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Rh APPEALS

652

APPEALS

ecclesiastical or other question without pennission from the bishop he could be forced to withdraw tlie case by the infliction of penalties and censures, yet the bishop mast not refuse the permission if the parties have ineffectually attempted a settlement before him. If the bishop is to be cited, the per- mission of the Holy See is required. By a special declaration of Propaganda (6 September, 1886), a cleric's transfer of a claim to a layman for the purpose of evading the censures is checked by the requirement of the consent of the bishop to such transfer, if made for the purpose of the suit. Justice Redfield (in vol. XV, Am. Law Reg., p. 277, quoted mth approval in vol. XCVIII of Penn. Rep., p. 213) says in reference to the United States generally: "The decision of ecclesiai^tical courts or officers having, by the rules or laws of the bodies to which they belong, jurisdiction of such questions, or the right to decide them, ^^^ll be held conclusive in all courts of the civil administration, and no question involved in such de- cisions will be revised or reviewed in the civil courts, except those pertaining to the jurisdiction of such courts or officers to determine such questions accord- ing to the laws or the usage of the bodies they repre- sent." Justice Strong, of the Supreme Court of the United States, in his lecture on the "Relations of Civil Law to Church Policy" (p. 41), speaks of the Church as "an interior organization within a religious society", and adds (p. 42), "I think it may be safely asserted as a general principle that whenever questions of dis- cipline, of faith, of Church rule, of membership, or of office, have been decided by the Church, in its own modes of decision, civil law tribunals accept these decisions as final and apply them as made." Zaccaria, Disaertazioni di storia ecclesiaslica (Rome, 1841); Affre, Traite des appels comme d'abus (Paris, 1844); Nussi, Conventionea inter S. Sedem et Civilem Poteatatem (Mainz, 1870); D'AviNO, Enciclopcdia delV ecdeaiaslico (Turin, 1878); ANDRi-WAC3NER, Diet, de droit canon. (3d ed., Paris, 1901), s. v.; Desmond, Church and Law (Chicago, 1898).

R. L. BURTSELL.

Appeals. — The purpose of this article is to give a comprehensive view of the positive legislation of the Church on appeals belonging to the ecclesiastical forum; but it does not treat of the nature of the ecclesiastical forum itself nor of the rights of the Church and its supreme head, the pope, to receive appeals in ecclesiastical matters. For these and other similar questions see Pope, Primacy, Coun- cils, G.\LLicANisM, Ecclesiastical Forum.

I. Definition, Kinds, and Effects. — An appeal b "a legal application to a higher authority for redress against an injury sustained through the act of a lower authority." The lower authority is called judex a quo (judge appellee); the higher authority, judex ad quern (appellate jvidge or court). Appeals are judicial and extrajudicial. A judicial appeal is one made against such acts as are performed by the lower authority, acting in the official capacity of judge at any stage of the judicial proceedings. Hence a judicial appeal is not only one taken from a final sentence, but such is also an appeal taken from an interlocutory sentence, viz. from a sentence given by the judge before pronouncing the final judgment. An extrajudicial appeal is one made against acts performed by the inferior authority when not acting as judge, such as for instance a bishop's order to build a school, the election of a candidate to an office, and the like. Every appeal, when admissible, has an cITect called devolutive (appellalio in devolutivo), consisting in this, that through the law there devolves on the appellate judge the right to take cognizance of, and also to decide, the case in question. Appeals have often also a siLspensivc cfTect, which consists in suspend- ing the legal force of a judgment or an order so tliat the judge a|)pcllce is prevented from taking any further action in llie case unless his action tends to

favour the appellant in the exercise of his right of appeal.

II. Appeals in Church History. — ^The ri^ht of appeal is founded on the law of nature, which requires that a subject, bound as he is to abide by the action of a superior liable to err, should be sup- plied with some means of defence in ease the latter, through ignorance or malice, should violate the laws of justice.

Accordingly, the sacred canons as early as the first oecumenical council allow clerics who believe themselves to have been wronged by their bishops to have recourse to higher authorities (Council of Nice, 325, can. 5). In the same century and in the following centuries the same right is insisted upon in other councils, both local and universal. In the East mention of it is made in the councils of Antioch (341, c. 6, 11), and Chalcedon (4.51, can. 9). In the West it is met with in the councils of Carthage (390, can. 8; 397, can. 10; and 398, can. 66), Mileve (can. 22), Vannes (465, can. 9), Viseu (442), Orleans (538, can. 20). According to these canons the court of appeal was that of the neighbouring bishops of the provincial synod; and there is mention of the metro- politan with the other bishops in documents of the eighth and ninth centuries (VIII (Ecumenical Coun- cil, 868, c. 26; Council of Frankfort, 794). But as the provincial councils came to be held less fre- quently, the right of receiving appeals from any bishop of a province remained with the metropolitan alone; a practice which was repeatedly sanctioned in the Decretals (c. 11, X, De off. ord., I, 31; c. 66, X, de appell., II, 28), and has never since been abandoned. Though the right of appeal was never denied, it had to be kept within the proper bounds in order that what was allowed as a means of just defence should not be used for evading or putting obstacles to the administration of justice.

In this, canonical legislation followed several of the rules laid down in the Roman civil law (Corpus Juris Civilis), e. g. those prescribing the limits of the time available for entering an appeal (Nov. 23, C. 1; c. 32, X, De elect., 1, 6), or finishing the case ap- pealed (1, 5, De temporibus . . . appellationum, c. VII, 63). 'The same is true of laws excluding cer- tain appeals which are rightly presumed to be made for no other reason than in order to retard the execu- tion of a sentence justly pronounced (1, un. C. Ne liceat in una eademque causS., VII, 70; c. 65, X, De appell., 11,28).

In several points, however, the sacred canons were less rigorous, either by leaving more to the discre- tion of the judge appellee in cases of laws intended for his benefit or interpreting more liberally laws imposing strictures on the appellant in the e-xercise of his right (c. 2, De appell. Clem., II, 12; 1, 24, c. De appell., VII, 62; 1, un D. De libellis dimisso- riis, XLIX, (3). Moreover, if abuses crept in, they were checked by the sacred canons, as appears from the enactments of popes and councils of the twelfth and thirteenth centuries, embodied in the authentic collections of the "Corpus Juris Canonici", in the title "De appellationibus". Thus we see, in 1181, the Third Lateran Council (c. 26, X, De appell., II, 28) forbidding subjects to appeal from ecclesiastical discipline, and at the same time preventing bishops and other prelates from taking undue measures against their subjects when the latter were about to use their right of appeal. Again, in 1215, we see the Fourth Lateran Council (c. 13, De off. ord., I, 31) insisting that appeal should not interfere with bishops while taking legal action for correcting or reforming morals.

These and other similar wise regulations were enforced again by the Council of Trent (Sess. 22, c. 7, De reform; c. 3, De appell., in 6). Especially did this council provide that tlie regular administration