Part 2 — THE COUNCIL AND THE ROMAN CONGREGATIONS.[35]

THE COUNCIL AND THE ROMAN CONGREGATIONS.[35]

The Council of Trent was the eighteenth general council, and terminated its sessions in the year 1562. None had preceded it for upward of a century, and during the three hundred years which have since elapsed the church has failed to witness one of these august assemblies.

Hence it has been objected that, since the sixteenth century, the safeguards of truth and liberty have been diminished, and that the absence, in modern times, of those councils, which were so frequent during the first ages, manifests an intention on the part of the popes to exercise their authority with the utmost rigor, and to govern alone, without the assistance of those lights to which their predecessors did not deem it humiliating to appeal.

This imputation is, however, contrary to the truth. During the first three centuries there was no general council. Since then, as all admit, the sovereign pontiffs have had the sole right to summon these assemblies, and have been the sole judges as to when this should be done. This power was conferred upon them with the especial design that they might use it without incurring any blame from those who never were made their judges. In the exercise of it they are influenced by reasons which we cannot estimate. They know better than any one else the wants of the church, the condition of the world, the inconveniences, the obstacles, and the dangers which oppose such an assemblage. Possibly, also, they perceive in history certain reasons which modify their action. In modern times the secular power loves to meddle with the affairs of the church. It desires to make religion a handmaid of politics, and, thoroughly enamored of its own independence, it would sink to the lowest limit the freedom of the church. Its manifest impiety, its sceptical principles, which, under the names of toleration and liberty of conscience, have penetrated its governments, have rendered its interference far more disastrous in modern times than at any former period in history. The kings of the middle ages did indeed wish to make the church serve their own ends, but they, at least, were in their turn faithful to her. They held fast to her dogmas, and submitted humbly to her discipline. Their combination was to rule, not to overthrow and destroy. But such is not the temper of these modern governments, all or nearly all of which seek to hold religion itself in subjection. For this purpose they establish national churches, which are attached to the universal church by a tie which may easily at any time be broken. They exalt the authority of bishops, that thereby they may diminish that of popes. They exhibit a desire to lodge the government of the church in councils, and to use these assemblies for the introduction of extensive modifications into ecclesiastical law. The councils of Basle and Constance showed indications of these projects, and it was through no fault of the secular power that the Council of Trent did not realize them.

Thus also is explained the laudable design of the sovereign pontiffs in contending against these disastrous tendencies, and in showing to the world, by long experience, that the fundamental power in the church rests with them. They have wished to remove from princes the means upon which they had so often relied for the overthrow of ecclesiastical authority. This is the reason why the popes, during the last three centuries, have convoked no council, but have sought from different institutions such assistance as they have required.

It is for the purpose of affording this assistance that the Roman congregations have been established. Their origin may be found in those consistories of cardinals which, from the ninth to the sixteenth centuries, constituted the permanent senate of the pontiff, and assembled twice or thrice a week in his palace, to consider measures for the reformation of both clergy and people, to receive the complaints of all classes of the faithful, and to decide the controversies and disputes of the entire world. These consistories were themselves the offspring of those Roman councils which were so frequent during the first ten ages of the church; for it may be well remarked that the church, though based upon the supreme authority of the popes, has never neglected those human institutions which could increase its influence or lighten the labors of its head. Its principles have always been the same, but it has suited the method of their application to the necessities of each succeeding age.

Like the councils, the consistories were composed of men renowned for their faith, their learning, and their sanctity. The sovereign pontiffs continually added to the college of cardinals the most illustrious of the clergy, and called to Rome, from all quarters of the globe, those religious, those ecclesiastics, and those prelates whose assistance they deemed most useful in the government of the church. These men were absolutely independent of the secular power, and totally secluded from its influence. Living in constant intercourse with the pontiff himself, they enjoyed all necessary liberty; they exercised for life the powers confided to them; they had no worldly care or fear, and they enjoyed a rank from which they could not be deposed. They spent their time in prayer, in charitable works, in the study of sacred literature, and in the discharge of their duties. Where could be found more intelligence, greater learning, or more ample guarantees for the preservation of truth?

The principle of the church, that her power, though essentially resident in the person of one, should be disseminated through the instrumentality of many, is applicable to all degrees of the ecclesiastical hierarchy.

Thus, the bishop and his chapter are considered as forming but one body, while yet the decretal novit of Alexander III. secures to bishops the management of their own churches without the consent or co-operation of their brethren. Thus, also, the popes have near them a body of cardinals, an illustrious senate, composed of the most learned and holy men of the whole world, who assist them in the direction of the church. This senate, collected in one assemblage under the presidency of the pontiff, forms the consistory, at whose sessions the most important causes are frequently determined.

The extension of the faith, the multiplicity of appeals to the holy see, the more complicated developments of modern life, and the increased entanglements of the church with the world have, however, rendered necessary a more frequent intervention of authority, and added vastly to the number of those causes on which the holy see has been obliged to pronounce judgment.

