User:CanonLawJunkie/Procedural law (canon law)

In Catholic canon law, procedural law is the law that governs legal processes such as trials, annulments, and other tribunal actions.

Ordeals
Ordeals (Latin, judicium Dei, "the judgement of God") were a means of obtaining evidence by trials, through which, by the direct interposition of God, the guilt or innocence of an accused person was firmly established, in the event that the truth could not be proved by ordinary means. These trials owed their existence to the firm belief that an omniscient and just God would not permit an innocent person to be regarded as guilty and punished in consequence, but that He would intervene, by a miracle if necessary, to proclaim the truth. The ordeals were either imposed by the presiding judge, or chosen by the contesting parties themselves. It was expected that God, approving the act imposed or permitted by an authorized judge, would give a distinct manifestation of the truth to reveal the guilt or innocence of the accused. It was believed from these premises that an equitable judgment must surely result.

Ordeals are of two kinds: those undergone only by the accused, and those taken part in by both parties to the action. It was the common opinion that the decision of God was made known in the result of the test, either immediately or after a short time. Ordeals were resorted to when the contesting parties were unable to bring forward further evidence, for according to the ancient German law, the production of evidence was not arranged for by the court itself, but was left to the contestants.

Ordeals were known and practised by various peoples of antiquity; The Romans, however, with their highly developed procedural law of dispensing justice, did not employ this means of obtaining proof. Ordeals found their chief development among the Germanic peoples, in Germany itself as well as in those kingdoms which came into existence, after the migration of the nations, in the old Roman Provinces of Gaul, Italy, and Britain. They were an essential part of the judicial system of the Germanic peoples, were preserved and developed after the conversion of these peoples from Paganism to Christianity, became widespread and were in constant use.

The Christian missionaries did not in general combat this practice. They opposed only the duel, and endeavoured to minimize the barbarity attendant upon the practice of ordeals. By prayer and religious ceremonies, by the hearing of holy Mass and the reception of holy communion before the ordeal, the missionaries sought to give to it a distinctly religious character, including liturgical prayers and ceremonies. This attitude of the clergy in regard to ordeals may be explained if one takes into consideration the religious ideas of the times, as well as the close connection which existed between ordeals and the Germanic judicial system.

The principal means of testing the accuser as well as the accused in the Germanic judicial practice was the Oath of the Co-jurors. It being often difficult to find jurors who were properly qualified, perjury frequently resulted, and the oath could be rejected by the opposing party. In such cases, the ordeal was brought forward as a substitute in determining the truth, the guilt, or the innocence. This mode of procedure was tolerated by the Church in Germanic countries in the early Middle Ages. A thoroughgoing opposition to ordeals would have had little prospect of success. The only bishop to take measures against the practice of ordeals during the conversion to Christianity of the Germanic races was St. Avitus of Vienne (d. about 518). Later, Agobard of Lyons (d. 840) attacked the judicial duel and other ordeals in two writings ("Liber adversus legem Grundobadi and Liber contra iudicium Dei", in Migne, P.L., CIV, 125 sqq., 254 sqq.). On the other hand, shortly afterwards, Archbishop Hincmar of Reims, at the time of the matrimonial disagreement between King Lothair and Theutberga, declared himself to be of the opinion that ordeals were permissible, the support of which he must assuredly have brought forward noteworthy arguments. The universal opinion among the peoples of the Frankish kingdom favoured the authorization of ordeals, and the same may be said of Britain. In 809 in the Capitulary of Aachen, Charlemagne declared: "that all should believe in the ordeal without the shadow of a doubt". In the Byzantine Empire also, we encounter in the later Middle Ages the practice of ordeals, introduced from the countries of the West.

The ecclesiastical authorities of the Frankish and Anglo-Saxon kingdoms, as we have remarked above, were very broad-minded in their acceptation of the greater number of species of ordeals; several councils publishing regulations concerning them. Ordeals were practised in Britain, France, and Germany in connection with legal processes before civil as well as ecclesiastical tribunals up to and during the thirteenth and fourteenth centuries. From then on they were gradually discontinued.

