an) Ra i ’ : ee aM 3 % q i) | i j i ; Arai Pie Am we pth? NW, x MA or Te THE JUDICIARY DEPARTMENT \ OF THE DIOCESAN CURIA | A DISSERTATION SUBMITTED TO THE FACULTY OF THE SCHOOL OF CANON LAW OF THE CATHOLIC UNIVERSITY OF AMERICA IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF CANON LAW. | BY Y, HENRY FRANCIS DUGAN, M.A., J.C. L., Priest of the Diocese of Indianapolis. THE CATHOLIC UNIVERSITY OF AMERICA WASHINGTON, D.C. 1925 eane Nihil Obstat. THOMAS J. SHAHAN, Censor Deputatus. ~Washingtonii, D. C., die XXIV Aprilis, 1925. Imprimatur. MICHAEL J. CURLEY, Archiepiscopus Baltimorensis. Baltimorae, die XXXIV Aprilis, 1925. TABLE OF CONTENTS —___—. PAGE Pre ee Serra MRR ORT d Ghar Titalial aru) g, WAL an Le GEMM Paint kt val ep VO ad far a, “6'e 5 CHAPTER I. DEFINITION OF THE THESIS. TUCO ERO Penta SET ONC Sa NG Siely wus Laine a ta ad alate al bila! ah bat A 7 DORM eey We Sane iste ayer chal a olde alwtiaboh's, 4.8 ARNE REGED ORO (ARI aM AR EU SR 7 SANG OLURIE: CGO LU att Mola \ grat d yeaa eevee atdaale Win mpsiaisvacd avaaeidlae 6 8 WGGICINEY (ROWOL™ I CHG) OULIB yee ois ele Fie, eo Odie Mit ele © 10 DPA VABHOIT OF eS UPISOICULOTIS weit Hoke olive: ol shee tdlals fasts, Cle ee tere Glee le 11 Meaning and Purpose of the Judicial Power............... 12 Executive, Legislative and Judicial Power Compared..... 12, 13 Importance: of the. Judicial Power. oe Fed onsen eo tyes 14 Vergonnel of the Didcesan Cnriay i320 ee ee kee de ceca ol cl ale 14 CHAPTER II. IMPORTANT OFFICERS IN THE EARLY CURIA. CALE MIy Ye COOM ELOY el crd a et old wal cieei ai Reds wie eat dvetalalne Weg, a MP Yl ae 17 THE ARCHDEACON. aeY RELMITEL A TCUEORCOIY foo: 2 ita tale en Gide ePeed eda! oily her ha pe tla tas wal oid 18 Legislation Concerning the Archdeacon.................... 19 ECAR COTIPEE LG Ne (EPEAT Sse) wp) aheCenal’e dha taste! Malte) me shea iw wlaele rah whe 20 POUTMIES 67 CO DINO sek uGiE s: euhincd Hal ataye Mites whale nay x abate! &, wel 21 Wernzsand: Fournier, Compared s is eisai sededi. iaalahbaidd css 22 THE VICAR GENERAL. Reason for the Appointment of a Vicar General............ 23 Appointment to come from the Bishop.................... 23 RU OL A DOULEPEOO. Sins Chi alvin e cle ae wil. wisi els alc cleni ime Sih ieee 24 The Number of Vicars General in a Diocese............... 25 BVOCUR UG) SIA TICREROTIA SLi CASA cikjltniy ola ch shejat hide) g a tobe eas ote aie 25 The Power oO1) a Vicars in & | Digcesaics aces dine Kididlh s Md Vin ties 26 Pade ELOISE) COLE TOWEL cto cit sis aint ucastig Gidieria nw) ete atch iatay alate 27 OGM A RUGA GIN \ SPGCIRlOs ; 4 (4 vials herald we adalat Moatel dared ia ae 28 The Right to Recognition as a Prelate.................... 29 ney mxpiravion: oF the Ollite is ithe nile. id pat oaiey Coke io, 30 CHAPTER III. THE OFFICIALIS. PRON TER CAINE WS fol a sie: Bina Maa wie 4 alta «lath alle alain auMbalatd a alba Katad atau yea’ all 32 PASERADE NY.) cs es) Ge ata ard ek eal a ie acobala ® w lu avabelacahetas suet @ 32 Pretor, the ndexein “Romath (aw), 4 siits, tases aie aalaieebds cide 32 The Legislative and Judicial Power in Apostolic Times...... 33 PETER ACAVILTECE AS she rs Se ee hye ee Sa As AUR ie SS 34 The Judge in Justinian and Canon Law................... 35 PHOT Oia ie ITT CNG) COG) .::), kala hla ee ee late Gis aed cata halt 36 Nature and Extent of the Power of the Officialis.......... 37 The Number of Officials in a Diocese.................2..08% 38 (JU TINCACTONAG TOR) tHIS POSIEIOIE i oud cs cle ee le a Ohd weslha ae a abe 39 TOO VAIL EOP RN TS: COR LIU Lia cea lcba w Mabe uae Wig ay Neca alive, Wik 39 SYNODAL AND PRo-SYNODAL JUDGES. PCR LOPS eee, a GE Hee StU ee Lee Rn Heo aoe ack 40 PLU USTCCREL RARER NCL hth cite Rett A teem EE Ont ner eR 42 CTRL TEC ETC E eee AME TAD ME ASLAM AR VakUB Poti s ie a wierd a ed alates sed, et 42 Election, Substitution, Removal of Judges................. 43 CIGReATION Ongena: CNCR. deem! lt, aul uk aly acute G Vieille Walalata wg 43 Vompared) with: the: Oficialigye si See. CER yn ue Goa waked 44 + Table of Contents. PAGE Hield of Action for ‘the (Synodal. Wudgea : 6 Lea e s ea 44 Collegiate.) Tribunalay ok Uk Sate oue wew ewes Oe tenets A Khe ane 44 Collegiate Tribunals required by the Code................. 45 ASSESSORS. Controversies Involving) Religions c. 7 o. u eee 48 CAUSES IN ECCLESIASTICAL TRIBUNALS. AUDITORS AND RELATORS. Auditors In Generah ii ee Us ee 50 ELEREOEY seis hey hk) MUN Aa TAR alas AIM ie lg 51 En thie Coda fk i aha ee a AU al ee 52 Hligible dor {thie Ode ..0i, avs Bb se aA i bell Danie b>. abe Raa Ren me Rene 52 Dutiesof the! Anditor sais Gauss sane acho ns ius neue ke Re 53 The Removal of an Auditor from Office.................... 54 The Relator in a Collegiate: Tribunal... 2.4 ...04.0. ewww 55 PHATE sie Sip thet ete, 6 SHR WER wT RUM le LE Jaca 9 a hal at ye ee 55 Canon Referring ‘to’ the; Rela tery. io Ole ll a ee 55 Method of Appointment—Removal................0cseceee 56 CRD NEO ee ees tS Bartana ene Maes Guin 5 Aaa tel cciig 9) erat rr 56 WOMPe bene Ul i i OER Le Cate CLUS Ac na a 56 Reason! for | Limitations, i) bea cs TRUE OR GL Sa ee 58 Ineampetence in Judges) ) 20. 2822 22a RRs Ae 59 THe: FORMAT 6 ha ey 0 Aedes Cid CE UD Ree ee a 69 Determining the Competent Forum....................... 61 Absolute : Competanoe, 4) 00 hs Us i oe ve 63 Relative Competence...) ioe. ei. lial le 63 The Competent: Forum in Outlinescii il. er eee en 64 CHAPTER IV. THE PROMOTOR OF JUSTICE AND THE DEFENDER OF THE Bonn. Crna VL GSB sayy ele ie dle wiahe a ei es aceeield ley ROI ALO ener ERITH §5 The Promotor, of Austere ys billy ik Ce ey teller ay RNC 65 AB LOT I ere dade aialaiatald aid al aly Rte TE GVAIE aa ee nae anne aE er 66 La i Mranee: and (Spain \0) 24's dasa naam ae IEE Se 67 EER VERA ia Valier vee id OeMIGT ED Ming 7 RCI Se PSOne, Mie Ean even, Ra ee ill 67 Thel Defender of the Bonds) eke Uae Oo Mette hc 68 He UT: 3. PUM Car a RP PUM) Cele RL APIO HOD Ce RERUNS ETH 68 PUT DOM AM clits niet alti me Cala ad ger ete al ERR e CARNART oo 9c ah an 68 The Defender in a Sacred Orders Trial.................... 69 Canonical Requisites for these Offices..................05 69 Presence required for the Validity of a Legal Process...... 69 Promotor and Defender in a Single Officer................. 70 Aare EMOTE a Rhee ORR 0) LPR CP UU RMR RS JAA EAR PART BO IRON Pe LE THE NOTARY. WEA Seep ee TMU a HEARN AU Ym EEO ale OK AMR AI AM Rts rs OIE? PS EB 7: CCLSRIAALIGAL NDCETROM es i UUM ats aN ba ln aie mae i te 73 INOUE Mes iy He Oded eri Cui ML RNC M In g/L al Mit Suma Nal 74 Phe: Appomtment) of) the! Notary ou du. ee 74 Duties tah ine MOLAR CoC Olan) yo Kui LI ul Yl nun eR 75 CURSORS AND APPARITORS. ELI BUOR YN STO NORM ALIN SUT SE aw eh UL RAL AU _16 Cireor aire) | Cen on sie wr Alacer. Um ale Blin iti dae ON alee 76 A CE RNA Ea ae FCG C=) ATL aU CQe Mee ADU at UES Ue Re HR ANAM tr 7 BA LTOGR AP Ey Uh ha A MN Mala OLAV IE eA CM Ah eM 78 AE eT ME ca Ue CARLO AR OM HEALS MUON AMM RIE Sk gh S1 8 NE RN ie ORE ES eG Lae A ola veri eiitwles valianig iatlate etala a he ie Nal BU let rb Wan ARR Ree PREFACE, The purpose of this dissertation is to present a study of the canons in the Code of Canon Law which have reference to the diocesan curia. This subject is a most practical one. In every diocese the ordinary must call to his assistance some of his priests. These priests form the curia of the bishop, or the diocesan curia. Through the power delegated to them by the bishop of the*diocese, they give their time and attention to the many duties which are assigned to them by reason of their appointment to membership in the curia. They serve to lighten the burdens which would otherwise weigh too heavily on the ordinary of the diocese. | But one section of the curia has been selected for con- sideration and development in this treatise, that is, the judiciary department. This subject is treated in the Code in the Fourth Book, Canon 1572 to Canon 1593. No attempt has been made to consider the wider ques- tion of judicial procedure. ‘The plan of the dissertation is to enumerate the list of officers who are to be found in the judicial department. A brief historical develop- ment of the office is then given and the law is quoted on such points as the power of the office under discussion, the method of appointment, and the removal from office. The writer wishes to express his gratitude to Dr. Filippo Bernardini, J.U.D., for the advice and assist- ance given him in the selection of the subject of this dissertation. He also expresses his appreciation of the criticism of the work when it was in preparation. The eratitude of the writer is due to Dr. Valentine Schaaf, 5) 6 Preface O.F.M., J.D.C., and to Dr. Louis Hubert Motry, S.T.D., J.C. D., for their interest in this work, for havy- ing carefully examined the copy of this monograph and for the very helpful suggestions. He expresses his thanks to Dr. Franceso Lardone, J.'U. D., the Professor of Ro- man Law, and to Professor de Olveira Lima, L. H. B., Professor of International Law. THE JUDICIARY DEPARTMENT OF THE DIOCESAN CURIA. CHAPTER I. DEFINITION OF THE THESIS. Diocese. The term diocese signifies the territory of the churches which are subject to the jurisdiction of a bishop. In its original meaning the word meant the management of a household. This is the significance of the Greek word from which this term is derived. In the course of time this word took on a broader meaning and was used to signify the management of a city. It was soon taken into the terminology of the Romans. The city was usually the residence of the bishop. The bishop was the leader of the faithful, the Shepherd of the flock. His duties were spread over the territory as- signed to him. He managed and ruled the diocese. As the juridical territory of the city and the territory man- aged by the bishop were usually conterminous, the term ‘“diocese’’ was soon taken into the ecclesiastical termin- ology. Hence the word was finally used to indicate the extent of territory under the supervision of a bishop.? Curia. ‘The curia is a collective body of officials whose duty it is to assist the ruler in the functions of govern- ment. The ruler selects the members of his curia and outlines the duties which they are to perform. Imperial Rome had its curia. It was made up of officers differing from each other in dignity and importance. Modern rulers have their specially chosen officers and secre- taries. The President of the United States has his Cabi- net. The members of the Cabinet are in charge of some particular branch of work in the government. They are placed in this position because they are expert in the 1 Cath. Encyc., art. Diocese. 8 The Judiciary Department of the Diocesan Curia. particular field of activity to which they are appointed, and in order to assist the president in the many duties which devolve upon him because of his position as head of our government. The Supreme Pontiff has a Curia and this curia is known as the Roman Curia.2 This body of officials in the Papal government is composed of Congregations, Tribunals, Offices and Commissions. The duties, rights and privileges of the members of the Curia are deter- mined by the Pope, or they are determined according to the principles of the law as stated in the Code of Canon Law.’ Just as the Supreme Pontiff has a Curia to assist him in the rule of the Universal Church, likewise the bishop has a number of officers whose duty it is to assist the bishop in the administration of the diocese. The nature and the size of the diocesan curia is to be deter- mined by the needs and the size of the diocese of each bishop. | History of the Curia. Maroto is of the opinion that there were no fixed or permanent offices, in the sense of a diocesan curia, until the Fourth Century. In the begin- ning the bishop had complete charge of his diocese. The clergy, the faithful and the possessions were under his direct rule.