But if the Judge perceives that the accused is determined to have recourse to an appeal, he must first take note that such appeals are sometimes valid and legitimate, and sometimes entirely frivolous. Now it has already been explained that cases concerning the Faith are to be conducted in a simple and summary fashion, and therefore that no appeal is admitted in such cases. Nevertheless it sometimes happens that Judges, on account of the difficulty of the case, gladly prorogue and delay it; therefore they may consider that it would be just to allow an appeal when the accused feels that the Judge has really and actually acted towards him in a manner contrary to the law and justice; as that he has refused to allow him to defend himself, or that he has proceeded to a sentence against the accused on his own responsibility and without the counsel of others, or even without consent of the Bishop or his Vicar, when he might have taken into consideration much further evidence both for and against. For such reasons an appeal may be allowed, but not otherwise.
Secondly, it is to be noted that, when notice of appeal has been given, the Judge should, without perturbation or disturbance, ask for a copy of the appeal, giving his promise that the matter shall not be delayed. And when the accused has given him a copy of the appeal, the Judge shall notify him that he has yet two days before he need answer it, and after those two days thirty more before he need prepare the apostils of the case. And although he may give his answer at once, and at once proceed to issue his apostils if he is very expert and experienced, yet it is better to act with caution, and fix a term of ten or twenty or twenty-five days, reserving to himself the right to prorogue the hearing of the appeal up to the legal limit of time.
Thirdly, let the Judge take care that during the legal and appointed interval he must diligently examine and discuss the causes of the appeal and the alleged grounds of objection. And if after having taken good counsel he sees that he has unduly and unjustly proceeded against the accused, by refusing him permission to defend himself, or by exposing him to questions at an unsuitable time, or for any such reason; when the appointed time comes let him correct his mistake, carrying the process back to the point and stage where it was when the accused asked to be defended, or when he put a term to his examination, etc., and so remove the objection; and then let him proceed as we have said. For by the removal of the grounds for objection the appeal, which was legitimate, loses its weight.
But here the circumspect and provident Judge will carefully take note that some grounds of objection or reparable; and they are such as we have just spoken of, and are to be dealt with in the above manner. But others are irreparable: as when the accused has actually and in fact been questioned, but has afterwards escaped and lodged an appeal; or that some box or vessel or such instruments as witches use has been seized and burned; or some other such irreparable and irrevocable action has been committed. In such a case the above procedure would not hold good, namely, taking the process back to the point where the objection arose.
Fourthly, the Judge must note that, although thirty days may elapse between his receiving the appeal and his completing the apostils of the case, and he can assign to the petitioner the last day, that is, the thirtieth, for the hearing of his appeal; yet, that it may not seem that the wishes to molest the accused or some under suspicion of unduly harsh treatment of him, and that his behaviour may not seem to lend support to the objection which has caused the appeal, it is better that he should assign some day within the legal limit, such as the tenth or twentieth day, and he can afterwards, if he does not wish to be in a hurry, postpone it until the last legal day, saying that he is busy with other affairs.
Fifthly, the Judge must take care that, when he affixes a term for the accused who is appealing and petitioning for apostils, he must provide not only for the giving, but both for the giving and receiving of apostils. For if he provided only for the giving of them, then the Judge against whom the appeal is lodged would have to discharge the appellant. Therefore let him assign to him a term, that is, such a day of such a year, for the giving and receiving from the Judge such apostils as he shall have decided to submit.
Sixthly, he must take care that, in assigning this term, he shall not in his answer say that he will give either negative or affirmative apostils; but that he may have opportunity for fuller reflection, let him say that he will give such as he shall at the appointed time have decided upon.
Let him also take care that in assigning this term to the appellant he give the appellant no opportunity to exercise any malicious precautions or cunning, and that he specify the place, day and hour. For example, let him assign the twentieth day of August, in the present year, at the hour of vespers, and the chamber of the Judge himself in such a house, in such a city, for the giving and receiving of apostils such as shall have been decided upon for such appellant.
Seventhly, let him note that, if he has decided in his mind that the charge against the accused justly requires that he should be detained, in assigning the term he must set it down that he assigns that term for the giving or receiving of apostils by the appellant in person, and that he assigns to the said appellant such a place for giving to him and receiving from him apostils; and then it will be fully in the power of the Judge to detain the appellant, granted that he has first given negative apostils; but otherwise it will not be so.
