TRIBUNALI ECCLESIASTICI

ECCLESIASTICAL TRIBUNALS. – These are the organs to which the exercise of jurisdiction in the strict sense, that is, the judicial function belonging to the Church, is normally entrusted.

Although in the Church, by virtue of its divine organic constitution, all public power, including judicial power, resides in the Pope and the bishops, and thus any original separation of functions is excluded in principle, the practical necessity for such a separation became increasingly evident—given the expansion of the Church and the development of its institutions and law—in order to entrust the exercise of judicial functions to specially qualified persons or bodies. Hence the various ecclesiastical tribunals, which are structured analogously to the ecclesiastical hierarchy: there are tribunals of the Holy See, directly attached to it, and metropolitan and episcopal tribunals, which constitute, so to speak, the ordinary decentralized organs of ecclesiastical justice, that is, those attached to the ordinary hierarchical organization of the Church according to the territorial distribution of individual dioceses.

I. TRIBUNALS OF THE HOLY SEE.

I. APOSTOLIC PENITENTIARY.

It is the supreme tribunal of the Church for the internal forum.

I. HISTORY

As in the rest of Christendom, so too in Rome provision had to be made to organize the administration of the Sacrament of Penance in the basilicas and titular churches, with special regard also to pilgrims who, out of voluntary devotion or as penance for grave sins, flocked to the tombs of the Apostles. However, the establishment and organization of a true tribunal for cases of conscience in relation to the needs of the universal Church came about only gradually; that is, as ecclesiastical discipline was perfected and jurisdictional powers were centralized in the Roman Curia. In 1193, a certain Giovanni di S. Paolo, Cardinal of S. Prisca, is recorded as “qui confessiones pro papa tunc recipiebat”; it is not stated, however, that he was the first to hold this office, and he certainly must have had assistants or minor penitentiaries. Under Honorius III (1216–27), the names of some such penitentiaries are recorded, including several friars, probably Cistercians. Under Gregory IX, his successor, Dominicans (such as St. Raymond of Peñafort) and Franciscans also appear in this office, as they did under every pope of the 13th century. By force of circumstances, they had to follow the papal court when it moved outside Rome and were assimilated to the papal chaplains and familiars and to the apostolic notaries, thanks to the position of trust they held and the delicate matters often entrusted to them. Under Boniface VIII, it can be established with certainty that there were one or two major papal penitentiaries, now predominantly friars, tasked with quickly and without expense disposing of those who appealed to them. Even when the penitentiaries had to follow the Curia to Avignon, some remained in Rome; in 1339, it is known that there were four. As the functioning of this tribunal became more precise, it was found to be headed by a cardinal with the title of *poenitentiarius maximus*, *summus*, or *generalis*. The General Council of Vienne (1311–12), under Clement V, established that his faculties did not cease even during the vacancy of the Apostolic See, given the practical importance for the faithful and the long vacancies that unfortunately afflicted the Church at that time. The same Clement V entrusted the then Major Penitentiary, Cardinal Bertrand de Déaulx, Bishop of Tusculum, with reorganizing his office, limiting the number of scribes to twelve (*Constitution Dignum est*, 2 Sept. 1311); this shows that the issuance of absolutions, dispensations, and other rescripts had assumed considerable proportions, though precise details are lacking.

Benedict XII (bull *In agro dominico universali Ecclesiae*, 8 Apr. 1338) issued new and precise norms for the organization and functioning of the Apostolic Penitentiary, now established as a curial organ with its own structure. To the Cardinal Penitentiary was added a canonist as an expert and advisor in all pending matters; a certain number of minor penitentiaries were appointed with delegated faculties for reserved absolutions and dispensations; scribes and correctors for drafting rescripts; distributors and dispatchers; procurators or advocates. The specific field of competence was the internal forum; but by the very nature of the matters submitted, which sometimes exceeded the strict limits of the internal forum and had some bearing on the external forum—partly due to the tendency of every office to expand its competence, especially in doubtful cases—the Penitentiary, during the 15th century, appeared to have powers and faculties far broader than the original ones. The popes of this age further enlarged its sphere of action with new faculties, and Sixtus IV (bull *Quoniam nonnulli*, 9 May 1484) recognized this state of affairs, confirming certain faculties concerning the external forum.

In the 16th century, however, the Penitentiary itself underwent a radical reform. Paul III, in 1534, established a special commission to prepare it, encountering tenacious opposition from the Cardinal Penitentiary; the relevant bull was published only by his successor, Julius III, in 1550 (bull *Rationi congruit*, 22 Feb.), and Pius IV, completing the work, issued a new bull on 4 May 1562 (*In sublimi beati Petri solio*), by which the jurisdiction of the Penitentiary was severely restricted: certain matters of the external forum were assigned to the Apostolic Datary, the faculties of the Cardinal Penitentiary himself were confined to the internal forum, and any further extension of the tribunal’s powers was prohibited under severe penalties.

St. Pius V, to provide for a new arrangement of the Penitentiary, issued three bulls on 18 May 1569: the first, *In omnibus rebus*, abolished the existing Penitentiary altogether in order to reconstitute it anew, essentially on the basis of Benedict XII’s foundational bull; with new personnel, strictly defined duties, and a regent as the Cardinal Penitentiary’s immediate assistant, a datary, a theologian and a canonist as experts in difficult cases, scribes and procurators (only two), and a seal-keeper; the precise duties of each were established. The bull further granted the new Penitentiary the explicit faculty to resolve *ex officio* doubts and questions of conscience with interpretations having the character of authentic decisions. The second bull, *Ut bonus*, limited the various faculties of the Penitentiary’s officials, and the third, *In earum rerum*, reaffirmed the principle that the tribunal of the Penitentiary was concerned solely with the internal, sacramental and extrasacramental forum. The duties of the minor penitentiaries were also reorganized, and true colleges were established for them: one for the Basilica of St. John Lateran, composed of Reformed Franciscans; a second for St. Peter’s Basilica, composed of Jesuits; and a third for the Basilica of St. Mary Major, composed of Dominican friars. After the suppression of the Society of Jesus (1773), the Jesuits at St. Peter’s were replaced by Conventual Franciscans.