The government of the church is by far the most extensive of the governments of the earth. It is not bounded by the limits of any particular kingdom, but reaches throughout the globe, as well to those countries whose heathen populations demand its constant care, as to those Catholic states which are directly subject to the jurisdiction of the apostolic see. From all these places innumerable cases constantly arrive at Rome, each of which demands, for its proper determination, a profound examination. These are not like cases which are submitted to the civil tribunals, in which material interests only are at stake, and for which a temporary solution is sufficient. They are questions of doctrine, which demand an answer rigorously exact, since these answers determine faith. They are questions of administration, which interest secular institutions, great personages, often entire provinces and kingdoms. They are questions of conscience, upon which depend the peace and salvation of souls. These decisions, whatever they may be, will always be received with an unqualified respect and a perfect docility, which impose upon their authors an obligation to exercise the utmost care. And yet it is also necessary to judge quickly, for the affairs are often of a vital importance which will not brook delay.

It would be, of course, impossible for the sovereign pontiff to examine personally all these various matters, and to decide upon them in a single assembly. Hence the college of cardinals has been divided into a certain number of sections, to each of which pertains the examination of some particular class of cases. This division did not take place all at once. It grew into existence by the successive erection of different congregations instituted as fast and in such proportions as necessity seemed to require.

That which is especially remarkable about these institutions is the protection which they give to private interests, since the submission of each affair to the scrutiny of many persons is a security for knowledge, independence, and impartiality in its decision. Moreover, these institutions preserve the customs and the character of an ecclesiastical government. We have mentioned the relationship of bishops and their chapters. Every chapter was subdivided into commissions, to each of which a separate part in the administration of the diocese was assigned. One had the spiritual and scholastic direction of the episcopal seminaries; another, that of the temporalities; and still another, the examination and reception of the candidates for the priesthood. These commissions bear a certain resemblance to the Roman congregations. The latter were established by the voluntary action of the sovereign pontiffs. The Council of Trent was not occupied with them. It regulated diocesan administration as it believed useful, but it left the administration of the universal church to the wisdom of the popes; so that precisely at the time when its enemies think they can detect tendencies on the part of the holy see to absolutism, the pontiffs without constraint, but of their own accord, organize those institutions which are the best safeguards against the dangers of absolute power.

In reckoning up the number of those who, under different titles, take part in these labors, we discover that the Roman congregations form an entire assemblage of five hundred persons, all illustrious for their piety and learning. Many councils have been less numerous. These constitute a sort of permanent council, which is in daily communication with all the churches of the world, and which, not being limited in duration, can bring to the questions which are submitted to it all desirable deliberation. Perfect order presides over its labors. Like the councils, it is divided into sections, to which the members are assigned according to their peculiar aptitudes. These sections, which are the congregations properly so called, are permanent also, and consequently are enabled to devote themselves to the study of all the branches of ecclesiastical administration for the purpose of determining its principles. Finally, like the councils themselves, they draw their authority from the sovereign pontiff, and their decisions are subject to his approval.

The attributes of these congregations are manifold and various. They may be arranged under three principal heads: administrative, deliberative, and judicial.

The Roman congregations are the supreme directors of ecclesiastical administration. The sovereign pontiff adopts no measures which affect the government of dioceses, the communities of religious, the missions, or the ceremonies of the ritual; he grants no faculties or dispensations; he fills no important position in the church, until the congregation to whose sphere the case belongs has been summoned to consider it. Often, indeed, the congregation itself first perceives the necessity to be provided for. If it be a matter of small moment, the president or secretary of the congregation, either by virtue of his office or by special concession, will render a decision. If the matter is of higher consequence, it is previously submitted to the pope, and a decision rendered, as it is called, ex audentia summi pontificis. If it is of the highest character, it will receive special care and be considered in a full congregation. In every case these acts derive their administrative power from the authority given to the sovereign pontiff over the church. They use this power, manifesting itself in council, with the assistance of renowned and holy men and in a manner worthy of him who made the world with number, weight, and measure.

These congregations have also to resolve the doubts which arise upon different points of canon law. Sometimes propositions in the abstract are submitted to them for the determination of discipline or ceremonies; sometimes they consult upon the application of a general law to some particular case which does not seem to come entirely within its provisions. They occupy in the church the place of a central light to which every one, prelate or layman, king or simple citizen, may come for illumination. They are not only the adviser of the sovereign, but of all his subjects. No institution of the secular power can be compared to them. He who has doubts upon the interpretation of civil law is able to consult its doctors and professors only in detail. The council of state has no power to respond to individuals who interrogate it; its advice is given only when the government demands it. The courts can render only concrete, particular decisions upon stated cases. More liberal than the state, the church holds its wisdom at the disposal of every conscience. It responds to all, and, without regard to the dignity of persons, it investigates with the same care the questions they propound; for it always acts for the salvation of souls, and considers every soul redeemed by the blood of Christ as of infinite price.

