Document

DOCUMENT. - From the etymological meaning of "teaching" (from doceo, "that from which one learns, obtains proof"), the word d. came to indicate any testimony (written, verbal, monumental) of a fact, and particularly, to paraphrase Sickel's definition, "the written attestation of a fact of a legal nature and content, drawn up according to determined principles so that it may command belief and have the value of proof": in this sense it is also called an "instrument" and was designated in the Middle Ages by the generic terms charta, litterae, scriptura, etc. Its origin is to be sought in the ancient Roman d., whether in the form of testimony or in that of the chirograph and the epistle. The d. in itself, that is, apart from the historical or legal value it may have, is the object of a particular science called "diplomatics" (v.).

I. CLASSIFICATION

Since not all documents respond to the same purpose, nor come from the same author, nor present themselves under a single aspect, diplomatics has had to proceed first of all to a classification of documents, which varies according to the point of view from which the act is examined. A first distinction concerns the moment of the attested juridical fact: thus there are evidentiary documents (notitiae) and dispositive documents (chartae), according to whether the documented juridical action was already completed and valid prior to the drafting of the document, or whether it is the document itself that gives it completion and validity. A second distinction is based on the nature of the act, which may be political, juridical or administrative: the document differs in this sense both in its wording and in its diplomatic characteristics, and one distinguishes precepts, privileges, diplomas, placita, letters, mandates, and the various types of chartae and memoratoria (venditionis, offerionis, conventionis, locationis, pignoris, etc.). Finally the most important distinction, which constitutes the first foundation of special diplomatics, is based on the authority from which the act emanates and divides documents into two great categories: public and private. Public documents, that is, issued in public form by public authorities, are in turn subdivided into ecclesiastical (pontifical, episcopal, etc.), sovereign (imperial, royal, princely, etc.), communal and judicial. Pontifical documents, whose peculiar diplomatic characteristics begin to be distinguished toward the end of the 8th century, the era to which the oldest originals that have come down to us date, are divided into bulls (v.), briefs (v.) and motu propri (v.). Episcopal ones often conform to the characteristics of the pontifical document, especially in the more important sees (Ravenna, Constance, Reims, etc.), or else imitate the forms of the princely document: at times, however, they present themselves devoid of any chancery formality. Sovereign documents are essentially represented by privileges, letters and mandates; communal ones by reformationes (minutes of the sessions of the Council of the Commune), statuta, brevia ambaxiatorum (draft of preliminaries of pacts), bonni (public notices), mandata, litterae rectorum; judicial ones by procedural acts and in general by all documents connected with judicial proceedings (libelli, mandates, letters of summons, testimonial depositions, placita). The private document, on the other hand, is the one that concerns matters of private law, and is generally drawn up by the notary, though sometimes (as in the case of the chirograph [v.]) also by one or more contracting parties: it comprises a very great variety of acts, among which contracts, of various types, are especially important.

II. GENESIS

The formation of the document involves different persons, who act at two moments chronologically or logically distinct: that of the actio, which concerns the attested juridical fact, and that of the conscriptio, that is, of the documentation. The persons absolutely necessary for the creation of the document are the author, that is, the one who performs the documented action; the addressee, that is, the person to whom the document is destined; the rogator, that is, the one who draws up the act at the request of the author or of the addressee. To the actio contribute: the request made to the author by the addressee (petitio); the recommendation of that same request made by an influential person (intercessio); the participation of specific personages whose intervention was required (intervenientes), the consent (consentientes), or even simply the testimony (testes). To the conscriptio, on the other hand: the order given by the sovereign to the chancery (inissio) or the mandate of the private individual to the notary (rogatio) to draw up the act; the drafting of the minute (imbreviatura); the final drafting (mundum); the verification for chancery documents (recognitio), and finally the authentication (completio).

III. PARTITION

The document, whatever its type, is divided into specific parts identified by particular formulae, which may or may not appear in full, depending on the period, the nature, and the authority from which the act emanates. Their order too can, within certain limits, vary, but the typical sequence is indicated here, which will make it possible to distinguish the various parts even if arranged otherwise. The fundamental subdivision of a document is the one that distinguishes protocol, text and eschatocol (also improperly called final protocol).