However, the cardinal penitentiaries often obtained, sometimes through lively oracular voices, additional faculties, with the old tendency to expand their competence even beyond their external jurisdiction. Urban VIII (17 Sept. 1634) attempted to impose some restrictions, and Innocent XII, with the bull *Romanus Pontifex* (5 Sept. 1692), issued a definitive catalogue of the tribunal’s attributions. Half a century later, Benedict XIV, with four documents, again sought to define the structure of the Penitentiary. With two bulls dated 13 Apr. 1744 (*Pastor bonus* and *In Apostolicae*), new and precise norms were issued for the handling of various penitential causes: absolutions of reserved cases, matrimonial dispensations and dispensations from irregularities, dispensations and rescripts in other matters of conscience, authentic solutions to proposed doubts; these norms circumscribed the faculties pertaining to the officials. Then in 1747 (bull *Quamvis*, 13 Dec.) and in 1748 (bull *Pastoralis*, 15 Aug.) he made some adjustments and clarifications to his previous norms. The Penitentiary again had occasion to expand its field of action, especially during the difficult period of the revolutionary occupation and Napoleonic domination, regaining faculties in the external forum, albeit with certain limitations, until the great reorganization by Pius X in 1908 gave it its current structure, as set forth in the *CIC*.

II. CURRENT ORGANIZATION

Can. 258 § 1 of the *CIC* states that the Tribunal of the Apostolic Penitentiary “for the internal forum alone grants graces, absolutions, dispensations, commutations, sanations, condonations; it also examines and resolves questions of conscience.” It is specified for the internal forum alone because for the external forum other dicasteries of the Holy See provide. Only exceptionally do the provisions of this sacred tribunal have force also in the external forum (cf. cann. 1047 and 2251 and the apostolic constitution *Quae divinitus* of 25 March 1935; *AAS*, 27 [1935], pp. 97-113). Attached to the Tribunal of the Apostolic Penitentiary since the time of Benedict XV (25 Apr. 1917) is the Office of Indulgences, so that “it pertains also to judge everything relating to the use and granting of indulgences, except the right of the Holy Office insofar as concerns the doctrinal aspect of indulgences and the discipline of new devotions” (can. 258 § 2).

The Apostolic Penitentiary today consists of two sections: the Tribunal and the Office of Indulgences. It is governed by the Major Penitentiary (SS. DD. Nostri Papae et S. Sedis Apostolicae Maior Paenitentiarum). He is first and foremost the penitentiary of the Pope, and thus it is his office to assist the Pope at the point of death; as Major Penitentiary of the Apostolic See, he has very extensive powers over all the faithful in cases of conscience and for the granting of indulgences. Exclusively dependent on him, in matters concerning confession, are the four patriarchal basilicas of Rome (St. John Lateran, St. Peter in the Vatican, St. Mary Major, St. Paul Outside the Walls) and the basilicas of Italy immediately subject to the Pope (such as those of St. Francis in Assisi and St. Anthony in Padua), where he appoints, precisely for the ministry of confession, the minor penitentiaries. He also grants them certain special faculties to absolve from censures and to dispense from vows, irregularities, or impediments; similar faculties he may grant also to other confessors throughout the world. In the event of a vacant See, the Major Penitentiary retains all his faculties, and in cases of grave and urgent necessity he may do what is ordinarily reserved to the Pope personally (const. *Quae divinitus*, n. 12; cf. the const. *Vacantis Apostolicae Sedis* of 8 Dec. 1945, n. 17; *AAS*, 38 [1946], p. 72). During the conclave, the Major Penitentiary is permitted to communicate with the office of the Apostolic Penitentiary, and letters sent and received, bearing the seal of that office, are not subject to the examination prescribed for all other correspondence (const. *Quae divinitus*, cited n. 12; cf. the const. *Vacantis Apostolicae Sedis*, cited, n. 17). Should the Major Penitentiary die during the vacancy of the Holy See, the cardinals must appoint the cardinal who, during the vacancy, will serve as Major Penitentiary (const. *Vacantis Apostolicae Sedis*, cited, n. 14).

The cardinal penitentiary is assisted by a superior prelate called the regent. The secretariat office comprises, besides the regent, a secretary, two substitutes—one for the Tribunal and the other for Indulgences—and other officials (const. *Quae divinitus*, nn. 1 and 2). Also part of the Apostolic Penitentiary is a council of prelates who meet periodically under the presidency of the Major Penitentiary, of which they form the council, in the so-called “Sacred Signatura of the Apostolic Penitentiary.” In this body the most complicated and serious cases are handled (const. cited, nn. 5 and 6).

All other cases are handled in the Congresses for the Tribunal and for Indulgences by the regent and the secretary with the substitute of the respective section. The three officials who participate in the Congresses are jointly responsible before the Major Penitentiary, who may, if he deems it opportune, reserve to himself the final approval of all resolutions taken in Congress (const. cited, n. 6a). The more important cases, whether from the Signatura or the Congress, are then reported and submitted by the Major Penitentiary to the Holy Father in the periodic audiences (const. cited, n. 6c).

Recourse to the Apostolic Penitentiary for matters concerning the Tribunal may be made directly by the interested party or, by their express mandate, by the confessor (cf. cann. 2252, 2254, and 2290); in practice, recourse through the confessor is preferable. The case should be presented without names or with fictitious names, briefly, but with all circumstances deemed necessary or useful for a more accurate judgment on the matter. The presentation may be made in the vernacular; preferably, when clarity and precision are not thereby compromised, in Latin. The place and date should not be omitted, with a full address for the reply.

Recourse to the Apostolic Penitentiary—for matters concerning Indulgences—should ordinarily be made through one’s own ordinary.

II. APOSTOLIC SIGNatura.

It is the supreme ecclesiastical tribunal, superior to diocesan and regional tribunals and even to the Sacred Roman Rota; it presents a certain analogy with the Court of Cassation in relation to Italian tribunals. Although it is not an appellate tribunal, like the Sacred Rota, because it is concerned more with procedural questions for the vigilant protection of the laws (cf. AAS, 8 [1916], p. 209), it sometimes also deals with questions of merit; it extends its competence both in the strictly judicial sphere and in the administrative sphere, always however in relation to justice.

1. Historical notes

A referendary was one who, in the final period of the Roman Empire, concerned himself with and reported to the emperors on the petitions addressed to them by citizens. This office then passed into some episcopal curiae and into the Roman one.

