, deaf, or dumb, are disqualified." 3. Those who are defective, so far as their character or morals are concerned — namely, {a) those who have been bribed, (/;) or hired to give testimon)^'' {c) Those who arc infamous {infaines), whether by law or by fact.^ The exceptions are given by Schmalzgrueber." {d) Those who are under judi- cial investigation for crime. For they cannot, so long as their cause is pending and their innocence not shown," act as witnesses in criminal causes. {/) Those against whom a grave offence is objected and proven by the opposing party, even though they had not before been prosecuted for or judicially convicted of such offence.* (/) Perjurers." {g) Persons under major excommunication.'" A distinction, how- ever, is to be made between excommunicates who are to be shunned {vita?tdi), and those who are not to be avoided {tolerati). The latter can be admitted as witnesses by the judge, provided the opposing party does not object. But the former must be rejected, even though no objection is made against them by the opponent. " (//) Finally, persons ' Schmalzg., 1. c, n. 3. "^ Can. Testes i, c. 4, q. 3; L. 19 ff. de Testibus. ■^ Schmalzg., 1. c, n. 7. ■* L- 3 ff- de Test. * Cap. 47, de Test. * L. c., n. 17. ' Cap. 56, de Test. * Cap. 54. de Test.; Miinchen, 1. c, vol. i., p. 132. ' Cap. 54, cit. '" Cap. 38, de Test.; cap. 8, de Sent, exc, in 6°. " Schmalzg., 1. c, n. 26. Of Judicial Proofs. 85 who are very poor, and of low station in life, by reason of their being presumed to be liable to being easily bribed,' Where, however, they bear a good reputation, this suspicion or presumption does not hold. 827. What persons are disqualified by ecclesiastical law, as witnesses, only in part — i.e., only in regard to certain causes or persons ? We observe that of those persons who are disqualified only in part, some are forbidden to testify in favor of, others against certain persons ; others in certain causes. Who, then, are forbidden to testify in favor of cer- tain persons ? i. Parents in favor of their children, and vice versa ; " because their mutual love renders their testimony suspected. There are, however, exceptions to this rule, which may be seen in Schmalzgrueber.'' 2. Brothers and all other relatives, whether by consanguinity or affinity, to the fourth degree exclusive ; * members of the same house- hold, such as domestics, cannot, as a rule, testify in favor of each other; because, as the can. 12, c. 3, q. 5, says : " Pro- pinquitatis vel famiharitatis ac dominationis affectio verita- tem impedire solet." " Where, however, these persons are of a specially good character, so that it may be safely as- sumed that they will tell the truth, without regard to their feelings, or where they are the best, or even only persons, who can testify on a certain matter, — v.g., as to the age, re- lationship, or legitimate birth, — their testimony is admissible. Other exceptions may be seen in Schmalzgrueber.' 3. Ad- vocates and procurators, in matters concerning their clients or principals. 828. Who a/e chiefly prohibited from giving testimony against certain persons? i. Accomplices or associates in crime cannot testify against each other,^ except ia) where the crime necessarily supposes accomplices — v.g., fornication ; ' Can. Si testes 3, c. 4, q- 3; L- 3 ff- de Testibus, ^ L. 9 ff. de Test. ^ L. c, n. 30. * Schmalzg., 1. c, n. 31. ^ Ci. cap. 24, de Test. ^ L. c, n. 30, 32, 36. ' Cap. lo, de Test. 86 Of Judicial Proofs. {b) in what are called crimhia exccpta, such as simony. How- ever, even where the testimony of an accomplice is received, it is to be regarded as that of a low, infamous, and suspected person.' 2. Nor can an enemy testify against his enemy ; * nor Jews, pagans, and heretics against Catholics ; ^ chiefly because of their supposed hatred against the latter." 4. Nor laics against ecclesiastics, in criminal causes, and that partly because of the supposed antipathy, or even hostility, of the former to the latter, but especially because of the respect due the ecclesiastical state." This is the rule, which, however, has its exceptions. Thus a lay person can testify against an ecclesiastic where there is question {a) of the crimes called crimina excepta, — namely, heresy, simony, and high trea- son ; ib) and of other scandalous and notorious crimes — v.g., theft ; ic) where there are no ecclesiastics who have a knowl- edge of the facts — v.g., where an ecclesiastic has committed a crime in a solitary place ; id') where the judicial proceed- ings against an ecclesiastic are conducted per niodum inquisi- tionis^ which is the mode now chiefly in vogue in the entire Church, and also prescribed for the United States by the Instruction of the S. C. de P. F. dated July 20, 1878. 5. Finally, persons who are united by some special tie, whether of relationship, or duty, or business, cannot testify against each other.' Thus, parents cannot testify against their chil- dren ; nor near relatives against each other ; nor advocates against their clients ; nor intimate friends against their friends.* The reason is, chiefly, that the Church wishes those bounds which so greatly influence human intercourse, and pro- mote the welfare of society, to be respected and kept sacred." ' Schmalzg., 1. c, n. 41. ^ Cap. 13 et 19, de Accus. (v. i); L. 17, C. de Test. (iv. 20). ' Can. 24 et 26, c. 2, q. 7. * MUnchen, Can. Trials, vol. i., p. 131. * Cap. 3, in 6° (iii. 23); cap. 33 (ii. 20). * Schmalzg., 1. c, n. 50. '' Can. 3, c. 4, q. 3; L* 6, C. de Test. * MUnchen, I. c, p. 141. ' lb.; Schmalzg., 1. c, n. 51. Of yudicial Proofs. 87 829. Who are prohibited from being witnesses in certain causes, and what are these causes? i. Minors under the age of twenty cannot testify in criminal causes/ while, as we said above, those under the age of fourteen cannot testify in any cause. 2. Ecclesiastics and religious cannot be witnesses against laics or even other ecclesiastics in secular courts, in causa sanguinis? We say, first, in secular courts ; for they can testify against seculars, and also, a fortiori, against other ecclesiastics, in ecclesiastical courts, and that even in crim- inal causes. We say, secondly, in causa sanguinis^ — that is, in causes or trials where there is question of inflicting the penalty of death or of bodily mutilation." For in civil causes, or even in criminal, which are either civilly tried or not punishable by death or bodily mutilation, ecclesiastics may be witnesses before the secular courts, provided it be with the leave of their bishop.^ They may, moreover, be witnesses in these courts, even in causa satiguijiis, for the defence — that is, for the purpose of showing the innocence of the accused. Finally, they can testify in such courts even without the bishop's consent, in matters relating to testaments, instruments, and contracts of laics.' 830. 3. Women cannot, as a rule, be witnesses in ecclesias- tical courts in criminal causes.' The reason is, that a woman is, by her very nature, inconstant and changeable. Hence, as Pope Gregory I. says, " Varium et mutabile testimonium semper foemina producit."^ We say, ^^ a rule; for some- times women, as well as other objectionable witnesses, can testify in criminal causes — namely, {a) in regard to what are called crimina excepta ;^ {b) where the testimony of men can- not be had ; {c) where the judge proceeds ex officio by way of 1 L. 20 ff. de Test. * Ex can. g, c. ii, q. i; Glossa., ib. v recipiat. 3 Miinchen, 1. c, p. 133. •* Reiff., 1. c, n. 170. * Can. 2, c. 14, q. 2. * Schmalzg., 1. c, n. 55. ' Can. 17, c. 33, q. 5. * Cap. Forus 10, de V. S. (v. 40): Glossa, ib. v. non foemina, et v. varium. * Supra, n. 828. 88 Of Judicial Proofs. inquiry, or per modum inquisitionis ; {d) for the purpose of showing the innocence of the accused ; {c) where the crime is being tried civilly.' Observe, even when women are admitted, their testimony is always to be regarded as that of witnesses not above all suspicion." We say, secondly, in criminal causes ; for in civil causes their testimony is admitted.' 831. Nobody can be witness in his own cause* — namely, in a cause in which he is interested in such manner that if he testifies he will be benefited, and if he does not, he will suffer, whether in his honor, feelings, property, etc.* Hence the following persons are chiefly excluded: i. Those who have a cause similar to that in which they are to testify ; * 2. A judge in a cause which he adjudicates or has adjudi- cated ; ' 3. Procurators or advocates in causes which they represent or defend.* Whether and when bishops and other ecclesiastics can be witnesses in causes relating to the churches of which they have charge, see Reiffenstuel.' 832. We observe here that the witnesses whom we have enumerated as disqualified in part — i.e., in regard to certain persons or causes — may indeed be allowed to testify even out of the cases already incidentally mentioned — v.g., if the opposing party does not object, or if the facts can thereby be more fully elicited. But their testimony is always to be regarded as that of testes minus idonei, or witnesses not above all suspicion ; and consequently the testimony of two such witnesses does not constitute full proof, but only a presumption." 833. How many witnesses are required in order to prove a thing ? Two witnesses are, as a rule, requisite and suffi- cient, provided they are above all suspicion or objection, 1 Schmalzg., 1. c, n. 56. » lb., n. 52. » Cap. 3 et 22 et 33, de Test. * L. 10 ff. de Testibus; L. 10. C. eod. * Schmalzg., 1. c, n. 62. * Cap. 20, de Test. ' Can. i et 2, c. 4, q. 4 ; cap. Foius, cit. ; cap. 40, de Test. 8 Cap. 4, de Test. 9 l c, n. 197. '" Schmalzg., 1. c, n. 52; MUnchen, 1. c, p. 136. Of Judicial Proofs. 89 and are contestes — i.e., agree in their testimony.' We say, first, "are, as a rule,, sufficient /' for there are cases where the Church prescribes a greater number. Thus, in matrimo- nial causes, where there is question of dissolving a marriage because of the impediment of impotency, the latter must be proved by the oath of both the husband and wife, and of seven relations or neighbors.'' We say, secondly, '■ are, as a rule, required /' for, generally speaking, one witness, even though he be above all suspicion, and clothed with the highest dignities, does not constitute full proof.* The reason is that a single individual may easily be deceived or led into error or corrupted. This rule holds good not only by virtue of ecclesiastical, but even of divine law, according to the words of our Lord : " That in the mouth of two or three wit- nesses every word may stand." ^ Hence no statute, custom, or law, even of the Pope, can establish the contrary.* So far as criminal causes are concerned, this rule has no exceptions whatever, even at the present day. Hence in such causes the testimony of at least two competent witnesses is always required for conviction.* As to the sense in which one wit- ness is sufficient in causes of solicitation, see below {a). 834. In civil causes (we speak, of course, of civil causes pertaining to the ecclesiastical forum), however, two wit- nesses are not always necessary. Thus one witness is suffi- cient, I, in favorable matters or causes which do not redound to any one's prejudice or injury — v.g., where it is doubted whether a church is consecrated, or a dying person has asked for the confessor, or whether a person is baptized, or has the legitimate age for the reception of holy orders. 2. In matrimonial causes, when there is question of hinder- ' Can. Si testes 3, c. 4, q. 3; cap. 4 et 23, de Test. ; L. 12 ff. De Test. ; L. 9, Cod. de Test. * Cap. 5 et 7, de Frig, et malef. (iv. 15). 2 L. 12 ff. cit. ; L. 9, Cod. cit. ; cap. lo, 23, 28, de Test. ■* Matt, xviii. 16, cf. Deut. xvii. 6; ib. xix. 6; Reiff., 1. c, n. 249. ^ Schmalzg., 1. c, n. 69. « Bouix, de Jud., t. i., p. 311. 90 Of Judicial Proofs. ing a marriage from being contracted on account of an annulling impediment.' 3. Where an official or public min- ister testifies to an act performed by himself — v.g., a notary concerning an instrument made by him ; a bishop in regard to his official acts ; a rector or parish priest respecting bap- tisms or other official acts performed by him." 4. The testi- mony of one expert is sufficient, if more than one cannot be easily consulted/ 835. We said, \}!\\r^y , provided they are above all suspicion or objection;" hence the witnesses m.ust be such that no objec- tion whatever can be made against them, whether in regard to their person or their deposition. The objections that may be urged against their persons have been already explained by us above.^ Those which may be advanced against their depositions or testimony are chiefly: i. That they did not give a sufficient cause for the facts testified to by them ; 2, That they did not agree in their testimony ; 3. That they testified, not from their own personal knowl- edge, but merely from hearsay : all of which we shall explain further on.^ We said, fourthly, a7id are contest es — i.e., agree, etc.; this phrase we shall explain below. 836. Q. How are the depositions of witnesses to be re- ceived, or how are witnesses to be examined ? A. I. The plaintiff or prosecution (the bishop's official with us, when there is question of disciplinary and criminal causes of ecclesiastics '), or the defendant who wishes to produce the witnesses, gives the latter's names to the judge (in the United States, in criminal and disciplinary causes of ecclesiastics, to the Commission of Investigation). The latter then summons them to appear and give their testi- • Cap. 22, de Test. ' Ex cap. 19, de Appell. (ii. 28); ib., Glossa, v. suus nuntius. 3 Schmalzg., 1. c, n. 70. * Supra, n. 833. * Supra, n. 825 sq. * Cf. Schmalzg., 1. c, n. 71; infra, n. ' Instr. S. C. de Prop. Fid., 20 Julii, 1878, § 2, et § 10 Quod si. Of yudicial Proofs. 91 mony, allowing them a reasonable time to refresh their memory and prepare for their testimony. Here it may be asked whether a witness is worthy of belief {^fide dignus) when he comes into court (in the United States the Com- mission of Investigation, in the causes given) and testifies, without having been cited by the judge to do so? We dis- tinguish. Such a witness has either been asked to give testimony by the plaintiff or defendant, or he has presented himself without being thus asked, simply out of alleged love of justice or truth. In the first case, he cannot be rejected. In the second, his testimony is, as a rule, suspected, and by no means above all suspicion. The reason is chiefly, that such a one shows a singular leaning and affection toward the person in whose favor he wishes to testify, and is conse- quently objectionable.' We said above, then the judge sum- mons them. This must not be understood in the sense that the judge should always issue a formal summons, or, as it is called in our secular courts, a subpoena. The phrase means that the judge either allows the party to produce the wit- nesses, or issues a formal citation either where the witnesses are unwilling to come at the sole request of the parties, or where it is customary for the judge always to cite the witnesses.'' 837. 2. The rule is that before the witnesses are allowed to give their testimony the party against whom they are produced must be cited to be present, so as to be able to object against the admission of the witnesses if he wishes. Otherwise the testimony will be of no force whatever. Thus Pope Gregory IX, says : " Ecce admonendus est semper adversarius, ut ad audiendos testes veniat."' The reason is that, generally speaking, a person must always be called to be present in court, when anything which concerns ' Schmalzg., 1. c, n. 77; Reiff., 1. c, n. 415. * L. 3, § fin. ff. de Test. ; Reiff., I. c, n. 414. * Cap. In nomine Dni 2, de Test. ; L. 19, Cod. de Testibus. 92 Of Judicial Proofs. his interests is there transacted.' Again, if he were not allowed to be present he would be deprived of the right to object against the admission of the witnesses. Now no one should be despoiled of any lawful means of defence.'' 838. But it will be asked : In what sense has the party against whom the witnesses are produced the right to be present at their admission ? The decretal /;/ Nomine Domini, just cited, seems clearly to state that the party has the right to be present during the entire examination of the witnesses. Nevertheless canonists, following the Glossa,^ commonly hold that he can be present only when they take the oath prior to giving their testimony, and not at the examination itself. For they say with the Glossa, according to the cap. 52, De Test, and the 1. 14, C. de Test., the witnesses are to be examined in secret or apart from the parties.' 839. We say, canonists conimonly, etc. ; for there are very able canonists — v.g., Devoti,^ Craisson,* Todeschi' — who maintain that the opposite party has a right to be present also at the examination itself, and not merely at the taking of the oath. In fact, the decretal In Nomine Dni repeatedly says that the party must be cited to come and hear the wit- nesses — " venire et audirc testes." And, on the other hand, the decretals which require the witnesses to be examined singillatim or separately or in secret may very well be ex- plained to mean that they should be examined apart from each other, or not in each other's hearing, lest they might enter into collusion. Hence it does not follow that they must be examined in the absence of the opposing party. This confronting of the witnesses with the party against whom they testify is at present the rule in all secular courts in the United States and elsewhere, and is introduced into some ecclesiastical courts in Europe, — v.g., in France, — and ' L. 47 ff. de Re jud. ' Reiff., 1. c, n. 419. 2 In cap. 2, de Test., v. audire. * Reiff., 1. c, n. 421; Schmalzg., 1. c, n. 83. 5 L. 3, t. Q. § iS. « N. 5714. ■" Man. ii. 20, § 3. Of Judicial Proofs. 93 is also permitted in the ecclesiastical courts of the United States, — v.g., Commissions of Investigation, — provided the Commission judges it prudent and the witnesses are willing.' 840. 3. The witnesses must give their testimony under oath. In other words, they must, prior to deposing, swear that they will tell the truth, the whole truth, and nothing but the truth, and that they are not moved by hatred, friendship, favor, or their own interest, but solely by love of truth ; ^ and that they will not reveal their deposition to either party before its publication. This last promise is, of course, made only where the parties are excluded from the examination.^ This oath is so necessary, that witnesses who do not depose under oath, even though they be ecclesiastics, or regulars, or high dignitaries, are not to be believed to the prejudice of a third party. Thus Pope Honorius III. says: " Nullius testimonio, quantuncunque religiosus existat, nisi juratus deposuerit, in alterius praejudicium debet credi."* In fact, what could be better calculated to make witnesses tell the truth than the fear and reverence inspired by the sanctity of the oath. 841. This law requiring witnesses to take the oath holds so strictly, that it is obligatory {a) even in summary causes ; (I)) on all witnesses whatsoever, no matter of what station, dignity, or excellence of character ; {c) in such manner that no law or custom can generally allow of witnesses deposing without the oath. For such law or custom would be unrea- sonable, nay, opposed to the very law of nature, since it would open the door to many calumnies, falsehoods, and great corruption of the witnesses.^ We said generally ; for there are some exceptions. Thus, by custom or statute, cer- tain persons, of great probity of character or in high dignity, ■ Instr. S. C. de P. F., 20 Julii, 1878, § 12, Consentientibus. ' Cap, 5. 17, de Test.; Glossa, in c. 17, de Test., v. juramentis. 2 Schmalzg., 1. c, n. 87. * Cap. 51, de Test. ; L. 9 et 18, C. de Test. (iv. 21). ^ Reiff., 1. c, n. 478; Schmalzg., 1. c, n. 89. 94 Of Judicial Proofs. may be — in fact, are in many places — allowed to depose with- out the oath. The reason is, that in their case there can be no danger of fraud, subornation, or perjury. Again, the oath may be omitted if both the parties — i.e., the plaintiff and defendant — consent.' 842. The oath is to be administered in the presence of the judge or his deputy, who previously, with becoming dignity and uncovered head, admonishes the witnesses of the gravity of an oath, and the penalty of taking a false oath.^ As we have already seen, the opposing party (the same holds of the other party) has a right to be present while the oath is being administered to the witnesses, and to present its objections against the admissibility of the \vitness. 843. In the ecclesiastical courts of the United States, as established by the Instruction of the S. C. de P. F., of July 20, 1878, on the mode of procedure in criminal and disci- plinary causes of ecclesiastics, the witnesses are not obliged to take the oath, or depose under oath, as is evident from these words of said Instruction : " Non requiratur" (a testi- bus) " juramentum." ' The Holy See dispenses with the oath in this country, probably because it has been found that, €ven in Catholic countries, the witnesses are frequently un- willing to testify under oath, in ecclesiastical courts, espe- cially in criminal causes.* Nevertheless, the Propaganda, to show the great importance it attaches to the oath, ordains in the above Instruction, immediately after the words " non requiratur juramentum," that " si testes ipsi non renuant, et se paratos esse declarent ad ea quae detulerint, juramento, data occasione, confirmanda, fiat adnotatio hujusmodi dis- Positionis in actis." " In other words, the Sacred Congrega- tion, finding it impossible or imprudent to enforce the letter of the law in this matter, wishes its spirit to be carried out. ' Cap. 39, de Test.; ib., Glossa, v. remittantur. * Schmalzg., 1. c, n. 86. ^ instr. cit., § 11, Singuli. * Cf. Soglia, .vol. ii., p. 295, ed. Vecch. '' Instr. cit., § 11. Of Judicial Proofs. 95 Hence the Commission of Investigation, before examining a witness, should admonish him that it is his duty to testify with the same disposition and regard for truth as though he deposed under oath. 844. 4. After the witnesses have taken the oath, they are examined, or give their testimony. Here three questions present themselves : First, How are they to be examined ? second, On what matters? third. How should they depose? Let us briefly treat of each. First, How are witnesses to be examined ? They should, as a rule, be examined {a) by the judge himself.' In the ecclesiastical courts of the United States, as constituted by the Instruction of the Propaganda, dated July 20, 1878, the witnesses are examined by the presi- dent of the Commission of Investigation, or by the other com- missioners through the president." {p) In the place where the court holds its sittings {in jure, in loco j'udicii), though where the witnesses are ladies, or nuns, or persons of dis- tinction, or unable to come into court by reason of sickness or other hindrance, the judge or his deputy (in the ecclesias- tical courts of the United States, as established by the Pro- paganda in 1878, at least two members of the Commission') shall take the testimony at the house of the witnesses, .with all the formalities which would have to be observed if the deposition were taken in court — i.e., the contending parties would have to be summoned to be present, etc." 845. {c) The testimony should be taken down by the notary very carefully, and, as far as possible, word for word.* In difficult causes, in order to prevent any error in the record, many eminent canonists say it is advisable to allow, besides the notarj^^, two worthy and discreet persons* to be present and take minutes or notes of the examination." ' Ex L. 3 ff. de Test.; Nov. 60, cap. 2. - Instr. cit., § 11, Singuli. ' Instr. cit., § 15, Quod si testes. * Cap. 2, de Jud., in 6° (ii. i) ; Reiff., 1. c, n. 504. ^ Cap. 37 et 52, de Test.; Reiff., 1. c, n. 508. ^ Reiff., 1. c, n. 501. 96 Of Judicial Proofs, {d) When the witness has finished his testimony, it should be read for him, especially if he desires it, by the notar}^ so that he may see whether he has been rightly understood, and also that he may correct whatever he may have said erroneously or inconsiderately.* (r) Finally, he should be cautioned to keep silence regarding his deposition. 846. Secondly, On what matters should witnesses be ex- amined ? I. First, certain general questions {interrogatoria generalid) should be put to them — namely, what their age is, their occupation, whether they have any interest in the case, whether the}^ are enemies or friends of the party for whom they are about to testify, and the like. 2. Next they should be examined on the cause itself — that is, not only on the prin- cipal facts in the case, but also on all the particulars or cir- cumstances ; on the time, place, persons, etc. Thus Pope Innocent III. says : " Mandamus quatenus recipias testes quos utraque pars ... duxerit producendos, ac eos diligen- ter examinari procures ; et de singulis prudenter inquirens, de causis videlicet, personis, loco, tempore, visu, auditu, scientia, credulitate, fama, certitudine, cuncta plene con- scribas." " Hence they are to be interrogated, among other things, not only whether they know the facts in the case, but also how they came to know them — namely, whether they were eye or ear witnesses, etc. In other words, they should be asked to give reasons for their statements. 847. Here we observe, that the judge (we speak of the ecclesiastical judge) cannot, either in civil or criminal causes, ask any leading question {quaestio suggestivd) — that is, a ques- tion so framed as to indicate the answer desired — v.g.. Did you see Titius killing Caius on such a day and in such a place ? * Hence the examination of the witnesses must be by general questions, ascending gradually to the more particular matters or facts in the case. The same holds true of the ' Schtnalzg., 1. c, n. 96. ^ Cap. 37, de Test. ^ Reiflf., 1. c, n. 516-519. Of Judicial Proofs. 97 examination of an accused in criminal causes. Hence the judge — or, as the case may be, the Commission of Investiga- tion, with us — should not at once ask the accused, v.g.^ whether he killed Caius. But he should begin by first asking general questions — v.g., whether he knows Caius, or was present when he was killed ; whether he had any quar- rel with him, and thus gradually come to the crime itself.' 848. Thirdly, How should a witness give his testimony ? I. In person and orally, not merely in writing. The law of the Church expressly says : " Testes, per quamcunque scrip- turam testimonium non proferant, sed praesentes de his, quae noverunt et viderunt, veraciter testimonium dicant." * The reason is, that the judge, especially in criminal causes, is greatly aided in estimating the value of the testimony, by the countenance, behavior, etc., of the witness.^ 2. His tes- timony should be clear, definite, and certain, not vague or doubtful. Hence, if he speaks doubtfully, — v.g., if he says, " I believe, I thinly, unless I am mistaken, if I remember cor- rectly," etc., — his testimony should be rejected. 3. Finally, he should adhere to his testimony, not vary or change, now saying one thing, then another ; much less should he contra- dict himself.* 849. Q. What are testes singidares ? A. Witnesses are called {a) concordant {contestes) when they agree in their testimony; that is, when they testify con- cordantly to one and the same fact — v.g., that they saw Titius killing Caius in such a place and at such a time ; {p) singular {testes singidares), when they testify to two different acts or facts, so that each one is, so to say, alone in his testi- mony. This singularity or disagreement may regard {a) the material facts in the case — v.g., if one of the witnesses tes- tifies that Titius stole a cow, another that he stole a horse - ' Reiff., 1. c, n. 528. * Can. Testes 15, C. 3, q. 9; et Can. 3, C. 5, q. 2. * Miinchen, 1. c, vol. i. , p. 146. * Reiff., 1. c, n. 313; Schmalzg., 1. c, n. 102. 98 Of Judicial Proofs. {b) the quantity — v.g., if one asserts that Titius stole a hun- dred, another only five dollars ; (r) the quality — v.g., if one says that the horse sold to Sempronius was lame, another that he was sound ; {d) time and place — v.g., where one wit- ness states that the crime was committed on such- a day, another on another day, etc' 850. Q. Now, do singular witnesses prove anything ? A. We premise: Witnesses may be singular or disagree in three ways. First, by directly contradicting each other in regard to the same fact — v.g., when one of them says the theft was committed in such a place or at such a time, another in another place or at another time. Secondly, by testifying to two different acts or occurrences, which, how- ever, converge to one central or main fact — that is, tend to prove one and the same thing — if one deposes that he saw Titius stealing the horse, another that he heard Titius con- fessing he had stolen the horse. Here, as is manifest, while the depositions refer to two different specifications, they nevertheless help each other in proving the same crime or corpus delicti. Thirdly, by testifying to two different acts or facts having no connection with or opposition to each other, and consequently not tending to prove the same thing — v.g., if one says Titius murdered Caius, another that he killed Sempronius.' 851. We now answer: Witnesses of the first kind, no matter how numerous, even though there were a thousand, prove nothing whatever.' In fact, when we said above* that two witnesses constitute full proof, we added, provided they agree in their testimony. In regard to witnesses of the second class, a distinction must be drawn between civil and criminal causes. In civil causes they sometimes constitute full proof {probatio plend), sometimes only half or imperfect ' Reiff., 1. c, n. 283. * Reiff., 1. c, n. 288; Schmalzg., 1. c, n. 105. ' Cap. 9, de Probat. (ii. 19); Schmalzg., 1. c, n. 106. * Supra, n. 833. Of Judicial Proofs. 99 {probatio semiplend) ; in other words, a sufficient number of such witnesses — v.g., two — sometimes establishes a thing fully, sometimes only imperfectly, just as though they agreed in each and every particular.' In criminal causes, however, they do not constitute full proof, but merely a pre- sumption.* The reason is that in these causes the evidence must be as clear as the noonday sun, and in every respect perfect, full, and unobjectionable.' Hence, in criminal causes, two or more witnesses who in any way disagree do not suffice for conviction. This holds, of course, also in the United States, for the simple reason that every person is entitled to be considered innocent until he is fully, clearly, and juridically proven guilty. Witnesses of the third class, no matter how numerous, constitute only an imperfect, not a perfect proof. 852. Q. What is the force of the testimony of contra- dictory witnesses {testes contrarii) ? A. A witness may be contradictory in two ways : by contradicting {a) himself, or {b) other witnesses. In the latter case it is important to see whether the contradictory witnesses have been produced by one and the same party or by different parties. Where they are produced for and by the different parties, — namely, some by and for the plaintiff, others by and for the defendant, and are equal in number on both sides — in other words, where the number of witnesses denying is equal to the number affirming a thing, sentence must be pronounced, other things being equal, in favor of the accused or defendant, except in the causes of marriage, dower, liberty, etc." Where they are produced by the same party, — v.g., by the plaintiff, — we must again distinguish : Either this party produces but two witnesses, and these con- tradict each other; or he produces a greater number, of ' Arg. ex 1. 16, Cod. de Poenis (9. 47); Schmalzg., 1. c. ' Reiff., 1. c, n. 307. * L. 25, Cod. de Probat. (4. 19); Can. 39, c. 2, q. 7. •* Ex cap. 3, de Probat. lOO Of Judicial Proofs. whom two or more agree in their testimony. In the first case, the two witnesses prove nothing whatever ; in the second, the testimony of the two concordant witnesses con- stitutes proof, though it is manifest that their testimony is weakened by the contradictory assertion of their fellow- witnesses.' Coming now to the case of a witness contra- dicting himself, it is certain that the testimony of a witness who expressly contradicts himself in his judicial deposition is of no value whatever,^ unless he forthwith corrects him- self.' 853. Q. Do hearsay witnesses {testes de miditu aliend) prove anything? A. We premise : i. By hearsay witnesses {testes de auditu aliend) we mean those who depose that they have heard the facts from others worthy of belief.* Contradistinguished from these witnesses are what are called testes de sclent ia — that is, witnesses who testify of their own personal knowl- edge ; in other words, witnesses who testify to what they have learned through their own senses — v.g., by their eyes or ears. Thus a witness who testifies that he saw Titius killing Caius or heard him blaspheming, is a witness de scientia." 2. Now, by the law of the Church, only those are proper and competent witnesses who belong to the latter class, or who have received the knowledge of the facts in the case through their own senses, and not from others. This is clear from the Can. Testes 15, C. 3, Q. 9, where Pope Callistus, w^riting to the Bishops of France, says: " Nee de aUis causis vel negotiis dicant" (testes) "testimonium, nisi de his, quae sub praesentia eorum acta esse noscuntur." The very title of this canon is : " Testes non dicant testimonium nisi de his (\\x2ie praesentialtter et veraciter noverunt." 854. We now answer: Hearsay witnesses are not wit- ' Schmalzg., 1. c, n. 107; Reiff., 1. c, n. 322 sq. ' Can. 3, q. 9; et can. 23, q. 7; cap. 34, de Appell. ' Cap. 7, deTest. cog. (ii. 21). * Reiff., 1. c, n. 346. * lb., n. 342. Of Judicial Proofs. lOi nesses in the proper sense, and, no matter how numerous, do not, as a rule, prove anything, but constitute at most a pre- sumption.' In fact, as we have seen from the Can. Testes above cited, a witness can testify only to what occurs in his presence and is learned through his own senses. This applies more particularly to criminal causes. For in these causes hearsay witnesses not only do not prove anything, but do not even constitute a presumption against the accused. For, as we have frequently said, in criminal causes the proofs must be altogether certain and unobjectionable.'' We said above, as a rule ; for there are some exceptions. Thus the testimony of hearsay witnesses is admissible, and constitutes proof when alleged for the defence of an accused.^ 855. What is meant by the publicatio attestationum? When the examination of the witnesses is finished, a day is appointed by the judge on which the depositions, together with the names * of the witnesses, are read in the hearing of the contending parties — namely, the plaintiff and defendant. This is called publicatio attestationum, or the communication of the depositions and testimony to the parties. Both the litigants must be cited to be present at this act. The reason is, that the parties must always be cited whenever anything which affects them or is likely to be prejudicial to them is transacted in court. After the publication of the testimony, the judge, at the request of the parties, is bound to give them a copy of these depositions, as taken down by the notary, in order to enable them to except to the testimony if they wish.' 856. Here the question arises : What objections or excep- tions can be made against witnesses after their depositions have been published or read before the parties ? We dis- tinguish between three kinds of exceptions: i. Some, as we have seen,' regard the persons of the witnesses — v.g., when it ' Reiff., 1. c, n. 360. '^ lb., n. 362. ' Schmalzg., 1. c, n. 112. ^ In causes of heresy the names of the witnesses are not made known. ' Schmalzg., 1. c, n. 116. « Supra, n. 825-833. I02 Of Judicial Proofs. is objected that the witness is disqualified because of his enmity, bad reputation, etc. 2. Others have reference to the mode of examination — v.g., when it is objected that the witnesses have not been examined under oath (where the oath is obHgatory), or not apart from each other.' 3. Others, finally, relate to the testimony itself — v.g., when the objec- tion is raised that the testimony is vague, indefinite, contra- dictory, not to the point, etc," 857. We now answer : Exceptions of the third class — namely, those which are advanced against the testimony itself — can evidently be made only after the publication of the testimony, for the simple reason that this testimony does not become known (in case the parties are not allowed to be present at the examination of the witnesses) ' to the parties before that time. Exceptions of the second class — that is, exceptions against the mode of examination — can be made, as appears from the nature of the case, partly before and partly after the publication. But exceptions of the first class, or exceptions against the persons of the witnesses, must, as a rule, be made before the publication of the depo- sitions ; in other words, they must be made when the wit- ness, as we have seen,^ is about to take the oath, prior to deposing.^ The reason is chiefly, that there is ground to fear that after the witness's deposition becomes known, the party against whom he has testified, being irritated by the adverse testimony, will maliciously try to invent causes of suspicion against the witness.* 858. We have said, as a rule ; for there are three cases where exceptions can be made against the persons of the witnesses, even after the publication of their testimony — namely, i, where the defendant or accused has, prior to the examination of the witness, or the publication of his testi, ' Supra, n. 836-844. * Supra, n. 846-849. ' Cf. supra, n. 840, 841. * Supra, n. 837. ' Cap. 31, de Test. ^ Schmalzg., 1. c, n. 12S, 129. Of Judicial Proofs. 103 mony, reserved, as is now usually done, the right to make such objections. 2. If the facts upon which the objection is based — v.g., the fact that the witness has been bribed, is infa- mous, etc. — become known to the defendant only after the publication of the testimony. 3. Where the defendant gives under oath a reasonable excuse for not having sooner made the objection ; nay, when there is question of absolute disa- bility of the witness — v.g., where the witnesses are excommu- nicates vitandi, or infamous b}'^ law, he can object to them, even though he does not allege any excuse under oath, as just stated.' Note. — It is advisable, as a rule, to object first against the deposition or the mode of examination of the witness, and only afterwards, if the force of his testimony cannot be otherwise broken down, against his person." 859. We observe that, ordinarily, exceptions against a witness do not hinder his being admitted and examined, the judge being vested with discretionary power to defer his decision on the exception to the end of the trial.* The rea- son is, that during the progress of the trial it may become apparent that there is sufficient other evidence, exclusive of that of the witnesses in question, to enable the judge to de- cide the cause, and that, consequently, it is useless to dispute about the admissibility of the objectionable witnesses.* We say, ordinarily ; for there are some exceptions, of which the following are chiefly to be noted : i. Where a defect or disa- bility is objected to a witness, which is notorious, or at least can be proved without delay ; ^ 2. Where there is a presump- tion of law against the witness ; 3. Where the witness is accused of being a deadly enemy of the person against whom he is produced ; " or that he is exconimunicatus vitandus^ 860. Can witnesses be compelled to testify in eccle- ' Ex cap. 31, cit., de Test. (ii. 20); Schmalzg., 1. c, n. 129. * Schmalzg., 1. c, n. 135. ^ Auth. Si Testes, Cod. de Test. * Schmalzg., 1. c, n. 136. ^ Cap. 7, de Test. * Authent., cit. ' Cap. 2, de Excep., in 6°. I04 Of Judicial Proofs. siastical courts? They can, and that by censures — namely, excommunication in the case of laics, and suspension, excom- munication, and dismissal in the case of ecclesiastics. Pope Alexander III. thus lays down the law, which is still in force : " Mandamus quatenus testes ab alterutra partium in suae assertionis testimonium invocatos, ne veritatem occulterit, diligentius moneas et inducas. Si autem odio vel gratia, vel timore se subtrahant, cos ad ferenduni testimonium . . . ecclcsiastica districtione compcllas."^ However, before re- course is had to compulsory measures or censures, suasion should be employed, as is evident from the above decretal of Alexander III.* Where censures have to be resorted to, they must be preceded by the usual warning or mo7iitio canonka.^ We observe, however, that it is scarcely advisable at the present day to make use of censures to compel wit- nesses to testify in ecclesiastical courts. For these penalties, as Card. Soglia* says, are not unfrequently disregarded by the laity. 86i. Do the above laws, authorizing ecclesiastical courts to compel witnesses to testify, and that even under pain of censure, apply also in the United States? They do, at least per se. The reason is, the common good requires here, as elsewhere, that the ecclesiastical judge should have power to compel witnesses to testify, " ne Veritas occultetur, et ne malus ut bonus aestimetur." * We say, per se; for it is mani- fest, for the reason given already, that it were hardly advis- able to resort to compulsion or censures in this country. Hence, also, the Instruction of the S. C. de Prop. Fide, July 20, 1878, ordains that where witnesses are unwilling to come and testify before the Commission of Investigation, J Cap. I, de Test. cog. (ii. 21); cf. ib., cap. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 ; L. 16 et 19, C. de Test. (iv. 20); Reiff., 1. 2, t. 21, n. 2; Schmalzg., 1. 2, t. 21, n. I. ^ Cf. cap. 3, de Test. cog. ' Miinchen, 1. c, vol. i., p. 140. * Inst,, vol. ii., p. 295, ed. Vecch. * Reiff., 1. c, n. 5. Of yudicial Proofs. 105 the latter body shall appoint at least two of its members to go to the witnesses for the purpose of obtaining all the information possible. Here are the words of the Instruc- tion : " Quod si testes nolint . . . Consilio assistere . . , duo saltem ex Consilio deputentur, qui testes adeuntes . . . re- lationem suae investigationis, ad Consilium deferant . . ," * 862. But in case it were deemed advisable to compel witnesses to testify before our Commissions of Investigations, the mode of procedure would seem to be this : The Com- mission having the right to summon witnesses,'' has also the right and duty to declare them contumacious,— /.£"., in con- tempt of the Commission, in case they refuse to appear, without alleging any reasonable excuse, and to report this contumacy to the bishop, whose right and duty it is to inflict upon the recalcitrant witnesses the proper ecclesi- astical censures, after due warning. Art. IV. 3. Of Instruments. 863. The next species of proofs is called instruments ( instrtnncnta, doaivicntd). By instruments we here mean any writing drawn up or produced for the purpose of prov- ing something.^ They are divided into public and private. A public instrument {instrumentuin publicum), in the strict sense of the word, is one which is drawn up {a) by public authority — that is, by a public official, or person authorized by law, namely, by a notary ; {U) with the requisite formali- ties." We say, in the strict sense ; for in a broad or general sense all instruments which have public authority, and con- sequently all authentic private instruments, are considered ' Instr. cit., § 15, Quod si testes. * lb., § 10, Quod si ulterior. ® Schmalzg., 1. 11., t. 22, n. i; Devotl, 1. 3, t. 9, § 20. * Ex cap. 2, 6, de Fid. Instrum. (ii. 22); Relff., 1. 11., t. 22, n. 7. io6 Of Judicial Proofs. public instruments.' We say, moreover, with the requisite formalities. Now, what formalities are chiefly" required in a public instrument proper? i. It should begin with the in- vocation of the name of God, thus : In the name of God, Amen ; or. In the name of the Most Holy Trinit)\ 2. It should be properly dated — that is, give the day, the month, and year of our Lord when the document was written. 3. It should, moreover, state the name of the reigning pope, and supreme civil ruler ; the place — />., not only city or town, but also house and street — where the transaction men- tioned in the instrument took place. 4. The names also of the witnesses who were present when the transaction which the instrument records took place. Two witnesses are at least required. It is not, however, necessary that the witnesses should themselves sign the instrument, it being sufficient for the notary to mention their names in the docu- ment. 5. The notary himself must sign his name to the in- strument, which should not contain any abbreviations.' 864. Public instruments in the proper sense of the word are divided {ci) into protocols {protocolld) — that is, rough drafts or minutes of a transaction, which are afterwards written out in a fuller, clearer, and more orderly manner; {b) transumpts {transumpta) — that is, the protocols as written out in the full manner just stated, provided they (that is, the transumpts) are original and authentic.^ 865. Private instruments {instrumenta privatd) are those which are written either by a private person, or without the prescribed formalities.* They are divided into authentic and non-authentic. Authentic private instruments {instrumenta privata autJienticci) are those which are writteh indeed by private persons, but {a) are attested or signed by competent witnesses, {b) or bear an authentic seal, {c) or are authenti- ' Reiff., 1. c, n. 6, 14, 16. ' Reiff., 1. c, n. 17-29; Schmalzg., 1. c, n. 13, ' Schmalzg., 1. c, n. 2. * lb., n. 36; Kutschker, Eherecht, vol. v., p. 871; Miinchen, 1. c, p. 162. Of Judicial Proofs. 107 cated in some other customary lawful manner. The follow- ing are authentic private instruments: i. All judicial acts {acta judicialid) — that is, the minutes and records of judicial proceedings written by persons appointed by the court, even though not notaries.' 2. Writings taken from the files of public archives — v.g.^ episcopal or diocesan archives. 3. Writings drawn up indeed by private persons, but bearing a public or authentic seal — v.g., of a bishop, or corporation having the right to use a seal. 4. Writings or letters of private persons, which are subscribed by three, or sometimes only by two, witnesses still living, and verifying their signa- ture." 5. Parochial registers of baptisms, marriages, etc. Non-authentic private instruments {instrumenta privata non- authenticd) are those writings or letters of private persons, which are not authenticated in the above manner, as ordi- nary letters.' 866. Force of instruments. — A public instrument — a pro- tocol as well as a transumpt — constitutes of itself, and with- out any other corroborative evidence, full proof, either in favor of or against the party producing it, until the contrary is proved, provided the original and not merely the copy be produced.^ We say, protocol as well as, etc. Here we observe that some canonists contend that the protocol, being but an inchoate instrument, does not constitute full proof. However, the contrary opinion is more commonly held. We say, moreover, 0/ itself, etc. ; that is, one instrument of this kind has the same force as two concordant and unexception- able witnesses.^ We say, again, until the contrary is proved ; for even pubhc officials may commit fraud or error. Hence, when such deception or error is proved, the instrument loses its force or authority. We say, finally, provided the original, etc. ; for credence or belief is not easily given to a copy, ■ Ex cap. II, de Prob. (ii. 19). ^ Ex cap. 2, de Fid. instr. ' Reiff., 1. c, n. 143. ^ Ex cap. I, 2, de Fid. instr.; L. 15, C. de Fid. instr. (iv. 21. ^ Cf. cap. 10, de Fid. instr. (ii 22). ^ Io8 Of Judicial Proofs. except it be lawfully or properly taken from the original by a public person.* 867. What has been said concerning the force of public instruments proper, applies also to authentic private instru- ments. For, as we have seen above," these latter writings have the same force and effect as public instruments proper.' 868. But a non-authentic private instrument constitutes, generally speaking, full proof {a) only against the writer himself, and that {b) provided he acknowledges it as his own or as written by himself, ic) or when (in case he denies having written it) the authenticity or genuineness is proved ; otherwise the instrument proves nothing.* We say, first, provided he (the writer) acknowledges it as his oiun ; for such an acknowledgment, when made in writing, even though extrajudicial, has the force of a judicial confession.' We say, secondly, when, in case he denies, etc.; for if the alleged or presumed writer denies that he wrote the letter, or con- sented to its being written, the adversary on producing the letter or instrument must prove it — v.g., by comparison of handwriting, or by competent witnesses who testify that they were present and saw him write the letter. Three such witnesses are required.' We say, finally, only against the writer himself ; and in this respect public and authentic private instruments differ from non-authentic private instru- ments. The latter constitute proof, as a rule, only against the writer, and not in his favor nor against a third party ; while the former prove either for or against their writer or a third party/ 869. Production of instruments during the trial. — To pro- ' Cap. I et 16, de Fid. instr. (ii. 22) ; Soglia, ed. Vecch., vol. ii., p. 296; Schmalzg., 1. c, n. 22-36. * Supra, n. 863. ' Reiff., 1. c, n. 14 et 16. * L. 5, C. de Prob. (iv. 19); ex cap. 2, de Fid. instr. ; Reiff., 1. c, n. 158, 170. s L, 26 ff. Depositi (16. 3); Reiff., 1. c, n. 170, 173; Schmalzg., 1. c, n. 77. * Reiff., 1. c, n. 163. ' lb., n. 12, 174. Of Jtidicial Proofs, 109 duce an instrument {producere instrtimenium) or document or writing, is to submit it to the court or judge for the purpose of proving an allegation. This production can take place, ordinarily, only after the litis contestatio or making of the plea, or where no formal litis co?ttestatio is required, after the act which is construed as the litis contestatio. The reason is, that proofs of whatever kind — whether by witnesses or otherwise — cannot, generally speaking, be submitted to the court before the plea/ 870. Is a litigant bound to show his instruments to the opposing party ? We distinguish between the plaintiff or prosecution and the defendant or accused. It is certain that the plaintiff or prosecutor is obliged to exhibit his instrument to the defendant; but the latter is not, as a rule bound either in civil or criminal causes to communicate his documents to the plaintiff or prosecution." The reason, among others, is that the defendant or accused is an unwilling party to the trial, and appears merely to defend himself, not to cause any damage to another person. Hence it is not strange that the law (we speak of canon law) should be more favorable in this, as in similar matters, to the defendant or accused.' 871. We said, "is not, as a rule, bound;" for there are some exceptions. Thus the accused or defendant must show his instruments to his opponent — v.g., (a) where the instru- ments do not belong exclusively to him {i.e., defendant), but are common property.* Thus the judge or notary is bound to show all the acts or minutes of the trial to any of the interested parties, and, consequently, also to the plaintiff or prosecution, even to the prejudice of the defendant. For * Ex cap. un, de Lit. cont. ; cap. i et seq., ne lit. non cont. ; Reiff., 1. 2, t. 19, n. 142 sq. ' Cap. I, de Probat. (ii. 19); cap. 5, de Fid. instr., L. 7 ff . de Testibus; L. i et 4, Cod. de Eden. (ii. i); Schmalzg., 1. 2, t. 19, n. 42. ^ Schmalzg., 1. c, n. 42; MUnchen, 1. c, vol. i., p. 168. * Cap. 12, de Fid. instr.; ib., Glossa, v. Communium. no Of Judicial Proofs. these acts are public or common property.' {h) Again, where the defendant submits an instrument to prove an allegation which is in his favor, he must submit it to his opponent. For he is privileged against being obliged to produce his instru- ments only as against himself — i.e., when they are simply to be used by his adversary as against him.* 872. How is an instrument to be shown to the opposing party ? Where, in accordance with the rules just laid down, a party is obliged to show {edere instriimcntuni) his docu- ments to the other party, it is done in the following manner : The party who is to show the document first presents it to the judge or court. It is then read in its entirety before the judge or his deputy and the opposing party, who is then allowed to take a copy of so much of the paper as relates to the matter under discussion, provided the paper treats of different matters, and not simply of the one which is in con- troversy.^ Where the instrument treats exclusively of the matter in dispute^ the opponent is allowed to copy the whole document* Of course, it is manifest that the opponent, who demands to see the instrument, must be cited to be present in court on the day appointed by the judge for its produc- tion, just as the opposing party is to be summoned to be present at the admission of witnesses. Again, we observe that the original must be produced in court, since belief is •not usually given to a copy.* The person submitting the paper need not, however, leave the original to the judge or court, and thus expose himself to the danger of losing it. It is sufficient for him to exhibit the original in the manner stated, and allow a copy to be taken.' 873. Q- Can instruments be impugned or called in ques- tion ? And if so, in how many ways ? ' L. 2, C. de Edendo (ii. i); Reiff., 1. 2, t. 22, n. 249. * Schmalzg., 1. c, n. 44. ' Cap. 5, de Fid. instr. * Reiff., 1. 2, t. 22, n. 238 sq. ; Schmalzg., 1. 2, t. 22, n. 84. * Cap. I, de Fid. instr. • Reiff., 1. c, n. 236. Of Judicial Proofs. 1 1 1 A. They can, and that chiefly in two respects — namely, {a) either as not genuine, {U) or as containing false state- ments. Thus, first, a paper becomes suspected as having been forged, and consequently its genuineness may be called in question — v.g,, when it is not drawn up with the requisite formalities (when there is question of public instruments), or not properly authenticated.' Secondly, even where an in- strument is conceded to be genuine, it may be attacked as containing misrepresentations, or even false statements, to- tally at variance with the real facts of the case. For it is plain that the writer of an instrument or paper, even though he is a public official, — v.g., a notary, or secretary of the court, — may, either inadvertently or maliciously, misrepresent the transaction recorded by him.