The method of procedure in these deliberations shows the care which the church exercises over every matter of this nature. The question is first examined and discussed in a "consultation;" which document is referred to all or a portion of the members, according to the nature of the affair and the usages of the congregation. The consultors are advised with. The question is submitted to the judgment of eminent cardinals united in full congregation. The decision is laid before the pope, whose approval must be obtained before its promulgation. Then this decision becomes an authentic interpretation of law, not merely on account of the official authority of the congregation, but on account of the approbation of the sovereign pontiff. It possesses legislative authority and has the force of law. Further on we shall see that although these congregations, being officially invested by the holy see with the right of interpreting law, render definitive decisions which are indisputable and cannot be raised by any other authority, yet they are not thereby to be considered as infallible. Their judgments are obligatory because supreme, not because they are infallible.

Finally, these congregations are the final tribunals for the determination of ecclesiastical causes. Sometimes these causes are brought by way of appeal from the decrees and sentences of the ordinaries of different places. Sometimes the parties submit directly to their decision questions never before raised at an inferior tribunal. All these congregations possess judicial powers, and are able to resolve contested cases. The chief of those to which appeals are taken are, however, the Congregation of the Council and the Congregation of Bishops and Regulars. The causes thus submitted are both civil and criminal. The Congregation of the Holy Office is the supreme tribunal for the crimes and misdemeanors which concern faith, such as heresy, polygamy, detention of prohibited books, infraction of fasts, the celebration of mass, and the administration of the sacraments by men who are not priests, the public veneration of unbeatified dead, and the superstitions of astrology and false revelations. The Congregation of Bishops and Regulars is the ordinary judge of appeals in those criminal causes which do not come under the jurisdiction of the Holy Office. The Congregation of the Council determines those cases which are specified by the Council of Trent.

These congregations, fifteen in number, are as follows:

1. The Congregation of the Holy Office, established by Paul III.

2. The Congregation of the Council, established by Pius IV.

3. The Congregation of the Index, established by Leo X.

4 and 5. The Congregation of Bishops and Regulars, established by Gregory XIII. and Sixtus V.

6. The Congregation of Rites, established by Sixtus V.

7. The Congregation of Schools, established by Sixtus V.

8. The Congregation of the Consistory, established by Sixtus V.

9. The Congregation of the Examination of Bishops, established by Clement VIII.

10. The Congregation of the Propaganda, established by Gregory XV.

11. The Congregation of Ecclesiastical Immunities, established by Urban VIII.

12. The Congregation of the Residence of Bishops, established by Clement VIII. and Benedict XIV.

13. The Congregation of Indulgences, established by Clement IX.

14. The Congregation of Extraordinary Affairs, established by Pius VII.

15. The Congregation of Oriental Rites, established by Pius IX.

The first of these congregations, as well in the order of their importance as of their origin, is that of the Holy Office. The principle upon which it is based, although violently attacked in our day, is certainly incontestable. Man has no right to propagate error; for error is an evil which causes public disturbance and disorder, and is especially dangerous to the ignorant and feeble, of whom the greater part of mankind is composed. Civil tribunals and temporal governments never hesitate to use this right as one necessary to their self-preservation. It is not, therefore, surprising that the church claims it, since it is a perfect society, and owes to itself the duty of self-protection. Rather should it exercise this right with the most unquestioned authority, being itself infallible, and able to discriminate with absolute exactness between truth and error.

Twenty years before the conclusion of the Council of Trent, by a bull dated July 2d, 1542, Pope Paul III. established the Congregation of the Holy Office, composed of six cardinals, for the increase and defence of the Catholic faith. The successors of Paul III. confirmed this congregation and increased the number of its members. Sixtus V. solemnly recognized its existence in 1588, in his bull Immensa Æterni. This congregation is usually presided over by the pope himself.

The Congregation of the Council was established by Pius IV., in order to carry into effect the decrees of the Council of Trent, and received from Sixtus V. the faculty of interpreting, with apostolic authority, all the disciplinary canons of that august assembly. The Council of Trent was bound by no precedents in regulating particular points of discipline. It reviewed the whole body of canons, confirming whatever in the former law ought to be preserved, completing what was lacking, and publishing a full code of ecclesiastical discipline. In spite of the care with which all these new dispositions had been made, difficulties soon began to arise as to their interpretation and application. The council had foreseen this, and left it to the sovereign pontiff to provide for the necessity. On this account, the pope instituted a permanent tribunal, composed, at the outset, of those cardinals who had assisted at the council, who understood its spirit, and knew how best to preserve and transmit its traditions. This was the Congregation of the Council. The religious orders already possessed an analogous institution. That of Citeaux had always had some one power charged with the duty of interpreting the rule. A similar tribunal is indispensable in every well-ordered state. It guards the law from the deviations of custom, and the abuse of private interpretation. It affords to it unity and fixedness. Every modern government has its supreme court of appeals, which exists almost solely for this object. But the institution of these latter is comparatively recent, while the church has possessed hers for many ages, and, in fact, gave to those of the state the first impulse and example.