In the 6th century mention is already made of the *iudices palatini*, as advisers to the Pope in the handling of cases. Cardinals were the Pope’s natural advisers, but some cases were also entrusted to other officials of the palace (10, X, 11, 22). At the beginning, requests to the Pope were made orally, but after Innocent III all acts were in writing, and the Pope began to respond fully to the requests made to him, appending a sign of his own hand, which was gradually defined by precise norms and remained thereafter unchanged, such as *fiat*, *fiat ut petitur*, *fiat et dispensamus*, *fiat de omnibus*, *fiat motu proprio*, *fiat sub data petita*, etc.; alongside this he placed the initial of his baptismal name, at least from Boniface IX onwards (before that the rule governing the apposition of the name is unknown). Thus the *Signatura* came into being. Not all petitions (v.) were annotated by the Pope: some were annotated by others by special mandate or even by general mandate in certain matters. Sinibaldo Fieschi, later Innocent IV (1243–54), explicitly mentions the title of referendary in his *Commentaria*, whereas previously the same function had been performed by the notaries of the Apostolic Chancery; the earliest person historically identified with the title of referendary is the Spaniard Peter Roderico, under Boniface VIII, in 1294.

From the pontificate of Eugenius IV (1431–47) a new method of marking petitions by the intimate referendary appears, with the formula: *Concessum in praesentia domini Papae*.

The office of the *Signatura* thus originated from the fact that an ecclesiastical dignitary was granted the faculty of signing, in the Pope’s name, the rescripts that the Pope did not reserve to himself. This official then became the head of a group of referendaries, and under Sixtus IV (1471–84) there existed a *Signatura communis*, distinct from the papal *Signatura*. When the distinction between the *Signatura Iustitiae* and the *Signatura Gratiae* occurred is not easy to say (cf. W. V. Hofmann, *Forschungen zur Geschichte der Kuriaren Behörden vom Schisma bis zur Reformation*, Rome 1914, I, pp. 67–79; II, pp. 131–34).

It is not known how much truth there is in the report that already under Sixtus IV the distinction between the referendaries of the *Signatura Gratiae*, who were to number ten, and those of Justice, in the number of six, would have been outlined. Certainly at that time there was a complete separation from the Apostolic Chancery (v.). Alexander VI on 4 May 1493 separated the two *signaturae* (the distinction therefore existed beforehand). Under Julius II (1503–13) each *Signatura* was presided over by a prefect, and thus the division of both *Signaturae* was complete. The abuses introduced provoked attempts at reform by the Renaissance popes; these were never, however, fully applied, not even at the Council of Trent, which limited itself to making some observations without special ordinances.

The first true reform, however, is due to Pius IV (cf. the bull *Cum super nos* of 1 July 1562); Sixtus V then, with his famous bull *Immensa aeterni Dei* of 22 January 1588, reformed, along with the entire Curia, also the two *Signaturae*; the *Signatura Iustitiae* retained the characteristics and prerogatives of a tribunal, while the *Signatura Gratiae* was transformed into one of the 15 congregations, with a well-defined competence. At the head of each of the two *Signaturae* a cardinal was placed. Sixtus V also reduced the number of referendaries to one hundred, of whom no more than seventy could be attached to the *Signatura Gratiae*. From Clement VII (1523–34) onwards they were called referendaries of both *Signaturae* and served indifferently in either. The *Signatura Iustitiae* was erected into a true tribunal; some referendaries became true judges and were called *praelati votantes*, having a decisive vote in judgments, while the others did not. Alexander VII, on 13 June 1659, erected a college of referendaries of both *Signaturae*, which he wished to be formed of twelve voting members of the *Signatura Iustitiae*. These voting referendaries were at the same time referendaries of the *Signatura Gratiae* and of Justice. The prefects of the *Signatura Gratiae*, from the pontificate of Clement IX onwards, are no longer encountered. The task of the *Signatura Gratiae* was the dispatch of business in matters of grace, which had to be resolved by the Roman Pontiff himself, whether contentious or non-contentious matters, such as extraordinary remedies against a judgment, the granting of the clause *appellatione remota* or its removal, the commutation of last wills, etc. The referendaries examined the cases entrusted to them and reported on them in assemblies, which were presided over by the Pope with the participation of the cardinals whom he summoned and of the prelates having jurisdiction in the city (cf. I. De Luca, *Relatio Curiae Romanae*, Cologne 1683, disc. 30, pp. 163–64).

From Clement IX (1667–69) onwards almost all the functions of the *Signatura Gratiae* were transferred to the Apostolic Datary, and the *Signatura Gratiae*, instead of meeting every week as before, began to assemble once or twice a year, as it was under Benedict XIV. Under him it was not the Prefect of the *Signatura Gratiae* but the Pope’s datary, Giovanni Giuseppe Millo, who signed the petitions with the clause *concessum in praesentia*. Even after he became a cardinal, Millo continued in the same way, assisted by the officials of the Datary; his successors did the same. The two *Signaturae* thus lasted until the French Revolution. Meanwhile the referendaries, divided into voting and non-voting, participating and non-participating, continually obtained new and greater privileges from the Roman Pontiffs.

After the reconstitution of the Papal State, Pius VII, on 6 July 1816, with the motu proprio *Quando per admirabile*, laid the foundations of the new legislation, and the *Signatura Iustitiae* became a civil tribunal and remained so, with some modifications under Leo XII and Gregory XVI (*Regolamento legislativo e giudiziario* of 1814; *Acta Greg. XVI*, IV, Rome 1904, p. 209 ff.), until the fall of the temporal power. The *Signatura Gratiae* was revived by Leo XII in 1826, but lasted only a short time, because after the death of Cardinal Cacciapiatti in 1839 no more mention was made of this *Signatura*, and in 1899 Leo XIII even suppressed the register of petitions. Thus matters stood until the reform of Bl. Pius X on 29 June 1908, which reunited in a single body the competences of the two ancient *Signaturae*.

Its manner of proceeding is regulated by the *Lex propria Sacrae Romanae Rotae et Signaturae Apostolicae*, annexed to the constitution. On 6 March 1912, with the approval of the same Pope, complementary norms were promulgated: *Regulae servandae in iudiciis apud Supremum Signaturae Apostolicae Tribunali* (AAS, 4 [1912], pp. 187–206). Benedict XV extended the competence of the Apostolic Signatura with the chirograph *Attentis expositis* of 28 June 1915 (AAS, 7 [1915], pp. 320–325); and in the same year, on 3 November, he approved other norms, presented to him by Cardinal Lega, prefect of the Apostolic Signatura, so that activity in the administrative and gracious sphere might be regulated: thus there came into being the *Appendix ad regulas servandas in iudiciis, apud Supremum Signaturae Apostolicae Tribunale* (P. Gasparri, *CIC Fontes*, VIII, Rome 1938, pp. 608–18).