^ Consequently, where it is shown — v.g., by competent witnesses^ — that the paper or in- strument, even though genuine, and not forged, or interpo- lated, does not state the truth in any essential point, it loses all its force and authority.'' Art. V. 4. Presumptions iPraesumptiones). 874. The next kind of proofs are presumptions {praesump- tiones). A presumption is a reasonable conjecture or infer- ence in regard to a doubtful matter, based upon signs or indications, which usually lead very near the truth. ^ Schmalz- grueber's " definition comes to the same. He saj^s : " A pre- sumption is a conjecture or opinion based upon some prob- able sign or indication, and submitted as proof, or assumed by the judge in proof of a doubtful matter." ^ Presumptions, ' Cap. 6, de Fid. instr. * Munchen, 1. c, p. 165. 3 Cap. 10, de Fid. instr. « Cf. Reiff., 1. c, n. 286. ' ' Todeschi, Man. du Droit Can., I. 2, t. 23, n. i, p. 151. « L. 2, t. 23, n. I. •» Cf. Reiff., 1. 2, t. 23, n. 3. 1 1 2 Of Judicial Proofs. therefore, constitute what is called in civil law circumstantial evidence. In fact, the word pracsiimptio comes from the two words prae and sumptio, which mean the taking a thing for granted or to be true prior to or without being directly and positively proved. Presumptions do not establish or prove a thing or fact directly, but only inferentially. 875. Division. — Presumptions are divided into pracsump- tiones hominis and juris, according as they come from persons or from the law (in our case, canon law). Hence a presump- tion is personal or of man i^pracsumptio hominis) when it is derived from personal observation — namely, when a person from certain signs or circumstances infers something, or as- sumes a thing to be true, until the contrary is proved.' This personal presumption is {a) either rash (ypraesninptio tcmcrarid) — namely, when it proceeds from slight or frivolous reasons, and then it is called suspicion, rather than presumption ; {b) probable, reasonable., or grave [praesumptio probabilis), — namely, when it arises from conjectures or signs, capable of persuading a prudent person ; in other words, when it is based upon signs or facts which are very frequently connected with what is presumed — v.g., if a woman is suspected of un- chastity, because she is frequently seen alone wnth young men, especially if it be in solitary places, (r) Violent {prae- stiviptio violenta, veheinens), when it is based upon several signs, or even one sign or fact, which points very strongly and forcibly to the fact presumed, in such manner as to leave, morally speaking, no doubt as to the thing presumed. Such is the presumption that fornication was committed, "si solus cum sola, nudus cum nuda, in eodem lecto sunt deprehensi.' 876. A presumption is legal or of the law {praesumptio j'lcris) when the law itself infers something from certain circum- stances or contingencies. The difference between the prae- sumptio homiriis and the praesumptio Juris is that in the latter ' Schmalzg., 1. c, n. 4. * Schmalzg., 1. c. n. 5. Of Judicial Proofs. 113 case the law itself (in our case, canon law) enacts or directs that from certain facts or circumstances the existence of some other fact is to be inferred, while in the former case the infer- ence or conjecture is based on the reasoning of the judge.' 877. The /rrt^rw is subdivided into (^) the sim- ple presumption of law — namely, that which holds a thing to be true, not absolutely, but only till the contrary is proved, and therefore admits of proof to the contrary ; {b) the prae- siimptio juris ET DE JURE, or that which holds a thing to be absolutely true, in such a manner as not to admit, generally speaking, of proof to the contrary .* Instances of both kinds of presumptions of law are found in various parts of the decretals. We shall give only a few. Thus the law of the Church, by simple presumption, takes it for granted id) that a person born and brought up among Christians is baptized; ' {b) that one who is seven years old has the use of reason.* In like manner, the law of the Church takes it for granted, by presumption which is juris ct de JURE, that a woman who has lived for a year and a half spontaneously with a man whom she married compulsorily, has freely consented to the marriage.^ 878. Effects of presumptions. — The effect of a simple pre- sumption of law {praesumptio juris tantuni) is that a thing is held to be true until the party against whom it stands proves the contrary. Hence it causes the burden of proof to fall upon the latter, so that, unless he overthrows the presumption by sufficient proof to the contrary, the facts against him are considered true,' and sentence may be pronounced accord- ingly, at least in civil causes. The effects of a praesumptio juris et de jure are, among other things, i, that it causes the fact presumed to be taken as completely true or proven, and therefore ordinarily excludes any proof tending to show the ' lb., n. 7; Kutschker, 1. c, vol. v., p. 830, * Schmalzg., 1. c, n. 7. ^ Cap. 3, de Presbyt. non. bapt. (3. 43). ^ Cap. un. de Desp. impub., in 6°. ^ Cap. 21, de Spons. (iv. i); Schmalzg., 1. c, n. 9. * Ex cap. 2, 4, de Prob, 114 Of Judicial Proofs, contrary.' We say, ordhiarily ; since there are a number of exceptions, for which see Schmalzgrueber.^ 2. It deprives the party against whom it militates of the right of appealing. For this party is regarded as both convicted and as having made a judicial confession.^ 3. Sentence may be pronounced in accordance with it. 879. A praesuinptio hominis, when violent, constitutes in civil causes, at least when not of too great importance, full proof, so long as the contrary is not proved, and therefore sentence can be pronounced in accordance with it* We say, *' in civil causes, at least %vJicre tJicy are not of too great import- ance;'' for, as we shall presently see, mere presumptions, even though violent, do not constitute full proof in criminal causes, nor in civil causes of a grave nature ; the latter being placed in canon' law, owing to the gravity of their character, on an equal footing with criminal causes.'' 880. Q. Do mere presumptions suffice for the conviction and condemnation of an accused person in criminal causes? A. We said above, that both simple presumption of law" and violent presumption of man,' so long as the contrary is not established, authorize a judge to pass sentence according to them, ill civil causes, at least, when the latter are not of a very grave character. The question therefore arises : Do mere presumptions, even though very strong and violent, suffice for conviction and condemnation, also in criminal causes ? There are four opinions. The first, which is held by such eminent canonists as Pirhing, Engl, Bouix, denies that an accused can be convicted or condemned on mere presumptions or circum- stantial evidence, even though violent, and contends that he is to be absolved in the case, from the very fact that no posi- ' Cap. 30, de Sponsal. * L. c, n. 12. 2 Ex 1. 2, C. Quor. appel.' non rec. (vii. 65). * Ex cap. 2, 12, et 13, de Praes. (ii. 23); Reiff., 1. c, n. 37, 6r; Schmalzg., 1. c, n. 6. * Reiflf., 1. c, n. 62. « Supra, n. 878, ' Supra, n. 879. Of Judicial Proofs. 1 1 5 tive or direct proof exists against him. The second, which is directly opposed to the first, affirms, provided the presump- tions are violent and give moral certainty. The third holds the mean between the two foregoing, and contends that mere presumptions, even though violent, do not indeed suf- fice for conviction or condemnation, but yet authorize the judge to inflict upon the accused a light penalty — lighter than that which would have been imposed upon him had he been properly convicted. The fourth is that of Schmalzgrueber, who holds, I, that the presumption which is called y^rw^Z de jure suffices for conviction and condemnation ; 2, that other presumptions, even though very strong or violent {praesump- tiones violentae, vehemcntes), do not suffice ; 3, that presump- tions, whether of law or of man, when they are most violent or exceedingly vehement {praesujnptioncs vehementissimac), and based upon signs or circumstances which are, ordinarily speaking, always connected with the crime, and are conse- quently, morally speaking, sure and undoubted indications of the crime, suffice for conviction and condemnation, espe- cially in the case of crimes which are of an occult nature and can be proved only with difficulty. For, these presump- tions, not less than the testimony of two unexceptionable witnesses, constitute a moral certainty, whicih should suffice.' Moreover, if this theory were not admitted, these occult crimes could scarcely ever be punished. 881. Bouix, as we have said, holds the first opinion — namely, that mere presumptions, no matter how violent, do not suffice. For, as he says, the presumptions always leave a doubt as to the guilt of the accused. Now the law of nature, as well as the law of the Church, requires that where there is a doubt, sentence of condemnation should not be passed in criminal causes. Thus the law of the Church de- mands that, in these cases, the proofs must be of the fullest, ' Schmalzg., 1. c. , n. i8 sq. Ii6 Of Judicial Proofs^ clearest, and most undoubted kind — clearer than the noon- day sun. The Cati. Sciant cuncti 2 ' says : " Sciant cuncti accusatores, earn se rem deferre debere . . . quae" (sit) "instructa apertissimis documentis, vel indiciis ad proba- tionem indubitatis, et luce clarioribus expedita." Again, Pope Innocent III., speaking of a person accused of heresy, expressly enacts : " Propter solam suspicionem" (praesump- tionem), " quamvis vchemmtem, nolumus ilium de tarn gravi crimine condemnari." " Hence Reiffenstuel' concludes: " Ex solis praesumptionibus, quamvis vcJiementibiis, nemo in causa criminali condemnandus est." For it is better, as the Roman law adopted by the Church says, "impunitum relinquere facinus nocentis, quam innocentem damnare." * It must be observed, however, that those who advocate this opinion, except those presumptions which leave no doubt whatever as to the crime committed — v.g., where a wife, whose husband has been absent a year, is found enceinte. But, as Bouix ' observes, such presumptions should be called direct proofs rather than presumptions. 882. Q. Can two or more presumptions be combined so as to make full proof ? A. I. They can, in civil causes, at least when the latter are not of a very grave nature. Hence, in these causes, two pre- sumptions combined constitute full proof, provided each of them constitutes of itself a half or imperfect proof,* as is the case with- reasonable personal presumptions.' 2. They can- not, in criminal causes ; for, as Rieffenstuel * remarks in these causes, " requiruntur probationes indubitatae, ac luce meridiana clarioresr Now, as the same author continues, even a num- ber of presumptions, though combined, alwa)^s leave a certain doubt. Bouix ' teaches the same when he says : " In quibus" (causis criminalibus) " duae pluresve semiplenae probationes 1 Caus. 2, Q. 8. * Cap. 14, de Praes. (ii. 23). * L. c, n. 63. * L. 5 flf . de Poenis (48. 19). * L. c, p. 330. « Reiff., 1. c, n. 75. ' lb., n. 34. « lb., n. 77. ' L, c, p. 305. Of Judicial Proofs, 117 non sufficiunt ad condemnandum." In like manner, two presumptions combined do not produce full proof in matri- monial causes as against the validity of a marriage already contracted, nor in general in civil causes of a grave character. 883. A fe%v of the rules goverjiing presumptions. — Rule I. The presumption is always in favor of the validity of an act performed. Hence such act is to be considered as valid and done in the proper manner until' the contrary is proved.* Rjile II. In the United States, and wherever the Tridentine decree tametsiis not promulgated, a man who has had carnal intercourse with his betrothed — i.e., with a woman whom he had previously promised to marry — is presumed in foro externa to have acted cimi affectu maritali, and consequently cannot be allowed to desert her, since he is considered as having contracted and consummated marriage with her. Nay, this presumption is so strong, that it excludes any proof to the contrary, and is therefore a presumptio juris et DE JURE." Hence, even though such a man subsequently contracted another marriage in facie ccclesiae — i.e., publicly and with all the ceremonies of the Church — this marriage would be null and void. 884. Rule IV. From the past the future is presumed.' Thus it is presumed that a person who has been good in youth will be good when older. Again, a person who has been chaste in youth is presumed chaste in old age. So also it is presumed that a person who has been bad in the past will be the same in the future. In fact, the maxim is : " Semel mains, semper praesumitur esse mains,"" unless the amendment of life is clearly established. Rule V. Every person is presumed good unless the contrary is proved.' Rule VI. Neighbors are presumed to know what has hap- pened in their neighborhood." ' L. Si post 4, C. de Juris et facti ignor. (i. i8); Reiff., 1. c, n. 91. ^ Cap. 30, de Sponsal. (iv. i); ib. Glossa, v. Is qui, v. Contra praesumpt.; Schmalzg., 1. c, n. 24. 3 c^p. 6 et 9, de Praesumpt. * Reg. 8 Juris, in 6°. * Cap. fin. de Praes. « Cap. 7, de Praesumpt. ii8 Of Jtidicial Proofs. Art. VI. The Oath as a Proof {^ J ur amentum litis decisorimn). 885. It often happens that litigants can estabHsh or prove their case but imperfectly, not fully, because their proofs are incomplete — v.g., when they have only one competent wit- ness, etc. In these cases recourse is frequently had to the oath for the purpose of deciding the matter or cause, which otherwise would have to remain undecided. Hence this oath is called {a) decisive {^juramentum litis decisorium), because its effect is to decide the case or end the dispute ; {b) sup- plementary (yjiiramentum siippletoriiwi), since it supplies the want of complete ordinary proofs, or fills up the gaps in the evidence submitted ; {c) purgative (juramentum purgatoriuin), because, when taken by an accused, it purges him of all suspicion of guilt. 886. As will be seen, this oath must not be confounded {a) with the oath taken by witnesses prior to deposing, as it is taken by the litigants themselves — that is, by the plaintiff or defendant ; {p) nor with the oaths called respectively juramentum. calumniae, malitiae and veritatis dicendae, which are indeed taken by the litigants themselves, but not for the purpose of staking the decision of the cause upon them, but simply to pledge themselves to act in good faith, not mali- ciously, and to say the truth during the trial.* 887. This decisive oath is divided into judicial and extra- judicial, according as it is taken in or out of court (we speak of ecclesiastical courts) or judicial proceedings. The decis- ive extrajudicial oath is defined to be that oath which one of the contending parties, voluntarily or by agreement, tenders to the other out of court, on condition that he will abstain from all further judicial proceedings if it is taken." As is ' Reiff., 1. 2, t. 24, n. 12 sq. ' Ex 1. Jusjurandum 17 ff. de Jurejur (xii. 2); Schmalzg., 1. 2, t. 24, n. 10. Of yudicial Proofs. 119 evident, this oath is made use of {a) before the matter has been brought into court ; {U) bj those parties who, having insufficient proof, and fearing the expenses of a trial, are anxious to end the dispute without judicial proceedings. 888. The party to whom this extrajudicial oath is ten- dered is entirely free to agree to take it or not. But once it has been taken its effect is to decide the matter, since it is regarded in the light of a transaction or settlement between the parties.' Thus a person who, upon having the oath tendered him, swears, v.g., that he owes the other party nothing, gains his case, and acquires the same right as if he had obtained a judicial decision in his favor, or settled the matter with his opponent. This holds so true, by the law of the Church, adopting in this respect the Roman law, that if the cause were afterwards brought before the judge, he would be obliged, as a rule, to decide in favor of the one who took the oath. For in the case the judge could not inquire into the justice or merits of the cause itself, but simply whether the oath was taken, and under what agree- ment. Having ascertained this, he would have to ratify the agreement and subsequent oath.* Some canonists do not, however, admit that this oath cuts off recourse to judicial proceedings and finally settles the matter in dispute.' 889. What is the decisive judicial oath? As we have seen, the decisive extrajudicial oath is resorted to out of judicial proceedings. Sometimes, however, the oath is made use of to decide causes, even in the cause of judicial proceedings or the trial — namely, when it is found that the proofs are not sufficient to determine the matter. In this case the oath is called judicial, and is divided into [a) simply judicial {b) and necessary or compulsory. It is called simply judicial {juramefitum judiciale) when offered by one of the ■ L. 2ff. de Jurejur. '^ L. 5 ff. de Jurejur., § 2; Schmalzg., 1. c, n. 20, 21. 3Cf. Reiff., 1. c.,n. 134. I20 Of Judicial Proofs. litigants themselves to the other, not indeed by order, but yet by approval of the judge, on condition that if he takes it he shall gain the case, without any further judicial proceed- ings.' The party to whom it is offered, with the approval of the judge, cannot without just cause refuse to take it, unless he prefers to tender it in turn to the opponent who first tendered it.* If he refuses to do either, without just cause, he loses the case. We say, without just cause ; for there are many reasons why he may decline to take both the simple judicial oath and the necessary oath. Thus, he may decline where he has already fully proved his case. The judge may also excuse him if he sees fit.^ Once taken, it has the effect of full proof, so that sentence should be pro- nounced for the one who has sworn. It has, moreover, the force of a compromise or settlement, and of res judicata, and consequently excludes the right of appeal.* 890. The decisive judicial oath is -called necessary {jura- mentum neccssariiun) when the judge himself, having taken cognizance of the cause, and finding the proofs insufficient, tenders it to one of the litigants. It is called necessarj'-, both because the judge is obliged to tender it when requested to do so by one of the parties, or even sometimes ex officio, and because the party to whom it is tendered cannot refuse to take it without just cause, nor can he in turn offer it to the opponent." Again, this oath, as will be observed, is tendered by the judge himself either ex officio or at the request of one of the parties, while the others are tendered by the parties themselves to each other. Finally, it may be administered for two purposes : id) to complete insufficient proofs ; {b) and to purge an accused of all suspicion of guilt.' 891. In what causes can the necessary judicial oath be ' Schmalzg , 1. c, n. 24. * Cap. 36, de Jurej. (ii. 24). " Schmalzg., 1. c , n. 31. * L. 2 ff. de Jurejur. (xii. 2), Soglia, ed. Vecch., vol. ii., p. 298. * Reiff., 1. c, n. 139; Schmalzg., 1. c, n. 40. * Schmalzg., 1. c. Of Judicial Proofs. 121 tendered by the judge ? As a rule, in all causes whatever which are not specially excepted. Now what causes are excepted? Chiefly the following: i. All criminal causes when tried criminally, not merely civilly. The oath may, however, be tendered in these causes to the accused for the purpose of establishing his innocence, though not to the plaintiff or prosecuting party in support of the charges, or as a means of completing his proofs otherwise incomplete. The reason of the latter conclusion is that in criminal causes, as we have repeatedly said, the prosecuting party must sus- tain his charges fully and completely ; in other words, the proofs against the accused must be of the fullest, clearest, and most convincing kind, so as to leave no doubt of the guilt.' Now this cannot be said to be the case with imperfect proofs even when supplemented by the oath." We said : The oath may, however, . . . be tendered to the accused for the purpose of establishing his innocence. This holds, of course, only when the charges against him have been already imperfectly proven. For where they have not been sustained at least imperfectly, or to some extent, the accused, even though he has not 3'et said a word in his defence, cannot be compelled to purge him- self from the charges by an oath, but is simply to be absolved or declared not guilty.^ 892. 2. All causes imperilling the reputation of a party [causae famosae) ; in other words, those causes where a per- son who is condemned becomes infamous — v.g., causes of theft, usury, etc. However, in these causes, as in criminal causes, the oath can be tendered to the defendant to purge himself from suspicion, but not to the plaintiff in completion or supplement of his imperfect proofs." 3. Civil causes of a very grave nature. For they are, as we have seen, placed on the same footing with criminal causes. ' L. fin., C. de Probat. ' Schmalzg., 1. c, n. 47. ^ Cap. 36, de Jurej. ; ib. Glossa, v. probatione. * L. 6 ff . de His qui not. (iii. 2). 122 ' Of Judicial Proofs. 893. 4. Matrimonial causes, wliere there is question of dissolving or sustaining a marriage already contracted. These causes may be said to come under the foregoing head, being civil causes of a very grave character. When, how- ever, there is question of a marriage about to be contracted, the oath can be tendered to a person bearing a good name, who has imperfectly proven the existence of an impediment.' 894. The chief effects of this necessary oath are: i. The party to whom it is tendered by the judge cannot offer it to the opponent or refuse to take it except for just cause. And if he refuses without just cause he loses the case.* 2. Once taken, it perfects the imperfect proofs, so that sentence must be pronounced in favor of the one who took it. From this sentence, however, it is allowed to appeal, and that, in case new documents are discovered, even after the lapse of ten days." ' Ex Cap. 34, de Jurejur.; ib. Glossa, v. absolulo; Schmalzg., 1. c, n. 51. * Cap. 36, de Jurej. ; ib. Glossa, v. a te; L. 12, C. de Rebus cred. (iv. i). ^ L. 31 ff. de Jurejur. (xii. 2); Schmalzg., 1. c, n. 56. PART II. OF ECCLESIASTICAL JUDICIAL PROCEDURE, IN PARTICULAR. 895. Under this heading we shall speak, i, of the or- ganization or personnel of the episcopal and metropolitan courts of justice ; 2, of ecclesiastical trials, both ordinary and extraordinary, in criminal causes ; 3, of ecclesiastical trials in civil causes. CHAPTER I. ORGANIZATION OF THE BISHOP'S COURT OR TRIBUNAL FOR THE EXERCISE OF JUDICIAL POWER, ALSO IN THE U. S. {De Curia Episcopali.) 896. Where the common law of the Church obtains, the bishop's court or judicial tribunal is composed, i, of the bishop or his substitute, the vicar-general, as judge ; 2, fre- quently, also, of assessors and auditors, who act as counsel to the judge ; 3, of a fiscal promoter or prosecuting advocate ; 4, of a notary or chancellor, or clerk ; 5, of a messenger, who delivers the citations or other orders of the court. We shall briefly describe the rights and duties of each of these officials. Art. I. Of the Judge. 897. We have already spoken at sufficient length of the ecclesiastical judge.' We shall here add but a few remarks. > Supra, n, 711 sq. 1 24 Organization of the Bishops Court or Tribunal The bishop is the ordinary judge of the first instance, for his diocese. Hence his judicial tribunal constitutes the court of the first instance, for all ecclesiastical causes whatever, of his diocese. In other words, all causes belonging to tl^e ecclesiastical forum must, before being appealed to the higher ecclesiastical judge, be first tried, or taken cognizance of, and decided by the ordinary of the diocese, or his repre- sentative.' 898. From this rule, however, the following cases are excepted: i. Where canon law expressly directs that the matter shall be tried before the Holy See ; 2. Where the Pope, in view of peculiar circumstances, deems it proper to reserve the hearing or decision of the cause to the Holy See. In this case, however, a special rescript, signed by the Holy Father himself, is necessary." 3. Where the ordinary has not terminated the cause within two years, at the latest, from the time the action was instituted or the proceedings begun. 4. Where both the ordinary and the contending parties agree to have the case tried directly before the Holy See.' 899. The bishop, being the ordinary judge of his diocese, can adjudicate causes — i.e., preside at trials or the hearing of causes, and pass sentence — either in person or through others. As a rule, bishops in Catholic countries try or hear causes, not in person, but through their vicars-general. It may therefore be said that in these countries vicars-gene- ral, generally speaking, preside at all ecclesiastical trials, in the bishop's stead. Of course the bishop is not restricted to allowing the vicar-general to act for him in these matters ; he may also delegate or authorize others to sit as judges in his stead, in particular cases, or even in a certain kind of ' Cone. Trid., sess. 24, C. 20, de Ref. ' lb. ; cf. Molitor, Kanonisches Gerichtsverfahren, p. 212. ' S. C. C, 4 Aug., 1691, ap. Richter, Can. et Decret., p. 319; Phillips, Com- pend., ^ 179. for the Exercise of Judicial Power, also in the U. S. 125 causes — v.g., in all criminal causes.' The latter, however, would be only delegates, and consequently appeals would lie from them to the bishop. The vicar-general, on the other hand, is a "judex ordinarius," and forms one and the same court with the bishop, and therefore appeals from him must be made, not to the bishop, but the higher superior." In criminal and disciplinary causes of ecclesiastics, in the United States, the bishop's part, rights and duties, so far as the hearing or trial of the cause is concerned, have been as- signed by the Holy See, in its Instruction of July 20, 1878, to the Commission of Investigation, to be established in each diocese. Art. II. Auditors of the Bishop's Court — Resemblance between them and our Commissions of Investigation. 900. There are two kinds of auditors : some are judges in the proper sense of the term — namely, the auditor of the apostolic chamber {auditor camerae apostolicae), and the auditors of the Rota {auditores Rotae) ; others — namely, those of episcopal and archiepiscopal courts — are not judges, but merely officials or persons to whom a cause is either in whole or in part committed, in order that, having dili- gently examined its merits, they shall report the entire affair to the judge for his decision.' These auditors have indeed jurisdiction so far as the hearing or taking cognizance of the cause is concerned, so that they can summon the parties, admit witnesses, proofs, etc. but they have no jurisdiction so far as the final sentence is concerned, and consequently they cannot pronounce definitive sentence, unless they have been especially empowered to do so.* Hence they may be 1 Molitor, 1. c, p. 268; Bouix, de Jud., vol. i., p. 469. ' Molitor, 1. c, p. 269. '^ Ex Cap. 27, de Off. jud. del. (i. 29); Craiss., n. 5758. * Schmalzg., 1. 2, t. i, n. 15. 126 Orgamzatzoji of the Bishop's Court or Tribiinal compared to the referees or masters in chancery of the secu- lar courts of the United States. 901. It will also be observed that there is a striking- re- semblance between these auditors and our Commissions of Investigation, who, while charged with the entire and exclu- sive hearing of the cause, cannot pronounce final sentence, but must simply report the whole case, together with their verdict, to the bishop, whose sole privilege it is to pass final sentence, and that either in conformity with or opposition to the advice or report of the Commission. 902. According to the common law of the Church, the judge or bishop is not obliged to appoint any auditors for his court. There are, however, cases where it may be expe- dient for the bishop to appoint an auditor for his vicar-gen- eral (where the latter sits in court, in the bishop's stead, as is the case nearly all over Europe) — v.g., (a) where the number of causes is too great to be expedited in proper time by the vicar-general alone ; (6) where the vicar-general is not versed in canon law. The jurisdiction of these auditors is delegated, not ordinary.* 903. Is it allowed to appeal from an auditor? It is, I, when he acts as a judge proper ; 2, when he is justly suspected by the parties — that is, when there are good reasons for believing that he is biassed against the parties." That this holds also of Commissions of Investigation in the United States, we shall show a httle farther on. Art. III. Assessors of the Bishofs Court — Are Commissions of Investiga- tion in the United States Assessors of the Bishop's Court f In what sense ? 904. Assessors {assessor es^ are persons appointed to assist the judge t>y their advice, in the hearing of causes and the • Cap. 27, de Ofif. jud. del. (i. 29). ' Bouix, de Jud., vol. i., p. 461. for the Exercise of Judicial Power, also in the U. S. 127 conduct of judicial proceedings. Hence they are also called counsellors {consiliarii) of the judge.' By the common law of the Church, assessors have no jurisdiction. For their office consists simply in giving advice to the judge, who is not bound to follow it.'' We say, by the cotnmon law of the Church ; for, by particular law, they may possess jurisdic- tion. Thus, it is certain that where, as we have seen, vicars- general ordinarily preside at trials in place of the bishop, the latter may for the hearing of certain kinds of causes — v.g., criminal causes — associate with his vicar-general one or more assessors, whose advice he is bound to follow. The assessors in this case would of course be associate judges, and not mere advisers.' 905. Who can appoint assessors? As a rule, any judge can appoint assessors for himself, whose right and duty it will be to sit by the judge when holding court, participate in all the proceedings, advising the judge, etc. The reason is, that no one is forbidden to take counsel of others. Hence, too, the vicar-general, in places where he acts as judge for the bishop, can select assessors for himself, unless the bishop has reserved the appointment to himself,'' 906. Can assessors be challenged as suspected ? They can, and if the judge does not admit the challenge, he can himself be objected to as suspected. The reason is, that by giving advice to the judge they naturally influence his de- cision, and thus become mstrumental in inflicting a grievance upon the party. Hence the party who has just cause for suspecting the assessor can object to his acting as assessor." 907. From these principles it will be seen that members of Commissions of Investigation in the United States (the same holds true of those in England) may be challenged when there is just cause for suspecting, v.g., that they are ' L. 5 ff. de Offic. adsess. (i. 22); L. i, C. h. t. (i. 51). s L. I ff. h. t. ; L. I, C. h. t. ^ Bouix, 1. c, p. 467. * Bouix, 1. c, p. 468. * Bouix, 1. c, p 469. 128 Organization of the Bishop's Court or Tribunal biased against the parties, or otherwise unfavorably disposed towards them. These Commissions are, in fact, established by the Holy See as the official advisory boards of bishops in criminal and disciplinary causes of ecclesiastics.' Hence the members of these bodies or judicial committees are expressly called assessors of the bishop." Their advice or report, sub- mitted to the bishop in the manner laid down by the Instruc- tion of the Propaganda,* forms part of the authentic records of the cause tried, and therefore has to be always inserted among the acts, and must have, as it is intended by the Holy See that it should have, the greatest weight both with the bishop and, in case of appeal, with the judge of appeal. If, therefore, it is allowed to challenge as suspected assessors who have no jurisdiction whatever, it seems certain that, a fortiori, members of our Commissions of Investigation who are clothed with jurisdiction for the hearing of the cause can be excepted to by parties who have just reasons for sus- pecting them. These grounds, however, of suspicion are not presumed, but must be proved, as we shall show. Art. IV. Collegiate form of the Bishop's Court — The Bishop's Court in the United States, as established by the S. C de Prop. Fide on July 20, 1878. 908. Can the bishop, by virtue of the general law of the Church, make his court or judicial tribunal consist of a col- lege of judges, — that is, of a number of judges, — who shall be bound to proceed collectively and decide the case by a majority of votes ? In other words, can he enact, for in- stance, that his court shall consist of his vicar-general and one or more assessors or associate judges, who shall, like the ' Instr. S. C. de Prop. Fid., 20 Julii, 1878, § Commissionis ita. * S. C. de P. F., Ad Dubia, § Ex quibus patet. * July 20, 1878, § 9, Quibus. for the Exercise of Judicial Power, also in the U.S. 129 vicar-general himself, have a decisive, not merely a consulta- tive vote ? He certainly can, as we have already said.' For as the bishop has the power, if he wishes, to preside at the trial and pass sentence in person, associate with himself, and that in all causes whatever, associate judges, having a de- cisive, not merely a consultative, vote, so he can evidently appoint such associate judges for his vicar-general,^ or other judge appointed by him,' In reality, the law of the Church not only permits but greatly favors such colleges or bodies of judges, on the ground that conclusions or decisions ar- rived at by several persons are of more weight and sound- ness than those reached by a single individual/ 909. As a matter of fact, the Holy See has in recent times set a praiseworthy example in this respect. For in 1 83 1 it enacted that in all the dioceses of the Pontifical States the court of the bishop for the adjudication of crimi- nal causes of ecclesiastics should consist of the ordinary and four other judges. In Rome the court of the vicariate or cardinal vicar-general of the Pope for the diocese of Rome is made up of the cardinal-vicar and four other prelates.^ 910. Present organization of tJie bishop's court in the United States. — We have, in the above lines, described the collegiate form of the bishop's court as authorized by the common law of the Church. We now come to our own ecclesiastical courts. They, too, have a collegiate form for the hearing of the cause, exclusive of final sentence. But this collegiate organization differs in certain respects from that pointed out above. We shall, therefore, briefly note these differences. The Second Plenary Council of Baltimore^ enacted that the bishop's court in the United States for the adjudication of criminal causes should consist of the bishop or his vicar- general, and two priests selected by him. The S. C. de Prop- ' Supra, n. 904. * At least, for the hearing of a certain class of causes. * Molitor, 1. c, p. 269. ^ Cap. 21, de Off. jud. del. (i. 29). ^ Bizzarri, Collectanea, pp. 192, 193; Bouix, 1. c, p. 470. * N. 77. 1 30 Organization of the Bishops Court or Tribunal Uganda, in its admirable Instruction of July 20, 1878, changed the Baltimore decree so far as the organization and mode of procedure of the bishop's court are concerned, and or- dained that the bishop's court in the United States for the hearing of criminal and disciplinary causes of ecclesiastics should, as we have seen,' consist of five, or, where so many cannot be had, at least of three priests, who shall constitute a Commission of Investigation. They are appointed by the bishop 1)1 and with the advice of the synod ; that is to say, the bishop, in appointing them, is indeed bound, and that on pain of nullity of the appointment, to consult the clergy assembled in synod, but he is not bound to follow this advice. The members once appointed hold office till the next synod, when they may be confirmed or others appointed in their stead." If a vacancy should occur in the interim, the bishop can fill it without the advice of the diocesan synod, though it is becoming that he should consult the other mem- bers of the Commission." To this Commission belongs entirely and exclusively the trial or hearing of the cause which falls under their jurisdiction or competence. The mode in which the trial or judicial proceedings are to be conducted before these Commissions is outlined in the Instruction of the Propaganda establishing these judicial colleges or councils. After the members of the latter bodies have fully and thoroughly investigated or tried the cause in the manner prescribed by said Instruction, and obtained all possible light on the subject, and received all the available testimony, they enter into consultation in order to discuss the case and exchange views with each other. If upon con- sultation it is found that a majority of the members beheve the facts to be sufficiently proven, each member writes out his opinion in extenso, together with the reasons upon which ' Supra, n. 648. ' Supra, n. 407. Mnstr. S. C. de Prop. Fide, 20 Julii, 1878, § Electi Consiliarii; S. C. de P. F., Ad Dubia, § 2 Electio Consillariorium; ib., § Extra synodum. for the Exercise of Judicial Power, also in the U.S. 131 it is based." These opinions, together with all the other records of the case, are then delivered to the bishop, to enable him to pass final sentence. Consequently the bishop remains the sole judge in the proper sense of the term, the final decision of the cause being reserved exclusively to him. 911. The Commissioners may be said to be both auditors and assessors of the bishop. Auditors, because they not merely advise the bishop or the judge, but are entrusted with the entire conduct of the trial or hearing of the cause, and have consequently jurisdiction for the hearing of the cause. Assessors, because their opinion or verdict, as sub- mitted to the bishop, has not the force of a decision of the cause, but merely of advice to the bishop.* Art. V. Diocesan Promoter and Advocate {Promotor fiscalis). 912. Another official usually attached to the bishop's court is called the promoter or procurator of the fisc {pro- motor, or procurator or advocatiis fiscalis). This official is called in our secular courts prosecuting attorney, city counsel, district and state attorney, attorney-general. By the ecclesiastical fisc {fiscus ecclesiae) we here mean the property, things, and rights relating to the public good and interest of the Church. As the secular fisc is a secular cor- poration, so the ecclesiastical fisc — v.g., the diocese as such — is an ecclesiastical corporation or moral person, having, in general, all the rights of physical persons. Hence, we say, the ecclesiastical fisc or the diocese enters into engagements, makes contracts, sells, buys, pleads and is impleaded, etc. But it is manifest that a moral person, or to speak more pre- cisely, an ecclesiastical juridical person, cannot act of itself, ' Instr. cit., § 9, Quibus omnibus. ' S. C. de P. F., Ad Dubia, § 3 Votum a Consilio; ib., § Ex quibus. 132 Organization of the Bishop's Court or Tribunal and is therefore unable personally to institute judicial pro- ceedings or act as plaintiff or defendant to defend and secure its rights. Hence it is necessary that somebody be ap- pointed whose duty it shall be to act for the fisc or diocese in judicial proceedings. The person appointed to do so is called the fiscal, or, in the case of a diocese, diocesan pro- moter. 913. Hence a promoter or prosecuting attorney of the bishop's court is an official lawfully appointed to guard and promote the rights of the diocese or diocesan fisc, and act as plaintiff or defendant in its stead.' As will be seen from this definition, the duties of the diocesan attorney or pro- moter consist chiefly, i, in prosecuting criminal offences before the ecclesiastical tribunal, or bishop's court (in the United States, before Commissions of Investigation); for the good of the Church and of the diocese evidently requires that crimes shall be punished ; 2, in acting as the representa- tive of the diocese, and therefore as plaintiff or defendant in judicial proceedings, where the rights, prerogatives, property, etc., of the diocese are involved.'' Consequently, he is not only the prosecuting attorney, but in general the procurator or attorney for the diocese in all judicial proceedings or liti- gious matters. 914. By whom and how is the diocesan promoter ap- pointed ? He can certainly be appointed by the bishop. But, in case no appointment has been made by the bishop, or the appointee of the bishop is hindered from discharging his office, it would seem that the vicar-generai (when acting as judge), or other judge delegated by the bishop, can ap- point a promoter. The reason is, that, as a rule, the judge should provide a procurator or attorney or advocate for a party that is in need of one, and cannot himself procure one. Now, this is plainly the case with the ecclesiastical ' Leur., For. Eccl., 1. 3, t. 21, q. 460, n. i. ' Bouix, 1. c, p. 471; Craiss., n. 5770. for the Exercise of Judicial Power, also in the U.S. 133 fisc or diocese. The promoter is removable ad nutum. When about to enter upon his office, he must take an oath to perform his duties faithfully.' 915. Q. Is it obligatory, by the common law of the Church, to appoint a diocesan attorney or fiscal promoter for the bishop's court ? A. It would seem so. For the Roman law prescribes that in all proceedings against a defendant the fiscal pro- moter shall be cited, and that on pain of nullity of sentence which may be passed on the defendant." The Roman law, therefore, takes it for granted that these attorneys must be appointed. As the sacred canons are silent on this head, and do not enact the contrary, this Roman or civil law must be regarded as adopted by the canon law. For it is a rule of canon law, that where the latter is silent, or does not expressly enjoin the contrary, the Roman or civil law holds also in the eccclesiastical forum. Hence Pope Lucius III. says : " Sicut leges non dedignantur sacros canones imitari, ita et sacrorum statuta canonum principum constitutionibus adjuvantur." ^ 916. Apart from this law, it is not absolutely necessary that a promoter should be appointed.* We say, absolutely; for, without this official, it were evidently very difficult to observe the prescribed and customary formalities which must, as a rule, be observed in the trial or hearing of crimi- nal causes." Of course, where the bishop is allowed to pro- ceed extrajudicially or ex informata co7tscientia, no diocesan attorney is needed, as no judicial formalities need be ob- served. Sometimes the number of causes is so great, that the diocesan promoter is unable to attend to them alone and unaided. In this case he can associate an ecclesiastical ad- vocate with himself, who is on that account called fiscal ' L. 5, C. (x. 10). » Ex 1. I. C. de Sent. adv. fisc. (x. 9); Bouix, 1. c, p. 475. ^ Cap. I (v. 32); Bouix, 1. c, p. 19. ■» Cf. Molitor, 1. c, p. 234. ' Craiss., n. 5771. 1 34 Organization of the Bishop's Court or Tribunal advocate [advocatiis fiscalis). It depends upon the bishop, however, whether the promoter can select him at his discre- tion, or only from among the number of those approved for this office.' Art. VI. Diocesan Promoter in the United States, under the Instruction of the S. C. de P. F., July 20, 1878. 917. This Instruction of the Propaganda, which pre- scribes the mode of procedure in criminal and disciplinary causes of ecclesiastics to be followed by the ecclesiastical courts of the United States, requires that when a matter or cause has been or is to be brought before the Commission of Investigation, the bishop shall depute his vicar-general, or some other priest, to draw up a full statement of the case, supported by proofs, against the defendant or accused, and read it before the Commission, and be subject to cross-exam- ination by the latter body. The words of the Instruction are : " Re ad Consilium delata, episcopus vicario suo generali, vel alii sacerdoti ad hoc ab ipso deputato commit- tat, ut relationem causae in scriptis conficiat, cum exposi- tione investigationis eo usque peractae, et circumstantiarum quae causam vel ejusdem demonstrationem specialiter affi- ciant." ' And again : '' Relatio causae legatur coram Con- silio ab episcopi officiali, qui etiam ad interpellationes respon- debit a praeside vel ab aliis Consiliariis per praesidem faciendas ad uberiorem rei notitiam assequendam." ' It will therefore be seen that this official of the bishop takes the place of the diocesan promoter spoken of in the preceding article. His status, therefore, before the Commission of In- vestigation is not that of an advocate, or even judge, but simply of plaintiff or defendant for the diocese. He is therefore, placed on the same footing with the accused or defendant, so far as judicial proceedings are concerned. ' Bouix, 1. c, p. 476. * Instr. clt., § 2, Re ad. ' lb., § 6, Relatio causae. for the Exercise of Judicial Power, also in the U. S. 135 Art. VII. Notaries or Chancellors — Secretary of Commissions of Investi- gation in the Ufiited States. {De Notariis et Cancellariis). 918. A notary {notarius, acinar ins, tabellio, protocollista, eancellarius) is a person appointed by public authority in order that acts written by him may have public authority, or be worthy of belief.' Notaries are either ecclesiastical or secular, according as they are appointed by the ecclesiastical or the secular power. Ecclesiastical notaries are again divided into apostolic {notarii apostolici) — that is, those ap- pointed by the Holy See — and episcopal — or those named by bishops. Apostolic notaries are subdivided into notaries simply, and prothonotaries.'' 919. Can ecclesiastics and regulars be appointed notaries? By the written common law of the Church, all secular ecclesiastics who are in sacred orders^ — nay, according to the more probable opinion, even those who are merely in minor orders, and without a benefice — and all regulars are forbidden to act as notaries, not only in secular courts and causes, but also, according to the more probable opinion, in ecclesiastical courts and causes," except {a) in causes of faith,* {b) and where the notary is appointed by the Holy See, such appointment being equivalent to a derogation of the above written law of the Church.* We say, by the written common law ; for the general practice or custom makes it lawful, also at present, to appoint ecclesiastics, even though in sacred orders, notaries, though only for acts of the ecclesiastical au- thority, and not for secular courts or matters. In fact, not only in the United States, but all over the world, the chan- ' Bouix, 1. c, p. 479. "^ Cf. supra, n. 526. ' Cap. 8, Ne cleric, vel monach. (iii. 50). "* lb. Glossa, v. clericis in sacris. ^ Cap. II, de Haeret. in 6° (v. 2). ® Bouix, I. c, p. 482-487. o 6 Organization of the Bishop's Court or Tribunal cellors of bishops are ecclesiastics, nay, usually priests. In truth, considering the present state of society, it seems far more becoming that ecclesiastics, not laymen, should be appointed notaries for ecclesiastical matters and in eccle- siastical courts.' 920. By whom are notaries for ecclesiastical causes to be appointed ? Strictly speaking, and ex jure propria, only by the Pope. For the Pope alone can enact something which is altogether contrary to the general law of the Church. Now, the enactment that the writing of one man — the notary — shall of itself constitute full and complete evi- dence, is certainly wholly opposed to all law." However, by virtue of custom, based upon the consent, at least tacit, of the Sovereign Pontiff, notaries can be appointed also by bishops — nay, even by generals and provincials of religious orders for the criminal causes of religious subject to them.^ Observe, what has been just said with regard to the appointment of notaries {iiotarii) applies also to chancellors {cancellarii) or secretaries {actuarii). For the writings or instruments signed or attested by these chancellors or secretaries have the same force and authority as those of notaries proper." 921. Can lay notaries act validly in ecclesiastical and spiritual causes ? We distinguish lay notaries who are appointed, or at least admitted, as notaries in the ecclesias- tical courts, and for spiritual or ecclesiastical matters, by the ecclesiastical authorities, and those who are appointed solely by the secular power. As to notaries of the first kind, there can be no difficulty. For it is certain that laymen can be, nay, are sometimes laudably appointed notaries by the bishop for ecclesiastical matters and his ecclesiastical court." In regard to notaries of the second class, it seems, consid- ering merely the rigor of the law, that they cannot validly exercise the office of notary in ecclesiastical causes or matters. ' lb., p. 493. * Bouix, 1. c, p. 497. * Ferraris, v. notarius, n. 21. * Bouix, 1. c, pp. 481, 500. * Bouix, 1. c, p. 493. for the Exercise of Judicial Pozver, also in the U. S. 137 The reason is, that the secular power has no jurisdiction over such causes or matters, and consequently cannot make a law whereby instruments made by notaries created solely by itself shall have full authority also in the eyes of eccle- siastical judges. Such a law would be an act of ecclesiastical jurisdiction, and therefore a usurpation on the part of the secular ruler. 922. We said, first, considering merely the rigor of the law ; for, as a rule, these notaries may at least, by virtue of gen- eral custom, act validly as notaries, also in the ecclesiastical forum, and in ecclesiastical matters, until prohibited by the bishop from' doing so. This seems to follow manifestly from the following decree of the Council of Trent : * " Whereas the unskilfulness of notaries causes very many injuries, . . . the bishop . . . may by actual examination search into the competency of all notaries, even though created by apostolic, imperial, or royal authority ; and if such notaries be found incompetent, ... he may forbid them ... to exercise that office in ecclesiastical and spiritual affairs." Here the Council of Trent plainly takes it for granted that notaries created solely by the secular power can validly exercise their office also in ecclesiastical matters. For the Council authorizes bishops to forbid them to act as notaries in eccle- siastical affairs only when they are found incompetent or unworthy.* We said, secondly, as a rule ; since causes of canonization are excepted. For these latter causes, notaries created by the Apostolic See are absolutely required. 923. It happens not unfrequently in this country, that ecclesiastics have instruments or documents relating to ecclesiastical causes and affairs drawn up, or certified by a notary public or other official appointed solely by the civil power. Here it is to be observed that, where this is done for just cause, — v.g., where no ecclesiastical notary is at hand or ^ Sess, 22, c. II, de Ref. ' Bouix, 1. c, p. 504. 138 Organization of the Bishop's Court or Tribunal accessible,— a notary public who is a Catholic should as far as possible be employed. For the custom above mentioned, authorizing lay notaries appointed solely by the civil power to act as notaries also in ecclesiastical matters, seems to have had reference only to Catholic notaries appointed by Catholic princes at a period when the Church and state were in mutual concord and harmony.' Observe, also, that an instrument validly drawn up by a notary is of full authority — i.e.^ constitutes of itself full proof — not only in the place where it was made, but everywhere." 924. Q. Is the ecclesiastical judge bound to make use of a notary, chancellor, or secretary, both in ordinary or solemn, and in extraordinar}^ or summary, trials or judicial proceedings ? A. He is. This is expressly ordained in the decretal Quoniam issued by Pope Innocent III., in the General Coun- cil of the Lateran, held in 121 5. His words are: " Statuimus ut tarn in ordinario judicio, quam extraordinario, judex semper adhibeat aut publicam (si potest habere) personam, aut duos viros idoneos, qui fideliter universa judicii acta conscribant." ' This law is still in force, having never been revoked. Hence a secretary or notary, or where he cannot be had, two trustworthy persons, must intervene at all judicial proceedings or investigations, even though of the simplest kind,* of ecclesiastical courts or tribunals, and con- sequently also at trials or proceedings before Commissions of Investigation in the United States and England. This holds so strictly, that the records or minutes or acts of the proceedings have no authority, and are not worthy of belief, even though they are signed or attested by the judge, un- less they are written and signed by a secretary, or, in his absence, two trustworthy persons. Thus the Cap. Cum a ' Cf. Bouix, 1. c, p. 505. ' lb., p. 508. 3 Cap. Quoniam 11, de Probat. (ii. 19). * Miinchen, 1. c, vol. i., pp. 65, 77. for the Exercise of Jitdkial Pozuer, also in the U. S. 139 nobis says : " Districtius inhibemus, ne unius judicis, quan- taecunque fuerit auctoritatis, verbo credatur." ' 925. The object of this law, therefore, is to have an authentic and reliable record of what has taken place, and that in the interest of all the parties concerned — nameh', the plaintiff, defendant, judge, etc. Hence it is the duty of the secretary to take accurate and faithful minutes of the entire proceedings — namely, of citations ; of dilatory mo- tions, or delays asked and granted ; of challenges against the judge ; of exceptions taken by the parties ; of the com- plaint or accusation of the plaintiff, and the answer of the defendant ; of interrogations or positions, or specifications of charges ; of the testimony of the witnesses ; of the produc- tion of instruments, etc., etc. All this is expressly set forth in the above decretal of Pope Innocent HI. The latter says : " Fidehter universa judicii acta conscribant ; videlicet citationes, dilationes, recusationes, exceptiones, petitiones, responsiones, interrogationes, confessiones, testium deposi- tiones, instrumentorum productiones, interlocutiones, ap- pellationes, renunciationes, conclusiones, et caetera quae oc- currerint, competenti ordine canscribenda, loca designando, tempora et personas." ' The notary or secretary should, on being appointed, take an oath, though not on pain of the nuUity of his acts, to discharge the duties of his office faith- fully. Art VIII. Judicial Messengers {Nuntii judiciales). 