N
■
Htbrarp
of tije
tHnibErs'itP of Wisconsin
Googl
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
-
^le
Original from
UNIVERSITY OF WISCONSIN
10. A IT' a
^ • — -i
A COMMENTARY ON
THE NEW
CODE OF CANON LAW
" • t
By THE REV. P. CHAS. AUGUSTINE^O.S.B., D.D.
Professor of Carton Laiv
■
Volume I
Introduction and General Rules (can. 1-86)
SECOND EDITION
B. HERDER BOOK CO.
17 South Broadway. St. Louis, Ma
AND
68 Great Russell St. London-, W. C
<
1918
* ( iMuiL' Original from
ilHJglt. UNIVERSITY OF WISCONSIN
Cum Permits* Superior urn
NIHIL OB ST AT
Sti. Ludovici, die 31 Moii, 1918
F. G. Holweck,
Censor Librorum.
IMPRIMATUR
SH. Ludovici, die 1 Junii, 1918
^Joannes I. Glennon,
Archiepiscopus
Sti Ludovici.
Copyright, 1918
h
Joseph Gummersbach
All rights reserved
Printed in U. S. A.
VAIL-BALLOU COMPANY
■ IMHAMTON AND XEW VM(
oogle
Original from
UNIVERSITY OF WISCONSIN
CSL 587677
>
ha
TO
THE BELOVED HIERARCH OF OUR DIOCESE
THE RT. REV. MAURICE FRANCIS BURKE, D.D.
BISHOP OF ST JOSEPH, MO.
THIS VOLUME IS RESPECTFULLY DEDICATED
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
;Ie
Original from
UNIVERSITY OF WI5CGNSI
FOREWORD
Aug. 7th, 1917, the S. Congregation on Seminaries and
Studies issued a decree which imposes on teachers of
Canon Law the task of explaining the new Code, not
only synthetically, but also analytically, by closely fol-
lowing the order and text of the Code itself. The de-
cree also calls for a historical survey, whenever neces-
sary and opportune, of the respective canons. This pre-
cisely has been the guiding line along which the writer
taught Canon Law at the Benedictine University in Rome
for nine years (1906-1915), until the European conflict
closed our international College. Most of that time,
therefore, fell within the period of the present codifica-
tion.
We do not intend to make an apology for the commen-
tary now offered to the clergy and all interested in the
study of ecclesiastic law. The commentary shall be
as brief as the matter permits and shall not be encum-
bered with moralizing reflections. The reader should
remember that the commentary is intended for countries
where the English language prevails, and hence for such
countries as do not reflect all the customs and laws in
vogue and practice elsewhere. Wherefore certain parts
of the Code (e. g., cathedral chapters, jus patronatus,
benefices) will not be treated in extenso. We shall en-
deavor to render the text in a verbal, or at least sub-
stantially faithful, transcription, no official English text
having reached us. For the rest, the old saw, " Bis dat
qui cito dat," has quickened this edition.
The Author.
Conception, Mo.
jle
Original fro rn
UNIVERSITY OF WISCONSIN
G I Originalfrom
UOglC UNIVERSITY 0FWI5C0NSIN
TABLE OF CONTENTS
PAGE
FOREWORD i
PART I. INTRODUCTION x
Ch. I. Name and Definition of Law in General and
Canon Law in Particular x
Ch. II. The Science of Canon Law and Its Impor-
tance 6
a
Ch. III. The Sources of Canon Law 9
Sect. i. The " Fontes Essendi " 10
Sect. 2. The " Fontes Cognoscendi " 12
Art. i. Holy Writ 12
Art. 2. Decrees of the Roman Pontiffs 13
Art. 3. The Canons of Councils 16
Art. 4. The Unwritten Law 17
Ch. IV. History of the Sources and Literature op
Canon Law 18
Sect. i. First Period (to about 1150) 20
Art. 1. Occidental Collections 21
Art. 2. Spurious Collections of the Ninth Century . 23
The Pseudo-Isidorian Decretals 24
Art. 3. Collections of the Tenth and Eleventh Cen-
turies 27
a
Sect. 2. Second Period (to the Council of Trent) . . 30
Art. 1. The Decretum Magistri Gratiani .... 30
Art. 2. Decretales Gregorii IX (1234) 36
Art. 3. Decretales Bonifacii VIII (1208) .... .38
Art. 4. Clementinae (1317) 40
Art. 5. Extravagantes 42
Art. 6. The "Corpus Juris Canon ici " 43
Sect. 3. Sources of the Last Period 46
Study of Canon Law 49
Sect. 4. The Glossators 52
jle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CONTENTS
PAGE
Sect. 5. Post-Tridentine Literature 56
1. Historico Critical Writings 57
2. Commentaries -57
3. Manuals 58
Ch. V. Old and New Law .60
CONSTITUTION " PROVIDENTISSIMA" OF BENE-
DICT XV, PROMULGATING THE NEW CODE . . 64
PROFESSION OF FAITH PRESCRIBED BY THE NEW
CODE 69
PART n. COMMENTARY 72
Book I. General Rules 72
Title I. On Ecclesiastical Laws 80
Definition and Nature 80
Legislators of the Church 82
Obligation of Laws 83
Interpretation of Laws <M
Cessation of Laws 10a
Title II. On Custom 106
Abolition of Customs 1x3
Title III. Ox the Reckoning of Time 115
Title IV. On Rescripts 124
Date and Requisites 127
The Clause "Motu Proprio" 133
Mistakes in Rescripts 135
Preference, Interpretation, and Presentation .... 136
The Office of Executor 141
Recall and Cessation of Rescripts 148
Title V. On Privileges 152
Historical Note 152
Division of Privileges 153
Acquisition of Privileges 154
Faculties 159
Interpretation of Privileges 162
Loss of Privileges 164
Titli VI. On Dispensations 173
oogle
C^ ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
N
■
'.•",
THE NEW CODE OF
CANON LAW
PART I
INTRODUCTION
CHAPTER I
NAME AND DEFINITION OF LAW IN GENERAL AND CANON
LAW IN PARTICULAR
The Latin word jus ( from jurare, to swear, or jussum,
command) has a double meaning or sense: a) subjec-
tively, it signifies right, or " the moral power to have,
to do, or to require something from another (facultas
tnoralis inviolabilis aliquid habendi, agendi, extgendi), as
we say to give to every one his due ( suum cuique) ; b) in
the objective sense, jus denotes norm or law either in the
singular or plural (complex of laws), for instance, the
law of celibacy, civil law. canon law. This latter mean-
ing is attached to the "eternal law," since "the very idea
of government of things in God the Ruler of the universe
has the nature of a law/' l and every law, divine or
human, is but an irradiance from the eternal law, as all
human laws bear the character of laws only in as far as
they approach, more or less, this prototype.
Canon Law (jus canonicum, derived from the Greek
Ktiwv, i. e. norm or rule), as a technical term occurs since
l S. Thtol, I-n, q. 9U »■ i *
>gle
Original fro m
UNIVERSITY OF WISCONSIN
2 INTRODUCTION
St
the twelfth century,1 this nomenclature being exclusively
reserved for the laws of the Church, whilst lex (yapo?)
was applied to civil laws. Consequently the interpreters
of ecclesiastical law were called canonistae, those of civil
law, legistae.
Definition. — Canon Law may therefore be denned as
" the complex of rules which direcl the exterior order of
the Church to its proper end."
Explanation. — a) In this definition the laws of the
entire Church only are, per se, considered, viz, those
laws which touch upon the whole body as such and em-
anate from the supreme authority (jus commune).
Hence laws made for a particular portion of the Church
or its members are outside our subject except in so
far as they form part and parcel of the body of common
law. However, since these particular or special rules
need the explicit or implicit consent of the supreme law-
giver, and rest on the interpretation of law in general,
it is evident that even these particular laws must, to
some extent at least, be taken into consideration.
b) The purpose of Canon Law, as of all law prop-
erly so called, is the establishment and maintenance
of exterior order. The Church forms an organized
body which has its special and proper functions.
In a certain sense, she is a body politic with a working to
the outside. Hence her laws, either in regard to the
hierarchic ramifications, or in relation of member to
a
member, are concerned not directly with internal acts
(" de internis non judicat praetor"), but with the public
or exterior order of the Church at large (finis proximus
juris canonici),
c) However, the end of the Church being mainly
2 5immo Stephani Tvrnactntis, apud Schulte, Gcsch. d. Quellm «. Lit. d.
can. Rtchts, 1875, I, 29.
'le
k ,1,., Original from
UNIVERSITY OF WISCONSIN
N
CANON LAW 3
spiritual, I. e.t of the supernatural order, it is plain that
Canon Law must partake of that order, and hence tend,
a potiori, to a supernatural end. Yet, it is perfectly
true what has been said above (b), that ecclesiastical
laws are principally intended to maintain the public
order, since the Church is not merely a supernatural and
an invisible organization, but a visible body consisting of
men, not of angels.
Besides the time-honored nomenclature " Canon Law,"
i. e.M the law made up chiefly of canons, there are other
names: a) jus ecclesiasticum, inasmuch as it embraces
the whole range of Church legislation contained in the
canons of councils as well as in the decrees and decretals
of the popes and in unwritten laws, i. e., legitimate cus-
toms; b) jus pontificium (a term used v. g. by Giraldi),
in as far as the supreme and chief source of Church legis-
lation is the Sovereign Pontiff; c) jus sacrum, in as far
as its main author is Jesus Christ and it treats of sacred
persons and things.
Division of Canon Law. — a) By reason of its ori-
gin, Canon Law is either divine or human. Divine is
that part of it which owes its origin to Christ or the
Apostles, in as far as the latter enacted laws by divine
inspiration, (which is not, however, to be identified with
Scripture inspiration) or promulgated them as divine
norms, v. g.t the hierarchy, the matter and form of the sac-
raments (James 5, 14), the privilegium Paulinum. Hu-
man is that portion of the Canon Law which has merely
human authority for its existence; thus the Apostolic
decrees (Acts XV) are of human authority though es-
tablished by Apostles ; purely human laws, too, are those
passed by councils, popes, and bishops, unless, indeed,
they are implicitly contained in revelation, or are merely
Grwu-il^ Original from
OO^IL UNIVERSITY 0FWI5C0NSIN
■
4 INTRODUCTION
declarations, specifications, or modifications of divine or
natural law. In the latter case they belong to the class of
divine laws.
b) By reason of its obligatory force, either personally
or territorially, Canon Law is; a) either general, when
it binds all members of the Church, or special, when it
binds only some members or a class of members, c. g.,
the clergy, regulars; ft) either universal, when it is in-
cumbent on the entire Church as far as it is spread, or
particular, when it affects only a certain portion of the
Church, as a province or diocese. Under this heading
belongs the difference between the law prevailing in the
Oriental* and that binding the Occidental Church, y)
By reason of its promulgation we speak of written or un-
written law, or custom (consuetudo).
d) By reason of time, Canon Law is distributed into
various epochs: o) jus antiquum, or old law, from the
beginning of the Church up to Gratian's Dccretum { about
1 1 50) ; ft) jus novum, or new law, up to the Tridentine
Council (1545-63); y) jus novissitnum, or modern law,
up to our time. It remains to be seen whether the New
Code will constitute a new epoch.
e) By reason of its matter, Canon, like civil law, may
be classified into public and private law. Public law
is concerned with the Church as a society, its government
and external relations; private law with the rights of the
members and their mutual relations.4
This latter distinction is rejected by most of the Ger-
man canonists, v. g.t Philips, v. Scherer, Sagmiiller, but
defended by Roman authors. If we subsume under pub-
lic law the constitutional law proper, together with that
8 Concerning the laws binding this the Codex Juris Can.
Church see the Collectanea Prop. * Schenkl, Institutionts luris Eccl.,
Fid., 1907* II. n. 1578; can. I of 1853. I. S 38, p. 60.
jle
v ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON LAW S
governing the Church's external relations, we believe
there is nothing unwarranted in this division. Private
law would then embrace chiefly the administrative por-
tion of the laws. Whether we substitute the terms " ex-
ternal " and " internal " is of little importance.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
CHAPTER II
THE SCIENCE OF CANON LAW AND ITS IMPORTANCE
Abstracting for a moment from the historical resources,
which partly date back to the founder of the Church and
partly owe their origin to the natural development of the
living organism, Canon Law as a distinct science owes its
existence and splendor chiefly to the Benedictine monk,
Gratian, in the middle of the twelfth century, when can-
onists— and also legists — commenced to cultivate ec-
clesiastical law systematically.
If science means " a demonstrative syllogism " or con-
clusions drawn from premises, it is evident that single
laws form the stock and store out of which deductions
are made, and which, in their turn, may become new laws
and new bases for mental operations (e. g., exemption).
Science demands a knowledge not only of the several ex-
isting laws, but of their systematic and pragmatic put-
ting together. Canonical science must be analytical as
well as synthetic, and should be based upon critical and
historical researches. And in this latter regard some
progress, mainly due to the two brothers Ballerini and
to German scholars, has been made.
Preeminently, however, law is practical, and hence
the canonist should not only know the law, but also be
able to apply it to concrete cases, such as occur daily.
This is the function of what is called jurisprudence (juris-
6
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
IMPORTANCE OF CANON LAW 7
prudentia sacra), or "the habit (habitus) of knowing,
interpreting and applying the laws." 1
As to the necessity or importance of this systematic-
practical science, it is not too much to say that the
" watchmen on Sion's tower," j, e. the prelates, are obliged
to possess a more elaborate and extensive knowledge of
ecclesiastical laws than is required of the lower clergy.
For the prelates should be especially well versed as to
the rights of the Church in regard to civil power, and
should know the laws regulating their own attitude to-
wards the clergy and the laity. This observation holds
good also in regard to the officials of episcopal courts.
The priests, too, are bound in conscience to obtain a
sufficient knowledge of Canon Law to enable them to
discharge their duties as pastors of souls and to defend
the rights of the Church and their own position. It is a
sad saw, often repeated, " What's the use of Canon Law,
the prelate is Canon Law." This saying is not only
offensive to the prelates, who are thus represented as
arbitrary law-makers and expounders, but betrays a
lack of reverence for a noble, time-honored science, and
degrades those who utter that unpriestly sentiment to
the level of cowards or sluggards. Let them rather
hear Gratian : " Ignorantia mater cunctorum errorum
maxime in sacerdotibus Dei vitanda est. Sciant ergo sa-
cerdotes scripturas sacras et canones;" and again:
" Nulli sacerdotum liceat canones ignotare." 2
In order to make canonical science solid, extensive, and
systematic, the canonist, and especially the professor of
Canon Law, should be conversant not only with dogmatic
and moral theology, but also with Church history and
civil law. History will render the study of Canon Law
i Schenld, op. tit, 41. 2C. 4. Dirt. 38.
p
od by GoOgle
% ,.] , Original from
UNIVERSITY OF WISCONSIN
8 INTRODUCTION
more agreeable, give the student living pictures of the
past, and help him to understand many laws otherwise
barely intelligible. Civil Law, more particularly the
old Corpus Juris Civilis, will furnish the key to a great
many terms, v. g., in civil and criminal procedure, and
show the connection existing between civil and religious
law. Besides, the priest being a citizen of the State, and,
we may justly say, a citizen of higher standing than most
others, it appears but just that, even in this respect, his
" lips shall keep knowledge, and they shall seek the law
at his mouth." 8 Therefore, in this country, for instance,
the Constitution should not be a sealed book to priests,
nor should they be strangers to the laws governing mar-
riage, contracts, last will, and labor.
S Mai. II, 7,
>Ie
, I > Original from
UNIVERSITY OF WISCONSIN
CHAPTER III
THE SOURCES OF CANON LAW
The term source or fountain of Canon Law (fons juris
canonici) may be taken in a twofold sense : a) as the
formal cause of the existence of a law, and in this sense
we speak of the fontes essendi of Canon Law or lawgiv-
ers; b) as the material channel through which laws are
handed down and made known, and in this sense the
sources are styled fontes cognoscendi, or depositaries,
like sources of history.
| Original from
l008IL UNIVERSITY 0FWI5C0NSIN
"
SECTION i
THE " FONTES E5SENDI "
a
Taking for granted that the Church is a complete and
autonomous society (societas pcrfecta), she must evi-
dently possess legislative power, i. e., the faculty of
enacting laws. For " a law is nothing else than an or-
dinance of reason for the common good, made by him
who has care of the community, and promulgated." l
Therefore, every law must proceed from the legitimate
power residing in that community for which the law is
given. Now, the Church Catholic being founded by our
Lord and perpetuated by the Apostles and their lawful
successors, among whom the Roman Pontiff holds not
only an honorary but also a jurisdictional supremacy, the
following must be acknowledged as ecclesiastical law-
givers:
i. Christ our Lord, the original source of divine laws
laid down chiefly in the Constitution of the Church, and
next to Him the Apostles as lawgivers either of divine or
human laws, viz.: as inspired or merely human instru-
ments.
■
2. The Roman Pontiff, either alone or in unison with
a general council, as endowed with the supreme and
ordinary power of enacting laws for the universal church ;
3. The Bishops for their respective districts, inasmuch
as they are empowered to enact laws subordinate to com-
mon law;
lS. TkeoL, I-II, q. 90. a. 4.
10
oogle
i*~^ ^ , ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
SOURCES OF. CANON LAW II
4. Customs, too, must be considered as a source of
law, universal as well as particular.
Whether the natural law can be called a source of
Canon Law depends on the formal declaration of the su-
preme authority ; for the natural law as such — its extent
ia very uncertain — cannot be called a homogeneous
source of Canon Law except it has been declared such by
the highest authority.2 Besides its range being very
uncertain, the so-called natural law is often nothing but
a subjective sentiment, or, at most, a dictate of reason.
2 Cfr. J. Laurentius, S.J, In- that the natural law should be cau-
stitutiones Juris Bed., 1903, p. 9; tiously used in Canon Law.
Schenkl, I. c-t 37, justly remarks
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
■
"-.
SECTION 2
THE " FONTES COGNOSCENDI "
These sources, as we have said, are depositaries in
which we find collected the laws enacted in the course of
centuries. They may also be considered as the channels
through which the river and rivulets of legal enactment
flow and are preserved. They do not constitute the
law as such, but rather point out where it may be found.
Among these sources are Holy Scripture and the decrees
of popes and councils ; also, in a measure, custom, inas-
much, namely, as it proves the existence and continuity of
laws unwritten and perhaps forgotten.
ARTICLE i
HOLY WRIT
3.
1. When we speak of Holy Writ as a source of Canon
Law, it is evident that we refer primarily to the writings
of the New Testament. There we meet with a nucleus of
constitutional laws which were later developed; there,
also, are to be found moral precepts which form the con-
necting link between the Old and New Dispensations.
2. As to the Old Testament, a distinction must be made
between moral, ceremonial, and judiciary laws. The
strictly moral laws contained chiefly in the decalogue were
received bodily into the New Law. Not so the cere-
monial lawsf which, being ordained for the external wor-
ship of God, were modified and even abrogated by the
12
jle
£ * ^ .. %\s* Original from
UNIVERSITY OF WISCONSIN
—
a
N
SOURCES OF CANON LAW 13
Church, inasmuch as they were laws of the old Code and
to some extent detrimental to the spirit of the universal
Church,1 and consequently have no binding force as laws
of the Old Testament (v, g., tithes).
The judicial laws of the Old Testament, i. e., those
which govern man's relations to other men, were en-
acted according to the needs of the old theocratic State
and have lost their binding force by the coming of Christ.
Yet as far as they suit the conditions of the New Testa-
ment, they may, not as O. T. laws, but as rules for the
N. T.f be used even in the Church, because they rest on
the dictates of reason a {v. g., prohibited degrees of mar-
riage).
ARTICLE 2
DECREES OF THE ROMAN PONTIFFS
■
The decrees of the Roman Pontiffs have always enjoyed
great authority in the Church, from the time of Clement
I (-f- 100P) to our own day.3 Their subject-matter was
partly dogmatic, partly disciplinary ; it is the latter class
that especially concerns Canon Law.
1. It was customary for the Pope, soon after having
taken possession of St Peter's Chair, and on other oc-
casions, to gather a synod in Rome and to send the acts
of that synod, together with a profession of faith, to
the patriarchs and other prominent bishops. These docu-
ments often contained matter concerning not only the
faith but also the discipline of the universal Church,
and were called constitute (scil. in synodo). Besides,
the Popes were often called upon to issue what are
called privilegia, either for monasteries or for person-
lCfr. S. Th.. I-II. q. 103. B Cf r. Coustant, O.S.B., Epiitofae
lib., qq. 104 S. Rom. Pontificum, Paris, 1721, a work
still useful and highly appreciated.
oogle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
14 INTRODUCTION
ages placed in high station. These sometimes bore the
character of regular documents (diplomata), then again
they were but personal letters, though written in a more
solemn style, and having a silk thread (litterae gratiae)
or a hemp thread (litterae justitiae) attached to them
(eleventh century). Later on, especially under Martin
V (1417-31), the custom prevailed in the Roman Curia
of distinguishing two principal kinds of papal documents,
i. e,, bullae and brevia, which distinction is still preserved.
At the time of Innocent VIII (1484-92) another sort of
papal letters was introduced, not sealed but only signed
by the Pope; their name is " Motu Proprio " (scil. scrip-
tac litterae). This, in short, is the origin of papal docu-
ments.*
2. As to the form and juridical value of the various
kinds of papal documents, the following distinctions may
serve as a guide :
a) Bullae, Brevia, Rescripta, and between the two
last-named the so-called " Motu Proprio."
a) Bullae, or Bulls, thus called from the seal of lead
appended to, or impressed upon, the paper or parchment,"
and bearing on one side the images of SS. Peter and Paul
and on the other the name of the reigning Pontiff, are
solemn documents. If the matter or object to be ex-
pedited " in forma Bullae " is a very important one,
such as the confirmation of a bishop, the erection or divi-
sion of a diocese, or a solemn act of the R. Pontiff, the
leaden seal hanging on a silken cord is appended. If,
however, the Bull contains matter of less importance, v. g.,
4 Cf. Bresslau, Handbuch der gem (precious ornament), then seal,
Vrkundenlehrc, 1889, Vol. 1 {only from which it is transferred to the
one vol. published), p. 67 ff.; also document provided with a seal, cf.
Mabillon, De Fe Diplomatica, Paris, Thesaurus Linguae Lat., 1906,' II, p.
1681. 3241 f.j Du Cange, Glossarium, II,
0 The original meaning of bulla i% p. 1339.
'Ic
f ■ J ^ Original from
UNIVERSITY OF WISCONSIN
SOURCES OF CANON LAW 15
a
dispositions regarding minor benefices or matrimonial
dispensations, the document has a seal of red wax
with the images of SS. Peter and Paul, and around them
the name of the reigning Pontiff.9 The opening words
are; " [Beyiedictus XV] Episcopus Servus Servorum
Dei." T A special kind of Bull are the " Bullae dimidi-
atae/' which are issued between the election and corona-
tion of a Pope, and bear only the image of the two Apos-
tles, whilst the reverse side of the seal is blank.8
p) Brevia, or Briefs, which have grown out of the
letters closed with wax, are issued in the Secretaria
Brevium, and generally concern minor affairs (negotia
non grazna), although, at times, in order to save ex-
penses, Briefs are issued regarding matters which would
really require a Bull, v. gm, the erection of Abbatiae Nul~
lius. They begin with the name of the Pontiff, thus :
" Benedictus Papa XV," and end with the words: "Sub
annulo piscatoris"
" Motu Proprio's " and Rescripts have no special form.
We may add that the Bullae are now no longer written
in Gothic but in the usual Latin letters, on parchment.8
b) Concerning their juridical value, it must be noticed
that papal documents are variously styled: a) Constitu-
tions, named after the ancient imperial constitutions, are
Apostolic letters referring to important matters which
concern the universal, or at least the entire Western
Church. They may also be called, not improperly. En-
c
tActa Leonis XIII, i88i, t I, p. patriarch, ityled himself "Servant
184 f. of the servants of nod."
7 This title dates back to the pon- 8 Cf. Ciromi Observation*!, e<J.
tinea te of St Gregory the Great Riegger, 1761, p. 5.
(590-604), and U of monastic origin, 0 Thus ordained fay Leo XIII, Dec
the monk* calling themselves '* serv- 39, 187B; elr. Arch-.: fiir kath. Kir-
ants of God," and this Pope, to re* chenrecht. Vol. 41, p. 309; Aichcer,
prove the arrogance of the Byzantine Compendium Juris Ecclesiastic*. {
10.
-
* -x, \i-\i » Original from
oogle
UNIVERSITY OF WI5CON5I
16 INTRODUCTION
St
cyclical letters, though these generally refer to the per-
sons addressed ( viz. : the hierarchy ) and contain less
juridical matter {v. g., * Rerum novarum," of Leo XIII,
! 1890.
fi) Decrees; or decretals, to which belong those letters
issued " Motu proprio" and 4'ad instantiam " (re-
scripts), broadly speaking, touch upon particular affairs
and contain favors and privileges or answers to ques-
tions proposed by private individuals. It must, how-
ever, be added that " Motu proprio " does not exclude in-
sistence or a request from interested parties.
ARTICLE 3
THE CANONS OF COUNCILS
Councils, as history testifies, were generally called at
times when a crisis threatened the Church at large,
or at least a considerable portion thereof. Although the
first four general councils were convoked by the emperors,
the " Bishop of old Rome " was represented by legates,
and the decrees adopted were acknowledged by the uni-
versal Church. St. Gregory the Great speaks of those
four councils as of four gospels.10 Besides these impos-
ing assemblies there were held provincial councils, v. g.,
at Antioch, Ancyra, Sardis, which also enjoyed great
authority. Still a distinction was always made between
universal and particular synods ; the canons of the former
were received by all, whilst those of the latter had only
local force, except when they were inserted in an authen-
tic collection of Canon Laws. No authentic collection of
conciliary decrees as such exists. Of general Coun-
cils, two were held at Nicaea in Bythinia (325, 787),
10 Registrant Greg., P. I, 24, ed. 36 (this is a model epirtola sy*o-
Ewalil Harlrcumn (Af. C), 1891, I, dica).
§le
% ,1,., Original from
UNIVERSITY OF WISCONSIN
p
SOURCES OF CANON LAW 17
four at Constantinople (381, 553, 680, and 86t>), one at
Ephesus (431) and Chalccdon (451), four at the Lateran
(1123, 1139, 1179, 1215), two at Lyons (1245, 1274),
one at Vienne (1311-13), one at Constance (1414-18),
one at Basel-Ferrara-Flarence (1431-45), one at Trent
0 545""63 )» and one at the Vatican.
ARTICLE 4
c
s
THE UNWRITTEN LAW
A certain amount of traditional law is in vogue every-
where. It is the living spirit of the people's judgment,
or " common sense." The Church, too, has her tradi-
tions, which testify to the observance of discipline, al-
though there may be no corresponding law. Thus the
celebration of the Sunday instead of the Jewish Sab-
bath ll is called a divine tradition. Human traditions
are, e. g., that which causes Easter to be celebrated on a
certain day and the existence of minor orders.
Besides, there are uritings of ecclesiastical authors
which prove the existence of certain customs in ancient
times. These, however, if not embodied in an authentic
collection, have merely historical value.
Leaving traditions aside as being now defined and to a
great extent determined, Canon Law is more especially
interested in custom, which shall be treated in the Com-
mentary proper.
c
o
11 C. 5. DUt 11.
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CHAPTER IV
HISTORY OF THE SOURCES AND LITERATURE OF CANON LAW
s
The chief authorities to be consulted are:
Ballenini, Peter and Jerome, in their ed. of the Opera
Leonis M., t. 3 (Migne, Pat. Lai., t. 56) ;
P. Coustant, O.S.B., Epistolae Rom. Pontificum,
Parisiis, 1721, Praef.;
_^-F. Laurin, lntroductio in Corpus Juris Can., Friburgi,
1889;
F. Maassen, Geschichte der Quellen u. der Literatur
des Canonischen Rechts, Gratz, 1870 (Vol. 1, the only one
published) ;
_^-^J. F. Schulte, Geschichte der Quellen w. Literatur des
Canonischen Rechts von Gratian bis auf die Gegenwart,
i&75* 3 vo13-;
Aug. Theiner, Disquisitlones Critlcae, 1836.
The critical and historical method of treating the
sources of Canon Law began with Humanism, or, more
properly, with Nicholas of Cusa (Cusanus, + 1464).
That the Pseudo-Isidorian Collection should be first at-
tacked was natural. But this was but a beginning.
Much remained to be done in regard to papal letters and
conciliary decrees. A great deal had been achieved by
the Spaniard Antonius Augustinus, in the sixteenth cen-
tury, but his work was left incomplete. More elaborate
were the critical labors of the brothers Peter and Jerome
Ballerini, who deserve a distinguished place in canonistic
18
Go >gle
, 1 , Original fro m
UNIVERSITY OF WISCONSIN
HISTORY AND LITERATURE 19
literature. The names of Maassen and Schulte also are
favorably known in this line of studies.
We can give only a brief historical sketch of the col-
lections made according to the various epochs which
Canon Law traversed.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
SECTION i
FIRST PERIOD (TO ABOUT IISO)
Some disciplinary regulations are to be found in the
so-called " Constitutiones Apostolorum/' a fifth-century
collection, made up of the " Doctrina XII Apostolorum,"
" Didascalia Apostolorum," and " Canones Ecclesiastic!
Apostolorum," to which were added the "Canones Hip-
polyti." 1 This collection, made by an anonymous writer
imbued with heretical tendencies, contains some tradi-
tional customs concerning episcopal elections, ordination
and qualities of aspirants to the priesthood, minor
orders, etc. But it cannot properly be termed a source
of Canon Law.
A collection of conciliar canons must have existed
at the time of the Council of Chalcedon (451). Most
probably this collection contained the enactments of
"Seven Councils/' vis.: those of Nice, Ancyra, Neo-
Caesarea, Gangra% Antioch, Laodicaa, and Constantinople.
To these were added later the canons of the councils of
Ephesus, Chalcedon and Sardis (343), and the com-
bined collection was eventually called Collectio Decern
Conciliorum.2 To this were prefixed the " Canones
Apostolorum," 85 in number, which were received by
the Trullan Synod held in the year 691-692 and are still
1 Cfr. Funk, Didascalia <-f Consti- denhewer Shahan, Patroloay, 1908.
tul\ones, 1906; O. Bardenhcwcr, Ge- pp. 349 ff.
ichichlc dcr allchrtJtlichen Literatur, 2 Maaswn, op. cit, pp. 126 ff.; P.
1003. Vol. 2, pp. 69, 355 ff.; Bar- Coustant, op. cit.. pp. LVIII.
20
§le
/*.,., -J,-, Original from
UNIVERSITY OF WISCONSIN
EARLY COLLECTIONS 21
acknowledged in the Eastern Church as " Codex Ecclesiae
Orientalis" 8
Whilst these collections were chronological, the later
ones were systematic, beginning with one by an unknown
author and another by Joannes Scholasticus (c. 550),
distributed into 50 titles.
Another species of systematic collections were those
styled " Nomocanones/' containing, as the name implies,
both civil (vono'i) and ecclesiastical (*<W0 laws. Several
such collections were made in the sixth and seventh cen-
turies and one of them was revised by Photius (c. 883).*
This caesaro-papistic collection was based on the still
acknowledged principle of the Oriental Church that " in
illis quae canones non determinarunt, debemus sequi leges
civiles." 5
-
ARTICLE 1
c
OCCIDENTAL COLLECTIONS
c
The Greek collections mentioned above found their
way into the Latin Church as early as the close of the
, fifth century, when a translation of the Greek canons
was made and spread in Italy and Spain. In this latter
country the spread of the Latin translation of the Eastern
Councils was due especially to Isidore of Seville, and
hence it goes by the name of Isidoriana, whilst the Latin '
translation used in Italy was called " Prise a." *
In the latter country, most probably in Rome, a
S Mi]ascli-Pc38ic( Kirchenrecht der preface of the Dionyeian version*
abendldndischcn Kirchet 1905, pp. " priscae trnnslationis." Cfr. I'ocW
81 ff. el Juslelli Biblioiheca Juris Can.t
4 V. Scherer, /. c, I, ip7- Paris. 1661. t. 1, p. xoi; Maassen.
8 Cfr. Syntagma Atheniense. 1. 68 /. c. pp. 87 ff: Ballerini (MiRne. 56.
(Milasch, /. c, p. 50)- col. 83 f.).
a It was thus called from the
>gle
Original from
UNIVERSITY OF WISCONSIN
22 INTRODUCTION
St
Scythian monk, Dionysius Exiguus (Denys the Little,
-|- before 555), made a translation of the Greek canons,
213 in number, to which he added fifty " Canones Apo-
stolorum" and 138 canons of African councils. This
collection was increased by the *' Decretales SS. Pontifi-
cum" issued from the time of Siricius (384-94) to the
pontificate of Anastasius (+498), 197 in number. A
copy of this double collection of conciliar canons and
papal decrees, with some additional decretals, was do-
nated by Pope Hadrian T to Charlemagne in 774, and
1 subsequently called Dionysio-Hadriana. It enjoyed
great authority in Italy, Gaul, Africa, Spain, and Eng-
land.7
In Africa a collection of the decrees of councils held
from 397 onward was made at an early date and con-
densed into the " Breviatio Canonum" of Fulgentius
Furandus towards the middle of the sixth century. A
systematic handbook destined for school use was the
work entitled " Concordia Canonum " of Cresconius,
published in the year 690/
Of Gallic origin are the so-called " Statute Ecclesiae
Antiqua" of the sixth century." Another collection of
French descent is that named from its editor Paschase
Quesnel, Questielliana, and the one published by d'Achery,
O.S.B. (-|- 1685), called Dackeriena™ The latter au-
thor also edited a collection of penitential canons which
goes by the same name, but was originally called " Collec-
tio Canonum."
Spain had the fsidoriana, which through the magic
name of St. Isidore (+636) gained great authority, and
7 Maassen, /. c. pp. 444 ff.; pp- B Migne, 56, 28*; 273 f.; Maaswn,
965 ff.; Migne, /. c, 19s f. I. c, 79 t .; 806 ff.
a Mabillon, Iter Italicumf 1724, W Ballcrini, /. c. (Migne, 53,
II; cd. Th. Sickel, 1889. 106 f.>; Maawen, ft, c, 38a t
Go >gle
Original from
UNIVERSITY OF WISCONSIN
■
pi
1
SPURIOUS COLLECTIONS 23
was twice revised between 589 A. D. and the close of
the seventh century ; and a collection made by, or pub-
lished under the name of, Martin of Braga, and circu-
lated as "Capitula Martini.1* u
Besides these collections of Canon Law proper, the
Penitential Books, published especially in Ireland, Eng-
land and France, enjoyed great esteem.12
For the jus liturgicum the Sacramentaria 13 and Ordines
Romani M are of great importance. For the chancery of
the Roman Curia, its style and methods of expedition,
the " Liber Diurnus " is invaluable.
ARTICLE 2
SPURIOUS COLLECTIONS OF THE NINTH CENTURY
The ninth century was rife with fabrications, not only
in hagiography, but also in Canon Law. To this cate-
gory belongs a collection named Continuatio ad Capita-
laria Regum Francorum, which the Levite Benedict of
Mayence professes to have taken from the archives of
that Church and compiled at the request of Bishop Hatto
(825-47). It contains genuine canons and decrees side
by side with spurious ones manufactured by Benedict.15
Not much different in character and style are the Capitula
Angiiratnni. Roth this and the former collections origin-
atcd in northeastern France,1"
c
a
U Mipn, 141 f.; 309; Maassen, l* Probst, Die altesten r$m. Sacra-
436 f.; 536 IT ; 848 ff mentarien, 1A92.
"'- \1i,-ik-. 53, 218; Maassen, 8oa l&Clr. Monumenta Germaniat
ff.; 677 ff. Hutorica, Leges, II, a, 39-158.
lBCfr. Wasserschleben, Die Buss- 18 Cf r, Hinschius, Decretties
ordnungen der abendlandischen Pseudo-Isidorianoe et Capitula An-
Kirche, 1851; Schmitz, Die Buss- gilramni, 1863, PraeL, CXCIIIff.;
buchtr, 1883. CtXXX, p. 7S7-
§le
( * ^ ^ iL» Original from
UNIVERSITY OF WISCONSIN
24 INTRODUCTION
The Pseudo-Isidorian Decretals
This collection has, since the fifteenth century, claimed
the attention of critics. That it contained considerable
fraudulent matter was perceived by the famous human-
ist, Cardinal Nicholas of Cusa,11 and has since been
acknowledged by most w Romanists," although some later
writers, like Torres, Malvasia, and Cardinal d'Aguirre,
defended its genuineness.
i. Contents. The collection consists of a preface and
three parts. The Prtpfatio contains the foreword of
pseudo-Isidore (Mercator or Pcccator), a spurious let-
ter of Aurelius of Carthage to Pope Damasus with the
latter's equally spurious reply, and the " Ordo de Cele-
brando Concilio."
Part I contains 50 Canones Apostolorum and decretals
of Popes from Clement I to Melchiades (-(- 314) — the
latter, with the exception of the Clementine letters, all
manufactured by " Mercator." lfl
Part II is made up of (a) De Primitiva Ecclcsia, (b)
Exemplar Constihtti Constantim, and (c) Canons of
Councils from the Nicene to the second of Spain, partly
in the form of the Hispana, partly in that of the Qucs-
nelliana.19
Part III exhibits some excerpts from Pope Silvester
en
and a number of genuine decretals from Mark (-(- 336)
to Gregory II (715-31) in the form of the Hispana.20
The number of apocryphal decretals is about 46 and
that of the chapters which the author himself compiled
about 104."
■
it Concordanlia Catholica, III, 2; ft.
Ballcrini (Mignc, 5S. 210). 20 Hmschius, LXXXIX
lBHinschiua, /. c.t p. LXX. fli Cfr. Coustant, /. c, CXXVI;
IB Hintchiui, I. c, pp. LXXXIII Hinachiut, CVIIL.
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
SPURIOUS COLLECTIONS 25
2. Author and Time of Composition. It is commonly
held that the birth-place of these pseudo-decretals must
be sought, not in Rome (as Eichhorn and Theiner
claimed), but in the western part of France. The exact
place still forms a matter of controversy. While some
{v. g. Hinschius -2 and von Scherer23) regard the diocese
of Rhcims as the home of the fraudulent compiler, oth-
ers (especially Fournier24) assign him to the province
of Tours and in particular to Le Mans.
As to the time of compilation there is no great diver-
gency of opinion, for it is generally set between 847 and
I 853"25
3. Purpose of the Compiler. It is scarcely credible that
the author had for his sole purpose the aggrandizement
and defense of the Apostolic See,20 or that of the bishops
of Gaul or any particular part of it.27 He says in the
preface that he desired to gather the scattered canons
into one volume. However, this was not his only pur-
pose, otherwise his fabrications would have been super-
fluous. There can be no doubt that the compiler had
still another end in view. This was, as Fournier 28 and
others set forth, a twofold one: (a) to protect the au-
thority of the bishops and clergy against encroachments
of the potentates and lay-power at large, and (b) to
secure the authority of the Roman Pontiff over particu-
lar synods, and to defend the hierarchy in all its degrees.
Concerning the first point the emphasis laid on immunity
is most notable. As to the other point it may be noticed
22 Pscudo-Dccretals, Pief., CCXI. 25 HinachiuB, /. C. p. CCI.
38 Uandbich des KirchtnveeHs, 26 Ballerim (Migne, 53. 346).
1RR7, I, 23i f. 27 Hinschius. /. r., CCXIII f.
24 Les Faustes DicrHais. in Rt- 2SRtvue. d'Hist. Eccl.. iqo6, p.
vue d'Hittoire Eccl., 1906, 784. 548.
p
* r,,1(M1|p Originalfrom
oogle
UNIVERSITY OF WI5C0NS!
26 INTRODUCTION
that the Apostolic See was not in need of apocryphal
documents to assert its rights.20
4. Influence of the Collection. It has frequently been
said that Pseudo- Isidore ushered in an entirely new dis-
cipline. If this were true, only a solemn anathema on
that fraudulent writer could repair the damage done to
Canon Law. However, we must beware of both ex-
tremes— overrating the influence exercised by this col-
lection as well as minimizing it unduly. A little distinc-
tion may be helpful in determining its true influence.
The material sway it exerted we see in the greater
dependence of bishops and provinces on the Holy See —
more centralisation — and in the outspoken tendency of
the compiler to accentuate what we comprise by the
term " immunity," and by extending the matrimonial
degrees, which was then unheard of.
The formal influence consisted in the precision and
divulgation of laws which, though already existing, were
not yet accurately determined, v. g., concerning the con-
firmation and deposition of bishops, appeals, immunity.
It cannot be denied that this fraud rendered a bad serv-
ice to Canon Law, bringing it into discredit and evil
repute for a time.30
In Germany two collections were widely known and
made use of, to which may be added a third. They are:
a) Regino of PriinVs " De Synodalibus Causis et Dis-
cipline Ecclcsiasticis," which was made between 906 and
915, in which latter year Abbot Regino died.81
29 Dallcrini (Mignc, $6, 246). H. Dnvenport, Oxford, 1916.
SO Von Scherer, /. c, X, M7; 31 Cfr. Ttallerini (Mijn«, 56. 3*9)1
Coustant, /. c, Praef.. CXXVIL Regino's collection was published in
An excellent monograph in English, Migne, i\;-> 17 f. and by Wasser-
by a Protestant lawyer, is now avail* schleben, 1840.
able in Tht Faht D$cretals, by E.
oogle
, ,] , Original from
UNIVERSITY OF WISCONSIN
MEDIEVAL COLLECTIONS
b) More renowned is the " Decrctum Burchardi."
Burchard was Bishop of Worms, and composed his col-
lection for practical purposes, especially for the visitation
of his diocese. It consists of twenty books, the nine-
teenth of which is called " Corrector sive Medicus " and
treats of penitential discipline. Burchard's chief sources
were the " Collectio Anselmo Dicata," whose arrange-
ment he adopted, and Regino's collection. Besides, he
quoted many false decretals (about 173 in number), and
invented new ones (about 59). He also changed or
mutilated the inscriptions of titles and chapters.82 But
despite all these shortcomings the work found a ready
reception, not only in Germany, but also in Italy, where
Gratian introduced it into his Decretum " as " Brocardi-
cae."
c) Belonging to the " Gregorian M group is the " Capi-
tulare" or " Breviarium Hattonis," composed about
1080."
c
ARTICLE 3
COLLECTIONS OF THE TRNTH AND ELEVENTH CENTURIES
h
The Pseudo-Isidorian Decretals were followed by other
collections, more or less spurious, not only in France,
but in Italy and Germany as well. The age was prolific in
forgeries.
I. In Italy there was one published which is not as
yet printed, although it would, according to our view,
based upon inspection of the original MSS.," deserve
a» Cfr. Fcurnirr. Etudes Critiques. tktca Patrum, VII, P, III, 1-76; v.
as See Fiicdberg, Decrttum Ma Scherer, /. c, I, 240-
ffistri Gratiani, Leipsic, 1879, pp. <*& Contained in the Cod. Paris.
XLVff. 1539a. Cod. Mutinens.; bealdca in
■4 Edited by Mai, Nova Bibiio- the Palat. Vat. 580 and 581, which
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
/
28 INTRODUCTION
more attention. This, the " Col ice tin Anselmo Dicata"
was made towards the end of the ninth century.
The investiture controversy brought forth some col-
lections which are all imbued with the spirit of Gregory
VII and therefore called " CoUectiones Gregorianae."
To this group belong :
a) The Collectto Anselmi Lucani (Anselm of Lucca,
+ 1086);
b) The " Collectio Canonutn Cardinalis Deusdedit,"
dedicated to Pope Victor III (1086-87) ;34
c) The " Decretales Bonizonis," composed soon after
\^ 1089;
d) The " Poly car pus" of Cardinal Gregory, issued
soon after the death of Pope Calixt II (+ 1124).
The Vatican Library furthermore contains some in-
teresting MSS. pertaining to collections of that period,
which await publication.87
3. In France some notable special treatises were pub-
lished, e. g., Hincmar of Rheims' " De Divortio Lothari
Regis" 8a and Jonas of Orleans' (+ 843) " De Laicali et
Institutione Regali." *• Collections proper are :
a) The " Canones Domni Abbonis" of Fleury
(-}- 1004), dedicated to King Hugh and his son Robert,
a collection of genuine canons and papal decretals, also
containing Capitularia Regum Francorum and Novel-
he.*0
b) A " Compilatio Juris Canonici" of about the
are written in the Carol ingian sa Published by Martinucci, i860,
minuKulei. This Anselm, to whom and by Wolf von Glanvell, 1905.
it is dedicated, was Archbishop n? Cod. 1339 in 5 books; Cod. 1346
of Milan, 683-97; cfr- Ballerini in 7 books, more or less dependent
(Migne, 56, 315 flf.), Coustant,^/. c, on Pseudo- Isidore.
Praef., CXXVI; Fournier, Etudes 88 Migoe, Pal. Lot., 12$, 623 ff.
Critiques sur le Dicret de Burchard «9 Migne, /. c.t io6f iai ff.
de Worms, 1910, p. 10. 40 Ballerini (Migne, 56. 320, 130.
47jfJ.>.
'■-.
ogle
f* -* v -iL-. Original from
UNIVERSITY OF WISCONSIN
a
MEDIEVAL COLLECTIONS 29
same date, treating of the reception of heretics and some
of the sources of Canon Law.41
c) The " Decretutn Ivonis Carnotensis" (-\- 1117),
which consists of seventeen books, and the same author's
" Panormia" in eight parts. The former is a rich col-
lection not only of canonical matter but also of theological
lore, e. g., on baptism, confirmation and the Holy Euchar-
ist The " Panormia w was said to be the compilation
made from Ivo's Decretum by the Catalonian Hugo, but
it is probably Ivo's work.*2
d) A " Collectio Triutn Partium," divided into 29
titles, was made from Ivo's work soon after his death.4'
Then there is the work of Alger of Lidge " De misericor-
dia et justitia," c 1121, consisting of three parts.44
In Spain a collection of 15 books appeared shortly
after the Pontificate of Urban II (1088-1109).*5
41 V. Scherer, I, 238. 44 Migne, 180, 857 ff,; v. Scherer
4lTheiner, I. c, pp. 162 f.; Migne, I, 242.
56, 104. ftoBallerini (Migne, 56, 353 f.).
« Tackier, /. c, pp. 154 ff.
G| _ Original from
OOglt UNIVERSITY 0FWI5C0NSIN
■
SECTION 2
SECOND PERIOD (*TO THE COUNCIL OF TRENT)
This epoch is distinguished by two prominent charac-
teristics. Canon Law becomes independent of theology
as such and is cultivated as a science proper. The
" Magister n ushers in that period, so glorious for canon-
ical lore and resplendent with names immortal. The
appearance of standard or authentic collections sheds
lustre on Canon Law, which now grows into Pontifical
Law and irradiates immediately from St. Peter's Chair.
These authentic collections are now, first of all, to be
considered. It is necessary, however, to premise a few
words on the famous Decretum Gratiani.
■
c
ARTICLE I
THE DECRETUM MAGISTRI GRATIANI
I. Author and Name. — As the glossators testify, the
author of the famous Decree is Gratian, who lived and
taught as a member of the monastery of SS. Felix and
Nabor at Bologna. It is most probable that this mon-
astery then belonged to the Camaldulese. Of Gratian's
career we know nothing, except that he died before A. D.
1160.1
There is historical evidence that the M Magister," as he
was called, had entitled his work " Concordia Discordan-
1 Cfr. Maurus Sarti, 0. Cam., De QutUen, 1875. Vol. I, pp. 46 1; Lau-
Clarix Archigymnasii Bononitnsis rin, /, c, p. 10.
Proftstoribui, 1769-72; Schulte,
30
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
DECRETUM GRATIANI 31
tium Canonum" 3 His purpose, according to his disciple,
the famous Magister Rolandus (later Alexander III),8
was to make apparently contradictory canons agree
and to remove latent divergencies. However, already
towards the end of the twelfth century, the collection
was commonly called Decretunt Magistri Gratiani, al-
/ though it was also cited by the names " Codex/' " Cor-
pus," or " Liber Decretorum," or simply, " Corpus Juris
Canonici." *
2. Division. — The threefold general division was made
by Gratian himself, — De Personis, De Causis, De Sacra-
mentis}
Part I consists of 101 distinctions, divided into canons,
— but not by Gratian. It contains a treatise on the prin-
ciples of Canon Law and a long treatise " De Electione
et Ordinatione Clcricorum."
Part II was divided by Gratian himself into 36 Causae,
and each causa into Qucestiones, which, in their turn, were
subdivided into Canones. The first ten Causae might
be inscribed " De Judiciis"; Causae 11-20, " De Bonis
Ecclesiasticis ct Regularibus." Causae 21—26 treat of
benefices and privileges, Causae 27-36, of marriage.
Causa 23, Quaestio HI, contains the " Tractatus de
Poenitentia," which Gratian inserted here, but did not
himself divide into seven DisHnctiones, as we now have
it.
Pari III was inscribed, "Liber de Sacramentis," for
which title Paucapalea substituted " De Consecratione."
It is divided into five distinctions.0
3. Mode of Alleging. — A canonist will never quote,
p
2 Friedberg, Dec-return Magistri 4 Latino, Fntroductio, p. 35.
Cratiani, 1879. Prol., X. 6 CFr. Schulte, Quellen, I, 50B.
s Summa Magistri Rolenii, ed. 9 Ibid., I, 50 ff.
Thaner, 1874. P- 4-
.'le
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
p
32 INTRODUCTION
St
e. g., " in Decreto Gratiani," but follow the usual mode of
citing the decree :
Part I: c. i, D. i, which would read : Canon first, Dis-
tinction first. Sometimes we find the initial words only
quoted, e. g., " Si quis apostolicae," LXXIX, which is
Can. 1, Dist. 79. Of course, in that case the index must
be consulted, which now takes the place of memory, on
which the law-students of former times had to rely.
Part II has the distinctive sign C (Causae, written with
a capital C), taking the middle between canons and ques-
tions, thus : c. 29, C. tf$ q. 4, or again with the initial
words of the canon: ''Si quis suadente diabolo," which
is the canon quoted in number and abbreviated letters.
De Poenit entia: c. i, Dist. 5 de Poenit. which reads: canon
I, Distinction 5, with the characteristic sign, " De Poenit."
We must draw attention to the fact that two of the
Causae exhibit a transposition of questions ; in Causa 2,
quaestio 5 is placed immediately after 3 ; and in Causa 16,
quaestio 5 directly follows 3.7
Part III ; c. 16, Dist. 5 de consecr(atione), which signi-
fies canon 16, Distinction 5 de consecratione ; or again
with the beginning words: " Quadragesima summac" de
consecr.
Note that older canonists simply quote " in Decretis "
with the initial words of the canons, and if the text
does not fully cover the proof, they say " org " (argumen-
tum).8
4. Rubricae, Dicta Gratiani, Paleae. — To show the
author's method it suffices to point out the brief sum-
maries which precede almost every canon or authority
alleged by the n Magister." These summaries are placed
at the head in red (ruber) ink and hence called rubricae.9
7 Laurin, i, c, p. 7 (thus al&o in • id., pp. 9 f.
Fricabctg's edition). 9 Cfr. Schultc, /. c, I, 54-
ci byC 'Ic
I , Original from
UNIVERSITY OF WISCONSIN
DECRETUM GRATIANI 33
Furthermore, the Master employed at times some
longer expositions, which were either to prove his view
on certain canons or a deduction from the authorities
alleged. These elucidations were styled paragraphi or
d'eta Gratiani They are to be found either before or
after a distmctio or causa or quaestio, and savor of the
scholastic disputation.10 They were intended to remove
contradictions between different canons by pointing out
that one canon formed the rule, whereas the other was
an exception, or that one contained a precept, whereas
the other was only a counsel ; one emanated from a higher,
the other from some inferior authority; one was given
for the universal Church, whereas the other referred to a
particular province, etc."
The Decretum, as now published, contains many addi-
tions which are not the work of Gratian. It is certain
that the Master's disciple, Paucapalea, added some de-
cretals, wherefore all the additions were called paleae.12
Their number is not quite certain, perhaps they form
166 out of the 3848 chapters of which the Decretum con-
sists.18
5. Sources and Authority. — (1) The sources are
either directly or indirectly taken from their collections
and collectors. The direct sources are 17 apostolic can-
ons, apocryphal as well as genuine decretals from Pseudo-
Isidore, the writings of the Fathers, four chapters from
St. Benedict's Rule, and Roman, Visigothic and Frankish
civil laws.
Indirect sources were those of the collections : Anselmo
dicata, Regino, Burchard, Luccani, Deusdedit, Polycarp,
10 lb., ss ff. A famous "die- 12 Another explanation, vi*. that
turn Gratiani" is that ad c. 16, C. of "straw" (palea), is given by Hu-
25* 3- '1 on the nature of privileges. guccio, ad c. 51, C .7. Q. 2-
xi Schulte, /. c.j I, Co; v. Scherer, is Friedbern, /. c, Proleg., y.
/. c.t I, *41- XIV; Schultc, /. c, 1, 56 ff.
jle
( * ^ -. -A,-* Originalfrorn
UNIVERSITY OF WISCONSIN
34 INTRODUCTION
Ivo, Algerius.14 But the lack of critical genius of his
age is also noticeable in Gratians' work.
(2) The reception given to the Decretum is almost
incredible in our critical time. It was called "opus
aureum " or " divinum decretorum opus." 1B There
seems to be a reason for the applause with which the
Magister's work was hailed : on account of the rich ma-
terials he had gathered and the scientific method he had
adopted, especially in his " dicta " and general arrange-
ment, the Decree soon made other collections superfluous
and was generally used in schools and courts.18
•»*'■* In spite of all this veneration, however, the Decretum
Gratiani has never been considered or declared an au-
thentic collection. It was made by private authority and
remained such. Hence its authority is neither more nor
less than the sources laid under contribution are worth.
A decree made by a universal council (consideratis con-
siderandis) has the value of a universal law; a canon
adopted by a particular council receives no additional
force by being inserted in the Decree beyond that which
it had before Gratian, etc. Hence each source must be
examined independently as to its origin, authenticity, and
authority.
At the same time it must be remembered that the
Decree, on account of its popularity and the influence
it exerted on teachers and judges, paved the way for
other collections, which were no longer of merely private
authority.
6. Time and Editions. — When Gratian composed his
Decretum is a matter of controversy. We do not bc-
p
HFriedberg, /. c.t pp. XIX ff.; p. Laurin, i. c, pp. 44 *•
--.
XLII. wSarti. /. c. I. 347: Berardi,
lfiCfr. Berardi, Gratieni Canon** I c, Praef., XXVIII; Schulte, L C.
Cenuini, 1783, I; Sarti, /. c, 1, J47; I, 329.
oogle
f^ ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
'■-.
DECRETUM GRATIANI 35
lieve that intrinsic reasons will ever be found to clearly
determine the time of its birth. What has been urged lT
in favor of an earlier than the usually accepted date, is
not solidly proved nor free from bias. Extrinsic rea-
sons rather favor 1150-1151 as the probable year of pub-
lication. The glossa of Joannes Teutonicus ad c. 31,
C 3, q. 6 and an old MS. state these two years, respec-
tively.18
In the course of centuries the Decretum was often
copied, sometimes with and sometimes without glossae,
and the faithful rendering of the original text depended
on the care of the copyists. Mistakes and corrections
were already noticed by St. Antoninus (-(- 1459) and
they increased after the art of printing had been invented.
Antony de Mouchy, in the edition of 1547, and Antony
Conte, in the Paris edition of 1556 and the Antwerp edi-
tion of 1570, drew attention to spurious decretals. The
Correctores Romani endeavored to eliminate some palpa-
ble errors and to render the text more intelligible. In
1580 and 1582 appeared a so-called official but not au-
thentic text.1* Henceforward the Decretum was re-
printed by private savants, generally in connection with
the " Corpus Juris Canonici." 20
Appendices and Compilations.— Soon after the pub-
lication of the Decree some decretals were added to it
or separately published, e. g.t the "Appendix Concilii
Lateranensis," the " Colledio Bambergensis," the "Col-
lectio Lipsiensis," the "Decretales AUxaniri 1IL"%1
it The formula " satvQ sedis apo- tempore Eugtnii ttrtii; " Lauria, /,
ttelieae auctoritate " has been alleged c, p. 34.
by Thriner and Schulte to prove lOTheiner, I. c, app., p. j; Fried-
1139 u the year of divulgation. berg, Prolog.t L XXV if.
ie The codex reads: "Decretum 20 Cfr. below on the whole C. J,
Gratiani, monochi, Felicis Bononien- C.
iu, Ord. S. Benerlicti completum in 21 Cfr. Theiner, /. c, p. 4 ff. ;
dicio monaiterio anno Dmi. MCLI, Schulte, /. c.t I, 77 ff.
sd by GoOgle
j ^ Original from
UNIVERSITY OF WISCONSIN
36 INTRODUCTION
St
Of greater importance than these were the five so-
called Compilationes, vis.:
a) Compilatio I Bernardi Papiettsis, entitled by the
author " Breviarium Extravagantium," issued between
1 187 and 1 191, divided into 5 books with titles and chap-
/ ters according to the famous verse, " iudex, judicium,
clerus, connubia, crimen"
b) Compilatio II, by John of Wales (Joannes Walen-
sis), published before 1200. Neither of these compila-
tions is authentic, whereas the folowing three must be
considered authentic:
c) Compilatio III, made at the request of Innocent
ITI by Perrus Collavicinus or Beneventanus (1210).
d) Compilatio IV, perhaps made by Innocent III him-
self, and consequently before or about 1216, although
published only in 1217.
c) Compilatio V, made and promulgated under the
auspices of Honorius III, 1226.22 These three collections
were alleged in schools and courts in the same manner
as the Decretals.
ARTICLE 2
DECEETALES GREGORII IX (l234)
I. Name. — By a Bull dated Sept. 5th, 1234, Gregory
IX promulgated a collection of " Constitutions and De-
cretals," to which he himself, referring to the five pre-
ceding, attributed the name " compilatio." It was soon
called "nova" (scil. compilatio) as well as "Liber Ex-
travagantium" (scil. extra Decretum) and added to the
five other compilations. However, the name u Decre-
32 Cfr. Theiner, /. c, pP- ■ **-! tiottes Antiqua*. i88j; v. Scherer, I,
Schulte, /. c, I, 80 ft'.: Laurin, J. c, a*7. Jl.
97 ff.; Friedberg, Quinque Comptia-
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
DECRETALS OF GREGORY
37
■
tales " became more usual and finally exclusive,28 and is
now constantly employed.
The reason for this collection is stated in the Bull
" Rex pacincus " as follows : Some decretals, on account
of their length and resemblance to each other, appeared
to cause confusion and uncertainty in the schools as well
as courts, and to remedy this evil, the present collection
is issued as an authentic one, to be employed in schools
and ecclesiastic courts exclusively of all others. This
meant that (a) the former five compilations were hence-
forward destitute of juridical value, and therefore could
not be alleged as law-texts by the ecclesiastical judges;
(b) each and every chapter in its dispositive part, no
matter what its source or authority, was to have full
juridical value as a law-text; (c) the collection was
to be considered the Code of Law for the universal
(Latin) Church, to the exclusion of all others of a general
character. But this collection did not abrogate either the
Decretum Gratiani or existing particular laws and cus-
toms, nor did it prevent the publication of later codes.24
2. Compiler and Matter. — As the Bull u Rex pacifi-
cus " tells us, the Pope commissioned his chaplain and
confessor, Bl. Raymund de I'enaforte (-f 1275), to make
this compilation, and he accomplished his task within the
space of four years, so that the collection could be pub-
lished in 1234.
The material was gathered from Holy Scripture, from
the canons of particular as well as universal councils, and
from papal decretals. A few are taken from the civil
laws. Most of the Decretals, with the exception of those
of Innocent III and Gregory IX, were copied from the
" five compilations." There are 1971 chapters, of which
MFricdbcrt, Corpus Juris Can., 24 Laurin, i. c, pp. Miff.! T«
II, Prolcg., p. X. Schcrer, I, 251 £.
oogle
Original from
UNIVERSITY OF WI5CGNSI
38 INTRODUCTION
1766 are borrowed from the compilations mentioned.
3. Order and Mode of Quoting. — The whole collec-
tion is divided into five books according to the well-known
verse quoted above (p. 36), each book into titles, and
each title into chapters. Each title has an inscription,
and the chapters are generally preceded by rubrics or
brief summaries, which, however, are of purely private
authority, whereas the titles, whenever their words ex-
hibit a complete meaning (e. g., " Ne sede vacante aliquid
innovetur," III, 9) have legal value. When the decretals
appeared too long, Raymund cut off the arenya, or nar-
ratio, retaining only the dispositive part. The cut-off
parts (''partes decisae ") were marked " et infra." The
SI •
modern way of quoting these decretals is: f. 4, X, I, 4,
i. e„ chapter 4, liber extravangantium (viz. extra or out-
side the Decreturn Gratiani and the h\e compilations),
book first, title fourth. Sometimes the beginning of the
chapter is quoted with " extra " and the inscription of the
title, v. g., De Consuetudine.
ARTICLE 3
DECBETALES BONIPACII VIII (l208)
From the time of Gregory IX the Roman Pontiffs de-
veloped much legislative activity. Thus Innocent IV
(Fiesco), a canonist of merit, issued various Decretals,
which he himself collected and divided into 28 titles with
42 chapters. Another collection was sent by the same
Pope to the famous University of Bologna, in 1253. M
Alexander IV, Clement IV, and Urban IV also issued
Decretals, which were sometimes simply added to Greg-
WThcincr, I. c, p. 66; Schulte, Quelten, II, 30 ft.; Laurin, I, c.
Pp. 166 fl.
'■-.
►ogle
/""* -» -. iL» Original fro m
UNIVERSITY OF WISCONSIN
DECRETALS OF BONIFACE VIII 39
j
ory's collection, sometimes remained " x," as Novellae?*
These motley decretals caused some uncertainty. Where-
upon three dignitaries, William, Archbishop of Embruns,
Berengarius, Bishop of Beziers, and Richard of Siena,
Vice-chancellor S.R.E., were ordered by the Pope to
" revise " the Decretals, and after revision, to send them
to the universities of Bologna and Paris. This was done
in 1298, and the collection thus made at the request of
Boniface VIII was added to the existing Decretals of
Gregory IX as a continuation to the same, and therefore
called "Liber Sextos." So we read in the Bull " Sa-
crosanctae," March 3, 1298."
1. Matter and Arrangement. — The three above-
named compilers took their materials from the canons
of the first and second Councils of Lyons (1245, 1274)
and from the Decretals of Gregory and his successors up
to Martin IV and Boniface VIII. The Decretals of the
latter form 229 chapters. The compilers made use of the
preceding compilations and added the eighty-eight " Regu-
lae Juris," taken from Dinus of Mugello (de Rossoni-
bus).2S
The title headings were taken from Gregory's, also the
rubrics as well as the inscriptions of the single chapters.
The latter, however, were often abridged, sometimes
changed, and sometimes even wrongly quoted. The
" partes decisae " were no longer marked " et infra/' but
simply " cut off." On the whole this collection is not
as faithful and precise a rendering of the original text of
the Decretals as one might have expected from Boniface
VIII, but it has the character of a juridical code. Al-
p
2fl Schulte, I. c, pp. 31 f.; Laurie, 28 Sarti, I. c.t 1, 234 ft; ▼■
I. e.t pp. 171 ff. Schcrer, /. ft, I, 352; Laurin, I. e.,
2T Friedberg, Corpus Juris Can., 177.
II, 933 t
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gle
40 INTRODUCTION
though called Liber Sextus " and intended, as it were,
to be a continuation of the Gregorian Decretals, it is
I really an independent collection, consisting, like the first
authentic collection, of five books with their respective
titles divided into chapters.
Hence the mode of alleging this collection is the same
as that of the Gregorian compilation, with the sole differ-
ence that VI or 6° is substituted for X; hence: c. i,
6\ r, *=chap. I (Liceat), in the Liber Sextus, book I,
title 2 de Constitutione.
2. The juridical value of the Liber Sextus is nearly
the same as that of Gregory's Decretals, which were not
abrogated by this collection. But it invalidated all the
Decretals issued between Sept. 5, 1234, and Dec 24,
1294, and not inserted in the " Sextus " or reserved, i. e.$
indicated as such. The "Regular Juris" have no legal
value."
ARTICLE 4
CLEMENTINAS (1317)
t. As the troublesome times required, Clement V pub-
lished several constitutions, especially at the Council of
Vienne in France (1313). He had them collected later,
it seems, and sent to the two French universities of Or-
leans and Paris. This was after their promulgation at a
public consistory held in the castle of Monteaux (de
Montiliis), near Carpentras, in southern France. This
collection, for some reason or other, was revoked by
Clement himself, and only after his death (1314) were
these Decretals, which had meanwhile been revised by
" more skilful " hands, promulgated by his successor,
a» Schulte. I *., II, p. 4; Friedberg, C. J. C, II, 935 *•
§le
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
"
CLEMENTINAE 41
John XXII, in the Bull " Quoniam nulla," October 25th,
1317. This collection is styled in the manuscripts " Liber
Septimus," but owing to the influence of the glossators,
the title was soon changed into " Constitutiones Clemen-
tinae " or simply " Clementinae." 80
2. Matter, Arrangement and Legal Value.—
With the exception of two decretals, one of Urban IV
and one of Boniface VIII, all the "Clementinae" belong
to the first Pope of the so-called " Babylonian Captivity."
These decretals are, like the two preceding collections,
divided into five books, and these into titles and chapters,
the sum total of the latter being 106. The mode of
quoting the Clementinae is, with the exception of the
characteristic sign "Clem." the same as that of the
Gregorian or Bonifacian Decretals, vis.: c. 1, Clem. I, 2
de rescriptis = chapter 1, Clementinae, book i, title 2
de rescriptis ; or, as in the ancient canonists, cap. Abbates,
Clem, (de rescriptis, which is not seldom omitted).
John XXII in his Bull of publication commands the
addressees to receive these Decretals with good will
(prompto affectu) and to make use of them in future
"in the courts and schools" (in judiciis et scholis).
Hence the Clementinae enjoy the same authentic valor
as the decretals of Gregory IX and Boniface VIII. But
it must be added that the other decretals which issued
from the Apostolic See after the Bonifacian collection
but not inserted or mentioned in the Clementinae, did not
lose their legal value because the Clementinae contain
soCfr. Schulte, Quellen, IT, lection on account of aorae decretals
451 ft.; Corpus I wis Can., ed. being too long, othcra faulty, others
Friedberg, II, Pro]., pp. LVII ft", unsuitable, and that these mistakes
Joannes Anrfreae in his glossa ad were then corrected by " more
verbum " de rartero " in Const. skilled hands"; that Jolin XXII
" Quoniam nulla " narrates that changed them cannot be proved.
Clement V himself revoked the col-
Gw >gle
I , Original fro m
UNIVERSITY OF WISCONSIN
i
r
■
42 INTRODUCTION
no invalidating clause with regard to them, as was the
case in the Bull of Boniface VIII, " Sacrosanctae." 8l
ARTICLE 5
EXTRAV AG ANTES
1. Pope John XXII published several important con-
stitutions, touching chiefly upon beneficiary subjects, not
contained in the Clementinae and yet commented on by
the glossators. Thus "William de Monte Laudano had
furnished " glossae" on three decretals of the aforesaid
Pope: " Sedes aposiolica," " Suscepti reglmlnis/' and
" Execrabilis," issued in the first year of John's pon-
tificate (1317). Zen2elinus de Cassanis also composed
glosses on these three constitutions and, besides, on
seventeen others of the same Pontiff, in the year 1325.
These twenty decretals became known as the " Dccretales
extravagantes, quae emanaverunt post Scxtum," or later
as " Extravagantes Johannis XXII." They were divided
into 14 titles and 20 chapters**
2. These " Extravagantes" were published by John
Chappuis in 1501 and 1503, together with some other
decretals which had emanated from the Holy See, from
John XXII to Sixtus IV. Out of these materials Chap-
puis made a collection, which he called " Extravagantes
Communes'' in five books with titles and chapters.
However, the fourth book (De Matrimonio) is missing,
for lack of materials. The whole collection is poorly
digested and cannot claim authenticity as a collection,
though the decretals taken singly have the authority due
to pontifical laws, as far as they are still in force (v. g.f
" Ambitiosae" in III, 4).'
(13
Si I .nurin, /. r.f pp. 90t f. SB I .Turin, ■'. c, p. 302.
■2 Schulte, op. cit., II, 59 f.
►ogle
/".,., -J,-, Original from
UNIVERSITY OF WISCONSIN
THE CORPUS JURIS 43
Mode of quoting:
c. 2, Extr. Joannis XXII, tit. I (suscepti regiminis),
C. un. Extr. Cotnm. Ill, 4 (Ambitiosae) .
v-
s
-
ARTICLE 6
T
■
THE "COBPL'S JURIS CANONICI "
c
s
After having considered the several collections which
were all published after the art of printing had been
invented, cither in R\e or in three volumes, a word must
be added concerning the whole body of them, known as
" Corpus Juris Canonici."
1. " Corpus Juris" was a term applied at first to any
body of laws, and later, in the twelfth century, to the
collection of civil laws.8* In a Brief of Gregory XIII,
" Quum pro munere pastorali," July 1, 1580, the collection
containing the Decretum Gratiani, the Decretales Gre-
gorii, the Decretales Bomfacii, the Clemctttinae and the
two Extravagantes was styled " Corpus Juris Canonici."
Hence, in a wider sense, these five collections may be
said to constitute the Corpus.
In the strict sense, however, the title can be applied
only to the three authentic collections, viz.: to the Decre-
tals of Gregory IX and Boniface VIII, and the Clemen-
tinae. The nomenclature " Corpus Juris Canonici Clau-
suvri * is arbitrary and without foundation.85
2. If we regard the structure or make-up of the C. J. C.
in its strict sense, i. e.t of the three authentic collections,
we find inscriptions prefixed to the single titles as well
Si Kipp, Gesch. d. Qutllm d. tits" (BuUariftm, ed. Mechlin, 1826,
Rom, Rechtt, 1909, 168; v. Scherer, I, XIV); Laurin, /. c, pp. 19, 25,
1, 270. 22s t.
sa Benedict XIV, "Jam fert sex-
* x/\dL» Original from
oogle
UNIVERSITY OF WI5CON5I
44 INTRODUCTION
as to the chapters, which latter, moreover, have sum-
maries put immediately before the text.
a) Concerning the inscriptions above the titles there
is a twofold class. Some exhibit simply the subject
they treat of, z/. g.f De Consuetudine (I, 4), while
others are longer and offer a clause or sentence com-
plete in meaning, v. g.t " Ne sede vacante aliquid inno-
veHr" (X, III, 9). The former inscriptions have no
legal value, whereas the latter have.
b) The "summaria" placed at the head of nearly
every chapter are additions of the glossators and, there-
fore, destitute of legal value.
c) Neither legal nor historical merit can be attached
to the indications of the sources whence the composer
pretends to have borrowed his matter.
d) As to the text itself, juridical value can be attrib-
uted only to the pars decisiva or dispositiva, regardless
of whether the source is genuine or spurious, but not to
the narrative part or to the allegations of the contending
parties.36
3. Mention must be made of the various editions of
the Corpus Juris Canonici which are not all of equal au-
thority.
a) Authentic is the edition published after the commis-
sion consisting of six cardinals and fifteen "doctors"
had corrected fhe C. J. C. at the command of Gregory
XIII in Rome, in 1582." But the work of the " Correc-
tors Romani/' incomplete as it is, can claim only doc-
trinal value.89 However, the Roman edition had the
distinction that it could be quoted in the ecclesiastical
courts as well as outside of them.89
-
88 Wcrnz, Jus Decretalnim, I, 30 Greg. XIII., " Quum pro mu-
325 I. nere," July i, 1580; Fricdberg, II,
«7 Thcincr. /. ft. app. I, pp. 3 f. p. LXXXII.
K
>■ L-Ui n:i, I. C., p. 69.
jle
C^ ^ ^ -Ar* Original from
UNIVERSITY OF WISCONSIN
THE CORPUS JURIS 45
b) Of purely private authority were the editions made
by the brothers Pierre and Francois Pithou, at Paris
in 1687. The same holds good of the critical edition of
Justus H. Bohmer, Halle, 1747, whose "emendations"
are not always happy.*0 For official purposes these edi-
tions are useless.
Belter and worthy of attention is the edition which
-— Emil Frederick Richter published at Leipsic in 1839.
He used the Roman edition as basis and added textual
a
corrections of his own. This edition can be safely used
in practice, although it is not authentic.
-"""" A later critical edition is that of Emil Friedberg, pub-
■n
lished in two 4to volumes under the title, Corpus Juris
Canonki. Vol. I, 1879, contains the Dec return Magistri
Gratiani, Vol. II, 1881, the Decretals and Extrava-
gantes. This edition is based on extensive MS. re-
searches, but neglects the Roman edition and omits all
r
1 glosses, though inserting the partes dectsae.
40 Friedberg;, II, XLU.
G I Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
SECTION 3
SOURCES OF THE LAST PERIOD
1. After the golden age of Canon Law, resplendent
with works and authors some of whom shall he mentioned
later, there was a setting of the sun, until the Council of
Trent seemed to breathe new life into the half-motionless
frame of the Church at large and the skeleton of canonis-
tic science in particular.
This gathering of learned men had, of course, for its
chief aim not a reform of laws, but of morals. Still dis-
cipline and morals cannot easily be separated, and hence
we see that the Council, especially in its third period, is-
sued many important enactments bearing directly on
Canon Law. These decrees form a real source of Canon
Law. Pius IV confirmed them and ordained that, after
they had been duly promulgated in the city of Rome, legal
force should be attributed to them from the first day of
May, 1564.1
2. But, surprising though it be, it is a fact that, at least
to our knowledge, there exists no authentic collection of
these decrees. Some private editions were even placed
on the Index.
The most noteworthy editions are :
a) Aug. Barhosa's " Collectanea Bullarti aliarumve
Sutnm. PP. Cons tit utionum nee non Praccipuarum Dc-
cisionum, quae ab Apost. Sede et s* Congregationibus
1 Constitutions of Pius IV: "A"i- Lateran, St. Peter's, the Apost.
cnt ai sacTotHm," July 18, 1 64 . Chancery, the Camjio de' Fiurt; ex-
" Benedictus Dcui," Jon. 26, 1.^.4. ception was made for the " Ta-
— The promulgation was made at the raeuri " (e. I, seas. 34 de rcf. mat.).
46
od by GoOgle
% ,| , Original fro m
UNIVERSITY OF WISCONSIN
POST-TRIDENTINE SOURCES 47
S.R.E. usque ad a. idjj emanaverunt," Lyons, 1634
(formerly on the Index).3
b) John Gallem art's "Concilium Tridentinutn cum
Declarationibus Cardinalium ejusdem Interpretum," ed.
Guerra, Venetiis 1780, 2 Vols, (formerly on the Index).
c) Richter and Schulte's " Canones el Decreia Con-
cilii Tridentini ex ed. Rom. a. 1834 repetiti," Berlin, 1864
(repr. Naples, 1869).*
3. Towards the close of the sixteenth century an at-
tempt was made to gather the three authentic collections
of Gregory IX, Boniface VIII, and Clement V into one
body together with the decrees of the V Lateran and
the Tridentine councils. Cardinal Pinello offered an un-
digested digest, which he styled "Liber Septimus," to
Clement VIII, in 1598, whence it was also called:
"Ssmi. D. N. Clementis P. VIII Decretales." However,
the Pope declined the offer and Pinello's work, though
printed, was never promulgated.4
This was the last effort to codify the laws of the
Church, until Pius X, of happy memory (" Arduum
sane" March 19, 1904), instituted his commission, to
which we owe the New Code.
4. After the Council of Trent (1563) the legislative
activity of the Popes was by no means stayed. But this
period, owing to a more intensified centralization, made
it imperative for the Pontiff not to divide but rather to
distribute his power among various tribunals and con-
gregations which came into existence soon after the
Council. Thus the channel of laws, as it were, was two-
fold: constitutions and decisions,
(M
2H. Rcusch, Per Index, II, 74. lished by the GorresgeseUachaft,
SConct-rning the history of the Herder, 1901 ::.
Council »f Trent see Pallavicini, 4 Sentis, Clem, VIII. Decrttalts,
Istoria <-.'■/ Conciho d\ Trento, 1666; 1870; v. Scherer, I, 275.
and Concilium Tridentinum, pub-
t I Original fro ni
.OO^lt UNIVERSITY OF WISCONSIN
48 INTRODUCTION
a) The Constitutions emanated chiefly in the form of
Bulls, sometimes also in the form of Briefs, directly from
the Pontiff and touched upon matters of importance for
the Church at large. These have so far not been pub-
lished in an authentic collection. All the so-called Bui-
laria, with the exception of that of Benedict XIV,S are of
a purely private character. The chief Bullaria are:
a) L. Cherubini's Bttllarium seu Collectio Diversa-
runt Constitutionum Multorum PonHficum a Gregorio
VII usque ad Sixtutn V, Rome, 1586. The second and
third editions of this work comprised the constitutions
of the Popes from Leo I to Paul V, to which Angelus
a Lantusca and John Paul a Roma added those from
Urban VIII to Clement X (Rome, 1672).
And. Barberi and Alex. Spetia published the so-
called Continuatio Bullarii (Clement XIII to Gregory
XVI), Rome, 1825-57.0 Here must also be mentioned
the Acta Pii IX, 1854 fT. and the Acta Leonis XIII, 1881
ff., which, however, appear to lack authentic character,
whilst the Acta Pii X (Vatican Press, 1907 fT.) are au-
thentic and official.
P) Bullariutn Luxemburgense (first printed at Ge-
neva), or Bullariutn Magnum Romanum a Leone I ad
Benedictum XIV, 1717-28.
y) Turinense (Al. Tomasetti), Diplomatum et Privi-
leg. S.R. Pont, a Leone I ad Clement, XII editio, 1857-72,
without critical discernment and with a great number of
printing errors.
Mention must here be made of P. Coustant, Epistolae
RR. Pontificum a Clem. I ad Innoc. I, Paris, 1721 ; And.
Thiel, Epistolae RR. PP. Genuinae ab Hilario ad Pela-
gium II, 1868. Of value are also the Regesta edited by
l" Jam fere sextus," 1746, sent e Coqvtiines, BMllarum Atnpiissima
to Bolosrna University. Collectio, Rome, 1739-44-
I Originalfrom
1 K H 'gie UNIVERSITY OF WISCONSIN
POST-TRIDENTINE SOURCES 49
Jaffe, Lowenfeld, Pflugk-Harttjng, Ewald-Hapt-
mann (Greg. L), and P. F. Kehr.
b) The decrees and decisions of the Roman Congrega-
tions, especially those of the Congr. of the Council, were
collected and published. The only authentic collections,
however, are the following:
S. Rit. C. Decreta Authentica, Rome, 1898-1912, 6
Vols.
Collectanea S. C. de Propaganda Fide, Rome, 1907, 2
Vols.
The collection of decrees of the Congr. of the Council,
which ran first under the name of " Libri Decretorum,"
from 1573 on were gathered in the Thesaurus Resolu-
tionum S.C.C. 1718 (resp. 1745) to 1908, in 167 vols.
Strictly private collections are Zamboni's Coll. Declara-
tionum S.C.C, Atrebati, 1868, 4 Vols.; Pallotini, Coll.
Omnium Concl. et Resolv., 1564-84 (alphabetic) ;
Lingen and Reuss, Causae Selectae, Ratisbon, 1871.
There are also many scattered volumes of decisions of
the S. R. R.7
Q
STUDY OF CANON LAW
It would be worth while to enter the studio of one of
those learned canonists of the past in order to observe
his way of studying, not only Canon Law, but also civil
law, from which was borrowed the method of applying
Canon Law (" ordinem placitandi ex legibus"). Then
we might enter a law school and learn their manner of
teaching. There, in the midst of hundreds of disciples,
7 Besides the authors mentioned Bononiensis Profejsoribvs, Rome,
above, the student may consult: 1768, t. I; Savigny, Geschichte des
Doujat, Praenotionum Canonicantm Rom. Rechts im Mittelalter, 1834-
libri qMinque, Venice, 1769; Sarti, 54, Vols. Ill and IV.
O. Cam*l., Dt Claris Archiffi'mnasii
ioi >gle
Original fro ni
UNIVERSITY OF WISCONSIN
50 INTRODUCTION
eagerly intent on the teacher's words, a Decretum might
be seen on the professor's table. First, with a sonorous
voice, he reads the summary of the chapter he is about
to expound. After that follows the reading of the litera,
i. e., the text of the chapter (or canon), with distinct ac-
centuation and more slowly, that the students might be
enabled to take down the wording in case they could not,
because of poverty (books at that time were rare and
expensive), or for other reasons, acquire the volume.
Then the litera, if necessary,8 is corrected, which was
called emendatio literae. Hereupon the proper work of
the teacher began — the exposition or expounding of the
canon. This work comprised different acts: Contradic-
tions were pointed out and solved by the method assigned
by the " magister," then followed casuistry and corrobora-
tion of the explanation given and other arguments taken
SI
from the Decree or other sources.
The students under the supervision of the teacher are
busy at work, engaged partly in repetitions, partly in dis-
putations. The former are much like our modern " sem-
inars," in which postgraduates or aspirants to the laurea
expound some particular text more elaborately. Dispu-
tations were held diebus Mercurii (Wednesdays), and
conducted in scholastic style — sometimes, we fear, to
extravagance.
This method of training, if kept up from six to ten
years, was apt to produce thorough scholars and future
41 masters," which title towards the end of the twelfth
century was changed to " doctors." Note must be taken
of the fact that the universities, being few in number,
attracted the cream of professors and were efficient in
maintaining a choice staff. The clerical character of
8 Cfr. Huffaccio'i Clossa on c. 31, C. a, q. 6.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
a
N
POST-TRIDENTINE SOURCES 51
these flourishing schools, endowed by Popes and Bishops
with benefices and other sources of revenue, was carefully
maintained and proved no hindrance to effective teach-
ing, intense study, and good morals.8
• Cfr. Schulte, Quellen, I, pp. in ff. ; 196; II, pp. 214 f., 493, etc.
■■dbyC- jle
I , Original fro ni
UNIVERSITY OF WISCONSIN
SECTION 4
THE GLOSSATORS
If we call the epoch extending from the appearance of
Gratian's Dec-return to the Council of Trent the period of
the Glossators, we look to the majority of writers (de-
nontinatio fit a potiori) without intending to exclude other
writers and writings of a different kind.
i. Mention was made of the method the teachers were
D
wont to employ in school. It was but natural that the
work of the school should not be confined within the
school-walls but also prove a fertile soil for literary
products. These are, to a great extent at least, still pre-
served, either in the form of Glossae, or in the more
stately shape of Sumtnae and Tractatus.
In order of time the Glossae were the first literary out-
put of the followers of the Master. A gloss : or verbal
explanation was generally placed above the word to be
explained, and therefor, called glossa interlinearis. Not
rarely these glosses were placed on the margin or at the
bottom of the page (glossae tnarginales). If continu-
ously applied to the whole text of the Decree or the De-
cretals, such a series was styled apparatus.
Some authors, v. g. Bcrnardus Papiensis, preferred
another way, viz.: that of writing commentaries, called
Summae. These either followed the order of the text
s
l From the Greek yXuffera (Wn- dieitur glosta, i. *., lingua." Doujal,
Qua) ; " dieitur expositio sententiae t. c, 1, V. c. a. n. a.
litiram continuans et erPonens, %nde
53
>Ie
I t " riginal from
UNIVERSITY OF WISCONSIN
THE GLOSSATORS 53
a>
(Decree or Decretals) closely and uninterruptedly, or
left the order of the text and exhibited only a summary,
using the text for the sake of proof. In this lat-
ter case they might just as well be called Tractatus, al-
though these, properly speaking, were rather essays on
some particular subject (v. g. Durantis* " Ordo Judicia-
rius"). It is sometimes difficult to distinguish between
Sumtnae and Tractatus.2 The glossators had the cus-
tom of distinguishing their glosses from those of others
by certain initials or sigla, v. g. Huguccio used H., Bar-
tholomaeus of Brescia, B. or Bart., etc.
2. We will name some of the most noteworthy glossa-
tors and authors of canonical works, retaining their
Latin names, as they were then known. To the Decretum
Joannes Faventinus composed an apparatus about
1179-87. Cardinaus introduced the jus civile into the
Decree. Bazianus (+ 1197) in his glosses employed
the decretals. The famous " Glossa Ordinaria " was
furnished by Johannes Teutonicus, about the year 1215.
A rich glossary based upon the preceding and on the
compilations is that of Bartholomaeus Brixiensis,
about 1240-45 ; it is the last gloss on the Decretum?
The Decretales Gregorii were glossed by Vincentius
Hispanus and Bernardus Parmensis de Botone
(+ 1263), whose glossa is called "ordinaria*'
The " Liber Sextus " and the " Clementinae " were
adorned with the glosses of Joannes Andreae (+ 1348),
one of the most illustrious canonists, " fons et tuba juris/'
as he was called.*
3. Summae and Tractatus. — An entire catalogue
would be necessary to do justice to the galaxy of
writers who flourished from the twelfth to the fifteenth
2 Schulte, Quelle*, I, 219. * His daughter Novella also taught
%Ib., I, 145. 19*1 17*; H, 86 f. Canon Law,— but behind a curtain!
p
* I ^ Original from
lOOglt UNIVERSITY QFWI5C0NSIN
54 INTRODUCTION
century. We select the best known without wishing to
detract from the fame of the others. Summa Magistri
Rolandi ( Bandinelli ), later Pope Alexander III ; * Summa
Rufini, about Ii66; Summa Stephani Tomacensis
(1203) ; Summa Simonis de Bisiano, made about 1174-
79; Summa Huguccionis, about 1187; Summa Bernardi
Papiensis, about 1191-98; this is a sort of compendium
of Canon Law."
What were called Lecturae were in fact commentaries,
and might also be styled Summae. Such were com-
posed by Innocent IV (Sinibaldus Fliscus, 1243-54),
" Apparatus in quinque libros Decretalium "; Hostiensis
(Henricus de Scguesia, -|- 1271), " Lectura in Gregorii
IX Decretales"; Abbas Antiquus, "Lectura seu Appa-
ratus ad Decretales Gregorii IX," composed about 1270;
JECIDIUS DE FuSCARARIIS (1289) ; JOANNES GARSIAS HlS-
panus (c. 1282) ; GuiDO de Baysio, " Commentarius in
Sextum" (c. 1299-13^2); Guilielmus de Monte
Laudano (1343), "Lecturae super Sextum, Clemen-
tinas et tres Extravagantes Joannis XXII" ; Zenzelinus
de Cassanis (the same). Of great authority are the
following: Petrus de Ancharano (1416), Francis-
cusdeZabarellis (1417), Antonius de Butrio (1408),
Joannes ab Imola (1436), and especially Panormi-
tanus, also called Nicolaus de Tudeschis, O.S.B., Abbas
Modernus or Abbas Siculus ( + 1453),— all of whom
composed commentaries on the Decretals and the Clemen-
tinae.
The following works rather resemble treatises or es-
says:
Bernardus Papiensis, "Summa de Matrimonio,"
"Summa de Electione ; " Tancred, "Summa de Sponsa-
libus et Matrimonio/' and " Ordo Judiciarius; " Wil-
I Ed. Thaner, 1874- • Ed. Laspeyret, i860.
|M
■--.
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
THE GLOSSATORS
55
-■
liam of Durant (1296), called M Speculator," " Specu-
lum Legatorum" " Speculum Judiciale" " Rationale
Divinorum Ofiiciorum." T
Some works are especially concerned with the papal
power, which was, at times, rather insipidly defended.
To this class belong: Joannes Parisiensis (+ r3o6)»
" Tractatus de Rcgia Potentate et Papali"; -^gidius
Romanus (Colonna, + 1315), " De Excellentia Pon-
tificatus/' "De Potestate Ecclesiastica libri tres," " De
Regimine Principum"; Augustinus Triumphus
(+1328), "Sumtna de Potestate Ecclesiastica";0 Ro-
deric Sancius de Arevalo (+ 1470), " Defensorium
Status Ecclesiastici," " De Monorchia Or bis" (the Pope
is the monarch of the whole universe) ; John a Tur-
recremata (-f 1468), " De Potestate Papae et Concilii
Generalis Auctoritate;" Thomas de Vio (Cajetan)
(+ r534)» " De Auctoritate et Potestate Rom. Pont.,"
" De Auctoritate C ' onciliorum." Of some interest are the
works of Dominicus de Dominicis (+ 1478). " De Re-
formationibus Romanae Curiae," " De Cardinalium Elec-
tione et Legitima Creatione" etc.9
7 Edited, respectively, hy Wunder-
lich, 1841, and Bergmann, 1842.
■ Cfr. Scbolr, Publuuttk sur Zt*
Philipps des Schotun. K.-R. Ab-
hnndl. v. Stutx, 190J, 618.
0 Cfr. Schulte, Qnelltn, H, pas-
►ogle
Original from
UNIVERSITY OF WISCONSIN
p
SECTION 5
POST-TRIDENTINE LITERATURE
The reformation initiated by the Council of Trent was
vigorously carried out by the later Popes, who proved
themselves excellent legislators. The tendency of gravi-
tation towards the centre became more accentuated. This
is very noticeable in Canon Law. Besides this centraliz-
ing tendency there are two other characteristics which
single out this period from those preceding. Humanism
invaded the realm of law on a side where it was particu-
larly vulnerable by introducing historical criticism. This
operation was no detriment to the science, but it might
have proved dangerous in the hands of an unskilful sur-
geon. It has produced works of great and lasting merit.
Another innovation, less necessary and rather cumber-
some, is the moralising strain now brought into Canon
Law. This was a disadvantage because it obscured the
character of the Church as a public society and made the
law appear to be an appendix of the confessional. The
moralists entered into the vineyard of Canon Law and —
but melius est silere quant loqui.
The following list may serve students especially in their
selection of canonical books. The works may be divided
into historico-critical writings, commentaries, and man-
uals; those which, for one reason or another, are pre-
ferred at the Roman Curia are marked with an asterisk.
56
>Ie
% ,] , Original fro rn
UNIVERSITY OF WISCONSIN
POST-TRIDENTINE LITERATURE 57
a
I. HISTORICO-CRITICAL WRITINGS
Besides the authors mentioned above the following may
be recommended :
Card. John Baptist Pitra, O.S.B., "Juris Ecclesia-
stici Graecorum Historic et Monumental* Rome,
1864-68; " Analecta Novissima Spicilegii Sole sinensis''
Tusculi, 1885; L. Thomassin, " Vetus et Nova Eccles.
Disciplina circa Beneficial Magontiaci, 1787; E. Loen-
ing, Geschkhte des deutschen Kirchenrechts, 1878, 2
vols, (still a standard work).
■
2. commentaries
Although not a commentary in the proper sense, yet
as embracing almost the whole range of Canon Law, we
must mention the works of the " Princeps Canonista-
rum"1 Benedict XIV, whose Opera Omnia (Prati,
1839 ff.) are a rich source of information.
A. Barbosa, Opera Omnia, Lugdun., 1660.
C. S. Berardi, " Commentaria in Jus Eccl. Universum/'
Taurini, 1766 (critical).
De Angelis, " Praelectiones Juris Canonici" Rome,
1877 ff-
L. Ferraris, " Prompta BibUotheca Canonica" etc.,
various editions, the latest by J. Bucceroni, S.J., Romae,
1885-99, 9 Vols., but with little improvement as to dates
of the decisions of the S. Congregations.
♦Card. Vincent Petra (-f 1747), " Commentarxa tn
Constitutiones Apostolicas" Romae, 1705-1726, 5 Vols.,
besides " De S. Poenitentiaria A post oik a," 1712.
E. Pirhing, S.J., " Universum Jus Canonicum" Dill-
ingae, 1674.
1 Cfr. Hurter, Nomtndator, 3rd «d-, Innsbruck, 1910. Vol. IV, col.
1595 *iq.
.'Ie
C* ^ -. iL» Original from
UNIVERSITY OF WISCONSIN
■
58 INTRODUCTION
Pichler, S.J., "/us Can. Univcrsum," Ingolstadii,
1735-
*Anacletus Reiffenstuel, O.F.Min., "Jus Canoni-
cum Univcrsum" Antwerpiae, 1743, 3 Vols.
*John Bapt. RlGANTI, u Commentary in Regulas,
Constitutiones et Ordinationes Cancellariae Apostolicae,"
Romae, 1744 (an important work for the Rules of the
Apostolic Chancery).
Santi-Leitner, * Praelectiones Juris Canonici" Ra-
tisbonae, 1898 f.
*F. Schmalzgrueber. S.J., " Jus 'Eccl. Uniuersum,"
Romae, 1843 ff-» I2 Vols.
♦Gonzalez Tellez, " Commeniaria perpetua in singu-
los textus quinque lib. decretal. Gregorii IX," Lugduni,
1673.
Wernz, S.J., "Jus Decretalium" Romae, 1898 ff.
John Bapt. Card. De Lcca (+1683), "Theatrum
Veritatis et Justitiac " (a prolix work of motley content),
Romae, 1671 f., 18 Vols.
3. manuals
Aichner, " Compendium Juris Eccl.," Innsbruck, 1895.
J. Devoti, " Juris Canonici Universi Publ. et Privati
libri quinque," Romae, 1803, 3 Vols, (still useful).
F. Heiner (S.R.R. Auditor), " Katholisches Kirchen-
rccht,'r Paderborn, 1897.
Jos. Laurentius, S.J., " Institutiones Juris Ecclesia-
stici," Freiburg, 1903.
G. Phillips, " Kirchenrecht," 1845 ff., 8 Vols.
Vox Scherer, " Handbuch d. Kirchenrechts," Graz,
1886, 2 Vols, (incomplete, but very thorough and criti-
cal).
ogle
£ * ^ -. %\s* Original from
UNIVERSITY OF WISCONSIN
POST-TRIDENTINE LITERATURE 59
a
J. R Schulte, "Lehrbuch d. Kath. Kirchenrechts,"
1863.
S. B. Smith, "Elements of Ecclesiastical Law," 1891,
3 Vols. These we have frequently consulted.
It may be permitted to add a few Benedictine authors.
Placidus Boekhn (-f- 1752), " Cotnmentarius in Jus
Canonicum Universum," 1735 & (commentary-like and
extensive ) .
*Lud. Engel (+ 1674 at Melk in Austria), "Colle-
gium Univcrsi Juris Canonici," Salisburgi, 1671-74; ID-»
" Tractatus de Privilegiis et Juribus M onasteriorum"
ibid.
Martin Gerbert (S. Blasii, +1793), " Principia
Theoriae Canonicae" 1758; " De Communione Potesta-
tis Ecclesiasticae inter Sutnmos Ecclesiae Principe s et
Episcopos" 1761 ; " De Legitima Ecclesiastica Potestate
circa Sacra et Prof ana," 1761.
Rob. Konig (+ 1713), " Principia Juris Can.'* Salis-
bury, 1691-97.
Maurus Sciienkl (■+- 181C), " Institutiones Juris
Eccl. Gertnanlae Accommodatae," Ingolstadii, 1760;
Ratisbonae, 1853.
♦Francis Schmier ( -|- 1728), " Juris prudentia Cano-
nic o-C Wilis," Salisburgi, 1716.
Coel. Sfokdrati (+ 1696), "Regale Sacerdotium R.
Pontifici Assertum," 1684; "Gallia Vindicate? S. Galli,
1687.
Greg. Zallwein (+ 1766), "Principia Juris Ecclesi-
astici Universalis et Particul. Germaniae" 1763 (con-
sidered one of the best manuals in its day).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
p
|M
'■-.
CHAPTER V
OLD AND NEW LAW
Our gloriously reigning Holy Father Benedict XV, in
his Bull of promulgation, refers to the Motu proprio
" Arduum sane," which was issued by Pius X, March 17,
1904, and gave rise to the present Code. In that memor-
able pronouncement the late Pontiff stated the reasons
which prompted him as the supreme Pastor of souls,
who has the care of all the churches, to provide for a new
codification of ecclesiastic laws, with a view " to put
together with order and clearness all the laws of the
Church thus far issued, removing all those that would
be recognized as abrogated or obsolete, adapting others
to the necessities of the times, and enacting new ones
in conformity with the present needs." We leave it to
the reader and the watchmen of Sion to judge whether
this purpose has been achieved. A fair-minded and
unbiassed critic will certainly acknowledge the juridical
genius of H. E. Cardinal Gasparri, who bore the heaviest
part of the burden, and of his zealous collaborators in
getting up, within the short space of twelve years, a
collection covering centuries of legislation and volumes
of laws and commentaries. Those who will have to make
practical use of the New Code will not fail to admire,
first and above all, its brevity as well as the convenient
arrangement of the matter and the clearness of the style.
The canonist is grateful and in his heart will muse over
Virgil's verse, " Redeunt Saturnia regna/' because, after
60
jle
I , Original from
UNIVERSITY OF WISCONSIN
"
OLD AND NEW LAW 61
a long period of relative neglect, his office again becomes
important and, we dare say, necessary. For although
the advantages of the New Code are undeniable, a com-
mentary is necessary in order to grasp the full meaning
of the text. This is evident from the fact that the Code
embodies "nova et veiera."
The old laws must be explained, according to the gen-
eral rules of interpretation indeed, but also in harmony
with the traditional significance that can be gathered
only from an acquaintance with bygone ages and authors.
This is plainly stated in canon 6, which reads:
11 The Code for the most part retains the discipline
thus far in use, although it also offers opportune
changes. Hence: i.° All laws, both universal or
particular, which are opposed to the laws prescribed in
this Code, are abrogated, with the exception of those
particular laws for which express provision is made."
The term law is to be taken in the strict sense of a
written enactment. Privileges are not included, for they
are special,, not particular, laws. The provision con-
cerning particular laws must be expressly mentioned, at
least in a general way. Cfr. Can. 1253 concerning feast-
days, which is specially applicable to our country.
" 2.0 Canons which state the old law unchanged,
must be understood according to the authority of the
old law and therefore according to the interpretations
given by recognized authors.
" 3.0 Canons which conform to the old law only in
part, must be understood according to the old law as
far as they agree with it ; in so far as they differ from
it, they must be explained in their own light.
" 4.0 When there is doubt whether an enactment of
the Code differs from the old law, the latter must be
upheld."
,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gk
62 INTRODUCTION
These rules not only establish the continuity of the
law, but also offer a key to the interpreter. It is evident
that a society which has lasted for centuries cannot en-
tirely overthrow and set aside all of its old laws.
Hence we find throughout the Code not only allusions
to, but almost verbal restatements of, the old law. When
the Code says " ex Integra," which we translate by w un-
changed," this term must be taken in its substantial, not
verbal meaning. Thus, concerning postulation, the Code
(Can. i8o, § 2) is almost a repetition of the text of the
Corpus Juris, though not ad verbum.
When a canon is divisible, i. e., when it partly rehearses
an old law, and partly gives new regulations, the inter-
pretation and application must necessarily conform to
the old law, as well as to the ratio legis and the wording
of the newly enacted part, as shall appear more fully in
the course of this Commentary. It were useless to set
forth examples which occur in nearly every canon. But
these rules show and clearly prove that even the new Code
does not make the authority of the school superfluous or
useless.
" 5.0 All penalties not mentioned in this Code, of
whatever denomination, spiritual, temporal, medicinal
or vindictive (so called), whether ferendae or latae
sententiae, are hereby abrogated."
The " Apostolicae Sedis" of Pius IX (1868) had a
similar purpose, *. e., to reduce the penal Code to a unit
and to certain limits. The new Code embodies another
attempt to simplify the penal law.
" 6.° As regards the other disciplinary laws thus far
in use, those that are neither explicitly nor implicitly
contained in this Code must be held to have lost obliga-
tory force, unless they are found in approved liturgical
ogle
k %\^ " riginal from
UNIVERSITY OF WISCONSIN
OLD AND NEW LAW 63
St
books or are part of the divine law, either positive or
natural."
This is another guiding line along which the interpreter
has to move. With the exception of natural and divine
positive law and such rules as arc contained in the ap-
proved liturgical books (the Pontifical, the Missal, the
Roman Ritual, and the Ceretnoniale Episcoporum) all
disciplinary laws made by human authority cease to be
binding. The commentator may take illustrations from
them, but is not allowed to confound them with the exist-
ing law or to represent them as still binding.
Having before our mind these wise rules, we shall, with
God's help, endeavor to comply with them scrupulously
and to follow the injunction of the S. C. Sem. ct Stud.,
Aug. 7, 1917, concerning the teaching of Canon Law.1
It remains to point out the division of the new Code.
It consists of five books, doubtless as a remembrance of
the Decretals. However, a mere glance at the Code will
convince the student that the real principle of division is
the threefold time-honored one according to personae,
res, and actiones. The first book contains all that was
embraced in the first book of the Decretals and is here
called " general rules," whilst the fourth and fifth books
form one subject, viz.: the actiones, with this sole differ-
ence that procedure is separated from the penal code.
The second book is entitled De Personis, and the third,
De Rebus. But the ancient trilogy certainly is apparent
in the new Code.
3 Acta Ap. Secis, IX, p. 439.
G| Original from
OOglt UNIVERSITY 0FWI5C0NSIN
■
CONSTITUTION " PROVIDENTISSIMA " OF
BENEDICT XV, PROMULGATING
THE NEW CODE
To Our Venerable Brethren and Beloved Sons the Patri-
archs, Primates, Archbishops, Bishops, and Other Or-
dinaries, and also to the Professors and Students
of the Catholic Universities and Seminaries
BENEDICT, BISHOP
SERVANT OF THE SERVANTS OF GOD
FOR A PERPETUAL REMEMBRANCE OF THE MATTER
The most provident of mothers, the Church, enriched
by her Divine Founder with all the notes befitting a per-
fect society, from the very beginning of her existence,
when, obeying the mandate of the Lord, she commenced
to teach and govern all nations, undertook to regulate
and safeguard the discipline of the clergy and the Chris-
tian people by definite laws.
In process of time, however, particularly when she
achieved her freedom and grew greater and more wide-
spread from day to day, she never ceased to develop
and unfold the right of making laws, which belongs
to her by her very constitution. She did this by pro-
mulgating numerous and various decrees emanating from
the Roman Pontiffs and Ecumenical Councils, as events
and times suggested. By means of these laws and pre-
cepts she made wise provision for the government of the
64
ogle
£ * ^ ^ %\s* Original fro m
UNIVERSITY OF WISCONSIN
BULL OF PROMULGATION 65
clergy and Christian people, and, as history bears witness,
wonderfully promoted the welfare of the State and civili-
zation. For the Church was at pains not only to abro-
gate the laws of barbarous nations and to reduce their
rude customs to civilized form, but, trusting in the assist-
ance of the divine light, she tempered the Roman law
itself, that wonderful monument of ancient wisdom,
which has deservedly been called " written reason," and,
having corrected its defects, perfected it in a Christian
manner to such a degree that, as the ways of public and
private life tended to greater perfection, abundant ma-
terials were supplied for the making of new laws both
in the Middle Ages and more recent times.
However, owing to changes in the circumstances of the
times and the necessities of men, as Our Predecessor of
happy memory, Pius X, wisely declared in his Motu
proprio " Arduum sane" of March 17, 1904, Canon Law,
no longer achieved its end with sufficient speed. For in
the passing of centuries a great many laws were issued,
of which some were abrogated by the supreme authority
of the Church or fell into desuetude, while others proved
too difficult to enforce, as times changed, or ceased to be
useful to the common good. To these objections must
be added that the laws of the Church had so increased in
number and were so separated and scattered, that many of
them were unknown, not only to the people, but to the
most learned scholars as well.
■
Moved by these reasons, Our Predecessor of happy
memory, at the very beginning of his Pontificate, con-
sidering how useful it would be for the restoration and
strengthening of ecclesiastical discipline, if the serious
inconveniences enumerated above were removed, decided
to gather together and to digest with order and clearness
all the laws of the Church issued down to our own day,
G] Original from
OOglt UNIVERSITY 0FWI5C0NSIN
66 INTRODUCTION
removing all that were abrogated or obsolete, adapting
others as far as needful to the necessities and customs
of the present time/ and making new ones according as
the need and opportunity should direct. When, after
mature deliberation, he put his hand to this most diffi-
cult enterprise, he deemed it necessary to consult with
the Bishops, whom the Holy Ghost has chosen to rule
the Church of God, and to ascertain fully their views
on the matter. Accordingly, he directed that, by letter
from the Cardinal Secretary of State, all the Archbishops
of the Catholic world should be invited to consult with
their suffragan Bishops and other Ordinaries obliged to
take part in Provincial Councils, and, after such consulta-
tion, to report to this Holy See what parts of the existing
ecclesiastical law in their opinion stood in need of change
or correction.*
Then, after having called upon numerous experts in
Canon Law residing in Rome and other places to collab-
orate in the undertaking, he commanded Our Beloved
Son, Cardinal Gasparri, then Archbishop of Cacsarea, to
direct, perfect, and, as far as necessary, complete the
work of the consultors. He also instituted a Commis-
sion of Cardinals, naming as its members Cardinals Dom-
inic Ferrata, Casimir Gennari, Benjamin Cavicchioni,
Joseph Calasanctius Vives y Tuto, and Felix Cavagnis,
who, in accordance with the suggestions of Our Beloved
Son Cardinal Gasparri, should diligently examine the
proposed canons, and change, correct, and perfect them
as their judgment directed.8 When these five men passed
away, one after the other, there were appointed in their
places Our Beloved Sons Cardinals Vincent Vannutelli,
1 Cfr. the Motu proprio "Arduum 2 Cfr. the Epistle " Percratum
sane." mihi," of March 25, 1904.
8 Cfr. the Motu proprio " Arduum sane."
ogle
£ " ^ v -iL-. Original from
UNIVERSITY OF WISCONSIN
BULL OF PROMULGATION 67
Cajetan De Lai, Sebastian Martinelli, Basil Pompili,
Cajetan Bisleti, William Van Rossum, Philip Giustini,
and Michael Lega, who have admirably completed the
work confided to them.
Finally, after again consulting the prudence and au-
thority of all his Venerable Brethren in the Episcopate, he
directed that to them and to all the Superiors of the
Regular Orders, who are accustomed to be summoned
to an Ecumenical Council, should be sent copies of the
new Code finished and corrected, before promulgation,
in order that they might freely manifest their observations
on the proposed canons.4
But since, meanwhile, to the sorrow of the whole Cath-
olic world, Our Predecessor of immortal memory passed
out of this life, it became Our duty, as soon as by the
secret will of Providence we began Our Pontificate, to
receive with due honor the views thus collected from
every quarter of those who with Us form the teaching
Church. Then finally we acknowledged in all its parts,
approved, and ratified the new Code of the whole of
Canon Law, which had been petitioned for by many Bish-
ops at the Vatican Council, and begun more than twelve
years ago.
Therefore, having invoked the aid of Divine grace, and
relying upon the authority of the Blessed Apostles Peter
and Paul, of Our own accord and with certain knowledge,
and in the fullness of the Apostolic power with which
we are invested, by this Our Constitution, which we wish
to be valid for all time. We promulgate, decree, and order
that the present Code, just as it is compiled, shall have
from this time forth the power of law for the Universal
Church, and We confide it to your custody and vigilance.
4Cfr. the Epistle " De Mondato," of March 30, 191a.
►ogle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
68 INTRODUCTION
a
But in order that all concerned may be able to have a
thorough knowledge of the regulations of the Code before
they begin to be binding, We ordain that they shall not
come into effect until Pentecost day next year, {, 0., May
19th, 1918.
Notwithstanding all contrary regulations, constitu-
tions, privileges, even those worthy of special and individ-
ual mention, and notwithstanding contrary customs, even
though they be immemorial, or whatever else may run
counter to this Constitution.
For no one, therefore, is it lawful willingly to contra-
dict or rashly to disobey in any way this Our constitu-
tion, ordination, limitation, suppression or derogation.
If any one should dare to do so, let him know that he will
incur the wrath of Almighty God and of the Blessed
Apostles Peter and Paul.
Given at Rome, from St. Peter's, on the Feast of Pente-
cost of the year one thousand nine hundred and seven-
teen, the third year of Our Pontificate.
Peter Card. Gasparri,
Secretary of State
O. Card. Cagiano de Azevedo,
Chancellor of the H. R. Church.
p
;Ic
k ,1,., Original from
UNIVERSITY OF WISCONSIN
N
■
PROFESSION OF FAITH PRESCRIBED BY THE
NEW CODE
Ego N, firma fide credo et profiteor omnia et singula,
quae continentur in symbolo Fidei, quo sancta Romana
Ecclesia utitur, videlicet: Credo in unum Deum, Pa-
trem omnipotentem, factorem caeli et terrae, visibilium
omnium et invisibilium. Et in unum Dominum Iesum
Christum, Filium Dei Unigenitum. Et ex Patre naiumt
ante omnia saecula. — Deum de Deo, lumen de lurnine,
Deum verum de Deo vero. Genitum non factum, consub-
stantialem Patri : per quern omnia facta sunt. Qui prop-
ter nos homines, et propter nostram salutem descendit
dc caclis. Et incarnatus est de Spiritu Sancto ex Maria
Virgine, et Homo factus est. Crucifixus etiam pro nobis,
sub Pontio Pilato: passus, et sepultus est. Et resurrexit
tertia die, secundum Scripturas. Et ascendit in caelum :
sedet ad dexteram Patris. Et iterum venturus est cum
gloria iudicare vivos, et mortuos: cuius regni non erit
finis. Et in Spiritum Sanctum, Dominum et vivificantem :
qui ex Patre Filioque procedit. Qui cum Patre et Filio
simul adoratur, et conglorificatur : qui locutus est per
prophetas. Et Unam, Sanctam, Catholicam et Apo-
stolicam Ecclesiam. Confiteor unum Baptisma in remis-
sionem peccatorum. Et exspecto resurrectionem mor-
tuorum. Et vitam venturi saeculi. Amen.
Apostolicas et ecclesiasticas traditiones, reliquasque
eiusdem Ecclesiae observationes et constitutiones firmis-
sime admitto et amplector. Item sacram Scripturam
iuxta eum sensum, quem tenuit et tenet sancta Mater
6p
I Original from
1 K H >gie UNIVERSITY OF WISCONSIN
70 INTRODUCTION
Ecclesia, cuius est iudicare de vero sensu et interpreta-
tione sacrarum Scripturarum, admitto ; nee earn unquam,
nisi iuxta unanimem consensum Patrum, accipiam et
interpretabor.
Profiteor quoque septem esse vere et proprie Sacra-
menta novae legis a Iesu Christo Domino nostro instituta,
atque ad salutem humani generis, licet non omnia singulis,
necessaria, scilicet, Baptismum, Confirmationem, Eucha-
ristiam, Poenitentiam, Extremam Unctionem, Ordinem
et Matrimonium; illaque gratiam conferre, et ex his Bap-
tismum, Confirmationem et Ordinem sine sacrilcgio rcitc-
rari non posse. — Receptos quoque et approbatos Ecclesiae
Catholicae ritus in supradictorum omnium Sacramen-
torum sollemni administratione recipio et admitto. —
Omnia et singula quae de peccato originali et de iustifica-
tione in sacrosancta Tridentina Synodo definita et de-
clarata fuerunt, amplector ct recipio. — Profiteor paritcr in
Missa offerri Deo verum, proprium et propitiatorium
Sacrificium pro vivis et defunctis; atque in sanctissimo
Eucharistiae Sacramento esse vere, rcaliter et substan-
tialiter Corpus et Sanguinem una cum anima et divinitate
Domini nostri Iesu Christi, fierique conversionem totius
substantiate panis in Corpus, et totius substantiae vini in
Sanguinem, quam conversionem Catholica Ecclesia Trans-
substantiationem appellat. Fateor etiam sub altera tan-
turn specie totum atque integrum Christum, verumque
Sacramentum sumi. — Constanter teneo Purgatorium
esse, animasque ibi detentas fidelium sufTragiis iuvari.
Similiter et Sanctos una cum Christo regnantes veneran-
dos atque invocandos esse, eosque orationes Deo pro
nobis offerre, atque eorum Reliquias esse venerandas.
Firmiter assero imagines Christi ac Deiparae semper Vir-
ginis, necnon aliorum Sanctorum habendas et retinendas
§le
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
pi
PROFESSION OF FAITH 71
esse, atque eis debitum honorem ac venerationem imper-
tiendam. — Indulgentiarum etiam potestatem a Christo in
Ecclesia relictam fuisse, illarumque usum Christiano
populo maxime salutarem esse affirmo, — Sanctam, Catho-
licam et Apostolicam Romanam Ecclesiam, omnium Ec-
clesiarum matrem et magistram agnosco, Romanoque
Pontifici beati Petri Apostolorum Principis successori ac
Iesu Christi Vicario veram obedientiam spondeo ac iuro.
Cetera item omnia a sacris Canonibus et Oecumenicis
Conciliis, ac praecipue a sacrosancta Tridentina Synodo
et ab Oecumenico Concilio Vaticano tradita, definita ac
declarata, praesertim de Romani Pontificis primatu et
infallibili magisterio, indubitanter recipio atque profiteor,
simulque contraria omnia, atque haereses quascunque ab
Ecclesia damnatas et reiectas et anathematizatas, ego pari-
ter damno, reiicio et anathematizo. Hanc veram Catho-
licam Fidem, extra quam nemo salvus esse potest quam
in praesenti sponte profiteor et veraciter teneo, eandem
integram et inviolatam usque ad extremum vitae spiritum,
constantissiroe, Deo adiuvante, retinere et confiteri, atque
a meis subditis seu illis, quorum cura ad me in munere
meo spectabit, teneri et doceri et praedicari, quantum in
me erit curaturum, ego idem N. spondeo, voveo ac iuro.
Sic me Deus adiuvet, et haec sancta Dei Evangelia.
oogle
k ,1,^ Original from
UNIVERSITY OF WISCONSIN
■
"-.
PART II
COMMENTARY
BOOK I
general rules
Can. i
Licet in Codice iuris canonici Ecclesiae quoque
Orientalis disciplina saepe referatur, ipse tamen unam
rcspicit Latinam Ecclcsiam, nequc Orientalcm obligat,
nisi de iis agatur, quae ex ipsa rei natura etiam Orien-
talem afficiunt.
Though the discipline of the Oriental Church
is often referred to in the Code of Canon Law,
the Code itself regards only the Latin Church and
does not bind the Oriental Church except in mat-
ters which of their very nature concern also the
latter.
In other words, the new Code binds the Oriental
Church only in so far as its dicipline is expressly men-
tioned therein.
This point was decided in 1907 by the Sacred Congre-
gation of the Propaganda in a decree which touches upon
the binding force of the Constitutions of the Holy See.1
1 Cf. Colltctanca P. F„ 1907, II, n. 1578.
72
►ogle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
-'
■
pi
CANON 2 73
This decree establishes that laws emanating from the
Holy See are binding upon the Oriental Church,
a) if they concern matters of faith or morals;
b) if they contain matters connected with the divine
or the natural law, e. g., the application of Holy Mass for
the people at least sometimes during the year;
c) if the laws themselves expressly state that they are
meant to bind the Oriental Church.
The Oriental Churches are distinguished from the
Latin Church by their respective liturgical rites,2 whilst
in faith or dogma they are united with the Roman Pon-
tiff. To the Oriental Church belong eight large groups
with their respective subdivisions: the Byzantine Uniats
with the Melchites, the Ruthenians, the Bulgarians, the
Rumanians, the Italo-Greeks (in Calabria and Sicily),
the Chaldees, the Copts, the Abyssinians, the Catholic
Syrians, the Maronites, and the Armenians and Uniats of
Malabar. The Oriental Catholics living in the U. S. re-
main subject to their respective Church, so far as rite
is concerned, but in disciplinary matters, v. g.t celibacy
of the clergy, they follow the Latin Church.
3.
I-
Can. 2
Codex, plerumque, nihil decernit de ritibus et caere-
moniis quas liturgici libri, ab Ecclesia Latina prohati,
servandas praccipiunt in celcbratione sacrosancti
Missae sacrificii, in administratione Sacramentorum et
Sacramentalium aliisque sacris peragendis. Quare
omncs liturgicae leges vim suam retincnt, nisi carum
aliqua in Codice expresse corrigantur.
-
2 Cf. Cath. Encyclopedia, Vol. V, Latina (S. Poenit., y July, 1917, A.
s. v. Eastern Churches. The Oii- Ap. S.r i9J7. ix. P- 399)-
cutals also gain indulgences like the
>Ie
I , Original from
UNIVERSITY OF WISCONSIN
N
■
74 GENERAL RULES
The Code, furthermore, decrees nothing about
the rites and ceremonies which the liturgical
books approved by the Latin Church prescribe
for the celebration of the most holy Sacrifice of
the Mass, the administration of the Sacraments
and sacramentals, and other sacred functions.
Hence all liturgical laws retain their force unless
expressly corrected in the Code.
See Introduction, supra, pp. 60 sqq.
Can. 3
Codicis canones initas ab Apostolica Sede cum variis
Nationibus conventiones nullatenus abrogant aut iis
aliquid abrogant; eae idcirco perinde ac in praesens
vigere pergent, contrariis huius Codicis praescriptis
minixnc obstantibus.
The canons of the Code in no wise abrogate or
derogate from the agreements entered into be-
tween the Apostolic See and different nations;
these agreements therefore remain in full force,
notwithstanding contrary prescriptions of the
Code.
This canon is evidently intended for those countries
■which maintain a so-called diplomatic or juridical rela-
tion with the Holy See. Where there is complete sep-
aration between Church and State, this canon does not
apply, and hence the United States and England are not
directly affected. We say directly; for, if one of the
countries in which the aforesaid separation prevails
should acquire a territory, or part thereof, which had a
< ".vmiIp Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CANON 4 75
concordat with the Holy See, it would be obliged to
abide by the concordat until the case could be legally
settled wilh the Apostolic See (Congregation of Extraor-
dinary Affairs).8 An instance of a peaceful settle-
ment is that with the United States concerning the Philip-
nine Islands.
N
Can. 4
Iura aliis quaesita, itemque privilegia atque indulta
quae, ab Apostolica Sede ad haec usque tempora per-
sonis sive physicis sive rnoralibus concessa, in usu
adhuc sunt nee revocata, integra manent, nisi huius
Codicis canonibus expresse revocentur.
■
-
Rights otherwise acquired, as well as privileges
and indults hitherto granted by the Apostolic See
either to individuals or to organizations remain
intact if they are still in use and have not been
revoked, unless expressly revoked in the canons
of this Code.
The rights here mentioned are the so-called jura
quaesita* i. e., the legally acquired subjective rights of a
third person. For instance, a bishop has the right of ap-
pointing one to a certain office; hence, though a corpora-
tion (monastery) has the right of appointing one of its
members, this appointee must be presented to the Ordi-
nary. Indults arc faculties granted by the Holy See, e. g.t
3 A concordat (conventio) is a there is no reason to relinquish that
mutual agreement entered into be- notion.
tween the Apostolic See and a State 4 Cf r. the saying: " Jus qtiaesi-
regarding matters which concern lum fortius at quam iiii quaeren-
both parties, and is of the nature of dum." Cf. Barbosa, Tractates Varii,
a bilateral contract; cf. our Summa Axioma 135, ed. Lugd. 1660, p. 89.
Juris Eecl. Publia, 1910, p. 138 ; ;
oogle
, I Original fro ni
UNIVERSITY OF WISCONSIN
-
■
pi
76 GENERAL RULES
the triennial faculties. These remain unchanged unless
the Code expressly abolishes them, and consequently all
faculties obtained before the promulgation of the Code
and not expressly abolished therein remain in vigor until
they lapse.
Can. s
Vigentes in praesens contra horum statuta canonum
consuetudines sive universales sive particulares, si
quid em ipsis canonibus expresse reprobentur, tanquam
iuris corruptelae corrigantur, licet sint immemorabiles,
neve sinantur in posterum reviviscere; aliae, quae
quidem centenariae sint et immemorabiles, tolerari
poterunt, si Ordinarii pro locorum ac personarum
adiunctis cxistiment eas prudenter submoveri non
posse; ceterae suppressae habeantur, nisi expresse Co-
dex aliud caveat.
Such customs, whether universal or particular,
as are now in vogue contrary to the prescriptions
of these canons, if they are expressly reprobated
by the canons, should be amended as corruptions
of the law, even though they be immemorial, and
should not be allowed to revive in future; others,
which are of century-long duration and immemor-
able, may be tolerated if the Ordinaries, with due
regard to places and persons, consider that they
cannot be prudently abolished; the rest shall be
regarded as suppressed, unless the Code expressly
provides otherwise.
On privileges and customs see infra, under the respec-
tive titles.
5 'rtrwilo Original from
.OO^lt UNIVERSITY OF WISCONSIN
CANON 6 77
Can. 6
Codex vigentem hue usque disciplinam plerumque
retinet, licet opportunas immutationes afferat. Itaque :
i.° Leges quaelibet, sive universales sive particu-
lates, praescriptis huius Codicis oppositae, abrogantur,
nisi de particularibus legibus aliud cxpressc caveatur ;
2.° Canones qui ius vetus ex integro referunt, ex
veteris iuris auctoritate, atque ideo ex receptis apud
probatos auctores interpretationibus, sunt aestimandi;
3.0 Canones qui ex parte tantum cum veteri iure
congruunt, qua congruunt, ex iure antiquo aestimandi
sunt; qua discrepant, sunt ex sua ipsorum sententia
diiudicandi ;
4.0 In dubio num aliquid canonum praescriptum
cum veteri iure discrepet, a veteri iure non est rece-
dendum ;
5.0 Quod ad poenas attinet, quarum in Codice nulla
fit mentio, spirituales sint vel temporales, medicinales
vel, ut vocant, vindicativae, latae vel ferendae senten-
tiae, eae tanquam abrogatae habeantur ;
6.° Si qua ex ceteris disciplinaribus legibus, quae
usque adhuc vigucrunt, nee explicite nee implicite in
Codice contineatur, ea vim omncm amisisse dicenda
est, nisi in probatis liturgicis libris reperiatur, aut lex
sit iuris divini sivi positivi sive naturalis.
The Code for the most part retains the disci-
pline hitherto in force, but makes some opportune
changes. Thus :
i.° All laws, whether universal or particu-
lar, that are opposed to the prescriptions of this
Code, are abrogated, unless some special provi-
sion is made in favor of particular laws;
jle
I , Original fro ni
UNIVERSITY OF WISCONSIN
■
78 GENERAL RULES
2.0 Those canons which restate the ancient
law without change, must be interpreted upon the
authority of the ancient law, and therefore in the
light of the teaching of approved authors;
3.0 Those canons which agree with the an-
cient law only in part, must be interpreted in the
light of the ancient law in so far as they agree
with it, and in the light of their own wording in
so far as they differ from the ancient law;
4.0 When it is doubtful whether a canon
contained in this Code differs from the ancient
law, the ancient law must be upheld ;
5.0 As regards penalties not mentioned in
the Code, whether spiritual or temporal, medicinal
or (as they say) vindictive, whether incurred by
the act itself or imposed by judicial sentence,
they are to be considered as abrogated;
6.° If there be one among the other disci-
plinary laws hitherto in force, which is neither
explicitly nor implicitly contained in this Code,
it must be held to have lost all force unless it is
found in approved liturgical books or unless it is
of divine right, positive or natural.
This canon establishes the relation between the old
and the new law of the Church, as explained in the Intro-
duction to this Commentary, supra, pp. 60 sqq.
Can. 7
Nomine Sedis Apostolicae vel Sanctae Sedis in hoc
codice veniunt non solum Rom anus Pontifex, sed
* I Inr»al*> Original from
-OO^IC UNIVERSITY OF WISCONSIN
CANON 7 79
etiam, nisi ex natura rei vel sermonis contextu aliud
appareat, Congrcgationcs, Tribunalia, Officia, per
quae idem Romanus Pontifex negotia Ecclesiae uni-
versalis expedire solet
I By the term " Apostolic See " or " Holy See *
in this Code is meant not only the Roman Pontiff,
but also, unless a different meaning follows from
the nature of the thing or the context, the Con-
gregations, Tribunals, and Offices by means of
which the Roman Pontiff is wont to transact the
affairs of the universal Church.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
TITLE I
ON ECCLESIASTICAL LAWS
DEFINITION AND NATURE
An ecclesiastical law may be defined as " a stable ordi-
nance in accordance with reason, promulgated by the
legitimate authority for the common welfare of the
Church." * It is evident that a law spells stability and
should always be based upon the dictates of reason, which
requires that circumstances of person, time, and place
should be duly considered.
Promulgation of ecclesiastical laws is necessary be-
cause, and in so far as, the will of the legislator must,
in some way or other, be manifested to his subjects.8
The mode of promulgation depends on the legislator
himself, and consequently is subject to change. Formerly
ecclesiastical laws were promulgated in the City of Rome,
at the gates of St. John I-ateran, at St. Peter's, at the
Apostolic Chancery and the Campo de* Fiori. The
" Tametsi " had to be promulgated in every parish. Now
an ecclesiastical law is sufficiently promulgated when it is
published in the Acta Apostolicae Scdis.
Can. 8
S I- Leges instituuntur, cum promulgantur.
1 Accommodated from the defini- the commentaries on tit II Deere-
tion of law in general by St. tat) to assert that the validity and
Thomas, S. Theol, la aae, qu. 90, obligatory force of laws depends on
a. 4. their acceptance by the people or
2 It would be subversive of au> clergy,
thonty, as all canonists maintain <cf.
80
ioi >gle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
Q
■
CANON 10 8l
§ 2. Lex non praesumitur personalis, sed territoria-
lis, nisi aliud constct.
§ I. Laws go into effect when they are pro-
mulgated.
§ 2. A law is not presumed to be personal,
but territorial, unless the contrary is evident.
Can. 9
Leges ab Apostolica Sede latae promulgantur per
editionem in Actorum Apostolicae Sedis commen-
tario officially nisi in casibus particularibus alius pro-
mulgandi modus fuerit praescriptus ; et vim suam
exserunt tantum expletis tribus mensibus a die qui
A ctorum numero appositus est, nisi ex natura rei illico
ligent aut in ipsa lege brevior vel longior vacatio spe-
cialiter et expresse fuerit statuta.
The laws enacted by the Apostolic See are
promulgated by being published in the official
Acta Apostolicae Sedis, unless some other mode
of promulgation is prescribed in particular
cases ; and they become obligatory three months
after the date affixed to the number of the Acta in
which they appear, unless the nature of the law
requires that it take effect immediately, or unless
the law itself especially and expressly fixes a
shorter or longer period.
■
Accordingly, a law published in the Acta Apostolicae
Sedis bearing date of August l, 1918, goes into effect at
midnight Oct. 31 to Nov. 1, 1918.
j Original from
$ie UNIVERSITY OF WISCONSIN
-'
■
pi
82 GENERAL RULES
Can. 10
Leges respiciunt futura. non praeterita. nisi nomina-
tirn in cis de praeteritis cavcatur.
Laws affect the future, not the past, unless it
is expressly stated therein that they are retro-
active.
A famous example of a retroactive law is the Constitu-
tion " Consensus mutnus," of February 15, 1892, by
which Leo XIII decreed that " henceforth in those places
in which clandestine marriages are regarded as valid,
all ecclesiastical judges who have cognizance of such
matrimonial causes should forthwith cease to treat the
intervention of carnal intercourse between betrothed per-
sons as a presumption (iuris et de iure) of the marriage
contract, and should not acknowledge or declare such
union to be a lawful marriage." (Cfr. De Smet, Be-
trothment and Marriage, tr. by W. Dobell, Vol. II, Bru-
ges, 1912, p. 18.)
LEGISLATORS IN THE CHURCH.
Although the Code in its general rules does not men-
tion the persons who are empowered to issue laws, it is
safe to state that the following are ecclesiastical law-
a
givers :
1. The Supreme Pontiff, who in matters subject to
ecclesiastical legislation may issue laws binding the whole
Church. This he may do without or with his counsellors,
through official organs, or personally.
2. The Bishops or Ordinaries, respectively, are en-
titled to issue laws for their respective territories. Their
laws must be in conformity with the general laws or go
beyond them; but without special commission or facul-
od by GoOgle
j , Original fro rn
UNIVERSITY OF WISCONSIN
CANON 10 83
a
ties Bishops or Ordinaries are not empowered to issue
laws contrary to the general law. Their legislative ac-
tivity may be exercised either in synod or without.
3. Superiors of communities of regulars (with sol-
emn vows), especially Generals, enjoy legislative power
co-extensive with the power granted by the Supreme
Pontiff and the Constitutions of their orders.
Other superiors of religious communities, if not ex-
empt, cannot be said to possess legislative power, properly
so called, although they may issue statutes and precepts.
OBLIGATION OF LAWS
In order to determine the obligatory force of a law, it
must be noticed, as we have already stated, that a dif-
ference exists between divine (positive) and human laws.
We may safely say that all moral laws which are based
on the dictates of reason, have been laid down in Holy
Writ. However, there are also positive divine laws
which, per set do not regulate the morality of acts, but
determine the constitution of the Church and the Sacra-
ments or the essentials of divine worship. These
positive divine laws are out of the reach of human legis-
lation and subject only to declaration or interpretation.
They receive their obligatory force from divine law, nat-
ural and positive, and bind all the members of the Church
without further injunction. Such laws evidently have
no territoral limits. Tt is otherwise with positive human
laws, which admit of distinction. Hence § 2 of Canon 8
(supra) says that a law must be presumed to be not per-
sonal but territorial, unless the contrary is evident, a9,
for instance, in case of the law prescribing the recital of
the Breviary, which is manifestly personal.
Considering the intrinsic force of the obligation im-
C* «-w \<t 1 * Original from
' UNIVERSITY OF WISCONSIN
84 GENERAL RULES
posed by ecclesiastical law, we must make a distinction
between merely prohibitive and nullifying laws. A
merely prohibitive law renders an act against that law
illicit, and this may be stated in barren terms, affect-
ing merely conscience ; or it may prohibit an act under
penalty. In the former case we speak, with the old Ro-
man jurisconsults, of a lex tninus quatn perfecta, in the
latter of a lex perfecta, which has a penal sanction at-
tached.
There is another species of laws, called irritantes or
mhabilitantes, which are nothing else but nullifying laws,
viz., such as render an act committed contrary to them
null and void {lex plus quam perfecta).
Now the Code says :
Can. ii
■
Irritante9 aut inhabilitantes eae tantum leges haben-
dae sunt, quibus aut actum esse nullum aut inhabilem
esse personam expresse vel aequivalenter statuitur.
Only those laws are to be considered as nulli-
fying which state in express or equivalent terms
that either the act is null and void or that a [cer-
tain] person is incapable [of performing a valid
act against the law].
Thus, e. g., the first degree of consanguinity renders
a marriage null and void, whilst the attempted marriage
of one in sacris is null by reason of the incapability of
the person, expressly so declared. Equivalent means
equal in force or significance so far as concerns the matter
under consideration.
(Canons 12, 13, 14, and 15, infra pp. 86 sqq.)
'le
£ * ^ ^ ,|,» Originalfrom
UNIVERSITY OF WISCONSIN
CANON 16 85
The subject of nullifying laws is continued in Canon
15-
Can. 15
Leges, etiara irritantes et inhabilitantes, in dubio
iuris non urgent; in dubio autem facti potest Ordi-
narius in eis dispensare, dummodo agatur de legibus in
quibus Romanus Pontifex dispensare solet.
If a doubt arises as to the law, nullifying laws
are not urgent; if there is a doubt regarding a
fact, the Ordinary is empowered to grant a dis-
pensation, provided there is a question of laws in
which the Roman Pontiff is wont to dispense.
A dubiutn juris may arise from an imperfect knowl-
edge of the existence of a law or its being in force. Such
ignorance, of course, is not likely to be as common now
as it was before the promulgation of the new Code. But
even now, unless one is thoroughly acquainted with the
law and the rules of interpretation, doubts may arise,
without serious guilt, especially in cases or texts which
refer to the old law.
A dubium facti may be caused by insufficient cogni-
zance of a fact or its circumstances. Under this category
falls, e. g., the whole range of nullifying impediments.
Ordinaries must acquaint themselves with the customs of
the Roman Curia so as to know whether or not a dispen-
sation may be granted in certain cases.
Can. 16
o
§ 1. Nulla ignorantia legum irritantium aut inhabili-
tantium ab eisdem excusat, nisi aliud expressse dicatur.
§ 2. Ignorantia vel error circa legem aut poenam aut
circa factum proprium aut circa factum alienum no-
od by GoOgle
I , Original fro ni
UNIVERSITY OF WISCONSIN
86 GENERAL RULES
torium generatim non praesumitur ; circa factum
alienum non notorium praesumitur, donee contrarium
probctur.
■
9
. § I. Ignorance of nullifying laws does not ex-
cuse from their observance, unless the contrary is
expressly stated.
§ 2. Ignorance or error concerning a law or a
penalty or a fact which touches one's own person,
or a notorious fact which touches another, as a
general rule is not to be presumed ; if, however,
there is question of a fact regarding another,
which is not notorious, ignorance or error may be
presumed until the contrary has been established.
This canon does honor to the juridical sense of the law-
framers against a certain tendency of minimizing the
valor of laws. A well known instance is that of the im-
pediment of crime, which some authors wished to cover
with the cloak of ignorance.
In regard to § 2 several observations are to be made :
a) Ignorance is the lack of necessary knowledge,
whereas error is a state of mind approving falsehood for
truth. The former is negative, the latter positive and
hence more obnoxious, but perhaps also less imputable.
b) A notorious fact is one which is publicly known
and committed under circumstances that cannot be ex-
cused by any artifice (tergiversation) or aid of law (cf.
can. 2197).
c) Presumption is anticipating a judgment, or forming
a judgment from probable arguments and conjectures.
Hence our Code defines presumption (a means of de-
fence, but may here serve as a definition in law) as "a
§le
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 13 89
cilium vcl quasi-doxnicilium habent et simul actu com
morantur, firmo praescripto can. 14.
a
§ 1, General laws bind all for whom they are
given, everywhere.
§ 2. Laws given for a particular territory
bind only those for whom they are given and who
have a domicile or quasi-domicile in that terri-
tory and actually reside therein, except as noted
s
in Can. 14.
A general law (which term here appears to mean
universal law) is one given for the entire Church and all
its members, as, e. g.t yearly confession, hearing Mass,
etc.
Particular laws arc limited to the territory for which
they are given, for instance, the law governing the
election of bishops in the U. S., or laws made by provin-
cial councils and diocesan synods. Particular laws sup-
pose residence in the territory for which they are made, —
residence conditioned by domicile, which the present
canon limits to domicile proper and quasi-domicile.
Domicile proper, according to the Roman law/ which
has been adopted in this matter by canonists, is a fixed
habitation in a certain place (municipality, parish) with
the intention of staying there always. Hence actual resi-
dence, as manifested by the purchase or leasing of a house
for an indefinite time, and the intention to remain in
that place permanently, are signs of a true domicile.
Now-a-days such fixed habitation is rare in large cities,
p
7 Cf. I. 7. Cod, lust, X, 10 de non ait discessurus, si nihil avocet,
incolis: " habere domicilium non unde cum profecfus est, peregrinari
ambigitur, ubi quis larem (houic- videtur; quodsi rediit, peregrinari
gods) rerumque ac fortunarum sua- jam destitit."
rum summara constituit, unde rursus
>Ic
£ " ^ , ,L» Original from
UNIVERSITY OF WISCONSIN
90 GENERAL RULES
though frequent enough in farming districts. It is there-
fore entirely reasonable that a quasi-domic He should be
admitted as meeting the requirements and order of law.
This is established by actual residence in a certain parish
or municipality with the intention of remaining there for
the greater part of a year. This intention may be
presumed if a person stays at least six months in the
same place.8 The distinction therefore between domicile
and quasi-domicile consists in a difference of intention
{animus), domicile requiring a perpetual, or at least an
indefinitely protracted sojourn, whilst quasi-domicile may
be established by a residence of six months. This quasi-
domicile is acquired from the first day of residence if
the person concerned can be proved to have had the in-
tention of remaining there for the time stated.
This canon does not consider the monthly stay (can.
in
1097) peculiar to the matrimonial celebration.
The expression: "For whom they are given" (can.
13, § 1 ) calls for special attention. Laws given for lay-
men do not invariably apply to the clergy, and vice versa.
Neither do all the laws intended for the secular clergy
eo ipso bind the regular clergy; nor are the penal laws
intended for the clergy meant for bishops and cardinals.
Some peculiarities are attached, by reason of laws
being per se territorial, to foreigners {peregrini), 1. e.t
such persons as have for the moment relinquished their
domicile or quasi-domicile, although they retain it (can.
91 ) . Of these can. 14 treats as follows :
Can. 14
§ 1. Peregrini:
l.° Non adstringuntur legibus particularibus sui
territorii quandiu ab eo absunt, nisi aut earum trans-
act Reifienstuel, 1. II, tit. 2, nn. 17 ff-
§le
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 14 91
□
gressio in proprio territorio noceat, aut leges sint
personalcs ;
2.0 Neque legibus territorii in quo versantur, iis ex-
ceptis quae ordini publico consulunt, vel actuum sol-
lcmnia determinant ;
3.0 At legibus gencralibus tenentur, etiamsi hae suo
in territorio non vigeant, minime vero si in loco in quo
versantur non obligent.
§ 2. Vagi obligantur legibus tarn generalibus quam
particularibus quae vigent in loco in quo versantur.
§ 1. Strangers:
i.° Are not obliged to observe the particular
laws of their own territory while they are absent
therefrom, unless non-observance of these laws
should prove detrimental in their own territory,
or unless the laws are personal.
2.0 Neither are they bound to observe the par-
ticular laws of the territory in which they are
sojourning, with the exception of those that con-
cern the public welfare or legal formalities.
3.0 General laws they must observe, even
though these laws are not enforced in their home
territory ; they are not bound to observe general
laws if these laws are not binding in the place
where they sojourn.
There is little to be said concerning the first clause.
Some examples may illustrate the case. There is, e. g.,
the law binding every Catholic to support his pastor.
If one is absent when the pew-rent is due, he is not, on
account of his absence, free from the obligation of paying
§le
£ ' " ^ ^ iL» Original from
UNIVERSITY OF WISCONSIN
92 GENERAL RULES
the same, because such an excuse would be detrimental
to discipline. A bishop's obligation of applying Mass at
stated times is incumbent on him even during his absence
from the diocese, because it is personal.
The second clause concerns the particular laws of the
territory in which one sojourns and provides that what-
ever is connected with the public welfare or concerns legal
formalities, must be observed by strangers (peregrini) .
The Code does not mention scandal, although can-
onists give that as a reason for the obligation of observing
particular laws. The omission is probably due to the fact
that scandal may negatively be reduced to considerations
of public welfare. An instance may be taken from a par-
ticular diocesan statute concerning the frequenting of
dramshops, which in some dioceses is forbidden under
suspension, whilst in other dioceses no such sanction is
attached.
Formalities (solletnnia) are outward details which
must be observed in order to make an act legal. These
are partly civil, e. g.} in contracts and last wills, and
partly pertain to proceedings in the episcopal court.
The last clause, No. 3, touches upon general laws.
An example may be furnished by the ten general holy-
days of obligation (can. 1247), of which only six are
observed in the United States. An American travelling
in countries where the ten holydays are kept, must ob-
serve them. A European, on the other hand, sojourning
in this country, may conform himself to our custom.0
Section two added to our cannon concerns the vagi, i. e.t
such as possess neither domicile nor quasi-domicile.
They are obliged to observe both the general and the par-
ticular laws in effect at the place where they are staying.
This regulation is somewhat stricter than usually ac-
9 A stricter view is taken by Suarez, De Leg. Ill, cc 3a i.
a
jle
, ,.] , Original from
UNIVERSITY OF WISCONSIN
CANON 17 93
cepted by commentators. Yet it is in keeping with the
civil law and is really nothing else but the consistent
application of the forum competeiis.w
INTERPRETATION OF LAWS
By interpretation we mean an explanation of the will
of the legislator taken from the wording of the text.
As the Roman emperors issued interpretations of ob-
scure texts,11 so did the popes, first and above all in mat-
ters of faith, but also, especially after authentic collec-
tions had been published, in disciplinary matters. The
Council of Trent decreed that authentic interpretations
should be given by the authority from which the law
emanated. The S. C. Council was especially charged with
interpreting the Tridentine decrees. Besides as the juris-
consults, too, rendered decisions or explanations, so did
the canonists proffer their explanations, which at times
were sought for, or at least accepted, by the Roman Court.
Thus we have a twofold interpretation, authentic and
private. An authentic interpretation12 proceeds from
the maker of the law.
p
Can. 17
§ 1. Leges authenticae interpretatur legislator eiusve
successor et is cui potestas interprctandi fucrit ab eis-
dem commissa.
§ 2. Interpretatio authentica, per modum legis ex-
hibita, eandem vim habet ac lex ipsa ; et si verba legis
in se certa declaret tantum, promulgationc non eget et
valet retrorsum; si legem coarctet vel extendat aut
10 Cfr. c 20, X, II, a de foro 11 Blackstone-Coolej, '. c, I, p.
compet. and the commentators on the 58.
same, for instance. Reiffenstuel, II, 12 Authentic from the Greek
a, n. 44 f.; Engel, h. t, n. ix. aMivrty, means *elf -authorized,
original, authoritative.
>Ie
k .,1,., Original from
UNIVERSITY OF WISCONSIN
■
94 GENERAL RULES
dubiam explicet, non rctrotrahitur et debet pronmlgari.
§ 3. Data autem per rnodum sentcntiae iudicialis aut
resenpti in re peculiar!, vim legis non habet et ligat
tantum personas atque afficit res pro quibus data est.
§ I. Laws are authentically interpreted by the
legislator or his successor, or by those to whom
the power of interpretation has been given by
either the legislator or his successor.
§ 2. An authentic interpretation, given in the
form of a law, has the same force as the law
itself; if it is merely a declaratory interpretation,
it needs no promulgation and its obligatory force
goes back to the day when the law itself was
promulgated; but if the interpretation is restric-
tive or extensive or settles a doubt, it is not retro-
active and requires to be promulgated.
§ 3. If an interpretation is given in the form
of a legal judgment, or of a rescript in a spe-
cial case, it has not the force of law, but binds
only those persons and affects only those matters
for whom or for which it is given.
As an authentic interpretation can be given only by the
lawgiver or his successor and by those to whom the power
of interpretation is committed by the lawgivers, the Pope
and the Roman Curia (congregations, tribunals, offices),
are the authentic interpreters of all those laws which pro-
ceed from the Sovereign Pontiff, whilst the Bishops or
their successors are the interpreters of their own laws.
The interpreter may be in a position where he has
either to extend the law or restrict it. He extends by
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
Q
CANON 17 95
interpretation if he applies the wording or text to cases or
persons not mentioned in the law or not included in the
original intention of the lawgiver, although the exten-
sion is not against the lawgiver's will ; 13 for instance,
exemption or papal enclosure to religious without sol-
emn vows.14
A restrictive interpretation takes place when the law is
limited to fewer persons or cases than the wording and
the mind of the legislator would seem to indicate,18 e. g., if
the people are interdicted but the clergy is not included.
Besides doubts may arise, e. g. in rubrics, which must be
solved. And, lastly, there may be required a merely
comprehensive (declaratory) explanation, viz., one which
explains the law literally, but in more obvious terms, by
substituting other words.
The Code (can. 17, § 2) says that an authentic inter-
pretation of a law is of equal force with the law itself
and has the same binding power; and if it be a merely
declaratory interpretation, it needs no promulgation and
its obligatory force goes back to the date of the pro-
mulgation of the law itself. An interpretation that is ex-
tensive or corrective (restrictive), on the other hand, must
be promulgated and is not retroactive.
There is, however, another authentic interpretation pos-
sible, viz., one demanded by parties directly interested.
It may happen, for instance, that a matrimonial case, or
a case of precedence, must be decided by way of inter-
pretation. This is done by a so-called judiciary interpre-
tation, rendered by a legitimate judge (can. 17, § 3).
Evidently such an interpretation binds only the parties
11 Cfr. c. 3, 6°, III, 14. nie rcstrictio legts eo tendit, ut men-
14 Suarez, J. e., VI, cc a f. ; tern ipsam legiilalorio ad pauciora
Reiffenstuel, I, 2, n. 370 f- coarctet, quam verba vel ratio legil"
15 Saurez, /. c. VI, 5, 1 : " Om- prae sc ferrc videntur."
od by GoOgle
Original fro rn
UNIVERSITY OF WISCONSIN
■
96 GENERAL RULES
concerned and in the matter decided, and outsiders are
not affected thereby.
Private interpretation, viz., one given by jurisconsults
not commissioned by the lawgiver, or by expert canonists
(doctors), must be made in conformity with certain rules
which are necessary for the right understanding of ec-
clesiastical— in fact of all — law. These rules are, of
course, generally obeyed also by the authentic interpre-
ters, but they are of importance especially in private
interpretation and for those who wish to read and study
Canon Law rightly. These rules are briefly the follow-
ing:
Can. 18
Leges ecclesiasticae intelligendae sunt secundum
propriam verborum significationem in textu et con-
textu considcratam ; quae si dubia et obscura manserit,
ad locos Codicis parallelos, si qui sint, ad legis finem
ac circumstantias et ad mentem legislatoris est recur-
rendum.
Ecclesiastical laws must be understood accord-
ing to the proper meaning of the words consid-
ered in their context; if the meaning remains
doubtful and obscure, recourse must be had to
parallel texts in the Code, if there are any, to the
purpose of the law and the circumstances sur-
rounding it, and to the mind of the lawgiver.
Ecclesiastical laws must be interpreted in the light of
their wording, as borne out by the context. Hither be-
long various rules culled from the Roman and the Canon
Law : " Ubi verba non sunt ambigua, non est locus in-
terpretation* ; " ia " Verba sunt intelligenda secundum
m L. 25, Dig. 32 delegate et fidei-com. (ed. Mommsen, 190a, p. 445).
oogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 18 97
propriam significationem,1' i. e., in their usual and com-
mon signification;" "Verba generalia generalitcr sunt
sumenda," and " Ubi lex non distinguit, neque nos dis-
tinguere debemus." 1B
The context, too, must be considered, for it may be
useful to compare words or sentences in the order and
connection which they have with one another.
When the terms are doubtful and obscure, the inter-
preter must have recourse to parallel texts of the Code,
and study the purpose and circumstances of the law and
the mind of the legistator. Parallel texts are such as
have an affinity with the subject or are expressly related
to the same. Here the rule holds good: " De similibus
idem est judicium."18 Note, however, that the simi-
larity must bear on the point at issue.
The purpose or end of the law must be regarded in
such a way that the interpretation really effects the scope,
hence the rule : u Certum est, quod is committit in legem,
qui legis verba complectens, contra legis nititur volunta-
tem." The scope is sometimes, especially in long de-
crees, premised in the preamble, which may then serve
as a guide to the interpreter.
The circumstances surrounding a law are either his-
torical, i e., facts which prompted the law, e. g., the re-
moval of a parish priest, or real, i. e., actual needs and
reasons of time and person.
The mind of the legislator must, of course, first and
above all be deduced from the words of the law. Cir-
cumstances, context, subject, etc., also help to disclose
the mind of the legislator, as well as the ratio legis,
which is called the soul of the law. Hence the rule,
m
a
IT RcifFcnstucl, I, a, 390 ff.; 18 Cf. Suromarium ad I, 8, Dig., 6,
Blackstone-Cooley, /. c, I, p. 59. a de Publicians.
lit Cfr. can 701 with can. 106; c. 2, X, J, 7; e. 3, X, I. 2.
p
J Original from
1 K K >gie UNIVERSITY OF WISCONSIN
98 GENERAL RULES
" Non debet intentio verbis deservire, sed verba inten-
tioni." 30
But we must guard against the assumption that the
intention of the interpreter may be carried into the
text. Hence if all the means so far enumerated fail in
discovering the true mind of the legislator, nothing is left
but to make direct inquiry by petitioning the competent
authority. Therefore we sometimes read : " Iuxta men-
tem," and the " mens " is set forth explicitly ; but some-
times it must be guessed at, as said before.
Can. iq
Leges quae poenam statuunt, aut liberum iurium
exercitium coarctant, aut exceptionem a lege continent,
strictae subsunt interpretation!.
All penal laws as well as those which restrict
the free exercise of rights or embody an excep-
tion to the law, are subject to strict interpretation.
The first clause of this canon is contained in the well
known rule XV in Sexto : " Odia restringi, favores con-
venit ampliari," and rule 49, I. C. : " In poenis benignior
interpretatio est facienda." Such an interpretation is
neither extensive nor restrictive, but merely comprehen-
sive ; but an explanation which simply negatives the
penalty is no interpretation. Strict interpretation clings
to the text, and pays due regard to the mind of the legis-
lator, but mitigates the rigor of the law as far as the ratio
legis will permit. What is meant by restricting the free
exercise of rights is best understood by the example of
the Ordinary exercising his rights as diocesan in appoint-
ments, etc.
Exceptions from laws may be either privileges or fa-
20Cfi. c. 11. C. 22, q. 5.
gte
Original from
UNIVERSITY OF WISCONSIN
—
a
N
■
CANON 20 99
vors of a personal nature, or particular or special laws,
which latter are called exorbitantes?* i. e., running beyond
the sphere of general or common law. For instance, a
private oratory is a favor, exemption is a special law,
and all these are subject to strict interpretation.
Can. 20
Si certa dc re desk expressum pracscriptum legis
sive generalis sive particularis, norma sumenda est, nisi
agatur de poenis applicandis, a legibus latis in simili-
bus ; a generalibus iuris principiis cum aequitate
canonica servatis ; a stylo et praxi Curiae Romanae ; a
communi constantique sententia doctorum.
If a general or a particular law contains no defi-
nite prescription concerning a case, unless there
is question of applying a penalty, the rule for
deciding such a case must be taken from laws
given in similar cases, from the general principles
of Canon Law based on equity, from the method
and practice of the Roman Court, or from the
common and constant teaching of approved
canonists.
It is evident that a lawgiver cannot foresee or anticipate
all the cases that may arise in practice in connection with
his law. Hence something is always left to private judg-
ment. Now there are four sources from which private
judgment may draw aid in solving exceptional cases.
They are :
1. The "usus forensis " or " auctoritas rerum similiter
iudicatarum." This is nothing else but the norm of cus-
tomary procedure and decisions previously rendered in
2i Cf. c. 11, C 22, q. 5.
"-.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
too GENERAL RULES
cases similar to the one in dispute. Although such de-
cisions, especially if they have emanated from the Roman
tribunals, must be received respectfully, and may be fol-
lowed securely, yet their force does not extend so far
as not to admit of a contrary verdict if the reasons arc
strong enough to upset former decisions.22
2. The second means of deciding cases is recourse to
general legal principles based on the equity of Canon Law.
That equity is a means of practical interpretation and ap-
plication is evident, for reason dictates that, if a law is
deficient in a particular case, it should be applied accord-
ing to the principles of law, indeed, but with a human
feeling.23
The principles, of course, must be taken from Canon,
not from civil law. It is surprising that the Code does
not refer to civil laws at all, except in so far as concordats
arc concerned. Hence in interpreting the Code it would
be useless to refer to civil laws, and we merely note the
fact that there is no palpable trace in the New Code of
" canonized " civil laws, i. e.r civil laws formally sane-
tioned by the Church. On the other hand it is plain that
just laws issued by the civil power are not spurned by the
ecclesiastical authorities but accepted and proposed as
binding the members of the Church.
3. The third means of applying the law is by render-
ing a decision in default of an existing law in accord-
ance with the stylus curiae. From remote antiquity, as
the " Liber Diurnus " 2* shows, the Roman Court or Apos-
tolic Chancery employed a uniform, nay almost stereo-
typed mode of expediting affairs. This " stable method
..-.
22 Boekhn, Comment, in Jus Uni- quam strict! iuris rationem; " — but
vtnum, 1735. J» 4. n. 39. this feeling must not be indulged too
ZJL. 8, Cod. lutl., Ill, 1: far, lest it destroy all law. Black-
" Placuit in omnibus rebus praeci- atone Cooley, /. c. I, p. 61,
pu am esse iustitiae aequitatisque M Ed. Th. Siekel, 1889.
Go >gle
s -l] ^ Original from
UNIVERSITY OF WISCONSIN
CANON 21 ioi
■
of proceeding in ecclesiastical causes and dispatching
apostolic documents" is called the style of the Roman
Curia. It partakes of the nature of a law for the differ-
ent tribunals and the parties engaged in litigation before
them.*5
4. The last mode of propounding or expounding a case
is the authority of the school. That the professional
canonists have exerted a decided influence since the time
of Gratian, not only upon decisions but on lawmaking it-
self, is well known. The u school " itself distinguished a
threefold class of opinions: communissima, when all au-
thors agreed; communis, when several weighty authors
held the same opinion ; controversa, when there was dis-
agreement among canonists. za And it was always re-
garded as rash to deviate from the opinio communissima.
The Code mentions the M common and constant opinion
of the school as a guiding principle in deciding a doubt-
ful case, and justly so because such a consensus is suffi-
cient for moral certainty. For the rest, even the opinio
communissima does not constitute law.
Applying these rules, and especially that of equity,
one may persuade himself that a certain law does not ap-
ply to himself under given circumstances. This may be
true. However, since the law is intended for the com-
mon welfare, it is necessary to consider the rule laid down
in canon 21.
p
|M
Can. 21
Leges latae ad praecavendum periculum generate,
urgent, etiamsi in casu peculiari periculum non adsit.
Laws given in order to guard against a common
35 Rigznti, Comment, m Reg. 26 Schulte, Quelle*, i860, I, p.
Cane, Ap., 45. fi »« n. 96- 258.
* I Inr»ClI*> Original from
,008IL UNIVERSITY OF WISCONSIN
■
103 GENERAL RULES
danger must be observed even if that danger in a
particular case is absent.
The term "generate" here has reference to the com-
munity or body of the faithful, because a term extends
to the species contained in the genus.27 However, the
term may also be taken as comprising a certain class of
members, e. g.t the clergy, or the laity. Thus the law of
reading forbidden books binds all, the law of guarding the
privilegiufn fori, the clergy only, etc.
cessation of laws
Can. 22
Lex posterior, a competenti auctoritate lata, abrogat
priori, si id expresse edicat, aut sit illi directe contraria,
aut totam dc integro ordinet legis prioris materiam;
sed fir mo pracscripto can. 6, n. i, lex general is nulla -
terms derogat locorum specialium et personarum sin-
gularium statutis, nisi aliud in ipsa expresse caveatur.
A later law, given by competent authority,
abrogates an earlier one if it expressly says so,
or if it is directly contrary to it, or re-orders
the subject-matter of the older law; however,
Can. 6, No. i of this Code remains in full force,
that is to say, a general law in no wise derogates
from the laws in force in particular places or with
regard to particular persons, unless the contrary
is expressly provided therein.
27 Cf. Barbosa, Traclatut Varii, is, of course, more urgent when
Axioms iofi: *' Generalis dispositio there is necessity of professing the
Doines species eomprehendit*' faith or maintaining its unity or
Suarez, De Leg.t III, c. 30. This obeying superiors.
jle
f ■ j , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 23 103
In other words, an existing law loses its force if a new
law is made by which it is abolished. This may be done
(a) by an act of explicit abrogation, or (b) in virtue of
the prescriptions of the new law being directly opposed
to that of the old, or (c) if the new law reorders the en-
tire subject-matter of the old.
a) Papal constitutions sometimes contain the clause,
" hac immutabili et in perpetunm valitura constitutione."
This is merely an emphatic assertion that the law should
not be recalled without reason ; it does not bind the Pope's
successor, because " par in parem non habet imperium." aa
If the successor expressly mentions his predecessor's
law as abolished, the latter loses its force.
3!
b) A later lawgiver may issue a law about a matter
(e. g. matrimonial) which runs contrary to former laws ;
hence the rule, " Lex posterior generalis derogat legi
priori generali."
c) A thorough overhauling of the subject-matter has
the same effect, for instance, in the removal of parish
priests.
However, a general law does not abrogate a particular
or special law unless the intention of the lawgiver is
clearly expressed to that effect in a special clause. Such
a clause would be, " non obstantibus quibuscunque etiam
speciali vel specialissima mentione dignis." 2B In the
canon quoted the Code ordains that all particular and
special laws remain in force unless the contrary is ex-
pressly stated. Thus, e. g.f the particular law on episco-
pal nominations in the U. S. remains in force even under
the new Code.
Can. 23
In dubio revocatio legis praeexsistentis non prae-
2» Cfr. c. 20, X, I, 6 de elect. diet XV prefixed to the Code, supra,
« Cfr. the Constitution of Bene- pp. 64 sqq.
p
§le
£ * -» vnl/. Original from
UNIVERSITY OF WISCONSIN
■
104 GENERAL RULES
sumitur, sed leges posteriores ad priorcs trahendae
sunt et his, quantum fieri possit, conciliandae.
Where there is doubt whether or not a law has
been revoked, [by the Code or by another general
law], it may not be presumed that the law has
been revoked, but the old law should be compared
with the new, and both made to harmonize, as far
as possible.
This canon expresses the law of continuity in the legis-
lation of the Church. It would be unwarranted to as-
sume— as has, strangely enough, been done — that the
new Code came into being like a Deus ex machina and
that an insurmountable wall is now erected between the
Corpus Juris Canonici (in a wider sense) and the Code.
The sources (fontes) quoted will show the continuity of
legislation.
Can. 24
Praecepia, singulis data, eos quibus dantur, ubique
urgent, sed iudicialiter urged nequeunt et cessant reso-
luto iure praecipientis, nisi per legitimum documentum
aut coram duobus testibus imposita fuerint.
"^
Precepts given to individuals oblige those for
whom they are given, everywhere, but they can-
not be juridically enforced, and cease to bind
a
when the lawgiver loses his authority, unless in-
deed they were imposed by a legal document or
in the presence of two witnesses.
-
A precept (command, injunction), therefore, differs
from a law, in as far as it "cleaves to the person to
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 24 ios
whom it is given" (ossibus inhaeret) and ceases with
the authority or office of the one who gave it. Hence if
an Ordinary has given a precept so to a clergyman, that
precept does not bind after the death or resignation of
the Ordinary, unless the precept was given peremptorily
by way of an official document (not merely a paternal let-
ter) or in the presence of two witnesses (examiners).
SO Cf r. for in.'.t can. 2177, against eoncubinarii.
I Original from
jfVaOOglL UNIVERSITY OF WISCONSIN
N
■
TITLE II
CUSTOM l
Logically the Code now proceeds to deal with that other
source of legal obligation known as Custom. Custom
(consuetudo) generally speaking is a " law introduced by
uniform and constant usage of the people with the con-
sent of the legitimate power/' Two elements, therefore,
constitute the essence of a customary law : a material
one, which consists of a certain number of repeated
acts, and a formal one, which is the consent of the legis-
lator. Canon 25 asserts that an ecclesiastical custom
obtains its obligatory force solely from the consent of
ecclesiastical authority.
Can. 25
Consuetudo in Ecclesia vim legis a consensu compe-
tentis Superioris ccclesiastici unicc obtinet.
An ecclesiastical custom derives legal force
solely from the consent of the ecclesiastical su-
perior.
c
The word unice in the text clearly refers to consent.
The Code wisely abstains from determining the nature
of the consent required.
Consent may be express, i. e., given by words or con-
clusive signs explicitly approving a custom ; or tacit,
-
<
lCfr. title IV of the Decretals andthf commentators thereon.
I06
G 1 Originalfrom
OOglL UNIVERSITY QFWI5C0NSIN
CANON 25 107
given by the fact that the lawgiver, though aware of the
custom and in a condition lo oppose it. does not contra-
dict ; or finally, legal, which is nothing else but the will of
the legislator supposedly permitting a custom. The ma-
jority of canonists teach that legal consent suffices
for introducing a custom.2 The fact that customs have
been introduced which the sovereign Pontiffs at first ig-
nored * and afterwards accepted, seems abundant proof
for that opinion.
That legal consent is required for the validity of a cus-
tom follows from the nature of the latter as a law ; a law
must proceed from legitimate authority.
As to the material element or repeated acts, these
must bear the character of usage, and hence be frequent,
public, and uniform. Frequency supposes more than one
act, at least in common parlance. They must be public
because they supply the formal act of promulgation ; and
uniform in order to demonstrate the conviction of the
people.4 This latter quality (uniformity) calls for an-
other requisite, vis., voluntariness. The acts constitut-
ing a custom must be voluntary, for the people, in order
to create or show the persuasio juris, must be free of in-
trinsic and extrinsic coercion, — in other words, they must
not be under the impression as if they were bound to ob-
serve the custom in question because they falsely believe
it to be a law.* Hence the intention of obliging them-
selves is necessarily included in the formation by the
people of a custom.
One may ask, how can any one oblige himself to com-
2Cfr. Reiffenstuel. I, 4. n. 1*6 ff. /. c. I. 4, nn. 31 ff.: Zollinger.
BCir. c. a, 6°, I, *: "Quia luitit. Juris EccL, I, 1, tit. 4, fl
tamen loconim speciaHum et person- 228 f.
arum singularium consuetudines pot- 5 Cfr. the glossa on c. 11, h. t.;
eat probabiliter ignorare." v. Scherer, /. c, I, p. 132.
4 Cfr. c. 5, X, V, 41; Bockhn,
ogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
108 GENERAL RULES
mit a sin? This objection supposes the distinction be-
tween a custom against the law and a custom beyond
the law.
A custom against the law (contra legem) does not
create law, but merely removes the obligation of observ-
ing a law contrary to custom, whilst a custom beyond or
besides the lazv constitutes a law in defect of a law (de-
ficiente lege inducit obligationem legis). The latter alone
is a custom properly speaking.8 The objection stated
supposes mala fides in those who commence a custom
contrary to a law which they are supposed to know.
We do not deny that those who first act against the law
may be in mala fide, for they may act with a doubtful
conscience, which is not permitted except under certain
well-defined circumstances. However, we fairly deny
that mala fides is always the first cause of acting against
a law. There may be a thorough conviction that a law
is no longer useful or adapted to circumstances, and
hence had better be disregarded. Besides, it must be
maintained that the people directly and reflexly have the
will only of freeing themselves from a burden or restric-
tion opposed to liberty, which reflexive will cannot be said
to be evil in itself. Therefore mala fides must not nec-
essarily be supposed ; and even if it were present in the be-
ginning, it may disappear afterwards. At any rate, a
custom against a law may arise 7 either with or without
mala fides. The next query may be : what is understood
by people, for so far we have only spoken of the people
in general. Canon 26 answers that question.
"-.
fl A custom according to law ludo optima legum interprts." which
(iuxta legem) is strictly no custom needs net comment.
at all, but simply a vivid expression 1 If. Rciffenstael, I, 4. nn. 142 ft.;
and interpretation of an existing Boekhn, I, 4, nn. 19 ff. ; Wernz, lus
law; hence can. 29 says: " comue- Dctrelalium, cd. i, I, J55.
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 26 109
a
Can. 26
Comrnunitas quae lcgis ecclesiasticae saltern reci-
piendae capax est, potest consuetudinem inducere quae
vim legis obtineat.
-
A community which is capable of having an
ecclesiastical law imposed on it, can introduce a
custom which may obtain the force of law.
Law and custom suppose a certain amount of auton-
omy. This is verified in corporations acknowledged as
such by the Church — for we are concerned with eccle-
siastical law — and hence: (a) the Church at large, (b)
ecclesiastical provinces and dioceses, and (c) ecclesias-
tical corporations specially designed as such, for instance,
religious orders, also single exempt monasteries (e. q.f
of Benedictines), cathedral chapters, and congregations
which enjoy exemption. Congregations of religious with
simple vows, or rather, let us say, diocesan institutes, are
incapable of introducing a custom, primarily so-called, be-
cause they lack autonomy in the proper sense. For the
same reason ecclesiastical parishes cannot form a custom,
although both parishes and diocesan institutes may have
observances.8
Two other elements essential to custom are contained
in canons 27 and 28.
• i
B
■
Can. 27
§ 1. Iuri divino sive naturali sive positivo nulla con-
suetudo potest aliquatenus derogare; sed neque iuri
ecclesiastico praeiudicium affert, nisi fuerit rationabilis
a
et legitime per annos quadraginta continuos ct comple-
<
8 Reiftcnstuel, /. c, no. 1 10 ff.
jle
I , Original fro m
UNIVERSITY OF WISCONSIN
no GENERAL RULES
tos praescripta ; contra legem vero ecclesiasticam quae
clausulam contineat futuras consuetudines prohiben-
tern, sola praescribere potest rationabilis consuetudo
centenaria aut immemorabilis.
§ 2. Consuetudo quae in hire expresse reprobatur,
non est rationabilis.
■
§ I. No custom can in any wise derogate from
a divine law, be it natural or positive; nor does
any custom prejudice an ecclesiastical law, unless
it is a reasonable custom and has obtained for
forty continuous and full years; the only custom
that can obtain against an ecclesiastical law con-
o
taining a clause prohibiting future customs, is a
reasonable custom that has existed for a century
or from time immemorial.
§ 2. No custom is reasonable which is ex-
pressly reprobated by law.
If custom is a law which is essentially reasonable, the
custom itself must be reasonable. Consequently no un-
reasonable custom is admissible. Canonists have laid
down certain marks or notes by which a custom is shown
to be unreasonable. A custom is unreasonable,
a) If it is contrary to natural and divine law or if it
runs counter to faith and morals ; •
r-j
b) If it is repugnant to the constitution of the Church,
e. g., if laymen would usurp ecclesiastical power,10 if a
council would set itself above the pope, if a priest would
claim episcopal power, if the liberty of the Church were
»Cc. 4, 8, ii, Dist. ia; ee, 8. o. io C 14. X. I. 6 de elect
X, V, 3 de simonia.
G j Original from
OOglL UNIVERSITY OF WISCONSIN
-
■
pi
CANON 28 in
curtailed, or the free communication between pastor and
faithful disturbed, etc.
c) If it is subversive of ecclesiastical discipline, for in-
stance, contempt of censures,11 multiplicity of benefices in
the same hand,12 and for religious communities if they
should elect a superior from a different order.13
d) If a custom is reprobated by law.14
The other element is prescription,1* which here means
the time during which a custom has prevailed. Prescrip-
tion, according to the Code, requires forty continuous and
complete years. By this decision the Code has cut a
Gordian knot and stopped much unnecessary waste of
paper. The Code has gone even farther by demanding
a centennial or immemorial prescription in cases where
a custom is directed against an ecclesiastical law which
contains a clause prohibiting future customs. For a cus-
tom beyond the law forty full years' prescription is also
required.
Can. 28
Consuetudo praeter legem, quae scienter a communi-
tate cum ammo se obligandi servata sit, legem inducit,
si pariter fuerit rationabilis et legitime per annos qua-
draginta continuos et completos praescripta.
en
A custom beyond the law, which has been
knowingly observed by a community with the in-
tention of binding itself, becomes a law if it is
it C. s. X, I, 4: " msordescere in frequently.
censuris." 16 Canonists of note reject pre-
12 C. I, 6°, I, 4. scription as a requisite for custom,
ia C. 1, Clem. I, 3. but erroneously; cfi\ Schulte. Quel-
14 Our Code employs the term Un, I, p. 323 ft.; v. Scherer, I, 133.
" reprobata consuetudine " quite
, .,1,, Origin at fro ni
UNIVERSITY OF WISCONSIN
112 GENERAL RULES
reasonable and has been legitimately observed for
forty full and continuous years.
Here we must revert to canon 5 (supra, p. 76) among
the general norms, for it is directly connected with the
present subject. This canon ordains, as we have seen,
that all customs, either universal or particular, although
immemorial, which are contrary to the canons here em-
bodied and are expressly condemned as corruptions, must
be set right nor be allowed to revive. Other customs, if
centennial and immemorial, may be tolerated when the Or-
dinaries deem, according to circumstances of time and
persons, that they cannot be abolished, while all other
customs must be regarded as suppressed unless the Code
provides otherwise. This canon states the relation of
the customs in use at the time of the Code's going in
force, i. e., the 19th of May, 1918, to the canons of the
new Code, but it also touches future customs. Customs
which are expressly reprobated in the new Code (cfr. can.
818 etc.) must be abolished because the Church regards
them as corruptions. The future is considered as far
as it is incumbent upon Sion's watchmen to guard against
revival.
The second clause of Canon 5 treats of customs which
are per se reasonable but not in keeping with the new
Code. Such customs, if centennial and immemorial,
may be tolerated. There seems to be a difference be-
tween a centennial and an immemorial custom, because
the former term denotes a precise duration, whereas the
latter implies no more than a span of time that is beyond
the memory of a fairly old person ; for instance, two gen-
erations may suffice to accept an immemorial custom.18
c
o
lflAIl commentators arret that veterata sit ilia cuius initii non ex-
"consuetudo immemorialii aeu in- tat memoria." Cfr. c. 26, X, V, 4°.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 30 113
But canon 5 employs the conjunctive particle " et" (and),
while canon zyy § 1, when speaking of prescription, em-
ploys the disjunctive particle "aut" (or). The differ-
ence lies in the introduction and abolition of customs,
inasmuch as a legislator seems more ready to connive
at the use of customs than at their opposition to a
newly published code, — which position is entirely intel-
ligible. However, all customs which are not of the ven-
erable age indicated, should be suppressed, although com-
mon sense must even here have its sway; for common
sense is based upon the dictates of reason and goes a
long way.
Can. 29
Consuetudo est optima legum interpres.
Custom is the best interpreter of laws.
This canon needs no further explanation in view of
what we have said above.
abolition of customs
Can. 30
Firrno praescripto can. 5, consuetudo contra legem
vel praeter legem per contrariam consuetudinem aut
legem revocatur; sed, nisi expressam de iisdem men-
tioncm fecerit, lex non revocat consuetudines cente-
narias aut immemorabiles, nee lex generalis consuetu-
dines particulares.
Can. 5 remaining in full force, a custom either
against or beyond the law may be revoked by a
io which the Gloss adds: " diligr.nter live privilegium inducit."
noUndum quod consuetudo ilia iui
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
|M
■--.
114 GENERAL RULES
contrary custom or law; however, a law, unless
it makes express mention thereof, does not abol-
ish centenary or immemorial customs, nor does a
general law abolish particular customs.
That a contrary custom may make another custom in-
effective, is evident; for custom is law, and therefore,
as a law is revoked by a contrary law, so also a custom
may be revoked by a contrary custom. Only we must
notice that the contrary custom must fully cover the
old custom and be vested with the requisites set forth
above. As to the effect which a contrary law exerts upon
a custom, the canon says that it does not revoke a cus-
tom unless it contains an express clause to that effect.
Such clauses are: "nulla obstante consuetudine/' and
"nulla obstante consuetudine etiam immcmoriali." The
first clause revokes any general (not particular) custom
less than centennial or immemorial ; the second abolishes
also immemorial customs. If the lawgiver wishes to do
away with some particular custom, he adds the clause
" non obstante consuetudine etiam particulari " or some
similar expression. A custom expressly called * repro-
bata " is abolished even by the first-quoted simple clause.17
One last question : Can a custom arise against the new
Code itself? The same query was made concerning cus-
toms arising against the decrees of the Council of Trent.
Hence we answer with the majority of canonists:18 A
custom branded as reprobate, being unreasonable, cannot
be admitted at all or only with greatest difficulty, but
other customs may arise also against the new Code. For
the resp. clausula e are nothing but disciplinary laws, and
disciplinary laws admit of a contrary custom.
17 Cf. Reiffcnstuel, I, 4, n. 190. 18 Cfr. Aichner, /. c, § 17, 3-
oogle
v ,|y„ Original fro ni
UNIVERSITY OF WISCONSIN
■
TITLE III
ON THE RECKONING OF TIME
The present title does not deal with the chronology
employed in papal documents, but with the canonical
method of calculating time. It may be noted that
since the pontificate of Gregory VII (1073-85) the reign
of each pontiff commenced with his election, and papal
documents were dated according to the year of the Incar-
nation (25 March) or Christmas Day. Now they are
dated according to the calendar year. The indictions
(periods of fifteen years) have also disappeared with-
out detriment to chronology. This premised, we will
now follow the Code in its determination of the value
and duration of the different components of time.
Can. 31
Salvis legibus liturgicis, ternpus, nisi aliud expresse
caveatur, supputetur ad normam canonum qui se-
quuntur.
Aside from the liturgical laws, time must be
reckoned according to the norms established in
the following canons, unless a different method is
expressly provided.
The liturgical norms which are here excepted from
the following rules, concern the liturgical year coramenc-
ing with the first Sunday of Advent, the celebration of
feastdays (a vespera usque ad vesperam), as far as the
"5
ogle
£ " -» v J„ Original fro m
UNIVERSITY OF WISCONSIN
n6 GENERAL RULES
office is concerned, and the gaining of indulgences. In
these matters then, which were noted in the computus ec-
clesiasticus, the Code does not make a change.1
Cak. 32
§ 1. Dies constat 24 horis continuo supputandis a
media nocte, hebdomada 7 diebus.
§ 2. In iure nomine mensis venit spatium 30, anni
vero spatium 365 dierum, nisi mensis et annus dicantur
sumendi prout sunt in calendario.
■
§ I. The day consists of twenty-four hours
calculated from midnight; the week of seven
days.
§ 2. The law reckons the month as a period
of thirty days, the year as a period of 365 days,
unless it is expressly declared that month and
year are to be taken as they are in the calendar.
This is to be understood in the case only of several
months or years being enumerated without any further
designation, or in the sense of a period, where a month
would equal 30 days, and vice versa.
Can. 33
§ 1. In supputandis horis diei standum est communi
loci usui; sed in privata Missae celebratione, in privata
horarum canonicarum recitatione, in sacra communione
recipienda ct in ieiunii vel abstinentiae lege servanda,
licet alia sit usualis loci supputatio, potest quis sequi
-
1 Cf. Oavatiti, Thesaurus S. Hi- 1898, I, 123 ff. Concerning indul-
tuum, Venet., 1740, II, 17 ff.; Van gences S. O- (tie indulg.), Jan. 26,
dcr S tap pen, Sacra Liturgia, Mcchl., 191 1.
ogle
f** ^ v ,1,., Originalfrorn
UNIVERSITY OF WISCONSIN
CANON 33 "7
St
tempus aut locale sive verum sive medium, aut legale
sive regionale sive aliud extraordinarium.
§ 2. Quod attinet ad tetnpus urgendi contractuum
obligationcs, servctur, nisi aliter expressa pactione con-
ventual fuerit, praescriptum iuris civilis in territorio
vigentis.
■
§ i. In reckoning the hours of the day, the
common local usage must be followed ; but in the
private celebration of Mass, in the private recita-
tion of the Breviary, in receiving Holy Com-
munion, and in the observance of fast and ab-
stinence, though the usual computation of time
differs, one may follow the local time, true or
mean, or the legal time, regional or extraordi-
| nary.
§ 2. When there is question of enforcing con-
tractual obligations, the time prescribed by civil
law should be followed, unless otherwise ex-
pressly agreed upon.
Common usage reckons the day from midnight to mid-
night. In some countries twice twelve hours are counted,
while in others (e. g., Italy) the watch shows twenty-
four continuous hours. Some liberty is granted in the
private celebration of Mass, the private recitation of the
Breviary, receiving Holy Communion and observing the
laws of fast and abstinence In these matters one may
follow local or legal custom, although both may differ
from common usage. Local custom may have accepted
the real or mean solar time, whilst legal custom is that
assumed by law and acknowledged in a province or coun-
>gle
Original from
UNIVERSITY OF WISCONSIN
■
118 GENERAL HULLS
try. The astronomical calculation of a day would be
that of sidereal time, which differs from the mean solar
time, the solar day being some three minutes and fifty-five
seconds longer than the sidereal day.2 What is of prac-
tical use, however, is to know that in the United States
there are five different kinds of time, 150 of longitude
corresponding exactly to one hour of time difference.
The time of the 60th meridian is called Colonial, that of
the 75th Meridian, Eastern, that of the 90th, Central,
that of the 105th, Mountain, that of the 120th, Pacific
time* In fulfilling the duties mentioned in the canon,
one may follow sidereal time, if one is a good astron-
omer, or the mean solar time, generally called " railroad
time."
In matters of contract the time assumed by civil law
must be followed, unless otherwise agreed upon by the
contracting parties. In this country the laws of the
different States will, therefore, have to be consulted.4
The next canon enters into details which touch more
closely upon the starting and finishing point of a given
period, and a distinction is drawn between juridical and
calendar time. It is well known that the English law,
for instance, has a double way of counting time. Thus
when a deed speaks of a month, it is a lunar month con-
sisting of 28 days, unless the context shows that a calen-
dar month of 31 days was intended. Thus also, accord-
ing to English law, when a calendar month's notice of
action is required, the day on which it is served is in-
cluded and reckoned one of the days; and therefore, if
a notice be served on the 28th of April, it expires on the
27th of May, and the action may be commenced on
2Cfr. Youiik, Manual of Astron- cycl, 1904, Vol. XIX, p. aor.
omy, 1902, p. 8-v ff. * Cir. BlacVstone-Cooley, /. c, II,
8 Cfr. the New International En- p. 141 f.
% ,1,., " riginal from
UNIVERSITY OF WISCONSIN
>gk
CANON 34 119
the 28th. The same law, however, in ecclesiastical mat-
ters calculates the month according to the calendar or
solar reckoning.6 This premised, let us see what the
Code determines:
Can. 34
-
§ i. Si mensis et annus dcsignentur proprio nomine
vel aequivalenter, ex. gr., mense februaiio, anno
proxime futuro, sumantur prout sunt in calendario.
§ 2. Si terminus a quo nee explicite nee implicite
assignetur, ex. gr., suspensio a Missae celebratione per
mensem aut duos annos, tres in anno vacationum
menses, etc., tempus supputetur de momenta ad mo-
mentum ; et si tempus sit continuum, ut in allato prime*
exemplo, menses et anni sumantur prout sunt in
calendario; si intermissum, hebdomada intelligatur 7
dierum, mensis 30, annus 365.
§ 3. Si tempus constet uno vel pluribus mensibus aut
annis, una vel pluribus hebdomadibus aut tandem
pluribus diebus, et terminus a quo explicite vel impli-
cite assignetur :
i.° Menses et anni sumantur prout sunt in calen-
dario;
2.0 Si terminus a quo coincidat cum initio diei, ex.
gr., duo vacationum menses a die is augusti, primus
dies ad explendam numerationem computetur et
tempus finiatur incipiente ultimo die eiusdem numeri ;
3.0 Si terminus a quo non coincidat cum initio diei,
ex. gr., decimus quaitus aetatis annus, annus novitia-
tus, octiduum a vacatione sedis episcopalis, decen-
dium ad appellandum, etc., primus dies ne computetur
et tempus finiatur expleto ultimo die eiusdem numeri;
4.0 Quod si mensis die eiusdem numeri careat, ex.
o tfr Blackstone-Cooley, X, p. 141.
jle
Original fro rn
UNIVERSITY OF WISCONSIN
iso GENERAL RULES
gr., unus mensis a die 30 Ianuarii, tunc pro diverso
casu tcmpus finiatur incipiente vel explcto ultimo die
mensis ;
5.0 Si agatur de actibus eiusdem generis statis tera-
poribus renovandis, ex. gr., triennium ad pioiessionem
perpetuam post temporariam, triennium ahudve tern-
pons spatium ad electionem renovandam, etc., tempus
finitur eodem recurrente die quo incepit, sed novus
actus per integrum cundem diem poni potest.
On account of the technical character of this canon,
we shall add our explanation immediately to each para-
graph.
1. If months and years are designated by their names,
or in equivalent terms, they must be understood as calen-
dar months and years. Thus the month of February must
be taken as comprising 28 days; if an equivalent term
is used, as, e. g., " in the next following year," let us say
1920, the leap year is understood, or 366 days, wrhile the
uneven years have each but 365 days.
2. If the starting point or date from which anything
is calculated, is neither explicitly nor implicitly deter-
mined? the time must be reckoned from moment to mo-
ment, thus, e. g., a suspension from the celebration of
Mass for a month or two years commences on the day
and hour when the letter was received by the suspended
priest. The same holds good concerning the other ex-
ample alleged, viz., three months' vacation a year. The
canon further explains the first example thus : if the time
or period is continuous (as in the case of suspension), the
calendar month and year are to be understood; hence
■
© Implicitly, for instance, after Easter Sunday, or on the feast of Pentecost,
next month.
oogle
C^ ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 34 121
%
if the letter of suspension arrives at 5 p. m., let us say, on
the 5th of October, the suspension lasts until December
5th, 5 p. m. If the time or period is or may be inter-
rupted, as in the example of leave of absence, a week
means 7 days, a month 30 days, a year 365 days,
3. If the time or period consists of one or more months,
or years, or of one or more weeks, or of several days,
and the starting point is explicitly or implicitly deter-
mined, various hypotheses may arise.
1°. Months and years are always assumed to be cal-
endar ones.
2°. If the starting point (terminus a quo) coincides
with the beginning of the day, the first is included in
reckoning the time, and the time or period expires with
the beginning of the last day of the same number, e. g.,
if a two months' vacation is given, beginning August 15th,
the time runs out on the morning of October 15th.
30. If the starting point does not coincide with the be-
ginning of the day, the first day is counted in and the term
expires when the last day of the same figure is completed.
Thus, if one commences a year's novitiate on the after-
noon, say of the 5th of October, 1917, he can make
his profession on October 6th, 1918, because the last day
is complete only after the last stroke of midnight, October
5th, or as soon as October 6th has commenced.
40. If the month has no day of the same number, say
one month from January 30th, then, duly considering
diverse cases, the term expires either with the beginning
or ending of the last day. What "due consideration"
means is evident from the two foregoing hypotheses;
wherefore in the first case the month from January 30th
is the 28th or 29th of February in leap years, if the
terminus a quo fell on the beginning of the day ; it ends
< *r\r*nl*> Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
122 GENERAL RULES
on March 1st, if the terminus a quo fell on a later part of
the day.
Here the difficulty may be mooted as to what is under-
stood by the beginning of a day. The Code (can. 32)
merely says that the days must be completed from mid-
night. Civil law, generally speaking, rejects fractions of
a day.7 Canon law, by enjoining computation " from
moment to moment," if nothing is said to the contrary,
considers fractions.8 Hence, speaking of the beginning
of a day (initium diei), the law means that part which,
according to common usage, forms the first portion of the
day. How far that can be stretched, is mere guesswork ;
but to extend it to noon would, in our opinion, be against
the intention of the law as well as contrary to common
usage. Nine o'clock would be about the limit.
50. If a recurrence of the same act at stated times is
in question, the term expires on the same recurring day,
but the new act may be performed throughout the whole
recurring day, for instance, profession after a term of
three years, temporary vows, triennial elections, for in-
stance, October 5th, 1917 — October 5th, 1920.
EL
Can. 35
Tcmpus utile illud intelligitur quod pro cxercitio aut
prosecutione sui iuris ita alicui competit ut ignoranti
aut agere non valenti non currat; continuum, quod
nullam patitur interruptionem.
The tempus utile is the time granted for exer-
cising or prosecuting certain rights, so that in
case one should ignore it or be unable to make
use of it, the lapse of time would not damage or
1 BUckstone-Coolej, L c, p. 141. 8 ReiffenBtuel, U, 27, n. in.
ibyCiOOglc
Original fro ni
UNIVERSITY OF WISCONSIN
-'
CANON 35 123
prevent him; the tempus continuum is that which
runs without interruption.
The so-called tempus utile is distinguished from the
tempus continuum, i. e.t time which runs continually
without regard to ferial days or the presence or absence
of persons, etc. For instance, if the tempus utile for a
restitutio in integrum were four years, and one were
not aware of having been wronged, the time would not
commence with the day of the wrongdoing but with the
day when the defendant realized that action must begin ; ■
thus also in cases of summons or citations.
1 Ctr. Engel, I, 41, n. 11 de in integrum restiutlone.
( *r\nnl*> Original from
y^jOO^K. UNIVERSITY OF WISCONSIN
p
TITLE IV
ON RESCRIPTS
A rescript is a written answer given by a legitimate ec-
clesiastical superior, either directly, or indirectly through
the medium of a competent tribunal, to a question pro-
posed or a favor asked for. As we have stated above,
as early as the eleventh century there were two kinds of
papal letters, litterac grattoe and litterae justttiae. Lit-
terae gratiae or rescripts of favor proceed from the mere
liberality — although perhaps petitioned — of the pontiff
or bishop in matters wholly subject to their good pleas-
ure and uncontested, e. g., a nomination to a domestic
prelacy. Litterae justitiae refer to justiciable matter to
be settled between contending parties in legal form, e. g.,
boundary disputes, questions of precedence, etc.
The definition says that rescripts may be granted
directly or indirectly. To understand the difference be-
tween the two species note the fact that, as a general
rule, the Pope issues rescripts through the ordinary
Roman tribunals; yet he is not bound to use that means
t (can. 38).
Besides, it has become customary to send rescripts
granted by the Roman Curia to an executor. The execu-
tor, as a rule, is a dignitary, i. c, one constituted in a real
or honorary dignity, most commonly the Ordinary of
the diocese or, for religious, the superior general or
provincial. There is a distinction between the executor
124
,1,., Original from
UNIVERSITY OF WISCONSIN
>gk
CANON 36 125
voluntarius and the executor necessarius; the former
acts as a judge, i. e., he decides whether or not the rescript
can be put into effect (can. 54) ; whereas the executor
necessarius is obliged to sign and deliver the rescript to
the person concerned. Whether an executor is volun-
tarius or necessarius depends on the clauses added to
the rescript. If the conditional particles "si" or " dum-
modo " arc to be found in the rescript, the executor is
considered voluntarius, not a mere instrument for execut-
ing the will of the superior,2 and hence is obliged to pro-
ceed as if he had received a mandate or authoritative
commission, by which jurisdiction is given to him in the
case (can. 55). These preliminary notions supposed,
- the Code first establishes who ate capable of demanding
a rescript, either from the Apostolic See or the Ordinaries,
and lays down the rule that all may petition for a re-
script, unless expressly incapacited under the law.
Can. 36
§ 1. Rescripta turn Scdis Apostolicae turn alio rum
Ordinariorum impetrari libere possunt ab omnibus qui
expresse non prohibentur.
§ 2. Gratiae et dispensations omne genus a Sede
Apostolica concessac etiam censura irretitis validac
sunt, salvo praescripto can. 2265, § 2, 2275, n. 3, 2283.
§ i. Rescripts may be freely asked both from
the Apostolic See and from other Ordinaries by
all who are not expressly prohibited (from asking
for them).
2 Sometimes an exsecutor mirtus jaeienda, which is a favor granted
is inserted between the two men- and only needs execution; this kind
tioned. An ersreutor mirttts in nne of executorship may be called a
irho is authorized to execute a grai%a " nudum ministerium."
oogle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
126 GENERAL RULES
§ 2. Favors and dispensations of all kinds
granted by the Holy See are valid, even if the
beneficiaries are under censure, with due regard,
however, to can. 2265, § 2, can. 2275, n. 3, and
can. 2283.
Favors and dispensations of all kinds granted by the
Holy See even to censured persons are valid, exceptis
excipicndis. The law prohibits the following from ask-
ing for a rescript : All excommunicated persons, which
heading includes all heretics,3 all those excommunicated
after a declaratory or condemnatory sentence, and all
who are personally interdicted or suspended, unless the
rescript mentions the fact of excommunication. This is
frequently done by the addition of the clause, " absolutis
a censttris," etc., which has no other effect than to
render the petitioner capable of receiving the rescript;
hence de facto he is not absolved from excommunication.
It must be furthermore noted that, according to all
authors, even excommunicated persons are allowed to
ask for a rescript revoking their excommunication, inter-
dict, suspension, etc., else the way of justice would be
precluded to them.
rl
Can. 37
Rescriptum impetrari potest pro alio etiam praetcr
cius assensum; et licet ipse possit gratia per rescrip-
tum concessa non uti, rescriptum tamen valet ante eius
acceptationem, nisi aliud ex appositis clausulis ap-
pareat.
■
A rescript may be obtained for another (or
S Cfr. c. t3. X. V. 7 de haereticia.
I Original from
■OOgie UNIVERSITY OF WISCONSIN
CANON 38 127
third) person even without the latter's consent;
and though this third person may not be able to
avail himself of the favor conceded by the re-
script, yet the rescript is valid before its accept-
ance, unless otherwise provided for in the ap-
pended clauses.
The wording of this canon is not entirely clear ; but
comparing it with c. 28, X, 1, 3, § 1, we may conclude that
not only rescripts of favor, as the Decretals (1. c. ) state,
but also rescripts of justice, i. e., all kinds of rescripts,
are valid before the act of acceptance is made by the party
unable (e. g., because a heretic) to profit by the rescript.
The " appended clauses " may regard either the capa-
bility of the third person or the acceptation, which may
be conditioned by circumstances of absence or other im-
pediments.
date and requisites
Can. 38
Rescripta quibus gratia conceditur sine intcriecto
cxsccutore, cffcctum habent a momcnto quo datae sunt
litterae; cetera a tempore exsecutionis.
Rescripts by which a favor is granted without
the agency of an executor, take effect from the
date of their signature; all others, from the date
of execution.
Hence, e. g.% a rescript granting a personal or, generally
speaking, a private favor is valid as soon as the Pope has
signed it. All other rescripts take effect from the date
of the executor's signature.
iOi >gle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
128 GENERAL RULES
What about a telephone or telegraph message? Leav-
ing aside matrimonial and other weighty matters, the
telephone or telegraph may be used in order to transmit
notice whether the petition was granted or not. It is cer-
tain that the Papal Secretary of State may use this means.
Generally speaking, the person from whom notice is de-
manded must he an official who is in a position to know.
Private persons are not to be relied upon.
According to Canon 56 (infra, p. 145) the rescripts
which are handed over to an executor demand execution
in writing if they regard the forum externum. However,
after the executor has properly investigated the matter
and signed the document, he may, if asked for, transmit an
answer by telephone or telegraph and send the written
document afterwards. Note, however, that such a trans-
mission is the exception, not the rule.*
The Code insists on written execution only for those re-
scripts which do not directly concern the conscience, and
hence those touching the forum conscicntiac may be trans-
mitted by these " extraordinary " means, provided, of
course the sigilhtm confessionis is safeguarded.
Can. 39
Conditioner in rcscriptis tunc tantum essentiales pro
eorundem validitate censentur, cum per particulas si,
dummodo, vel aliam eiusdem signification is exprimun-
tur.
Conditions made in rescripts are essential to
their validity only if they are expressed by the
4 The Secretariate of State. 10 Cfr. De Smedt. D$ Spons. et Mot..
Dec, 1891, has declared this kind of ioio, I. p. 532. P- 547-
transmission an extraordinary one.
jle
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 40 129
particles si, dummodo, or others of the same
meaning.
Can. 40
In omnibus rescriptis subintelligenda est, ctsi non
expressa, conditio : Si preces veritate nitantur, salvo
pracscripto can. 45, 1054.
In all rescripts, even when not expressly stated,
this condition must be understood: // the re-
quest is founded on truth, with due regard to
can. 45 and 1054.
Phrases of similar meaning as si and dummodo are
the ablative absolute, e. g. " constito de assertis " or
" narratis" which is truly a conditional clause, so that if
it were not verified the rescript would be invalid.5 This
condition, "si preces veritate innitantur" is implied in
every rescript, with the exception of " motu proprio" with
some modifications (see below). The reasons for a pe-
tition, and consequently for the validity of the grant, must
actually exist at the time the rescript is signed by the
grantor, provided no executor is assigned ; if an executor
is selected, the reason must be verified at the time when
the executor signs the document. For instance, a rescript
permitting a private oratory is valid when all the condi-
tions for such an oratory are fulfilled at the date when
the Ordinary (to whom such rescripts are generally di-
rected) signs the paper. This is the meaning of Can. 41.
■
Can. 41
In rescriptis quorum nullus est exsecutor, preces
5 Cf . Barbosa, Tractatus Varii, de clausulis, n. 25, p. 375.
>Ie
v ,1,., Original fro rm
UNIVERSITY OF WISCONSIN
-
■
pi
130 GENERAL RULES
vcritate nitantur oportet tempore quo rescriptum
datum est ; in ceteris tempore exsecutionis.
In rescripts for which no executor is appointed,
the conditions upon which the petition is based
must be real at the time the rescript is signed; in
all others, at the time of the execution.
It may happen, however, that the grantor, and per-
haps the executor also, were deceived by the petitioner,
who either did not state the full truth (subreptio) or al-
leged a reason which had no foundation in fact
(obreptio). Such a deception may arise either from
ignorance or malice." This difference is not mentioned in
the Code, which simply says:
Can. 42
V
§1. Reticentia veri. seu subreptio, in precibus non
obstat quorninus rescriptum vim habeat ratumque sit,
dummodo expressa fuerint quae de stylo Curiae sunt
ad validitatem exprimenda.
§ 2. Nee obstat expositio falsi, seu obreptio, dum-
modo vel unica causa proposita vel ex pluribus pro-
posals una saltern motiva vera sit.
§ 3. Vitium obreptionis vel subreptionis in una tan-
tum parte rescript! aliam non inf.rmat, si una simul
a
plures gratiae per rescriptum concedantur.
§ i. Failure to state the full truth {subreptio)
in the petition does not prevent a rescript from
being valid and going into effect, provided men-
« Cfr. c. ao, X, T, 3, which chapter regards the distinction between igno-
18 called in the nummary the " key ranct and malice.
of the whole title "; our canon dis-
jle
Original fro m
UNIVERSITY OF WISCONSIN
-'
p
CANON 42 131
tion was made of whatever the stylus Curiae re-
quires for validity.
§ 2. Neither is a rescript obtained by the alle-
gation of a falsehood (obreptio) invalid, provided
the sole reason, or at least one of the several rea-
sons alleged, is true.
§ 3. Either defect, obreptio or subreptio, oc-
curring in only one part of a rescript, does not in-
validate the other parts, if several favors are
granted simultaneously by the same rescript.
As to the first clause (§ 1), the stylus Curiae pre-
scribes certain canonical reasons for matrimony, the dif-
ferent lines and degrees, as well as certain formularies
to be used in obtaining faculties or dispensations from
the various Roman Congregations. This customary
style is, of course, best known to the agents engaged in
business with these Congregations. If a petition is not
properly drawn up, it is usually returned to the peti-
tionerj to be corrected.7
As to § 2 : The motive cause or final reason (can. 45)
is the one which moves the superior to grant a petition.
If, therefore, this one is false, the rescript will be null
and void, and the petitioner can neither licitly nor validly
use the favor granted therein.
Note that our canon makes a distinction in favor of
subreptio, which the Corpus Juris did not admit under
the circumstance of deliberate falsehood, either expressed
or suppressed.9 The new Code is also benign in ad-
mitting the divisibility of a rescript which contains sev-
-
7 The stylus Curiae has been de- p. 15. The clausula* also belong to
scribed above; cfr. alio Putzer, the " Roman Style."
Comment, in Focultates Apost., 1807, b Cfr. c. so, X, I, 3.
*Ie
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
■
132 GENERAL RULES
cral favors, e. g., that of saying de requiem and reciting
other prayers instead of the Breviary.
To provide for a uniform procedure and to avoid con-
fusion, as well as to prevent rescripts from being, as
it were, received stealthily, the following two canons have
been inserted :
Can. 43
Gratia ab una Sacra Congregationc vcl Officio
Romanac Curiae denegata, invalide ab alia Sacra Con-
gregatione vcl Officio aut a loci Ordinario, etsi potesta-
tem habente, conceditur sine assensu Sacrae Congre-
gationis vel Officii quocum vel quibuscum agi coeptum
fuit, salvo iure S. Poenitentiariae pro foro interno.
A favor denied by one Sacred Congregation or
Office of the Roman Curia cannot validly be
granted by another Congregation or Office, or by
the local Ordinary, even though he have the
power, except with the consent of the S. Congre-
gation or Office which handled the case first, —
without, however, violating the right of the S.
Penitentiary in matters of conscience.
O
I
Can. 44
§ 1. Nemo gratiam a proprio Ordinario denegatam ab
alio Ordinario petat, nulla facta denegationis men-
tione ; facta autem mentione, Ordinarius gratiam nc
concedat, nisi habitis a priore Ordinario denegationis
rationibus.
§ 2. Gratia a Vicario Generali denegata et postca,
nulla facta huius denegationis mentione, ab Episcopo
impetrata, invalida est; gratia autem ab Episcopo
( *r\r*nl*> Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CANON 44 133
denegata ncquit validc, etiam facta denegationis men-
tione, a Vicario Generali, non conscntiente Episcopo,
impetrari.
§ i. No one shall ask another Ordinary for a
favor refused by his own Ordinary without mak-
ing mention of the refusal; if mention is made,
the second Ordinary shall not grant the favor
until informed of the reasons for the former
Ordinary's refusal.
§ 2. A favor denied by the Vicar General and
later obtained from the Bishop, without mention
of the refusal, is invalid; a favor denied by the
Bishop cannot validly be asked of the Vicar Gen-
eral without the Bishop's consent, even if men-
tion of the refusal is made.
The underlying principle of this regulation is that the
Roman Curia, as well as the Bishop and his Vicar Gen-
eral form a unit. Two different Bishops constitute two
separate tribunals, wherefore in § 1 of Can. 44 the in-
validity of the rescripts is not asserted,0 but merely their
illicitness, for the purpose touched above.
*l «*-.**tri ~.nn~n*n "
THE CLAUSE MOTU PROPRIO
Boniface VIII made a distinction between a rescript
given " Motu proprio," which, he says, proceeds from
pure liberality, and one obtained by petition.10 In course
of time, especially since Innocent VIII, " Motu proprios M
became more frequent and were no longer acts of grace,
0 The "novum genu* merci- 10 Cf. c. 23, 6m, III, 4 de prae-
monii " mentioned in c. 28, h. t., is bendis.
thereby precluded.
jle
k ,] , Original from
UNIVERSITY OF WISCONSIN
134 GENERAL RULES
but could be petitioned for (ad instantiam) \ the Supreme
Pontiff merely added " Motu proprio " in order to give
full and unlimited effect. The new Code has partly re-
tained this custom and partly modified it, as follows :
Can. 45
Cum rcscriptis ad preces alicuius impetratis apponi-
tur clausula: Motu proprio, valent quidem ea, si in
precibus reticeatur Veritas alioquin necessario expri-
mcnda, non tamen si falsa causa finalis eaque unica
proponatur, salvo praescripto can. 1054.
■
Rescripts issued with the clause Motu proprio
are valid, even if subreptitious, unless the final
reason, if it be the only one, is falsely alleged
For instance, if a rescript were obtained dispensing
the petitioner from reciting the Breviary on account of
weak eyes, and this claim rested on mere imagination,
the rescript would be invalid. There are three other
cases in which a " Motu proprio " is of no effect :
Can. 46
Rescripta etiam Motu proprio concessa personae de
jure communi inhabili ad consequendam gratiam de
qua agitur, itemque edita contra alicuius loci legifcimam
consuetudinem vel statutum peculiare, vel contra ius
alteri iam quaesitum, non sustinentur, nisi expressa
derogatoria clausula rescripto apponatur.
A rescript, even though granted Motu proprio,
is of no effect if given to a person incapable of the
favor granted under the common law, or against
the lawful custom or particular statute of the
jle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
",
CANON 47 135
place, or against the acquired right of another
person, unless a derogatory clause is appended to
the rescript.
A rescript is invalid if given to a person who is incapa-
ble of the favor u granted because the law itself makes
him incapable. The superior is not supposed to contra-
dict the law. A favor is equally invalid if given against
the lawful custom or a particular statute of the place or
if it trenches on the lawfully acquired right of a third
person. The reason for the last two provisions is the
ignorance of a superior concerning particular laws and the
jura tertii, which he is not supposed to infringe upon.12
However, if a derogatory clause is appended directly
affecting the incapability of the person, or particular laws,
or the jus tertii, the rescript is valid. Exception is made
in favor of matrimonial dispensations from minor im-
pediments; see can. 1054.
MISTAKES IN RESCRIPTS
n
Can. 47
Rescripta non Hunt irrita ob errorcm in nomine
personae cui vel a qua conceduntur, aut loci in quo
ipsa moratur, aut rei de qua agitur, dummodo, iudicio
Ordinarii, nulla sit de ipsa persona vel re dubitatio.
Errors affecting the name of the person to
whom or by whom a rescript is issued, or the place
where the person dwells,18 or the favor itself, do
11 For instance, if the petitioner capable of the favor and coose-
•uffers from irregularity, defect of quently of the rescript.
age, illegitimate birth. Reiffenrtuel, 12 Cfr. c. 8. 6°, I, 3.
I, 3, n. 208 f. Of course, if the re- it However, a mistake about the
script is issued precisely to take away diocese would invalidate the rescript,
these defects, the petitioner becomes Cfr, c. 34, X, I, 3.
jle
k ,|,, Original fro m
UNIVERSITY OF WISCONSIN
Q
136 GENERAL RULES
not render a rescript invalid, if the Ordinary is
persuaded that no doubt exists as to the identity
of the person or the thing asked for.
We may add, however, that as formerly, so now,
a manifest error or an erasure in the dispositive and es-
sential part would cast serious suspicion upon the genu-
ineness of a papal document.1*
s
PREFERENCE, INTERPRETATION, AND PRESENTATION
If several rescripts were obtained about one and the
same question or subject-matter, e. g.t some point of
rubrics, let us say the recital of old or new canticles,1*
one rescript contradicting the other, the question arises,
which one must be followed ? The Code answers as f ol-
lows:
Can. 48
§ 1. Si contingat ut de una eademque re duo rcscripta
inter se contraria impetrentur, peculiare, in iis quae
peculiariter exprimuntur, praevalet generali.
§ 2. Si sint aeque peculiaria aut generalia, prius
tempore praevalet posteriori, nisi in altero Hat ex-
pressa mentio de priore, aut nisi prior impetratur dolo
vel notabili negligentia suo rescripto usus non fuerit.
§ 3- Quod si eodem die fuerint concessa nee liqueat
uter prior impetraverit, utrumque irritum est, et, si
res ferat, rursus ad eum qui rescripta dedit, est re-
currendum.
§ 1. If it should happen that two rescripts re-
I+C 11, X, I, 3; c. 6, X, II, 22 edidioe Order concerning a decree
de Fide instrumentorum. of June 9, 191s. and a rescript of
is This happened in the Swiss- later date; but the mistake waa made
American Congregation of the Ben- in Rome.
oogle
Original from
UNIVERSITY OF WISCONSIN
-■
■
CANON 49 137
ferring to the same matter are contradictory,
the rescript containing a peculiar or particular
enactment must be accepted in preference to the
one containing a general enactment.
§ 2. If both rescripts are alike particular or
general, the one which is dated or received earlier
must be preferred to that of later date, unless spe-
cific mention is made in the latter rescript of the
earlier one, or unless the first petitioner, through
fraud or notable negligence, has not made use of
the earlier rescript.
§3. If the two rescripts were issued on the
same day, and it is not apparent which was ob-
tained first, both are invalid, and, if feasible, re-
course must be had to the grantor.
According to § 1, a special favor is to be preferred to a
general one, because " species derogat generi." 10
Fraud may be committed by withholding the document,
and notable negligence would be failure to make use of
the favor granted for one year.17
Can. 49
Rescripta intelligenda sunt secundum propriam ver-
borum significationem ct communem loquendi usum,
ncc debent ad casus alios praeter expressos extendi.
Rescripts must be interpreted according to the
proper meaning of the words and common par-
lfl Reg. juris 34 in 6°. 11 possible in marriage rescripts, but
it Cf. cc. 9, 23, X, lt 3. Fraud especially In rescripts of justice.
*Ic
J ^ Original from
UNIVERSITY OF WISCONSIN
138 GENERAL RULES
lance, nor are they to be extended to cases not
mentioned therein,18
Four kinds of rescripts must be interpreted strictly,
i. e.j neither extensively nor restrictively, but according to
the exact wording of the text, to wit: (a) rescripts of
justice which are intended to settle a controversy; (b)
those which may injure the acquired rights of others;
(c) those which are adverse to the special laws of private
persons; and (d) those which contain an appointment to
an ecclesiastical benefice. All other rescripts may be
broadly and benignly interpreted; " favor es ampliandi
sunt" The reason for interpreting the first kind strictly
is that the superior wishes to prevent litigation and this
object could not be accomplished if a broad interpretation
were admissible.18 The reason for interpreting the sec-
ond and third kind of rescripts strictly must be sought in
the intention of the superior of defending the rights of
others, especially if these are acquired by privileges, e. g.,
of exempt religious. The reason for a strict interpreta-
tion of rescripts in beneficiary matters lies in the fact
that such rescripts favor ambition. Hence if, e. g.t a dig-
nity or office in a cathedral chapter is conferred, the two
are not to be taken promiscuously. All other rescripts
of favor are susceptible of a broad interpretation, be-
cause " plenissima alias in beneficiis interprelatio faci-
enda." zo
As to presentation, which is nothing else but the show-
ing of the rescript to the Ordinary, it must be observed
that this act, though not necessary, is at least very becom-
ing, inasmuch as the diocesan Bishop is the proper guard-
ian of law and discipline in his territory. Hence, in
18 C. 14. 6°, T, 3. 20 Cfr. cc. 4, 27, 6\ III, f 4$
X* Cfr, c. 28, X, I, 3. praebyidift.
;Ic
% ,] , Original fro ni
UNIVERSITY OF WISCONSIN
CANON si 139
rescripts giving faculties for various blessings the claus-
ula is found, " cum consensu Ordinarii"
Can. 50
In dubio, rescripta quae ad lites referuntur, vel iura
aliis quaesita lacdunt, vel advcrsantur legi in coramo-
dum privatorurn, vel denique impetrata fuerunt ad
beneficii ecclesiastic! assecutioncm, strictam interpre-
tationem recipiunt; cetera omnia latam.
In case of doubt, rescripts which pertain to dis-
putes, or which trench on the acquired rights of
others, or which reverse the law in favor of pri-
vate parties, or, finally, which were given for the
attainment of an ecclesiastical benefice, demand a
strict interpretation ; all others may be interpreted
broadly.
The following canons state the duty of presentation
as limited by certain conditions.
L
Can. 51
Rescriptum Sedis Apostolicae in quo nullus datur
exsecutor, tunc tantum debet Ordinario impetrantis
praescntari, cum id in eisdem litteris praecipitur, aut
de rebus agitur publicis, aut comprobare conditiones
quasdam oportet.
A rescript of the Apostolic See which des-
ignates no executor must be presented to the
Ordinary of the petitioner only in case the presen-
tation is enjoined in the document itself, or if
G I Original from
UOglL UNIVERSITY QFWI5C0NSIN
■
140 GENERAL RULES
there is question of public affairs, or if there are
conditions that are subject to probation [i. e., as-
certaining the truth].
The first condition is evident. The second, which
concerns public acts (de rebus agitur publicist, seems
to refer to such rescripts as contain a favor to be used
publicly. Such favors would be, for instance, privileges
attached to a sanctuary or benefice, or a distinctive ec-
clesiastical dress, or permission to collect alms.21 The
last condition evidently has reference to rescripts re-
garding oratories, matrimonial dispensations, etc.
As to the time within which rescripts must be pre-
sented, canon 52 states :
Can. 52
■
Rescripta, quorum praesentationi nullum est defini-
tum tempus, possunt exsecutori exhiberi quovis tem-
pore, modo absit fraus et dolus.
Rescripts for the presentation of which no defi-
nite time is set, may be exhibited to the executor
at any time, provided fraud and deceit are
excluded.
Note that this canon does not distinguish between
rescripts of justice and rescripts of favor,25 but embraces
both kinds, provided only fraud and deceit be avoided;
for fraud and deceit deserve no indulgence and are con-
trary to the spirit of order.
21 Cfr. c. 6, X, I, 3 concerning 22 Formerly rescripts of justice
Cistercians, who may collect tithes had to be presented within a year
without heeding an apostolic rescript, from the date of receipt; the Code
unless mention is made therein of makes no distinction between the
that privilege. two speclca of rescripts in this re-
tard.
oogle
f^ ^ s ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 53 141
o
THE OFFICE OF EXECUTOR
We said above that it is the rule io choose an " execu-
tor " to investigate the matter and persons demanding a
rescript. Certain duties, therefore, are incumbent on the
executor, who may become the cause of grave mistakes
which render a rescript invalid. Therefore the follow-
ing canons more closely describe the functions of the
executor.
Can. 53
Rescripti exsecutor invalide munere suo fungitur,
antequam litteras receperit earumque authenticitatem
et integritatem recognoverit, nisi praevia earundem
notitia ad eum fuerit auctoritate rescribentis trans-
missa.
in
The executor of a rescript acts invalidly if he
acts before he has received the letters and de-
termined their authenticity and integrity, unless
he has been previously informed of their contents
by authority of the grantor.
Hence, as soon as the executor has received the docu-
ment, he must look at the signature and the seal, to
ascertain whence it came; for this is to establish au-
thenticity. Then he may peruse the contents, assuring
himself that nothing substantial is wanting and that
all the necessary papers are included. After that he will
determine the subject-matter or nature of the case. Then
he must carefully ponder over the clausulae, which con-
tain certain conditions for the executor as well as the
petitioner. Before he has done all this the executor
cannot validly proceed to carry out the rescript, unless he
".
►ogle
( * -» -. -J,-. Original fro m
UNIVERSITY OF WISCONSIN
142 GENERAL RULES
has been informed by telegraph, telephone or other means
as to the contents of the document. This information
must come from the grantor or an official connected with
the grantor. Xext he must ascertain from the clausulae
whether he is an exsecutor necessarius or voluntarius.
Thus, e. g., " si const it erit " or " constito tibi," " conscicn-
tiam tuam oneramus,'* u etc., are indicative of an exsecu-
tor voluntarius (or at least mixtus), whilst the absence of
such clauses permits one to presume that he is merely an
exsecutor necessarius, i. e., one who simply delivers the
rescript. However, even if he is an exsecutor necessarius
and cannot refuse the granting of the favor, circum-
stances may be such as to cause him to withhold the
execution. Three cases only are enumerated.
Can. 54
§ i. Si in rescripto comrnittatur merum exsecutionis
ministerium, exsecutio rescripti denegari non potest,
nisi aut manifeste pateat rescriptum vitio subreptionis
aut obreptionis nullum esse, aut in rescripto appo-
nantur conditiones quas exsecutori constct non esse
impletas, aut qui rescriptum impetravit adeo, iudicio
exsecutoris, videatur indignus ut aliorum offensioni
futura sit gratiae concessio ; quod ultimum si accidat,
exsecutor, intermissa exsecutione, statim ea de re cer-
tiorern faciat rescribentem.
§ 2. Quod si in rescripto concessio gratiae exsecutori
comrnittatur, ipsius est pro suo prudenti arbitrio et
conscientia gratiam concedere vel denegare.
sa This clausula fs not, properly follow the dictates of legal justice,
speaking, conditional, but intended but it also signifies that tb executor
to render the executor cautious. It cannot subdcletrate his office. Cffr.
means that tfae business is commit- Barbosa. Trartatui Varii, de clausu-
ted to the prudence of an honest list cl. 24, p. 274.
man with common sense, who must
jk
Original from
UNIVERSITY OF WISCONSIN
■
CANON 54 143
§ i. If a rescript commissions the executor
merely to carry out its terms, he is not allowed to
refuse to do so, unless it is evident that the re-
script is void in consequence of a subreptio or
obreptio, or the executor is satisfied that the con-
ditions appended to the rescript are not fulfilled,
or if the petitioner, in the judgment of the ex-
ecutor, is so unworthy of the favor granted
that the grant would prove offensive to others; in
the last-mentioned case the executor should not
proceed to execute his commission but immedi-
ately notify the grantor.
§ 2. If the granting of a favor is committed
to the executor, the latter may either grant or
deny it, according to his prudent judgment and
conscience.
As to the first point : The executor is supposed to
know the circumstances of the petitioner, e. g., in matri-
monial dispensations, and as a rule it is not difficult for
him to judge whether or not the truth has been concealed.
Obreptio and subreptio are mentioned, hence the exec-
utor is bound to investigate the existence or absence of the
reasons alleged.
As to the second point, it will be noticed that the
conditions must be fulfilled at the time of the execution,
but nothing is said about the future. Hence all the
conditions for a private oratory, for instance, must be
previously complied with, whereas, in a rescript for a
mixed marriage the future fulfillment of the conditions
need not concern the executor.
►ogle
£ * ^ ^ ,l,» Original from
UNIVERSITY OF WISCONSIN
■
144 GENERAL RULES
As to the third point, it may be noted that the position
of the executor may become very ticklish because of
the vagueness of the term indignus (unworthy). If we
speak of one being indignus in an election, we mean
that he lacks the required qualities. Perhaps a more
reliable standard is furnished by a comparison with
the refusal of administering the sacraments to " indigne
petentibus." An " indignus " in the sense of our canon
therefore is probably a public sinner.24 The grant may
be offensive to the faithful or to others, to whom it might
give an occasion to belittle the Church. If that be the
case, the executor is bound to postpone the execution and
inform the grantor.
If the executor is a voluntarius, i. e., may either grant
or refuse the favor according to his good judgment and
conscience, all depends upon him and he must bear
the consequences of his action. There is one notable
consequence attending such a form of commission, viz.,
that the rescript expires with the death of the executor.20
Can. 55
Exsecutor procederc debet ad mandati normarn, et
nisi conditiones essentiales in litteris appositas im-
pleverit ac substantialem procedendi formam serva-
verit, irrita est exsecutio.
The executor is obliged to proceed as if he had
received a mandate, and unless he shall have ful-
filled the essential conditions laid down in the
rescript, and followed in substance the required
24 A notorious Freemason, or a of imdigni.
persecutor of the Church and hlcr- Sfi " Arbitrium cxpirat mortc illiuB,
trchy, a conevbmurius publtcxs, all qui illntl habet " ; cfr. Barbosa, claus.
these would fall under the category n, p. 364.
§le
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 56 145
form of proceeding, the execution is invalid.
A man&atum, broadly speaking, is a rescript by which
a superior commands or prescribes something. There
are two kinds of mandatum which may here come into
question : the mandatum apostolicum, used in the pro-
vision or conferring of benefices, and the mandatum pro-
curatorium, by which one is made procurator or empow-
ered to act as proxy.2* The latter is here to be consid-
ered, and what is said in general about a mandate of
proxy applies to the present case, and therefore the ex-
ecutor must observe the form of the mandate. This he
does if he grants neither more nor less than is expressed
in the rescript, e. g., if the rescript permits a seculariza-
tion ad tempus, the executor cannot grant it in perpetuum.
He must furthermore observe the limits of the mandate as
SI
to persons, time, and conditions." Finally, in rescripts
of justice, the executor must follow the summary pro-
cedure explained in Book IV.
Can. 56
Exsccutio rescriptorum quae forum externum respi-
ciunt, scripto facienda est.
c
-1
The execution of rescripts which affect the ex-
ternal forum must be made in writing.
Can. 57
§ 1. Rescriptorum exsecutor potest alium pro suo
prudenti arbitrio sibi substituere, nisi substitutio pvo-
hibita fuerit, aut substituti persona praefinita.
ZS Keifienstuel, I. 3, 21; I, 38, tin. "quia paria sunt, non habere man-
72 fl ; de procuratonbui. datum vel non serrate formam roan-
27 Barbosa, /. c, Axiom* 144: dati.'*
* y,\/iL» Original from
oogle
UNIVERSITY OF WI5CON5I
~
N
■
146 GENERAL RULES
§ 2. Si tamen fuerit electa industria pcrsonae, exsc-
cutori non licet alteri committere, nisi actus praepara-
tonos.
§ 1. The executor of a rescript may, if he
prudently judges fit, appoint another in his place,
unless such substitution is forbidden or some
other person has been designated.
§ 2. If, however, an executor has been chosen
by reason of his personal qualities, he may not
delegate his office to another, but only the pre-
liminary acts.
Can. 58
Rescripta quaelibet exsecutioni mandari possum
etiam ab exsecutoris successore in dignitate vel officio,
nisi fuerit electa industria personae.
A rescript may be executed by the successor in
dignity or office of the original executor, unless
the latter had been appointed on account of his
personal qualities.
Since the code mentions no special reason for not at-
tending personally to the affair, it is left to the executor
to delegate another. Thus a Bishop may give general
permission to his Vicar-general or Chancellor to attend
to such matters unless such action is either expressly or
implicitly forbidden ; for it may be that a law does not
allow the Ordinary to give such a general permission,
which cases will be noted in the course of this com-
mentary. Besides, if the executor is chosen for his per-
sonal qualities, e. g., his knowledge or acquaintance with
G] Original from
UOglC UNIVERSITY 0FWI5C0NSIN
CANON 59 147
the case and the persons involved, or for peculiar merit,
substitution is not permissible. The same holds good con-
cerning the successor in dignity or office. Dignity hete
means jurisdiction and precedence, not merely dignitaries,
for such do not succeed one other. Whether the term
office is to be taken in the general sense of an ecclesiastical
office, or in the stricter sense of oflicium, which implies
neither jurisdiction nor precedence but only administra-
tion, is not stated, but the text seems to indicate the latter.
Hence, e. g., the custodian of a cathedral church or the
secretary or chancellor of a Bishop, are officials to the
practical intent of this canon.28
".
Can. 59
§ 1. Exsecutori fas est, si quoquo modo in rescrip-
torurn exsecutione erraverit, iterum eadem exsecutioni
mandarc.
§ 2. Quod attinet ad taxas pro rescriptorum exsecu-
tione, servetur praescriptum can. 1507, § 1.
§ 1. If an executor has made a mistake of
any kind in the execution of a rescript, he has the
right to repeat the execution.
§ 2. As regards the fees for the execution of
a rescript, canon 1507, § 1 must be observed.
The fees for the execution of rescripts are governed by
well-defined rules for each ecclesiastical province, which
rules are prescribed by the Holy See, to whom also is
reserved the approbation of taxation laws to be followed
in a province (can. 1507).
28 Cfr. Barbosa, Tractatus Vorii, ter is looked upon as 8 p ersonatus
Appellatio 126, p. 269; the cuatos (cf, Book II, on cathedral chapters).
of a cathedral or collegiate chap-
jle
/".,., ,1,., Original fro m
UNIVERSITY OF WISCONSIN
-
■
pi
148 GENERAL RULES
RECALL AND CESSATION OF RESCRIPTS
The effect of a rescript — except it be a mere faculty
— generally lasts forever or at least as long as the
reason for which the petition was made. But it may be
revoked. Hence
Can. 60
§ 1. Rescript um, per peculiarem Super ioris actum
revocatum, perdurat usque dum revocatio ei, qui illud
obtinuit, significetur.
§ 2. Per legem contrariam nulla rescripta revocantur,
nisi aliud in ipsa lege caveator, aut lex lata sit a Su-
periore ipsius rescribentis.
§ i. If a rescript is revoked by a special act
of a superior, it does not lose its validity until
the revocation has been duly intimated to the
petitioner.
§ 2. No rescript is recalled by a contrary law,
unless the law expressly so provides, or unless
it is given by the superior of the one who granted
the rescript
Can. 61
Per Apostolicae Sedis aut dioecesis vacationem
nullum eiusdem Scdis Apostolicae aut Ordinarii re-
scriptum perimitur, nisi aliud ex additis clausulis ap-
pareat, aut rescriptum contineat potestatem alicui
factam concedendi gratiam peculiaribus personis in
eodem expressis, ct res adhuc Integra sit
A rescript does not lose its force by reason of
the vacancy of the Holy See or of a diocese, unless
I Original from
■OOgie UNIVERSITY OF WISCONSIN
CANON 61 149
the contrary appears from the respective
clausulae, or unless the rescript conveys the power
of granting a favor to particular persons ex-
pressly named therein, and the matter has not yet
been made the subject of litigation.
A rescript might be repealed by the issuing of another
rescript, but unless the second rescript mentions the for-
mer as abolished, the former rescript remains in force.
Here the act of repeal is not express and explicit and
must be formally intimated to the petitioner or owner
of the rescript. However, a sort of tacit recall is ad-
mitted, vis., by a contrary law, which must expressly men-
tion the rescripts recalled or must have been issued bjr
the superior of the one who issued the rescript. This
latter clause evidently refers to the Pope in regard to a
Bishop who may have granted a rescript, and means that
the Sovereign Pontiff may cancel a rescript issued by an
Ordinary. But here the rules of interpreting laws must
be applied. The canon properly speaks of expiring re-
scripts. It was formerly held that rescripts of justice
expired with the death or resignation of the grantor, re
adhi'.c Integra. But canon 61 makes no such distinction,
and hence a rescript does not become extinct by the death
of the pontiff or bishop who gave it. An exception is
made when there is a clause signifying the intention of
the grantor to concede the favor granted only during his
life-time or for a certain limited period. Clausulae of
that kind would apparently be the following: "usque ad
beneplacitxtm nostrum," " usque ad bene placi turn Sedis
Apostolicae" "donee revocavero." The first clausula
would extinguish a rescript 2S at the death of the grantor,
29 Cf. c s, 6°, I, 3; cf. can. 73; the opinion of Laurcntius, Inst.
jle
Y ,|,, " riginal from
UNIVERSITY OF WISCONSIN
ISO GENERAL RULES
but the second ("usque ad benep. S. Ap.") would not,
because the Apostolic See does not die;30 nor does the
last (" donee revocavero "), according to weighty authors,
extinguish the rescript, because, they say, a positive act
is required for the repeal of a rescript,31 an opinion
which seems to be supported by canon 60, § i .
The other condition under which a rescript elapses at
the death of the grantor consists in the direct faculty
given to the executor to grant a favor to specially named
persons. For in that case the executor acts as procurator,
— at least this seems to be the underlying principle, —
who has received a special mandate, which naturally ceases
with the death of the mandaiis, unless the business has
taken a juridical turn (res ad hue Integra) and the juridi-
cal stage has been reached, if citations or summons
have been legally issued or the parties have spontaneously
appeared before the judge, or in this case, before the ex-
ecutor.82
The last canon of this title, which certainly has been
dealt with liberally in our Code, says that if a rescript
contains a privilege or dispensation, the rules for privi-
leges and dispensations laid down in the following canons
must be observed.
a
rl
Can. 62
Si rescriptum contineat non simplicem gratiam, sed
privilegium vel dispensationem, serventur insuper
pracscripta canonum qui scquuntur.
If a rescript contains, not a simple favor, but a
luris Ecct.t n. 096, is destitute of 402; Retffenstuel, I, 3. n 263.
foundation. 81 Cf. can. 1725, which settles the
•o Cf. c. 5, 6°, I, 3. controversy about the moment when
n Cf. Barbcsa, /. c, claus. 43, p. a matter ceases to be integra.
s ,1,., Original from
UNIVERSITY OF WISCONSIN
>gle
CANON 62 151
privilege or dispensation, then besides [the rules
laid down in the preceding canons] the regula-
tions established in the following canons must be
observed.
-
>Ie
j ^ Original from
UNIVERSITY OF WISCONSIN
TITLE V
ON PRIVILEGES
A special class of laws is that dealing with privileges.
A privilege ( priiilegium, lex private) may be defined as
" a more or less permanent concession made by the legis-
lator against (or beyond) the law."1
A privilege is a law, and hence falls under the power
of the legislator only in so far as he can establish laws.
If a privilege contains a concession which the law
prohibits, it is a privilege against the law. If a privi-
lege grants a right beyond what the law has already
granted, it is said to go beyond the law (proeter jus), as
e. g.t the privilege of absolving from reserved cases.
Properly speaking only a privilege against the law is truly
a privilege,2 though faculties are justly enumerated among
the privileges beyond the law (can. 66, § i).
HISTORICAL NOTE
h
It is evident that the theory of privileges must have de-
veloped apace with the practice of the Roman See.
Though privileges were granted and revoked by the popes
before the great collections of ecclesiastic law were made,
the doctrinal exposition of privileges began with Gratian.8
In a famous dictum the Magister solves the objection
raised by the necessity of strictly observing the canons of
councils and the decrees of popes as follows : The
i Ci. tit. 33, bk. V, Decretal-, and 2 Rciffenstuel, i. e., n. 8.
the commentators thcreun, foi in- » Cf dictum ad c. 16, C. 1$, q. i;
stance, Engel, Rciffenstuel, and c. 30, C. 11, q. 1; c. 4, C 24, q. 1.
Suarcz, De Legibus.
* -x, \i-\i » Original from
oogle
UNIVERSITY OF WI5CON5I
-
CANON 63 153
Roman Church has the authority to establish laws, but
she is not bound by them, because she is the head and
support {caput et cardo) of all the churches, and all laws
have attached to them the implicit clause, "salvo jure
sanctae Rotnanae Ecclesiae." Hence if privileges are
granted which apparently are against the common law,
they do not clash with the right of the Church, because all
privileges are reserved to her. From this point of view it
followed, of course, that no privilege would be granted ex-
cept for the honor and utility of the Church, and that priv-
ileges were revocable. Gratian's teaching was an innova-
tion only in so far as this principle had not been laid down
in any law-book before him. But in substance it simply
embodied the practice which the Roman Court had fol-
lowed for about a century. As the papal power developed
under the protection of St. Peter," the theory of privi-
leges assumed a more detailed and definite form. This
was the case especially in the eleventh and twelfth cen-
turies.4 We must add that in course of time clerical
privileges and exemptions to a great extent lost their
original character of privileges and became, as it were,
part and parcel of the common law.
DIVISION OF PRIVILEGES
Manifold is the division of privileges. It will suffice
for our purpose to note the following :
a) A personal privilege is one granted to a person for
a reason inherent exclusively in that person, e. g., the
wearing of the cappa magna or purple skullcap, if given
not to the office but to the person. A real privilege is one
attached to a thing, place, office, or dignity; e. g., the
privilegiutn altaris or a privilege given to a sanctuary.
* Cf. Saeymuellcr in the T&b. Quartolrchrift, 1907, p. 93 fl.
G 1 Original from
OOglL UNIVERSITY 0FWI5C0NSIN
■
154 GENERAL RULES
A mixed privilege is one granted to a corporation or
society or confraternity as such.
b) A favorable privilege is one containing a mere
favor, without prejudice to a third person. An odious
privilege is one involving prejudice or detriment to an-
other, e. g., freedom from taxation or tithes.
c) Privileges are granted in various forms, either in
writing or by word of mouth, either motu proprxo or by
petition, either absolutely {per se) or ad instar. A privi-
lege granted in writing is always safer. A written docu-
ment is required where injury to another is involved, un-
less an orally granted privilege can be proved by wit-
nesses. Otherwise an oral privilege may be used per-
sonally as long as no legitimate authority or injured third
party demands proof (can. 79).
d) A privilege given absolutely or per se is one granted
without respect or reference to pre-existing privileges. A
privilege ad instar refers directly to a pre-existing pat-
tern. Thus, e. g., most of the privileges granted to re-
ligious and confraternities are ad instar.
ACQUISITION OF PRIVILEGES
A privilege being a law in favor of private persons,
proceeds from the same power as the law. Hence the
Sovereign Pontiff can grant privileges against the com-
mon ecclesiastical law, but not against the natural or
divine law. It matters little, per se, whether he concedes
these privileges in writing or orally (vivac vocis oraculo),
directly, i. e., absolutely, or indirectly, i. e.r ad instar, for
he has the power to choose the mode of granting privi-
leges. Hence the first canon of this title declares that
privileges may be obtained both by direct concession and
communication and through legitimate custom or prescrip-
jle
, to k -J,-. Original fro ni
UNIVERSITY OF WISCONSIN
—
a
N
■
CANON 63 155
tion, and that centennial or immemorial possession
creates a presumption in favor of a privilege.
Can. 63
§ z. Privilegia acquiri possunt non solum per direc-
tum concessionem competentis auctoritatis et per com-
municationem, sed ctiam per legitimam consuetudinem
aut praescriptionem.
§ 2. Possessio centenaria vel immemorabilis inducit
praesumptionem concessi privilcgii.
§ I. Privileges can be acquired not only by
direct concession on the part of legitimate au-
thority and by communication, but likewise by
legitimate custom or prescription.
§ 2. Centenary or immemorial possession of
a privilege is a presumption in favor of its genu-
ineness.
There is, then, a threefold way of acquiring ecclesiasti-
cal privileges: by direct concession on the part of a com-
petent authority (pope or bishop), by communication,
and by prescription.
The first is evident and needs no explanation.
Communication means partaking of a privilege either
by extension or by aggregation (per connectionem).
Thus if a confraternity is aggregated to an archcon frater-
nity, it shares the privileges of the latter. A privilege
may be acquired also by explicit application, the privi-
leges granted to some being expressly conceded to others
in the same manner, measure and form, yet with the
erTect that the latter grantees enjoy these privileges ab-
solutely and independently of the former. This is called
od by GoOgle
f ■ j , Original from
UNIVERSITY OF WISCONSIN
156 GENERAL RULES
a
Q
k'ommnnkatio plena et absoluta, or aeque principalis,
whilst the former is communicatio imperfecta et relativa
or accessor ia. A complete and absolute communication
of privileges formerly took place between all mendi-
cant orders. Excepted from communication are the so-
called u exorbitant " privileges and such as are styled
" incommunicable." *
The third method of acquiring a privilege is by custom
or prescription. This has been the general teaching of
canonists, based on a famous decretal of Innocent III.
In this decretal the words " contraria consuetude " oc-
cur,' and, since all canonists insisted on prescription, they
simply said: " privileqium potest acquiri praescriptione
seu consuetudine legitime praescripta." T This opinio
communis receives, as it were, official sanction in the
present canon.
The length of time required for prescription must be
measured according to canons 27 f.. quoted above; it is,
besides, determined more closely by § 2 of can. 63.
Possession here means, not only actual occupation but
the right of possessing a thing.8 Such possession lasting
for a century or time immemorial creates a presump-
tion that the privilege is real and authentic. This pre-
sumption, not being further described, is to be taken
as a simple praesttmptio juris, which must cede to truth if
conclusively disproved. Thus, e. g., if it be proved that
regulars who have held a parish for forty or more years,
never obtained a privilege to that effect, the Bishop can
claim the parish for the secular clergy.
I Only if a Pull contains the Btillarium Cong. Angl. O.S.B., 191',
words, *' eliam incommum'cabilia," pp. 5 ff.
ire ihese privileges Included; sec. 8 C. ij, Novit, X, II, 1 dc judi-
t. g.. ibe Const, of Urban VIII, dls.
" riantata," of July ia, 1633, in the ? Reiffenstuel, V, 33, n. 39.
8 " Detentio rei corporis et animi
et juris admin iculo."
v ,|,, Original from
UNIVERSITY OF WISCONSIN
>gle
CANON 64 157
The legislator now turns to the second mode of acquir-
ing a privilege, which is more subject to abuse.
Can. 64
Per communicationem privilegiorum, etiam in forma
acque principalis ca tantum privilegia impcrtita cen-
sentur, quae directe, perpetuo et sine speciali relatione
ad certum locum aut rem aut personam concessa
fuerant primo privilegiario, habita etiam ratione capa-
citatis subiecti, cui fit communicatio.
In the communication of privileges, even that
called aeque principalis, only those privileges are
included which were imparted to the original
grantee directly, forever, and without special
relation to a certain place, thing or person, and
with due consideration of the capability of the
receiver.
Evidently the Code wishes to clear up the nature of
communicatio, especially as espoused by religious orders;
yet, in the main, it adopts the ancient solid doctrine.
Privileges which were not directly granted cannot be
communicated. This provision is perhaps new, but it is
wholesome, for otherwise privileges might be claimed
over which the legislator has no control, and unduly
multiplied. Religious orders under this canon cannot
by communication claim a privilege which was already
granted to another order by communication. However,
this law is not retroactive, and hence the orders may
retain what they possess, except where the Code rules
differently.
A privilege, to be communicable, must have been
§le
/• * ^ ^ j„ Original fro rn
UNIVERSITY OF WISCONSIN
158 GENERAL RULES
a
granted forever. Therefore spiritual favors granted ad
quinquennium, e. g., are not communicable.8
Lastly, privileges granted to particular persons, places,
or things cannot be transferred to others. For instance,
the privilege of wearing a purple skullcap, given on ac-
count of personal merit and distinction, the privilege given
to a special sanctuary or to a particular altar or sacred
object, are incommunicable.
Note, too, that the persons or subjects to whom a com-
munication of privilege is made, are capable thereof only
in so far as their condition and position render them apt.
Thus nuns (monklcs) are not capable of enjoying all
the privileges granted to monks or regulars, e. g.f that
of preaching, absolving, etc., although they may be capa-
ble of others.
