Page:Catholic Encyclopedia, volume 1.djvu/727

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of :i diocese should not suffer from appeals. Thus, besides forbidding (Sess. 22, c. 1, De ref.) that ap- peals should suspend the execution of orders given for the reformation of morals and correction of abuses, it mentioned explicitly several acts of pas- toral administration which were not to be hani|5ered by appeals (c. 5, Sess. 7, De ref.; c. 7, 21, l)e ref.; c. 18, Sess. 24, Dc ref.), and it ordained that appeals should not interfere with decrees made by a bishop while visiting his diocese (c. 10, 24, De ref.). Moreover, in order to protect the authority of local ordinaries, it prescribed that if cases of ap- jjeals of a criminal nature had to be turned over to judges outside tlie Roman Curia by ptmtifical au- thority, they should be delegated to the metropolitan or to the nearest bishop (c. 2, Sess. 13, De ref.). Finally, this council provides that api^eals should not cause minecessary delays in the course of a trial, where it forbade (as the Roman law had done) ap- peals from interlocutory sentences, admitting only a few necessary e.xceptions (c. I, Sess. 13, De ref.; c. 20, Sess. 24, De ref.). The decrees of the Council of Trent and other pontifical laws, framed for the purpose of reconciling freedom of apjical with the prompt exercise of episcopal jurisdiction in matters admitting of no delay, were too important to be allowed to go into desuetude, and were embodied by Benedict XIV in his constitution "Ad militantis", 30 March, 1742.

After this brief reference to the main sources of the laws concerning ecclesiastical appeals — tlie " Corpus Juris Canonici ", the " Corpus Juris Civilis ", the Council of Trent, the Const. "Ad militantis", — it only remains to mention the Instruction of 11 June, 18S0, sent to the Italian hierarchy by the Sacred Congregation of Bishops and Regulars, containing rules for a sununary procedure (also in the matter of appeals) to be used by bishops in trying criminal cases. This same Instruction with a few changes was sent a few years later by the Sacred Congrega- tion of Propagantla to the hierarchy of the Lnited States of North America. In the following para- graplis we shall refer to these two documents by calhng them respectively Instr. Sacra, and Instr. Cum mniin(>i)ere.

III. I'ltESE.VT Legislation. — 1. Persons possess- ing the right of appeal. The right of appeal is granted to all, except such as are excludecl by the law. The law excludes: (1) Those who have re- nounced their riglit, either expressly, or tacitly, for instance by not appealing withm the prescriljcd time.

(2) Those who have been condemned in their ab- sence, when such absence was due to contumacy.

(3) Whoever has disregarded the rights granted by the law to his adversary, while the appeal of the latter was pending. (4) Those against whom three sentences (all in the very s!ime ciuse) have been passed. (5) Those who besides having confe.ssed their crime in court have been also fully convicted by legal proofs. (6) The party who of liis own ac- cord chose to have his case settled by means of the proof called juramentum litis dccisorium (decisive oath). (7) Excommunicated persons are forbidden to appeal from exlrnjudicial acts; though, unlc^s-s they are rilandi (sec Excommumcation), their apjx;al can be admitted if in court nobody objects; and moreover, all, even the vitandi, are admitted when their contention is that their excommunication was invalid, and in a few more in which equity or the common good requires that they should be heard.

2. Cases in which appeals are admitted — Ap- peals are admitted in all cases not excepted by the law. The law admits no appeal: (1) When the crime is evidently notorious. (2) .Vgainst an intcr- lociilori/ sentence or order, except in the following cases: (a) when the interlocutory judgment is

equivalent to a final sentence, because it is such that a final sentence cannot be expected, for instance when the judge admits a perenjptory exception;

(b) when such interlocutory decision or onler takes place during a trial which admits no appeal from its final sentence, as happens in the ease of one against whom two sentences nave already been passed;

(c) when, in general, the injury is such that it cannot Ix! remedied by the final sentence or by an appeal from the final sentence, as is the case when the penalty inflicted is such that no further action can annul its elTects. To distinguish the inter- locutory sentences under (a) from those under (b) and (c), the former will be called quasi-final sen- tences, and the latter purely interlocutory sentences.

(3) From an invalid sentence (see below, 7-A).

(4) From sentences pronounced ex injormatA con- scientid. (.')) In cases settled by transaction (compromise), or decided by arbitrators to whom the parties had of their own accord referred the settlement of their disputes. (6) Whenever the appeal is evidently a frivolous one, being altogether groundless.

3. When appeals have a su.'ipensive effect. — In cases not excepted in the preceding paragraphs the general rule is tliat judicial appeals, besides having the devolutive effect common to all appeals, have also a suspensive effect. Some authors hold the same principle with regard to extrajudicial appeals, and base their assertion on c. 10, De appell., in sexto (II, 15) and on c. 51, 52, X, De appell. (II, 2S). Others deny that an extrajudicial appeal, as such, has a suspensive effect, because it is not an appeal properly so called, but they hold that it has this effect as a provocatio ad causam (a legal application for a cause or suit). Hence extrajudicial appeal has this suspensive effect only while the cause or suit is pending, that is, from the time when the appellate judge admits the appeal and begins to examine the case {Ut lite pendente nihil innovetur, Decretals of Gregory IX, Book II, tit. 10) But neither judicial nor extrajudicial appeals have a suspensive effect in cases expressly excepted by the law. Accord- ingly:—

(1) .\n appeal has no suspensive effect (a) when it is taken from any act which inflicts a censure proix?rly so called (viz., a censure having the char- acter of a medicinal punishment), depriving a cleric of benefits of a spiritual character; (b) if the ap- peal is entered after the censure has already been incurred. Hence this prohibition does not ex- tend: (a) to a declaration of a censure; (b) nor to a censure inflicted as a vindicative punishment; (c) nor to a censure depriving a cleric of benefits of a temporal character, such as a suspension from his right to a salarj-; (d) nor, finally, to the ease when the censure either has only been threatened, or it has been inflicted conditionally, and the condition under which it would be incurred has not yet been verified. (2). .\n appeal has also only a devolutive effect when the judge appellee has acted in virtue of powers granted to him with the clause appellalionc rcmolii, provided the case is not one of those expressly men- tioned by the law as admitting an appeal. In cases the appeal may have also a sus[>ensive effect. (3). Appeals have no suspensive effect in the cases laid down in the Const. "Ad militantis" of Benedict XIV. With regard to this document the following points are worthy of notice: (a) This constitution does not contain new laws, but only confirms already existing enactments and restores them to their former vigour, if olwolete (§ 48). (b) In the cases which it enumerates it forbids in general that ap- peals should have a suspensive effect, but it does not do away with the devolutive effect, unless a even according to the preceding legislation, would admit of no appeal at all (§ 38). (c) Not