But if the Judge perceives that the
accused is determined to have recourse to an appeal, he must first
take note that such appeals are sometimes valid and legitimate, and
sometimes entirely frivolous. Now it has already been explained that
cases concerning the Faith are to be conducted in a simple and
summary fashion, and therefore that no appeal is admitted in such
cases. Nevertheless it sometimes happens that Judges, on account of
the difficulty of the case, gladly prorogue and delay it; therefore
they may consider that it would be just to allow an appeal when the
accused feels that the Judge has really and actually acted towards
him in a manner contrary to the law and justice; as that he has
refused to allow him to defend himself, or that he has proceeded to a
sentence against the accused on his own responsibility and without
the counsel of others, or even without consent of the Bishop or his
Vicar, when he might have taken into consideration much further
evidence both for and against. For such reasons an appeal may be
allowed, but not otherwise.
Secondly,
it is to be noted that, when notice of appeal has been given, the
Judge should, without perturbation or disturbance, ask for a copy of
the appeal, giving his promise that the matter shall not be delayed.
And when the accused has given him a copy of the appeal, the Judge
shall notify him that he has yet two days before he need answer it,
and after those two days thirty more before he need prepare the
apostils of the case. And although he may give his answer at once,
and at once proceed to issue his apostils if he is very expert and
experienced, yet it is better to act with caution, and fix a term of
ten or twenty or twenty-five days, reserving to himself the right to
prorogue the hearing of the appeal up to the legal limit of time.
Thirdly, let the Judge take care that during the
legal and appointed interval he must diligently examine and discuss
the causes of the appeal and the alleged grounds of objection. And if
after having taken good counsel he sees that he has unduly and
unjustly proceeded against the accused, by refusing him permission to
defend himself, or by exposing him to questions at an unsuitable
time, or for any such reason; when the appointed time comes let him
correct his mistake, carrying the process back to the point and stage
where it was when the accused asked to be defended, or when he put a
term to his examination, etc., and so remove the objection; and then
let him proceed as we have said. For by the removal of the grounds
for objection the appeal, which was legitimate, loses its weight.
But here the circumspect and provident Judge
will carefully take note that some grounds of objection or reparable;
and they are such as we have just spoken of, and are to be dealt with
in the above manner. But others are irreparable: as when the accused
has actually and in fact been questioned, but has afterwards escaped
and lodged an appeal; or that some box or vessel or such instruments
as witches use has been seized and burned; or some other such
irreparable and irrevocable action has been committed. In such a case
the above procedure would not hold good, namely, taking the process
back to the point where the objection arose.
Fourthly, the Judge must note that, although thirty days may
elapse between his receiving the appeal and his completing the
apostils of the case, and he can assign to the petitioner the last
day, that is, the thirtieth, for the hearing of his appeal; yet, that
it may not seem that the wishes to molest the accused or some under
suspicion of unduly harsh treatment of him, and that his behaviour
may not seem to lend support to the objection which has caused the
appeal, it is better that he should assign some day within the legal
limit, such as the tenth or twentieth day, and he can afterwards, if
he does not wish to be in a hurry, postpone it until the last legal
day, saying that he is busy with other affairs.
Fifthly, the Judge must take care that, when he affixes a term
for the accused who is appealing and petitioning for apostils, he
must provide not only for the giving, but both for the giving and
receiving of apostils. For if he provided only for the giving of
them, then the Judge against whom the appeal is lodged would have to
discharge the appellant. Therefore let him assign to him a term, that
is, such a day of such a year, for the giving and receiving from the
Judge such apostils as he shall have decided to submit.
Sixthly, he must take care that, in assigning this
term, he shall not in his answer say that he will give either
negative or affirmative apostils; but that he may have opportunity
for fuller reflection, let him say that he will give such as he shall
at the appointed time have decided upon.
Let him also take care that in assigning this term to the appellant
he give the appellant no opportunity to exercise any malicious
precautions or cunning, and that he specify the place, day and hour.
For example, let him assign the twentieth day of August, in the
present year, at the hour of vespers, and the chamber of the Judge
himself in such a house, in such a city, for the giving and receiving
of apostils such as shall have been decided upon for such
appellant.
Seventhly, let him note
that, if he has decided in his mind that the charge against the
accused justly requires that he should be detained, in assigning the
term he must set it down that he assigns that term for the giving or
receiving of apostils by the appellant in person, and that he assigns
to the said appellant such a place for giving to him and receiving
from him apostils; and then it will be fully in the power of the
Judge to detain the appellant, granted that he has first given
negative apostils; but otherwise it will not be so.