The following canon determines the extent of a com-
municatio accessoria (ad instar) ;
Can. 65
Cum privilegia acquiruntur per communicationem in
forma accessoria, augentur, imrninuuntur vel arnit-
tuntur ipso facto, si forte augeantur, imminuantur vel
cessent in principali privilegiario ; secus si acquirantur
per communicationem in forma aeque principali.
Privileges acquired by communication in forma
accessoria, are increased, diminished or lost to
the second grantee in proportion to their increase,
decrease, or loss in the original grantee; which
rule is not, however, to be applied to the communi-
catio absolute or aeque principalis.
9 Cf. Ant cuius de Spiritu S-, Ord. Carm., Directorium Rtgmlor., tract. I,
disp. i, lectio 3, a. 42.
jle
k ,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 66 159
Hence, if an archconf raternity loses a part or all of its
indulgences, they are also lost to the aggregated con-
fraternities. This rule does not hold good in the com-
munication of religious orders, wherefore, if one re-
ligious community were suppressed, another, which had
received a privilege from it by communication, might con-
tinue to enjoy the same.
FACULTIES
A special canon treats of faculties, which term here
means certain rights denied by common law but granted
by special privilege. It follows from the nature of a
faculty that it can be given only by one who can modify
the common law. This one is primarily the Pope, though
bishops also may grant faculties concerning matters sub-
ject to their legislation.10 Since the sixteenth century
special faculties were granted chiefly to the German bish-
ops, and classified in certain formularies, pro foro extertio
and pro foro interno, quinguennales and triennales, and
for a determined number of cases.11 Their object is as
wide as ecclesiastical discipline itself, and comprises es-
pecially dispensations, absolutions, and licenses for per-
forming acts otherwise prohibited by law, e. g.f reading
forbidden books.
The Code says with regard to these faculties:
Can. 66
-
§ i. Facilitates habituales quae conceduntur vel in
10 For instance, hearing confea- rails, 1917. p. 1081 fl. Theoe fac-
lion*, preaching, etc. ulties, His Excellency the Apoi-
11 Cf. Patzer. Comment in tolic Delegate. Most Rev. J. Bon-
Facvlt, apost,, 1897, ed. 4. — For the zano, had the kindness to inform the
formularies containing the faculties author, are extraordinary, and there-
granted to the bishops of the U. S. fore liable to modification or repeal.
see Sabetti-Barrett, Tktol. Mo-
■
9
jle
Y ,|,, Original from
UNIVERSITY OF WISCONSIN
i6o GENERAL RULES
perpetuum vcl ad praefinitum tempus aut ccrtum
numerum casuum, accensentur privilcgiis practer ius.
§ 2. Nisi in earum concessione electa fuerit industria
personac aut aliud cxprcsse cautum sit, facilitates
habituales, Episcopo aliisve dc quibus in can. 198, § 1
ab Apostolica Sede concessae, non evanescunt, rcso-
luto iure Ordinarii cui concessae sunt, etiamsi ipse eas
exsequi coeperit, sed transeunt ad Ordinarios qui ipsi
in regimine succedunt; item concessae Episcopo com-
petunt quoque Vicario Generali,
§ 3. Concessa facultas secumfert alias quoque potes-
tates quae ad illius usum sunt necessariae; quare in
facultate dispensandi includitur etiam potestas ab-
solvendi a poenis ecclesiasticis, si quae forte obstent,
scd ad effectum dumtaxat dispcnsationis consequendae.
§ i. Habitual faculties, granted for ever, or
for a limited time, or for a definite number of
cases, are reckoned among privileges beyond the
law.
§ 2. Unless they were conceded for personal
reasons, or unless the law provides otherwise,
habitual faculties do not expire with the authority
of the Ordinary (or others; see can. 198, § 1) to
whom they have been granted by the Apostolic
See, even though he may have begun to execute
them, but pass over to those who succeed him in
office; faculties granted to the Bishop are in-
tended also for the Vicar General.
§ 3. A faculty implies all the powers neces-
sary for its exercise; hence the faculty of dis-
pensing includes the faculty of absolving from
jte
£ " ^ , ,l,» Original fro ni
UNIVERSITY OF WISCONSIN
CANON 66 161
censures, if necessary, but only for the purpose
of receiving the dispensation.
As to § I note: Habitual faculties are those which are
commonly granted to bishops either for a certain time or
for a limited number of cases, and are, as it were, con-
comitants of the episcopal office. As they are num-
bered among privileges, the rules of interpreting privi-
leges must be applied to them, ceteris paribus.
As to § 2 : These habitual faculties do not expire with
the cessation of the Ordinary's term of office, but continue
in his successors, and the faculties granted to the Bishop
are also given to the Vicar General, unless the Bishop (or
others to whom the faculties were given) was selected for
this honor on account of personal qualities. The name
" Ordinary " is applied to diocesan bishops, each for his
territory, to Abbots Nullius, and to the Vicars-general of
both, to Apostolic Vicars and Prefects, and to the Su-
periors of exempt religious.12 The successor of the Or-
dinary to whom a faculty was granted, may complete the
execution thereof which the predecessor had begun, e. g.,
by calling witnesses, issuing summonses, etc.
As to § 3 : A faculty, if given, grants the use of all
the means necessary for its application, and hence the
faculty of dispensing includes the power of absolving
from censures, when necessary ; but only for the
purpose of rendering the subject capable of receiving
the dispensation. Therefore, e. g., an excommunication
or suspension or personal interdict is, de facto, suspended
only here and now, whilst conditions added to the cen-
sures for the case of real absolution remain.
izCfr. can. 198 and the declara- " locorum " {■ added, the superiors
tion of the Holy Office of Feb. to, of exempt orders are not included.
1888; when the term "loci" or
►ogle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
N
■
162 GENERAL RULES
interpretation of privileges
Can. 67
Privilegium ex ipsius tenore aestimandum est, nee
licet illud extendere aut restringere.
A privilege must be interpreted according to
its wording or purport, and must be neither ex-
tended nor restricted.
Can. 68
In dubio privilegia interpretanda sunt ad normam
can. 50; sed ea semper adhibenda interpretation, ut privi-
legio aucti aliquam ex indulgentia concedentis videan-
tur gratiam consecuti.
In case of doubt privileges must be interpreted
in accordance with can. 50, but in such a way that
those who have received the privilege always re-
tain some favor from the good will of the grantor.
The interpretation of privileges follows the general
rules of interpretation, as stated above, and especially
that of rescripts. The principal rule is that the wording
or purport (tenor) of the text must be duly consulted.
Neither an extensive nor a restrictive interpretation of
privileges is admissible. Where a doubt exists, the rule
given in can. 50 must be applied, but in such a way that
some privilege or favor remains.
Can. 69
■
Nemo cogitur uti privilegio in sui dumtaxat f avorem
concesso, nisi alio ex capite exsurgat obligatio.
<
No one is obliged to make use of a privilege
oogle
Original fro m
UNIVERSITY OF WISCONSIN
—
a
N
CANON 70 163
granted to him solely for his own benefit, unless
an obligation to that effect should arise from some
other source.
Can. 70
Privilegium, nisi aliud constet, censendum est per-
petuum.
A privilege is perpetual, unless the contrary is
evident
A doubt may arise as to whether a privilege is purely
personal, or real, or mixed. Such doubts can be solved
by examining the subject-matter and the wording of the
privilege. The purpose or scope of a privilege is, as a
rule, obvious. If it is not clear whether the successor of a
personally privileged Ordinary, e. g., the successor of an
abbot, has the use of a certain privilege, the address of the
document should be examined. If the name of the
grantee appears first, and his dignity second, the privilege
must be regarded as merely personal. Where the dignity
is mentioned first, the privilege may be taken as real and
is consequently transferable to the successor in the same
dignity or office, unless the wording of the text excludes
this interpretation. "
The Code adds, " nisi alio ex capite exsurgat obligatio,"
thereby no doubt referring to the so-called personal privi-
leges of the clergy which cannot be renounced by the indi-
vidual. It may also be that the fulfillment of a precept
would urge, for instance, hearing Mass in a private
oratory,14 or absolving or dispensing, etc. Unless the
contrary is clearly expressed, a privilege lasts for ever.
a
liCfr. Eneel, V. 33. n. 4-
14 Laurentius, Inst. Juris Bed., 1903, p. 247.
"■
oogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
164 GENERAL RULES
LOSS OF PRIVILEGES
Although its nature would seem to spell perpetuity, a
privilege may be lost, either by law, or lapse, or renuncia-
tion, or by one's own fault.
Can. 71
Per legem generalem revocantur privilegia in hoc
Codicc contenta; ad cetera quod attinet, aervetur
praescriptum can. 60.
A general law repeals the privileges contained
in this Code; otherwise can. 60 concerning the
recall of rescripts must be applied.
Oi
D
Formerly a certain class of privileges was called
" clausa in corpore juris " and sometimes * priinlegia in
1/1
corpore juris clauso," which signified those privileges con-
tained in the Corpus Juris." In like manner the privi-
leges contained in the New Code, e. g., clerical, religious,
and real, form a special class, and as such may be abol-
ished by a general law issued by the supreme lawgiver.
■
Can. 72
§ 1. Privilegia cessant per renuntiationem a compe-
tente Superiore acceptatam.
§2. Privilegio in sui tantum favorem constituto
quaevis persona privata renuntiare potest.
§ 3. Conccsso alicui communitati, dignitati, locove
renuntiare privatis personis non licet.
§ 4. Nee ipsi communitati seu coetui integrum est
renuntiare privilegio sibi dato per rnodum legis, vel si
15 The authors, however, did not only the three authentic collection*,
agree as to -what constituted the others including the Decrctum and
" Corpus Juris," some admitting the Ex trava games.
>Ie
£ * -» ^ ,l,» Original fro m
UNIVERSITY OF WISCONSIN
CANON 74 165
renuntiatio cedat in ecclesiae aliorumve praeiudicium.
§ i. Privileges cease by renunciation if the
renunciation is accepted by the competent su-
perior.
§ 2. A merely personal privilege may be given
up by any private person.
§ 3. A privilege granted to a community, dig-
nity, or place cannot be renounced by private per-
sons.
§ 4. Nor is the community or congregation
(society) itself free to renounce a privilege
granted by way of law, or if its renunciation
should cause a prejudice to the Church or to
others.
For a commentary on this point see p. 167, infra.
Can. 73
Resoluto iurc concedentis, privilegia non exstin-
guuntur, nisi data fuerint cum clausula: ad beneplaci-
tum nostrum, vel alia aequipollenti.
Privileges are not extinguished even if the
grantor goes out of office, unless they contain the
clause : ad bcneplaciium nostrum, or some other
clause of like import
A clause of like import would be, e. g.f " durante ponti-
ficate."
Can. 74
a
Privilegium personale personam sequitur ct cum
ipsa exstinguitur.
.'Ie
(**• ^ v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
N
■
166 GENERAL RULES
A personal privilege follows the person to
whom it has been granted and expires with that
person.
Here a note may be allowed as to the first clause.
While it is true that the personal privilege cleaves, as the
canonists say, to the bones of the person, the use of such
a privilege may. be limited or perhaps subject to the con-
sent of another. Thus, e. g., the wearing of the Cappa
Magna is granted to some abbots not in virtue of
their office, but to the person, and hence is restricted to
their own churches.
Can. 75
Privilegia realia cessant per absolutum rei vel loci
interitum; privilegia vero localia, si locus intra quin-
quaginta annos restituatur, reviviscunt.
Real privileges cease upon the complete de-
struction of the thing or place, whilst local
privileges revive if the place is restored within
fifty years.
This enactment is of great importance for churches and
monasteries, which, though the new proprietors or occu-
pants have no relation whatever with the former, can
enjoy their privileges without an act of renewal, if only
a record be kept of the time of ruin and restoration. Of
course it is understood that the restored places serve the
same purpose as before, — the purpose for which, or in
view of which, the privilege was given.
Renunciation of a privilege (as dealt with in canon 72,
su[>ra) is the voluntary giving up of a privilege ac-
G I Originalfrom
008IL UNIVERSITY QFWI5C0NSIN
CANON 75 167
j
quired.10 This is permissible because, as a rule, everyone
is at liberty to relinquish his own rights.17 However, to
be effective, renunciation must be accepted by competent
authority. Hence
§ 1 says that privileges cease by renunciation if the lat-
ter is accepted by the competent authority, which is none
other than the grantor or his legitimate successors.
According to § 2, a merely personal privilege may be
surrendered by any private person. The reason is be-
cause such privileges are supposed to affect the holder ex-
clusively.
§ 3 declares that a privilege granted to a community,
dignity or place cannot be renounced by private persons.
It follows that the superior of a community, or a religious,
or a clergyman cannot renounce such a privilege, e. g., of
exemption or the privilegium canonis and fori.1*
§ 4 provides that not even a community or congrega-
tion is free to renounce a privilege if it has been granted
by way of law, or if its renunciation would cause a preju-
dice to the Church or to others. A privilege granted by
way of law is one contained in the Code, e. g.t clerical
exemption, immunity. Such a privilege cannot be re-
nounced, even if the community by common consent, or
an assembly by general assent or a majority of votes,
were ready to give it up. It is also forbidden to renounce
a privilege, even though not contained in the Code, if
Q
18 " Resoluto juris concedentis " isCfr. c. la, X, II, a; c. 36, X,
{rcscribentis. ferentis legem) is an V, 39; c. 5, X, I, 43: "Cum etsi
expression often occurring in the sponte volueris. de jure tamen ne-
Code, and it of general purport, quiver!*, sine lieentia Rom. Pnnti-
including every kind of cessation of ficis reruinciare privileges vel in-
offii c 1 y death, resignation, trans* dulgentus libcrtatis, quae mona-
fer. exchange, suspension, or dene- sterium illud indicant ad jus et
sition. proprietatem Rom. Ecclesiae per-
17 C. 6, X, V, 33. tinere."
<
jle
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
-'
■
pi
168 GENERAL RULES
giving it up would result in detriment to the Church or
others, e. g., the faculty of binating or absolving from
reserved cases. On the other hand, a community or
chapter may give up such privileges as have become more
or less useless or of little importance.19 A sort of tacit
renunciation seems to be what canon 76 calls non-usus
or contrary usage.
Can. 76
Per non usum vel per usum contrarium privilegia
aliis haud onerosa non cessant; quae vero in aliorum
gravamen cedunt, amittuntur, si accedat legitima
praescriptio vel tacita rcnuntiatio.
By non-use or contrary use a privilege which
is not injurious to others does not cease; but a
privilege that is burdensome to others loses its
force by legitimate prescription or tacit renun-
ciation.
It may be useful to recall the distinction between an on-
erous and a non-onerous privilege. The former causes a
burden or damage to others, e. g., collecting tithes or
alms, whilst the privilege of eating flesh-meat on certain
days cannot be called injurious to others (except perhaps
to the cook or the treasury).
There is also a difference between prescription and
tacit renunciation. Prescription means a certain space
of time, say forty years, during which (the privilege has
not been made use of, although there was occasion for
using it. Tacit renunciation means that one has know-
ingly and willingly performed an act contrary to the privi-
i» Cfr. c 8, Xf I, 2 de const.
oogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 77 169
a
lege, either negatively by not using the privilege when one
should have used it, or positively, by doing the contrary
to that which the privilege entitled one to.20 The canon
says that only onerous privileges, namely, such as follow
the jus patrouatus or right of presentation, cease by non-
use or contrary use.21
Can. 77
Cessat quoque privilegiura, si temporis progressu
rcrum adiuncta sic, iudicio Superioris, immutentur ut
noxium evaserit, aut eius usus illicitus fiat; item elapso
tempore vel expleto numero casuum pro quibus pri-
vilcgium fuit concessum, firmo praescripto can. 207,
§ 2.
A privilege also ceases if in course of time con-
ditions change to such a degree that, in the judg-
ment of the superior, the privilege becomes harm-
ful or its use illicit; or if the time for which the
privilege has been granted expires, or the number
of cases for which it was given is full; without
detriment, however, to canon 207, § 2.
This canon states what is self-evident "under regula
juris 61 in 6°: " quod ob gratiam alicuius conceditur, non
est in cius dispendtum retorquendum." In can. 207, § 2,
the forum internum is excepted from the rule here laid
down.
■"■
Can. 78
Qui abutitur potestate sibx ex privilegio permissa.
ao Cf. Rciffcnatucl, V, 33, nn. pore vobis dctrahcre voluistis." The
«oi ff. length of time i» not expressed, but
si Ci. c. 6, X, V. 33- " De forty years may safely be assumed,
privilegio laincn indulto tanto tern-
jle
, ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
■
170 GENERAL RULES
privilegio ipso privari mere tur ; et Ordinarius Sanctam
Sedem moncrc nc omittat, si quis privilegio ab eadem
concesso gravitcr abutatur.
Whoever abuses the power granted to him by
a privilege, deserves to be deprived of the privi-
lege itself; and the Ordinary shall not fail to
notify the Apostolic See if anyone grievously
abuses a privilege granted to him by the same.
The wording of this canon leaves no 4oubt that abuse
does not, eo ipso, annul a privilege, but only after a sen-
tence issued by the Apostolic See.22 By the name of " Or-
dinary " is meant not only the diocesan Ordinary and his
Vicar General, but the superior of exempt religious.
On the other hand, it is also true that certain crimes are
stated and singled out in the law itself as attended by the
loss of certain privileges, e. g., if one commits a crime in a
church, presuming on immunity, or fails to wear the cleri-
cal dress, of which more loco suo.
The last canon on privileges treats of privileges granted
vivae vocis oraculo, i. e., by word of mouth.
Can. 79
Quamvis privilegia, orctenus a Sancta Sede obtcnta,
ipsi petenti in foro conscientiae suffragentur, nemo
tamen potest cuiusvis privilegii usum adversus quem-
quam in foro externo vindicare, nisi privilegium ipsum
sibi concessum esse legitime evincat.
Although privileges orally granted by the Holy
See, may be used by the grantee in the internal
22 Of. c. 7, Dist. 74 (Greg. M.) ; touch upon time or place or persons
c. 24, X, V, 33; the abuse may exceeding the limits thereof.
oogle
f^" ^ -. -%\*% Original from
UNIVERSITY OF WISCONSIN
—
a
N
CANON 79 171
court of conscience, no one should claim their
use against another in foro externo, unless he
can prove that the privilege was legitimately
obtained.
For example, I know of a religious who received
from Pius X, of happy memory, the privilege of reciting
the Breviary, when traveling, according to the rubrics
used at S. Anselmo. Tin's privilege was given orally, and
consequently touches the conscience rather than the
forum externum. A privilege for the forum externum
(e. g.t one granted to an order against the jurisdiction of
the Ordinary) requires proof. Hither belong the Con-
stitution "Romanus Pontifex," of Gregory XV, of July
2, 1622, and that of Urban VIII, " Alias," of December
20, 1631, which abrogated all vivae vocis oracula both
in foro interno and externo, except those obtained by the
petitions of sovereigns and cardinals. The new Code
admits the existence and use of orally given privileges, as
long as conscience alone is concerned; but in justiciable
cases such a privilege cannot be alleged, unless proven by
witnesses. What witnesses are required? The Code
does not specify, but we believe that the testimony of the
cardinal-protector of a religious order, or any other
cardinal, would be sufficient proof of the privilege hav-
ing been granted by the Holy See.23 (Can. 239, § 1,
[ 17)
In order to complete the subject of privileges, we may
be permitted to add a few words on a topic which the
Code does not explicitly treat, namely, the confirmation or
ratification of privileges. A privilege may be ratified in
forma communi or in forma specifica. Confirmatio in
28 Cfr. Reiffenstuel. \\ 33. nn. 149 S-
>Ie
J ^ Original from
UNIVERSITY OF WISCONSIN
■
172 GENERAL RULES
forma communi leaves the value and valor of a privilege
in statu quo, without determining whether the privilege
is valid or invalid, and hence adds no juridical force
either to the first or second grant. Confirmatio in forma
specified is given after mature consideration of the privi-
lege in case, and is executed cither by verbal insertion of
the former privilege or by using the clausulae : " ac si
de verbo ad verbum inserta fuissent" or "ex certa
scientia." In this latter case the confirmation gives jurid-
ical value to the privilege and is tantamount to a new
valid concession ; and the new grantee enjoys the privi-
lege, even if the former should lose it.
Note, also, that privileges are sometimes granted es-
pecially by way of communication, or ratified with the
clausula " dutnmodo " or " quatenus sunt in usu." This
means that the grantor does not wish to ratify or grant
anew by corroboration a privilege which has been lost by
non-use or contrary usage, or for another reason.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
TITLE VI
ON DISPENSATIONS
It is natural that a society spread over the whole globe
and comprising members of the most diverse types living
in different climes and under various conditions cannot
apply the law with equal rigor at all times and in all cir-
cumstances. Even in the first four centuries of her exist-
ence the Church was compelled to mitigate the strictness
of her penitential discipline. This is briefly and appro-
priately expressed by Abbo of Fleury (died 1004) :
1/1
" We must take into consideration the situation of coun-
tries, the character of the times, the frailty of men, and
other reasons which of necessity change the laws of dif-
ferent provinces. The same is true concerning papal de-
cress, which are of such authority that many judges
expect the verdict of the Roman Pontiff. In these
things, therefore, utility and equity (utilitas ct honestas)
must prevail, but not the enticing enjoyment of desires."1
The same idea recurs in the prologue to the Decretum
of Yvo of Chartres (died 1115). He, too, reduces the
reasons for granting dispensations to two — utility and
necessity, and compares the Church to a crew who throw
merchandise over hoard in order to save the ship.2 Gra-
tian did not go further, for all his texts are taken from
Yvo.5
1 Collectio CunoHum, c. VIII 2 Prolcij. in Decretum (Migne,
(Mignc, ij9. 48J>. which is un- 161, 47 ff.).
touched by Pseud o- laid orlan influ- a Cfr. c. 56, Dist 50; c. 41, C.
ence». 1, q. 1; c. 16, G. i. q. 7
173
►ogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
i74 GENERAL RULES
That with the outward growth of the papacy the power
of papal dispensation also increased, goes without saying.
Hence it cannot surprise us that Innocent III (1196-
1216) said that " the fullness of power confers the right
of dispensation." * Some bishops and provincial synods
also exercised the right of dispensation, although in a
limited way. Before Gratian's time, this power touched
an accomplished fact rather than something to be done in
future, although even this latter species of dispensation
{super faciendum) was not entirely unknown. Dispen-
sation came to comprise cases of simony, celibacy (espe-
cially the ftlii presbyterorum), irregularities, vows, and
above all matrimonial cases.* The Council of Trent en-
acted into law what Abbo and Yvo had taught, — that a
dispensation should be granted only for urgent and just
reasons, for the greater utility of the faithful, and after
previous deliberation and cognizance of the case.6 We
shall now see what the new Code has to say on the sub-
ject
Can. 80
Dispensatio, scu legis in casu speciali relaxatio, con-
cedi potest a conditore legis, ab eius succcssore vel
Superiore, nee non ab illo cui iidern facultatem dis-
pensandi concesserint.
p
A dispensation, L e., a relaxation of the law in
a particular case, may be granted by the lawgiver,
his successor or supe'rior, and by those to whom
the faculty of dispensing has been delegated.
There is a distinction between epikeia, so-called, or
4 Cf. c. 4, X, III, 8. reeht im Kxrchcnrecht , 1901, Vol. I
B Cf. Sliegler, Dispensation, Dis- {only one).
peHsotionswison und Dispensations- 9 Trid., Seas. 25, c. iS de ref.
\\e
,|^ Original from
UNIVERSITY OF WISCONSIN
CANON 81 175
a
benign interpretation, which is related to equity, and a
dispensation; for the latter is an act of jurisdiction flow-
ing from the legislative and judiciary power, whilst the
former is nothing more than either an interpretation or
an excuse based on private judgment. Hence a dis-
pensation presupposes legislative power, nay is, so to
speak, coextensive with it. Therefore the Pope can dis-
pense in all matters subject to his legislation, that is to
say, in ecclesiastical, but not in divine laws.7 The same
power is vested in his successor, because he is his equal,
and " par in parent non hahet imperium" But the Pope
can also dispense from episcopal laws, for he is superior
to the bishops. On the other hand a bishop may dis-
pense from papal laws if he has received the necessary
faculties from the Apostolic See. The same right be-
longs to superiors of exempt religious orders.
The Pope is not bound by the existence or validity of
reasons, but can dispense validly without reason, although
it is not to be presumed that he would proceed thus, since
a dispensation is a sore on the law and should not be
used for destruction. This is not the case with those in-
fdrior to the Pope, hence canon 81 establishes the power
of those inferior to the Roman Pontiff.
Can. 81
3
A generalibus Ecclesiae legibus Ordinarii infra Ro-
manum Pontifkern dispensare nequeunt, ne in casu
quidem peculiari, nisi haec potestas eisdem fuerit ex-
plicite vel implicite concessa, aut nisi difficilis sit re-
cursus ad Sanctam Sedem et simul in mora sit pericu-
7 A difficulty mizht arise from man. the Pontiff can, in virtue of
vows and the tnalrimonium ritum; his vicarious power, render the
but in such laws, the obliging force obligation ineffective. (Cfr. Wernz,
ol which depends on the free will of /. c., I, a. t*2.)
s ,1,., Original from
UNIVERSITY OF WISCONSIN
>gk
N
■
176 GENERAL RULES
lum gravis damni, ct de dispensation agatur quae
a Scdc Apostolica conccdi solct.
Ordinaries inferior to the Pope cannot dispense
from the general laws of the Church, not even
in a particular case, unless they have received
that power either explicitly or implicitly, or in
cases in which recourse to the Holy See is diffi-
cult and there is at the same time grave danger in
delay, and the dispensation requested is one
which the Holy See is wont to grant.
Two sources for dispensing, therefore, are open to the
Ordinaries, either a communicated power or the nature
of the case requiring dispensation. Explicit power is
granted through faculties which now will probably be
forwarded in certain formularies newly to be issued and
communicated directly to the Ordinaries ; implicit power
belongs to those who partake of the faculties by virtue
of their office, e. g., Vicars General. Implicit concession
is furthermore granted by the " caput Uceat " of the
Council of Trent,8 which empowers Ordinaries to dispense
in all cases of irregularity and suspension which arise
from a secret crime, with the exception of voluntary
homicide and such crimes as have been brought before the
episcopal court by citation.
The class of cases mentioned in the second part of our
canon may also be said to afford an ordinary reason for
which those inferior to the Pope can dispense from the
common law.
Three conditions must concur to make a dispensation
valid9 and licit: recourse to the Holy See must be dif-
8 Sess. 24, c, 6 de ref. queunt," which might be restricted
B The canon simply says " ne- to licitness; yet because dispenaa-
OOglL UNIVERSITY 0FWI5C0NSIN
CANON 82 177
ficult, there must be danger of grave damage, and the case
must be subject to dispensation. The concurrence of
these conditions may especially be verified in matrimonial
cases, but also in irregularities arising from a hidden de-
fect or crime. By recourse to the Holy See is here un-
derstood ordinary recourse, i. e.j by mail, not by tele-
graph, which is an extraordinary means of communica-
tion. A grave danger is present when escape is al-
most, not entirely, impossible, and hence it is not neces-
sary that it be a casus fortuitus, or unforeseen inci-
dent.10 How grave the danger must be, cannot be deter-
mined by a general rule ; but scandal "or injury of reputa-
tion would suffice to constitute a serious danger. Finally,
the case must be one from which the Holy See is wont
to dispense, for nothing is included in the general conces-
sion which the superior is not likely to grant.11 Hence,
whatever is rare, extraordinary, unusual, or difficult to
obtain from the Holy See, does not come within the
sphere of episcopal power, for instance, irregularities in
defectu corporis enormi. This is the viewpoint which
the Ordinaries — and religious superiors also, for the
canon does not add " loci " or " locorum " — must take in
relation to the common law as contained in the Code.
The next canon deals with the power of Ordinaries
regarding diocesan laws and laws of provincial councils.
Can. 82
Episcopi aliique locorum Ordinarii dispensarc valent
tionB must be strictly interoreted, atuel, Comment in Reg. luris; Put-
and because " negatio plus tollit «r, L c, p. 36 C, enumerates still
quam affirmiitio ponit," we believe ether cases, but with the exception
that the interpretation given above is of dubium jurit or facti (cfr. can.
correct. 15) these cannot now be admitted,
10 Barbosa, Tractates Vara, p. because the Code is silent about
378, p. ro8. them.
liRegula juris in 6°; Reiffen-
P
'■-.
jle
I , Original from
UNIVERSITY OF WISCONSIN
178 GENERAL RULES
a
in legibus dioeccsanis, ct in legibus Concilii provin-
cialis ac plenarii ad normam can. 291, § 2, non vera
in legibus quas speciatim tulcrit Romanus Pontifex
pro illo peculiari territorio, nisi ad normam can. 81.
■
■"■
■--.
Bishops and other diocesan Ordinaries can dis-
pense from diocesan laws and from the laws of
provincial and plenary councils, according to the
rule contained in canon 291, §2, but not from
laws specially given by the Roman Pontiff for
that territory, except in conformity with canon
81.
There is a gradation in this canon as to the power of
dispensing. Bishops can dispense from their own (dio-
cesan) laws with or without reason, for of their own laws
they are the lawgivers in the proper sense. The second
class of laws referred to comprises those of provincial or
plenary councils whose decrees are supposed, according
to canon 291, to be recognized by the Holy See. From
these the Ordinarii locorunt cannot licitly dispense ex-
cept in particular cases and for just reasons. Now a
particular case is one which occurs less frequently, and,
generally speaking, touches single persons or parishes.
For to dispense a whole diocese or province, if it should
happen at stated or frequent intervals, would be a gen-
eral not a particular dispensation. Thus to dispense
the whole clergy would also be a general dispensation.
Finally, the canon adds that the Ordinaries cannot dis-
pense from particular laws given by the Holy See for
that particular territory ; for instance, from the law gov-
erning the nomination of candidates for vacant sees in the
United States (S. C. Cons., July 25, 1916), or, perhaps.
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CANON 82 179
from the law regarding holy-days. The clause, however,
permits dispensation in accordance with canon 81.
Descending in the scale of the hierarchy the Code says :
Can. 83
Parochi nee a lege generali nee a lege peculiari dis-
pensare valent, nisi haec potestas expresse eisdem con-
ccssa sit.
Parish priests can dispense neither from a gen-
eral nor from a particular law, unless they have
expressly received that power.
N
This text states an obvious truth, and at the same time
deals a blow to a certain tendency which permitted pa-
rochi ex cotisuetudine to dispense in several cases.12
For the law requires an explicit communication of that
power. If parish priests need a dispensation from a gen-
eral law, as embodied in our Code, the faculty must come
from the Pope, either directly or indirectly through the
Ordinary; if a particular law is to be dispensed from, a
distinction must be made. If the law in question has
been enacted by a plenary council, the habitual faculty
of dispensing therefrom must be obtained from the Pope,
either immediately or mediately, as in the case of the
general law. For single cases, we believe, the bishops
can without special faculties communicate the power of
dispensing to their parish priests, for they have received
this power by law (can. 291), and not from man. To
dispense from merely diocesan laws depends exclusively
on the bishop, who may therefore grant that faculty, either
habitually or ad cerium numerum casnum, to parish
ii Cfr. Putzer, /. c, p. 36, as to sttnence; servile work prohibited;
dispensations from fast and ab- see can. 1245.
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
180 GENERAL RULES
priests. However, it must be done expressly, either
orally or in writing, and must not be presumed, for a pre-
sumption is no express concession.
After having determined the persons who may exercise
the power of dispensation, the Code emphatically rein-
forces the Tridentine decree concerning the causes of dis-
pensation :
Can. 84
§ 1. A lege ecclesiastica ne dispensetur sine iusta et
rationabili causa, habita ratione gravitatis legis a qua
dispensatur; alias dispensatio ab inferiore data illicita
et invalida est.
§ 2. Dispensatio in dubio de sufficientia causae licite
petitur et potest licite et valide concedi.
§ 1. No dispensation from an ecclesiastical
in
law is to be granted without a just and reasonable
cause, and due regard must always be had to the
importance of the law from which the dispensa-
tion is given; otherwise the dispensation given by
an inferior is illicit and invalid.
§ 2. When there is doubt as to the sufficiency
of the cause, a dispensation may be lawfully
asked for, and licitly and validly granted.
The cause may be the motive or impelling reason, the
former being the raison d'etre of the dispensation,
the latter only an aid, or, as the Scholastics express it:
the motive cause is "ad esse simpliciter" the impelling
cause, " ad facilitts esse." Here the causa must be under-
stood as the motive cause.18
-
u If one reason is sufficient, two Tractates Varii, Axioma 197, /. c,
reasons perhaps convince: " ritiones p. 130.
duae vincunt unara." Barbosa,
Go >gle
j , Original fro m
UNIVERSITY OF WISCONSIN
CANON 84 181
j
Concerning the time when the causa must be verified,
we refer to Can. 41 de rescriptis: If no executor is ap-
pointed, the cause must exist at the time of granting the
dispensation; if an executor handles the dispensation,
the cause must be verified at the moment of his signature.
-
As to the nature of the cause, the Code says that it
must be just and reasonable. Justice refers to law, which
admits certain causes and rejects others. Thus a list of
canonical causes is set up, e. g., for matrimonial dis-
pensations. The cause must be reasonable because, as
law pertains to reason, so also must a dispensation
partake of reason. The judgment as to the latter qual-
ity lies with the grantor.
Furthermore there must be a proportion between the
seriousness or importance of the law and the dispensa-
tion, which is a vulnus legis. Hence for relaxing a
serious law a serious and solid reason must be advanced ;
a graver cause is required to dispense from a major im-
pediment than from a minor.1*
Besides, it is but just that the persons should be con-
sidered for whom a dispensation is issued, because in-
fluential persons are more important for the public wel-
fare than ordinary mortals.16
Lastly, the circumstances must be considered, not only
of persons, but also of consequences which might prob-
ably follow, e. g., scandal, damage, injury, etc. If the
reason alleged is not just and reasonable, the dispensation
granted by an inferior is illicit and invalid. Notice
that the canon does not say, as the Tridentine Decree did
(Sess. 25, c. r8) that it is subreptitious ; hence there
can be no longer any doubt as to the view taken by the
Church. Therefore, if, after the application of a dis-
14 Cf r. can. 104a f. II Cfr. Putier. I. c, p. 76 f.
p
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
182 GENERAL RULES
pensation, the alleged cause is found to be without founda-
tion, the dispensation is null and void (with the exception
of can. 1054).
§ 2 mitigates the apparent harshness of § 1, inasmuch
as it declares that, if the sufficiency of the reason alleged
is doubtful, the dispensation holds.
The next canon treats of the interpretation of dispensa-
tions.
Can. 85
Strictae subest interpretation! non solum dispensatio
ad normam can. 50, scd ipsamet facultas dispensandi
ad certum casuzn conccssa.
Dispensations must be strictly interpreted, ac-
cording to canon 50; also the faculty of dis-
pensing granted for a certain case is subject to
strict interpretation.
In order not to repeat what has been said before, we
only remind the reader of the rule that dispensations
must never be extended to cases and persons not com-
prised in the faculties, as will be further explained in
matrimonial cases. But other dispensations, too, e. g.
from vows, must be strictly interpreted ; thus the power
of dispensing from vows does not include that of dis-
pensing from oaths. Besides, the clausula? and the
stylus Curiae must be closely observed.10 Canon 85
further mentions dispensations granted ad certum castttn.
Here, a fortiori, extension of restriction is inadmis-
sible, because no argument from dispositio similis can
be drawn, e. g., if one receives the faculty to dispense
a certain person, this cannot be applied to another, al-
though he or she be similarly situated.
i« Cf. Putter, I. c.t p. 12 f., p. 165 f.
, ,|,, Original from
UNIVERSITY OF WISCONSIN
gle
CANON 86 183
a
The term " facultas " must be strictly interpreted in a
determined case, for the general supposition is that there
are personal qualities, as well as a mandate implied, which
are subject to strict interpretation. The last canon treats
of the cessation of dispensations.
N
■
Can. 86
Dispensatio quae tractum habet successivum, cessat
iisdem modis quibus privilegium, nee non certa ac
totali cessatione causae motivae.
A dispensation which permits of successive ap-
plication ceases the same way as privileges, and
with the certain and complete cessation of the
motive cause.
What has been said concerning the manner in which
privileges cease, must be applied here also, because habit-
ual faculties are numbered among the privileges beyond
the law (can. 66, § 1), and hence cease by renunciation,
repeal, or the death of the grantor, if there is a clause that
says so, otherwise not. To ask whether a dispensation
can be lost by contrary usage and prescription seems,
at first sight at least, silly. Yet a dispensation which
permits of successive application {tractum successivum) ,
e. g.t eating flesh-meat, saying a " black Mass," etc., is
not exhausted by one act and may therefore be forfeited,
if contrary usage and an imperative act of the superior
combine. Since the Code says that such dispensations
lose their force in the same way as privileges, we must
apply that disposition of the law also to the case in hand.
Finally, the Code provides that if the motive cause
ceases entirely and for certain, the dispensation also
ceases. The two conditions (" entirely and for cer-
oogle
v ,|,, Original fro m
UNIVERSITY OF WISCONSIN
184 GENERAL RULES
tain ") must be taken conjointly. For instance, if one
has received a dispensation from the vow of chastity
ad usum matrimonii on account of temptations, he may
continue the use of marriage even after the cessation of
these temptations, because there is no certainty. But if
one has obtained a dispensation from reciting the Breviary
on account of weak eyes, he cannot continue the use of the
dispensation after his eyesight has been completely re-
Stored. Taking into consideration can. 85, regarding
a faculty given for a determined case, the dispensation
last mentioned must be held to be exhausted after appli-
cation, and is therefore negotium finitum. For it is gen-
erally supposed that in such a case the faculty was given
in forma mandati, which expires after application and
admits of no extension or eptkia.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
&
—
(tiff
Jill'
»
'-■
flli!
'■
10!
i#
■
-
ni
-
*J
::
-
re
*
-
00
~
E
-■
■
Si
>
•
_!'
n
PI
Q
-
d
►ogle
Original from
UNIVERSITY OF WISCONSIN
Mo^nais*
V
B89097198154A
C
I
oogle
Original from
UNIVERSITY OF WI5CON5I
-.«
•s! » <
Original from
UNIVERSITY OF WISCONSIN
■
pi
-
j>*
■J ■■-■-■:-,- W&k ■
^^^"■^
ACOMME IAR\
■
CANON LAW
1 ^B
■
■
■
:ized by Google
Original from
UNIVERSITY OF WISCONSIN
Hibrarp
of tijc
ainibrrsitp of }i>iSionsui
..: by '
alfrorn
FWISCONSIN
V
!
oogle
Original from
UNIVERSITY OF WISCONSIN
►ogle
Original from
UNIVERSITY OF WISCONSIN
>Ie
Original from
UNIVERSITY OF WISCONSIN
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
I A COMMENTARY ON
THE NEW
CODE OF CANON LAW
By THE REV. CHAS. AUGUSTINE, O.S.B., D.D.
Pnfus9r oj Canon La*w
■
Volume II
Clergy and Hierarchy
THIRD EDITION
R HERDER BOOK CO.
n South Broadway, St. Loub, Ma
AND
68 Great Russell St. London, W. C
1919
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
N
■
Cum Pfrwww Superiorum
NIHIL OBSTAT
SH. Ludovici, die Sept. 7, W*
F. G. Holweck,
Censor Librorum
IMPRIMATUR
SH. Ludovici, die Sept. 8, 1918
•^Joannes J. GUnnon,
Archie piscopus
Sti. Ludovici
Copyright, 1918
by
Joseph Gummersbach
All rights reserved
Printed in U. S. A.
VAIl-MUOU COMPAKT
ftUMNANTOM AMD «■!• ™"«
►ogle
Original from
UNIVERSITY OF WISCONSIN
CQ
587678
2
TO
THE BELOVED HXERARCH OF OUR DIOCESE
THE RT. REV. MAURICE FRANCIS BURKE, D.D.
BISHOP OF ST. JOSEPH, MO.
THIS VOLUME IS RESPECTFULLY DEDICATED
1893-1918
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
G] Original from
UOglC UNIVERSITY 0FWI5C0NSIN
FOREWORD
This second volume is dedicated to the Rt. Rev.
Bishop M. F. Burke, D.D. (By mistake the dedication
appeared in Vol. I.) On June 24, 1918, Msgr. Burke
celebrated, amidst a gathering of the clergy, the silver
jubilee of his episcopal career in our diocese. During
this time our monastery as well as the author himself
have enjoyed the most cordial and unruffled relations
with the noble-hearted prelate. Wherefore it seemed ap-
propriate to offer this book as a token of gratitude and
esteem to his Lordship.
A word may be added concerning the make-up of the
Commentary. Semi-official notice received from Rome,
in response to our inquiry, caused us to limit our work
to a commentary proper, since translations into the ver-
nacular are not only not desired by the authorities, but
rather discouraged, nay, at least for the whole Code as
such, forbidden. Therefore we had to embody the con-
tents of the Code in the Commentary, and rendered the
Latin text into English only when it seemed absolutely
necessary, or where no commentary was needed. Some
canons have been neither translated nor paraphrased be-
cause the person concerned might have been offended by
a translation or paraphrase.
The Author
Conception Abbey, Mo.
July, 1918.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
>Ie
I , Original fro ni
UNIVERSITY OF WISCONSIN
p
TABLE OF CONTENTS
BOOK II.
ECCLESIASTICAL PERSONS
PACI
Introductory — Persons in General i
Domicile 12
Blood Relationship and Affinity 19
Various Rites 20
Moral or Juridical Persons 23
Ethical Qualities of Legal Acts (Vis, Metus, Error) 28
Consent or Advice to be Asked by the Superior ... 34
Precedence 36
PART I. THE CLERGY 43
Sect. i. The Clergy in General 43
Title I. Incardlnation in a Diocese 50
Title II. Rights and Privileges of Clerics ... 56
The Prtvilegium Canonis 58
The Prtvilegium Fori 59
Personal Immunity 64
Beneficium Competentiae 67
Loss of the Clerical Privileges . 68
Title IIL Obligations of Clerics 70
Religious Duties 70
Clerical Obedience 71
Scientific Equipment of the Clergy 74
Celibacy of the Clergy 77
Divine Office (Breviary) 82
Clerical Dress 84
Occupations and Amusements forbidden to the Clergy 85
Amusements 92
Negotiatio Prohibita 95
Absence from the Diocese 98
Title IV. Ecclesiastical Offices 100
Ch. I. Appointment to Ecclesiastical Offices . . 104
>Ie
£ * -» v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CONTENTS
IAGB
Art. I. Libera Collatio tog
_
Requisites of Ecclesiastical Office Holders . .no
Time of Appointment 112
Incompatible Offices 113
Art. II. Election 117
1. Election of a Pope 117
2. Election of Bishops 119
Time and Convocation 123
The Electors {Vox Act'wa) 127
Balloting 134
Compromise 139
The Number of Votes Required 143
Effect of the Election 143
Devolution 147
Art. III. Poatulation 148
Ch. II. Loss of Ecclesiastical Offices . . . . 154
Resignation 155
Tacit Resignation 159
Deprivation of Office 163
Transfers 167
Title V. Ordinary and Delegated Power . . . .170
Ordinary Jurisdiction 171
Delegated Jurisdiction 174
Interpretation of Jurisdiction 177
Extent of Jurisdiction 170
Duties of Delegates 182
Several Delegates 185
Cessation of Delegated and Ordinary Jurisdiction . 187
Power of Order 191
Title VI. Return of Clergy men to toe Lay State . 193
Sect. II. The Hierarchy 200
The Local Organizations 200
.Title VII. The Supreme Power and Those Who Par-
take Thereof by Ecclesiastical Law .... 207
Ch. I. The Roman Pontiff 207
The Papal Titles and Insignia 214
Ch. II. General (Ecumenical) Councils . . . 217
Order and Authority of a General Council . . . 023
Ch. III. The Cardinals of the Holy Roman
Church 227
jle
/""* ^ v J„ Original from
UNIVERSITY OF WISCONSIN
CONTENTS
Office and Rank of Cardinals ....... 229
Creation and Qualifications of Cardinals . . . .231
Option 235
The Sacred College as a Corporation 237
Duties and Privileges of Cardinals 238
Rights of Cardinals in Their Titles and Sede Va-
cante 243
Ch. IV. The Roman Court 246
Art. I. The Sacred Congregations 250
The Holy Office .250
The S. Consistorial Congregation 252
The S. Congregation of the Sacraments . . . 254
The S. Congregation of the Council .... 256
The S. Congregation of Religious 257
The S. Congregation of the Propaganda . . . 259
The S. Congregation of Rites 261
The S. Congregatio Ceremonialis 262
The S. Congregation for Extraordinary Ecclesias-
tical Affairs 263
The S. Congregation of Studies 263
The S. Congregation for the Oriental Church . 264
Art. IT. Tribunals of the Roman Court .... 265
The Sacra Poenitentiaria . . 265
The Rota and the Signatura 267
Art. III. The Offices of the Roman Court ... 269
The Apostolic Chancery 269
The Apostolic Datary 270
The Revercnda Camera Apostolica .... 271
The Secretariate of State 272
Authority of the Roman Court and its Decisions 274
Ch. V. Legates of the Roman Pontiff .... 278
Ch. VI. Patriarchs, Primates, Metropolitans . 286
The Pallium 292
Precedence . . 295
Ch. VII. Plenary and Provincial Councils . . 207
Plenary Councils 298
Provincial Councils 300
Conciliary Proceedings . •. 303
Ch. VIII. Vicars and Prefects Apostolic . . .310
Ch. IX. Apostolic Administrators 326
p
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CONTENTS
PAGI
Ch. X. Inferior Prelates 331
Title VIII. The Episcopal Power and Those Who
Partake Thereof 340
Ch. I. The Bishops 341
Qualities Required in a Bishop 343
Duties and Rights of Bishops 348
Pontifical Functions . 356
Residence . 358
Missn pro Populo 361
Reports to the Holy See 364
Visitatio ad Limine 36s
Diocesan Visitations 367
Precedence . 375
Titular Bishops 375
Episcopal Privileges 375
CH. II. COADJUTOHS AND AUXILIARY BlSHOPS . . . 378
Rights of Coadjutors 380
Residence 382
Ch. III. Diocesan Synods 384
Ch. IV. The Diocesan Court 391
Art. I. The Vicar General 393
Akt. II. The Chancellor and Other Notaries —
The Episcopal Archives 406
Custody of Archives 411
Secret Archives 41J
Other Archives of the Diocese 417
Art. III. Synodal Examiners and Consultors . . 418
Ch. V. Chapters of Canons 424
The Canonicus Theologus and the Poenitentiarius . 43*>
The Appointment to Canonicates 440
Honorary Canons 441
Insignia 444
Statutes and Meetings 446
Duties of Canons 449
Rights and Privileges of Canons 455
Ch. VI. Diocesan Consultors 463
Appointment of Consultors 465
Qualities and Obligations 466
Ch. VII. Quasi-Vacancy and Vacancy op the Epis-
copal Sra — The Vicar-Capitular .... 470
5 '<-u\<iL* Original from
lOOglt. UNIVERSITY OF WISCONSIN
CONTENTS
MM
Vacancy Proper 474
The Vicar-Capitular 480
Qualities of the Vicar-Capitular 484
Rights of the Vicar-Capitular 487
Ch. VIII. Rural Deans 497
Ch. IX. Parish Priests 505
Incorporation 514
Irremovable and Movable Pastors 517
Appointment of Pastors 521
Examination — Concursus 527
Unity and Possession 534
Rights of Parish Priests 5$
Duties of Pastors 543
Obligation of Residence 545
Application of the Mass pro Populo 549
Particular Duties 55^
Care of the Sick and Charitable Works .... 554
Parish Books and Archives 556
Ch. X. Assistant Priests (Vicars) ..... 559
Vicars Proper 559
Vicars ad Interim 563
Temporary Substitutes . » 567
Assistants Proper . . 568
Coadjutors 57r
Removal 576
Precedence of Assistants 577
Ch. XI. Rectors of Churches 580
Appendix. Episcopal Faculties 587
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
i I Original from
dby^-OO^IL UNIVERSITY OF WISCONSIN
■
9
a
THE NEW CODE OF
CANON LAW
BOOK II
ECCLESIASTICAL PERSONS
INTRODUCTORY — PERSONS IN GENERAL
Person (persona) physically signifies a being en-
dowed with life, intelligence, free will, and individual
existence. The Roman law, however, restricted its mean-
ing to one capable of right (subjectum iuris capax), and
slaves were not considered to be persons.1
Roman* and civil, as well as canon law, also know
artificial or moral persons, i. e., such as are created by
human law for the purposes of society and government
(corporations or bodies politic).* Such a corporation
may be called " e pluribus unum" as our coins express it,
or a subject consisting of several physical persons.
Three elements must combine to constitute a moral
person or corporation: (a) a plurality of persons, ac-
cording to the well known adage, " Tres faciunt colle-
gium;"* (b) corporate rights embodied in the constitu-
iCf. 0 4. /«'•/ If 1 6. The ■lave* ktutigen Reckts. ed. 5, P- 104.
were called Awp^troiwoi or person- * Blaekatone-Coolcy, Commentary,
lesa; cfr. Caatiodoriua, Variorum, I, 122.
VI, 8 (Migne, 69, 689). 4 Ft. 85, Dig*, 50, 16; New Inter-
a Dig., i, 5; Jnt; I, 3; Verlng, national Encyc, 1904, V, 4J(i-
CescK *nd Pondekten d, torn, und
jle
j % Original from
UNIVERSITY OF WISCONSIN
2 ECCLESIASTICAL PERSONS
tion and pertaining to the members as such, i. e., because
o
they are members of the corporation; (c) legal acknowl-
edgment or sanction. Only when these three conditions
are verified, do we have a corporation in the proper sense.
It is not amiss to add that the civil law does not create
these corporations but finds and accepts them as products
of the social life.8
English law distinguishes between corporations aggre-
gate and corporations sole, the former being what we
have defined above, whereas a corporation sole consists of
one person only and his successors, incorporated by law
in order to give them certain legal capacities and ad-
vantages, particularly that of perpetuity, which in their
natural persons they could not enjoy. In this sense the
King of England is a corporation sole; so is a bishop;
so are some deans and prebendaries, distinct from their
several chapters; and so is every parson and vicar of
the established Church.0 The U. S. acknowledge no
ecclesiastical but various civil corporations.0
In order to construe a corporation, some authors re-
sorted to a fictio iuris, which consists in the assumption
or supposition of many physical persons as forming one
body or person. There is no necessity whatever to main-
tain this theory. For the sum-total of corporate rights
embodied in the community which is represented by its
legal head or manager is a reality in the realm of law
no less than the persons endowed with those rights.
The legal fiction theory results from a too material con-
ception of right or law.
But neither can the theory which takes the end or
purpose of a moral person as the base and bearer of
corporate rights, satisfy the inquirer after the constitu-
0 Blackstone-Cooley, Commentary, o Zollmann, Am, Civil Church
I. 47a. Law, 191 7, pp. 38 ff.
v ,1,., .'.ririinalfrorn
UNIVERSITY OF WISCONSIN
>gle
■
pi
CANON ioo 3
ent element of a corporation. The end indeed specifies,
and gives coloring to, a corporation, but it cannot create
or produce rights. The creation or production of rights
must in the last analysis be attributed to human reason
and will, whence every law arises, subordinate, of course,
to the eternal law.7 Therefore a corporation or legal
community is the bearer of corporate rights and if not
fully autonomous, only requires the sanction of the com-
petent authority to actuate itself.
Can. ioo
§ i. Catholica Ecclesia et Apostolica Sedes moralis
personae rationem habent ex ipsa ordina tione divina ;
ceterae inferiores personae morales in Ecclesia earn
sortiuntur sive ex ipso iuris praescripto sive ex spe-
ciali competentis Superioris ecclesiastici concessione
data per formale decretum ad finem religiosum vel
caritativum.
§ a. Persona moralis collegialis constitui non potest,
nisi ex tribus saltern personis physicis.
§ 3. Personae morales sive collegiales sive non colle-
giales minoribus aequiparantur.
This first paragraph sketches the charter of the
Church founded by Christ. The following two estab-
lish the relation of dependent corporations and societies
to the Church.
Here we might enlarge upon the constitution of
the Church. However a brief summary must suffice to
explain the necessary elements of that society which
derives its origin from God. For a more elaborate ex-
position we must refer the reader to fundamental theol-
ogy and to that part of canon law which goes by the
name of public ecclesiastical law,
T Cfr. Bachofen, Summa Iuris EccL Pub,, 1910. P- 14 ft
C' -%r\r%\& Original fro rn
lOOglt UNIVERSITY 0FWI5C0NSIN
4 ECCLESIASTICAL PERSONS
The Catholic Church 8 claims a divine foundation, do-
cause Christ, its Founder, came to establish the Kingdom
of God, or the Kingdom of Heaven, which He embodied
in the flock gathered by Him and placed upon the rock
that was Peter, the prince of the Apostles. Here we
find two essential elements of a corporation : a plurality
of persons and corporate rights embodied in the visible
head of the college or society.
The most important and essential element of the
Church, as of every other corporation, is the constitution,
which determines the nature and purpose of the corpora-
tion as well as the mode of organization and the rights
of the members.- That constitution, in its essential fea-
tures, was mapped out by God and hence is of divine
origin. The nature and purpose of the Church is the
same as that for which Christ was sent into the world,
viz.: the establishment of the Kingdom of God. This
end and purpose is plainly supernatural or religious.
This does not mean, however, that the Church does not
need natural, even material, means to realize its end. A
corporation consisting of men composed of body and
soul, who can be led to spiritual apprehension only
through the medium of the senses, cannot forego ma-
terial, bodily means. This is very palpable in the sup-
port of ministers and external worship.
To direct a society to the end for which it is instituted
an authority is needed. For uniform, constant, and un-
swerving direction of a multitude with many and differ-
ent views and aspirations is impossible without some one
having power to impose obligations and to distribute
rewards. This authority Christ has built into the foun-
dation of His Church, as it were, by conferring on St.
Peter a supreme and indivisible power similar to that
i See ibid., p. aa ff.
P
'■-.
Go >gle
. | ^ Original from
UNIVERSITY OF WISCONSIN
CANON ioo 5
which He Himself enjoyed0 However, this power, in-
divisible and supreme, was not the only one which the
Lord imparted to His Apostles. Besides St. Peter He
appointed others who should be heard and should rule
portions of the flock.10 These are the bishops (or se-
niors) mentioned in the Acts of the Apostles.
If Christ wished His Kingdom to be stable and perma-
nent, He must have provided means of perpetuation and
continuity. This He did by providing successors to St.
Peter and the other Apostles. The Fisherman's Throne
was erected above Peter's tomb, and ever since the Ro-
man Pontiffs, viz., those who succeeded St. Peter in the
see of Rome, were acknowledged as Vicars of Christ. To
them, therefore, belongs in equal measure the supreme
and indivisible power over the whole Church. Under
them the bishops by divine institution rule their respective
districts. This is the essential organization of the
Church as far as its external constitution is concerned.
Priests and ministers also share in the power of the
hierarchy, but their jurisdiction, as such, does not com-
prise external acts of a public nature.
How is this power exercised? Through a threefold
function, called legislative, judiciary, coercive. If we
speak of a threefold power, we do not mean to dis-
tribute it among various functionaries and bodies, as
Montesquieu has done, but we consider it merely under
various aspects or effects, which differ in procedure and
execution. Thus legislation means the power inherent in
the Supreme Pontiff to make laws for the entire Church ;
judiciary power applies these laws by means of judgment
and trials or simple decisions, whilst coercive or execu-
tive power renders the law and its application effective
<
• Cir. Matt 16, 18; Luke a», 31; loCfr. Matt 18, 18; AcU jo, 2%,
John It. 15.
oogle
i*"* -» ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
6 ECCLESIASTICAL PERSONS
and respected, whilst at the same time it conserves the
public welfare and provides satisfaction for violations
of the public order.
A moral person endowed with such prerogatives is
called a "perfect society" This term necessarily in-
volves: (a) an existence independent of every other so-
ciety, in other words, autonomy or sovereignty; (b) in-
dependence of end or purpose; (c) independence in the
attainment of end or pursuit of means proportionate
to the end.
The question arises : Are these conditions verified in
the Catholic Church? What about the third requisite
of a moral person, vis., legal sanction? If legal would
mean only what the State sanctions, then the Church
would have had no legal existence for more than three
hundred years. But legal here means the natural right
of existence. If God is the author of nature, and as such
also of the State, He certainly enjoys power sufficient to
give legal existence to a society which He Himself wished
to found. The God of nature can not contradict the
God of grace; neither does legal sanction given by God
to the State exclude legal sanction given by the same God
to the Church. When Constantine issued his edict of
toleration 312-313, he did not legalise the Church, but
merely acknowledged publicly what was due to her.
Legal sanction accrues to the Church by virtue of her
divine foundation. The Church is a moral person in
the most perfect sense of that word. The plurality
of members is shown in her catholic character, whilst
unity is manifest from her constitution, which was set up
expressly for the preservation of one faith and one rule or
-
government. In that same constitution is also included
diversity of members. Not all the members of the
Church are endowed with governing powers. There-
Q
*Ie
I , Original from
UNIVERSITY OF WISCONSIN
-
CANON ioo 7
fore the Church is called a societas inaequalis, which
implies different rights and obligations on the part of its
members, — a distinction between the clergy and lay-
men— between pastors and flock, between those who
sanctify and those who are sanctified, between those who
teach and those who are taught.11
Hierarchy in the strict sense means "a body of per-
sons who enjoy ecclesiastical power in a different, grad-
ually determined, degree." 12 Such is the case in the
Catholic Church, of which can. ioo asserts that is a
moral person. However, the Church forms a juridical
person only in conjunction with the Roman Pontiff, be-
cause without him it would lack one of its essential con-
stituents. The Supreme Pontiff (Apostolic See) would
form a moral person even if the entire body of the
faithful would cease to exist — an unlikely hypothesis,
which is here stated merely to illustrate the necessity
of a supreme head. Without exaggeration we may say
that the Pope is a corporation sole by virtue of his sov-
ereignty, like the King under' English law. For this
reason the Pope is said to have all laws in ventre,™ i. e.,
he combines the whole legislative as well as judiciary and
coercive power in his own person.
Besides the Church universal, or rather within it,
there are other, inferior or minor juridical persons. As
their purpose is subordinate to that of the whole Church,
and they are therefore dependent on her with regard
to the attainment of their end and the pursuit of the
means leading thereto, these minor juridical persons nec-
essarily owe their very existence to her. This is to be
particularly emphasized from the legal point of view.
it Cfr. Schema Cone. Vatic, &e Eccl., 9 36; Smith, Elements, I, p.
Ecclesia Ckristi. c. 10. 83.
12 Aichner, Compendium Juris i» Cfr c. I. 6°, I, 2 de Coaititut
oogle
Original fro m
UNIVERSITY OF WISCONSIN
8 ECCLESIASTICAL PERSONS
For if such a subordinate corporation would renounce
allegiance to the Apostolic See, i. e.t fall away from
the Church, it would lose all its corporate rights, and
consequently also its legal hold on church property,
which would in that case belong to those members who
remained faithful to their allegiance.1*
Such inferior corporations, also called imperfect socie-
ties, may come into existence and obtain a legal stand-
ing in the Church either by law or by a formal decree
of any competent superior. Legal consent is under-
stood to be given for the formation of a diocese or ca-
thedral chapter as soon as all the requisites are present.
(On religious corporations see the next section.)
The Code expressly mentions moral persons whose
end is charity. Such charitable corporations can be
juridical persons only if the physical persons constitut-
ing them devote their time to charity, but do not them-
selves live on charity for the sake of charity. Some
ancient confraternities, e. g., the Brothers of Mercy
and various guilds, were of such a character. An or-
phanage, a hospital, etc., is not a juridical person in the
strict sense ; it may be called a charitable institute, or
pia causa, because those who partake of its benefits are
not members with definite rights, but mere beneficiaries
of charity. In these therefore the end or purpose may
be said to be the subject of rights.15 Paragraph 3 of our
canon compares such inferior or subordinate corpora-
tions and fellowships or societies in a wider sense to
physical persons who are not yet of age (minors). The
14 Cfr. Bachofen, Summa, p. 43 stinatarti (orphans, sick, etc.) are
ff. the subjects of quasi-corporate
IB Meurer, Dit Jurirtitchen Ptr- rights. Cfr. Bachofen, Summa, p.
sontn, 1901, p. 21, contradicts our 26.
exposition and holds that the da
►ogle
Original from
UNIVERSITY OF WISCONSIN
CANON 87 9
tertium comparationis is the dependence of both as to
free and unhampered action (see can. 89).
After this necessary explanation of the Church as a
perfect juridical person or corporation in the highest
sense, we now proceed with our commentary secundum
ordinem.
Can. 87
Baptismate homo constituitur in Ecclesia Christi
persona cum omnibus christianorum iuribus et omciis,
nisi, ad iura quod attinct, obstct obex, ecclesiasticae
communionis vinculum impediens, vcl lata ab Ecclesia
censura.
Baptism is the sacrament of initiation, " the sacrament
of Christian grace," the " receiving of Christ's livery," ,fl
concerning which more is said in the third book of the
Code.17 The effect of baptism consists in obtaining cer-
tain rights and assuming certain obligations. These are
partly general, partly particular. All Christians have the
same general rights and obligations with regard to spir-
itual favors and aids to salvation.18 But not every Chris-
tian is obliged to embrace the clerical or religious state,
although all who are called to it have a right to enter
that state. In this respect the Catholic Church is truly
democratic.
It would be wrong to hold that children, when they at-
tain the use of reason, have a right to decide whether or
not they wish to keep their baptismal vows.18 One who
by formal heresy or schism or apostasy rends asunder the
bond that unites him with the Church, is yet bound by
i« Cfr. Coustant, Epistolat RR. 10 Cfr. Cone. Trid,, Sew. 7, c. 8,
Pont., 1721, pp. 8?5i 545. 5SO- M de bapt; Pohle-Preuu. Tht Sae-
it Cfr. Canon 737 B. roments, 1015, II, 273 ff.
is Cfr. Canon 68a.
ogle
v ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
io ECCLESIASTICAL PERSONS
St
the obligations resulting from his baptismal vow. Again,
one who commits a crime upon which the penalty of ex-
communication (censura) has been laid by law or inflicted
by legitimate authority, loses his rights until absolution is
obtained, but his obligations remain.20
■
Can. 88
§ i. Persona quae vicesimum primum aetatis annum
explevit, maior est; infra hanc actatem, minor.
§ 2. Minor, si masculus, censetur pubes a decimo-
quarto, si femina, a duodecimo anno completo.
§ 3. Impubes, ante plenum septennium, dicitur in-
fans seu puer vei par vulus et censetur non sui compos ;
expleto autem septennio, usum rationis habere prae-
sumitur. Infanti assimilantur quotquot usu rationis
sint habitu destitute
English and American law agree in fixing the age of
minors at from fourteen to twenty-one.21 Between these
two termini lie the years of discretion, wherefore minors
are capable of some, but not of all, legal actions. A
margin is left to premature malice (" malitia supplet
aetatem"), sothat the limit, like the one from the seventh
to the fourteenth (or twelfth) year, is only proximate or
presumptive.22
Concerning infants29 the same term "censetur" is
employed, which involves supposition and not absolute
certainty; hence, even after the seventh year the use of
20 Cfr. Hciner, Kircktnrtcht, 23 Infantes dicuntur qui fori nt-
1897, I, 125 ff. The disjunction in sciuni, i. e., who are speechless; cfr.
the canon is only apparent, for by Cicero, D* Diinnattone, I, 53: cfr.
heresy, etc, one to ipso incurs 1. 18, Cod. Just., VI, 30; 16, •&., 1.
censure. 3» V, 60. Cfr. Canon 1254, fi 1 1
ai Itlackitone-Cooley, /. c, I, 463. Ulpian, Frag., tit. XI; Lachmaon,
22 Cfr. Canon 1254, fi 2. Caii Institution., 1841, p. 138 ff.
iO( ...ile
f^ ^ s ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 89 n
reason is only "presumed." Presumption must, of
course, always cede to proven facts. Hence, if a boy
or girl of seven is by medical attestation proved to be
destitute of reason, all acts performed by him or her
are null and void before the canon law. On the other
hand the age-limit of seven is not so strict that infants
could not share in the benefits which the law grants to
such as are "compotes sui" even if they have not yet
reached the seventh year, provided they actually enjoy
the use of reason. But this is only to be understood with
regard to favors. Thus, e. g., infants, even though they
enjoy the use of reason, are not obliged to fast if they
have not yet attained the seventh year.2*
Can. 89
Persona maior plenum habet suorum iurium exerci-
tium; minor in exercitio suorum iurium potestati
parentum vel tutorum obnoxia manet, iis exceptis in
quibus ius minores a patria potestate exemptos habet.
The Code makes no distinction between the sexes,
hence males and females are considered equally capable
of legal action after they have attained the age of twenty-
one.86 Minors enjoy habitually or radically the same
rights as those of age, but are hampered in their enjoy-
ment because they depend on parents or tutors. This
disability, as Blackstone well observes, is in fact a privi-
lege, because it prevents children from hurting themselves
by their own acts.28 The Code adopts this universal
principle by placing minors under the tutelage of parents
24 Cfr. can. 1254. married. Cfr. Blacksionc-Coolej", I,
25 The earlier Roman law con- 463.
ndered a woman of age only when 2fl Cf. Hciffenstuel. Ill, 38, n. 38;
Blackstone-Cooley, I, 464.
oogle
, ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
12 ECCLESIASTICAL PERSONS
and guardians, at least in certain cases. Thus we shall
see that minors, except in certain cases, are incapable of
electing or of being witnesses. They may be presented
for a benefice, but only through their tutors.27 They are
exempt from observing the law of tutelage in choosing
their vocation (clerical or religious state) as also in mar-
rying, provided, however, that they have reached the age
of puberty.
The new Code does not distinguish between tutor and
curator, although in Roman law this distinction was
made; a tutor was given to infants or impubores, whilst
a curator was assigned to puberes until they were of age.28
However, this distinction is juridically unimportant.
We may observe that, although the Code has ecclesias-
tical laws in view, the civil laws, too, in as far as they do
not clash with those of the Church in the matter of
tutelage or guardianship, must be observed and may be
followed in conscience ; for instance, in deeds and con-
tracts and in the alienation of land.20
domicile
The term domicilium is derived from dotnum colere,
to foster or inhabit the home. Hence it has reference
primarily to the place where one is born, Place (locus)
was taken by the Roman lawyers in a very narrow sense,
viz., as a place or parcel of a larger property, called
fundus, upon which one's affection was supposed to be
especially centered.80 Analogously, domicile, too, was
restricted to the birthplace or origin or legal status which
the citizen was supposed to possess in virtue of his belong-
*7 Blackstone-Cooley, 1,464. iignificatione; " Iocui est aoa fun-
2§ Cf. Dig., 16. 5; Cod. Just., V. dus. sod portio aliqua fundi.*'
42; V, 33- MCfr. Dig., 1. c; Cath. E*c„ V,
2u Cf. 1. 60, Dig. 50 de verborum 103.
>Ie
Original fro m
UNIVERSITY OF WISCONSIN
CANON 90 13
ing to a determined municipality or city. This was, we
say, supposed, because even if born elsewhere, a man was
a citizen of the municipality in which in the natural
course of events he would have been born. Hence, the
son shared the domicile of his father. Now let us see
what the Code establishes concerning domicile.
Can. 90
§ 1. Locus origin is filii, etiam neophyti, est ille in
quo, cum Rlius natus est, domicilium, aut, in defectu
domicilii, quasi-domicilium habebat pater vel, si filius
sit illegitimus aut postumus, mater.
§ 2. Si agatur de filio vagorum, locus originis est ip-
semet nativitatis locus ; si de exposito, est locus in quo
inventus fuerit.
s
The Roman Law is here again followed. The canon
applies it not only to children but also to neophytes, i. e.,
persons baptized as adults,81 although such were supposed
to have their legal domicile in the place of baptism.
Concerning illegitimate children, the old law is fol-
lowed entirely; but an innovation appears to be intro-
duced concerning posthumous children, i. e., such as are
born after the father's death. These are put on a level
with the illegitimate, which seems rather strange, be-
cause the civil law treats them as equals of legitimate
children and entitled to share in all their rights. Per-
haps this was assumed to make sure of the birthplace of
the child.82 Paragraph 2 restates the law as contained in
the Constitution " Cupientes " of Paul III.
Can. 91
Persona dicitur: in col a, in loco ubi domicilium,
Q
ai Cone. Nic.. c. a (c 1, Dirt. 48). 32 Cfr. Dio., 28. a; Cod. J'tst.. VI.
MPaul III, "Cupuntts," ai 19.
March, 1543; cfr. Aicbner, fi 6a.
jle
f^ ^ s iL» Original from
UNIVERSITY OF WISCONSIN
■
pi
|M
14 ECCLESIASTICAL PERSONS
advena,™ in loco ubi quasi-domicilium habet; pere-
grinus, si versetur extra domicilium et quasi-domici-
lium quod adhuc retinet; vagus, si nullibi domicilium
habeat vel quasi-domicilium.
Can. 92
§ z. Domicilium acquiritur commoratione in aliqua
paroecia aut quasi-paroecia, aut saltern in dioecesi,
vicariatu apostolico, praefectura apostolica ; quae com-
moratio vel coninuncta sit cum animo ibi perpetuo
manendi, si nihil inde avocet, vel sit protracta ad
decennium completum.
§ 2. Quasi-domicilium acquiritur commoratione uti
supra, quae vel coniuncta sit cum animo ibi manendi
saltern ad maiorem anni partem, si nihil inde avocet,
vel sit reapse protracta ad maiorem partem anni.
§ 3. Domicilium vel quasi-domicilium in paroecia vel
quasi-paroecia dicitur paroeciale; in dioecesi, vicari-
atu, praefectura, non autem in paroecia vel quasi-
paroecia, dioecesanum.
The definition of domicile is partly taken from the
Code of Justinian, where we read: "Doubtless every
incola has his domicile where he has established his
house-goods, the bulk of his chattels and property, and
which he does not intend to abandon unless called else-
where, which he leaves as traveller and to which he re-
turns after ceasing to travel."85 This is the famous
definition which, at least tacitly, had always been ad-
mitted by canonists and was enlarged after the twelfth
century by the notion of quasi-domicile.
83" Advena est quern graeci cyel., V, 103. Ttai» is one of the
AirotKav appellant," i. e., one ab*eut best articles in matteri of Canon
from home. (I. 239, Dig., 50, 16). Law contained in that valuable
84 L. 7, Cod. X, 40 de incolis. reference work.
Clr. Boudinhon in the Caih. En- 83 Boudinhon, L c.
oogle
% ,|rt Griginalfroni
UNIVERSITY OF WISCONSIN
CANON 92 15
The difference between a domicile and a quasi-domi-
cile 80 consists first and above all in the intention. If one
has the intention to reside, for instance, in a parish for-
ever, he contracts a domicile from the very first day of
his stay in the same. Of course, in the case of ordina-
tion, he would have to make oath to that effect. This
intention is supplied by actual residence for ten full
years.
Note that one and the same person may have two domi-
ciles, for instance, a summer and a winter residence; for
the intention in that case is equally directed to both,
and perhaps the time almost equally divided between
both."
Quasi-domicile is determined by the intention of abid-
ing in a place for the greater part of a year, which is gen-
erally taken to be at least six months.38 although in com-
mon estimation seven months is properly speaking the
greater part of a year. One's stay may be morally, but
it must not necessarily be physically, continuous. In
other words, a man may be absent from his domicile for a
considerable time, say, two or three months each year,
without losing his domicile, provided, of course, his in-
tention to stay there forever is not changed. But one
who has only a quasi-domicile may not be absent from it
for more than five months, because quasi-domicile re-
quires a stay of at least six months in a year in one and
the same place. But an absence of a few days each
month would not interrupt his quasi-domicile, as long
as he has not given up the intention of remaining in the
place at least six months.
What surprises us, to some extent at least, is the as-
MCfr. L 6, $2, Dig. 50, i, ad 9 Nov., 1898. Bened. XIV, " Pau-
municipalem. eta," March 19, 1758. Students and
■7 Cfr. decree of the Holy Office, soldieri have such a quasi-domicile.
gle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
16 ECCLESIASTICAL PERSONS
sumption of a diocesan domicile. This is a recent no-
tion, and it is not true to say that " many canonists/7 w
even after the " Ne temere," adopted it. Cardinal Gen-
nari promoted the theory which has now prevailed.
" The canon law," says Boudinhon w truly, u has never
recognized as domicile an unstable residence in different
parts of a diocese, without intent to establish oneself in
some particular parish." Now a Catholic of, e. g., the
diocese of Cheyenne, with its more than 100,000 square
miles, has a pretty wide range for his domicile. Let it be
confessed, however, that the " Ne temere" has turned
the tide in favor of a diocesan domicile ; for since the Or-
dinary is looked upon as equal to the parochus proprius,
it is logical to regard the whole diocese as a domicile.
Paragraph 3 tells us that the parochial is not to be
identified with the diocesan domicile, and consequently
they may be two distinct juridical concepts. The ques-
tion is therefore not quite useless : May one have a
parochial and a diocesan domicile at one and the same
time? The answer is rather difficult. One may move
about the diocese from parish to parish for the time
necessary to establish either a domicile or quasi-domicile,
and, being tired of that nomadic life, settle permanently
in one particular parish. As said above, from the first
day of his intention to make his permanent abode in one
parish a man acquires a domicile in that parish. But in
that case it is clear that he intentionally gives up his
domicile in another parish, because one intention excludes
the other.*0 However, it is not impossible to contract
two quasi-dom idles, one diocesan and the other parochial.
For by staying a little over six months in one parish, a
SA Cath. Euey., L c, p. 105. *0 Cfr. I. 19. Dig., 1, 5; I. 27, | J,
19 Am, Eccl. Rtvuw, ibid.; Catk. Dig., 50, 1; c. 4, C, 34, q. I, z.
Encyc, /. c„ p. 105.
§le
£ * ^ ^ ,l,» Original from
UNIVERSITY OF WISCONSIN
P
".
CANON 93 X7
man contracts a quasi-domicile, and since the intention
is supplied by this six months* stay, he is not compelled
to change his intention.
Can. 93
§ i. Uxor, a viro legitime non separata, necessario
rennet domicilium viri sui; aniens, domiciliurn cura-
tor is; minor, domicilium illius cuius potestati sub-
iicitur.
§ a. Minor infantia egressus potest quasi-domicilium
proprium obtinere ; item uxor a viro legitime non se-
parata, legitime autem separata etiam domicilium.
The juridical status of wives and minors under the new
Code is the same as under the Roman law.41 But there
is a difference concerning quasi-domicile, the Church law
granting to wives, though not legally separated, the right
to establish a quasi-domicile. This may be necessary
in case of desertion, or of lawfully protracted absence
from the husband; e. g.t if he be called to military serv-
ice. Concerning minors, the Roman law too acknowl-
edged the possibility of their acquiring a domicile/
«
Can. 94
§ x. Sive per domicilium sive per quasi-domicilium
suum quisque parochum et Ordinarium sortitur.
§ a. Proprius vagi parochus vel Ordinarius est paro-
chus vel Ordinarius loci in quo vagus actu commoratur.
§ 3. Tilorum quoque qui non habent nisi dioecesanum
domicilium vel quasi-domicilium parochus proprius est
parochus loci in quo actu commorantur.
«Cfr. I. 17, I 11, Dig., 50. 1, *d «8Cfr. Can. 1097.
municipalcm; Engcl, II, a, a. 12.
>Ic
/".,., ,L» Original from
UNIVERSITY OF WISCONSIN
18 ECCLESIASTICAL PERSONS
Can. o5
Domicilium et quasi-domicilium amittitur disces-
sione a loco cum animo non revertendi, salvo prae-
scripto can. 93.
These two canons complete the subject of domicile or
quasi-domicile, without mentioning the commoratio men-
silis which the " Ate temere " decree had introduced, and
which is adopted in the Code with regard to matri-
mony.43 But this is the only case in which a monthly
stay suffices for performing a legal act; in all other ju-
diciary matters the domicile or quasi-domicile decides
the forum competens with all its consequences, concern-
ing which the fourth book is to be consulted. Here we
will only mention the fact that the law makes no distinc-
tion between domicile and quasi-domicile so far as pastor
and Ordinary are concerned Hence the pastor of one's
domicile has no preponderance over the pastor of one's
quasi-domicile in the administration of the sacraments.
In case, therefore, one has both a domicile and a quasi-
domicile, it is he, not the pastor, who may decide from
whom he wishes to receive the sacraments.
Concerning vagi, the new Code embodies the juridical
norm of the Council of Trent,** which is practically fol-
lowed also by our civil law. As if to prove that dio-
cesan domicile is a vague notion, the Code compares those
who have only a diocesan domicile to vagi; their pastor
is the one in whose parish they happen to live at the
moment. This is import in regard to marriages, but in-
vestigation must be made as to their free status.
Why can. 95 exempts wives, minors, and the insane
a
48 Cfr. Can. 1097. 44 Cfr. Cone. Trid., Seas. 24, c
7. tie rcf. mat.
Q
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 96 19
from losing their domicile is evident from the juridical
assumption that they have no domicile of their own
choice,
It is not so easy to see why a wife lawfully separated
from her husband (by ecclesiastical and civil court) and
who can have a domicile of her own, can not lose it
by departing from it with the intention not to return.
■
BLOOD RELATIONSHIP AND AFFINITY
If a common dwelling place, e. g., a municipality or
city, is determined chiefly by origin and domicile, and
hence may be called a civic or ecclesiastical relation, there
is a still nearer connection possible, viz., by blood and af-
fection. Hence the Code now proceeds to the determina-
tion of those relationships, — consanguinity and affinity.
o
■
Can. 96
.
§ I. Consanguinitas computatur per lineas et gradus.
§ 2. In linea recta, tot sunt gradus quot generationes,
seu quot personae, stipite dempto.
§ 3. In linea obliqua, si tractus uterque sit aequalis,
tot sunt gradus quot generationes in uno tractu lineae:
si duo tractus sint inaequales, tot gradus quot ge-
nerationes in tractu longiore.
p
-
Can. 97
§ 1. Affinitas oritur ex matrimonio valido sive rato
tantum sive rato et consummate
§ 2. Viget inter virum dumtaxat et consanguineos
mulieris, itemque mulierem inter et viri consanguineos.
§3. Ita computatur ut qui sunt consanguinei viri,
iidem in eadem linea et gradu sint affines mulieris, et
vice versa.
jte
j , Original from
UNIVERSITY OF WISCONSIN
Q
20 ECCLESIASTICAL PERSONS
Little practical value would ensue here from a further
explanation, which must be deferred to the canons on
marriage. Note that affinity has shared the fate of
public honesty, in as far as also from a non-consum-
mated marriage relationship results, which formerly was
limited to matrimonium consummatum, or rather to car-
nal intercourse, licit or illicit
various rites
Can. 98
§ 1. Inter varios catholicos ritus ad ilium quis perti-
net, cuius caeremoniis baptizatus fuit, nisi forte bap-
tismus a ritus alieni ministro vel fraude collatus fuit,
vel ob gravem necessitatem, cum sacerdos proprii ritus
praesto esse non potuit, vel ex dispensatione apostolica,
cum facultas data fuit ut quis certo quodam ritu bap-
tizaretur, quin tamen eidem adscriptus maneret
§ 2. Clerici nullo modo inducere praesurnant sive
latinos ad orientalem, sive orientales ad latinum ritum
assumendum.
§ 3. Nemini licet sine venia Apostolicae Sedis ad
alium ritum transire, aut, post legitimum transitum,
ad pristinum reverti.
§ 4. Integrum est mulieri diversi ritus ad ritum viri,
in matrimonio ineundo vel eo durante, transire ; matri-
monio autem soluto, resumendi proprii ritus libera est
potestas, nisi iure particulari aliud cautum sit.
§ 5. Mos, quamvis diuturnus, sacrae Synaxis ritu
alieno suscipiendae non secumfert ritus mutationem.
a
c
o
What this canon says concerning the different rites,
of which mention was made in the first book (can. i),
§le
£ * ^ , -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 98 21
was determined in the Constitutions of Benedict XIV,4B
Pius IX," and Leo XIII, especially in the latter's
Apostolic Letter " De discipline Oricntalimn conservanda
et tuenda." 4I The solicitude of the Apostolic See for the
reunion of the Oriental dissidents and, at the same time,
for the preservation of their peculiar rites, has been amply
illustrated by Benedict XIV in his " Allatac."
The reason why baptism is the characteristic mark of
distinction between the different rites, must be sought
in the ceremonies employed by the Orientals in con-
ferring this sacrament," which is the gate to the Church.
The Oriental formula, though deprecatory rather than in-
dicative, is equivalent to the Latin: "Ego te baptizo."
The attending ceremonies, however, especially the con-
firmation connected with baptism, differ greatly. Hence
it is proper that the difference of ceremony in conferring
the sacrament of initiation should mark the distinction
between the rites at large.
If a Latin minister baptizes "by fraud," e. g., pre-
tending to be an Oriental minister, the child nevertheless
belongs to his father's rite, for the rite of the father
determines that of the child. A case of necessity, when
by reason of not having an Oriental minister a Latin
_
priest should have to baptize the child of an Oriental, is
mentioned by Benedict XIV." The last clause of para-
graph 1 of our canon is an amplification of the case cited
in Leo's " Orientolium," where mention 60 is made of one
«"£&! pastoratti," May 26, 47" Oriintalium," Nov. 30, 1894
1743; " D una tidal am," Dec 24, (Leonis XIII AUocutionex. £/>«-
'743! " Alto a*," Feb. ao, 1755 tola*, Constitution**; ed. Dewrlee,
{Bull. Btntd., ed. Pitt, 1845. I, "898, v, 303 ff.).
19; ff; 328 ff; 349 ff. 48 Cf. Benedict XIV, " Elsi fas-
*•" Im suf-rema." Juk. 6, 1848; toratU," | II (i. C„ p. 199).
" Romani Pontificts," Jan. 6, 1862; 40 " Dtmondatam," | 18 (/. c, p.
" Anuntusimus," Apr. 8, 1863 {Coll. jm).
Lac, II, 484 ff.). 00 No. XI (/. c, p. 308).
r Google
k ,1,., ■ Original fro ni
UNIVERSITY OF WISCONSIN
ECCLESIASTICAL PERSONS
converted to the unity of faith under the condition of
embracing the Latin rite. Such a one is not bound to
remain a Latin forever, but may return to his native (of
course Catholic) Oriental rite.81
in
Paragraph 2 prohibits proselytizing, without, how-
ever, mentioning the penalty of suspension inflicted in
" Oricntalium " M and " Demandatam." Paragraph 3 is
a modification of Leo's Constitution which permitted a
return to the former rite if the Apostolic See had been
asked — Apostolica Sede exorata.
Paragraph 4 is taken almost verbally from Leo's Con-
stitution, with the exception of the clause, lt unless other-
wise provided by particular law." Under this clause a
provincial council might issue regulations contrary to
this canon.
As to the last paragraph, the respective passage in
" Orientalium" is somewhat wider: "The faithful are
at liberty to communicate in either rite, not only in places
where there are no churches or priests of their own rite,
but also where their places of worship are too distant
to be conveniently frequented. But they must not on
that account be supposed to have changed their rite, but
remain in all other offices subject to their own pastor." M
Since this canon offers us an opportunity which, as
far as we are aware, does not recur in the whole Code,
it may not be amiss to complete the subject from the
Constitution of Leo XIII. Religious who conduct schools
frequented by members of the Oriental rite, should em-
ploy a priest of that rite for the respective functions.
Every Oriental who lives outside the territory of his
Patriarch is under the care of the Latin priest, but re-
st lb., n. I (p. 306 ff.). Neither 62 L. c, n. II (p. 307).
could wc discover thia penalty in 63 lb., n. Ill, IV, IX, XII, ('. c,
the penal code. p. 307 if- J.
Q
jle
£ * ^ ^ %\s* Original fro ni
UNIVERSITY OF WISCONSIN
p
CANON 99 23
mains subject to his own rite, so that nothing is changed
in his relation to the Oriental rite. Matrimonial and
other ecclesiastical causes appealed to the Apostolic Dele-
gate must be submitted to the S. C. pro Ecclesia Orien-
tals These general rules also hold good for the Orien-
tals in this country.
MORAL OR JURIDICAL PERSONS
s
Can. 99
In Ecclesia, praeter personas physicas, sunt etiam
personae morales, publica auctoritate constitutae, quae
distinguuntur in personas morales collegiales et non
collegiales, ut ecclesiae, Seminaria, beneficia, etc.
(For can. 100, see p. 3, supra.)
Can. ioi
§ 1. Circa actus personarum moralium collegialium :
i.° Nisi aliud expresse iure communi aut particulari
statutum fuerit, id vim iuris habet, quod, demptis suf-
fragiis nullis, placuerit parti absolute maiori eorum qui
suffragium ferunt, aut, post duo inefncacia scrutinia,
parti relative maiori in tertio scrutinio ; quod si suff ra-
gia aequalia fuerinr, post tertium scrutinium praeses
suo voto paritatem dirimat aut, si agatur de electioni-
bus et praeses suo voto paritatem dirimere nolit, elec-
tus habeatur senior ordine vel prima professione vel
aetate;
a.° Quod autem omnes, uti singulos, tangit, ab omni-
bus probari debet.
§ a. Si de actibus personarum moralium non colle-
gialium agatur, serventur particularia statuta ac
normac iuris communis, quae easdem personas respi-
ciunt.
ioi ...ile
(^ ^ s ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
N
■
24 ECCLESIASTICAL PERSONS
Can. 102
§ 1. Persona moralis, natura sua, perpetua est; ex-
stinguitur tamen si a legitima auctoritate supprimatur,
vel si per centum annorum spatium esse desierit.
§ 2. Si vel unum ex personae moralis collegialis
membris supersit, ius omnium in illud recidit.
What has been said, supra, pp. 1 sqq., about moral
persons may now be detailed. Canon 99 draws a dis-
tinction between corporate and non-corporate bodies.
What is required for the former has been stated above.
Properly speaking, non-corporate bodies cannot be called
juridical persons at all. For such the term "moral en-
tities" (the Italians style all corporations " enti morali")
would be more suitable. But it was precisely the Italian
government, or rather some extremely radical jurists,
who, in order more readily to suppress ecclesiastical cor-
porations, denied the existence of such moral entities.5*
On the other hand, civil governments, especially in Eu-
rope, have acknowledged the legal title of corporations
even to parishes.65 Here a parish is not considered a cor-
poration, because it lacks an end sufficiently distinct from
others, — all parishes having one and the same end, the
care of souls, — and because of the want of a subject
proper as bearer of corporate rights. The parish as
such is not the bearer of distinctly ecclesiastical rights,
as it is composed of lay people who enjoy rights only as
far as they are members of the Church, Hence the cor-
5* Thus Scaduto and Gionri. L* 55 Cf. Lampert. Die reckte Stel-
Dottrina delle Person* Gittridicht, lung der Landeskirchen in den
Firenxe 1897. But what about Schwtiser. Kantontn, 1908; Id.,
Italia Unita? Is it no ente or Doc. Stifvngen, 101s; Schul-System,
corpo morale/ p. 25a.
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
CANON 102 25
porate rights would be vested in the pastor, who, how-
ever, cannot form a corporation, since to constitute a
corporation requires at least three physioal members.
English law perceived the difficulty and assumed, very
logically, a corporation sole. Our States, after some
changes and development, assume either a corporation
aggregate, or the trustee corporation, or the modern form
of the corporation sole.66
As stated under can. 100, § 3, such corporations have
an end subordinate to that of the universal Church, and
depend for their legal existence on the supreme author-
ity, and hence share the lot of minors placed under
guardians. It follows that their corporate acts are sub-
ject to common law and to those particular laws which
conform to the former, or if they do not conform, are at
least approved of by higher authority. For just as the
State requires conformity to its own common laws when
approving a corporation, so also the Church approves
only such corporations as correspond with her general
end and are conducive thereunto. Hence can. 101 es-
tablishes some general rules to be observed at meetings
held to decide a matter proposed to the vote of the mem-
bers of a corporate body. Under i°, the law speaks
only of such acts as are voted on by the members present
("qui suffragium ferunt"). Now it is generally pre-
sumed that two-thirds of the members present form a
quorum capable of making a decision.07 Therefore the
general law considers the absent members as not claim-
ing their right of voting, and as having no right to remon-
strate against a resolution adopted by the majority. We
say, the common law treats absent members thus. If the
particular statutes of the corporation contain a contrary
B« Cfr. ZcIImann, /. c, p. 63. ST Boubt, Dt Copitulu, p. 18 1.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
26 ECCLESIASTICAL PERSONS
•
clause, vis., that the votes must be counted according to
the total number of members, either present or absent,
this statute must be followed. If no such statute exists,
votes of the members present only are counted.
Number 2 provides that the invalid votes (detnptis suf-
fragiis nullis) must be subtracted from the sum-total of
the voters present.
A suffrage is null and void, according to the Code,58
if extorted, or not given secretly, — if secrecy be required
by the particular statutes, in matters not touching election,
— or if given conditionally. Such votes, therefore, must
be thrown out.
An absolute majority is one vote more than half of
those given; for instance, if there are thirteen who cast
a vote for or against selling a certain property, and seven
are for, while six are against selling, the resolution
carries in favor of selling. A relative majority can take
place only when more than two resolutions or more than
two candidates are at issue. Thus, in the case just men-
tioned, there may be question not only of selling or not
selling, but also of renting or borrowing money. If four
of twelve members present would vote for selling, and
three against, and five for taking up money, the last vote
would carry, but only in the third scrutiny, not in the
first and second, because for these two an absolute ma-
jority is required, and hence seven votes out of twelve
would have to be cast for taking up money if it should
carry in the first or second ballot.08
The last means of deciding an even vote is the presi-
dent or presiding officer, who may give his vote in
08 Can. i6g. These rules affect 184. This rule was formerly re-
Ihe moral and juridical liberty of jected by weighty canoeists; but it
the voters. la very reasonable in that it prevents
oa Cfr. Bouix, Dt CapitulU, p. waste of time.
oogl
e
Original from
UNIVERSITY OF WISCONSIN
CANON 102 27
favor of either side. But there may be cases, especially
in elections, when the president does not wish to cast the
deciding vote. If two or three candidates come out
with an even number of votes in three scrutinies, and the
presiding officer refuses to decide in favor of any one,
how is the election to be settled ? First the rank and sen-
-
iority of sacred orders must be considered, and therefore
a priest must be preferred to a deacon, and a deacon to
a subdeacon (minor orders are not taken into considera-
tion). If in a religious community two priests are
elected who were ordained on the same day, the date of
their simple profession decides the preference, and if by
a fanciful hypothesis both should have been ordained and
made their profession on the same day,85 the priority of
age must decide who is elected; because then the rule
would hold : " Prior in tempore, potior in iure" as will
be seen under the canon governing precedence.
No. 2 of § 1 (canon 101) apparently sets up a contra-
dictory rule by ordaining that " what touches all, as indi-
viduals, must be approved by all," in accordance with the
regula juris 29 in 6° : ™ Quod omnes tangit, debet ab
omnibus approbari/' n But our text by way of explana-
tion adds : * ut singulos" These two words clear up the
apparent contradiction. For in every corporation there
are rights which touch the corporation as such (e. g., cor-
poration property) and rights which are intrinsically in-
herent in each member as such. Concerning the latter
class the law requires that the approval of all must be
given, if rights are to be given up, or changed, or retained.
An example of the former would be, according to our
flo Reg. S. Betted., c. 58; cfr. 1. acrvitut. pracd. rust; RcifFcnituel,
S, Cod. Just., v, 59 de auctoritate t. ult, Reg. 29.
praeitanda; !. 11 Dig. 8, 3, Dc *i Reiffenstuel, Con. in Reg.
Iwris, 39, si. 7 :T.
,1,., Original from
UNIVERSITY OF WISCONSIN
>gk
-'
38 ECCLESIASTICAL PERSONS
opinion, a change of statutes, of the latter, a change of
election and compromise.*2
As to paragraph 2, nothing need be added except that
the acts mentioned therein are not properly speaking cor-
porative acts or enactments, but mere rules set forth by
proper authority.
That a moral person is perpetual, as can. 102 states, fol-
lows from the nature of its organization and end, which
is enduring. That the legitimate authority which has
sanctioned its existence, can also dissolve a corporation,
needs no proof.
§ 2 enacts that corporate rights devolve on the surviv-
ing member. This follows from the generally accepted
rule : " Collegium remanet in uno" Although at least
three persons are required for constituting a corporation,
yet by way of devolution the corporate rights would,
in case of death or defection of all but one member,
devolve on that member, who would become the bearer
of all those rights, though he could not exercise all of
them, for instance, he could not elect himself.6*
ETHICAL QUALITIES OF LEGAL ACTS (VIS, METUS,
ERROR)
If we speak here of moral qualities, we do not mean
to deny the juridical character inherent in these qualities.
It is evident that violence, fear, and error, of which the
two following canons treat, affect chiefly the intrinsic
or ethical side of corporate acts, and only indirectly their
juridical nature. This is quite obvious, for it is impos-
sible to sever morality from right or law.
02 Cfr. Bouix, / v Capitutu, p. Cfr. can. i6j (on election) ; can.
184, p. 601; Aichncr, I. c, | 82, 1. 172 (on compromise).
08 Cfr. Buuut (as under note 62).
}}C
Original from
UNIVERSITY OF WISCONSIN
-
■
9
CANON 103 29
Can. 103
§ x. Actus, quos persona sive physica sive moralis
ponit ex vi extrinseca, cui resist! non possit, pro in-
f ectis habentur.
§ 2. Actus positi ex metu gravi et iniuste incusso vel
ex dolo, valent, nisi aliud iure caveatur ; sed possunt ad
norm am can. 1684-1689 per iudicis sententiam rescindi,
sive ad petitionem partis laesae sive ex officio.
Can. 104
Error actum irritum reddit, si versetur circa id quod
constituit substantiam actus vel recidat in conditionem
sine qua non; secus actus valet, nisi aliud iure cavea-
tur ; sed in contractions error locum dare potest actioni
rescissoriae ad normam iuris.
These are general norms, universally accepted by can-
onists, except the second paragraph of Can. 103 in its
broad sense. Civil law is more lenient with regard to
accidental errors.
Violence, or physical force, whether justly or unjustly
exercised, if irresistible, of necessity excludes free con-
sent of the will. Wherefore an act posited — we cannot
well say performed — under such influence, can neither
be imputed nor does it entail a moral or juridical obliga-
tion. Note, however, the clause, " which cannot be re-
sisted." For if the assailant can be resisted, at least by
using equal violence, he should be resisted ; violence must
be warded off by violence, unless perhaps reverence or
respect would dictate otherwise. Thus a child may not
use violence against his parents, even though they should
physically try to force him into a state of life distaste-
ful to him. Violence is less practicable in case of a cor-
>ogle
f** ^ v ,|,, Original fro m
UNIVERSITY OF WISCONSIN
3o ECCLESIASTICAL PERSONS
poration, because a crowd is less liable to be attacked.
Yet even a body of men, for instance, electors, may be
subjected to violence. The people of Viterbo gave actual
proof of this.8*
Physical violence, thus brought to bear on the mind
in order to force a man to do something against his will
creates no voluntarium, and therefore produces no hu-
man act.05 Notice, however, that this violence must affect
the person himself; violence done to parents, near rela-
tives, or friends, is not the violence of which § I of our
canon speaks, but is rather fear or alarm, which the Code
considers next.
Fear is an emotion excited by threatening evil or im-
pending pain, accompanied by a desire to escape or avoid
it All violence, as the Pandects say,00 is fear or causes
fear; but metus does not always include physical force.
The Jaw then goes on to determine the nature of fear.
Fear, to render an act involuntary, must be grievous,
vehement, and at the same time unjustly threatened.
Concerning the first condition authors generally describe
fear as grievous when it is such as may befall a man of
robust body and mind, not a nervous or weak-minded
person. Wherefore, they add, two things are required to
constitute grievous or vehement fear, vis., that the threat-
ened evil exists objectively, not merely in the imagination,
and that the evil threatened be important and weighty,
e. g„ death, mutilation, imprisonment, loss or confiscation
of property, defloration,07 and, we might add, the loss of
o* The incident of Viterbo, 1370- causa fiunt; Dig. 4, 2; Cod. Just.,
71. was instrumental in framing 2, 19.
the decretal of Gregory X on papal oa L. 1, Dig. 4, 2: " Metvs in-
elections, c 3, 6", 1, 6. stent-,: vet futuri ptriculi causo mtn-
•5 S". Tk. MI. q. 6, o. 5; cfr. c. 4. *« Iripidatio."
X, I, 40 de his quae vi mtlusvt fl? Keiffenstuel, I, 40, n. 28.
§le
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 104 31
reputation for a person in good standing, or of social po-
sition and remunerative occupation.
The other condition is that fear be unjustly threatened
or inflicted. Unjust would be a fear excited by private
authority, or by one not entitled to threaten an evil in
order to obtain consent. We should likewise consider a
fear unjustly threatened if there were no proportion be-
tween the greatness of the evil threatened and the reason
for which it is threatened. Thus a judge might un-
justly threaten one to force him to marry a certain person
for futile reasons, or threaten one so that he would give
up a position because of political disagreement.
This remark leads to another observation made by can-
onists. The connection between the evil threatened and
the special act which is to be extorted by the threat, is
expressed by the disjunctive formula: either — or; either
death or marriage ; — in other words, the evil must be
threatened ad hoc, for that very purpose, and no other."
Lastly, as the term "incussus" seems to imply, the fear
must come from outside, ab extrinseco, or, as it is also
termed, from a causa libera, i. e., an agency existing
outside the one who suffers fear, and not from a natural
phenomenon such as lightning or shipwreck.
Now an act performed under the influence of fear, thus
described, or inspired by fear, is not necessarily invalid,
because it may still be truly voluntary, though, under a
certain aspect (secundum quid), it is involuntary. For
there is in the intellect the knowledge of an end, and that
end is wished for, along with what is chosen as a neces-
sary means to it. In this respect, such actions are, in
themselves, truly and properly called voluntary. On the
other hand, these same acts are performed against the in-
-
<
«8 Ci. S. Tk, I-II, q. 5, a. 6; Hill, Ethics, 8 ed., pp. 51 ff.
Q
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
32 ECCLESIASTICAL PERSONS
clination of the will and with reluctance; and although the
person cannot say, " I will not," yet he could truly say,
" I would I could not." Hence, actions performed under
the influence of fear are in a certain respect involuntary fl*
and, according to our Code, give the victim the right to
have the act rescinded. However, on account of possible
hallucinations, and for the sake of the public welfare, a
legal procedure must be followed. The first step will be
to gather proofs in the form of affidavits; the next, to
secure a lawyer, unless the person is able to act as his
own lawyer. Then the judge of the defendant, or in
other words, the competent judge70 — actor sequitur fo-
rum rei — must be sought
A judge may of his own accord proceed against one
who has threatened another unjustly, for such conduct
is detrimental to the public welfare. As soon as the
judge is morally convinced that evil has been unjustly
threatened, he may cite the injured party, even though
the latter would wish to escape a trial. It is left to the
prudent and conscientious judgment of the judge to pro-
ceed further, unless the validity of a marriage is at stake.
The same legal benefit is granted to one who suffers
from another's deceit (dolus), which is called a conniv-
ance to cheat or deceive another, who thereby suffers
injury. This occurs especially in matters of contract,
wherein the law takes it for granted that every transac-
tion is fair and honest.71 Whether deceit is committed
by hiding the truth (calliditas) or telling a lie (fallacia),
or by some machination employing both words and deeds,
is immaterial. But it is important to ascertain whether
flo This will be farther explained Ti Blackstonc-Cooley, I. c, III,
in Book IV; cfr. cc. 1684-1680. 164.
TOCfr. X, II, 14 dt dolo; Dig. T2 Rciffenstud, II, 14. n-
IV, 3 <*# Mo ™*'o.
ogle
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 104 33
the deceit practiced is the cause of one's acting in such
a way; for if the dolus is only concomitant, and not the
impulsive cause of the act, the benefit of law (writ of
deceit) cannot be invoked.
Deceit generally causes error, and therefore the follow-
ing canon speaks of error. Error is a state of mind in
which one approves falsehood for truth. It differs from
ignorance, which is a lack of due knowledge. The Code
distinguishes between a mistake regarding the substance
of a thing, and one which concerns a quality as a condition
sine qua non, The former would be the case if one
bought brass for gold, a pearl of glass for a jewel, or if
he married Anna instead of Mary, whom he had intended
to marry.78 An essential or sine qua non condition (this
clause evidently refers to matrimonial law), would be a
quality inherent in a woman by which alone she is known
to the wooer, and on account of which alone he wishes
to marry her (for instance, she is the first-born daughter
of his friend). Such an essential condition might also
occur in buying a registered steer of a certain stock.
Now if the would-be groom or the buyer is in error or
deceived, no matter by whom, the marriage or purchase
is void, because the essential consent is wanting by rea-
son of a false object presented to which the intention was
not directed.
The circumstances which render an object less desira-
ble may, however, be purely accidental, as when the per-
son married is not as peaceful or as rich as pretended and
believed before marriage. Such accidental errors do
not render the act null and void, because consent, at least
in persons acting reasonably, is not directed exclusively
to such accidents.
ts Tbii may occur in the case of twins or other persons resembling each
other Tery cloiely.
ioogle
£ * ^ ^ ,l„ Original from
UNIVERSITY OF WISCONSIN
34 ECCLESIASTICAL PERSONS
But marriage is a peculiar affair, which shall be treated
more fully in its proper place. The Code says that in
matters of contract room is left for rescinding the act.
Here especially enters the writ of deceit, which is granted
also by the civil law.
It is then in the power of the plaintiff to approach the
judge either to obtain damages or to put in a claim for
annullment of the act performed under deceit, and the
judge will have to decide whether he is competent to give
a verdict in the case.7' That the procedure must be legal
is required by the public welfare, which demands equity
as well as order and justice.
consent or advice to be asked by the superior
Can. 105
Cum ius statuit Superiorem ad agendum indigere
consensu vel consilio aliquarum personarum:
i.° Si consensus exigatur, Superior contra earundem
votum invalide agit ; si consilium tantum, per verba, ex.
gr.: do consilio consul to rum, vel audita Capitulo,
parocho, etc., satis est ad valide agendum ut Superior
il las personas audiat ; quamvis au tern nulla obligatione
teneatur ad eorum votum, etsi concors, acccdcndi,
multum tamen, si plures audiendae sint personae, con-
cordibus earundem suffragiis deferat, nee ab eisdem,
sine praevalenti ratione, suo iudicio aestimanda, disce-
dat;
2.0 Si requiratur consensus vel consilium non unius
tantum vel alterius personae, sed plurium simul, eae
personae legitime convocenturv salvo praescripto can.
162, § 4, et mentem suam manifestent; Superior autem
pro sua prudentia ac negotiorum gravitate potest eas
T« Cfr. cc. 1679-1683, which correspond to the actio erroris.
* I Inr»al*> Original from
,00cVC UNIVERSITY OF WISCONSIN
CANON 105 35
St
adigcrc ad iusiurandum dc sccrcto scrvando praestan-
dura;
3.0 Onirics dc consensu vel consilio rcquisiti debcnt
ea qua par est reverentia, fide ac sinceritate sentcntiam
suam aperire.
The general rule, says Engel,75 is that every important
matter should be treated by the superior (prelate) either
with the consent or with the advice of his chapter.
Such advice, though it does not bind the superior, is
not to be looked upon as superfluous. For by counsel,
observes the same author, hasty and foolish acts are
prevented, and several pairs of eyes see more than one.
This rule, of course, applies especially to cathedral and
religious chapters, where the bonum privatum must cede
to the bonum commune. Which cases require consent
or advice is stated in the law. We merely observe that,
unless expressly provided in the Code, advice only, not
consent must be asked.70
The next number treats of convocation required in case
several persons must be asked at the same time. This
is the case with our diocesan consultors, who, therefore,
must be called together for a meeting whenever their con-
sent or counsel is demanded by law. For though our con-
sultors do not as yet, like the diocesan chapter, form an
ecclesiastical corporation, they take the place of such in
the government of the diocese, and. besides, constitute
among themselves,77 a " coetus," which is the meaning
of " plures sintuIJ'
Of course, if all the consultors should accidentally be
present, for instance, at a diocesan meeting or clerical
TB Cfr. ad X, III, t, 10, n. x, Se ■peaks only of advice, not consent.
ku qua* fivnt a praetatis tint con- TO Cfr. Can. 427.
mtu copltuli; Engel, III, 10, n. 1. T7 Cfr. Can. 162 | 4.
Rwg. S. Dentil., which, however.
*Ie
f^ ^ s ,1,., Original from
UNIVERSITY OF WISCONSIN
■
pi
36 ECCLESIASTICAL PERSONS
retreat or on some festive occasion,78 the bishop may
make use of that opportunity and consult them there and
then, but not in the presence of others, t. e., not in such a
way that others may hear the counsel and the consultors
thereby perhaps be compromised or hindered in their
free speech.
Whether a matter is of sufficient importance to require
secrecy, is left to the judgment of the superior.
PRECEDENCE
Precedence, first and above all, means priority in rank
or dignity, and this, in turn, is chiefly, though not exclu-
sively, based upon the authority or power one enjoys over
another. Hence the relation between superior and in-
ferior, between tnaioritas and obcdientia, as defined in
the Decretals (I, 33). Similarly, our Code establishes
jurisdiction as the primary rule of distinction.71*
Can. 106
Circa praecedentiam inter varias personas seu physi-
cas seu morales, serventur normae quae sequuntur,
sal vis normis specialibus quae suis in locis traduntur :
i.° Qui alius personam gerit, ex eadem obtinet prae-
cedentiam ; sed qui in Conciliis alliisque similibus con-
ventibus procuratorio nomine intersunt, sedent post
illos eiusdem gradus qui intersunt nomine proprio ;
2.0 Cui est auctoritas in personas sive physicas sive
morales, eidem ius est praecedentiae supra illas;
3.0 Inter diversas personas ecclesiasticas quarum
nulla habeat in alias auctoritatem : qui ad gradum po-
tiorem pertinent, praecedunt eis qui sunt inferioris
TB Cfr. Can. 162 I 4. K.-K., I, 431 f.
to Cfr. c. 15, X, I, 33 [ t. Scbcrer,
>Ic
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 106 37
gradus; inter eiusdem gradus personas sed non eius-
dem ordinis, qui altiorem ordinem tenet, praecedit iis
qui in inferiore sunt positi ; si denique ad eundem gra-
dum pertineant eundemque ordinem habeant, praecedit
qui prius est promo tus ad gradum; si eodem tempore
promoti sint, senior ordinatione, nisi iunior ordinatus
f uerit a Romano Pontifice ; et si eodem tempore ordi-
nem receperint, senior aetate;
4-° In praecedentia diversitas ritus non attenditur;
5-° Inter varias personas morales eiusdem speciei et
gradus, ilia praecedit quae est in pacifica quasi-posses-
sione praecedentiae et, si de hoc non constet, quae prius
in loco, ubi quaestio oritur, instituta est ; inter sodales
vero alicuius collegii, tus praecedentiae determinetur
ex propriis legitimis constitutionibus ; secus ex legit ima
consuetud inc ; qua deficiente, ex praescripto iuris com-
munis;
6- Loci Ordinarii est in sua dioecesi statuere prae-
cedentias inter suos subditos, ratione habita princi-
pioriun iuris communis, legitimarum dioecesis consue-
tudinum et munerum ipsis commissorum ; et omnes de
praecedentia controversias, etiarn inter excmptos, qua-
tenus ii collegialiter cum aliis procedant, componere in
casibus urgentioribus, remota ornni appellations in
suspensivo, sed sine praeiudicio iuris uniuscuiusque ;
7.0 Circa personas quae ad Domurn pontificalem per-
tinent, praecedentia moderanda est secundum pecu-
liaria privilegia, regulas et traditiones eiusdem ponti-
ficiae Domus.
This question of precedence may come up at a future
council just as it did at the Vatican Council,80 where prece-
80 Cf. Granderath-Kirch. Gtxch. da Vatik. Komils, 1903. I, p. 391 ff.
oogle
v ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
38 ECCLESIASTICAL PERSONS
dence was established as follows: (i) Cardinals accord-
ing to their titles, episcopal, presbyterial, diaconal; (2)
Patriarchs; (3) Primates, but only by a special grant of
the Pope; (4) Archbishops according to the time of
their promotion; (5) Bishops in the same way; (6)
Superiors general of religious orders with solemn vows."
Procurators were excluded from both a consultative and
a decisive vote, just as they are now under the new
Code.82 To plenary councils no procurators are admit-
ted, except coadjutors or auxiliary bishops," who, there-
fore, will have to take their seats after the ordinaries
who are personally present. Since the general rule is
that precedence must be determined according to the rank
of the person represented, an apostolic legate precedes
all others, provided he be a cardinal.
This is the principle of distinction regarding rank
or precedence. However, it may happen that many are
present of equal authority, wherefore, to avoid unpleas-
ant contention, the following rules are to be enforced :
It may happen, not only in conciliar meetings, but also
on any festal occasion, that this " crux magistrorum cere-
moniarum" (the question of precedence) may arise.
Our canon furnishes the solution. We will add only a
few remarks. Cardinals always have precedence over all
other dignitaries except an apostolic legate. They rank
according as they are Cardinal bishops, priests, or dea-
cons, and are followed by the Patriarchs, the residential
archbishops and bishops,84 titular archbishops and titular
bishops, who have no "authority," properly speaking.
si Concerning the Council of diocesan bishop precedes even arch-
Trcnt, to which procurator* of the bishops — with the exception of his
German bishops were admitted, ib. Metropolitan — and all other bish-
p. 108 ff.;CoKc*/ium Trid., 1901, I, ops. Can. 347.
*o'» 349, 368 etc.; can. 224, | a. 84 This rule was observed at the
*3 Cfr. can. j8j. Vatican Council; GranderMh-Kirch,
•• But in his own territory the I. c, I, p. 39a.
gle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 106 39
Among those of equal rank, e. g., bishops, the one who
has been promoted earlier to the episcopal rank precedes
the one whose promotion occurred later. Notice the
term promotion, for it means the publication of the bish-
op's name in Consistory, not the date of his election or
consecration."
The next step in deciding the question of precedence
between two prelates of equal rank, order, and promo-
tion, is to ascertain the date of their ordination. Now
ordination, according to our Code,88 includes the con-
ferring of the tonsure, wherefore the date of clerical
initiation decides seniority. One case, however, is ex-
cepted, vis., if one is ordained by the Roman Pontiff.87
But the term " Roman Pontiff" is here to be interpreted
strictly, wherefore ordination by the Cardinal Vicar of
Rome or another Cardinal does not involve that privilege.
A special delegation, however, given by the Pope to or-
dain a cleric in his name would have the same effect as
ordination performed by the Pontiff himself.88 Finally
the last hypothesis is clear enough, vis., if two were equal
in rank, order, promotion, time of ordination, then the
natural age would have to decide.
Hence Latin and Oriental bishops or priests are equal,
ceteris paribus.
The rule of precedence among religious is settled in the
section on religious, can. 491, but since this bone of con-
tention has always troubled the house of God, as we
know from innumerable decisions of the S. C. EE. et
RR., several pontifical Constitutions M have been issued
•8 Can. 350. 88 Pius V, " Divin*," Aug. 17,
•flCan. 950; cfr. c ia, X, I, 11 1567; Greg. XIII, " Expoidt," July
de temp, ord.; Bened. XIV, "In as, 1583. Cfr. the Glou ad c x,
postretno," Oct. 20, 1756 {Bull., 6\ III, 13; c. m. 6", r, 6; Santi-
Prati, t. Ill, 388 ff.). Leitner, /. c, I, 33, n. a (vol. I, p.
•*,fIn portremo," f 19 <p. 398). 380).
adbyC \\^
j ^ Original from
UNIVERSITY OF WISCONSIN
40 ECCLESIASTICAL PERSONS
St
on this matter, which we shall quote in their proper place.
The first clause of n. 5 is taken from " Exposcit"
of Gregory XIII, July 25, 1583. There the question was
settled concerning the Mendicant Orders in the way now
prescribed for all. If a Mendicant Order could prove
its quasi-possession,88 that is, undisturbed and uncon-
tested precedence for a time at least sufficient for pre-
scription, it was supposed to have a just title thereto.
If no such proof could be furnished, the historical fact
of being founded in a place earlier than a competitor was
to settle the question. This is still the rule concerning
corporations of the same kind. It also applies to cor-
porations of the same rank. A cathedral is of higher
rank than a collegiate chapter, a distinguished chapter
higher than a non-distinguished.M A clerical order en-
joys precedence over a non-clerical one, etc.*1 Corpora-
tions which have their own constitutions must consult
these, or else custom and the common law, especially the
present paragraph, and others treating the question of
precedence.
This latter ruling is very wise because apt to maintain
order and decorum on solemn occasions, without preju-
dice to the rights of religious.
During procession, the decision of the Ordinary must
be obeyed, and only after the function is over, have those
who think they are wronged a right to defend their
claim, first before the bishop, and then before the S. C.
Relig.
» The rules under § 7, concerning the Papal Household
si It ii called quasi-possession 01 If men strike each other with
because of the nature of right, the staffs of their banners and
which fs not corporeal ; vidt Reif* crosses — and we read ot such in-
fanstud. II. la, n. U3 ff. stances in genuine records — the
vo Cfr. can. 391, | 2; can. 408; decorum is gone.
can. 491.
c
iyi
■-:
Go >gle
J ^ Original from
UNIVERSITY OF WISCONSIN
CANON 107 41
at
or Famiglia Pontificia are contained in the Caeremoniale
of the papal palace and do not enter into our present pur-
pose. Precedence, like etiquette, belongs to every well
regulated government, and not even a thorough-going
democrat has a right to ridicule it, for it is based on
human nature and the dictates of right reason.
■
Can. 107
Ex divina institutione sunt in Ecclesia clerici a J aids
distincti, licet non omnes clerici sint divinae institu-
tionis ; utriquc autem possunt esse religiosL
After treating generally of the members of the Church
who are such by baptism, and of the different physical
and moral persons who may exist within the Church,
the Code draws the line of demarcation between clergy
and laity. This distinction, as pointed out above, is
based upon the nature of the Church, which, because of
its divine and therefore legal and necessary existence,
has a constitution of its own, neither made nor to be
changed by men, at least in its essential features. One
essential feature of this constitution is the hierarchy in
the broad sense, involving a distinction between clergy
and laity.
The term clergy is derived from the Greek i&jjpov,
(Latin sors)t a lot." According to St. Jerome, clerics
are so called because they are called into the lot of the
Lord, or because the Lord is their portion, or because they
are chosen by lot. Therefore every clergyman may in a
particular sense be called a servant of God. That the
e'ergy, distinguished into its hierarchic orders, has grad-
ually grown into a minutely arranged system, is owing to
>■: Or. c, 5, C. is, q, 1 : -. -, ib. {inctrli tuctorit, sate. XI).
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
4^ ECCLESIASTICAL PERSONS
circumstances of necessity and natural development, ex-
cepting, of course, the divinely ordained distinction be-
tween bishops, priests, and deacons.
The word laity is derived from Xaot (plcbs), people,
in which sense it occurs in the epistle of St Clement to
the Corinthians.98 Hence this organisation or distinction
can claim divine institution.
u C. 40; cf. Bruders- Villa, La Kirch* in Ehrhard'i Kirch. For-
Costitusione delta Chiesa, 1906; schungen, 1904, XV.
German: Di* Vtrfassung drr
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
■
".
PART I
THE CLERGY
SECTION I
THE CLERGY IN GENERAL l
Can. 108
§ i. Qui divinis ministeriis per primam saltern ton-
surarn mancipati sunt, clerici dicuntur.
§ 2. Non sunt omnes in eodem gradu, sed inter eos
sacra hierarchia est in qua alii aliis subordinantur.
§ 3. Ex divina institutione sacra hierarchia ratione
ordinis constat Episcopis, presbyteris et ministris ; ra-
tione iurisdictionis, pontificatu supremo et episcopatu
subordinato; ex Ecclesiae autem institutione alii quo-
quc gradus accessere.
In connection with the custom of cutting the hair of
those who were to be servants (mancipati, serfs, slaves)
of the Church, tonsure occurs as early as the fifth cen-
tury.1 It may be defined as a rite whereby a Christian
(Catholic) is constituted in the clerical state and made
fit to receive minor orders.2 Hence tonsure 8 can be con-
l Cf. Constant, /. c.t p. 73; Mar- Cod. Just., XI, 63.
tine, Dg Antiquis Eecl. Ritibus, a Cfr. Ponl. Rom., De Clerico
I. i, c 8, art. 7 (ed. Antwerp, 1736, Facundo; Lammer, K.-R., p. 81.
t. II, 40 ff.); Cone. Agath., an. a Cfr. Cone. Trid., Sew. aj, c. 4,
506, c 19. Mancipio were acrfa V* Ref. — The difference between
or a higher grade of slaves; cfr. the Scottish and Roman toniure
43
jle
£ * ^ .. *|,* Original from
UNIVERSITY OF WISCONSIN
44 ECCLESIASTICAL PERSONS
ferred only on such as are validly baptized and confirmed
and ask for it of their own free will and without deceit.
Tonsure is not enumerated among the minor orders, nor
is it considered an order at all.4
Those, then, who have received the tonsure are called
clerics — i. e., men bound to the sacred ministry. As
that ministry has various functions, necessitating the ex-
ercise of various powers, which are distributed by de-
grees, it follows that there must be a sacred authority
ruling over the whole ministry. This sacred authority is
the hierarchy, an organization by virtue of which clerics
are subordinate to one another and enjoy ecclesiastical
power in various degrees.
Three orders are of divine origin: the episcopate, the
priesthood, and the ministry B or diaconate, taking it in the
sense of the Church. The words episcopi, presbyteri,
and dtaconi occur in the pastoral letters of St. Paul as
well as in the Acts of the Apostles. But we do not meet
with a fixed terminology until St. Ignatius of Antioch,
and even after that there is a certain vagueness in the use
of sacerdotes and episcopi, the terms being often em-
ployed synonymously.8 This fact, however, does not
prove that the functions or powers of the two orders were
considered to be identical.
Besides these three, other minor ranks were intro-
duced at an early date, owing to the manifold needs of
the Church and the increased occupations of the clergy.
From the beginning of the second to the middle of the
third century there was an almost continual develop-
eauted quite a controversy in 14, n. 43 tf. ; cf. v. Scherer, I, 313.
France and England up to the be- S Cone. Trid., Sew. 2, 3, can.
ginning of the Vlllth century. 6, D* sacr. ord.
• This is now jententia com- a Cf. Brudcrs, Die Vtrfossnng
munis, although Faynani held the der Kircke, passim (we are using
opposite opinion; ad c. n, X, I, the Italian translation by Villa).
jle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 108 45
ment of lower functions, some of which disappeared
later, but most of which have survived to our own day.
While the cantores, exccptores, and fossores are no
longer among the orders proper, the subdeacons (hypo-
diaconoi), the acolytes, exorcists, lectors, and janitors
(ostiarii) have retained their position as clerics. Since
the eleventh century/ subdeaconship has even entered the
ranks of the ordines maiores, while the four others are
styled ordines minores* These latter, though a comple-
ment of the diaconate, are of purely human origin.
The supreme pontificate and the episcopate are of di-
vine origin, though they are distinct one from the other by
reason of their jurisdictional institution. The supreme
pontificate, which is an office not only of honor, but of
jurisdiction in the proper sense,0 comprises the legislative,
judiciary, and coercive power in their full and unlimited
extent, as far as required by the purpose of the Church.
Therefore the jurisdiction of the Pope is coextensive with
the Church itself, and comprises all members of the same,
whatever their rank or condition, as well as all those ob-
jects which fall under ecclesiastical jurisdiction. There-
fore the jurisdiction of the Sovereign Pontiff is called
plena et suprenta.
However, the power of the bishops, though subject to
and dependent upon, this supreme jurisdiction of the
Pope, is really ordinary,10 i. e., given by virtue of the
episcopal office, radically or aptitudinaliter by consecra-
tion, fully and expeditely by confirmation or promotion.
t Cfr. c. ii, Dist. 32 (Alex, II.); q. 3$. art. 5; Q- 37. »rt. a; Bened.
c. 9. X, I, 14- XIV, "In fojtrcmo," Oct. so, 1756.
8Cf. Wieland, Die EnUmcktung | 10 ff. (Bull., t. Ill, p. 291 S.);
der tog. Ordines Mmorts {Rom. Poble-Preuss, The Sacraments, IV,
Qmartalschrift) 1897. The theo- 19 1 7, p. 93.
logical question whether all the or- » Cone, yatic., De EccL, c 1-3.
dera are dislinct does not touch the 10 Cone. Vatic., De Eccl., c. 3.
canonist. Cfr. St. Thomas, Suppl.,
p
oogle
Original from
UNIVERSITY OF WISCONSIN
46 ECCLESIASTICAL PERSONS
Whether this jurisdiction is given to the bishop imme-
diately by the Pope or by God Himself through the me-
dium of his Vicar on earth, is a question which may
agitate a speculatively inclined theologian, but does not
excite the canonist. The more common opinion is the
one mentioned first, because it is certain that no bishop
is constituted without the consent and confirmation of
the Holy See; and hence we may say that all jurisdiction
in the Church comes immediately from the Pope.11
Since, however, the episcopal jurisdiction is an ordinary
one, it cannot be set aside by the Supreme Pontiff, as if he
could rule the Church by his vicars, or restrict the episco-
pal jurisdiction by undue reservations." No such power
is included in the papal sovereignty, for the simple reason
that the episcopate is established by God, and forms part
and parcel of the divine organism of the Church. On
the other hand, subordination of the episcopal jurisdic-
tion to that of the supreme head is a necessary require-
ment of unity of faith and government. An illustra-
tion is furnished by the Oriental Church.
Canon 108 says, lastly, that the other degrees existing
among the clergy are of (purely) human institution.
Concerning the orders and the potestas ordinis given by
ordination, we have said enough. There are eight of
them, now permanently fixed. As to the degrees of
jurisdiction, introduced in course of time, they are es-
pecially the following: cardinals, patriarchs, primates,
metropolitans, and other prelates endowed with jurisdic-
tion in foro externo. All these will occur again.
11 Cfr. Mazzella, De Rel. et Ecc.t all the bishops received their juris-
ed. 5, p. 786, whose historical ar- diction from the Pope. Wernz,
(rumen ts. however, ire not cogent. Jus. Dtc, II, n. 737. calls tbe old
as it is hardly possible to prove opinion "antiquated.1*
that, in tbe first ten centuries, 1 - Aichner, /. c, \ 99.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 109 47
Can. 109
Qui in ecclesiasticam hierarchiam cooptantur, non
ex populi vel potestatis saccularis consensu aut voca-
tione adleguntur; sed in gradibus potestatis 01 dims
const ituuntur sacra ordinatione; in supremo pontifi-
cate, ipsomet iure divino, adimpleta conditione legiti-
mae electionis eiusdemque acceptationis ; in reliquis
gradibus iurisdictionis, canonica missione.
This canon, the first clause of which is taken from
the dogmatic canons of the Council of Trent,13 is directed
against certain innovations which cropped out throughout
the history of the Church, but were introduced especially
by the so-called reformers of the sixteenth century. The
"consent of the people " was the favorite cry of Arnold
of Brescia and his followers, in the twelfth century. It
was repeated by Wiclif and Huss, Calvin and Zwingli.
Against these the Council of Trent declared it as an ar-
ticle of faith that the people have no voice in the choice
of ministers. The consent of the civil power was favored
by Luther, and partly also by Zwingli at the Council of
Zurich. Both demands are excluded by the very organi-
zation of the Church and its nature as a societas in-
aequalis.
The next clause establishes the human agency by which
the papal power is conferred, i. e.t legitimate election ac-
cepted by the person elected. On this subject more shall
be said in its proper place. The reason for the law here
laid down is that the papal power is supreme, and there is
no superior who could either ratify election to it or ac-
cept the person elected.
18 Cone. Trid., Seas, aj, can. 4, demned, arc called " robbers and
De Eccl. Hitrarchia ft Ordinationt; thieves." (John 10, 1).
a
those chosen in the way here con-
>ogje
Original fro m
UNIVERSITY OF WISCONSIN
48 ECCLESIASTICAL PERSONS
The * tnissio canpnica " is necessary for all who are in-
ferior to the Pope. For as the Lord sent his Apostles,1*
so in turn they sent others to exercise their spiritual
power with authority, and without such credentials no
one has authority in the Church. Formerly (up to the
twelfth century) the tnissio canonica was believed to be
included in ordination, but now that absolute ordination is
possible, a distinct tnissio canonica, by which jurisdiction
is conferred, is always required.1*
Can. 1 10 .
Quamvis Praelati titulo, honoris causa, a Sede Apo-
stolica etiam nonnulli clerici donentur sine ulla iuris-
dictione, proprio tamen nomine Praelati in iure dicun-
tur clerici sive religiosi qui iurisdictionem ordinariam
in foro externo obtinent.
The name prelate is derived from praeferre, to prefer
[some one] to others. It is applied in the ninth century to
abbots and abbesses,18 and later occurs frequently in the
Decretals.17 At the Roman Curia, especially since the
college of cardinals shared more largely in the govern-
ment of the universal Church, — i. e., since the twelfth
century, — are mentioned praelati de curia and praelati
domus (employed in the personal service of the pope).
Both classes constitute the Praelatura Romana, now dis-
tributed among the various congregations, tribunals, and
offices, and the Fatniglia Pontificia.™ A new organiza-
tion of the Prothonotarics Apostolic has been created
■
"Matt 28, 18; Rora. 10, 15. IT Cfr. cc. 41, 44, X, I, 6; c. 2,
10 Cfr. Sftgmailer, K.-R., ed. I, X, II, 1 ; c. 3. X. I, 31 etc
p. 147. 18 Cfr. PhillipB, KirehtnneM,
i» Cfr. Da Cange. Glossarium, Vol. VI, 297 ff; Hinschius, K.-R.,
a. t. " PratlatHs "; Tertulliau, Dt I, 375 ff.
Corona, III, J.
jle
Original fro rn
UNIVERSITY OF Vi'lSCONSIN
CANON 1 10 49
by Pius X. • The Bull "Inter multiplices," of Feb. 21 ,
1905, determines the rights and privileges of the four
classes of prothonotaries,18 but does not touch the domes-
tic prelates, nor the private chamberlains residing in or
outside of Rome.20 All these are honorary prelates.
The Code says that prelates in the proper sense are
such only as enjoy jurisdiction in foro externo. Forum
in the primitive sense meant a market-place, where wares
were exposed for sale. There were many such fora in
ancient Rome. The term was also used to designate a
judgment place, or court, on account of the publicity
given to trials, and in this sense was transferred to the
power of the judge, or rather to his competency.21 From
these two significations it is easy to construe the meaning
of forum externum, which is nothing else but the power
of jurisdiction in matters concerning the public order of
the Church. This power is manifested in the exercise
of the legislative, judiciary, and coercive function, espec-
ially in the infliction of censures and vindictive penalties,
as will be seen in the fifth book."
u
IB Cfr. A met. Eccl. Rev., Vol. 21 Cf. I. 5, Cod. Jusi., Ill, 13:
31, p. oi,mY. "in criminoii negotio rei forum
20 Cfr. Cat*. Eneyel., Vol. X, accutntor tcqualur."
$10, 1. v. *' Monaignore; " Am. 22 Cfr. Putzcr, Comment., p. 24.
■
Eat. Rtv., Vol. 31, p. 60s.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
TITLE I
INCARDINATION IN A DIOCESE
After describing the constituted hierarchic order of
clerics who enjoy ecclesiastical power in different degrees,
it is natural that the code should treat of the local * hier-
archy, or incardmation in a diocese.
The Council of Chalcedon2 forbade so-called abso-
lute ordinations, and hence every cleric was assigned at
ordination to a specified diocese, or city, or martyr's cell,
or monastery, where he had to perform his functions.
Hence clerics were called incardinated in a certain church
as subdeacons, deacons, or priests. Incardination in an-
other diocese was allowed only with the permission of
both bishops concerned, unless the ordinary was in the
hands of enemies or otherwise impeded.' Litterae com-
tncfidatitiae were required for receiving strange clerics
or monks into dioceses and monasteries not their own.*
In course of time, especially since the twelfth century, the
old discipline was relaxed and various titles of ordina-
tion were, at least practically, admitted. But the Coun-
cil of Trent B returned to the old discipline, and the n»;w
Code upholds its decision.
1 See the historical note under 8 Cfr. c. 5, dist 71; c. 6, (list. 74.
canon 216. 4 Cfr. Rtg. S. I rmd ., c. 61; c 7,
2 Can. 6; cfr. c. 1, dist 70; c. 8, dist. 71.
1, dist 71; c 17. 6°, III, 4, De 6 Sen. si, c. 16, Dc Rtf.
Pr04b.
Gr\nnl*> Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
-'
CANON in 51
Can. hi
§ 1. Quemlibct clericum oportet esse vel alicui dioe-
cesi vel alicui religioni adscriptum, ita ut clerici vagi
nullatenus admittantur.
§2. Per receptionem primae tonsurae clericus ad-
scribitur seu, ut aiunt, incardinatur dioecesi pro cuius
servitio promotus fuit.
After having stated, in can. 107, that there are two
classes of persons, clerics and laymen, and that both may
be religious, the Code decrees that every cleric must be-
long either to a diocese or to a religious order. Both dio-
ceses and religious orders or congregations may be looked
upon as corporations in the canonical sense. Every
clergyman must therefore be a member of one or the
other. This is necessary even from a juridical point of
view. For a regulated administration requires that every
subject should belong to some municipality or corporation,
whose duties and obligations he shares.
A cleric becomes incardinated in a diocese or religious
community at the moment when he receives the first ton-
sure,6 because at that moment he enters the clerical
stat- , which, though in abstracto it signifies the sacred
ministry in general, yet in concrete means that part of
the Church which is assigned for a clerk's activity. The
phrase, " to the diocese to which he is promoted," includes
not only the titulus servitii, but any title on which one is
ordained. For § 1 simply forbids vagrant clerics.
Can. 112
Praeter casus de quibus in can. 114, 641, § 2, ut
0 It is called fi»t tonsure because it presupposes the renewal of the tonsure.
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gle
■
52 ECCLESIASTICAL PERSONS
clericus alienae dioecesi valide incardinetur, a suo
Ordinario obtinere debet litteras ab eodem subscriptas
excardinationis perpetuae et absolutae; et ab Ordinario
alienae dioecesis litteras ab eodem subscriptas incardi-
nationis pariter perpetuae et absolutae.
Can. 113
■
Excardinationem vel incardinationem concedere nc-
quit Vicarius Generalis sine mandato speciali, nee Vi-
carius Capitularis, nisi post annum a vacatione sedis
episcopalis et cum consensu Capituli.
Can. 114
Habetur excardinatio et incardinatio, si ab Ordinario
alienae dioecesis clericus benencium residentiale ob-
tinuerit cum consensu sui Ordinarii in scriptis dato, vel
cum licentia ab eodem in scriptis concessa e dioecesi
discedendi in perpetuum.
Can. 115
Etiam per professionem religiosam quis a propria
dioecesi excardinatur, ad normam can. 585.
Can. 116
Excardinatio fieri nequit sine iustis causis, et ef-
fectum non sortitur, nisi incardinatione secuta in alia
dioecesi, cuius Ordinarius de eadem priorem Ordina-
rium quantocius certiorem reddat.
Can. 117
Ad incardinationem alieni clerici Ordinarius ne de-
veniat, nisi:
'Ic
j , Original fro ni
UNIVERSITY OF WISCONSIN
N
CANON 117 53
z.° Necessitas aut utilitaa dioccesis id exigatv ct
salvia iuris praescriptis circa canonicum ordinationis
titulum;
2.0 Ex legitime) documento sibi const it erit de ob-
tcnta legitixna excardinatione, et habuerit praetcrea a
Curia dimittente, sub secreto, si opus sit, de clerici
natalibus, vita, moribus ac studiis opportuna testi-
inonia, maxime si agatur de incardinandis clericis di-
versae linguae et nationis ; Ordinarius autem dimittens,
graviter onerata eius conscientia, advigilare debet ut
testimonia sint veritati conformia;
3°. Clericus iureiurando coram eodem Ordinario
eiusve delegato declaraverit se in perpetuum novae dio-
ecesis servitio velle addici ad normam sacrorum ca-
nonum.
Many decrees7 were issued in the course of about
twenty years for the purpose of regulating the matter of
excardination and incardination. They were all based
on the Tridentine law and upon the Constitution " Spe-
culatores" of Innocent XII, Nov. 4, 1694. This pontiff,
a canonist of renown, determined the question of the
episcopus proprius and in connection therewith, also
touched the subject of excardination. According to the
Constitution mentioned every layman who left the dio-
cese where he was born or where he had a legitimate
domicile, had to be excardinated by his own bishop if he
wished to receive tonsure from another.8 Our Code does
not mention excardination proper, but simply says that
by the first tonsure one becomes attached to the diocese
for which one is to be ordained or promoted. Hence
the case of laymen now no longer enters the question
of excardination or incardination.
T Cfr. A. Ap. S., II, 103; IV, 149; Vol. 30, 393 fl.
V, 34; VI, i8aff.; Am. Eccl Rtv., «Cfr. Richter, Trii., p. 336, «3
oogl
Original fro rn
UNIVERSITY OF WISCONSIN
54 ECCLESIASTICAL PERSONS
The new legislation may be summarized as follows:
a) Letters of cxcardination and incardination arc re-
quired;
b) Such letters cannot be given except for just
reasons ;
c) Both excardination and incardination must be ab-
solute and perpetual;
d) Excardination does not take effect until incardina-
tion has been granted.
These are the four salient points. Hence everything
must be done in nmting, with signature and seal. In
former decrees it was required that the cleric should be
minutely described as in a passport. The vicar-general
needs a special mandate to issue such letters, and the
vicar-capitular is allowed to grant them only after a
year's vacancy. The reason for excardination must be
just, and considered carefully by the Ordinary. It may
be based either on necessity or utility ; fi hence a reason of
either kind suffices. Necessity could be urged if there
were a penuria sacerdotum, either temporary or perma-
nent; utility, if there were need of help in diocesan in-
stitutions,— schools, seminaries, parishes of diverse lan-
guages, etc. The bishop himself is the judge about the
existence of such reasons.
Excardination or incardination is absolute and perpet-
ual if no condition is added ; such a condition would be,
for instance, " if you do not stay in my province," or "if
you do not apply to such and such a bishop." No condi-
tions are admitted, and if they be added, must be looked
upon as non-existent. What u perpetual " means is
clear; it precludes incardinating a cleric for a time only,
e. g., as long as help is needed.
<
• Cone. Trid., Seas. 23, c. 16, D§ Rif.
,1,., Original from
UNIVERSITY OF WISCONSIN
>gle
CANON 117 55
Excardination does not take effect until incardina-
Uon is consummated. This is a noteworthy clause. It
protects clerics against harsh measures unauthorized by
law, and is simply a consequence of the law which or-
dains that every cleric should belong to some diocese. A
bishop may dismiss a priest usque in indefinitum, but the
priest continues to belong to his diocese as long as he has
not been incardinated elsewhere, and, therefore, is en-
titled to decent support.
The bishop, however, has the right to give one written
permission to take leave of absence from his diocese in
Perpetuum (can. 114). Permission (licentia)t however,
generally presupposes a demand, as the word " concessa "
also implies. Wherefore, in that case, the cleric asking
for such a permission has to take the consequences upon
himself. As to a residential benefice, i. e.t one which
requires lasting residence in a strange diocese, for
instance, a parish or canonical office, excardination and
incardination are implied in the very grant thereof. The
same is to be said concerning religious profession which
is made by perpetual (either solemn or simple) vows
(can. 505). For by such a vow one becomes a member
of a religious body.
The oath to be given at incardination is that which
is taken by touching the Gospels as a witness of one's
earnest intention. The S. C. Cons, has decided that,
if this oath was perchance omitted at the time of incar-
dination, the bishop cannot therefore declare the incar-
dination invalid.10 This decision, we believe, is not
overthrown by the Code, because the wording of can.
107, though prohibitive, is not nullifying.
10 Jan. 31, 1913 (A *P- S., V, 34)-
►ogle
f^ ^ s ,1,., Original from
UNIVERSITY OF WISCONSIN
■
TITLE II
RIGHTS AND PRIVILEGES OF CLERICS
If the clerical state, on account of its hierarchic power,
is superior to the lay state, it follows that this superiority
must be manifested by outward signs or rights. This is
a dictate of reason, as the history of all civilized nations
attests. Wherever there was a legally acknowledged
priesthood, it enjoyed marked distinctions, not only under
the Jewish theocracy, but also in the Oriental empires as
well as in the Greek and Roman States.1 The Christian
priesthood and ministry could not form an exception.
But it would be shooting beyond the mark if we were to
assert that each and every privilege or right vindicated
to the clergy in the following canons is of natural or
divine law. For not only is it contrary to logic to deduce
a particular conclusion from a general and vague premise,
on the ground of their being of the same nature, but even
scriptural and historical indications would fail to bear
out such conclusions regarding some of these privileges.
We premise this in order to caution the reader against
certain unproved assumptions.
The caption of our Title reads : Rights and Privi-
leges of Clerics." No precise distinction is made be-
tween rights and privileges, and hence a margin is left for
controversial speculation. The whole class of these rights
c
l Cfr. Handbuch der Kttus. At- Kultus der Romtr, 1902, pp. 63 ft.;
tertumswissenschafUn, O. Gruppe, 339 f.; 410 ff. Ramsay-Lanciani,
Grirch. Mythologie, 1906, II, 10*0 Manual of Roman Antiquities, 1901,
and passim; Wiswwa, Hellion und pp. 374 S.
56
G| _ Original fro m
OOglt UNIVERSITY OF WISCONSIN
CANON 118 57
is known by the general name of immunities.1 Immu-
nities comprise the privilegia canonis et fori, beneficium
competentiae, and immunity in the strict sense. All these
privileges belong to the clergy by virtue of their state,
and remain as long as they are not forfeited by the loss
of that state or by virtue of the penal law.
Can. 118
Soli clerici possunt potestatem sive ordinis sive
iurisdictionis ecclesiasticae et beneficia ac pensiones ec-
clesiasticas obtinere.
This is a strict right, not a mere privilege ; a right re-
served to the clergy because the divine organization of
the Church enjoys the peculiarity that ecclesiastical power
is granted only to those chosen by Christ. Hence what-
ever pertains to the hierarchical power, order, and juris-
diction can be conveyed only to such as belong to the
hierarchy. Besides, since the material emoluments are
granted on account of the spiritual office, which can be
exercised only by hierarchical persons, ecclesiastical
benefices and pensions can be obtained only by clerics.
Therefore laymen, as such, cannot be ordained, as long as
they have not received the first tonsurc.a If the examples
of St. Nicholas and Ambrosius arc urged against this
principle, we need not resort to Gratian's expedient,4 but
simply answer that their calling was divinely sanctioned,
and rather forms an " exceptio quae firmat regulam," than
a breach of principle. Laymen, as such, cannot obtain
jurisdictional power in matters strictly spiritual or ec-
c
2Cfr. X, III. 49, Dt Tmm. Ecci, 4Cfr. c. 8, Dist. 6i. where he
and the commentators thereon. speaks of insufficient education and
* Cfr. c. 8, Dist. 6 i . c contr*, c> spiritual inferiority.
7, X, II, a6, Dt prattcrift.
jle
Original fro m
UNIVERSITY OF WISCONSIN
■
58 ECCLESIASTICAL PERSONS
clesiastical;5 neither can they obtain any benefice which
is of a purely ecclesiastical nature ; though by special con-
cession they may be patrini of benefices* or have the
advowson, as the English law puts it
THE PRIVILEGIUM CANONIS
T
Can. 119
Omnes fideles debent clericis, pro divcrsis eorum
gradibus et muneribus, reverentiam. seque sacrilegii
delicto comraaculant, si quando clericis realern iniu-
riam intulerint.
The relation existing between a superior and an in-
ferior enjoins respect for authority and obedience on the
part of the subordinate. Therefore the clergy always
take precedence over the laity.
The second clause of our canon contains the so-called
privilegium canonis, which dates back to the second Lat-
eran Council, A. D. 1139. The violent acts perpetrated
by Arnold of Brescia and his followers against priests
and religious led the Council to repeat and summarize
previous synodal acts of Rheims and Pisa in one canon;
hence the name. This canon, the fifteenth of the Lat-
eran Council/ decreed that whoever maliciously lays
hands on any cleric or monk, thereby incurs ipso facto
excommunication, from which, except in danger of
death, no bishop shall dare to absolve him, until he pre-
sents himself before the pope to await his sentence."
Our canon speaks of a sacrilege, but does not mention
its penalty, which belongs to the penal Code.8 Who are
■ C. 2, X, IIt 1: "Laid eeclesias- Trid., 34, can. 34, De Matr.
tica negoiia tractor* non pnesu- 6 Cfr. Reiffenstuel, II, I, p. 75.
mant " ; c. 8, X, I, 43, De arbilrie; 1 Cfr. c. ao, C. 17, q. 4.
concerning matrimonial causes cfr. I Cfr. c. 3343, which mitigated
ogle
£ * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 120 59
meant by clerici is evident from can. io8, § x, vis.: all
those who have received the first tonsure, but also all
religious of both sexes, even novices, as well as tertiaries
who live in common and wear the religious habit, and
hermits who live in common and have received the habit
from the competent authority.9
The injury which is declared to be a sacrilege, must be
real, that is, done to the cleric himself by act or deed, not
in words only ; thus imprisoning I0 a cleric or throwing
mud at him, would be a real injury.
The action must be injurious, which implies that the
offended person is justly11 indignant at the perpetrator
and that the latter was aware of the sacred character of
his victim. Self-defence against a cleric is no injurious
action. Though there is, according to our view at least,
no specific difference between a sacrilegious act com-
mitted against a higher and one committed against a
lower cleric, yet on account of the public order the pen-
alties imposed differ according to the rank of the injured
party. This is clearly stated in the penal Code.
THE PRIVILEG1UM FORI
L
Can. 120
o
§ z. Clerici in omnibus causis sive contentiosis sive
criminalibus apud iudicem ecclesiasticum conveniri de-
bent, nisi aliter pro locis particularibus legitime pro-
visuxn f uerit.
a
§ 2. Patres Cardinales, Legati Sedis Apostolicae,
Episcopi etiam titulares, Abbates vei Praelati nuiiius,
supremi religionum iuris ponti ftcii superiores, Ofiiciales
the penalty for injury done to the Ap. Sedis, 1804, p. 73.
lower clerg? (not prelates) by re- lOCfr. c. 1, 3, 4, 10, 24, 54, X,
■erring it to the Ordinary. y, 39-
• Cfr. D'Anmbale. Comment, in H If ft clergyman has provoked
jfe
k ,1,., Original from
UNIVERSITY OF WISCONSIN
60 ECCLESIASTICAL PERSONS
maiores Romanae Curiae, ob negotia ad ipsorum
munus pertinentia, apud iudiccm laicum convcniri nc-
queunt sine venia Sedis Apostolicae ; ceteri priviiegio
fori gaudentcs, sine venia Ordinarii loci in quo causa
peragitur; quam tamen licentiam Ordinarius, praeser-
tim cum actor est laicus, ne deneget sine iusta et gravi
causa, turn maxime cum controversiae inter partes
componendae frustra operam dederit.
§ 3. Si nihilominus ab eo qui nullam praehabuerit
veniam, conveniantur, possunt, ratione necessitatis, ad
vitanda maiora mala comparers certiore tamen facto
Supcriore a quo venia obtenta non fuit.
This canon contains, as it were, the ancient and mod-
ern history of the privilegiutn fori in a nutshell. The
privilege, then, signifies that clerics in civil as well as
criminal causes should be judged by an ecclesiastical, and
not by a lay tribunal. It has been frequently asserted "
that this privilege is of divine or natural law, and argu-
ments from the Old Testament as well as from pagan
customs have been brought forth in proof. However, a
little historical reflection is sufficient to disprove these
pretensions. For neither theory nor practice has always
been uniform. Rather extensive prerogatives were
granted to bishops. Constantine permitted them to have
some influence in deciding between dissentient secular
judges.18 Valentinian III granted the right of deciding
civil cases of the clergy who sought the episcopal tribunal;
but criminal cases of clerics had to be brought before
the lay judge.14 Justinian excluded from the competency
inch treatment by an insult of- 12 Cfr. the Commentators on Xf
fered to tbo perpetrator'* wife, II, i, and X, III, 49.
mother, daughter or sister, he can- 18 Cf. Euseb., Vita Const., IV,
not be said to be justly indignant 27; Cod. Thtod., VI, 281.
l* Nov. J ;, Am. 454; Gutbofrcd,
>Ie
Original from
UNIVERSITY OF WISCONSIN
CANON 120 61
of lay judges all causes of monks and nuns; and con-
cerning the civil causes of clerics he ordained that they
might be brought before the bishops, and only in case
these should fail to reach a sentence should the lay
judges be called upon to decide. In criminal cases the
accused cleric was first to be cited before the episcopal
court and then punished by the civil court.15 With little
differences the same practice was followed in the West,
though here the influence of Pseudo-Isidore cannot be de-
nied, as a glance into Gratian's Decree shows.18 Since
the ninth century the prelates and inferior clerics claimed
immunity from lay courts. After the Reformation, and
even more so after the French Revolution, under the in-
fluence of Rationalism, the privilegiutn fori was curtailed,
in some instances (Austria, Bavaria, Sicily) with the con-
sent of the Holy See by way of concordats.17
The latest occasion where the privilegiutn fori was pub-
licly and emphatically reasserted was in the Verdesi-Bric-
cardelli case, in which certain Cardinals were cited to ap-
pear in court, and were excused only on the ground
that exemption was attached to the royal order of the An-
nunziata, to which they happened to belong. This incident
called forth the famous Motu proprio of Pius X, " Quan-
tavis diligentia" of Oct. 9, 1911, which caused unneces-
sary disturbance in more than one parliament.18
After this historical preliminary let us see what the
Code states. It first vindicates (§1) the privileged court
for the whole clergy as far as the term clergy extends, i. e.f
all those who enjoy the privilegiutn canonis. But it also
Q
VI, 417; Baroniua, Annak EccU ad Pub., p. 78*1.
Annum 4$g. IT Austrian Concordat, art. 13;
IB Nov,, 83. I 1; 123. c. 37- Aichner, Appendix, p. 6: Niuri.
i« Cfr. cc. if 3, 9, xo, C, XI, q. Conventions, 1809, p. ioj.
1 (all Pseudo-Isidorian sources) ; 10 Cfr. A. Ap.
mee Bachofen, Summa Juris Eccl.
ioi >gle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
62 ECCLESIASTICAL PERSONS
makes an exemption, viz., for those countries or places
for which special provision has been made. Such provis-
ion is made by concordats and in other ways. §2
distinguishes between the higher and the lower clergy.
The higher clergy are the cardinals, legates of the Apos-
tolic See, bishops, praelati nullius, the superiors general
of papal orders, and the higher officials of the Roman
Curia. Who these officials are is not apparent either from
this canon or the organization of the Roman Court, but
the Prefect, the Secretary and the Subsecretary are doubt-
less included. The term legates most probably includes
Apostolic delegates.19
After the enumeration of the higher officials of the
Roman Court follows a comma, and then, " on account of
affairs pertaining to their office." The question may arise
whether this addition refers to all the persons (cardinals,
legates, bishops, prelates nullius, superiors general, higher
officials of the Roman Court) or to the last-named only.
In the latter case the higher officials of the Roman Curia
might be cited before a civil court for matters not per-
taining to their office, whilst the other persons named
could not be summoned at all. Can. 2341 refers the
clause, " on account of affairs, etc.," without a comma,
only to the higher officials of the Roman Court, and we
believe there was a special reason to mention these mat-
ters in connection with the Roman officials, on account
not only of the importance of the matter, but also because
they belong to the papal authority, and, we might say,
household. On the other hand, the privilegium fori must
be vindicated to these officials to the full extent, accord-
ing to § 1.
i» Cfr. can. 267. 1 3. — The and provincials of communities or
maicrcs religionum iuris pontt- congregations approved by the
ficii superiors are Abbot Primate, Holy Sec. Cfr. c 488.
abbots president, abbots, generals,
ogle
k ,] , Original from
UNIVERSITY OF WISCONSIN
CANON 120 63
The next clause of § 2 treats of clerics of inferior rank,
such as vicars-general, honorary prelates, pastors and
their assistants, and religious. All these must first obtain
permission of the Ordinary before they may licitly appear
before a civil court- Here no mention is made of matter
pertaining to their office. Note that religious, though
exempt, must have leave from the Ordinary of the dio-
cese, not only the permission of their own superior, who
cannot, however, withhold it if the Ordinary has given
his. Ordinaries are in the last clause of the same § 2
exhorted to be liberal unless they have special and weighty
reasons for refusing permission.
§ 3 of canon 120 provides for cases where clerics are
summoned without the necessary permission, and estab-
lishes that only in cases of necessity and when greater
evils might follow if the clergy would not appear, the
higher as well as inferior clergy are allowed to obey the
summons of a civil court. However, from can. 2341 it
is evident that the penalty of excommunication reserved
to the Holy See modo speciali would be incurred if a car-
dinal, an Apostolic legate, a higher official of the Roman
Court, or the Ordinary of the diocese would be summoned
by civil authorities without the necessary permission.
The same penalty would be incurred if another than the
diocesan bishop, though but titular, or a prelate nullius,
or a religious superior general of a papal institute would
be summoned. If any of the lower ranks of the clergy
would be called to court, the penalty for a cleric would
be suspension, and for a layman some penalty to be deter-
mined by the Ordinary.
Now two questions of importance must be answered :
(a) Do the prxvilegium -fori and its concomitant pen-
alty also apply in the case where one is called as a witness
only? The text ibique ad esse as well as the interpreta-
OOglL UNIVERSITY QFWI5C0NSIN
64
ECCLESIASTICAL PERSONS
■
tion given by Cardinal Gennari answer affirmatively.20
We also know that this was the stand taken by the Roman
Curia in the Verdesi case.
(b) May a custom be admitted against the privilegiutn
fori? This may also be affirmed, as appears from the
answer of Cardinal Merry del Val to the ambassador of
Prussia, Muhlberg, officially " printed in the Osservatore
Romano of Dec. 16, igu. Whether this custom may be
upheld in the U. S. is difficult to say in view of the enact-
ments of the Second PI. Council of Baltimore, n. 156, and
the Third, n. 84. The clause inserted by the latter : * as
far as it may be defended among us/' seems to admit the
contrary custom. Besides, there is no doubt that English
customs prevail in our country, and these would point to
the existence of a contrary custom.22 Lastly, our canon
does not reprobate such a custom.
PERSONAL IMMUNITY
Can. i2i
Clerici omnes a servitio militari, a muneribus et pub-
licis civilibus officiis a statu clericali alienis immunes
sunt
This canon comprises the whole range of personal im-
munity which the clergy have de iure et facto enjoyed
for centuries. On just what ground, or law, or custom
this freedom is based, the Code does not decide. Neither
has any dogmatical definition ever been given in this re-
gard. For the text in the Decretals 28 that churches and
20Cfr. Monitor e Eccles., 1912, p. f. K.-R., 1915, 397 f.; Monitor*
507. Ecctes., 1911, p. 507.
22Cfr. Am. Eccl. Rev., Vol. 47.
31a ff.
28 c. 4, Ct III, ao, Dt Immuni-
ty*.
11 The Osservatort is not the of-
ficial organ of the Vatican, but in
this case the latter employed It to
five an official answer. Cfr. Arckiv
oogle
Original from
UNIVERSITY OF WI5C0NSI
CANON 121 65
ecclesiastical persons and things enjoy immunity by divine
right, is merely an assumption not contained in the dis-
positive part of the law. The Council of Trent 2* appeals
to the rulers to respect the privilege, but advances no defi-
nition. The Syllabus condemns the propositions that
clerical immunity originated in a grant of the civil govern-
ment, and that it could and should be abolished.26 Hence
no authentic or de fide definition has been issued by the
Apostolic See concerning the immunity of the clergy.
What we said concerning divine law in reference to the
privilegium fori applies here also.
The clergy are free from military service. That
priests at least should be exempt from carrying and using
arms seems very becoming and just. For their state
demands charity, meekness, and forbearance, which
shrink from bloodshed. Besides their high calling re-
quires that they hold themselves aloof from the strife and
turmoil of warfare. In times of war especially are they
the messengers of spiritual and even corporal mercy.
The sacerdotal character resembles that of the Prince
of peace, whose hands were not stained with blood,
whose lips spoke nought but love, even for His enemies,
whose heart embraced all. We will not speak of the
dangers accruing to the priestly life from the atmosphere
of garrisons and trenches. If any one should trump up
democracy — a term much abused but seldom rightly
understood — as demanding equality of all citizens, we
answer that the Athenians and the Romans were as good
democrats as we moderns, and yet accorded a privileged
place to their priests. True democracy does not exclude
respect for the things that pertain to God, who, being the
author of nature, is also the author of the democratic
a
-
24 Scss. 25, c. 20, Dt Rtf. ner, Dtt Syllabus, 1905, p. 167.
2ft Sylltbu*, o. >o, a. jj; Hci-
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
66 ECCLESIASTICAL PERSONS
form of government as well as of the monarchical. We
have dwelt upon this point because it seemed necessary
in view of present tendencies. For the day will come —
and we hail it — that compulsory military service will be
introduced into our republic. Why not take our little
sister republic of Switzerland for a model? There, no
one physically fit is exempt from military service. After
having passed the medical examination and being found
capable, the young man, at the age of twenty, must serve
for ten weeks as a recruit of infantry, or for twelve
weeks in some of the other units. After that, two or
three weeks every year, when the manoeuvres take place,
must be spent in the military service, only those of the
clergy being exempt who have received at least subdea-
conship or definitively entered the religious state.
Those who are exempt from service must pay the military
tax. Of course military chaplains with the rank of cap-
tain are also drafted. We cannot see any damage either
to the clerical state or to the country in such conditions.
The little Swiss Republic, surrounded as it is by four
great powers, has proved itself a noble country, ready and
able to fight for liberty and democracy without deeming
it necessary to disturb the ministers of religion in the
possession of their time-honored immunity.29
Obligations or munera (sordida) are such kinds of
labor as are commonly called base because performed
only by physical labor, and were always looked upon
as unbecoming to cultured persons; or, as Blackstone
says,27 such as are fit only for peasants or persons
of servile rank. These were called services of villein-
socage. Hither belonged the pedagium (angaria), or
'-
20 Concerning the custom of the the University of Fcnn., Vol. IV, u.
Middle Ages in England, see Trans- 3, p. 28 ff.
'•aliens and Reprints, published by 27 Commentary, II, 60 f.
, ,1,., Original from
UNIVERSITY OF WISCONSIN
>gle
■
CANON 122 67
road-repairing, the podagium, or upkeep of bridges,
the ius tnetatus, or quartering of soldiers, etc. Such
services were not demanded from the clergy.28 But now
that they arc commuted into poll-taxes, it would be diffi-
cult to exempt the clergy from paying these taxes. Other
taxes, on personal property especially, the clergy have to
pay like the rest.
Public offices of a civil character are, e. g.t the post-
mastership, the mayoralty, the offices of bailiff, constable,
alderman, trustee, guardian, etc. The last-named two
offices a cleric may assume for relations, orphans, and
the poor.28
beneficium competentiae
Can. 122
Clericis qui creditoribus satisfacere coguntur, salva
tint quae ad honestam sui sustentationem, prudenti
ecclesiastici iudicis arbitrio, sunt necessaria, firma ta-
rn en eorundem obligatione creditoribus quamprimurn
satisfaciendi.
■
EL
This is what is known as the privilege or benefit of
the clergy in case of insolvency. Its origin is not only
obscure, but also mystic, on account of the popular com-
parison of the clerical state with the military profession
(militia coelestis — militia terrena). With this compari-
son in mind the commentators on the famous chapter
" Odoardus ".(c 3, X, III, 23) applied to the clergy the
28 Cfr. c 4. X, III. 49. Dt Imm. tags, and not according to the ex-
It ;s to be noted, however, that tent of his ecclesiastical benefice"
c. 7 enjoins the clergy to assist tht v. Translations and Reprints, Vol.
commonwealth if the layman's help I, n. 6, p, 10.
alone does not suffice. The "Great 39 Cfr. cc. I, 3. X, I, 37; c- «t
Charter" of England (1215), n. 22, X, III, 50; Aichner, /. c, 5 73. If,
readi: "A clergyman shall be fined for England see Blackitone-Cooley,
only in proportion to his lay hold- I, 376.
jle
( * -» ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
■
68 ECCLESIASTICAL PERSONS
privileges of the imperial soldiers whose salary could
not be entirely garnisheed by creditors.80 The chapter
alleged really mentions only the dictum of Pope Greg-
ory IX, that a clergyman declaring himself insolvent
should not, on that account, be excommunicated, but
should give security that in case of his obtaining a bet-
ter income, he would pay his debts. This is the sole
basis for the simile of the " spiritual warfare or tnilitia
Christi" Nevertheless the canonists 81 clung to the inter-
pretation and now it has been perpetuated in the new
Code. Now-a-days this matter is settled by civil laws,
which are no longer as rigid as were those of the Mid-
dle Ages. The meaning of the canon therefore is that a
sufficient support should be left to an indebted clergyman
and, especially, that his freedom should not be curtailed.
But the obligation of paying his debts — the security of
the Decretals — certainly remains.
loss of the clerical privileges
Can. 123
Memorat is privileges clericus renuntiare nequtt ; sed
eadem amittit, si ad statum laicalem reducatur aut
privatione perpetua iuris deferendi habitum ecclcsia-
sticum plectatur, ad norraam can. 313, § x, 2304; rccu-
perat vero, si haec poena rcmittatur aut ipse rursus
inter clericos admittatur.
The privileges enumerated, though cleaving to the
1© Cfr. I. 33, Cod. Just., I, 3; nani, ad c. eit, where he mention!
Nov.) iaSg c. 10; 1. 1, j, Dig., v. , the penalty imposed on a deeply in-
17; Zipperling, Das Wsstn dss debted clergyman who was set upon
bsntfiemm competentias, 1907, p. a donkey and had to wear a green
94 ft*. biretta.
■1 Cfr. Kneel, III, 93, o. 1: Fag-
Go >gle
/ ' J , Original from
UNIVERSITY OF WISCONSIN
CANON 123 69
Clergyman, and in so far personal, belong to the cleri-
cal state, i. e.} to the clergy as a class, not to the indi-
vidual in the first place, and therefore they cannot be
waived by private agreement, even though this be con-
firmed by an oath.12 They are lost, however, by degra-
dation, whereby a cleric is reduced to the lay state."
The right of wearing the clerical garb is forfeited by
deposition, followed by stubborn refusal to do penance,'4
and, furthermore, by reduction to the lay state (can.
Miff.).
Clerics in minor orders lose their privileges ipso iure
according to can. 132, § 2, can. 136, § 3, can. 141, § 2, be-
cause by acts done against these canons they reduce
themselves to the lay state.
■
9
82Cfr. c. 1 a, X, II, a. MCan. 3304.
8«Can. 3305; cfr. c. 14. X, V, 39,
Dt tent, cxcom.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
Q
TITLE III
OBLIGATIONS OF CLERICS
RELIGIOUS DUTIES
Can. 124
Clerici debent sanctiorem prae laicis vitam interio-
rem ct exteriorem ducere cisquc virtutc ct recte factis
in exemplum excellere.
Can. 125
Curent locorum Ordinarii:
x.° Ut clerici omnes poenitcntiae sacramcnto fre-
quenter conscientiae maculas eluant;
2.0 Ut iidem quotidie orationi mentali per aliquod
tempus incumbant, sanctissimum Sacramentum visi-
tent, Deiparam Virginem mariano rosario colant, con-
scientiam suam discutiant.
Can. 126
Omnes saccrdotcs saeculares debent tertio saltern
quoque anno spiritualibus excrcitiis, per tempus a pro-
prio Ordinario detenninandum, in pia aliqua religio-
save domo ab eodexn designata vacare; neque ab eis
quisquam eximatur, nisi in casu particular^ iusta de
causa ac de expressa eiusdem Ordinarii licentia.
These three canons refer to the religious life of the
clergy, who in virtue of their divine calling and the
sacred ministry which they exercise, are obliged to gov-
70
oogle
v ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
-
■
pi
CANON 127 ft
era their conduct in accordance with these laws. The
retreat master as well as the spiritual director will find
ample material in the ancient sources of Canon Law 1 for
fit subjects to speak on. This is not the place to enlarge
upon that subject. We would merely draw attention to
the fact that a retreat should not form the occasion for
belittling the science and application of Canon Law or
for concentrating the entire attention on the authority
of the bishop. Suum cuiquel
clerical obedience
Can. 127
Omncs clerici, praesertim vero prcsbyteri, spcciali
obligatione tenentur suo quisque Ordinario revercn-
tiam et obedientiam exhibendi.
Can. 128
Quoties et quamdiu id, iudicio proprii Ordinarii,
exigat Ecclesiae necessitas, ac nisi legitimum impedi-
mentum excuset, suscipiendum est clericis ac fideliter
implendum munus quod ipsis fuerit ab Episcopo com-
missum.
The Code mentions first the special obligation of pay-
ing reverence as well as obedience to the Ordinary. Rev-
erence is due to a superior from his inferiors,1 and con-
sists in external marks of respect, e.g., rising in his
1 Cfr. Dist., 13-50; c 5. C. 6, q. q. 1; c. 18. C II, q. 11; c. 10. C.
1; X. Ill, 1; 6°, III, 1; CUm., Ill, x8, q. 2; cc. a. 7. 9. X, I, 33. See
1 j Trid., Sess. 22, c. 1; Sera. 23. c. Bened. XIV, " Etri minim*," Feb. 7,
11, 13; Seas. 25. c 1, D* Rtf.; 174*, \0 {Bull., Prati, Vol. I, p.
Gasparri. Coder Juris Can., p. 29, 137L), especially concerning; the
enumerates 28 Apostolic Constitu- duty of priests to teach the
tiom and Letters to that effect. catechism.
2 Cf. c. 3. 6, Dist- 23: c. 24, C. 7,
oogle
Original from
UNIVERSITY OF WISCONSIN
73 ECCLESIASTICAL PERSONS
presence and giving him the first place.8 Other signs,
e. g.f kissing the Bishop's ring or hand, are more or less
conventional, and depend upon local custom. Reverence,
therefore, is outwardly manifested by giving precedence
to the superior and showing him such signs of respect as
are customary.
The obedience here inculcated is called canonical, be-
cause based upon the rules laid down by the Church.
At his ordination a cleric simply promises to obey the
Ordinary and his successors. The object and extent of
this obedience is determined, on the one hand, by the cler-
ical state and office, and, on the other, by the extent of
the episcopal jurisdiction. The bishop is entitled to enjoin
or enforce the common law which governs the clerical
state and office in general. The obedience of the clergy,
therefore, extends to whatever concerns their state as
such, and in this matter no exemption can be claimed.
The office of a cleric is partly general and partly particu-
lar. It is general in so far as it is given by virtue of the
different orders — subdeaconship, deaconship, priest-
hood.* Therefore, whatever belongs to his respective
office, a cleric is not at liberty to refuse to perform.
But there is another office attached to the clerical state
(can. 145), which involves the exercise of ecclesiastical
Power in a certain station or measure. The latter is men-
tioned in can. 129. Canonical obedience obliges a cleric
to take upon himself an office duly assigned by his Ordi-
nary, and to discharge that office faithfully, be it that of
parish priest, assistant, chaplain, teacher, etc. He is
D
• Cfr. Smith, Elemtntt, I, p. 217. deacon In the cathedral church. S.
♦ However, Ihii binds only in C. C. Nov. 26, 1701; Aug. 19, 1701,
general, not for a particular church. " Auxvnana " (Ricbter, Trid., ao8,
Thus, t. g., a parish priest, who ii n. 8). Lehmkuhl in the Linger
not canon of a cathedral, cannot be Quarteischrifl, ipoo (Vol. 53), p.
compelled to act at deacon or sub- 86 f.
*Ic
Original from
UNIVERSITY OF WISCONSIN
CANON 128 73
bound to do this by virtue of his ordination for and
incardination in the diocese, and because the clerical state
is one of labor, not leisure. Though the promise of obe-
dience is not an oath which would constitute clerics vas-
sals of the bishop, it partakes of the nature of religion,
which links the clergyman to the legitimate power of
the diocese.
From this obligation a cleric is free in two cases only:
(1) if the Church does not need him, or (2) if he has a
legitimate excuse.
(1) In our country, and after the great war in most
other countries, there is not likely to be an oversupply of
priests.
If the bishop insists upon a priest serving in his diocese,
he must provide that priest with an adequate living.6 A
clergyman not provided with any ecclesiastical benefice
or office in the diocese cannot be compelled to take part
in processions, unless there is a legitimate custom to the
contrary.6
(2) A legitimate excuse exempting a cleric from ac-
cepting an office would be a physical impediment, for
instance, poor health; or a bodily defect which might
prove a serious obstacle to his exercise of the office ; or
a moral obstacle, such as scrupulosity; or enmity on the
part of the people ; or lack of practical knowledge or pru-
dence.7 Where no such excuse exists, a cleric is bound
to obey his bishop when the latter assigns him to a charge.
He must also heed the bishop's injunctions and precepts,
even in matters which are only indirectly connected with
the clerical state and office. In the Constitution of Leo
5 S. C. C. Jan. »6, 1833. Inst., 31, n. 1 f.
"Rtatina" (Richter, Trid., p. *o8, 7 Cir. S. C. Cons., "Maxima
n. 6). cur^," Aug. 30, 1910.
e Richter, ib., n. 9; B«ned. XIV,
§le
Original from
UNIVERSITY OF WISCONSIN
74 ECCLESIASTICAL PERSONS
XIII, " OfUciomm ac munerum" 1897, the clergy are ad-
monished to submit to the Ordinary any books they may
write, even on subjects of natural science and art,
" in order to show an example of prompt obedience,"
and are forbidden to assume the editorship of news-
papers and magazines without the Ordinary's permis-
sion.8 The bishop, therefore, is entitled to demand from
his clergy obedience in all licit things that pertain to his
episcopal jurisdiction, in so far as required by the clerical
state and office.
c
scientific equipment of the clergy
Can. 129
Clerici studia, praesertim sacra, recepto sacerdotio,
ne intermittant; et in sacris disciplines solidam illam
doctrinam a maioribus traditam et communiter ab Ec-
clesia receptam sectentur, devitantes profanas vocum
novitates ct falsi nominis scientiam.
Pan. 130
§ 1. Ex pie to studiorum curriculo, sacerdotes omnes,
etsi beneficium parocciale aut canonicale consecuti,
nisi ab Ordinario loci ob iustam causam fuerint ex-
crapti, examen singulis annis saltern per integrum tri-
ennium in diversis sacrarum scientiarum disciplinis,
antea opportune designatis, subeant secundum modum
ab eodem Ordinario determinandum.
§ 2. In collatione ofBciorum et beneficiorum ecclesi-
asticorum ratio habeatur corum qui, ceteris paribus, in
memoratis periculis magis praestiterunt.
Can. 131
§ 1. In civitatc cpiscopali et in singulis vicariatibus
• Const, cit., n. as.
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gk
CANON 131 75
foraneis saepius in anno, diebus arbitrio Ordinarii loci
praestituendis, conventus habeamur, quos collationes
seu conierentias vocant, dc re morali ct liturgica; qui-
bus addi possunt aliae exercitationes, quas Ordinarius
opportunas iudicaverit ad scientiam et pietatem cleri-
corum promovendam.
§ 2. Si conventus haberi difficile sit, resolutae quaes-
tiones scriptae mittantury secundum normas ab Ordi-
nario statuendas.
§3. Conventui interesse, aut, deficiente conventu,
scriptam casuum solutionem mittere debent, nisi a loci
Ordinario exemptionem antea expresse obtinuerint,
turn omncs sacerdotes saeculares, turn religiosi licet
exempti curam animarum habcntes et etiam, si colla-
tio in eorum domibus non habcatur, alii rcligiosi qui
facultatem audiendi confessioncs ab Ordinario obtinu-
erunt.
The Code, in insisting on knowledge or science in cler-
ics, simply follows tradition and repeats old canons.9
St. Paul's 1(> warning to Timothy is as timely now as
it was then, because faith is not gnosis, and the Church
is the keeper of the depositum fidei. That stress is laid
upon the sacred disciplines or studies, is as natural as to
require of a physician that he study medicine and its
allied sciences.
a
The examination prescribed in Can. 130 may be ar-
ranged in such a way that dogmatic and moral theology,
canon law and Holy Scripture, liturgy and history may
all be surveyed during the three years' course. That a
thorough repetition of these sciences is difficult for many
oCfr. c. i. Dirt. 38: c. a. Dirt. Leo XIII, "Plan* quidtm," May
49; c. a, Dist. j6; c. 15. X, III, if jo, 1885 (Desclec, 1887, II, 136ft.),
Fius II, Comrt. of April 4, 1460; 10 I Tim. 6, 20.
Go >gle
Original from
UNIVERSITY OF WISCONSIN
76 ECCLESIASTICAL PERSONS
priests employed in parish work or teaching is evident,
and hence exemptions are provided for according to the
prudent judgment of the bishop.
Clerical conferences are to be held (the number "is
stated only approximately) sacptus in anno, \. e.t about
two or three times a year.11 The tnatter for these con-
ferences is to be taken chiefly, though not exclusively,
from moral theology and liturgy. These two branches
are of special importance, in as far as uniformity in the
confessional and in the administration of the sacraments
fosters unity of morals and discipline and palpably dem-
onstrates that unity to the people. If conferences cannot
be held for any solid, not imaginary, reason, the Code
assigns a substitute, namely, the written solution of ques-
tions proposed. The matter for these questions is to be
taken from the same branches and they are to be an-
swered as often as conferences would be held. The solu-
tions are to be sent to the Ordinary or his chancellor,
and to be examined by the bishop himself or a delegate,
perhaps one of the usual examiners, or any competent
judge. After the examination the correct answers should
be sent to the priests, while the original copy of the an-
swers submitted may be kept in the archives.
The last paragraph mentions those who are obliged to
attend the conferences or to send in solutions. Leo XIII,
in his Constitution " Rotnanos Pontifices," May 8, 1881,
had laid down the general law concerning regulars
actually employed in the care of souls, whilst the S. C.
EE. et RR. had repeatedly enjoined all regulars who had
received the faculty of hearing confessions to hold theo-
logical conferences in their own houses.13 Hence the
Code establishes nothing new, except in prescribing writ-
-
<
ll Barbosa, Tractalus Varii, Dist II Cf. Bachofen, Compendium
362, I. c, p. 786. Juris Rtgularium, 1903, p. 26a.
p
jle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 132 77
ten solutions. However, these must be sent in by regu-
lars only in case no conferences are held in their monas-
teries. All religious, whether exempt or not, if they are
actually in charge of souls, even though they be prelates,
are obliged to attend these conferences, unless regular
conferences are held in their convents. Hence religious
who are pastors must attend in any case, other religious
only in case no pastoral conferences are held in their re-
spective communities. All this goes to show how impor-
tant these conferences are considered by the legislator,
and that they should not be set aside by bishops or reli-
gious.
Of course, in order to obtain the expected results, the
conferences should be conducted on the basis of authority
and in a manner which interests those who are bound to
take part in them.
CELIBACY OF THE CLERGY
Can. 132
§ x. Clerici in maioribus ordinibus constituti a
nuptiis arcentur et servandae castitatis obligatione ista
tenentur, ut contra eandem peccantes sacrilegii quo-
que rei sint, salvo praescripto can. 214, § 1.
§ 2. Clerici minores possunt quidem nuptias inire,
sed, nisi matrimonium fuerit nullum vi aut metu eis-
dem incusso, ipso hire e statu clericali decidunt.
§ 3. Coniugatus qui sine dispensatione apostolica
ordines maiores, licet bona fide, suscepit, ab eorundem
ordinum exercitio prohibetur.
Can. 133
§ 1. Caveant clerici ne mulieres, de quibus sujpicio
J by C jle
f ■ J ^ Original from
UNIVERSITY OF WISCONSIN
78 ECCLESIASTICAL PERSONS
esse possit, apud se retineant, aut quoquo modo fre-
quentent
§ 2. Eisdem licet cum illis tantum mulieribus co-
habitare in quibus naturale foedus nihil mali permittit
suspicari, quales sunt mater, soror, amita et huiusmodi,
aut a quibus spec tata morum honestas, cum provectiore
aetate coniuncta, omnem suspicionem amoveat.
§ 3. Iudicium an retinere vel frequentare mulieres7
etiam illas in quas communiter suspicio non cadit, in
peculiari aliquo casu scandalo esse possit aut incon-
tincntiae aflerre periculum, ad Ordinarium loci per-
tinet, cuius est clericos ab hac rctcntionc vel f requenta-
tione prohibere.
§ 4. Contumaces praesumuntur concubinarii.
Can. 134
Consuetude vitae communis inter clericos laudanda
et suadenda est, eaque, ubi viget, quantum fieri potest,
servanda.
The last canon, though apparently but loosely con-
nected with the subject of celibacy, has much to do with
it, according to the saying of the Preacher : " Woe to
him that is alone H (Ecc. 4, 10) ; and there is a reason
why the Code has added it to the canons enforcing the
law of celibacy. The Church certainly had strong rea-
sons for establishing the law of continency for the clergy
and of celibacy for those in major orders. The sublim-
ity of the sacred ministry and its constant, almost unre-
lenting occupations, which admit of no family cares and
troubles, originally inspired her to enact this law, which
was, besides, a strong safeguard against the danger of
hereditary succession to office and set up a splendid ex-
ample for the laity.
s'c
Original from
UNIVERSITY OF WISCONSIN
CANON 134 79
The Occidental Church has set a more emphatic exam-
ple in this matter than the Oriental Church. Already
in the fourth century, Pope Siricius (384-398) obliged
priests and levites to sobriety and chastity,1* and Leo I
(440-461) extended the prohibition of marriage to the
subdeacons.1* At the time of the struggle between
Church and State celibacy was attacked, but successfully
defended by the popes. The Second Lateran Council
established the nullity of matrimony for the higher clergy,
and the Council of Trent confirmed its canons.16
The Oriental Church was neither uniform nor con-
sistent in the application of celibacy. Whilst its ancient
custom tallied with that of the Western Church, the en-
actments of the Trullan Synod (692) admitted a laxer
practice, which finally prevailed.10 Even to-day the sub-
deacons of the Oriental rites are allowed to marry before
they receive that order and to cohabit with their wives.
However, if we may believe a modern exponent of the
Oriental law, a marriage contracted by a cleric after
receiving subdeaconship would be invalid,17 though as far
as we are aware, the Catholic Church has never pro-
nounced a sentence on these marriages18 However,
priests of the Oriental rites who wish to be employed as
such in the U. S. must conform to the Latin custom.1*
(1) In the Occidental Church, therefore, every at-
tempted marriage by a cleric who has validly received
subdeaconship or any higher order, unless he be con-
strained by violence or fear, is null and void, not by rea-
ls Cfr. Ep. ad Himerium, n. 10 rtcht dtr Abendland. Kirch*, 1905,
(Constant, /. c, p. 630). p. 367, p. 598.
14 Cfr. c. 1. Diit. 3J. IT Maasch-Peuie, I e.
16 Cfr. c. 40, C. 27. 1- '; c. 13, X, is Cf. Bened. XIV, " Elsi pastor-
Ill, 1; c. 4. X, III, 3; c. 7, X, I, atis," May a6, 174a; " Eo qutmvis,"
an c. un. 6°, III, 15; Cone. Trid.t May 4, 1745 (Bui!., Mcchl., t. I,
Seas. 24, c. 9, De Ref. 361 ff; III, 14s ff.).
lflCfr. Milasch Pcisic. Kircken- 19 S. C. P. F. May 10, 189a; Ma?
oogl
Original from
UNIVERSITY OF WISCONSIN
80 ECCLESIASTICAL PERSONS
St
son of a supposed vow, but in virtue of positive ecclesias-
tical law.20 In virtue of the obligation of perfect chas-
tity, every morally imputable act, whether internal or
external, directed against that obligation, involves a pro-
fanation of a sacred person and is, therefore, sacrile-
gious.
(2) Every valid marriage contracted by one in minor
orders reduces the latter ipso iure to the lay state, thereby
depriving him of all clerical rights and privileges and
absolving him from clerical duties." The Code says,
" unless the marriage is null and void by reason of vio-
lence or fear.' This, however, must not be presumed,
but proved. Hence, though one affected by that impedi-
ment may be thoroughly persuaded of the invalidity of
a marriage thus contracted, he could not continue to con-
duct himself as a cleric, but would have to await the
final sentence of the ecclesiastical court.
(3) A married man, in order to receive higher orders
licitly, now needs an Apostolic dispensation. If no dis-
pensation was obtained, such a one, if ordained, is ipso
iure debarred from the exercise of the order received.
Here the Code is somewhat stricter than the old law,
which permitted a married man to receive higher orders
if his wife consented and the bishop sanctioned the vow
of chastity to be pronounced by the wife." Although the
married state is not, properly speaking, an irregularity,
it is an impediment to holy orders," dispensation from
which is reserved to the Apostolic See, and therefore the
'• 1807 {Am. Eccl. Rev., 7, 66; 18, ligioui order if the husband
67). made a bishop; this requisite was
toS. Th„ TI-II, q. 88, a. 11; extended to all wives whose age
Heiner, K.-R., I, 233; cfr. can. 114, might cause misgiving, and only
I I. after the age of fifty tbe suspicion
21 Cc. j~3, X, III, 3. seemed removed.
« Cf. c s. X, III, 33; c. 6, h. t. 28 Can. 087. »#.
III, 3a required profession in a re-
jle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 134 81
■
married and ordained man remains suspended until the
Holy See has provided; otherwise he would become ir-
regular ex capite delicti.24
The next canon logically determines the cohabitation
of clergymen with women. St. Paul mentions the fact
that the Apostles kept a woman, a " sister,'1 about them.*5
These women were probably virgins who led a life of
celibacy and administered unto the temporal needs of the
clergy. They were called " znrgines subintroductae" and
are mentioned in the epistle of the bishops against Paul
of Samosata as women of suspicious character. There-
fore it is not surprising that the Council of Nicaea (325)
thought it necessary to regulate the relation of clerics to
their female relatives. Besides those mentioned in § 2 :
mother, sister, aunt" (on either side), the Nicene canon
also admits other women of good character. This was
extended to the second degree of consanguinity and af-
finity, not by any written law, but by the canonists and
doctors." Our Code admits any woman whose moral
character and age ward off suspicion. Concerning age
the law does not determine a limit. For what is gener-
rally known as the "canonical age," no canon can be
quoted. However, since twenty-four is called aetas su-
peradulta, this might be taken as indicating the canonical
age. Concerning female relatives no age is stated.
The next paragraph reserves the judgment concerning
permission to retain or visit women entirely to the
bishop, who, although he cannot forbid clergymen to have
women housekeepers,28 has a right to know who these
p
".
24 Can. 985, 7°. «Cf. t. Schcrer I, 37*i Wernt,
25 CI. I Cor. 9. s: X. III. 2, Dt IT. p. 298 0- ed.); the Code allows
cohab. cleric, tt mul. priests to have a female house-
M Euseb., Hist. Eccl., VII, 30; keeper, but does not determine the
e. 3, c 16, Dist. 32. canonical age.
2T Bened. XIV, inf., 83, o. 6 f
§le
Original from
UNIVERSITY OF WISCONSIN
82 ECCLESIASTICAL PERSONS
women are and what is their reputation. Gerics must
obey the Ordinary if he should forbid them to keep or visit
a certain person. One who stubbornly refuses to obey
his bishop is presumed to be a concubinarian. Strictly
speaking, one is contutnax only if he refuses to appear
before the judge who summons him. Therefore one
must be properly summoned and have received the sum-
mons before he can be declared contumacious. And even
c
if he should be declared contutnax, the presumption is a
simple one, not iuris et de iure.** But this belongs to
legal procedure.
The last of the three canons recommends community
life to priests, doubtless as a preservative of clerical con-
tinency. What has been said concerning the chapter on
canons may suffice to prove the intention of the Church.
Be it also mentioned that pastors and assistants should
live in the same house.80
divine office ( breviary)
Can. 13
Clerici, in maioribus ordinibus constituti, exceptis iis
de quibus in can. 213, 214, tenentur obligatione quotidie
horas canonicas integre recitandi secundum proprios
et probatos liturgicos libros.
--1
The clergy are the mediators between God and men,
and the office of mediator involves the duty of praying
according to the example of the Apostles.81 Prayers in
common were cultivated especially by the monastic insti-
tutes, but also in churches by the clergy assigned to them.
Justinian expressly inculcated that duty in his Code."
» Cf. cc. 184a ff; 18*5 ff; 21761!. 81 Cf. Acta «, 13; 3, 1; 10, 9.
SO Cf. c. 476. 5 5. S3 L. 4a. 6 10, Cod. I, 3.
v ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
>gk
CANON 135 83
The chapters of canons established in the eighth century
practised public prayers, mostly according to the Rule of
St. Benedict, in their churches. The Decretals urge the
same duty upon the priests of cathedral, collegiate, and
regular churches.33 These texts prove the obligation of
choir service, but are silent about the recital of prayers.
The Council of Basle (1431-49) enacted that duty, but
it did not establish a universal law.84 Benedict XIV de-
duces the obligation of the private recitation of the divine
office, incumbent upon all clergymen in higher orders,
from " ancient tradition and immemorial custom," rather
than from any written text, and adds that the Oriental
Church has no law to that effect.80
The name Breviary occurs since the time of Gregory
VII (1073-1085). The Roman Breviary contains the
rules according to which it must be recited. It must be
used by all clerics except those who have a special privi-
lege for using a different book or a practice of at least
200 years previous to Pius V's Constitution " Quod a
nobis" (July 9, 1568). Pius X by his Const. "Divino
afftatu" (Nov. 1, 1911) rearranged the Psalter according
to the early and traditional idea of its weekly recitation.
The obligation of reciting the Breviary privately has
now become a universal written law, binding every cleric
from subdeacons onward, except those who have been
reduced to the lay state or are freed on account of having
been ordained by force. A dispensation may be granted
by the Holy See, and for a time and in particular cases
also by the Ordinary.
■8 Cf . cc 1, 9, X, III, 41; c. 1, B&umer, Ceschichte des Brnntrs,
Clem. Ill, 14. 1895.
■4 Sets. 21, c. 5; cfr. v. Scherer aft" Eo quamtis," May 4, 1745,
I, 386; Wcrw, II, 373 (1. ed.); (Biiii., Mcchl., i8a6, III, 147, |43).
Coth. Eneycl., %. v. "Breviary";
jfe
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
£4 £COXmST3Q^L JERSC8CS
Cajk. J3O
I j. Canoes ckrra oe&cgfrga ratrirrani eccjcsuEstkaim,
tcvusiaus: jeg>.j=sai r-»'.vru=. uynBaenic-iies e: OtIl-
»*rx iiuca prae&cripta, 4c£c3*nt, tvns*— -zr: w - :.arryi-T.
•..•• ■.«..*■/* ':; rf^r. x,;,.'V.™ =ktci tine: ierxEt
getAWt, ** capLUgrtec vaaap-'i'jez. c^ru-r «,"~"*gTt,
$ su Amsak> at HMrfur; sacs id ipns a aare ast apo-
tfco&e p*iri*^*v ait cmccarau.
$ 9, Ckr*c* sainore* qai propria fin r re cne kgi-
tMM CM— Jutitatm trrlfi— lir urn ct la—— caaate-
rictf, *ec# ab Ord&ario sneeri. sese ir.tr* -e-serr. clo-
4*v*fmt9 ipto iure € «tata clerical <iwalmd.
A dUiinci <Urkol 'ftrb, uvtd by tie ciergy odsxSe of
iim touyMztrj, va» h&r*A"XKA £*sA the sixxh ceatcry.
It originkly oontUted of the old Roman dress: a tznjc and
a loof white under garment with or whhoat sJeeves. In
tJMrvK of tin* irony councils and synods passed enact-
nt+nu on the tttf/ject, the &*t being the Tridentine Coun-
cil, which darted that the clergy should wear a dress
proffer to their ttatc, in order to show by the decency of
tbdr outward habit the probity of their interior con-
duct.** Sixtui V styled that dress vestis talaris or cas-
•ock.w The Third Ilenary Council of Baltimore enacted
into positive law what may be called the legitimate cus-
tom of this country, the wearing in public or on the street
of a coat of black or sombre color, reaching to the knees,
with a Roman collar. Religious, too, are expected to
conform to this custom." The tonsure is not prescribed
n
MCfo e. 15. X, III, 1; c. *, '5*». I a; cfr. Bcucd. XIV, "Ad
Cl*m. Ill, 1; Cone. Trid., Kr*. 14, militant ii," March 30. 174*. M-
a 6, Dt R$f. *» Acta »t Dtcrtto, a. 77.
•T " Cum tarroianctam," Jta. Q,
sd by GoOgle
( * J ., Original from
UNIVERSITY OF WISCONSIN
p
CANON 137 85
in our country. Concerning the hair, the old canons, in
warning against unbecoming vanity, used the phrase
" comam ne [clerici] nutriant." " The new Code is silent
as to beards and wigs, and hence this matter is left to
the prudent judgment of the Ordinary or to a council *°
Rings, cither with or without gems, are permitted only
to those whom the law or an Apostolic privilege has en-
dowed with the right of wearing them. Hence only car-
dinals, bishops, and blessed abbots are allowed to wear
them at Holy Mass,41 while prothonotaries non partici-
pantes, doctors, and abbates non benedicti are not allowed
to wear them at Mass.42
The last paragraph deals with those in minor orders
who doff the clerical dress and tonsure and refuse to
obey the injunction of the bishop to reassume them
within a month. This is a modified repetition of the
decretal of Pius IX, published a. d. i860.
OCCUPATIONS AND AMUSEMENTS FORBIDDEN TO THE
CLERGY
Can. 137
A fideiubendo, etiam de bonis propriis, clericus pro-
hibetur, inconsulto loci Ordinario.
The ancient civil law as well as the Decretals forbade
the clergy to give bail,48 but made some exceptions in
favor of fellow-clerics and their own churches, as well as
aoCfr. c. 22, Dist. 33; c 7. X. 42 S. R. C. Feb. 13. 16*5 (Bar-
Ill, 1. bota, Apost. Die. p. 26); Pius X,
40 Formerly the wearing of a wif "Inter multiplices," Feb. 37, 1905,
required an Apostolic indult; cfr. n. 4, 27, 28, 31, 47-49.
Richter, Triti., p. 184, n. ia; Bened. 48 Nov. 133, e. 6; c. 1, X, III, 22;
XIV, Df Syn. Diotc, XI, 9. Engel, III, 22t n. 4.
41 Cf. c Bltj |a.
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
86 ECCLESIASTICAL PERSONS
for their own property and person. The Code doubt-
less must be given a stricter interpretation because of
the»general terms in which it forbids the practice. Hence
every kind of bail, " whereby a man obliges himself,
his heirs, executors and administrators, to pay a certain
sum of money to another on an appointed day," " is for-
bidden except with the permission of the bishop. This
condition must also be observed if a clergyman would
give bail on his personal, patrimonial or parsimonial prop-
erty. This ruling may seem harsh, but cases brought
before die Roman Curia prompted a severer course in
order to protect the clerical state from slanders and in-
sinuations which are never so rife as when a clergyman
makes mistakes in money matters. This and the follow-
ing canons are all inspired by the hvofold purpose of
safeguarding the decorum of the clerical state and preserv-
ing its members from troublesome distraction which might
impede their fruitful activity in the sacred ministry.
Hence:
Can. 138
Clerici ab iis omnibus quae statum suum dedecent,
prorsus abstineant ; indecoras artes ne exerceant ; alea-
toriis ludis, pecunia exposita, ne vacent; arma ne
gestent, nisi quando iusta timendi causa subsit; vena-
tioni ne indulgeant, clamorosam autem nunquam ex-
erceant; tabernas aliaque similia loca sine necessitate
aut alia iusta causa ab Ordinario loci probata ne in-
grediantur.
Of
The principle previously stated is here announced in set
terms, whereupon five occupations are specified which
are more or less unbecoming to the clerical state. These
4* Blackstone-Cooley, /. c, II, 340.
oogle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
Q
CANON 138 87
occupations comprise all professions or arts which, in
the common estimation of the people, are exercised only
by a low class of men or involve a degradation of the cler-
ical state. Such are especially the profession of actors
and the trade of saloon or innkeepers, butchers and exe-
cutioners.45 Games of hazard, if connected with staking
of money, are prohibited. But moderate card playing,
chess, billiard or tenpins is not forbidden if no scandal —
of course pharisaical scandal cannot always be avoided —
is given and no excess in time or money involved."
The carrying of arms, tire arms as well as others, is for-
bidden also in the Decretals.47 But we remember that,
about ten years ago, when there was a morbid agitation
against the clergy in Italy, and especially in Rome, many
priests received license from the Pretor to carry a re-
volver. This was purely a means of self-defence; hence
the very reasonable clause in the new Code.
Hunting and the chase are distinguished; the former
is not entirely forbidden, but should not be indulged in.
Indulgere implies frequent repetition. Hence, occasional
hunting without dogs, or only one dog, and without a
great apparatus, may be permitted if no dangerous con-
sequences are to be feared. But the chase, i. $., clamor-
ous hunting with dogs, hawks, and falcons for the pur-
suit of large game, bears, deer, foxes, etc., is forbidden.48
Saloons and similar places must be avoided by clerics.48
On that point we believe that in our country the neces-
sary precautions are not wanting. Neither are the sa-
loons, at least many of them, in the U. S., places where
4tCfr. cc. 1-3. D'at- 34! c. 1, 49 Cf r. X, V, 24. De clerico v«n*i-
Diat. 35: c. 1. X, III, so: c. 1, tott.
Clem. Ill, 1. 4BCfr. c. 2, Dirt. 44; c. 15. X,
46 C. 1, X, III, 50; Cone, Bait III, 1; Cone. Trid., Scaa 04, c la.
J/, n. 754- *>« R*f-
*t C. a. X, in, i.
►ogle
£ * ^ v -J » Original from
UNIVERSITY OF WISCONSIN
88 ECCLESIASTICAL PERSONS
clergymen should be found for purposes of amusement.
The bishop might proceed against a clergyman who would
not heed the prohibition of frequenting saloons after a
paternal and peremptory admonition.50 But on the other
hand it is not commendable to decree suspensio ipso facto
incurrenda for transgressors of this rule, because that
penalty should be meted out only in grievous cases, lest it
lose its effectiveness. A canon of the IVth Lateran
Council forbids drinking bouts and drinking at com-
mandfM a practice which resembles our so-called " treat-
ing*"— a fertile source of drunkenness.
Can. 139
§ i. Ea etiam quae, licet non indecora, a clerical!
tamen statu aliena sunt, vitent.
§ 2. Sine apostolico indultu medicinam vel chirur-
giam nc excrceant; tabelliones scu publicos notarios,
nisi in Curia ecclesiastica, ne agant; ofiicia publica,
quae exercitium laicalis iurisdictionis vel administra-
tionis secumferunt, ne assumant.
§ 3. Sine licentia sui Ordinarii ne ineant gestiones
bonorum ad laicos pcrtinentium aut officia saccularia
quae secumferunt onus reddendarum rationum; pro-
curatoris aut advocati munus ne exerceant, nisi in
tribunali ecclesiastico, aut in civili quando agitur de
causa propria aut suae ecclesiae ; in laicali iudicio cri-
minali, gravem personalem poenam prosequente, nul-
lam partem habeant, ne testimonium quidem sine
necessitate ferentes.
§ 4. Senatorum aut oratorum legibus ferendis, quos
■
50 Aicfcner, /, c, f yj, a. might be permitted in honor of
Si C 14. X. III. 1 to which Val* prince or country, if drunkenness
lensis (Paratitla, III, i, n, 7) re- is avoided.
marks that some aequales Kaustus
v ,|rt Original from
UNIVERSITY OF WISCONSIN
>gle
CANON 139 89
deputatos vocant, munus nc sollicitent neve acceptent
sine liccntia Sanctae Sedis in locis ubi pontificia pro
hibitio intercesserit; idem ne attentent aliis in locis
sine licentia turn sui Ordinarii, turn Ordinarii loci in
quo electio facienda est.
The principle stated in the first paragraph is based on
St. Paul's exhortation to Timothy: "No man, being a
soldier to God, entangleth himself with secular busi-
ness/' " Secular business affairs are apt to distract a
priest from the one necessary occupation, the sacred min-
istry. Hence the prohibition of offices which, in them-
selves, are not incompatible with the dignity of the cler-
ical state — who would venture to say, e.g., that a scna-
torship is degrading? — yet, because of their unwhole-
some effect upon the priestly office, should be accepted
only in obedience to the Church.
The professions or occupations forbidden to clerics in
can. 139 as ° foreign to the clerical state " may be divided
into two classes : such as require an Apostolic indult and
such as merely demand the consent of the Ordinary.
An Apostolic indult is required for the practice
of medicine, and the Code makes no distinction be-
tween medicine and surgery as to the strict necessity of
obtaining the papal permission. Hence no matter
whether a cleric wishes to practice simple medicine or sur-
gery (formerly called medicine "cum adustione et in-
cisione " 5a) he needs an Apostolic indult. There can be
no doubt that the so-called Kneipp doctors and other
u naturopaths " fall under this prohibition, B* because the
law is aimed at the exercise of the medical profession as
such and intended to safeguard the honor of real physi-
BJ II Tiro, a, 4. 5« Cfr. Acta 0 Deereta Cone.
MCfr. c. 19. X, V, iat on ac- Bolt. Ill, n. 82; Bcned. XIV, Dt
count of the danger of irregularity. Syn. Dioec, XIII, c, 10.
ioogle
Original from
UNIVERSITY OF WISCONSIN
90 ECCLESIASTICAL PERSONS
cians against usurpers and bunglers. At the same time
it must be observed that exercere implies a habitual exer-
cise ; hence giving a dose of quinine or other drug occa-
sionally would not be exercising the medical profession.
The question may arise, Whom does the law require to
ask for an Apostolic indult? The answer is: all who
partake of the clerical state ; hence also lay brothers and
sisters, unless they merely act as assistants to physicians
in giving medicine or at an operation. If they practice
medicine of their own accord and on their own responsi-
bility, they need an Apostolic indult."
What about oblotes of religious communities? These,
though partaking in spiritual favors, are not religious,
and hence no clerics in the proper sense, supposing, of
course, that they have not received either tonsure or or-
ders. Therefore they may exercise medicine or surgery
without an indult.
Another profession which clerics may not adopt with-
out Apostolic permission is that of notaries public. It
was forbidden " to the clergy in higher orders by Inno-
cent III, and this prohibition is now extended to all
clerics, and consequently also to religious. The Code
does not except those who act as notaries in favor of
their own churches or monasteries if cases are taken to
the civil court.57 Only in ecclesiastical courts are clerics
allowed to act as notaries public.
A third prohibition refers to public offices which in-
volve civil jurisdiction or administration, e. g.t those of
judges and administrative functionaries, mayors, govern-
ors, etc.68 This law includes senators and deputies in
DQ tfr. Iiacfaofen, Compendium canonists admit an exception.
Juris Reg-, p. 130 f. gs Cfr. c. 4. X, III, 50: **M*W-
a« C. 8, X, II!, so. arius prmcipis . . . iurisdictiones
67 Engel (III, 50, n. 5) and other jocculares.'
w
jle
v , j t Griginalfrom
UNIVERSITY OF WISCONSIN
CANON 139 t>x
Italy, where Catholics are expressly forbidden by the
Holy See to solicit or accept such offices.
All these occupations, then, in order to be licitly as-
sumed by a cleric, require an Apostolic indult. The fact
that the clause " sine apostolico indultu " is placed at the
head of § 2 proves that the legislator wishes to include
all the offices that follow.
§ 3 enumerates the offices for the exercise of which
on the part of a cleric the permission of the Ordinary is
required. Note that the text says " sui," not " loci Or-
dinarii" The Ordinary of exempt religious is their
superior, not the bishop of the diocese.
(1) Clerics may not be managers of business affairs
or of properties which belong to laymen or necessitate the
rendering of an account to civil authorities. To this
class of affairs belongs the guardianship of orphans and
widows,69 which a cleric cannot undertake without the
permission of his bishop or superior. Forbidden to cler-
ics on the same score are the offices of president, di-
rector, treasurer, secretary of banks, even though these
be of a charitable or social type (rural or farmers'
banks, etc.).00
(2) A cleric is not allowed, furthermore, to act as
procurator or by proxy in another's name by special
mandate, or as attorney, unless for himself or in defence
of his church.81 We may safely extend " propria causa "
to his next relatives, who because of blood relationship
may be considered as one person with him.w
(3) In criminal cases which imply either capital pun-
ishment or confinement in a penitentiary — which pun-
ishment generally entails infamy — a cleric is not allowed
B9 Cfr. c. 2, X, IIT, 50. «i C. a, X, III, 50; S. C. C, Aug.
00 S. C Consist., Nov. 16, 1910 4, 1883, Nuttins Ciuniac.
{A. Ap. S., II, 910). M Aichncr, | 7Z-
dbyC >Ie
% ,| , Original fro ni
UNIVERSITY OF WISCONSIN
-'
■
pi
92 ECCLESIASTICAL PERSONS
to act as a witness, unless called by legitimate authority
(the prosecuting attorney or judge), which would be a
case of necessity. But even in such cases it is commend-
able to ask the Ordinary's permission if time permits.
(4) The last case which requires the permission of the
Ordinary is the solicitation and acceptance of the offices
of senators and defntties. There is not much danger in
our country that clergymen will be elected to Congress;
but if one wished to become a candidate, he would need
the permission of his own Ordinary as well as that of the
Ordinary of the district — if this were located in a dif-
ferent diocese — for which he sought to be elected.
amusements
Can. 140
Spectaculis, choreis ct pompis quae eos dedecent,
vel quibus clericos interesse scandalo sit,, praesertim
in publicis theatris, ne intersint.
Unbecoming to the clergy are all shows which offend
against the divine or the natural law, or detract from the
honor and respect due to the Church and her ministers."
The term spectacula comprises all kinds of mimic rep-
resentations, either masked or not, by professional actors,
likewise gladiatorial contests, bullfights and prize-fights.
Concerning this last-named kind one might be tempted to
condemn them as immoral, yet it would be impossible
to prove their immorality from the viewpoint of natural
law. Hence we are not ready to pronounce them simply
unbecoming.84 Of course a bishop might forbid his
-J ,
* 68 Cfr. Bcned. XIV, Da Syn. which no one is allowed to expose;
Dioec, XI, 10, ii f.; In:!.. 37; 76. however, properly conducted prixe-
0* The point of immorality would fights does not necessarily involve
only arise from the danger to life, risk of life, as statistics show.
ioi >gle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CANjON 140 93
clergy to attend prize-fights if he were persuaded that the
majority of his flock strongly opposed them.
Choreae are balls and dances. The well-known decree
of March 31, 1916, is pertinent to the subject; but the
Code uses more general terms, although we would not
assert that said decree is now ineffective.85 That clergy-
men would take an active part in dances or arrange such,
although it may have happened in bygone days,86 is, we
believe, no longer to be feared.
Pompae are festivities celebrated with much ado and
display, with eating, drinking, and musical programmes;
for instance, at weddings or other occasions of a purely
worldly character.87 If such affairs take place in public
theatres,88 the clergy have an added reason for keeping
away. Theatres are now often turned into moving-
picture shows, many of which are of a low type, injurious
to eyes and nerves and destructive of moral and physical
health. Of course theatrical representations by school-
children, college students, or members of a parish are
not affected by the Code. But the holy seasons of
Advent and Lent and the ember days should be respected
by the latter class.
Can. 141
§ 1. Saecularem militiam ne capessant voluntarii,
68 Cf. A. Ap. S., VIII, 147 *• take neither the initiative nor a
Card. Gasparri in his notes also re- passive part, are sot forbidden, even
fere to that decree (p. 35, n. a). if given for a charitable or re*
The dispositive part of said decree ligious purpose by lay people. This
reads: "All clergymen, secular as is the tenor of the text, and noth-
well as regular, are strictly for- nig more.
bidden to promote or favor dances 00 Cfr. Bened. XIV, Dg Syn.
or balls, even if these should be Dioec, XI, 10, 14.
held to help and support a good 07 Cfr. cc. 14, 15, X, III, Ij c. 3,
and pious cause or for any other Dist. 23.
purpose; besides all the clergy are 08 Cfr. c. 12, X, III, 1 (theatres
prohibited to attend such dances if in churches); Cone. Trid., Sess. aa,
arranged by laymen." But dances c. 1 Da Rtf.
in geneial, in which the clergy
D
'■-.
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
94 ECCLESIASTICAL PERSONS
nisi cum sui Ordinarii licentia, ut citius liberi evadant,
a
id f ccerint ; neve intestinis bel lis et ordinis publici per -
turbationibus opem quoquo modo ferant.
§ 2. Clericus minor qui contra praescriptum § i
spontc sua militiae nomen dederit, ipso iure e statu
clericali decidit.
The first clause of the first paragraph and the second
paragraph treat the same subject, vis.: volunteering for
military service, which now-a-days is mostly done by
enlisting in the army or navy. Some countries permit
clerical students to escape further service by volunteering
for one year. If a cleric in minor or major orders
should wish to choose this course, he must first obtain the
permission of his Ordinary. A cleric in minor orders
who voluntarily enlists against the prescription of § iF
forfeits the clerical state.09
To participate in internal troubles (revolutions, etc.)
is strictly forbidden to the clergy. Leo XIII advised the
Spanish clergy not to allow themselves to be wholly ab-
sorbed by party spirit lest they might seem to care more
for human than for heavenly things.70 As to political
activity in the U. S., which a clergyman might be called
upon to take up, a time may come when the freedom of
our schools will require the clergy to exert political in-
fluence. The social question, too, is becoming a " burn-
ing " problem in public life. In any combat for principles
the direction of political action will rest, first and above
all, with the hierarchy. Uniform procedure, firm and un-
fl9 Can. 188, 6,— Dtcidtri a performed privately, is no longer
statu clerical*, it seems to us. in- sufficient,
volvca a radical and absolute loas TO" Cum mult*/' Dec. 8, j88j;
of that state, wherefore the reai- " Pottqvam eatkolici," Dec. to,
suming of the clerical garb, which 1894; S. C. P. l-\. Instr. of Nov. 23,
formerly (cfr. Bened. XIV, Lc 1845, n. 7; S. C C, Jul 12, 1900.
Syn. Diotsc, XII, 3, 1) could be
oogle
, .j,.. Original from
UNIVERSITY OF WISCONSIN
CANON 141 ? 95
flinching, will lend great strength to the cause of the
Church. But moderation and loyalty must always be
combined with firmness, and the clergy will usually be
safe if they follow the guidance of the hierarchy.
In purely political issues arising between parties the
clergy are free, and the bishop cannot compel them to
follow his opinion, much less forbid them to vote.
For the right of voting is, radically at least, an inborn
right, inherent in a citizen by the fact of his belonging
to the State. And the State we hold to be of natural or
divine origin. Hence the clergy, remaining citizens
though clerics, cannot be deprived of that natural right
by any authority, except by way of penalty.
However, we would-not deny ecclesiastical authorities
the right to forbid the clergy to vote in some particular
case which involves great disturbance to state or dio-
cese.71 But this only by way of exception. And what
we have said concerning the clergy in general, must fully
be applied to religious, for that mystic mors cvvilis has
now ceased in most countries.
p
negotiatio prohibita
Can. 142
Prohibentur clerici per se vcl per alios negotiationem
aut mercaturam exercere sive in propriam sive in
aliorum utilitatem.
This is the negotiatio prohibita, the forbidden commer-
cial trading, which was proscribed by many synodal acts.
That in the beginning of the Church the " Apostolic
71 Leo XIII, " Cum multa "; account of political activity, neglect
Heincr, /. c, I, 229, justly remark! their clerical duties or transgreaa
that the bishops are empowered to the bounds of Christian charity and
see to it that the clergy do not, on truthfulness.
§le
£ * ^ * ,|,» Original from
UNIVERSITY OF WISCONSIN
96 ECCLESIASTICAL PERSONS
St
laborers " were such not only in the spiritual but also in
the material sense, like St. Paul the tentmaker, was but
natural. Later on, some clerics supported themselves on
their patrimony, whereas others had to work for a living
either in the fields, or at a trade, or in some other way.
In the third century some bishops devoted so much time
to their worldly affairs that complaints were heard, and
the Council of Elvira (ca. 300) issued a special decree
(can. 19) on the subject.72 The Christian emperors for-
bade the clergy to engage in trading throughout the
Roman empire.75 Diocesan synods and provincial coun-
cils prohibited clerical participation in agricultural trades
and businesses of a purely commercial character.7* Nev-
ertheless, says Benedict XIV, some clergymen are moved
by such insane avarice that, not in their own name, but
under the cloak of an assumed name — "sub alieni no-
minis velamine " — setting aside all fear of God, they en-
gage in forbidden occupations.75 Hence the Church has
never ceased to admonish clerics to hold aloof from
business and trading.
What, precisely, is meant by negotiatio and mercaturaT
These terms are generally understood to mean habitual
buying and selling for the sake of gain — " turpis lucri
gratia." Hence, according to the teaching of canonists,
a cleric is not forbidden to sell stock or produce grown
on his own farm. He may even buy cattle (feeders),
fatten and sell them or their offspring in the market.
But to purchase or rent land in order to raise wheat or
corn for the sole purpose of selling it would be negotiatio
TaFunk. Manual of Church His- X, III, 1; c. 6, X, III, 50; Cone.
tory, 1913, I, 51. Trid., Sess. 22, c. 1, De Ref.
T» Cfr. II- incr . /. c, I, aaj. 16 " Apoitolieat Sertilulij," Feb.
T*Cfr. cc flff., Dist. 88: c 16, as. I74N |i (Butt., Prati, L 38).
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 142 97
illicitae Now-a-days it is not forbidden for a cleric
to lend money at the usual rate of interest
An important part of our commercial life is taken by
stock companies, which offer shares, stocks and bonds in
every shape and form, as the advertisements prove ad
nauseam. Some of these companies are solidly estab-
lished and in a flourishing condition. Is a clergyman
allowed to buy their stocks? We see no wrong in this, if
the shares are bought with the sole object of getting the
dividends.71 But to buy for the sake of speculation is
forbidden. It is also forbidden for a cleric to be a
director of such a company, because this would entail a
worldly and perhaps distracting occupation, not to speak
of the financial risk. Gambling is most detestable in a
clergyman, and one who has grown rich by such illicit
means should be avoided by his fellows.78
The Code appears very strict, to judge from the word-
ing, " sive in propriam sive in aliorum utilitatem." How-
ever, we believe our interpretation is borne out by the
common teaching of canonists. For the words " negotia-
te and mercQtura" must be taken in their proper sense,
and what the authors allow does not fall under trading
or business, strictly interpreted. However, there can be
no doubt that clerics are forbidden to trade or transact
business in the proper sense by giving their money to
others that these may traffic with it for the advantage of
the real owner.
7a Barbosa, Tractatus Varii, Ap- ft**., 1890, p. 148 f ; Buve>, Le Com-
pell. 16* (p. 262). Of course a merer, les Operations de Bourse el
cleric ia not allowed to sell wine. le Clerg£, in the Revue Canonique,
oil, or other products at retail. Feb., 1899.
Heiner, U e. T8 Bened. KIV, " Apost. Seivi-
TT SanKuineti, Juris EecU Insti- tutu," I. c.
jfe
£ " ^ v -J,-. Original from
UNIVERSITY OF WISCONSIN
N
■
!>8 ECCLESIASTICAL PERSONS
absence from the diocese
Can. 143
Clerici, licet beneficium aut officiurn resiclentiale non
habeant, a sua tamen dioecesi per notabLIe tempus sine
licentia saltern praesumpta Ordinarii proprii ne dis-
cedant.
Can. 144
Qui cum licentia sui Ordinarii in aliam dioccesim
transient, suae dioecesi manens incardinatus, revocari
potest, iusta de causa et naturali aequitate servata;
et etiam Ordinarius alienae dioecesis potest ex iusta
causa eidem denegare licentiam ulterioris commora-
tionis in proprio territorio, nisi beneficium eidem con-
tulerit.
In point of residence, as we shall see further on, the
law deals separately with different ranks of the clergy.
Canon 143 merely states the fact that the duty of resi-
dence is connected with certain offices or benefices, and
that every secular cleric belongs to a determined dio-
cese by incardination. Being ordained for that diocese,
he is supposed to have some kind of work assigned to
him or at least to be at the disposition of the Ordinary
under whose jurisdiction he lives. A protracted absence
from the diocese would, as it were, withdraw him from
that jurisdiction, and hence an Ordinary is entitled to
know his clerics' whereabouts.
What "notabile tempus" means may be inferred from
a comparison of clerical residence with quasi-domicile.
A quasi-domicile, as we have seen, is constituted by a
stay of about six or seven months in one place. A
" considerable time " for the absence of a cleric from
( ".vmiIp Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CANON 144 99
his diocese would, therefore, be less than six months.
On the whole, this term is very elastic according to the
comparison implied therein. But we believe four or five
months would be a u considerable time."
A presumed or probable permission is had when the
Ordinary knows of a clergyman's absence and does not
recall him, for then the latter may legitimately assume
that the bishop is willing to prolong his furlough. As
long as a cleric remains within the limits of his diocese,
he needs no permission.
Canon 144, the last of Title III, deals with the recall
of clerics to their own diocese. For such a recall there
must be a just reason, and natural equity must be ob-
served (naturali aequitate servata). Equity here can
mean nothing else but justice or fairness in determining
conflicting claims. The bishop of the diocese whence the
clergyman is to be recalled, might wish to retain him
because of his usefulness, and hence a conflict might
arise between the two bishops, which must be settled by
compensation or mutual agreement.
An Ordinary may, if there be a just reason, order an
outside cleric to leave his diocese, unless, indeed, he
has conferred an ecclesiastical benefice on him, which
■
would be tantamount to incardination.™
m
9
TOCfr. can. 114.
I Original from
1 K H '8ie UNIVERSITY OF WISCONSIN
a
N
TITLE IV
T
ECCLESIASTICAL OFFICES
After a cleric has been incardinated in a diocese and
endowed with clerical rights and duties, he may and
should be given an ecclesiastical office. For the clerical
state is not merely a speculative state, as it were, of idle
onlookers, but one with determined functions, which
vary according to the various hierarchical degrees, but all
tend to the realization of the end for which the Church
was founded The Church, therefore, is entitled to pre-
scribe the manner in which clerics are to be appointed to
the offices established, either divinely or humanly, within
her pale.
Hence the first chapter of Title IV treats of the nature
and provision of ecclesiastical offices.
Can. 145
§ 1. Officium ecclesiasticum lato sensu est quodlibet
munus quod in spiritualem finem legitime exercetur;
stricto autem sensu est munus ordinatione sive divina
sive ecclesiastica stabilitcr constituturn, ad normara
sacrorum canonum conferendum, aliquam saltern se-
cumf erens participationem ecclesiasticae potestatis sive
ordinis sive iurisdictionis.
§ 2. In hire officium ecclesiasticum accipitur stricto
sensu, nisi aliud ex contextu sermonis appareat.
100
p
§le
£ * ^ v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 146 101
Can. 146
De beneiicialibus officiis in specie, praeter canones
qui sequuntur, custodiantur insuper praescripta can.
1409 seqq.
What canon 145 says of an ecclesiastical office in the
wider sense, may be illustrated by a consideration of
certain offices which are no longer exclusively clerical,
v.g., those of fossores, hermeneutae, cantores, and
deaconesses. The latter, in the first two centuries,
formed a distinct category or class of ecclesiastics, though
without any hierarchical or liturgical distinction.1 The
offices of grave-digger, interpreter, and chanter were enu-
merated among the clerical orders, but gradually sank to
lay rank.1 Nevertheless, if singers perform their task
with a spiritual intention, and not for gain or vanity,
they may be said to exercise an ecclesiastical office. The
same holds true of janitors and organists. Laymen, ac-
cording to St. Peter, may be a "holy priesthood who
offer up spiritual sacrifices " a in the Church, and thus
act as functionaries of the Church at large.
However, the divine and human organization of the
Church contains a special class of persons for the per-
formance of strictly ecclesiastical offices. Three charac-
teristics single out these functions properly called ecclesi-
astical: (1) They are established by divine or ecclesias-
tical law; (2) they must be conferred according to the
rules laid down by the Church ; (3) they must communi-
cate some sort of ecclesiastical power.
(1) The Divine Laav, as stated above,4 singles out
xCtr. Wielaod, Dit Gtntt'xscht 9Tb., p. 165 f.; p. 170 "•
Enticickluno d*r tog. Ordmts B I Pet a, g.
Minora, 1897, p. 60 ff. 4 Cm. 1©8, | 3.
^
£ " ^ vnl/» Original from
UNIVERSITY OF WISCONSIN
102
ECCLESIASTICAL PERSONS
-
-
bishops, priests, and ministers; human law (or rather
ecclesiastical custom) has introduced other offices, partly
of higher, partly of lower rank.
(2) The rules according to which one may hold an
ecclesiastical office can only emanate from that power
which confers the rights inherent in that office. And
since these rights are of a spiritual nature, the power
which confers them is the spiritual society established by
Christ, or the Church. Hence to her must belong the
right to establish the mode and means by which a man
may obtain an ecclesiastical office.5 But it must be re-
membered that the Church employs human factors and
instruments in conveying ecclesiastical offices. Though,
e.g., the supreme pontificate and the episcopate are of
divine origin, yet the manner in which these offices are
conferred has been determined gradually by human agen-
cies, and historical facts must not be set aside for the
sake of a preconceived idea. All that is necessary is to
hold fast to the principle involved.
(3) An ecclesiastical office must convey ecclesiastical
power. This may be in the hierarchy of order, and thus
we have the episcopate, the priesthood, and the ministry
(i.e., the higher orders of deaconship and subdeaconship
as well as the four minor orders, with tonsure as a step-
ping stone) ; or it may be in the hierarchy of jurisdiction,
which is supreme and ordinary in the Sovereign Pontiff,
but dependent in the episcopate. Between these two there
are different shades of jurisdiction, which the lumen
mains has variously distributed. Every ecclesiastical
office involves some jurisdiction, though its real and full
nature appears only when exercised in foro externo.
The term " ecclesiastical office " is generally to be taken
tCone. Trid., SeM. 33, D§ Bcd.Hi*rch. #1 Or*., cc. 4. 7.
►ogle
Original from
UNIVERSITY OF WISCONSI
. i
CANON 146 103
in its proper sense as denoting ecclesiastical power.
The next canon (146) touches the beneficiary or mate-
rial element of ecclesiastical offices. Those who serve
the altar are entitled to partake of the oblations made for
the benefit of the altar.6 This fact led canonists to say
that an ecclesiastical office entails " the right to receive
a definite share of the ecclesiastical revenues."7 The
terms " office " and * benefice " were looked upon as cor-
relative and therefore used promiscuously.8 The Code,
however, justly speaks of the office in directo, and of the
benefice in obliquo, treating the latter as an ecclesiastical
thing (res) in the third book. But it adds that ecclesias-
tical benefices fall under the rules governing ecclesiastical
offices, the reason for which is evident from the mutual
relation of the two.
o I Cor. 9, 13. a Cfr. c. 9. C. 1, q. 3; c. I, X, V,
TCf. Aichner, /. c, |?6, 1. 36; o. 15, 6°, I, 3.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
N
■
CHAPTER I
appointment to ecclesiastical offices
Can. 147
§ 1. Officium ecclesiasticum nequit sine provisione
canonica valide obtineri.
§ 2. Nomine canonicae provisioais venit concessio
officii ecclcsiastici a competente auctoritate ecclesia-
stica ad normam sacrorum canonum facta.
Can. 148
§ 1. Provisio officii ecclesiastic! fit per liberam col-
lationem a legitimo superiore, vel per eius institu-
tional!, si praecesserit praesentatio a patrono aut
nominatio, vcl per eius confirmationem aut admis-
sionem, si praecesserit electio aut postulatio, vel tan-
dem per simplicem electionem et electi acceptationem,
si electio non egeat confirmatione.
§ 2. De officiorum provisione per institutionem ser-
ventur praescripta can. 1448-1471.
Can. 149
Electi, postulati, praesentati vel nominati a quibus-
vis personis ad ecclesiastica officia ne confirmentur,
admittantur, instituantur a Superiore infra Romanum
Pontifkem, nisi antea fuerint a proprio Ordinario ido-
nei reperti, etiam per examen, si id ius vel officii ratio
postulct aut Ordinarius opportunism iudicaverit
104
{ "annlp Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
■
-
CANON 150 105
Can. 150
§ 1. Provisio officii de iure non vacant is ad nor mam
can. 183, § i, est ipso facto irrita, nee subsequente
vacatione convalescit
§2. Nee promissio eiusdem officii, quicunque id
promiserit, ullum parit iuridicum effectum.
Can. 151
Officium de iure vacans quod forte adhuc ab aliquo
illegitime possidetur, conferri potest, dummodo rite
secundum sacros canoncs dcclaratum fucrit earn pos-
sessionem non esse legitimamv et de hac declaratione
mentio fiat in litteris coliationis.
These five canons define in logical succession canonical
appointment, its various modes, and some necessary
requisites, and also touch upon vacancy. That no one
can obtain an ecclesiastical office without canonical ap-
pointment follows from the necessity of the missio cano-
nical and the fact that the Church is an organization.
(1) Appointment implies three elements: (a) the
granting or conferring of an ecclesiastical office, (b) by
competent authority, and (c) according to canon law.
The manner in which an ecclesiastical office may be
conferred is: by free collation, investiture, confirmation
or admission.
Collatio libera, i. e„ a free appointment is made when
he who appoints has the right not only to appoint but
also to designate the person of the appointee. Thus the
bishops of the U. S. are empowered to designate pastors
and confer parishes on them.
Investiture or collatio necessaria takes place when the
clergyman to be appointed is designated by a third per-
G| , Original from
OO^K_ UNIVERSITY 0FWI5C0NSIN
106 ECCLESIASTICAL PERSONS
son, — either presented by a patron (jus patronatus) or
nominated by one who enjoys that privilege, as, for in-
stance, the King of Spain or the Emperor of Austria.
Confirmation or ratification follows election, properly
so-called, which takes place when a chapter enjoys the
right of electing the prelate.
Admission, finally, is attached to postulation, which is
a substitute for election when the person to be appointed
surfers from a canonical impediment.1
The collatio libera confers full title to an office, or as
the canonists say, jus in re — which means that the ap-
pointee holds a title to the office in question and may en-
ter upon it at any time. In other words, he only needs to
be installed (introductio corporalis). An equally valid
title is conferred by investiture, confirmation, and admis-
sion ; that is to say, one invested, confirmed, or admitted
receives the jus in re, whilst before these three acts he
had either a mere fits ad rein, as by presentation, nomina-
tion, or election, or no right at all, as in the case of
postulation.
(2) The competent authority in conferring major ec-
clesiastical offices {prelacies) is the Sovereign Pontiff;
lower offices may be bestowed by the Ordinary* This is
the general rule, which will be further explained when we
come to treat of various offices.
(3) An ecclesiastical appointment must be made ac-
cording to canon lam. Now the law, as will be seen
under the respective headings, has set up certain rules to
be observed in making appointments. Of these some
touch the office itself, others the act of conferring it,
and again others the necessary requisites in the candi-
date. As to the latter, the Code lays them down under
i G£ c 16, I 3, 6°. Ill, 4; ce ti, aWern*, Jut Dtcttt., XI, n. apr,
12. X. I, 6; c. 3. X, I, s; X, III, 7. p. 397. «i. 1.
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CANON 151 107
each office, and hence we refer to the respective canons.
But the Code mentions expressly one condition of the
office to be conferred, vis., that it must be vacant. Va-
cancy may be caused by resignation, privation, removal,
transfer and lapse of time (can. 183, §1), and may be
either de facto, or de jure only, or de jure et facto} An
office is vacant de facto when no one actually holds or
fills it, although some one has a lawful claim to it, e.g.,
a bishop exiled from his see. An office is vacant de jure
if, as stated above, according to can. 183, § i, an intruder
is in actual, though illegal, possession thereof. An office
is vacant both de facto and de jure if no one holds or
claims it.
An office not vacant de jure cannot be conferred; and
if it is conferred, the appointment is null and void be-
cause against the law. Even if the office becomes vacant
before the illegal appointee has taken possession, the
appointment is null because made at a date when there
was no vacancy. In consequence all acts, examinations
or concursus performed in the interval would have to be
repeated.
An office vacant not de facto but de jure can be validly
conferred after a declaratory sentence to the effect that
there is a de jure vacancy, provided mention is made of
that declaration in the letter of appointment.
A brief but important paragraph is § 2 of canon 150,
which precludes the so-called expectativae. These were
introduced towards the close of the Middle Ages, and
were nothing else but a practical conclusion from the
right of the Pope as supreme collator of all benefices.4
8 Cf. Engel, HI, 8, No. 2; Mas- 4 Cfr. c. 2, X, III, 8; c. 4, X, III,
chat-Giraldi, Institution*/ Canoni- 34; Wernz, II, n. 315 (p. 4*0, ed.
cat. III, 18, n. 1; cfr. cc. i, a, 6, 1).
X, III. 8; cc. 18, 28, 6°, in, 4-
oogle
Original from
UNIVERSITY OF WISCONSIN
108 ECCLESIASTICAL PERSONS
The popes sometimes granted letters or rescripts to
clergymen declaring that the bearer was entitled to a bene-
fice— for the office they usually cared but little — as soon
as it would become vacant. The possessor of such a let-
ter, given at first in the form of preces, then as mandates
(monitorial and even praeceptonae)t could lay claim
to a benefice as soon as it became vacant, but had to wait
(expectare) until it really was vacant.8 Abuses arose in
connection with these letters, and the rights of bishops
and abbeys were much hampered, wherefore the Council
of Trent set proper limits to these expectativae, admit-
ting them only in case of coadjutors to bishops and ab-
bots.* The new Code denies all juridical effect to any
such promise, no matter by whom made, including, we
suppose, the Pope himself, as far as he intends to bind
himself by such laws.
Finally, certain conditions are attached to the act of
appointment, but these are not here specified in general.
Some are mentioned in connection with special modes of
appointment. It may not be amiss to state the general
conditions as described by canonists.7
(a) The appointment must be made freely, deliber-
a.
ately, and absolutely, t, e., not extorted by fear or violence,
or by attaching conditions to the office which its character
does not imply and the appointer has no right to demand.
(b) An ecclesiastical office must be conferred gratis,
otherwise it savors of simony, which would nullify the
act. Chancellor's fees for expediting the document are,
however, permitted.
(c) The appointment must be made publicly. The
a Cfr. v. Schcrer, I, 283; Sag- 7 Cf r. Garzia, Dt Re Benificioria.
rauller, p. 272. P. VIII, c. I, n. 1; cc. 8, 9, 34;
« Trid., Scsi. 24, c. 19; Sew. 25, Wcrnz, II, n. 3*3 (p. 437, cd. 1).
c. 7, Dt Rtf.
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 152 109
new Code prescribes, in addition, that it must be made in
writing.*
(d) It must be made within the time determined by
the Code for the office in question.
.-
ART. I
T
FREE APPOINTMENT (LIBERA COLLATIO)
What is meant by free appointment has been explained
above, both as to the designation of the person and the
conferring of the office (collatio tituli). The present
article doubtless treats of minor offices, which have no
jurisdiction in foro externa, unless we include the office
of vicar-general in the number of offices liberae colla-
tionis, which is admissible.
Can. 152
Loci Ordinarius ius habet providendi officiis eccle-
siasticis in proprio territorio, nisi aliud probetur; hac
tamen potestate caret Vicarius Generalis sine man-
date special!.
The bishop or Ordinary of the diocese, according to
the general rule, has the right to confer all the ecclesias-
tical offices in his diocese, except those which the law
exempts from his power, or unless his right is contested
and the claim proved.
(a) Exempt from this power by law are cathedral and
collegiate chapters and the first dignitaries ; 9 concerning
canonicates the bishop must proceed in harmony with
his chapter.
(b) The bishop's right may be limited by incorporation
• Cfr. ce. 39a, 394, {a. 0 Cf. cc. 39a, 394 5 a.
G Original from
°°8IL UNIVERSITY 0FWI5C0NSIN
-
no ECCLESIASTICAL PERSONS
and juspatronatus, which however must be proved by
those who claim that right, as shall be seen in its proper
place. Incorporation for forty years would create a pre-
scription in favor of the corporation.10 As to the jus-
patronatus, what is necessary for our country to note on
this subject will be said later.
The above-mentioned cases excepted, the Ordinary is
free in choosing his vicar-general and other officials of
the diocese,11 appointing consultors, rural deans, pastors,
assistants and rectors.11
The v'\ car- general needs a special mandate to fill offices
which the Ordinary is entitled to fill. The mandate must
be given ad hoc, i. e., for the purpose of making the
appointment. This means a special commission for each
individual appointment, because each appointment is a
separate juridical act which has no connection with any
other. Therefore a general commission to appoint to
ecclesiastical offices would not be valid. Besides the
mandatories must follow strictly the terms of the man-
date, else he would act invalidly.1
na fr« ale- a tin ihahIH »!*»•■ <n<rila/il« IB
REQUISITES OF ECCLESIASTICAL OFFICE HOLDERS
i
Can. 153
§ 1. Ad vacans officium prornovendus debet esse
clericus, iis qualitatibus praeditus, quae a iure com-
muni vel particulari aut a lege fundationis ad idem
officium requiruntur.
§ 2. Assumatur, omnibus perpensis, magis idoneus
sine ulla personarum acceptione.
§ 3. Cum provisus caret qualitatibus requisitis, pro-
ioCt. X, II, 26, and Exjffel h. t. n. can. 455. Ii: can. 476, |j;
33- 480, |t.
dlCf. can. 366, B 2; can. 373. 18 Cfr. the commentators on X, I,
as Cf. can. .;..j, can. 446, |aj 38, Dt procttrotoribus.
oogle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
-■
CANON 154 in
visio est nulla, si ita cautum sit iure communi vel par-
ticulari aut lege fundationis; sccus est valida, scd per
sententiam a legitimo Superiore irritari potest.
Can. 154
-
Officia quae curam animarum sive in foro externo
sive in interno secumferunt, clericis nondura sacerdo-
tio initiatis conferri valide nequeunt.
Regarding the common law, our Code deals with the
requisites for the single offices in connection with these.
Note that no criminal, defamed, or censured ecclesiastic
can be appointed to an office.14 A particular law would
be that the appointee must belong to a certain nation or
family, or to the nobility, which played an important part
in German cathedral chapters. The law of foundation
is generally laid down in the founder's last will and testa-
ment, which the Church regards as sacred.
A brief remark on the " tnagis idoneus." The Code
almost studiously avoids the terms " dignior " and " dig-
nus" formerly used, and chooses the more flexible but
also more juridical expression idoneus, which certainly
is more in keeping with laws that deal with external
qualities rather than internal. One is fit, just as one is
worthy, if he lacks none of the qualifications prescribed
by law. The fitter (magis idoneus) of two candidates
is he who possesses these qualifications in a more con-
spicuous degree.18 But the law inculcates the duty of
appointing the fitter candidate only by way of admonition,
not prohibition, and, moreover, adds: "omnibus pcrpen-
14 Cfr. c. 7. X. I, 6; c. 4, X, I, 18 Cfr. Smith, Elements, I, n.
14: c. 4, X, V. 1; cc. f, 9. X. V, 27; 37*. P- 169: Weroz, II, o- 309 (p.
Wernx, II, n. 298 (p. 4041 cd. 1). 414, ed. i).
>Ic
f^" -. v J„ Original from
UNIVERSITY OF WISCONSIN
lis ECCLESIASTICAL PERSONS
sis." Therefore the judgment rests with the Ordinary,
who must consider the place, time, and circumstances of
the office as well as the qualifications of the clergyman to
be appointed. Sometimes a good business manager is
needed, sometimes an orator, sometimes an ascetic. One
parish needs a democratic leader, another a more aristo-
cratic one. If the bishop looks at the appointment merely
from the point of view of necessity and utility, without
sentiment, he may make a mistake but certainly will not
commit a sin or breach of the law.
■
time of appointment
Can. 155
OfTiciorurn provisio cui nullus terminus fuit speciali
lege praescriptus, nunquam differatur ultra sex menses
utiles ab habita notitia vacationis, firmo praescripto
can. 458.
The date is definitely fixed for higher offices as well
as for offices jurispatronatus ; but for minor offices of
free appointment the time of six months was generally
prescribed.18 The Code employs the term utiles, which
is analogous to tempus utile,17 and implies that if the
bishop should ignore the vacancy, or be prevented by a
reasonable cause from making an appointment, the six
months are to be counted from the time when he was
free to act. In can. 458 the Ordinary is admonished to
appoint permanent pastors, but allowed to put a vacant
parish in charge of an administrator if this appears to
him more prudent in consideration of the circumstances.
lftCfr. cc a, s 13, X, III, 8; c. " Cir. can. 35.
'.m. Clem. I, 5.
i
jle
£ * ^ * tL» Original from
UNIVERSITY OF WISCONSIN
CANON 156 113
INCOMPATIBLE OFFICES
When the rule of the Council of Chalcedon that every
cleric should be ordained and assigned to a definite church
or service was abandoned, avarice and ambition and the
evils attendant upon an incontinent clergy caused serious
abuses in the shape of the holding of several ecclesiastical
offices by the same person. The third and fourth
Lateran Councils 18 sought to remedy this unlawful prac-
tice, but the cumulatio beneficiorum flourished again dur-
ing and after the " Babylonian captivity," until the Coun-
cil of Trent19 enacted wholesome reform laws and
subsequent pontiffs enforced them.20 The purpose which
inspired the prohibition of holding two or more offices
was twofold : — to counteract avarice and ambition and to
provide efficacious and worthy ministers. The Code con-
siders this last mentioned reason, and for the rest merely
reenforces the Tridentine law.
Can. 156
§ 1. Nemini conferantur duo ofneia incompatibilia.
§ 2. Sunt incompatibilia officia quae una simul ab
eoclem adimpleri nequeunt.
§ 3. Firmo praescripto can. 188, n. 3, concessio alter-
ius officii a Sede Apostolica facta non valet, nisi in sup-
plici libello mentio prioris incompatibilis habeatur, aut
clausula derogatoria adiiciatur.
The law exempts no one, not even learned and deserv-
ing ecclesiastics," from the genera} prohibition. Besides
isCfr. c. 3, X, III, 4: cc. 5, 28, zoBened XIV, De Sym. Dioec.
X, III. 5; but "sublimes et litttratae XIII, 8 ff.; Wernz, II, n. 318 (p.
ptrsotta*" were exempt from the 426 ed. 1).
enforcement of c. a8. 21 Cfr. c. 28, X, III, 5. The Trid.
19 Seu, 7, c. 4; Seas. 34, c. 17 Council, however, excepted no one,
D n Rtf. not even Cardinal!. Seu. 14, c. 17.
( *r\nnl*> Original from
/^.-jOO^IL UNIVERSITY OF WISCONSIN
ii4 ECCLESIASTICAL PERSONS
the Code says, " nemini . . . conferantur" which means
that it is forbidden to confer, and not only to hold, in-
compatible offices.
Incompatible are such offices as exclude the possibility
of doing justice to both. For instance, (a) offices which
require personal residence, such as bishopries, canonries,
parishes; " (b) offices which, though they do not require
personal residence, are of the same nature and attached
to the same church, chapel, or altar; for instance, chap-
lancies or simple canonries28 (called beneficia uniformia
sub eodem tecto) ; 2i (c) a religious cannot be prior of
one monastery and abbot of another .**
Offices which require neither residence nor service in
the same church are compatible if one is not sufficient
for the decent support of a cleric.28
§ 3 adverts to a possible dispensation. This the Holy
See alone can grant. However, if a petition were sent to
Rome to obtain, for instance, two parishes, and it would
not mention the fact of the petitioner already being in the
possession of one parish, the rescript would be ipso jure
invalid,27 for the legislator is not supposed to act against
his own law, unless he makes special mention of the
exception, as by the clause, ex certa scientia, or de pleni-
tudine potestatis, or etiamsi de illis specialis, specifica,
individuate mentio sit facienda, or similar ones.88 The
mere clause motit proprio 29 would not have this effect.