II. CONSTITUTION OF THE TRIBUNAL OF THE APOSTOLIC SIGNATURE

At present the Apostolic Signature is composed of an indeterminate number of cardinals, who are the true judges of the Supreme Tribunal, with deliberative vote; among these one is Prefect. Immediately following is the Most Excellent Secretary, who holds the title of Auditor Sanctissimi (cf. the chirograph of Benedict XV Attentis expositis: AAS, 7 [1915], p. 324). He personally directs the activity of the Tribunal and often, together with the Cardinal Prefect, directly decides many matters. Following them are the voting prelates and the referendaries, who perform functions similar to those of the consultors of the Sacred Congregations, the former with deliberative vote, the latter with consultative vote. There are seven voting prelates, plus two supernumerary; the number of referendaries, however, is not defined. Of the voting prelates, one is Promoter of Justice, the other Defender of the Bond. The stable officials of the Tribunal are the summoners, the notary, and the archivist-protocolist.

III. COMPETENCE

The competence of the Apostolic Signature is summarized by the CIC in cann. 1602–1605. It is of a judicial and administrative nature and extends also to the civil forum of the Vatican City State. In the ecclesiastical forum it is territorially limited by the Sacred Congregation for the Oriental Church (cf. the motu proprio Sancta Dei Ecclesia of 23 March 1938, in AAS, 30 [1938], p. 154); as to its object, it is limited by the Congregations of the Holy Office and of the Sacred Rites (can. 259) and by the Pontifical Commission for the Authentic Interpretation of the CIC.

In the first place, its object includes matters concerning the activity of the members of the Sacred Roman Rota and it judges violations of secrecy by the prelates auditors and damages arising from a null or unjust act (can. 1603 §1, n. 1), as well as exceptions of suspicion raised against any auditor-prelate and, if necessary, decrees their replacement (can. 1603 §1, n. 2); complaints of nullity against Rotal sentences, when not joined with an appeal, are always brought before the Apostolic Signature (can. 1603 §1, n. 3). To it is reserved the restitutio in integrum against Rotal sentences that have become res judicata but are manifestly unjust for reasons of fact or law, such as the falsity of some document, the fraud of one of the parties, or the production of new documents that undermine the thesis that appeared proven (can. 1603 §1, n. 4). Finally, it grants, when the case arises, the benefit of a new examination of Rotal sentences in matrimonial causes and in all those concerning personal status that have not become res judicata, if the Sacred Rota refuses to grant a new instance (can. 1603 §1, n. 5). In these cases, generally, after the decision of the Apostolic Signature, the matter is again treated before the Sacred Rota, unless the Signature itself, by papal commission, must enter into the merits of the cause.

In case of conflict of competence between different tribunals, there is, according to the circumstances, either the faculty or the obligation to have the matter resolved by the Signature, unless such conflicts are to be resolved by another tribunal or by the legate of the Holy See, according to the places (can. 1612). As a result of the Concordat between the Holy See and Italy (art. 34), Austria (art. VII, 64), and Portugal (art. 25), it falls to the Signature to give formal revision to sentences in matrimonial causes before they are transmitted to the authorities of the respective states for civil effects. The Signature sometimes judges directly on the merits of causes, in first, further, or final instance, but this is not by ordinary competence, rather by papal commission. Moreover, the Signature exercises jurisdiction in an administrative manner when it examines petitions directed to the Roman Pontiff to obtain that a cause be treated in first instance before the Sacred Rota (can. 1603 §2), or that it be withdrawn from one tribunal and transferred to another. Many cases may still arise, not contemplated by the CIC, which offer occasions for those who may have an interest to apply to the Apostolic Signature with petitions in which aliquid petitur quod potissimum respiciat administrationem iustitiae (cf. the Chirograph of Benedict XV, loc. cit., p. 323). Finally, after the establishment of the State of the Vatican City, the Apostolic Signature has become the Supreme Civil Tribunal of that State. It therefore acts as a Court of Cassation, within the limits, of course, of the pontifical territory (cf. Lex fundamentalis, in AAS, Supplement, 21 [1929], p. 3).

IV. PROCEDURE

First of all, a distinction must be made between the Congress and the Full Plenary Signature. The former is composed of the Cardinal Prefect, the Secretary, and the voting prelates; it deals with matters of lesser importance and meets in the offices of the Signature at the Palazzo della Cancelleria. The Full Plenary Signature is composed of all the cardinals belonging to the Tribunal, who assemble in the Vatican on Saturdays. Besides the Secretary, those voting prelates who have studied the matters of the day are invited. The most important matters are reserved to the Full Plenary Signature, but it is well-nigh impossible to define in an absolute manner the limits of its attributions, also because the Congress may have powers delegated by the Supreme Pontiff.

According to the different kinds of matters, the procedure of the Signature also varies.

Here, however, is a general outline regarding judicial matters. The party having an interest presents a libellus to the Secretary, through the notary-protocolist, setting forth the grounds of the appeal and depositing a cautionary sum.

The Secretary entrusts the case to a referendary-prelate and to one or more voting prelates, according to the circumstances, so that they may study it, and one of the voting prelates then reports to the Congress. If the matter is not of grave importance, it is decided at once; otherwise, the decision is remitted to the Full Plenary Signature. Here the proceedings follow the ordinary process and are very simple: the Secretary establishes the joinder of the issue and the instruction is closed. The Defender of the Bond or the Promoter of Justice, or both, according to the case, intervene; naturally, the advocate of the party also intervenes; the voting and referendary prelates, assigned in the individual cases, may, upon invitation, make their observations. One of the cardinals acts as rapporteur and ponens on the day of the Full Plenary Signature, and all cast their votes, written or oral. Thus the sentence is arrived at, which may also be reasoned.

When the matter concerns an appeal for some favor or commission, the final report is submitted to the Roman Pontiff by the Cardinal Prefect or the Secretary, and the favor obtained is then communicated to the interested parties by a decree of the Signature bearing the clause Ex audientia S.Mi. There is no possibility of appeal from the Congress to the Full Plenary Signature. If the first instance gives a negative response, however, one may persist with the same Congress.

