If the appellant does not pursue the matter, a reasonable delay, ordinarily of twenty days, is accorded, after which he is judged to have renounced his appeal and the sentence is executed. If he does pursue it, he makes choice of an advocate at Rome. The budget is then sent to a judge-reporter, from whose hands the advocate receives a memorandum of the case, and upon that bases his defence. This defence is communicated to the first judge, that he may sustain his sentence. All the papers are printed and distributed to the cardinals. The cause is examined on an appointed day in presence of the assembled congregation. The judge-reporter states the case. The proctor-general defends the sentence of the court below. The cardinals render their decision, which affirms, vacates, or revises the sentence of the diocesan tribunal, and is immediately transmitted thereto for execution. This decision is final; and, after it is rendered, the pope alone can grant a review of the proceedings, and that only before the same congregation, and for the gravest reasons.
It will be remarked that there is no public hearing of witnesses; but if this should seem objectionable to any, it will be sufficient to remind them that civil courts, which revise the judgments of courts of correction, decide upon the papers of the case and not upon the testimony of living witnesses at their bar; while, as for criminal proceedings, it is well known that from the courts which try issues of fact there is usually no appeal.
When, instead of an ordinary offence, the crime alleged is one against the faith, the rules of procedure are inquisitorial in their character, and differ somewhat from the preceding; but on account of the weight of the penalty, they offer still greater safeguards to the accused.
Moreover, it is not requisite that all the witnesses should have been present during the whole transaction in question; the deposition of a single one is admissible, though it is necessary that there be more than two, and even three form but a sort of half-proof. All interrogatories, skilfully directed to extort the truth from the defendant or the witnesses by surprise, are strictly forbidden, as are also any suggestions of the answer desired, and every effort is made that the truth may flow naturally from the lips of the witness and without the influence of fear. In order to avoid hatred and terrorism, the names of the witnesses are not made known to the accused, but their motives of hostility to him are examined with the greatest care. False witnesses are punished with the utmost severity, and, when it becomes necessary, the accused and accusers are confronted with each other.
If from poverty, or any other reason, the accused is found without an advocate or proctor, one is furnished for him.
Finally, the appeal is a matter of right. It is taken directly to Rome, before the Congregation of the Holy Office, without passing through any intermediate metropolitan tribunal, and, during its pendency there, execution is usually stayed. Judgment is never rendered against any one upon mere presumptions; but only after full and unmistakable proof.
We come now to notice the written regulations which may be called the skeleton of procedure. Save some variations in detail, they differ little from those of all contested cases before the different congregations. But in order fully to understand their advantages and disadvantages, the reader should understand not only the text of the law but the usages of its practices. For everywhere, at Rome as at Paris, unwritten traditions and judicial customs modify and temper the law, complete its deficiencies, and cause the inconveniences which, at first sight, it would seem to occasion, wholly to disappear. It is also impossible to base a serious comparison between the procedure of two countries upon a mere reading of their rules. Not only ought the two methods to vary according to the manners of the parties, the character of the tribunals, and the nature of their causes, but even two modes which are identical will often, under different circumstances, produce entirely different results. They accommodate themselves to the hand that wields them, and their value can be really appreciated only after long usage of them; so that the skilled practitioner alone is able to speak authoritatively of their value, of their endurance, and of the guarantees which they offer for the discovery of truth.
By these remarks we desire to show that the procedure of the Roman congregations, without sacrificing any of the essential safeguards of justice, is generally simple, brief, economical, informal to a degree beyond that of any civil procedure; and, far from needing to learn any thing from them, it is able in many points to become their instructor.
There is, however, one great difference upon which we especially insist, because it has formed the pretext for unjust attacks from narrow minds, who are unable to comprehend that any thing can be well done that is done in a way different from their own, or that any difference between their customs and those of others is not a signal mark of the inferiority of the latter. The Roman congregations admit of no oral pleadings.[36] All discussion is in writing, though it is necessarily completed by the verbal explanations which the advocates give to the judges; but there is no public and passionate debate, such as is common in all civil jurisdictions. We do not believe that the absence of this is any evil. The Roman legislative body has always endeavored to shun surprises in its hearings. Pleading, as it is practised among us, is nothing but the conflict of two opposing debaters, often unequally matched, and of whom the more powerful is seldom on the side of the oppressed. We believe, indeed, that the doors of the influential advocate, whose name and authority are themselves a powerful argument, are rarely closed against the poor who seek to enter them; but the poor do not always dare to stop and knock, and so content themselves with men of more ordinary abilities. If, then, one of these contesting advocates is more skilful than the other; if he knows how to win favor for his client by an insinuating speech and to cast ridicule upon his adversary; if he has the faculty of grouping figures, of coloring facts, of flattering his auditors during the progress of the controversy; if he is passionate and violent, his emotion will affect the judge, whose heart beats under his robe and is not, perhaps, to any extraordinary degree unimpressible; all these circumstances, extrinsic to the real merits of the cause, will exercise great influence upon its determination, and may be able to wring from the tribunal a decision which, in moments of reflection and coolness, it would never render.
Oral pleading resembles, to some extent, those ancient judicial combats upon which the issue of causes was sometimes made to depend. It is a duel of words, in which justice does not always have the advantage. Our imagination represents an advocate as one whose work it is to wrest the innocent from the clutches of powerful and cruel persecutors; who summons eloquence to aid him in resisting the fierce passions which menace the welfare of his client. This was well enough for those primitive ages when a legal process was the outburst of violent wrath, which dragged the alleged offender before a single judge, or perhaps before a mob erected into a tribunal and swayed by passion. But this conception is not correct for our day, even in criminal matters, where the public prosecutor, as far as possible, excludes mere feeling and makes his appeal to calm and solid reason alone; and it is especially false in civil causes, in which the advocate interprets the text of the law, discusses contracts, examines and compares evidence, all of which labors are difficult, and demand, above all things, reflection, good sense, and coolness.