Legal Dissertation on the Abstinence of Natural Law from the Fallacious Rules of the Putative Summary Process

cess lacking a definitive sentence, he calls it a tree without fruit, adding also a penalty: therefore, let it be cut down and cast into the fire. For thus, most acts after various years would be found in the fire as fruits that had not yet emerged, having been granted. Indeed, he who would treat all the trees of the Glossators in such a way would not easily incur the penalty established regarding the Sycamore tree in the Law: "pen.", Digest, "de Extraordinariis criminibus".

§. 8. In the same way, a perpetual confusion arose in other matters primarily touching upon the process, such as citations, contumacy, proofs, and so forth, namely once another mode of proceeding was accepted, drawing its origin from the various customs of the peoples who had held Italy in their possession up to that time. And nevertheless, in cases involving this matter where doubt arose, a decision had to be sought from the principles of Roman law. Through such confusion, so many and such diverse rules insinuated themselves into the process, and were established by every means by the Clergy—the interpreter of laws, whose interest it was, together with the Pope, to weary the laity with long-standing processes—and were subsequently corroborated by the depravity of the courts, so that whether the process is summary or ordinary, it becomes the same thing, as we shall soon say further. A summary process is, or is rather said to be, one in which one proceeds with the veil lifted, that is, it ought to be, without observing the rules of the Ordinary process. Its various causes are commonly narrated, in which it is said that one proceeds quickly either for the sake of public health (as in cases of tributes and the Inquisition), or for the quality or favor of the persons (such as merchants, widows, or churches), or because the matter does not suffer delay (as in cases of alimony or burial), or because of the small degree of prejudice and ease of reparation. B. Dn. Brunn distributes these processes into four such classes in Processus Civilis, Ch. I, n. 22. However, it pleased others to divide these causes into more by enumerating cases and examples of the summary process, twenty of which are provided by Afinius in Processus Civilis, Part I, § 3, Ch. 30, through the whole.

§. 9. But in order to weigh the matter more deeply, it could immediately seem that an injury is being done to the rules of the summary process, which one can hardly deny are based on supreme equity, both regarding the common rules and those proper to this or that specific summary process. As far as the common ones are concerned, the natural equity that must not be denied to the rules becomes immediately visible, which are primarily: that it should proceed simply and plainly without the noise and solemn figure of the judgment, not observing the order of the process prescribed by positive law, but looking only to the truth of the fact. Thus, there is no need for a libel, nor for the contestation of the suit, nor is the solemnity of holidays—established for human needs—attended to, nor are delays, and all exceptions and appeals are admitted indiscriminately, as Carpzovius reports these common rules from Gailius, Ummius, Rittershusius, and others in Processus Juridicus, Vol. 1, art. 1, n. 16 & 17. But how specious these rules are, even if they seem easily applicable to all summary causes and common, and how they fail—along with those proper to certain processes specifically, which ought to be even more extraordinary—will become further evident from what follows.