De Consideratione

6. And as we have come upon the question of appeals, it will not be irrelevant to pursue the subject somewhat farther. For the conduct of them a deeply religious insight is required, so that what was intended to meet a great need may not be rendered useless through abuse. It seems to me that they may even be productive of much mischief if they are not employed with the utmost moderation. Men appeal to you from all over the world. It is a proof of your singular primacy. But if you are wise you will rejoice not in your primacy, but in its fruitfulness. The apostles were told not to rejoice in the spirits being subject to them.¹ Men appeal to you, as I have said, and I would the resulting benefit were equal to the necessity. Would that when the oppressed cries the oppressor might have reason to know it! Would that the wicked in his pride did not consume the poor! What so fitting as for the oppressed to call upon your name and find a refuge, but that the crafty should not escape? What on the other hand is so perverse, so unfair, as that the wrongdoer should rejoice, and he who has suffered wrong should be harassed for nothing? You sadly lack humanity if you are not drawn towards a man whose heart is full of grief through the wrong which has been done him, the toilsome journey, and the expenses which he has incurred. But there is a no less sad lack of spirit if you are not roused against him who is partly the direct, partly the indirect, cause of so many calamities. Rouse thee, man of God, when these things happen; let both your pity and your indignation be stirred. The one you owe to the injured, the other to him who inflicts the injury. Let the former be consoled for his losses, by satisfaction for his wrongs, by putting a stop to the malicious charges; let the latter be so handled that he may be sorry for having done what he was not afraid to do, and may not laugh at the punishment of the innocent.

7. I think he ought no less to suffer who has appealed without cause. You have the rule of justice based on the fixed principles of divine equity, and, unless I am mistaken, also enjoined by the very law regulating appeals. This provides that an unlawful appeal must not benefit the appellant, nor prejudice the defendant. Why should a man be harassed for nothing? It is perfectly just that he who wished to injure his neighbour should instead injure himself. To unjustly appeal is to do injustice; to unjustly appeal and escape scot-free only lights the fire of unjust appeals. Now every appeal is unjust which is not necessitated by the failure of justice. An appeal is lawful only when you are wronged ; it is not a means of wronging some one else. The appeal must be from a judicial sentence. To anticipate the sentence by an appeal unless some wrong was clearly going to be done, admits of no justification. He therefore who appeals when no such wrong threatens, obviously purposes wrong to another man, or to gain time. An appeal is not a subterfuge, but a refuge. How many have we known to appeal after defeat only that while the appeal was pending they might without let of law indulge in what is never lawful ! The permission to appeal has in some cases, we know, left men unmolested for the whole of their lives in the commission of execrable crimes, incest, for example, or adultery. How comes this about, that what ought to be the terror of villains is found protecting villainy ? How long will you pretend not to notice, or will really not heed, the murmurs of the whole earth ? How long do you mean to sleep ? How long will it be before your consideration awakes to this gigantic confusing and abusing of appeals ? They are contrary to laws human and divine, contrary to custom and established order. There is no distinction of place, degree, time, cause, or person. These frivolous, and, in most cases, useless anticipatory appeals come from all sides. Was not the Court of Appeal wont to be the special terror of malicious offenders ? At the present time with its assistance they are themselves a terror, and that to good men. The antidote is turned to poison. The change is not the work of the right hand of the Most High.

8. Good men have appeals brought against them by the bad to prevent their doing good, and in terror at the voice of your thunder they forbear. Even bishops are appealed against that they may not dare to dissolve unlawful marriages, or prohibit them. They are appealed against that they may not presume to punish in the least degree, or check rapine, theft, sacrilege, and crime of that description. They are appealed against that they may be powerless to close the sacred offices against unworthy or infamous persons, or deprive them when admitted. What remedy are you seeking to discover for this disease, so that what was devised as a remedy be not found unto death? The Lord was zealous for the house of prayer when it was made a den of robbers²; do you, his minister, disguise the fact that the refuge of the wretched has been made an arsenal of iniquity? On all sides you may see the oppressed forestalled, and those who are eager to appeal are not the wronged, but those who wish to do wrong. Here is a mystery. What is the explanation? It is for you to consider, not for me to study the matter. And do you ask why the victims of these appeals do not come to prove their innocence, and show the malice of their opponents? I will tell you what the usual answer is—‘We don’t care to be troubled for nothing. In the court there are men too ready to favour the appellants and foster appeals. If we are to give way at Rome, it is better to give way at home.’