* If there was need of special help the bishop might have appointed a particular cleric to the duty. The office was discontinued when the work was com- pleted. With the progress of time the Church grew and flour- ished in accord with the plans of Her Divine Founder. She was no longer limited to a particular city or country. Her membership increased and likewise there were more priests to minister to the wants of the faithful. It was no longer possible for the bishop to give his personal attention to the many duties which came to him as head *Can. 242. * Can. 363. ‘ Institutiones Juris Can., Tom. 11, n. 760. The Judiciary Department of the Diocesan Curia. 9 of the diocese. Questions of doctrine and discipline, disputes to be settled, long journeys to be made in the interest of the Church made it necessary for the ruler of the diocese to call to his assistance competent priests. The curia is the result of a natural growth and evolution. The bishop formed the first. curia, sharing his jurisdic- tion to the extent necessary for this help. The bishop appointed the officer and consequently he had the right to discontinue the services of the officer, and abolish the office when there was no longer need of the service in question. | The mention of a few of the early diocesan officials will help in comparing the present curia with the curia of former times. The Archpriest held a very important position. He was selected to look after the interests of the priests of the diocese, when the bishop was absent from his diocese. He celebrated the Holy Sacrifice in the principal, or the Cathedral Church. The Archdeacon was selected by the bishop to assist in the administra- tion of the temporalities of the diocese. He was permit- — ted to conduct a visitation of the parishes. He investi- gated abuses and at times acted in the role of judge, set- tling disputes and punishing crimes... The Econom was known in the Western Church as the Vicedominus. He was charged with the temporal affairs of the diocese, such as land and property and he could dispose of these. The Advocates or the Defensores, were appointed to safeguard the rights of the Church before the courts. They defended ecclesiastical causes before the civil ma- gistrates. The Notaries were commissioned to present a written account of the ecclesiastical proceedings and to keep a record of all ecclesiastical documents such as let- ters of request, dispensations granted and other similar papers. The Archivist, the Chancellor and the Libra- rian were those officers whose duty it was to keep in or. der and to preserve all these documents. The official Interpreter or Expositor was assigned to the important duty of translating and explaining the text of Sacred Scripture to the faithful. The Catechists instructed the 10 The Judiciary Department of the Diocesan Curia. faithful in the rudiments of the Faith. The Grand Peni- tentiary acted in the capacity of the official confessor for the faithful. The Chanters or the Cantores were ap- pointed to render the approved chant of the Church at all liturgical functions. Besides these there were others of minor importance who assisted the bishop in looking after the affairs of the diocese. Laymen could have been chosen for some of the offices, such as the Advocates, but it seems that the more common practise was to appoint clerics. These various offices were not established at one and the same time. The offices were created and the appoint- ments made to the office in accord with the needs of the diocese. When it was necessary for the bishop to be absent from his diocese, the Archpriest was appointed to have charge of the clergy of the diocese. When the bishop was within his proper territory the burdens were many and these he shared with the priests whom he had honored by a call to the duties of the curia. It is to be noted, that the offices of the curia which have been men- tioned are somewhat different from the offices existing in the curia of the dioceses today. The reason for this is evident. The bishop instituted certain official posi- tions which were needed at a particular time. The need no longer existing, the bishop discontinued the service of the cleric when his services were no longer necessary to the bishop. With the same authority, the bishop made new appointments to answer new needs. This ac- counts for the change in the personnel of the curia. Changes in the future will be fewer, however, since the Code gives special consideration to the officers which should make up the diocesan curia of today.® The Judiciary Power in the Diocesan Curia. The members of the diocesan curia are dependent upon the bishop for the jurisdiction which they exercise as mem- bers of the official family. This jurisdiction varies in POHL. BRO LE Tite VLEET er LY | The Judiciary Department of the Diocesan Curia. 11 nature and extent. The bishop is limited in conferring of jurisdiction only when such limitations are clearly expressed in the Canons of the Code.° The jurisdiction of the vicar general and his relation to the bishop, the jurisdiction of the Official, or the Judge, in the curia of the bishop are points which are clearly defined in the Code. In such matters the bishop will follow the law as stated in the Code of Canon Law.’ Division of Jurisdiction. There are two kinds of ju- risdiction. Jurisdiction may be either voluntary or con- tentious.2 This distinction applies also to the jurisdic- tion delegated to the members of the bishop’s curia. The officers in the curia who act in virtue of the former are limited to such duties which are of a secretarial or ad- ministrative nature. This may include official corre- spondence such as Chancery notices or announcements which the bishop sends to his priests through the Chan- cery. It may be the sending out of the official notice that the bishop has granted a dispensation which was re- quested. Those who are connected with the diocesan Archives act in the same capacity. The office of Chan- cellor of the diocese is an example of the voluntary form of jurisdiction.® He is the official secretary of the bishop and his communications concerning diocesan affairs are always conducted in the name of, and with the authoriza- tion of, the Ordinary. Contentious jurisdiction implies the exercise of an au- thority which is quite different. It empowers the one on whom it is conferred to act in an executive, legislative, or judicial capacity. The person so delegated may act in the role of a judge. He thereby has the power to read the law officially. As a judge, he may hold court, hear causes, interpret the law, render decisions, and fix the ® Can. 363. 7 Bouix, Tract. de Judiciis, Pars II, Sec. ITI. § Bouix, 0. c., l. ¢. ® Wernz, Jus Decr., V. II, n. 633. 12. The Judiciary Department of the Diocesan Curia. penalty for misdeeds. The judicial aspect of the curial activity is the matter to be considered in the present treatise. ‘The meaning and the purpose of this power will be shown. The great importance of such power in a society will then be deduced from this as a natural con- clusion. Meaning and the Purpose of the Judicial Power. It is not within the scope of the title of this dissertation to give proof of the foundation of the Catholic Church as a perfect society. This will be understood as an established fact. A doubt in any critical mind can be very easily dispelled by the most passing observation of the activity of the Church. The Catholic Church is a great force in the world today, influencing the minds, hearts, and the lives of men. With a well-defined code of doctrine and morals, her activity in all the problems which are vexing society today, She is giving undeniable evidence of her life as an active organized society. Being a well-organized society She must possess all the prerogatives to be found in a society perfectly or- ganized. She must possess, and She must be able to use, all those powers which make of an aggregation of human beings a society, or a unit. It is the prudent use of these powers that will make of the many individual human be- ings, a moral unit, agreed on the accomplishment of a common purpose. These powers are the executive, the legislative and the judicial powers. Executive Power. There must be in the Church a Chief Executive to direct and formulate the policy to be followed by those who are the members of this society. The Pope of Rome is the visible Head of the Church. He is the earthly representative of Christ, the Divine Founder of the Church. The Supreme Pontiff is the suc- cessor of St. Peter, the first Pope, who held his office by a direct appointment from Jesus Christ. The Pope is assisted in the government of the Church by the Bishops who are appointed from Rome. The Judiciary Department of the Diocesan Curia. 18 Legislative Power. Laws and regulations are neces- sary for the preservation of moral unity in any group of individuals. The Decalogue is the basis of all legis- lation in the Church. This is the legislation which repre- sents a direct revelation from Almighty God. There are other laws, which the Church, guided by Divine Wis- dom, has found necessary to enact. These laws may by purely ecclesiastical, such as the diocesan regulations concerning clerical dress and social life. They may be ecclesiastical laws based on the divine or natural law, for example, the precept to hear Mass on Sunday, the regu- lations on fasting and abstinence, the duties of the mar- ried state and many other such laws. Regardless of what their foundation may be, it is sufficient for the faithful to know that the law issues from the legislative authority in the Church. Judicial Power. From the executive and the legisla- tive authority a third power follows necessarily. This power is the judicial power.. It pertains to the admin- istration of justice. The judicial power calls for the ex- istence of judges and courts. The judicial procedure is concerned with the actions of the members of a society to decide whether or not the actions are in conformity with the statutes of the law. A law may be negative or positive. It may command the performance of a certain act. An unlawful action is one which is contrary to a law. The decision as to the lawfulness or the unlawful- ness of an act comes within the scope of the judicial power. In the court of a society the guilt or the inno-- cence of the individual member is established. The judge presides over the department of the judiciary. He is the official interpreter of the law and his jurisdiction extends to all those causes which come within the limits of his power. This official position of the judge to inter- pret the law renders the individual estimates and indi- vidual interpretations of what a law may mean useless and unnecessary. The decision of the judge applies the law to the case. Unless there be just cause for a recourse 14 The Judiciary Department of the Diocesan Curva. to another court or a legal reason for appeal to a higher court, the decision of the first instance stands and the case is closed. Importance of Judicial Power. The great importance of the judicial power in any society is apparent. What is the benefit of a code of laws to a society unless the laws have some influence on the daily lives of the members of that society? Why have fixed statutes if the individual members of the society be permitted to disregard them at will?) Of what benefit can a law be to a society, if the law may be disobeyed without fear of punishment? These questions were surely in the mind of Pope John XXII when he wrote: ‘‘It would be folly to make laws unless there were some one to enforce them.’’?° ‘This import- ant power of enforcing laws, is vested in the courts and operates through the decisions of the judges. In the courts of justice the guilty receive the punishment for their transgressions of the law, and the innocent are de- clared free through the impartial adjudication of their acts. This judicial institution, like so many other insti- tutions in the social life, had its beginning, and developed according to the needs of the society whose needs it served. Personnel of the Diocesan Judiciary. The persons to be considered in this dissertation are those members of the diocesan curia who attend to the ‘‘res judiciales.’’ It is quite clear from the Code that the fullness of the judiciary power is vested in the Ordinary of the diocese. This fact is established from Canon 1572, § 1: ‘‘In unaquaque diocesi et pro omnibus causis a iure non ex- presse exceptis, iudex primae instantiae est loci Ordinarius, qui iudiciariam potestatem exercere potest, per se vel per alios, secundum canones qui sequuntur.”’ The canon states that this is true in every diocese, ‘‘in unaquaque diocesi.’’ Ecclesiastical territory which has 1° Cap. un, de Judiciis, II. I, in Extrav. Comm. The Judiciary Department of the Diocesan Curia. 15 been canonically erected constitutes a diocese.*! Both au abbaey and a prelacy nulliws are included in the term diocese.1*? The Apostolic Vicariate and the Apostolic Prefecture are not to be included.t® Should it happen that the episcopal see be vacant by death or other rea- son, the judiciary power is then held by the vicar capitu- lar, or, as in this country, by the administrator of the diocese. It follows logically, that the judiciary power is also enjoyed by the one who rules an abbacy or prelacy nullius.14 The Ordinary may exercise this power in person, ‘‘ per se’’ or he may act through another, ‘‘per alios.’’ This power is ordinary and permanent as in the case of the officialis of the curia, or it is merely delegated for a par- ticular time and cause as it is done when the synodal judges act.1*° When reference is made to the personnel of the judiciary in this chapter there is no intention of including the Ordinary of the diocese. On the con- trary, those to whom the Ordinary has delegated this power are meant. The following quotation. from the Code will demonstrate who these persons are: ‘Curia diocesana constat illis personis quae Episcopo aliive, qui loco Episcopi, diocesim regit, opem praestant in regimine totius diocesis. Quare ad eam pertinent vicarius generalis, offi- cialis, cancellarius, promotor justitiae, defensor vinculi, synod- ales iudices et examinatores, parochi consultores, auditores, notarli, cursores et apparitores.’’ 1° In the reading of this canon it is well to keep in mind what has been stated concerning the extension of the term diocese in Canon Law. The same statement applies to the term Ordinary. ‘The diocesan curia is composed of the persons who assist the bishop in the duties of governing the diocese. This group is composed of both 11 Noval, Lib. IV, De Processibus, n. 110. 12 Can. 215. THM OVERLY) 0.) C0" ty. C, 14 Can, 215. 15S. d’Angelo, La Ouria Diocesana, Sez. II, Cap. I, n. 6. 16 Can. 363, par. 1 and 2. 16 The Judiciary Department of the Diocesan Curia. lay and clerical agents.'7 The extent to which they may assist the Ordinary depends entirely upon the nature of the office to which they are appointed. The curators and the apparitors,’® by the material aid they give, are truly members of the curia, as well as the vicar general, or the official of the diocese. The officers of the curia mentioned in Canon 363, the second paragraph, may be divided into two classes. The basis of the distinction is the nature of the jurisdiction which the bishop confers upon them. To the first group are assigned all those who assist in the administration of the spiritual and temporal matters in the diocese. These persons have voluntary jurisdiction and among them we find the vicar general, chancellor, payish con- sultors, ete.® To the second group belong the other members of the curia and their duties center about the judicial affairs, or the ‘‘causae contentiosae’’ of the dio- cese. To this group the bishop grants jurisdiction over criminal and contentious causes which may arise.?? The purpose of this dissertation is to consider the canonical powers of this second group. Hence the official,” synod- al judges,?? instructors and counsellors,?* notaries, the promotor of justice, defender of the bond,?* cursors and apparitors,?> will be considered historically and canon- ically in the chapters which follow. Before taking up the first of these, the official, an historical sketch will be given of the archdeacon and also of the vicar general. The former deserves our attention because of his precedence in history as an important officer in the curia. The latter is to be considered because of the relation between the archdeacon and the vicar general and more especially because of the provision in the Code which makes it pos- sible for the vicar general to act in the capacity of official or judge as well, in the diocesan curia.”°® 17 Can. 373, par. I. 18 Can. 1591, par. I. 1° Vermeersch-Creusen, Hpitome Iuris Oanonici, Tom. I, n. 432. 20 Vermeersch-Creusen, o. c., l. ¢. Pe NE LO oe 22 Can. 1574. 23 Can. 1580. 24 Can. 1585-1590. 25 Can. 1591-1593. 26 Can. 1573, par. I. . The Judiciary Department of the Diocesan Curia. 17 CHAPTER IT. ImporTANtT OFFICERS IN THE Haruty Curt. Curia a Necessity. The rapid growth of the Church and the consequent multiplication of the duties which fell to the lot of the bishops, are the reasons given by Canon- ists for the organization of the diocesan curia.t’ Among the first diocesan officers, the Archdeacon stands out as one of the important members of the curia. His prom- inence is noted as early as the fourth century.? The first mark of distinction which characterized the Archdeacon was that of priority or presidency over seven deacons. It seems that the custom of Apostolic times of appoint- ing deacons was continued in some of the ancient Churches. The appointment of one of the deacons to be the Archdeacon was made by the bishops. The one appointed was not necessarily the senior deacon but one whom the bishops considered qualified for this position.* Tur ARCHDEACON. The principal work of the Archdeacon was the custody and administration of the temporal goods of the diocese. He was the one to whom the offerings of the faithful were entrusted. With the money entrusted to him he helped the poor and those in need of assistance. He was present and assisted the bishop at the ceremony of ordi- nation. He exercised jurisdiction over clerics who were his subjects. He was empowered to visit the parishes, point out and correct abuses which he found. He might do this by a judicial procedure in which process the Archdeacon acted as judge.® 1 Wernz, Jus Canonicum, Tom. II, Tit VIII, Art. I, n. 634. ? Thomassin, Vetus et Nova Eccl. Discip., Cap. XVII, P. 1. 12. 8’ Wernz, 0. c., l. ¢. *Thomassin, o. ¢.,\P. I, 1. 2, Cap. 17, n. 11: eGo Li parol D265: Caps. Leerd x, deo. archid:,, f)23: 2 18 The Judiciary Department of the Diocesan Curia. The foregoing applies to the person and the activity of the Archdeacon who resided in the episcopal city. He was called the ‘‘ Archidiaconus Civitatis,’’ that is, of the city, in contradistinction to the rural archdeacon.° The Rural Archdeacon. The rural Archdeacon was appointed to a certain locality of the diocese. This place was known as the Archdeanery and was precided over by the Archdeacon. The practise of dividing the diocese into archdeaneries is found in France at the be- ginning of the ninth century.* According to Fournier, ‘(There were three archdeacons in the diocese of Paris, six in the diocese of Chartres and two in Arran. In former times there was but one.’’® Sometime after the ninth century this custom was gradually introduced in England, Germany and later into Italy.® In the eleventh century new powers were assumed hy the Archdeacon. By this time he claimed and made use of, juridical as well as administratorial power. In the archdeanery, the Archdeacon considered himself su- preme. In disputes, legal controversies and the punish- ment of crime, the Archdeacon acted in the role of a judge. His tribunal was the court of first instance. F'rom this court an appeal could be made to the episcopal tribunal, or that tribunal in which the bishop was judge.’® At the close of the twelfth and in the early part of the thirteenth, the bishops faced a serious problem. ‘The Archdeacon was exceeding the rightful powers of his office. He was assuming a priority in ecclesiastical legal procedure which belonged to the bishop of the diocese. Because of this condition it became necessary to define the limits and nature of the Archdeacon’s jurisdiction, for the safeguarding of the episcopal authority and dig- nity.14 POW CYTE, Ds 1s) bx Cog hae 7 Fournier, Les Origines du Vicaire Général, Chap. ITI. ® Fournier, ibid. ° Wernz, 0. c., ibid. 1° Cap. 7, 9, 10, X, de off. archid., I, 23. 11 Cap. 6, 8, X, de off. archid.; Cap. 3, X, de poenis, V, 37. The Judiciary Department of the Diocesan Curia. 19 The situation was further aggravated by the change which had crept in gradually in the method of appoint- ment of the Archdeacons. Formerly, the Archdeacon was appointed by the bishop who was free to make the selection. The evils which accompanied the practise of conferring of benefices were felt here also. The arch- deanery was a benefice and desired because of the rank of position and income. The civil authorities often in- terfered in the appointments. In some instances the civil ruler made the appointment directly. Again he might influence the choice of the bishop. The Cathedral Chapter had been known to select an Archdeacon, inde- pendent of the bishop’s wish in the matter.’? The inevitable consequence of this interference was that the Archdeacons appointed by authority other than episcopal, considered themselves independent of the Or- dinary of the diocese in matters of administration and jurisdiction. As Maroto states, these officers considered their position ‘‘a jure’’ that is, by right or by law. It is clear from this that the bishop might experience some difficulty in the removal of an Archdeacon who had ex- ceeded the limits of the archdeaconal power." Legislation. ‘‘It is not to be wondered at,’’ writes Wernz, ‘‘ that the bishops took council as to the method and means by which they might limit and control the powers of the Archdeacon, and to appoint other officials in curia whose appointment and removal depended upon the Ordinary.’’ 14 The first effort to correct the abuse was the appoint- ment of a new type of officer in the curia. There is record of this action early in the twelfth century.!® In the thirteenth century the bishops appointed officers who were to take their place in curia residing in the city with the bishop, or to live at a stated place in the diocese. 12 Maroto, o. c., Tom. II, n. 760. *® Maroto, 0. ¢., l. c., “a jure datur, non ab episcopo assumptus.” 14 Wernz, 0. c., l. c., e. 8, Cone. Turon., 1234. *® Wernz, 0. c., l. ¢.; ¢. 22, Cone. Rothomag. 1190. 20 The Judiciary Department of the Diocesan Curva. These officers were appointed by the bishops and were removable from office ‘‘ad nutum episcopi.’’ The offi- cial who resided in the city was called the ‘‘officialis prin- cipalis’’ and to him appeal could be made from the court of the ‘‘officiales foranei’’? or those who were appointed in certain parts of the diocese, outside of the cathedral city.?® It is the opinion of Wernz that the ‘‘officialis princi- palis ’’ is the vicar general of later history. This officer, the vicar general, is mentioned in the Decretals of Greg- ory IX. In the later compilation of Boniface VI and Clement, the office of vicar general frequently referred to in the constitution of laws and regulations concerning the position and activity of the vicar general in the curia..7 Although this office was not instituted in the thirteenth century it is between the years 1234 and 1298 that this official institution became known. This same period marks the decline of the Archdeacon’s powers and importance. In the Council of Trent. The bishops met the prob- lem of the Archdeacon’s power in another way, that is, by direct legislation against them. In the Council of Trent, it was declared that the Archdeacon could not act as a judge in prima instantia in matrimonial cases. He was also forbidden to render judgment in criminal cases in- volving the trial of clerics.