Historical Perspective

Chapter 1: Historical Perspective

(Extracts of the book Administrative Justice in the Catholic church, by Yves Alain Ducass, Paris 2018, 374 p).

In any innovative process a historical approach is necessary, as our African friends will tell us: « If you do not know where you are going, look at where you come from, » or as Mgr. Jean-Louis Bruguès explains it, « The memory allows access to the identity and to trust[1].  » Similarly, the Prefect of the Vatican’s Secretariat for Communication says:

We must have very much at heart the history, memory, the future, » and accept « being reborn a second time. Rebirth from on high, to see in God’s way the events of the world[2].

This first chapter provides a historical overview of the justice of the Church since the origin of Christianity until August 15, 1967, when Blessed Pope Paul VI promulgated the Apostolic Constitution Regimini Ecclesiae Universae, reorganizing the Roman Curia and giving jurisdiction to the Supreme Tribunal of the Apostolic Signatura in contentious-administrative matters.

  1. Overview of the Legacy of Historical Evolution[3]

To speak of administrative justice in the Church as it has worked for half a century does not necessarily imply a historical study, if only because this « Administrative justice » was not a reality organized as such over the course of time. It seems necessary to us, however, in order to grasp the present situation, to refer briefly to a few features of what was the history of ecclesiastical justice during the course of the history of the Church.

Certainly, the New Testament did not foresee ecclesiastical justice, but it made some proposals in this sense: Saint Matthew (18, 15-20) encouraged the Christian to correct his brother with charity; Saint Paul (I Cor. 6, 1-8) asked Christians not to resort to the courts of the Gentiles, but to resolve difficulties among themselves. Such are the bases of « fraternal correction, » the importance of which Pope Francis regularly reminded us, in stating that it is an action to heal the body of the Church[4].

From the beginning, disputes erupted and the existence of justice seemed necessary. Up to the end of the 3rd century, the Church was either ignored or persecuted by the Roman imperial power; in this context, it nevertheless organized and put into place an ecclesiastical system of justice; the latter operated essentially in the hands of the bishop even though, at times, the dispute was brought before a meeting of bishops, one of the functions of the first local councils being to resolve disputes. It is interesting to note these two modalities of action (it would no doubt be abusive to qualify them as « procedure » in the legal sense of the term): either intervention of the bishop with « monarchical” authority, or the decision of an assembly of bishops with « collegial” authority. The alternation between the two mechanisms of authority will be reflected throughout the history of the Church.

In the 3rd century, Christianity was first tolerated, then recognized (Edict of Milan in 313, under Constantine), and finally declared to be the only religion of the Roman Empire (Edict of Thessaloniki in 380, under Theodosius I) [5]. The relations between the new religion and the political power then took on characters they will never have again in future: a mutual support in a serenity that was almost absolute. The Church had the Gospel message, but had to build its structures of authority and laws.  It found in the empire a government, an administration, judicial bodies and laws surprisingly well constructed and refined. Accordingly, it borrowed from the Empire everything that could be useful to its organization, as long as this did not upset the message of the Gospel, which naturally remained its higher law. In this context, ecclesiastical justice flourished, in perfect collaboration between the two powers. Imperial legislation regulated the audientia episcopalis, the Tribunal of the bishop: Christians submitted their disputes to the bishop; the secular judges had the obligation to recognize episcopal sentences and to ensure their implementation. The audientia episcopalis took place within the whole of the procedural system of the Christian empire. The imperial constitutions significantly enhanced the development of its jurisdiction, ratione materiae and ratione personae, to such a point that Augustine came to deplore the time spent in judging, to the detriment of the exercise of his pastoral care. In addition, now, the growth of Christianity allowed everyone to go to a secular judge who might also be a Christian. It would be vain to seek, in the Roman Empire, the origins of an ecclesiastical justice specialized in administrative cases. Regarding this period, let us remember this almost perfect agreement between the two powers, in particular with regard to the organization of the judiciary; total confidence granted to the bishops by the Emperor; constant recourse by the Church to secular legislation which it could not do any better. Perhaps the Church lived through the only period of its history when relations between the two powers cannot be analyzed in terms of rivalry and superiority of one over the other.

From the fall of the Roman Empire of the West (476), the East and the West had clearly distinct developments, and we will limit our remarks to the West, where Pontifical primacy was affirmed. During the Middle Ages, ecclesiastical justice took on considerable importance. Society was Christian; ecclesiastical justice seemed organized and effective, compared to the secular courts (essentially composed of noblemen) which often operated poorly because less competent judges largely handled the procedures.

Gradually, secular powers tried to strengthen the authority of their own officers and their own courts. This was the royal policy in France, in particular, dating from the reign of Saint Louis IX. Nevertheless, the cases considered by the Church remained numerous ratione personae, the Church and the clerics defended the privilege of the forum allowing clerics (and to other categories protected by the Church) to be judged only by ecclesiastical justice; in the same movement, clerics and canonists agreed to combat secular courts that were tending to reduce their competence ratione materiae. The 12th and 13th centuries saw the climax of classic canon law, corresponding to all-powerful officials, resolving controversies in accord with skillful Roman-canonical procedures.

At the same time, pontifical authority evolved from the notion of pontifical primacy to plenitudo potestatis. This development had consequences for the organization of justice in the Church. The doctrine of pontifical primacy was developed as early as the end of the 4th century, and undoubtedly reached its peak in the Gregorian reform. It is expressed in particular by the Dictatus Papae, a collection dating from 1075. This law implied recognition of the supreme authority of the Roman Pontiff in the Church, and therefore of clerics as a whole, of discipline and of ecclesiastical structures. The doctrine of the plenitudo potestatis accompanied the affirmation of pontifical theocracy, which reached its climax in the 13th century; it proclaimed the omnipotence of the Pope, in the temporal realm as well as the spiritual; Rome tended to exert the Dominium Mundi. Therefore, the Pope had to develop organs of government of this “world.” The pontifical chancellery expanded and gave birth to structured Roman courts: the Tribunal of the Penitentiary for the internal forum, and that of the Rota for the external. Theoretically, these bodies remained under the immediate authority of the Pope and if they judged in the name of the Pope, but in practice, the question of the degree of independence of these Tribunals arose, a question that would remain constant in following centuries: was pontifical justice, rendered by judges delegated to act on behalf of the Pope in the Roman Tribunals, always in conformity with the decision of the Pontiff himself? Legally, this question is essential; practically, it is equally fundamental to the litigant.

The trend toward Roman centralization was therefore established, and would not cease to grow: local courts dealt with most of the litigation and the pontifical Tribunals decided the rest, sometimes in first instance but more often on appeal. The pattern remained. Next to the Penitentiary and the Rota, the Apostolic Signatura was gradually put in place. The Pope signed petitions, then entrusted this task to his chancellor or vice-chancellor, while reserving the possibility to intervene personally in various cases. In the second half of the 15th century, the papal Signatura was distinguished from the communal Signatura, the embryo of an Apostolic Signatura which would evolve still more in this general process of Roman centralization.

We need not dwell here on the various crises that crossed the Church and which, at times, called into question this pontifical centralization (in particular the Great Schism of the West, and the conciliar crisis).

In this historical schema sketched with very broad strokes, administrative justice does not seem to have had, over the centuries, any specific character: there were no specific courts that followed a specific procedure for certain categories of disputes.

In order to complete this historical perspective, during these same centuries, one can ask a question: did the secular court system include administrative justice? Historians of the law debate this. From the medieval era, a litigant could complain to a court about an act of public power, committed more often by a lord during the feudal era. Jean-Louis Mestre inferred that there was administrative justice. However, François Burdeau supports the opposite thesis, considering that there was no « administrative justice » since there did not exist two distinct orders of courts; this distinction between civil jurisdiction and administrative jurisdiction was not conceivable in the old France which contemplated no separation of powers. No doubt these two theses do not totally contradict each other, but can be partially reconciled; however, analysis of this secular judicial order is not our primary aim.

On one point, perhaps, we can see a relative similarity, in history, between the ecclesiastical system and the secular system. In both cases, acts of an administrative nature could be the subject of recourse: judicial recourse, extra-judicial, perhaps extraordinary recourse. It matters very little. In this study, we will only take into consideration that the Church for its part, and the secular powers for their part, admitted to examine an administrative act, and they did this at least since the medieval era. In an organization which was not an « administrative power,” separate from other authorities, there could hardly be question of entrusting the consideration of these acts to a specific authority, which had competence to rule on administrative disputes.