For the Signatura S. Poenitentiaria, V. above, I. Penitentiaria Apostolica.

III. SACRED ROMAN ROTA

Ordinary tribunal for the universal Church, established by the Holy See to receive, on appeal, from any other ecclesiastical tribunal—diocesan or regional—the sentences in second and further instances.

2. HISTORICAL NOTES

The origins of the Tribunal can be traced back to the 12th century, with the so-called Papal Chaplains, entrusted with hearing in the Pope’s name causes which he did not wish to handle personally or through the Cardinals; and precisely in that period Lucius III (1131-85) began to revive Roman law as an aid to canon law. Already under Innocent III (1198-1216) there is mention of about ten magistri bearing the title of auditores causarum or Papal Chaplains: and not by chance were they invested with such titles, because in reality these Chaplains were charged with instructing causes and judging in the Pope’s name, whose sentence they would then confirm (cf. E. Cerchiari, Capellani Papae et Apostolicae Sedis Auditoris Causarum Sacri Palatii Apostolici seu Sacra Romana Rota ab origine ad diem 20 sept. 1870, III, Rome 1920, pp. 6-11). Under the pontiffs who immediately followed Innocent III, the presence of the Chaplains became permanent and their number increased: alongside the title of Papal Chaplains one also finds that of Chaplains of the Apostolic See and Auditors of the Sacred Palace. Under Boniface VIII (1294-1303) the common title was: Chaplain of the Pope and Auditor of Causes of the Pope’s Palace. Information on the manner of proceeding of the Chaplains in the 13th century can be read in the work Speculum iuris written by William Durand (d. 1296), who was one of the most illustrious chaplains of early times (v. Durando, Guillaume). These officials had as their duty the handling of causes as true judges, but with delegated authority deriving from a commission entrusted to them from time to time; as the number of cases grew, the Chaplains proceeded under a single general commission, and were therefore also called General Auditors of the Palace of the Lord Pope. Their jurisdiction was never considered ordinary in an absolute sense, nor perpetual: at the death of each pontiff the activity of the Auditors ceased outright.

When John XXII in 1331 laid down the Ratio Iuris, the college of Chaplains must have been very flourishing and at that point a true organization of the tribunal came into being, with a special regulation and its own seat within the papal palace at Avignon. The said Ratio iuris remained as the magna carta of the Auditors. They formed an autonomous college, no longer part of the papal consistory. They indeed judged even in its absence: they had assistants and notaries; work was distributed in such a way that the senior Chaplain assigned to himself the first causes that arose, gradually assigning the following ones to the others. The figure of the ponens or reporter of the cause necessarily also took shape. The Chaplains, even if they never formed an integral part of the Chancery, always maintained a certain bond of union with the chancellor (later vice-chancellor), and all new Auditors took their oath in his hands. Under Martin V (1417-31) this dependence grew stronger and remained so until 1870. When the privilege of the Chaplains to be counted among the Officials of the Apostolic See was questioned under Benedict XII (1334-42), the same Pope in January 1335 confirmed this qualification with the constitution Cum sicut accepimus.

The name Rota spread during the Avignon period from the beginning of the 14th century. Among the Pope’s furnishings there was also a rotating support, a rota, on which the rolls of causes were placed: it seems that the tribunal and the Chaplains took their specific designation either from that support or from the fact that the Auditors sat in a circle. According to others, however, the name Rota derives from the fact that causes were judged in turn. For the first time in documents the word Rota appears in the collection of decisions of the Auditor Thomas Fastolf, published in 1337.

During the Avignon period the number of Chaplains was never fixed and the group of its members, although forming a college, had not yet succeeded in enjoying special rights. Callistus III (1455-1458) and Pius II (1458-64) intended to complete this evolution, but in fact never carried out their plan. As for the number, only Sixtus IV (1471-1484) on 10 July 1472, with the bull Romani Pontificis, fixed it at twelve. He himself made exceptions, as later did Innocent VIII (1484-92) and Alexander VI (1492-1503); at that time it was generally required for admission to the college that they had taught law in some public university. From Pope Julius II (1503-13) onwards the number remained unchanged and no further exceptions were made until the year 1870. The appointment of the Chaplains always came directly from the Pontiff, although the privilege was granted of two Auditors, one for the Kingdom of Castile and one for that of Aragon. Germany soon afterwards also had its Auditor. France obtained one under Sixtus IV in the person of William de Perri, the same Pope having made an exception for the already complete number of its members. Other states and cities were able to obtain the privilege of a Chaplain within the College of the Rota: Bologna in 1507, under Pope Julius II; Milan in 1562, under Pius IV; Venice in 1585, under Sixtus V; Ferrara in 1597, under Clement VIII; and finally Perugia, under Urban VIII. This diversity of origin and background among the Auditors has always been a characteristic of the College of the Rota: all its members, however, were always equal in rank and rights.

The jurisdiction of the Rota could extend to causes of the most varied subject matter and importance: ecclesiastical, civil, and even of public law. Among the matters submitted to its judgment may be recalled the matrimonial cause of Henry VIII with Catherine of Aragon, the question of the investiture of the Duchy of Ferrara, the disputed precedence between the two basilicas of the Lateran and the Vatican, and the difference between cardinal priests and deacons regarding the right of option. Only on 2 October 1746, with the constitution *Iustitiae et pacis*, Benedict XIV definitively defined the jurisdiction of the Rota; if in past times it had not generally acted as an appellate tribunal, now it assumed almost the nature of one. The Pope in fact first determined which causes were to be called *minus graves* and which *graviores*; he then fixed the jurisdiction of the various tribunals of Rome, that of the Curia Capitolina, that of the Cardinal Vicar, and that of the Auditor of the Apostolic Chamber; finally, he attributed to the Rota all the major causes arising both from the tribunal of the Cardinal Vicar and from that of the Auditor of the Chamber, and all those arising from any part of the Roman Curia. Moreover, as a consummate jurist, he distinguished the various cases in which the Chaplains could act individually as simple prelates, without engaging the college of the Rota, and when they had to act as auditors of the tribunal of the Rota. From the 15th century onwards, both individual members and the entire Rotal College saw their privileges and honours continually increased by the Roman Pontiffs, who were well aware of the importance of their service; it is noteworthy that no fewer than five Roman Pontiffs emerged from the college of the Rotal Auditors: Clement VIII, Gregory XV, Innocent X, Alexander VIII, and Clement XIII.

