Question VI: What solemnities a regular prelate, acting in judgment, is bound to observe

The Seraphic Doctor SUPPOSES, in his exposition on Eccles. fol. 332. col. 2., that judicial acts can take place among Regulars, not only over subjects but even over prelates, so that if they are wicked or less suitable, they may be corrected and removed — which doubtless should be done with due order preserved, not clandestinely, or in some unknown manner; otherwise Regulars, by reason of their profession of the Religious life, would be in a worse condition than seculars, against whom no grave sentence is anywhere said to be passed except according to the strict points of the law.

YET since that luxuriant pomp of ceremonies, customarily observed in secular courts, befits neither poverty nor the Religious state, several Popes have granted to Regular prelates that, setting aside the minutiae of the law and rejecting the whole apparatus of subtleties and legal niceties, attending to the simple truth of the matter, they might proceed de plano.

THUS first Innocent III. After willing in the General Lateran Council can. 8. and cap. 4. that certain things of the common law be observed in judgments that are not notorious, so that first there be the inscription before the accusation, and the charitable admonition before the denunciation, and finally the clamorous denunciation arising against a Prelate before the index be made¹ prior to the inquisition, he adds at §. ultimo: This Order, however, we do not believe must be observed everywhere with regard to Regular persons, which, since it requires cause, can more easily and freely be removed from their administrations, in which words the Gloss has, V. Praesent., that around seculars the order of law be observed, but around Regulars not everywhere. ¹ N. Editor's note: the print reads 'ad indiciis autes' (pg-704 of the 1655 scan); the phrase is corrupt in the print itself and could not be emended with confidence, so it is rendered as 'before the index be made'.

LIKEWISE Boniface VIII., at Rodericus, in coll. Privil. fol. 54. He decreed thus: Boniface, etc. To all the brothers of the Order of the Friars Minor, etc. We grant that they may freely proceed to punishments and corrections, and the Prelate, etc., with the minutiae and points of the law set aside, according to the approved customs generally made and to be made by the institutes of the Order.

LIKEWISE cap. Ea quae, §. quod si Abbas de statu Monachi, says: if a parricide be found, or one otherwise deserving of removal, let him be removed without the noise of judgments: Hence many prelates of Religious Orders, or others delegated to render judgments, supposing all things to be permitted them at their pleasure, pass over more freely those things that are of the law, even substantially, and that concern the intimate truth of the matter, as our Bictus testifies, quaest. 8. num. 5. V. appellare, in compendio Privileg., and P. Elizeus, in rerum criminal. methodo, tract. 3. quaest. 1. num. 1. cum quibus.

I ASSERT, that Regular judges are bound to observe all the substantial, or essential, solemnities of the law.

It is PROVED first, because what pertains to the justice of the law, any judge whatever is bound to observe; such are the said solemnities, as to precede with citation, to require the necessary proofs, etc. Therefore.

It is PROVED second from the sense of those terms of law, de plano, sine strepitu, absque rimulis, et apicibus. For de plano in the elements Dispendiosam, de iudiciis, and in the Gloss, ad cap. Olim, de accusat., signifies to give judgment from a plain inspection of the matter, not pronouncing judgment from the tribunal with the joinder of the issue, the exposure of the libel, etc. Likewise sine strepitu signifies that that great apparatus of witnesses, advocates, or procurators be cut off, by whose caviling and clamor the truth is not infrequently entangled in various labyrinths; Likewise absque rimulis, etc., that those subtleties of the law and sharper points, by which the truth is often blunted, be passed over.

It is CONFIRMED from Clement V., successor of Boniface VIII., who, explaining the aforesaid privilege granted to Regulars, loco citato, indicates six things to be omitted in judgments of Regulars, because they contribute little to the truth of the matter; but four to be admitted, since they more nearly touch the substance of the judgment, as the Gloss notes there, V. Saepe.

FIRST, then, the said Pontiff decrees that the Regular Judge require neither the libel nor the joinder of the issue.

SECOND, that he may proceed in vacation time.

THIRD, that he cut off adjournments, and repel dilatory and frustrating appeals.

FOURTH, that he restrain the quarrels of Procurators and the superfluous multitude of witnesses.

FIFTH, that, citing to the definitive sentence, he not be bound to add the word peremptorie.

SIXTH, that the petition of the Plaintiff and the Defendant, which he requires at the very beginning of the suit in writing, or if you refuse in words, be forthwith reduced to writing. But if in these cases the solemn judicial order be observed by consent of the parties, the process shall stand, etc. This position, however, rather belongs to what must be said below.

BUT since it would be prolix to repeat all these in each Bull or grant of the Popes, in their place the said terms of law have sufficed: de plano, sine strepitu, etc.

FOUR things, however, are to be observed from the same Pontiff in each judgment of Regulars.

FIRST, that the judge admit the necessary proofs, and not exclude the citation and the taking of the oath, both de calumnia et malitia and concerning the truth to be said.

SECOND, that he admit the positions, as necessary for arriving at the truth; and fix the term both for giving the positions and for exhibiting the articles and all the acts, nor may they be produced further after the renunciation in the cause, unless each party in turn remit.

THIRD, that he examine the parties, whether ex officio or at their instance.

FOURTH, that he cite to the definitive sentence, which he is bound also to render in writing.

