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

§. 10. And indeed, it has already been observed by others that in the higher courts and supreme tribunals, the difference between a summary and an ordinary process is plainly ignored, and that only a shadow of it is found in the lower ones see Dn. Ludovicus in Processus Civilis, Ch. 7, § 11. But when cases reach the higher judges from the lower ones by way of appeal, and even in those cases which reject appeal, it cannot be avoided by some effect, it must be seen whether this is not the only thing in the case: that the judge does not have the power of his office, but must proceed according to the prescribed rules, and that, therefore, by the very fact of the insufficiency of those rules—or rather, their necessary and inevitable fallaciousness—the whole doctrine cannot achieve its effect. To examine this, the difference which exists between an ordinary and a summary process, and which is founded in the very texts of the law, must be properly investigated, since, if it were to cease, we would perhaps obtain our goal more easily. But the source of this difference is commonly sought partly in the civil laws and partly in Canon law. As for the civil law, it is brought forward in Digest 3.1, "scil. sciendum"; 9.2 "iudex"; Digest "ad exhibendum"; Law 11, § 6, "ad Legem Juliam de adulterii"; Law 9, § 3, Digest "de Officio Processus". But we have already said above that Roman law does not at all correspond to the doctrine of process; however, our civil law, which in this place coincides primarily with Canon law, is good. Hence, one must look to the texts of this law, and indeed let the Chapter "Saepe contingit" of the "Verborum Significatione" in the Clementines be brought forward. From it, besides the said rules, it is still taught thus: that in a summary process the judge should amputate the material of delays, make the suit as short as he can, repelling dilatory and frustrating exceptions and appeals, and restraining the contentions and quarrels of the parties, advocates, and procurators, and the superfluous multitude of witnesses.