Page:Catholic Encyclopedia, volume 8.djvu/618

 JUDGE

546

JUDGE

The syndic is the counsel of- a juridical person, a col- legiate body or a chapter (X, De syndic, I, xxxix). The chief duty of the conservators is to represent the rights of the pcisoncc miscrabilcs, i. e. members of or- ders, the poor, widows, orphans (c. xv, in VI'°, De ofl. et pot. jud. deleg., I, xiv). The fiscal promoter (promolor fiscalis) is appointed by the ecclesiastical authorities to watch over ecclesiastical discipline (In- structio Congr. Ep. et Reg., 11 June, ISSO, art-, xiii), consequently in penal cases he appears as public prose- cutor. A defensor matrimonii, or defender of the mat- rimonial tie, assists in suits concerning the invalidity of a marriage (Benedict XIV, "Dei miseratione ", 3 November, 1741).

In addition to his jurisdiction, which can be ordinary, quasi-ordinary, or delegated, the judge must also have certain physical and moral qualities. First, he must be an ecclesiastic (c. ii, X, De jud., II, i). Consequently women and laymen are excluded from the office of ecclesiastical judge. Yet the pope could confer the office upon a layman (Gloss to " Pra?sumant ", c. ii, X, De jud., II, i). It is further necessary to have full use of his senses and understanding, and suitable legal knowledge; the person appointed must also be twenty years old; but eighteen years will suffice for a judge appointed by the pope or if the parties agree to it (c. xli, X, De off. jud. deleg., I, xxix). The judge must also have a good reputation, must not be excommuni- cated, suspended from office, or under an interdict (c. xxiv, X, De sent, et re jud., II, xxvii). Above all he must be impartial. A suspicion of partiahty attaches to the judge who is personally interested in a case (c. xxxvi, X, De appellat., II, xxviii), or is related by blood within the fourth degree to one of the parties, or connected with one by marriage (c. xxxvi cit.), or who lives in the same house, or dines at a common table, or is otherwise friendly, or on the other hand inimical, towards one of the parties (c. xxv, X, De off. jud. deleg., I, xxix), and he may be rejected {recusari, exceptio judicis suspecti) by the accused or by both par- ties as prejudiced (suspedus). If objection be raised against a judge on the ground of prejudice, which must be done in writing and if possible before the beginning of the action (c. xx, X, De sent, et re jud., II, xxvii), arbitrators are to pass on the objection (c. xxxix, X, De off. jud. deleg., I, xxix); if, however, objection be raised against the delegate of the bishop, the decision rests with the bishop (c. iv, X, De foro compet., II, ii). If the objection be declared well- founded, the judge transfers the case, with the con- currence of the party who brought the accusation, to another or to a higher judge (c. Ixi, X, De appell., II, xxviii). If the judge lack the necessary qualifica- tions, and this be known to the parties in the suit, the decision is invalid. If, however, his unfitness be un- known to the parties, and he follow statute law, the Church supplements the deficiency, even if the judge have acted in bad faith.

Ecclesiastical jurisdiction is exercised over all bap- tized persons. In order, however, that an ecclesiasti- cal judge may be permitted to exercise de facto his judicial power he must also be competent, i. e. must be authorized to pass judgment on a given person in a given case. Proceedings held before a judge without competence are null and void. Those subject to the jurisdiction of a certain judge are said to be within the competence (competent ia) of his court, or have their forum in him. The forimi is either the free, vol- untary choice of the parties (forum prorogatum), or it is defined by law (forum legale). But in criminal and mat rimonial cases there is no forum prorogatum (c. ix, X, De in integr. restit., I, xli). Ecclesiastics can choose another judge only with the permission of the bi.shop, and in this case he must be an ecclesiastic (c. xii, xviii, X, De foro compet., II, ii). The legal forum (forum legale) is either ordinary, if the proper course of the regular courts is followed, or extraordi-

nary, if, for legal reasons, a regular court is passed over. Moreover, the forum legale is either general (commune), corresponding to the imiversally valid law, or special or privileged (upccinle sivc prii'ilegiatum), resting on privilege, as in the case of ecclesiastics on account of the pririlcqinm fori which they cannot renounce. As the jurisdiction of a jiulge is generally limited to a defined locality, the forum commune is fixed by the domicile or quasi-domicile of the accused. The axiom holds: Actor sequitur forum rei, the plaintiff goes to the court of the accused (c. v, viii, X, De foro compet., II, ii). Domicile (q. v.) is that place where one actually resides with the intention of always re- maining there. Quasi-domicile is determined by ac- tual residence at the place and the intention to remain there at least the greater part of the year. There is also a domicile by operation of law, legal or fictitious domicile (doniiritium legale sive fietitium). Thus a wife is subject to the jurisdiction of the domicile of the husband, chililrcit to that of the parents, religious to that of the place where the monastery is situated, persons having no fixed abode to that of the present place of residence. A process can be instituted at Rome against an ecclesiastic who is only accidentally there (c. xx, X, De foro compet., II, ii). Besides the forum domicilii, the usual one, there is also that of the object (forum rei sitw, where the thing is situated), i. e. complaint can be brought before the judge in whose district the cotitroverted object is (c. iii, X, De foro compet., II, ii); the fonun whore the contract is made (forum contractus), i. e. the jiarties can bring action before the judge in whose district the disputed con- tract has been made (c. xvii, X, De foro compet., II, ii); that of the offence (forum delieli), within the juris- diction where the offence was committed (c. xiv, X, De foro compet., II, ii). There is also a forum arising from the connexion of matters (forum connexitatis sii'e continentice causarum), if the matters in dispute are so interrelated that one cannot be decided without the other (c. i, X, De causa possess., II, xii); also the forum of a cotmterplea (forum reconventionis sive reac- cusationis), i. e. in a criminal suit the defendant can, on his side, accuse the plaintiff in the court of the judge before whom he himself is to be tried (c. ii, X, De mut. petit., II, iv). If the judge himself wishes to bring an accusation the superior appoints the Judge who is to hear it (c. i, c. xvi, Q. vi). The decision of an incompetent judge is valid if by common error (error communis) he is held to be competent. In civil disputes the parties can entrust the decision to any desired arbiter (X, De transact., I, xxxvi; X, De arbitr., I, xliii).

If the judge render a defective decision appeal can be taken to the next higher judge. This relation of the courts to one another and the successive course of appeals (gradus) is called succession of instances, and follows the order of superiority. From the beginning the bishop, or his representative, the archdeacon, or the "official" (ofpcialis), or the vicar-general, was the judge in first instance for all suits, contentious or criminal, which arose in the diocese or in the corre- sponding administrative district, so far as such suits were not withdrawn from his jurisdiction by the com- mon law. The court of second instance was originally the provincial synod, later the metropolitan [c. iii (Syn. of Nica>a, an. 325, c. v), iv (Syn. of Antioch, an. 341, c. xx), D. XVIII]. The court of third instance was that of the pope. The court of first instance for bishops was the provincial synod, the metropolitan, the exarch, or the patriarch; the court of second in- stance was that of the pope [c. xxxvi (Syn. of Sardica, an. 343, c. vii), c. II, Q. vi]. Only the (lope could be the judge of first instance for exaielis and patriarchs. Since the Middle Ages the pope is the judge of first instance in all more imjiortaiit ('pis<'pal causes (ra».v(r maiores, grnviims, (liff:cili(ires, (iiilii(i), tlic imniliorand extent of which are in no way exactly tlelinable, but to