The purpose of this article is to give a comprehensive view of the positive legislation of the Church on appeals belonging to the ecclesiastical forum ; but it does not treat of the nature of the ecclesiastical forum itself nor of the rights of the Church and its supreme head, the pope, to receive appeals in ecclesiastical matters. For these and other similar questions see POPE, PRIMACY, COUNCILS, GALLICANISM, ECCLESIASTICAL FORUM.
An appeal is "a legal application to a higher authority for redress against an injury sustained through the act of a lower authority." The Lower authority is called judex a quo (judge appellee); the higher authority, judex ad quem (appellate judge or court). Appeals are judicial and extrajudicial. A judicial appeal is one made against such acts as are performed by the lower authority, acting in the official capacity of judge at any stage of the judicial proceedings. Hence a judicial appeal is not only one taken from a final sentence, but such is also an appeal taken from an interlocutory sentence, viz, from a sentence given by the judge before pronouncing the final judgment. An extrajudicial appeal is one made against acts performed by the inferior authority when not acting as judge, such as for instance a bishop's order to build a school, the election of a candidate to an office, and the like. Every appeal, when admissible, has an effect called devolutive ( appellatio in devolutivo ), consisting in this, that through the law there devolves on the appellate judge the right to take cognizance of, and also to decide, the case in question. Appeals have often also a suspensive effect, which consists in suspending the legal force of a judgment or an order so that the judge appellee is prevented from taking any further action in the case unless his action tends to favour the appellant in the exercise of his right of appeal.
The right of appeal is founded on the law of nature, which requires that a subject, bound as he is to abide by the action of a superior liable to err, should be supplied with some means of defence in case the latter, through ignorance or malice, should violate the laws of justice.
Accordingly, the sacred canons as early as the first œcumenical council allow clerics who believe themselves to have been wronged by their bishops to have recourse to higher authorities (Council of Nice, 325, can. 5). In the same century and in the following centuries the same right is insisted upon in other councils, both local and universal. In the East mention of it is made in the councils of Antioch (341, c. 6, 11), and Chalcedon (451, can. 9). In the West it is met with in the councils of Carthage (390, can. 8; 397, can. 10; and 398, can. 66), Mileve (can. 22), Vannes (465, can. 9), Viseu (442), Orléans (538, can. 20). According to these canons the court of appeal was that of the neighbouring bishops of the provincial synod ; and there is mention of the metropolitan with the other bishops in documents of the eighth and ninth centuries (VIII (Œcumenical Council, 868, c. 26; Council of Frankfort, 794). But as the provincial councils came to be held less frequently, the right of receiving appeals from any bishop of a province remained with the metropolitan alone; a practice which was repeatedly sanctioned in the Decretals (c. 11, X, De off. ord., I, 31; c. 66, X, de appell., II, 28), and has never since been abandoned. Though the right of appeal was never denied, it had to be kept within the proper bounds in order that what was allowed as a means of just defence should not be used for evading or putting obstacles to the administration of justice.
In this, canonical legislation followed several of the rules laid down in the Roman civil law (Corpus Juris Civilis), e.g. those prescribing the limits of the time available for entering an appeal (Nov. 23, C. 1; c. 32, X, De elect., I, 6), or finishing the case appealed (1, 5, Dc temporibus . . . appellationum, c. VII, 63). The same is true of laws excluding certain appeals which are rightly presumed to be made for no other reason than in order to retard the execution of a sentence justly pronounced (1, un. C. Ne liceat in unâ eâdemque causâ, VII, 70; c. 65, X, De appell., II, 28).
In several points, however, the sacred canons were less rigorous, either by leaving more to the discretion of the judge appellee in cases of laws intended for his benefit or interpreting more liberally laws imposing strictures on the appellant in the exercise of his right (c. 2, De appell. Clem., II, 12; 1, 24, c. De appell., VII, 62; 1, un D. De libellis dimissoriis, XLIX, 6). Moreover, if abuses crept in, they were checked by the sacred canons, as appears from the enactments of popes and councils of the twelfth and thirteenth centuries, embodied in the authentic collections of the "Corpus Juris Canonici", in the title "De appellationibus". Thus we see, in 1181, the Third Lateran Council (c. 26, X, De appell., II, 28) forbidding subjects to appeal from ecclesiastical discipline, and at the same time preventing bishops and other prelates from taking undue measures against their subjects when the latter were about to use their right of appeal. Again, in 1215, we see the Fourth Lateran Council (c. 13, De off. ord., I, 31) insisting that appeal should not interfere with bishops while taking legal action for correcting or reforming morals.