The importance and influence of its jurisprudence were always considerable. The decisions of the Rota, always reasoned and often published, were frequently cited by jurists and judges of every tribunal and exercised no small influence on the application of legal science and the formation of the highest juridical disciplines. These decisions, like those of the Segnatura, form part of the *stylus et praxis Curiae Romanae* and are one of the criteria to be consulted in case of a lacuna in the law (CIC, can. 20; V. INTERPRETATION).

With the occupation of Rome by French troops in 1798, the Rota almost entirely ceased its activity. Upon the reorganization of the Papal State, the Rota resumed its activity after 1815; in 1816 Pius VII granted the province of Ravenna the privilege of having an auditor in place of Venice. By the Edict of 1821, commercial causes of the Papal State were assigned to the Rota on appeal. When, in 1847, the ecclesiastical and civil tribunals were merged, the Rota became an ordinary appellate tribunal for civil and ecclesiastical causes of the State of the Church, and the Segnatura was transformed into a kind of civil Cassation. The regulation of Gregory XVI in 1834 coordinated the activity of the two judicial organs in such a way that their existence automatically came to an end with the dissolution of the Papal State in 1870. Under Pope Pius X in 1908 the Rota (CIC, can. 1598–1691) and the Apostolic Segnatura were revived, for which the *Lex propria S. Romanae Rotae et Signaturae Apostolicae* was published. In 1910 the *Regulae servandae in iudiciis apud S. Romanae Rotae tribunal* were added. These documents were later completed and unified in 1934 by the *Normae S. Romanae Rotae tribunalis*, which still govern the activity of the sacred tribunal.

II. CONSTITUTION OF THE S. ROTA. — The Rota is composed of a number of prelates (v. UDITORE DI ROTA) not strictly defined in number. Each auditor may, with the consent of the College, choose two assistant legal researchers; the Dean may choose three. It does not appear that assistants are currently appointed.

Immediately below the auditors are the Promoter of Justice and the Defender of the Bond: their office, in case of necessity, may also be entrusted to more persons of equal or subordinate rank. Only priests who are doctors of both canon and civil law, of good repute and mature age, may be elected to these two offices. They are appointed by the Roman Pontiff upon the proposal of the College. Besides the permanent substitutes of the Defender of the Bond or the Promoter of Justice, other priests, appointed case by case, perform the delicate task of defending marriage or rights. There are also notaries, clerks, the archivist, the distributor, the accountant, and the curators. Advocates are not members of the tribunal but are independent professionals; their intervention, however, is most necessary, for no cause proceeds without at least one advocate, chosen by one or both parties or assigned ex officio in causes of free legal assistance or at least of reduced expenses. By right, ten *avvocati concorsionali* belong to the Rota; then follow the ten procurators of the Apostolic Palaces, and finally the entire body of Rotal advocates, who do not form a college and are unlimited in number (v. AVVOCATO). To become a Rotal advocate, in addition to obtaining a degree in canon law, it is necessary to attend the three-year course at the Rota’s study and pass an examination, which entitles one to the diploma. Advocates are required to have their domicile in Rome if they intend to practise before the S. Rota; they must account for the fees charged to their clients; accept causes of free legal assistance assigned to them by the Dean; and finally render account, before the S. Rota and the Cardinal Commission for oversight attached to the Apostolic Segnatura, of any failure or infraction of their duties.

III. JURISDICTION AND ACTIVITY OF THE S. ROTA. — At present, the Rota chiefly examines and decides causes of an ecclesiastical nature, particularly matrimonial causes. It also occasionally deals with criminal causes and those concerning Sacred Ordination. The Rota judges causes of legal separation and also of matrimonial dispensation when this matter is joined with that of nullity. Regarding sentences issued by inferior tribunals, the Rota may judge appeals on grounds of nullity, petitions for restitution in integrum, and recourse for a new examination after two conforming sentences in causes concerning personal status.

The S. Rota is by nature an appellate tribunal (can. 1598); it therefore receives, in second instance and necessarily, all causes arising from the tribunal of the Vicariate of Rome; it also receives, always in second instance, causes from other diocesan or regional tribunals of any province of the Holy Church (can. 1598 § 1). It shares this faculty with all local appellate tribunals. Finally, the Rota receives, in third and further instances, causes already tried by an appellate tribunal but not yet definitive.

The Rota is, however, also a tribunal of first instance for causes reserved to the Holy See (cf. can. 1557 § 2) and when the Roman Pontiff, either on his own initiative or at the request of the parties, assigns causes to be decided by the S. Rota from the first instance. Any further instances will naturally proceed before the same sacred tribunal, save the jurisdiction of the Apostolic Segnatura. Yet the so-called *causae maiores* (can. 1600) are absolutely excluded from its jurisdiction, being reserved personally to the Roman Pontiff (can. 1557 § 1).

BIBL.:
G. Catalano, *De Sacra Rota Romana*, Roma 1921;
A. Mercati, *I primissimi secoli della Sacra Rota*, in *Miscellanea Pio XI*, I, Città del Vaticano 1934;
F. Roberti, *De processibus*, Roma 1941;
G. Catalano, *La competenza della Sacra Rota*, in *Apollinaris*, 1942, pp. 3-34.

After the establishment of the State of the Vatican City, the Sacred Roman Rota serves as an appellate court. This jurisdiction is understood to be limited by the boundaries of the Vatican City (cf. Lex fundamentalis, in AAS, Suppl., 1929). An example of the Rota’s current grand activity can be drawn from the commentary (AAS 44 [1952], pp. 297–334), which reports the 1951 proceedings. The tribunal handled 244 cases; 189 of these reached judgment, consisting of 186 causes of nullity or dispensation, 2 causes iurium, and 2 of separation. Fifty-five cases remained suspended and were thus filed away, including 49 of nullity, 3 of separation, and cases concerning the most noble titles, damages, and alimony.