The Congregation of the Index was established by St. Pius V. Its powers were afterward extended and confirmed by Gregory XIII. in 1572, by Sixtus V. in 1588, by Clement VIII. in 1595, and by other sovereign pontiffs. The principle upon which its authority reposes is indisputable. In every age the church has restrained the propagation of false doctrines and prohibited the perusal of such books as were dangerous to faith and morals. The invention of printing, in 1450, constrained it to watch with increased solicitude for the accomplishment of this duty. In 1513, the fifth Council of Lateran forbade the publication of any book without its previous examination by the ordinary of the place. The efforts put forth for the spread of Protestantism called for efforts still more vigorous in defence of the church. The Council of Trent reënacted the laws concerning the Index. It published the ten rules which are now regarded as the germ of all modern legislation concerning the press. The establishment of this congregation was but the organization and practical realization of those principles which the church has always recognized, and of which all states to-day admit the necessity.

The Congregation of the Index examines books and forbids those which are false and immoral. Christians have need of some learned and impartial authority to designate for them such books as they ought not to read, and all sincere men admit the usefulness of this warning; for many books are certainly unprofitable and injurious to every one. Even though civil governments have criticised the rules of the Index, they have not hesitated to adopt and use them as the nucleus of their legislation concerning the press. The oath imposed upon printers and booksellers, the deposit of a copy of each work before it is offered for sale, the obligation of placing upon the title-page the name of the printer, and of the signature of the writers to articles in newspapers, are all embodied in the rules of Clement VII. The prescriptions of the Index forbid the distribution of manuscript and printed books which have not been duly approved, in the same manner as the state prohibits those which have not been duly stamped; except that the church has not invented stamps, nor does a revenue result from its prescriptions. Moreover, the state demands an approbation, or, in other words, exercises a censorship, which, though now very greatly decried, is still enforced in regard to plays, and, when occasion demands, to other publications also. There is merely this difference, that the church causes its books to be examined by bishops, by cardinals, by men who are at once learned and impartial, while civil governments confide this responsibility to men who are often more ignorant and less careful of morality than the authors whom they control. The state has indeed adopted the institution of the church, but it has greatly perverted it.

The decisions of this congregation are binding in all places; not because the tribunal is infallible, but because it is supreme, and because the popes have extended its authority over the whole church. Some, like the Gallicans, have claimed the validity of their contrary usages; but no custom can avail against law, especially when it is universally acknowledged that the power of the lawgiver extends over the whole world, and that no person, whatever his rank, or titles, or privileges, is exempt from its decrees.

The Congregation of Bishops was established by Gregory XIII. The Congregation of Regulars, which was afterward established by Sixtus V., was, at a still later day, united to that of Bishops. This congregation, which is one of the most busy of them all, occupies in the church a sphere analogous to that of a council of state. It possesses administrative faculties. It deputes visitors apostolic to different provinces, appoints vicars in dioceses whose bishops become incapacitated, and sends forth religious to visit the houses of their several orders. It is the natural protectress of charitable institutions. It approves of the sales, exchanges, and pledges of the property pertaining to churches and monasteries. It has also deliberative attributes, and decides upon questions submitted to it by bishops, religious houses, and institutions; except such as may involve the interpretation of the canons of the Council of Trent. It has prepared the greater part of the bulls which have been issued during the past three hundred years. In short, it exercises an administrative jurisdiction over, and decides disputes which arise between, different churches, bishops, chapters, orders, and religious, and whatever other matters of controversy directly concern the clergy. Its prompt method of procedure causes even lay people, who voluntarily submit their cases to Rome, to prefer its jurisdiction. It does not adjudge according to the vigorous strictness of the law, but endeavors, as far as possible, to appease the parties and reconcile their disagreements. Appeals in criminal cases, except where the offence is within the peculiar cognizance of the Holy Office, are also brought before this congregation.

We are not able to examine each of these congregations in detail. All possess the same characteristics of wisdom and prudence which distinguish every institution established by the popes. The Congregation of Rites was organized for the preservation of traditional vestments, liturgies, and worship, and to prevent that incessant change which degrades state ceremonial, and often rashly increases its expenses. The Congregation of Schools corresponds to our boards of public education; though the latter are of extremely recent origin, while the former has subsisted since the age of Sixtus V. The Congregation for the Examination of Bishops receives testimonials concerning the doctrine and habits of candidates for the episcopate. It fills the place of a court of inquiry, from which proceed nominations of public officers, even of the highest rank; where influences of every kind antagonize each other; where titles are forgotten; and where the aptitude of every candidate, intellectual and moral, is carefully scrutinized.

These various congregations become, however, safeguards of truth and freedom, not only by the variety of their faculties, but also by their internal structure and their methods of procedure. Each of them is composed of a cardinal-prefect, of a certain number of cardinals, and a secretary. To this the Congregation of the Holy Office, which is presided over by the pope himself, forms an exception.