As regards the State in France, specific instances were gradually being in place at the beginning of the 19th century (Council of Prefects and Council of State); little by little they acquired independence in relation to the executive power and the Government (1871).

What was in it for the Church? The Apostolic Signatura saw several reforms during the course of its history. Two are fundamental: that made by Sixtus V in 1588, in the Constitution Immensa Aeterni, then that of Pius X in 1908 by the Constitution Sapienti Consilio. Neither one created an administrative tribunal. In 1908, the Church and the Government of the Roman Curia were characterized by the doctrine of a “Perfect Society”; one of the key points of this theory was to emphasize that the Church has all the attributes of a State and a state government. The drafters of the 1917 Code built their system on the basis of the Societas Perfecta. However, they did not establish an administrative court, like the States had. We can detect, in the 1917 Code, a draft of the organization of such a jurisdiction, which was not yet a reality[6]. This had to wait for 1967, when Blessed Paul VI created a Tribunal, or more exactly a section inside the Tribunal which is the Apostolic Signatura, that is responsible for settling dispute arising from the exercise of administrative power in the Church.

In 2017, the Church therefore celebrates the Golden Jubilee of the Tribunal!

  1. Some Notable Examples

In order to be more concrete, we will illustrate the above comments with a few examples of what we today call administrative justice, focusing in particular on episodes that have marked the collective memory.

2.1. Justice from the Early Ages

In the early years of the Church, many New Testament texts evoke a situation where religious authority adopts or intends to adopt a decision that is questionable, even unfair, and another religious authority wants to rectify it. Here is an example:

John said to him, « Teacher, we saw someone driving out demons in Your name, and we tried to prevent him because he does not follow us. » Jesus replied, « Do not prevent him. There is no one who performs a mighty deed in My Name who can at the same time speak ill of Me[7] .

At that time, there were already controversies and also divisions[8] that the first Christian communities were seeking to resolve among themselves. Similarly, a widow who is aggrieved by a deacon may ask to be heard by a priest, a bishop or an apostle[9]. Ecclesiastical justice resolved tensions within the Church, as was illustrated by Eusebius[10], Kevin Matthews[11] or Charles-Henri Hefele:

If a priest has a conflict with his own bishop or with another bishop, he must bring the dispute before the Synod of the Eparchy (province). If, however, a bishop or a cleric is in conflict with the Metropolitan of the province itself, he must choose either the exarch of the diocese or the See of Constantinople, and bring the case before him[12].

The result was intense ecclesiastical legal activity, to the point that:

Some bishops, including Saint Augustine, complained that they were overworked with hearing trials, which diverted from their true mission[13].

Let us reflect on one of his sermons about justice:

The tares are everywhere. Where did the enemy not sow the tares? […] Did he sow them among the laity, but not among clerics and bishops? […] Sometimes also human judgment thinks that such is wheat, but they are the tares; and we think that such are the tares, but in reality, they are wheat. […] Because of this hidden destiny, the Apostle says: « Do not judge before the time until the Lord comes, and He will illuminate the secrets of darkness and manifest the thoughts of hearts; then each will receive praise from God » (1 Cor. 4, 5-6), the praise of man passes away; often a man praises what is evil, and he does not know; sometimes a man accuses a saint, and he does not know. May God forgive the one who does not know, and may He come to the aid of the one who suffers[14].

2.2. The Inquisition

With the approach of the year 1000, and the 11th century, heresy constituted a serious threat that it was necessary to eliminate with the Sign of the Cross and, if necessary, by fire and sword[15]. Pyres appeared in 1022 in Orleans, at the instigation of King Robert II:

King Robert had more than fourteen people burned, including the best clerics and the most prominent lay people of the city[16].
It appears that it involved a matter of innovation, before the decision of the sovereign had been legitimized by the consent of five bishops and important lay people who were present[17]

Some clerics tried to temper the severity of secular power and popular revenge.

  • This verdict, which was severe and seems to be incredible[18], provoked in any case mixed reactions in church circles[19].
  • In some cases, there were also seen some prelates who were very firmly opposed to the use of violence against the heretics.
  • Wazon of Liege condemned the praecipitam Francorum rabiem, which in many cases had led to the massacre of suspects without them even having been judged[20].
  • In 1135, Bishop Albéron II of Liege and his clergy opposed with some success the massacre of the first Cathars arrested in the diocese, and managed to snatch most of them out of the hands of an enraged populace[21].

Rome also played a growing role as judicial arbiter in matters of ecclesiastical discipline[22]:

After the victory of the Gregorian reform and the end of the schism of 1130[23], the Roman Church had become a true High Court of Justice, to which flowed more and more frequently appeals of all kinds. […] Although the initiative never actually made it outside of Rome, appeals coming from outside spurred the Roman Curia to assume the role of arbitrator[24].

After having tried in vain to reason with the chief Cathars, Church and State adopted three different types of approach: pastoral with the Friars Preachers, military with the Albigensian Crusade, and legal with the Inquisition.

The facts are in any case indisputable: after having hesitated and fluctuated for a long time, the papacy has chosen, from the end of the 12th and particularly the 13th century, to use a firm hand against all forms of religious dissent, whether through the Albigensian Crusade launched by Innocent III in 1209, or through extremely harsh sanctions taken against the heretics in the years 1215-1230[25].

Formally, the medieval Inquisition[26] was brought before the ecclesiastical diocesan courts by Pope Innocent III in 1199, while Gregory IX organized it in February 1231 with the Constitution Excommunicamus, prescribing life in prison for repentant heretics, and the death penalty for intransigent heretics[27]. The history of the Inquisition is a bearer of many prejudices, which it is appropriate to objectify.

Regarding the Inquisition, there have been diffused such fantastic legends that the simple recovery of a proper perspective, endorsed by the unanimous agreement of those that the scientific community recognizes as the finest specialists, can look like supplication[28].

In 1542, Pope Paul II instituted a commission of six Cardinals with a mission to oversee issues of faith, in order to preserve them from errors and false interpretations. This commission, known as the Holy Roman and Universal Inquisition, had at its inception the exclusive character of a Tribunal for cases involving heresy and schism[29].

In 1998, the Church revisited the Inquisition, at an international symposium held in Rome from 29 to 31 October 1998, whose acts were published in 2003[30]. The negative side of the Inquisition was acknowledged there:

We recognize today by common accord that this relentless battle [of the Inquisition] saw some bitter victories, for which Catholic Christianity still pays the price: nonetheless it is necessary, keeping a prudent distance from a short-sighted apologetics with an anachronistic sense of guilt, to grasp right away, with historical and doctrinal clarity, the centuries-old evolution of complex relations between fides and mores, between faith and heresy, between orthodoxy and heterodoxy [31].

However,

It nonetheless has to be said that the Inquisition brought progress, because nobody could be judged without an inquisitio, i.e. without there having first been an investigation, a review[32].

Indeed, the positive aspect of the Inquisition was not appreciated enough, because all in all, it is better to have an imperfect justice[33]  than a military expedition[34] characterized by the saying, « Kill them all, God will recognize His own,” formulated in the course of the Albigensian Crusade[35]. It also seems that the Inquisition helped to limit the number of executions, in a context where the whole world was suspect:

In the XIVth and XVth centuries, the accusations of heresy multiplied and were now aimed at all those who disobeyed the Church or were opposed to its authority, including in the temporal domain. The circle of proceedings kept widening, and eventually they considered to be heretics men and women whose only fault was to publicly denounce the abuses of the clergy and the ecclesiastical hierarchy’s leanings toward authoritarianism[36].

A famous case of ecclesiastical justice from that era is that of the Templars.