Can. 188, n. 3, refers to tacit resignation implied in the
a
n7Vi<*., Sew. *<\t c. 17; cfr. tcr, I. c, p. 50, n. 9).
Richfer, p. 376 ff. SO Cfr. Richter, L c, p. 50 ff.
28 Trid.. Seis. 7. c. 4. D* R'f.; 27 Cfr. c. 23, 6", I, 4; c. a, Clem.
Richter, p. 50 ff.; Engel, III, 5, n. I, 9-
68. n Barbosa, Tract. Vat., el. 43;
M Cfr. c a8, X, III, 5; c. 9, X, cl. 59.
HI, 8. 2» Cfr. Can. 46.
IBS. C. C. 23 Febr., 1715 (Rich-
ogle
/■"* ^ v .J,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 157 115
acceptance and possession of an incompatible office.
Therefore, even if a papal rescript provided with the
necessary clause would have been granted to hold two
offices, if these offices were incompatible, one would have
to be resigned and vacated.
Can. 157
Officium vacans per renuntiationem vel per senten-
tiam privationis nequit ab Ordinario, qui renuntia-
tionem acceptavit aut sententiam tulit, valide conferri
suis aut resignantis familiaribus, consanguineis vel
affinibus usque ad secundum gradum inclusive.
This canon is a repetition of two Constitutions80 of
Pius IV and Pius V, and rests, though not verbatim, upon
the prohibition of the Council of Trent,31 which says that
every shadow of hereditary succession in ecclesiastical
offices is odious : — an effective blow against nepotism.
Familiares are such as serve one actually and depend-
ency and belong to one's household and live at one's ex-
pense.82 Consanguinei would be nephews and first cous-
ins, while afUnes could only be spoken of in case of a once
married clergyman. Upon none of these, either his own
or those of the resignatarius, may the Ordinary confer
an office made vacant by resignation or a sentence of pri-
vation. Neither may he admit any of the persons men-
tioned to a concursus.
The juspatronatus is not touched by this canon, nor are
the familiars and relatives of the vicar-general de-
barred,83 unless, of course, it was he who accepted the
80 Pius IV, " CupUntes," Oct- 82 Reiffenrtuel. II, jo, n. 122, well
iz, 1560, Si; Pius V, " Quanto says: " ut actu insennat et hi veluti
Eccletia," Apr. 1, 1568* 9 5- commrnjalU vivat txpensis dom-
Sl Trid.. Seas. 25. c. 7. Dt Ref.; int."
cfr. cc. 7. 10, 11, X, I, 17, Dt jS/to 18 Reiffenrtuel, I, 9, n. 118 S.
prtsbyt.
>Ie
% ,|,, Original fro m
UNIVERSITY OF WISCONSIN
■
116 ECCLESIASTICAL PERSONS
resignation or passed the sentence of privation, for the
canon speaks of the Ordinary.
Can. 158
Qui, alius neglegentiam vel impotentiam supplens,
officium confert, nullam inde potestatem acquirit in
nominatum ; sed huius iuridicus status perinde consti-
tuitur, ac si provisio ad ordinariam iuris normam per-
acta f uisset.
This canon supposes the right of devolution brought
into exercise either by negligence or inability of confer-
ring the office at the time prescribed by law. In such
cases the decretals" permitted the interference of the
metropolitan if a suffragan bishop failed to make an
appointment within six months. Our Code88 admits the
metropolitan's interposition only in the case of an office
to which advowson is attached, or juspatronatus. Speak-
ing, however, of inability the present canon seems to
take a wider range which may extend to the case of a
vicar-general conferring an office by special mandate.
Yet even this must be excluded, for the juridical position
would not be altered even if the vicar-general were al-
lowed to interfere. The canon, therefore, must be lim-
ited to the right of devolution. This, says the law, does
not create any juridical change in the status of the per-
son who has received an office in this extraordinary way.
The reason is that if a superior supplements the negli-
gence or inability of the lawful appointer, his right can-
not be stretched beyond what is expressly and explicitly
permitted by law, which admits the appointment but gives
no further jurisdiction.89
ti Cfr. X, III. 10, Dt tupplenda U Cfr. Can. 374, i°.
negligent ia proeht. ■« Rciffcn*tucl, 1, iot n. 10.
Go >gle
f ■ j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 159 117
Can. 1 59
Cuiuslibet officii provisio scripto consignetur.
Every appointment must be delivered in writing either
by the Ordinary or by his chancellor, and, of course,
properly signed and sealed with the diocesan seal.
N
■
ART. II
election
Can. 160
Romani Pontificis electio unice regitur const. Pii X
Vacante Sede Apostolica, 25 Dec. 1904; in aliis elec-
tionibus ecclesiasticis serventur praescripta canonum
qui sequuntur, et peculiaria, si qua sint, pro singulis
officiis legitime statuta.
I. ELECTION OF A POPE
The historical evolution of the process of electing a
Pope shows various phases.
(1) Up to the time of Nicholas I (1059-1061) not
only the clergy but also the senate and people of Rome
had a share in the election, whilst the emperor claimed
the right of ratifying it."
(2) Nicholas II endeavored to reduce the undue in-
fluence of senate and people. He reserved the right of
electing the Pope chiefly to the clergy of the titular or
cardinal churches of Rome, but did not entirely exclude
the emperor. His decree S8 expressly emphasizes * the
honor and reverence due to the King."
a
•TCfr. Manal. Coll. Cone, XIV, Publ., 1910, p. 8a f.
479; Bacbofen, Summa Juris Eeehs. M C. 1, DUt. ay
ogle
Original from .
UNIVERSITY OF WISCONSIN
1X8 ECCLESIASTICAL PERSONS
| (3) The decretals of Alexander III (i 159-81) went
further, and Gregory X (1271-76) finally reserved the
right of electing the Pope to the Cardinals of the Ro-
man Church. The so-called u Veto " or "jus exclusivae,
which the monarchs of Austria, France, and Spain
arrogated to themselves and by means of which they ex-
cluded candidates unacceptable to them through the
agency of one of their cardinals, was definitively abro-
gated by Pius X."
The question whether the Pope can legally designate
his own successor is controverted. Technically, there is
no doubt that the Pope has this right, because the mode
of election now in vogue is merely a human (ecclesias-
tical) law, by which the supreme lawgiver is not bound.
Practically and morally speaking, however, such a right
is not to be vindicated except in a very extraordinary
and urgent case. The Pope, being a human being, might
be too strongly inclined towards his family, and through
nepotism the papacy might be in danger of becoming
hereditary. Besides, the Pope is morally bound to re-
spect the jus qucrsitum of the cardinals, which would be
illusory if the Pope could set it aside at his pleasure.
Felix III (526-30) nominated his successor, but this
extraordinary act was prompted by peculiar circum-
stances.40
At present the law concerning the election of a Pope
is as follows:
I. The only authorized electors are the cardinals, who
must have received at least deaconship, unless permitted
by a special Apostolic indult to remain in lower orders.
Even censured cardinals enjoy a vote in the conclave,
but not such as have been deposed or have resigned their
»» A. Ap. S-, t. v. p. 35a; Acta Pii « Tueb. QuartaUehrift, 1903, p.
X, 1908, in, J89 0. 9i ff., Werm II, p. 651 (l cd.).
>Ic
£ ' ^ .. -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 160 119
dignity with the consent of the Pope. Absent cardinals
must be invited by the Dean of the Sacred College or by
another cardinal and admitted to the conclave as long: as
no election has taken place.
2. Concerning eligibility, the Constitution of Pius X
merely admonishes the electors to choose one whom they
deem fit. Since the end of the fourteenth century only
cardinals, and since Hadrian VI (1523), only Italian car-
dinals have been elected.
3. The voting takes place by scrutiny, which may be
performed only within the conclave. The latter point,
however, no longer affects the validity of the election.
Quasi-inspiration, compromise, and accessus seem to
be excluded, as the Constitution makes no mention of
these. The election is completed only when two-thirds
of the votes or suffrages, cast secretly and according to
the scheduled forms, fall on the same person. The vote
of the elected cardinal may not be counted. It is evident
that generally more than one scrutiny is required. The
ballots must be burned.
4. A purchased election would probably be valid, but
those guilty of that crime (simony) incur excommunica-
tion latae sententiae. The same penalty falls upon those
who in any way admit the abrogated u veto."
5. The cardinals may, during the vacancy of the
Apostolic See, discuss probable candidates and their
fitness for the office. This is called the tractatus
praevius.
2. ELECTION OF BISHOPS
During the first ten centuries election in the proper
sense was effected by the concurring suffrages and co-
operation of the clergy and the people. Often sov-
ereigns exercised an undue influence in the matter, espe-
G Original from
008IL UNIVERSITY QFWI5C0NSIN
"
120 ECCLESIASTICAL PERSONS
daily after an exaggerated feudal system had created the
so-called investiture with ring and crozier, which abuse
was rectified by the Treaty of Worms (1122). Later
on the corporate chapters of the cathedral churches
legally exercised the right of electing the bishop.41 The
rule that all provisions belong to the Holy See (known as
Rcgula II of the Apostolic Chancery) was never received
outside of Italy, but remained a dead letter, like most of
the other rules (with the exception of III) of the same
chancery.
A modification had naturally to take place when
Protestantism severed many rulers and countries from
the Church. The jus praesentandi granted to some sov-
ereigns naturally ceased after their defection, and though
a certain interference was still exercised, contra fas
jusque, the diocesan clergy and neighboring bishops,
under the supervision of the Holy See, took an important
part in episcopal appointments. This happened espe-
cially in Ireland,42 where the ius comtnendandi in course
of time almost became a ius nominandi. Rome was care-
ful to keep the right of appointing bishops within its
proper limits. Still the right of commending candidates
was acknowledged in Great Britain and the United States,
and the Third Plenary Council of Baltimore (tit. II, n.
15) sanctioned the mode of selecting three candidates as
dignissimus, dignior, diynus, respectively, at a meeting of
the consultors and irremovable rectors of the diocese.
c
This terna was revised by the bishops of the respective
province and the final decision given by the Propaganda
and, of late, by the S. C. of the Consistory. A new
method was ushered in — ad experimenti instar — by a
decree of the S. C Cons, of July 25, 1916. It is difficult
41 C- 35, Dirt. 63 (Lat IT. c. *l Eccles. Rtview, 1917 (56), p.
f); cc. II, 36, A', 5». 56, X, 1, 6; 827.
•v it .,
*8h
c j, X, II, w.
ogle
£ * -» v J„ Original from
UNIVERSITY OF WISCONSIN
-
■
pi
CANON 160 xai
to describe this mode by a proper term, but we may call it
a proposal for future appointments.
The decree may be summarized as follows :
i. The so-called candidates, whose names may be
proposed, must enjoy certain qualities. They should be
of mature age, but not too old, experienced in the prac-
tical administration of temporal and spiritual affairs, of
sound Catholic doctrine, — which means that they must
not be suspected of Modernism, especially, — of more
than ordinary learning, faithfully devoted to the Holy See,
of good conduct and piety, of sound manners and health.
Their family affairs should also be examined (art. 2).
2. All bishops are called upon to send to their metro-
politan the names of one or two priests, either of their
own diocese or outside of it, whom they regard as pos-
sible candidates for a future choice. This should be
done in Lent, every two years, beginning with 1917 (art.
1). In order that the bishops may be properly informed
as to the character of the candidates, they should infor-
mally and secretly ask their consultors and irremovable
rectors — a reminiscence of the old method. They are,
however, in no wise bound to accept or follow the infor-
mation thus obtained (art. 2 ff.). The metropolitan fol-
lows the same procedure in his archdiocese, and ulti-
mately draws up an alphabetical list of the names re-
ceived from all the bishops of the province (art. 5).
3. The bishops meet tvith their metropolitatt after Eas-
ter, at a convenient place and time, without attracting
the attention of outsiders. To their meeting no other ec-
clesiastic is admitted. One of the bishops (the youngest
or the ablest) acts as secretary. After having taken the
oath of secrecy, the bishops enter into a moderate (mod-
erate, we suppose, as to time and spirit) discussion con-
cerning the candidates proposed. Then they proceed to
oogle
k .,1,, Original from
UNIVERSITY OF WISCONSIN
122 ECCLESIASTICAL PERSONS
balloting, in alphabetical order, the white ballot signify-
ing u yes/' and the black one " no," and a neutral color
"I abstain" (art. 12). The metropolitan and the secre-
tary act as tellers. More than one vote may be taken.
After a result has been obtained, the minutes of the dis-
cussion and the result of the balloting are drawn up in
form of a document by the secretary, who reads the same
to his fellow prelates and has a copy made, which must
be sent to the Apostolic Delegate, by whom it is for-
warded to the Consistorial Congregation (art. 15 ff.).
This, in substance, is the decree regulating the " pro-
posal "of names, which are to be kept on record in
Rome as well as in the secret archives of the metro-
politan, at least as long as there is no danger of divulga-
tion. The decree says nothing of the right of bishops,
nothing about postulatio, nothing as to when a meeting
should be called in case the metropolitan see is vacant.
The juridical effect of the " proposal " or the ius nomi-
nandi seu contntendandi, as once in vogue in the United
States and still customary in Ireland, England, and
Canada, is not to create a ius ad rem, but merely, as it
were, a processus informativus, serving as a basis to the
Holy See for the appointment of suitable candidates to
vacant bishoprics.
Quite naturally the question arises : Does this decree
still hold good after the Code has gone into force? We
believe it does, since the Code alludes to " peculiaria,"
where lawfully established. Besides, it is not probable
that the framers of the decree of 1916 knew nothing of
the present Code, which was then in its final shape, so far
as the regulations concerning the election of bishops was
concerned. But we may be allowed to express the hope
that this decree will be changed or abolished if the ex-
periment should prove unsatisfactory.
I Originalfrom
■OOgie UNIVERSITY OF WISCONSIN
CANON 161 123
Other ecclesiastical elections which fall under the ores-
ent article, are those held in religious communities, espe-
daily of exempt orders, who elect their prelates or
superiors.
TIME AND CONVOCATION
■
Can. 161
Si cui collegio sit ius eligendi ad vacans officium,
elcctio, nisi aliud hire cautum merit, nunquam diffe-
ratur ultra trimestre utile computandum ab habita
notitia vacationis officii ; quo termino hurt i lit er e I apso,
Superior ecclesiasticus, cui ius confirmandae electionis
vel ius providendi successive competit, officio vacant!
libere provideat.
Can. 162
§ 1. Salvis peculiaribus constitutionibus vel consue-
tudinibus, collegii praeses, statuto modo, loco ac tem-
pore electoribus convenient^ convocet omnes de
collegio ; et convocatio, quando personalis esse debet,
valet, si fiat vel in loco domicilii aut quasi-domicilii
vel in loco commorationis.
§ 2. Si quis ex vocandis neglectus et ideo absens
in
merit, electio valet, sed ad eius instantiam debet, pro-
bata praeteritione et absentia, a competente Superiore
irritari, etiam secuta confirmatione, dummodo iuridice
constet recursum saltern intra triduum ab habita no-
titia electionis f uisse transmissum.
§ 3. Quod si plures quam tertia pars electorum
neglecti fuerint, electio est ipso iure nulla.
§ 4. Delectus convocations non obstat, si praeter-
missi nihilominus interf uerint.
§ 5* Si agatur de electione ad officium quod electus
I Original from
f^OOglL UNIVERSITY OF WISCONSIN
124 ECCLESIASTICAL PERSONS
ad vitam retinet, convocatio elcctorum ante officii va-
cationem nullum habet iuridicum effectum.
Canon 161 establishes the trimesire utile within which
the election must be held. What utile means has been
explained.** The Code adds that the three months' pe-
riod must be observed unless the law provides otherwise,
and law here means the common law, not constitution or
custom. Hence the general law requires that an election
be held within three months, unless, of course, some un-
foreseen impediment should arise,4* for which the utile
tempus is granted. If the legitimate electors fail to
meet within that time, or can not agree upon a candidate,
— for election certainly involves a result, not mere fruit-
less scrutinies — then the one who is entitled to ratify
the election, or to fill the vacant office by way of devo-
lution, should make the appointment. This is the case,
for instance, if a cathedral chapter allows the tempus
utile to elapse.48 But it also applies to religious com-
munities, and the common law admits their constitutions
only in so far as they do not conflict with the present
canon. Hence privileges granting an extension of time
must now be considered to be without effect.48 Where-
fore, for instance, in certain Benedictine Congregations
which grant the right of ratification to the Abbot Presi-
dent, the latter would be entitled to appoint, positis ponett^
dis. a candidate of his own.
Canon 162 treats:
( I ) Of the preliminary act of convocation, which con-
cerns the mode, place, and time of the election.
(a) The possible mode, in the juridical sense, would
■
4:1 ri. can. j-.; can. 155. joy such a privilege; cfr. Piat.
44 C. 41, X, I. 6. Mont. Pratl Jurit Reg., and ed.. I.
45 Can. -n-', 9'- :l/i'< Bachofcn, Compendium Juris
46 Can. 507. The Franciscan* en- Reg, p. 190.
t I Original from
lOOglt. UNIVERSITY OF WISCONSIN
CANON 162 125
be twofold, vis,, scrutiny and compromise, quasi-fw-
spiratio being excluded. Scrutiny is the usual way of
electing by votes. Compromise is admitted by the Code
and determined in c. 172 f. But the term "modus"
may also be taken in a wider sense, as signifying the
way in which to proceed in the election, as far as not
determined by law; v.g.> mass and other solemnities,
written or printed ballots, etc.
(b) The place for holding elections is not determined.
According to the old law, episcopal elections should take
place in the cathedral.47 For religious the whole convent
is reputed to be a proper place; not even an interdicted
place is excluded.48
(c) The time is to be determined by the head of the
collegiate body. Any time of the day may be chosen, and
it is proper that the Missa de Spiritu Sancto precede the
act.49
(2) Convocation or summons must be served to all
who belong to the body which is to elect. Therefore
(a) All absent members must be summoned in such
a way that, considering the ordinary means of communi-
cation, the summons is apt to reach them wherever they
may be. Hence if the summons is directed to one's domi-
cile or quasi-domicile, or actual stopping-place (e. g., in
vacation time), this is sufficient. If the letter is lost on
the way, or miscarries, this accident has no juridical ef-
fect. But it is advisable to have the letters registered,
for the receipt would serve as a proof that summons has
been duly made. Distance is a very immaterial point
now-a-days. Besides, the Constitutions may provide for
different emergencies.
(b) Summons must be sent also to such as are under
47 C. 38, X, I, 6. Juris Rte-, P. 189.
48 Cfr. Bachofen, Compendium 40 Ibid., p. 195.
Go >gle
1 ■ ■ , -.1 > Original from
UNIVERSITY OF WISCONSIN
126 ECCLESIASTICAL PERSONS
censure, unless they are excommunicati vitandi™ or have
been legally deprived of their vote before the summons
was sent.
(c) The reason why all have a right to be summoned
lies not only in the chapter-rights, of which that of hav-
ing a voice in the election of superiors is the most promi-
nent, but also in the danger of nullifying the election.
For if only one member is absent by reason of not having
been called, the election may be declared null and void.
However, the one who feels himself slighted, in order to
nullify the election, must furnish a twofold proof: first,
that his absence was caused by not being summoned, and
secondly, that he has put in his claim within three days
from the date of the election. If the first proof cannot
be furnished, the latter has no value. Hence the secretary
of the chapter should keep a copy of the summons, with
receipts for the registered letters sent out. The members
should be called together in capttulo, and care be taken
that all are present. If one is absent legitimately (i. e.,
not through his own fault), he is entitled to a personal
summons; but if he knows of the convocation from an-
other source, and that source can be proved, he is not
entitled to remonstrate. The proof that he appealed
within three days can easily be upset if the president keeps
the minutes and records.
(d) That more than one-third of the electors of any
corporate body should be neglected in the case of an elec-
tion is not probable, but should it happen, the election is
null and void, and another must take place. To proceed
to that, a comparison between the members entitled to the
vote and the members neglected must be made, and if it
is proved that the summons were not sent, the minority
-
50 C. 23, X, H, 28.
oogle
k ,|rt " riginal from
UNIVERSITY OF WISCONSIN
CANON 163 127
has the right to ask for another election. However, if
they were present at the election, even though they did
not vote, the election is valid, for summoning is only a
means of calling together, not the purpose of election.
(e) Paragraph 5 speaks of an office for life, and enacts
that any meeting of the members entitled to take part in
an election held before the vacancy of the incumbent pro-
duces no juridical effect. Such a preliminary meeting
or consultation about possible candidates savors of dis-
respect for the present incumbent, opens the way to
criticism and insubordination, and is forbidden to the
cardinals under penalty of excommunication.51 From
such a meeting the so-called tractatus praevxus differs toto
each. This is a meeting held in certain congregations
immediately before the election of a superior, in order
to discuss the qualifications of probable candidates. Our
Code is silent on this subject, and we believe that the ad-
visability of holding such tractatus praevii depends much
on circumstances. In a monastery with many expositi
such a preliminary discernment may accelerate an election
and remove misgivings. Besides, it may bring out faults
and mistakes of the former government which ought to
be corrected.52
the electors (vox activa)
Can. 163
Convocatione legitime secuta, ius eligendi pertinet
ad eos qui praesentes sunt die in convocatione statuto,
exclusa facultate ferendi suffragia non solum per epi-
51 Cfr. " Vacant* Sedg Apos- In which everyone is allowed to
tolica," n. Bo; c. J, Dist. 79. criticize what displeased bin under
bz At Einsiedeln in Switzerland the preceding regime,
they hold ft io called Murr-Kofittl,
a
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
128 ECCLESIASTICAL PERSONS
stolam, scd etiarn per procuratorem, nisi lege peculiari
aliud caveatur.
The Decretals as well as the Tridentine Council,*8 and
several decisions of the Roman Curia, had forbidden
voting by proxy, the common opinion of canonists also
voting by letter.5* Now the Code establishes the general
law that only those actually present are allowed to vote,
but voting by proxy or letter is permitted where a special
law to that effect has been made by the collegiate body.
Such a law may be contained in the Constitutions ap-
proved by the Holy See. Custom, however, is inadmissi-
ble in this matter because the Code speaks of laws enacted
in a special manner. Where voting by proxy or letter is
allowed, care must be taken that the secrecy of the vote be
kept intact
Can. 164
Etsi quis plures ob titulos ius habeat ferendi nomine
proprio suffragii, non potest nisi unicum fcrre.
Can. 165
Nullus collegio extraneus adraitti potest ad suffra-
gium, salvis privilegiis legitime quaesitis ; secus, clectio
est ipso facto nulla.
Can. 166
Si laici contra canonicam libertatem electioni eccle-
siasticae quoquo modo sese immiscuerint, clectio ipso
lure invalida est.
If laymen interfere in any "way with canonical liberty
BJ Cfr. c. 42, X, I, 6; S«s. 25, dentis arcano," May if 1917; Ada
c. 6, Dt Ftg. Ap. Stdit, Vol. IX, pp. 529 ff.; cfr.
B4 Benedict XV, M Dei provi-
jle
, ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
CANON 167 129
in an ecclesiastical election, the election is ipso iure null
and void.
Canon 164 precludes the casting of several votes by the
same person, though he may technically have the right to
more than one vote, for instance, as canon and dignitary,
consultor and irremovable rector.
Can. 165 says that one who does not belong to the
collegiate body, or is not a member of the chapter which
has the right of election, may by custom or privilege be
permitted to cast a vote," provided he is himself a cleric
Unless custom or privilege — and both must be proved
— warrant such a participation, no one who does not be-
long to the body of electors has a right to interfere, and if
the chapter should consent to such interference, the elec-
tion would be null and void.
Much less, says Can. 166, may a layman, no matter un-
der what pretext, even though he be the patron of the
monastery ao or church, be admitted to the election. And
election here means not only the casting of the votes, but
whatever belongs thereto. An exception, if such it be,
may be made in favor of a layman's being present at the
holy Mass, to pray for a good choice.
Can. 167
§ i. Nequeunt suffragium ferre:
i.° Incapaces actus humani;
2.0 Impubercs;
3.0 Censura vel infamia iuris affecti, post sen tent iam
tamen declarator iam vel condemna tor iam ;
4.0 Qui sectae hereticae vel schismatic a e nornen
dederunt vel publice adhaeserunt;
Q
BSCfr. c. 8, X, I, 4; c. 50, X, I, 6. layman, but wai reprimanded by
ooCfr. c. I, DUt. 63 (Had.); c. Greg. IX: 'in disptniSium tcclt-
ftt. X, I, 6. (Cluny had admitted a s\astica9 Kbiftatit"), c. 56, Xf I, 6,
Go >gle
Original from
UNIVERSITY OF WISCONSIN
130 ECCLESIASTICAL PERSONS
5.0 Cardites voce activa sive ob legitimam iudicia
sententiam sive ex iure communi aut particular!.
§ 2. Si quis ex praedictis admittatur, eius guffragium
est nullum, sed electio valet, nisi constet, eo dempto,
electum non retulisse requisition suffragiorum nu-
merum, aut nisi scienter admissus fuerit excommuni-
catus per sententiam declaratoriam vel condemna-
toriam.
Impuberes are all under the age of fourteen.67 Those
who are "incapable of [eliciting] a human act" are
generally called insane, although the authors68 exclude
from voting only such as have no control over themselves
at all habitually, not such as have a lucid moment (lucidum
intervallum) at the time when they cast their vote.
By censure is understood any excommunication, sus-
pension or personal interdict which has been inflicted
either by the law itself for a grievous external fault and
hence needs only to be declared to be incurred, or a
penalty inflicted by legitimate ecclesiastical authority for a
crime which, though not censurable in law, was imposed
by the judge in the form of a sententia condemnatoria.
Concerning the first kind, note that a declaratory sentence
starts at the moment of the perpetration of the crime BB
for which it was inflicted, whilst a condemnatory sentence
must be formally pronounced in order to take effect.
Hence if one had committed a crime deserving of censure
by a declaratory sentence, even though he would be de-
clared guilty only at or after the election, his vote would
be null and void. The same holds good concerning in-
famia juris, which is in law established for certain enor-
mous crimes,60 as well as with regard to heretics and
67Cfr. can. 88. I a: c 32. X. I. l»Cfr. can. 3232. fi».
6. 00 Such aa heresy and apostasy,
•8 Cfr. Keiflenstuel, I, 6, n. 166. also Crimea of a frois nature com-
.'le
% ,| , Original from
UNIVERSITY OF WISCONSIN
CANON 167 131
schismatics. The term notnen dare means to enroll one's
name on the official list of members of a non-Catholic
sect, c. g., by taking a pew in a sectarian church, but one
could not be said to have " given his name " if he merely
contributed to a collection.
Those who are deprived of an active voice in an election
may be so deprived either by the sentence of an eccle-
siastical judge (Ordinary, Pope, Abbot), or by reason of
the law stating that penalty. Such are secularized and
apostatized religious.*1 The particular law sometimes in-
flicts that penalty, e. g.t when the Constitutions of an order
declare that religious who own property against the will
of their superior,02 or who reveal the secrets of the chap-
ter, lose the right to vote. Here the Code does not require
either a declaratory or a condemnatory sentence. Hence
such religious are ipso iure deprived of the vote. How-
ever, since either the fact of the perpetrated crime, or
the penalty, may not be known to the electors, the presi-
dent should formally exclude such members, or formally
pardon them for the purpose of casting their vote.
Here wc may explain the meaning of the absolutio im-
parted at the beginning of an election. This is little more
than a mere ceremony and does not render those excluded
from the right of voting under our canon capable of vot-
ing, but is intended ad cautelam. as the canonists say, i. e.,
in order that the election, if no essential feature is omitted,
may take effect, and hence may not be frivolously at-
tacked. For if it would take away the effects of penal-
ties, these would be a mere mockery.08
The last paragraph (§2) says that the vote cast by
D
mitlcd by clergymen in sacrit, auch *3J'» «3Jfi» *34*> a3$°, 'i^8, 2389.
as sodomy, adultery, beitiality; cfr. as Trid., Seat. 95, e. a, Da Regg.
can. 2314, 6 i. n. a; can. 2359, % 2. «3 Ferraris, Prompta Bibtiothtca,
61 Cfr. can. 639 f. ; can. 2365; by s. v. " Pratiatut Kegularis," n. 73.
a sentence of the judge cfr. co.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
132 ECCLESIASTICAL PERSONS
one incapable of voting does not render the election itself
null and void, except in two cases: if the invalid vote
were decisive, and if the electors would knowingly admit
an excommunicated member. The first case is a rather
difficult one. The secrecy of the ballot box, as now in
use, seems to preclude an investigation. It is probably
for this reason that the canon says, " si constat/' i. e., if
it is evident. The fact might be evident to the tellers,
whose statement in that case would be sufficient to nul-
lify the election. The other case is more palpable, for
the law requires a knowledge on the part of at least some
of the electors of the fact of excommunication. If an
excommunicated person were present in the room and
could not be decently removed, the electors would have to
protest against his presence and also state that his vote
would not count.** The tellers could then simply throw
it out.
Can. 168
Si quis ex electoribus praesens in domo sit in qua
fit electio, sed electioni ob inlirmam valetudinem in-
teresse nequeat, suffragium eius scriptum a scrutatori-
bus exquiratur, nisi aliter particularibus legibus vel
legitimis consuetudinibus fuerit constitutum.
This rule, of course, applies only when the sick person
is in a normal mental condition; otherwise there is not
only no obligation to obtain his vote, but by reason of
can. 167, § 1, n. i, he is excluded from voting.
Can. 169
§ 1. Suffragium est nullum, nisi fuerit:
i.° Liberum; et ideo invalidum est suffragium, si
fl« Kciflenatuel, I, 6, n. 169.
Go< >gle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 170 133
elector metu gravi aut dolo, directe vel indirecte, adac-
tus fuerit ad eligendam certam personam aut plures
disiunctive ;
2.° Secret um, cert urn, absolutum, d etc rmina turn.
§ 2. Conditiones ante electionem suffragio appositae
tanquam non adiectae censentur.
Q
Can. 170
Suffragium sibimetipso nemo valide dare potest.
The first essential requisite of a vote is (a) that it be
given freely. Hence if a voter is influenced, either
directly, i. e., at the election itself, or indirectly, «. e., be-
fore the election but for the purpose of electing a certain
person, no matter whether this influence was exercised
by insiders or outsiders, through grievous fear" or de-
ceit, i. e., bribery, or false representations, his vote is
ipso iure null and void.66 Undue influence of senior
upon junior members would not invalidate the vote, but
might endanger its liberty, so that the tellers would be
obliged to reject the ballots.
(b) A vote must furthermore be secret, because of the
probable consequences of partisanship, enmity, prefer-
ence, and other evils. Hence the Decretals as well as
the Council of Trent insist upon secrecy,67 and all pre-
cautions must be taken that no one's vote is ever revealed.
For this reason the names of the candidates as well as
those of the electors should be printed and distributed.
No mark should be put on the ballots, and no showing
them to others is permitted.
(c) A vote must, in the third place, be certain, 1. e.,
cast for a determined person. It would be uncertain if
-
« Cfr. can. 3205, 9 *• « Cfr. c 43, X, I, 6; Trid., Sen.
«8 Cfr. cc. 14, 43, X, I, 6. 35. & 6, De Kegg.
G| Original from
OOglt UNIVERSITY 0FWI5C0NSIN
134
ECCLESIASTICAL PERSONS
written thus: " I elect the one who has the most votes."
Absolute is the opposite of conditional. A conditional
vote would be: "I elect N. if he accepts." A vote is
determined if the candidate cannot be mistaken and it
spells almost the same as certain.
Any stipulation made before the election is null and
void ; hence no " capitulatio," as was sometimes done be-
fore papal elections, and no promise may be made, or if
made, it need and should not be kept after the election.
BALLOTING
Can. 171
§ 1. Ante elect ionem per sec ret a. suffragia deputen-
tur, nisi iarn propriis statutis deputati sint, e gremio
collegii duo saltern scrutatores, qui una cum praeside,
si et ipse e gremio collegii sit, iusiurandum interpo-
nant de munere fideliter implendo ac de secreto ser-
vando circa acta in comitiis, etiam expleta electione.
§ 2. Scrutatores curent ut suffragia secreto, dill-
genter, singillatim et servato praecedentiae ordine ab
unoquoque electore ferantur; collectisque ad ultimum
suffrages, coram praeside electionis, secundum for-
mam propriis constitutionibus vel legitimis con-
suetudinibus statutam, inspiciant an suffragiorum
numerus respondeat numero electorum, suffragia ipsa
scrutentur palamque faciant quot quisque retulerit.
§ 3. Si numerus suffragiorum superet numerum eli-
gentiurn, nihil est actum.
§ 4. Suffragia statim, peracto unoquoque scrutinio,
vel post sessionem, si in eadem sessione habeantur
plura scrutinia, comburantur.
§ 5. Omnia electionis acta ab eo, qui actuarii mu-
nere fungitur, accurate describantur, et saltern ab eo-
*Ie
Original from
UNIVERSITY OF WI5CGNSI
CANON 171 135
dem actuario, praesidc ac scrutatoribus subscripts, in
collegii tabulario diligenter asserventur.
Unless otherwise provided for in the statutes of the
respective corporation, at least two tellers, who are mem-
bers of the chapter, must be appointed by secret suffrage
immediately before the election. These tellers, as well as
the presiding officer (if he belongs to the chapter), must
take an oath that they will faithfully fulfill their duty and
keep the proceedings secret even after the election.
The tellers must see to it that each elector votes
secretly, singly, and according to the order of precedence.
After the votes have been collected the tellers shall, in
the presence of the presiding officer, count them accord-
ing to the constitutions and customs proper to the chapter,
to see whether the number of the ballots corresponds with
that of the electors ; and then ascertain and announce the
result.
If the number of votes cast exceeds that of the voters
the election is void.
The ballots must be burnt after each scrutiny, or at
least after each session, if several ballots were take in one
one session.
The minutes of the election must be accurately taken
down in writing by the secretary, who together with the
presiding officer and the tellers must sign the record,
which is to be carefully preserved in the archives of
the chapter.
This important canon embodies the famous chapter 42
of the Decretals of Gregory IX (I, 6), which has been
elaborately explained by the commentators. However,
the new law modifies and simplifies the procedure. Thus,
only two tellers are required, but these must be members
of the chapter which elects a superior. They must be
od by GoOgle
s -l] ^ Original fro ni
UNIVERSITY OF WISCONSIN
136 ECCLESIASTICAL PERSONS
chosen by secret ballot, unless the statutes determine who
are to serve as tellers, for instance, the two seniors, or
the two juniors, or the two oldest definitors. The tellers
must be chosen immediately before the election. Their
function consists in watching that the voting takes place
according to law : secreto, i e., so that no one can perceive
in any way, or by any sign, to whom another gives his
vote. This can best be accomplished by using printed
ballots and folding them in such a way that the name
does not appear. The folded ballots are cast into a
chalice or urn in presence of the tellers. Diligenter for-
merly meant that the tellers had to urge the electors to
give their vote to a worthy candidate and with holy zeal.
This was necessary when the electors bad to inquire and
put down the names of those for whom the vote was
cast.08 Now-a-days diligenter may be taken as an ex-
hortation to the electors to vote conscientiously and so as
not to delay the election. Singillaiim means that the
electors should vote one after another, not two or three
at the same time, which might furnish an opportunity
for fraud. Hence the order of precedence is pre-
scribed, which says that the senior member of the com-
munity should vote first. Seniority is to be taken ac-
cording to the date of profession in religious bodies, or
the date of appointment or choice in chapters or boards
of diocesan consultors. However, if the Constitution of
an order or congregation prescribes that the junior mem-
bers should cast their vote first, this rule must be ob-
served-
After all have cast their vote, the tellers, in the pres-
ence of the presiding officer, should first compare the
number of votes cast with the total number of those
-
<
08 Reiffenstnel, X, 6. n. 128.
>Ic
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 171 137
who were entitled to vote. If there are fifty lawful
electors present and fifty-one votes are cast, the election
is null and void and another ballot must be taken. When
the number of votes cast tallies with that of the voters
present, the ballots must be opened (unfolded) and ex-
amined as to their validity, which may be affected by the
vote itself, by the person who cast it, or the one for whom
it is cast.
(a) Every ballot must be cast according to can. 169,
and hence uncertain, conditional, and undetermined votes
are not counted.
•a
(b) The person who has cast the vote may be incapa-
ble of voting, which would make his vote null and void ;
but this defect should be decided before the balloting,
although such an invalid vote may be rejected after the
election if its invalidity was not discovered before.
(c) The person for whom the vote is cast may suffer
from an impediment which renders him incapable of
accepting the election, at least without a dispensation.
If the impediment is such that a dispensation may be
obtained, the person thus affected must be postulated
(can. 180) and the phrase " I postulate " be used in the
vote or ballot Otherwise the vote is invalid. The im-
pediments which may arise in the case of religious are
stated in can. 504 of our Code, where the Constitutions
of each religious congregation are enforced and, besides,
the following conditions laid down : that no one is eligible
who has not been in the order at least ten years from the
date of simple profession and who is not of legitimate
birth ; fl9 that, to be elected superior general or abbess, a
candidate must be forty years of age, whilst to be elected
provincial or abbot or guardian, etc., the age of thirty
<
oo Rejula juris 87 in 6°: " infamibus portae non paleant dignikitum."
§le
I , Original from
UNIVERSITY OF WISCONSIN
138 ECCLESIASTICAL PERSONS
St
suffices. The Constitutions of some orders lay down
other and stricter conditions for the respective offices.
Under the old law heretics and apostates, forgers of
apostolic documents,70 persons guilty of sodomy,71 those
who from ambition consent to their election before the
result is published,72 and those who used simonical means
were excluded.78 The Code does not mention these
disqualifications, but it would be neither against the law
nor superfluous to insert them in the Constitutions.
The result of an election is to be made public by the
tellers, together or singly announcing how many votes
each candidate has received.
Summarizing the new law governing elections we may
lay down the following as its essential points:
(i) Two tellers secretly elected from the members of
the body;
(2) Oath taken by the tellers;
(3) Duty of tellers respecting the casting of the votes;
(4) Collecting of the votes;
(5) Examination as to the number of votes and voters;
(6) Inspection of the ballots;
(7) Publication of the result.
The rest of the text (§§ 4 & 5) is plain enough. It is
not so evident, to us at least, why no oath is required from
the presiding officer if he does not belong to the gremiutn
collegii. Of course, we understand why he cannot strictly
be obliged to take the oath, for he does not belong to the
chapter and therefore the chapter has no authority to de-
mand an oath of him. However, the supreme legislator
could oblige such a one to take the oath of secrecy because
the presiding officer at an ecclesiastical election acts in the
p
toC. 7. X, V, to. 7= C. 46, X, I, 6.
ti Pius V, " Horrtttdun," Aug. ia C. aj, X, V, 33-
30, 1368.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
Q
"-.
CANON 172 139
name of the Church. And we believe it would be very
opportune to put him under oath because strict secrecy is
very important iu an election, and although he is bound
by the professional secret, yet the religious act of taking
an oath would add weight to the natural obligation.
The oath itself may be taken upon the Holy Gospels,
which is the usual form, or without the Gospel Book, by
simply swearing in the name of God.
COMPROMISE
Can. 172
§ 1. Electio, nisi aliud iure caveatur, fieri etiam
potest per compromissum, si nempc electores, unanimi
ct scripto consensu, in unum vcl plures idoneos sivc
de gremio sivc extraneos ius eligendi pro ea vice
transferant, qui nomine omnium ex recepta facultate
eligant.
§ a. Si agatur de clericali collegio, compromissary
debent esse sacerdotes, secus electio est invalida.
§ 3. Compromissary debent pro validitate electionis
conditiones compromisso appositas, quae non sint con-
tra ius commune, observare ; si nullae conditiones ad-
ditae fuerint, servandum ipsis est ius commune circa
electiones; conditiones autem contra ius pro non ap-
positis habeantur.
§ 4. Si ab electoribus in unam tantum compromis-
sum fuerit personam, haec nequit seipsam eligere; si
plures designati fuerint compromissarii, nemo ex iis
proprio consensu potest accedere reliquis ipsum eli-
gentibus ut electionem sui compleat.
This canon provides that an election, unless otherwise
oogle
v ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
140
ECCLESIASTICAL PERSONS
N
■
provided by law, may take place "by compromise, I.e.,
the electors may, by unanimous written consent, bestow
the right of electing upon one or several fit persons, who
may be either members of the chapter or outsiders, and
who, by virtue of the faculty received, perform the elec-
tion in the name of all.
In clerical chapters the compromissarii must be priests,
otherwise the election is invalid.
The compromissarii, in order to elect validly, must ob-
serve the conditions laid down in the compromise, as far
as these do not contravene the common law; if no con-
ditions are mentioned, the common law concerning elec-
tions must be followed.
If there is only one compromissarius, he may not elect
himself; if there are several, none of them may add his
vote to the votes cast for himself in order to be elected.
The Code, following the Decretals/4 admits the form of
compromise and sets up several rules for it.
The first rule is that the compromise must be made by
unanimous consent, because an election touches all and
must therefore be approved by all.™ The consent must
be given in zvriting (formerly this was not required),
and therefore all the electors must sign their names to the
compromise. The electors may choose either from their
own (chapter) or outside, i. e.t such who would not have
a right to vote, as in the example referred to in the pre-
vious note concerning nuns appointing the bishop as their
compromissarius.
The second rule, although not especially stated, is that
the compromissarii must be clergymen,™ and if the elect-
ing body is of the clerical order, the Code says they must
be priests. What is meant by clerical order or community
T4Cf. c. A3, X, I, 6; in c. 8 it>.
T6 Rtff, juris 29 in 6°.
7«Cf. c. 8, X, I, 4i, dt arbitris,
c. j, XII, i dw i*dk.; can. 166.
oogl
e
Original from
UNIVERSITY OF WI5CGNSI
CANON 172 141
is stated in can. 488, § 4. where a clerical order is defined
as one, most of whose members are priests. A lay order,
0. g., is that of the Christian Brothers, who may choose
brothers of another community, or even of a different
order, as compromissarii.
The third rule touches a conditional compromise, which
is sometimes called limited, or a compromise with restric-
tions, as, for instance, if the electors agree to elect one of
the members of their own community/7 or to employ the
advice of certain persons,*8 to elect within a specified time.
If the condition added militates against the common law
which determines the fitness of persons or the mode of
election, no attention must be paid to it. But the com-
promissarii must follow the common rules of election and,
of course, observe the trimestre.
The fourth rule excludes electing oneself. If only one
compromis sarins is chosen he cannot elect himself. But
there may be several comprotnissarii, an example of which
is stated in the Decretals ™ : Seven were comprotnissarii
to elect a dean of the chapter; three chose one of the
seven and the other three chose another, who was not one
of the seven. Pope Innocent decided that the former was
elected if he consented to his election and there was no
canonical impediment. Under the new Code this is im-
possible, because the candidate would not be allowed to
accede to the votes given for him. But if four votes of
the seven, not counting that of the elected candidate,
would fall upon the same person, that person would be
legitimately elected. Thus, also, in the case of three
compromissarii casting two votes for the third compro-
missarius, the latter would be elected if there were no
obstacle to invalidate his election.
Q
".
TT Cf. cc. 33 *.. X, I, 6. « C 33, X, I, 5.
t» a. e. S*. x, 1, 6.
►ogle
( "* ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
p
142 ECCLESIASTICAL PERSONS
Can. 173
Cessat compromissum ct ius cligcndi redit ad com-
promi ttentes :
i.° Revocatione a collegio facta, re integra;
2.0 Non secuta aut non servata aliqua conditione
compromisso apposita;
3.0 Electione absoluta, si fuerit nulla.
Canon 173 decides when the compromise may be
repeated, and when it ceases. The lawful electors may
recall the compromise as long as it has not taken a legal
turn (re integra). The legal turn has commenced, ac-
cording to the old law,80 which is not changed in this re-
gard, when the cotnprontissarii have repaired to a separate
place or room and begun to treat of the person to be
elected.
The right of electing returns to the original electors:
a) If any condition is not fulfilled by the compromis-
sarii, for instance, if the time set for the election elapses 8l
or if an unfit (indignus) candidate is elected. The non-
observance of any reasonable condition which is not
against the common law, deprives the compromissarii of
the right of election, which consequently returns to the
legitimate electors, not to the superior, because the Code
explicitly says : " ius eligendi redit ad compromittentes."
b) If the compromissarii have made an election, but
this is void for any reason, e. g., the unfitness of the can-
didate elected, the right of electing returns to the original
electors.
The question may arise whether religious communities
so C. 30, X, I, 6. canonists taught; cfr. Reiffenstucl,
«l C. 37, 6\ I, 6; bat the canon I, 6, n. 93, and others, but this is
states that the right of electing rejected by the new Code.
passes to tbe superior, as the
>Ic
Original fro ni
UNIVERSITY OF WISCONSIN
-
CANON 174 143
may employ the compromise. The answer is yes, because
the Code admits it in general terms. Hence, if the Con-
stitutions contain nothing to the contrary, a religious com-
munity may elect a superior by compromise.
s
u
the number of votes required
Can. 174
Is electus habeatur et a collegii praeside proclame-
turt qui requisitum suffragiorum numerum retulerit,
ad normam can. 101, § i, n. z.
■
The one who has received the number of votes required
under can. ioi, § 1, n. 1, is elected and must be proclaimed
by the presiding officer.
The canon referred to states that an absolute majority
of votes is required to carry an election.
effect of the election
Can. 175
Electio illico intimanda est electo, qui debet saltern
intra octiduum utile a recepta intimatione manifestare
utrum electioni consentiat, an eidem renuntiet; secus
omne ius ex electione quaesitum amittit.
The result of an election must be immediately made
known to the one elected, who is obliged within eight days
(utiles from the date of notice) to signify his intention
of accepting or not accepting the election. If he fails to
do this, he forfeits every right acquired by the election.
Now-a-days the means of communication are so swift
and convenient that the result of an election may be made
known to the one elected more rapidly than in former
times, wherefore the Code uses the term illico, without,
.'le
£ " ^ ^ %\r* Original from
UNIVERSITY OF WISCONSIN
144 ECCLESIASTICAL PERSONS
however, determining its exact meaning. Formerly in-
timation was to be made quatn citius*2 which was inter-
preted as meaning eight days from the date of election.6*
Of course, the notice of election should be sent imme-
diately to the person elected, because illico means without
delay, and from the spot or place where the election was
held. Formerly the person elected was given one month
for deliberation,84 now he is given only eight days. Still
the new law leaves some margin, in as far as the eight
days are utiles or equitable. Therefore if an unforeseen
impediment, over which a man has no control (e. g., sick-
ness or delay of trains) would arise, this delay would not
affect the right acquired by election. But if malice or
negligence caused a delay, the right accruing from election
would be ipso iure forfeited.
Q
Can. 176
§ 1. Si electus renuntiaverit, omne ius ex electione
quaesitum amittit, etsi renuntiationis euro postea poe-
niteat; sed rursus eligi potest; collegium autem intra
mensem a cognita renuntiationc ad novam electionem
procedere debet.
§3. Acceptatione electionis electus, si confirma-
tione non egeat, plenum ius statim obtinet ; secus, non
acquirit nisi ius ad rem.
§ 3. Ante acceptatam confirmationem ipsi praetextu
electionis non licet sese irnmiscere administrationi offi-
cii sive in spiritualibus sive in temporalibus, et actus
ab eo forte positi nulli sunt.
Every man is free to accept or refuse an election. Re-
ligious are no exception. Hence not even the superior
HC. 6. 68, I, 6. **lt>id.
MC 16, 6°t I, 6, 8 Caeterum.
ogle
Original from
UNIVERSITY OF WISCONSIN
CANON 176 145
can compel a religious to accept an election, because the
freedom to refuse office has not been taken away by pro-
fession.*5 But once having refused, he has lost his rights,
nor can they be regained by a change of mind. There-
fore, when an elected person refuses to accept, the electors
must proceed to another election. At this second election
the one who was first elected, but refused, and subse-
quently changed his mind, may again be elected.
Paragraph 2 mentions the right following acceptation.
This right is either in re or ad rem. A right in re creates
the faculty and power to dispose of a thing as one's own;
thus a proprietor may do with his property as he pleases,
unless the law intervenes. A ius ad rem is a right which
creates a claim to a thing, or causes it to become one's own
(ut res Hat sua), though he does not yet have it in his
hands nor can dispose of it freely. One elected to office
obtains a ius ad rem if the election needs ratification by a
superior. But if the very act of election and acceptation
puts him in possession of the office or prelacy, he has a
JKf in re, or an unimpeached right to administer the office.
§ 3 explains what one who has been elected and ac-
cepted, cannot do if the election requires confirmation.
Since he is not yet the proprietor or possessor of the office,
he cannot interfere with its spiritual or temporal adminis-
tration, and consequently, even if he has been adminis-
trator ad temp us or procurator, he has to abstain from acts
of jurisdiction. However, we believe that common acts
of buying and selling and administrative routine affairs,
provided nothing is done detrimental to the church or
community, may be performed by such administrators-
elect." But strictly legal acts, such as appointment to
a
bo Engel, I, 6, n, 46. some allowance for provinces re*
8fl Cf. ReiflenstucI, I, 6, a. 47; mote from Rome.
Engel, I, 6, d. si. who even makes
jle
£ " ^ , +\r* Original from
UNIVERSITY OF WISCONSIN
N
■
146 ECCLESIASTICAL PERSONS
offices or presentation to parishes, and acts of jurisdiction,
such as giving faculties for hearing confessions, inflicting
ecclesiastical censures, absolutions and dispensations,
would be of no juridical effect (actus ab eis forte positi
nulli sunt).
I Can. 177
§ 1. Elect us, si electio confirm atione indigeat, sal-
tern intra octiduum a die acceptatae electionis confir-
mationem a competente Superiore petere per se vel
per alium debet; secus omni iure privatur, nisi pro-
baverit se a petenda confirmation iusto irnpedimento
fuisse detentum.
§ 2. Superior, si electum rcpererit idoneum, et ele-
ctio ad normam iuris fuerit peracta, nequit confirma-
ticnem denegare.
§ 3. Confirmatio in scriptis dari debet.
§ 4. Recepta confirmation^ electus obtinet plenum
ius in officio, nisi aliud in iure caveatur.
This canon states the necessity of ratification, which is
evident because the legitimate superior's power cannot be
set aside. Ratification must be sought under penalty of
forfeiting the rights accruing from election. Under the
Decretals " this penalty was so severe that it rendered a
person incapable of obtaining any office in future. This
is abolished by the new Code. If the elect can prove, by
at least one trustworthy eyewitness, or other lawful proof,
e. g.t the testimony of a physician, that he was prevented
from asking ratification, the rights acquired by the elec-
tion remain intact.
The competent superior, from whom ratification must
be demanded, is the one next in authority.88 Thus a pro-
•T C I?, X, I, fi; C 5, 6', I, 6; 8» Engcl, I, 6, n. 50.
Engel, I, 6, a. 51.
jle
Original from
UNIVERSITY OF V,'15C0NSI
CANON 177 147
vincial would have to ask the general's confirmation;
bishops are confirmed by the Holy See. Religious orders
and congregations mostly state in their constitutions who
has the right of confirming elections.8* Superiors of dio-
cesan institutions are ratified by the respective Ordinary.90
The Code says (§2) that a superior is not at liberty to re-
fuse ratification arbitrarily. This does not apply to the
Supreme Pontiff, who, unless bound by a concordat, may,
even without reason, refuse to confirm the elect.81 Other
superiors are obliged to ratify the election if the person
elected is fit and the election was valid, because an election
and its acceptance produce a right."
Ratification, which must be given in writing (§3),
creates a full right to the office, unless consecration or
benediction is required to enable one to exercise pontifical
functions. Abbots regular, in order to be allowed the
exercise of pontifical functions, must be blessed by the
diocesan bishop within three months from the date of
their election,0*
DEVOLUTION
D
Can. 178
Si electio intra praescriptum tempus peracta non
fucrit aut collegium iure eligendi privetur in poenam,
libera officii provisio ad eum Superiorem devolvitur, a
quo confirmanda esset electio vel cui ius providendi
successive competit.
If an election was not performed within the term pre-
scribed, or if the electors were legitimately deprived of
the right of election, the right to appoint one to the vacant
office devolves on the superior who would otherwise ratify
89 These Constitution* are ad- 91 Reiffenatuel, I, 6, n. 28.
niitted by the Code, can. 507, |i. 81 C 3, X, I, 6.
bo Can. 506, I 4. " Can. 6*5; c£ cc. 325, 96*. n. 1.
oogle
f^ ^ ^ i\s* Original from
UNIVERSITY OF WISCONSIN
■
148 ECCLESIASTICAL PERSONS
the election, or on the one who is next as to the right of
appointment.
The time prescribed in can. 161 is three months from
the date when notice was given of the vacancy."* There-
fore the electoral college loses the right of election after
said term has expired. It may, moreover, forfeit the
right by electing one unfit for the office, or by setting
aside the substantial form required by law.08 In such
cases the right of election devolves either on the superior
who has the right of ratifying the election, which is the
case in religious communities, or on the superior who is
called upon to supply the negligence of an inferior, as
happens in cathedral chapters.00 The case may arise that
one who is elected suffers from a hidden impediment, for
instance, illegitimacy unknown to the electors, or at least
to the majority of them. Is such a one allowed to accept
the election? If he can decline it without defamation or
losing his reputation, he is bound to do so. But if he is
reasonably afraid of losing his good name, or if the
church or community would suffer by his refusal, he is
allowed to accept, but should ask secretly for a dis-
pensation."
ART III
postulation
Can. 179
§ 1. Si electioni illius quem clectores aptiorem pu-
tcnt ac praeferant, impedimentum obest, super quo
dispensari possit ac soleat, suis ipsi suffrages eum pos-
sunt, nisi aliud hire caveatur, a competente Superiore
N Cc. 7, 41, X, I, 6. Kef.; c. 18, 6°, I, 6, reserve* that
BoC. 1 8, 6% I, 6. right to the Roman Pontiff with
©6 Cf , cc 3i5! X. I, io; co. a, la, regard to cathedral chapters.
X, III, 8; Trid.. Sess. 24, c. 16, Dc 87 Engel, I, 6, n. 45.
gle
lr> Original from
UNIVERSITY OF WISCONSIN
■
Q
CANON 179 149
postulare, etsi agatur dc officio, pro quo electus con-
Brmatione non egeat.
§ 2. Compromissary postulare nequeunt, nisi id in
mandate aut compromisso fucrit cxpressum.
Can. 180
§ 1. Ut postulatio vim habeat, pro ea stet oportet
maior suffragiorum pars, imo, si cum electione con-
currat, saltern duae tertiae partes requiruntur.
§ a. Suff ragium pro postulatione exprimi debet per
vcrbum: postulo, aut aequivalens; formula: eligo vel
postulo, aut aequipollens, valet pro electione, si irnpe-
dimentum non exsistat, secus pro postulatione.
Can. 181
§ 1. Postulatio saltern intra octiduum mitti debet
ad Superiorem ad quern pertinet electionem confir-
mare, si facultatem habeat ab impedimento dispen-
sandi ; secus ad Romanum Pontificem aut ad alium ha-
bentem facultatem.
§ 2. Si intra praescriptum tempus postulatio missa
non fuerit, ipso facto nulla evadit et electores pro ea
vice privantur iure eligendi aut postulandi, nisi pro-
bent se a mittenda postulatione iusto detentos fuisse
impedimento.
§ 3. Per postulationem nullum ius postulato acqui-
ritur et Superiori licet eandem repellere.
§ 4. Praesentatam Superiori postulationem electo-
res revocare non possunt, nisi Superiore consentiente.
Can. 182
a
§ i. Reiecta a Superiore postulatione, ius eligendi
ad collegium redit, nisi electores scienter ilium postula-
te
v ,| , Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
ISO ECCLESIASTICAL PERSONS
verint qui tali detinetur impedimento in quo nequeat
aut non soleat dispensari ; tunc cnim provisio ad Supe-
riorem pertinet
§ a. Quod si postulatio admissa i ucrit, id cignifice-
tur postulato, qui rcsponderc debet ad normam can.
175.
§ 3. Si earn acceptet, plenum ius in officio eidem
atatim acquiritur.
These four canons treat of what is called population,
i. e.t a petition directed to the competent superior or dig-
nitary." ■ This is styled postulatio solemnis or proper,
to distinguish it from simple postulation, which, according
to all authors, takes place when an inferior, say a religious
or clergyman of another diocese, is to be elected to a
higher office in a monastery or diocese not his own. We
arc not concerned so much about the bishops of our coun-
try, as about religious communities, although it is evident
that a bishop of one diocese should be postulated, not
elected, for another diocese, because, as the authors say, a
spiritual tie between the bishop and his diocese induces a
mystic marriage, which can be dissolved only by the
Roman Pontiff.09 But this is not the case with a religious,
who is, for instance, elected abbot or superior of another
monastery, or even bishop of a diocese. In the first case,
viz., if he is elected to another monastery than that of his
profession, he needs only the permission of his immediate
superior and must be of the same religious order. If he
is elected bishop of a diocese, he needs no permission but
that of his superior, because it is he who is entitled to
give permission to leave the monastery.100 Hence there
MEnjel, J, 3, n. i. 100 Cc. »7, 3*. 6m, I, «; e. i,
90 C, 4, X. I, 7, de translation* Clem. I, 31 * relisioui not abbot.
Bfiiccpi
G I Original from
OOglL UNIVERSITY 0FWI5C0NSIN
CANON 179 151
is not the faintest idea of postulation in the proper sense
to be perceived in the Decretals. Such a religious, if he is
endowed with the necessary permission either before
(conditionally) or after election is simply elected, not
postulated.
But what about an abbas regiminis ac benedictusf May
he be elected or must he be postulated if called to govern
another monastery? Some authors101 insist vehemently
upon the spiritual marriage between an abbot and his
monastery and maintain that in such a case postulation
is required. However, the text quoted in 6° does not
favor that opinion, and the sententia communis is against
it.1M Neither can we see much difference between per-
petual and temporary abbots as to the spiritual relation
between superior and monastery or understand how the
blessing contributes to the spiritual tie. Hence, as long
as no better reasons are brought forward, we cling to the
old law and to the sententia communis which tells us that
abbots can be elected in the strict sense.
Postulation in the proper sense is required if the person
elected suffers from an ecclesiastical impediment, for in-
stance, of age or lack of the necessary number of years
in the order,108 or illegitimate birth. In such cases the
competent superior to be asked for a dispensation is the
Apostolic See, unless the necessary faculty has been im-
parted to the superior general of an order or to an
Apostolic legate.104
The next canon (180) states the requisites of postula-
tion. The first is that an absolute majority of the votes
101 Molitor, Religion Juris Capita 103 Cf. can. 504; an. 507. 3 3,
Sttrcto, 1909, p. 450. adroit* po»tul*tion only in cxtraor-
io» Thus Paiscrini, Dt EUctiont, dinary case*, but insinuates noth.
c. 24. n. 38; Engcl, I. 5. n. o; Reif- ing as to the necessity of poitu-
fenstuel, I, s§ n. 6; Werns, /. c, II, lating abbots,
n. 394! Aictaner, I 8j, a. 10* C jS, X, 6*, I, «.
oogle
% ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
152
ECCLESIASTICAL PERSONS
cast is required for postulation in general. However, if
a portion of the electors should wish to elect, e. g., a per-
son without an impediment, while another prefers a can-
didate with an impediment, the postulantes must form
two-thirds of the electoral college,1* and the formula used
should simply be, " ego postulo" not " eligo et postulo"
because such a formula is uncertain. ,oa The Code, how-
ever, admits the term " eligo vel postulo " in case the can-
didate suffers from no canonical impediment.
Canon 181 mentions the time within which postulation
must be presented to the superior and the effects which it
produces. As to the former the Code is explicit. Con-
cerning the latter, it must be remembered that the admis-
sion of postulation is a mere favor on the part of the
superior, who, therefore, if he is supreme (i.e., the
Sovereign Pontiff) needs to give no reason for rejecting
the postulation, whereas an inferior does. This is pre-
cisely what § 3 says. It follows that mere postulation,
until fully admitted, creates no right whatever to the
office, because, as stated, the admission of postula-
tion is a favor.107 Another consequence is that postula-
tion depends upon the admission of the superior and
creates no right for the postulates, but consists in this that
postulants may change their mind as long as postula-
tion is not as yet in the hands of the superior.108 But
once it has reached the superior, postulation can no longer
be changed, lest the superior would be derided. Of
course, if the superior consents to a change, postulation
may be changed or turned into election.
The last canon (182) speaks of rejection and admission
105 c. 40, X, I, 6.
ioo C un. 6°, I, 5.
107 Rciffenituel (I, S, n- ?*) ia
inclined, but certainly not logically
or canonicallj, to hold that there is
an obligation or admitting postula-
tion if the public welfare or utility
are at italte.
108 C. 4, X, I. 5; Engel A. *..
xx. 4.
►ogle
Original from
UNIVERSITY OF WI5C0NSI
CANON 179 153
of postulation. If postulation is rejected, for whatever
reason, the electors regain their right of again electing
or postulating. However, if they have knowingly postu-
lated one afflicted with a canonically indispensable im-
pediment, the postulants have, for the time being (not for
future elections) forfeited the right of election, and the
superior to whom the postulation was directed is free to
appoint a person of his own choice.100 Admission 0/
postulation creates the same right as election and con-
firmation together, 1. e., admission produces a ius in re,
provided the postulates gives his consent within eight days
from the date of the notice received of the admitted postu-
lation. The acceptance must be intimated to the postu-
lants as well as to the superior who admitted the postula-
tion, although the right to the office or prelacy takes full
effect from the moment one accepts. Hence, what-
ever pertains to administration and jurisdiction he may
now perform, but if consecration or benediction is needed,
he cannot exercise pontifical rights.
A last question to be solved concerns titular bishops.
Must they be postulated ? The Decretals 110 seem to favor
the assumption that, although they have no flock and no
clergy, such bishops are bound to their titular church, and
hence need a special dispensation to transfer them to a
residential cathedral church. It follows that titular
bishops cannot properly be elected, but must be postu-
lated. This, however, must and cannot be applied to titu-
lar abbots, much less to such as enjoy only the privilege
of pontificals.
10» Cc i-3, X, L 5. UOCf. Reiffenttuel, If 5, n. 40 ff.
p
I Original from
/^jOO^K. UNIVERSITY OF WISCONSIN
■
pi
CHAPTER II
loss of ecclesiastical offices
Can. 183
§ z. Amittitur officium ecclesiasticum renuntia-
tione, privatione, amotione, translations lapsu tem-
poria pracfinitL
§2. Resoluto quovis modo iurc Superioris a quo
fuerat concessum, officium ecclesiasticum non amitti-
tur, nisi lex aliud caveat aut nisi in concessione habea-
tur clausula: ad beneplacitum nostrum, vel alia
aequipollcns.
An ecclesiastical office is lost by resignation, privation,
removal, transfer and lapse of time.
Although the superior who has made the appointment
goes out of office, the appointee does not lose his office,
unless otherwise provided by law or unless the grant
was made with the clause : " ad beneplacitum nostrum "
or a similar one.
After the legislator has stated how an office is ac-
quired, either by free appointment or election, he now
proceeds to show how it may be lost. In § 1 he com-
pletely (laxative) enumerates the ways by which an office
may be lost. In § 2 he removes, as it were, a doubt con-
cerning the tenure of office, as if it ceased in conse-
quence of the deposition or resignation of the grantor.
This, the Code says, is the case only (a) if the office was
granted under a clause signifying the will of the grantor
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 184 155
to confer it "ad beneplacitum nostrum," or "durante
nostro pontificate" or (b) if the law itself states that the
office ceases with the superior's authority ; thus, e. g., the
Roman Congregations and tribunals enjoy only a limited
power during the vacancy of the Holy See,1 the juris-
diction of the vicar-general ceases with the cessation of
his Ordinary's office/ etc. Otherwise an office is sup-
posed to be given permanently or not to be revoked by
the cessation of the grantor's office, e. g., that of legate.*
After stating this general principle, the Code treats of the
several ways in which an office may be lost.
RESIGNATION
D
Can. 184
Quisque sui compos potest officio ecclesiastico
iusta de causa renuntiare, nisi speciali prohibitions
renuntiatio sit ipsi interdicts.
Can. 185
Renuntiatio ex metu gravi, iniuste incusso, dolo
aut errore substantial! vel simoniace facta, irrita est
ipso hire.
Can. 186
Renuntiatio, ut valida sit, fieri debet a renuntiante
aut scripto aut oretenus coram duobus testibus aut
etiam per procuratorem speciali mandato munitum;
et scriptum renuntiationis documentum in Curia de-
ponatur.
These three canons determine the objective requisites
of resignation.
1 Can. «4>; Pius X, " Vacant e « Can. jft.
Sedt ApottolUa." a C. 1, 6*, I, 15.
§le
k ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
156 ECCLESIASTICAL PERSONS
The person who resigns must be in full possession of
his mental faculties — compos sui — i.e., he must be
able to perform a human act. Besides there must be a
reason for resigning, else many might leave their charges
in
and disturbance ensue. The valid reasons for resigning
an office are stated in the Decretals * as well as in the
Constitution of Pius V, "Quanta Ecclesia," April 1,
1568. They are as follows : 8
Advanced age, which may vary and should be esti-
mated according to prudent judgment.
Sickness, bodily disease and corporal deformity which
prevent one from securely, decently, and satisfactorily
performing the duties connected with the pastoral office,
e.g., paralysis, gout, epilepsy, etc.
Consciousness of a crime and censure with one's repu-
tation at stake.
Deadly or lasting enmities between a pastor and a large
part of his flock; to which category also scandal, even
without fault, may be referred.
Receiving another office incompatible with the one al-
ready possessed.
Finally, entrance and profession in a religious order.*
These are the reasons admitted by law for resigning
an office. Though some authors maintain that said De-
cretals applied only to bishops and that the Constitution
of Pius V was not everywhere received,7 the Code by
requiring in general some just reason, certainly intends
to apply that enactment to each and every office to be
4C. io. X, I, 9, of which the B Cf . Barbosa, Ius Ecct. Univ.,
summary repeats them in the fol- 1. Ill, c. 15, nn. 99 ff (ed. Lugd.,
lowing verse: 1660, II, 279 ?•)•
" Dwbilis, ignarus, malt consdui, « Bcncd. XIV, "Ex quo," Jon. :.;,
irregularis. 1747 (Hull.. Frati. II, 156 ff.).
qutm mala plebs adit, dans scondala t Engel, I, 9, n. 6.
ctdtf$ potest."
a
oogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 186 157
resigned But it must be added that one or the other of
the reasons named would suffice.
A novice is prevented by law from resigning an office
which he held before entering religion.8
The person who resigns must be entirely free. Hence
any grievous fear inflicted by one who has no right to
bring pressure upon an office-holder, would render the
resignation void.9 This does not, of course, apply to
the fear threatened by the legitimate superior, e.g., a
bishop who has a reason for forcing a clergyman to re-
sign.
Physical violence, especially if exercised by laymen,
would invalidate a resignation.10 The same holds good of
fraud or error, e. g., the promise of a pension or sum of
money, or a fraudulent description of conditions which
supposedly exist in a parish, as also any simoniacal pact,
either real or verbal. All these would render a resigna-
tion invalid ipso jure.11
Can. 186 establishes the form in which resignation
must be made ; vis., either in writing or verbally in the
presence of two witnesses. This is a very reasonable
rule, for it not only safeguards liberty but also prevents
litigation.
If the resignation is handed in by a procurator fur-
nished with a special mandate, he must observe all the
conditions of the mandate, and besides, we believe, must
obey the rules established in this canon, vis., submit
the resignation in writing or bring two witnesses. As
long as the mandate is not expressly revoked and the
repeal received by the procurator, he may proceed with
the resignation.12 The procurator may be a layman.1*
8 Can. 568. Aug. 29, 1741 (Hull., Pratf, I,
»C. 5, X, I. 9; c. 41 3t, I, 40. 98 f-), c 4, X, I, 35; c. a, X, V, 3.
30 C. 2, X, I, 40. 11 C. un. Clem. I, 4-
llBcned. XIV, "In tublimi,'' i» C. 1, 6\ I, 19. dt prccunt;
>Ie
j , Original fro ni
UNIVERSITY OF WISCONSIN
-'
IS8 ECCLESIASTICAL PERSONS
Can. 187
§ 1. Renuntiatio generating ut valeat, ei fieri de-
bet a quo est acceptanda, velv si acceptatione non
egeat, a quo clericus officium accepit vel qui eiusdem
locum tenet.
§ 2. Quare si officium per confirmationem, admis-
sionem vel institutionem collatum fuerit, renuntiatio
fieri debet Superior! ad quern de iure ordinario confir-
matio, admissio vel institutio spectat.
Resignation being a voluntary act, which must be ac-
cepted by a competent superior, requires that it be pre-
sented to that superior, who is the real grantor of the
office. Note, however, that, although acceptance is said
to be an essential part of resignation, there are cases in
which it is not required. Thus the Roman Pontiff may
abdicate without the consent of the College of Cardi-
nals.14 Besides any one may resign an office to which he
has only the ius ad rem, e. g., to which he has been elected
but not yet ratified. Furthermore if two contend for an
office, one may waive the claim; and, lastly, a clergyman
who is not a bishop may resign in order to enter a religious
order.18
In all those cases in which acceptance is required, the
resignation must be presented to the one who has con-
ferred the office or to his representative (successor).
Hence bishops (and abbots) must present their resigna-
tion to the Pope.
Minor offices are resigned into the hands of the bishop
or his coadjutor, if the latter has full power,18 of the
Barbosa, Jus Eccl. Univ., 1. Ill, n. IB Baibosa, /. c. III, n. 5 f.;
1st f. Reiffenstuel, I, 9, n 16 f.
14 C. Z, 6% I, 7. *• Barboia, I. c, o. 11.
gle
Original from
UNIVERSITY OF WISCONSIN
CANON 188 159
vicar-capitular," but not of the vicar-general unless he
has a special mandate.18
§ 2 follows out the principle laid down in the preced-
ing paragraph ; for the one who actually confers the bene-
fice is the one who ratifies the election, who admits postu-
lation, and who confers the office. Hence neither the
electors nor the postulantes, nor the lay or ecclesiastical
patron who presents a candidate for an office, have the
power to accept his resignation.1*
Besides express or explicit resignation, both the old
and the new law admit also a
TACIT RESIGNATION,
Of
which is brought about and signified by a fact, especially
one upon which the law itself has decreed the loss of an
ecclesiastical office.
Can. 188
Ob tacitam renuntiationem ab ipso lure adrnissam
quaelibet officia vacant ipso facto et sine ulla declara-
tion, si clericus:
i.° Professionem religiosam emiserit, salvo, circa
bcncficia, praescripto can. 584;
a.° Intra ternpus utile iure statutum vel, defi-
ciente iure, ab Ordinario determinatum, de officio pro-
visus illud adire neglexerit;
3.0 Aliud officium ecclesiasticum cum priore incom-
patible acceptaverit et eiusdem pacificam posses-
sionem obtinuerit;
4.0 A fide catholica publice defecerit;
5.0 Mat rimo niurn, etiam civile tantum, ut aiunt,
contraxerit;
it Can. 455, I a. laBaiboai, /. c, n. ia
IB C£. can. 455. 1 13 Barbota, /. c.
oogle
% ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
160 ECCLESIASTICAL PERSONS
6.° Contra praescriptum can. 141, § 1 militiae
saeculari nomen sponte dederit;
7.° Habit urn ecclesiasticum propria a uc tor it ate
sine iusta causa deposuerit, nee ilium, ab Ordinario
monitus, intra mensem a monitione recepta resurn-
pserit;
8.° Residentiam, qua tenetur, illegitime deserue-
rit et receptae Ordinarii monitioni, legitimo impedi-
mento non detentus, intra congruum tempus ab Ordi-
nario praefinitum, nee paruerit nee respondent
This canon presumes resignation, to which it applies
the effect which certain facts are supposed to produce
under the law. This effect is vacancy of the office held,
whether adduced by privation, as punishment,80 or simply
due to the incompatibility of certain offices with the newly
chosen state of life or other offices. Hence
(1) By religious profession (even simple) a man for-
feits all parochial offices within one year from the date
of said profession, and all other offices21 within three
years.
(2) The tempus utile within which the bishop must go
to his diocese is four months from the date of confirma-
tion ; 22 the parish priest has to commence his administra-
tion within the time prescribed by the Ordinary. Note
the phrase " tempus utile," which implies that a legitimate
impediment or ignorance of the date fixed for taking
hold of the office would excuse.
c
(3) What incompatible offices are was said above; by
the very acceptance of one such office the others become
vacant.28
to Really, it would be privation, 6°, I, 6.
but the Code presumes resignation za Can. 156; c. 54, X, I, 6; e. 3,
ipso faeio. 6*, I, 16; Trid., Sew. 7, e. 4; Sew.
Si Can. 584; c. 4. 6°, III, 14. «4. c 17, Dt R*f.
MCin. 333; can. 238, J a; c. 14.
s'C
J ^ Original from
UNIVERSITY OF WISCONSIN
CANON 189 161
(4) Defection from the Catholic faith, if public, de-
prives one of all ecclesiastical offices he may hold ; ■* not,
however, mere schism, if unconnected with heresy,
(5) Marriage, if contracted by a public act, either
validly by such as are in minor orders only, or attempted
by clerics constituted in higher orders, is tantamount to
giving up office.28 Hence from the very moment a mar-
riage is either contracted or attempted, the offices held
by a clergyman would be vacant, and restitution of the
revenues derived therefrom would begin from the mo-
ment of the marriage.
(6) Enlisting in the army has been touched above.86
(7) Doffing the ecclesiastical garb is tantamount to
resignation if ostentatious and scandalous and connected
with contumacy towards the Ordinary.
(8) As to residence, the necessary explanations are
given under the respective canons.27 We only repeat
that these cases, as set forth by our canon, do not really
imply a resignation, but that the law supposes and pre-
sumes resignation, which therefore is an improper re-
nunciation or legally presumed resignation.
Can. 189
§ 1. Superiores sine iusta et proportionata causa
renuntiationes ne acceptent.
§ 2. Renuntiationem Ordinarius loci intra mensem
vel adrnittat vel reiiciat-
Can. 190
§ 1. Officium, renuntiatione legitime facta et acce-
f* C. 9, X, V, 7. 2« Can, 141.
88 C. a, Diit 28; cc. 10, 13, Diit. I? Con. 143 (in general); can.
]a; cc 1, 3* 5. X, III, 3. 338 (bishops) ; can. 465 (pastora).
jle
f~* ^ -. %\s* Original from
UNIVERSITY OF WISCONSIN
i62 ECCLESIASTICAL PERSONS
ptata, vacat postquam renuntianti significata est ac-
ceptatio.
§ 2. Rcnuntians in officio pcrmaneat donee dc Su-
perioris acceptatione certum nuntium acceperit
Can. 191
I § 1. Semel legitime facta renuntiationc, non datur
amplius poenitentiae locus, licet renuntians possit offi-
cium ex alio titulo consequi.
§2. Acceptata renuntiatio tempestive nota fiat iis
qui aliquod ius in officii provisionem habent.
The legislator admonishes (but under no invalidating
clause) superiors not to accept a resignation without just
and proportionate reason, as insisted upon by Pius V."
Besides, in order not to protract vacancies, acceptance
must be notified within one month. With the same end
in view Gregory XIII, by his Constitution " Humano vix
ittdicio" (Jan. 5, 1584), had prescribed that all resigna-
tions should be published within six or nine months.
This Constitution is modified by the Code, which requires
not publication, but notification, to be made within one
month.
The effect of the notified acceptance of a resignation
consists in the vacancy of the office resigned.89 There-
fore, as soon as the resignans has received official notice
that his resignation is accepted, he is free from all obli-
gations connected with the office, but also deprived of all
rights, material and spiritual, pertaining thereto.80
The last canon on resignation states that if a resigna-
tion has once been accepted, it is not rendered invalid by
a
c
siCc. x( s, 9, xo, X, I, 9; M Btrboia, Jus Eccl. Univ., Ill,
"Quant* BecUsia," 1568, (3. c. 15, no. 1480.
a» Co. 3i im, X. I, ft ft * 6". I. 3-
jle
Original fro rn
UNIVERSITY OF WISCONSIN
CANON 192 163
•
regret or a change of mind on the part of the resignans,
since such a step is supposed to be taken with due delib-
eration and for adequate reasons.81 However, if a man
who has resigned an office is again presented or elected
or appointed to the same, the presentation, election, ap-
pointment or investment would constitute a new title.
In that case, however, precedence and other privileges
would date only from the second appointment.'2 Thus,
e. g.f a prelate who resigned his office and obtained it
anew would hold rank of seniority only from the date of
the second appointment, unless the mere order would be
decisive."
DEPRIVATION OF OFFICE
Q
Can. 192
z
§ 1. Privatio officii incuxritur sivc ipso iure, sivc ex
facto legitimi Superioris.
§ a. Si agatur de officio inamovibili, Ordinarius
nequit clericum eodem privare, nisi mediante processu
ad normam iuris.
§ 3. Si de amovibili, privatio decerni ab Ordinario
potest ex qualibet iusta causa, prudenti cius arbitrio,
ctiam citra delictum, naturali aequitate servata, sed
certum procedendo modum sequi minime tenetur, salvo
canonum praescripto circa paroecias amovibiles; pri-
vatio tamen effectum non habet, nisi postquam fuerit
a Superiore intimata; et ab Ordinarii decreto datur
recursus ad Sedem Apostolicam, scd in devolutivo
tantum.
Deprivation is incurred either by law or by the decision
of a legitimate superior. A cleric who holds an irre-
11 Cc. 3, 6, 12, X, fj 9. saThis agrees with St. Benedict '•
II Kcificnituel, 1, 9, n. 4*- Rule, ch. 39-
oogle
k ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
164 ECCLESIASTICAL PERSONS
movable office can be deprived of it only upon trial insti-
tuted according to law. One holding a removable office
may be deprived of it by his Ordinary without having
committed a crime, for any just reason. No special pro-
cedure is required in such cases unless the cleric is a re-
movable pastor, when the Ordinary has to comply with
the canonical norms. Deprivation takes effect only after
the subject has been notified by his superior. From the
Ordinary's decision recourse may be had to the Apostolic
See, but in devolutivo only.
Deprivation is a penalty, and hence the present canon
really belongs to the penal law. However, since the leg-
islator enumerated deprivation among the modes of los-
ing an office in can. 183, § 1, it was necessary to deal with
the subject here.
§ 1 states how deprivation is brought about, vis., by
law or by a judicial sentence. The law states the reasons
for deprivation partly under the heading of tacit resig-
nation (can. 188), partly in the fifth book.84 There, too,
it is stated when the judge may decree privation, and
that he may inflict this penalty ( for it is a vindictive pen-
alty), for weighty reasons if the law is silent.
§ 2 and § 3 distinguish between irremovable and re-
movable officials, and say that the former may not be
deposed without an ecclesiastical trial (as described in
Book IV). One holding a removable office is more easily
deprived, unless that office is a pastorate, in which case
the regulations laid down in the Code must be strictly
followed.80
Of other offices one may be deprived, (a) even though
he has committed no crime, (b) for a just reason, ac-
cording to the prudent judgment of the Ordinary, who,
at Can. 229&B. H Cf. cc 3157-2161.
Q
'■-.
jle
^ ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 192 165
however, (c) must follow the dictates of equity, although
(d) he is not bound by any legal procedure.
As to (a), it was once generally held that only a crime
(delictum publicum) could deprive a holder of his office ;
however, since the " welfare of the Church " came to be
regarded as the " supreme law," M the ancient rigor was
relaxed and (b) any reason that satisfied the Ordinary
was deemed sufficient to justify removal.
Which would be a sufficient reason? Comparing our
Code 87 with the well-known decree " Maxima cura "
(1910), we find that some of the reasons stated in the
latter have been omitted. They are: serious neglect of
pastoral duties, after one or two admonitions and in mat-
ters of importance, such as sick-calls, catechism class and
preaching, the law of residence ; disobedience to the in-
junctions of the Ordinary, after several admonitions, and
in important matters, such as excessive familiarity with
a certain person or family, cleanliness of the house of
God, moderation in the exaction of taxes, etc. (pew-rent,
collection). These reasons cover a large field and may
enter into the Ordinary's judgment. Of course, it is
evident that the other reasons stated in can. 2147, §2
are also sufficient to remove an office holder.
Having, then, one of these reasons, the bishop is bound
only by the dictates of natural equity, which means that
merit and previous services to the diocese should be taken
into consideration and some other office is available; for
as long as a priest does not make himself culpably un-
worthy, he remains incardinated. Lastly, (d) in order
to proceed to the act of removal the Ordinary need not
employ any legal procedure (strepitus iudicii). After he
has duly intimated his decision to the clergyman whom
US. C. Constat, "Mmxima IT. 636).
cura." Ausr. aof ipio. (A. Ap. S., 37 Can. 2147, 1 2.
*Ic
j t Original from
UNIVERSITY OF WISCONSIN
166 ECCLESIASTICAL PERSONS
a
he wishes to remove, the latter may have recourse to the
Holy Sec, — if we mistake not to the S. C. Concilii, —
but the effect of an appeal will be devolutive only, that is
to say, the decision of the Ordinary holds good and the
one deprived of office is really deposed and must conduct
himself accordingly, i. e., neither take any part in the
management of his former office nor cause trouble in the
congregation or community, until a decision is given
by the Roman Court.
Here the important question arises whether our so-
called removable rectors in the U. S. fall under the cate-
gory of those who must be removed according to cc.
2157-61, or whether they may be removed for the rea-
sons described above and without trial. We premise
that according to can. 454, § 3, all pastors ought to be
irremovable, unless the bishop, compelled by special cir-
cumstances, deems it necessary to retain removable pas-
tors. It is left to the prudent judgment of the Ordinary,
after having heard his consultors, to determine the char-
acter of the pastorate in his diocese. This premised, the
answer of the S. C. Consist of June 28, 1915, to the
bishops of the United States88 must decide our case.
This answer is that removable rectors in the U. S. may
be removed according to the good pleasure of the bishop,
but that the latter, under the decrees of the Second
Plenary Council of Baltimore, should not make use of
this right except for weighty reasons and with due re-
gard to the merits of his priests. The reason given for
this decision is that " sahis animarum supremo lex est"
and that, according to the Ilnd and Illrd Councils of
Baltimore removable rectors are not equal to the des-
servants of France, but must be regarded as vicars of
<
8B Card, CiaBparri alleges this c is ion, but the date needs correc-
tion.
, ,1,., Original from
UNIVERSITY OF WISCONSIN
>gle
CANON 193 167
their Ordinaries and hence arc amovibiles ad nutwn.t%
transfers
Can. 193
§ x. Translatio ab uno ad aliud officium ecclesiasti-
cum ab eo tantum perflci potest, qui ius habet turn ac-
ceptance renuntiationem, turn removendi a primo offi-
cio et promovendi ad alterum.
§ 2. Ad translationem, si dc consensu clerici fiat,
quaelibet iusta causa sufficit; si invito clerico, eadem
fere causa requiritur idemque procedendi modus ac
pro privatione, firmo praescripto can. 2162-4167, quod
ad translationem attinet parochorum.
Can. 194
§ 1. In translatio iie prius officium vacat cum cle-
ricus alterius possessionem canonice capit, nisi aliud
a iure cautum sit vel a legitime Superiore prae-
scriptum.
§ 2. Reditus prions officii translatus percipit, do-
nee aliud occupaverit.
h
X
Can. 195
Qui clericum ad officium elegerunt vel postulave-
runt aut praesentaverunt, nequeunt eundem officio
privare aut ab eo revocare seu amovere aut ad aliud
transferre.
■
By transfer is understood an exchange of offices made
with the consent of the legitimate superior. The trans-
fer of bishops is dealt with in can. 430. Canons 193 sqq.
treat of transfers in general. First mention is made of
*9A. AP. S., 1915 (VII), p. 373ff-
Go >gle
I , Original fro ni
UNIVERSITY OF WISCONSIN
168 ECCLESIASTICAL PERSONS
the legitimate superior, who is entitled to transfer one
from one office to another. In case of episcopal transfers
the legitimate superior is the Holy See.40 Formerly such
transfers were made at synods.41 The inferior clergy
was transferred with the consent of the bishop.48 The
new Code requires that the superior who negotiates the
transfer must enjoy the right of accepting resignations
as well as the right of removal and promotion. Hence
it is evident that, concerning minor offices, it is the bishop
who is entitled to make transfers, not those who have the
right of presentation (patroni) or election.
However, transfers, like resignations, should not be
made without reason, because, unless there is a promo-
tion to a better office, transfers are generally looked upon
as odious and degrading. Hence § 2 justly requires a
reason, but also distinguishes between voluntary and in-
voluntary transfers. The former may be made at the
express wish of the office-holder. For instance, a pastor
advanced in years, or in poor health, or beset by serious
troubles, may ask for a transfer to another parish, or
even to the post of assistant.
Here the question arises whether parish priests may
exchange places. The Code,48 as far as we can see,
touches that question only in connection with the ex-
change of benefices, but does not exclude an exchange of
offices. Hence if made for reasons of utility or neces-
sity, and with the consent of the Ordinary, such an ex-
change would be lawful.
An involuntary transfer, being odious and generally
disgraceful,44 not only requires reasons acknowledged by
p
40 C. 34, c. 7. 1. i (Pseudo- 42 /bid.
Anterua); cc 1-4, X, I, 7. 43 Can. 1487 f.
41 C. 37 (Cartha*. IV), C. 37. Q- 44 Cf Smith, Elements I, n. 394-
1,
ioi >gle
Original from
UNIVERSITY OF WISCONSIN
CANON 194 169
law, but also the legal procedure prescribed in the IVth
Book."
Canon 194. mentions the date of vacancy, which com-
mences from the time the other office is canonically taken
possession of. The reason is that from the moment a
priest holds one office, he is not supposed to hold an-
other.4* Hence the possessor of the former office is
entitled to the revenues of the latter, until he has been
actually introduced into the new office (corporalis itntnis-
sio).
What canon 195 states is evident not only from the
fact that patrons and electors do not actually confer the
office, but also from can. 193, which supplements the
latter canon.47 This canon doubtless strikes at a custom
which is not in keeping with ecclesiastical law, and there-
fore not to be imitated elsewhere, though in vogue, as we
know, in Switzerland, where parishes in certain cantons
claim the right to reelect their pastors or vote them out
of office. The canon, though admitting the right of elec-
tion, because this is not tantamount to conferring the
office, justly rejects any interference with the removal
or transfer of ecclesiastical office-holders.
«Cm. 3161-2167 i cf. c. 5, X, « C. *8, X, III, 5; c. a8, 6% III,
II. 10. 4-
41 C. 4, X, III, 38.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
TITLE V
ORDINARY AND DELEGATED POWER
Can. 196
Potestas iurisdictionis seu regiminis quae ex divina
institutionc est in Ecclesia, alia est fori externi, alia
fori intcrni, seu conscientiac, sive sacramentalis sive
extra-sacramentalis.
The legislator, after having stated the modes and
means by which an office is acquired or lost, now turns
to the natural foundation and end of every office : the
power of jurisdiction. This, he says, is by divine institu-
tion twofold. For the Church, being a perfect society
intended for the salvation of souls, must exercise (cfr.
can. 100) a jurisdiction which chiefly looks to the wel-
fare of society as such, and at the same time must wield
a power which directly touches the realm of conscience.
Thus the Apostles were endowed with spiritual power
from above.1 They as well as their successors were
given the threefold power of making laws, deciding cases,
and applying punishment. At the same time they also
received the power of binding and loosing,2 which is ex-
ercised in the Sacrament of Penance. Moreover, St.
Paul solved cases outside a strictly speaking private or
internal tribunal, yet touching the conscience of individu-
als, as in the case of the incestuous man of Corinth and
1 Matt. a8, 18; cf. Pohle-Preu*. * M*tt. 16, 18; 18, 18; John to,
Thg Sacramtnts, Vol. Ill, 1917. pp. 31.
Iff.
170
sd by GoOgle
( * j , Original from
UNIVERSITY OF WISCONSIN
CANON* 197 171
the two blasphemers.8 In addition, cases not necessarily
connected with sacramental absolution may occur and
have always occurred, e. g., the need of dispensing from
vows, occult irregularities and impediments, absolving
from occult censures, etc.4 This, then, is the range of
ecclesiastical jurisdiction in foro externo and in foro in-
ferno, which latter touches the conscience of individuals.
The word jurisdiction is derived from ins dicendi, which
means the right of taking cognizance of a case and decid-
ing it according to law or equity.
In general, jurisdiction may be said to be "a public
faculty to rule or govern others." * This definition cov-
ers both jurisdiction in foro externo and jurisdiction in
foro interno, because, though the latter touches con-
science, it is the public authority of the church which be-
stows that power over the consciences of the faithful.8
ordinary jurisdiction
Can. 197
§ 1. Potestas iurisdictionis ordinaria ea est quae
ipso iure adnexa est officio; delegata, quae commissa
est personae.
§ 2. Potestas ordinaria potest esse sive propria sive
vicar ia.
Can. 198
§ 1. In iure nomine Ordinarii intelliguntur, nisi
quia exprcssc cxcipiatur, praeter Romanum Pontifi-
8 I Cor., 5, 5; I Tim. I, ao. Univ., 1746, I, p. ia, well says that
4 Houix, De Principiis Juris the faculties o! preaching and ab*
Canonici, 185*, p. 534. solving belong to the court of
5 Rciffcnstuel, I, jq, n. 3 (ac- conscience, hut the power of grant-
cording to Pirhing) : " Jurisdictio ins them belongs to the forum ex-
est potestas publico, circa ahorum ternum, because given for the pub-
regimen seu guber nation em." lie welfare.
0 Berardi, Comment, in Jus Can,
IT
i f^ ..v,,!,, Original fro in
d by Google
UNIVERSITY OF WI5CGNSI
172 ECCLESIASTICAL PERSONS
cem, pro suo quisquc tcrritorio Episcopus residentialis.
Abbas vel Praelatus nullius corumque Vicarius Gene-
ralis, Administrator, Vicarius et Praef ectus Apostoli-
ous, itemque ii qui pracdictis dcficicntibus interim ex
iuris praescripto aut ex probatis constitutionibus sue-
cedunt in regimine, pro suis vero subditis Superiores
rnaiores in religionibus clericalibus exemptis.
§ 2. Nomine autem Ordinarii loci seu locorum ve-
niunt omnes recensiti, exceptis Superioribus rcligiosis.
The term ordinary in the Decretals7 is an attribute
of judges and means as much as official. Even arch-
deacons were said to enjoy ordinary jurisdiction in their
respective districts.8 But it also meant9 the free or un-
hampered power of the bishops in their dioceses. Hence
the term signifies a certain autonomy, but not com-
plete independence. The root of that autonomy is
the nature of the office;10 wherefore our canon says
that ordinary jurisdiction is attached to the office, not to
the person ; it grows out of the office as the fruit grows on
the tree. By law it is attached to the office, because either
of divine or human law (to which latter also belong privi-
leges and customs)11 certain office-holders enjoy juris-
diction in foro externo. Therefore, as soon as one is in
full possession of an office, he has the power to exercise
the jurisdiction appertaining to that office.
However, there is a distinction made by the Code: —
ordinary power may be either proper or vicarious (pro-
pria vet vicaria). This somewhat modern distinction is
not easily explained. Wernz says that jurisdiction
■
7 C< . Tit. 31, lib. T . jurisdiction at possessed "ipsa «ur#,
8 Thomas&in, P. I, 1. II, c. jo. non atieno btneftcic."
o, 7. 11 Berardt, /. c, p. 19; Bouix,
»C. i, X, I. 31. I c, p. 529.
10 [.. 5, Dig. a, 1 define* ordinary
, ,|,, Original from
UNIVERSITY OF WISCONSIN
gle
Canon 198 173
proper is that which naturally follows the existence of
Q
the Church as a perfect society and is exercised by the
Church in her own name, as in her own forum (ut in
foro suo), e.g., excommunication and penalties, whereas
vicarious jurisdiction is that exercised by the Church in
virtue of a special divine commission and in foro Dei,
e.g., to declare the word of God infallibly, to remit sin,
grant indulgences, solve vows, oaths, etc.12 We must
confess that we were always under the impression that
the objects enumerated under vicarious power belonged
to the Church as her proper domain. Where is the
bishop's jurisdiction proper, and where does his vicari-
ous power commence? If the latter signifies the so-
called iurisdictio mandate, which is a delegated power for
all cases (ad umversiiatem causaruni)™ we have delega-
tion proper, as can. 199, § 3 plainly states. However, it
may be that vicarious refers to vicar. A vicar differs
from a delegate, inasfar as he takes the place of the ordi-
nary (judge) and forms one tribunal with him, whereas
a delegate is a distinct juridical person and has his own
tribunal.14 Here we have a more tangible distinction.
If this is the meaning of the canon, the vicar-general
would enjoy vicarious jurisdiction, whilst the bishop,
within his sphere and territory, has jurisdiction proper.
To assume that a bishop has but a vicarious power, de-
rived from the pope, whose vicar he is, would offend
against the divine institution of the Church.
The next canon (198) enumerates those who are com-
prised by the name of Ordinaries. They are: all who
rule or govern a diocese or ecclesiastical district tanta-
mount to a diocese: residential bishops, prelates nullius
D
i- Ins Decretal., II, p. 7 (1 cd.) ; explanation.
LAurenrius, Tnslitvt. Juris EccU, IS Heiffenrtue! I, 99, n. if.
i903> P- 3&t i- 45. adopts the same 14 Rciffenrtuel, I. c, n. aS.
od by GoOgle
1 ■ ■ , l , Original fro rn
UNIVERSITY OF WISCONSIN
174 ECCLESIASTICAL PERSONS
(sc. territorii), as well as their vicars-general; also
Apostolic administrators, Apostolic vicars and prefects;
the vicars-capitular or administrators during the vacancy
of a see, be these such under the common law or accord-
ing to approved constitutions ; 15 finally, the higher su-
periors of exempt clerical orders of religious, •". e., the
superior general, abbot primate, provincials and abbots,
presidents as well as abbots of single exempt monasteries,
and their legitimate locum tenentcs or representatives.1'
These latter, however, — except in cases where they are
at the same time prcclati nullius — are not ordinarii loci,
•a
but simply Ordinaries. Hence, if a canon " says that a
religious needs the permission of the Ordinarius, the
superior of his community is understood ; but if the Or-
dinarius loci is mentioned, the religious, though exempt,
must obtain the permission from the diocesan bishop,
e. g., in case of absence from a parish for some length of
time."
:
DELEGATED JURISDICTION
A delegated jurisdiction, according to can. 197, § i, is
one which has been commissioned to a person.18 This is
the cause or raison d'etre of a juridiction which is not
given by virtue of the office itself but accrues to a person
by reason of a special commission which may be implied
in the law or come directly from the competent authority
(delegatio a lure, delegatio ab homine). Hence a dele-
gated jurisdiction is not exercised in one's own name, but
in the name and by commission of another.
Can. 199
§ 1. Qui iurisdictionis potestatem habet ordina-
ls Can. 43a, 6 3- IS Can. 465.
i« Can. 488, 8°. is Cf. S. C. P., Not. 8, 188a;
it Cfr. can. 130, 1 3. S. O., Feb. ao, 1888.
oogle
% ,|,, Original fro m
UNIVERSITY OF WISCONSIN
-'
■
pi
CANON 199 175
riam, potest earn alteri ex toto vel ex parte delegare,
nisi aliud expresse iure caveatur.
§ 2. Etiam potestas iurisdictionis ab Apostolica
Scde dclegata subdelegaxi potest sive ad actum, sive
etiam habitualiter, nisi electa fuerit industria perso-
nae aut subdelegatio prohibita.
§ 3. Potestas delegata ad universitatem negotio-
rum ab eo qui infra Romanum Pontificcni habet ordi-
nariam potcstatem, potest in singulis casibus subde-
legari.
§ 4. In aliis casibus potestas iurisdictionis delegata
subdelegari potest tantummodo ex concessione ex-
presse facta, sed articulum aliquem non iurisdictio-
nalem etiam sine expressa commissione iudices dele-
gate possunt subdelegare.
§ 5. Nulla subdelegata potestas potest iterum sub-
delegari, nisi id expresse concessum fuerit
This canon treats of the relation of ordinary jurisdic-
tion to delegation, and of the relation of the latter to sub-
delegation.
(1) The Pope may delegate his power of jurisdiction
wholly or partially to another, except in certain matters.
A bishop or Ordinary may also delegate his power to
another, and our text is emphatic as to the extent of that
delegation, stating that it may comprise the whole power
(ex toto). Hence the former opinion of canonists,20
that the whole jurisdiction of a bishop could not be dele-
gated to another, because this would be tantamount to
abdication, can no longer be held. Neither are any
special qualifications laid down for a delegate. It used to
be held that a delegatus papae had to be an ecclesiastical
dignitary, e. g., a canon of a cathedral chapter, a prior
zoCf. Keifienatuel I, 29, n. 56; Santi-Leitner, I, 39, n. 7.
G I Originalfiom
OOglL UNIVERSITY 0FWI5C0NSIN
176 ECCLESIASTICAL PERSONS
conventualis (but not a prior claustralis) ." Now,
we believe, any Catholic priest in communion with the
Holy See can be entrusted by the Pope with a delegation.
The priestly character seems to be required, since the
Code insists upon that in every instance, but we would
not assert that the Sovereign Pontiff could not make an
exception in favor of a cleric in minor orders, since it is
acknowledged that he can delegate even laymen."
(2) If the pope has chosen a delegate, either for a cer-
tain case or for all cases that may arise, this delegate may
subdelegate another ecclesiastic,28 — a layman could not
be admitted in the case of subdelegation, this being the
exclusive privilege of the Sovereign Pontiff, — and endow
him with the delegated power, either habitually (1. €.,
without limit as to time or person or matter) or for a cer-
tain case. However, if the person delegated by the pope
was chosen on account of qualities peculiar to himself and
found in no one else, subdelegation is excluded.
Whether such a personal choice was intended, must be
gathered from the text of the document. As a rule, if
the name of the person is placed first, and followed
by that of the office or dignity, what canonists call Indus-
trie personae is intended. The same holds if the writ
says that the delegate must himself (at ipse, per \emei-
ipsum) take cognizance of, and decide the case or cases
for which he is appointed, or if the nature and circum-
stances of a case are fully known only to him, or if the
matter concerns persons in high position.24 Sometimes
a writ of delegation contains a clause expressly prohibit-
ing subdelegation.
§ 3 and § 4 mention delegates appointed by ecclesiastics
SIC. 11, 6°, X,3; c. 1, Gem. I, a. " Cc. 3. 43, X I, 29; Santi-
22 C. 23. Dist. 63; c. 4, X, III, 8. Leitncr, I, 29, n. 8.
so C. 6a, X, II, 28.
>Ic
£ " ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 200 177
inferior to the pope. Whoever is delegated for any pur-
pose by a cardinal, or metropolitan, or bishop, or other
Ordinary must first of all examine the document by
which he is delegated, to ascertain whether he is to expe-
dite affairs generally (ad universitatem negotiorutn) or
only a certain kind or number of cases. If he has what
may be termed universal (delegated) jurisdiction (which
may be the case, e. g., with coadjutor bishops), he may in
turn subdelegate in particular cases,25 for instance, one
special matrimonial case, or the criminal case of a clergy-
man. If, however, no universal (delegated) jurisdiction
has been conferred on him, the delegate needs a special
and an express commission to authorize him to subdele-
gate others. Only incidental but not juridical acts, prop-
erly so called, may be subdelegated ; thus, for instance, a
delegate may, even without a special commission, entrust
another clergyman with the reading or translation of
documents if he needs help in that direction. But the
summoning and hearing of witnesses, receiving of excep-
tions, interlocutory sentence, etc., are juridical acts which
the delegate may not subdelegate to another except with
special permission.88
The last paragraph prohibits subdelegation by a sub-
delegate, ne processus dctur in infinitum.21 Even if the
original delegans would expressly permit such a subdele-
gation, it would not hold good in law.
Q
interpretation of jurisdiction
Can. 200
§ 1. Potestas iurisdictionis ordinaria et ad univer-
n
IB There it no foundation for tbe 26 C. 37, X, I, 29; ReifTenstoel,
distinction made by I'utxer (Com. I, 29, n. 64 f-
in Fac. Ap„ p. 38 f.) between uni> « C. a8, X, I, 29: txontrorg
versaiitaj and gemraiiltu causarum: matittose ncqutat.
the Code excludes that.
>Ic
k ,1,., Original from
UNIVERSITY OF WISCONSIN
178 ECCLESIASTICAL PERSONS
sitatem negotiorum dclegata, late interprctanda est;
alia quae! i bet stricte; cui tamen delegata potestas est,
ea quoque intelliguntur concessa, sine quibus eadem
cxerccri 11011 posset.
§ 2. Ei, qui delegaturn se assent, incumbit onus
probandae delegationis.
Ordinary and universal (delegated) jurisdiction may
be interpreted broadly; all others must be interpreted
strictly; however, even in delegated jurisdiction all those
faculties are included without which the exercise thereof
would be impossible.
Whoever claims to be delegated is obliged to prove the
f fact.
The difference between the two interpretations men-
tioned in § 1 consists in this, that ordinary and universal
jurisdiction is considered favorable, whereas the other is
taken to be odious ; in other words, the broad interpreta-
tion is based upon one's own power, whilst the strictly
delegated power depends on the consent of another,
which may not be presumed. Hence if an Ordinary has
doubts concerning his own power, he may nevertheless
use it. But strictly delegated power must be neither ex-
tended nor restricted as to persons, number, species, or
norm of procedure.*8
That one who pretends to be a delegate must show his
credentials, follows from the fact that delegation is an
accident, which may not be presumed, but must be
proved."
28 C. 31. X I. 29: c. i, ExtrftY. 29 Reiffenstuel. X. -9. n. ttt
Comm. I, 3.
jle
Original from
UNIVERSITY OF WISCONSIN
■
CANON 201 179
extent of jurisdiction
Can. 201
§ x. Potcstas iuxisdictionis potest in solos subditos
directe exerceri.
§ 2. Judiciahs potcstas tarn ordinaria quam delc-
gata exerceri nequit in proprium commodum aut extra
territorium, salvis praescriptis can. 401, § 1, 881, § a
et 1637.
§ 3. Nisi aliud ex rerum natura aut ex iure constet,
potestatem iurisdictionis voluntariam seu non-iudicia-
lem quis exercere potest etiam in proprium commo-
dum, aut extra territorium exsistens, aut in subditum
e territorio absentem.
The power of jurisdiction may be directly exercised
only over subjects. Judicial power, ordinary as well as
delegated, cannot as a rule be exercised for one's own
benefit or outside of one's own territory-
It is otherwise with voluntary or non-judicial juris-
diction, which may be exercised in one's own favor out-
side one's territory, and on subjects absent from home.
As legislative power does not extend to such as are
not subject to the community or society,00 so judiciary
power cannot be applied to those outside the jurisdiction
of the judge. The limiting adverb "directly " in the text
is important, especially for matrimonial cases. For al-
though the Church does not judge those outside her own
pale, she is entitled to make laws for, and judge, those
who belong to her fold, and hence, while an impediment
laid down by the Church may not directly bind an unbe-
liever or non-baptized person, yet the Catholic party is
bound by the law and judgment of the Church, and con$e-
ao Cad. 12,
oogle
v ,|r> Original from
UNIVERSITY OF WISCONSIN
180 ECCLESIASTICAL PERSONS
quently, marriage being a bilateral contract, it cannot
take place until the obstacle is removed.
The next two paragraphs suppose the distinction be-
tween contentious and voluntary jurisdiction. The for-
mer is exercised in judicial form even over such as do
not seek the aid of the court (in nolentes, invitos),
whereas the latter may be exercised without judiciary
formalities, but only over persons who seek the benefit
of jurisdiction of their own accord, e. g., absolution from
censures, dispensation from irregularities and impedi-
ments, etc. Contentious or judicial jurisdiction (e.g.,
litigation between two office-holders) cannot be exercised
by a judge, ordinary or delegated, upon his own person,
because no one can judge his own case.81 This principle
does not, however, apply to the Sovereign Pontiff, because
"prima sedes a nemine judicature **
Laws being territorial, and no judge having a right
outside the territory allotted to him, none can exercise
jurisdiction outside his district.33 However, the Code
makes two exceptions: in favor of absolution8* and in
favor of a judge who is expelled from his territory or
forcibly prevented from exercising judiciary power.85
Voluntary jurisdiction, on the other hand, may be ex-
ercised (a) in one's own favor; thus, e.g., ore who has
received delegated power to dispense from fasting or
abstinence may apply it to himself. Absolution from
censures, however, if sacramental confession is required,
must be applied by another, although a priest who has
the faculty by delegation may subdelegate it to the priest
who hears his confession, (b) The bishop may exercise
81 L. un. Cod. Just, III, 5; c. 18, pune."
X, II, 1. a* Can. 401, I 2; can. 88r, |2.
82 Cf. 13, C 9, q. 3. 8* Can. 1637; — an example would
as C. 2. 6". I. 2: "extra trrri- be Clemens August of Cologne
torium ins dictnti non panbitur im- (1837).
s'c
,- , ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 202 18!
his ordinary or delegated power over his own subjects,
even if he is hie et nunc outside his diocese, for the law
does not restrict his power in this respect.8*
Clerics who study in a seminary or university situated
outside of their home diocese must apply for any disoen-
sation needed to their own Ordinaries.
Can. 202
§ 1. Actus potestatis iurisdictionis sive ordinariae
sive delegatae collatae pro foro externo, valet quoque
pro interno, non autem e converse
§ 2. Potes tas collata pro foro interno cxerceri
potest etiam in foro interno extra-sacramentali, nisi
sacrarnentale exigatur.
§ 3. Si forum, pro quo potestas data est, expressum
non fuerit, potestas intelligitur concessa pro utroque
foro, nisi ex ipsa rei natura aliud constet.
This canon establishes the relation between the forum
externum and the forum internum and hardly needs an
explanation. Of the two fora the more intensive and ex-
tensive is the forum externum; and hence, though one
may be absolved from censure (e. g., on account of a
mixed marriage contracted against the law) in the court
of conscience, he must nevertheless conduct himself like
one under censure until relieved of the latter by public
absolution. On the other hand, one who has received
public absolution must be considered as restored to full
communion. rl hus, also, a marriage acknowledged to be
null and void in foro interno cannot be so declared in foro
externo unless external proofs are given.8'
§ 2 states that power given for use in the court of
m Otherwise Puteer, /. c, p. 71 t. S» Putier, I. c, p. a8 f.
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
N
■
1&2 ECCLESIASTICAL PERSONS
conscience may be exercised outside the sacrament of
penance, although this is not the usual and generally pre-
scribed mode. Thus, e.g., dispensation from secret im-
pediments, vows, or irregularities may be applied outside
the confessional if the party concerned shrinks from
confession.38 But in cases where a dispensation can be
imparted by the confessor (regular) only, confession is
required.
duties of delegates
Can. 203
§ z. Delegatus qui sive circa res sive circa personas
mandati sui fines execdit, nihil agit.
§ 2. Hos tamen excessisse non intclligitur delega-
tus, qui alio modo ac deleganti placuerit, ea ad quae
delegatus est, peragit, nisi modus ipse fuerit a dcle-
gante praescriptus tanquam conditio.
A delegate who exceeds the limit of his mandate, either
concerning objects or persons, acts invalidly. But a
delegate does not transgress the limit if he exercises his
power in a manner (modus) other than that which would
please the delegons, unless the manner of exercising the
faculties conferred has been prescribed by the delegans
as a condition of validity.
Can. 204
§ 1. Quod quis Superiorem adit, inferiore praeter-
misso, non idcirco voluntaria suspenditur inferioris
potestas, sive haec ordinaria fuerit sive delegata.
§2. Attamen rei ad Superiorem delatae ne se im-
misceat inferior, nisi ex gravi urgentique causa; et hoc
in casu statim Superiorem de re moneat.
as ibid., p. 37 1-
{ ".vmiIp Original from
/^jOO^IC UNIVERSITY OF WISCONSIN
CANON 204 183
The voluntary jurisdiction, ordinary or delegated, of
an inferior authority is by no means suspended by direct
recourse to a superior. But if a case has been brought
before a superior, the inferior authority shall not inter-
fere, unless for a weighty and urgent reason, of which
the superior must be promptly informed.
Whoever acts as a delegate is supposed to have received
a commission or mandate, which must be observed as to
all its substantial injunctions. Our Code especially men-
tions two limits: objects and persons. When the ob-
ject or matter is mentioned expressly, e. g., a matrimonial
case, the delegate has no power to decide other cases.
■n
In some countries there are special marriage courts, to
whom no other cases are delegated. Again, when a cer-
tain class of persons (e. g.t clerics, sisterhoods) is men-
tioned in the mandate, the jurisdiction of the delegate
cannot be extended to other classes. If exempt religious
are expressly mentioned, the non-exempt are not in-
cluded.
The next paragraph bears upon procedure. Of course,
it takes for granted that the essential form prescribed by
common law is observed, unless expressly provided other-
wise in the mandate of delegation. But there is a margin
for accidental formalities; these are left to the judgment
of the delegate, which may differ from that of the dele-
gans. As in the case of rescripts, so here the intention
of the delegans must be ascertained from the text.39
When a special mode of procedure, differing from that
prescribed by common law, is enjoined, this must be fol-
lowed. If the mode is merely insinuated, without the
clause " non aliter" or * sic neque alio tnodo," or * si se-
cus fiat, irritu.m sit et inane," the delegatus may proceed
» Cfr. c. 22, X, I, 3. <J* reseripHs.
oogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
184 ECCLESIASTICAL PERSONS
according to his good pleasure, observing, however, the
essential solemnities of legal procedure, if this is pre-
scribed, or the tenor of his faculties. If no place is stated
by the delegans, the place of the parties must be chosen,
if it is safe.40 If no time is fixed, the business must be
finished within the tempos utile, i. e., a year from the date
of delegation, with due regard, however, to the nature of
the case as well as the distance of the parties.41 The rea-
son for keeping within the limits of the mandate is ex-
pressed in the Roman law, which states that he who does
not observe them appears to do something unauthorized.42
An analogue may be found in the case of diplomatic
agents, who receive instructions of a twofold kind, some
of which must be strictly followed, while others are left
to their discretion.
Can. 204 speaks of recourse to a superior, e. g.t from a
bishop to the Apostolic See. A recourse differs from an
appeal. The latter always supposes a sentence, either
interlocutory or final, whilst the former does not neces-
sarily suppose a sentence. The way to a higher superior
is open at any time. But the Code says that in case
of a recourse, the voluntary or non-judicial jurisdiction
of an Ordinary or a delegate is not suspended. There-
fore, for instance, a bishop may proceed with the investi-
gation of, say, a matrimonial case and even pronounce a
non-judicial sentence. But as soon as he is notified that
the parties are having recourse to the Apostolic Delegate,
or to Rome, he should stop his own procedure and not
vex the higher tribunals with importune insinuations, un-
less the case requires it, in which eventuality information
shall be welcomed by the higher authorities.
i<> C. 11, 6s, X, 3; c. 13, X, I, 09, I, 29, 11. 21 f.
41 C. a6. X, I, 39'. Santi-Leitner, 42 L. 5. dig. 17. 1.
>Ie
k ,|,, Original from
UNIVERSITY OF WISCONSIN
Q
CANON 205 185
several delegates
Can. 205
§ 1. Si plures iurisdictionem delegatam obtinue-
rint pro eodem negotio, ct dubitetur utrum delegatio
facta fuerit in solidum an collegialiter, praesumitur
facta in solidum in re voluntatis, collegialiter in re
iudiciali.
§ 2. Pluribus in solidum delegatis, qui antea ncgo-
tium occupavit, alios ab codcm excludit, nisi aut
posthac impediatur aut nolit ulterius in negotio pro-
cedere. v
§ 3 Pluribus collegialiter delegatis, omnes simul
pro actorum validitate in negotio expediendo proce-
dere debent, nisi in mandato aliud cautum sit.
Can. 206
Pluribus successive delegatis, ille negotium expe*
dire debet cuius mandatum anterius est nee posteriore
rescripto exprcsse abrogatum fuit
A decretal43 of Celestine III (1191-1198) says that the
Apostolic See rather appoints several delegates than one,
in order that the judgment may be solid. This may be
done in such a manner that the several persons delegated
are responsible in solidum, i. e.> each one of them
is responsible conjointly with the others for the whole
thing, for instance, a payment, or a judgment, or bail, —
or severally pro rata, i. e., each for his proportionate share.
If they have jurisdiction in solidum, the whole jurisdic-
tion resides in each one, and each may therefore decide
the case by himself without the cooperation of the others.
Again, several may be delegated as one body or quasi-
♦•Gai.X, I. a*
v ,1,., Original from
UNIVERSITY OF WISCONSIN
>gk
186 ECCLESIASTICAL PERSONS
corporation (collegialiter), and in that case all have to
proceed conjointly in order to act validly.44
Concerning delegation in solidum, our Code says it
must be presumed in voluntary or non-judicial juris-
diction, because voluntary jurisdiction does not essentially
require the formalities of procedure, nor does it, gen-
erally, infringe upon the rights of others. But judiciary
jurisdiction is supposed to be given to the body as such
or collegialiter™ In the latter case, as § 3 states, all the
judges have to proceed at the same time, like a jury, 1. e.,
they must commence the trial by a simultaneous sum-
mons/6 which is the first judicial act. This formality is
so important that the defendant may refuse to appear if
not all the names of the corporate judges are named in
the summons.
Then again all essential judicial acts, such as the hear-
ing of witnesses, issuing interlocutory or final sentences,
must be made by all the judges in unison.
It is otherwise with the delegatio in solidum (§ 2), be-
cause in that case the one who issues the summons first
is entitled to proceed to the exclusion of the others. Only
in case one is prevented by sickness or some other impe-
diment, or does not proceed within the appointed time
(one year) to finish the affair, another may take his place.
When several judges have been delegated, neither in
solidum nor collcgialitcr, but merely successive, then
it depends upon the date of the rescript issued by the
delegans.
If the case is of voluntary jurisdiction the rescript is
presumed to be one of favor ; if the case is of contentious
44 Santi-Lcitner, I, 29, n. aj. rescript or mandate containi the
46 Cfr. cc. 2, 16, 2i, 22, 23, X, clause that in case of a legitimate
I, 29; tit 14 in 6". impediment two may proceed with-
40 C -•-, X, I, *9\ — unices the out the third one; ibid.
xr%\rt Original fro m
UNIVERSITY OF WISCONSIN
>gle
CANON 207 187
jurisdiction, the rescript is presumed to be one of justice.
In the former instance, consequently, the date is a dies
datae, or the day when issued by the delegans; in the lat-
ter, it is the dies presentatae or date when the letters are
shown to the parties interested or the execution of the
rescript takes place.47 But it is safe to say that every
rescript of delegation effectively is a rescript of justice
or at least one which needs an executor, and hence only
the date of presentation may here be considered ; *8 for
the parties have a right to have the rescript " shown " to
them.
cessation of delegated and ordinary jurisdiction
Can. 207
§ 1. Potestas delegata exstinguitur, expleto man-
date; elapso tempore aut exhausto numero casuum
pro quo concessa fuit; cessante causa finali delega-
tionis; revocatione delegantis delegato directe inti-
mata aut renuntiatione delegati deleganti directe ul-
timata et ab eodem acceptata; non autem resoluto
iure delegantis, nisi in duobus casibus de quibus in
can. 61.
§ 2. Sed pot estate pro foro inter no concessa, actus
per inadvertentiarn positus, elapso tempore vel exhau-
sto casuum numero, validus est.
§ 3. Pluribus collegialiter delegatis, si unus defi-
ciat, aliorum quoque delegatio exspirat, nisi aliud ex
tenore delegationis constet.
Can. 208
Ad normam can. 183, § 2, potestas ordinaria non
47 Cf. c 8, 6°, I, 14; can. 38; « C. 12, X, II, 28; c. 1, Extrav.
can. 48. Comm. I, 3 de elcctione.
oogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
188 ECCLESIASTICAL PERSONS
exstinguitur resoluto iure concedentis officium cui
adnexa est; sed cess at, amisso officio; silet, legitima
appellatione interposita, nisi forte appellatio sit tan-
tum in dcvolutivo, firmo praescripto can. 2264, 2284.
Can. 209
In crrore conununi aut in dubio positivo ct proba-
bili aivc iuris sivc facti, iurisdictionem supplct Ecclc-
sia pro foro turn extcrno turn interne
In can. 207, § 1, six modes are enumerated by which
delegated power ceases. These apply indiscriminately
only to jurisdiction in foro externo, because § 2 of the
same canon modifies two of them in regard to the court
of conscience by ordaining (1) that the mandate is ful-
filled if the sentence has been pronounced or the rescript
has been executed,48 because after the sentence one ceases
to be judge; (2) if the time has expired, if a certain time
was fixed, which commences, as said above, from the date
when the documenet of delegation was presented;60 (3)
if the number of cases (for instance, twenty) is exhausted.
These two latter modes of expiration do not affect the
forum internum if a confessor should, by oversight, ab-
solve in one more case than allowed, or if he should
absolve beyond the time granted by the indult.51 But
since the forum internum is generally mentioned, and this
comprises the confessional as well as extra-confessional
application,62 we believe we are justified in saying that
any act, either in the confessional or outside of that tri-
bunal, performed by oversight with regard to the time or
P
4B C. 0, X. I, 39: I. 55. dig. 42. W atolica indulta," Aug. 5. 1744. 58 3.
L 1, Cod. Just. VII, 52. 6; " Apostolicum ministcrium," May
SO C 4. X, I, 29; c. 12, X, II, 28. 30, 1753. I 3 (for England).
•1 Stricter Benedict XIV, "Apo' 82 Can, 194.
oogle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 209 189
number of cases, is valid. Thus a dispensation executed
outside the confessional, but intended for the court of
conscience, would be valid even if applied by mistake be-
yond the specified time and number. (4) If the motive
cause of a delegation ceases (e. g.t an indult given for a
solemn occasion, as a jubilee) the jurisdiction ceases; (5)
if the delegans expressly (not only tacitly) revokes the
delegation and the repeal is duly made known to the dele-
gate. Note that the delegans may revoke a delegation
at any time, even though the delegate has given the case
a legal turn by summoning the parties. But the delegate
who has subdelegated the whole jurisdiction to another is
not entitled to revoke the subdelegation if the business
had already taken a legal turn.58 (6) If the delegate re-
signs (or refuses) the delegation and the resignation is
accepted, the delegation ceases.
Generally speaking, no one can be compelled to be a
delegate, unless the delegans has jurisdiction proper over
him. Thus the Pope can compel any prelate or clergy-
man to accept a delegation, an Ordinary can compel any
clergyman of his jurisdiction but not a clergyman of an-
other diocese ; a metropolitan cannot force one of his
suffragans to accept a delegation.54
The first pragraph of our canon, modifying the old
law," says that only in two cases a delegation expires by
one's going out of office. They are the cases mentioned
in can. 61, vis., if a clausula to that effect had been in-
serted in the mandate, or if power was given to grant a
favor to particular persons mentioned in the rescript, as
long as the matter has not taken a legal turn.
If several delegates had been appointed cotlegialiter, the
power of all of them ceases when one fails either by
e> c. 6. 6°, i, 14; c 37. X. I, 29; b* c. iit X, I, 31.
e. 7, 6", I, 14. 05 Cc. 14, 42, X, I, *9-
§le
% ,|,, Original fro m
UNIVERSITY OF WISCONSIN
igo ECCLESIASTICAL PERSONS
death, or accepted resignation, or by the infliction of a
penalty implying the loss of ecclesiastical power.
Can. 208 speaks of the loss of ordinary power. It
a
says (1) that even if the superior who has conferred the
office to which that power is attached goes out of office
by death, resignation, transfer, or privation, the power
is not lost. Hence the bishops of the U. S., who are
appointed by the Pope, do not lose their ordinary power
by a vacancy in the Holy See. (2) The ordinary power
is lost if the office itself is lost. Thus, if a bishop dies
or resigns or is deprived of his office, his power ceases.
(3) The power becomes quiescent or silent if an appeal
is made to a higher authority or instance, provided, of
course, the appeal is in suspensivo, not in devolulivo, for
as the former term implies, by such an appeal the juris-
diction of the inferior is suspended.00 If one who is ex-
communicated or suspended °7 has rendered a declaratory
or condemnatory sentence, the sentence itself is null and
void, and consequently the appeal will be of no conse-
quence, i. e., it does not suspend the ordinary power.
Can. 209 provides for the common good and public se-
curity as well as for the tranquillity of conscience by re-
affirming the well-known principle that the Church sup-
plies the necessary jurisdiction zvhen a common error or
a positive doubt arises. Of course, the common error,
to have this effect, must be accompanied by a tititlus colo-
ratus or an apparent title to the office one exercises. An
intruder has no such claim.5' But if an Ordinary or
confessor were commonly but erroneously supposed to
have the necessary faculties, the Church would supply
the defect of real jurisdiction. The same effect is pro-
duced by a positive and probable doubt, i. e., one which
a
so Concerning appeals mc can. 67 Can. 2264, 2284.
1879 ff. 08 Reiffenituel, II, I, n. aoo.
'le
k ,] , Original from
UNIVERSITY OF WISCONSIN
-
CANON 209 191
for certain reasons and circumstances inclines more to
one side than to the other, in this case more to the side
of the power being vested in the person whose court is
sought. Whether this doubt regards the facts or the law
is immaterial. A doubt regarding a fact would be
whether a particular Ordinary or priest has a certain
faculty; a doubt regarding the law (ius), whether the
case falls under his jurisdiction. To quiet consciences
the Church, out of the fulness of her power, supplies the
defective jurisdiction and renders valid acts which would
otherwise be invalid.
power of order
Can. 210
Potestas ordinis, a legitimo Superiore ecclesiastico
sive adnexa officio sive commissa personae, nequit aliis
demandari, nisi id expresse fuerit iure vel indulto con-
cessum.
This canon says that the power of order attached to an
office or entrusted to a person by a legitimate superior,
cannot be delegated to others, except by express permis-
sion either contained in the law or granted through an
indult.
The power of order is the power imparted by ordina-
tion and is separable from that of jurisdiction. The term
is here used of episcopal or pontifical power, as the
priestly power and that attached to lower orders can
hardly have entered the mind of the legislator.59
Pontifical power comprises that for which either the
episcopal order is required or which can not be exercised
50 Thi» U clearly seen from the note* of Card. Gasparri to toil canon.
oogle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
192
ECCLESIASTICAL PERSONS
without the use of holy oils.80 To this category belong
the conferring of orders, confirmation and the consecra-
tion of sacred edifices w and utensils with chrism. These
faculties belong by right to consecrated bishops. How-
ever, the power of conferring minor orders may by a
special indult of the Pope be delegated to a priest. The
same is true of the power of confirmation and consecrat-
ing churches.08 By law, abbots nullius and vicars Apos-
tolic may confer confirmation, tonsure and minor orders
and consecrate altars; abbots regiminis, if blessed, may
confer minor order on their own subjects.68 Whether
the power of conferring subdeaconship and deaconship
may be commissioned to a priest, is uncertain. Since the
pontificate of Innocent VIII (1484-1492) we do not hear
of any such privilege being granted to a priest or abbot.
And even the bull ascribed to that pope has been strongly
assailed as to its genuineness." Some defend, others
attack it, but the controversy has no practical value.
00 Benedict XIV, "Apcstolioum
ministerium," May 30, 1753, fi 3.
fll/d., Ep. ad Eogelhardtum
{Bull., Prat!, III, p. 44s ft*.)-
82 Ibid., and " Apostolicum minis*
terium," 91 41 9; D* Syn. Dioec,
VII, 2 U
68 Can. 783, 8 3: 957, 8 a; 964-
8* Cfr. Bachofen, Compendium
Juris Reg., 1903. p. 256; Pohle-
Preuia, The Sacraments, IV, 124;
Catkolie Fortnightly Review, 1917,
St Louis, pp. 67 if.
gle
Original from
UNIVERSITY OF WISCONSIN
TITLE VI
RETURN OF CLERGYMEN TO THE LAY STATE
p
Can. 2ii
§ i. Etsi sacra ordinatio, semcl valide recepta, nun-
quarn irrita hat, clericus tamcn maior ad statum
laicalem redigitur rescripto Sanctae Sedis, decreto vel
sententia ad normam can. 214, demum poena degrada-
tionis.
§ 2. Clericus minor ad statum laicalem regreditur,
non solum ipso facto ob causas in iure descriptas, sed
etiam sua ipsius voluntate, praemonito loci Ordinario,
aut eiusdem Ordinarii decreto iusta de causa lato, si
netnpe Ordinarius, omnibus perpensis, prudenter iudi-
caverit clericum non posse cum decore status clericalis
ad ordines sacros promoveri.
Can, 212
in
§ 1. Qui in minoribus ordinibus constitutus ad sta-
tum laicalem quavis de causa regressus est, ut inter
clcricos denuo admittatur, requiritur licentia Ordinarii
dioecesis cui incardinatus fuit per ordinationem, non
concedenda, nisi post diligens examen super vita et
moribus, et congruum, iudicio ipsius Ordinarii, expe-
rimentum.
§ 2. Clericus vero maior qui ad statum laicalem
rediit, ut inter clericos denuo admittatur, indiget San-
ctae Sedis licentia.
193
"-.
jle
Original from
UNIVERSITY OF WISCONSIN
■
pi
194 ECCLESIASTICAL PERSONS
Can. 213
§ 1. Omncs qui e clericali statu ad laicalem legi-
time redacti aut regressi sunt, eo ipso amittunt officia,
beneficia, iura ac privilegia clericalia et vetantur in
habitu ecclesiastico incedere ac tonsuram dcferre.
§ 2. Clericus tamen maior obligatione coelibatus
tenetur, salvo praescripto can. 214.
Can. 214
§ z. Clericus qui metu gravi coactus ordinem sacrum
recepit nee postea, reraoto metu, eandem ordinationem
ratam habuit saltern tacite per ordinis exercitium, vo-
lens tamen per talem actum obligationibus clericalibus
se subiicere, ad statum laicalem, legitime probata
coactione et ratihabitionis defectu, sententia iudicis
redigatur, sine ullis coelibatus ac horarum canonica-
rum obligationibus.
§ 2. Coactio autem et defectus. ratihabitionis pro-
bari debent ad normam can. 1993-1998.
Although sacred ordination, once validly received, can
never be annulled, a clergyman in higher orders may be
reduced to the lay state by a rescript of the Holy See, by
a decree or sentence issued in accordance with can. 214,
or, finally, by degradation. '
A cleric in minor orders is reduced to the lay state not
only ipso facto for reasons stated in the law, but may also
return thereto of his own accord, after having informed
the Ordinary of the diocese, or by virtue of a decree is-
sued by the same Ordinary for just reasons, if the latter
upon due deliberation prudently judges that the cleric
cannot be promoted to higher orders without disparage-
ment to the clerical state.
oogle
fcrtl,* Original from
UNIVERSITY OF WISCONSIN
CANON 214 195
Clerics in minor orders who have returned to the lay
state, cannot be again admitted to the ranks of the
a
clergy, unless the Ordinary of the diocese in which they
were incardinated grants the necessary permission, which,
however, should not be given except after a careful in-
vestigation of their life and conduct, and, if deemed
opportune, upon suitable trial or test of character.
A cleric in higher orders who has returned to the lay
state, may be readmitted to the ranks of the clergy only
by leave of the Holy See. All those who are reduced
from the clerical to the lay state thereby lose their cleri-
cal offices, benefices, rights, and privileges and are no
longer allowed to wear the clerical garb and tonsure.
A cleric in higher orders remains bound by the law of
celibacy, save in the case mentioned in can. 214.
A cleric who was compelled under grievous fear to re-
ceive a higher order, and has not ratified the ordination at
least tacitly by the performance of an act proper to the
order received, should be reduced to the lay state by a
sentence of the ecclesiastical judge given after the coer-
cion and the defect of ratification have been duly proved;
in which case he is bound neither by the obligation of
celibacy nor by that of reciting the canonical hours.
The first three centuries were severe in meting out
penalties to clerics. They were treated much like lay-
men.1 In the fourth century a noticeable mitigation was
introduced. Clerics who had committed a serious
crime 2 were deposed but permitted to stay in the com-
munion of laymen. Communio laica then meant that a
cleric was reduced to the position of a layman and could
1 Funk, Manual of Church His- theft, absence from the diocese; cfr.
tory, 191 j, I, 197. A]ju3t. Canon*, 25, 61; Smith-Chect-
S Capital crimes were: apostasy, ham. Dictionary of Christian A**
homicide, adultery (moechia); acri- tiquittes, 1880, II, 947.
out crimes: fornication, perjury.
jle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
196 ECCLESIASTICAL PERSONS
receive holy communion, but outside the bema or railing
which divided the nave from the presbytery. This miti-
gation, which certainly occurs in the fourth century, was
introduced for the reason that, as St. Basil 8 as well as the
Apostolic canons say, a cleric should not be punished
twice. Later synods generally combine this penance with
that of being confined in a monastery with the right of lay
communion. As a penalty following degradation, the re-
duction of clerics to the lay state is amply testified to in
the Decretals.* But examples of dispensation from
higher orders, or, more correctly, from the obligations
attaching thereto, are very rare in history, at least to our
knowledge. Perhaps one of the best known examples is
that of King Casimir of Poland in the eleventh century ,s
but not many more examples could be adduced, unless, of
course, where a trial ex metu was instituted.
The above historical note has touched upon the three
reasons which may bring about a reduction to the lay
state, as outlined by can. 21 1, § 1. The first is a re-
script of the Holy See to the effect that, notwithstand-
ing a validly received higher order (which is indelible),*
a cleric is free from the law of celibacy, the obligation
of the Breviary, and other duties. It is evident that
weightier reasons are required for a dispensation from
the obligations attached to deaconship dian from those
attached to subdeaconship. The second reason is a f*4i*
cial sentence concerning the reception of a higher order
from fear or coercion, as seen under can. 204. The third
reason is degradation, which comprises deposition, priva-
tion of clerical prerogatives, and reduction to the lay
8 Ad AmphilocK, c. 32. B Sczygickkl, Aqutia Potono-Btni-
AC. 10. X, II, i| c. p, X, V, 7; dietina, 1663, p. Q4 f
c. 27, 4, V, 40. a Trid., tess. 23, can. 4, c. 4 de
ordinc
>Ic
( "* ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 214 197
state, and can be inflicted only for crimes stated in the
law and after a duly conducted trial or confession.'
A cleric in minor orders may be reduced to the lay state
if he does not wear the clerical dress, as stated above,8
or if he spontaneously enlists in the army ; B thus also a
dismissed religious, especially if he has made profession
by deceit.10 But the Ordinary may pass judgment, if he
finds reason for not admitting a cleric to higher orders,
because minor orders were instituted precisely for the
purpose of testing character, or as a kind of clerical
novitiate.
Can. 212 establishes the conditions for readmissicn to
the clerical state. Formerly a rather mild practice was
defended,11 but to-day, in order to guard against fraud
and rashness, readmission is only allowed with the direct
permission of the Ordinary, if the clergyman is in minor
orders ; if he is in higher orders, a rescript of the Holy
See is necessary."
Canon 213 treats of the effects of the reduction of a
cleric to the lay state. They are, first and above all, the
loss of all the ecclesiastical offices and benefices held by
the delinquent, which therefore become vacant from the
moment the rescript is received, or the sentence is uttered
according to can. 1993 f., or the sentence of degradation
is issued. A second effect is the loss of clerical preroga-
tives and the prohibition of wearing clerical distinctions,
hence the privilegium fori, canonis, and immunitatis,
which the so-called diaconi selvaggi (roaming deacons)
in the former Neapolitan Kingdom used to claim, are
lost."
t Can. 3305, 3314, 3343, *354» ll Benedict XIV, Da Sjn. Diorc.
»3«l, »3g8. XTI. 3, 1 ff-
• Can. 136, | 3. 12 Pontifical* Rom., tit. degra-
• Can. 141 9 J. datonis forma.
10 Can. 648; can. 3367. as Cfr. cc 1, 3, 7, 9, X, III, 3;
c. on. 6°, I, is.
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
198 ECCLESIASTICAL PERSONS
§ 2 of can. 213 appears to us incomplete. We under-
stand, indeed, that the law of celibacy remains after the
sentence of degradation, but ceases after the sentence
ex metu. But what if a rescript of the Holy See is ob-
tained for a subdeacon? Is he bound to observe celi-
bacy? If so, in most cases the object will not be
achieved. From the recital of canonical hours all are
freed, for the Code makes no distinction.
Can. 214 alludes to a case that may happen and has
happened in the Greek (Coptic) Church, which permitted
the ordination of infants, which, as Benedict XIV says,1*
was valid though illicit. Such ordinations are not likely
to happen now-a-days. But moral coercion — physical
coercion would exclude validity for lack of consent —
may still be brought to bear, especially on devoted and
timorous children, by importune entreaties, inducements
or threats of ill will, displeasure and disinheritance.10
When one submits to ordination under such influences,16
the ceremony is valid, because the voluntariness of the
consent is not simply excluded. The fear may be re-
moved after ordination and the ordained person find him-
self between two horns of a dilemma: Should I exercise
sacred functions or not? And if I do, do I thereby ratify
my ordination? The answer lies in that apposition
"volens tamen," somewhat clumsily inserted. If such a
one, in exercising a sacred function, has the strict inten-
tion of complying with obligations attaching to the cleri-
cal state, he is supposed to ratify the ordination received
under the pressure of fear. But if he has no such inten-
tion and performs the sacred function materially
or mechanically, because he was told to do so, or for
14 " Eo quamvis tempore," May 10 Richtcr, Trid., 175, n. 6; phj-
4. »745. I '7J " Probe te," Dec. 15, tical enaction, ibid., n. 4.
175 1. I 31 D* Syn. Diotc, XII, 4. 18 Can. 103, 5 a.
a !.
Go >gle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 214 199
fear of causing a disturbance, the intention of ratifying
is absent and hence the function cannot be regarded as a
sign of consent or ratification. However, in case such a
one performs a sacred function, the presumption is al-
ways that he means to ratify his ordination, unless he
protests to some trustworthy witness. All such cases
must be referred to the S. C. Sacr. If the one thus or-
dained wishes to be freed from the obligations attendant
upon sacred orders, the S. Congregation shall refer the
case to the court of the diocese to which the plaintiff be-
longs. In order to be free from these obligations two
uniform sentences are required.17
IT Cfr. can. 199J-1998.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
■
SECTION II
THE HIERARCHY
After having explained the difference between clergy
and laity and described the clerical state with its rights
and duties, as well as ecclesiastical offices in general, the
Code proceeds to treat of the ecclesiastical hierarchy, be-
ginning with the Supreme Pontiff. The term hierarchy
is here chiefly, though not exclusively, taken in the juris-
dictional sense. However, although the Catholic Church,
in its universal aspect, forms a compact and perfect so-
ciety, embracing all baptized Christians, yet de facto there
is also a local organization, which parcels out the Catho-
lic world into various districts with minor divisions.
Hence the Code first mentions
the local organizations
Can. 215
§ x. Unius supremae ecclesiasticae pot es tat is est
provincias ecclesiasticas, dioeceses, abbatias vcl prac-
laturas nul!ius, vicariatus apostolicos, praefecturas
apostolicas erigere, aliter circumscribere, dividere,
unire, supprimere.
§ 2. In iure nomine dioecesis venit quoque abbatia
vel praelatura nullius; et nomine Episcopi, Abbas vel
Praelatus nullius, nisi ex natura rei vel sermonis con-
textu aliud constet.
900
jle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
-
-
CANON 216 201
Can. 216
§ z. Territorium cuiuslibet dioecesis dividatur in
distinctas partes territoriales ; unicuique autem parti
sua peculiaris ecclesia cum populo determinate est as-
signanda, suusque peculiaris rector, tanquam proprius
eiusdem pastor, est praeficiendus pro necessaria ani-
marum cura.
§ 2. Pari modo vicariatus apostolicua ct praefe-
ctura apostolica, ubi commode fieri possit, dividantur.
§ 3. Partes dioecesis de quibus in § i, sunt paroe-
ciae; partes vicariatus a po stolid ac praefecturae apo-
stolicae, si peculiaris rector eisdem fuerit assignatus,
appellantur quasi-paxoeciae.
§4. Non possunt sine speciali apostolico indulto
constitui paroeciae pro diversitate sermonis seu natio-
nis fidelium in eadem civitate vel territorio degentium,
nee paroeciae mere familiares aut personales ; ad con-
stitutas autem quod attinct, nihil innovandum, incon-
sulta Apostolica Sedc.
Can. 217
§ 1. Episcopus territorium suum in regiones seu di-
strictus, pluribus paroeciis constantes, distribuat, qui
veniunt nomine vicariatus foranei, decanatus, axchi-
presbyteratus, etc.
§ 2. Si haec distributio, ratione circumstantiarum,
videatur impossibilis aut inopportuna, Episcopus con-
sulat Sanctam Sedern, nisi ab eadem iam fuerit pro-
visum.
The supreme ecclesiastical power alone is competent
to erect, circumscribe, divide, unite or suppress ecclesi-
astical provinces, dioceses, abbies or prelatures nullius,
Apostolic vicariates and prefectures.
jle
v %\^ Original fro ni
UNIVERSITY OF WISCONSIN
ECCLESIASTICAL PERSONS
Under the name of diocese the law comprises also an
abbey or prelature nullius; and by the name of bishop it
understands also an abbot or prelate nullius, unless the
nature of the matter or the context require a different in-
terpretation. The territory of each diocese should be
distributed into districts, and to each of these assigned a
special church with a determined part of the flock, over
which is to be placed a local pastor, who shall take the
necessary care of souls.
Similarly should be divided, wherever possible, vicari-
ates and prefectures Apostolic.
The minor divisions of a diocese mentioned in § I are
called parishes; the minor divisions of a vicariate or pre-
fecture, if they have their own rectors, are called quasi'
parishes.
Henceforward no parishes are to be established for
faithful of diverse language or nation in the same city or
territory without a special Apostolic indult. In regard to
such parishes already existing, nothing is to be changed
without the advice of the Holy See.
Every bishop is to divide his territory into districts,
each comprising several parishes, to go by the name of
foraneous vicariates, deaneries, archpresbyteries, etc.
Where by reason of special circumstances such a di-
vision is impossible or infeasible, the bishop should con-
sult the Holy See, unless the latter has already made pro-
vision.
The meaning of these canons is evident and only
requires a few historical remarks.1 When the first
epoch, marked by itinerant preachers and ministers, had
passed, the local organization alone remained. This ex-
tended from cities to suburbs, with areas 2 of widely dif-
-
<
1 Duchesne (ir. by McClure), * A diocese, before Constantinc,
Christian Worship, 1903, p. U ff. wu a minor portion of a province,
gle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 217 303
ferent proportions, but the center of gravitation was the
city where the bishop dwelt. It was generally held that
each city should have its bishop with its own clergy.
That these several bishoprics or churches formed an
ecclesiastical province similar to the political provinces,
cannot be proved for the first three centuries. Neither
did the existing prominent churches imitate the civil divi-
sions except in so far as there was a geographical connec-
tion. It was natural that Rome should be looked upon
as the center of Christendom, as it was not only the
capital of the Orbis Romanus, but also the place hallowed
by the two chief Apostles and consecrated by their mar-
tyrdom. Thus the successors of St Peter were already
in the first three centuries the acknowledged metropoli-
tans of the West, which comprised the Italian peninsula,
and later Western Illyricurn with Gaul, and still later
the Spanish provinces. The Council of Nicasa (325).
comparing Rome with the sees of Alexandria and
Antioch, referred to the metropolitan organization of the
former as an established fact.8 Alexandria and Antioch
in the East retained for centuries their influence over the
districts which had been allotted to them. In the reign
of Theodosius I (379-395). the five civil provinces of
the Orient (Pontus, Asia, Thrace, and Egypt) had their
ecclesiastical heads, who were later (fifth century) called
patriarchs: the Orient with Antioch, Alexandria with
Egypt, and Pontus, Asia, and Thrace under the newly es-
tablished metropolitan of Constantinople, who, as occu-
pant of the see of New Rome,4 claimed the right of con-
secrating the bishops of these three provinces — i. e.,
called rapotKla, parish; bat after has various readings; cfr. MaasBen,
Const, a diocese signified a dii- Gesch. d. Quelle*, I, 19; c. 6, Dist
trict or area comprising several 65.
provinces. 4 C 3 Constant. I; c. 38 Chalced.
8 Council of Nicaea (325), c. 6
* I Inr.oItf> Original from
lOOglt. UNIVERSITY OF WISCONSIN
204 ECCLESIASTICAL PERSONS
jurisdictional, hierarchic power over them. Thus the
exarchs or metropolitans of Heraclea in Thrace, of
Ephesus in Asia, and Caesarea of Pontus dwindled to
lower rank, whilst Jerusalem, under the intriguing Ju-
venal, arose after the council of Chalcedon to the rank
of a patriarchate, until Islam invaded the East. In the
West we hear but little of metropolitans, if we except
Milan, Aquileja, and Ravenna. Spain and Gaul show
few traces of true organization with the sole exception
of the Vicariate of Aries, founded by Pope Zosimus
(417-418), which, however, proved a failure.8
More effective was the organization introduced by St.
Boniface, the " Apostle of Germany," who acted strictly
according tQ regulations received from Rome. A favor-
ite theme of Pseudo-Isidore was the introduction of Pri-
mates? of whom we hear as early as the fifth century,
assuming that they are identical with the vicars of the
Apostolic See. Thus, besides Aries, a vicar was cre-
ated at Thessalonica,7 and St. Boniface, as metropolitan
of Mayence, was Primate of Germany. Later on the
Primate of Hungary succeeded in upholding that title.
In England, as we know from the history of the conver-
sion of that country, St. Gregory had intended to erect
two provinces.8 Pope Nicholas I amalgamated the see
of Bremen with the archbishopric of Hamburg. From
the eleventh century onward the erection of bishoprics
was reserved to the Holy See,9 so that not even the papal
legates were allowed to make a change in the territorial
condition of dioceses.10
Q
B Duchesne, /. e., p. 39. 9 C. I, DiBt m; Diotatus Greg.
• Cfr. ec 1, i, List. 80; c. 1 f. VII, o. 7 (Migne 148, 407); c 1,
Dist. 99. X, I, 7.
T Due heme, /. c, p. 42. 10 C. ?, X, I, 7; c. 4, X, I, 30;
a I-ir.ff.it 1, Anglo-Saxon Church c 4, 6°, I, 15.
U. a.), I, ioy.
ioi >gle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 217 205
The erection and delimitation of new dioceses was gen-
erally effected in forma bullae or by a document called
11 bull of circumscription."
In countries which maintained diplomatic relations with
the Holy See, the civil government cooperated with the
former in the act of circumscription as well as in the
carrying these documents into effect. Where, however,
there was complete separation between Church and State,
the Holy See established or reestablished dioceses
by papal bull. Thus Gregory XVI, by his Constitution
" Benedictus Deus" of July 17, 1834, laid down the
boundaries of several dioceses and Pius IX, Jan. 24, 1868,
increased the number of dioceses in the U. S. By the
bull " Universalis Ecclesiae," of Oct. 1, 1850, Pius IX re-
established the hierarchy in England.11 The whole
business of erecting and changing the boundaries of dio-
ceses now lies with the S. C. Cbnsistorialis.1*
The new Code insists upon strict organization of dio-
ceses proper and parishes with due regard to the distinc-
tion between dioceses and vicariates. For the latter § 2
makes allowance, "ubi commode fieri potest" But the
distribution of dioceses into parishes must be enforced.
For our country the passage referring to parishes of d«/-
ferent languages is important, because in future none but
English-speaking parishes can be erected without a spe-
cial Apostolic indult. This law we consider very oppor-
tune because it does away with inconveniences arising
from uncertain boundaries and puts the division on the
basis of territory, which alone should be considered for
administrative purposes. But as to carry the law into
effect at once would cause difficulties, the legislator mod-
erates the law as to the existing parishes. Par-
11 Kirch* nlexik o n, and ed., J. V. « Can. 348, 1 2.
*' Circumscription «bullen."
gle
f^ ^ ^ ,L» Original fro m
UNIVERSITY OF WISCONSIN
zo6 ECCLESIASTICAL PERSONS
ishes for a certain number or class of families, especially
of the nobility, such as exist in Spain, are unknown in
America.
The Code, with some restrictions, also insists upon the
erection of rural deaneries. The scope of this provision
is apparent from can. 131, which urges conferences of
the clergy for each rural district, as also from cc. 445 n\,
which define the duty of deans to watch over the clergy
of their districts.
G I Originalfrom
008IL UNIVERSITY 0FWI5C0NSIN
Q
TITLE VII
THE SUPREME POWER AND THOSE WHO PARTAKE
THEREOF BY ECCLESIASTICAL LAW
! CHAPTER I
the roman pontiff
Can. 218
§ i. Romanus Pcntif ex, Beati Petri in primatu Suc-
cessor, habet non solum primatum honoris, sed su-
premam et plenam potestatem iurisdictionis in univer-
sam Ecclesiarn turn in rebus quae ad fidcm et mores,
turn in iis quae ad disciplinam et regimen Ecclesiae
per totum orbem diffusae pertinent
§ 2. Haec potestas est vere cpiscopalis, ordinaria
et immediata turn in omnes et singulas ecclesias, turn
in omnes et singulos pastores et fidelcs, a quavis hu-
mana auctoritate independens.
Can. 219
Romanus Pontifex, legitime electus, statim ab ac-
ceptata electione. obtinet, iure divino, plenam supre-
mae iurisdictionis potestatem.
Can. 220
Gravioris momenti negotia quae uni Romano Pon-
207
>Ie
k ,|rt Original from
UNIVERSITY OF WISCONSIN
p
208 ECCLESIASTICAL PERSONS
tifici reservantur sive natura sua, sive positiva lege,
causae maiores appellantur.
Can. 221
Si contingat ut Romanus Pontifex renuntiet, ad
eiusdcm renuntiationis validitatem non est ncccssaria
Cardinalium aliorumve acccptatio.
The Roman Pontiff, being the successor of St. Peter,
possesses not only an honorary primacy, but supreme and
full power of jurisdiction in the whole Church concern-
ing matters of faith and morals as well as of discipline
and government.
This power is truly episcopal, ordinary, and immediate,
extending to each and every church no less than to each
and every pastor, and to all the faithful, and is inde-
pendent of every human authority.
The Roman Pontiff, lawfully elected, obtains by divine
right full power of supreme jurisdiction at the moment
when he accepts office. All affairs of major import
(causae maiores), by their nature or by positive law, are
reserved to the Roman Pontiff,
If the Roman Pontiff resigns his office, the resignation
is valid without its acceptance by the cardinals or any one
else.
These four brief canons embody the Catholic doctrine
of the Roman Pontiff, on which many volumes have been
written and which is fully treated in every manual of fun-
damental theology. We will limit our comments to a
few canonical observations.
All those who pervert the essential divine organization
of the Church as a perfect society of the monarchical
type, necessarily deny the power of the Roman Pontiff.
sd by GoOgle
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 221 209
The so-called democrats of the later middle ages (Mar-
silius, Jandunus, Wiclif, and Hus) were deliberately
bent on destroying the pure notion of papal power.1
But the Jansenists, Gallicans, and Josephinists were also
far from the true idea of papal power. They gave the
Supreme Pontiff the title "caput tninisteriale" somewhat
like a premier, or first among equals 2 (primus inter
pares) , but denied to him jurisdictional primacy over
bishops and priests.* Pius VI, by the " Auctoretn fidei,"
Aug. 28, 1794, condemned the doctrine of the "caput
ntinisteriale," which meant that the supreme power was
given to the Church as such, and only by and through the
deference and connivance of the Church at large to the
Pope. Finally the Vatican Council, summing up the tra-
ditional belief and many concHiary decisions, expressed
the Catholic belief in its fourth and last session, held
on July 18, 1870, which is embodied in our canon.4
Hence, (1) the power of the sovereign pontiff is truly
a primacy of jurisdiction, which means not only inspec-
tion or direction, but legislative, judiciary, and executive
power.6
(2) This power is supreme by reason of its dig-
nity, because it is not derived from human authority, but
is of divine origin, independent of any one in the same
category.
(3) It is the plenHtude of power, because it com-
prises all and every power needed for the attainment
of the end for which the Church was founded. There-
fore (a) all matters of faith and morals are subject to
this power by reason of the infallible magisterium; (b)
1 Cf. Denzinger, Enchiridion, ed. 4 Ibid., nn. 1667-1677 (Sesi. IV,
9, 1900, nn. 513, 528, 534, 589. c. 3, de const. Eccl.).
2 Ed. Richer, Dt Ecclesiastica el 6Piui V, "Auctorem fidei," n.
Politic* Potistatf, ifiu. 5 (Den ringer, I. c, n. 1368).
I Denzinger, /. c, nn. 1366, 1369.
>Ic
( * ^ -. -A,-* Original fro m
UNIVERSITY OF WISCONSIN
210 ECCLESIASTICAL PERSONS
the whole ecclesiastical administration belongs to it in
virtue of the sacred mtnisterium; (c) the whole govern-
ment of the Church may be claimed by the Pope by rea-
son of the full and undivided imperium.
(4) The power of the Pope is episcopal, inasmuch as he
is the supreme pastor whom the whole flock, of whatever
rite or dignity, by reason of hierarchic subordination must
follow and obey, and with whom all must be united.8
(5) The power of the Pope is immediate — a quality
which naturally flows from spiritual sovereignty, but had
to be specified against the Febronians/ who, as stated
above, made the Pope the mere representative or diplo-
matic agent of the bishops. The supreme power accrues
to the Pope not by any concession from or deference on
the part of the bishops, but from Christ's promise and
actual bestowal.
(6) This power, lastly, is ordinary, because supreme,
full, and immediate jurisdiction is imparted through
and with the office of the successor of St. Peter and
rests with him as long as he holds that office, from the
moment he accepts the lawfully performed election until
his death or resignation. Neither for the validity of
the election nor for a resignation is acceptance, confirma-
tion, or anything else required. The reason is not far
to seek. The pontificate, being supreme and immediate,
requires merely an appropriate human factor or instru-
ment in order to exist. (Election is, we might say, the
remote material element, whilst the consent of the elect
is materia proxima, to which is added the divine form
of the primacy embodied in the Roman bishop.)
a V«t. Cone. icsa. IV, e. 3 (Den- which Pius VI promulgated the
zinger, n. 1673). Const. " Super ioliditate," Nov. 38,
T Eybel bad published a pamphlet: 1786 (Denziuger, n. 1363).
"Whit U the Pope?" against
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 221 2U
The question may be asked how the phrase "iure
divino" in can. 219 is to be understood. No Catholic
will doubt that the primacy is of divine sanction. But
why is it held by the bishop of the Roman See,
and not by the bishop of Antioch or the bishop of Alex-
andria (founded, it is said, by St. Mark, the "spiritual
son " of St. Peter) ? The majority of authors, theolog-
ical 8 as well as canonical, maintain that it was by " divine
ordinance," by the " providence of God," by a " supernal
interposition M that the Roman See was chosen to be the
instrument of Peter's Primacy. The proof from tradi-
tion and common conviction, therefore, is in favor of the
iure-divino connection of the Primacy with the Roman
See. Yet it must be said, with an author who has writ-
ten a monograph on the subject and acted as member of
the Codification Commission, that no de fide definition
has been issued on the subject.9 A purely academical
question ,0 is, whether a Pope could be deposed if he be-
came a heretic or schismatic. Nego suppositum.
Canon 220 mentions the causae maiores which are re-
served to the Roman Pontiff. Gratian's Decree and the
a
Decretals contain several texts which refer to the so-
called causae maiores. The text of Gratian, however,
is taken largely from apocryphal sources. In one place,
for instance, he says, that u all greater affairs must be
referred to the Holy See, divine grace thus command-
ing," and vindicates to the Apostolic Sec " ecclcsiasti-
carum summas querelas causarum" and the condemna-
tion of bishops.1* Besides, appeals to the Holy See are
more than once refered to. It is safe to say that, since
the synod of Sardica (343), appeals to the Apostolic
a
c
"'-":. Mazzella, >'e Religion* W 10 Aichner, /. c, | 35, a.
Eeclesia, 1892, p. 731 ff. XI C. 15, c. a.j, q. 1; c 6, 3. 3, q.
oMsgr. Hollweck, Der Apost.
Stuhl und Rom, 1895.
* I Inr»ClI*> Original from
,00cVC UNIVERSITY OF WISCONSIN
212 ECCLESIASTICAL PERSONS
See ia were frequent. The canons of this synod had a
peculiar fate, for in some versions they were simply
attached to the canons of Nicsea, and having no special
inscription or enumeration, were accepted as Nicene can-
ons. A Latin translation containing them was circulated
in Rome and Gaul, as the Codex Theatinus and others
prove, whilst the African Church used copies of the
Nicene Council without the canons of Sardica. When
Apiarius, a priest of Sicca in Africa, appealed to Pope
Zosimus, and the latter accepted the appeal by pointing
to the canons of the Nicene Council, the African bishops
remonstrated and denied that there were any such " Ni-
cene canons." Both the Pope and the African bishops
spoke the truth considering the state of their respective
versions. But the African bishops were wrong in deny-
ing that appeals to the Holy See are permissible. For
Julius I (337-352) had accepted the appeal of St. Atha-
nasius, and the Africans themselves had sent the decrees
of two of their councils to the Apostolic See.18 Besides,
it is a historical fact that questions continued to be
submitted to Rome, instances of appeals being those of
Himerius, Bishop of Tarragona, in 384, of Victricus,
Bishop of Rouen, in 403, and of Exuperius, Bishop of
Toulouse, in 404. The replies are embodied in the noble
epistle of Siricius and Innocent on ecclesiastical disci-
pline." Besides appeals there were other causes brought
before the Pope. Thus the restitution of deposed or
sentenced bishops, doubtful or contested episcopal elec-
12 Cc. 10, w, C. 2, q. a; c. 9, C. tnhsa sunt ad sedem epostolieam.
3. q. 6; c. 50, X, II. 28: as to the Inde etiam rcscrip'.a venerunt; causa
Sardican canons sec Hefele, Con- finita est, utinatn aliquando error
eiliengesckichte, I, 341 * : 539 «.; finiatur."
Maasacn, /. c, p. 9 f.; p. 56 S. *« Coustant, Epp. RR. Pontiff.,
i»Cf. S. Aug;., Serm. 132, n. 10: 1721; Duchesne, I.e., p. 37.
"Jam enim de causa duo concilia
dbyC jle
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 221 213
tions, the concession of coadjutors, etc Add to this the
convocation of general councils and the solution of
doubts concerning articles of faith or ritual questions,18
and especially, later, the beatification and canonization of
saints, the grant of exemptions, the erection of religious
orders and congregations, dispensation from and commu-
tation of certain vows, the erection and charge of higher
ecclesiastical benefices, etc.
An expression in the Gloss (ad. c. x, § I, 7) deserves
some attention.10 " No one," it says, "may appeal from
the decision of the Holy See to another authority." The
Gallicans had invented a formula, a certain panacea, as
they said, for protecting the clergy and bishops from
unjust sentences pronounced by Rome. This is the
famous appellatio ab abusu, an appeal from the spiritual
authority to the civil government. But that formula
was a mere political measure, devised to hinder the free
exercise of the spiritual power in matters proper to it.
It was properly dealt with by the condemnation of the
so-called Gallican Articles.17 But there were other er-
rors contained in the Gallican tendencies, which were
transplanted to Germany and Austria and other coun-
tries, even to the Republic of Switzerland. These are
known as the " place turn regium" and other outcroppings
of a truly autocratic system, which would submit to civil
power every official communication of the Supreme Pon-
tiff and of pastors with their flocks.18 Therefore, quite
o
15 Cfr. cc. xo, 12, C. 2, q. 6j unit, cxin.it atque probat."
c. 10, 6*, I, 6; c un. 6°, III, 5» 17 Innocent XI, April lit 1682;
c 1, X, II, 7; c 5, Dlst. 17; c 3, Alexander VIII, "Inter multi-
X, III, 43. pikes," Aug. 4, 1690; " Auctorem
16 The verse reads: " Restituit fidei," Aug. 28, 1794; " Apoitolicae
Papa solus, deponit et ipse — Arti- Sedis," 1869, n. 6-8; cfr. Charlas,
culos solvit; synod unique facit ge- Troctatus de Lii/ertotibHj Eccl.
neralem — Tranifert et mutat, op- Galliconat, 1725, III, U 166 ff.
piUot nulla s ab iajo— Dividit ac l» Syllabus n. 28; Heiner, D$t
a
>Ie
C* -. v J„ Original from
UNIVERSITY OF WISCONSIN
214 ECCLESIASTICAL PERSONS
naturally, our Code insists on the supreme spiritual power
being independent in its sphere of any human author-
ity. And, truly, if the divinely established government
were subject to temporal rulers, the mission of the
Church would be jeopardized and often foiled.
In order to complete the observations made thus far,
we will add some remarks on
THE PAPAL TITLES AND INSIGNIA
By the term " title " we understand not only the vari-
ous nomenclatures which distinguish the Pope, but also
the diverse dignities inherent in the papal office. To
commence with the latter, three of which have now be-
come merely honorary, mere are
i. Titles connoting preeminence: (a) Bishop of
Rome, i. e., of the diocese within a circumferenece of 40
miles of the City (with the exception of six suburbicarian
bishoprics), called in Italian " comarca di Roma/' over
which the Cardinal Vicar presides with ordinary juris-
diction.10
(b) Metropolitan of the Ronton Province, which at
the time of Innocent III comprised the region between
the two provinces of Capua and Pisa,fl0 and had some
significance as long as provincial councils were held in
Rome.
(c) Primate of Italy and the adjoining islands, Cor-
sica, Sardinia, and Sicily (including Malta).21
(d) Patriarch of the Occident, in imitation of the Ori-
ental patriarchates."
Of these four titles only the first has a juridical value.
Syllabus. 1894, p. ijx; Bachofen, 20 C 5, X, I, 33; v. Scherer, J. c,
Svmma Iuris Ecc. Pub., 1910, p. I, 4*3-
56 f.; p. 68. Jl C 11, Dfo 11.
IB Benedict XIV, Dt Syn. Dioec, S3 C. 23. X, V, 33-
II. 3. «.
>Ic
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 221 215
2. Honorary titles expressive of the office and dig-
nity of the Sovereign Pontiff are the following:
Papa from the Greek Tramras, i. e., father, which since
the fifth century is exclusively used for the pope in
the West;2*
Apostolicus, vis. Dominus, in use since the fifth cen-
tury, taken from the see, called Apostolic ; Pontifex Max-
itnus, Sumtnus.24
Vicarius Dei or Vicarius Chrisli, also Vicarius Petri, to
signify the primacy and source of power, in use since the
thirteenth century."
Servus Servorum Dei, which dates to the time of Greg-
ory the Great (590-604). Because the monks were
called u servants of God," Gregory, a former monk, called
himself "Servus Servorum Dei" against the " Universal
Patriarch " of Constantinople.26
With these titles arc in keeping the cermonies of the
papal court. There is, first, the adoratio or reverence
given to the Pope. At public cermonies the cardinals
are supposed to kiss his foot and hand, the bishops his
foot and knee, diplomatic representatives his hand.27
Formerly the emperors used to hold the strepa of the
Pope's horse. Now-a-days the Pope is considered the
first of sovereigns and in Catholic countries his envoys
take precedence over all other diplomatic agents.
The Pope is addressed as " Holy Father," in Latin,
Beatissime Pater, e.g., in petitions; Sanctitas Vestra,
Beatitudo Vestra, although beatitudo is also the address
of Oriental patriarchs.
IS Coustant. I. c. p. 765. 75. 87).
1* V. Scherer, I, 468. Pontifex 17 The etiquette is the totalled
Maxinius alludes to the pagan Sura- Spanish; but it is useless to assert
mua Pontifex and to the Jewish that this adoratio or worship is in
Pontiff or Highpriest. tended for tbe relics sewed in the
is Cc. 2, 4, X, I, 7; c. 17, 6°, I, 6. tip of the slippers.
isio. Diac. Vita Greg. (Migne
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
216
ECCLESIASTICAL PERSONS
N
■
3. The most remarkable insignia of the Sovereign
Pontiff are these :
At certain solemnities the Pope wears the tiara or tri-
regnum, a crown about 1% ft. high with three bands or
small diadems, set with precious stones, and with
two lappets hanging from the rear. In its present form
it dates back to the first half of the fourteenth century
(Benedict XII, d. 1342). No juridical significance can
be attached to the tiara.28 It is used at the coronation of
the Pope and high solemnities; at liturgical functions the
Pope wears the episcopal mitre.
Instead of the crooked pastoral staff of the bishops the
Pope uses the pedum rectum, a straight cross or staff,
at the point of which is a cross, to signify the plenitude
of power which the holder exercises in the name of
Christ crucified.1*
Besides, to indicate the fulness of his power, the Pope
wears the pallium at all functions and without any re-
strictions as to place. The usual or daily dress of the
Pope consists of a cassock of white silk, a white silken
skullcap, a pectoral cross, and slippers of red silk.80
-- Can-.. Encyet,, XIV, 717 f. or piteus, and the mitre on a baud
(Broun); Wuweher.BeccM, Ur. or «cnrf (taenia) used hy prie*t».
sprung d. papsll. Tiara u. d. bisekoft. 20 C. un. X, I, 15 fi 9; *'• Scherer,
Mitra, 1899, shows that the tiara I, 468 f.; Wernz, I. c. U. p. 684.
was modelled on the Phrygian cap to C, 4, X, I, 8; v. Scherer, /. c.
►ogle
Original from
UNIVERSITY OF WISCONSIN
■
CHAPTER II
general (ecumenical) councils
Can. 222
§ i. Dari nequit Oecumenicum Concilium quod a
Romano Pontificc non fucrit convocatum.
§ 2. Eiusdem Romani Pontificis est Oecumenico
Concilio per se vel per alios praeesse, res in eo tractan-
das ordinemque servandum constituere ac designare,
Concilium ipsura transfeire, suspendere, clissolvere,
eiusque decreta confirmarc.
No general council can be held except by convocation
of the Roman Pontiff, who presides over it either him-
self or by legates, prescribes and assigns the matters to be
treated, as well as the order to be followed, transfers,
suspends, and adjourns the council and ratifies its decrees.
Among the causae maiorcs reserved to the Roman Pon-
tiff was enumerated the convocation of general councils,
and hence this chapter is logically connected with the pre-
ceding. But there is also another reason why the Code
treats of general councils here. The Pope being the su-
preme head of the universal Church, and a general coun-
cil being a lawful gathering of prelates representing the
whole body with the consent of the supreme head, it is evi-
dent that such an assembly must be the foremost object
of the sovereign power. Besides, the bishops being the
successors of the Apostles, endowed with power to
rule the Church of God, can be called together author-
217
G I Originalfrom
OOglC UNIVERSITY 0FWI5C0NSIN
218 ECCLESIASTICAL PERSONS
itatively only by one who enjoys immediate jurisdiction
over them.
History testifies that the first four general councils were
convoked by civil rulers ; but even at these, as the respec-
tive acta prove, the Popes were legitimately represented
by legates.
As to the necessity of general councils, it is not abso-
lute, but only relative.1 For the power of the Pope is in-
trinsically neither enhanced by a general council nor
diminished by the absence thereof. But in order to dis-
cuss matters thoroughly, and to impress the faithful as
well as dissenters more effectively, to give a more wide-
spread influence and application to universal decrees, a
general council proves an effective means, especially in
times of distress and spiritual calamities.
in
Can. 223
§ i. Vocantur ad Concilium in eoque ius habent
stiffragii deliberativi :
i.° S. R. E. Cardinales, ctsi non Episcopi;
2.0 Patriarchae, Primates, Archiepiscopi, Episcopi
residcntialcs, etiam nondum consecrati;
3.0 Abbates vel Praelati nullius;
4.0 Abbas Primas, Abbates Superiores Congrega-
tionum monasticarum, ac supremi Moderatores reli-
gionum clericalium exemptarum, non autem aliarum
religionum, nisi aliud convocationis decretum ferat.
§ 2. Etiam Episcopi titulares, vocati ad Concilium,
suffragium obtinen* deliberativum, nisi aliud in con-
vocations express* cavcatur.
§ 3. Theologi ac sacrorum canonum periti, ad Con-
1 Bellarmine, Dt Coneiliis, I, 10; 189a, p. 809 ff.
Maxzella, Dt Rtligiont 1% Ecclesia,
>Ie
I , Original from
UNIVERSITY OF WISCONSIN
■
"-.
CANON 224 219
cilium forte invitati, suffragium non habent, nisi con-
sultivum.
Can. 224
§ 1. Si quis ex vocatis ad Concilium ad normam
can. 223, § 1, cidern, iusto impedimento detentus. inter-
esse non possit, mittat procuratorem et impedimentum
probet
§ 2. Procurator, si fuerit unus e Concilii Patribu9,
duplici suff ragio non gaudet ; si non fuerit, publicis tan-
tum scssionibus intercssc potest, sed sine suffragio ; ex-
plcto autem Concilio, huius acta subscribendi ius babe t.
If one of those called to the council is lawfully pre-
vented from attending, let him send a procurator and
prove the obstacle.
The procurator, although being perhaps a father of the
council, enjoys but one vote; if he is not a father of the
council he has no deliberative vote, but may be present at
the public sessions and sign the acts after the coun-
cil is finished.
I Can. 225
Nemini eorum qui Concilio interesse debent, licet
ante discedere, quam Concilium sit rite absolutum, nisi
a Concilii praeside cognita ac probata discessionis
causa et impetrata abeundi licentia.
• i
B
■
The fathers of a council are not allowed to leave until
it is duly concluded, unless the president of the council
grants leave after having duly considered and approved
the reasons for departure.
The first of these three canons speaks of those who are
called (vocantur) to attend a council. The term vocantur
is to be taken as indicating a matter of fact, not a law or
jle
% .J,., Original fro m
UNIVERSITY OF WISCONSIN
220 ECCLESIASTICAL PERSONS
rule. This is plain from the persons enumerated. For
cardinals, if not bishops, are called in virtue of their
privileged office, which the Vatican Council silendy ad-
mitted,2 as does also our Code.
Those who must be called are the bishops, be they
patriarchs, primates, archbishops, or simple bishops, pro-
vided they are residential, and not merely titular. The
reason why the residential bishops must be called lies in
their twofold character of pastors and teachers. This
double office they exercise in a twofold way: (i) As suc-
cessors of the Apostles they share in the government of
the universal Church and form a body analogous to the
college of the Aposdes, with whom Christ remains until
the end of time. (2) As residential bishops they exercise
their office in a determined district or diocese, which, how-
ever, is part and parcel of the universal Church.8 This
power is jurisdictional in a particular sense, while the
power they exercise over the whole Church is jurisdic-
tional in a general sense, so far, namely, as they convene
in council under their legitimate superior.
The next question would be, whether the right of a
bishop to be called to a general council depends on epis-
copal consecration or jurisdiction. The Vatican Council
doubtless took the view that it is a right emanating
directly from jurisdiction. This is implicitly also the
standpoint of our Code, otherwise a bishop confirmed by
Rome but not yet consecrated, could not be called. The
point is palpably illustrated by the debate concerning the
admission of titular bishops. After long deliberation the
commission of cardinals entrusted with the investigation
of the matter decided that such bishops are to be called,
as they are bound by the oath "vocatus ad synodutn
Q
2 Cfr. Granderath- Kirch, '',-- 83, 440.
sckichte det Vatik. Konrils, ijw3. I. B lb., p. 84 ff.
§le
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 225 221
venxam" The quaestio iuris the commission would not
touch.* Our Code says, § 2, " etiam episcopi titulares,
vocati ad concilium." The delicate question could, of
course, be solved only by answering two others : ( 1 ) Is the
tnagisteriutn an act of jurisdiction or of spiritual power
based on the power of orders? and (2) Is episcopal juris-
diction derived directly from God by virtue of consecra-
tion, or from the Pope ? The commission would not
solve the problem, as the time was too short. It only
took the historical point of view, by which it was safely
guided, thus making the council what it ought to be;
* concilium episcoporum est" as the Council of Chalcedon
says.6
But there is an unmistakable hint as to the viewpoint
which the Vatican Council as well as our Code take with
regard to the twofold question proposed above: the office
of teacher and pastor follows jurisdiction, not consecra-
tion, and this jurisdiction is supposed to be given by the
Supreme Pontiff. Hence abbots nttllius are called to the
council, although many of them are not consecrated; —
in the Cassinese Congregation they are not even blessed,
though some are real abbates nullius.* For these ab-
bots nullxus as well for other abbots mentioned S. San-
guineti, S. J., gave his votum.T He proved that since
the second Nicene Council (787) the monastic bodies
and their superiors took a conspicuous part in the af-
fairs of the Church, but their participation in councils
was a privilege, not a strict right, though abbots possess
a quasi-episcopal jurisdiction, which is the reason of
their being admitted to councils. But when he comes
4 L. e., p. 93. Paolo fuori le mura. Cava dV Tir-
B Sess. IV. rent
• Those of Monte Cassino, S. I Granderath-Kirch, t. c, p. 99.
jle
I % Original from
UNIVERSITY OF WISCONSIN
222 ECCLESIASTICAL PERSONS
to the point — punctum saliens — whether all abbots, or
only some of them, should be admitted, Fr. Sanguineti's
conclusions seem not to tally with his premises. For in
the Benedictine Order all abbots regiminis are endowed
with quasi-episcopal jurisdiction, and neither the Abbot
Primate nor the Abbot President possesses real juris-
diction over the individual abbots. Hence the distinction
between heads of monastic congregations and superiors
of single autonomous monasteries is merely extrinsic.
We fail to perceive the intrinsic reason of the distinction
made, upon the opinion of Sanguineti, by the commission
of cardinals in 1868 and now adopted by the Code.
One reason advanced at the meeting, why not all abbots
should be admitted, we understand, namely, that their
number would be so great as to displease the bishops.8
Transeat! The superiors of non-exempt congregations*
were not entitled to be present at general councils, which
exclusion was logically based upon the theory of quasi-
episcopal jurisdiction.
Concerning proxies, our Code embodies the practice of
the Vatican Council.10 If a procurator is at the same
time a " father " of the council, i. e.t entitled by law to
a deliberative vote, he enjoys only one vote, for the rea-
son that a bishop or pastor, being judge and counsellor
at the assembly, cannot impart his judgment or counsel
to another. Concerning bishops, the matter is still more
palpable, for, being chosen by the Holy Ghost, they can-
not communicate that personal gift to another." A proc-
urator who does not belong to the " fathers " of the
council enjoys no deliberative vote, unless, of course,
8/6., p. 104. 10 Grandcraih-Kirch, /. c, I. 108
0 Exempt congregations are the ff.
KcdemptoriaU and the Passionists. ti lb., p. 115; Benedict XIV, Dt
Syn. Diotc, 111, ti, 4.
jfe
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 226 223
the Pope expressly grants him one, as Paul III allowed 12
the procurators of some German bishops a decisive vote,
which privilege, however, was repealed by Pius IV.18
Besides, the office of a procurator is to explain and prove
the reasons why his mandans has not personally ap-
peared, although he was under obligation to attend.14
The investigation of such cases must be laid either before
a commission specially assigned by the council, or before
the presiding officer. The latter must also take cog-
nizance of and approve the reasons for a departure be-
fore the close of the council.
A last question may perhaps be of some juridical in-
terest, vis., how many fathers must be present in order
to call a council ecumenical? This question Bellarmine 16
has answered by saying that the number cannot be de-
fined but should be such as to constitute a moral repres-
entation of the whole Church. He adds that at least
some bishops should be present from the majority of
provinces. The councils of the East had but few
representatives from the Occident, whose small number
was supplied by the papal representatives.
order and authority of a general council
Can. 226
Propositis a Romano Pontifke quaestionibus Patres
possunt alias addere, a Concilii tamen praeside antea
probatas.
Can. 227
Concilii decreta vim definitivam obligandi non ha-
l»"Dudum cum fide," Dec. 5. D* Syn. Dioec, III, n, 5.
1545. iWv Concil., I, c. 17; Mazzella,
!■ Aug. 26, 1563. /. c, p. 801.
14 C. 4. X, II, 24; Benedict XIV,
>Ie
, ,1,., Original from
UNIVERSITY OF WISCONSIN
■
224 ECCLESIASTICAL PERSONS
bent, nisi a Romano Pontifice fuerint confirmata et eius
iussu promulgate
Can. 228
§ 1. Concilium Oecumenicum sup re ma pollet in uni-
versam Ecclesiam potestate.
§ 2. A sententia Romani Pont ificis non datur ad
Concilium Oecumenicum appcllatio.
To the questions proposed by the Roman Pontiff others
may be added by the Fathers, provided they are ap-
proved by the presiding officer.
Conciliary decrees have no obligatory force unless they
are ratified by the Roman Pontiff and promulgated by
his command.
An ecumenical council possesses supreme power over
the whole Church.
From the judgment of the Roman Pontiff no appeal is
admissible to a general council.
Can. 229
Si contingat Romanum Pontincem, durante Concilii
celebratione, e vita decedere, ipso iure hoc intermitti-
tur, donee novus Pontifex illud resumi et continuari
iusserit.
Should the Roman Pontiff die during the council, the
latter is suspended until the new Pontiff gives orders to
resume and continue it.
As to the matter and the order of proposals, it is well
known that preparatory sessions are held and various
committees chosen. No general rule is laid down, and
prelates who wish to make new proposals must submit
them to the President of the council, in order that they
may be sifted and discussed.
jle
£ * ^ ^ -J,-. Original fro rn
UNIVERSITY OF WISCONSIN
CANON 229 22s
Concerning the vis definitiva, it should be remembered
that the fathers of the council are judges concerning all
matters proposed to their acceptance or rejection.
Wherefore those who are mentioned in can. 233, § 1 and
§ 2 subscribe the acts with the phrase definietts subscripsi.
However, although these are regular judges, the final
sentence remains with the Pope. He it is that ratifies
the decrees either at the council itself, if he is personally
present, or when they are submitted to him, generally by
the secretary of the council. It may happen that some
decrees are ratified, while others are rejected, as, for in-
stance, the third cannon of the I Council of Constanti-
nople and the twenty-eighth of Chalcedon were rejected
by the Popes.16
As to the authority of a general council, it is evident
that, if it deserves the name, its dogmatic decrees bind
the whole Church, Oriental as well as Occidental. But
the disciplinary decrees of Occidental councils, unless
directly applied to the Oriental Church, are not intended
for the latter.17 But there is also another intent in can.
228, § 1, that is to reject the pretention of Hus,18 that
every council called general obliges the whole Church,
and especially to condemn the 29th thesis of Luther,19 that
it is allowed to reject or even rebel against the decrees
of an ecumenical council. The same canon rejects the
famous " conciliar theory," which, approved by Gerson,
was a leading topic of discussion at the end of the four-
teenth and the beginning of the fifteenth centuries, and
culminated in the assertion of the superiority of a general
council over the Pope, thus destroying the true idea of
Q
o
18 Also the conciliar decreet of 18 Art. 5 (Dermnger, Enchiridion,
the council of Basic (1431) were n. 551).
not aJl ratified by the pope. " Denzinger, I. c, n. 653-
it Can. 1 of our Code,
jle
Original fro ni
UNIVERSITY OF WISCONSIN
226 ECCLESIASTICAL PERSONS
the papacy.30 Hence no appeal is possible from the Pope
to an ecumenical council. To admit such an appeal
would, moreover, be tantamount to maintaining that a
council can appeal to itself, since a general council is
unthinkable without the supreme head. Wherefore Pope
Zosimus (418) justly wrote to Aurelius, bishop of Car-
thage, that the authority of the Apostolic See is so great
that no one can revise its sentences.21
c
Regarding the death of the Roman Pontiff during a
council, Pius X established that as soon as the notice
thereof should reach the council, wherever it be held, all
sessions and meetings and enactments of decrees or can-
ons should be immediately stopped, and nothing further
done until the new Pontiff ordered its resumption and
continuance. A council has no share in the election of
the Pontiff, this prerogative being reserved to the
Cardinals.22
MPiui II (who as Aeneas Sil- 21 Ep. 12 (Migne, ao, 676).
Tius inclined to the same theory) 22 " Vacantc Scde Apostolic*,'
" Execrabilis," Jan. 18, 1459; Cone, n. 38.
Vatic, Scs*. IV, C 3.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
CHAPTER III
THE CARDINALS OF THE HOLY ROMAN CHURCH
Pope Fabian (236-251) divided the (14) regions of
Augustus into seven ecclesiastical districts, over which
seven deacons should preside, who took care of the tem-
poral affairs of the Church, With the growth of the
number of the faithful the number of these diaconiae
also increased. In the seventh century we read of dia-
coniae monasterii, entrusted to monks, from among whom
the superior of each diaconia or charitable institute was
taken. Henceforth an indefinite number of regionary
deacons appear, and their office or charge is designated
according to the name of the church attached to each
diaconia. Thus in the pontificate of Hadrian I (772-
775) 18 such deacons are mentioned. In the eleventh
century the deacons presiding over these institutes were
called cardhiales diaconi} These formed a conspicuous
part of the Roman clergy and were often employed for
papal legacies and other important affairs.
At the time of the same Pope, Fabian, and most prob-
ably even earlier, there were in the city of Rome a num-
ber (at first 28, later 48 or 49) churches (more particu-
larly those built above the sepulchres of martyrs) which
were called tituli, after the saint whose relics were there
preserved, or for some other special reason {e.g., titulus
pastoris, St. Pudenziana). Furthermore there were four
1 Liber Pontificalix, ed. Duchesne, Regesta Pontif. Ron., 1906, I, 3 ff.
1880, I, 148, 519, 53a, 364; Kthr,
227
§le
/ * ^ ^ ,L» Original fro ni
UNIVERSITY OF WISCONSIN
ECCLESIASTICAL PERSONS
principal churches,9 which were considered baptismal
churches and penitential churches, and around which the
other churches or tituli with their clergy were grouped.
For as each church had its clergyman, especially assigned
to or incardinated into it, so the principal churches had
their special or incardinated clergy, who had to serve
there and nowhere else. Here we have the origin of the
name " cardinal " ; it means a clergyman incardinated in
a special church which enjoys a certain preeminence, and
since the Church of Rome was considered the principal
church among all the churches of the world, its clergy,
especially those incardinated in one of the ancient tituli,
took precedence over the rest in rank and dignity. To the
Roman clergy employed in these titular churches,
after the 16th century,8 were reserved the title and rank
of cardinals.
Add to these cardinal deacons and cardinal priests the
seven suburbicarian bishops, who since the time of Ste-
phen III (768-772) were summoned to perform the litur-
gical functions each week at the Lateran Basilica,4 and
you have the College of Cardinals.
The energetic John VIII (872-882) employed the car-
dinal clergy as counsellors, who had to meet at one or
the other diaconia or church at least once a month, and
twice a week at the papal palace in the Lateran.8 Still
more conspicuous and important grew the cardinal's office
after Nicolaus II (1059) and Alexander III (1179)
placed the papal election entirely into the hands of the
Q
2 Pope Simplicius (468-483) praesepe was added to the three.
"coDStituit ad S. Petruxn apostolum 3 There were "cardinals" also
et ad S. Paulum apostolum et ad S. at Cologne. Hlnschius, K.-R., If
Lauren tin m martyrem ebdoraadas ut 331 f.
presbyteri manerent propter pen!- 4 Mabfllon, Mustum Italicvm,
tentes et baptism um." Lib. Pont., 1724, II, 574.
I, 240; later on S. Maria ad a Kehr, /. c, I, 6, 1;. 8.
>Ie
j ^ Original fron-i
UNIVERSITY OF WISCONSIN
CANON 230 239
cardinals of the Roman Church.6 Under Innocent III
(1196-1229), after synods had come into disuse, the
Cardinals formed a permanent consistory of the Pope, and
were convoked two or three times a week, or as often as
affairs were urgent.
It was but natural that the precedence of Cardinals
over other prelates should gradually manifest itself. At
the Ilnd Council of Lyons (1174) they rank higher than
archbishops and bishops; in the 14th century they pre-
cede even the patriarchs. Two centuries later no prelate
outside the college of Roman Cardinals was allowed to
call himself cardinal. Finally, the Ccremoniale Cardi-
naliutn (May 4, 1706) vindicated to the cardinals the
title of Princes of the Holy Roman Church.7
The number of Cardinals differed at various times,
according to the number of titular churches. The Coun-
cil of Constance and Basle allowed only 24, but Sixtus V
established 70, in imitation of the 70 seniors of the old
Law, 14 deacons, 50 priests and six bishops.8
office and rank of cardinals
Can. 230
S. R. E. Cardinales Senatum Roman! Pontificis con-
stituunt eidemque in regenda Ecclesia praecipui con-
siliarii et adiutores assistunt.
-
D
The Cardinals form the senate of the Roman Pontiff
and are his main counsellors and helpers in the govern-
ment of the Church.
« C. 1, Diat. 33; c 6, X, I, 6; p. 462: Hinscfaius, I. c, 1, 319.
Galante, Ftmtit luris Ccnonici, a " Postquam," Dec. 3. 15W;
1906. p. 414 f. "Bcligiosa," April 13, 1587; Ga-
TBangto, Dit Rom. Curit, 1S64. lante, /. c, 467 if.
.;Ie
j ^ Original from
UNIVERSITY OF WISCONSIN
-
■
pi
230 ECCLESIASTICAL PERSONS
Can. 231
§ 1. Sacrum Collegium in trcs or dines distribuitur ;
episcopalem, ad quem soli pertinent sex Cardinales
dioecesibus suburbicariis praepositi ; presby teralem,
qui constat Cardinalibus quinquaginta ; diaconalem, qui
quatuordecim.
§ 2. Cardinalibus ordinis presbyteralis ac diacona-
lis suus cuique titulus aut diaconia in Urbe assignatur
a Romano Pontifice.
The Sacred College is divided into three orders : that
of bishops, to which class the six suburbicarian prelates
belong; that of priests, fifty in number; that of deacons,
fourteen in number.
Each of the cardinal priests and deacons has his own
title or diaconia assigned to him by the Roman Pontiff.
It is not necessary to enlarge upon the exalted office
of cardinals. They are, as Eugene IV said, " the hinges
upon which the government of the whole Church turns," °
or, as Sixtus V called them, the " two eyes of the Pon-
tiff." 10
The six suburbicarian bishoprics are : Porto S. Rufiiia,
Albano, Palestrina, Sabina, Frascati, and Velletri.11 The
cardinal priests' titles are fifty different churches, to
which, as said above, a certain number of clerics, among
them a presbyter, were assigned. The deacons' churches
were originally charitable institutions with oratories at-
tached to them.
The cardinals take solemn possession of their titles
after they have been announced in the public consistory.
They are, or were in former times, supposed to take raa-
»"Non mediocri," 1439, 1 4. 11 Pius X, " Edita a Nobis/'
10 " Postqaam," Dec. 3, 1586. May 5, 1914 (A. Af. S., VI, aiof.).
-
-
■-:
, ,|,, Original from
UNIVERSITY OF WISCONSIN
oogle
p
CANON 232 231
terial care of their churches, juxta posse,12 and enjoy a
certain jurisdiction over the titular clergy."
CREATION AND QUALIFICATIONS OF CARDINALS
Can. 232
§ 1. Cardinales libere a Romano Pontifice ex toto
terrarum orbe eliguntur, viri, saltern in ordine pres-
byteratus constituti, doctrina, pietate ac rerum agenda-
rum prudentia egregie praestantes.
§ 2. A cardinalatus dignitate arcentur:
z.° Illegitimi, etiamsi per subsequens matrirnonium
f ucrint leg it irnati ; itemque alii irreguiares vel a sacris
ordinibus impediti secundum canonicas sanctiones,
etsi cum ipsis auctoritate apostolica fuerit ad ordines
et dignitates etiam episcopalem dispensatum;
a.0 Qui prolem etiam ex legitimo matrimonio sus-
ceptam, vel nepotem ex ea habent;
3." Qui primo aut secundo gradu consanguinitatis
alicui Cardinali viventi coniuncti sunt.
Can. 233
§ 1. Cardinales creantur et publicantur a Romano
Pontifice in Consistorio sicque creati et publicati ob-
tinent ius ad electionem Romani Pontificis et pri-
vilegia de quibus in can. 239.
§ 2. Si tamen Romanus Pontifex creationem alicuius
in Consistorio annuntiaverit, eius nomine sibi in pec-
tore reservato, sic promotus nullis interim gaudet
12 The Liber Pontificalis records well known is the generosity of the
many donations made by popes to late Cardinal Rampolla to S, Cc-
their former titular churches, and cflia.
1a Cf. can. 340, I a.
<
-
oogle
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
-
■
pi
232 ECCLESIASTICAL PERSONS
Cardinalium iuribus aut privileges, sed, postquam a
Romano Pontiiice eius notnen publicatum fuerit,
iisdcm fruitur a publicatione, iure vcro praeceden-
tiae a reservatione in pectore.
Can. 234
Promotus absens a Curia debet in recipiendo bireto
rubro iurare se intra annum, nisi legitimo detineatur
impediments Summum Pontificem aditurum.
Can. 235
Nisi aliter in casibus particularibus fuerit a Sancta
Sede provisum, per promotionem ad sacram purpu-
ram non solum ipso facto vacant dignitates omnes,
ecclesiae, beneBcia quae promotus possideat, sed etiam
pensiones ecclesiasticae amittuntur.
The dignity or office of a cardinal is of merely human
or rather ecclesiastical institution,14 but from time inline-
morial was reserved exclusively to the Pope, although, as
said above, a cardinal clergy existed also elsewhere.15
Hence the admission of so-called " crown cardinals"
whom certain monarchs recommended to the Pope, was
really nothing else but connivance on the part of the
Holy See, and constituted no right in the strict sense of
the word. The question put to the Cardinals in the
secret consistory: " Placctne vobis," by which the Pope
^-» seems to ask the consent of the patres purpurati already
created, is a mere ceremony."
u A solid doubt or controversy be maintained; cfr. Wernx, I. c, II,
as to the ecclesiastical institution n. 624 (p. 706, ed. !•),
of the cardinalate, as Smith, Eft- is C. 17, 6*, I, 6.
ments. I, n. 488 insinuates, cannot 10 Wernz, /. c, n. 62S-
jle
£ * ^ , %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 23s 233
The qualifications required for the cardinalate are
partly stated by the Council of Trent,17 and partly in the
Constitution "Postquam" of Sixtus V, Dec. 3, 1585.
At present, in addition, the priesthood is absolutely re-
quired.
Excluded by law ( from which, however, the Pope may
grant a dispensation) are the following:
(a) Persons born of illegitimate wedlock, even though
they be legitimated by the subsequent marriage of their
parents, or rendered capable of holding ecclesiastical dig-
nities by Apostolic dispensation ; hence the parents must
have lived in lawful wedlock at the birth of the candidate.
(b) Those who are irregular, either defectu or delicto,
for the reception of sacred orders or for the exercise
thereof, although made capable by Apostolic dispensation.
(c) All persons who have legitimate or illegitimate
offspring, male or female, or grandsons or granddaugh-
ters;
(d) Brothers who are either of the same parents or
of one parent only : father's or mother's, brother's or sis-
ter's sons (cousins-german), paternal or maternal uncles,
and grandsons of either father's or mother's side cannot be
cardinals at the same time.1*
The mode of creating Cardinals is left to the Roman
Pontiff. However, as a rule, the Pope creates them
and publishes their names in a secret consistory,18 at
which only the Cardinals already created are de iure
present, and from this moment the new cardinals begin
to enjoy cardinalitial rights and privileges. In a sub-
1T Sees. 24, c 1 de ref. modiSed the Constitution of Eu-
11 " Poitqum," ft 17 f- icne IV, "In erainenti." Oct. a6.
19 Pius V, Jan. 26, 1571; Gregory 143 1.
XV, "Decet," March 12, 1622,
oogle
f^ -» v -J,-. Original fro ni
UNIVERSITY OF WISCONSIN
234 ECCLESIASTICAL PERSONS
sequent public consistory, to which, among others, the
diplomatic corps, dignitaries, clergy and laity are admit-
ted, they receive the red hat and take the oath of fidel-
ity to the Pope.
A special mode, which was first made use of by Mar-
tin V (1417-1431), is that of reserving a cardinal's name
in petto; i. e., the Pope, by an act of his will, creates a
cardinal, but for special reasons does not immediately
publish his name. The one thus made a cardinal "in
petto " must await publication before he can exercise
the rights and prerogatives of a cardinal ; but his prece-
dence dates from the time of the secret consistory when
the Pope announced the reservation. Thus Pius IX, on
March 18, 1875, created ?ivc cardinals "in petto." Had
he died before making their names known, the five pur-
purae would have died with him, had he not provided a
means of carrying out his will by testament. However,
this is an unsafe way, liable to cause dispute and con-
fusion, and it is better that the names of such reservati
be published before the Pope's demise.30
Persons promoted to the cardinalate while absent from
Rome, generally receive the red biretta by' a special
envoy, and upon receiving it must promise under oath
to visit Rome within a year.81
What canon 235 states is nothing else but the general
prohibition of a plurality of offices. However, concern-
ing the loss of dignities, it is evident that the episcopal
dignity is not forfeited, but rather exalted by the car-
dinalate. though as to churches it must be noticed that
a bishop promoted to the cardinalate only virtually, not
actually, loses his bishopric, insofar namely, as the pope
is entitled to keep him at his court if he deems fit. As
20 Cfr. S*nti-Leitner, /. c, I, 11 " Poitquam," 9 19.
31, n. »4 f.
>gle
Original from
UNIVERSITY OF WISCONSIN
Q
CANON 236 235
to benefices other than episcopal, they are lost ; hence also
commendae seem, at least de iure, now lost as well as
pensions.22
option
Can. 236
§ 1. Per optionem in Consistorio factam et a Summo
Pontificc approbatam, possunt, scrvata prioritatc ordi-
nis et promotionis, Cardinales ex ordine presbyterali
transire ad alium titulum et Cardinales ex ordine
diaconali ad aliam diaconiam et, si per integrum de-
cennium in ordine diaconali permanserint, etiam ad
ordinem presbyteralem.
§ 3. Cardinalis ex ordine diaconali, transiens per
optionem ad ordinem presbyteralem, locum obtinet
ante omnes illos Cardinales presbyteros, qui post ipsum
ad sacrac purpurae honorem assumpti sunt.
§ 3. Suburbicaria si vacet sedcs, Cardinales ex or-
dine presbyterali, qui momento vacationis praesentes
fuerint in Curia vel ab ea absentes ad tempus ob sibi
commissum negotium aliquod a Romano Pontifice,
optare earn possunt in Consistorio, servata prioritate
promotionis.
§ 4. Cardinales quibus una ex ecclesiis suburbica-
riis est assignata, aliam optare nequeunt; cum vero
Cardinalis gradum Decani attigerit, dioecesim 6uam
Ostiensi cumulat, quae proinde cum alia atque alia
dioecesi suburbicaria in persona Cardinalis Decani
semper coniungitur.
12 It is a fact, as Weraz (/. e.t wherefore to combine both, we must
II, n. 632) justly observes, that say that commendae possessed be-
commandae were so far retained, fore promotion are lost, but may
and can. 1398 itemi to confirm that be re*ohtained with the permission
view; but our canon is absolute, of the Pope after promotion.
jle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
236 ECCLESIASTICAL PERSONS
This canon deals with the right of option, i.e., the
right of a Cardinal to choose a higher rank, or another
church within the same rank of a better class or greater
renown by reason of antiquity or distinction and in-
come. This is especially the case in the suburbicarian
bishoprics. Velletri has for centuries been united with
Ostia, whose cardinal bishop always was and still is
dean of the Sacred College. Pope Pius X, the solicit-
ous pastor, rearranged the suburbicarian sees. He
assigned suffragans to all of them (Velletri and Sabina
had suffragans before) 2a with a salary of six thousand
Lire ($1150), besides other rights and prerogatives.
Four years later he separated Velletri from Ostia, which
latter is no longer a suburbicarian see, but always in
the hands of the Cardinal Dean. There being only six
suburbicarian sees and six cardinal bishops, it happens
that the Cardinal Dean is bishop of a real suburbicarian
bishopric and at the same time bishop of Ostia.24 The
reason for this change is obvious. The Pope wished to
remedy the frequent changes of the holders of these sees,
which could only be achieved by uniting Ostia25 with
one of the six other sees and denying the right to all of
the incumbents. Ostia having always been the privi-
leged see to which the rank of dean was attached, it was
natural that this see should not be suppressed, but made
an additional title to one of the other suburbicarian sees :
Porto S. Rufina, Albano, Palestrina, Sabina, Frascati,
Velletri. Thus now the rank of dean does not depend
on the see of Ostia, but solely on the time of promotion
to a suburbicarian bishopric We may add that the suf-
N
■
:-■
J8 " Apostolicac Romanorum," (A. Ap. S., VI, 219 ff.)>
April 15, igio (/4. Ap. S., II, 277 25 The diocese of Ostia Is in*
ft. . significant as to population.
t« " Edita a Nobis," May 5, 1014
ioi >gle
Y ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 237 237
fragans of these six sees have again been abolished and
the status quo restored.89
the sacred college as a corporation
Can. 237
-
§ z. Sacro Cardinalium Collegio praeest Decanus,
idest antiquior promotione ad aliquam sedem suburbi-
cariam, cui tamen nulla est in ceteros Cardinales iuris-
dictio, sed ipse primus habetur inter aequales,
§ 2. Vacante decanatu, ipso iure succedit Subde-
canus, sivc is tempore vacationis sit praesens in Curia,
sivc in sua suburbicaria dioecesi commoretur, sive ab-
sit ad tempus ob sibi commissum munus a Romano
Pontifice.
Since the time of Alexander III (1159-1181), when
the cardinal clergy of Rome obtained the exclusive power
of electing the Pope,87 the tendency to corporative union
among them asserted itself more and more. In course
of time they also increased their independence and im-
proved their material condition,28 so that their revenues
became far from insignificant. The temporal adminis-
tration was in the hands of a chamberlain (camerlengo)
elected by the body of cardinals, who, however, must not
be confounded with the camerlengo of the Holy Roman
Church. Their income was distributed twice a year
among the cardinals de curia, including the papal legates.
This distribution was called rotulus cardinalitius.™ Our
88 Benedict XV. ■ Exactia," Feb. 29 Benedict XIV, " In regimine,"
x, 1915 {A. Ap. S., VII, 229 ff.)j Feb. 3, 1745, complains of cardinals,
toe other enactments are left un- who are not dt curia, coming: to
touched in the Code. Rome twice a year simply to re-
2T C. 6, X, I, 6 de electione. ceive the rotulus; cfr. Bened. X ill.
28 Ci. SagmaUer, TSttgkeit u. " Romani Pontificis," Sept 7, *7*4l
Sttltung dtr Kardin&tt, 1896, p. Clement XII, "Pastorale officium"
170 ff. Jan. 10, 1731.
i 1"* .,,,.1,, Originalfrorn
oogle
UNIVERSITY OF WI5CON5I
238 ECCLESIASTICAL PERSONS
Code is silent about the catntrrarius, whilst the dean and
subdean are mentioned. It is a fact that the significance
of the College as such, as well as the rotulus, have lost
much of their former importance.
DUTIES AND PBIVXLEGES OF CARDINALS
Can. 238
§ 1. Cardinales tenentur obligations residendi in
Curia, nee fas est ipsis ab eadern discedere sine licen-
tia Romani Pontificis, salvo praescripto §§ a, 3 huius
canonis.
§ 2. Haec obligatio urget quoque Cardinales Epi-
scopos suburbicarios; sed ipsi non indigent licentia ut
sese conferant ad dioeceses sibi commissas, quoties op-
portunum iudicaverint.
§ 3. Cardinales qui sunt Episcopi alicuius dioecesis
non suburbicariae, lege residendi in Curia exirnuntur ;
sed cum ad Urbem venerint, Summum Pontificem
adeant, nee ab Urbe discedant antequam ab eodem
abeundi licentiam impetraverint.
The duty of residence follows from the nature of the
cardinalitial office, the Cardinals being counsellors and
assistants to the Sovereign Pontiff.80 Although the sub-
urbicarian cardinal bishops are bound by the law of re-
siding in Rome, yet the Pope always grants them tacit,
and now through the Code express permission to visit
their dioceses, thus interpreting, not abolishing, the divine
law of residence.81
What we said above concerning the loss of a bishopric,
which naturally follows one's elevation to the cardinalate,
is here corroborated. It is an implied dispensation from
80 C. 17, 6°, I, 6. vereae," Sept. 3, 1746; Da Syn,
81 Benedict XIV, "Ad uni- Dioec, VII, 1. 7.
Go >gle
Original fro ni
UNIVERSITY OF WISCONSIN
Q
CANON 239 239
the law prohibiting a plurality of offices. Diocesan resi-
dence is here preferred to residence in curie.
Can. 239
1. Praeter alia privilegia quae in hoc Co dice suis in
titulis enumerantur, Cardinales omnes a sua promo-
tione in Consistorio facultate gaudent:
z.° Audiendi ubique t err arum confessiones ctiam
rcligiosorum utriusque sexus ct absolvendi ab omni-
bus peccatis et censuris ctiam reservatis, exceptis tan-
tum censuris Sedi Apostolicae specialissimo modo
reservatis et iliis quae adnexae sunt revelation! secreti
S. Officii;82
2.0 Sibi suisque familiaribus 88 eligendi sacerdotem
confessionibus excipiendis, qui, si iurisdictione careat,
earn ipso iure obtinet, etiam quod spectat ad peccata
et censuras, reservatas quoque, illis tantum censuris
exceptis, de quibus in n. x ;
3.0 Verbum Dei ubique praedicandi;
4.0 Celebrandi vel alii permittendi ut coram se ct-
lebret unam Missam in fcria V maioris hebdomadae
ac tres Missas in nocte Nativitatis Domini;
5.0 Benedicendi ubique, solo crucis signo, cum om-
nibus indulgentiis a Sancta Sede concedi solitis,
rosaria, aliasque coronas 3* precatorias, cruces, numi-
smata, statuas, scapularia a Sede Apostolica probata
eaque imponendi sine onere inscription is;
as This oath is imposed on the etuel, II, -0. n. 122.
employees of the Holy Office and &+ Other corontt or rosaries are
the S. C. Consistorialis; cfr. A. Ap. those of St. R rigid, of the Seven
5"., I, 82. Sorrows of the B. V. Mary, and
83 Familiares are those who ha- of the Immaculate Conception, the
bitually serve cardinals or bishops corona Domini; cfr. Putaer, Com-
as domestics and depend on them m*nt. in Facult. Apost., 1807, p.
for their livelihood; cfr. Reiffen- J 5 5.
§le
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-'
N
■
240 ECCLESIASTICAL PERSONS
6.° Sub unica benedictione erigendi, in ecclesiis et
oratoriis etiam privatis aliisque piis locis, stationcs
Viae Cruris cum omnibus indulgentiis, quae huius-
modi pium exercitium peragentibus impertitae sunt;
nee non benedicendi pro fidclibus, qui causa infirm i-
tatis vel alius legitimi impedimenti sacras stationes
Viae Crucis visitare nequeant, Crucifixi icones 8D cum
applicatione omnium indulgentiarum devoto exercitio
eiusdem Viae Crucis a Romanis Pontificibus adne-
xarum;
7-° Celebrandi super a ram portatilem non solum in
domo propriae habitationis, sed ubicunque degunt; et
permittendi ut alia Missa, ipsis adstantibus, celebre-
tur;
8.° Celebrandi in mari, debitis cautelis adhibitis ; **
g.° In omnibus ecclesiis et oratoriis Missam cele-
brandi proprio calendario conformem;
io.° Fruendi altari privilegiato personali quoti-
diano;
ii.° Lucrandi in propriis sacellis indulgentias, ad
quas acquirendas praescripta sit visitatio templi
alicuius vel publicae aediculae civitatis seu loci, in
quo Cardinales actu commorentur, quo privilegio
etiam corum fam ilia res frui possunt;
12.0 Benedicendi ubique populo more Episcoporum;
sed in Urbe in ecclesiis tantum, piis locis et fidelium
consessibus ;
13. ° More Episcoporum gestandi crucem ante
pectus etiam supra mozetam atque utendi mitra et
baculo pastoral!;
14.0 Sacrum celebrandi in quolibet privato sacello
88 Cf . Putter, I. c, p. 366 f. ditiom arc mentioned in the Com-
t* Cfr. can. 349, where the con- mcatvy.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 239 241
sine praciudicio illius qui indulto gaudet;"
15. u Pontificalia cum throno et baldachino pera-
gendi in omnibus ccclcsiis extra Urbem, Ordinario
praemonito, si ecclesia sit cathedral is ;
16.0 Honoribus locorum Ordinariis tribui solitis
fruendi quocunque se conferant;
17.0 Fidem faciendi in foro externo, de oraculo pon-
tificio tcstantes ; *•
18. ° Fruendi sacello ab Ordinaiii visitatione ex-
empto ;
19. "' De reditibus beneflciariis libere disponendi
etiam per testamentum, salvo praescripto can. 1298;
20.0 Consecrationes et benedictiones ecclesiarum,
altarium, sacrae suppellectilis, Abbatum aliasve si-
miles, excepta oleorum sacrorum consecrations si
Cardinalis charactere episcopali careat, ubique loco-
rum, servatis servandis, peragendi, firmo praescripto
can. 1 157;
21.0 Praecedendi omnibus Praelatis etiam Patri-
archis, immo ipsis Legatis Pontinciis, nisi Legatus sit
Cardinalis in proprio territorio residens; Cardinalis
autem Legatus a latere praecedit extra Urbem omni-
bus aliis;
2a.0 Conferendi primam tonsuram et ordines mi-
nores, dummodo promovendus habeat dimissorias
proprii Ordinarii litteras;
23. ' Ministrandi sacramentum confirmationis, firmo
onere inscriptionis nominis confirmati ad normam
iuris;"
24.0 Concedendi indulgentias ducentorum dierurn,
Q
S7 Hence the chaplain may say orally by the pope, but testified to
another Mass, at which those en- by a cardinal, may be vindicated
dowed with the indult may assistt also in foro externo.
as well as at that o£ the Cardinal. SB Cfr. can. 798 f.
a
SI Cfr. can. 79; a privilege given
^
k ,| , Original from
UNIVERSITY OF WISCONSIN
242
ECCLESIASTICAL PERSONS
■
ctiam toties quoties lucrandas, in locis vcl institutis
ac pro personis suae iurisdictionis vel protcctionis ;
item in aliis locis, sed a praesentibus solummodo,
singulis vicibus, lucrandas.40
§ 2. Cardinalis Decanus gaudet privilegio ordinandi
et consecrandi electum Pontificem, si hie ordinatione
vel episcopali consecratione indigeat, et tunc pallio
utitur; quod privilegium, absente Cardinali Decano,
competit Subdecano, eoque etiam absente, antiquiori
Cardinali Episcopo suburbicario.
§ 3. Demum Cardinalis Proto-diaconus pallia Archi-
episcopis et Episcopis privilegio fruentibus eorumve
procuratoribus, vice Romani Pontificis, imponit; et
nomen novi electi Pontificis populo annuntiat"
To this specific, though not quite exhaustive,42 enu-
meration of privileges we add the insignia of cardinals:
(1) The red hat granted by Innocent IV (1245) to
cardinals of the secular and by Gregory XIV (1591) also
to those of the regular clergy;
(2) The red biretta, in use probably since Paul II
(1464) ;
(3) The red mantle or sacred purple, in use since
Boniface VIII. The Cardinals of the regular (ex-
empt) clergy, with the exception of the Society of
Jesus/8 retain in their dress the color of their order.
40 This would mean that those
present in the places subject to the
jurisdiction of the Cardinal could
gain the indulgence as often as the
Cardinal would grant it, even sev-
eral times in one day, nay that the
indulgence would, as it were, be
attached to the place itself; whilst
outside the institutes of (heir pro-
tection or jurisdiction, this indul-
gence could be gained only once a
day by those personally present.
41 The announcement is made by
the cardinal deacon from the bal-
cony of St. Peter's, which ii di-
rected towards the piazxa.
42 Other privileges are mentioned
in can. 2327, 2341-44.
«a The former cardinal Vaszary
of Hangary, O.S.B., had the priv-
ilege of wearing the purple dress.
jte
Original from
UNIVERSITY OF WISCONSIN
■
CANON 240 243
In the seasons of Advent and Lent the crimson gives
way to violet.
(4) The title "Eminence/1 or eminentissime princeps,
was so strongly insisted on by Urban VII, that a refusal
to acknowledge it was held sufficient to cause a break
of diplomatic relations.44
RIGHTS OF CARDINALS IN THEIR TITLES AND SEDE
VACANTE
Can. 240
§ 1. Cardinalis ad sedem suburhicariam promotus
et in eiusdem possessionem canonice immissus est ve-
rus Episcopus suae dioecesis, eaque potestate in earn
pollet, quam Episcopi residentiales in propria dioecesi
obtinent.
§ 2. Ceteri Cardinales in suis titulis vel diaconiis,
postquam eorundem canonicam possessionem ceperint,
omnia possunt quae locorum Ordinarii in suis ecclesiis,
exceptis ordine iudiciorum ct qualibet iurisdictione in
fideles, sed salva potestate in iis quae ad disciplinary
morum correctionem, servitium ecclesiae pertinent.
§ 3. Cum throno et baldachino Cardinalis ordinis
presbyteralis potest in suo titulo pontificalia peragere
et Cardinalis ordinis diaconalis in sua diaconia ponti-
ficaliter assistere, et nemo alius ibidem id potest sine
Cardinalis assensu; in aliis vero Urbis ecclesiis Cardi-
nales throno et baldachino uti nequeunt sine licentia
Romani PontiBcis.
The obligations and privileges attached to the suburbi-
carian sees, whose incumbents are bishops or ordinaries
a
44 Decree of June 10, 1630.
* -x, \i-\i » Originalfrom
Gi Original trorn
00^vK UNIVERSITY OF WISCONSIN
344 ECCLESIASTICAL PERSONS
in the true sense of the word, have been defined by Paul
IV and lately by Pius X.w
As to § 2 it should be remembered that Cardinals for-
merly" enjoyed a quasi-episcopal jurisdiction in their
respective titles. This, however, was limited by Innocent
XII in his Constitution "Romanics Pontifex" of Sept. 17,
1692, to what now remains : a domestic or paternal power,
which consists in admonition and the infliction of pen-
alties that require no trial, and in the proper maintenance
of the divine service.
Regarding the right of pontificals note that even the
Cardinal Vicar of Rome, if he wishes to pontificate in
one of the titular churches, needs the consent of the Car-
dinal to whom the title belongs, as was solemnly decided
by Leo XIII in the case of the Basilica Eudoxiana (S.
Pietroin Vincoli)."
c
Can. 241
Sede Apostolica vacante, Sacrum Cardinalium Col-
legium et Romana Curia non aliam habent potestatexn,
quam quae definitur in const. Pii X Vacante Sede Apo-
stolica, 25 Dec. 1904.
The powers which the Sacred College of Cardinals and
the Roman tribunals enjoy during the vacancy of the
Apostolic See are defined by Pius X in the Constitution
" Vacante Sede Apostolica," Dec. 25, 1904, which deter-
mines that
(1) All the powers which require the express approval
■
45 "Cum vencrabilia," Aug. 22, ligiota," April 13, 1589; Fagnlni,
■555: Pius X, "Apostolicae in c. cit. 11, n. 19 ft.
Romanoruni," April 15, 1909 (A. 47 Jan. 30, 1879; S. Rit. C, Sept.
Ap. S., II, 277 ff. 15, 1668; Dec 1903; Santi-Leilner,
« C 11, X, I, 33; Sixtui V, " Re- I. A, I, 31, n. 34 ff.
>Ic
k .J,., Original from
UNIVERSITY OF WISCONSIN
CANON 241 245
of the Pope, 1. e.f such as cannot be exercised except
verbo facto cum Siho" or £-*• audientia SSmi." or
vigors spccialium et extraordinariarum facultatum/*
are suspended ;
(2) That the ordinary faculties remain, but should not
be made use of except in cases of minor importance, or
in more important cases which suffer no delay; and in
the latter the matter should be entrusted to the Car-
i
dinal Prefect and some Cardinals of that Congregation
which would probably decide, but their decision should
be only provisional, until a new Pontiff is elected.4*
41 Contt at., nn. 22-35.
oogle
i*~^ ^ v ,|,, Original from
UNIVERSITY OF WISCONSIN
CHAPTER IV
THE ROMAN COURT
c
S
It is evident that the Sovereign Pontiff is unable to
provide personally for all the needs of the universal
Church. His coadjutors are the bishops and members
of what is known as the Papal Court, — Curia Romana,
from the habitual residence of the Pope.
The name curia is derived either from the Latin cura
(care) or quirts (Roman citizen), and signifies either the
temple around which the curiae romanae gathered, or the
place where the senate assembled to look after the public
welfare, as Varro insinuates.1
The term Curia Romana has a threefold meaning: (a)
in the strict sense it comprises the Sacred Congregations,
tribunals, and offices to which the business of the whole
a. '
Church is entrusted ; (b) in a wider sense it embraces not
only the three above-mentioned dicasteria but also the so-
called familia pontiUcia, which consists of the servants
and coadjutors of the Papal Court as well as honorary
prelates and knights, (c) In the strictest sense it com-
prises only the so-called curiales or minor officials — law-
yers, notaries, procurators, speditori, agents,2 etc. In
what sense the term is used, must be determined in each
instance from the context.
i Cfr. Forcellini, Lexicon, m. v, Kuric, 1896. p. 4 (English, New
** Curia." York 1907). Lega, in Annal. E -■■ /.,
1 Bangen, Dig Romischa C*ri», 1896, t. 4, p. 46; A. Ap. S., I, 8.
i854* P 7; Hilling, Dis Rom.
246
I Original from
1 K H 'gie UNIVERSITY OF WISCONSIN
CANON 242 247
Historically the Curia Romana developed pari passu
with the Papal State and power. The term " curia " was
almost unknown up to the 12th century,3 when it occurs
in the so-called Ordo Romanus X. But the rapid growth
of the papacy during the three subsequent centuries
created tribunals of far-reaching influence, especially the
Chancery, the Dataria, and the Rota Romana, the Secre-
tary Nepos who was later merged with the Secretary of
State, and a host of minor offices {ofUcia vacabUia).
Still it was only after the Council of Trent (1545-1563)
that the Curia Romana in its present-day sense was com-
pleted. Pius IV and his successors, especially Sixtus V
(1585-1590), created the Roman Congregations, upon
which devolved the burden of supervising the ordinary
affairs of the universal Church. The policy established
under Julius II (1503-1513) drew the various civil gov-
ernments, now awakening to national consciousness, into
diplomatic relations with the Papal Court.4 All this en-
hanced the splendor of the papacy, and at the same time
increased the legislative and administrative activities of
the Curia. Hence it is not surprising that the Cardinals
began to assert their importance at the court and in the
special congregations and tribunals.
Of these we shall now treat, as reorganized by Pope
Pius X .•
Can. 242
-
a
Curia Romana constat Sacris Congregationibus,
Tribunalibus et Ofnciis, prout inferius enumerantur
et describuntur.
s
■
• "Exit demnus papa de palatio 4 Sixtui V, " Immenia," Jan. 22,
cum epiacopis ct cardinalibua, et 1587.
cum toto apparatu curiae." Mabil- 5 *■ Sapient! coniQio," June *9.
Ion, Museum Itolicttm, 1724, II, p. 1908.
97; Migne, P. L„ 78, 1009.
jle
f~* ^ , .J,., Original fro ni
UNIVERSITY OF WISCONSIN
■
248 ECCLESIASTICAL PERSONS
Can. 243
§ 1. In singulis Congregationibus, Tribunalibus,
Officiis servanda est disciplina et tractanda sunt ne-
gotia secundum normas turn generates turn particu-
lars, quas ipsis Romanus Pontifex praestituerit.
§ 2. Omnes qui ad Congregationes, Tribunalia,
Officia Romanae Curiae pertinent, ad sec return ser-
vandum tenentur intra fines et secundum modum ex
disciplina unicuique propria determinatum.
Can. 244
§ 1. Nihil grave aut extra orclinarium in iisdem Con-
gregationibus, Tribunalibus, Officiis agatur, nisi a
Moderatoribus eorundem Romano Pontifici fuerit
ante Bignificatum.
§ 2. Gratiae quaevis ac resolutiones indigent pon-
tificia approbations exceptis iis pro quibus eorundem
Officiomm, Tribunalium, Congregationum Modera-
toribus speciales facilitates tributae sint, exceptisque
sententiis Tribunals Sacrae Romanae Rotae et Si-
gnaturae Apostolicae.
Can. 245
Controversiam, si qua exoriatur. de competentia
inter Sacras Congregationes, Tribunalia vel Offtcia
Romanae Curiae, dirimit coetus S. R. E. Cardinalium,
quos Romanus Pontifex singulis vicibus designaverit
The Code adopts the general arrangement made by
Pius X in his Constitution " Saplenti coftsilio," June 29,
1908, which was followed by the " Ordo Servandus in
Romana Curia." • The duty of secrecy is severest for the
►ogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 245 249
members of the " Holy Office," who are bound to it under
penalty of excommunication most especially reserved to
the Holy See.T
The so-called routine or system observed at the Curia
we need not set forth here. But it may not be amiss
to cite chapter X of the H Ordo," a which ordains that
any Catholic may have recourse to the offices of the
Curia, either personally or by means of an agent chosen
from among those approved by the Curia.
Ordinaries may treat with the Curia either personally
or by mail. If an Ordinary wishes to negotiate without a
lawyer, he must direct his petition to the respective Con-
gregation, Tribunal or Office, where note is taken thereof
with the accompanying words : personalis pro ordinario.
But if he wishes to employ the services of an agent or
lawyer, he is obliged to take one of those approved by
the Curia.
As to the agents of the bishops, the same " Ordo " pre-
scribes that they must be Catholics of good reputation and
know Latin and Canon Law. If the agent is a priest, or
at least in sacred orders, he must have permission from
the Cardinal Vicar to reside in Rome. One who wishes
to be approved as an agent must submit a petition to the
assessor of the S. C. Consistorialis. If admitted, his
name is placed upon the list of official agents.' There are
many experienced agents in Rome from among whom
the Ordinaries may choose.
Can. 245 is an entirely new enactment. Formerly the
Signatura Apostolica had power to settle all controversies
about competency, which were quite frequent when the
" Sapienti consilio " first went into effect.
T A. Ap. S., I, p. 8a f. • lb., p. 49 f.
•«.. P. 53 U
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
25o ECCLESIASTICAL PERSONS
;-■
ART. I
THE SACRED CONGREGATIONS
Sixtus V instituted fifteen congregations;10 but in
course of time some were overburdened, while others lost
their importance. This led Pius X to issue a Constitu-
tion which treats minutely of the reorganization of the
Roman Court11 (Curia in the strict sense). This order
was to remain in force, and, despite the difficulties arising
from the competency of various Congregations, has re-
mained in force with only one exception, made by the
present pontiff, Benedict XV, in his allocution of March
22nd, 1917, when the Congr. of the Index was suppressed,
or rather combined with the Holy Office, whilst the de-
partment of Indulgences, formerly attached to the Holy
Office, was joined to the S. Poenitentiaria.12 Besides
this, Benedict XV has given a fuller title to the S. C. of
Studies.
Can. 246
Singulis Congregationibus praeest Cardinalis Prae-
fectus vel, si eisdem praesit ipsemet Romanus Ponti-
fex, eas dirigit Cardinalis Secretarius; quibus ad-
iunguntur Cardinales quos Pontifex eis adscribendos
ccnsuent, cum aliis necessariis administris.
a
THE HOLY OFFICE
a
This Congregation developed from the Inquisition.
Its first traces are discernible in the canons issued by
Lucius III, a. d. 1 184, against the Waldenses and Albi-
genses. The civil authority (Frederick II and Louis IX)
10 M Immwia." Jan. n, 1587- It " AmpliMimum collegium '* (A.
11 " Sapieoti coiuilio," Juno 29, Ap. S., IX, 161 ff.).
1908 (A. Ap. S., I, 7ff.)
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 247 251
lent their assistance to the Church in combatting these
heretics, and the Dominicans were chiefly entrusted with
the unpleasant task of prosecution and procedure. Pope
Paul III established the " Supreme Universal Inquisition "
(1542) and Sixtus V added it to the Roman Congrega-
tions. Paul IV (1559) and Pius IV (1564) added the
Index Commission to the Holy Office."
Can. 247
§ 1. Congregatio S. Officii, cui ipse Summus Pon-
tifcx praeest, tutatur doctrinam fidei et morum.
§ 2. Iudicat de iis delictis quae sibimet secundum
propnam eiusdem legem reservantur, cum potestate
has criminales causas videndi non solum in gradu ap-
pellations a tribunali Ordinarii loci, sed etiam in
prima instantia, si directe ad ipsam delatae f uerint.
§ 3. Ipsa sola cognoscit ea quae, sive directe sive
indirecte, in lure aut in facto, circa privilegium, uti
aiunt, Paulinum et matrimonii impedimenta dispari-
tatis cultus et mixtae religionis versantur ; itemque ad
earn spectat facultas dispensandi in hisce impedimentis.
Quare quaelibet huiusmodi quaestio ad hanc Congre-
gationem est deferenda, quae tamen potest, si ita
censeat et casus ferat, quaestionem remittere ad aliam
Congregationem vel ad Tribunal Sacrae Romanae
Rotae.
§ 4. Ad eandem pertinet non solum delatos sibi 1 i-
bros diligenter excutere, eos, si oportuerit, prohibere,
et dispensationes concedere ; sed etiam ex officio inqui-
rere, qua opportuniore licebit via, quae in vulgus edan-
tur scripta cuiuslibet generis damnanda, et in memo-
is Cf. Hilling, Procedurt of the Index as a special congregation ; now
Roman Court. 1907, p. 54 fl Piua it is again attached to the Holy
V and Sixlus V had established the Office.
adbyC jle
J ., Original from
UNIVERSITY OF WISCONSIN
252 ECCLESIASTICAL PERSONS
nam Ordinariorum reducere, quam religiose teneantur
in perniciosa scripta animadvertere eaque Sanctae Sedi
denuntiare, ad normara can. 1307.
§ s. Ipsa una competens est circa ea omnia quae
ieiunium eucharisticum pro sacerdotibus Missam cele-
brantibus rcspiciunt.
T
The Holy Office, therefore, is competent in matters
of faith and morals, and whatever touches the so-called
privilegium Paulinum and the impediments of duparitas
cultus and mixtae religionis; from which impediments it
has the power to dispense. All such matters must be re-
ferred to that Congregation, which, however, may, if it
thinks it opportune and the case permits, refer the ques-
tion to another Congregation or to the tribunal of the
S. R. Rota.
The Holy Office also acts as judge or censor of books,
either allowing them to be published or condemning them,
and this Congregation alone is competent to decide ques-
tions regarding the Eucharistic fast of priests celebrating
Mass.
THE CONSIST0RIAL CONGREGATION
As its name implies, this Congregation was instituted
for the purpose of preparing the matter to be discussed
and decided in consistory or meeting of the Cardinals
with the Sovereign Pontiff. The subjects chiefly treated
in these meetings were the erection of higher benefices
and the provision of consistorial benefices. The present
importance of this Congregation is due to the reorganiza-
tion of the Curia by Pius X.
Can. 248
§ 1. Congregations Consistorialis Praefectus est
oogle
{"* ^ v i\s± Original fro ni
UNIVERSITY OF WISCONSIN
CANON 248 253
ipse Romanus Pontifex. Practer alios ad eandem per-
tinent ex officio Cardinales Secretarius S. Officii, Prae-
fectus Congregations de Seminariis et Universitatibus
studiorum et Secretarius Status. Inter Consultores
eiusdem semper sunt Assessor S. Officii, Secretarius
Congregationis pro negotiis ecclesiasticis extraordina-
riis et Secretarius Congregationis de Seminariis et
Universitatibus studiorum.
§ 2. Ad hanc Congregationem spectat non modo pa-
rare agenda in Consistoriis, sed praeterea, in locis
Congregationi de Prop. Fide non obnoxiis, novas dioe-
ceses ac provincias et capitula turn cathedralia turn
collegialia constituere ; dioeceses iam constitutes divi-
dere; Episcopos, Administratores Apostolicos, Coadiu-
tores et Auxiliares Episcoporurn constituendos pro-
ponere, canonicas inquisitiones seu processus super
prornovendis indicere actosque diligcnter expendere,
ipsorum periclitari doctrinam, salvo praescripto can.
355-
§ 3. Ab hac Congregatione dependent ea omnia quae
pertinent ad constitutionem, conservationem et statum
dioecesium. Quare ipsa vigilat super impletis vel
minus obligationibus, quibus Ordinarii tenentur; co-
gnoscit ea quae ab Episcopis scripto relata sint de statu
suarum dioecesium ; indicit visitationes apostolicas
exarninatque eas quae fuerint absolutae, transmissis in
utroque casu ad singulas Congregationes iis ad delibe-
randum negotiis quae ad eas peculiariter pertinent.
On the Consistorial Congregation at present devolves
not only the preparation of matter for the consistories,
but also, in places not subject to the S. C. Prop. Fide, the
erection of new dioceses, provinces, cathedral and collegi-
ate chapters; the division of dioceses; the proposal of
"N.
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
254 ECCLESIASTICAL PERSONS
bishops, Apostolic administrators, episcopal coadjutors
and auxiliaries, and the so-called processus informativus.
To this congregation also belongs whatever pertains to
the constitution, preservation, and state of the various
dioceses. It sees to it that the obligations of the Ordi-
naries are complied with ; takes cogni2ance of the written
report of the dioceses by the bishops, etc.
the congregation op the sacraments
Can. 249
§ i. Congregationi dc disciplina Sacrarnentorum pro-
posita est universa legislatio circa disciplinam septem
Sacrarnentorum, incolumi iure Congregations S. Of-
ficii circa ea quae in can. 247 statuta sunt, et Sacro-
rum Rituum Congregationis circa ritus ct caeremonias
quae in Sacramentis confkiendis, ministrandis et reci-
piendis servari debent.
§ a. Ad illam itaque spectant ea omnia, quae de-
cern! concedique solent turn in disciplina matrimonii,
turn in disciplina aliorum Sacrarnentorum nee non in
celebratione Sacrificii Eucharistici, iis tantum exceptis
quae aliis Congregationibus reservata sunt.
§ 3. Ipsa cognoscit quoque et exclusive de facto
inconsummationis matrimonii et de exsistentia causa-
rum ad dispensationem concedendam, nee non de iis
omnibus, quae cum his sunt connexa. Potest tamen
cognitionem horum omnium, si id expedire iudicaverit,
ad Sacram Romanam Rotam remittere. Pariter ad
earn deferri possunt quaestiones de validitate matri-
monii, quas tamen, si accuratiorem disquisitionem aut
investigationem exigant, ad tribunal competens remit-
tal Eodem modo ad ipsam pertinet videre de obliga-
tionibus ordinibus maioribus adnexis, atque examinare
jle
I , Original from
UNIVERSITY OF WISCONSIN
-'
CANON 249 255
quaestiones de ipsa validitate sacrac ordinationis, aut
eas ad tribunal compctcns remittcre. Et ita porro dc
aliis Sacramcntis.
The S. Congregation of the Sacraments is entirely new.
This Congregation is occupied with whatever concerns
the seven Sacraments, with the exception of what belongs
to the jurisdiction of the Holy Office and the Congre-
gation of Rites.
To it also is referred whatever pertains to the decision
and granting of dispensations in matters of marriage and
other Sacraments. This Congregation is alone competent
to decide whether a marriage is consummated, whether
the reasons for granting a dispensation truly exist, and
all matters connected therewith. However, if it deems
it expedient, it may refer any matter to the S. R. Romana.
To the Congregation of the Sacraments may be reported
questions concerning the validity of matrimony, but it
will refer these to the competent tribunal if a more ac-
curate examination or investigation is required. This
Congregation is also competent to investigate the obliga-
tions arising from higher orders and to examine the
validity of ordination or remit such cases to the competent
tribunal. According to the " Sapicnti Consilio" to the
S. Congregation of the Sacraments must be addressed the
following petitions :
( 1 ) Concerning the preservation of the Blessed Sacra-
ment in oratories which otherwise would not enjoy that
privilege ;
(2) Concerning the celebration of Mass in the open air,
or on board a vessel, before dawn or after noon, or on
Holy Thursday ;
(3) Concerning the privilege of saying Mass de Beata
or requiem on acccount of eye trouble;
G I Originalfrom
°°alc UNIVERSITY QFWI5C0NSIN
256 ECCLESIASTICAL PERSONS
St
(4) Concerning the privilege of private oratories with
the right of having Mass said there.
Besides, as is plain from the text, this S. Congregation,
perhaps the most occupied of all, is competent to grant
dispensations from impediments of a public character, to
rich and poor, so that " in forma pan per urn n no longer
pertains to the S. Poenitentiaria.
■
THE S. CONGREGATION OF THE COUNCIL
This Congregation was originally known as "S. Con-
gregatio Cardinalium Concilii Tridentini Interpretum"
It was instituted by Pius IV, Aug., 1564, and was charged
with the execution of the reform decrees of the Council
of Trent, to which Pius V added that of interpreting
authentically the Tridentine decrees and settling contro-
versies arising in connection therewith. The importance
of this Congregation has diminished considerably since
the S. C. of the Sacraments was established.
Can. 250
§ i. Congregationi Concilii ea pars negotiorum est
commissa, quae ad universam disciplmam clcri saecu-
laris populique christiani refertur.
§ 2. Quamobrem ipsius est curare ut christianac vitae
praecepta serventur, cum facilitate opportune ab cis-
dem fideles dispensandi; rnoderari quae parochos et
canonicos spectant; aut quae pias sodalitates, pias
uniones (etiamsi dependeant a religiosis vel erectae sint
in cor urn ecclesiis seu domibus), pia legata, pia opera,
Missarum stipes, beneficia aut officia, bona ecclesia-
stica, mobilia et immobilia, tributa dioeccsana, taxas
curiarum episcopalium aliaquae huiusmodi attingunt
Eidem reservata est facultas eximendi a conditionibus
oogle
^ ,|y, " riginal from
UNIVERSITY OF WISCONSIN
CANON 250 257
requisitis ad assecutionem beneficioruni, quoties ad Or-
dinarios coram collatio spectat; admittendi ad cora-
positionem eos qui occuparunt bona ecclesiastica, etiam
pert inentia ad reli giosos ; permittendi ut fidcles acqui-
rant bona ecclesiastica, a potestate civili usurpata.
§ 3- Videt quoque de iis omnibus, quae ad imrnunita-
tem ecclesiasticam pertinent, itemque de controversiis
circa praecedentiam, salvo iure Congregationis de
sodalibus religiosis et Congregationis Caeremonialis.
§ 4. Ad candem pertinent ea omnia quae ad Concili-
orum celebrationem et recognitionem atque ad Episco-
porum coetus seu conferentias referuntur, extra loca
quae subsunt Congregationi de Prop. Fide.
§ 5. Est autem haec Congregatio competens in
omnibus controversiis negotia eidem commissa spec-
tantibus, quas in linea disciplinari pertractandas cen-
suerit ; cetera ad tribunal competens sunt def erenda.
This Congregation, therefore, is competent in admin-
istrative matters pertaining to the secular clergy and to
confraternities, beneficiary provisions, immunities, prece-
dence. Besides it grants permission to hold councils, the
documents and decrees of which must be submitted to it
for approbation.
the s. congregation of religious
Can. 251
§ 1. Congregatio negotiis religiosorum sodalium
praeposita ea sibi exclusive vindicat quae respiciunt
regimen, disciplinam, studia, bona et privilegia religi-
osorum sodalium utriusque sexus turn sollemnibus turn
simplicibus votis adstrictorum, eorumque qui, quam-
vis sine votis, in communi tamen vitam agunt more
^Ic
j ^ Original from
UNIVERSITY OF WISCONSIN
258 ECCLESIASTICAL PERSONS
religiosorum, itemquc tertiorum Ordinum saccular ium,
incolumi iurc Congregationis dc Prop. Fide.
§ 2. Quapropter, quacstionibus ordine iudiciario
tractandis ad tribunal competens remissis et incolumi
semper iure Congregationis S. Officii et Congregationis
Concilii circa negotia ad ipsas spectantia, haec Con-
gregatio quaestiones omncs suae coir.petentiae in linea
disciplinari dirimit; sed si quaestio vertatur inter re-
ligiosum sodalem et personam non religiosam, ipsa,
praesertim ad instantiam partis, potest quoquc. si
aequum iudicaverit, eandem quaestionem ad aliam
Congregationem aut tribunal remittere.
§ 3. Huic denique Congregationi reservatur conces-
sio dispensationum a iure communi pro sodalibus religi-
osis, finno praescripto can. 247, § 5.
-
The S. Congregation of Religious is exclusively com-
petent in whatever concerns the government, discipline,
studies, property and privileges of religious of both sexes,
either with solemn or simple vows, as also of such as have
no vows but live a common life like religious, and of
secular tertiaries.
Wherefore, with the exception of judiciary matters to
be referred to the competent tribunals and of whatever
pertains to the Holy Office and the S. C. of the Council,
this Congregation settles all disciplinary questions belong-
ing to its competency. To this Congregation is also re-
served the granting of all dispensations to religious.
Formerly there existed a S. C. Episcoporum et Regu-
larium, which had great authority and was probably in-
stituted by Pius V ; at least its regesta run from the end
of the year 1572 and embrace a threefold division of
cases: Episcoporum, Regulariutn, Monialium. The ma-
oogle
, ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 252 259
terial was almost entirely collected by the Benedictines of
St. Anselm's College when the reorganisation was ef-
fected but for some reason or another the Collectanea
were never published.
u
THE S. CONGREGATION OP THE PROPAGANDA
tt
Since the Catholic Church began to spread across the
seas, to the East and West Indies, and established mis-
sions in the countries newly added to its jurisdiction, she
has taken particular care of these. Peculiar conditions
called for special legislation, which was adapted to the
tcrrae missionum " as distinguished from the provinces
of the regular hierarchy. In order to insure an orderly
and stable procedure in the transaction of missionary mat-
ters Gregory XV, in 1622, founded this Congregation.14
By Clement IX (1720) the same was entrusted with the
revision of the books of Orientals. Pius IX reformed
the Propaganda and created a new section " pro negotiis
ritiis orientalis" (1862), now detached.
The competency of the Propaganda is locally circum-
scribed by the so-called " mission territories." Several
countries which formerly were subject to its jurisdiction
(the U. S., England, Ireland, Scotland, Holland, Luxern-
berg, Canada) are now withdrawn from it and placed
either under the regular hierarchy or among the " prov-
inces of the Apostolic See."
Can. 252
§ 1. Congregatio de Propaganda Fide missionibus ad
praedicandum Evangelium et catholicara doctrinam
l* " Inscrutabili divinae," June ing of missionaries; it is entirely
22, 1622. Urban VIII erected the under the S. C. Prop. Fide.
Collegium Urbanum for the train-
od by Google
j ^ Original fro m
UNIVERSITY OF WISCONSIN
2<5o ECCLESIASTICAL PERSONS
praecst, ministros necessarios constituit ct mutat, fa-
cultatemque habet tractandi, agcndi et exaequendi
omnia hac in re necessaria et opportuna.
§ 2. Curat ea omnia quae ad Conciliorum celebra-
tionem in locis sibi subiectis pertinent.
§ 3. Eius iurisdictio lis est circumscripta regiom-
bus, ubi, sacra hierarchia nondum constitute, status
missionis perseverat. Huic Congregation! sunt etiam
subiectae regiones, quae, etsi hierarchia inibi consti-
tuta sit, adhuc inchoatum aliquid praescfcrunt. Eidem
pariter subsunt societates ecclesiasticorum ac Semi-
naria quae exclusive fundata sunt eo fine, ut in eis
instituantur missionarii pro exteris missionibus, prae-
sertim quod attinet ad eorum regulas, administratio-
nem atque opportunas concessiones ad sacram ordina-
tionem alumnorum requisitas.