The prefect is charged with the arrangement of the business of the congregation. He manages the preparation of causes prior to their discussion. He submits them to the examination of his colleagues, and presides at their deliberations. After the debate has terminated, he receives their suffrages and announces their decision. He also examines into those matters which are settled at a private audience with the pope, without being brought before the whole congregation, and his words give publicity to the decisions which he receives from the living voice of the pontiff himself. Finally, he determines alone certain matters of minor importance, which, on that account, are neither brought before the congregation nor the pope. He receives his appointment from the sovereign pontiff, and holds his office during life. When he is absent, his place is supplied by the oldest cardinal of the congregation, and, at his death, the cardinal-secretary of state places his signature to the nomination of the new prefect.

The secretary assists at the meetings of the congregations, and is charged with the duty of recording its resolutions and acts, of transcribing its registers, and of delivering its processes. He also summons the cardinals, presents to them at each session a brief of the causes they are to treat, and gives them, for each of these, a succinct statement of the principal arguments of the parties, with a summary of the documents pertaining to them. This statement is printed upon loose sheets and distributed to the cardinals several days in advance, in order that each may have time to fully investigate the affair. Sometimes this statement is prepared by the cardinal-reporter, hence called the cardinal ponent. The secretary also submits to the pope the sentences of which he is to approve; and, for this purpose, those of the different congregations have a day of special audience before the pontiff. The faculty of giving licenses for various purposes, such as reading prohibited books, etc., etc., is confided to the secretary; also the power to distribute copies of the decrees of the congregation, authenticated by the signatures of the prefect and the secretary, and sealed with the seal of the congregation, which thus become of valid force before all tribunals, and even elsewhere, if they treat of extra-judicial matters.

The secretaries are appointed by the pope himself. They must be bishops, with the title of a church in partibus infidelium, or, at least, prelates of the Roman court. In the Congregation of the Holy Office the secretary is a cardinal.

The secretary has under him a number of inferior officials—a vice-secretary, who supplies his place when vacant; a protocol, who takes care of those records in which are registered current matters of business, with the state of their examination; a master of rolls, who preserves the various documents; and copyists, who prepare duplicates and exemplifications. All these are under his control, and for them all he is responsible. They are chosen at a general session and hold office for life. They rank in the order of their seniority. Their remuneration is moderate, but they enjoy it during life, even when sickness or old age prevents the fulfilment of their duties.

To these congregations, moreover, are attached a number of theologians and canonists, who act as counsellors in the investigation of different questions, and assist with their advice those cardinals whose place it is to determine causes. These also are appointed for life by the pope, and, as they are generally taken from the religious orders, they are never absent or obliged to leave Rome without the permission of the congregation.

These counsellors prefer their opinions in various forms, according to the character of the congregation. Sometimes one of them is requested to present a written solution of some especial question; sometimes they are all summoned to hold a united deliberation and give their collective vote before the cardinals.

The parties who appear before these congregations are represented in their presence by proctors and advocates. The proctors act in the same capacity as our attorneys. They are the true defenders of their cause by law and in fact. They compose the petitions, digest the informations, and direct the whole proceedings. Their profession is very honorable, but not open to every one.

Advocates are employed only in matters of higher importance, and seldom except in those of abstract law. They disengage, as far as possible, every question from the circumstances of fact which surround it, and examine it doctrinally from the most elevated point of view. Their profession is free; but in order to exercise it one must be a doctor of civil and canon law, and consequently must have spent four years in study at the Sapienza, or three years at the Apollinaria. They are not limited in number, and are permitted to appear before any of the congregations. There are also special advocates belonging to the consistory, who deal only with the process of canonization. All of these are men well versed in theological learning, canons, councils, ecclesiastical history, civil and canon law, and by their own erudition contribute vastly to the advancement of jurisprudence.

Besides proctors and advocates, there are also solicitors who take charge of various transactions and proceedings, hasten on investigations, and are employed in extra-judicial affairs.

The method of procedure before these congregations differs according to the congregation, the nature of the business, and even the will of the parties themselves. It may likewise be distinguished into the ordinary, the summary, the inquisitorial, etc., etc., and is regulated by positive rules or by custom. They are well known to all, and, in practice, never give rise to any confusion.

We do not desire here to enter into details concerning these different modes of procedure. We can only go so far as to make known their general character, and to compare it with our own civil proceedings, which are sometimes, we think groundlessly, supposed to be a model for all others.

We select, as a type of the whole, the usages of the Congregation of the Council. This congregation receives appeals from the sentences of ordinaries, and also causes submitted to it by the consent of the parties; the latter being equally proper with the former, provided the rules are equally observed. These causes are usually commenced by the sending of a summons to the opposite party through a public official, in the same manner as in civil processes. At the outset, however, a particular formality, called the settlement of the question, is observed. The object of this is to determine the precise point upon which the decision of the congregation is desired. For this purpose it is necessary that an issue be joined between the adverse parties, upon some definite proposition.... This is done either by the parties themselves or their proctors, in presence of the secretary of the congregation, and, in their default, the secretary himself explains it in writing, or, when requisite, the congregation is called to determine it.