From these positions you have what was the mind of Boniface VIII. in the aforesaid privilege, when he commands that the Regular Judges may freely proceed with the minutiae and points of the law set aside: where he does not will that those solemnities be omitted that pertain to the substance of the act, but only those that contribute to the adornment or pomp of the cause; for as P. Elizaeus, cited above, notes, quaest. 1. num. 15., although subtleties may sometimes come under the name of solemnity, still not vice versa: every solemnity is not understood under the name of subtlety or minutia.

BESIDES, where the words are ambiguous in some law, favor must rather be shown to the defendant, cap. Cum sunt partium, de reg. iuris in 6. leg. favorabiliores, ff. de reg. iuris, et leg. Atrianus, ff. de actione, et obligatione; thus also all Jurists assert with one mouth; but the Privilege of Boniface, whose words are ambiguous, if understood so that it would be licit to omit even things that concern the truth of fact, would be to the ruin not only of the matter but not rarely of the innocent person himself; since thus, neither by appearing, nor defending himself, nor by other licit means of defense could he protect himself: Therefore.

ALTHOUGH the Privilege of Boniface is understood by all to be extended more widely than the concessions of other Pontiffs, it nevertheless contains nothing further, except that he wills that in criminal causes also one proceed civilly de plano, not sitting at the tribunal in the manner of a secular judge, observing those minutiae or subtleties of the law that disfigure the state of Religious and sometimes cast the truth itself into peril: The other concessions, however, speak of a civil cause, so that in it one proceed civilly de plano.

From these things I desire to conclude, that the judge is always bound to examine the truth of the matter to its utmost point in every act whose justice depends on it: And this is true, whether the sentence be interlocutory, which takes on the settling of some circumstances of fact, such as may be the torture of witnesses, ejectments, or adjournments; or definitive, which, all things maturely considered, bears the ultimate sentence on the principal matter, or sometimes on a necessary one, at whose pronouncement in that case the authority of the one pronouncing expires; or finally the sentence of precept, in which the judge, having cognizance of the crime of the Accused, either from his confession or from the notoriety of the fact, condemns him by precept or prohibition to punishment: for although many things are not of the substance of such a judgment, there is nevertheless a substantial order to be observed in it, that the guilty party first confess himself a debtor before he be compelled to payment, and that his crime first be able to be concealed by no tergiversation before he be condemned to condign penalties; yet if the accused be contumacious in acknowledging himself a debtor, let the judge of whatever sort be commanded, without further proof, that he pay; the money once paid is not to be sought back on this account, provided he be truly a debtor, even if the precept was not just.

SHOULD you ask what things are substantially necessary for a rendered sentence to stand. I answer first, that it is necessary that it be reduced to writing, rendered, and rendered; and that this be manifested in the writing itself, cap. fin. de sent. et re iudic. in 6. For since processes are wont to be undertaken from rendered sentences, that they may be better proved and all rashness of fact avoided, it has pleased that without writing there be none; which is so true that by consent of the parties it cannot be omitted.

IT is nevertheless received by custom in many places, that the Judge read and pronounce the sentence through the Aquarius, and he himself pronounce only the word of condemnation or absolution; thus Clarus quaest. 95. cum Bicko 145. num. 6., even though the law provides otherwise, so that the Gloss, in cap. etsi sententia de sent. et re iudic. in 6., says the sentence will be null unless it be rendered and read by the judge himself; yet more honored Judges are excepted, such as Bishops and Prelates of great name, who have the sentence duly pronounced by another; Likewise those who are blind are excepted,¹ since they cannot read, yet are held to pronounce judgment, as is had in leg. caecus, ff. de iudic. et leg. certi, Cod. eodem: Better, however, in these cases does custom stand, which is the best interpreter of the laws. ¹ N. Editor's note: the print reads 'exipiuntur noniter caeci'; 'noniter' is a corrupt word, probably for 'item' (likewise), and it is rendered accordingly.

IT is nevertheless not necessary that an interlocutory sentence be committed to writing, but it suffices that the judge interpose, and then indicate to the Notary, that he commit to writings what he has interposed; that however this is not necessary for anything else except that the judge be the better believed, the Gloss teaches in the dictum, cap. fin. V. diffinitiua; and that the same can be understood of the precept, although rarely does the necessity of it in writings occur.

SECOND, it is necessary for the value of the sentence that the absent accused be cited, and brought before it, ex Clem. de verb signific. and the other laws cited above. Then let it be published within the term of the citation: But if the Accused act contumaciously and refuse to appear, let it be intimated to him in every better manner, and be affixed to the door or gates of his residence, that thus it may affect the accused as far as can be done. Moreover the term of citation is commonly judged to be ten days.

THIRD, in the sentence is required the determination of the penalty, leg. in summa, ff. de sentent. et re iudic.; yet if one has been established by the law for such a delict, it suffices that it be intimated to the accused, thus several, cited at Elizzaeum, quaest. 16. num. 11. Also some require that the penalty be such, according to the gravity or lightness of the delict, that it not be against penalties limited by the Canons, laws, or custom, otherwise the sentence will be null; because in these cases the cognition of the cause is credited to the judge, but not the diminution or augmentation of the penalty: Vide leg. 1. §. 1. ff. ad S. C. Turpil. There can nevertheless be some causes inducing the Judge to judge a lighter or graver penalty; these the sentence ought to express; and thus the sentence will be valid.

FOURTH, it is required for the sentence that it be professed in word of the present, namely, I absolve, or I condemn; then that it be sealed with the seal of the office, with two subscribed; all these things, however, are to be transacted with that maturity of time, that room be given to the accused for defense, for the advocacy of witnesses, etc., otherwise he will be able to appeal on account of the brevity of the term, as will be said in the following question.