Between 1307 and 1312, a series of papal bulls governed the order of the Templars following a trial for heresy prompted by rivalries between Pope Clement V and the King of France, Philippe IV “le Bel.” Here are a few points of reference in this complex case. On the morning of October 13, 1307, Philippe IV arrested the Templars in France, and asks other European sovereigns to do the same. In 1307, Pope Clement V publishes the bull Pastoralis Praeminentiae, ordering European sovereigns to stop the Knights Templar who reside in their territory, and put their assets under the management of the Church. In 1308, the bull Subit Assidue provides for two separate procedures for a trial of the Templars: one concerned physical persons, the other the Order itself as a legal person. Later, the bull Faciens Misericordiam defined the charges brought against the Templars. The same year, Pope Clement V secretly absolved Jacques de Molay and the other heads of the Templars of the sins that the Inquisition had accused them of[37]. In 1312, the bull Vox in Excelso suppressed the Templars, then the bull Ad Providam transferred the property of the Temple to the order of the Hospitallers, while the bull Considerantes Dudum established the legal situation of former Templars in three categories.

 

In general, public opinion considered the Inquisition to be a criminal court, yet the archives of the Holy Office which were opened in 1998 show that administrative law was prevalent:

It is enough to flick through one of the volumes of decrees of the Congregation [Roman and Universal of the Inquisition] to see the very low number of doctrinal investigations, compared to the large number of administrative cases[38] … /… The number of administrative proceedings was on the contrary very vast: they ranged from formal or suspected heresies, which were more specifically under the jurisdiction of the Holy Office, to cases involving apostasy, bestiality, magic, spells, polygamy, and many others, which were only indirectly under its jurisdiction. The most numerous trials were to resolve cases that were submitted by the lower courts: Nuncios, bishops and inquisitors. There was regular contact, surprisingly fast, with the aforementioned bodies, and a large mass of work […] that could include eight meetings of Cardinals in the case of Cristoforo Sapone[39].

2.3. Jurist-Saints

In the 13th century, the justice of the Middle Ages was located in a culture quite different from that of our days, and so is it appropriate to give a different perspective, as recommended by Cardinal Kasper:

Throughout the history of the Church, it has never ceased to have jolts and charismatic movements that have shaken it, to avoid the dangerous temptation to gentrification. That is why we cannot write the history of the Church merely as the history of an institution, still less as a history of the crimes of the Church. It is foremost a history of the saints and a history of movements of sanctification and renewal.[40]

Let us turn therefore to the lives of two saints who have had an important influence on the justice of the French Middle Ages: a layman, Saint Louis (1214-1270), and a cleric, Saint Yves (1253-1303).

According to Jean Foyer,

It was necessary to await Saint Louis, in the middle of the 13th century, so that there could be a return to rational evidence, which remained in force only in the ecclesiastical courts[41].

Louis IX, who reigned in France from 1226 to 1270, undertook a comprehensive reform of judicial institutions in 1254 with the assistance of the royal Inquisitors, ensuring a connection with the Curia in parliamento, which played the role of a court of appeals for decisions made by the courts of the bailiwick[42]. He renewed the “Quarantine of the king[43]”, ordered the presumption of innocence, prohibited the ordeal[44] and established a civil form of supplicatio[45], allowing for an appeal to the king in disputes between a feudal ruler and one of his subjects. He made his recommendations about justice to his son[46].

Saint Yves is the patron saint of lawyers and of all legal professionals[47]. From his process of canonization[48], conducted in 1330 at Tréguier in Brittany and presented to Pope John XXII on June 4, 1331[49], it is clear that Yves Hélory of Kermartin (1253-1303) [50] was an honest man of good life[51], chaste and humble, assiduous in prayer, living a life of great austerity and goodness to the poor. Most of the witnesses stressed his tremendous love of justice and peace. Here are some extracts from the evidence contained in the records of his canonization process:

Dom Yves […] argued cases for free for the poor, minors, widows, orphans and all other unfortunate persons; he defended their cases; even without being asked he offered to defend them, and thus he was called everywhere the lawyer of the poor and the unfortunate. … /… He became an official of the Archdeacon of Rennes, and subsequently an official of the bishop of Tréguier. In his work he behaved in a holy and just manner, without being preferential or differentiating between people[52].

He was a man with a great spirit of justice, because he was trying to bring peace between people who disagreed, respecting their rights as much as he could, and when he could not get them to make peace between them, as an official of Tréguier he meted out swift justice[53].

During the period when he occupied the office of an official, he encouraged all his collaborators to be fair, as was said publicly, and, when he could, he made every effort to bring peace to opposing parties. I personally saw Dom Yves many times establishing peace between many people who had taken their disagreements to court[54].

Since a woman had no money to pay for the court records she needed, he asked the notaries of the court in question to do it for the love of God, and they did so[55].

A poor knight called Richard Le Roux, of the parish of Trédez in the diocese of Tréguier, went to court against the abbot of the Blessed Mary of Relecq in the diocese of Quimper, and had no funds to continue his court process. His poverty would have made him lose the whole case, if Dom Yves had not intervened to promote and support his case for free as a courtesy, and he won his case. However, Master Yves Hélory only agreed to take in hand the case of this poor man if he would swear on the Holy Gospels that he thought he was in the right. He also undertook to hear the testimony of those who recognized that his case was just. In these regions, these facts are well known to the public[56].

He defended the cases of the poor, widows and other unfortunate persons as much as he was able[57].

He enjoyed such great authority and respect that he managed to reconcile people who were in dispute. It was to this mediation that he often dedicated himself. Those who were in disagreement did not trust others; they relied only on him and he always managed to reconcile them in peace.[58]

With regard to medicinal penalties, Saint Yves did not administer them only in the course of a canonical trial:

When he [Dom Yves] arrived in this parish [of Louannec], the mismanagement of the previous Rector, who had little or no concern for the good of souls, had brought it about that a good number of people there were living immoral lives. Upon his arrival, Dom Yves began to preach to his parishioners the Word of God, and his preaching was followed to the point that honest and good people improved the bad, depraved or dishonest parishioners, who were thus put on the way of salvation through his holy and good sermons.  He also brought to repentance those who indulged publicly in lust or usury; they amended their lives thanks to him, and he made them fast on bread and water for some days and at certain periods, to go without a shirt, to go on pilgrimages.[59]

Here is how he conducted himself:

Geoffroy de l’Ile and my mother took opposing sides, they had a dispute and an important trial in respect of movable and immovable property. Dom Yves insisted that the parties make peace between by finding some amicable arrangement. But more often, Geoffroy did not. Finally, one day Dom Yves told the complainants that he wanted to celebrate Mass, and they had to wait until the Mass was finished, because he had hope in the Lord and confidence that after the Mass they would find peace and concord. When the Mass was over, Dom Yves returned to the complainants; and our Geoffroy, who opposed him very much before the Mass, was led to peace and concord by the holy prayers of Dom Yves, that is what I believe, and he offered to engage in mediation on the disputed points, and abide by the decision of Dom Yves, whatever it would be. Subsequently, Dom Yves restored between the parties good peace and concord and put an end to this trial which gave satisfaction to each of the Parties[60]

Finally, the invocation of Saint Yves, after his death, is at the origin of many miracles and inexplicable healings, as well as the resurrection of more than ten persons[61].

2.4. The Index and the Condemnation of Books

In the 16th century, after the emergence of Protestantism, a new episode marked ecclesiastical justice, namely the publication of the Index Librorum Prohibitorum, the index of forbidden books, created in 1559 and regularly updated until its suppression in 1966[62], with addition made by the Pope or the Sacred Congregation of the Roman and Universal Inquisition. Many administrative decisions were made against writers, clerics or laypersons, with a right of defense that was more or less important granted to the authors concerned.

For example, Galileo was interrogated by the Holy Office about his successful book, Dialogue Concerning the Two Chief World Systems which received an imprimatur, but which embraced Copernicus’ theory of heliocentrism that had been condemned fifteen years earlier[63]. On 22 June 1633, at the Dominican Convent of Santa Maria, a ruling was made against Galileo who, under threat of torture, pronounced the formula of abjuration that the Holy Office had prepared[64]. On 31 October 1992, he was rehabilitated by Pope Saint John Paul II on the occasion of his speech before the Pontifical Academy of Sciences, where he recognized the errors of some theologians of past centuries, without further castigating the ecclesiastical justice of the time which had put Galileo under house-arrest, instead of sending him to prison[65].