This summons for the settlement of the question is served fifteen days before the date of the proceeding itself. At the same time, the original and authenticated writings which the parties have employed, as well as a statement of the facts, signed by the proctor, must be deposited at the office of the secretary. If judicial inquests and the deposition of witnesses are necessary, they are taken by the ordinary in the capacity of judge-delegate, the congregation not being able to act at a distance. The procès-verbal authenticated and duly legalized, are transmitted to it; but as the causes generally come before it by appeal, all these investigations of fact are previously concluded, and the ordinary sends forward the entire papers of the case.

The defences of parties are presented in written memorials in the Latin tongue, signed by an advocate or by a proctor approved by the Roman court. These memorials are deposited with the secretary and communicated to the complainants, as are also copies of all documents that are produced, in nearly the same manner as in the highest civil tribunals. These memorials are in turn succeeded by written replications, signed and filed in the same way. Unless by special permission, the memorials are limited to five printed sheets, and the replications to two. In case of negligence, the proctor is liable to a penalty. No supplementary writings are admissible.

From these papers the secretary makes memoranda, briefly setting forth the whole affair and the principal arguments, the facts and the law, as claimed by the parties, all of which, together with the defences and replications, are printed and distributed in duplicate to the cardinals. These, then, receive separately the parties with their advocates and listen to their explanations, if they judge any to be useful to their cause. These interviews are not, however, secret. Both adversaries have their audiences, and they contribute very much to elucidate doubtful matters.

The day of decision is fixed by the secretary. There is never any delay except for the greatest reasons. The production of the defences must take place at least thirty days before that of final judgment. The printed memoranda are distributed at least six days before it. The circulation of the papers and supplemental documents is finished in the same interval. The audiences to parties are granted within the last four or five days which precede. The distribution of replications is made at latest the day before the session. After this, no notice is taken of any testimony or document produced by one of the parties, unless with the consent of the other.

There are no contradictory pleadings, no public audiences. Every thing is done in writing. The cardinals, well instructed in the cause from the defences, replications, documents, memoranda of the secretaries, and the previous verbal explanations of the advocates, assemble on the appointed day and deliberate out of the hearing of the parties. This deliberation is secret, and sometimes takes place between two audiences.

After judgment is rendered, the losing party has ten days in which to petition for a new trial for the revision of the sentence by the same congregation. The prefect grants this petition; the new hearing takes place at the end of three months; and the party who demands it, if defeated, defrays the expenses.

When sentence has been rendered, and has become of full force as a judgment, an exemplification of it is transmitted to the winning party, who presents it at the executive office of letters-apostolic and of decrees of congregations, in order that it may be couched in the requisite formularies.

The proceedings before the Congregation of Bishops and Regulars closely resemble those before the Congregation of the Council. The delays are somewhat shorter, but the ordinary procedure is the same. Before both of them there is also a species of process more swift and summary, to be employed when the parties desire it, or the nature of the business demands it. Moreover, in the latter congregation it is the secretary who renders its decision.

We have seen that appeals in criminal cases are taken from the diocesan courts to the Congregation of Bishops and Regulars, except when the nature of the offence brings it within the cognizance of the Congregation of the Holy Office. This appeal must be entered within ten days after the promulgation of the judgment. After the appeal is perfected, the diocesan court transmits to the congregation a budget which includes: 1, the process which was instituted in the first instance; 2, the brief of this process and the note of that which followed; 3, the defence of the accused; 4, the sentence. At the same time the court signifies to the accused and his advocate that they are now to prosecute their appeal.

If the appellant does not pursue the matter, a reasonable delay, ordinarily of twenty days, is accorded, after which he is judged to have renounced his appeal and the sentence is executed. If he does pursue it, he makes choice of an advocate at Rome. The budget is then sent to a judge-reporter, from whose hands the advocate receives a memorandum of the case, and upon that bases his defence. This defence is communicated to the first judge, that he may sustain his sentence. All the papers are printed and distributed to the cardinals. The cause is examined on an appointed day in presence of the assembled congregation. The judge-reporter states the case. The proctor-general defends the sentence of the court below. The cardinals render their decision, which affirms, vacates, or revises the sentence of the diocesan tribunal, and is immediately transmitted thereto for execution. This decision is final; and, after it is rendered, the pope alone can grant a review of the proceedings, and that only before the same congregation, and for the gravest reasons.

It will be remarked that there is no public hearing of witnesses; but if this should seem objectionable to any, it will be sufficient to remind them that civil courts, which revise the judgments of courts of correction, decide upon the papers of the case and not upon the testimony of living witnesses at their bar; while, as for criminal proceedings, it is well known that from the courts which try issues of fact there is usually no appeal.

When, instead of an ordinary offence, the crime alleged is one against the faith, the rules of procedure are inquisitorial in their character, and differ somewhat from the preceding; but on account of the weight of the penalty, they offer still greater safeguards to the accused.