Eighthly, let the Judge take care not to take any further action in respect of the appellant, such as arresting him, or questioning him, or liberating him from prison, from the time when the appeal is presented to him up to the time when he has returned negative apostils.
To sum up. Note that it often happens that, when the accused is in doubt as to what sort of sentence he will receive, since he is conscious of his guilt, he frequently takes refuge in an appeal, that so he may escape the Judge's sentence. Therefore he appeals from that Judge, advancing some frivolous reason, as that the Judge held him in custody without allowing him the customary surety; or in some such way he may colour his frivolous appeal. In this case the Judge shall ask for a copy of the appeal; and having received it he shall either at once or after two days give his answer and assign to the appellant for the giving and receiving of such apostils as shall have been decided upon a certain day, hour, and place, within the legal limit, as, for instance, the 25th, 26th or 30th day of such a month. And during the assigned interval the Judge shall diligently examine the copy of the appeal, and the reasons or objections upon which it is based, and shall consult with learned lawyers whether he shall submit negative apostils, that is, negative answers, and thereby disallow the appeal, or whether he shall allow the appeal and submit affirmative and fitting apostils to the Judge to whom the appeal is made.
But if he sees that the reasons for the appeal are frivolous and worthless, and that the appellant only wishes to escape or to postpone his sentence, let his apostils be negative and refutatory. If, however, he sees that the objections are true and just, and not irreparable; or if he is in doubt whether the accused is maliciously causing him trouble, and wishes to clear himself of all suspicion, let him grant the appellant affirmative and fitting apostils. And when the appointed time for the appellant has arrived, if the Judge has not prepared his apostils or answers, or in some other way is not ready, the appellant can at once demand that his appeal be heard, and may continue to do so on each successive day up to the thirtieth, which is the last day legally allowed for the submission of the apostils.
But if he has prepared them and is ready, he can at once give his apostils to the appellant. If, then, he has decided to give negative or refutatory apostils, he shall, at the expiration of the appointed time, submit them in the following manner:
AND the said Judge, answering to the said appeal, if it may be called an appeal, says that he, the Judge, has proceeded and did intend to proceed in accordance with the Canonical decrees and the Imperial statutes and laws, and has not departed from the path of either law nor intended so to depart, and has in no way acted or intended to act unjustly towards the appellant, as is manifest from an examination of the alleged grounds for this appeal. For he has not acted unjustly towards him by detaining him and keeping him in custody; for he was accused of such heresy, and there was such evidence against him that he was worthily convicted of heresy, or was strongly suspected, and as such it was and is just that he should be kept in custody: neither has he acted unjustly by refusing him sureties; for the crime of heresy is one of the more serious crimes, and the appellant had been convicted but persisted in denying the charge, and therefore not even the very best sureties were admissable, but he is and was to be detained in prison. And so he shall proceed with the other objections.
Having done this, let him say as follows: Wherefore it is apparant that the Judge has duly and justly proceeded, and has not deviated from the path of justice, and has in no way unduly molested the appellant; but the appellant, advancing pretended and false objections, has by an undue and unjust appeal attempted to escape his sentence. Wherefore his appeal is frivolous and worthless, having no foundation, and erring in matter and form. And since the laws do not recognize frivolous appeals, nor are they to be recognized by the Judge, therefore the Judge has himself said that he does not admit and does not intend to admit the said appeal, nor does he recognize nor yet propose to recognize it. And he gives this answer to the said accused who make this undue appeal in the form of negative apostils, and commands that they be given to him immediately after the said appeal. And so he shall give it to the Notary who has presented the appeal to him.
And when these negative apostils have been given to the appellant, the Judge shall at once proceed with his duty, ordering the accused to be seized and detained, or assigning to him a day to appear before him, as shall seem best to him. For he does not cease to be the Judge, but shall continue his process against the appellant until the Judge to whom the appeal was made shall order him to cease.
But let the Judge take care not to commence any new proceedings against the appellant, by arresting him or, if he is in custody, liberating him from prison, from the time of the presentation of the appeal up to the time of the return of negative apostils to him. But after that time, as we have said, he can do so if justice requires it, until he is prevented by the Judge to whom the appeal has been made. Then, with the process sealed under cover, and with a sure and safe escort and if necessary a suitable surety, let him send him to the said Judge.