The tribunals of Rome never made use of ordeals. The popes were always opposed to them and began, at an early date, to take measures for their suppression. It is true that in the beginning no general decree was published regarding them; however, in individual cases concerning ordeals brought to them, the popes always pronounced against the practice, and designated it as unlawful. This course was followed by Nicholas I when, in 867, he prohibited the duel by which King Lothair sought to decide his matrimonial dispute with Theutberga. The latter had previously, through one of her servants, submitted to the test of hot water to prove her innocence, and indeed with favourable results. Upon the inquiry of the Archbishop of Mainz as to whether or not the tests of the hot water and the glowing iron could lawfully be made use of in the case of parents who were accused of having smothered their sleeping child, Stephen V (885-891) forbade these ordeals (Decr. C. 20, C. II, qu. 5). Alexander II (1061-73) likewise condemned these tests, and Alexander III (1159-81) prohibited the bishop and the clergy of the Diocese of Upsala from countenancing a duel or other ordeal imposed by law, as such a practice was disapproved of by the Catholic Church. Before long definite condemnations were published by the popes, as for example, that of Celestine III (1191-98) regarding the duel. At the Council of the Lateran in 1215, Innocent III promulgated a general decree against ordeals, which prohibited anyone from receiving the blessing of the Church before submitting to the test of the hot water or to that of the glowing iron, and confirming the validity of the previous prohibition against the duel (Can. xviii; in Hefele, l.c., V, 687).

Various accounts in regard to the co-operation of the popes in the practice of ordeals in Frankish times which are contained in apocryphal writings have no historic value. From the twelfth century, a thorough and widespread opposition to ordeals, as a result of the stand taken by the popes, began to manifest itself generally, and whereas, at an earlier date, no one was found to support Agobard of Lyons in his opposition to these tests, which was without result, the writings of Peter Cantor (d. 1197) against the proceedings of the civil courts with regard to ordeals (in his "Verbum abbreviatum", Migne, P.L., CCV, 226 sqq.) had a far greater success. In "Tristan", Gottfried of Strasburg sets forth his disapproval of ordeals.

As a result of the General Council of 1215, several synods of the thirteenth and fourteenth centuries published prohibitions in this connection. A synod held at Valladolid in 1322 declares in Can. xxvii: "The tests of fire and water are forbidden; whoever participates in them is ipso facto excommunicated" (Hefele, "Konziliengesch.", VI, 616). The Emperor Frederick II also prohibited the duel and other ordeals in the Constitution of Melfi, 1231 (Michael, "Geschichte des deutshen Volkes", I, 318). Nevertheless, there are to be found in Germanic code books as late as the thirteenth century, regulations for their use. However, a clearer recognition of the false ground for belief in ordeals, a more highly-developed judicial system, the fact that the innocent must be victims of the ordeal, the prohibitions of the popes and the synods, the refusal of the ecclesiastical authorities to cooperate in the carrying out of the sentence — all these causes worked together to bring about, during the course of the fourteenth and fifteenth centuries, the gradual discontinuance of the practice. The ancient test of the cold water was resuscitated in the sixteenth and seventeenth centuries in the ducking of so-called witches, consequent upon the trials for witchcraft.

1983 Code of Canon Law
The procedural law of the 1983 Code of Canon Law "bears an amazingly strong likeness" to the Decretals of Gregory IX, its Medieval ancestor. The procedural law of the 1983 Code consists of 353 canons (cc. 1400-1752) and is divided into five parts:
 * I. Trials in General
 * II. The Contentious Trial
 * III. Certain Special Procedures
 * IV. Penal Procedure
 * V. On the Manner of Procedure in Administrative Recourse and the Removal and Transfer of Pastors