1. The protocol is the set of initial formulae and comprises: invocation, intitulation, inscription and salutation. The invocatio is a pious appeal to the deity and originates from the Christian custom of invoking divine help before any action of a certain importance: it can be verbal, if expressed literally with specific formulae (in nomine Domini, in nomine sanctae et individuae Trinitatis, etc.), or monogrammatic (v. CHRISMON) and can also occur in both forms; it is completely absent in pontifical privileges from Leo IX (1049-54) onward. The intitulatio consists in the mention of the author's name accompanied by his titles and qualities; the inscriptio instead in the name, titles and qualities of the recipient; the salutatio in an expression of greeting in pontifical documents (salutem in Domino; salutem et apostolicam benedictionem), and of grace in royal and imperial letters (gratiam suam et omne bonum, etc.): it is absent in other sovereign documents as well as in private ones. In privileges, in its place is found the formula of perpetuity (in perpetuum; ad aeternam rei memoriam).

2. The text constitutes the central part of the document, the one that accounts for the content of the act and therefore varies in dependence on it both in extent and in wording. It is distinguished into arenga, publication, narration, disposition, sanction, corroboration.

The arenga (or exordium, or proemium, or prologus) is an introduction of a rhetorical character in which general principles or dogmatic truths are set out in some relation to the nature of the documented act: it is not essential and after the 12th century tends gradually to disappear, at least in the less solemn documents. The publicatio (or promulgatio or notificatio) is the formula that introduces the expository part of the document, making it known (notum sit omnibus; pateat omnibus, etc.). The narratio (or expositio) consists in the reference to the circumstances that gave rise to the act; the dispositio in the description of the act itself, in its details of time, place and person, and in its consequences: it constitutes the essential part of the document from the point of view of historical criticism, while for diplomatic criticism it is not of great interest. The sanctio comprises a set of expressions with which the legal character of the document is consecrated and certain obligations are established to guarantee observance of the juridical act. The corroboratio indicates the formalities followed for the validation of the document.

3. The eschatocol comprises dating, appreciation and subscription:

the first two, however, can also be found in the protocol. The datatio consists of the data topica and the cronica, normally preceded by the formula "actum" or "datum", which according to the most common interpretation refer respectively to the moment of the juridical act and to that of the traditio of the document (on the manner of expressing the chronological date v. ANNO; CALENDARIO; ERA). The apprecatio is an expression of good wish that follows the datatio (feliciter; in Dei nomine feliciter; amen): it links back to a classical usage, and after the 11th century tends gradually to disappear. The "benevalete" of pontifical documents does not fall within it, since, despite the affinity of meaning, it has a different origin and different diplomatic characteristics. The subscriptiones are of three kinds: of the author, of the consenting parties and witnesses, of the chancery or notarial. Leaving aside the other documents, it is noted here that in pontifical ones the pope at first used to affix a greeting formula on the letters in his own hand; in privileges the personal subscription is autograph only in the time of Paschal II (1099-1118) and his immediate successors: then the personal intervention of the pontiff manifests itself in the formula of the "bene valete" (v.) and then in the "rota"

(v.). The subscriptions of consenting parties are rare in pontifical documents, since the issuing authority has such power that it has no need of validation by witnesses; nevertheless in privileges, very rarely until Paschal II and with a certain regularity only from Innocent II (1130-43), the subscriptions of the cardinals appear, though almost never autograph. Finally, the participation of the chancery officials is evident in privileges from the autograph subscription of the drafter of the document, from the drawing of the "rota" and of the "benevalete", from the mention of the datary; in briefs, from the subscription of the secretary.

The characteristics listed are found in full only in the originals: diplomatics, however, does not neglect the study of copies (authentic or not), nor even of forgeries. It also takes into account, as does historical criticism for that matter, drafts, cartularies and registers (v.).

