Charles Augustine Bachofen.

A commentary on the new Code of the canon law online

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fuerint, a iudice superiors repelli potsunt: quo in casu
illi» quibus culpa imputanda est, acta suis impensia
denuo conficere et mittere tenentur.

Can. 1645

§ X. ludicio expleto» documenta partibus restitui
debent, nisi in criminalibus, bono publico ita exigente,
iudex aliquod retinendum censuerit.

§ 2. Documenta omnia, quae apud tribunal manent,
in archivo Curiae deponantur sive publico sive secrete,
prout eorum natura exigit.

§3. Notarii, actuarii et cancellarius sine iudids
mandato tradere prohibentur exemplar actorum
iudicialium et documentorum quae sunt processui

§4. Anonymae epistolae quae nihil ad causae
meritum conferunt, et etiam subscriptae quae sint
certo calimmiosae, destruantur.

Writing plays a conspicuous part in every trial, yet
not all things that are or must be written are of equal
importance. Some concern the merits of the case and are
styled acta causae. To this class of doctmients belong
all sentences, either interlocutory or final, and proofs of
every kind, even those presented orally, because they, too,
must be put down in writing. Other papers (acta pro*
cessus) touch the mode or form of procedure. To this
class belong the stmimons, intimations, the oajths taken,
and, perhaps, the special rules laid down for proceeding
in a particular case. If one should wish to call the acta
causae " records," and the acta processus " minutes," he
would, we believe, not commit a grievous mistake, al-

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CANONS 1643-1645 91

though the word records has a wider significance, thougb
not as wide as " minutes." Which of the acta must be
put in writing in order to be valid is determined under
each heading; thus, for instance, the summons must cer-
tainly be recorded (can. 1723 f.) ; but if no invalidating
dause is attached, a trial cannot be attacked as invalid
because some portion of the proceedings was not written

Some ecclesiastical acts are intended not only for pri-
vate use, but for the Church at large,* whose language
is Latin, and since these records in many cases must be
forwarded to Rome, which acknowledges as official lan-
guages only Latin, Italian, and French,* all acts should,
as far as possible, be composed in Latin, unless there is
a just reason for departing from this rule. However,
the questions put to the witnesses, their answers, the
so-called articuli or specified charges and counter-charges
of plaintiff and defendant, and also the reports of ex-
perts* are to be written in the vernacular language (see,
however, can. 1644, §2). Each and every sheet of the
records as well as the minutes {folia processus) must!
be paginated and signed by the secretary, who has alsd
to put the seal of the tribunal on each. As soon as any
part of the acts (for instance, the defense, or the hearing
of one set of witnesses, or the report of an expert) haa
been completed, the secretary should sign his name to tho
record, which is then passed on to the judge (or to thq
president of the tribunal, if a board of judges is sitting)
for their respective signatures. This process must be
repeated every time the session is interrupted or ad-
journed. The Code does not prescribe that only one page

2 S. C. C, Aog. JJ, 1840 (Cott. « Regulae S, R. R., Aug. 4» xpxo,

P, P., n. 9x1). I 7 CA. Ap. S., II, 78s).

4S. C. C, Aug. aa, 1840 (/. eX

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of the sheet be written on, but we have become accus-
tomed to use only one page. T)rpewriting is not excluded,
but special ink should be used at least for important

If the judicial acts have to be signed by the parties
to the trial and by the witnesses, and these are either un-
able or unwilling to sign — they cannot be compelled to do
so — this fact must be set down by the secretary or clerk
in the minutes, and the record thereof accompanied by the
testimony of the judge and the acting clerk that the acts
were read to the respective parties or witnesses, and that
they were either unable or unwilling to sign them (can.


The acts taken down and signed in the first instance
or stage of a trial may be required for the court of appeal.
In that case the original papers should remain with the
court of the first instance and copies forwarded to the
court of appeal. Each copy must be bound so as to form
a booklet and contain a list of the minutes and records,
and of all other documents, together with the attestation
of the secretary, or clerk, or chancellor, that the copy
is a faithful and complete transcript of the original text.
If copies cannot be made without great inconvenience, the
original text may be sent to the court of appeals, provided
there is no danger that they be lost, abused, or dam-
aged, or fall into strange hands. We hardly believe that
a carbon duplicate, provided with the necessary signature,
or a photographic reproduction with the signature in
handwriting (no rubber stamp!) would be refused. If
the acts are written in the vernacular (for instance, Eng-
lish) and have to be sent to a court (for instance, at Rome,
where this language is unknown, or at least not officially
acknowledged) they must be translated into Latin and the
faithfulness of the translation guaranteed.

