Appeal for Abuse

APPEAL FOR ABUSE. - This expression designates the recourse to the civil authority - on grounds of lack of jurisdiction, violation of law, or abuse of power - against a measure issued in a judicial or administrative capacity by the ecclesiastical authority.

ORIGINS AND HISTORICAL EVENTS

The origin of the a. p. a. (today representing little more than a historical memory) is closely bound up with the rise of those so-called regalist doctrines, which attributed to the State the right to exercise a genuine judicial review of legality over the acts performed by the organs of the Church (v. REGALISMO). The first examples of the a. p. a. 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 every sort of appeal against prelates. In the 16th century the a. p. a. (appel comme d'abus) constituted one of the most effective means for the defense of the liberties of the Gallican Church (v. CALLECANISIMO) and was regulated by specific legislative norms, such as the ordinance of Villers-Cotterêts (Aug. 1539), the edict of Charles IX of 16 Apr. 1571 and the ordinance of Blois (May 1579): if the Parliament recognized the ecclesiastical act as abusive, it was declared null, and fines could be imposed on its author, for the collection of which the seizure of temporalities was permitted; against the decision of the Parliament the parties could appeal to the King's Council. The Revolution, following the abolition of the old judicial organs, assigned jurisdiction over a. p. a. to the district courts (decree of 15 Nov. 1790). Later, the famous organic articles (v.) - added by the law of 8 Apr. 1802 to the Napoleonic Concordat and repealed only by the separation law of 9 Dec. 1905 - regulated the matter anew, providing for the possibility of appeal to the Council of State «dans tous les cas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 the following: usurpation or excess of power; contravention of the laws and regulations of the Republic; infringement of the norms sanctioned by the canons received in France; attack upon the liberties, franchises and customs of the Gallican Church; and finally any act or proceeding which, in the exercise of worship, could compromise the honor of citizens, arbitrarily disturb their consciences or result in oppression, injury or public scandal against them.

The a. p. a. underwent a similar evolution in Spain, where, in the 16th and 17th centuries, it was known under the name of recurso de fuerza. In Germany, on the other hand, it was regulated much later, on account of the particular relations between ecclesiastical and secular authority existing there until the second half of the 18th century.

From France and Spain the institution passed at various times into the legislations of the various Italian States. In Piedmont, the law of 30 Oct. 1859 established, in conformity with the Napoleonic model, that the Council of State in general assembly was competent to hear appeals brought against the 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 so-called law of the guarentigie (13 May 1871) took care to decree, in art. 17: «In materia spirituale e disciplinare non è ammesso richiamo od a. contro gli atti delle autorità ecclesiastiche». But could the a. p. a. thereby be said to be definitively abolished in Italy? Some appeared to doubt it, arguing from the fact that the provision of the law of 20 March 1865 was repeated, most probably by error, in the consolidated texts of the laws on the Council of State of 1889, 1907 and 1924. Today, however, no doubt is any longer 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 para. 2 of the Lateran Treaty gives full enforceability in Italy to the judgments issued by the tribunals of the Church against ecclesiastical or religious persons.

DOCTRINE OF THE CHURCH

The attitude of the Church toward the institution in question was always, as is well understood, one of open and intransigent hostility. And in fact, the appello per abuso constituted in the first place a juridical absurdity, inasmuch as it referred the interpretation and application of ecclesiastical laws to organs belonging to an order different from that from which those laws themselves emanated; it then represented a manifest impairment of the sovereignty of the Church, whose hierarchies were placed in a condition of inferiority with respect to those of the State; and it finally procured for the civil authorities a convenient occasion to perpetrate injustices and abuses.

It cannot therefore cause surprise that the Church has at all times struck with severe sanctions those who, availing themselves of the laws of the State, dared to have recourse to the secular forum in order to obtain the annulment of the measures of ecclesiastical authority. It would be too long to list the numerous constitutions promulgated in this regard by the Pontiffs, beginning from the 15th century. We shall recall only that the Council of Trent (sess. 25, de ref., c. 3) solemnly reproved the practice, for some time established, of appealing to lay judges against the sentences of ecclesiastical tribunals; that the bull In coena Domini of Gregory XIII (1577) imposed excommunication upon all those who « praetextentes frivolam quamdam appellationem a gravamine » had had recourse to the 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 CIC currently in force provides for the crime of one who has recourse to the secular authority in order 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).

Ferruccio Liuzzi