9. I confess that I partly believe this. In this vast number of appeals, which are of daily occurrence, can you show me an appellant who has even repaid the travelling expenses of the defendant? It would be passing strange if all the appellants were, as this implies, after your investigation, found to be in the right, and those appealed against in the wrong. ‘Love righteousness’, saith the Scripture, ‘ye that be judges of the earth.’³ It is a small thing to keep righteousness, unless you love it as well. They who keep it do no more; they who love it are zealous for it. A lover of righteousness inquires for righteousness, and follows after it ; he, moreover, follows up all unrighteousness. You have nothing in common with those men who think appeals good sport. I am ashamed to quote the saying which among the heathen has become a proverb—‘ We have roused two fat stags.’ To speak more gently, there is more wit than justice in this. Do you, if you love righteousness, not encourage appeals, but tolerate them. Still, it is but little that the Churches of God gain through the righteousness of a single individual when the prevalent views are those of men differently disposed. That, however, will be discussed elsewhere, when we begin to deal with the things around you.

10. Now do not think it a waste of time to find leisure for considering how you may restore appeals, if possible, to their lawful use. If you hereupon inquire, or rather care to know, what I think, I say that as appeals are not to be despised, so neither are they to be at all unlawfully used. And I should find it hard to say which of these, in my opinion, indicates the greater insolence, were it not that it seems as though the unlawful use must of necessity induce some measure of contempt, and for this reason, because it is more injurious, it ought perhaps to be more vigorously followed up. Is it not really more injurious, bad in itself, bad in its offspring ? Is it not this unlawful use which either weakens the authority of the very law of nature, or nullifies it altogether ? Can a man receive anything better than the sacraments ? If, however, they are wrongfully used by the unworthy, or are unworthily handled, they are by no means received. They bring the greater damnation, because they are not duly reverenced. I allow that appeals are a great blessing to the world at large, as necessary as the sun itself to mortal men. In fact they are as it were a sun of righteousness, bringing to light and convicting the works of darkness. They are by all means to be cherished and upheld, but only those which are demanded of necessity, not those devised by craft and cunning. All unlawful appeals are of this description; they do not help in time of need, they only minister to iniquity. They could not fail to become contemptible. How many defendants have in answer to such appeals even abandoned their rights that they might not be worn out by a long and fruitless journey? Yet there have been more who, unable to endure the loss of their own, have shown but scant respect for these unsuitable appeals and for personages bearing great names.

11. Let me tell of a case in point. A certain man had publicly betrothed his future wife. The solemn day of marriage had arrived. All things were ready; many guests were invited; when lo! a man who coveted his neighbour's wife all at once announced his intention of appealing, on the ground that the lady had been first given to him and ought to belong to him. The bridegroom was thunderstruck; there was a dead-lock; the priest did not dare to proceed; all the preparations were thrown away; everybody went off to eat his supper at home; the bride was barred from bed and board until after the return journey from Rome. This befell a resident in Paris, a noble city of Gaul and the home of royalty. On another occasion, in the same city, a certain man became engaged and fixed the day for the wedding. Meanwhile a false report got abroad that the parties ought not to be united. The case was referred to the judgement of the Church, but without the least expectation of a decision on the appeal. There was no case, no allegation. The only object in view was to delay and frustrate the marriage. But the bridegroom, whether it was that he did not choose to make his preparations for nothing, or that he would not brook the disappointment and be so long kept from the woman he loved, either treated the appeal with contempt, or feigned ignorance of it, and went through with what he had purposed. To take a recent case, what are we to say of the extraordinary presumption of a certain young man belonging to the church at Auxerre? The holy bishop having died, the clergy, according to custom, wished to elect another; but the young man in question intervened with an appeal, and forbade anything to be done until after his return from Rome; and yet to that very appeal he laid no information. For when he saw that he was treated with contempt for appealing unreasonably, he called together such friends as he could three days after the others had made their choice, and got himself elected.

12. It is clear from these and countless other instances that the unlawful use of appeals does not arise from the contempt for them, but that the contempt of them springs from the unlawful use. See, therefore, why it is that your zeal and energy almost constantly vindicate the contempt, and throw a veil over the unlawful use. Do you wish to more completely bridle contempt? Take care that the infant growth is strangled in the very womb of its abandoned mother. And this will be done if the unlawful use meets with suitable punishment. Stop the unlawful use, and there will be no excuse for contempt. Further, when there is no excuse, audacity will be hissed off the stage. Let there be, then, no usurper of the privilege, and there will be no despiser, or very seldom. You do well in refusing to sanction such appeals, or countenance the trickery, and in leaving much of the business to those who are familiar with the details, or can quickly become so. For the easier investigation is made, and the more certain its results, the sooner will the decision be given, and the sounder will it be. What gracious condescension it is in you to thus spare so many men enormous trouble and expense! But you must take particular care in selecting those whom you trust so much. I might add many useful hints on the same subject; but I am mindful of my purpose, and, content with giving you an opportunity of making the addition, I pass to other things.