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CANONS 1643-1645 93

Acts not composed in the proper form and style may
be refused by the higher judge, and the official through
whose negligence this has happened, is bound to have
them redrawn and forwarded at his own expense (can.


Form refers to the condition of the sheets and the

Character may signify style, hence the expression
" stylus curiae/' the style peculiar to judicial acts. The
term " character " may also refer to the legibility of the
acts and their arrangement; or to the language, which,
as a rule, should be Latin, although if it is customary
in a country to employ the vernacular, this fact would be
a sufficient reason for composing the acts in that lan-
gti^e. It sometimes requires an expert in both languages
to translate certain terms into a dead language, and courts
are not precisely intended for stylistic and linguistic

Here it may be added that a wise rule of the S. R. Rota
prescribes that the written defence should not comprise
more than twenty printed quarto pages, and the answers
not more than ten pages of the same size.'

After the trial is finished, such documents as testi-
monials, deeds, letters of appointment, certificates, etc.,
which were required in court, must be restored to their
owners. Only if the judge should deem it necessary to
retain the one or other such document in a criminal case,
may he keep it. But the documents which remain with
the court (for instance, the charges and counter-charges,
the depositions of witnesses, the defence, etc.) should be
deposited in the diocesan archives, either the public or the
secret archives — the latter in criminal and some secret
marriage cases. The notaries, secretaries, and chan-

6 L^x propria, June 29, 1918; can. 29, § x (A. Ap. S., I, 97)-

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cellors * are not allowed to give out copies of any judicial
acts or documents which have been acquired by reason
of trials without a commission by the judge.

Anonymous letters which have little or no bearing on
the merits of the case, and manifestly slanderous letters,
though signed by their authors, must be destroyed.

• What Archbishop (then Pro- an adequate distinction be drawn

lessor) Messmer wrote somie twen- from the Code. Hence a chancellor

t7-three years ago iC^nonical Pro- may act as notary and secretary,

cedure, x897> p. 58) it still tnse: provided he can fill the office and ia

These different terms are "con- not otherwise employed in the same

fotmdedly confused"; neither can case; see can. 37a.

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In each and every trial or case there is one who com-
plains and one who is complained against, one who ac-^ ^
cuses and one who is accused. The accuser may be the
judge himself, who, in certain criminal cases, must pro-
ceed ex officio.^ Yet even in this instance he must have at
least some knowledge of the case, gained from one source
or another.

After setting forth the office of the judge and his duties,,
and outlining in general terms the mode and method of
procedure, the Code now turns to the parties involved^
in a trial.

who may be plaintiff or defendant

Can. 1646

Quilibet potest in iudicio agere, nisi a sacris canon!*
bus prohibeatur; reus autem legitime conventus
respondere debet

Can. 1647

Licet actor vel reus conventus procuratorem vel
advocatum constituent, semper tamen tenetur in

1 Criminal action proper is reserved to the fiscal promoter; can. 1934.


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iudido ipsemet adesse ad praescriptum iuris vel

First, the general rule is laid down that any one not
prevented by the Canon Law may be plaintiff. This is a
natural and inalienable right which can be to some extent
limited or taken away only by way of a judicial penalty.

The terms used to designate the plaintiff are actor, agere
in iudicio, habere personam standi in iudicio,^ from which
it may be seen how intimately this right is connected with
^e personal rights of man. Nor is it surprising that the
£oman Law, which refused to acknowledge slaves as
persons, should deny them the right of being plaintiffs,
except in a very few cases of later date. Christianity
^ows no slaves in the Roman sense of the word. How-
«cver^ the exercise of personal rights supposes certain
necessary personal faculties, of reason and will. There-
ffore the law provides for cases which concern persons
•not fully developed. Besides, some kind^of a dependent
>will nrast be acknowledged in religious and moral per-
iions or corporations which have a corporate will. Lastly,
tthe law may, as stated, deprive certain delinquents of the
right of acting as plaintiffs; as defendants all must be
admitted, and all must answer when called to a trial, or
sued, or accused, as otherwise criminals might profit by
their malice.*

The question arises whether plaintiff and defendant,
when duly and personally summoned, must appear per-
sondtty before the judge. The answer is given in can.
}i6f7, according to a Decretal * of Boniface VIII, but in
a more extended form. Plaintiff and defendant may
^present their case by proxy or through advocates (law-

sThis tenn might be rendered 4 C. i» X, 6*, U, i, wUch meti-

1»r righi to prosecute, tionk only delegated judges.