926. As in secular, so also in ecclesiastical courts, mes- sengers {pedelli, cursorcs, apparitores ; in our secular courts they are called constables, marshals, sheriffs, etc.) are offi- cially employed to execute the orders of the judge or court, to summon the parties or litigants to trial — i.e., sers^e the ' Cap. 28, de Test. (ii. 20). * Cap. 11, de Prob. cit. ; ib. Glossa, v. citationes, etc. 140 Organization of the Bishop's Court, etc. citation on the parties, deliver the messages of the court, etc' In the United States the citation of the defendant or accused is made by letter, which may be sent by mail or messenger." By having such a letter, when sent by mail, registered, a proof is at once had of its delivery. For the recipient of a registered letter is obliged to sign and give to the mail carrier or post-office official a receipt of the delivery of the letter, which receipt is transmitted to the sender 'Schmalzg., 1. ii., t. i, n. 14. « Instr. S. C. de P. F., 20 Jul.. 1878, § 4, Per litteras. CHAPTER II. OF THE archbishop's COURT OF JUSTICE, ALSO IN THE UNITED STATES. {De Curia archiepiscopali^ 927. Organization or personnel of the archbishop' s court, where the common law of the Church obtains. — Besides the episcopal jurisdiction which an archbishop has in his own diocese, he possesses also, as we have shown elsewhere,' a metropolitan jurisdiction over his suffragan bishops and their subjects. For the exercise of this metropolitan jurisdiction archbishops usually establislra special tribunal, distinct from that charged with the exercise of the jurisdiction of the archbishop's own diocese. However, though this metropolitan tribunal is generally distinct from the diocesan court or tribunal proper of the archbishop, it is, nevertheless, in form and construc- tion similar to it. In other words, it is composed of the archbishop as primary ordinary judge ; of his vicar-general as vice-judge — that is, secondary ordinary judge ; of a fiscal promoter, a secretary, and the other customary officials." 928. Present organization of the archbishop' s court in the United States. — At present, according to the recent Instruc- tion of the S. C. de P. F. of July 20, 1878, the archbishop's court with us, for the hearing and adjudication of criminal and disciplinary causes of ecclesiastics appealed to it from a diocese of the province, is formed or organized in the same manner as the archbishop's diocesan court for these causes. Hence this metropolitan tribunal is composed of the arch- bishop or his vicar-general as judge, and of the Commission of Investigation as a board of assessors to whom belongs ' Supra, n. 530 sq. * Bouix, 1. c, p. 516. 142 Of the Archbishop s Court of yustice^ exclusively the trial or investigation of the case appealed.' From the principles above laid down, it is evident that the metropolitan may establish two distinct Commissions of In- vestigation — one for the hearing of causes of his own diocese, another for the adjudication of causes appealed to him from his province. 929.. We have already seen that it is allowed to appeal to the metropolitan both from judicial and extrajudicial griev- ances ; that the archbishop may hear these appeals either in person or through his vicar-general or other person ; that in Catholic countries he does so, as a rule, not personally, but through his vicar-general. Of course, archbishops in the United States may also allow their vicars-general to act for them in this matter, — that is, to receive appeals and convene the Commission of Investigation, by whom the appeal is heard or tried, — and upon the conclusion of the investigation or hearing of the appeal by the Commission, pass sentence or decide the appeal. 930. Hence it may be asked : Can the archbishop appoint one and the same vicar-general to exercise diocesan as well as metropolitan jurisdiction ? We reply in the affirmative ; nay, unless the archbishop determines otherwise, the vicar- general appointed by him is to be considered as vested both with the diocesan and metropolitan jurisdiction. When, however, he appoints one vicar-general for the exercise of the diocesan and another for that of the metropolitan juris- diction, it may be somewhat disputed whether either of them can be regarded as vicar-general, in the proper sense of the term, or whether each in the case is not simply a delegate. The reason is, that neither of them would seem to have that universal jurisdiction, morally speaking, which a vicar-general ought to possess." Hence the safer course for the archbishop will be, not to limit the jurisdiction of his ' Cf. Instr., S. C. de P. F., 20 Julii, 1878, § 17, Si vero. « Supra, n. 620. also in the United States. 143 vicars-general to diocesan or metropolitan matters, especially as he can always, without restricting their jurisdiction, order the one to confine himself to diocesan, the other to metro- politan, causes or matters.' 931. When is it allowed to appeal from the suffragan to the metropolitan, and what are the effects of such an appeal? Both questions have already been sufficiently answered by us : the first in Nos. 444, 449, 452, 531 ; the second on pages 426 and 427 of the first volume of this work. ^ Craiss., n. 5791. CHAPTER III. OF THE ORDINARY (SOLEMN OR FORMAL) CANONICAL TRIAL IN CRIMINAL CAUSES. {Processus Criminalis Ordinarius.) 932. By an ordinary or formal canonical criminal trial {processus ordinarius, solemnis, Judicium plenarium) is meant that mode of procedure for the punishment of crime where all the prescribed formalities, both essential and non-essential in the sense above explained,' are accurately observed." SECTION I. Various Modes of beginning Canonical Criminal Trials. 933. A formal canonical criminal trial can be initiated or take place in four ways: i, by way of accusation; 2, of denunciation; 3, of inquiry;' 4, and of exception. Let us briefly explain each of these modes. Art. I. Mode of procedure by way of accusation {Processus per viatn accusationis). 934. This method consists in this, that a person charges another with a crime before the competent judge and in a lawful manner, and assumes the obligation of proving his charge, and that for the purpose of having the offender pun- ' Supra, n. 692, 693. * lb., n. 698; Craiss., n. 5789. " Cap. 16, de Acous. (v. .x)- Cap. 31, de Simon, (v. 3). Canonical Trial in Criminal Causes. 145 ished, and thus satisfying the demands of justice.' Accord- ing to the positive law of the Church, the accusation or crimi- nal charge has to be made in writing. We s?Ly, positive law ; for, by custom to the contrary, it can be made also orally, at the present day, provided it be taken down in writing by a public notary or official." 935. The charge {libelhis) should be properly drawn up — that is, it should express the names of the judge before whom the accusation is made, of the accuser and accused, the nature of the crime, the place, year, and month of its commission.' Moreover, by the positive common law of the Church, it should be signed by the accuser, who by this sig- nature pledges himself to prove the charges, or if he fails to do so, to suffer the same punishment {poena talionis) which the accused would have incurred had he been found guilty.' Of course this poena talionis or retaliative punishment was" not incurred unless it appeared that the accuser had falsely and maliciously made the accusation. We said, by the positive common law of the Church ; for it is the opinion of most canon- ists that the law of the poena talionis has been, at least gen- erally speaking, abrogated by custom to the contrary, and is no longer in force, at least generally.* 936. It will be observed that the procedure by way of accusation, as above described, was surrounded with many difficulties. The role of an accuser was a perilous one, owing to the fact that he was bound under the pain of retalia- tion {poena talionis) to prove his charge. Hence, few were found willing to undertake the dangerous task of an accuser; and those who did undertake it acted mostly from feelings 1 Reiff., 1. 5, t. I, n. 5; Schmalzg., 1. 5, t. i, n. 21; Craiss., n. 5800. * Bouix, de Jud., vol. ii., p. 5. ^ L. Libellorum 3 ff. de Accus. et inscript. (48. 2). * lb., § 2 item; L. 7 ff. eod. tit.; Cap. 16, de Accus. (v. i). 5 Schmalzg., 1. 2, t. i, n. 23; Stremler, 1. c, p. 83; Craiss., n. 5802, of. tamen Bouix, 1. c, p. 33. 146 Of the Ordinary Canonical Trial or motives of revenge or private interest. Thus it came to pass that many crimes remained unpunished. 937. For these and other reasons of a similar kind, Pope Innocent III., the greatest canonist and lawgiver of his age, established the modes of procedure by way of denunciation and inquiry, as ordinary modes of procedures, or as trials which should be ordinarily made use of. We say, as ordinary modes; for before the time of this Pope these modes had indeed existed, but only as extraordinary modes of proce- dure. Yet the mode of procedure by way of accusation was not abolished by this Pontiff. For, in his celebrated decretal Qualiter ct quando^ he expressly enumerates this method, as approved and lawful. Nevertheless, it soon fell into almost total disuse ; so that at present the usual mode of procedure is by way of inquiry. 938. Hence it may be asked whether the mode of pro- cedure by way of accusation is unlawful at present ? We. think not, at least so far as its substance is concerned. For it has never been abolished by any positive law, or by custom. Not by any positive law ; for it is certain that no such law exists. Nor by custom to the contrary. For the custom above referred to — namely, the disuse into which the pro- cedure by accusation has fallen — is simply one of preference for the trial by way of inquisition, not one reprobating that by way of accusation. Hence this latter mode may still be resorted to, especially where the accuser has an interest in the punishment of the delinquent; nay, as Bouix remarks, there may be cases where it is far better and more effective than its more favored rival — the trial by inquiry.* 939. The effects of a criminal charge or accusation may be viewed chiefly so far as they concern either the judge or the accused. The judge, upon receiving a criminal charge, can and should proceed to take cognizance of the case. The ' Cap. 24, de Ace. (v. i). ' Bouix, 1. c, vol. ii., p. 30; Stremler, 1. c, p. 84. in Criminal Causes. 147 effects upon the accused are the same as in the case of pro- cedure by way of inquiry or denunciation, which will be described farther on, 940. Can a person, in the ecclesiastical court, be again accused of and tried for a crime for which he has been once already tried, and either found guilty and condemned or not? He cannot, generally speaking.' The law of the Church herein but imitates the clemency of God, who, once He has forgiven the sin, does not allow it to be revived again for punishment.'' We said, generally speaking ; since there are some exceptions, for which see Reiffenstuel, 1. c, n. 42 sq. 941. Can a criminal action or accusation be extinguished in the ecclesiastical court by prescription ? In other words : Is it forbidden to accuse or try a person for a crime after a certain time has elapsed from the time the offence was com- mitted? It is, by the Roman law, adopted by the sacred canons. Now, by the Roman law, no person could be accused of or tried for sins of the flesh, five years after the offence was committed; ' nor for other crimes, twenty years after the offence was perpetrated.* Custom, hov/ever, does not at present observe this law, and seems to allow of a crime being prosecuted in ecclesiastical courts at any time/ Art. II, Mode of procedure, or beginning criminal trials, by way of denunciation {^Processus per viatn denunciationis). 942. By denunciation, we here understand the manifesta- tion of a crime made to the superior by a person who does not assume the obligation of proving the charge. The latter ' Cap. 6, de Accus. ; Glossa, ib. ; L. 6 ff. Nautae, § 4 (4. 9). * Can. 23, 29. q. 4; Reiff., lib. v., t. i, n. 41. 3 L. 29, § 5 ff. Ad leg. Jul. de adult. (48. 5). ■* L. 12, C. ad leg. Corn, de falsis. ^ Schmalzg., 1. 5, tit. I, n. 121. 148 Of the Ordinary Canonical Trial clause shows how denunciation differs from accusation. A person who denounces another may have two objects in view : first, to have the offender simply reprimanded by the superior as a father ; second, to have him punished by the superior in the capacity of ecclesiastical judge. Hence there are two kinds of denunciation — paternal {denunciatio evangelica, fraterna, etc.) and judicial {denunciatio judicialis). The denunciation is evangelical, when the delinquent, having as a rule been charitably admonished, but without effect, is denounced to the superior as a father, not indeed to be punished, in the strict sense of the word, but to be corrected paternally.' 943. Judicial denunciation, which is here chiefly under discussion, is that which is made to the superior or bishop in his capacity of ecclesiastical judge, in order that he may proceed against the offender judicially, and punish him.' This judicial denunciation, therefore, serves as a basis for judicial proceedings against the offender, while the evangeli- cal cannot, generally speaking, serve as such basis. 944. Q. What crimes can be judicially denounced ? A. I. Those whi'ch common fame reports as having been committed, and that even when the person who makes the denunciation is not able to suggest or indicate to the judge any other proofs of the guilt. The reason is, that common fame is of itself sufficient to authorize the judge to inquire into the guilt of the alleged delinquent — i.e., to begin the process of inquiry against him.' 2. It is controverted whether an occult crime, even though provable, can, gen- erally speaking, be judicially denounced. Those who hold the affirmative contend that the publicity of the crime, or defamation, is required, only when the judge proceeds by way of inquiry, and that ex mero officio, but not when he pro- ' Soglia, vol. ii., p. 299, ed. Vecch. * Reiff., 1. c, n. 83; Schmalzg., 1. c, n. 151. * Bouix, 1. c, p. 44. in Criminal Causes. 149 ceeds upon a denunciation, or at the instance of another person. For, in the latter case, the person denouncing takes the place of the accuser or of common fame.' Those wno hold the negative, say that the judicial denunciation is not, strictly speaking, a distinct and separate mode of proce- dure, but serves rather as a means, or an occasion for begin- ning proceedings by way of inquiry ; that, consequently, as defamation is necessary for the process of inquiry, so also it is requisite for the trial by denunciation. Thus the Glossa'^ expressly says: "Si vero procedat judex ad petitionem alicujusprocurantisinquisitionem . . . cognoscet prius judex utrum " (denuntiatus) " sit infamatus, et postea procedet super iis quae denuntiata sunt ; alias non procedat, nisi primo constet quod infamatus sit.'' . . . Hence, say the advo- cates of this opinion, the ecclesiastical judge cannot, as a rule, proceed judicially against a person, upon a mere judi- cial denunciation, unless there exists also defamation. Bouix ' holds that this applies even when the diocesan promoter, or prosecuting official, makes the denunciation or complaint. Of the two above opinions, the negative seems the safer.* However, whether the first or second opinion is held, it is certain that in some few cases an occult crime can be de- nounced — namely, where it would inflict a grave injury upon a community or a third party.* 3. It is certain that a crime which is occult, and at the same time not provable, cannot, as a rule, be judicially denounced. The reason is that the denunciation in the case would be worse than useless. For it would simply result in the defamation of the accused, while the judge could not condemn him, as in the supposition the crime could not be proved. 945. How should the judicial denunciation be made? Nearly all the formalities prescribed for the trial by way of ' Reiff., 1. c, n. 88; Schmalzg., 1. c, n. 157. ' In cap. 24, de Ace, v. ad inquirendum. ** L. c, p. 79. * Cf. Miinchen, 1. c, vol. i., p. 489, n. 6, 7. * Reiff., 1. c, n. 8g. 150 Of the Ordinary Canonical Trial accusation, must be observed and that on pain of nullity. Hence, as in the trial or process by way of accusation, so in the trial by way of denunciation, it is necessary : i. That the denunciation be made in writing, which should contain the name of the judge, of the person denouncing, and the person denounced; the nature of the offence; the place and time where and when it was committed ; the day when the denunciation was made. 2. That the person making the denunciation name the witnesses, and point out or indicate to the judge the other proofs — v.g., instruments — in his pos- session, so as to enable him to determine whether the denun- ciation can be sustained or not, and, consequently, whether it should be received or rejected. Here we see one of the differences between denunciation and accusation. In the trial by way of denunciation, the denouncer is not bound to prove his charges, but simpl}^ to indicate the proofs to the judge ; ' in the trial by way of accusation, the accuser must prove the charges. 946. Q. What are the chief effects of a judicial denuncia- tion, id) upon the judge, {U) the person denouncing, (r) and the person denounced ? A. I. As regards the judge, the effect is that he is bound to inquire into the alleged offence, and begin judicial pro- ceedings against the alleged offender — v.g., to summon and examine witnesses, etc.'^ 2. The denouncer, as we have seen, must name the witnesses and place the judge in pos- session of the other proofs alleged by him to exist. If he is convicted of having knowingly and maliciously made a false denunciation, he should be punished as a calumniator; nay, even where he merely fails to give proper proofs, even though no malice be shown, he is presiwied to be a calum- niator, and should be punished as such until he has proved his innocence.' Among the punishments which may, ac- ' Reiff., 1. c, n. 96. * Nov. 17, cap. 3; Reiff., 1. c, n. 125. 2 Cap. 2, de Calumn. (v. 2); ib. Glossa, v. Calumniandi. in Criminal Causes. 151 cording to law, be inflicted upon calumniators, the following is noteworthy, as being still in force: Where an ecclesiastic is found guilty of having calumniated another ecclesiastic, he should be deprived of his ecclesiastical office and bene- fice/ 947. 3. Generally speaking, the person denounced can- not, pending the denunciation, be promoted to ecclesiastical dignities or benefices, or to sacred orders."^ The same holds true of a person against whom judicial proceedings by way of accusation and inquiry are pending. The reason is that while a person is not considered guilty by the mere accusa- tion, or judicial denunciation or inquiry, he is nevertheless thereby lowered in the estimation of others. Observe that a judicial denunciation, accusation, or inquiry only hinders a person from being appointed to an office, etc., as stated, but not from the exercise or administration or jurisdiction of an office or dignity already possessed. Hence a bishop or other ecclesiastical superior, accused or denounced by his subjects or others, is not thereby, as a rule, prohibited from continuing the exercise of the powers of his office. We say, as a rule ; for the following two cases are excepted : I. The prelate or superior in the case cannot, pending the denunciation, exercise his jurisdiction with regard to the particular matter or cause which is the subject of the denun- ciation ; ' 2, A prelate denounced of wasting or dilapidating ecclesiastical goods or property, remains, pending the case, suspended from the administration of such property.* 948. Note. — At the present day judicial denunciation, in the proper sense of the word, is but rarely resorted to. In fact, private individuals now scarcely ever use the right given them by the sacred canons to make a judicial denunci- ation, except where their private or personal interests are ' Cap. I, de Calumn. ; Reiff., 1. v., t. 2, n. 4 sq. * Ex cap. 4, de Accus. ; Reiff., 1. v., t. i, n. 130 sq. 3 Ex cap. olim 26, de Accus. * Cap. 27, de Accus. ; Reiff., 1. c, n. 139. 152 Of the Ordinary Canonical Trial at stake. In all other circumstances, judicial denunciations proper are, at present, made only by the bishop's official or diocesan promoter/ 949. Of canonical or legal demmciation. — Some canonists divide denunciation into evangelical, judicial, and canonical. Strictly speaking, however, the canonical is a species of the judicial denunciation. For the sake of greater clearness, we shall here briefly explain what is meant by this canonical denunciation. By it we mean the denunciation which the sacred canons prescribe in certain cases for the common good." Now the law of the Church imposes the obligation of denouncing chiefly : i. Impediments to marriages, to the reception of sacred orders, to the promotion to ecclesiastical dignities and benefices. 2. Heretics and apostates ; those who aid and abet them, or read, keep, or sell their works. 3. Confessors who demand of their penitents the name of the accomplice.^ 4. Confessarios soUicitantes ad turpia occasione vel praetextu confessionis.* 5. Members of secret societies. 6. Bishops and other superiors, parish priests, etc., who are guilty of excess, or maladministration of their office. The reason is that the common good requires that unworthy superiors shall be corrected, and, if obstinate, re- moved from their office. However, not all are indiscrimi- nately entitled or bound to denounce delinquent superiors, but only those who are directly concerned — that is, the sub- jects.* Thus the right as well as duty of reporting the bishop's excesses to Rome belongs only to his ecclesiastics ; that of informing on delinquent rectors of congregations, to these congregations." 950. From the above cases it will be seen that the canoni- cal denunciation is established for the purpose of averting ' Stremler, 1. c, pp. 93, 106. 'Stremler, 1. c, p. 97. 'Const. Apostolici, Bened. XIV. ^Bened. XIV., Const., i Jun., 1741. * Can. 45, 46, 47, 48, Caus. 2, q. 7. * Schmalzg., 1. c, n. 166. in Criminal Causes. 153 spiritual injury from a community or private individual.' However, as Stremler" observes, the obligation of making the denunciation in some of the above cases can scarcely be said to exist any longer. In fact, crimes committed against the Catholic Church have unhappily become so common, that it is well-nigh impossible for the Church to punish the offenders. We observe, moreover, with Stremler,^ that anony- mous denunciations should be rejected as calumnious, and utterly unworthy of belief/ Art. III. Process or Trial by way of Inquiry {^Processus per viam Inquisi- tionis). 95 1. The mode of procedure in criminal causes — which, as we have seen,^ is at present in use in ecclesiastical courts, even to the exclusion of the trial by accusation — is by wav of inquiry or investigation. Before the time of Pope Innocent III. this process was resorted to but rarely, and only in extraordinary cases. The ordinary way of procedure was by accusation. This learned Pope, as already intimated, brought the trial by way of inquiry into prominence, and from his time it began to be substituted for the trial by way of accusation. At the present day it has come to be the usual and commonly adopted mode of procedure in ecclesiastical courts.* The mode of procedure to be followed by our bishops in hearing and deciding criminal and disciplinary causes of ecclesiastics, as prescribed by the S. C. de Prop. Fide, July 20, 1878, is also by way of inquiry, and partakes to a considerable extent of the nature and properties of the canonical trial by way of inquiry. This is indicated by the ' Reiff., 1. c, n. 147. ' L. c, p. 102. ^ lb., p. 100. ■* S. C. I., 10 Martii, 1677; Ferraris, v. denunciatio, n. i et 50. " Supra, n. 937. « Schmalzg., 1. c, n. 172. 154 Of the Ordinary Canonical Trial very title of the Commissions established here by the Holy See. They are called Commissions of Investigation or Inquiry. 952. What then is here meant by inquiry iinquisitid) ? To inquire into, means, grammatically, to search into, investigate, examine into, and find out by careful examination, etc. In jurisprudence, it signifies the searching into a matter, not as done by everybody, but only \iy \kve. judge ; nay, it expresses not every act of investigation even of a judge, but only that which is made by him in erimijial matters — that is, for the purpose of discovering crimes and criminals.' Hence the inquiry or investigation, as here understood, is, speaking in general, the act of the bishop or ecclesiastical judge lawfully seeking to discover crimes or criminals.^ 953. There are three kinds of inquiry : A general, a special, and a mixed. The inquiry \s general {inquisitio gener- alis), when the ecclesiastical judge or superior inquires in general, and without naming any specific crime or criminal, whether either in his whole diocese or some part of it any crimes are committed, or the laws of the Church or statutes of the diocese violated ; special {inquisitio specialis), when both the crime and the criminal are specified — namel}', when the judge examines whether a certain person {^>.g., Peter) has committed a certain crime iv.g., slander) ; mixed {inquisitio mixta), when {ci) either the crime to be inquired into is speci- fied, but its author is uncertain and not specified — v.g., when the judge inquires thus: Who has committed this mur- der? {h) or vice versa, when the presumed offender is ex- pressed, but the offence not specified — v.g., if the inquiry is : Has Peter committed any crime or violated any law ?' Each of these kinds of inquiry may be paternal or judicial, accord- ing as its object is either simply the reformation of the offender or his punishment. ' Bouix, de Jud., vol. ii., p. 60. ' Reiff., I. 5, t. I, n. 149; Schmalzg., eod. n. 172. •Schmalzg., 1. c, n. 174 sq.; Stremler, 1. c, p. 138. in Criminal Causes. 155 954. Q. Can the ecclesiastical judge or superior proceed against any one by way of inquiry without previous ill-fame ? A. We premise: i. The inquiry is either general, or special, or mixed. 2. Again, the ecclesiastical superior or judge proceeds {a) either absolutely ex officio, or ex mero officio — that is, without being officially requested to do so by any one, thus acting at the same time as judge and plaintiff or prosecutor, {U) or ex officio indeed, but at the instance of a third party — namely, either of a private person or the pub- lic prosecutor. 3. Finally, the inquiry is either paternal or judicial.' 955. We now answer: i. The rule is that the superior or judge, when proceeding absolutely ex officio, cannot institute a special judicial inquiry against any one who has not been previously designated by public opinion, fame, or report, as the party guilty of the crime for which the inquiry is to be instituted.^ This is certain and beyond controversy, and fol- loAvs from the principles above laid down." This is proved from the decretal Inquisitionis 21, de Ace, where Pope Inno- cent III. expressly says: '' Ad haec respondemus nullum esse pro crimine, super quo aliqua non laborat infainia, sen clamosa insinuatio non praecesserit, propter dicta hujusmodi puniendum : quinimmo super hoc depositiones contra eum recipi non debere, cum inquisitio fieri debeat solummodo super illis, de quibus clamorcs aliqui praecesserunt." The same is clear also from the decretal Qualiter et qnando,* issued by the same Pope, in the Lateran Council held in 1216. This decretal says : " Sicut accusationem legitima debet praecedere inscriptio, sic et . . . inquisitionem clamosa in- sinuatio praevenireT 956. This holds so true, that, unless a previous public re- port exists of the guilt, not even the swo^n testimony of two ' Bouix, I. c, p. 61. ' Cap. 21 et 24, de Ace; Schmalzg., 1. 5, t. i, n. 196; Reiff., I. c, n. 173. ^ Supra, n. 944. ■» Cap. 24, de Ace. ; cf. cap. 19, de Ace. (v. i). ^5^ Of the Ordinary Canonical Trial or more witnesses, who depose that they saw the party com- mit the crime, suffices to authorize the judge to proceed to a special judicial inquir}- against any one.' The reason is, that the crime in the case, being known only to two or three, is still occult; and consequently should not be made public by the inquiry. Hence it is necessary that the report of a crime committed by a person be diffused through the greater part of the neighborhood or community in which the delinquent lives." In fact, the ecclesiastical judge should not proceed to the punishment of crimes, save upon public knowledge or information. Now, the knowledge of a crime, which is neither derived from common fame, nor something equivalent to it, is not public knowledge. Therefore, etc. Again, a person could justly complain that an injury was done him if he were subjected to such inquiry without any previous current report of his alleged guilt. For by such inquiry he would come to be suspected of crime, and grievously suffer in his reputation or good name.' 957. We said above,* the rule is ; for there are certain exceptions, as appears from the sacred canons and the com- mon opinion of canonists. The following are the exceptions — that is, the cases — where no previous ill-fame is required for a special judicial inquiry: i. When a person has con- fessed his crime in court." 2. When the crime has been committed in court — v.g., if a witness makes a false statement before the judge. Observe that these two cases can scarcely be said to be exceptions to the rule given. For the occult crime in the case becomes notorious, notorietate juris, from the very fact of its being thus confessed or committed in open court.' 3. In crimes of heresy, apostasy, or other very great crimes which are very injurious to the common welfare of the faithful. In these crimes the ecclesiastical judge can ' Cap. 21, de Accus. ; cap. 24, de Ace; ib. Glossa, v. ad inquirendum. « Schmalzg., 1. c, n. 197. * lb., n. 196. * Supra, n. 955. * Cap. I, in 6° (v. i). • Bouix, 1. c, p. 70. in Criminal Cmises. 157 proceed to a special judicial inquiry when there are grave suspicions, even though there be no pubhc report. 4. When the crime tends directly to inflicting an injury upon a third party, whether it be a private individual or a community. 5. When there are very strong indications of guilt — v.g., when a person keeps up a familiar intercourse with the criminals who are known as such, or has fled to avoid appearing in court. For these and similar acts take the place of public report. 6. When the person against whom the inquiry is made is present and does not protest, where the judge pro- ceeds to a special judicial inquiry without previous public opinion. The reason is that the supposed delinquent thus tacitly waives his right, and therefore can blame nobody but himself,' if the judge proceeds without common fame. 958. Where the ecclesiastical judge proceeds to a special judicial inquiry save in the cases excepted, his acts and judi- cial proceedings are not only illicit, but invalid, and that in such manner that even where the guilt is subsequently fully and canonically proved in the trial, the guilty party cannot be convicted or condemned." Note. — We observe with Bouix,' that the above law of the Church, requiring previous public report or common fame, has not been abrogated either by the Council of Trent or by any other subsequent Papal enactment, and is therefore in full force at the present day. 959. Q, Is previous ill-fame or public report also requisite when the judge institutes a special judicial inquiry at the instance of a third party ? A. We premise: This third party, as we have seen, is either a private individual or the public official appointed to prosecute crimes. We now answer: There are two opin- ions. The negative holds that no previous defamation or common fame is required, even when the denouncer is a ' Schmalzg., 1. c, n. 207. * Cap. 21 et 24, de Ace. ; Schmalzg., 1. c, n. 198. ' L. c, p. 71. 158 Of the Ordinary Canoiiical Trial private person, and, a fortiori, when he is the public or dio- cesan promoter.' This opinion, at least so far as the public promoter is concerned, is the one more commonly followed by canonists." The reason on which this view is based is, that the denouncer in the case takes the place of common fame. The affirmative, which is maintained by very able canonists, such as Bouix ' and Craisson " among the more recent authors, seems, however, grounded upon strong argu- ments. In fact, the decretals above cited, ° which are, as we have noted, still in force, point unmistakably to the necessity of previous public report in all cases where a special judicial inquiry is to be instituted, even though at the instance of a third party, whether it be a private person or public official. 960. Of course the exceptions given above,^ ^PP^V here also, even though the affirmative be adopted. However, as has been observed, most of these exceptions can scarcely be called exceptions, since their very nature involves publicity at least of the law. Bouix grants at most that the only cases where the ecclesiastical judge seems justified in proceeding without previous common fame are those where the interests of a third party, who is innocent, are directly injured by the occult crime. For the interests of a • third innocent party should be protected rather than the reputation of an occult criminal. He holds that where the crime is injurious only to the delinquent himself, and not to a third party, there must always be previous defamation. In illustration of this view he adduces the following example : Suppose one or two persons know that a parish priest who enjoys a good reputa- tion is guilty of some occult crime, which, however, does not redound to the spiritual injury of his flock. Here it is manifest that to institute a special judicial inquiry, and thus ' L. Ea quidem 7, C. de Ace. (9. 2); Reiff., 1. c, n. 176; Schmalzg., 1. c, n. 204. * Ap. Bouix, 1. c, p. 79. 2 L. c, p. 79-84. ■• N. 5857. * Cap. 16, 19, 21, 24, de Ace. (v. i). * Supra, n. 957. in Criminal Causes. 159 divulge the crime, would cause great scandal, and weaken the faith of many ; and it is evidently better to permit the secret sin of one, than to cause, by its divulgation, the spiri- tual ruin of many,' From all that has been said, it is clear that the safest policy is to proceed only upon previous com- mon report. 961. Q. Is previous common fame or defamation neces- sary for a general inquiry ? A. We premise: i. It is certain that bishops can and should, in their episcopal visitation of the diocese, make a general inquiry into offences — v.g., whether in the parjsh visited any crimes are being committed/ 2. The general inquiry may be either paternal or judicial. Bishops usually make it in a paternal manner. 962. We now answer: i. No previous common fame or defamation is required when the inquiry is paternal. When it is judicial there are two opinions. Some deny universally. Others — e'.^., Bouix' and Craisson^ — distinguish thus: When it is altogether general, referring to the whole diocese, — v.g., when the bishop inquires whether any crimes are committed in the diocese, — no previous public report is needed. But it is requisite, when the inquiry is somewhat particular — v.g., when the bishop examines whether crimes are committed in a certain monastery or even parish. Because such inves- tigation would injure the reputation of such place. 963. Observe that the judge or superior (we speak always of the ecclesiastical judge or superior) should inform those whom he interrogates whether he proceeds ju- dicially or only paternally. The reason is that witnesses are not only not bound, but are forbidden to reveal the occult author of a crime, where the judge proceeds judicially against him, unless there is previous defamation. And this ' Bouix, 1. c, p. 83 ' Cone. Trid., sess. 24, c. 3, de Ref. ^ L. c, p. 89. •• Man., n. 5853. i6o Of the Oi'dhiary Canonical Trial holds even where the crime can be fully proved by wit- nesses, and even when the judge interrogates under oath. The witnesses can answer with a mental restriction that they do not know. Much less is the occult guilty party, when interrogated by the judge, obliged to confess, so long as the crime is occult. For the judge has no right to interrogate in regard to occult cases. This holds true except {a) where the crime has not yet been committed, biit is about to be committed, [b) or where it is being continued, (f) or where a grave injury results to a third party, which cannot be easily averted except by judicial intervention. In these cases the person interrogated should reveal the delinquent, even though his crime be altogether occult, and he has not been defamed, in order that the judge may thus be enabled to prevent the sin or injury by opportune i"emedies.' 964. ^. Is previous common fame or defamation neces- sary also for a mixed judicial inquiry ? A. It is, when the inquiry is special with regard to the author of the crime, and general as to the crime — iKg., when it is made thus : Has Titius committed a crime ? Hence the Roman or civil law, followed by the Church, says: " Qui quaestionem habiturus est, non debet specialiter interrogare an Lucius Titius homicidium fecerit ; sed generaliter, quis id fecerit." " It is not, when the inquiry is general as to the person, and special only as to the crime — v.g., when it is made thus : Who has committed this murder ? ' 965. Nature and conditions of common fame, luJicrc it is indispensable prior to a judicial ijiqiiiry. — So far, we have seen when previous defamation or common fame is required, when not. Let us now go a step farther and ask : What kind of common fame is necessary in the cases where it is required previous to a trial by inquiry ? The law of the Church ' Schtnalzg,, 1. c, n. 195. ' L. I fif. de Quaest., § 21 (48. i8). • Reiff., 1. c, n. 169, 170. in Criminal Causes. i6i expressly requires, i. That the common fame or report shall originate with persons of probity and worthy of belief, not with malicious persons or slanderers. 2. That it shall reach the ears of the superior, not merely once, but often.' 3. It must, moreover, be spread, not only among a few per- sons, but the greater part of the neighborhood or community. Thus the Glossa^ says : " Quia fama loci requiritur, non fama aliquorum." 4. When the ecclesiastical judge proceeds at the instance of a third party, whether it be a private indi- vidual or the public prosecuting official, the existence of defamation or common fame must be, moreover, juridically established. This conclusion, however, is not admitted by all canonists. For, as we have seen," there are some who hold that no defamation, and, a fortiori, no canonical proof of its existence, is required, when the judge proceeds at the instance of another party. When the judge proceeds ex niero officio, previous common fame must indeed exist, and the judge must, moreover, be certain of its existence ; but he need not, at least absolutely speaking, formally and juridi- cally establish this fact — i.e., the existence of the report." We say, absolutely speaking; for the person against whom the inquiry is directed may deny that there is defamation, or at least that it has the requisite conditions ; and he may, if the judge decides against him on this point, whether expressly or tacitly, appeal to the higher superior ; and then the judge a quo is obliged to establish the existence of the report, fully and juridically, before the judge ad quern. ^ Hence it is safer for the judge, in all cases, even when he proceeds ex mero officio, to have the existence of the defamation juridically established. 966. Here it may be asked : How is the existence of common fame proved? It is established, like all other ex- ' Cap. Qualiter 24, de Ace. (v. i). "^ In cap. 21, de Ace, v. dicta paucorum. ' Supra, n. 959. ■» Reiff., 1. c, n. 192; Bouix, 1. c, p. 91. * Reiff., 1. c, n. 193; Miinchen, 1. c, vol. i., p. 493, n. 8. 1 62 Of the Ordinary Canonical Trial ternal facts, chiefly by the testimony of witnesses. This testimony should go to show, not precisely that the crime was committed by such a one, but that many persons or the greater part of the community say or believe that such a crime was committed by such a person. Next, the wit- nesses, upon being asked, should give the names of the per- sons among whom the common report exists, so that the judge may know whether they are worthy of belief or not." 967. In order that the ecclesiastical judge may be able to proceed to a special judicial inquiry, besides previous com- mon fame or defamation, it is necessary that the body of the crime {corpus delicti^ or the main criminal act be established. In other words, before the judge proceeds to inquire who has committed the crime, he must assure himself that the crime itself has been really committed." Thus the Roman law, followed by the Church, says : " Item illud sciendum est, nisi constet aliquem esse occisum, non haberi de familia quaestionem. Liquere igitur debet, scelere interem.ptum, ut Senatus-consulto locus sit." ' And this holds true even where the accused has confessed his guilt.* 968. But how is the body of the crime or the corpus de- licti to be established ? We must distinguish between those crimes which 3xe facti permancntis — that is, those which leave some traces behind; v.g., murder, incendiarism — and those which are facti trafiseuntis, that is, those which leave no vestige behind ; v.g., blasphemy, contumely, slander, magic, etc. When the crime is facti permanentis, the judge must generally obtain a clear and undoubted knowledge of the corpus delicti — namely, by ocular inspection. In other words, the judge must either go in person, or send somebody else for him, to the place where the crime was committed, and view the corpus delicti, — v.g., the murdered body, the ruins ' Glossa in cap. 24, de Ace, v. ad inquirendum; Miinchen, 1. c. * Bouix, 1. c, p. 100. ' L. I ff. de Scto. Silan., § 24. * Schmalzg., 1. c, n. 212, in Criminal Causes. 163 of the burned house, etc. If the crime is facti transeuntis, it is sufficient for the judge to base his knowledge of the corpus delicti upon presumptions and conjectures.' 969. As will be seen, the steps of the trial or process by- way of inquiry, which have been thus far considered, pre- cede and lead to the main or real trial or inquiry itself, and may therefore be termed the preliminary investigation or trial.' The object of this preliminary investigation is to see whether there is sufficient evidence to warrant the judge to proceed against the alleged offender. Its character, there- fore, is the same as that of preliminary examinations, which take place in our secular courts. In fact, as will be easily seen, the formalities of trials in vogue in secular courts, all the world over, have many things in common with those of ecclesiastical courts. 970. The main part of the trial by inquiry, or the real trial properly speaking. — When the preliminary investigation ^as been closed or finished, and the judge finds that the facts disclosed warrant him to proceed against the accused, the real trial or the main proceedings begin. The various steps or stages of these proceedings will be fully described further on, when we come to discuss them ex professo, in their proper places.' Here we shall but indicate them. The first step to be taken is the citation of the accused. Next, the latter must be shown the charges made against him, the deposi- tions and also names of the witnesses, so that he mav be able fully to defend himself.* His defence must be admitted ; and he must be given the fullest latitude in defending him- self. We observe, however, that the names (not the deposi- tions) of the witnesses may be withheld where it is feared that, if made known, the witnesses will suffer grave harm or injury, and be deterred from testifying, or at least testifying * lb., n. 216. ' Cf. Stremler, 1. c, p. 159. ' Infra, n. 982 sq. * Cap. 24. de Ace; Reiff., 1. c, n. 208; Schmalzg., 1. c, n. 214. 164 Of the Ordinary Canonical Trial correctly.' We observe, moreover, that the charges — which, as we have just seen, must be communicated to the defend- ant — must be specific, not merely general, and must there- fore give the circumstances or details of the crime — namely, the kind or species, the place and time when and where the crime was committed. The reason is, that the knowledge of these particulars enables the accused to de- fend himself better.^ 971. Are all these formalities obligatory sub poena nul- litatis of the process or trial ? They are. Hence, if any of them are omitted, — v.g., if there is no previous defama- tion, where it is required for the trial, or if the citation is omitted, or even where the order in which these formalities follow each other is inverted, — the trial or proceedings are null and void ; provided the accused, being present, pro- tests or excepts." We say, provided the accused, etc.; for if the accused is present, and does not protest, the proceedings are valid, even though some of the requisite formalities are omitted.* 972. Q. Are the above formalities obligatory, sub poena nutlitatis, also in proceedings before Commissions of Investi- gation in the United States ? A. We premise : The formalities here meant are the ascer- taining of the corp7is delicti, the existence and proofs of de- famation or common fame, the citation of the defendant ; the informing him, in detail, of the charges and specifications, as well as of the testimony of the witnesses, and all other evidence ; the hearing of his defence. 973. We noAv answer: They are, at least so far as their substance is concerned. For they are either expressly or impliedly prescribed by the S. C. de P. F., in its Instruction of July 20, 1878. establishing Commissions of Investigation ' Reiff., 1. c, n. 209; Schmalzg., 1. c, n. 214. ' Reiflf., 1. c, n. 210. ' Cap. 17 et 22, de Ace. (v. i). * Cap. i, 2, de Ace, in 6° (v. i). in Criminal Causes. 165 in the United States, and are, moreover, enjoined by the very law of nature, in every judicial proceeding, formal or infor- mal. As regards the law of nature, we have already seen that it requires these substantial formalities. So far as the above Instruction is concerned, it enacts expressly that the accused shall be cited ; ' that the charges shall be fully and clearly communicated to him ; ^ that he shall be given full power to defend himself ; ' that, consequently (by implica- tion), the testimony, as also the names of the witnesses, and all other evidence, be made known to him. Moreover, by implication, the Instruction prescribes that what has been said concerning the necessity of previous defamation or com- mon fame be observed. We said, at least as far as their substance is concerned ; for the mariJier in which these essential formalities are to be observed according to the sacred canons need not always be carried out with us, sub poena tiullitatis, though it is laudable to adhere even to this manner, as far as practicable. The reason is, that while the proceedings before our Commissions of Investigation are indeed judicial in their character,* they do not constitute canonical trials, in the strict sense of the term.^ We added, though it is laudable ; for the proceedings before our Commissions clearly partake of the nature, and are in fact modelled on the plan, of canonical trials by way of inquiry. 974. Note. — It is worthy of note, that publicity is ex- cluded from ecclesiastical trials, even though solemn or formal. Hence, as Stremler' very justly remarks, it is a deplorable error, caused by ignorance of the sacred canons, to pretend that in order to avoid scandal it is necessary to suppress or omit the formalities of canonical trials, and to adjudicate all criminal causes of ecclesiastics extrajudicially or ex informata conscientia — i.e., without any judicial formali- ' Instr. cit., § 4, Per Ikteras. * lb. ^ lb., § 7, Deinde. * S. C. de P. F., Ad Dubia, § iii., Ex quihus. * S. C. de P. F., Instr. cit., § 5, Coftvenieniibus. * L. c, p. 162. 1 66 Of the Ordinary Canonical Trial ties whatever. For, as the same author continues, it is very possible or feasible to give an accused ecclesiastic a regular or formal canonical trial without any publicity, in such man- ner that no one, save the parties directly concerned, — namely, the judge, the accused, and the witnesses, — need know of it. Of course this applies also to our trials as conducted before Commissions of Investigation, as is, moreover, clearly indi- cated by the S. C. de P. F. itself, in its above Instruction, when it directs that the bishop shall admonish the members of these Commissions (and a fortiori, all others who may be present at the proceedings) to keep silence in regard to what they may hear in the course of the proceedings.' This privacy or secrecy of the proceedings is evidently prescribed chiefly for the benefit of the accused, lest his reputation should otherwise be unnecessarily injured. Art. IV. Mode of Procedure by way of Exception {Norma Procedendi per viam Exceptionis). 975. The right of the defendant to take exceptions — that is, to protest against or object to the judge, accuser, wit- nesses, or the proceedings themselves, whether in whole or in part — being a legitimate means of defence, forms part of ecclesiastical trials. Now from such objections or challenges or protests, made in court or during the trial, a new cause or issue arises incidentally, which must be adjudicated ac- cording to the prescriptions of the sacred canons.' Now, as we shall see, it may happen that the exception of the de- fendant is based upon a criminal charge made then and there against the judge, informer, witnesses, etc. Thus it is evi- dent that crimes may be brought into court by way of exception. The latter is therefore one of the means of ' Instr. cit., § 5, ConvenienHbus. ' Bouix, 1. c, p. 107. in Criminal Causes. 167 instituting or beginning criminal trials in ecclesiastical courts.' It seems, therefore, proper, that we should here briefly explain the mode of procedure by way of exception. 976. By an exception we here mean an objection or protest made by the defendant against the judge, the ac- cuser, denouncer, informer, or witnesses, for the purpose of disabling these parties from acting respectively as judge, accuser, or witnesses, or even (where a crime is objected against them) for the purpose of having them punished.* From this definition it will be seen that there are two kinds of exceptions : i, criminal {cxceptio criminalist — namely, when a crime is objected ; 2, civil {cxceptio civilis), when a dis- ability is objected, which is not culpable. We shall here speak only of criminal exceptions, and that only so far as they give rise to a new though incidental cause or trial, since we shall treat of exceptions, especially civil, more fully later on. 977. A criminal exception can be made in two ways : civilly and criminally. It is made civilly when a crime is objected to the judge, opponent, witness, etc., not in order that he may be punished according to canon law, but merely that he may be excluded from acting as judge, witness, etc., in the case. It is made criminally, on the other hand, when the accused or defendant objects a crime, — v.g., to a witness or opponent, — not simply for the purpose of having its author rejected as a witness, etc., but, moreover, in order that punishment may be inflicted upon him for his crime by judicial sentence. To this kind of exception another bears a strong resemblance — namely, that by which an eccle- siastic, who has been appointed to a prelatic, episcopal, or other ecclesiastical dignity, or to an ecclesiastical benefice or office, is charged with or accused of a crime which, by the sacred canons, is an obstacle to his consecration, ordina- ' Reiff., 1. c, n. 233. * lb., n. 234. 1 68 Of the Ordinary Canonical Trial tion, or installation.' This exception is also called a quasi- exception. For an exception proper is one which is made only by a defendant, whereas this exception can be advanced also by others.'' 978. Q. What should the ecclesiastical judge do when the defendant makes a criminal objection or exception civilly? A. He should, before all else, that is, before proceeding with the trial of the main cause, adjudicate upon — i.e., hear and decide — the exception.^ And if he finds it sustained by sufficient evidence, he should exclude the parties against whom the exception was taken from acting as plaintiffs, witnesses, etc. But if the exception is not fully established by the defendant, upon whom rests the burden of proof, as he becomes the plaintiff, for the purpose of the exception, the judge should, by an interlocutory decision, decree, or resolution, reject it as frivolous and frustrative, and there- upon continue with the trial of the main issue, as though no exception had been taken.* 979. Can a person — v.g., the plaintiff, opponent, or wit- ness, against whom the defendant has entered a criminal exception or protest civilly, and established it by full proof — be punished by the judge for the crime thus proved ? He cannot, generally speaking. He can only be rejected either as plaintiff or witness, or as acting in another capacity. The reason is that the judge should, in proceeding, and in pronouncing sentence, adapt himself, or conform to, or comply with, the intention or petition of the party making the complaint or exception. Thus the cap. 31, de Sim.," expressly says: "Juxta judicii formam, sententiae quoque forma dictetur." And the Glossal commenting on these words, remarks : " Et ita judex" (ecclesiasticus) " semper secundum finem, ad quem quis agit, formabit sententiam." ' Schmalzg., 1. c, n. 243. * Bouix, 1. c, p. 109. " Cap. I, de Ord. cogn. (ii. 10); ib. Glossa, v. Cognoscendum. * Bouix, 1. c, p. no. * L. 5, t. 3, Decret. ^ lb., v. Formam. in Criminal Canses. 169 Now the end of a criminal protest or exception made civilly is simply to repel the party protested against from acting as witness, etc., but not to punish him. We said, generally speaking; since there are a few exceptions to this rule, for which see Schmalzgrueber, 1. c, n. 246. 980. Q. How should the judge (ecclesiastical) proceed when a defendant makes a criminal objection criminally, not merely civilly ? A. As such an exception partakes of the nature of a formal criminal accusation or charge, the proceedings should be nearly the same as those of criminal Xr'vdX's, per viam accusa- tionis, already described.' If the person making the excep- tion succeeds in proving it, the opponent or plaintiff, witness or other party, against whom it has been proven should not only be rejected as plaintiff or witness, etc., but, moreover, punished according to the sacred canons, as though he had been convicted on a separate trial. However, if the accused who has made the exception fails to sustain it, he does not incur ihQ poena talionis, or retaliatory punishment, since con- sideration is shown him on account of the provocation under which he acts.'' Note. — As we shall see further on, criminal exceptions, whether made civilly or criminally, can be made also in trials or proceedings before Commissions of Investi- gation in the United States. 