2.5. Trials for Witchcraft

On 5 December 1484, Pope Innocent VIII promulgated the bull Summis Desiderantes Affectibus, which led two Inquisitors, Dominicans Heinrich Kramer and Jacob Sprenger, to conduct a cruel witch-hunt in Germany. In 1486, in Strasbourg, the Inquisitors published Maleficarum Malleus (“The Hammer of the Witches”), trying in particular to explain why women are more affected by witchcraft than men. This book, which went through 27 editions between 1487 and 1669, was a manual intended for fighting against the demon, written for the use of inquisitors and judges participating in the fight against witchcraft. Michelet noted in 1862:

The old prisons, the confessors’ manuals for the examination of sins, these were succeeded by Directoria for the examination of heresy, which is the greatest sin. But for witchcraft, which is the greatest heresy, there were Directoria or special manuals, hammers for the witches. These manuals reached their perfection with Sprenger’s Malleus[66]

Legally, the affairs of witchcraft were under the jurisdiction of civil courts and not the Inquisition, but this did not prevent some inquisitors from being able to take part as judges. In effect, in the former Netherlands and in the principalities of Liege and Stavelot-Malmédy, the Nemesis Carolina of Charles V[67] authorized the local courts to arrest, interrogate, and punish by fire those who were suspected of engaging in witchcraft. Everywhere in Europe, civil justice was rampant against witches, in collaboration more or less closely with the Church[68], with a peak between 1550 and 1650. In Germany, in the years 1620 to 1630, the funeral pyres of wizards and witches lit up by the hundreds, whereas:

The reservations expressed in 1631 by the Rhine Jesuit Frédéric Spee, with respect to judicial procedures which lead so many alleged witches to the stake were not taken into consideration[69].

At this time, the mechanism of the civil trial was far from respecting the rights of the accused:

Regardless of the court before which they take place, the mechanism of the process in witchcraft cases was virtually always the same. Things started with “popular gossip,” against a man or a woman. […] this led to an accusation that this man or this woman is a witch or a wizard; a judge intervened, and had the suspect arrested; the process then began. Therefore, the main goal of the judge would be to obtain the confession of the accused. What would he or she admit? Not evil things: the popular gossip, confirmed by the testimony of a few witnesses, was sufficient to establish it. But that he would confess his relations with the devil, because these are the ones who, legally, qualified as witches. […] Most of the trial involved confessions of this kind. […] Additionally, to confirm or supplement the confession, the judge also had the means to administer the test that the accused might have delivered himself over to the demon. This evidence, it is the mark of the Devil, an insensitive point on the body, that a surgeon was working to find by pricking the unfortunate person with a needle. And if he reacted to all the pricks? The response of the judge was ready: The demon comes to the rescue of his creature in concealing his famous mark. […] Since, in fact, the mechanism was in place for any person that it captured almost invariably to be intended for conviction, the torture, finally, served less to overcome the witch than to make him confess his accomplices. […] It is certain that they burned many more witches during this half-century, that of heretics during the previous half-century[70].

Thus the Inquisition, that has so long been criticized, does not need to be ashamed in the face of the cruelty of the civil courts. It should be noted in addition that trials also concerned animals[71], with them being sentenced to death for having killed people or damaged crops[72], but also for the crime of witchcraft[73]! The last death sentences for the crime of witchcraft are recorded around 1679 in France.

2.6. Justice for the « Natives »

In the colonies, voices are heard at the beginning of the 16th century, such as that of Antonio Montesinos, denouncing the abuses committed by Christian settlers against the populations of South America.

In 1537, Pope Paul III officially condemned slavery of the Indians « or of any other people who would be discovered. » This prohibition was respected for some time by Spain, but not by Portugal.

Thirteen years later, the controversy of Valladolid, held in 1550-1551 at the request of Charles V and ecclesiastical authorities, was one of the stages of the legal debate of the time, which finally led to protection of the South Americans, whereas the blacks in Africa and the Indians of North America were reduced to slavery or decimated.

As for the implementation in practice of this positive law in favor of the slaves:

In Mexico, for example, it was the duty of citizens to denounce in the Inquisition and the Audienca any illegal behavior, but this legal protection had little real impact on the institution of slavery. The slave remained entirely at the mercy of his master[74].

On several occasions, the religious who protested against slavery within their order were recalled to the city, like the Jesuits Marcia Garcia and Gonçalo Leite; or excommunicated, like the Capuchins Francisco José of Jaca and Epifanio of Moirans, when they went beyond the mere denunciation of the ill-treatment of slaves, and raised the question of the injustice of the institution[75].

2.7. Justice during the French Religious

After the reformation[76] and the Council of Trent[77], and its gradual adoption by provincial synods, France was shaken by the wars of religion, with bloody episodes, such as the conspiracy of Amboise (1560), Saint-Barthélemy (1572), the Dragonnades[78] and the War of the Cevennes or War of the Camisards[79], despite the truce between the Edict of Nantes (1598) and the Edict of Fontainebleau (1685). At this time royal justice had precedence over religious justice. Among others, one case hit the headlines, namely the Calas case, which Voltaire described as « a trial of intolerance and religious fanaticism.[80].

A graduate in law, Marc-Antoine Calas wanted to become a lawyer, but he faced the anti-Protestant legislation which prohibited the « so-called reformed” from adopting this profession. He then worked in his father’s shop in Toulouse, where he was found dead on 13 October 1761. The investigation did not find the murderer, and his father, Jean Calas, submitted twice to ordinary and extraordinary torture, confirmed that he and his household were innocent , and confessed nothing to Father Bourges who was nearby, except that he wanted to die a Protestant. He called upon God as his witness, and prayed to Him to forgive his judges. But in 1762, the Parliament of Toulouse condemned him to the death penalty. Two years later, an Assembly of 24 overturned the sentence of the Parliament of Toulouse, and ordered an entire revision of the trial. In February 1765, the magistrate David of Beaudrigue was removed, and on 9 March 1765, Jean Calas and his family were permanently rehabilitated unanimously by the local court of appeals[81].

Another topic referred to in the 16th century concerned the practice of some families to dispose of their children, by marrying them off or putting them in a convent against their will.

Although there are many victims in the convents, forced to embrace the religious state, no author has yet written on this subject of common interest[82].

With regard to ecclesiastical justice, the collective memory has retained the case of Marguerite Delamarre, who inspired the anticlerical novel The Religious that Diderot wrote in 1760 and 1780 and which was published posthumously in 1796.

The story was inspired by that of a French nun of the abbey of Longchamp named Marguerite Delamarre, born in 1717 and died after 1790. She gained attention in 1758 for having unsuccessfully appealed to ecclesiastical justice to be released from the cloister where her parents had enclosed her.

 

2.8. French Justice after the Revolution

As the Age of Enlightenment was seeking to liberate itself from ecclesiastical trusteeship, philosophers such as Locke or Montesquieu proposed the theory of the separation of legislative, executive and judicial powers[83]. In addition,

The claim of a separation between administration and justice appeared in the Cahiers de doléances, when they brought up the suppression of the stewards[84].

Accordingly, the French Act of 16-24 August 1790 separated the administrative and judicial authorities and, following the logic of the separation of powers, it forbade the courts from taking part in the exercise of legislative and executive powers.

The ordinary judge cannot intervene in the activity of the administration, under penalty of forfeiture (Art. 13)[85].

In the field of jurisprudence, its application was particularly marked by the Blanco case[86], in which the court of conflicts[87] affirmed both the responsibility of the State for damage caused to citizens by public services, and the competence of the administrative jurisdiction to settle the dispute:

Action brought by Mister Blanco against the Prefect of the Department of the Gironde, representing the State, has for object to declare the state civilly liable, by application of Articles 1382, 1383 and 1384 of the Civil Code, for damage resulting from the injury that her daughter would have received by the fact of workers engaged in the administration of tobacco; considering that the responsibility, which may be the responsibility of the State, for damage caused to individuals by the fact of the people it employs in the public service, may not be governed by the principles which are established in the Civil Code, for the relations of an individual to another individual; that this responsibility is neither general nor absolute; it has special rules which vary according to the needs of the service and the need to reconcile the rights of the State with private rights; that, therefore, under the terms of laws above referred, the administrative authority is the only competent authority to handle this case.

It is necessary to read the work of legal historians, such as Jean-Louis Mestre[88] or François Burdeau[89]  to study in more detail the way in which the law and administrative justice were put into practice after the Revolution, with excessive rules of common law.