«Cfr. c. 7, X, II, i; c. ii, X,

v. I.

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CANONS i64»-i6si 97

yersj unless the law — which here means first and above
all, the common law, then also a particular law which does
not contradict the common law — or the judge demand
their personal presence. The supreme judge, i. /., the
Pope may give the power to summon the parties perspn-
ally in his letter of* del^ation in criminal cases. But
even in civil cases the judge who acts by virtue of his
office may demand the personal appearance of either plain-
tiff or defendant, for instance, to test his mental capacity
or character, or whenever the iuramentum calumniae is
to be administered.'


Can. 1648

§ I. Pro minoribus et iis qui rationis usu destitute
sunt, agere et respondere tenentur eorum parentes aut
tutores vcl curatores.

§2. Si iudex existimet ipsorum iura esse in con-
flictu ciun iuribus parentum vel tutonim vel curatorum^
aut ipsos tarn longe distare a parentibus aut tutoribus
vel curatoribus, ut hisce uti aut minime aut difficulter
liceaty tunc stent in iudicio per curatorem a iudice

§ 3. Sed in causis spiritualibus et cum spiritualibus
connexis, si minores usum rationis assecuti sint» agere
et res^ndere queunt sine patris vel tutoris consensu;
et quidem, si aetatem quatuordecim annorum
expleverint, etiam per seipsos; secus per tutorem ab
Ordinario datum, vel etiam per procuratorem a se»
Ordinarii auctoritate, constitutum.

B Santi-Leitner, II» x, n. 19.

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Can. 1649

Nomine eorum de quibus in can. 100, §3, stat in
iudicio rector vel administrator, firmo praescripto can.
1653; in conflictu vero eorum iurium cum iuribus
rectoris vel administratoris, procurator ab Ordinario

Can. 1650

Bonis interdicti, et ii qui minus firmae mentis sunt,
stare in iudicio per se ipsi possunt tantmnmodo ut de
propriis delictis respondeant, aut ad praescriptum
iudicis : in ceteris agere et respondere debent per suos

Can. 165 1

§ I. Ut curator ab auctoritate civili alicui datus
a iudice ecclesiastico admittatur, debet accedere con-
sensus Ordinarii proprii illius cui datus est

§2. Ordinarius potest quoque aliimi curatorem
constituere pro foro ecclesiastico, si, omnibus mature
perpensis, id statuendum esse prudenter censuerit.

To act personally at trials requires a normally de-
veloped mind and will. Personal rights cannot properly
be exercised by infants or minors who lack judgment,
and, consequently, to secure them from hurting them-
selves by improvident acts, not only the ecclesiastical,
but the civil courts also, give them guardians.® Like unto
infants are those adults who lack either the actual or the
habitual use of reason. Therefore can. 1648 rules that
for minors and those adults who lack the use of reason,
parents or guardians are obliged to act as plaintiffs or de-

« Blackftone-Cooler, Comment,, 1, 464.

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CANONS 164&-1651 99

The text sajs: ^amt iuiores out atraiares.'* These
two terms are cxMnprised by the one English tenn guards
ions, ahhoagfa the RcMnan as well as ecclesiastical law
draw a distinction between tutores, who are given *to
impuberes, and curatores, who are appointed for those
who have readied puberty, but have not yet conq>leted
the age of twenty-one.' Also note the term " teneniur**;
parents or guardians have the same obligation as the
plaintiff or defendant hin^df , according to can. 1647.

However, it may be that parents or tutors have per*
sonal interests ' of thdr own involved in a trial, and that
Aese interests dash with the rights of the children or
mentally incapacitated wards. In that case the judge
should appoint a guardian. The same rule applies if the
parents or guardians live so far away from the residence
of thdr children or wards that they can not be present
at the trial or can attend only with great difficulty. At-
tendance would be difficult if the distance were great or
travelling inconvenient or expensive, or if there weie
danger of seriously delaying the trial.