Eighthly, let the Judge take care not to take any
further action in respect of the appellant, such as arresting him, or
questioning him, or liberating him from prison, from the time when
the appeal is presented to him up to the time when he has returned
negative apostils.
To sum up. Note
that it often happens that, when the accused is in doubt as to what
sort of sentence he will receive, since he is conscious of his guilt,
he frequently takes refuge in an appeal, that so he may escape the
Judge's sentence. Therefore he appeals from that Judge, advancing
some frivolous reason, as that the Judge held him in custody without
allowing him the customary surety; or in some such way he may colour
his frivolous appeal. In this case the Judge shall ask for a copy of
the appeal; and having received it he shall either at once or after
two days give his answer and assign to the appellant for the giving
and receiving of such apostils as shall have been decided upon a
certain day, hour, and place, within the legal limit, as, for
instance, the 25th, 26th or 30th day of such a month. And during the
assigned interval the Judge shall diligently examine the copy of the
appeal, and the reasons or objections upon which it is based, and
shall consult with learned lawyers whether he shall submit negative
apostils, that is, negative answers, and thereby disallow the appeal,
or whether he shall allow the appeal and submit affirmative and
fitting apostils to the Judge to whom the appeal is made.
But if he sees that the reasons for the appeal are
frivolous and worthless, and that the appellant only wishes to escape
or to postpone his sentence, let his apostils be negative and
refutatory. If, however, he sees that the objections are true and
just, and not irreparable; or if he is in doubt whether the accused
is maliciously causing him trouble, and wishes to clear himself of
all suspicion, let him grant the appellant affirmative and fitting
apostils. And when the appointed time for the appellant has arrived,
if the Judge has not prepared his apostils or answers, or in some
other way is not ready, the appellant can at once demand that his
appeal be heard, and may continue to do so on each successive day up
to the thirtieth, which is the last day legally allowed for the
submission of the apostils.
But if he
has prepared them and is ready, he can at once give his apostils to
the appellant. If, then, he has decided to give negative or
refutatory apostils, he shall, at the expiration of the appointed
time, submit them in the following manner:
AND the said Judge, answering to the said appeal, if it may be called
an appeal, says that he, the Judge, has proceeded and did intend to
proceed in accordance with the Canonical decrees and the Imperial
statutes and laws, and has not departed from the path of either law
nor intended so to depart, and has in no way acted or intended to act
unjustly towards the appellant, as is manifest from an examination of
the alleged grounds for this appeal. For he has not acted unjustly
towards him by detaining him and keeping him in custody; for he was
accused of such heresy, and there was such evidence against him that
he was worthily convicted of heresy, or was strongly suspected, and
as such it was and is just that he should be kept in custody: neither
has he acted unjustly by refusing him sureties; for the crime of
heresy is one of the more serious crimes, and the appellant had been
convicted but persisted in denying the charge, and therefore not even
the very best sureties were admissable, but he is and was to be
detained in prison. And so he shall proceed with the other
objections.
Having done this, let him
say as follows: Wherefore it is apparant that the Judge has duly and
justly proceeded, and has not deviated from the path of justice, and
has in no way unduly molested the appellant; but the appellant,
advancing pretended and false objections, has by an undue and unjust
appeal attempted to escape his sentence. Wherefore his appeal is
frivolous and worthless, having no foundation, and erring in matter
and form. And since the laws do not recognize frivolous appeals, nor
are they to be recognized by the Judge, therefore the Judge has
himself said that he does not admit and does not intend to admit the
said appeal, nor does he recognize nor yet propose to recognize it.
And he gives this answer to the said accused who make this undue
appeal in the form of negative apostils, and commands that they be
given to him immediately after the said appeal. And so he shall give
it to the Notary who has presented the appeal to him.
And when these negative apostils have been given to the
appellant, the Judge shall at once proceed with his duty, ordering
the accused to be seized and detained, or assigning to him a day to
appear before him, as shall seem best to him. For he does not cease
to be the Judge, but shall continue his process against the appellant
until the Judge to whom the appeal was made shall order him to
cease.