2.9. Ecclesiastical Justice after 1917

Administrative Tribunal of the Church, is the subject of many works, such as those by P. Santini[90], J.D. Mc Clunn[91], H Schmitz[92], C. Lefebvre, K. Frederico D’Ostilio[93], Gianfranco Ghirlanda[94], Matthews[95], Edouardo Labanderia[96], John J. Coughlin[97], Niccolo del Re[98], Ignatius Gordon[99],

Canon 1601 of the 1917 Code[100], as well as canons 1552 §2 and 1667 specify the terms and conditions of hierarchical recourse in administrative matters and provided a foundation for the future administrative justice in the Church. Here is an example of a hierarchical recourse dating from 1927, against a refusal of an imprimatur for a book about the stigmatized Bavarian mystic, Thérèse Neumann.

In 1926, Thérèse Neumann was the subject of a positive speech by the Archbishop of Munich, the future Cardinal Faulhaber, but in 1927, the book Das Leid einer Glückseligen[101], which speaks about her, was refused an imprimatur by the bishop of Regensburg. This decision was the subject of a hierarchical recourse to the Roman Curia[102], but it had no positive result because, as Agnes Demazière said[103], « the appeal addressed to Rome by Witt also reflected a challenge to episcopal authority. Traditionally, the Holy Office prefers to leave to the bishop the care to pronounce on the natural or supernatural origin of mystical phenomena, and avoids intervening. When it intervenes, the Congregation aims above all to restore the authority of the bishop in question. The refusal of the imprimatur by the bishop is thus confirmed. » Subsequently, the Holy See, and Pope Pius XI in person, sought to retain Pontifical neutrality on this issue, allowing Diocesan investigations to take place freely, and a free discussion between psychiatric medicine and Catholic religious psychology about the stigmata and the prolonged fast of Thérèse Neumann. At the end of 1937, the Roman congregation sought, however, the transfer to another parish of the parish priest of Konnersreuth, the spiritual director of Thérèse, because it feared an unconscious capacity of reciprocal suggestion[104]. On 13 February 2005, Gerhard Ludwig Müller, bishop of Regensburg, opened her Beatification process, which to date has not been concluded.

 

To return to France, three tensions with Rome have marked the history of the beginning of the 20th century, with regard to Marc Sangnier, of French Action and worker-priests. Without wanting to stir up the past, let us briefly recall the situation of ecclesiastical justice before the period that we propose to study.

To the left of the French political chess-board, Marc Sangnier, is co-founder of Le Sillon (“Le Sillon”).

Le Sillon has intended to achieve in France a Democratic Republic. This is therefore not a Catholic movement, in the sense that this is not a work whose particular aim is to put itself at the disposal of the bishops and parish priests to help them in their own affairs. Le Sillon is therefore a lay movement, which does not mean that it cannot also be a movement that is deeply religious.

This project received first of all the approval of Pope Leo XIII because it enabled many workers to rally to the Catholic Church:

It is a pleasure for me to let you know that the purpose and the goals of Le Sillon have greatly pleased His Holiness[105].

However, the proximity of Le Sillon to the anticlerical parties of the French left led in 1910 to a condemnation of the movement by Pope Pius X. Protesting its commitment to the Church, Marc Sangnier then dissolved the movement and stopped the publication of its review.

A similar scenario occurred to the right of the political spectrum, after Charles Maurras had given a monarchical and anti-Semitic impulse to l’Action française, founded in 1898 at the time of the Dreyfus case. In the 1910’s, it received the blessing of Pope Pius X due to its « immense services rendered to the Church.” In 1926, the movement was condemned, first by Cardinal Andrieux and then by Pope Pius XI, and on 29 December 1926, several books by l’Action française were put on the Index. On 18 June 1939, l’Action française signed a compromise, in which it recognized its past errors and protesting its commitment to the Church. Pope Pius XII granted the movement forgiveness in July 1939[106].

A third tension related to the episode of worker-priests, created in response to the Encyclical Letter Rerum Novarum of Pope Leo XIII:

We are convinced, and everyone agrees, that it is necessary, by prompt and effective action, to come to the aid of men of the lower classes, since they are for the most part in a situation of undeserved misfortune and misery.

From 1942, several priests become workers; very often they denounced their living-conditions, but their attitude did not suit their French Catholic employers, who complained to the bishops and the Roman Curia[107]. On 7 March 1953, Cardinals Liénard and Feltin asked the Master General of the Friars Preachers to send away Fr. Maurice Montuclard; and on 16 March 1953, his article « The Event of Faith » was put on the Index. On 27 May 1953, worker-priests A. Piet (O.P), A. Gauche, and C. Monnier (S.J.) had to leave their diocese. On 27 July 1953, Cardinal Pizzardo prohibited internships at the factory for all the seminarians. On 30 and 31 July 1953, Frs. Avril and Liégé were summoned by the General Curia of the Order of Preachers to Rome. On 29 August 1953, the Curia sent out a notice regarding the gradual withdrawal of religious worker-priests. On 6 September 1953, the seminary of the French Mission was closed. On 11 November 1953, Fr. Feret was brought before the Holy Office. On December 26, 1953, Cardinal Feltin received the Jesuit priests-workers, and they left their jobs the following day. On 7 February 1954, Fr. Avril, Prior Provincial of the Dominicans, resigned. On 8 February 1954, Fr. Chenu was exiled to Rouen and lost his privileges of Master in Theology, Fr. Feret interrupted his teaching in Paris, Fr. Boisselot left Paris and ceased to be the Director of Cerf, Fr. Yves Congar was exiled[108]. On 1 March 1954, the Vatican put an end to priest-workers. On 27 April 1954, the Plenary Assembly of the episcopate published a pastoral statement on social matters for the use of the clergy.

These positions of the Church in the face of worker-priests were relayed by the press[109], and gave rise to misunderstandings recounted by many publications[110]. On the dogmatic and ecclesiological plane, the hard position of the Church must be interpreted in light of the context of the historical politics of the time, marked by the Cold War and by the encyclical Quadragesimo Anno (1931), in which Pius XI condemned the socialist doctrine in abrupt terms: « No person can at the same time be a good Catholic and a true socialist” that Pope John Paul II explained later in Centesimus Annus (1991).

The fundamental error of socialism is of an anthropological nature, that is to say that socialism considers the individual as a simple element, a molecule of the social organization, so that the good of each one is entire subordinate to the operation of the economic and social machinery.

On the canonical plane, publications relating to the worker-priests highlight the limits of hierarchical recourse at the time[111]. They may have contributed to the major change introduced by the Second Vatican Council, for better taking into account of the rights of the faithful. Regardless of the political aspect, the preconciliar ecclesiology posed problems, as Cardinal Robert Sarah himself tells us, in his story of 1966 when he was a seminarian in France:

During the holidays, we worked on farms or in workshops to earn a little money. [Our bishop] showed intransigence in the management of the amounts that we earned. He did not want us to be able to keep a penny of our wages. One day, the oldest of us had not respected the rule, and kept the money to buy a motorcycle. […] Our bishop was angry with the whole group, including those who had complied with his instructions, like me. […] I then went through a period of doubt. In deep confusion, I vaguely considered leaving the seminary. I went to see my spiritual director, Fr. Denis, to express to him my disappointment. He said to me: « Listen to me well, Robert. I have known four bishops in Nancy, with their sometimes difficult faults, and their very enlightening qualifications. You will not be a priest for the bishop but for Christ, despite your bishop or together with him. Certainly, it is he who will call you to the priesthood, but you will be a priest for the Church. Today, you must deal with Mgr. Tchidimbo, and tomorrow, you’ll learn how to tame the character of his successor.” The only surprise was that the successor of Mgr. Tchidimbo [Archbishop of Conakry] by the mysterious will of God, turned out to be me…[112].

 

Let us now leave this historical overview to look in greater detail at the period chosen for our research, namely the years 1967 to 2017.

[1] Bruguès (Mgr Jean-Louis op.) Since 2012, Archivist and Librarian of the Holy Roman Church. Church and Memory conference given at Albi on 14 November 2015, http://catholique-tarn.cef.fr/Église-et-memoire-Conference;

[2] Vigano (Mgr Dario Edoardo), statements reported by the Italian Catholic News Agency SIR on 19 July 2017.

[3] The first part of this chapter is mainly composed of contributions by historians of the current law, who wish to remain anonymous.