981. Many canonists here add a fifth kind of ecclesiastical trial — namely, that which is followed when the crime is notorious {^processus ex notorio). But, as we shall treat of this procedure later on, we shall not dwell on it here further than to remark, that while no trial need be given the offender where his crime is notorious, yet certain judicial formalities are required to ascertain whether the crime is really no- torious. * Bouix, 1. c, p. III. *Schmalzg., 1. c, n. 250. 170 Of the Oj^dtnary Canonical Trial SECTION II. The different Stages and Formalities of Ordinary or Solemn Criminal Trials (Processus Criminalis Ordinarius) in Ecclesiastical Courts — Formalities of Ecclesiastical Trials in the United States. 982. Having shown how criminal causes are introduced into the ecclesiastical court, or how ecclesiastical criminal trials are begun also in the United States, we shall now describe the various stages or formalities of the trial itself. Here it is well to repeat, that unless the trial is conducted according to the forms prescribed by the law of the Church (which law, for criminal and disciplinary causes of eccle- siastics in the United States, is the Instruction of the S. C. de P. F. of July 20, 1878, establishing Commissions of Inves- tigation '), the proceedings are null and void." It is there- fore exceedingly important for all concerned to know these requisite formalities. Moreover, it is evident that unless judicial proceedings are conducted with order and method, they will end in confusion, rather than a knowledge or demonstration of the facts in the case. 983. Trials may be divided into three parts or principal stages. The first runs from the beginning or opening of the case to the contestation or defendant's plea, which is called litis cofttestatio exclusively, and may be termed the prelimi- nary trial, of which we have already spoken ; " the second, from the plea to the definitive sentence ; the third, from the final sentence to the end of the cause, or the execution of the sentence.* Accordingly, we shall divide this section into three articles. We speak here solely of criminal trials in the ecclesiastical courts. As, however, civil trials in the ' Supra, n. 972. * Supra, n. 971; L. 4, C. de Sent, et interl. omn. jud. (vii. 45); cap. 22, de Rescript, (i. 3); ib. Glossa, v. Juris ordine. ^ Supra, n. 969. * Soglia, 1. iv. cap, 3, § 30, ed. Vecch. ill Ci'iminal Causes. 1 7 1 ecclesiastical courts — of which we shall treat later — have many things in common with criminal ecclesiastical trials, we shall, in the course of the present section, explain as occasion offers, certain questions which refer peculiarly to civil trials in ecclesiastical courts. This will conduce to greater clear- ness, and at the same time obviate the necessity of repeating the same remarks when we come to treat of ecclesiastical civil trials. For similar reasons, we shall also set forth in this section the peculiar formalities of trials in our coun- try before Commissions of Investigation, as occasions present themselves, though we are fully aware, as we have already several times stated, that these trials are not strictly canonical trials. It is plain that by showing where our peculiar eccle- siastical trial differs from, and where it agrees with, the canonical trial proper, we shall better illustrate the nature and characteristics of both. Art. I. The Steps or Stages of formal Criminal Trials, from the be- ginning or opening of the Cause to the Plea exclusively — Application of the Principles here laid down to Trials in the United States before Commissions of Investigation. 984. The first step in the trial usually consists in tender- ing to the judge the written accusation, called libellus, or bill of complaint, by which both the judge and the accused are informed of the nature of the charges made. Next the judge issues the citation summoning the defendant to appear and answer the charges preferred against him. If the latter wilfully disobeys the citation, he becomes guilty of contempt. If he obeys and appears in court, he may, before giving a direct answer to the charge, make various protests or excep- tions, either against the action itself, or the mode of proce- dure, or the judge, or witnesses, etc.; or he may even make a 172 Of the Ordinary Canonical Trial counter-charge against the plaintiff. Hence, in this article, we shall treat, under separate headings, of the " libellus," the citation, contumacy and its effects, exceptions — especially those made against the judge, and counter-charges. § I. On tendering to the Ecclesiastical Judge the written Criminal Charge {de Libelli Oblatione). 985. If the procedure is by way of accusation {processus per viam accusationis), the accuser should, before all else, hand to the judge the written accusation or bill of com- plaint {libellus acciisationis).^ This is the first step in the trial by way of accusation. In like manner, if the procedure is by way of denunciation {processus per viam denuntiationis) or by way of inquiry {per viam inquisitionis ad ijistantiam alicujus) instituted at the request of a third party, the first act is the presenting to the judge the written denunciation, or denun- ciatory bill of complaint {libellus demintiatoriiis), signed by the person making the denunciation, or demanding the inquiry, whether he be a private person or a public official — v.g., the bishop's promoter or prosecuting official. To this denun- ciatory bill of charges should be appended a list of the wit- nesses or documents by which the charge is to be sustained." If the procedure is by way of inquiry, conducted by the judge altogether ex officio, — that is, not at the instance of a third party {per viam merae inquisitionis), — the first step is that the judge should assure himself of the existence of public fame, in the manner laid down above,^ Before proceeding to the cita- tion, therefore, the judge should examine witnesses and gather all the information he can, to ascertain the existence of defa- mation. Where he proceeds to a special judicial inquiry, he must moreover, according to many canonists, juridically verify the existence of common fame after he has received the denunciatory bill." Here we remark, that when the ' Supra, n. 935 sq. ^ Supra, n. 945. ^ Supra, n. 965 (4). ■* lb. in Criminal Causes. 1 73 judg-e has received the bill of accusation or denunciation, and finds it properly drawn up, he is bound to proceed against the alleged offender. For he is the public official appointed for the purpose of rendering justice to all.' Finally, where the procedure is by way of exception, the person excepting must, before anything else, give the judge the bill of exceptions, or of the charges on which the excep- tion is based. 986. From what has been said, it is plain that the handing- to the judge the written charge or bill of charges is the first step, except when the judge proceeds ex inero officio. But as a matter of fact, the trial by inquiry is rarely if ever in- stituted, except at the instance of a third party — namely, of a private individual, or the diocesan prosecuting official, who draws up, and tenders the bill to the judge, in the name of the diocese.^ Hence it may be said that, as a rule, the first step of a canonical trial is the tendering of the bill to the judge. 987. In our secular courts, all over the United States, no offender can -be put on trial on a criminal charge until a bill of indictment has been found against him by the grand jury. The language of the Federal Constitution is, " that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury." The various State constitutions include all criminal charges. The number of the members of a grand jury is usually fifteen, and generally twelve out of the fifteen must concur, in order to sustain an indictment. As to the weight of evidence required, the rule is, that they ought not to find a bill unless the evidence be such as, if uncontra- dicted, Avould induce them on the trial to convict. The trial itself takes place before the petit jury," 988. What then is meant by the libellus or bill of com- ' Bouix, 1. c, p. 139. « Bouix, 1. c, p. 141. » Walker^ p. 7,13 sq.. 174 Of the Ordinary Canonical Trial plaint, in ecclesiastical causes? It is a short writing or written statement, setting forth clearly the demand of the plaintiff or prosecution, and the reasons therefor.' It is divided {a) into simple or summary {libellus simplex or siivi- marius), or that which states the case in a summary manner ; {b) articulate, specific, or itemized {libclhis articulatus), or that which gives the complaint or charge under distinct and separate heads or specifications or counts ; ic) civil and criminal, according as the cause is civil or criminal. 989. Q. How should the bill of complaint or libellus be drawn up ? A. It should consist of three parts: the statement of the facts in the case ; the reasons for the demand ; the conclu- sion, or statement of what is asked of the judge. The first part — the narrative of the facts in the case — should chiefly give [ci) the name of the judge before whom the case is to be •tried ; {b) the name of the plaintiff, {c) and of the defendant ; ( Instr. cit. § 7, Deinde. * L. 11 ff. de Except. (44. i). 2 Cap. 24, de Except, (ii. 25). ■• L. 40 ff. de Reb. cred. (12. i). * Schmalzg., 1. c, n. 22. ' lb., n. 32. ' L. 19 ff. de Probat. ^ Supra, n. 978. in Criminal Catises. 201 nounced these exceptions either just or unjust by an inter- locutory sentence.' This holds so strictly, that if the judge acts differently it is lawful to appeal against his action, even at present ; and whatever he has done in the case after this- appeal should be annulled as an attentate." Of course the above does not apply in the case of peremptory exceptions, which are, as we shall presently see, made after the main cause has been finished and decided by a final sentence. 1033. 2. Peremptory exceptions should, generally speak- ing, be made after the litis contestation The reason is that these exceptions, if proved, quash the accusation or com- plaint. But no action can be quashed before it has a juridical existence, or before it is in court. Now an action is brought into court by the contestation.* When we say, after the litis contestatio, we mean that they can be made at any time after the contestation till the final sentence ^ (with us, in proceed- ings before Commissions of Investigation, from the time the accused begins to reply to the statement of the bishop's offi- cial, till the final sentence of the bishop). 1034. We S2iy , generally speaking; for some peremptory exceptions may be made before the contestation of the cause : — v.g., the exception of prescription ; those exceptions whose truth is notorious ; or the exception of res judicata, or of com- promise." The reason is that the cause being barred by pre- scription, or, as the expression is in our secular courts, by the statute of limitation, or having been terminated and settled by compromise or final sentence, should not be revived or begun anew." Some peremptory exceptions may even be made after the final sentence has been pronounced — v.g., the ex- ception that the sentence is null and void, and in general those exceptions which have reference to the final sentence ' Cap. 19, de Jud. (ii.. i). ^ Schmalzg., 1. c, n. 32. ' Ex leg. g, C. de Except, (viii. 36). * Schmalzg., 1. c, n. 23. ^ Glossa, in cap. 12, de Except, (ii. 25), v. In dilatoriis. * Cap. I, dcLit. cont., in 6°. ' Reiflf., 1. c, n. 47. 202 Of the Ordmary Canonical Trial or its execution.' Note. — As a rule, the exception, whether dilatory or peremptory, must be made, not by the judge, but by the defendant. Otherwise the latter is considered as having waived his right of so doing. Again, exceptions, whether dilatory or peremptory, should be made in writing, but can also be made viva voce, provided they are recorded on the minutes or in acts of the cause." § 6. Exceptions against the Judge. 1035. As the exceptions which are made against the judge himself are made and proved and decided in a manner alto- gether peculiar, and different from that in which the other exceptions are decided, we shall discuss them here under a separate heading. Before giving the mode of procedure in these exceptions, we shall, for the sake of greater clearness, make a few prefatory remarks, i. As we have already seen, the exception against the judge is always a dilatory, not a peremptory one. For the effect of such an exception is not to extinguish the action or complaint, but merely to transfer its adjudication to another judge. 2. The exception against the judge may be either against his competence — namely, that he has no jurisdiction in the case, or against his judicial integrity — namely, that he is suspected. 3. It is certain that a judge otherwise competent in the case can nevertheless be challenged or objected to, solely because there is reasonable ground for suspecting his integrity in rendering justice in the case.* For, as Pope Celestin III. says : " Ipsa namque ratio dictat quod suspecti et inimici judices esse non debent." * 1036. 4. The Pope cannot be objected to as suspected, since his exalted position places him above all suspicion. But all other ecclesiastical judges, both ordinary, such as ' Reifif., 1. c, n. 52; Schmalzg., 1. c, n. 24. * Schmalzg., 1. c, n. 29. » L. 16, C. de Jud. ■♦ Cap. 41, de Appell. (ii. 28); Can. 15, C. 3, Q. 5. in Criminal Caiises. 203 bishops, and delegated, and even judges of appeal, such as metropolitans, can be challenged as suspected ; ' nay, even a college or collective body of judges — i.e., a number of judges acting collectively or as a moral body — can be challenged. Hence also, as we have already seen, both individual mem- bers and the entire body composing a Commission of Inves- tigation, with us, may be challenged as suspected, because, among other reasons, they take the place of the judge (bishop) so far as concerns the hearing of the cause. 1037. 5. The legitimate reasons for challenging a judge as suspected are chiefly the following: {a) If there is ground for believing him to be iiostile. to the defendant, which can be presumed if he has made threats against him, or refused to show him the ordinary signs of courtesy or benevolence ; {b) When he has a special affection for, or particular relations with, the opponent of the person making the challenge — v.g., if he is a relative, master,' colleague, or particular friend of the opponent, ic) If he has a particular bias in favor of the cause— z^.^., if he has acted as advocate in the same case ; or if he has, as a private person, a similar cause pending before another judge. The reason is that it is presumed he will pass sentence in the same way as he wishes the other judge to do in his own case.' In general it must be observed that it is left to the arbitrators selected, as we shall presently see, to decide what is a just cause for challenging a judge as suspected. For it is their right and duty to decide not only whether the facts exist, but also whether they are sufficient to authorize the rejection of the judge.* 1038. Q. What is the mode of procedure when the judge is challenged or objected to ? A. When the judge is excepted to as incompetent, — i.e., as not possessed of jurisdiction in the cause, — he himself has ' Ex cap. 41 et6i, de Appell. (ii. 28); Schmalzg., 1. 2, t. 28, n. 135, * Schmalzg., 1. c, n. 138. ' lb., n. 137. 204 Of the Ordinary Canonical Trial the right to pronounce upon the exception, or decide whether or not he has jurisdiction.' If he is challenged, however, as suspected, the following is the mode of proce- dure prescribed by the Church or the sacred canons, i. The person challenging must state the specific or precise cause of the challenge or suspicion, and that in writing, and to the judge himself who is challenged.'' 2. The cause of the suspicion is not, however, to be tried and decided by the judge himself who has been challenged (lest he may thus seem to act as judge in his own cause, which is forbidden '), but must, as a rule, be committed to arbitrators for decision. 1039. 3- The mode of appointment of these arbitrators is this : Where there is a plaintiff, distinct from the judge, — v.g., where the trial is by way of accusation or denunciation — two arbitrators are selected by mutual agreement of the plaintiff and defendant, if they can agree upon two. If they cannot agree upon any two, the plaintiff selects one and the defendant the other. Where the judge proceeds ex officio, as in the trial by way of inquiry (the trial in the United States, as prescribed b}^ the S. C. de P. F., July 20, 1878, par- takes, as we have seen, of the process by way of inquiry), and where, consequently, there is no plaintiff distinct and separate from the judge, the selection or appointment of the arbitrators should be made in the manner just given, by the judge who is challenged and the party challenging. This is certain in the case of a judge proceeding absolutely ex officio — i.e., not at the instance of a third party ; v.g., the diocesan promoter or prosecuting official. Whether, in case he pro- ceeds at the instance of the promoter (with us, bishop's offi- cial *), the appointment of one of the arbitrators belongs to the latter official — who is, so to say, the plaintiff — or to the bishop or judge, we do not feel competent to decide. 1 Supra, n. 721. * L. 16, C. de Jud. ^ L. unic. C. Ne quis in sua caus. jud. (iii. 5). * Instr. S. C. de P. F., July 20, 1878, § 2. in Criminal Causes. 205 1040. 4. If the two arbitrators thus chosen cannot agree upon a decision as to the cause of the suspicion, they should choose a third one. Whatever two of these three arbitrators decide, shall be binding. 5. If the arbitrators decide that the cause or reason upon which the challenge is based is insufficient or not proven, the judge challenged will then proceed with the case as though he had not been challenged. If, however, they pronounce the cause of the challenge legiti- mate and proven, the challenged judge cannot proceed with the case, but should either transmit it to the superior tri- bunal, or delegate it, with the consent of the person chal- lenging, to some other person. This can be done even before recourse is had to arbitration.' The mode of pro- cedure above outlined, was established by Popes Celestin III." (1195) and Innocent III." (1216), and is still in force. 1041. What are the rights and duties of these arbitrators? They can and should take cognizance of, and pronounce solely on, the cause or grounds of the challenge or suspicion, and not on the merits of the main cause or issue during the trial of which the challenge is made. For this purpose they can cite witnesses and compel them to testify; admit excep- tions against the persons or depositions of the witnesses ; etc., etc.* They should decide, as we have seen, upon two ques- tions: First, one of law — namely, whether the cause of the suspicion, as alleged, is one which, according to the law of the Church, or the opinion of prudent and good men,, would justly render the judge suspected. Second, the other of fact — namely, whether the cause is proved to exist in reality.^ 1042. Application of the above principles to the United States. — That it is allowed also with us to object against an ecclesiastical judge as suspected, there can be no doubt. For, as we have seen," the right to make exceptions of this ' Schmalzg.,1. c, n. 142. * Cap. 41, de Appell. (ii. 28). ' Cap. 61, de App. (ii. 28). ■• Schmalzg., L c, n. 141. * Supra, n. 803, 808; Bouix, de Jud., vol. ii., p. 182. ® Supra, n. 1030. 2o6 Of the Ordinary Canonical Trial kind forms part of a just defence, which is given by the law of nature, and is, moreover, expressly granted by the In- struction of the S. C. de P. F., establishing Commissions of Investigation in this country.' It is certain that the bishop, with us as elsewhere, can be challenged. We have, more- over, seen that members of Commissions of Investigation may also be objected to. Where the bishop, with us, is objected to, the mode of procedure is plain enough ; since the principles above laid down seem easy of application. For the bishop either transmits the whole or main cause to a higher ecclesiastical tribunal, or, with the consent of the challenger, delegates it to some other ecclesiastic for adjudi- cation, or the cause of the challenge is submitted to arbitra- tors, chosen as stated above. That the bishop cannot him- self decide the allegations upon which the challenge is based, is clear from the fact that the law of the Church, forbidding the challenged judge to take cognizance of the challenge, is founded upon the natural law, as Pope Celestin III. inti- mates,* which obtains also with us, independently of the question whether canon law fully obtains in this country. 1043. Mode of proccdtire when a member of a Commission of Investigation is challenged, with us, as suspected. — This question seems to us difficult of solution. Is the issue or question, whether the reasons alleged for challenging a member of a Commission are well-founded and sufficient, to be decided by the bishop or by the Commission, without any recourse to arbitration, or is it to be committed to arbitrators, as above explained ; and if so, how are these arbitrators to be chosen ? By the defendant and the bishop or the latter's prosecuting official? Or by the defendant and the Commission — or at least the member of the Commission who is challenged ? Before answering directly, we beg to say that the only safe way in which, it seems to us, a satisfactory answer can be 1 Instr. cit., § 7, Deinde. » Cap, 41 (ii. 28). in Criminal Causes. 207 given, is by a decision of the Holy See. The organization of our ecclesiastical courts, according to the Instruction of the S. C. de P. F., dated July 20, 1878, is somewhat different from that established by the common law of the Church, and resembles in many ways that of secular courts in this country and elsewhere, which are composed of a judge and a jury. Hence it is not easy to arrive at certain conclusions. 1044. In the absence of any authentic decision of the Holy See, and without wishing to forestall such decision, we venture to lay down the following inferences: i. We said above, " that, as a rule, the grounds for the challenge of a judge must be referred to arbitrators. From this rule there are three exceptions — i.e., cases where the reasons for the challenge need not be submitted to arbitrators, but may be taken cognizance of by others. These cases are : I. Where the judge challenged is a delegated judge, and where the judge who delegated him is easily accessible, or not too far away, the cause of the challenge is taken cognizance of, not by arbitrators, but by the judge delegating.' So a challenge against a judge delegated by the bishop is decided by the bishop, and not by arbitrators. In like manner, it may be argued, when a member of a Commission of Investigation, with us, is challenged, the cause of the challenge should be taken cognizance of by the bishop, and not by arbitrators. However, against this it may be said that members of Com- missions are indeed appointees, but not delegates of the bishop, but rather delegates of the Holy See, or, a jure, like synodal judges, since they are clothed with jurisdiction, not by the bishop, but by the law, — i.e., the Instruction of the S. C. de P. F., of July 20, 1878. Now, the reasons upon which a challenge against a delegated judge are based are to be de- cided by the judge who delegated him only when this dele- gating judge is near at hand, so as to cut ofT delay. When ' Cap. Si contra 2, dc Off. del,, in 6° (i. 14). 2o8 Of the Ordinary Canonical Trial he is far off, as the Holy See is with regard to the United States, the decision is to be left to arbitrators. Moreover, as we shall see in the case of vicars-general, the judge or bishop delegating cannot try the challenge, but must refer it to arbitrators, when he is himself suspected. Now, it may happen from various reasons that when a Commis- sioner is suspected the bishop may also become suspected. 1045. II. The second exception is where the vicar-general acting as judge is challenged. In this case the challenge is decided by the bishop, not by arbitrators,' unless the bishop is himself suspected." From this again it may perhaps be in- ferred that the bishop, and not arbitrators, has the right to hear the challenge made against a member of a commission. Against this conclusion it may, however, be objected that the decision of the challenge, in the case of the vicar-general, belongs to arbitrators, and not to the bishop, if the latter is himself suspected. Now, according to Bouix,^ practically speaking, the bishop may always be considered suspected when his vicar-general is so regarded, and vice vcrsd. In like manner it may perhaps be reasoned, when a member of a Commission is suspected, the bishop who appointed him becomes frequently, eo ipso, also suspected, and therefore incompetent to try the challenge.* 1046. III. The third exception is where two delegates (the same holds where more than two are appointed ') are ap- pointed by the Holy See (the same holds of delegates ap- pointed by others *), with the clause. Quod si ambo non potcstis, unus sen alter procedat — i.e., in such manner that if both or all cannot proceed in the cause, then the other or others can pro- ceed. In this case, when one of the delegates is challenged as suspected, the challenge is tried and decided, not by arbitra- tors, but by the other delegate or delegates not challenged, ' Cap. Si contra cit. * Schmalzg., 1. 2, t. 28, n. 140. ' De Jud., vol. ii., p. 184. * Cf. Leur., For. Benef. Tr. de Vicario-gen., Q. 90 et 91. 5 Glossa, in cap. 4, in 6° (i. 14), v. Ex duobus. * Glossa, ib. v. A Sede Ap. in Criminal Causes. 209 so that the latter may know whether he or they can go on without the colleague challenged. This law, however, does not apply to two or more delegated judges appointed in such a manner as to be obliged to proceed collectively, so that one cannot proceed without the other. In the latter case, the challenge against one of the judges must be referred to and decided by arbitration.' 1047. From this third exception it may perhaps be argued that from the fact that in the United States a Commission of Investigation — supposing it to consist of five members — is empowered to proceed in a cause so long as three mem- bers remain qualified or unchallenged,* it follows that in case the fourth or even fifth member is challenged it becomes the right and duty of the other three or (in case only one member is challenged) four members who are unchallenged, to take cognizance of and decide the challenge, so that they may know whether their colleague has become disqualified or not, and whether consequently they can proceed in the cause without him. But, it may perhaps likewise be further rea- soned, if only two (or less) members remain unchallenged (no matter whether the Commission consists of five or only three members), the challenge must be referred to and decided by arbitrators ; for two cannot proceed validly (of course, m causes where the Commission must be convened), and there- fore have no right to inquire whether they can go on or not without their colleagues. Besides, it may further be said, as these two cannot proceed alone, they are like a number of delegates or judges appointed collectively for a cause with- out the clause, " quod si non omnes possunt, alter procedat," and consequently recourse must be had to arbitrators. 1048. Note, however, we say " it is the right and duty of the three or four unchallenged Commissioners to take ccf^ni- ' Cap. Si contra cit. « Instr. S. C. de P. F.,20 Julii, 1878, § Quod si. 2IO Of the 0}-dinai'y Canonical Trial sance of the challenge;" for although, according to the view just explained, the challenge is to be proved before the mem- bers who are unchallenged, it is nevertheless to be proposed or made before the whole body, inclusive of the member challenged,^ as the Glossa' explains in the case of challenged delegates. 1049. Q- By whom are the arbitrators to be chosen in the United States, supposing that the challenge is referred to arbitrators ? A. I. One, of course, by the defendant making the chal- lenge; the other by the member of the Commission chal- lenged, or perhaps by the priest appointed by the bishop to conduct the prosecution of the cause." For, as we have seen,' where the judge proceeds ex officio, and there is conse- quently no plaintiff distinct from the judge, the judge him- self who has been challenged appoints the second arbitrator. Now, with us, the procedure is ex officio, and the Commis- sioner who is challenged, together with the rest of the Com- mission, represents the judge or bishop, and therefore has the appointment of the second arbitrator. We say, however, or perhaps by the priest, etc. ; the reason of this conjecture is, that the proceedings of the judge or Commission, where a promoter or prosecuting official intervenes, are ex officio in- deed, but yet not absolutely or strictly so ; that, consequently, as this official seems to a certain extent to occupy the posi- tion of a plaintiff, it may perhaps be his right to name the second arbitrator. 1050. 2. If the two arbitrators cannot agree as to the existence or reasonableness of the cause alleged for the chal- lenge, they should select a third one, as stated above.* Should the arbitrators decide (and they should proceed sum- ' In cap. Si contra, v. Probari. * Instr. S. C. de P. F. cit., § 2, Re ad consilium. * Supra, n. 1039. * Supra, n. 1040. in Criminal Causes. 2 1 1 marily) that the challenge is well taken, — i.e., legitimate and proved, — the decision of the arbitrators must be communi- cated to the bish(5p (at least where only two Commissioners remain unchallenged), who will thereupon appoint another priest to act on the Commission (at least, where (^therwise the Commission would consist of less than three members), for that particular case, in the place of the challenged mem- ber of the Commission. The latter does not cease to be a member, but is simply disqualified to sit in the particular case of the person by whom he has been challenged. 105 1. Again, a member of a Commission, when objected to, may save the necessity of recourse to arbitrators by vol- untarily giving up his place for that particular case. And as the acts of the Commission are valid, provided three members remain qualified and conduct the proceedings, the bishop need not necessarily appoint any other priest to fill the place of the challenged member, provided three mem- bers remain. Should, however, the bishop determine to appoint a temporary member to fill the place of the one chal- lenged (which he is bound to do when less than three remain unchallenged or qualified), he would be obliged to appoint one who would not be objectionable to the challenger,' 1052. Q. When is the objection or challenge against the ecclesiastical judge to be made ? A. Before the litis contestation and within twenty days after the bill of complaint or charges (with us, the statement drawn up by the bishop's official, and sent the defendant, together with the citation^) has been presented to the ac- cused or defendant. Thus the Roman law, adopted by the Church, says : " Offeratur ei qui vocatur in judicium libellus; et exinde . . . viginti dierum gaudeat induciis, quibus de- liberet ... an recuset eum" (judicem).' We say, " before » Ex cap. 61 (ii. 28). « Instr. S. C. de P. F., 20 Jul., 1878, §§ 2 et 4. ' L. offeratur i, C. de Lit. cont. (iii. 9). 212 Of the Ordinary Canofiical Trial the litis contestatio or plea." For the exception or challenge against the judge belongs to the class of exceptions called dilatory exceptions, which, as we have seen,' must generally be made or proposed before the contestation of the cause. Nay, the exception against the judge has this peculiar char- acteristic, that it should be proposed before any other dila- tory exception.* The reason is, that a person who submits any other dilatory exception before he challenges the judge, is presumed to have accepted the judge, by allowing the exception to be tried before him, and thus to have waived his right of challenge.^ As shown, however, above," this exception, like dilatorj"^ exceptions in general, may sometimes be made after the contestation. 1053. Finally, we remark, that as exceptions are the le- gitimate weapons of defence, — anna rcorian," — and therefore guaranteed by natural law itself, it follows that if the judge (with us, v.g., bishop or Commission of Investigation) re- fuses to admit an exception properly made, it is allowed to appeal (also with us, in proceedings before Commissions of Investigation) at once against such refusal.* 1054. What are the chief effects of the challenge against the judge ? After the challenge or recusation has been pro- posed, and pending its decision, the judge should not, unless the challenge is manifestly frivolous, proceed with or do anything further in the main cause ; otherwise his acts will be attentates, as though done after an appeal had been inter- posed. Consequently, these acts, or rather attentates, must before all else be revoked by the superior judge. It is, however, a controverted question whether they are ipso Jure null and void, or only subject to being declared void by the higher judge/ ' Supra, n. 1031. ' L. 13, C. de Jud. (8. 36); Reiflf., 1. c, n. 12. ^ Glossa, in cap. 12 (ii. 25), v. In dilatoriis; Glossa, in cap. 20 (ii. 26), v. Subeundo. * Supra, n. 1031; Schmalzg., 1. c, n. 133. * Glossa, in tit. de Except. * Reiff., 1. c, n. 82. ■" Schmalzg., 1. c, n. 144. in Criminal Causes. 2 1 3 § 7. Of Ecclesiastical Counter suits or Charges, also in the United States {De Mutuis Petitionibus). 1055. Sometimes the defendant, having received the libellus or bill of complaint brought against him by the plaintiff, demands in turn something of the plaintiff, and having presented a bill of complaint to the judge, also insti-. tutes an action against the plaintiff himself. This counter- action {reconvention is called in canon law mutua petitio, because the reciprocal demand or complaint of the defend- ant causes two mutual or reciprocal complaints or actions to arise. What, then, is meant by a counter-complaint or mutua petitio or reconventio ? It is an act whereby the de- fendant, having received and read the libellus or complaint (with us, in trials before Commissions of Investigation, the statement pro causa, sent the defendant with the citation ') of the plaintiff, in turn makes a demand upon or complaint against him, and that before the same judge and during the same trial.' Observe that the plaintiff, so far as concerns the counter-complaint brought against him by the defendant, becomes subject to and is triable by the judge in the case, even though he would otherwise not fall under the latter's jurisdiction.^ 1056. Q. In what causes is a defendant allowed to insti- tute a counter-action, or make a counter-charge, in ecclesi- astical tribunals? A. Generally speakmg, in all causes which are not ex- pressly excepted by law — i.e., by the sacred canons, or by the Roman law as adopted by the sacred canons. Speaking in particular, a counter-action may be instituted ( Bouix, de Jud., vol. ii., p. 192. » Cf. Instr. S. C. de P. F. cit., § 4, Per litteras. in Criminal Causes. 221 § 2. Positions and Articles {Positiones, Articuli). 1070. The so-called positions and articles are akin to the contestation of the cause, and as a rule follow immediately after it. To a certain extent, they serve the same purpose as the contestation — namely, to fix clearly the questions at issue, or the charges to be proved. What, then, is meant by positions and articles? Positions {positiones) are certain brief and concise or categorical questions, assertions, specifi- cations or counts, pertaining to the cause on trial, which one of the litigants (usually the plaintiff, and in criminal causes the diocesan prosecuting official) submits to the judge, with the request that the other litigant (usually the defendant) be compelled to answer categorically yes or no, or whether he admits or denies them, and that for the purpose of being re- lieved from the burden of proving those points or specifica- tions that are admitted by the opponent.' 107 1. Positions may be made either in the form of ques- tions, or positive affirmations or assertions. The following is a specimen of a position in the form of a positive statement : I affirm or charge that thou, Titius, the defendant, hast killed Caius ; that thou didst perform the deed on such a day, m such a place, with a sword ; that thou didst know him to be an ecclesiastic, etc., etc. The following, on the other hand, is a sample of an interrogative position : Did you, Titius, kill Caius? Did you kill him at such a place, etc. ; did you not know him to be an ecclesiastic, etc. ?^ Those positions which are denied by the opponent, and which consequently must be proved by the one who has submitted them, are called articles [articiili), the others simply positions. 1072. From what has been said, the object and utility of positions will at once be seen. For if the diocesan prose, ' Glossa, in cap. i, de Confessis, in 6° (ii. 9), v. Statuimus; Schmalzg., 1. 2, t. 5, n. 5; Bouix, de Jud., vol. ii., p. 207. * Cf. Glossa, cit. 222 Of the Ordinary Canonical Trial cuting official, for instance, proposes ten such specifications or categorical questions, and the defendant admits six, and only contends that four are false, it will be necessary to prove only the four, as the other six are established or proved by the defendant's own confession, which is the best possible proof. 1073. Do these positions and articles still obtain, also in the United States ? By virtue of the positive canon law these positions and articles (in criminal causes they are called chapters or capitula) still obtain and form part of canonical trials, even though not solemn or formal, but merely sum- mary/ We s?iyy positive canon law ; for, as Bouix,' Craisson, and other canonists testify, these positions are no longer formally in use, at least in a number of ecclesiastical courts, having been abolished by legitimate custom to the contrary. Observe we S2iy , formally in use ; for they are still informally or substantially in vogue ; since the judge, in examining the litigants or the accused, in the preliminary hearing, substan- tially puts at the present day the same questions as would be embodied in positions.' In this informal way they certainly also may be, in fact are, employed with great advantage in trials or proceedings before Commissions of Investigation in the United States. § 3. Oaths administered in Ecclesiastical Trials to the Princi- pals or Litigants themselves. 1074. Note. — In speaking of the positions and articles, before the oaths taken by the litigants, we have somewhat anticipated the course of the trial. For one of the oaths, of which we shall now treat, is taken immediately after the con- testation, and directly before the positions and articles are submitted." Again we observe, that the oaths, of which we ' Clem. Saepe 2, de V. S. (v. 11); cap. I, 2 in 6° (ii. 9); Bouix, 1. c, p. 210. * L. c. * Molitor, 1. c, p. 251. * Ex cap. 2 in V (ii. 9). in Criminal Causes. ^223 here speak, are taken by the litigants themselves, — both plaintiff, or prosecution, and defendant, — but not by the wit- nesses. The oath administered to the latter is altogether dif- ferent. We shall now briefly describe the oaths in question. 1075. The nature and character of these oaths will be best understood by simply describing the course of pro- cedure. After the contestation has taken place, and before any testimony is taken,' the litigants — that is, both the plain- tiff, or prosecution, and defendant — are put under oath ; in other words, the plaintiff swears that he has begun and con- tinues the cause in good faith, and without malice or chi- canery {caluinnia), and the defendant that he contests it, believing he has a right to do so. This oath is called j'ura- mentum calumniae, the word caliimnia meaning here, or in judicial matters, deceit or chicanery. This oath is general in its character and application — that is, it refers to all the acts of the litigants in the course of the entire trial. In other words, by it the parties pledge themselves to act in good faith during the whole trial. Hence this oath is justly de- fined to be that by which the litigants swear that they have begun and will prosecute or continue their cause in good faith and without cahtmnia — i.e., chicanery or wiles.' 1076. The oaths called rQsr^eci\Ye\y juramentum veritatis zxid juramentum malitiae are akin to the oath of calumnia just described, ^y ih.Q j'liramentum veritatis the parties — i.e., the plaintiff or defendant — swear they will tell the truth in a particular matter or point coming up during the trial. By the, juramentum malitiae they swear they will not act mali- ciously in this or that instance. The difference between the juramentum caluinniae and the oaths veritatis and malitiae is apparent from their respective definitions. The juramenttim calumniae is general and refers to the whole cause, and is * Schmalzg., 1. 2, t. 7, n. i. * L. I, 2, C. de Jurej. prop. cal. (ii. 59); cap. i, de Jur. cal. (ii. 7); ib. Glossa, V. Calumnia; Schmalzg., 1. c, n. 2. 224 Of the Ordinary Canonical Trial therefore taken at the beginning — i.e., immediately after the litis contestatio — and only onc^. The other two are particu- lar, — i.e., refer only to this or that act during the trial, — and may therefore, and are, taken during any part of the trial, and as often as occasion requires. 1077. It is certain that both the oaths of calumnia and malitiae are now entirely obsolete in ecclesiastical courts, being no longer taken. The oath to tell the truth is still in use in ecclesiastical courts, though it can no longer be ad- ministered in criminal causes to the accused when criminally examined. This was enacted by Pope Benedict XIII. in the Roman Council held in 1725.' Although this council is but a provincial council, and therefore not obligatory out of the Roman province, yet its prohibition is observed every- where, and can be considered as a common law of the Church.* Neither can the oath {Juramentuin veritatis) be administered to a defendant in grave civil causes ; since the latter are, in canon law, placed on an equal footing, owing to their gravity, with criminal causes. In proceedings or trials before our Commissions of Investigation, none of the above oaths is administered either to the defendant or the plain- tiff, or the bishop's official who represents the plaintiff or prosecution in criminal causes.V § 4. Of Delays which occur during the Trial {De Dilationibus). 1078. After the contestation has taken place and the oath of calumnia been administered (where it is still in use), and the positions put and answered, the litigants usually ask for a delay, or for time to make out their case. In other words, the plaintiff or prosecution generally asks for time to complete his proofs, etc., and the defendant for time to pre- pare his defence. Nay, delays may and do occur even ' Tit. 13, cap. 2: « Craiss., n. 5931. » Arg. ex Instr. cit., S. C. de P. F., July 20, 1878, § 11, Non requiratur. in Crinimal Causes. 225 previous to the contestation. Hence this seems to be the proper place to say a few words in regard to delays that may happen in judicial proceedings, also before our Com- missions of Investigation. 1079. What are judicial delays ? As here understood, a judicial delay is a just, proper, or sufficient interval or space of time granted to the plaintiff (prosecution) or defendant for the purpose of enabling him to prepare for and perform some judicial act more conveniently.' Of these delays {dila- tiones judicialcs) some are given, i, by the law — i.e., by the law of the Church, or the Roman law as adopted by the Church, or by statute, or also by custom, and are called legal delays [dilationes legalcs). Thus ten days are granted by the sacred canons for appealing against a sentence, so that it may not pass into res judicata^ 2. Others take place by the mutual consent of the contending parties. They are styled conventional delays {dilationes conventionales), and are, within due bounds, allowed by the Church.^ 3. Others, finally, are given by the judge, and termed dilationes arbi- trariae — i.e., delays granted at the discretion of the judge, according as circumstances may demand.'' 1080. Delays may occur during any stage of the trial. Hence they are divided into three kinds, according as they happen {a) during the first part of the trial or proceedings — i.e., from the citation to the contestation inclusive; ib) or during the second part— namely, from the contestation (or its equivalent) to the pronouncing of final sentence exclu- sive ; ic) or during the third and final stage — i.e., from the sentence till its execution.^ We shall now explain these three classes. 1 08 1. I. Delays which occur before the contestation. — These delays refer directly or indirectly to the defendant's appear- ' Reiff., 1. 2, t. 8, n. 2. ' Cap. 15, de Sent, et re jud. (ii. 27). ^ Cap. 28, de Off. jud. del. (i. 29), § Cum autem; ib. Glossa. ■» L. 72 ff. de Jud. (v. i.); cf. Reiff., 1. c , n. n-14. ^ Reiff., 1. c., n. 10. 226 Of the Ordinary Canonical Trial ance in court, upon due citation, being conceded to a person who for just cause either cannot or need not appear before the judge at the time, place, or in the manner specified in the cita- tion. Of these delays, some are citatory, others deliberative, others finally recusativ^e. Citatory delays {dilationc citatoriac) are those which are given a defendant, who is cited, to enable him to appear in court on the day specified in the citation. By the general law of the Church, as we have seen, ten days must intervene between each of the three simple citations, or thirty when there is but one peremptory citation. This rule, however, is subject to certain modifications. For, where there is just cause, this time may be prolonged or limited by the judge, provided always that the defendant has sufficient time not only to appear, but also previously to de- liberate upon the case, consult advocates, experts, etc. Other- wise another delay would have to be granted for delibera- tion, and if refused by the judge, there would be just cause for appeal.' 1082. Deliberative delays {dilationes deliberatoriae) are those which are allowed the defendant after the bill of com- plaint or charges has been served upon him, for the purpose of enabhng him to consider whether he will contest the case or not. A delay of twenty days is conceded by the common law of the Church for this purpose.' Sometimes, however, no such delay is granted — namely, when the person cited has been fully instructed as to the nature of the complaint by the letters of citation ; ' i.e., where these letters are accompanied by a copy of the libellus or complaint, or by a specific state- ment of the complaint or charges.* 1083. From this it is apparent that, as a rule, these de- liberative delays, preceding the trial, cannot always be claimed in the United States. For the oft-quoted Instruc- ' Cap. I, de Dilat. (ii. 8); Schmalzg., 1. c, n. 7. « Novella 53, cap. 3, § r. » Cap. 2, de Dilat. (ii. 8). * lb. Glossa, v. Plene. in Criminal Causes. 227 tion of the S. C. de Prop. Fide, dated July 20, 1878, ordains that except where prudence forbids it, as in the case of occult crime, the bishop shall send to the accused, together with the citation, a full and specific statement of the charges or complaint, which will enable the latter to understand the nature of the case fully. Here are the words of the Instruc- tion : " Per litteras etiam rectorem missionarium . . . advocet, exponens nisi prudentia vetat, uti in casu criminis occulti, causam ad dejectionem moventem, per extensum." ' We say, as a rule ; since, if the time fixed in the citation for appearing is not sufficiently long to enable the accused to consult advocates and prepare his defence, or if the state- ment pro causa sent the accused is not sufficiently clear, full, and explicit, a further reasonable delay ought to be granted." Otherwise the defendant has legitimate cause for appeal.' Moreover, where, as in the case of an occult crime, the cita- tion with us, need not and is not accompanied by a full and specific statement of the charges,* the accused, on appearing before the Commission of Investigation in obedience to the citation, must be fully informed of the charges, and given time to prepare his defence. 1084. Finally, recusative and dilatory delays {dilationes recusatoriae, dilatoriac) are those which are given for the purpose of enabling the parties to submit and prove their recusative and other dilatory exceptions. 1085. II. Delays which are granted after the contestation to the sentence. — These delays are called probative {dilationes probatoriac), and are defined to be those which are conceded to each of the litigants to prove his case — namely, to the plaintiff or prosecution to obtain witnesses, and in general to prepare the proofs of the complaint or charges ; to the defendant to enable him to get ready for the defence — i.e., ' Instr. cit., ^ 4, Per litteras. ^ Ex cap. 3, de Dilat. (ii. 8). ^ Ex cap. I, de Dilat. (ii. 8); cf. Schmalzg., 1. c. n. 7. * Cf. Instr. cit., § 4. 228 Of the Ordinary Canonical Trial to obtain witnesses, documents, etc' The duration of a probative delay, as established by the common law of the Church, is as follows: Where the proofs or instruments or witnesses to be produced are in the same province (with us. State) in which the trial takes place, three months are granted ; where they are in a different province (with us, a different State of the Union) which is near by, six; when abroad, or at a great distance, nine months." Flowever, at the present day, the duration or length of these delays (the same holds of all other legal delays — i.e., delays given by the law itself) is left in a certain measure to the discretion of the judge, provided always that the defendant be equally favored with the plaintiff — i.e., that as much time or delay be given to the defendant as is given to the plaintiff or prosecution, especially as the law always favors the accused or defendant more than the. plaintiff/ We say, in a certain measure; we mean that the judge can limit or prolong these delays, for cause, but not arbitrarily." 1086. In criminal causes (the same holds of grave civil causes) the accused can be granted a second and a third probative delay to enable him to prepare for his defence, but the prosecution only a second.^ The reason is, that if ever the defendant should be more favored than the plain- tiff or prosecution, it should be in criminal causes, where he has so much at stake, and where, consequently, every facility should be afforded him for defending himself.* Besides, the prosecution has always this advantage, that it can select its own time, and begin the criminal procedure only when it is perfectly ready and has collected all the necessary proofs ; whereas the defendant has no such advantage. 1087. Application of the preceding principles to the United States. — The above principles concerning delays apply in a ' Cap. I (ii. 8); L. i et 2, C. de Dilat. (iii. 11). « L. i, C. de Dil. * Reg. 32, Jur.ine"; Schmalzg., 1. c, n. 13. * Glossa, in cap. i,de Dil., v. Plene. ' L. 10 ff. de Feriis (ii. 12). • Schmalzg., 1. c, n. 15. in Criminal Causes. 229 measure also to proceedings or trials before our Commissions of Investigation. It is true that these trials are of a sum- mary character, and that in summary causes or trials the judge should cut off all avoidable and unnecessary delays.' We say, avoidable delays ; for reasonable delays must be granted even in summary trials,' and consequently also in proceedings before our Commissions of Investigation, In fact, these delays, when reasonable, form part of a just defence, which can never be refused. We have just said that in summary causes the judge should endeavor to pre- vent all avoidable delays. Hence, also, it is ordained in the Instruction of the S. C. de P. F., dated July 20, 1878, that in this country the bishop shall send to the accused, together with the citation, a full and specific statement of the charges," and that the accused shall come befoi^e the Commission with his defence already prepared, at least as far as possible, so as to avoid all unnecessary delay. When, therefore, a defendant, in a trial before our Commissions of Investigation, finds it useful, even after the prosecution has closed, — i.e., where the bishop's official has read the state- ment /r^* causa and submitted his proofs,— to ask for a delay, or even several delays (t'.^., where the defendant has not been fully informed beforehand of all the charges against him), to prepare more fully for his defence, his request should be granted by the Commission. 1088. III. Delays granted from the sentence to its execution inclusive. — These delays are of three kinds: i. Those which are given to enable the parties — prosecution and defence — to prepare their final summing up [dilationes allegatoriae). For the judge (we speak always of the ecclesiastical judge), having heard all the testimony on both sides, should, before he proceeds to pass final sentence, ask the parties w^hether ' Clem. Saepe 2, de V. S. (v. ii). - lb. Glossa, V. Amputet, et v. Dilatorias. ^ Instr. cit., § 4, Per litteras. 230 Of the Ordinary Canonical Trial they wish to submit or say anything else ; and if either an- swers in the affirmative, a delay of thirty days is given him by the judge to prepare his final arguments.' This delay may be repeated three times. 2. Those which are granted to the parties to enable them to appear in court and hear the final sentence pronounced {dilationes defijiitoriae). 3. Finally, those which are conceded to enable the party condemned to execute or carry out the provisions of the sentence {dilationes executoriae.) ' These latter are allowed only in civil causes ; for in criminal causes the execution of the sentence is not usually delayed. Four months are generally allowed in civil causes to execute the sentence.' 1089. What are the effects of delays ? The chief effect is that, pending the delay, the office of the judge is inoperative, or wholly at rest, so far as concerns the matter in which the delay has been given, and nothing is to be done or changed in this respect until the delay has expired ; ' any attempt to the contrary being ipso jure null and void.^ Finally, we observe that delays are given, as a rule, at the request of the litigants ; though the judge may and should grant them him- self ,ex officio, when he deems it necessary. Moreover, no delay whatever should be granted by the judge to either the prosecution or defence, except in the presence of both par- ties, and upon due proof being given that there is sufficient reason for the delay.