Moreover, it is not requisite that all the witnesses should have been present during the whole transaction in question; the deposition of a single one is admissible, though it is necessary that there be more than two, and even three form but a sort of half-proof. All interrogatories, skilfully directed to extort the truth from the defendant or the witnesses by surprise, are strictly forbidden, as are also any suggestions of the answer desired, and every effort is made that the truth may flow naturally from the lips of the witness and without the influence of fear. In order to avoid hatred and terrorism, the names of the witnesses are not made known to the accused, but their motives of hostility to him are examined with the greatest care. False witnesses are punished with the utmost severity, and, when it becomes necessary, the accused and accusers are confronted with each other.

If from poverty, or any other reason, the accused is found without an advocate or proctor, one is furnished for him.

Finally, the appeal is a matter of right. It is taken directly to Rome, before the Congregation of the Holy Office, without passing through any intermediate metropolitan tribunal, and, during its pendency there, execution is usually stayed. Judgment is never rendered against any one upon mere presumptions; but only after full and unmistakable proof.

We come now to notice the written regulations which may be called the skeleton of procedure. Save some variations in detail, they differ little from those of all contested cases before the different congregations. But in order fully to understand their advantages and disadvantages, the reader should understand not only the text of the law but the usages of its practices. For everywhere, at Rome as at Paris, unwritten traditions and judicial customs modify and temper the law, complete its deficiencies, and cause the inconveniences which, at first sight, it would seem to occasion, wholly to disappear. It is also impossible to base a serious comparison between the procedure of two countries upon a mere reading of their rules. Not only ought the two methods to vary according to the manners of the parties, the character of the tribunals, and the nature of their causes, but even two modes which are identical will often, under different circumstances, produce entirely different results. They accommodate themselves to the hand that wields them, and their value can be really appreciated only after long usage of them; so that the skilled practitioner alone is able to speak authoritatively of their value, of their endurance, and of the guarantees which they offer for the discovery of truth.

By these remarks we desire to show that the procedure of the Roman congregations, without sacrificing any of the essential safeguards of justice, is generally simple, brief, economical, informal to a degree beyond that of any civil procedure; and, far from needing to learn any thing from them, it is able in many points to become their instructor.

There is, however, one great difference upon which we especially insist, because it has formed the pretext for unjust attacks from narrow minds, who are unable to comprehend that any thing can be well done that is done in a way different from their own, or that any difference between their customs and those of others is not a signal mark of the inferiority of the latter. The Roman congregations admit of no oral pleadings.[36] All discussion is in writing, though it is necessarily completed by the verbal explanations which the advocates give to the judges; but there is no public and passionate debate, such as is common in all civil jurisdictions. We do not believe that the absence of this is any evil. The Roman legislative body has always endeavored to shun surprises in its hearings. Pleading, as it is practised among us, is nothing but the conflict of two opposing debaters, often unequally matched, and of whom the more powerful is seldom on the side of the oppressed. We believe, indeed, that the doors of the influential advocate, whose name and authority are themselves a powerful argument, are rarely closed against the poor who seek to enter them; but the poor do not always dare to stop and knock, and so content themselves with men of more ordinary abilities. If, then, one of these contesting advocates is more skilful than the other; if he knows how to win favor for his client by an insinuating speech and to cast ridicule upon his adversary; if he has the faculty of grouping figures, of coloring facts, of flattering his auditors during the progress of the controversy; if he is passionate and violent, his emotion will affect the judge, whose heart beats under his robe and is not, perhaps, to any extraordinary degree unimpressible; all these circumstances, extrinsic to the real merits of the cause, will exercise great influence upon its determination, and may be able to wring from the tribunal a decision which, in moments of reflection and coolness, it would never render.

Oral pleading resembles, to some extent, those ancient judicial combats upon which the issue of causes was sometimes made to depend. It is a duel of words, in which justice does not always have the advantage. Our imagination represents an advocate as one whose work it is to wrest the innocent from the clutches of powerful and cruel persecutors; who summons eloquence to aid him in resisting the fierce passions which menace the welfare of his client. This was well enough for those primitive ages when a legal process was the outburst of violent wrath, which dragged the alleged offender before a single judge, or perhaps before a mob erected into a tribunal and swayed by passion. But this conception is not correct for our day, even in criminal matters, where the public prosecutor, as far as possible, excludes mere feeling and makes his appeal to calm and solid reason alone; and it is especially false in civil causes, in which the advocate interprets the text of the law, discusses contracts, examines and compares evidence, all of which labors are difficult, and demand, above all things, reflection, good sense, and coolness.

For attaining, therefore, the ends of justice, a mode of written procedure is particularly adapted. It assures to the contending parties all the time necessary for a careful reply to the reasonings on either side, and establishes an equality between the talents of their respective advocates; it also removes the decision of the cause from the bias of personal influences, and leaves it to be determined by argument only. Moreover, the judge is able to reflect at his ease upon the merits of the case, and is secure against the seductions of artful declamation. Even before those supreme civil tribunals where written and oral pleadings are both permitted, the latter are usually regarded in the solution of the question, and this is what gives to the advocates of those illustrious courts their influence and renown. The Roman congregations are also supreme tribunals; but there passion has no echo and needs no interpreter; there causes stand upon their own merits, stripped of all attendant circumstances; there the gravest questions of dogma, of morals, and of right are decided by reason alone, but by reason illuminated both by science and by faith.