[4] Francis (Pope), “Fraternal Correction is Exercised with Love and Humility,” Homily at Santa Martha on 12 September 2014.

[5] Gaudemet (Jean), L’Église dans l’empire romain (iv°-v° siècles), Paris, Sirey, 1989, coll. Histoire du Droit et des Institutions de l’Église en Occident, 818 p.; on the legal organization, see in particular pp. 229 and ff.

[6] For the 1917 Code and the result of the historical developments, see the article by P. VALDRINI, in Pouvoirs, 1981.

[7] Mark, 9, 38-39.

[8] Kasper (Card. Walter), L’Église catholique. Son être, sa réalisation, sa mission, Paris 2014, Cerf, p. 230.

[9] Cf. Actes 6, 1-3 ; 1. Tim. 5, 16 ; Jacques 1, 27.

[10] Emefu (Clément Chimaobi), CSSp, « La déontologie du juge ecclésiastique », report of Masters’ research on the history of the canon law, submitted on 7 September 2016 at the University of Paris-Sud and at the Catholic Institute of Paris.

[11] Matthews (Kevin), « The Development and Future of the Administrative Tribunal », Studia Canonica, XVIII, (1984), p. 3-233. See in particular Chapter 3 on the extrajudicial appeal and hierarchical recourse..

[12] Hefele (Charles Joseph) A history of the Christian Councils (Trans W.T. Clark), 2nd ed. revised, Edinburgh, T. & T. Clark, 1894-1896, vol. 3, p. 395, Translated from English then from French.

[13] Gaudemet (Jean), Église et cité, histoire du droit canonique, Paris, Cerf, Montchrestien, 1994, p. 112.

[14] Augustin (Saint) Sermon à Caillau, 11, 5 ; M. A. 250-251 in Saint Augustin, Le visage de l’Église, p. 311-312.

[15] Vauchez (André), Les Hérétiques au Moyen Âge. Suppôts de Satan ou chrétiens dissidents ? Paris, CNRS éditions, 2014, p. 35.

[16] Ripoll (Jean de), Letter to the abbot-bishop Oliba, cited by André Fleury in Vie de Gauzlin, abbé de Fleury, R. H. Bautier & G. Labory (ed.), Paris 1969, p. 18, cited by André VAUCHEZ, op. cit. p. 35 note 66.

[17] Vauchez (André), op. cit.  p. 35.

[18] That of King Robert, concerning the heretics of Orleans.

[19] Vauchez (André), op. cit. p. 36.

[20] Idem, p. 39.

[21] Idem, p. 40.

[22] In particular, cases of simony (trafficking in spiritual property), Nicolaism (« incontinence » of the clergy) or of investiture of clerics by the laity.

[23] Anaclet II became antipope after the contested election of Innocent II. The schism was ended in 1238 when Victor IV, successor to Roger of Sicily, who had been the defender of Anacletus II, took the side of Innocent II.

[24] Paravicini Bagliani (Agostino,) « L’Église romaine de Latran I à la fin du XIIème siècle », in Histoire du Christianisme : Apogée de la papauté et expansion de la chrétienté, under the direction of J-M Mayeur et al. Paris, Desclée, 1993, Volume 5, p. 201/973.

[25] Idem, p. 61, note 42.

[26] It should not be confused with the Spanish Inquisition, which was in fact a court of the King of Spain, against which the popes did not hesitate to protest.

[27] Corpus iuris canonici X, 5, 7, 14.

[28] Dedieu (Jean-Pierre), L’inquisition, Paris, Cerf, 1987, p. 8/126.

[29] Amato (Mgr Angelo), then Secretary of the Congregation for the Doctrine of the Faith, « The Congregation for the Doctrine of the Faith has always been a tribunal » in Zenit, April 1, 2004.

[30] Committee of the Great Jubilee of the Year 2000, Theological-Historical Commission, The Inquisition, Acts of the International Symposium, Bibliotheca Apostolica Vaticana, 2003, coll. Studi e testi, No. 417, 783 p.

[31] Veneu (Bruno), « Y a-t-il une hérésie inquisitoriale ? »,  The Inquisition, Acts of the International Symposium, Bibliotheca Apostolica Vaticana, 2003, coll. Studi e testi, No. 417, p. 491/788.

[32] Ratzinger (Cardinal Joseph) Declaration on 03 March 2005, on the German TV channel ARD, about his title of « Modern Grand Inquisitor ».

[33] Palès-Gobilliard (Annette), « Pénalités inquisitoriales au XIVe siècle,” in Crises et Réformes dans l’Église (Actes du 115e congrès national des sociétés savantes, Avignon, 1990), Paris, 1991, p. 143-154: « The analysis of the archives of Bernard GUI showed that in 16 years (1307-1323) of exercise in Toulouse, the Inquisition delivered 501 sentences and 243 remissions of sentence, usually to end a period of detention. More specifically, it ordered 29 death sentences, 80 condemnations to be burned at the stake with respect to the number of bodies exhumed, 13 sentences of close confinement (prison farm), 231 sentences of open confinement (house arrest), and 107 defamatory penalties. The most important burning at the stake, ordered on 5 April 1310, resulted in 17 victims. »

[34] The Massacre at Beziers caused between 5,000 and 10,000 deaths.

[35] Berlioz (Jacques), Tuez-les tous, Dieu reconnaîtra les siens : la croisade contre les Albigeois vue par Césaire de Heisterbach, Toulouse, Loubatières, 1994, 135 p.

[36] Vauchez (André), Les Hérétiques au Moyen Âge. Suppôts de Satan ou chrétiens dissidents? Paris, CNRS éditions, 2014, 309 p.

[37] This information is from the parchment of Chinon kept in the Vatican Secret Archives, and studied by the Italian historian Barbara Frale, then published by the Vatican in 2007. The conviction and execution of the Templars at the stake was mainly the responsibility of King Philippe IV “le Bel,” and not of the Pope and the Church.

[38] Garuti (Adriano), « La santa romana e universale inquisizione : strutture e procedure », in: L’inquisizione. Atti del Simposio Internazionale Rome, Biblioteca apostolica vaticana, 2003, coll Studi e testi, No 417, p. 383, traduit de l’italien par l’auteur.

[39] Idem, note 33. Cf. Archivio della Congregazione della Dottrina della Fede. (ACDF)

[40] Kasper (Card. Walter), L’Église catholique. Son être, sa réalisation, sa mission, Paris 2014, Cerf, p. 245.

[41] Foyer (Jean), Histoire de la justice, PUF, 1996

[42]  Collective, Encyclopédie Larousse, Louis IX, consulted on 7 January 2016.

[43] The “Quarantine of the king” was a period of 40 days established by Philippe Auguste or Philippe le Hardi, and renewed by Louis IX in 1245. It enabled the avoidance of private wars, by establishing a mandatory period of reflection, requiring the two sides to wait for 40 days before settling a conflict.

[44] The ordeal is a form of judicial procedure, of religious origin, also called judgment of God. It consisted of a judicial test used in the Middle-Ages to establish the innocence or the guilt of the accused.

[45] Recorded as of 1342, the supplications (requests of any kind) addressed to the Pope constitute one of the oldest sources in the Vatican Archives. […] It is essential not to isolate the pontifical sources of requests addressed to other sovereign powers of medieval Europe, Italian cities or kingdoms of France, Spain or England. The comparison of the archives expressing the requests of subjects to their Prince in the West at the end of the Middle Ages shows the existence of a particular form of exercise of sovereignty that may be termed « Government by Grace. »  Cf. Millet (Hélène) Suppliques et requêtes : le gouvernement par la grâce en Occident : 12e-15e siècle, Roma: École française de Rome, 2003, Collection de l’École française de Rome 310, 435 p.

[46] Louis IX: If it happens that you become King, take care to have the qualities agreeable to a king; that is to say, be fair, so that whatever happens, you did not stray from justice. […] Prefer to support the poor against the rich until you know the truth; and when you know, do what is just. […] If you learn that you possess something wrongly, return it immediately, however great this thing may be, land, money or other property.

[47] Canonists chose as their patron Saint Raymond of Pennafort, who in 1234 compiled the Five Books of Decretals, by order of GREGORY IX.

[48] In Breton, Zant Erwan.