Pars statica
In the canon law of the Catholic Church, a judge (judex ecclesiasticus) is an ecclesiastical person who possesses ecclesiastical jurisdiction either in general or in the strict sense. The official body appointed by the qualified ecclesiastical authority for the administration of justice is called a court (judicium ecclesiasticum, tribunal, auditorium) Every such court consists at the least of two sworn officials, the judge who gives the decision, and the clerk of the court (scriba, secretarius, scriniarius, notarius, cancellarius), whose duty is to keep a record of the proceedings and the decision (c. xi, X, De probat., II, xix). As a rule, however, an ecclesiastical court forms a collegiate tribunal, the members of which either join with the presiding officer in giving the decision as judges (judices) or merely advise with him as councillors (auditores, assessores, consultores, consiliarii) (cc. xvi, xxi, xxii, xxiii, X, De off. et pot. jud. deleg., I, xxix) Connected with the courts are advocates, procurators, syndics, defenders, promoters, conservators, apparitors, messengers, etc The procurators and advocates conduct the case as the representatives or defenders of the parties to the suit (X, De postul., I, xxxvii; X, De procurat., I, xxxviii) The syndic is the counsel of a juridical person, a collegiate body or a chapter (X, De syndic., I, xxxix) The chief duty of the conservators is to represent the rights of the personae miserabiles, i.e. members of orders, the poor, widows, orphans (c. xv, in VIto, De off. et pot. jud. deleg., I, xiv) The fiscal promoter (promotor fiscalis) is appointed by the ecclesiastical authorities to watch over ecclesiastical discipline (Instructio Congr. Ep. et Reg., 11 June, 1880, art. xiii), consequently in penal cases he appears as public prosecutor A defensor matrimonii, or defender of the matrimonial tie, assists in suits concerning the invalidity of a marriage (Benedict XIV, "Dei miseratione", 3 November, 1741).

Curator & tutor
(Lat. curare).

A person legally appointed to administer the property of another, who is unable to undertake its management himself, owing to age or physical incompetence, bodily or mental. Curators are often confounded with tutors, but they differ in many respects. Tutors are appointed principally for the guardianship of persons, and only secondarily for the care of property; while curators are deputed mainly and sometimes solely for temporal concerns and only incidentally as guardians of persons. Besides, a tutor is appointed for minors, while a curator may have charge of incompetent persons of any age. Finally, a tutor cannot be commissioned for a particular or determined duty, though a curator may receive such an appointment. When the ward of a tutor has reached his majority, the tutor may become curator until the ward is twenty-five years of age, but he cannot be compelled to undertake such a charge. Curators, according to law, are to be constituted for those who are mentally weak, for prodigals, and those addicted inordinately to gambling. The administration of property cannot, however, be taken from a person merely because he lives luxuriously. Curators may also be appointed for captives, for the absent, and the deaf and dumb. A husband may not be constituted curator for his wife. Before the curator enters upon the administration of property, he is obliged to give proper bond for his fidelity. Whatever salary he receives must be determined by a judge. If he did not demand a salary at the beginning of his administration, but later requests one, the judge is to fix the amount of such salary only for the future, not for the past. The obligation of a curator to render an account of his administration after the time of wardship has passed constitutes an ecclesiastical impediment to entrance into the religious state until such obligation has been duly discharged. As regards the administration of property, curators are obliged to take such care of it as would a diligent parent. They are therefore to see that the rents are collected, that the yearly income be not lessened, that less useful goods be sold, and that money be not allowed to lie idle. In case the property of the ward suffer by the administration of the curator, the latter is obliged in conscience to make restitution, if the deterioration was caused by culpable negligence on his part.

FERRARIS, ''Bibl. Canon., s. v. Tutela (Rome, 1891), VII; ANDRÉ-WAGNER, Dict. du droit can.'' (Paris, 1901).

WILLIAM H.W. FANNING

Pars dynamica
The pars dynamica is the "moving part", the persons of the pars statica acting according to the laws of the process.

Since the Emperor Constantine gave bishops the same judicial authority as that of secular judges over cases brought before them with the mutual consent of the parties, Roman trial procedural law has influenced canonical trial procedural law. Gregory the Great, himself a former civil judge for the Prefecture of Rome, ordered John the Defender to use Roman procedural law in his adjudication in Spain, and by so ordering, Gregory was saying that Roman law could and should be used in ecclesiastical courts.

