1. The Early Centuries (1st - 3rd) -- PASTORAL
a. In the early centuries of Christianity, Church courts dealt basically with two types of cases. The first type, called a "contentious" case, involved a controversy between two individual Christians. According to St. Matthew's Gospel, Jesus himself laid down the basic procedural rules to be followed in such cases:
If your brother should commit some wrong against you, go and point out his fault, but keep it between the two of you. If he listens to you, you have won your brother over. If he does not listen, summon another, so that every case may stand on the word of two or three witnesses. If he ignores them, refer it to the church. If he ignores even the church, then treat him as you would a Gentile or a tax collector. I assure you, whatever you declare bound on earth shall be held bound in heaven, and whatever you declare loosed on earth shall be held loosed in heaven.1
During the early centuries of Christianity these words of Jesus became the guiding principle of Church courts in dealing with all contentious cases.
The second type of case handled by Church courts was the disciplinary case, i.e., the case in which a crime was committed, a crime that distressed the community; and the community then felt some legal action was in order. An example of this type of case is found in I Corinthians 5 where Paul tells the Christians in Corinth that they should sit in judgment of the incestuous man and expel him from their midst.
b. The process used in both contentious and disciplinary cases was basically the same. There would be an initial attempt at conciliation and, if that proved unsuccessful, the case would then go to court. Often there was a collegiate tribunal consisting of a bishop, a priest and a deacon. The Gospel directive about the two or three witnesses was always observed but in places like Greece, Egypt and Syria local judicial traditions were followed as well.
c. Some cases heard in Church courts dealt with marital matters, like the incestuous man at Corinth, but there were no marriage cases as such, i.e., cases dealing with the question of possible invalidity. Church courts were in place and could be utilized to judge marriage nullity cases if and when they arose but it's important to note that the procedures followed in Church courts at that time were designed not for marriage cases but for contentious and disciplinary cases.

2. The Age of Constantine (4th and 5th) -- ROMAN
a. After Constantine converted, and Christianity became an approved religion with close ties to the Empire, Church courts tended to adopt more and more of the procedures found in Roman law, like for example, the petition, the citation and the appeal. Nevertheless certain local customs were still retained in various Christian centers.
b. Disciplinary cases, especially those involving heretics, were, by far, the most prevalent. The notion of marriage as being indissoluble was still not fully developed and marriage cases as we know them were still non-existent.

3. The Middle Ages (6th - 11th) -- MUDDLED
a. With the fall of the Roman Empire, the invasion of Europe by the tribes from the north and their eventual conversion to Christianity, new legal traditions were introduced into the Church, especially the Germanic traditions of trial by ordeal and trial by compurgation. Today we tend to see these Germanic traditions as primitive, and as grossly inferior to Roman law, in that Roman law attached great importance to the judge and to the judge's reasonable decisions whereas Germanic law tended to diminish the role of the judge, attaching prevailing importance instead either to magic, chance or God (in the case of ordeal) or (in the case of compurgation) to the number of people who would swear in behalf of the parties.
But the differences between Roman law and Germanic law were, in fact, much more profound and pervasive than that. On this point Harold J. Berman writes:
Law was for the peoples of Europe, in the early stages of their history, not primarily a matter of making and applying rules in order to determine guilt and fix judgment, not an instrument to separate people from one another on the basis of a set of principles, but rather a matter of holding people together, a matter of reconciliation. Law was conceived primarily as a mediating process a mode of communication, rather than primarily as a process of rule-making and decision-making.
In these respects, Germanic and other European folk law had much in common with certain Eastern legal philosophies. In the Sufi tradition of the Middle East, one of the stories told of the Mulla Nasrudin depicts him as a magistrate hearing his first case. The plaintiff argues so persuasively that Nasrudin exclaims, "I believe you are right." The clerk of the court begs him to restrain himself, since the defendant is yet to be heard. Listening to the defendant's argument, Nasrudin is again so carried away that he cries out, "I believe you are right." The clerk of the court cannot allow this. "Your honor," he says, "they cannot both be right." "I believe you are right," Nasrudin replies.
