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 COURTS

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COURTS

lecrood by Innocent III in the Fourth Lateran Council [cap. 38, c. 11 de probat., X. (II 19)], is a lublic person whose obligation it is to transcribe rith fidehty the acts of tlie case. As this office is neroly tliat of a clerk, and does not include any udicial power or jurisdiction, it may be held in cclcsiastical courts even by a layman. Still, clerics re not excluded from this office, nor docs cap. 8, Ne dcriei vel monachi", etc., X. (Ill, 50) contra- ict (his, as there it is a question only of clerics who old .such office for the sake of pecuniary profit; nor i the contrary affirmation of Fagnani of any weight, s it is not supported by conclusive reasons. This I shown also by the actual practice of ecclesiastical Durts. It is sufficient here to call to mind the otaries of ancient times who wrote down the acts f the martyrs, those who were employed in the ouncils, and still more the class of the prothonotaries, 'ho have recently been di\'ided by Pius X (21 'eb., 1005) into four classes, and rank among the ighest prelates.

The Auditor is sometimes a delegated judge, to •horn is entrusted a certain amount of jurisdiction, . g. the formal opening of a case (contextatio litis); 1 the practice of the present day he would be called n instructing judge. He may also be an ordinary fficial to whom has been assigned, but without any irisdiction.a part of the proceedings, e. g. the simple xaiuination of the witnesses; he is then properly illeti auditor. It follows from all this that the uties and powers of the auditor must be deduced •om the mandate itself. It was customary to have uditors even in the Middle Ages, especially in the toman Guria, and there still remains some vestige of dis office in the auditors of the Rota Romana, who fter the time of Gregory IX formed a special college Durandus, in Speculum).

AsxcsxoT. — The title of assessor has also a twofold leaning, i. c., he may be a judge in a collegiate ribunal (Dig. I, 22; Cod. I, 51), or one who assists the residing judge in interpreting the law. In the latter leaning assessors are simply advisers of the judge, ■ho aicl him to obtain a full knowledge of the case and y their advice help him to decide ju.stly.

There are some other inferior ministers of the judge 1 an ecclesiastical court, whose names it will be efficient to mention, e. g. the apparitore^'s, tahclliones, ursores (sheriffs, reporters, messengers), etc., accord- ig to the different customs of the courts.

Fixnd Promoter. — /Vfter ha%'ing spoken of the idgcs and of those who assist them in the adminis- ration of ju.sticc in the different courts, it is necessary 3 say a few words on the fiscal promoter (promotor sculis), since he plays an important part, especially 1 criminal cases. Although not on the side of the jdge, as, by public authority, he rather takes the lace of accuser or public prosecutor, still he con- ributes greatly to tlie end for which the courts rere established. The fiscal promoter (fisciis, public reasury) — though perhaps, if we attend to the most nportant part of his office, a better title would be promoter of justice" — is a person who, constituted y ecclcsi.istic.ll authority, exercises in the ecclesias- ical courts and in his own name the office of a public rosecutor, especially in criminal cases (Instr. S. C. Ipi.sc. ct Keg., I I ,Ian., 1880, art. 1.3). If we wish to jclude in the definition all that is comprehended in is office, he niis;ht be defined as a public person jgitimately appointed to defend the rights of his hurch, es|iecially in court. Paries, in his article he iirocureur fi.scal ou promoteur" (Re\^le des ciences ecclfeia.'tiqucs, April, 1897), rightly says that he whole office of (he fiscal promoter may be summed ip in three points: solicitude for the observance of lis<>ipline, particularly among the clergy; attendance ,t (he processes of beatification and canonization in piscopal courts; and defence of the validity of mar-

riage and of religious profession. All these functions, it is true, are not always carried out by one and the same person; they are all, however, included in the full idea of the promotor fiscal i>:. for it is this ofticial's duty to defend the rights of (he Church, the decency of Divine service, the dignity of the cler^, the holi- ness of matrimony, and perseverance m the per- fect state of life.

It is imnecessary here to say more about the plaintiff and the defendant in ecclesiastical courts, or about the persons appointed to assist both, e. g. advocates and procurators.

VI. The Competence of Ecclesiastical Judges. — As already explained, there are different kinds of judges and courts in the ecclesiastical foriun. Never- theless contending parties cannot choose their judge; the trial must be conducted by the proper judge (proprius judex), i. e. by one who can exert his juris- diction against the accused: in other words, he must be a competent judge. Moreover, as the accused is brought to court against his will, it is further neces- sary that the judge have the power to summon him and oblige him to appear. There are four chief titles by which an accused party comes under the juris- diction of a certain judge: residence or domicile, con- tract, situation of object in dispute, place of crime committed. It is self-evident that, if in the civil courts it was necessary for the proper administration of justice to place territorial limitations to the exer- cise of jurisdiction, this same restriction was much more necessary in canon law, since the jurisdiction of the Church extends to the entire world. Otherwise great confusion would have resulted .and the admin- istration of justice itself woukl have suffered, since it would have been very difficult to hear many cases if, as is often the case, the persons and matters con- cerned were at a great distance from the court. For this reason the famous principle of (he Rfmian law: "He who acts as judge out of his district can be dis- obeyed with impunity" [extra territorium jus dicenti impune nnn paretur, §20, De jurisdict., D. (II, 1)], adopted also by modern ci\'il codes, was accepted in canon law. This territorial character of certain courts affects not only persons, but also things (res) and rights (jura); competent judges, therefore, have power not only over persons, but also over things situated in their territory. In both civil and criminal cases, therefore, all persons are subject to the judge of their place of residence (judex domicilii). This residential forum is considered the most natural of all, therefore the ordinary and general forum for all cases, so that a person may be summoned to trial by the judge within whose jurisdiction he resides, whether the offence was committed within that territory or not. Hence it is acccjited (hat the jurisdiction of such a judge always concurs with the jurisdiction of any other judge or any other forum.

A person may also "acquire" forum, i. e. become subject to trial in any place by reason of a crime committed there; in other words, his own act brings him within the jurisdiction of a judge of a given place who can punish him, and of whom he would otherwise be independent. It is easy to see the reasonableness of this; for it is just that where a prTson has given scandal by his bad conduct he should there make amends for it by accepting the tleserved jiunishment. Again it is much easier to establish the fact and inquire into the authorship of a crime in the very ]ilace where it has been committed. Thus a person who makes a contract in a certain place thereby acquires right of forvim in the same place, though not one of its citizens nor in anysen.se a resident, provided, of course, he be present in that locality (c. 1, § 3, De foro competenti, II, 2, in 6°), it being much easier to adjudicate disputes about a contract in the place where i( was entered into. Fin.ally the possessor of a chattel (res) may be summoned before the judge of