Roman trial procedural law still has an influence on canon law. Many chapter headings from both the 1917 Code of Canon Law and the 1983 Code of Canon Law use verbatim the headings of the Corpus Iuris Civilis of Justinian I.

Presumption
A presumption is a reasonable conjecture concerning something doubtful, drawn from arguments and appearances, which by the force of circumstances can be accepted as a proof. It is on this presumption our common adage is based: "Possession is nine points of the law". Presumption has its place in canon law only when positive proofs are wanting, and yet the formulation of some judgment is necessary. It is never in itself an absolute proof, as it only presumes that something is true. Canonists divide presumption into:
 * 1) presumption of law (juris), or that which is deduced from some legal precept or authority expressed in law or based upon precedents or similarities, and
 * 2) presumption of a judge or man (judicis or hominis), when the law is silent on the subject and an opinion must be formed according to the way that circumstances and indications would affect a prudent man or judge.

Declaration of absence
Contumacy, or contempt of court, is an obstinate disobedience of the lawful orders of a court. Simple disobedience does not constitute contumacy. Such crime springs only from unequivocal and stubborn resistance to the reiterated or peremptory orders of a legitimate court, and implies contempt or denial of its authority. The general law of the Church demands that the citation, or order to appear, be repeated three times (in the United States twice) before proceedings declaratory of contumacy take place. A peremptory citation, stating that the one replaces the three, satisfies the law. Contumacy may arise not only from disobedience to the citation proper, but also from contempt of any order of a lawful court. Contumacy is commonly divided into true and presumptive. True contumacy takes place when it is certain that the citation was served, and the defendant without just cause fails to obey the terms of such citation. Presumptive contumacy occurs when there is a strong presumption, though it is not certain, that the citation was served. The law holds this presumption equivalent to a moral certitude of service of citation. The defendant becomes guilty of contumacy if, when lawfully cited, he fails to appear before the judge, or if he secludes himself, or in any way prevents the service of citation. The plaintiff incurs the guilt of contumacy by failure to appear before the court at the specified time. And the defendant or plaintiff may be proceeded against on the charge of contempt, if either rashly withdraws from the trial, or disobeys a special precept of the judge, or refuses to answer the charges of the other party. A witness becomes guilty of contumacy by disobeying the summons or by refusal to testify in the cause at issue.

All causes excusing appearance in court exempt from contempt of court. The following, among others, produce such effects:


 * (1) ill-health;


 * (2) absence on public affairs;


 * (3) summons to a higher court;


 * (4) inclement weather;


 * (5) unsafety of place to which cited.

These and like causes, if known to the judge, render null and void any sentence pronounced by him in such circumstances. But if they be unknown to the judge at the time of sentence, the condemned, on motion, must be reinstated in the position held by him prior to the sentence. Contumacy should never be held equivalent to a juridical confession of guilt. It cannot therefore dispense with the trial, but only makes it lawful to proceed in the absence of the party guilty of contumacy as though he were present (Third Plenary Council of Baltimore, no. 313). Contempt of court, being an act of resistance to legitimate authority, is a crime, and therefore punishable. The chief penalties are:


 * (1) The trial proceeds in the absence of the contumacious person, and presumably to his detriment;


 * (2) presumption of guilt, but not sufficient for conviction;


 * (3) a pecuniary fine at the discretion of the judge;


 * (4) suspension;


 * (5) excommunication may be inflicted, and if the contumacious party be not absolved within one year he may be proceeded against as suspected of heresy (Council of Trent, Sess. XXV, ch. iii de Ref.);


 * (6) loss of the right of appeal from a definitive sentence, in all cases of true contumacy.

Presumptive contumacy does not carry this penalty. Before inflicting penalties the guilt of contumacy must be established by legal proof. The accused must be cited to answer the charge of contumacy, which must be prosecuted according to the procedure established and laid down in the law. SANTI-LEITNER, Prœlectiones Juris Canonici (New York, 1905); SMITH, Ecclesiastical Trials (New York, 1887), II, 1010-1025; BAART, Legal Formulary (New York, 1898). 324-330; FERRARIS, Prompta Bibliotheca, s. v.; ANDRÉ-WAGNER, ''Dict. de droit can. (3rd ed., Paris, 1901), I, 563; TAUNTON, The Law of the Church'' (London, 1906). s. v.