* 1090. Of judicial holidays. — Speaking on the subject of judicial delays, we subjoin a few remarks in regard to the so-called feriae, which partake of the nature of judicial de- lays. V>y feriae are here meant those days on which judicial acts or proceedings are forbidden, and therefore delayed. They are divided into sacred and profane. The former are those which are instituted by the Church for the worship of ' Auth. Jubemus, C. de Jud. (iii. i). « Schmalzg., 1. c, n. 21. » Cap. 26, de Off. del. " L. 3. C. de Dilat. (iii. 11). * Reiff., 1. c, n. 77. * L. I, 4, C. de Dilat.(iii. 11); cf. Schmalzg., 1. c, n. 12. in Criminal Causes, 231 God and in honor of the saints. Such are the Sundays and hoKdays of obhgation.' The latter are those which are established by the secular power for the temporal wants or benefit of the people. Thus, according to the Roman law, the time of harvest — usually from July to August — and the time of vintage — generally from September to October — were judicial holidays in the secular courts* — i.e., they were days on which no one could be compelled to go to trial, lest he should thus be disabled from reaping his har- vest.' These profane or secular judicial holidays naturally vary in different countries. Our legal holidays in the United States partake of the character of judicial holidays. 1091. What are the fcriac or holidays on which judicial proceedings are forbidden in ecclesiastical courts ? i. All the sacred holidays ; that is, all the holidays of obligation established by the Church — namely, all Sundays and holidays of precept." The law of the Church is that on these daj^s all judicial proceedings are, as a rule, so strictly forbidden, that if they nevertheless take place they are ipso jure null and void, even though the litigants should consent to them. We say, as a rule ; for where necessity iiicecssitas) or justice {pietas) demands otherwise," judicial proceedings can take place, in ecclesiastical courts, on those days." 1092. 2. Even on all profane holidays, — that is, holidays instituted formerly by the civil government of the Roman empire, — judicial proceedings were forbidden by the Church, in her courts, under pain of nullity. On certain profane holidays, however, the Church allowed judicial proceedings in her courts, provided the parties consented.' For there were two kinds of legal holidays : {a) Those instituted for ' Cap. 9, de Feriis. (ii. 9); L. 2 et 3, C. de Dilat. * Cf. Schmalzg., 1. 2, t. 9. n. 17. ^ L. i, 3 ff. de Feriis; L. 2, C. de Feriis. * Cap. Conquestus 5, de Feriis (ii. 9); Sciimalzg., I. 2, t. g, n. 6. * Cap. Conquestus cit. ; ib. Glossa, vv. Necessitas, pietas. * Reifif. , 1. 2, t. 9, n. 36. ' Cap. Conquestus cit. 232 Of the Ordinary Canonical Trial the wants or direct utility of the people — namely, the har- vest and vintage season. On these days judicial proceedings could take place validly if the parties consented, since these days were established for their direct benefit, and could therefore be given up by them, {b) Those which were estab- lished to commemorate some public event — v.g., a battle won. On these latter legal holidays judicial proceedings could not take place, even by consent of the litigants. Whether, at present, the Church adopts the legal hohdays of the various countries of the world as judicial holidays for her courts, we do not feel competent to decide, though we feel inclined to answer in the affirmative. 1093. The above rules concerning ferine or judicial holi- days apply also to summary trials or proceedings, though with regard to the latter trials, Pope Clement V. allows that they may take place, and that without the consent of the liti- gants, on the rustic holidays, or during the harvest and vin- tage season, but not on other legal holidays, nor on the holi- days of the Church.' From all this it seems to follow that proceedings or trials before Commissions of Investigation in the United States, though of a summary character, cannot take place on Sundays and feasts of precept, except in the cases of necessitas or pietas spoken of above. Nay, it is even doubtful whether they can take place on our legal holidays. § 5. Order to be observed by the Ecclesiastical Judge when, in the Hearing of the same Cause, several Questions come up for Decision {De Ordine Cognitionum). 1094. When the contestation has taken place, and the oath of calumnia been administered, and the usual delays granted, the parties proceed to prove their case. In other words, the taking of the testimony to prove the cause is the ' Clem. Saepe 2, de V. S. (v. 11); Reiff., 1. c, n. 44. 171 Crtmz7ial Causes. 233 next step of the trial. However, as we have seen, it will frequently happen that, prior to the submitting of testimony in the main cause, a defendant makes various exceptions, which in turn often give rise to two or more incidental questions or causes, to be decided by the judge in the same cause. Again, the defendant may bring a counter-com- plaint against the plaintiff ; and thus two main or principal causes, connected indeed, but yet distinct, present them- selves for decision. These questions must be decided or disposed of in a certain order; otherwise confusion will fol- low. We shall therefore follow the order of the decretals, and treat of this matter before we proceed to discuss the taking of testimony in the main cause. 1095. Q. Which of the several questions or causes arising from the exceptions of the defendant or otherwise, during the same trial, must be discussed or decided first by the judge ? A. We have already in part answered this question inci- dentally when we spoke of exceptions,' especially that of recusation,' and of counter-complaints.' We shall now add the following: i. That question or cause should be first tried and discussed or decided upon the decision of which the other one depends.* Among the various illustrations of this principle we will mention that given in the cap. 5, de Renunciat. Here Pope Clement III. (an. 1189) lays down the rule, that where an ecclesiastic asks to be rein- stated in his benefice, and where the opposing party objects to the reinstatement on the ground that the plaintiff had vol- untarily resigned the benefice, the ecclesiastical judge should first take cognizance of the question as to whether the resignation had really taken place, and that voluntarily, not through fear or force. For it is evident that if the objection were sustained — i.e., if it were shown that the plaintiff had ' Supra, n. 1031. * lb., n. 1035 sq. ^ lb., n. 1054 sq. * Cap. I, 3, de Ord. cogn. (ii. 10); L. 16, 17, 18 ff. de Except. 234 Of the Ordinary Canonical Trial voluntarily resigned — he could no longer ask to be rein stated.' For the same reason, all exceptions, whether dila- tory or peremptory, should be tried before the main cause — with this difference, however, that dilatory exceptions must not only be tried, but also decided, before the main cause ; while peremptory, according to many canonists, must indeed be tried, but need not be decided, before the principal cause." 1096. 2. When a criminal and a civil cause come together, and each is to be tried separately as a main cause, not merely as an incidental cause or counter-charge, the rule is that the criminal cause, being the more important, is to be tried before the civil.' We say, and each is to be tried sepa- rately as a main cause ; for when a criminal cause comes up incidentally in a civil cause, — v.g,, by way of exception, — and vice versd, when a civil cause arises incidentally in a criminal cause, then the judge should try both causes simultaneously, and decide them by one and the same sentence.* 1097. 3. In the question of spoliation {causa spolii), namely, when the defendant, or person against whom the plaintiff has brought an action, in turn complains or objects that he has been spoliated {spoliatus) by the plaintiff, that is, unjustly stripped or deprive^ of some property or right, — it is asked whether this objection should be tried and decided first, that is, before the action brought previously by the plaintiff ? Before answering, we shall give a brief explana- tion of what is here understood by spoliation. By spolia- tion {spolium, spoliatid) we here mean the most grievous crime by which a person is despoiled {spoliatus) or stripped of something belonging to him.^ Canonists agree that this is a most grievous crime, and exceedingly odious in the eyes of the law of the Church. Schmalzgrueber calls it gravis- simum et frequentissimum f acinus. ' Reiff., 1. 2, t. 10, n. 8. « Schmalzg., 1. 2, t. 10, n. 7. ^ L. 4, C. de Ord. Judic. * L. 3, C. de Ord. jud. * Devoti, 1. 3, t. 11, § 6. i7i Criminal Causes. 235 1098. Two things are required to constitute spoliation — namely, first, that a person has had possession or quasi-pos- session of a thing ; secondly, that he has been unjustly de- prived of it.' Spoliation, as here understood, is committed not merely when a person is dispossessed violently or by force, but also when he is deprived of a thing by deceit, fraud, or without just cause, or arbitrarily.^ Thus an eccle- siastical judge — v.g., a bishop — is guilty of spoliation if he deprives an ecclesiastic of his office, parish, or benefice with- out a manifest and sufficient cause, established by due trial or judicial proceedings.^ 1099. Again, spoliation is committed, not only in corporal or temporal goods, movable and immovable, but also in spiri- tual things — that is, in rights. Hence spoliation, as here understood, is taken in its evident signification, so that who- ever is unjustly stripped of a thing or right possessed by him is considered as despoiled or .y/(?/z^/z^.f. Thus a husband who is rashly deserted by his wife,* as also a wife who is unjustly put away by her husband,^ is said to be despoiled — namely, of the respective marriage rights. In like manner, as we have already seen, an ecclesiastic who is unjustly re- moved from his office, parish, or benefice, or even unjustly obliged to resign it, is regarded as despoiled.* Thus, also, a rector in the United States would be despoiled, at least in a broad sense, in the eyes of the law of the Church if he were dismissed without trial, as prescribed by the Instruction of the Propaganda, dated July 20, 1878, or even transferred against his will, without grave and sufficient cause.' 1 100. Having explained what is meant in canon law by ' Cap. 10, de Off. jud. del. (i. 2g); cap. i6, de Rest. spol. (ii. 13). * Can. 3, C. 3, Q. i; Miinchen, 1. c, vol. i., p. 354. 'Cap. 7, de Rest. spol. (ii. 13). * Cap. 8, de Rest. spol. (ii, 13). * Cap. ID (ii. 13). 8 Cap. 2, 3, 7, de Rest, spol.; cf. Devoti, 1. c, § 7, nota 2. ' Cf. Instr. S. C. de Prop., 20 Jul., 1878, § Quod si; S. C. de Prop. Fide, Ad Dubia, § i., Episcopi vero curent. 236 Of the Ordinary Canonical Trial spoliation, we now return to the question put above under No. 1097. Where a plaintiff, or the prosecution, institutes an action or judicial proceedings against a defendant, — v.g., where a bishop prefers criminal charges against an eccle- siastic for the purpose of punishing him, — and the latter, i.e., defendant, interposes the plea or exception of spoliation, that is, complains that the plaintiff, v.g., the bishop, has despoiled him, or unjustly removed him from his place, should this plea or exception of spoliation be tried and de- cided first — i.e., before the action brought by the plaintiff? Before answering, we observe that it is plain that we speak here of the exception of spoliation as coming up incidentally in a cause on trial, and not as a separate and independent cause or action. iioi. We now answer. We must distinguish. The de- fendant in the case interposes the plea of spoliation either in the form of an exception, for the purpose of nonsuiting the plaintiff, — i.e., of throwing his case out of court, — or in the form of a counter-action or counter-complaint, having for its direct object the restitution of the thing taken by the plain- tiff, or, speaking, v.g., of the removal from a parish, the rein- statement of the person despoiled.' In the first case, the defendant making the exception of spoliation must be heard first, and having proved his exception, is not obliged to an- swer the plaintiff or prosecution until he has been reinstated by or received restitution from the latter.* This holds true even where the plaintiff's complaint was that he was de- spoiled by the defendant. For the position of a defendant in a cause is always more favorable than that of the plaintiff or prosecution." 1 102. We said, first, and having proved the exception ; for, so far as concerns the exception, the defendant making it * Cap. 2, de Ord. cogn. (ii. 10). * Cap. 2, 4, de Ord. cogn. (ii. lo). *L. 125 ff. de Reg. jur. (50. 17); cf. Schmalzg., 1. 2, t. 10, n. 15. in Criminal Causes. ■6/ becomes the plaintiff, and therefore assumes the burden of proof. The exception of spoliation must be proved, accord- ing to the common law of the Church, within fifteen days after it has been made.* We said, secondly, the defendant is not obliged to answer tmtil he has been reinstated. This is the only direct effect of the exception of spoliation. For an exception has for its direct object simply the quashing or delaying of the complaint, and nothing else.^ Hence restitu- tion or reinstatement does not follow directly, but only in- directly ; in other words, the plaintiff must first reinstate the defendant, who excepts and proves spoliation, before he can continue or pursue his action, and thus reinstatement becomes the conditio sine qua non of his right to prosecute or sue the defendant. 1 103. In the second case — namely, where a defendant interposes the plea of spoliation against the plaintiff in the form of a counter-charge, and for the direct purpose of being reinstated, and where the plaintiff's action is also for spolia- tion — two main causes or mutiiae petitiones arise, and both causes must be tried simultaneously, and decided by one and. the same sentence. Note we said, and where the plaintiff's action is also for spoliation — i.e., where a plaintiff charges a defendant with spoliation, and the latter in turn makes a counter-charge that he was also spoliated by the plaintiff. Both actions in the case — that is, the action of the plaintiff and the counter-action of the defendant — must be for spolia- tion.' For if the action of the plaintiff is alone for spoliation, and that of the defendant for some gravamen other than spoliation, or if, vice versa, the counter-action of the defendant is for spoliation and the action of the plaintiff for some injury other than spoliation, then the complaint of spoliation must be adjudicated first. ' Cap. I, de Rest, spol., in 6° (ii. 5). ' Cap. 2, cit. ; Reifif., 1. 2, t. 10, n. 19, * Ex cap. 2. de Ord. cogn. (ii. 10). 2 3^ Of the Ordinary Ca^tonical Trial 1 104. Besides the above two ways, there is a third way of complaining of spoliation — namely, where a person who has been spoliated prefers the charge of spoliation by way of a separate and independent action or cause, and not merely incidentally by way of exception or counter-action. What is the mode of procedure in this case ? The general rule is, that the person spoliated must be reinsta,ted r receive restitution before all else, provided it is really shown or lawfully proved by him that the spoliation has taken place.' We say, before all else ; hence the person spoliated is not obliged to answer, nor can the judge hear any objection or counter-complaint (except, as we have just seen, that of spoliation) interposed by the defendant or spoliator until the complainant has been reinstated. This holds, as a rule, even when the objection interposed by the defendant charged with spoliation is that the complainant had no valid title or claim to the thing, or, speaking of benefices, that he was not canonically appointed,'' or that he is guilty of crime.' Hence, generally speaking, none of these objections or complaints can be heard or tried, until the person spoliated has been fully reinstated, or received restitution.* 1 105. An apposite illustration of this teaching is given in the decretal Conquerente 7, de Rest. spol. (ii. 13). A certain ecclesiastic named Renaldus complained to Pope Alexan- der III. that the Archbishop of Canterbury had deprived or dismissed him from his parish without due trial or judi- cial proceedings-^«rw ordine non servato. The archbishop, it seems, sought to justify himself on the ground that the ecclesiastic in question had been guilty of crime. The Pope, however, ordered that if the ecclesiastic's complaint were true, the archbishop should at once reinstate him in his ' Can. I, 2, 3, C. 3, Q. i; cap. 4, de Ord. cogn. ; cap. 5, 6, 7, de Rest. spol. (ii. 13); L. I, § 31 ff. (xliii. 16). « Cap. 5, de Rest. spol. (ii. 13). 2 Cap. 6, de Rest. spol. * Cap. 5, 6 (ii 13); Schmalzg., 1. 2, t. 13, n. 27, 28. in Criminal Causes, 239 parish, and allow him to govern it in peace ; that only after the reinstatement had taken place could the archbishop, if he had anything- against the cleric, prefer his charges before the Pope's delegate in the proper judicial manner.' 1 106. This decision shows two things: i. That the rule above given — to wit : A person spoliated must before all else be fully restored to his rights — applies not only to corporal or temporal possessions, but also to spiritual things, such as parishes, benefices, ecclesiastical pensions or annuities, the right of electing ecclesiastical superiors, bishops, etc. 2. That this rule holds not only when a person or an ecclesi- astic has been despoiled by a private person, but also when he has been spoliated by his bishop proceeding without observing the proper judicial forms — v.g., when he is de- prived of his parish without sufficient cause duly established by a proper trial.* 1 107. We said 2Lho\e,^ the general rule is; for there are some exceptions. Thus, speaking of spiritual causes, this rule — namely, that a person spoliated must before all else be reinstated — does not apply, i, where it is notoriotcs that the person or ecclesiastic spoliated of his benefice had no valid title to it — v.g., because he is a heretic, and therefore inca- pacitated for any benefice." 2. Nor even where there is a strong presumption that he has obtained his ecclesiastical benefice without any title at all, or with a vicious one. For by reinstatem.ent in these cases a person would be put in possession of a benefice without a canonical appointment, against the Regula I. de Reg. jur., in 6° : '' Beneficium eccle- siasticum non potest licite sine institutione canonicaobtineri." In both these cases the person spoliated would have to prove his title before he could be reinstated. 3. Nor does the rule stated apply in cases — whether they regard matters strictly ' Cf. Reiff., 1. 2, t. 13, n. 56. » Reiff., 1. 2, t. 13, n. 55. 3 Supra, n. 1104. * Schmalzg., 1. c, n. 67. 240 Of the Ordinary Canonical Trial spiritual, or any other matter whatever falhng under the competence of the ecclesiastical judge — where the person spoliated waives his right — that is, consents to the non- enforcement of the rule. For the rule was made in favor of the person spoliated, and therefore can be renounced by him if he chooses.' And this is true, even when the person spoliated consents, not expressly, but only tacitly — v.g., by not protesting, when the judge allows the spoliator to go with his case, before he reinstates the person spoliated." § 6. Examination of the accused, also in the United States. 1 108. After the preliminary questions — that is, the various exceptions — have been decided, and the contestation has taken place, and the usual delays have been granted, the chief part of the trial, the taking of testimony, begins. Some- times, however, as we have seen, the plaintiff or prosecution (with us, the bishop's official appointed to act as the prose- cution ') is released, either in whole or in part, of the neces- sity of producing proofs, by the confession of the accused — that is, by his admitting, in whole or in part, the charges and specifications {positiones, articuli, capitula) upon which he is examined or interrogated by the judge, either ex officio or at the instance of the prosecution. Where the trial is by way of inquisition, the charges and specifications, together with the proofs obtained in the preliminary investigation, should be shown the accused, also with us, as soon as he comes into court upon due citation, unless they have been made known to him beforehand. He is then asked by the judge whether he admits or denies them. This interrogation of the judge, and the negative answer of the defendant, constitute, as we ' Ex cap. 12, de For. comp. (ii. 2); ib. Glossa, v. Pacto privatorum; Reiff., 1. c, n. 73. 9 Cap. I, de Rest. spol. (ii. 13). 3 Instr. S. C. de P. F., 20 Jul., 1878, § 2, Re ad. in Criminal Causes. 241 have seen/ in formal canonical trials by way of inquisition, the contestation of the cause." 1 1 09. This examination of the accused, as made prior to the taking of the testimony, and for the purpose of relieving the prosecution of the necessity of proving their case, need not take place in summary criminal trials, nor in proceed- ings before our Commissions of Investigation. We say, need not ; for it may take place, at this stage of the trial, even in proceedings before our Commissions of Investigation, provided, as we shall see, there are strong proofs of guilt, warranting such examination. Apart from this, however, the law with us is, that the accused, after having made or read his defence, and during the time he produces his proofs, is subject to cross-examination by the members of the Commission, through its president.' mo. We therefore ask: Is the accused (we speak of course of criminal causes), when examined by the judge (with us, either by the bishop or, as the case may be, by the Commission of Investigation), whether in the beginning of the trial or during its progress, bound to confess his guilt? We must distinguish between three cases — namely, {a) when it is apparent that the judge examines lawfully ; {b) unlaw- fully ; {c) when it is doubtful whether or not he examines law- fully. Where the judge examines unlawfully, it is certain that the accused is not bound to answer or confess his guilt, if he be guilty. For the judge in the case exceeds the limits of his authority, and consequently acts simply as a private person. Now when does the judge interrogate unlawfully or non scrvato juris or dine ? Chiefly in these cases: i. Where no public report, or at least no imperfect proofs, of the guilt of the accused exist, or where such common fame or imperfect proofs are not juridically established." Hence the judge can- ' Supra, n. 1068. * Cf. Bouix, de Jud., vol. il , pp. 192, 20i. ^ Instr. cit., § 7. * Stremler, 1. c, p. 166. 242 Of the Ordinary Canonical Trial not interrogate the accused in regard to occult crimes,' — i.e., those crimes which are not public, either by common fame, or quasi-public, that is, provable in court.' For occult crimes should not be made public* 2. Where the judge does not make known to the accused the proofs, suspicions, witnesses, depositions, etc., that exist against him. For in this case the accused cannot know whether the judge inter- rogates juridically — i.e., lawfully — or not, and therefore is not bound to answer. For he is obliged to answer only when it is certain that the judge interrogates lawfully. Moreover, the judge, by interrogating the accused unlawfully, commits a mortal sin, being the cause of the latter's defamation." 1 1 1 1. Where it is doubtful whether the judge interrogates lawfully or not, the accused is not bound to confess his guilt or to answer ; for where there is a doubt, the axiom holds : " Melior est conditio possidentis." * 1 1 12. Where, however, it is apparent or certain that the judge interrogates lawfully or servato juris or dine, — v.g., where the public report, or at least the half proof of guilt, is estab- lished, — the general opinion of canonists is that the accused is bound to answer and confess his guilt, at least if the penalty to be inflicted is not very serious. But what if the penalty is of a grave character — v.g.., loss of entire property, or, in the case of an ecclesiastic, dismissal from his parish, which is the means of his support, and is therefore equivalent to loss of entire property ? There are two opinions : one affirms, the other denies, that the accused is bound to answer or confess his guilt. The negative opinion, as explained by Stremler," is, that unless the guilt is fully proven, or at least susceptible of being completely proved, th2 accused is not bound to an- swer or confess his crime, even where the judge interrogates lawfully. This opinion is probable, and may certainly be ' Reiff., 1. 2, t. 18, n. 156. « Cap. Qualiter et quando, de Accus. ' Can. Erubescant, Dist. 32. * Reiff., 1. c, n. 159. ^ Schmalzg., 1. 2, t. 18, n. 3. • L. c, p. 168. in Criminal Causes. 243 followed by confessors, especially where the accused cannot be persuaded to confess his guilt. The chief reasons upon which this opinion is based are : {a) that no human law, such as the command of the judge, binds under grave inconve- nience, {b) Again, nobody is obliged to testify against a relative, if a serious evil should be the consequence. Now, no person is a nearer relative to one's self than such person is to himself, {c) Finally, it would seem repugnant to the very law of nature to oblige an accused party to complete, by his confession, the proofs of his own guilt, and thus become instrumental in inflicting upon himself a grave penalty.* 1 1 13. On the other hand, those who hold the affirmative, which is the more probable opinion,^ contend that the judge has the right, nay, the duty, of interrogating the accused, and of finding out by all lawful means who are the guilty parties, especially as the good of the Church requires crimes to be punished ; that therefore the accused has the correlative duty to answer and confess his guilt (if he is guilty), when juridically or lawfully interrogated by the judge, even though a grave punishment should be the result. However, the supporters of the negative opinion answer, that from the right and duty of the judge (we speak of the ecclesiastical judge) to interrogate, the duty of the accused to confess his guilt does not follow, just as it does not follow that because the judge has a right to imprison a defendant the latter has no right to evade imprisonment if he can. 1 1 14. However, even those who hold the affirmative admit that the accused is not bound to answer ad mentcni judicis or confess, if the offence was but a material one — that is, if the accused was excused from mortal sin, owing, v.g., to want of deliberation. They concede, moreover, that the accused need not confess an external circumstance or occur- rence, if this avowal would cause him to be suspected of a ' Fermosin. Rubr. de confessis, Q. 5, nn. 18, ig. Col. Allobr., 1741. * Schmalzg., 1. 2, t. 18, n. 3. 244 Of the Ordinary Canonical Trial crime of which he is otherwise innocent. Thus the accused who is asked whether at such an hour he was in such a place, may deny it (even though he was there) if he foresees that from his affirmative answer the judge will infer that he has committed the deed.' § 7. Manner of submitting the Proofs in Ecclesiastical Courts, also in the United States — TJie Trial Proper — Mode of con- ducting the Prosecution and the Defence. 1 1 15. When the accused denies the charges and specifi- cations, either wholly or at least substantially, it becomes necessary for the prosecution to produce before the judge whatever proofs he may have in support of his charges. These proofs, as we have seen, consist of instruments, docu- ments, etc., and chiefly of the depositions of witnesses.'' It is scarcely necessary to remark here, that the burden of proof rests upon the prosecution. Consequently, where the latter (also in the United States) fails to submit good and sufficient proofs, the defendant may simply content himself with deny- ing the charge. He need not prove his innocence, as that is presumed, until the contrary is clearly established. 1 1 16. We have already dwelt at sufficient length upon the nature and force of the various judicial proofs.' Here we shall confine ourselves to the manner in which both the prosecution and defence produce their proofs for or against the cause. As the testimony of witnesses constitutes the chief and most important kind of proofs, we shall here speak mainly of the manner in which witnesses are produced and examined in court. Much has been already said on this head above, under Nos. 836 sq., to which we refer the reader. It only remains for us to add a few remarks. 1 1 17. Mode of producing and examining witnesses, whether ' Stremler, 1. c, p. 168. « Supra, n. 815 sq. ' Supra, n. 820 sq. in Criminal Causes. 245 for or against the cause, where the common law of the Church obtains on this head. — Witnesses, as we have seen/ must be examined one by one, and apart from each other. They can, at least, if the judge deems it proper or where it is the cus- tom, be confronted with the party against whom they testify ; in other words, the opposite party, whether it be the prose- cution or defendant, can be allowed, at least, at the discre- tion of the judge, to be present at the examination. We say, at least; for, as we have shown above,'' there are two opin- ions: one denies, — and this is the common opinion, — the other affirms that the common law of the Church permits the con- frontation of the witnesses with the party against whom they testify. Owing to this fact, the custom was introduced into some ecclesiastical courts of confronting witnesses with the opponent — at least where the judge thought it proper. In the larger number, however, of these courts the more com- mon opinion of canonists was followed, and no confrontation was allowed, except in extraordinary cases. As both modes may be and are followed," we shall separately discuss the manner of examining the witnesses in both cases. 1 1 18. Mode of examining the zvitnesses, where the witnesses are not confronted with the party against whom, they are testify- ing. — Observation. — Where the defendant or accused is ex- cluded, i.e., not confronted with the witnesses, the prosecutor must also be excluded — i.e., he must not be allowed to be pres- ent at the examination of the witnesses. Hence also, in pro- ceedings before our Commissions of Investigation, the bishop's official who acts as promoter or prosecutor cannot be allowed to be present at the examination of witnesses unless the same right is also conceded to the defendant. Having made this observation, we now proceed to discuss the question. Where the litigants — i.e., the prosecutor and defendant — are excluded from the examination of the witnesses, the prosecutor, before ' Supra, n. 839. * Supra, n. 838, 839. ^ Cf. Craiss., n, 5714, 5944, 5945. 246 Of the Ordinary Canonical Trial the beginning of the examination, submits to the judge a written list of the questions or interrogatories on which he wishes the judge to examine the witnesses for the prosecu- tion, and the defendant in like manner hands into the judge a similar list of questions on which he requests the judge to cross-examine the witnesses. 1 1 19. In order that the accused may be able to know what questions to hand to the judge for cross-examination, he must of course know the questions submitted by the prosecutor. Hence the judge, after having received the prosecutor's interrogatories for the direct examination, com- municates them to the accused, so as to enable him to frame his cross-questions and hand them to the judge. This applies also to proceedings before Commissions of Investiga- tion in the United States, when the Commission does not think it prudent or when the witnesses are unwilling to allow the confrontation.* 1 1 20. When both the prosecutor and the defendant have handed in their interrogatories or questions the judge pro- ceeds to examine the witnesses, first on the questions and cross-questions submitted by the prosecutor and defendant, and then on the facts of the case in general. On the conclu- sion of the examination he proceeds, on a day fixed for that purpose, to the publication of the entire testimony and pro- ceedings in the case : that is, he causes the testimony of the witnesses examined by him, as just described, together with all the other evidence and acts in the case, to be read before the parties — prosecutor and defendant, and gives the accused a copy of the entire evidence and all the acts, so as to enable him to prepare for his defence. 1 121. This is c?i\\edi publicaiio attestatiomnn — i.e., the com- munication of the prosecution's evidence to the accused." It is also termed publicatio processus offensivi, for the reason that • Instr. S. C. de P. F., 20 Jul., 1878, § 12, Consentientibus. * Craiss., n. 5939. in Criminal Causes. 247 hitherto or up to the present stage of the proceedings the prosecution has mainly acted, and the defence has as yet not begun, properly speaking, and the publication of the evidence is intended chiefly for the benefit of the accused. Hence the judge, if requested, must give the accused a copy of the entire proceedings or acts, — i.e., of all the testimony and minutes of the case, — so as to enable him to prepare for his defence. The witnesses for the defence are examined in the same way, as we shall see. 1 122. Mode of procedure, according to the common law of the CJmrch, when the litigants — the prosecution and defence — are allowed to confront the witnesses. — The above is the mode of procedure when the litigants are not allowed to confront the witnesses. Where, however, the contending parties are permitted to be present at the examination and to hear what the witnesses say, the prosecutor and the defendant may themselves or personally examine the witnesses, though as a rule only through the judge. We say, though . . . only tJirough the judge ; for, by the common law of the Church, witnesses must be examined and cross-examined by the judge himself, and not directly by the prosecution or defence, or their respective advocates.' We say, moreover, as a rule ; since, where there is a just cause, the judge may allow or depute others — v.g., the parties themselves or their advocates — to examine the witnesses. This holds also of the examina- tion of witnesses in the United States before Commissions of Investigation.^ From what has been said, it follows as a mat- ter of course, that in this mode of examination the parties or litigants need not hand the judge a hst of their questions and cross-questions, as they do when they are excluded from the examination, or not allowed personally to examine the wit- nesses. It follows, moreover, that a publication of the testi- ' Ex Nov. 60, cap. 2; Schmalzg. , 1. 2, t. 20, n. 93. 2 Cf. Instr. S. C. de P. F. cit., §§ 11, 12. 248 Of the Ordinary Canonical Trial mony, etc., is scarcely necessary in the case, as the parties, having been present at the examination, are fully aware of what transpired. However, the defendant should be given a copy of the depositions and proceedings if he requests it, as this will the better enable him to prepare for his defence. 1 123. We must here call attention to certain things which are peculiar to the examination of witnesses when the trial is by way of absolute inquiry {ex mcro officio) — i.e., where there is no promoter or bishop's official, or other person to prefer and prove the charges, and where, consequently, the bishop or judge must himself collect and prefer and establish the charges. In this case, the judge, before begin- ning the trial, — i.e., before proceeding to the citation of the accused, — should first be sure that the requisite defamation or common fame exists, as without such fame he cannot even validly cite the accused ; he should also gather all the information, facts, and proofs possible in the case, so that, before he cites the accused, he may have in his possession full, or at least imperfect, proofs of the guilt. The fuller this preliminary information or trial is, the better will it be.' 1 124. When the bishop or judge has completed this in- quiry, which is called the preliminary inquiry for the judge's information (^processus inforniativus, processus pro infonnatione curiae), and finds that the evidence in hand warrants it, the citation is issued. When the accused appears in obedience to the citation, he should at once be informed of the charges and specifications, and also of the proofs existing against him. If he acknowledges his guilt, sentence may be pro- nounced forthwith. If he denies it, and moreover refuses to declare that he accepts or regards the witnesses, as examined in the preliminary investigation, as lawfully examined,* the bishop or judge must formally and in court examine all the witnesses over again, and that in the manner and with the » Bouix, de Jud., vol. i., p. 154. » Craiss., n. 5942. in Criminal Causes. 249 formalities described above.' Upon the conclusion of this examination, the publication takes place, as above stated. Where the accused denies the guilt, but is willing to accept the examination of the witnesses in the preliminary investiga- tion as legitimate, or where he has been allowed to be present at the preliminary investigation and examination of the wit- nesses, and cross-examine them, no repetition of the wit- nesses' testimony need take place ; but a copy is simply given the accused of the entire testimony and proceedings or acts, to enable him to prepare for his defence. 1 1 25. The preliminary investigation or inquiry, here spoken of, takes place, only when the judge proceeds by way of inquiry and denunciation, but not when he proceeds by way oi accusation. Because in the latter case the accuser binds himself to produce the necessary proofs. Hence the judge is reheved from the necessity of finding sufficient proofs of guilt, so as to warrant him to proceed to the citation. Consequently, in the trial by way of accusa- tion, the witnesses are not examined before the citation, to see whether there is common report, and sufficient proof of guilt to warrant the citation. This examination takes place only in the usual course of the trial — i.e., after the citation of the accused. 1 126. In connection with this matter, we observe that what has been said of the publication of the testimony of the witnesses applies equally to all the other kinds of evidence or proofs submitted by the prosecution. In other words, whatever evidence or proof is advanced by the prosecution must be communicated to the defendant for his defence. Thus if instruments, documents, or letters are submitted as proofs, a copy of them must be furnished to the defendant." 1 127. As this communication of all the evidence of the prosecution is a necessary condition and part of a legitimate * Supra, n. 836 sq. ; n. 1117 sq. ; n. 1122 sq. ^ Cap. II, de Prob. (ii. 19); Miinchen, 1. c,, vol. i., p. 273, n. 7. 250 Of the Ordinaiy Canonical Trial defence, and therefore forms substantially part of all trials, formal or summary, it must also substantially take place in trials in the United States as conducted before our Commis- sions of Investigation. This is apparent from the following words of the Instruction of the S. C. de P. F., of July 20, 1878:' "Per litteras, etiam rectorem . . advocet " (epis- copus) " exponens . . causam ad depositionem moventem, per extensum." The same is also inferable from these words of the above Instruction : " Facta ipsi " (reo) " plena facul- tate ea omnia in medium afferendi . . quae ad propriam defensionem conferre possunt." "^ For this full liberty of defending himself contains the implication that the accused shall be fully informed as to the evidence that stands against him. Otherwise, how defend himself 1 Here we note, that not only the depositions but also the names of the witnesses must be communicated to the defendant, also with us, except of course where the confrontation has taken place. 1 1 28. Manner of conducting the defence (^processus dcfen- siviis) — i.e., examining witnesses, etc., for the defence — according to the principles of the common law of the Chnrch. — After the publication of the evidence, as above stated, the real defence, or \}ci& processus defensivus, begins, properly speaking.' Not only positive and human, but also natural and divine law, gives the accused the right to defend himself." It is, more- over, a principle of the Roman or civil law, incorporated into the canon law, that whatever is allowed the prosecution or plaintiff must a fortiori be conceded to the defence or the accused. " Non debet," says the Roman law, " licere actori, quod reo non permittitur."' And again: "Cui damns actiones, eidem et exceptionem" (defence) " compet- ere multo magis quis dixerit."' Not only, therefore, are the prosecution and defence placed on a footing of perfect > § 4, Per litteras. * lb., § 7, Deinde. * MUnchen, 1. c, vol. i., p. 279, n. 14. * Bouix, de Jud., vol. ii., p. 222. *L. 44 ff. de Reg. jur. (50. 17). « L. 156 ff. de Reg. jur (50. 17). in Criminal Cmises. 251 equality, but the defence must even be given the preference or advantage. Consequently, as the prosecution has full liberty to prove its charges, so must the defendant, a fortiori, have the fullest liberty to disprove them and defend himself. Thus the Instruction of the S. C. de P. F., of July 20, 1878, applying these principles to the United States, says : " Facta ipsi " (rectori missionario seu reo) ''plena facultate ea omnia in medium afferendi . . quae ad propriam defensionem con- ferre possunt.'" 1 129. How, then, is the defence to be conducted? The accused has the right (also with us, as is expressly stated in the citation just given from the Instruction of 1878) to pro- duce, and the judge is obliged to hear and examine, all argu- ments, documents, witnesses, and proofs whatsoever, that the accused wishes to produce in his defence. For this purpose, the accused, either in person or through his advo- cate, first draws up a written outline of the defence, — i.e., a written statement setting forth the various heads or points of the defence {articiili defensorii), — and promising to pro- duce the requisite witnesses, documents, etc., in proof of each and every head or article of the defence. Next, this writing is given to the judge on the day set down for the defence, and it forms the basis and frame of the entire defence or defensive proceedings.'' 1 1 30. The following is a specimen of the manner in which this statement is drawn up by the defendant's advocate : I. That the crime was committed, not by the accused, but by a certain person called N. 2. That the accused was during such a month, or on such a day, and at such an hour at C, a village five miles distant from the place where the crime was committed, and remained at C, v.g., from 7 a.m. to 10 p.m. This defence is commonly called an alibi in our secular courts. 3. That N., one of the witnesses for the prosecution {pro causa), ' Instr. cit., § 7, Deinde. * Bouix, 1. c, p. 223. 252 Of the Ordinary Canonical Trial is under excommunication, a perjurer, infamous, an enemy of his client, etc. 4. That R., another witness for the prosecu- tion, belongs to a faction or party or cHque opposed to his cUent, and that after his examination he said he had stood well by his friend. 5. That Y., the accuser or plaintiff, is a drunkard, liar, etc. At the conclusion of these and other heads of the defence the advocate adds that he will produce the proper witnesses, documents, and other proofs, one after another, in succession, to prove each of the above articles or heads of the defence.* 1 131. After this written outline of the defence has been handed to the judge, the latter assigns the defence a day (either the same day, if the parties are ready, or another) on which they must begin to present their witnesses, documents, and other proofs, by which they wish to establish the above heads of the defence. If the witnesses for the defence refuse to come spontaneously, at the request of the accused, they should be summoned to appear by authority of the judge. On the day appointed, the accused or his advocate should produce their proofs in the following manner : He should take up the heads of the written defensive outline, one by one, in succession, and prove each one separately. When he has produced all the evidence in his possession — witnesses, letters, etc., — to prove the first head of the defence, he pro- ceeds to the next, proving it fully, and then to the third, and so on." The witnesses for the defence are examined in the same manner as those for the prosecution.^ The other proofs, such as letters, documents, submitted by the defence, are similarly examined. 1 1 32. As the defendant was allowed to cross-examine (usually through the judge, sometimes in person) the wit- nesses for the prosecution, and offer objections to the other evidence submitted against him, so also is the plaintiff or * Bouix, 1. c, p. 579. * Cf. Bouix, 1. c, p. 580. ' Supra, n. 837. in Criminal Ca^cses. 253 diocesan prosecutor {promotor fiscalis ; with us, bishop's offi- cial appointed to present the case to the Commission) now permitted to cross-examine the witnesses for the defence, either through the judge (with us Commission, or as the case may be, bishop) or in person, and reply to and endeavor to break down any other evidence that may have been pro- duced by the defence. To enable him (prosecutor) to do so, he must either be allowed to be present at the examination of the witnesses for the defence (where this privilege was granted to the defence), or informed of the interrogatories upon which they are to be examined. 1 133. To this replication by the prosecution {replicatio), the accused or his advocate may again answer {diiplicatio), and produce further proofs, such as witnesses, letters, etc., in support of his answer or rejoinder. In like manner, the prosecution has the right to reply to and try to overthrow the defendant's rejoinder, and vice versd ; and soon until both the prosecution and the defence have exhausted all their re- spective proofs or arguments.' In fact, in criminal causes no limit can be placed to the replies or presentation of testimony, etc., on the part of the defence. Of course the prosecution has a corresponding right always to submit rebutting testimony." 1 1 34. Summing up by tlic parties. — When the accused has finished his defence, and declares that he has no further defence to make, a da}^ (either the same day or another) is appointed by the judge on which the parties will sum up their case, and the judge pronounce sentence. On the day fixed, the parties — the plaintiff or diocesan promoter on the one hand, and the accused on the other, together with their i-espective advocates — having appeared in court, the defend- ant's advocate, or the defendant in person, if he wishes to conduct his own defence, is allowed to speak first and sum up the case. Speaking in general, the defendant or his ad- ' L. 2 ff. de Except, (xliv. i); Miinchen, L c, vol. i., p. 281. ■■^ Bouix, 1. c, vol. ii., p. 223. 254 Of the OrdiJiary Canonical Trial vocate should, in his speech, endeavor to show that from the evidence submitted during the trial it is clear, i, that the alleged crime was committed by nobody ; 2, that if it was perhaps committed, the fact was not sufficiently proved ; 3, that even admitting gratuitously that it had been com- mitted, it was shown on the trial that the defendant was not its author; 4, that even though it had not been sufficiently proved that the defendant was innocent, yet neither had it been proved that he was guilty ; for the trial had been con- ducted without the proper formalities, or the witnesses had made contradictory statements, or, in general, the proofs adduced were of little or no account, etc. 5. Finally, even though it had been conclusively shown that the defendant had committed the alleged crime, yet the offence was only a material, not a formal one, as it had not been proved that there was malice and premeditation. Hence the defendant must be declared not guilty.' 1 135. Next, the plaintiff or diocesan promoter (with us, bishop's official) is permitted to speak or sum up, either per- sonally or through his advocate. Then the defendant or his advocate may reply, and vice vcrsd. These speeches may continue as long as the judge thinks proper, or as custom allows. The last speech is always made by the defence. When the parties have finished summing up the case, the judge may proceed to pronounce sentence. 1 1 36. Mode of procedure in the United States, before Com- missions of Investigatioji, in the examination of witnesses and admission of proofs, both for the prosecution and the defence. — The course of the defence, as laid down in the Instruction of the S. C. de P. F., of July 20, 1878, is substantially the same as that of formal canonical trials above described. After the proscution — i.e., the vicar-general or other priest appointed by the bishop to act as diocesan prosecutor," or * Bouix, 1. c, p. 587. * Instr. cit , § 2, Re ad Consilium. in Criminal Causes. 255 his advocate — has read before the Commission of Investi- gation the written statement of the charges and specifica- tions, submitted the requisite evidence to sustain the charges, and answered the questions put by the Commission, the defendant or his advocate begins the defence properly speak- ing. We say, properly speaking ; for improperly or inci- dentally the defence runs through the whole trial, and is begun, v.g., already as soon as the accused cross-examines the witnesses for the prosecution. This, however, is only, as is plain, an incidental defence. The defence proper, with us, begins when the accused or his advocate reads before the Commission a written statement or answer to the charges preferred by the bishop's official." 1 137. This answer is drawn up and signed by the defend- ant's advocate, or by the defendant himself if he wishes to conduct his own case in person. It forms the basis of the entire defence, and should therefore be a complete outline of the defence, as above described.^ Next, either on the same day, or on a subsequent day or days fixed by the Commis- sion, the defence have the right to take up, one after another, the heads of their answer, and to present consecutively any proofs, such as witnesses, letters, etc., they wish, in support of each and every point or head of the defence, as given in the written statement read before the Commission, as above described." 1 1 38. This right cannot be limited by the Commission of Investigation. Hence the defendant or his advocate cannot be compelled to present his witnesses or documents, etc., to the Commission on the same day on which he reads his statement or general answer. Sufficient and proper time must be given him to produce his witnesses, etc., one after another, and without undue hurry or inconvenience. This is clearly implied in these words of the oft-quoted Instruc- ' Instr. cit., § 7, Deinde. ^ Supra, n. 1129-1131. ' Supra, n. 1131. 25^ Of the Ordinary Canonical Trial tion of July 20, 1878 : " Facta ipsi " (reo) " plena facultate ea omnia in medium afferendi, intra tempus tamen a Consilio determinandum, quae ad propriam defensionem conferre possunt." ' 1 1 39. The manner in which the defendant's witnesses are examined is the same as that in which the witnesses for the prosecution are questioned.' Now the latter are examined by the Commission, one by one, apart from each other, and first in the absence of the accused." Next, if the Commis- sion judge it prudent, and the witnesses consent, they are re-examined in the presence of the accused, who can cross- examine them through the president of the Commission.' Of course, when the witnesses are unwilling or the Commission deems it inexpedient to allow them to be confronted with the accused, it is apparent from what has been said that the lat- ter must be permitted to hand in to the president of the Commission, in writing, any questions upon which he wishes and requests the witnesses of the prosecution to be cross- examined by the Commission. 1 140. The witnesses for the defence are examined, as we have said, in the same or a similar manner. Hence they are examined first in the absence of the prosecution — i.e., the bishop's official appointed for this purpose, or his advocate ; " and only when the Commission thinks it proper, and the witnesses for the defence consent, can the prosecution be allowed to be present and cross-examine the witnesses through the president of the Commission. Of course, where the prosecution are not allowed to be present at the examina- tion of the defendant's witnesses, they haVe the right, just as the defendant had in reference to the prosecution's witnesses, to hand to the Commission written questions or interroga- tories to be put to the witnesses by the president of the Commission. ' Instr. cit., § 7. * lb., § 13. Eadem. » lb., § 11, Singuli. ^ lb., § 12, Consendentibus. » Instr. cit., § 2, Re ad. in Criminal Causes. 257 1 141. The accused may again reply to what the prosecu- tion may have advanced in their cross-examination or other- wise. The bishop's official or promoter, or his advocate, may in turn be permitted to answer again, and vice versd. The last production or presentation of evidence is always made by the defendant. From what has been said, it is evident that the defendant in the United States, as elsewhere, in order to be able to defend himself properly, must receive, not only from the bishop, a full statement of the charges, etc., before the trial, but also from the Commission a copy of all the acts and proceedings which have taken place from the beginning of the trial down to the time when he begins his defence proper — i.e., all the proofs advanced by the prosecution — namely, depositions of witnesses, letters, etc., as also the minutes of the Commission.' 1 142. When the defendant or his advocate has exhausted all the means of defence at his command, and moreover ex- pressly declares that he has no further defence to make, the Commission proceeds to the final stage of the trial or inves- tigation, and appoints a day (either the same day or some other) on which it will hear the final arguments or summing up of the parties, and enter into consultation on the results of the trial, prior to making up its report to the bishop.* On the day appointed, the defendant or his advocate speaks first, and sums up the case for the defence. Next follows the pro- moter appointed by the bishop, or the promoter's advocate. The latter in turn is followed by the defendant or his advo- cate, and so on. The defendant or his advocate always makes the last speech, as already stated. This final summing up by the parties forms an integral part of a legitimate de- fence, and therefore it would seem that it cannot be forbidden by the Commission." 