§ 4. Haec autem Congregatio tenetur ad competen-
tcs Congregationes deferre negotia quae aut fidem at-
tingunt, aut causas matrimoniales, aut generales nor-
mas circa sacrorum rituum disciplinam tradendas vel
interpretandas.
§ 5. Quod vero spectat ad sodales religiosos, eadem
Congregatio sibi vindicat quidquid religiosos qua mis-
sionarios, sivc uti singulos sive simul sumptos, tangit.
Quidquid vero religiosos qua tales, sive uti singulos
sive simul sumptos attingit, ad Congregationem reli-
giosorum negotiis praepositam remittat aut relinquat.
Q
This Congregation presides over the missions, provides
them with ministers, and has power to do whatever it
deems necessary for their benefit.
Its jurisdiction is restricted to provinces which as yet
have no hierarchic constitution, but are still in the mis-
sionary state. To it are subject also those regions in
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gk
CANON 253 261.
which the hierarchy is in an incipient state and all soci-
eties of ecclesiastics and seminaries founded exclusively
for the foreign missions.
As to religious, this Congregation is competent in what-
ever touches them as missionaries, either individually or
as a body. But whatever concerns religious as such must
be referred to the Congregation of Religious.
the s. congregation of rites
Can. 253
§ 1. Congregatio Sacrorum Rituum ius habet vi-
dendi et statuendi ea omnia quae sacros ritus ct caere-
monias Ecclesiae Latinae proxime spectant, non autem
quae latius ad sacros ritus referuntur, cuiusmodi sunt
praecedentiae iura aliaque id genus, de quibus sive ser-
vato ordine iudiciario sive in linea disciplinari disce-
ptetux.
§ 2. Eius proinde est praesertim advigilare, ut sa-
cri ritus ac caeremoniac diligenter serventur in Sacro
celebrando, in Sacramentis administrandis, in divinis
officiis persolvendis, in iis denique omnibus quae Ec-
clesiae Latinae cultum respiciunt ; dispensationes con-
cedere opportunas; insignia et honoris privilegia tarn
personalia et ad tempus, quam localia et perpetua, quae
ad sacros ritus vel caeremonias pertineant, elargiri, et
cavere ne in haec abusus irrepant.
§ 3. Denique ea omnia agit quae ad beatificationem
et canonizationem Servorum Dei vel ad sacras reli-
quias quoquo modo referuntur.
The business of this important Congregation is, there-
fore, to watch over the proper observance of the sacred
rites and ceremonies in the celebration of the Mass, the
►ogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
N
■
a62 ECCLESIASTICAL PERSONS
administration of the Sacraments, the Divine Office, and
everything pertaining to the worship of the Latin Church.
It grants dispensations, distributes insignia and honorary
privileges, either personal and temporary, or local and
perpetual, which are connected with rites and ceremonies,
and safeguards against abuses.
This Congregation has the right to decide what belongs
to the rites and ceremonies of the Latin Church, especially
to approve the official liturgical books, such as the Ritual
and the Pontificale Romanum, the Missal, the approbation
of feasts, etc.
It also supervises the beatification and canonization of
the Servants of God and the cult of sacred relics.
the s. congregate caeremoniaus
Can. 254
Ad Congregationem Caeremonialem pertinet mode-
ratio caeremoniarum in Sacello Aulaque Pontifical!
servandarum et sacrarum functionum quas Patres Car-
dinales extra pontificale sacellum peragunt; itemque
eadem Congregatio cognoscit quaestiones de praece-
dentia turn Patrum Cardinalium turn Legatorum quos
variac Nationes ad Sanctam Sedem mittunt.
This Congregation is entrusted with the direction of
the ceremonies to be observed in the papal chapel and
court, of the sacred functions which the Cardinals per-
form outside the papal chapel, and the decision of ques-
tions concerning the precedence of Cardinals and ambas-
sadors accredited to the Holy See.
G j Original from
OOglL UNIVERSITY 0FWI5C0NSIN
CANON 255 263
IHE S. C. FOR EXTRAORDINARY ECCLESIASTICAL AFFAIRS
•a
Cam. 255
Ad Congregationem pro ncgotiis ccclesiasticis ex-
traordinarhs spectat dioeceses constitucrc vel dividcrc
ct ad vacantes dioeceses idoneos viros promovere, quo-
ties hisce de rebus cum civilibus Guberniis agendum
est ; insuper Congregatio in ea negotia incumbit, quae
eius examini subiiciuntur a Summo Pontifice per Car-
dinalem Secretarium Status, praesertim ex illis quae
cum legibus civilibus coniunctum aliquid habent et ad
pacta conventa cum variis Nationibus referuntur.
This Congregation is entrusted with the erection and
division of dioceses and the promotion of ecclesiastics to
vacant dioceses, whenever these matters must be settled
in accord with civil governments ; besides, it has charge
of affairs submitted to it for examination by the Supreme
Pontiff through the Cardinal Secretary, especially where
civil governments or concordats are concerned.
THE S. CONGREGATION OF STUDIES
—
s
Can. 256
§ 1. Congregatio de Seminariis et Universitatibus
studiorum vigilat super omnibus quae ad regimen, di-
sciplinam, temporalem administrationem et studia Se-
minariorum pertinent, incolumi iure Congregationis
de Prop. Fide. Eidem pariter commissa est moderatio
regiminis ac studiorum, in quibus versari debent
athenaea seu quas vocant Universitates vel Facultates
quae ab Ecclesiae auctoritate dependent, comprehensis
iis quae a religiosae alicuius familiae sodalibus diri-
guntur. Novas institutiones perpend it approbatque;
.'le
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
264 ECCLESIASTICAL PERSONS
if
facultatem conccdit academicos gradus confcrcndi nor-
masque tradit quibus ii conferri debeant, et, ubi agitur
de viro singulari doctrina commendato, potest cos ipsa
conferre.
§ a. In hac Sacra Congregatione connumerantur
inter alios Cardinales Secretarius Congregationis Con-
sistorialis et inter Consultores Assessor eiusdem Con-
gregationis.
This Congregation watches over the government, dis-
cipline, and temporal administration of seminaries, except
those under the Propaganda. It supervises the order and
courses of studies at Catholic universities dependent on
the authority of the Holy See, even those entrusted to
religious communities, examines and approves new insti-
tutions, grants the faculty of and determines the rules
for conferring academic degrees in the name of the Holy
See, and may itself grant such degrees to men dis-
tinguished for their learning and devotion to the Church.
N
■
the s. congregation for the oriental church
Can. 257
§ 1. Congregationi pro Ecclesia Orientali praeest
ipse Romanus Pontifcx. Huic Congregationi reservan-
tur omnia cuiusque generis negotia quae sive ad per-
sonas, sive ad disciplinary sive ad ritus Ecclesiarum
orientalium referuntur, etiamsi sint mixta, quae sci-
licet sive rei sive personarum ratione latinos quoque
attingant.
§ 2. Quare pro Ecclesiis ritus orientalis haec Con-
gregatio omnibus facultatibus potitur, quas aliae Con-
gregationes pro Ecclesiis ritus latini obtinent, incolumi
' I Originalfrom
$lc UNIVERSITY OF WISCONSIN
N
■
CANON 258 265
tamen iure Congregationis S. Officii ad normam
can. 247.
§ 3. Haec Congregatio controversias dirimit via di-
sciplinari ; quas vero ordine iudiciario dirimendas iudi-
cavcrit, ad tribunal remittet quod ipsa Congregatio
dcsignavcrit.
To this Congregation appertain all affairs which touch
either persons or the discipline and rites of the Oriental
Churches, even such as are of a " mixed " nature, vis,
in part concern Latins. However it can settle matters
administratively only ; all judiciary questions must be re-
ferred to tribunals designated by the same Congregation.
The Congregation for the Oriental Church appears to
be a new creation, for it formerly formed part of the S. C.
of the Propaganda, to which latter was also attached, as a
special department since the time of Pius VII, the so-
called Reverenda Camera Spoliorum. Pius VII had
made a large loan of the Propaganda and, in partial pay-
ment thereof, assigned to that Congregation the revenues
from vacant benefices which would otherwise be claimed
by the Apostolic Exchequer.15 The Code makes no men-
tion of this, probably because it is of a private nature.
ART. II
TRIBUNALS OF THE ROMAN COURT
The Sacra Poenitentiarta
Can. 258
§ r. Sacrae Poenitentiariae praeficitur Cardinalis
Poenitentiarius Maior. Huius tribunalis iurisdictio
18 " Spolii jura,*' June 19, 181;; Hilling, /. c, p. 81.
loogle
, ,] , Original from
UNIVERSITY OF WISCONSIN
266 ECCLESIASTICAL PERSONS
coarctatur ad ea quae forum internum, etiam non sa-
cramentale, respiciunt; quare hoc tribunal pro solo
foro interno gratias largitur, absolutiones, dispensa-
tiones, commutationes, sanationes, condonationes ; ex-
cutit praeterea quaestiones conscientiae easque dirimit.
§ a. Eiusdem insuper est de iis omnibus iudicare
quae spectant ad usum et concessionem indulgentia-
rum, salvo iure S. Officii videndi ea quae doctrinam
dogmaticam circa easdem indulgentias vel circa novas
orationes et devotiones respiciunt
In the eleventh and twelfth centuries so-called Apostolic
confessors were chosen from the papal court, and in the
thirteenth century a Cardinal held a prominent place
among these poenitentiarii, who had the power to absolve
from papal censures and to impart certain dispensations.
As a corporation or college, or as a regular tribunal, these
poenitentiarii were established by Benedict XII, in 1338."
After repeated reorganizations, Benedict XIV gave to this
body the form which it has substantially retained to the
present time.11 It is now composed of the Cardinal
Penitentiary, the Regens, a theologian, five prelates of the
Signatura, a secretary and several minor officials.
Its jurisdiction is limited to the court of conscience,
confessional and extra-confessional, and hence this tribu-
nal grants absolutions, dispensations, commutations, sana-
tions, condonations, and solves cases of conscience. It is
also empowered to judge concerning the use of indulgen-
ces, with the exception of dogmatic questions regarding
the same and of new prayers and devotions, which de-
partments belong to the domain of the Holy Office.
It " In agro Dominico," April 8, If Benedict IV, " Pastor bonus "
1338: cf. the classical treatise of and "In apostolica." Ap. 13. 17441
Goellcr, Dit PSpttliche Ponittn- Hilling, I. c, p. 127 f.; Annuorio
tiorit, 1907, Vol. I. Pontifieio, 1917, p. 369.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 259 267
The Rota and the Signatura
The assessors of the Rota are called auditorcs. The
term occurs in the Decretals as well as "Auditorium." x%
The auditors constituted a college in the first decades
of the 14th century, for the constitution "Ratio iuris,"
of John XXII (1326) supposes a corporate body
of the "sacri palatii causarum generates auditores." 19
Perhaps this was at first a worldly tribunal for the papal
dominions, but in course of time it was transformed into
an ecclesiastical corporation. As " Rota " it is mentioned
in a constitution of Martin V.*° The name has found
various explanations. Some hold that it arose from the
custom of the auditors of holding their meetings at a
round table or, at Avignon, in a room with a fretted
ceiling (" rota porphyretica lacunar ") ; but it seems
more probable that the name owes its origin to the custom
of filing the official records in the form of rolls in a
barrel-shaped bookshelf (in pluteo or rotulo).21 How-
ever this may be, the Rota since the 14th century has
been often reformed as to the number of auditors and
mode of procedure. It maintained its reputation, al-
though somewhat diminished after the institution of the
congregations, up to the year 1870, when it seemed that
the " charioteer and master of all tribunals n was doomed
to a slow death. But Pius X revived and restored the
Rota.
a
Its constitution is officially established in the " Sapienti
consilio " and the " lex propria." The Rota consists of
ten prelates appointed by the Roman Pontiff. The primus
18 Philipps, K.-R-, VII, 307 f. Rom. Pont., I, P. II, p. 696; Goel-
xo Bull. Taurin., It. IV, 317 ff. ler. In Arckiv. fBr Kath. K.R.,
20 lb., p. 708 i. I 17. iQii-
21 Ehrle, Historia Bibliothtcae
.*Ie
I , Original fro ni
UNIVERSITY OF WISCONSIN
268 ECCLESIASTICAL PERSONS
inter pares is called dean. The auditors are allowed to
choose an assistant (coadjutor), to be approved by the
pope, who appoints a promoter justitiae and a defensor
vinculi. Besides these there are a number of approved
lawyers, from whom the litigants must choose one, and
minor officials. The Rota is competent to try all cases
which arc not causae tnaiores, including criminal cases
committed to it by the Pope, either motu propria or at the
request of the parties concerned. The Rota may also
decide in the second and third instance, and in the last
instance in cases tried by an inferior tribunal. The
auditors give their decisions in turns of three, or in more
important cases or last instances, in pleno. Their sen-
tences may be overthrown for formal reasons, otherwise
they are final.
Formerly there were two scgnature, one called gratiae,
the other iustitiae. In the course of time one was deemed
sufficient, and hence it was but natural that at the re-
organization of 1908 the two were welded into one.
Benedict XV has further determined the authority of this
tribunal,22 which has entered the new Code in a modified
form.
Can. 259
Causae ordinem iudiciarium requirentes aguntur
apud Sacram Romanam Rotam et apud Supremum
Tribunal Signaturae Apostolicae intra fines et secun-
dum normas traditas in can. 1598-1605, salvo iure Con-
gregations S. Officii et Congregationis Sacrorum Ri-
tuum in causas sibi proprias.
Causes requiring judiciary procedure are to be treated
**A. Ap. S., 1915, p. 320 ff; Annuario Pontificio, 1917, p. 370 f.
oogle
(^ ^ s ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
CANON 260 269
by the S. Roman Rota and the Supreme tribunal of the
Apostolic Signatura, according to the norms laid down
in can. 1598-1605, except matters pertaining to the Holy
Office and the S. Congr. of Rites.
ART. Ill
T
THE OFFICES OF THE ROMAN COUET
c
The Apostolic Chancery
The Apostolic Chancery grew out of the scriniutn men-
tioned under Damasus I (366-384). In the eleventh cen-
tury the Librarian of the Holy Roman Church appears
also as Chancellor of the same, but was called vice-chan-
cellor, because it seemed unfit that a cardinal should hold
that office.93 Now the cardinal presiding over the chan-
cery is styled Cardinal-Chancellor, and is assisted by a
regens, his substitute, and several prothonotaries Apostolic
and minor officials (mostly laymen).24
Can. 260
§ 1. Cancel lariae Apostolicae, cui praeest Cardina-
lis Cancellarius Sanctae Romanae Ecclesiae, hoc est
proprium munus, apostolicas expedire litteras seu
bullas pro benenciorum et officiorurn consistorialium
provisions novarum provinciafum et dioecesium ac
capitulorum institutione et pro aliis maioribus Eccle-
siae negotiis conficiendis.
§ a. Quae litterae seu bullae ne expediantur nisi de
mandate Congregation's Consistorialis circa negotia
ad eius competentiam spectantia, aut de mandate
a Bresslau, Urkuttdenlehre, 1889, Cistercian Order were the plumb*-
I, 173 ff. tores at the Apostolic Chancery.
s« Formerly lay brothers of the
§le
k ,|rt Original from
UNIVERSITY OF WISCONSIN
370 ECCLESIASTICAL PERSONS
Summi Pontificis circa alia negotia, servatis in singu-
lis casibus ipsius mandati tcrminis.
The Apostolic Chancery expedites pontifical documents
or bulls for the provision of consistorial benefices and
offices, for the erection of new provinces, dioceses, and
chapters, and for other ecclesiastical affairs of importance.
These documents or bulls cannot be dispatched without
the command of the S. C. Consistorialis in matters per-
taining to the latter's competency, or without a mandate
of the Supreme Pontiff concerning other matters; in any
case the limits of the mandate must be strictly observed.
The Apostolic Datary
No later than the 13th century there was attached to
the Apostolic Chancery a place or locality where petitions
to the Pope were received. This was called "communis
data** and later on, " tribunal gratiae concessae.'* 2i It
developed in course of time into a regular tribunal of dis-
pensations, especially for matrimonial cases, and since
Innocent X (1644-1655) was presided over by a cardinal
pro-datary. At present it has lost much of its signifi-
cance. The personnel consists of the cardinal datary, a
subdatary, and a prefect.
Can. 261
Datariae Apostolicae, quam moderatur Cardinalis
Datarius Sanctae Romanae Ecclesiae, commissum est
cognoscere de idoneitate promovendorum ad beneficia
non consistorialia Apostolicae Sedi reservata ; conficere
et expedire apostolicas litteras pro eorum collatione;
eximere in conferendo beneficio a conditionibus requi-
3ft Bresslau, /. c, p. 331.
gle
£ * -» v i\s* Original from
UNIVERSITY OF WISCONSIN
CANON 262 WJX
sitis, quotics eius collatio ad Ordinarium non pertinct ;
curare pensiones et onera quae Summus Pontifex in
memoratis conferendis beneficiis imposuerit
-
The Apostolic Datary, at the head of which is a Cardi-
nal of the Holy Roman Church, investigates the fitness
of candidates proposed for benefices that are reserved to
the Apostolic See but not conferred in consistory. It also
composes and dispatches the Apostolic letters for their
appointment, grants exemption from qualities required in
the appointees to benefices which do not belong to the
Ordinary, and takes care of the pensions and taxes im-
posed by the Supreme Pontiff in conferring such benefices.
The Reverenda Camera Apostolica
After the office of Archdeacon of the Holy Roman
Church had, especially through the efforts of Gregory
VII (1073-1085), lost much of its former exorbitant
power, the Camerlengo took his place and soon acquired
the rank of a cardinal. The Camera was a place in the
papal palace where the treasury and the sacred vessels and
vestments (il tesoro) were kept.2" Under Leo X the
Camerlengo became the exchequer of the Papal State as
well as of the Church, whilst the vice-came rlengo was
governor and the auditor judge-in-ordinary of the City."
Now the R. C. A. has a Cardinal Camerlengo (not the
same as the Camerlengo del Sacro Collegio), a Vice-
o
Camerlengo, an auditor general, and a treasurer.
Can. 262
Camerae Apostolicae, cui praesidet Sanctae Roma-
J« Mabillon, Iter Italicum, 1724* » L« X, » EUi pro," June 28,
II, 3«a, 450. 488. 1514-
Go >gle
Original fro m
UNIVERSITY OF WISCONSIN
■
Q
272 ECCLESIASTICAL PERSONS
nae Ecclesiae Cardinalis Camerarius, cura est atque
administratio bonorum ac iurium temporalium San-
ctae Sedis, quo tempore praesertim haec vacua habea-
tur; et tunc adamussim serventur nonnae statutae in
const. Pii X Vacante Sede Apostolica, 25 Dec. 1904.
The Camera Apostolica administers the temporal prop-
erty and rights of the Holy See, especially during a
vacancy, when the rules laid down by Pius X in the
"Vacante Sede Apostolica" (Dec. 25, 1904) must be
strictly observed.
Tht Secretariate of State
It is evident that the office of Secretary of State is one
of " confidence and authority, of great prominence in the
Curia." 28 Apostolic secretaries or confidential chaplains
were known as early as the 14th century. Of a " College
of Apostolic secretaries " we hear in the constitution of
Innocent VIII, who reformed it.B0 The same Pontiff also
created the office of a " domestic or intimate secretary/'
who often was a near relative of the Pope (nepos).
After Julius II (1503-1513) had established permanent
nuncios, the authority of the nepos, who received the
cardinal's title and was therefore called Cardinal Nepos,
increased so that he managed all the diplomatic affairs of
the Papal Court. Many incumbents of this office also
held the tide of Vice-Chancellor of the H. R. Church.
However after the golden age of nepotism had passed,
especially through the efforts of Innocent XI (1676-
1689), the Cardinal Nepos disappeared before the Cardi-
a
c
2fl Annuario Pontificio, 1917, p. Dec. 31, 1487 (.Bull., Taur., V,
573- 330 ff).
29 " Non debet repreheniible,"
jle
£ " ^ v -iL-. Original fro ni
UNIVERSITY OF WISCONSIN
CANON 263 273
nal Secretary, who thus became what he now is : Secretary
of State or Prime Minister of the Pope.
Can. 263
Officium Secretariae Status, cuius moderator est
Cardinalis Secretarius Status, constat triplici parte
hoc or dine :
i.° Prima pars, cui praesidet Secretarius Congre-
gationis pro negotiis ecclesiasticis extraordinariis, ver-
satur in negotiis quae eidem Congregationi exami-
nanda subiici debent ad normam can. 255, ceteris pro
diversa eorum natura ad peculiares Congregationes re-
missis ;
a.° Altera pars, cui praeest Substitutus, incumbit
in ordinaria negotia ;
3.0 Tertiam partem dirigit Cancel la ri us Breviutn
Apostolicorum, qui vacat expedition! Brevium.
The office of Secretary of State consists of three
departments. (1) The first, presided over by the Secre-
tary of the Congregation for Extraordinary Ecclesiastical
Affairs, deals with matters which (can. 255) are sub-
mitted to the authority of that congregation. (2) The
second, headed by the Substitute, deals with matters of
ordinary occurrence. (3) The third department, under
the Chancellor of Apostolic Briefs, attends to the expedi-
tion of papal Briefs.
a
Can. 264
Ad Secretarias Brevium ad Principes et Epistola-
rum latinarum spectat munus latine scribendi acta
Summi Pontificis, ab eodem illis commissa.
The Secretariate of Briefs directed to Princes and of
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
274 ECCLESIASTICAL PERSONS
Latin Letters is charged with writing in Latin the docu-
ments with which the Sovereign Pontiff entrusts it.
Authority of tht Roman Court and Its Decisions
The Sacred Congregations are the first and most con-
spicuous bodies that share in the labors of the Supreme
pontificate,10 wherefore Pius X calls these, together with
the Tribunals and Offices, the Roman Court, which has
" to deal with the affairs of the universal church." "
From this it is apparent that the congregations act as
true judges in their own domain, in the name and with
the authority of the Pope. And although it may be truly
said that their jurisdiction is ordinary, yet it is entirely
dependent on the Supreme Pontiff. Hence this Court de
facto enjoys the same authority as the Pope himself, and
its decisions demand obedience and assent from the
bishops as well as from the faithful and the clergy.82
This is evident also from the fact that all decisions of
more than ordinary importance or of extraordinary char-
acter must be reported to the Pope.83
We now aproach the question of the juridical value of
the decisions of the various Congregations and Tribunals.
(1 ) Concerning favors, there is little difficulty, for they
touch only persons directly concerned, and therefore are
of a private nature. However, if a favor curtails the
right of a third person, the latter must first be asked,
either directly or through the Ordinary.34
(2) As to questions that may be settled by way of
•OSbctu» V, " ImmcnM," June 41ft.
mm, 1587. 83 Cfr. can. 244, fi 1.
8i"Sapienti consilio " (A. Ap. 3*,fSapienti consilio," Ordo ser-
S.t I, 8). vandus, III. 1 {A, Ap. S., I, 6a).
•• Santi-Leitner, /. c, 1, 31, n.
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
igle
-'
GANON 264 375
discipline or administration, i. e., without a judicial trial
(absque strepitu iudicii), as, for instance, many liturgical
questions or questions concerning parish priests and chap-
lains of institutions or confraternities, — if this mode of
settlement is accepted by the parties, then these parties
have to abide by the decision of the respective Congrega-
tion and are not allowed to pursue their rights by judicial
action, unless the S. Congregation itself refers the case
to a competent tribunal." From this it is evident that
particular decisions touching single cases and persons bind
those for whom they are issued, but not outsiders, and
hence we sometimes find the clause " et non amplius"
added, which means : " et amplius non proponatur" " i. e.,
the case is definitively settled. But even this clause does
not make it impossible to have the case again proposed to
the Roman Court if new reasons are found. In this case
the remedy, which is not unlike the "restitutio in inte-
grum/' must be resorted to. This is granted by the
Pontiff.
Concerning the sentences of the Rota, the benefit of
restitution to the former judicial status is granted by the
Signatura Apostolica.17
(3) The judicial sentences of the Roman tribunals,
though not irretrievable, must be obeyed by the parties
concerned, as long as no "restitutio in integrum" is
granted. The latter suspends the effect of the sentence
if its execution has not yet begun."
Besides particular decisions and sentences there may be
IB Can. 1905-1907. That the icn-
tenccs of the S. R. Rota are final,
the Boni Castellaine-Gould case
pruvca.
-
■6 lb., p. 6$.
--
so Santi-Leitner, /. c, I, 31, n.
44.
B
87 ■ Sapienti conailio " (A. Ap.
V
S„ I, 18); can. 1603.
<
0
-
I
I
-
«t..< .1 A* \fllrf-*
Original from
UNIVERSITY OF WISCONSIN
276 ECCLESIASTICAL PERSONS
general decisions, which as a rule emanate from the Con-
gregations, because the Tribunals are more or less occu-
pied with particular sentences. When issued as " Decreta
Urbis et Orbis " these general decrees bind the universal
Church, provided no particular custom stands in the way.
But, though they must be received with due respect, they
are not irretrievable, much less infallible, unless the
Roman Pontiff should publish such a decree by means of
a solemn Constitution.88 Instances to prove that even the
decrees of the Holy Office are not irreformable or in-
fallible, may be found in the Gallilei case (Feb. 15, 1616),
and the decision of 1897 concerning the Comma Ioan-
neum.40
As to future general decisions of the Roman Congre-
gations note that any one which is not based on a strictly
comprehensive interpretation of the New Code, but is
either extensive or restrictive, is tantamount to a new law
and lacks retroactive force.41 Benedict XV has ordered
that the Roman Congregations should for the present ab-
stain from issuing " new general decrees," but limit their
decisions to instructions and strictly declaratory explana-
tions.48
There are collections of Roman decrees called authentic,
for instance, of the S. C. of Rites and the Propaganda
(1907), which contain many decisions of a strictly par-
ticular nature, whilst others bear the title " decretum
Urbis et Orbis/' Do the particular decisions lose their
nature by being inserted in such a collection? By no
'.<-.
■9 Santi-Leitner, 1 . 39, n. 70 f. Holy Ghost omitted to quote that
40 " L'trum tuto negari ant sal- text, although occasions were not
tern in dubiura revocari possit, esse wanting. Cfr. Pchle-Preusa, 'The
authentlcum textum S. Ioannis in Divine Trinity, pp. 30 sqq.
Kp. I, 5, 7? Negative."— Pope 41 Can. 17, 5 a.
Leo XIII was approached on the *-' " Cum Juris canonici," Sept.
subject, and in his Encyclical on the 15, 1917 {A. Ap. S., IX, 530).
jle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 264 277
fit
means. For " authenticity * in that case is entirely dif-
ferent from that of the three authentic collections of the
Decretals, and means neither more nor less than that the
decisions contained in those collections are genuine, i. c,
were really given by the Congregations to whom they are
ascribed. An illustration of the truth of our contention
is the fact that Cardinal Gasparri never refers to the
"Decrcta Authentica" of the S. R. Congr., but merely
quotes the date of the decisions.
>Ic
£ " ^ v %\s* Original from
UNIVERSITY OF WISCONSIN
CHAPTER V
LEGATES OF THE ROMAN PONTIFF
Dependent on the Curia, and on the Secretary of State
in particular, are those representatives of the Sovereign
Pontiff who go by the name of legates. The right of
sending and receiving legates (ius legationis activum et
passk'um) is inherent in the spiritual sovereignty of the
Pope.1 It is evident, however, that the actual relations
between the Pope and secular governments will differ
according to the connection existing in each case between
Church and State (sacerdotiunt et imperium). In other
words, where there is a complete separation between the
spiritual and temporal power, papal legates will not exer-
cise diplomatic functions in the proper sense, nor be ac-
knowledged by the public authorities as representatives
of the Sovereign Pontiff. Their mission in such coun-
tries is limited to merely ecclesiastical matters and their
position or rank is strictly ecclesiastical.
After this preliminary observation a few remarks on
the historical development of the institution of papal
legates may not be out of place. We hear of a Vicar
Apostolic of IHyricum in the fourth century, whose office
was entrusted to the Archbishop of Thessalonica (Sa-
loniki). Similar rights and attributes were later be-
l Pius VI. RcBponsio ad Metro- nied the right of the Pope to send
politanos Mig., Trev., Col., Sal- nuncios and to grant dispensation*,
iiburg.. super Nuntiattiris Apo- in an endeavor to impoie Febro-
stoHcit, Romae 1789. The to-called nian principles upon the Church.
" Punctiutio of Ems," 1 786, de-
*7*
G\ ^ Original from
OOglt UNIVERSITY OF WISCONSIN
■
9
CANON 265 279
stowed on certain prominent sees in Gaul (Aries, 545).
Spain (Seville, 520), and Germany (Treves, 909, Salz-
burg, 973). The incumbents of these sees were consid-
ered to be ipso facto papal legates, or legati nati. Out of
these in the eleventh century grew the so-called primates,
who have now dwindled into insignificance.2
Another species of legates, of greater and more lasting
importance, are the legati missi, Leo I (440-461) sent
Julian of Cos to the Emperor Marcian to look after ec-
clesiastical discipline and watch over the purity of faith,
as well as to observe the proceedings at the imperial court.
If anything should be doubtful, he (Leo) would be ready
to issue further instructions.3 This is presumably the
office of those who were called papal responsales or apo-
crisiarii. In the Orient their activity lasted until Caesaro-
papism brought forth the unhappy schism of the ninth
century.
Legati missi were employed also in the West, not in-
deed permanently, but for temporary or transient mis-
sions, especially in the tenth and eleventh centuries, when
the investiture fight was raging, and in the twelfth and
thirteenth centuries in connection with the crusades.
That the royal courts of England and France were not in
favor of these papal legates is well known.4 But Rome
insisted upon its right, and when permanent nunciatures
had been established upon the model of the Florentine
court (Medici) by Julius II, the papal legates became
regular diplomatic agents of the Pope, who in turn re-
ceived the envoys of civil governments.
2 That of Hungary (Strigonensis s Ep. 113: " Consulctiti . . .
or Gran) hai preserved a few of non deerit relationibua tuii mca«
the ancient prerogatives, but the responsionis instructio " (Migne,
Code does not favor any exception. P. L., 54, 1025).
can. 271, unless it can be eapeciaUy « Cfr. the following note,
proved by particular law.
'le
£ " ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
280
ECCLESIASTICAL PERSONS
A third kind of legates are the legati a latere, via.,
(sent) from the side of the pontiff. They are of rather
recent date, used merely for transient purposes, and gen-
erally chosen from among the Cardinals. Thus Pius VII
sent Cardinal Caprara to put into effect the Napoleonic
concordat; thus legati a latere have appeared in recent
years at the international Eucharistic Congresses.
Can. 265
■
Romano PontiBci his est, a civili potestate indepen-
dens, in quamlibet mundi partem Legatos cum vel sine
ecclcsiastica iurisdictione mittendi.
Two centuries before John XXII complained of his
rights being curtailed by Christian princes6 Pascal II
uttered the same complaint against the King of England,
who refused to receive papal legates.8 In the new Code
the Pbpe claims the right to send legates anywhere he
pleases. This right can indeed be denied only on the
pretext that the Church is no legal, necessary society
founded by God, that the Sovereign Pontiff is not the
spiritual ruler of that society, and that his power is not
supreme, immediate, and independent within its own
sphere. But these claims, as has been set forth, cannot
be sustained, and the right asserted in Can. 265 is essen-
tial to any sovereign.
bC. un. Extnv. Coimn-, I, x:
" Super gentes ct regna Roman u»
PoGtifcx a Domino constitutes,
cum personaliiet singula a regiones
circuire non pouit, nee eirca gre-
Rem sibi creditum curam paatoralia
•olidtudinii exercere, necette habet
iuterduin ex deblto impoiiue ler-
vitutia, auoa ad divcrsai mundi
partes destinare legato*. " Cfr.
Leo XIII, " Longinqua octant/'
Jan, 6, 1895-
8 Friedberg, Greneen Mivuchen
Staat und Kirche, 1672, p. 729;
477. 54a.
oogle
Original fro ni
UNIVERSITY OF WI5C0NSI
CANON 265 281
The legislator is careful to specify that it is a strictly
spiritual jurisdiction that is exercised by his legates, viz.,
such as in no way exceeds the limits of the power ex-
ercised by the Pope himself.
It follows that if papal legates would deal with political
questions, or such of a mixed nature which concern both
Church and State, the " independent right " would be-
come dependent on the State, which in its sphere is also
sovereign. This latter supposition is not verified, e.g.,
in the case of the Apostolic Delegate at Washington,
whose mission is confined to purely spiritual matters.
It is evident that the Pope will not send legates to
entirely pagan countries, where no Catholic subjects live,
although he can and often does send missionaries for the
purpose of conversion. But no government under whose
regime a goodly number of Catholics live, has the right
to exclude papal legates who come on a purely ecclesias-
tical mission.
Can. 266
a
<j
Dicitur Legatus a latere Cardinalis qui a Summo
Pontifice tanquam alter ego cum hoc titulo mittitur, et
tantum potest, quantum ei a Summo Pontifice deman-
datum est
en
--1
A legatus a latere, then, is a Cardinal sent by the Sov-
ereign Pontiff, and he has precisely as much power as the
Pontiff bestows on him, and no more.
As we have said before, legates were not always wel-
come in the countries to which they were sent. One rea-
son for this was that they committed grievous mistakes
and often exceeded their faculties.7 In the light of his-
tory Canon 266 almost sounds like a warning.
7Cc. 3, 4, X I. 30.
ioi >gle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
282 ECCLESIASTICAL PERSONS
The following canons remove some misgivings which
may arise in the Ordinaries of dioceses.
Can. 267
§ z. Legati qui mittuntur cum titulo Nuntii aut
Internuntii:
i.° Fovent, secundum normas a Sancta Sede recep-
tas, relationes inter Sedem Apostolicam et civilia Gu-
bernia apud quae legatione stabili funguntur;
2.0 In territorio sibi assignato advigilare debent in
Ecclesiarum statum et Romanian Pontificem de eodem
certiorem reddere;
3.0 Praeter has duas ordinarias potest ates, alias
plerumque facultates obtinent quae tamen sunt omnes
delegatae.
§ 2. Qui vero mittuntur cum titulo Delegati Aposto-
lic! unam habent ordinariam potestatem de qua in § I,
n. 2, praeter alias facultates delegatas ipsis a Sancta
Sede commissas.
The office of die legates sent as Nuncios or Internun-
cios, therefore, is to foster friendly relations between the
Apostolic See and the civil governments to which they
are accredited; to observe the conditions of the churches
of the territory assigned to them and inform the Roman
Pontiff thereof. Besides these ordinary functions, they
often receive other faculties, which, however, are all dele-
gated.
Those legates who are sent out as Apostolic Delegates
enjoy the ordinary power mentioned under § i, n. 2, be-
sides other delegated faculties entrusted to them by the
Holy See.
( ".vmiIp Original from
/^jOO^IL UNIVERSITY OF WISCONSIN
-
■
pi
CANON 268 283
Can. 268
§ x. Legatorum munus cum omnibus facultatibus
eisdem commissis non exspirat vacantc Sede Apo-
stolica, nisi aliud in litteris pontificiis fuerit statutum.
§2. Cessat autem, expleto mandate, revocatione
eisdcm intimata, renuntiatione a Romano Pontifke ac-
ceptata.
This canon repeals the enactment, elsewhere made,1
that the office of Legates with all the faculties granted
them does not expire by the vacancy of the Apostolic See,
unless otherwise provided in the Apostolic letters; but,
that, on the other hand, it ceases if the mandate or mis-
sion is fulfilled, or by repeal duly intimated, or by resig-
nation accepted by the Roman Pontiff. A due intimation
means an official or authentic document.
Can. 269
§ 1. Lcgati Ordinariis locorum liberum suae iuris-
dictionis cxcrcitium relinquant.
§ 2. Licet forte characterc episcopali careant, prae-
cedunt tamen omnibus Ordinariis qui non sint cardina-
lity dignitate insigniti.
§ 3. Si charactere episcopali sint aucti, possunt sine
Ordinariorum licentia in omnibus eorum ecclesiis, ex-
cepta cathedrali, populo benedicere et officia divina
etiam in pontificalibus, adhibito quoque throno et ba-
culo, peragere.
Since legates must respect the jurisdiction of the Ordi-
naries, any suspicion on the part of the latter would be
unfounded. Leo XIII justly observed, following St.
SCfr. cc. m i., 6a, I, 15; can, $07; cftn. 181.
i ir\r%\& Originalfrom
gle
UNIVERSITY OF WI5CON5I
284 ECCLESIASTICAL PERSONS
Gregory: " Their rights are sacred to us, their honor is
that of the whole Church, and the pastor's glory is the
solid strength and vigor of his brethren." •
The rules for precedence are laid down in can. 106, i°,
and can. 239, § I, n. 21, concerning cardinals. The term
" all the churches " includes the churches of exempt reli-
ligious.
Can. 270
Episcopis qui, ratione sedis, titulo Legati Apostolici
decorantur, nullum exinde competit speciale ius.
Bishops who are Apostolic legates by reason of their
see, enjoy no special rights on that account.10
* * *
To complete this more or less diplomatic tract we will
add a list of papal nuncios and internuncios and Apostolic
delegates. For the present Pope has divided the whole
ecclesiastical corps into these three classes.11
1. Apostolic Nuncios are at Vienna and Madrid.
2. Apostolic Internuncios in Argentina, Bavaria, Bel-
gium, Brazil, Chile, Colombia, Holland, Peru, Venezuela.
3. Delegates Apostolicf under the S. C. Consistorialis,
are in Canada and Newfoundland, Cuba, the Philippine
Islands, and the United States of America (Mexico also
should have one). Delegates subject to the S. C. Prop.
Fide: Australia, Constantinople, East Indies, Egypt and
Arabia, Greece, Kurdistan and Armenia Minor, Meso-
potamia, Persia, Syria.
9 " Longinqua oceani," Jan. 6, (Monorchia Sicula), but entirely
1895. suppressed by Pius IX (" Suprema,"
10 A certain right, or at least Jan. 28, 1864; cfr. Giannone, 11 fri-
honorary prerogative, of an Apo- bundle delta Monarehia di Sieilia,
stolic legate is still claimed by the 189a).
King of Hungary (cf. Potthast, a A. Ap. S., 1916. p. aij (De-
Reg is t a, n. 10,637), «"»d was vin- cree of May 8, ^in-
dicated by the King of Sicily,
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
-
-'
CANON 270 285
The countries now represented at the Papal Court are :
1. By ambassadors: Austria-Hungary and Spain.
2. By envoys extraordinary: Argentina, Bavaria, Bel-
gium, Bolivia, Brazil, Chile, Colombia, Costa Rica, Eng-
land (on special mission), Holland, Monaco, Peru, Prus-
sia, Russia."
The Congress of Vienna, 1814, fixed the precedence of
nuncios which they still retain. They rank in the first
class, even after the loss of the temporal power of the
Pope."
It is noteworthy that the U. S. maintained, at least for
some years, diplomatic relations with Pius IX (1848 to
1868)."
12 Sinnuario Pontiftcio, 19x7, p. m Cfr. Catholic Fortnightly Re-
579. 29a, 58a ff. vino, (St Louis), Vol. XXV, No.
is Wettlake, International Late, 12; Historical Record/ and Studies
1910, I. p. a86f. of the U. S. Catholic Hist Soc.,
New York, Vol. XI (1918).
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
N
■
CHAPTER VI
PATRIARCHS, PRIMATES, METROPOLITANS
After what has been said about organization and papal
legates, it is superfluous to add anything concerning
patriarchs. As to the metropolitans, a few notes will
suffice.
Metropolitans are bishops who rule over a province
composed of several bishoprics. However, under the
present legislation, the term " rule " must be taken in a
very restricted sense. In ancient times the power of
metropolitans was more extensive, especially in regard to
the election and ordination of the provincial bishops, the
convocation of synods, and trials of the higher and lower
clergy.1 This was but natural since the metropolis was
considered the mother see and center of the whole ecclesi-
astical organism. However, in course of time the author-
ity of the metropolitans was diminished and went to the
general centre, Rome. Metropolitans are also called arch-
bishops, though these terms are not fully synonymous;
for every metropolitan is an archbishop, but not every
archbishop is a metropolitan {e.g., the Archbishop of
Ferrara). The title may be merely an honorary distinc-
tion.8 Every metropolitan has one or more suffragans,
thus called since the eighth century.8 In the Frankish
t Cfr. Nic, cc. 4ff.; c. i, Disl- ropoliUn occurs since the VIII cen-
64; c, 3, Diit. 1a; dictum Gratiani tury, cf. Benedict XIV, Dt Syn.
ad c. I, C. g, q. 3. piotc, II, 4, 3 fl.
2 The title archbishop for met- I V. Scoerer, /. c, I, 53a. In
286
jrVjOOglL UNIVERSITY OF WISCONSIN
-
■
pi
CANON 271 287
Kingdom, and in Italy, especially at Ravenna, the tend-
ency early manifested itself to diminish the number of
metropolitan sees and augment the prerogatives of the
remaining archbishops, in order that they might appear
as primates. These primates were mostly the nominees
of temporal rulers. The abuses of this system were so
grievous that the papacy set to work to arrest the exten-
sion of metropolitan powers, prevent the creation of pri-
matial sees, and generally opposed the growth of tend-
encies which threatened to lead to the establishment of
national churches.*
Can. 271
Patriarchae aut Primatis titulus, praeter praerogati-
vam honoris et ius praecedentiae ad normam can. 280,
nullam secumfert specialem iurisdictioncm, nisi iure
particular! de aliquibus aliud constet.
The title Patriarch or Primate is purely a title of honor
and aside from the right of precedence (can. 280) carries
with it no special jurisdiction, except where particular
laws exist to the contrary.
Our historical remark concerning the tendencies of
certain bishops of France is corroborated by the canon
quoted by Cardinal Gasparri in his edition. Rudolf,
Archbishop of Bourges, claimed patriarchal rights; but
Pope Nicholas I told him that, except where the canons
and legitimate custom permit, patriarchs and primates
have no power over other bishops, unless the Apostolic
See has honored a church by special privileges.5 The
case of the transfer of an arch- g., Msgr. Harry of Omaha).
bishop to a bishop's, fee, he re- * Cfr. Joy-Maitland, St. Nicholas,
tains his title and hence is ad- I, 1001, p. 33 f.
dressed sj Archbishop- Bishop (r. B C. 8, C. 9, q. 3.
'le
/*.,., -J,-, Original from
UNIVERSITY OF WISCONSIN
N
■
ECCLESIASTICAL PERSONS
same answer Innocent III made to an archbishop of
Tours.8 To-day, if we mistake not, only the archbishop
of Gran (Esztergom) in Hungary enjoys any noteworthy
prerogatives.
Can. 272
Provinciae ccclcsiasticae praecst Metropolita seu
Archicpiscopus ; quae dignitas coniuncta est cum sedc
episcopali a Romano Pontificc determinata vel probata.
Over an ecclesiastical province presides a Metropolitan
or Archbishop, and the connection of that dignity with an
episcopal sec must be determined or approved by the
Roman Pontiff.
As the erection of dioceses, so that of provinces, is a
causa maior reserved to the Holy See (S. C. Consist).7
Can. 273
Salvo praescripto can. 275-280, Metropolita in pro-
pria dioecesi easdem obligationes eademque iura habet
quae Episcopus in sua.
Besides the obligations and rights mentioned in can.
275-280, a Metropolitan is bound in his own diocese by
the same duties as a bishop in his, and enjoys the same
rights.
Can. 274
In dioecesibus vero suffraganeis Metropolita potest
tantum:
z.° A patron is ad beneficia praesentatos instituere,
• C. 9, X, X, 31. T Cf . c. a, C. 9, q. 3; can. 215;
can. 348, fa.
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CANON 274 289
■
si Suffraganeus intra tempus iurc statutum, iusto im-
ped imento non detentus, id facere omiserit;
2.0 Indulgentias centum dierum, sicuti in propria di-
oecesi, concedere ;
3.0 Deputare Vicanum Capitularem ad normam can.
43a, §2;
4.0 Vigilare ut fides ac disciplina ecclesiastica ac-
curate serventur, ac dc abusibus Romanum Pontihcem
certiorem facere;
5.0 Canonicam visitationem peragere, causa prius ab
Apostolica Sede probata, si earn Suffraganeus negle-
xerit; tempore autem visitation is, potest praedicare,
confessiones audire etiam absolvendo a casibus Epi-
scopo reservatis, de vita et honestate clericorum in-
quirere, clericos infamia notatos Ordinariis ipsorum, ut
eos puniant, denuntiare, notoria crimina, manifestas et
notorias offensas turn sibi turn suis forte illatas, iustis
poenis, censuris non exclusis, punire;
6.° In omnibus ccclesiis, etiam exempt is, Or dinar io
loci praemonito. si ecclesia sit cathedralis, peragere
pontificalia, uti Episcopus in proprio territorio, populo
benedicere, ciuce ante se delata incedere, non autem
alia exercere quae iurisdictionem import ent ;
7.0 Appellationem recipere a sententiis definitivis
aut interlocutoriis dennitivarum vim habentibus, pro-
lans in Curiis suffraganeis, ad normam can. 1594, § 1 ;
8.° Controversias de quibus in can. 1573, § 2, in
prima instantia dirimere.
As to No. 1 : The right of investing is granted to the
metropolitan if the suffragan delays investiture beyond
two months, for in that case the law fl permits the patron
8 Piui V. "In confercndiB." 1 4; Officio it Pottitalg Ehscofi. P. I.
Richter, Trid,, p. $76; Barbosa, Dg tit 4, n. 20; cfr. can. 455, 458.
gle
, ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
ECCLESIASTICAL PERSONS
to ask the metropolitan for investiture, supposing, of
course, that the candidate is fit. It may be observed that
the Code mentions only benefices of the iiispatronatus,
which is of no importance for the metropolitans of our
country.
No. 3 will be explained in its proper place, under can.
432-
No. 5. As to the canonical visitation, the Council of
Trent B ordained that a metropolitan could perform it in
a diocese of any of his suffragans only after he had vis-
ited his own diocese and with the approval of the pro-
vincial council. The new law modifies the old in two
ways: first, in that the visitation of his own diocese is
not required previously to visiting a suffragan's diocese;
secondly, the reason for visiting the suffragan's diocese
must now be reported to, and ratified by, the Holy See.
This latter enactment is the logical consequence of the
provincial councils being approved by the Holy See. As
soon as the visit is ratified by competent authority, and
the metropolitan enters the diocese of his suffragan, his
jurisdiction becomes as it were ordinary over the sub-
jects of his suffragan, but not over the suffragan him-
self. Hence, (a) he may preach the word of God even
without asking the suffragan; (b) exercise acts of juris-
diction in the confessional as well as outside. To this
latter faculty must be referred the investigation of the
life and conduct of the clergy, and the exercise of con-
tentious jurisdiction. Coercive power may be exercised
by the metropolitan against infamous clergymen10 for
notorious crimes ll which cannot be concealed, especially
if the culprit has been tried by a civil or ecclesiastical
0 Sew. 94, c. 3 de ref., cc I, 5, ajSQ, • »-
69, III, 20. nCf. can. 2197. Btrbow, Trac<
10 Cf. can. 33 jo, 3328, 1343, 2314, tat us forii, Appellatiw, n. 166.
*Ie
I , Original from
UNIVERSITY OF WISCONSIN
CANON 274 291
court. Finally, the metropolitan may proceed against
such as offer affronts or insults to his person or suite, or
prevent the exercise of his jurisdiction during the time
of canonical visitation.1'
Nos. 7 and 8 mention appeals, which may, but need not
always, be made from the sentence of the episcopal
court,18 and settlements of such controversies as regard
the personal property and rights of the bishop or his
episcopal revenues, or diocesan property.14
From this enumeration of the rights of a metropolitan
with regard to his suffragans we may conclude, first, that
only in case of negligence directly stated in the law has
the metropolitan a right to interfere in the diocese of a
suffragan. Here the old IB and the new law agree. Sec-
ondly, a metropolitan enjoys no jurisdiction over his suf-
fragans as such, for in all the cases alleged in the
present canon the person of the suffragan is nowhere
mentioned, but there is question merely of administrative
measures or appeals, or the extraordinary case (n. 5) of
canonical visitation, and in this the metropolitan really
acts in the name of the Pope.
Except in the case of a canonical visit, every jurisdic-
tional act is forbidden to the metropolitan in the dioceses
of his suffragans.16 Wherefore the statement of some
older canonists17 that the metropolitan may exercise
jurisdiction over his suffragans, must now be modified,
as the present law warrants no such privilege, unless
when the Holy See permits a metropolitan to exercise it
in connection with a canonical visitation.
lSCc. i. 5. 6°. III. 20; c. 1, 6". 17 Reiffeostuel, I. 10, n. Ill Bar-
V, 9. bosa, Dt Officio a Potestate Epis-
laCan. 1594, f l; c. 11, X, I, 31; copi, P. I, tit. 4, who enumerates
e. 1, 6°. I, 16; c. 7. 6°, V, ti. 38 prerogatives of the arcbbUhops;
14 Can. 1592, I a. cfr. his Summa Dccis. Aposl., a. r.
is C. 1, 6°, I, 8; c 1, 6\ I, 6. " Archie pise opus,"
in Ce. »*., C. o, q. 3.
§le
k ,1,., Original from
UNIVERSITY OF WISCONSIN
'■-.
ECCLESIASTICAL PERSONS
THE PALLIUM
The origin of the pallium is involved in obscurity. It
seems to be an imitation of the u>i*o<j>6pu)v, a band of wool
worn at Mass by Oriental bishops. This ornament was
in vogue also in Gaul and Africa. As a special sign of
distinction the pallium came into general use after the
sixth century. In its modern form it is a circular band,
about two inches wide, worn about the neck, breast and
shoulders, and having two pendants, one hanging down
in front, the other behind. It is set with six black
crosses of silk, one each on the breast and back, one on
each shoulder, and one on each pendant It is worn
over the chasuble and signifies the plenitude of the pas-
toral and episcopal power which an archbishop has re-
ceived from the Pope.18 The pallia are kept in a capula
over the tomb of St Peter, and hence are said to be
" taken from the body of St. Peter," after being blessed
by the Pontiff on the eve of the feast of SS. Peter and
Paul.10
Can. 275
Metropolita obligatione tenetur, intra tres menses a
consecratione vel, si iam consecratus fuerit, a pro-
visione canonica in Consistorio, per se vel per procura-
torem a Romano Pontifice pallium petendi, quod si-
gnifkat potestatem archiepiscopalem.
The metropolitan is obliged, either himself or by proxy,
to ask the Pope for the pallium within three months from
the date of his consecration, or, if he is already conse-
crated, from the time of his canonical promotion in the
consistory.
HCfr. Duchesne, Christian Wor- 19 Benedict XIV, " Rtrum #c
ihip, p. 380 iT; lira mi in the C*th. clesiasiicanm," Aug. ia, 1748.
Encycl., Vol. XI, 437.
ogle
% .J,., Original fro m
UNIVERSITY OF WISCONSIN
■
pi
CANON 276 393
Can. 276
Quare ante pallii impositionem, excluso special! in-
dulto apostolico, ipse illicite poneret actus sive iurisdic-
tionis metropolitanae, sive ordinis episcopalis in qui-
bus, ad normam legum liturgicarum, usus pallii requiri-
tur.
Acts of metropolitan jurisdiction or of the episcopal
order which require the use of the pallium according to
liturgical norms, are illicit if performed before the impo-
sition of the pallium.
Can. 277
Metropolia uti potest pallio intra quamlibet eccle-
siam etiam cxemptam suae provinciae in Missarum
sollemnibus, diebus in Pontincali Romano designatis
aliisque forte sibi concessis; nullatenus vero extra
provinciam, etsi Ordinarii loci consensus acccdat.
The Metropolitan may use the pallium in every church
of his province on the days determined in the Pontificals
Romanum or on others specially granted to him ; but he
may not use it outside his province, even though the local
Ordinary consent.
»
Can. 278
Si Metropolita pallium amittat vel ad aliam sedem
archiepiscopalem transferatur, novo indiget pallio.
If a Metropolitan loses his pallium, or is transferred
to a different archiepiscopal see, he must obtain another
pallium.
.'Ie
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
294 ECCLESIASTICAL PERSONS
Can. 279
Pallium neque commodari potest nequc donari nee
in morte alicui relinqui, sed omnia pallia quae Metro
polita obtinuit, cum eodem sunt sepelienda.
The pallium can neither be lent, nor given away, nor
left to anyone after death, but all pallia received by a
Metropolitan must be buried with him. Archbishops
who are metropolitans, or who hold that title, must de-
mand the pallium instanter, instantius, itistantissime.
The reason for this urgent postulation lies in the signifi-
cance of the pallium as indicative of the plenitude of the
archiepiscopal jurisdiction.20
If an archbishop is personally present in Curia, he must
present himself to the senior Cardinal Deacon, who im-
poses the pallium in the name of the Pontiff. The same
applies to the procurator who requests the pallium for
an archbishop, and who is, moreover, obliged to take an
oath before the same Cardinal Deacon that he will con-
scientiously transmit the sacred ornament to the metro-
politan.21
Since the pallium signifies the plenitude of the pastoral
office, it must be obtained before the metropolitan can
exercise his archiepiscopal functions. Hence he cannot
licitly invest clergymen presented by patrons, but he may
licitly and validly make appointments in his own arch-
diocese; he cannot convoke a provincial council (can.
284), nor licitly perform any act of jurisdiction men-
tioned in can. 274. Besides, before the reception of the
pallium, a metropolitan cannot consecrate altars, or
churches, or bishops, or chrism, or ordain clergymen,
IOC. r, Dist. 100; e 3, X, I, 8. rauli of the oath ji given in "R#-
31 Benedict XIV, M Inter con- mm tceUsiastiearum," Aug. 13,
■picuos," Aug. 29, 1744. The for* 1748; cfr. can. 239, S3.
oogle
v %\^ OrigEnalfrom
UNIVERSITY OF WISCONSIN
CANON 280 295
even though he may have been archbishop of another
diocese."
The pallaium may be worn by an archbishop in all the
churches located within the limits of his province.
Strictly speaking, its use is restricted to the celebration
of the Mass, except de requiem.™ The festival occasions
on which the use of the pallium is permitted are indicated
in the Caeremoniale Episcoporum.** Since the pallium is
something attached to the person, but with definite rela-
tion to a church designated by the Roman Pontiff, it can-
not be loaned to another, or taken to another see, but all
the pallia of an archbishop, if he has obtained several,
are to be buried with him."
precedence
Can. 280
Patriarcha praecedit Primati, Primas Archicpiscopo,
hie Episcopis, salvo praescripto can. 347.
Patriarchs enjoy precedence over primates, primates
over archbishops, and archbishops over bishops, except
in the cases mentioned in can. 347.
The Annuario Pontificio for 1917 enumerates the fol-
lowing Patriarclis, called maiores:
Constantinople: (Latin) residing in Rome;
Alexandria: The Latin residing in Rome; the Coptic
at Hermopolis;
Antioch: The Latin in Rome; the Syrian at Beirut:
the Maronite at Bikorehi on Mount Lebanon ; the Greek
Melchite (Arabic) at Damascus;
23 Pontifical* Rom., Da Pallio; 24 L. I, c. 16, n. 4.
Caeremoniale Epiicop., I, c. 16, n. 26 C. a, X, I, 8; c. 4. X, I, $;
6. Pont. Rom., D* Pallio; Caertmonial*
28 Caertm. Ep., ib. Epixcop., I, 16, n. 6 f.
>Ie
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
296 ECCLESIASTICAL PERSONS
Jerusalem, the Latin, with residence there.
Minor Patriarchs are those of :
Babylon of the Chaldees, at Mossul, who is at the same
time Administrator Apostolic of Acre;
Armenian Cilicia, at Constantinople, Administrator
Apostolic of Ispaham in Armenia;
West Indies, Archbishop of Toledo in Spain (since
I 1540) ;
East Indies, at Goa, since 1886;
Lisbon, since 1716, residence there (under normal cir-
cumstances).
Venice, transferred from Aquileja-Grado since 1541."
2«Cfr. Am. Ecel. Rev., 1918 (Vol. 58), p. 113 ff-
jle
Original from
UNIVERSITY OF WI5C0NSI
CHAPTER VII
T
PLENARY AND PROVINCIAL COUNCILS
c
S
When Christianity had spread and diocesan centres
were erected, the bishops assembled for deliberation and
especially for the uprooting of heresies. This custom
soon became an important factor in the life of the Church.
Synods or councils, as they were called already in Ter-
tullian's l time, were quite frequent in the third and even
more so in the fourth century, and were generally held in
times of a crisis, but also for disciplinary purposes.
Since the middle of the third century they were known by
the name of provincial (exarchal) councils. In Africa,
however, plenary or universal councils, presided over by
the primate of Carthage, were celebrated in the fourth
and fifth centuries. Roman or Papal synods went by
the same name almost to the close of the Middle Ages.1
The Council of Trent 8 ordered provincial councils to be
held every three years for the regulation of morals, the
correction of excesses, and the settling of controversies.
Notwithstanding this enactment, times were so unfavor-
able that more than a century elapsed without a provincial
council being held, with the exception of one at Tarra-
gona in Spain, until Benedict XIII held one at Benevento
in 1693. Since then they became more frequent.*
1 Dt iiiuniu, c. 13. * Colltctio Lacentu, Acta tl Dt-
2Cfr. Kircktnhxikon. a ed, s. v. crtta SS. Condi Rtcentiorum, 1870,
" Concil." Vol. I, Prolegomena, p. 2.
6 Ses*. 24, c. 2 dc ref .
397
>Ie
/ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
298 ECCLESIASTICAL PERSONS
In this country the first provincial council was held at
Baltimore in 1829 and followed by others in 1833, 1837,
1846, 1849. In '852 the first National or Plenary Coun-
cil was convoked by the Archbishop of Baltimore, Mt.
Rev. F. P. Kendrick, in the capacity of Apostolic Dele-
gate of Pius IX. The second followed fourteen years
later, and the last one was held in 1884, under the presi-
dency of Archbishop, now Cardinal, Gibbons of Balti-
more as Apostolic Delegate."
PLENARY COUNCILS
•a
Can. 281
■
Ordinarii plurium provinciarum ecclesiasticarum in
Concilium plenarium convenire possunt, petita tamen
venia a Romano Pontifice, qui suum Legatum designat
ad Concilium convocandum eique praesidendum.
The Ordinaries of several ecclesiastical provinces may
meet in a plenary council after having obtained permis-
sion from the Roman Pontiff, who will designate a Legate
to convoke and preside over the council.
Leo XIII, after having received the petition of South
American bishops, left it to them to choose the place of
meeting, but was highly pleased with their choice of
Rome, where the illustrious prelates met in 1899 and
enacted a number of decrees which received the specific
approval of the Holy See.8
Can. 282
■
§ 1. Concilio plenarxo assistere debent cum suffragio
-
D The acta were published in the • " Quum diuturnum," Dec *s,
Coll. Lacencis, t. Ill, and separately 1898 (<*». Eccl. Rev., Vol. jo,
st Baltimore in 1853. 1868, 1886. 409 f.).
>Ie
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 282 299
deliberative praeter Legatum Apostolicum, Metro-
politae, Episcopi residentiales, qui, sui loco, mittere
possunt Coadiutorem vel Auxiliarem, Apostolici dioe-
cesium Administrators, Abbates vel Praelati nullius,
Vicarii Apostolici, Praefecti Apostolici, Vicarii Capitu-
lares.
§ a. Etiam Episcopi titulares, in territorio degentes,
si a Legato Pontificio, secundum receptas instructiones,
ad Concilium vocentur, adesse debent habentque suf-
fragium deliberativum, nisi in convocatione aliud ex-
presse caveatur.
§ 3. Alii ex utroque clero viri, forte ad Concilium in-
vitati, suffragio non gaudent nisi consultivo.
D
This canon, especially by § 3, excludes the superiors of
religious orders or congregations from a deliberative or
decisive vote; they need not even be invited if the pre-
liminary meeting thinks it unnecessary to call them.
This enactment is surprising ii compared with can. 223,
§ 1, n. 4, which admits the superiors general of exempt
religious and abbots presidents of monastic congregations
to deliberative participation at a general council. The
Third Plenary Council of Baltimore had accorded that
same right to the abbots presidents Wimrner of St. Vin-
cent and Mundwiler of St. Meinrad, and to the superior
general of Holy Cross, Father Sorin.T We are at a loss
to find a solid reason for the exclusion of the aforesaid
superiors from the right of assisting at a plenary council,
the more so since Cardinal Gasparri gives no text for this
enactment. But where there is no right, there is no obli-
gation, although an invitation might be tendered.
1 Acta it Decrsta Cone. Bait. III., 1886, p. LXIII.
oogle
v ,1,, Original from
UNIVERSITY OF WISCONSIN
300 ECCLESIASTICAL PERSONS
provincial councils
Can. 283
In singulis provinces ecclesiasticis celebretur pro-
vinciale Concilium vicesimo saltern quoquc anna
In each province a provincial council should be held at
least once every twenty years.
Can. 284
Metropolita, eoque legitime impedito vel sede archi-
cpiscopali vacantc, Suffraganeus antiquior promotione
ad ecclesiam suttraganeam ;
i.° Locum ad celebrandum Concilium intra provin-
ciae territorium, auditis omnibus qui assistere debent
cum suffragio deliberative, digit; cessantibus tamen
iustis impediments, metropolitana ecclesia ne negliga-
tur;
2.0 Concilium convocat eique praeest.
The metropolitan, or in case he is lawfully prevented
or the archiepiscopal see is vacant, the suffragan who by
reason of promotion to the suffragan see is the senior,
shall select the place for holding the council, after having
received the opinion of all those who are obliged to assist
thereat with a decisive vote. If there is no serious ob-
stacle, the metropolitan church should be chosen. The
metropolitan shall convoke the council and preside over it
The term " auditis " signifies that the metropolitan is
not bound by the opinion or quasi-vote given, but may
choose a place according to his own good pleasure.8
Can. 285
Episcopi qui nulli Metropolitae subiiciuntur, Ab-
iCt can. ios.
Q
§le
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
Q
CANON 286 301
bates vel Praelati nullius, et Archicpiscopi Suffraganeis
carcntes, aliqucm viciniorcm Metropolitan!, nisi forte
iem clegerint, semel pro semper*, praevia Sedis Apo-
stolicae approbation^ eligant, onius Concilio provin-
cial! cum aliia intersint, ct quae ibi ordinata fucrint,
observent et obscrvanda curcnt.
Bishops who are not subject to a metropolitan, abbots or
prelates nullins, and archbishops without suffragans, if
they have not done so already, should once for all and
with the approbation of the Holy See choose the nearest
metropolitan, at whose provincial council they must assist,
and the enactments of which they must observe and
enforce.
a
As to the vicinior, or nearest metropolitan, several deci-
sions • of the Roman Court have denned that the distance
is to be measured from the cathedral or abbey church to
the cathedral of the metropolitan. However, these deci-
sions are rather old, and perhaps antiquated, because there
were no railroad facilities in those days, and hence it will
be advisable to submit the choice to the Holy See. After
the choice has been approved, no change is permitted and
the obligation of assisting at the provincial councils is
strict if no legitimate impediment occurs.
Can. 286
§ 1. Practer Episcopos, Abbatea vel Praelatos nuU
lias et Archiepiscopos de quibus in can. 285, ad Con-
cilium provinciate vocandi sunt et convenire debent
cum voto deliberativo Suftraganei omnes aliique de
quibus in can. 282, § 1.
• S. C. EE. «t RR-, Jan. ao, 1579: coput vicinior;" Santi-Leitner. I, 11,
1 C. C Aug. a, 1596; cf. Barbosa, n. 36; Trid.f Sea. 34, c. 2 de ref.
Summa Deris. Apcst., $. v. " Epis-
jle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
302 ECCLESIASTICAL PERSONS
§ 2. Episcopi titulares qui in provincia degunt, pos-
sunt a praeside, cum consensu maioris partis illorum
qui cum voto deliberative* intersunt, convocari, et si
convocentur, votum habent deliberativum, nisi aliud in
convocatione caveatur.
§ 3. Capitula cathedralia aut Consultores dioecesani
cuiusvis dioecesis cuius Ordinarius ad normam § t
vocari debet, invitentur ad Concilium et invitati mit-
tant duos ex capitularibus aut Consultoribus collegiali-
ter designates, qui tamen obtinent votum tantum con-
sultivum.
§ 4. Maicres quoque religionum clericalium exempta-
rum ac Congregationum monasticarum Superiores, qui
in provincia resideant, invitandi sunt, debentque in-
vitati adesse aut impedimentum, quo detinentur, Con
cilio notum facere; sed his, quemadmodum aliis ex
utroquc clcro viris ad Concilium forte vocatis, votum
fuerit, habet votum dumtaxat consultivum.
Two diocesan consultors, therefore, must attend the
provincial council and the superiores maiores of exempt
clerical orders and monastic congregations who reside in
the province must also be invited, and upon being invited,
must attend or give notice of the reason for their absence ;
but all these and other ecclesiastics, secular and regular,
if invited, have only an advisory vote.
Innocent III told the archbishop of Sens, who wished
to exclude the cathedral chapters from the provincial
council, that their deputies were to be admitted to the
conciliar discussions (ad tractatum), especially with re-
gard to matters touching upon the chapters.10 This text
would seem to indicate that these delegates ought to have
a deliberative vote. But the new Code grants only a
10 c. io, x, nif io.
"-.
§le
Original from
UNIVERSITY OF WISCONSIN
CANON 287 303
consultive vote, apparently for the reason that only the
bishops are judges and legislators in the true sense, —
which reason is perfectly correct, inasfar as even these
judges cannot go against the general law.
The deputies of the chapters and diocesan consultors
must be appointed colicgialiter, either by secret ballot or
open vote by a legitimate quorum present in one place at
the same time.
At provincial councils the superiors of religious orders
are allowed to be present, nay, they must be invited, and
this invitation, of course, creates the obligation of at-
tending.
conciliary proceedings
Can. 287
■
§ 1. Qui Concilio plenario aut provinciali interesse
debent cum voto deliberative si iusto impedimento de-
tineantur, mittant procuratorem et impedimentum
probent.
§ 2. Procurator, si fucrit unus ex Patribus quibus est
votum deliberativum, duplici voto non gaudet ; si non
fuerit, habet votum dumtaxat consultivum.
Those obliged to attend either a plenary or provincial
council and who have a deliberative vote, shall, if detained,
send a procurator and prove that they are legitimately
absent. If the procurator is one of the "Fathers" of
the Council, he enjoys but one vote; if he is not a
" Father," he has a consultive vote only.
Can. 288
In Concilio sive plenario sive provinciali praeses,
>Ie
k ,1,., Original from
UNIVERSITY OF WISCONSIN
304 ECCLESIASTICAL PERSONS
habito, si de provincial agatur, Patrum consensu, de-
tcrminat ordincm scrvandum in quaestionibus exami-
nandis ct ipsum Concilium aperit, transfer*, prorogat,
absolvit.
The president of either a plenary or provincial council
(if the latter, with the consent of the Fathers) shall es-
tablish the order in which questions are to be examined,
shall open, transfer, prorogue, and close the meetings.
Can. 289
Concilio plenario vel provincial! inchoato, nemini
eorum qui interesse debent, licet discedere, nisi iustam
ob causam a Legato Pontificio vcl a Concilii piovin-
cialis Patribus probatam.
Those who are obliged to attend a plenary or provincial
council are not allowed to depart, once the council has
been opened, unless they have a reason approved by the
Apostolic Legate or the Fathers of the Council.
Notice the difference between those who are obliged to
attend, because these may enjoy only an advisory vote,
and the Fathers of the council, who are entitled to a de-
liberative or decisive vote.
2
Can. 290
Patres in Concilio plenario vel provinciali congregati
studiose inquirant ac decernant quae ad fidei incremen-
tum, ad moderandos mores, ad corrigendos abusus, ad
controversias componendas, ad imam eandemque dis-
ciplinam servandam vel inducendam, opportune fore
pro suo cuiusque territorio videantur.
The Fathers of a plenary or provincial council shall
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 290 305
earnestly examine and decree upon all matters touching
the increase of faith, the control of morals, the correction
of abuses, the settling of controversies, the preservation
and introduction of uniform discipline, and whatever may
be opportune for their own territory. This canon states,
in rough outline, what is to be submitted to the delibera-
tion and consultation of the Fathers, and is chiefly taken
from the IVth Lateran Council and that of Trent." Note
that only " increase of faith " is mentioned, not a defini-
tion of faith, because infallibility is not the attribute of a
plenary or provincial council, which may, however, de-
nounce heresies, draw attention to wrong tendencies, and
warn the faithful against them. But the final definition
or qualification must be left to the supreme tribunal.
By the phrase u settling controversies " is not meant a
dogmatic or theological settlement, as long as Rome has
not spoken, but questions of discipline, education of clergy
and faithful in seminaries and schools, the administration
of the Sacraments, parish boundaries, etc The matter is
made much easier by the new Code, which states the uni-
versal law, modifications of which, either restrictive or
extensive, are reserved to the Holy See. Where the Code
is not explicit enough, a council must apply to Rome (S.
C. Concilii).
Finally, though the canon says nothing about it, the
tnode of proceeding at a council is by vote. The vote may
be secret or open. This point is to be settled in a pre-
liminary session. The presiding officer has no pre-
ponderating voice, even where there is a tie,1' unless the
papal legate to a plenary council has received special in-
structions from the Holy See.
11 C. as. X, V. 1; S>m. 34, 0. a l a Smith, Elements. I. n. ft,
de rcf.
.'Ie
£ " ^ ^ ,l„ Original from
UNIVERSITY OF WISCONSIN
-
■
pi
306 ECCLESIASTICAL PERSONS
Can. 291
§ 1. Absoluto Concilio plenario aut provincial!,
praeses acta et decreta omnia ad Sanctam Sedem trans-
mittal ncc eadem antea promulgentur, quam a Sacra
Congregatione Concilii expensa ct recognita fuerint;
ipsimet autem Concilii Patres designent et modum
promulgationis decretorum et tempus quo decreta pro-
mulgata obligare incipiant
§ 2. Decreta Concilii plenarii et provincialis promul-
gata obligant in suo cuiusque territorio universo, nee
Ordinarii locorum ab iisdem dispensare possunt, nisi
in casibus particularibus et iusta de causa.
After the close of a plenary or provincial council the
president of the same shall send all the acts and decrees
to the Holy See, and they must not be promulgated until
the S. C of the Council has examined and approved them.
The mode of promulgating the decrees as well as the date
of their going into effect is left to the Fathers of the
council.
The decrees of a plenary or provincial council, after
being duly promulgated, oblige throughout the whole
territory for which they were made, and the Ordinaries
of the various dioceses cannot dispense from them except
in individual cases and for a just reason.
The efficacy of conciliar decrees is here determined, first
conditionally, and then as to extent. The condition is
that the decrees are approved by the highest authority,
j. e., the Holy See, through the S. C. of the Council. This
S. Congregation first obtains the opinion of one consultor,
and then that of all the consultors, or at least five of
them. Then the S. C. deliberates in pleno congressu and
instructs the agent of the province to have the decrees
§le
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 291 307
printed.18 The approval is given either in forma specifica
or in forma communi. The former is generally expressed
by the verbal insertion of the acts and decrees in the docu-
ment of approbation, or else the printed decrees contain
the formula " ex certa scientia, ex plenitudine potestatis
approbamus!' etc. The acts and decrees of the Latin-
American Plenary Council held in Rome 1899 were ap-
proved by the Holy See with the clause, " quibuscunque
minime obstantibus" and it was the general assumption
that they were approved in forma specifica.14 The same
cannot be said concerning our American plenary councils,
for they were, as is commonly held,18 approved in forma
communi, i. e.t by simple recognition. It appears that
the Code refers only to recognition, without determining
the nature of the approbation given. But the Code
also supposes that the acts and decrees of a council obtain
legal force by mere recognition as soon as promul-
gated, i. e., from the date of promulgation fixed by the
Fathers of the council. In view of this fact the former
distinction between approbation in forma specifica and
approbation in forma communi appears to be of little
practical value. This deduction is corroborated by an
answer of the Secretary of State to the Archbishop of St.
Louis, dated Sept 30, 1896, which declares that the de-
crees of a plenary council are binding even if recognized
only in forma communi and not inserted in the diocesan
statutes.10
As to the interpretation of the decrees of plenary and
provincial councils the general rules laid down in our
Code " must be observed. These grant the right of inter-
18 " Sapicnti consUio" (A. Ap. 10 Smith, L c, n. 72.
S., I, 95). 10 Am, Eccl. Rev. 1896 (Vol. 15),
14 Anaiccta Ecclesiastic*, 1900 p. 545.
(VIII), p. 145 *- 1T Cin. <7-*0-
'■-.
jle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
308 ECCLESIASTICAL PERSONS
prctation to the legislators. However, the case here is a
peculiar one, since the decrees have no obligatory force
unless approved by the Roman Congregation. We think
it will be safe to adopt the rule laid down by the Fathers
of the Latin-American Plenary Council, vis.: that the
bishops have power to settle doubts arising from the word-
ing of the text, as long as their interpretation does not
affect the substance and juridical value of the same. In
the latter case, the doubts should be submitted to the
Congregation of Extraordinary Affairs.18 For our coun-
try the authentic interpretation of the decrees of plenary
and provincial councils belongs to the S. Congregation of
the Council.
With regard to dispensations, the Code is more explicit,
permitting the Ordinaries to dispense from or relax the
decrees in individual cases for a just reason. The reason
why this power of dispensation is limited and why the
limitation affects the metropolitans as well as their suffra-
gans — though they are themselves the legislators — lies
in the fact that their decrees have been elevated into a
higher sphere by a superior, not only through papal in-
terposition, but also by a collective act of the legislators.1*
Particular cases means not such as happen daily and
ordinarily (commimiter contingentes), but exceptions, to
single persons and parishes.
Can. 292
§ 1. Nisi aliter pro peculiaribus locis a Sede Apo-
stolica provisum fuerit, Metropolita, eoque deficiente,
antiquior e Suffraganeis ad normam can. 284, curet ut
ia Archiv fir K.-R., iooi (Vol. 15. nn. 4S.1 Kenrick, Theohgia
81). p. 54 f- lioratis, 1860, I, 118 (tract. IV, c
lVSurcc. D* Ltgibus, 1. VI, o. 6, n. 49).
ibyC jle
I , Original front
UNIVERSITY OF WISCONSIN
CANON 292 309
Ordinarii locorum, saltern quinto quoque anno, stato
tempore apud Metropolitam aliumve Episcopum com-
provincialem conveniant, ut, collatis consiliis, videant
quaenam in dioecesibus agenda sint ut bonum re-
ligionis promoveatur, eaque praeparent de quibus in
futuro Concilio provinciali erit agendum.
§ 2. Etiam Episcopi aliique de quibus in can. 285, una
cum aliis Ordinariis convocari et convenire debent
§ 3. Iidem Ordinarii congregati sedem proximi con-
ventus designent
Unless otherwise provided for by the Apostolic See, the
metropolitan, or if he fails to act, the senior suffragan
bishop (according to can. 284) should see to it that the
Ordinaries of the dioceses meet every five years at a
stated time, at the metropolitan's or a fellow-bishop's
residence, in order to deliberate about the affairs of their
dioceses and thus foster the good of religion, as well as
to prepare the questions to be treated in a future provin-
cial council.
The bishops and others mentioned in can. 285, together
with other Ordinaries, should be called and must attend a
meeting to appoint the place for the next meeting.
All these regulations are intended to secure a united
and uniform proceeding as well as to foster charity.
oogle
k ,1,., Originalfrom
UNIVERSITY OF WISCONSIN
Q
CHAPTER VIII
VICARS AND PREFECTS APOSTOLIC
There is a material difference between the vicars Apos-
tolic formerly appointed for, e. g., Thessalonica or Aries,
and the vicars Apostolic now appointed for missionary
countries. The former were quasi legati nati,1 whereas
the vicars of whom the present canon treats are really
vicars of the Apostolic See with episcopal jurisdiction,
appointed for regions where a full diocesan organization
cannot as yet be established or restored. Thus a vicar
Apostolic was appointed for Brunswick and Luneburg,
in 1607, under the pontificate of Alexander VII (1655-
67), and one for Malabar, where Nestorian disturbances
made such a measure imperative. To-day there are
vicars or prefects Apostolic in all the territories subject
to the Propaganda.2 In England a vicar Apostolic
(Blackwell) was appointed in 1598, and vicars Apostolic
continued to govern the English Church until 1850, when
the hierarchy was reestablished. Alaska is now the sole
vicariate in our country.
-
■
Can. 293
§ 1. Territoria quae crecta non sunt in dioeceses re-
guntur per Vicarios aut Praefectos Apostolicos; qui
omnes ab una Apostolica Sede nominantur.
§ a. Vicarius et Praefectus Apostolicus possessionem
<
1 Smith, /. c, I, n. 524. 2 Benedict XIV, De Syn, Dio*e.t
IT, io, jff.
310
( %r\r*nl*> Original from
jr^OOglL UNIVERSITY OF WISCONSIN
CANON 293 311
sui territorii capiunt, ille litteras apostolicas, hie de-
cretum seu patentes litteras Sacrae Congregationis de
Prop. Fide per se vel per procuratorem ostendentes
ei qui territorium regit ad normam can. 309.
Can. 294
§ 1. Vicarii et Praefecti Apostolici iisdem mribus et
facultatibus in suo territorio gaudent, quae in propriis
dioecesibus competunt Episcopis residentialibus, nisi
quid Apostolica Sedes reservaverit.
§ 2. Etiam ii qui charactere episcopali carent, pos-
sum, intra sui territorii fines ac perdurante rnunere,
omnes benedictiones Episcopis reservatas, una ponti-
ficali excepta, impertiri, calices, patenas et altaria
portatilia cum sacris oleis ab Episcopo benedictis con-
secrare, indulgentias quinquaginta dierum concedere,
confirmationem, primam tonsuram et ordines minores
conferre ad normain can. 782, § 3, 957, § 2.
Apostolic vicars and prefects enjoy the same rights
and faculties in their respective territories as residential
bishops in their dioceses, unless the Apostolic See makes
reserves. Even though destitute of the episcopal charac-
ter they may, within the limits of their own territory, and
during the time of their office, impart the blessings re-
served to bishops, except the pontifical blessing proper,
may consecrate chalices, patens, and portable altars with
oil blessed by a bishop, grant indulgences of fifty days,
and confer the tonsure and minor orders according to can.
782, § 3. 957. § 2.
Blessings reserved to bishops are: the blessing of
abbots, the dedication and consecration of churches, the
blessing and laying of corner-stones, the blessing and
jle
v ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
312 ECCLESIASTICAL PERSONS
reconciliation of cemeteries.8 The consecration of fixed
altars is not expressly mentioned, and therefore probably
not included in these faculties.
All these faculties, with the exception of such as re-
quire the episcopal character or cannot be exercised with-
out the use of holy oils, can be communicated to simple
priests.*
■
■"■
Can. 295
§ i. Vicarii ct Praefecti Apostolici ab omnibus mis-
sionariis, etiam religiosis, possunt ac debent exigere ut
suas patentes seu alias quasvis eorum missionis, desti-
nationis, constitutionis ac deputationis litteras exhi-
beant, easquc cxhibere recusantibus excrcitium cuius-
vis ministerii ecclesiastici prohibcrc.
§2. Omnes missionarii, etiam regulares, licentiam
sacri ministerii exercendi petant a Vicariis et Prae-
fectis Apostolicis, qui tamen earn ne denegent, nisi
singulis et gravem ob causam.
Apostolic vicars and prefects may and must demand of
all missionaries, even religious, that they show their cre-
dentials or other letters explaining their mission, destiny,
appointment, and deputation, and in case of refusal must
forbid them the exercise of any ministerial functions.
All missionaries, including (exempt) regulars, must ask
permission of the vicars or prefects Apostolic to exercise
the sacred ministry. This permission should not be de-
nied except in single cases and for weighty reasons.
This is but a repetition of former injunctions.5
8 Van der Slappen, Sacra Litur- B Clement IX, " Speculatores,"
gia, IV, p. 347. Sept. 13, 1669; Benedict XIV,
* Benedict XIV, " Apostclicum Const, cit.
ninistcnuni." May 30, 1753, S 4-
jle
£ " -. v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 296 313
Can. 296
o
§ i. Etiam missionarii rcgulares subiiciuntiu Vicarii
ct Pracfecti Apostolici iurisdictioni, visitationi ct cor-
rection! in iis quae pertinent ad missionum regimen,
curam animarum, Sacramentorum administrationem,
scholarum directionem, oblationes intuitu missionis
factas, implementum piarum voluntatum in favorem
eiusdem missionis.
§ 2. Quamvis Vicariis et Praefectis Apostolicis nullo
modo liceat, praeter casus in iure praevisos, se in dis-
ciplinam religiosam ingerere quae a Superiore religioso
depended si tamen circa ea, de quibus in superiore
paragraphs confiictus oriatur inter mandatum Vicarii
aut Pracfecti Apostolici et mandatum Superioris, prius
praevalere debet, salvo iure recursus in devolutivo ad
Sanctam Sedem et salvis peculiaribus statutis a Sede
Apostolica probatis.
All missionaries belonging to (exempt) regular orders
are subject to the jurisdiction, visitation, and correction
of the vicar or prefect Apostolic in matters pertaining to
the government of the mission, the care of souls, the ad-
ministration of the Sacraments, the direction of schools,
the gifts of the faithful made for the mission, and the
execution of pious legacies made in behalf of the same.
Although the vicar or prefect Apostolic has no right,
except in cases provided by law, to interfere with the re-
ligious discipline, which depends on the religious superior,
yet in the matters mentioned in § 1 of this canon, should
a controversy arise between a command of the vicar or
prefect and of the superior, the former must prevail,
without prejudice to the right of recourse in devolutivo
to the Holy See and to special statutes approved by the
latter.
Q
►ogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
314 ECCLESIASTICAL PERSONS
That regulars in charge of souls should be subject to the
jurisdiction of the Ordinary in all matters pertaining to
the exercise of this office, was established by the Council
of Trent.* Benedict XIV ordained furthermore that no
appeal or injunction should delay or invalidate the exe-
cution of these decrees and their consequences as applied
by the Ordinaries,7 and logically extended the law to the
regular missionaries.8 New experiences and questions
elicted the remarkable constitution of Leo XIII,
"Romanes Pontifices" of May 8, i88r, which endeavored
to settle some disputes between Ordinaries and regulars
employed in parish or mission work. The rules laid down
in that Constitution have entered almost entirely into the
new Code, as may be seen in the section on religious.
Here we will only add a note on schools. Leo XIII has
subjected all elementary (parish) schools conducted by
religious, exempt as well as non-exempt, to the direction
and visitation of the bishops, but in the same Constitution
states that other schools, colleges, etc., are not subject to
the Ordinary, though they require his permission for
their erection.9
As to gifts made for the missions, the same Constitu-
tion ordains that all donations made for missionary pur-
poses must be used for that purpose. Broadly speaking,
Sunday and house collections, pew rent and stole fees are
mission donations and must be employed as such and ac-
counted for to the vicar or prefect Apostolic.
What in dcvolutivo means has already been explained.
Religious orders (the Society of Jesus, for instance)
Q
t Sess. 25, c 11 de regg. fl Can. 1381, however, gives the
7 " Ad nil itantis," March 30, Ordinary the right to inspect the
1742, 6 8. schools — except house schools —
8 " Apostolicum ministerium," of regulars as to their religious and
May 30, 1753, 9 la. moral training.
* I nnill^ Original from
,00cVC UNIVERSITY OF WISCONSIN
N
■
■"-
CANON 297 3i 5
which have statutes concerning their missionaries ap-
proved by the Holy See, are entitled to have these statutes
respected by vicars or prefects Apostolic
Can. 297
Deficientibus e clcro saeculari sacerdotibus, Vicarii
et Pracfccti Apostolici possunt, audito eorum Su-
periors, cogere religiosos, etiam exemptos, vicariatui
vel praefecturae addictos, ad animarum curam exercen-
dam, salvis pariter peculiaribus statutis a Sede Apo-
stolica probatis.
Where there is an insufficient number of secular priests,
the vicar or prefect may, upon having heard their superior,
compel religious, even those belonging to exempt orders,
who are attached to the vicariate or prefecture, to per-
form pastoral work, with due regard, however, to their
peculiar statutes approved by the Apostolic See, as stated
in " Speculatores" of Clement IX, Sept. 13, 1669.
■
Can. 298
Si qua dissidia in iis quae ad curam animarum perti-
nent, sive inter singulos missionaries, sive inter diver-
sas religiones, sive inter missionaries et alios quoslibet
oriri contigerit, ea quamprimum componere curent
Vicarii ac Pracfecti Apostolici, qui huiusmodi quae-
stiones, ubi opus fuerit, dirimant, integro tamen iure
recursus ad Apostolicam Sedem, qui decreti effectum
non suspendit.
If any controversy should arise about matters pertain-
ing to the care of souls between individual missionaries,
or different religious orders, or between missionaries and
I Original from
jr^OOglL UNIVERSITY OF WISCONSIN
■
316 ECCLESIASTICAL PERSONS
others, let the vicars or prefects settle them as quickly as
possible. The right of recourse in devolutive) to the
Apostolic See, however, remains untouched.
That such controversies may arise, the incidents re-
corded in several constitutions of Benedict XIV amply
prove. This Pontiff had to settle the somewhat heated
dissensions between the Dominicans and the Jesuits about
Chinese rites, and solve doubts about various customs re-
garding the administration of baptism and nuptial cere-
monies.10
Can. 299
Vicarii Apostolici obligatione tencntur Sacra Limina
Beatorum Apostolorum Petri et Pauli visitandi eadem
prorsus lege, qua Episcopi residentiales ad normam
can. 341 ; cui tamen muneri, si quid graviter obstet ne
per se ipsi illud expleant, satisfacere possunt per pro-
curatorern etiam in Urbe degentem.
Vicars Apostolic are, like residential bishops, bound
to make the visitatio ad limina (or tombs) of SS. Peter
and Paul. If a serious obstacle prevents them from per-
forming this duty, they may send a procurator, or com-
mission some one living in the Eternal City. An explana-
tion of this follows under can. 341.
Can. 300
§ 1. Ad normam can. 340, Vicarii ac Praefecti
Apostolici tenentur obligatione Sedi Apostolicae cx-
hibendi plenam accuratamque relationem de suo quis-
que pastorali officio, deque omnibus quaecunque ad
a
c
10 " Ex quo singulari," July if, i744» "Omnium solicitudinum,"
1743; "Redditae nobis," Dec 19, Sept. IS, 1744.
od by GoOgle
s -l] ^ Original fro m
UNIVERSITY OF WISCONSIN
p
CANON 301 317
statum vicariatus vel praefecturae, ad missionaries, ad
religiosos, ad populi disciplinam, ad scholarum frequen-
tiam, ad fidelium denique ipsorum curae commissorum
salutem qua vis ratione pertineant ; quae relatio scripta
esse debet et subscripta turn ab ipso Vicario aut Prae-
fecto turn ab uno saltern ex consiliariis de quibus in
can. 30a.
§ 2. Imo etiam sub cuiusque anni exitum ad Sanctam
Sedem mittant elenchum seu numerum conversorum,
baptizatorum annuaeque Sacramentorum administra-
tionis una cum aliis notatu dignioribus.
As prescribed in can. 340, Apostolic vicars and pre-
fects are obliged to send each year a full and accurate
report of their pastoral office and everything that touches
the state of their vicariate or prefecture, or the mission-
aries, the religious, the discipline of the people, the fre-
quenting of schools, the welfare of the faithful committed
to their care. This report must be made in writing,
signed by the vicar or prefect and by at least one of his
consultors (see can. 302). Each vicar and prefect shall,
moreover, at the end of each year, send to the Holy See a
report on the number of converts, baptisms, and the an-
nual administration of the Sacraments, together with
other noteworthy items.
Can. 301
§ 1. In regione sibi commissa commorentur, a qua
sine gravi et urgenti causa per notabile tempus iis
abesse ne liceat, inconsulta Sede Apostolica.
§ a. Regionem sibi concreditam, quandocumque sit
opus, debent ipsi per se vel, si legitime irnpediti f uerint,
per ahum visitare eaque omnia in visitatione expendere,
ogle
( * ^ -. i\,* Original from
UNIVERSITY OF WISCONSIN
318 ECCLESIASTICAL PERSONS
quae ad fidcm, bonos mores, Sacramentorum admini-
strationem, praedicationem verbi Dei, festorum obser-
vantiam, cultum divinum, iuventutis institutionem, di-
sciplinam ecclesiasticam referuntur.
v-
"-'
Apostolic vicars and prefects must reside in the terri-
tory assigned to them and are not allowed to be absent
therefrom for any considerable length of time without a
weighty and urgent reason and without having consulted
the Apostolic See.
Whenever necessary, they must visit their district either
themselves or, if impeded, send another, and at this visita-
tion take due measures respecting the faith, good morals,
the administration of the Sacraments, preaching, the ob-
servance of feasts, divine worship, the education of youth,
and ecclesiastical discipline.
These two paragraphs enjoin residence and diocesan
•visitation; that a wide margin is left as to place and
time is but natural in missionary countries. Due regard
must necessarily be taken of distance and transportation
facilities. Weighty and urgent reasons may arise at any
moment and cannot always be foreseen.
Can. 302
D
"■
Constituant Consilium ex tribus saltern antiquioribus
et prudentioribus missionariis, quorum sententiam,
saltern per epistolary audiant in gravioribus et diffi-
cilioribus negotiis.
They shall appoint a council consisting of at least three
of their older and more experienced missionaries, whose
opinion they shall hear, at least by letter, in more im-
portant and difficult matters.
jle
Y ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-
CANON 303 319
Can. 303
Prout siverit opportunitas, missionaries saltern prae-
cipuos turn religiosos turn saeculares proprii territorii
congregent scmel saltern in anno, ut possint ex singu-
lorum experientia et consilio deducere quae sint ordi-
nanda perfectius.
As far as circumstances permit, they shall also convoke
the principal missionaries, religious as well as secular,
once a year, in order to learn from their expenence and
advice what may be more perfectly arranged.
■
Can. 304
§ i. Legibus quae de archivo constituendo Episcopis
praescribuntur, etiam Vicarii ac Praefecti Apostolici,
habita locorum personarumque ratione, aeque tenentur.
§ 2. Parker quae de Conciliis plenariis et provin-
cialibus can. 281-291 praescribuntur, applicari debent,
congrua congruis referendo, Conciliis plenariis vel rc-
gionalibus et provincialibus in regionibus Sacrae Con-
gregationi de Prop. Fide subiectis; quae de Synodo
dioecesana can. 356-362, Synodo vicariatus apostolici;
sed nullum est praefinitum tempus pro Concilii provin-
cialis et Synodi celebratione, et canones Conciliorum,
antequam promulgentur, recognosci debent a Sacra
Congregatione de Prop. Fide.
o
Vicars and prefects, like bishops, but with due consider-
ation of persons and places, are obliged to keep archives
for the documents pertaining to their districts. Simi-
larly, but also in a manner proportionate to circumstances,
the prescriptions concerning plenary and provincial coun-
cils (can. 281-291) must be applied to the provinces sub-
oogle
k ,|rt Original from
UNIVERSITY OF WISCONSIN
320 ECCLESIASTICAL PERSONS
St
jcct to the Propaganda; also enactments regarding dio-
cesan synods (can. 356-362). However, no definite time
is fixed for the celebration of either provincial councils
or diocesan synods, and the canons of both must, before
promulgation, be recognized by the Propaganda. Here
it is permissible to doubt whether the religious superiors
are to be excluded from participation in a plenary council.
■
Can. 305
Studiosissime curent, onerata graviter eorum con-
scientia, ut ex christianis indigents seu incolis suae re-
gionis probati clerici rite instituantur ac sacerdotio
initientur.
They are under strict obligation to see to it that worthy
Christian natives or inhabitants of their province are
properly trained and raised to the priesthood. This most
Apostolic injunction has been insisted upon in various
Apostolic constitutions and inculcated again and again by
the S. C. Prop. Fide. Thus, on Nov. 23, 1845, the latter
enjoined that natives should be trained and employed, not
only in inferior mission work, such as catechizing, but
also as missionaries, who in course of time might become
pastors of souls and even vicars or prefects Apostolic.
The contrary practice was condemned as opposed to the
intentions of the Holy See and out of keeping with the
spirit of the sacred ministry.
Can. 306
Missae sacrificium pro populis sibi cornmissis appli-
care debent, saltern in sollemnitatibus Nativitatis
Domini, Epiphaniae, Paschatis, Ascensionis, Pente-
cost.es, sanctissimi Corporis Christi, Imxnaculatac Con-
, ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
>gle
■
pi
■"■
CANON 307 321
ceptionis et Assumptions Beatae Mariae Virginis,
Sancti Ioseph eius sponsi, Sanctorum Apostolorum Pe-
tri et Pauli, Omnium Sanctorum, servato praescripto
can- 339i §§ 2 seqq.
They must apply the holy sacrifice of the Mass for the
people entrusted to them at least on the feasts of Christ-
mas, Epiphany, Easter, Ascension, Pentecost, Corpus
Christi, the Immaculate Conception, the Assumption of
the B. V. Mary, St Joseph, SS. Peter and Paul, and All
Saints, with due regard to the rules laid down in can. 339,
§2ff.
Can. 307
§ 1. Ipsis non licet, inconsulta Sede Apostolica, con-
cedexe missionariis ab ea missis veniam in perpetuum
deserendi vicariatum aut praefecturam, vel alio trans-
eundi, nee eos quoquo modo expellere.
§2. In casu autem publici scandali possunt ipsi,
audito suo Consilio, et si agatur de religiosis, prae-
monito, quantum fieri potest, Superiore, missionarium
8tatim removcre, facta tamen illico certiore Apostolica
Sede.
They are not allowed, without consulting the Apostolic
See, to grant to the missionaries sent out by the same
(Apostolic See) perpetual leave of absence from their
vicariate or prefecture, or permission to go elsewhere, or
to expel them in any way.
In case a missionary has given public scandal, however,
they may, after having heard their counsellors, and, if
the culprit is a religious, after serving notice, when pos-
sible, upon his superior, remove him at once and then
notify the Apostolic See as soon as possible.11
U Clement IX, " Speculatorei/'Sept. 13, 1669; Leo XIII, "Ad
I Original from
lOOglC UNIVERSITY OF WISCONSIN
"■
322 ECCLESIASTICAL PERSONS
Can. 308
Vicariis et Praefectis, charactcre cpiscopali auctis,
privilegia honorifica competunt, quae ius concedit
Episcopis titularibus; si autem charactere cpiscopali
careant, habent tantum, durante raunere et in proprio
territories insignia et privilegia Protonotariorum apo-
stolicorum de numcro participantium.
Vicars and prefects, if they have the episcopal charac-
ter, enjoy the same prerogatives of honor which the law
grants to titular bishops; if they are not consecrated
bishops, they are entitled, during their tenure of office and
in their own territory only, to the insignia and privileges
of prothonotaries Apostolic de numero participantium.
As titular bishops, vicars and prefects rank after resi-
dential bishops. Their place at councils is expressly de-
fined in the Code.18
As to the protonotarii apostolici de numero participan-
tium, Pius X {"Inter tnultiplices," Feb. 25, 1905) regu-
lated their dress, which is that of regular prelates, with the
right of wearing a ring and the faculty of pontificating
outside of the Eternal City, but only with the faldistorium
(faldstool) and without the seventh candle. Nor are they
allowed to bless the people when entering the church.
They say not " Pax vobis," but " Dominus vobiscum."
They wear the pectoral cross only when they pontificate.
Their mitre is not the pretiosa (studded with gems), but
of gold cloth or silk, and their skull-cap of black silk.
They always need the consent of the Ordinary if they
wish to celebrate pontifical High Mass.13
extremu Orientis." June 24. 1893: 18 Can. 348 f.
Instructio S. C. Prop. Fide in 13 Cf. Am. Eccl. Rev., 1905 (Vol.
Collectio Lacensis, VI, 663 ff. 33), p. 6ia ff; Vol. 34, p. 74 f.
>Ie
v ,|rt Original from
UNIVERSITY OF WISCONSIN
■
CANON 309 323
Can. 309
§ i. Vicarii ct Pracfecti, ubi pzimum in tcrritorium
suum advenerint, dcputent ex uno vcl altcro clcro Pro-
vicarium vel Pro-praefcctum idoncum, nisi Coadiutor
cum futura successione a Sancta Sedc datus fueiit.
§ 2. Pro-vicarius aut Pro-praefectus nullam habet,
vivcnte Vicario aut Praefecto, potestatem, nisi quae
fuerit ab eodem sibi commissa ; sed defkiente Vicario
aut Praefecto, vel eorum iurisdictione impedita ad
noimam can. 429, § 1, to turn debet regimen assumere
et in hoc munere permanere, donee a Sancta Sede aliter
fuerit pro visum.
§ 3. Pari modo Pro-vicarius aut Pro-praefectus, qui
titular! successerit, statim deputet ecclesiasticum
virum, qui sibi, ut supra, in munere succedat.
§ 4. Si forte contingat ut nemo sive a titulari sive a
pro-titulari uti administrator fuerit designates, tunc
senior in vicariatu vel praefectura, is, nempe, qui sit
praesens in territorio et suas destinaticnis litteras in
eodem prius exhibuerit, censetur delegatus a Sancta
Sede ut regimen assumat, et inter plures aeque seniores
antiquior sacerdotio.
Vicars and prefects shall, immediately upon entering
their territory, appoint a fit clergyman as pro-vicar or pro-
prefect, unless the Holy See has already assigned a co-
adjutor with the right of succession.
The pro-vicar or pro-prefect has no power during the
lifetime of the vicar or prefect, except in so far as the
latter has committed it to him; but in case the vicar or
prefect ceases to officiate, or if his jurisdiction is impeded,
according to can. 429, § 1, the pro-vicar or pro-prefect
assumes the whole government and administers it until
the Holy See shall provide otherwise.
..-.
-»,,!, Original from
• OOyit UNIVERSITY OF WISCONSIN
324 ECCLESIASTICAL PERSONS
A pro-vicar or pro-prefect who has succeeded the vicar
or prefect proper, shall immediately appoint an ecclesiastic
to succeed him.
Should the appointment of an administrator have been
omitted either by the vicar or the pro-vicar, the prefect
or the pro-prefect, then the senior of the vicariate or pre-
fecture, i. e.t the priest who is present in the territory and
has first shown the papers of his missionary appointment,
must be looked upon as delegated by the Holy See to
assume the reins, or if there are several of equal seniority,
the one who has been longest in the priesthood.
Benedict XIV provided that where no coadjutor with
the right to succession had been appointed, the vicar Apos-
tolic should name a pro-vicar or quasi vicar-general, who
in case of the demise of the vicar should immediately suc-
ceed him.14 In another Constitution 1B he limited the ap-
pointment of a vicar-general to territories in which there
were no chapters or consultors who would be entitled to
choose a vicar-capitular. But he also modified the requi-
sites (doctor title) for the office of vicar, demanding only
that he be " habUis et idoneus." Our canon modifies this
law in so far as not only the vicars Apostolic but also the
prefects Apostolic are instructed to appoint pro-prefects,
in order to obviate any uncertainty or confusion regard-
ing the government of the territory. The canon makes
no distinction between territories with chapters or con-
a
cultors and such as have none of these, but merely
enjoins that a pro-vicar or pro-prefect be appointed im-
mediately upon entering his office, or rather his district.
The power of these pro-vicars and pro-prefects is sus-
pended until the vicars and prefects go out of office, just
as Benedict XIV had ordered.
i» " Ex ■ublimi," Jan. .:6, 1753- i*mQumb ex rablimi," Aug. 8,
»755.
jle
Y ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
CANON 310 325
Can. 310
§ 1. Ad quos vicariatus aut praefecturae cura dc-
venerit ad normam can. 309, ii dcbent quamprimum
certiorem facere Apostolicam Sedem.
§2. Interim uti possunt omnibus facultatibus sive
ordinariis ad normam can. 294, sive delegatis, quibus
Vicarius vel Praef ectus pollebat, nisi commissae fuerint
ob industriam personae.
Those who rule a vicariate or prefecture (ad interim)
according to can. 309, must inform the Apostolic See as
soon as possible. In the meanwhile they enjoy the facul-
ties, both ordinary (can. 294) and delegated, which were
enjoyed by the vicar or prefect himself, with the excep-
tion of such as were granted with sole respect to person.
These faculties in certain formularies — the personal
faculties are not contained in these formularies — are
given by the S. C. of the Propaganda.
Can. 311
Qui vacariatui vel praefecturae apostolicae ad certum
tempus praepositus est, debet in regimine cum omnibus
facultatibus sibi concessis permanere, licet definitum
tempus fuerit praeterlapsum, donee successor canoni-
cam sui muneris possessionem ceperit
One who is appointed to a vicariate or prefecture for a
certain time only, must continue to administer the govern-
ment with all the faculties granted to him, until his suc-
cessor has taken canonical possession of the office, even
though this should happen after his own term has ex-
pired.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CHAPTER IX
apostolic administrators
Can. 312
Dioecesis canonice erectae regimen, sive plena, sive
vacante sede, aliquando Summus Pontifex ob graves
et speciales causas Administrator! Apostolico vel in
perpetuum vel ad tempus committit
The Sovereign Pontiff, for weighty and special reasons,
sometimes entrusts a canonically established diocese, either
during the occupancy of the Ordinary or during a vacancy,
to an Apostolic administrator, either permanently or for a
limited period.
Administrators, sometimes styled visitatores, occur in
the Decretals of Boniface VIII. They were appointed
either by the Roman Pontiff or by the chapter, the synod
or the metropolitan, but only those appointed by the Pope
had full power.1 Besides it was customary to allow young
nobles to assume the government of a diocese as ad-
ministrators in temporal, especially princely, affairs.2
Later it became the exclusive right of the Pope to assign
an administrator to a diocese. This right he often exer-
cised in times of politico-ecclesiastical troubles, such as
happened, e. g., at Cologne, and lately at Genoa. The
expedient of appointing an Apostolic administrator is oc-
casionally resorted to when the financial or religious con-
1 C. 42, 6*, I, 6; e. 4, <*, I, 8. 9 SAgmuller, K.R., 1 ed.( p. 3*3-
336
I Original from
jr^OOglL UNIVERSITY OF WISCONSIN
CANON 313 327
ditions of a diocese are in a precarious state. The ad-
ministrator is named in pleno congressu by the S. C. Con-
sistorialis, and the letters of appointment are dispatched
in the form of a Bull.8
s
-
Can. 3
§ i. Quilibet Administrator Apostolicus, si datus
fuerit dioecesi, sede plena, canonicam administrationis
possessionem init, ostendens litteras suae nominationis
a
turn Episcopo, si sit mentis consiliique compos et in
dioecesi versetur, turn etiam Capitulo, ad normam can.
I 334. § 3-
§ 2. Si sedes fuerit vacans, vel si Episcopus non sit
mentis consiliique compos, aut in dioecesi non moretur,
Administrator Apostolicus possessionem sumit ad in-
star Episcopi secundum cit can. 334, § 3.
Every Apostolic administrator given to a see whilst
still occupied by a bishop (sede plena) enters upon the
canonical possession of his administration by presenting
the letters of his appointment to the bishop, if the latter
is in full possession of his mental faculties and dwells in
the diocese, as well as to the chapter, according to can.
334. § 3.
If the see is vacant, or the bishop is not in full posses-
sion of his mental faculties, or if he does not dwell in the
diocese, the administrator takes possession like a new
bishop, according to can. 334, § 3.
We believe "mentis consiliique compos" here means
the full possession of one's mental faculties, for it may be
that one can think rationally, but lacks the faculty of
memory, or by reason of softening of the brain has no
• " Sapientl consilic," June 29, {A. Ap. S., I, 83 t.)
1508. P. II, c. VII. art a, n. 7
Go >gle
j , Original fro m
UNIVERSITY OF WISCONSIN
328 ECCLESIASTICAL PERSONS
will power. The so-called lucida interwlta must not be
taken into account here.
A bishop may dwell outside of his diocese either casu-
Of
ally or fortuitously, or culpably, or as an exile, by de-
portation. Again, he may be in the diocese, but held a
quasi-prisoner. In the latter case, too, it may be said that
he has no power of his own (itnpos consilii).
■
Can. 314
Iura, officia ac privilegia Administrators Apostolici
desumantur ex litteris suae deputations, vel, nisi in
eisdem aliud caveatur expresse, ex praescripto ca-
nonum qui sequuntur.
The rights, duties, and privileges of an Apostolic ad-
ministrator must be gathered from the letter of appoint-
ment, or if no special provision is therein made, from the
rules laid down in the following canons.
Can. 315
§ 1. Administrator Apostolicus permanenter consti-
tutus iisdem iuribus et honoribus fruitur, iisdemque
obligationibus tenetur, ac Episcopus residentialis.
§ 2. Si ad tempus datus sit:
i.° Eadem iura ac officia habet, ac Vicarius Capitu-
laris; sed, sede plena, potest dioecesim visitare ad
tramitem iuris; nee tenetur obligations applicandac
Missae pro populo, quae Episcopum gravat;
2.0 Ad honorifica privilegia quod attinet, valeat prae-
scriptum can. 308; sed Episcopo qui, ad aliam sedem
translatus, prioris retinet administrationem, in hac quo-
que omnia Episcoporum rcsidentialium honorifica
privilegia competunt.
jle
£ * ^ .. ,L» Original fro m
UNIVERSITY OF WISCONSIN
CANON 316 329
An Apostolic administrator, if appointed permanently,
enjoys the same rights and honors and is bound by the
same obligations as a residential bishop.
If he is appointed only for a limited time, he has the
same rights and duties as a vicar-capitular, but may visit
the diocese according to law; but he is not obliged to
apply the Mass for the people, as a bishop is.
As to honorary prerogatives, an Apostolic administrator
enjoys those of a titular bishop (see can. 308), or, if he
is not a bishop, those of Apostolic prothonotaries de
nutnero participantiunt.
A bishop transferred to another see, who retains the
administration of his former diocese, enjoys also in the
latter all the honorary privileges of a residential bishop.
Can. 316
§ 1. Si Administrator Apostolicus dioecesi, sede
plena, praeficiatur, iurisdictio Episcopi ciusque Vicarii
Generalis suspenditur.
§2. Quanquarn autem Administrator Apostolicus
Episcopi auctoritati non subest, non debet tamen se
immiscere causis Episcopum ipsum spectantibus, neque
in Vicarium eius Generalem iudicium seu processurn
instruere aut animadvertere ob acta praetcritae admi-
nistrationis.
If an administrator is appointed for a diocese while its
bishop is still alive, the jurisdiction of the bishop and of
his vicar-general is suspended.
Although the administrator is not subject to the au-
thority of the bishop, yet he must not meddle in affairs
which concern the bishop personally, nor try judicially or
punish the vicar-general for acts of the former admin-
istration.
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
"■
330 ECCLESIASTICAL PERSONS
Can. 317
Si impedita fuerit iurisdictio Administratoris Apo-
stolici aut si idem Administrator defecerit, Sedes Apo-
stolica statim moneatur; et interim, si dioecesis vacet
aut Episcopus non sit sui compos, valent praescripta
can. 429 seqq. ; secus Episcopus dioecesim regit, nisi
Sedes Apostolica aliud praestituerit.
If the jurisdiction of an Apostolic administrator is im-
peded, or if he goes out of office, the Holy See must be
immediately informed ; meanwhile, if the see is vacant or
the bishop is not in full command of his faculties, the pre-
scription of can. 429 ff. must be followed; in all other
cases the bishop rules the diocese, unless the Apostolic See
has decided otherwise.*
Can. 318
§ 1. Administratoris Apostolici iurisdictio Romani
Pontincis aut Episcopi obitu non cessat.
§ 2. Cessat vero cum Episcopus dioecesis vacantis
possessionem legitime ceperit ad normam can. 334, § 3.
The jurisdiction of an Apostolic administrator does not
expire with the death of the Roman Pontiff or the bishop.
But it ceases as soon as the bishop of a vacant see has
taken legal possession thereof, according to can. 334, § 3.
Under § 1 of this canon the canons or consultors of a
diocese cannot proceed to the election of a vicar-capitular
or administrator while the bishop whose diocese is ruled
by an Apostolic administrator, is alive*
4S. C. EE. et RR., Aug. 4. >578; Jan. 24, 1749 (Birurri, /. e. p. 3'.
314, a;6).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
pi
-
CHAPTER X
inferior prelates
Can. 319
§ 1. Praelati qui praesunt tcrritorio proprio, separato
ab omni dioecesi, cum clero et populo, dicuntur Abbates
vd Praelati null ins, ncmpc dioecesis, prout eorum eccle-
sia dignitate abbatiali vcl simpliciter praelatitia gaudet.
§ 2. Abbatia vel praelatura nullius, tribus saltern.
paroeciis non constans, singulari iure regitur. nee eidem
applicantur quae canones statuunt de abbatiis vel prae-
laturis nullius.
Prelates who preside over a territory of their own, be-
longing to no diocese, inhabited by clergy and people, are
called abbots or prelates nullius, vis.t of no diocese, ac-
cording as their church is abbatial or simply prelatial.
An abbey or prelature nullius, which does not consist
of at least three parishes, is ruled by special law, and
the following canons do not apply to it
It is evident that here the question of exemption would,
at least partly, enter canonical discussion. However, this
topic belongs formally to the tract on religious, to which
we must therefore refer the reader for a fuller exposition.
Here we will only state, with Benedict XIV, that there
are three kinds of inferior prelates :
(1) such as are superiors of religious living within a
monastery or convent with passive exemption from the
jurisdiction of the Ordinary;
33i
>ogle
£ " ^ ^ %\s* Original fro m
UNIVERSITY OF WISCONSIN
■
332 ECCLESIASTICAL PERSONS
(2) such as enjoy active jurisdiction over the clergy
and people of a certain district within the limits of a
diocese; and
(3) prelates with active jurisdiction over clergy and
people living in a territory which is separated and dis-
tinguished by proper boundaries from the surrounding
dioceses. The last-named class of prelates are abbots or
prelates nullius (dioeceseos), and their right or title is
acquired by Apostolic privilege or immemorial custom
which bears all the marks of a juridical proof.1 The
Annuario PontiUcio for 1917 enumerates four prelatures,
eighteen abbeys, and one priory nullius.2 One of the
eighteen abbeys is St. Mary's, at Belmont, North Caro-
lina. The Abbey of Einsiedeln, Switzerland, belongs to
the class defined in § 2 of our canon, for its active exemp-
tion and jurisdiction extends only over the territory cir-
cumscribed by the walls of the monastery and over the
clergy and people living within that precinct; therefore
this latter abbey is ruled by special laws.
Can. 320
§ 1. Abbates vel Praelati nullius nominantur et in-
stituuntur a Romano Pontifice, salvo iure electionis aut
presentation is, si cui legitime competat; quo in casu
ab eodem Romano Pontifice confirmari aut institui
debcnt,
§ 2. Assumendi ad abbatiam vel praelaturam nullius
iisdem qualitatibus ornati esse debent, quas ius in
Episcopis requirit.
Abbots and prelates nullius are nominated and invested
l Or Syn. Diotc, II, n, a ff. longing to the United Military Or-
1 Page 183 ff., the priory being den.
that of Ciudad Real in Spain be-
oogle
f^ ^ ^ +\r* Original from
UMIVERSITY OF WISCONSIN
■
9
CANON 321 333
by the Roman Pontiff, with due regard to the right of
election or presentation lawfully belonging to another per-
son ; in which latter case they are confirmed or invested
by the Roman Pontiff.
Those chosen to govern an abbey or prelature nullius
must have the same qualifications which the law requires
for bishops.
Can. 321
Si cui collcgio est ius eligendi Abbatem vel Praela-
tum nullius ad validam electionem requiritur numerus
8uffragiorum absolute maior, demptis suffragiis nullis,
firmo pecuiiari iure quod maior em suffragiorum nu-
mcrum exigat.
As abbots or prelates nullius are classed with bishops,
it is evident that the Pope is entitled to nominate them.
However, the Code does not wish to curtail the acquired
rights of others, be they physical or moral persons.
The physical person generally is the patron, e. g., the
King of Spain concerning Ciudad Real; who presents
a fit person for the vacant office. The right of election
belongs to an electoral college, which must proceed accord-
ing to the rules laid down in can. 160-178. However, if
the constitutions or statutes of a college or chapter re-
quire it, the candidate must have two-thirds of the entire
number of votes. Ori the other hand, any statute or con-
stitution which admits only a relative majority, would
now have to be discarded. If, for instance, there are
forty electors and three candidates, one of whom receives
twenty, the second eleven, the third nine votes, the elec-
tion is null and void. As to the qualifications of candi-
dates, can. 331 must be observed.1
I Gregory XIV, "Onus apoitolicae," May 15, 1591, | m.
■■a* by GoOglc
I , Original from
UNIVERSITY OF WISCONSIN
■
pi
334 ECCLESIASTICAL PERSONS
Can. 322
§ 1. Abbas vel Praelatus nullius nequit quovis titulo
sive per se sive per alios in regimen abbatiae vel prae-
laturae se ingerere, antequam eiusdem possessionem
ceperit, ad normam can. 334, § 3.
§ 2. Abbates vel Praelati nullius qui ex praescripto
apostolico vel ex propriae religionis constitutionibus
benedici debent, intra tres menses a receptis litteris
apostolicis, cessante legitime impedimento, benedic-
tionem ab Episcopo, quern maluerint, accipiant.
§ 1 strictly prohibits any interference in the spiritual or
temporal government of an abbey or prelature nullius by
the candidate-elect before he has received the Apostolic
letters confirming his election. But suppose the election
fell upon the administrator or vicar-capitular, what then ?
In that case, as Pius IX has decided,4 a new administrator
should be chosen by the electoral college. Our Code,
mitigating the Constitution of Pius IX just quoted,0 in-
flicts the penalty of suspension of the right of election ad
beneplacitum, if the electors allow the candidate elected
or presented to interfere before he has received the Apos-
tolic letters notifying him of his appointment. One who
acts against this law is declared unable to obtain the
prelacy.8 But can. 334, § 3 permits an administrator who
is elected bishop, to continue in the office of administrator.
As to the blessing of abbots or prelates nullius, the
Code speaks conditionally, vis., if an Apostolic mandate
or statute requires the same. Up to a few years ago the
Cassinese abbots, three7 of whom are abbots nullius,
A " Romanus Pontifex." Aug. 28, ft Con. 2394.
1873. f Those of Monte Cassino, S.
ft According to the Const, just Paolo Roma, SS. Trinita della Cava
quote-). excommuni cation sptciali de' Tirreni.
modo reierved Ml inflicted.
►ogle
/""* -» -. -J,-. Original from
UNIVERSITY OF WISCONSIN
■
Q
CANON 323 335
were never blessed, because being chosen ad tempus, for
special reasons, they simply took possession of their
abbeys after being confirmed. An abbot must be blessed
by a bishop, not by an abbot.8
Can. 323
3 1. Abbas vel Praelatus nullius easdem potestates
ordinarias easdcmque obligationes cum iisdem sanc-
tionibus habet, quae competunt Episcopis residential!-
bus in propria dioccesL
§ 2. Si charactere episcopali non sit ornatus et bene-
dictionem, si earn recipere debet, receperit, praeter alia
munera quae in can. 294, § 2 describuntur, potest quo-
que ecclesias et altaria immobilia consecrare.
§ 3. Quod attinet ad Vicarii Generalis constitu-
tionem, serventur praescripta can. 366-371.
As to § 1 we may mention ° that some abbots seem to
have exempted themselves from the duty of visiting the
tombs of SS. Peter and Paul at stated times. The Code,
following the law laid down by Benedict XIV, enjoins on
abbots and prelates nullius the same obligations which
are incumbent on residential bishops, including the visitor-
Ho ad limina*
§ 2 appears somewhat misleading, because there are two
conditions in one sentence : if not endowed, and if obliged
to receive the blessing, as if the blessing were a necessary
qualification for obtaining the rights mentioned. We be-
lieve the meaning to be that abbots who are not bishops
may perform the functions allowed to vicars and prefects
Apostolic — for these are mentioned in can. 294, §2 —
8S. Rit. C. March 8, 1617; Bar- »Cfr. Benedict XIV, "Quod
bosa, Summa Apost. Decis., t. v. sancta," Nov. 23, i~-;o, 55 3. 5, 6;
"Abbaa," n. 8. "Firmandia," Nov. 6, 1744. 1 1*.
1 by Google
j , Original from
UNIVERSITY OF WISCONSIN
■
336 ECCLESIASTICAL PERSONS
but that this does not apply to those abbots who are under
obligation to receive the blessing and, against the Apos-
tolic injunction or proper statutes, fail to receive it. As
a penalty for their disobedience they are deprived of pre-
rogatives which they would otherwise enjoy, and which
such abbots as are not bound to receive the blessing enjoy
unconditionally.
We may here draw attention to our explanation of can.
294, § 2, where we said that Apostolic vicars and prefects
are not entitled to consecrate churches and immovable
altars. Can, 323, § 2 adds to the privileges enjoyed by
vicars that of consecrating churches and altars as granted
to the abbots or prelates nullius, who therefore are more
privileged than vicars and prefects.
Can. 324
Capitulum religiosum abbatiae vel praelaturae
nullius regitur propriis legibus ac constitutionibus ;
Capitulum saeculare, iure communi.
Concerning religious chapters and their constitutions,
note must be taken of can. 489, which ordains that par-
ticular constitutions conflicting with the present Code are
to be looked upon as abrogated.
Can. 325
Abbas vel Praelatus nullius, licet charactere episco-
pal! careat, utitur tamen in proprio territorio insignibus
pontificalibus cum throno ac baldachino et iure ibidem
officia divina pontifical! ritu celebrandi ; crucem autem
pectoralem, annulurn cum gemma, ac pxleolum viola-
ceum potest etiam extra territorium deferre.
§le
/-.,., ,L» Original fro m
UNIVERSITY OF WISCONSIN
-
■
pi
Q
CANON 326 337
Abbots and prelates nuttius, though not consecrated
bishops, enjoy within their own territory the right of
wearing the pontifical insignia with throne and canopy,
and of celebrating pontifical functions ; outside their ter-
ritory, they may wear the pectoral cross, a ring set with a
precious stone, and a violet skull-cap.
The canon limits the pontifical functions of these pre-
lates to their own territory, outside of which they are not
allowed to pontificate, unless the Ordinary of the diocese
grants permissioa10
Can. 326
Si praelatura saecularis Capitulo careat, eligantur
consultores ad normam can. 423-428.
Can. 327
§ z. Abbatia vcl praelatura nullius vacante, si agatur
de abbatia vel praelatura religiosa, succedit Capitulum
religiosorum, nisi constitutiones aliud f cram ; si de sae-
culari, Capitulum canonicorum ; uu unique autem
Capitulum intra octiduum debet Vicarium Capitularem
deputare ad normam can. 432 scqq., qui abbatiam vel
praelaturam regat usque ad novi Abbatis vel Praelati
electionem.
§ 2. Abbatia vel praelatura impedita, servetur prae-
scriptum can. 429.
During the vacancy of an abbey or a prelature belong-
ing to religious, the chapter of religious succeeds in the
government, unless the Constitutions provide otherwise;
to a vacant secular abbey or prelature, the chapter of
10 S. Rit. C, Dec. 6, 1631; Bar- "Abbas," n. a8; cfr. can. 137.
boat, Sumna, Dtc. Ap., s. if.
§le
£ " -» vnL Original from
UNIVERSITY OF WISCONSIN
■
"■
338 ECCLESIASTICAL PERSONS
canons succeeds; however, both chapters are obliged
within eight days from date of notice of the vacancy,
according to can. 432 ff., to elect a vicar-capitular, who
shall rule the abbey or prelacy until a new abbot or prelate
is elected.
If an abbey or prelature is impedita, let canon 429 be
observed.
These canons will be treated in their proper places
further down.
Can. 328
Circa Romani Pontificis Familiares, sive praelati
titulo gaudeant, sive non, standum privileges, regulis
et traditionibus pontifkiae Domus.
The term familiares (dependants) of the Roman
Pontiff excludes the so-called palatinate Cardinals, who
would otherwise belong to the famUia pontijicia. The
latter term first included all persons belonging to the
Papal Court, but towards the end of the fifteenth century
it came to be a special distinction or honor granted to
certain persons who stood in a special relation to the
palatinate clergy.11 Now the palatinate clergy really
meant those clerics who served the palatiutn Lateranense,
or Lateran palace. But in course of times various papal
officials and tribunals (Rota and Signatura) were de-
tached from the palatinate clergy and attached to the
Papal Court.12 According to the Annuario Pontificio for
1917 the following belong to the FamUia Pontijicia: two
Cardinals palatinate, the Maggiordomo, the Maestro di
Camera, the Vicar-Prefect of the Sacred Apostolic Pal-
aces, the Auditor of the Pope, the Master of the Sacred
11 Annuario Pontificio, 1917. P- 1 8 Phillips, K.-R,, 1864, Vol. VI,
559. 333 ff.
Go >gle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
N
CANON 328 339
Palace, the secret Chamberlains participant es,1* the Do-
mestic Prelates in great number, the secret Chamberlains
supernumerary, also in great number, the Chamberlains
with the purple dress (pavonazzo) in and outside of
Rome, and finally the secret chaplains in and outside
the City."
■
IB After that would follow the 1* Annuario Ponttficio, i 9 1 7 , p.
camerieri di spada t cappa, who, 455 ff.; Pius X, " Inter multipiice*,"
however, are all secular persons. Feb. 21, 1905.
I Original from
jrXjOOgK. UNIVERSITY OF WISCONSIN
TITLE VIII
THE EPISCOPAL POWER AND THOSE WHO PARTAKE
THEREOF
After treating of the supreme power in the Church and
those who stand either in a proximate or a remote relation
to the Sovereign Pontiff, the Code proceeds to deal with
the episcopal power and those who partake thereof. The
whole preceding title considered only prelates immediately
connected with the Papal Court. This is intelligible, be-
cause all the ranks of the hierarchic order so far enumer-
ated, with the exception of the Primacy itself, are of ec-
clesiastical institution, and, so to speak, ramifications of
the central power.
Now a new title starts, treating of an institution which,
though dependent on the supreme power, exists not by
mere permission or authority of the Roman Pontiff, but
by divine right and ordination.
■J
340
j Original from
OOglL UNIVERSITY 0FWI5C0NSIN
CHAPTER I
T
THE BISHOPS
c
S
Can. 329
■
9
§ z. Episcopi sunt Apostolorum successorcs atquc ex
divina institutione peculiaribus ecclcsiis pracficiuntur
quas cum potcstate ordinaria regunt sub auctoritate
Romani Pontificis.
§ 2. Eos libcrc nominat Romanus Pontifex.
§3. Si cui collegio conccssum sit ius eligcndi Epi-
scopum, scrvetur praescriptum can. 321.
After what has been said under cc. 100 and 216, only a
few remarks remain to be added.
The names episcopus and sacerdos occur promiscuously
up to the third century, and even at the time of St. Gre-
gory the Great, bishops were called consacerdotes, which
is not surprising, since the bishops are priests in the full-
ness of the word, who have received the plenitude of the
priesthood and jurisdiction over a determined territory,
generally called diocese. Hence bishops were also styled
dioeccsani.
Two characteristics distinguish the bishop from the
simple priest : the fullness of the priesthood and the power
of jurisdiction in foro cxterno. The former, potestas
ordinis, consists chiefly in the right of administering the
Sacraments of Confirmation and Holy Orders and per-
forming pontifical consecrations and blessings. The
341
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
342 ECCLESIASTICAL PERSONS
pot est as iurisdicltonis is ordinary, because ipso facto at-
tached to the episcopal office, wherefore the bishop is also
called Ordinarhis (*". e., index) of his diocese. However,
the episcopal jurisdiction is subject to the power of the
Sovereign Pontiff, and hence is neither plena nor inde-
pendent, but limited, first to the diocese (locally) and,
secondly, in regard to subject-matter (materially), espe-
cially by reserved cases and limited dispensations, as also
by co-called causae maiores.
From this we must conclude : ( i ) that whereas the pote-
stas ordinis is equal in the bishops and the Pope, the latter
is superior to the bishops as to the potestos iurisdictionis;
(2) that bishops are superior to ordinary priests both in
power, order, and jurisdiction. These conclusions are de
fide,x The opinion of St. Jerome 2 concerning the equal-
ity of bishops and priests, and the false views of William
a Sancto Amore are of purely historical interest' The
Code merely says that the bishops are by divine right
placed over single dioceses. This expression appears to
us not well chosen. For local organizations are not of di-
vine institution, and therefore single dioceses cannot cor-
rectly be said to be ruled by the bishops in virtue of a di-
vine ordinance. The truth is that, by virtue of their epis-
copal consecration, bishops are radically (aptitudinaliter)
qualified to rule a diocese assigned to them by the Pope.
Jurisdiction, of course, no matter how we conceive it to be
conferred, whether immediately by God through conse-
cration, or mediately through the Pope, can neither validly
nor licitly be exercised without a canonical mission, which,
on account of the monarchical principle of the Church,
l Vatic., Sew. IV, c. 3: Trid., 2 Comm. in Titum. I: Ef-. ad
Seas. 23, cap. 4; can. 7 f . (Den- Ocean. 69, 1; co. 146 ad. Evang. 1.
singer, I. c, on. 1673 ff. nn. B37, 3 Bouix, Dc Farocko, 1855, p. 65 f.
844 f)-
ogle
£ " ^ vnl/» Original from
UNIVERSITY OF WISCONSIN
-
■
pi
CANON 330 343
must be imparted by the supreme head. Therefore, also,
episcopal consecration is, according to modern law,4 re-
served to the Pope, who has moreover the exclusive right
of confirming bishops.8
§ 3 of our canon mentions the election of bishops, which
followed, as we shall see under chapter V (Diocesan
Chapters), the investiture, which the diocesan chapters,
with the approval of the Holy See, vindicated to them-
selves. The Decretals mention this mode of providing
for a vacant diocese, not as a particular concession of the
Holy See, but rather as a matter-of-fact and the usual
thing.
qualities required in a bishop
Can. 330
Antequam quis in Episcopum assumatur, constare
debet, secundum modum a Sede Apostolica determina-
tum, cum esse idoneum.
Can. 331
§ i. Ut quis idoneus habeatur, debet esse:
i.° Natus ex legitimo matrimonio, non autem legiti-
matus etiam per subsequens matrimoniura ;
2.0 Annos natus saltern trig in ta ;
3.0 A quinquennio saltern in sacro presbyteratus or-
dine constitutus :
4.0 Bonis moribus, pietate, animarum zelo, pru-
dentia, ceterisque dotibus praeditus, quae ipsum aptum
3
4 Schemier. JurUprvd. Eeel. would put at least a tijn of Inters
Civitis, I. I, tr. 3, c. 1, n. 56a; rogation after the word " restituta,"
Pontificalt Kom., tit. de consec used id the paragraph quoted; even
elect:, the Decreta.1t speak of election 01
8 Benedict XIV, "In postremo," aoraething usual and legal; cc, 46,
Oct. 20, 1756, I 15; but historiaaa 48, 50, 57, X, I, 6 de electione.
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
344 ECCLESIASTICAL PERSONS
efficiant ad gubernandam dioecesim dc qua agitur ;
5.0 Laurea doctoris vel saltern licentia in sacra
theologia aut iure canonico potitus in athenaeo aliquo
vel in Institute studiorum a Sancta Sede probatis, vel
saltern earundem disciplinarum vere peritus; quod si
ad religionem aliquam pertineat, a suis Superioribus
maioribus vel similem titulum vel saltern verae peritiae
testimonium habeat.
§ 3. Etiam electus, praesentatus vel quoquo modo ab
illis designatus, qui privilegio a Sancta Sede concesso
eligendi, praesentandi seu designandi gaudent, debet
memoratis qualitatibus pollere.
§ 3. Iudicare num quis idoneus sit, ad Apostolicam
Sedem unice pertinet.
Can. 33a
■a •
■
§ i. Cuilibet ad episcopatum promovendo, etiam
electo, praesentato vel designato a civili quoquo Gu-
bernio, necessaria est canonica provisio seu institution
qua Episcopus vacantis dioecesis constituitur, quaeque
ab uno Romano Pontifice datur.
§ a. Ante canonicam institutionem seu provisionem
candidatus, praeter fidei professionem de qua in can.
1406-1408, iusiurandum Bdelitatis erga Sanctam Sedem
edat secundum formulam ab Apostolica Sede probatam.
No one, says can. 330, shall be appointed a bishop, un-
less his fitness is proved according to the rules prescribed
by the Apostolic See. It also mentions the processus in-
formativus* or investigation into the qualifications of can-
didates for the episcopal office. This is now conducted
by the S. C. Consistorialis. For appointments to bishop-
<
e I rid., Sot. 24, c. I de rcL
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
■
pi
CAtfON 332 345
rics outside of Italy, the Secretary of State gathers the
necessary documents, makes up what is called the " posi-
tion " of the case, and then proposes it to the full Congre-
gation. According to a decree of July 25, 1916, of the
same Congregation T the names and qualifications of can-
didates for American sees, after being passed upon by the
bishops and the metropolitan of the province, must be for-
warded to the Secretary of State.
Canon 331 states some of the qualities which are re-
quired in episcopal candidates over and above those de-
manded for the priesthood.
(1) The candidate must be of legitimate birth. Le-
gitimation by a subsequent marriage is not sufficient
This is a stricter regulation than was usually admitted by
authors.8 It means that at the time the candidate was
born, his parents must have lived in lawful wedlock.
(2) The candidate must be thirty years of age and in
sacred orders or the priesthood. As to age, the old law B
was not quite determined up to the Decretals,10 and the
Tridentine Council did not fix the precise agep but simply
referred to the canons.11 And as to the time during
which one had to be in sacred orders, the Council re-
quired only six months. The new Code requires fivt
years.
(3) The moral qualifications are more detailed in our
canon than in the Tridentine decrees.11
(4) As to scientific equipment, the Code closely fol-
lows the enactments of Trent, but inserts " vere peritus"
to determine more definitely the Tridentine decree which
says that if an academic degree is wanting, "at least the
t A. Ap. S., ip»6 (VIII), p. 4»o 9C. 3. dist 77 required 45 yean;
fT. c Dist. s» only 30 years.
8 Cfr. Barbosa, D§ Officio H 10 Cc. 7, *S». X. I, 6 dc electionc.
PottitaU Bp., P. II, a! leg. 1, on. 11 Sesa. 22, cade ref.
33 *. 1» lb. and Sew. a4. e. 1 dc ref.
ogle
£ - ^ v , Original from
UNIVERSITY OF WISCONSIN
346 ECCLESIASTICAL PERSONS
public testimony of an academy should declare the can-
didate fit to teach others." It is not probable now-a-
days that, as in the time of Honorius III (1216-1227), a
bishop should be unable to read the grammar or " Dona-
tus/' " but the standard of scholarship laid down by the
Code must be insisted upon. For, as Barbosa says, a
bishop without learning is like a ship without a rudder,
a clock without weights, a hen without wings.14 A
bishop should be particularly " well versed " in theology
and canon law because the former governs the court of
conscience, while the latter is required for the forum
externum.
The superiores maiores of a candidate who belongs to
a religious order or congregation are the Abbot Primate,
the Abbot President, the Abbot, the Superior General, or
the Provincial.15
The same qualities are required for all candidates for
episcopal sees, no matter whether they are elected, pre-
sented, or designated, for the law 18 makes no distinc-
tion. Nor is there any reason for granting an exemption
when the public welfare is concerned, since these quali-
ties are prescribed not merely for the persons, but for
the office, which is one of great dignity and importance.
Nothing, says Innocent III, is more offensive to the
Church of God, than unworthy prelates ruling souls.17
The Roman Pontiff alone is competent to judge whether
or not the qualities described in the papers relating to
the processus infortnativus are sufficient. Of course, in
case of necessity or utility the Pontiff may dispense with
some of the required qualifications.18
'■-.
13 C. 15, X, I, 14. 18, 44, 53, X, I, 6; Trid., Scat. 24.
14 Dt Officio et Pot. Efi., P. II, c. 1 de ref.
alleg. it n. »5. >*C 44. X, I, 6.
is Con. 488, 8"; cfr. Trid., Sess. IB lb. and c. 19, X, I, 6; Pius
- -■. c a de ref. X. Allocutio " Duplicem," Nov. 14,
i«Cfr. cc. 1, 3, X, 1, 5; cc. 7, 1904.
Go >gle
j , Original fro m
UNIVERSITY OF WISCONSIN
■ ■-,
CANON 333 347
Can. 332 rejects the claim of the so-called regalists
that the right of presentation includes investiture, and
that consequently a bishop can enter upon the govern-
ment of his diocese without papal investiture and docu-
ments.10 The contrary is true. Only by ratification on
the part of the Apostolic See can one become a bishop or
Ordinary of a diocese. This confirmation is preceded
by two acts: the profession of faith and the oath of alle-
giance to the Church. The oath must be taken before
an Apostolic Delegate, personally and not by proxy.20
If the consecration is performed in virtue of Apostolic
letters, the oath of fidelity or loyalty is taken into the
hands of the consecrator." This is that M fearful" ( !)
oath which most probably Pope Gelasius I (492-496) pre-
scribed for the suburbicarian bishops, and which St. Boni-
face, the Apostle of Germany, made into the hands of
Gregory II, which did not, however, prevent him from
making remonstrances to Pope Zachary.22
Can. 333
Nisi legitimo impedimento prohibeatur, promotus
ad cpiscopatum, etiamsi S. R. E. sit Cardinalis, debet,
intra trea menses a receptis apostolicis litteris, conse-
crationem suscipere, et intra quatuor ad suam dioece-
sim pergere, salvo praescripto can. 238, § a.
Unless prevented by a lawful obstacle, one promoted
to a bishopric, even though he be a cardinal of the Holy
Roman Church, must within three months after receiv-
ing the Apostolic letters receive consecration, and within
it Pius IX, Allocutio, " Nunquara 20 Can. 1406 f.
fore," l>ec. 15, 1856; Syllabus, n. 21 Pontificate Rom., De Consecr.
50 (Denzinger, n. 1598); "Rom- Electi in EpUcopum : Forma jura-
anus Pontifex," Aug. 2%, 1873; cfr. menu'.
c 18, X, 1, 6; Reg. luris I in 6"; WCjf. Aliog, Manual of Church
e. 3, Clem. 1, 3. History, i8;6, II, p. 114.
jle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
348 ECCLESIASTICAL PERSONS
four months take up residence in his diocese. The car-
dinal-bishops of the suburbicarian sees are the only ones
exempted from this rule. The text is based upon an
old law," and its meaning is evident, with the possible
exception of the time within which a newly consecrated
bishop must go to his diocese. For it might be construed
either that the four months run from the date of conse-
cration, or that they must be counted from the date
of having received the Apostolic letters of confirmation.
In the first case seven months would be granted, in the
latter only four. We believe that the latter interpreta-
tion is the correct one, because otherwise the clause
would have no proper starting point; and hence the
omission of the terminus a quo in the last clause must
be supplied from that of the first or, " a receptis litteris"
This seems still more probable if we consider the omis-
sion of the word " months " in the last clause.
duties and rights of bishops
| Can. 334
§ i. Episcopi res id en uales sunt ordinarii et inune-
diati pastores in dioecesibus sibi commissis.
§ a. In regimen dioecesis neque per se neque per
alios, nee ullo sub titulo sese ingerere possunt, nisi
prius eiusdem dioecesis possessionem canonice ceper-
int; sed si ante suam ad episcopatum designationem
vicarii capitulares, officiates, oeconomi fuerint renunti-
ati, haec officia etiam post designationem retinere et
exercere possunt.
§ 3. Canonicam dioecesis possessionem capiunt Epis-
copi residentiales simul ac in ipsa dioecesi vel per se
-
<
"Ce. ft 44, X, I, 6; Trid., Sew. 7. <:• 9. <*• «**; Sew. 33, c. 2 At ref.
>gle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 334
349
vel per procuratorem apostolicas litteras Capitulo ec-
clesiae cathedralis ostenderint, praesentc secretario
Capituli vel cancellario Curiae, qui rem in acta referat.
Bishops are the judges-in-ordinary of their respective
districts, because their power accrues to them in virtue
of the episcopal office, not by mere delegation. What the
term immediate, taker from the decrees of the Vatican
Council," means is to be determined by the bishop's de-
pendence upon the supreme authority of the Church on
the one hand, and by his independence of any secular or
clerical power on the other. Pius X complained against
the illegal procedure of the government of Portugal, which
tried to separate clergy and people from the centre and
subject them to its own power.35 The episcopal power,
though it may be offered by electors or patrons, is not
conferred by them, but by the Sovereign Pontiff, and is
attached to the office. Immediate in the truest sense
would mean that the episcopal power is the result of
consecration. But it is hardly probable that the Code
intends to settle a controversy which has been debated
for a long time and with an excess of zeal "by canonists."
Probably the term here only means that, aside from papal
interposition, no other power on earth shares in the be-
stowal of episcopal jurisdiction.
With regard to his inferiors, the bishop of a diocese
is their free and independent judge, and not responsible
to them, but subject only to the supreme lawgiver and the
common law of the Church."
The next paragraph emphasizes that a bishop elect,
even after he is confirmed, should not interfere in dio-
Ut Sea. IV, c. 3 (Denringer, /. C.
n. 1674).
211 " Iamdudum," May M, i»ii
{A. Ap.S., Ill, 117 ff>.
2«Cf. Benedict XIV, Dt Sy*.
Diotc, I, 4. •'•
>T Aiconer. J. c, f us, j, c.
GoogI
Original fro m
UNIVERSITY OF WISCONSIN
3So ECCLESIASTICAL PERSONS
cesan matters before he has taken canonical possession
of his see.28 Stress is here laid, as the quotations of
Card. Gasparri show, on the Apostolic letters of Pius IX
against the regalistic tendencies which tried to subvert the
organization of the Church in favor of civil govern-
ments.29 But the old law already opposed such encroach-
ment.80
Our canon permits a candidate elected and confirmed
to a bishopric to continue in the office of administrator
or official (can. 1573), if he held these offices before his
appointment to the episcopate. As bishop elect, how-
ever, he cannot accept any such office.
The act of taking juridical (not liturgical) possession
of a see is performed in the chapter (in capitulo). In
our country this means that the consultors, who take
the place of the chapter as far as this forms the senate
of the bishop,81 must meet to hear or inspect the papal
document. The chancellor of the diocese, who acted as
such under the preceding bishop, must be present, in order
to make a record of the proceeding.
p
Can. 335
§ 1. Ius ipsis et officium est gubernandi dioecesim
turn in spiritualibus turn in temporalibus cum potes-
tate legislativa, iudiciaria, coactiva ad normarn sacro-
rum canonum exercenda.
§ 2. Leges episcopales statirn a promulgatione obli-
gare incipiunt, nisi aliud in ipsis caveatur ; modus au-
tem promulgations ab ipsomet Episcopo determinatur.
28 See can. 321. 80 Cc. 9, 17. aj. X. I, 6; c. 5.
2B"Nunquam fore," Dec. 15, 6°, I, 6; c. i, Extrav. Comra. I, 3.
1856; Syllabus, n. 50; " Roman ui ai Can. 427.
Pontifex," Au*. 28, 187J.
£ ■ Vi
§le
Original from
UNIVERSITY OF WISCONSIN
CANON 336 351
j
Can. 336
§ z. Observantiam legum ecclesiasticarum Episcopi
urgcant; nee in iure communi dispensare possunt, nisi
ad norm am can. 81.
§ 2. Advigilent nc abusus in ecclesiasticam discipli-
nam irrepant, praesertim cira administrationem Sacra-
mentorum et Sacramentalium, cultum Dei et Sanc-
torum, praedicationem verbi Dei, sacras indulgentias
implementum piarum voluntatum; curentque ut puri-
tas fidei ac morum in clero et populo conservetur, ut
fidelibus, praecipue pueris ac rudibus, pabulum doc-
trinae christianae praebeatur, ut in scholis puerorum ac
iuvenum institutio secundum catholicae religionis prin- ,
cipia tradatur.
§ 3. Circa praedicationis munus, servetur praescri-
ptum can. 1327.
About these two canons many pages might be written.
The new Code has rendered a great service to the bishops
as well as to canonists, as the former have in it a guide-
book through the labyrinth of canon law, while the lat-
ter are allowed to refer to the respective canons. Yet
some observations will not be superfluous.
(1) The bishops, in virtue of their office, enjoy
legislative power within the limits of the common law,
from which, however, they may dispense under certain
conditions. These conditions are laid down in canon 81,
which says that a bishop cannot dispense even in indi-
vidual cases unless this power has been given to him either
explicitly (by a faculty), or implicitly in virtue of a
special office connected with that of Ordinary. Implic-
itly may also mean that the law itself grants the power
of dispensation in certain cases. And, indeed, our Code
Gi Original fro m
OOglt UNIVERSITY OF WISCONSIN
fflictc iti r\fl/Mili**r cir/niT^ctflnfiQc 89
352 ECCLESIASTICAL PERSONS
St
mentions several instances in which Ordinaries may grant
dispensations which would otherwise be beyond their
power. Thus they may dispense from examinations those
who are distinguished in theological science 8S ; they may
dispense from occult irregularities," from the banns of
marriage/* from impediments of ecclesiastical law in
certain cases,80 and from fasting and the observation of
feasts in peculiar circumstances.1
But, as noticed under can. 81, there is another category
of cases in which bishops may dispense, vis.: if the three
conditions mentioned there occur. Hence if the law, on
the one hand, is sufficiently explicit as to the power of
dispensation, it is also strict in limiting the use of that
power.
Here let us state that, without solid reasons, Ordi-
naries cannot validly dispense in common law. Laxity
in that regard would subvert ecclesiastical discipline, en-
danger the hierarchy, and invite schism, such as the
pseudo-council of Pistoja tried to bring about.58
In what, then, does the legislative power of the bishops
consist? Being the guardians, not the authors, of the
common law of the Church, they have to watch over its
enforcement." They may furthermore make new de-
crees in matters which the common law has overlooked
or left undetermined, for in that case an episcopal decree
is not against, but beyond the law. Thus, for instance,
the common law i0 ordains in a general way that children
ta Can. 459, f 3. 190 ff.), nl which we shall treat in
81 Can. 990. on Appendix.
M Cm. 1028. «8 Pius VI, " Auctorem fidei,
•6 Can. 1043, X045. nn. 7, 74 (Deminger. /. c.
*9
• - *-BU. ''MJl !*--«:. ««. ft r<J v.-'^,.-W.SI.-i, .. ..,
88 Can. 114$. 1370, 1437).
•T Can. 85. The S. C Com. 8fi Benedict XIV, Dc Sy*. Diotc,
(Apr. *5, 1918) haa abolished cer- XII, ptwrim.
tain facultiH {Acta Ap. Sidii, X, 40 Rituale Rom., tit. 9.
^le
j , Original fro ni
UNIVERSITY OF WISCONSIN
-
CANON 336 353
should be brought to church for baptism as soon as pos-
sible. Here the bishop may determine the precise time.
He may also determine more accurately the common law
rules concerning clerical dress and conduct. He may
abolish customs contrary to the common law and proper
to his diocese only ; although, as Benedict XIV says, he
should be cautious in abrogating long standing traditions
tolerated by the Church.41 However, a bishop would
exceed his power were he to demand of ordinandi the so-
called five-year pledge under threat of refusing them
Holy Orders. For such an ordinance would be tanta-
mount to establishing an irregularity, which bishops can-
not do."
(2) The judiciary power of the Ordinary extends to
all ecclesiastical matters brought before his court, which
are not specially reserved to the Holy See. Reserved
are all causae maiores, as noted above/8 as well as the
foundation of religious communities and the approbation
of their constitutions.44 Otherwise bishops are judges-
in-ordinary of the first instance, and therefore every
bishop must establish a diocesan court and finish cases
brought before him within the time prescribed by law.41
Besides, at canonical visitations he may issue enactments
and rules for correction, from which appeal can be made
only in devolutivo.46 Lastly, they may reserve cases to
themselves, but only a few, at most four.4T
The place where a bishop can exercise his judiciary
power, in cases of contentious jurisdiction, is his whole
4lBened. XIV, /. c, XII, 7. 4! **Can. 49a.
XI, cc. xoff.; XI, ©c 1-3. 48 Can. 363 f.j can. 1709.
4S This 11 the opinion of a Roman •• Benedict XIV, "Ad milltan-
canonist whom we consulted about da," March 30, I?4?i can. 345.
tha matter. 47 Can. 697.
4* Can. aio.
>Ic
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
354 ECCLESIASTICAL PERSONS
■
diocese (barring places exempted) ; whilst extra-judicial
or voluntary jurisdiction may be exercised even outside
the diocese.48
(3) The coercive power of a bishop consists in inflict-
ing ecclesiastical penalties on such as are contumaciously
delinquent and recalcitrant. Here especially the censures
are to be noted. They are either established by law or
directly inflicted by the Ordinary. The Code admonishes
bishops to be moderate and very circumspect in wielding
this power.49 To inflict canonical penalties without
weighty reasons would diminish episcopal authority and
provoke contempt of the bishop.50 Temporal punish-
ments, especially fines, forfeiture of revenues, etc., unless
permitted by law, should be sparingly used.
(4) Regarding the administrative power of a bishop,
he is the dispenser and steward of all the church prop-
erty within his jurisdiction, i. e., so far as not exempt by
law, and as such must watch over the diocese.51 Here
we deem it well to call attention to the late decree of the
S. C. Council, which says that bishops should not hold
church property in fee simple, but have it acknowledged
by the State as vested in parish corporations or a cor-
poration sole, to be administered by the bishop with the
cooperation of trustees and the diocesan consultors."
The bishop is furthermore entitled and obliged to demand
an account of priests or administrators, and to see to it
that testaments are properly executed.88
As to civil laws, note that some States of our Union
restrict the amount of property that a church or religious
society may hold, and the use to which it is put, whereas
a
«fl Cfr. c. 7, 6", I, 16; can. 201. M Can. 1519.
«Cin. 8341. 02 July 29, 191 1 {Am. Eccl. Rev.,
MTrid.. Sms. as. c. 3 de ref.; Vol. 4S, 586).
Benedict XIV, Dt Syn. Diotc., r, 53 Can. 1520 ff; Trid., Sew. n,
5» 3- cc. 9, 11 de ref.; can. 151$.
ogle
Original from
UNIVERSITY OF WISCONSIN
CANON 336 355
other States have no restrictions. Nearly all States, how-
ever, have some statutory laws, which must be observed
as far as they do not conflict with ecclesiastical laws."
A deed of land to the bishop for a church in fee simple
creates a trust, and on the death of the bishop, the title
passes to his successor." As to cemeteries, the civil laws
generally acknowledge ecclesiastical jurisdiction.00
As regards the exactions the bishop is entitled to make,
see can. 1504-1507.
(5) The bishop's ius vigilantiae, according to canon
336, is exercised by watching that no abuses creep into :
(a) The administration of the Sacraments and Sacra-
mentals, which should take place according to the Rituale
Romanian. No diocesan ritual should be used, unless it
has the special approbation of the Holy See (S. Rit. C).
Bishops may approve editions of Roman liturgical books,
if they are in strict concordance with the original text.
Their approval is simply testifying to the correctness of
the reprint. Bishops may also approve and publish a
diocesan calendar with feasts prescribed for the uni-
versal church or for their diocese especially. Besides,
they may set the hour of divine service more precisely,
For the rest the third book contains explicit instructions.
(b) The divine worship and the veneration of saints
might be endangered by tolerating devotions not approved
by the Church, or by the exhibition of strange images
and unusual representations, drawing an aureole around
the head of one not yet beatified or canonized, etc."
The bishops might, at times, profitably say a word about
pictures, sculptures, and architectural designs.
04 Scanlan, The Lav of Churxh BO Scanlan, □. 287.
and Grave, 190Q, n. 304; C. ZoU- Ott Ibid., n. 454-
mann, American Civil Church Law, 07 Trid., Sew. 25, de invoc., ven-
1917. erat., etc
>Ie
% ,.] , Original fro ni
UNIVERSITY OF WISCONSIN
356 ECCLESIASTICAL PERSONS
(c) As to indulgences, see the rules laid down in can.
(d) Concerning the purity of faith and morals, the
rules on the censorship of books are of special impor-
tance.68 Of course, bishops are not infallible judges in
matters of faith and morals and cannot singly define arti-
cles of faith, and therefore they should abstain from en-
deavoring to settle dogmatical controversies which the
Church has not yet decided.58
(e) About schools, the Code gives some important
rules in can. 1375 ff., and it is not necessary to repeat the
injunctions of popes and councils touching that matter-
Leo XIII in the beginning of his pontificate,*0 addressed
all the bishops of the Church, saying: "Your duty,
Venerable Brethren, is to take every care that the seed
of celestial doctrine be sown throughout the field of the
Lord, in order that the minds of the faithful may be
deeply imbued with the Catholic truths and firmly rooted
and preserved from error." He went on to urge upon the
bishops the necessity of giving a solid Catholic training
to the young.
(f) As to preaching, the new Code merely reiterates
the old precept that bishops must preach the word of
God and also see to it that the pastors do their duty
in this important matter.'
«
pontifical functions
Can. 337
§ 1. Episcopus in tota dioecesi, ne exceptis quidem
UCu. 13840. «t II Tim. 4. a; Acts 6, a; Bese-
m Benedict XIV, D$ Syn. Diote., diet XV, " Humani generii," June
VII, ii, J. *5i i9*7i cfr. can. 13*7.
•0 " Inacrutabili," April ai, 1878.
jle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-
CANON 337 357
locis exempt is, potest pontificalia exercere; non vcro
extra dioecesim sine expresso vel saltern rationabiliter
praesumpto consensu Ordinarii loci, et, si agatur de
ecclesia exempta, de consensu Superioris religiosi.
§ 2. Exercere pontificalia in iure est sacras functiones
peragere quae ex legibus liturgicis requirunt insignia
pontificalia, idest baculum et mitram.
§3. Episcopus, liccntiam concedens pontificalia ex-
ercendi in suo territorio, potest quoque permittere
usum throni cum baldachino.
" That a bishop may perform pontifical functions which
. require the use of the pastoral staff and mitre, even in
the exempt churches of his diocese, has been decided by
several congregations. Thus the S. C. EE. et RR. an-
swered on July io, 1603, that a bishop may employ cen-
sures if regulars refuse him that right/2 Outside his
diocese, however, a bishop needs the consent of the re-
spective Ordinary. This consent may reasonably be pre-
sumed if the Ordinary is absent and has never objected
to outside bishops pontificating in his diocese. However,
if the church belongs to exempt religious outside his own
diocese the consent must be expressed, because in that
case the Ordinary08 has no power to give his consent,
and the religious superior is not supposed to permit a
stranger to exercise pontifical functions, in order not to
establish a precedent.
Pontifical functions, says the Code, are such as require
the use of the pastoral staff and mitre, hence, the con-
ferring of Holy Orders (even minor), Confirmation,
•s Bar boss, Summa DecU. A post., that of the religious superior, al-
t. v. " Baldachin urn." though M et " (and) would not ex-
•lW« scarcely believe that the elude that interpretation; but the
Code intends to enjoin two con- consent of the religious superior
tents: that of the Ordinary and too may reasonably be presumed.
>Ic
v ,1,., Original from
UNIVERSITY OF WISCONSIN
358 ECCLESIASTICAL PERSONS
blessing abbots, consecrating virgins,** consecrating
chrism, sacred vessels, blessing sacred vestments, etc.
Mitre and staff always go together and are things related
to one another in the bishop's use, except, of course, in
Masses de requiem.*6
residence
Can. 338
§ x. Etiamsi Episcopi Coadiutorem habeant, tenen-
tur lege personalis in dioecesi residentiae.
§ a. Praeterquam causa visitationis Sacrorum Limi-
num, Conciliorum, quibus interesse debent, vel civilis
officii suis ecclesiis legitime adiuncti, abesse possunt
aequa de causa non ultra duos vel ad summum tres
menses intra annum, sive continuos sive intermissos,
dummodo cautum sit ne ex ipsorum absentia dioecesis
quidquam detrimenti capiat : quod tamen tempus con-
iungi nequit sive cum tempore sibi concesso occasione
suae promotionis, vel visitationis Sacrorum Liminum,
vel assistentiae Concilio, sive cum tempore vacationum
anni subsequentis.
§ 3. Ab ecclesia cathedrali ne absint tempore Ad-
ventus et Quadragesimae, diebus Nativitatis, Resur-
rectionis Domini, Pentecostes et Corporis Christi, nisi
ex gravi et urgenti causa.
§ 4. Si ultra sex menses e dioecesi illegitime abfu-
erint, Episcopum Mctropolita. ad nor mam can. 274, n.
4, Metropolitam antiquior Suffraganeus residens Sedi
Apostolicae denuntiet
eiThe phrase "La consacta," «s Cf. Benedict XIV. "Ad eu-
which frequently occurs in the re- iientiam," Feb. 15, 1753, fi8;
gesta S. C. EE. et RR. means the Caeremoniate Episcoforum, I, c.
solemn blessing nf nuns (moniales) 17. nn- 4. 8.
with solemn vows.
jle
f^ ^ s.r-As± Original from
UNIVERSITY OF WISCONSIN
CANON 338 359
This canon deals with the important duty of residence,
by which is understood not only material presence
in the place of office, but also personal discharge of
the duties involved. For offices are indeed attached to
places, as the Council of Chalcedon (c. 6) enacted, but
they are also generally conferred with regard to personal
qualities (de industria personae). Hence this obligation
may truly be said to have its foundation in divine law,
although it is modified and further determined by ecclesi-
astical law.
The place where the bishop must reside is his dio-
cese, but not necessarily the cathedral church. His
presence in the latter is required only at certain times
mentioned in § 3. In this point the old law 00 agrees
with the new Code.
The law of residence obliges all residential bishops, as
well as Cardinals who govern a diocese, with the excep-
tion of the six cardinal bishops of the suburbicarian
sees.67
We may add that, according to canonists, residence in
the diocese means attending to business, not merely look-
ing on.
§ 2 allows a three months' vacation, as granted by the
Tridentine Council.08 This period does not include the ca-
nonical visit to the tombs of SS. Peter and Paul (a mere
pleasure trip, even a pilgrimage, cannot be called a visi-
tatio ad litnina) nor the time spent at a council at which
attendance is of obligation. (A friendly visit to a
provincial or plenary council at which a bishop is not
obliged to be present, because not belonging to that prov-
eaC. 19 ff. c. asf.. C. 7. a. t: XIV. "Ad un%vtrsa$,u Sept s.
"■
<*« ^. 19 a, c as ■•• v.. 7, v. ■•
C 9. X, III, 4; Trid., Sew. 6, c
1 1 Ses*. 23, c. 1 de ref.; Richter, *t Can. 238.
1746.
Trid., pp. 33 ff-I P- *7« ff-I Benedict 68 L. e
■
* I Irwilt* Original from
lOOgll UNIVERSITY OF WISCONSIN
N
■
360 ECCLESIASTICAL PERSONS
ince or country, could not be reckoned off). Lastly, —
and this is intended mainly for countries (e.g., Austria)
in which the bishops are ex officio deputies to parliamen-
tary assemblies — bishops are allowed to deduct from the
three months allowed them for vacation the time they
are in duty bound to spend outside their dioceses to at-
tend parliamentary sessions. Foreseeing, however, hu-
man frailty and astuteness, or perhaps also good faith
wrongly applied, the Code forbids any arbitrary inter-
pretation as to the three months' period by stating that
no combination or putting together is allowed, because
that would protract a bishop's absence from his diocese.
No mention is made of lawful absence because of a
civil office, for in that case circumstances are not at the
command of the bishop.
Note that a vacation may not be prolonged by taking
the last three months (Oct-Dec.) of one year and the
first three months (Jan. -March) of the following year
and staying away six months in succession. All these
questions were proposed to the S. Congregation under
Urban VIII and solved as stated in the Code.68
§ 3 describes the feasts on which bishops must be at
their cathedral, for they are pastors whose voice the faith-
ful hear more willingly. From this duty they are excused
only by an urgent and solid reason, such a one, says
Benedict XIV, as will stand the test before the tribunal
of the great Judge.70
§ 4 ordains that, if a bishop is unlawfully absent from
his diocese for more than six months, the metropolitan
must report him to the Holy See, and if he is himself a
metropolitan, this duty devolves on the senior suffragan.
•0 Benedict XIV, "Ad uni- 70" Ubi primum," Dec. 3. <74°*
vtnat," 8 Cum vero. I 4.
Gi Original from
OOglt UNIVERSITY 0FWI5C0NSIN
■
pi
CANON 339 361
Reasons which would excuse such absence are, according
to the Council of Trent : "
(a) Christian charily, for instance, preaching to infi-
dels and heretics, or a lecture which cannot well be post-
poned; spiritual or bodily help to confreres and people in
time of distress or calamity, such as war, earthquakes,
etc
(b) Urgent necessity, relating to his own person, for
instance, persecution, ill-will of the people, or personal
infirmity requiring a change of climate; however, the
danger of contracting disease in times of epidemics and
perils common to pastors and flock does not excuse the
bishop from keeping residence;73
(c) Obedience to superiors, for instance, a call to
Rome or to the Metropolitan, perhaps for a special meet-
ing, trial, canonization, etc To this class belong the
visitatio ad limina and assistance at councils, as expressly
stated in the Code ;
(d) Evident utility of Church or State, for instance, as
peacemakers, as extraordinary envoys or counsellors, as
strike settlers, etc. However, if time permits, it is ad-
visable to inform the metropolitan or the Apostolic See.7'
Reports concerning the non-observance of the law of
residence are to be made to S. C. Consistorialis.1*
missa pro populo
Can. 339
§ t. Debent quoque, post captam sedis possessionem,
omni exiguitatis redituum excusatione aut alia quavis
Ti Trid.. Sess. 33, c. 3; Sesu. 24, versae."
c u; Benedict XTV, * Ad uni- TS Wern*. /. r., II. p. 557*. P- 5^4
vtrsar." ed. 1; cfr. can. 465; *t6&> a*75-
T« Benedict XIV, "Ad uni* « Can. 24$, 83-
§le
v ,1,., Original from
UNIVERSITY OF WISCONSIN
362 ECCLESIASTICAL PERSONS
exceptione remota, omnibus dominicis aliisque festis
diebus de praecepto, etiam suppressis, Missam
populo sibi commisso applicare.
§ 2. In festo Nativitatis Domini, ct si quod festuni
de praecepto in diem dominicam incidat, satis est ut
Missam unam pro populo applicent.
§ 3. Si festum ita transferatur ut in die ad quern non
solum fiat officium cum Missa festi translati, sed ser-
ventur quoque obligationes audiendi Missam et absti-
nendi a servilibust Missa pro populo applicanda est
in die ad quern; secus in die a quo.
§ 4. Episcopus Missam pro populo diebus supra in-
dicatis per se ipse applicare debet ; si ab eius celebra-
tione legitime impediatur, statis diebus applicet per
alium ; si neque id praestare possit, quamprimum vel
per se ipse vel per alium applicet alia die.
§ s. Licet Episcopus duas vel plures dioeceses aeque
principaliter unitas regat aut, praeter propriam dioece-
sim, aliam vel alias in administrationem habeat, obli-
D
gationi tamen satisfacit per celebrationem et applica-
tionem unius Missae pro universo populo sibi com-
misso.
§ 6. Episcopus, qui obligationi de qua in supcriori-
bus paragraphia, non satisfecerit, quam citius pro
populo tot applicet Missas, quot omisit.
The first of these paragraphs is taken almost verbally
from the Apostolic letter of Leo XIII, "In suprema,"
June 10, 1882, where the Pontiff says that one of the
duties of a pastor is to pray and offer sacrifice for his
flock, and that this obligation, considered in general and
not as to fixed days, is based on the divine law. The
Code with the S. C. Concilii, insisting upon the Tridentine
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 339 363
decrees," authentically explains and extends this rule to
all bishops and cardinals who govern a diocese, and to
abbots and prelates nullius.
The days on which a bishop has to say Mass pro populo
are Sundays, holydays of obligation celebrated in foro
et choro, and such suppressed feastdays as are now cele-
brated only in choro. The feastdays in foro et choro, or
holydays of obligation, are: New Year's Day, Ascension,
Assumption of the Blessed Virgin, All Saints, Immaculate
Conception, and Christmas (First Mass).7® The sup-
pressed feasts are : Epiphany, Purification," St. Matthias,
St. Joseph (March 19), Annunciation B. M. V., Monday
and Tuesday after Easter, Monday and Tuesday after
Pentecost, SS. Philip and James, Finding of the Holy
Cross, Corpus Christi, St. John Baptist, SS. Peter and
Paul, St. James, Nativity of the Blessed Virgin, St. Mat-
thew, St. Michael (Sept 29), SS. Simon and Jude, St.
Andrew, St. Thomas, St. Stephen Protomartyr, St. John
Evangelist, Holy Innocents, Pope St. Sylvester (Dec.
31)."
The rest of the canon needs no explanation, with the
exception perhaps of two phrases. 'Si ab eius celcbra-
tionc legitime impediatur" (§4) does not mean that a
bishop is unable to say Mass at all, but that he is not able
to apply his Mass ; for instance, he may have to say a
Mass for a special intention, a funeral Mass, or a missa
pro sponso et spotusa, or perhaps he has a plngue stipen-
dium for that day and no other. All these and simi-
lar reasons are considered lawful, provided a bishop com-
plies with the rest of the canon. — " Aeque principaliter
ts Sew. 33, cc. x, 4 dc ref. of the Purification may be trans-
7» Cfr. can. 1247, 83. f erred.
TT Not Candlemas* day, because 78 The compiler of the St. Louis
the blessing of candles always takes Ordo, 1918, has wisely inserted this
place on Feb. 2, whereas the feast list (p. 22).
jle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
364 ECCLESIASTICAL PERSONS
unitae " are two dioceses which have been combined, but
so that both remain intact and none is subject to the
other.78
reports to the holy see
Can. 340
§ 1. Omnes Episcopi tenentur singulis quinquenniis
relationcm Summo Pontinci facere super statu dioe-
cesis sibi commissae secundum formulam ab Apo-
stoiica Sede datam.
§ 2. Quinquennia sunt fixa et communia, atque com-
putantur a die Ianuarii 191 1 ; in primo quinqucnnii anno
relationem exhibere debent Episcopi Italiac, insularum
Corsicae, Sardiniae, Siciliae, Melitae, et aliarum mino-
rum adiacentium; in altero, Episcopi Hispaniae, Portu-
galliae, Galliae, Belgii. Hollandiae, Angliae, Scotiae et
Hiberniae, cum insulis adiacentibus ; in tertio, ceteri
Europae Episcopi, cum insulis adiacentibus; in quarto,
Episcopi totius Americae et insularum adiacentium;
in quinto, Episcopi Africae, Asiae, Australiae et insula-
rum his orbis partibus adiacentium.
§ 3. Si annus pro exhibenda relatione assignatus inci-
derit ex toto vel ex parte in primum biennium ab inito
dioecesis regimine, Episcopus pro ea vice a conficienda
et exhibenda relatione abstinere potest.
On the last day of December, 1909, the S. C. Consisto-
rialis issued a decree (" A remotisshna") regulating the
visitatio ad limina and the reports to be made in connec-
tion therewith. Canon 340 relates only to the latter.8**
It is a new law, in so far as the report is to some extent
detached from the visitatio, and in regard to details.
T9 Can. 1419, 30. bo A. Ap. $*, U, p. ij if.
5 ■ ifSnlj? Original from
Ogle
UNIVERSITY OF WI5CO-N5I
-'
CANON 340 365
What the canon means by " communia" (general) ap-
pears from the contrary ; i. e.t the dates fixed oblige all
the bishops comprised under a certain year, so that no
exception or further specification is required. The year
for our American bishops commenced on the first of
January, 1914, and ended the last day of December, 1914,
so that the next year in which they will have to make
a report is 1919; then 1924, etc.
§ 3 says if a bishop has been governing his diocese
only for two years when his turn comes for making his
report to the Holy See, he may omit it. The reason is
evident. A new bishop is hardly able to know the state
of his diocese, especially if he has not yet visited all por-
tions of it.
The decree of S. C Consist, prescribes that the quin-
quennial report be made in Latin. The " Ordo servan-
dus in Relatione de Statu Ecclesiarum " (fifteen chapters
with 150 points) specifies what the report must contain,
viz.: a survey of the material and spiritual state of the
diocese, comprising the clergy, religious and pious insti-
tutes, and the faithful at large."
v1sitatio ad limina
Can. 341
§ i. Omnes et singuli Episcopi eo anno quo rela-
tionem exhibere tenentur, ad Urbem, Beatorum Apo-
stolorum Petri et Pauli sepulcra veneraturi, accedant et
Romano Pontifici se sistant.
§ 2. Sed Episcopis qui extra Europam sunt, permit-
titur ut alternis quinquenniis, idest singulis decenniis,
Urbem petant.
»i A. A p. s., n, 17 ff.
< ".vmiIp Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
366 ECCLESIASTICAL PERSONS
Can. 342
Episcopus debet praedictae obligationi satisfacere
per sc vel per Coadiutorem, si quern habeat, aut, ex
iustis causis a Sancta Sede probandis, per idoneum
sacerdotem qui in eiusdem Episcopi dioecesi resideat
The tombs of the princes of the Apostles were from the
earliest times visited by the faithful and their pastors
as a sign of veneration for the two founders of the Roman
Church, Cajus, a presbyter of Rome, told the heretic
Proculus: " I can show you the trophies of the Apos-
tles." Two epitaphs testify to the custom of sacred visita-
tion, notably that of Abercius, bishop of Hieropolis in
^-Phrygia, who came to Rome to venerate the tombs of the
Apostles towards the end of the second century.8* Of
course, the Italian bishops, who were immediately sub-
ject to the Bishop of Rome as their metropolitan, were
more numerous and regular in making these visits. But
it is also true that missionary bishops were sometimes
summoned to Rome, whence they had received their mis-
sion. Since Paschal II (1099-1118) the metropolitans
had to promise at the reception of the pallium to visit
the sacra limina at stated intervals.88 Later on all the
bishops who were either directly or indirectly consecrated
by the Pope had to comply with this obligation.8* A
more uniform discipline was ushered in when Sixtus V,
in his Constitution " Romanus Pontifex," Dec. 20, 1585,
ruled that all patriarchs, primates, metropolitans, and
bishops should present themselves at regular intervals
before the Roman Pontiff, to give counsel and make sug-
gestions conducive to the betterment of ecclesiastical
02 Armellin!, Letioni di Arch** »3 C 4, X. I, 6.
olooi* Cru/iona, 1898, p. go f; p. 84 C. 13, X. I, 33; C. 4. X. II.
235. M.
jle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 343 367
conditions. Benedict XIV directed also the prelates and
abbots nullius to make the ad limina visit.85 He permit-
ted bishops who were lawfully prevented from making
the visit personally, to send a representative, — either a
secular or regular dignitary, or a priest in good standing.
This representative must report the reason why the bishop
cannot come. Titular bishops are not obliged to make the
visit, because the text binds only those who have to
make a report.
In Rome, the bishops, after visiting the two churches of
St. Peter (Vatican) and St. Paul (Via Ostiense), must
present themselves in the sacristies of the two basilicas
and inscribe their names in a book kept for that purpose.
The relatio status must be handed in at the Apostolic
Chancery (Via Vittore Emmanuele) to the S. C. Congre-
gatio Consistoralis.
During their visit," the bishops must also present
themselves to the Sovereign Pontiff, in order to pay their
respects to the Vicar of Christ and, as stated above, to
offer their counsels if asked for.
diocesan visitations
Can. 343
§ 1. Ad sanam et orthodoxam doctrinam conservan-
dam, bonos mores tuendos, pravos corrigendos, pacem,
innocentiam, pietatem et disciplinam in populo et clero
promovendam ceteraque pro ratione adiunctorum ad
bonum religionis constituenda, tenentur Episcopi ob-
ligation visitandae quotannis dioecesis vcl ex toto vel
■"■
85 " Quod sancta," Nov. 2$, 1744. that the S. C. Consist would now
«• The Irish bishops, by indult admit that privilege, although can.
of the S. C Cone, May ao, ifiji, 60 does not declare it null ud
have to make the visit only every void.
tea years* but we scarcely believe
>Ie
v ,1,., Original from
UNIVERSITY OF WISCONSIN
-'
■
pi
-
368 ECCLESIASTICAL PERSONS
ex parte, ita ut saltern singulis quinquenniis universam
vel ipsi per se vel, si fuerint Legitime impediti, per
Vicarium Generalem aliumvc lustrent.
§ 2. Fas est Episcopo clericos duos etiam a Capitulo
si vc cathedral! sive collegiali sibi adsciscere visitationis
comites atque adiutores ; eosque, quos maluerit, cligcre,
reprobato quocunquc contrario privilegio vel consue-
tudine.
§ 3. Si obligations de qua in § 1, Episcopus graviter
defuerit, servetur praescriptum can. 274, nn. 4, 5.
Can. 344
§ 1. Ordinariae episcopali visitationi obnoxiae sunt
personae, res ac loca pia, quamvis exempts, quae intra
dioecesis ambitum continentur, nisi probari possit spe-
cialem a visitatione exemptionem fuisse ipsis ab Apo-
stolica Sede concessam.
§ 2. Religiosos autem exemptos Episcopus visitare
potest in casibus tantum in iure expressis.
Can. 345
Visitator, in sis quae obiectum et finem visitationis
respiciunt, debet paterna forma procedere, et ab eius
praeceptis ac decretis datur recursus in devolutivo tan-
tum ; in aliis vero causis, etiam tempore visitationis,
Episcopus ad normam iuris procedat necesse est.
Can. 346
Studeant Episcopi debita cum diligentia, sine inutili-
bus tamen moris, pastoralem visitationem absolverc:
caveant, ne superfluis sumptibus cuiquam graves one-
rosive sint, neve ratione visitationis ipsi aut quisquam
suorum pro se suisve dona quodvis genus petant aut
oogle
k ,|rt Original fro rn
UNIVERSITY OF WISCONSIN
Q
CANON 346 369
accipiant, rcprobata qua vis contrana consuctudine ;
circa vero victualia sibi suisque ministranda vel pro-
curationes et cxpensas itincris, servetur legitima loco-
rum consuetude.
From the Codex Canonum Ecclesiae Africanae we
learn that at the beginning of the fifth century synods
ruled that prelates should visit their privinces annually.87
A council of Tarragona, 516, commanded the bishops
on the occasion of this visit to see especially to the repairs
of the churches.88 In the Frankish Kingdom, especially
under Charles the Great, the bishops were accompanied
by a count (comes) as protector and aid, who took cog-
nizance of and decided cases of a more or less civil
nature.89 A decretal of Innocent IV (1252) forbids
avaricious exactions, allowing the necessary victuals but
no gifts or donations of any kind.00 These rules were
renewed by the Council of Trent, from which our text
is almost verbally taken.*1
(1) The episcopal visitation must be made by the
bishop personally, unless he is prevented by a legitimate
obstacle, e. g., sickness, or duties of an urgent nature, in
which latter case the visit may be entrusted to the vicar-
general or some other trustworthy priest.
(2) The whole diocese must be visited within the
space of five years, which is a modification of the Triden-
tine law.
(3) Not more than two companions are allowed, who
may be taken from the number of canons, although these
might remonstrate against the exercise of this right of
87 Nn. 53. 73, 94t Mami, Coll., »e Regino of Prfim, Dt Syno-
III, 743» 775» 799- dalibut Cousis. I II., c. a ff.
as Cf r. c. 10 I., C. 10, q. i; (To- »0C, i, | 5, 6% III, *o.
ledo synod, 633. cc 35 f-). 01 Se««. *4. c. 3 de ref.
jle
Original fro m
UNIVERSITY OF WISCONSIN
370 ECCLESIASTICAL PERSONS
the bishop ; M and the Code reprobates any contrary privi-
lege or custom.
(4) The persons, things, and places subject to the dio-
cesan visitation are:
(a) The whole secular clergy of the diocese, also
cathedral and collegiate chapters, in all matters spiritual
and temporal.08 The laity, too, may, if the Ordinary
judges it expedient, be examined about things pertaining
to faith and morals, the administration of the Sacra-
ments and the care of the church property. The church
trustees in particular are liable to be questioned.
All religious, not exempt, of both sexes, are amenable
to the canonical visit; and also exempt religious who are
pastors of souls, in all matters concerning their pastoral
conduct."
(b) The places which should and may be visited are
the cathedral church, the parish churches, and public and
semi-public oratories not in possession of or administered
by exempt religious. Oratories which, though incor-
porated into an exempt religious body, are served by a
secular priest, are subject to visitation.90
The Bishop may also visit any parish church held and
administered by exempt religious, and inspect the bap-
tismal font, the confessionals of the pastor and his as-
sistants and the altar of the Blessed Sacrament.90 He
may visit the meeting places or chapels or confraternities
or sodalities of lay persons, even though they are erected
in churches belonging to exempt religious ; HT also hos-
..-.
92 Richter, Trid., p. 155, nn. 34, 90 S. C. Cone, April 5, 1631,
3S, 37. 38- Curiensi; June 23, 172$ (Richter,
91 Trid., Scsa. 6, c. 4 de icf. /. c, n. 6).
(Richter, /. c, p. 30). 97 Trid., Sess. 7, c. 7 dc ref.;
94 Can. 631, I 1. S. C. Cone, Sept. 30, 1730 (Richter,
ob Trid., Sesa. 7, c. 8 de ref. I. c, p. 53. n- ">>•
(Richter, /. c. p. 53, n. 3).
ioi >gle
Original fro rn
UNIVERSITY OF WISCONSIN
CANON 346 371
pitals and orphanages and schools whicn are maintained,
even by exempt religious, as parish or elementary schools.
High schools and colleges conducted by exempt reli-
gious are liable to canonical visitation by the Ordinary
only concerning their religious and moral training.98
Cemeteries common to the faithful and exempt reli-
gious are subject to episcopal visitation, whilst cemeteries
exclusively reserved to exempt religious are not.89
(c) The things which the bishop should examine and
inspect must be determined by the purpose of the can-
onical visit, as outlined in the first clause of canon 343,
§ 1, and mentioned in the Pontificate Romanum.* The
second point : " That he may know how the church is
administered spiritually and temporally," offers an op-
portunity to investigate:
(a) Whether the Blessed Sacrament is properly kept
and in the right place ; whether there is a sanctuary lamp ;
whether pyxis, monstrance, lunula, etc., are of the pre-
scribed material, kept clean and free from verdigris,
whether the sacred species are changed with sufficient
frequency, etc.
(/3) Whether the altars are made according to rubrics,
and if images or statues are erected upon them, whether
these are in conformity with the mind of the Church and
in good taste, and especially whether any extraordinary
images or representations disapproved by the Church are
exposed for veneration.
(y) Whether the baptismal font is properly and con-
veniently kept and the holy oils can be easily found and
are preserved in a decent place.
(8) In the sacristy he should observe the neatness and
88 Leo XIII, " Romanos Pontv t» Leo XIII, ibid,
fiat," May 6, 1881; can. 1382. 1 Pars III: Ordo ad Vistiandu
Parochial.
a
J 4 Original from
' K H We UNIVERSITY OF WISCONSIN
372 ECCLESIASTICAL PERSONS
color of the sacred vestments, the chalices and other
sacred vessels.
(*) The confessionals should be examined as to their
grates, and also with regard to veils, stole and surplice,
where these are prescribed, etc.2
We come now to what the Code says about exempt
religious*
(i) Note that exemption from canonical, or rather
episcopal, visitation is now comprised under the general
concession of exemption, as has been more than once de-
cided by the S. R. Rota,4 but is valid only if granted by a
special concession of the Apostolic See, as canon 344, § 1
clearly emphasizes. Wherefore no cotnmunieatio privi-
legiorum may be invoked by exempt religious as to the
canonical visitation.
(2) However, as far as the exempt religious them-
selves are concerned, the bishop is entitled to visit them
only in cases expressly stated in the law. These cases,
as far as the diocesan visitation is concerned, were partly
mentioned above. They are :
(a) The parish churches administered by exempt reli-
gious, including the Blessed Sacrament, the altar, the tab-
ernacle, the baptismal font and holy oils, the confession-
als, the pulpit, the sacristy, the belfry with the bells be-
longing to the parish, the cemetery, etc.6
(b) The oratories or chapels of confraternities whose
members are lay or secular persons, even though adminis-
tered by exempt religious;0
P
sCf. IWbosa, De Officio et Po- Gregory XV, " Inserutabili;" Leo
testate Episcopi, P. HI, allcg. 73. XIIF, " Romanos Pontifiees," May
nn. 63 ff. 8, if Si.
> Cfr. can. 615 f. 5 " Firmandis," 87.
* Harboaa, /, c, n. 6; Benedict c " Inserutabili; " Richter, I. A»
XIV, "Ad miliianth," March 30, p. 53, n. 10.
1773; " Firmandis," Not. 6, 1744;
>Ie
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 346 373
o>
a
(c) The schools conducted by exempt religious, except
the secondary schools, which are subject to visitation only
as far as religious and moral education is concerned;1
(d) Divine worship, that it be carried out according
to the sacred canons, and no superstitious practices
tolerated, even in the churches and oratories of exempt
religious.8
Canon 345 lays down the modes of procedure when
correction of abuses becomes necessary. There are two
such modes, the paternal and the judiciary. The former
consists in secretly admonishing the delinquent. This
may be employed towards the clergy as well as the faith-
ful. But it would not be paternal to threaten penalties in
order to compel one to reveal crimes or transgressions,9
or to make a public admonition serve as a preliminary
to criminal procedure.10
Much less in keeping with the bishop's office as a
father would be the infliction of ecclesiastical censures.
Penances which have no judiciary character, e.g., a re-
treat, would not exceed paternal correction. If the bishop
proceeds paternally, no appeal is allowed, because no
sentence has been given; but recourse is permitted in
devolutivo ; that is to say, the correction must be accepted
and the injunctions carried out, until the superior judge
reverses the sentence.
Metropolitans should not accept any recourse against
a bishop's paternal procedure as long as the latter has
remained within the limits prescribed by law.11
What are the aliae causae mentioned in canon 345?
We presume them to be such as do not fall directly under
-
T Can. 138a. 11 Trid., Seas. 13, c 1 de ref.;
8 Can. 1261. .Richtcr, J. ft, p. 71, d. 1 f.; Bene-
• Barbosa, /. c, P. Ill, alle*. 73. diet XIV, "Ad miUtantis.' March
n. 29. 30, 1742, || 6, 10, 19, ji.
10 Can. ajoj.
Q
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
374 ECCLESIASTICAL PERSONS
the objects of an episcopal visitation, especially those
which require a formal trial, e. g., the removal of a
parish priest, the procedure against pastors refusing to
comply with the law of residence, although a mere pre-
cept concerning that point would not exceed the paternal
method ; l2 lastly, all criminal cases requiring trials.
Can. 346 repeats the old and oft inculcated duty not
to make the episcopal visitation disagreeable for those
concerned, and more especially establishes the remunera-
tion allowed by law.13 The Code permits the procura-
tiones and expenses of the journey. By procurations
are understood food and lodging. No prescription is ad-
missible against this lawful claim of the visiting bishop.14
However, those who would have to furnish the procura-
tiones may pay their equivalent in money.15 With the ex-
ception of this support, and the expenses of the journey,
neither the bishop nor his companions are allowed to
demand or accept any gifts or donations.
It has been decided by the S. C. Concilii that nuns
(tnoniales), who have no regular ecclesiastical benefice,
are not obliged to offer the procurations to the visiting
bishop.1* However, as the Code says, custom may in
that case admit the acceptance of a decent support. But
on the other hand the canons as well as legal decisions 1T
admonish the bishop not to be too exacting. Now-a-days
there is not so much danger of excesses in this as there
used to be.
lzBarbosa, /. c, n. 37. JO S. C. Cone. Not. 13. 163%
lflC. 16, X, r, 31; c. aj, X, III, (Richter, Trid., p. 333. n. 9).
30: cc 1 U 6*. Ill, 30; Trid., 17 Ricbter. I. c. p. 335. n. 17;
Sess. 24, c. de ref. this decision obliges: the bishop to
i*C. 16, X, II, 26 de praescript. restitution.
15 Barbosc, 1. c., n. 56.
Q
§le
£ " ^ v -iL-. Original from
UNIVERSITY OF WISCONSIN
CANON 347 375
precedence
Can. 347
In suo territorio Episcopus praecedit omnibus
Archiepiscopis ct Episcopis, exceptis Cardinalibus, Le-
gatis Pontificiis et proprio Metropolita; extra terri-
torium serventur normae traditae in can. 106.
titular bishops
Can. 348
§ 1. Episcopi titularcs nullara possunt cxerccrc po-
testatern in sua dioecesi, cuius nee possessionem ca-
piunt.
§ 2. Decet ex caritate, citra tamen obligationem, ut
aliquando Missae sacrificium pro sua dioecesi appli-
cant.
episcopal privileges
Can. 349
§ x. Ab accept a authentica notitia peractae canon icae
provision-is, Episcopi siv* residentiales sive titulares:
i.° Praeter alia privilegia quae suis in titulis recen"
sentur, fruuntur privilegiis de quibus in can. 239, § .,
nn. 7-12; nee non n. 2, etiam quod spectat ad casus
Ordinario loci reservatos; n. 3, cum consensu saltern
praesumpto Ordinarii loci ; n. 4, dummodo non tenean-
tur celeb-rare in cathedrali; nn. 5, 6, ritibus tamen ab
Ecclesia praescriptis ;
2.0 Ius habent deferendi insignia episcopalia ad nor-
mam legum liturgicarum.
§ 2. A capta vero possessione Episcopi residentiales
habent praeterea ius:
§le
v ,|rt Original from
UNIVERSITY OF WISCONSIN
Q
"-.
376 ECCLESIASTICAL PERSONS
1." Pcrcipicndi reditus mensae episcopalis;
2.0 Concedendi indulgentias quinquaginta dierum in
suae iurisdictionis locis ;
3.0 Elevandi in omnibus ecclesiis suae dioecesis
thronum cum baldachino.
Can. 349 enumerates some of the privileges and rights
of bishops. The following they hold in common with
cardinals: the right of a portable altar,18 the right to
celebrate Mass on board of vessels, the right of applying
the indulgences of a personally privileged altar, the right
to gain indulgences in their private chapels, and the right
to bless the people everywhere. As to the celebration of
Mass on board a vessel the conditions are : that the sea
be calm and the ship not rolling, that it be far from the
coast and another priest or deacon be present to hold the
chalice in case of great agitation of the ship.18
As to the privileges mentioned under n. 2, canon 239,
§ 1, the confessor chosen by the Ordinary for himself and
his dependents may also absolve from cases which the
same Ordinary has reserved to himself; and with regard
to n. 3, concerning preaching in a strange diocese, the
consent of the Ordinary must at least be presumed, 1. e.t
it must be probable from common indications that he is
not unwilling to grant it, or known that he never refused
his consent before when asked for it. As to n. 4, Christ-
mas would be concerned and also Holy Thursday ; but on
the latter day the bishops generally bless the holy oils.
On Christmas day, according to can. 338, § 3, they should
not be absent from their cathedrals, but this docs not
exclude the use of the privilege about the masses; at
least a bishop may celebrate two masses or have them
ItS, R. C, June 8, 1896. 19 Cfr. Gopfcrt, Moral-Tktologit,
1898, III, 138.
oogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 348
377
—
■
celebrated in his private chapel. About nn. 5 and 6, the
bishops must follow the ritual in blessing devotional
articles and erecting stations of the cross.
The episcopal insignia are: the mitre, the crosier or
pastoral staff, the pectoral cross, the pontifical ring,
dalmatics and tunicella, gloves and sandals.30 Leo XIII
added the skullcap of violet color for all." The crosier
is certainly the oldest and most significant episcopal orna-
ment, in use since the fifth century, whilst the mitre
( taenia = a priestly band ) only dates to the tenth cen-
tury, but is mentioned in several papal letters and in the
decretals." Besides, the residential bishop's name must
be mentioned in the canon.
A residential bishop, from the day that he takes pos-
session of his diocese, enjoys the reditus mensae episco-
palis™ which means the income of the bishopric of which
he is the sole administrator. This income comprises the
salary proper, the cathedraticum, the procurations, the
synodicum, etc., or whatever belongs to him as chief
pastor of the diocese, of whose table he is to live." The
bishop has the right of erecting a throne with a bal-
dachino or canopy over it in every church of the diocese,25
even those of exempt religious.
20 Cf. c. 15, X, III. 1: c. 7. x. 1,
8; cf. JafW, Reg Pontf., ed. 2, :88a.
where since the 10th century many
privileges occur to that effect.
21" Praeclarc," Feb., i388.
22 Cf. Can. Bncycl,, under the
various catchwords; Smith-Chelt-
ham, Dictionary of Christian An-
tiquities, $. v. " Mitre," " Staff."
21 Mtnta r pit r o f-al is occurs since
the isth century; and in the sense
of property or support, since the
9th century; see Du Cange, Glot-
sariun. s, v, " Mensa."
24 I Cor. iof ax; cfr. Barbosa,
I. c, P. Ill, alleg. 95, n. 67: Mar-
tin V, ■ Inter ennctas " (Denzin-
ger. Enchiridion, n. 504).
2B Barbosa, Summa Decis. Apost.,
e. v. " Baldachinum."
►ogle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER II
COADJUTORS AND AUXILIARY BISHOPS
1. Bishops had helpers in the discharge of their pas-
toral duties as early as the third and fourth centuries.
Thus St. Augustine is said to have been the coadjutor
of Valerius. This custom, humane as it is,1 had conse-
quences against which the law had to guard, especially
that two bishops should rule one and the same diocese.
Therefore resort was had to the expedient of constituting
a visitator or quasi administrator. For various reasons,
especially to prevent a troubled election and to preserve
episcopal sees against the invasion of territorial usurpers,
it was often found necessary to appoint a coadjutor for a
bishop yet living and active, whose see the coadjutor
should occupy after the death of the incumbent. This
practice was acknowledged by the Popes, who reserved
the right of granting such coadjutors.1
2. In the Orient as well as in the Occident there was a
species of bishops called chorepiscopi (country bishops),
who were consecrated and exercised episcopal functions
often to the detriment of the diocese.8 At the end of
the fourth century the chorepiscopi were supplanted by
visitators. In the Occident, especially in France, " coun-
try bishops," whose jurisdiction often appears doubtful,
l According to tfae saying: " af- 35, c, 7 de ref.; Benedict XIV, Dt
flicto afflictio non est addenda," c. Synod. Diocc, 13, 10, is ff.
3, c 7, q. 1; c. 5. X, III, 6. * Cf. Cone. Encye,, c. 13; SorUc,
a C, un. 6", III, 5; Trii., Seas, c. 6; Laodic., c 57.
378
*Ie
I , Original from
UNIVERSITY OF WISCONSIN
CANON 350 379
became more generally known in the eighth century, and
in the following century incurred the censure of Pseudo-
Isidor, whose influence dealt a deadly blow to the institu-
tion.
3. A last kind of quasi-bishops were those who owed
their canonical position to the invasion of the Saracens,
especially in Spain and the Orient, where many episcopal
sees and cities were seized by the Islamic hordes and the
bishops driven away. These exiled bishops sought refuge
with other bishops, who often employed them in the dis-
charge of diocesan functions. In Germany such refu-
gees were commonly known as episcopi titulares, annu~
lares, tiHllatenses, auxiliares, suffraganei, vicarii in
pontificalibus. Their appointment was reserved4 to
the Holy See by Gement V. Furthermore it must be
remembered that after the later crusades many bishops,
though not resident at their sees, were ordained to
bishoprics retained by schismatics or infidels ; such
bishops were called " episcopi in partibus infidelium." B
The Code distinguishes two kinds of coadjutors, vis.:
coadjutors proper and auxiliaries. A coadjutor proper
may be given to the see or to the bishop personally.
However, we must confess that we have not so far read
in any author of a coadjutor given to a see, unless he be
identified with the coadjutor cum iure successionis.
Can. 350
§ z. Unius Romani Pontificis est Episcopo Coadiu-
torem constituere.
§ 2. Coadiutor dari solet personae Episcopi cum iure
successionis ; sed nonnunquam datur quoque sedi.
4C. 5, Clem. I, 3. partibus"; Aichner, /. c, | 124;
6 Since 1882 called simply "in v. Scherer, K.-R., I, p. 597.
§le
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
380 ECCLESIASTICAL PERSONS
§ 3. Coadiutor, datus pcrsonae Episcopi sine hire
successionis, special! nomine dicitur Auxiliaris.
The principle laid down in § 1 was formulated by
Boniface VIII and adopted by the Tridentinc Council,8
which also allowed coadjutors to abbots. Benedict XIV
granted the bishops of Ireland the right to ask for a co-
adjutor if by reason of advanced age or infirmity they
were unable to comply with the law of residence.7
However, circumstances like those arising at Cologne *
and elsewhere in the thirties of the last century might
prompt the idea of giving a coadjutor to the see, not to
the person of the bishop, especially if he is in the hands
of the enemies of the Church. A coadjutor is supposed
to be given to a see only in case it becomes vacant; be-
cause the contrary assumption that two bishops can
hold one and the same see at the same time, would be
uncanonical; one must be titular of another see, other-
wise the connubium spirituole would be jeopardized.
E
rights of coadjutors
Can. 351
§ 1. Iura Coadiutoris dati personae Episcopi desu-
mantur ex litteris apostolicis, quibus constituitur.
§ 2. Nisi aliud in his litteris caveat ur, Coadiutor qui
datur Episcopo prorsus inhabili, habet omnia iura ac
officia episcopalia; ceteri tantum possunt quantum
Episcopus eisdem commiserit.
§ 3. Quae Coadiutor potest et vult exercere, Episco-
pus habitualiter alii ne deleget.
• C. um. 6", III, 5; Trid., Sen. e Brick, Gttch. ,!. kath. Kircht in
as, c 7 de rcf. Deutjchland im XIX. Jakrh., 1889,
x"Grm*M" Aut. 15, 174'. 18. II, 371.
§le
% ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 352 381
§ 4. Coadiutor, iusto impedimento non detentus, de-
bet, quoties fuerit a Coadiuto requisitus, pontificalia et
alias functiones obire, ad quas Episcopus ipse tenere-
tur.
Can. 352
Coadiutor sedi datus potest in territorio ea quae sunt
ordinis episcopalis exercere, except a sacra ordinatione;
aliis in rebus tantum potest* quantum eidem a Sancta
Sede vel ab Episcopo fuerit commissum.
These two canons state the powers of coadjutors.
These powers depend first on the Apostolic letters of ap-
pointment, and secondly on the condition of the bishop in
need of assistance. If the latter is able to perform his
episcopal duties, his will must be respected. On the
other hand, it would be unnatural and, as it were, offen-
sive to the Holy See, if a bishop having a coadjutor
would call in another bishop to perform pontifical func-
tions which his coadjutor is able and willing to perform.
A bishop cannot punish or repeal acts which his co-
adjutor has lawfully performed.8
A coadjutor, unless permitted to do so by virtue of the
Apostolic letters or the consent of his bishop, should not
use the pastoral staff, because this is the special sign of
jurisdiction; but he may bless the people, like the bishop.10
Can. 353
§ 1. Quilibet Coadiutor, ut canonicam sui officii pos-
sessionem capiat, necesse est litteras apostolicas osten-
dat Episcopo.
§ a. Coadiutor cum futura successione et Coadiutor
t S. C. Cone., Feb. 18, !'•:.■; 10 Barbosa, Summa Dteis. Apost,
Wera*, /. c.§ H, p. 1009 (ed. 1.). *. r. "Coadjutor," nn. 3, 10.
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
Q
Q
382 ECCLESIASTICAL PERSONS
sedi datus debent praeterea easdem ostendere Capi-
tulo ad normam can. 334, § 3.
§ 3. Si Episcopus eum in sta turn incident ut elicicndi
actus human! sit impos, praetermisso pracscripto § i,
solum praescriptum § 2 ab omnibus Coadiutoribus
scrvctur.
This canon appears to confirm the general teaching of
canonists u that a coadjutor with the right of succession,
who is ordinarily elected by a chapter, is given by the
Roman Pontiff only upon the previous consent of that
chapter. But the Code in canon 350, § 1, is silent about
that consent, and in the U. S. it is of little practical
value. However, in our country, too, a bishop coadjutor
with the right of succession must present his papers of
appointment to the assembled consultors, who take the
place of the chapter.12 To the bishop the coadjutor must
show the Apostolic letters only if the former is mentally
and physically able to perform human acts, — in other
words, as long as he realizes the meaning of the ceremony.
residence
Can. 354
Coadiutor quilibet obligatione tcnetur, sicut Episco-
pus, residendi in dioecesi, e qua, extra tempus vaca-
tionum, ad normam can. 338, ipsi non licet, nisi ad breve
tempus, Coadiuto permittente, discedere.
What is meant by " a short time " may be deduced
from can. 405, § 5 f ., where mention is made of a shorter
11 Benedict XIV, Da Syn. Diotc , ia Can. 427.
XI11, c. 10, n. 24.
oogl
Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 355 383
time than a week in connection with residence. Hence,
in round terms, we may say, about six days.
Can. 355
§ 1. Coadiutor cum iure succession is, vacante sede
episcopali, statim evadit Ordinarius dioecesis, pro qua
fuerat constitutes, dummodo possessionem legitime
ceperit, ad normam can. 353, §§ 2, 3.
§ 2. Cum Episcopi munere exspirat Auxiliaris offi-
cium, nisi aliud in litteris apostolicis caveatur.
§ 3. Si Coadiutor datus fuerit sedi, eius officium
etiam sede vacante perdurat.
This canon states how a coadjutorship is ended; viz.:
(1) If the episcopal see becomes vacant the coadjutor
appointed for that diocese becomes Ordinary of the same
immediately after taking canonical possession thereof;
(2) With the office of the bishop that of the auxiliary
also expires, unless provided otherwise in the Apostolic
letters; (3) If the coadjutor was given to the see, his
office continues during the vacancy of the diocese.
oogle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER III
DIOCESAN SYNODS
The first diocesan synod, or gathering of the clergy
of a diocese of which we have knowledge, was held by
Pope Siricius about 387 in Rome.1 The holding of synods
became customary in the Eternal City, and Innocent III
was wont to convoke a synod twice or three times a week.
These synods were, however, rather forerunners of the
consistory, to which foreign bishops were admitted. In
the Frankish kingdom diocesan synods were not infre-
quent in the sixth century, to judge from the seventh
canon of the synod of Auxerre, a. d. 578, which set up the
rule that in the middle of May all the priests, and on the
first of November all the abbots should meet annually in
the episcopal city.2 These synods turned out to be mixed
meetings in which both ecclesiastical and civil matters
were debated. The fourth Lateran Council (1215)
ordered synods to be held annually to promulgate the
decrees of provincial councils to the clergy.1 The same
decree, with the addition of disciplinary injunctions con-
cerning profession of faith and the appointment of
synodal judges and examiners, was adopted by the Coun-
cil of Trent* The pseudo-council of Pistoja, 1786,
1 Benedict XIV, .'»«• Syn. Dioie., provincial council than a diocesan
I. x, 6. The Council of Alexin- synod.
dri», 320/331, mentioned by Wernx t Hefele, J. C„ III, 38 f.
(II, 1096) was attended by nearly ■ C. a$, X, V, 1.
100 bishopi (Hefele, Conc.-Gesch., < Sess. 34, c. a; 15, c. a; 34, C,
It 3*5). which sounds more tike a 18 de ref.
384
% .J,., Originalfrorn
UNIVERSITY OF WISCONSIN
■
pi
CANON 356 385
adopted certain false propositions concerning the im-
portance and authority of synods and the power of parish
priests, which were condemned by the Church.5
Can. 356
§ 1. In singulis dioecesibus celebranda est decimo
saltern quoque anno dioecesana Synodus, in qua de its
tantum agendum quae ad particulates cleri populique
dioecesis necessitates vel militates rcferuntur.
§ 2, Si Episcopus plures dioeceses aeque principali-
ter unitas regat, aut unara habeat in titulum, alteram
aliasve in perpetuam administrationem, potest unam
tantum dioecesanam Synodum ex omnibus dioecesi-
bus convocare.
Can. 357
§ 1. Synodum dioecesanam convocat eique praeest
Episcopus, non autem Vicarius Generalis sine mandato
speciali nee Vicarius Capitularis.
§ 2. Celebranda est in ecclesia cathedrali, nisi aliud
rationabilis causa suadeat.
The date from which the ten years are to be reckoned
is not explicitly stated. However, since the Code went
into effect in 1918, it appears reasonable to take this year
as the starting-point. As it is very probable that a
plenary council will be held in this country in the near
future, if conditions permit, diocesan synods could be
conveniently held soon thereafter and repeated every ten
years. Most probably further instructions will be issued
by the Holy See on this ^oint.
The matter or subjects to be treated at the diocesan
B Pins VI, " Anctorem fidti," Aug. s8, 1794, nn. p-11.
gle
Original fro ni
UNIVERSITY OF WISCONSIN
386 ECCLESIASTICAL PERSONS
St
a
synod are the needs and welfare of clergy and people.
They are outlined in the classic work of Benedict XIV
on the diocesan synod. He mentions:
(i) Public prayers, allocutions, and sermons;
(2) The decrees to be read and the profession of faith
to be pronounced (according to the formula given in *he
Code) ;
(3) The election of synodal judges and examiners and
the appointment of diocesan officials;
(4) The cases to be reserved (now no more than three
or four) for atrocious crimes;
(5) The cadiedraticum, taxes, stole fees, etc., to be
determined ;
(6) The alms for mass-stipends and abuses concern-
ing them ;
(7) Rendering of an account for the diocesan
seminary.0
We might add pastoral conferences, the administration
of church property, and, above all, the inculcation of the
new Code.
B
As to § 2 of canon 356, observe that the S. C. Cone,
formerly allowed two synods to be held for each of
several dioceses aeque principaliter united (e.g., Viterbo-
Toscanella ) J Benedict XIV, however, wished that only
one synod be held for such dioceses (e. g.t Giovinozzo-
Terlizzi, now Molfetta in Apulia), but alternately in the
one and the other ; 8 which is not excluded by the Code.
Can. 357 states the authority that convokes a synod is
the bishop who has been confirmed by Rome and taken
possession of the diocese, even though he be not yet
consecrated. If he be a metropolitan he may convoke a
9 L. V, Dt Syn. Diotc. B "*Unigen\t*s," Nov. a6, 1749,
7 Jan. ix, 1789 (Kichter, Trid., p. 1 9;^' Syn. Uicee, I, 5, 3 f.
35. n. 6).
a
jle
( * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 358 387
synod before the reception of the pallium.' We say
that he must have taken possession of the diocese, on
account of can. 334, § 2, which rules that before that
act he is not allowed to take a hand in the government of
the diocese. The name of Ordinary in this case includes
Apostolic administrators, Apostolic vicars, abbots and
prelates nuUius,10 but not vicars-general without a special
commission, nor vicars-capitular, who are entirely ex-
cluded because they can have no mandate."
As to the place, it is becoming that the cathedral
church, as * the mother and head of the other
churches," " be chosen for the synod, although any good
reason may suffice for choosing another. Such reasons
would be repairs in the cathedral church or the holding
of a retreat for the clergy.
Can. 358
§ x. Ad Synodum vocandi sunt ad eamque venire de-
bent :
i.° Vicarius Generalis;
a.° Canonici ecclesiae cathedral is aut consul to res di-
oecesani;
■
3.0 Rector Seminarii dioecesani saltern maioris;
4.0 Vicarii foranei;
5.0 Deputatus uniuscuiusque collegia! is ecclesiae a
Capitulo eiusdem ecclesiae e gremio eligendus ;
6.° Parochi civitatis in qua Sy nodus celebratur;
7.0 Unus saltern parochus ex unoquoque vicariatu
foraneo eligendus ab omnibus qui curam animarum
t Benedict XIV, Dt Sy*. Dioec, 10 Benedict XIV, D* Syn. Diotc.
II. 5; Wernz, /. c., II, p. 1099, who II. ee 10 f.
"■
remarks that the metropolitan ii not 11 Benedict XIV, /. c, c. 8.
allowed to wear the pallium at his it Ibid., I, 5, 6.
archHioceun synod
jle
Original fro ni
UNIVERSITY OF WISCONSIN
388 ECCLESIASTICAL PERSONS
a
actu inibi habeant ; parochus autcm elcctus debet pro
tempore absentiae vicarium substitutum sibi sufficere
ad normam can. 465, § 4;
8.° Abbates de regimine et unus e Superioribus
cuiusque religionis clericalis qui in dioecesi commo-
rentur, designatus a Superiore provincial!, nisi domus
provincialis sit in dioecesi et Superior provincialis in-
teresse ipse maluerit.
§ a. Episcopus, si opportunum iudicaverit, potest ad
Synodum vocare alios quoque et etiam omnes canoni-
cos, parochos, Superiorcs religiosos, imo et singulos
suae dioecesis saeculares sacerdotes, iis tatnen cxceptis
qui neccssarii sunt ne in paroeciis animarum cura desit ;
invitati autem ius suffragii in omnibus habent, perinde
ac ceteri, nisi Episcopus in invitatione aliud expresse
caverit.
Can. 359
§ 1. lis qui ad Synodum venire debent, si legitimo
impedimento detineantur, non licet mittere procurato-
rem qui corum nomine Synodo intersit ; sed Episcopum
de impedimento certiorem faciant.
§ 2. Negligentes Episcopus potest iustis poenis com-
pellere et punire, nisi de religiosis exemptis agatur qui
parochi non sunt.
The text of the two canons is explicit enough, but one
point has surprised us somewhat. It is n. 8 about the
abbates regiminis. For the Council of Trent," strongly
defended by Benedict XIV in his work De Synodo
Dioecesana,14 and again upheld by Leo XIII, " Romanos
Pontifices," had established that only those abbots have
II Sew. 14. c a de ref. i« Lib. Ill, c. i.
jle
v ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 359 389
o
to attend the synod who either exercise the care of souls
as pastors of a parish, or whose monasteries are not
united with a congregation and subject to a general chap-
ter. Hence, since the Benedictines form congregations
and celebrate general chapters, it would follow that the
bishop had no right to call their abbots to the diocesan
synod. But the Code subjects all governing abbots
to the episcopal call. On the other hand the new law
does insist less vigorously on the attendance of exempt
religious exercising the care of souls, whom the old law
strictly obliged to attend. Perhaps the Code wants the
abbots to take the place of their subjects.
In order to make the invitation and will of the bishop
more efficacious, canon 359, § 2, gives the Ordinary the
right to proceed against recalcitrants with ecclesiastical
penalties. These comprise, besides the privation of
active and passive suffrage, excommunication and other
punishments to be inflicted at the good pleasure of the
bishop.10 This procedure affects governing abbots and
exempt religious only if they are actual pastors of
parishes.
Can. 360
§ 1. Episcopus, si id ipsi expedire videatur, oppor-
tune ante Synodum tempore, unam vel plures e clero
civitatis et dioecesis commissiones nominet, seu coetus
virorum qui res in Synodo tractandas parent.
§ 2. Ante Synodi sessiones Episcopus omnibus qui
convocati sunt et convenerunt, decretorum schema
tradendum curet.
Can. 361
Propositae quaestiones omnes, praesidente vel per
15 S. C. Cone, Nov. 19, 1604; Benedict XIV, /. c. III, 1, 10.
gle
f ■ j ^ Original fro ni
UNIVERSITY OF WISCONSIN
390 ECCLESIASTICAL PERSONS
se vel per alium Episcopo, liberae adstantium discep-
tationi in sessionibus praeparatoriis subiiciantur.
Can. 362
Unicus est in Synodo legislator Episcopus, ceteris
votum tan turn consult ivum habentibus ; unus ipse sub-
scribe synodalibus co n stit ut io n ibus ; quae, si in Synodo
promulgentur, eo ipso obligare incipiunt, nisi aliud ex-
presse caveatur.
■
Since the bishop is the sole ruler of the diocese, and
alone endowed with legislative power in foro extenio,
it is evident that all synodal decrees made in conformity
with the common law of the Church need no approbation
or signature on the part of the diocesan consultors, or the
synodal judges, or the rest of the clergy. The clergy,
both secular and regular, must, however, carry out the
decrees made at a synod. Any other theory would per-
vert the true idea of hierarchic jurisdiction.18 At the
same time it may be well to call attention to Benedict
XIV's rule that nothing should be enacted in a synod
which would be detrimental to the privileges of exempt
religious, because these are granted by the Supreme
Pontiff."
16 Benedict XIV, Dt Syn. Diotc, " Auctortm fidgi," Auf. j8, 1794,
XIII. CC. I ff . mi. 9 ff.
uiWd.,. IX, c. 15; Pitw VI,
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
' -» f
■
CHAPTER IV
THE DIOCESAN COURT
A reproduction, on a smaller scale, of the Roman Curia
is the diocesan court, whose importance grows in propor-
tion to the extent of the territory and the number of the
faithful in the diocese.
Can. 363
§ 1. Curia dioecesana constat illis personis quae
Episcopo aliive qui, loco Episcopi. dioecesim regit,
opem praestant in regimine totius dioecesis.
§2. Quare ad earn pertinent Vicarius Generalis,
officialis, cancellarius, promoter iustitiae, defensor
vinculi, synodales indices et examinatores, parochi
consultores, auditores, notarii, cursores et apparitores.
The diocesan court, then, consists of those persons who
assist the bishop or his representative in the government
of the whole diocese. It is made up of the vicar-general,
the official chancellor, the promotor justitiae or diocesan
attorney, the defender of the marriage bond, synodal
judges and examiners, parish consultors, auditors,
notaries, couriers and beadles.
The official, who holds the first place after the vicar-
general and must be chosen by the bishop (can. 1573,
§ 1 ) , is a functionary distinct from the vicar-generaL
His importance will become manifest later. The pro-
motor iustitiae, the couriers and beadles will also be
m
ogle
v %\^ Griginalfrora
UNIVERSITY OF WISCONSIN
392 ECCLESIASTICAL PERSONS
dealt with infra. The latter two offices, being similar to
that of ushers (cf. can. 1591), may be committed to
laymen and one man may hold both.
■
Can. 364
§ 1. Nominatio eorum qui praedicta officia vel mu-
ncra exercent, scripto consignetur, ad normam can.
159-
§2. Nominati vcro dcbent:
i-° In manibus Episcopi iusiurandum praestare de
rnunere fideliter exercendo, quavis personarum accep-
tione posthabita;
2.0 Negotia ad se spectantia sub auctoritate Epi-
scopi tractare ad normam iuris ;
3.0 Secretum servare intra fines ct secundum mo-
dum a iure vel ab Episcopo determinatum.
The appointment of all these officials must be made in
writing, but before entering upon their respective offices
they (1) are bound to swear in the hands of the bishop
that they will discharge their duties faithfully and with-
out human respect; (2) and when performing their duties,
they must do so under the supervision of the bishop, ac-
cording to the norms laid down in the following canons.
Besides they are strictly bound to secrecy within the limits
and to the extent set by law or by the bishop.
The secret they are obliged to keep is called official;
it attaches to their office and hence might also be styled
with a legal term, " privileged knowledge," i. e., knowl-
edge the manifestation of which cannot be legally exacted.
The obligation arising from this secret is based upon the
natural law, but its measure and extent may be deter-
mined by positive norms, which are as broad as the mat-
ed by C jlc
I , Original from
UNIVERSITY OF WISCONSIN
CANON 365 393
ter involved and as wide as the necessity of the office,
which is subject to the law and the will of the superior.
Therefore, if a higher or more stringent reason, e. g.t
the public welfare or a superior command, should de-
mand of these officials the revealing of a secret, they
would have to obey. On the other hand, they are never
allowed to reveal anything to persons not legally, or not
at all, involved or interested, and even to parties inter-
ested they cannot communicate anything which would be
detrimental to another, unless they are legally called upon
to do so by reason of their office.
Can. 365
Dc officiali, promotore iustitiae, defensore vinculi,
iudicibus synodalibus, auditoribus, cursoribus et appa-
ritoribus, serventur praescripta can. 1573-1593; de
Vicario Generali, cancellario aliisque notariis, cxami-
natoribus synodalibus et parochis consultoribus, prae-
scripta canonum qui sequuntur.
The special duties of these several officers are
pointed out partly in the immediately following canons,
partly in the fourth book on legal procedure (cc. 1573-
1593). Here more particular attention is given to the
important office of the vicar-general,
ARTICLE I
THE VICAR-GENERAL
The historical development of this office proceeded by
slow degrees, until it assumed its present status. Not
all countries show the same process of evolution, and
hence it is dangerous to generalize. The former office of
^le
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
394 ECCLESIASTICAL PERSONS
archdeacon, to some extent, resembles that of the vicar-
general. In Rome as well as in other large cities, one of
the deacons was called archdeacon, a title which is al-
ready given to St. Lawrence.1 The office was closely
connected with temporal affairs. The archdeacon grew
in importance as the chorepiscopus decreased in power.
Since the IXth century there was more than one arch-
deacon, especially in larger dioceses, and they gradually
seem to have absorbed the powers of the archpriest, whose
functions concentrated upon baptismal and other spirit-
ual powers. The archdeacons often acted against the
bishop's wishes, and consequently the bishops endeavored
to restrict the archdeacons' aggrandizement of power.
That their power was ordinary, without a mandate or
delegation from the bishop, is nowhere stated in the
Decretals of Gregory IX, although this has been as-
serted.2 The decretals* call him vicar of the bishop,
attribute to him the supervision and correction of the
clergy, care of the sacred vestments, the office of master
of ceremonies, and the visitation of the diocese. But
without a special mandate of the bishop archdeacons can-
not appoint parish priests or pronounce excommunica-
tion, although they may hear the quarrels of single indi-
viduals. This is sufficient concerning the power given by
the Gregorian Decretals to the archdeacon. Soon after-
wards appears an officialis, who may be identified with the
present vicar-general. In the Liber Sextus Innocent IV
(a. d. 1250) laid down rules for this official.4 His power
is not, at least in its full extent, ordinary, otherwise pro-
cedure and appointment to benefices would not be ex-
1 Ltbrr Ponttfiealis, ed. Duchesne, rioned in e. 14, X, I, 31 as con-
1886, I, 155. stituted for different rites and
s Thus Sagrauller, K.~R., 1900, p. languages, but subject to the bishop.
368. 4 Tit ij In 6* de officio vlcarii.
a Cf. tit 33.— A Vicar is meo-
* I , Original from
>gle
UNIVERSITY OF WI5CON5I
■
9
CANON 366 395
cepted therefrom. The bishops meanwhile continued
their opposition to the archdeacons by appointing offi-
ciates foranei, or rural deans, who with the permission
of the bishop exercised a certain jurisdiction in their
districts, but were removable ad nutum. In England
there arose a distinction between the vicar-general, to
whom the administration or voluntary jurisdiction was
entrusted, and the official, who had contentious or
criminal jurisdiction. The Council of Trent5 paid no
attention to this distinction, but curtailed the power of
the archdeacons, who became an appendage of the
cathedral chapters with merely honorary rights, whilst
the vicar-general became more important. Under the
new Code the officialis of former times reappears, as will
be seen in Book IV.
Can. 366
§ 1. Quoties rectum dioecesis regimen id exigat,
constituendus est ab Episcopo Vicarius Generalis, qui
ipsum potestate ordinaria in toto tcrritorio adiuvet
§ 3. Vicarius Generalis libere ab Episcopo designa-
tor, qui eum potest ad nutum removere.
§3. Unus tantum constituatur, nisi vel rituum
diversitas vel amplitude dioecesis aliud exigat; sed,
Vicario Generali absente vel impedito, Episcopus alium
constituere potest qui eius vices suppleat
Whenever the right government of a diocese requires,
the bishop shall appoint a vicar-general to aid him, with
ordinary power, in the whole diocese.
I Trid., S«m. 94, cc. 3, so; Seis. Btnefciariaj, MagontSaci, 1787, P.
25, c. 14 'if rcf. ; concerning the I, lib. II, cc. 7 flF.; Hinschius, Sys-
history cfr. Thomassinus, Vitus ct tern des Koth. KirchtnrtchU, II,
Nova Disciflino circa Bncficia ct 183.
►ogle
^ ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
""
V
396 ECCLESIASTICAL PERSONS
The vicar-general is freely designated by the bishop
and may be removed by him at pleasure.
Only one vicar-general may be appointed, unless a
diversity of rites, or the size of the diocese, should re-
quire more. If the vicar-general is absent or prevented,
the bishop may temporarily appoint another priest in his
place.
This canon enjoins the bishop to choose a vicar-gen-
eral under certain circumstances, namely, when this is
necessary for the right government of the diocese.
Hence the bishop is not absolutely, but only relatively
obliged to appoint a vicar-general. The judgment of the
necessity lies with the bishop himself. If gross neglect
of episcopal duties or protracted absence should cause
considerable damage to a diocese, the Holy See might
force the bishop to accept either a vicar-general or apos-
tolic administrator.8
The appointment of a vicar-general is one of the free
and uncontested rights of the bishop, and in exercising
it he is not bound by the consent or advice of his
chapter or consultors, much less by insinuations or pres-
sure on the part of the civil government, unless the latter
is accorded definite privileges by a concordat.
The bishop can exercise the right of appointing a vicar
only after the papal nomination or provision has been
received.7
The removal of a vicar-general depends entirely on the
good pleasure of the bishop, who may take the office
away, with or without reason, and without any formality,
summary or solemn procedure.
The number of vicars-general is limited to one, except
in dioceses where diversity of rites or territorial extent
«Cf. Werw, 7m* Dtcrtt, II. p. T Cf can. 334, I 3-
s ,1,., Original from
UNIVERSITY OF WISCONSIN
>gk
CANON 367 397
make it advisable to have several. Innocent III decreed
that a bishop should select several vicars for diverse rites
and language-.8 Such vicars resemble auxiliary bishops,
who would be able to celebrate the sacred mysteries in the
respective rite, whilst our Code speaks of vicars-general
only and does not mention diversity of language. The
second reason for having several vicars-general is " ampli-
tudo dioeceseos." Amplitudo has the meaning of exten-
sion as well as greatness or number of parishes and souls.
On that score the metropolitans of most of our American
archdioceses may safely appoint several vicars-general,
who per concomitantiam may divide their labors accord-
ing to linguistic denominations. If a bishop has two
dioceses to govern, either as two sees with equal rights
(aeque principaliter unitae), or one as his proper see and
the other as administrator, he may appoint two vicars-
general, 1. e,t one for each diocese, if this latter measure
should be found more expedient or perhaps necessary for
" right administration." 9
Can. 367
§ z. Vicarius Gene ralis sit sacerdos e clero saecu-
lari, annos natus non minus triginta, in theologia et
iure canonico doctor aut licentiatus vel saltern earum
disciplinarum vere peritus, sana doctrina, probitate,
prudentia ac rerum gerendarum experientia commen-
datus.
§2. Si dioecesis alicui religioni commissa fuerit,
Vicarius Generalis potest esse eiusdem religionis
alumnus.
8 Cf. c. 14, X, I, 31, de officio U the other diocese would be very
judicis ord. distant, the bishop would be obliged
0 Bouix, Tractatu* d* Judicii* to appoint a vicar-general.
Beck, 1855. t. I, p. 411 f, says that
*Ic
I , Original fro ni
UNIVERSITY OF WISCONSIN
Q
"■
398 ECCLESIASTICAL PERSONS
§ 3. Vicarii General is rnunus ne committatur ca-
nonico poenitentiario, aut Episcopi consanguineis
praesertim in primo gradu vel in secundo mixto cum
primo, rait, exclusa necessitate, parocho ceterisque
curam animarum habentibus ; sed non prohibetur Epi-
scopua Vicarium ex ipsa dioccesi assumere.
The Code next proceeds to determine the qualities of
the vicar-gencral, which arc modified somewhat in com-
parison with the old law:
The vicar-general must be a member of the secular
clergy, at least thirty years of age, a doctor or licentiate
of sacred theology and canon law, or at least well versed
in said branches, of sound doctrine, righteousness, pru-
dence, and experienced in administrative matters.
If the diocese has been entrusted to a religious order,
the vicar-general may be a member of that order.
The office of vicar-general cannot be committed to the
canon penitentiary, nor to one related to the bishop by
blood in the first, or second touching the first, degree,
nor, except in case of necessity, to a parish priest or any
one occupied in the care of souls.
The first paragraph of Can. 367 appears to be taken
almost verbally from the schema of the Vatican Council,10
which, however, required the academic degree only in
either theology or canon law. Our Code dispenses with
the degrees, if a candidate is otherwise fit and has the
required age, which is raised to thirty years.11
The second paragraph regards dioceses entrusted to
religious orders. This may be done in such a way that
the diocese becomes an abbatia nullius, which is possible
only if the community itself is an abbey ; or that religious
lOCfr. Granderath-Kirch, Ge- II, 162.
Khichtt des Vatik. Konsits, 1903, XI Cfr. BouU, I. c, p. 388 ff.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 367 399
fit
have entire charge of the diocese, whose head is a re-
ligious, though not necessarily the superior of the com-
munity. Attention must be paid to the text, which says :
"if the diocese is entrusted." Hence, if a religious is
elected bishop of a diocese, this does not mean that the
diocese is committed to the care of religious or that the
vicar-general should be a religious; for the first para-
graph requires the vicar-general to be a member of the
secular clergy.
The question whether a regular with solemn vows may
be appointed vicar-general seems, according to our view,
to be settled in the negative by the first paragraph of our
canon, which demands a secular priest. The reason for
this law doubtless lies in the fact that religious should
reside in their convents, at least habitually, unless they
are compelled for good reasons to dwell outside, e. g.,
as pastors. Hence a bishop who would wish to have a
regular for his vicar-general, would have to apply to the
Holy See. But a religious with simple vows, whose in-
stitute permits its members to dwell outside the convent,
especially if they have given only the promise of obedi-
ence, provided he has the permission of his superior, needs
no papal indult to accept the office of vicar-general.1*
The last paragraph excludes three kinds of otherwise
qualified priests from the vicar-generalship, — the poeni-
tentarius catwnicus of a cathedral, the next relations of
the bishop, and pastors. As to the first-named, he must
reside at the cathedral and hence, since he was formerly
to be taken from a strange diocese, he could hold the
office of vicar-general; but the office of cathedral con-
fessor, and the delicacy of confessional trust, require full
11 Cf. can. 606, S 2. Cf. Bouix, the Roman practice never favored
/. c, p. 392 ff. Il is true, as we appointing religion* as vicars-gen-
read in many responses to questions eral.
gix-*r. by ths S. C. EE. et RR. that
oogle
% ,|,, Original from
UNIVERSITY OF WISCONSIN
4O0 ECCLESIASTICAL PERSONS
St
attention. The same holds good concerning parish
priests and others, chaplains or assistants, occupied with
the care of souls. However, in case of necessity, e. g.t
where there is a lack of fit persons, or pcnuria sacer-
datum, even a parish priest, provided he is not canonicus
pocniteniarius, may be appointed. In no case, however,
can a brother or nephew of the bishop be chosen vicar-
general.13 The old doctrine I4 that no one who was born
in, or was a citizen or an inhabitant of, the diocese for
which he was to be appointed, could be vicar-general
thereof, is now discarded. The last clause of the last
paragraph simply states that the bishop may choose a
priest of the diocese, and consequently also of the episco-
pal city.
The powers of the vicar-general are described, or
rather outlined, in the following canon.
Can. 368
§ 1. Vicar io General!, vi officii, ea com petit in uni-
vcrsa dioecesi iurisdictio in spiritualibus ac tempora-
libus, quae ad Episcopum iure ordinario pertinet, ex-
ceptis iis quae Episcopus sibi reservaverit, vel quae ex
iure requirant speciale Episcopi mandatum.
§2. Nisi aliud expresse cautum fuerit, Vicarius
Generalis exsequi potest rescripta apostolica quae
Episcopo vel praecedenti rectori dioecesis remissa sint,
ac generatim ad ipsum quoque pertinent facultates
habituales Ordinario loci a Sancta Sede concessae, ad
normam can. 66.
The vicar-general, by virtue of his office, enjoys that
IS The first degree would also in- which caae«, however, are rare,
elude the bishop's son and father, 1* Cf. Bonix, /. c, p. 396 ff,
oogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 368 401
a
temporal and spiritual jurisdiction in the whole diocese
which the bishop as Ordinary possesses iure ordinario,
except that which the bishop reserves to himself, or which
by law requires a special mandate from him.
Unless expressly provided to the contrary, the vicar-
general can be executor of Apostolic rescripts sent to the
bishop or his predecessor in the administration of the
diocese. He also enjoys the habitual faculties granted by
the Holy See to the ordinarius loci.
Hence there is now 1B no longer any doubt as to the
character of the vicar-general's power. It is an ordinary
power, conferred by die very act of appointment, and,
therefore, coextensive with the ordinary power of the
bishop himself in matters spiritual and temporal. Where-
fore, let it be said by the way, the custom of appointing
two vicars-general, one in temporalibus and one in
spiritualibus, is not to be admitted, although, as stated
above, two vicars-general in solidum may be appointed.
From the ordinary powers of the vicar-general the Code
exempts that which the bishop has reserved, and that for
which the law requires a special mandate. As to the
first clause, it should be remembered that Regula iuris
8i, in 6°, states: "In generali concessione nequaquam
ilia veniunt, quae non esset quis verisimiliter in specie
concessurus." Some authors give a list of such cases,10
which, however, is of little value, since the bishop must
state the reservations he wishes to make to the vicar-
general, otherwise the latter acts validly and licitly if he
proceeds in such cases. Of greater importance is the
second clause. A special mandate is required under the
a
16 We say now, for doubts were Viorc, \. II, c. 8; Barbosa, D* Of-
previously entertained as ti> the na- fieio tt Poletlale hpiieopi, P. Ill,
ture of that i>ower. Cfr. Wcrnz, allegatio 54, nn. 83 ff. (ed. Lugd.
I. c, II, p. 987 f. (1 ed.). 1665, t. II, p. i*3 ff)
l«Cf. Benedict XIV, De Synod.
>Ic
Original fro m
UNIVERSITY OF WISCONSIN
-'
■
pi
402 ECCLESIASTICAL PERSONS
new Code for the appointment to offices (can. 152), the
conferring of benefices (can. 1432, § 2), the granting of
litterae dimissoriales (can. 950, §2), and the convoking
of a synod (can. 357, §1). Certain other cases that for-
merly required a special mandate are not mentioned in
our Code.17
Concerning rescripts and faculties enough has been
said in Bk. I. We merely note here that habitual, i. €.,
triennial or quinquennial faculties, if such are issued again
after the decree of the S. C. Consist, of April 25, 1918,
are understood, but not such as are granted for a special
case or for extraordinary occasions.
Can. 369
§ x. Vicarius Generalis praecipua acta Curiae ad
Episcopum referat, ipsumque ccrtiorem faciat de iis
quae gesta aut gerenda sint ad tuendam in clero et po-
pulo disciplinary.
§ 2. Caveat ne suis potestatibus utatur contra men-
tcm et voluntatem sui Episcopi, firmo praescripto can.
44, §2.
In order that the old principle may be maintained, that
the bishop and his vicar-general form one and the same
person and tribunal, the Code demands that the vicar-
general report the chief affairs (acta) of the Curia to the
bishop and inform him of what was done or is to be done
to safeguard the discipline of the clergy and the people,
and that he should not use his powers against the inten-
tion and will of his bishop.
This canon was evidently added to obtain uniformity
D
"\
IT For instance, to dispense from the diocese (can. 343), etc. Of
irregularities arising from an oc- course, this latter only in case the.
—
cult delict, (cfr. can. 908), to visit bishop is impeded.
in
■-:
• •■
t .. 4nL Originalfrom
ioi >gle
UNIVERSITY OF WI5CGNSI
CANON 370 403
and unity of government. It forbids the vicar-general,
under pain of nullity, to grant a favor denied by the
bishop. How far prudence and charity are to be guides,
must be left to personal j udgment. We only add that the
canon does not mean to make the vicar-general the police-
man (in an odious sense) of the diocese.
Can. 370
§ 1. Praesente etiam Episcopo, Vicarius Generalis
publice privatimque praecedentiae ius habet super
omnibus dioecesis clericis, non exclusis dignitatibus et
canonicis ecclesiae cathedralis, etiam in choro et acti-
bus capitularibus nisi clericus charactere episcopal!
praefulgeat, et Vicarius Generalis eodem careat.
§ 2. Si Vicarius Generalis sit Episcopus, omnia
honor ifica privilegia Episcopo rum titularium obtinet;
secus durante munere habet tantum privilegia et insi-
gnia Protonotarii apostolici titularis.
The honorary rights of the vicar-general are the fol-
lowing: He takes precedence over the whole clergy of
the diocese at public and private occasions, even if the
bishop is present, and over all dignitaries and cathedral
canons in choir as well as in chapter meetings, unless
there is a clergyman endowed with episcopal character
and the vicar-general lacks that character. If the vicar-
general is a bishop he enjoys all the honorary privileges
of titular bishops. If he is not a bishop, he is entitled,
during the time he serves as vicar-general, to all the
privileges and insignia of a titular protonotary apostolic.
The first paragraph of can. 370 18 regulates the prece-
<
18 Formerly a distinction was assisted in hiB insignia or not, etc
made as to whether the vicar-gen- Cfr. Bouix, Dt Capitulis, 1853, p.
eral mi a canon or not, whether he $34 ff.
>Ie
, .j,. Original fro ni
UNIVERSITY OF WISCONSIN
404 ECCLESIASTICAL PERSONS
dence of the vicar-general on all ecclesiastical occasions.
As he takes precedence over all prelates not endowed with
the episcopal character, he ranks above protonotaries and
abbots, actual and titular. Of the honorary privileges of
a vicar-general who has received episcopal consecration,
and hence ranks as a titular bishop, enough has been
said. If the vicar-general is not a bishop, he is entitled
to the privileges and insignia of a titular protonotary
apostolic, the lowest class of the protonotaries' college,
as remodeled by Pius X in his Motu proprio, " Inter
multiplices," Feb. 21, 1905. Vicars-general enjoy the
title and privileges of this class of prelates by right during
the whole tenure of their office as vicars, and are, there-
fore, called monsignori. Their dress is a black cassock
which may have a trail (but not unfolded) with a silk-
belt and two pendants (fiocculi) on the left, a rochet,
mantelet, and biretta, all black. They do not genuflect
but only bow to the bishop or the cross ; and are incensed
duplici ductn; they say Mass as ordinary priests, but
have the right to use the bugia or hand-light. Over their
daily dress, on solemn occasions, including audiences with
the Pope, they may wear a silken belt with a black
fringe, a hat with a band and tassels of black color. On
their coat-of-arms they may place a hat of black color
with ribbons or strings and six tassels on each side, all
black (not purple or red).19
Q
Can. 371
Exspirat Vicarii Generalis iurisdictio per ipsius re-
nuntiationem ad normam can. 183-igi, aut revocatio-
ncm ci ab Episcopo intimatam, aut sedis episcopalis
19 dr. Amtr. EccL Reviiw, 1905, Vol. XXXII, p. 625 ff.
jle
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 371 405
vacationem ; suspenditur vcro suspensa episcopali iuris-
dictione.
The jurisdiction of the vicar-general expires by resig-
nation, by revocation on the part of the bishop, or by
vacancy of the episcopal see. When the bishop's juris-
diction is suspended, that of the vicar-general also ceases.
As to resignation enough has been said above. If the
bishop wishes to remove his vicar-general, he has to make
the fact formally known to him, for a tacit recall is not
valid nor does it affect the validity of the acts of the
vicar-general. The best way is in writing, although this
mode of recall is not strictly involved in the term " in-
timata" which signifies to make something known to
someone in a legal way. Hence the notification may be
made orally by courier or any other official, but the
bishop must assure himself that the notice was received
by the vicar-general. No reason w need be given for the
removal, for the vicar-general is removable ''ad nutum
episcopi."
If the episcopal see becomes vacant the jurisdiction of
the vicar-general ceases, because bishop and vicar-gen-
eral are considered one tribunal. However, if a common
error concerning the death of the bishop should occur,
the official acts performed by the vicar-general during the
supposed vacancy would be valid.21
The jurisdiction of the vicar-general is suspended if
the bishop is suspended from jurisdiction, or ex-
communicated, or smitten with the personal interdict.
But a mere suspensio a divinis of the bishop would not
suspend the jurisdiction of his vicar-general.
20 Bouix, De Judiciit, I, p. 443, in the text,
and others hold that recourse may 21 Cf. Wemz, Jus Dtcrtt., II, p.
be had to the Holy Sec; but new 994.
tail seems out of place, as stated
jle
j ^ Original fro rn
UNIVERSITY OF WISCONSIN
"■
406 ECCLESIASTICAL PERSONS
ARTICLE II
THE CHANCELLOR AND OTHER NOTARIES — THE EPISCOPAL ARCHIVES
The following canons attest the great care which the
Church wishes to be taken of all the more important
documents pertaining to diocesan government. She her-
self has set a shining example. From the earliest time
of her existence, Rome had its regional notaries, who
were employed partly in collecting the acts of the mar-
tyrs, and partly in writing and preserving documents for
the papal archives. The latter existed as early as the
fourth century,22 as we learn from the Liber Pontificalis
that the popes preserved their official, legislative, and
disciplinary documents in archhio ecclesiae** The care
of these archives required persons of trust and ability,
who would scrupulously record the documents and watch
over them. For this purpose a host of scribes (called
notarii, scriniarii, chartnlarii) were employed at the papal
court, who not seldom rose to dignities and held high
rank in the pontifical family, to which in later centuries
especially belonged the protonotaries.
All this goes to prove the importance of ecclesiastical
archives and makes the following enactments more in-
telligible. As the episcopal court forms part of the uni-
versal machinery of the Church, those who are entrusted
with the diocesan archives should bestow upon them
minute and loving care.
Can. 372
§ 1. In qualibet Curia constituatur ab Episcopo
cancellarius qui sit sacerdos, cuius praecipuum munus
« Cf. Hieronymi Opp., Mime. P. 83 Libe r Pontificalia, ed. Duchesne.
L-. *3. 549 J Phillips, Kirchenrttht, I, CXXX, CLII, 330, 338
iHCm, t. VI, p. 36?ff.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 373 407
Bit acta Curiae in archive custodire, ordine chronolo-
gico disponere et de eisdem indicis tabulam conficcrc.
§ 2. Posccnte necessitate, adiutor ei dari potest, cui
nomen sit vice-canccllarii seu vice-tabulariL
§3. Cancellarius est eo ipso notarius.
Every episcopal Curia should have a chancellor, a
priest appointed by the bishop, whose chief business it is
to file official documents in the archives, keep them in
chronological order and properly indexed. If necessary,
the chancellor should be given an assistant, with the name
of vice-chancellor or vice-recorder. The chancellor, by
reason of his office, is also a notary.
The documents may be indexed according to the names
of parishes, or topically, according to the subject-matter;
for instance, appointments, assistants, charitable institu-
tions, marriages, ordinations, parish priests, religious,
sisterhoods, etc. The chronological order had best be
kept according to the calendar year.
Can. 373
§ 1. Episcopus praeter cancellarium potest alios
quoque notaries constituere, quorum scriptura aut sub-
scriptio publicam fidem facit.
§ a. Iidem constitui possunt aut ad quaelibet acta,
aut ad acta iudicialia dumtaxat, aut ad acta tantum-
txiodo certae causae vol negotii conficienda.
§3. Si clerici desint, possunt e laicis assumi; sed
notarius in criminalibus clericorum causis debet esse
sacerdos.
§ 4. Cancellarius aliique notarii debent esse inte-
grae famae et omni suspicione maiores.
§ 5. Omnes possunt removed aut suspendi ab eo
"-.
oogle
f^ ^ ^ -,\,^ Original from
UNIVERSITY OF WISCONSIN
"-.
408 ECCLESIASTICAL PERSONS
qui illos constituit aut ab cius successors aut Supe-
riors non autem a Vicario Capitulari, nisi de consensu
Capituli.
Besides the chancellor, the bishop may appoint other
ecclesiastical notaries, who may act in all ecclesiastical
matters without discrimination, or only in judicial affairs,
or in certain cases, or for a certain kind of cases, as the
bishop deems proper. Where there is a lack of clerics,
laymen may be chosen for this office ; but the notary in
all criminal cases of the clergy must be a priest.
The chancellor and the other notaries must be men of
good reputation and beyond suspicion concerning their
character and trustworthiness.