‘ In a later session of the council they declared that the Archdeacon had no Jjuris- diction over cases of clerics charged with the crime of concubinage. Neither could the Archdeacon excommuni- cate those against whom a charge had been made.*® By enactments such as those just cited, as well as through the more direct procedure of the bishops in appointing new officers, the archdeacon lost his position and powers in the curia of the diocese. Today he is not 16. Wernz, 0. ¢., l. c., quoting Inn. IV, in Const. “ Romana Ecclesia.” 17 Cap. 23, de off. vic., I, 13, in Sext; Cap. 2, de rescr. 1, 2 in Clem. 18 Sess. XXIV, de ref., C. 20. 19 Sess. XXV, de ref., Cap. 3. The Judiciary Department of the Diocesan Curia. 21 mentioned in the list of the diocesan officers. The title of Archdeacon today is more commonly known in the liturgical and ceremonial functions than in the juridical offices of the Church. A phase, somewhat different from the official charac- ter of the Archdeacon, his decline, removal, ete. from the curia is presented in a late work of Edouard Fournier, ‘‘Les Origines du Vicaire General.’’*° This work is an historico-canonical study of the origin of the vicar gen- eral as an ecclesiastical officer. Fournier objects to the statement that the office of vicar general was created by the bishops for the express purpose of suppressing’ the Archdeacon.*! He tries to establish the point that the official appointed about the eleventh century in France is an officer quite different and distinct in his activities from the vicar general of a later century.?? More attention will be given to this particular point in a later chapter of this dissertation. Fourmer’s Opinion, It is the opinion of Fournier that the historical development of the office of vicar general should be traced from another ecclesiastical officer—the procurator-general. This officer seems to have origin- ated about the thirteenth century. The French Canonist quotes and adopts Reiffenstuel’s definition of a procura- tor, that is one who is ‘‘pro alio curator, nempe pro- domino, cujus loco et nomine res seu negotio ... sua gerit et administrat.’’?3 According to this definition, a procurator to represent him. If a Bishop were pre- administers the affairs of another person, many in- stances are quoted to show how frequently procurators were used during the Middle Ages. ‘Thus the parish priest who could not attend the diocesan synod appointed a procurator to represent him. If a bishop were pre- vented from attending the provincial council he ap- pointed his procurator as his representative. A quota- tion from the Decretals of Pope Gregory IX shows that 20 Paris, 1922: *2 Chap. IV. 31 Chap. IT. 25 Fournier, Chap. V, p. 73. 92. The Judiciary Department of the Diocesan Curia. Pope Alexander III addressed a rescript to the ‘‘pro- curatori et canonicis Sorranis.’’*+ This procurator, Fournier explains, is evidently, from the sense of the context, an administrator of the diocese of Sorro, whose bishop is dead. It is in this type of officer in ecclesias- tical procedure that Fournier sees the forerunner of the vicar general, who is a prominent officer of the diocesan euria according to the present legislation of the Code. Wernz and Fournier. Both Wernz and Fournier agree as to the main facts in the discussion. The archdeacon gradually lost his power and position as a diocesan of- ficial. The Council of Trent, though eulogizing the mer- its of the archdeacons, reduced their position from one of juridical importance to that of a mere titular dig- nitary in the episcopal family. Both authors agree as to the fact that a new office was created, to which office was gradually ceded the power formerly granted to the archdeacon. This officer of later appointment became the administrator of the diocese. The disagreement in the discussion seems to arise over the motive which ani- mated the change in the policy. Wernz follows the tra- ditional statement of historians, that the vicar general was created for the express purpose of dethroning the unruly archdeacons. Fournier terms this an undigni- fied and unworthy motive to attribute to the hierarchy in attempting to meet a crisis. Though Wernz’’ recog- nizes and quotes the work of Fournier he does not openly agree or disagree. Hence it seems that the question still remains one open for discussion for the writers and students of history, and as an open question we leave it. With this somewhat brief review of the history of the archdeacon and vicar general, some ideas are now in the mind concerning the juridical position of these officials in former centuries. The logical step now is to take up the consideration of the present status of the vicar gen- ROC Vik Soe Lido 25 Wernz, 0. c., footnote, p. 673. The Judiciary Department of the Diocesan Curia, 25 eral. A presentation of the Canons from the Code will give the proper aspect of this question. Tuer Vicar GENERAL. Can. 366. §1. ‘‘Quoties rectum diocesis regimen id exigat, constituendus est ab Episcopo Vicarius Generalis, qui ipsum potestate ordinaria in toto territorio adiuvet. S 2. Vicarius Generalis libere ab Episcopo designatur, qui eum potest ad nutum removere. § 3. Unus tantum constituatur, nisi vel rituum diversitas vel amplitudo diocesis aliud exigat; sed, Vicario Generali absente vel impedito, Episcopus alium constituere potest qui eius vices suppleat.’’ There are three important points contained in the first paragraph of this Canon, which are: (1) the reason why a vicar general should be appointed; (2) nature of the power conferred on the vicar general; and (3) the per- son having the right to make the appointment. - The vicar general is a priest lawfully appointed by the bishop, empowered to exercise the episcopal juris- diction in any part of the diocese. He acts by authoriza- tion of the Bishop, so that the bishop is responsible for the legal acts of his vicar.?® Reason for the Appointment. The reason for the ap- pointment of this vicar is the ‘‘rectum regimen diocesis’’ the proper conduct of diocesan administration. The size of the diocese, in extent and numbers, the spiritual and material affairs demanding attention, and the activity of the bishops, are a few of the circumstances which will determine the question in regard to the need of a vicar general. Appointment to come from the Bishop. The bishop is the one who appoints the diocesan vicar general. An abbot or a prelate nulliws may also appoint a vicar gen- 26 Vermeersch-Creusen, Tom. I, n. 435. 94 The Judiciary Department of the Diocesan Curia. eral if one be necessary in the territory which they rule2* Vicars and Prefects Apostolic do not enjoy this right under the general law. Benedict XIV in the Con- stitution ‘“Quam sublimi,’’ 1745, granted to Vicars and Prefects Apostolic the privilege of appointing a vicar delegate.2? The competence of this officer is similar to the jurisdiction conferred on the vicar general by the Code.*§ The obligation of appointing a Vicar General is not absolute. The decision as to when it is necessary is left to the judgment of the bishop. Should a bishop, through negligence, fail to meet the need, the Holy See may inter- fere and appoint the vicar general. A vicar general so appointed is not removable ad nutum eprscopr.?” Power Conferred. The third point to be noted in this paragraph is the nature of the power conferred on the vicar general is ordinary power throughout the diocese. It is ordinary because it is conferred by the Code, the general law, and ‘‘vi officii,’’ that is, by reason of the appointment to the office. This ordinary jurisdiction 1s however a vicariate power since he acts in the name of the Ordinary. The Ordinary is responsible for the legal acts of the vicar.2° It is clearly stated in this paragraph (Can. 366, § 1) that the jurisdiction of the vicar general is coextensive with the territorial limits of the diocese. It is the Ordinary of the diocese who has the right to make the appointment. He is independent of all powers —hoth temporal and ecclesiastical. Neither the civil authorities nor the cathedral chapter nor the consultors, may lawfully interfere. The bishop may use his own discretion in considering the removal of the vicar gen- eral. He may be removed from office whenever the bishop finds it advisable to remove him. 262 Can. 323, § 3. 27 Const. “ Quam sublimi,” 1745. 28 Wernz, 0. c., 636 (AAS. XII, 1920, p. 120) ; Ver.-Cr., p. 254. 2@ Wernz, o. c., quoting Ferraris, n. 636. 30 D’Angelo, 0. c., p. 10, n. 4. The Judiciary Department of the Diocesan Curia. 25 The Number of Vicars General. The Code recognizes two possibilities, when either one existing, the bishop may appoint more than one vicar general. In the year 1742 Pope Benedict XIV had conceded the privilege to the bishops to have more than one vicar general in those dioceses where there were a considerable number of the faithful of different rites, for example, Greeks, Ruthenians and Latins in the same diocese.*! This point is mentioned in the Code, ‘‘rituum diversitas,’’ hence it ‘has the force of general law.*? The second possibility is the consideration of the size of the diocese. A densely populated diocese or a diocese covering an extensive ter- ritory may be sufficient reason for the appointment of more than one vicar general.** Requisite Qualifications. The vicar general of the diocese should be a man chosen from the ranks of the secular clergy. He should be at least thirty years old. The Code requires that the appointee be one who has the degree of doctor or licentiate in theology and canon law, or at least one who is proficient in these branches. His mental and moral qualifications should be the highest, and his ability and prudence should be evident from his past activity in the diocese.*+* If the Holy See appoints a religious community to take charge of a diocese, the vicar general of that dio- cese may be a priest of that community.®® The mere fact that a religious is made the head of a diocese does not indicate that the community has been appointed over the diocese. If the community is to be in charge of the dio- cese the appointment will be made to the community as such. No example of this is to be found in our own country. Paragraph three of Canon 367 enumerates those who are excluded from the office of vicar general. 1. The Canonical penitentiary. 31 Htst Pastoralis, May 28, 1742. 32 Can. 366, § 3. 14 Cait: 307429.1, 0 919s 33 Can. 366, § 3. 85 Can. 367,: $2. 96 The Judiciary Department of the Diocesan Curia. 9 Blood relations of the Ordinary in the first degree or the second mixed with the first. 3. Parish priests and those engaged in the cura ani- marum. The Ordinary is forbidden to appoint blood relations in the degree mentioned above, lest his motives be ques- tioned. He may not appoint a brother, neither his nephew. The penitentiary and the parish priest and those entrusted with the care of souls are excluded lest +n the external forum they be forced to deal with subjects over whom they have power in the internal forum. The jurisdiction of the vicar general is in externo and he should never be suspected of acting in external forum on matters submitted to him in the confessional. Power of the Vicar General. The vicar general, ‘‘ vi- officii,’’ by reason of appointment to the office, possesses ordinary proper jurisdiction in every part of the dio- cese2° The right to exercise this jurisdiction begins when he takes possession of the office.*° The jurisdiction extends to both spiritual and temporal affairs im the diocese. The two exceptions in Canon 368 limit the power of the vicar general. He has no jurisdiction in those mat- ters which the bishop may reserve to himself.