But let the Judge take care not
to commence any new proceedings against the appellant, by arresting
him or, if he is in custody, liberating him from prison, from the
time of the presentation of the appeal up to the time of the return
of negative apostils to him. But after that time, as we have said, he
can do so if justice requires it, until he is prevented by the Judge
to whom the appeal has been made. Then, with the process sealed under
cover, and with a sure and safe escort and if necessary a suitable
surety, let him send him to the said Judge.
But if the Judge has decided to return affirmative and fitting
apostils, let him submit them in writing in the following manner on
the arrival of the day appointed for the giving and receiving of
apostils:
AND the said Judge,
answering to the said appeal, if it may be called an appeal, if it
may be called an appeal, says that he has proceeded in the present
cause justly and as he ought and not otherwise, nor has he molested
or intended to molest the appellant, as is apparent from a perusal of
the alleged objections. For he has not molested him by, etc. (Here he
shall answer to each of the objections in the appeal, in the best and
most truthful manner that he can.)
Wherefore it is apparent that the said Judge has in no way dealt
unjustly by the appellant nor given him cause to appeal, but that the
appellant is afraid lest justice should proceed against him according
to his crimes. And therefore the appeal is frivolous and worthless,
having no foundation, and not being admissable by the laws or the
Judge. But in reverence for the Apostolic See, to which the appeal is
made, the said Judge says that he admits the appeal an intends to
recognize it, deferring the whole matter to out Most Holy Lord the
Pope, and leaving it to the Holy Apostolic See: assigning to the said
appellant a certain time, namely, so many months now following,
within which, with the process sealed under cover given to him by the
said Judge, or having given suitable sureties to present himself at
the Court of Rome, or under a sure and safe escort appointed to him
by the said Judge, he must present himself in the Court of Rome
before our Lord the Pope. And this answer the said Judge gives tot he
said appellant as affirmative apostils, and orders that it be given
to him immediately after the appeal presented to him. And so he shall
hand it to the Notary who has presented the appeal to him.
The prudent Judge must here take note that, as
soon as he has given these fitting apostils to the appellant, he at
once ceases to be the Judge in that cause from which the appeal was
made, and can proceed no further in it, unless it be referred back to
him by our Most Holy Lord the Pope. Therefore let him have no more to
do with that case, except to send the said appellant in the above
manner to out Lord the Pope, assign to him a convenient time, say
one, two or three months, within which he must prepare and make
himself ready to appear and present himself at the Court of Rome,
giving a suitable surety; or, if he cannot do this, let him be sent
under a sure and safe escort. For he must either bind himself by the
best means in his power to present himself within the assigned time
before our Lord the Pope in the Court of Rome, or his appeal must
necessarily fall to the ground.
But if
the Judge has another case, and proceeds against the accused in
another case in which he has not lodged any appeal: in that other
case he remains, as before, Judge. And even if, after the appeal has
been admitted, and the affirmative apostils have been given, the
appellant is accused and denounced to the Judge in respect of other
heresies which were not in question in the case from which he
appealed, he does not cease to be the Judge, and can proceed with the
inquiry and the examination of witnesses as before. And when the
first case has been finished in the Court of Rome, or after reference
back to the Judge, he is free to proceed with the second.
Let Judges also take care that they send the process to
the Court of Rome, sealed and under cover, to the Judges appointed to
execute justice, together with a digest of the merits of the process.
And Inquisitors should not concern themselves to appear at Rome
against the appellants; but should leave them to their own Judges,
who, if the Inquisitors are unwilling to appear against the
appellants, shall provide their own advocates for the appellant, if
they wish to expedite the case.
Let
Judges also take note that, if they are personally summoned by the
appellant, and appear, they must beware at all costs against engaging
in litigation, but must leave the whole process and cause to those
Judges, and so manage that they may be able to return as soon as
possible; so that they may not be sorely troubled with fatigues,
misery, labour, and expense in Rome. For by this means much damage is
caused to the Church, and heretics are greatly encouraged; and
thereafter Judges will not receive so much respect and reverence, not
will they be so much feared as before. Also other heretics, seeing
the Judges fatigued and detained in the Court of Rome, will exalt
their horns, and despise and malign them, and more boldly proclaim
their heresies; and when they are accused, they will appeal in the
same way. Other Judges, also, will have their authority weakened when
they proceed on behalf of the Faith and are zealous in extirpating
heretics, since they will fear lest they may be troubled with
miseries and fatigues arising from similar appeals. All this is most
prejudicial to the Faith of the Holy Church of God; wherefore may the
Spouse of that Church in mercy preserve her from all such injuries.