The ecdesiasticsJ law naturally favors spiritual matters,
and matters dosely connected with these, for instance^
the Sacraments, iuspatronatus and benefidary cases, pious
lQ[ades, etc. In all such cases minors who have at-
tained the use of reason may act as plaintiffs or defendants
without the consent of thdr parents or guardians; and
after completing the age of fourteen, they may act by
themselves without a procurator. But before they have
completed the fourteenth year of age, minors, or rather

7 The fuior had charge of the of the estate (BIackstone-Co<dcr»

maintenance and education of the L c„ I, 460).
minor; the curator had the care of 8 This may easily happen if tiie

hit fortune; or in English law terms: religion of the minor is at varianoe"

the tutor was the committee of the with that of the tutors, and these

person, the cur^ior the committee are bigots.

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impuberes, must be represented at trials by a g^rdian
appointed by the Ordinary, or by a procurator whom they
have chosen with the approval of the Ordinary. Thus
disputed engagements of minors may be answered in court
by the parties themselves if • they are over fourteen, and
this holds not only for young men, but also for girls, be-
cause the text does not discriminate as to sex.

Can. lOO, § 3, compares tnoral or artificial persons,
whether corporate or non-corporate, with minors. If such
are called to judgment, their rector or administrator must
represent them (can. 1653). But if the rector or ad-
ministrator has a special interest in the trial, which might
clash with the interests or rights of the corporation or
juridical entity which he represents, a procurator must
be appointed for said juridical persons.

Can. 1650 considers the case of prodigals (bonis inter-
dicti) and weak-minded persons. We say prodigals, be-
cause the Roman law put spendthrifts, who were supposed
io be incapable of managing their own affairs, under
guardianship.^® The reason for this is to be sought partly
in the abnormal mental condition which shows itself in
one who squanders his property, and partly in the fact
that such a person may not be able to defray the expenses
of a trial. The aforesaid persons, then, need appear
personally only in criminal cases or when the judge de-
mands their personal presence, which he may, even in civil
cases, as explained under can. 1647. Otherwise their
curators may appear for them.

If curators have been appointed by the civil authority,
must the ecclesiastical judge admit them? Yes, answers

♦ C. 14, X, II, 13; c. .1, 6', II, I. restraint from executinff deeds im-

10 L. I, Dig. 27, 10: "Lege XII posed on persons of weak mind;

tabularum prodigo interdicitur bono- Stimson's Law Dictionary, 1911^

rum suorum administratio.** In s. v. " Interdict."
Scotch law, interdict means a legal

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CANON 1652 loi

can. 1651, provided the Ordinary of the ward to whom the
civil authority has given a curator, consents. But the
same Ordinary may, if he deems prudent, appoint another

Note that in canons 1648, § 3, 1649, 165 1 the apposition
loci is omitted, and hence, according to can. 198, the
superiors of clerical exempt institutes are also competent.

reugious as plaintiffs
Can. 1652

Religiosi sine Superiorum consensu non habent
personam standi in iudido, nisi in casibus qui

I."" Si de vindicandis adversus religionem iuribus
sibi ex professione quaesitis agatur;

2.'' Si ipsi extra claustra legitime morentur et
iurium suorum tuitio urgeat;

3.° Si contra ipsum Superiorem denuntiation^ni
instituere velint

Since religious have abdicated the habitual or actual
right of holding property — which is the cause of most
l^al quarrels — and transferred it to the monastery, and
since, besides, they depend on the will of their superiors,
it follows that, to prosecute their rights as individual
religious, they need the consent of their superiors}^ But
there are a number of exceptions, which the Code reduces
to three, to wit:

I.* When a religious wishes to prosecute rights which
he has acquired by reason of his religious profession,
against the institute to which he belongs, he may proceed
without the superior's permission. Thus if a sentence

ilCfr. c. XI, C. 12, q, i; c. 35, C. 16, q. 2; c. 7, X, I, 31; c. 6,
X, III, 35.

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of dismisal or expulsion was inflicted, and the religious
believes he has just reason to complain against the same,
he may bring the case before the superior (provincial or
abbot) and also appeal to the higher court (general or
abbot president) ; he may do this also in case he was de-
prived of the right of voting (active or passive)."