** How far may the bishop go in limiting the power of the vicar general by reservations? D’Angelo is of the opinion that the bishop may not go to such extremes in limiting the power of the vicar general as to change the nature of the universality of jurisdiction. This universality of power as to persons and territory, is granted to the vicar eeneral by the general law according to the Canons of the Code. Should the reservations be too numerous and the vicar ‘general be compelled to seek special conces- sions from the bishop, the character of a vicar general 36 Can. 368, § 1; Can. 197; Can. 198. 87 Can. 1095, § 1, n. 1. 38 Can. 368, § 1. The would Judiciary Department of the Diocesan Curia. 27 be destroyed and instead there would be merely a delegated agent.®® Limitation of Power. The jurisdiction of the vicar general is limited when the General law, the Code, re- quires a special commission from the bishop for certain functions. The acts which may not be executed by a vicar general except by special commissions are: (8) The institution of ecclesiastical offices.*° The calling, or presiding over a diocesan synod.*! The appointing of pastors.*” The removal of assistants, ‘‘vicars’’ in parishes.** The organization of pious associations.*4 The reservation of sins.*® The concession of dismissorial letters.*® The grant of permission for a ‘‘ matrimonium conscientiae.’’ 74 (9) (10) (11) (12) (13) (14) (15) (16) (17) The consecration of a church or place of worship.*® The grant of permission for building a church.*® The authentication of relics.*° The regulation of the amount of.a stipend.*! The establishment of a benefice.** The union or conferring of benefices.*3 The grant of a canonical institution.*4 The permission for the exchange of benefices.°° The fixing (‘‘statuere’’) of ecclesiastical punish- ments.°® (18) The vicar general is excluded from the whole of the second part of Book Four of the Code.** 8° D’Angelo, o. c., p. 15. 4° Can. 1162, § 1. 4° Cam. *1 Can. 42 Can. 43 Can. 46 Can, 45 Can. 4® Can. 47 Can. 48 Can. 152. $9 Can 1283.) 82. 357, $ 1. Pt Cans. a0). 8 a. 455, § 1. 5°? Can. 1414, § 3. 477, $1. 58 Can. 1423, § 1; Can. 1432, § 2. 686, § 4. 54 Can. 1466, § 2. 893, § 1. 55 Can. 1487, § 1. 958, § 1; Can. 959. 56 Can. 2220, § 2. 1104. 57 Can. 2002. 1155, § 1. 98 The Judiciary Department of the Diocesan Cura. (19) The absolution in foro eaterno of heretics, apos- tates, etce., from excommunication.”® The Mandatum Speciale. There is a dispute among canonists as to the time when the ‘‘mandatum speciale,”’ the special commission which the Code requires, should be given. Should the bishop delegate in each particular case when the Code so requires, for example, at the time of the consecration of a particular church! Can this concession be made in a more general way, say at the time the vicar general is appointed—giving him jyuris- diction for all matters—‘‘etiam quoad omnia quae spe- ciale mandatum requirunt’’—? Oietti seems to favor a general delegation covering all cases. He styles it a ‘“mandatum speciale permanens.”’ °° Badii does not favor the concession by a general formula to cover any and all cases which may arise in the future.°° Vermeersch holds that the ‘‘mandatum speciale’? may be eranted by way of a general delegation. He says: ‘‘Hpiscopus potest ipsis litteris, quibus vicarium generalem, constituit, ad- dere se eum deputare—‘‘ etiam ad ommia quae speciale mandatum requirunt.’’ This seems to be a safe and satisfactory statement on the question. The preceding paragraphs contain the present legislation as to what functions require this special delegation.®* Canon 2002 limits the power of the vicar eeneral by forbidding him to act in the cause of a beatification or a canonization of a servant of God. This canon states that the vicar general is not to be understood in that section of the Code which deals with processes and per- sons involved in beatifications, etc., when the name Ordi- nary occurs. This, of course, is an express exception to Canon 198. The vicar general is declared ineligible for appoint- ment to office on the committees selected by the Bishop 58 Can. 2314, § 2. 5° Quoted by D’Angelo, o. c., p. 17. 6° Badii, Inst. I. Can., p. 220. 61 Vermeersch-Creusen, 0. c., Tom. I, n. 436. The Judiciary Department of the Diocesan Curia. 29 for the consideration of disciplinary or administrative questions in the diocese or seminary.” The vicar general may execute Apostolic rescripts which may have been sent to the bishop of the diocese if there be no restriction to the contrary. The common or habitual faculties which the Holy See grants to the bishop, belong to the vicar general also.®* The vicar general, being the vicar of the Ordinary of the diocese, must keep in mind the principle that he acts in the name of the bishop. Hence the bishop should be consulted on the important acts of the curia which are directed toward the discipline of the clergy or the laity.®* ‘‘Let him beware,’’ warns the Code, ‘‘lest he use his powers contrary to the mind and will of the bishop. having due regard for the prescriptions of Canon 44.”’ There is no appeal from the vicar general to the bishop.® A faculty denied by the vicar general may be conceded by the bishop, the fact being mentioned that the vicar general had refused to grant petition.®® Right to Recognition as Prelate. Canon 370, §1: ‘‘Praesente etiam episcopo, vicarius generalis publice priva- timque praecedentiae ius habet super omnibus diocesis clericis, non exclusis dignitatibus et canonicis ecclesiae cathedralis, etiam in choro et actibus et capitularibus, nisi clericus charactere epis- copoli praefulgeat, et vicarius generalis eodem careat. § 2. ‘*Si vicarius generalis sit episcopus, omnia honorifica privilegia episcoporum titularium obtinet; secus durante munere habet tantum privilegia et insignia Protonotarii apostolici titu- In the first paragraph of this canon the precedence of the vicar general is declared. In the presence of the bishop, the vicar general takes precedence over all dio- cesan clerics, including dignitaries, prelates and the canons of the cathedral chapter. Should there be a cleric 62 Can. 1359, § 1 and § 2. 65 Ver.-Creus., 0. c., n. 438. 68 Can. 66; Can. 198, §1. 86 Can. 399; Can. 44. 64 Can. 369. 30 The Judiciary Department of the Diocesan Curia. in the diocese raised to the episcopate, he alone will take precedence over the vicar general if the viear be not a member of the episcopate. It is now the general law that if the vicar be a bishop, he may avail himself of all the honorary privileges of a titular bishop. Such would be the case if the auxiliary bishop of the diocese be the vicar general. If the vicar be not a bishop, the Code prescribes that he is to have all the privileges and insignia of a titular prothonotary apostolic prelate during the time he holds this office in the diocesan curia. The last clause of the second para- eraph of this canon is based on the Motu Proprio of Pope Pius X, ‘‘Inter multiplices,’’ Feb. 21, 1900. The Expiration of this Office. Canon 371: ‘‘Expirat vicarii generalis iurisdictio per ipsius renuntiation- em ad normam can. 183-191, aut revocationem ei ab Episcopo intimatam, aut sedis episcopalis vacationem; suspenditur vero suspensa episcopali iurisdictione.”’ In this canon the Code defines the manner in which the office of vicar general expires or is suspended. Some of these follow the general law on loss of ecclesiatical office; the others are peculiar to the office of the vicar general. 1. The ordinary and more common way by which an ecclesiastical office ceases is by resignation.®& The Canons referred to to which govern the process of resig- nation of an ecclesiastical office state that the resignation should be for a just reason,® there being no special pro- hibition preventing the resignation. The resignation must be a free act, not the result of fear, threat or vio- lence.?° The legal formalities are to be observed, hence either in writing, or if oral, before two witnesses.7* Fin- ally, the resignation must be accepted by the lawful superior.”” 87 P)’Angelo, 0. ¢., p. 23. 7 Can. 185. 68 Can. 183. 71 Can. 186. 6° Can. 184. 72 Can. 187. The Judiciary Department of the Diocesan Curia. 31 2. This office may cease by revocation. This revoca- tion or recall must come from the Ordinary. The vicar is to be duly notified of the will of his superior in re- calling the appointment. 3. The death, removal or the resignation of the bishop signifies the cessation of the office of the vicar general of that diocese. From this it follows that the jurisdic- tion of the vicar general is dependent upon the con- tinued and uninterrupted jurisdiction of the bishop of the diocese.” Canon 430 considers the case of a bishop being re- moved from one diocese to another. Even though he were to remain in the diocese ‘‘a quo’’ as Apostolic Ad- ministrator of that diocese during the allotted space of time of four months, the vicar general in the diocese ‘fa quo’’ would cease to function on the day of the noti- fication of the transfer.™4 73 D’Angelo, 0. c., p. 26. "* Cane 430.0 §'2.\'§ 3, now], 29 The Judiciary Department of the Diocesan Curia. CHAPTER III. THe OFfFICIALIS. The Judge. The Code states that it is the duty of every Bishop to appoint a judge as one of the members of the diocesan curia. This judge is called the officialis and the method of appointment, competency, qualifica- tion, and other related questions are outlined in Canon 1573. A judge in the legal sense is a judicial officer appointed or elected to preside in the courts of law and to decide legal questions duly brought before him. The judge presides over the judiciary department, and it is through this department that laws are administered.* History. In ancient Roman law there were two phases observed in judicial procedure. The contention, or crime was first brought to the notice of the Roman magistrate or ruler. He did not investigate the facts of the case but decided it to be a case within the scope of the law and appointed the judge, giving him the necessary instruc- tions. The process which was conducted by the magis- trate was known as ‘‘in jure,’’ or in the law. The in- vestigation proper before the judge was termed ‘‘in ju- dicio,’’ or the judgment of the cause.” Pretor—Judex in Roman Law. The Roman pretor was a civil magistrate who had charge of the administra- tion of justice. The first pretor was appointed in the year 366 B. C.® According to Livy the chief functions of the pretor- ship were ‘‘jus in urbe dicere,’’ to interpret the law ofh- cially, at times they commanded the armies of the state, and even supplied in the absence of the consuls within the limits of the city.’ 1 Funk and Wagnalls, Diet.—‘ judge ”—* judiciary.” 2 Smith, Dictionary of Greek Antiquities, v, “ judex.” * Smith, o. c., Ledlie, The Institutes by Sohm., par. 57. 4 Livy, VI, 42. e Smith, /o. ¢. The Judiciary Department of the Diocesan Curia. 33 Another pretor, the Pretor Peregrinus, was appointed in the year 246 B. C. The duty of this officer was to administer justice in disputed matters between the pere- erini, the travellers in Rome, or between peregrini and Roman citizens. The other pretor was then known as the Pretor Urbanus and his duties were within the city of Rome. The pretors existed in varying numbers in the period of Justinian Law, in the latter days of the Empire and continued to exercise jurisdiction in judicial matters.’ Legislative and Judicial Power of Apostolic Times. Christ, the Divine Founder of the Church, appointed His Chief Executive, St. Peter. The one appointed by Christ to be the representative head of the Church, received his commission before the day of the Ascension. This commission carried with it all the power necessary for the conduct of the affairs of the Church.’ St. John is the witness of the conferring of this commission, which was promised according to St. Matthew.? This commission conferred the power to rule in the Church. The historical record of the early years of the Church’s activity demonstrates the fact that the Apos- tles acted in the capacity of rulers. St. Peter asserts his position as a leader and ruler in the Church at the Council of Jerusalem.’® St. Paul in a discourse to the clergy at Ephesus, reminds them that they have been delegated to rule in the Church of God and that as bish- ops they are responsible for the souls committed to their charge.4! In the Epistle to the Corinthians, St. Paul shows no timidity in making decisive statements con- cerning moral and religious practices. He assures the Christians at Corinth that he will set things in order when he makes his next visitation to the church at Cor- inth.'* In the Epistle to Timothy, St. Paul gives some ® Smith, o. e. 46 A Cha XV, 8: eee ay Las3h ahd Lae $4 ACER RON 2S; 8 St. John, XXI, 15. alt PER OL, a, ie ahs fins eB ° St. Matthew, XVI, 17-19. 3 94 The Judiciary Department of the Diocesan Curia. direct regulations concerning the conduct of the mem- bers of the Hphesian congregation. He not only makes use of direct legislative power, but also delegates the enforcing of his regulations to the Bishop of Ephesus, St. Timothy.*” ; Unless the legislative power be supported and com- plemented by the judicial power, the former is of little avail. The executive without the judiciary 1s a weak and ineffective power. ‘The laws are but written statements, intrinsically so many dead letters, and cannot enforce themselves. This is true of every society, it is true of an ecclesiastical society ‘such as the Church. The wis- dom of Christ foresaw and made provision for this need. He conferred on the Apostles the right to judge the actions of the members of the Church.™ He empowered them to punish offenders and to exclude unrepentant offenders from the society of the Church.’” The Apostles made use of this power. The evidence of their conscious knowledge of it is found in their teach- ings and writings. St. Paul shows no hesitancy in de- nouncing the crime of incest reported to him from Cor- inth. The Apostle ordered the incestuous one to be ex- communicated from the congregation lest his shameless conduct be a source of contamination to others.*® In another letter St. Paul instructs Timothy in the judicial process to be observed by a Bishop who officially receives an accusation against a cleric.” The Councils. Other facts of history, which stand as evidence of the use of the judicial power in the Church, are the great Councils. An Ecumenical Council is an assemblage of the bishops of the world, who, in union with the Supreme Head of the Church, speak authori- tatively on questions of doctrine and discipline. Arius and Arian heresy were condemned in the Council of Nice in the year 325. Nestorius and his heretical teachings 137 Tim., V, 19. 16 J Cor., V, 3, 12, 13. 14 Wernz, o. c., Tom. V, n. 80. 177 Tim., V, 19. 15 §t, Matthew, XVIII, 14-18. The Judiciary Department of the Diocesan Curia. 395 were condemned in the year 431. The Council of Chal- cedon was convened in the year 451 for the purpose of examining the strange teachings of Eutyches. Both he and his doctrines were condemned by the Council. The Council of Trent and the Council of the Vatican, famous for the great reforms which were accomplished in their sessions, are well known, being nearer the present period of history. The Office of Judge in Justinian and Canon Law. The foregoing considerations establish the fact that the judi- ciary power has always been in evidence in the Church. The present dissertation is also concerned about the ori- gin of the particular officer in whom this power is vested, that is the officialis mentioned in Canon 1573. It seems that his prototype can be traced to the pretor of Roman Law. The Catholic Church was the mistress of the world, the one secure organization in the times of the barbarian invasions. At this time, about the eleventh century, Roman Law was fast losing its force because of the disturbances in political affairs and also because of the legal system which the barbarians brought with them —the Jus Barbaricum. About this same time Canon Law began to be organized on a scientific basis, and codi- fied. A concrete example of this is the Decretum of Gratian. The Church, the clergy adhered to the method and principles of Roman Law and Gratian uses legal terms when speaking of property, rights, ete., identical with those found in the Corpus Iuris Civilis of Justinian. There is also a great similarity in the titles and offices of legal personages. To this may be added the opinion of Fournier.!® This canonist holds that the position of the judge in the dio- cesan curia was firmly established in the diocesan curia in the first half of the twelfth century. His competency to hear cause within the jurisdiction of the bishop is affirmed by Pope Innocent IV in the constitution ‘‘Ro- 18 Fournier, 0. ¢., p. 67. 26 The Judiciary Department of the Diocesan Curia. mana ecclesia.’’ It is the opinion of Fournier that the officialis of Canon Law is an ‘nstitution which was first known in the Chureh in France. From there it spread to the other countries of the Continent but it was in France that the officialis acquired his complete develop- ment. In proof of this statement he cites the title ‘‘ Officio Vicarii ’’ of the Sextus of Boniface VIII.” The Officialis in the Code. Canon 1573, Sle ‘‘Quilibet Episcopus tenetur officialem eligere cum potestate ordinaria iudicandi, a Vicario Generali distinctum, nisi parvitas diocesis aut paucitas negotiorum suadeat hoc officium ipsi Vica- rio Generali committi.’’ In this, the first paragraph of the Canon, the office of the diocesan judge ‘‘officialis”’ is established by the gen- eral law of the Church. By whom is he appointed? The officialis is appointed by the bishop of the diocese or the Ordinary of the locality. Under certain circumstances the appointment may be made by one not a consecrated bishop, e. g., the vicar capitular.?° Both the abbot and the prelate nullius are privileged to appoint an official, since by Canon 215 they are to. be understood as ‘ ordi- narius loci,’’ ordinaries of a locality. This Canon must be read in the light of the foregoing Canon—1572. That Ganon defines the judicial power of the ‘‘ordinarius loci’? who may use this power in person or delegate it to others within his diocese or territory. Is the bishop bound to appoint an official. The Canon uses the word ‘‘tenetur’’—he is held to do so. The Code seems to anticipate the possibility of there being little need for the services of an official in certain localities. If such be the case in any diocese, then the bishop may appoint the vicar general to act in the capacity of judge also. The circumstances which justify this action on the part of the bishop are when the diocese is small, ‘‘ par- 19 Fournier, p. 70, 71; C. I. de off. v. I, 13 in VI. 20 Can. 1573, § 7. The Judiciary Department of the Diocesan Curia. 37 vitas,’’?1 or the rare occurrence of judicial trials in the diocese, ‘‘paucitas negotiorum.’’ ?? Hence it would seem to be the mind of the law that an official should be ap- pointed in every diocese. Noval makes the comment that it is wisely ordained that the judge:in the diocese be a person other than the bishop. The bishop is the pastor of the diocese and there are so many duties which demand his time and attention that the settlement of disputes, etc., may well be left to the officialis. Moreover, the rendering of judgments in either contentious or criminal cases may be more diffi- cult for the pastor and ruler of the diocese than for another who is but a member of the curia.?* The law specifies that the office of judge is to be dis- tinct from that of the vicar general. It is the opinion of Pellegrini that before the promulgation of the Code the officialis and the vicar general were one and the same, at least the titles were used indiscriminately." Fournier is of the opinion that the present legislation which makes the two offices separate and distinct is but a return to an ancient regulation. It is his opinion that the condition in Italy which allowed the union of official and vicar general into one and the same appointment was the result of a special concession or legislation. He maintains that in France the distinction between these two officers in the curia was always recognized, both in appointments and in spheres of action.*® Whatever the former discipline may have been, the present and future policy is governed by the Code. The officialis is an office in the diocesan curia is to be ‘‘a vieario generali dis- tinctum.”’ Nature and Extent of the Power of the Officialis: ‘‘Officialis unum constituit tribunal eum Episcopo loci; sed nequit iudicare causas quas Episcopus sibi reservat.’’ 2° 4} Can, 1673;" $01. 22 Can. 1573, § 1. #8 Noval; 0. o:,.11-113. 24 Pellegrini, Praxis Vicariorum P. 1, S. 1, subs., IT, I. 25 Fournier, 0. c., l. ec. p. 8. 26 Can. 1573, p. 2. 98. The Judiciary Department of the Diocesan Curia. The tribunal or court of the official is to be considered as one and the same with that of the bishop, that is, of the same grade. This does not imply that the officialis is equal in person to the bishop. The officialis derives his jurisdiction from the bishop. The bishop has the power to limit the jurisdiction of the official by reserva- tions of certain causes. But since the tribunal of the officialis is a court of the first instance, and since his jurisdiction extends to all persons and things within the diocese, it is said to be ‘‘unum tribunal cum Episcopo loci.”’ The bishop may limit the jurisdiction of the officialis by reserving or withholding certain causes from the ju- risdiction of the court of the officialis. Noval thinks that these reservations are not to be so numerous as to change the character of the power of the officialis from that of ordinary to merely delegated power. Should it be neces- sary to apply to the bishop for faculties to judge in the majority of causes, causes reserved to the bishop, he would be acting as a delegated official rather than as one with continued and ordinary power.** The Number of Officials in a Diocese: ‘‘Officiali dari possunt adiutores, quibus nomen est vice-offi- cialium.’’ 7° It follows logically from the term ‘‘officialis’’ in the first paragraph of this canon that there is to be but one such office in the curia. Should the need arise, because of the many cases coming in for hearing, the officialis is to be given assistants in the work. The paragraph quoted above justifies the appointment of these assist- ants and gives them the title of ‘‘vice-officials.”’ They are appointed by the bishop, their work will be in the judiciary department of the diocese under the presidency of the official and D’Angelo is inclined to think that their power is ordinary, just as the power of the officialis.?° 27 Noval, o. c., n. 114; D’Angelo, S. II, Cl, p. 2. 28 Can. 1573, p. 3. 2° D’Angelo, o. ¢., S. II, C. ka 3: sy) The Judiciary Department of the Diocesan Curia. 39 Noval writes that the vice-official ‘‘aequiparantur offici- ali in omnibus,’’ as is clear from §4 and § 5 (1573), and Canon 1577, § 2., C. 1578. Qualifications. The Code requires that both the off- cial and the vice-officials be priests.2° Quoting Canon 626, Noval holds that they must be secular priests. The Canon cited reads as follows: ‘‘Religiosus nequit ...ad.. . officia promoveri, quae cum statu religioso componi non possint.’’ It has already been stated that a religious can not be appointed vicar general unless the diocese has been com- mitted to the care of his religious community.*! a matrimonial trial to prevent a hasty and precipitate decision nullifying the contract. Likewise, a check was organized for the parties involved in the contract, lest through fraudulent cooperation, one or the other refuse 19 Can. 1589, § 2; Can. 655, § 2. 11 Noval, o. c., n. 141. The Judiciary Department of the Diocesan Curia. 