These and other similar wise regulations were enforced again by the Council of Trent (Sess. 22, c. 7, De reform; c. 3, De appell., in 6). Especially did this council provide that the regular administration of a diocese should not suffer from appeals. Thus, besides forbidding (Sess. 22, c. 1, De ref.) that appeals should suspend the execution of orders given for the reformation of morals and correction of abuses, it mentioned explicitly several acts of pastoral administration which were not to be hampered by appeals (c. 5, Sess. 7, De ref.; c. 7, Sess. 21, De ref.; c. 18, Sess. 24, De ref.), and it ordained that appeals should not interfere with decrees made by a bishop while visiting his diocese (c. 10, Sess. 24, De ref.).
Moreover, in order to protect the authority of local ordinaries, it prescribed that if cases of appeals of a criminal nature had to be turned over to judges outside the Roman Curia by pontifical authority, they should be delegated to the metropolitan or to the nearest bishop (c. 2, Sess. 13, De ref.). Finally, this council provides that appeals should not cause unnecessary delays in the course of a trial, where it forbade (as the Roman law had done) appeals from interlocutory sentences, admitting only a few necessary exceptions (c. I, Sess. 13, De ref.; c. 20, Sess. 24, De ref.). The decrees of the Council of Trent and other pontifical laws framed for the purpose of reconciling freedom of appeal with the prompt exercise of episcopal jurisdiction in matters admitting of no delay, were too important to be allowed to go into desuetude, and were embodied by Benedict XIV in his constitution "Ad militantis", 30 March, 1742.
After this brief reference to the main sources of the laws concerning ecclesiastical appeals — the "Corpus Juris Canonici", the "Corpus Juris Civilis", the Council of Trent, the Const. "Ad militantis", it only remains to mention the Instruction of 11 June, 1880, sent to the Italian hierarchy by the Sacred Congregation of Bishops and Regulars, containing rules for a summary procedure (also in the matter of appeals) to be used by bishops in trying criminal cases. This same introduction with a few changes was sent a few years later by the Sacred Congregation of Propaganda to the hierarchy of the United States of North America. In the following paragraphs we shall refer to these two documents by calling them respectively Instr. Sacra , and Instr. Cum magnopere .
In cases not excepted in the preceding paragraphs the general rule is that judicial appeals, besides having the devolutive effect common to all appeals, have also a suspensive effect. Some authors hold the same principle with regard to extrajudicial appeals, and base their assertion on c. 10, De appell., in sexto (II, 15) and on c. 51, 52, X, De appell. (II, 28). Others deny that an extrajudicial appeal, as such, has a suspensive effect, because it is not an appeal properly so called, but they hold that it has this effect as a provocatio ad causam (a legal application for a cause or suit). Hence extrajudicial appeal has this suspensive effect only while the cause or suit is pending, that is, from the time when the appellate judge admits the appeal and begins to examine the case ( Ut lite pendente nihil innovetur , Decretals of Gregory IX, Book II, tit. 16). But neither judicial nor extrajudicial appeals have a suspensive effect in cases expressly excepted by the law. Accordingly: —
With regard to this document the following points are worthy of notice:
Thus it has been authoritatively declared that if a bishop, whether in performing his diocesan visitation or in taking measures for correcting morals at any other time, proceeds against a cleric judicially, the appeals from such judicial acts have a suspensive effect [ Decrees of Clement VIII, 16 October, 1600, n. viii; Sacred Congreg. of the Council, reported by Pallottini (Collectio Decretorum S. C. C. vol. LI, Appellatie, § I, nn. 98 sq.)]. Besides these universal laws there may be particular enactments forbidding, with the sanction of the Holy See, suspensive appeals (Third Plenary Council of Baltimore, n. 286).4. The Appellate Judge
According to this rule:
For entering an appeal the peremptory term of ten days is allowed, after which term the appeal is not admitted. In judicial cases the ten days are counted from the time when the sentence was pronounced, if the party was there present, or from the moment when the party knew of it, if the sentence was passed in his absence. The Instr. Sacra and Cum magnopere count the ten days from the moment when an official written notification of the sentence was given to the party. In extrajudicial cases the ten days begin from the time when the appellant becomes aware of the wrong done to him.B. Manner
In these instructions no mention is made of the Apostoli , or letters containing the certificate of appeal. Hence the appellant is not required to ask for them, and consequently there can be no question of the peremptory term of thirty days available for demanding them, nor of the next peremptory term for presenting them. On the other hand, in keeping with the same instructions, the appellate judge, having received the acts and taken cognizance of the appeal, has to notify the appellant that within twenty days (according to the Instr. Sacra , art. 40). or thirty days (according to the Instr. Cum magn ., art. 39) he must appoint his counsel, to be approved by the same appellate judge; and this term is peremptory, so that if the appellant does not make the said appointment in time the appellate judge will formally pronounce the right of appeal to be forfeited.C. Judgment on the admissibility of the appeal
The appellate judge, on receiving the said documents, must, before trying the case, examine whether the appeal is legitimate; hence he should make sure:
Once the appellate judge has ascertained that the appellant has legitimately appealed, and that the appeal is not one of those that have only a devolutive effect, he has the right to send to the judge appellee letters called inhibitory, forbidding him to take further action in the case.E. Attentates
