Page:Catholic Encyclopedia, volume 4.djvu/512

 COURTS

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COURTS

the territory where the object in question is situated, because it is only natural that where a chattel is in question (actio realis), precisely such chattel, and not the person, should be taken chiefly into consideration; thereby, also, the trial becomes more easy and rapid. In addition there are other (extraordinary) ways by which a person can obtain "right of forum" in a certain place; it will suffice to indicate them briefly. Besides the "forum" that everybody is considered to have in the Roman Curia, there is also the "forum" granted by reason of the prorogation or suspension of a case, to which should be added the prevention (quashing of indictment) and transfer of a case.

VII. Ecclesiastical Procedure. — Two methods of judicial procedure are recognized in canon law: one ordinaiy, also called full and solemn; the other simple, extraordinary, and summary. In the ordinary procedure all the solemnities prescribed by the law are observed. These are described in the second book of the "Decretals" of Gregory IX, devoted entirely to the conduct of ecclesiastical courts. They may be summarized as follows: — The party intending to bring suit must first send to the judge a written petition manifesting his intention, and setting forth liis claim. If the judge thinks the claim reasonable and therefore worthy of a hearing, he issues a summons (citatio) calUng the accused before his court. In modern civil codes a private citizen can oblige his fellow-citizen to present himself before the judge for the examination of a case. Though found in the Roman law of the Twelve Tables, the canon law does not recognize in the private indi^•idual any such right, and holds to the later procedure of Roman law, that dates from Ulpian and Paulus, and was afterwards confirmed by the laws of Justinian. According to this pro- cedure, the summoning of the accused imphes power of jurisdiction, and must therefore proceed from the judge himself. Generally an ecclesiastical judge ought not to be satisfied with one summons; it shoiUd be repeated three times before the accused can be considered contumacious. However, if in the sum- mons itself it be clearly stated that it must be con- sidered as final, a repetition of the summons is not necessarj'. The defendant, being summoned, must appear before the judge, and, unless the case be a criminal one, instituted to bring about the legal punishment of the guilty party, or one of certain other exceptional cases, he may, after hearing the cause of the simimons, immediately enter a counter- plea against the plaintiff before the same judge.

When the defendant is summoned, whether it be his wish to enter a counter-plea or not, he must appear along -nnth the plaintiff before the judge, and within the time fixed by the latter. When they have come before the judge, the plaintiff states clearly and precisely what he demands of the de- fendant, and the defendant on his part either admits the justice of the plaintiff's demand, in which case he must make complete satisfaction, or he denies it (at least in part), and makes known his wish to contest the matter judicially; we then have a con- tested case {lis cnntestata). Such a contestation accomplishes two things: first, it fixes_ precisely the object of the trial, and, second, the parties bind them- selves by a quasi-contract to prosecute the trial, and agree from that moment to accept all the obliga- tions imposed by the sentence, including the obliga- tion of the condemned party to make payment: in a word, they agree to abide by the legitimate find- ing of the court. Tlien follows the " oath of calunmy" {juramentum cahimnia-), i. e. if demanded by either party. This oath covers the entire case, and can therefore lie taken but once in the course of the same trial. Its object is the credibility which both plain- tiff and defendant arc anxious to maintain, convinced as each is that he has a just case. By this oath

each party affirms that he will continue the trial solely for the purpose of htigation, and not of calumny; he promises, moreover, to observe good faith throughout the proceedings. To this oath is added another, namely, to tell the truth, and also an oath of malice or fraud (juramentum malitia). This latter would not be called for ^\ith reference to the entire case, but only to some part of the pro- ceedings, if ever a presumption arose against one of the litigants as acting from malice or fraud. In modern canonical procedure the "oath of calumny" is no longer called for. At this stage, the judge fixes a period within which the parties must set forth their arguments in defence of their rights; this period can easily be extended by the judge at the request of one of the parties, should he declare that he has not yet been able to produce all liis e%ddence. There- upon the case is argued, and the judge must weigh all the evidence brought forward by the contestants, whether this evidence be written or oral. If after this the parties, on being questioned, answer that they have no further arguments to make, the judge declares that the time for producing e\'idenee is closed. The aforesaid judicial interrogatory and declaration are kno%\Ti as the conclusio in causd, or the last act of the judicial hearing of the case, and with it expires the time allowed for submission of evidence.

To this period of argumentation succeeds the interval during which the judge studies and weiglis the arguments advanced. During this time the judge ni.ay ask the parties to supply declarations | and explanations of their evidence. If, in spite of I this, the judge is unable to form a morally certain , judgment as to the rights of the plaintiff or of the i defendant, he must request that the proceedings | be supplemented by further proofs; if, notwithstand- I ing, the case is still doubtful, he must decide that the plaintiff' has not estabhshed his claim. If, on the other hand, the judge can arrive at a decision from the proceedings and from the evidence adduced, he must legally acquit or condemn the defendant by a definitive sentence, this being precisely the legal decision of the judge concerning the case pro- posed by the litigants. What has been said thus far holds good for a solemn ecclesiastical trial. In a summary trial, as already stated, some of these solemnities may be omitted. To begin with, the fonnal 'sratten petition may be omitted. The plaintiff may present his petition orally, and the chancellor of the court makes record of it in the acts of the proceedings. Nor are tlu-ee judicial simmions required; one suffices, even though it be not expressly stated that it must be considered peremptory and final. The solemn declaration of mutual purpose- to pursue the case to a legal ending is likewise omitted, being implicitly contained in the articles on which the mutual argumentation of the case is based. The proceedings may continue e\"en on days when the court would not otherwise sit (tempon k\ jeriato). As far as possible, aU postjX)nemcnts (dila- ^^ Clones) are avoided. The fonnal declaration of thf judge that the hearing is closed is not necessary, anc sentence may be pronounced without the usual solomr fonnahties; it must, however, be written, and the parties must have previously been cited by at leas! one summons.

Those things, Iwwever, which are demanded ii all trials by the natural law or the common usagi of nations must not be omitted in this summar trial. The ]>roinisc under oath to speak the trutl Ls never dispcMiscd with. Each litigant may preser a full arguiiu'iilation {jmxiJionrs ft arlicnli) of hi case, and Mi:iy pniduce liis evidence. Finally, th judicial interrogatory of the two parties c.innot b omit tod, whether it takes place at the request of th litigants, or because the judge eonsiilere it liis dut;

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