.

Witnesses
One who is present, bears testimony, furnishes evidence or proof. Witnesses are employed in various ecclesiastical matters, as in civil, in proof of a statement, fact, or contract. According to various circumstances a witness is one who is personally present and sees some act or occurrence and can bear testimony thereto; one who on request or in behalf of a party subscribes his name to an instrument to attest the genuineness of its execution; one who gives testimony on the trial of a cause, appearing before a court, judge, or other official to be examined under oath. The espousals of Catholics ("Ne temere") to be binding must be in writing, signed by the contracting parties and ordinarily by two witnesses, or by a pastor or ordinary, each within his own territory, as sole witnesses. In case either or both parties are unable for any cause to write, an additional witness is necessary. Catholics are incapable of entering into lawful wedlock ("Ne temere") except in the presence of a parish priest, or ordinary, or other priest duly delegated, and two witnesses. Though not necessary for validity of the act, the Church desires in both cases that these witnesses be Catholics (S.O., 19 Aug., 1891). Witnesses of a marriage sign no ecclesiastical document, though they may be called upon by the state to attest by their own hand certain civil records. Sponsors at baptism and confirmation are not properly witnesses; they assist for other purposes (see RELATIONSHIP). A canonical precept, when employed, must be delivered in the presence of the vicar general or two others as witnesses (Cum magnopere, VII). Ecclesiastical documents are attested or witnessed as circumstances require, e.g., by the chancellor, clerk of the court, prothonotary apostolic. Expert witnesses to some extent have a place in canon law. In ecclesiastical trials witnesses are adduced to prove a fact directly, or indirectly, i.e., by establishing the falsity of the contrary.

The essential qualifications of a witness are knowledge of the fact at issue and truthfulness: he must be an eye-witness and trustworthy. Hearsay witnesses, however, are admitted, if necessary, in matters not of a criminal nature, e.g., in proof of consanguinity or other relationship, baptism, etc. Anyone not expressly prohibited may testify. Some, as the insane, infants, the blind or deaf, where sight or hearing is necessary for a knowledge of the facts in question, are excluded by the natural law; others by canon law, as those who are bribed or suborned, those who are infamous in law or in fact, convicted perjurors, excommunicated persons, all in a word whose veracity may be justly suspected. The law likewise rejects those who on account of affection or enmity may be biased, as well as those who may be specially interested in the case. Parents as a rule are not admitted for their children, particularly when the rights of a third party are at stake, or against them and vice-versa; relatives for one another; lawyers for their clients; accomplices or enemies for or against one another; Jews or heretics against Christians; lay persons against clerics, except their own interests are at stake, or there are no clerics to testify; minors or women in criminal cases tried criminally, unless their testimony is necessary, or they testify in favor of the accused. Clerics, unless compelled by civil authorities, are not allowed to testify against the accused when sentence of death is to be imposed (see IRREGULARITY). There are many exceptions to these general statements. A witness is more easily admitted in favour of a person than against him, and in civil than in criminal trials. No one is tolerated as a witness in his own case. Hence, those who are engaged in a similar cause, a judge who has adjudicated a like case, etc. are excluded. False witnesses are those who under oath prevaricate or conceal the truth that they are bound to tell: they are guilty of perjury, and if convicted are infamous in law. Notaries or others by altering or falsifying documents substantially become guilty of forgery (q.v.). (See ESPOUSALS; PROOF; EXAMINATION.)

Decret. L., II, tit. 20, De testibus et Attestationibus; SANTI, Praelect. Juris Can.; TAUNTON, The Law of the Church, s.v.

ANDREW B. MEEHAN

Supreme Tribunal of the Apostolic Signatura

 * only administrative tribunal
 * extra-judicial appeal abolished, 1908