1 143. Next the Commission proceeds to deliberate and ' Cf. Instr. S. C. de P. F. cit., g§ 2, 7, 12. ^ Instr. cit., §§ 9, 14. ' Cf. Instr. cit.. § 7, Deinde. 25^ Of tJie Ordinary Canonical Trial make up its decision on the case, in the following manner : After the summing up by the parties, the Commission, either immediately, or on a subsequent day set apart by it, goes into consultation. Here the members of the Commission first carefully go over the evidence of the prosecution and defence, discuss among each other its force, authenticity, etc. Having carefully weighed all the testimony before them, they proceed to vote, and if a majority finds the accused or defendant guilty or not guilty, or, speaking of civil causes, the facts proved or not proved, each member will write out his opinion or verdict in accordance with his vote, together with the reasons therefor.' In order to enable the members to write out their opinions at leisure, the Commission may adjourn to another day. On the day fixed, the Commission reassembles, and the members will then compare their writ- ten opinions with each other, for the purpose of ascertaining whether they correspond with the vote, and also to enable them to make opportune corrections, at the suggestion of their fellow Commissioners.' The best way would seem to be that each member should read his opinion to the other members. 1 144. Afterwards the acts of the proceedings {acta in Con- silid) — i.e., all the documents, letters, depositions of witnesses, and also the minutes kept — are filed or arranged, or put in order by the bishop's official or promoter (unless this has been already done during the course of the trial), signed by the president in the name of the Commission (unless this has been already done during the course of the trial), and handed to the bishop, together with the written opinions or verdict of the Commission, either by the president of this body or its secretary." 1 145. By the acta in Consilio* are meant not only the minutes of the proceedings kept by the secretary of the • Instr. cit., § 9, Quibus. » lb. » Instr. cit., § 9, Quibus. * lb. in Criminal Causes. 259 Commission, but also all steps taken by or before the Com- mission, such as the issuing of citations, interlocutory deci- sions, resolutions, etc. ; also all documents whatever — v.g., letters, depositions of witness, etc., etc. — submitted to the Commission, whether by the prosecution or defence.' All these are first signed and thus authenticated by the president of the Commission, in the name of the latter body, before they are delivered to the bishop.* Where the Commission holds more than one meeting, it may be advisable to have the minutes of the previous meeting {acta judicii) read, cor- rected, approved or adopted by the Commission, and signed by the president at each subsequent meeting. In like man- ner, the various documents relating to the cause itself, such as letters, proofs, etc., may be signed by the president of the Commission at each meeting, as they are presented. 1 146. The above phrase of the Instruction of the Propa- ganda, of July 20, 1878, all the dociuncnts . . . are filed . . . by the bishop's official or promoter {acta in Consilio ab cpiscopi officiali redigantur'^), has given rise among some of our ecclesi- astics to two different opinions. One affirms that the bishop's official — i.e., the vicar-general or other priest appointed by the bishop to act as promoter or prosecutor— is thereby charged to act as secretary or notary for the Commission, and therefore to keep the minutes, etc. The other opinion, which seems to us the true one (we say it with all deference and submission to any future decision of the Holy See), denies this, chiefly on the following grounds: i. The bishop's official in the case is entrusted with the duty of drawing up a full and specific statement of the charges against the ac- cused." To this end he must naturally gather all the avail- able information, proofs, and witnesses for the prosecution, in order to be able to substantiate the charges to be pre- ferred by him against the accused before the Commission. 1 Cf. Reiff., 1. 2, t. I, n. 185. « Instr. S. C. de P. F. cit., § 9. * Instr. cit., § 9, Quibus. ■* lb., § 2, Re ad Consilium. 26o Of the Ordinary Canonical Trial He is charged with the office of reading this statement to, and consequently of preparing the charges before, the Cora- mission, and of estabhshing or proving them before this body.* Upon him devolves, therefore, in every sense of the word, the duty and office of a diocesan promoter or prose- cutor. 1 147. Now, is not the position of so interested a party as that of the prosecution or plaintiff wholly incompatible with that of a notary or secretar}-, whose duty it is to write out impartially the minutes relating both to the prosecution and defence, and who should, therefore, be entirely disinterested in the matter? Could it be supposed that the Propaganda, considering the bias and natural inclination of human nature, would allow the prosecutor, who by his very office becomes one , of the contending parties, to write out the minutes relating not only to the prosecution, but even to the oppo- nent? Would it not be unreasonable to deny that grave suspicion must attach to the acts or minutes drawn up by a party so directly concerned in the cause ? Do not all laws, secular and ecclesiastical, prescribe that the notary shall have no interest, direct or indirect, in the matter or case for which he acts as notary or secretary. 1 148. 2. Moreover, shall it be said that the prosecutor or bishop's official, by being allowed to act as secretary of the Commission, shall have the right to be present at all the meetings of the latter body, and thus, v.g., confront the wit- nesses for the accused, whereas the latter may be excluded from the meetings where the prosecutor's testimony is pre- sented ? Or that he shall have the custody of, and therefore free access to, all the documents of the defence, even before the time for their publication arrives? Would this not be giving every possible advantage to the prosecution and every possible disadvantage to the defence ? whereas the law of the * Cf. Instr. cit., § 6, Relatio. in Criminal Catcscs. 261 Church is that the defence shall not only be placed on a footing of equality with the prosecution, but always given the advantage. 1 149. 3. However, it might be objected that Pope Bene- dict XIV., speaking of synodal judges, with whom our Com- missions of Investigation are expressly compared by the S. C. de P. F. in its answer Ad DHbia,"^ explanatory of its Instruction of July 20, 1878, says that they cannot appoint a notary or secretary of their own, but must take one of those who are appointed by the bishop. Those who hold the negative, answer this objection by saying that it does not refer to this country at all; that it applies merely to places where, as in Europe, the bishop appoints several perma- nent notaries, not to act as his secretaries or chancellors, but as notaries indiscriminately for all persons in ecclesias- tical causes, Just as secular notaries are appointed by the secular power in this country. That the view of Pope Bene- dict XIV. does not apply to our country, seems apparent from the fact that with us, as in France, there are no other notaries but the secretaries or chancellors of bishops, or others appointed by the bishop for this or that matter. Now, as the annotator of Reiffenstuel says, these notaries or offi- cials, being removable ad mitum, cannot in certain causes or matters win the full confidence of the subjects, lay or cleri- cal, of the bishop. We add with the same writer, that there seems no reason why two or three ecclesiastical notaries should not be permanently appointed for each diocese." 1 1 50. 4. Again, the phrase acta in Consilio ab episcopi offi- ciali redigantur, means simply to arrange or put on file the acts and documents, but not to act as secretary, or take down the minutes. Bouix ^ uses this same phrase in the sense just explained. 5. Finally, the bishop's official in our ' S. C. de P. F., Ad Dubia, § ii., Electio Consiliariorum. ' Annotat. VIIL, in torn. iii. ap. Reifif., vol. iii., pp. 609, 610: Parisiis, 1S66. ^ De Jud., vol. ii., p. 594. 262 Of the Ordinary Canonical Trial case is supposed to be the vicar-general. For the words of the Instruction plainly indicate that only where there is suf- ficient reason for it shall another priest, and not the vicar- general, act as the diocesan promoter or prosecutor. Now, it could hardly be supposed that the Propaganda wished to impose the onerous duty of a secretary upon such a digni- tary as the vicar-general. Hence it would seem that the Commission of Investigation has the right to appoint its own secretary or notary. This, in fact, is the custom with us, at least in many dioceses. 1 1 5 1 . Nature of the opinion or verdict rendered by the Covi- mission of Investigation. — In this matter, both the Instruction of the S. C. de P. F., dated July 20, 1878, and its supplemen- tary declarations Ad Dubia are explicit. This verdict or opinion is not a final judicial sentence, but resembles the ver- dicts given by the juries of our secular courts. It is an ad- vice given to the bishop by the Commission, in a solemn manner, and with a full knowledge of the whole case. It cannot, therefore, but have great weight with the bishop, and, in case of appeal, also with the superior to whom the appeal is made. For it must always be filed among the acts of the cause and trial, and therefore forms part of the official docu- ments, which on appeal must be forwarded to the judge of appeal. Yet the bishop is not bound to follow this verdict. He is free, absolutely speaking, to pronounce the final sen- tence — v.g., of condemnation, even where the Commission has not found the accused guilty.' We say, absolutely speak- ing ; for practically it will rarely happen that the bishop will pronounce sentence against the advice or opinion of the Commission. ' Cf. Instr. cit., § Commissionis ita; S. C. de Prop. F., Ad Dubia, § iii.. Votum a Consilio datum. in Criminal Causes. 263 Art. III. Proceedings in formal Canonical Trials, and also in Trials before Commissions of Investigation in the United States, in Criminal Causes, from the Final Sentence to the end. 1 1 52. When the defence rests, or declares that it has no further defence to make, it but remains for the judge to pro- nounce sentence, and thus put an end to the controversy or trial. We shall therefore now briefly speak of the final sen- tence, its execution, and appeals from it. § I. Nature and Division of Judicial Sentences — Interlocutory Sentences. 1 153. A judicial sentence {sentential, speaking in general, is the decision of the judge in the matter or case on trial, or in the controversy brought before his tribunal.' There are two kinds of judicial sentences : interlocutory and definitive. Interlocutory sentences (j^«^r«/zrt£' iiiterlocutoriae) are decisions given by the judge during the course of the trial, — i.e., at any time or stage of the trial between the beginning and the end, — not on the merits of the cause itself, or of the main ques- tion under litigation, but on some incidental matter or ques- tion — v.g., on the admissibility of witnesses or other evidence ; on the propriety of granting the parties longer delays or time to prepare, etc. Hence any decision, command, or resolution of the judge pertaining to the case or trial, which is made between the beginning and the end of the trial, — that is, from the citation to the final sentence exclusive, — is, properly speaking, an interlocutory sentence.^ 1 1 54. We %2ij,from the citation, etc.; for a decision given by the judge on an incidental matter, before the citation or after the final sentence, is not, properly speaking, an inter- * Schmalzg., 1. 2, t. 27, n. 17. " Reiff., 1. 2, t. 27, n. 14. 264 Of the Ordinary Canonical Trial locutory sentence, but only a quasi-interlocutory sentence. And it is to be borne in mind that the prohibition to appeal from interlocutory sentences applies only to interlocutory sentences proper, but not to quasi-interlocutory sentences.' 1 155. Interlocutory sentences are subdivided into simple and mixed. A simple interlocutory sentence is one which remains strictly within the limits of an interlocutory sen- tence, and therefore does not affect the cause itself, or the main question at issue, in such a manner as to virtually end it. Decisions of this kind are those by which the judge grants further delays, or commands the parties to be present in court on a certain day, to produce their proofs,'' etc. A mixed interlocutory sentence {sentottia interloaitoria mixta, vcl Jiabens vim definitivac) is one that goes farther, and does not merely touch on or decide an incidental point, such as the admissibility of witnesses, but materially affects the main cause itself, in such a manner as to virtually decide it.' We say, virtually ; for although such a sentence does not for- mally terminate the cause, yet it does so indirectly, or, as we have said, virtuall3^ Hence such a sentence is called an interlocutory sentence having the force of a final. 1 1 56. Such, v.g., are the following decisions: {a) All de- cisions which preclude the hope of any other decision in the same court or instance — v.g., where the judge decides that a person can or cannot appeal ; that the appeal is given up or abandoned by the appellant* {b) Any decision by which a fine is imposed, {c) or a person is commanded to give or do something; (^) or by which the judge decides that he has no competence in the case,^ ic) or adjudicates one of the sub- stantial points of the controversy or main cause ; " (/) admits or rejects a peremptory exception; {g) or decides that the plaintiff or prosecution has sufficiently proved his case,' etc. ' Reifif., 1. c, n. 15. « lb., n. 16. ' Ex 1. 9, C. de Sent, et interl. (vii. 45). * Reiff., 1. c, n. 18. * Ferraris, v. Appellatio, art. 4, n, 7. « Ex 1. 39 ff. de Minor, (iv. 4). ■> Schmalzg., 1. 2, t. 27, n. 18. in Criminal Causes. 265 1 1 57. Interlocutory sentences differ from final chiefly as follows : I. As to their form. For a final sentence should be pronounced with certain formalities (as we shall see further on), while an interlocutory can be pronounced summaril)% and without any judicial formalities. 2. As to their stability ; for the judge can, as a rule, revoke or amend an interlocu- tory sentence, but not a definitive.' 1 158. 3. As to the right of appealijtg. For from a final sen- tence it is always allowed to appeal, except in a few specified cases, given above.'' While at present an appeal from an interlocutory sentence is permitted only {a) when the inter- locutory sentence has the force of a final sentence ; {V) or if it inflicts a grievance which cannot be remedied by a final sen- tence ; ' or by an appeal from a final sentence." We say, at present ; for, according to the common law of the Church, as it stood before the Council of Trent, and is laid down in the corpus juris canonici,^ it was allowed, generally speaking, to appeal from all interlocutory sentences whatever. But the Council of Trent ° restricted this right in the manner just stated. 1 1 59. Now when is an interlocutory sentence considered as having the force of a final sentence, or inflicting an injury or grievance which cannot be redressed by a final sentence, or by an appeal from a final sentence, so as to admit of an appeal, even at the present day ? I. An interlocutory sen- tence is regarded as having the force of a final sentence, and therefore admits of an appeal, chiefly in these cases : i. When counts or articles or specifications of the defendant, or, as the case may be, of the complainant or prosecution, are unjustly admitted or unjustly rejected by the judge or court. ' Schmalzg., 1. c, n. 20. * Supra, n. 445 sq. * Cf. cap. 59, de Appell. (ii. 28); ib. Glossa, incasum. * Cf. cap. 12, de Appell. in 6° (ii. 15); ib. Glossa, in casum. 5 Cap. 12, de Appell. (ii. 28). * Sess. 13, cap. i., de Ref. ; sess. 24, cap. 20, de Ref. 266 Of the Ordinary Canonical Trial 2. Where witnesses are rejected ; or when there is question of admitting or rejecting witnesses. 3. Where any other kind of proof — v.g., instruments, documents, letters, etc. — offered in evidence is rejected. 4. Where the time given a person to prepare or produce his proofs is sq short as to make it difficult or well-nigh impossible for him to be ready at the time fixed. 5. If the judge imposes the burden of proof upon the wrong person. 6. When peremptory excep- tions are decided by an interlocutory sentence. 7. Hence, also, when the judge pronounces himself competent or incompetent. 8. Where the judge refuses to furnish the defendant (or, as the case may be, the complainant or prose- cution) with a copy of the minutes, acts of the case and of the proceedings, and of the proofs.' 1 160. It is evident that upon the interlocutory decisions in the cases just enumerated depends in a measure the final sentence or decision of the main cause. For if the judge, v.g., refuses to admit important witnesses or documents, or excludes part of the case, he thereby virtually decides the whole case against the person whose witnesses, etc., he rejects, as the nature of the final sentence depends materially upon the evidence submitted.'' Hence, too, interlocutory decisions of this kind are properly said to have the force of a final sentence. 1 161. II. An interlocutory sentence is considered as inflict- ing an injury that cannot be remedied by a final sentence, or by an appeal from a final sentence, chiefly: i. Where the judge decrees that a bodily penalty, such as imprisonment, shall be inflicted. 2. Where a censure, such as suspension, is to be imposed ; and in this case the appeal, as we have seen,' if interposed before the censure is fulminated, has a suspensive effect. It is plain that in both these cases the ' Ferraris, v. Appellatio, art. iv., n. 33-48. * Cf. ib., Novae add., n. 4. ' Supra, n. 446. in Criminal Causes. 267 ecclesiastical judge could not, in any subsequent final sen- tence, or in proceedings of appeal (if the case were appealed to him), redress or undo the injury inflicted by the previous imprisonment or censure.' 3. Where dismissal from one's office or parish is decreed ; and in this case the appeal has a suspensive effect. 4. Where a person is excluded from a public office — v.g., a parish — because of alleged infamy."* 1 162. From this it will be seen that interlocutory sen- tences which have the force of a final sentence, or inflict an irreparable gravamen, are in many respects placed on an equal footing with final sentences proper." We observe here that the restriction of the Council of Trent, prohibiting appeals from interlocutory sentences except in the above cases, extends only to appeals against interlocutory sentences as pronounced in the course of a trial or of judicial proceedings, but not to appeals from extrajudicial acts or grievances.* For from the latter — i.e., extrajudicial grievances — it is alwa3's allowed to appeal, whether they partake of the nature of final acts and sentences, or only of interlocutory. ^ 1 163. Finally, we shall state a few of the formalities peculiar to appeals from interlocutory appeals: i. They must express the cause of the appeal — that is, they must state the gravamen against which the appeal is made.' 2. The complaint must be reasonable, not frivolous,' 3. The litigant or party who considers himself aggrieved by an interlocutory ruling, mandate, or resolution of the judge cannot appeal immediately against such ruling, but must first make the objection — i.e., except to or protest against the ruling — before the judge himself who has made it ; and only when the judge rejects the protest, even though he does so only tacitly, — v.g., if he goes on with the trial with- ' Cf. cap. Super eo 12, de Appell. in 6° (ii. 28); Ferraris, 1. c, Novae add., n. 16. '^ Ferraris, 1. c, art. 4, n. 44 sq. ^ Schmalzg., I. c, n. 21; Reiff., 1. c, n. 24. ^ S.C. C. ap. Ferraris, I. c, n. 32. ^ Supra, n. 444. * Ferraris, l^ c, n. 10. ' Our Elements, vol. i., p. 426. 268 Of the Ordinary Canonical Trial out heeding the exception or protest, — can the aggrieved party appeal to the higher judge.' 1 164. Interlocutory sentences of ecclesiastical courts, in the United States, as established by the Instruction of the S. C. de P. F.,July 20, 1878. — According to this Instruction," and the subsequent Declarations of the Propaganda," the trial — i.e., the hearing of the case from the citation to the final sen- tence exclusive, of all criminal causes (of which we here speak) — is committed to the Committee of Investigation to be established in each and every diocese of the United States. The bishop, however, retains the exclusive right to pronounce the final sentence. In other words, in this country no dismissal from parish, no ecclesiastical punishment or censure, and no grave disciplinary correction can be inflicted by the bishop, except upon due trial, as prescribed by the Instruction of the S. C. de P. F., dated July 20, 1878.* 1 165. Moreover, according to the common law of the Church, as we have frequently remarked, grave civil causes {causae civiles ardiiae) — that is, ecclesiastical causes where no punishment is inflicted, but where there is question of deciding other matters of importance ; " for instance, the jurisdiction of a bishop, parochial rights of rectors, etc. — are placed on a footing of equality with criminal causes. Hence it would seem that no ecclesiastical civil cause of importance should be decided by the Ordinary, save upon due trial of the matter, conducted in the mode laid down in the above Instruction of the Propaganda. 1 166. With us, therefore, all interlocutory decisions in the above cases are given by the Commission of Investiga- tion. In other words, the Commission, being charged with the exclusive right to hear the causes above mentioned, has * Cap. 63, de Appell. (ii. 28); Schmalzg., 1. 2, t. 28, n. 69; Ferr., 1. c, n. 15. * Instr. cit., § Commissionis ita; ib., § Quod si. ' Ad Dubia, § iii., Votum. * Instr. cit., § Commissionis ita; ib., § Quod si; S. C. de P. F., Ad Dubia, § i. * Our Counter-Points, n. 55, 56. 271 Criminal Catises. 269 alone the right and duty to grant delays, admit exceptions, etc' As the Commission is an ecclesiastical corporation, and therefore proceeds as a body corporate, in the hear- ing of causes, it follows that all its interlocutory sentences are rendered by the vote of the majority, and not by its president alone. Hence the interlocutory sentences of our Commissions of Investigation are those resolutions of the Commission which are passed either tacitly or expressly, by a majority of its members, in regard to incidental matters, questions, or facts connected with the cause on trial. 1 167. Here it may be proper to observe that our Commis- sions of Investigation must on the one hand allow both the defence and the prosecution full liberty to make out their case, and yet on the other cut short all such delays and procrastinations as are evidently resorted to for the purpose of evading the ends of justice.* 1 168. What has been said concerning appeals from inter- locutory sentences of the ecclesiastical judge proper, seems to apply also to the interlocutory decisions of Commissions of Investigation in the United States. The question, how- ever, may be asked, whether, in case of an appeal being made from the interlocutory sentence of a Commission of Investi- gation, such appeal is to be made to the bishop, of whose tribunal the Commission forms part, or to the higher judge — that is, the Metropolitan or Holy See ? We think the appeal must be made to the Metropolitan or Holy See. For although the Commission of Investigation is a judicial body, vested with judicial power, not by the bishop, but by law, — that is, by the Instruction of the S. C. de P. F., dated July 20, 1878, — and distinct from the bishop or judge proper, it is nevertheless a branch or part of the bishop's court, and in this respect morally identified with him. Hence the interloc- utory decisions of the Commission are regarded as decisions ^ Cf. Instr. cit., § 7. ' Cf. Instr. cit., § Commissionis ita; ib., §§ 6, 7, 15. 270 Of the Ordinary Canonical Trial of the bishop's court. The appeal against them, therefore, should be made in the same manner in which they would have to be made if they emanated directly from the bishop himself — that is, they must be made to the Metropolitan or Holy See. Nor can it be objected, that as the appeal from a person or judge delegated must be directed to the judge delegating, so also from the Commission to the bishop. We deny the parity. The Commission is not delegated by the bishop, but is clothed with ordinary power. § 2. The Final Sentence {Sententia Definitivd). 1 169. Having spoken of interlocutory sentences, we come now to sentences in the proper sense of the term, and which are, properly speaking, the subject-matter of this whole arti- cle — namely, final or definitive sentences. A definitive sen- tence {sententia Jinalis, dcfinitivci) is one by which the judge pronounces upon or decides the case itself, or the main issue of the trial, and not merely an incidental point, or some ques- tion arising incidentally during the proceedings.' It should be, I, either absolutory— that is, it should absolve the accused of the crime charged against him ; 2, or condemnatory — i.e., declare him guilty, and condemn him to the proper punish- ment ; 3, or, finally, it may be merely declaratory — that is, it need not condemn the accused, but may simply declare that he is guilty of the crime charged, and has incurred the pun- ishment inflicted ipso jure by the law itself. It will be seen that in this third case the judge does not impose the penalty, but merely declares that the accused has committed a crime, for which the law itself inflicts the penalty ipso facto. Hence, too, the effect of a declaratory sentence is retroactive, — i.e., takes effect from the moment the crime was committed, — and not merely from the time the declaratory sentence was pronounced.* ' Reiff., I. 2, t. 27, n. 9. » Schmalzg., 1. 2, t. 27, n. 18. in Criminal Causes, 271 1 1 70. What is chiefly required on the part of the judge (we speak, of course, of the ecclesiastical judge) in order that he may pronounce sentence lawfully? i. He must have competence in the case ; 2, be not publicly excommunicated ; 3, he must be prudent and learned in the law ; ' 4, he should not be animated by personal motives, such as dislike, hatred ; 5, nor act with levity. He should give the parties a full and fair trial, and carefully and impartially weigh the evidence." 1 171. What is principally requisite on the part of the sen- tence itself, in order that it may be canonical? i. The sen- tence should be absolute, not conditional. Hence this sen- tence is invalid : I condemn Titius, if he has been proved guilty. 2. It should be clear and determinate, not vague or obscure, or uncertain ; ' otherwise it is null and void.* 3. As a rule, it should be conformable to the bill of complaint or libelhis {conformis libcllo) — that is, it should not decide any other matter, nor pronounce upon any other demand, than .that which is contained in the bill of complaint, and which was consequently the subject of the trial.^ We say, as a rule ; for there are some exceptions. Thus the rule holds only in civil, but not in criminal causes. Nay, in criminal causes it is not necessary for the prosecution to demand, in its bill of complaint, that a certain fixed penalty be inflicted upon the accused. For, if the accused is found guilty, the judge should impose the penalty which the law decrees for the offence, or if the law leaves it to the judge's discretion, the penalties he thinks proper.' 1 172. 4. It should be conformable to Xdcv^ or conformis juri — i.e., in harmony with the sacred canons. Now a sentence can be contrary to law in two ways: First, because it is against the disposition of the law {contra jus constitutionis) ; ' Novella 82, Praefat. * Schmalzg., 1. c, n. 27. ' § Curare 32, Inst, de Action, (iv. 6). * L. 3, 4, C. de Sent, quae sine (7. 46). '' Clem. Saepe 2, § Verum, de V. S. (v. 11); Munchen, 1. c, vol. i., p. 211, n. 9. « Reiff., 1. c, n. 84. 272 Of the Ordinary Canonical Trial in other words, because the judge decides ofherwise than is decreed by law or established by custom — v,g., if he decides that an ecclesiastical election made by suspended ecclesias- tics is valid. For the law of the Church expressly declares that an election by suspended ecclesiastics is null and void.' All sentences of this kind are ipso jure null and void, and may be disregarded. Nor is it necessary to appeal from them, since they are not considered as having been pro- nounced at all.'' 1 173. vS^(r(?;z^/j/, because it is against the right of anyone of the litigants {contra jus litigatoris) — namely, when the judge wrongfully refuses by his sentence what the contend- ing party has sufficiently proved to be due him. This sen- tence, though unjust so far as concerns the merits of the case, is nevertheless valid until it is revoked by the superior judge, on appeal.' 1 1 74. How is, the sentence to be pronounced, or what other conditions are chiefly necessary, in order that it may be canonical? i. The litigants should be cited to hear the sentence, and that where the trial preceding the sentence was formal or ordinary, by three simple citations or one per- emptory citation. This holds so true, that if one of the con- tending parties is not cited for sentence, the latter is null and void." This applies even in the case of interlocutory sen- tences, which are of such a nature as to inflict a serious gravamen upon the absent party.^ We said, where the triat . . . was formal; for in summary trials the parties must indeed be cited to hear the sentence : yet one simple citation is sufficient." As trials in the United States before Commis- sions of Investigation partake, as we have frequently ob- ' Cap. 16, de Elect, et elect. pot.(i. 6). ' Cap. I, de Sent. (ii. 27); ib. Glossa, v. Sententia. * Reiff., 1. c, n. 76. * Ex Clem. Pastoralis 2, de Sent, et re jud. (ii. 11); L. 7, 8, 9, Cod. Quomodo et quando judex (vii. 43). * Schmalzg., 1. c, n. 50. « Clem. Saepe 2, de V. S. in Crzmmal Causes. 273 served, of the nature of canonical summary trials, it would seem proper that when the trial before the Commission is over, the bishop should fix a day for sentence, and cite the parties to hear it. 1 175. Now what is to be done where the party has been cited indeed for sentence, but fails to appear on the day appointed for pronouncing sentence ? If he is contuma- ciously absent, — that is, if he refuses to appear without suffi- cient cause, — sentence may be validly pronounced in his absence.' If he fails to appear, not through contempt, but for just reasons, these reasons are either known to the judge or not. If they are, the judge cannot validly pronounce sentence in the absence of the party." If they are not, the sentence, if pronounced, is indeed valid, but must be revoked when the party that was absent proves that the absence was caused by good reasons.' 1 176. 2. It should, on pain of nullity, be pronounced after due trial, conducted with the prescribed formalities.* These formalities differ, of course, according to the various kinds of trials. Hence, where the judge should proceed by a formal or solemn canonical trial, he must observe, in the course of the trial, all the formalities prescribed by the sacred canons for such trials. Otherwise the trial and sub- sequent sentence are null and void. Hence the different stages of the trial, such as the bill of complaint, the citation, etc., must be carefully conducted in the manner laid down by the sacred canons. 1 1 77. Where, on the other hand, the judge (we speak always of the ecclesiastical, not secular judge) can proceed by an extraordinary trial, — that is, either summarily, or ex notorio, or ex informata conscientia, or sola facti veritate » L. 8, C. tit, cit. (vii. 43). 2 L. 7, C, 1. c. ' Cap. iS, de Sent. (ii. 27); ib. Glossa, v. Cum Bertholdus. ^ Cap. 24, de Sent. (ii. 27); ib. Glossa in v. Ex alia justa causa; Leg. 4, C. de Sent, et interl. (vii. 45). 2 74 Of the Ordinary Canonical Trial inspecta, — he must observe the formalities peculiar to each of these kinds of proceedings. Here, by the way, we ob- serve, that when a judge is authorized by the superior judge — v.g., 2l bishop by the Pope — to proceed in a matter or case " sala facti veritate inspecta," he is not bound to observe even the forms of a summary trial. For the power to pro- ceed " sola facti veritate inspecta" is one by which the judge is empowered to proceed even in a simpler manner than in summary causes, as he can dispense with all the formalities established by positive law, though not with those based upon natural law.' This power is usually given only in cases of little importance. 1 1 78, In the United States, the Commission of Investiga- tion and the bishop are obliged, in hearing and deciding criminal and disciplinary causes of ecclesiastics, to observe the substantial formalities contained in the Instruction of the S. C. de P. F., of July 20, 1878 ; otherwise the trial and subsequent sentence of the bishop wou^d be null and void.' And here we remind the reader of wLat we have already said,' that where the sentence is clearly against the sacred canons or legitimate custom — v.g., where the requisite for- malities of trials are omitted, as just stated ; pr where a judge is incompetent or publicly excommunicated, the sentence is ipso jure void, and of no effect whatever. 1 1 79. 3. In ordinary or formal canonical trials, the sen- tence should be pronounced by the judge sitting {sedens pro tribunali),not walking or standing, or in any other posture;* otherwise the sentence is invahd. We say, in formal trials ; for in summary trials it is not necessary that the judge should be seated when he pronounces sentence ; ' he may occupy any posture he chooses. 4. It should, as a rule, be in writing, and be read from the manuscript by the judge himself.' We say, ' Reiff., 1. c, n. 82. » Cf. Schmalzg., 1. c, n. 52. » Supra, n. 1168. * Cap. ult., de Sent, et re jud., in 6°; nov. 82, cap. 3; Reiff., 1. c, n. 61. * Clem. 2, de V. S., § Sententiam. • Cap. ult., de Sent., in 6\ in Criminal Causes. 275 as a rule ; for in matters of little importance it need not be written ; and, moreover, judges of high dignity — z^.^., bishops —can have it read and published through others. 5. It should be pronounced in a public place ; nay, in the case of an ordinary judge, as a rule, in the place where he is accus- tomed to hold court. We say, rt:^ a rule ; for the bishop may hold court and pass sentence, either personally or through others, in any part of his diocese.' 1180. 6, It should be pronounced on the day and at the hour appointed in the citation for the sentence ; otherwise the sentence is null and void, as if it had been pronounced against a party not summoned for sentence.^ 7. It should not be pronounced on Sundays, and holidays of obligation.' 1 181. 8. Generally speaking, the judge need not embody or state in his sentence the cause or reasons therefor." We say, generally speaking ; for the following, among other cases, are excepted from this rule : {a) criminal causes ; " {b) espe- cially where a censure — that is, excommunication, suspen- sion or interdict — is inflicted. Thus Pope Innocent IV. (in the Council of Lyons held in 1245) expressly says: " Quis- quis" (judex ecclesiasticus) " igitur excommunicat . . . causam excommunicationis expresse conscribat, propter quam excommunicatio proferatur . . . et haec eadem in sus- pensionis et interdicti sententiis volumus observari.® 1 182. Hence in these cases the bishop or ecclesiastical judge (also in the United States) is bound to state in his sen- tence the cause — that is, the crime or criminal act — for which he inflicts the censure or penalty, in order that it may appear whether such cause — i.e., crime — is sufficiently grave to justify the imposing of the censure or penalty. Nor is it sufficient for the bishop or judge to state this cause in a general way — z/.^., by saying: I hereby suspend Titius for ' Cap. 7, de Off. orcl., in 6°. ^ Schmalzg., 1. c, n. 58. ^ Cap. i, de Feriis. < Cap. Sicut 16, de Sent. (ii. 27). * Schmalzg., 1. c. , n. 61. ^ Cap. Cum medicinalis i, de Sent, excom., in 6° (v. Ii). 276 Of the Ordinary Canonical Trial good and valid reasons. He must specify the particular crime or criminal act on account of which the punishment is inflicted. Hence he should formulate his sentence — v.g., thus : I hereby excommunicate Titius, because he is con- tumacious, having failed to appear before me, although duly cited ; or : I suspend Titius, because he is guilty of drunken- ness,' 1 183. This law holds so strictly, that if the ecclesiastical judge, in violation of it, inflicts a censure without expressing the crime or cause therefor, the superior to whom an appeal is made should forthwith, unhesitatingly, and without first inquiring into the justice or merits of the appeal, revoke the censure and sentence, and moreover in other ways punish the inferior judge.'' The same holds true where the judge pronounces sentence of excommunication by word of mouth, not in writing ; or where he refuses to deliver a copy of his written sentence to the person censured, within a month, though requested to do so.^ Hence it does not seem that the sentence, pronounced in violation of the above conditions, is per se invalid — at least where no protest or appeal has been made. It is however subject to being — nay, should be forth- with annulled by the higher judge, on appeal.* Hence in this case, as in most other cases, the aggrieved party should be careful to protest or appeal, lest he should appear to con- sent to the grievance, and thus render valid what otherwise would not be sustained." 1 184. {c) Finally, where the superior, having been appealed to in a case, reverses the sentence of the inferior judge (we speak always of the ecclesiastical judge), he should in his de- cision give the cause or reasons therefor, and that in order to shield or protect, as far as possible, the honor of the in- ' Glossa, in cit. cap. Cum medicinalis, v. Causam. ' Cap. Cum medic, cit.; ib. Glossa, v. Difficultate. ' lb. * Glossa, ib. v. Cum medicinalis. ' Cf. Reiff., 1. c, n, 103. in Criminal Causes'. 277 ferior judge.' Examples of this rule are given in the cap. 10, de Fid. instr. (ii. 22) ; cap. 14, de Priv. (v. 33); cap. 18, de Sent. (ii. 27). In all these places, the Popes, in reversing the sentences of inferior judges, that had been appealed to them, always state the reasons why they reversed said sen- tences.'' § 3. Chief Effects of the Final Sentence — Res Judicata. 1 185. The chief effect of the final sentence is, that where the person who loses the case, or is condemned, has not ap- pealed within the time fixed by ecclesiastical law, — namely, ten days, — the sentence becomes res Judicata ; that is, the cause or litigation comes absolutely to an end, and the sen- tence acquires such force and authoritythat.it must be re- garded as truth, ^ and can no longer be reversed, and the per- son condemned who may wish to appeal against it can no longer be heard.^ 1 186. By res Judicata in the proper sense of the word, therefore, canonists commonly mean the final sentence or judgment itself, not indeed as soon as it is pronounced, but only when de facto it has not been suspended by an appeal, and cannot, owing to the lapse of the ten days allowed for appealing, be any longer suspended.^ We say, in the proper sense of the zvord ; for in a broad sense the cause itself, or controverted matter, which has been decided by the final sen- tence, is also styled res Judicata^ A judgment or sentence, therefore, is said to have passed into res Judicata when its effect is not and cannot be any longer suspended. ' Glossa, in cit. cap. Cum medicinalis, v. Exprimantur. ^ Cf. Miinchen, 1. c, vol. i., p. 210. ^ Thus the Roman law, adopted by the canon law, says: " Res judicata pro veritate accipitur." — Reg. 207 ff. de Reg. jur. * Cap. 13, 16, de Sent. (ii. 27); Reiff., 1. c, n. 107; Leur., For. Eccl., 1. 2, t. 27, Q. 965, Resp. 1°. * ReilT., 1. c, n. 105; Schmalzg., 1. c. , n. 62. * Schmalzg., 1. c. 2 7^ Of the Ordinmy Canonical Trial 1 187. It is therefore pertinent to ask : When, or at what particular time, does the sentence pass into res judicata ? As a rule, the sentence becomes res judicata when the person condemned acquiesces in it, whether expressly — v.g., by de- claring himself ready to pay, or asking for time to pay, the sum of money to which he is condemned ; or tacitly — v.g., by not appealing within ten days. 1 188. We say, as a ride ; for the following among other cases are excepted: i. Where the sentence is ipso jure null and void — v.g., if pronounced by a judge not having compe- tence in the case ; or if it is in open violation of the sacred canons or lawful custom. In these cases the sentence may be disregarded altogether, just as though it had never been pronounced. No appeal is therefore necessary. For such a sentence has no effect whatever, since it has no validity. 2. When the sentence is based upon false evidence, such as spurious instruments, corrupt witnesses;' provided however it is proved that the judge was influenced by or based his sentence upon this false evidence." 3. If the sentence is grounded upon mere presumptions. In this case the sen- tence can always be reversed as soon as the contrary is es- tablished by real proofs, and not mere presumptions. 4. Where the sentence is based upon the testimony of experts. In this case it does not become res judicata, but can, as a rule, be revoked at any time as soon as the expert's testi- mony is proved to be incorrect, either by clear evidence or the testimony of abler experts. We say, as a rule ; the ex- ception is where both the contending parties have agreed upon the expert." 1 1 89. 5. When the sentence decides upon the validity or invalidity of marriages, it does not become res judicata, but may always be revoked whenever it is shown to. be erro- neous.* 6. If the sentence is based upon error, or insufficient ' Cap 9, de Test. (ii. 20). * Cap. 22, de Sent. (ii. 27); ib. Glossa, v. Secuii. » Reiff., 1. c, n. 134. ■♦ Cap, 9, h. t. (ii. 27). in Criminal Causes. 279 motives, it is ipso jure null and void, and does not pass into res judicata, and therefore can always be reversed, provided this error or insufficient cause is expressly stated, or appears in the sentence. 7. When the sentence inflicts a censure — namely, excommunication, suspension or interdict. For although a person under censure cannot appeal, properly speaking, after ten days, he can at any time, by way of re- course, complain of the injustice of the sentence. Conse- quently he should be heard always, if he asks for absolution from the censure, and wishes to prove the injustice of the sentence,' 1 190. What other effects, besides that of res judicata, has a definitive sentence? They may be reduced to three heads, some of which regard the judge ; others the matter itself, or cause decided ; finall}^ others the litigants. I. Effects as to the judge. — He cannot revoke or change his final sentence (the same holds of an interlocutory sentence having the force of a final sentence), even when he sees it is manifestly unjust, except where the sentence is ipso jure null and void.* This holds even before the sentence has passed into res judi- cata — that is, before the lapse of the ten days allowed for the appeal.' The reason is, that having pronounced final sentence, he is functus officio, and has no further jurisdiction in the case. We say, except where the sentence is " ipso jure" null and void ; since such sentence is no sentence at all, and the judge who has pronounced it is regarded as not having pronounced it at all. Hence he is not thereby functus officio, and still retains jurisdiction in the case, until he pronounces a valid sentence. Hence he can himself revoke or change a sentence of his which is ipso jure invalid, though it is more becoming that the superior judge should do so. 1 191. n. Effects upon the litigants. — These effects are * Cap. 36, de Off. jud. del.; cap. 48, de Sent, excom.; Schmalzg., 1. c, n. 65 (4). * Leg. 55 ff. de Re jud. ^ Schmalzg., 1. c, n. 78. 28p Of the Ordinary Canonical Tr'ial chiefly the following: i. If no appeal is interposed within ten days, the litigants must obey the judgment. 2. As far as the accused or defendant is concerned, he acquires, if he has been absolved or declared not guilty, the right to oppose the exception of res judicata to any future action brought against him in the same matter, which exception is a bar to any such future action.' 1 192. III. Effects as to the cause itself or matter decided. — As we have already seen, the effect of a final sentence, which has passed into res judicata, is that the trial or cause is wholly ended, and cannot be tried over again by a higher judge, as there is no appeal in the case. For the law of the Church presumes, by what is called praesumptio juris et de jure, that the sentence against which no appeal has been interposed is just, and that both as a mark of respect to the authority of the judge, and because of the tacit consent of the party who is condemned, implied in his not appealing. The Roman law, adopted by the Church, is, that a person who does not appeal tacitly consents to and ratifies the sen- tence pronounced against him." Of course, what we have said here with regard to the effect of a final sentence, in regard to the cause decided, does not apply to the cases enumerated under No. 1178, where the sentence does not pass into res judicata, and therefore produces no effect, even when no appeal is made. § 4. Execution of the Sentence. 1 193. After the judge (ecclesiastical) has pronounced sentence he should also see that it is carried into effect or executed. By the execution of the sentence we mean the judicial act by which the victor or person who gains the cause is actually or de facto given that which was de jure ' L. 4 ff. de Except, rei Jud. (xliv. 2); Reiff., 1. c, n. 146. 'L. 4 C. de Sent, quae sine (vii. 46); Reiff., 1. c., n. 108. ill Criminal Causes. 281 obtained by him through the sentence.' We say, first, judicial act ; because it belongs to the trial or judicial pro- ceedings in the case, and forms, so to say, the final act or consummation of the whole cause. We say, secondly, by ivJiich the victor, etc. ; to show the difference between the sentence and its execution. For by the sentence the vic- torious party obtains his rights by words or orally, while by the execution he acquires them in fact or reality. Hence the execution of the sentence may be briefly said to be the carrying into effect what was decreed by the sentence. 1 1 94. Now, when should the sentence be executed.'* Before answering, we premise : Some sentences do not stand in need of a separate execution, but carry their execu- tion with themselves ; while others must be executed, other- wise they have no effect whatever.* Sentences of the first kind are chiefly those, i, which inflict a censure, whether of excommunication, suspension, or interdict. The reason is, that such a sentence produces its effect of itself, and without any other agenc3^ 2. Those sentences which absolve the accused. For the accused, by the very fact of his being absolved, obtains what he contended for during the trial. 3. Where the sentence does not require the person who is condemned to do a positive action, in order to undergo the punishment imposed by the sentence, but merely commands him to abstain from doing something — v.g., where a person is deprived of his active or passive vote in an ecclesiastical elec- tion. In all other cases — v.g., where the ecclesiastical judge imposes a pecuniary fine, or dismissal from office or bene- fice, etc. — the canonical execution must follow the sentence." 1 195. We now answer: i. In civil causes or actions (we speak, of course, of civil causes pertaining to the ecclesias- tical forum) the sentence pronounced by the judge cannot ' Schmalzg., 1. c, n. 93. » Schmalzg., 1. c, n. 93. ^ Bouix, de Jud., vol. ii., p. 239, 282 Of the Ordinary Canonical Trial be executed immediately, but it is necessary to wait at least ten days. The reason is, that before the lapse of ten days the sentence does not pass into res judicata; nay, it is allowed to appeal from it within that time.' We say, in civil causes ; for it is disputed whether this holds also in criminal causes. With Abbas and others we hold the affirmative — namely, that the above rule applies also to criminal causes.'' The reason is, that in criminal causes a person has even more at stake than in civil causes, and should therefore be allowed at least as much in the one as in the other.^ Of course we except those criminal causes which do not admit of an appeal, — v.g., where the guilt is notorious ; where the ac- cused has been convicted on his own confession.* 1 196. If, however, it be held that the sentence in crimi- nal causes may be executed immediately, and without wait- ing for the lapse of the ten days allowed for appealing, it would be necessary for the condemned person to appeal against it at once if he wished to have the execution of the sentence suspended.* 1 197. By whom is the sentence to be executed? Not by the contending parties themselves, — z>.,the victorious party, — but by the judge, and that by the same judge by whom the sentence was pronounced, at least if he be an ordinary judge. We sa)'', if he be an ordinary judge ; for in the case of a dele- gated judge canonists distinguish between delegates of the Pope and delegates of inferior judges — v.g., of bishops. It is certain that delegates of the Holy See can themselves exe- cute their sentence, either personall)^ or through others, and that within a year from the time it was pronounced.* We say, or through others ; hence a papal delegate can command a bishop to execute his sentence.' ' Cap. 15, de Sent. (ii. 27). ' Ap. Reiff., 1. c, n. 162; Leur., For. Eccl., 1. 2, t. 27, Q. 983, Resp. 4°. ^ Ex 1. 6 fif. de Appell. et relat. (xlix. i). •• Cf. supra, n. 445 sq. * Bouix, 1. c, p. 240. 6 Cap. 9, 26, 28, de Off. del. (i. 29). ' Reiff, 1. c, n. 169. in Criminal Causes. 283 1 198. It is disputed whether delegates other than papal — v.g., delegates of bishops — can execute their sentence with- out a special mandate to that effect. Schmalzgrueber/ fol- lowing the Glossa," holds the affirmative, on the ground that according to the cap. 5, de Off. del. (i. 29), a person or delegate to whom is committed the hearing of a cause re- ceives, by that very fact, full power in all matters referring to such cause, and therefore also to execute the sentence. The same cannot be said of arbitrators, whether voluntarily {arbitri coinprondssarii) or necessarily {arbitri Juris) chosen by the contending parties. They can only pronounce sentence, and are bound to leave its execution to the ordinary judge.' 1 199. A fortiori, neither can Commissions of Investiga- tion in the United States execute their verdict. For they are not judges proper, but only assessors or auditors of the bishop, or in a certain sense arbitrators appointed by the law, whose office expires, so far as a particular case is con- cerned, as soon as they have given their opinion on the case, in the manner prescribed by the Instruction of the S. C. de P. F., July 20, 1878, § 9. Hence also the supplementary In- struction issued by the same Sacred Congregation ^ expressly states that the pronouncing (and by implication the execut- ing) of the final sentence pertains solely to the bishop. 1200. By whom is the sentence to be executed when the case has been appealed ? By the judge from whom or by the judge to whom the appeal has been made ? We distin- guish : The sentence of the inferior judge is either reversed or confirmed by the judge of appeal. In the first case, the execution belongs to the judge of appeal. In the second, the question is disputed. According to Schmaizgrueber," the common and approved opinion of canonists holds, i, that where the judge of appeal confirms the sentence of the in- ' L. c, n. 95. ' In cap. 4, de For. comp. (ii. 2), v. Ipsius solicitud'ne. •* Cap. 4, de For. comp.; Schmalzg., I. c, n. 95. ■* Ad Dubia circa modum, § iii., Votum. * L. c, n. 96, 97. 284 Of the Ordinary Canonical Trial ferior judge only tacitly or indirectly, — that is, where he does not take cognizance of the cause appealed, but simply declares that the time for appealing has lapsed, or that the appeal has been abandoned, and that, consequently, the case has not devolved upon him by the appeal, — the sentence is to be executed by the judge from vv^hom the appeal has been made; 2, that, however, if the judge of appeal, upon due trial or hearing of the cause appealed, expressly pronounces the sentence of the inferior judge to be just {i.e., decides male appellatum, et bene judicatiini), and thus directly confirms it, he can himself execute it.' The reason is, that by the appeal properly made, entertained, and decided, the jurisdiction in the case was suspended, or taken away from the inferior judge, and transferred to the superior, or judge of appeal. § 5. Expenses of Eeclesiastical Trials — By ivhom to be paid, also in the United States. 1 201. The expenses occasioned by trials in ecclesiastical courts, also with us, may be of two kinds : voluntar}- and necessary. The voluntary or optional {expensae voluntariae, delicatae) expenses are those which are incurred over and above what is necessary — v.g., a very liberal honorary to the advocate. The necessar}'^ are those outlays without which the trial cannot be well or properly carried on by the party, such as a moderate fee for the advocate, the ordinary travel- ling expenses of the litigant or his witnesses. 1202. The law of the Church is that in trials before the ec- clesiastical judge the party succumbing should never indeed be condemned to pay the voluntary expenses of the victor, but that he should be condemned to defray the necessary, if he rashly entered upon the cause or trial, whether as plain- tiff (prosecution) or defendant.' This holds not only in civil, ' L. 32, § 5, Sane, C. de Appell. (vii. 62). * Cap. 2 et 5, de Dol. et cont. (ii. 14); L. 13, §6, Slve autem, Cod, (iii. i). in Criminal Causes. 2S5 but also in criminal causes,' and that whether they are ushered in or tried by way of accusation, denunciation or inquiry, or exception. However, in purely criminal causes a distinction should be made between the plaintiff or prose- cution and the defendant. The latter is never considered rash for defending himself. For nobody can blame him for using all lawful means of escaping punishment, even though he is guilty. Hence he cannot, in any case, be condemned to pay the costs. With the former, the case is different, and he can be obliged to pay the costs.'' 