IV. PROCEDURE OF THE SACRED ROMAN ROTA

The Rota is a collegial tribunal (can. 1598). Each judging panel generally consists of three auditors; the senior among them serves as president, usually as the ponens, and possibly as the instructor of the case. If a case has been judged in a lower tribunal by more than three judges, the Rota is not obliged to increase the number of its auditors (can. 1596). In certain cases, the judging panel may consist of five, seven, or more auditors; it is not excluded that all members may participate (this is called videntibus omnibus): this occurs when a case is remitted to the Rota by the Apostolic Signatura following the granting of restitutio in integrum, or in cases where the Pope has so disposed. In such instances, no exception is made for auditors who may have previously dealt with the same matter, nor is any consideration given to whether the number of auditors is even or odd. Each panel constitutes a tribunal in itself and may be regarded as a section of equal rank and entirely equal to any other panel. When a case reaches the Chancery of the Rota, the Dean may assign it to any panel; in subsequent instances, the case automatically passes to the panel composed of the senior auditors. When the Dean, by special decree, assigns a case to a specific panel, he determines the president and the ponens; on occasion, however, one or two of the panel’s auditors may be replaced by others who follow in seniority, should illness or another just cause intervene. If the ponens, already designated, subsequently has just cause to resign, after consulting the other two auditors, the ponency may be entrusted to another. A case pending before the Sacred Rota is designated not so much by its protocol number as by the name of the diocese, the subject matter, the names of the parties, and the name of the ponens: coram, with the addition of the date of the judgment.

The Rotal fees vary according to the scope and gravity of the case; they are made known in a special table that lists the minimum and maximum fees that advocates may charge their clients. Gratuitous representation or at least a reduction of judicial expenses is not infrequently granted. The acts of the process are generally printed, at the expense of the interested parties, by the Vatican Press, though they remain strictly confidential. Advocates and the parties in a case may, whenever they wish, examine the procedural acts once the instruction—which is generally secret—has concluded. However, the Sacred Rota annually publishes in the AAS, albeit in a generic manner, a list of all the cases handled in the previous year, along with the dispositio, omitting the names of the parties and sometimes even the indication of the diocese, so as to prevent the disclosure of information that might harm the parties involved.

The secrecy and seriousness of the Rotal practice can also be inferred from the fact that, at the appointed time for the definitive judgment of a case, each auditor, after personally and separately studying the procedural acts, is required to submit his vote in writing. An oral discussion then takes place among the judges, and in cases of differing opinions, any judge may, if he deems it appropriate, adopt the opinion of another. The vote of each member of the panel is equal to that of the others and to that of the president or ponens. It may even happen that the ponens must subsequently draft a judgment with a conclusion contrary to his own view if the other two colleagues have held a different opinion. Finally, their votes are placed in an envelope and sealed; even the Dean is forbidden from examining them, and only the Roman Pontiff could order their consultation. Each year, all sealed envelopes containing the votes of cases older than ten years are destroyed by fire.

As a pontifical tribunal, the Sacred Rota serves as a guide for all other tribunals, whether diocesan or regional; its judgments and decisions are regularly published in special volumes, with the omission—as noted above—of the names of the parties. This typographical publication ordinarily occurs ten years after the notification of the judgment to the interested parties.

V. DUTIES AND PRIVILEGES OF THE PRELATE AUDITORS

Passing over what has now fallen into disuse, we limit ourselves to noting certain points from the constitution Ad incrementum of 15 August 1934, issued by Pius XI, with the intention of coordinating, according to the various degrees, the prelature of the Roman curia (v. PRELATI).

The auditors are domestic prelates and familiar prelates of the Roman Pontiff; they are exempt from the jurisdiction of the Orders. As apostolic subdeacons, they serve as ministers with various duties in the solemn functions of the Roman Pontiff. They assist in the blessing and imposition of the Pallia; and in the blessing of the Agnus Dei; the Dean in person is entrusted with the lambs whose wool is later used to make the Pallia. Two auditor prelates, for the second time, promulgate in Latin and Italian the bull of indiction for the Holy Year; three of the senior auditors are ex officio enrolled in the Sacred Congregation of Rites as Official Prelates. During a Conclave, the auditors guard the Rota reserved for the cardinals. In forensic ceremonies, they wear the toga over the cassock and carry the doctoral cap with a red tassel. They enjoy the right to pontificals, as do the Protonotaries Apostolic de numero.

II. METROPOLITAN AND DIOCESAN TRIBUNALS.

I. HISTORY

From the earliest times of the Church, the jurisdiction of first instance was ordinarily exercised by the bishop within the Christian communities, and already by the 3rd century there is evidence of frequent appeals from bishops to the Pope. With the cessation of persecutions, episcopal jurisdiction was recognized, with an inappellable character in civil causes, by imperial constitutions, provided the parties consented. After the Lombard invasion, which had diminished the civil prerogatives of episcopal tribunals, under the Carolingian Empire and subsequently, these tribunals regained authority in their relations with the State, but at the same time saw the rise and increasing affirmation of the contentious jurisdiction of deans and archdeacons in urban centers, with their own tribunals, from which appeals lay to the episcopal tribunal. With the Council of Trent, all inferior tribunals were abolished, and the cognizance of first instance for all causes pertaining in any way to ecclesiastical forum—even if they involved benefices—was returned to the local Ordinaries (sess. XXIV, cap. XX de reform.).

The competence of these tribunals is thus increasingly being defined and unified, and at the same time their functioning and organization are assuming an ever more distinct character from the administrative activity of the bishops themselves, with the distinction between judicial functions—entrusted, under the presidency of the tribunal, to the official—and administrative functions delegated to the vicar general (v. PRESIDENTE DEL TRIBUNALE).

The *Codex Iuris Canonici* (CIC) reaffirmed, in principle, this separation of offices (can. 1573 § 1) as the foundation for the constitution of episcopal tribunals. For this reason, while the principle that the bishop is, in his diocese, the natural judge of all controversies not reserved to the Holy See was reiterated (except where he is a party to the case, as in matters concerning the temporal goods of the episcopal see or the curia: can. 1572 § 2), bishops are advised to exercise judicial functions—especially in criminal or grave contentious matters—through the ordinary tribunal, presided over by the official or vice-official (can. 1578; V. also, for inquiries in criminal trials, can. 1940).

Regarding the subsequent degrees of the judicial hierarchy, since the Council of Trent established the rule that first-instance cases always fell under the competence of the episcopal tribunal, appeals against its sentences were brought before the metropolitan, patriarch, primate, or the Apostolic See.

After patriarchal and primatial dignities were reduced to purely honorary titles with no special jurisdiction (can. 271), the degrees of jurisdiction remained fixed at three instances: before the bishop, the metropolitan, and the Holy See.

