« Apostolici Appeals To the Pope Appel, Theodore »

Appeals To the Pope

APPEALS TO THE POPE: Appeals from lower officials or courts, which, considered as an ordinary process of law, with effect of suspension and devolution, may be based upon the pope’s capacity of bishop and metropolitan, or upon his supposed primacy over the entire Catholic world. Those of the former class have nothing peculiar about them. As concerns the latter class, the third and 249fourth canons of the Council of Sardica (343) do not, as asserted by Roman Catholic canonists, recognize such an appellate jurisdiction; and no such jurisdiction existed earlier. The council indeed lays down the law that in case of the deposition of a bishop the matter may be referred to the pope, who may either decline to act (in which case the deposition holds good), or may order an investigation by neighboring bishops and certain specially appointed priests. But, apart from the fact that the Council of Sardica is not recognized as ecumenical, and that its decrees were long ago known to have been interpolated to bring them into harmony with the Nicene canons, every true appeal presupposes a review of the formalities and a decision on the validity of the grounds for the lower court’s sentence, neither of which is mentioned in the Sardican canons. The claim by the Roman See of a supreme judicial power was only made possible by the victory of the orthodox party, always represented by Rome, over Arianism, and the imperial decision (380) that the faith of the Roman pontiff was the standard, and that he should have precedence over all other bishops. This claim was first made by Innocent I. (402-417) in his letter to Victricius of Rouen; attempts to enforce it met with the determined opposition of the primates, and failed until a firm foundation for them was laid under Leo I. by a law of the emperor Valentinian III. in 445.

The Roman view is set forth in more than one passage of the pseudo-Isidorian decretals. These assert that, in conformity with the decrees of Sardica, bishops may appeal to Rome in all causes, and that the more serious ones must be decided by the Roman See, not by the bishops; and then that not only in such cases, but in all, and by any injured person, appeal may be made to the pope. These claims were in accord with the ideas of the twelfth century, and gave definite form to the concurrent jurisdiction of the pope, by which he might either immediately or through his legates decide or call up questions otherwise belonging to the ordinary. This is not the same thing as the appellate jurisdiction; but the conceptions belonging to the latter are touched by the assertion that in cases where failure of justice occurs in the secular courts, recourse may be had from any tribunal to the Church, that is, eventually to the curia. Although Alexander III. (1159-81) had admitted that appeals from civil tribunals, while customary, were not in accordance with strict legal principles, Innocent III. (1198-1216) affirmed the principle that the Church had the right to take measures against any sin, and thus against denial of justice by secular courts. A reaction against the abuse of appeals to Rome was evidenced in Germany by the “Golden Bull” [issued by the emperor Charles IV. in 1356; for text cf. O. Harnack, Das Kurfürsten-Kollegium, Giessen, 1883], which forbade them to be made from secular tribunals; by the Concordat of Constance (1418); and by the thirty-first session of the Council of Basel, to which corresponds the twenty-sixth section of the Pragmatic Sanction of 1439. The Concordat established the principle that appeals should be decided not in Rome, but by judices in partibus; and this provision was repeated in the latter two documents, which also forbade appeals per saltum and before the definitive sentence of the lower tribunal. The Council of Trent (sessions 13, chaps. 1-3, and 24, chap. 20 [held in 1551 and 1563]) decreed that only causæ majores should be taken to Rome, the others being decided by judices synodales, papal delegates so called because their nomination was left to the diocesan and provincial synods. When it appeared that these bodies did not act successfully, Pope Benedict XIV. (1740-58) transferred the nomination to bishops and chapters (judices prosynodales) by the constitution Quamvis paternæ of 1741. At present the bishops receive faculties enabling them to delegate these nominees in the pope’s name for a certain number of years. Appeals which do go to Rome are referred to two congregations, that of the council and that of bishops and regulars.

In modern times, even earlier than the period of the emperor Joseph II. (1765-90), both Catholic and Protestant governments have either abolished these appeals or very strictly limited them; but these limitations are considered by the curia as only de facto; not de jure, and the extensive medieval claims are still upheld in theory.

(E. Friedberg.)

Bibliography: For Golden Bull in Eng. consult: Henderson, Documents, pp. 220-221; Thatcher and McNeal, Source Book, pp. 283 sqq. (cf. pp. 329-332 on the general subject of appeals). On appeals: G. Phillips, Kirchenrecht, v. 215 sqq., Ratisbon, 1857; P. Hinschius, Kirchenrecht, v. 773 sqq., v. 281, Berlin, 1888-95.

« Apostolici Appeals To the Pope Appel, Theodore »

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