Both are right, yet both cannot be right. The answer is not to be found by asking the question, Who is right? The answer is to be found by saving the honor of both sides and thereby restoring the right relationship between them.2
In much the same way Germanic folk law was interested not so much in determining objective rights or facts as it was in bringing harmony into individual and social relationships. It was a system vastly different from Roman law, and yet during the Middle Ages both systems were used sort of side by side, in an uneasy, awkward arrangement.
b. It also bears noting that during the course of these same centuries (to complicate the matter even further) the texts of Roman law were lost, and lawyers came then to have only a fragmented knowledge of the Roman legal system. This, of course, muddled the procedural picture even further.
c. During the Middle Ages, therefore, court procedures were influenced by a wide array of legal traditions -- Roman, canonical, local and Germanic, many of which were poorly understood. And, as a result, the procedures that were actually followed in individual cases were, to a great extent, left to the discretion of the judge.
d. Perhaps there were some marriage cases heard in Church courts during this period but if so they were quite isolated and would have involved only members of the noble class. Certainly cases were brought before Church councils regarding such makers as degrees of invalidating consanguinity and affinity, and whether consummation was required for validity but marriage cases brought before local tribunals were, at best, few and far between, and little is known of court procedures as applied to marriage cases during this period.3
e. The main point is this: that in the days prior to Gratian's Decree there were many, often conflicting legal traditions influencing the courts and consequently a great deal of confusion. As a result, a "praxis paterna" developed leaving judges considerable freedom in investigating and adjudicating cases.4

4. The Early Classical Age (12th - 13th) -- RIGID
a. When, during this period, the Roman law texts themselves were rediscovered, and interpretation of them was raised to an art, and when, coincidentally, the Church's influence was solidified under Gregory VII, Roman law became, hands down, the major source for Church law and specifically for the procedural law to be followed in Church courts. A great scholarship developed in this field and, for a century or so, a period of extreme rigidity set in. Courts did a complete flip-flop. Whereas in the tenth century courts followed a "praxis paterna," by the thirteenth century, courts were following a strict "praxis canonica" which was in effect, an ecclesiastical adaptation of classical Roman law.
b. By this time, furthermore, marriage had come to be recognized first of all as indissoluble and secondly as one of the seven sacraments. During this period, therefore, it came to be widely accepted that marriage cases fell under the jurisdiction not of the civil courts but of the church courts, and there is considerable evidence during this period that marriage cases as we know them, were now being heard in the tribunals of the Church.
c. The main point is this: that during this Early Classical Age two things happened: 1) for the first time in the Church's history, cases of marriage nullity came to be heard in significant numbers and 2) the procedures followed in the courts in adjudicating those cases were highly technical and very rigid. This is the situation that prevailed throughout most of the thirteenth century.

5. The Later Classical Age (14th - 15th) -- INFORMAL
a. Very early on in the fourteenth century there was a reaction on the part of Rome to this procedural rigidity. By way of background it is useful to remember that, following the great centralization of power under such popes as Gregory Vll and Innocent III, local tribunals were competent to hear only minor cases. All major cases were reserved to the Pope. In practice, however, the Pope often delegated many of these cases back to the local tribunals. The Corpus luris Canonici contains a decretal of Pope Boniface VIII (who died in 1303) in which he instructed a local court to hear a case "sine strepitu iodicii et figura" or, as we might say, "without the pomp and circumstance of a judicial proceeding."5 This directive of Boniface VIII is the first known instance of a Pope saying, in effect, that the strict procedural law that had developed during the previous century or so might be dispensed with in a particular case.
b. Over the next few years it appears that several such dispensations were granted and in all cases the phrase "sine strepitu iodicii et figura" was used. There was, however, widespread confusion over what exactly that phrase meant so, in 1306, Pope Clement V issued the famous decretal Saepe Contingit in which he spelled out the precise meaning of the phrase. The decretal reads as follows:
It often happens that we delegate lower courts to hear cases, and in some of those cases we order those courts to proceed simply and easily and without the pomp and circumstance of a judicial proceeding. The precise meaning of these words, however, is a matter of considerable debate and there is some question therefore about how courts ought to proceed.