All of them may be removed or suspended by the one
who appointed them, or by his successor or superior, but
not by the vicar-capitular, except with the consent of the
chapter.
These officials may be removed by the bishop for any or
no reason and without appeal to a higher authority. They
may also be suspended a* for a time, according to the good
pleasure of the bishop. The right of removing and sus-
pending the chancellor and other ecclesiastical notaries
belongs to the bishop, to his successor, and to his superior.
The superior of the bishop, in the canonical sense, is the
Pope, not the metropolitan, who cannot therefore remove
the aforesaid officials. Neither should the vicar-capitular
or administrator remove or suspend them, for the old
title in the Decretals (III, 9) that nothing should be
changed during a vacancy, still holds good (can. 436).
Therefore our canon demands, not only the advice, but
the consent of the chapter or diocesan consultors.
24 Suspension if here to be taken desiastiral censure, because it nay
u temporary cessation, not as ec- be inflicted on lay notaries.
>Ie
J ^ Original fro m
UNIVERSITY OF WISCONSIN
-'
CANON 374 409
Can. 374
§ 1. Officium notariorum est:
i.° Conscribcre acta seu instrumenta circa dispo-
sitions, obligationes, citationes ct intimationes iudi-
ciales, decrcta, sentcntias alia ve circa quae eorum opera
requir itur ;
2.0 In script is fideliter redigere quae geruntur eaque
cum significa tione loci, d iei, mensis et anni subsignare ;
3-° Acta vel instrumenta legitime petenti ex re-
gesto, servatis servandis, exhibere et eorum exempla-
ria cum autographo conformia declarare.
§ 2. Conscribere acta nequit notarius nisi in ter-
ritorio illius Episcopi a quo est electus aut pro negotio
ad quod est legitime constitutus.
This canon defines the functions of ecclesiastical
notaries. They are:
(1) To put in writing all episcopal acts or documents
concerning enactments (dispositiones) , orders, and en-
gagements (obligationes), all judicial summons and inti-
mations, all decrees and sentences, and whatever else re-
quires their cooperation ;
(2) To record all important events with name of
place and date, — day, month and year ;
(3) To show the acts or documents contained in the
diocesan archives to those who rightfully ask to see them,
and to furnish authenticated copies of the originals.
A notary can make official records only in the territory
of the bishop by whom he is appointed, and in matters
with which he is lawfully entrusted. The office of
notary is thus not only legal, but partly that of a historio-
grapher. Legal acts are the orders issued by the bishop
(dispositiones), e. g., concerning appointments to offices,
ogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
410 ECCLESIASTICAL PERSONS
conferences and arrangements for confirmation. Like-
wise the obligationes, which imply all kinds of material
and spiritual engagements, for instance, (i) title deeds,
mortgages on church property, etc., (2) foundations for
masses, legacies or bequests, especially last wills. Legal
in the strictest sense are those acts which belong to judi-
ciary procedure, summons, intimations, sentences, etc.,
all of which must be composed and recorded very carefully
because their validity might otherwise be jeopardized.
As the historiographer of the diocese the chancellor or
notary should record the erection of parishes, the labors
of priests, the work done by institutions of charity and
religion, etc. Historical records are very important, inter
alia, for ascertaining prescription and custom. Where-
fore the chancellor, in doing his duty conscientiously,
serves History, which '* teaches by example."
Here we would draw attention to the necessity of using
durable and specially prepared ink. It is an unfortunate
fact that many, especially typewritten papers, in course of
time become almost illegible, whereas manuscripts of the
ninth and tenth century can still be read with little diffi-
culty.
The last paragraph of our canon limits the activity of
notaries to the territory of the bishop to whom they owe
their appointment. This rule is based on the nature of
espiscopal jurisdiction, which is strictly limited in regard
to territory, according to the principle: "Extra terri-
torium ius dicenti impune non paretur." w A notary who
would attempt to perform judicial functions in a strange
territory would lack authority and therefore act in-
validly.2e Besides, a notary can write or compose only
such documents for which he has been authorized ; whence
taCfr. e- a, 6°, I, », de const. »« Cfr. Reiffenstuel, II, a», n. a**,
de fid* mjfrvm.
gle
k ,|,, Original fro rn
UNIVERSITY OF WISCONSIN
CANON 37S 411
a judicial act or document composed by a notary who was
assigned to administrative affairs only, would be invalid.
custody or archives
Can. 375
§ 1. Episcopi in loco tuto ac commodo archivum
seu tabularium dioccesanum erigant, in quo instru-
menta et scripturae, quae negotia dioecesana turn spi-
ritualia turn temporalia spectant, apte dispositae et
diligenter clausae custodiantur.
§ 2. Omni diligentia ac sollicitudinc conficiatur in-
ventarium seu catalogus documentorum quae in ar-
chivo continentur cum brevi singularum scripturarum
synopsi.
Can. 376
§ 1. Quotannis, primo bimcstri, inventario seu ca-
talogo illae scripturae adiungantur, quae anno prae-
cedenti confectae vel alias neglectae fuerunt.
§ 2. Ordinarii sedulo inquirant chartas et scriptu-
ras forte alio distractas atque dispersas; et quaelibet
necessaria remedia adhibeant ut eaedem scripturae
archivo restituantur.
z
Can. 377
§ r. Archivum clausum sit oportet et nenuini illud
ingredi liceat sine Episcopi aut Vicarii Generalis et
cancellarii licentia.
§ s. Unus cancellarius illius clavem habeat.
■
Can. 378
-
§ i. Ex archivo non licet efferre scripturas sine Epi-
scopi vel Vicarii Generalis consensu eaedemque post
jle
k ,.] ^ Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
412 ECCLESIASTICAL PERSONS
triduum in suum locum referantur. Ordinario autem
reservatur facultas prorogandi hoc tempus, quae tamcn
prorogatio nonnisi moderate concedatur.
§ 2. Qui aliquam scripturarn ex archivo effert, syn-
grapham sua manu signatam, hoc ipsum significantem,
cancellario relinquat.
The bishop must provide a safe and convenient place
for the diocesan archives, where all documents pertaining
to the spiritual and temporal affairs of his diocese may be
properly arranged and safely kept under lock and key.
A careful inventory or list of documents kept in the
archives should be made, as well as a brief summary of
each. Within the first two months of every year should
be added to the catalogue such new papers as -have ac-
cumulated in the course of the preceding year or been
found neglected elsewhere.
The Ordinaries are instructed to make a careful search
for documents and papers which may have gone astray
or been scattered, and to employ every feasible means to
have them restored to the diocesan archives.
The archives are to be locked, and no one is allowed to
enter the place where they are kept without the permis-
sion of the bishop or of both the vicar-general and the
chancellor. The chancellor shall keep the key.
No one is allowed to take papers out of the archives
without the consent of either the bishop or the vicar-
general ; and if any papers are taken out, they must be
returned after three days, unless the Ordinary permits
them to be kept ouffor a longer time. Such permission,
however, should be granted but rarely. Whoever takes
out a paper from the archives must leave a signed receipt
in his own handwriting with the chancellor.
This canon is intended as a safeguard to prevent docu-
G i Originalfrom
00^vK UNIVERSITY OF WISCONSIN
-
CANON 379 4*3
ments from being scattered, and at the same time offers to
students of history, or others who may be interested in
episcopal records, an opportunity to use them. Of
course, bishops will see to it that the documents are not
put to wrong uses.
SECRET ARCHIVES
■
Can. 379
§ i. Habeant praeterea Episcopi aliud archivum
secretum vel saltern in coinmuni archive armarium seu
scrinium omnino clausum et obseratum, quod de loco
amoveri nequeat. In eo scripturae secreto servandae
cautissime custodian air ; sea singulis annis quampri-
mum comburantur documenta causarum criminalium
in materia morum, quarum rei vita cesserint vel quae
a decennio sententia condemnatoria absolutae sunt, re-
tento facti brevi summario cum tcxtu sententiae defi-
nitivae.
§ 2. Etiam huius secrcti archivi vel armarii in-
ventarium seu catalogus conficiatur ad normam
can- 375. § 2.
§3- Hoc archivum vel armarium duabus clavibus
inter se diversis aperiatur, quarum altera apud Epi-
scopum vel Administratorem Apostolicum, altera apud
Vicarium Generalem vel, eo deiiciente, Curiae canccl-
larium asservetur.
■
§ 4. Episcopus vel Administrator Apostolicus, re-
petita altera clave, ipse solus, nemine adstante, archi-
vum vel armarium secretum, ubi opus fuerit, aperire
ct inspicere potest, quod deinde utraque clavi iterum
claudatur.
Can. 380
Statim a capta possessione, Episcopus sacerdotem
oogle
^ ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
414 ECCLESIASTICAL PERSONS
designed qui, sede vacante aut impedita, clavem se-
creti tabularii seu armarii quae apud Episcopum erat,
assumat.
Can. 381
§ 1. Nisi Administrator Apostolicus dioecesi datus
fuerit:
i.° Sede impedita ad normam can. 429, § I, sacer-
dos ab Episcopo designatus, si quidem regimen dioe-
cesis sit penes virum ecclesiasticum ab Episcopo dele-
gatum, clavem eidem remlttat; si penes Vicarium Gc-
neralem, earn ipse ret meat ;
a.° Sede vero vacante aut impedita ad normam cit.
can. 429, § 3, idem sacerdos clavem remittat Vicario
Capitulari statim post eius designationem ; Vicarius
vero Gencralis vel cancellarius aliam clavem a se re-
tentam remittere eodem tempore debet primae Capituli
dignitati vel consultori dioecesano munere antiquiori.
§2. Antequam claves lis, quibus tradi debent ad
normam § if remissae fuerint, Vicarius Generalis vel
cancellarius et sacerdos, ut supra, ab Episcopo desi-
gnatus, tabularium vel armarium sigillis Curiae obsi-
gnent.
Can. 382
§1. Tabularium vel armarium nunquam aperiatur
nee sigilla ab eo removeantur, nisi urgente necessitate
et ab ipso Vicario Capitulari coram duobus canonicis
vel dioecesanis consultoribus, qui evigilent ne qua scri-
pt ura e tabulario auferatur; solus autem Vicarius Ca-
pitularis documenta in tabulario asservata potest,
iisdem canonicis vel consultoribus adstantibusf inspi-
cere, nunquam tamen auferre. Archivum autem, post
inspectionem, iterum sigillis obsignetur.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
-
Q
CANON 382 4*5
§2. Advenienti novo Episcopo, si sigilla rexnota
fuerint et tabularium aut armarium apertum, Vicarius
Capitularis rationem reddat urgentis necessitatis, qua
ad hoc motus fuerit
What was said in the preceding canons concerns the
common archives of the diocese. Besides this there
should be a stricdy secret one. At least the bishop must
provide for a special safe or chest, capable of being locked
and immovable (safe or safety vault), wherein all secret
papers should be carefully preserved. Documents per-
taining to criminal cases and moral matters which have
reference to deceased defendants or to cases settled by
condemnatory sentence over ten years ago, should be
burnt every year, only a brief summary of each case with
the text of the final sentence being retained.
Of the contents of these secret archives or chests an
inventory or catalogue must be made according to can.
j 375, § 2.
These archives (or safe) must be locked with two
different keys, one of which is kept by the bishop or
Apostolic administrator, the other by the vicar-general,
or, if there is no vicar-general, by the chancellor.
The bishop or Apostolic administrator, after having
procured the other key from the vicar-general or chan-
cellor, may, if necessary, open and inspect the secret
archives alone and without witnesses, and should again
lock it with both keys.
§ 1 of canon 379 safeguards the reputation of the dead
and prevents the accumulation of useless papers.
The reason why the Apostolic administrator is specially
mentioned in § 3 and § 4 is because these officials have
sometimes been excluded not only from episcopal palaces,
but also from the diocesan archives*
.'le
/" * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
416 ECCLESIASTICAL PERSONS
I
Canon 380 provides that the bishop, immediately after
taking possession of his diocese, shall appoint a priest
who, during a possible vacancy of the see or enforced
absence of the bishop (sede impedita), shall take pos-
session of the key. How careful the Church wishes the
bishop to be with these archives is apparent from this
canon. The secret archives of a bishop resemble diplo-
matic archives, and the last nuncio of Paris, if he were
still alive, might tell a strange tale. Hence the law pro-
vides that a special custodian is appointed for the secret
archives, — the chapter, which is otherwise competent in
such matters, being discarded for good reasons.
Canon 381 says that, when a diocese has no Apostolic
administrator during the vacancy of the see or enforced
absence of the bishop, the custodian of the secret archives
shall hand over the key to the temporary ruler of the dio-
cese, if he be an ecclesiastic designated by the bishop;
but if the government is in the hands of the vicar-general,
he shall retain the key. The key shall be handed over to
the vicar-capitular as soon as one is appointed, and at the
same time the vicar-general or chancellor shall give up
the other key to the first dignitary of the diocesan chapter
or the oldest in rank among the diocesan consultors.
Before the keys are handed over to the persons desig-
nated in § 1, the vicar-general (or chancellor) and the
custodian appointed by the bishop shall seal the archives,
including the secret chests, with the seal of the episcopal
Curia.
Canon 382 rules that the secret archives (tabtdarium,
armarium) shall never be opened or unsealed except in
urgent cases, by the vicar-capitular in the presence of two
canons or diocesan consultors. who shall watch that no
papers are carried off. The vicar-capitular may examine
the papers alone in the presence of said canons or con-
jle
j ^ " riginal from
UNIVERSITY OF WISCONSIN
-
CANON 383 417
suitors, but he is not allowed to take any of them away,
and the archives must again be sealed after inspection.
If the seals were removed and the archives opened, the
vicar-capitular must report to the new bishop the reason
which urged him to open the archives.
other archives of the diocese
Can. 383
§ 1. Curent Episcopi ut archivorum quoque eccle-
siarum cathcdralium, ccllegiatarum, paroecialium,
necnon confraternitatum et piorum locorum inventa-
ria seu catalogi conficiantur duobus exemplaribus, quo-
rum alterum in proprio archivo, alterum in archivo
episcopali servetur, firmo praescripto can. 470, § 3,
152a, nn. 2, 3, 1523, n. 6.
§ 2. Documenta originalia ex praedictis archivis ne
efferantur, nisi ad normam can. 378.
Can. 384
§ z. Documenta quae in paroeciarurn et Curiarum
archivis sub secreto servanda non sunt, fit cuilibet cuius
inter sit inspiciendi potestas ; itemque postulandi ut sua
impensa sibi legitimum eorum exemplar exscribatur et
tradatur.
§ 2. Cancellarii autem Curiarum, parochi, aliique
archivorum custodes in communicandis documentis et
eorum exemplaribus describendis tradendisque regulas
servent a legitima auctoritate ecclesiastica dates, et in
casibus dubiis loci Ordinarium consulant.
Canon 383 urges the bishop to take care that all docu-
ments concerning the cathedral, collegiate and parish
churches, as well as confraternities and pious institutions.
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
418 ECCLESIASTICAL PERSONS
o>
be made out in duplicate and that one copy be kept in the
archives of the respective church or institution, whilst the
other is preserved in the episcopal archives. No papers
are to be taken from these archives except under the
conditions stated in can. 378.
Canon 383 refers to three other canons, vis., 470, 1522,
and 1523, which pertain to the parish books and inven-
tories procured by the diocesan trustees. Of these a copy
must be sent to, and kept in, the episcopal archives. It
is evident that parishes in charge of exempt religious
must comply with this law only in so far as parish affairs
are concerned.
According to canon 384, the papers which need not be
kept secret in parochial and episcopal archives may be
inspected by any one who is interested in them, and
authentic copies may be made by any one at his own
expense. The chancellors of the various Curiae, parish
priests and other custodians, in communicating documents
or copies from the archives entrusted to their care, shall
follow the rules laid down by legitimate ecclesiastical au-
thority, and in doubtful cases consult their ordinaries.
The laws embodied in this part of the Code may serve
as a pattern for more elaborate rules, which, if properly
observed, will prevent abuses and unpleasantness.
article iii
synodal examiners and consultobs
Can. 385
§ 1. In qua vis dioecesi habeantur examinatores
synodales et parochi consultores qui omnes in Synodo
constituantur, propositi ab Episcopo, a Synodo appro-
bati.
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
—
a
N
■
",
CANON 386 419'
§ 2. Tot cligantur quot Episcopus prudcnti suo iu-
dicio necessarios iudicaverit, non tamen infra quatuor,
nee ultra duodecim.
Can. 386
§ 1. Examinatoribus et parochis consultoribus me-
dio tempore inter unam et aliam Synodum demortuis
vel alia ratione a munere cessantibus, alios pro-syno-
dales Episcopus substituat de consilio Capituli cathe-
dral is.
§ a. Quae regula servetur quoque in examinatoribus
et parochis consultoribus constituendis quoties Syno-
dus non habeatur.
The Council of Trent 2T decreed that at each diocesan
synod examiners should be chosen for the concursus of
parish priests. The same council 2S advised bishops to
have regular examiners for examining candidates for the
priesthood and priests asking for the faculty to hear con-
fessions. Diocesan synods having gone into desuetude,
and for other reasons, examiners are now also selected
outside the synod. Hence two kinds of examiners
synodales, i. e.r those chosen at a diocesan synod, and
prosynodales, i. e., those chosen outside.
The parochi consult ores,29 have but a short history;
for, if we mistake not, they were " canonized " by the
Motn proprio of Pius X, " Maxima cura," Aug. 20, 1910,
27 Cf. Trid., Sess. 24 c. 18, de ref. sometimes translated by " parish-
and !'..-:■.■■! XIV, De Synod. Diotc, consultors," which may be accepted
1. IV, c. 7; decisions cfr. Ricbter, for brevity's sake, but is not entirely
Trid., p. 378 ff. correct, for these consultors are
IB Trid., Seas. 23, cc. 7, 15 de ref. quasi assessors of the parish priests,
» In the Catholic Directory the not of the parishes, which, of course,
term " parochi consultores " is are concerned indirectly.
oogle
^^Irt Original from
UNIVERSITY OF WISCONSIN
420 ECCLESIASTICAL PERSONS
and now figure in the procedure of administrative re-
moval of parish priests.
The Code ordains that there should be in every diocese
synodal examiners and parish priest consultors, all to
be appointed at and approved by a synod but proposed
by the bishop; that the number of examiners and con-
sultors is left to the prudent judgment of the bishop, but
should not be less than four nor more than twelve.
These officials should be elected by those attending the
synod after the bishop has proposed several names. The
balloting may be secret or open; but a majority of votes
is required for election, Hence, if one or the other, or
even all proposed by the bishop do not receive the neces-
sary majority, the bishop must propose other names for
those rejected, until the number of appointees has been
reached.80 This number is determined by the bishop,
preferably at the synod. The maximum and minimum
are settled by law.
Canon 386 provides that, if any examiner or parish
priest consultor should die or go out of office during the
time intervening between synods, the bishop, with the
advice of the cathedral chapter [or the diocesan con-
sultors] shall appoint another in his stead and that the
same rule shall be observed in the appointment of exam-
iners and consultors, if no synod is held.
This enactment precludes the idea that the office of con-
sultor or examiner may be attached to a parish, dignity,
or office in such a way that the successor in that parish,
etc., would eo ipso be examiner or consultor because his
predecessor held that office.81
The second paragraph provides for extraordinary
80 Benedict XIV, Dt Syncd. n Ibid., n. 5, where an example
DiotC, I. IV, c 7, n. 3. from the diocese of Toledo in
Spain 11 stated covcrinr the text
in
■-:
*Ic
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 387 421
cases, which may arise where synods are not held at all
or at irregular intervals.
Can. 387
§ z. Examinatores et parochi consultores, sive in
Synodo sive extra Synodum constitute post decennium
ab incepto munere vel etiam prius, adveniente nova
Synodo, officio cadunt ; possunt tamen negotium iam
coeptum ad exitum perducere et, servatis de hire ser-
vandis, denuo constitui.
§ 2. Qui loco examinatorum ac parochorum consul-
torum deficientium constituantur, in officio persistunt
dumtaxat quousque perstitissent ii quibus substitute
fucrunt.
Can. 388
Removeri ab Episcopo nequeunt , nisi ex gravi causa
et de consilio Capituli cathedralis.
Can. 389
§ 1. Examinatores synodales op cram suam dilig en-
ter navent praesertim expeiimentis habendis ad provi-
sionem paroeciarum nee non processibus de quibus in
can. 2147 seqq.
§ 2. Pro experimentis vero habendis ad clericorura
ordinationem et approbationem sacerdotum qui petunt
facuitatem excipiendi sacramentales confessiones aut
sacras conciones habendi, et pro examinibus de quibus
in can. 130, integrum est Episcopo vel examinatorum
8ynodalium vel aliorum opera uti.
Can. 390
Idem potest esse examinator et parochus consultor,
non autem in eadem causa.
jle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
-
422 ECCLESIASTICAL PERSONS
Under can. 387 examiners and consultors, whether
synodal or prosynodal, go out of office ten years from the
date of their appointment, or, if a synod is held, even
sooner. However, they may finish cases already begun,
and, with due observance of the prescribed regulations,
may be re-elected.
Those who are appointed in the place of deceased or
retiring examiners and consultors shall merely fill the
unexpired terms of those whose place they take.
A synod, according to can. 356, should be held every
ten years, and this period is the normal term of office
for the officials in question. Hence, if a consultor or
examiner is appointed extrasynodically, say five years
after the last synod, he can remain in office five years only,
i. e., up to the time of the next synod. However, he as
well as those who have served a full ten years' term,
may be re-elected at the synod according to the rules es-
tablished in can. 385.
If they have commenced to treat an ecclesiastical mat-
ter, say the removal of a parish priest, they may finish
the case, even if they are not re-elected. In the example
stated, the cause would have n commenced/1 so far as
the examiner is concerned, as soon as the invitation to
resign has been issued (can. 2148). For a consultor a
"business" (negotium) has "commenced" when the
parish priest thus asked to resign has taken recourse to
the Ordinary (can. 2153). In other afFairs, such as ex-
aminations, a sudden interruption is not likely to occur ;
but if an examiner has commenced to examine, he must
finish the job.
Canon 388 provides that examiners and consultors can-
not be removed from office by the bishop except for
weighty reasons and with the advice of the cathedral
jle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 390 423
chapter (or diocesan consultors). This canon is but a
consequence of the mode of their appointment, as the
express wish of the synod would be slighted if the bishop
were to remove these officials arbitrarily. Hence a
weighty reason is required. Such a reason would be,
e. g.f fraud committed at an examination, or a bribe ac-
cepted. Besides, the reasons that justify the removal of
a parish priest would also justify the removal of an
examiner or consultor. Note that the advice, not the
consent of the chapter or consultors is required. Hence
a removal without solid reason, or without the advice of
■a '
the chapter or board of consultors, would be valid, and
the person removed could have recourse, but 'could not
appeal to a higher authority.
Canon 389 makes it obligatory for the synodal (or pro-
synodal) examiners to perform their task diligently, es-
pecially at the examinations which are held for the pro-
vision of parishes and in the course of procedures aiming
at the removal of pastors. For the examination of can-
didates for Holy Orders and of such priests as desire the
faculty of hearing confessions and preaching, and also
of newly ordained priests for three years after ordina-
tion, the bishop is at liberty to employ the synodal exami-
ners or others. These points shall be explained in con-
nection with can. 459, where definite rules are laid down.
Can. 390 permits the same person to be examiner and
consultor, but not in the same cause. Hence in the
canonical process for the removal of parish priests, one
who holds both offices can act in only one capacity, either
as examiner or as consultor.
►ogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
Q
CHAPTER V
CHAPTERS OF CANONS
Ancient documents testify to the fact that the bishops
at an early date in the Church's history made use of their
clergy in the government of the diocese, as helpers and
counselors, so that the body of the clergy formed, as it
were, a senate about their chief pastor. St. Jerome could
say : " We, too, in the Church possess our own senate,
the assembly of the clergy." * However, this cooperation
did not imply a life in common {vita communis) , as led
by the monks. St. Augustine, indeed, endeavored to
gather his priests under one roof and have them lead a
community life;2 and his example found followers, not
only in Africa, but beyond the shores of the Mediterra-
nean, at Tours (567) and Toledo (633).* A fresh im-
petus to community life was given by Chrodegang of
Metz, who composed a special rule for his canons, as he
called them.* This name had a double signification.
Originally it meant one immatriculated or inscribed in the
canon or list of names which was preserved in the
churches either for liturgical or administrative purposes.
In the eighth and ninth centuries, the term signified a
person who lived according to a canonical rule, i. e., one
l Cf. Benedict XIV, Dt Synod. Ilshed in Man*!, Col!. Cone, t.
Diotc, XIII. 1. 4. XIV, 313 ff.; it ii in part taken
1 Vita 5". Aug., by Possidius, in verbally from the rule of St. Bene-
Migne, P. Z... 32, col. 37 ff. diet. Amalarius of Metz published
si- .-('■!■■. ConcUienofckichte, an enlarged edition of the rule of
1855, III, 75 and at. Chrodegang.
4 The rule of Chrodegang U pub-
4**
ogle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-
CANON 390 425
supposed to be taken from the canons of church coun-
cils; hence, vita canonica or canonical life. Various
synods, as well as Charlemagne, had decreed that all
clergymen should be canons5 and live within the clau-
sirum of the bishop, to which no women were admitted.8
The superior par excellence was the bishop himself, his
chief assistants the arch-deacon, the precentor/ and pre-
lates, who went by various names, the first in rank being
sometimes called provost (propositus), and the second,
dean or arch-priest. The younger clerics, called dotni-
cellares, were trained by a scholasticus and employed as
singers. This was the institute of canons, which Louis
the Pious wished to introduce into his empire. But in
course of time some of the clergy grew tired of the life
in common, especially since their private property re-
mained to them, and their prebends or benefices per-
mitted, nay often compelled them to remain outside the
community house. Yet, though they lived in private
houses, they long retained the rule of Chrodegang8 that
they should attend the chapter or capitulum, in order to
hear a chapter from the rule or a homily, and to receive
orders and corrections. This praiseworthy custom was
about all that was left of the ancient canonical life, and
despite the efforts of saintly men8 to restore it, the
chapters of canons remained independent, nay obtained
many additional prerogatives in the eleventh and twelfth
centuries. It certainly was more than a mere accident
that the popes wished to favor the chapters in that
s Cf. Hcfele, Conciliensgtschichtf, I. c, XIV, 318.
Ill, pp. 55 1» 56 ». 585. 6*7. 683, 693. • yvo <>* Chartres, and especially
6 Rtgula Canonica, ec. i?7, 144; S. Norbert. succeeded in establish-
Hefele, /. ft, IV, pp. lo, 13. ing the order of canons regular, so-
T Rtgula Chrodeg., cc. 9, 24; called, to distinguish ihera from
M*nai, /. e.t XIV, 317, 335. the canons secular.
« Rtgula Chrodtff., c 8; Mansi,
■
>Ic
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
426 ECCLESIASTICAL PERSONS
memorable struggle concerning investitures. Hence it
need not surprise us that, under Alexander III (1159-
81), the canons controlled the episcopal elections,10 and
that the Decretals accept this as a matter of fact.11 Be-
sides electing the bishop, the chapter, through its vicar-
capitular, governed the diocese during the vacancy of
the episcopal see.
Thus, the cathedral chapter in course of time became a
powerful corporation, which asserted its influence
throughout the diocese no less than within its bosom
(gremium) . To it belonged the right to receive new
members and to determine their number, to create new
prebends, etc. Thus, the canonicus theologus and the
canonicus poenitentiarius, in existence since the thir-
teenth century, obtained a legal status at the Council of
Trent 12 and were looked upon as important officials.
Some canons were supranumerary or honorary, whilst
others were full-fledged {in fructibus et Horibus). Be-
sides a distinction was sometimes made between dignities
in the proper sense, including precedence and jurisdiction,
personatus, which gave only precedence, and officio, which
had neither precedence nor jurisdiction. But unfor-
tunately these terms are often used promiscuously.13 If
dignitas is taken in the strict sense, to wit, as including
precedence and jurisdiction in foro externo, it would
include the bishop and the vicar-general, and perhaps
other officials. However, the bishop and the vicar-
general are not considered canons under the law. The
new Code admits a twofold gradation : dignitates and
canonicatus, the former being nothing else than the an-
■"■
10 Can. 35. Di«*. 63. Eecl, fist; Wernz, Jus Dee., U,
11 Cf. tit. 6, ie eUctiont, passim. 921 ff. v. Schcrer, Kirc htnreekt, I,
11 Smb. 5. «• h <*e "f.; ses«. 24, . 565 ff.; Sa^mullcr, K.-R., fl 95.
c. 8 de ref.; Eouix, De Capitulis, 13 Cf. Benedict XIV, Dt Syn.,
185a; Aichner, Compendium Juris. Ill, 3. 1.
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 391
427
N
cient personatus, involving mere precedence or honorary
rights, while the latter connotes administration or office,
with, of course, some honorary prerogatives to distin-
guish the holder from the rest of the clergy.14
Mention must finally be made of the fact that after the
canonical life had completely vanished, the chapters fixed
a certain number of canons to be admitted, and a chapter,
if filled, was called "closed" (capitulum clausum).
In order to make their burden more bearable, the
canons admitted, not indeed into the chapter or to par-
ticipation in its honorary rights, other clerics, who went
by various names : beneficiarii, capellani, portionarii, tnan-
siomrii. These received a certain portion of the reve-
nues and were actual coadjutors of the canons,10 though
without the latters' prerogatives.
After these explanations, which were necessary to en-
able the reader to understand the following canons, we
now proceed.
Can. 391
§ 1. Capitulum canonicorum sive cathedra le sivc
collcgiale seu collegiatum est clericorum collegium
ideo institutum ut sollemniorem cultum Deo in ecclesia
exhibeat et, si agatur de Capitulo cathcdrali, ut Epi-
scopura, ad normam sacrorum canonum, tanquam
eiusdem senatus et consilium, adiuvet, ac, sede vacante,
eius vices suppleat in dioecesis regimine.
§ 2. Capitulum collegialc appellatur insigne aut
14 Cf. Bouix, De Capilulu, p.
79 ff.; Wernc, Jus. Deertt, III,
934 (., who appropriately remark*
that, in order to get at the true dis-
tinction of these various offices, one
would have to study the several
chapters. This occupation we leave
to others.
10 Cf. Bouix, I. c, p. 68, p. 139 ff-;
maMtionarii, they were called be-
cause of their permanent service;
portionarii, because they received a
portion of the revenues.
jle
Original from
UHlVERSlf Y OF Vi-ISCONSI
428 ECCLESIASTICAL PERSONS
perinsigne, si hoc titulo ex apostolico privilegio vcl ab
immemorabili gaudeat.
A chapter of canons, either cathedral or collegiate, is
a corporation of clerics, instituted for the purpose of
more solemnly celebrating the divine service. A cathe-
dral chapter has the additional function of assisting the
bishop as his senate and council and governing the diocese
during a vacancy of the episcopal see.
A collegiate chapter is called distinguished or very
distinguished (insigne aut perinsigne) , if it has received
that title from the Apostolic See or enjoys it by imme-
morial custom.
A collegiate chapter is a corporation of canons, which
is established, not at the cathedral, or, as the ancient
term has it, in domo cpiscopi, but in some other con-
spicuous place or church. Such chapters are often found
in episcopal cities. In Rome, for instance, there are
several of them, e. g., S. Maria in Cosmedin, S. Lorenzo
in Lucina, etc.
The character insignis (distinguished) is derived either
from the will of the Supreme Pontiff or from immemorial
custom. The former needs no reason, but generally
follows the rule either of antiquity or excellence attached
to the place or church. Custom, therefore, has distin-
guished certain chapters either by the significance of the
place or importance of the church (sanctuary) or the
fame of the canons.18
Can. 392
Capitulorum turn cathedralium turn collegialium in-
stitutio seu erectio, innovatio ac suppressio Scdi Apo-
stolicae reservatur.
!• Boubc, L c, p. 55 f.
^
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
N
■
-"■
CANON 393 429
Cathedral as well as collegiate chapters may be erected,
changed, or suppressed only by the Apostolic See. This
has been the practice of the popes since the eighteenth
century ; indeed, we might say, to some extent, since the
Tridentine Council.17
Can. 393
§ 1. In qualibet ecclesia capitulari sint dignitates et
canonici inter quos varia officia distribuantur ; possunt
esse etiam alia minora beneficia in uno vel pluhbus
gradibus.
§2. Capitulum constat dignitatibus et canonicis,
nisi, ad dignitates quod attinet, aliud ex capitularibus
constitutionibus eruatur ; non autem inf erioribus bene-
ficiariis seu mansionariis, qui canonicis auxilium prae-
stant.
§ 3. Canonicatus sine adnexis emolumentis ne insti-
tuantur sine specialr'Apostolicae Sedis concessione.
In every chapter church there should be dignitaries
and canons to discharge the various offices. There may
also be minor benefices of the same or several kinds
(gradibus) .
A chapter consists of dignitaries and canons, unless the
constitution of the chapter provides otherwise concerning
the dignities ; but not of beneficiaries or mansionarii who
are assistants to the canons.
No canonicate lacking the necessary revenues can be
established without the special permission of the Apos-
tolic See.
§ 1 declares the intention of the legislator that there
should be two kinds of canons in every chapter: digni-
IT Cf. Bouix, £># Capitulis, p. Si ff.
jle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
Q
430 ECCLESIASTICAL PERSONS
taries and simple canons ; but § 2 admits the old custom
that dignitaries proper are not de capitulo?1 A plural-
ity of minor benefices either in the dignitaries or canons
is admitted, whereas beneficiaries or vicars of canons
are excluded from the chapter.
CAN. 394
§ x. In Capitulis numeratis tot sint praebendati,
quot praebendae; in non numeratis, quot ex proventi-
bus decenter sustentari posse, Episcopus, audito
Capitulo, iudicaverit.
§ 2. Erectio dignitatum Sedi Apostolicae reserva-
tur; sed est in Episcopi potcstate, consentiente Capi-
tulo, exstinctas forte dignitates restituere et praebendis
in Capitulo iam exstantibus alias sive canonicales sive
beneflciales addere.
§ 3. In ecclesiis cathedralibus et collegialibus insi-
gnibus ubi adeo tenues praebendae sunt una cum distri-
butionibus quotidianis, ut sustinendo canonicorum de-
cori plane sint impares, Episcopi, audito Capitulo et
impetrata Sanctae Sedis licentia, vel beneficia aliquot
simplicia praebendis uniant, vel, si hac ratione provi-
deri non possit, aliquibus praebendis suppressis, cum
patronorurn consensu, si de iure patronatus laicorum
sint, quarum fructus et proventus reliquarum praeben-
darum distributionibus quotidianis applicentur, eas
ad minorem numerum reducant, ita tamen ut tot super-
sint, quot divino cultui celebrando ac dignitati eccle-
siae commode respondeant.
In closed chapters there should be as many prebenda-
ries as there are prebends ; lB in chapters which have no
IT Cf. Booix, De Capitulis, p. 81 ff. consist of canons or prebendarie*.
18 In the established church of Blackstone- Cooley, Commentary, I,
England, the chapter was said to p. 381.
jle
f ■ j , Original from
UNIVERSITY OF WISCONSIN
CANON 394 43*
fixed number of members, there may be as many as in
the bishop's judgment (to be formed after hearing the
chapter) can be decently supported from the revenues.
The establishing of dignities is reserved to the Holy
See; but the bishop, with the consent of the chapter, may
restore extinct dignities and add to the prebends already
existing in the chapter others, either of canons or bene-
ficiaries.
Should the prebends, even with the daily distributions
added, become so meagre in any cathedral or distinguished
collegiate church, that they prove entirely inadequate for
maintaining the decorum of the canons, then the bishop
may, after having heard the chapter (advice) and ob-
tained the permission of the Holy See, add some simple
benefices to the prebends, or, should this prove impracti-
cable, suppress some of the prebends — (if these belong
to a lay patron, their suppression requires the consent of
the patron) — and apply the income thus saved to the
daily distributions among the remaining prebendaries;
provided, however, that enough prebends are left to
ensure the worthy celebration of the divine service and
the maintenance of the dignity of the church.
Note the difference between the first and second clause.
To unite benefices requires the betieplacitutn apostolicum;
whereas to suppress insufficient prebends does not.
Since the daily distributions play a conspicuous part
in chapters, a few words of explanation regarding them
may not be amiss. Ivo of Chartres was probably not the
first bishop who had trouble in making the canons live up
to their duty of personally assisting at the choir service.
To make the negligent more diligent and the slothful
more assiduous in the performance of their canonical
duties, he says, I have decided to give them half of the
income of a provostry, in order to make thereof a daily
odbyG >Ie
, ,] , Original from
UNIVERSITY OF WISCONSIN
432 ECCLESIASTICAL PERSONS
St
pittance, that those whom the sweetness of the spiritual
food does not move, may be stimulated by the temporal
bread.1* This custom was accepted and entered the
Decretals as a law.20 The Council of Trent" ordered
bishops to set aside the third part of all the fruits, reve-
nues, and income from all the prebends for daily dis-
tribution among those who personally and actively assist
at the divine service. Of these we shall hear more in
the following canons.
Can. 395
§ i. In ecclesiis tarn cathcdralibus quam collegiali-
bus in quibus nullae sunt quotidianac distributiones vel
ita tenues ut verisimiliter negligantur, Episcopi tcr-
tiam partem separent fructuum, proventuum, obven-
tionum quae ex dignitatibus, canonicatibus, officiis
aliisque illius ecclesiae benefices percipiuntur et in
distributiones quotidianas convertant.
§ 2. Si distributiones quavis de causa introduci ne-
queant, Episcopus in dtgnitates, canonicos ac benefi-
ciarios negligentes pecuniarias constituat mulctas,
quae distributionibus respondeant earumque locum
teneant.
§ 3. Distributiones cedunt diligentibus, quavis col-
lusione aut remissione exclusa; si vero dignitates
habeant proventus a massa seu bonis canonicorum di-
versos et separatos, distributiones ab eis amissae ce-
dunt aliis dignitatibus praesentibus, si adsint, secus
fabricae ecclesiae, quatenus indigeat, aut alii pio loco,
Episcopi arbitrio.
i» Cf. Benedict XIV, InstUutiones c. un. 5" III, 3 d* clericii aoa
Iurii Eccl., so7. fi 71 Bouix, Dt rotid.
Capxtulit, p. 170 f. Si Trii., Seu. ai, c. 3; Sou. u,
10 Cf. c 32, X, III, s do pracb.; c. 3 d« ref.
jle
Original fro ni
UNIVERSITY OF WISCONSIN
■
9
CANON 395 433
§4. Ab unoquoque Capitulo, secundum sua cuius-
que statuta, unus vel plurcs censores, seu punctatores
nominentur, qui absentes a divinis officiis quotidie no-
tent, praestito prius coram Capitulo vel eius praeside
iureiurando de suo munere fideliter obeundo; quibus
Episcopus alium addere potest punctatorem; quod si
abfuerint punctatores, senior e canonicis qui adsunt,
illorum vices suppleat.
In those cathedral as well as collegiate churches in
which no daily distributions take place or where they are
so meagre as to count for nothing, the bishop shall set
apart the third part of all the profits, incomes, and reve-
nues " received from the dignities, canonships, offices and
other church benefices, and turn them into daily distribu-
tions.
If, for any reason, such distributions cannot be ar-
ranged, the bishop shall impose upon the negligent digni-
taries, canons and beneficiaries, pecuniary fines in pro-
portion to the distributions of which they shall take the
place.
These distributions are for the benefit of the diligent
and there must be no secret agreements or abatement of
fines. If any dignitaries have an income separate from
the common possession of the canons, the distributions
forfeited by them must be given to the dignitaries pres-
ent, or if none are present, they should be applied, ac-
cording to the pleasure of the bishop, to the church build-
ing, if in need, or to any other pious institution.
II These three terms, which often ation, what the Italians call mcerti
recur, signify respectively, fructus, (SpoTtel*. fees), or, in the Ian*
the produce of the cultivated soil, guage of the Pandects, the revenue*
thence victuals, proventus, income, not including the fruits of the field,
revenue, also salary (in classical However, the three term* are often
language also crop) , obvenliones, used promiscuously.
that income which is beyond expect-
jle
/" * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
■
pi
434 ECCLESIASTICAL PERSONS
Every chapter shall, according to its own statutes, ap-
point censors or punctatores, whose duty it is daily to
make note of those absent from the divine offices. Be-
fore entering upon their office these punctatores must
promise under oath before the chapter or its presiding
officer to perform their duty faithfully. The bishop may
add another punctator to those set up by the chapter. If
the punctatores are absent, the senior of the canons pres-
ent shall take their place.
The punctatores (or obedientxales, as they were for-
merly called) must write down the names of the ab-
sentees, alsp note those who come late (if they arrive
after the Kyrie, they are taken for absentees), and who
talk or do not chant, or leave the choir too often.28 That
this office is not very, agreeable goes without saying.
Hence the right of the bishop to appoint a censor of his
own, in order to prevent secret agreements.
Can. 396
§ 1. Collatio dignitatum turn in Capitulis cathedra-
libus turn in collegialibus Sedi Apostolicae reservatur.
§ 2. Prohibetur optio, rcprobata contraria consue-
tudine, sed salva fundationis lege.
§ 3. Prima saltern dignitas in Capitulo cathedrali,
quantum fieri potest et ceteris paribus, laurea docto-
rali in sacra theologia vel iure canonico polleat.
The conferring of dignities in cathedral as well as col-
legiate chapters is reserved to the Apostolic See.
Optioning is prohibited, notwithstanding any contrary
custom, but with due regard to the law of foundation.
It Cf. Benedict XIV, Dm Syn., St. Charles Borrora.) Bouix, J. *.,
IV, 4, where the oath to be taken pp. i3S->3°-
if reproduced (a. 3, according to
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 397 435
The first dignitary of the cathedral chapter should, if
possible and other things being equal, be a doctor of di-
vinity or canon law.
Optioning means the right of choosing a vacant ca-
nonicate, whether a dignity or simple canonship, belong-
ing to the senior canon." It does not differ from the ins
optandi of the cardinals. But canons no longer enjoy
this right, unless it was expressly stipulated at the
foundation of the chapter. The requisites (§3) for the
first dignitas, whatever it be, according to the statutes of
the respective chapter, are taken from the Council of
Trent.25 What " ceteris paribus " means, must be de-
duced, like the other qualities required, either from com-
mon law, or from particular statutes.
Can. 397
Nisi aliud in statutis capitularibua caveator, digni-
tatibus et canonicis secundum ordinern praecedentiae
ius et officium est :
i.° Episcopi vicem supplere in peragendis functio-
nibus sacris in sollemnioribus anni festivitatibus ;
a.° Episcopo celebranti in pontificalibus, asperso-
rium in ingressu ecclesiae porrigere et presbyteri assi-
stentis fungi officio;
3.0 Eidem decumbenti ministrare Sacramenta; de-
functo iusta f unebria persolvere ;
4.'"' Convocare Capitulum cique praeesse ac prae-
scribere et ordinare quae ad chori directionem referan-
tur, durnmodo dignitas sit de gremio Capituli.
After the constitutive elements have been laid down,
the duties of canons are now denned.
24 Cf. Bouix, /. c, p. 169 f. Trid., p. 3*8 ff., where various de-
30 Seta. 24, c. is de ref., Richter, ciaioai are inserted.
ioi >gle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
436- ECCLESIASTICAL PERSONS
Unless otherwise provided in the chapter statutes, the
dignitaries and canons, according to their respective rank
and order of precedence, have the following rights and
duties:
(i) They take the bishop's place in the celebration of
the sacred functions on the more solemn feasts of the
year ;
(2) When the bishop celebrates pontifically, they must
offer him the sprinkler at the entrance of the church, and
one of them act as assistant priest ;
(3) When the bishop is ill, they must administer to
him the sacraments, and after his death, hold the funeral
services :
(4) They shall convoke the chapter and preside over
it, they shall prescribe and regulate whatever pertains to
the direction of the choir service, provided the dignity
belongs to the chapter. This conditional clause supposes
that dignitaries may not belong to the chapter. Hence
the meaning is that a dignitary who does not belong to
the chapter has no right to convoke it; and if there
should be no dignitary at all in the whole chapter, a canon,
who acts as praeses capituli, may call the meeting. Gen-
erally, however, the chapter is called by the provost or
dean.2'
j>
a
m
THE CANONTCUS THEOLOGUS AND THE POENITEKTIARIUS
• '
a
Can. 398
§ 1. In nulla ecclesia cathedrali desit officium cano-
nici theologi et, ubi id fieri poterit, canonici poeniten-
tiarii.
§ 3. Etiam in collegialibus, praesertim insignibus,
-
<
26 Cf. Bouix, /. c, p. 19a f.
jle
C^ ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
",
CANON 399 437
officium canonici theologi ct pocnitentiarii constitui
potest.
Can. 399
§ 1. Canon icus theologus et poenitentiarius eligan-
tur qui aptiores pro loci qualitate ad propria munera
adimplenda reperiantur; sed, ceteris paribus, praefe-
rantur doctores in sacra theologia, si agatur de cano-
nico theologo, in sacra theologia vel iure canonico, si
de poenitentiario ; expedit praeterea ut canonicus poe-
nitentiarius aetatis annum tricesimum expleverit.
§ 2. Praebenda theologalis et poenitentiaria ne con-
f erantur, nisi prius de vita, moribus, doctrina Candida-
torum plane constiterit, salva lege concursus, ubi sit
constituta.
§ 3. Canonicus .poenitentiarius prohibetur aliud si-
mul officium in dioecesi suscipere aut exercere, cui ad-
nexa sit iurisdictio in foro externo.
Can. 400
§ 1. Canonici theologi est, die bus et horis ab Epi-
scopo cum Capituli consilio designatis, publice in eccie-
sia explanare sacram Script uram ; sed Episcopus, si id
utilius iudicet, potest eidem alia doctrinae catholicae
argumenta in ecclesia explicanda committere.
§ 2. Canonicus theologus munus expleat suum ipse
per se, vel, si ultra sex menses fuerit impeditus, pro-
priis expensis per alium sacerdotem ab Episcopo de-
putandum.
§ 3. Episcopus gravi de causa potest canonico theo-
logo committere ut, loco lectionum in ecclesia, sacras
disciplinas in Seminario doceat.
Can. 401
§ 1. Poenitentiarius canonicus turn ecclesiae cathe-
jle
/ ' J ^ Original fro m
UNIVERSITY OF WISCONSIN
■
pi
438 ECCLESIASTICAL PERSONS
N
dralis turn ecclesiae collegialis obtinet a iure potcsta-
tcm ordinariam, quam tamcn aliis delegare non potest,
absolvendi etiam a peccatis et a censuris Episcopo rc-
servatis, in dioecesi extraneos quoque, et dioecesanos
extra territorium quoque dioecesis.
§ 2. Debet in sede excipiendis confessionibus sibi in
capitulari ecclesia destinata residere tempore ad fide-
lium commoditatem, iudicio Episcopi, opportuniorc et
praesto esse iis qui ad confttenda sua peccata accedunt
ipso quoque divinorum ofneiorum tempore.
Can. 402
Si Capitulo adnexa sit cura animarum, haec exer-
ceatur a vicario paroeciali ad normaxn can. 471.
In every cathedral church there should be a canon
theologian, and, wherever possible, also a canon peniten-
tiary (confessor).
Also in the collegiate churches, especially the distin-
guished ones, there may be both a canon theologian and
a canon penitentiary.
The canon theologian and the penitentiary should be
chosen from among those who are best fitted for their
respective tasks ; but, other things being equal, a doctor
of divinity is to be preferred for canon theologian, and a
doctor of divinity or canon law for penitentiary. It is
also becoming that the penitentiary shall have completed
the thirtieth year of age.
The prebends of a theologian and poenitentiarius shall
never be conferred on any candidate until an investigation
has been made as to his life, moral conduct and knowl-
edge, and by observing the concursus, if this be the law.
The canon penitentiary is not allowed to hold or ex-
ercise any office in the diocese which has attached to it
jurisdiction in foro externo.
oogle
v ,|,, Original fro rn
UNIVERSITY OF WISCONSIN
CANON 402 439
The office of the canon theologian is to expound Holy
Scripture publicly in church, on days and at hours desig-
nated by the bishop with the advice of the chapter. The
bishop may also entrust him with the exposition of other
doctrinal matter.
The canon theologian must fulfill his office personally,
and in case he is p/evented for more than six months, he
must employ at his own expense another priest, to be
designated by the bishop.
For urgent reasons, the bishop may employ the canon
theologian as professor in the theological seminary, in-
stead of lecturer in the church.
If a comparison be allowed between the old and the
new law,27 a certain mitigation is here noticeable, whether
for better or for worse is not our business to determine.
The old law excluded all other employment, even in the
seminary, while the new permits the theologian to be pro-
fessor of a theological — not petit — seminary. Probably
new conditions, especially the lack of fit men and scarcity
of priests, required the mitigation.
The canon poenitentiarius of a cathedral or collegiate
church enjoys the ordinary power (which, however, he
cannot delegate to others) of absolving all, even strang-
ers in the diocese, from sins and censures reserved to the
bishop. Outside his own territory he may absolve the
subjects of his diocese.
He must sit in the confessional assigned to him in the
capitular church at the time which, according to the
judgment of the bishop, is most convenient for the faith-
ful, and must be ready to hear confessions even during
divine service.
»TCf. Trid., Sew. 5, c. 1, de ref. XIV, Z># Synod. Dio,c, XIII, 9.
and the decisions of the S.C.C. in 17.
Richter, Trid., p. 16 ff.; Benedict
>Ie
k .,1,., Original from
UNIVERSITY OF WISCONSIN
44Q ECCLESIASTICAL PERSONS
The faculties of this official are enlarged under the
Code, especially concerning strangers and strange terri-
tory and as to cases reserved to the bishop.28 Reserved
to the bishop are those cases prescribed by law and desig-
nated as such by the bishop himself (cfr. Title IV, Book
III).
■
If the chapter has charge of souls (euro) this must be
entrusted to a vicar, according to canon 471.
THE APPOINTMENT TO CANONICATES
•a
Can. 403
Exceptis dignitatibus, ad Episcopum pertinet, au-
dito Capitulo, conferre omnia et singula beneflcia ac
canonicatus in ecclesiis turn cathedralibus turn colle-
gialibus, reprobata quavis contraria consuetudine et re-
vocato quolibet contrario privilegio, sed firma contraria
fundationis lege et praescripto can. 1435.
Can. 404
§ 1. Canonicatus Episcopus conferat sacerdotibus
doctrina vitaeque integritate praestantibus.
§ 2. In canonicatuum collatione, ceteris paribus, ra-
tio habeatur illorum qui doctores in sacra theologia vel
iure canonico renuntiati fuerint in aliquo athenaeo, vel
laudabiliter ministerium ecclesiasticum aut magistc-
rium exercuerint, firmo praescripto can. 130, § 2.
Can. 405
§ 1. Dignitates, canonici et beneficiarii, capta legi-
time beneficii sui possessione ad normam can. 1443*
ia Cfr. Trid.. Seu. 34, c. 8, de ref. Richter, Trid., p. J44 *.; Boubr,
/. c, p. 135 *•
>Ie
J ^ Original from
UNIVERSITY OF WISCONSIN
fessors.
CANON 406 441
1445, statim pro gradu suo acquirunt, praetcr insignia
ac privikgia propria, scamnum in choro, ius percipiendi
fructus ac distributiones, ac vocem in capitulo ad nor-
mam can. 411, § 3.
§2. De fidei professione ab ipsis ante captam pos-
sessionem emittenda servetur praescriptum can. 1406-
1408.
The dignities excepted, all benefices and canonicatcs
in cathedral and collegiate chapters are conferred by the
bishop after hearing the chapter. All customs to the
contrary are rejected and all privileges revoked, but the
law of foundation as well as foundations made in Rome
(can. 1435, § 3) remain in force.
The bishop should confer canonries on priests who are
distinguished for learning and virtuous life. Other
things being equal, those candidates should be preferred
who are doctors of divinity or of canon law, or have dis-
tinguished themselves in the sacred ministry or as pro-
Dignitaries, canons and beneficiaries, after having duly
taken possession of their office (can. 1443-1445), besides
their insignia and privileges, immediately obtain a seat
in the choir (stall), the right of receiving their income
and sharing in the daily distributions, and a voice in the
chapter, according to can. 411, § 3
As to the profession of faith to be pronounced before
their taking possession, see can. 1406-1408.
honorary canons
Can. 406
§ 1. Episcopo, non autem Vicario Generali, nee Vi-
cario Capitulari, ius est canonicos ad honorem nomi-
1 Original from
lt UNIVERSITY OF WISCONSIN
442 ECCLESIASTICAL PERSONS
nandi sivc dioecesanos sivc extra-dioecesanos cum con-
silio Capituli cui canonicus est adscribendus, sed F.pi-
scopus raro et caute hoc iure utatur.
§ a. Sacerdotem alienae dioecesis canonicum ad ho-
norem nominaturus, Episcopus, praeter Capituli sui
consilium, Ordinarii, cui subiectus est nominandus, as-
sensum impetret, sub poena nominationis irritae, eun-
demque Ordinarium insignia edoceat ac privilegia quo-
rum usum nominandus exinde habiturus sit
§ 3. Canonici ad honorem extra dioecesim in qua
nominati sunt degentes, numero sint tertia parte mino-
res canonicis titularibus.
Can. 407
§ 1. Canonici ad honorem aiicuius basilicae vel ec-
clesiae collegialis almae Urbis, privilegiis et insignibus
uti possunt tantum intra eiusdem basilicae vel collegia-
tae ecclesiae eiusque filialium ambitum ; canonici vero
ad honorem aliarum ecclesiarum extra Urbem, privile-
giis et insignibus utantur in dioecesi tantum ubi nomi-
nati sunt, non autem extra dioecesim, nisi ad normam
can. 409, § 2.
§ 2. Canonici ad honorem, praeter insignia et pri-
vilegia seu iura honorifica, obtinent etiam scamnum in
choro.
The bishop (not the vicar-general or the vicar-capitu-
lar) has the right of nominating, with the advice of the
chapter, honorary canons, either from his own or a
strange diocese ; but this right should be used rarely and
with caution. In appointing a priest of a strange dio-
cese honorary canon, the bishop must, besides the advice
of his chapter, have the consent of the Ordinary to whom
5 <vmiL' Originalfrom
■OOgie UNIVERSITY OF WISCONSIN
-
-'
CANON 408 443
the priest is subject, under penalty of the nomination
being null and void ; besides, the bishop must inform the
strange ordinary as to the insignia and privileges which
the honorary canon shall enjoy.
The number of honorary canons living outside the dio-
cese for which they are named must be one-third less
than of the titular canons (such as hold a canonship in
titultm; cfr. can. 1439).
The honorary canons of basilicas and collegiate
churches of the city of Rome enjoy their privileges and
insignia only within the precincts of the respective basil-
ica or collegiate church and their dependencies. Honor-
ary canons of churches outside of Rome may use their
privileges and insignia only in the diocese for which they
are named, but not in another, except when they accom-
pany the bishop or represent the bishop at occasions
mentioned in can. 409, § 2.
Honorary canons, besides their insignia and privileges
(honorary rights) are also entitled to a seat (stall) in
the choir.
The order of precedence in chapters and for single
canons is established as follows:
Can. 408
§ 1. Capitulum cathedrale praecedit collegiali, etiam
insigni, in ipsa quoque collegiali ecclesia; Capitulum
insigne praecedit non insigni ; in eodem Capitulo, salvxs
peculiaribus statutis, vel legitimis consuetudinibus,
dignitates, servato inter se praecedentiae ordine,
praecedunt canonicis ; canonici antiquiores, qui nempe
prius possessionem ceperunt, poster ioribus ; canonici ti-
tulares, honorariis; honorarii, beneficiariis ; dignitates
vero aut capitulares charactere episcopali ornati omni-
jfe
k ,1,., Original from
UNIVERSITY OF WISCONSIN
444 ECCLESIASTICAL PERSONS
bus dignitatibus ac canonicis in prcsbytcrali tantum or-
dinc constitutis pracccdunt.
§ 2. In Capitulis in quibus habentur distinctae prae-
bcndae presbyterales, diaconales, subdiaconalcs, scrvc-
tur praecedentia ordinis ; et in eodem ordine praeceden-
tia receptionis in ordinem, non autem in Capitulum.
■
The cathedral chapter takes precedence over the col-
legiate chapter, even though this be a distinguished one
and in its own church ; a distinguished chapter over the
one which does not enjoy that prerogative. In the same
chapter, unless particular statutes and customs rule
otherwise, the dignitaries have precedence over the
canons; the senior canons over the junior, according to
the time of possession; the titular canons over the hon-
orary ; the honorary canons over the beneficiaries. Dig-
nitaries or capitularies endowed with the episcopal char-
acter take precedence over all other dignitaries and
canons who are only priests.
In chapters which have distinct classes of priests, dea-
cons, and subdeacbns, precedence is regulated accord-
ing to these orders, and, in the same order, according to
the time of ordination, not the date of reception into
the chapter.
insignia
Can. 409
§ 1. In unaquaque ecclesia turn cathedrali turn col-
legiali, qui in dignitate episcopali sunt constitute de-
f erant in choro vestem episcopalem ; ceteri omnes, di-
gnitates, canonici et benenciarii, vestem sibi in bulla
erectionis assignatam vel apostolico indulto Con-
cessam; secus censeantur tanquam absentes.
►ogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 409
445
N
§ a. Vcstcm choralem aut spccialia insignia capi-
tularia adhibere possum in tota dioecesi in qua est Ca-
pitulum, sed, reprobata contraria consuetudine, non
extra dioecesim, nisi vel Episcopum comitentur vel
Episcopum aut Capitulum repraesentent in Conciliis
aliisve sollemnitatibus.
-
-
Bishops wear the episcopal dress in choir; all others,
dignitaries, canons, and beneficiaries, the dress assigned
to them in the document of erection or granted by Apos-
tolic indult. If they appear in any other garb, they are
to be considered as absent
Members of the chapter may wear their choir dress or
special insignia throughout the diocese, but not outside
of it, except when they accompany their bishop or repre-
sent him at a council or other solemnities. All contrary
customs are abolished.
The dress of canons generally — for the Code admits
prerogatives established by written law — consists of the
rochet, mozzetta, cappa, and almutium.2* The latter two
appear united in the manteletta with a small hood. The
new Code allows the canons to wear this choir dress
in all the churches of the diocese, which is an extension
of their former rights. For formerly,80 unless they ap-
peared in a body, the canons could wear this dress only
in their own churches. Now they are entitled to wear it
in the whole diocese, including the churches of exempt
religious ; for the text makes no distinction.
20 The word rochet is said to be
derived from the Greek ton chiton,
i. €., soft tunic; moeseita from the
Italian moea, i.e., cap, whilst almu-
tium is said to be derived from
aJmuM (Mutze), a late medieval
German word; Bouix, De Capitulis,
p. 504 «"•
10 Bouix, /. c, p. 51a f. There
are many decisions concerning our
subject to be found in the Decrttt
Auth, S. R. I. C.
oogle
Original from
UNIVERSITY OF WISCONSIN
446 ECCLESIASTICAL PERSONS
statutes and meetings
Can. 410
§ 1. Sua cuique Capitulo statuta ne desint, ab om-
nibus dignitatibus, canonicis, beneficiariis religiose ser-
vanda.
§ 2. Statuta capitularia, per legitimum actum ca-
pitularem condita, approbanda subiiciantur Episcopo,
sine cuius auctoritate postea nee abrogari possunt nee
mutari.
§ 3. Si, Episcopo edicente ut statuta conficiantur,
Capitulum id praestare neglexerit, exacto sexto ab inti-
matione mense, Episcopus eadem conficiat imponatque
Capitulo.
D
Can. 411
§ 1. Stato tempore ac loco conveniat canonicorum
coetus de suae ecclesiae et Capituli negotiis acturus;
alii praeterea conventus haberi poterunt, quoties id aut
Episcopo aut Capituli praesidi aut maiori canonicorum
parti expedire videatur.
§ 2. Ad habendum coetum ordinarium non est ne-
cessaria specialis convocatio ; quae tamen ad extraordi-
narium requiritur, et facienda est secundum statuta ca-
pitularia.
§ 3. In capitulis vocem habent canonici, exclusis
honorariis, et dignitates, si una cum canonicis Capitu-
lum constituant ad normam can. 393, § 2.
Every chapter must have its statutes, which are to
be observed conscientiously by all, dignitaries, canons,
and beneficiaries.
The statutes, after having been established by a legiti-
Gi Original fro m
OOglt UNIVERSITY 0FWI5C0NSIN
CANON 411 447
mate capitular act, must t>e submitted for approval to the
bishop, without whose authority no change can after-
wards be made.
If the chapter, though admonished thereto by an epis-
copal edict, neglects to adopt statutes, the bishop, after
six months from the date of the edict being intimated,
should himself compose statutes and impose them on the
chapter.
Formerly a chapter could make statutes either in writ-
ing or by way of custom, and they needed no appproval
by the bishop as long as they touched the canons' own
affairs.81 But now no statutes can be enacted without
episcopal approval. Besides, the chapters are obliged
to write down their statutes, and may be compelled
thereto by an episcopal edict, «\ e.t a peremptory admoni-
tion issued in writing and brought to the notice of the
canons in a canonical way. No abrogation or change is
allowed without the knowledge and approval of the
bishop.
A capitular act is one concluded and agreed upon by
the majority of canons assembled in chapter.
The chapter should meet at stated times and places in
order to deliberate on the affairs of the church and
chapter.
Besides these regular meetings, others may be held as
often as the bishop, or the president of the chapter, or the
majority of the canons, deem it opportune.
For a regular meeting no special summons is necessary,
but for an extraordinary assembly summons must be is-
sued according to the statutes of the chapter.
In the chapter all canons, except the honorary, as well
as the dignitaries, if the latter belong to the body of
81 Cfr. Boabt, Dt Capihtlu, p. 408 ff .
jle
( * -» -. -.L-. Original from
UNIVERSITY OF WISCONSIN
448 ECCLESIASTICAL PERSONS
canons, enjoy the right to vote. (Cfr. can. 393, § 2.)
As the matter is of importance for our diocesan con-
suitors, a few notes may further illustrate the text.
The regular meetings should be established by statu-
tory agreement, in order that the canons do not incur
the danger of being condemned in contumaciam if they
fail to appear.
Extraordinary meetings may be called as often as im-
portant affairs require it, by the bishop, by the president
of the chapter (provost, dean), or by the majority of the
members.
The majority is taken relatively to those who do not
desire a chapter meeting; for instance, if the chapter con-
sists of eight canons, five are a majority.
For the ordinary or regular meetings, no special sum-
mons is required. Hence the absentees lose their vote
and cannot demand a rehearsal of the proceedings.
Two-thirds always form a quorum, but at regular
meetings two-thirds are not required if only three mem-
bers are present, according to the saying, " Ire s faciunt
collegium." We presuppose, of course, that the statutes
contain nothing to the contrary. To extraordinary meet-
ings, all the capitulars must be called. The summons
must mention the time and place of the meeting, and if
necessary, also the subject-matter to be considered.
Should any member be unlawfully neglected by the one
who calls the meeting, he may remonstrate against any
decision made at that meeting and have it nullified.**
Hence, whenever the bishop is ordered to ask the chapter
to meet for affairs designated as requiring the chapter's
cooperation, he must call a meeting, — not simply ask the
advice or consent of the members in writing, — because
<
BaThU is the doctrine commonly held by canonists. Cfr. Bouix,
L c, p. 182 ff.
06 ty Google
I ^ Original from
UNIVERSITY OF WISCONSIN
CANON 412 449
the chapter signifies the meeting of the whole body, not
the vote of single canons or consultors.
Whether the vote is to be taken secretly or viva voce,
is not determined, except for elections, and therefore bal-
loting may take place either way, unless the statutes pre-
scribe or the consultors by previous vote have adopted a
specified mode.
The majority of votes is calculated in proportion to
those present and relative to the number of yeas and
nays; for instance, if thirteen are present, seven affirma-
tive votes carry the resolution against the six contradic-
tory votes.
What the Code says concerning dignitaries is to be un-
derstood of such as do not by right belong to the chap-
ter according to its constitution; for instance, the vicar-
general as such is not counted to be of the chapter in
many cathedral chapters. But this depends upon the
statutes.
DUTIES OF CANONS
Can. 412
§ z. Canonici sive ecclesiae cathedralis sive colle-
gialis Episcopo solemnitcr Missam celebranti aut alia
pontificalia cxercenti, etiam in aliis ccclesiis civitatis
aut suburbii, ab eodem invitati, assistere et inservire
debent, dummodo iudicio Episcopi sufficiens canonico-
rum et ministrorum in ecclesia numerus maneat: ct
eundem accedentem ad ecclesiarn cathedralem et re-
deuntem comitari ad normam Caeremonialis Episco-
porum.
, § a. Epicopus potest duos e Capitulo sive cathe-
drali sive collegiali assumere ac retincre ut sibi in ec-
clesiastico ministerio ac dioecesis servitio assistant.
I Original from
' K H 'gie UNIVERSITY OF WISCONSIN
45o ECCLESIASTICAL PERSONS
Can. 413
§ 1. Quodlibet Capitulum obligatione tcnctur quo-
tidie divina officia in choro rite persolvendi, salvis fun-
datioms legibus.
§ 2. Divinum officium comprehendit psalmodiam
horarum canonicarum et celebrationem cum cantu Mis-
sae conventualis, praeter alias Missas vel secundum ru-
bricas Missalis vel ex piis fundationibus celebrandas.
§ 3. Missam conventualem sine cantu celebrare li-
cet hebdomadario, cum in ecclesia, pontificali ritu, Epi-
scopus vel alius loco Episcopi celebrat
■
Can. 414
Omnes et singuli qui chorale beneficium obtinent,
tenentur in ipso choro divina officia persolvere singulis
dicbus, nisi servitium per turnum a Sede Apostolica
aut fundationis legibus fuerit indultum.
Can. 415
§ x. Si ecclesia cathedralis aut collegialis simul sit
paroecialis, relationes iuridicae inter Capitulum et pa-
rochum reguntur normis quae sequuntur, nisi aliud fe-
rat aut Sedis Apostolicae indultum aut particularis
conventio in erectione paroeciae inita et a loci Ordina-
rio legitime probata.
§ 2. Ad pa ro chum spec tat :
i.° Applicare Missam pro populo et, debito tem-
pore, praedicare ac christianam doctrinam fideles edo-
cere ;
2.0 Custodire libros paroeciales et ex iis attesta-
tiones extrahere;
3.0 Functiones paroeciales peragere de quibus in can.
oogle
C* ^ v ,1,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 415 451
46a. Iusta funebria, in ecclesia ad normam iuris
peragenda, non exclusa Missa exsequiali, persolvere
ad Capitulum pertinet tantum in casu quo de funere
agatur alicuius dignitatis, vel canonici, ctiam honorarii
tantum, vel beneficiarii ;
4.0 Alias functiones non Btricte paroeciales pera-
gcre quae in paroeciis fieri solent, modo non impediatur
chorale servitium, nee Capitulum easdem functiones
peragat;
5.0 Eleemosynas in bonum paroecianorum colligere,
easdem directe vel indirecte oblatas recipere, adxni-
nistrare et secundum off erentium voluntatem distribu-
ere.
§3. Ad Capitulum spectat:
i.° distort ire Sanctis si mum Eucharistiae Sacramen-
tum; Bed altera sacri ciborii clavis apud pa ro chum
servari debet;
a.° Invigilare ut in f unction ib us a parocho in capi-
tular! ecclesia peragendis leges liturgicae observentur ;
3.0 Ecclesiae curam habere eiusque bona admin i-
strare cum piis legatis.
§ 4. Nee parochus capitulares nee Capitulum paroc-
ciales functiones et munera irnpediat; exorto autem
conflictu, quaestionem dirimat loci Ordinarius, qui in
primis curare debet ut catechetica instructio et
Evangelii explicatio hora ndclibus commodiore semper
habeatur.
§ 5. Non solum Capitulum impedire nequit paro-
chum in exercenda paroeciali cura, sed insuper sciant
capitulares se ex caritate teneri, maxima si designati
coadiutorcs desint, eidem adiutricem operam navare,
secundum modum ab Ordinario loci determinandum.
2
-
oogle
^ ,|rt Original from
UNIVERSITY OF WISCONSIN
452 ECCLESIASTICAL PERSONS
Can. 416
In statutis capitularibus iusta designetur norma,
ad quam canonici ct beneficiarii in scrvitio altaris fun-
gantux per turnum turn officio celebrantis turn etiam
ministerio diaconi ac subdiaconi, exclusis tamen ab hoc
-
ministerio dignitatibus, canonico theologo, poenitentia-
rio et, si praebendae distinctae habeantur, canonicis
ordinis presbyteralis.
The canons of a cathedral or collegiate chapter, if in-
vited, are obliged to assist and serve the bishop at the
celebration of pontifical High Mass or other pontifical
functions in other churches of the city or its suburbs,
provided that a sufficient number of canons and ministers,
according to the bishop's judgment, is left at the cathe-
dral or collegiate church. Besides, they must accompany
the bishop on his way to and from the cathedral according
to the Caeremoniale Episcoporum™
The bishop is entitled to assume and retain two mem-
bers of either the cathedral or collegiate chapter to as-
sist him in the ecclesiastical ministry and diocesan ser-
vice.
Every chapter is bound to recite the divine office daily
and properly in the choir, with due regard to the laws of
foundation.
The divine service comprises the singing of the ca-
nonical hours and the celebration of a conventual high
mass, besides other masses to be celebrated according to
the rubrics of the Missal or the laws of foundation.
A low Mass may be celebrated as conventual mass by
the hebdomadarian, if the bishop, or another bishop in
his place, sings a pontifical Mass in the church.
08 Cfr. the decisions of the S. C. BouU, D> Capitulis, p, ,:Co ff.
Cone, in Richter, Trid,, p. 354 *•
>Ic
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 416 453
All who hold a choir benefice are bound to perform
the divine service in the choir every day, unless the Apos-
tolic See or the law of foundation allows the service to
be performed per turnum (by turns).
Choir service means, of course, not only personal pres-
ence, but active cooperation in the recitation and singing.
This has been expressly decided by the S. C. Concilii on
various occasions." Hither also belongs some knowl-
edge of the Gregorian Chant. aB
If the cathedral or collegiate church serves as parish
church, the following rules must be observed. (Excep-
tions are admitted only if an Apostolic indult has been
obtained to that effect, or an agreement lawfully approved
by the Ordinary entered upon at the time the parish was
erected). The rules are:
The parish priest has the following obligations:
(1) To apply the Mass for the people and to preach
and teach catechism at the times prescribed ;
(2) To keep the parochial books and take from them
the attestations required;
(3) To perform the funeral services (cfr. can. 462) ;
the chapter may hold funeral services, Mass not ex-
cluded, only for a dignitary, a canon, an honorary canon,
or a beneficiary ;
(4) To perform such other functions as are usually
held in parish churches, provided, however, that the choir
services do not interfere, or that the chapter perform the
same;
(5) To collect alms for the good of the parishioners
and accept such as are either directly or indirectly of-
3i Cf Benedict XIV, De Syn. ris addiscere cantum quern vo-
Dioec, XI, 3, 8; XIII, 9, 11; Inttit. camus Grcgorianum." (Thui Gar-
EccL, 107, 83. *ia et Pignatelli) Bouix, L c, p.
81 " Ipsi trncntur ex vi tut mtrne- 3*3.
jte
Original from
UNIVERSITY OF WISCONSIN
454' ECCLESIASTICAL PERSONS
fered, to administer and distribute them according to the
donor's intention.
The chapter on its part is bound :
(i) To take care of the Blessed Sacrament, but leave
one key with the parish priest;
(2) To see to it that the liturgical rules are observed
by the parish priest in the performance of all functions
in the chapter church ;
(3) To take care of the church and administer its pos-
sessions and legacies.
*The parish priest shall not interfere with the functions
of the chapter, nor the chapter with the parochial func-
tions. Should a conflict arise, the Ordinary should set-
tle the question. He shall also take special care that
catechetical instructions and gospel explanations be given
at an hour most convenient for the faithful.
Not only should the chapter not interfere with the
parish priest in the exercise of his parochial duties, but
the capitulars should also remember that charity obliges
them to lend a helping hand to the parish priest, accord-
ing to the ways and means established by the Ordinary,
especially if no sufficient number of assistants is avail-
able.
The chapter statutes should prescribe a just rule, ac-
cording to which the canons and beneficiaries shall take
turns in serving at the altar, either as celebrants, or as
deacons and subdeacons; but the dignitaries, the canon
theologian and the canon penitentiary, as also the canon
priest, if there are distinct prebends, should not act as
deacons and subdeacons.
Can. 417
§ 1. Miss a conventualis applicanda est pro benefac-
toribus in gencre.
>Ie
j ^ Original from
UNIVERSITY OF WISCONSIN
c
-
CANON 418 455
§ 3. Capitularis infirmitatc detentus non tenetur
clecmosynam praebere sacerdoti capitulari, qui ipsius
vicem supplet in Missae conventual! s celebratione et
applicatione, nisi statuta capitularia vel particularis
consuctudo aliud ferant
§ 3. Servari potest consuetudo praebendi stipem ce-
lebranti vel ex cumulo distributionum vel ex reditibus
omnium praebendanun per contributum.
The conventual Mass must be applied for the benefac-
tors in general.
A capitular prevented by illness is not obliged to offer
a stipend for the Mass celebrated and applied by another
capitular in his stead, unless the statutes of the chapter
or a particular custom so prescribe.
The custom of offering a stipend to the celebrant either
from the distributions or from the contributions accruing
out of all the prebends, may be retained.
RIGHTS AND PRIVILEGES OF CANONS
Can. 418
§ 1. Reprobata contraria consuetudine, canonic! ac
beneficiarii quotidiano choro adstricti. possunt singuli
abesse tres tantum menses in anno, sive continuos sive
intermissos, dummodo propriae ecclesiae statuta aut
legitima consuetudo servitium diuturnius non requi-
rant.
§ 2. Sine causa legitima et speciali Episcopi licen-
tia nee feriari licet Quadragesimae et Adventus tem-
pore, aut in praecipuis anni sollemnitatibus de quibus
in can. 338, § 3 ; nee permittitur uno eodemque tempore
capitulares ultra tcrtiam partem abesse.
§ 3. Tempore vacationum omne genus distributio-
oogle
fcrt|A Original from
UNIVERSITY OF WISCONSIN
456 ECCLESIASTICAL PERSONS
ncs amittuntur, non obstante rcmissione ab aliis capi-
tularibus facta; sed percipiuntur praebendae proventus
aut duae tertiae distributionum partes, si omnes prae-
bendae proventus in distributionibus consistant
Can. 419
§ x. In ecclesiis in quibus non omnes simul choro
intersunt, qui ad cum adstringuntur nequeunt per
alium huic obligation! satisfacere, nisi in casibus par-
ticulai ibus, iusta ac rationabili de causa, et modo sub-
stitutus eodem tempore servitio chori non sit adstri-
ctus, et sit in eadem ecclesia canonicus, si agatur de
supplenda vice canonici, beneficiarius, si de beneficiarii ;
qui vero ad chorum non adstringuntur, obligatione re-
sidendi in loco beneficii non tenentur per dies quibus a
choro absunt.
§ 2. Si quis eodem die urgeatur onere utriusque
Missae et pro populo et conventual!, hanc ipse celebret
applicetque per se, illam per alium vel per se die se-
quenti.
Can. 420
§ 1. Ita excusantur a choro ut percipiant fructus
praebendae ac distributiones quotidianas :
i. Capitulares iubilati ad normam can. 422, §2;
2.0 Canonicus theologus singulis diebus quibus suo
munere fungitur;
3.0 Canonicus poenitentiarius dum tempore chori
vacat confessionibus audiendis;
4.0 Vicarius paroecialis aliusve e Capitulo sive pa-
rochus sive coadiutor ab Episcopo deputatus, dum pa-
roecialibus vacat officiis ;
5." Qui inrlrmitate a Hove physico im pediment o
choro prohibentur assistere;
oogle
(^ ^ , ,1,^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 421 457
6.° Qui pontificia legatione alibi funguntur aut per-
sona e Roma ni Pontificis actu inserviunt ;
7.0 Qui piis exercitiis vacant ad norm am can. 126;
quo tamen indulto semel tantum in anno chori servitio
liberantur ;
8.° Accede ntes una cum Episcopo aut eiusdem vice
ad visitanda Limina Apostolorum;
g.° Qui ab Episcopo vel Capitulo mittuntur ad Con-
cilium Oecumcnicum, plcnarium, provincialc aut ad
Synodum dioccesanam ;
io.° Qui de Capituli consensu, non contradicentc
Episcopo, absunt a choro ob Capituli scu propriae ec-
clesiae utilitatem ;
zi.° Qui Episcopo sacra peragenti assistunt ad
normam can. 412, § 1 ;
12. ■ Qui Episcopum comitantur in visitationc
dioecesis vel visitationem ipsam eius nomine et man-
dato peragunt;
13.0 Qui operam navant conficiendis processibus in
causis de quibus in can. 1999 seqq., vel uti testes in his
causis vocati sunt, pro diebus et horis quibus hoc
officium praestant;
14. ° Parochi consultores, examinatores et iudices
synodales, dum proprio munere funguntur.
§2. Distributiones vero quae inter praesentes di-
cuntur, ii tantum percipiunt, qui in § 1, nn. 7, 11, 13,
enumerantur, nisi obstet fundatorum expressa volun-
tas.
Can. 421
p
§ 1. Excusantur a choro, sed percipiunt praebendae
fructus dumtaxat, non autem distributiones:
i.° Qui de licentia Ordinarii loci publice docent in
scholis ab Ecclesia recognitis sacram theologiam aut
jle
£ " ^ , ,|,, Original from
UNIVERSITY OF WISCONSIN
Q
458 ECCLESIASTICAL PERSONS
ius canonic um ;
3.° Dantes operam studio sacrae theologiae aut iu-
ris canonici in publicis scholis ab Ecclesia probatis, de
Ordinarii liccntia;
3.0 Vicarius Capitular is, Vicar ius Genera lis, officialis
ac cancellarius, si dc gremio sint, dum suis muncribus
vacant;
4/ Canonici qui Episcopo inscrviunt ad normam
can. 41a, § a.
§ 2. Quod si omnes praebendae fructus consistent
in distributionibus, vel adeo sint tenues ut tcrtiam di-
stribu tionum partem non attingant, tunc memorati om-
nes duas tantum tertias partes distributionum lucran-
tur, cumulates ex fructibus praebendae ac distributio-
nibus.
Can. 423
§ 1. Praebenda fruentes ab Apostolica tantum Sede
impetrare possunt indultum emeriti seu, ut aiunt, iubi-
latioms post continuum et laudabile quadraginta anno-
rum in eadem vel distinctis ecclesiis eiusdem civitatis
vel saltern dioecesis chori servitium.
§ 1. Iubilatus, etiamsi in loco henencii non res id eat,
percipit turn fructus praebendae turn distributiones
etiam inter praesentes, nisi obstent expressa fundato-
rum vel oblatorum voluntas, ecclesiae statuta aut con-
suetudo.
c
§ 3. Ius optandi, si ex lege fundationis competat, non
est capitulari iubilato.
N
■
9
Canons and beneficiaries who are obliged to choir serv-
ive may take a three months' vacation ivery year, either
at once, or with interruptions, unless the statutes of their
church or legitimate custom require a more protracted
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 422 459
service, every other custom to the contrary notwithstand-
Without a lawful reason and the special permission of
the bishop, no holidays are allowed during Lent and Ad-
vent and on the principal feastdays of the year (can. 338,
§3); neither are more than one-third of the chapter
members permitted to be absent at one time.
During vacation all distributions are lost, notwith-
standing any remittance (condonation) made by the other
capitulars; but the income from the prebends or two-
thirds of the distributions, if the whole salary consists
in such, is to be granted.
In churches which do not require the attendance of all
the capitulars at the same time, those who would be
obliged to assist are not allowed to send a substitute,
except in particular cases and for a legitimate and reason-
able cause. The substitute must not be one who is him-
self at the same time obliged to choir service ; he must
not be a canon of the same church if he takes the place of a
canon, or a beneficiary of the same church if he supplies
a beneficiary.8*
If one is under obligation of saying two Masses on
the same day, one for the people and the other as con-
ventual Mass, he shall himself celebrate and apply the
conventual Mass, and say the Mass for the people on the
following day, or he may engage a substitute to apply it
for him (of course, we suppose, by giving him a stipend).
Although receiving the income from their prebend and
the daily distributions, the following are excused from
choir service:
(1) The capitulars who are jubilarians (cf. can. 422,
§2);
■"■
BflCf. Trid., S«m. 34, c i», de Trid.t p. 359; Bouix, /. c.f p. 3*6 ft.
ref. and the decisions in Ricbter,
oogle
Original fro m
UNIVERSITY OF WISCONSIN
460 ECCLESIASTICAL PERSONS
(2) The canon theologian on (he days when he per-
forms his special office;
(3) The canon penitentiary if he hears confessions
during choir service;
(4) The parish priest, or any member of the chapter
appointed by the bishop as parish priest or assistant,
while occupied in parochial duties;
(5) Those who are prevented from attending choir
by sickness or any other physical obstacle;
(6) Those who act as papal legates or are in the per-
sonal service of the Roman Pontiff;
(7) Those who are in retreat (can. 126), for which
reason, however, they are excused only once a year ;
(8) Those who visit with the bishop, or in his place,
the sacra litnina (Rome) ;
(9) Those who are sent by the bishop or chapter to a
general, plenary, or provincial council, or to a diocesan
synod ;
(10) Those who are absent from choir with the con-
sent of the chapter, without the bishop objecting to it,
for the utility of their chapter or church ;
(11) Those who assist the bishop when pontificating
(can. 412) ;
(12) Those who accompany the bishop on a diocesan
visitation or make such visitation in his name and by his
mandate ;
(13) Those who are employed in the lawsuits men-
tioned in can. 1999 ff., or on the witness-stand, but only
while actually so employed ;
(14) The parish priests who are consultors, as well as
examiners and synodal judges, whilst occupied in their
office.
However, the distributions, which are strictly reserved
oogle
k ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 422 461
to those present, can be gained only by those mentioned
under nn. i, 7, u, 13, unless the will of the founders con-
tains a contrary clause.
The following are excused from choir service, and re-
ceive only the salary of the prebend, but no share in the
distributions :
(1) Those who, with the permission of the Ordinary,
teach dogmatic or moral theology (scripture, church his-
tory) or canon law in a Catholic school ;
(2) Those who study any of these sciences in a school
recognized by the Church, with the permission of the
Ordinary ;
(3) The vicar-capitular, the vicar-general, the ofRcialis,
and the chancellor, if they belong to the chapter, whilst
occupied in their office ;
(4) The canons serving the bishop.
If the whole income of a prebend consists of the dis-
tributions, or if it is so small that it would not amount
to the third part of the distributions, then the aforesaid
(§ I, 1-4) clergymen receive two-thirds of the distribu-
tions which arc accumulated from the revenues of pre-
bends and distributions.
Prebendaries can obtain the indult of iubilatio from
the Apostolic See after a continuous and praiseworthy
choir service of forty years either in the same church, or
in different churches of the same city, or, at least, of the
same diocese.
A jubilnrian, although not residing at the place where
his benefice requires him to reside, receives the whole in-
come as well as the daily distributions, even those other-
wise given only to attendants in choir, unless the ex-
press law of foundation, or the will of the founder, or
the statutes, or a custom of the chapter, prohibit this.
jle
, ,|r> Original from
UNIVERSITY OF WISCONSIN
462 ECCLESIASTICAL PERSONS
The right of optioning, although permissible by the la\r
of foundation, cannot be claimed by a jubilarian."
5" Cf, Richter, Trid., p. 360 ff. was merely a custom, for no law
Benedict XIV, Dt Synod. Diotc, existed about it.
XIII, o, 15. Formerly mbtUiio
( %rinnl*> Original from
jf^OOglL UNIVERSITY OF WISCONSIN
CHAPTER VI
DIOCESAN CONSULTORS
It must be gratifying to the church in the U. S. to
see embodied in the new Code an institution which the
Plenary Councils of Baltimore introduced. The Fathers
of these councils realized, on the one hand, that — not
to speak of the penuria sacerdotutn — the ecclesiastical
funds were not in a condition to permit the establishment
of regular chapters, and, on the other hand, many of the
bishops were overburdened with work. Hence the ap-
peal of the II Plenary Council for helpers and counsel-
lors on whom the bishops might unload a part of their
burden.1 In establishing diocesan boards of consultors,
they followed the custom of other dioceses in similar
condition, and, not improbably, the acts of the Council
of Lebanon * offered an example. The new Code in a
special chapter treats of these diocesan consultors, whose
existence, of course, is the result of peculiar conditions.
Can. 423
In quibus dioecesibus nondum constitui potuit resti-
tuive cathedrale canonicorum Capitulum, instituantur
ab Episcopo, salvis peculiaribus Apostolicae Sedis prae-
scriptis, consultores dioecesani. hoc est sacerdotes pie-
tate, moribus, doctrina ac prudentia commendati.
1 Cfr. Concilii Pltnarii Haiti- timore 1868, p. S3 *-
mcrtnsis //. Acta tt Decnta, Bal- 2 Printed in Rome. 1820.
OOglL UNIVERSITY 0FWI5C0NSIN
■
464 ECCLESIASTICAL PERSONS
Can. 424
Consultores nominat Episcopus, firmo praescripto
can. 426.
Can. 425
§ x. Consultores dioecesani numero sint saltern sex ;
in dioecesibus ubi pauci sint sacerdotes, saltern qua
tuor ; iidcmquc omnes in civitate episcopali vel in locis
vicinioribus commorcntur.
§ 2. Antcquam munus huiusmodi suscipiant, iusiu-
randum interponant de officio ndclitcr cxscqucndo sine
ulia acceptione personarum.
Can. 426
§ z. Officium consultorum est ad triennium.
§ 2. Exacto triennio, Episcopus vel alios in eorum
locum substituat, vel eosdem ad aliud triennium con-
firmct, quod idem servetur singulis trienniis.
§ 3. Deficiente, quavis de causa, aliquo consultore
intra triennium, Episcopus alium de consilio ceterorum
consultorum substituat, isque in officio maneat usque
ad expletum idem triennium.
§ 4. Cum vero triennium excidisse contigerit va-
cante sede episcopali, consultores in officio maneant
usque ad accessum novi Episcopi, qui intra sex menses
ab inita possessione providere debet ad normam huius
canonis.
§ 5. Si, sede vacante, aliquis consultor moriatur vel
renuntiet, Vicarius Capitularis, de consensu aliorum
consultorum, alium nominet, qui tamen, ut mnnere,
sede plena, fungatur, indiget novi Episcopi confirma-
tione.
Can. 427
Coetus consultorum dioecesanorum vices Capituli
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 428 465
cathedralis, qua Episcopi senatus, supplet ; quare quae
canones ad gubernationem dioecesis, sive sede plena
sive ea impedita aut vacante, Capitulo cathedrali tri-
huunt, ea de coetu quoque consultorura dioecesanorum
intelligenda sunt
Can. 428
Durante munere, consultores ne removeantur, nisi ob
i us tain causam ac de consilio ccterorum consultorura.
APPOINTMENT OF CONSULTORS
Where a cathedral chapter cannot as yet be either es-
tablished or restored, the bishop shall appoint diocesan
consultors. These consultors shall be priests distin-
guished by piety, exemplary life, learning, and prudence.
The appointment of consultors belongs to the bishop,
who, however, must observe the special regulations of the
Apostolic See (salvis peculiaribus Apostolicae Sedis prae-
scriptis) and the rules laid down in can. 426.
As we said above, the institution of diocesan consultors,
though now formally approved by the Holy See, is the
result of peculiar circumstances. The rule was and is
that a regular cathedral chapter should surround the
episcopal office and dignity. In the U. S. this cannot as
yet be achieved, and in Great Britain, where chapters
once flourished, they have not yet, so far as we are aware,
been restored to their former condition, although the
hierarchy was reestablished Sept. 29, 1850, and canons
are constituted as corporated bodies.
What the " peculiar regulations of the Apostolic See "
are, is not expressly stated. Perhaps the reference is to
a conference held in Rome in 1883, for the introduction
of cathedral chapters according to the English fashion.
The Cardinals of the Propaganda, however, recognized
jle
^1^ Original from
UNIVERSITY OF WISCONSIN
466 ECCLESIASTICAL PERSONS
the present system of consultors.1 But the Holy See
reserves the right of changing the present boards of con-
suitors into, say, a corporation or quasi-chapter with cor-
porate rights. In that case, however, it will be natural
to expect also a change of episcopal election or nomina-
tion, from which the consultors are now practically ex-
cluded.
QUALITIES AND OBLIGATIONS
s
The qualities required in the consultors are almost
verbally restated from the enactments of the second and
third Plenary Councils of Baltimore.4 These presup-
posed, the bishop, as long as Rome does not change the
present laws, may freely name his consultors, and in
doing so is not bound by the advice or consent of the
counsellors, but need observe only what the Code de-
mands in Can. 426.
There shall be at least six diocesan consultors, but four
will suffice if the number of priests in the diocese is
small. They should all live in the episcopal city, or near
by.
Before they enter upon their office they must take
an oath to discharge their duties faithfully without fear
or favor. In large and populous dioceses the number
of consultors may be more than six, for the canon says,
" at least " six. But it can never be less than four, no
matter how small the diocese may be. Therefore the
rule of the III Council of Baltimore that there should be
at least two,6 must be corrected.
A leaning towards cathedral chapters is perceptible in
■
S Cfr. Smith, Elements, I, p. 466. council <n. 19) ruled that one-halt
4 Acta it lecrtta Cone. Bait. II., of the number ihonld b«- ehoi
p. 53; Cone. Balti. III., tit. II, c. upon the nomination of the clergy,
-:, n. 18, p. 14 f. but this cJauae is now void.
tBalt. III., I. c. Be«d«, thii
jle
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 428 467
the injunction that the consultors should live in or near
the episcopal city. The reason is not far to seek.
Forming as they do the senate of the bishop, who has
to call them to meetings, they must be near at hand.
Living at a distance would interfere with a prompt an-
swer to his call.
Before whom the consultors appointed have to take oath
is not explicitly stated in this canon. However, taking
into consideration the obligation of making the profession
of faith before the ordinary or his delegate, and at the
same time before the other consultors,8 it seems proper
that the oath of office should be taken into the hands
of the bishop or his substitute ad hoc; and if the profes-
sion of faith is made at the same time, the other con-
sultors must also be present. To take the oath by proxy
is neither permitted nor valid.7
The office of consultor lasts three years. After the
expiration of that term, the bishop may replace a con-
sultor, or leave him in office, according to his good pleas-
ure.
If a consultor, for any reason, goes out of office dur-
ing his term, the bishop, with the advice of the other
consultors, shall appoint in his place another priest, who
will remain in office until the three years have expired.
If the three years expire when the episcopal see is
vacant, the consultors of the last term remain in office
until the arrival of the new bishop, who must make pro-
vision for a new board of consultors within six months
from the date of taking possession of his see.
Should a consultor die or resign during a vacancy in
the episcopal see, the vicar-capitular or administrator,
with the consent of the other consultors, shall name an-
tCfr. can. 1406, | 1, 6*. 7 Cfr. can. 1316, 1 2.
G .] Original from
OU^IL UNIVERSITY QFWI5C0NSIN
468 ECCLESIASTICAL PERSONS
other, who must, however, have the approval of the n<
bishop (after being installed) in order to act as consult*
The text is so plain as not to require any commci
Attention may be drawn to the difference between tl
bishop and the vicar-capitular. The latter needs tl
consent of the consultors, while the former need on
ask their advice. Consultors are free to resign, thoug
they should not do so without a solid reason.
Can. 427 defines, in a general way, the functions of th
diocesan consultors, for the body (coetus) of the die
cesan consultors, as the bishop's senate, takes the plac
of the cathedral chapter, and hence whatever the canon
attribute to the cathedral chapter in relation to the gov
ernment of the diocese, either with the bishop or during
a vacancy of the see, also applies to the diocesan con-
suitor;: qs^J>ody.
Note the I ' <lm_i ft which we ren-
dered by "the consultors as*^k body." Coetus is a
wider term than societas, collegiuffp^pr corpus. These
mean a juridical person, or at least a^)mpact society,
while coetus means any assembly or gathering.8 Hence,
though the consultors form a body or unit, "they are not
a chapter in the canonical sense. Still, since c*oetus also
signifies united work and a gathering of persortS into a
body, it follows that the consultors must be called to-
gether whenever their advice or consent is required."
This conclusion is confirmed by the fact that the con-
sultors take the place of the cathedral chapter, not of the
single canons. For this reason, too, be it said in passing
consultors do not enjoy the privileges and insignia off
canons. But their functions are not therefore unimpor- N
tant. They form the senate of the bishop, who must in
• Cfr. I a. Dig., 47, 11: " Coetus sub praetext* reiigioni* "; 1, 3, Dig., 48, 6.
• Cfr. can. 105.
,1,., Original fro rn
UNIVERSITY OF WISCONSIN
>gk
CANON 428 469
certain instances ask their advice, and in other, more im-
portant affairs,10 is bound by their consent, given in a
body, as shall appear later.
Their functions during a vacancy or quasi-vacancy of
the episcopal see are dealt with in the next chapter.
The consultors in the U. S. are not yet entitled to elect
the administrator."
Canon 428 rules that no consultor should be removed
during his term of office without just reason and without
the advice of the other consultors.
This law is taken almost verbally from the Third
Council of Baltimore,13 which enumerates some legiti-
mate causes of removal, vis.: if a consultor, by reason of
age or sickness, is unable to fulfill his duty, or if he has
committed a crime that renders him unworthy of his
office, or if his reputation has suffered considerably
through his own fault. In such cases, therefore, the
bishop may remove a consultor after having asked the
advice of the other consultors. This means that no
trial, not even a summary one in the strict sense of the
term, is required ; but the bishop is not on that account
excused from the moral duty of at least making an in-
vestigation into the charges brought against a consultor.
10 Cfr., for instance, can. 153a, Rev., Vol. 57, p. 367 (Oct. 1917J.
I 1 UHenation). ia Acta *t Dtcrtto, 1886, n. ai, p.
u Cfr. can. 431, |a; hence we 16.
cannot agree with the Eccles.
jle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER VII
"■
QUASl-VACANCY AND VACANCY OF THE EPISCOPAL SEE-
THE VICAR-CAPITULAR
We use the term " quasi-vacancy " for " sedes impe-
dita." The Decretals provide for the case of an epis-
copal see becoming vacant by the captivity of its occu-
pant by "pagans or schismatics." Boniface VIII de-
creed that under such circumstances not the archbishop
or metropolitan but the chapter should govern the dio-
cese in spiritual and temporal affairs, " as if the see were
vacant," and as soon as possible refer the matter to the
Holy See.1 This decretal was cited by the chapter of
Cologne, in 1837, to justify their somewhat irregular
election of a vicar-capitular against the will of the im-
prisoned Archbishop Clement August and the Holy See.
The Cologne affair had no analogy with the captivity of
a medieval bishop by pagans or schismatics, but was an
act of sheer violence, perpetrated by the Prussian gov-
ernment without law or legal procedure, and it was
branded as it deserved by Pope Gregory XVI.* Twenty-
four years later Pius IX protested against the unlawful
elections of vicars-capitular in the Kingdom of Naples
and declared them null and void. The electors were de-
clared to have incurred ecclesiastical censure and the
elected vicar-capitulars were suspended and deprived of
their benefices (May 3rd, 1862). The respective decree
of S. C. EE. et RR. was extended to all dioceses where
a
c
lCan. 3? 6s, I, 8 de mpplcnda 13. 1838. Cfr. Bruck, Gtsck. d.
ncRligentia. Kaih. Kitchr in DeuUchlend it*
2 Brtvia Greg. XV J. Dec *6. XIX. Johrh.. :88o, Vol. II. p. 3*9 ft'.
1837; May 9, 183B; Athcutio, Sept
470
jle
I , Original fro rn
UNIVERSITY OF WISCONSIN
CANON 428
47i
such disorderly elections would take place." This action
by the Holy See was simply a defence of the freedom of
the Church and of the rights of an unlawfully impris-
oned prelate, who was still able to communicate with his
diocese, although with great difficulty.
For the Vatican Council * a sketch had been prepared
to throw light on the terms " sede vacante " and " sede
itnpedita" which had up to that time been variously in-
terpreted by canonists. The schema maintained that the
see is vacant only if the bishop is really in captivity, but
merely itnpedita in case of deportation or exile, and that
in the latter case the vicar-general or any one assigned
by the bishop should govern the diocese. This meant
that the decretal of Boniface VIII cannot be applied to
a seies itnpedita.5 We shall now see that the Code does
not entirely reject either of the two opinions which were
discussed at the Council, but tries to reconcile both.8
a Dixzarri, Coll. S. C. BE. tl RR.,
1885. p. 153 U
4 Cfc Granderath-Kirch, Ge-
ukichtt its I'ctik, Konails, 1903,
II, 162.
5 Cfr. the schema ai to the point
at issue, \b. p. 163, which reads:
■ Ab bjrpoth«ii Sedii vacantia long*
diil'crre visa est hypothesis Sedia
per Episcopi captivitatem vel rele-
gationem nut exilium impeditae.
I'rae oculis habita fuit celebcrrtraa
Bonifacii VIII. Decretalis ' Si
Kpiacopus a pagan is ' (cap. 3, De
auppl. neglig. in VI"), qua decerni-
tur in casu Episcopi capti ab in-
fidclibus vel achismaticia Capitulum
administrare ac si Sedes per mor-
tem vacarct. Prae oculis habitae
fucrunt discrepantes DD. opiniones,
aliis 1 inil idem applicantibus cuicun-.
que casui Sells simili modo im-
peditae, aliis illud ad solum prae-
dictum coBiim realringentibui;
quorum praetcrca non pauci acn-
tiunt, ipai etiam Decretal! Bonifacii
VIII. locum non esse, ubi exist it
Gcneralia Kpi&copi Vicarlus. Prae
oculis demum babitae fuerunt in-
gentes difficultates et maxima peri-
cula, quae hac in re contlgerunt
recentinrihua temporibm praesertim
in German ia, Hispania et Regno
utriusque Siciliae. Quidquid autem
de iure constitute ait exiatimanduna,
de lure saltern constituendo id visum
est omnino deccrnendum, quod in
propottito Decrcto continctur. Capl-
tulorum ausibus obstaculum ita poni-
tur; et praxi Ecclesiae conformis ea
•olutio est, ut liquet ex gestis anno
1838 occasione captivitatis Archi-
episcopi Coloniensis et ex Decreto
S. Congr. Ep. et Reg., 3 Mali, 186a,
ad nonnulla Capitula Siciliae a SS.
D. N. Pio IX. approbato." C. V.
654 b.
e Cfr. can, 385.
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
i
472 ECCLESIASTICAL PERSONS
Can. 429
§ r. Sede per Episcopi captivitatem, relegationem,
exsilium, aut inhabilitatem ita impedita, ut ne per lit-
teras quidem cum dioecesanis communicare ipse possit,
dioecesis regimen, nisi Sancta Sedes aliter providerit,
penes Episcopi Vicarium Generalem vel alium virum
ecclesiasticum ab Episcopo delegatum esto.
§ a. Potest in casu Epsicopus, gravi de causa, plu-
res delegare, qui sibi invicem in munere succedant.
§ 3. His deficientibus, vel, uti supra dictum est, im-
peditis, Capitulum ecclesiae cathedralis suum Vica-
rium constituat, qui regimen assumat cum potestate
Vicarii Capitularis.
§ 4. Qui dioecesim regendam, ut supra, suscepit,
quamprimum Sanctam Sedem moneat de sede impedita
ac de assumpto munere.
§ 5. Si Episcopus in excommunicationem, interdi-
ctum vel suspensionem incident, Metropolita, eoque
deficiente, vel, si de eodem agatur, antiquior inter Suf-
fraganeos ad Sedem Apostolicam illico recurrat, ut ipsa
provideat; quod si de dioecesi agatur vel praelatura de
quibus in can. 285, Metropolita qui fuit legitime ele-
ctus, obligatione recurrendi tenetur.
This is the canon treating of the sedes impedita or
quasi- vacancy, and it affords a splendid example of how
the old has been combined with the new law. The ancient
law 7 spoke only of captivity brought about by pagans
and schismatics, but the new law uses four terms to com-
prise the state of "sedes impedita." They are: captiv-
ity, relegation, exile, incapacity or inability. The first
three words signify substantially the same/ to wit : prac-
7 Cfr. c 3, 6°, I, 8, and abore. 8 In Webster*! Dictionary w«
I Original from I
jrVjOOglL . UNIVERSITY OF WISCONSIN \
CANON 429 473
tical absence from the episcopal see, brought about either
by force or by an act of the civil power, be it in war or
peace. Inhabilitas is the physical or mental inability of
the bishop, without any one's fault or cooperation. Such
cases are mentioned in the Decree of Gratian : in one case
*
the bishop suffered from severe headaches, in another, he
was afflicted with an ailment not further specified. In
both cases the popes, Gregory I and Nicholas I, decided
that no successor should be elected but the priests and
neighboring bishops should assist the infirm bishop*
That mental infirmity falls in the same category goes
without saying.10 Under such circumstances, therefore,
the government of the diocese is put into the hands of the
vicar-general, as the Schema Concilii Vaticani postulated,
or the bishop, passing over the vicar-general, may ap-
point another ecclesiastic, or several to whom the gov-
ernment is entrusted.
This provision bridges the difference of opinion raised
at the Vatican Council. For the new law, differing from
the Schema, permits the election of a vicar-capitular, if
the vicar-general and the appointment of episcopal le-
gates is impracticable. In such a case the chapter, as
will be seen, shall elect a vicar-capitular.11 But whoever
holds the government ad interim must report to Rome
(to the S. C. Consist., or the Secretary of State, or the
S. C. of Extraordinary Affairs).
The last paragraph treats of another case which may
cause a see to be impedita, viz., the censure of the bishop
(treated infra. Book IV). If a bishop is placed under
censure, the Metropolitan is not allowed to interfere
could not perceive an adequate dis- 11 The S. C. C, Aug. 7, 1683
tinction between relegation and ex- (Richtcr, TriJ., p. 370) decided that
ile. if communication with the captured
0 Cfr. cc. !, 4, C. 7, q. 1. bishop was possible, his jurisdiction
10 Reiffenituel I, io, n. 35 ff. did not devolve on the chapter.
ogle
Original fro m
UNIVERSITY OF WISCONSIN
474 ECCLESIASTICAL PERSONS
either with him or his vicar-general, nor is he called upon
to appoint a vicar-capitular, because the old law ia for-
bade such interference, and the new law does not abolish
the old. But the Metropolitan is obliged in virtue of his
office to inform the Holy See. If the Metropolitan is
censured, the senior suffragan must make the report.
If the prelate who is censured is immediately subject
to the Holy See, the Metropolitan who has been chosen
by the respective Prelate " scmel pro semper/1 is obliged
to have immediate recourse to Rome. In the meantime
the vicar-general cannot continue to exercise his juris-
diction, because his power is suspended during the sus-
pension of the bishop (can. 371). Hence, in such a case,
the regular business of the episcopal curia will cease
until Rome makes provision, which now-a-days, by rea-
son of swift communication, can. as a rule, be done
el
promptly. If any jurisdictional act should meanwhile
be performed, which would give rise to a general error,
the validity of such an act could not be doubted.
vacancy proper
Can. 430
§ 1. Sedes episcopalis vacat Episcopi morte, renun-
tiatione a Romano Pontifice acceptata, translatione ac
privatione Episcopo intimata.
§ 2. N ihilominus, excepta collatione beneBciorum aut
officiorum ecclcsiasticorum, omnia vim habent quae
gesta sunt a Vicario Generali, usque dum hie certain
de obitu Episcopi notitiam acceperit, vel ab Episcopo
it Cfr. c I, 6* I, 8, de negle- In the danger of detriment accru-
gentia supplenda. The reason why iag to the bishop and his subjects.
the> Metropolitan in not allowed to Reiffenttuel, I, 10, 36 alto mentions
draw the jurisdiction to himself lies the expedient of recourse.
►ogle
£ * -» -. -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 430 475
aut Vicario Generali, usque dum ccrta dc memoratis
actibus pontificiis notitia ad cosdem pervenerit.
§ 3. A certa txanslationis notitia Episcopus intra
quatuor menses debet dioecesim ad quam petere eius-
demque canonicam possessionem assumere ad normara
can. 333, 334 et a die captae possessionis dioecesis a qua
plene vacat; interim vero in eadem Episcopus:
i.° Vicar ii Capitularis potestatem obtinet eisdem-
que obligationibus tenetur, cessante qualibet Vicarii
General is pot estate;
2.0 Honorifica Episcoporum residentialium privi-
legia conservat;
3." Integros percipit fructus mensae episcopalis ad
normam can. 194, § a.
The episcopal see becomes vacant by the death of the
bishop, by his resignation as soon as accepted by the
Roman Pontiff, or by his transfer and privation.
Nevertheless, with the exception of conferring ecclesi-
astical benefices or offices, all the official acts of the vicar-
general are valid until he has received sure notice of the
death of his bishop. Valid are also the acts of the bishop
himself or of his vicar-general so long as they have not
been duly notified of the vacancy.
Four months from the date of the notice of his trans-
fer, the bishop must repair to the diocese to which he
is transferred and take possession of it. From the date
of his taking possession of the new diocese, his former
see is fully vacant. Meanwhile, from the date of notice
to that of his taking possession, the bishop
(1) enjoys the whole power of a vicar-capitular in the
old diocese, while the power of the vicar-general ceases ;
(2) retains all the honorary privileges of resident bish-
ops, and
, ,1,., Original from
UNIVERSITY OF WISCONSIN
>gle
476 ECCLESIASTICAL PERSONS
v
(3) is entitled to all the episcopal revenues.
The four modes by which an episcopal see may become
vacant are evidently taken laxative, as none other is im-
aginable.
In order to safeguard the validity of official acts, the
second paragraph provides that the notice must be certa.
First as to the case of death. If the bishop dies within
the diocese, there will hardly be any difficulty. The vicar-
general may receive the death notice a day or two after
the bishop has expired.18 But this matters little. More
important is the manner in which the notice is given.
This must be certain or sure. Certainty, we know, may
be either physical or moral, according as it is derived
from the bodily senses or based on reasons which leave
no room for reasonable doubt. Besides, there is juridical
certainty, obtained by means prescribed in law ; for in-
stance, peremptory admonition, official summons, or a
document. The last-named kind of certainty is not re-
quired for the death notice of a bishop, because the text
demands only certain notice, and " one who is already
certain need not be further informed." " Moreover, the
case does not fall under any heading of law requiring
juridical certainty. Hence if the vicar-general receives
notice through trustworthy witnesses, or by letter from
one who is in a position to know and willing to tell the
truth, he may be said to have certainty. But he is not
obliged to believe the newspapers, as they sometimes re-
port people dead when they are still among the living.
Of course, the surest way of notifying the vicar-general
is through the episcopal chancery (with the diocesan, not
episcopal, seal).
It Mors (tfae physical separation 14 Regular juris 31 in 68: " Eum
of soul and body) omnia solxrit, qui certus est, certiorari ulttrius
but there is also a civil death and non debet." Cfr. ReuTenstuel, Cap.
canonical death (excommunication). II in reg. cit.
g
-
-
ft
by Google
% _j , Original fro m
UNIVERSITY OF WISCONSIN
CANON 430 477
After he has received certain notice of the death of
the bishop the vicar-general's office ceases ; in fact, it has
ceased de facto and de iure from the moment of the bish-
op's death with regard to the conferring of ecclesiastical
benefices and offices. What is the reason for this differ-
ence between the conferring of benefices and other offi-
cial acts? For the former, the vicar-general needs a
special mandate, which the bishop cannot impart after
death. It may be asked whether a vicar-general can put
into effect after the bishop's death a mandate received
before that event. The answer is no, because a wa«-
datutn ab homine" expires with the death of the wan-
dans, even if the latter should have commenced the
settlement of the affair in question {re nan amplius in-
tcgra).1*
The terms transfer and privation have been explained
above (can. 183). Transfers1* of bishops were not un-
usual in the Middle Ages, even against the will of the
prelates. The pope clearly has the right to transfer bish-
ops from one see to another. As the appointment is ad-
duced by human factors which depend finally on the
Supreme Pastor, so a change must be considered possible
and dependent on the same cause. The spiritual mar-
riage (connubium spirituale) which is supposedly con-
tracted between the bishop and his diocese, cannot be
urged against this right. Mysticism in the law is dan-
gerous and to stretch that mystic symbol would lead to
absurdities. Moreover, the assumption that there is
only a matrimonium ratum would suffice to vindicate the
right of the Pope to solve it Now-a-days, however,
transfers, properly so-called, are generally made only
with the consent of the one transferred and for reasons
10 Cfr. Rdffcutud, I, a, n, 46. i« Cfr. title 7 »° DecrcUlt: de
tnniUtione tpiscopi
*Ic
, ,.] ^ " riginal from
UNIVERSITY OF WISCONSIN
■
478 ECCLESIASTICAL PERSONS
of evident utility or necessity affecting either the person
of the bishop or the diocese.17
The bishop who resigns must be duly informed of the
acceptance of his resignation by the S. Cong. Consistori-
alis. The bishop who is transferred must be certain that
the translation was made in public consistory, and the
bishop deprived of his bishopric must be certain that that
penalty was inflicted. Here again, therefore, the question
of certainty arises. But here the certainty required must
be limited to juridical knowledge; for the resignation
must be accepted by the Pope, on whose will the accept-
ance depends. Transfer, too, depends on the same fac-
tor; and privation is a judiciary act which must be as-
certained judicially. Hence in all these cases an official
document, or at least official notice, is required. If the
notice of acceptance, resignation or transfer is trans-
mitted by telegraph or telephone, it must be done by
persons acting in an official capacity, in other words,
by the Secretariate of State.18 Hence we believe our
term (§3) "authentic notice" is a correct translation.
The rest of the canon will be explained in connection
with the office of vicar-general.
Can. 431
§ 1. Sedc vacante, nisi adfuerit Administrator Apo-
stolicus vel aliter a Sancta Sede provisum fuerit, ad
Capitulum ecclesiae cathedralis regimen dioecesis de-
volvitur.
§2. Sicubi ex speciali Sanctae Sedis dispositione
Archiepiscopus aliusve Episcopus Administratorem
dioecesis vacantis designer, hie omncs et solas facul-
1T Cfr. Aichner, S 06, a; Smith. virtue of it* diplomatic character, is
Elements, I, nn. 391 ff. guaranteed free communication.
IS The Secretariate of State, in
.'le
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 431 479
tatcs habet quae Vicario Capitulari competunt, eisdera
obligationibus ac poenis obnoxius.
The first paragraph of this canon, with the exception
of the clause concerning the administrator Apostolic,10 is
a repetition of the old law,20 which entrusted the chapter
with the diocesan government.
The second paragraph applies to the U. S. Our sec-
ond Plenary Council E1 provided " that if a vacancy oc-
curs by the death of the bishop, an administrator ap-
pointed by the bishop before his death shall govern the
diocese." Nothing to this effect is found in the Code,
and hence it would not be safe to follow this conciliar
enactment in future. But another regulation still holds
good, namely, that the archbishop (metropolitan) or an-
other, generally the senior suffragan, should designate
an administrator for the vacant see. Our contention
that bishops are no longer entitled to appoint their own
administrators is based on the laws of interpretation.
The legislator knew of the existence of a special pro-
vision for our country — otherwise mention thereof
would not be made — and as he omits a part of the for-
mer disposition, he plainly wishes to see the same cor-
rected. The term " aliusve episcopus" cannot be ad-
vanced against this interpretation, for the very position
of the phrase clearly shows that this H other bishop " is
no one else but the " senior suffragan " mentioned in n.
97 of the Second Baltimore Council. But even aside from
this interpretation, which is merely declaratory, not ex-
tensive nor corrective, the right of the bishop to appoint
19 Cfr. cc. 312 ff. 21 Cfr. Acta it Dtcrrta II. Cone.
SO Cfr. c. 3, 6\ I, 8, de nipplenda Plcn. Bolt., n. 96 *-', P- 67 f- Smith,
ncglig.; Trtrf., Sea*, a*, c. 16 d« EUmtnts I. n. 638, Brief of Phil
ref. IX, Jan. 13, 1854.
'le
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
4B0 ECCLESIASTICAL PERSONS
an administrator was prejudicial to the clergy in general
and the diocesan consultors in particular, a setting aside
of the common law of the Church in an important disci-
plinary matter. Hence the Fathers of the Second Balti-
more Council were naturally more anxious about the
faculties than about the administrator, who enters upon
the scene, as it were, only after the " vir ecclesiasticus "
has been endowed with the faculties. Now these facul-
ties M are granted in our Code to the administrator only in
so far as the vicar-capitular possesses them, and no far-
ther; and the administrator, like the vicar-capitular, is
bound by the same obligations and subject to the same
penalties.
THE VICAR-CAPITULAR
Can. 432
§ 1. Capitulum ecclesiae cathedralis, sede vacante,
intra octo dies ab accepta notitia vacationis, debet Vi-
carium Capitularem qui loco sui dioecesim regat et, si
fructuum percipiendorum ei munus incumbat, oecono-
mum unum vel plures fideles ac diligentes constituere.
§2. Si Capitulum intra praescriptum tempus Vi-
carium aut oeconomum, quavis de causa, nullum depu-
taverit, deputatio ad Metropolitam devolvitur; si autem
ecclesia ipsa metropolitana fuerit vacans vel metropo-
litana simul et suffraganea, ad antiquiorem ex Episco-
pis suffragancis.
§3. Etiam vacante dioecesi aut abbatia vel prae-
latura de quibus in can. 285. si Capitulum intra octi-
duum Vicarium vel oeconomum non iiomina verit. hunc
Metropolita qui fuit legitime electus ad normam citati
canonis, constituat, nisi in abbatia vel praelatura nvl-
litis religiosa aliter ad normam constitutionum provi-
deatur.
23 Cfr. can. 60 and Vol. I, p. mi.
p
ioogle
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 432
481
—
a
N
§4. Capitulum quantocius de morte Episcopi et
deinde electus in Vicarium Capitularem dc sua elc-
ctione Sedem Apostolicam certiorexn faciant
In case of a vacancy in the episcopal see, the ca-
thedral chapter, within eight days from the date of no-
tice received, must appoint a Vicar-capitular, who shall
govern the diocese in the place of said chapter. If the
chapter also administers the revenues, it must appoint one
or more trustworthy and industrious persons as admin-
istrators thereof (occonomi).
Should the chapter, for any reason, neglect to desig-
nate a vicar-capitular or oeconomus within the prescribed
time, the right of making this appointment devolves on
the metropolitan; and if the vacant see is a metropolitan
see, or if the metropolitan see is vacant simultaneously
with a suffragan see, the right of appointment passes to
the senior suffragan.
If a diocese immediately subject to the Roman Pontiff,
or an abbatia or praelatura nullius (can. 285) becomes
vacant, and the chapter fails to appoint a vicar-capitular
or oeconomus within the stated time, the metropolitan
" semel pro semper" chosen designates the said officials,
unless (in the case of an abbacy or prclature of reli-
gious) the respective constitutions provide otherwise.
The chapter should as soon as possible inform the
Apostolic See of the death of the bishop, and the vicar-
capitular should notify the same Apostolic See of a new
election as soon as made.
The first paragraph of this canon is taken from the
Council of Trent, which commands that a vicar-capitular
and oeconomi2* ("qui reram ecclesiasticarum et pro-
ventuum curam gerant") be chosen, " ubi fructuum per*
tsTrid., Sew. u. c. 16 de ref.
Go >gle
Original from
UNIVERSITY OF WISCONSIN
482 ECCLESIASTICAL PERSONS
cipietidorum ei munus incumbit." This latter clause is
verbally inserted in our Code, while the former is omit-
ted, but is connected with the office of administrator.
" In the United States," says Smith," " no such pro-
curators or administrators of the temporalities of vacant
dioceses are appointed. Vacant sees are usually gov-
erned, both in temporalibus and spiritualibus, by one and
the same administrator." This opinion may even now
be held and followed, but only conditionally, vis., as long
as the diocesan consultors are not concerned with the
"munus percipiendorum fructuum"; because the Tri-
dentine as well as the new law speak conditionally ("si"
or "ubi"). Hence as long as the bishop with the ad-
ministrators who must henceforth be chosen,20 takes care
of the temporalities, and not the diocesan consultors as
such, the election of a procurator is not required in the
U.S.
"Intra octo dies ab accepta notitia vacationis" implies
any sufficiently trustworthy notice of the vacancy (either
by death or transfer),26 because the notice is not further
described. For eight days, therefore, the cathedral chap-
ter, or the diocesan consultors, as a body, are entrusted
with the government of the diocese, as it was before the
Council of Trent.27
The second paragraph treats of the devolution of the
right of appointment to the metropolitan or the senior
suffragan. Hence, if the cathedral chapter, for any rea-
son (e. g., negligence or disagreement), fails to comply
with the law laid down in our canon, the metropolitan
may designate a vicar-capitular, and he is not bound to
^Elements, I, n. 635. P- 393- «' Cfr. c. 14. X, I, 33; c. 2, X,
2» Cfr. cc. 1520 ff. Ill, 9: c 3. 6*. I. 8: Benedict XIV,
i« Barbota, De Canonicit tt Dt Syn. Diotc, II, 9, -'. Bouix, />#
Dignitatibus, c. ult, tin. 20 T .. c<\. Capihtlis, p. 539 f.
Lugd., 1668, p. 346.
* t Irvuilp Original from
'°°cVC UNIVERSITY OF WISCONSIN
CANON 433 483
notify the chapter of his intention, but merely of the per-
son elected. The new law deviates from the old practice
with regard to the senior suffragan. Formerly, if a suf-
ragan see became vacant whilst the metropolitan see was
also vacant, the metropolitan chapter was entitled to name
a vicar-capitular for the vacant suffragan see.*8 Now
the senior bishop designates the vicar-capitular in the
cases mentioned.
But who is the senior suffragan? The text says " an-
tiquior," which implies that this attribute has reference
to the see rather than to the person of its incumbent, and
therefore the senior bishop is the one whose diocese was
erected before the others: "prior in tempore, potior in
iure" w
The right of the metropolitan extends also to such
vacant sees as are immediately subject to the Roman
Pontiff and to abbatiae nullius. Exception, however,
is made concerning the latter in case the Constitutions
of the religious should provide otherwise. These gen-
erally determine that an administrator be chosen and
admit no interference from outside. The clause safe-
guards the exemption as well as the authority of the Holy
See to which such Constitutions must be submitted for
approval.
Can. 433
§ r. Unus deputetur Vicarius Capitularis, reprobata
contraria consuetudine ; secus electio irrita est.
§ 2. Vicarii Capitularis et oeconomi constitutio fieri
debet per actum capitularem ad normam can. 160-182,
salvis peculiaribus huius Capitis normis, et ad eius
M Cf. Rlcfatcr, Trid., Scss. 24, c B» Cfr. tit. 33, Decrct dc maiori-
Xff, n. 34, p. 375 1 Benedict XIV, tate et obediential reRuIa 54 iuril
Di Syit., II, 9, 2; Bouix, Dt Copi- in 6°; Santi-Leitner, Praelectionit
tulis, p. 583. *""** CmonM, Vol. I, p. 379.
jle
( * -» ^ iL» Original from
UNIVERSITY OF WISCONSIN
484 ECCLESIASTICAL PERSONS
validitatetn requiritur numerus suffragiorum absolute
maior demptis suffrages nullis.
§ 3. Idem potest in Vicarium Capitularem et oeco-
nomum deputari.
§ I of this canon deals a decisive blow against the opin-
ion of those canonists80 who (based on some decisions
of S. C. C.) held that more than one vicar-capitular
could be elected in dioceses where an immemorial custom
existed to that effect. The Code reprobates all such cus-
toms and declares all elections performed contrary to the
new law to be null and void.
§ 2 treats of the manner of voting, which must be the
same as that prescribed for elections proper. An absolute
majority is required for election. Hence, if the number
of electors is six, four votes must be cast for the same
person. Any vote which is extorted, or which is not
secret, certain, absolute, and determined " is invalid, and
must be subtracted from the total. Thus, if one vote out
of six were null and void, there would remain five valid
votes, and therefore the candidate would have to obtain
three, in order to be elected.
X
qualities of the vicar-capitular
Can. 434
§ z. Ad Vicarii Capitularis munus deputari valide
nequit clericus qui ad sacrum presbyteratus ordinem
nondum fuerit promotus, aut tricesimurn aetatis an-
num non expleverit, aut ad eandem vacantem sedem
fuerit electus, nominatus vel praesentatus.
§ 2. Vicarius Capitularis sit praeterea in theologia
so C(. Bouix, Dc Copitulis, p. 545' 8> Cfr. Can. 169; Boulx, Dt Cap*
Wernr, Jus Decrel., XI, i, p. 960. lulu, p. 207.
.'Ie
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 434
485
a
-■
aut iure canonico doctor vel licentiatus aut saltern
earundem disciplinarum vcre pcritus, in eoque morum
integritas, pietas, sana doctrina cum prudentiae laude
conspirent
§ 3. Si praescriptae § 1 conditiones posthabitae fue-
rint, Metropolita, aut si ecclesia metropolitana vacans
fuerit, vcl dc ipso Capitulo metropolitano agatur, anti-
quior provinciae Episcopus, agnita rei veritate, Vica-
rium pro ea vice deputet ; actus autem illius qui a Ca-
pitulo electus fuerat, ipso iure sunt nulli.
No cleric can be validly elected vicar-capitular unless
he be a priest, thirty years of age ; no one who has been
elected, nominated or presented to the vacant see may
be chosen for the office of vicar-capitular.
Furthermore, the vicar-capitular must be a doctor of
divinity or of canon law, or a licentiate thereof, or at
least well versed in these sciences ; besides, he must be dis-
tinguished by probity of life, piety, sound doctrine, and
prudence.
If in any case the conditions prescribed in § 1 have
been set aside, the metropolitan, or if the metropolitan
see be vacant or it be question of electing a vicar-capitular
for the metropolitan see, the senior bishop of the diocese
shall designate the vicar-capitular, after having been
duly informed of the election ; all the official acts of the
so-called chosen vicar are ipso iure null and void.
The Code here corrects the Tridentine law in more
than one point. The Council82 was satisfied with the
clerical state In general and with the age of twenty-five;
now the priesthood and the age of thirty years (com-
pleted) are required. Besides, the canon adds that no
one can be elected vicar-capitular who is elected, nom-
•1 Cfr. Trid., Sew. a». c 4; Sen.
>gle
*3t c »3. c u; Sew. --4. c. i», d«
rtf.
Original fro ni
UNIVERSITY OF WISCONSIN
486 ECCLESIASTICAL PERSONS
mated, or presented to the same vacant see, as decided by
Pius IX, "Romanus Pontifex," Aug. 28, 1873.
These three conditions affect the validity of the elcc-
tion and, if neglected, according to § 3, give the right of
appointing a vicar-capitular to the metropolitan or senior
suffragan. These latter cannot, however, proceed to the
appointment unless they have been informed that the
election was illegal ; in other words, they must have veri-
fied the fact that the chosen candidate suffers from one
of the three impediments stated in § 1 of this canon.
As in the case of the eight days having elapsed, the
devolution takes place only for this one time {pro ea
vice), and the metropolitan or senior suffragan cannot
claim the right of interfering with the next election of a
vicar-capitular to the same see. Hence, if those who are
authorized to supply the illegal election should themselves
choose an unfit candidate, the right of election would re-
vert to the chapter. For the metropolitan and senior
suffragan, too, are bound by the law. The reason for
this assertion is that the law which urges all is nullifying
and the law depriving the chapter of the right of election
is penal.88
Concerning the other qualities required, the Code is
not as strict as the former practice. The academic de-
grees are no longer strictly demanded for a valid elec-
tion,84 nor is that other requisite which the canonists set
forth in agreement with the practice of the Roman Curia,
to wit, that, ceteris paribus, a member of the chapter
should be preferred to an outsider." Therefore, should
81 Barbosa, De Officio *t Pote- university (of course. Catholic), and
ttalt Epxscopi, P. Ill, Allcg. 54. n. the laurta iuris ii aaid to be pre-
164. ed. Lugd.. 1665. t II. p. 133. ferred to that in theology. But thia
34 Cfr. Richter, Trid., p. 373, n. must now be corrected.
4 f.; Boulx, De Capitutis, p. 546 <?•■ so Richter, /. c; Bouix, t. c, p.
where the academic doctorate is de- 57a f.; Santi-Leitner, I, p. 248 (tit.
scribed as one conferred in a public a8, n. 51).
>Ie
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
—
a
N
CANON 43S 487
the chapter (or the consultors) disregard these requisites,
the metropolitan or senior suffragan could not claim the
right of devolution.
rights of the vicar-capitular
Can. 435
§ 1. Sicut ad Capitulum ante deputationem Vicar ii
Capitularis, ita deinde ad Vicarium Capitularem tran-
sit ordinaria Episcopi iurisdictio in spiritualibus et
temporalibus, exceptis iis quae in iure expresse sunt
eidem prohibita.
§ 2. Quare Capitulum et postea Vicarius Capitula-
ris omnia possunt quae enumerata sunt can. 368, § a;
item facilitate pollent exercitium pontificalium in dioc-
cesi cuilibet Episcopo permittendi, imo, si Vicarius
Capitularis sit Episcopus, potest ipse eadem exercere,
excluso tarn en usu throni cum baldachino.
§ 3. Vicario Capitulari et Capitulo non licet agere
quidpiam quod vel dioecesi vel episcopalibus iuribus
praciudicium aliquod afferre possit; nominatim vero
Vicarius Capitularis aliique sive de Capitulo sive cx-
tranei, clerici aut laici, per se vel per alium prohiben-
tin- Curiae episcopalis documenta quaelibet subtrahere
vel dcstruere vel cclare vel immutare.
Can. 436
Sede vacante nihil innovetur.
Can. 437
In Vicario constituendo nullam sibi iurisdictionis
partem Capitulum retinere potest, nee gcrendo muneri
tempus pracfinirc aliasvc restrictioncs praestitucrc.
oogle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
488 ECCLESIASTICAL PERSONS
The ordinary jurisdiction of the bishop, in spiritual as
well as temporal affairs, passes first to the chapter and
then to the vicar-capitular, except in regard to matters
which the law has expressly excepted.
Therefore, first the chapter, and then the vicar-
capitular, enjoy all the powers enumerated in can. 368,
§ 2, and besides, have the faculties to grant the exercise
of pontificals to any bishop; nay, if the vicar-capitular is
endowed with the episcopal character himself, he may
perform pontifical ceremonies, though without using the
throne and canopy.
The vicar-capitular and the chapter are not allowed to
do anything that might prove prejudicial to the diocese or
to episcopal rights ; especially are the vicar-capitular and
others, either capitulars or outsiders, clergymen or lay-
men, forbidden, either themselves or through others, to
withdraw or destroy or hide or change documents of the
episcopal Curia.
Nothing is to be changed during the vacancy of a see.
The chapter, in appointing a vicar, cannot reserve to
itself any part of the jurisdiction, or limit the term of
his office, or make any other restrictions.
These three canons belong together and supplement
one another. Benedict XIV said that the powers of
the chapter and the vicar-capitular about equal those of
the vicar-general ; ao and therefore, whatever the bishop
can do as Ordinary of the diocese (unless he has ex-
pressly reserved some matters) can also be done by the
vicar-capitular. § 2, therefore, refers to can. 368, where
the powers of the vicar-general are described.
Ordinary jurisdiction is vested in the chapter from the
moment when notice of the vacancy is received, and in
a* Cfr. Di Syn. Dio*c., II, 9, 3.
■ I
jle
j , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 437
489
the vicar-capitular as soon as he is lawfully appointed
and has made his profession of faith."
However, whilst the full ordinary power passes first
to the chapter, and then to the vicar-capitular, our Code,
following the old law, forbids both to enact or do any-
thing which might be detrimental to the episcopal rights.
Can. 436: " sede vacante nihil innovetur," is a repetition
of the Decretals (III, §9). Under this heading various
acts enumerated by canonists, who gathered them from-
scattered sources, are prohibited, though there are some
modifications under the Code. Thus the vicar-capitular
(a) cannot convoke a diocesan synod** This is now ab-
solutely forbidden, because the Code makes no exception.
This measure seems quite reasonable, as synods must be
held every ten years only.80 (b) He cannot confer bene-
fices promiscuously or appoint to office, except in so far
as the law permits him to exercise that right, which is de-
termined in can. 455, §2. (c) He cannot grant indul-
gences, and must abstain from using the faculty of grant-
ing such, should he possess it.40 (d) He cannot alienate
anything of value, as this would be detrimental to the
mensa episcopalis or the diocese.*1 With regard to
this point we cannot discover any change in the new
Code. Hence the old prescriptions remain in full force.
No doubt, however, the vicar-capitular may conclude
a favorable financial deal, for instance, getting money
at a lower rate of interest or converting bonds into
more profitable ones. For this is not prejudicial to the
diocese, and opportunities, especially on the money raar-
S7 lb., n. 4; cf. can. 438.
88 Cfr. can. 357. I *■
89 Benedict XIV, /. c, n. 5 *•.
•ays that the vicar-capitular can con*
Yoke 1 synod if a year has elapsed
since the last one.
40 Cfr. Trid., Sess. 7. c. 10 de
ref.; Benedict XIV, /. c, H, 9. 7S
Wernx, Jits Dccret., II, 2, p. 969.
41 Cfr. c. 6a, C u, q. a; e. 1. X,
III, 9; Bizzarri, Coll., p. 40 f.
>gle
Original from
UNIVERSIT.Y OF WISCONSI
49Q ECCLESIASTICAL PERSONS
ket, easily slip away. Of course, if required, formalities
prescribed by Canon Law must be observed, (e) The
vicar-capitular cannot grant litterae dimissoriales indis-
criminately, but only in the cases established by can. 958,
§ I, 30. In cases which permit him to issue such docu-
ments he may also ordain those provided with litterae,
if he himself is endowed with the episcopal character
(can. 959). This is a logical consequence of can. 435,
§2, which grants the vicar-capitular, if he is a bishop,
the right of exercising pontifical functions. Only the use
of the throne with the baldachin is forbidden ; wherefore
a temporary throne, or rather faldstool (faldistorium),
must be prepared. We conclude that the vicar-capitular,
if a bishop, may also administer the sacrament of con-
firmation.42
As to letters of incardination and excardination see
can. 113.
The following canon (437) rejects the opinion prevail-
ing among some canonists,43 and in the S. C. C, but
never in S. C. EE. et RR., that the chapter can reserve
to itself part of the episcopal jurisdiction. Neither is the
Lf
chapter entitled to limit the term of office of the vicar-
capitular, or to restrict his power, for instance, to certain
acts. If the vicar-capitular should submit to such re-
strictions at his election, the election would be valid,
but the vicar-capitular would be obliged neither in foro
externa nor in foro interno to abide by these restric-
tions.44
42 Cfr. Santi-Leitner, /. C, I, 28, cede episcopal! in capitulum venerat,
n. 62 (Vol. I, p. 255). ad Vicariura ab eo rite constitutum.
4a Cfr. Hcncdict XIV, De Syn., transirc, ncc ali&m huiua juriadic-
, IV, 8, 10; Bouix, Dt Capitulis, p. tionis partem posse capitulum re-
556 if. servare, neque posse ad ccrtum ct
«4 Plus IX, " Roman** Pontifex," deflnitum terapus vicarioi conaU-
Aufr. 28, 1873: " Totam ordinariam tuere."
epiacopi jurisdktionem, quae vacua
:ibyC jle
J , Original from
UNIVERSITY OF WISCONSIN
CANON 438 49*
The time when the ordinary jurisdiction passes to the
vicar-capitular is stated in the next canon.
Can. 438
Vicarius Capitularis, edita fidei professione de qua
in can. 1406-1408, statim iurisdictionem obtinet, quin
necessaria sit ullius confirmation
The vicar-capitular, after having pronounced the pro-
fession of faith (can. 1406 ff.), immediately obtains ju-
risdiction and needs no confirmation from any one. This
settles a point long in dispute among canonists.48 The
profession of faith is to be made before the chapter.
Whether its omission by mere accident would invalidate
the jurisdiction and thus render the official acts of the
vicar-capitular null and void, is not stated in our canon
or in the one treating of the professio fidei, or in the
penal Code. Hence, salvo meliori iudicio, we should say
that the clause "edita fidei professione'* (ablative abso-
lute) here stands for the perfect tense, meaning " after
having made the profession," but not conditionally, if- It
follows that the mere wording of the text permits us to
assume that the professio fidei does not affect the juris-
diction itself, but only the point of time in a non-condi-
tional sense. However, in view of the importance at-
tached to the profession and its being placed before
" iurisdictionem obtinet" we may conclude that the ratio
k§is lays stress on the profession, and this would seem
to imply that it is a conditio sine qua non.
Can. 439
a
Quae in can. 370 dc Vicario Generali praescripta
4*S« Benedict XIV, Dt Syn., II, 9, 4; Barboa* thought otherwU*.
ioi >gle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
492 ECCLESIASTICAL PERSONS
sunt, eadem de Vicario quoque Capitulari dicta intcl-
ligantur.
Concerning precedence and honorary rights, whatever
has been enacted about the vicar-gcncral must be applied
to the vicar-capitular.
■
3
Can. 440
Vicarius Capitularis obligationc tenetur residendi
in dioeccsi ct applicandac Missae pro populo ad aor-
mam can. 338, 339.
Can. 441
Nisi aliter fuerit legitime pro visum:
i.° Vicarius Capitularis et oeconomus ius habent
ad congruam retributionem, in Concilio provinciali de-
signatam vel recepta consuetudine concedi solitam, de-
sumendam ex reditibus mensae cpiscopalis aut ex aliis
emoluments ;
2.0 Cetera emolumenta, quo tempore sedes episco-
palis vacaverit, futuro Episcopo pro dioecesi neces-
sitatibus reserventur, si ad Episcopum, ecclesia non
vacante, pertinuissent.
The vicar-capitular is obliged to residence and to the
application of the Mass according to can. 338 f .
Unless otherwise provided:
(1) the vicar-capitular and the procurator are entitled
to a decent support, determined by the provincial council
or by legitimate custom, and taken from the episcopal
revenues or other sources.
(2) All other revenues accruing during the vacancy of
the see, if they are of a kind that would belong to the
bishop in case the see were not vacant, must be reserved
for the future bishop.
jfe
v ,1,., Original from
UNIVERSITY OF WISCONSIN
-'
|M
CANON 442 493
In the U. S. the bishops receive their salary chiefly by
means of the cathedraticum," and hence the solution of
the pecuniary question here is simple. In the old coun-
tries this matter is more intricate. It is to be settled,
from time to time, in provincial councils. The vicar-
capitular or administrator, therefore, is entitled to the
cathedraticum pro rata temporis as well as to the income
received from dispensations. For the rest, a plenary or
provincial council shall further determine the ways and
means for the support of the vicar-capitular.
Can. 442
Oeconomus rerum ecclesiasticarum et proventuum
curam et administrationem gerat, sub auctoritate ta-
men Vicarii Capitularis.
The procurator shall administer the temporal affairs
and revenues of the diocese under the supervision of the
vicar-capitular.
Can. 443
§ 1. Vicarii Capitularis et oeconomi remotio San-
ctae Sedi reservatur; renuntiatio authentica forma est
exhibenda Capitulo, a quo tamen earn acceptari ne-
cesse non est, ut valeat ; novi autem Vicarii vel oeco-
nomi constitutio post prions renuntiationem, obitum
vel remotioncm ad ipsum Capitulum per tinet, facienda
ad normam can. 43a.
§ a. Cessat practerea coram munus per initam a
novo Episcopo possessionem ad normam can. 334, § 3.
The removal of the vicar-capitular and the procurator
is reserved to the Holy See, the resignation of either must
48 Cf. Cone. Bait. II, n. 100 (Actott Dtcrtta, p. 68 f.).
>Ie
I t Original from
UNIVERSITY OF WISCONSIN
494 ECCLESIASTICAL PERSONS
be made in authentic form and presented to the chapter,
whose acceptance, however, is not required for the valid-
ity of the act. After the resignation, death or removal of
the vicar-capitular or procurator, a new one may be ap-
pointed by the same chapter, according to the rules laid
down in can. 432.
The office of vicar-capitular or procurator ceases im-
mediately after the new bishop has taken possession of his
diocese, according to can. 334, § 3.
The removal of a vicar-capitular is logically reserved
to the Holy See,4T since the chapter has no jurisdiction
over the vicar-capitular, and the whole ordinary power
of the bishop passes to him at election. Neither is the
metropolitan, if he has appointed a vicar-capitular, en-
titled to remove him, for that right is only an extraordi-
nary means of appointment, nor does the appointment
cause or create the jurisdiction, but only occasions it.
Therefore the regula juris in the Decretals of Gregory,
" Omnis res, per quascunque causes nascitur, per easdem
dissolvitur," cannot be applied here. From the same
principle, viz.: that the whole ordinary jurisdiction is
transferred to the vicar-capitular, and nothing remains
with the chapter, it follows that the chapter has no right
to indict the vicar, or to judge him, or to demand an
account from him.48
The resignation, says the canon, must be drawn up in
authentic form, as described in can. 186. But the ac-
ceptance of the chapter is not required for its validity,
which is again quite logical, because the chapter has no
jurisdiction to accept the resignation of the vicar. But
it has the power, as a means to an end, to appoint a new
vicar-capitular, if the first appointee resigns, dies, or is
4T Cf. Piiia IX. " Romanus Pon* 48 Cf. Bouir, D* Capitulu, p. 609.
tifex," Aug. 28, 1873.
>Ie
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 444 495
removed. The election must again proceed canonically,
according to time and mode, and if the chapter fails to
perform its duty within eight days from the date of
notice of the resignation, death or removal of the former
vicar-capitular, the metropolitan or senior suffragan can
again claim the right of appointment.
Can. 444
§ 1. Novus Episcopus a Capitulo, a Vicario Capi-
tulari, ab oeconomo et ab aliis officialibus, qui, sede
vacante, fuerunt constituti, rationem exigere debet
officiorum, iurisdictionis, administrationis munerisve
ipsorum cuiuslibet, et in eos animadvertere, qui in suo
officio seu administratione deliquerint, etiamsi, redditis
rationibus, a Capitulo vel a Capituli deputatis abso-
lutionern aut liberationem impetraverint.
§ 2. Iidem rationem reddant novo Episcopo scrip-
turarum ad Ecclesiam pertinentium, si quae ad ipsos
pervenerint.
The office of vicar-capitular having ceased ipso iure
upon the new bishop's taking canonical possession of the
diocese, the latter must demand an account of the chapter,
the vicar-capitular, the procurator, and other officials ap-
pointed during the vacancy, concerning their office, juris-
diction, administration, and charges; and he must pro-
ceed against such as hav^ been delinquent in the discharge
of their duties and offices, even though they had given
an account to the chapter and been absolved or acquitted
by the same.
Besides, the aforesaid officials shall also render account
to the new bishop of whatever church documents may
have come into their hands.
>Ie
/•^ ^ v ,1,., Original from
UNIVERSITY OF WISCONSIN
496 ECCLESIASTICAL PERSONS
This canon is almost verbally reproduced from the
decrees of Trent (Sess. 24, c. 16, de ref.). But instead
of the term " punire," found there, the canon uses the
milder expression, " animadvertere /' which means to
heed or take notice, although in law it also signifies to
proceed, to punish. The punishment to be meted out is
left to the prudent judgment of the bishop. Attention
must be paid to the word " debet" which implies that the
bishop is not at liberty to forego asking an account.*9
He is not, however, obliged to employ assessors or wit-
nesses to testify to the fact that he has demanded an
account.50
§ 2 again proves the solicitude which the Church wishes
to have bestowed on official and other (for instance, his-
torical), documents pertaining to the diocese.
4» Cfr. Ilouix, Dt Capilulis, p. 656 grievous am to omit that account.
f., who quotei Monacclli mnd Fag;- bo S. C C, April 14, 1725; Rich-
nani at saying that it would be a tar, 'itid., p. 376, o. 35.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
p
CHAPTER VIII
RURAL DEANS
The term " rural deans " is here employed for the
Latin expression "vicarii foranei," because the English
render it thus and the practical significance of both terms
is the same. Formerly their power was more extensive,
and therefore the name * vicarius" approaching that of
vicar-general, was quite suitable. Their origin was due
partly to the arrogance of the chorepiscopi and partly to
the extension of the parish system. The country bishops
became fully extinct towards the tenth century and their
place was taken by archpriests, who were assigned to the
civilly or ecclesiastically more important churches of the
diocese, and exercised a certain amount of jurisdiction,
but only in minor cases of frequent occurrence. They
also convoked the clergy of their district on the first day
of each month to instruct the priests how to conduct
themselves in the administration of the Sacraments, as
we read in the acts of a provincial council of London, of
1237. Besides, they watched over the conduct of the
clergy and the faithful and the administration of tempor-
alities.1 It was but natural, considering the tendency of
that time towards association (guilds), that the clergy of
the various districts of a diocese should form, as it were,
a chapter en miniature and elect a set of officials, the head
of whom was called dean. The deans had to render an
1 Cfr. Thomassin, Vitus tt Nova Mogunt, 1787, II. p. 13 *•); Bene-
Ditciplimo, P. I, lib. II, c. 3. <*<*. diet XIV, Dt Syn., III. 3. 5 *0
497
oogle
% .J,, Original fro ni
UNIVERSITY OF WISCONSIN
■
498 ECCLESIASTICAL PERSONS
account each year to the bishop.* The Tridentine Coun-
cil * enacted nothing special about them.
Can. 445
Vicarius foraneus est sacerdos qui vicariatui fora-
nco, dc quo in can. 217, a b Episcopo praeficitur.
The rural dean is a priest appointed by the bishop
over a limited part of the diocese (c. 2x7).
Can. 446
§ 1. Ad munus vicar ii foranei Episcopus eligat sa-
cerdotem quem dignum iudicaverit, praesertim inter
rectores ecclesiarum paroecialium.
§ 2. Vicarius foraneus ad nuturn Episcopi amovcri
potest.
■
He should be a priest chosen from among the parish
priests, and may be removed by the bishop at will.
Formerly the priestly character was not absolutely re-
quired, but now it is strictly insisted on. No special
qualifications are laid down, but the choice as well as the
removal is left entirely to the bishop, who is bound neither
by the consent nor by the advice of his chapter or con-
suitors.
Can. 447
§ 1. Vicario foraneo, praeter facilitates quas ei tri-
buit Synodus provincialis vel dioecesana et secundum
normas in eadem Synodo legitime statutas vel ab Epi-
scopo statucndas, ius et ofhcium est invigilandi potis-
simum :
a
c
iv. Scherer, I, 6i8f.; Sagmul- a Seaa. 24, c. 20, de ref, exempt*
Icr, /. c„ 1 100. The name dean U all matrimonial and criminal causes
probably taken from the Rule of St. from the power of the deana.
Benedict, c. ai.
oogle
*f~* ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 447 499
i.° Num ecclesiastic! viri sui ambitus seu distri-
ctus vitam ducant ad normam sacrorum canonum suis-
que officiis diligenter satisfaciant, praesertim circa
residentiae legem, divini verbi praedicationem, imper-
tiendam pueris atque adultis catechesim et obligatio-
nem infirmis assist end i ;
2.° Num deer eta lata ab Episcopo in sacra visit a-
tione exsecutioni mandentur;
3.° Num debitae cautelae circa materiam Sacrificii
Eucharistici adhibeantur ;
4.0 Num decor et nitor ecclesiarum et sacrae su-
pellectilis, maxime in custodia sanctissimi Sacramenti
et in Missae celebratione, accurate servetur; an sacrae
functiones secundum sacrae liturgiae praescripta cele-
brcntur; bona ecclcsiastica diligenter administrentur,
adnexaque ill is onera, in prim is Missarum, rite im-
pleantur; rectene conscribantur et asserventur libri
paroeciales.
§ 2. De iis omnibus ut reddatur certior, vicarius
foraneus debet, statutis ab Episcopo temporibus, sui
districtus paroecias visitare.
§ 3. Pertinet etiam ad vicarium foraneum, statim
atque audierit aliquem sui districtus parochum graviter
aegrotare, operam dare ne spiritualibus ac materialibus
auxiliis honestoque funere, cum decesserit, careat; et
curare ne, eo aegrotante vel decedente, libri, docu-
ments, sacra supellex aliaque quae ad ecclesiam perti-
nent, depereant aut asportentur.
D
This canon describes the office or functions of the rural
dean as follows :
Besides the faculties granted him by the provincial or
diocesan synod, to be used according to the norms laid
down by the same or determined by the bishop, the rural
I Original from
jf\^iOOglL UNIVERSITY OF WISCONSIN
500 ECCLESIASTICAL PERSONS
dean enjoys the right end office of watching, especially :
(i) as to whether the clergy of his district live up to
the requirements of the sacred canons and diligently per-
form their duties, particularly concerning residence,
preaching the word of God, giving catechetical instruction
to children and adults, and attending to sick calls;
(2) whether the clergy execute the decrees of the
bishop given at the visitation;
(3) whether they take the necessary precautions con-
cerning the matter of the Eucharistic sacrifice ;
(4) whether the rules concerning the adornment and
neatness of churches and sacred furniture, especially the
custody of the Blessed Sacrament and the celebration of
Mass, are accurately observed ; whether the sacred func-
tions are performed according to the rubrics; whether
the church property is carefully administered, and the
obligations, especially those accruing from Masses, are
properly discharged, and, finally, whether the parochial
books are correctly written and kept.
In order to inform himself of all this the rural dean
shall, at stated times established by the bishop, visit the
parishes of his district. As soon as he hears of the
serious sickness of a parish priest of his district, he shall
take care that the patient is properly provided for, ma-
terially as well as spiritually, and see to it that, in case
of death, a decent funeral service be held. Furthermore,
the dean shall watch that no parish books, papers, sacred
furniture, or other things belonging to the church are
lost or carried away during the sickness or at the death
of a priest.
The beginning of the canon mentions faculties which
may be granted to the rural dean either by the provincial
or the diocesan synod. The Third Plenary Council of
jte
s -l] ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 447 5<>i
Baltimore advised the Ordinaries to give their rural deans
"more or less extensive faculties," in order that they
might administer their office more efficaciously.* But as
far as we are aware, deans receive the same faculties as
other priests employed in parish work, — that is, if the
term faculties is taken in its usual sense. But " facul-
ties " may also mean powers in general, in which sense it
would involve a kind of participated jurisdiction. This
seems to us to have been the intention of the Third Balti-
more Council. If this surmise is correct, the enlarged
powers of deans would naturally have reference to the
correction of abuses existing in their districts, exclusive,
however, of legal procedure. In some countries it was
customary for the deans to dispense from the prohibition
of servile work on forbidden days. The new Code
grants this power to the parish priests in certain cases.5
Concerning the matters to which the vigilance of the
deans should be directed, not much need be said. Sev-
eral of them, e.g., residence, preaching, catechetical in-
struction, are explained under their respective headings.
All these matters require a knowledge of Canon Law,
which deans should possess. The III Plenary Council
of Baltimore says they should be endowed, not only with
piety and prudence, but also with learning.0
As to the " materia sacrificii Eucharistici," this seems
an almost superfluous admonition, yet actual occurrences
prove its necessity. Altar bread must be of wheat, and
for licit celebration in the Latin Rite it must be unleav-
ened. The wine must be pressed from grapes (vinum
de vite), and, outside of cases of necessity, it should
be fermented.7 At the present time it is necessary to
D
4 Acta et Decrtta, n. 29, p. 19. I Cf. Sabetti- Barrett, Thtol. Mot-
BCfr. can. 1345, | 1. alis. 1917. p. 563*-: P- "095-
*Atto <■* Dtcrtta, o. 30.
oqgl
Original fro m
UNIVERSITY OF WISCONSIN
5oa ECCLESIASTICAL PERSONS
combat an exaggerated prohibition movement, which, as
the cases of Oklahoma and Arizona show, aims not only
at curtailing personal liberty but at subverting the posi-
tive divine law.
With regard to n. 40, concerning the adornment of
churches and their neatness, and the proper observance
of the rubrics, we must refer to Titles XV and XVIII of
Book III. Accurate book-keeping is again insisted on.
In order to assure the execution of this canon, the
bishop should assign certain days, on which the rural
deans must visit the parishes of their respective districts.
The day appointed need not be made public; in fact, a
surprise-visit is sometimes more effective in manifesting
real conditions.
Can. 448
§ 1. Vicarius foraneus debet, diebus ab Episcopo
designatis. convocare presbyteros proprii districtus ad
conventus seu collationes de quibus in can. 131 eisdem-
que praeesse ; ubi vero plures habeantur huiusmodi coe-
tus in variis districtus locis, invigilare ut rite celebren-
tur.
§ 2. Si non sit parochus. debet residere in territorio
vicariatus vel alio in loco non valde distanti secundum
normas ab Episcopo definiendas.
On the days assigned by the bishop each rural dean
must call the priests of his district to a meeting or con-
ference (see can. 131), at which he is to preside; if
several meetings are held in different places of his dis-
trict, the dean must see to it that they be properly con-
ducted.
If the rural dean is not a parish priest, he must reside
od by GoOgle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 449 503
St
in his district, or at least near it, as determined by the
bishop.
The clerical conferences here mentioned were dealt
with above (can. 131 ) ; where several conferences are held
in various places of the same district, as may be necessary
in large or numerous dioceses, the dean is dispensed from
personally attending all of them, even though they may
be held on different days, in order not to overburden him,
especially if he is engaged in parish work. He may ap-
point a substitute, or entrust any priest with the presi-
dency ; but he must see to it that these meetings are held
in an orderly way and accomplish the purpose for which
they are instituted.
Can. 449
Saltern semel in anno vicarius forancus proprii vicari-
atus rationem reddere debet Ordinario loci, exponens
non solum quae intra annum bene gesta sint, sed
etiam quae mala obrepserint, quae scandala exorta
sint, quae remedia ad ea reparanda adhibita et quid-
quid agendum existimet ad ea radicitus exstirpanda.
At least once a year the rural dean must submit to the
Ordinary an account of the condition of his district. In
this report he shall freely point out the good that was
done as well as the evils that have crept in, scandals and
the means employed to uproot them, and make sugges-
tions as to what had best be done to eradicate abuses.
This canon sanctions an old custom. The report of
a rural dean is not limited to any one subject. He may
freely descant on the frequentation of the sacraments
and their administration (not only as far as the four
points of can. 447 are concerned), on the condition of
sodalities and schools, on the spread of sound literature,
".
►ogle
£ * ^ v J„ Original fro ni
UNIVERSITY OF WISCONSIN
■
p
504 ECCLESIASTICAL PERSONS
and if he is a temperance apostle, he may also touch on
that subject But he should also note that the III Plen-
ary Council of Baltimore 8 says that deans should watch
discreetly, admonish paternally, report truthfully. They
should not be overzealous tyrants, backbiters, or flat-
terers.
Can. 450
§ x. Vicarius foraneus sig ilium habeat vicariatus
proprium.
§ a. Praecedit omnibus parochis aliisque sacerdoti-
bus sui districtus.
The rural dean shall have a deanery seal, which should
differ from that of other deaneries.
He enjoys precedence over all the priests of his district.
His precedence is limited, first to the district and then
to the diocesan synod or provincial council; and finally
to the diocese. Outside these cases the general rules of
precedence obtain. What has been said of the deans
with regard to the clergy, applies also to religious em-
ployed in parish work (not to other religious).
8 Ada et Decrtta. n. jo.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CHAPTER IX
PARISH PRIESTS
As said above (can. 215 f.), the whole diocese formerly
went by the name of parish (mpowfa), a term originally
employed by the civil authority, and during the early
centuries there was but one church in each district, which
served as diocesan or parish church. The Council of
Sardica (c. 6) forbade the stationing of bishops in vil-
lages and small towns, lest the episcopal dignity and au-
thority should suffer.1 But the chorepiscopi were wont
to succour the faithful in places far removed from the
episcopal city, where alone the Eucharistic Sacrifice was
offered by the bishop.2 Even in Rome, although we read
of several titular churches, it was at the Lateran that the
suburbicarian bishops, surrounded by their clergy, cele-
brated the sacred mysteries.
In the fifth century (Chalcedon) we hear of ministers
dwelling in the country and appointed with a fixed tenure.
They attended to the needs of the faithful after the pa-
gans 8 had receded. This state of things caused the au-
thorities and landed proprietors to erect appropriate edi-
fices for divine worship and dwellings for the clergy, who
soon gained more extensive powers in the administration
of the Sacraments. One privilege especially now became
1 Cf. Funk, Manual of Church 153).
Hittory, 1913, I, p. 180. 8 Paganism (from papus, i. «., a
1 Thoraaasin, Vetus tt Nova Di+ country district) luted longeit in
dphno, P. ff I. II, C. SI, D. 7 (II. the co.intry.
505
oogle
k .,1,., Original from
UNIVERSITY OF WISCONSIN
506 ECCLESIASTICAL PERSONS
attached to these rural churches, viz.: the right Of pos-
sessing a baptismal font, which gradually came to be re-
garded as the mark of a full-fledged parish church. The
landed proprietors, or landlords, either out of devotion,
or for the sake of their subjects (slaves, serfs, vassals),
erected churches on their estates, where priests could
perform sacred functions. These churches, or rather
oratories, were not endowed with the same privileges as
the rural parish churches, but for the administration of
baptism as well as for the celebration of Mass on feast-
days depended on the parish church, to which they also
had to pay tithes or make certain gifts. In the eighth
century the entire rural clergy, like the clergy of the city,
formed a sort of college or corporation and met at stated
times.
In the cities progress was somewhat slower. For with
the exception of Alexandria* and Rome,5 where there
were several baptismal and penitential churches, it was not
until the eleventh century that the parish system was in-
troduced in the larger cities. The reason for this tardi-
ness must be sought in the fact that the bishop was con-
sidered the sole hierarch of the diocese, and especially
of the episcopal city. The development proceeded gradu-
ally, until it assumed the present shape. But one feature
must be added, viz., that of the beneficiary title attached
to parishes. This means that the parish church, by rea-
son of its foundation and dotation, was a moral entity,
though not a corporation in the sense of Canon Law, and
a stable (perpetua) portion of a larger organization, l. *.,
the diocese. The civil law endowed single parishes with
a corporative character. The Latin names by which such
parish churches went in former times, were ecclesia ru-
4 Thom*»flin, /. c., c. aa, n. i. o For Rome we bave the teati-
monj o( the Liber Ptmtificalis,
Go >gle
| , Original fro m
UNIVERSITY OF WISCONSIN
CANON 450
507
-
1
sticana, parochitana, dioecesana, and a head-priest or
arch-priest presided over each.
The oratories on private estates in course of time were
turned into parish churches and attended by a plebanus,
— a name sometimes also given to the parochus*
Parishes were not seldom united with monasteries, uni-
versities, and confraternities, which were all more or less
corporations or juridical persons. That monks were not
considered incapable of ruling a parish is evident, not
only from the fact that many settlements sprang up
around their monasteries, but also from conciliary de-
crees. Thus we read in can. 14 of a synod held at May-
ence in 847, under Rhabanus Maurus, that u no monk
should presume to accept a parish without the consent
of the bishop." 7 As long, however, as the monks, or
at least the majority of them, were not endowed with
the priestly character it was necessary for monasteries
to designate and support a vicar who, in the name of
the monastery and with the approval of the bishop,
would govern the parish incorporated with the monastery.
The same practice was followed by the universities, which
also had incorporated parishes and appointed their vicars.
Abuses, however, were not infrequent. Thus a synod
of London complained that the regulars paid their vicars
a miserly stipend.8 The consequence was a frequent
change of vicars to the detriment of orderly and effective
government. Hence the Council of Trent wished to see
permanent vicars placed over such parochial benefices as
were united to corporations.9
6 Cfr. Nillci, Commentaria in
Cone. Plcn. Bait. III., 1890. p. H«
9. 797-
T Thomassin, /. c, P. I, 1. II, c.
*5, n. 8 <Vol. II, p. 183).
■ The IVth Laterin Council re-
echoes this complaint, c. 30, X, III,
5, de praeb.
8 Sew. 7, c. 7; Seat. 11, c. 6;
Seu. 24, c. 13, de ref.
jle
Original from
UNIVERSITY OF WI5CGNSI
5o8 ECCLESIASTICAL PERSONS
Finally, mention must be made of a certain kind of
parish priest introduced in France and Belgium. The
concordat of 1801 required a reestablishment of parishes
in each diocese. Besides the regular parish priests, the
bishops were allowed, if need be, to appoint succursalistes,
— their number to be regulated conjointly by the bishop
and the civil prefect. These succursalists (desservants)
were appointed by the bishops and could be removed at
their good pleasure. Thus it seemed that one essential
element of the parish priest, vis., irremovability, was lack-
ing in this kind of " vicaires et desservants," as the thirty-
first of the organic articles called them. Yet Bouix main-
tains that they were true parish priests in the canonical
sense of the word.10 According to the Council of Trent,11
not only the perpetuity of the parish title (perpetuitas ob-
iectiva), but also the perpetuity of the parish priest's
tenure (perpetuitas subiectiva) is a requisite of the ca-
nonically established parochus. That the term later on
became broader must be looked upon as an innovation
or a gradual development.
Now let us hear what the Code establishes concerning
parish priests. There is first the definition:
'-■
Can. 451
§ 1. Parochus est sacerdos vel persona moralis cui
paroecia collata est in titulum cum cura animarum sub
Ordinarii loci auctoritate exercenda.
§ 2. Parochis aequiparantur cum omnibus iuxibus
et obiigationibus paroecialibus et parochorum nomine
in hire veniunt:
lOBouU, Dt Parocho, 185s. P* It Cfr. Seas. a*, c. 13; Santi-Leit-
134 ff. ner, I. Ill, tit 39, n. 6 (Vol. Ill, p.
-69).
■dbyC >Ie
Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 451 509
i.° Quasi-parochi, qui quasi-paroecias regunt, de
quibus in can. 216, § 3;
3.0 Vicarii pa roe dales, si plena pot estate paroeciali
sint praediti.
§ 3. Circa militum cappellanos sivc maiorcs sive
minores, stand um peculiaribus Sanctae Sedis praescrip-
tis.
A parish priest is a priest or moral person to whom a
parish is entrusted with the care of souls, to be exercised
under the authority of the Ordinary of the diocese.
The following are equal to parish priests as to parochial
rights and obligations and in law are known by the name
of parish priests:
(1) Priests who govern quasi-parishes, i. e., congre-
gations of the faithful existing in vicariates and prefec-
tures Apostolic (can. 216, § 3) ;
(2) Vicars of parishes who are endowed with full
parochial powers.
Military chaplains, major and minor, are subject to
special regulations by the Holy See.
There are four points in this canon which call for an
explanation.
(a) A parochus may be " a priest or a moral person."
In the first case, of course, he is a physical person, en-
dowed with the sacerdotal character, which is now an es-
sential requisite for a parish priest (can. 453). A moral
person is a community consisting originally of at least
three members, such as universities (in the ancient sense),
monasteries, chapters, in a word, all corporations. But
the term moral person may here also be taken in the sense
of an institute, whose juridical nature is determined by,
and which becomes the bearer of, rights bestowed for the
end or purpose for which it is instituted, e. g., a hosptial,
jte
v ,1,., Original from
UNIVERSITY OF WISCONSIN
Sio ECCLESIASTICAL PERSONS
an orphanage. In this latter case the exercise of rights
lies with the oeconomus or procurator, or, as he was for-
merly called, syndic. Both corporations and institutes,
the latter, of course, represented by their procurators,
may be what are called habitual parish priests (parochi
habituates), in order to distinguish them from those
(parochi actuates) who actually and de iure exercise the
care of souls.
(b) Every parish must be entrusted to such a parish
priest, as explained above (can. 216).
(c) A parish must be committed in titulum. A title
may be defined as " the legitimate cause of possessing
what otherwise does not belong to one." " It plays a
conspicuous part in prescription and possession. To hold
a parish in title, or the title to a parish, therefore, means
to be the owner or possessor thereof. However, no paro-
chus can be styled the owner or proprietor of a parish.
We might say that the bishop is the proprietor of all the
parishes in his diocese, especially if he holds them in fee
simple. But here " title " must be restricted to posses-
sion by a legitimate cause. By holding a parish, then,
" onimi et corporis detentione et iuris adminiculo" a
priest comes into the possession of a parish ; and this suf-
fices to say that the parish was given him u in title."
For as long as the title holds good, the actual possessor
cannot be deprived of it. However, it may happen that
the title is not real, but only presumptive (titulus puta-
Htms or caloratus), i.e., it is believed to have been con-
ferred, but was in fact never granted. For instance, a
monastery may have held possession of a parish for a
number of years sufficient to claim prescription, yet can-
not show any document which proves that the parish
11 Cfr. Reifienituel, II, 36, 127: "Titulus est iusta cauia poaiidendi
quod nostrum non eat."
J byC 'Ic
, ,1 , Original fro m
UNIVERSITY OF WISCONSIN
CANON 451 511
was duly united with the monastery. Does such a title
hold good? Yes, because if the monastic chapter was
bona fide convinced that the title was granted, there
was a legitimate cause for believing that the pariah be-
longed to it, and therefore the monastery has the right of
prescription.18
Neither does our Code determine anything to the con-
trary, for it only states * in titulum," without describing
the nature of the title. The only authority who can grant
a title to secular, minor or parish benefices in any diocese
is the bishop, and concerning the union of parishes with
moral persons can. 452 must be consulted.
(d) The last but most important element of a parish
priest is the care of souls (cura animarunt), which com-
prises the whole range of the forum internum, apart from
reserved cases. Consequently parish priests may be
called pastors, although it is true what Bouix M says, that,
in the strict sense, comprising the offices of teacher, sanc-
tifier, and judge or ruler, the title of pastor belongs to
the successors of the Apostles. But this does not detract
from the honor and office of the parish priests. Their
power is an ordinary power, given by virtue of their of-
fice, which the bishop cannot arbitrarily diminish, or take
away, or limit to such an extent that it would be an
empty title." But it is also true, as the Code says, that
their power is dependent upon, and subject to, that of
the bishop and that therefore they must exercise the care
of souls under the authority of the Ordinarius loci or
bishop.18 It follows that the institution of parish priests
is Cfr. c. 6, X, II, 26; Enget, II, point; he wrote against the Janien-
a(, n. a$. ists.
14 Bouix, D§ Porocko, p. 149 ff. 10 Benedict XIV, Dt Sym., V, 4,
is somewhat extreme, but can be z-
easily understood from hi* itand- lftJeii.
§le
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
512 ECCLESIASTICAL PERSONS
or pastors of souls, in this limited sense, is not of divine
law or origin, and that it is circumscribed by, and de-
pendent upon, the authority of the bishop."
§ 2 speaks of those who are equal to parish priests in
regard to rights and obligations, and mentions two
classes, vis: the quasi- parochi of Apostolic vicariates and
prefectures, and the vicars of parishes. About the for-
mer nothing need be added. The vicarii paroeciales are
further determined as such who are endowed with full
parochial power. Of these the Code speaks in the next
chapter (cc. 471 sqq.).
§ 3 adverts to military chaplains, of higher as well as
lower rank. In Austria, for instance, there are a military
vicar Apostolic with episcopal (titular) character, mili-
tary parish priests and chaplains. The vicar receives
ordinary and extraordinary faculties from the Apostolic
See,11 which are more freely communicated during the
time of war. Similar conditions obtain in Germany and
elsewhere. But all regulations concerning military chap-
lains must emanate directly from the Holy See, the
bishop not being competent in this matter.
Does canon 451 apply to the parish priests of the U. S.f
In order to decide this question 10 we must recur to the
factors which, taken collectively, constitute a parish
priest. They are: a priest holding a parish in Htulum
with the care of souls. That our pastors have the priestly
character and exercise the care of souls no one will deny.
But are our congregations parishes in the canonical sense ?
Returning to the definition of a parish as given in canon
216, we see that a territorially defined precinct, with a
IT Nilles, Comment in Cone. Bait. IP Putzer, Comment, in Facul-
III, P. II. p. 88. fates Apost., 4th ed., p. 17a f,
Q
em-
1B Cfr. Aichncr, /. e., | xia. Thei* phaticslly deniea the existence of
is now in the U. S. an Ordmorimi canonical parishes in the U. S.
Caitreiuis.
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 4Si 513
church and people, over whom presides a priest as their
proper pastor, constitutes a parish. In this definition a
twofold element may be distinguished, the one material,
the other formal. The material element consists of a
distinct territory and people with a church of their own.
The formal element is the pastor proper in the person
of a special rector. The material element is doubtless
present in the parishes of the U. S., with the exception,
perhaps, of the so-called " national " churches. But a
difficulty arises when we come to the formal element,
which is strictly connected with the condition of a parish
priest, vis.; that he should hold the parish in titulutn, —
in his own name. Upon this point the whole controversy
turns. The Second Plenary Council of Baltimore de-
creed that in all the provinces of the U. S., and especially
in the larger cities, where there are several churches, cer-
tain districts with clearly defined limits should be as-
signed to each church, and that parochial or quasi-
parochial rights should be given to the rectors.80 The
Third Plenary Council contented itself with repeating
this enactment and complained that existing conditions
did not yet permit the bishops to carry out the canonical
laws concerning parish priests proper." It also declared
that canonically erected parishes do not as yet exist in
this country." Now, then, what is lacking to make our
parish priests canonical parochi? The parish must be
given in titulutn, that is, the parish priest must govern
and hold the parish in his own name. This was prac-
tically done in many cases," especially those of churches
Q
so Ada tt Dicrtta, n. 113 f. corporated, by an act of the State
81 Acta tt Decreta, n. 3a f. legislature in fee simple, but either
21 Tbid., n. 24. These decrees as a corporation aggregate or a cor-
•re no longer to be followed Mindly. poration sole. (S. C. C, July 19,
28 The bishops are no longer per- 191 1; cfr. Am. Bed. Rtv., Vol. 45,
mittcd to have church property in- p. 386).
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
5i4 ECCLESIASTICAL PERSONS
which were incorporated, not in the name of the bishop,
but in the name of either the priest as corporation sole,
or in the name of the parish as corporation aggregate.
Besides, the bishop must give the parish priest the full
parochial rights which the care of souls demands, namely,
ordinary power, which, as Benedict XIV says, cannot be
taken away at random or arbitrarily limited. Are our
bishops required to do this by the Code? We answer
yes, unless the bishops request the Holy See to modify
the Code. Our hierarchy is now fully and unreservedly
embodied with the general hierarchy of the Church, and
therefore the canonical rules must be observed also in
the U. S. These rules require the appointment of paro-
chi propriu Why should our parish priests be only vicars
of the bishops? No other species of public functionaries
of the inferior clergy is to be discovered in the Code.
Furthermore it is a natural dictate that, where duties are
equal, rights should be equal also. And lastly, to speak
plainly, what hinders the bishops from declaring in writ-
ten terms what has de facto existed for a long time?
incorporation
Can. 452
§ 1. Sine Apostolicae Sedis indulto paroecia ncquit
personae morali pleno iure uniri, ita nempe ut ipsamet
persona moralis sit parochus, ad normam can. 1423, § a.
§ a. Persona moralis, cui paroecia sit pleno iure
unita, habitualem tantum curam animarum retiner*
potest, servato, quod ad actualem spectat, praescripto
can. 471.
a
c
o
Without an Apostolic indult no parish can pleno iure
>Ic
v ,|y. Original from
UNIVERSITY OF WISCONSIN
CANON 452 515
be united to a moral (juridical) person in such a way that
this person would be a parish priest.
Canonists distinguish a threefold union: plenissitno
iure, which is nothing else but an abbatia nullius or a ter-
ritory juridically separated from the rest of the diocese;
pleno iure, by which a corporaton (e.g., a university or
monastery) obtains the possession and administration of
a parish in matters spiritual and temporal ; semipleno iure,
by which a corporation or community becomes the tem-
porary administrator of a parish, either in matters tem-
poral or in matters spiritual, but not in both at the same
time, or at least not forever.
Of the first species enough has been said (cc. 319 ff.).
The last kind of union (semipleno iure) does not apply
here. The second touches chiefly parishes incorporated
with monasteries or religious communities. Here some
practical hints may not be amiss.
First and above all, the exact boundaries of the parish
must be settled between the bishop and the religious com-
munity. Then the conditions binding both contracting
parties must be laid down clearly and distinctly. Besides,
the reasons for the alienation must be stated. The docu-
ments of transfer must be signed and sealed by both
parties. The bishop may send his to the S. Cong. Con-
cilii, while the religious dispatch theirs to the S. C. Relig.
The bishop may include his document in the envelope
in which the religious send theirs to the S. C. Rel, and
both (having the same address on the inside, " Beatis-
simc Pater ") go to the latter Congregation, which for-
wards the papers of the Ordinary to the proper Congre-
gation. The bishop should mention the fact that he pro-
ceeded " auditis consultoribus et iis, quorum interest"
(can. 1428). Both parties, of course, are supposed to
p
oogle
k .,1,., Original from
UNIVERSITY OF WISCONSIN
516 ECCLESIASTICAL PERSONS
keep the documents received from Rome in their re-
spective archives.
If the document of the Apostolic See contains an af-
firmative answer, then, says § 2, the moral person to
whom the parish is pleno iure united, obtains only the
habitual care of souls, whilst the actual care is exercised
by a vicar.
Hence the distinction between habitual and actual pas-
tor. The former is the chapter or prelate, if the con-
stitutions confer that right upon him, whilst the actual
care with its obligations and rights are entrusted to the
vicar.
Can. 453
§ 1. Ut quis in parochum valide assumatur, debet
esse in sacro presbyteratus ordine constitutus.
§ a. Sit insuper bonis moribus, doctrina, animarum
zelo, prudentia, ceterisque virtutibus ac qualitatibus
praeditus, quae ad vacantem paroeciam cum laude gu-
bernandam iure turn communi turn particular! requi-
runtur.
The qualities of a parish priest are as follows: He
must be a priest of good morals, endowed with knowl-
edge, zeal for souls, prudence and all other virtues and
qualities required by either common or particular law
for the praiseworthy government of a vacant parish.
That the priestly character is required for a parochus
is evident from the fact that he must administer the Sac-
rament of Penance.24 Formerly it was not necessary that
the appointee should be a priest at the time of his ap-
pointment, provided only he received the priesthood
*4 Cfr. c. 12, X, III, 38, dc poenit. et rem., on annual confewion and
communion (Lot. Counc, uij).
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 454 517
a
within a year from the date of his appointment." Under
the Code, however, the priesthood is required at the mo-
ment the appointment is made, and hence the appoint-
ment, for instance, of a deacon would be ipso iure invalid.
The other qualities " prescribed in § 2 are not required
ad validitatent, but merely ad liceitatem. What the Code
says ad vacantem ecclesiam must be understood in the
light of can. 150, § 1, and therefore in the sense of a true
vacancy, as explained above. In the U. S. there are
no special laws concerning the qualifications of parish
priests, but the general law is assumed. However, if a
provincial council or diocesan synod should, e.g., enact
that certain conditions are necessarily required by partic-
ular circumstances, such an enactment would not be
against the common law.27 Neither would we call a civil
law requiring citizenship for a parish priest unjust For
the law recognizing the pastor as a public functionary, for
instance, at marriage, is entitled to set up conditions which
do not clash with his spiritual character or with the na-
ture of the Sacraments. Of course, such laws would not
be ecclesiastical until formally " canonized," or at least
approved of, by the Church.
irremovable and movable pastors
Can. 454
§ 1. Qui paroeciae admin is trandae praeficiuntur qua
proprii eiusdem rectores, stabiles in ea esse debent;
quod tamen non impedit quominus omnes ab ea remo-
veri queant ad normam iuris.
JS
m
SI Cfr. c. it, 6(, I, 6; Trid., Scm. the effect that all parish priests
7, c 3. 6hould have some knowledge of the
2« Trid., I. c. prevalent languages would certainly
*T Thus, for instance, in a 1 in be reasonable,
guirtieally mixed diocese, a law to
.'le
£ " ^ vrl|^ Original from
UNIVERSITY OF WISCONSIN
-'
■
pi
518 ECCLESIASTICAL PERSONS
§ a. At non omnes parochi eandero obtinent stabili-
tatcm; qui maiore gaudcnt, inamovibiles; qui minore,
amovibilcs appcllari solcnt-
§ 3. Parocciac inamovibiles ncqucunt amovibilcs
reddi sine beneplacito apostolico, amovibilcs possunt
ab Episcopo, non autcm a Vicario Capitulari, dc Capi-
tuli cathedral is consilio, inamovibiles dcclarari; novae
quae erigantur, sint inamovibiles, nisi Episcopus, pru-
denti suo arbitrio, attentis peculiaribus locorum ac
personal urn adiunctis, audi to Capitulo, amovibilitatcm
magis cxpedire decrevcrit.
§ 4. Quasi-parocciae sunt omnes amovibilcs.
§ 5. Parochi autcm, ad religiosam familiam perti-
nentcs, sunt semper, ratione personae, amovibiles ad
nutum tam loci Ordinarii, monito Superiore, quam Su-
perioris, monito Ordinario, aequo iure, non requisite
alterius consensu: nee alter alteri causam iudicii sui
aperire multoque minus probare tenetur, salvo recursu
in devolutivo ad Apostolicam Sedem.
A priest who is set over a parish as rector should be
permanent. This permanency does not, however, imply
that he cannot be removed according to the law.
All parish priests are not permanent in the same degree,
but the irremovable rectors in a higher, and the removable
rectors in a lesser degree.
Irremovable cannot be converted into removable par-
ishes without an Apostolic indult, whereas removable par-
ishes may, with the advice of the cathedral chapter, be
declared irremovable by the bishop, but not by the vicar-
capitular. Newly erected parishes are irremovable, un-
less the bishop is compelled by special circumstances of
place or persons to declare them movable, which he is
§le
k ,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 454 519
a
empowered to do if he prudently deems it expedient, after
hearing his chapter.
Quasi-parish priests are all removable.
Parish priests who belong to a religious community
may, as far as their person is concerned, be removed at
-
will and with equal right either by the Ordinarius loci,
after having notified the religious superior, or by the re-
ligious superior, after having notified the Ordinarius loci.
Neither is bound to state and much less to prove the rea-
son for his proceeding to the other. Recourse in devolu-
tivo to the Holy See is open to both.
This canon was doubtless dictated by regard for the
circumstances prevailing in several countries. It cannot
be denied that the notion of a parish priest, in the canon-
ical sense, includes his permanency or subjective per-
petuity in the parish.28 Our canon distinguishes, as the
Second and Third Plenary Councils of Baltimore2* did,
between irremovable and removable rectors. Irretnov*
able and permanent are synonymous terms, and the jurid-
ical quality attached to both is subjective perpetuity,
which involves that the priest in permanent possession
of a parish cannot be removed save upon trial, which
supposes a crime (delictum). Such a trial had to be
instituted according to the instructions of the S. C. P.
F., 1884, " Magnopere." 80 Our canon acknowledges a
certain kind of irremovability, but not an absolute one.
How to proceed in removing irremovable rectors is
stated in cc. 2147-2156, which are modelled upon the
Motu proprio " Maxima cura" of Aug. 20, 1910.
Of a lower degree is the perpetuity of removable rec-
tors, to which class in this country most rectors belong,
»8Cfr. c. 30, X, III, 5; c. ud. n. 1*5; Ball. III., n. 32.
6', III, 18. BOCfr. Acta et Deereta Cone.
19 Acta et Deereta Cone. Bait. II., Bait. III., p. 287 ff.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
520 ECCLESIASTICAL PERSONS
because only every tenth parish priest was declared ir-
removable. " Removableness, however, being different
only as to the degree of perpetuity, does not imply that
such a rector can be removed without reason or formal-
ity, as shall be seen in cc. 2157 ff.
Note that irremovableness or removableness do not in-
trinsically follow the character of a parochus proprie
dictus; otherwise the Code could not state that all parish
priests do not enjoy the same degree of irremovableness.
As already remarked, the new law is at variance in this
regard with the old. What § 3 of the present canon says
had already been enacted by the Third Plenary Council
of Baltimore (n. 34). The bishops, therefore, cannot
change parishes with irremovable rectors into such with
removable rectors, because such a change would mean a
deterioration of the condition of the churches, which is
not permitted by law, unless there are sound reasons for
it, which must, furthermore, be submitted to the Holy
See for the necessary indult. On the other hand, the
same principle gives the bishop the right of converting
removable rectorships into irremovable, for this change
signifies an amelioration of the status of the diocese.82
We said above that all parishes should receive parochi
properly so-called. This statement receives an additional
proof from the declared intention of the Holy See to
introduce the parochial system everywhere.
The last paragraph of our canon determines the rela-
tion between the Ordinary and the religious superior con-
cerning the vicar or temporary rector of a parish in
charge of religious. Benedict XIV {" Firmandis," Nov.
6, 1744) settled that question, and our text is but a verbal
restatement of §11 of the aforesaid Constitution.1*
t\ Cone Bait. lit., n. 35. l»Cf. Richter, Trid., p. 590.
32 Cf. Smith, Elements, I, p. 133 1.
jle
£ * ^ .. -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 4SS 521
Hence, if the bishop wishes to remove a religious from
the post of rector, he may do so at will, and is not bound
to give his reasons to the religious superior or to prove
his right to make the change. The same applies to the
religious superior. Should a clash ensue, the last and
only remedy is an appeal to Rome (the bishop to the
S. C. Cone, and the religious superior to the S. C. Rel.),
Such an appeal leaves the removal in force until the Holy
See has decided. For this is the meaning of an appeal
" in devolutivo " as opposed to an appeal " in suspensive*,"
that it does not suspend or nullify an act or sentence until
the higher instance has decided the case.
appointment of pastors
Can. 455
§ i. Ius nominandi et instituendi parochos compe-
tit Ordinario loci, exceptis paroeciis Sanctae Sedi re-
servatis, reprobata contraria consuetudine, scd salvo
privilegio electionis aut praesentationis, si cui legitime
competat.
§ 2. Sede vacante aut impedita ad normam can. 429,
ad Vicarium Capitularem aliumve qui dioecesim regat,
pertinet:
i.° Vicarios paroeciales constituere ad normam can.
472-476;
2.0 Confirmare electionem aut acceptare praesen-
tationem ad paroeciam vacantem, et institutionem
elect 0 aut praesentato concedere;
3.0 Paroecias liberae collationis conferre, si scdes
ab anno saltern vacaverit.
-
§ 3. Horum nihil Vicario Generali competit sine
mandato speciali, salvo praescripto cit. can. 429, § x.
►ogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
522 ECCLESIASTICAL PERSONS
Can. 456
Ad paroecias religiosis concrcditas Superior, cui ex
constitutionibus id competit, saccrdotem suae religio-
nis pracsen tat Or dinario loci ; qui eidem, servato prae-
scripto can. 459, § 2, institutioncm concedit.
Can. 457
Quasi-parochos e clero saeculari proprius loci Ordi-
narius nominal, audito Consilio de quo in can. 30a.
Can. 458
Vacant! parocciae curet loci Ordinarius pfoviderc
ad norrnam can. 155, nisi peculiar ia locorum ac perso-
narum adiuncta, prudenti Ordinarii iudicio, coJlatio-
nem tituli paroecialis differendam suadeant
With the exception of parishes reserved to the Holy
See, the right of appointing and investing parish priests
belongs to the Ordinary of the diocese. All contrary cus-
toms are hereby rejected, with due regard, however, to
the privilege of electioa or nomination
If the episcopal see is vacant or impedita (can. 429),
the vicar-capitular or administrator of the diocese is en-
titled :
(1) to appoint a parochial vicar according to cc. 472-
476;
(2) to ratify the election and accept the presentation
of a vacant parish and invest the one elected or presented ;
(3) to appoint pastors to parishes whose appointment
belongs to the bishop if the see has been vacant at least
one year.
The vicar-general is not allowed to perform any of
jle
£ " ^ s ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 458 523
these acts without a special mandate, save in the case
mentioned in can. 429, § 1.
This canon provides that, as a rule, the appointment to
parishes belongs to the Ordinary of the diocese, because
he is the pastor of his district by virtue of his office.
However, the Pope, being the pastor of pastors, and hav-
ing plenary jurisdiction over the whole Church, also has
a right to make appointments to parishes. This right was
claimed and exercised by the Roman Pontiffs very exten-
sively during the Avignon period (1304-1378). The
principle of reservation had been emphatically asserted
already in a Decretal a* of Clement IV. This decretal
mentions as reserved to the Roman Pontiff all benefices
which became " vacant at the Apostolic See." This term
is explained by canonists as meaning that every benefice
becoming vacant where the Pope resided, or within a
radius of 40 miles (40,000 paces), was subject to papal
reservation. Therefore any benefice whose holder died
within that territory could not be conferred by the local
Ordinary, but only by the Pope. This law was adopted
as a rule (prima) of the Apostolic Chancery. But, we
may be permitted to add, neither the law laid down in
the Decretals, nor the first rule of the Apostolic Chan-
cery was ever applied to this country. Nor could it in
justice be applied, for with the exception of a few par-
ishes in the province of San Francisco and one in New
Orleans, there are no benefices, strictly so-called, in the
U. S." Hence we are inclined to hold that papal reserva-
tions do not interfere with the bishop's free right of ap-
pointing parish priests.
■_■..-
14 Cf. c a\ 6°, III, 4; concerning 85 Cfr. Calk. Encyc, II, 474-
the historical part see v. Schcrcr, I, Other rules, like the ninth of the
28.1; Wemr, Jus Dtcrtl. 1 ed. II, Cone. Apost, concerning papal
p. 448 ff.; Sagmuller, p. 372; Bouix, months, rtfer to higher benefices
D$ Parocho, p. 3*0'. °nly.
jte
k ,1,., Original from
UNIVERSITY OF WISCONSIN
524 ECCLESIASTICAL PERSONS
Two other obstacles to the free granting of parochial
offices are mentioned: the privilege of election and the
privilege of presentation. What election means has been
explained above. But the question arises what is meant
here : — whether an election in the canonical sense, as
that performed by a chapter, or an election by the con-
gregation. Thus, for instance, in Switzerland parish
priests are chosen by the congregation by a majority of
votes. The Code seems to regard this as a privilege. It
is a privilege with regard to common law, but based upon
an ancient custom.*6
The other mode of conferring a parish is by presenta-
tion, which means that the pastor is designated by a pa-
tron (patronus), who for some reason is entitled to exer-
cise this right, as is the case, e.g., in Spain and other
countries in which concordats are still in force. In the
U. S. there is neither election nor presentation to hamper
the free choice of the bishop. But even where these
privileges are enforced, the priest elected or presented
needs episcopal institution or investiture, i. e., the ex-
pressed judgment of the Ordinary that the candidate is
fit, and the formal bestowal of parochial rights.
The Code next proceeds to determine the power of
the vicar-capitular or administrator. He is entitled to
appoint temporary vicars or assistants to vacant parishes
(of whom more shall be said in the following chapter)
and to grant investment to such as are elected or pre-
sented, for in this case the right of libera collatio, belong-
ing exclusively to the bishop, is not interfered with, but
only an act of jurisdiction is performed of which the
administrator is capable. Lastly, the vicar-capitular is
now entitled to confer all those parochial offices, the op-
tflCf. Werax, II, n. 287 (p. 393, «d. 1.)
"-.
GoogI
Original from
UNIVERSITY OF WISCONSIN
CANON 458
525
-■
pointment of which would otherwise belong to the bishop.
Here a departure from the old law is noticeable.37 How-
ever, this power can be used only after a full year's
vacancy of the episcopal see ; but the vicar need not apply
for the exercise of that power to the Holy See,89 because
the law itself confers it.
§ 3 of canon 455 defines that the vicar-general does not
enjoy the powers ascribed to the vicar-capitular in § 2.
This is no superfluous addition, for in many respects
both are considered equal, and a comparison between
them has been drawn by prominent canonists.80 The
vicar-general can make no appointments to parishes with-
out a special mandate, which had best be given in writing.
(For instance: " I hereby authorize you to appoint to the
vacant parish of N. whom you think worthy," etc.)
This does not mean that the bishop designates the priest,
on whom the parish is to be conferred, for then the vicar-
general would not be mandatarius, but merely executor.
In one case only does the vicar-general not need such a
special mandate, viz., when the episcopal see is impedita,
as explained above under can. 429, § 1.
Canon 456 ordains that for parishes entrusted to a
religious order, the respective superior who exercises that
right under the constitution shall present a priest of his
community to the Ordinary of the diocese, who shall in-
vest him in conformity with can. 459, § 2.
This canon does not distinguish between a parish in-
corporated with a religious community pleno iure or only
setnipleno, but employs the general term "ad parochias
religiosis concreditas " ; and hence both kinds are under-
stood. Presentation by the superior is mentioned as a
-
IT Cfr. c. a, X, I. 9; c. an. S x, 6°,
1,8.
MCfr. Weraz, Jtu DtcrtL, II,
p. 969, nota 943.
80 Benedict XIV, De Syn. DioiC,
II, 9. 4.
oogle
Original from
UNIVERSITY OF WI5C0NSI
526 ECCLESIASTICAL PERSONS
conditio fine qua non. The competent superior is he
whom the constitutions of the respective order clothe with
the right of presentation. We believe that, generally
speaking, only the " superior es maiores" mentioned in
can. 488, 8.° are intended. In the case of the Benedic-
tines, the Abbot of the monastery, not the Abbot Primate
or the Abbot President; in other orders and congrega-
tions with provincial organization, the provincials, their
substitutes or representatives. If the respective constitu-
tions provide otherwise (either extending or restricting
the power of the superiors), they must be followed. The
candidate presented must be a priest endowed with all
the qualities required for a parochus. Therefore our
canon refers to can. 459, §2, where the bishop is called
upon to judge the ability of candidates presented by reli-
gious superiors — not their learning only, but also other
necessary qualifications. Hence the bishop would be
justified in requiring an examination as to the fitness
of the candidate presented, but he is not obliged to sub-
ject him to an examination if he is morally certain as
to his qualifications. If the candidate is found fit, the
bishop is bound to give him the investiture.40 The bishop
is not entitled to subject a religious thus presented to a
concursus, for this is neither prescribed by the Code nor
favored by the old law.41
We may add that the Decretals demand that the su-
perior (prelate, abbot) ask the consent of his chapter,
unless ancient custom and prescription has derogated
Q
40 Cfr. Trid., Sets. 25, c 11 de tus Mont, I.e.)
regg.; Pius V, "Ad cxequendum," 41 Cfr. En gel., De Privxltgiis et
I 4 f. (Bull. Rom., IV, II, 40a); Juribus Monatteriorum, privil. 46,
Ptatui Mont, Praelectiones Juris de unions pleno jure, n. 2, accord-
Heg., ed. 2, II, p. 20. Even a re- ing to Pius V, " Ad exequendura "
liffious superior, though a prelate, (/. r.)( which is not revoked by
may be subjected to an examina- Benedict XIV, " Cum illud."
tion. (S. G C, Jan. 7, 1755; Pi»-
>Ic
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 459 p 527
from, or abrogated, the right of the chapter. The Code
does not abrogate that right, and hence, if the constitu-
tions do not give the unqualified right of presentation to
the superior, and no custom has abrogated the right of the
chapter, the superior is obliged to ask the chapter.42
Under canon 457 quasi- parish priests of the secular
clergy are appointed by the Ordinary of the diocese, vi-
cariate, or prefecture Apostolic, after hearing his chap-
ter, according to can. 302.
Canon 458 ordains that the Ordinary of the diocese
shall provide for a vacant parish according to can. 155,
unless peculiar circumstances make a delay advisable.
The canon referred to (155) demands that a new pas-
tor be named within six months from the date when the
vacancy becomes known to the bishop. Circumstances
making a delay advisable may have reference to place or
person. Circumstances of place may be material or
moral, e.g., unpaid debts, unsafe conditions by reason of
a fluctuating population, the erection of a parish school,
the advisability of punishing the people for their treat-
ment of their former pastor, etc. Circumstances of per-
son have reference to the person to be appointed, for
instance, if there be a lack of priests qualified for the
place.
p
examination — concursus
Can. 459
§ 1. Loci Ordinarius, graviter onerata eius consci-
entia, obligatione tenetur vacantem paroeciam illi con-
ferendi. quern magis idoneum ad earn regendam
habuerit, sine ulla personarum acceptione.
§ a. In hoc iudicio ratio haberi debet non solum
41 Engel, U c„ in parocbiu, etc., 46, z.
>gle
Original from
UNIVERSITY OF WISCONSIN
'-
5*8 ECCLESIASTICAL PERSONS
doctrinae, sed etiam earum omnium qualitatum, quae
ad paroeciam vacantem rite regendam requiruntur.
§ 3. Quare loci Ordinarius :
z.° Ne omittat documents, si qua sint, ex Curiae
tabulario desumere quae clericum nominandum respi-
ciunt et notitias, secretas quoque, si opportunum iudi-
caverit, prudenter exquirere etiam ex locis extra dioe-
cesim;
a.° Prae oculis habeat praescriptum can. 130, § a;
3.0 Clericum examini super doctrina coram se et
examinatoribus synodalibus subiiciat; a quo, de con-
sensu eorundem examinatorum, potest dispensare, si
agatur de sacerdote doctrinae theologicae laude com-
mendato.
§ 4. In regionibus in quibus paroeciarum provisio lit
per concursum sive specialem ad normam const. Be-
nedict! XIV Cum illud, 14 Dec. 1742, sive generalem,
haec forma retineatur, donee Scdcs Apostolica aliud
decreverit.
The Ordinary of the diocese is seriously admonished of
his obligation to confer a vacant parish only on the one
whom he deems fittest for its government, without per-
sonal favoritism.
In forming his judgment as to fitness of a candidate,
he should consider not only learning but also the other
qualities that arc required for successfully governing a
parish.
Hence the Ordinary:
(1) shall not neglect to inspect the documents in the
diocesan archives, if there are any that have reference
to the clergyman to be appointed, and, if he deems it
expedient, shall prudentiy seek to obtain secret informa-
tion, even from outside the diocese ;
( *r\r*nl*> Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CANON 459 529
(2) he shall faithfully comply with can. 130, § 2 (con-
cerning examinations) ;
(3) he shall subject the candidate to an examination
in the presence of the synodal examiners; however, he
may, with the consent of the examiners, dispense from
this examination if the priest concerned has distinguished
himself in theology.
Where appointments to parishes are made by means
of the concursus, — either the special concursus described
in the Constitution of Benedict XIV, "Cum Mud" Dec
14, 1742, or a general concursus, — this method should be
followed until the Apostolic See decrees otherwise.
The Council of Trent issued various decrees concern-
ing the examination of candidates for vacant parishes,
laying special stress on the necessity of such examina-
tion and permitting no appeal. A solitary exception was
made in favor of those presented by universities.48 Pius
V and Clement XI issued constitutions to the same effect,
and Innocent XI condemned the opinion of those who
asserted that the Tridentine decrees were intended only
to exclude unworthy candidates, not to give preference
to the more worthy.44 From this we may understand
why § 1 of our canon appeals most earnestly to the Or-
dinary (" graviter onerata eius conscientia"), exhorting
him to appoint the fittest candidate (magis idoneum).
The Code insists upon fitness rather than worthiness.
The term fitness refers to the juridical qualities mentioned
in §2.
That he may form an objective and a safe judgment of
a candidate's fitness, the law enjoins the Ordinary to
4lCfr. S«s». 7, c. 13; Seas, a* c. 378(1.).
18; Sew. as, c. 9, de ref.; Pius V, *< Benedict XIV, "Cam Olud ";
"In conferendit," April 15, 1567 cfr. Bouix, Dt Parocho, p. 339.
(Richter, Trid., p. 575; p. 55. PP-
oogle
{* ^ v,| Original fro m
UNIVERSITY OF WISCONSIN
530 ECCLESIASTICAL PERSONS
gather information about him, to study the records of
previous examinations, especially those which the candi-
date had to undergo during the three years immediately
following his ordination, and, finally, to subject him to
another test, in the presence of the board of examiners.
The matter of this final examination and its method
depend on the examiners. It must be passed by every
secular priest who is to be appointed to a parish, whether
irremovable or movable, unless the applicant has distin-
guished himself in theology. Wherein this distinction
consists is not precisely stated and hence room is left for
discussion. A doctor of divinity, who has received his
title from a Catholic university, no doubt enjoys that dis-
tinction. But as no academic degree is mentioned, it
would not be against the spirit of the law if a professor
of sacred theology in the episcopal seminary were ac-
corded the privilege of exemption. The term " theology "
is generally taken to comprise dogmatic, moral, and pas-
toral theology, and Holy Scripture. Concerning canon
law a doubt might arise from the fact that it seems not
to suffice for a canon theologian.40 But as in our case
the question does not turn about that office, since, more-
over, canon law now forms part and parcel of theological
training, and a degree in canon law can be obtained only
after a postgraduate course, and it would be difficult to
imagine a solid canonist without a thorough knowledge of
theology proper and church history, we may safely in-
clude licentiates, doctors, and professors of that noble
science in the category of the " doctrinae theologicae
laude commendati,"
However, the bishop cannot decide this point by him-
self, but needs the consent of the examiners. This COn-
40 Benedict XIV, Dt S>»., XIII, 9. <7«
jle
t k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 459 53*
sent may be given by each one individually, or by vote,
for no chapter-act is intended.
§ 4 treats of the concursus, which is twofold, either
special, as described by Benedict XIV, or general, which
does not accurately follow the rules laid down in the
aforesaid Constitution. The Third Plenary Council of
Baltimore adopted the Constitution ''Cum illud" for all
irremovable rectors ; 4fl and therefore for such the enact-
ment of our Code holds good and must be followed as a
universal law. The substance of that Constitution is as
follows :
(i) When a parish becomes vacant, the bishop shall,
by a public edict, fix a suitable day for the holding of the
competitive examination, notifying at the same time all
who wish to make the concursus that they must, within
this time and before the day set apart for the concursus,
file with the diocesan chancellor testimonials, judicial or
extra-judicial, of their fitness, merits, qualifications, etc.
After the expiration of this time, no testimonial or docu-
ment of any kind can be received.
(2) The chancellor must make out a written summary
or synopsis of all the documents or testimonials presented
by the various candidates and give a copy of this synop-
sis to the bishop, and to each of the examiners, who in
approving candidates after the examination, must take
into account, not merely their learning, but also their
other merits and qualifications.
(3) In case a rejected competitor appeals either a mala
relatione examinatorum or ab irrationabili iudicio epi-
scopi, he must produce before the judge of appeal all the
acts or records of the examination held in the first in-
stance, which must be given him for that purpose by the
-
*a Acta el Dtcrtla, n. 36, on. 40 ff. </. c, p. aj 0.); Smith, Element*,
1, p. 416 ff.
jle
/■~* -» v J„ Original from
UNIVERSITY OF WISCONSIN
532 ECCLESIASTICAL PERSONS
chancellor. The judge ad quern must pronounce his de-
cision solely and exclusively on the strength of the rcc-
ords or acts of the first concursus. Hence he cannot
order any new concursus, nor receive any documents or
testimonials other than those contained in the acts of the
first instance,
(4) Finally, when the judge ad quern pronounces sen-
tence in entire conformity with the appointment of the
Ordinary, that is, in every respect against the appellant
and in favor of the competitor appointed by the bishop,
no further appeal is allowed, and the controversy becomes
res iudicata. But if he reverses the action or appoint-
ment of the Ordinary, the competitor appointed by the
bishop can appeal to the higher judge, whose sentence
shall be final and unappealable.
(5) The concursus itself must be held in the follow-
ing manner:
(a) The same questions must be proposed to all com-
petitors, as also the same case (moral, liturgical, canon-
ical, pastoral) and the same gospel-text upon which they
must compose a short sermon ; all these must be dictated
at one and the same time, and the same length of time
allowed for the answer.
(b) All must sit in the same room, and are not allowed
to leave before they have completed the composition.
(c) They must write the answers in Latin, except the
sermon, in their own hand and sign them.
(d) All answers, as well as the sermon, as soon as
offered, must be signed by the presiding chancellor, the
examiners and the bishop or his vicar, if the latter was
present at the examination.
(e) The judgment upon the sufficiency of the answers
must be passed by the examiners at the place of exam-
Gw >gle
, ,1 , Original fro m
UNIVERSITY OF WISCONSIN
CANON 459
533
ination, and must include a verdict on each candidate's
conduct, virtues, and prudence. But the examiners must
give only an objective statement as to the ability of the
candidate, and leave the judgment as to the greater or
lesser degree of fitness to the bishop.47
A general concursits was proposed at the Vatican Coun-
cil by the German bishops, especially for larger dioceses.48
This examination, it was suggested, should be held once
a year and turn chiefly upon the learning of the candi-
dates. The other qualities were to be considered at the
time a parish became vacant. Those who had' passed the
examination once, were considered fit for any charge,
so far as doctrine was concerned. In the £/. S., accord-
ing to the Third Baltimore Council (n. 36, n. 43), only
those priests can be admitted to the concursus who have
been laudably engaged in the sacred ministry for at least
ten years in the diocese, and have within that time given
proof of their ability to govern a parish spiritually and
temporally, either in the capacity of simple rectors, or in
some other way. After the lapse of six years they must
undergo another examination if they wish to be ap-
pointed to an irremovable rectorship. This general con-
cursus was embodied by the Council in its decrees,48 and
since the Code mentions it also, it is not to be looked
upon as abolished. But it is intended only for dioceses
whose size does not permit calling a special concursus.
Also other " peculiar circumstances " are mentioned
which render a general concursus advisable.
4T Cfr. Cone. Bait. III. nn. 36. 5*
(/. c, p. 23. P- a8)-
48 At the Vatican Council, cfr.
Smith, EUmtnts, I, 4*1; Granderath-
Kirch, Gtsch. d. Vatik. KonnU,
1903. in. 439 ff.
*» Acta €t Dtcrela, n. 59 </. c, p.
30).
oogle
Original from
UNIVERSITY OF WISCONSIN
■
534 ECCLESIASTICAL PERSONS
unity and possession
Can. 460
§ 1. Parochus ad norm am can. 156 imam tan turn
titulo paroeciam habeat, nisi de paroeciis agatur aeque
principaliter unitis.
§ a. In eadem paroecia unus tantum debet esse pa-
rochus qui actualem animarum curam gerat, reprobata
contraria consuetudine et revocato quolibet contrario
privilegio.
Can. 461
Curam animarum parochus obtinet a momento
captae possessionis ad normam can. 1443-1445; et ante
possessionem aut in ipso possessionis capiendae actu
fidei professionem edere debet, de qua in can. 1406,
§ h n. 7-
A parish priest, according to can. 156, can hold only
one parish in titulum, unless two parishes are united
ae que principaliter.
In each parish only one is the parish priest, who has
the actual care of souls; all contrary customs are repro-
bated and contrary privileges repealed.
Canon 460 first speaks of the incompatibility of two
parochial charges in one and the same person, and refers
to can. 156, which forbids the holding of two offices that
cannot be discharged at the same time by the same per-
son. This law is taken over from the Decretals B0 and the
c
Tridentine Council61 and is based partly upon the re-
quirement of personal residence, and partly upon the pro-
hibition of avarice. Hence no one is allowed to possess
two parishes in tituhtm as quasi-proprietor or rather pos*
so Cc. 15, »8, X, III, 5 de praeb.; *1 Seu. 7, c. 4; Sew. **, c 17.
Engel, III, 5, a. 6*.
jle
f^ ^ Krt\r* Original from
UNIVERSITY OF WISCONSIN
CANON 461
535
1:
sessor. An exception, however, is made in favor of two
parishes united in such a way that both retain their own
titles and rights and neither is subject to the other.02
Note, however, that such a union must be objective, not
subjective, that is to say, the two parishes are not allowed
to be united in favor of the pastor or holder, but purely
with regard to themselves. For a subjective union would
be nothing but a veiled plurality of benefices, forbidden in
the case of two curacies or rather parishes (cura amina-
rum).
§ 2 safeguards unity of government." It is directed
against interference on the part of any juridical person
(chapter, monastery) with the rights of the pastor in the
care of souls and against encroachments on the part of
assistant priests. Needless to say, under the new law,
as under the old, several priests may be employed in a
parish.6*
Canon 461 says that the pastor has the care of souls
from the moment of his taking possession of the parish
(can. 1443-1445). Either before or in the act of taking
possession he must pronounce the profession of faith
(can. 1406, § 1, n. 7). Pastors should be installed either
by the bishop himself or by his delegate, If a pastor
does not wish to be present himself at this function he
may be represented by a procurator endowed with a spe-
cial mandate. But he cannot pronounce the profession
of faith by proxy.
sa Cfr. can. 1419.
BlCfr. c. 41, C. 7. Q- 1; C. 4, C.
3i, q. a, where the allegory of hus-
band and wife (pariah) is alleged;
C 15, X, III, 4- Barbosa, De
Parochc, I, 1, a. 43, Engel, III, 29.
n. u, »ni others won the case
against Bouix, (T>* Paroeho, p. 190
ff.), who maintained that the law
does not strictly forbid several pai-
tors; our text is from c. 15, X, III,
s.
64 Cfr. c. 3, X, I, 3; *nd the
chaptcr of our Code on Vicars.
oogle
Original from
UNIVERSITY OF WISCONSIN
536 ECCLESIASTICAL PERSONS
St
rights of parish priests
Can. 462
■
Functiones parocho reservatae sunt, nisi aliud iure
caveatur:
z.° Baptismum confcrrc sollcmniter;
a.° Sanctissimam Euchaiistiam publico ad infirmos
in propria paroccia dcfcrrc;
3.0 Sanctissimam Eucharistiam publico aut priva-
tim tanquam Viaticum ad infirmos dcfcrrc atquc in pe-
riculo mortis constitutes extrema unctione roborare,
salvo pracscripto can. 397, n. 3, 514, 848, § 2f 938, § a;
4.0 Sacras ordinationcs ct incundas nuptias denun-
tiare; matrimoniis assistcre: nuptialem benedictionem
impcrtu-i ;
5.0 Iusta funcbria pcrsolvcrc ad normam can. 1216;
6.° Do 1 nib us ad normam librorum liturgicorum
bcnedicere Sabbato Sancto vel alia die pro locorum
consuetudinc ;
7.0 Fontem baptismalcm in Sabbato Sancto bene-
dicere, publicam processioncm extra ecclesiam ducere,
benedictiones extra ecclesiam cum pornpa ac sollemni-
tate impertiri, nisi agatur de ecclesia capitulari et Ca-
pitulum has functiones peragat.
Can. 463
§ 1. Ius est parocho ad praestationes quas ei tribuit
vel probata consuetudo vel legitima taxatio ad normam
can. 1507, § 1.
§ 2. Potiores exigens, ad restitutionem tenetur.
§ 3. Licet paroeciale aliquod oiricium ab alio fuerit
expletum, praestationes tamen parocho cedunt, nisi de
contraria offerentium voluntate certo constet circa
summam quae taxam excedit.
jle
£ * ^ , %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 463
537
-
-
§ 4. Gratuituxn ministerium ne dencgct parochus
iis qui solvcndo pares non sunt.
Unless otherwise provided by law, the following func-
tions are reserved to the pastor :
(1) To administer solemn Baptism;
(2) To carry the Holy Eucharist publicly to the sick in
his own parish ;
(3) To bring the Holy Eucharist as viaticum either
publicly or privately to the sick, and to anoint them when
in danger of death (with due regard to can. 397, n. 3;
514,848.12:938, §2);
(4) To announce sacred ordinations and the banns of
matrimony ; to assist at marriages and impart the nuptial
blessing;
(5) To hold funeral services according to can. 1216;
(6) To bless the houses on holy Saturday or other
customary days, according to the liturgical books ;
(7) To bless the baptismal font on Holy Saturday, to
hold processions outside the church, to give the solemn
blessing outside the church, unless, in a capitular church,
the chapter performs these functions.
Most appropriately the administration of Baptism holds
first place among parochial rights, it being not only the
initiation into the fold of Christ, but also a sign of a true
parish, according to the ancient view. Solemn Baptism
includes all the ceremonies contained in the Rituale Ro-
manian, whilst private Baptism, when administered by a
priest, comprises only the pouring of water accompanied
by the formula, the anointing with chrism, the handing
over of the white cloth and candle."
Concerning the public or private administration of
BlCfr. Cone, Bait. 11, n. 238 (/. c, p. 73 O; Wipelborst, Compendium
S. LUurgiat, 1915, p. 431.
>ogle
Original from
UNIVERSITY OF WISCONSIN
538 ECCLESIASTICAL PERSONS
Holy Communion to the sick, the rules of the second
Council of Baltimore 8a may safely be followed, for the
custom of publicly bringing them the Holy Eucharist
does not generally prevail in our country. The pastor's
right concerning the Holy Eucharist and Extreme Unc-
tion does not extend to the bishop (can. 397, n. 3), nor
to religious clerics and nuns, if the latter have a confessor
or chaplain (can. 514), and ceases in cases of urgent
necessity (can. 848, § 2 ; 938, § 2). What is understood
by the funeral service is further determined in can. 1216.
The custom of blessing houses on Holy Saturday is, as
far as we are aware, not widespread in our country, ex-
cept perhaps in Italian congregations. In Rome, as I
know from experience, it is greatly favored and some-
times accompanied by much ceremony.
§ 7 mentions the right of blessing the baptismal font on
Holy Saturday. No mention is made of the blessing on
Pentecost Saturday; wherefore the latter is not to be
reckoned among the reserved rights of the pastor. Be-
sides processions " the Code also enumerates blessings "
imparted " with pomp and solemnity outside the church."
Blessings by which the Divine Name is invoked upon
persons and things are various. The rights of the pastor
do not include papal blessings,'0 nor such as are reserved
to the bishop, notably the blessing of abbots and ab-
besses, the consecration of virgins, the blessing of the
holy oils and chrism, of sacred vessels and furniture (un-
less, of course, a special privilege or faculty is obtained),
the blessing of churches, public oratories, and cemeteries.
Some authors00 reserve to the bishop also the solemn
Q
66 Acta et Dtcrtta, n. 264 (/. c, Pope arc: that of the pallium, Ag-
p. 142 t). rms Dei, Golden Rose, and Prince*'
BTCfr.cc. 1290-1x93. Sword; V»n der Stappen, Smcra
B8 Cf . Wapelhorst, /. c, p. 516 ff. Liturgia, 1500, IV, p. 341 f.
69 The blessings proper to the CO Van der Stappen, I. c, p. 347.
oogle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 463 539
blessing of images of our Lord, the B. V. Mary, and the
Saints. However, our canon seems rather to favor the
assumption that the parish-priest can now perform such
solemn blessings, else why should it have added, " with
pomp and solemnity w ? Besides these, the solemn bless-
ing of edifices, bridges, ships, railroads, banners or flags
can also be performed by parish priests, — unless, the
Code adds, these last named blessings (n. 7) are given
by the chapter. Hence cathedral, collegiate or re-
ligious chapters — the Code uses the general terms
chapter and chapter church — are allowed to bless the
baptismal font on Holy Saturday, lead processions, and
give the blessings mentioned. We know that the
venerable chapter of St. Peter's in Rome has repeatedly
crowned images of the Blessed Virgin. The underly-
ing idea no doubt is that if a ceremony is performed by a
whole chapter, it is more impressive and imposing than
when performed by an individual pastor.
Under can. 463 every parish priest is entitled to the
income established by approved custom and legitimate
taxation (can. 1507). If he takes more, he is obliged
to restitution. When parochial functions are per-
formed by another than the parish priest, the latter is
entitled to the fees, unless there is a surplus and it is
evident that the donor intended that surplus for the
priest who performed the function.
Parish priests should never refuse to serve the poor
who cannot pay, free of charge.
This canon regulates the material rights of the parish
priest. According to Holy Writ C1 the ministers of
the altar have the right to live by the altar. The early
Christians fulfilled this duty to their pastors by presenting
offerings (oblationes) at the services. The Didache
•1 Mitt. 10, 10; I Cor. of 13.
>Ic
f~* ^ v .J,., Original fro m
UNIVERSITY OF WISCONSIN
54Q ECCLESIASTICAL PERSONS
(c. 13) directs the faithful to offer to God their first
fruits, while the Didasealia** by applying to the Chris-
tians the injunction of the Book of Numbers (c. 18)
el?
seems to enjoin the paying of tithes.8* Lest the clergy
should lean towards commercialism *4 and thus be dis-
tracted from their more important occupation, the Church,
especially after the establishment of benefices so-called,
demanded that the clergy should receive decent support
from the faithful at large and from the flock entrusted to
them in particular.85 Whether the pastor is entitled to
this support by divine or ecclesiastical right or law, is con-
troverted. However, even those °8 who deny that divine
or natural law dictates the support of pastors, must ac-
cept the yicw of St. Thomas,87 who says: If a stipula-
tion is made between the parish and its pastor to pay him
a pension or interests, this agreement obliges the faithful
in conscience ; besides, if the minister has no other sources
of income and stands in need of decent support, the
parishioners, unless they themselves be destitute of means,
are bound in conscience, by natural and divine law, to
assist him. This was the view taken by the Third Plenary
Council of Baltimore,"8 which says that justice and the
sacerdotal dignity demand that the ministers of the
Church should receive a decent support and decreed that
the bishops should determine the salary of priests at the
synods and that pastors should be content with a less sum
if their people are unable to pay the stipulated salary. It
is evident that the salary of a parish priest is not intended
82 Const. A pott. (ed. Funk, 1906), flfl Barbosa, De Parocho, c. 34, n.
II, a$. 9f. (ed. Lugd., 1663. P- 208);
«• Funk, Manual of Church His- Bouix, De Paroeho, p. 480.
tory, 1913, I, p. 56*. tlSumma Theol, II, II, n. 86, a.
64 Ibid., p. 175. 1.
es Cfr. c 37, C. f», q. •; tit. 5, «■ Acta et Dectcla. n. ayj 0- c.,
X, de praeb.; tit. 15, X, de pecullo p. 156.)
deric. Trid., Sew. m, c. i de ref.
>Ic
Original from
UNIVERSITY OF WISCONSIN
CANON 463 541
to enable him to live in luxury." The present salaries of
most of our priests, we need hardly add, preclude " high
living." Here it may not be amiss to call attention to the
" burning question," recently discussed even in lay maga-
zines,70 of a living wage for the parochial clergy. The
high cost of living alone is reason enough for increasing
the salaries of our parish priests, let alone their exalted
position in society. Most professional men receive at
least double the amount of a priest's salary, although the
latter has to study and prepare himself for a much longer
time than, e. g.f the lawyer or the physician. To increase
the priests' salaries would incidentally heighten popular
esteem for classical studies. Intelligenti panca.
What the canon means by " praestationes" is palpable,
though not precisely stated. According to the Digest
praestatio signifies a payment of what is due.71 In ec-
clesiastical language it is often employed synonymously
with precaria, a kind of prebend or benefice; sometimes
with pension and interest ;" sometimes with contribu-
tions, e.g., cathedraticum. Our Code mentions praesta-
tiones in connection with benefices, which, it says, may
consist of contributions to be paid by families or moral
persons.78 Hence we believe that by the term " praesta-
tiones" the law intends to comprise the whole range of
income, salary and stole-fees, with the sole exception of
manual mass stipends.7* All these sources of income
should be determined by a provincial council or meeting
of the bishops of the province (can. 1507). Ta Hence a
«» Trid., Sess. 34, c. 1, de ref. TS Cfr. can. 1410.
To Cfr. the Catholic Fortnightly 74 Cfr. the Catholic Rtgisttr,
Hrview. (by Arthur Freuw), St Kansas City, Mo., n. 27, 1918, where
Loui«, Mo., Vol. XXIV, No. 18, pp. a judge** decision ia quoted which
274f.; No. 21, p. 321. favors our point
Ti Cfr. 'Dig. 43, 26. 78 Manual mass stipends are such
TS Cfr. Dti Cmnge, * Glosiorium, j. as are received irregularly and un-
V. " Praestatio." certainly, aa it were, U manu ad
"-.
§le
Original fro m
UNIVERSITY OF WISCONSIN
543 ECCLESIASTICAL PERSONS
tax fixed by diocesan synod can no longer be looked
upon as the juridical norm, either of law or conscience,
unless a legitimate custom prevails in the diocese, either
for better or worse.
The above considerations are of importance for under-
standing the next paragraph (§2), which mentions the
obligation of restitution if a parish priest has obtained
more than custom and fixed rates permit him to charge.
Whatever he has acquired by overcharging, must be dis-
tributed for the benefit of pious causes. These, however,
must not be understood to be the pastors themselves, but
other persons or things, e. g., the poor of the parish, the
parish church, if it is needy, or other poor churches,
hospitals, and all kinds of charitable institutions approved
by the Church, poor students aspiring to the priesthood
or the religious state, etc."
§3 governs the disposal of the stole fees received by
a priest who has performed a function reserved to the
pastor, either with or without the latter's permission.
Such a one is not allowed to retain the sum which is fixed
either by taxation or custom ; but he may keep any sur-
plus if it is evident that the donor intended it for the one
who performed the ceremony. The Third Plenary Coun-
cil " merely decreed that the bishops should determine the
stole fees, hence it is a diocesan matter, often regulated
by custom. It must always be understood that the tax
holds good which is in vogue in the diocese of the parish
priest whose rights the other has assumed. Sometimes
the fees for marriage and funeral services, which appear
more stable than the fees for baptism, differ in different
rnanum; to base a salary or in- Vol. 58. p. 74. i« unacceptable,
come upon tuch an uncertain source TS Cfr. Engel, III, a$, a. 11; cfr.
U contrary to common sense and can. 1473.
common parlance, which styles them ~~ Ado et Dtcttto, n. 296 (J. c,
mlmt. The statement in Bed. Rev., p. 16B).
>Ic
Original from
UNIVERSITY OF WISCONSIN
a
N
CANON 464 543
dioceses. It is ordinarily understood that a " stipendium
pingue," given to one who is not the pastor, was intended
for personal service and may, therefore, be kept after
the customary fee has been handed over to the parish
priest. Contrary diocesan statutes may now be disre-
garded, since the Code is the general law.
Concerning § 4 the Third Council of Baltimore estab-
lished that priests should remember that ecclesiastical
services should be given gratis to the poor and that this
law should be re-inforced at diocesan synods.78
duties of pastors
Can. 464
§ 1. Parochus ex officio tenetur curam anirnarum
exercere in omnes suos paroecianos, qui non sint legi-
time exempti.
§ 2. Potest Episcopus iusta et gravi de causa reli-
giosas familias et pias domes, quae in paroeciae terri-
torio sint et a iure non exemptae, a parochi cura sub-
ducere.
The pastor is, by virtue of his office, obliged to exercise
the care of souls towards all his parishioners who are
not legitimately exempt. The bishop may, for just and
weighty reasons, withdraw from the care of the pastor
religious communities and pious houses located within
the territory of the parish, even though they are not " ex-
empt."
The " care of souls " comprises the spiritual direction
of the faithful to the end for which the Church is estab-
lished, t. e.j the salvation of souls. The particular duties
78 Acta ct Decrtta, n. 296 (/. cj). women or for sick calls, which are
Incidentally we mar mention that no parochial rights, does not bc-
thc ice or donation for churching lonf to the pastor exclusively.
Gi , Original from
008IL UNIVERSITY QFWI5C0NSIN
544 ECCLESIASTICAL PERSONS
of pastors are pointed out in the following canons.
From this care some are exempt ipso iure, others may be
withdrawn by the positive will of the bishop. The for-
mer are the so-called exempt religious, of whom more will
be said later. The bishop may grant quasi-exemptiort
from parochial rights and care to religious families and
pious houses, if there are just and weighty reasons for
so doing. This power is a reminder of past times, when
the bishop was considered the parish priest of the whole
diocese. The ruling of the Code is not entirely new,
for the semi-public oratories of brotherhoods and sister-
hoods have long enjoyed certain privileges which cur-
tailed the pastor's rights. However, in these general
terms the principle laid down in § 2 of our canon is of
rather recent date. After the division of dioceses into
parishes, the bishop was no longer considered the
parochus of the whole diocese, but only of the cathe-
dral.1" Hence the Code binds the bishop to "just and
weighty reasons " for withdrawing anyone from the care
of the pastor. Such a reason would be the merits of a
religious community and their distinguished work for the
common welfare, peace and tranquillity from vexations
coming from the parish priest, suspicion or undue inter-
ference by the pastor with the internal and domestic af-
fairs of the community, etc. The parish priest may ap-
peal to the Holy See, but he has no right to demand rea-
sons from the bishop, who is not responsible to the
pastor. Finally, we may add that the fact that the canon
names the bishop, not the Ordinary, appears to exclude
vicars-general or vicars-capitular from granting this ex-
emption.
T» Btrbota, Dt Parocho, c i, n. si f. (p. 5).
, ,|,, Original from
UNIVERSITY OF WISCONSIN
>gle
CANON 465
545
OBLIGATION OF RESIDENCE
-
Can. 465
§ 1. Parochus obligatione tenetur residendi in domo
paroeciali prope suam ecclesiam; loci tamen Ordina-
rius potest iusta de causa permittere ut alibi commo-
retur, dummodo domus ab ecclesia paroeciali non ita
distet ut paroecialium perfunctio munerum aliquid
inde dctriraenti capiat.
§ 2. Eidem abesse permittitur per duos ad summum
intra annum menses sive continuos sive intermissos,
nisi gravis causa, iudicio ipsius Ordinarii, vel diutur-
niorem absentiam requirat vel breviorem tantum per-
mittat.
§ 3. Dies quibus parochus piis exercitiis vacat ad
norm am can. 126, non computantur, semel in anno, in
duobus vacationum mensibus, de quibus in § 2.
§ 4. Sive continuum sive intermissum sit vacatio-
num tempus, cum absentia ultra hebdomadam est du-
ratura, parochus, praeter legitimam causam, habere
debet Ordinarii scriptam licentiam et vicarium substi-
tutum sui loco relinquere ab eodem Ordinario proban-
dum ; quod si parochus sit religiosus, indigct praeterea
consensu Superioris et substitutus turn ab Ordinario
turn a Superiore probari debet.
§ 5. Si parochus rcpentina et gravi de causa disce-
dere atque ultra hebdomadam cogatur abesse, quam-
primum per litteras Ordinarium commoncfaciat, ei in-
dicans causam disccssus ct sacerdotcm supplentcm,
eiusque stet mandatis.
§ 6. Etiam pro tempore brevioris absentiae paro-
chus debet fidelium necessitatibus providere, maxime
si id peculiaria rerum adiuncta postulent.
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
54^
ECCLESIASTICAL PERSONS
The pastor is obliged to reside in a parish house near
his church. However, the Ordinary of the diocese may,
for a just reason, allow him to live elsewhere, provided
only his home is not so far away from the parish church
that the performance of his parochial obligations would
suffer thereby.
The pastor may take a two months' vacation, either
continuous or interrupted, every year, provided there be
no grave cause which, in the judgment of the Ordinary
would require either a prolongation or shortening of this
term.
The days of the yearly retreat (can. 126) are not in-
cluded in the two months' vacation.
A pastor on vacation or absent from home for more
than one full week, must have a legitimate excuse and
the Ordinary's permission in writing, and, besides, pro-
vide a substitute to be approved by the Ordinary; if
the parish priest is a religious, he needs also the permis-
sion of his superior, and his substitute must be accepted
by both the Ordinary and the superior.
Should a parish priest, for a grave reason, be suddenly
called away and compelled to be absent from home for
more than a week, he must inform his Ordinary as soon
as possible in writing, stating the reason for his leave and
the name of his substitute, and abide by the Ordinary's
commands.
Even during a shorter absence the pastor must provide
for the wants of the faithful, especially if peculiar cir-
cumstances require it.
Little need be added to what has been said above con-
cerning the residence of bishops. The present canon is
nothing else but the embodiment of the Tridentine de-
crees80 and of current practice, with some mitigation.
80 Sett. 6, c. a, de ref. : cfr. Seas. 33. c. 1 de ref.; cfr. tit. *.
X de clericis non rewd.
od by GoOgle
Original from
UM1VERSITY OF Vi-'ISCONSI
CANON 465
547
The personal character of a pastor's duties requires his
personal presence in his parish. Hence the presbytery
should be near the parish church, and the pastor should
reside therein during the day as well as by night. If a
priest has a parish, say, two, three or four miles from the
town where his parents live, he would, e. g., not be allowed
to stay in the city, either at night or during the day, much
less all the time, although he might have an assistant or
substitute.81 One who has a parish situated in a swampy
place, where he is exposed to gout and rheumatism, is
nevertheless bound to reside there, but he may ask the
bishop for a longer vacation.81' Smallpox, or the yellow
fever, or any other epidemic may be raging in his parish,
yet the parish priest must remain at his post, although he
may employ another priest to administer the Sacraments
to the stricken.88 Neither age, nor ill health, nor the
small number of families excuses the pastor from resi-
dence.8* The decisions of the S. Congregation are firm
and uniform in this regard. A pastor (shepherd) should
prove himself worthy of his name, and not be a mer-
cenary."
§ 4 provides that a pastor needs the permission of his
Ordinary (to be given in ivriting and gratis)*0 if he ab-
sents himself from his parish for over a week, even for
the time of the vacation granted by law. In this there
is a difference between bishops (or canons) and par-
ish priests. Besides, pastors must have a " legitimate
reason" for being away from their parish on Sundays or
holydays of obligation. A legitimate reason would cer-
tainly be attending the sickbed or funeral of a relative,
81 S. C.C., May loth, 1687 (Rich-
ter, Trid., p. 38, n. 11).
aa Richtcr, /. c, a. 12; n. u-
S3 Ibid., n. 13.
84 Ibid., n. 15, n. 17.
86 Trid., Sess. 23, c. 1 de ref.
M Trid., Sew. 23, c. 1 de ref.
od by GoOgle
Original from
UNIVERSITY OF V/ISCONSI
548
ECCLESIASTICAL PERSONS
friend, or colleague, some installation or festivity, Forty
Hours' devotion, or a call from the superior or the civil
authorities, and any act of charity. As the bishop is to
judge of the legitimacy of the reason," it must be re-
vealed to him.8* Concerning the substitute, note that it
is not sufficient simply to state that a substitute has been
provided, but information must be furnished regarding
his identity. It is evident that the parish priest must
choose a substitute who has the necessary " faculties," or
else obtain them for him from the bishop. As a rule it
is safest to engage a priest or religious of the same dio-
cese as a substitute. Should the bishop for some reason
•withhold the faculties from the substitute, the pastor
must provide another, because the bishop is not obliged
to grant faculties to a stranger. But neither is the sub-
stitute, especially if he be an exempt religious, obliged to
undergo an examination before receiving temporary fac-
ulties. Hence prudence would dictate that the bishop
should not demand too much in this regard.
The Code, as we said, mitigates the law of residence to
some extent, especially concerning absence for less than
a week, for which it requires neither a formal permission
nor excuse. Formerly, according to some authors and
a Roman synod held in 1725, an absence lasting more
than two days required the Ordinary's permission.80
The Code is silent concerning such a brief absence, and
hence we may infer that it is not the lawgiver's intention
to permit Ordinaries to set up a stricter rule, unless, of
course, in particular cases, where grievous neglect of
•7 Engd, III, 4. n- u. de clericis
non reiidentibua.
89 Therefore an oath of the pas-
tor that the reason is sufficient
would not have to be accepted by
the bishop. Cfr. Bouix, De Paro*
chof p. 534 f.
89 Cfr. Bouix, /. c, p. 55a.
gle
Original from
UNIVERSITY OF WISCONSIN
CANON 466 549
pastoral duties might result.00 Therefore § 5 obliges the
pastor to provide for the spiritual needs of his flock dur-
ing his absence. By the way, and in order to complete
the matter, it may be added that under the Council of
Trent and our Code the bishop may not give leave of
absence lasting longer than the time allowed for vacation
to a parish priest except for the sake of study.91
The residence of a pastor is sometimes styled " labori-
osa" which means that it is no dolce far niente, but a life
of constant labor, which demands that the pastor perform
the parochial functions and duties himself and not by
means of assistants. Of course what he is not able,
physically or morally, to do himself, he may commit to
his assistants, unless the law expressly forbids such com-
mission or delegation.92
application of the mass pro populo
Can. 466
§ 1. Applicandae Missae pro populo obligatione te-
netur parochus ad norrnam can. 339, quasi-parochus ad
normam can. 306.
§ a, Parochus qui plures forte paroecias aeque prin-
cipaliter unitas regat aut, praeter propriam paroeciam,
aliam vel alias in administrationem habeat, unam tan-
turn debet Missam pro populis sibi commissis diebus
praescriptis applicare.
§ 3. Ordinarius loci iusta de causa perrnittere
potest ut parochus Missam pro populo alia die applicet
ab ea qua iure adstringitur.
§ 4. Parochus Missam pro populo applicandam ce-
00 Concerning the pcnaltiei 03 S. C. C, Oct 7, 1604 (Richtcr,
against non-resident clergymen, cfr, Trid., p. 39, n . 19 £. Bouix, \. c.,
cc. J168--S173, 4381. p. 358 f.),
• 1 Enael, III, 4 o. XX.
jle
Original from
UNIVERSITY OF WISCONSIN
550 ECCLESIASTICAL PERSONS
lcbrct in ecclesia paroeciali, nisi rerum adiuncta Mis-
sam alibi celebrandam cxigant aut suadcant.
§ 5. Legitime absens parochus potest Missam pro
populo applicare vel ipse per se in loco in quo degit, vel
per sacerdotem qui eius vices gerat in paxoecia.
A parish priest is obliged to apply the Holy Mass for
his people, the same as a bishop (can. 339) ; a quasi-
pastor, according to the rules laid down in can. 306.
A pastor who governs two parishes united aeque prin-
cipaltier, or one as his own and the other as adminis-
trator, is obliged to apply but one Mass for the people.
The Ordinary of the diocese may for a just reason
grant permission to a parish priest to apply the Mass for
the people on another than the prescribed day.
A pastor should say the Mass for the people in the
parish church, unless circumstances require him to say it
elsewhere.
A pastor who is legitimately absent from home may
either himself apply the Mass for the people at his actual
abode, or have it said by his substitute.
The obligation of offering the Holy Sacrifice of the
Mass for the people is based upon a divine law,98 but the
number of Masses to be applied has been established by
ecclesiastical regulation. This obligation is incumbent
on the pastor himself, if no legitimate reason excuses
him, or, in other words, it is a personal obligation.04 Of
course, any legitimate cause (e.g., sickness, some other
personal duty, application of the Mass for his parents in
die depositionis or anniversarii, or for a public cause)
95 Trid., Sesi. 2a, de obser. etc.; /. c, p. 588 f.; but the S. C. admitted
S. C. C, Aug. 30, 1698. (Richter, a legitimate in una, Ruremond, Feb.
Trid., p. i;«.|. n. 32.); cf. what was a?, 1848, Bouix, /. e. The maw
said under can. 339. may be either low or cantata;
04 Cfr. the decisions of the S. Bouix, /. c, p. 590.
C. C. in Richter, I. c, n. 36; Bouix,
.'le
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 466 551
would justify him in having the Mass for the people said
by another.
§ 2 of this enactment is based on the practice followed
by the S. C. Concilii."
As to § 4 and § 5 it may be said that canonists were
somewhat more rigorous because of some decisions *■
which seemed to demand the celebration of the Mass for
the people in the parish church. However, our Code
does not insist upon this but leaves a wider margin. By
employing the general term adiuncta, the lawgiver leaves
it to the prudent judgment of the pastor whether these
circumstances are or are not verified. Such circum-
stances would be the use of a winter chapel or school
house, the repairing of a parish church, personal infirmity
of the pastor, the convenience of the people, etc.
Note must be taken of the decree of the S. C. Con-
sistorialis April 25, 19 18, that the faculties granted to
bishops are abrogated with regard to the present canon.
Hence Ordinaries are not allowed to make any change
as to this enactment. But we submit our humble judg-
ment with regard to parish priests on account of what
has been said under canon 451. If our parish priests
are not pastors (parocki) in the strict sense, who is
obliged to offer Mass for the people? The bishops them-
selves would have to apply for as many parishes as there
are in each diocese.*6*
Attention must also be drawn to decisions of the S.
Rit. C, July 8, 1910, and May 27, 1911, The Missa
pro populo, also on the feasts suppressed, must be that
of the current day, and no missa de requie pro die
obitus may be said nor that of a feast transferred on a
05 Cfr. Richtcr, /. c, p. 135, nn. col, ore the viewi proposed in the
37-39. Record, of Louisville, Ky., June ao
»o Bouuc, Dt Poncho, p. 591. and July 25, 1918.
o«« Untenable, becuuto unjuridi-
^1,* Original from
UNIVERSITY OF WISCONSIN
>gle
552 ECCLESIASTICAL PERSONS
Sunday, if there is but one mass said in the parochial
church.
Finally, can. 824, § 2 defines that a priest binating is
not allowed to accept a stipend for either mass if he is
obliged ex iustitia to apply one mass pro populo (ex-
cept Christmas) ; but for the second mass he may accept
some compensation ex Htulo extrinseco. Thus we be-
lieve that a priest may say, e. g., a mass for the purga-
torial society of the diocesan clergy (if the statutes do
not bind him ex iustitia), or for the Holy Name Society,
or the Holy Rosary Confraternity, if he does not receive
a stipend properly so called for such a mass. A donation
for the trouble would be a compensation ex titulo ex-
trinseco, i. e.f not intrinsically connected with the mass
or the obligation arising ex iustitia.
particular duties
Can. 467
§ 1. Debet parochus officia divina celebrare, admi-
nistrare Sacramenta fidelibus, quoties legitime petant,
suas oves cognoscere et errant.es prudenter corrigere,
pauperes ac miseros paterna caritate complecti, maxi-
mam curam adhibere in catholica puerorum institu-
tione.
§2. Monendi sunt fideles ut frequenter, ubi com-
mode id fieri possit, ad suas paroeciales ecclesias acce-
dant ibique divinis officiis intersint et verbum Dei au-
diant.
The pastor is obliged to celebrate the divine services,
to administer the Sacraments to the faithful as often as
they legitimately demand them, to know his sheep and
prudently to correct the erring, to bestow his paternal
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 467 553
care upon the poor and wretched, and to employ the great-
est diligence in instructing the children in the Catholic re-
ligion.
The faithful should be admonished that, whenever
convenient, they should attend divine worship and hear
the word of God in their parish church.
By " divina officio, " the Code no doubt means primarily
the celebration of Holy Mass, and secondarily those other
devotions which are, as it were, ramifications of the cen-
tral act of worship. How often the pastor is obliged
to say Mass on week-days is not stated in the Code. Un-
less there is a law of foundation, a custom, a diocesan
rule, legacy or stipend, no juridical obligation of saying
Mass daily can be imposed.9' However, on account of
frequent communion, it will be difficult now-a-days for a
pastor who has no assistant to limit the celebration of
the Mass to certain days.
Of the obligation of administering the Sacraments and
the rules to be observed in this connection more will be
said in the Third Book.98
That the pastor should know his sheep is Gospel teach-
ing re-echoed by the Council of Trent."
§ 2 of our canon imposes on the faithful the moral
obligation of attending their parish churches. It cannot
be denied that the parish organism has been somewhat
weakened in the last century. Thus among the parochial
functions we do not even read of the paschal communion,
although the people are admonished to receive it in their
own church.1 This is certainly a change from ancient
views if we remember that the proposition u that the
•i Cfr. Benedict XIV, Inst. Eccl. iof iaf.; TfUL, Sew. «3. c. 1. de
Just., 56, n. 6 (cd. Prati, 1844, p. ref.; on preaching and catechiam,
J49). ice cc 1327 A-
01 Cfr. ee. 853 fi\; 901 ff.; 940 ff- l Can. 859, I 3: Suodendum, etc.
01 Cfr. John, 10, 14; ai, 15 ft.;
oogl
e
Original fro ni
UNIVERSITY OF WISCONSIN
554 ECCLESIASTICAL PERSONS
faithful were not bound to receive Holy Communion on
Easter in their proper churches " was at one time branded
as " falsa, scandalosa et temeraria." a
care of the sick and charitable works
Can. 468
■
§ i. Sedula cur a et effusa caritate debet p a roc h us
aegrotos in sua paroecia, maxime vero mot ti proximos,
adiuvare, eos sollicite Sacramentis reficiendo eorumque
animas Deo commendando.
§ a. Parocho alii ve sacerdoti qui infirmis assistat,
facultas est eis concedendi benedictionem apostolicam
cum indulgentia plenaria in articulo mortis, secundum
formam a probatis liturgicis libris traditam, quam be-
redictionem impertiri ne omittat.