1203. We say, if he 'RAStWLY entered upon the cause ; because a person who does not rashly go to trial cannot be con- demned to pay the expenses. Now a person is considered as having rashly entered upon a trial or cause, not^only when he does so from malice or deceit, but also when he does so imprudently and unadvisedly — i.e., without due diligence and examination of the matter, and without taking proper advice.' 1204. But, on the other hand, a person is not regarded as having rashly {teinere) entered upon a cause when he has a sufficient reason for believing in the justice of his cause — v.g., if he took the advice of canonists, and was informed by them that his cause was just* We observe here that the judge is bound to condemn the party who loses the case to pay the expenses of the victor onl}- when the latter so asks, either expressly or tacitly.' Again we note that the judge can at times condemn one of the litigants to defray the expenses of the other, even before the final sentence — v.g., where one party has proved his allegation, at IqslsX. prima facie, and the other delays his answer.^ 1205. What are the penalties incurred by ecclesiastical judges for any injustice committed by them in the course of ' Cap. 6, de Dol. (ii. 14); ib. Glossa, v. Expensas. 2 Reiff., 1. c, n. 177. ^ Schnialzg., 1. c, n. 115. < Reiff., 1. c, n. 180. 5 lb., n. 191-196. * Cap. 5, in 6° (ii. 14); Bouix, de Jud., vol. ii., p. 244. 286 Of the Ordinary Canonical Trial the trial ? By the law of the Church, an ecclesiastical judge, whether ordinary or delegate, who knowingly pronounces an unjust sentence, or commits some other act of injustice, in the course of the trial, whether through fear, favoritism, hatred, or hope of gain, is bound to pay the party whom he has injured all the expenses of the trial, and besides incurs suspension for a year ab officiis divinis. The latter — i.c.^ the suspension — is not incurred by bishops, as they are not ex- pressly mentioned in the law.* 1206. What has been thus far said, in the present article, regarding the indemnity to be paid by the succumbing party and by the judge, applies also in the United States, both in trials before our Commissions of Investigation, and other judicial proceedings. For, apart from any positive law of the Church, the very law of nature prescribes that where an ex- pense or damage has been wrongfully and wilfully caused by a party, it should also be made good by that party. Art. IV. Of Appeals. § I. Mode of Procedure in Appeals. 1207. We have already spoken at length of appeals." Here we shall add only a few remarks in regard to the mode of procedure to be followed in appeals, especially as appli- cable in the United States. Every appeal, as we have seen, has three principal stages : namely, {a) the making of the appeal — that is, the declaration made by the appellant to the judge a quo, either orally or in writing, that he appeals ; ib) the bringing of the appeal thus taken before the higher judge or superior, who is called judex ad quern ; {c) and the farther proceedings before the judex ad quern; in other ' Cap. I, de Sent, et re jud., in 6° (ii. 14); Schm^iZg., 1. c, n. 112. * Sugra, vol. i., n. 442-454; ib., p. 425. in Crhnmal Causes, 287 words, the hearing or trial of the appeal, or the prosecution of the appeal before the higher judge. 1208. I. First stage of the appeal. — As to the first stage, we have already seen that both in judicial and extrajudicial appeals the appeal must be taken, and the judge a quo as a rule notified of it, within ten days.' This notification, if the appeal is made ^d) from a definitive sentence, or {b) quasi- definitive sentence, — that is, an interlocutory sentence having the force of a final sentence, or inflicting an injury that can- not be repaired by a final sentence,' — need contain only the simple declaration that an appeal is taken from this or that sentence. 1209. But where the appeal is from a simple interlocutory sentence, or from an extrajudicial gravamen,^ the reasons for the appeal must be specifically set forth, so that the judge a quo, who can himself reverse such interlocutory sentence and redress such extrajudicial grievance, may be able to see whether he should himself correct his decision or not.* Of course, this notification should not contain an3^thing disre- spectful to the judge a quo!" We observe that in speaking of an appeal from a simple interlocutory sentence we do not mean an appeal or recourse proper, but simply a protest be- fore the judge a quo. For, as we have seen, no appeals are now allowed from such interlocutory decisions. 12 10. We said above," that the judge a quo must, as a rule, be notified of the appeal. This rule, like other rules, has its exceptions. These exceptions are {a) where the judge is inaccessible, {b) or where fear prevents the appellant from notifying him. In both these cases the proper course to pursue is this: The appellant can and should send his noti- fication of appeal directly to the judge of appeal, instead of ' Supra, n. 444. « Reiff., 1. 2, t. 28, n. 102. Schmalzg., 1. 2, t. 28, n. 61. * Cap. Cordi nobis i, de Appell., in 6° (ii. 15); cf. tamen ib. Glossa, v. Vel extra. * Miinchen, 1. c, vol. i., p. 595, n. 7. « lb., p. 531. « Supra, n. 1208. 288 Of the Ordinary Canonical Trial to the judge from wnom he appeals ; or if this is impracti- cable, he should protest or declare, in the presence of two or three worthy persons, that he wishes to appeal against an unjust sentence or gravamen, but that he does not venture to do so.' Both the notification to the judge of appeal, and the protest in the presence of worthy persons, must take place within the ten days allowed for appealing." If the notification is sent directly to the judge of appeal, he may be requested to inform the judge a quo of the appeal. ^ 121 1. Next, the appellant should ask and receive the apostoli from the judge a quo within thirty days." These thirty days run concurrently with the ten days allowed for appealing — that is, they begin, not at the expiration, but with the beginning of the ten days.* Hence the request for the apostoli may be and is very properly made simultaneously with the appeal itself.* The appellant should make this request humbly and urgently, though he need not make it more than once. The above spaces of time must be strictly observed, both in judicial and extrajudicial appeals. Their non-observance is fatal to the appeal — that is, causes it to be null. Hence these spaces of time are called dies fatales. This fatality to the appeal ensues even where the omission or non-observance of the above days is not culpable on the part of the appellant, being caused, v.g., by error, ignorance, etc. The only way in which such inculpable omission can be remedied, and the person wishing to appeal recover the right to appeal, is by his reinstatement or restitutio ift inte- grum,'' of which canonists treat under the title de in integrum restitutione. 12 1 2. n. Second stage of the appeal. — The judge <« ^«^ should give,^h? appellant the apostoli within the thirty days, as above stated, and besides a certified copy of the entire trial and ' Cap. 73, de Appell, (ii. 28). * Reiff., 1. c, n. 89-93. ^ Miinchen, 1. c, p. 531. * L. un. ff (xlix. 7); Clem. 2, de Appell. (ii. 12); Schmalzg., 1. c, n. 75. m Criminal Causes. 289 proceedings of the first instance. This ends the proceedings before the judge a quo. The second stage of the appeal, as we have seen, is the bringing of the appeal before the higher * judge. The letter or instrument by which the appellant brings his appeal before the higher judge should state, in general, the grievance or wrong suffered by the sentence of the inferior judge, and pray for a new hearing and decision of the cause. It should also mention that a notification of the appeal was sent to the judge a quo, and that the apostoli were asked for, etc. In a word, this letter should give the judge ad quern all such information as will enable him to know that the proper formalities have been complied with, and that consequently the appeal has been legitimately inter- posed. Besides, if anything has been attempted by \}s\q judex a quo, pending the appeal, this should also be mentioned.* 12 1 3. Now, when must the appellant thus bring his appeal before the superior or judge of appeal ? He must certainly do so within a year from the day he made the appeal, as only a year, and for just cause two years, are granted for hearing and deciding appeals. But it is not certain at what particu- lar time during the year this is to be done. Some hold that where the judge «^?/^ does not fix the time (as he can, though only within certain limits), it must be done six months from the day the appeal was first made.'' The safest way is to do so as soon as possible, in order to give the judge ad queni ample time to try the cause.^ 12 14. III. Third stage of the appeal.— T\iq third stage refers to the trial or hearing of the appeal by the 7W^jr This mode of procedure is substantially the same as that existing in England, and also recommended by the late Synod of Maynooth for Ireland, though its application is much wider with us than in England. In England this method was established in 1853 in the following manner: A committee of bishops was appointed in the First Provincial Council of Westminster, held July 6, 1852, for the purpose of preparing a mode of procedure 4i8 Appendix. 1519. I. Ad commissionem investi- gationis non recurratur, nisi prius clare et praecise exposita ab Episcopo causa ad deiectionem finalem movente, ipse rector missionarius malit rem ad Consilium deferri quam se a munere et officio sponte dimittere. 1520. 2. Re ad Consilium delata, Episcopus vicario suo generali vel alii sacerdoti ad hoc ab ipso deputato com- mittat, ut relationem causae in scriptis conficiat, cum expositione investiga- tionis eo usque peractae, et circum- stantiarum quae causam vel eiusdem demonstrationem specialiter afficiant. 1521. 3. Locum, diem, et horam opportunam ad conveniendum indicet, idque per litteras ad singulos consilia- rios. 1522. 4. Per litteras etiam Rectorem missionarium, de quo agitur, ad locum et diem constitutum ad Consilium habendum advocet exponens nisi pru- dentia vetat, uli in casu criminis oc- 1519. I. It shall not be allowed to have recourse to the Commission of Investigation unless the bishop be- forehand shall have stated in clear and precise terms the nature of the cause calling for final removal, and the mis- sionary rector shall have chosen to have the matter referred to the Council, rather than to resign of his own free will. 1520. 2. The matter having been laid before the Council, the bishop shall charge his vicar-general, or other 'priest deputed for this purpose by him- self, to draw up in writing a statement of the case, with an account of the in- vestigation as far as it has gone, and of the circumstances that may have a special bearing on the case or its es- tablishment. 1521. 3. He shall appoint a suitable place, day, and hour for the meeting, and notify the same by letter to each councillor. 1522. 4. He shall also by letter sum- mon the missionary rector in question to appear at the place and time ap- pointed for holding the meeting of the Council, staling in detail — except to be followed in deposing' a missionary rector from his parish. The method agreed upon by this committee was submitted by Cardinal Wiseman to the Sacred Congrega- tion of Propaganda, and approved by this Congregation by decree of August 4, 1853. (C. Prov. Westmonaster. I. apud Coll. Lac, vol. iii.,pp. 925, 960.) A comparison of the two documents shows that the S. C. de P. F. took the English docu- ment as the model for ours. For the latter is almost word for word the same with the former. The following are the only points of difference: According to the English docu- ment, it is necessary that two thirds of the Councillors should agree on a verdict or opinion ; according to ours, it is sufficient that a bare majority should agree. Then again, § Z, Si contingai : § i6. Omnia acta: §17, Si vera contingat, of our Instruction are omitted in the English mode of procedure. But apart from the form of trial, there are substantial points of difference as to its ap- plication with us and in England. In the latter country, at least by virtue of the First Provincial Council of Westminster, the benefit of the prescribed trial need be accorded only in the case of the final removal of a missionary rector from his parish. In the United States this trial must be given a defendant, not only where a rector (and with us all duly appointed pastors are rectors, whereas in England only a few pastors — namely, those of the principal parishes — are rectors) is to be dismissed, but also where a censure or an ecclesiastical punishment or a grave disciplinary chastisement is to be inflicted upon an ecclesiastic, whether he be a rector, or merely an assistant ; whether he be a priest, or only a deacon or sub-deacon, etc. Appendix. 419 culti, causam ad deiectionem moven- tem per extensum, monensque ipsum rectorem ut responsurn suis rationibus suffultum ad ea praeparet in scriptis, quae in causae expositione vel iam antea oretenus, vel tunc in scriptis relata fuerint. 1523. 5. Convenientibus consiliariis tempore et loco praefinitis, praecipiat Episcopus silentium servandum de iis, quae in Consilio audiantur; moneat investigationem non esse processum iudicialem, sed eo fine habitam, et eo modo faciendam, ut ad cognitionem veritatis diligentioriquapoterit ratione perveniatur, adeo ut unusquisque con- siliarius, perpensis omnibus, opin- ionem de veritate factorum, quibus causa innititur, efformare quam accu- rate possit. Moneat etiani ne quid in investigatione fiat, quod aut ipsos, aut alios, periculo damni vel gravaminis exponat, praesertim ne locus detur action! libelli famosi vel alii cuicumque processui coram tribunali civili. 1524. 6. Relatio causae legatur co- ram Consilio ab Episcopi officiali qui etiam ad interpellationes respondebit a praeside vel ab aliis consiliariis per praesidem faciendas ad uberiorem rei notitiam assequendam. 1525. 7. Deinde in Consilium intro- ducatur rector missionarius, qui re- sponsurn a se confectum leget, et ad interpellationes similiter respondebit, facta ipsi plena facultate ea omnia in medium afferendi, intra tempus tamen a Consilio determinandum, quae ad propriam defensionem conferre pos- sunt. where prudence forbids, as in the case of occult crime — the cause that calls for his dismissal, and warning him further to prepare a written answer, supported by proofs, to the charges and evidence so far given, and which had been already communicated to him orally, or were now (in the bishop's letter citing the rector) being set forth in writing. 1523. 5. When the Councillors assem- ble at the time and place set apart beforehand, the bishop shall enjoin secrecy upon all matters brought be- fore the Council; he shall further warn them that the investigation is not a judicial process, but undertaken for the purpose, and to be conducted in such a manner as to ascertain the truth with all possible care and dili- gence; so that each Councillor, having duly weighed all things, may be able to form an accurate opinion of the facts on which the case is based. He shall also warn them against anything during the investigation which might expose themselves or others to injury; above all, that no occasion be given for a libel suit or other action before a civil tribunal. 1524. 6. The written statement of the case shall be read before the Council by the official of the bishop, who will also answer all questions put to him by the president, or by the other Councillors through the president, in order to get at the full truth of the matter. 1525. 7. The missionary rector shall then be introduced into the Council, and read the answer he has prepared, and reply to all questions put as above stated. He shall, further, have full liberty to produce, yet within a period of time to be determined by the Coun- cil, whatever else may serve to his de- fence. 420 Appendix. 1526. 8. Si contingat rectorem mis- sionarium de cuius causa agitur, nolle ad Consilium accedere, iterum datis Uteris vocetur, eique congruum tem- poris spatium ad comparendum prae- finiatur, et si ad constitutum diem non comparuerit, dummodo legitime prae- peditus non fuerit, uti contumax habe- atur. 1527. 9. Quibus omnibus rite exple- tis Consiliarii simulconsilia conferant, et si maior pars consiliariorum satis constare de factis arbitretur, sentcn- tiam suam unusquisque consiliarius in scriptis exponat rationibus quibus nititur expressis; conferantur senten- tiae; acta in Consilio ab episcopi offi- ciali redigantur, a praeside nomine consilii subscribantur, et simul cum sententiis singulorum in exlenso ad Episcopum deferantur. 1528. 10. Quod si ulterior investiga- tio necessaria vel congrua videatur, eo ipso die vel alio ad conveniendum a Consilio constitute, testes vocentur, quos opportunos Consilium iudicav- erit, audito etiam rectore missionario de iis quos ipse advocandos esse volu- erit. 1529. II. Singuli testes pro causa seorsim et accurate examinentur a prae- side et ab aliis per praesidem, absente primum rectore missionario. Non re- quiratur iuramenium, sed si testes ipsi non renuant et se paratos esse declar- ent ad ea quae detulerint iuramento dataoccasione, confirmanda, fiat adno- tatio huiusmodi dispositionis seu de- clarationis in actis. 1530. 12. Consentientibus testibus, 1526. 8. Should it happen that the missionary rector, who is on trial, re- fuses to appear before the Council, he shall be summoned a second time by letter, and a suitable space of time fixed for his appearance. Should he fail to appear on the day appointed, unless he can plead a legitimate excuse, he shall be considered contumacious. 1527. 9. After all this has been duly done, the members of the Commis- sion shall take counsel together, and if the greater number of the Coun- cillors think the facts sufficiently proven, each Councillor shall state in writing his opinion, with the reasons on which it is grounded. The opinions shall then be compared. The acts of the Council shall be arranged or filed by the bishop's official, and signed by the president in the name of the Council, which, together with the opinions of each Councillor in full, shall be laid before the bishop. 1528. 10. Should further investiga- tion be deemed necessary or opportune, on the same day, or another day fixed by the Council for reassembling, those witnesses shall be called whom the Council may deem suitable, the mis- sionary rector having also been heard as to the witnesses he may wish to have summoned. 18. II. Each witness for the prose- cution shall be carefully examined, apart from the rest, by the president, and by the other Councillors through the president, and that first in the ab- sence of the missionary rector. No oath shall be required, but if the wit- nesses themselves be willing, and de- clare themselves ready, if opportunity be given, to confirm by oath their tes- timony, a note of this disposition or declaration shall be made in the min- utes of the proceedings. 1530. 12. Should the witnesses give Appendix. 421 et dirigente prudentia Consilii, repe- tatur testimonium coram rectore mis- sionario qui et ipse testes si voluerit interroget per praesidem. 1531. 13. Eadem ratione qua testes pro catisa, examinentur testes contra causam. 1532. 14. Collatis tunc consiliis fiat ut supra n. g. 1533- 15- Quod si testes nolint aut nequeant Consilio assistere, vel eorum testimonium nondum satis luculentum negotium reddat, duo saltem ex Con- silio deputentur, qui testes adeuntes, loca invisentes, vel alio quocumque modo poterunt, lumen ad dubia sol- venda requirentes, relationem suae in- vestigationis, ad Consilium deferant, ut ita nulla via intentata relinquatur ad verum moraliter certo cognoscendum antequam ad sententiae prolationem deveniatur. 1534. 16. Omnia acta occasione judicii in medium allata accurate in Curia Episcopal! custodiantur, ut in casu appellationis commode exhiberi valeant. 1535- 17- Si vero contingat, ut a sententia in Curia Episcopali prolata ad Archiepiscopalem provocetur, Met- ropolitanus eadem methodo in causae cognitione et decisione procedat. Datum Romae ex aedibus prefatae S. Congregationis die 20 lulii anni 1878. loANNES Card. Simeoni Praefectus. lOANNES BaPTISTA AgNOZZI Secretarius . their consent, and should the Council deem it prudent, the testimony shall be repeated in presence of the mis- sionary rector, who shall have the right of questioning, if he choose, the wit- nesses through the president. 1531. 13. The witnesses for the de- fence shall be examined in the same way as the witnesses for the prosecu- tion. 1532. 14. The Council shall then de- liberate, and act as provided above in No. 9. 1533- 15- Should the witnesses be un- willing or unable to appear before the Council, or their testimony throw in- sufficient light on the case, two mem- bers at least of the Council shall be deputed, who shall endeavor by every means in their power to clear up the doubts in the case, going to the witnes- ses, visiting the localities, and who shall submit to the Council a report of their investigation, so that nothing be left untried to discover with moral certainty the truth before sentence shall be pronounced. 1534. 16. All the records and docu- ments of the trial (namely, the min- utes of the proceedings, the various steps taken by the Council, the docu- ments submitted both by the prosecu- tion and the defence, etc.) shall be care- fully kept in the (archives of the) episco- pal court, so that they may be produced without difficulty in case of appeal. 1535- 17- Should it happen that an appeal be taken from the judgment pronounced in the episcopal court to that of the archbishop, the metropoli- tan shall proceed in the same way in the trial and decision of the cause. Given at Rome, from the house of the aforesaid Sacred Congregation, the 20th day of July, in the year 1878. John Card. Simeoni, Prefect. John Baptist Agnozzi, Secretary, 422 Appendix. II. AD DUBIA CIRCA MODUM SERVAN- DUM AB EPISCOPIS FOEDERATO- RUM SEPTENTRIONALIS AMERICAE STATUUM IN COGNOSCENDIS ET DEFINIENDIS CAUbIS CklMINALI- BUS ET DISCIPLINARIBUS CLERI- CORUM. 1536. Instructio diei 20 Julii 1878 lata est de casibus, in quibus ecclesias- tica poena seu censura sit infligenda, aut gravi disciplinari coercitioni sit locus. Hinc Concilii plenarii Balti- morensis II. decreta N. 125 quoad naturam missionum, NN. 77, 108 quoad juridicos effectus remotionis missionariorum ab officio nullatenus innovata seu infirmata fuerunt. 1537. Episcopi vero curent, ne sac- erdotes sine gravi et rationabili causa de una ad aliam missionem invitos transferant. Quod si de alicuius Rec- toris definitiva remotione a munere in poenam delicti infligenda agatur, id episcopi executioni non mandent nisi audito prius Consilio. 153B. 2. Electio consiliariorum fa- cienda est in synodo ad instar deputa- tionis, seucanonicae electionis judicum synodalium, qui non a clero, sed ab episcopo eliguntur, audito quidem con- silio clericorum in synodo, etsi ex causis sibi notis ilhid ainplecti postea episcopus noluerit, ut bene observat Benedictus XIV., De Syn., lib. IV. cap. V. num. 5. Hinc absonum est, ut in casu quo agit Instructio, horum consiliariorum electio ad clerum per- tineat. II. (ANSWER OF THE SACRED CONGRE- GATION DE PROPAGANDA FIDE) CONCERNING QUESTIONS (PRO- POSED BY BISHOPS OF THE UNITED STATES) IN REGARD TO THE MODE OF PROCEDURE TO BE FOLLOWED BY THE BISHOPS OF THE UNITED STATES OF NORTH AMERICA IN TAKING COGNIZANCE OF AND DE- CIDING CRIMINAL AND DISCIPLIN- ARY CAUSES OF ECCLESIASTICS. 1536. The Instruction of July 20, 1878, applies to cases where an eccle- siastical punishment or censure is to be inflicted, or where there is room for a grave disciplinary correction. Hence the decrees of the Second Plenary Council of Baltimore, No. 125, so far as regards the character of the mis- sions (congregations), and Nos. 77, 108, so far as concerns the juridical effects of the removal of missionaries from office, have in no wise been changed or annulled. 1537. Let bishops, however, take care not to transfer priests against their will from one mission to another without grave and reasonable cause. But when there is question of defini- tively removing a (missionary) rector from his office in punishment of a crime, the bishop shall not make such removal save upon having beforehand listened to the advice of the council. 1538. 2. The election of the coun- cillors must take place in (diocesan) synod, like the appointment or canoni- cal election of synodal judges, who are chosen, not by the clergy, but by the bishop. The latter (bishop) shall in- deed, before making the appointment of these synodal judges, take the ad- vice of the clergy assembled in synod, though, for reasons knoion to himself , he may not be willing afterivards to follow this advice, as Benedict XIV. well remarks in his work De Syn,, Appendix. 423 T539. Extra synodum electio abso- lute ad episcopum pertinet, quem decet, ut votum audiat reliquorum Con- siliariorum in casu subrogationis ali- cuius qui defecerit, prout episcopus in casu deficieniis judicis synodalis debet exquirere capituli consilium, sed illud sequi non tenetur. • 1540. 3. Votum a consilio da'um est semper consultivum, et sententia definitiva episcopo est reservata; quando enim canones dicunt aliquid ab episcopo de capituli vel cleri con- silio agendum esse, non propterea ne- cessitatem ipsi episcopo inducunt illud sequi, nisi expresse id caulum sit. Hinc recte dicitur in Instructione, hos consiliarios episcopo in causis definiendis auxiliian pi-aebere, minime vero ipsos deciderc. Sed inquisitionis acta, et op nio pandita a Consiliariis est sem- per inserenda processui. 1541. Ex quibus patet officium con- siliariorum judiciale qu dem esse, cum instructio sit iisdem commissa, ac tam- quam adsessores episcopo adsistant : sed patet etiam judicialis et definitivae sententiae prolationem episcopo esse unice reservatam. 1542. 2. Per Instructionem sublata non est episcopis extraordinaria fac- ultas, procedendi ad suspensionem ex lib. v., cap. v., num. 5. Hence it is incorrect to say, that in the case of which the Instruction treats the elec- tion of these councillors belongs to the clergy. I53g. Outside of the synod, the ap- pointment belongs absolutely to the bishop, although it is becoming that he should, in filling any vacancy which may occur in the Council, take the ad- vice of the remaining conncillors, just as the bishop, in the case of a vacancy occurring among the synodal judges, should indeed, before filling such va- cancy, ask the advice of the chapter, tliotigh he is not bou7id to follow it. 1540. 3. The opinion given by the Council is always consultative, and the final sentence is reserved to the bishop; for, when the canons say that something is to be done by the bishop with the advice of the chapter or clergy, they do not thereby impose upon the bishop the necessity of following such advice, except where this is expressly declared. Consequently the Instruc- tion rightly says, that these councillors aid the bishop in deciding causes, but not by any means that they them- selves decide. However, the acts of the investigation and the opinion rendered by the councillors must always be inserted in the process.' 1 541. From this it is evident that the office of the councillors is judicial indeed, since the hearing of the cause is committed to them, and they assist the bishop In the capacity of assessors; but it is also apparent that the passing of the judicial and final sentence is reserved exclusively to the bishop. 1542. 4. The Instruction does not deprive bishops of the extraordinary power of inflicting suspension "ex in- 1 Consequently the above acts and opinions must always be preserved, as essential parts of the whole trial. 424 Appendix. informataconscientia, quatenus gravis- simas et canonicas causas concurrere in Domino judicaverint, aut gravi et urgente necessitate pro salute anima- rum, etiam non audito Consilio, reme- dio aliquo providendum esse censu- erint. 1543. Liberum cuique rectori est alium sacerdotem ab episcopo appro- bandum secum habere coram consilio siv • ad simplicem dsistentiam sive ad suas animadversiones aut defen- sionem exhibendam. loAN Card. Simeoni, Sacr. Cong. Praef. I. B. Agnozzi, Secret. formata conscientia," if in the Lord they come to the conclusion that most grave and canonical causes exist there- for, or if they believe that, owing to grave and urgent necessity, provision must be made for the salvation of souls, by some extraordinary remedy, even without having previously heard the advice of the Council. 1543. Every rector is free to have ,with him before the Council another priest, who must be approved by the bishop, in order either to simply assist him (the rector), or to make remarks, or to conduct the defence. John Card. Simeoni, Prefect of the Sacred Congregation. J. B. Agnozzi, Secretary. III. THE CANONICAL TRIAL ADAPTED TO THE WANTS OF THE PRESENT DAY— INSTRUCTION OF THE S. C. EE. ET RR. AUTHORIZING ORDINARIES IN COUNTRIES NOT SUBJECT TO THE PROPAGANDA, TO CONDUCT ECCLESIASTICAL TRIALS, WITHOUT OBSERVING, IN CERTAIN CASES, ALL THE FORMALITIES PRESCRIBED BY CANON LAW. Instructio pro Ecclesiasticis Curiis quoad modujn procedendi oeconomice in causis disciplinaribus et criminalibus clericoru/n.^ 1544. Die II lunii 1880. — Sacra haec EE. et RR. Congregatio, mature praesenti Ecclesiae conditione perpensa, quae pene ubique impeditur, quominus externam explicet suam actionem super materias et personas ecclesiasticas, et considerate quoque defectu mediorum aptorum pro regulari Curiarum ordina- tione, constituit facultatem Ordinariis locorum expresse concedere, ut formas magis oeconomicas adhibere valeant in exercitio suae disciplinaris iurisdictionis super Clericis. Ut autem tota iustitiae ratio sarta tectaque maneat, ser- veturque processuum canonica regularitas et uniformitas, opportunum censuit sequentes emanate normas, a Curiis servandas. 1 This Instruction is of preat practical importance also for this country, since its pro- visions tend manifestly to explain the Instruction of the S. C. de P. F., of July 20, 1878. Cf. supra, n. 1512 sq.; Acta S. Sedis, vol. 13, p. 324 sq. Appendix. 425 1545. I. Ordinario pastorale onus incumbit disciplinam correctionemque Clericorum a se dependentium curandi, super eorumdem vitae rationetn vigi- lando, remediisque utendo canonicis ad praecavendas apud eosdem et elimi- nandas ordinis perturbationes. 1546. II. Ex his remediis alia praeveniunt, alia reprimunt et medelam affer- unt. Priora ad hoc diriguntur ut impediant quominus malum adveniat, ut scandali stimuli, occasiones voluntariae, causaeque ad delinquendum proximae removeantur. Altera finem habent revocandi delinquentes ut sapiant reparent- que admissi criminis consequentias. 1547. III. Conscientiae et prudentiae Ordinarii horum remediorum incumbit applicatio, iuxtacanonum praescriptiones, etcasuum adiunctorumque gravitatem. 154S. IV. Mediis quae praeservant praecipue accensentur spiritualia exer- citia, monitiones et praecepta. 1549. V. Has provisiones praecedere debet summaria facti cognitio quae ab Ordinario notanda est, ut ad uUeriora procedere, quatenus opus sit, et cer- tiorem reddere queat superiorem Auctoritatem, in casu legitimi recursus. 1550. VI. Canonicae monitiones fiunt sive in forma paterna et secreta (etiam per epistolam aut per interpositam personam) sive in forma legali, ita tamen ut de earumdem executione constet ex aliquo actu. 1551. VII. Quatenus infructuosae monitiones evadant, Ordinarius praecipit Curiae, ut delinquenti analogum iniungatur praeceptum, in quo declaretur quid eidem agendum aut omittendum sit, cum respondentis poena ecclesiasticae comminatione, quam incurret in casu transgressionis. 1552. VIII. Praeceptum intimatur praevento a Cancellario coram Vicario Generali; sive coram duobus testibus ecclesiasticis aut laicis probatae integri- tatis. § I, Actus subsignatur a partibus praesentibus et a praevento quoque, si velit. § 2. Vicarius Generalis adiicere valet iuramentum servandi secretum, qua- tenus id prudenter expetat tituli indoles, de quo agitur. 1553. IX. Quoad poenalia media, animadvertant reverendissimi Ordinarii, praesenti instructione baud derogatum esse iudiciorum solemnitatibus, per sacros Canones, per Apostolicas Constitutiones et alias ecclesiasticas dis- positiones imperatis, quatenus eaedem libere efficaciterque applicari queant; sed oeconomicae formae consulere intendunt illis casibus Curiisque, in quibus solemnes processus, aut adhiberi nequeant, aut non expedire videantur. Plenam quoque vim servat suam extraiudiciale remedium ex informata conscien- tia pro criminibus occultis, quod decrevit s. Tridentina Synodus in Sess. 14 cap. I. de Reform, adhibendum, cum illis regulis et reservationibus, quas constanter servavit pro dicti capitis interpretatione s. C. Congregatio in pluribus resolu- tionibus, et praecipue in Bosnien. et Siriuien. 20 Decembris 1873.^ 1554. X. Quum procedi oporteat criminaliter, sive infractionis praecepti, aut criminum communium, vel legum Ecclesiae violationis causa, processus confici potest formis summariis et absque iudicii strepitu, servatis semper regu- lis iustitiae substantialibus. • Cf. Acta S. Sedis, vol. vii. pag. 569. 426 Appendix. 1555. XI. Processus instruitur ex officio aut in sequelam supplicis libelli et querelae, aut noiitiae, alio modo, a Curia habitae, et ad finem perducitur eo consuio, ut omni studio atque prudentia Veritas detegatur, et cognitio turn criminis, cum reitatis aut innocentiae accusati exurgat. 1556. XII. Processus confectio committi potest alicui proboat que idoneo ecclesiastico, adstante Actuario. 1557. XIII. Unicuique Curiae opus est Procuratore fiscali pro iustitiae et legis tutela. 1558. XIV. Quatenus pro intimationibus aut notificationibus, baud praesto sit opera Apparitorum Curiae, suppietur exhibitione earumdem explenda per qualificatam personam, quae de facto cerlioret; sive eas transmittendo, ope commendationis penes tabellariorum officium.illis in locis in quibus hoc invaluit systema, exposcendo fidem exhibitionis, receptionis aut repudii. 1559. XV. Basis facti criminosi constitui potest per expositionem in pro- cessu habitam, authenticis roboratam informationibus aut confessionibus extra- iudicialibus. vel testium depositionibus, et quoad titulum transgressionis prae- cepti constat per novam exhibitionem decreti et actus indictionis, perfectorum modis enuntiatis Art. VII. et VIII. 1560. XVI. Ad retinendam in specie culpabilitatem accusati opus est pro- batione legali, quae talia continere debet elementa, ut veritatem evincat, aut saltem inducat moralem certitudinem, remoto in contrarium quovis rationabili dubio. 1561. XVII. Personae, quas examinare expediat, semper audiunturseparatim. 1562. XVIII. Testes ad probationem, aut ad defensionem, quoties legalia obstacula baud obsistant, sub iuramento audiri debent, quod extendi potest, si opus sit, ad obligationem secreti. 1563. XIX. Testium absentium, aut in aliena Dioecesi morantium exposcitur examen in subsidium ab Ecclesiastica loci auctoritate, eidem transmittendo pros- pectum facti; et Auctoritas requisita petitioni respondet, servando praesentis instructionis normas. 1564. XX. Quoties indicentur testes ob facta aut adiuncta essentialiter utilia merito Causae, qui examini subiici nequeant, eoquod censeatur baud con- venire ut vocentur, aut quia vocati abnuant, mentio eorumdem fit in actibus, et curatur supplere eorum defectui per depositiones aliorum testium, qui de relate aut alia ratione, noverint id quod exqulritur. 1565. XXI. Quum collectum fuerit quidquid opus sit ad factum et accusati responsabilitatem constituendam, vocatur iste ad examen. 1566. XXII. In indictione, nisi prudentia id vetet, exponuntur ei per extensum accusationes adversus eum collatae, ut parari valeat ad respondendum. 1567. XXIII. Quando autem ob accusationum qualitates, aut ob alia adiuncta prudens non sit in actu intimationis eas patefacere, in hac solum innuitur eumdem ad examen vocari ut sese excuset in Causa, quae ipsum respicit uti accusatum. 1568. XXIV. Si iudicio sistere abnuat, iteratur indictio, in quo eidem praefigitur congruum peremptorium terminum, eique significatur quod si adhuc obedire renuat, habebitur ceu contumax; et pro tali in facto aestimabitur, quatenus absque probato legitime impedimento, istam quoque posthaberet intimationem. Appendix. 427 1569. XXV. Si compareat, auditur in examine; et quatenus inductionesfaciat alicuius momenti, debent istae, quantum fieri potest, exliauriri. 1570. XXVI. Proceditur inde ad contestationem facti criminosi, et conclu- sionum habitarum, ad retinendum accusatum criminosum lapsumque in relativis poenis canonicis. 1571. XXVII. Quum accusatus, tali modo, habeat plenam cognitionem eius quod in actis extat contra se, ultra quod respondere possil, iure sedefendendi a semetipso etiam uti valet. 1572. XXVIII. Potest quoque, si id expetat, obtinere praefixionem termini ad exhibendam defensionem cum memoria in scriptis, praecipue quando ob dis- positionem Art. XXIII. nequiverit paratus esse ad responsa pro sua excusa- lione. 1573. XXIX. Expleto processu, actorum instructor, restrictum conficit essen- tialium conclusionum eiusdem. 1574. XXX. In die qua Causa proponitur, est in facultate accusati faciendi se repraesentare et defendere ab alio Sacerdote aut laico Patrocinatore, antea approbatis ab Ordinario. 1575. XXXI. Quatenus praeventus constituere defensorem renuat, Ordinarius consulit constituendo aliquem ex officio. 1576. XXXII. Defensor caute nolitiam haurit processus et restricti in Cancel- laria, ut paratus sit ad defensionem peragendam, quae ante propositionem causae exhiberi potest in scriptis. Ipse quoque subiicitur oneri secret! iurati, quatenus Ordinario videatur indolem Causae id expostulare. 1577. XXXIII. Transmittiturdein Procuratori fiscali processus et restrictus, ut munere suo ex officio fungatur; uterque Ordinario traditur qui plena Causae cognitione adepta, diem constituit in qua disceptanda et resolvenda sit, curans ut accusatus certior de hoc fiat. 1578. XXXIV. Die constituta proponitur Causa coram Vicario general!, inter- essentibus Procuratore fiscali, Defensore et Cancellario. 1579. XXXV. Post votum Procuratoris Fisci et deductiones defensionis pro- fertur sententia, dictando dispositivam Cancellario, cum explicita mentione, in casu damnationis, canonicae sanctionis, accusato applicatae. 1580. XXXVI. Sententia indicitur praevento, qui appellationem interponere potest ad Auctoritatem Ecclesiasticam superiorem. 1581. XXXVII. Pro appellatione servantur normae statutae a Constitutione Ad ntilitantes %. m. Bened. XIV. 30 Martii 1742, aliaeque emanatae ab hac s. Congregatione Decreto 18 Decembris 1835 ' et Littera circular! diei i Augusti 1851. 1 En in commodum lectorum decretum huiusmodi. Haud referimus litteram prolixam diei I Aug^usti 1831, quoniam praecipuae eiusdem praescriptiones in praesenti Instructione relatae nobis videntur. Decretum pro Causis Criminalibus. Non ita pridem a. s. Congregatione negociis, et consultationibus Episcoporutn, et Regularium praepositae nonnullae regulae praescriptae fuerunt pro recta, et expedita definitione causarum criminalium, quae a Curiis Episcoporum, vel Ordinariorum ad eamdem s. Congregationem in gradu appellationis deferuntur. Quas quidem praescriptiones, quoniam impedimenta sublata sunt, quae aliqua ex parte earum executioni interposita fuerant, visum est Eminentissimis Patribus in Conventu habito xv. Calend. Januar. mdcccxxxv. uberius explicare, et cum assensu, et approbatione S. D, N. 428 Appendix. 1582. XXXVIII. Comparitio pro appellatione facienda est infra terminum decern dierum a notificatione sententiae; quo termino inutiliter elapso, sententia ipsa in executionis statu reperitur. 1583. XXXIX. Interposita appellatione infra decern dies, Curia absque mora remittit ad Auctoritatem ecclesiasticam superiorem, apud quam appellatio facta est, omnes actus Causae originales, idest processum, restrictum, defensiones et sententiam. 1584. XL. Auctoritas ecclesiastica superior, capta cognitione actus appel- Gregorii XVI. iterum promulgare, ut ab omnibus, ad quos pertinent, accuratissimae serventur. Sunt autem quae sequuntur. I. Reis a Curiis Episcopalibus criminali iudicio damnatis spatium dierum decern conceditur, quo ad s. Congregationera Episcoporum, et Regulanum appellare possint. II. Decem dies numerari incipient non a die, quo sententia lata est, sed a die, quo reo vel eius defensor! per Cursorem denunciata fuit. III. Eo tempore elapso, qui n reus vel eius defensor appellaverit, latam a se sententiam Episcopus exequetur. IV. Interposita intra decem dies appellatione Curia Episcopalis acta autographa totius causae ad s. Congregationem continue transmittal, nempe 1. Processum ipsum in Curia confectum. 2. Eius restrictum, seu compendiariam expositionem eorum, quae ex eodem processu cmergunt. 3. Defensiones pro reo exhibitas. 4. Denique sententiam latam. V. Ipsa Curia reo, eiusque defensori denunciabit, appellationem coram eadem s. Congre- gatione prosequendam esse. VI. Si nemo compareat, aut si appellationis acta negligenter vel malitiose protrahantur, •ongruens tempus a s. Congregatione praeiinietur, quo inutiliter elapso, causa deserta cen- seatur, et sententia Curiae Episcopalis execution! mandetur. VII. Reo, aut illi, qui eius defensionem suscepit, tradendus est restrictus processus, qui a Judice relatore conficitur. VIII. Allegationes, seu defensiones Eminentissimis Patribus distribuendas typis non com- mittantur, nisi ludex relator imprimendi veniam dederit. IX. Causa definietur stata die ab Eminentissimis Patribus in pleno Auditorio congregatis. X. Eidem Congregationis Procurator Generalis Fisci, et Judex relator intererunt. XI. Index relator de toto statu causae ad Eminentissimos Patres refert, et Procurator Generalis Fisci stabil pro Curia Episcopali, suasque conclusiones explanabit. XII. Post haec Eminentissimi Patres indicium proferent, sententiam Curiae Episcopalis aut confirmando, aut infirmando aut etiam reformando. XIII. Prolata Sententia una cum omnibus Actis causae ad eamdem Curiam Episcopalem remittitur, ut eam exequatur. XIV. Revisio, seu recognitio rei iudicatae non conceditur, nisi eius tribuendae potestas a Sanctitate Sua facta fuerit, et subsint gravissimae causae, super quibus cognitio, et indicium ad plenam Congregationem periinet. XV. Sciant denique Curiae Episcopales per novissimas leges, quae ad investiganda, et coercenda crimina pro Tribunalibus laicis promulgatae sunt, nihil detractum esse de formis, et regulis Canonicis, quas proinde sequi omnino debent, non modo in conficiendo processu, ad quem spectant haec verba Edicti die 5 Novembris 1831 - Nihil innovetur, gttantum ad iudicio. ecclesiastica pertinet - verum etiam in poenis decernendis, quemadmodum in appendice eius- dem Edicti ita cautum est - Tribunalia iurisdictionis mixtae Clericos, et Personas ecclesi- asticas iis poenis mulctabunt, guns secundum Canones, et Constitutiones Apostolicas Tribunal Ecclesiasticum iisdem irrogaret -. J. A. Card. Sala Praefectus. I. Patriarcha Constantinopolitanus Seer. Appendix, 429 lationis, intimare facit appellanti, ut infra terminum viginti dierum Defensorem constituat, qui approbari debet ab eadem superiori auctoritate. 15S5. 41. Decurso dicto termino peremptorio absque effectu, censetur appellantem nuncium misisse appellationis beneficio, et haec consequenter perempta declaratur a superiori auctoritate. 1586. 42. Quum appellatio producitur a sententia alicuius Curiae episco- palis ad Metropolitanam, Archiepiscopus pro cognitione et decisione Causae sequitur normam procedendi in hacinstructione traditam. 1587. 43. Si contingat quod Clericus, non obstante fori privilegio, ob crimina communia subiiciatur processui et iudicio laicae potestatis, Ordinarius, hoc in casu, summariam sumit criminosi facti cognitionem, atque perpendit an ipsum, ad tradita per sacros canones, locum faciat infamiae, irregularitati, aut alii ecclesiasticae sanctioni. § I. Donee iudicium pendeat, aut accusatus detentus sit, prudens est, quod Ordinarius sese limitet ad media provisoria. § 2. Expleto tamen iudicio, et libero reddito accusato, Curia iuxta exitum informationum ceu superius assumptarum, procedit ad tramites dispositionum praesentis instructionis. 1588. 44. In casibus dubiis, et in variis practicis difiicultatibus, quae con- tingere possint, Ordinarii consulant banc s. Congregat., ad vitandas con- tentiones et nullitates. Ex Aud. SSnii. did II lunii i88o. SSmns Diius Noster LEO div. prov. PP. XI TL, audita relatione praesentis Instructionis ab ittfrascripto Sacr. Congteg. Episcopor. et Regularium Secretariat, earn in omnibus approbare et confirmare dignatus est. Romae die et anno quibus supra. I. Card. Ferrieri Praef. I. B, Agnozzi Secretarius ... 430 Appendix. IV. CONSTITUTIO BENEDICTI PP. XIV. In qua praescribitur ordo et forma in iudiciis Causarum matrimonialium super matrimoniorum validitate vel nullitate declaranda servandus} BENEDICTUS EPISCOPUS SERVUS SERVORUM DEI AD PERPETUAM REI MEMORIAM. 1589. Dei miseratione, cuius iudicia incomprehensibilia sunt, et viae investiga- biles, in suprema Ecclesiae specula immerentes constituti, uf super universum Dominicum gregem excubias sedulo agamus, ad commissum pastoralis officii munus pertinere dignoscimus subnascentes ex infernalis hostis astutia, et homi- num malitia abusus, quibus et animarum saluti pernicies, et sacramentis Eccle- siae iniuria infertur, radicitus evellere, et potestatis Nobis desuper traditae operam interponere, ut et humana cohibeatur temeritas, et veneranda divinae legis servetur auctoritas. 1590. § I. Siquidem matrimonii foedus a Deo institutum, quod et quatenus naturae officium est, pro educandae proHs studio, aliisque matrimonii bonis servandis, perpetuum et indissolubile esse convenit; et quatenus est catholicae Ecclesiae sacramentum, humana praesumptione dissolvi non posse, Sal vator ipse ore suo pronunciavit dicens: Quod Deus coniunxit, homo non separet; ad auras Apostolatus Nostri pervenit, in quibusdam ecclesiasticis Curiis inconsulta nimis iudicum facilitate infringi, et temere atque inconsiderate deeorumdem matrimo- :niorum nullitate latis sententiis, potestatem coniugibus fieri transeundi ad alia •vota. Quos sane improvidos iudices humanae naturae conditione et voce ipsa quodammodo admoneri oportebat, ne tam praecipiti audacia sanctum matrimo- nii nexum frangerent, quem perpetuum atque indissolubilem primus humani generis parens praemonuit inquiens: Hoc nunc os ex ossibus meis, et caro de came 7Hea, et illud additum est: Quamobrem relinquet homo patrem suum et matrem, et adhaerebit uxori suae, et erunt duo in came una. 1591. § 2. Huiusmodi autem abolendae pravitatis notitia diversis ex partibus Nobis delata est, atque etiam indicata sunt exempla nonnuUorum virorum, qui post primam et secundam ac tertiam, quam duxerant, uxorem ob nimiam iudi- cum praecipitantiam in nullitate matrimoniorum declaranda, adhuc illis primis uxoribus superstitibus, ad quartas contrahendas nuptias devenerant; et similiter feminarum, quae post primum, secundum et tertium maritum, quarto etiam, illis quoque viventibus, se iunxerant, non sine pusillorum scandalo, et bonorum om- nium detestatlone, qui sacra matrimonii vincula ita contemni, et temere per- ' Nearly this whole constitution is taken up in defining the duties of the judge, of the de- fender of the marriage, the force and effect of sentences in matrimonial causes. Cf. supra, n. 1450, sg. Appendix. 43 1 fringi dolebant. Nos autem, his intellectis, gravi affecti dolore, intimo animo ingemulmus, et non praetermisimus apostolicae nostrae sollicitudinis partes in Domino adimplere. Siquidem primo Pontificatus nostri anno ad Episcopos il- larum partium, in quibus praedicta acciderant, plenissimis datis literis, graviter conquest! sumus de huiusmodi pravitate, quae in Ecclesia Dei tolerabatur, et ad earn abolendam eorum animos erigere, et pastoralem zelum accendere curavi- mus: quod etiam egimus cum aliis aliarum regionum Episcopis, ubi huiusmodi pravum dirimendorum matrimoniorum usum irrepsisse cognovimus. 1592. § 3. Verum Nobis responsum est, id saepe contingere partim ex culpa illorum ludicum, quibus vel in prima instantia, cum causa coram ludice ordina- rio ex aliqua legitima causa cognosci nequit, vel in secunda, cum in partibus nullus adest ludex, ad cuius tribunal causa in gradu appellationis devolvatur, vel si adest, iusta de causa coram eo disceptari nequit, causae matrimoniales huiusmodi a Sede apostolica committuntur, qui vel ob inscitiam, vel ob malam voluntatem proclives sunt ad matrimonia dissolvenda, atque eadem matrimonia, levi vel etiam nullo habito examine, irrita ac invalida declarant; partim etiam ex facto coniugum super nullitate suorum matrimoniorum litigantium, cum fre- quenter unus tantum eorum, qui dissolutionem matrimonii postulat, in iudicio compareat, et senientia, nullo contradicente, secundum sua vota obtenta, ad alias nuptias convolat; vel ambobus coniugibus in indicium venientibus, alter qui pro matrimonio, alter vero qui contra agit, sententia de nullitate matrimonii prolata, nullus est, qui ad superiorem ludicem appellationem interponat, vel quia litigantes in specie quidem discordes, re vera inter se Concordes sunt, et invicem colludentes, contractum matrimonium dissolvi cupiunt; vel quia pars, quae pro validitate matrimonii stabat, eiusque nullitatem acriter contra adver- sarium impugnabat, lata a ludice sententia contra matrimonium, mutat volunta- tem, vel pecunia sibi ad sumptus litis non suppetente, vel aliis deficientibus aux- iliis ad litigandum necessariis, et incoeptum opus ac causam post primam sen- tentiam deserit. Quo fit, ut deinde ambo coniuges, vel unus eorum ad aliud contrahendum matrimonium se conferat. 1593- § 4- Quod autem ad Indices pertinet, quibus extra romanam Curiam pro litigantium commodo causae matrimoniales committuntur, paterna ilia vigi- lantia, qua de iustitia unicuique integre sapienterque administranda solliciti esse debemus, encyclicis literis ad venerabiles fratres Patriarchas, Primates, Archi- episcopos et Episcopos scriptis vicesima sexta augusti anno secundo Pontificatus nostri, providere curavimus, in quibus ea praescripsimus, quae sacris Canoni- bus, et Concilii tridentini decretis consona, si diligenter, utsperamus, serventur, in posterum causae non nisi personis congrua iuris peritia et necessario probi- tatis spectataeque fidei munitis praesidio committentur. Insuper ad ea, quae in iisdem encyclicis literis constituta sunt, id etiam in praesenti adiungimus; quod, quamvis Concilii tridentini decretum, quo causae matrimoniales subtractae fue- runt Decani, Archidiaconi et aliorum inferiorum iudicio, et Episcoporum tantum examini et iurisdictioni reservatae, dumtaxat procedat de Archidiaconis, Deca- nis, aliisque inferioribus, qui in eadem dioecesi constituti, vel privilegio aliquo vel praescriptione, saltem in visitatione, causarum matrimonialium cognitionem sibi adrogabant; ac idcirco minime obstet commissionibus, quae pro iisdem cau- sis matrimonialibus definiendis a Sede apostolica alicui eorum in secunda instan- 432 Appendix. tia fierent; nihilominus praecipimus ac mandamus iis, ad quos huiusmodi com- missionum seu delegationum expediendarum cura pertinet, ut in futurum causarum matrimonialium cognitionem non committant nisi Episcopis prae- sertim vicinioribus, vel si nullus sit Episcopus, cui ex legitima causa commode committi possit, turn commissio et delegatio dirigatur uni ex iis, qui secundum ordinem et modum a Nobis in praefatis encyclicis literis praescriptum pro ludice idoneo ab Episcopo cum consilio sui Capituli nominatus fuerit. 1594. § 5. Quod vero ad ordinem, et seriem iudiciorum in causis matrimoni- alibus pro debita et congrua earum terminatione servandum spectat, motu pro- prio, certa scientia ac matura deliberatione nostris, deque apostolicae potestatis plenitudine hac nostra in perpetuum valitura sanclione constituimus, decerni- mus ac iubemus, ut ab omnibus et singulis locorum Ordinariis in suis respective dioecesibus persona aliqua idonea eligatur, et si fieri potest, ex ecclesiastico coetu, iuris scientia pariter et vitae probitate praedita, quae matrimoniorum defensor nominabitur, cum facultate tamen earn suspendendi, vel removendi, si iusta causa adfuerit, et substituendi aliam aeque idoneara et iisdem qualitatibus orna- tam, quod etiam fieri poterit, quotiescumque persona ad matrimoniorum defen- sionem destinata, cum se occasio agendi obtulerit, erit legitime impedita. 1595. § 6. Ad ofRcium autem defensoris matrimoniorum huiusmodi, ut supra electi, spectabit in iudicium venire quotiescumque contigerit, matrimoniales causas super validitate vel nullitate coram legitimo ludice disceptari, eumque oportebit in quolibet actu iudiciali citari, adesse examini testium, voce et scrip- tis matrimonii validitatem tueri, eaque omnia deducere, quae ad matrimonium sustinendum necessaria censebit. 1596. § 7. Et demum defensoris huiusmodi persona, tanquam pars necessaria ad iudicii validitatem et integritatem censeatur, semperque adsit in iudicio sive unus ex coniugibus, qui pro nullitate matrimonii agit, sive ambo, quorum alter pro nullitate, alter vero pro validitate in iudicium veniant. Defensor autem, cum ei munus huiusmodi committetur, iuramentum praestabit fideliter officium suum obeundi, et quotiescumque contigerit, ut in iudicio adesse debeat pro alicuius matrimonii validitate tuenda, rursus idem iuramentum praebebit: quae- cumque vero, eo non legitime citato aut intimato, in iudicio peracta fuerint, nulla, irrita, cassa declaramus, ac pro nullis, cassis ac irritis haberi volumus, perinde ac si citata et intimata non esset ea pars, cuius citari intererat, et quam iuxta legum et canonum praescripla ad legitimam iudicii validitatem citari aut intimari omnino necessarium erat. 1597. § 8. Cum igitur coram Ordinario, ad quern causas huiusmodi cognoscere pertinet, controversia aliqua proponetur, in qua de matrimonii validitate dubi- tabitur, et existentibus in iudicio vel uno ex coniugibus, qui pro nullitate matri- monii, vel ambobus, quorum alter pro validitate, alter vero pro nullitate actionem intendat, defensor matrimonii partes omnes officii sui diligenter adimpleat. Ita- que si a ludice pro matrimonii validitate iudicabitur, et nullus sit qui appeJlet, ipse etiam ab appellatione se abstineat: idque etiam servetur si a ludice secun- dae instantiae pro validitate matrimonii fuerit iudicatum, postquam ludex primae instantiae de illius nullitate sententiam pronunciaverat; sin autem contra matri- monii validitatem sententia feratur, defensor inter legitima tempora appellabit adhaereqs parti, quae pro validitate agebat; cum autem in iudicio nemo unus Appendix. 433 sit, qui pro matrimonii validitate negotium insistat, vel si adsit, lata contra eum sententia, iudicium deseruerit, ipse ex officio ad superiorem ludicem provocabit. 