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

cess, as mentioned, neither the Prince nor even the Judge can neglect, it is added by reason of Law 2, § 16, & 16, Digest "ne quid in loco publico"; Law 4, Code "de emancipatione liberorum"; see Ant. Faber in the Code, Book 6, title 5, Def. 2, n. 21, which is true in itself, even if the laws are not alleged.

§. 12. These are the stronger rules, which are commonly taught to be of the Law of Nature to such an extent that they cannot be omitted or neglected, as if they were essential. But let us see whether they effectively differ within the limits of the ordinary process. And first of all, it must be noted that the cited illustration of Carpzovius regarding the process of God Himself against Adam has not been applied very correctly. For the natural elements of the process by no means required a sentence there, nor was there a necessity for using them. What good would it have done to prove against Adam, when the judge was omniscient? Therefore, certainly, there was no need to hear exceptions, which that judge knew better than by the report of the accused. Nor is the calling to judgment to be elicited from the words "Where are you?", for the judgment, by reason of God, is everywhere. Furthermore, the word "accusation" is plainly impertinent, as it is always done by another. But as far as the natural elements of the process itself are concerned, regarding our goal, three things primarily should be noted: namely, that not all things which are touted as such are of the Law of Nature; then, that they do not effectively establish a difference between an ordinary and a summary process; and finally, that because of so many and such great exceptions admitted by the same law and depending on it—which destroy the rules themselves—the said rules always remain as fallacious as the others that are admitted in the ordinary process, and that, therefore, because of so many incidents, true and sufficient limits are not placed, and they positively do not pertain at all to the Law of Nature.

§. 13. And indeed, first, we admit that there is, in a way, such a nature of the business in processes that the fact should be narrated, but hypothetically and according to the circumstance—namely, insofar as the narration of the fact is joined and convenient with the proof that is either present or to be determined immediately. We name this the base and the only true and genuine foundation of the Law of Nature in the whole process, toward which the single scope of the judgment must be formed. For all other things, as will be said next, pertain to the sole discretion of the judge, as natural reason dictates. But regarding the "claim," we flatly deny that it is of the Law of Nature, nor can it be omitted while saving the substance. For once the fact is narrated and proven, what else is the judge's task than to condemn or absolve? The "claim," however, pertains to decorum, even according to the rule itself: Narrate the fact; the court knows the law. For the claim is always added to the conclusion; the conclusion pertains to the law, and the application of this pertains to the judge; therefore, also the application of the contents of the claim pertains to him. Hence, it is not surprising that such empty questions occur here, which disturb the rules of the process rather than anything else—namely, regarding the obscurity or generality of the claim—solely because of that absurd postulate that the sentence must be in conformity with the claim. This is the same as saying that because the plaintiff was inept or absurd in claiming, the judge also must be such in judging, or must simply tear that libel to shreds. Hence, the absurdity of the "salutary clause"—that herb betony a plant historically considered a panacea which heals all defects—can also be revealed. But this healing would not be necessary if the disease were not feigned and Molierian in nature; for it was, or ought to have been, the office of the judge to judge from equity and good faith, and to apply the law to the fact already narrated, provided that it is sufficiently proven.