Can. 469
Parochus diligenter advigilet ne quid contra fidem
ac mores in sua paroecia, praesertim in scholis publicis
et privatis, tradatur, et opera caritatis, fidei ac pie-
tatis foveat aut instituat.
■
The parish priest should assist the sick of his parish,
especially the dying, with diligent care and great charity,
by administering the Sacraments and commending them
to God.
c
The pastor or any other priest assisting the sick has
the faculty to grant, and should not omit to impart, the
s Benedict XIV, /><■ Syn., IX, 16, should see to it that no abuses are
5. On account of can. 464, | a, tolerated; can. 467, I 2, is evidence
there is danger that exempt com- enough that the lawgiver wishes to
munities at times draw lay peo- see all the faithful in the pariah
pie to their chapels; but these com- churches.
munities as well aj the bishop
od by GoOgle
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 469 555
Apostolic blessing with the plenary indulgence in articulo
mortis, according to the formula contained in the ap-
proved liturgical books.
The current manuals of pastoral theology may be con-
sulted concerning this point. We merely note that the
faculty mentioned is given by the very fact that the
patient is in a dangerous state which will probably result
in death; hence no special communication of this faculty
is needed.
Can. 469 directs the pastor to watch that nothing
against faith or morals is taught in his parish, especially
in the schools, and admonishes him to foster or establish
works of charity, faith, and piety.
Note that when the pastor is called upon to watch, it is
as watchman, not as index in catisis fidci, which office is
reserved to the bishops wherever the Holy Office cannot
immediately exercise supervision.8 Hence the pastors
must report to the bishop. Concerning our so-called pub-
lic schools, no direct interference by the pastor is possible
or intended. Yet he may draw the attention of the
school board to facts which he has learned from pupils
or their parents. In America pastors are entitled to act
as free citizens, and no doubt in many localities uni-
formity of action on the part of the clergy would result in
the prevention of much harm on the part of biassed pub-
lic-school teachers.
As to works of charity, -faith, and piety the pastor
shall use prudence and energy in fostering the same.
What is suitable in one parish is not always suitable in
another. Charity would dictate the fostering of St. Vin-
cent de Paul conferences or similar institutions, and
aid to hospitals and orphanages. The faith is promoted
■ H. Office, Mar >5» >90i {Anna!. Led., 1902, p. 9).
G 1 Original from
OOglL UNIVERSITY 0FWI5C0NSIN
556 ECCLESIASTICAL PERSONS
by apologetic lectures and a staunch and wholesome
Catholic press. Piety is aided by devotions approved by
the Church. Scd ne quid nsmts, not too many new-
fangled practices !
parish books and archives
Can. 470
§ 1. Habeat parochus libros paroeciales, idest li-
brum baptizatorum, confirmatorum, matrimoniorum,
defunctorum ; etiam librum de statu animarum accu-
rate conficere pro viribus curet; et omnes hos libros,
secundum usum ab Ecclesia probatum vel a proprio
Ordinario praescriptum, conscribat ac diligenter as-
servet.
§ 2. In libro baptizatorum adnotetur quoque si
baptizatus confirmationem receperit, matrimonium
contraxerit, salvo praescripto can. 1107, aut sacrum
subdiaconatus ordinern susceperit, vel professionem
sollemnem emiserit, eaeque adnotationes in documenta
accepti baptisrnatis semper referantur.
§ 3. In fine cuiuslibet anni parochus authenticum
exemplar librorum paroccialium ad Curiam episcopa-
lem transmittal excepto libro de statu animarum.
§ 4. Paroeciali utatur sigillo habcatque tabulariurn,
seu archivurn, in quo memorati libri custodiantur una
cum Episcoporum epistolis, aliisque documentis, ne-
cessitatis vel utilitatis causa servandis ; quae omnia, ab
Ordinario vel eius delegato visitationis vel alio oppor-
tune tempore inspicienda, religiose caveat ne ad extra-
■
neorum manus perveniant
a
c
o
Every pastor shall keep parish books, especially a rec-
ord of baptisms, confirmations, marriages, and deaths,
p
§le
% , I,., " riginal from
UNIVERSITY OF WISCONSIN
o
CANON 470 557
and take an accurate census of his parishioners. All
these records must be kept according to the customary
ecclesiastical rules, or as prescribed by the Ordinary, and
carefully preserved.
The baptismal book should also contain notice as to
whether and when the person baptized has received con-
firmation, was married, received subdeaconship, or made
solemn vows. All these details should be embodied in
the baptismal certificate, if asked for.
At the end of each year the pastor shall send a copy
of all the parish books, except the status animarum, to
the episcopal court.
The pastor should have a parish seal and archives in
which said books, together with episcopal letters and
other necessary or useful documents may be safely kept.
Seal and archives are to be inspected by the Ordinary or
his delegate at the diocesan visitation or at some other
convenient time. The pastor shall take conscientious
care that these documents do not get into strange hands.
The new law is certainly careful that the official docu-
ments be properly written and kept, and any one who has
had to deal with documents in an official capacity (for
instance, as defensor tnnculi), will hail the solicitude of
the lawgiver in this matter. It may perhaps be tedi-
ous, until good habits are contracted, but the fruits will
prove priceless.
The most complicated parochial book is the baptismal
record, which should contain four extra rubrics or sepa-
rate columns, — one for confirmation, one for matrimony,
one for subdeaconship, and one for solemn profession.
Why the latter two are mentioned is evident from the
fact that they are impedimenta dirimentia and have other
juridical consequences. That these documents should, as
v ,|,, Original from
UNIVERSITY OF WISCONSIN
>gk
558 ECCLESIASTICAL PERSONS
§ 4 prescribes, be conscientiously kept from profane eyes
is very necessary. For official documents of a private
character are not intended for those not entitled to know
their contents. This secrecy should also be observed to-
wards domestics and other persons wont to frequent the
parish house.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
CHAPTER X
ASSISTANT PRIESTS (VICARS)
The English term "assistant priests" for the Latin
vicarii paroeciales is perhaps too narrow, inasmuch it
includes only one species, viz., those who help disabled
or occupied pastors; whilst one whole class of vicars
would be excluded, namely, those who are actual par-
ish priests in time of vacancy or who take the place
of a habitual pastor. In some countries, e.g., Bavaria
and Austria, pastors have cooperatores and coadiutores,
or chaplains, as they are sometimes called. We may
retain the term assistant priests because of its common
use. The different classes may easily be distinguished
by circumlocution.
VICARS PROPER
Can. 471
§ 1. Si paroecia pleno iure fuerit unita domui reli-
giosae, ecclesiae capitulari vel alii personae morali,
debet constitui vicarius, qui actuaiem curam gerat ani-
marum, assignata eidem congrua fructuurn portione,
arbitrio Episcopi.
§2. Excepto casu turn legitimi privilegii aut con-
suetudinis, turn dotationis vicariae ab Episcopo factae,
reservata sibi libera nominatione, vicarium praesentat
Superior religiosus, Capitulum aliave persona moralis;
loci autem Ordinarius eundem, si idoncum, servato
praescripto can. 459, repererit, instituat
559
oogle
Original from
UNIVERSITY OF Vi-'ISCONSI
560 ECCLESIASTICAL PERSONS
§ 3. Vicarius si sit religiosus, est amovibilis sicut
parochus religiosus de quo in can. 454, § 5 ; ceteri omnes
vicarii ex parte praesentantis sunt perpetui, sed ab Or-
dinario possunt, ad instar parochorum, removed, mo-
nito eo qui praesentavit.
§ 4. Ad vicarium exclusive pertinet tota animarum
cura cum omnibus parochorum iuribus et obligationi-
bus ad normam iuris communis et secundum probata
statuta dtoecesana vel laudabiles consuetudines.
A parish which is pleno iure united to a religious com-
munity, a chapter church, or another moral person, must
have a vicar, who has the actual care of souls, and a
decent support should be assigned to him according to the
judgment of the bishop.
Save in the case of a legitimate privilege or custom,
or an endowment made by the bishop, who may have
reserved the designation of a vicar, the right of designat-
ing the vicar belongs to the religious superior or chapter
or moral person ; but if found fit according to Can. 457,
the Ordinary of the diocese shall grant him the in-
vestiture.
The assistant, if he be a religious, is removable like the
pastor (can. 454, § 5) ; while all other vicars are perpet-
ual as far as the presenting party is concerned, but may
be removed like parish priests by the bishop, after hav-
ing informed the one who presented the vicar.
To the vicar exclusively belongs the care of souls with
all the parochial rights and obligations according to the
common law of the Church and approved diocesan stat-
utes or praiseworthy custom.
This whole canon treats of vicars in the proper sense,
vis., such who enjoy the full rights of pastors. They are
actual parish priests, whilst the habitual pastorship re-
sides with a juridical person, whose rights consist chiefly
>Ie
£ * -» v J„ Original fro m
UNIVERSITY OF WISCONSIN
CANON 471 56i
in presenting a vicar and receiving the revenues which
remain after subtracting the expenses necessary for the
decent support of the vicar.
§ 1 speaks of parishes incorporated in a juridic person
pleno iure, i. e., as to temporal and spiritual matters,
which union, as stated above, can be enacted only by the
Apostolic See. If a monastery has a parish not fully
united, it cannot appoint a vicar from among its own
members, if the nature of the order or religious institute
does not permit that its members be vicars in perpetuum.*
A chapter can appoint one of its own members (canons)
as pastor, but he needs the approval of the bishop, or his
investiture. After his investiture the vicar has the full
care of souls, and, as § 4 states, all the rights and du-
ties of a pastor. Besides, he is entitled to decent sup-
port. The salary must be determined by the bishop. It
is useless to say that the Constitution of Pius V, "Ad
exequendam" (May 1, 1567) cannot be followed verb-
ally. (This Constitution demanded at least 50 scudi,
and not more than 100 scudi, or $100.) The underlying
principle still holds good, viz., that those who bear the
burden should enjoy the benefits, and that the support of
a pastor should be certain, not an uncertain amount from
stole fees or similar sources, but a determined sum.3
Benedict XIV by his Constitution " Cum semper oblatas"
Aug. 19, 1744, which was immediately intended for Italy
but contains guiding principles for the whole world, gave
the bishops full power to determine the "congrua."*
This is followed by the new Code. Hence the bishop
shall establish what we call the salary of vicars, or as-
sistant priests, not including in it uncertain revenues
l Cf. Trid., Sew. 7. c. 7 de ref. Lei trior. I. 28 n. 14 (Vol. i, a»8).
Richter, TrU., p. 53, n. xa. 8 Bull. Bened. XIV, ed. Prati,
8 Cf. Richter, Trid., p. 54; S.v.ri- 1845, t. I, p. s?5-
.'le
( * -» ^ iL» Original from
UNIVERSITY OF WISCONSIN
562 ECCLESIASTICAL PERSONS
(stole fees, collections, etc.). It is, of course, imma-
tenal whence the salary is taken, whether from pew rent,
collections, or other resources, provided only it is stable
and sufficient for decent support.
§ 2 establishes the right of presentation and investiture
or institutio. The former is inherent in the juridical per-
son to whom the parish is pleno iure united- However,
there may be other persons competent to present the
vicar ; thus by reason of a legitimate privilege, or custom,
or donation made by the bishop, the latter may reserve to
himself the right of presentation. For endowment, prop-
erly made, creates the ius pair onatus, of which the Code
treats in the Third Book. With these exceptions the
right of presentation remains in the moral person.
Presentation does not confer the titulus or actual right
of administering the parish. This is given by investiture,
and must be done upon examination or concursus, if the
latter is customary in the province, according to canon
459. Should the examination prove the candidate pre-
sented to be unfit, those who have the right of presenta-
tion must offer another. But if the one presented is
found fit, the bishop is obliged to invest him, otherwise he
would infringe upon the rights of a third person. This
investiture is no mere installation, but confers the ius in
re, or actual possession, in our language, the conferring
of faculties. As soon as the vicar is invested, the whole
care of souls (§4) devolves upon him; neither have the
members of the chapter or monastery the right of med-
dling with his administration.*
§ 3 describes the manner of removing a vicar. If the
vicar is a religious, he may be removed as stated in can.
454, § 5, t. e., by the bishop or his superior. Religious, as
4S.CC. June 2, 1731, " No] I ius Montis Cassini" (Richter, Trid.,
P. 53* n. 14).
p
>gle
Original from
UNIVERSITY OF WISCONSIN
CANON 472
563
-■
we shall see in the treatise on religious, are capable of
administering parishes, but only as temporary, not as per-
petual vicars.8 If the vicar is taken from the secular
clergy, he is perpetual, i. e., neither the chapter or moral
person nor the bishop can remove him at will; but the
bishop must proceed in the manner required for the re-
moval of parish priests. The bishop is also obliged to
inform the juridical person of the removal. Wherefore
the trial prescribed in the Fourth Book must be instituted
in cases of removal.6
VICARS AD INTERIM
Can. 472.
Vacante paroecia :
i.° Orel inarms loci in ea quamprimum constituat
idoneum vicarium oeconomum, de consensu Supcrioris,
si de religioso agatur, qui cam tempore vacation's re-
gat, assignata eidem parte fructuum pro congrua su-
stentatione ;
a.° Ante oeconomi constitutionem, paroeciae re-
gimen, nisi aliter provisum fuerit, assumat interim
vicarius cooperator; si plures vicarii sint, primus; si
omnes aequales, munere antiquior; si vicarii desint,
parochus vicinior; si tandem agatur de paroecia reli-
gions concredita, dornus Superior ; loci autem Ordina-
rius in Synodo vel extra Synodum tempestive deter-
rr.inet quaenam paroecia cuique paroeciae vicinior
habenda sit;
3.0 Qui paroeciae regimen ad normam n. 2 assump-
sit, debet loci Ordinarium de paroeciae vacatione statim
certiorem facere.
• Cfr. Rlehter, Trid., n. 15. P. $3. Wenu, Jus. Dte., II, p- io$8 (ed.
oCfr. c 3, X, I, a3; c. un. 6*. 1); cf. cc. JU7 ff.
HI, it; Ada S. S., XH, a84f.;
►ogle
Original from
UNIVERSITY OF WISCONSI
564 ECCLESIASTICAL PERSONS
St
If a parish becomes vacant, (1) the Ordinary of the
diocese shall, as soon as possible, appoint a fit oeconomus
or administrator, (with the consent of the religious su-
perior if the administrator is to be a religious), who shall
govern the parish during the vacancy and receive part of
the income for his support. (2) Before the administra-
tor is appointed, unless otherwise provided, the assistant
shall rule the parish, and if there are several assistant
priests, the first in rank, or if all are equal in rank, the
senior assistant shall assume the office of pastor ad in-
terim. If there are no assistant priests, the nearest parish
priest shall assume the same office ; in parishes entrusted
to religious the superior of the house shall act in the same
capacity. The Ordinary of the diocese shall in due time,
either at or outside the synod, determine which is to be
considered the nearest parish. (3) Whoever has as-
sumed the ad interim administration of a parish, must
inform the Ordinary of the diocese of the vacancy.
The Council of Trent ordained that a vicaritis be ap-
pointed by the bishop as soon as the latter receives notice
of the vacancy of a parish.7 The term oeconomus also 8
occurs in connection with the vacancy of episcopal sees.
Oeconomus here means a vicar or administrator, who
shall take charge of the parish until a new pastor is
legitimately appointed and has taken possession. Until
this oeconomus is appointed, the assistant priest shall
" run " the parish. Then the Code sets forth various
eventualities which may occur in larger parishes. Where
there is no assistant, the neighboring priest should take
care of the widowed parish ad interim. The text speaks
of the parochus tncinior and says he should be deter-
mined by the bishop. The parochus vicinior is the one
<
T Srts. ?4, c. 18, de ref. 8 Smi. a«, c. 16, de ref.
oogle
/""* -» -. iL-. Original from
UNIVERSITY OF WISCONSIN
CANON 473 565
whose parish church is in a direct line the next from the
vacant parish church.0 However, although the direct
line may be shorter between parish church A (vacant)
and parish church B, yet it may be that the pastor of
parish C has better communications with A, on account of
superior railroad or automobile or road facilities. There-
fore it is left to the judgment of the bishop to decide who
is the nearer pastor.
The time during which the ad interim assistant or
neighboring priest shall have charge of the vacant parish
is not stated. The Council of Trent urged speedy pro-
vision (statim) by means of a vicar and then, after ten
days, public announcement10 of the examination. But
since the Code does not determine the time, the Ordinary
should proceed at once to the appointment of a temporary
vicar, and hold the examination (orf if prescribed, the
concursus), so that the vacancy may not last too long,
to the detriment of the vacant church.
Can. 473
§ 1. Vicarius oeconomus iisdem iuribus gaudet
iisdemquc officiis adstringitur, ac parochus, in iis quae
animarum curam spectant; nihil tamen ipsi agere in
paroecia licet, quod praciudicium aflerre possit iuribus
parochi aut beneficii paroecialis.
§ 2. Oeconomus novo parocho vel oeconomo succes-
sori coram vicario foraneo vel alio sacerdote ab Ordi-
nario designato tradat clavem archivi et inventarium
librorum ac documentorurn aliarumque rerum quae ad
paroeciam pertinent, et rationem reddat accepti et ex-
pensi tempore administrationis.
©Cf. Benedict XIV. Dt Sy*. n. x, xx, n. 36 (Vol. I, p. 135)
Dion., U, ix 16; Saati-Leitner, I, 10 Sets. 24, c. 18 de rex".
>Ie
Original fro m
UNIVERSITY OF WISCONSIN
566 ECCLESIASTICAL PERSONS
St
The temporary administrator enjoys the same rights
and is subject to the same obligations as the parish priest
in whatever pertains to the care of souls ; but he is not
allowed to do anything that might prove prejudicial to
the rights of the pastor or parish.
The administrator shall hand over the key of the
archives to the new pastor, or a new administrator, in
presence of the rural dean or a priest appointed by the
Ordinary, as also the inventory of the books and docu-
ments and other things pertaining to the parish, and
render an account of the receipts and expenses during his
administration.
The juridical position of the administrator is here de-
fined in general : He is pastor with all the rights and
obligations ll attendant upon the care of souls, but he does
not hold the parish in his own name (in titulum), and
must therefore abstain from asserting rights proper to
the parish priest. For instance, if a religious institute or
a charitable institution or school is under the care of the
pastor, the administrator should not surrender any right
to the chaplain of that institute, unless otherwise stipu-
lated. Neither should he assume obligations which may
prove burdensome to the new parish priest, for instance
in hearing confessions or preaching beyond what the law
and previous observance require. Prejudicial to the
parish would be contracting debts or alienating prop-
erty or changing boundary lines. The administrator may
improve the material condition of the parish, e. g., by
getting a cheaper rate of interest on money borrowed,
by repairing the buildings if it should prove necessary or
an unforeseen accident calls for repairs, etc.
11 Hence he i» bound to the application of the miss* pro fopulo,
to residence, etc.
§le
k ,| , Original from
UNIVERSITY OF WISCONSIN
CANON 474
567
temporary substitutes
Can. 474
Vicarius substitutus qui constituitur ad normam
CMB. 465» §§ 4» 5 ct can. 1923, § 2, locum parochi tenet
in omnibus quae ad curam animarum spectant, nisi
Ordinarius loci vel parochus aliquid exceperint
The substitute who takes the place of an absent pastor
or of one who has been deprived of his parish and ap-
pealed to Rome (can. 1923, §2) has charge of whatever
pertains to the care of souls, unless the Ordinary of the
diocese or the parish priest have made exceptions.
Absence has been considered supra, can. 465. The
substitute who is assigned for the spiritual welfare of the
flock, should not interfere with the material administra-
tion unless absolute necessity requires. Besides, he must
follow the reasonable instructions of the absent pastor.
We emphasize reasonable, because it sometimes happens
that an absent priest lays down regulations (for in-
stance, with regard to visiting families or institutes,
services, etc) which can hardly be styled reasonable.
The parish priest may except assistance at marriages,
unless his absence should last too long, in which case the
substitute would have to apply to the Ordinary. The
latter, too, may make exceptions when approving the sub-
stitute. But unless formally stated and clearly set forth
in writing, the Ordinary is not supposed to have made
exceptions. If these touch the hearing of confessions, as-
sistance at marriages, etc., they must be strictly complied
with by the substitute. Preaching, too, might be ex-
cepted, for reasons which the bishop is not bound to prove
or state.1'
12 The " Congrua " or decent sup-
port of the substitute rosy be set-
tled between the absent putor and
Googl
e
the substitute. C. C, March 15,
I7i8, (Ricbtcr, Trid., p. 38, n. 18)
Original fro m
UNIVERSITY OF WISCONSIN
-
568 ECCLESIASTICAL PERSONS
Canons 475 sq. treat of what are properly called as-
sistant priests. The first mentions such as are given to
priests who for some reason are unable to perform their
duties and are styled coadiutores ; the other speaks of
cooperatores, %. e., helpers given to overburdened pastors.
If a pastor, by reason of age, mental debility, inex-
perience, blindness, or any other permanent cause, be-
comes incapable of discharging his duties properly, the
Ordinary of the diocese should give him a coadjutor (pre-
sented by the religious superior if the parish belongs to
religious) to take his place and to receive the necessary
ioi >gle
T.
full
tioi
te
assistants proper
Can. 475
§ 1. Si parochus ob senectutem, mentis vitium, im- d
peritiam, caecitatem aliamve pcrmanentcm causam suis t
muniis rite obeundis impar evaserit, Ordinarius loci
det vicarium adiutorem, praesentatum a Superiore, si
de paroccia agatur religiosis concredita, qui suppleat
eius vicem, assignata eidem congrua fructuum por-
tione, nisi aliter provisum sit.
§ 2. Adiutori, si in omnibus suppleat parochi vicem,
iura omnia et officia competunt parochorum propria,
excepta Missae applicatione pro populo quae parochum
gravat; si vero suppleat ex parte dumtaxat, eius iura
et obligationes desumantur ex litteris deputationis.
§ 3. Si parochus sit sui compos, adiutor operam suam
praestare debet sub eiusdem auctoritate secundum Or-
dinarii litteras.
§ 4. Quod si per vicarium adiutorem bono animarum
provideri nequeat, locus est parochi amotioni ad nor-
mam can. 2147-2161.
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 475
569
support from the revenues, unless provided otherwise.
To this coadjutor, if he takes the pastor's place to the
full extent, belong all the rights and obligations incum-
bent on parish priests, with the exception of the applica-
tion of the Mass pro populo; but if he takes the pastor's
place only in part, his rights and obligations must be de-
termined by his letter of appointment.
If the pastor is of sound mind, the coadjutor must dis-
charge his office under authority of the pastor, according
to the faculties given by the Ordinary.
If the welfare of souls cannot be properly taken
care of by a coadjutor, the pastor may be removed, ac-
cording to cc. 2 1 47-2161.
According to the very humane adage, several times re-
peated in the old law,18 " Affticto afflictio non est ad-
denda" the Code provides a coadjutor for a priest who
is in any way incapable of properly performing his pas-
toral duties.
The first reason is old age, which with some comes
sooner, with others later, but nearly always entails un-
pleasant consequences, weakened eyesight, hard hearing,
etc. A definite age-limit is difficult to draw. The De-
cretals, when speaking of old age as a reason for resigna-
tion, define it as debility proceeding from age and en-
tailing some weakness which renders a priest incapable of
discharging the pastoral office.1* Seventy is considered
in law as the age of senes or old men.16 Practically, age
must be measured by physical frailty rather than by a
certain number of years.
The mental debility next mentioned in our canon is a
18 Ctr. c a, C. 7, q. ai (Greg.
M.); c. 5, X, III. 6, de clerico
tegrotante.
14 c. 10, X, I. 9.
15 Rciffcnetucl, II, 6, n. 8 ff.
>gle
Original from
UNIVERSITY OF WI5CON5I
570 ECCLESIASTICAL PERSONS
habitual tritium mentis. Insanity, therefore, even in its
milder forms, certainly falls under this category.
Imperitia is inexperience. The Latin word refers to
practical rather than speculative science; wherefore it
does not, primarily, imply ignorance, such as was men-
tioned side by side with inexperience in the decree
"Maxima cura," Aug. 20, 1910, from which our text is
apparently taken. Inexperience here means rudeness,
imprudence, etc., in the confessional, or on the pulpit, or
in dealing with the people"
Blindness (caecitas) differs from weak eyesight or half
blindness (caecutiens) , which do not entirely destroy the
faculty of sight. All these bodily ailments are supposed
to be incurable or permanent.
These four and similar reasons (e. g., deafness or some
other permanent disability, especially when of an incur-
able nature) justify the bishop in giving an assistant to
the afflicted pastor. In case the parish is in charge of re-
ligious, the assistant must be presented by the religious
superior. Here we draw attention to the fact that even
a religious is entitled to the benefits of the law, though
not, of course, to the detriment of the parish.
The powers or faculties of the assistant are described
in §§2 and 3. Their extent must be gauged partly by
the condition of the pastor, partly by the letters of ap-
pointment or credentials. No general rule can be estab-
lished. The assistant is entitled to the congrua, as per
§ 1. This may, especially in poor parishes, cause some
trouble. The assistant would have to be paid from the
salary of the pastor ; this would perhaps mean privation
for the sufferer, who, in case of sickness, would need
more than his salary. On the other hand, a poor parish
<
16 Trid., Sew. ti. c 6, speaks of "UliUrati et imptriti." but illiterate
prie<u are no loorf.r found.
>Ie
£ * ^ •. -J,-. Original fro m
UNIVERSITY OF WISCONSIN
CANON 476
571
can ill afford to pay two priests. Hence an infirm priests'
fund should be established in every diocese. Some kind
of an insurance or pension fund would also help in this
direction. If money can be raised by non-Catholic sects
for pensioning their ministers, we do not see why this
should be impossible among Catholics.
The last paragraph mentions removal. If the welfare
of souls cannot be procured by an assistant, the bishop
must proceed to remove the pastor, according to cc,
2147 ff. For the welfare of souls is the supreme law.
coadjutors
Can. 476
§ 1, Si parochus propter populi multitudinem alias ve
causas nequeat, iudicio Ordinarii, solus convenientem
curam gerere paroeciae, eiciem detur unus vel plurea
vicarii cooperatores, quibus congrua remuneratio assi-
gnetur.
§ 2. Vicarii cooperatores constitui possum sive pro
universa paroecia, sive pro determinata paroeciae parte.
§ 3. Non ad parochum, scd ad loci Ordinarium, au-
dita parocho, competit ius nominandi vicarios coopera-
tores e clero saeculari.
§ 4. Vicarios cooperatores religiosos Superior cui id
ex constitutionibus competit, audito parocho, praesen-
tat Ordinario, cuius est eosdem approbare.
§ 5. Vicarius cooperator obligatione tenetur in pa-
roecia residendi secundum statuta dioecesana vel lau-
dabiles consuetudines aut Episcopi praescriptum ; imo
prudenter curet Ordinarius, ad normam can. 134, ut in
eadem paroeciali domo commoretur.
§ 6. Eius iur a et obligations ex statutis dioecesa-
nis, ex litteris Ordinarii et ex ipsius parochi commis-
Gw >gle
Original from
UNIVERSITY OF WISCONSIN
572 ECCLESIASTICAL PERSONS
sione desurnantur; sed, nisi aliud expresse caveatur,
ipse debet ratione officii parochi vicem supplere euzn-
que adiuvare in universo paroeciali ministerio, excepta
applicatione Missae pro populo.
§ 7. Subest parocho, qui cum paterne instruat ac
dirigat in cura animarum, ei invigilet et saltern quot-
annis ad Ordinarium de eodem referat.
§ 8. Si nee per vicarios cooperatores spirituali fide-
lium bono consuli rite qucat, Episcopus provideat ad
normam can. 1427.
If, on account of the large number of people in a par-
ish, or for other reasons, the pastor, in the judgment of
the Ordinary, is unable to take proper care of the parish,
he should be given one or more cooperatores or assistants,
to whom a sufficient salary should be assigned.
Such assistants may be appointed either for the whole
parish at large or for a particular part thereof.
Not to the pastor, but to the Ordinary of the diocese,
upon having heard the pastor, belongs the right to nomi-
nate assistants from among the secular clergy.
Assistants belonging to a religious order must be pre-
sented by the competent superior, upon having heard the
pastor, to the Ordinary for his approval.
The assistant is obliged to reside in the parish, ac-
cording to the diocesan statutes, or praiseworthy custom,
or the episcopal injunction. The Ordinary should see
to it, according to can. 130, that the assistants dwell in
the parish house.
Their rights anij obligations must be determined from
the diocesan statutes, the letters of the Ordinary, and the
instructions of the pastor; however, unless the contrary
is expressly stated, they take the place of the pastor in
virtue of their office and must assist him in the entire
Q
ans
u
•all'
jte
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 476
573
■
-
ministry of the parish, except only in the application of
the Mass for the people.
The assistant is subject to the pastor, who should pater-
nally instruct and advise him in the care of souls, watch
over him, and at least once a year report to the Ordinary
about him.
If the spiritual welfare of the faithful cannot be pro-
cured by means of assistants, the Ordinary should pro-
ceed according to can. 1427.
The Council of Trent enjoined the bishops to compel
pastors whose parishes were so large that one priest alone
could not administer the Sacraments or perform the
divine service, to take unto themselves co-laborers."
Our canon mentions the same reason, but adds, " aliasve
causas." Some " other reasons " might be distance or
increased pastoral work, for instance, in the parish
schools or hospitals, increased f requentation of the Sacra-
ments, such as is very perceptible now-a-days in many
parishes of this country. The assistant may then be ap-
pointed either for the parish at large, or for some portion
thereof, which latter would be the case if there were a
chapel or oratory for the convenience of the more distant
parishioners. Even where there is no chapel or oratory,
it might be that the assistant would have to attend a
group of parishioners speaking a different language
(German, Italian, Polish, etc.).
§ 3 and § 4 speak of the appointment. According to
the Council of Trent 18 the designation of an assistant
was left in the hands of the pastor, who, however, could
be compelled to take an assistant. Various provincial
councils gave to the bishops the power to appoint assist-
ants." Therefore it may be said that our canon em-
17 Seas. 31, c. 4 de ref.
*» Cone. Quebec, de ricariis;
Cone. Flib. Thurl. de coadjutoribus;
ef. Coll. Lac., III. 657, 700.
gle
Original fro m
UNIVERSITY OF WISCONSIN
574 ECCLESIASTICAL PERSONS
St
bodies the common law arising from a practice otherwise
established. Something of the old rights of parish
priests remains, for the bishop is obliged to ask the opin-
ion of the pastor concerning the necessity of appointing
an assistant. But if the Ordinary is convinced of the
necessity, he may appoint an assistant even against the
will of the pastor.80
If the parish belongs to a religious community, the
assistant to be appointed must be presented by the com-
petent superior. This competency, as said above, is de-
termined by the constitutions of the respective com-
munity. But in the case of religious, too, the pastor
should be heard as to the necessity, not the person, of the
assistant. The bishop in giving his approval also imparts
the necessary powers.
These powers are determined (§6) by the diocesan
statutes, the credentials of the Ordinary, and the commis-
sion of the pastor. Note the descending scale. First
and above all the diocesan statutes " should regulate the
juridical position of the assistants. After that the let-
ters of deputation sent by the bishop must be inspected,
because it may be that these either extend or restrict the
rights given by the diocesan statutes, which the bishop
can do at random, he being the sole legislator of the
diocesan laws. Besides, it may be that the bishop has in
the meantime received more ample faculties, which he is
willing to communicate. As to the commission of the
pastor, it must be noticed that he is not allowed to limit
or curtail the rights of his assistants, as granted by the
diocesan statutes or the letters of the bishop, unless these
letters contain a restriction in favor of the pastor. The
20 ci can. :■-■- mice uniformity, a plenary council
it It would not be out of place if( would establish some rules to that
in order to girt authority and pro- effect.
>Ie
k ,|y. Original from
UNIVERSITY OF WISCONSIN
CANON 476
575
parish priest is allowed to set up his own regulations, but
they must not clash with the common law, the episcopal
credentials, or the diocesan statutes.
§ 5 enjoins residence and dwelling in the same parish
house, which is generally observed in the U. S. Some
holidays are to be granted to assistants.
A very remarkable passage is that which says that the
assistant, by virtue of his office, takes the place of the pas-
tor. This means that no subdelegation in the proper
sense is needed, for " by virtue of his office " signifies
that by his very appointment the assistant can do what
the pastor is empowered to do, unless the latter excepts
something especially.
§ 7 speaks of the relation between Pastor and assistant.
It may not be amiss here to add what the Second Pro-
vincial Council of Quebec (a. d. 1854) enacted concern-
ing this point : " The assistants shall diligently endeavor
to act in uniformity with the pastor, for too great dis-
crepancy in the practice of the sacred ministry might
turn to destruction rather than edification. Besides, they
shall most carefully avoid whatever in words or deeds
might belittle the pastor, but in all things conduct them-
selves modestly, and diligently further the welfare of the
people." «
We may sum up the relation between pastor and as-
sistant as follows :
(a) Appointment is made by the Ordinary upon hav-
ing heard the pastor ;
(b) The assistant is bound to residence, because he
must aid the pastor;
(c) According to can. 460, the pastor is the one admin-
»i Coll. Ltc., m, 657,
;Ic
Original fro m
UNIVERSITY OF WISCONSIN
576 ECCLESIASTICAL PERSONS
istrator of the parish, because of the unity desired by the
Church in the government of the parish ;
(d) If the pastor, or the letters of appointment, or
the diocesan statutes except nothing, the assistant is
ratione officii supposed to possess all the powers of the
pastor, assistance at marriages not excluded (can. 1096,
§1), especially during the absence of the pastor;
(e) The application of the missa pro populo is incum-
bent on the pastor only.
The last paragraph provides for the division or dis-
memberment of a parish, if effective parish work cannot
be secured even by means of assistants (can. 1427).
P
REMOVAL
Can. 477
§ z. Vicarii paroeciales de quibus in can. 472-476,
si religiosi sint, amoveri possum ad normam can. 454,
§ 5; secus ad nutum Episcopi vel Vicarii Capitular is,
non a u tern Vicarii Generalis sine rnandato speciali.
§ 2. Quod si vicaria sit beneficialis, vicarius coope-
rator removeri potest processu ad normam Juris, non
solum ob causas propter quas alii parochi removeri pos-
sunt, sed etiam si graviter subiectioni defecerit paro-
cho debitae in exercitio suarum functionum.
• i
B
■
The vicars spoken of in can. 472-476, if they are reli-
gious, may be removed according to can. 454, § 5 ; if secu-
lar priests, they may be removed by the bishop or the
vicar-capitular, but not by the vicar-general, unless he has
a special mandate.
If a benefice is attached to the vicar's office, the co-
operator may be removed, upon trial conducted accord-
ing to law, for reasons which admit the removal of a
jle
f* ^ 1 +\r* Original from
UNIVERSITY OF WISCONSIN
CANON 478 577
parish priest, but also for any grievous insubordination
shown to the parish priest in the exercise of the ministry.
Removal was spoken of in can. 454, concerning reli-
gious. A secular assistant may be removed at the good
pleasure of the bishop or the vicar-capitular (adminis-
trator) during a vacancy. But the vicar-general needs a
special mandate for that purpose. Of course, by removal
is not meant dismissal from the diocese ; for such a pen-
alty cannot be inflicted without due process, as will be
seen in the penal Code. Even assistants must be treated
according to the law.
§ 2 considers the case of an ecclesiastical benefice being
attached to the office of an assistant This is the case
in many dioceses of Europe, especially in countries where
Church and State are closely connected. To such bene-
fices is often attached the iuspatronatus, either laicalis or
ecclesiastic us, and a removal is not so easily carried out
Besides, the objective perpetuity of the benefice seems to
constitute a title to permanency. Note, however, that
the term cooperator is here expressly used, not coad-
iutor; wherefore a cooperator is of a more stable char-
acter. To remove a cooperator, then, requires a trial,
but the reasons need be less weighty than those for the
removal of a pastor.
precedence of assistants
Can. 478
§ 1. Sicut parochus ecclesiae cathedralis, ita vica-
rius paroecialis Capituli cathedralis praecedit omnibus
aliis dioecesis parochis aut vicariis ; oeconomi vero ius
praeccdentiae regitur normis in can. 106 statutis.
§ 2. Vicarii substituti et adiutores praecedunt, durn
§le
£ " ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
578 ECCLESIASTICAL PERSONS
in munere manent, vicariis cooperatoribus ; hi aliis sa-
cerdotibus ecclesiae paroeciali addictis.
As the cathedral pastor, so the assistant of the cathe-
dral parish enjoys precedence over all other pastors and
assistants of the diocese ; the precedence of the oecono-
mus is governed by the general rules laid down in can.
106.
Substitutes and assistants (adiutores) take precedence
over cooperatores, and these in turn over all other priests
attached to the parish church.
The first paragraph may surprise the one or other mas-
ter of ceremonies in the U. S. For, if we mistake not,
the assistants of cathedral churches had to give way to
pastors. The Code seems to reverse the order. Yet we
believe that the reversal is only apparent. For it must
be remembered that the Code speaks of cathedral chap-
ters made up of canons, one of whom is parish priest,
and another, perhaps, assistant, if the assistant is not
taken from the beneficiaries belonging to the chapter.
This state of affairs is quite different from that obtain-
ing in our country, and hence we believe, until a final
decision is made by the Apostolic See or a Plenary Coun-
cil, the old practice must be followed; i.e., the parish
priests take precedence over all assistants, even those of
the cathedral.
The oeconomus mentioned in § 1 is the one spoken of
in can. 432, who has temporal care of the diocese during
its vacancy. However, we would not exclude the
oeconomus of a vacant parish. To this class must be ap-
plied the general rules of precedence (can. 106).
That the substitutes and coadjutors of pastors should
take precedence over the assistants proper may be deduced
from the law of representation; they represent pastors,
jle
Y .J,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 478
579
who are in possession of precedence, whilst the assist-
ants, as such, do not represent pastors. This law of
representation must also be applied to religious who are
substitutes of pastors, because the canon makes no dis-
tinction. But the general rules laid down in can. 106
must be followed here.
>Ie
Original from
UNIVERSITY OF WISCONSIN
■
pi
CHAPTER XI
RECTORS OF CHURCHES
Wc said above that, besides the baptismal churches,
other oratories were sometimes erected, especially by
landlords for their families and dependents, which, how-
ever, were not distinguished by a baptismal font. Chap-
ter XI treats of a class of churches which seem to be a
relic of such public oratories without parochial rights.
Can. 479
§ i. Nomine rectorum ecclesiarum hie veniunt sa-
cerdotes, quibus cura demandatur alicuius ecclesiae,
quae nee paroecialis sit nee capitularis, nee adnexa do-
mui communitatis religiosae, quae in eadem officia ce-
lebret
§ 2. De cappellano religiosarum, sodalium virorum
religionis laicalis, confraternitatis vel alius legitimae
associations, serventur particularium canonum prat-
scripta.
Can. 480
§ 1. Ecclesiarum recto res lib ere nominantur ab Or-
dinario loci, salvo iure eligendi aut praesentandi, si cui
legitime competat; quo in casu Ordinarii est rector em
approbate,
§ 2. Licet ecclesia pcrtineat ad aliquam religionem
exemptam, rector tamen a Superiore nominatus debet
ab Ordinario loci approbari.
580
Go< >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 480 581
§3. Si ccclcsia coniuncta sit cum Seminario aliovc
collegio quod a clericis regitur, Superior Seminarii vel
collegii est simul ecclesiae rector, nisi aliter loci Or-
dinarius constituent.
Rectors of churches are priests who take care of a
church which is neither a parish nor a capitular church,
nor entrusted to a religious community.
As to chaplains of nuns and lay religious, confraterni-
ties or sodalities, the special rules concerning them must
be observed.
To our knowledge there are not many such chapels of
ease, as they might be styled, in our country. For the
church whose holder is here called rector, is not one of the
usual parochial places of worship and sacred ministry
(see can. 481), but usually a beneficiary church, such
as there are in the old country, with the character of
public oratories.
The rectors of such churches, according to can. 480,
are freely named by the Ordinary of the diocese or ap-
proved by him, if the right of election or presentation
can be lawfully claimed by some one else.
If such churches belong to an exempt order, the rector
named by the religious superior must be approved by the
Ordinary of the diocese.
If such a church is united with a seminary, or college
ruled by the clergy, the superior of this seminary or col-
lege is at the same time rector of the church, unless the
Ordinary of the diocese has determined otherwise.
Approbation here means nothing else than the ratifica-
tion of the rectors presented. The bishop is not entitled
to subject them to an examination, because the care of
souls, properly so-called, is not attached to such churches.
However, if faculties for hearing confession are de-
jle
v ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
582 ECCLESIASTICAL PERSONS
a
manded or granted, the bishop may have the rector ex-
amined. That the hearing of confessions is not for-
bidden in such churches appears, at least negatively, from
the following canons.
N
■
Can. 481
In ecclesia sibi commissa rector functiones paroe-
cialcs peragere nequit
Can. 482
Ecclesiae rector potest divina officia etiam gollemnia
ibidem celebrare, salvis legitimis f undationis legibus et
dummodo non noceant ministerio paroeciali ; in dubio
autem utrum huiusmodi detrimentum contingat, necne,
Ordinarii loci est rem dirimere et opportunas norma*
praescribere ad illud e vitandum.
In such churches the rector is not allowed to exercise
parochial functions ; but he may hold solemn divine serv-
ices, unless the laws of foundation, or detriment to the
parochial ministry, should prevent ; however, where there
is doubt of such a damage befalling a parish, the Ordi-
nary of the diocese should settle the question and make
provisions to avoid it.
'■-.
Can. 483
Si ecclesia, Ordinarii loci iudicio, ita a paroeciali di-
stet ut paroeciani non sine gravi incommode* possint
paroecialcm ecclesiam adire ibique divinis officiis inter-
■
esse:
i.° Loci Ordinarius, gravibus quoque statutis poc-
nis, potest rectori praecipere ut horis populo commo-
dioribus olicia celebret, fidelibus dies festos ac ieiunia
G Original from
UOglt UNIVERSITY OF WISCONSIN
CANON 484
583
dcnuntiet ct catcchcticam instructioncm ct Evangclii
cxplicationem tradat;
a.0 Parochus potest ex eadem sanctissimum Sacra-
mentum, inibi ad normam can. 1265 forte asservatum,
pro infirmia desumere.
If, in the Ordinary's judgment, the church is so far dis-
tant from the parish church that the parishioners can
frequent the parish church only with great inconvenience,
then (1) the Ordinary can, under threat of heavy penal-
ties, command the rector to hold services at hours more
convenient for the people, to announce holydays and fast
days, give catechetical instructions and explain the gos-
pel; (2) the pastor can take the Blessed Sacrament, if
preserved there according to can. 1265, and administer it
to the sick.
§ 1 gives the bishop a power which was formerly
looked upon as exclusively reserved to the Apostolic Sec.1
Of course we suppose that the rector's church is held as
a benefice. The bishop is now entitled to compel such
rectors to assume nova oner a spiritnalia, which by virtue
of their office they are not obliged to perform. How-
ever, this is for the benefit of the faithful. But a ma-
terial reward would not be out of place and ought to be
mentioned in the text. We repeat what we stated above,
that if he has the necessary faculties, a rector is allowed
to hear confessions in his church. For, on the one hand,
hearing confessions is not a strictly parochial right or
rather duty, and, on the other, a rector is entitled to dis-
tribute holy, even paschal, communion.
Can. 484
§ r. Sine rectoris vel alius legitimi Superioris li-
lCfr. t 1, 1a, lib. Ill Dfcret; THS., Sew. 25, c. 5. dc rcf., HI.
ia, n. 6; Atchner, * 79> 4. C.
oogle
Original from
UNIVERSITY OF WISCONSIN
584 ECCLESIASTICAL PERSONS
centia saltern praesumpta, nemini licet in ecclesia Mis-
sam celebrare, Sacramenta ministrare aliasve functio-
nes sacras peragere; haec vero licentia dari vel negari
debet ad normam iuris.
§ 2. Quod attinet ad condones in ecclesia habendas,
serventur praescripta can. 1337-1342.
Without the at least presumptive permission of the
rector or other legitimate superior, no one is allowed to
say Mass in such a church, or administer the Sacraments,
or perform other sacred functions. The permission must
be granted or denied according to the law.
Concerning the preaching in such churches, the rules
laid down in cc. 1337-1342 are to be observed.
As presumption is a reasonable conjecture from facts
likely to happen, a presumed license is based upon a nat-
ural conjecture that it would not be withheld if asked for.
For saying Mass, a " celebret n should always be de-
manded, unless the priest is known ; concerning other
functions, the laws laid down for the administration of
the Sacraments must be followed.
£ Can. 485
Rector ecclesiae. sub auctoritate Ordinarii loci ser-
vatisque legitimis statutis ac quaesitis iuribus, debet
curare seu advigilare ut divina officia ad sacrorum ca-
nonum praescripta ordinate in ecclesia celebrentur,
onera fideliter adimpleantur, bona rite administrentur,
sacrae supellectilis atque aedium sacrarum conserva-
tion! et decori prospiciatur, et ne quidpiam fiat quod
sanctitati loci ac reverentiae domo Dei debitae quoquo
modo repugnet
-
<
The rector of the church must, under the authority of
oogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 486 585
the Ordinary of the diocese, and with due regard to the
lawful statutes and the acquired rights of others, see to
it that the divine services are properly carried out, ac-
cording to the prescriptions of the sacred canons, that all
obligations are faithfully complied with, that the prop-
erty is duly administered, that the sacred furniture and
the buildings are properly and neatly kept, and that noth-
ing is done which might be repugnant to the sanctity of
the place or to the reverence due to the house of God.
The statutes here mentioned are such rules as the
founder of the church may have laid down. Now-a-days
all such rules need the approval of the Ordinary. The
iura quacsita are rights acquired by the family of the
founder or other persons benefitted by the church. These
must always be respected and are to be considered
first if a conflict (see can. 482) should arise.
Can. 486
---
Rectorem ecclesiae, etsi ab aliis clectum aut prae-
sentatum, Ordinarius loci removere ad nutum potest ex
qualibet iusta causa; quod si rector fuerit religiosus,
servetur, circa eius remotionem, praescriptum can. 454,
§5.
The Ordinary of the diocese may, at will and for any
just cause, remove a rector, although elected or presented
by others ; if he is a religious, can. 454, § 5 must be ob-
served in his removal.
After reading this last chapter of the first part of the
Code, our so-called rectors will want to change their title
into that of pastors. That they are pastors in the canon-
ical sense of the word can no longer be doubted. How
else should we classify them? They are neither "vi-
< *r\r*nl*> Original from
jr^OOglL UNIVERSITY OF WISCONSIN
586 ECCLESIASTICAL PERSONS
cars " of the bishop nor " rectors," but pastores anima-
tion, pastors of souls, who hold their parishes in their
own name.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
APPENDIX
EPISCOPAL FACULTIES
This volume was already in type when the S. C. Con-
sistorialis issued an important decree, which we reprint
here in exrtenso, adding a few observations.
■
" Proxima sacra Pentecostes die, novo ecclesiasticarum legum
Codice vim obtinente, omnes Iocorum Ordinarii facultatibus qnam
pluribus ipso iure instruentur, quas antea ab Apostolica Sede
postulare solebant et communibus indultis assequebantur. Suf-
ficit enim consulere canonem 349 collatum cum 239 circa plura
privilegia personalia, quibus Episcopi augentur, canonem 386
circa electionem examinatorum et iudicum synodalium, 468 et
914 circa benedictionem papalcm in articulo tnorHs et in
maioribus anni solemnitatibus, 534 et 1532 circa alienationes, 806
circa sacri iterationem, 822 circa Missae celebrationem extra
ecclesiam et oratorium, 1006 circa ordinationes extra tempora,
1043 et 1045 circa dispensationes ab impedimentis matrimoniali-
bus, 1245 circa dispensationes ab abstinentia et ieiunio, 1304
circa benedictionem sacrorum utensilium, quin de multis aliis
hie mentio fiat, ut illico appareat Episcopos, vi Codicis, tanta
munitos esse potcstate ut, qnoties Ecclesiae utilitas et animarum
salus id requirat, communis legis rigorem temperare et iustas
dispensationes largiri aeque opportuncquc valeant.
Quapropter indulta quae hucusque, posudantibus Ordinariis,
ad hunc finem concedebantur, quaeque vel in Brevi dicto 25
annorum, vel in formulis typis impressis ad decennium, ad
quinquennium aut etiam ad triennium valituris continentur,
supervacanea evadere videntur; quin imo confusionem haud
levem ingerere, co quod a novis Canonici Iuris ordinationibus in
pluribus discrepant.
Hisce itaque de causis, necnon ad discrimina in canonica disci-
plina tollenda maioremque unitatem in Ecclesia inducendam,
Ssmus D. N. Benedictus Pp. XV, de consulto peculiaris coetug
Emorum Patrura Cardinalium, hoc S. C Consistorialis decreto
ea quae sequuntur statuit et sanxit:
1) exceptia locis S. Congregation! dc Propaganda Fide subiec-
s87
oogle
Original from
UNIVERSITY OF WISCONSIN
588 ECCLESIASTICAL PERSONS
tis, pro quibus suo tempore quae opportuna erunt decernentur,
alibi, in universis scilicet dioecesibus iuri communi obnoxiis,
facilitates omncs pro foro externo Ordinariis concessae, quacque
in Formulis et Brevi superius recensitis continentur, a die 18
maii huius anni cessabunt, neque amplius in usu esse poterunt ;
2) in locis tamen rerootioribus aliisque ad quae, sive praesentis
belli causa, sive alia qualibet ratione, praesentis decreti notitia
utili tempore non pervencrit, dispensationes et ordinationes vi
veterum facultatum ab Ordinariis forte concessas Ssriius Domi-
nus ratas habct, firmo tamen ut ipsi ab acccptae notitiae die,
si res adhuc sit integra, huic decreto se conforment;
3) facultates pro foro interno a S. Poenitcntiaria datae,
aliaeque ratione praesentis belli concessae, aut peculiaribus de
causis ab Ordinariis obtentae, sub huius decreti dispositione non
comprehenduntur, et ideo abolitae non sunt;
4) circa dispensationes matrimonialcs, quamvis vi canonum
1043-1045 Ordinarii opportunas dispensationes largiri queant
"urgent* mortis periculo" et " quotics impedimetitum detegatur
cum iam omnia sint parata ad nuptias, nee matrimonium sine
probabili gravis maii periculo difFerri possit," nihilominus Ssrhus
Dominusr attentis temporum et locorum adiunctis, haec ulterius
indulgenda decrevit:
a) ut locorum Ordinarii in America, in Insulis Philippines, in
Tndiis Orientalibus, in Africa extra Mediterranei maris oras, et
in Russia, per quinquennium a die 18 maii huius anni, dispensare
valeant ab impedimentis minoris gradus quae recensentur in
can. 1042, servatis regulis in eo Codicis capite statutis: itemque
ut matrimonia milliter contracta, ob aliquod eiusdem minoris
gradus impedimentum, in radicc sanarc queant, iuxta rcgulas in
capite XI, tit VII, lib. Ill Codicis de convalidatione matrimonii
positas, monita parte impediment conscia de sanationis effectu;
b) ut iidem locorum Ordinarii dispensare paritcr per quin-
quennium valeant ab impedimentis maioris gradus, sive publicis
sive occultis, etiam multiplicibus, iuris tamen ecclesiastici (ex-
ceptis impedimentis provenientibus ex sacro presbyteratus ordine
et ex afHnitatc in linea recta consummate matrimonio), nee non
ab impedirnento impediente mixtae religionis, si petitio dispen-
sationis ad S. Sedem missa sit et urgens necessitas dispensandi
supervenerit, pendente recursu. Concedcndo tamen hisce in
casibus dispensationes, Ordinarius prae oculis semper habcat
regulas statutas in Codice, lib. Ill, tit VII, cap. 2, 3 et 4, circa
jle
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
APPENDIX
589
N
■
impedimenta in genere et in specie, itemque clausulas apponi
solitas in matrimoniis cum hebraeis et mahumetanis; nee dis-
pensationem concedat nisi caverit de plena carum omnium ob-
servantia iuxta sacrorum canonum praescriptiones, et iuribus
S. Congregations de disciplina Sacramentorum circa taxarum
soltitioncm consulat;
e) ut Ordinarii Galliae, trium regnorum Magnae Britanniae,
Germaniae, Austriae et Poloniae, durante bello. nuoties aditus
ad S. Sedem difficilis aut impossibilis saltern per mensem prae-
videatur, iisdem facultatibus uti possint, quae supra sub litteris
a et b recensentur.
Praesenlibus valituiis de mandate Ssmi cuntrariis quibuslibet
minime obstantibus.
Datum Romae, ex Secretaria S. C. Consistorialis, die 35
aprilis 1918.
►£. C. Cardinalis De Lai, Ep. Satiinen., Secretarius.
L. ^ S.
tV. Sardi, Archiep. Caesarien., Adsessor.
This decree establishes that
(1) All the faculties pro joro externa granted to the Ordi-
naries of all dioceses subject to the general hierarchy of the
Church shall cease May 18, 1918, whereas the faculties granted
to the Ordinaries of the territories subject to the S. C Prop.
Fide shall remain in force;
(2) In those countries which, by reason of the war or for
another cause, do not receive timely notice of this decree, all
the dispensations and ordinances issued in virtue of former
faculties shall be valid and licit until notice is duly received;
(3) The special faculties granted by the S. Penitentiary are
not touched by the present decree;
(4) Concerning matrimonial dispensations, some of which
have reference to can. 1043-1045, the following rules are to be
observed :
(a) The Ordinaries of America, of the Philippine Islands, of
the East Indies, of Africa, with the exception of the Mediter-
ranean coast, and of Russia, from May 18, 1918, enjoy the fac-
ulty of dispensing from all minor impediments, as enumerated
in can. 1042: consanguinity in the third degree of the collateral
line, affinity in the second degree of the collateral line, public
honesty in the second degree, spiritual relationship, crime arising
from adultery with a promise of marriage or an attempt at
GoogI
Original from
UNIVERSITY OF WISCONSIN
59<> ECCLESIASTICAL PERSONS
marriage before a civil magistrate. The Ordinaries may also
heal (sanatio in radice) marriages contracted invalidly on ac-
count of the said five minor impediments. This faculty lasts
for five years from May 19, 1918.
(b) The Ordinaries of the countries mentioned, for five years,
from May 18, 1918, enjoy the faculty of dispensing from all im-
pediments, either public or secret, also multiplied, provided they
are iuris ecclesiastici and do not concern the priesthood or
affinity in the direct line, consummate matrimonii), of dispensing
from the impediment of mixed religion, provided a petition has
been sent to Rome and an urgent necessity of dispensing exists.
But the provisions of the new Code in Book III, tit. VII, chapL
a, 3 and 4 must be strictly complied with. For further explana-
tion we must refer to the Code and our comments on Book III,
which, Deo volente, we shall soon have ready.
A rapid glance at the faculties * thus granted to the Ordinaries
of our country results in the following comparison.
Form I
1. Extra tempora et interstitia is useless because granted by
Can. 1006 and Can. 978, § 2.
2. Concerning irregularities the Ordinaries may no longer dis-
pense, except in such as are secret and not brought before the
episcopal court at least by summons, can. 99a
3. From the age required for ordination no dispensation is
allowed, according to can. 975.
4. The only reserved vows arc those of perfect and perpetual
chastity and that of entering religion (can. 1309), from which
the Ordinary may not dispense; all others are not reserved
(can. 1313)-
5. Simony in ecclesiastical offices, benefices, and dignities (can.
2392) is simpliciter rescrvata to the Holy See, and the Ordinary
can no longer absolve therefrom, unless he has received a gen-
eral faculty (can. 2253, § 3) I but the faculties pro foro intemo
given by the S. Penitentiary remain.
6-10. About matrimonial dispensations sec the decrees above,
3, a and b.
11. Touches the Privilegium Paulinum (can. 1120-1127), con-
cerning which, for reasons that may prompt another answer
1 We follow the text as printed in Sabetti'i Tkeol. Moral., 1917, p. 1082 f.
ogle
t * -» ^ iL» Original from
UNIVERSITY OF WISCONSIN
APPENDIX
591
from the Apostolic See, we do not wish to prejudice opinions,
though wc think the faculties have ceased.
12, Holy oils are to be blessed only on Holy Thursday (can.
734, § 0. but the first part of the faculty, concerning the num-
ber of priests, probably remains.
13. Concerning the blessing of sacred vestments and the recon-
ciliation of churches, see can. 1304, 1x77, and 1207.
14-15. See can. 2253 concerning the power of absolution.
17-19. Concerning indulgences see can. 912 ; as to cardinals,
can. 239; § 1, n. 24; metropolitans, 274, 2; bishops, can. 349,
§2, n. 2. Can. 468. 914, 20, we believe, still hold good, because
not given to the Ordinaries as such, but to dioceses.
21. Forbidden books, see can. 1401-1403.
22. Concerning regulars receiving the government of parishes
no faculty is required; cfr. can. 454 and 630; but an incorpora-
tion may be made only with papal permission ; can. 452.
23. No faculty needed by reason of can. 806.
24. Can. 847 allows our custom concerning Holy Communion
brought to the sick.
25. About the wearing of clerical dress no faculty is needed ;
cfr. can. 136.
26. In regard to the recitation of the Breviary (can. 135) no
faculty (properly so called) is needed, and only the general
rules of morality need be observed ; but can. 135 does not oblige
one to substitute three rosaries for the Breviary.
27. No faculty now needed; cfr. can. 1245.
28 and 29. Must be regulated according to what has been said
above, can. 196-21O.
Facilitates Extraordinariae T.
1. Cannot be applied (cfr. above, n. 3).
2. The titulus servitii ecclesiae is now common law (see caa
981), and therefore no faculty is needed.
3-6. Dispensations from these impediments may be granted in
virtue of the decree of April 25, 1918, with the exception of
affinity in linea recta (cfr. can. 97).
7. Remains, because the faculties of the S. Poenit. remain in
force in virtue of the decree quoted.
8-12. Remain in virtue of the eame decree and as far as
this decree permits. But perhaps the reader will find a diffi-
culty in said decree concerning mixed religion: "nee non ab
oogle
Original fro m
UNIVERSITY OF WISCONSIN
592 ECCLESIASTICAL PERSONS
impedimentio impediente mixtae religionis, si pet-inn dispcn-
saiionis ad S. Scdem missa sit et urgens necessitas dUpensondi
supervenerit, pendente recursu." This seems to mean that for
each case a petition has to be sent to Rome (Holy Office), and
the case would be urgent pending recourse. We confess that
this seems a very rigid application of the law and might cause
great trouble, not only now, in time of war, but even in normal
times. Probably a mitigation can be obtained.
13. See above. Form I, n.
14. Is superfluous, according to can. 47.
15. Must be judged according to caa 1056.
16. Must be brought in accordance with can. 1429.
17-20. See above, Form I, n. 17-20.
21-22. These, wc believe, remain, because the department of
indulgences is attached to the S. Penitentiary, whose faculties
are not revoked. Besides the Cardinals enjoy them (can. 230,
n. sf.), as well as the bishops (caa 349, § 1, 10). It would be
about time to stop the privileged state of certain orders and
congregations, if these things are meant for the faithful at large,
and we really expected a canon to that effect
23-26. Arc strictly missionary faculties, not applicable to our
country, for instance, blessing of bells (can. 1169, 1155).
27. Concerning privileged altars, can. 016 f. must be observed.
28. The recitation of the Breviary must be performed accord-
ing to rubrics and sound moral principles.
29. As to forbidden books, see can. 1401-1403.
30. The serving of flesh-meat on forbidden days to non-
Catholics is to be judged according to moral principles.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
jle
Original from
UNIVERSITY OF WISCONSIN
>Ie
I , Original fro ni
UNIVERSITY OF WISCONSIN
bogle
Original fro ni
UNIVERSITY OF WISCONSIN
noi?nMlra
B89097198
162A
■
'.
gle
Original from
UNIVERSITY OF WISCONSIN
L
$
p>
o>
I
oogle
Oricinsl from ^ 1
.^■rtBWRBBsit
library
of tfje
©mberaitp of Wiitonsin
d by Got
>Ie
I , Original from
UNIVERSITY OF WISCONSIN
.'Ie
Original fro ni
UNIVERSITY OF WISCONSIN
A COMMENTARY ON
THE NEW
CODE OF CANON LAW
Bj THE REV. CHAS. AUGUSTINE, O.S.B., D.D.
Professor 0/ Canon Law
WITH AN INTRODUCTION BY
HIS EMINENCE CARDINAL GASQUET
Volume III
De Personis, or
Ecclesiastical Persons
Religious and Laymen
(Can, 487-725)
SECOND EDITION
a HERDER BOOK CO.
17 South Broadway, St. Louis, Mo.
AND
68 GREAT RUSSBLL ST. LONDON, W. C
1919
'le
( * -» ^ ils* Original from
UNIVERSITY OF WISCONSIN
Cum Permissu Superiorum
NIHIL OBSTAT
Sti. Ludovici, die Jan. 6, igjg
F. G. Holwck,
Censor Librorum
■
9
IMPRIMATUR
SH. Ludovici, die 8 Jan., igio
•I* Joannes J. Glennon,
Archie pise opus
Sti. Ludovici
Copyright, 1910
by
Joseph Gummersbach
Alt rights reserved
Printed in U. S. A.
VAIL.aALLOU COU9AUV
'■■!"•"'" *"B «■» **■«
►ogle
Original from
UNIVERSITY OF Vi-'ISCONSI
CQ
•£12.
5
587679
INTRODUCTION BY HIS EMINENCE
CARDINAL GASQUET
I have been asked to write a brief Introduction to this
third volume of the Commentary on the Netv Code of
tv Canon Law. The subject matter is so important and
affects so many people that an. Introduction would al-
most appear to be out of place; but I cannot refuse the
request of an old friend like Father Augustine to write a
* few words to preface his Commentary.
The sections of the Code treated in this volume deal
with two classes of persons, namely religious and lay
L people. The laws relating to the first naturally follow
upon those which deal with clerics, and they are set
forth in this Codex in 195 Canons, in which is given with
£ clearness and precision the whole jurisprudence of the
Church regarding the religious life. In some ways this
c portion of the new Codex may be regarded as perhaps
the most useful and necessary part of the Codification of
ecclesiastical law. Hitherto legislation in regard to re-
ligious has been in what may be called " a fluid state."
It was mostly based upon special Pontifical Constitutions
and deductions from the same, and had not hitherto been
gathered together and coordinated officially. The marvel-
lous growth of religious bodies and the variety, especially
in modern times, of their scope and purpose, had rendered
it difficult, to say the least, to set out the ecclesiastical law
applicable to them.
After the Council of Trent, the advent of Congrega-
tions of Clerks Regular made necessary great changes
oogle
, ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
a/
INTRODUCTION
in the old monastic legislation, and these again opened the
way for other Congregations of simple vows, perpetual
or temporary, which have proved useful and even neces-
sary to meet the needs of the Church in modern times.
The codification of the laws relating to religious life
has consequently not been the easiest portion of this great
work, which has been accomplished in the present Codex.
The most important change which has been introduced in
this section — at least so far as the older Orders are
concerned — is the law which imposes a period of three
years of temporary simple vows after the noviciate, be-
fore perpetual vowst simple or solemn, can be taken.
Hitherto the very ancient monastic principle of stability
was safeguarded by the subjects taking simple vows for
three years, which on their part are perpetual, before
taking their solemn vows.
Another point in the present legislation to be noticed
is the greater stress which is laid upon the element of
" common life," as an essential condition for the religious
life. Canon 487 makes this clear. One who leads an
eremitical life, for example, cannot be called a religious,
because the condition of " common life " is wanting. In
the same way Canon 673 defines as improperly called
" religious " those who, though living together in com-
mon life, are not bound by vows.
The second portion of this volume deals in two sec-
tions with matters regarding the laity and their associa-
tions. In the first the enrollment of the laity in pious
associations is strongly recommended. Since these are
recognized by the Church, they should be approved and
established by competent ecclesiastical authority. The
Ordinary always is to exercise his jurisdiction over such
associations. In view of the great multiplication of these
confraternities in modern times, it is obviously of the
p
I Original from
OO^IL UNIVERSITY OF WISCONSIN
INTRODUCTION
greatest importance that the principles which regulate
them should be set forth and understood.
The second section of this part deals with particular
pious associations, such as " Third Orders," Archcon-
fraternities, Confraternities, Pious Associations, etc.
It will be seen from this bare statement that the Volume
here given to the public contains much of great practical
importance, and I have little doubt that the Commentary
furnished by so competent a canonist as Father Augus-
tine, O. S. B*, will be found of great assistance to those
who wish to understand the New Codex.
A. Card. Gasquet
Rome, Nov. 10, 1918.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
G I Originalfrom
OU^IL UNIVERSITY 0FWI5C0NSIN
■
TABLE OF CONTENTS
BOOK II. PART II. RELIGIOUS
PACE
Historical Introduction I
Sect. i. Origin and Early Propagation of the Religious
State i
Sect. 2. The Religious State up to the Fourth Lateran
Council 6
Sect. 3. From the Fourth Lateran to the Tridentine
Council 9
Sect. 4. From the Tridentine Council to Our Time ... 14
Sect. 5. Female Orders and Congregations 18
Sect. 6. Exemption 24
Commentary 40
Definition of the Religious State 40
Precedence 62
Title IX. Erection and Suppression of Religious Con-
gregations, Provinces, and Houses .... 65
Erection 65
Suppression 74
Change of Papal Institutes 79
Spread of Diocesan Institutes 81
Support of Religious Houses 82
Permission for Founding a New Religious House . . 86
Title X. The Government of Religious 95
Ch. I. Superiors and Chapters 95
The Roman Pontiff and the Cardinal Protector . 95
The Ordinary's Power oq
Religious Superiors 102
Powers of Religious Superiors 103
vii
*Ie
, I , Original from '
UNIVERSITY OF WISCONSIN
viii CONTENTS
PACE
Superiors of Monastic Congregations in
Qualities of Superiors no
Duration of Office 119
Election of Religious Superiors 121
Residence of Superiors 128
Duty of Instructing Their Subjects 129
Duty of Reporting to the Holy See 132
Visitation 133
Pastoral Ditties and Rights 141
Honorary Titles Denied to Religious 147
Counsellors and Procurators 147
The Procurator General ISO
Ch. II. Confessors and Chaplains 152
Confessors of Clerical Institutes 152
Liberty of Conscience 156
Confessors of Sisters 157
The Ordinary Confessor 158
Qualities of Confessors 164
Appointment of Confessors 166
Duration of the Confessor's Office 167
Removal of Confessors 168
Confessors of Lay Institutes of Men 170
Manifestation of Conscience 171
Ch. III. Temporal Possessions and Their Adminis-
tration 172
The Ordinary's Rights 179
Alienation 183
Rendering of Accounts 190
Responsibility and Donations 192
Title XI, Admission to Religious Institutes ... 198
CH. I. POSTL'LANCY 301
o
Duration 201
Place, Dress, Enclosure 202
Ch. II. The Novitiate 204
Art. I. The Conditions Requked for Admission to
the Novitiate 205
The Right of Admitting Novices 214
Testimonials 215
'■-.
jle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
CONTENTS ix
PAGB
Exploratio Voluntatis, or Examination 227
Art. II. The Training of Novices 229
Erection of the Novitiate 229
Requisites £or the Validity of the Novitiate . . . 231
Interruption of the Novitiate 233
The Master of Novices and His Assistant .... 237
Renunciation of Property 244
Ending the Novitiate 250
Ch. III. Religious Pbofession 252
Requisites of Validity 254
Temporary Profession 257
Renewal of Vows 267
Rights and Obligations of Professed Persons . . . 267
Effects of Religious Profession 271
Property and Right of Administration 276
Renunciation of Property Before Solemn Profession 281
Property Received After Solemn Profession . . . 282
Simply Professed Members of Religious Congrega-
tions 284
Vacancy of Benefices . 286
Loss of Incardination 288
Invalid Profession ........... 288
Title XII. The Studies in Clerical Institutes . . . 292
Yearly Examinations 296
Monthly Conferences 296
Title XIII. The Obligations and Privileges of Reli-
gious 298
Ch. I. The Obligations 298
Life in Common and Poverty 303
The Religious Habit 309
Enclosure 310
Papal Enclosure 311
Enclosure of Male Religious 313
College or School Enclosure 314
Papal Enclosure of Nuns; Admission of Outsiders . 315
Duty of Nuns to Keep Within Their Enclosure . . . 316
Enclosure of Religions Congregations 318
Visits 320
>Ie
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
x _. CONTENTS
PACI
Exit from Enclosure 321
Assistance in the Sacred Ministry 322
Parish Churches in Charge of Religious $2$
Choir Service and Mass 324
Letters Not Subject to Inspection 330
Public Worship 331
Ch. II. The Privileges of Religious 333
Clerical Privileges 335
Privilege of Exemption 336
Regulars Outside Their Houses 338
Religious Congregations 341
Punishments 344
Diocesan Indults 345
Begging 346
Non-Mendicant Orders and Congregations .... 347
Pontifical Rights of Abbots 351
Ch. III. Obligations and Privileges of Religious Pro-
moted to Ecclesiastical Dignities or Ad-
ministering Parishes 354
Abdication 359
Religious as Pastors 360
Their Relation to the Ordinary 362
Title XIV. Transfer to Another Religious Institute
(Transitus ad Aliam Religionem) . . . 364
3.
Title XV. Leaving the Religious State 371
Secularization 373
Secularization Proper 375
Incardination vs. Secularization 376
Secularized Religious Prohibited from Holding Certain
Offices 376
Compensation 380
Apostates and Fugitives 381
Obligation of Apostates and Fugitives j&3
Title XVI. The Dismissal or Religious 38s
Ch. I. The Dismissal of Religious with Temporary
Vows 387
Effects of Dismissal 390
Go >gle
Original fro ni
UNIVERSITY OF WISCONSIN
CONTENTS xi
FACE
Ch. II. Dismissal of Religious with Perpetual Vows
from a Non-Exempt Clerical or Lav In-
stitute 391
Ch. III. The Judicial Process for the Dismissal of
Religious with Perpetual Vows in Ex-
u
eupt Clerical Institutes 396
Requisites of a Trial 400
Canonical Admonitions 403
Lack of Amendment 404
Sentence of the Tribunal 406
Ratification of the Sentence 407
Delegation of Trial 407
Ch. IV. Dismissed Religious with Perpetual Vows . 409
Status of Dismissed Religious 411
Obligations of Dismissed Religious 414
o
Q
Title XVII. Societies of Men or Women Living in a
Community Without Vows .... 416
Different Kinds of Communities 416
Establishment and Suppression 417
Government 417
Administration of Property 418
Admission 418
Studies 418
Duties 419
Privileges 419
Leaving a Society 420
.-.
BOOK II. PART III. THE LAITY
Title XVIII. Associations of the Faithful in Gen-
eral 429
c
Objects of Christian Associations 429
Authority for Establishing Societies 430
Ecclesiastical Sanction 431
Title to be Chosen 432
Statutes 432
Authority of the Ordinary 432
Temporalities 433
Rights and Privileges of Members 434
{ *ru"Milf> Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
xii CONTENTS
MOR
Qualifications for Membership 435
Form of Reception 436
No Special Recompense 436
Dismissal 437
Meetings and Officers 437
Moderator and Chaplain 438
Suppression of Societies 439
Title XIX. Associations of the Faithful in Particu-
lar ■■ - 44i
Different Kinds of Associations 441
Precedence 441
Ch. 1. Secular Tertiaries 443
Powers of Superiors and the Ordinary 444
Religious Cannot be Tertiaries 445
No One May be a Tertiary in Two Orders .... 446
Processions 447
Ch. II. Confraternities and Pious Organizations . 448
Establishment 448
Sacred Functions 449
Title of Associations ; ; 450
Several Associations - 450
Establishment .;;..... 451
Religious Superiors- t t ; 1 t 1 ; 452
Change of Dress .;;.;.;;.... 453
Power of the Ordinary * « * t * .... . 453
Parish Rights j J 1 t 4 i 454
Processions 456
Headquarters 456
Ch. III. Archconfratesnities and Primary Organi-
zations 458
Aggregation '. '. . . '. 458
Communication of Spiritual Favors 459
Conditions for Affiliation " . . 45Q
Transfer of Archconfraternities . 460
■
Appendix. Questions to be Answered in the Quin-
quennial Report of Religious Superiors
(Can. 510) 463
I.- About Persons 463
>Ie
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CONTENTS xiii
FACE
(a) About Postulants 463
(b) About Novices 464
(c) About Professed Sisters 464
II. About Property 465
(a) About Houses 405
(b) About Finances 465
III. About Discifline 4*>7
About the Observance of Certain Special Laws 467
About the Works of the Congregation . . . 468
( *r\nnl*> Original from
y^jOO^K. UNIVERSITY OF WISCONSIN
oogle
Original from
UNIVERSITY OF WISCONSIN
■
THE NEW CODE OF
CANON LAW
BOOK II -PART II
RELIGIOUS
HISTORICAL INTRODUCTION
Before starting this part of our commentary, we shall
give a brief historical sketch of the origin of the religious
state and its development into various branches, orders,
and congregations. To this shall be added a paragraph
treating of exemption.
§ I. ORIGIN AND EARLY PROPAGATION OF THE
RELIGIOUS STATE
The primitive form in which the religious state ap-
pears is monasticism. *' Dwelling alone," in its concrete
Christian1 aspect, is a creation of the closing third cen-
tury and owes its origin to SS. Antony and Pachomius.
The former is the father of the Anchorites proper, whilst
Pachomius gave to the monks the cenobitic rule. Un-
doubtedly the persecutions from Decius to Diocletian,
violent and universal as they were, made more than one
Christian tremble for his faith and life and caused many
1 At to the Eisenea, cf. Cath. bert. The Monks of the West,
Encyclopedia, V, 546; Montalem- (Engl, ed.), 1896, I, 217.
I
jle
£ " ^ v -,! » Original fro m
UNIVERSITY OF WISCONSIN
2 RELIGIOUS
to seek shelter in the desert.2 Yet this extrinsic motive
alone would scarcely account either for the multitude
of solitaries or for the perseverance of their ascetic insti-
tutes after peace had been restored to the Church. Hence
another element must necessarily be assigned in explana-
tion of so singular a phenomenon: it is the desire of
fervent Christians to follow more closely in the foot-
prints of the Savior and His Disciples, and to imitate the
great forerunners of monastic life, the prophet Elias and
St. John the Baptist.3 However, it was not only the
voice of Christ bidding His loved ones to forsake every-
thing and follow Him; it was not merely the promise
of a full measure of bliss that attracted the multitudes,
but we may truly say that this abandonment of a sin-
steeped world was due to a deeply felt desire of ap-
peasing the longing of a " naturally Christian " soul.
Montalembert describes it thus : " In the depths of hu-
man nature there exists without doubt a tendency, in-
stinctive though confused and evanescent, towards retire-
ment and solitude. Its manifestations are found in all
the epochs of history, in all religions, in all societies,
except perhaps among savage tribes, or in the bosom of
that corrupt civilization, which by its excess and over-
refinement too often leads humanity back to a savage
condition." * The novelty, too, and a certain chivalric
tendency may have drawn not a few into the wilderness.
But withal the Christian sentiment deeply impressed, and
especially that bewildering echo of the second advent of
Christ — the parousia of St Paul's teaching — prompted
many of those whose souls had been purified in the
P
a Thus St. Paul, the first her- VOrdr, d» S. Ben oil. Pari,, 1684, I,
reit; cf. Vita S. Pauh, in Aett SS. 4.
(Boll), X, Jan. I, 603; Bulieau, »Cf. St Jerome, Proltg. Vital
O.S.B., AMoi ,ir i'Hutowe de S. Pauli. Migne. P. L.. .3. ty.
4 77w Monks of the Wttt, I, 15.
§le
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
INTRODUCTION 3
waters of penance to shake off worldly fetters in order
to contemplate more freely the M light divine." Thus,
then, we see St. Antony the Great5 bury himself in the
mountains of the Thebaid at Pispir, and S. Pachomius
lead his cenobitic army to the cloistral realms of Taben-
nisi in the upper Thebaid on the Nile.0
Rut if we speak of the life in common organized by
Pachomius, we must not compare it to St. Benedict's
Rule. It looked indeed somewhat like a congregation
of modern times, with its superior general, visitations
and chapters; but the essential feature of Benedictine
life, the family ideal, could not be attained by reason of
the great number of monks, 50,000 being mentioned in
the preface of St. Pachomius' rule.7 The brethren were
divided according to their arts or trades, each group hav-
ing its own provost or prior. In the month of August
there was a general chapter at which all officials were
appointed. A great deal of freedom was left to the indi-
viduals; thus, for instance, tliey could take their meals
in common or privately in their cells. Two fast-days per
week were prescribed except during Easter and Whit-
suntide.8
s
Community life was more strictly defined by St. Basil
the Great. The " father" of cenobitic life would have
his monks work and pray seven times a day in common,
besides placing all ascetic exercises under the control
of a superior.
The East, therefore, presented two kinds of monks : the
solitaires following Antony, and the cenobites following
the rule of Pachomius and the great Cappadocian Bishop.
6 Cf. Vita S. Antonii in Acta SS. u Cambridge Texti and Studies." P.
(Boll.), Jan. 17. II, 471 «! I, 1898, P. II, 1904.
• See C. Butler, O.S.B., The 7 Mignc, P. L., aj, 6«, n. 6; n. 8;
Lausiac History of Pallaiius in Butler, /. c, T, 336.
s Mignt, /. c, n. 5.
jle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
4 RELIGIOUS
The wave of monasticism from the East soon invaded
the Western Church, not like a great inundation, but
gradually, gently, and steadily. This was due in part at
least to the whirlwind of Arianism. The persecution set
on foot by these fanatics caused Athanasius and other
Alexandrian clergymen to seek the protection of the
Apostolic See.9 This happened between the years 339
and 341 a. d. On the other hand Italian bishops like
Eusebius of Vercelli were banished from their native soil
into Eastern regions. The same Eusebius, confessor of
the Catholic faith (d. 371 ), on returning from his exile —
which had lasted from 355 to 362, during which time he
had been the guest of the Thebaid monasteries — trans-
planted the monastic institute to Italy.
But it may be safely said that the first impulse
to Western monasticism came from Rome, primarily
through the service of St Athanasius and through the
influence exercised by the noble Marcella. Her palace
stood on the Aventine hill, consecrated by the presence of
the Prince of the Apostles. She is praised by St. Jerome
as the " prima tnonacha Romae." The life of St. Antony,
written about 365, was known to her, and when St.
Jerome came to Rome (382) to renew those instructions
and narratives by adding to them the example of his own
life, Marcella, with her mother Albinia, and her sister
Asella placed themselves at the head of that select num-
ber of illustrious matrons who took him for their guide
and oracle. She died shortly after the sack of Rome by
Alaric (410). 10 Pammackius, a man of consular birth,
is celebrated by the hermit of Bethlehem as the " first
and leader of the monks " in Rome, whose example drew
%AcU SS. (Boll.). II. 1108: St loCfr. Studxen «. Mitteilungen
Jerome, Ad Principiam (Migne, P. O.S.B., 1898, 303 If.
L., aa, 1087 f.).
* -w\iiL-» Original from
jOOglt UNIVERSITY 0FWI5C0NSIN
INTRODUCTION 5
a
many noble, learned, and powerful men to the monastic
life.11 It is to be noted that among the great houses of
Roman nobility the Anician family distinguished itself
in a conspicuous manner. A grand-daughter of Proba,
of the gens Anicia, devoted her life to Christ in Africa
and is celebrated by St. Augustine.12 From Africa wc
cross the Mediterranean Sea to Spain, but particularly to
France, that fertile soil of monasticism.
The historical genesis of monasticism has now been
briefly outlined. We have seen that in its beginnings it
was of human origin, and we naturally ask ourselves if
it had also a divine sanction, or whether it was completely
a human invention. To answer this question properly
we must make a distinction. Christ invited His Apostles
to His fellowship. He tendered this call to the wealthy
youth and urged that he sell whatsoever he had and fol-
low Him. The precepts contained in the Decalogue and
in the Sermon on the Mount were addressed to all alike :
but it was not so with the counsels leading to a more
perfect life. " Qui potest capere, capiat." Yet, it must
be evident that, as Christ gave these counsels, He in-
tended them not for mere contemplation, but for prac-
tice. He aimed at gathering a " little flock " which
would more closely follow the footprints He left on
earth, and unswervingly walk that narrow path which He
himself had traveled. This close imitation of the Sa-
viour is more surely achieved by living according to the
D
11 St. Jerome Ep. ad Pammach., the dreM of the monki wu black
•ayi: " Prima* in frimit, archistra- and of coarse material.
ttgos monockorum" . . , " quis 12 Montalembert, /. c, I, 293.
<-*!»« eredetet ut eonsulum prone- Beiide* theae name*, others might
pox ft Furiani germinis decus, inter be mentioned, such aa Melania the
purpuras itnatorum, furi'a tunica elder and younger. Paula, Eusto-
PulUtus tnctderttf " (Migne. »a. ehium, etc., aa well aa St. Paulinua
641 f.) which wordi indicate that of Nola, not to apeak of St Aug-
*Ie
uBtine and bis monk-like clergy.
Original fro ni
UNIVERSITY OF WISCONSIN
-
6 RELIGIOUS
three counsels: poverty, chastity, and obedience, which
embody the perfection proposed by Christ. Hence,
wherever these three are put into practice, the religious
state exists, and that by divine right Monasticism, how-
ever, is not the religious state ; it is but a form or part
thereof, as a branch is part of a tree. It would not,
therefore, be quite correct to assert that monasticism
exists by divine right, unless it be identified with the
religious state in general. In this latter sense we might,
though improperly, say that its foundation is divine, —
that it is " the philosophy introduced by Christ." 18
If this is true of monasticism, which is not the con-
crete form of the religious state, it is even more applicable
to single monasteries or congregations, which, as history
teaches, may appear and disappear. On the other hand,
the law of prescription must be quoted in favor of monas-
ticism ; despite all dislikes, derision and persecution from
adversaries within and without the Church, it has always
proved a solid rock amidst the storms of the sea, and a
fertile spring of true civilization and learning, rendering
untold services to the whole of humanity.14
—
s
§ 2. THE RELIGIOUS STATE UP TO THE FOURTH LA.TERAN
COUNCIL10
...
Our Code (can. 488) distinguishes the following cate-
gories of religious:
The Religions
State consist! -J
of
i. Orders of Reg-
u'r.rs with solemn
vows and
2, Congregations
with simple rows.
a) Monastic Congregations
b) Clerical or loy orders.
' a) Exempt — not exempt, j either
b) Fontificial institutes. f clerical
e) Diocesan institutea. J or lay
M St, John Chrya., Horn. a4 ib Cf. Mnntalemhert, The Monks
Po/wL Antioch. 17: Montalembert, of the tt'est. Engl, ed., 1896: Heim-
/. c, I, 318. bucher, Ordensgeschichte, 1896, a
14 Montalerabcrt, /. c, I, 9* vols.
jle
, .j,.. Original from
UNIVERSITY OF WISCONSIN
INTRODUCTION 7
a
Monasticism, as we have seen, was the common form
of the religious state in the early Middle Ages, up to
the time of the IVth Lateran Council (1215). That
this year marks an epoch in religiouj life is evident from
the far-reaching decrees of the Council mentioned, as
well as from the fact that soon afterwards orders cf a
somewhat different type made their appearance. We
need not recall the different rules which were introduced
by saintly men. Individualism was the keynote of the
first centuries up to the time of Charlemagne, when the
Rule of St. Benedict was made the monastic code, not
by extrinsic forces merely, but chiefly by its intrinsic
merit. Its organization is cenobitic, prescribing a life
in common under the government of an abbot, elected by
the brethren for lifetime. Its end is the conversio
in
morum, or truly moral conduct based upon the Evan-
gelical truths. To achieve this principal aim St. Bene-
dict clothed it in the form of a vow or promise, which
was supported by two more — obedience and stability.
These three formed the contents of the formula of pro-
fession which every son of St. Benedict had to pronounce
after a year's novitiate. There were no special spiritual
works demanded beyond what the Gospel taught ; — no
flagellations, no special fasts except those prescribed by
the rule and the regulations of the Church, no new-
fangled devotions. The liturgical prayer was to be the
prayer of the monks, in it they should live, from it they
should draw inspiration and example. But work, too,
was prescribed, no kind, either intellectual or manual,
being excluded, though the latter was the principal form,
until a distinction between fratres barbati (conversi or
lay brothers) and monks proper was made, towards the
end of the Xth century.15 These are the two main fea-
M Comvetsi or barbati occur in the " Customs " of Einsiddn, com-
I Original from
jrV-jOOglL UNIVERSITY OF WISCONSIN
8 RELIGIOUS
tures of the Benedictines: " Ora et labora," by which
they cultivated the soil, trained the young, and brought
truth and culture to tribes and races not yet in touch
with the Church or civilized society.
The Rule of St. Benedict was the foundation of many
other orders. Thus the founder of the Camaldolese (St.
Romuald, 1027) and the founder of the Vallombrosians
(St. John Gualbert, 1073) adopted the Code of the
" Patriarch of Western Monasticism." XT The most illus-
trious branch is that founded by St. Robert at Citeaux,
Burgundy, in 1098. The name of one great abbot of
Clairvaux, St. Bernard, has given to the Cistercians a
lustre which shall never fade. St. Bernard is said to
have received 200 novices, and in the middle of the 14th
century his order counted no less than 700 abbeys.
Their rule was that of St. Benedict, whilst the more de-
tailed organization is contained in the Charta charitatis.
The chief superior is the abbot of Citeaux, who is as-
sisted by four u Father Abbots " and a general chapter
held every year. The powers of the chapter were exten-
sive. It could even depose the abbot of Citeaux, though
the latter was elected by the monks of Citeaux and the
abbots of the other monasteries. Besides, the general
chapter elected twenty-five Definitores, who were en-
trusted with the affairs of the Order outside the time of
the chapter-meeting. This is, if not a deviation from,
at least a change of, the Benedictine rule, and, we be-
posed by Abbot Gregory, an Eng- iTThc order of Grandmont, and
lishman, towards the end of the that of Fontciranlt, founded by
10th century. They were din- Robert of Arhris«e1s. in rioo. might
tinguished from monks, probably by also be mentioned, especially the
a different kind of profession, wear- latter, because placed under the
ing the beard, and their chiefly out- jurisdiction of an abbess, whom
ward occupation; they were not ad- monks and nuns obeyed,
raittcd to choir service.
..-.
>gle
Original fro ni
UNIVERSITY OF WISCONSIN
"-.
INTRODUCTION 9
lieve, a wholesome democratic one, which the orders of
the following period adopted.
Closely allied to the Benedictine rule, although with
traits of hermitical life, somewhat similar to the Camal-
dolese, are the Carthusians, founded by St. Bruno (1084)
at Chartreuse, near Grenoble.
More clerical than monastic were the orders which
followed the so-called Rule of St. Augustine, — a com-
pilation from the writings of the great Bishop of Hippo.18
To this class belong all the branches of the Canons Regu-
lar who adopted the common life and pronounced the
three religious vows and were spread in different con-
gregations. The Praemo7istratensians or Norbertines,
founded by St. Norbert (1120), and the Trinitarians,
by John of Mortha and Felix of Valois (1198), may
also be counted among the followers of the Augustinian
rule.
§ 3. FROM THE FOURTH LATERAN TO THE TRIDENTINE
COUNCIL
Whereas the first period bore an almost exclusively or
at least overwhelmingly monastic ,0 character, the fol-
lowing epoch may, according to the saying " a potiori fit
denominatio " be styled clerical, or at least fnonastico-
clerical. On one side we see the Benedictine and Cis-
tercian orders flourish, or revived through the medium
of newly formed congregations, like those of St. Justina
of Padua (1412), of Melk in Lower Austria (1418),
18 The Rule in Its present form Church History. Engl. Tranal.,
did not originate with St Augus- 1S76, Vol. II, p. 693.
tine. It ia a compilation from bis is Etch the Canons Regular fol-
two sermons " On the Morals of lowed a rule that was. in the
the Clergy," and a "Letter (109) main, taken from the Rule of St.
to the Niim of Hippo." Particular Benedict; such was that o( Chrode-
■tatutes were added to this compila- gang of Metz; cfr. Hefele, Cone
tion later on; cfr. Alzog, Manual cf Gesch., IV, 17 ff.
oogle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
io RELIGIOUS
and of Bursfeld (1440); on the other hand the phe-
nomenal rise and development of the Mendicants, who
devoted themselves chiefly to the sacred ministry, marks
a new epoch full of life and energy.
6"/. Francis, the humble poor man (poverello) of Assisi
in Umbria, founded his " confederation," as he called it,
in 1209. On Nov. 29th, 1223, his rule was approved
by Honorius III, whose predecessor, Innocent 111, had
enacted at the Lateran Council that, to prevent too great
a confusion of religious, no one should found a new
order, but all who felt called to the religious state should
enter one of the established institutes,20 and those who
wished to found a new religious house should accept a
rule and institute already approved. Though this canon
was enacted alter Francis had laid the foundations of
his marvelous society, the great Pope and canonist
seemed to be slow, especially on account of the extreme
poverty proposed by the Saint, in giving his permission.
At length an oral leave was granted through the inter-
vention of the Cardinal of St. Prisca, Colonna. Hono-
rius III gave his formal approval to the rule after the
order counted thousands of members.
The Code of St. Francis is simple. It comprises
twelve brief chapters. The first treats of the three vows,
of which the strictest is that of poverty. It also con-
tains a clause of M obedience and reverence to the Pope."
Noticeable and new is the insertion of a special addition
to the twelfth chapter, which enjoins the minister gen-
eral to ask the pope for a cardinal protector and super-
intendent, in order that the brethren may always be
subject to the Holy Roman Church and remain un-
swerving in the Catholic faith. The organisation has
some similarity with that of the Cistercians, in as far,
20Cfr. c. 9. 3C, III. 36.
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
INTRODUCTION u
namely, as the minister general is elected by the general
chapter, which may also, upon unanimous vote, depose
him. Under the minister general are the provincials,
and under these the custodes (cap. 8). Chapters 9 and
12 treat of preaching, which the brethren are to omit if
the Ordinary forbids them. Preaching among the Sara-
cens and infidels may, by special grace, be undertaken
with the permission of the provincial. As to the vow of
poverty (cap. 6) the Saint commands his brethren "to
possess nothing for themselves, neither house, nor
estates, nor anything," but to live entirely on alms. This
latter point is specifically Franciscan and, like many
other human institutions, has caused some disturbance
because of divergent interpretations.21 But not on that
account may any slur be cast upon the holy Founder's
intention, nor should the subsequent splits among the
Friars Minor form a reason or pretext for casting asper-
sions on the institute as such, which has wrought mira-
cles of spiritual reformation among the faithful and
produced a great number of Saints.
The division of the Franciscan Order, which practi-
cally began towards the end of the 14th century, was
completed and sanctioned by Leo X. " lie et vos," May
28, J 517. Henceforth two great branches were recog-
nized: that of the Observants with the brown habit, and
that of the Conventuals with the black habit, who were
entitled to possess movable and immovable property,
whilst the Observants claimed no right to own property
nor any special indults.
A third, very popular and deserving branch of the
great Franciscan Order is that of the Capuchins, founded
by Matteo di Bassi and approved by Clement VII, May
-
11 Cf. Nicholu III, " Eriit qui verb, signif.; Clem., " Exwit/* c. I,
ttminat/' in c. 3, 6*. V, I*, de Clem. V, II.
k ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
gle
12 RELIGIOUS
18, 1528. After severe trials, lasting for many years
and threatening its very existence, this order was for-
mally recognized by Paul V, in 1619, as autonomous with
its proper Minister Generalis. Since they proceeded
from the Observants, the Capuchins cling to the original
rule of St. Francis and observe absolute poverty. Simi-
lar to their rule is the one composed by St. Francis of
Paula for his order, called "Minimi," approved a. d.
I474-
In 1217, Innocent III approved an order which has
gained universal admiration for its scientific pursuits and
high achievements, especially in speculative theology. It
is the Order founded by St. Dominic, known as that of
the Friars Preachers or Dominicans. The Pope enjoined
the holy Founder to assume, according to the decree of
the Lateran Council, a rule already approved. He
adopted that of St. Augustine, as it was then called.
The organization proper of the new Order was estab-
lished at a chapter held at Bologna in 1220. The con-
stitutions adopted there enacted that the general chapter,
to be held every three years (now held every twelfth
year) should enjoy legislative powers and elect the Ma-
gister Generalis,22 who himself chooses his associates
(socii) in the government of the Order. The provincials
are elected by the provincial chapter for four years and
are assisted by definitores chosen by the same chapter.
A prior is set over every house for the period of four
years and is assisted by a subprior. Special attention
was given to studies, which should last at least eight
years, two of which are devoted to propaedeutics.
A characteristic of the Order of the Friars Preachers
is poverty. Together with the Franciscans they are
called mendicants. At first they depended entirely on
21 Now elected for twelve rears.
*Ie
Original from
UNIVERSITY OF WISCONSIN
INTRODUCTION
13
■
-
-
alms, but later papal constitutions (like that of Martin V,
1425) allowed the Dominicans to hold landed property
and have a secure income. Another feature peculiar
to this order is the office of preaching, for which they
were chiefly founded (against the Alhigenses), and
which they performed with great zeal and success espe-
cially at the time of the Reformation. Most remarkable
is the great number of accomplished scholars whom they
produced and who held the Catholic world spellbound
for centuries. The names of Albertus Magnus, Thomas
Aquinas, and Cajetan suffice to show their merit and
greatness.
The rule of St. Augustine was followed also by the
Mercedarians, *l the royal, military, and religious order
of the Blessed Virgin for the ransom of slaves," founded
in 1223 by Peter Nolascus; by the Servites, or "Ser-
vants of Mary," established by seven Florentine nobles
in 1233; and by the " Alexian Brothers," founded in the
14th century and allowed to make solemn profession by
Pius II (1459). These latter are a lay order engaged in
charitable work, and since 1870 the members take only
simple vows. The so-called Hieronymites and Bethle-
hemites likewise followed the so-called rule of St.
Augustine.
During that same period the Benedictine Order ex-
perienced not only a reformatory impetus, but also an
increase of branches: St. Sylvester, of the Gozzolini
family, in 1231 founded at Fano near Fabriano a monas-
tery which became the mother-house of the Benedictines
of the same name. Their constitutions, based on the
rule of St. Benedict, were finally approved by Alexander
VIII (1681). They now devote themselves to mission
work in various countries, including the U. S. (Diocese
of Wichita, Kansas). Another Italian foundation was
GO ;^IC
Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
14 RELIGIOUS
that of Celestine V, who as Peter Murone established a
congregation based on the Benedictine rule and known
as Celestinians. This order at one time counted about
150 monasteries, but is now nearly extinct. The last
Benedictine congregation founded in that period is that
of Bl. Bernard Tolomeo, who called it the order of the
Blessed Virgin Mary of Mount Olivet, wherefore its
members are named Olivetans. They still have some
monasteries.
A rule with Oriental traits, but modified by Eugene
IV in 143 1, is that of the Carmelites, written by Patriarch
Albert of Jerusalem in 1208 and then transplanted to
the West. Particularly in Spain this order gained a
solid footing and received a fresh impetus through the
reformatory zeal of the great St. Teresa and St. John
of the Cross, in the middle of the sixteenth century.
§ 4. FROM THE TRIDENTINE COUNCIL TO OUR TIME
This period might be called congregational because,
although a few orders were started, yet the signature of
the whole epoch is that of religious congregations with-
out solemn vows, or of merely pious societies without
vows proper.
First and deserving of particular mention is the Society
of Jesus,2* founded by St. Ignatius Loyola in 1534 in
the crypt of St. Denis of Montmartre at Paris and ap-
proved as an order by Paul III (" Reyimini militantis
ecclesiae," Sept. 27, 1540) fifteen years before the holy
founder's death. The code of this order is remarkable
for its detailed and elaborate regulations. It is contained
23 Nothing can be said against Ignatius with that of the founders
that title (cfr. Cath. Encycl., XIV, of other orders in favor of the
81); however, if a member of S. J. former, as if these latter had given
(Cuvilhicr, Medilationrs Brevis- their own names to their founda*
simar) contrasts the humility of St. tions, it sounds somewhat puerile.
>Ie
£ * ^ ,,1,, Originalfroni
UNIVERSITY OF WISCONSIN
INTRODUCTION 15
in the " Institutum Societatis Jesu" 2* often printed,
and therefore no secret. For our purpose the most im-
portant part of the Institute is the " Constitutions."
from which we learn the internal and external organiza-
tion of that illustrious corporation. The head of the
Society is called praepositus gcncralis, or simply General
of the Jesuits, although the chief authority is vested in
the " General Congregation," which is similar to the Gen-
eral Chapter of other centralized orders. To that Gen-
eral Congregation belongs the supreme legislative power,
whilst the fullness of administrative power and spiritual
authority is vested in the General. He appoints the
provincials (at present twenty-seven, four in the U. S.),
and the local superiors: rectors of colleges, provosts of
professed houses, and masters of novices. The General
is aided by five assistants, who, however, enjoy only a
consultive vote, and by an " admonitor." This organ-
ization is to some extent democratic, inasfar, namely, as
the General Congregation is the legislative organ. Wc
fail to see where the aristocratic element 25 enters. It
is rather a constitutional monarchy, because the General
of the Society has unlimited power within the Constitu-
tions.
in
The members are: (1) novices, whose "probation"
lasts two years; (2) formed scholastics, aspirants to the
priesthood with simple but perpetual vows; (3) formed
coadjutors, lay brothers or priests with simple but per-
petual vows; (4) professed members, who besides the
three usual solemn vows of religion, make a fourth to
obey the P'ope in the matter of missions and to go wher-
ever they are sent. They also make certain additional,
but non-essential, simple vows in the matter of poverty
34 Cfr. Cath. EncycL, I. c, which 25 Cfr. Heirabucher, /. c, II. 5S-
we chiefly follow concerning this
Society.
{ *r\nnl*> Original from
y ^.00£>IL UNIVERSITY 0FWI5C0NSIN
16 RELIGIOUS
St
and external honors, also regarding ecclesiastical digni-
ties, if we mistake not.
The object 2fl of the order is not limited to practising
any one class of good works, but to study, in the manner
of the Spiritual Exercises, what Christ would do if He
were living in our day, and to carry out that ideal.-7
Hence elevation and largeness of aim. Hence also the
motto of the Society: "Ad Maiorem Dei Gloriam."
Obedience is the characteristic of the order, — to be
ready for any call and to preserve unity in every va-
riety of work. Hence, by easy consequence,28 the omis-
sion of office in choir, of a specially distinctive habit, of
unusual penances. The ministry of the Society consists
in preaching, the administration of the Sacraments, and
teaching.
History has shown that the members of the Society
have carried out their noble purpose for the welfare of
the Church at large; their literary and missionary work
lives after them, and one of the greatest titles of honor
peculiar to the Society is perhaps that of being the most
calumniated order in the Catholic Church.
Of a charitable character, purposing to help orphans
and the poor, is the order founded by St. Hieronymus
Aemilianus, approved by Paul HI in 1540, and declared
a religious order by Pius V in 1608. It is called the
order of Sonwsco, because this place (near Bergamo in
Italy) was its first settlement. The rule is that of St.
Augustine.
The same rule was adopted by the order of St. John
25 Cath. Encycl., XIV, 84 t these are the exclusive literary
2T This ii not specifically Jesuitic, product of the holy founder,
except in as far as the method is 28 However, it is known that St.
" according to the Spiritual Exercises Ignatius omitted choir service from
of St. Ignatius," provided, of course, his Code only after long delibera-
tions.
>Ie
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
INTRODUCTION 17
a
a
of God ("Brothers Hospitallers"), founded in 1540 at
Granada in Spain and raised to the dignity of an order
in 1570 by Pius V. It has a lay character, because only
a few of its members, generally one in each house or
hospital, are priests. These Brothers enjoy the privi-
leges of mendicants, granted by Urban VIII in 1624.
Their chief task is nursing the sick.
Very similar is the order founded by St. Camillus of
Lellis in 1504, and approved as an order with the privi-
leges of mendicants by Gregory XIV, in 1591- The
members are named ''Fathers of a Good Death."
For the sacred ministry and the embellishment of the
church service St. Cajetan and Caraffa, later pope Paul
IV, founded the Theatines, in 1524.
The Barnabites were established by Antonius Maria
Zaccaria in 1530 at Milan.
For school purposes chiefly was instituted the " Order
of the Pious Schools," or Scolopii, by St. Joseph of
Calasanza at Rome, in 1597.
Now we come to the congregations of men. Hither
belong the Christian Brothers, founded in 1679 by St.
John Baptist de la Salle, and approved by Benedict XIII,
in 1724. They are a lay institute engaged mainly in the
primary and middle-class education of youth. Their
number is as great as the merits they have gained in the
field of pedagogy in almost every country of the globe.
Two priestly congregations of a clerical character, which
are spread over the whole Church are those of the Pas-
sionists, founded by St. Paul of the Cross, in 1725, for
mission work and the constant remembrance of the Pas-
sion of our Lord, and that of the Redemptorists, founded
in 1735 by St. Alphonsus of Liguori, especially for the
exercise of the sacred ministry among the poor and for-
saken, which scope it carries out with astonishing success.
oogle
, ,|,, Original from
UNIVERSITY OF WISCONSIN
18 RELIGIOUS
The congregation of St. Sulpice, founded in 1642 by
Jean Jacques Olier, and that of the Eudists, founded in
1643 by P- Eudes, are devoted to the training of the
clergy.
Among the many pious societies whose members take
no special vows, are to be mentioned the Oratorians, es-
tablished by the "Apostle of Rome," St. Philip Neri, in
1575; the Lazarists, founded by St. Vincent de Paul,
in 1624, and approved by Urban VIII, in 1632; the
Oblates of the Immaculate Conception, established in
1816 by Bishop Mazcnod ; the Marists, or Fathers of the
Society of Mary, founded in 1816 by Abbe Colin; the
Fathers of the Precious Blood, founded by Bl. Gaspar
del Bufalo, in 1823; the Pallottini, founded by the Ven.
Vincent Pallotti, in 1835; the Fathers of the Holy
Ghost, founded in 1848; the Salesians of Don Bosco,
founded in 1855 ; the White Fathers, founded by Cardi-
nal Lavigerie, in 1868; the Society of the Divine Word
(Steyl), founded by Arnold Janssen, in 1875 ; the Society
of the Divine Saviour, founded by J. B. Jordan, in 1881 ;
the Fathers of the Holy Cross, founded in 1841 at Notre
Dame, Ind. ; the Paulists, founded in 1859 as an offshoot
of the Redemptorists ; the brethren of St. Viator; the
priests of the Most BL Sacrament, founded by Julien
Eymard, in 1856, and others, among them many Ter-
tiaries from older orders. The Assumptionists, founded
in 1520, with the rule of St. Augustine, conduct schools
and missions in various countries, especially in France,
where they flourished before the iniquitous laws of 1905.
§ 5. FEMALE ORDERS AND CONGREGATIONS
a
The rules for nuns, or sacred virgins, as they were
called, were sometimes nothing else but practical instruc-
tions given by renowned bishops. Thus St. Ambrose
>Ie
Original from
UNIVERSITY OF WISCONSI
J
INTRODUCTION 19
composed his "Exhortation to the Virgins,"' (about
397). That the rite of veiling those who vowed virginity
dates to remote antiquity, perhaps to the beginning of the
fourth century, is unquestionable. The existence of
sacred virgins is testified to by Tertullian.29 Monasteries
of nuns were early and numerous in Egypt, Cappadocia,
and Palestine. Later the monachae were also introduced
into the West. Rules were then written especially for
nuns. Thus St. Caesarius of Aries (542) wrote a rule
for virgins and monks,80 St. Leander of Seville (603)
one for his sister Florentia.81 But the Rule of St. Bene-
dict, under which St. Scholastica lived, soon governed
most convents of nuns. In 742 a German national
council enacted that " monks and nuns should introduce
and observe the Rule of St. Benedict." 8a Besides the
Benedictines there were also Cononesses, as we learn
from a council of Mayence in 8i3.aa However, it is safe
to say that to the beginning of the thirteenth century the
majority of nuns followed St. Benedict's rule, cither
as '' black " Benedictines, or as Camaldolese or Vallom-
brosian Sisters. This condition prevailed up to our time.
The branch of the Olivetans was instrumental in the
foundation of the noble society of the Oblates of Tor de
Specchi, whose holy foundress was St. Frances of Rome
(+ 1440). A congregation founded by the Ven. Mech-
tildis in 1654, and approved by Innocent XI in 1676, was
devoted to the perpetual adoration of the Bl. Sacrament.
In our country the Benedictine nuns, established within
the last 70 years, have grown in number and do meri-
torious work in parish schools and academies. But their
29 Cfr. Wilpert, Die zottgewesih- ai Ibid., 73, 873 f.
ten Junyfraucn, 1S92. 32 Mansi, Coll. Cone, XTI, 366.
aoMignc, P. L., 67, 1099 ff.; 1107 as Ibid,, XIV, 64 (can. 73).
§le
k ,1,., Original from
UNIVERSITY OF WISCONSIN
2o RELIGIOUS
vows are, now at least, simple, though perpetual, and be-
cause of the nature of their work papal enclosure is not
imposed on them. Outside of special Apostolic indults
they are not under the jurisdiction of Benedictine abbots,
but under that of the Ordinaries of the dioceses. Neither
do they elect an abbess, but a mother superior.84
The great Mendicant Orders of St. Francis and St.
Dominic also had sisterhoods following their respective
rules. St. Clare was vested by the seraphic Saint him-
self with the tunic of the order, March 18, 1212. This
was the beginning of the second order of the " Pover-
ello " of Assisi, but the code proper of the Clarisses was
that which combined the second (1247) and third rule
(1253) and remained the fundamental constitution for all
Franciscan nuns who take solemn vows and are subject
to the Friars Minor. Besides these St. Francis estab-
Hshed a rule for persons remaining in the world, who
were called Tertiaries. Towards the close of the thir-
teenth century some of these Tertiaries commenced to
live in common and were therefore called Tertiaries
Regular. These were united with the first order of the
Friars Minor by Leo X, in 15 12, and are therefore an
order of moniales with solemn vows. The same Pope
allowed Tertiaries to exist with simple vows and in com-
munity. These follow the rule of St. Francis, as ap-
proved by Nicholas IV. Lastly there was a class of
Tertiaries who did not live in common but with the per-
mission of the bishop took one or three vows and wore
the religious habit.
Pius V, by his Constitution " Circa pastoralis," of May
a«The Catalogue O. S. B. of 1910, Most of those not exempt (2214)
p. 710 {.. gives the total number of live in the U. S. Most probably the
"Black" Benedictine Sistera as number has, aince 1910, increased to
8360, of whom only 411 are exempt 3000.
jle
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
INTRODUCTION 21
29, 1566, compelled all nuns with solemn vows to live
in enclosure, and furthermore decided that all Tertiaries,
a
or ''those who are called of the penance" — thereby-
striking a blow chiefly at the aforesaid Tertiaries of St.
Francis — should make solemn vows and be obliged to
observe the enclosure.85 But conditions were stronger
than the Pope. Despite all the penalties threatened, new
congregations sprang up. For a long time the S. C. EE.
et RR. was wont to approve the rules of such congrega-
tions with the clause : " without however approving the
institute itself." ao This custom was tenaciously followed
up to the beginning of the 19th century, when so many
■n
deserving communities sprang up that Rome could no
longer withhold formal approbation.
But to return to the Franciscan Sisters. It is aston-
ishing to see how many branches sprang from that pro-
ductive tree. One of them was that of the sisters of St.
Elizabeth, which existed in great numbers in the 16th
century. They wear sometimes a brown, sometimes a
grey habit (soeurs grises). It is impossible to name
them all, but we must mention at least the institute of
Sisters founded by P. Theodosius Florentini under the
name of " Holy Cross" or "Mercy-Sisters of the Holy
in
Cross," whose seat is at Ingenbohl," and the " School
Sisters of the Holy Cross/' at Menzingen, both in Swit-
zerland.
Similar to the orders mentioned, that of St. Dominic
also had a second and third order for women. The
former was probably, founded in 1217 in Rome, whilst
the latter was established by Munio di Zamora and ap-
88 Cfr. Pius V, *' Lubricvm vitat 8« Bened. XIV, " Quamv is iusto."
genus." Not. it, 1568. which com- April 30, 1749, 5 5.
pel led mate congregation* to take 87 These Sisters enjoy some ex-
solemn vow*. emotions, for instance, in the choice
of their confessors, etc
* ( iM\a\i> Original from
• OOtJK. UNIVERSITY OF WISCONSIN
22 RELIGIOUS
proved by Innocent VII (1405) and Eugene IV (143Q).
Prominent among the Tertiaries of St. Dominic are the
" Mantellatae " or Poor School Sisters of the Third Or-
der of St. Dominic.
The rule of St. Augustine was followed by the order
of nuns established by St. Birgitta of Sweden in 1344,
the constitutions of which were approved by Urban V
(1379). The Ursulines were founded by St. Angela
Merici in 1535, and appear as an order with solemn vows
under the rule of St. Augustine in 161 2. The same rule
is the foundation of the order founded by St. Francis
de Sales and St. Francis de Chantal, in 1610, and known
as Visitation Nuns. In our country they are the only
nuns with solemn vows.
The congregation founded in 1635 by St. Vincent de
Paul as Filles de la Charite or Sisters of Charity, spread
■
widely over the world and gained universal approbation
by their works of charity. Of a very charitable charac-
ter is also the order of the Sisters of the Good Shepherd,
an offspring of an older sisterhood, the Bon Secours,
founded in 1644.
Chiefly for educational purposes were intended the in-
stitute of the " Sororcs Anglicae" or English Ladies,
who had a peculiar fate, as may be seen from Benedict
XIV's Constitution " Quamvis iusto," of April 30, 1749.
Related to them are the Loreto Sisters (1822) and the
" Congregation of Irish Sisters of Charity " ( 1836). To
these may he added the Notre Dame Sisters, the Sisters
of St. Joseph (1805), the Sisters of the Precious Blood,
etc., etc.
Last, but by no means least, may be mentioned the
" Ladies of the Sacred Heart of Jesus," founded by Bl.
Magdalen Sophie Barat, in 1800, and approved by Leo
XII, 1826. These " Ladies with the hearts of dragoons "
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
INTRODUCTION 23
have flourished in the U. S. in consequence of the zeal
of Madame Duchesne.
If we omitted to mention the military orders,** it was
for the obvious reason that they are no longer of im-
portance.
After this brief summary notice may be taken of the
differences between the various organizations. Up to
the foundation of the Society of Jesus the religions state
was considered to be founded on solemn vows or profes-
sion, and until the middle of the last century there was
generally but one profession in the religious orders (ex-
cept the Jesuits), and this a solemn one.30 The religious
state even now requires the three vows embodied in the
formula of profession which binds the members to their
community. Hence congregations in which only one vow,
for instance, that of obedience, is taken, are not religious
congregations, nor do they partake of the religious state.40
On the other hand it is now immaterial whether they are
congregations in which solemn or simple vows are made,
either pontifical or diocesan institutes, as long as pro-
fession of the three essential vows is made in a com-
munity approved by ecclesiastical authority, either su-
preme or inferior (bishop). But it is not without reason
that orders, 1. e., religious organizations with solemn vows,
are of higher rank and more esteemed by the Church.
For they are of a more stable nature and have a long-
standing tradition in their favor. This we say, not to
disparage the congregations, but as canonical truth. The
very fact that the Church has granted to the regular
SB The Order of SI. John, or Mai- ual of Church History. Engl. Trans.,
tcsc Knights, was founded in 1048, 191J, I, 375 f.
that of the Knights Templars in 39 " N eminent latet," March 10.
tri9, that of the Teutonic Knights 1857; " Pcrpensis," May 3, 190.*.
in 1 190; others were established in « Can. 673, J 1.
different countries; cf. Kunk, Man-
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
■
24 RELIGIOUS
orders exemption, which she has withheld from the con-
gregations (except by special indult), shows her inten-
tion. A special indult was given to several important
congregations, v. g., the Redemptorists and the Passion-
ists.4X
§6. EXEMPTION
The Code tells us that " regulars are exempt from the
jurisdiction of the Ordinary of the diocese," and that by
the name of regulars must be understood religious of an
order or religious organization in which solemn vows are
taken.*2 In these words is contained the institute of
exemption, which has a history of more than twelve cen-
turies and an eventful development in a secular as well
as in an ecclesiastical respect, which finally led to the
legal recognition of singly granted privileges as a juri-
dical entity. A brief historical review " may not be
amiss and seems necessary to understand exemption.
I. Up to the beginning of the seventh century the gen-
eral law of the Church may be said to be embodied in the
words of the Council of Chalcedon: "No one is al-
lowed to build or erect a monastery or oratory without
the consent of the bishop of the city ; all the monks living
in that city or country should be subject to the bish-
ops." ** Whether this injunction was always carried out,
we do not know ; but it is certain that Gregory the Great
(590-604) insisted upon the right of the diocesan bishop
over monasteries and monks. For he emphatically states
that the bishop is the competent judge in all causes of
41 Alio to the Missionary Fathers Archiv. /fir Kath. Kirckenrecht
of the Sacred Heart; cfr. Ver- (Hueffner), 1906-1907; Schreiber,
meersh in the Cath. Enc\cl.. XII, Kurie und Kloster im XII. Jahrh..
758. 1010 (in Stutx, KirchtnrechtL
48 Cfr. can. 615; can. 488, 2, 7. Abhandl., 65-68.
4aCfr. Fabre, Etude sur \e Libit **Can. A, cf. c lo, C. 18, q. *.
Censuum de VEglisi Romaint, 1892;
►ogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
INTRODUCTION
25
■
monks and nuns, and that he has to watch over their con-
duct, punish and correct abuses, because he will have to
give an account to God for that part of his flock as well
as for the others.45
On the other hand he defends the rights of the mon-
asteries and their superiors in a letter to Maximianus of
Ravenna,48 where he says that the brethren have the right
to elect an abbot from among themselves, except in case
no one worthy of that office can be found in the monas-
tery ; that the bishop has no right to meddle in the tem-
poral administration, revenues, property, documents, of
the monastery, and should not charge the monastery with
taxes nor invade it by any fraudulent action. The privi-
lege of exemption we cannot find in Gregory's letters,
though some think it is there.47 Gregory's rules on the
monastic life do not differ essentially from those laid
down in St. Benedict's Code.48
2. But we are approaching a period, and it is only
twenty-four years remote from the death of Gregory,
which foreshadows the beginning of real exemption.
Bobbio, a monastery founded by St. Columbanus on the
Trebbia, was apparently troubled and molested by the
Bishop Probus. Abbot Bertxdfus, the second successor
of the holy founder, seeking protection against the vex-
atious bishop, betook himself to Rome, where Honorius I,
on June n, 628, granted him a charter of freedom in
these plain terms, " No bishop shall rule, by whatever
right, in the aforesaid monastery." *• This sounds like
real exemption and may justly be called the first privilege
« Gregory I, Registrant Epp.
(Ewald-Hartmann), 1S91, IX, 203;
V. 4; VIII, 8; IX, 114; X, 3, 9;
XII. 6; XIV. 16.
46 Ibid., VIII, 17; cfr. V. 49;
III, 3; VII, 10.
47 Arch. f. K.-R., 1906, p. 314;
but Reg. IX, 16 is not to the point.
46 Reg., c. 64.
40 Cfr. 1 '-.',! Bertulfi, n. 6 (Migne,
87. 1063); Jaffe, Regesta Pontiff.,
cJ. 2, □. 2017,
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
26 RELIGIOUS
of its kind. The number of such privileges from the be-
ginning of the seventh to the middle of the ninth century
is small, though some English and Frankish monasteries
were given extensive exemptions. Weremouth and
Mclmesburg D0 received such from Scrgius I (687-701)
and Fulda51 from Zachary I (741-752). The latter
exempts the foundation of Sturmi from every foreign
jurisdiction and subjects it to that of the Apostolic See.
3. The ninth century, and especially the pontificate of
Nicholas I (858-867), witnessed an increase in the num-
ber of privileges granting exemption to monasteries.
Forty-nine such privileges were given from 855 to 900
to different Frankish monasteries. As has justly been
pointed out, there were good reasons for seeking and
granting such papal exemptions.52 For during that pe-
riod of internal strife and feudal struggles the secular
powers could offer but scanty security and protection, and
the advocati or protectors whom Charlemagne set over
the monasteries as lay-lawyers and guardians, often be-
trayed their proteges and ransacked the monastic prop-
erty. Furthermore, there was a feature peculiar perhaps
to Frankish, or let us say, Germanic soil, viz. : the idea of
absolute landozvnerskip, which claimed full and inde-
pendent control over a church or altar built on the ground
of the owner. Hence more than one monastery was in
the hands of the king or of a bishop or vassal upon whose
land the monastic church with the monastery had been
built. Although this right claimed by the owner was
directed chiefly to the temporal administration, yet it
gradually led to interference in spiritual rights, especially
the election of superiors, and thus jeopardized the free
P
"\
BO Jaff6. /. c, nn. 2106. 2140. ine: it is contained in Mifne, B9,
81 This privilege, formerly doubted, 954-
is now generally admitted as genu- 01 Arch, f. K.'R., 1906, p. 635.
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
INTRODUCTION 27
a
election of abbots." Wc said this feature was perhaps
peculiar to Germanic soil. The Celtic race of Ireland
shows a similar development, — namely, a dual system of
tribal claims. For we find, says Bury,54 " that in some
cases the proprietor did not make over all his rights to
the ecclesiastical community which was founded on his
estate, but retained, and transmitted to his descendants
a certain control over it, side by side with the control
which the abbot exercised." Besides, there were monas-
teries in which a direct family right of inheritance to the
abbey was established, so that the abbot could be chosen
only from the founder's kin. Such a system was ill-fated
and especially ill adapted to Benedictine government.
Lastly, more than one bishop, either princely landlord or
mere Ordinary of a diocese, who, being protected by the
brachium saccularc, wielded almost absolute power, did
not scruple to attack the property and quiet life of the
monks,55 who were esteemed by nobles and peasants alike.
The history of Cluny bears out this statement
4. Having mentioned these historical facts, we are
ready to grasp the tendency of monastic bodies seeking
the protection of St. Peter (i. e., the Apostolic See),5" —
a formula occurring in papal privileges ever since the
beginning of the tenth century. The regesta sometimes
exhibit entries like this: " monasterium tuendum suscipit,
bona et privilegia confirmat, iura defendit." In most of
these briefs a penal sanction is added against the violators
of the papal injunction. Furthermore a census or trib-
ute, five or two soldi,67 or a byzantinum, or some other
63 Loening. Geschichte des contain Mass- formularies such as:
dculichen Ktrchenrechts, 1878, II, "Contra episcopos mate agentes,"
37.J f. or simply: " Contra malos episco-
64 Life of St. Patrick, 1905, p. pos."
174 f. oojafff, /. c., a. 3466 and passim.
SB Ancient monastic Icctionaries 67 The value of a solidut, if of
".
§le
£ * ^ ^ -J,-. Original fro m
UNIVERSITY OF WISCONSIN
a8 RELIGIOUS
kind of money, was sometimes (not regularly) imposed
on the monasteries which were placed under papal protec-
tion. The ratification of the monastic property was given
both in general terms and by an enumeration of single
possessions. Sometimes the briefs contain a description
of the site and the name of the original donor.
As to the privileges granted by these papal constitu-
tions, there is no uniform and constant tenor or formula,
at least up to the time of Alexander III (i 159-81). But
it is safe to say that most of the privileges contained the
right of freely electing the abbot, which was of paramount
importance at a time when investiture became dangerous.
Occasionally exemption from the coercive power of the
bishop was explicitly stated in terms like these : " ill
nullus in ipsum monasterium audeat et pracsumat senten-
tial excommunicationis inferred or, "a nullo possint
interdict vel excommunicato nisi a Romano PontiHcc." "
Such a formula as this: " ut monasterium in nullo alicui
nisi tantum apostolicae ecclesiae respondere teneatur et
ab otnni alia jurisdictions et subjectione libcrum sit et
exemptum," must be taken to mean full exemption. In
some privileges, e. g.f one granted by Pope Marinus (942-
946), we also read of exemption from the duty of attend-
ing the diocesan synod.0"
5. Fully to understand the sometimes heated contro-
versies between bishops and abbeys we must consider two
more features which bear more or less directly on the
question of exemption: tithes and pontificals. Ever since
the sixth century tithes were enforced and formed part
gold, would have been about $5.30, Justinian, is nothing else but a gold
but othert (Hodglcin. Italy and Hrr soMdu*.
Invaders, I, 778) give it only as 08 Joffi, I. c, nn. 3800, 4420;
S3.00 or twelve shillings; cfr. also Migne, 137, 334; 143, 1327-
I*n Cinge. Glossariutn, s. v. "Soli- 69 Jaffe\ t. e.. nn. 3624. 3035;
dus "; the bysantinum introduced by Gattula, Hist. Cass., I, 94.
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
INTRODUCTION 39
of the episcopal or ecclesiastical revenues which the faith-
ful were obliged to pay to the church.60 It is a very inter-
esting canonical question whether they were paid to the
church or to the altar. This was an issue at the time
of Abbo of Fleury (+1004). as we learn from his
writings. If these * dimes " were given to the churches,
the monks, as proprietors of the same, could legally claim
them, and were sometimes even authorized to do so in the
papal briefs.81 But if the donor's intention could be
proved to be directed exclusively to the altar, the tithes
were supposed to belong to the bishop, as its consecrator.
This latter view was defended by Arnulf, bishop of
Orleans, and some of his followers, but justly rejected
by Abbo of Fleury, who calls the claim of the bishops
a " modern heresy " and an " egregious pretext " for giv-
ing the offerings of the church to the horses and dogs of
lay people, instead of to the monks. He also remarks,
most reasonably, that a church without an altar is no
church, but a common house.62 Abbo gained his point
with the Capets, and also with Pope Gregory V, a zealous
promoter of Clunian reform. As noted above, the right
to the tithes was often expressly defined in the bull of
exemption.
The other bone of contention was the pontificals.
The reader should remember that the abbots were at
first, in fact for centuries, not endowed with the priestly
character, and hence to speak of pontificals for the first
three centuries, up to the beginning of the ninth, would
be an anachronism. However, Pope Eugene I, in a
synod held at Rome in 826, ordered that the abbots
60 The synod of Macon, 585, can. fli For Cluny, cfr. Mignc, 151,
5, ordered their payment under 291, 485 f.
threat of censures, and later synods B2 Ep. ad C, tn Migne, 130.
and royal capitularies enforced 440 ft.
them.
1 by Google
j ^ riginalfrom
UNIVERSITY OF WISCONSIN
3o RELIGIOUS
should be priests in order that they might be able to
" heal the sins of their brethren." fl3 Here jurisdiction
in foro interno is plainly meant. But Fleury received a
more extensive power from Pope Benedict VII (974-
983), viz., that of absolving men and women of the
order.64 About the same time we hear of papal privi-
leges directly touching the right of pontificals. First,
indeed, negatively rather than positively. Thus conces-
sions were made that the diocesan bishop could perform
pontifical functions only at the direct invitation of the
abbot,flB or that the abbot might invite any bishop to
perform them, provided he was no heretic or schismatic,
or that he might be blessed by any bishop.00
As to the right of pontifical dress we first read of
dalmatics and sandals being granted by John XIII (965-
972) to the abbot of St. Vincent of Metz.07 The gloves
or chimticae were added in a privilege of Cielo d'Oro
(Pavia) for "the honor of St. Peter" and "the most
holy Augustine whose relics were there preserved." The
Abbot of Brevnow (Bohemia) in 993 received the privi-
lege of using mitre, gloves, sandals, maniple, and belt.88
The same right was granted to the abbot of Reichenau,
together with the prerogative of being consecrated more
cpiscopali by the Pope.0B
Thus pontificals began to be given to abbots in the last
decades of the tenth century. The privilege became more
frequent in the tenth and common in the twelfth century.
That the bishops were not too highly pleased with this
development we know from the chroniclers, one of whom,
03 Can. 27, Man si, Coll. Cone, Pavia. A. D. 986); 3764 15. Salva-
XIV. 1000. tore. Pavia. A. D. go6>.
84 Jaffa, n. 3803; Sackur, Die «7 Jaffa, ed. i, n. 3869, n. 2900.
Cluniazcnscr, 189*. II, 37J f. «s Jaffa, n. $B*G, n. 2946 (1 ed.).
OB Jaffa, n. 3907 (FuMa, A. D. «i> Hermann us Contractus, Chro-
999). nka ad an, 1032, Mignc. 143. a5J-
an Jaffe, o. 38*6 (Ciclo d'Oro,
>Ie
/" * ^ v J„ Original fro ni
UNIVERSITY OF WISCONSIN
INTRODUCTION 31
Herman the Lame of Rcichenau, tells us 70 that the bishop
of Constance, Warmannus, protested to the Emperor
Conrad II so long and vigorously that the abbot was com-
pelled to deliver the papal bull together with the pontifical
insignia to be burnt on Holy Thursday, 1033. Cluny
had a fight with the bishop of Macon for many years,
and some bishops went so far as to deny the validity of
such papal privileges.
6. However, all this resistance proved useless. In the
Xllth century papal protection was granted not only to
single monasteries, as had been the case in former cen-
turies — Cluny being the sole " order " which was exempt
as such — but also to entire congregations, for instance,
those of Vallombrosa,71 and Camaldoli.72 This same cen-
tury is perhaps the most important for the historico-
canonical investigation into the meaning of exemption,
which now enters the decretals. The subject is not free
from controversy. It cannot be denied that the regulars
sometimes stretched the papal protection further than the
grantor had intended, wherefore the Roman Court was
more than once asked what the papal protection included.
Many monasteries which " delivered " 73 themselves to
papal protection, generally, though not always, paid a
certain tax or tribute (census), which was regarded as
an indication (indicium) that they were under papal pro-
tection, but not that they were papal property, in the sense
of private property. The relation between such monas-
teries and the papal Court was similar to that between
a private proprietor and the State (eminent domain).
In many briefs recurs the formula : " ad indicium per-
TO Chronica (Migne, 143. '35)- 73 This was called traditio, and
71 Migne, 200, 569, 1067; Jaffe\ the monasteries thus delivered were
/. c, nn. 4053, 8428. called monasteria Iradita or com-
T2 Mittarelli, Annal: Camaldut., mendata.
II, App. 236.
Go >gle
I , Original fro m
UNIVERSITY OF WISCONSIN
33 RELIGIOUS
ceptae a Rotnana ecclesia libertatis (or protectionism or
iuris or proprietatis), bisancium unum quotannis Latcra-
nensi palatio pcrsolvetis." What does that "indicium
libertatis" mean? was asked of Alexander III. He an-
swered the question in a well-known decretal,74 in which
he says that, as not all monasteries placed under the spe-
cial jurisdiction {iuris) of Blessed Peter pay an annual
tribute, so neither are all the monasteries which pay that
tribute free from episcopal jurisdiction, and therefore
the wording of every privilege must be weighed, so that
every church which pays tribute and is under the special
jurisdiction of Bl. Peter and pays the annual tribute as
a token of the liberty received, may be looked upon as
exempt; whereas, on the other hand, a church which
simply pays the annual tribute as a token of the protec-
tion it receives is not eo ipso to be considered free from
the jurisdiction of the Ordinary." In order to under-
stand this decision we must remember that in the Xllth
century a distinction was made at the Roman Court be-
tween specialis tutela and simple tutelage. The former
was connected with the clausula added in the privileges :
" salva sedis apostolicae auctoritate," whilst the privi-
leges for simple tutelage had the clause: "salva sedis
apost. auctoritate et dioccesani episcopi canonica iustitia."
From this it follows that there were three kinds of reli-
gious bodies: (a) such as had no papal tutelage or brief
at all, and these were very few; (b) such as enjoyed the
papal protection, but were nevertheless more or less sub-
ject to the Ordinary's jurisdiction, and finally (c) such
as were under the special tutelage of the Apostolic See
and therefore exempt from the coercive power, espe-
cially of the diocesan bishop. The answer given by Alex-
ander was authentic, but not novel, as some have
»*C. 8, f, V. 33; cf. c. 14, i b; c. 10, 6\ V, j.
( "lAf-uiL-* Original from
/^.jOO^IL UNIVERSITY OF WISCONSIN
INTRODUCTION 33
claimed.78 For its obvious meaning is simply to warn
the religious not to read more into the text of the papal
brief than the legislator would naturally grant, and to
give the legates a key to the interpretation of papal docu-
ments. A similar decision is that of Boniface VIII, who,
instead of using the term specialis, says that the document
must treat " principaliter" of exemption.7* This again
means that the whole tenor of the papal privilege must be
examined, not only the terms tutela, protectio, libertas,
etc.
7. Such is the theoretical aspect of exemption as we
find it in the Decretals, which, however, barely touch its
extent. The First Lateran Council (1123) laid down
general rules governing the relation between diocesan
bishops and regulars living in their territory. Three
canons especially regulate that matter. Abbots and
monks are not allowed to administer the Sacraments of
Penance and Extreme Unction, nor to visit the sick, nor
to say Mass publicly ; the consecration of chrism, holy
oils and altars, and the ordination of clerics belong to
the diocesan bishop; religious priests in charge of souls
must be appointed by the Ordinary, to whom they must
give an account of their work and of what belongs to the
bishop; whatever services or tributes the monasteries
were wont to render to the Ordinary since the time of
Gregory VII, they must render also in future ; nor does
the prescription of thirty years hold good for abbots or
monks." In another canon (not found in all editions)
subjection and obedience to the bishops as their teachers
and pastors is inculcated for the monks as a paternal tra-
Ution 11 given
TSSchreibcr. /. c, I, 141 ff.; cfr. 78 C. 10, 60, 1, 7-
Studien O. S. B., 1011 (Vol. 32), 77 Hami, Coll. Cone, cc. 17-19,
p. 6oj IT., where a correct interpre* Vol. XXI, 385 f.
jle
£ * ^ .. -J,-. Original from
UNIVERSITY OF WISCONSIN
34 RELIGIOUS
dition.78 This canon embodies the idea of St. Bernard,
who was not inclined to favor exemption. Yet it was
his order that some years after his death received most
extensive privileges. Urban III granted the Cistercians
of Clairvaux absolute freedom from the coercive power
of the bishop, and other popes granted them the pre-
rogatives of calling in any Catholic bishop for pontifical
functions.79 Similar privileges were granted to other
monasteries.
It was but natural that the military orders (the Knights
of St. John, the Maltese Knights, the Knights Templars,
etc.), should, especially during the time of the Crusades,
be greatly favored by the popes, who granted them exten-
sive exemptions, in which even their oblates shared.80
8. Exemption became more widespread and hotly con-
tradicted when the great Mendicant Orders arose. It lay
in their very nature that their activity should extend to
people and clergy alike, and that they should come into
contact with the diocesan bishops. Their labors in the
pulpit and in the confessional required approbation either
by the Ordinary or by the Holy See. The latter decid-
edly favored the Orders because they were true reform-
ers, and first granted them the old privilege of exemption
from the coercive power of the Ordinary by deciding
that no episcopal interdict was to touch the churches of
the Mendicants,81 that the excommunication of a religious
by his superior was to be acknowledged by the bishop,*-'
and that absolution from censures imparted by religious
superiors to their subjects was valid without any further
interposition.83 These privileges, and especially that
|M
Tfl Ibid., col. 300. Bi Potthast, Regesto Pont. Rom.,
T» Jaffe, nn. 9728, 9756. 1874, I, n. 6808.
80 Archn/. jUr K.-R., 1907 (87), 82 Ibid., n. 7»33-
p. 270 ff- BS ibid., n. 7901.
,1,., Original fro m
UNIVERSITY OF WISCONSIN
>gk
INTRODUCTION 35
granted by Martin IV ("Ad fructus vberes" Dec. 13,
1281) provoked opposition on the part of the higher and
lower clergy. This document84 granted to the general
and the provincials of the Franciscans and Dominicans
the right to examine and approve by Apostolic authority
th*ir priests for preaching and hearing confessions, with-
out interference from any bishop or parish priest. This
general privilege was limited by Boniface VIII and
Clement V to the provinces and cities where the Mendi-
cants had settled, and required them to obtain the per-
mission of the local prelate or pastor.80 But the validity
of confessions was nowhere affected.86 The same de-
cretal enacts the freedom of burial, not only for the
Mendicants themselves, but also for those who wished to
be buried from or in their churches or cemeteries, pro-
vided, however, that the quarta funeris was paid to the
parish priest.
9. Thus, up to the Council of Trent, the chief aim of
exemption may be described as withdrawal of religious
from the punitive or coercive power of the diocesan Ordi-
nary.67 For the monasteries or congregations of the
Benedictine Order another point was of paramount im-
portance, namely, that die freedom of election, as en-
joined by the Rule, should be guaranteed by the papal
power, and we find this point insisted upon in nearly all
the privileges. The exercise of pontifical functions and
the right of tithing were also mentioned among the privi-
leges granted by the Holy See, as well as the prerogative
to call in any Catholic bishop to perform the pontifical
functions of consecration and ordination.
However, these briefs of exemption were not always
MIML, Vol. II. n. 21821: Be C. 2, Clem. Ill, 7, de iepul-
" genrraii rt pr ovine xalibus." turis.
•5 Cfr. c 13, X, V, 38. 87 Schreiber, I. c.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
36 RELIGIOUS
of the same extent: some were wider, some narrower,
and hence the bearing of each had to be judged from the
wording of the text. At first, as we have noted, such
privileges were, as a rule, granted only to single monas-
teries. But the centralized organizations of Cluny,
Camaldoli, Vallombrosa, and Citeaux paved the way for
the still more centralized Orders of the Mendicants, who
thus found the soil prepared for a fuller and more exten-
sive exemption. But a " cut and dried " notion of exemp-
tion cannot be inferred from the papal documents of that
period, as is evident from the quarrels between the secu-
lar clergy on the one hand and the regular clergy, espe-
cially the Mendicants, on the other, which arose every-
where in connection with the Constitution of Boniface
VIII, "Super cathedram" (1300).** Bishops, parish
priests and university professors tried to curtail the privi-
lege of exemption, whilst the regulars vigorously fought
for their rights. Both sides were guilty of excesses.
The Council of Constance and Basle drew up a series of
propositions aiming at a restriction of exemption, but
without success. The same (fifteenth) century witnessed
the rise of new monastic congregations devoted to reform
of the religious life, and these were fully exempted by the
popes. Thus Eugene IV granted to the brotherhood
founded at St. Justina of Padua (1412) complete exemp-
tion from the jurisdiction of the Ordinaries, and from all
charitable subsidies and other like obligations.'19 Sixtus
IV, a former General of the Franciscans, showed great
favor to the Mendicants,00 especially the Friars Minor to
whom, in the so-called "Mare Magnum Minorum"
88 C 2, Extrav. Comm., Ill, 6, do 90 Arch, f. K.R., 1907 (87). p.
■cpulturis. 626; Pastor, Gcsckichtt dtr Popsie,
8B June 30, 1436. II, 536.
jle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
INTRODUCTION 37
(Aug. 31, 1474) he renewed and ratified all the privileges
granted them by his predecessors.
10. The Council of Trent strove to cut off some exag-
gerated prerogatives, without, however, touching the sub-
stance of exemption. A distinction was, moreover, drawn
-
between cases in which the regulars were subject to the
Ordinary as such, and cases in which they were bound to
obey him *'as delegate of the Apostolic See." The
former class comprises chiefly matters of ordination, hear-
ing the confessions of seculars, the publication of cen-
sures and the observation of feast-days, the punishment
of regulars who were scandalously delinquent outside
their monasteries, preaching and the promulgation of in-
dulgences." There were but few cases in which the
regulars were subjected to the Ordinary as delegate of
the Apostolic See.02 It is noteworthy that the Council
refused to decide that all regulars, i. e.t religious with
solemn vows, — only such existed at that time, with the
exception of part of the Society of Jesus — were ipso iure
exempt, or to define what exemption really implied. The
Council seems to have taken for granted that most of the
regulars were actually exempt and left the quaestio iuris
untouched. As a consequence, the ancient controversies
between bishops and monasteries about exemption contin-
ued after the Council. The Austrian bishops discouraged
exemption, and the Bishop of Constance refused to ac-
knowledge the written documents of Swiss monasteries
which claimed exemption. Besides there are many small
convents (parvi conventus) in which the regular discipline
Bl Sew, 33, c. a, de ref.; sees. 23, 02 Ses». 5, c. 1, de rcf ; sess. 25,
c. 15. dc ref.; less. 35, c. 12, de or. 5, 9, de reg.; seas. 6, c. 3, de
reg.; ku- 25. c. 14. de re*. ; sess. 6, ref.; cfr. Bnchofen, Compendium
e. 3. de ref.; sew. 5, c. a, de ref.; Juris Reg., p. 327 t.
•ess. at, c. 9, de ref.; Bcncd. XIV,
Dm Syn. Diotc, IX, 15, 4 ff.
ogle
/""* ^ v J„ Original from
UNIVERSITY OF WISCONSIN
38 RELIGIOUS
had declined and which, therefore, seemed to invite in-
terference by the bishop. Urban VIII and Innocent X
decreed that convents in which at least twelve religious
could not be maintained were subject to episcopal visita-
tion, correction, and jurisdiction, the bishop in such cases
acting as delegate of the Apostolic See.03 However,
these papal decrees affected mostly houses existing in Italy
and the adjoining islands; elsewhere the houses of regu-
lars continued to enjoy exemption, as far as the Triden-
tine laws permitted and the bishops did not interfere.
Leo XIII ("Romanes Pontifices," May 8, 1881.) allowed
the regulars living in England and the U. S., although
there be but two or three in a missionary residence, to
be exempt in all matters not pertaining to the care of
souls.
This, then, is briefly the history of exemption, which
has now received at last a formal acknowledgment for
all regulars, i. e., members of religious orders who take
solemn vows and are, in the majority at least, of clerical
rank.
H. Before concluding this chapter it may be useful
to discuss the view of the glossators of Gratian's Decree
concerning exemptio a lege dioecesana and exetnptio a
lege iurisdictionis. The former was vindicated to the
monasteries, but not the latter. Exemption a lege dioe-
cesatta, according to the glossators, comprises immunity
from taxation, cathedraticum or the third or fourth part
of the tithes, and freedom from being called to the dio-
cesan synod, whereas the lex iurisdictionis comprises the
right of ordaining the clergy and consecrating altars,
churches, and virgins, the power of correction and of
a
c
fit Urban VIII, June fti, 16*5; 1654; Benedict XIV, Dt Syn., Ill,
Innocent X, " Injtaurandae," Oct. 2, 1 ff.
15. 165a; " Ut in parvu," Feb. 10,
Q
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
pi
INTRODUCTION 39
suspending and judging criminal and civil cases.94 The
reader may judge for himself whether this distinction
has any foundation in the privileges granted by the Apos-
tolic See. These glossators (Huguccio, Ioannes Teu-
tonics, etc.) must have read very few papal briefs on
that subject. Abbo of Fleury, for instance, never denied
that the monasteries were obliged to pay the tithes estab-
lished by law or custom for their churches, but his mon-
astery was exempt in many other respects, especially from
the obligation of having its clerics ordained by the dio-
cesan Ordinary. Besides, the main element of all exemp-
tion privileges was freedom from the coercive power of
the bishops. Nevertheless, the distinction explained
above has been retained by later canonists, — a remark-
able example of the power of imitation.
MCfr. the Gloss on c. I, C. 10, C. 18, q. a; Benedict XIV, Da Syn.
q. i; on c. 34, C. 16, q. 1; c. 6, Dioic, I, 4, 3.
jle
f|rt Original from
UNIVERSITY OF WISCONSIN
■
COMMENTARY
After these preliminary notes we now continue our
commentary. The first five canons of Part II treat of
the definition of the religious state, of the different terms
occurring in the Code, and of the effect the Code has
upon the rules and constitutions of religious and prece-
dence among them.
definition of the religious state
Can. 487
Status religiosus seu stabilis in communi vivendi
modus, quo fideles, praeter cornmunia praecepta, evan-
gelica quoque consilia servanda per vota obedientiae,
castitatis et paupertatis suscipiunt, ab omnibus in
honore habendus est.
Here we have both a definition and an encomium of
the religious state. The religious state is a permanent
mode of living in common, by which the faithful, besides
obeying the commandments, also observe the evangelical
counsels embodied in the vows of obedience, chastity, and
poverty. The encomium or praise of that state is ex-
pressed in the words : it is to be honored by all.
To begin with the latter, it is but truth to say that it
has been the constant and universal teaching of the
Church ever since the religious state commenced to exist,
that it is deserving of honor. St. Jerome calls the monks
40
'■-.
§le
Y ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 487
41
a
N
and virgins n the flowers and ornaments of the Church." *
His controversy with Jovinian is well known.3 St. Au-
gustine extols the monastic life as the best known in the
universe.8 Cassiodorius, the once powerful statesman
under Theodoric the Great, says of it : * "A heavenly
life upon earth, an imitation of the faithful angels, to
live spiritually in the flesh, and not to love the vices of
the world, a truly pleasant paradise, in which grow so
many fruits of virtues." Alcuin (804) exclaims; "O
happy life of the monks, pleasing and appeasing to God,
and loved by the angels."5 St. Bernard of Clairvaux
compares the monastic orders to the angelic choirs and
calls the religious life the shortest route to heaven."
But there were also dissentient voices. One was that
already noticed, of the heretic Jovinian. In the thir-
teenth century violent attacks were made on the religious
state by a powerful and influential party, of which Wil-
liam of St. Amour was the recognized leader.7 These
new opponents, however, were, at least theoretically, si-
lenced by St. Thomas of Aquin* who wrote several
smaller treatises against them and set forth the theologi-
cal viewpoint with great force in his immortal " Summa "
(Qa Qae). St. Bonaventure employed his truly seraphic
pen against the adversaries of the Friars Minor.0 Wil-
liam's errors were condemned by Alexander IV in more
1 Cf. Mi go p. P. L.. 33, 489.
2 Ibid., 23, 211 ft*.; however, ex-
aggerations occur in St. Jerome's
writings; cfr. Bardenhewer-Shahan,
Patrology, 1908, p. 465.
a Mignc, P. L., 37, 37*. 1*77.
4 Ibid., 70, 734.
6 Migne, 100, 298.
« Tbid., i%3, 91a; 183. 595.
T Procter, O. P., The Religion*
State try St Thomas Aquinas, Lon>
don, 100*, p. III.
8 S. Thomas, Contra Rrtrahtntes a
Religionit Ingressu; Contra Imfiug-
nantes Dei Cultum (Paris ed, t.
XX; English by Sands & Co.. Lon-
don, 1903).
» Liber Apol. in eos qui Otdini
Mm. Adversantur ; Exfositio in Reg,
Fratrum Mm,; De Paufertale
Ckristi contra Cuil. (opfi., Lugd.,
1668, t. VII).
§le
Original fro m
UNIVERSITY OF WISCONSIN
42 RELIGIOUS
than one Constitution.10 The diabolical errors of Wiclif
were reprobated by Martin V and the Council of Con-
stance.11
The Pseudo-Council of Pistoja (1786) could not re-
frain from attacking the monastic or religious state,
against which it issued several decrees, which were pro-
scribed by Pius VI in his " Auctorem fidei," Aug. 28,
1794. The Cramers of these condemned decrees kindly
permitted one order, viz., that of St. Benedict, to exist,
but pruned it to suit their Febronian-Josephinistic taste,
allowing a certain amount of psalmody and a certain re-
stricted capacity for the sacred ministry, abrogating the
distinction between choir monks and others, rejecting the
perpetual vow of stability, etc.1*
We cannot help touching the attitude of certain follow-
ers of "Americanism" which was rejected by Leo XIII
in his letter to Cardinal Gibbons, " Tcstem benevolcntiae"
Dec. 25, 1898. As this papal document clearly shows,
the depreciation of the so-called passive inriues, such as
obedience and humility, led the champions of that unec-
clesiastical tendency to belittle those congregations which
are devoted to the contemplative life, and to underesti-
mate the religious state as such, which, they maintained,
is not in harmony with the spirit of our times, inasmuch
as the vows restrict human liberty too much and are
adapted more to weak than to strong minds. All this,
says Leo XIII, is opposed to the very nature of liberty,
which is fostered by the religious vows and raised into a
higher sphere; and contrary to the teaching of history.
He calls attention to the fact that the first missionaries
to the United States were religious, and that a statue has
been publicly erected to one of them, Pere Marquette.1*
10 Dcnzingcr, Enchirid., n. 380. 18 Denzingcr, /. r., nn. 1443 ff.
U/6id., 490-511; sjof., 574. 665. uCf. Eecl. Rtvicw, 1899, Vol,
< ",AnnL' Original from
/^.jOO^IL UNIVERSITY OF WISCONSIN
CANON 487 43
The Code's definition of the religious state comprises
three elements : stability, vows, and the common life. Be-
fore entering upon a discussion of these points we note
that the Code says : " quo fideles" ** Monks," solitaries
or ascetics, were and are found in more than one pagan
race, as among the Buddhists." The essential difference
between non-Christian and Christian asceticism lies, not
so much in their extrinsic form, — for both tend to self-
perfection by some kind of penance — but in the differ-
ence of their specific aims. Non-Christian asceticism
aims at self-annihilation, Christian asceticism at love, as
St. Thomas 1S so admirably states. " The Christian ideal
is frankly an ascetic one, and monachism is simply the
endeavor to effect a material realization of that ideal, or
organization in accordance with it, when taken literally
as regards its counsels as well as its * Precepts.' " ,a Be-
tween counsels and precepts there is a difference of de-
gree only, not of essence. For the end and aim of all
Christians and, in fact, we may say, of every human
being, is perfection, as Yahwe bade Abraham " walk
before me and be perfect." This perfection consists in
the love of God and men, which brings man to his eternal
goal. However, aside from the love attained by the
Blessed in heaven, there are diverse degrees of charity
which we earthly pilgrims may arrive at ; one is necessary
for salvation, and therefore a matter of strict precept,
whereas the other is merely a matter of counsel for those
who desire to approach the ideal of perfection possessed
by the Blessed. " Now it is in this effort that perfection
30, p. .'.'■''> 1.; Card. Gasparri also were found also among the Aztec*
..-.
refers to that document and Incas.
14Cfr. Aiken, The Dhemma of is Procter, /. c, Ch- II, p. 9.
Gotama the Buddha and the Gospel i« Cath. Encyct., X, 4S9 (Huddel-
of Jesus Christ, 1000; Idem in the ston, O. S. B.),
Cath. EncycL. III. 33 f. Ascetic*
jle
f ■ j , Original fro ni
UNIVERSITY OF WISCONSIN
44 RELIGIOUS
in this life consists, to which we are invited by the coun-
sels." 1T This effort is a striving after perfection ; but
where and how is it to be made ?
1. In a stable condition or state, for state implies a cer-
tain position which is not easily changed or moved, but
quiet and favorably disposed. This can be brought about
in movable and changeable man only by assuming a vol-
untary obligation to remain in the state once chosen.18
Therefore it is absurd to say that religious have abdicated
their freedom and natural liberty. The very act by
which they enter the religious state is a voluntary one,
performed with full deliberation. But it is also unrea-
sonable to deny, with Bouix,19 the necessity of the obli-
gation insisted upon by St. Thomas. For no other tie is
imaginable — except physical coaction, which has entirely
ceased — that would bind a man to a state of life not
prescribed by the Lord of life and death.
This state is called the religious state. Religion signi-
fies, not any kind of worship, but the worship of God.
It is that virtue by which man offers service and homage
to his Creator. Therefore those are strictly called reli-
gious who give themselves entirely to the divine service,
as a burnt offering so to speak, — a holocaustum.20
2. This offering is made by taking the three votvs of
poverty, chastity, and obedience. A vow is a promise
made to God of a thing or action which we are not
obliged to offer at all, or at least not to the extent or in
the form promised. It has the character of a stable
promise, and therefore is apt to produce or ratify the
state chosen. The object of a vow is something not
it Procter, /. c„ Ch. 6, p. 17; 10 De lure Regutarium, 1857, I,
St Thomas, Summa Tkeol., m aae, p. 7.
q. 184. 20 Summa Theot., zt a»e, q. i86>
IB Summa Theol., ,:.i, .sac, q. 183, a. 1.
a 1.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 487 45
merely good and lawful SI in itself, but better or more
noble. Lastly, a vow is something sacred because it par-
takes of the virtue of religion and has God himself for
its direct aim and object. From these qualities follows
the binding or obligatory character of a vow. It is a
promise made to God with the special intention to do Him
homage, and the man who makes this promise has the
firm will to keep it unless prevented by unforeseen ob-
stacles. That the three vows mentioned really and pe-
culiarly belong to the religious state may be seen from
what St. Thomas " says about them. They remove the
obstacles that impede the road to perfection or love of
God and men: (1) poverty, the disorderly inclination to
gain and hold earthly possessions, (2) chastity, the im-
petuous aspirations of the flesh and human ties, and (3)
obedience, the powerful love of oneself. Of the three,
that of obedience belongs most peculiarly to the religious
life, since by it man sacrifices his own will, and therefore
everything, because obedience includes both poverty and
chastity, for it is by his own free will that a man makes
use either of his body or his goods.28 From this we may
understand why St. Benedict did not explicitly mention
poverty and continence as special vows in his rule, for
they are, partly at least, included in obedience.
3. But though a religious state which enjoins the three
vows may and did exist among the ancient hermits, yet
now-a-days the Church limits this state to a life in com-
mon, because a solitary life, unless assumed after due
preparation or by a special divine grace, is full of dan-
gers and illusions. Life in common, then, (cenobitic
t\ The vow of Jephta <Ju& n. 22 Sum ma TheoL, 2a 2ae, q. 186
30) was lawful in itself but too (Procter, /. c, Chs. 7-11, p. 18 ff.).
indiscriminately made, its fulfillment 21 Ibid., <j. 188, a. 8.
— the killing of hii daughter — was
simply unlawful.
i|e
Original fro m
UNIVERSITY OF WISCONSIN
Q
■--.
46 RELIGIOUS
life), means a stable mode of living under the same rule
and roof, although all the members may not be dwelling
in the same convent or monastery or provincial house.
Canon 488
-
In canonibus qu» scquuntur, veniunt nomine:
i.° Religionis, socictas, a legitima ccclesiastica au-
ctoritate approbata, in qua sodales, secundum pro-
prias ipsius societatis leges, vota publica, perpetua
vel temporaria, elapso tamen tempore renovanda,
nuncupant, atque ita ad evangelicam perfectionem
tendunt;
2.0 Otcl in is, religio in qua vota sollemnia nuncu-
pantur; Congregationis monasticae, plurium mona-
steriorum sui iuris inter se coniunclio sub eodem Su-
per iore ; religionis exemptae, religio sive votorum
sollemnium sive simplicium, a iurisdictione Ordinarii
loci subducta ; Congregationis religiosae vel Con-
gregationis simpliciter, religio in qua vota dumtaxat
simplicia sive perpetua sive temporaria emittuntur;
3.0 Religionis iuris pontificii, religio quae vel ap-
probationem vel saltern laudis decrctum ab Apostolica
Sede est consecuta ; iuris dioecesani, religio quae
ab Ordinariis erecta, hoc laudis decretum nondum
obtinuit;
4.0 Religionis clericalis, religio cuius plerique so-
dales sacerdotio augentur; secus est laicalis;
5.0 Domus religiosae, domus alicuius religionis in
genere; domus regularis, domus Ordinis; domus
formatae domus religiosa in qua sex saltern religiosi
professi degunt, quorum, si agatur de religione cleri-
cal!, quatuor saltern sint sacerdotes;
6.° Provinciae, plurium religiosarum domorum in-
>ogle
v ,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 488 47
a
ter se coniunctio sub eodem Superiore, partem eius-
dem rcligionis constituent;
7.0 Religiosorum, qui vota nuncuparunt in aliqua
religione; religiosorum votorum simplicium, qui in
Congregatione religiosa; regularium, qui in Ordine;
sororum, religiosae votorum simplicium; monialium,
religiosae votorum sollemnium aut, nisi ex rei na-
tura vel ex contextu sermonis aliud constet, religiosae
quarum vota ex institute sunt sollemnia, sed pro
aliquibus locis ex Apostolicae Sedis praescripto sunt
simplicia ;
8.° Superiorum maiorum, Abbas Primas, Abbas
Superior Congregations monasticae, Abbas mona-
sterii sui iuris, licet ad monasticam Congregationem
pertinentis. supremus religionis Moderator, Superior
provincialis, eorundem vicarii aliique ad instar pro-
vincialium potestatem habentes.
This canon explains the terms which are used in the
Code in connection with the religious life.2* They are
the following:
1. Rcligio (institute) indicates a society, approved by
legitimate ecclesiastical authority, whose members strive
after evangelical perfection by observing the special laws
of that society and by making public vows, either per-
petual or temporary, the latter to be renewed when the
time expires.
2. Ordo (order) denotes a religious organization in
which solemn vows are taken. Congregatio monastica
is a union of several independent monasteries under one
superior. Religio exemfta means a religious organiza-
tion of either solemn or simple vows that has been vvith-
<
24 The translation of this canon by Very Rev. Fr. Staniilaui Woy-
ia, on the whole, taken from the wod, O. F. M.
Eccl. Rrv.t 1918 (Vol 58), p. 14* *-.
ioi >gle
k ,|Y> Original fro ni
UNIVERSITY OF V,'15CON5IH
48 RELIGIOUS
drawn from the jurisdiction of the Ordinary of the dio-
cese. Congrcgatio reliyiosa, or simply Congregatio, sig-
nifies a religious body in which only simple vows are
taken; these simple vows may either be perpetual or tem-
porary.
3. Religio iuris pontificii, or a religious pontifical in-
stitute, is a religious organization which has received
from the Holy See either approval or at least a dccretum
laudis. Religio iuris dioecesani, or a religious diocesan
institute, is a religious organization which has been insti-
tuted by the Ordinary and has not yet obtained a decretum
laudis from the Holy See.
4. Religio clericalis, or clerical institute, means a reli-
gious organization most of whose members are priests;
if they are laymen, it is called religio laicalis.
5. Domus religiosa, or a religious house, signifies the
residence of a religious organization. Domus regularis,
or house of regulars, is the house of an Order. Domus
fortnata means a religious house in which reside at least
six professed members, of whom, if there is question of a
clerical organization, at least four must be priests.
6. Provincia, or province, is a combination of several
houses of religious under one superior, constituting part
of a religious Order or Congregation.
7. Religiosi, or religious, are those who have taken
vows in any religious community ; religiosi votorum sim-
plicium, or religious with simple vows, are those who
have taken vows in a religious Congregation ; regulares,
or regulars, are the professed members of an Order ;
sorores, or Sisters, are women who have taken simple
vows ; moniales, or nuns, are religious women with sol-
emn vows, unless either by the nature or the context of
the canons the term is to be interpreted otherwise. There
are also nuns whose vows are by their rule solemn, but
oogle
Y ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 488
49
-■
have for certain countries been declared simple by the
Holy See.
8. Superiores maiores are the Abbot Primate, Abbots
who are superiors of monastic Congregations, Abbots
of Monasteries that are independent though belonging
to some monastic Congregation, the Superior General of
any religious organization, the Provincial Superiors and
their Vicars, and all others who have the same jurisdic-
tion as Provincials.
Some notes seem required. Religio is here taken as
part and parcel of the Christian religion, or religious
state, as in a sense signifying preeminently what religion
broadly implies, viz., worship or service of God. The
etymological derivation of religio is given by Cicero20
and adopted by theologians is from diligently treating
and, as it were, carefully rereading (rc-legere) the things
that pertain to the worship of God. Religion in the sense
of religious state, therefore, is nothing else but a concrete
and emphatic, nay, we may say, exclusive occupation with
divine things or at least things that have reference to
God, inasfar as man's perfection is thereby most securely
achieved.
But, since it belongs to the whole Church, a religio is
not to be thought of without the approbation of the legiti-
mate ecclesiastical authority. True, we do not read of
any formal approbation of the rules of St. Basil or St.
Benedict,28 but if they had not been in conformity with
the spirit of the Church, their existence would have been
not only precarious but short. In the eleventh and
twelfth centuries the founders of religious institutes
as Dt Natura Deornm, I. II, c a8: ao St. Gregory the Great {Dial.,
"Qui auiem omnia, quae ad cuttum II, 36) praises the rule of St Bene-
dcorunt pertinertnt, diligentcr r#- diet, but only ai an ecclesiastical
Iractarenl el tanquam relegertnt, writer; the bull alleged by wine ia
sunt dicti religion ex relegendo." apurious.
jle
Original from
UNIVERSITY OF WISCONSIN
50 RELIGIOUS
thought it necessary to seek the formal approbation of the
Holy See, and the fourth Lateran Council 27 and subse-
quent laws made this step imperative, — which does not,
however, mean that ecclesiastical approbation is required
by divine law.*8
Approbation involves two elements : an authentic judg-
ment and power conferred on the religious superior to
accept vows and receive members. The authentic judg-
ment, which is generally held to be infallible, at least
concerning religious orders and in its final stage, implies
nothing else but a declaration that the institute is becom-
ing, licit, and useful; or, as Suarez28 says, it is a kind of
canonization, by which the institute is declared holy. The
faculty is required, because the superior must act as a
public person or in the name of the Church, wherefore
the vows accepted by him are called public vows.
There are, however, different degrees of approbation.
Before stating the mode by which the Roman Court is
now wont to proceed, it is necessary to distinguish be-
tween orders and congregations. Orders, or organiza-
tions with solemn vows, are not easily approved now
unless they accept the rule of one of the ancient orders
as their fundamental code, to which they may add their
own constitutions.
Rule means the sum-total of the regulations which the
first founder gave to his community, whilst const it utions
arc additions or by-laws which modify or explain the
original code. Thus the various (fourteen) Benedictine
Congregations all obey the Benedictine Rule and, be-
sides, each has its own constitutions. Later orders, e. g.t
a
17 C. 9, X. Ill, 36: c un. 6°, IT, c. 15, n. a (ed. Paria, 1859, t.
Ill, 17; C, i, Extrav. Comm., Ill, XV, 19a).
11. 29 Ibid., n. 13 S.
28 Sure*. De Statu Religiose, L.
[ ■ J » Original from
UNIVERSITY OF WISCONSIN
L >ogle
CANON 488 51
the Jesuits and Barnabites, call their original rule by the
name of Constitutions.
Those modern Congregations which do not follow any
of the ancient rules have Constitutions, not rules. But
even if they follow a " rule," e. g., that of St Francis,
they must have constitutions approved by the bishop or
Holy See. As long as their constitutions are not ap-
proved by the Apostolic See, or have at least received the
decree of recognition [decrctum lattdis) from the same
authority, the institute is simply diocesan, subject to the
jurisdiction of the Ordinary. And it matters nothing
whether or not the members follow a rule already ap-
proved.
The Constitutions of a monastic congregation or of a
branch of a clerical order require the papal approbation,
but the procedure is not the same as for the approbation
of religious congregations. For the former send their
" Constitutions n to the S. C. Relig., which, after hearing
one or more consultors, returns them with its remarks to
the head of the monastic or clerical body concerned with
the clause: "ad tricnnium or quinquennium ad experi-
tncnti instar." When the time thus set has elapsed, ap-
plication for a further trial or for final approbation must
be made, whereupon the S. Congregation gives its deci-
sion.
In the case of religious Congregations with simple vows
the procedure I0 is as follows :
1. If the institute has only one or two houses, and no
constitutions properly so called, the sacred Congregation
sometimes issues a letter praising the institution of the
founder or the scope of the institute. This document is
nothing else but a recommendation and does not make
..-.
80 Normae stcundum quas S. C. probandis Novis Institutis votorum
EE. €t RR. procedure toltt in af- timplicium, Rome, 1901.
GrtruiL* Original from
UOglC UNIVERSITY QFWI5C0NSIN
■
52 RELIGIOUS
the institute a papal one. However, we would not deny
it the nature of a religious institute, provided episcopal
approbation has been obtained.
2. The decree of recognition or praise, decretum laudis,
is the first step by which the Holy See raises the institute
to papal rank. This decree is granted after the insti-
tute has spread sufficiently and given proof of its spiritual
and material vitality. To obtain the decretum laudis,
a) A petition 81 must be sent to the Sovereign Pontiff,
signed by the superior and his assistants, begging for
approbation. This petition must be accompanied by
b) Letters of recommendation from the Ordinary or
Ordinaries in whose dioceses the congregation has houses.
These letters should contain the opinion of the Ordinary
concerning the nature, utility, and work of the congrega-
tion as well as a request for its approbation and sugges-
tions as to desirable changes in the constitutions. Each
letter must be signed and sealed by the bishop and ad-
dressed to the S. Cong, of Religious.82
c) An accurate report must be made to Rome on the
foundation of the institute and its present condition, —
personal, spiritual, and material The personal report
must state the number of professed members, novices and
candidates, and if there is a distinction between members
(e. g., choir and lay members), how many there are of
each class; also the number of houses in the diocese or
dioceses. The spiritual or disciplinary report concerns
the manner of, and progress in following the Constitu-
tions,33 the novitiate, and any serious difficulties that may
have arisen with regard to the Constitution. The mate-
si Thii mast be written in Latin, S3 A detailed statement of the
French or Italian. government is not required, because
82 See i:.'i-:i'-r . Directoire Canon- this is supposed to be contained in
ique, translated by Lan slots. Hand- the constitutions.
booh of Canon Lam, 3rd ed., 1903.
jle
^ ,| ., Original from
UNIVERSITY OF WISCONSIN
CANON 488 S3
Q
rial or financial report must state the resources of the
institute, whether a dowry (dus) be required and how
much, whether there arc any debts, etc. This report
(under c) must be signed by the superior general, the
treasurer, and the secretary general, and the Ordinary
in whose diocese the mother house (domus princeps) is
located must add his testimony as to the truthfulness and
authenticity of the document.
d) Lastly, the Constitutions 84 as approved by the Ordi-
nary must be included in either Latin, Italian, or French.
At least twelve printed copies must be forwarded, because
the various consukors are each entitled to a copy.
After the S. C. of Religious has issued the decree of
recognition or praise, the Constitutions are not yet re-
garded as approved, but the institute is now under the
jurisdiction of the S. C. Rel., and no change is allowed
in the Constitutions. Before the Constitutions are ap-
proved, either on trial or definitively, the institute itself
is approved and generally also the Constitutions receive
an experimental approval ; but this is granted only after
a certain lapse of time, during which the Constitutions
should be tried, and a faithful report made as to the
practicability and efficiency of the same. During that
time the changes and modifications inserted by the S. C.
Rel. must be conscientiously followed and no changes
should be made. Finally, after several experiments and
a revision of the Constitutions according to the sugges-
tions of the S. G Rel., they are approved, whereupon
neither the superiors of the institute nor the Ordinary
of the diocese are allowed to change them. Note that
any liturgical book, or directory, or calendar, or book of
customs referred to in the Constitutions does not by vir-
S4lf the text is not printed, it permitted because it is the diplo-
should be typewritten. French is matic language of the Roman Court,
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
-
54 RELIGIOUS
tue of that approbation become " canonized " or for-
mally approved. For instance, a so-called " Caeremoniale
Monasticum " is not sanctioned by the approval of the
Constitutions. Books referring to the liturgy of the
Latin Church require a special approbation by the S. C.
of Rites.
It may be well to mention here what the " Normae " "
wish to see excluded from Constitutions submitted for ap-
proval.
1. No preface or introduction is allowed, nor any
historical notes or letters of endorsement or recom-
mendation except such received from the Holy See.
2. No quotations must be made from the Bible, the
Church councils, or from the works of the Holy Fathers
or theologians, much less may dogmatical or moral ques-
tions be brought in or doctrinal decisions cited, espe-
cially in matters of vows. Ascetic instructions and
exhortations, spiritual and mystical considerations, ques-
tions from manuals or ceremonials, are also to be
eschewed.
3. No reference is to be made to the office of bishops
and confessors, because the Constitutions are not written
for these; neither is mention to be made of the order of
study and life of the students, or of the detailed order of
daily exercises.
4. No mention is to be made of civil laws or magis-
trates, nor of the approbation by the government.
5. Minute regulations about the lower offices, such as
pertain to the kitchen, infirmary, or vestry, are to be
omitted.
6. Every term or expression which applies to insti-
tutes with solemn vows must be avoided for congrega-
tions with simple vows, such as regula, monasteriumt
« N. 16-33.
1 . Original from
'IC*
UNIVERSITY OF WI5CON5I
CANON 488
55
-
-■
moniales, instead of which must be used : constitutiones,
institution or domus, sorores, etc.
These three stages : simple acknowledgment or recom-
mendation of the intention of the founder and his scope,
the decree of praise, and formal approbation, are not al-
ways insisted on by the S. C. Rel., but sometimes the first
is omitted, because not asked for.80 But the decree of
praise and formal approbation of the institute or Con-
stitutions — the two may be combined — are always re-
quired, as the Code plainly states.
c) Lastly, note the phrase: vota publico, perpetua vel
temporanea: public vows, either perpetual or temporary.
Here a distinction betzveen vows is asserted, to which wc
may add the one between solemn and simple vows, as
this occurs in n. 2 of the same canon.
1. A vow or promise made to God is public if accepted
in the name of the Church by legitimate authority.87
Such an authority may be any ecclesiastic who is em-
powered by the Church to accept vows, either bishops or
religious superiors, acting with proper or delegated power.
Hence " public " here means not precisely notorious
(though this is generally implied, especially since tacit
profession is no longer admitted), but public in the proper
sense, as we speak of public authority. A private vow,
for instance, to make a pilgrimage, or not to marry, is
one made without the intervention of the Church. The
vows of poverty, chastity, and obedience, taken in a reli-
gious congregation, are considered public.
2. Public vows may be either perpetual or temporary.
They are perpetual if made without any time-limit and
accepted as such by the legitimate superior. Note that
the simple profession of members who pronounce their
aa Normae, n. 7.
87 Werna, lus Decrttalium, III,
n. 573 (ed. t, p. 586)
►ogle
Original fro m
UNIVERSITY OF WISCONSIN
56 RELIGIOUS
vows in a religious order involves only temporary (tri-
ennial)58 vows. Temporary vows are such as are made
for a certain limited term, for instance, three years.
They must be promptly renewed, for a congregation with
expired temporary vows would not constitute members
in the religious state.
3. In number two of our canon, an order is called an
organization in which solemn vows are taken, whereas a
congregation is defined as a religious body whose mem-
bers make only simple vows. Here we have the famous
and controverted distinction between simple and solemn
vows. Whence is it derived?
The distinction between solemn and simple vows was
known to Gratian 89 and the canonists that followed him.
Difficulties arose at an early date with regard to the bear-
ing of vows upon the validity of marriage. The ques-
tion was settled by Boniface VIII, who declared that the
solemnity of the vow was introduced by ecclesiastical
law, and what is called an invalidating impediment is pro-
duced only by the reception of sacred orders or by pro-
fession in a religious congregation approved by the Apos-
tolic See.40 This seems to mean that the authority of the
Church determines which vows are simple and which are
solemn. However, the Church would act blindly, as it
were, if there were no intrinsic distinction between the
two. Hence canonists 41 have endeavored to establish the
precise difference between solemn and simple vows, with
due regard always to the decision of Boniface VIII. St.
Q
*s Can. 574, | 1. vows were considered solemn; cfr.
3B Cfr. dictum ad c. 8, Dist 27: c. 20, X, III. 32.
those who simply take vows and 40 C. un. 6*. Ill, 15.
those whose vows are endowed with *> Cfr. Cath. Encyci., *. v.
the blessing of consecration, or who "Vow" (Vol. XV, 513, by Ver-
make religious vows; from which it meench).
may be inferred that all religious
jle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 488 57
St
Thomas *2 places the solemnity of the vow in a certain
spiritual blessing or consecration, in as far as this has
special reference to the service of God. Hence we may
say that the Angelic Doctor finds the difference between
the two kinds of vows not in the ceremonies or the ritual
as applied respectively in the administration of solemn
and simple vows, but in the interior, more perfect and
complete consecration to God, or, as a commentator*3
puts it, he does not speak of an accidental blessing or
consecration, but of an internal consecration, which im-
plies a more perfect and irretrievable surrender of one-
self to God. If this is not a sufficient explanation, we
doubt whether there is one. As regards the simple vows
of the Jesuits, it required special papal constitutions "
to render them productive of the truly religious state, to
which, as the text says, their members belong because
they devote themselves to the service of God, — but not
irrevocably. Their's is a peculiar condition on account
of the effects attached to their simple vows, and hence it
must not be drawn into the question here at issue.
Lf
The general assumption of the Church up to the six-
teenth and even nineteenth century was that a religious
offers himself as a holocaust to God and thereby surren-
ders himself entirely to the Church, who has the power
to declare whether, considering the circumstances,45 it is
opportune to accept and declare the surrender to be ir-
revocable to the whole extent or for all members and in-
stitutes alike. The intention of the Church is identical
41 Summa Tkeol., 2* aae, q. 88. 48 Pius IX, " Neminem latet,"
*- 7- March 19, 1857 (Bizzarri, Collect-
** Joh. a S. Thoma. Cursut anea, 1885. p. 853 f.). The erpla-
Theoi, in II-II, ed. Lugd., 1653, p. nation given by Vermeersch (Cath-
4 J8- Encycl., t, c.) is less intelligible than
44 Greg. XIII, " Quanto." Feb. that of St Thomas, and we prefer
1, 1583; " Atcendtnte," May 26, the opinion of Wemi, /. c. III, n.
*5«4, S7*
G| Original from
OOglt UNIVERSITY 0FWI5C0NSIN
58 RELIGIOUS
with that of the person who takes the vows, which is
extensively and intensively just what the Church declares
it to be.
A monastic congregation is a union of several autono-
mous or independent monasteries under the same supc-
rior. Such congregations sprang up after the IVth
Council of the Lateran (1215), for instance, the congre-
gation of St. Vannes, that of the Cassinese, and again
after the Council of Trent, which renewed the decretal of
Innocent 111 and insisted upon the formation of congre-
gations.*8 At present there are fourteen Benedictine
Congregations, two of them in this country; and if both
were amalgamated, it would hurt neither Church nor
State, nor their own efficiency.
An exempt religious order is one withdrawn from the
jurisdiction of the Ordinary. Whilst all regulars who
make solemn vows are ipso iure exempt, it needs a spe-
cial Apostolic indult or privilege to exempt religious con-
gregations, for instance, the Kedemptorists, Passionists,"
etc.*7 A religious congregation is one whose members
take simple vows only. They are either papal institutes
or diocesan institutes, the difference between them lying
in the manner of approbation or decree of praise. This
distinction was canonized by the Constitution of Leo
XIII, " Conditac," Dec. 8, 1900.
A clerical religion is one the majority of whose mem-
bers are priests. Note that " clerical " and " monastic "
are no longer 48 adequate distinctions, as the Code plainly
shows, for the clerical character may be possessed by
monastic congregations as well. Historically speaking,
*8 Seta. 25, c. 8, de reg.; c. 7, 48 Formerly this distraction wu
X, III, 35* employed by canonists.
47 Bolh were declared exempt by
Puii VI.
Q
.'le
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 488
59
monastic congregations or orders belong to the contem-
plative orders, which were of a lay character. Since the
tenth century™ so-called barbati (bearded) or conversi,
i. e.t lay brothers, were introduced and nourished espe-
cially among the Vallombrosians. Besides, after the
eleventh century, many monasteries allowed their mem-
bers to serve as pastors or curates at their chapels and
churches, which thus became incorporated with the mo-
nastic bodies. This led to an increased number of monks
with clerical character, and thus most of the monastic
orders became clerical orders.
The division into provinces is due to the Mendicant
Orders. St. Francis in 1217 divided his order into twelve
provinces. The term domus furmata is new and difficult
to translate. It means a w canonically established house."
Though the term is new, the object which it designates
dates back to the decrees of Urban VIII and Innocent X,
who subjected houses with less than twelve (or at least
six) members to the jurisdiction of the diocesan Ordi-
nary, which regulation has partly entered into the new
Code.50
The Abbot Primate is mentioned first among the higher
superiors or supcriores maiores. This dignity was cre-
ated by Leo XIII (" Summum semper," July 12, 1893)
to foster and maintain the " fraternal confederation "
established in the same year 5I among the " black " Bene-
dictines. The Abbot Primate is not to be compared to
the General of the Franciscans or the Jesuits, as our
Code itself states.02 We might call him a diplomatic
representative of the Benedictines with limited power,
40 The abbey of Einsiedcln in
Switzerland bad such barbati already
under Abbot Oeaorv in the last
decades of the Xth century.
60Cfr. can. 617, ff 2.
fii Sludien O. S. B„ 1893 (Vol.
14). P- 270 ff.: p. 4S4 ff.
es Can. 501, I y
>gle
Original from
UNIVERSITY OF WISCONSIN
6o RELIGIOUS
accredited to the Holy See according to the Apostolic
Brief of Leo XIII. His residence is at the College of
St. Anselm 6a on the Aventine Hill, of which he is also
abbot with ordinary jurisdiction. He is elected for a
period of twelve years, but may be reelected for twelve
years more by the abbots presidents or by all the actual
(not titular) abbots called to Rome. The election, in
order to be valid, must be effected by a two-thirds' ma-
jority. This, in brief, is the history of a new creation
which was wisely intended to produce a closer union
among the Benedictines. Without a certain unity, now-
a-daysr in times of universal organization, any society
appears to be doomed to failure.
Can. 489
Regulae et particulares constitutions singularum
religionum, canonibus huius Codicis non contrariae,
vim suam servant; quae vero eisdem opponuntur,
abrogatae sunt
I . Can. 490
Quae de religiosis statuuntur, etsi masculino voca-
bulo expressa, valent etiam pari iure dc mulieribus,
nisi ex contextu sermonis vel ex rei natura aliud con-
stet.
P
The rules and constitutions of all religious orders or
institutes or congregations, provided they do not clash
with any canon of this Code, remain in force; but any
regulation or law or statute which is contraray to a
canon of the Code, no longer binds either superiors or
Bs Innocent XI by his Constitu- lutionary tendencies of 1834 and
tion " Insc rutabili " (1687) erected the following years, but reopened in
a Benedictine college at St. Callisto 1888 and transferred in 1896 to the
in Trastevere, which was temporarily Aventine.
suppressed by reason of the revo-
oogle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 490 61
subjects. Thus elections must henceforth be held ac-
cording to the Code/* and all special rules regarding the
confession and communion of religious," or the causae
fidei belonging to the Holy Office,50 or studies and ordina-
tions " and profession are revoked.68 As to privileges,
see canon 613. The Code forbids what is contrary to
the canons therein established. Hence whatever merely
goes beyond the canons, or is a more explicit explanation
thereof , may be lawfully retained. General and particu-
lar decrees are abrogated when they are opposed to the
prescriptions of the Code. If no opposition exists, par-
ticular decrees given to an individual Congregation or
Congregations, still continue to bind. On the other hand,
in this same hypothesis general decrees, which are not
explicitly or implicitly contained in the Code, have no
longer any force. (See the Irish Ecclesiastical Record,
1918.)
Canon 490 lays down the general rule that whatever is
enacted about religious, also binds religious women, even
though the text may employ the masculine gender, except,
of course, in matters not applicable to the female sex, or
where the wording itself excludes them. A similar ex-
ample is that of privileges, which, if granted to a male
order, also apply to the nuns (second order), all other
m ■ ■ ■ ■
things being equal. It is evident that the regulations con-
cerning studies or ordination or preaching or hearing
confessions do not touch women. On the other hand,
the expression " si quis" though expressed in the mascu-
line, obliges women.
'■-.
m Can. 507. ST Can. 587, I a; can. 964-967;
66 Can. 519 ;f ; can. 595, I 2. can. 2410.
M Can. 501, I a. 61 Can. 573.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
Q
"-.
62 RELIGIOUS
precedence
Can. 491
§ 1. Religiosi praecedunt laicis; rcligiones clerica-
les, laicalibus; canonici regulares, monachis; mona-
chi, ceteris regularibus; regulares, Congregationibus
religiosis; Congregationes iuris pontificii, Congrega-
tionibus iuris dioecesani; in eadem specie servetur
praescriptum can. 106, n. 5.
§ 2. At clerus saecularis praecedit turn laicis turn
religiosis extra eorum ecclesias atque etiarn in eorum
ecclesiis, si agatur de religione laicali; Capitulum
vero cathedrale vel collegiale eisdcm praecedit ubiquc
loco rum.
Religious precede laymen; clerical religious precede
lay religious ; canons regular precede monks ; monks pre-
cede the rest of the regulars; regulars precede religious
congregations ; papal religious congregations precede dio-
cesan congregations. Concerning precedence among re-
ligious of the same kind, the rule laid down in can. 106,
n. 5 must be observed.
With regard to the precedence between the secular
clergy and the regular clergy, the rule is that the secular
clergy precede laymen as well as religious,60 but the latter
only in churches which do not belong to the religious,
unless a church belongs to a lay religious community ; in
which latter case the secular clergy precede the religious
even in their own church. A cathedral or collegiate
chapter everywhere enjoys precedence over the religious.
Noticeable in this regulation is the fact that no distinc-
tion is made between monks and clerics regular, such as
the Barnabites, Thealines, Jesuites, etc. Only the canons
bo The secular clergy, however, S. C. EE. el RR-, Dec J. 1847
are supposed to wear surplice ind (Bizzarri, Collectanea, p, 558).
biretta, if they claim precedence;
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 491 63
-
regular,00 such as those of the Lateran and the Pre-
monstratensians (Norbertines), precede the monks, c. g.,
Benedictines, Cistercians, Trappists (if these are priests),
who in turn take precedence over all other regulars, if
they are clerical orders. But among the other regulars
— the Code makes no distinction between mendicants and
non-mendicants — the rule laid down in can. 106, n. 5
must be observed.
This canon is taken from the Constitution of Gregory
XIII, " Exposcit" of July 15, 1583. It establishes that
among regulars those precede who can prove quasi-pos-
session of precedence in the place or city where a contro-
versy has arisen; and if no quasi-possession can be
proved, those who have first established a monastery or
house in the controverted place precede those who came
later. These are the rules the bishop should follow in
settling controversies concerning precedence. The Fri-
, ars Preachers (Dominicans) had precedence over the
other Mendicants according to a decision of Pius V,01
but since the Code takes the decision of Gregory XIII
as the general norm for all regulars except monks, it is
safe to say that the Dominicans must now follow the
general rule.
Concerning the three families of the Friars Minor : the
brown Franciscans (Fratres Minores ab Unions Leo-
nina), the black Franciscans or Conventuals, and the Ca-
puchins, the rule of precedence has been established as
follows :
That family precedes which has been in a city or town
for a longer time than another of the same order (O.
Q
..-.
«0 Pius IV, Sept. 23. 1563. settled Off, et Pot Episc, P. ITT. nlle*. 78,
the controversy between the Black n. 29 (Vol. II, 321).
Benedictines and Canons Regular in m Bnrbosa, L c, n. 30; Summa
favor of the latter. Barbosa, Da Aposl. Dec, 1. ;■., " Praecedentia,"
n. 17.
G 1 Original from
UOglL UNIVERSITY QFWI5C0NSIN
64 RELIGIOUS
F. M.)» unless quasi-possession of precedence can be
proved by the latter. However, since quasi-possession
is often subject to controversies, the term of ten years,
from Jan. I, 1900, to Aug. 15, 1910, during which a
family of Friars Minor has had actual possession of
precedence before another family supplies proof of actual
possession, unless there was no occasion to assert that
precedence ; in which latter case longer existence in city
or town determines precedence. If a convent has been
suppressed and ceased to exist in a city or town for fifty
years, the date of return must be taken as the date from
which existence is to be measured. If no convent of
their own exists in a district outside the city or town,
the general rule is that the Friars Minor of the Leonine
Union (brown Franciscans) precede the Conventuals,
and these in turn the Capuchins.61
We finally draw attention to the term chapter. A ca-
thedral or collegiate chapter presenting itself in a body
precedes all religious, even prelates and abbots, e. g., in
processions or on other ecclesiastical occasions. The text
says everywhere, hence in the churches of religious63 as
well as on their own premises. The vicar-general, al-
though appearing alone and not as a canon, precedes all
the regular clergy, nay even abbots and prelates regular,
because he represents the bishop.'
64
82 Pius X, " Seraphici Patri- of the chapter, because that seat aig-
archae," Aug. 15, 1910 {A. Ap. S., nifies, not only dignity, but jurUdic-
II. 713 ff.)- tion
«3 But the abbot's choir stall mast •* Can. 370; can. 106.
not be ceded to the first diguiury
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
Q
Title IX
ERECTION AND SUPPRESSION OF RELIGIOUS CONGREGA-
■
TIONS, PROVINCES, AND HOUSES
c
Can. 492
§ I. Episcopi, nor, autern Vicarius Capitularis vel
Vicarius Generalis, condere possunt Congregationes
religiosas; sed eas ne condant neve condi sinant, in-
consulta Sede Apostolica; quod si agatur de tertiariis
in communi viventibus, requiritur praeterea ut a su-
premo Moderatore primi Ordinis suae religioni
aggregentur.
§ 2. Congregatio iuris dioecesani, quamvis decursu
temporis in plures dioeceses diffusa, usque tamen dum
pontificiae approbationis aut laudis testimonio caru-
erit, remanet dioecesana, Ordinariorum iurisdictioni
ad normam iuris plane subiecta.
§ 3. Nee nomen nee habitus religionis iam consti-
tutae assumi potest ab iis qui ad illam legitime non
pertinent aut a nova religione.
The text is silent about the foundation of new religious
orders, and only mentions (can. 497) the establishment
of religious exempt houses, supposing, perhaps, that there
is no need of a new religious order, or that a congrega-
tion may arise which may later develop into an order.
In § 1 the law permits bishops, and these only, to found
new religious congregations. Vicars-capitular and vic-
ars-general, even if endowed with a special mandate,
have no authority to make such foundations. As the
65
I Originalfrom
lOOglC UNIVER5ITy OF WISCONSIN
66 RELIGIOUS
text says bishops, not Ordinaries, it seems logical to ex-
clude also religious superiors, even though they enjoy
quasi-episcopal jurisdiction. Abbots nullius or prelates
mdlius, on the other hand, would be allowed to found new
congregations, because they have the same power as resi-
dential bishops.'
There is, however, a twofold condition attached to the
leave of founding such communities :
i. The bishops must consult the Holy See and may
not permit a foundation to be made without taking ad-
vice with the S. C. of Religious.
•a
2. A congregation of tertiarics who live in common
must be affiliated by the superior general of the first
order to his own religion.
The first condition calls for special emphasis, since
the Holy See has more than once insisted on it. Thus
Leo XIII, by his Constitution " Conditae," Dec. 8, 1900,
and Pius X by his Motu proprio, "Dei providentis,"
July 16, 1906, have regulated the foundation and juri-
dical character of religious congregations. The sub-
stance of their precepts is as follows:
a) Before applying to Rome, in fact before admitting
any religious sodality into his diocese, the Bishop must
examine its constitutions as to their orthodoxy and
moral character, and satisfy himself that they conform
to the sacred canons, the decrees of the Roman Pontiffs,
and the scope intended. This examination must also ex-
tend to the founders, — whether or not they are in-
spired by prudent zeal for the glory of God and for
their own spiritual welfare and that of others. Some-
times it happens that personal spite and rancor, or the
itch for honors, or a desire to wear a different habit
causes separation. Probate spiritus.
lCan. 39J, 8 1.
Go >gle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 492 67
S
a<
a
(b) If possible, rather than permit the foundation of a
new congregation, the bishop should call in members of
a congregation already approved, if its purpose is the
same.
(c) The purpose or aim of the new congregation must
be well defined and not too diversified, which would be
the case if the congregation should propose to devote
itself to all kinds of charitable works.2
The " Conditae " as well as the " Normae " give some
examples of occupations which are less suitable to Sis-
ters.
(a) Sisterhoods who make it their special purpose to
nurse the sick in their homes by day and by night are not
entirely forbidden, but liable to be rejected by Rome,
unless very solid reasons are given and certain precau-
tions provided. The same is true concerning sisterhoods
who take daily care, as quasi-domestic servants, of the
families of poor laborers.
(/*) Sisterhoods who conduct hospitals open to both
sexes indiscriminately, or houses destined exclusively for
infirm priests, must also provide conditions and means
apt to prevent danger and avert scandal. The Roman
Congregation is even stricter with sisterhoods who have
for their (secondary) purpose the management of clerical
seminaries or colleges of male students, or schools
wherein co-education is practiced.8
(y) Much less, say the Normae, should sisterhoods be
approved whose scope is to take direct care of babies or
of maternity homes (confinement cases) or similar occu-
pations not befitting u virgins consecrated to God." The
Constitution " Conditae " does not mention such congre-
2" Conditae," I, 3; an exception 3 "Conditae," I, 3; Normae, n.
is made in favor of missionary coun- 13 f.
tries; cfr. Normae, n. 8.
".
jle
I , Original fro ni
UNIVERSITY OF WISCONSIN
68 RELIGIOUS
gations, and the Normae say "direct care." Hence, if
hospital sisters keep a special department for such pur-
poses and leave the immediate care of babies and women,
especially assisting at operations or delivery, to phy-
sicians and trained nurses, the law would not be against
them* Circumstances of time and persons, especially in
industrial centers, would seem to require a moderation
of the former strictness.
Concerning " mixed schools" many parish schools
would have to be closed in our country if the Normae
would be put into effect. Here, too, circumstances must
be considered. Finally, it must be added that, not only
in America, but the world over it is charitable works of
every kind that enkindle the flame of faith, attract non-
Catholics, and confound bigots.
(d) Before approving any new congregation the bish-
ops must also inquire into the material and financial sup-
port of these communities. The " Conditae " as well as
the Normae justly insist upon the old law * that no ap-
probation should be given to institutes which lack the
resources necessary for a decent livelihood. Congrega-
tions which live on alms or go begging from door to
door are scarcely to be approved," — a point which will
be more accurately determined later.
These, then, are a few points which the bishops should
ponder before giving their approbation to any institute,
or applying to Rome for that of the Holy See. The
other condition touches tertiaries, i. e.r congregations
which purpose to follow the rule of an ancient order, but
with modified constitutions and simple vows. Note that
4 Basticn-Lamlota, £ c, p. 46. 9 " Conditae," I, 3; " SinzuUri
0 Cfr. c 1, X, III, 1; c. i, X, quidem," March 37, 1896; cfr. can.
Ill, 7; c. ua, 6*. Ill, 16; Trid., 621-634.
25, c. 3 ilc reg.
>Ic
£ * ^ .. ,l„ Original from
UNIVERSITY OF WISCONSIN
CANON 492 69
in new congregations no distinction between rules and
constitutions is admitted, but all are comprised by the
name Constitutions.7 Yet, if Franciscan Tertiaries
frame their Constitutions, they must be, at least sub-
stantially, based on the Rule of St. Francis, and we be-
lieve that this Rule, together with the Constitutions, may
be called the Code of their common life. Of course,
approbation is given only to the Constitutions, which re-
main the chief, and, in fact, the only obligatory norm
for such Tertiaries. These must then be affiliated, as the
Code says, or aggregated by the superior general to the
first order, whose name and habit they assume. Hence
of the three Franciscan families the three respective su-
periors general are competent to affiliate Tertiaries.
Thus also the Dominican, the Augustinian, the Carmelite
and the Servite Generals. But what of the Benedictine
Sisters? There is a difficulty here, arising from the
peculiar position of the Benedictine Order. The Abbot
Primate has not the same power as one of the Generals
of the Orders above named. Besides, history records that
monasteries of nuns were affiliated to single monasteries,
not to Congregations, except perhaps that of Cluny.
The case was different with the Cistercians, because of
the jurisdiction of the Abbot of Citeaux. Until an au-
thentic solution of the difficulty is given, we are at a
loss to state who is empowered to affiliate the Benedictine
Tertiaries. Since Benedictine Oblates are incorporated
in the individual abbeys, we believe that the neighboring
abbot should see to it that the Tertiaries are incorporated.
There is no difficulty in incorporating them because the
aim of affiliation, even with the Tertiaries of centralized
orders, is only to make them capable of partaking of the
indulgences and spiritual favors granted to the first
TS. C EE. et RR., March 2, 1861 (Bizzarri, /. a, p. f$ 1).
*Ie
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
70 RELIGIOUS
St
order.8 There is, then, no question of juridical incor-
poration, as if the jurisdiction of the Diocesan Ordinary
would thereby be curtailed. For, unless a special Apos-
tolic indult grants them exemption, all Tertiaries are
under episcopal jurisdiction.9
Therefore § 2 rules that any diocesan congregation,
although spread over several dioceses, remains a diocesan
institute subject to the jurisdiction of the Ordinaries ac-
cording to canon law, until it has received pontifical ap-
probation or the decree of recognition. The episcopal
approval, which is absolutely required in order to make
the institute lawful and ecclesiastical, has another effect,
viz., to subject the members to the jurisdiction of the Or-
dinary or Ordinaries 10 with regard to the internal and
external administration, the election of superiors, though
these be chosen by the members, canonical visitation,
spiritual direction and discipline.11 In fact such an insti-
tute is no more than a parish consisting of members who
partake of the religious state and are considered by canon
law as ecclesiastical persons endowed with clerical privi-
leges. But they are not to be called corporations, in the
ecclesiastical sense, as they lack autonomy or independ-
ence. Of course, civil law may give them corporative
character and class them among privileged societies.
The text says, furthermore, that if these diocesan in-
stitutions are spread over more than one diocese, the re-
spective Ordinaries enjoy equal jurisdiction over them.
Hence no Ordinary may claim jurisdiction or direction
over houses in another diocese, because this would be
tantamount to reaching into the sphere of another bishop ;
8" Nomae," n. 16. 10 Cfr. can. 495.
• Some exemption was ftfvcn to 11 " Condi tat," L 9-1 1.
the Sisters of the Holy Cross «t
Ingenbohl in Switzerland.
jle
£ * ^ * %\j* Original from
UNIVERSITY OF WISCONSIN
CANON 492
71
a
n
nor is the bishop of the diocese in which the mother-
house is situated, to be considered the quasi-spiritual
director of the houses located in other dioceses.1*
The last paragraph of our canon ordains that the name
and habit of a religious order already established may
not be assumed by persons who do not lawfully belong
to said order, or by any religious order to be newly
founded. A distinctive religious habit was certainly
worn by the earliest religious, as historical documents
prove. For the terms velamen and velare (veil, to veil)
occur as early as the third century and were used for the
act of consecrating virgins." That the veil was given in
church may be surmised from the fourth Council of
Toledo (633). The tenth council of the same city (656)
mentions, besides the dress given by the bishop or clergy-
man, also a red or black cloth (pallium) worn on the
head as a mark of distinction.14 The religious habit was
given by St. Francis to St. Clare. As to monks, it is
known that St. Benedict in his rule speaks of the reli-
gious habit." But even before that time a distinct re-
ligious habit was worn by Parnmachius.1*1 The synod of
Gangrae (334) complains of the Eustathians (an Arian
sect), for despising the common dress and wearing in-
stead the periboleion, or mantle of the monks, in order
to deceive the unwary.17 Thus the religious habit ap-
pears of venerable antiquity. In the eighth and ninth
centuries abuses crept into the monastic bodies, — a fact
deplored and rebuked by St. Odo of Cluny.18 St. Bede 18
12S. C. EE. ct RR.. March 23,
i860 (Bizzarri, /. c, p. 7;8, and
isCfr. Migne, 13, 1 183; Bacliofen,
Compendium luns Reg., p. 47.
14 Manii. Coll. Cone, X, 635 (can.
56); XI, 31 (can. 4).
15 Reg., c. 58.
ia Cfr. above, p. 4 sq.
17 Can. 12; c. 15, Dist 30.
18 I'tta OJanU, III, t ; Cotlatio,
II (Migne, 133, 75; 213).
iBHix/. Eecl, IV, 25 (Migne, 95.
Go >gle
Original fro ni
UNIVERSITY OF WISCONSI
72 RELIGIOUS
complains of fancy habits worn by English nuns. It
seems that fashion played its part also in the later Mid-
dle Ages, for a well-known decretal of Clement V at
the Council of Vienne determines the color (black,
brown, and white) as well as the kind and measure of
the religious habit, and admonishes the religious to be
modest in their dress and to avoid costly vestments. A
hood (caputiutn) and scapular are also mentioned, over
which, the decretal says, the religious may wear an
ahnutium or large cap of black cloth or fur. Monks
as well as abbots and priors are allowed a cowl. Boots
and shoes are also permitted.20 A hat is not mentioned
in the decretal, but we know that Benedict of Aniane
(821) and later the Clunians allowed the monks to wear
hats of felt or wool. The Clunians also insisted upon
neatness and cleanliness.
The text then says that neither individuals nor new
congregations may assume the habit of an established
religious order to which they have no juridical relation.
To permit this would be like letting a ship sail under a
flag not its own, and would bring confusion into the
Church. This danger is quite real.21
Here may also be inserted a few wise rules stated in
the Normae.22 Material, form, cut, and color of the
habit should be in harmony with religious modesty and
poverty. Gold or silver ornaments, except a cross or
medal of silver, are not allowed, and the image on these
crosses or medals, as well as their inscriptions, must be
approved or at least tolerated by the Church. Silk
dresses or other showy apparel which would cause talk
SO C. 1, I 1, Clem. HI, 10 de soon gave up the attempt as super-
si. ■.'-'. monachorura. human.
M When in Rome the author tried 22 Nn. 6^-70.
to count the different habits, but
i by Google
I t Original from
UNIVERSITY OF WISCONSIN
CANON 492 73
and ridicule must be entirely avoided. A distinction be-
tween the habit worn by the superior and the teaching or
choir sisters, and between that of the latter and the habit
worn by the lay sisters may be admitted, but the differ-
ence should not be so great that the habits make them
appear as members of different congregations. This
would be the case if the color were entirely different.
A distinctive sign may be used in the habit of the
professed sisters and that of the novices. The Constitu-
tions which are sent to Rome should contain an accurate
description of the habit. After the religious congrega-
tion has been approved or recognized, the habit may not
be changed without the express permission of the S. C.
Relig.
As to the name or title of new religious congregations,
the " Normae " contain, besides the prohibition men-
tioned in the Code, some hints which may also find a place
here. The title of an institute may be taken either from
the attributes of God, or from the mysteries of our Holy
Religion, or from the feasts of our Lord or His Blessed
Mother or the Saints, or from the particular scope
of the institute itself. For instance, Sisters of Divine
Providence, Sisters of the Incarnation, Ladies of the Sa-
cred Heart, Sisters of St. Joseph, School Sisters, etc.
If the title or name of an existing congregation is taken,
a characteristic addition must be made, for instance.
Sisters of St. Francis of the Poor, or of St. Vincent de
Paul of the Servants of the Poor. All titles should be
simple, free from levity or sensationalism, and eschew
reference to devotions not approved by the Holy See.
r*r*nl*> Original from
i ^.OO^K. UNIVERSITY 0FWI5C0NSIN
74 RELIGIOUS
suppression of religious institutes
Can. 493
Quaelibet religio etiam iuris dioecesani t annum,
scrncl legitime condita, etiamsi unica domo constet,
supprimi acquit nisi a Sancta Sedc, cui etiam reser-
vatur de bonis in casu statuere, semper tamen salva
offcrentium voluntate.
The first of the next three canons — all of which
treat of the same subject, wherefore we connect canon
498 with the rest — has reference to the suppression of a
religious congregation, or rather of a religio in general.
Such a religio, lawfully established, though it may be
only a diocesan institute and consist of but one house,
may be suppressed by the Holy Sec alone. To the latter
is also reserved the right of disposing of the property
belonging to the suppressed religio, with due respect to
the will of the donors.
The Code is undoubtedly somewhat stricter here than
Leo XIIFs " Conditae" which permitted the bishops to
suppress diocesan institutes. It is not difficult to see the
reason for this stricter legislation. Joseph II, carrying
out the teaching of Febronius, endeavored to w purify "
the religious state, and his example has misled many
others, so that Pius IX had to condemn the error that
the civil government may suppress religious families at
will,28 and Leo XIII was compelled to raise his voice
against the encroachments of France and Portugal.
" The Church sighs, for besides being wounded in her
vital rights, she also feels the drawback in her activity,
which is developed by the concordant work of the secular
and regular clergy ; who touches these, touches the apple
ta" Probe tnemineriiis," Jan. «, 1855; "Cum saepe," July 26, 1855;
Sylhbus, a. 53.
jle
k ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 493
75
of her eye." u These reasons no doubt prompted Bene-
dict XV to make the suppression of religious dependent
on the Holy See, which ever protected and fostered them.
If the Apostolic See suppresses a religious institute, it
generally provides that the members who are in sacred
orders be subject to the Ordinary, or permits them, if
they so prefer, to choose another order or religio. But
those who have no sacred orders, like the lay brothers,
appear to be free from the obligations of the simple
vows.2* As to the property of suppressed religious it is
church and corporative property, and hence subject to
the Holy See as the supreme administrator of all church
property. However, if the donors are still alive, their
wishes must be respected. The same is true if the donors
are dead but have left special clauses in the legacy re-
garding the disposal of the property in such a case. The
Holy See will also take care that the members of the
suppressed rcligto shall receive back their dowries, or an
equivalent thereof. But they can lay no claim to an
equal share, as if they had been members of a stock com-
pany. Neither may the Ordinary of the diocese demand
a share, for the disposal of the whole rests with the Holy
See.
On the suppression of a religious house the Code rules
as follows:
Can. 498
Dornus religiosa sive formata sive non formata, si
ad religionem exemptam pertineat, supprimi nequit
sine beneplacito apostolico; si ad Congregationera
iuris pontifkii non exemptam, supprimi potest a su-
24 Lt RelioioT* Famiglie, June
39, 190T {Analceta Ecct., 1901, IX),
p. 281 f. (French text, ibid., p. 283).
23 We believe that this is the in-
tention of the Holy See, who will
mention that in the decree of sup-
pression.
GoogI
Original fro ni
UNIVERSITY OF WISCONSIN
-
76 RELIGIOUS
premo Moderators, consentiente Ordinario loci; si ad
Congregationem iuris dioecesani, sola Ordinarii loci
auctoritate, audito Congregationis Moderators salvo
praescripto can. 493, si de unica domo agatur, salvoquc
hire recursus in suspensivo ad Sedem Apostolicam.
This canon makes a distinction between a rcligio and
a religious house. A religious house, be it one with at
least six religious members (formata) or one with less
than that number (non formata), if it belongs to an
exempt religio, may not be suppressed without a papal
indult.
This is the logical consequence of can. 497, § 1, which
requires a papal indultt for the foundation.
If the house belongs to a non-exempt papal institute, it
may be suppressed by the superior general of that con-
gregation with the consent of the Ordinary. The latter
has jurisdiction over both house and congregation, and
is therefore interested in its suppression.
If a house belongs to a diocesan institute, and is not
the only one of the congregation, the Ordinary himself
may suppress it, after having heard the opinion of the
superior of the congregation. Against this decision re-
course may be had to the Apostolic See, but not in sus-
pensivo, although Rome may reverse the decision of the
Ordinary. The Holy See may suppress any house, even
of exempt religious, without any reason, although we
do not know of a case in which Rome proceeded arbi-
trarily. But the general rule holds good, because the
Pope is the sovereign judge of his own actions in mat-
ters subject to him, and may suppress whole orders,
as happened in the case of the Beguins and the Knights
Templars."
30 Cfr. c. uo., 6% III, 17; c. i, Clem., Ill, u.
Go >gle
j , Original fro m
UNIVERSITY OF WISCONSIN
CANON 498 77
a
The Superior General needs the express consent (writ-
ten or oral) of the Ordinary of the diocese, because, as
was said, the latter is directly interested in the suppres-
sion, not only on account of his jurisdiction, but also by
reason of the diminished service of God and the sacred
ministry.
The Ordinary may suppress a house of a diocesan con-
gregation, unless it be the sole house of that institute.
In the latter case the matter belongs exclusively to the
Holy See. The Ordinary in suppressing a house is not
bound to the consent w of the Superior General of the
congregation, but may proceed freely. Neither is the
Ordinary of one diocese dependent on the consent of
another in whose diocese the mother house is situated,
for all Ordinaries have equal rights over diocesan con-
gregations. However, an Ordinary should not suppress
a religious congregation except for weighty reasons, sup-
pression being an extreme measure. Such reasons would
be, for instance, serious relaxation of religious discipline,
abandonment or change of the purpose of the institute,
financial troubles which could not otherwise be remedied,
refusal to obey the common law as well as the injunctions
of the Ordinary, etc.
It may be asked : What about the inmates of sup-
pressed houses? The decisions of the Roman Court on
this point may be summed up as follows:
(a) Solemnly professed members must, unless the
papal Constitution of suppression has dispensed them,
continue to observe their vows as well as they are able ;
if they can obtain admission into other houses of the
same or some other religio, they are obliged to do so, if
no dispensation from the vows has been granted either in
27" Audito consilio" means advice, not consent; cfr. can. 105, 1;
"Conditae," 1, 6.
Q
"-.
jle
k ,|,, Original fro m
UNIVERSITY OF WISCONSIN
Q
78 RELIGIOUS
o
general or in particular to those who asked for it.
(b) Members with solemn vows, who are in sacred
orders and wish to remain in the diocese, may with the
permission of the Ordinary take up their residence there
and obtain incardination within six months from the date
-
of suppression. They are subject to the Ordinary in vir-
tue of obedience, and must, besides, observe their solemn
vows, as far as their condition allows. This permission
to stay in the diocese outside of a religious community
is, of course, granted only by special indult, especially
if the members of the suppressed institute cannot be
gathered into other houses or if they do not wish to leave
their native country. ZB
(c) Members of religious congregations with simple
voius, we believe, are free from any obligation if the sup-
pression was decreed by Rome. But if the suppression
of one house was decreed either by the superior general
with the consent of the Ordinary, or by the Ordinary of
the diocese, where there is question of a diocesan insti-
tute, the members remain bound by their vows, espe-
cially that of chastity, from which they can be dispensed
only by the S. C. of Rel., and therefore should seek other
houses of the same institute, which must receive them.
If religious in sacred orders, t. e., priests, after the
suppression of their institute, remain in the diocese, the
Ordinary may compel them to help in the sacred ministry,
especially the care of souls.90
As to the vow of poverty, this remains in case of
religious with solemn vows, and therefore their property
29 Piui VI, Brief of April 13, Piatus M., /. c, I, aiof.; Nervegna.
1782; S. PqciiU., Instructia of June De lure Practico Regul., 1900, p.
28, 1866; Declaratio of April 18, 163; Bachofen, Compendium Juris
186; and Sept. 12. 1872; S. C. EE. Reg,, p. 163.
et RR., Aug. t$, 1861; S. C. super ao S. C. EE. ct RR., July 30, 1881.
Statu Regul., Aug. 5. 1872; cfr.
oogle
^ ,|rt riginalfrorn
UNIVERSITY OF WISCONSIN
CANON 494 79
and whatever they may acquire after suppression, be-
longs to the order or congregation, unless the members
have been secularized, or have obtained a dispensation
from the Holy See to use their belongings for other pur-
poses.30 The vow of obedience also continues to bind
the solemnly professed members of a suppressed insti-
tute, so far as their actual state permits them to observe
it; but it may be transferred from the local to the imme-
diate superior, provincial or general, to whose jurisdic-
tion they are subject.81 Therefore they also remain un-
der the obligation of reciting the Breviary according to
their own calendar and must follow the rite of their order
if they say Mass in their own churches ; elsewhere, of
course, they have to follow the general rubrics.8*
change of papal institutes
Can. 494
§ 1. Religionem pontiBcii iuris in provincias divi-
dere, constitutas iam provincias coniungere vel aliter
circumscribere, novas condere conditasve supprimere,
monasteria sui iuris a monastica Congregatione se-
parare et alii unire, ad imam pertinet Sedem Aposto-
licam.
§ 2. Exstincta provincia, de eius bonis statuere,
salvis iustitiac legibus et fundatorum voluntate,
spectat, nisi constitutiones aliud caveant, ad Capitu-
lum generale vel, extra tempus Capituli, ad Modera-
torem generalem cum suo Consilio.
By change of a religious institute is meant any alter-
ation of the original or former condition of an order or
SOS. C. EE. et RR., Dec. 20, 81 S. C. EE. et RR., Aug?. 5. 1S72.
1839; March 6, 1840; Piatus M.f as S. Focnit., April 18, 1867 ; Ncr-
L c, I, au. Teffna, I. c.
>Ic
k ,1,., " Original fro ni
UNIVERSITY OF WISCONSIN
80 RELIGIOUS
congregation. Our canon treats of such as have re-
ceived the papal approbation or a decree of recognition.
§ i reserves to the Apostolic See the right of dividing
such a rcligio into provinces, of amalgamating provinces,
of changing their boundaries, of founding new provinces,
of suppressing existing ones, and of severing one monas-
tic congregation from, or uniting it to, another. Canon-
ists, applying the Decretal as which prohibited the trans-
fer and division of episcopal sees to Apostolic legates,
deemed a papal indult necessary to effect a change in
the existing order of a religious institute. Now this
opinion is made law, and therefore any change of the
kind set forth in the text is taken out of the hands of
the general chapter and reserved to the Holy See.
However, § 2 allows the general chapter (unless the
Constitutions should forbid the exercise of such power)
to settle the property affairs of an extinguished province,
with due regard to the rules of equity and the laws of
foundation. If no general chapter is in session at the
time of the change and settlement, the superior general
with his council may take the necessary steps. Equity
requires that the remaining property should be employed
for purposes similar to that for which the province was
founded, that the buildings should not be entirely
alienate from their original object, and that the people
should be recompensed for the loss they suffer by the
departure of the religious. Equity also would seem to
require that, if there remains a congregation or province
of the same order or congregation in the country, this
latter should first be benefited. This would no doubt
coincide largely with the will of the founders. But, as
has been said, the general chapter, or the superior gen-
si C. 4> X, I, 30, tie officio Ugati; but the enactment of our canon \m
certainly new.
wi by Google
J ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 495 81
eral with his counsellors, is competent to decide that
point. We believe the superior is dependent on the con-
sent of his consultors, unless the Constitutions provide
otherwise.
SPREAD OF DIOCESAN INSTITUTES
T
Can. 495
§ x. Congregatio religiosa iuris dioecesani in alia
dioecesi domos constituere non potest, nisi consenti-
ente utroque Ordinario, turn loci ubi est domus prin-
ceps, turn loci quo velit commigrare; Ordinarius autenj
loci undo excedit, consensum sine gravi causa ne
deneget.
§ 2. Si ad dioeceses alias earn propagari accidat,
nihil de ipsius legibus mutari liceat, nisi de consensu
singulorum Ordinariorurn quorum in dioecesibus aedes
habeat. salvis iis quae, ad normam can. 492, § 1, Sedi
Apostolicae fuere subiecta.
In order lawfully to found a house of a diocesan con-
gregation the consent of both Ordinaries, viz., that of the
bishop in whose diocese the mother house is located, and
that of the bishop in whose diocese the new house is to
be founded, is required. However, the Ordinary of the
diocese whence the foundation is made should not refuse
his consent without a solid reason. Such a reason would
be, e. g., if in his prudent judgment either the members
of the mother house were not sufficiently numerous to
do justice to the work they wish to undertake in his dio-
cese, e. g., in schools or hospitals, or if the financial con-
dition would not allow a division.
If new foundations arc actually made in several dio-
ceses, the respective Ordinaries in whose dioceses the
houses are located are not allowed to change the consti-
>Ie
, _,.] t Original from
UNIVERSITY OF WISCONSIN
82 RELIGIOUS
a
tutions of the congregation except by unanimous consent,
and if the change involved is substantial, the Holy See
must be consulted, for such a change is tantamount to
founding a new congregation, — which right, according
to can. 492, § 1, is reserved exclusively to the Holy See.
This, at least, is our interpretation, and we believe, it is
the only correct one. For it seems unnecessary to con-
sult the Holy See, to which reference is made in § 2 of
can. 495, regarding the foundation of a new house which
is merely a branch of a diocesan congregation about
whose foundation the Apostolic See has already been
consulted, can. 492, § 2 mentioning congregations, not
houses. Besides, there would be no distinction between
congregations and houses if the foundation of both re-
quired papal consent, and this can. 495 would be entirely
superfluous. However, if, as stated, substantial changes,
especially such as affect the scope or government of an
institute, are contemplated by the Ordinaries in whose
respective dioceses houses of a diocesan congregation are
to be erected, the Holy See must be consulted.
support of religious houses
Can. 496
Nulla religiosa dornus erigatur, nisi iudicari pruden-
ter possit vel ex reditibus propriis vel ex consuctis
eleemosynis vel alio modo congruae sodalium habita-
tion! et sustentationi provisum iri.
An early synod of Aries (813) enacted that no mon-
astery or canonry should receive more members than
could be decently supported from its revenues.84 This
law was renewed by the Decretals of Gregory IX, ex-
14 Can. 8 (c. i. X. III. 7).
,\[c
£ " -» v J„ Original fro m
UNIVERSITY OF WISCONSIN
CANON 496 83
if *
o>
tended to nuns by Bonilace VIII,85 and adopted by the
Council of Trent,36 which ruled that no more religious
should be admitted than could easily be maintained either
from the revenues of property owned by the monastery
or from the usual alms. This ruling was constantly up-
held by the S. C. of Bishops and Regulars," which always
insisted that especially dowries should be invested in se-
cure, stable, and remunerative goods, landed property, or
securities.
Our canon provides that no religious house shall
henceforth be founded unless there are good prospects
and a sufficient guarantee that its members shall be de-
cently lodged and supported either from some steady
source of income, or from the usual alms, or from some
other source. No exception is made and no distinction
between exempt and non-exempt congregations, between
mendicant and non-mendicant orders, between congre-
gations of either sex. The canon simply says: "nulla
religiosa domus"
To the two traditional modes of income (revenues and
alms) the Code adds a third by saying: vel alio tnodo.
The income or revenues proper to a house are such as it
owns in its own name (reditu* fropr'u)* and are stable
and regular, whereas alms cannot be said to be property,
especially since almsgiving is not prescribed by the virtue
of justice.
Under the name revenues are comprised all kinds of
regular income, such as movable and immovable prop-
erty which renders fruits; shares and title deeds; civil
or ecclesiastical pensions, capital as well as interest;
legacies for perpetual masses ; income from parochial and
missionary work; dowries of nuns; tuition fees from
88 C. un-, I 1, 6#, III, 16. 87 Bizzarrt, Collectanea, p. 637. p-
te Scss. 35, c. 3, do rcs< 644 *•
jle
, ,.] , Original from
UNIVERSITY OF WISCONSIN
84 RELIGIOUS
boarding and day scholars ; royalties on books, patents,
and copyrights. Manual stipends are not considered
revenues, but alms, because they are neither regular nor
dependable. Neither are the daily distributions among
canons of a chapter regarded as revenues or reditus**
What is the other source mentioned in the Code ? Per-
haps donations of a somewhat irregular and uncertain
character, but still due for work done or by reason of a
promise. Hospitals generally depend on such resources
unless they are amply endowed ; also orphanages, al-
though these are more often maintained by alms, and
sometimes by begging, if not beggary (chain letters, etc.),
concerning which, as will be seen, the Code has laid
down special rules. As to the mendicant religious who
are acknowledged as such by the Church, their respective
Constitutions will tell how far they are capable of pos-
sessing, property, and to what extent they have to depend
on alms.88
The Code further says that there should be good pros-
pects and a reasonable guarantee that the religious will
be decently supported. This judgment or verdict
(" prud enter iudicari possit") must be given by the
bishop in whose diocese the new house is to be founded.
Hence he must investigate the material condition and
prospects of the institute, and in order to obtain this in-
formation, study the character and scope of the institute.
If the Congregation devotes itself to charitable works
(schools, hospitals, etc.), or to the sacred ministry, its
revenues may be regarded as assured. But if the mem-
bers lead a contemplative life, to the exclusion of teach-
ing and works of charity, its existence, especially in our
88 Barb ota, Tractatits Varii, Ap- Bee c. 3. 6*. V, ia: c. r. Clem. V.
pell. " reditu*.** 11; Richter, Trid.. p. 395 *.: Reif-
■« Concerning the Friars Minor, fcnituel, III, 26, nn. 403, 435 S.
>Ic
£ " ^ vrIL Original from
UNIVERSITY OF WISCONSIN
CANON 496 85
country, is apt to be precarious, unless substantial dona-
tions are secured, or a sufficient fund is established, or
sufficient dowries are demanded to guarantee support.
The bishop has also to consider the religious houses al-
ready existing in the city or town where a new house is
to be erected. Concerning this point several constitu-
tions have emanated from the Holy See which are still
of practical value. The first point to be considered is
whether the religious houses already existing are likely
to be injured by the establishment of a new one. This
is more likely in the case of such as live on alms, yet even
in school and parish work and in charitable pursuits com-
petition and rivalry may easily cripple an older institu-
tion. Therefore Qement VIII obliged Ordinaries to
consult with the superiors of existing convents before
giving permission for a new foundation.*0 Gregory XV
commanded that the superiors and all others interested
within a radius of 4000 paces of the new foundation
should be consulted.41 No exception was made in favor
of any order, for while it is true that the houses of Men-
dicants are chiefly named in said Constitution, others are
also mentioned. Neither are houses of female congre-
gations exempt from these laws, especially now, after the
Code is promulgated, as it simply says, " no religious
house." The reasons are the same for both male and
female institutes, as far as external works are concerned.
Too many institutes within a limited space are, even now-
a-days, not only a detriment to the material support one
of the other, but a menace to the existence of religious
institutes in general.
The Code lastly says that the law concerning sufficient
40 " Quouiam," July 23, 1603; 41 " Cum alias," Auf. 17, i6a»
Ferrarii. Prompta Bibliotheca, t. v. (Ferrarii, /. c).
a
CmvMUff," art. I.
jle
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
86 RELIGIOUS
provision has reference to both habitation or dwelling
place and support. Hence the bishop, who is the first
judge in the matter, must satisfy himself as to decent
lodging. A decent lodging is one with which a man of
modest aspirations, let us say of the middle class, would
be content. The same may be said of material support.
For not luxuries and dainties are to be sought in reli-
gious houses, but a moderate living, gauged by the
amount and kind of work performed by the inmates,
and the ordinary comforts to which a self-respecting
human being is entitled. From this we may infer that
if the new house to be established could live decently
where older houses were suffering restrictions as to com-
fort, etc., this fact would be no reason for denying con-
sent to the foundation. However, this consideration
touches only the material aspect of the situation: peace
and merit are factors that must also be reckoned with.
.
PERMISSION FOR FOUNDING A NEW RELIGIOUS HOUSE
E
Can. 497
§ i. Ad erigendam domum religiosam exempt am,
sive formatam sive non formatam, aut monasteriurn
monialium, aut in locis Sacrae Congregationi de Prop.
Fide subicctis quamlibet religiosam domum, requiritur
beneplacitum Sedis Apostolicae et Ordinarii loci con-
sensus scriptis datus; secus, satis est Ordinarii venia-
§ 2. Constituendae novae domus permissio faculta-
tem secumfert pro religionibus clericalibus habendi
ecclesiam vel publicum oratoriurn domui adnexum,
salvo praescripto can. 1162, § 4, et sacra ministeria
peragendi, servatis de iure servandis: pro omnibus re-
ligionibus, pia opera exercendi religionis propria,
salvis conditionibus in ipsa permissione appositis.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 497 87
a
§ 3. Ut aedificentur et aperiantur schola, hospitium
vel similis rationis acdes separata a domo etiam ex-
empta, necessaria est et sumeit specialis Ordinarii
scripta licentia.
§ 4. Ut constituta domus in alios usus convertatur,
eaedem sollemnitates requiruntur de quibus in § i,
nisi agatur de conversione quae, salvis fundationis
legibus, ad internum regimen et disciplinam religiosam
dumtaxat referatur.
So far mention was made of the material requirements
of a new foundation. Canon 497 further establishes the
necessity of a legal formality, which consists in the con-
sent of the proper authority.
I. To establish an exempt religious house, no matter
whether it be formata (with at least six members) or
non-formata, or whether it belong to regulars or nuns
with solemn vows, a papal indult and the written consent
of the diocesan Ordinary are required. The same re-
quirements are demanded for the foundation of any
house (whether exempt or not) in the territories subject
to the S. C. Prop. Fide. For the foundation of a reli-
gious house which does not belong to exempt religious or
nuns with solemn vows and which is not subject to the
S. C. Prop. Fide, the permission of the Ordinary is suf-
ficient. This decision definitively settles a controversy
which existed among canonists *2 up to at least the pub-
lication of the Constitution, " Romanos Pontifices" of
Leo XIIIf May 8, 1881. Though the decretals48 men-
tion the Apostolic indult, it appeared to exclude or to
supply the Ordinary's license. The Council of Trent M
required only the Ordinary's consent. The decretals
«2Cfr. Bouix, De Jure Regul., « C. un., 6*, III, 17; c. un., 6",
i8S7. I. 247 A-; also Biziarri. /. c, III. 6.
p. 78. ** Seas. 25, c. 3. de reg.
oogle
v ,|,, Original fro m
UNIVERSITY OF WISCONSIN
88 RELIGIOUS
were directly intended only for the Mendicants, and, as
Bizzarri admits, there existed a controversy founded on
no less an authority than Fagnani," as to whether later
papal constitutions were intended for the countries " be-
yond the Alps" (ultra monies). Benedict XIV was
of the " opinion " that in as well outside of Italy both
an Apostolic indult and the permission of the Ordinary
were required. The controversy was settled for England
by the above quoted constitution of Leo XIII, which was
extended to our country in 1885, and has now entered
the Code and consequently become binding everywhere.
Hence a religious house in which members of an exempt
order, or nuns with solemn vows, are to live habitually
in common (be it called a monastery, or a convent, or an
independent priory) if it conforms to the notion of a
religious house, may no longer be founded without a
papal indult and the written permission of the Ordinary.
The same statement holds good concerning any religious
house, whether exempt or not, to be founded in mission-
ary territories subject to the Propaganda, which in 1901
demanded that all religious houses founded without such
an indult should petition for a rectification of their
status."
Religious congregations, either of papal or of purely
episcopal approbation, which are not subject to the S. C.
Prop. Fide, need only the permission, written or oral, of
the Ordinary in whose diocese they wish to found a new
house. The reason for this difference undoubtedly lies
in the exemption, which can be imparted only by the
Holy See, and for houses subject to the S. C. Prop. Fide
the reason must be sought, as a decree *7 of the same
45 Comment., I. Ill, tit. 7, cap. 1901 (Analect* EceL, X, 1902, p. 21)
" Non amplius," n. 55 fT. ; ReilTen- complained that Leo XIII's Consti-
aturl. Ill, 48, n. 38 f. tution was not observed everywhere.
*« The S. C. Prop. Fide, Dec. 7, 4T Dec. 7, 1901.
oogle
k ,|rt Original from
UNIVERSITY OF WISCONSIN
CANON 497
89
congregation insinuates, in the desire for an orderly and
uniform regime.
§ 2 of canon 497 determines the effect and consequence
of the legitimate permission, which carries with it (a) for
all clerical religious the right to have a church or public
oratory attached to their house and to exercise the sacred
ministry, (b) for all religious the right to perform the
pious works proper to them under the conditions laid
down in the act of permission.
As to (a) the Code appends one special condition, viz.,
that of obtaining another permission, viz., from the Ordi-
nary for building a church or public oratory.*9 It would
follow that they need two permissions from the Ordi-
nary : one for building a house, and another for building
a church. This may at first sight seem to savor some-
what of bureaucracy or " red tape." It would be difficult
to imagine a Benedictine community without a public
oratory, and hence the permission for building a reli-
gious house of that order was always considered as in-
cluding that of having a public oratory. However, the
legislator probably felt that the parish organization might
suffer from the multiplication of religious houses. Bene-
dict XIV plainly hints at this obstacle, especially in
cities,*9 but the chief obstacle he finds in the fact that the
people are attracted by the celebrations held in the
churches of religious orders and consequently often neg-
lect to hear the word of God. Perhaps the great Pontiff
had the Eternal City and Bologna in view. He also
wished the hour of services in parish churches and the
churches of religious to be so regulated that one should
not interfere with the other. The Code therefore most
reasonably prescribes that the special permission of the
48 Cf. can. 1162, 1 4.
49 " Etsi minimi," Feb. 7, 1741, 9 15; Id., Inst., 44; 105.
OiQili;
oogle
Original from
UNIVERSITY OF WISCONSIN
90 RELIGIOUS
Ordinary be asked for the erection of churches by re-
ligious, thus enabling the bishop to regulate parish work
so that it may not suffer from the building of churches
and public oratories. The matter of financial support
as well as the right of the parish priest to see his flock
in his own church may have been another reason for de-
manding a special permission of the Ordinary.
The Code adds: servatis de hire scrvandis, which sig-
nifies, with due regard to that which is to be observed
according to law. Hence religious are allowed to exer-
cise the sacred ministry only in so far as it does not clash
with the rights of others engaged in the same ministry.
And here first of all the pastor's rights, as laid down
in the Code,50 are to be duly considered and respected.
Note that the Code does not enumerate among the strict
parochial rights the blessing of ashes on Ash Wednesday,
and that of palms and candles,51 nor has the parish priest
any right to protest against or forbid religious saying
low masses on feast-days before or at the same time he
says his Mass/2 The Code then establishes the right of
all religious to pursue and exercise the pious works which
they have assumed as their proper task. Therefore, if
the Ordinary, when giving his permission, makes no re-
strictions (which he is at liberty to do) the religious
may freely fulfill their obligations and pursue the end for
which they were founded.
§ 3 contains a slight modification of Leo XIII's
" Romanos Pontifices" It declares that a special writ-
ten permission of the Ordinary is required and suffices
for building or opening a school or a hospice or similar
building separate from a religious house, although the
SOCan. 46* f. 52 S. Rit. C. April ai, 1635;
01 S. RiL C, April 8, 1703 {De- March 23, 1641 {ibid., nn. 620, 745),
crtta Autkentica, a a 098). quoted also by Cardinal Gasparri.
ioi >gle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 497 91
latter may belong to exempt religious. Leo's above men-
tioned Constitution had commanded all religious to ob-
tain the express permission of the Ordinary and of the
Apostolic See for founding or opening a new college or
school, but made a distinction between elementary or
parish schools and colleges, which latter it exempted from
the Ordinary's jurisdiction. Nevertheless in the next
paragraph the same Constitution demanded the permis-
sion of both the Holy See and the Ordinary. The Code
is satisfied with enjoining the latter's written special con-
sent. Special consent here signifies one that is not in-
cluded in the permission for building a religious house,
but is directed explicitly to the school or hospice or simi-
lar building to be erected separately from the religious
house. Separated seems to imply that the buildings
mentioned must be distinct from the religious house, so
that they are not under one roof with the latter, but form
a distinct and independent entity, for instance, for fire
insurance or taxation. How far they must be separated
the Code does not explicitly state. They may be called
separated or distinct even if connected by a covered hall-
way or corridor. But if a school were erected inside
the monastery or convent walls there would be no sepa-
ration, but simply a religious house, part of which is des-
tined for a separate purpose. In this latter case the spe-
cial permission of the Ordinary would not be needed.
What school means is quite evident and shall be fur-
ther explained in Book III, Title 22, Dc Scholis. Here
it may be noted that the Code does not distinguish be-
tween elementary schools, high schools, universities, etc.,
and hence all kinds of schools are included. Hospitium
is taken from the Latin hospes (guest)," and therefore
may mean a lodging-house for guests, or a hospice or
88 Du Cange. Ghssarium, s. v. " Hospitium."
* \,\(iL» Original from
oogle
UNIVERSITY OF WI5CON5I
■
92 RELIGIOUS
convent and refuge for travellers such as are kept by the
canons of St. Maurice in Valais, Switzerland, on St.
Gotthard and Great St. Bernard. But it may also mean
a summer or health resort for religious, a mansion where
they spend their vacation or sojourn for the sake of their
health. These were the old grangiae 84 or country scats,
villas which belonged to the religious and secular clergy
as well as to laymen. Lastly by the name of hospice
may also be understood a rural house inhabited by a lay
brother who acts as superintendent or '* farm boss " for
the monastery.55
It may now be asked why the consent of the Ordinary
is required for building or opening such houses. To
answer this question is easy concerning schools, because
the jurisdiction of the bishop extends to these and they
are, moreover, institutions for the public welfare. But
as to hospices a distinction was expected in favor of
exempt religious, who are, however, expressly included
in the text.*6 We may be permitted to observe that on
the score of alienation exempt religious, with the excep-
tion of nuns and Sisters, are not bound to obtain the
consent of the Ordinary.67 Perhaps the reason for the
law lies in the fact that hospices or similar buildings may
have an oratory, for which, unless they are quasi-priories
or dependencies of the main house, an Apostolic indult is
needed, which is granted only after the bishop has in-
spected the chapel.58 If a semi-public oratory is to be
erected in such hospices the Ordinary's permission suf-
5* Ibid., j. v. " Grangio." onimx," June 2, 1751, || it, 18;
fiS Piatus M., Pracltctiones luris can. 1195. The Jesuits have the
Reg., II, p. 330. privilege to erect private oratories
B0 Gasparri refers 1 < " Romano* in such hospices, if ihcy arc quasi-
PoHttfices," but this constitution houses of their order and dedicated
does not mention hospices. to divine worship; cfr. Piatus M.,
57 Cfr. can. 534, Apostolic indult. II, aji (ed. a).
08 Benedict XIV, " Magna cum
'■-.
>ogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 497 93
a
fices." In such cases, therefore, the intervention of the
Ordinary is quite intelligible. But apart from the erec-
tion of a private or semi-public oratory in such hospices
we fail to see the necessity of the Ordinary's permission;
for such a house is neither a religious nor a sacred place.
§ 4 of can. 497 mentions the formalities required for
changing a religious house, already established, into one
devoted to a different purpose. They are the same as
those prescribed in § 1 of the same canon : Apostolic
indult and episcopal permission for exempt houses; the
Ordinary's permission for other houses not subject to
the S. C. Prop. Fide. The stress lies on change. What
is the nature of the change that requires these formali-
ties ? A change may be • local or material. No local
change is here mentioned, which is somewhat surprising,
since in the " Romanos Pontiiices" a change from one
place to another is made subject to the same formalities
as are required for a new foundation. Place must be
taken in the sense of a municipality, or at least township
or parish ; for a mere local change of site would not re-
quire the observance of these formalities.80
The text of the "Romanos Pontiftces" from which
our Code is evidently taken, goes on to determine what
material change in a religious house means. Such a
change would take place if a school were converted into
a church, a convent into a college or boarding school or
hospital, and conversely. A change of this kind would
fall under the regulations that require full solemnities,
vie, a papal indult and the written permission of the
Ordinary, for it would be equivalent to a new founda-
tion." If the original destiny of the house is retained,
and merely a secondary purpose added, for instance, a
89 Can. 1 19*. fll C. un.t 6*, V, 6.
«o Piatui M., /. c, II, 279.
>Ic
Y ,1,., Original from
UNIVERSITY OF WISCONSIN
94 RELIGIOUS
novitiate or junior department or house of studies for
• members of the congregation, the change would not
transcend the purpose of the institute but be merely an
act of administration and internal discipline requiring no
formalities. If, on the other hand, the scope of the
house should be widened, if, for instance, a school for
interns or a scholasticate would be made a boarding
school open to outsiders, the aforesaid formalities would
have to be observed. The Code adds : salvis fundationis
legibus, with due regard to the will of the founder, which
means that if the house was endowed by a pious founder,
his will must be respected, and a substantial change of
its provisos would require the twofold permission of
Pope and bishop, even though it would not exceed the
limits of internal discipline. Of course, the last will
must be in writing or at least testified to by two unim-
peachable witnesses, else it is presumed that the founder
has not laid down any specific conditions.
For can. 498 see supra, pp. 75 sqq.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
Title X
THE GOVERNMENT OF RELIGIOUS
T
■
CHAPTER I
s
SUPERIORS AND CHAPTERS
After dealing with the foundation and suppression of
religious congregations and houses, the Code proceeds
to treat of the organization or government of religious.
Here, of course, no detailed enumeration of the different
classes of superiors and their powers over the various
institutes can be expected. Though the norms cover a
wide range, they admit enough elbow space for the dif-
ferent constitutions, as far as these do not conflict with
the new law. The superiors specially mentioned are : the
Roman Pontiff, the Cardinal Protector, the Ordinary, the
religious Superiors, the general Chapter and Counselors.
Can. 499
the roman pontiff and the cardinal protector
§ x. Religiosi omnes, tanquam supremo Superiori,
subduntur Romano Pontifici cui obedire tenentur
etiam vi voti obediential
§ 2. Cardinalis Protector cuiuslibet religionis, nisi
aliud expresse cautum fuerit in peculiaribus casibus,
iurisdictione in religionem aut in singulos sodales non
poilet, nec potest se interior! disciplinae et bonorurn
administration! immiscere, sed eius est tantummodo
D
bonum religionis consilio et patrocinio promovere.
95
jle
/•^ ^ v ,|,, Originalfrorn
UNIVERSITY OF WISCONSIN
*
96 RELIGIOUS
All religious are subject to the Roman Pontiff as their
highest superior and must obey him also by virtue of
the vow of obedience.
This general principle is based upon the ordinary, full,
and universal power vested in the Pope, in virtue of
which he is the highest superior of all religious.1 This
means that no religious order or congregation may law-
fully exist without his sanction, even as human societies
need the permission of higher authority for legal exist-
ence. Furthermore it implies that the papal ordinances
and laws, as far as they touch religious, either in general
as members of the Catholic Church and as a body, or in
particular as single bodies, orders or congregations, must
be complied with by all without exception. And this
obedience must be offered to any and every legally elected
pope, no matter what his personal qualities may be.f
But the same obedience is due also to the immediate
legal representatives of the Sovereign Pontiff, and there-
fore religious must obey especially the S. Congregation
of Religious and the tribunals of the Roman Court which
are set up by papal authority, and also papal legates, if
they have special faculties concerning exempt religious-
Religious also owe obedience to general councils, and,
during the vacancy of the Holy See, to the Cardinals who
govern the Church in the meanwhile.
The extent of this obedience is partly personal, partly
material. Personally it comprises all religious, exempt
and not exempt, those with solemn and those with sim-
ple vows, as well as papal and diocesan institutes. For
though the latter are only approved by the Ordinary, yet
l Sometimes the title " abbas ab- the abbots of Monte Cassino and
batum " is given to the Pope to sig- Cluny contended for that title,
nify that he ha* jurisdiction even 2 Known is the attitude of Savons-
over abbots. In the Xllth century rola towards Alexander VI.
rG< le ■
1 ,1 • Original from
UNIVERSITY OF WISCONSIN
CANON 499 97
they would not belong to the religious state without at
least an implied ratification by the highest superior of
all religious. Hence no exception may be claimed by
any religious. As to the material extent of this obedi-
ence a distinction must be made between that owing to
the Pope as the supreme head of the Church, and that
due to him in virtue of the vow of obedience.8 The
former reaches farther than the latter because the vow
of obedience has its limits, as will be seen when we come
to discuss the obligations arising from vows. In virtue
of the VOW of obedience religious are bound to obey the
Pope as far as their rule and constitutions demand,* and
no farther; for a religious has no intention to bind him-
self farther than the limits assigned by his rule and con-
stitutions, wherefore he says : M According to that rule
I promise," etc. The consequence is that where the rule
stops, the vow of obedience also ceases, and even the
Sovereign Pontiff cannot stretch it, because he himself
has approved the rule or constitution. Hence the Pope
could not, in virtue of the vow of obedience, command a
religious to leave the order and accept secular dignities,
or embrace the married state, or pass to a stricter or
even a milder order,5 although he has the power to dis-
pense.
Nor could he, in virtue of the vow of obedience,
command a Benedictine to pass from one congregation
to another, because the vow of stability is made for
the congregation, nay even (at least it was so in former
times) for a particular monastery. Neither could the
Pope command a member of the Minimi to accept the
fl Ferraris. Frompta Bibliothtca, 4 Ferraris, Ptompta Bibliothcca,
s. v. " Votum," art. II, n. 39; t. v. Votum, art. II, n. 38.
Bouix, /. c, II, p. 434; Piatus M., 6 Suarez, De Statu Rtligioio, I.