The procedure of the Roman congregations is much less expensive than that before ordinary civil jurisdictions. Originally it was entirely gratuitous, and many of the congregations—as, for instance, those of the Propaganda, the Index, and the Holy Office—still retain this rule in reference to all the causes which are submitted to them. But the great increase of expense, consequent upon the increase of causes, has necessitated the establishment, by other congregations, of certain light taxes, although even these bear small proportion to the actual disbursements. Thus, all the proceedings are upon ordinary paper, which, not being liable to stamp-duty, makes one important saving in expense. Again, while civil proceedings are registered upon payment of a certain fee, which is another notable method of taxation, those at Rome are registered without charge; and, while masters of rolls elsewhere enjoy incomes sometimes reaching the sum of many thousands, those at Rome are paid by the treasurer, and are forbidden to receive any emolument, although perfectly gratuitous, from any party, even for the most extraordinary labors—an obligation imposed on them by oath upon their admission to office.

They are also obliged to exhibit, without charge, to any person the various documents of their several bureaus, and are allowed but a moderate recompense for the copies and exemplifications which they may prepare. Even the expense of printing is borne, at least in part, by the congregation. The congregations do not sell justice; they give it. The pontifical treasury does not look to them as a source of revenue. On the contrary, the taxes they collect are far less than their expenses, and, in fact, so much so that their services may be considered as gratuitous. For example, a matrimonial cause submitted to the Congregation of the Council, and requiring minute examinations, consultations, researches, and a large collection of documents, will cost the winning party several crowns, the precise amount depending upon the number of questions to be resolved. The same case tried in civil courts would cost two or three thousand francs.

The fees of advocates and attorneys correspond to the expenses. Among us they continue constantly to increase. At Rome they are very meagre. They are legally fixed at a uniform rate, according to the importance of the cause and the result of the investigation. Even these the advocates cannot demand as a right, and receive them only as a spontaneous gift.

The French magistracy with good reason congratulates itself on the establishment of an association designed to secure to the poor the gratuitous defence of their just rights. Rome has long since possessed a similar institution. This is the Society of Advocates, which assembles on fête days to receive and reply to the inquiries of the indigent. Among the obligations of the consistorial advocates is that of defending the causes of the poor before their respective tribunals. In criminal cases there are especial advocates for the poor. Among the proctors there are certain ones appointed for the poor, one by the pope, the others by the different societies. Finally, the Society of St. Ives is particularly charged with the protection of the indigent; and such are the customs among the members of the Roman bar that none ever refuses his services to the unfortunate who seeks them.

The Roman congregations are not mere tribunals instituted by the holy see with a delegation of powers, which leaves the supreme authority still in the hands of the sovereign pontiff, and allows a right of appeal from their judgment to his. They are the holy see itself, rendering its decisions by the mouths of its cardinals. Canon law recognizes their jurisdiction as ordinary and not delegated. Delegated jurisdiction is a mandate which confers upon the mandatary certain special favors distinct from and inferior to the powers of the mandator. Ordinary jurisdiction is an actual communication, which unites the mandator and mandatary in one single tribunal, and makes the one the simple organ of the other. Numerous passages of canon law justify this conception of these congregations and render it incontestable as a legal conclusion.

The nature of the decisions which they render makes the point still more certain. They issue general decrees promulgated by order of the sovereign pontiff, which consequently obtain the force of law in all places in the same manner as the pontifical constitutions, from which they do not essentially differ. Such are the decrees of the Holy Office, of the Index, and certain of those of the Congregation of Rites, of that of the Council, and of that of Bishops and Regulars. They also render interpretations of existing laws, and these enjoy a supreme and universal authority, as if they emanated directly from the sovereign pontiff, since they are both submitted to and approved by him. In fine, the sentences which they render in private controversies are, equally with the rest, submitted to the pope; though without this sanction, and from the ordinary powers of the congregations, they would be obligatory upon all, and would become the rule of other tribunals, since for this purpose especially were these congregations instituted as courts of final judicature.

The decisions rendered by these different congregations, and preserved in their archives from the very day of their institution to the present, form the most magnificent body of jurisprudence which has ever existed. One canonist of eminence reckons that upward of sixty thousand decisions have been delivered by the Congregation of the Council alone; a living, practical commentary on the Council of Trent. The Congregation of Bishops and Regulars publishes nearly three volumes of decrees every year, and the volumes which contain its judgments are over eight hundred in number. When we remember that nearly all these decisions are upon questions of law, disengaged from mere accessories of fact, we are amazed at the treasures of science, erudition, and reasoning which are thus accumulating from age to age in these archives, and forming an inexhaustible reservoir, in which tradition stores itself and whence justice and truth flow out upon the world.