APPELLO PER ABUSO. — This expression designates recourse to the civil authority—on grounds of incompetence, violation of the law, or excess of power—against a measure issued by the ecclesiastical authority in a judicial or administrative capacity.
ORIGINS AND HISTORICAL DEVELOPMENT
The origin of appello per abuso (today representing little more than a historical memory) is closely tied to the rise of so-called regalist doctrines, which attributed to the State the right to exercise a true and proper judicial review over acts carried out by the organs of the Church (v. REGALISMO). The first examples of appello per abuso are found in the 15th century in France, where the Parliament, charged with overseeing the execution of the Pragmatic Sanction (v.), gradually extended the limits of its own competence, to the point of receiving all sorts of appeals against prelates. In the 16th century, appello per abuso (appel comme d'abus) constituted one of the most effective means for the defense of the liberties of the Gallican Church (v. GALLICANESIMO) and was regulated by specific legislative norms, such as the ordinance of Villers-Cotterêts (August 1539), the edict of Charles IX of 16 April 1571, and the ordinance of Blois (May 1579): if the Parliament recognized the ecclesiastical act as abusive, it was declared null, and its author could be subjected to fines, for the collection of which the seizure of temporalities was permitted; against the Parliament’s decision, the parties could appeal to the King’s Council. The Revolution, following the abolition of the old judicial organs, assigned jurisdiction over appelli per abuso to district tribunals (decree of 15 November 1790). Later, the famous articles organiques (v.)—added by the law of 8 April 1802 to the Napoleonic Concordat and abrogated only by the law of separation of 9 December 1905—regulated the matter anew, providing for the possibility of recourse to the Council of State «dans tous les cas d'abus de la part des supérieurs et autres personnes ecclésiastiques» and specifying such cases as follows: usurpation or excess of power; contravention of the laws and regulations of the Republic; infraction of the norms sanctioned by the canons received in France; violation of the liberties, franchises, and customs of the Gallican Church; and finally, any act or proceeding that, in the exercise of worship, might compromise the honor of citizens, arbitrarily disturb their consciences, or result in oppression, injury, or public scandal.
A similar evolution occurred in Spain, where appello per abuso, in the 16th and 17th centuries, was known under the name recurso de fuerza. In Germany, it was regulated much later, due to the particular relations between ecclesiastical and secular authority that existed there until the second half of the 18th century.
From France and Spain, the institution passed at different times into the legislations of various Italian States. In Piedmont, the law of 30 October 1859 established, in accordance with the Napoleonic model, that the Council of State in general assembly was competent to hear appeals lodged against abusive acts of ecclesiastical authorities; and this norm was preserved, after the proclamation of the Kingdom of Italy, in the law of 20 March 1865. The legge delle guarentigie (13 May 1871) sought to stipulate, in art. 17: «In materia spirituale e disciplinare non è ammesso richiamo od a. contro gli atti delle autorità ecclesiastiche». But could it be said that appello per abuso was definitively abolished in Italy by this? Some expressed doubt, arguing from the fact that the provision of the law of 20 March 1865 was repeated, most likely in error, in the consolidated texts of the laws on the Council of State of 1889, 1907, and 1924. Today, however, no doubt is possible in this regard, since art. 1 of the Concordat with the Holy See expressly declares that «l’Italia assicura alla Chiesa cattolica il libero esercizio del potere spirituale, come pure della sua giurisdizione in materia ecclesiastica», and art. 23, second paragraph, of the Lateran Treaty grants full executorial force in Italy to sentences issued by the tribunals of the Church against ecclesiastical or religious persons.
BIBL.:
P. Hinschius, Das Kirchenrecht der Katholiken und Protestanten in Deutschland, VI, Berlin 1897, pp. 454-460; A. Esmein, Histoire de la procédure criminelle en France, Paris 1882, pp. 165-170; E. Chenon, Histoire générale du droit français, II, Paris 1929, pp. 182-185; G. Mollat, Les appels comme d’abus, Paris 1908; F. Ruffini, La libertà religiosa come diritto pubblico subiettivo, Bologna 1924, pp. 251-260; A. C. Jemolo, Stato e Chiesa negli scrittori politici italiani del ’600 e del ’700, Torino 1914, pp. 120-125; Id., Il giansenismo in Italia prima della Rivoluzione, Bari 1928, pp. 150-155; G. Catalano, Appello per abuso, in Enciclopedia del diritto, II, Milano 1958, pp. 730-733.
A. C. JEMOLO
DOCTRINE OF THE CHURCH. - The Church's stance toward the institution in question was always, as one can well understand, one of open and intransigent hostility. Indeed, the appello per abuso constituted first and foremost a juridical absurdity, as it deferred the interpretation and application of ecclesiastical laws to organs belonging to an order different from that from which the laws themselves emanated; it then represented a manifest diminution of the Church's sovereignty, whose hierarchies were placed in a position of inferiority with respect to those of the State; and it finally provided civil authorities with a convenient opportunity to perpetrate injustices and abuses.
It should therefore come as no surprise that the Church has at all times punished with severe sanctions those who, availing themselves of state laws, dared to appeal to the secular forum to obtain the annulment of measures by ecclesiastical authority. It would be too lengthy to list the numerous constitutions promulgated on this matter by the Pontiffs, beginning in the 15th century. We shall merely recall that the Council of Trent (sess. 25, de ref., c. 3) solemnly reproved the practice, which had become established for some time, of appealing to lay judges against the sentences of ecclesiastical tribunals; that the bull In coena Domini of Gregory XIII (1577) imposed excommunication on those who, "praetextentes frivolam quamdam appellationem a gravamine," had recourse to civil magistracies; and that the Syllabus of Pius IX condemned, among others, the proposition: "Civili potestati, vel ab infideli imperanti exercitae, competit... nedum ius quod vocant Exequatur, sed etiam ius appellationis quam nuncupant ab abusu."
The current CIC provides for the crime of those who appeal to secular authority to impede the acts of the Apostolic See or the exercise, in general, of ecclesiastical jurisdiction, in cann. 2333 and 2334, n. 2 (v. AUTORITÀ ECCLESIASTICHE, delitti contro le).