But if the Judge has decided to return affirmative and fitting apostils, let him submit them in writing in the following manner on the arrival of the day appointed for the giving and receiving of apostils:
AND the said Judge, answering to the said appeal, if it may be called an appeal, if it may be called an appeal, says that he has proceeded in the present cause justly and as he ought and not otherwise, nor has he molested or intended to molest the appellant, as is apparent from a perusal of the alleged objections. For he has not molested him by, etc. (Here he shall answer to each of the objections in the appeal, in the best and most truthful manner that he can.)
Wherefore it is apparent that the said Judge has in no way dealt unjustly by the appellant nor given him cause to appeal, but that the appellant is afraid lest justice should proceed against him according to his crimes. And therefore the appeal is frivolous and worthless, having no foundation, and not being admissable by the laws or the Judge. But in reverence for the Apostolic See, to which the appeal is made, the said Judge says that he admits the appeal an intends to recognize it, deferring the whole matter to out Most Holy Lord the Pope, and leaving it to the Holy Apostolic See: assigning to the said appellant a certain time, namely, so many months now following, within which, with the process sealed under cover given to him by the said Judge, or having given suitable sureties to present himself at the Court of Rome, or under a sure and safe escort appointed to him by the said Judge, he must present himself in the Court of Rome before our Lord the Pope. And this answer the said Judge gives tot he said appellant as affirmative apostils, and orders that it be given to him immediately after the appeal presented to him. And so he shall hand it to the Notary who has presented the appeal to him.
The prudent Judge must here take note that, as soon as he has given these fitting apostils to the appellant, he at once ceases to be the Judge in that cause from which the appeal was made, and can proceed no further in it, unless it be referred back to him by our Most Holy Lord the Pope. Therefore let him have no more to do with that case, except to send the said appellant in the above manner to out Lord the Pope, assign to him a convenient time, say one, two or three months, within which he must prepare and make himself ready to appear and present himself at the Court of Rome, giving a suitable surety; or, if he cannot do this, let him be sent under a sure and safe escort. For he must either bind himself by the best means in his power to present himself within the assigned time before our Lord the Pope in the Court of Rome, or his appeal must necessarily fall to the ground.
But if the Judge has another case, and proceeds against the accused in another case in which he has not lodged any appeal: in that other case he remains, as before, Judge. And even if, after the appeal has been admitted, and the affirmative apostils have been given, the appellant is accused and denounced to the Judge in respect of other heresies which were not in question in the case from which he appealed, he does not cease to be the Judge, and can proceed with the inquiry and the examination of witnesses as before. And when the first case has been finished in the Court of Rome, or after reference back to the Judge, he is free to proceed with the second.
Let Judges also take care that they send the process to the Court of Rome, sealed and under cover, to the Judges appointed to execute justice, together with a digest of the merits of the process. And Inquisitors should not concern themselves to appear at Rome against the appellants; but should leave them to their own Judges, who, if the Inquisitors are unwilling to appear against the appellants, shall provide their own advocates for the appellant, if they wish to expedite the case.
Let Judges also take note that, if they are personally summoned by the appellant, and appear, they must beware at all costs against engaging in litigation, but must leave the whole process and cause to those Judges, and so manage that they may be able to return as soon as possible; so that they may not be sorely troubled with fatigues, misery, labour, and expense in Rome. For by this means much damage is caused to the Church, and heretics are greatly encouraged; and thereafter Judges will not receive so much respect and reverence, not will they be so much feared as before. Also other heretics, seeing the Judges fatigued and detained in the Court of Rome, will exalt their horns, and despise and malign them, and more boldly proclaim their heresies; and when they are accused, they will appeal in the same way. Other Judges, also, will have their authority weakened when they proceed on behalf of the Faith and are zealous in extirpating heretics, since they will fear lest they may be troubled with miseries and fatigues arising from similar appeals. All this is most prejudicial to the Faith of the Holy Church of God; wherefore may the Spouse of that Church in mercy preserve her from all such injuries.
Part III, Question XXXV
was transcribed by Christie Rice.
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