2. If a religious lawfully dwells outside the enclosure
and is compelled to defend his rights, he may proceed
to do so without the superior's permission. Thus a re-
ligious who, by reason of his studies (see can. 606, § 2),
is absent from his monastery, is lawfully absent, and may
defend his rights in the ecclesiastical and civil courts
according to can. 120; a religious who is rector of a
church, or administrator of a pious foundation, or chaplain
tt an institution, may defend his case, because his office
involves the right of defence, and the permission of his
superior is included in the appointment to office.**

3. Finally, individual religious may denounce their own
superiors and prosecute the case at the expense of the
monastery. The sources from which our text is taken "
mention in a general way the right of accusing superiors
who commit crimes, but the second text has in view espe-
cially the reformation of monasteries. A criminal charge
is never or rarely to be brought against superiors ; rather,
as our text says, should denunciation be made to the next
higher superior, who shall decide what course is to be

itt Cfr. c. 22, X, I, 3; Santi- crimes* not of mere tranagressiont,

X<ettner» 11, i, n. 17. for inttance, of a rubric wluck

18 C. 16, X» II, x; c I, Qem. perhaps camiot be carried out on

I, 2; Reiffenstuel, 11, z, n. 167. account of circumstances and ad-

:i4Cc. II, 26, X, V, I. mits a common-sense interpreta-

16 Wemz, /. c, V, n. 166. Be- tion, nor of every transgression of

«ides, it must be understood of a minor ecclesiastical law.

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CANON 1653 103

ordinaries and corporations
Can. 1653

§ I. Ordinarii locorum possunt nomine ecclesiae
cathedralis aut mensae episcopalis stare in iudicio; 8ed»
lit lidte agant, debent audire Capitulum cathedrale vel
Consilium administrationis eonimve consensum vel
consilium habere, quando periciilo vertitur pecuniae
summa pro qua alienanda ad normam can. 1533, § §
a, 3 eorundum consensus vel consilium requiritur.

§2. Beneficiarii omnes nomine beneficii possunt in
iudicio agere aut respondere; quod tamen ut licite
facianty servare debent praescriptum can. 1536.

§ 3. Praelati ac Superiores Capitulorum, sodalitatum
et quorumlibet coUegiorum stare in iudicio nequeunt,
nomine suae cuiusque communitatis, sine eiusdem
consensu ad normam statutorum. .

§4* Adversus eos de quibus in §§ i-3» si sine
praescripto consensu aut consilio in iudicio egerint,
piae causae aut communitati ius est ad refectionem

§ 5* In casu vero defectus vel negligentiae illius qui
administratoris munere fungitur, potest ipse loci
Ordinarius per se vel per alium stare in iudicio nomine
personarum moralium quae sub eius iurisdictione sunt.

§ 6. Superiores religiosi nequeunt nomine suae com-
munitatis stare in iudicio, nisi ad normam constitu-

The right of standi in judicio by reason of administra-
tion, is a limited right because, like that of alienation, it
is liable to restrictions or formalities set up by the law.

I. Local Ordinaries may prosecute for the rights at-
tached to the cathedral church or to the mensa episcopalis.

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But in order to act lawfully (licite) they must have the
consent or advice of the chapter (diocesan consultors) or
the board of administrators (according to can. 1532, § 2, 3
on alienation).

2. Beneficiaries (which name certainly comprises our
pastors) may act as plaintiffs or defendants in the prose-
cution of beneficiary rights, but for so doing they need
the written consent of the local Ordinary, or, in urgent
cases, that of the rural dean, according to can. 1526.

3. Prelates and superiors of chapters, sodalities, and
collegiate bodies cannot go to court in the name of their
communities without the consent of the latter, as required
by their statutes. The statutes may distinguish between
the revenues, or property proper to the prelate or superior,
or at least subject to his personal and exclusive adminis-
tration, and goods which the prelate or superior adminis-
ters in the name of the community. For these latter
rights the superior needs the consent or advice of his
chapter or council according to the rules laid down in the
constitution or bylaws. Concerning the goods or prop-
erty which the superior administers in his own name. He
IS not tied to the consent or advice of chapter or council.**
However, in religious communities with solemn vows,
this distinction has little weight, except in orders where
the peculium still exists.

§ 6, therefore, simply rules that reli^ous superiors of
male and female organizations cannot go to court in the
name of their community except in so far as their con-
stitutions permit.

4. Those persons mentioned under nn. 1-3, if they go
to court without the prescribed consent or advice, are

16 Cfr. c. 21, X, I, 3; c. x6; X, there is no distinction between the
II, i; Reiffenstuel, II, i» n. 170 ff. mensa abbatis wid the mensa com'

Online LibraryCharles Augustine BachofenA commentary on the new Code of the canon law → online text (page 7 of 31)