I, .298; II, 367 (c-.i. a). >0, C. lO, 1111. 1 it.
oogle
i*~* ^ .. *\r* Original from
UNIVERSITY OF WISCONSIN
■
pi
98 RELIGIOUS
mitigation of fasting, or force a Jesuit of the fourth
class of professed members to accept an ecclesiastical
dignity, because these have taken a special vow not to
accept dignities. But whatever is explicitly or implicitly
contained in rule and constitutions as falling under obedi-
ence to the religious superior, the Roman Pontiff is en-
titled to command in virtue of the vow of obedience.
Still farther reaches his power as the supreme head of
the Church. As such he may command any religious to
accept any ecclesiastical dignity or office for the utility or
necessity of the Church,0 because the supreme jurisdic-
tion in ecclesiastical matters rests with the Sovereign
Pontiff. Should any special vow be in the way of obey-
ing the Pope's command, dispensation would be granted.
This, however, docs not exclude the possibility and ad-
missibility of reverent remonstrances against acceptance.
As to civil or secular matters we do not believe that the
Pope should or would use his influence or power of com-
mand, because this sphere is not his. But in any matter
not against the rule or constitutions the religious must
obey the Pope in virtue of the vow of obedience.7
The next paragraph (§ 2) describes the power of the
Cardinal Protector. A Cardinal Protector is given to
every religious institute unless the Pope reserves the pro-
tectorate to himself. Leo XIII reserved to himself the
protectorate over the united Franciscans; Pius X over
the Benedictines. These are peculiar provisions which
entirely depend on the will of the Pope. Otherwise a
Cardinal Protector residing in Rome (in curia) is ap-
pointed for every religious order and congregation.
This custom was introduced by St. Francis of Assisi.
8 Snare*. J. r., I. n, c. 20, n. at (. formi a special vow the authors
7 The Friars Minor have a spe- dispute. Cfr. Piatus M., I, 395
ciaJ formula concerning obedience (ed. *).
to the Pope, but whether or not it
►ogle
Original from
UNIVERSITY OF WISCONSIN
CANON 500 99
a
Bishops are not appointed for this office, in order that
they may not assume authority over another diocese.8
But the Cardinal Protectors appear to have usurped a
jurisdiction over orders and congregations which
prompted the Constitution of Innocent XII, " Chrtsti
fidelium" Feb. 16, 1694, which reduced the authority of
the Cardinal Protector to a merely paternal and consult-
ive one, forbidding him to interfere in official informa-
tion, dispensations, favors and the execution of rescripts,
all of which is directly communicated by the Roman Con-
gregations to the respective religious superiors.11 These
laws have been embodied in the Code, which rules that
the Cardinal Protector enjoys no jurisdiction over the re-
ligious as a body or over single members of the same and
may not interfere with their internal discipline or admin-
istration of property. His duty consists merely in pro-
moting the welfare of the congregation by his advice and
protection. Of course the Pope may, for particular rea-
sons, grant a certain amount of actual jurisdiction to a
Cardinal Protector, as the Code says; but there are few
cases that require such extraordinary interference, e. g.,
serious trouble between the religious and the Ordinary,
or relaxed discipline.
■■■
THE ORDINARY'S POWER
Can. 500
§ z. Subduntur quoque religiosi Ordinario loci, iis
exceptis qui a Sede Apostolica exemptionis privilegium
consecuti sunt, salva semper potestate quam ius etiam
in eos locorum Ordinariis concedit.
§2. Moniales quae sub iurisdictione Superiorum
I S. C EE. et RR-. Feb. 21, 1851 » S. C. EE. ct RR.. May 9. >7»5
( BiztAi 1 ., p. 390, n. 14). (Bizcsrri, /. c, p. zn: ••'■
jle
j , Original fro m
UNIVERSITY OF WISCONSIN
ioo RELIGIOUS
rcgularium ex praescripto constitutionum sunt, Ordi-
nario loci subduntur tantum in casibus iure expressis.
§ 3. Nulla virorum religio sine spcciali apostolico
indulto potest sibi subditas habere religiosas Congre-
gationes mulierum aut earum religiosarum curam et
directionem retinere sibi specialiter commendatam.
After having determined the relation of the religious
orders towards the Sovereign Pontiff and their respective
Cardinal Protector, the Code regulates their relation to
the Ordinary of the diocese. To him all religious of the
diocese are subject, except those who have obtained the
privilege of exemption from the Apostolic See, and these,
too, in certain cases expressly provided by law.
The first paragraph states as a general principle that
religious should by right be subject to the Ordinary of
the diocese, because locally all religious belong to the
diocesan organization. Of exemption, which in general
means freedom from episcopal jurisdiction, enough has
been said in the Introduction. Observe that the Code
has done away with the Tridentine distinction between
the Ordinary as such and the Ordinary as papal dele-
gate, simply maintaining the right of the Ordinary. As
to religious Congregations, the power of the Ordinary is
more extended respecting diocesan institutes and less ex-
tended concerning papal institutes. The difference ap-
pears in the election of superiors, canonical visitation,
administration of property, etc. Spiritual guidance and
the administration of the Sacraments should not offer any
great divergency.
As to nuns, i. c, female orders with solemn vows, § 2
establishes that, if their constitutions subject them to the
jurisdiction of regular superiors, they are withdrawn
from the jurisdiction of the Ordinary, except in cases
oogle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 500 101
expressly stated in the Code. The only nuns of this
class in the U. S., so far as we know, are those of five
Visitation Convents, according to a decision of the S.
Congregation of Bishops and Regulars in 1864,10 which
at the same time decreed that in all the monasteries to be
afterwards erected the vows of these sisters should be
simple only. We doubt very much whether the convents
of the Visitation Sisters are actually exempt. They cer-
tainly are subject to the Ordinary, not to regular superi-
ors. All other nuns in the U. S. take simple vows, unless
otherwise decided by an Apostolic rescript.
The Code says, further, that congregations of women
with simple vows may never, unless a special Apostolic
indult is granted to that effect, be subjected to a religious
order or congregation of men, nor is any such order or
congregation allowed to retain the care and direction of
such sisters as if specially entrusted to them. No male
institute, exempt or not, may henceforth claim any juris-
diction, authority, or spiritual guidance over any sister-
hood, for such power would curtail the bishop's rights
and be tantamount to exemption. The Holy See has
justly reserved to itself the appointment of such a spirit-
ual director, and any jurisdictional or authoritative af-
filiation of a congregation of Sisters with a congregation
of men is prohibited by common law and needs a special
indult11
Here it may not be amiss to mention what were called
double monasteries, that is to say, religious communities
of men and women living under the same rule and roof,
or if not under the same roof, at least near together.
10 Bizzarri, /. c, p. 735- The five 1862 (Bizzarri, ;. c, p. 153 f.) ;
convents are: Georgetown, Mobile, " Conditae," Dec. 8, 1900, I, 8:
St. Louis (KoskaskU), St. Aloysius "In spiritual matters the congrcga-
(Frederick, Md.), and Baltimore. tions are subject to the bishops in
11 S. C. EE. et RR.f April 11, whose dioceses they are established."
G I Original from
OO^IL UNIVERSITY OF WISCONSIN
ico RELIGIOUS
Ecclesiastical legislation opposed such institutes,12 but
notwithstanding we find double monasteries in France,
England, and Germany. Whitby in England was a fa-
mous abbey ruled by Hilda, who enjoyed great fame.13
In France Remirmont was a most renowned foundation,
as was that of Robert d'Arbrissel (+ 1117), who sub-
jected nuns and monks alike to the jurisdiction of an
abbess.14 Such institutes were, of course, possible only
on a basis of strict discipline and complete separation of
the sexes, and may be explained by the peculiar condi-
tions existing under the feudal system. Not seldom they
were founded by the abbess herself or her near relatives,
and she was therefore looked upon as the proprietress
or " lady " of the monastery.15 The priests and clerics
who supplied the spiritual wants of the nuns had to con-
form themselves to her " rule." Fountevrauld claimed
to represent the beloved Disciple under the maternal
guidance of the Blessed Virgin, — a rather mystic view.
Benedict XIV seems surprised that the superioress of
Fountevrauld should be exempt from the jurisdiction of
the Ordinary, but he does not deny the fact.10 Now-a-
days it would hardly be advisable to found such monas-
teries. Only one affiliation, as stated under can. 492, § i,
is admissible, ins., that of Tertiaries by the superior gen-
eral of the first order, to enable them to participate in
spiritual favors.
■
RELIGIOUS SUPERIORS
The Code now lays down some rules concerning the
powers of religious superiors and chapters, their election
and obligations.
iaCc. 12, 33, C. 18, q. a. ia Cfr. Lingard. Anglo-Suxon
II St. Bede, Hist. Eccl, IV, 23 Church, I, 194 f.
(MiBn*. 95, aog). i« " Qiiamiw iusto," April 30,
liStudien O. S. B., 1885. 2* 64 ff. 1749, | If,
ogle
, .,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 501 103
a
POWERS OF RELIGIOUS SUPERIORS
-
a
Can. 501
§ 1. Superiores et Capitula, ad normam constitu-
tionum et iuris communis, potestatem habent domina-
tivam in subditos ; in religione autem clcricali exempta,
habent iurisdictionem ecclesiasticam tarn pro foro in-
terno, quam pro externo.
§ 2. Superioribus quibuslibet districte prohibetur
quominus in causis ad S. Officium spectantibus se in-
tromittant.
§ 3. Abbas Primas et Superior Congregationis
monasticae non habent omnem potestatem et iurisdic-
tionem quam ius commune tribuit Superioribus maiori-
bus, sed eorum potestas et iurisdictio desumenda est
ex propriis constitutionibus et ex peculiaribus Sanctae
Sedis decretis, firmo praescripto can. 655, 1594, § 4.
A distinction is here made between domestic power
and jurisdiction. The domestic power is granted to all
superiors and Chapters over their subjects, but only in
so far as their Constitutions and the common law per-
mit ; ecclesiastical jurisdiction, on the other hand, in the
court of conscience as well as in foro externo, is pos-
sessed by the superiors of clerical exempt institutes only.
Hence we have two kinds of superiors, namely (1) sin-
gle persons and chapters; (2) such as are endowed with
domestic power only, and such as enjoy jurisdiction
proper.
1. Single superiors are cither maiores or higher, or
inferiorcs, lower or local. Among the higher superiors
our Code enumerates the abbot primate, the abbot presi-
dent of a monastic congregation, the abbot of an inde-
pendent monastery, although the latter belongs to a mo-
jle
k .,1,, Original from
UNIVERSITY OF WISCONSIN
104 RELIGIOUS
nastic congregation, the superior general, the superior
provincial and the latter's representatives, as well as
those who enjoy a power similar to that of provincials.
All these persons, if they belong to an exempt clerical
order, are possessed of jurisdiction proper, and are there-
fore called prelates.17 For a prelature is a dignity that
combines precedence or preeminence — hence the name
prcclaius, from pracfcrre, to prefer — with jurisdiction.
What jurisdiction means has been explained in the sec-
ond volume of this work, to which we refer.18 It im-
plies public legislative, judiciary, and coercive power
within certain limits. This is not the case with the
domestic poiver (potestas dominatwa) , which consists in
the authority of the superior to direct the members of a
religious body to the end for which the institute was
founded, and is therefore confined to the scope of the
institute itself and limited by its constitutions and rules.
This power is essential to any community for the reason
that without authority no organization can attain its end.
As S. Scripture says: "Where there is no governor,
the people shall fall" (Prov. II, 14). The extent, then,
of the domestic power of the superiors is coterminous
with the end of the institute as defined in its constitu-
tions, and religious superiors are not at liberty to permit
substantial deviations from the regular life.19 To this
right vested in the superiors corresponds the duty of
obedience in the members, of which we shall treat under
the heading of obligations.
This domestic power was for centuries the only one
IT Cfr. can. 488, g; Suar«, D* power of jurisdiction belong* to the
Statu Rel.. rr. VIII, I. II, c. I, n. power of the keys {potestas ch-
1 II. (ed. Paris, i860, t 16, pp. vium); but so does the sacramental
77 rT.5. power, and yet it involve* no jurit-
1* Can. 196; Suarez (L c„ tr. diction proper.
VII, I. II, c. 18, n. s, ed. Paris, 19 Trid., Sess. 35. c. t, de reg.
1850. t. 15, p. 318) says that the
jle
v , j , Original from
UNIVERSITY OF WISCONSIN
CANON 501
105
religious superiors could wield. Gradually, especially
since the tenth and more largely since the eleventh cen-
tury, there was added to it the power of jurisdiction,
which grew when certain orders attained exemption.
Hence, when St. Benedict speaks in his Rule 20 of excom-
munication, he means what we call monastic, not ecclesi-
astical excommunication, although the two are similar.
It remains to say something of loner superiors, for the
Code stops at the rank of provincials who are the last
in the series of higher (maiorcs) superiors. Arc guard-
ians, conventual priors, rectors, higher superiors? It ap-
pears that the affirmative opinion may safely be held.
Benedict XIV states that these are local superiors before
whom trials concerning nullity of religious profession
must be instituted.21 Besides they are in law looked
upon as dignitaries or at least such as may be appointed
legates." Hence there seems to be little doubt that they
may be termed superiors in the sense of our Code. The
same may not be said of cloistral priors (priores clau-
strales), who do not fall under the category of dignitaries
(in dignitate constituti) ."
The power of the superiors of exempt clerical reli-
gious orders is called ordinary because given in virtue of
their office. For the same reason the Code states that
these superiors are to he comprised under the name of
Ordinaries." The jurisdiction of these superiors is
called quasi-episcopal, inasmuch as it extends to acts of
jurisdiction, though not all, proper to bishops.25 The
Ordinary of the diocese has certain rights which these
»• Rtf., cc 33 f.
21" Si datam." March 4. 1748.
referred to by Gasparri, can. 488. 8.
22 C. II, 6\ I. 3. D' RrscriptU;
c a, Clem., I, a; Piatui M., I. c,
h 49J-
28 C. 2, Clem., If 2; Rciffenstuel,
I, 29, n. 70 f.
24 Can. 198.
20 Suarez, Dc Ret., tr. VIII. 1. II,
c. a, n. 14 (ed. Paris, i860, t 16,
p. 90 f.).
oogle
Original fro m
UNIVERSITY OF WISCONSIN
106 RELIGIOUS
superiors must respect. Aside from this it is generally
admitted that, as Pius V states, the religious superiors
endowed with jurisdiction may exercise the same power
over their subjects as the hishops over the clergy and
faithful.28 Hence when the Code speaks of " Ordi-
narius" without the addition "loci" (diocesan), the re-
ligious superiors are included, unless the wording or con-
text plainly excludes them.
Superiors of religious orders which are not exempt
enjoy only domestic power within the limits of their re-
spective constitutions. Therefore ecclesiastical censures,
•a
dispensations from ecclesiastical laws, absolution from
reserved cases, etc., are not within the range of their
power, for in such matters the members and superiors
of non-exempt religious are subject to the Ordinary,
who may, however, communicate the necessary faculties
to the superiors."
Besides the superiors there are the chapters (capitula)
of the orders and congregations, which are assemblies
held for the purpose of treating matters pertaining to the
institute. St. Benedict already inculcated the necessity
of calling together either the whole community, or at
least the seniors, that the Scriptural injunction might be
followed: " Do nothing without counsel ; and thou shalt
not repent when thou hast done M (Eccles. 32, 24). He
might also have alleged the text, Proverbs 11, 14:
"There is safety where there is much counsel." But
after all was said and done the abbot decided. Only in
elections the constitutional element appears. Later, with
the changed position of abbots endowed with jurisdiction
and often with feudal powers, the legislation of the
2fl" Romoni Ponlificis." July «, 27 Cfr. " Conditar." ff,
: '"'• S 3t which explicitly mentions
the Dominican Priors.
jle
| , Original fro m
UNIVERSITY OF WISCONSIN
CANON 501 107
a
Church bound them not only to the advice, but to the
consent, of the monks.38 The English Benedictines set
a good example and thereby helped to frame " the great
charter " of a constitutional monarchy which was abso-
lutely necessary to counteract the almost frightfully in-
creased power of the abbots. If the rule of St. Benedict
is cited against us, we answer that no rule, and no law
of human origin is destined to last the same forever.
Besides, if the abbots have been endowed with preroga-
tives not even hinted at in the Rule of St. Benedict, it is
difficult to understand why the monks should be denied
development of their capitular rights. 2g ,
The Cistercians, therefore, and the great Mendicant
Orders, riding the wave of the times, introduced into
their constitutions the institution of chapters, which later
were approved, nay insisted upon by the Fourth Latcran
Council as well as by that of Trent.30
Chapters are either general, or provincial, or local,
according as they meet from the whole order, or from a
province, or from one convent. The convocation of a
chapter belongs to the superior who is empowered to call
it by the constitution of the order ; for there is a variety
of rules which we cannot detail here.31 The same is
true concerning the subject matter to be treated in chap-
ters. The manner of procedure may be defined by the
constitutions; if it is not, the common law (see canon
101) must be followed. Whatever requires the consent
(consensus) of the chapter affects the validity of the
acts which the superior performs, and he would there-
fore act validly if he neglected the chapter's rights. But
asCfr. cc. 2, 3, 6, X. Ill, 10, aoC. 7, X, III, 35; tit. 16 in 6';
touching chiefly English monasteries, tit. 10 in Clem.; Trid., wu. as,
20 Molitor, Religion Iuns Capita cc. 1, 8, de rcg.
Setecta, 1909, passim, would have ua ai Cfr. Piatus M,, /. c, I, 613 ff.
(a back 1400 yearn I (2nd ed).
ogle
Original from
UNIVERSITY OF WISCONSIN
108 RELIGIOUS
if the law or constitutions demand only the advice
(consilium) of the chapter, transactions made by the
superior without calling the chapter are valid.82
The power of a General Chapter is supreme in the
respective order or congregation, not including the mo-
nastic congregations which are mentioned in § 3. It ex-
tends to the election, punishment and deposition even
of the superior general, to the enactment and repeal of
laws and statutes, unless these have been specifically
ratified by the Pope. But the General Chapter may not
enact laws or rules against the common law or against
the rule of the order, either by making it stricter or
relaxing its tenor, although mitigations may be introduced
with the approval of the Holy See." The power here
described in general terms may, of course, be enlarged
or restricted by the constitutions, which depend upon the
approbation of the Holy See.
The Provincial Chapter, broadly speaking (for as to
specified faculties the respective constitutions must be
consulted), may enact laws touching the province, elect
and depose provincial superiors, restrict and abolish privi-
leges granted for the province, but not such as are granted
to the whole order or congregation.
The Local Chapter is convoked for the consideration
of matters touching the local community, especially
novices and other affairs of importance. The monastic
chapters are of greater authority than those of centralized
orders whose convents generally consist of but a few
members.
The rights of single capitulars in any religion arc,
habitually at least, granted by the first (simple) profes-
sion, although they may not be exercised during the time
82 Can- 105. »8PiatU3 M., /. ft, 616 ff.
jle
k ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 501 109
of simple or temporary vows." But the Code has, as it
were purposely, abstained from determining a more pre-
cise date for the exercise of capitular rights, evidently
in order to avoid controversies. There is question about
the requisite of sacred orders for the exercise of capitular
rights in clerical religious. We can find no law text80
whatever which requires a higher order for the right of
voting, unless the chapters in question would be cathedral
or collegiate chapters. It would, however, not contra-
vene any law of the Church were the constitutions to
prescribe a sacred order as a necessary condition of ex-
ercising capitular rights.
As to those who are deprived of that right consult
Q
can. 167, which excludes from the right of voting all
who are incapable of a human act, minors, and censured
and infamous persons.3" Under can. 639 f. all those
who are either temporarily or forever secularized are de-
prived of capitular rights." The Code further mentions
as liable to be deprived of capitular rights those who
violate the rules of common life in a serious manner."
Finally the lay brothers (fratres eonversi) are not ad-
mitted to the chapter rights ; for although they are reli-
gious, they do not, according to the common law of the
in
Church, belong to the clerical or hierarchic order properly
so-called.39 Besides the law was doubtless made in order
to prevent dissensions, which were not rare in former
times, especially on the occasion of elections, and to
exclude undue lay influence in purely ecclesiastical mat-
ters.
J« Can. 578, 8 3. siCfr. also can. 2331, 2336, 234a,
15 C. 3, Clem., I, 6, mentions 3360, 3368, 338$.
churches of canons (collegiate cbap- 37 Can. 639 f.
ten) ; Trid,, sets., 22, c. 4, refers 38 Can. 2389.
to cathedral and collegiate churches bd C. 33, fi 1, 6°, I, 6; Engel, I,
onlr- 6, n. 5.
".
.'le
k ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
no RELIGIOUS
MATTERS PERTAINING TO THE HOLY OFFICE
Religious superiors, according to § 2 of can. 501, arc
strictly forbidden to handle or interfere with cases be-
longing to the Holy Office. Although the synod of
Toulouse in 1229 had enjoined exempt abbots who were
not subject to the Ordinary's jurisdiction to proceed
like bishops against heretics and their protectors and
promoters,*0 this injunction was, it seems, not condu-
cive to the end for which the Inquisition had been in-
stituted. Hence, especially after the Council of Trent,
the causae Met, or matters of faith, which fell under the
jurisdiction of the Holy Office, were exclusively assigned
to the latter in places where it was able to exercise its
power. But when heresy sprang up and spread far and
wide, the bishops were the natural defenders of the faith
and judges in such matters. Paul V excluded religious
superiors from proceeding in matters strictly belonging
to the Holy Office. " These matters are the following:
a) Whatever appertains to heresy and schism, as well
as the persons (bishops, inquisitors) who proceed against
these crimes, if they are impeded or disturbed in prose-
cuting the guilty ;
b) Whatever savors of divination, witchcraft, sorcery,
superstition, astrology, etc.;
c) Whatever touches- the sacredness of the confes-
sional ; 4*
d) Persons, lay or clerical, who, though not priests,
attempt to say Mass or hear confessions.
e) The Code adds another, via., religious who become
40 Can. a (Hcfelc, Concil.-Gesch., Regul., 1903, p. 325; the sacredness
V, 873). of the confessional concerns sollici-
41 " Romanus Pontifex," Sept. 1, tatio ad t\trf>ia and rcfuial of abso-
1606, S >; II. 0., May 15, igui. luiion unless the name of the ac-
42 Cfr. Santi-Leitner, /. c, I, 31, complice be revealed.
n. 70; Bachofcn, Compendium Juris
§le
/""*-»■» J,. Original from
UNIVERSITY OF WISCONSIN
CANON 501 in
a
members of a Masonic sect or similar society must be
denounced to the Holy Office." These and similar mat-
ters, then, the religious superiors are not to prosecute,
either criminally or judicially, by summoning witnesses
or inflicting penalties, or in any way that would savor of
inquisitorial procedure, but refer to the Holy Office if
any proof is in their hands. They are not obliged to act
on mere suspicion or rumor, because prudence and char-
ity require an investigation; but they may administer
fraternal correction or admonition. The culprits may be
reported to the Ordinary or directly to the Holy Office.**
SUPERIORS OF MONASTIC CONGREGATIONS
These superiors, according to § 3, can. 501, have not
the same power and jurisdiction as the higher superiors
(supcriores ma tores), but only as much as they receive
from their own constitutions and from special decrees
of the Holy See. The same holds good also of the
Abbot Primate of the Benedictine Order.
A special canon is devoted to the constitution of the
Benedictines and their affiliated orders. — a deference
for which these orders owe a debt to the sovereign legis-
lator. To understand this the reader should consider
that each Benedictine monastery deserving of that name
is an autonomous or independent juridical person or cor-
poration, whose head is from time immemorial called
abbot (father). St. Benedict looked upon his communi-
ties as families over which the abbot was to rule with an
authority similar to that of a Roman paterfamilias. He
does not speak in his rule of an aggregation of the vari-
ous monastic families, though it cannot be proved that
the Benedictine Code excludes or condemns such amal-
gamation or confederation. To call the Cluniac Con-
41 Can. 3336, | 2. U if" o., May 15, igoi.
j Original from
' K H 'gie UNIVERSITY OF WISCONSIN
H2 RELIGIOUS
gregation or order, as it was styled, a distinct departure 45
from St. Benedict's rule seems to us a rather subjective
judgment. And even granted — dato, non concesso, —
that union in a stricter sense should be called a deviation
from the primitive rule of St. Benedict, would it not be
foolish to make even of a sacred Code a petrified thing
impervious to any, even salutary changes, which do not
touch the substance or nerve of the rule? Changed con-
ditions require a change of rules. In England, France,
Italy, and Germany, especially after the IVth Lateran
Council," congregations and chapters seem to have been
a necessary requisite for maintaining discipline and order,
as well as to exert influence in, and command the re-
spect of, the outside world. It could not escape the far-
sighted Pope Leo XIII, who was so deeply interested in
the Greek Union47 and the Union of the Franciscans,
that a closer confederation of the houses of the Order
of St. Benedict would be productive of many advantages
and benefits. With the cooperation of Cardinal Dusmet
he succeeded in establishing a "fraternal confederation
of the Black Benedictines," over which he put an Abbot
Primate, to be chosen for twelve years from any of the
congregations. He resides in the College of St. Anselm
in Rome, whose abbot with ordinary jurisdiction he is.
But he has no jurisdiction over the single congregations
or abbeys, or over the various abbots or members. No
powers or rights are pointed out in the Apostolic brief
'■-.
*5
46 Cfr. Alston in the Cath. 47 Cardinal V. Vanutelli reported
EneycL, IV, 73 * ('• v. "Cluny"); to Leo XIII that the Benedictine*
■ more decisive deviation from the would favorably impress the Orien-
rule are temporary abbots. The au- tals, and upon this report Leo XIII
thor is correct insofar as the Cluniac acted in supporting the new organ-
system of priorica was anything but ization aud reopening St. Ansclm'a
Benedictine; but a union of abbeys College, Jan. 4, 1888.
is neither denounced nor recom- M " Summum Semper," July ia,
mended by the Rule. 1893; Studicn O. S. B., 1893, 454,
4«C. 7. X, III, 35. 630 ff.
jle
I , Original fro rn
UNIVERSITY OF WISCONSIN
CANON 501 113
that created the new dignity, but some were granted in the
course of years by the Roman Court.*" Thus the Abbot
Primate may, leaving other faculties now dubious aside,
call the abbots presidents for a meeting in Rome at least
every six years.80 But the decisions taken at such a
meeting are not to be considered laws for the order, for
no Order of St. Benedict, in the juridical sense, exists;
nor are the presidents entitled to make laws for the order,
or even for their congregations.
Chapters of each congregation are called by the presi-
dents thereof, generally at stated times. Those who
are to be present at the chapter are determined by the
Constitutions of each congregation, which greatly differ
from one another. Thus the English Congregation ad-
mits the president, the actual abbots, the Cathedral Prior
of Newport, the delegates from single monasteries, the
procurator at the Roman Court, the master of the schools,
the assessor in judiciary matters and the inspector of the
temporalities.51 The Amcrican-Cassinese Congregation
calls abbots and independent priors as well as delegates.
The Swiss-American Congregation admits only abbots.5*
The reason why these chapters enjoy no legislative power
for the congregation as such is because as long as a con-
gregation is no juridically united body these authorities,
even under the presidency of one acting as abbot presi-
dent, no matter how solemnly they may gather, are
merely single entities who represent their own communi-
ties, but not the whole congregation in the sense of an
ecclesiastical corporation. We do not deny, however,
« Cfr. Annates O. S, B., 1908, H Leo XIII, * Dm qvidem," June
pp. m, 4«r S?: S. C. EE. «t RR., a9, 1899 (B*II. Cong, Ang. O. S. B.,
Jan. 31, 1902; Dec. 2, 1906; Dec. 1912, p. 125).
21. 1907* Pius X, May 30, 1908. oaThii is an anachronism, to be
80 Such a meeting was held In removed like the regium flactt.
1907.
>Ie
Original from
UNIVERSITY OF WISCONSIN
114 RELIGIOUS
that the Sovereign Pontiff could endow them with legis-
lative power, in which case they would act as delegates
of the Pope. The members of such chapters may pro-
pose and deliberate on matters of reform and regular
discipline as well as mutual assistance and material sup-
-
port." Precisely from this point of view it would be
conducive to uniformity of discipline if not only abbots
would be present at the so-called general chapters, but,
according to the model of the English Congregation, also
representatives of the communities with at least a con-
sultive voice. The reason why our Benedictine Congre-
gations, or at least most of them, are not a corporative
unit is that profession, and especially the vow of sta-
bility, is made into the hands of the abbot, and is, at
least intentionally, confined to the single monastery. Be-
sides, although there may be a mutual promise of mate-
rial help, yet the property of each monastery belongs to
that monastery and not to the congregation as such.
Whether two vital elements of the Benedictine " Order "
should or may be changed, we leave to others to decide.
w
Can. 502
Supremus religionis Moderator potestatem obtinet
in omnes provincias, domos, sodales religionis, exercen-
dam secundum constitutiones ; alii Superiores ea gau-
dent intra fines sui muneris.
This canon enacts that the superior general is endowed
with power over all the provinces, houses, and members
of his institute within the limits of its constitutions, and
at
that other superiors have as much power as their office
requires.
The Constitution " Conditae " of Leo XIII had estab-
53 Molitor, /. c, p. 526; p. J39 ff.
Gi r Original from
UOglt UNIVERSITY 0FWI5C0NSIN
CANON 502 115
lished the rule that the government of a religious congre-
gation whose Constitutions are approved by the Holy
See must not be tampered with by the Ordinary, but re-
mains with the superiors, either general or local. Hence
it empowered the supreme superiors to organize houses,
to dismiss novices and professed members, etc., in ac-
cordance with the law as now set forth. But it also
reserved to the Roman Pontiff the right to dispense from
either temporary or perpetual vows.a* How this is to be
understood shall be explained under the title on dis-
missal. The limitations of the power granted to any
superior, general or other, must be determined by the
respective constitutions, which are supposed to be ap-
proved by the Holy See, — the supreme authority against
which no inferior may act. It is not necessary to specify
here because the different rights will be mentioned under
various headings later. Only one point we will note.
The domestic power includes the right of punishing de-
linquent members, but only in so far as no ecclesiastical
censures or vindictive penalties are inflicted, because to
mete out ecclesiastical penalties requires more than do-
mestic power, viz., jurisdiction. But from the infliction
of a punishment which does not exceed the domestic au-
thority of the superior no appeal in the proper sense can
be made, although recourse may be had to a higher supe-
rior or to the S. Congregation of Religious.
Can. 503
Superiores maiorcs in religionibus clericalibus cx-
emptis possunt notarios constituere, sed tantum pro
negotiis ecclesiasticis suae religionis.
Canon 503 grants the higher superiors of exempt cleri-
84 " Condita*," IT. i f.; RaRticn-Lonslnti, /. c, p. 173.
jle
f^ -. ^ .,1 » Original from
UNIVERSITY OF WISCONSIN
■
116 RELIGIOUS
cal orders the right of appointing notaries to act in eccle-
siastical matters pertaining to their order. This, as his-
tory tells, is an ancient custom. Abbots chose their own
notaries, who were recognized by the civil courts.03 Un-
der the new Code their office is purely ecclesiastical, and
consists chiefly in keeping records, taking depositions,
and authenticating documents." Before they enter upon
their office, notaries must take an oath to perform their
functions faithfully. This oath is to be made into the
hands of the superior who appointed them.67 Such
notaries may play an important role in ecclesiastical law-
suits, e. g., such as concern the validity of the profession
or expulsion of religious, also in cases of beatification
and canonization, elections, the installation of religious
superiors, etc.
qualities of superiors
Can. 504
Firmis propriis cuiusvis religionis constitutionibus
quae provectiorem aetatem aliaque potiora requisita
exigant, ad munus Superioris maioris inhabiles sunt
qui eandem religionem professi non sunt a decern
saltern annis a prima professione computandis, non
sunt ex legitimo matrimonio nati et annos quadraginta
non expleverunt, si agatur de supremo religionis Mode-
ratore aut de Antistita in monialium monasterio; an-
o
nos triginta, si de aliis Superioribus maioribus.
This canon lays down the minimum requirements for
the office of superior. (1) It leaves it to the respective
constitutions of each institute to demand a higher age or
-
65 Rciffcnstucl, II, 22, n. 260. belong to their office, but see can.
&o Authenticating relics would alio 1283.
117 Can. 3<M-
Go >gle
^ ,J » Original fro m
UNIVERSITY OF WISCONSIN
CANON 504 117
more stringent requisites; (2) It rules that, to be elected
higher superior, one must have been a member of the
same institute for at least ten years from the date of his
first or simple profession; (3) It demands that he must
have been born of lawful wedlock; and (4) that the
superior general of any religious institute and the su-
perioress of nuns with solemn vows must have completed
the fortieth, and every other superior the thirtieth year
of age.
Concerning the first point note that while the religious
constitutions may demand more extensive qualifications,
they arc not allowed to restrict the minimum determined
by the Code ; and hence all rules or constitutions contrary
to canon 504 must be looked upon as abrogated.
The second point rules that the ten years during which
one must have been a professed member of the religious
institute of which he is to be elected superior arc to be
counted from the date of simple, not solemn, profession,
that is to say from the date of that profession which is
commonly made after the novitiate. Noteworthy is the
phrase: "the same institute" Clement V issued a de-
cretal saying that the election of one who belongs to
another religio, for instance, of a Franciscan as abbot
of a Benedictine monastery, would be null and void.5®
The Code says " religio" not congregation or province.
From this point of view a religious of one monastic con-
gregation of the same order may be validly elected abbot
of a monastery of another congregation of the same
order. However, a Cistercian could not legally be elected
abbot of a monastery of Black Benedictines, because,
though the original code of both is the same, yet they
are justly called different orders.
The third requirement is legitimate birth. Various
»• C. 1, Clem. I, s, de elections.
oogle
k .J,., Original fro ni
UNIVERSITY OF WISCONSIN
n8 RELIGIOUS
councils, especially during the eleventh century, enacted
strict rules concerning such as were born out of lawful
wedlock; while admitting illegitimate children to reli-
gious profession, they excluded them from the higher
offices, especially prelacies." Sixttis V made still stricter
rules concerning; such as were born from an incestuous
or a sacrilegious relation, entirely excluding them from
the religious state.60 A certain mitigation was intro-
duced by the same pope by admitting such as were born
from parents between whom a legitimate marriage could
have existed at the time of birth, and who were legiti-
mated by the subsequent marriage of the parents. The
whole question, therefore, falls rather under marriage
law, to which we refer.*1
Of interest may also be that part of the declaratory
Constitution of Sixtus V which provides that among the
dignities from which religious of illegitimate birth are
debarred, are the following: provosts, abbots, priors
(conventual), guardians, custodes, provincials and gen-
erals. The offices of professors (lectores), confessors,
doctors or masters of theology, preachers and rectors (of
seminaries) are not considered dignities.62
The last quality required in a superior is age. The
Decretals65 were somewhat less rigorous on this point
than is the Code, which extends the age limit, requiring
forty years for a superior general and thirty for all other
higher superiors, provincials, abbots, and local superiors.
This rule is just, for theory and practice, theological
knowledge and business abilities now-a-days require an
experience not necessary in former times.
P
50 C. i, X, I, 17 (synod of Poit- at, 1588; cfr. can. 1015, 1114, 1116.
iers, 1078); Reg. Iuris 87 in 6*. M Bizzarri, J. c, p. 845.
•O " Cum da omnibus," Dec. 1, M C. 43, 6\ I, 6 (abbess = 30
1587- years); c. 1, Clem. Ill, 10, required
«1 " Ad Romonum special," Oct. only twenty-five years for a prior.
►ogle
( * ^ ^ ils* Original from
UNIVERSITY OF WISCONSIN
CANON 505 119
Inhabiles means that the lack of one of these require-
ments constitutes a canonical impediment.
duration of office
Can. 505
Superiores maiores sint temporarii, nisi aliter ferant
constitutiones; Superiores autem minores locales ne
constituantur ad tempus ultra triennium; quo exacto,
possunt ad idem munus iterum assumi, si constitu-
tiones ita ferant, sed non tertio immediate in eadem
religiosa domo.
The text plainly betrays the preference of the legis-
lator for temporary over permanent superiors. Unless
the respective constitutions determine otherwise, the
higher superiors should be elected for a certain limited
term. As to minor local superiors the Code, setting
aside the constitutions, simply rules that their term of
office should not last more than three years, after the
expiration of which they may be re-appointed for another
term of the same length, provided the constitutions are
not opposed to reelection. But no one may serve three
successive terms as superior of the same house.
The question whether it is more expedient to have
temporary or permanent superiors is not without interest.
That opinions upon it are divided is, we believe, due to
more or less subjective prepossessions and perhaps to
circumstances. It may be well to state the reasons for
permanent superiors first. Superiors, like bishops, ought
to be permanent, because permanency of tenure produces
a stronger bond of charity between governor and gov-
erned. Besides, a perpetual superior is apt to take better
care of his flock and to acquire experience which will
benefit the subjects as well as the government itself.
►ogle
k ,] , Original from
UNIVERSITY OF WISCONSIN
120 RELIGIOUS
Against perpetual superiors the following reasons are al-
leged: humility and zeal arc promoted by short terms;
experience teaches that temporary superiors do not repeat
the mistakes of tfieir predecessors. If the predecessor
has been a bad or incapable ruler, the evil produced is
neither so intensive nor so extensive, and can be more
easily remedied. Corruption is not so apt to become
rooted during a short regime. When perpetual superiors
grow old, their government is also apt to grow old and
rusty.8* Lastly, favoritism does not grow so strong and
pernicious under temporary superiors. It is not necessary
to develop this argument further, but one thing is certain,
vis., that the Congregations of the Roman Court have
never been in favor of perpetual superiors for female or-
ders and congregations. In Italy they do not even allow
abbesses to remain in office more than three years, or
to be reelected for a third term, unless there is M a strict
necessity " and a unanimous vote of the Sisters.63 As
to the Benedictines it is known that, under their rule,
abbots are elected for life, and the Code permits this
custom, if enacted by the Constitutions,06 to continue.
Minor local superiors are not henceforth allowed to
hold office for more than six years. Who are these
superiors? All who are inferior in rank and power to
the " provincials and their vicars and all others who have
the same powers as the provincials." Therefore, con-
ventual priors, guardians, custodes and similar superiors,
who enjoy the same power in their houses as provincials.
«* Cfr. Piatus M., /. ft, I, 491 (cd. cisions on this point In the regesta
a). An expedient for counteracting of the S. C. EE. et RR.
the evils attendant upon old age U «« The Cassinese Congregation had
the election of a coadjutor, an waa triennial abbots, the English Con*
done in several instances, in these gregation elects its abbots for eight
latter years, in the O. S. B. years.
■'■'■ There ia a great number of dc-
"-.
^
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 506 121
do not fall under this prohibition." But we do believe
that all local superiors who are not endowed with juris-
diction but enjoy only domestic power, as in congre-
gations of non-exempt religious, are affected by the law.
Neither are superiors of diocesan institutes which have
only one house exempt from the law of a triennial
term. The mystic argument that a superior, like a
mother, should not be removed from his family, has no
juridical value.
election of religious superiors
Can. 506
§ i. Antequam ad Superiorum maiorum electionem
deveniatur in religionibus virorurn, omnes et singuli c
Capitulo iureiurando promittant se electuros quos se-
cundum Deum eligendos esse existimaverint.
§ 2. In monasteriis monialium, comitiis eligendae
Antistitae praesit, quin tamen clausuram ingrediatur,
Ordinarius loci aut eius delegatus cum duobus sacer-
dotibus Bcrutatoribus, si moniales eidem subiectae
sint; secus, Superior regularis; sed etiam hoc in casu
Ordinarius tempestive moncri debet de die et hora
clectionis, cui potest una cum Superiore regulari per
sc ipse vel per alium assistere et, si assistat, pracesse.
§ 3. In scrutatores nc assumantur ipsarum monia-
lium confessarii ordinarii.
§ 4. In mulierum Congregationibus electioni Anti-
stae gencralis praesideat per se vel* per alium Ordi-
narius loci, in quo elect io peragitur; cui, si agatur de
Congregationibus iuris dioecesani, peractam electionem
confirmare vel rescindere integrum est pro conscien-
tiae officio.
« Fiu» V, " Romani Pontificis." Julj 11, 1571; Sixtua V, "Ad Romanum
tfectat," Oct. n, 1588.
►ogle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
122 RELIGIOUS
Can. 507
_
§ 1. In elcctionibus quae a Capitulis fiunt, servetur
ius commune de quo in can. 160-182, praeter cuiusque
religionis constitutiones eidem non contrarias.
§ a. Caveant omnes a directa vel indirecta suf-
fragiorum procuratione tarn pro seipsis quam pro
aliis.
§ 3. Postulatio admitti potest solum in casu extraor-
dinario et dummodo in constitutionibus non prohi-
beatur.
These two canons establish the regulations or laws to
be observed in the election of superiors. We may say
that can. 506 determines the preliminaries, whilst can. 507
governs the act of election.
§ 1 of can. 506 enjoins all the members of religious
institutes of men, before they proceed to the election of
higher superiors, to take an oath by which they promise
to elect only such candidates as they think should, before
God, be chosen. This oath was prescribed by Clement
VIII, and reinforced so strongly by a decision of the
S. C. Concilii,68 that not a few authors regarded it as
essential.09 The Code cannot be construed as enjoining
it under penalty of nullity of the election, though it im-
poses it as a most serious and grievous obligation, as is
evident not only from the sacredness of the oath itself,
but also from the importance of the business in hand.
The oath may be administered either by the presiding
officer or by the notary of the religious institute shortly
before the election takes place, and must be taken by
"each and every member of the chapter." This term
te " Nullus omnino," July as, 08 Ferraris, Prompta Bibliathcc;
1599. I 23; S. C. C„ Sept M, 1624. *• v. " E lectio," IV, 7 ff ,
I 1.
gle
, ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANONS 506 AND 507 123
would indicate that each has to take the oath singly, yet
the electors would no doubt comply with the spirit of the
law if all answered in a body, while one pronounced
the formula of the oath.70 The holding up of three fin-
gers of the right with the left hand on the breast is suf-
ficient, whilst the formula is pronounced.
The Code then defines the object of the oath. This
object is more precisely described in the constitution of
Clement VIII, thus; to elect him whom, in conscience,
they believe to be more righteous and more fit. Our
Code throughout uses the term *' fit " (idoneus), not
worthy (dignus). Therefore it is left to the conviction
of everyone of the electors to give his vote to the one
whom he believes more fit to fill the office. Fitness
must be judged according to the qualities required by, and
the obligations imposed on, the office under consideration.
One quality should, according to St. Benedict's Rule,
never be overlooked, vie, discretion.71
§§ 2 and 3 treat of the election of superiors in com-
munities of nuns (moniales), that is, sisterhoods with
solemn vows. If they are subject to the Ordinary of
the diocese, the latter or his delegate, with two priests as
tellers, must be present at the election of the superioress,
without, however, entering the enclosure. If the nuns
are subject to a regular prelate, he must be present,
though also in this latter case the Ordinary of the dio-
cese must be duly informed of the day and hour of the
election, and may be present himself or by proxy at the
election, together with the regular prelate, who must
to The formula might read: "Ego — these last words only if the Gos-
N. N., huius capitutt membrum, pel is Uftd.
promitto el \uro, me cleeturum Ti Rule c. 64. Piatus M., /. e*,
quern secundum Deum eligendum I, 494. justly remarks that the physi-
tsse eiistimo. Sic me Deus adiu- cal, mental, and spiritual qualities
V€t (ft *<wc sancU Dei evangelic)*' should be considered conjointly.
..-.
jle
Original fro ni
UNIVERSITY OF WISCONSIN
124 RELIGIOUS
cede the presidency to the bishop. The confessors in
ordinary of the nuns may not be appointed tellers at such
elections.
As already stated, there are only a few convents in
this country to which this canon applies. Observe that
the Ordinary or his delegate are not allowed to enter the
enclosure, which is here intended to be the papal one ;
but they may watch the procedure at the grate of the
church.
Neither the bishop, nor his chancellor, nor his vicar
general, nor his delegate are entitled to gather or register
the votes.72 This right belongs to the two tellers, who,
according to our Code, must be priests, but not regular
confessors of the nuns. The same rule applies to the
regular prelate who attends the election.73 The votes
must be deposited in a closed urn or box, which is to be
opened by the prelate, bishop, or regular prelate, and the
two tellers. The result is to be announced by the prelate.
The same process must be repeated if the election was
without result.
§ 4 rules that the Ordinary in whose diocese the elec-
tion of a superioress general of a woman's congregation
takes place, should assist thereat either himself or by a
delegate. If the institute is a diocesan one, the Ordinary
may ratify or nullify the election, according to his good
pleasure and conscience. A distinction is here made
between papal and diocesan congregations of women.
At the election of a superior general of the first class the
Ordinary in whose diocese the election is held, acts as
delegate of the Holy See, and presides either himself or
by proxy.74 But he has no right to nullify the election
72 S. C. EE. el RR.. June 19, Richter. Trid.. p. 409; S. C Rel..
1671; April, 1729 (Birzarrl, /. c, Aur. 27, [910 (.4. Ap. S., II. 73*>.
P. 265 1: p. 323 fX 't* Leo XUI. -'CondilM," II. n. x.
T3 Trid., sess. 25, c. 6, de re^.;
ogle
k .,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANONS 506 AND 507 125
a>
if it has been held according to common law and the con-
stitutions of the order. If the Ordinary is accompanied
by one or two priests, these are not to act as tellers or
to meddle in the election, by insinuation or other means.
They are mere spectators. The election of tellers is the
first act of the chapter meeting. Besides two tellers or
scrutineers, there should also be chosen a secretary.7*
The duties of the tellers consist, as explained in Vol. II
under can. 171, in collecting the votes, counting them,
and comparing their number with that of the persons
entitled to vote. If the number of votes is equal to
that of the voters, and no invalid ballot is found, the
votes deposited in the urn are opened and read before
the chapter. All these acts must be faithfully recorded
by the secretary, who, like the tellers, is bound by the
obligation of natural and official secrecy. The bishop
and his delegate may be present in the election room,
for the law of enclosure docs not debar him.
Over diocesan institutes the Ordinary enjoys greater
power. Not only may he preside at the election of the
superioress, but he may nullify the election or reject the
person elected according to the dictates of his con-
science.79 After the third ballot, if no election has taken
place, the bishop may appoint anyone he chooses. This
right belongs to the Ordinary also in elections of papal
congregations.77 The question may be asked whether
the delegate of the bishop may claim the same right as
the bishop himself if he were present The answer is
affirmative if the Ordinary enjoined his delegate to act
for him without reservation, but negative if he has
reserved to himself the power of ratification or nullifica-
tion or made an exception in regard to a certain person,
T»" Noma*," n. aa6. T7 Cfr. can. 101, | i.
t» " Coniitae." I. n. 9.
oogle
^ ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
■
126 RELIGIOUS
or posited a condition. For, on the one hand, the Ordi-
nary has full power over diocesan congregations, and, on
the other, the delegate acts as a mandatarius, who must
stick to the terms of his mandate and is not allowed
to transgress the limits of his commission. However, in
elections performed in papal congregations, the bishop's
delegate must, like the bishop himself, observe the regu-
lations laid down in the Constitutions and is therefore
not at liberty to ratify or nullify the election unless a
substantial mistake was made. Neither arc the bishop
or his delegate entitled to take exception to any person
elected if she enjoys the qualities prescribed by the com-
mon law and the constitutions of the institute.
The three paragraphs of can. 507 govern the act of
election. The first refers to the rules laid down in can.
160-182. Whenever, therefore, a chapter is held for the
purpose of an election, the rules referred to must be
strictly obeyed, and the regulations in the constitutions
of the respective religious congregation or order govern-
ing elections may be followed only in so far as they are
not against canons 160-182. These, we believe, have
been sufficiently explained in our Vol. II.
§ 2 is taken verbally from Clement VI IPs " Nullus
omnino/' which strictly forbids any soliciting or procur-
ing of votes, either for oneself or for another, directly
or indirectly. Direct solicitation consists in campaigning
for a candidate by collecting votes or getting promises to
the effect of having that person elected in preference to
another. Indirect solicitation consists in secretly influen-
cing the electors, by words, in writing, or by promises,
insinuations, and favors, on behalf of a candidate. All
such machinations are strictly prohibited. If direct, they
may approach simony, i. e., giving temporal things for a
spiritual thing, such as the office of superior.
{ '.vmiIp Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CANON 507 127
Altogether different from soliciting votes is the
tractatus praevius or preliminary meeting, at which the
merits or demerits of the candidates are freely and
charitably discussed, in order to facilitate the election.
This is not forbidden, and often produces good results,
especially in a community of which many members live
outside the convent and know but little of the qualities
of the. candidates and the needs of the congregation at
large. But even in such preliminary meetings all pres-
sure and solicitation must be avoided.
§ 3 mentions population as being admissible in an
extraordinary case if the constitutions do not prohibit it.
Concerning that point enough has been said under can.
179 ff. But attention must be drawn to the injunction of
the Code that one who is not strictly eligible to office by
reason of a canonical impediment may be postulated only
in an extraordinary case. This means that, as a rule, an
election should take place, and only if the candidate suf-
fering from a canonical impediment is absolutely neces-
sary for the welfare of the community, may he be postu-
lated. In the petition that has to be sent to the S. Con-
gregation of Religious asking for the privilege of postu-
lation, the fact must be mentioned that the Constitutions
prohibit postulation if this is the case. In such a case
the suppression of the prohibition mentioned would in-
validate the grant of the favor, because the legislator
could not be supposed to know of the particular law, t. e.,
the Constitutions, and therefore might not grant postula-
tion if he knew. Therefore the reasons for postulation
forbidden by the Constitutions and against the common
law must be stronger than in the case of prohibition only
against the common law.
Here again attention may be drawn to the strict defi-
nition of postulation and the canonical impediments set
Coogl
Original from
UNIVERSITY OF WISCONSIN
128 RELIGIOUS
forth in can. 304. All confirm our view that the abbot
of a Benedictine monastery may be elected but not postu-
lated by another monastery of the same congregation.
The reason why we restrict the statement to monasteries
of the same congregation lies in the fact of stability,
which, though primarily intended for the monastery, was
occasionally extended to the congregation. Besides, since
each congregation differs from all others in some point
of discipline, it would not be advisable to elect an abbot
from a different congregation, although the common law
(can. 504) only speaks of profession in the same religio,
and does not therefore exclude other congregations of the
same order. The idea that there is a sort of mystic mat-
rimony between the abbot and his monastery we reject
absolutely, since it has no prop in the new Code, which
rather favors temporary superiors.
residence of superiors
Can. 508
In sua quisque domo Superiores commorentur nee
ab eadern discedant, nisi ad norm am constitutionura.
Religious superiors shall reside in their respective
houses, which they are not allowed to leave except as
far as the Constitutions permit.
This is the law of residence enjoined on superiors, not
only of higher, but also of lower rank, because the canon
mentions superiors in general. What it says concerning
the respective house is to be understood of the office
itself. Hence the general has to reside in the generalate,
or if this is not accessible, in the house which serves as
generalate (casa gencralizia, in Italian). The provincial
must reside in the house assigned to him as his habitual
dwelling; the local superior, in the house of the local
>Ie
f ■ j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 509 129
a
a
community, and so forth. A stricter rule is laid down,
as we shall see presently, concerning enclosure.
The obligation of residence, grave as it is in general,
varies according to the importance and requirements of
the office. If it is true that a bishop's duties demand
his personal residence in the diocese, it is perhaps not
too much to say that a religious superior must exert his
influence and authority within the community assigned to
him, because a religious superior, too, is chosen in view
of his personal qualities (de industria personae). Fur-
thermore, a certain amount of enclosure or separation
from the world and its affairs 78 is incumbent also on
superiors. Lastly, the vow of stability, for instance, with
the Benedictines, forbids frequent absence from the
monastery, for one is not released from this vow by be-
coming a superior. Of course, if business or necessity
or evident utility, or Christian charity, or the command
of a higher superior call one away, he is justified in ab-
senting himself, not only in the court of conscience but
before the legislator as well, provided, of course, the re-
spective Constitutions are properly observed.
duty of instructing their subjects
Can. 509
§ 1. Omnis Superior debet notitiam ct exsecutionem
decrctorum Sanctac Sedis, quae religiosos respiciunt,
suos inter subditos promovere.
§ 2. Curent Superiores locales:
i.° Ut saltern scmel in anno, statis diebus, publicc
legantur propriae constitutiones, itemque decreta quae
publice legenda Sancta Sedes praescribet;
D
78 C. i, 9 Si Clem. Ill, 10, for- joins residence in the place of office,
bids the frequenting of princely unless for the sake of studies,
courts, and fi 7, ibid., strictly en-
)}C
J ^ Original fro rn
UNIVERSITY OF WISCONSIN
130 RELIGIOUS
a.° Ut saltern bis in mense, firmo praescripto can.
5^5. § 2, christianae catcchesis habeatur instructio pro
conversis et familiaribus, audicntium conditioni ac-
comznodata, et, praesertim in religionibus laicalibus,
pia ad omnes de familia cxhortatio.
-
Superiors should see to it that the decrees made by the
Holy See for religious are made known to their subjects
and carried into practice. For this purpose n. 1 of the
following paragraph insists that at least once a year, on
stated days, the Constitution be publicly read together
with those decrees which the Holy See shall prescribe
to be read.
This is a timely injunction, in concordance with Mala-
chy 2, 7: " For the lips of the priest shall keep knowl-
edge, and they shall seek the law at his mouth; because
he is the angel [messenger] of the Lord of hosts."
Knowledge presupposes study of the law, and especially
of canon law, whilst putting into effect supposes knowl-
edge and authority, or at least good will. The decrees
referred to as more particularly touching religious, are
those of the Holy Office concerning matters of faith, —
all of which, as explained under can. 501, § 2, pertain to
that Congregation ; T0 the decree about the manifestation
of conscience ; s0 the decree on the litterae tcstimoniales
before receiving novices,81 etc. This rule was made by
the S. Congregation of Religious, which enjoined seven
decrees to be read publicly." However, since these de-
crees are at least substantially embodied in the Code we
Q
T& S. O., May 15, 1901. Qulari quidem," March 27, 1896;
80 " Quemadmotium," Dec. 17, " Ptrpentis," May 3, 1902; "Sacra
1800. Tridentina," Dec. jo. 1905; " Prae-
■1 S. C. super Statu Reiful., " Ro- let ea." Sept. 1, 1909; " Ecclesia
mani Pontificis," Jan. .?«;, 1848. Chrxsti," Sept. 7, 1909; " Sanctitn-
82 The S. C. Rfl.. July 3. lOio, mum." Jan. 4. iffto.
mentions, bcsiJes those two: "5m-
"-.
>ogle
£ * ^ .. ^L> Original from
UNIVERSITY OF WISCONSIN
CANON 509 131
a
a
believe we are correct in stressing the future tense of
n. 1, § 2. Hence, unless the reading of these old de-
crees is especially prescribed by the Constitutions, they
need no longer be read publicly. But any decree which
the Holy See shall in future order to be read, must be
read publicly. It would, however, be in keeping with
the spirit of our canon if the section of the Code dealing
with religious would be frequently read in religious com-
munities.
No. 2 of § 2 speaks of catechetical instruction to be
given at least twice a month, in a manner adapted to
their capacity, to the laybrothcrs or sisters and depend-
ents (familiares) of every religious community, and in
lay institutes a pious exhortation to all members of the
family. The novices (see can. 565, § 2) should receive
more frequent instruction. Observe that the canon does
not insist on such conferences for clerical institutes, the
reason evidently being that they are supposed to have
been instructed before and trained in the principles of the
spiritual life, and to live in a higher atmosphere. Too
many conferences may easily become a burden to the con-
ferencier as well as to the hearers. The legislator wisely
tells the lecturer not to speak above the heads of the
hearers. Some practical subjects are mentioned in a
decree of the S. C. of Bishops and Regulars, viz.: mental
prayer, choir service, examination of conscience, fre-
quent confession, silence, chapter of faults, reading at
table and from Holy Scripture, pastoral conferences,
regular discipline, acquisition of solid virtues, and other
spiritual exercises."
88 Aug. 22, 1814 (Bizzarri, /. c, p. 44 f.).
".
§le
/ " ^ xrt\ , Original from
UNIVERSITY OF WISCONSIN
■
132 RELIGIOUS
dutvt of reporting to the holy see
Can. 510
Abbas Primas, Superior Congregationis monasticae
ct cuiusvis religionis iuris pontifkii Moderator su-
premus debet quinto quoque anno vel saepius, si ita
ferant constitutiones, relationem de statu religionis
ad Sanctam Sedem per documentum mittere, subsig-
natum a se cum suo Consilio et, si agatur de Congre-
gatione mulierum, etiam ab Ordinario loci in quo
suprerna Antistita cum suo Consilio residet.
The abbot primatef the superior of every monastic con-
gregation, and the superior general of every pontifical
institute must send every five years, or if the Constitu-
tion prescribes it, oftener, a written report on the status
of his community to the Holy See. This report must
be signed by the respective superior and his counsellors ;
and when the congregation is one of women, also by the
Ordinary in whose diocese the general superioress with
her counsel resides. This law, in its general form, is
new, for the 1906 decree of the Congregation of Bishops
and Regulars touched only religious with simple vows.84
This same decree has appended an " Instruction," which
contains ninety-three questions to be answered, somewhat
like a questionnaire for exemption claimants. This in-
struction, however, cannot be simply extended to all re-
ligious, and it might be reasonably shortened. It con-
tains a preamble and three parts: on persons, things
(especially property), and discipline, on which a report
was to be made every three years. Hence the inser-
tion into our Code of the phrase: "or oftener," if the
6« July 16, 1906 {Annal. Eccl., 1906. t. XIV, p. 340 ff.); Engliih text
in Appendix to this volume.
►ogle
^ ,|,, Original fro nn
UNIVERSITY OF WISCONSIN
CANONS 511, 512, 513 133
Constitutions so determine. The Code says, " per docu-
mcntum mittcre," to send a written statement, probably
in order to preclude the pretext of taking a trip to the
Eternal City. What was formerly demanded only of re-
ligious congregations, is now enjoined on all religious
without distinction, except diocesan institutes, which are
responsible only to the Ordinaries.
c
S
visitation
Can. 511
Maiores religionum Superiores quos ad hoc munus
constitutiones designant, temporibus in eisdem defi-
nitis, omnes dornos sibi subiectas visitent per se, vel
per alios, si fuerint legitime impediti.
in
Can. 512
§ 1. Ordinarius loci per se vel per alium quinto
quoque anno visitare debet :
x.° Singula monialium monasteria quae sibi vel Sedi
Apostolicae immediate subiecta sunt ;
a.
2.0 Singulas domos sive virorum sive mulierum
Congregationis iuris dioecesani.
§ a. Visitare quoque eodem tempore debet:
z.° Monasteria monialium, quae regularibus subdun-
tur, circa ea quae ad clausurae legem spectant; imo
etiam circa alia omnia, si Superior regularis ea a quin-
que annis non visitaverit ;
2.0 Singulas domos Congregationis clericalis iuris
pontificii etiam excmptae, in iis quae pertinent ad
ecclesiam, sacrarium, oratorium publicum, sedem ad
sacramentum poenitentiae ;
3.0 Singulus domos Congregationis laical is iuris
pontificii non solum in iis, de quibus in superiore
oogle
% ,1,^ Original fro ni
UNIVERSITY OF WISCONSIN
-
134 RELIGIOUS
numero, scd etiam in aliis. quae internam disciplinam
spectant, ad normam tamen can. 61 8, § 2, n. a.
§ 3- Quod ad bonorum administrationem attinet,
scrvcntur pra-scripta can. 532-535.
Can. 513
§ I. Vi si tat or ius ct officium ha bet interrogandi re-
ligiosos quos oportere iudicaverit et cognoscendi de iis
quae ad visitationem spectant; omnes autem religiosi
obligatione tenentur respondent secundum veritatem,
nee Superioribus fas est quoquo raodo eos ab hac ob-
ligatione avertere aut visitationis scopurn aliter im-
pedire.
§ 2, A decretis Visitatoris recursus datur in devo-
lutivo tantum, nisi Visitator ordine iudiciario proces-
serit.
These three canons establish, first and above all, the
duty of the religious superiors as to visitation, secondly,
the part assigned by law to the Ordinary concerning the
same business, and, lastly, the rights and duties implied
by visitation.
The fourth Lateran Council (1215) ordained that at
the general chapters visitors should be appointed, who
should be sent out in the name of the Holy See and cor-
rect whatever needed correction.85 The Council of
Vienne ( 131 1— 1313) ruled that visitation should be made
every year by the Ordinaries or others of the monasteries
of nuns and opportune remedies employed against abuses
which seem to have crept in.8fl The Council of Trent
repeated the aforesaid canons and enjoined frequent
visitation upon all superiors, especially the heads of or-
ders, who should also visit the monasteries called com-
•■ C. 7. X, III, 35. s«C. 2. Clem. III. 10.
§le
/""* -» ^ il,-. Original from
UNIVERSITY OF WISCONSIN
CANONS 511, 512, 513 135
tnendae*7 All these laws prove the importance of
canonical visitation.
Can. 511 provides that the higher superiors of religious
orders as well as congregations, whom the constitutions
entrust with the office of visitors, should, at times stated
in the constitutions, visit all the houses subject to them.
If they are lawfully prevented from performing that
office personally, they may send others in their stead. It
is evident that here regular or ordinary visitors are in-
tended, because they perform that task in virtue of their
office. Besides these, there may be extraordinary visitors
and visitations for certain special causes, which are made
known to the visitors, or perhaps to the Apostolic See,
which may send a visitor under the circumstances.
Hence surprise visitations are possible." As a rule,
however, visitations are to be made at stated times, the
determination of which is left to each institute.
The extent of the visit is indicated by the phrase all
houses, in as far, namely, as they are subject to the su-
periors. For it may be that some houses are exempt
from visitation, or at least from visitation by a certain
superior. All such conditions should be determined by
the rule and constitutions.
The Code permits the regularly appointed visitator,
in case of a lawful impediment, to send a substitute, ac-
cording to the well-known rule of Canon Law, " What
one may do himself, he may do through another." B9
Note, however, that the delegate must follow the instruc-
tions of the delcgans, and should the latter die before
the delegate has begun his visitations, the delegation
87 Scst. 25, cc. i, 8, 20, tie rcg. canonical visitation, nor had he been
B9 The visit of the late Abbot- sent by the Holy See to our country
Primate of the Benedictines to for that purpose.
America, in 1910-1911, was not a 80 Reg. Xuris in 6*, 68, 71.
oogle
% ,j , Original fro m
UNIVERSITY OF WISCONSIN
i36 RELIGIOUS
would cease unless it was given by the Constitutions. A
visitation is supposed to have commenced after the read-
ing of the letter of delegation to those who are to be
visited.00 For the rest, the delegate, unless something is
especially excepted, enjoys the same power and has the
same duties as the one who delegated him, as shall be
seen in can. 513.
Under can. 512, § 1, the Ordinary of the diocese must,
either himself or by delegate, every five years visit every
convent of nuns in his diocese subject either to himself
or immediately to the Holy Sec ; also the houses of male
and female diocesan congregations. The law gives full
sway to the Ordinary over two kinds of institutes: Nuns
with solemn vows, whose convents are subject either to
the Ordinary himself or immediately to the Holy See,
and diocesan congregations of both sexes. Concerning
both no exception is made as to persons, places or things
to be visited ; and hence, as shall be seen in the follow-
ing canon, they are subject to visitation in all respects.
The only difference between the two kinds of religious,
so far as episcopal visitation is concerned, lies in the fact
that the convents of nuns with solemn vows are visited
by the Ordinary as a delegate — de iure — of the Holy
See, and the houses of diocesan congregations by the
Ordinary in his own capacity. The effect is the same.
According to § 2 the bishop may also visit:
(1) The convents of nuns with solemn vows, which
are subject to a regular superior, concerning the en-
closure and everything else, if the regular superior has
not made a canonical visitation for five years ; for in this
case the Ordinary is called upon to supply the negligence
of the superior. As to the enclosure, the Ordinary is
entitled to examine the communion-crate and the confes-
80 Piatu* M., I, 638 (ed. a).
n'C
Original from
UNIVERSITY OF WISCONSIN
■
pi
CANONS 512, 513 137
sional-crate, the inner and outer walls of the enclosure,
the interior choir, the dormitories, cells and other rooms
under enclosure. The Ordinary should wear his rochette
and mantellette, be accompanied by two priests, and pro-
ceed without the assistance of any religious. If the
Ordinary visits a convent because of the neglect of the
regular superior, he is entitled to ask any nun personally,
inquire about the observance of the enclosure and the
number of religious, alumnae, and servants, and require
a statement of the temporal and financial affairs.91
(2) He may also visit the houses of clerical papal con-
gregations, including those that enjoy exemption, but
only in what pertains to the church, sacristy,92 public
oratory, and confessional. There may be doubt concern-
ing the phrase: sedem ad sacrament um pocnitentiae —
the seat for sacramental confession. Is the singular
number instead of the plural (scdes) purposely made use
of? Benedict XIV, in " Firmandis/' speaks only of one
confessional, namely, that reserved to the parish priest.08
But this interpretation appears to us too formal. Prob-
ably the term " seat M is here to be taken as a synecdoche
or metaphor expressing all the confessionals. For the
rest we refer to what we have said under canon 344.
(3) The Ordinary should also visit the houses of the
lay institutes with papal approbation, not only concern-
ing the places mentioned under n. 2, but also concerning
other matters which belong to the internal discipline,
with due regard to can. 618, § 2, n. 2.
As to the administration of temporal affairs, especially
property, the Ordinary must observe the rules enacted
in can. 532-535, which make a distinction between con-
01 S. C. EE. et RR.. Sept 8. 1725 the waste place for sacred things.
(Buzarri, I. c, p. jio f.i. but of the sacristy proper.
9i The Latin reads sacrarium; but >s Nov, 6, 1744, | 7.
il certainly not to be understood of
gle
Original fro ni
UNIVERSITY OF WISCONSIN
138 RELIGIOUS
vents of nuns and monasteries of regulars, houses of
papal institutes and of diocesan congregations. Note,
however, that the bishop or Ordinary has no right to
make any change in any point of discipline which is in
accord with the constitutions approved by the Holy See,
or the approbation of which is pending.
Can. 513 determines the rights and duties of the
canonical visitator, which, according to § 1, are to ask
any religious who he thinks should be asked, and to take
cognizance of everything pertaining to a canonical visi-
tation. On the other hand all religious are obliged to
answer truthfully, and the superiors are not allowed to
prevent them from fulfilling this obligation, or otherwise
to impede the visitation. The questions which the visitor
should chiefly ask? according to approved authors,8* are
the following:
(a) About the regular discipline, observance of vows,
rules and constitutions, life in common and spiritual
exercises in the choir and elsewhere, fast and abstinence,
fraternal charity;
(b) Concerning the duties to be performed by the
superiors and officials, teachers and employers towards
their subjects and inferiors, about conferences and chap-
ters of faults, schools and instruction, reading of the
decrees prescribed, observance of laws and customary
rubrics ;
(c) Regarding temporal affairs, especially Mass obli-
gations, founded and manual, property and debts, method
of bookkeeping, alienation, etc.
The Code furthermore says that the visitator should
take cognizance of everything pertaining to visitation.
Though not explicitly stated in the Code, a distinction
lies between visitators endowed with jurisdiction proper,
•4 Cfr. Piatui M., I, 639 ff. (ed. 2).
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 513
139
-■
such as Ordinairies and regular prelates, or exempt vis-
itors, and visitators endowed with domestic power {po-
testas dominativa) only. The former may inflict cen-
sures, whereas the latter may not, but may deal out such
penalties only as the constitutions permit; and these,
since they are given for non-exempt religious, cannot in-
clude ecclesiastical censures. This distinction becomes
important in the way of procedure, which may be either
paternal (also called evangelical) " and judiciary or ca-
nonical, as is evident from § 2.
A visitator should proceed paternally and use the
canonical remedies only in extraordinary cases, as, e. g.,
when a religious has committed a crime that calls for
juridical procedure. But procedure supposes a plaintiff
and witnesses, or at least a strong opinion against the
accused religious, and therefore the beginning of a trial,
as shall be explained in the fourth book.
The next question arises as to the obligation of answer-
ing truthfully the questions of the visitator. This sup-
poses, first and above all, that the visitator has been ad-
mitted. If he acts in an official capacity and is lawfully
appointed, admission cannot be refused to him by the
religious. The members of the community must answer
his questions, each according to the dictates of his con-
science, with a view to the common welfare. But what if
the visitator should demand of a religious that he reveal
the secret misdeeds of other religious? Is the one thus
asked bound to obey ? Our answer is negative, for the
office of visitator is limited to the public welfare of the
community, and, therefore, as long as transgressions are
secret, the transgressor has a right to his good name also
before the visitator.1"* Should a crime have been com-
•0 Math. 18, is; cf. Suarez, Dt Ofl Su«r«, /. c., maintains the of-
Rsl., Ir. X, I. 10, c. 8, n. 9 (Vol. firmative opinion, but this must be
l6, not f). called entirely peculiar to the So-
Go >gle
Original from
UNIVERSITY OF WISCONSIN
140
RELIGIOUS
-
mitted, which is liable to become notorious to the detri-
ment and diffamation of the whole community, the reve-
lation of that crime would be required by the common
welfare. But transgressions which have been committed
long ago, or have been remedied, or are known only by
hearsay, or to the visitator only as an entrusted secret,
are not to be manifested, even though the visitator should
demand it.
The last clause of § I admonishes superiors not to
deter their subjects from doing their duty at the time
of visitation, and not to impede the latter. The text is
plain enough. Superiors should not send religious away
at the time of the visitation, or force them by threats to
keep silence.
§ 2 of can. 513 says that no appeal in suspensivo from
the decrees of the visitator is permissible, unless he has
proceeded in a judiciary way. Reference is made to the
Constitution of Benedict XIV, "Ad mUitantis," of March
30, 1742, which rules that no inhibition, or what is here
called recourse, may be had from decrees concerning di-
vine worship and its due observance according to the
sacred liturgy nor from decrees concerning the care of
souls, the repair of churches, the administration of the
sacraments in churches, the spiritual and temporal gov-
ernment of convents of nuns."7 Therefore the decrees
and corrections enjoined by the visitator must by all
means be carried into effect. Should they prove irksome,
or, what is worse, should they contradict the Constitu-
tions and lawful customs of the congregation, recourse
may be had to the S. C. of Religious. Sisters of papal
congregations may appeal from the decrees of the Or-
eiet* of Jesua: his quotation* from
sacred writers are to be taken for
what they are worth. The natural
law is above individual piou* senti-
ments.
•i Bull, Prati, 1845, t. I, p. 164,
nn. 6, id, 19, 70.
►ogle
Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 514 141
dinary to the metropolitan or the Apostolic Delegate.
We add that the visitator, unless he foresees judiciary
procedure, should not take anyone with him, either as
secretary or counsellor, as the paternal way requires
secrecy.98
pastoral duties and rights
Can. 514
§ 1-. In omni religione clericali ius et officium Su-
perioribus est per se vel per aliurn aegrotis professis,
novitiis, aliisve in religiosa domo diu noctuque degen-
tibus causa famulatus aut educationis aut hospitii aut
infirrnae valetudinis, Eucharisticum Viaticum et ex-
tremam unctionem ministrandi.
§ 2, In monialium domo idem ius et officium habet
ordinarius confessarius vel qui eius vices gerit
§ 3. In alia religione laicali hoc ius et officium spectat
ad parochum loci vel ad cappellanum quern Ordinarius
parocho surTecerit ad normam can. 464, § 2.
§ 4. In funeribus servetur praescriptum can. 1221,
1230, § 5.
§ 1 says verbally — the text is too important to brook
paraphrastic translation — : "In every clerical institute
the superiors have the right and duty to administer, cither
themselves or through another, the Eucharistic Viaticum
and Extreme Unction to the sick professed members and
novices and to others who dwell day and night in the
religious house, either by reason of service, or educa-
tion, or hospitality (hospitii) or sickness." This is a
reasonable and welcome extension of the privileges
granted to some orders 80 in favor of their dependents.
fiSPiatus M., I, 643 <ed. a). bites; S. C. EE. et RR., July ai,
•0 For initance, to the Barna- 1848 (Bizzarri, /. c, p. 563 f.)-
C I Original from
iOO^K_ UNIVERSITY QFWI5C0NSIN
-
■
pi
142 RELIGIOUS
(1) All clerical institutes (/. c, orders or congrega-
tions), no matter whether exempt or non-exempt, whether
of papal or diocesan institution, enjoy the right and have
the duty of taking spiritual care of their sick members.
This care devolves first and above all upon the superior,
and, in case he is impeded, upon any one commissioned
by him. Note that only clerical institutes are here in-
tended, that is to say, orders and congregations whose
members are mostly priests, or should be mostly priests
by virtue of their constitutions, though, perhaps, in con-
sequence of extraordinary conditions, for instance an
epidemic, war, etc., the number of lay brothers is greater
than that of priests.
(2) The sick members enumerated are of a twofold
class: religious and others. The term religious com-
prises the novices, concerning whom no difficulty was
ever raised. But the term aliive was not always under-
stood in the same sense. These others, then, must dwell
by day and by night in the religious house. By u day
and by night " may signify habitual or protracted dwell-
ing, or one day of twenty-four hours; however, " diu"
(from dies) generally has the meaning of a protracted
stay, 1. e., lasting more than one day, although we believe
that in case of sickness the principle that " favors should
be widely interpreted " may be applied here. The next
term, " religious house/' is doubtless to be taken as the
entire premises or precincts which belong to a religious
house, for it seems to stand for the well-known canoni-
cal expression " infra septa l monasterii," j, c ., within
the walls or hedges of the monastery. Hence even a
number or group of buildings may be understood as con-
stituting u a religious house,'1 so long as religious actually
1 Septa ii uied hy Cicero to desig- Koman people toted in the assem-
nftte the incloGure within which the bliea (comitij) .
oogle
{"* -» v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 514 143
possess and inhabit the buildings. Thus a hospital,
hostelry, school, house for hired hands, workshops, etc.,
if they form part and parcel of a religious house, though
distinct from it, may truly be said to be religious houses.
However, these buildings must be within the precincts
of the dwelling of the religious, else they would not
fall under the category of religious houses, which are
houses inhabited by religious. Therefore a distant farm
house or villa, or a college or school entirely separated
from the religious house and attended perhaps by only
one religious, cannot be said to share the privileges of
religious houses.
Religious houses, then, may shelter servants, students,
guests or sick people. The first class, servants — causa
famulal us — are those who work for the religious and
live within the precincts of the monastery under the
habitual (though not religious) obedience of the supe-
riors.9 Hence they must have board and lodging in the
religious house, or at least in a building on the premises
of the religious house, though they may truly be called
hired hands. But if they have their lodging outside the
religious house they may not be called servants. Another
class who falls under the category of familiarcs or de-
pendents is that of boarding students, who, together with
their education, also receive board and lodging from the
clerical institute. But day-scholars are excluded. The
next category is that of guests, who live in the religious
house habitually. Hence if a religious house would keep
boarders, say, for instance, young Catholic men or stu-
dents who work in shops or study at school, these would
be living in a religious house.3 Thus, also, if a pil-
grims' house would be attached to a religious house, the
3 S. C EE. et RR . July 21, 1848 a [bid.; the case is identical witb
(Biuarri, Coll., p. 564 ff.). the one in the text.
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
"-.
144 RELIGIOUS
guests would belong to the latter. We furthermore
believe that also single guests who have come to visit
some of their religious relatives or friends, and live in
the religious house or guests' department (forcsteria)
at least for one full day, may be beneficiaries of our
canon. The last class is that of sick persons who are
cared for by the religious in their own house, no matter
whether they are related to the religious or not. Of
course, this would be all the more so if the religious
should manage a hospital on their own premises. Work-
ingmen employed by the monastery, who would not other-
wise enjoy the privilege, if nursed in their sickness in a
clerical religious house, would also be included.
(3) The sacraments to be administered are the Sacred
Viaticum and Extreme Unction. These appertain to
strictly parochial rights.* Confession and communion,
the administration of which is not exclusively the pastor's
right, needed no mention. This paragraph marks a de-
cided but benevolent change from former restrictions.5
V Can. 514, § 2 vindicates the same rights and duties to
the confessor of nuns with solemn vows and his locum
tenens. Therefore, should any of the foregoing classes
of persons live in a monastery of nuns, the confessor or
his representative may administer the last sacraments to
him. Female servants, alumnae (the socalled cducandc 8
in Italian monasteries), female guests — the male sex
is excluded in virtue of the inclosure, — and sick per-
sons would have to be attended by the confessor, not by
the parish priest in whose parish the convent is situated.7
4 Can. 462, 3. T S. C. EE. et RR., May, 1788
B Piui IX, "Apostolic** Sedis," (Bizzarri, I. c, p. 348); two sisters
1869, n, 14. were collecting for nunc hut main-
sA number of decisions in the tained by the same as their quasi-
R*C*sto S. C. BE. el RR. treat of servants,
these.
, ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
>gle
CANON 514 145
Note, however, that this is a privilege granted only to
nuns with solemn vows.
§ 3 of the same canon says: in every other lay insti-
tute the same right and duty is incumbent on the pastor
or the chaplain appointed by the Ordinary under can.
464. § 2.
Hence, in all lay itistitutes of religious, male or female,8
the religious themselves as well as their servants, stu-
dents, guests, and sick persons in their care, must by
right be attended by the pastor in whose parish the insti-
tute is located. For, unless papal exemption can be
proved, the parish priest is the pastor of such non-cleri-
cal and non-exempt religious. A difficulty might arise
in our country from the fact of linguistic parish divi-
sions. Where English and Italian or German speaking
parishes overlap, who is the pastor? This depends, first
and above all, upon the will of the founder or foundress,
which should, if possible, be respected. Secondly, cus-
tom must be consulted, and, lastly, if these two factors
are not sufficient to settle the question, the Ordinary
should decide, so as to satisfy the needs of the com-
munity as well as the claim of the pastor.
However, as stated above, the Ordinary may, for just
and weighty reasons, exempt any religious community
from the jurisdiction of the pastor and subject it to its
own chaplain. In that case the spiritual rights and
duties mentioned in § 1, %-is., concerning the administra-
tion of the last sacraments, belong to the chaplain and
the pastor may not interfere. Of course, prudence and
justice require that the Ordinary notify the pastor of
such quasi-exemption, in order to avoid unnecessary
trouble.
• The Salesian sisters employed in 1844 (BiMrarri, /. c, p. 497), a»-
education had asked for exemption, swered: not expedient.
but the S. C. HE. et KR., April 19,
oogle
Original fro m
UNIVERSITY OF WISCONSIN
146 RELIGIOUS
Notice the beginning of the text: lay religious. After
mentioning clerical orders and nuns with solemn vows,
the legislator proceeds to lay religious, where there are
no distinctions made as to exemption. This affects the
Christian Brothers as well as the Brothers Hospitallers
of St. John of God; for both are lay institutes. How-
ever the bishop may — and certainly the institutes named
deserve that attention — give them their own chaplain.
-*T§ 4 of canon 514 determines the sepulture of reli-
gious, which is fully treated under can. 1221 and can.
1230, § 5, but may here be briefly described as follows:
The bodies of professed members and novices are to
be carried into the church or chapel of the religious
house, unless novices have chosen another church for
their funeral; the right of accompanying the corpse to
the church of burial belongs to the religious superior.
Should any member die outside the religious house and
so far away from it that the corpse could not easily be
transported to the church of the religious, he shall be
buried from the parish church where he died ; but novices
may choose any church they wish.
Servants, as described above, have the same privileges
in regard to sepulture as novices, and may therefore be
buried from the chapel of the religious or any other
church they may select.
Sisters and novices of sisterhoods who die in the
religious house should be carried by the Sisters to the
threshold of the enclosure, and thence, if they are exempt
from the pastor's jurisdiction, to the church of the reli-
gious house, where the chaplain shall perform the funeral
rites. If they are not exempt from the pastor's juris-
diction, the pastor must conduct the funeral services
from the entrance of the enclosure to the church and
chapel, where he shall hold the exequies.
Go >gle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
■ ■-,
CANONS 515-516 147
honorary titles denied to religious
Can. 515
Prohibentur tituli dignitaturn vel officiorum mere
honorifici ; soli, si id permittant constitutiones, toleran-
tur tituli officiorum maiorum, quibus religiosi in pro-
pria religione reapse functi sint.
Ambition is the root of many evils in the Church
and a vice more contemptible in a religious than in any
other person. Therefore our canon quite naturally for-
bids religious to accept any honorary titles of dignities
and offices. However, if the Constitutions permit, they
may retain the title of higher offices which they once held
in their own institute. This precludes the assumption
of the title of Monsignorc by any religious. The privi-
lege of pontificating does not entitle one to bear the
name of titular abbot if the dignity of abbot was never
really held by the claimant. As to the Franciscans
Pius X decided that only ex-ministers and ex-procurators
general are allowed to keep that title in the whole order,
and the ex-provincials in their province, together with
precedence and active and passive voice at the general
or provincial chapter, respectively, but not at the meet-
ings of the " definitores." 9
counsellors and procurators
Can. 516
§ 1. Supremus religionis aut monasticae Congrega-
tionis Moderator, Superior provincialis et localis saltern
formatae domus habeant suos consiliarios, quorum
9" Quo magis," Oct, 23, rpti {A. crook to share in the chapters and
Ap. S., III. 560 f., o. VIII); such elections: & C. EE. et RR„ Feb. 8,
titles were sought for by hook and 1718 (Bi7zarri, /. c, p. 305 f.>.
>Ie
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
-
■
pi
Q
(M
■--.
148 REUGIOUS
consensum aut consilium exquirant ad normam consti-
tionum et sacrorum canonum.
§2. Sint ctiam pro administratione bonorum tem-
poraliuxn occonomi : gencralis qui religionis universae
bona administrct, provincialis qui provinciac, localis
qui singularum domotum ; qui omnes suo fungantur
munere sub directione Supcrioris.
§ 3. Occonomi gencralis et provincialis munus gererc
Superior ipse non potest ; munus vero occonomi localis,
quamvis melius a munere Supcrioris distinguatur, com-
poni tamen cum eo potest, si neccssitas id exigat.
§ 4. Si de modo oeconomos eligendi constitutiones
sileant, a Superiore maiore cum consensu sui Consilii
eligantur.
§ i of can. 516 prescribes that the superior general of
religious, and the president of a monastic congregation,
the provincial and local superior of a canonically estab-
lished house (domus formata), should have counsellors,
whose consent or advice they should ask according to
their constitutions and the prescriptions of the sacred
canons. This was the wise counsel given by St. Bene-
dict to abbots, and later entered as a law into the De-
cretals.10
A decree of 1909 made it imperative for all superiors
to have counsellors, especially in financial matters.11
This decree has partly been embodied in our Code, which,
however, is not very explicit about the number or mode
of electing the counsellors, although Cardinal Gasparri
refers to that decree, which determines the number of
counsellors as well as the manner of electing them. The
counsellors should be at least four in number in com-
10 Reg. S. Ben., c. 3; lib. Ill, tit.
11 Cfr. A. Ap. 5., I, 696 f.
xo, de fail quae fiunl a praelato sine
consensu capittlli.
i
-.—
J
gle
Original from
UNIVERSITY OF WISCONSIN
CANON 516 149
o
munities with twelve or more chapter members, and two
in such as have a smaller number of capitulars. All of
them should be elected by the chapter for three years.
They give their vote by secret ballot, whenever a de-
cisive (not a merely consultive) vote is required. Thus,
according to the same decree, the local superior would
be bound by their vote in making debts or assuming
obligations to the amount of less than $200, the provin-
cial in cases amounting to less than $1000. However,
since the Code directly mentions the constitutions as a
norm for establishing the necessity of obtaining the con-
sent of the counsellors, these must also be looked to for
guidance regarding the affairs and amounts for which
such consent is required. But one thing is certain: coun-
sellors there must be, and they should be chosen by the
chapter, not by the superior alone; otherwise it would
be illusory to require the vote of counsellors, who are
supposed to represent the chapter, or convent, or prov-
ince. For if the superior were allowed to choose three,
and the chapter one, the superior would be able always
to have his own way. And this is neither the intention
of the law-giver nor the purpose of counsellors.
The most important affairs which demand the consent
(not merely advice) of the counsellors, according to our
Code, are :
(a) The appointment of an administrator or procura-
tor (oeconomus) (Can. 516, § 4) ;
(b) The alienation of property (Can. 534, § 1 ) ;
(c) Admission to the novitiate or simple profession
(Can. 575, § 2) ;
(d) The dismissal of a professed member (Can. 547,
§ 1 ; Can. 650, § 1).
§ 2 of can. 516 requires an oeconomus or administrator
of temporal affairs (procurator) — one for the whole
Q
oogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
150 RELIGIOUS
a
institute, one for the province, and one for each single
house; all to perform their duties under the direction
of the respective superiors.12
§ 3 says that the superior himself may not be general
or provincial administrator at the same time, but that
the offices of local superior and local administrator are
compatible, if it is necessary to combine them.
§ 4 says that if the constitutions do not determine the
mode of appointing the administrator, the latter must be
chosen by the higher superior with the consent of the
counsellors. The Council of Trent had ruled that the
administration of the property of religious should be in
the hands of officials who could be removed at will by
the superior, However, if the administrator is chosen
with the consent of the counsellors, it is, to say the least,
becoming that they should also be consulted about that
official's removal. Only a few Benedictine congregations
appoint an administrator for the whole congregation, but
a local procurator is chosen from among the community,
according to the Holy Rule (can. 31), generally by the
abbot, without whose command he may do nothing.
Hence, though the constitutions be silent about the mode
of appointing the procurator, the rule of the O. S. B.
vindicates that right to the abbot; but the Code requires
the cooperation, i. e., consent of the counsellors, and this
ruling must be followed.
Q
the procurator general
Can. 517
§ 1. Quaevis virorum religio iuris pontificii procu-
ratorem generalem habeat, qui, secundum constitutio-
1J Note that the procurator is not a superior, and hence subject to
minor superiors.
>Ie
£ * ^ .. ,L, Original from
UNIVERSITY OF WISCONSIN
CANON 517 151
ncs designates, ncgotia propriae religionis apud Sanc-
tam Sedem pertractet.
§ 3. Antequam praescriptum in constitutionibus
tempus exspiret, ne amoveatur, inconsulta Sede Apo-
stolica.
Every papal congregation of men must have a pro-
curator general, who is to be designated according to
the constitutions, and must transact all business between
the congregation and the Holy See.
The procurator general may not be removed from his
office without the consent of the Holy See before his term
determined in the constitutions has expired.
The S. Congregation of Bishops and Regulars by a
decree approved by Pius VII, Aug. 22, 1814, ordained
that all religious institutes which were not at all or in-
adequately represented in the Papal States, should have
a procurator general residing in Rome.18 Most of the
older and more centralized orders had such an official
for centuries. As to the Benedictines, single congrega-
tions, e. g., the Cassinese, the English, and that of
Subiaco, maintained relations with Rome by means of a
procurator general, and the right of each congregation
to have its own procurator in Rome was not taken away
when the abbot primate was created.1*
1»" Ubi primum," Biizarri, /. c, Ulco XIII. " Summum stmper."
p. 4» f- J"1* Ia» l893. I.
Q
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CHAPTER II
confessors and chaplains
confessors of clerical institutes
Can. 518
§ 1. In singulis religionis clerical is domibus depu-
tentur plures pro sodalium numero confessarii legitime
approbati, cum potestate, si agatur de religione ex-
cmpta, absolvendi etiam a casibus in religione reser-
vatis.
§ 2. Superiores religiosi, potestatem audiendi con-
fessiones habentes, possunt, servatis de iure servandis,
confessiones audire subditorum, qui ab illis sponte sua
ac motu proprio id petant, at sine gravi causa id per
modum habitus ne agant.
§ 3. Caveant Superiores ne quern subditum aut ipsi
per se aut per alium vi, metu, importunis suasionibus
aliave ratione inducant ut peccata apud se confiteatur.
P
These three paragraphs treat of the appointment of
confessors and of the faculties of superiors in houses of
religious institutes of clerics.
§ 1 provides that in each house a number of confessors
proportionate to the number of inmates should be ap-
pointed, duly approved, and endowed with the faculty
of absolving from cases reserved in the religious order
concerning exempt religious. Here appointment means
■I
nothing else but the designating of one as confessor.
This is generally done after an examination, or at least a
15a
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
f CANON 518 153
st ■
verification of the fitness of the person to be appointed.
Approval signifies the grant of jurisdiction or faculty to
hear confessions validly and licitly. This is an act of
public jurisdiction {in foro externo), for although the
faculty of hearing confessions belongs to the court of
conscience, yet the granting of that faculty is a result of
jurisdiction proper. Therefore approval can be given
only by one who enjoys jurisdiction. Concerning cleri-
cal exempt religions orders, the superiors of the same
are empowered to grant delegated jurisdiction or ap-
proval, not only to priests of their own order, but also
to priests of the secular clergy or of another order. The
superior of an exempt lay congregation may present a
confessor to the Ordinary in whose diocese the house is
located in order to obtain from him the necessary juris-
diction.1 Hence in the former case the religious supe-
rior of exempt clerical religious grants, in the name of
the Sovereign Pontiff, yet in virtue of his ordinary
power, the delegated jurisdiction to those whom he deems
fit, whereas in exempt lay congregations the jurisdiction
is given by the Ordinary.
The number of confessors to be appointed should be
in proportion to the number of religious whose confes-
sions arc to be heard. Clement VJII speaks of two, or
three, or more, according to the number of religious.2
The opinion of some authors, that to each confessor
should be assigned a certain number of religious, so that
they would be bound to confess to that one exclusively,
is intolerable.8
The members who may confess to the confessors ap-
proved by the superior of clerical exempt religious are
1 Can. 875- ■ Justly rejected by Piatui M.,
S " Sanetissimui," May 26, 1593, I. 402 (ed. a).
jle
I , Original from
UNIVERSITY OF WISCONSIN
154 RELIGIOUS
those mentioned under can. 514, § I, vis,: the religious,
the novices, the servants, the students, the guests, and
sick persons, provided the conditions set forth in said
can. 514, § 1 are verified.4
The superiors who may grant delegated jurisdiction,
or the faculty of hearing the confession of these mem-
bers, are the higher superiors who enjoy jurisdiction
in foro extcrno; therefore, the superior general of an
exempt order, the provincial, and, in the case of monastic
bodies, the abbot of each independent monastery.5 Con-
cerning conventual priors and guardians some authors
doubted their jurisdiction or power of granting facul-
ties, but the majority were on the affirmative side, and
justly so; for the Constitution of Pius V, " Romani
Pontificis" expressly mentions the conventual priors as
endowed with the same faculties as the Ordinaries with
regard to absolution and dispensation.
Concerning female religious and novices of orders as
well as of congregations, no matter whether they be
otherwise subject to a regular prelate, the faculty of
hearing their confessions is given by the Ordinary alone
in whose diocese their house is located/
Finally a word about reserved cases from which the
confessors duly approved either by the religious superior
or by the Ordinary may absolve. Clement VIII had per-
mitted religious superiors, with the consent of their
counsellors, to reserve certain cases, eleven in number.1
Our Code 8 grants the same power to the superiors gen-
4 See can. 875. faculties, because this power is from
0 The Abbot Primate and Abbots ihc Tupe and may therefore be sub-
Presidents are not empowered to delegated.
give faculties either for the order 6 Can. 876.
or for their respective congrega- T " Sanctissimut," May 26, 1593,
tion; neither may cloistral priors, 9 3*
except by subdelegation, grant such 8 Can. 896.
^le
Original fro m
UNIVERSITY OF WISCONSIN
CANON 518 155
cral and abbots with their counsellors* consent, with due
regard to certain restrictions, as seen in can. 519. How-
ever, after having granted that power, the Code restricts
the number of resencd cases to four. Therefore it
seems evident that the legislator wishes to limit the eleven
cases to not more than four, and these of the " most
grievous and atrocious crimes of public character.""
Consequently we hold that the religious superiors are
now-a-days no longer entitled to reserve more and other
cases than determined by the Code. An obligation of
reserving cases lias never been enjoined, neither is it
stated in the Code, which, moreover, plainly says that
any duly approved confessor can absolve from them with-
out being bound to refer the case to the superior.
§ 2 states that religious superiors who have power to
hear confessions, may, if asked by them spontaneously
and of their own accord, hear the confessions of their
subjects, but should do so only for grave reasons and
not habitually ; besides, they must observe the laws and
regulations prescribed (scrvatls dc iure scrvandis). But
they should beware lest they, either themselves or by
means of others, endeavor to induce any of their sub-
jects to confess to them. This law, already insisted upon
by Clement VIII,10 the Code emphasizes anew.
What is meant by " servatis de iitrc scrvandis "f
Nothing else but the observance of the rules laid down
in the Code concerning the administration of penance,11
because the superiors, too, are bound to the seal of con-
fession and may make no use of what they know from
confession for the government of their subjects in what-
ever shape or form.
9 Can 897. 11 Can. 885 B.; can. 908 ff.
10 Clem. VIII. " Sane Hssimut/'
I a; S. 0.. July 5, 1899.
jte
Original fro m
UNIVERSITY OF WISCONSIN
156 RELIGIOUS
Q
LIBERTY OF CONSCIENCE
LAW. 519
Firmis constitutionibus quae confessionem statis
temporibus praecipiunt vel suadent apud determinates
confessarios peragendam, si religiosus, etiam exemptus,
ad suae conscientiae quietem, confessarium adeat ab
Ordinario loci approbation, etsi inter designatos non
recensitum, confessio revocato quolibet contrario
privilegio, valida et licita est ; et confessarius potest re-
ligiosum absolvere etiam a peccatis et censuris in
religione reservatis.
■D
This canon embodies a decree, first issued for Rome,
and then extended to all religious,12 which aroused the
religious zeal or anger of some superiors who endeavored
to move Pius X to withdraw it.1* And yet it stands, and
now appears in the Code. It says : " Without detri-
ment to the constitutions which prescribe or advise con-
fession to be made at stated times to appointed con-
fessors, a religious, even an exempt one, may, to quiet
his conscience, go to confession to a confessor approved
by the Ordinary of the diocese, though this confessor be
not one of those appointed for religious, and the con-
fession thus made is valid and licit, every privilege to
the contrary being hereby revoked; besides, said confes-
sor (though not of the appointed ones) can absolve such
a religious also from all sins and censures reserved in
his order." This decree did away with restrictions —
of very doubtful efficacy — concerning the obligation of
confessing to a traveling companion or that of confess-
IX Aug. 5, I'M.* ; May 3. >9iAi and could give the name of a cer-
S. C EE. et UK . July 4, 186a tain superior who approached the
(Bixiarri, I. r., p. 155). Pope.
II We were in Rome at that time
jle
£ " ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 519 157
ing to appointed confessors only. On the other hand, it
leaves the regular discipline about usual confessors and
confessions untouched. That part of the constitutions
which regulates this point is still in force, unless they
run counter to the present canon, in which case they are
void. The number of times which the religious may
choose to go to another than the appointed confessor is
not determined. His conduct is conditioned simply and
solely by the state of his conscience, — a purely subjective
matter with which the religious superior has no right to
interfere. Hence a religious may choose another con-
fessor whenever and as often as he thinks it wholesome
for his conscience. Religious are now treated like other
Catholics and this so-called privilege is done away with —
to the relief of consciences and to the avoidance of tor-
ture and other worse consequences.
But what about the cases reserved in the order or con-
gregation to which the disturbed religious belongs? The
Code does not prohibit such reservation,14 as stated
above ; but the confessor chosen may absolve from re-
served cases without any scruple or obligation to report
to the religious superior, which report is always con-
nected with the danger of breaking the seal of confes-
sion.
CONFESSORS OF SISTERS
• i
a
The following canons treat of the confessor-in-ordi-
nary of Sisters, of extraordinary confessors, of provi-
sions in particular cases, of the qualities, appointment,
duration of office of confessors and their removal from
•
office. It may be safely said that these canons embody
former Apostolic constitutions, and especially that most
excellent one of Benedict XIV, " Pastoralis curae" of
1* Supposing, however, that their number does not exceed four.
i|e
, .J » Original fro m
UNIVERSITY OF WISCONSIN
158 RELIGIOUS
Aug. 5, 1748, and it is to be hoped that these wise laws
will finally be carried into effect by every prelate every-
where.
the ordinary confessor
Can. 520
§ 1. Singulis religiosarum domibus unus dumtaxat
detur confessarius ordinarius, qui sacramentales con-
fessiones universae comrnunitatis excipiat, nisi propter
magnum ipsarurn numerum vel aliam iustam causam
sit opus altero vel pluribus.
§2. Si qua religiosa, ad animi sui quietern, et ad
maiorern in via Dei progressum, aliquem specialem
confessarium vel moderatorem spiritualem postulet,
eum facile Ordinarius concedat ; qui tamen invigilet ne
ex hac concessione abusus irrepant; quod si irrepserint,
eos caute et prudenter eliminet, salva conscientiae
libertate.
§ 1 of this canon says that only one confessor-in-ordi-
nary should be appointed for each house of nuns (and
Sisters). He shall hear the confessions of the whole
community, unless because of too great a number or for
another just cause it is necessary to employ several con-
fessors. The reason for appointing but one confessor
lies in the unity and uniformity of regular discipline and
spiritual guidance for religious women. It is exactly
the same reason for which only one pastor is appointed
for each parish. However, the number of persons to be
heard, or other reasons may make it advisable to appoint
one or more additional confessors, which the canon
-
promptly grants. Thus, e. g., the S. Congregation of the
Council permitted the canons regular of Rimini to assign
a vice-confessor in cases of absence or sickness of the
ogle
Y ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 521 159
ordinary confessor of nuns.16 Note here and through-
out the following canons, that no distinction is made
between nuns and Sisters; for the approbation dej)ends in
all cases entirely upon the Ordinary.
§2. If any Sister, in order to quiet her conscience or
to progress more rapidly on the path of holiness, should
demand a special confessor or spiritual director, the
Ordinary should readily grant the request, but at the
same time see to it that no abuses arise, and if such
should spring up, he shall root them out cautiously and
prudently, duly safeguarding liberty of conscience. The
first clause of this paragraph is almost verbally taken
from the above-quoted Constitution of Benedict XIV,
who justly reproaches some religious superiors for acting
too severely towards Sisters. The Pontiff at the same
time lays down the prudent rule that the qualities of the
Sister as well as those of the confessor demanded should
be carefully examined, and if no reason for suspecting
either is to be discovered, the request may safely be
granted. Abuses would be a disturbance of the regular
discipline, extravagant expenses, a bad example, etc. But
a little inconvenience to the superiors or the portress or
the cook could not be styled an abuse.
Can. 521
§ 1. Unicuique religiosarum communitati detur con-
fessarius extraordinarius qui quater saltern in anno ad
domum religiosam accedat et cui omnes religiosae se
sistere debent, saltern bencdictionem rcccpturae.
§ 2. Ordinarii locorum, in quibus religiosarum com-
munitates exsistunt, aliquot sacerdotes pro singulis
domibus designent, ad quos pro sacramento poeniten-
15 Richter, Trxd., scss. 35, c. in, of course, needed also the appro-
de rcg , p. 413 I.; this confessor, bation of the buhop.
jle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
160 RELIGIOUS
tiac in casibus particularibua rccurrcrc cac facile pos-
sintv quia necessarium sit ipsum Ordinarium totics
q uolies adirc.
§ 3. Si qua religiosa aliquem ex iis confessariis cx-
petat, nulli Antistitac liceat nee per sc nee per alios,
neque directe ncque indirecte, petitionis rationem in-
quirere, petitioni verbis aut factis refragari, aut quavis
ratione ostenderc se id aegre ferre.
This canon grants an extraordinary confessor to every
religious community at least four times a year.18 To him
all the Sisters must present themselves, at least to receive
his blessing if they do not wish to confess. This con-
fessor, of course, like the ordinary one, must be ap-
proved by the Ordinary of the diocese, although he may
have been presented by the regular superior. The Sisters
are not obliged to confess to the extraordinary confessor
if they do not wish ; but they must present themselves in
order to receive his blessing. This is also done for a spe-
cial purpose, vis,, that they may not accuse either the
Ordinary or the superior of neglecting their duty with
regard to offering an opportunity for quieting their con-
science.
But the lawgiver goes still further in § 2, calling upon
the Ordinary in whose diocese communities of Sisters
exist, to designate for each house several priests on whom
the Sisters may call for confession in particular cases.
The decree of Feb. 3, 1913, from which our text is
taken, says that these confessors should be designated
for each house." Now it may be asked whether con-
fessors appointed, for instance, for the Sacred Heart
Convent, may validly hear confessions in the Precious
P
'■-.
lflTrirf., seas. 35, c. ro, saya thn* IT A. Ap. S., V, p. 6j, 4.
liraca a year.
>Ie
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 521 161
Blood Convent. That this question is not quite su-
perfluous appears from a query put to the S. C. Concilii,
thus : Whether the regular confessors who had been ap-
pointed and approved for hearing confessions of nuns
of one monastery or for one time may be considered ap-
proved for hearing confessions of all monasteries and
forever? The answer18 was, "Negative" However,
we must pay attention to the term designent used in our
canon. Hence the solution must be : If the Ordinary has
granted general faculties" for hearing confessions of
nuns or Sisters, and has not made a special condition or
inserted a restrictive clause, the confessors appointed for
the Sacred Heart Convent may validly hear confessions
in the Precious Blood Convent, and vice versa. As to
ticitness, the answer depends partly on the will of the
Ordinary, and partly on custom.
If a religious, says § 3, demands one of the aforesaid
confessors, the superioress is not permitted, either di-
rectly or indirectly, either personally or through others, to
inquire for the reason of the demand, or to refuse the pe-
tition either in word or deed, or to show herself displeased
in any way. Neither die counsellors, nor the mistress of
novices, nor any other official or third person is entitled
to interfere in matters of conscience, either directly by de-
manding reasons for the petition, or indirectly by asking
what the Sister may have done, where she was, who
has spoken to her, who was in the parlor, etc., even by
way of a joke. Nor may the superiors deny the peti-
tion by an evasive or downright refusal, or by sending
her on an errand, or giving her work that would prevent
the fulfilment of her wish. Neither should they shrug
18 S. C. C, June y, 1755 (Rich* terms like these: etiam ad moni-
ter, TriJ., p. 413). alium, or better: etiam ad omnium
IB This should be expressed in religicsantm conftssiones audienJas.
oogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
1 62 RELIGIOUS
their shoulders or use uncharitable words, or " make a
face " at the petitioner, or let her feel it afterwards, or
ridicule or criticise her.
Can. 522
Si, non obstante praescripto can. 520, 521, aliqua re-
ligiosa, ad suae conscientiae tranquillitatem, confes-
sarium adeat ab Ordinario loci pro mulieribus appro-
batum, confessio in qualibet ecclesia vel oratorio etiam
semi-publico peracta, valida et licita est, revocato
quolibet contrario privilegio; neque Antistita id pro-
hiberc potest aut de ea re inquirere, ne indirecte
quidem ; et religiosae nihil Antistitae referre tenentur.
If notwithstanding the concessions made in can. 520
and 521, a Sister, to quiet her conscience, goes to a
confessor approved by the Ordinary for hearing con-
fessions of women, the confession thus made in any
church or public or semi-public oratory is valid and licit,
every privilege to the contrary being hereby revoked;
neither is the superioress allowed to hinder such a one
or make inquiries about the matter, even indirectly, nor
are the Sisters obliged to report to the superioress.
The Roman congregations 2t> had made allowance for
secularized religious and for Sisters who because of their
health or for other motives are compelled to confess out-
side the religious house. Such Sisters could go to con-
fession to any priest who was approved for hearing con-
fessions of both sexes (pro utroque seru), although he
had not been specially approved for hearing Sisters' con-
fessions (pro monialibits). This decision was received
into the decree of Feb. 3, 191 3, which adopted the phrase
"pro utroque sexu." Our Code has another reading,
»0 S. C. EE. ct RR., Aug. 22, 1852 (Blrzarri, /. fc. p. 129).
Q
JbyC >Ie
f ■ , -.1 » Original fro rn
UNIVERSITY OF WISCONSIN
CANON 523 163
a
vis., "pro mulieribits approbatum." In some countries,
Belgium, France, and our own State of Louisiana, if we
are not mistaken, the Ordinaries give special faculties
for hearing women's confessions.21 However, in most
of our provinces there is no distinction made as to secular
or lay persons concerning sex, but the formula generally
■
reads: "ad audiendas tidelium confessiones." Hence
wherever the clause ''pro mulieribits approbatum " is not
in use, any confessor approved for hearing the confes-
sions of the faithful of both sexes has the faculty of
hearing the confessions of Sisters who come to a church
or public or semi-public oratory.
Attention may be drawn to the term religiosae, nuns
or Sisters. It stands to reason that a strictly cloistered
nun is not allowed to leave the enclosure to go to confes-
sion. This is clearly expressed in the decree of 1913,
which reads: "If it should happen that any nun or
Sister would, for any reason, be outside her own reli-
gious house." Therefore a strictly cloistered nun could
leave the convent only for such reasons as permit a de-
parture from the conventual " clausura" The admoni-
tion to the superioress is plain enough in the light of
what has been said in the preceding canon.
p
Can. 523
Religiosae omnes, cum graviter aegrotant, licet
mortis periculum absit, quemlibet sacerdotem ad mu-
iierum confessiones excipiendas approbatum, etsi non
destinatum religiosis, arcessere possunt eique, per-
durante gravi infirmitate, quoties voluerint, confiteri,
nee Antistita potest eas sive dirccte sive indirecte pro-
hibere.
Si Cfr. Innoc. XIII, " Apostolici Palraicri, Opus Theol. Morale, 1893,
minuterii," May 33, 17*3; Ballerini- Vol. V, p. 286 f.
".
ioogle
Original fro ni
UNIVERSITY OF WISCONSIN
164 RELIGIOUS
Any Sister who is seriously ill, though not in danger of
death, may call any priest approved for hearing the con-
fessions of women, though not especially appointed for
Sisters, and confess to him as often as she desires during
the duration of her illness, and the superioress may not
forbid it, either directly or indirectly. This is a con-
cession for all Sisters, whether cloistered or not, and is
more extensive even than that granted by Benedict XIV,
because he added that the sick Sister must be in danger
of death. Concerning the distinction of approbation for
women and for Sisters nothing else need be added except
that the Ordinary is bound to explain or emphasize that
distinction.
N
Q
qualities of confessors
Can. 524
§ 1. In munus confessarii religiosarum et ordinarii
et extraordinarii deputentur sacerdotes, sive c clcro
saeculari, sive rcligiosi de Superiorum licentia, morum
integritate ac prudentia praestantes ; shit insuper annos
nati quadraginta, nisi iusta causa, iudicio Ordinarii,
aliud exigat, nullam potestatem in easdem religiosas in
foro externo habentes.
§ 2. Confessarius ordinarius non potest renuntiari
extraordinarius nee, praeter casus in can. 526 recen-
sitos, rursus deputari ordinarius in eadem comrnuni-
tate, nisi post annum ab expleto munere; extraordi-
narius vero immediate ut ordinarius renuntiari potest.
§ 3. Confessarii religiosarum turn ordinarii turn ex-
traordinarii interno vel externo communitatis regimini
nullo modo sese immisceant.
-
<
As confessors-in-ordinary and confessors extraordi-
nary the bishop should appoint priests either of the secu-
jle
£ * ^ v J„ Original fro m
UNIVERSITY OF WISCONSIN
CANON 524 _ 165
a
lar or regular clergy (the latter with the permission of
their superiors) who are known for probity of life and
prudence. They should be forty years of age unless in
the Ordinary's judgment a just reason requires a de-
parture from this rule. These confessors have no juris-
diction in foro externo over the religious. Benedict XIV
required for both ordinary and extraordinary confes-
sors" certain qualities which are now modified some-
what. Thus the Code makes no distinction between
priests of the secular and the regular clergy. Mature
age is required, unless circumstances such as a want of
priests justify a suspension of that rule, in which case
the lack of age must be supplied by good moral standing
and prudence, which even age does not always guarantee.
These confessors are warned to exercise no power or
jurisdiction in foro externo , for instance, by censuring
the religious or settling affairs or reserving cases which
require an ecclesiastical trial.28 Neither may they dis-
pense in cases in which the pastors are empowered to
dispense,24 for this power, though given by law and be-
longing to the extra-judiciary court, requires jurisdiction
in foro externo. This warning is or was opportune in
convents of nuns subject to the regulars, who may have
thought that their prelate, whom they represented, was
endowed with such jurisdiction proper.
The ordinary confessor of a Sisters' community may
not be appointed extraordinary confessor except a year
after his term as ordinary confessor has expired; nor
may the ordinary confessor be re-appointed for the same
community until a year has elapsed (exceptions noted in
22 " Demandatam," Dec. 24, 1743, from servile work, fast and absti-
I 24; "' Pastoralii curat," " Quam- nence; of course Ilic confessors may
r iuxto," April 30. 1740. f 14. declare in sin
23 Can. S93, I 1. penitents that I
24 Can. 1345, I 1: dispensation does not bind.
Go >gle
j , Original fro rn
UNIVERSITY OF WISCONSIN
166 RELIGIOUS
can. 526) ; but the extraordinary confessor may be imme-
diately installed as confessor-in-ordinary.
The confessors of Sisters, ordinary as well as extraor-
dinary, shall in no way meddle in the internal or external
government of the community. This canon should deter
confessors from playing the " factotum " of the Sisters.
The internal regimen means religious discipline, author-
ity of the superiors, election of superiors and officials,
order of the day and employment of Sisters in the vari-
ous branches, schools, hospitals, etc. The external gov-
ernment comprises the relation of the Sisters to the Or-
dinary, the visitator, and the parish priest, their congre-
gational business, administration of property, etc. All
these things do not concern the confessor, who, however,
if asked, is allowed to give advice.
ji
appointment of confessors
Can. 525
Si religiosarum domus Sedi Apostolicae immediate
subiecta sit vel Ordinario loci, hie digit sacerdotes a
coniessionibus turn ordinarios turn extraordinarios ; si
Superiori regular i, hie confessarios Ordinario praesen-
tat, cuius est eosdem pro audienJis illarum monialium
confessionibus approbare et Superioris negligentiam,
si opus sit, supplere.
• i
a
The Ordinary of the diocese appoints confessors -in-
ordinary as well as extraordinary for such Sisters' houses
as are either immediately subject to the Apostolic See or
to the Ordinary himself. If the house is subject to a
regular prelate, the latter presents the confessors to the
Ordinary of the diocese, who grants the usual approbation
(faculties) for hearing the confessions of the nuns, and
also, if necessary, supplies the superior's negligence.
oogle
, .,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 526 167
It is not necessary to explain this canon, because of
nuns subject to a regular* prelate there can scarcely be
question among us. However, if there should be such
houses, the negligence here mentioned must be that of
granting an extraordinary confessor or of refusing to
comply with can. 520, §2, and can. 521, 522, 523.
Benedict XIV mentions a special case, which, how-
ever, falls under the rubric, V quieting of conscience,"
viz., if a Sister should have a strong and almost invinci-
ble aversion against a regularly appointed confessor. In
such cases, he says, the Ordinary may supply a con-
fessor, and even allow the nun to have recourse to the
S. Poenitentiaria."
D
DURATION OF THE CONFESSOR S OFFICE
•*
Can. 526
E
Religiosarum confessarius ordinarius suum munus
, ne exerceat ultra triennium ; Ordinarius tamen eum ad
secundum, imo etiam ad tertium triennium confirmare
potest, si vel ob sacerdotum ad hoc officium idoneorum
penuriam alitcr providere nequeat, vel maior religiosa-
rum pars, earum quoque quae in aliis negotiis ius r.on
habent ferendi suffragium, in eiusdem confessarii con-
firmationem, per secreta surYragia, convenerit; dissen-
tientibus tamen, si velint, aliter providendum est.
The rule is that no confessor of Sisters (nuns) shall
hold this office for more than three years. However,
the Ordinary may leave him in office for three and even
six years longer, if (a) no other priest fit for the place is
available, or (b) if the majority of the religious votes,
by secret ballot, for the confirmation in office of the con-
fessor; in which scrutiny also such religious may cast a
-
SB "Piufora/if curat," (Dull., II, p. 401 *■>■
jle
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
N
■
168 RELIGIOUS
vote who would otherwise be excluded from voting.
However, for those who vote against ratification provi-
sion should be made, if they demand it.
The limit, therefore, is nine years, beyond which term
the Ordinary has no right to stretch the period of office.
The regular term is three years, and only in two in-
stances may this be protracted.
Concerning fitness, can.. 524, § 1 must be consulted; it
implies maturity of age, probity of life, and prudence.
But what is the Ordinary to do if a pastor is con-
fessor of a religious house located in the country? If
he does not wish to change the pastor after nine years,
he has to appoint the neighboring priest as confessor, at
least for one year, after which, according to can. 524,
§ 2, the pastor may again become confessor for another
nine years.
What is said above concerning the majority of votes
is to be understood of the absolute majority. Those who
are entitled to vote are all the professed Sisters, though
perhaps only in temporary vows, who would otherwise
be prevented from voting, for instance, in business mat-
ters or at the election of a superior.26
How to provide for those who are opposed to the rein-
statement of the confessor is, of course, a rather delicate
matter. They must manifest their desire of having an-
other confessor to the Ordinary, who shall send another
priest, for a time at least, until the feeling of animosity
has subsided.
removal of confessors
Can. 527
-
Loci Ordinarius, ad normam can. 88ot potest,
gravem ob causam, religiosarum confessarium tarn
M Cfr. Bizzarri, Collectanea, p. 116; Normae, n. 217 IT.
C» I , Original from
lOOglt UNIVERSITY QFWI5C0NSIN
■
CANON 527 169
•
ordinarium quam extraordinarium amovere, etiamsi
monasterium regularibus subdatur et ipse saccrdos a
confessionibus sit rcgularis, ncc tenetur causam amo-
tionis cuiquam significare, cxccpta Apostolica Sede,
si ab ea requiratur ; dc amotione autem debet Superi-
orem regularem monere, si moniales regularibus sub-
dantur.
This canon is modelled upon can. 454, § 5, and must
be combined with can. 880. The Ordinary of the dio-
cese may, for weighty reason, remove a Sisters' confes-
sor, ordinary or extraordinary, even though the convent
be subject to regulars and the confessor be one of the
regulars. The bishop is not bound to state the reason
for removal to any one except the Apostolic See, upon
demand; but he must inform the regular superior to
whom the nuns are subject.
Though the canon, as it sounds, is new law, yet the
bishop could formerly remove a confessor of nuns sub-
ject to regulars if the latter's superior had been notified
and failed to comply with the bishop's demand.27 Even
now the bishop is not entitled to remove a confessor ex-
cept for grave reasons which touch the office, and, be-
sides, he may not remove all confessors of the same reli-
gious house at one time because such a removal would be
not only senseless, but injurious to the spiritual welfare
of the nuns Z8 and to the moral character of the priests
involved.
IT Gregory XV, " Irtscrulabilt ." ai, 1670, I 6; S. C. EE. et RR.,
Feb. 5, 1622, I s, and the decuions Nov. 20, 1615 (Birzarri, /. c, p. 21:
of S. C. C, ad calcem, ibid. " ex nova causa eaque ad contes-
ts Clement X, " Suptrno," June *ion*s ipm ftrUncntt ">.
"-.
oogle
/"* ^ -. ,L» Original from
UNIVERSITY OF WISCONSIN
170 RELIGIOUS
j
confessors of lay institutes of men
Can. 528
Etiam in laicalibus virorum religionibus dcputctur,
ad norma tn can. 874, § 1, 875, § 2, confessarius ordi-
narius et extraordinarius; et si religiosus aliquem
specialem confessarium expostulet, ilium Superior con-
cedat, nullo modo petitionis rationem inquirens ncque
id aegre se ferre demonstrans.
Also in lay institutes of men an ordinary and an ex-
traordinary confessor must be appointed, according to
can. 874, § i, where the Ordinary is enjoined to give a
confessor either from the secular or religious clergy, and
the religious must have the permission of his superior
for being confessor; and according to can. 875, § 2, where
it is said that in exempt lay institutes the superior may
propose the confessor to be approved by the Ordinary.
If any member wishes to have a special confessor, the
superior must grant the petition and is not allowed to
ask for a reason or to show displeasure.
CHAPLAINS
—
s
Can. 529
Si agatur de religionibus laicalibus non exemptis,
Ordinarii loci est sacerdotem a sacris designare et a
concionibus probare; si de exemptis, Superior regu-
laris eosdem sacerdotes designat eiusque negligentiam
supplet Ordinarius.
In non-exempt lay institutes the Ordinary of the dio-
cese appoints a priest for saying Mass and preaching ; in
exempt lay institutes the regular superior designates
these priests, or, in case of the superior's negligence, the
Ordinary of the diocese.
>Ie
£ - ^ , ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 530 171
The functions of a chaplain, therefore, consist in hold-
ing divine service and preaching; -u beyond that he is
only allowed to perform sacred functions for which the
Ordinary grants special powers, or in as far as the reli-
gious are exempt from parish organization.
Chaplains, too, should abstain from meddling in the
internal and external regime of the communities to which
they are assigned.
manifestation of conscience
Can. 530
§ 1. Omnes religiosi Superior es districte vetantur
personas sibi subditas quoquo modo inducere ad con-
scientiac manifestationem sibi peragendam.
§ 2. Non tamen prohibentur subditi quominus libere
ac ultro aperire animum suum Superior ibus valeant;
imo expedit ut ipsi filiali cum fiducia Superiores
adeant, eis, si sint sacerdotes, dubia quoque et anxie-
tates suae conscientiae exponentes.
All religious superiors are strictly forbidden to induce
their subjects by any means whatever to manifest their
conscience to them. But the subjects may of their own
accord open their mind to their superiors : nay it is even
expedient for religious to approach their superiors with
confidence, and if they are priests, to reveal to them
doubts and anxieties of conscience.
Note that all superiors, not only those of nuns,30 are
affected by this general prohibition. Voluntary mani-
festation of conscience is not forbidden, but rather rec-
ommended.
id Sec can. 1338, I 3. 1890, was chiefly intended for aupe-
50 " Quemadmodttm," Dec 17, riors of Sisters.
ogle
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
-'
CHAPTER III
TEMPORAL POSSESSIONS AND THEIR ADMINISTRATION
s
Can. 531
Non modo religio, scd etiam provincia et domus sunt
capaces acquirendi et possidendi bona temporalia cum
reditibus stabilibus seu fundatis, nisi earum capacitas
in regulis et constitutionibus excludatur aut coar-
ctetur.
Can. 531 establishes nothing else but the well-known
and ancient truth that there are religious who are capable
of owning property and others who are not. Not only
the institute as such, it says, but each province and house
are capable of acquiring and possessing temporal goods
together with a stable income or funds, unless their rule
or constitutions exclude or restrict this right.
This right of single ecclesiastical corporations to own
property is an inherent right not only of the whole
Church,1 but of each society and corporation which forms
part and parcel of the Church. Blackstone says ■ the
third absolute right inherent in every Englishman is that
of property, which consists in the free use, enjoyment
and disposal of all his acquisitions, without any control
or diminution, save only by the laws of the land.
The origin of private property is probably founded in
p
"-.
1 Cfr. can. 1495.
s BI»ck»tone-Cooley, Commentaries, Chicago, 1879, I, rj7; II, 8.
199
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 531 173
nature. By an easy transposition we may say that, since
each institute, or province, or community consists of sin-
gle persons — though they are not all Englishmen —
endowed with that inherent right, it follows that the
community as such also possesses the same. But it is
also true that this right is controlled by the laws of a
higher authority, which, so far as religious corporations
are concerned, is that of die Apostolic See. We do not
mean that the Apostolic Sec is the real owner of all
corporative religious property. This would be incom-
patible with the true notion of property right.8 The
immediate and proper subject of property is the com-
munity itself, whether it be regarded as a legal fiction
(vis., the single members as one juridical or artificial per-
son) or simply as a group of physical persons acting
under special rules as far as representation is concerned,
and governed by special rules as regards succession.*
For it legally matters but little which theory is adopted
either before the ecclesiastical or the civil courts. But
essential to any corporation, in general, are two elements:
a group of members and corporate rights vested in them
as a corporation, asserted and applied by lawful repre-
sentatives, be they trustees, managers, or directors. To
these a third essential element must be added, as far as
positive laws are concerned, namely, the sanction of
legitimate authority. Though it is perfectly true that
corporations were originally created by the mere act and
voluntary association of their members,5 and are there-
fore natural products of human and ecclesiastical so-
ciety, yet the Church as well as the State is entitled to
interpose its authority. The Church must give its ap-
S Exception, of course. Is to be 4 Cfr. New International Encjel.,
made concerning orders (mendicant) 1904, V, 438.
incapable of possessing property. & B lackst one- Cool ey, /. c, I, 472.
G 1 Original from
°°alc UNIVERSITY QFWI5C0NSIN
174
RELIGIOUS
probation. But the State is also concerned, since all
temporal property is located within its territory and falls
within its sphere. The U. S. does not recognize any
ecclesiastical corporations as such, though it does ac-
knowledge them as private civil corporations subject to
the laws of each State. Therefore it is important that
religious communities, at least those which, according to
ecclesiastical law, are capable of holding properly, should
be chartered, because the charter grants them legal exist-
ence, fixes their right of making by-laws, and, in a word,
endows them with an official character, which the courts
must acknowledge.0
This last observation gives rise to a question, vis,, Is
it in accordance with the " public policy " of any of our
States to grant or acknowledge a charter to religious
societies?
As stated above, the U. S. does not create or acknowl-
edge any ecclesiastical corporation as such. Hence a
purely religious society, for instance, for perpetual adora-
tion need hardly apply to the State legislature for a
charter. However, if an educational or charitable pur-
pose is involved, the State will readily grant corporate
rights. Thus, e. g., a charter was issued by the New
Jersey legislature, on March 5, 1868, to St. Mary's Abbey,
Newark.7 Thus also the Shakers and Oneida Communi-
ties received a charter from Stnte legislatures. St.
Mary's Abbey was acknowledged as "a society of reli-
gious men living in a community and devoted to chari-
table works and the education of youth." 8
-
o Cfr. K. Zollmann, American
Civil Church Law. igi7, p. 81 ff., a
splrmlid contribution to the science
of laws as prevailing in our country
with regard to ecclesiastical insti*
tutiona.
T Cfr. Brief in behalf of Plaintiff
in Error, Supreme Court. Oct. terra.
I9'3> "■ 367.
a Ibid., p. 5-
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 531 175
Certainly such an institution cannot be said to be
against public policy. By public policy is meant that
principle of the law which holds that no subject can law-
fully do that which has a tendency to be injurious to the
public or against the public good, and which may be
termed the " policy of law " or " public policy in relation
to the administration of law." Whatever is contrary, or
alleged to be so, must be determined from the consti-
tution and laws and judicial decisions of each State. No
religious society approved by the Church can embody a
fact or principle which an honest man has to condemn,
but all contain some things which all men ought to ap-
prove. All distinctly inculcate the duty of honest in-
dustry, contentment with a competency, and charity to
the poor and suffering.0 We may safely apply to any
Catholic corporation or religious body what has been
said of the Shakers' Community: So long as piety is
recognized by common assent, and by the legislature, as
a valuable constituent in the character of our citizens, the
general law must foster and encourage what tends to
promote it. In legal estimation, it must be viewed as
what is not only estimable in itself, but as an appurte-
nance to the character of individual citizens, of great
value to society, for its tendency to promote the general
weal of the whole community.10
However, it is sometimes objected that by the vow of
poverty one surrenders the inherent and natural right
to acquire and hold property in his own name — a sur-
render to which our Constitution is apparently opposed.11
We answer: If by surrendering his right to personal
property a professed member of a religious community
9 Ibid., p. 45; p. 47; p. 55. the cmc of St. Mary's Abbey vs.
10/fciJ., p. 55. the heirs of Fr. Augustine Wirth,
11 This was the plaintiffs jlea in OS. P..
Go >gle
% ,1 , Original fro rn
UNIVERSITY OF WISCONSIN
176 RELIGIOUS
would also surrender his right to a decent support and
existence, it might be granted that there is something
immoral in the vow of poverty. However, this is not
and has never been the case. The very definition given
by canonists should disperse any misgivings as to abso-
lute surrender. They say that the vows are a bilateral
contract between the individual member and the reli-
gious community, in virtue of which the former promises
to devote his life and work and possessions to the com-
munity, in lieu of which the latter has to support him in
health and sickness unto death. We might as well call
marriage an immoral contract because it involves the
surrender of the body.12 A court in Maine said con-
cerning the community of the Shakers that a contract
with another to serve him for ten years, for an accept-
able compensation, can not be proved to be illegal. This
leads us to another aspect of the question. A religious
community consists of various members, some of whom
take the vows forever, while others take them only for
a determined time, after which they may step out. No
absolute surrender can be construed in the case of the
last-mentioned class. Even those who have taken per-
petual vows may be " secularized " with the cooperation
of ecclesiastical authority. It is precisely for this reason
that religious corporations have adopted by-laws govern-
ing cases of secession, by which they provide for the wel-
fare of the community and its continuance and prevent
seceding members from claiming compensation for serv-
ices performed during their membership.
A last remark may conclude this section. How can
a corporation endowed with property rights arise out of
members who have given up their rights? Or, if all the
members have vowed poverty, how may the community
II I Cor. 7. 4-
Go >gle
j ^ Original fro rn
UNIVERSITY OF WISCONSIN
CANON 531 177
a
a
possess property? The apparent paradox disappears if
it is remembered that those who enter the religious state,
although they surrender the right of possessing personal
property, do not waive that of possessing property in
common, as members of such or such a community, so
far as the higher authority permits. To this authority,
vis., the Sovereign Pontiff, it belongs to decide whether
or not property rights are attached to an ecclesiastical
corporation. As to the vow, it requires no more than
that personal claims be given up. Besides, let it again
be emphasized, no religious can surrender the claim to
decent support, for such an act would amount to suicide.
Lastly, there are members, even in religious orders with
solemn vows, who retain the right of holding property,
for instance, the clerics with simple vows and lay broth-
ers. Nor must it be overlooked that the Church may
grant to a society property rights which are denied to
the individual members. And this precisely is the dis-
tinction, alleged in our canon, between orders capable of
property rights and such as are incapable of possessing —
at least a certain kind of — property. However, even
the so-called Mendicant Orders enjoy a certain right to
property. The name Mendicant is applied to those reli-
gious orders which, by virtue of their original or primi-
tive rule, observe poverty not only individually, but also
as communities or convents, and are satisfied with alms
humbly begged, or donations freely given, or things ac-
quired by the labor and industry of the members.18 But
with the exception of the brown Franciscans and the
Capuchins the Council of Trent decreed that even Men-
dicant Orders should possess land.1* Concerning the
two orders mentioned it is generally understood that the
immovable property in their charge (convents, churches,
it ReiiTemtucl, III, ji, a. %?. 1* Sets. 25, c. 3, de ref.
I Original from
•UOglt UNIVERSITY OF WISCONSIN
178 RELIGIOUS
etc.) is held by the Apostolic See10 as immediate pro-
prietor, whilst the members and actual occupants have
the usufruct of the same. Neither of these two orders is
capable of receiving legacies, if the sum itself is to be
delivered to them, but they may obtain and use the in-
-
terest of legacies paid annually by the heirs.10
■
Can. 532
§ 1. Bona turn religionis, turn provinciae domus-
que, administrentur ad normam constitutionum.
§ 2. Expensas et actus iuridicos ordinariae admi-
nistrationis valide, praeter Supcriores, faciunt, intra
fines sui muneris, officiales quoque, qui in constitutio-
nibus ad hoc designantur.
This canon provides that the property of a religious
order or congregation, as well as that of the different
provinces and houses, should be administered according
to the rules laid down by the respective constitutions,
which are supposed to agree with the common law, or,
at least, to be approved by the Apostolic See.
§ 2 says that expenses and juridical acts of ordinary
administration may be validly made or performed by the
superiors within the limits of their office, and by the
different officials appointed under the constitutions.
Civil law requires that the names of the officials of cor-
porate societies be registered at the State treasury. This
requirement must be complied with also by ecclesiastical
corporations if they are acknowledged as private civil
corporations, otherwise their officials may not perform
legal or juridical acts. For juridical acts are such as
are harmonized with the law for the sake of legal validity.
<
15 Cfr. can. 5R3. ■*«
la S. C. C, May 31. wail Oct. 3, 1731 (Richter, Trid., p. tttff.).
jle
j , Original fro ni
UNIVERSITY OF WISCONSIN
Q
CANON 533 179
Thus acts of buying and selling are juridical acts if per-
formed in conformity with the law. Acts of ordinary
administration are such as occur frequently and are per-
formed without special formalities, such as are required,
e. g., if expenses are to be incurred that exceed the limits
allowed by the Constitutions and the common law.
the ordinary's rights
, Can. 533
§ 1. Pro pecuniae quoque collocatione servetur
praescriptum can. 53a. § 1; sed praevium consensum
Ordinarii loci obtinere tenentur :
i.° Antistita monialium et religionis iuris dioecesani
pro cuiusvis pecuniae collocatione ; imo, si monialium
monasterium sit Superiori regulari subiectum, ipsius
quoque consensus est necessarius;
2.0 Antistita in Congregatione religiosa iuris ponti-
ficii, si pecunia dotem professarum constituat ad
normam can. 540;
3.0 Superior vel Antistita domus Congregationis re-
ligiosae, si qui fundi domui tributi legative sint ad Dei
cultum beneficent iamve eo ipso loco impendendam;
4.0 Religiosus quilibet, etsi Ordinis regularis alum-
nus, si pecunia data sit paroeciae vel missioni, aut re-
ligiosis intuitu paroeciae vel missionis.
§ 2. Haec item servanda sunt pro qualibet colloca-
tionis mutatione.
§ 1 refers, first and above all, to the investment of
money, which must be made according to the constitu-
tions with the previous consent of the Ordinary,
(1) As often as, and in whatever amount, the su-
perioress of nuns {monialium), or of a diocesan insti-
tute, wishes to invest money. If the nuns are subject
I Original from
1 K H 'gie UNIVERSITY OF WISCONSIN
180 RELIGIOUS
to a regular prelate, the superioress must also ask the
consent of the prelate;
(2) The superioress of a papal congregation of reli-
gious must obtain the consent of the Ordinary in case
she wishes to fix the dowry of a professed member in
money, according to the rule laid down in can. 549 ;
(3) The superiors and superioresses of religious con-
gregations need the consent of the Ordinary in case they
wish to use for the house or school funds that were given
or bequeathed for divine worship or benevolent purposes ;
(4) Religious, including members of the regular or-
ders, need the consent of the Ordinary for investing
money which was given to the parish or mission, or to
the religious himself for a parochial or missionary pur-
pose.
The same rules must be observed if any change of
investment is made.
This canon does not touch communities of men with
solemn vows, but it embraces, in one way or the other,
all other religious, even women with solemn vows, and
individual regulars as far as they are connected with
parish work. The reason for this difference lies in
exemption. It may seem strange that the superiors of
female congregations approved by the Holy See are not
subject to the same regulation as superioresses of nuns
of diocesan congregations regarding investment of
money. Can. 510 solves the riddle, for it requires that
the quinquennial report to be sent to the Holy See must
first be submitted to the Ordinary in whose diocese the
mother-house is, and who is therefore entitled to ex-
amine the financial state of such congregations in order
to persuade himself as to the truthfulness of superiors,
etc.
(1) First among the matters subject to the consent of
jle
% .,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 533 181
the Ordinary we note investment of money (pro pecuniae
collocatione). To invest IT is to spend money in the pur-
chase of property, especially for permanent use, or to
put capital into other forms of property, for instance,
government or other bonds, shares in stock companies,
etc. But we do not call it investing when we put money
into a bank, even though with the intention of obtaining
interest ; for money is generally put into banks in order
to facilitate trading by checks and drafts, which is the
common way in our country, though not yet so universal
in Italy and elsewhere. Therefore the consent of the
Ordinary is not required for banking money ; the oppo-
site opinion would lead to absurdities." But any in-
vestment properly so-called, as denned above, needs con-
sent. The amount is stated in the text, which simply
says: for any money (cuiusvis pecuniae), little or much.
The consent of the Ordinary need not be asked each time,
but may be given for a certain sum, to be invested in
various ways, or even for a certain time, nor is written
consent prescribed, oral being sufficient.
(2) Episcopal consent is required if the superioress
of any papal institute wishes to fix the dowry in money
or cash. The reason for this ruling is to be sought in
can. 549, which demands that the dowry be established
"in safe, licit, and fruitbearing titles." Hence, if the
dowry is to be demanded in cash, rather than in secure
titles, the consent of the Ordinary must be asked.
(3) The superiors of religious congregations, whether
of men or women, must obtain the consent of the Ordi-
nary if they wish to use funds donated or bequeathed
for purposes different from those for which they were
IT Cicero uses the expression. netting of cattle, products, imple-
*' callecare pecuniam in fundo," to ments, etc., properly called an in-
invest money in landed property. veitment.
IB Neither is the daily buying* and
>Ic
/•^ ^ v ,] Original from
UNIVERSITY OF WISCONSIN
182 RELIGIOUS
given. Thus, for instance, a pious lady may have given
or bequeathed a certain sum for the chapel or church of
a religious community, or another may have left a dona-
tion or legacy for an orphanage or home for the aged.
Now although these religious may own the chapel or be
in charge of the charitable work, the use of such funds
for other purposes is not allowed except with the con-
sent of the Ordinary, he being the guardian of all chari-
table institutes and places of worship.10 However, if
the funds are given to a religions congregation because of
the charitable works it does, they may be freely adminis-
tered and used by the superior without asking the bishop,
who must only see to it that the money is used properly
and according to the intentions of the donor.20 Canoni-
cal visitation is the proper occasion for investigating, as
also the examination of the quinquennial report.
(4) Any religious, even though a member of a regu-
lar order, must have the consent of the Ordinary if he
wishes to invest church or mission money, via., money
received from pew-rent, receipts from seats, church col-
lections, collections taken up at lectures in favor of the
church, house collections and subscriptions. In this
category also belongs money given to a religious for his
mission or church, but not personal donations, or such
donations as are given to a religious because he is a
religious or a member of a certain community. Hence
any investment of church money needs the consent of
the Ordinary of the diocese in which the church or mis-
sion is located, not of the Ordinary in whose diocese the
investment is to be made.
§ 2 prescribes that the Ordinary's consent must also
be obtained — not only asked for — for a change of in-
1» Cf. can. 1493, 1513-1515: Leo *o Cf . Btttien-Lantlots, I. c.# p.
XI IX, " Condiiat," XI, 9. 146'.'
Q
(M
'■-.
>Ie
k %\^ " riginal from
UNIVERSITY OF WISCONSIN
-
CANON 534 183
vestment. Thus if the money was invested in real es-
tate and is to be re-invested in stocks or bonds, or con-
versely, episcopal consent must be obtained. If the
money was loaned on interest, and is now to be invested
in real estate, the consent is also required.
alienation
Can. 534
§ 1. Firmo praescripto can. 1531, si agatur de
alicnandis rebus prctiosis aliisvc bonis quorum valor
superct surnmam triginta millium francorum seu libel-
larum, vel dc contrahendis debitis ct obligationibus
ultra indicatam surnmam, contractus vi caret, nisi
bcneplacitum apostolicum antcccsserit ; secus, requiri-
tur et sufRcit licentia, in scriptis data, Superioris ad
nor mam constitutionum cum consensu sui Capituli seu
Consilii per secreta suffragia manifestato; sed si agatur
de monialibus aut sororibus iuris dioecesani, accedat
necesse est consensus, in scriptis praestitus, Ordinarii
loci, necnon Superioris regularis, si monialium mona-
sterium eidem subiectum sit.
§2. In precibus pro obtinendo consensu ad contra-
henda debita vel obligationes, cxprimi debent alia
debita vel obligationes, quibus ipsa persona moralis,
religio vel provincia vel domus, ad eum diem gravatur;
secus obtenta venia invalida est.
c
a
The first paragraph contains two main clauses, divided
by the sum of alienation, and the second clause finds its
demarcation line in the kind of religious. The whole
paragraph treats of alienation of church or religious
property. Alienation means any act by which property
is either diminished or deteriorated, transferred or ex-
changed, as by sale, gift, renting, mortgaging of a specified
Q
*Ie
j ^ Original from
UNIVERSITY OF WISCONSIN
N
■
184 RELIGIOUS
piece of property (hypotheca specialis), contract, lease
or other transmission by mutual consent of the parties
concerned.21
The reason for setting up laws against alienation is
the conservative spirit of the Church, who naturally
wishes to have property destined for religious purposes
to remain in the possession of the ecclesiastical owner.
A thousand years before Paul II issued the famous de-
cretal " Ambitiosae" (1468), popes and synods enacted
rules against unlawful and detrimental alienation. Leo I
told the bishops that they were dispensers, not proprie-
tors of church property, and therefore not allowed to
donate, change or sell it, and that if anything was to be
sold or exchanged, it must be done with the consent of
the clergy.22 The seventh general synod (II Nic, 787)
forbade bishops and abbots to grant any church property
to worldly princes or to persons under penalty of depo-
sition.28 This legislation continued until Paul II made
the rather strict law against alienation,24 which, how-
ever, was seldom carried out ** beyond the mountains."
Pius IX (" Apostolicae Sedis," 1869) renewed the laws
against alienation and wished them to be enforced every-
where.25 Our Code adopts these laws in a modified
shape, so that they are now written and general laws, and
ignorance can no longer be pretended.
In can. 534 the Code rules, first, that can. 1531 must
be observed. That canon provides:
§ 1. No property may be alienated for less than it is
appraised.
§ 2. Unless circumstances advise otherwise, alienation
=1 Enact, III. 13. n. 13: Black- III; tit 4. Clem. Ill; c un. Am-
ftone-CooIcy, i. c„ II, 287. bUiotae, Extrav. Comm., Ill, 4.
m C. 52. C. 13, q. a. 25 " Apostolicae Scoit/' Oct 12,
2SC. 19. ibid. 1869. IV, 3
SiCfr. tit. 13. X, III; tit 9, 6*.
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 534 185
o
must be made by public bidding, or at least by advertise-
ment, and to the highest bidder.
§ 3. The money received by alienation must be in-
vested cautiously, securely, and usefully for the benefit
of the Church.
The quintessence of this canon is: business methods
and safety. Auction or bidding are prescribed, as we
learn from innumerable decisions, in order to prevent
squandering of property or undue personal favoritism,
or, what is worse, nepotism. But auctioning is not al-
ways advisable, especially if profane eyes and ears are
to be kept away.
The Code goes on to say:
(1) An Apostolic indult is required for the aliena-
tion of precious things or other goods exceeding 30,000
francs or lire in value, as also for making debts over and
above that sum. Any contract made before the Apos-
tolic indult has been obtained is ecclesiastically invalid.
The Apostolic indult is a permission granted by the
Congregation of Religious, to which application must be
made.
(2) The matter alienated may be either precious things
or property. By the name precious things are under-
stood church vessels, vestments, treasures and books
which have a special value, either by reason of antiquity
or of artistic excellence. 2B " Other goods " (aliisve
bonis) comprise especially immovable property, such as
buildings and landed estates, but also " certain rights
and revenues, e. g., a lease on coal-fields or mines, lia-
bilities to certain burdens or duties, the right of fishing
or hunting, rights of way, etc. Revenue would be State
pensions, bonds, stocks, etc. If the value exceeds the
MEngel, III, 13. n. 5; R,riffcn- 27 C. 1, Clem. Ill, 4; Rciffenr
«&u«I, III, 13, n. ia, ftud. III, 13, n. ia-
oogle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
186 RELIGIOUS
sum of 30,000 francs or lire, the transaction requires an
Apostolic indult. Selling of stocks and produce is no
alienation.
(3) How much is 30,000 francs or lire in our money?
In normal times, such as the Code doubtless has in view,
it would be about 6,000 dollars. " And for that small
sum we have to ask Rome ? " This question was put to
us more than once, and those who put it asserted that a
lira or franc is practically equal to a dollar of our money,
and hence the Code means $30,000. However, this rea-
soning is wrong. We know from experience that a dol-
lar does not equal a franc, but that the average propor-
tion would be about 1:23/2, that is to say, one dollar
would buy as much as two lire and a half in Italy or two
francs and a half in France. Furthermore, it is well
known that the bishops needed special faculties to alien-
ate property exceeding $5,ooo.28 Gradually, because of
the decline in the value of money, the Holy See raised
the sum from 10,000 francs to 30,000 francs, which it
considers almost excessive. To fully convince the
reader that the legislator intended the market value of
Italian or French currency as the standard of valuation
(i. e., about $6,000 in our money), we will state this
case : A rescript arrives from Rome, which costs 8 lire,
or about $1.60. Will the prelate remit $8 instead of
$1.60? We believe, however, that now-a-days about
$10,000 or $12,000 would correspond to the intention of
the Code, because land as well as building material have
risen so much in value that $6,000 are really but a small
sum for religious institutes worthy of that name. On
the other hand, it is a lamentable fact that religious
houses often run into debt simply in order to outshine one
« Cone. Bmlt, III, n. so; Bachofcn, Compendium Iuru Rtg., p. 305.
,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gle
CANON 534 187
another. The Roman Court, as we know, could tell tales
to that effect.
(4) The Code then applies the requisite of an Apo-
stolic indult to the contracting of debts to the same
amount Here observe the difference between the new
-
legislation as set forth in our Code and that of the
S. Congregation of Religious, July 30, 1909, which re-
quired an Apostolic indult for any sum exceeding 10,000
lire, whilst our Code raises the sum to 30,000 lire or
francs — the two being almost equal in market value
before the war.
The next clause of can. 534, § I, rules that if the sum
does not exceed 30,000 lire or francs, the written per-
mission of the superior, according to the respective con-
stitutions, is required and sufficient, provided the consent
SI
or counsel (given by secret ballot) of the chapter was
obtained. Cardinal Gasparri, in his notes, refers to the
above-quoted instruction of the S. Congregation of Re-
ligious of 1909, which, therefore, may be said to be the
will of the legislator, at least as a directive norm. No. I
of the instruction referred to requires the consent of the
chapter or counsel of either the religious house, or the
province, or the congregation or order, according as the
matter touches these entities respectively. But our Code
leaves it to the constitutions, which must therefore be
consulted. No. V of the instruction insists that every su-
perior have counsellors elected by the free choice of the
community ; their number to be four if the community
has more than twelve members, and two, if there are less
than twelve. No. VI rules that the votes are to be given
secretly and are decisive, and the permission granted by
the superior in accordance with the decisive votes given
by the counsellors, or the chapter, must always be given
in writing. No. VII gravely enjoins religious superiors
■"■
I Original from
1 K H 'gie UNIVERSITY OF WISCONSIN
-
188 RELIGIOUS
not to hide any income, debts, obligations, or donations
of value from their counsellors. The sum below
30,000 lire, for which the consent of the counsellors or
chapter is required, is not stated in the Code, except in
so far as it refers to the Constitutions. But one thing is
certain, namely, that under the new Code consent is re-
quired, not only adince, and therefore any transaction
performed by the superior without the consent required
by the Constitutions would be not only illicit, but in-
valid.519
The second part of the second clause treats of nuns
and Sisters of a diocesan congregation who wish to
alienate or contract debts below the sum of 30,000 francs.
These, says the Code, must obtain the written consent
of the Ordinary of the diocese, and if they are subject
to a regular prelate, also the written consent of the latter.
Hence these nuns and Sisters must first and above all
obtain the consent of the chapter or counsellors, given by
secret vote ; secondly, the written consent of their ecclesi-
astical superiors, either of the Ordinary alone, if they are
a diocesan institute, or of both the Ordinary and the
regular prelate, if they are nuns with solemn vows.
Why are the Sisters of a papal institute not obliged to
obtain the consent of the Ordinary ? Because their con-
stitutions, which must necessarily contain a chapter on
temporal administration, are approved by the Pope, who
regulates that matter according to common law and the
constitutions.
The petition submitted to obtain the papal consent for
contracting debts or obligations must state all the debts
and obligations of the corporation, institute, province
or house up to the day of the petition. If no mention
thereof is made, the rescript is invalid. What debts are
tt Cir. can. 105.
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 534 189
a
a
is evident. As to obligations, the term includes all finan-
cial or economical titles, bonds or deeds whereby the
maker obliges himself, his heirs, executors, and adminis-
trators, to pay a certain sum of money on an appointed
day.30 This may be done legally or informally, by a
mortgage or note, by giving security or bail, conditionally
or absolutely. Mass-obligations are not included because
they are not financial obligations.
The Code requires that mention be made of all debts
or obligations, no matter how large or small the sum —
because no amount is specified — in the application for
a papal indult, if required according to can. 534, § I,
that is to say, if the institute wishes to contract new debts
or obligations exceeding the sum of 30,000 francs or lire.
The statement must be truthful, because subreptitious
mention might invalidate the rescript,31 especially if a
considerable sum were concealed.
To complete the law on alienation we may add that the
Code has also fixed penalties s* which increase with the
sum unjustly alienated, the greatest of which is excom-
munication, not reserved to any one. A religious supe-
rior may be deprived of his office and rank if he alien-
ates without the necessary consent a sum less than 30,000
francs. Furthermore any religious may appeal to the
S. Congregation of Religious, or to the Ordinary, if his
or her superior violates the laws laid down in canon 534,
as the Decretals,38 which are not corrected or repealed in
our Code, clearly state.
It is, however, evident that papal consent is not re-
quired in cases of urgent need, as, for instance, to satisfy
creditors demanding immediate payment through a court,
80 Blackitone-Cooley, II, 340; S. 11 Can. 42, 9 1, cannot be applied
C. Re!., July 30, 1909 tA. -4/. S., here.
I. 696). »2 Can. 2347.
»C6, X, MX, 13; c. a, 6MII.9-
jle
j , Original from
UNIVERSITY OF WISCONSIN
Q
190 RELIGIOUS
or in case of absolute necessity or charity admitting of
no delay, or in case of evident utility where postponement
would entail a serious loss." But the law requiring the
chapter's consent can never be set aside, for cases of such
urgency are hardly imaginable.
rendering of accounts
Can. 535
§ 1. In quolibet monialium monaster io etiam ex-
empt© :
i.° Administrationis ratio, gratis exigenda, reddatur
setnel in anno, aut etiam saepius si id in constitutioni-
bus praescribatur, ab Antistita Ordinario loci, itemque
Superiori regulari, si monasterium sit cidem subiec-
tum;
2.0 Si ratio administrationis Ordinario non pro-
betur, ipse potest opportuna remedia adhibere, etiam
removendo, si res postulet, oeconomam aliosque ad-
xninistratores ; quod si monasterium sit Superiori
regulari subiectum, eum Ordinarius, uti prospiciat,
moneat; quod si ille neglexerit, ipse per se consulat.
§ 2. In aliis mulierum religionibus, ratio admini-
strationis bonorum quae dotes constituunt, Ordinario
loci reddatur occasione visitationis et etiam saepius,
si Ordinarius id necessarium duxerit.
§ 3. Loci Ordinario ius insuper esto cognoscendi:
i.° De rationibus oecpnomicis domus religiosae
iuris dioecesani ;
2.° De administratione fun do rum legatorumque de
quibus in can. 533, § I, nn. 3, 4.
§ 1. For every monastery of nuns, even those who are
exempt,
84 B astie n • La n slots, /. c, p. 329.
§le
% ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
CANON 535 191
i.° The superioress must furnish gratuitously once a
year, or oftener if the constitutions so prescribe, an ac-
count of her administration to the Ordinary of the dio-
cese, and to the regular superior if the monastery be
subject to regulars.
2.0 If the Ordinary does not approve of the account
of the administration furnished him, he may apply the
necessary remedies, including even the removal from
office of the procuratrix and other administrators ; but if
the monastery is subject to a regular superior, the Ordi-
nary shall request him to see to it; and if the regular
superior fail to do so, the Ordinary himself must deal
with the case.
§ 2. In other institutes of women, the account of the
administration of the property constituted by the dowries
must be furnished to the local Ordinary at the time of
the canonical visitation, and even oftener if the Ordinary
deems it necessary.
§ 3. The Ordinary of the diocese has also the right of
enquiring into:
i.° The economic status of every religious house with
diocesan approval ;
2° The administration of the funds and bequests made
for divine worship or charitable work, as well as of all
property belonging to the church or mission, although
administered by regulars.
To this canon we will only add that it would be ad-
visable for the bishop to appoint as auditor for that pur-
pose a priest whose practical knowledge he could make
use of at visitations.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
192 RELIGIOUS
responsibility and donations
Can. 536
§ 1. Si persona moralis (sive religio, sive provincia,
sive domus) debita et obligationes contraxerit ctiam
cum Superiorum licentia, ipsa tenetur de cisdem re-
spondere.
§ 2. Si contraxerit regularis cum licentia Superi-
orum, respondere debet persona moralis, cuius Supe-
rior licentiam dedit; si religiosus votorum simplicium,
ipse respondere debet, nisi de Superioris licentia
negotium religionis gesserit.
§ 3. Si contraxerit religiosus sine ulla Superiorum
licentia, ipsemet respondere debet, non autem religio
vel provincia vel domus.
§ 4. Firmum tamen semper esto, contra eum, in
cuius rem aliquid ex inito contractu versum est, sem-
per posse actionem institui.
§ 5. Caveant Superiores religiosi ne debita contra-
henda permittant, nisi certo constet ex consuetis
reditibus posse debiti foenus solvi et intra tempus non
mmis longum per legitimam amortizationem reddi
summam capitalem.
Can. 537
Largitiones ex bonis domus, provinciae, religionis
non permittuntur, nisi ratione eleemosynae vel alia
iusta de causa, de venia Superioris et ad normam con-
stitutionum.
§ 1. If a corporation (whether an institute, a province,
or a house) contracts debts and obligations, even with the
permission of superiors, it is personally responsible for
them.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 536 193
§ 2. When a regular, with the permission of his su-
periors, contracts debts and obligations, the corporation
whose superior gave the permission, bears the responsi-
bility ; if it is a religious with simple vows, he himself is
responsible, unless he acted with the permission of the
superior, and on behalf of the institute.
§ 3. If a religious contracts debts and obligations with-
out any permission of superiors, he himself is responsible,
but not the institute, the province or the house.
§ 4. In every case, it is a rule that an action can al-
ways be brought against him for whom the contract has
been a source of profit.
§ 5. Superiors must beware not to allow the contract-
ing of debts unless it be certain that the interest on them
may be met from current revenue, and that within a rea-
sonable time the capital may be paid off by means of a
lawful sinking-fund.
This canon is intended to protect religious institutes
and to warn outsiders against unguarded dealing with
religious who have not the proper authorization. It is
evident that a corporation acting in its own name is re-
sponsible for its action, although the superior alone may
have sanctioned it, for the quality of a juridical person
is inherent in the corporation as such, not in the superior.
A regular superior with solemn vows cannot form a cor-
poration sole, unless he has obtained a special papal
indult. Hence legal action must be instituted against
the corporation as such.
§ 2 speaks of individual religious contracting debts.
Here a distinction is made. A regular, or member of an
order with solemn vows, is incapable of transacting busi-
ness and therefore the corporation as such is liable for
his acts. A religious with simple vows retains the right
to acquire and own property, and consequently must be
I Original from
' K H \SIL UNIVERSITY OF WISCONSIN
194 RELIGIOUS
St
held personally responsible for all business transacted
by him, unless he is the authorized representative of the
community. This is also true of a religious with simple
vows who, though belonging to an order with solemn
vows (for instance, a lay brother or a cleric in tempo-
rary profession) contracts debts or obligations without
being commissioned thereto by his superior.
§ 3 is taken from the Decretals,85 where there is a
canon of the IVth Latcran Council which says that a
convent should not be held responsible if a religious went
security for another or borrowed money without the con-
sent of chapter or superior, unless the transaction was
favorable to the community. Lay persons may some-
times be deceived by a religious who pretends to act in
the name of his community, but careful business men
will always assure themselves of the official character of
any religious they may have to deal with.
Notice that in this paragraph (3) no distinction is
made between regulars and religious with simple vows ;
hence the text covers all.
Though the ancient ecclesiastical law seemingly ex-
cludes legal action against a religious institute, the Code
says in § 4 that such action may be instituted for un-
fair dealing. Therefore a business man mav sue a re-
ligious institute to recover money or goods acquired by
a member who acted without authority. But the first
subject to be dealt with would be the offending religious
himself, and then only the community. The latter could
be condemned to restitution or compensation if the en-
richment was illegal. Attention must be drawn to can.
120 (privilegium fori), which requires the Ordinary's
permission for citing religious before a civil court.
§ 5 warns religious against making debts which would
as c. 4. X, III, 33.
Q
jle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 537 195
weigh too heavily on the community. What the Code
says of amortization or reduction and extinction of debts
by means of a sinking-fund is certainly good advice.
On the other hand, however, it is a well-founded saw
that debts are a good thing for religious communities
because they stimulate the members to untiring labor and
prevent religious houses from becoming too rich.
Can. 537 prohibits the making of presents out of the
goods of a religious house, province, or institute, unless
by way of almsgiving or for other just reasons and with
the consent of the superior and in conformity with the
constitutions. The reason for this prohibition lies in
the vow of poverty as well as in the desire of cutting off
opportunities for feasts and banquets, as we read in a
circular letter of the S. Congregation of Bishops and
Regulars, of July 28, 1708.30 The Code has taken as its
standard the Constitution of Urban VIII, " Nuper" of
Oct. 16, 1640, which mitigated the severe Constitution
of Clement VIII, " Rcligiosae congregationes," of June
*9> I594- The latter had prohibited any gifts or dona-
tions by religious and obliged the receiver to make resti-
tution. Urban VIII permitted presents in token of grati-
tude or for other religious motives, which turn to the
benefit of the house, excluding, however, donations of any
considerable amount by superiors as well as officials and
individual religious in their own name, enjoining that all
be done in the name of the monastery." Urban VIII
did not revoke that part of Clement VIII's Constitution
which obliged to restitution the recipients of presents
illegitimately made by religious.
Here it may not be amiss briefly to state the moral ob-
ligations of donors and recipients in case they have acted
8a Biriarri, /. c, p. .198.
IT S. C. EE. ct RR., Feb, 1791 (Bizzirri, ibid.).
G I Originalfrom
008IL UNIVERSITY 0FWI5C0NSIN
196 RELIGIOUS
against canons 536 f. Supposing the sum alienated or
donated (e. g., to relations or friends) is over $10. which,
according to Innocent XII {" Romanus Pontifex") was
considered enough to reserve the case to the S. Peniten-
tiary ,88 we may say:
a) A religious With solemn vows, being unable to own
property, cannot make restitution in the proper sense.
But he is obliged to tell the recipients that they must re-
store the value of the present, unless they are poor or
unwilling to make restitution. If they are in good faith
and it is not likely that an admonition would avail, the
donor may omit this admonition and leave them in good
faith. If the recipient is jx)or and needy, nothing is to
be done.
b) A religious with simple vows, who retains the right
of holding property, is obliged to make restitution out of
his own means, supposing that he or she has property or
may expect such in the future; and this obligation never
ceases. Of course, if he can prevail upon the recipient
to restore the goods given out of the religious property,
this would be the simplest way out of the difficulty. It
may be added that tips to waiters or porters, small gifts
as tokens of gratitude, etc., do not oblige to restitution,
and if made for a good reason, are not against poverty.
Religious articles, such as medals, pictures, etc., may be
given without fear of violating poverty. A religious
when travelling is allowed to act like a gentleman towards
those whose help or assistance or good will he needs.
Finally, can. 537 allows donations to be made as alms or
for any just reason, provided the superior consents.
SB There ii, of course, no longer reserve the cue if there were an
any reservation, because common urgent reason for doing to. Be*
law makes no mention thereof. The sides, 10 scud% would now-a-days
religious (exempt) superior might barely amount to $50.
jle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 537 197
This consent may be presumed in cases of urgency or
necessity. Too rigid an insistence upon poverty when
charity calls is against the very groundwork of religion.
Religious are not to be stingy, hut the saying of the
Apostle was also intended for them : " It is a more
blessed thing to give rather than to receive " (Acts 20,
35). Besides, every religious community has a social
position to fill and a social duty to live up to. The an-
cient monasteries were fully aware of this great and
noble task.
■■dbyC- jle
I , Original from
UNIVERSITY OF WISCONSIN
■
D
".
Title XI
admission to religious institutes
Can. 538
In religionem admitti potest quilibet catholicus qui
nullo legitime detineatur impedimento rectaque inten-
tione moveatur, et ad religionis onera ferenda sit
idoneus.
Every Catholic who is not prevented by any legitimate
impediment, and is inspired by a right intention, and fit
to bear the burdens of the religious life, can be admitted
to the same.
Four general conditions are here set up for entering
the religious life:
(i)The aspirant must be a Catholic, for the Code does
not legislate, at least not directly, for non-Catholics.
Besides, since no religious institute can legally exist with-
out the approval of the Church, and the Church in con-
crete terms is the Catholic Church, it is evident that the
religious state is open only to such as acknowledge the
legitimate authority of that Church. Finally, as a mat-
ter of experience, the religious state appears to prosper
only within the pale of the Catholic Church."0
(2) The person who wishes to enter a religious insti-
tute must not suffer from any legitimate impediment (see
so It is a well-known fact that of the latter, as some communities
some Anglicans endeavored 10 inii* returned corporative!)* to the
tate the example of the Catholic Mother Church.
Church, not at all to the detriment
196
jle
( * -» .. iL» Original fro ni
UNIVERSITY OF WISCONSIN
CANON 538 199
o
can. 542). The natural law precludes the assumption of
the religious habit by a person who is mentally unsound.40
As to bodily defects, it may be well to follow the instruc-
tion of Clement VIII (1603), which demands that the
postulant be examined to ascertain whether he suffers
from a considerable deformity, or shows sign of great
bodily debility or stupidity (fatuitas). For such defects,
though not disgraceful to the individual, may draw ridi-
cule upon a religious community and the religious state
in general.*1
(3) A right intention is required because the end of
the religious life is holy, — namely. Christian perfection,
which demands full attention and a determined effort. A
right intention is the glory of God and one's own salva-
tion. Any other would be either sinful or dangerous.
A wrong intention would be material interest, provision
for life, honor and dignities.42 It is not without reason,
therefore, that canonists require a special vocation as a
condition of admission to the religious state. On the
other hand, St. Thomas is satisfied with a general call,
which may also satisfy us. This general call, he says,
consists in the invitation of Christ to follow the evan-
gelical counsels.43 An ambiguous use of terms seems,
however, to have caused some divergency of opinion.4*
The invitation to the higher life is extended to all, but
the actual choice of the religious state seems to proceed
from either efficacious or sufficient grace, no matter how
we look at the working of that mysterious divine im-
pulse. The word of our Lord : " He that can take it,
let him take it," (Matt. 19, 12) is a strong argument in
favor of a special vocation, unless we choose to deny the
p
"-.
40 Cf. c. 15. X, III, 31. 41 S. Th., Il-n. q. i8g. a. 10.
«i BUxarri, /. c„ p. 848, 5. «> Ci. Tiatus M., r, 32 ff.
42 C. ao, C 16. q. 7.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
200
RELIGIOUS
suave workings of divine providence. Only we must
guard against a too specialized drawing to the religious
state. The safest means to arrive at a practical result
for each one is to pray and to consult with others.
(4) The last general requisite is fitness for bearing the
burdens of the religious life. This fitness may be either
general or special. General fitness must be considered
from the view-point of the three religious vows, particu-
larly that of chastity, because celibacy is not to everyone's
taste. Obedience, too, may deter some from embracing
a state which requires self-denial and subordination.
Special fitness turns upon the nature of each religious
order or congregation. Some are of a contemplative
trend — of these there are but few in our country —
whereas others have an active tendency; some spend
much time and labor on choir service and schools, while
others devote themselves to missionary and charitable
work. Each requires a peculiar mental and physical
aptitude in the aspirant.
45
45 An important defect of the
body would be the lack of a limb
endowed with special functions, for
instance, hand, leg, nose, ear, eye
(Rtzrarri. Coll., p. 848); perhaps
after the war a more lenient prac-
tice will be admitted.
►ogle
Original from
UNIVERSITY OF WISCONSIN
■
CHAPTER I
T
POSTULANCY
duration
Can. 539
§ I. In religion* bus a votis perpetuis rnulieres omncs
et, si agatur de religione virorum, conversi, antequam
ad novitiatum admittantur, postulatum ad sex saltern
integros menses peragant ; in religionibus vero a votis
temporariis, ad necessitatem et tempus postulatus
quod attinet, standum constitutionibus.
§ 2. Superior maior praescriptum postulatus tempus
potest prorogare, non tamen ultra aliud semestre.
§ i distinguishes between various orders of men and
women, such with perpetual and such with temporary
vows. In religious institutes of women with perpetual
VOWS the period of postulancy must last at least six whole
months. The same rule applies to the lay brothers of
male orders with perpetual vows. In institutes with
temporary vows the duration of the postulancy is regu-
lated by the respective constitutions.
§ 2. The higher superior can prolong the time pre-
scribed for the postulancy, but not beyond another term
of six months.
aox
adbyC ->Ic
I , Original from
UNIVERSITY OF WISCONSIN
202 RELIGIOUS
place, dress, enclosure
Can. 540
§ 1. Postuiatus pcragi debet vcl in domo novitiatus
vel in alia religionis domo in qua disciplina secundum
constitutions accurate servetur sub speciali cura pro-
bati religiosL
§ a. Postulantcs vestem induant modestam ac diver-
sam a veste no vitiorum.
§ 3. In monasteriis monialium adspirantes, dum po-
stulatum peragunt, lege clausurae tenentur.
The postulancy must be made either in the novitiate
house or in another house of the institute, where the
discipline prescribed by the constitutions is faithfully ob-
served under the special care of an experienced religious.
The postulants should wear a humble dress, different
from that of the novices.
In the monasteries of nuns (with solemn vows) the
aspirants, during their postulancy, are bound by the law
of enclosure.
Can. 541
Postulantes, antcquam novitiatum incipiant, exer-
citiis spiritualibus vacent per octo saltern integros dies;
et, iuxta prudens confessarii iudiciurn, praemittant
generalem anteactae vitae confessionem.
D
Before beginning their novitiate, postulants should
make a spiritual retreat of at least eight full days, and
according to the discretion of the confessor, a general
confession of their past life.
To these three canons we will only add that they do
not affect the validity of the novitiate or profession ; that
in clerical religious houses only the lay brothers, not the
'■-.
ibyC ;Ic
I ^ Original fro ni
UNIVERSITY OF WISCONSIN
-'
CANON 541 203
clerics, have to make the six months' postulancy; that
the institutes with perpetual vows cannot force the mem-
bers to a postulancy lasting more than a year, even though
the constitutions prescribe a longer term, as the latter
in this point are devoid of legal force.
>Ie
j , Original from
UNIVERSITY OF WISCONSIN
Q
CHAPTER II
THE NOVITIATE
A certain period of probation for aspirants has always
been customary in religious institutes. Thus Pachomius
in his rule 1 prescribes a term of probation, and Cassian
in his " Institutions " speaks of it also.2 This term of
probation must have been a hard time for novices and
candidates. The term of a year has been hallowed by a
long-standing tradition ; almost all the ancient rules pre-
scribe it.1 The place of the novitiate was separate from
the rest of the monastery. At St. Gall in Switzerland,
for example, the novices had their own enclosure, dining-
room, kitchen, dormitory, infirmary, and laundry, as we
see from the plan of that famous abbey built by Gotzbert
in the beginning of the ninth century. Later, among the
Cluniacenses, if the number of novices was small, they
were allowed to mix with the professed members.4 Pro-
bation chiefly turned upon obedience and capability of
bearing the burdens of the religious life.5
1 Reg., c. 49 (Miffne, 23, 70). ent in different monasteries; ibid.,
2 Inst., 1. IV, cc. 3 ff. (Migne, 49. Col. 836.
154 ff«). B The devices employed some-
a Migne, 66, 816. time* bordered on tJie ridiculous
* Migne, 66, 813; concerning the and are not to be imitated now-a-
change of dress, custom was differ- days.
204
s'e
I*"" ^ ,|,, Original from
UNIVERSITY OF WISCONSIN
■
9
CANON 542 205
ARTICLE I
the conditions required for admission to the
novitiate
Can. 542
Firmo praescripto can. 539-541, aliisque in propriis
cuiusque religionis constitutionibus,
t.° Invalide ad novitiatum admittuntur :
Qui sectac acatholicae adhaeserunt ;
Qui a eta tern ad novitiatum requisitam non habent;
Qui religionem ingrediuntur vi, metu gravi aut dolo
inducti, vel quos Superior eodem modo inductus re-
cipit;
Coniux, durante matrimonio ;
Qui obstringuntur vel obstricti fuerunt vinculo
professionis religiosae ;
Hi quibus imminet poena ob grave delictum com-
missum de quo accusati sunt vel accusari possunt;
Episcopus sive residentialis sive titularis, licet a
Romano Pontifice sit tantum designatus;
Clerici qui ex instituto Sanctae Sedis iureiurando
tenentur operam suam navare in bonum suae dioecesis
vel missionum, pro eo tempore quo iurisiurandi obli-
gatio perdurat.
a.0 Illicite, sed valide admittuntur:
Clerici in sacris constituti, inconsulto loci Ordinario
aut eodem contradicente ex eo quod eorum discessus
in grave animarum detrimentum cedat, quod aliter
vitari minime possit;
Aere alieno gravati qui solvendo pares non sint ;
Reddendae rationi obnoxii aut aliis saecularibus *e-
1 Original from
jr^OOglL UNIVERSITY OF WISCONSIN
ao6 RELIGIOUS
St
a
gotiis implicati, ex quibus lites ct molestias rcligio
timere possit;
Filii qui parentibus, idest patri vel matri, avo vel
aviae, in gravi necessitate constitutis, opitulari debent,
et parentes quorum opera sit ad liberos alendos vel
educandos necessaria ;
Ad sacerdotium in religione destinati, a quo tamen
removeantur irregularitate aliove canonico impedi-
mento ;
Orientales in latinis religionibus sine venia scripto
data Sacrae Congregationis pro Ecclesia Oriental!.
Without prejudice to the rules laid down in can. 539-
541, and to others contained in the constitutions proper to
each institute,
i.° The following are invalidly admitted to the noviti-
ate:
Those who have belonged to a non-Catholic sect. The
term " adhaerere " certainly means a wilful act on the
part of the candidate, or, in other words, a formal heretic
or schismatic, as may be seen from can. 1325, § 2, where
the definitions of heretic and schismatic are given. In
both a wilful, stubborn act is required. Hence a boy
or girl educated by non-Catholic parents or relatives
would not fall under the prohibition, as long as he or
she had merely materially and unknowingly followed a
non-Catholic sect, and never pertinaciously denied an
article of the Catholic faith. On the other hand, a sect
is an organization based on contradiction to the Catholic
faith and the unity of the Church. Hence it matters
nothing whether one is a formal adherent of a Protestant
sect or of a schismatical body. For in neither case can
he be validly admitted to the novitiate. Besides, a sect is
generally understood as a body that proclaims some kind
►ogle
f^ -» v -.!,» Original from
UNIVERSITY OF WISCONSIN
-
-'
■
pi
CANON 542 207
of Christian profession, as is evident from the Constitu-
tion of Pius IX, " Apostolicae Sedis" Oct. 12, 1869.*
Hence apostates from the Catholic faith, and members of
a non-Christian denomination (Buddhists, Mohammed-
ans, Jews) are not comprised in this prohibition. How-
ever, as the Code uses the term acatholicae, non-Catholic,
it would seem to include all sects opposed to the Catholic
faith, but not individual apostates, as long as they are
not members of an organized sect. This latter interpre-
tation seems very probable, because the underlying rea-
son of the prohibition is not only horror of heresy, but
weakness of faith, as there is even now an impediment
against receiving orders for neophytes,7 and formerly
was an irregularity from M defect of confirmed faith."
Those who have not reached the age required for the
noz'itiate, which, according to can. 555, is fifteen years.
Those who enter religion under the influence of vio-
lence, or grove fear, or are induced thereto by fraud;
also those whom the superior receives under pressure of
the same influences. Compulsion {vis) destroys the
voluntariness of an act; grave fear diminishes it; fraud,
if deliberate and inspired by the intention of coaxing one
into the religious state, affects the consent of the con-
tracting party.
Physical compulsion is no longer as common as for-
merly, when parents brought their young children to the
monastery. A notable case is that of Gottschalk, who
was an oblate at Fulda under Rhabanus Maurus.8 The
Decretals mitigated this practice, which to us seems ap-
palling, and ruled that a boy was free to embrace the
8 I, 1: " Omnts a ekristiana fide fi He wrote a work on the " Obla-
apostatas el omnes ac singulos haerc tion of Boya," in which he defendt
ticos quocumque nomint censtantur the prevailing custom (Migne, 125,
tt euiuseumqu* ttcts* txistant." 410 ff.).
T C*n. 987.
>gle
Original fro ni
UNIVERSITY OF WISCONSIN
2o8 RELIGIOUS
religious state after fourteen years, and a girl could
repudiate her parents' decision after she had reached the
age of twelve.0 Of grave fear that prompted one to
enter religion an instance is mentioned in the Decree of
Gratian.10 Landulph of Corsica through fear of death
and the rememhrance of his sins left his wife and be-
came a monk. Alexander III declared the step null and
void and allowed Landulph to return to his wife. Grave
fear may be inflicted by foolish parents or relatives, who
sometimes use means of persuasion of a very doubtful
character, such as threats, to induce their children to
enter the religious state. All such measures render the
step invalid.
A more knotty question is that of deceit, because
it cannot be easily proved.11 However, circumstances
sometimes uncover a fraud. Thus, for instance, if par-
ents, desirous of keeping their property together, induce
their younger sons or daughters to enter religion, there
is palpable fraud. Deceit may also be practiced by the
religious, for instance, by holding out a good and pleas-
ant position, honors and dignities, or, as the saying is, a
good time, or by hiding the truth and the real conditions
of the community. However, not every kind of deceit
necessarily makes admission to the novitiate invalid, but
it must be a fraudulent device either on the part of those
who have influence over the candidate or on the side of
the institute which he joins, and it must be decisive in
causing him to enter.12 A person who is of age and of
sound mind is not easily deceived.
The Code says, furthermore, that if the superior has
been induced to receive a candidate by compulsion, fear
or deceit, the act would be invalid. This may happen
<
» Cc. 8. 12. X. Ill, 31. it Reiffemtuel. III. 16. 32 ff.
10 C. a, C 33, q. 5. 12 Reiffenstuel, II, 14, n. 8 f .
§le
( * -» -. iL» Original from
UNIVERSITY OF WISCONSIN
CANON 542 209
by threats against the superior himself, or against the
religious house (defamation), or financial reverses, etc.
It would be deceit if the candidate pretended to be intel-
ligent, healthy or rich, whilst in reality he is the opposite.
But mere lack of riches or brain — unless the candidate
were too dull for any occupation — would not be suf-
ficient to make the admission invalid. Feigned health
would be sufficient, but a physician's verdict may save
an institute from deceit of this kind. The moral char-
acter is more liable to be made an object of deception.
However, the testimonials required and a sincere state-
ment of the candidate's past life would give some clue to
a wise action on both sides. If the candidate should
nevertheless have succeeded in deceiving the order or
congregation, the latter would be justified in dismissing
him even after profession. The same must be said con-
cerning health,13 if a serious defect was concealed, as
well as of debts, which must be revealed to the religious
superior.
A married person as long as the marriage bond lasts.
Since divorce is not acknowledged by the Church, a di-
vorced husband or wife cannot enter religion. But if
the ecclesiastical authority (episcopal or Roman court)
decides against the existence of a marriage, the parties
are free. As to the sentence of the episcopal court it
must be understood of the final sentence not appealed.
Separation, granted either perpetually or for a time by
the ecclesiastical court, does not dissolve the marriage tie,
and therefore parties thus severed cannot be admitted
to a religious institute. Neither can mutual consent or
permission solve the marriage bond, wherefore the old
practice on this head must be discarded.1* The text is
is Cfr. can. 637. sent of his wife a man could enter
14 Ci. X, III, 33. With ihe con- religion on condition that the wife.
oogl
Original from
UNIVERSITY OF WISCONSIN
210 RELIGIOUS
St
brief, but clear and pointed, and we believe our notes on
it to be correct."
Those who are or have been bound by the bonds of
religious profession. This law excludes all who are or
were members of any other religious community by pro-
fession. Of course, the profession must have been valid,
otherwise he was not bound (obstricius). Hence if a
profession is for any reason declared null and void, the
one who made it may be validly admitted to the novitiate.
Note that any valid profession, whether temporary or
perpetual, simple or solemn, has the effect of binding
one to the religious institute in which it is made. For
the text simply says, without distinction: religious pro-
fession.
Those who are menaced with punishment for a serious
crime, of which they have been or can be accused. A
crime is a public transgression in a matter that touches
the public welfare, and in civil law has a penal sanction
attached to it. Under this heading falls the threefold
category of crimes, vis., treason, felony, and misde-
meanor, although the latter might perhaps be excluded
here, because the text says: grains (serious) crime.
Note that the Code does not limit the term to ecclesi-
astical crimes, but simply says a serious crime of which
one has been or can be accused. The reason is evident,
viz., to protect the decorum and reputation of the reli-
gious life, which should not be a shelter and refuge for
criminals. The wording, " who are amenable to pun-
ishment" (quibus imminet poena), supposes that the
penalty is probable. Hence if one should be declared
if under fifty yean, would also en- 1 E Papi, IT,, Religious Profession,
ter a religious order, or, if beyond tqiS, p. 14: "A married person,
that age, would take trie tow of while his or her partner is alive"—
chastity. doei not render the tent odequately.
jle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 542 211
" not guilty," although he may have committed the crime,
he may be validly received, though not while the trial is
pending.
Every bishop, whether residential or titular, even
though only nominated by the Roman Pontiff. The rea-
son for this prohibition lies in the mystic marriage be-
tween the bishop and his diocese, which also forbids a
transfer from one diocese to another, except by special
permission from the Pope.18 " Designatus" (nominated
or appointed) means promulgated by the Pope in public
consistory. Consequently a bishop-elect, or one merely
postulated or presented for the episcopate, but whose
election is not yet ratified, postulation not admitted, or
presentation not effected by investiture, may freely be
admitted to the religious state. Consecration is not re-
quired to make the prohibition effective.
Clerics ivho, by a disposition of the Holy See, are
bound by oath to consecrate themselves to the service of
their diocese or mission, for the period during which
their oath binds them. This is the impediment that
arises from the title of the service of the Church for
which one is ordained. The oath is taken before one is
ordained subdeacon 1T and contains a special clause pro-
hibiting entrance into religion.
The North American College in Rome is now under
the superintendence of the S. C. Consistorialis, which
watches over the taking of this oath, and grants dispen-
sations from the same.18 If the title of scrvitium
Ecclesiac is changed into another, e. g., that of patrimony
or pension, which may be done by the bishop with the
IS C a, X, I, 7; c. 18, X, III, 31, it Cfr. the Instruction of the S. C
which latter text justly says that if Prop. Kidei, April 27, 1871 (Col-
a weighty or solid reason is ad- lectanea S. C. P. F., II, n. 1360).
vanccil, the petition shall easily be is S. C. Consist., Jan. 7, 1909
granted. {A. Ap. S., I, 148 fl.).
>Ie
I % Original from
UNIVERSITY OF WISCONSIN
212 RELIGIOUS
permission of said sacred Congregation, the obligation
ceases. If one is ordained on any other ecclesiastical
title, for instance, that of patrimony, the oath must not
be taken, and the clergyman is, on that score, free to enter
religion.
Can. 542 then continues as follows:
2.0 The following are illi:itly but validly admitted [to
the novitiate! :
Clerics in sacred orders, without the consent of the
local Ordinary or against his will, if his objection is
based on the serious loss to souls that their vnthdraxval
would entail, when that loss cannot by any means be
otherwise avoided. This is the old practice followed by
the Roman Court, as several constitutions, especially that
of Benedict XIV, "Ex quo" Jan. 14, 1747, prove. The
welfare of souls being the supreme law, it is but natural
that private desires and aspirations must make way for
it. Ordinary politeness, if nothing else, would dictate
that a clergyman who wishes to join a religious order
should manifest his desire to the Ordinary. In case the
latter is persuaded of the necessity of retaining such a
priest in the service of the diocese, he may claim him
even after he has made his profession." But a bishop
is not entitled to keep a priest from entering the religious
state on the plea that he is indebted to the diocese for
his seminary expenses, because a clergyman is not bound
to repay these.10
Those who are burdened with debts which they are
unable to discharge. These were dealt with severely by
Sixtus V, but more leniently by Clement VIII. Our
Code makes their admission merely illicit.21 Note that
l» Benedict XIV, " Ex quo." Dec. I, 1587; Clement VIII. "In
20 Ntlle«, Dtsputationcs Selector, supremo," Jan. 2, i6oj; "Cum ad
p. 55: Piatus M., J. ft, I, 74. regularcm," March 19, 1603.
31 Sixtui V, " Cum de omnibus"
.'le
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 542 213
no one who is heavily indebted is to be admitted to the
religious state, even though the order or congregation he
wishes to enter is willing to pay his debts. Such an
offer would imply alienation, which is not permitted.
Minor debts may be assumed by a religious community.
Heavy debts is a relative term, depending on ones for-
tune. One is heavily indebted if compelled to declare
himself insolvent, or to sell all his property to satisfy
his creditors.
Those who are liable to furnish accounts or are impli-
cated in other secular negotiations from which the insti-
tute may have reason to fear lawsuits and annoyances.
Hence all public officials liable to render accounts, guard-
ians and tutors, trustees and treasurers, administrators
and procurators must first acquit themselves of their ac-
counts before they can be received. This was the mean-
ing of the Constitution of Sixtus V, " Cum de omnibus,"
Dec. 1, 1587.
Persons whose parents, that is, father or mother,
grand-father or grand-mother, are in great necessity and
need their assistance, and parents whose help is necessary
for the support and education of their children. The
Code is explicit as to the degrees of relationship within
which persons are bound to succor their relatives. Par-
ents or grand-parents would be in "great necessity" if
they depended for support solely on the child or grand-
child who wishes to enter the religious state. A parent's
first duty is to support and educate his or her children.
However, if these can be7 cared for equally well by others,
the parent would be permitted to join a religious order,
as the text speaks conditionally.
Those who in religion would be destined for the priest-
hood, from ivhich, however, they are debarred by an ir-
regularity or other canonical impediment. On these im-
>Ie
£ " ^ v -.!,» Original from
UNIVERSITY OF WISCONSIN
2i4 RELIGIOUS
pediments consult can. 984 to 991. Illegitimate children
may be licitly received into a religious order or congre-
gation with solemn vows, because the Code 22 reasserts
the old law 23 that solemn profession removes irregu-
larity and admits one to holy orders, the priesthood in-
cluded, but not to higher orders or dignities. Note that
these impediments affect only members of a clerical in-
stitute who are destined for the priesthood. Hence lay
religious and women's congregations and orders are not
touched by the prohibition at all.
Orientals may not be received into institutes of the
Latin rite without the written permission of the S. Con-
gregation for the Eastern Church. This applies to all
Orientals who belong to the Oriental Rite. For those
who have, with the Holy See's permission, changed to
the Latin rite, there is no impediment as to being re-
ceived into a Latin institute.3* This canon is a logical
corollary of can. 98, which prohibits indiscriminate
mingling of the Oriental and the Latin rites.
the right of admitting novices, etc.
Can. 543
Ius admittendi ad novitiatum et subsequentem pro-
fessionem religiosam tarn temporariam quam perpe-
tuam pertinet ad Superiores maiores cum suffragio
Consilii seu Capituli, secundum peculiares cuiusque
religionis constitutiones.
The right of admitting to the novitiate and to the sub-
sequent profession, whether temporary or perpetual, be-
32 Can. 984. i8. monastery, S. Alesaio, in which
23 Cfr. X. I, 17; 6*. I, 11; c. 14, Latin and Greek monks lived under
X, V, 34; Rcr. Iuris 87, !n 6". one abbot, the former following the
34 On the Aventine Hill in Rome rule of St. Benedict, the latter that
in the Xth century there was a of St. Basil.
jle
f~* -» vrI|rt Original from
UNIVERSITY OF WISCONSIN
CANON 543 215
longs to the higher superiors, who, however, depend on
the vote of the council or chapter, according to the re-
quirements of the constitutions of each particular insti-
tute.
The reception of novices is a matter of great impor-
tance for the upkeep of discipline, and concerns not only
the individual postulant, but the whole community, and
therefore it is but proper that the whole community
should have a share in it. The Code instructs superiors
and convents to cooperate in the matter. In congrega-
tions with a chapter, properly so-called, like the Bene-
dictines, the whole chapter must vote on each case, and
this vote is not only consultive, but decisive. Where
counsellors take the place of the chapter, they must be
consulted and their vote obeyed. In each case the ma-
jority decides, and only when there is a tie, is the su-
perior's vote decisive. For the rest, the constitutions
must determine the manner of receiving novices.
We may add that the Ordinary of the diocese has no
right to admit candidates to the novitiate of papal insti-
tutes, but under the Constitution " Conditac" of Leo
XIII he is entitled to be informed about the candidates
who wish to be received, and those who are to be ad-
mitted to vows; he may also examine them, according to
the customary rules, and if no objection is found, admit
them." This, however, docs not mean that the Ordi-
nary may arbitrarily reject some and command others to
be received.
testimonials
Can. 544
§ 1. In quavis religione omnes adspirantes, antequam
admittantux, exhibere debent testimonium recepti bap-
tismatis et connrmationis.
D
20 1, n. 7; cf. can. 552.
k .J,, Original fro ni
UNIVERSITY OF WISCONSIN
►ogle
216 RELIGIOUS
St
§ 2. Adspirantes viri debent praeterea testimonial es
iitteras exhibere Ordinarii originis ac cuiusque loci in
quo, post expletum decimum quartum aetatis annum,
morati sint ultra annum moraliter continuum, sub-
lato quolibet contrario privilegio.
§ 3- Si agatur de admittendis illis qui in Serninario,
collegio vel alius religionis postulatu aut novitiatu
fuerunt, requiriuitur praeterea litterae testimoniales,
datae pro diversis casibus a rectore Seminarii vel col-
legii, audito Ordinario loci, aut a maiore religionis
Superiore.
§ 4. Pro clericis admittendis, praeter testimonium
ordinationis, sufficiunt litterae testimoniales Ordinari-
orum in quorum dioecesibus post ordinationem ultra
annum moraliter continuum sint commorati, salvo
praescripto § 3.
§ 5. Religioso professo, ad aliam religionem ex
apostolico indulto transeunti, satis est testimonium
Superioris maioris prioris religionis.
§ 6. Praeter haec testimonia a iure requisita, possunt
Superiores quibus ius est adspirantes in religionem
cooptandi, alia quoque exigere, quae ipsis ad nunc
finem necessaria aut opportuna videantur.
§ 7. Mulieres denique ne recipiantur nisi praemissis
accuratis investigationibus circa earum indolem et
mores, firmo praescripto § 3.
§ 1. In every institute, all the aspirants, before being
admitted, must present a certificate of their baptism and
confirmation. The certificate of baptism may be issued
by the pastor or his assistant, but it must be signed in
the name of the pastor and sealed with the parish seal.
The certificate of confirmation may be issued by the
diocesan chancellor but must bear the diocesan seal.
jte
£ * ^ , ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 544 217
a
Until he has presented his certificate of baptism and con-
firmation an aspirant cannot receive the religious habit.3*
§ 2. The male aspirants must, besides, furnish testi-
monial letters from the Ordinary of the place of birth,
and from the Ordinary of whatever other place in which,
after completing their fourteenth year, they have lived
for more than a year, morally continuous, notwithstand-
ing any privilege to the contrary. This rule was incul-
cated by the decree " Romanos Pontifices" of Jan. 25,
1848, which need no longer be read at table, the pro-
mulgation of the Code being sufficient.27 The Code fixes
fourteen years instead of fifteen, as did the decree. The
Ordinary of the place of birth is the one in whose dio-
cese the father of the candidate lived when the candidate
was born. Persons of illegitimate parentage follow the
domicile of the mother. Besides the testimonials of the
bishop of the place of birth, the candidate must have let-
ters from the Ordinaries of all other dioceses in which
he has dwelt for more than one morally continuous year.
The phrase morally continuous indicates habitual resi-
dence. A few weeks' absence from a diocese would not
impair this moral continuity of residence. Much de-
pends on the intention, but if a man comes and goes, but
always returns to the same place, he is morally present
in the diocese in which that place is situated.
§ 3. When there is question of admitting aspirants who
have been in a seminary, a college, or in a postulancy or
novitiate of another institute, testimonial letters, given,
D
Sfl S. C. EE. et RR., May 29. 1857. answer comes, the novitiate may be
n. 3 (Rix7.am, I. c, p. 850). Of begun licitly, — its validity not being
course, these rules arc to be urged in question.
only in norma! times; in times like 2T Cfr. can. 509, 8 2, 1, which
ours it ia often impossible to ob- says those decrees shall be read
tain the necessary information. In which the Holy See will in future
every »uch case the S. C Ret. should prescribe (prescribe!),
be informed of the facts, and if no
gle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
218 RELIGIOUS
according to the circumstances, by the rector of the semi-
nary or college, after consulting the local Ordinary, or
by the higher superior of the institute, are also necessary.
This paragraph enumerates three hypotheses: (a) the
aspirant may have been a student of a seminary or (b)
of a college, or (c) a postulant or novice of a different
religious order. But in neither case is § 2 invalidated,
wherefore the Code says, praeterea, besides, vis,, besides
the testimonials demanded in § 2, supposing, of course,
that the aspirant belongs to the male sex.
Seminary means a theological (grand) seminary, but
does not exclude a preparatory (petit) seminary. The
term college includes academies for young ladies, because
§ 7 includes female religious. Now if a candidate has
been an alumnus of such a seminary or college or acad-
emy, no matter how long, he must present testimonial
letters from the respective rector or president or su-
perioress. Before they issue such testimonial letters,
these officials must consult the Ordinary of the diocese
and obtain his approval. Testimonial letters thus ap-
proved and signed by the Ordinary, or his vicar-general
or chancellor, may serve at the same time as episcopal
testimonials as to residence in the diocese, where such
are required. A nine months' stay in a seminary or col-
lege or academy would in itself not make it necessary for
an aspirant to obtain testimonial letters from the Ordi-
nary of the diocese in which the seminary or college or
academy is situated.28 Sometimes it happens that stu-
dents spend the whole year in such an institution. Ob-
serve that no seminary or college, even though conducted
by exempt religious, is free from the obligation in ques-
tion. The last clause provides that aspirants who have
2fl A three montht* vacation would continuous " yeir lupposed to re-
certainly interrupt the " morally quire such a testimonial.
G| r Original from
°°8IL UNIVERSITY 0FWI5C0NSIN
CANON 544 219
been postulants or notices of some other institute must
also present testimonial letters from the higher superiors
(those mentioned in can. 488, n. 8). Note, first, that
the Ordinary need not be consulted before issuing such
testimonial letters. Secondly, that the term alius reitgi-
onis may be insisted upon. For religio means an organ-
ization different from others. Consequently a change
from one province to another, or from one monastic
congregation to another of the same order would not
require testimonial letters from the religious superior
who had dismissed the postulant or novice. The decree
of the S. C. Rel., Sept. 7, 1909, mentions only dismissal
from " orders and religious congregations/' 20 although
in another decree (April 5, 1910) the same congregation
speaks of a "religious family."80 But the latter decree
is only an interpretation of the former, and therefore,
until an authentic interpretation is given to the contrary,
we cling to the strict wording of the Code.
§ 4. For the admission of clerics, it suffices, besides
the certificate of ordination, to have testimonial letters
from the Ordinaries of the dioceses in which the clerics
have lived for more than one morally continuous year
after ordination, without prejudice to the prescription
of § 3. Ordination is the conferring of higher and
minor orders, and includes the first tonsure," by which
one formally enters the ranks of the clergy. Clerical aspi-
rants to the religious life, therefore, need: (a) a certifi-
cate of ordination, (b) testimonial letters from the Ordi-
naries, as stated in this paragraph and in § 2, if they have
lived in their dioceses for one morally continuous year;
(c) testimonial letters from the superior of a seminary,
college or religious institute, if they had been received
n A. Ap. S., I, 701. 51 Can. 950.
•Qlbid., II. 3$x.
"■
/Google .
£ * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
■
pi
220 RELIGIOUS
as seminarians, students, postulants or novices.82 The
reason why they do not need testimonial letters from the
bishop of their place of birth lies in the fact of their
ordination, which presumes the necessary documents.
§ 5. For a professed religious passing, by virtue of an
apostolic indult, to another institute, the testimony of
the higher superior of the institute which he leaves suf-
fices. One who, having made temporary or perpetual,
simple or solemn profession in one order or congrega-
tion, wishes to be transferred to another, and has ob-
tained a papal indult permitting him to make the change,
needs only the testimony of the superior of the order he
desires to leave. This superior is the general or pro-
vincial, or, if the order or congregation is distributed
into provinces, the local superior. Should the aspirant
have changed previously, only the superior of the insti-
tute to which he last belonged must give his testimonial
letters. But before granting them, the superior should
carefully investigate the character of the applicant.33
§ 6. Besides these testimonials required by law, the
superiors, who have the right of admitting aspirants to
the institute, can exact others also, if it seems to them
necessary or opportune. This rule was no doubt made
in order to provide surer guaranties for the moral and
physical fitness of candidates.
§ 7. Women are not to be received until careful inves-
tigation has been made regarding their character and
conduct, with due regard to § 3.
We will add a decision of the Roman Court S1 concern-
ing the necessity of testimonial letters : for they are neces-
sary only to make the profession licit, but not to make it
83 S. C. EE. et RR., Nov. 5, 1853 ad 2: May 39, 1857. ad 3 (Bizzarri.
(Bizzarri, /. c, p. 849). /, c„ p. 849 f.).
M S. C. EE. ct RR., Not. 3, 1853, »* S. C. aupcr Statu Rcgul., May
i, 1851 (Bizzarri, /. c, p. 841. n. 9).
jle
k ,1,., Original fro iu
UNIVERSITY OF WISCONSIN
CANON 545 221
valid. The same view is taken by our Code, which no-
where, neither in can. 555 nor in can. 572, makes testi-
monial letters a condition for the validity of the novitiate
or profession. But superiors are gravely obliged in con-
science to see that such letters are furnished when re-
quired by law."
testimonials — continued
Can. 545
§ 1. Qui litteras testimonials ex praescripto iuris
dare debent, eas non ipsis adspirantibus, sed Superiori-
bus religiosis dent gratuito intra trimestre spatium ab
arum requisitione, sigillo clausas et, si agatur de
illis qui in Seminario, collegio vel alius religionis po-
stulatu aut novitiatu fuerint, a Superiore iuramento
firmatas,
§ 2. Si ob graves rationes iudicaverint se eis respon-
ded non posse, causas Apostolicae Sedi intra idem
tempus exponant.
§3. Si reposuerint adspirantem satis non esse sibi
cognitum, per aliam accuratam investigationem ac fide
dignam relationem Superior religiosus suppieat; si
vero nil reposuerint, Superior requirens de non recepta
responsione Sanctam Sedem certiorem reddat.
§4. In suis litteris testimonialibus, postquam dili-
gentem investigationem, etiarn per secretas notitias, in-
stituerint, referre debent, graviter eorum conscientia
onerata super veritate expositorum, de adspirantis
natalibus, moribus, ingenio, vita, fama, conditione, sci-
entia; sitne inquisitus, aliqua censura, irregularitate
aut alio canonico impedimento irretitus, num propria
ac " Gravutsimr onerata conscien- states that careless superiors may
tut eorum"; cfr. can. 24". which be deprived of their office.
( %r\nnl*> Original from
jr^iOOglL UNIVERSITY OF WISCONSIN
■
222 RELIGIOUS
familia eius auxilio indigeat, et tandem, si agatur de
illis qui in Scminario, collegio, aut alius rcligionis po-
stulatu aut novitiatu fuerint, quanarn de causa dimissi
sint vel sponte discesserint.
§ i. Those who must, according to the law, give testi-
monial letters, should not consign them to the aspirants,
but to the religious superiors, and this gratuitously within
three months from the date of request, closed and sealed,
and if the aspirants are persons who have been in a semi-
nary, a college, postulancy or novitiate of another insti-
tute, the testimonial letters must be signed under oath by
the superior.
As to the testimonial letters, they may be private, with-
out official character, but they must be sealed. Concern-
ing the superior's oath, it must be given in writing, for
instance: "In witness whereof I invoke the name of
Almighty God and hereto set my hand " (and seal, if the
writer has an official seal).
According to § 2 and § 3, if they who are to give
testimonial letters feel that they cannot comply with the
request for them, they must make known the reasons
to the Holy See (S. C. Rel.) within the time stated, 1. e..
three months. If they reply that the aspirant is not suf-
ficiently known to them, the religious superior shall sup-
ply the deficiency by making careful inquiries of sources
worthy of credence; but if they give no reply, the supe-
rior who made the request must inform the Holy See
that he has received no response. Of course, this legis-
lation is intended for normal times, when mail travels
safely. Other reports may be made by those who knew
the aspirants, — parents, relatives, pastors, teachers,
friends, schoolmates, etc. The decree from which our
text is chiefly taken admonishes the superior to keep the
>Ie
j , Original fro m
UNIVERSITY OF WISCONSIN
CANON 546 223
candidate in the convent for at least three months and
test him carefully.30
§ 4. In their testimonial letters, the Ordinaries and
superiors, after having made careful investigation, even
by secret enquiries, must give information, the accuracy
of which they are under grave obligation in conscience to
control, on the birth, conduct, character, life, reputation,
condition (social status), and learning of the aspirant;
whether he be suspect, or under any censure, irregularity,
or any other canonical impediment ; whether his family
needs his help ; and, finally, when there is question of
persons who have been in a seminary, a college, or in a
postulancy or novitiate of another institute, the reasons
for their dismissal or spontaneous departure. This
moral passport needs no further explanation. The term
" inquisitus " may mean, " demanded in court," either
civil or ecclesiastical. Tliis seems to be confirmed by
can. 542, § 1, but the official English translation renders
it by "suspect," as given above.
Can. 546
Omnes qui praedictas informationes recepcrint,
stricta obligatione tenentur secrcti servandi circa no-
titias habitas et personas quae illas tradiderunt.
All those who have received the aforesaid information
are strictly obliged to keep secret not only the informa-
tion itself, but also the names of the persons who sup-
plied it.
l« S. C. super Statu Refill, May I, 1S51 (Biziarri, /. c, p. 840).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
224 RELIGIOUS
DOWRY
Can. 547
§ 1. In monasteries monialium postulans affcrat
dotem in constitutionibus statutam aut iegitima con-
suetudine determinatam.
§ a. Haec dos ante susccptionem habitus monasterio
tradatur aut saltern eius traditio tuta reddatur forma
hire civili valida.
§ 3. In rcligionibus votorum simplicium, quod ad
religiosarum dotem pertinet, standum constitutionibus.
§ 4. Dos praescripta condonari ex toto vcl ex parte
nequit sine indulto Sanctae Sedis, si agatur dc religione
iu ris pontincii ; sine venia Ordinarii loci, si de religione
iuris dioccesani.
In monasteries of nuns, the postulant shall provide the
dowry fixed by the constitutions or determined by lawful
custom. This dowry must be given to the monastery
before the reception of the habit, or at least its payment
guaranteed in a manner recognized by the civil law.
In institutes with simple vows, the constitutions must
be obeyed with regard to the dowries of religious women.
The prescribed dowry cannot be condoned either totally
or partially, without a papal indult in the case of insti-
tutes approved by the Holy See, in pontifical, or without
the consent of the local Ordinary in the case of diocesan
institutes.
Dowry means a security in money or its equivalent for
the purpose of maintaining a religious institute. Hence
it is not a donation, nor an offering to gain entrance,"
which would be simony, but a permissible and irrepre-
hensible mode of guaranteeing the necessary support.
■T Thii waa the opinion of the Bachofen, Compendium Juris R*t-»
Febronian canonist Van Eybel; cfr. p. 109.
>Ie
J ^ Original from
UNIVERSITY OF WISCONSIN
CANON 548 225
Neither must it be confounded with legacies, bequests,
hereditary acquisition, patrimony, or pension. If a mon-
astery of Sisters has no special law or' rule concerning
dowries — which should not be less than $100 — the
following canons do not concern it. The amount of the
dowry should be established in the constitutions, and
any condonation, either total or partial, requires the con-
sent of the legitimate authority (§4). The amount fixed
by the constitutions may not be raised without the per-
mission of the Holy See." The dowry must be secured
in a form that is valid according to the laws of the State.
A notary public and witnesses are therefore required.
Any secure source of income, either money or title-deeds,
government or State bonds, bank deposits, shares in
sound stock companies, are admissible. But the dowry
itself or guarantee thereof must be delivered before the
candidate receives the habit.
Can. 548
Dos monasterio seu religioni irrevocabiliter acqui-
ritur per obitum religiosac, licet haec nonnisi vota
temporaria nuncupaverit.
The dowry is irrevocably acquired by the monastery
or the institute on the death of the religious, even though
she had made profession of only temporary vows. For
as long as a Sister lives, the monastery is the sole trustee
or administrator of her dowry.
Can. 549
Post primam religiosac professionem dos in tutis,
licitis ac fructiferis nominibus collocetur ab Antistita
88 The reason is thai it would be Holy See, which had approved the
alienation, which is prohibited, and constitutions,
derogate from the authority of the
jle
j , Original from
UNIVERSITY OF WISCONSIN
226 RELIGIOUS
cum suo Consilio, de consensu Ordinarii loci et Superi-
or is regularis, si domus ab hoc dependeat; omnino
autem prohibetur earn quoquo rnodo ante religiosae
obitum impendi, ne ad aedincandam quidem domum
aut ad aes alienum exstinguendum.
■
After the first profession of the religious, the supe-
rioress with her council, and with the consent of the
local Ordinary and the regular superior, if the house
be dependent on regulars, must place the dowry in a safe,
lawful and productive investment; but it is strictly for-
bidden that, before the death of the religious, the dowry
be expended for any purpose, even for the building of a
religious house or the payment of debts.
Q
For any alienation of the dowry an apostolic indult is
required. However, the interest accruing from the
dowry may be used for any purpose.
c
I Can. 550
§ 1. Dotes caute et integre administrentur apud
monasterium vel domum habitualis residentiae su-
prcmae Moderatricis aut Antistitae provincialis.
§ 2. Ordinarii locorum conservandis religiosarum
dotibus sedulo invigilent ; et praesertim in sacra visita-
tione de eisdem rationem exigant.
3
The dowries must be carefully and integrally admin-
istered at the monastery or house of habitual residence
of the Mother General or Mother Provincial.
The local Ordinaries must diligently see that the
dowries of the religious are conserved; and they must
demand an exact account thereof, especially at the ca-
nonical visitation.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 551 AND 552 227
Can. 551
§ 1. Dos religiosae professae sive votorum sollem-
nium sive votorum simplicium quavis de causa disce-
dcnti integra rcstitucnda est sine fructibus iam maturis.
§ 2. Si vero religiosa professa ad aliam religionem
ex apostolico indulto transeat, durante novitiatu,
frucius, salvo praescripto can, 570, § 1 ; cmissa vero
nova professions dos ipsa huic religioni debentur; si
ad aliud eiusdem Ordinis monasterium, huic debctur
ipsa dos a die transitus.
If, from whatever cause, a professed religious with
either solemn or simple vows leaves the institute, her
dowry must be returned to her intact, but not the interest
already derived therefrom.
But if, by virtue of an apostolic indult, the professed
religious joins another institute, the interest on the
dowry, during her new novitiate, without prejudice to
the prescription of can. 570, § 1, and, after the new pro-
fession, the dowry itself must be given to the latter insti-
tute ; if the religious passes to another monastery of the
same order, the dowry belongs to it from the day the
change takes place.
This canon refers to can. 570, § I, concerning a Sister
changing from one religious institute to another, which
Q
"■
allows a certain alimony for the postulancy and novitiate.
exploratio voluntatis, or examination
Can. 552
§ 1. Rcligiosarum etiam exemptarum Antistita debet
Ordinarium loci, duobus saltern mensibus ante, cer-
tiorem facere de proxima admissione ad novitiatum et
ad professionem turn temporariam turn perpetuam
sive sollemnem sive simplicem.
1 Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
228 RELIGIOUS
§ 2. Ordinarius loci vel, eo absente aut impedito,
sacerdos ab eodcrn deputatue, adspirantis voluntatem,
saltern triginta dicbus ante novitiatum et ante profes-
sionem, ut supra, diligenter et gratuito exploret, non
tamen clausuram ingrediens, num ea coacta seductave
sit, an sciat quid agat ; et, si de pia eius ac libera vo-
luntate plane constiterit, tunc adspirans poterit ad
novitiatum vel novitia ad professionem admitti.
The superioress even of exempt religious must inform
the local Ordinary, at least two months in advance, of
the approaching admission to the novitiate and to the
profession both of temporary and perpetual or of solemn
or simple vows. Hence the bishop must be informed
three times, vis., before the novitiate, before temporary
profession, and before perpetual profession.
The local Ordinary, or, if he is absent or otherwise
impeded, a priest delegated by him, must, at least thirty
days before the admission to the novitiate and to pro-
fession, carefully examine the disposition of the aspirant,
and this gratuitously, without, however, entering the en-
closure. He must inform himself as to whether she has
been forced or beguiled, and if she understands the im-
port of what she is doing, the step she is about to take;
and if he is fully satisfied regarding her pious intention
and freedom of action, then the aspirant may be ad-
mitted to the novitiate, or if already a novice, to pro-
fession. The examination must be made free of charge,
and outside the enclosure, at least if the convent has
papal enclosure. This is the safeguard against physical
or moral compulsion erected by the Council of Trent 8B
and the Roman Congregations.
ao Se«i. 35, e. 17, d« reg.
*>
►ogle
£ ~ ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 553 AND 554 229
ARTICLE II
THE TRAINING OF NOVICES
S
Can. 553
Novitiatus incipit susceptione habitus, vel alio modo
in constitutionibus praescripto.
The novitiate begins with the reception of the habit,
or in any other manner prescribed by the constitutions.
It was not always customary to doff the secular dress and
don a special religious habit when one became H con-
verted." At least St. Benedict's Rule (c. 58) would
seem to teach us differently. A synod of Aix-la-Chapelle
(816-817) enjoined that the secular dress should not be
changed until one had promised obedience. However,
Benedict of Aniane (482) assumed the monastic habit
as a novice and the Clunians tonsured their novices and
clothed them with the monk's habit, except the cowl
(cuculla) ; and ever since the IXth and Xth centuries
the custom of investing novices with a religious hahit be-
came almost universal.*0 Yet exceptions were and are
made, and hence the Code refers to the constitutions of
each institute. What is necessary is that the novice as
well as the community know the exact date of the begin-
ning of the novitiate.
ERECTION OF THE NOVITIATE
e
CI
Can. 554
§ i. Erigatur domus novitiatus ad normam constitu-
tionum; si vero agatur de religione iuris pontificii, ad
40 Cfr. Mignc, 66, 837.
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gle
230 RELIGIOUS
cam crigendam necessaria est liccntia Sedis Apostoli-
cac.
§ 2. Plurcs in cadcm provincia novitiatus domus, si
religio in provincias divisa sit, designari nequcunt, nisi
gravi de causa ct cum special! apostolico indulto.
§ 3. Superiores in novitiatus ac studiorum domo nc
collocent, nisi rcligiosos qui sint ad exemplum rcgularis
obscrvantiae studio.
The novitiate house shall be erected in accordance with
the prescriptions of the constitutions ; but in case of in-
stitutes approved by the Apostolic See the permission
of the latter is necessary for the erection. If the insti-
tute is divided into provinces, more than one novitiate
must not be erected in the same province without a
grave reason and a special apostolic indult. Superiors
shall have in the novitiate houses and houses of study
only religious who are exemplary in their zeal for regu-
lar observance. A novitiate may be erected by diocesan
institutes with the permission of the bishop, according to
their own constitutions. But any order or congregation
which has received the decree of recognition (decretum
laudis), or has been formally approved by Rome, must
have permission from the S. C. of Religious. Note that
permission for founding a religious house does not in-
clude permission to erect a novitiate, unless express men-
tion was made of it in the petition.
§ 2 emphasizes a law which was first given and ob-
served in Italy, but is now general, at least in a certain
measure. Clement VIII had ruled that only one noviti-
ate, designated for each province by the Apostolic See,
could receive novices validly.41 The Code is not so strict.
*l"Regularu disciflinar," March 12, 1596; " Sanctissimus," June 30,
1599. I U
>ogle
£ " -» v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 555 231
■
a
It merely enjoins that each province should have but one
novitiate. This rule binds only those religious institutes
which are divided into provinces. The term province
must be interpreted strictly. It does not mean a con-
gregation, but a local or national organization. One
novitiate for each province will, as a rule, accommodate
and be adequate to the training of all novices (cfr. can.
501, § 3)- If, however, the number is too large, or lin-
guistic or other difficulties render it advisable to have
more than one novitiate, a special indult is required —
special, because not implied in the one given according to
§ 1 of this canon by the Apostolic See.
01
requisites for the validity of the novitiate
Can. 555
a
§ i. Praeter alia quae in can. 542 ad novitiatus vali-
ditatem enumerantur, novitiatus ut valeat, peragi
debet:
i.° Post completum decimum quintum saltern
aetatis annum ;
a.0 Per annum integrum et continuum;
3.0 In domo novitiatus.
§ a. Si longius tempus in constitutionibus pro novi-
tiatu praescribatur, illud ad validitatem professionis
non requiritur, nisi in eisdem constitutionibus aliud
expresse dicatur.
§ 1. Besides the other conditions enumerated in can.
542 for the validity of the novitiate it is further required
that the novitiate be made :
i.° After the aspirant has completed at least the fif-
teenth year ;
2.° For an entire and uninterrupted year;
3.0 In the novitiate house.
jle
j % GrigEnalfroni
UNIVERSITY OF WISCONSIN
232 RELIGIOUS
§ 2. If the constitutions prescribe more than one year
for the novitiate, the extra time is not required for the
validity of the profession, unless the constitutions ex-
pressly declare otherwise.
The conditions enumerated under can. 542, § 1, have
been dealt with. The other three conditions are plain
enough. We need only add that the age is the same for
both sexes, viz., the fifteenth year, fully completed. A
full year comprises 365 days, even though the novitiate
be begun or finished in a leap-year. But the severity of
some older canonists, who insisted upon moments, is out
of place under the new Code. Thus if one commences
his novitiate on the morning of June 21st, 1919, he may
make his profession on June 21st, 1920, at any time of
the day. But if he commenced the novitiate at noon or
in the evening of June 21st, he could not validly make
his profession until June 22, 1920 (cfr. can. 34). The
term continuum here means physically and morally un-
interrupted, of which more shall be said in the following
canon. The novitiate house is the special building or
space reserved for novices. Where only a certain space
or room or department is set aside for the novitiate, the
whole house is a quasi-novitiate. Novitiate here simply
means the house or place approved by the Apostolic See
for the training of novices, though it is evident that the
Holy See wishes to see a special novitiate house erected
for every province and congregation. Thus the English
Benedictine Congregation has a novitiate house, and
Leo XIII fully approved its rule.42 Proper training and
uniformity of discipline can be achieved only where there
is one novitiate.
§ 2 allows religious institutes to insert in their consti-
tutions a clause decreeing a longer novitiate, but they
41" Diu quidem," June .29, 1899.
.'Ie
/""* -» ^ iL» Original ftocn
UNIVERSITY OF WISCONSIN
-
-'
■-""-
CANON 556 233
must explicitly state whether this clause touches the
validity of the novitiate. If they merely say, " the noviti-
ate lasts two years * without making it a condition of
validity, one year is sufficient.
INTERRUPTION OF THE NWITIATE
T
■
Can. 556
§ x. Novitiatus interrumpitur, ita ut denuo incipien-
dus ac perficiendus sit, si novitius, a Superiore dirnis-
sus, c domo exierit, aut doraum sine illius licentia non
reversurus deseruerit, aut extra domum, etsi rever-
surus, ultra triginta dies sive continuos sive non conti-
nues permanserit quacunque ex causa, etiam de Superi-
orum licentia.
§ 2. Si novitius ultra quindecim, sed non ultra tri-
ginta dies etiam non continuos, de Superiorum licentia
vel vi coactus extra domus septa permanserit sub
Superioris obedientia, ad validitatem novitiatus
necesse et satis est dies hoc modo transactos supplere ;
si non ultra quindecim dies, supplementum potest a
Superioribus praescribi, sed non est ad validitatem
necessarium.
§ 3. Superiores licentiam manendi extra septa novi-
tiatus, nisi iusta et gravi de causa, ne impertiant.
§ 4. Si novitius a Superioribus in aliam novitiatus
domum eiusdem religionis transferatur, novitiatus non
interrumpitur.
The novitiate is interrupted, and must be recom-
menced and completed: (a) if the novice is sent away
by the superior and leaves the house, or (b) if, without
the permission of the superior, he leaves the house with
the intention of not returning, or (c) if, even with the
superior's permission from whatever motive, he has re-
Gi Original from
UOglt UNIVERSITY 0FWI5C0NSIN
234 RELIGIOUS
mained for more than thirty days, whether continuously
or not, outside the house, although he may return to it.
Here are three distinct cases. The first is dismissal
by the superior, followed by the departure of the novice.
If the dismissal would be revoked before the novice had
left the house or premises, there would be no interrup-
tion.44 But there is interruption as soon as the dismissed
novice has left the house, even though the dismissal is
made upon false accusations, and the novice be reinstated.
For our text cannot be otherwise construed, although
some authors " deny interruption in that case. A some-
what different aspect is offered by this case: A novice
is dismissed and leaves the house after having spent a
full and continuous year in the novitiate, and later is re-
admitted ; what then ? We believe with solid writers that
there is no interruption of the novitiate in this case, be-
cause the novitiate had already ended.
The case mentioned under (b) supposes two condi-
tions: leave without permission and the intention of not
returning. Whenever these two conditions are present,
there is an interruption, no matter whether the novice
leaves with or without the habit, or for a long or a short
time. Neither is the nature of the action to be consid-
ered, as Suarez says ; " for such a novice is looked upon
as a deserter (descruerit), and desertion requires no
specified length of time, if the will is there.
The last (c) case supposes only one condition, vie.;
absence protracted for more than thirty days, even though
with the permission of the superior and for a just reason.
Hence if a novice would live on a farm or in a summer
resort ten days in one month, ten days in another month,
45 Piitus M.. /. c. I, 99. 4i De ReL. tract. VII, I. V, c. 15,
44 Ferrari. De Statu Religiose, n. 6 (ed. Pari*. Vol. 15. P- 368 £.).
1906, p. 78.
Go >gle
j , Original fro m
UNIVERSITY OF WISCONSIN
CANON 556 235
and tea days, say, with a specialist (physician), the
novitiate would be interrupted and would have to be re-
commenced. The same holds true if a novice would
spend three days each month in a physician's office, away
from the novitiate. But if he would spend fifty-nine
half-days away from the novitiate house, he would not
interrupt his novitiate, because the law by day under-
stands a space of twenty-four hours.4*
Note the phrase: in the novitiate house. If a person
would spend, say, thirty-one days in a religious house
which is not designated as the novitiate house, his noviti-
ate would be interrupted. Living on a farm away from
the house where the novitiate is established, for more
than thirty days, would also involve an interruption.
§2. If a novice, with the permission of superiors or
constrained by force, has passed more than fifteen but
not more than thirty days, even interruptedly, outside the
precincts (septa) of the house, under obedience of the
superior, it is necessary and sufficient for the validity of
the novitiate that he supply the number of days so passed
outside; if for a period not exceeding fifteen days, the
supplementing for this period can be prescribed by the
superiors *6 but it is not necessary for validity. This
text is a repetition of two decrees of the S. C. Relig.,
May 3, 191 4, the latter of which (Paris.) also explains
what is meant by " vi coactus." It is military service
which one had to render.*7 The decision is remarkable
as it concerns a novice who was forced to serve as a
soldier in the barracks of a city, we suppose Paris, where
the religious have a novitiate. The soldier spent all the
time he could spare from military service in the novitiate
house and obeyed the orders of the religious superior.
But the S. Congregation justly held that the time thus
«« Can. a*, « U 4* A Ap. S„ VI, »9 f.
jle
v ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
■
236 RELIGIOUS
divided between military service and the duties of the
novitiate should not be reckoned as fulfilling the require-
ments for the novitiate. Compelled by force may also
refer to a contagious disease, for instance, smallpox,
cholera, etc., which require a quarantine in a house espe-
cially destined for such purposes.48 Therefore if this
separation would not last more than thirty days, the
novitiate would not be interrupted.
§ 3. Superiors must not grant novices permission to
remain outside the precincts of the novitiate except for a
just and grave reason. No superior can grant such a per-
mission for more than thirty days without involving an
interruption of the novitiate.
§4. If the novice be transferred by the superiors to
another novitiate of the same institute, the novitiate is
not interrupted.
Can. 557
Integer novitiatvs peragatur in habitu quern consti-
tutiones pro novitiis praescribunt, nisi speciales loco-
rum circumstantiae aliud exigant.
The full year of the novitiate must be spent in the
habit prescribed for novices by the constitution, unless
special local circumstances determine otherwise. Non-
observance of this law does not invalidate the novitiate.
Local custom, especially in missionary countries, may
justify not wearing the habit, at least in public. In the
U. S. novices do not usually appear in public in their
religious habit. This custom, the Code says, may be
respected.
a
48 The same would have to be evidence. Vellow fever, they aay,
said of mental aberration lasdng is not really contagious, but car-
more than thirty days, although oc- ried chiefly by mosmiitos. against
casional lucid intervals might be in which a bar might be needed.
jle
fcJ-,|rt Original from
UNIVERSITY OF WISCONSIN
N
■
CANON 559 237
Can. 558
In religionibus in quibus duae sunt sodalium clas-
ses, novitiatus pro altera ciasse peractus, pro altera
non valet.
In institutes whose members are divided into two
classes, the novitiate made in one class does not avail
for the other. Thus the novitiate made by lay Brothers
or Sisters is not valid for clerical members or choir nuns
if the htter constitute a class for themselves.
the master of novices and his assistant
Can. 559
§ 1. Novitiorurn institution! praeficiendus est Ma-
gister, qui sit annos natus quinque saltern ac triginta,
decern saltern ab annis a prima professione professus,
prudentia, caritate, pietate, religionis observantia con-
spicuus et, si de clericali religione agatur, in sacerdotio
constitutus.
§ 2. Si ob novitiorurn numerum vel aliam iustam
causam expedire visum fuerit, Magistro novitiorurn
adiungatur socius, eidem immediate subiectus in iis
quae ad novitiatus regimen spectant, annos natus sal-
tern triginta, quinque saltern ab annis a prima profes-
sione professus, cum ceteris dotibus necesariis et op-
portunis.
§ 3. Uterque ab omnibus ofnciis oneribusque vacare
debet, quae novitiorurn curam et regimen impedire
valeant.
§ 1. The training of the novices must be entrusted to
a master who shall be at least thirty-five years of age,
and professed for at least ten years from the date of his
first profession, and be distinguished for prudence, char-
( i^t\nli- Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
■
238 RELIGIOUS
ity, piety, and fidelity to regular observance, and if the
institute be clerical, he must be a priest.
§ 2. A companion or assistant should be given to him,
if the number of novices or other reasons require it.
This assistant shall be immediately subject to the master
in all matters pertaining to the government of the noviti-
ate, and must be at least thirty years of age, and pro-
fessed five years from the date of his first profession and
have the other necessary and suitable qualities.
§3. Both (master and assistant) should be free from
all other occupations which could hinder them in the care
and government of the novices.
Can. 560
Magister novitiorum eiusque socius eligantur ad
norma rn constitutionum, et si quod in his tempus ad
durationem muneris praescriptum sit, eo durante, ne
removeantur sine iusta gravique causa ; sed iidem r ur-
sus eligi possunt.
The master of novices and his assistant shall be se-
lected according to the direction of the constitutions, and,
if these prescribe a fixed term of office, they must not
within that time be removed from their charge without a
just and grave cause; besides, they may be reappointed.
Can. 561
§ 1. Uni Magistro ius est et officium consulendi
novitiorum institutioni, ad ipsumque unum novitiatus
regimen spectat, ita ut nemini liceat hisce se, quovis
colore, immiscere, exceptis Superioribus quibus id a
constitutionibus permittitur ac Visitatoribus ; ad di-
sciplinam vero universae domus quod attinet, Magis-
ter, perinde ac novitii, Superiori est obnoxius.
GoogI
Original from
UNIVERSITY OF WISCONSIN
CANON 562-564 239
§ a. Novitius potcstati Magistri ac Superiorum re-
ligionis subcst eisque obedire tenctur.
The master of novices alone has the right and the
duty of providing for the proper training of the novices,
he alone is charged with the direction of the novitiate,
so that none, under whatever pretext, may interfere in
these matters, except the superiors, who are permitted to
do so by the constitutions, and the visitators; as to the
general discipline of the house, the master, together with
the novices, is subject to the superior.
Can. 562
Gravi obligatione tenetur Magister novitiorurn om-
nem adhibendi diligentiam ut sui alumni in religiosa
disciplina, secundum constitutiones, sedulo exercean-
tur, ad normam can. 565.
The master is under grave obligation to employ all
diligence in assiduously forming his novices in the disci-
pline of the religious life, conformably to the constitu-
tions and to the terms of can. 565.
p
Can. 563
Intra annum novitiatus Magister, ad normam con-
stitutionum, de agendi ratione singulorum alumnorum
relationem Capitulo vel Superiori maiori exhibeat.
During the course of the year of novitiate, the master
of novices, conformably to the constitutions, must pre-
sent to the chapter or the higher superior a report con-
cerning the conduct of each of the novices.
Can. 564
§ 1. Novitiatus ab ea parte domus, in qua degunt
professi, sit, quantum fieri potest, segregatus ita ut.
oogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
240 RELIGIOUS
sine special! causa ac Superioris vel Magistri liceatia,
novitii nullam habeant communicationem cum profes-
sis, neque hi cum novitiis.
§ 2. Conversis autem novitiis locus separatus adsi-
gnetur.
-
The novitiate shall be, as far as possible, separated
from that part of the house inhabited by the professed
religious, so that, without a special cause and the per-
mission of the superior or of the master, the novices may
not have communication with the professed religious, nor
these latter with the novices. For the lay-brother novices
a special place must be set apart. Futile reasons are
sometimes advanced to abolish this pedagogically sound
law.
Can. 565
■
§ 1. Annus novitiatus debet sub disciplina Magistri
hoc habere propositum, ut informetur alumni animus
studio regulae et constitutionum, piis meditationibus
assiduaque prece, iis perdiscendis quae ad vota et ad
virtutes pertinent, exercitationibus opportunis ad vi-
tiorum scmina radicitus exstirpanda, ad compescendos
animi motus, ad virtutes acquirendas.
§ 2. Conversi praeterea diligenter in Christiana do-
ctrina instituantur, speciali collatione ad eos habita
semel saltern in hebdomada.
§ 3. Anno novitiatus ne destinentur novitii concio-
nibus habendis aut audiendis confessionibus aut exte-
rioribus religionis muniis, neve dedita opera studiis
vacent litterarum, scientiarum aut artium; conversi
autem in ipsa religiosa domo eatenus tantum fungi
possunt omciis fratrum conversorum (non tamen uti
primarii officiates) , quatenus ab exercitiis novitiatus
pro ipsis constitutis non praepediantur.
►ogle
£ " ^ ^ -Ar* Original from
UNIVERSITY OF WISCONSIN
CANON 566 241
§ 1. The year of novitiate under the direction of the
master must have for its object the forming of the mind
of the novice by means of the study of the rule and con-
stitutions, by pious meditation and assiduous prayer, by
instruction on those matters which pertain to the vows
and virtues, by suitable exercises in rooting out the germs
of vice, in regulating the motions of the soul, in acquiring
virtues.
§ 2. The lay-brother novices should be carefully in-
structed in Christian doctrine, for which purpose a spe-
cial conference should be given to them at least once a
week.
§ 3. During the year of novitiate, the novices must not
be employed in preaching or hearing confessions, or in
the external charges of the institute, or even in the study
of letters, the sciences or arts; the lay-brother novices,
however, may perform within the religious house itself
all the duties of lay brothers (but in a subordinate ca-
pacity), in so far only as such duties do not prevent them
from taking part in the exercises prescribed for them
in the novitiate. Work may be prayer, indeed ; but man-
ual labor, if it takes the place of the prayer and religious
exercises prescribed for novices, is not a substitute for
holy practices, nor an incentive to religious fervor.
Can. 566
§ 1. Circa sacerdotem a confessionibus in mulierum
novitiatibus serventur praescripta can. 520-527.
§ 2. In religionibus virorum, salvo praescripto can.
519:
i.° Pro novitiorum numero unus vel plures habean-
tur ordinarii confessarii, salvo praescripto can. 891;
2.0 Confessarii ordinarii, si agatur de religione cleri-
cal^ in ipsa novitiatus domo commorentur ; si de laical i,
3
• 0
ogle
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
242 RELIGIOUS
saltern frequenter ad domum novitiatus accedant, novi-
tiorum confessiones audituri;
3.0 Praeter confessarios ordinariost designentur
aliqui confessarii, quos novitii in casibus particulanbus
adire libere possint, nee Magister aegre id se ferre
demonstret ;
4. : Quater saltern in anno detur novitiis confessarius
extraordinarius, ad quem omnes accedant saltern bene-
dictionem recepturi.
§ I. As regards the confessor for the novitiates of
women, the prescriptions of can. 520-527 must be ob-
observed.
§ 2, For the institutes of men, without prejudice to
can. 519:
i.° There shall be, according to the number of novices,
one or more ordinary confessors ; but the religious supe-
rior and the master of novices are allowed to hear the
confessions of the novices for a grave reason in special
cases, if the novices ask them to do so of their own accord
(can. 891).
2.0 In clerical institutes the ordinary confessors for
the novitiate shall live in the novitiate house itself ; while
in lay institutes they shall at least frequently visit the
novitiate house to hear the confessions of the novices.
3.0 Besides the ordinary confessors other confessors
must be designated, to whom in particular cases the
novices may freely go ; nor may the master of novices
manifest any displeasure at this.
4.0 At least four times a year the novices are to be
given an extraordinary confessor, to whom all are to pre-
sent themselves at least to receive his blessing.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
D
"■
CANON 567 243
Can. 567
§ 1. Novitii privileges omnibus ac spiritualibus
gratiis religioni concessis gaudent; et si morte prae-
veniantur, ad eadem suffragia ius habent, quae pro
professis praescripta sunt.
§ 2. Ad ordines, durante novitiatu, ne promovcantur.
§ 1. The novices enjoy all the privileges and spiritual
favors granted to the institute ; and if they die during the
novitiate, they have a right to the same suffrages as arc
prescribed for the professed members.
§ 2. They must not be promoted to orders during the
novitiate.
Concerning the privileges of novices, it has always been
maintained that they share all of them, as far as they are
capable, because they go by the name of religious as to
favors. Therefore theirs are the privileges of the forum
and canonis, and immunities, the privilege of exemption
if their institute is exempt, the privileges of dispensation,
commutation of vows, and absolution. As to spiritual
favors they can gain all the indulgences granted to their
institute, as far as they are capable, and no restriction
is made in favor of professed members. Another spir-
itual right they enjoy is that to have offered for them,
if they die, the prayers for the repose of the soul which,
the Code says, must be offered for novices as well as
professed members. We confess that this clause ap-
peared new to us, and no quotation is given in support
of it in Cardinal Gasparri's notes. But it is a logical
interpretation of the general rule that novices partake of
the favors of religious proper. However, the distinction
between persons in sacred orders and in minor orders,
between lay-brothers and clerical members, is certainly
to be retained. Hence if a definite number of masses
oogle
i*~* -» ^ -J,-. Original fro rn
UNIVERSITY OF WISCONSIN
244 RELIGIOUS
a
and communions are prescribed for each class, the novices
are entitled to the same according to the class to which
they belong.
A privilege not especially mentioned here, but certainly
still in force, which therefore may safely be made use of,
is that granted to the Dominicans by Pius V, and six
years ago extended to all novices. This privilege per-
mits novices to make profession in case of sickness which
according to the judgment of the physician may be con-
sidered danger of death. Now this privilege may be
made use of, provided (i) the novitiate was duly com-
menced and the novice admitted by the actual superior
of the novitiate ; (2) that the vows be pronounced accord-
ing to the usual formula and without addition as to the
length of time or character of the vows, whether tempo-
rary or perpetual.
The effects of that profession arc merely to gain the
plenary indulgence in the form of a jubilee indulgence,
but no other juridical effects follow. Hence the religious
institute obtains no material right as to said novice's
property or other rights; and the novice may afterwards
freely leave the institute or be dismissed therefrom, and
must renew the profession after the time of the novitiate
has expired/
D
'■-.
4B&
renunciation of property
Can. 568
In novitiatus decursu, si suis beneBciis vel bonis
quovis modo novitius renuntiaverit cademve obli-
gaverit, renuntiatio vel obligatio non solum illicita,
sed ipso iure irrita est.
« Clem. VIII "Cum ad regit- 4Da S. C. Rcl., Sept. 10, 191a
larrm" March 19, 1603. {A. Ap., S., V., 389 I.).
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 568 245
The Council of Trent00 strictly forbade the giving
away of property by novices under pain of nullity. The
reason for this enactment is to guarantee the freedom of
the novice, so that no obstacle may detain him if he
wishes to return to the world. Our Code formulates
this rule as follows: If, during the novitiate, the novice
in any way whatever renounces his benefices or his prop-
erty, or encumbers them, such a renunciation or encum-
brance is not only illicit but null and void.
Hence (1) no ecclesiastical benefice, as defined under
can. 1409, may be renounced by the novice, no matter
what its value or importance may be. Hence no parish,
no chaplaincy, no canonicate, no prebend, if they are
canonical benefices, may be given up. But what about
our parishes?*1 Although they perhaps lack an essen-
tial feature of benefices, vis., objective perpetuity, we be-
lieve that the mind of the legislator regards them as
benefices.62 For, as we have said, the end of the law is
to safeguard liberty, which may be just as seriously im-
paired by the resignation of a parish as of a strict benefice.
(2) The novice may not renounce his property — bona.
To this category belong all donations of considerable
amount, title-deeds or other claims to property, shares,
bonds, interest, contracts which are more favorable than
injurious to the novice,58 legacies and bequests already re-
ceived or to be received during the novitiate ; but not small
donations or alms given to the poor or to the monastery,
nor legacies or inheritances to be expected after the death
of relatives or friends.84 (3) Renunciation may be made
in favor of friends, relatives or other persons, also in
favor of the institute one wishes to enter, or of another
50 Trut., sess. 25. c. 16 de reg. novice, and therefore open to a
bi Can. 584. broad interpretation.
KThifl law, although teemingly &a Cf r. Piatus M.. I, 124.
restrictive, yet ■■ favorable to (he 54 Keiftenstuel, III, 31, n. 136.
*Ic
J , Original from
UNIVERSITY OF WISCONSIN
246 RELIGIOUS
institute. It means to disclaim any right to such goods.
Obligation is here understood not only in the legal sense
of bond or bail, but in a wider sense, comprising vows,
oaths, promises, and the moral duty which binds one to
do or omit something. For any such act is a restriction
of liberty. Now all such acts are declared null and void,
and therefore would not bind the novice nor convey a
legal title to the recipient. Hence even though the civil
court would uphold the legality of such an act, in con-
science those benefited by it could not accept the property.
I Can. 569
§ z. Ante profession em vo tor urn simplicium sive
ternporariorum sive perpetuorum novitius debet, ad
totum tempus quo simplicibus votis adstringetur,
bonorum suorum administrationem cedere cui maluerit
et, nisi constitutiones aliud ferant, de eorundem usu et
usufructu libere disponere.
§ a. Ea cessio ac dispositio, si praetermissa fuerit ob
defectum bonorum et haec postea supervenerint, aut
si facta fuerit et postea alia bona quovis titulo ob-
venerint, fiat aut iteretur secundum normas § 1 sta-
tutes, non obstante simplici professione emissa.
§ 3. Novitius in Congregatione religiosa ante profes-
sionem votorum ternporariorum testamentum de bonis
praesentibus vcl forte obventuris libere condat.
§ I. Before the profession of simple vows, whether
temporary or perpetual, the novice must cede, for the
whole period during which he will be bound by simple
vows, the administration of his property to whomsoever
he chooses and dispose freely of its use and usufruct ex-
cept the constitutions determine otherwise.
§ 2. If the novice, because he possessed no property.
§le
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 569 247
St
a
omitted to make this cession, and if subsequently prop-
erty should come into his possession, or if, after making
provision, he becomes under whatever title the possessor
of other property, he must make provision, according
to § 1, for the newly acquired property, even if he has
already made simple profession.
§ 3. In every religious congregation the novice, before
making profession of temporary vows, shall freely dis-
pose by will of all the property he actually possesses or
may subsequently possess.
The enactment of this canon would at first sight appear
contrary to can. 568. which forbids any renunciation or
encumbrance of property. Here certain acts are permit-
ted which seemingly violate that prohibition. However,
the contradiction is but apparent. For can. 568 speaks
of the time during the novitiate (in novitiatus decursu),
whereas can. 569 refers to the period immediately pre-
ceding profession. The Tridentine Council BB permitted
a disposal of property to be made within two months
before profession. Resides, in can. 569 the question
turns on ceding the administration and disposal of the
use and usufruct, whilst can. 568 speaks of the property
itself. Administration means the management of affairs
pertaining to property or estates of any kind, also in-
corporeal rights, such as copyrights and patent rights.
Now this function must be given to another, who may
be a layman, or the religious order or congregation it-
self.86 Of course, this must be done in a legal form, in
other words, in court, unless the religious community is
acknowledged by law as a civil corporation, in which lat-
ter case the by-laws should provide for such eventualities.
The next act which a novice should freely perform is
53 Trid., scss. 25, c. t6, de reg. la, 1858, n. 9 (Bizzarri, I. c, p.
MS. C. super statu Re*., June 856: " ae etiam suo ordini.")
.'Ie
, ,1,., Original from
UNIVERSITY OF WISCONSIN
■
248 RELIGIOUS
to dispose of the use and usufruct of his property.
There is a little difficulty as to the term use. If it in-
volved the consumption of the whole property it would
impair the freedom of the owner and run counter to
can. 581, which says that professed religious of simple
vows cannot validly renounce their property, except
within the sixty days immediately preceding the taking
of solemn vows. Hence use must here be taken as an
application to a good and useful purpose of the income
from the capital or property. This is more clearly ex-
pressed in a declaration of June 12, 1858, where we read
of " expending and using the income or revenues (red-
ditits)." " Usufruct is the temporary use of a thing, or
profit and advantage derived therefrom without destroy-
ing or wasting its substance, for instance, of a house or
farm.
The cession of the administration and disposal of such
property must be made before simple profession and re-
mains in force for the whole period during which the
subject is bound by simple vows.
§ 2 applies this ruling to two cases: (a) when a novice
had no property, the administration of which he would
have to cede, or of which he could freely dispose, but
comes into the possession of property subsequently;
(b) when he foresees an increase of his property after
simple profession. In both cases, says the Code, the
simple profession does not prevent the novice from ced-
ing the administration and disposing of the property
newly acquired.
§ 3 mentions the testament or last will, by which a
novice, before making profession of temporary vows,
shall dispose of the property he actually possesses or
may subsequently possess. This, of course, only for the
67 Ibid., cfr. Normae, n. 115.
ogle
k ,] , Original fro m
UNIVERSITY OF WISCONSIN
CANON 570 249
case of death. The Code restricts the making of a last
will to novices of religious congregations, excluding the
orders, which, however, may be benefited by an act of
the novice inter vivos, or a donation, properly so-called.
Can. 570
-
§ 1. Nisi pro alimentis ct habitu religioso in consti-
tutionibus vel expressa conventione aliquid in postu-
latu vel novitiatu ineundo solvendum caveatur, nihil
pro impensis postulatus vel novitiatus exigi potest.
§ 2. Quae adspirans attulerit et usu consumpta non
fuerint, si e religione, non emlssa professione, egredia-
tur, ei restituantur.