In the interest of settling as many of those questions as possible, we, by this decree, hereby declare as sacred and perpetual that a judge to whom we commit cases of this kind: need not necessarily demand a formal libellus or a joinder of issues; may proceed even on holidays in order to accommodate the needs of people who have been dispensed by the law; may shorten deadlines; dilatory and unnecessary appeals, and by restricting the contentions and disputes of the parties, advocates and procurators, and by limiting the number of witnesses.
A judge may not, however, abbreviate a trial by curtailing necessary proofs or legitimate defenses. Lest the truth remain concealed, furthermore, it is understood, that in commissions of this kind neither the citation nor the taking of the usual oaths of good faith and intent, and to tell the truth may ever be omitted. Also, since the pronouncement of the judge ought to be based on the original petition, the plaintiff's position, and that of the respondent if he or she counter sues, should be made at the beginning of the trial either in writing or orally and should always be included in the acts. This is important for three reasons: so that the investigation may be based on those petitions, so that fuller certitude may be had, and so that the issue may be more clearly defined. And because traditional judicial practice has allowed the use of questionnaires, based on the statements of the parties, for the purpose of expediting the proceedings, as well as interrogatories for the purpose of obtaining clearer proofs, we, wishing to follow this practice, hereby declare that any judge deputed by us (unless he proceeds otherwise at the wish of the parties) may establish a deadline for submitting these questionnaires and interrogatories as well as for all other acts and defenses which the parties wish to be used in the case. After these articles have been submitted the judge may then assign an appropriate date for producing witnesses, with the understanding, however, that should the case be interrupted, those witnesses, and documents as well, may be produced at a later date. The judge shall also question the parties either at their request or ex officio whenever equity recommends this.
Finally the judge, either standing or sitting, as he pleases, will hand down the written definitive sentence (with both parties having been cited for this action though not peremptorily) based on the petition, the proofs and other pleadings in the case. This he shall do even if, in his judgment, the evidence is not concluded.
All of which is also applicable to all those cases in which, through one or another of our constitutions, it is allowed that a judge may proceed simply and easily and without the pomp and circumstance of a j judicial proceeding. But if, in these cases, the solemn judicial order is, in fact, observed, in whole or in part, with the parties not disagreeing, the process will not, on that account, be either void or voidable.6
c. Within another five years it had become apparent that this less formal procedure (which came to be called the Clementine procedure) was working quite well. Pope Clement therefore decided that, rather than give dispensations for its use on an ad hoc basis, he would grant a general permission for all courts to use this informal procedure in certain types of cases (which, in fact, included most cases). Clement did this in 1311 in his decretal Dispendiosam, which reads as follows:
In the interest of reducing the lengthy delays in court trials which sometimes result, as evidence has shown, from a scrupulous application of the judicial process to individual cases, we hereby decree that, regarding not only future cases but present cases as well and even those cases pending appeal, a court may proceed simply and easily and without the pomp and circumstance of a judicial proceeding in the following cases: those regarding elections, postulations, provisions, dignities, personates, offices, canonicates, revenues or any ecclesiastical benefices, the exacting of tithes (including the possibility, after a proper warning, of coercing payment by ecclesiastical censure from those who are in arrears) and finally marriage and usury cases and all those touching
on them in any way.7
d. From the year 1311 on, then, practically all marriage cases were heard not by the formal process but by the Clementine or informal process. Indeed, at some times and in some places even the Clementine process was not followed but something less formal and judicial than that.

