Folia Theologica et Canonica 4. 26/18 (2015)
IUS CANONICUM - Szabolcs Anzelm Szuromi, O.Praem., The effect of Pope Benedict XIV’ s canonical works on the ecclesiastical process law
198 SZABOLCS ANZELM SZUROMI, O.PRAEM. document58 which later on became the most important reference for CIC (1917) Can. 1572 § 1 after the basic historical sources of the Corpus iuris canonici59 and the statement of the Council of Trent (Session XXIV).60 Moreover, it is also true concerning the description of the second instance in the Pius - Benedict Code, in particular regarding the contents of CIC (1917) Can. 1594 § l.61 This principle has got new emphasize by Pope Francis’ s apostolic letter Mit is Iudex.61 63 * Nevertheless, we can recognize a similar basic influence of Pope Benedict XIV’s constitution in general on the detailed list of competent forums in both of the Codices of Canon Law. We can see the literary influence of the Ad militantis Ecclesiae on CIC (1917) Cann. 1561 § 1, 1566 § 1. 1625 § 3 about the different reasons to be competent regarding a particular case (including matrimonial or criminal cases); on CIC (1917) Can. 1572 § 2 concerning the first instance of the competent tribunals; on CIC (1917) Can. 1577 § 1 regarding the college of judges; on Cann. 1880-1883, 1884-1885 about the right to appeal; and even on the process of removing of pastors (i.e. CIC [1917] Can. 2147). If we compare these canons with the text of the New Code we can find there the majority of the indicated canons.65 The encyclical letter Cum illud (October 14th 1742) is dedicated to that special case when the parish priest - in particular the pastor - appeal against the decision of his ordinary. Pope Benedict XIV basically builds his argumentation on the text of the Council of Trent (i.e. Session XXIV, chapter 8). It makes very well balanced opinion on one hand about the necessary abilities to lead a particular part of faithful (i.e. learned, suitable age, disciplined, high moral level, prudence, experience in formal ecclesiastical office, eloquent style, and exemplary life style); on the other, the obligation to fill the office of pastor. The conclusion of this deliberation is quite clear: appeal against the decision of the competent diocesan bishop is lawful in only one case, if his decision was made without considering the above mentioned conditions. The appeal could be done at the diocesan bishop himself, but also at the metropolitan, primate, patriarch, or at the Holy See. The Sacra Congregano Consistorialis reregulated this explained process on August 20"' 1910 by the decree Maxima cura, which had become the source for the first codification (i.e. CIC [1917] Cann. 2147-2167). Nevertheless, the entire question has been modified already by the Second Va58 See e.g., Gasparri, P. - Serédi, I. (ed.), Codicis iuris canonici fontes, I. 723. 59 X 1.31.1 (Friedberg II. 186); X 2.2.1 (Friedberg II. 248); VI Ì.16.7 (Friedberg II. 988). 60 Cone. Tridentinum (1545-1563), Sessio XXIV( 11 nov. 1563), De ref. Can. 20: COD 772-773. 61 Ochoa, X. (f) - Andres, D. (ed.), Leges Ecclesiae, VII. 9609. 62 Franciscus, Litt. Ap. Mit is Iudex (8 sept. 2015): Art. 3. 63 CIC (1917) Can. 1561 §l=CICCan. 1408; CIC (1917) Can. 1566=CICCan. 1412; CIC (1917) Can. 1625 §3=CIC Can. 1457 §2; CIC (1917) Can. 1572 §2=CIC Can. 1419 §2; CIC (1917) Can. 1577 § 1=CIC Can. 1426 § 1 ; CIC (1917) Cann. 1880-1883=CIC Cann. 1629-1630, 1633; CIC (1917) Can. 1884=CICCan. 1634.