[49] Le Guillou (Jean-Paul), French translation of the investigation conducted at Tréguier « On the life, morals and miracles of Yves Hélory of KERMARTIN in view of his canonization, » presented on 4 June 1331 to Pope John XXII. Saint Yves, ceux qui l’ont connu témoignent, ceux qu’il a guéris témoignent, 2nd édition française, Saint Brieuc, Teck impressions, April 2003, 160 p.

[50] Born in Minihy in Tréguier in 1253, during the reign of Saint Louis; died two kilometers from Tréguier, 19 May 1303.

[51] Fuit homo bone vita, fuit homo honeste.

[52] de Kerc’hoz (Jean), Clerk and jurist, parishioner of Pleubian, diocese of Tréguier, 90 years old. Witness No. 1, p. 15-16.

[53] Jaquet, Son of Rivallon, parish of St. Peter of Louannec, aged 50 years, witness No. 43, p. 63.

[54] de Trégroin (Darien), Rector of the Diocese of Tréguier, aged over 50 years, witness 47, p. 68.

[55] Brother  Pierre, religious, Abbot of the Monastery of Bégard, of the Order of Citeaux, in the diocese of Tréguier, 50 years old, witness No. 19, p. 37-38.

[56] Thomas de Ploulec’h (Alain), diocese of Tréguier, 70 years old. Witness No 31, p. 49, 50.

[57] de Croyfrooc (Jean), Esquire, parish of Ploubezre, diocese of Tréguier, witness No. 34, p. 53.

[58] Toulefflam (Hamon), of the parish of Plestin in the diocese of Tréguier, Hermit of good reputation, witness No. 20, p. 40.

[59] Menguy (Yves), of the parish of Louanec, diocese of Tréguier, witness No. 35, p. 63.

[60] Portier (Raoul), cleric of Lanmeur, diocese of Dol, witness No 12, p. 30 and No 13, p. 31.

[61] Following are the persons, for whom several witnesses have testified:

  1. Alain Guigon, son of Alain and Adénoro Guidon(witnesses 53 to 55)
  2. Yves Rivallon Cohozer, native of Plouguiel, who died in Angers (witnesses 56 and 57),
  3. Théophanie, daughter of Alain and Mobilia DE ROSCNEZNE, of the parish of Ploelan (Witnesses 58 to 60)
  4. Guenutera, daughter of Rivalon MAGUET, of the parish of Saint Scilien (diocese of Léon), (Witness 61)
  5. Amicie, daughter of Agnes and J. BRANCIE, of the parish of Pommerit le Vicomte (diocese of Tréguier), (Witness 62)
  6. Henri Olivier or DE MOSTIER of Léon, parishioner of Plouvenez (diocese of Quimper) (Witnesses 63 and 64)
  7. Alain, son of Cadioc Scalart, parishioner of Pleubian (Witnesses 65 to 67)
  8. Raymond, son of Alain LE ROUX, parishioner of Saint Briac (Bourbiac) diocese of Tréguier, (Witnesses 68 to 70)
  9. Rolland, son of Geoffroy, of the parish of Pédernec, diocese of Tréguier (Witnesses 71 and 72)
  10. Aymeri, son of Hamon GOGEESAY, of the parish of Lannion, diocese of Tréguier, (Witnesses 73 to 75)
  11. Guillaume, son of Alain GUIDOMAR, of the parish of Gazvallon, (Plouescat-Guerrand), diocese of Tréguier, (Witnesses 76 to 78).

[62] The last time a book was put on the Index was in 1961, during the Pontificate of St. John XXIII.

[63]  A book was published in Florence, entitled Dialogue Concerning the Two Chief World Systems, in which you defend the opinion of Copernicus. As a sentence, we declare that you, Galileo, have rendered yourself suspect of heresy, for having held this false doctrine of the movement of the earth and the repose of the sun. Consequently, with a sincere heart, it is necessary that you abjure and deny before us these errors and heresies contrary to the Church. And in order that your great fault not remain unpunished, we order that this dialogue be prohibited by public edict, and that you be imprisoned in the prisons of the Holy Office.

[64]  I, Galileo, son of the late Vincenzio Galilei of Florence, seventy years of age, brought here to be judged, kneeling before the very distinguished and revered Cardinal General Inquisitors against all heresy in Christianity, having before my eyes and touching with my hand the Holy Gospels, swear that I have always held to be true, and still hold to be true, and with the help of God will hold as true in the future, all that the Holy Catholic and Apostolic Church says, presents and teaches. However, since I have been sentenced by injunction of the Holy Office to completely abandon the false belief that the sun is at the center of the world and does not move, and that the earth is not the center of the world and moves, and not to defend or to teach this erroneous doctrine in any manner whatever, orally or in writing; and after having been warned that this doctrine is not consistent with what the Holy Scriptures say, I wrote and published a book in which I dealt with this condemned doctrine and presented it with very pressing arguments , without refuting them in any way; for which I have been held to be highly suspected of heresy, for having professed and believed that the sun is the center of the world, and is without movement, and that the earth is not the center and moves. I abjure and curse my errors with a sincere heart and a faith that is not weak.

[65]  Similarly the new science, with its methods and the freedom of research that it implies, required theologians to question their own criteria of interpretation of Scripture. Most have not been able to do so. …/… Galileo, a sincere believer, has shown himself more perceptive on this point that his theologian-opponents.

[66] Michelet (Jules), Histoire de France – tome 7 Renaissance

[67] Code of Criminal Justice promulgated by Charles V in 1532

[68] Bennasar (B), L’inquisition espagnole XVème-XIXème siècles, Paris, 1979, p. 233-234 : The Spain of the Inquisition escaped the great witch hunt.

[69]  Vénard (Marc), « La fin d’une époque » in Histoire du Christianisme : l’Âge de raison (1620-1750), volume 9, under the direction of J-M ; Mayeur et al. DESCLEE, 1997, p. 1149/1214.

[70] Vénard (Marc), « La hantise du diable », in Histoire du Christianisme, le temps des confessions (1530-1620), volume 8, under the direction of J-M ; Mayeur et al., Paris, Desclée, 1992, p. 1038-1039/1236.

[71] Chauvet (David), La personnalité juridique des animaux jugés au Moyen Âge XIIIe-XVIe siècles, L’Harmattan, 2012.

[72] The cases involving the animals were processes in which the accused was an animal who had committed an offense, a crime or injury just like a human being, who in principle was the only subject of law who could be held accountable. Similarly well, in the Middle Ages and well after, cows and pigs were sentenced to the gallows or the stake. The Church likewise extended its excommunication of men to animals: rats, flies, grasshoppers, moles, fish; any wildlife could be subject.

[73] Voltaire says that a horse and his master were brought to trial in 1610, both accused of casting spells. Siècle de Louis XVI, Chapter II.

[74]  Deslandres (Dominique), « Le christianisme dans les Amériques », in Histoire du Christianisme : l’Âge de raison (1620-1750), volume 9, under the direction of I-M; Mayeur et al, Desclee, 1997, p. 711/1214.

[75]  Deslandres (Dominique), op. cit. p. 714/1214.

[76]  Luther (Martin) published his 95 Theses in 1517.

[77]Convened in 1542, it took place between 13 December 1545 and 3 December 1563.

[78]   Arnaud (Florent), Le Grand Livre de l’Histoire du Monde des Hommes. Tome IV, Paris, 2010, Lulu.com 276 p. (p. 231) : After the Edict of Fontainebleau which revoked the Edict of Nantes, Louvois wrote to the stewards of Limousin and Poitou to increase the protestants’ taxes: « If, following a distribution where they should pay ten, they should give twenty.” It was particularly obeyed by René de Marillac, steward of Poitou, who encumbered the Protestants both with new taxes, and with requirements that they lodge soldiers. The new converts were, in contrast, exempt from both. Every excess was encouraged, the effect of this kind of persecution within each family exceeded every expectation of Louvois. Thousands of Protestants declared themselves to be Catholics, while those of Aunis and Saintonge emigrated en masse.

[79]  Uprising of peasant Protestants in the Cevennes and Bas-Languedoc, during the reign of Louis XIV.

[80] Voltaire, Traité sur la tolérance, Paris, 1763.