69 to answer the summons to court, give false testimony or have recourse to other deception to obtain a favorable sentence.?? The Defender in Sacred Orders Trial. He is also a public official whose duty it is to uphold the validity of an ordination which is contested in the ecclesiastical court. He is a promotor of justice in a specified field of action. This office was instituted through an Instruc- tion of the Sacred Congregation of the Council, issued in the year 1836. The provisions of this instruction, in a general way, forms the basis of the present legislation of the Code in regard to the defender of the bond in a case where the validity of an ordination is questioned. Canonical Requirements for Offices. In these offices as in other offices of the curia, the Code specifies, lays down explicit regulations as to what persons may be chosen, and the moral and mental qualifications requisite for a candidate: (1) The one selected for the office of promotor of jus- tice or defender of the bond must be a priest. (2) As to moral fitness, the Code requires that the candidate enjoy the esteem and admiration of honest men. He must possess a good name. (3) Intellectually, the Code prescribes a knowledge of Canon Law, either a doctor in this science or a good knowledge of the law. Added to this the candidate must be a prudent priest in whom there is a prudently regu- lated zeal for the virtue of justice. (4) The promotor of justice in a tribunal of a reli- gious order should be a member of the order, a priest of good name, a canonist, upright and zealous for truth and justice.t% Presence Requred for Validity of Legal Process. In quoting Canon 1586 at the opening of this chapter and in the paragraphs which followed, the origin and pur- 22 Noval, o..c.,'n. 141. 13 Can. 1589, § 1 and § 2. 70 The Judiciary Department of the Diocesan Curia. pose of instituting the office of promotor was stated. There will arise cases in ecclesiastical procedure in which a contest arises over the validity of a matrimonial con- tract, and consequent obligations, or a contest over the validity of sacred orders and the obligations arising from the reception of this Sacrament. In every such case, the presence of the promotor of justice or the de- fender of the bond, as the case may demand, is required by the Code.'* If the judge fails to cite the promotor, the process is null,® The promotor of justice must answer the citation to the court which the judge issues. Should the promotor appear ‘‘non citato,’’ his presence is effective and the process is thus rescued from nullity and invalidity.'® Having answered the citation, is it necessary that the promotor be present for all the acts and proceedings of the court? Paragraph two of Can. 1587 answers this question in the negative. It is necessary however that the promotor review and examine the acts of the process as drawn up by the appointed notary. Having examined these the promotor or defender, as the case may be, may then, in writing or orally, make any comments and re- commendations which the case under consideration demands.1* Noval interpreting this Canon, states that, after the promotor has acknowledged the citation he may absent himself from all the court sessions, being mindful of his obligations, of course, to carefully examine the record of the process.1® Noval bases this statement on the pre- seription of Canon 1680. Promotor and Defender in a Single Officer. It has already been pointed out that the defender of the bond is simply acting as a promotor of justice in a matrimonial cause or the cause of a disputed ordination. Defending _ Justice and truth when there is an attempt to dissolve 14 Can. 1586. ** Can. 1587, § 2. + Can. 1587, § 1. 78 Noval, o. ¢., n. 141. 16 Can. 1587. a The Judiciary Department of the Diocesan Curia. 71 the sacred bond of matrimony, or the sacred obligations of Holy Orders are but two of numerous possible pro- cesses where the presence of the promotor of justice may be required. Hence the Code permits and suggests that the promotor and defender may be vested in a single officer in the curia. This admonition is quick to follow, however, ‘‘nisi multiplicitas negatiorium et causarum id prohibeat.’’?® Should the promotor of justice be called to act in a matrimonial case, in which there is an attempt to annul the bond, the very nature of the case demands the presence of two distinct officers, a promotor and a defender. The ordinary of the diocese, knowing well the needs of his diocese, will construct this section of his curia according to the needs of his diocese, and at the same time keeping before his mind the will of the Church as expressed in the Code. The Code leaves it entirely to the judgment of the or- dinary as to whether this officer shall be appointed with a certain degree of permanence—‘‘ad universitatem cau- sarum,’’ or merely for a particular and specified cause. These conditions will be specified when the appointment is made, as well as any reservations, limiting the power of these officers which the bishop may deem necessary to make.?° Cessation of the Office. If the see of the diocese be vacated, what is the status of the promotor of justice and the defender of the bond? This question is answered in Canon 1590: $1. Promotor iustitiae et vinculi defensor electi ad univer- sitatem causarum a munere non cessant, sede episcopali vacante, nec a vicario Capitulari possunt removeri; adveniente autem novo Praelato, indigent confirmatione. If the appointment was made as permanent, ‘‘semel pro semper,’’ the promotor of justice will continue to hold office—‘‘sede vacante.’’ Logically then, if the ap- 1° Can. 1588, § 1. *° Can. 1588, Noval, o. c., n. 146. 72 The Judiciary Department of the Diocesan Curia. pointment was ‘‘ ad tempus,’’ for example, for a particu- lar cause, when the cause is decided the office ceases ipso facto. The appointment cannot be recalled by the vicar capi- tular. If an apostolic Administrator be appointed over the diocese and his appointment is permanent, he may recall the appointment. This right is granted in para- graph two of Canon 1590 and Canon 315. The former law grants the bishop the right to remove the officers we are considering for any just cause. The latter citation regulates the rights and honors which accompany the office of permanent Apostolic Administrator—‘‘iisdem iuribus et honoribus fruitur, iisdemque obligationibus tenetur, ac E/piscopus residentialis.’’ 71 With the advent of the new prelate, the promotor of justice and defender of the bond will need a confirmation of their position in office from him. This is not a new election, but rather an approval of their continuance in the service of the diocesan curia. Hence they will con- tinue in office if they are not removed by an express re- call of the appointment. The law imposes the obligation of confirmation on the ordinary of the diocese, the obli- gation of confirming or removing these officers of the curia in the diocese to which he is assigned.?? Tar Notary. The notary is one who, from a series of notes or signs constructs an authentic report of an event to which he was a witness. A notary in the canonical sense is thus defined by Noval: ‘‘est persona publica, creata a publica auctoritate, ut de actis data opera et solemniter coram se gestis, et ab ipso sub forma publici instrumenti, scrip- tis vel subscriptis, faciat fidem publicam.’’ 7% The notary, therefore, is to be considered a public person, appointed by one in authority, and his notes or 21 Can. 315, § 1. 22 Noval, o. c., n. 148. 28 Noval, o. c., n. 1-38. The Judiciary Department of the Diocesan Curia. 73 record has more weight than the report of a mere private person acting without authorization. Notaries, in their legal rating, may be classed as judi- cial and extra-judicial. The former, or judicial notaries, are appointed to record judicial acts, such as an ecclesi- astical trial. The latter, extra-judicial notaries, may be called upon to authenticate other acts or documents such as sale, contracts, wills and similar acts. History. Both the title and office of the notary can be traced back to the Imperial Court of Rome. In the Codex Theodosianus there were a set of laws and deci- sions dealing with the notaries of the imperial Court.** Notaries or chancellors were used in most of the royal courts of earlier times and likewise in the papal chan- ceries and the episcopal sees.”° It is thought by certain writers of history that the seven regional secretaries in the city of Rome were appointed by Pope St. Clement. The special work of these notaries consisted in record- ‘ing the ‘‘acta martyrum.’’ 7° Eccelsiastical Notaries. Various names have been used in the course of time to indicate this ‘‘persona publica,”’ to whom the task was entrusted of constructing authen- tic public records of legal proceedings in their various phases. Such titles as scrinarwus, tabellio, notarius, actu- arwus, cancellarius, secretarius, are quoted by canonical writers. With a more definite terminology in ecclesias- tical law, such as we have today, these various terms have come to have a fixed and definite meaning. The scrinarius is now an archivist. The tabellio re- fers to the cursor of letters. The notarius is the notary, but his duties are extrajudicial acts. The actuarius is the recorder of official reporter of judicial procedure.?7 Though the Code uses the term ‘‘notarius,’’ in describ- 24 Cod. Thed., 6, 16, De primicerio el notariis. ?° Boudinhon—Cath. Ency., Notaries. 26 Wernz, o. c., vol. V., p. 114, note. 27 Noval, o. c., n. 139. 74 The Judiciary Department of the Diocesan Curia. ing the duty to be performed, it adds, ‘‘qui actuarii offi- cio fungatur.’’ °° Previous to the Code, the services of the judicial not- ary, or the actuarius, in ecclesiastical tribunals, were required by the general law. This regulation was made by Pope Innocent III in the Fourth Council of the Lat- eran in the year 1215. To quote from the Decretals: ‘‘De probationibus,’’ (statuit), ‘‘ut tam in iudicio ordi- nario quam extraordinario iudex semper adhibeat aut publicam si potest habere personam, aut duos viros idoneos, qui fideliter universa iudicii acta exscribant.’’ °° This regulation is reaffirmed in the Code, and the validity of the record of the proceedings is dependent upon the presence and authentic report which must be drawn up in legal form by the actuary. Notaries in the Code. Canon 1585 directs the judge ‘Contequam causam cognoscere incipiat,’’ to appoint an actuary, a clerk for the recording of the process of the trial. This clerk, the Code prescribes, is to be selected from the number of lawfully constituted notaries, who are to be appointed by the ordinary of the diocese, fol- lowing the regulations of Canon 873. Should the bishop designate a clerk for the trial, the judge will recognize the appointment and proceed with the hearing of the trial. The Appointment of Notary. The following points from the Second Book of the Code may be quoted here in the consideration of this topic. (1) The bishop is empowered to appoint the notaries in his diocese. The acts and records subsequently drawn up by these notaries are to be regarded as public and authentic.*? (2) At the time of the appointment or later the ordi- 28 Can. 1585. 29, 11, X, De probationibus, II, 19. 89 Can. 1585, § 2. 31 Can. 373, § 1. The Judiciary Department of the Diocesan Curia. 7d nary is free to make whatever limitations he chooses as to the nature of the notaries’ service. He may appoint as judicial, extrajudicial, or merely for certain definite and determined legal acts.?* | (3) If there be a scarcity of clerics in the diocese, the bishop may: appoint laymen to this office. However, in ‘‘eriminalibus clericorum’’ the actuary should be a priest.®* (4) The notaries must be men of good name and above all suspicion.*# (5) The length of the term of office of a notary is entirely dependent upon the will of the one who makes the appointment. Hence, constituted by the ordinary of the diocese, they may be removed or suspended from office by the ordinary or successor or superior. The vicar capitular can act in the matter only with the con- sent of the Cathedral Chapter.