6. The Tridentine and Post Tridentine Age (16th - 19th) -- CENTRALIZED
a. By the time of the Council of Trent (1563) marriage cases were, in some places, being heard by deans and archdeacons, sometimes without following a judicial process. The Council of Trent ordered that, in the future, all marriage cases would be heard only at the diocesan level, and, in all cases, the judicial procedure (not necessarily the formal but at least the informal or Clementine judicial procedure) should be followed.8
b. Abuses, however, persisted and, in an effort to curb them, Pope Benedict XIV issued, on November 3, 1741, his famous constitution Dei miseratione.9 Benedict was particularly upset by the facility with which annulments were being granted in his day. Often times the respondent would not appear at the trial at all, so there would be no one to defend the marriage (there was, in those days, no one designated as a defender of the bond). Sometimes both parties would appear, but either the respondent would be in collusion with the petitioner, or he or she would simply not be interested in appealing higher and the marriage would then be declared null after a single hearing (there was, in those days, no mandatory appeal). As a result, according to Benedict, men and women alike were having their first, second, and even third marriages declared null and were, with the blessing of the Church, blithely entering still another.
Dei miseratione attempted to put an end to all this. First it required that every diocese appoint a defender of marriage whose presence in every trial would be absolutely mandatory and whose duty it would be to defend the bond. Secondly, it required the defender to appeal every first instance affirmative decision.
It bears noting, however, that marriage cases were heard in those days not by three judges but by one. This, indeed, would remain the law of the Church until the 1917 code.
It further bears noting that the scandalous situation that existed prior to Dei miseratione seems to have been due at least partly to the fact that there was, at the time, no process in Church courts that was specifically designed for the hearing of marriage cases. One of Benedict's principal contributions, therefore, was that, in introducing the office of defensor matrimonii and the notion of mandatory appeal, he was, for the first time, adding to the procedural law of the Church elements that referred specifically to marriage cases. Predictably it resulted in a significant improvement in the system.
c. In 1840 the Congregation of the Council issued a new Instruction, Cum moneat,10 designed to reinforce, clarify and amplify Dei miseratione. The United States, however, was still mission territory and in this country, therefore, marriage cases were, at least until 1884, still being settled in the rectory with no judicial formalities whatsoever.
d. In 1884 the Congregation for the Propagation of the Faith issued for this country the Instruction Causae Matrimoniales11 which, in effect, required that all marriage cases be heard by the diocesan tribunal using the Clementine process along with the adjustments required by Dei miseratione (i.e., the presence of a defender and a mandatory appeal of an affirmative decision). Causae Matrimoniales was the last significant document pertinent to marriage trials prior to the codification in 1917 of the Church's law.

7. The Age of the Codes (20th) -- RIGID
a. By the turn of the century the ordinary process had lapsed altogether into desuetude, and only the summary process was being used, in marriage cases and almost all other types of cases as well.
b. In their pre-Code manuals, Lega and Wernz both devoted brief sections to the special procedures followed in marriage cases. Lega was satisfied with simply reprinting Causae Matrimoniales, noting that it was practically the same as previous instructions issued for the Oriental Churches and for Austria. Wernz, on the other hand, wrote his own treatment on the procedures to be followed in marriage cases, in which he commented on such matters as the right to petition for an annulment, the competent judge (marriage cases, remember, were heard by a single judge) suitable proofs, the involvement of the defender and the mandatory appeal of an affirmative decision.
c. The 1917 Code made a kind of amalgam of the summary process and the old ordinary process, thereby making the process more formal than it had been in centuries. Among other things, it required, in C. 1576 1, that all marriage nullity cases be heard by a college of three judges "with every contrary custom being reprobated and every contrary privilege revoked." But, like the pre-Code authors, it also devoted a separate section, namely, canons 1960-1992,to marriage trials in particular, in which it treated briefly the predictable issues of competence, court personnel, the right to petition, proofs, publication, the conclusion in causa, the sentence, the appeal, and, finally, certain clear cases, like prior bond, that could be proved by document and could therefore be handled informally.