IV. ILLUSTRATION

The document (d.) normally does not present illustrations, and only in certain acts, drawn up with particular solemnity, do the chancery flourishes around the initials or the various "signa" acquire the character of ornamentation. Nevertheless, examples of illuminated documents with genuine illustrations are not lacking: but these are private documents, for which the author also wished to achieve an aesthetic effect.

Alessandro Pratesi

V. THE DOCUMENT IN CANON LAW

The document can be used in a trial as a means of proof.

It is necessary, however, for the document to fulfill the function of a means of proof, that it contain the signature of its author, since only with such a signature does it assume the nature of an instrument of certification. And the probative value of the document, that is, its effectiveness as a means of proof, is strictly dependent on the credibility of its author.

With reference to the trial, various distinctions can be made among documents. There are in fact instruments drawn up by the parties to the case and those coming from third parties; the latter are valid as proof only insofar as they are the proof of a juridical act or of a fact of the third party relevant to the decision. Furthermore, instruments are original or reproduced, according as they proceed directly from their author or are transcribed from the relevant original; true or false, according as they contain the true or the false; authentic or apocryphal, according as they actually come or not from the author to whom they are attributed; vitiated or intact, according as they are or are not altered by interpolation, erasure or correction; valid or invalid, according as they are or are not drawn up in observance of the legal norms relating to the conditions prescribed for them to have their full juridical value; public or private, according as they are received by a public official, or instead come from a private person (or even from a public official, outside the exercise of his functions). And this last is the most important distinction in procedural law. For the probative value of documents, the lex fori is normative, as a rule, that is, the law in force in the place where the trial is held; instead the form of the document is governed by the law of the place where the document was written.

The public documents of greater importance in canon law are listed in can. 1813 § 1 of the CIC (acts of the Pontiff, of the Roman Curia and of the Ordinaries, instruments of the no-

(phot. Alinari)

DODECANESE

Interior of the church of the monastery of Patmos.

notaries, judicial acts, certificates or attestations of Baptism, Confirmation, Ordination, religious profession, Marriage and death).

From the point of view of the evidentiary assessment of the document, the following principles must be kept firmly in mind: 1) that public documents are presumed genuine until proof to the contrary (can. 1814); 2) that the documents themselves constitute full proof of what is their direct and principal content (can. 1816), whereas elements extraneous to that content have merely indicative value; 3) that both of these presumptions, based on the fact that, since public documents are drawn up through the work of a public official, they are to be considered as corresponding to the truth with regard to what is attested therein to have occurred in the presence of the public official, may be overcome by a judicial challenge to the document (querela di falso).

Private documents, on the other hand, have probative value equal to that proper to an extrajudicial confession (v. CONFESSIONE) only if they have been acknowledged by the party against whom they are used in court or by the judge (can. 1817), if the judge has established their authenticity (can. 1817). Moreover, private documents — unlike public ones — have no effect with regard to third parties outside the proceedings.

Both public and private documents may be the subject, in court, at the initiative of the interested party — incidentally, at any stage and level of the case — or in separate proceedings, of recognition and challenge (can. 1816).

The querela di falso is properly the means granted by law to obtain a declaration of falsity of a document, whether public or private (v. FALSO; QUERELA).

Finally, as regards the production of documents in court, the following principles in force in the ecclesiastical process should be considered (cann. 1819-24): a) it may occur voluntarily or compulsorily, in which latter case it is for the most part the object of a special action, called actio ad exhibendum; b) the time available for the production of documents is the evidentiary period that runs from the litis contestatio to the conclusio in causa; c) particularly for the actio ad exhibendum the only condition laid down by law, with the evident and just intent of not allowing one party to benefit in court from arguments and evidence that are exclusively pertinent to the opposing party, for the bringing of that action, is that the documents be common or in any case concern a common juridical transaction (instruments relating to succession, divisions, etc.); d) in deference to the principle nemo cogitur edere contra se, no one is, however, bound to exhibit documents, even common ones, where their exhibition would give rise to a danger of grave harm. - See plate CIV.

Fernando Della Rocca