Catholic Encyclopedia (1913)/Contumacy (in Canon Law)

by James H. Driscoll

Contumacy, or contempt of court, is an obstinate disobedience of the lawful orders of a court. Simple disobedience does not constitute contumacy. Such crime springs only from unequivocal and stubborn resistance to the reiterated or peremptory orders of a legitimate court, and implies contempt or denial of its authority. The general law of the Church demands that the citation, or order to appear, be repeated three times (in the United States twice) before proceedings declaratory of contumacy take place. A peremptory citation, stating that the one replaces the three, satisfies the law. Contumacy may arise not only from disobedience to the citation proper, but also from contempt of any order of a lawful court. Contumacy is commonly divided into true and presumptive. True contumacy takes place when it is certain that the citation was served, and the defendant without just cause fails to obey the terms of such citation. Presumptive contumacy occurs when there is a strong presumption, though it is not certain, that the citation was served. The law holds this presumption equivalent to a moral certitude of service of citation. The defendant becomes guilty of contumacy if, when lawfully cited, he fails to appear before the judge, or if he secludes himself, or in any way prevents the service of citation. The plaintiff incurs the guilt of contumacy by failure to appear before the court at the specified time. And the defendant or plaintiff may be proceeded against on the charge of contempt, if either rashly withdraws from the trial, or disobeys a special precept of the judge, or refuses to answer the charges of the other party. A witness becomes guilty of contumacy by disobeying the summons or by refusal to testify in the cause at issue.

All causes excusing appearance in court exempt from contempt of court. The following, among others, produce such effects:

• (1) ill-health;

• (2) absence on public affairs;

• (3) summons to a higher court;

• (4) inclement weather;

• (5) unsafety of place to which cited.

These and like causes, if known to the judge, render null and void any sentence pronounced by him in such circumstances. But if they be unknown to the judge at the time of sentence, the condemned, on motion, must be reinstated in the position held by him prior to the sentence. Contumacy should never be held equivalent to a juridical confession of guilt. It cannot therefore dispense with the trial, but only makes it lawful to proceed in the absence of the party guilty of contumacy as though he were present (Third Plenary Council of Baltimore, no. 313). Contempt of court, being an act of resistance to legitimate authority, is a crime, and therefore punishable. The chief penalties are:

• (1) The trial proceeds in the absence of the contumacious person, and presumably to his detriment;

• (2) presumption of guilt, but not sufficient for conviction;

• (3) a pecuniary fine at the discretion of the judge;

• (4) suspension;

• (5) excommunication may be inflicted, and if the contumacious party be not absolved within one year he may be proceeded against as suspected of heresy (Council of Trent, Sess. XXV, ch. iii de Ref.);

• (6) loss of the right of appeal from a definitive sentence, in all cases of true contumacy.

Presumptive contumacy does not carry this penalty. Before inflicting penalties the guilt of contumacy must be established by legal proof. The accused must be cited to answer the charge of contumacy, which must be prosecuted according to the procedure established and laid down in the law. SANTI-LEITNER, Prœlectiones Juris Canonici (New York, 1905); SMITH, Ecclesiastical Trials (New York, 1887), II, 1010-1025; BAART, Legal Formulary (New York, 1898). 324-330; FERRARIS, Prompta Bibliotheca, s. v.; ANDRÉ-WAGNER, Dict. de droit can. (3rd ed., Paris, 1901), I, 563; TAUNTON, The Law of the Church (London, 1906). s. v.

James H. Driscoll.