Finally, it is the duty of the appellate judge to reverse what are called attentates ( attentata ), if there are any; by which term is meant whatever (in the case of an appeal having a suspensive effect) the judge appellee may have done prejudicial to the appeal during the time when his jurisdiction was suspended.F. Withdrawal of the appeal
Prior to the time when the appellate court begins to try the case, the appellant is allowed by the law to withdraw his appeal, even if the appellee does not consent. Once, however, the appellate court has begun to try the case, the appellant is no longer free to renounce his appeal unless the appellee agrees to it.G. Judgment of the case on appeal
The appellant having done what is required on his part for introducing his appeal, the appellate judge allows him a fixed time for presenting whatever he wishes to allege in his own favour, and at the same time notifies the appellee of the admission of the appeal and of the term granted to the appellant. In this trial the law does not allow new actions, that is, claims which are different from the main point at issue in the first instance and which would rather constitute a new controversy not yet tried by the judge appellee. In an appeal from a final or quasi-final sentence the judge is allowed to admit new evidence, whether to prove what was already alleged but not sufficiently proved, or to prove a new allegation, provided this has a close bearing on the main point at issue in the first trial and is not equivalent to a new action; the same right should be granted to the appellee in his reply. In an appeal from a purely interlocutory sentence new evidence is not allowed, and the court in forming its decision must confine itself to the evidence deduced from the acts of the first trial. The formalities to be observed in the trial of the case on appeal do not differ from those of the first instance. The case ought to be tried and finished within one year from the time when the appeal was interposed, or within two years where there is sufficient cause for delay. If the appellant through his own fault does not prosecute his appeal during this time he will be considered as having abandoned his appeal. This time fixed by law cannot be shortened by the appellate court except for some reason of common good, nor can it be extended except with the consent of both parties. The sentence by which the second instance is ended must contain a declaration as to the justice or injustice of the previous judgment, by which declaration that judgment is confirmed or reversed.6. Appeals to the Roman Congregation s
In appeals to the Roman Congregations , substantially the same rules are observed. Within the peremptory term of ten days the appellant must interpose his appeal before the judge appellee, who will immediately send the acts of the process to the Congregation. Before the case is discussed in the Congregation, a judge-referee (ordinarily one of the cardinals ) is appointed, whose duty is to report the case to the Congregation for decision. He fixes the day when the Congregation will consider and decide the case. Before this day comes, the judge-referee and the cardinals receive a summary of the acts of the whole case together with the written defences prepared by the lawyers or procurators of the parties. These lawyers and procurators are also allowed to explain by word of mouth their written information. At the appointed day the case is proposed to the Congregation, and decided by it, after the cardinals have heard the report of the judge-referee. The decision has the force of a judicial sentence. Against it there is no true appeal; but the Congregation grants another means of redress called beneficium novœ audientiœ (the benefit of a new hearing). Should, however, the Congregation add to its decision the words et amplius (a clause meaning that the case should not be presented again), it is more difficult to obtain a new hearing, which is granted only for new and very strong reasons. Finally, when the time within which the petition for a new hearing must be presented has elapsed without the petition having been made, or when a new hearing is not granted, the Congregation, on request made by the parties, will forward to them a rescript containing an official communication of the sentence. Cases are sometimes tried in the Roman Curia in a simpler form ( œconomica ). This is done for the sake of the parties, whose expenses are thus reduced, since in this kind of process they are not required to have lawyers, but whatever can be alleged in support of their rights is brought to the notice of the cardinals in a report officially drawn up, and to this report, in more important cases, is added the opinion of two consultors of the Congregation.7. Means of redress available where appeals are not admitted A. Querela nullitatis (Complaint of nullity)
Against a sentence which is invalid the legal remedy is not appeal, which is made only against an unjust sentence, but the complaint of nullity. This complaint of nullity differs from the appeal in the following points:
When one has failed to lodge an appeal within the time prescribed, and this has happened because it was impossible for him to act, the law grants what is called restitutio in integrum . This restitutio is, in general, that remedy by means of which one who has suffered damage, because prevented from acting, is reinstated by a judge in the condition in which he was before the damage took place. (See Commentators on the Decretals, Book I, title 41.)C. Recursus (Recourse)
In all cases when appeals are forbidden, one can make use of the remedy called recursus , which, strictly speaking, is an act by which one petitions the Holy See to grant him redress in a case in which the law does not recognize the right of appeal. This recourse differs from an appeal in the following points:
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