*° The Duties of a Notary. Itis the duty of a notary to prepare a written report of the court proceedings, in- cluding the acts, citations, decisions and the sentences of the court. The written report of the proceedings in the court must be given with detailed information as to the place, day, month and year. To those who lawfully make the request ‘‘servatis servandis,’’ the notary will show a copy of his report. ‘The official capacity to act as clerk or in general as a notary is confined to the territorial limits of the diocese of the ordinary who appointed him.*® Cursors AND APPARITORS. The cursor and apparitor are also listed among the | officers in the judicial department of the diocesan curia. Canon 1591 states the nature of the duty which is proper to these offices: ‘* ad acta iudicalia intimandae, nisi alia sit probata tribunalis consuetudo’’; concerning the ap- paritores the same Canon states: ‘‘item apparitores ad 22 Can. 373, § 2. %® Can, 373; § 4. 33 Can. 373, § 3. 86 Can. 374. $¢Can. 373, § 4. 76 The Judiciary Department of the Diocesan Curia. sententias ac decreta iudicist, eo commitente, exsecutioni mandanda.’’ Before giving an interpretation of this Canon a few words on the history will be given. History. In Roman Law the legal title of ‘‘ viator,”’ ‘Capparitor,’’ and ‘‘nuncius’’ is applied to this office.** These officers performed the menial tasks, such as carry- ing messages and reports for the magistrates and sena- tors. Livy refers to the ‘‘viatores’’ attached to the ser- vice of a particular magistrate. The magistrate might order the viator to execute a certain sentence, thus he acted in the capacity of a lector. In the Gallic law the cursor was merely a messenger in the service of a judge. At least this was the position before the Revolution. After the French Revolution, the cursor acted with greater power, conducted the execu- tion of a sentence independent of a judicial sentence or an order from the judge. According to the German law, the cursor and appari- tor exercise the powers of jurisdiction, since according to that Code the execution of a sentence implies juris- diction. In Italian and modern French law these officers prob- ably have only administrative powers. It seems to be the opinion of jurists that the execution of a sentence does not imply the power of jurisdiction. Cursor in Canon Law. The distinction between the office of the cursor and that of the apparitor seems to be very slight. They act according to the order which comes to them from the judge. This order may be the conveying of judicial information, a message from the court to one of the parties in litigation. The judge may commit the execution of a sentence, which he has passed, to the apparitor. Hence the apparitor is to be consi- dered as the material agent who accomplishes the will of the judge. The phrase ‘‘ad sententia . . . exsecutioni mandanda’’ is to be interpreted in the light of the canons ® Smith, Dic). of Antiq. cf. “ viator.” The Judiciary Department of the Diocesan Curia. 77 comprised under the seventeenth title of Book Four of the Code. This title deals expressly with the execution of a judicial sentence. According to the norms of this section, ‘‘ Sententiam execution mandare debet per se vel per alium Ordinarium loci im quo sententia primi gra- dus lata est.’’°® The judge is the true and proper ‘‘ex- secutor’’ of the judicial sentence. One and the same person may be commissioned to act as cursor and apparitor.*® Laymen may be selected for this office unless the case be such that prudence requires the services of an ecclesiastic. The judge of the cause will determine this point according to the nature of the cause. Furthermore, he may even dispense with the ser- vices of these messengers in the court if there exist— ‘‘alia probata tribunalis consuetudo.’’ Such an approved custom or practise would be the use of special or regis- tered mail for the sending out of messages and notifica- tions from the court. A registered letter is quite safe, and its use well enough established to replace the ser- vices of the cursor. The Oath of Fidelity. The Code requires that the bishop make the appointments, to the various offices which have been considered in the preceding pages, in writing. Before proceeding to the duties of their re- spective offices, the officers of the curia make a promise of fidelity in serving the bishop and the interests of the diocese. They will furthermore promise to observe the norms of the law in fulfilling their various duties. The bishop will also exact of the officers in the curia that they hold all official matters as secrets to be kept within the limits of the official household.*° 8 Can. 1920. *® Can. 1591, § 2. 49 Can. 364. 78 The Judiciary Department of the Diocesan Curia. BIBLIOGRAPHY. Acta Sanctae Sedis, Romae, 1865-1908. Codex Iuris Canonici, Neo Eboraci, 1918. Collectanea S. Cong. de Prop. Fide, Romae, 1918. Corpus Iuris Canonict, Richter-Friedburg, Lipsiae, 1922. Benedict XIV, Tom. II, De Synodo Diocesano. Corpus Iuris Civilis, Paul Kreuger, Berlin, 1895. REFERENCES. Analecta Juris Pontificii, Paris, 1858. Bouix, D., Tractatus de Judiciis, Paris, 1883. Bouix, D., Institutiones Juris Canonici, Paris, 1859. Burke, Thomas J., Competence in Ecclesiastical Tribun- als, Washington, 1922. Duargin, Edward Vincent, Reserved Censures, Washing- ton, 1924. Devoti, Joannis, Institutiones Canonicae, Leodii, 1883. Fournier, l’Abbé Edouard, Les Origines du Vicaire Gén- éral, Paris, 1922. Hinschius, Dr. Paul, System des Katholischen Kirchen- rechts, Berlin, 1878. Lega, Cardinal, De Judiciis Ecclesiasticis, Roma, 1890. Leurenius, R. Petrus, Forum Beneficiale, Venetiis, 1752. Chelodi, Joannes, Jus Poenale, Tridenti, 1920. Noval, Juseph, O. P., Comm. Codicis Juris Canonici, Ro- ma, 1920. Maroto, Philippo, Institutiones Iuris Canonici, Roma, 9. | The Judiciary Department of the Diocesan Curia. 79 Ojetti, Bendetto, De Romana Curia, Roma, 1910. Pellegrino, D. Abb. Carolo, Prasia Vicariorum, Venetis, 1706. Reiffenstuel, Jus Canonicum Universum. Thomassinus, Vetus et Nova Ecclesia Disciplina, Roma, 1706. Trudel, Rev. P., S.S., Dictionary of Canon Law, Herder, 1919. Primmer, D. M., Manuale Juris Canonici, Friburgi Bris- goviae, 1922. Wernz, Francis X., Jus Decretalium, 1924. Pallavicini, P. Sforza, Histoire de Concile de Trente, Montrouge, 1844. Vermeersch-Creusen, Hpitome Juris Canonici, Mechlin, 1924. Smith, William, Dictionary of Greek and Roman Anti- quities, London, 1875. ~ Catholic Encyclopedia, 15 vols., New York, 1917. Schmalzgrueber, Jus Ecclesiasticum Universum, Romae, 1843-1845. | ray ¥ ‘ nents Pe ata ive ) FAA. c ie | UntIversivas CatHorica AMERICAE Wasuinetonu, D. C. Sacka FacuLttTas JURIS CANONICI 1924-1925 No. 26. CANONES (81) nt Ne rah Att un wh He | nae Ne Ai AIRY Ws OLN) Y DEUS LUX MEA CANONES QUOS AD DOCTORATUS GRADUM IN IURE CANONICO Apud Universitatem Catholicam Americae CONSEQUENDUM PUBLICE PROPUGNABIT HENRICUS FRANCISCUS DUGAN SACERDOS DIOECESIS INDIANAPOLITAN AE IURIS CANONICI LICENTIATUS HORA X A. M. DIE XVIII, MAIT A. D. MCMXXYV. CANONKES. De Notione et Divisione Juris Canonici. . De Collectionibus Canonum usque ad saecu- lum IX, presertim Latinis. . Collectio Pseudo Isidoriana. . De Decreto Gratiani. . De Collectione Decretalium Gregorii IX. . De Origine et Editione Novi Codicis. Boox I. . Canones 8-11. De Promulgatione Legum in Keclesia. . Canones 15-16. De Legibus Irritantibus seu Inhabilitantibus. . Canones 17-20. De Interpretatione Legum Eeclesiasticarum. . Canones 25-80. De Consuetudine. . Canones 31-34. De Temporibus Supputa- tione. . Canones 12-14. De Legis Canonicae Sub- iecto. Boox III. . Canones 738-744. De Ministro Baptismi. Canones 777-779. De Collati Baptismi Ad- notatione et Probatione. . Canones 814-819. De Missae Ritibus et Ce- remoniis. . Canones 820-823. De Tempore et Loco Mis- sae Celebrandae. Canones 853-857. De Subiecto Sacrae Com- munionis. Canones 858-866. De Subiecto Sacrae Com- munionis. . Canones 867-869. De Tempore et Loco quo Sacra Communio Dis- tribui Potest. (84) XX. XXII. AXLE XXIII. XXIV. XXYV. XXVI. XXVIT. XXVIII. XXIX. XXX. XXXI. ALT XXXITT. XXXIV. XXXV. XXXVI. Canones 871-874. De Ministro Sacramenti Poenitentiae. Canon 883. De Potestae Audiendi Confes- sionum pro Sacerdotibus in Maritimo Itinere. Canon 884. De Absolutione Complicis in Peccato Turpi. Canones 1043-1044. De Potestate Dispen- sandi ab Impedimentis Ma- trimonialibus Urgente Mortis Periculo. Canon 1045. De Potestate Dispensandi ab Impedimentis Detectis cum Omnia Parata Sunt ad Nup- tias. Booxs ILV-V. Canones 2195-2198. Canones 2199-2207. Canones 2214-2219. Canones 2257-2267. Canones 2278-2285. Canones 1556-1558. Canones 1552-1555. Canones 363-365. Canones 361-367. Canones 1580-1584. Canones 1596-1590. Canones 1572-1574. De Natura Delicti eius- que Divisione. De Imputabilitate De- heti. De Natura Poenae Kc- clesiasticae. De Excommunicatione. De Suspensione. De Foro Competent. De Judiciis. De Curia Diocesana. De Vicario Generali. De Auditoribus et Rela- toribus. De Promotore Justitiae et Defensore Vinculi. De Judice. Roman Law. XXXVII. The Three Grand Periods of Roman Law and some of the General Principles of Roman Law. (85) XXXVITT. XXXIX. XL. XLI. XLII. XLII. XLIV. XLV. XLVI. XLVILI. XLVITII. XLIX. L. LI. LIL. LUI LIV. LV. LVL. LVII. LVIII. LIX. LX. The Various Books of the Corpus Iuris Civ- ilis considered as to Source and Content. Personality Defined and the Essential Condi- tions for Personality in Roman Law. The Commencement and End of Personality. The Modes of Enslavement. The Release of a Slave. Roman Conception of Marriage. Matrimonial Impediments in Roman Law. Divorce in Roman Law. The Paternal Power. Tutorship. Curatorship. INTERNATIONAL Law. The Nature and Origin of International Law. The Fundamental Principles of Interna- tional Law. The Non-Territorial Property of a State. Sources of International Law. The Diplomatic Agents of a State. Piracy. The Monroe Doctrine. Extradition Rights. Consular Service for a State. Modes of Setling Disputes Amicably. General Rights and Obligations of States. The Advantages of Leagues and World Courts for States. Vidit Sacra Facultas: Puiiprus BERNARDINI, S. T. D., J. U. D., Decanus. Lupovicus H. Mortry, s. T. D., J. c. p., a Secretis. Vatentinus T. ScHaar, 0. F. M., J. C. D. Francesco Larpone, §. T. D., J. U. D. MaNnoeEt DE Outviera LIMa, L. H. B. Vidit Rector Universitatis: M T'nhomas J. SHAHAN, S. T. D. (85) BIOGRAPHY The writer of this dissertation, Henry Francis Dugan, was born in Indianapolis, September 30, 1889. His pri- mary education was received in St. Anthony’s Parochial School of Indianapolis. He was a student in Manual Training High School in the same city for two years. His academic course was completed at St. Mary’s Col- lege in Kentucky, under the Resurrectionist Fathers in 1910. He spent six years at St. Meinrad Seminary, St. Meinrad, Indiana, where he was ordained priest in the year 1916. For four years he served as curate at the Church of the Assumption in Evansville, Indiana, and taught in the High School during that time. In 1920 he was appointed to teach Philosophy and History in St. Mary-of-the-Woods College, St. Mary-of-the-Woods, In- diana. In the following year he was made Head of the Department of Economics and Social Science in that College. In the years 1921 and 1922 he attended the Summer Sessions at Columbia University, New York, registering in the School of Economics. In the fall of 1923, he entered the Catholic University of America and registered in the School of Canon Law. In November, 1923, he received the degree of Bachelor of Canon Law, and the degree of Licentiate in Canon Law in June, 1924. (87) AL at Fis nie sf Me ; ‘he ¢ i acd ft he at th j pear a i hooray sl PE iors ane i Me 1 yaaa Gt aM Ae A