Origins and Historical Development
The origin of the *appel comme d'abus* (today little more than a historical memory) is closely tied to the rise of those doctrines known as regalism, which attributed to the State the right to exercise a veritable oversight of legitimacy over acts performed by the organs of the Church (v. REGALISM). The first examples of the *appel comme d'abus* are found in the 15th century in France, where the Parliament, tasked with overseeing the execution of the Pragmatic Sanction (v.), gradually extended the limits of its competence until it received all manner of appeals against prelates. In the 16th century, the *appel comme d'abus* became one of the most effective means for defending the liberties of the Gallican Church (v. GALLICANISM) and was regulated by specific legislative norms, such as the Ordinance of Villers-Cotterêts (August 1539), the Edict of Charles IX of April 16, 1571, and the Ordinance of Blois (May 1579). If the Parliament deemed an ecclesiastical act abusive, it was declared null, and fines could be imposed on its author, the collection of which was permitted through the sequestration of temporalities; the parties could appeal the Parliament’s decision to the King’s Council. The Revolution, following the abolition of the old judicial organs, assigned jurisdiction over *appels comme d'abus* to the district tribunals (Decree of November 15, 1790). Later, the famous Organic Articles (v.)—added by the law of April 8, 1802, to the Napoleonic Concordat and abrogated only by the Separation Law of December 9, 1905—regulated the matter anew, providing for appeals 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; violation of the laws and regulations of the Republic; infringement of the norms sanctioned by the canons received in France; attacks on the liberties, franchises, and customs of the Gallican Church; and finally, any act or proceeding in the exercise of worship that could compromise the honor of citizens, arbitrarily disturb their consciences, or result in oppression, injury, or public scandal against them.
A similar evolution occurred in Spain, where, in the 16th and 17th centuries, the institution was known as *recurso de fuerza*. In Germany, however, 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 spread at different times into the legislation of the various Italian states. In Piedmont, the law of October 30, 1859, established, in accordance with the Napoleonic model, that the Council of State in general assembly was competent to hear appeals against abusive acts of ecclesiastical authorities; this norm was preserved after the proclamation of the Kingdom of Italy in the law of March 20, 1865. The Law of Guarantees (May 13, 1871) sought to stipulate in Article 17: “In spiritual and disciplinary matters, no appeal or *appel comme d'abus* is permitted against the acts of ecclesiastical authorities.” But could it be said that the *appel comme d'abus* was definitively abolished in Italy? Some expressed doubt, arguing from the fact that the provision of the law of March 20, 1865, was repeated, very likely by error, in the consolidated texts of the laws on the Council of State of 1889, 1907, and 1924. Today, however, no doubt remains on this point, since Article 1 of the Concordat with the Holy See expressly declares that “Italy assures to the Catholic Church the free exercise of its spiritual power, as well as of its jurisdiction in ecclesiastical matters,” and Article 23, paragraph 2, of the Lateran Treaty gives full executory force in Italy to the judgments rendered by Church tribunals against ecclesiastical or religious persons.
Church Doctrine
The attitude of the Church toward this institution was always, as is easily understood, one of open and uncompromising hostility. Indeed, the *appel comme d'abus* constituted, in the first place, a legal absurdity, inasmuch as it entrusted the interpretation and application of ecclesiastical laws to organs belonging to a legal system different from that from which the laws themselves emanated; it represented, moreover, a clear diminution of the sovereignty of the Church, whose hierarchies were placed in a position of inferiority relative to those of the State; and it finally provided civil authorities with a convenient occasion to perpetrate injustices and abuses.
It is therefore no cause for surprise that the Church has at all times punished with severe sanctions those who, availing themselves of State laws, dared to resort to the secular forum to obtain the annulment of the acts of ecclesiastical authority. It would be too lengthy to list the numerous constitutions promulgated in this regard by the Popes, beginning in the 15th century. We shall recall only that the Council of Trent (Session 25, *De Reformatione*, c. 3) solemnly reprobated the recently established practice 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 “under the pretext of some frivolous appeal from a grievance” (*praetextantes frivolanti quamdam appellationem a gravamine*) had recourse to civil magistrates; and that the *Syllabus* of Pius IX condemned, among other propositions, the following: “Civil power, or that exercised by an infidel ruler, has not only the so-called right of *exequatur*, but also the right of appeal which they call *ab abusu*.”
The current *Codex Iuris Canonici* provides for the delict of those who resort to secular authority to impede the acts of the Apostolic See or the exercise, in general, of ecclesiastical jurisdiction, in canons 2333 and 2334, n. 2 (v. AUTORITÀ ECCLESIASTICHE, delitti contro le).