Thus, in the system of the CIC (I. IV, part 1°), there are ordinary tribunals of first instance at the level of the bishop; ordinary tribunals of second instance at the level of the metropolitan; and pontifical tribunals (the Sacred Roman Rota, the Apostolic Signatura). To safeguard the right of the parties to a triple instance of jurisdiction, for cases tried in first instance before the metropolitan (which, of course, applies to subjects, entities, or persons belonging to his episcopal see), it is established that a tribunal of a local ordinary, designated once and for all, shall judge in second instance. A similar provision is made for archbishops without suffragans or for bishops immediately subject to the Holy See (can. 1594).

II. ORGANIZATION AND FUNCTIONING

The constitution of ordinary tribunals, which is identical for first and second instance, as are the rules for the handling of cases before them (can. 1595), may be either single-judge or collegial, depending on the subject matter or circumstances.

The single judge—whether the bishop himself or, in cases he does not reserve to himself, the official or vice-official (v. PRESIDENTE DEL TRIBUNALE)—must, however, always be assisted in any trial by two consultative assessors chosen from among the synodal judges. These are priests of exemplary life and expert in canon law, appointed in the synod and by the bishop between synods, with delegated authority.

The collegial tribunal consists of the official or vice-official as president and two to four other judges, designated by the ordinary in rotation from among the synodal judges. The tribunal must consist of three members in contentious cases concerning the bond of sacred ordination, marriage, or the temporal rights and goods of the cathedral church; likewise in criminal cases that may entail the deprivation of an irremovable benefice or the imposition or declaration of a penalty. Cases involving delicts that entail the penalty of deposition, perpetual deprivation of the ecclesiastical habit, or degradation are reserved to a tribunal of five judges. Moreover, the ordinary may entrust the adjudication of other cases to a collegial tribunal of three or five judges, and is advised to do so especially when the circumstances of time, place, and persons, as well as the nature of the case, suggest greater difficulty or importance (can. 1577 § 2).

Sentences of the collegial tribunal are rendered by majority vote; the direction of the process is the responsibility of the president.

The same rules apply to both degrees of jurisdiction, but if a case was heard collegially in first instance, it must be so in appeal, and with no fewer judges.

In addition to the judges, the staff of the tribunal includes other officials whose presence is necessary for all acts of the tribunal or is required only for certain trials and under specific circumstances. Of the first kind is the notary (v.) or actuary, who must be present at every proceeding and by whom all acts must be drawn up or at least signed, under penalty of nullity. This official corresponds to the chancellors of the secular courts; he is designated by the judge before the commencement of the case. Other auxiliary organs are the messengers (*cursores*), for notifications, and the apparitors, for executions, whose functions may be performed by the same person. Their acts are presumed authentic. Messengers and apparitors are ordinarily laymen; the notary is normally a priest and must always be one in criminal cases involving clerics.

Judicial officials who do not necessarily intervene in all cases but only in certain ones are the promoter of justice (v.) and the defender of the bond (v.), who represent the public interest in the tribunal and aim to ensure the proper administration of justice.

The promoter of justice intervenes in criminal cases, in which he alone is competent to exercise the criminal action or accusation; he also intervenes in contentious cases when, in the judgment of the ordinary, the public good is at stake, and he may take the initiative, in conjunction with the interested parties or in their stead if they lack standing, to promote causes of nullity of marriage (can. 1586, 1934, 1971). The defender of the bond is obligatorily involved in cases concerning marriage and sacred ordination, with the task of defending the related bond. Both are appointed by the ordinary, are removable by the bishop for just cause, and must be reconfirmed upon the change of bishop.

The parties to a case may be represented in court by a procurator and defended by an advocate, whose functions may, however, be exercised by the same person, provided they meet the required qualifications and are duly authorized by the competent ecclesiastical authority. Their appointment is not obligatory, except where prescribed by law or ordered by the judge.

The poor are granted free legal assistance (v.), either total or partial (can. 1914), with the judge designating a public defender.

III.

I. TRIBUNALS FOR MATRIMONIAL CASES IN ITALY

The organization of the tribunals outlined above applies generally to the Church. In Italy, however, due to the serious practical problems arising from the application of the Lateran Treaty of 11 February 1929—which recognized civil effects for canonical marriages and the related nullity decrees issued by ecclesiastical tribunals—it was deemed advisable to reorganize the tribunals of first and second instance for such cases. Therefore, with the *motu proprio* *Qua cura* of 8 December 1938, Pius XI decreed that each regional ecclesiastical region in Italy should have a single tribunal tasked with adjudicating nullity-of-marriage cases from all the dioceses in the region. Appeals from the decisions of each regional tribunal were to be heard by another specifically designated tribunal, according to the following arrangement:

IV. TRIBUNALS FOR RELIGIOUS AND DELEGATED TRIBUNALS

In addition to the ordinary tribunals of first and second instance of the bishop and the metropolitan, for subjects under their jurisdiction, canon law provides— for religious who are exempt from this jurisdiction— special tribunals established within the individual religious orders. On this matter, the CIC (can. 1579, 1594 § 4) stipulates that in disputes between exempt religious of the same clerical religious institute, unless the constitutions provide otherwise, the judge of first instance shall be the provincial superior or, if it concerns a monastery *sui iuris*, the local abbot. If the dispute involves two religious provinces, the judge is the superior general (supreme moderator) of the institute, or, if it concerns two monasteries, of the monastic congregation.

However, if the dispute arises between individuals or moral persons of different religious orders, or between members of the same non-exempt or lay religious institute, or between a religious and a secular cleric or a lay person, the competent judge of first instance is always the local diocesan tribunal.

In second instance, cases tried before the provincial superior are brought before the tribunal of the superior general; those tried before the local abbot, to the tribunal of the supreme moderator of the monastic congregation; and those judged by the episcopal tribunal, to the ordinary tribunal of second instance according to common rules (can. 1594 §§ 1, 2, 3).

To the tribunals thus far considered, and to those others at the Holy See, whether ordinary or special, which are discussed elsewhere, one may add the category of delegated tribunals. These may be established for just reasons by the Pope, and, in exceptional cases, by bishops, abbots, and prelates *nullius*, as well as by vicars and apostolic prefects. The delegation must be in writing and generally expires with the conclusion of the trial. The delegated judge of the Holy See may avail himself of the personnel of the diocesan curia in which he is to judge, as well as any other person he prefers.

Delegated judges appointed by Ordinaries must avail themselves of the personnel of the diocesan curia, unless the bishop, in some particular case, has decided that recourse should be had to others (can. 1606-1607).