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 COURTS

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COURTS

added that in the Eastern Church the title of metro- politan is generally, though not always, a merely honorary title, the metropolitan power being almost entirely in the hands of the patriarch himself; it is consequently to liim that an appeal lies from the judgment of the bishop. With regard to the ancient ecclesiastical discipline it is worthy of remark that in former times an appeal was allowed from the tribunal of the metropolitan to that of the primate or patriarch. Actually, with exception of the Primate of Hungary in certain cases, this primate's court no longer exists. Where appeals are possible, the courts are said to be subordinate one to the other, and are so in fact; hence, for instance, a metro- politan court can, by a genuine ortler or mandate, require such data from the inferior court as may seem to it necessary for a proper cognizance of the case. Here we must carefully note the difference which oftentimes exists between subordinate courts in ecclesiastical and in civil law. In the latter the superior court frequently exercises a certain, true, disciplinary power over the inferior court, either by instituting an inquiry into its proceedings, or by delegating a substitute, if the inferior judge should be prevented from exercising his office or should be found incapable. All this is foreign to ecclesiastical law, in which the courts of suffragan sees are subject to the metropolitan court in such matters only as regard the appeal actually before the metropolitan. In all other matters the episcopal courts are quite independent of metropolitan authority. Other courts, however, whether metropolitan ot episcopal, are in no way subordinate, but are entirely independent of one another, though this does not relieve them from the obligation of mutual assistance. Thus it may often happen that the administration of justice in one locality necessitates proceedings in the territory of another judge. Should this happen, the court which has the case in hand may request the court of the locality in which some proceeding necessary to the administration of justice or to a proper cognizance of the case must be instituted (e. g. the examination of witnesses or the execution of a summons) to see to its performance. And the court to which such a petition has been addressed tlirough requisitional letters by another court is obliged to render this subsidium iuris, or legal assist- ance, unless the request be evidently unlawful. But the obligation arises, not from the authority of the court requesting assistance, but from the authority of the common law, which so ordains. This is evidently just, for all such courts are courts of one ecclesiastical society, the one Catholic Church, whose welfare demands that in it justice be rightly administered.

V. Constitution of thk Courts. — In ecclesiastical law the Roman pontiff and the bishops, as also the metropolitans in cases of appeal, likewise all those who in their own right (ordinario iure) exercise judicial power in the Church, may pronoimce sentence personally in all cases brought before their tribunal. They may also, if they think fit, entrust the hearing of the case to judges delegated by them; and they may thus delegate, not only one person, but also several, either — to use the canonical terms — in solidiim or colleguditer. If they were delegated in solidum, or severally, then he who first took the case in hand must examine it and pronounce juilgment. But if they are to proceed cnUegialiter. we have a true college of judges, in which, therefore, everything is to be observed which the law prescribes and the nature of tilings demands in the exercise of collegiate acts. We have many examples, both in ancient and modern times, of judges who had thus to proceed as a college. We liave already made mention of the ancient discipline that prevailed, principally in the African Church, and according to which certain

f raver cases were to be referred to pro\'incial councils;, 'his regulation was retained, partially at least, by the Council of Trent. It decreed that the more important criminal cases of bishops should be re- ser\ed to the pope, wlnlst those of lesser importance are left to the cognizance of provincial councils. This is also the origin of the celebrated tribunal^ called the Rota Romana. t

The Roman congregations themselves are simplyf collegiate courts whenever they exercise judicial?; authority. In not a few dioceses the so-called' Officialutus (OfficiaHtcs) exist, which also administer justice as a college. Gregory XVI erected in the various dioceses of the States of the Church courts for criminal cases which were truly collegiate bodies and proceeded as such; though herein the pope acted, not as pope, but as temporal sovereign. Hence tliis case does not properly belong to canon law. In these courts the number of judges is not definitely fixeil, though there are usually, besides the president, two or four judges, seldom more than six. Therefore it is generally the rule that the number of judges be uneven, as the case might otherwise often be left undecided. A majority of votes decides, especially in gi\'ing sentence; if the votes for both sides are equal the case {per se) remains undecided. In this event, however, it is often provided that the vote of the president shall be decisive, or that the ease shall be decided in favour of the defendant and not of the plaintiff, unless the case be a privileged one, v. g., if the validity of a marriage is in question. What the powers of the president are in a college of judges must be gathered from the decree which established the court in question, or also from the latter's practice and tradition. It is to be noted that sometimes a court resembles a college of judges without being such in fact. Thus a bishop can order his ^•ica^- general in giving judgment in certain cases, par- ticularly in those of greater moment, to appoint assessors, whose counsel he must hear before pro- nouncing sentence. In this case it is e^^dent that there is no real college of judges, as only the vicar- general can pronounce sentence; still the case must! be examined by the assessors, who can and ought to manifest to the judge all which they think may conduce to a just sentence.

The Jvdge. — It is evident that in every trial the judge has the leading role, whether this judge be an indi^■idual or a college, and his obligation is to apply the law between the two contending parties or to pronounce what is conformable to established right and eciuity; and as his office is to see to the: execution of the law, he has the right to require from the contending parties reverence and obedience.; For this same reason he is empowered to do whate vei j is necessary to make his jurisdiction effective, anc( therefore to use moderate coercion towards obtaining the same end. This coercion can be exercised nolf only against the contending parties, if they are dis- obedient, but also against others who have ar accessary part in the trial, e. g. the procurators anc advocates. In his capacity as a public person th< judge is worthy of public confidence: hence the pre- sumption is in his favour that the legal formalitief have been properly observed in his judicial proceed ings, and that what he testifies to as judge is true Canon law commonly requires that in ecclesiasti cal tribunals there shall be other persons pre.sen' besides the judge: thus there are always a notan anil a defender of the marriage bond in matn monial cases, and a fiscal jiromoter (promotor fiscalia in the great majority of criminal cases. Ordinarilj other ))ersons are admitted, not by mandate, buj throtigh permission of the law, for the rapid am better administration of justice, v. g. assessors am auditors.

The Xotary (actuarius), whose presence wi