[81] Portal of justice : www.justice.gouv.fr/histoire-et-patrimoine-10050/proces-historiques-10411/laffaire-calas-22774.html

[82] Brunet de Brou, La religieuse malgré elle. Amsterdam 1720, Preface, p. 7.

[83] Montesquieu, L’esprit des lois, XI, 6; e. xix, 27. Labandeira observed that Montesquieu made no reference to the administrative or executive function as it is understood today.

[84] Mestre (Jean-Louis), « L’histoire du droit administratif » in Traité de droit administratif, under the direction of Pascale Gonod, Fabrice Melleray and Philippe Yolka, Paris, Dalloz, 2011, tome 1, 841 p. (p. 13)

[85] The act of 16-24 August 1790 (Articles 13) and the Decree of 16 Fructidor Year III (2 September 1795) prohibited the judicial courts from « disturbing, in any manner whatsoever, the operations of the administrative body.

[86] A child, on the public road in front of the tobacco warehouse of Bordeaux, was hit by a wagon pushed by some employees of the State, and he had to undergo an amputation. The father of the child brought an action in damages against the said employees and against the State jointly and severally, as civilly responsible for the fact of its agents by application of Articles 1382, 1383, 1384 of the Civil Code. The conflict was severe, and the Court of Conflicts attributed to the Administrative Court the jurisdiction to hear the dispute.

[87] Court of Conflicts, case No. 00012 published in Recueil Lebon.

[88] Mestre (Jean-Louis), Introduction historique au droit administratif français ; Paris : Presses universitaires de France, 1985 ; in-8°, 294 pages [Collection Droit fondamental].

[89] Burdeau (Francis), Histoire du droit administratif : de la Révolution au début des années 1970, Paris, PUF, 1998, 512 p.

[90] Santini (P.), De referendariorum ac Signaturae historico-iuridica evolutione, Romae, 1945.

[91] Mc Clunn (J . D.), Administrative Recourse: A Commentary With Historical Notes, Washington, 1946.

[92] Schmitz (H.) « Appelatio extraiudicialis, Entwicklungslinien einer kirchlichen Gerichtsarbeit über die Verwaltung im Zeitalter der klassischen Kanonistik » in Münchener theologische studien, III Kanonistische Abteilung, 28 Band, München 1970.

[93] Ostilio (Frederico D’), Il diritto amministrativi della chiesa, Rome, Libreria Editrice Vaticana, 1995, 580 p.

[94] Ghirlanda Gianfranco, Introduzione al diritto ecclesiale, Roma, GBP ed. 2013, p. 72-86/223.

[95] Matthews (K.), « the Development and Future of the Administrative Tribunal », Studia Canonica 18 (1984) 1-233.

[96] Labandeira, (Edouardo) « La Signatura apostolica y los Tribunales Administrativos », in « IC » 42, 1981, p. 665-772.

[97] Coughlin, (J.J.) ofm, « The historical development and current procedural norms of administrative recourse to the Apostolic Signatura”, in Periodica 90 (2001) p. 455-496; 661-690.

[98] Del Re (Niccolo) La Curia romana. Lineameti storico-giuridici, Libreria Editrice Vaticana (collana Diritto canonico), 1998, 708 p.

[99] Gordon (Ignatius S.I.), « Normae speciales supremi tribunalis signaturae apostolicae: editio aucta introductione, fontibus et notis,” Periodica v. 59, fasc. 1, 1970, p. 75-113. In his article published in 1970, Gordon introduced the publication of special standards of the Tribunal of the Apostolic Signatura, previously approved on March 23, 1968, but not yet promulgated officially. He distinguished the following stages:

The initial creation:

  1. Legal secretaries in the 13th century,
  2. The Office of the Signatura in the 15th century,
  3. The double Signatura of the 16th to the 20th century, which introduced a double history:

With regard to the Signatura of Justice, the main steps are the following:

  • Its creation by the Constitution Cum Nuper Nos of Pius IV, on July 1, 1562, published in Bullarium Romanorum, t. VII, p. 224-226,
  • Its development during the 16th and 17th centuries, recounted by different authors,
  • Its suppression in 1809 by Napoleon, when he invaded the Papal States and integrated them into the Napoleonic Empire, governed by the eponymous Code,
  • Its provisional restoration in 1814, when Latium and Umbria were returned to the Pope,
  • Its various reforms in the period 1814-1870,
  • Its final suppression in 1870.

With regard to the Signatura of Graces, the main steps are the following:

  • Its creation in 1588 by Sixtus V,
  • Its developments, more or less marked, until 1839,

The Apostolic Signatura, reunified through the Constitution Sapienti Consilio of Pius X in 1908.

[100] This canon, repeated in Article 16 of the proper law of the Roman Rota, was the subject of an authentic interpretation.

[101]  Witt (Leopold), Das Leid einer Glückseligen, Waldsassen 1927.

[102]  Angerer (A.), Letter to Pius X of 1 June 1927 (ACDF, SO, Dev. V. 1927 7, 1).

[103]  Desmazières (Agnès), « La gestion ecclésiale des phénomènes mystiques sous Pie XI. Le cas Thérèse Neumann », in Pie XI et la France : L’apport des archives du pontificat de Pie XI à la connaissance des rapports entre le Saint-Siège et la France, Rome, Jacques Prévotat ed., Collection de l’Ecole française de Rome, 2011, 481-493.

[104]   S.S. Congregation of the Holy Office, « Intorno al caso di Teresa Neumann. Relazione di una visita a Konnersreuth,” March 1938 (ACDF, SO, Dev. V. 1927 7, 125), cited by Agnès DEMAZIÈRES, in op. cit.

[105] Rampolla (Cardinal) www.civitas-institut.com/content/view/305/28/

[106] Cf. Sérant (Paul), Les déchirements des catholiques français, Paris 1989, Librairie Perrin, p. 94-116/283.

[107] Loew (Jacques): Let us not forget the very great influence of great, intelligent leaders, organized and unbeatable, from the economic point of view. They will defend themselves [against strikes involving the worker priests…] They will come to Rome. […] It is necessary to be aware of our apostolic imprudence, whether social or doctrinal. It is without doubt disgusting, but at least we know everything (and even a little more than that).

[108] Yves Congar (1904-1995) was a Dominican, sanctioned and then rehabilitated, and an expert on the Second Vatican Council.  He was made a Cardinal by Pope John Paul II in 1994.

[109] On 17 February 1954, after having learned of the firing on 8 February, the Canard Enchaîné published an article entitled « Rappel à l’Ordre de saint Dominique, » noting that « it is sufficient that ‘Rivarol’ or ‘Aspects de la France’ libels this or that vaguely Catholic liberal, for that article to be taken for granted, used as proof and inserted into the record, and it can serve as evidence. Any accused, provided that he is liberal, is declared a guilty. Just like during the Inquisition. And now it is expected that the apostolic wrath will fall on the laity. Contrary to belief, the French episcopate would not in fact be innocent not in the history of the Dominicans. The disciplinary measures that have involved the abovementioned persons would have been denounced in part as a result of a petition, in which Msgr. Richaud, Archbishop of Bordeaux, took the initiative.” .

[110] Cesbron (Gilbert), les saints vont en enfer, Collonge (André), alias Gardey (Bernard), prêtreouvrier dominicain, Le scandale du xxe siècle et le drame des prêtresouvriers, Paris, Olivier Perrin, 1957, Poulat Emile,   Les prêtres ouvriers, naissance et fin.  ; Leprieur  (Francis), Quand Rome condamne  Keck (Thierry) Jeunesse de l’Église: 1936-1955, aux sources de la crise progressiste en France ; Suaud (Charles) et Viet-Depaule (Nathalie),  Prêtres et ouvriers. Une double fidélité mise à l’épreuve 1944-1969. 

[111] Valet (Paul), “During that period, I used the term ‘cruel stepmother’ to describe the conduct of the Church toward worker-priests. The term was inappropriate because in this case, the worker-priests were not only deprived of maternal love, they were abused. Some were even beaten: even those who submitted still have scars. The process against them was a process at their expense. The lawyers who were able to defend them, Fathers Féret, Liégé, Chenu, whom I had the privilege of meeting, were reduced to silence and cast aside. » Valet (p. 75).

[112] Sarah (Cardinal Robert), Dieu ou rien, interviewed by Nicolas Piat, Paris 2016, ed Pluriel, p. 58/420.