d. By 1936 the Holy See, realizing that around the world very few marriage cases were being handled judicially by local tribunals, concluded that the thirty-three canons of the 1917 Code (canons 1960-1992) devoted specifically to marriage cases, were not sufficient to aid the local judge in applying the canons on trials in general (canons 1552-1924) to marriage cases. Accordingly, on August 15, 1936, the Holy See issued a new Instruction, Provida mater, which consisted of two hundred forty articles that attempted, in effect, to rewrite general procedure as it might apply to marriage cases. Provida mater was a valiant and, no doubt, well-intentioned effort to assist local judges, but the rigidity and complexity of the Instruction seemed to discourage judges even more, and thousands of bona fide marriage cases continued to go unheard. In the United States, for example, where, by the late 1960s, there were an estimated five million divorced Catholics, only a few hundred first instance affirmative decisions were being given each year.
e. In an effort to correct this situation, the Canon Law Society of America endorsed, at its annual meeting in 1968, a simple set of norms, called the American Procedural Norms, with the request that the National Conference of Catholic Bishops propose them to Rome for approval. Approval was given, effective July 1, 1970, first for a three-year experimental period, then in 1973 for one more year, and finally in 1974, until the new procedural law for the Church universal would be promulgated. The aim of the American Procedural Norms was, on the one hand, to provide adequate defense of the marriage bond and thus avoid the scandalous sort of annulment that existed before Dei miseratione, but, on the other hand, to provide to tribunals a procedure that could be carried out "simpliciter et de plano, ac sine strepitu iudicii et figura," and could thus enable them to give a hearing to the many thousands of people with legitimate grounds of annulment. The principal features of the American Procedural Norms were the recognition of the petitioner's residence as a source of competence, trial by a single judge, discretionary appeal by the defender. The American Procedural Norms were dramatically successful. By the late 1970s, thirty thousand annulments a year were being granted, judicially and judiciously, by United States tribunals. Although that figure was still only one-half of one percent of the number of divorced Catholics in the country (six million by that time), the American Procedural Norms were, nevertheless, of benefit to a great many people.
f. Americans were not the only ones interested in simplified procedures. There was considerable interest around the world in providing for a more expeditious handling of marriage cases, and on March 28, 1971, Pope Paul VI issued, for the universal Church, the Apostolic Letter Causas matrimoniales which was not as liberal in its provisions as the American Procedural Norms, but which did modify the prescriptions of the 1917 Code in the areas of competence, the number of judges, the use of lay people, and the appellate procedures.
By this time, of course, the work of revising the 1917 Code, specifically its procedural law, was well under way and when the 1976 schema on procedural law appeared, it contained, as was expected, the modifications introduced by Causas matrimoniales. Most of these have, in turn, been incorporated into the 1983 Code.
g. The 1983 Code, however, still requires that marriage cases be processed in accord with procedural rules that were designed for contentious cases. This unfortunate and apparently artificial arrangement, which seems to favor the system over the needs of people, prevents, in the opinion of this author, Book VII of the 1983 Code (unlike the Code as a whole) from moving on to Stage Eight which would be characterized as PASTORAL.

ENDNOTES
1. Mt 18: 15-18.
2. Harold J. Berman, Law and Revolution (Cambridge, Harvard University Press, 1983), p. 78.
3. George H. Joyce, Christian Marriage (London, Sheed and Ward, 1933) pp. 214-236.
4. Charles Lefebvre "De ludicio Reddendo in Ecclesia (Lineamenta Historica)," Monitor Ecclesiasticus 1972, II-III, p.228.
5. V1Á, 1, 6, 43.
6. Clem. V, 11, 2.
7. Clem. II, 1, 2.
8. Session XXIV, ch. 20.
9. Fontes I, n. 318, 695-701.
10. Fontes VI, n. 4069, 345-350.
11. Fontes VII, n. 4901, 479-492.
12. CLD 2, 471-529.