1598. § g. Appellatione a prima sententia pendente, vel etiam nulla obmali- tiam vel oscitantiara vel collusionem defensoris et partium interposita si ambo vel unus ex coniugibus novas nuptias celebrare ausus fuerit, volumus ac decer- nimus, ut non solum serventur quae adversus eos, qui matrimonium contra in- terdictum Ecclesiae contrahunt, statuta sunt, praesertim ut invicem a cohabita- tione separentur, quoadusque altera sententia super nullitate emanaverit, a qua intra decent dies non sit appellatum, vel appellatio interposita deserta deinde fuerit; sed ulterius ut contrahens vel contrahentes matrimonium huiusmodi omni- bus poenis contra poligamos a sacris Canonibus et Constitutionibus apostolicis conslitutis omnino subiaceant, quas in eos, quatenus opus sit, motu, scientia ac potestate simili rursus statuimus, decernimus ac renovamus. 1599. § 10. Posteaquam vero appellationis beneficio ad alterum ludicem causa in secunda instantia delata fuerit, omnia et singula quaecumque coram ludice in prima instantia servanda praefinita fuerunt, etiam coram altero in se- cunda exacte ac diligenter custodientur, citato in quolibet iudicii actu defensore matrimonii, qui voce et scripto matrimonii validitatem strenue ac pro viribus tuebilur, et si ludex in secunda instantia fuerit Metropolitanus, aut Sedis apos- tolicae Nuncius, aut Episcopus vicinior, matrimonii defensor sit qui ab ipsis fue- rit deputatus, quemadmodum ipsis deputare mandamus, ut quae a Nobis supe- rius constituta sunt, peragere possit; si autem ludex in secunda instantia erit ludex commissarius, cui a Sede apostolica causae cognitio demandata sit, et qui tribunal et iurisdictionem ordinariam non habeat, et propterea careat defensore matrimonii, volumus, ut illo defensore matrimonii utatur, qui constitutus fuerit ab Ordinario, in cuius dioecesi causam cognoscet, etiam si idem Ordinarius sit, qui primam sententiam in eadem causa pronunciaverit. 1600. § II. Instructo autem in hunc modum iudicio, si secunda sententia alter! conformis fuerit, hoc est, si in secunda aeque ac in prima nullum ac irri- tum matrimonium iudicatum fuerit, et ab ea pars vel defensor pro sua conscien- tia non crediderit appellandum vel appellationem interpositam prosequendam minime censuerit, in potestate et arbitrio coniugum sit novas nuptias contrahere, dummodo alicui eorum ob aliquod impedimentum vel legitimam causam id veti- tum non sit. Potestas tamea post alteram sententiam conformem, ut su'pra, coniugibus facta intelligatur et locum habeat, salvo semper et firmo remanente iure seu privilegio causarum matrimonialium, quae ob cuiuscumque temporis lapsum nunquam transeunt in rem iudicatam; sed si nova res, quae non deducta vel ignorata fuerit, detegatur, resumi possunt, et rursus in iudicialem contro- versiam revocari. Quod si a secunda sententia super nullitate vel altera pars appellaverit, vel huiusmodi sit, ut ei salva conscientia, defensor matrimonii ac- quiescendum non putet, vel quia sibi videtur manifeste iniusta vel invalida, vel quia fuerit lata in tertia instantia, et sit revocatoria alterius praecedenlis super validitate in secunda instantia emanatae, volumus, ut firma remanente utrique coniugi prohibitione ad alias transeundi nuptias, quas si contrahere ausi fuerint, poenis, ut praefertur, 'a Nobis constitutis subesse decernimus, causa in tertia vel quarta instantia cognoscatur, servatis diligenter omnibus, quae a Nobis in prima et secunda instantia demandata fuerunt, nempe in quolibet iudiciali actu 434 Appendix. citato et audito defensore matrimonii, qui a ludice teniae instantiae deputatus fuerit. 1601. § 12. Defensor autem matrimonii, quern ad munus suum gratis obe- undum pro amore Dei, et proximi utilitate, et Ecclesiae reverentia in Domino exhortamur, si operam suam sine mercede aut salario aliqua ex causa exhibere recusaverit, ab ipsius causae ludice ei constituatur, et ab ea parte, quae pro va- liditate matrimonii agit, si ipsi facultas sit, solvatur, sin minus a ludice primae vel secunda vel tertiae instantiae respective subministrabitur, qui pecunias ex mulctis suorum tribunalium redactas vel redigendas, et in opera pia erogandas, in huiusmodi sumptus insumere poterunt. Cum vero iudices causae erunt ludices commissarii, qui neque forum habent, et consequenter neque pecuniam ex mulctis collectam, volumus ac mandamus, ut defensori matrimonii satisfiat ex pecunia mulctarum illius Episcopi, in cuius dioecesi ludex commissarius iuxta Sedis apostolicae mandatum indicium exercebit. 1602. § 13. Hactenus quidem quoad causas matrimoniales, quae extra ro- manam Curiam pertractantur. Quoad causas vero, quae Romae disceptandae sunt, cum earum cognitio in prima instantia ad S. R. E. Cardinalem in praefata Urbe, eiusque Suburbiis et districtu Vicarium nostrum in spiritualibus pro tem- pore spectet, mandamus ac iubemus, ut omnia et singula, quae in aliis causis extra romanam Curiam pertractandis praescripta fuerunt, nempe ut indicium peragatur citato et audito defensore matrimonii ab eodem Cardinal! Vicario deputato, aliaque ut supra omnino serventur, tum etiam in aliis causis, quae in prima instantia ex consensu partium, vel in secunda per appellationem ad Se- dem apostolicam, omisso medio, interpositam, vel in tertia Romam deferuntur, quas omnes iudicari volumus vel in Congregatione S. R. E. Cardinalium super interpretatione et executione Concilii tridentini, vel in causarum Palatii nostri Auditorio, dummodo Nobis et romano Pontifici pro tempore iustis ex causis non videatur particularis Congregatio S. R. E. Cardinalium, vel romanae Curiae Praelatorum deputanda. Cum autem causa super matrimonii nullitate agitabi- tur in dicta Congregatione S. R. E. Cardinalium Concilii tridentini interpretum, defensor matrimonii a Cardinal! Praefecto eiusdem Congregationis, si vero in Palatii nostri Auditorio, ab Auditore decano praefati tribunalis, si demum in Congregatione particulari, a persona eiusdem Congregationis digniore depu- tetur. 1603. § 14. Unica quidem resolutio pro nullitate matrimonii einanata, si causa in Congregatione Cardinalium Concilii tridentini interpretum, vel in Con- gregatione particulari deputata cognoscatur, et similiter in Palatii nostri Audi- torio, unica sententia super eadem nullitate pronunciata minime sufficiat ad tri- buendam liberam coniugibus facultatem novas nuptias contrahendi, sed si causa in praefata Congregatione Cardinalium tridentini Concilii interpretum intro- ducta fuerit, rursus in eadem ad defensoris matrimonii instantiam reproponatur; si vero Congregationi particulari commissa fuerit, ad petitionem eiusdem defen- soris altera etiam particularis Congregatio deputabitur; si vero in Palatii nostri, Auditorio iudicata sit, a praefato defensore appellatione interposita, ab aliis Auditoribus iuxta ordinem in gyrum seu turnum definiatur; si autem causa uni- verso tribunali commissa fuerit, ob omnibus Auditoribus rursus examinabitur nolentes omnino, ut nullo in casu matrimonii vinculum dissolutura censeatur. Appendix. 435 nisi duo iudicata vel resolutiones aut sententiae penitus similes et conformes, a quibus neque pars, neque defensor matrimonii crediderit appellandum, emanav- erint; quod si secus factum fuerit, et novum initura matrimonium, nostrae vol- untatis huiusmodi transgressores poenis a Nobis ut supra statutis submittantur. 1604. § 15. Et quoniam saepe apud Sedem apostolicam preces porrigi solent pro dispensatione matrimonii rati et nonconsummati, quaeut plurimum pro voto consultivo ad Congregationem S. R. E. Cardinalium Concilii interpretum, vel nonnunquam ad aliquam Congregationem particularem deputatam a romanis Pontificibus pro tempore remitti solent, ut huiusmodi instantiae ordine ac rite procedant, volumus ac mandamus, ut supplex libellus Nobis vel romano Pontifici pro tempore exhibeatur, in quo plena et accurata totius facti species contineatur, causaeque omnes in eo exprimantur, quae ad obtinendam petitam dispensationem conducere posse a supplicante censentur, ut romanus Pontifex, eo lecto et ma- ture considerate, secum deliberare possit, an petitionem reiiciat, vel eius examen alicui ex dictis Congregationibus committat, a qua posteaquam suum votum con- sultivum editum fuerit, a Secretario eiusdem Congregationis totius negotii series exacte romano Pontifici pro tempore referatur, qui pro sua prudentia iudicabit, an Congregationis resolutio sit approbanda, vel potius totius causae examen alteri Congregationi vel tribunali, prout eidem Pontifici videbitur, rursus com- mittendum. 1605. § 16. Demum volumus ac decernimus, easdem praesentes literas sem- per firmas, validas et efficaces existere et fore, suosque plenarios et integros eflectus sortiri et obtinere, ac ab illis, ad quos spectat, et pro tempore quando- cumque spectabit, in omnibus et per omnia plenissime et inviolabiliter observari. Sicque et non aliter per quoscumque Indices ordinarios et delegates, etiam cau- sarum Palatii apostolici Auditores, ac eosdem S. R. E. Cardinales, etiam de latere legatos, et s. Sedis Nuntios, aliosve quoslibet quacumque praeeminentia et potestate fungentes et functuros, sublata eis et eorum cuilibet quavis aliter iudicandi et interpretandi facultate et auctoritate, ubique iudicari et definiri debere, ac irritinn et inane, si secus super his a quoquam quavis auctoritate sci- enter vel ignoranter contigerit attentari. Non obstantibus praemissis ac con- stitutionibus et ordinationibus apostolicis, nee non quibusvis etiam iuramento, confirmatione apostolica vel quavis firmitate alia roboratis, statutis et consue- tudinibus, privilegiis quoque, indultis et Uteris apostolicis sub quibuscumque tenoribus verborum et formis, ac cum quibusvis etiam derogatoriarum deroga- toriis, aliisque efiicacioribus et insolitjs clausulis irritantibusque et aliis decretis etiam motu, scientia et potestatis plenitudine paribus in genere vel in specie, sen alias quomodolibet concessis, confirmatis et innovatis. Quibus omnibus et singulis etiam si pro illorum sufBcienti derogatione de illis eorumque totis teno- ribus specialis, specifica, expressa et individua, ac de verbo ad verbum, non au- tem per clausulas generales idem importantes, mentio, seuquaevis alia expressio habenda, aut aliqua alia exquisita forma in illis tradita observata eisdem prae- sentibus pro expressis et insertis habentes, illis alias in suo robore permansuris, ad praemissorum effectum hac vice dumtaxat expresse derogamus, caeterisque contrariis quibuscumque. 1606. § 17. Volumus autem, ut praesentes literae in valvis Ecclesiae latera- nensis et Principis Apostolorum, nee non Cancellariae apostolicae ac in acie 43 6 Appendix. Campi Florae de Urbe, ut moris est, publicentur et affigantur, sicque publicatae et affixae, omnes et singulos, quos illae concernunt, perinde arctent et afficiant, ac si unicuique eorum nominatim et personaliter intimatae fuissent; quodque earumdem praesentium transumptis seu exemplis, etiam impressis, manu alicu- ius Notarii public! subscriptis, et sigillo alicuius personae in dignitate ecclesias- tica constitutae munitis, eadem prorsus fides tarn in iudicio, quam extra illud ubique adhibeatur, quae ipsis praesentibus adhiberetur, si forent exhibitae vel oslensae. 1607. § 18. Nulli ergo omnino hominum'liceat banc paginam nostri decreti, statuti, constitutionis, prohibitionis, revocationis, annullaiionis, declarationis, mandati ac voluntatis infringere, vel ei ausu temerario contraire. Siquis autem hoc attentare praesumpserit, indignationem omnipotentis Dei ac bb. Petri et Pauli apostolorum eius se noverit incursurum. Datum Romae apud s. Mariam maiorem tertio nonas novembris anno Incarnationis dominicae millesimo sep- tingentesimo quadragesimo primo, Ponlificatus nostri anno secundo. D. CARD. PASSIONEUS. Visa de Curia N. Antonellus X. Sub-Datarius. Loco »J< Plumbi. , I. B. Eugenius. Anno a Nativitate D. N. lESU CHRISTI MDCCXLI. Indictione quarta, die vero 29 novembris, Pontificatus autem SSihi in Christo Patris et D. N. D. BENEDICT I divinaproz'identia PP. XIV anno secundo, supradicta Constitutio affixa et publicata fuit ad valvas Basilicae lateranensis et Principis Apostohrum, nee nan Cancellariae apostolicae. Curiae generalis in Monte Citatorio, in Acie Campi Florae, ac in aliis locis solitis et consuetis Urbis per me loannem Trifelli apost. Curs. Nicolaus Cappelli Mag. Curs. V. Instructio edita a s. Congregatione Concilli die 22 augusti 1840 pro coftfectione pro' cessus in causis matrimonialibus.^ 160S. Cum moneat Glossa {in cap. Jin. de frig, et malef.) in causis matrimo- nialibus omnem cautelam esse adhibendam propter periculum animarum, quodet docuit Sanchez {de tnatrim. lib. 7. disp. 107) et Card. Argenvilliers («« dissert, viatrimonii rclat. inter vota Constantini P. 5. vol. ult. n. 16) plura hinc a sacris Canonibus sancita sunt, ut tutum ac rectum iudicium efformari queat. Ad re- movendas vero fraudes, quae coniugum malitia vel collusione saepe oriebantur, s. m. Bened. XIV (in Constit. Dei miserationc) processum conficiendum esse praecepit sub poena nullitatis omnium actorum, ut probationibus undequaque ' This Instruction, as its heading indicates, lays down in detail the formalities of trials in matrimonial causes of nullity, and is of the greatest practical importance also in this country. Cf. supra, n. 1451, sq. Appendix. 437 accuratissime cumulatis in causis huiusmodi omnium gravissimis, in quibus agi- tur de sacrament! validitate vel nullitate, ac dedissolvendo vinculo matrimoniali, indices in proferendo iudicio tuti conquiescere possent. At quia saepe in hoc difficillimo processu acta minus recte et apte ad veritatem eruendam conficieban- tur, s. Congregatio saepius instructiones edidit, ac normam praescripsit quam Episcopi sequerentur. i6og. Cum itaque in huiusmodi causis non de iure alterutrius partis tantum, sed praecipue de sacramentali vinculo dissolvendo agatur, processus acta non ad instar aliorum iudiciorum, praesertim civilium, sed iuxta ss. Canones, citatam s. m. Bened. XIV Constitutionem, et praesentem instructtonem erunt effor- manda. Ea itaque non vernaculo sed latino sermone erunt conscribenda, ex- ceptis tamen excipiendis, nimirum articulis, interrogatoriis, responsionibus ad ea, et peritorum relationibus; praesertim vero decreta et sententia, quae iuxta priscos mores erit conficienda, latina lingua exarabuntur. Praeterea cum a sacro Cone. trid. (scss. 24. cap. 20. de ref. § adhaec), ac etiam as. m. Bened. XIV (in cit. Constit. Dei miseraiione § 4.) causarum matrimonialium cognitio quibusvis iudici- bus inferioribus, non obstante quovis privilegio ac praescripiione, fueritsublata, ac Episcoporum tantum examini et iurisdictioni reservata etiam prae Abbatibus vere Nullius, licet cardinalitia dlgnitate fulgentibus iuxta s. Congregationis resolutiones, hinc tutius erit, ut nedum sententia proferatur, sed etiam acta processus per Episcopum vel per ecclesiasticam personam specialiter ab eo dele- gandam conficiantur. 1610. Hisce praemissis, quoties aliquis ex coniugibus instantiam* in scriptis porriget super nullitate matrimonii, Episcopus ludicem, si velit, delegabit, dein- de ipse vel iudex delegatus cilari mandabit Defensorem matrimonii, quatenus in Curia episcopal! iam deputatus existat, sin minus, idoneum virum deputabit lis qualitatibus praestantem, quas superius memorata Constitut. s. m. Benedict! XIV requirit, eumque citari mandabit. Defensoris matrimonii erit praefixa die accedere ad praestandum iuramentum, se munus suum diligenter et incorrupte expleturum, et omnia voce ac scriptis deducturum, quae ad validitatem matrimo- nii sustinendam conferre poterunt. Praeterea hie Defensor matrimonii citandus erit ad quaelibet acta, ne vitio nullitatis ipsa tabescaiit} Ipsi, qui pro sacra- menti validitate stat, semper et quandocumque acta processus, etsi nondum publicati, erunt communicanda, semper et quandocumque eius scripta erunt re- cipienda, ac novi termini eo flagitante erunt prorogandi, ut ea perficiat et exhibeat. 161 1. Praefinita die in citatione comparebit instans pro nullitate, et tunc Defensor matrimonii tradet interrogatoria clausa et obsignata Cancellario seu Notario, aperienda, illo postulante, ex ludicis decreto in actu examinis, super quibus interrogandus erit coniux instans pro nullitate. lis ea addet etiam in actu examinis ex officio Index, quae ex responsionibus magis apta conspiciet ad veri- tatem eruendam sive in declarationem responsionum datarum, sive super novis circumstantiis resultantibus, quod erit intelligendum etiam de aliis interroga- toriis, super quibus ceteri omnes de re instruct! erunt examinandi. 1612. Cum itaque advenerit statuta dies pars nullitatem matrimonii allegans comparebit ut supra dictum, coram ludice, adstante Defensore matrimonii et » Ex cit. Const. § 7. 43 8 Appendix. Cancellario. ludex deferet parti examinandae iuramentum de veritate dicenda, et deinde reserabit interrogaioria exhibita, ut supra dictum est, a Defensore matrimonii, eaque singulatim proponet, audiet responsiones, easque dictabit Cancellario. 1613. Interim dum pars erit examinanda ipse Cancellarius exscribet in pro- cessu primam interrogationem, et deinceps singulas ex ordine, post quas scribet responsiones a ludice dictandas. Si quod interrogatorium, ut superius monitum est, addatur ex officio a ludice vel a Defensore matrimonii, Cancellarius inter- rumpet ordinera progressivura, et adnotabit interrogata ex officio; et scripta in- terrogatione et responsione, reassumet ordinem progressivum interrogationum exhibitarum a Defensore matrimonii. 1614. Si examen una sessione absolvi non poterit, Index illud suspendet, ac destinabit etiam diem et horam pro reassumptione et prosecutione iisdem modo ac forma facienda, ut supra dictum est. Absolute examine Cancellarius leget clara et intelligibili voce responsiones datas, facta examinato facultate vartandi et declarandi datas responsiones, prout ei libuerit. Tandem ludex deferat iura- mentum eidem coniugi, se vera dixisse, atque nunquam ante publicationem pro- cessus se evulgaturum sive interrogationes propositas, sive responsiones datas. Deinde ipse subscribet, et si fuerit illiteratus per signum Crufcis; dein Index et Defensor validitatis matrimonii apponet suam subscriptionem, et Cancellarius de actu rogabit. 1615. Poterit pars examini subiecta vel illico post examen, vel etiam dein- ceps antequam publicetur processus, si velit, articulos proponere, super quibus etiam, citato Defensore matrimonii, erit examinandus alter coniux, et quatenus etiam ab h'oc articuli proponantur, erit iterum citandus coniux, qui primus fuerat interrogatus, et adstante Defensore matrimonii, super articulis ab altero pro- positis audietur. 1616. Haec norma quae data fuit pro instantis examine servanda erit, con- grua congruis referendo, in quovis alio examine. 1617. Expleto examine illius coniugis qui actor fuit in promovenda nullitatis querela, sequitur examen alterius coniugis, quod erit conficiendum iisdem pror- Sus methodo ac lege, quae praescriptae fuerunt in praecedentibus paragraphis, ac sub iisdem interrogatoriis actori propositis, vel aliis additis, vel novis confec- tis prout Defensor matrimonii in Domino censuerit. 1618. Deinde procedendum erit ad examen septimae manus, hoc est septem propinquorum ex utroque latere ad formam text, (in cap. litteraevestrae, de frig, et male/.). Ut id facilius exequi Index valeat, Defensor matrimonii citabit par- tem actricem, ut indicet septem sibi sanguine vel affinitate coniunctos, si fieri possit, sin minus septem vicinos bonae famae. Singuli, audita prius lectura examinis, seu confessionis coniugis cos inducentis, erunt interrogandi, utrum perspectam habeant religionem et honestatem illius coniugis, ut propterea sibi verosimile sit, ac credant eum vera dixisse. Similiter instante Defensore matri- monii citandus erit alter coniux, ut etiam ipse indicet septem propinquos vel affines, iisque deficientibus, septem vicinos bonae famae, qui ut supra dictum est deponant; seorsim erunt hi quatuordecim conflantes septimam manum examini subiiciendi, designatis diebus et horis, delato prius iuramento singulis. Defensor matrimonii interrogatoria clausa exhibebit, ut superius dictum est. Appendix. 439 1619. Liberum erit coniugibus testes bonae famae ac de re instructos inducere, qui omnes seorsim at methodo hactenus praescripta erunt examini subiiciendi. 1620. Si alios etiam Defensor matrimonii ex actis iam confectis deprehendet de re instructos, hos etiam citabit, ut examini subiiciantur. Si qui forsan absen- tes noscantur, qui commode ad civitatem accedere nequeant etiam ob distantiae sumptus, vel ad partis instantiam, vel, ea silente, ad instantiam Defensoris matrimonii erunt ab Episcopo illius dioecesis, in qua morantur, examinandi iuxta interrogatoria ab eodem Defensore conficienda, ac clausa et obsignata transmittenda, deputato ab eodem Episcopo altero idoneo viro, qui praestet requisitis in Bulla saepius laudata s. m. Bened. XIV praescriptis, quique expleat munus Defensoris validitatis matrimonii, et examini adsit. 1621. Omnes vero testes, congrua congruis referendo, rogandi erunt, prae- sertim quando initum fuerit matrimonium: utrum inter coniuges mutui amoris et benevolentiae signa intercesserint; quamdiu in eadem domo vel civitate cohabitaverint; utrum innotuerit, eos consum.mationi operam dedisse; an inde matrimonium consummatum censeretur; de causisconsummaiionem impeditivis; de conquestionibus, quando et cum quibus factis, et cur nolint amplius in matri- monio permanere. 1622. Si querela super impotentia versetur, interrogandi erunt Periti physici, quos coniuges consuluerunt. 1623. Praeterea quatenus querela super nullitate ex iis sit, ut solvi possit matrimonium, si coniuges illud non consummarunt, tunc procedendum erit ad inspectionem corporis coniugum seorsim sequenti methodo perficiendam, in- stante praesertim Defensore matrimonii. 1624. ludex praefiget terminum tam utrique coniugi, quam Defensori matri- monii ad exhibendas notulas Peritorum Medicorum et Chirurgorum confidentium et diffidentium pro utriusque coniugis inspectione, congrua congruis referendo. 1625. Exhibitis notulis a partibus, ludex eliget quinque Peritos, tres scilicet Medicos et duos Chirurgos ex his, in quibus partes consentiant, sin minus ex officio eos, qui tamen partibus non sint rationabiliter suspecii, deputabit; atque curabit, ut deputatio cadat super celebrioribus civitatis tum quoad scientiam turn quoad religionem et honestatem, atque his Peritis facultatem dabit recognos- cendi corpus viri, adhibitis honestis mediis ad explorandam ipsius potentiam, nee non facultatem, quatenus non conveniant in prima inspectione, iterum accedendi. Atque in eodem decreto diem, horam et locum destinabit, in quibus Periti acce- dent, ut inspectionem perficiant. 1626. Designata die et hora, ad locum accedent ludex, Defensor matrimonii, Cancellarius ac Periti. Singuli ex Peritis ac seorsim corpus viri inspicient ea qua fieri poterit decentia, et factis experimentis, quae iuxta artem, non tamen illicitis, opportuna iudicabunt, singuli scriptam emiitent relationem. 1627. In inspectione et relatione haec praecipue investiganda et referenda erunt. 1628. An adsint signa physice certa impotentiae deducta ex conformatione partium, aut ex aliquo vitio quod apparere poterit. An adsint signa, quae mor- alem certitudinem inducant impotentiae, et quatenus existant, quae sit huius impotentiae causa, utrum sit impotentia perpetua insanabilis ac praecedens ma- trimonium, an signa impotentiae sint dubia vel aequivoca. 440 Appendix. 1629. Peracta relatione a singulis seorsim, Defensor matrimonii exhibebit interrogatoria clausa, sigillata, super quibus fieri debet examen Peritorum, sibi- que reservabit ius addendi alia interrogatoria, ac iterum eaad examen revocandi. Si examen singulorum Peritorum eadem die perfici nequiverit, iudex aliam diem designabit, ut illud prosequatur. Uterque ex Peritis tum ante examen iuramen- tum praestabit de veritate dicenda, tum post examen iuramento dicta confirma- bit, sese propria manu subscribens, Iudex, Defensor validitatis matrimonii et Cancellarius se subscribent, qui actum rogabit. 1630. Procedendum etiam erit ad inspectionem corporis mulieris. Iudex, ut supra dictum est de Peritis, tres saltem Obstetrices deputabit, quae a duobus saltem Peritis uno Medico, et altero Chirurgo, ut supra seligendis, sedulo erunt instruendae de recognoscendo visu et tactu in muliebrium inspectione. Statuta autem huius inspectionis die mulier erit traducenda ad domum honestae Matro- nae pariter a ludice deputandae pro infrascripta praestanda personali adsistentia, atque adstantibus semper tribus Obstetricibus et Matrona, immergenda erit in balneo aquae tepentis a Peritis prius recognoscendo, quod sit aquae purae, quo in balneo per spalium saltem trium quadrantium horae uniuspermanere debebit; quo tempore transacto, adstantibus semper et praesenlibus Matrona et Obstetri- cibus, statim, ne uUum spatium aut momentum temporis mulieri detur, quo ad arctandum vas uUo medicamento aut aliqua fraude uti queat, ad ipsius corporis inspectionem a singulis seorsim deveniendum erit, adstante semper et praesente Matrona; qua in re prospiciendum etiam, ut haec recognitio fiat tempore tan- tum diurno et in cubiculo luminoso, ut ex inspectione huiusmodi utrum mulier virgo sit, an violata et corrupta, adhibitis artis regulis, exactius deprehendatur. 1631. Iudex, Defensor matrimonii et Cancellarius cum Peritis, ut supra ad domum Matronae accedent. Peracta hinc recognitione, seorsim singulae Obste- trices referent de virginitatis aut corruptionis indiciis ab inspectione resultanti- bus, an certa et qualia supersint signa et argumenta intemerati aut corrupti claustri virginalis, et an ulla fraus ad virginitatem simulandam adhiberi potuerit. Deinde super his magis praecise deponent in responsionibus ad interrogatoria, quae clausa et obsignata exhibebit Defensor validitatis matrimonii. Deinde for- mali examini erunt subiiciendi Periti, quorum iudicium erit exquirendum super relatis et depositis ab Obstetricibus. Tandem examen subire debebit quoque Matrona quoad praestitam toto balnei et recognitionis tempore adsistentiam, servatis quoad examen iis omnibus, quae superius dicta sunt, congrua tamen congruis referendo. 1632. Quatenus Defensori matrimonii nulla alia probatioexquirendavideatur, nuUamque putet aliam Iudex prae sua diligentia assumendam, finis imponetur probationum collectioni et publicabitur processus, edito super hoc decreto a ludice, factisque subscriptionibus ab eo, a Defensore matrimonii et a Cancel- lario. Haec habenda methodus. Quae in actis continentur nemini, nee ipsis quidem coniugibus eorumque defensoribus erunt communicanda ante processus publicationem, uno excepto Defensore matrimonii, cui libera semper et quando- cumque erit actorum inspectio et examen. 1633. Locus deinde erit defensionibus. Liberum etiam erit Defensori matri- monii post processus publicationem novas probationes exquirere, cum agat fa- vore sacramenti, et numquam bina sententia nuUitatis conformis transeat in rem Appendix. 441 iudicatam, ac reassumi caussa possit etiam post initas novas nuptias a pnrtibus iuxta Constitut. saepius citatam Dei miscrationc. 1634. Omnibus absolutis, et cum nil amplius deducendum censuerit Defensor matrimonii, sententiam proferet Episcopus. 1635. Si hac matrimonii nullitas decreta fuerit, debebit Defensor matrimonii appellare iuxta citatam Constitutionem, nee poterunt coniuges ad alia vota transire nisi post obtentam alteram sententiam conformem super nuUitate, sub poenis contra polygamos constitutis in citata Constitutione Dei miseratione. . Deinde transmittenda erunt acta ab Episcopo ad ludicem, ad quem provocatum fuit, in copia authentica, soluta per partem diligentiorem competenti mercede Cancellario VI. Instructio sttpremae Congregationis S. 0. seqtienda in conficiendo processu stipef viri impotentia, et non secuta matrimonii consummatione , accedente summi Pon- tificis dispensatione ab accurata observantia praescriptionum Bullae Benedicti XIV " Dei miseratione" servata tamen in substantialibus. 1636. ludex ad hoc deputatus prae oculis habeat quod examina quaecumque ilia erunt, fieri debent sub iuramenti fide, et Cancellarius Curiae episcopalis vel altera persona deleganda, interrogationes, responsa et quaelibet acta scripto tradet, facta prius annotatione mensis, diei, anni, loci et personae iudicis coram quo conficiuntur acta, nee non cuiuslibet testis examinandi. 1637. Testes singillatim audiantur, et in fine examinis se subscribant proprio nomine, vel cum signo crucis quatenus sint illiterati. 1638. Primus ille coniux audiatur qui Actor est in causa. Interrogationes Iudicis arbitrio, prudentiae et sagacitati relinquuntur, attamen pro eius com- moditate sequentes traduntur, quibus alterae addantur prout melius in Domino iudicaverit ad factorum veritatem magis magisque eruendam, nimirum: 1639. A quanto tempore sese cognoverint sponsi ante matrimonium; an pa- rentum consensu, sponte et mutua voluntate illud inierint; an in sequenti nocte in eadem domo, eodemque cubiculo et toro cubaverint, officiisque coniugalibus ultro libenterque operam dederint; an matrimonium consummaverint; an ipse examinatus cognoscat vel suspicetur causas propter quas consummare nequive- rint, licet iteratis vicibus etiam in sequentibus noctibus ausi fuerint; an id con- tigerit ob nimiam angustiam cunni mulieris, vel ob immodicam sui penis crassi- tudinem, aut propter debilitatem ita ut nulla vel parvi momenti fuerit erectio; an, quae et quanto tempore adhibita fuerint medicamenta, et quinam fuerint ef- fectus; quamdiu simul vixerint et condormierint; quis primus alterum coniugem deseruerit, et an etiam aliae causae accesserint; an et quibus parentibus, amicis vel vicinis secreto manifestaverint quod matrimonium non fuerit consumma- tum, eosque singillatim nominet. 1640. Haec vel similia etiam ab altero coniuge requirantur, ut an inter se apprime conveniant dignoscatur. 44 2 Appendix. 1641. Deinde testes, qui ab ipsis coniugibus fuerint recensiti, seorsim exam- ini subiiciantur. Prius vero eorumdem parentes audiantur, uti praesumptive magis informati; postea vero famuli et viciniores. Si quis illorum obieril, vel longinquas regiones petierit, in actis innuendum erit. Inlerrogationes autem scquentes proponuntur, sed immutandae pro rerum adiunctis. 1642. An cognoscat coniuges de quibus sermo; an sciat utrum libenter mutu- oque affectu sese copulaverint, condormierint, et matrimonium consummaverint; an sit instiuctus quibus de causis consummare nequiverint, et an, et quidadillas amovendas experti fuerint; utrum, et quae conquestio inter ipsosextiterit; quae- nam sit fama tam apud se, quam apud alios de hac praetensa non consumma- tione. 1643. Singulorum testium absolute examine, duo saltern ex celebrioribus civi- tatis Physici medicinam et chirurgiam callentes seligantur corpus viri inspecturi super eius potentia ad coeundum cum muliere maxime virgine, nee ille Physi- cus praetereundus qui forsan anteafuerit adhibitus ad viri incommoda medenda. Animadvertendum autem ut ?iiediis utantur licitis et honestis, et perscrutandum praecipue utrum illius virilia sint iuxta naturae leges accurate conformata; nimi- rum an penis naturalem habeat dimensionem, promptamque erectionem ad co- eundum necessario duraturam; an aliquo morbo fuerit affectus, a quanto tem- pore, et cuiusnam characteris; an fibrae compactae et consistentes, seu potius flaccidae, lassaeque sint; an testes sani naturalisque magnitudinis, et utrum ali- quo vitio laboraverint, vel adhuc laborent; quo in casu morbi characterem et causas investigabunt; an vetus vel recens, naturalis vel acquisitus, et an curabi- lis nee ne absque salutis periculo. 1644. Quibus omnibus diligenter inspectis, singula sub iuramento scripto tradent, et quid ipsi sentiant de viri impotentia an acquisita vel ingenita, abso- luta vel relativa tantum, ingenue fateantur, nullaque relicta ambigendi ratione. 1645. Corpus insuper mulieris, sed maxime illius genitalia membra a duabus saltern Obstetricibus in arte et praxi peritioribus ac bonis moribus imbutis inspi- ciantur, adhibito prius mulieris balneo si necessario praemittendum Physici et ipsae iudicaverint. Accurate observabunt signa integritatem mulieris constitu- entia, nimirum conformationem partium, iuncturam, duritiem, rugositatem et colorem; an hymen sit integer, vel confractus in totum vel in parte; hoc in casu an et qua naturali causa, seu potius e congressu extranei corporis contigerit; an myrtiformes carunculae inveniantur, earumque magnitudinem, numerum, et con- formationem, aliaque signa ab arte tradita integritatem aut corruptionem muli- eris constituentia sedulo inspiciant. Deinde unaquaeque seorsim singula quae repererit sub sacramento ludici, et a Canceilario scripto fideliter tradenda, dis- tincte exponat, et quid ipsae sentiant de illius integritate declarent. 1646. Earumdem depositiones praedictis Physicis examinandae tradantur, ut decernant num mulier adhuc integra habenda sit, atque matrimonium non con- summatum iudicandum. 1647. Verum si aliquod dubium adhuc explicandum supersit, opportunis ab ipsis Physicis concinnatis interrogationibus, iterum Obstetrices examinentur, et si nihilominus anceps Peritorum iudicium permanserit, corpus mulieris ab ipsis inspiciatur, adstante vero Matrona antiquae virtutis, nuUique exceptioni obnoxia, Appendix. 443 et ab Ordinario designanda; expleta inspectione iudlcium dabunt Physici singu- lasque proferent rationes quibus ipsorum sententia innititur. 1648. Praetereunda tandem non erit investigatio super qualitate testium au- dito eorumdem parocho, vel alia proba et apprime instructa persona utrum ipsi sint bonis moribus imbuti, ac plenam mereantur fidem illorum depositiones. 1649. Omnibus superius recensitis diligenter ab Ordinario coUectis, ilia ad s. Congregationem mittere festinabit decretorio eius iudicio subiicienda. VII. Testimony of Singular Witnesses in Causes of Solicitation. [Supra, n. 833, p. 88; n. 851, p. 98.] 1650. We say above/ that in criminal causes two concordant and unexception- able witnesses are always required for conviction; that singular witnesses, no matter how numerous, do not constitute full proof in such causes.^ We here add, that when there is question of proving \]n^ cx\vc\& oi sollicitatio , singular witnesses are indeed sufficient to prove the guilt, provided, however, other presumptions and signs of guilt corroborate the testimony of such witnesses. Thus the Con- gregation of the Holy Office, in its Instruction of 1867, says: " Sollicitationis crimen ut plurimum secreto perpetratur; hinc privilegium est, ut in causis, quae contra hoc crimen instituuntur, ad plenam probationem faciendara attestationes etiam singulares admittantur. At in memoratis SS. Pontificum constitutionibus praescribitur, ne cum testibus singularibus procedatur, nisi praestimptiones, indi- cia et alia adminicula concurrant. Pondus igitur cujusque denuntiationis quali- tates et circumstantiae serio accurateque perpendendae sunt, et antequam contra denuntiatum procedatur perspectum exploratumque judici esse debet, quod muli- eres vel vini dcnuntiantes sint boni nominis neque ad accusandum vel inimicitia vel alio humano affectu adducantur. Oportet enim, ut testes enim, ut testes hujusmodi singulares ab omnibus privatis affectionibus sint immunes, ut ipsis integra fides haberi possit." '^ 1651. It will be seen from this quotation that the testimony of singular wit- nesses is not only not sufficient of itself in causes of solicitation,* but that, moreover, the greatest care should be taken to find out whether they are above all suspicion. Hence the Sacred Congregation ordains that when a denunciation has been received, the ecclesiastical superior shall not proceed forthwith against the accused, but shall first inquire carefully whether the person who makes the denunciation is worthy of belief. Hence the parish priest and other reliable persons should be examined in regard to the character of the denouncer. Nay, the above Instruction says: " Ea est hujus supremae Inquisitionis consuetude, ut post unam alteramve denuntiationem rescribatur, quod dehuntiatus observetiir, ita videlicet super delato crimine suspectus habeatur, ut quum primum per 1 Supra, n. 833. ^ Supra, n. 851. ' Instr. cit., § 10, apud Konings, vol. i. p. Ixiii. * Cf. Reiff. 1. 2, t. 20, n. 312. 444 Appendix. novas denuntiationes res explorata erlt, in judicium vocandus sit. Ut plurimum nonnisi a tertia denuntiatione procedi solet." ' All this shows plainly enough with what diffidence and circumspection the testimony of singular witnesses should be admitted even in causes of solicitation. VIII. Is the administering of an Oath by the Ecclesiastical Judge or Superior, as such, to Witnesses or other parties, forbidden by the Civil Law in England, Ireland, and the United States ? [Supra, n. 1344, 1345, pp. 344, 345; n. 1426, pp. 379, 380.] 1652. I. Illegality of these oaths in England and Ireland. — It seems certain, as we have already shown, ^ that the swearing of witnesses or other parties by the ecclesiastical judge or superior, as such, is positively forbidden by law in England and Ireland. Here is the law: "Whereas a practice has prevailed of administering and receiving oaths and affidavits voluntarily taken and made in matters not the subject of any juridical inquiry, nor in anywise pending or at issue before the justice of the peace or other person by whom such oaths or affidavits have been administered or received; and whereas doubts have arisen whether or not such proceeding is illegal; for the more effectual suppression of such practice and removing such doubts, be it enacted, That from and after the commencement of this act it shall not be lawful for any justice of the peace or other person to administer, or cause or allow to be administered, or to receive or cause or allow to be received, any oath, affidavit, or solemn affirma- tion touching any matter or thing whereof such justice or other person hath not jurisdiction or cognizance by some statute in force at the time being." ^ 1653. Mr. Justice Coleridge, in 1843, in Regina v. Nott, decided that the administering of an oath in an ecclesiastical judicial inquiry was contrary to the above statute, and consequently illegal.'* It should be, however, observed that the statute just quoted does not make the administering of the oath contrary to its provisions a penal offence, but simply declares it unlawful, without decree- ing any penalty for its violation. 1654. II. The swearing of witnessess or other persons in the ecclesiastical courts of the United States. — In the United States this administering of the oath is not illegal, as we have already shown.* At our request, Mr. E. Stevenson, the public prosecutor of Passaic Co., New Jersey, made a thorough inquiry into the question. He informs us that he has looked up all the available laws and authorities, on the matter, and ' that he cannot find any prohibition whatever against administering the oaths in question; that it is the universal opinion of lawyers and competent judges that no such prohibition exists with us; that it is the general practice of Protestant denominations, with us, to administer oaths in their ecclesiastical courts. 1 Instr. cit., § 11. * Supra, n. 1345. » 5 and 6 Will. 4, c. 63, s. 13. * Regina v. Nott, i Carr and Marsh. 288 (41 E. C. L.). * Supra, n. 1344, 1426, Appendix, 445 IX. Force of the Confession or Statement of the Married Couple, concerning Clandestine Marriages, especially with us. [Supra, n. 1486-1491.] 1655. We say above (n. i486.) that the confession of either of the married couple, or even of both, as against the validity of a marriage contracted by them, has of itself no force. Here then it is proper to ask : Is this rule applicable also to clandestine marriages contracted in so secret a manner as not to be suscep- tible of proof? Before answering, we remark that we speak of clandestine marriages as contracted in those places where the Tridentine decree Tametsi does not obtain. For where it is in force clandestine marriages are null and void, and consequently there can be no question of proving the validity of such marriages. The question therefore has reference to clandestine marriages as contracted in the greater part of the United States, where the Tridentine decree is not promulgated. We observe in passing that as these marriages are valid if contracted solely by the consent of the couple, without the assistance of a priest or of witnesses, it must often become very diflicuit to prove them. We now answer: The above rule is not applicable in the case of clandestine- marriages under consideration. Hence, if both or even one of the couple alleged to have been clandestinely married denies the marriage, they are not to be compelled to cohabit and regard each other as married; nay, they should be separated, and their alleged marriage regarded as no marriage. But if both affirm the existence of their marriage, their confession or statement constitutes full proof of the marriage, and such a marriage must be accepted and approved by the Church, as though it had been contracted from the beginning in facie ecclesice? ' ' Cap. I, 2, de Cland. desp. (iv. 3) ; Schmalzg., 1. 4, t. 3, n. 249. CONTENTS. BOOK II.— ON ECCLESIASTICAL JUDICATURE, OR OF JUDICIAL PROCEEDINGS, CIVIL AND CRIMINAL, IN ECCLESI- ASTICAL COURTS, ALSO IN THE UNITED STATES. PART I. Of Ecclesiastical Judicial Proceedings, Civil and Criminal, in general, 7 CHAPTER I. What is meant by Judicial Procedures or Trials, and how many kinds are there? — What does the Law of Nature require in all Judicial Pro- ceedings ? — What does the Positive Law pre- scribe ? 7 CHAPTER II. Has the Church a Judiciary Power in the strict sense? — What is its Extent? .... 14 CHAPTER III. Of the various Persons who usually take part in Ecclesiastical Trials, also in the United States, 19 Art. I. Of the Judge — Commissions of Investigation in the United States, ...... 19 Art. II. Of the Plaintiff and the Defendant, also before Commissions of Investigation in the United States, ......... 39 Art. III. Of Procurators or Agents, ..... 45 448 Contents. rAPF Art. IV. Of Advocates, also before our Commissions of Investigation, . . . . . 51 Art. V. Of Auditors, Assessors, Promoters, Secretaries, and Messengers of Ecclesiastical Courts, . . 60 CHAPTER IV. Of the competent Ecclesiastical Tribunal — ZV J^oro Competente Ecdesiastico — Forum of Domi- cile, of Contract, of Location of Object, of Crime, of Delegation, of Prorogation, of Com- promise, etc., ....... 61 CHAPTER V. Of Judicial Proofs, . 77 Art. I. Judicial Proofs, in general — Nature, Division, and Force of these Proofs, ..... 77 Art. II. Judicial proofs in particular — Of Confession, Ju- dicial and Extrajudicial, and its Effects, , . 81 Art. III. Of Witnesses — Their Qualifications, Number, Mode of Examination — Confrontation — Oath — Publication of their Depositions — Witnesses before Commissions of Investigation in the United States, 83 Art. IV. Of Instruments — Their Force — Mode of Produc- tion during the Trial, ...... 105 Art. V. Of Presumptions — Their Nature, Division, Force, and Effects — Are mere Presumptions sufficient for Conviction in Criminal Causes? . . . iii Art. VI. The Oath as a Proof 118 PART II. Of Ecclesiastical Judicial Procedure, in particular, 123 CHAPTER I. Organization of the Bishop's Court for the Exer- cise of Judicial Power, . . . . .123 Art. I. Of the Judge — The Bishop is the Ordinary Judge in the first instance, 123 Contents. 449 PAGE Art. II, Auditors of the Bishop's Court — Resemblance between them and our Commissions of Investi- gation, 125 Art. III. Assessors of the Bishop's Court — Are Commis- sions of Investigation in the United States Assessors of the Bishop's Court ? In w^hat sense? Can they be challenged ? . . .126 Art. IV. Collegiate Form of the Bishop's Court — The Bish- op's Court in the United States, as established by the S. C. de P. F., July 20, 1878, ... 128 Art. V. Diocesan Promoter and Advocate, . . . 131 Art. VI. Diocesan Promoter or Prosecutor in the United States, under the Instruction of the Propa- ganda of July 20, 1878, ...... 134 Art. VII. Notaries and Chancellors — Secretaries of Com- missions of Investigation in the United States, 135 Art. VIII. Judicial Messengers (Constables, Sheriffs, etc., of Secular Courts) — Citation sent by Registered Mail in the United States, ..... 139 \ CHAPTER II. Of the Archbishop's Court of Justice — Its Organi- zation in the United States, according to the Instruction of the S. C. de P. F., of July 20, 1878, 141 CHAPTER III. Of the Ordinary (Solemn or Formal) Canonical Trial in Criminal Causes, ..... 144 Sec. I. Various Modes of beginning Canonical Criminal Trials, ......... 144 Art. I. Mode of Procedure by way of Accusation — The PoenaTalionis — This Procedure now Obsolete, . 144 Art. II. Mode of beginning Criminal Trials by Way of Denunciation — Is Common Fame a necessary Condition of Judicial Denunciation — Character of Common Fame — Effects of Judicial Denun- ciation upon the Judge, the Person denouncing, and the Person denounced, .... 147 450 Contejits. PAGE Art. III. Trial by Way of Inquiry — General, Special, and Mixed Inquiry — Necessity of previous Common Fame — Establishment of the Corpus Delicti — Publicity excluded from Ecclesiastical Trials, 153 Art. IV. Mode of Procedure by Way of Exception — De- fendant's Right to make Exceptions — Criminal and Civil Exceptions — Trial of Exceptions, . 166 Sec. II. The different Stages and Formalities of Ordinary (or Solemn) Criminal Trials in Ecclesiastical Courts — Formalities of Ecclesiastical Trials in the United States, ...... 170 Art. I. The Stages of Formal Criminal Trials, from the Beginning or Opening of the Case to the Plea exclusive — The Principles here laid down ap- plied to Trials before our Commissions of In- vestigation, ........ 171 § I, On tendering to the Ecclesiastical Judge the written Criminal Charge, also in the United States — -De Libelli Oblatione — Form, Necessity, Amendments of the Bill of Complartit, . , 172 § 2. Visitation of the Corpus Delicti, . . . .176 § 3. Citation of the Accused, as made also in the Unit- ed States, according to the Instruction of the S. C. de P. F., July 20, 1878— Simple and Per- emptory, Public and Private Citation — Neces- sity — Tenor — Execution — Effects, . . .178 § 4. Contumacy, also in the United States — True and Presumptive Contumacy — Legitimate Excuses — Mode of Procedure, also with us — Penalties, 188 § 5. Exceptions — Dilatory and Peremptory — How made and proved, also before our Commissions of Investigation, . . . . . . .196 § 6. Exceptions against the Judge, and Members of Commissions of Investigation in the United States — Mode of Procedure — Arbitrators, . 202 § 7. Of Ecclesiastical Counter-Suits or Charges, also in the United States — De Mutuis Feiitionibus, . 213 Art. II. Various Stages of Regular (or Ordinary) Canoni- cal Criminal Trials, from the Litis Contestatio to the Final Sentence exclusive, . . . .217 Contents. 45 1 PAGE § I. Of the Plea or Contestation of the Cause — Neces- sity of an informal Contestation in Proceedings before Commissions of Investigation in the United States. 217 § 2, Positions and Articles, also in the United States, 221 § 3. Oaths administered in Ecclesiastical Trials to the Litigants themselves — y^uramenhcm Malitiae, Caluniniae, Veritatis, . . . . . .222 § 4. Of Delays which occur during the Trial, also in the United States — Legal and Conventional, Citatory and Deliberative, Recusative and Pro- bative Delays — Judicial Holidays or Feriae, . 224 § 5. Order to be observed by the Ecclesiastical Judge when, in the hearing of the same Cause, several Questions come up for Decision — De Ordine Cognitionum — The Complaint of Spoliation has the Right of Precedence, also with us, . . 232 § 6. Examination of the Accused, also in the United States — Is the Accused bound to confess his Guilt when he is interrogated by the Judge, or by our Commissions of Investigation? . . 240 § 7. Manner of submitting the Proofs in Ecclesiasti- cal Courts, also in the United States — The Trial Proper — Mode of conducting the Prose- cution and the Defence — Trial before Commis- sions of Investigation in the United States, . 244 Art. III. Proceedings in Formal Canonical Trials, and also before our Commissions of Investigation, in Criminal Causes, from the Final Sentence to the End, 263 § I, Nature and Division of Judicial Sentences — In- terlocutory Sentences, also of Commissions of Investigation in the United States, . . . 263 § 2. The Final Sentence — Absolutory, Condemnatory, Declaratory — Conditions required on the Part of the Judge, and of the Sentence itself, also in the United States, . . . . . . 270 § 3. Chief Effects of the Final Sentence on the Judge, the Litigants, the Cause decided — Res judicata, 277 452 Contents. O T^ PAGE § 4. Execution of the Sentence — How and by whom executed, also with us, 280 § 5. Expenses of Ecclesiastical Trials — By whom to be paid, also in the United States, . . . 284 Art. IV. Of Appeals— Z>,? Appellationibus, . . . .286 § I. Mode of Procedure in Appeals — First Stage of Appeals — ApostoU — Second Stage — The Appeal brought before the Judge ad guem — Third . Stage — Trial of the Appeal — Appeals in the United States, according to the Instruction of the S. C. de P. F., July 20, 1878, . . .286 § 2. Effects of Appeals, also in the United States — Devolutive and Suspensive Effects of Judicial and Extrajudicial Appeals — Remedy against Attentates, ........ 300 CHAPTER IV. Of Extraordinary Criminal Trials in Ecclesiasti- cal Courts, also in the United States, . . 305 Art. I. The Criminal Trial for Notorious Crimes, also with us, .... . . . . 305 Art. II. Summary Trials in Ecclesiastical Courts, . . 310 Art. III. Sentences ex informata cofiscietiiia, as in force also in the United States — No Trial required — What Penalties are imposable, and what Crimes pun- ishable ex inf. consc. — Duration and Lapse of these Sentences, ....... 315 Art. IV. Criminal Trial of Heretics — Special Formalities, 334 CHAPTER V. Ecclesiastical Civil Trials, .... 338 Art. I. Of the Ordinary Trial in Civil Causes of the Ec- clesiastical Forum — Formalities — Libellus — Ci- tation — Contumacy — Litis Contestatio — Excep- tions — Swearing of Witnesses in the United States, England, and Ireland — Civil Trials be- fore our Commissions of Investigation, . . 339 Art. II. Extraordinary and Summary Trial in Civil Contents. 453 PAGE Causes of the Ecclesiastical Forum, also in the United States, . . . ' . . . . 347 Art. III. Remedies against an Unjust Sentence in Civil Causes, ........ 349 § I. Of Appeals and the Complaint of Nullity in Civil Causes of the Ecclesiastical Forum, . . . 350 § 2. Of Supplication or Petition for a new hearing of the Cause — New hearing before the Roman Congregations, 353 § 3. {a) The referring of a Cause by an Inferior Judge to the Superior — De Relationibus — {b) Consulta- tions addressed by an Inferior Judge to his Su- perior for InfoVmation to guide him in deciding a Cause — Consultations addressed by Bishops to the Holy See, ....... 356 § 4. Of Reinstatement, as granted in Spiritual Causes, such as Ecclesiastical Offices, to Churches, etc., 358 CHAPTER VI. Ecclesiastical Civil Trials peculiar to Matrimonial Causes, also in the United States, . . . 368 Art. I. Which is the Competent Forum for Matrimonial Causes ? — Relation of Church and StaLe in This matter, especially in the United States, . . 369 Art. II. Organization or personnel of Ecclesiastical Courts for Matrimonial Causes, also in the United States — The Judge, Defender of Marriage, and Secretary, . . . . . . . .372 Art. III. Form of Trial to be followed at present, in Mat- rimonial Causes, in general — Can the Oath be administered, with us, to the Officials of the Courts, and to the Witnesses ? . . . 378 Art. IV. Form of Trial peculiar to Divorces a 7nensa et thoro — Causes authorizing such Divorces — Adultery — Apostasy and Heresy — Bodily Dan- ger — Incitement to Crime, .... 382 Art. V. Peculiar Form of Trial in Matrimonial Causes where there is question of Dissolving- a Mar- 454 Contents. PAGE riage, once contracted, absolutely or quoad vin- culum, . . . . . . . . . 389 § I. General Features of the Law as in Force at the Present Day — Defender of Marriage, also in. the United States — Synopsis of the Const. Z>ei Miseratione of Benedict XIV., .... 389 § 2. Various Stages of the Trial — Regulations of the celebrated Instruction of the S. C. C. of Au- gust 22, 1840, 395 § 3. Formalities to be observed in regard to the An- nulment of a Marriage which is ratum, but not yet consummatum, ...... 400 § 4. Judicial Proofs in Matrimonial Causes of Nullity — Confession or Statements of • the Married Couple — Instruments — Witnesses — Corporal Inspection by Experts, ..... 403 § 5. What Persons are qualified by the Law of the Church to act {a) as Plaintiffs, and {b) as Wit- nesses, in Matrimonial Causes, .... 409 APPENDIX. I. Instruction of the Sacred Congregation De Propaganda Fide, issued July 20, 1878, on the Mode of Procedure to be followed by the Bishops of the United States in taking cognizance of and deciding Criminal and Disciplinary Causes of Ecclesiastics (Latin text with English translation), 415 II. Answer of the Sacred Congregation De Propaganda Fide, concerning certain Questions, proposed by Bishops of the United States, in regard to the Mode of Procedure to be followed by the Bishops of the United States in hearing and deciding Criminal and Disciplinary Causes of Ecclesiastics (Latin text together with English translation), ....... 422 Contents. 455 III. PAGE The Canonical Trial adapted to the Wants of the Present Day — Instruction of the Sacred Congregation of Bishops and Regulars, authorizing Ordinaries of Countries not subject to the Propaganda to conduct Ecclesiastical Trials, without observing all the For- malities prescribed by the Sacred Canons, . . 424 IV. Constitution of Pope Benedict XIV., prescribing the Form of Trial to be observed in those Matrimonial Causes, where there is question of the Validity or Nullity of Marriages, 430 Instruction of the Sacred Congregation of Council, issued August 22, 1840, laying down in detail the Formalities of the Trial in Matrimonial Causes, .... 436 VI. Instruction of the Supreme Congregation of the Holy Office, concerning the Mode of Procedure where there is question of dissolving a Marriage on account of Impotency, 441 VII. Testimony of Singular Witnesses in Cases of Solicitation, 443 VIII. Is the administering of an Oath by the Ecclesiastical Superior, as such, to witnesses or other parties, for- bidden by the Civil Law in England, Ireland, and the United States ? 444 IX. Force of the Confession of the Married Couple, concern- ing Clandestine Marriages, especially in the United States, 445 RETURN LOAN PERIOD 1 HOME USE CIRCULATION DEPARTMENT 198 Main Stacks ALL BOOKS MAY BE RECALLED AFTER 7 DAYS. Renewls and Recharges may be made 4 days prior to the due date. Books may be Renewed by calling 642-3405. DUE AS STAMPED BELOW FORM NO. DD6 UNIVERSITY OF CALIFORNIA. BERKELEY BERKELEY CA 94720-6000