Except the constitutions or a formal agreement require
the payment of a certain sum for food and clothing dur-
ing the postulancy or novitiate, nothing may be exacted
to defray the expenses of the postulancy or novitiate.
All that the aspirant brought with him and has not con-
sumed, shall be returned to him if he leaves without mak-
ing profession.
The ancient monastic rules were not in favor of de-
manding anything, in whatever shape or form, from those
who knocked at the door of the monastery.88 Councils
forbade the exaction of fees for admission to the religious
state, justly comparing such money to simoniacal extor-
tion.69 The same rule, although in a somewhat mitigated
form, was followed by the S. Congregation of Bishops
and Regulars.
The mitigation consisted in permitting a moderate tui-
tion fee to be charged for the time of probation, an obla-
tion for the sacred functions and for a banquet, but not
,.
bi Cfr. Migiie, 6(5, 831 ff. 30. 40, X, V, 3; Trid., sett. 15, e,
60 Cfr. cc. a, 3, C. 1, q. a; c. s> 16. de ret;.
Q 3Q, q. 3; c. a, X, 35; «. 19, a^
jle
f~* ^ 1 %\s* Original from
UNIVERSITY OF WISCONSIN
250 RELIGIOUS
too sumptuous. But no stipulation as to these latter offer-
ings was allowed, and the custom of receiving or demand-
ing any admission fee reprimanded.00 Our Code con-
el?
firms this practice, but adds that the expenses must be
either mentioned in the Constitutions or determined by
special agreement.
T
ENDING THE NOVITIATE
c
Can. 571
§ 1. Novitius potest religionem libere deserere, aut
a Supcrioribus vel a Capitulo, secundum constitutiones,
quavis iusta de causa dimitti, quin Superior vel Capi-
tulum teneantur dimissionis causam dimisso pate-
facere.
§ 2. Exacto novitiatu, si iudicetur idoneus, novitius
ad professionem admittatur, secus dimittatur ; si
dubium supersit sitne idoneus, potest a Supcrioribus
maioribus probationis tempus, non tamen ultra sex
menses, prorogari.
§ 3. Votis nuncupandis spiritualia exercitia novitius
praemittat per octo saltern solidos dies.
The first paragraph of this canon provides
(1) That a novice may freely leave the institute.
(2) That he may be for any just cause dismissed by
the superiors or chapter, who arc not bound to make
known to him the reasons for his dismissal.
(3) That the dismissal must be according to the terms
of the constitutions.
As to the last point note that the Code insists upon the
constitutions of the institute. If these prescribe that the
chapter has the right to dismiss novices, the chapter must
decide each case by secret ballot. If the constitutions
MS. C. EE. ct RR„ Dec. 11, 1789 (Birzarri, L c, p. 396).
"-.
oogle
i*~^ ^ ^ ^L> Original from
UNIVERSITY OF WISCONSIN
CANON 571 251
arc silent on this point, the superior may dismiss the
novice. But neither superior nor chapter are obliged to
make known to the novice the reason for his dismissal ;
for. as the novice is free to leave, so the institute is free
to dismiss one whom it deems unfit. However, justice
requires that no one be dismissed without a just cause,
because arbitrary proceeding might destroy or injure the
good name of the novice. Therefore a Decretal of Greg-
ory IX ruled that if the novice absolutely insisted on re-
maining to serve God, he should be allowed to do so.nt
Of course this meant that he must be willing to observe
•a
the rule and fit himself for membership, for no religious
institute or society can be compelled to retain an unfit
member.
§ 2. After the completion of the novitiate, the novice,
if deemed fit, shall be admitted to profession ; otherwise
he shall be dismissed; but if there arises a doubt regard-
ing his fitness, the higher superiors can prolong the noviti-
ate, but not beyond six months. Some misgivings might
arise as to religious institutes which prescribe a two years'
novitiate ; have their superiors, too, the right to prolong
the novitiate for six months? Our answer is, yes, be-
cause, on the one hand, the Code (can 555, § 2) admits a
two years' novitiate, and, on the other, it only says,
exacto novitiatu, after the novitiate is completed. If the
text would say, after the year's novitiate {exacto noviti-
atus anno) the answer would be negative; this, however,
is not the wording of the text.
The last paragraph of can. 571 prescribes a spiritual
retreat of at least eight whole days before profession.
" Eight whole days " means that the retreat must com-
mence in the morning and end in the evening of the eighth
day, so that profession takes place on the morning of the
ninth, or on the evening of the eighth day.
61 c. 23, x, ru.ii.
■"■
>gle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CHAPTER III
RELIGIOUS PROFESSION
The term profession, from profilcri, denotes an exter-
nal act of conviction. Thus we speak of the profession
of faith, and St. Paul says: " With the heart we believe
unto justice; but with the mouth confession is made unto
salvation." x
Religious profession, therefore, is an external act of
the mind by which one embraces the religious state, or
the external testimony of one who aspires to be a servant
of God. It is well known that the ancient ascetics had a
predilection for the word profession and defined it as a
"covenant with God."2 This flows from the very es-
sence of the religious state, which involves service or
worship of God.
As the Sacraments have their visible signs, so, too,
religious profession is clothed in outward ceremonies.
As the "second baptism *' 8 (thus it was styled), pro-
fession was ever surrounded by more or less elaborate
rites. We know from St. Benedict's Rule (c. 58) that
the act of profession was performed in the oratory in
the presence of the abbot and the community; that the
novice made a promise the contents of which were formu-
lated according to the rule and written in the document,
which is signed by the novice and placed upon the altar.
This was followed by the investiture. Thenceforth the
1 Rom. X. p. Beirlraoc but Geseh. dti alttm
a St Basil, Reg. futior, tr. 14 Afonchtums. 1912, III, I, p. 6.
(Migtie, P. G., 31, 950) ; Hcrwegen, s Mignc, P. L., 66, 8*7.
352
jle
£ * ^ ^ %lj* Original from
UNIVERSITY OF WISCONSIN
CANON 571 253
a
novice was a member of the community, with all the obli-
gations and rights of membership. A document was
drawn up containing his petition to be received, as well
as the promise to live perpetually in the community under
the obedience of the abbot, for the purpose of striving
after perfection. Note, however, that after the act was
performed, the newly professed was considered to be a
member of the congregation endowed with rights. Ac-
cording to the ideas of the olden time, the obedience
promised was looked upon as a sort of personal vassalage
to the abbot. It would hardly be possible now-a-days
to conceive of such absolute subjection, and the spirit of
our time is opposed to any such relation. Yet the spirit
of obedience, being essential to the religious state, can
never be sacrificed to the idol of a falsely so-called de-
mocracy.
Concerning the sacred virgins, we know from St. Am-
brose that the bishops u consecrated " them, usually on
the feast of the Resurrection, on which, as he says, Bap-
tism is conferred in the whole world.* The bishop
blessed the veil and put it on the head of the virgin.8
This veil seems to have covered the head and upper part
of the body like a helmet or breast-plate. Its color was
sombre, in opposition to the yellow bridal veil,8 because
it signified holy sorrow.7 The ceremony was accom-
si
panied by appropriate prayers and the people answered :
" Amen." B It is evident that the sacred veil signified the
mystic espousal with Christ, to whom these virgins dedi-
cated themselves.
Having said this much concerning the rite and signifi-
cance of profession, which is nothing else but public en-
4 Migne, P. L.t 16, 331, 348. « Ramsay-Lanciani,. Roman An-
■ Opp. Nicetae, Migne, P. L., S», tiqmties. 1901, p. 478.
1099 L 7 Migne, P. L„ $2, rooo.
8 Migne, P. L.f 16, 37a.
D
'■-.
jle
f^ ^ s ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
254 RELIGIOUS
trance upon the exclusive service of God, according to a
determined rule or constitution, we may now hear what
the Code says concerning profession. The classification
of profession into temporary, perpetual, simple, and
solemn is to some extent new. For, as said before,
to the middle of the XVIth century only one pro-
fession, the solemn, was acknowledged, which was sup-
posed to take place after the novitiate. With the excep-
tion of the Jesuits this practice was followed by all re-
ligious institutes until 1858, when the S. C. super Statu
Regularium issued the decree, " N eminent latet" This
decree enacted that after the novitiate the members of
male religious institutes should take simple vows, which
were to be continued for three years from the date of
the simple profession, or longer, according to the pru-
dent judgment of the superiors, but not beyond twenty-
five years. Leo XIII (" Perpensis," May 3, 1902) ex-
tended this decree to nuns with solemn vows. Yet it
has always been the opinion of authors and the practice
of the Roman congregations up to a few years ago to
consider these simple vows as perpetual on the part of
the religious. But lately the Roman Court commenced
to regard them as temporary or triennial, and this view
has been embodied in the Code.
requisites of validity
\ Can. 572
§ 1. Ad validitatem cuiusvis religiosae professionis
requiritur ut:
i.° Qui earn emissurus est, legitimam aetatem
habcat ad norm a in can. 573 ;
a.° Euro ad x>rofe<*sionejn admittat lcgitimus Supe-
rior secundum constitutiones;
■
oogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 572-573 255
3.0 Novitiatus validus ad normam can. 555 prae-
cesserit;
4. "' Professio sine vi aut metu gravi aut dolo emit-
tatur;
5.0 Sitexpressa;
6.° A legitimo Superiorc secundum constitutiones
per se vel per alium recipiatur.
§ 2. Ad validitatem vero professions perpetuae sive
sollemnis sive simplicis, requiritur insuper ut praeces-
serit professio simplex temporaria ad normam can. 574.
1. For the validity of any religious profession what-
ever it is required that he who makes it be of the legiti-
mate age, vie, for the first temporary profession he must
have completed his sixteenth year; for perpetual profes-
sion, whether simple or solemn, the twenty-first, accord-
ing to
Can. 573
Quilibet professionem religiosam emissurus oportet
ut decimum sextum aetatis annum expleverit, si de
temporaria professione agatur; vicesimum primum, si
de perpetua sive sollemni, sive simplici.
The Code determines the minimum age, but leaves the
question as to a more advanced age undetermined. The
Normae ■ rule that in institutes with simple vows the
candidate should not be more than thirty years, and al-
though these are not law, yet if the constitutions con-
tain a prescription to that effect, it would not be against
the law. But they may not go below the minimum as
fixed by can. 573.
2. The novice must be admitted by the lawful superior
• N. 6t. Thoie who had passed the 30th year, in female congregations,
needed a papal indult
I Original from
■OOgie UNIVERSITY OF WISCONSIN
256 RELIGIOUS
according to the constitutions. Who that superior is,
must be determined by the rule and the constitutions (cfr.
| can. 543).
3. The profession must be preceded by a valid novitiate
according to the terms of can. 555, which have been ex-
plained supra.
4. The profession must be free from compulsion, fear,
and fraud. These three conditions may be reduced to
one: freedom of profession. For further explanations
see under can. 542, i.° Deceit (dolus) would be present
if the one professing subscribed the formula of profes-
sion either in a faulty way or with the wrong name.
5. The profession must be expressed in formal terms.
This means that it must be made either in writing, or if
orally, in such a way that no reasonable doubt is left as
to the consent of the one who makes it. A deaf and
dumb person would, therefore, have to express his con-
sent in writing to eliminate all doubt. Tacit profession
is no longer 10 admitted. It used to be assumed " if the
novice was admitted to capitular acts (voting) permitted
only to professed members, or allowed to wear the reli-
gious habit after a year's novitiate. Now profession, to
be valid, must be made in words or signs which formally
express the intention.
6. The profession must be received by the lawful supe-
rior or his representative (as mentioned in can. 543).
Note the distinction between No. 2 and No. 6. There
c
admission to profession was the subject of the enactment,
here the question turns about the superior, in whose pres-
ence the profession must be made. The constitutions
determine who is the legitimate superior authorized
10 S. C EE. et RR.. June 11. 11 Cf. cc. 23, 23. X, III, 31: ec
1858; Leo XIII, " Perpensis" i, 3, 4, 6\ III, 14.
May 3, 1903.
oogle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 574 257
to receive professions. In diocesan congregations the
bishop of the diocese is entitled to this privilege, whilst
in papal institutes it depends entirely on the constitutions.
The delegate of the lawful superior12 should be a
priest if the ceremony takes place during Mass and the
delegate personally receives the profession. Wherefore
in the formula of profession both the superior's name
and that of the delegate must be mentioned. However,
if profession is made into the hands of the superioress,
or her delegate (who may be any professed sister) the
formula of profession must contain the name of the dio-
cesan Ordinary, in whose hands the profession is made,
and also the name of the delegate of the Ordinary, if the
latter is not personally present at the ceremony. For
the rest we refer to can. 576.
For the validity of perpetual profession, whether sol-
emn or simple, the following requirements are laid down :
TEMPORARY PROFESSION
a
Can. 574
a.
§ i. In quolibet Ordine tarn virorum quam mulie-
rum et in qualibet Congregation*; quae vota perpetua
habeat, novitius post expletum novitiatum, in ipsa
novitiatus domo debet votis perpetuis, sive sollemni-
bus sive simplicibus, praemittere, salvo praescripto
can. 634, votorum simplicium professionem ad trien-
nium valituram, vel ad longius tempus, si aetas ad
perpetuam professionem requisita longius distet, nisi
constitutiones exigant annuales professiones.
§ 2. Hoc tempus legitimus Superior potest, reno-
vate a religioso temporaria professione, prorogare, non
tamen ultra aliud triennium.
11 RtguU Iuris, 68, in 6*.
jle
Original from
UNIVERSITY OF WISCONSIN
258 RELIGIOUS
a
§ I. In every order, both of men and of women, and
in every congregation with perpetual vows (except the
case of transfer according to can. 634) the novice must,
after completing the novitiate, and in the novitiate house
itself, make profession of simple vows; this profession,
which must precede perpetual vows, whether solemn or
simple, is valid for three years, or for a longer period if
the age required for perpetual profession has not been
reached, unless the constitutions prescribe annual pro-
fessions.
§2. The legitimate superior can prolong this period,
but not beyond three years, the religious meanwhile re-
newing the temporary profession.
Here we have the new legislation, no longer a waver-
ing practice. In every religious institute, therefore,
whether of men or of women, exempt or not exempt,
papal or diocesan, a temporary profession, lasting as a
rule, for three years, must precede perpetual pro-
fession.
Profession in general, we said, is the public entrance
upon the religious state according to a determined rule
or constitution. In this are included the three essential
elements of the religious state: poverty, chastity, and
obedience. Only the last element might be more elab-
orate ; for obedience supposes acceptance. Hence, more
fully defined, profession is a bilateral contract by which
one consecrates himself to God through the three vows,
and to the service of a community approved by ecclesias-
tical authority, the religious superior accepting the vows
in the name of the Church and admitting the person to
share in the rights and privileges of the community.1*
IsTbm Schmier, luruprudentta 187 f; Wernr, Jus Dtcret, III, n.
Cancntco-Ch-ilis, 1. Ill, li, t, c. 3, 640.
n. 168; Schmalzgnicber, III, 31,
.'le
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 574 259
It would be useless, and we might say dangerous, to at-
tempt M to deny that religious profession partakes of the
nature of a contract : useless, because the essential ele-
ments of a contract are present, vis,: two parties, mutual
consent, and obligation. It would be dangerous, because
who would enter the religious state if his spiritual wel-
fare were not safeguarded and his support guaranteed?
Wc may look at the consecration of oneself to God from
the highest view-point of mysticism and absolutism, a
man endowed with reason and free will cannot, from
the viewpoint of natural law, abstract from the idea of
receiving rights for assuming duties, nor from the right
to an honest living. The Rule of St. Benedict is not
opposed to this view.18 For promise and petition must
be rewarded, and they are recompensed, because hence-
forth the professns is to be considered a member of the
congregation,1* and membership without rights would be
a mere phantasm.
Applying the definition set forth above, it is evident
that a distinction must be made between temporary and
perpetual, simple and solemn profession. Temporary
profession does not involve such an absolute and lasting
contract as perpetual profession. In regard to the latter
the difference between simple and solemn vows is most
important. Simple perpetual profession implies no abso-
lute and irrevocable covenant, whilst solemn perpetual
profession, by its very nature, spells irrevocable conse-
cration to God and acceptance of the same on the part
of the religious superior in the name of the Church. The
difference will become more palpable when the conse-
a
c
14 Molitor, Relijjiosi Iuris Capita 10 A pactum or covenant was
SrUcta, 1900, p. 69 ff., who " §e- contained in the formula of pre-
lected " for i.i-- aim the aggrandize- fession prescribed b;- S. Fruetuosue
ment of abbatial power. of Braga (Vllth century).
15 Reg., c, 58.
Q
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
260 RELIGIOUS
a
quences and obligations are considered (can. 579 and
title XIII, ch. I).
Temporary profession may be made after the age of
sixteen has been completed; perpetual profession after
the 21st year. Hence if one makes profession at the
age of sixteen, he has to remain in simple profession for
five full years. The term may even be protracted for
three years more, if the superior finds it necessary. A
difficulty may arise concerning the date from which the
superior may prolong the temporary profession : is it
from the lapse of the third year of profession or from the
age of twenty-one years, completed? If the end of the
third year of temporary profession coincides with the
twenty-first year completed there is no difficulty. For
instance, a Sister would have to make profession on
Nov. 21, 1918, having completed her twenty-first year
of age as well as the third year of temporary profession.
She wavers in her decision ; — may the superioress pro-
long her time for one, two, or three years? Yes. And
in the meanwhile she may renew the profession every
year on Nov. 21. But what, if the Sister should be
twenty-four years of age when she would have to make
perpetual vows ? Is the superioress in that case allowed
to prolong her profession — to the limit of three years?
Yes, because (as we believe) the dividing line is not so
much the twenty-first year completed, this being only the
minimum, than the date of temporary profession. This
is especially convenient for institutes which prescribe five
years' annual profession — a custom that may certainly be
followed, since the text itself admits annual profession.
But at the same time the triennial term must be kept and
the prorogation should only be applied in really doubtful
cases, and until the Code can be fully applied. Note that
the Code makes the temporary profession imperative only
D
'■-.
jle
i"~* -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 575 261
a
for institutes in which perpetual vows are taken.
But it includes all these institutes. Hence also lay broth-
ers of religious orders, who would take solemn or simple
perpetual vows, must now make, first the temporary pro-
fession, and after three (respectively five years, if the
candidate was only i6at the time of the first profession)
perpetual vows.
The Code excepts cases of transfer (see can. 634).
The legitimate superior who may prolong the period
of temporary profession is the one who admits to pro-
fession, not the one who assists at the act; therefore the
higher superior.
I Can. 575
§ 1. Exacto professions temporariae tempore, reli-
giosus, ad normam can. 637, vel emittat perpetuam
professionem, sollernnem vel simplicem secundum
constitutiones, vel ad saeculum redeat; sed etiam,
durante tempore professionis temporariae, potest, si
dignus non habeatur qui vota perpetua nuncupet,
dimitti a legitimo Superiore ad normam can. 647.
§ a. SufFragium Consilii seu Capituli pro prima pro-
fession temporaria est deliberativum ; pro subsequente
professione perpetua, sollemni vel simplici, est con-
sultivum tanturn.
When the period of temporary profession has expired,
the religious, according to can. 637, must cither make
perpetual profession, whether solemn or simple, accord-
ing to the constitutions, or return to secular life; but
even during the period of temporary profession he can,
if not judged worthy to pronounce perpetual vows,
be dismissed by the legitimate superior in accordance
with can. 647.
The vote of the council or chapter for the first tem-
'■-.
ibyC *Ie
j , Original from
UNIVERSITY OF WISCONSIN
262 RELIGIOUS
porary profession is deliberative; for the subsequent per-
petual profession, solemn or simple, it is advisory only.
This canon clearly shows that the temporary profession
is a sort of protracted novitiate. At the age of twenty-
one, if the temporary profession or three years term
expires at the same time, or after the three years' pro-
fession, but not before the twenty-first year of age, the
religious may freely return to the world, if he does not
wish to assume the responsibility of perpetual vows, or
have the temporary profession prolonged according to
can. 574, § 2. Besides, he may be dismissed if he lacks
the necessary qualities. In the latter case it must be ob-
served: (a) That sickness contracted after the first pro-
fession during the temporary profession is no cause for
dismissal; only if it had been deceitfully concealed or
simulated at the time of the first profession would it be
a sufficient reason for dismissing one (can. 637) ; (b)
that the terms of can. 647 must be observed, as shall be
explained later.
What is prescribed in § 2 concerning the nature of the
vote or ballot is now law, and has been since 1862, when
the S. C. Regularium decreed that the chapter, i. e., the
whole electoral college, or the counsellors, 1. e., a chosen
number of religious, must decide by secret ballot whether
or not one is to be admitted. But at that time the simple
profession was considered perpetual in religious orders.
Hence, logically, the admission to solemn profession had
not necessarily to be submitted to the decisive vote again,
the advisory vote being sufficient. However, since the
new legislation changes the nature of the first profession
into a merely temporary affair, it would have been but
logical to change the advisory vote for perpetual profes-
sion into a decisive vote.
§le
£ * ^ .. -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 576 263
a
a
Can. 576
§ 1. In emit ten da professione religiosa servetux
praescriptus in constitutionibus ritus.
§ 2. Documcntum emissae professionis, ab ipso pro-
fesso et saltern ab eo coram quo professio emissa est,
subscription, servetur in tabulario religionis; et insu-
per, si agatur de professione sollemni, Superior cam
excipiens debet profitentis parochum baptismi de cadem
certiorem redderc, ad normam can. 470, § a.
§ i. Iii making the religious profession, the rite pre-
scribed by the constitutions must be observed. Rite
means the sum total of the formalities or ceremonies
which surround the religious act. Hence, it is essen-
tially distinct from the consent of the religious, by which
he dedicates himself to the service of God, and which
the lawful superior accepts in the name of the Church,
and the rite does not affect the validity of the act, unless
the constitutions rule otherwise. Rite, therefore, indi-
cates the place, time, and ceremonies prescribed by the
'constitutions and the decree of the Congregation of Rites,
Aug. 27, 1894.
(a) As to the place, can. 574 says that the temporary
profession should be made in the noiritiate house itself.
For other professions, whether annual or perpetual, sim-
ple or solemn, the Code prescribes no definite house, but
leaves the matter to custom and the constitutions. But
it may be safely assumed that the oratory or chapter
room is the proper place for making profession.
(b) Concerning the time, as far as the period or term
is not considered, nothing special is required or prescribed
that would affect validity. Any day, therefore, and any
time .of the day may be called suitable for profession.
(c) The ceremonies, if the constitutions do not pre-
jle
^ -,\,^ Original from
UNIVERSITY OF WISCONSIN
264 RELIGIOUS
scribe otherwise, are those contained in the above-men-
tioned decree of the Sacred Congregation of Rites.17
They are briefly as follows: If profession takes place
during Mass, the celebrant, who is to receive the profes-
sion, after having taken the Precious Blood, and after the
recital of the Confitcor, Misereatur, and Indulgentiam,
turns towards the candidates, holding in his hand the
Sacred Host. Each candidate reads with a loud voice
the formula of profession and thereupon receives the
Blessed Sacrament.
At the renewal of vows, the celebrant turns towards
the altar and waits until all have read the formula of
renewal. This is read aloud by one and repeated by
the others. After this recital all receive Holy Com-
munion in the order of precedence established by the date
of profession. However, adds the decree, this method
of making profession must not be appended in the re-
spective constitutions. Besides, it is chiefly intended for
Sisters' and lay institutes. We may also cite a decision
— not a general decree — of the same Congregation,
given in reply to a query of a former arch-abbot of the
Beuronese Congregation. He had asked whether at the
solemn profession made during Mass other prayers may
be added from authentic sources of the Roman Rite.
The S. Congregation answered: " It is not expedient." 18
The nuns with solemn vows receive the veil, ring and
crown (wreath) at the simple profession; but the for-
mula of solemn profession, which may, at the request of
the superioress or community, be made publicly, must ex-
pressly contain the words: solemn profession."
§ 2. A written declaration of the profession, signed by
IT Deereta Authenliea, n. 38.^, M Decreta Aulhcnlico, n. 3736.
which is not a particular decision, 10 S. C. EE. et RR., Jan. 15,
but a general decree, specially ap- 1903 {Annul. Eccl., XI, p. 415).
proved by Leo XIII.
►ogle
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 576 265
the person professed and at least by him in whose pres-
ence the profession was made, must be kept in the ar-
chives of the institute. Besides, the superior who has
received solemn profession must notify the pastor in
whose parish the professed religious was baptized, ac-
cording to can. 470, § 2.
This paragraph contains two different clauses; the
first concerns a written declaration of the profession, the
second registration in the baptismal record.
The " Normae " (n. 99) prescribed — and this rule still
holds good — that the formula of profession must be sub-
stantially inserted in the constitutions. It must be clear
and simple, expressing that the religious consecrates him-
self to God by the three vows, according to the constitu-
tion of the institute, either temporarily or perpetually.
The formula actually used in the ceremony of profession
may be more elaborate, but should not contain any essen-
tial additions.
As St. Benedict (c. 58) had already provided, this
formula must be written or signed by the person who
makes the profession. If he is unable to write, he may
make the sign of the cross on the paper and then place
it on the altar. St. Benedict says nothing, however, of
the superior signing the formula. Perhaps the abbot
signed the document, because it was considered a sort of
legal contract ; promise and petition and the whole appa-
ratus of ancient documents seem to point to that,20 and
hence it is not surprising that the legislator demands
that the one in whose presence the profession was made
should also subscribe to the formula. Notice the word-
ing coram quo, H in whose presence," — an evident allu-
sion to St. Benedict's Rule (c. 58), which says, "in the
presence of all" (coram omnibus). There might be a
SO Herwegen, I. f., p. 4.
G| Original from
°°alc UNIVERSITY 0FWI5C0NSIN
266 RELIGIOUS
St
doubt whom the legislator means. Is it the superior
into whose hands the profession is supposed to be made,
or the superior who acts as his representative? In dio-
cesan congregations there is little difficulty. For the
one in whose presence the profession is made is the
Ordinary or his delegate, who therefore has to sign the
document or formula of profession. In papal institutes,
especially of women, there is the superioress and the
priest who assists at the rite of the profession. Which
of them must sign the formula? We believe we are jus-
tified in saying (according to can. 572, § 1, 6) that the
superioress or her delegate assisting at the profession
has to sign the formula of profession together with the
religious.
The document thus signed — if other bystanders wish
to sign the Code does not forbid it — must be preserved
in the archives of the institute. By institute (religio)
the law implies that every order, or congregation, or con-
vent, or monastery has its archives. It matters little in
which of these archives the document is preserved.81
The second clause provides that the fact of solemn
profession be registered in the baptismal record of the
parish where the solemnly professed religious was bap-
tized. Therefore the baptismal records ought to have a
special column for such entries.
The reason for this ruling is not far to seek. For
can. 1073 makes solemn profession, and simple profes-
sion by special apostolic indult," an impediment to mar-
riage.
D
21 This is also in accordance with 22 This is the case of the Society
St. Benedict'! Rule (c. 58): m of Jesua.
tnomiitma res*wv*tur."
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 577-578 267
a
renewal of vows
Can. 577
§ 1. Elapso tempore ad quod vota sunt nuncupata,
renovationi votorum nulla fist interponenda mora.
§ 2. Superioribus tamen facultas est ex iusta causa
permittendi ut renovatio votorum temporariorum per
aliquod tempus, non tamen ultra mensem, anticipetur.
When the period for which the vows have been taken
has expired, ihey must be immediately renewed. Supe-
•a
riors, however, are empowered, for a just cause, to an-
ticipate the renewal of vows, but not beyond one month.
It is evident that the rencival of vows here is meant
not as an act of mere devotion, but as producing juri-
dical obligations. Therefore at the moment when the
period, say one year, has elapsed, the renewal must take
place after the 365th day, or on the first day after the
year is completed. A sufficient reason for anticipating
the renewal of vows would be sickness, departure for a
study house, or a certain task. Of course, it is supposed
that the religious freely consents to the anticipation. A
month, canonically, is a period of thirty days.53
rights and obligations of professed persons
Can. 578
c
Professi a votis temporariis, ed quibus ni can. 574:
i.° Fruuntur iisdem indulgentiis, privilegiis et
spiritualibus gratiis, quibus gaudent professi a votis
sollemnibus aut professi a votis simplicibus perpetuis ;
et si morte praeveniantur, ad eaderr. suffragia ius
habent ;
tt Cfr. can. 3a, 9 *.
.'Ie
Original from
UNIVERSITY OF WISCONSIN
-'
? « o
268 RELIGIOUS
2.0 Eadcm obligatione tcncntur observandi rcgulas
ct constitutiones, sed> ubi vigct chori obligatio, divini
officii privatim recitandi lege non obstringuntur, nisi
sint in sacris constituti aut aliud constitutiones ex-
prcsse praescribant ;
3.0 Voce activa et passiva carent, nisi aliud in con-
stitutionibus exprcsse caveatur; tempus autem prac-
scriptum ad fruendum voce activa et passiva, silcntibus
constitution ibus, computetur a prima professionc.
Those who have made profession of temporary vows
treated of in can. 574:
l.° Enjoy the same indulgences, privileges, and spir-
itual favors as the professed of solemn vows or of simple
perpetual vows ; and in case of death they are entitled to
the same suffrages.
2.0 They are equally obliged to the observance of the
rule and constitutions, but where choir service is obliga-
tory, they are not bound by law to the private recitation
of the divine office, except they are in holy orders or the
constitutions expressly impose it.
3.0 They have neither active nor passive vote, except
the constitutions expressly declare otherwise; but the
time requisite for the enjoyment of an active and passive
voice, when the constitutions are silent on the matter,
is to be reckoned from the date of the first profession.
The first number puts all members of a religious com-
munity, order or congregation on an equal footing con-
cerning spiritual rights and privileges. The Code men-
tions indulgences, spiritual favors, and privileges. What
the last-mentioned term means has been sufficiently ex-
plained in the first book, title V.
Of indulgences the Code speaks in the third book, can.
91 1 ff. A spiritual favor is of a somewhat mixed nature.
odbyG \\c
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 578 269
It may be called a privilege, since every privilege is a
favor,-* yet it is restricted to the court of conscience.
Such a favor is absolution from censures or reserved
cases, change of private vows, dispensation from fast
and abstinence, etc. Privileges one enjoys as far as he
is capable of making use of them. Privileges granted to
clerical orders as such are not intended for orders or
congregations of women ; privileges given to priests can-
not be used by clerics who have only minor orders, etc.
Among spiritual favors are also the prayers for the dead.
These, the Code says, are enjoyed by those who have
made profession of temporary vows in the same measure
as by those who have taken perpetual vows ; but we sup-
pose, with the distinction noted under can. 567.
The second number of our canon enjoins the same
obligations on all, with one exception. All professed re-
ligious are bound by the vow of obedience to observe
the rule and constitutions of the community to which
they belong. The exception noted concerns the recita-
tion of the Brniary. Most of the religious orders pre-
scribe the public recitation of the divine office in choir,
at which all have to attend who are not legitimately ex-
cused. The divine office, according to common agree-
ment, forms part and parcel of the religious state, and
therefore all the members of every religious community
are bound in conscience to take part in it in the spirit
of the Church and according to their respective consti-
tutions. Now the Church says that in religious com-
munities which demand attendance in choir, also those
members who have made profession of temporary vows,
should be present at the divine office.20 On the other
24 Suarcz, Dt Legibus, VII, a, 20 Cf. can. 589, 9 2, where allow-
7. ance is made for those engaged in
25 Piatus M., /. c, I, 96 f. itudies.
oogle
Original from
UNIVERSITY OF WISCONSIN
~
270 RELIGIOUS
hand, the Church does not oblige these to private reci-
tation, unless, in accordance with can. 135, they are in
higher orders, i. e., at least subdeacons, or unless the
constitutions prescribe private recitation. The Code
does not mention custom. Therefore mere custom would
not oblige them to private recitation, and this should be
taught in the novitiate in order not to create an erroneous
conscience.
No. 3 determines the right to vote. This is either
active, i. e., the right of partaking in capitular acts by
casting one's vote ; or passive, i. e., the right to being ap-
pointed or elected to an office or prelacy. Both these
rights are given radically by temporary profession, but
are suspended — until when.? Here the Code stops
short, whilst Cardinal Gasparri refers the reader to cer-
tain decisions. We know them, but they do not settle
the controverted point. The quintessence of all these
declarations is that the date from which the right of
active and passive voice is to be reckoned is that of the
first profession. Thus, for instance, to be elected supe-
rior, ten years of profession, according to can. 504, are
required; the dale from which this period must be reck-
oned is the first or temporary profession. However, the
constitutions may fix another date. But when does the
right of active voice start? A declaration of the S. C.
super Statu Regularium, June 12, 1858, would seem to
insinuate that this right commences on the date of
solemn profession.21 Where only simple perpetual pro-
fession is made, it would naturally follow that this right
starts from the date of the perpetual profession. No
law text, however, prescribes the requisite of minor
orders for enjoying the active voice, although particular
constitutions may make higher or sacred orders a condi-
2T Bjxzarri, I. c, p. 858 f.
(^ I Original fro m
dby^-OO^K UNIVERSITY OF WISCONSIN
Q
CANON 579 271
tion for the exercise of the ballot.28 In female congre-
gations the active, not passive, voice is now granted only
to such who have made perpetual vows. Yet, if the con-
stitutions say that those with temporary vows may par-
take in the election of a delegate for the chapter, this
right must be respected, as it was formerly granted ac-
cording to the "Normae" (n. 217), and the Code up-
holds these constitutions. Therefore a superioress would
not be entitled to exclude a Sister with temporary vows
from exercising that right on the strength of can. 578.
Only if the constitutions are not explicit 00 this point,
the Sisters with temporary vows may be excluded. But
in that case all must be treated equally, because no supe-
rior has a right to limit the number of votes except for
reasons expressed in common law 20 or the constitutions.
The same holds good of all religious orders and congre-
gations, the reason being evident. Arbitrary proceed-
ings and injustice would result from the contrary prac-
tice.
effects of religious profession
Can. 579
Simplex professio, temporaria sit vel perpetua, actus
votis contrarios reddit illicitos, sed non invalidos, nisi
aliud expresse cautum fuerit; professio autem sollem-
nis, si sint irritabiles, etiam invalidos.
This and the following canons determine what are
called the effects or consequences of religious profes-
sion. Can. 579 establishes these in general. Note that
there is but one distinction made, vis.: between simple
a
c
28 The decretals and the Council members to receive these orders.
of Trent demanded higher orders 28 Cfr. c. 14, X, I, 6; c. 3a, 6",
only for cathedral and collegiate I, 6; this is called the limitation of
churches, in order to itimulate the votes (eoarctatio votorum).
jle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
272 RELIGIOUS
and solemn profession. Simple profession, whether tem-
porary or perpetual, renders acts contrary to the vows
illicit but not invalid, unless it be otherwise formally ex-
pressed ; while solemn profession renders such acts also
invalid, if they can be nullified.
I. Simple profession, being a species of bilateral con-
tract between the religious institute or community and
the professed member, necessarily produces certain ef-
fects. Some of these have been mentioned in can. 578,
vis.; the rights and obligations in general. The present
canon speaks of certain " acts contrary to the vows."
Contrary means opposed to another person or thing, so
as to destroy it, or at least incompatibility. Thus we
say truth is contrary to falsehood, coldness to warmth,
in the same subject, at the same time, and under the
same conditions. The vows referred to are the three
religious vows of poverty, chastity, and obedience, not
excluding special vows. The acts contrary to these vows
are declared to be either illicit or invalid. They are
illicit, in as far as they are simply forbidden by the vows
themselves, or, let us rather say, they are prohibited be-
cause contrary to the vows, without any penal sanction
or nullifying consequence being attached to the prohibi-
tion. Invalid are acts which are contrary to the vows
and have an ecclesiastical sanction attached to them by
which they are rendered destitute of any juridical value.
Acts are illicit, therefore, because they are immoral,
invalid because, besides being immoral, they are juri-
dically or legally null and void. It is evident that the
Church alone has the right to make the distinction be-
tween simple and solemn profession. In matter of fact
the State pays little attention to the effects of religious
profession. Hence it is, especially in matters of property
rights, all-important that religious communities should
* I Irwilp Original from
,00cVC UNIVERSITY OF WISCONSIN
CANON 579 273
a
a
make by-laws determining the position of their members
as to business transactions and compensation due them
in case they choose to leave.
Acts contrary to the vow of poverty, induced by sim-
ple Profession, are the free and independent disposal and
administration of property after this has been ceded
to the community. Hence a religious with simple vows
may not dispose of his own property or that of the com-
munity. If he would dispose of his personal property,
freely and without permission of the superior, he would
commit a sin against the vow of poverty. But if he
would dispose of community property, he would also
commit a sin against justice, and be obliged to restitu-
tion, as far as he is capable, and as far as a serious dam-
age would have been done to the community, unless the
latter would be in a condition and ready to condone the
damage. Restitution, however, is required only if the
amount of property disposed of illegitimately would
involve a grievous sin. This depends not only on the
customs of the respective institute, but also on the size
and welfare of the community, the value of money, and
the extent of the damage done, as well as on personal
persuasion and ability. We cannot name fixed sums, —
f\vet ten or more dollars. It looks ridiculous to us to
weigh a grievous sin by dollars and cents, as if to set an
admission fee to purgatory or hell. We leave that to
the moralists. Such acts contrary to the vow of poverty
are illicit, but valid, f e., an illicit disposal of property
would be legally valid and the contracting parties would
be held responsible. However, the terms of can. 536
must be taken into consideration here, especially § 3
and § 4, as explained above.
The vow of chastity imposed by simple profession
covers the whole matter of the virtue of chastity, but no
*Ie
£ " ^ v -%\j* Original from
UNIVERSITY OF WISCONSIN
274 • RELIGIOUS
more. The distinction between simple and solemn pro-
fession becomes very palpable in reference to marriage.
For simple profession renders a marriage of a religious
with a lay person or another religious of simple profes-
sion merely illicit, but not invalid, provided, of course,
the ecclesiastical formalities have been duly observed. A
pastor, or rather the Ordinary, would certainly have to
stay such a marriage until the religious would have been
dispensed or dismissed. An exception to this rule is the
simple vow of chastity taken by the scholastics of the
Society of Jesus, which renders a subsequent marriage
not merely illicit but also invalid.30 This so-called privi-
lege is nothing but an application of the old theory*1
that every vow taken in a religious order is a solemn vow
and therefore entails this invalidating impediment.
The vow of obedience excludes all contrary acts in
as far as the rule and the constitutions are concerned.
Authors generally enumerate under this heading private
vows and paternal authority. Private vows are vows
made by a religious before entering the religious state,
for instance, a pledge in the form of a vow or promise
to recite the Little Office of the Blessed Virgin. Simple
profession extinguishes all previous vows as long as one
remains in simple profession. But a vow made forever
revives if the subject leaves the religious state.8' A
vow made in favor of a third person, for instance, to
recite certain prayers or keep a fast for another's benefit,
supposing that the promise was accepted by the other,
would not be extinguished by simple profession, because
made to a third person and not contrary to the religious
state, as we presume. A pilgrimage promised in favor
-
SO Gregory XIII. " Quanto fruc- tl Cfr. c. 10. X. FIT. 3*1 cc. 3.
tuosius," Feb. 1, 1583; " Ascendent* 7, X. IV, 6; c. m. 6*. Ill, 15.
Domino" May 25, 1584; Papl, I. C„ iz Cfr. can, 1313 f.
P. 39-
►ogle
£ " ^ ,,1 » Original from
UNIVERSITY OF WISCONSIN
CANON 579
275
a
N
of a third person, however, could be changed into some
other good work, either by the religious superior or by
a confessor empowered by the proper authority.*3
Paternal authority is excluded, because obedience and
piety are transferred to the religious superiors, I e., ulti-
mately, God. Therefore parents who claim their sons
and daughters after profession sin against the will of
God and should be properly instructed, either in the con-
fessional or outside the sacred tribunal.84
2. Solemn profession is one taken in an order with
solemn vows, acknowledged as such by the Church. It
has the following effects :
The vow of poverty excludes the right of owning prop-
erty and disposing of anything without the permission
of the lawful superior. The Code does not insert the
clause, " unless special provision has been made." Hence
a last will, or a gift inter vivos made by a solemnly pro-
fessed religious, in favor of a convent or other pious
cause would be invalid.85 But the Holy See (S. C. Rel.)
may grant the faculty of disposing or possessing, as was
done in favor of nuns in France and Belgium,86 where
extraordinary conditions seemed to demand an excep-
tion. If these same nuns would establish a foundation
in this country, they could not claim the privilege here,
and would make only simple profession, according to
saCfr. c. 4, X, III, 34: "He
docs not violate the vow who
changei a temporary service into
the perpetual observance of re*
ligion." S\ Th., TI-II. q. 88. art.
12, ad 1 ; q. 189, art. 3, ad 3: con-
fessors taken from orders have that
power.
a« Bouix, Dt lur. Rtg„ I, 617.
85 S. C EE. et RR., March 11,
1853 (Biizarrf, I. c, p. 620 f.). A
religious had been forced by the
government to remain outside the
oogle
convent and obtained an indult
from the S. Poenilentiaria to use
money for himself and for pious
purposes; he made a will in favor
of a pious cause before a notary
public, which was declared invalid,
because the indult was only for the
court of conscience, and besides he
was ordered to return to his con-
vent.
M Bouir. /. c, I, 493 ff.; Piatui
M., I, 10 ff.
Original fro ni
UNIVERSITY OF WISCONSIN
276 RELIGIOUS
the decree of the S. C. of Bishops and Regulars, Sept. 30,
1864,37 unless the S. C. of Religious would make special
rules for them.
With regard to the vow of chastity, solemn profession,
according to our Code (can. 1073), entails an invalidating
impediment to matrimony, and hence an attempted mar-
riage between a solemnly professed and a lay person,
or another religious, would be null and void before the
Church. Only if there were danger of death could the
Ordinary or pastor rectify such an unlawful marriage,
provided, however, neither of the contracting parties
were a priest.38
As to the vow of obedience, we must repeat what we
have said concerning simple profession, viz., that solemn
profession extinguishes all private vows and paternal
authority.
As to vows note that, though one may be secularized
or dispensed afterwards, these vows do not revive, be-
cause solemn profession is supposed to produce this effect
irrevocably.
Such, then, is the relation of certain acts which are
contrary to the vows. The Code proceeds to the fur-
ther determination of acts which specifically touch the
vow of poverty.
property and right of administration
\ Can. 580
§ 1. Quiiibet professus a votis simplicibus, sive pcr-
petuis sive temporariis, nisi aliud in constitutionibus
cautum sit, conservat propnetatem bonorum suorum
et capacitatem alia bona acquircndi, salvis quae in can.
569 praescripta sunt.
8T Bixzarri, /. ft, p. 7»3 '• 88 Cfr. can. 1043 f.
"-.
ioi >gle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
p
CANON 580 277
§ 2. Quidquid autem industria sua vel intuitu reli-
gionis acquirit, religioni acquirit.
§ 3. Cessionem vel dispositionem de qua in can. 569,
§ 3, professus mutare potest non quidem proprio arbi-
trio, nisi constitutiones id sinant, sed de supretai
Moderatoris licentia, autf si de monialibus agatur, de
licentia Ordinarii loci et, si monastcrium regularibus
obnoxium sit, Superioris regularis, dummodo mutatio,
saltern de notabili bonorum parte, non fiat in favorem
religionis; per discessum autem a religione eiusmodi
cessio ac dispositio habere vim desinit
§ 1 states that those who have made profession of
simple vows, temporary or perpetual, retain the proprie-
torship of their property and the capacity to acquire other
property, unless the constitutions declare otherwise ; with
due regard to can. 569.
In order to fully understand this paragraph we must
examine what dominium or ownership involves.80 It is
generally defined as the right to have, hold, and dispose
freely of a corporeal thing, unless it be prohibited by
law. Thus one possesses a house or a farm. This right
is clearly distinguished from the so-called usufruct or
useful dominion. Thus a renter has the usufruct of a
house or farm, but he cannot be styled the owner.
A radical dominion must necessarily retain the essen-
tial elements of the definition of ownership or dominion,
but it has a somewhat restricted meaning. And this we
find in the limitation appended by law. Wherefore one
may have and hold and even dispose of corporeal things,
but the disposal is limited by law, or, let us say, sus-
pended, whilst having and holding are not limited. A
88 Cfr. Barbosa, Tractates Varii. taries on the Decretals, bit II, tit
s. v. " Domtnum,1' "Propnetas" r*j Hill, Ethics, ed. 8, p. 229;
(p. 188, p. 987); also the commeit- Blaclcitone-Coolcr, /, ft, II, 1 ff.
Gl Original from
OOglt UNIVERSITY QFWI5C0NSIN
278 RELIGIOUS
similar way of limiting the disposal of property is found
in minors, in whose name their guardians and tutors act,
because the law, out of due consideration for younger
people who sometimes act rashly, has restricted their
freedom of action. How far the Code wishes to apply
this restriction will be seen in § 3.
The text of § 1 says that they retain " the capacity to
acquire other property " (alia bona). This text is taken
from ''Perpcnsis," 1902, where we read: "II during
the period of simple vows other property accrues to them
by any lawful means, they retain the radical dominion
thereof, etc." The meaning evidently is, if a fortune
comes to them which they did not acquire by financial
operations, or by increasing the capital through interest,
but as it were unexpectedly (obvenire) or at least with-
out cooperation. Because " ordaining that their reve-
nues must go to increase their capital," 40 is an act of ad-
ministration, which is only allowed with the permission
of the superior, as the S. C. of Bishops and Regulars,
Nov. 21, 1902, in accordance with "Perpcnsis*' decided.*1
What has been stated under can. 569 need not be repeated
here; we will only say that for such an acquisition no
permission of the superior is mentioned, hence not re-
quired.
§ 2. Whatever a simple professed religious acquires by-
personal labor or in respect of his institute, belongs to
the institute. An ancient principle is here renewed with
the addition : " in respect of the institute." The reason
for this clause is the dnalistic status of a religious who
may act as such and as an official person. Thus a reli-
40 Thus Fapi, I. c, p. 51, who 41 Anattcia Eccl. 1904, XII, p.
thinks that for such an net no per- 348.
mission of the superiors is required;
but be seems to be wrong.
§le
£ * ^ ^ ,|„ Original from
UNIVERSITY OF WISCONSIN
CANON 580 279
%
o>
a
gious may be pastor of a parish, a Sister may be employed
as nurse in a railroad or State hospital, or as a school
teacher. Here a distinction must be made according to
can* 533> § r» 4* What he acquires for his mission or
parish or school does not belong to the religious house,
but mass stipends, fees or offerings for special lectures,
if they are not intended to benefit his church, the salary —
subtracting, of course, necessary household expenses —
the profit from selling books, literary or art products —
all this belongs to the institute of which he is a member.
Thus also the earnings of a religious who practices a
profession or performs manual labor belong to the order.
A Sister acting as nurse or as teacher must surrender her
salary to the religious community to which she belongs.
If she receives donations, she must ascertain the inten-
tions of the donors. A donation given to her personally,
for instance, for good nursing or teaching, belongs to
the religious house of which she is a member ; if the pres-
ent is made for the hospital or school, it belongs to the
latter."
§ 3 refers to can. 569, which governs the cession or
disposition of property to a trustworthy person. Mow
both these acts, the appointment of an administrator and
the disposal of the revenues, should not be arbitrarily
modified during the period of simple profession, but only
with the permission of the superior general, unless the
constitutions permit a free change. Nuns may make a
change with the permission of their Ordinary and their
regular prelate, if they arc subject to one; however, such
change, even with proper permission, may never be made
in favor of the religious institute, at least no notable part
of the property ; and all provisions made for the appoint-
41 Clement VIII, May ao, 1601 (Bizxarri, /. c, p. 531).
jle
I , Original fro m
UNIVERSITY OF WISCONSIN
280 RELIGIOUS
«
ment of an administrator and the disposal of property
become null and void after one has left the religious
institute.
a) The permission required is not qualified, but it
would seem that an express or explicit permission is
meant, since a habitual one might involve arbitrary
changes. A case in point was decided June 2, 1905. A
Sister had made a disposal of her fortune or property,
half of which she willed to her institute, and the other
half to her brother. In course of time her brother
needed a larger subsidy. Was the sister allowed to
change her will? The S. Congregation answered: Yes,
with the permission of the superioress." From this we
may also deduce what a notable part of a property would
be, viz., a little over half of the total income or revenues.
b) Nuns must have the permission of the Ordinary,
and in case of their being subject to a regular prelate,
also that of the latter.
c) After one has left a religions institute, all provi-
sions as to cession of administration and disposal of reve-
nues cease automatically. The reason for this enact-
ment is evident. Retaining the proprietorship during
the period of simple profession after leaving the insti-
tute — we suppose legitimately — the religious becomes a
lay person with all personal rights restored. The canon,
however, does not state whether the institute would have
to reimburse only the capital made over to the institute,
or also the interest. Here again constitutions and by-
laws ought to safeguard the rights of both, individual
religious and institute. The intention of the lawgiver
may be guessed from can. 531, § i, where the dowry is
mentioned. This, said canon says, must, when a religious
leaves the institute, be restored to her entirely, but with-
es S. C. RE. el RR. {AuaL Bed., 1906, XIV, p. 350).
.'Ie
/■"* ^ v .J,, Original from
UNIVERSITY OF WISCONSIN
CANON 581 281
out the interest due. Hence an enactment might be made
in the by-laws to the effect that the entire capital deeded
over to the institute must be restored without the inter-
est accruing thereto in the course of time.
s
u
renunciation of property before solemn profession
Can. 581
§ i. Professus a votis simplicibus antea nequit va-
lide, sed intra sexaginta dies ante prof eBsionem sollem-
nern, salvis pcculiaribus indultis a Sancta Scde con-
cessis, debet omnibus bonis quae actu habet, cui
maluerit, sub conditione secuturac professions, renun-
tiare.
o
§ 2. Secuta professions ea omnia statim Bant, quae
necessaria sunt ut renuntiatio etiam iure civili effectum
conscquatur.
E
Aside from special indults granted by the Holy See, a
professe<l religious of simple vows cannot validly re-
nounce his property except within sixty days preceding
solemn profession, but within this time he must renounce
in favor of whomsoever he pleases, all the property which
he actually possesses, on condition of his profession sub-
sequently taking place.
This renunciation should, after profession has been
made, be followed by the necessary civil formalities to
make it effective also according to the civil law.
The Code applies the rule laid down by the Tridentine
Council 4* concerning renunciation of all property which
a religious actually, hie el nunc, possesses. This rule
concerns only orders in which solemn vows are taken, and
only such property as the members actually possess before
solemn profession.
44 Ses*. 25, c. 16, de reg.
ogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
282 RELIGIOUS
Hence any property they may receive after solemn pro-
fession must be disposed of according to can. 582. Re-
nunciation means abdicating ownership as well as dis-
posal. Of course a last will, being made mortis causa, is
not a renunciation proper, because revocable. Donations
or bequests would seem to be the proper way of renounc-
ing property. The time runs sixty days, counting for-
ward to the prospective day of solemn profession.
Hence, if for one reason or another, solemn profession
would have to be postponed, the abdication would still
hold good. The beneficiary of a renunciation may be any
person capable of possessing, including the religious in-
stitute. But the legal form (notary public and witnesses)
is to be applied only after profession has taken place,
for neither binds by ecclesiastical law before the solemn
vows are taken.
"a
■
property received after solemn profession
Can. 582
Post sollemnem professionem, salvis pariter peculi-
aribus Apostolicae Sedis indultis, omnia bona quovis
modo obveniunt regulari:
z.° In Ordine capaci possidendi, cedunt Odini vel
provinciae vel domui secundum constitutiones ■
a.° In Ordine incapaci, acquiruntur Sanctae Sedi in
proprietatem.
• i
a
After solemn profession, likewise without prejudice
to special indults of the Apostolic See, all the property
which comes in whatever way to a solemnly professed
religious belongs to the order, or province, or house, ac-
cording to the constitutions, if the order is capable of
ownership: if the order is incapable of ownership, the
Holy See becomes the owner of such property.
>Ie
j , Original from
UNIVERSITY OF WISCONSIN
CANON 582 283
This canon distinguishes between mendicant and non-
mendicant orders.40 The former are those whose primi-
tive rule forbids ownership in common, not only in the
individual members. Such are the brown Franciscans,
the Capuchins, the Carmelites, etc. The Society of Jesus
-
has a peculiar constitution, which forbids professed
houses to possess real estate in common, whilst houses of
probation and colleges enjoy real ownership.40 Non-men-
dicant orders are the shoed Augustinians, the Benedic-
tines, the Cistercians, the Dominicans, the Praemonstra-
tensians, etc. Note that the Code says : " without preju-
dice to special indults" Such may be granted to single
institutes and cannot be discussed here. In the non-men-
dicant orders, or such as have obtained special indults
from the Holy See, the solemnly professed member, after
solemn profession, acquires everything for his institute.47
This may be the order itself, if it be centralized, or the
province, if endowed with the qualities of a corporation,
or the local house, which is chiefly the case with the Bene-
dictines and similar monastic orders and congregations.
It all depends on the respective constitutions. Nothing is
exempt from the capability of possessing property en-
joyed by such orders, or provinces, or houses. Hence
movable and immovable property, revenues and salaries,
pensions and bequests, legacies and wills, may be con-
veyed to such institutes, as well as literary and patent
rights, etc., so far as the law does not interfere.
The second clause may cause some little trouble, inas-
much as the Holy See is not recognized by our govern-
ment as a corporation, except in the Philippines and
« The Code U absolutely iitent 47 Cfr. c. n, C. 12. q. 1; c. 6,
about mendicant congregations. X, III, 35; c. 1; Clem. V, XI; cc.
« Piua V, ■ Cum indtftMiae," 3, 5, Extrav. loan. XXII, tit. 14;
Julr 7. '57i: Wemz, Ins DtcreL, Bizzarri, I. c, p. 520 ff.
Ill, n. 59' (1 ed.>.
>Ie
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
284 RELIGIOUS
Porto Rico, and the territory included in the treaty of
Paris after the Spanish-American War.48 Therefore
houses incapable of owning property, or at lease real
estate, should obtain from the Holy See a special indult
or else incorporate their property as diocesan property,
as a corporation sole or aggregate. The civil govern-
ment, of course, acknowledges no mendicants, and from
that point of view there is little difficulty. " As a sover-
eign power, a political and ecclesiastical State, the Catho-
lic Church can acquire property in the various States only
by treaty with the government at Washington." *9 This
is simply a logical consequence of the separation of State
and Church existing in this country.
a
simply professed members of religious congregations
| Can. 583
Professis a votis simplicibus in Congregationibus re-
ligiosis non licet:
i.° Per actum inter vivos dominium bono rum
suorum, titulo gratioso abdicare;
3.0 Testamentum conditum ad normam can. 569,
§ 3, mutare sine liccntia Sanctae Sedis, vel, si res ur-
gcat nee tempus suppetat ad earn recurrendi, sine li-
centia Superioris maioris aut, si nee ille adiri possit,
localis.
Those who have made profession of simple vows in
any religious congregation :
l.° May not abdicate gratuitously the dominion over
their property by a voluntary deed of conveyance ;
■
2.0 May not alter a will made according to can. 569,
a
i« Zollmai in, I. c, p. 47 f. in-- property: as a matter of fact
« K. Zollmann, ibid. This does ecclesiastical institutions own prop-
not, of course, imply that the Cath- erty, but as private civil corpora-
ollc Church is incapable of possess- tions.
ioi >gle
Original fro ni
UNIVERSITY OF WISCONSIN
"
CANON 583 285
§ 3, without the permission of the Holy See, or, if the
case be urgent and time does not admit of recourse to
the Apostolic See, without the permission of the higher
superior, or, if recourse cannot be had to him either,
without the permission of the local superior.
The first number treats of donations. A donation is a
free gift of something not due to the receiver, or, as our
text says, titulo gratmto. A donation made to show
gratitude or to recompense merits is not a donation in the
proper sense."0 Nor is a bilateral contract, e. g., a loan
or sale, a donation. For the text itself requires that an
abdication of ownership must follow the act made in
favor of another. But ownership is not lost by con-
tract, loan or sale, which involve only a change. Fur-
thermore, notice the phrase, bonorum suorum, — of their
property. This would imply one's whole fortune or prop-
erty, or at least the bulk thereof. Hence small donations
which would not entail a great loss, and donations made
out of gratitude or in acknowledgment of services ren-
dered are not forbidden.
No. 2 speaks of a last will, which takes effect only
after the death of the testator, and must, of course, be
vested with the necessary formalities. In can. 569, § 3,
the novice is admonished — it cannot be called a strict
law, as is apparent from the milder form of the subjunc-
tive (condat) — to make a will. After he has made
one, it may be changed only with the permission of the
Holy See. The reason for this ruling lies in the sacred-
ness of the last will, as well as in the fact of religious
being bound to the supreme authority more closely than
laymen. Besides, a religious being looked upon as a
minor needs to be protected in his freedom.
This permission may in urgent cases, which do not ad-
60 Reiffenstuel. III. 34. n. 5.
jle
£ * -» v -.!,» Original from
UNIVERSITY OF WISCONSIN
286
RELIGIOUS
■
mit of the delay involved in recourse to the Apostolic See,
be given by the superior general, or by the provincial,
or the local superior, if the higher superior cannot be
reached. An urgent case would be a sudden departure
from the religious congregation caused by an unforeseen
call to arms, sickness, etc. The canon affects all religious
with simple vows, whether temporary or perpetual, even
of exempt congregations. For the Code makes no dis-
tinction. On the other hand it does not affect the pro-
fessed members with simple vows of religious orders,
and hence lay brothers and clerics with simple vows be-
longing to such orders are not included.
VACANCY OF BENEFICES
Can. 584
Post annum ab emissa qualibct professione religiosa,
vacant beneficia paroecialia; post triennium cetera.
Parochial benefices become vacant after one year from
the date of any religious profession ; other benefices three
years after profession.
We suppose that the term benefice must not be pressed
too rigorously, so as to exclude parochial offices. The
canon would seem to include our country, where benefices
in the strict sense (as understood before the Code) do
not exist. A pastor who wishes to enter a religious order
cannot resign his office during the period of his novitiate,
according to can. 568. Under the Decretals 51 a vacancy
was created ipso iure by any valid profession made after
the novitiate. However, since the triennial profession
came into vogue, the vacancy was held to take place only
after solemn profession. sa This was inconvenient, since
51 C. 4. 6°. HI, 14.
B2Bened. XIV, " Ex quo," Jan.
14. 1747. The S. C. EE. et RR..
Aug. 35, 1903, ruled (for the mU-
jle
Original fro m
UNIVERSITY OF Vi-'ISCONSI
CANON 584 287
a parish would then be vacant at least four years, which
is against the spirit of the Church. Hence the aspirant
was allowed to anticipate his solemn profession. Now
the Code rules that the vacancy is to be reckoned one year
after profession, no matter whether the latter be tempo-
rary or perpetual, simple or solemn. Hence, counting
the year's novitiate and one year after the profession, the
vacancy of a parish may at most last two years. During
that time the bishop has to provide the parish with a
vicar, to be paid out of the benefice, if there be such,
or out of the usual revenues which furnish the pastor's
salary. The pastor, however, may retain or receive what
is left over and above the decent support paid to the
vicar or substitute. Of course, in special cases, which
demand the appointment of a regular pastor, the bishop
may have recourse to the Holy See (S. C. Concilii or
S. C. Rel.). A canon who is bound to attend choir serv-
ice in his church loses his share of the daily distributions
during his stay in the novitiate and for the three years of
profession, but he would not be deprived of the benefice
until three years after profession, because a canonicate
is not a parochial benefice." Neither are chaplaincies or
the offices of assistants and rectors parochial benefices.
Hence such would not become vacant until four years had
elapsed.
aionarfe* of the S. Heart of Mary) (t. is, p. 37$, ed. Parii). The
that oil residential, hence all paro- Jesuits are bound to resign after
chial, benefice* became vacaut at two years' probation. However our
the moment of perpetual profession canon does not refer to any special
{Anal. Eccl., i^oj. XI, p. 448). constitution or indulU or pro-
B3Bened. XIV, /. ft; Suarea. Dt visions — hence vidtant ipti.
Ret., tr. VII, I. V, c. 16, n. it
-
a
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
Q
,-
288 RELIGIOUS
loss of incardi nation
Can. 585
Professus a votis perpetuis sive sollemnibus sive
simplicibus amittit ipso iure propriam quam in saeculo
habebat dioeccsim.
By perpetual profession, whether solemn or simple, a
person ceases to belong to the diocese which he had as a
secular.
This canon, as also can. 115, only mentions excardina-
tion, and, judging from the lack of any quotations in
Card. Gasparri's edition, is entirely new. It refers to the
diocese to which one belonged before entering religion.
Hence the bishop no longer has a claim on a layman or
clergyman who has made his profession as a religious,
and the latter's connection with the diocese is severed.
This is true even if the institute entered by a cleric is
situated within the diocese to which he belonged. The
reason is because, as can. in says, by embracing the re-
ligious life, one ceases to be a vagabond cleric, and his
service is transferred to the institute he embraces by
perpetual profession.
invalid profession
Can. 586
§ 1. Professio religiosa irrita ob irnpedimentum ex-
ternum non convalescit per subsequentes actus, sed
opus est ut a Sede Apostolica sanetur, vel denuo, cog-
nita nullitatc et impedimento sublato, legitime emit-
tatur.
§ 2. Si autem irrita fuerit ob consensus defectum
mere internum, hoc praestito, convalescit, dummodo
ex parte religionis consensus non fuerit revocatus.
jle
£ ' ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
D
"■
CANON 586 289
§3. Si contra validitatem professionis religiosae
gravia sint argumenta ct religiosus renuat ad cautelam
sive professionem renovare sive eiusdem sanationem
petere, res ad Sedem Apostolicam deferatur.
§ i. The religious profession which is invalid by reason
of an external impediment, is not convalidated by subse-
quent acts, but must either be healed by the Apostolic
See, or a new profession made after the nullity has been
discovered and the impediment removed.
This paragraph supposes that the profession, whether
temporary or perpetual, simple or solemn, was null and
void on account of an external impediment, such as one
of the conditions mentioned in can. 572, § 1, which are
all more or less external, with the exception perhaps of
grave fear. What is to be done if an invalid profession
must be convalidated? Here is an actual case. A
pseudo-provincial admitted several novices to profession.
As he had been illegally elected, all his acts were invalid,
therefore also the professions. The religious thus in-
validly professed renewed their profession annually with
the usual words: *" If we had not yet obliged ourselves
to your Majesty, we would now bind ourselves, and
therefore renew our vows." The S. C. of Bishops and
Regulars decided (Dec. 10, 1841) that these professions
required to be " healed in the root," and the Holy See
did so, convalidating them all." Hence the quoted for-
mula of renewal in case of an external impediment is
juridically valueless.
Another mode of convalidation is that mentioned in the
second clause, 1. e\, renewal of consent. This requires
a
64 Btzzarri, /. c, p. 476 f . ; notice and declarations of the tame Con-
the dale 1841, that is to say, before gregation 1858 and if. years, and by
tacit profession had been declared the "Per^entit," 190a.
invalid by the " Neminttn Utet,"
■■d by Google
k ,1 ^ , Original from
UNIVERSITY OF WISCONSIN
290 RELIGIOUS
two conditions: knowledge of the impediment and re-
moval of the same. Hence if the profession was invalid
because of lack of age, the professed person must know
the fact and wait until the required age is reached. In
case the superior holds his office unlawfully, the profes-
-
sion must be renewed in the presence of the lawful su-
perior after the mistake is discovered. The renewal
would be more difficult if the time or place of the noviti-
ate affected the validity. For in that case the novitiate
would have to be repeated, unless the Holy See granted a
dispensation. The similarity between marriage and reli-
gious profession in this point is obvious.
§ 2. If the profession be invalid on account of a purely
internal defect of consent, it suffices for convalidation
that the consent be given, provided that consent on the
part of the institute has not been revoked. The dif-
ference between § i and § 2 consists in the fact that the
latter concerns the private, not the public welfare, be-
cause the formalities were observed, and the vow is a
personal one, while the contractual or external matter
was supposedly complied with. Here grave fear or mo-
mentary mental aberration " might enter. Therefore, if
one, after the fear has subsided and the mind has re-
turned to its normal condition, would renew his profes-
sion, for instance, together with others at the annual re-
newal, it would be valid, because this is a mere matter
of conscience ; always provided that the institute has not
in some palpable way withdrawn its consent.
§ 3. If there be serious arguments against the validity
of a religious profession, and the religious refuses, as a
measure of precaution (ad cautclam) , either to renew the
profession or to ask for its convalidation, the matter
shall be referred to the Holy See.
BB Cfr. c I, X, I, 40; c. 15, X, III, 31.
;Ie
J , Original fro m
UNIVERSITY OF WISCONSIN
CANON 586 291
The Code says " serious arguments/' because futile
and imaginary reasons Rfl should not be proposed, espe-
cially after the time for putting in the claim has elapsed.
The S. Congregation to which matters of this kind must
be referred, is, of course, that of Religious.
-
Bfl Such arise sometimes from to unreasonable claims or preten-
scriipulosity, wh.ch must be treated aions. A weighty reason would be
according to the rules given by deceit on the part of the institute,
moralists on scrupulous conscience; or physical weakness on the aide
sometimes they arise from subse- of the religious, or a serious doubt
quent dissatisfaction or a critical as to the correct observance of the
trend of mind, which must be dis- required formalities.
-
-
posed of, if possible, by resistance
.'le
% ,1,., Original from
UNIVERSITY OF WISCONSIN
TITLE XII
THE STUDIES IN CLERICAL INSTITUTES
I Can. 587
§ 1. Quaelibct clericalis religio habeat studiorum
scdcs a Capitulo general! vcl a Superioribus appro-
batas, firmo praescripto can. 554, § 3.
§ 2. In studiorum domo vigeat perfecta vita com-
munis ; secus studentes ad ordines promoveri nequeunt.
§ 3. Si religio aut provincia studiorum domos rite
instructas habere nequeat, aut si quas habet, adire,
Superiorum iudicio, difficile sit, religiosi alumni mit-
tantur vel ad recte ordinatam studiorum sedem alius
provinciae aut religionis, vel ad scholas Seminarii
episcopalis, vel ad publicum catholicum athenaeum.
§ 4. Religiosis, qui studiorum causa longe a propria
domo mittuntur, non licet in privatis domibus habitare,
sed opus est ut in aliquam suae religionis domum se
recipiant, vel, si id fieri non possit, apud religiosum
aliquod institutum virorum, vel Seminarium aliamve
piam domum, cui sacri ordinis viri praesint, quaeque
ab ecclesiastica auctoritate approbata sit.
We need not enlarge upon the text of this tide, which
forms a glorious page of our Code. Every clerical insti-
tute must have a house of studies. None is exempt from
this rule, except those that are unable to have their own
building, and these should send their students either to
392
jle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 588-589 293
-■
a
the study house of another province, or of another insti-
tute, or to the diocesan seminary, or to a Catholic uni-
versity. It is known that Pius X, /. m.t endeavored to
abolish the small seminaries in Italy because of incom-
petency of the professors and lack of good example to
the students. Of course, if a monastery maintains a
theological seminary, this is sufficient. Can. 554, § 3,
requires that only religious who lead an exemplary life
should be placed in the houses of study, which does not,
however, imply that they must be religious " cranks."
Can. 588
§ 1. Toto studiorum curriculo religiosi committan-
tur speciali curae Praefecti seu Magistri spiritus qui
corum animus ad vitam rcligiosam informet opportunis
monitis, instructionibus atque exhortationibus.
§ 2. Praefectus vel Magister spiritus iis qualitatibus
praeditus sit oportet, quae in Magistro novitiorum rc-
quiruntur ad normam can. 559, §§ 2, 3.
§ 3. Superiores vero sedulo invigilent ut ea quae
can. 595 pro omnibus religiosis pracscribuntur, in stu-
diorum domo perfcctissime observentur.
The Prefect of Studies must be endowed with the same
qualities as the master of novices ; if no such person is
available, the age limit of thirty-five need not be strictly
enforced; but lack of age may be supplied by learning,
piety, and prudence.
p
Can. 589
§ x. Religiosi in inferior ibus disciplinis rite instru-
cti, in philosophiae studia saltern per biennium et sa-
crae theologiae saltern per quadriennium, doctrinae
D. Thomae inhaerentes ad normam can. 1366, § 2, dili-
G 1 Originalfrom
OOglL UNIVERSITY QFWI5C0NSIN
294 RELIGIOUS
gcntcr incumbant, secundum instructiones Apostolicae
Sedis.
§ 2. Studiorum tempore magistris et alumnis omcia
ne imponantur quae a studio eos avoccnt vel scholam
quoquo modo impediant ; supremus autem Moderator et
-
in casibus particularibus alii quoque Superiores pos-
sunt pro sua prudcntia eos a nonnullis communitatis
actibus, etiam a choro, praesertim nocturnis horis,
eximere, quoties id studiis excolendis necessarium vi-
dcatur.
§ 1 requires that religious, before taking up philosophi-
cal studies, should be duly instructed in the lower
branches. This enactment is less severe than the decree
a
of the S. C. of Religious, of Sept. 7, 1909.1 Our Code
does not determine how many years the academic and
how many the collegiate course must comprise. It
merely requires (can. 1364, 3.0) that in the smaller semi-
naries (colleges) the course of studies pursued must be
adapted to the general education and the clerical state
of the province or region in which the students are to
exercise the sacred ministry. Neither does the Code ex-
clude private study of the humaniora, because only the
theological course must be made in a school properly so-
called (can. 976, § 3). Therefore, based upon the rules
of sound interpretation, we believe that the necessary
knowledge may be supplied by private study, as far as
the college training is concerned. The philosophical
course must last at least two years. The method, doc-
trine and principles should be taken from St. Thomas
Aquinas. But as the Angelic Doctor has not left us a
manual of philosophy proper, other manuals may be used
that are based on the " principia Divi Thomae" no mat-
1 A. Ap. S., L 701 ff.
D
".
gle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 589
295
-■
tcr whether they be Molinistic or Thomistic in tendency.
The theological course must comprise four years,
that is, strictly four years, not three with shortened va-
cations. Each of these four study years should last nine
months, neither more nor less.2
In theology, too, the "ratio, doctrina et principia" of
St. Thomas must be followed, and it is the intention of
the Holy See that the "Sutnma Theologica" should, if
possible, be used as text-book. However, speaking from
passive and active experience, we humbly submit that it
is almost impossible to comply with this praiseworthy in-
tention. The bulky commentaries needed to elucidate
the " Summa " would require ten years of study, not to
mention other branches which are equally necessary now-
a-days. We may also be permitted to say, as a canonist,
that the study of Canon Law, now that the new Code is
in force, requires more time than was formerly given
to it. If the moralists will strictly stick to their subject
and abstain from grappling with topics properly belong-
ing to Canon Law, we believe the Code could be mastered
in a three years' course, with four hours a week. Moral
Theology, if limited to its proper sphere — i. e.t the fun-
damental principles, the Commandments, including the
treatise de iustitia et iure, and the virtues, could be
taught in a three years' course, with three hours a week.
This is our opinion, for which we claim no authority, but
which the legislator, we believe, would not reprimand.
The next paragraph (§ 2) of can. 589 is to be recom-
mended to religious superiors for their pious and effi-
cacious consideration. Overburdening professors and
students is somewhat similar to overtaxing the stomach.
2 S. C. Ret, Sept 7. »goq. HI
(A. Ap. S„ 1, 70a); this rule still
holds, May 31, 1910 (A. Ap. S.,
II, 449 f.) and is referred to by
Cardinal Uasparri.
►ogle
Original from
UNIVERSITY OF V/ISCONSI
296 RELIGIOUS
Proficiency and progress can result only from quietly con-
ducted and duly limited courses of study. Non multa,
sed multum!
yearly examinations
Can. 590
Religiosi sacerdotes, iis tantum exceptis qui a Supe-
rioribus maioribus gravem ob causam fucrint exempti,
aut qui vel sacrarn theologiam, vel ius canonicum vcl
philosophiam scholasticam doceant, post absolutum
studiorum curriculum, quotannis, saltern per quin-
quennium, a doctis gravibusque patribus examinentux
in variis doctrinae sacrae disciplinis antea opportune
designatis.
This canon provides that all religious who are priests
must pass an annual examination for a period of five
years after completing their theological course. This
examination is to cover all the various branches of sacred
theology, — the specific matter to be pointed out before-
hand— and must be held in the presence of learned and
grave fathers. The law exempts from these examina-
tions those who are engaged in teaching dogmatic or
moral theology, canon law, and Scholastic philosophy.
The higher superiors may exempt others for weighty
reasons. This latter clause practically upsets the inten-
tion of the legislator. For weighty reasons may always
be found, especially in a busy country like ours.
monthly conferences
Can. 591
In qualibet saltern formata domo, minimum semel in
mcnse, habeatur solutio casus moralis et liturgici, cui,
si Superior opportunum cxistimaverit, addi potest
oogle
/ * ^ ^ %\r* Original from
UNIVERSITY OF WISCONSIN
CANON 591
297
-
scrmo de re dogmatica coniunctisve doctrinis ; et omnes
clcrici profcssi qui studio sacrae theologiae operam
navant aut illud expleverunt et in domo degunt, assi-
stere tenentur, nisi a'.iud in constitutionibus caveatur.
■
In every house in which there are at least six members,
theological conferences must be held regularly once a
month. We reasonably suppose that the legislator docs
not object to omitting these conferences in the summer
vacation time, when many are usually absent, while others
are ailing or exhausted, and still others suffering from
the heat. At these conferences moral or liturgical cases
are to be solved and a discourse delivered on dogmatical
or kindred subjects. These meetings must be attended
by all the professed clerical students of theology and by
those clerics present in the house who have already fin-
ished their course,8 unless the constitutions prescribe
otherwise. The holding of conferences is a strict duty
and has always been inculcated. Attention must be paid
also to can. 131.
s This rule include* those who
have been ordaned. We believe
that the conferences prescribed in
can. 131 may licitly and reasonably
be combined with these. There-
fore all priests who have obtained
faculties for hearing confessions
must be present. Besides, if we
interpret the term ctcrici professi
strictly, all priests or professed
clerical members (not lay-brothers)
must attend these conferences.
gle
Original from
UNIVERSITY OF WISCONSIN
■
TITLE XIII
THE OBLIGATIONS AND PRIVILEGES OF RELIGIOUS
CHAPTER I
the obligations
Can. 592
Obligationibus cornmunibus clericorum, de quibus
in can. 124-742, etiam religiosi omnes tenentur, nisi ex
contextu sermonis vel ex rei natura aliud constet.
The common obligations of clerics, as laid down in
can. 124-142, also bind all religious, unless it appears
otherwise from the context of the law or from the nature
of the case.
These obligations have, we trust, been sufficiently ex-
plained in Vol. II. Note that some of them bind only the
clergy, for instance, can. 126 concerning retreats, 120
concerning promptness in accepting the sacred ministry,
can. 129-131 regarding study, annual examinations, and
conferences, can. 135 respecting the recitation of the
Breviary, 143 f. governing residence and incardination.
These do not apply to female religious. Some of them
do not even concern male religious as such, e. g.f can.
128, which is not intended for clerical religious who have
made perpetual vows, because can. 585 excardinates them,
and unless in case of strict necessity the bishop is not
entitled to compel exempt religious to assume the min-
istry. Other obligations, for instance, as to wearing the
298
I Original from
jr^OOglL UNIVERSITY OF WISCONSIN
D
"-.
CANON 593 299
clerical dress (can. 126), if this is not distinct from the
religious habit, abstaining from worldly and prohibited
occupations and amusements (can. 137, 138, 139, 140, 141,
142) oblige all religious of both sexes.1 Can. 133, con-
cerning housekeepers, obliges religious who are parish
priests or act as such.
Can. 593
Omnes et singuli religiosi, Superiores aeque ac sub-
diti, debent, non solum quae nuncuparunt vota fide-
liter integreque servare, sed etiam secundum regulas
et constitutioncs propriae religionis vitam cornponere
atque ita ad perfectionem sui status contendere.
a
All religious, superiors as well as subjects, are bound
not only to observe faithfully and entirely the vows they
have taken, but also to order their lives according to the
rules and constitutions of the institute to which they be-
long, and thus tend to the perfection of their state.
The legislator exhorts all religious to live the life re-
quired by their state. Superiors are not exempt from
the observance of the vows, although with them the vow
of obedience is seemingly in abeyance. Yet they too
are bound by the rule and the constitutions, from which
they are not allowed to deviate except in so far as their
office or dignity requires, and in so far as they could
exempt their own subjects. Besides the lower superiors
owe obedience to the higher, and the higher to the Pope
and his lawful representatives. The Code binds them all
to the fullest extent, unless privileges, sound interpreta-
tion, or approved constitutions grant them the right of
dispensing or changing in certain cases.
1 Benedict XIV, Apostolicum ministerium. May 30, 1753, | 18
(applying chiefly 10 England).
§le
£ " ^ v -As* Original fro ni
UNIVERSITY OF WISCONSIN
3<x> RELIGIOUS
j
a) As to the power of dispensation, a distinction must
be made between exempt and non-exempt institutes.
The superiors of an exempt religious institute enjoy this
power to the same extent as diocesan Ordinaries and, like
these, are bound by the regulations laid down in can. 81.
Can. 1245 also has a place here because it refers directly
to exempt clerical religious. Hence regular superiors of
exempt institutes may dispense not only single members
but the whole community from the law of fast and absti-
nence. Over non-exempt religious, the Ordinary or
bishop in whose diocese the house is located, exercises
this power. As to the dispensations required for ordi-
nation, religious superiors have no power, because what-
ever touches that subject belongs to the bishop.2
Religious superiors, whether exempt or not, may dis-
pense single members, but not the whole community as
such, at least as a rule, from the observance of the pre-
cepts contained in the rule or constitutions. However,
they may, at times, because the constitutions themselves
grant them that right, dispense the whole community
from silence, or from a fast prescribed by the constitu-
tions only and not by common law, and from similar ob-
ligations.
As to dispensation from penalties inflicted by the law
(see Book V) and from irregularities, the superiors of
exempt religious enjoy no more power than diocesan Or-
dinaries, apart from certain privileges granted to regu-
lars concerning irregularities. With regard to penalties
inflicted by the rule and constitutions, the superior gen-
eral,3 but not the inferior prelate, may relax them, with-
out prejudice to the constitutions.
"This is evident from the canons Ordinary it not satisfied with hit
on ordination; whether the religious statement,
superior may declare one free from ■ Or the nbhot of every •utono-
irrtgularity matters little if the mous monastery.
ogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 593 301
Concerning the dispensation from vows, note that the
religious vows cannot, per se, be dispensed from by any
superior. But the superior of a clerical exempt institute
may dispense from vows that go beyond the three sub-
stantial vows, whilst the Ordinary has the same power
with regard to non-exempt religious and vows not re-
served.*
b) As to the changing or commutation of vows, or
promises made in the form of vows, the Code says that
a change into a lesser or less perfect work may be made
by the one who has the power of dispensing, provided,
of course, the vow be not one of those reserved.0
In cases in which the superiors are entitled to dispense
their subjects, they may also dispense themselves,* al-
though it is wisely added by canonists that they should
not do so except through their confessors.7
Finally, the superiors of a religious institute may not
change the rule or constitutions which are approved by
the Holy See. Hence any substantial change of the same
must be submitted to the supreme authority. However,
this does not exclude the admission of usages which do
not affect the substance of the rule and the constitutions.
On the other hand it is also certain that a mitigation in-
troduced by custom and approved by the Holy See cannot
be abolished except by the Holy See, although a general
chapter could adopt a stricter reformation. Should the
Holy See formally impose the abolition of such a mitiga-
tion, the religious would be obliged to obey, though in
that case members who made profession under the miti-
gated rule or constitutions could scarcely be obliged to
accept the reformation, at least if new austerities were
4 Cfr. can. 1313. a). Concerning the power of ab-
5 Can. 1314. solution we refer to Book III
6 Can, aoi, \ 3. (Confession) and Book V (Ccn-
T Cfr. Tiatua M., I, p. 571 (ed. sures).
ogle
k ,|,, Original fro m
UNIVERSITY OF WISCONSIN
302 RELIGIOUS
imposed,8 for they had no intention to take upon them-
selves such " extras."
This leads to the consideration of the question what
the vow of obedience means for all religious.
(i) The vow of obedience is a promise made to God,
by which one obliges himself to obey the religious insti-
tute one enters and its lawful superiors.
(2) The extent of this vow is commensurate with the
rule and the constitutions, but goes no further. How-
ever, not only what is explicitly stated in the rule and
constitutions falls under the vow of obedience, but also
all acts which are necessary for the preservation of the
institute itself and for the observance of the rule or con-
stitutions. Thus mutual charity and fraternal obliga-
tions, charges and offices of the institute, just penalties
and appropriate and moderate exercises, though not ex-
pressly stated, oblige by reason of obedience. To read
more into the rules and constitutions is absurd, because
the religious must have an objective norm. Besides no
religious is bound to obey, by reason of the vow, if his
superior commands something foolish, indifferent or im-
possible, or something which would cause serious damage
or danger to the religious. On the other hand religious
should obey their superior when he commands a reason-
able internal act, for instance, the application of a Holy
Mass • for a certain purpose.
There is a limit to religious obedience set by the com-
mon law of the Church. As those inferior to the Ko-
fi V. Bachofcn, Compendium I uris observance; thus a superior might
Rciul, p. 129 f.; p. 2J4. prohibit saying the office privately
* Piatu* M., I, p. _-88. How- during * conventual miisa cantata,
ever it ii evident that the internal if the singing in common or cere-
act must in some way he connected monies would suffer thereby; other*
either with the vows or t??e regular wise there would he neither a moral
discipline and the rule or const!- nor a juridical reason for such a
unions, which all tend to external prohibition.
".
>Ie
Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 594 303
man Pontiff have no power, in general at least, against
the common law, so neither is a religious bound to obey
a superior commanding anything opposed to that law.
Neither is a religious obliged to obey a superior who is
notoriously deprived of his office,10 excommunicated or
suspended."
life in common and poverty
Can. 594
§ 1. In quavis religione vita communis accurate ab
omnibus servetur etiam in iis quae ad victum, ad ve-
stitum et ad supellectilem pertinent.
§2. Quidquid a religiosis, ctiam a Superioribus,
acquiritur ad normam can. 580, § 2, et can. 582, n. 1,
bonis domus, provinciae vel religionis admisceatur, et
pecunia quaelibet omnesque tituli in capsa communi
deponantur.
§ 3. Religiosorum supellex paupertati conveniat
quam professi sunt.
§ 1. In every religious institute all must carefully ob-
serve the common life even in matters of food, clothing,
and furniture.
§ 2. Whatever is acquired by die religious, including
the superiors, according to can. 580, § 2, and can. 582,
n. 1, must be incorporated in the goods of the house, or
of the province, or of the institute; and all money and
titles shall be deposited in the common safe.
§ 3. The furniture of the religious must be in accord-
ance with the poverty of which they make profession.
St. Benedict in his Rule (c. 1) mentions four kinds of
monks, two of whom were a pretty bad lot, sara-
bites and the gyrovagi, loafers or ramblers going about
lOPUtua M., II, 639. 11 Cfr. can. 2264, etc.
>Ie
J ^ Original fro rn
UNIVERSITY OF WISCONSIN
3o4 RELIGIOUS
in the garb of religious. In the twelfth century Inno-
cent II tried to do away with all kinds of religious who
would not lead a common life. What he meant by that
phrase is explained by the words : M in the church, in the
refectory, and in the dormitory." l2 These three locali-
ties indicate almost perfectly the conditions of community
life, and no doubt the Code has these three places in view.
The church or chapel unites the religious in the praise
of God, the dining-room in fraternal charity, and the
dormitory in peaceful rest. Of course, recreation, which
is but another sort of rest, is also included. Hence an
ostentatious avoidance of the recreation-room would
show a lack of community spirit.
The Code mentions three things in particular which
pertain to a life in common: food, dress, and furniture.
Of course this is intended only for healthy members
of the community, because reason dictates that the sick
and delicate require special care, and the Decretals pro-
vided for emergencies.13 A decree of the S. C. EE. et
RR. also mentions uniformity in the employment of
medicine and in traveling.14 However, as to medicine
we must reckon with modern methods and leave particu-
lars to the physicians. Only extravagance must be
avoided. Travelling, too, is to be judged in the light of
modern conveniences (automobiles, etc.), and according
to the custom of the country, which, with us, permits the
use of a sleeping car for a night's rest.
§ 2 says that whatever is acquired by the religious, in-
cluding the superiors, either by personal effort or in the
form of presents given for the benefit of the house, or of
izC. 2$, C. 18. q, 2. The S. C. where the common life 11 observed
F.E. et RR.. April zj, 1851, forbade (Bizzari, /. c, p. 852).
superior*, who had not professed a ia C. 6, X, III, 35; cfr. Reg. S.
life in common, to reside in a house Bened.. c. 37.
U Cfr. Bizzarri, /. e., p. 44.
* I Original fro ni
,008lt UNIVERSITY OF WISCONSIN
CANON 594 3^5
the province, or of the institute (can. 580) belongs to
the community. Money or property may also come by
inheritance or donations inter vivos (can. 580, i°). All
such acquisitions go into the common treasury.
Is a religious entitled to refuse a donation? A free
donation to which the religious is in nowise entitled, he
may refuse, because it depends on mere acceptance, which
is not an act of dominion. He would, however, offend
against charity by refusing a donation if the house or
institute to which he belongs were needy. A religious
would commit a sin against the vow of poverty if he
would refuse a bequest or legacy coming to him by in-
heritance, or to which he was otherwise entitled, because
he would refuse what belonged by right to his institute,16
supposing the institute to be capable of possessing prop-
erty.
Another question arises, on account of a decision of
the S. C. ReJ., July 13, 1913. It was asked, whether a
religious of cither solemn or simple vows, who had writ-
ten a book during the time of his profession, was allowed
to donate or alienate the manuscript quocumque titulo?
The answer was " Negative." " In order to understand
this decision, — which caused some surprise, — it must be
remembered that an author, whether he be professed with
simple or solemn vows, has full proprietorship over his
manuscripts as long as they remain in his hands, so that
no superior can compel him to have them published or
otherwise make use of them. A manuscript is intel-
lectual property to which the author has a natural right
This right is not denied by that decision. But if the
author would donate said manuscript to another, an out-
sider not a member of his institute, or sell it for any con-
sideration, his ownership would cea'se, because donation
16 Putin M., I, p. 244. *• A. Ap. S.. V, 166.
C' -w^nta Original from
lOOglt UNIVERSITY QFWI5C0NSIN
306 RELIGIOUS
or alienation are acts of dominion. However, this de-
cision is not in keeping with some papal constitutions,
especially that of Clement VIII, " Rclujiosae congrcga-
tiones," which permits religious to donate manuscripts
one to another, and that of Benedict XIII (" Postulat")
which allows religious who are promoted to the episco-
pate to take their manuscripts with them.17 These con-
stitutions are certainly as weighty as any particular de-
cision of a Roman Congregation. We believe the reason
for that decision was to ward off the danger of avoiding
the necessary imprimatur, which is required especially for
religious.
No doubt may be raised as to the right of a religious
community to the royalties and copyrights belonging to
its members under the laws of the country.
With regard to paintings and sculptures, canonists "
draw a distinction: if the material was furnished by the
community, the product belongs to the latter, not to the
individual artist; but if an outsider has furnished the
materials (paint, canvas, brushes, marble, stone, silver,
gold, etc.), the work belongs to him.
The next clause touches the common treasury, and in-
directly the peculiutn. Where the common life is ob-
served as it should be, this rule is safe. But niggardly
and miserly treatment of religious is the quickest road to
private property (peculium). There is no one thing for
which the founders of the early religious orders and the
laws of the Church had greater horror than this.19 And,
IT Piatua M-, I, p. 241- As long overthrown by one particular de-
al no other decisions are forthcom* ctsion.
ing, we cling to the old scntentia J» Piatus M., I, p. 243; what we
cvmmuni ..>> i, based ai it is on say in the text is to be taken in the
papal constitution*, which allowed lense that the material would be
full possession of manuscripts to the of considerable value.
ruthor; the natural law cannot be u Reg. S. Binei., c. 55: cfr. c.
% (' -., ,,,| > Original from
Gi Original troni
UNIVER5IW OF WISCONSIN
-■
CANON 595 307
indeed, a peculium of which the superior knows nothing
and over which he has no control, is incompatible with
the vow of poverty, supposing, of course, that the reli-
gious are treated fairly. On the other hand, the prac-
tice of having a peculium in common, with the permission
of the superior, such as exists here and there in Europe,
where it was brought about by the civil government, can-
not be rejected as unlawful or against the Code, though,
strictly speaking, it is not in conformity witb the spirit
of poverty.
Can. 595
§ 1. Curent Superiores ut omnes religiosi:
x.° Quotannis spiritualibus exercitiis vacent;
a.0 Legitime non impediti quotidie Sacro intersint,
oratior.i mentali vacent, et in alia pietatis officia, quae
a regulis et constitutionibus praescripta sint, sedulo
incumbant ;
3." Ad poenitentiae sacramentum semel saltern in
hebdomada accedant.
§ 2. Superiores suos inter subditos promoveant fre-
quentem, etiam quotidianam, sanctissimi Corporis
Christi receptionem ; frequens autem, imo etiam quoti-
dianus accessus ad sanctissimam Eucharistiam religio-
sis rite dispositis libere pateat.
§ 3. Si autem post ultirnam sacramentalem confes-
sionem religiosus communitati gravi scandalo fuerit aut
gravem et externam culpam patraverit, donee ad poeni-
tentiae sacramentum denuo accesserit, Superior potest
eum, ne ad sacram communionem accedat, prohibere.
§ 4. Si quae sint religiones votorum sive sollemnium
11, C. 12, q. 1 (St. Aag.); c. 25, be buried in non-consecrated ground,
C. 18, q. 2; cc. 2, 4, 6. X, III, 35- or his body, if possible, to be ex-
The religious who after death was humed.
found to have had property, was to
oogle
% ,|rt Original fro m
UNIVERSITY OF WISCONSIN
Q
308 RELIGIOUS
sive simplicium, quarum in regulis aut constitutioni-
bus vel etiam calendariis communiones aliquibus die-
bus affixae aut iussae reperiantur, hae normae vim
dumtaxat directivam habent.
This canon draws the attention of superiors to some
special obligations of piety. They should take care :
§ 1. That all the religious make an annual spiritual
retreat; that those not lawfully excused daily assist at
Mass and faithfully perform the other exercises pre-
scribed by the rule and constitutions ; and that they go to
confession at least once a week.20
§ 2. Superiors should promote amongst their subjects
frequent, even daily reception of Holy Communion; and
liberty must be given to every properly disposed reli-
gious to approach frequently, even daily, die Most Holy
Eucharist. Of this exhortation enough was said and
written — though not always with due regard to histori-
cal facts — when the decree of Pius X, " Sacra Triden-
tina Sytwdus" was promulgated, Dec. 20, 1905. We
may note that this decree need no longer be read at table,
as its substance is embodied in the Code.*1
§ 3. If a religious has, since his last confession, given
grave scandal to the community, or committed a serious
external fault, the superior can forbid him to receive
Holy Communion until he shall have again approached
the Sacrament of Penance. Note the two different
clauses : grave scandal and serious external fault. The
two are not necessarily connected. To stay away from
the common exercises without excuse or reason may give
scandal and yet not involve a serious fault. To strike a
superior or co-religious might be grievously sinful and
20 We believe that the custom of tolerated, if the members are al-
foing to confession every other towed to go oftener.
week in large communities may be ai Cfr. can. 509, |j.
* I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 596
309
yet, if done quietly, not cause grave scandal. Still, in
both cases the superior would be entitled to forbid the
religious to approach the Sacred Table. This is a ruling
taken from the decree " Quemadmodem" Dec. 17, 1890,
which, by the way, has now lost its penal sanction.
§4. If in any institute, whether of solemn or simple
vows, the rules or the constitutions or even the calendars
assign or prescribe certain fixed days for the reception
of Holy Communion, such regulations are to be regarded
as merely directive.
This paragraph is taken from the decree on frequent
communion, " Sacra Tridentina" and means that no real
obligation can be derived from said regulations, and hence
the superiors must not urge their observance in virtue
of the vow of obedience.
THE RELIGIOUS HABIT
Can. 596
Religiosi omncs proprium suae religionis habitum
def erant turn intra turn extra domum, nisi gravis causa
excuset, iudicio Superioris maioris aut, urgente neces-
sitate, etiam localis.
All religious should wear the habit of their institute
both inside and outside the house, unless a weighty reason
excuses them, according to the judgment of the higher,
or, in urgent cases, of the local superior. This rule is
taken from the Decretals and the Council of Trent." It
has, as is well known, been modified for our country,"
and missionary countries generally. On days when the
mercury occasionally shows more than 100 degrees, the
contrary custom may be adopted without misgiving.
HC »; 6*. HI, M; «- *. Cl*m. nCone. Bolt. III., n. 17; efr.
Ill, 1; Trid., sets. as. c. ig, de rcg. can. 136.
>Ic
Original fro m
UNIVERSITY OF WI5C0NSI
3io RELIGIOUS
ENCLOSURE
The nature of coenobitism requires a solitary or re-
tired mode of life. Hence the saying, " As a fish cannot
live outside the water, so neither can a monk live outside
the monastery." M St. Benedict wished to see the monas-
teries built in such a way that the monks would have no
excuse to go outside." St. Gregory the Great expressed
to a certain Abbot (Valentine) his surprise that women
entered his monastery indiscriminately and called upon
the monks to be god-fathers of their children. He for-
bids the continuation of this lax practice absolutely. M
The decree of Gratian as well as the well known chapter
■n
" Periculoso" of Boniface VIII insist upon enclosure,
especially of convents of nuns, and the Tridentine Coun-
cil enforced these laws vigorously.27 Later papal con-
stitutions insisted upon them and admitted a mitigation
only in favor of founders and ruling princes and prin-
cesses." (Cfr. Pius IX, " Apostolicae Sedis" Oct. 12,
1869.) Yet in spite of the endeavor of Pius V to put all
female congregations under the same strict laws, prac-
tice and theory soon began to distinguish between papal
and episcopal enclosure. The former, or strict, enclosure
is imposed only on regulars, or, more precisely, those
institutes whose members take solemn vows, especially
the female orders. The episcopal enclosure is less strict
and open to a wider interpretation. The penalties in-
flicted by law for a violation of the papal may not be
applied to the episcopal enclosure. This premised, the
Code first treats of
24 C 8, C r6, q. I, which must, 27 Cfr. c. i. C. 16, q. i; c. un.
however, be taken with a grain of 6", III, 16; Trid., tesa. 35, c. 5,
•alt. do 1 eg.
2ft Reg., c. 66. 28 See the quotationi in Card.
-
2fl Rtgist. Grgg. M., I, 40 (ed. Guparri's edition of the Code.
Hartmacn-Ewald).
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 597
3"
PAPAL ENCLOSURE
Can. 597
§ i. In domibus regularium sive virorum sivc muli-
erum canonice constitutis, etiam non formatis, servetur
clausura papalis.
§ a. Lege clausurae papalis amcitur tota domus
quam communitas regularis inhabitat, cum hortis et
viridariis accessui religiosoram reservatis ; excluso,
praeter publicum templum cum continente sacrario,
etiam hospitio pro advenis, si adsit, et collocutorio,
quod, quantum fieri potest, prope ianuam domus con-
stitui debet.
§ 3. Partes clausurae legi obnoxiae patenter indi-
centur; Superior is vero maioris vel Capituli generalis
secundum constitutiones, aut, si agatur de monasterio
monialium, Episcopi erit clausurae fines accurate
praescribere aut legitimis de causis rnutare.
§ 1 . In canonically erected houses of regulars, even
though they are not formatae, of men as well as women,
the papal enclosure must be observed. When a house is
canonically erected, must be deduced from the approval
or permission of the Holy See and of the Ordinary. It
is evident that before the regulars move in, there is no
enclosure. The text says that even in houses which are
not formatae, i. e., have less than six members, the en-
closure must be observed. This must, of course, be un-
derstood only of a canonically erected house. A so-called
priory or exfositura or grangia ( farm house or summer
resort, villa, villcggiatura) is not a canonically erected
house, even though inhabited by more than six members
at a time.
§ 2. The law of papal enclosure affects the whole house
*Ie
Original from
UNIVERSITY OF WISCONSI
312 RELIGIOUS
St
inhabited by the regular community, including the or-
chards and gardens reserved to the religious, but not
the public church with its sacristy, the guest-house,
if there be one, and the parlor, which latter should, where
possible, be placed near the entrance to the house. Note
carefully the wording of the text, because it mitigates
the opinion of some authors.29 The sacristy is exempt
from enclosure, even if it has two doors, of which one
leads to the enclosure, provided it immediately adjoins
the church. Should another room separate it from the
church, the enclosure would have to be applied. As to
the gardens and viridaria, the text does not require that
x wall or hedge should separate them from the enclosure
proper ; it suffices that they be so reserved to the regulars
that no one else is allowed access. Viridaria, properly
opeaking, are places set with trees and plants, hence or-
chards, parks, etc., also places for games. Whether these
fall under the law of enclosure must be determined by
§ 3. The parts of the house subject to the la7v of en-
closure must be clearly indicated; it pertains to the higher
superior or to the general chapter according to the con-
stitutions, or, in the case of a monastery of nuns, to the
Bishop, to determine exactly the limits of the enclosure or
to modify them for lawful reasons. This paragraph
gives a wide scope to the superiors. However, it is evi-
dent that no superior may change the boundaries of the
enclosure ad hoc, i. c., for a case of emergency, for in-
stance, to introduce a party into certain rooms, in order
to evade the canonical penalty.
Once fixed, the boundaries must remain, unless cogent
reasons make a change lawful. Besides, the boundaries
» Cfr. Kcrrarii. Prompta Bibtiotheca, s. v. Convenes, art. Ill,
n. 9 ff.
Q
jle
^ ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 598
313
must be clearly indicated, not only to the regulars them-
selves, but also to outsiders, for instance, by a sign in-
scribed, " Private Entrance " or " Positively No Admit-
tance." The superiors and officials should carefully see
to it that no freedom of way or servitude arises from al-
lowing strangers to walk over the private property of
the community. This might cause trouble and unneces-
sary lawsuits.
enclosure of male religious
Can. 598
§ 1. Intra regularium virorum clausuram ne adnait-
tantur mulieres cuiusvis aetatis, generis aut condi-
tionis sub quovis praetextu.
§ 2, Eximuntur ab hac lege uxores eorum qui su-
premum actu tenent populorum principatum, cum
comitatu.
§ 1. Into the enclosure of male regulars women of
whatever age, class, or condition may not under any pre-
text be admitted.
§2. From this law are exempt the wives of actual
rulers of states with their retinue.
The text excludes all members of the female sex, in-
cluding children, which latter it had been customary to
admit. What genus, which the authorized translation
renders by " class," means, -is not so easy to determine.
It may signify birth, family, but also kin, and thus have
the meaning of descent or blood relationship. Thus in-
terpreted, even the female relatives of regulars are ex-
cluded. If it is taken to mean birth it would refer to
nobility ; but this seems to be included in conditio.
Conditio may signify social status or position, rank, pro-
oogle
Original from
UNIVERSITY OF WISCONSI
314 RELIGIOUS
fession, office. No matter how " blue-blooded " a person
may be, if a woman,30 she is excluded.31
§ 2 makes one exception, viz., in favor of the wives of
actual rulers. There is little danger that any community
of regulars in this country will receive such a visit. The
President's wife, and the governor's wife, we are sorry
to say, are not included in this privilege, because their
husbands are not actual rulers in the commonly accepted
sense of the word. If the wife of a European monarch
should visit a monastery in our country, the law would
admit her, because the text does not limit the privilege to
their own country.
college or school enclosure
Can. 599
§ i. Si domus regularium viroruxn adnexum habeat
convictum pro alumnis internis vel alia opera reli-
gionis propria, separata saltern aedis pars, si fieri pos-
sit, religiosorum habitationi reservetur, clausurae legi
subiecta.
§ 2. Etiam in loca extra clausuram alumnis externis
aut internis vel operibus religionis propriis reservata,
personae alterius sexus, nisi aequa de causa et de Su-
perioris licentia, ne admittantur.
§ i. When a house of male regulars has annexed to it
a college for boarding pupils, or for other works proper
to the institute, a separate part at least of the house
should, if possible, be reserved for the habitation of the
religious, and subject to the law of enclosure.
§ 2. Even to places outside the enclosure reserved for
extern or intern pupils or for works proper to the insti-
ao Hermaphrodites of the male 1566: Benedict XIV. Regularu dis-
sex prevailingly, might he admitted, ciplinac, Jan. 3, 174a.
ai Pius V, Regularium, Oct 14.
^le
^ ,| ., Original from
UNIVERSITY OF WISCONSIN
CANON 600
3*5
tute, persons of the other sex should not be admitted ex-
cept for a just reason and with the permission of the
superior.
This enactment sounds more like a guiding norm — " if
possible " — than a strict law, and hence it would be un-
eanonieal to apply the full vigor of papal enclosure to
these institutes.
PAPAL ENCLOSURE OF NUNS; ADMISSION OF OUTSIDERS
Can. 600
Intra monialium clausuram nemo, cuiusvis generis,
conditionis, sexus, aetatis admittatur sine Sanctae
Sedis licentia, exceptis personis quae sequuntur:
i.° Ordinario loci aut Superiori regulari, monaste-
rium monialium visitant-bus vel aliis Visitatoribus ab
ipsis delegatis licet clausuram ingredi dumtaxat in-
spectionis causa, cautoque ut unus saltern clericus vel
religiosus vir maturae aetatis eos cornitetur;
2.0 Confessarius vel qui eius vices gerit potest, cum
debitis cautelis, ingredi clausuram ad ministranda
Sacramenta infirmis aut ad assistendum morientibus;
3. ": Possum clausuram ingredi qui supremum actu
tenent populorum principatum eorumque uxores cum
comitatu; itemquc S. R. E. Cardinales;
4.0 Antistitae est, adhibitis debitis cautelis, ing res-
sum permittere medicis, chirurgis, aliisque quorum
opera sit necessaria, impetrata prius saltern habituali
approbatione ab Ordinario loci; si vcro neccssitas ur-
geat ncc tempus suppetat approbationem petendi, haec
iure praesumitur.
No one, of whatever class, condition, sex or age, may,
without papal permission, be permitted within the enclo-
sure of nuns, except the following persons:
sd by GoOgle
Original from
UNIVERSITY OF WISCONSIN
3i6 RELIGIOUS
i.° The canonical visitator or his delegate, who must
be accompanied by a clergyman or religious ;
Q
2.° The confessor or his substitute, to administer the
sacraments to the sick or to assist the dying ;
3.0 Rulers of states with their wives and suite, and
also cardinals ;
4.0 After taking due precautions, the superioress may
permit the physician, the surgeon, and others whose work
is necessary, to enter the enclosure, having previously
obtained at least the habitual approval of the local Ordi-
nary, which permission may be presumed in cases which
suffer no delay.
Note the difference between the papal enclosure of
regulars and that of nuns. The latter admits not even
women. The so-called cducande (pupils) were admitted
under a papal permission granted to that effect.
The " debitae cautelac " or precautions concerning con-
fessors provide that a religious must be accompanied by
another religious, whereas a secular priest needs no com-
panion, but must wear stole and surplice. As to laymen,
they must be of good moral character, and should not
tarry within the enclosure before sunrise or after sunset.82
This rule, of course, is not always applicable to physicians
and surgeons.
D
duty of nuns to keep within their enclosure
Can. 601
§ 1. Nemini monialiurn liceat post professionem
exire e monasterio, etiam ad breve tempus, quovis
praetcxtu, sine speciali Sanctae Sedis indulto, excepto
BOCfr. Greg. XIII, " Deo So- ofen. Compendium luris Reg., p.
eris." Dec. 30. 157*: Alexnmlrr 163 ff.
VII, "Felici," Oct. 20, 1664; Bach-
§le
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 602
317
casu immincntis periculi mortis vel alius gravissimi
mall
§ 2. Hoc periculum, si tempus suppctat, scripto
recognosccndum est loci Ordinario.
No nun, after profession, may, under whatever pre-
text, leave the monastery even for a short time, without
a special papal indult, except in the case of imminent
danger of death or other very serious evil; and this dan-
ger, if time permits, must be recognized as such by the
local Ordinary in writing.
The Code almost verbally rehearses former laws,"
which seem somewhat rigorous to modern students, but
were most reasonable. Danger of death would be a fire
or threatening collapse of the building, a flood, devasta-
tion brought about by war, danger of defloration, etc. A
Sister suffering from a contagious disease may leave the
convent ; and, we believe, also one compelled to undergo
an operation which could not be safely performed in the
convent. The judgment of the sufficiency of the reason
lies with the Ordinary, and in urgent cases with the su-
perioress
34
Can. 602
Clausura monasterii monialium ita circumsepta esse
debet ut, quoad fieri potest, nullus sit in cam vel ab ea
prospectus externarura personarum.
The enclosure of every monastery of nuns should be
protected on every side in such a manner as to prevent, as
ssCfr. Pius V. "Decori," Feb.
t, '570-
a« The Regcsta S. C. EE. et RR.
contain a great number of pennis-
iions granted to nun*, etpecially of
Portugal, who wished to go to
health resorts; ther were to travel
in a closed carriage with the cur-
tains down, accompanied by two
other Siaters, and without a pro-
longed atop.
oogle
Original fro ni
UNIVERSITY OF Vi-'ISCONSI
■
pi
318 RELIGIOUS
far as possible, those within from being seen by, or seeing,
persons outside. Of course, if the ecclesiastical authori-
ties could always enforce their laws, — as they formerly
did in the Papal States," — this canon might also be in-
sisted upon. But a little more light and air would not
hurt the nuns.
Can. 603
§ 1. Clausura monialium, etsi regularibus subiecta-
rum, sub vigilantia est Ordinarii loci, qui potest delin-
quentes, regularibus viris non exceptis, poenis quoque
ac censuris corrigere et coercere.
§ 2. Etiam Superior! regulari custodia clausurae
monialium sibi subiectarum commissa est, qui moni-
ales aut alios suos subditos, si quid hac in re deli-
querint, poenis quoque punire potest.
The Ordinary of the diocese must diligently watch over
the observance of the enclosure of nuns, even those sub-
ject to regulars ; he must also punish offenders, not ex-
cepting male regulars, even with penalties and censures.
The regular superiors must do the same and duly punish
nuns or other subjects who violate the enclosure.
enclosure of religious congregations
Can. 604
§ 1. In domibus etiam Congregationum religiosarum
sive pontiBcii sive dioecesani iuris clausura servetur,
in quam nemo alterius sexus admittatur. nisi ii de
quibus in can. 598, § 2 et can. 600, aliique quos ex
iustis ac rationabilibus causis Superiores admitti posse
censuerint.
D
15 A proprietor who had raised view into a convent, had to change
hit house too high and built too it (Biuarri, J. c, p. 81.)
many window*, which permitted a
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
>gk
CANON 604 319
§2. Praescriptum can. 599 etiam domibus Congrega-
tionum religiosarum sive virorum sive mulierum ap-
plicetur.
§ 3. Episcopus in adiunctis peculiaribus, gravi-
busque intercedentibus causis, potest hanc clausuram,
nisi agatur de rcligionc clcricali exempta, censuris
munirc ; semper autem curet ut eadem rite servetur et
quidquid in earn irrepat vitii corrigatur.
Here we meet the so-called episcopal enclosure, which
must be observed in the houses of religious congregations,
whether approved by the Holy See or the diocesan Ordi-
nary. Into their enclosure, says § I, no one of the other
sex is to be admitted, except actual rulers and the per-
sons mentioned in can. 600; but the superiors (both
higher and local, because the Code does not determine
which), may admit other persons of either sex for just
and reasonable motives. Such a motive would be, e. g.t
a visit of relatives, good friends or benefactors, parents
of pupils, etc.
§ 2 applies can. 599 to these congregations, whether
of men or women.
§ 3 says that the bishop may, in particular circum-
stances and for grave reasons, safeguard the enclosure by
censures, except in the case of an exempt clerical insti-
tute. Always, however, he should see to it that the epis-
copal enclosure is duly observed, and correct any abuses
that may arise. Such an abuse would be a case of epis-
copal reservation, reserved to the bishop himself, but not
by law. However, as censures in general, and especially
reserved ones, should be few and inflicted only for grave
reasons, it is evident that these reasons would have to
be very particular; for instance, if scandal should have
occurred, or if the community would do only housework
( *r\nnl*> Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
320 RELIGIOUS
which would exclude communication with the outer
world. Yet, at any rate, the enclosure would always be
episcopal, not papal.
VISITS
Can. 605
Omnes quibus est clausurae custodia, sedulo advi-
gilcnt nc, alienis invisentibus, inutili collocutione dis-
ciplina pcrturbctur et spiritus religiosus dctrimcntum
patiatur.
•a
si
All those who have the custody of the enclosure shall
carefully see lest, from intercourse with outsiders, the
discipline be relaxed and the religious spirit weakened by
useless conversation. This rule is intended not only for
the superiors, but for the master or mistress of guests
as well as for the doorkeeper and those who receive
visitors.
As Cardinal Gasparri's edition draws our attention to
the point, a word may here be added concerning the
access of regulars and laymen to convents of nuns. A
strict prohibition was always maintained concerning regu-
lars," and the S. C. of Bishops and Regulars added very
severe regulations with regard to their visits. Lay per-
sons were more easily admitted, but not during Lent, Ad-
vent, on vigils or feast-days. Our Code mentions noth-
ing respecting these visits. Hence the former strict regu-
lations, unless they are inculcated in the respective consti-
tutions, may be considered as abrogated.
8flC. un. 6', III, 16; S. C. EE. et 437 f.). Such viaita were, of
RR., Dec. 6, 1838 (Bizzarri, l. c, p. course, allowed only at the grates.
jle
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 606 321
a
o
exit from enclosure
Can. 606
§ 1. Curent Superiores religiosi ut accurate obser-
ventur quae sive circa egressum subditorum e clau-
stris, sive circa excipiendos vel adeundos extraneos, in
propriia constitutionibus praescripta sunt.
§ 2. Superioribus fas non est, salvis praescriptis in
can. 621-624, pcrmittere ut subditi extra domum pro-
priae religionis degant, nisi gravi et iusta de causa
atque ad tempus quo fieri potest brevius secundum
constitutions ; pro absentia vero quae sex menses ex-
cedat, nisi causa studiorum intercedat, semper Apo-
stolicae Sedis venia requiritur.
§ 1. Religious superiors must take care that the rules
laid down in their constitutions be faithfully observed
regarding the egress of subjects from the cloister, or their
receiving visits from, or paying visits to, outsiders.
§ 2. Religious superiors may rot allow their subjects
to stay outside the house of their own institute except for
a just and grave cause and for as short a time as possible.
But for an absence of more than six months, unless for
study, the permission of the Holy See is always required.
To keep religious from wandering about, Ordinaries
were formerly commissioned to send them back each to
a
his own house." Alexander III (a. d. 1180) forbade re-
ligious to leave their monasteries in order to frequent
lectures on civil law and physical science.88 We have
read many grants of the S. C. of Bishops and Regulars
touching upon the study of civil law. Now our Code
grants them that permission in general, saving the dispo-
sition of can. 587, § 4. The lawgiver makes no distinc-
«c. 7t x, I, 31. mc. 3, x, III, 50.
Gi ^ Original fro rn
OOglt UNIVERSITY 0FWI5C0NSIN
■
Q
RELIGIOUS
tion as to branches of study or private studies, in a
library, for instance, or archives.
Can. 607
Antistitae et Ordinarii locorum serio advigilent ne
religiosae, citra casum necessitatis, singulae extra
domum pergant.
The superioresses and local Ordinaries shall carefully
watch that Sisters do not leave the house singly, without
a companion, except in case of necessity.
assistance in the sacred ministry
Can. 608
§ 1. Curent Superiores ut religiosi subditi, a sc
designati, praesertim in dioecesi in qua degunt, cum a
locorum Ordinariis vel parochis eorum ministerium
requiritur ad consulendum populi necessitati, turn
intra turn extra proprias ecclesias aut oratoria publica,
illud, salva religiosa disciplina, libenter praestent.
§ 2. Vicissim locorum Ordinarii ac parochi libenter
utantur opera religiosorum, praesertim in dioecesi
degentium, in sacro ministerio et maxime in admini-
strando sacramento poenitentiae.
The religious superiors should always be ready to
lend a helping hand, especially if their own Ordinary or
a pastor of their diocese calls for assistance in attending
to the needs of the people ; and this help should be granted
willingly not only to the churches and public oratories
subject to religious, but also to others, as far as com-
patible with religious discipline. On the other hand it is
but meet that the local Ordinary and parish priests should
employ religious, especially those living in the diocese.
sd by GoOgle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 609
323
for the sacred ministry, and particularly for the adminis-
tration of the Sacrament of Penance. The text is suf-
ficiently clear. But a question connected with the sub-
ject may be mooted : Are religious obliged to go on such
errands in virtue of obedience? We answer, if the re-
ligious character of the community excludes outside work
in the sacred ministry, in other words, if the order is
exclusively monastic, the members are not obliged to
obey. If, however, the order or community is of a cleri-
cal nature and aims at procuring the spiritual welfare of
others, the religious are not at liberty to refuse the com-
mand of the superior." In our country, as far as we are
aware, the first-mentioned hypothesis would be verified
only in the case of the Trappists, to some extent at least.
Benedictines, Cistercians, and the congregations affiliated
with them are no longer merely monastic. We may ex-
tend the case of obedience to the circumstances of an
epidemic or contagious disease ; because in that case obedi-
ence would demand that religious assist the secular
clergy, provided the latter were doing their full duty.
PARISH CHURCHES IN CHARGE OF RELIGIOUS
Can. 609
§ 1. Si ecclesia, apud quam residet communitas re-
ligiosa, sit simul paroecialis, servetur, congrua con-
gruis referenda, praescriptum can. 415.
§ 2. In ecclesia religiosarum a votis sive sollemnibus
sive simplicibus paroecia crigi nequit.
§ 3. Advigilent Superiores ne divinorum officio rum
in propriis ecclesiis celebratio catecheticae instructioni
aut Evangelii explanationi in ecclesia parocciali tra-
as Suarcx, De RtLt tr. VIII. I. II, c. 8, n. 19 (ed. Parii., t 16, 144);
Piatui M., I, p. 388.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
Q
324 RELIGIOUS
dendae nocumenturn afferat; iudicium autem utrum
nocumentum afferat, necne, ad loci Ordinarium perti-
nct
§ 1. If the church attached to the residence of a reli-
gious community is at the same time a parish church, the
prescriptions of can. 415 are, in due proportion, to be ob-
served. These regulations should be carried out faith-
fully, because the government of the parish is in the
hands of the religious who acts as pastor. To him, there-
fore, belong the duties of preaching, teaching catechism,
applying the missa pro populo, etc. Not the religious
superior but the pastor is entitled to assist at marriages
or to perform funeral services or to baptize children.
But, as he enjoys the rights, so he also has the obliga-
tions, as the natural law dictates.
§ 2. The churches of nuns or Sisters, whether with
solemn or simple vows, cannot be parochial.
§ 3. This last paragraph, taken from the Constitution
of Benedict XIV, " Eisi minime," Feb. 7, 1742, shows the
care which the Church wishes to see bestowed on pa-
rochial work. The religious superiors are commanded
to see that the divine office in their own churches does not
interfere with the catechetical instruction or the explana-
tion of the Gospel given in the parochial church; it per-
tains to the local Ordinary to judge whether or not this
hindrance exists. Benedict XIV says that the Pontiff
would assist the bishop in carrying out his regulations.
The welfare of souls is the first and supreme law.
choir service and mass
Can. 610
§ 1. In rcligionibus sive virorum sive mulicrum, qui-
bus est chori obligatio, in singulis domibus ubi qua-
>Ie
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 610
325
tuor saltern sint religiosi choro obligati et actu legitime
non impediti, et etiam pauciores, si ita ferant constitu-
tioncs, debet ad normam constitutionum quotidie di-
v in urn officium communiter pcrsolvi.
§ 2. Missa quoque officio diei respondent secundum
rubricas quotidie celebrari debet in religionibus viro-
rum et etiam, quoad fieri possit, in religionibus muli-
erum.
§ 3. In eisdem religionibus sive virorum sive muli-
erum, sollemnitcr professi qui a choro abfucrunt, de-
bent, exceptis conversis, boras canonicas privatim
recitare.
It is a custom, nay, we might say, a customary law, that
religious should chant or recite the divine office. Clement
V insisted upon this service, not only in cathedral
churches, but in all churches of religious, and exhorted
them to recite the office with proper attention and devo-
tion.40 That St. Benedict devoted eleven chapters of his
rule to this matter shows his intention of keeping the
sacred fire burning. Hence it is not surprising that the
Church imposed this duty on all religious whose con-
stitutions prescribe the recitation of the divine office.
Therefore, says § 1, all religious, whether male or female,
who are obliged to choir service, are bound to perform it
daily in every house in which there are at least four mem-
bers who are not lawfully prevented, and even fewer if
the constitutions so prescribe.
This obligation is a grievous one for all institutes
whose constitutions prescribe choir service, and the su-
perior is not allowed to dispense from it, except in case
there be not sufficient members present to perform it.
The Code rules that at least four members obliged to
♦0 C. !, Clem. Ill, 14. Sometimes birda and dogs were brought
into church!
oogle
Original fro rn
UNIVERSITY OF WISCONSI
326 RELIGIOUS
choir service must be present in a house for which the
choral obligation exists." If the constitutions oblige the
members to choir service even when less than four are
present, they must be obeyed, even if four, or three, or
two novices only were present who could perform the
duty.48 The community, as such, is under strict obliga-
tion to chant or recite the divine office, and a superior
who would neglect his duty in this respect would be
guilty of mortal sin.
On the other hand, single members, as such, are not
obliged to choir service, at least not sub graft, unless the
rule or constitutions or the laws of foundation oblige
them, or if the office could not be performed for lack of
a sufficient number, or one would by his absence cause
scandal to others.*8 Clement VIII, although very severe
in inculcating the obligation, allowed superiors to grant
a dispensation to choir members who arc too much occu-
pied with some special charge or office, e. g., procurators,
oecononti, prefects; also teachers and preachers on the
days on which they preach and teach; finally those who
are sickly or engaged in studies.44
Of nuns with solemn vows, only those are obliged to
choir service whose rule or constitutions, approved by
the Holy See, impose this obligation. This was decided
by the S. C. of Bishops and Regulars, April 19, 1844."
The decision added that if a legitimate custom involved
this obligation, the nuns would be bound to follow it. As
to Sisters with simple vows, the same decision says that
they are, as a rule, not obliged to choir service. Now
the Code must be consulted, and therefore, should the
41 Innocent X. " Ut m parvu," moo. I i. The latter class em-
Feb. 10, 1654, 9 2- braces (hose who publiih and print
41 Piatui M., I, 313. books for the good of the Church;
«a Piatus M., I, jii f. Fiatus M., /. r., I, 314.
44 " Nullus ommino," July aj, 40 Cfr. Btzzarri, I c, p. 405 ff.
oogle
k .,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 6io
327
constitutions approved by the Holy See oblige a com-
munity to choir service, the obligation must be complied
with. Hence Dominican, Franciscan and Capuchin Ter-
tiaries, regardless of the primitive rule of these orders,
are obliged to choir service only if their constitutions
expressly prescribe it. The same applies to Benedictine
Sisters with simple vows ; unless their approved consti-
tutions oblige them to choir service they are not bound to
render it, for the above-quoted decision clearly states:
" ubi veto vota simplicia sint, non tcneri"
As to the Breviary, the Constitution of Pius V, " Quod
a nobis," July 9, 1568, says that those orders which have
had their own Breviary for two hundred years prior to
the date of said constitution, may retain it, whereas all
others must adopt the Roman Breviary. The orders
which had their own Breviary were allowed to adopt the
Roman if the superior general and the chapter general
favored the change.4" The modern congregations must
all follow the Roman Breviary.
With regard to nuns with solemn vows, what has just
been said about regulars applies also to them, especially
to those who are subject to regulars. Sisters with simple
vows, if obliged for one reason or another to choir serv-
ice, generally recite the Little Office of the Blessed Virgin,
unless, by a strange mixture of ancient custom and mod-
em legislation, they follow the rule of an order in recit-
ing the full office.4'
Concerning the calendar, this depends upon special
indults granted by the Holy See (S. Rit. C). Those
religious who have the privilege of using their own calen-
« Hence the Benedictines would
be allowed, even now, to adopt the
Breviary prescribed by Hub X's
Constitution " Dit-ino nffal*." Nov.
1, 191 1 ; nor would St. Benedict's
Rule fc. 18) be opposed to the
eh-ince.
4i This ii the case with tome
Benedictine Sisters of our country.
GoogI
Original fro ni
UNIVERSITY OF WISCONSIN
328 RELIGIOUS
St
dar must follow it or adopt the diocesan calendar. Nuns
subject to regular orders follow the calendar of these or-
ders ; others must follow the diocesan calendar, unless
special indults grant them the use of their own calendar.
Sisters with simple vows, with the sole exception of the
Franciscans, must adopt the diocesan calendar, to which
also their chaplain, even if he has his own ordo, must
conform.49 The Franciscan Sisters aggregated to any of
the three branches ( Brown Franciscans, Conventuals, Ca-
puchins), although they recite only the Little Office of the
B. M. V., are entitled to follow the calendar, Missal and
Martyrology of their respective order.49 Furthermore
all regulars who govern a parish not incorporated, or en-
trusted to them only for a time, must use the diocesan
calendar to which the people are accustomed.80
§ 2 of can. 610 says: the Mass corresponding to the
office of the day according to the rubrics must be cele-
brated daily in the institutes of men and even, where
possible, in the institutes of women. Regulars who are
bound to choir service are certainly obliged to have one
conventual Mass sung or read.51 The same obligation is
imposed on nuns who are obliged to choir service.81 (The
Code is not opposed to that statement, because the Mass
is the principal part of the divine office.) But those who
are not obliged to choir service are not bound by a strict
obligation to have a conventual Mass, except " where
possible." The possibility depends on many circum-
stances, for instance, whether they have a chaplain, or
the means of supporting one, the locality, occupation,
■"■
«8 S. Rit. C, July !7, 1896; July DOS. Rit. C, Feb. 4, 1908
9. 1895 (Dfcrtta Aulh., n. J9*7. n- {Decrela Auth., n. 3779).
j86j). fit Bui they are not obliged to two
4» S. Rit. C, Jan. 22, 1906 conventual masses; S. Rit. C, Dec
(Anal. EecL, t XIV, p. 106). a. 1891 Wecreta Auth., n. 3757).
02 Piatua M., I, p. 3*7.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 610
329
-
1:
and so forth. The same is true, a fortiori, of Sisters with
simple vows. As to the locality, can. 1 192 must be con-
sulted with regard to semi-public oratories, which may
only be erected with the permission of the Ordinary, who
must inform himself as to proper construction.5" In
these semi-public oratories the number of masses is not
limited (can. 1193).
As to rubrics, the mass must correspond to the office
of the day. Where the office of the day is not recited,
the calendar or ordo must be followed. The chaplain is
supposed to know the rubrics. We will only add that
Mass is generally said after the Tierce (or Sext, or None,
as the rubrics prescribe) and the color of the feast must
be used, unless a votive Mass or tnissa de requie is per-
mitted.
§ 3 says that religious men or women with solemn vows
are obliged to the private recitation of the divine office if
they have been absent from choir. Lay brothers are ex-
cepted. This rule, of course, applies only to such reli-
gious as are obliged to choir service. Can. 135 obliges
all clergymen in sacris to the recitation of the divine
office, from which they are excused only by physical or
moral impossibility. If some particular constitutions
oblige lay brothers to the recitation of the Little Office
of the B. M. V. this obligation does not entail a strict
duty," though the prayers prescribed must, of course, be
said.
CI
'"■
B
-
a
-
<
—
-
5» The chapel must not be a mere
hallway, nor may a bedroom be
placed immediately above the sanc-
tuary, it i..urt be decently furnished
and neatly kept.
u
>oqU
54 S. C. EE. et RR., Jan. ao,
1906 {Anal. EccL, XIV, p. aoo f.;
Congreg. Bavarica O. S. B.); April
19. 1844 (Biztarri. p. 495 ff.).
Original fro ni
UNIVERSITY OF WISCONSIN
33° RELIGIOUS
a
. letters not subject to inspection
Can. 6ii
Omnes rcligiosi sive viri sivc mulicres, liberc pos-
sunt mittere litteras, nulli obnoxias inspection^ ad
Sanctam Sedem eiusque in natione Legatum, ad Car-
dinalem Protectorem, ad proprios Superiores maiorcs,
ad Superiorem domus forte absentem, ad Ordinarium
loci cui subiecti sint et, si agatur de monialibus quae
sub regularium iurisdictione sunt, ctiatn ad Superiores
maiores Ordinis; ct ab istis omnibus praedicti reli-
giosi, viri aut mulicres, litteras item nemini inspicien-
das reciperc.
All religious, whether men or women, can freely send
letters, exempt from all control, to the Holy See and its
legate in the country, to their Cardinal Protector, to their
own higher superiors, to the superior of their house when
absent, to the local Ordinary to whom they are subject,
and, in the case of nuns subject to regulars, to the higher
superiors of the order; and from all these persons the
religious, men or women, can also receive letters which
nobody has the right to open.
Wc add only one thought, which has often struck our
inquiring mind. Authors, especially moralists, base the
right of inspecting letters sent to religious on the neces-
sity of maintaining the religious discipline. But they
never mention the natural right which those outside the
house have to privacy and secrecy of correspondence.
It is acknowledged by all that letters should never be
opened or read by persons not concerned. Is a religious
superior by virtue of his office entitled to know the secrets
of the family of a religious? Has he any right to make
use of that knowledge? This is privileged knowledge,
G] Original from
008IL UNIVERSITY QFWI5C0NSIN
CANON 612
331
and we fail to see how it can be conducive to the right
government of his subjects. Besides the manifestation
of conscience not being to be extorted, we fail to see into
the claim of knowing the conscience of others.
PUBLIC WORSHIP
Can. 612
Praetcr prae script urn can. 1345, si loci Ordinarius
ob causam publicam soniturn campanarum, preccs ali-
quas vel sacra sollemnia indicat, religiosi omnes, etiam
exernpti, obedire debent, salvis constitutionibus et
privileges suae cuiusque religionis.
Besides the prescription of can. 1345, if the local Ordi-
nary from a motive of public utility prescribes the ring-
ing of the bells, certain prayers or sacred solemnities, all
religious, even those exempt, must obey, without preju-
dice to the constitutions and privileges of each institute.
Can, 1345 rules that the Ordinary is entitled to com-
mand religious, even those exempt, to impart a brief
instruction in their own churches on feast-days if the
people assist at the service. As to the ringing of bells,
the recitation of prayers, and solemn services, the Ordi-
nary may command them only for a public cause. Such
a one would be war, a public calamity, the election of a
pope or the bishop's taking possession of the diocese.
Regulars must also insert the imperata commanded by the
Ordinary, and are not allowed to quit saying it at will.55
From this injunction of the Ordinary no appeal is per-
missible," although the privileges of the orders are not
thereby touched or revoked. Thus, according to Pius V's
Constitution, " Etsi mendicantium," May 16, 1567, Ordi-
85 S. Kit. C, April 3, 1821
(Dtcreto Aulh., n. 3613 ad 1 et a).
Bfl Bencd. XIV, "Ad miliiontiJ,'
March 30, 1743.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
332 RELIGIOUS
naries are not allowed to prohibit regulars from
ringing the bells or celebrating the office whenever they
please.57
ITS. C. EE. ct RR., March II, life* (A. S. S., XXIV, 558).
J Original from
OOglL UNIVERSITY 0FWI5C0NSIN
CHAPTER II
the privileges of religious
Can. 613
§ 1. Quaelibet religio iis tantum privileges gaudet,
quae vel hoc in Codice continentur, vel a Sede Apo-
stolica directe eidem concessa fuerint, exclusa in po-
sterum qualibct comrnunicatione.
§ 2. Privilcgia quibus gaudet Ordo regularis, com-
petunt quoque monialibus eiusdem Ordinis, quatenus
eorum sint capaces.
§ 1. Each institute enjoys only those privileges which
are contained in this Code, or may have been directly
granted to it by the Apostolic See ; every communication
of privileges is henceforth excluded.
§ 2. The privileges which a regular order enjoys be-
long also to the nuns of the same order, in so far as they
are capable of enjoying them.
On privileges in general the reader may consult Vol. I
of this Commentary, where mention is also made of the
communication of privileges.1 There are only two
sources of privileges: the law and a direct grant by the
Holy See. All intercommunication of privileges is for-
bidden for the future. However, this law, as we stated
before, is not retroactive, and hence the orders may retain
what they possess, except where the Code rules differ-
ently. In order to ascertain what privileges each insti-
1 Vol. I, pp. 155 f-
333
>Ie
Original from
UNIVERSITY OF WISCONSIN
334 RELIGIOUS
tutc possesses, the superiors of regulars have been called
upon, in a circular of the S. C. of Religious, to meet after
the war and prepare a list of privileges granted and com-
municated to their respective orders. Since the different
orders enjoy many different privileges, it cannot be our
task to collect them. It seems certain that any privilege
which concerns the outward activity of the regulars, not
merely their internal government and discipline, must
now be looked upon as abolished if it contradicts the ex-
plicit wording of any part of the Code. Thus, for in-
stance, the hearing of confessions, the celebration of
Mass, preaching, and funerals must be judged according
to our Code. The privileges concerning ordination
extra tempora and without the necessary intervals are no
longer in effect. We confess that uniformity of law and
discipline seems to us a greater benefit than a shadowy
so-called privilege, sometimes ostentatiously vindicated.
There can be no greater glory than to belong to the
Church universal, as long as religious arc left free to
pursue (heir vocation and are not unnecessarily molested.
The second section of our canon states that nuns with
solemn vows partake of all the privileges enjoyed by the
regular order whose rule they follow. Note that the text
does not say that they must be subject to the prelate of
the respective order. Hence though, for instance, Do-
minican nuns be subject to the Ordinary of the diocese,
yet they enjoy all the privileges of the male order. "In
so far as they are capable of enjoying them " means that
female religious cannot partake of the privileges granted
to male religious who are employed in the sacred ministry
or in the exorcise of jurisdiction in foro extcmo and
inferno. But they enjoy dispensations, commutations,
and spiritual favors. Thus, for instance, a plenary in-
dulgence granted to the Franciscan Order on the feast
Q
oogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 614
335
of St. Francis may be gained by the nuns of the same
order (all three branches), and the brethren O. F. M.
may gain a similar indulgence granted for the feast of
St Clare of Assisi (Aug. 12). As to Sisters, our Code
is silent. Yet it is certain that the Tcrtiaries of St.
Francis who live a common life, though they pronounce
only simple vows, if duly aggregated to any of the three
branches, partake of all the indulgences granted to the
first and second orders, and that their churches and (pub-
lic or semi-public) oratories are endowed with the same
indulgences as those of the first and second orders.2
Other sisterhoods enjoy only such privileges as are
granted by the Code or the Holy See.
clerical privileges
Can. 614
Religiosi. etiam laici ac novitii, fruuntur clericorum
privileges de quibus in can. 1 19-133.
Religious, even lay brothers and sisters, and novices,
enjoy the privileges of clerics mentioned in can. 1 19-123.
Hence they are inviolable by reason of the privilegium
c ononis, they are not to be dragged before the civil court,
are free from military service and public offices, and can-
not be stripped of all their possessions in case of in-
solvency.*
They are not allowed to waive these privileges because
they arc attached not to the person, but to the religious
state.
aS C. EE. el RR. Nov 18.
1905 {Annal. Eccl., XIV, so); S.
C. Indulg., Auff. 28, 1903 (Annul.
EccL, XT, 489); S. O., June 7,
1916 {A. Af. S.. VIII, a6j »d 1;
but V is now to li* suppressed) : S.
C. EE. ct KK., Sept. 1840 fBiziarri,
J. e„ p. 450 ff->-
a Cfr. Vol. II of this Commcn-
Ury.
►ogle
Original from
UNIVERSITY OF WISCONSIN
336 RELIGIOUS
a
privilege of exemption
Can. 615
Regulares, novitiis non exclusis, sive viri sive muli-
cres, cum eorum domibus ct ccclcsiis, exceptis iis
-
monialibus quae Supcrioribus regularibus non subsunt,
ab Ordinarii loci iurisdictione exempti sunt, praeter-
quam in casibus a iure expressis.
Regulars, both men and women, including the novices,
except those nuns who are not subject to regular supe-
riors, are exempt with their houses and churches from
the jurisdiction of the local Ordinary, except in the cases
provided for by law.
As to the history of exemption, enough has been said
supra.4 Here the Code determines what exemption im-
plies and what persons are exempt, as well as the excep-
tions to the rule.
1. Exemption means freedom from the jurisdictional
power of the Ordinary in whose diocese a house is lo-
cated in all matters except ordination. Exemption is
called passive in regard to persons, and only by reason of
personal exemption do houses and churches share the
privilege. Hence, properly speaking, as Benedict XIV
says,8 the houses and churches of regulars are not severed
from the diocesan organism ; they do not form a separate
territory nullius. The Code simply says: "cum eorum
domibus," not ct eorum domus.
2. Exemption is now granted to all regulars, i. e.t to
all religious orders with solemn vows, even though the
D
* Pages 24 sqq. hearing confession! of secular
B Dm Synod. Dioec, II, 11, a; priests, because a regular may hear
Id., " Atostultcae servttuhs," March such confessions in the monastery-
14, 1743. The statement in the enclosure, not only in the church,
text is of practical value in case of as at least one moralist claims.
ibyC ;Ic
I , Original from
UNIVERSITY OF WISCONSIN
CANON 615 337
members are not all solemnly professed. Thus also the
novices and lay brothers and clerics with simple vows
enjoy exemption. But we dare not extend the privilege
to the familiares* or dependents, as the text does not
mention these, though it expressly includes novices ; but
the familiares partake of certain other favors granted to
regulars. Nuns with solemn vows are withdrawn from
the jurisdiction of the Ordinary only if they are subject
to the power of a regular prelate. All these regulars are
now no longer obliged to prove that they enjoy exemp-
tion, because, being regulars, they are exempt by law.
Any religious order which conforms to can. 488 of the
Code is entitled to exemption.
Religious congregations, on the other hand, must prove
their claim to exemption by a papal brief, because with-
out such an indult no congregation now enjoys the privi-
lege. Thus the Passionists can produce the privilege
granted them by Gement XIV, Sept. 21, 1771, and the
Redemptorists may point to the Constitution of Pius VI,
" Sacrosanctum" of Aug. 21, 1789. Sisterhoods are
not easily granted exemption.7
3. Exemption, meaning freedom from episcopal juris-
diction, implies that the episcopal court cannot summon
religious to appear before it; that the exempt religious
need not heed ecclesiastical censures inflicted by the Or-
dinary; that they may bring their case directly before
the S. Congregation of Religious; that diocesan rules or
statutes do not touch them, except, of course, as far as
the sacred ministry is concerned ; that episcopal inter-
ference in their domestic affairs and government is en-
tirely excluded; that their property and its administra-
6 fir. can. 514. happy vacation day and whom he
7 The Sisters of the Holy Crow, remembers with deep gratitude, en-
of Ingenbohl, Switzerland, among joy exemption to a certain extent
whom the author spent many a
jle
J , Original fro ni
UNIVERSITY OF WISCONSIN
■
338 RELIGIOUS
tion are in their own hands. This, in general, is the ex-
tent of exemption. Should a doubt arise, the Roman
Curia will decide it if the bishop is not satisfied with the
interpretation given by the exempt religious.8 However,
there are exceptions, as the Code says : u nisi in casibus a
iure expressis" ft. e., in cases expressly mentioned in the
Code the exemption ceases and the jurisdictional power
of the Ordinary is restored. These cases are generally
comprised by the phrase : etiam exempli?
regulars outside their houses
Can. 616
§ 1. Regulares extra domum illegitime degentes,
etiam sub praetextu accedendi ad Supehores, exemp-
tionis privilegio non gaudent.
§ 2. Si extra domum delictum commiserint nee a
proprio Superiore praemonito puniantur, a loci Ordi-
nario puniri possunt, etsi e domo legitime exierint et
domum rcversi f uerint.
D
u
§ i. Regulars unlawfully absent from their houses,
even under the pretext of having recourse to their supe-
riors, do not enjoy the privilege of exemption.
§ 2. Regulars who have committed a crime outside
their house and are not punished by their superior, though
the latter was warned of the fact, can be punished by the
local Ordinary, even though they may have lawfully left
their house and have returned to it.
§ 1 is taken from the Council of Trent,10 where the
8 C. 13. X, IV, 17: c. 31. X. III. 019. 1379. 1203. »338. 138a. 1385
39; S. C. C. April 16, 1648; Piattu mostly taken from the Council of
M.. II, p. 7. Trent.
• The moat important exceptions 10 Scss. 6, c. 3 de rcf. ; set*. »5,
are stated in separate canons: 131. c 4 de rea\
J44. 612, 614, 616, 804, 831, 874.
ogle
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 616
339
term unlawfully is explained. A religious is unlawfully
absent from his house if he leaves it without being sent
or called by the superior. Hence a religious who would
depart from the monastery without the permission of his
superior, in order to go to the higher superior, or to
Rome, to seek redress from grievances, would be unlaw-
fully absent. However, it is generally understood that
if the superior has been duly asked for leave and denied
the same, a religious is allowed to go straightway (recto
tramite) to the superior next in rank. In the latter case,
therefore, he would not be deprived of the privilege of
exemption. This interpretation appears legitimate be-
cause the Code says, u under pretext," which indicates a
pretended or feigned reason. One who has asked his
superior for leave of departure and has been denied per-
mission, cannot be said to act " under pretext." Besides
religious are not denied the right of seeking redress and
defending themselves against injustice. The Code says
"extra domutn" which, according to the Council of
Trent, means monastery or convent. A monastery or
convent is the habitual domicile of a religious, even
though he may be absent from it frequently for the pur-
pose of giving missions, lecturing, preaching, etc. Nay
even our expositi are not unlawfully absent from the re-
ligious house, although they may not be said to have their
domicile in the convent. Another case was solved by
Benedict XIV concerning missionaries in England11 He
says that if they had to live in private homes, these would
be considered as their religious houses, and if they ille-
gally absented themselves from them, they could be pun-
ished. But if religious are cast out of their houses by
force — as was lately done in France — and cannot come
together elsewhere to lead a common life, their tempo-
X\" Apostolicum ministerium," May 30, 1753. I 15.
>Ie
Original from
UNIVERSITY OF WI5CGNSI
340 RELIGIOUS
St
o>
rary lodgment would not be looked upon as a convent.1*
How long illegitimate absence must last before a reli-
gious forfeits the privilege of exemption, is not stated in
the Code. A decretal of Martin IV. which is referred to
in a note of Cardinal Gasparri's edition, seems to fix fif-
-
teen days as the length of a presumed illegitimate ab-
sence.1*
§ 2 mentions another case 14 in which regulars are
liable to be punished by the Ordinary, vis., if they com-
mit a crime outside their house. The crime must be a
real crime, that is, a public or scandalous transgression of
the law made notorious by the fact of being witnessed by
others. It is also generally presumed that it must be
committed in daylight, and outside the religious house; if
committed in church, or anywhere outside the monastic
enclosure, the offender is liable to punishment. Note
well that in this paragraph the legislator supposes that
the absence is legitimate. Hence whether one is an
expositus, or absent on a lawful errand, is immaterial in
case of crime, as described above.
But the Ordinary may proceed only after the superior
of the delinquent religious has been warned and failed
to proceed within fifteen days from the date of warning.
The superior must notify the Ordinary of the punishment
inflicted." All this must be observed, even if the reli-
gious has returned to his house or convent
Can. 617
§ 1. Si in regularium aliorumve religiosoruni ex-
emptorum domibus eorumve ecclesiis abusus irrcp-
a
12 S. C. C, Sept 4, 1875; S. uTrid., MM. 6, c 3, de ref.; scss.
Poenlt, Sept. 12, 1872; Piitut M., 7, c 14 de ref.; seas. 25, c. 14, de
1, 3091. rejf.
li C. i, Extra v. Coram., Ill, 8. IB Cfr. Piatua M., II. p. 74 i
* I Inr*oI*> Original from
,00cVC UNIVERSITY OF WISCONSIN
CANON 618
34i
—
serint, et Superior monitus prospicere neglexerit, Or-
dinarius loci obligationc tenetur rem ad Sedem Apo-
stolicam statim deferendi.
§ a. Domus autem non formata manet sub pcculi-
ari vigilantia Ordinarii loci, qui, si abusus irrepscrint
et fidelibus scandalo fuerint, ipse per se potest interim
providere.
I. If abuses have crept into the houses or churches of
regulars or of other exempt religious, and the superior,
having been warned of the fact, neglects to provide a
remedy, the local Ordinary is bound to refer the matter
immediately to the Apostolic See.
§ 2. Every house in which there are less than six mem-
bers, remains under the special vigilance of the local
Ordinary, who, if abuses arise and become a source of
scandal, can himself provisionally deal with them.
The first paragraph of this canon is entirely new, and
we daresay, not exactly in keeping with the privilege of
exemption, because the Ordinary is set up as a sort ot
policeman over exempt monasteries. The second section
recalls the regulations which emanated under Urban VIII,
decree June 21, 1625, and Innocent X, " Instaurandae"
Oct. 15, 1652, "Ut in parvis" Feb. 10, 1654. But the
Code cannot be supposed to wish to contradict the consti-
tution of Leo XIII, "Rotnanos Pontifices" May 5, 1881,
which grants exemption even to smaller houses of regu-
lars.
religious congregations
Can. 618
§ 1. Religiones votorum simplicium exemptionis
privilegio non gaudent, nisi specialiter eisdem fuerit
concessum.
oogle
Original from
UNIVERSITY OF WISCONSI
■
pi
342 RELIGIOUS
£
§ 2. In religionibus tamcn iuris pontincii Ordinario
loci non licet:
i.° Constitutioncs ullatenus immutare aut de re
oeconomica cognoscere, salvo praescripto can. 533-535;
2.0 Sese ingerere in regimen internum ac discipli-
nary, cxceptis casibus in iure expressis ; nihilominus in
religionibus laicalibus ipse potest ac debet inquirere
num disciplina ad constitutionum normam vigeat, num
quid sana doctrina morumve probitas detrimenti
ceperit, num contra clausuram peccatum sit, num
Sacramenta aequa stataque f requentia suscipiantur ; et,
ti Superiores de gravibus forte abusibus admoniti op-
portune non providerint, ipse per se consulat; si qua
tamen maioris momenti occurrant, quae moram non
patiantur, decernat statim ; decretum vero ad Sanctam
Sedem def erat.
§ 1. Institutes with simple vows do not enjoy the privi-
lege of exemption, unless it has been specially granted to
them, as was done in the case of the Passionists, Re-
demptorists, and some others.
§ 2. As regards institutes approved by the Holy See,
the local Ordinary may not :
i.° Make any change in the constitutions or enquire
into the temporal administration, saving the dispositions
of canons 533-535 1
2.0 Interfere in the internal government and discipline,
except in the cases expressed by law ; nevertheless, in re-
gard to lay religious, he can and must enquire :
a) Whether the discipline is maintained according to
the constitutions ;
b) Whether sound doctrine and good morals have suf-
fered in any way (through Modernism or other heretical
tendencies) ;
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 6! 8
343
N
■
c) Whether there have been breaches of the law of
enclosure ;
d) Whether the Sacraments are duly and regularly
frequented ;
e) If superiors having been warned of the existence
of grave abuses, have failed duly to remedy them, the
Ordinary himself shall provide; if, however, something
of greater importance, which will suffer no delay occur,
he shall decide at once, and report his decision to the
Holy See.
The " Conditae " of Leo XIII, from which these rules
are taken, furthermore says that the Ordinary is not al-
lowed to limit or modify the authority granted to reli-
gious superiors by their constitutions; that the appoint-
ment to offices and charges belongs to the chapter and
council of each house, but that the Ordinary himself or
his delegate may preside at the chapters which make such
appointments. The enclosure, called episcopal, is under
the supervision of the bishop. As to the Sacraments, the
Ordinary must see to it that they are administered accord-
ing to the laws of the Church. These congregations are
also subject to the Ordinary in whatever regards cen-
sures, reserved cases, dispensations from vows not re-
served to the Pope, dispensations from general laws, as
far as the Ordinary can dispense therefrom, and also with
respect to public prayers (cf. can. 612). Abuses may
creep into the management of schools, hospitals, asylums,
especially concerning debts and buildings, the treatment
of inmates, pronounced favoritism, indiscriminate com-
munication with persons of the other sex, etc. If the
abuse be a serious one, the Ordinary ought to gather writ-
ten information, if possible supported by affidavits, and
then draw the attention of the superior to the matter and
give him time to correct the evil. If after some time no
jle
Original from
UNIVERSITY OF WISCONSIN
■
344 RELIGIOUS
result appears, the Ordinary may summon the superior
and threaten ecclesiastical punishment, including cen-
sures. All matters of greater importance must subse-
quently be reported to Rome. This report must embody
the testimony of reliable witnesses who are ready to make
oath to the facts they assert. Of course, in case of grave
scandal, the Ordinary can punish the delinquent immedi-
ately, even by removal, if necessary. Note the terms
provide and decide; the former is paternal and non-ju-
diciary, whilst the latter spells judicial or at least sum-
mary trial and sentence.
punishments
Can. 619
In omnibus in quibus religiosi subsunt Ordinario
loci, possunt ab eodem etiam poenis coerced.
In all cases in which religious are subject to the local
Ordinary, he may coerce them even by penalties.
There can no longer 10 be any dispute as to the power
of the Ordinary to proceed according to the penal Code
against all religious in cases in which they are subject to
him. In order to render that power efficacious, various
papal 1T constitutions had already decided that it included
the infliction of censures. Exemption is not absolute,
but relative, i. e., it reaches only so far as the law grants it.
The Ordinary's power of correction may be wielded not
only at the time of the canonical visitation, but whenever
religious make themselves guilty of transgressions which
the law has expressly placed under the power of the Ordi-
1* Cfr. Piatut M., IT, p. 8 iV. lege can bow be claimed against the
IT Greg. XV, " InsctutabUi," Feb. common law. unless it be granted
S, 16, I 4, I 6; Innocent X, " Cum since the promulgation of the Code,
ncHt," May 14, 1648, 9 4. No privi-
od by GoOgle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 620
345
a
N
nary. The latter, however, is not allowed to stretch the
law.
DIOCESAN INDULTS
o
Can. 620
Per indultum ab Ordinario loci legitime concessum,
obligatio legis communis ccssat quoque pro religiosis
omnibus in dioecesi comraorantibus, salvis votis et
constitutionibus propriis cuiusvis religionis.
Every indult lawfully granted by the local Ordinary
dispensing from the obligation of the common law, avails
likewise for all religious living in the diocese, without
prejudice to the vows and particular constitutions of their
own institute.
With regard to this enactment consult can. 1245, which
empowers Ordinaries to dispense from fast and absti-
nence in particular cases. This indult may be applied
also to religious communities, as has been decided by the
Holy Office, Dec. 20, 1871. There is but one restric-
tion,— that of the vow. Thus the Minimi have a special
vow of fasting, from which the superiors cannot dis-
pense. Our Code adds: without prejudice to the consti-
tutions, which might be interpreted as if the superiors
could not use the episcopal indult whenever the consti-
tutions prescribed a day of fast or abstinence. How-
ever, since the Ordinaries and superiors of exempt or-
ders are by common law entitled to dispense in said cases
(can. 1245, § 3), we believe that they may legally apply
the power granted if the whole diocese is exempt from
a restriction. Besides, the S. C. of Bishops and Regulars
has declared that superiors of religious congregations
may dispense in particular cases from the constitutions.11
10 March a, 1894; Bach of en, oroua an application of the conati-
Comp. luris Reg., p. jSj. Too rig- tutiona when the whole diocese ta
>Ie
Original from
UNIVERSITY OF WISCONSIN
■
346 RELIGIOUS
Therefore, they too may apply the indult granted by the
Ordinary in a particular case, especially since the dis-
pensation is granted and all that is needed is to apply it.
If there should be any scruple, especially in female com-
munities, the Ordinary may be asked to dispense in their
behalf, provided, of course, no special vow stands in the
way.
BEGGING
Can. 621
§ z. Regularcs, qui ex instituto mendicantes vocan-
tur et sunt, clecmosynas in dioecesi, ubi religiosa do-
mus est constituta, quaerere valcnt de sola Superiorum
suorum licentia; extra dioecesim vero indigent prae-
terea licentia scripto data ab Ordinario loci in quo
eleemosynas colligere cupiunt.
§ a. Hanc licentiam Ordinarii Iocorum, praecipue
dioecesium fmitimarum, nisi gravibus ct urgentibus de
causis, ne denegent neve revocent, si religiosa domus
ex mendicatione in sola dioecesi, in qua est constituta,
vivere nullo modo possit.
The Council of Trent" did not favor begging, and
doubtless it had good reasons for its sweeping prohi-
bition. Yet subsequent papal constitutions 20 mitigated
this somewhat harsh measure, or rather furnished an au-
thentic, but extensive, interpretation of the Tridcntine
law. This interpretation safeguarded the right of regu-
lars who by their rule belong to the class of mendicant
orders to beg alms in the diocese in which their house is
situated. All that is needed is the oral or written per-
-
dispensed and the supreme lawgiver 19 Sea*, si, e. 7, de ref.
■Hows lite use of a dispensation, doei 20 Piui V, " / ■ -■ m<n Jtcanlium,"
not foster the spirit of willingness May 16, 1567: Clement XI, " £j-
nor respect for the law. poni not is," July 8, 1717.
jfe
k ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 622
347
■
mission of their superior, either local or higher. This
is the law laid down in the first paragraph of our canon.
However, if they wish to beg outside their own diocese,
regulars must obtain the written leave of the Ordinary in
whose diocese they wish to beg.
§ 2 admonishes the Ordinaries, especially of adjoining
dioceses, not to refuse or withdraw the license allow-
ing mendicant regulars to beg, except for weighty and
urgent reasons, if the religious house cannot possibly
subsist on the alms gathered in the diocese in which
it is situated.
It is certain that, according to the rule of St. Francis
and certain authentic declarations of the Holy See," the
begging must be done by the regulars themselves. The
text would also seem to exclude begging by letter or other
indirect means. This is borne out by our Code, which
recalls the fact that the mendicants need only the permis-
sion of their superiors to beg. The Apostolic grant,
which is a privilege granted to mendicants only, must be
interpreted according to the old law (cf . can. 623).
NON-MENDICANT ORDERS AND CONGREGATIONS
Can. 622
§ 1. Alii omnes religiosi Congregationum iuris pon-
tifkii, sine peculiari Sanctae Sedis privilcgio, stipern
peterc prohibentur; quibus, si hoc privilegiurn impe-
travcrint, opus erit praeterea licentia scripto data ab
Ordinario loci, nisi aliter in ipso privilegio cauturn
fuerit.
§ 2. Religiosi Congregationum iuris dioecesani
stipem quaeritare nequaquam possunt sine licentia
scripto data turn ab Ordinario loci in quo sita est
21 Com;, at.
ioogle
Original fro m
UNIVERSITY OF WI5C0NSI
■
348 RELIGIOUS
corum domus, turn ab Ordinario loci in quo stipem
quacrcre cupiunt.
§ 3. Religiosis, de qui bus in §§ 1 et 2 huius canonis,
Ordinarii locorum licentiam quaeritandae stipis ne
conccdant, praesertim ubi sunt conventus rcgularium
nomine et re mendicantium, nisi sibi constet de vera
domus vcl pii opens necessitate, cui alio mbdo occurri
nequeat; quod si necessitati provider) possit stipe
quaerenda intra locum seu districtum vel dioecesim in
qua iidem commorantur, ampliorem licentiam ne lar-
giantur.
§ 4. Sine authentic© et recenti rescripto Sacrae Con-
gregationis pro Ecclesia Orientali, Ordinarii latini nee
sinant orientalem ullum cuiusvis ordinis et dignitatis
in proprio territorio pecuniam colligere, nee suum
subditum in orientates dioeceses ad eundem fin em
mittant
§ 1. The Code now passes to institutes which do not
belong to the class of mendicant orders, and to papal con-
gregations. These, it says, need a special indult from the
Holy See in order to be allowed to collect alms. A spe-
cial indult is one not included in the approval of the con-
situations, or at least not specifically mentioned in that ap-
proval.22 Besides this papal indult, these institutes need
the written permission of the local Ordinary, unless this
is not required by reason of a special provision made in
the papal indult. Hence the Ordinary in whose diocese
they wish to beg, must be asked for his permission, and
the granting of it as to time and place and persons de-
pends entirely on his judgment.
§ 2. Diocesan institutes need the written permission of
»a In Latin the papal indult would non obstante i*r* ordinurii d«
contain the clause: nulla vtquisita prirr.da licenlia, etc,
vtt obtenta Ordirurii liieniia, or.
jle
^ %\^ Original from
UNIVERSITY OF WISCONSIN
CANON 622
349
a
N
the Ordinary of the diocese in which their house is lo-
cated, as well as of that of the Ordinary in whose diocese
they wish to beg."
§3. Both kinds of religious mentioned (§§ 1 and 2)
should not be permitted by the Ordinary to beg, unless
the latter is convinced of the absolute neediness of the
religious house and the necessity of their work. If the
necessary means can be provided within their own place,
or district, or diocese, no permission to go begging else-
where is to be granted. The restriction made in this
paragraph applies especially to dioceses in which there
are convents of regulars who are in name and reality
mendicants. This last clause is very just and based upon
the old rules prohibiting a convent from being erected
within about three hundred feet from a convent of men-
dicants.1*
§ 4. Latin Ordinaries may never allow an Oriental of
any order or dignity (patriarch, metropolitan, bishop,
priest, religious of either sex) to collect alms in their
dioceses without an authentic and recently issued rescript
of the S. Congregation for the Oriental Church; nor
should Latin Ordinaries send any collectors into Oriental
dioceses. Authenticity is proved by the seal and signa-
ture of the S. C. for the Oriental Church; "recently
issued " means not more than six months old. If a priest
cannot show such a document, he should not be allowed
to say Mass and should be publicly denounced."
2S S. C EE. et RR.. Singulari
quidem, March 27, 1896.
24 Clr. Piatua M . II. p. 984.
25 Alexander VIII, Alias ema-
navit, Oct. SI, 1690; Clement XII,
Dudum, March 26, 1736; S. C.
Prop. Fide, June t, loia (-4. Ap.
S., IV, 53* ff)
oogle
Original from
UNIVERSITY OF WISCONSIN
D
■--.
350 RELIGIOUS
Can. 623
Non licet Superioribus stipem colligendam commit-
tere, nisi profcssis aetate animoque maturis, maximc ei
de mulicribus agatur, nunquam autem iis qui in studia
adhuc incumbunt
Superiors must not entrust the collection of alms to
others than professed subjects of mature age and charac-
ter, especially in the case of women, and never may stu-
dents be so employed."
Can. 624
Quod vero attinet ad modum in quaeritanda stipe
servandum et ad disciplinam a quaestuantibus cu-
stodiendam, religiosi utriusque sexus stare debent in-
struct ionibus a Sede Apostolica hac de re datis.
E
As to what concerns the method to be followed in seek-
ing alms and the discipline to be observed by those who
seek them, religious of both sexes must conform to the
instructions given by the Holy See on this subject.
These instructions arc;
(1) That there should always be two sent out seeking
alms; only in case of strict necessity is it permitted to
send one, and he or she must be of approved moral char-
acter.
(2) When begging outside the place where their con-
vent is located, religious should lodge with the clergy or
pious benefactors.
(3) They should not remain outside their convent
longer than one month, if begging in their own diocese;
and not longer than two months if in a strange diocese.
(4) When begging in the place where their convent is
M S. C Re!., Not. *1, 1908 (A- Ap. S., I. 153 ff.)
>Ic
( * ^ .. ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 625
351
-■
situated they are not allowed to remain out over night.
(5) They must conduct themselves humbly, modestly,
and be clean in appearance, avoid places not suitable to
their religious profession, and comply with their religious
duties.
(6) Superiors are under strict obligation to make
these instructions known to their subjects.
(7) If religious seeking alms do not conduct them-
selves properly, but give scandal, the Ordinary of the dio-
cese may proceed against them according to law (cf.
can. 616, § 2).
(8) Religious who go begging must carry with them
the necessary permit, either from their superiors (cf.
621), or from both superior and Ordinary (if required
according to can. 622) and be ready to show the same to
the pastors and Ordinaries upon demand. The permis-
sion of the Ordinary is supposed to be valid until ex-
pressly revoked."
PONTIFICAL RIGHTS OF ABBOTS
Can. 625
Abbates regulares de regimxne, legitime electi, de-
bent intra tres menses ab electione benedictionem ac-
cipere ab Episcopo dioecesis in qua monasterium situm
est; postquam vero benedictionem recepennt, praeter-
quam potestate conferendi ordines ad normam can. 964,
n. 1, fruuntur privileges de quibus in can. 325, ex-
cepto pileolo violaceo.
Lawfully elected abbots who actually govern a com-
munity must be blessed by the bishop in whose diocese
the monastery is located, within three months from the
»T& C. Ret, Not. ai, 19-S A. Ap. S., I, 134 f.).
^Ie
Original fro ni
UNIVERSITY OF WISCONSIN
352 RELIGIOUS
date of election. After they have been blessed, they
enjoy the power of conferring the tonsure and minor
orders on those subject to them by virtue of the religious
(at least simple) profession, and also, according to can.
325, the privilege of using pontificals, except the purple
skullcap.
Concerning the right of pontificals some historical notes
have been given in the section dealing with exemption.
We add that formerly abbots had to ask the bishop three
times for the blessing, and if he refused, they enjoyed
their rights without the blessing." Now the Code makes
it imperative on all, even temporary abbots, who formerly
(e, g., in the Cassinese Congregation) did not receive it,
to obtain the blessing. It follows that the bishop is
obliged to impart it when requested. Should he demur,
recourse may be had to the S. C. of Religious.
After an abbot has been duly blessed, he enjoys two
rights in particular: he may confer first tonsure and
minor orders and he may pontificate.
The first is plainly stated in can. 964, i.° Three con-
ditions are required for licit and valid ordination. The
abbot must be blessed, he must be a priest, and the ordi-
nandus must be his own subject, (a) He must be
blessed, whether by the diocesan or another bishop is im-
material as to the validity of the orders to be conferred.
No privilege shall any longer be granted in this matter."
(b) The abbot must himself be a priest, which is not only
appropriate, but absolutely required, (c) The one who
is to be tonsured80 or promoted to minor orders must be
the abbot's own subject by virtue of at least simple pro-
■"■
II C t. X. I. 10. C. C, Msy tt, 16*4; March i«,
2* Formerly an abbot, even though 1647 (Ricfater, Trid,, p. 199).
not blessed, could by an apostolic 30 C. 3, 6*, V, 7 mentions toniurc
privilege, confer these orders; S. only.
'le
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 625
353
fession. The once mooted question " whether ordination
performed on one who is not subject to the abbot was
only illicit, but not invalid, is now settled ; it is invalid.
A religious becomes subject by profession to that abbot
in whose hands and name he makes profession, or rather
for whose community he pronounces the vows. There-
fore an Abbot President or the Abbot Primate can no
longer confer minor orders on the members of the con-
gregation or of the order, unless their faculties are re-
newed, or unless these were understood as privileges.
But even in that latter sense, it would not seem safe to
act on them."
The second abbatial privilege is that of pontificating,
i. e., performing pontifical functions with throne and
baldachino. Abbots may also wear a pectoral cross and
a ring set with a precious stone, wherever they go. But
the purple skullcap is not allowed them, except by indult.
The Code does not limit the right of pontificating to a
certain number of times, and hence the decree of Alex-
ander VII, Sept. 27, 1659, is obsolete. However, as
prelates nullius are allowed to pontificate only in their
own territory (can. 325), the privilege of using pontificals
seems to be restricted to their own churches, vis., such as
are fully incorporated with the order. Neither would it
be in accordance with the Code if abbots would pontificate
outside the diocese without the consent of the Ordinary
of the other diocese, since can. 337 requires this even for
bishops. Nor does the Code (see can. 625, as compared
with can. 325) grant to abbots the right of consecrating
churches and altars, otherwise it would not enumerate
that power specifically under can. 325, § 2.M
tl Cfr. Bachofcn, Camp, Inrit denti; but unless profession Is ex-
Ri£: V. 355 f.
at Card. Gasparri refers to no de-
cree of the S. C EE. et RR„ which
had granted that faculty to the
Abbot Primate and Abbots Prefi-
oogle
illicitly made for the monastic con-
gregation — not for the monastery
— the text is against that privilege
or faculty.
S3 Cfr. can. 1147, | 1.
Original from
UNIVERSITY OF WISCONSIN
CHAPTER III
OBLIGATIONS AND PRIVILEGES OF RELIGIOUS PROMOTED TO
■
ECCLESIASTICAL DIGNITIES OR ADMINISTERING PARISHES
c
s
The laws laid down in the following chapter are partly
new and partly taken from Leo XIII, " Romanos Pon-
tifices," May 8, 1881. History, as said elsewhere, testi-
fies that monks were not found incapable of ruling a
diocese or parish or even the whole church. Concern-
ing parishes, the Decretals made it obligatory that a com-
panion should be given to the pastor if possible.1 But
on account of the scarcity of fit members this rule was
often neglected, and, in fact, by contrary custom, abol-
ished. The Apostolic See thereupon set up the law
(called " recent " by Benedict XIV) that regulars should
not be appointed to pastoral charges without an apostolic
dispensation.2 However, it was always and is still under-
stood that if a parish is plcno iure incorporated with a
monastery, the latter can, without an indult, appoint one
of its members to govern it, because such a parish has
become a regular benefice.5
Can. 626
§ 1. Religiosus nequit, sine Sedis Apostolicae auc-
toritate, ad dignitates, officia aut bencficia promoveri,
quae cum statu religioso cornponi non possint.
1 C S. X. Til. SS aaya that an- Jl The principle stated above
cient canons allowed the monks to touched only secular benefices, •'. §.,
re pastors, such offices as by original right we»
■ " Cum n*ptr," Nov. 8, 1751. held by the secular clergy.
354
oogle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 626
355
§ 2. Legitime ab aliquo collegio electus, nequit elec-
tioni assentiri sine liccntia Superioris.
§ 3. Si voto teneatur non acceptandi dignitates, spe-
cialis Romani Pontificis dispensatio est necessaria.
■
§ 1. No religious may, without the authority of the
Apostolic See, be promoted to any dignity, office, or
benefice which is incompatible with the religious state.
To a dignity in the proper sense, i. 0., an ecclesiastical
office which implies precedence, rank, and jurisdiction,
if it be a secular office, a religious cannot be promoted
without a dispensation. But the supreme pontificate and
the episcopacy has never been, by law, barred to religious.
Hence the dignities here intended must refer to cathedral
chapters. The vicar-generalship may also be included,
as this dignity, according to can. 367, is to be conferred
on secular priests only, unless the government of the
diocese is entrusted to a religious family. Office would
comprise all the minor offices, such as canonicates, pas-
torships, or chaplaincies held by secular priests, and also
benefices, though, as stated before, if a parish belongs to
a religious family by decree of the S. C. of Religious, a
religious may be appointed to it.4 Besides, as seen from
the chapter on pastors and assistants, religious may be
appointed temporary pastors or substitutes. Whether
religious may be appointed diocesan consultors seems
doubtful, because can. 425 requires consultors to reside
in or near the episcopal city. But religious are not ex-
cluded from the office of synodal examiners, provided, of
course, they have the permission of the superior or are
themselves superiors. Neither does the Code forbid re-
ligious who are pastors to be rural deans. The main
reason for excluding them from these offices is the in-
4 Cfr. can. 432, 456.
>Ie
Original fro rn
UNIVERSITY OF WISCONSI
356 RELIGIOUS
compatibility of the latter with the religious profession.
Now where the Code does not explicitly state that the
religious clergy is excluded, as is the case with the vicar-
generalship, religious are capable of assuming offices
which do not interfere with their profession. Hence a
religious who is lawfully appointed pastor may also as-
sume offices which are generally conferred on pastors.
§ 2. One who is legally elected by an electoral college
may consent to his election only with the permission of
his superior, as the Decretals5 already stated. Hence a
religious who would be elected superior for another mon-
astery than his own, would need the special permission
of his own superior. A general license to that effect is
insufficient,0 though if the electors had asked the superior
before election to permit the choice of one of his sub-
jects, this would suffice. An abbot who is elected bishop
needs the consent of the Holy See for leaving his monas-
tery.7 Of course, here in this country this is of little
practical value, since the Apostolic See, by freely ap-
pointing bishops is supposed to give its consent. For the
rest, such cases are not frequent.
§3. If religious are bound by a vow not to accept
ecclesiastical dignities (not mere offices), a special dis-
pensation is required from the Roman Pontiff. This
vow may be a religious vow, as the last class of the Jesu-
its pronounce, or a private conditional one. The Code
makes no distinction.8
■"■
«C. 27. 6". I. 6- Neither is the 8 Urban VIII. " Hgnorum." Feb.
superior obliged to ask the advice of 24, 1643. 5 2. A vow is conditional
his chapter or counsellors; ibid., if made dcpendently on the will of
I 1. the superior; if made before pro-
• Engel, 1. 6 b. 14. fession, the superior may annul it
T C. 36, 6°, I, t>» afterwards; can, 1 ju, | 1.
*Ie
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 627 357
1
Can. 627
§ 1. Religiosus, rcnuntiatus Cardinalis aut Episcopus
sive rcsidentialis sive titularis, manet religiosus, par-
ticeps privilegiorum suae religionis, votis ccterisque
suae professionis obligationibus adstrictus, exceptis
iis quas cum sua dignitate ipse prudenter iudicet com-
poni non posse, salvo praescripto can. 628.
§ 2. Eximitur tamen a potestate Superioruni et, vi
voti obedientiae, uni Romano Pontifici manet obnoxius.
A religious who is created cardinal or appointed bishop,
either residential or titular, remains a religious with all
the rights and obligations proper to his profession, but
may exempt himself from such obligations as he deems
incompatible with his dignity, without prejudice, how-
ever, to the rule laid down in can. 628.
He is also exempt from the jurisdiction of his superiors
and by virtue of the vow of obedience becomes subject
to the Roman Pontiff. Hence a religious thus promoted
enjoys all the privileges and spiritual favors which his
institute enjoys, and remains bound by the obligations
proper to his state. He must observe the rule and the
constitutions, as far as they do not conflict with his new
dignity, This entails the observance of the fast and
abstinence and the penances prescribed by the rule and
constitutions. Whether these prescriptions are compati-
ble with his dignity, the religious dignitary himself is al-
lowed to judge.9 As to the Breviary he must follow that
of his diocese, and if another religious recites with him,
he also may follow the bishop's breviary.10 A Cistercian,
we presume, would be obliged to add the Office of the
0 Benedict XIII, " Cmttodes."
March 7. 1726; S. C EE. et RR..
May 6, 1864 (Bizxarri, /. c, p
712 ff.).
10 S. Bit. C, June 11, 1605.
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
-'
N
■
358 RELIGIOUS
Blessed Virgin, unless important occupations excused
him. With regard to the habit, a religious dignitary has
to wear the same as his religious brethren, as far as form
and color are concerned,11 but may have it trimmed with
purple buttons. Canons regular and such as are espe-
cially privileged, may dress like secular bishops.
Can. 628
Religiosus ad dignitatim episcopalem vel aliam ex-
tra propriam religionem cvectus:
i.° Si per professionem dominium bonorum amiserit,
bonorum, quae ipsi obveniunt, habet usum, usumfruc-
tum ct administrationem ; proprietatem vero Episcopus
residential, Vicarius Apostolicus, Praefectus Apo-
stolicus, acquirit dioecesi, vicariatui, praefecturae ;
ceteri, Ordini vel Sanctae Sedi, ad normam can. 582,
salvo praescripto can. 239, § 1, n. 19;
2.0 Si per professionem dominium bonorum non
amiserit, bonorum quae habebat, recuperat usum,
usumfructum ct administrationem; quae postea ipsi
obveniant, sibi plene acquirit ;
3.0 In utroque autem casu de bonis, quae ipsi ob-
veniunt non intuitu personae, debet disponere secun-
dum offerentium voluntatem,
A religious promoted to the episcopal or any other
dignity outside of his institute must observe the vow of
poverty as follows :
I. If he has lost the right of possessing property, —
as is the case with solemnly professed religious — he re-
tains the use, usufruct, and administration of all property
that comes to him during his actual exercise of the dig-
it Benedict XIII, " C ■.-..■ t. d>- •. " ; grant and has granted dispenntion
howerer, the Apottolic See may to wear the regular eplieopal dr
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 629 359
nity, but the property itself belongs to the diocese, vicari-
ate, or prefecture apostolic, if the religious is a residen-
tial bishop, vicar, or prefect apostolic. If he is none of
these, the property belongs either to the order, if the latter
is capable of possessing property, or to the Holy See, if
it is a mendicant order. A titular bishop is therefore
obliged to his monastery, or province or order, which may
claim all his belongings after his death. However, Car-
dinals may bequeath their appurtenances to a church, or
pious place, or religious community; otherwise they go
to the pontifical sacristy, with the sole exception of the
ring, pectoral cross, and reliquaries.1*
2. A religious who has not lost the right of owning
property by his profession, by promotion to a dignity
regains the use, usufruct, and administration of all the
property he possessed at the time of his profession ; and
what comes to him after his promotion, belongs to him
as owner. In other words, he does not differ in this
respect from a secular bishop.
3. However, a religious with solemn or simple vows, if
promoted to a dignity, must use all donations that he re-
a.
ceives according to the intention of the donor, unless they
are intended for his own person.
abdication
Can. 629
§ 1. Dimisso cardinalatu vel episcopatu vcl cxpleto
munere extra religionem sibi a Sede Apostolica com-
misso, religiosus ad religionem redire tenetur.
§ 2. Potest tamen Cardinalis et Episcopus religiosus
quamlibct suae religionis domum eligere in qua degat ;
scd caret voce activa et passiva.
is Can. 239, I r, 19; can. 1398. 8 1.
G] Original from
008IL UNIVERSITY 0FWI5C0NSIN
360 RELIGIOUS
When a religious cardinal or bishop resigns or goes out
of office, because his mission is discharged, for instance,
as a legate or special envoy of the Holy See, he must re-
turn to his institute. If he has held the dignity of cardinal
or bishop, he may choose any religious house for his
home, but is not entitled to either an active or a passive
voice. And this prohibition holds not only for the re-
spective house, but for the whole institute.'8 Of course,
if the religious dignitary is bound to return ad penates, his
institute is bound to support him.14
N
■
religious as pastors
Can. 630
§ 1. Religiosus, qui paroeciam regit sive titulo
parochi sive titulo vicarii, manet adstrictus ad observa-
tionem votorum et constitutionum, quatenus haec ob-
servatio potest cum muneris sui ofBciis consistere.
§ 2. Quare, in iis quae ad religiosarn disciplinam
attinent, subest Superior!, cuius proinde est, et quidem
privative respectu Ordinarii loci, in eius agendi ra-
tionem circa haec omnia inquirere eumque, si casus
ferat, corrigere.
§ 3. Bona quae ipsi obveniunt intuitu paroeciae cui
praeficitur, ipsi paroeciae acquirit; cetera acquirit ad
instar aliorum religiosorum.
§ 4. Non obstante voto paupertatis, eidem licet
cleemosynas in bonum paroecianorum, vel pro scholis
catholicis aut locis piis paroeciae coniunctis, quovis
modo oblatas accipere aut colligere, et acccptas sive
collectas administrare, itemquc, servata offerentium
voluntate, pro prudenti suo arbitrio, erogare, salva
semper vigilantia sui Superioris; sed eleemosynas pro
-
18 Paul IV. "In sacra," Julj 19. US. C. C, Sept. as. 1858.
1559. la.
G Original from
UOglt UNIVERSITY 0FWI5C0NSIN
CANON 630
361
ecclesia paroeciali aedificanda, conservanda, instaur-
anda, exornanda accipere, apud sc rctinere, colligerc
aut administrare pertinet ad Superiores, si ecclesia sit
communitatis religiosae; secus ad loci Ordinarium.
§ 1. A religious wlio governs a parish, either as pastor
or as vicar, remains bound by the vows and the constitu-
tions in so far as compatible with his office.
§ 2. Therefore, as to religious discipline, he is responsi-
ble, not to the Ordinary, but to his superior, who may
inquire into his conduct and correct him, if necessary.
§ 3. Property intended for the parish belongs to the
parish ; all else is acquired for his religious brethren.
§ 4. Notwithstanding the vow of poverty, he may col-
lect and receive alms for the benefit of his parishioners,
of Catholic schools and pious institutions connected with
the parish, and administer and distribute such alms ac-
cording to his own judgment and the intention of the
giver, under the supervision, however, of the superior.
But to receive, retain, collect, and administer alms in-
tended for the building, maintenance, restoration, and
ornamentation of the parochial church appertains to the
religious superiors if the church belongs to the religious
community ; otherwise to the Ordinary.
This last clause of § 4 seems impractical, and, in many
cases, wc fear, will prove unfeasible. Besides, it would
throw an unbearable burden on religious superiors who
have many parochial churches. Furthermore it may
cause troubles with regard to trustees and parishioners,
who are entitled to know how the money is spent.
Lastly, can. 533, § 1, n. 4, requires a separate account
for parish money and religious money. All this would
seem to demand a host of officials in the convent itself.
oogle
Original from
UNIVERSITY OF WISCONSIN
362 RELIGIOUS
It is an entirely new regulation which has yet to stand
the test of experience.
*
their relation to the ordinary
Can. 631
§ 1. Idem parochus vel vicarius religiosus, licet
ministerium exerceat in domo seu loco ubi maiores
Superiores religiosi ordinariam sedem habent, subest
immediate omnimodae iurisdictioni, visitationi et cor-
rection! Ordinarii loci, non secus ac parochi saecularesv
regulari observantia unice excepta.
§ 2. Ordinarius loci, ubi eum suo rnuneri defecisse
compererit, opportuna ciecreta condere ac meritas in
eum poenas statuere potest; in quo nihilominus Ordi-
narii facultates minime privativae sunt, sed Superior
ius cumulativum cum ipso habet, ita tamen ut, si alitor
a Superiore, aliter ab Ordinario decerni contingat,
decretum Ordinarii praevalere debeat.
§3. Quod attinet ad parochi vel vicarii religiosi
remotionem e paroecia, servetur praescriptum can.
454» § 5; e* quod ad bona temporalia, praescriptum
can. 533, § i, n. 4, ct can. 535, § 3, n. 2.
§1. Religious pastors or assistants, although exercis-
ing the sacred ministry in the house or place where the
higher superiors of the institute have their habitual resi-
dence, are immediately subject, in all matters concerning
their pastoral charge, to the jurisdiction, visitation, and
correction of the Ordinary of the diocese, just like secu-
lar pastors, with the sole exception of the regular disci-
pline.
§2. If a religious pastor or vicar neglects his duties,
the Ordinary of the diocese may issue opportune orders
and inflict merited penalties. However, he may not pro-
* Original fro m
ilKJglt. UNIVERSITY OF WISCONSIN
CANON 63!
363
a
-■
ceed by himself alone, but must proceed in union with the
religious superior ; if the decisions of the latter conflict
with those of the Ordinary, the latter's decree must pre-
vail.
§ 3. Concerning the removal of a religious pastor or
assistant, can. 454, § 5, must be observed, and as to the
temporalities, can. 533, § i, n. 4, and can. 535, § 3, n. 2.
>Ie
Original from
UNIVERSITY OF WISCONSIN
■
pi
TITLE XIV
TRANSFER TO ANOTHER RELIGIOUS INSTITUTE
(Transitus ad aliam Religionem)
Can. 632
Religiosus nequit ad aliam religionem, etiam stric-
tiorem, vel e monasterio sui iuris ad aliud trans ire sine
auctoritate Apostolicae Sedis.
No religious can, without authorization from the Holy
Sec, pass to another institute, even stricter, or from one
independent monastery to another.
This is now Lhe general rule, based partly on the old
law. For the rest, this whole Title is entirely newf as the
lack of quotations in Card. Gasparri's edition plainly indi-
cates. Hence the commentator, according to can. 6, must
interpret the law according to the wording of the text
itself, and only where a doubt arises, may he resort to
the old law.
The Council of Trent * forbade the passing of religious
from a stricter to a laxer order. A laxer order or con-
gregation was one which prescribed fewer external aus-
terities (fasting, abstinence, vigils, silence, labor). The
Carthusians were and are looked upon as the strictest.
A transition to a stricter order, if done from zeal to lead
a more perfect life, and with the permission of the supe-
rior, could formerly be effected without the interposition
of the Apostolic See.2 Now, however, no change is al-
i Sess. 25, c. 19 dc rfg. zC 5, X, III, 31.
364
( *ru"Milf> Original from
jf\^iOOglL UNIVERSITY OF WISCONSIN
CANON 632 365
lowed without papal permission. Note the term rcllgio,
which means a society of religious distinct from others,
whether an order or a religious congregation. Thus no
one is allowed to pass from the Benedictine to the Fran-
ciscan order, or from the Sacred Heart Sisters to those
of St. Joseph, or from one autonomous monastery to an-
other of the same institute. Autonomous monasteries
are complete juridical entities, and religious generally
make the profession for the monastery, not for the order
or congregation. The vow of stability is clearly empha-
sized. A Jesuit may therefore transfer himself from one
province to another, but a Benedictine or Cistercian may
not even change his monastery without papal permission.
Of course transfer is here understood as implying trans-
fer of the vows made for one monastery to another in-
dependent monastery. A temporary though protracted
transfer for reason of studies (can. 606), or help, or
removing occasions of sin (can. 66i, § 2), needs no Apos-
tolic indult. Here again we must add that the faculties
formerly granted to the Abbot Primate and abbot presi-
dents are no longer valid. Furthermore, it must be noted
that the text, by using the term religio, includes diocesan
institutes.
Can. 633
§ I. Transiens ad aliam religionem novitiatum pera-
gcre debet; quo durante, manentibus votis, iura et ob-
ligationes particulares, quas in religione derelicta
habuit, suspensa manent, et ipse obligatione tenetur
Superioribus novae religionis et ipsi novitiorum Ma-
gistro parendi ctiarn ratione voti obedientiae.
§ 2. Si in religione ad quam transiit, professionem
non eclat, ad pristinam religionem redire debet, nisi
interim votorum tempus exspiraverit.
Gi Original from
°°8IL UNIVERSITY OF WISCONSIN
sionem.
366 RELIGIOUS
§ 3. Transiens ad aliud monasterium eiusdem Or-
dinis nee ziovitiatum pcragit nee novarn cmittit profea*
§ 1. He who passes to another institute, must make a
novitiate, during which the vows remain intact, while the
rights and particular obligations which he had in the
former institute are suspended, and he is bound to obey
the superior of his new institute and the master of
novices even by virtue of the vow of obedience. This is
the substance of § 1 ; but what, for instance, if a member
of the Minimi, with his vow of perpetual abstinence and
fast, enters a less strict order ? The text says that " the
vows remain intact." We believe, however, that, since
o
the transiens has obtained permission from the Holy See,
the latter included a dispensation from, or rather sus-
pension of, the obligation of the particular vow, until the
novice has made profession. The vows mentioned are
chiefly the three principal vows of the religious state.
Vows privately made in the former institute may be
declared invalid or not binding by the lawful superior of
the new institute.8
a.
§ 2. If he does not make profession in the new insti-
tute, he must return to his old one, unless the term of his
vows expire in the interval. The latter clause, of course,
holds only in the case of temporary profession; hence,
in orders with triennial vows before the solemn vows.
a
and in religious congregations where annual vows are
made for a certain term before the perpetual vows are
taken. Should the time of temporary profession not
have elapsed when he would have to return, he must go
back to the former institute, or ask for a rescript of ex-
claustration until his time expires.
<
iCan. ijiaf.
gle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 634 367
o
§ 3. He who passes to another monastery of the same
order makes neither a new novitiate nor a new profes-
sion. Note the term order, because the text evidently
refers to such monasteries as are autonomous (siti iuris),
and to monastic congregations of the same order. Gen-
erally, a retreat of some days is prescribed before incor-
poration in the new monastery or congregation. There-
fore a change from one monastic congregation to another
only requires a papal indult, but no new novitiate or new
profession is necessary, no matter how different the dis-
cipline may be.
Can. 634
Sollemniter professus aut professus a votis simplici-
bus perpetuus, si transient ad aliam religionem cum
votis sollemnibus vel simplicibus perpetuus, post novi-
tiatum, praetermissa professione temporaria, de qua
in can. 574, vel admittatur ad professionem sollemnem
aut simplicem perpetuam, vel ad pristinam redeat re-
ligionem ; ius tamen est Superiori eum proband] diu-
tius, sed non ultra annum ab expleto novitiatu.
If a person who has made profession of solemn or of
simple perpetual vows joins another institute with solemn
vows or with simple perpetual vows, he must, after the
novitiate, omit the temporary profession spoken of in
can- 574. and make profession of solemn vows or of
simple perpetual vows, according to the institute, or he
must return to the former institute. The Superior, how-
ever, has the right to prolong the period of probation,
but not beyond one year after the completion of the
novitiate.
J Original from
OOglL UNIVERSITY 0FWI5C0NSIN
368 EELIGIOUS
Can. 635
Transcuntcs ad aliud monastcrium eiusdcm rcli-
gionis a die transitus, ad aliara vcro religionem ab
cdita nova professions
i.° Amittunt omnia iura ct obligationes prioris re-
ligionis vel monaster;! et alterius iura et offtcia sus-
cipiunt ;
a.° Rcligio vel monastcrium a quo bona servat, quae
ipsius religiosi ratione iam ei quaesita fuerunt; quod
spectat ad dotem eiusve fructus et alia bona personalia,
si qua habeat religiosus, servandum praescripturn, can.
551. § 2; demum nova religio ius habet pro novitiatus
tit
tempore ad iustam retributionem, si eidem locus sit ad
normam can. 570, § 1.
Those who pass to another monastery of the same in-
stitute, from the day of transition, but if to another insti-
tute, from the day of their new profession :
i.° Lose all the rights and obligations of their former
institute or monastery and assume all the rights and
duties of their new institute or monastery;
2° Abdicate, in favor of the monastery or institute
which they leave, the property that they may have ac-
quired as religious ; thus all books, chattels, donations or
legacies already received and appropriated by the former
institute or monastery belong to it. As to the dowry
and its interest and other personal property of the re-
ligious, if he had such, only the interest of the dowry
due during the novitiate goes to the new institute during
the term of the novitiate, whereas the dowry itself passes
to the new institute only after profession. If a Sister
passes from one convent of the same institute to another,
her entire dowry passes to the latter on the day of her
transfer. Besides, if the constitutions or mutual agree-
. Q
►ogle
k ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 636 369
St
a
ment permit compensation for board and habit, the same
must be made for the time of the novitiate.
Personal belongings are manuscripts, works of art, de-
votional articles, clothing. These go with the person.
Besides, any fortune or inheritance falling to the reli-
gious after the day of his passing from one monastery
to another of the same order, or from the day of pro-
fession in a new institute, belongs to the latter. Hence
title deeds, notes, etc., not cashed or used, must be handed
over by the former institute or house to the latter.
As to the dowry, a distinction was formerly made. If
the monastery or institute from which a transfer was
made, was the cause of the religious taking leave, it was
bound to restore the full dowry; but if no cause or fault
could be charged, it was only bound to a certain amount
of pro rata support.*
As to § 1 it may not be amiss to observe the following:
since the Code simply states that the rights and duties of
the new monastery are assumed, it is evident that no re-
striction as to these rights can be validly made as a
quasi-condition of admittance, if for instance active and
passive voice should be surrendered. Besides the Code
makes no reference to rule or constitutions, and there-
fore should these permit such restrictions, they are simply
out of force.
Can. 636
Sollemnitas votorum in eo qui legitime secundum
superiores canones vota simplicia in Congregatione re-
ligiosa nuncupate eo ipso exstinguitur, nisi aliud in
apostolico indulto expresse caveatur.
a
c
The solemnity of the vows of one who, according to
<
the foregoing canons, lawfully makes profession of sim-
«S. C. EE. et RR., May 30, 1856 (Bizzarri, p. 645 if.).
jle
k ,| , Original fro ni
UNIVERSITY OF WISCONSIN
370 RELIGIOUS
pie vows in a religious congregation, is by that fact abol-
ished, except an apostolic indult expressly determines
otherwise. In the light of this canon we believe the
interpretation given above of can. 633, § i, is completely
justified.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
a
■
-
TITLE XV
LEAVING THE RELIGIOUS STATE
By leaving the religious state is meant either a lawful
or an illicit breaking of the juridical bond by which one
is connected with a religious institute, which one entered
by profession. Profession, as we have seen, may be
either temporary or perpetual, and its effects vary, espe-
cially if perpetual profession is at the same time solemn.
One may leave the religious state in a perfectly lawful
way, or he may forsake it unlawfully. Of all these
points our Code treats, beginning with the most lawful
one, i. e., by the cessation of the obligation incurred by
temporary profession.
Can. 637
Professus a votis temporalis, expleto votorum tem-
pore, libere potest religionem deserere; pariter religio
ob iustas ac rationabiles causas eundem potest a reno-
vandis votis temporariis vel ab emittenda professione
perpetua excludere, non tamen rationc infirmitatis,
nisi certo probetur earn ante professionem fuisse do-
lose reticitam aut dissimulatarn.
One who has made profession of temporary vows may,
when the term of the vows has expired, freely leave the
institute; likewise, the institute, for just and reasonable
motives, can exclude a religious from renewing the tem-
porary vows or from making profession of perpetual
vows; not, however, because of ill-health, except it be
37i
oogle
Original from
UNIVERSITY OF WISCONSIN
372 RELIGIOUS
clearly proved that the religious had fraudulently hidden
or dissimulated the illness before profession.
From this text it again appears that temporary pro-
fession, whether triennial or annual, may truly be called
a protracted novitiate; otherwise a religious could not
leave the institute after his term has expired. Formerly,
i. e.t up to a few years ago, such a conception of the sim-
ple profession never occurred to anyone. What is said
in the second clause concerning the institute itself, that
it may refuse to admit a religious to solemn or perpetual
vows, is based on the same idea. Non-admittance is only
a milder form of telling a religious to break off his rela-
tions. But as the vow is not yet solved, the legislator
requires reasons. Such would be palpable signs of the
lack of a religious vocation, mental debility, protracted
absence from the services of the community, etc. In-
firmity or ill-health is not considered a lawful reason. A
decision of the S. C. of Bishops and Regulars * says that
if a sickly disposition should have existed prior to pro-
fession, this would be no reason for exclusion: but if the
religious himself concealed the state of his health by
fraudulent testimonies of a physician, or by his own as-
sertions, this would be a sufficient ground for not admit-
ting him to solemn or perpetual profession. A phy-
sician's testimony, accompanied by an affidavit to the
effect that the religious had deceived the institution by
his assertions, would be legal proof, as would also be the
testimony of two witnesses in whose presence the reli-
gious before his first profession asserted that he was in
good health if it can be proved by a physician's sworn
certificate that the illness existed before he entered ; for
in such a case deceit or fraud is evident. To conceal the
true condition of one's health is a merely negative act,
I May ij, 1904, O. S. B. {A. S. S., XXXVII. 443>-
ile
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 638 373
whilst to dissimulate it means to use positive means to
hide the truth. Both have the same effect, viz., to de-
ceive.
A question may here be asked: A cleric had made
profession, Aug. 15, 1915, therefore previously to May
19, 1918, and his vows were considered perpetual on his
part. On Aug. 15, 1918, his simple vows would expire.
May he apply our canon in his case and leave the reli-
gious state? We believe the affirmative answer would
be upheld by the Roman Court. For not only did it
look upon these simple vows as strictly triennial for at
least a few years prior to the Code, which we know from
personal experience, but the authentic answers given to
several questions lead to that assumption. Thus the an-
swer to the question concerning sponsalia and other im-
pediments contracted before the new Code went into
force was that betrothal and other impediments already
contracted and to be contracted were to be treated ac-
cording to the existing law.
secularization
Can. 638
Indultum manendi extra claustra, sive ternporarium,
idest indultum exclaustrationis, sive perpctuum, idest
indultum saecularizationis, sola Sedcs Apostolica in
religionibus iuris pontificii dare potest; in religionibus
iuris dioecesani etiam loci Ordinarius.
The Apostolic See alone can grant an indult, either for
temporary absence or perpetual secularization, to mem-
bers of papal institutes; whilst the Ordinary of the dio-
cese may grant such an indult to members of diocesan
institutes.
Temporary absence is called exclaustratio, or some-
< '.Annlp Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
-
■
pi
374 RELIGIOUS
times scrcularisatio ad tanpus, i. c.t permission to stay
outside the monastery for one or three years, after the
expiration of which the religious could apply for per-
petual secularization. Now he may get the latter at once,
but he must clearly state in his petition what he wishes.
If he is a priest or cleric in higher orders, he must send
in the documents of his superior with another from an
Ordinary who is willing to receive him into his diocese.
Both must be sent to the S. C. of Religious. The rea-
sons for the request (ill-health, necessary support of par-
ents, mental depression, unjust treatment, etc.) must be
stated in the petition.
Can. 639
Qui indultum exclaustrationis ab Apostolica Sede
impctravit, votis ceterisque suae professions obliga-
tionibus, quae cum suo statu componi possunt, manet
obstrictus; exteriorem tamen debet habitus religiosi
formam deponere; perdurante tempore indulti caret
voce activa et passiva, sed gaudet privilegiis mere
spiritualibus suae religionis, et Ordinario territorii ubi
commoratur, loco Superiorum propriae religionis, sub-
ditui etiam ratione voti obedientiae.
Whoever has obtained from the Holy See the indult of
exclaiistration, remains bound by his vows and the other
obligations of his profession compatible with his state.
There is no dispensation granted from the observance
of the vows, whereas other obligations imposed by the
rule or constitutions, for instance, concerning fast and
abstinence, discipline or scourging, and other penances,
may be dispensed with. As to the habit, the text says
that it must not be worn exteriorly, hence an interior sign
of it, as, for instance, a small-sized scapular or girdle, is
■"■
§le
( * -. ^ -J,-. Original fro rn
UNIVERSITY OF WISCONSIN
CANON 640
375
-
not forbidden. As long as the indult lasts the religious
has no right to either an active or a passive voice in the
institute, and hence could not be lawfully elected to an
office without a dispensation. But he enjoys the spir-
itual favors granted to his institute, especially the indul-
gences to be gained on certain feast days. Lastly, instead
of to the superior, he is subject to the Ordinary of the
diocese in which he lives, by virtue of the vow of obedi-
ence. Concerning poverty it may be added that he is
allowed as much as he needs for his support, but what-
ever he acquires belongs to the institute. If he wishes
to return, the institute must receive him without a new
novitiate.
SECULARIZATION PROPER
Can. 640
§ 1. Qui, impetrato saecularizationis indulto, reli-
gionem relinquit:
z.° A sua religione separating habitus eiusdem ex-
teriorem formam debet deponerc, et in Missa et horis
canonicis, in usu et dispensatione Sacramentorum
saeculahbus assimilatur ;
2.0 A votis liberatus manet, firm is oneribus ordini
rnaiori adnexis, si in sacris fuerit; non tenetur obliga-
tione horas canonicas vi professionis recitandi nee aliis
rcgulis et constitutionibus adstringitur.
§ 2. Si ex apostolico indulto in religionem rursus
recipiatur, novitiatum ac professionem instaurat et
locum inter professos obtinet a die novae professionis.
§ 1. When a professed religious, having obtained an
indult of secularization, leaves his institute:
i.° He is cut off from his institute and must lay aside
the religious habit and, as to Mass and canonical hours,
is likened to seculars;
►ogle
Original from
UNIVERSITY OF WI5CGNSI
376 RELIGIOUS
St
2.° He is freed from his vows, without prejudice to
the obligations attaching to major orders, if he has re-
ceived theiu ; he is not obliged to the recitation of the
canonical hours by virtue of his profession, nor is he
bound by other rules and constitutions.
§2. If, by virtue of an apostolic indult, he is received
again into the institute, he must make a new novitiate
and profession, and his place amongst the professed mem-
bers must be reckoned from the day of his new profes-
sion.
All this is new legislation and applies to religious of
both sexes. Since a complete separation takes place by
secularization, the mutual obligations between the insti-
tute and the individual religious cease, as do also the
rights. Therefore new by-laws to that effect should be
set up in conformity with the Code, especially concerning
property and claims to compensation. What the text
says concerning the Missal touches especially the Domin-
icans, who follow a somewhat different way in saying
Mass. The rule concerning canonical hours affects all
who have a Breviary different from that used by the
secular clergy. The vows are now — this is an innova-
tion— completely dissolved for all secularized religious
not in higher orders. There is no longer an obligation
to observe celibacy or to recite the Breviary, except, of
course, when the discharged member is in higher orders.
incard1nation vs. secularization
Can. 641
D
■"■
§ 1. Si religiosus in sacris constitutus propriam
dioecesim ad normam can. 585 non amiserit, debet,
non renovatis votis, vel obtento saecularizationis in-
dulco, ad propriam redire dioecesim et a proprio Ordi-
>ogle
v ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 641
377
nario recipi; si amiscrit, ncquit extra religionem
sacros ordines exercere, donee Episcopum benevolum
receptorern invenerit, aut Sedcs Apostolica aliter pro-
vider it.
§2. Episcopus religiosum recipere potest sive pure
et simplicitcr, sive pro experimento ad triennium: in
priore casu religiosus eo ipso est dioecesi incardinatus ;
in altero, Episcopus potest probationis tempus pro-
rogare, non ultra tamen aliud triennium; quo etiam
transacto, religiosus, nisi antea dimissus fuerit, ipso
facto dioecesi incardinatus manet.
§ 1. A religious in higher orders, who, having made
only temporary vows, has not been exeardinated from
his own diocese, must return to that diocese and be re-
ceived by his Ordinary, in case he has not renewed his
temporary vows or obtained an indult of secularization.
If, having made perpetual vows, he has been exeardi-
nated, he may not exercise the sacred orders outside his
institute until a benevolent Ordinary receives him into
his diocese or the Apostolic See otherwise provides for
him.
The last sentence is taken from " Auctis Admodum,"
Nov. 4, 1892, which also threatens the penalty of sus-
pension for those who leave the monastery before having
been received into a diocese or otherwise provided with
a sufficient patrimony. However, this penalty is not
mentioned in the Code and therefore abolished. But the
condition of having first found a bishop remains, unless
the Apostolic See makes different provision in its indult,
as it sometimes does when the secularized religious has a
sufficient patrimony and therefore need not resort to
means unbecoming to his state.
§ 2. The bishop may receive a secularized religious
jle
Original fro rn
UNIVERSITY OF WISCONSIN
378 RELIGIOUS
either unconditionally or on trial. If unconditionally,
the religious is by that fact incardinated in the diocese;
if on trial for three years, the trial may be protracted for
three years more, hence the whole term of trial may last
six years, but no longer; at the expiration of that term
the religious becomes ipso facto incardinated, unless he
was dismissed before.
This law is very opportune and does away with the
uncertainties apt to befall secularized religious. How-
ever, it is a new law which went into effect May 19, 1918,
and is not retroactive. A bishop may now give a secu-
larized religious a three or six years' trial and after that
the religious is ipso facto incardinated, unless the bishop
previously dismisses him from the diocese.
SECULARIZED RELIGIOUS PROHIBITED FROM HOLDING
CERTAIN OFFICES
D
Can. 642
§ r. Quilibet professus, ad saeculum regressus, licet
valeat, ad normam can. 641, sacros ordines exercere,
prohibetur tamen sine novo et speciali Sanctae Scdis
indulto :
i.° Quolibet beneficio in basilicis maioribus vel
minoribus, et in ecclesiis cathedralibus ;
2.0 Quolibet magisterio et officio in Seminariis
maioribus et minoribus seu collegiis, in quibus clerici
educantur, itemque in Universitatibus et Institutis,
quae privilegio apostolico gaudent conferendi gradus
academicos ;
3.0 Quocunque officio vel munere in Curiis episco-
Ul «...
palibus et in religiosis domibus sive virorum sive mu-
lierum, etiamsi agatur de Congregationibus dioece-
sanis.
jle
s -l] ^ Original from
UNIVERSITfOF WISCONSIN
CANON 642
379
§ 2. Hacc valent quoque de iis qui vota temporaria,
vel iuramcntum perseverantiae, vcl pcculiares quasdam
promissiones ad normam suarum constitutionum cdi-
derunt et ab eisdem dispensati fuerunt, si per sex in-
tegros annos eisdem ligati f uerint.
§ 1. A professed who leaves his institute may exercise
the sacred orders in accordance with can. 641, but unless
he receives a new and special indult to that effect from
the Holy See:
i.° He may not hold any ecclesiastical benefice in a
major or minor basilica or cathedral. This means that
no canonicate or prebend of any kind can be given to
him. If benefice is taken as synonymous with office, a
secularized religious is also debarred from the offices of
pastor or assistant at a cathedral church. However,
salvo meliori iudicio, since penalties are odious, we be-
lieve that benefice must be taken in the strict sense, and
excludes our cathedral churches, though it must be con-
fessed that the intention of the law would also affect
cathedral churches of our country.
2.0 He is not allowed to accept the office of teacher or
official in clerical seminaries, higher or lower (petit semi-
naries) in which clergymen are educated or in Catholic
universities or institutions endowed with the right of
conferring academic degrees (e. g., the Catholic Univer-
sity of America, St. Vincent's Seminary, Beatty, Pa.).
3.0 Neither may he hold any office or charge in an
episcopal court (chancellor, examiner, etc.), or in reli-
gious houses of men or women (as confessor or chap-
lain), although these may be diocesan institutions.
§ 2. These regulations apply also to those who pro-
nounced only temporary vows, or took the oath of perse-
verance, or made other promises according to their con-
>ogle
Original from
UNIVERSITY OF WISCONSIN
■
9
a
380 RELIGIOUS
stitutions, if they are dispensed from them, provided,
however, that they have lived under these obligations for
a period of at least six years. From this it follows that a
novice who left his institute before making his profes-
sion, or after his temporary profession expired, does not
fall under these rather severe restrictions.2 For the lat-
ter was not dispensed, but free to leave (can. 637), whilst
a novice needed no dispensation, had taken no vows and
made no promises. Wherefore the beginning of § 1,
'* Quilibet professus, ad sacculum rcgressus," although
somewhat general, must be interpreted according to § 2.
compensation
Can. 643
§ 1. Qui e religione, expleto votorum temporariorum
tempore aut obtento saecularizationis indulto, egredi-
antur vel ex eadem fuerint dimissi, nihil possunt
repetere ob quamlibet operam religion! praestitam.
§ 2. Si tamen religiosa sine dote recepta fuerit nee
ex propriis bonis sibimet providere valeat, religio ex
caritate eidem dare debet ea quae requiruntur ut
modo tuto ac convenienti domum redeat, ac providere
ut, naturali aequitate servata, per aliquod tempus,
mutuo consensu vel in casu dissensus ab Ordinario loci
determinanduni, honeste vivere possit.
§ 1. Whoever leaves his institute, whether at the ex-
piration of the term of temporary vows or by virtue of
an indult of secularization, or whoever has been dis-
missed, cannot seek compensation for the services ren-
dered by him to the institute.
§ 2. In the case of a female religious who has been re-
3 The S. C. Rel. (June is. iqoq) made these regulations to protect
the religious state.
i by Google
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 644
381
ceived without a dowry and cannot provide for her-
self out of her own resources, the institute should, in
charity give her what is necessary for her to return
safely and becomingly to her home, and provide her for
a certain period with the means, to be determined by
mutual agreement or, in case of disagreement, by the
local Ordinary, of an honest livelihood in accordance
with natural equity. Natural equity must take into con-
sideration the usefulness of the member as well as the
materia! condition in which she finds herself at the mo-
ment of leaving. Note the phrase, "ex caritate," as an
act of charity, not justice. Hence a member will appeal
in vain to the civil court if this canon is properly incor-
porated in the by-laws.3
APOSTATES AND FUGITIVES
Can. 644
§ 1. Apostata a religione dicitur professus a votis
perpetuis sive sollemnibus sive simplicibus qui e domo
religiosa illegitime egreditur cum animo non redeundi,
vel qui, etsi legitime egressus, non redit eo animo ut
religiosae obedientiae sese subtrahat.
§ 2. Malitiosus animus, de quo in § 1, iure praesumi-
tur, si religiosus intra mensem nee reversus fuerit nee
Superiori animum redeundi manifestaverit.
§ 3' Fugitivus est qui, sine Superiorum licentia,
domum religiosam deserit cum animo ad religionem
redeundi.
§ 1. An apostate from religion is one who, having
made profession of perpetual vows, whether solemn or
simple, unlawfully leaves the religious house with the
8 Cfr. Zolhuftnn, American Civil Church Low, p. 80 ff.
>ogle
Original fro ni
UNIVERSITY OF WISCONSIN
■
382 RELIGIOUS
intention of not returning or who, with the intention
of withdrawing himself from religious obedience, though
he has lawfully left the house, does not return to it
§ 2. The perverse intention mentioned in § 1, is legally
presumed when the religious has not returned within a
month nor manifested to his superior his intention of
returning.
It is illegal for a religious to leave the monastery with-
out the permission of the superior, whether he lays aside
his habit or not, provided he is determined not to return.
This intention is not present if he leaves the monastery
with the purpose of seeking a higher superior to demand
redress for supposedly unjust treatment by his own su-
perior.* Iff however, he transfers himself to another
religious institute without a papal indult, he is consid-
ered an apostate, because he wishes to withdraw himself
from the obedience due to the superior into whose hands
or for whose house he has made profession.8
The Code most reasonably gives one month for de-
liberation. After the lapse of that term the religious
who refuses to return is presumed to be an apostate. But
this presumption is only dc iurc and may be shattered by
ordinary proofs. Thus, for instance, if the religious
could prove by one trustworthy eye-witness that he wrote
to the superior and the letter was lost, the presumption
would cease ; or if the superior misplaced or neglected
to open the letter, and would find or open it later, pre-
sumption would be null, and the religious could not be
called an apostate. Thus, also, if the religious was pre-
vented by some accident from writing or returning home,
he would not be an apostate.
4 This is common teaching; cfr. Oct. at, 1588; "Ad Romanam,"
Piatus Ifq I. 196. Oct. 2i, 1589.
I Sixtua V, " Cum di omnibus,"
Go >gle
I t Original from
UNIVERSITY OF WISCONSIN
CANON 645
$3
—
■
§ 3. A fugitive is one who, without the permission of
his superiors, deserts a religious house with the intention
of returning to the institute. Here, too, a perverse in-
tention must be supposed, consisting in the will and de-
sire of getting rid of the obligation of religious obedi-
ence. To go away for fun or in a roaming spirit would
be merely a stealthy withdrawal.8 Neither must he be
considered a fugitive who dwells with persons who know
him well and have no suspicion of his irregular leave.7
The Code does not say how long a time must elapse until
a religious is to be regarded as a fugitive. This point
may be determined by the constitutions or by custom.
In houses where the religious may be absent for several
days without suspicion or attention, it would be unrea-
sonable to be hasty in branding one as a fugitive. Here
again it must be stated that every religious has the right
to seek a higher superior to obtain relief from injustice.9
obligations op apostates and fugitives
Can. 645
§ 1. Apostata et fugitivus ab obligatione regulac et
votorum minime solvuntur et debent sine mora ad
religionem redire.
§ 2. Superiores debent eos sollicite requirere, et
ipsos, si vera poenitentia acti redeant, suscipere ; redi-
tum vero monialis apostatae vel fugitivae caute curet
loci Ordinarius, et, si agatur de monasterio exempto,
etiam Superior regularis.
§ 1. Neither an apostate nor a fugitive is freed from
the obligation of his rule and vows, and must without
delay return to his institute.
• Piatui M., I, p. 205. 8 Santi-Leitner, III, 31, n. 45
T Sixtnt V, "Cum dt omnibus," (Vol. Ill, p. 313).
|«p.
oogle
Original from
UNIVERSITY OF WISCONSIN
384 RELIGIOUS
St
a
§ 2. The superiors must seek them with solicitude, and
receive them, if they return repentent; but as to apostate
or fugitive nuns, the local Ordinary shall prudently see
to their return, and the regular superior also, in the case
of an exempt monastery.
A decree of the S. C. of Bishops and Regulars 9 says
that apostates and fugitives who repair to a convent
of other regulars or religious, must be returned by the
superiors of that convent, and that deserters must return
s
under the penalties threatened for apostates. The penal-
ties against apostates and fugitives arc stated in can.
2385 f., infra.
Apostates in the strict sense of the word are subject
to excommunication, reserved to the higher superior if
the institute is exempt, or to the Ordinary of the diocese
in which they live. However, in the former case any
priest with ordinary faculties may absolve them (can.
519). If they are reserved to the Ordinary, the con-
fessor must have faculties from the same, which are also
granted to the canon penitentiary (can. 401).
Fugitives are deprived of any office they may hold and
suspended if they are clerics in higher orders. This sus-
pension is reserved to the higher superiors.
Should an apostate religious die outside his monastery
— concerning confession note that all reservations cease
in articulo mortis — his so-called property formerly was
held to belong to the Camera Apostolica.10 Now-a-days
the civil courts would probably decide in favor of the
religious institute or of the heirs, if the latter would
claim the property.
B Aug. 11, 1758 (Bizzarri, /, c, transfer to another institute; cfr.
p. 330)- ThiB decision proves the also cc. 7, 24, X, III, 31.
correctness of our interpretation as 10 Piatus M ., I, 204.
to the unlawfulness uf an arbitrary
►ogle
f* ^ -. ^L> Original fro ni
UNIVERSITY OF WISCONSIN
TITLE XVI
THE DISMISSAL OF RELIGIOUS
After mentioning legal and illegal egress from a reli-
gious institute, the Code draws attention to the part
which the institute itself may take in dismissing members
who are no longer regarded as desirable. Every society
must have ways and means for expelling unfit members.
The Code begins by mentioning three facts which entail
ipso facto dismissal.
Can. 646
§ z. Ipso facto habendi sunt tanquam legitime di-
missi religiosi :
i.° Publici apostatae a fide catholica;
2.0 Religiosus, qui fugam arripucrit cum muliere;
aut religiosa quae cum viro ;
3.0 Attent antes aut contrahentes matrimonium aut
etiam vinculum, ut aiunt, civile.
§ 2. In his casibus sufficit ut Superior maior cum suo
Capitulo vel Consilio ad normarn constitutionum
emittat declarationem facti; curet autem probationes
facti collectas in domus regestis asservare.
§ I. The following religious are ipso facto regarded as
lawfully dismissed:
l.° Religious who have publicly apostatized from the
Catholic faith;
2.0 A religious who has run away with a person of the
opposite sex ;
385
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
386 RELIGIOUS
3.0 Religious who attempt or contract marriage, even
civil marriage.
Apostates from the Catholic faith are those who re-
nounce Catholic doctrine or morality. Hence if a reli-
gious would openly deny even one article of faith, he
would be an apostate, the same if he became a Mohamme-
dan, or Buddhist, or Brahman, etc., or joined a heretical
sect, or became a M free-thinker," for it hardly seems
possible that any one could combine this state of mind
with the obsequium fidei — due submission to the faith.1
But, as stated, the defection must be public, i. e., either
by public profession, or by evidence obtained from official
sources.
Regarding n. 2, note that the intention of marrying
each other is not required. Marriage is considered in
n. 3. Those are said to attempt matrimony who cannot
contract a valid (even though " purely civil ") marriage
under the law of the Church.9
In all such cases the higher superior, with his chapter
or council, according as the constitutions prescribe, should
make a declaration of the fact and preserve the docu-
mentary proofs thereof in the archives of the house.
They are often needed later, especially if the apostate
religious should attempt a trial. The higher superior
is the one who, according to the constitutions, has the
right to dismiss. The constitutions must also determine
whether the superior must call the whole chapter, or the
counsellors only.
-
1 Avanzini, Comment, in " Apo- tracted b«fore the officials of the
stoiieae Sedis," 1883, p. 4 ft. state.
a A civil marriage is one con-
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CHAPTER I
THE DISMISSAL OF RELIGIOUS WITH TEMPORARY VOWS
Can. 647
§ 1. Profession a votis tempore ri is sive in Ordinibus
sive in Congregationibus iuris pontificii dirnittere
potest supremus religionis Moderator vel Abbas
monasterii sui iuris cum consensu sui Consilii per
secreta suffragia manifestato, vel, si agatur de moniali-
bus, Ordinarius loci et, si monasterium sit regularibus
obnoxium, Superior regularis, postquam monasterii
Antistita cum suo Consilio fidem de causis scripto
fecerit; in Congregationibus vero iuris dioecesani, Or-
dinarius loci in quo religiosa domus sita est, qui tamen
iure suo ne utatur Moderatoribus insciis vel dissen-
tientibus.
§ 2. Ii omnes, graviter eorum onerata conscientia,
religiosum dirnittere nequeunt, nisi servatis quae se-
quuntur :
i.° Causae dimissionis debent esse graves;
a.0 Possunt se habere sive ex parte religionis
sive ex parte religosi. Defcctus spiritus reli-
giosi qui aliis scandalo sit, est sufticiens dimissionis
causa, si repetita monttio una cum salutari poenitentia
incassum cesserit, non vero infirma valetudo, nisi
certo constet earn ante professionem fuisse dolose
reticitam aut dissimulatam ;
3.' Licet Superiori dimittenti certo innotescere de-
beant, non est tamen necesse ut formali iudicio com
387
oogle
Original from
UNIVERSITY OF WISCONSIN
388 RELIGIOUS
probentur. At religioso semper manifestari debent,
data eidem plena respondendi licentia ; eiusque respon-
siones Super iori dimittenti fideliter subiiciantur ;
4.0 Contra dimissionis deer e turn est religioso facul-
tas recurrendi ad Sedem Apostolicam; et pendente
recursu, dimissio nullum habet iuridicum effectum ;
5.0 Si de mulieribus agatur, servari debet praescrip-
tum can. 643, § 2.
N
§ i determines who are the superiors who may dis-
miss religious with temporary vows.
(1) In orders and congregations with papal approval
this right belongs to the superior general, in autono-
mous monasteries, to the abbot; but the general as well
as the abbot can only proceed with the consent of the
counsellors, which must be given by secret ballot. Note
the term " consent," which binds the superior under pain
of acting invalidly.
(2) If a nun is to be dismissed, the Ordinary may dis-
miss her after the superioress with her counsellors has
given a written attestation of the motives for the dis-
missal; if the convent is subject to regulars, the regular
prelate may also dismiss her. The declaration of 1858
permits the genera! to subdelcgate the business of dis-
missal to at least three prudent and honest religious for
distant provinces.1 This may still be admitted, accord-
ing to Regula Juris, n. 68 : " What one is permitted to
do himself, he may do through others. " The Code does
not exclude this assumption, but rather favors it (see
can. 668).
(3) In diocesan congregations the right of dismissing
a Sister belongs to the Ordinary in whose diocese the
-
<
1 S. C. super Statu Regul., June ia, 1858, n. IV (Bizxarri, I. t.t
p. 856).
Q
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 647
389
house is located. However, he should not act without
the knowledge of the superioress or against her just oppo-
sition. Such an arbitrary procedure would tend to relax
discipline and undermine the authority of the superioress.
§ 2. These superiors and Ordinaries can dismiss a re-
ligious only on the following conditions, the observance
of which constitutes for them a grave obligation in con-
science:
i.D The motives for the dismissal must be grave;
2.0 These motives may be either on the side of the
institute or on the part of the religious. Thus a scan-
dalous lack of the religious spirit would be a sufficient
reason. A religious who, though often admonished, and
even punished, refuses to mend his ways, may be dis-
missed. But ill-health, unless fraudulently concealed or
dissimulated before profession, would not be a sufficient
motive for dismissal.
3.0 Although the superior who is entitled to dismiss a
religious must be aware and certain of the motives, it is
not necessary that they be proved by a judicial process,
i. e., no witnesses, summonses, judge, plaintiff, and sen-
tence are required; not even written documents. How-
ever, says the Code, the motives must be made known to
the religious, and full liberty to reply given him ; and his
replies must be faithfully submitted to the superior ef-
fecting the dismissal.
4.0 The religious has the right to appeal against the
decree of dismissal to the Holy See, 1. e.t the S. Congre-
gation of Religious; and pending the appeal, which
should, of course, be notified to the superior, the dis-
missal has no juridical effect. This is a recourse or
appeal in suspensive
5.0 In the cose of religious women, can. 643, § 2, con-
cerning provision, must be observed.
oogle
Original from
UNIVERSITY OF WISCONSIN
390 RELIGIOUS
effects of dismissal
Can. 648
Religiosus dimissus ad normam can. 647 ipso facto
solvitur ab omnibus votis religiosis, salvis oncribus
ordini maiori adnexis, si sit in sacris, et firmo prae-
scripto can. 641, § i, 642; clericus autem in minoribus
ordinibus constitutus eo ipso redactus est in statum
laicalcm.
A religions (with temporary vows) dismissed accord-
ing to can. 647 is ipso facto freed from all his religious
vows, without prejudice to the obligations attaching to
major orders (celibacy and the Breviary) if he has re-
ceived them. A religious in higher orders who is dis-
missed by his superiors must return to his own diocese
and obey the prescriptions of can. 642. A cleric in minor
orders simply returns to the lay state.
Here a doubt occurs because of the wording of can.
642, § 2, where those who have made profession of tem-
porary vows are laid under said restr ict ions only in
case they have been professed for six years. Are they
obliged to the rule of said canon if dismissed before six
years have elapsed? We believe they are, because it is
not a mere voluntary dispensation, but a forced dispen-
sation by reason of dismissal, which the legislator wishes
to punish more severely. But we state this opinion with
all due reserve.
5 'rtrhnltf Original from
lOOgK UNIVERSITY OF WISCONSIN
N
CHAPTER II
DISMISSAL OF RELIGIOUS WITH PERPETUAL VOWS FROM A
NON-EXEMPT CLERICAL OR LAY INSTITUTE
Can. 649
In virorum religionibus clcricalibus non exeniptis et
laicalibus, ut professus a votis perpetuis dimitti possit,
pracccdant ncccssc est tria dclicta cum duplici rnoni-
tionc ac defectu emendationis ad normam can. 656-
662.
The dismissal of a member who has made profession
of perpetual vows in a non-exempt clerical or in a lay
institute is effected in pretty much the same way as in
an exempt clerical institute. The member to be dis-
missed must have been convicted of at least three of-
fences; he must have been admonished twice and proved
incorrigible. These points are further developed in can.
656-662.
Can. 650
§ 1. Hacc si constiterint, supremus religionis Mode-
rator cum suo Consilio, perpensis omnibus facti adiunc-
tis, deliberet num locus sit dimissioni.
§ 2. Si maior suffragiorum numerus pro dimissione
steterit ;
i.° In religione iuris dioecesani res tota deferatur ad
Ordinarium loci in quo religiosa professi domus sita
est. cuius est dimissionem pro suo prudenti arbitrio
decemere ad normam can. 647 ;
39i
*Ie
Original from
UNIVERSITY OF WI5C0NSI
Q
392 RELIGIOUS
2.0 In religione iuris pontificii ipse supremus reli-
gionis Moderator dimissionis decretum ferat; quod
tamen ut suum sortiatur effectum, debet a Sede Apo-
stolica confirmari.
§ 3. Religioso ius est suas ratio nes libere exponcndi;
eiusque responsiones in actis fideliier ref erendac sunt.
« o
When these facts (t. e.t the three offences, two admo-
nitions and incorrigibility) are ascertained, the superior
general of the institute with his council, having consid-
ered all the circumstances, shall deliberate whether the
case be one for dismissal.
If the majority of the votes are for dismissal:
l.° In diocesan institutes, the whole matter must be
referred to the Ordinary, in whose diocese the religious
house of the professed is located, and it rests with him
to decide on the dismissal according to his discretion,
conformably to the terms of can. 647;
2.0 In the case of papal institutes the superior general
issues the decree of dismissal; but to become effective it
must be ratified by the Apostolic See. This latter text
is taken from "Conditae" (II, 1), which says that the
superior general, in dismissing professed members, must
follow the rules of the institute and the pontifical de-
crees. But these constitutions should now be modelled
upon the new law.
§ 3. The religious has the right to freely expose his
reasons, and his replies must be conscientiously reported
in the acts, which arc to be forwarded to the S. Congre-
grcgation of Religious. In order to obtain this result,
it will be best to make an abstract of the papers proving
the offences, admonitions, and reasons staled by the re-
ligious and hand it over to the religious himself for his
signature.
>Ie
f ■ j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 651-652
393
Can. 651
§ 1. Etiam ad dimittcndas religiosas professas a
votis perpetuis sive sollemnibus sive simplicibus cxi-
guntur graves causae exteriores una cum incorrigibili-
tate, experimento prius habito ita ut spes resipiscentiae
evanucrit, iudicio Antistitae.
§2. Praescriptum can. 650, § 3 etiam in religiosarum
dimissione servandum est.
Also for the dismissal of religious women who have
made profession of perpetual vows, whether solemn or
simple, grave external reasons are required, together
with incorrigibility, experience having proved, in the
judgment of the superioress, that there is no hope of
amendment. The Sister, too, according to can. 650, § 3,
must be allowed to defend herself, and her reasons must
be faithfully inserted in the documents to be sent to
Rome.
Can. 652
§ 1. Si agatur de religiosis iuris dioecesani, Ordinarii
loci in quo sita est sororis professae domus, est causas
dimissionis expendere et decretum dimissionis ferre.
§ 2. Si de monialibus, Ordinarius loci omnia acta et
documenta transmittat ad Sacram Congregationem
cum suo et Supcrioris regularis voto, si monasterium
regularibus sit subiectum.
§3. Si de aliis religiosis iuris pontificii, suprema
religionis Moderatrix rem totam ad Sacram Congrega-
tionem pariter deferat cum omnibus actis et documen-
tis ; Sacra autem Congregatio turn in hoc turn in prae-
cedenti casu quod magis expedire censuerit, decernet,
firmo praescripto can. 643, § 2.
oogle
Original from
UNIVERSITY OF WISCONSI
394 RELIGIOUS
§ i. In the case of diocesan institutes the Ordinary in
whose diocese the house of the professed Sister is lo-
cated, must weigh the motives for and issue the decree
of dismissal.
§ 2. If there be question of nuns with solemn vows,
the local Ordinary shall transmit to the S. Congregation
of Religious all the acts and documents with a statement
of his own judgment and that of the regular superior if
the monastery be subject to regulars.
§ 3. For dismissing members of a papal institute,
the superioress general likewise shall transmit to the S.
Congregation the whole matter with all the acts and docu-
ments, but without expressing her own opinion ; where-
upon the S. Congregation shall decide the case, without
prejudice to can. 643, § 2, which guarantees a decent
material provision.
Can. 653
In casu gravis scandali exterioris vel gravissimi
nocumenti cornmunitati imminentis, religiosus statirn
potest a Superiore maiore cum consensu sui Consilii
vel etiam, si periculum sit in mora et tempus non
adsit adeundi Superiorem rnaiorem, a Superiore locali
cum consensu sui Consilii et Ordinarii loci, ad saecu-
lum remitti, habitu religioso illico deposito, ita tamen
ut res per ipsum Ordinarium aut per Superiorem
rnaiorem, si adsit, Sanctae Sedis iudicio sine mora
subiiciatur.
■
|M
-
In the case of grave external scandal or of very serious
imminent injury to the community, the religious may
be dismissed immediately by the higher superior with the
consent of his council, or even by the local superior with
the consent of his council and of the local Ordinary if
.'le
£ * ^ ^ ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 653
395
there be danger in delay and time does not admit of re-
course to the higher superior ; the religious must immedi-
ately put off the religious habit and the whole matter
must, without delay, be referred to the Holy See (S. C.
Rel.) either by the Ordinary or by the higher superior,
if he be present.
Note the gradation of grave scandal and very serious
imminent injury to the community. The scandal must
be external, i. e., known to outsiders, e. g., the surround-
ing parish or municipality, and deserving of the name
according to sound moral principles. Gossip or mere
prejudice is not scandal. Neither is there real scandal
if the fact is not notorious,1 i. e., known to more than
two or three persons. A very serious injury would
threaten a community if a member had misappropriated
large sums of money or proved a stumbling-block to other
members by seduction or violent outbursts of temper,
or caused suspicion of disloyalty ~ by foolish utterances or
actions or political intrigues.
The term consent supposes strict balloting and involves
the obligation on the part of the superior to abide by the
vote of the majority. In case of a tie, for instance, two
against two, his own vote would be decisive.
1 Cfr. can. 2197.
2 A disloyal citizen can hardly be
a good religious, because he is lack-
ing in obedience to the natural Iiw.
oogle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER III
T
the judicial process for the dismissal of religious
with terpetual vows in exempt clerical institutes
Can. 654
Vir professus a votis sollemnibus aut a votis sim-
plicibus perpetuis in religione clericali excmpta ne
dimittatur, nisi processu institute, salvo praescripto
can. 646, 668, ct revocato quolibet contrario privilcgio.
After stating the rules for dismissing members who •
have made profession of temporary vows only, whether
in orders or congregations, and for dismissing members
with perpetual vows in non-exempt institutes, including
nuns with solemn vows, the Code now proceeds to estab-
lish fixed rules for the dismissal of another class of reli-
gious, vis., members of male institutes with a clerical
character, which belong to the category of exempt reli-
gious. These institutes, permitting their members to
make profession of perpetual vows, occupy a higher place
in the hierarchic order, and being by reason of exemp-
tion withdrawn from the jurisdiction of the Ordinary,
demand special consideration. Note the term exempt,
which comprises not only orders of regulars proper, but
all clerical institutes endowed with exemption by virtue
of a papal indult. Hence the Passionists, the Redempto-
ists, the Missionaries of the Sacred Heart of Mary are
included, whereas all female orders or congregations, al-
though they may enjoy exemption, are excluded. A
396
N
■
Gi Original from
OOglt UNIVERSITY OFWISCONSIN
CANON 655
397
doubt arises as to laybrothers of exempt institutes; for
they belong to such and yet are not of the clerical order
proper. This doubt can only be solved by the authentic
interpreters. Can. 654 says : No male religious, who has
made profession of perpetual vows, whether solemn or
simple, in an exempt clerical institute, may be dismissed
except upon a canonical trial, every privilege to the con-
trary being revoked, save only the case stated in can. 646
and 668. What a canonical trial means the following
canons explain. The legislator revokes each and every
privilege which would render this law ineffective. Hence
if any order or exempt congregation has obtained a privi-
lege previous to May 19, 1918, concerning dismissal of
perpetually professed members without canonical trial,
that privilege is now invalid. The Code excepts only
two cases from this general rule, vis,: the one mentioned
in can. 646, which requires no trial, but only a declara-
tory sentence ; and the case of grave external scandal or
very serious injury threatening the community. With
these exceptions in view the legislator proceeds to out-
line the canonical trial. A trial requires a judge, a plain-
tiff, and a defendant, and, in criminal cases, also a crime
that is prosecuted. The canon immediately following
determines who is the judge in such trials.
Can. 655
§ x. Ad sententiam dimissionis ferendam competens
est supremus religionis vel monasticae Congregationis
Moderator cum suo Consilio seu Capitulo, quod qua-
tuor saltern religiosis constet; si qui deficiant, eorum
loco totidem religiosos eligat praeses de consensu
aliorum qui cum ipso tribunal collegiale constituant.
§ 2. Praeses de aliorum consensu promotorem iusti-
tiae nominet ad nor mam can, 1589, § a.
►ogle
Original from
UNIVERSITY OF WISCONSIN
398 RELIGIOUS
In centralized organizations the superior general is
the competent judge who issues the decree of dismissal;
in monastic congregations the abbot president is the
judge, but both the general and the abbot must have a
council or chapter consisting of at least four religious
whom they are obliged to consult. In case one or the
other of these counsellors be absent, the president may,
with the consent of the others, select ad hoc other reli-
gious, to form the collegiate tribunal. The president
with the consent of the other counsellors must appoint a
promotor iustitiae according to can. 1589, § 2,
Pope Urban VIII, in 1624, outlined the legal procedure
to be taken in case of the expulsion or dismissal (which
latter term is used exclusively in our Code) of religious.
But, as the decree of the S. C. Rel., of May 16, 1911,
stated, these formalities could not always be observed,
and hence had to be reduced to what is a summary pro-
cecding, which contains the essential elements of an
ecclesiastical trial without the accidental features that
might delay prompt action. It is this summary trial
which we find embodied in the Code, following the in-
struction of May 16, 191 1. The latter, therefore, must
form the basis of interpretation.
The persons constituting the tribunal are the superior
general with at least four " definers " or counsellors.
The abbot president takes the place of the judge in mon-
astic congregations. But he too must have at least four
counsellors. Hence let it be understood once for all that
all monastic congregations tHHSi at their general chapter
elect counsellors. These counsellors are not to be the
abbots of the single monasteries, but religious who dwell
with the abbot president and form a regular or collegiate
tribunal with him. The counsellors of the monastery
whose abbot acts as president for a certain term, gen-
Gw >gle
I , Orkiinalfrorn
UNIVERSITY OF WISCONSIN
CANON 655
399
crally three or six years, are not the counsellors of the
congregation, nor can they pretend to act as such. Only
in case the one or other of the duly elected counsellors
is ahsent, or missing, or dead, may the abbot president
appoint other religious in their stead. But in doing so
he must have the consent, to be given by ballot, of the
remaining counsellors, i. e., those who constitute the tri-
bunal. This is a point which should be clearly embodied
in the constitutions, and no abbot is allowed to set it
aside. The decree of the S. C Eel., May 16, 1911, adds
that if an abbey is not affiliated with any congregation, re-
course must in each single case be had to the Holy See.
This should remind all superiors of the importance of
the enactment stated above.
But the Code also insists upon appointing a prosecuting
attorney or promotor iustitiae. He is, according to § 2
of our canon, to be nominated by the superior general or
the abbot president "with the consent of the others."
Who are these others? According to § I they would be
the counsellors of the regular tribunal, and this explana-
tion may be accepted if the attorney is chosen for each
single case of dismissal. However, the decree of the
S. C. of Rel., quoted above, would have him elected by
the general chapter. And it is certainly more in con-
formity with the intention of the legislator that his office
be permanent or at least for a determined period or term.
Hence he, too, would have to be elected by the general
chapter. He must be a religious of the same order or
congregation, says the decree quoted, and his functions
are to defend justice and law : " pro iuris et legis tutela."
gle
Original from
UNIVERSITY OF WISCONSIN
■
400 RELIGIOUS
requisites of a trial
Can. 656
Ad processum instruendum deveniri nequit nisi
praecesserint :
x.° Gravia delicta externa sive contra ius commune
sive contra speciale religiosorum ius ;
2.° Mom t tones;
3.0 Defectus emendationis.
No judicial proceedings may be begun unless preceded
by:
i.° Grave external offences either against the common
law or against the special law of religious;
2.0 Admonitions;
3.0 Failure to amend.
Can. 657
Delicta debent esse saltern eiusdem speciei, vel, si
diversae, talia ut simul sumpta manifestent perversam
voluntatem in malo pervicacem, aut unum tantum
permanens. quod ex repetitis monitionibus virtualiter
triplex fiat
The ofFences committed must be at least three of the
same species or, if they are of different species, of such
a nature that when taken together they manifest the per-
versity of the will resolved on evil, or only one continu-
ous offence which, from repeated admonitions, has vir-
tually become threefold.
A grave external offence presupposes a public violation
of some important law, either of the common law of the
Church, in which case it comprises the whole range of
the Penal Code (Book V) ; or of the particular statutory
law set up by the respective institute. The essential fea-
.'le
£ * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 657
401
ture of a delictum or crime is that it be externally mani-
fest and cause injury to society at large or to the reli-
gious community.1 Thus not to wear the religious habit
is against the common law;2 entering saloons without
necessity is against the general law of the church,8 etc.,
etc. The special laws of each religious institute are laid
down in the respective constitutions, which differ in dif-
ferent orders. A common feature of all, we believe, is
the prohibition of stubborn resistance to the injunctions
of a superior when he commands in accordance with the
rule and constitutions. Thus a Benedictine would act
against his special laws by absenting himself without a
sufficient reason from choir-service. A mendicant would
transgress his rule if, without reason, he would refuse
to go begging as enjoined by the rule. A member of a
teaching order would transgress if he would refuse to
teach.
These offences, the Code says, must be grave and ex-
ternal, i. c, such as constitute a grievous sin, and be per-
petrated notoriously. For we believe we are justified if
we take external as synonymous with notorious. Notori-
ous, according to the Code, is an act which cannot be con-
cealed by any tergiversation or contrivance and excused
by no pretext of law or right.4 However, notoriety, as
shall be seen from can. 658, may be effected by still other
means, though even these suppose a certain measure of
public knowledge.
The Code distinguishes (a) Offences of the same
species, three in number, for instance, drunkenness com-
mitted on three different occasions; this is the numerical
-
-
x In secular law " a crime or mis-
dearnor is denned by Blackstone to
be an act committed or omitted in
violation of a public law, cither for-
bidding or commanding it." Bishop,
Commentaries on th< Criminal Lew,
ed. 6. Boston, 1877, 13a.
2 Can. 596, can. 136.
a Can. 138.
4 Can. 2197.
►ogle
Original from
UNIVERSITY OF WISCONSIN
N
■
402 RELIGIOUS
distinction; (b) Specifically different offences, for in-
stance, absence from choir, outbursts of ill-temper, re-
fusal to accept appropriate penances, which, taken to-
gether, show a lack of good will and no hope of amend-
ment; (c) One continuous offence, e. g., familiarity pro-
scribed by the constitutions ; but this must be, as it were,
split into three numerically distinct offences by the canon-
ical admonition. Of these the Code speaks in the fol-
lowing canons, 658-661.
canonical admonitions
Can. 658
§ 1. Ad monitionem faciendam necesse est ut aut
delictum sit notorium aut de eodem constet ex rei con-
fessione extraiudiciali vel ex aliis sufficicntibus proba-
tionibus quas praevia inquisitio suppeditaverit.
§ 3. In inquisitione peragenda serventur, congrua
congruis referendo, praescripta can. 1939 seqq.
Can. 659
Monitio fieri debet ad immediato Superiore maiori
per se vel per alium de eius mandato; sed Superior
mandatum ne det, nisi praevia informatione facti ad
norrnam can. 65S, § 1 ; datum vero mandatum pro
prima monitione valeat etiam pro altera.
c
Can. 660
Duae debent esse monitiones, scilicet singulae pro
singulis duobus primis delictis; in delictis autem con-
tinuatis seu permanentibus intercedat necesse est
inter primam et alteram monitionem saltern triura
dierum integrum spatium.
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
CANON 658-661
403
Can. 661
§ 1. Monitionibus Superior addat oppor tunas exhorta-
tiones ct correptiones, praescriptis insupcr poenitcntiis
aliisquc remediis poenalibus, quae apta censeantur ad
emendationem rei et scandali reparationem.
§ 2. Praeterea tenetur Superior reum ab occasionibus
relabendi removere etiara per translationem, si opus
fuerit, ad aliam domum, ubi facilior sit vigilantia et
remotior delinquendi occasio.
§ 3. Singulis monitionibus adiiciatur dimissionis
comminatio.
Can. 658 enjoins superiors not to proceed to canonical
admonition unless the offence be notorious or manifest
either from the extra-judicial confession of the culprit
or from other sufficient proofs furnished by previous in-
vestigation. This investigation must be conducted ac-
cording to the prescriptions of can. 1 939-1946. The
substance of these prescriptions is : a religious should be
appointed to make the investigation ; he is bound to strict
secrecy and exhorted not to believe hostile denunciations,
or to accept anonymous information or such offered by
untrustworthy persons ; he may secretly and confidentially
employ helpers and must report the result to the superior,
together with his own opinion. A sufficient proof, ac-
cording to a decree of May 16, 1911, would be the testi-
mony of two sworn witnesses. Authentic statements by
a civil court would also be admitted.
Can. 659 says that the canonical admonition must be
given by the immediate higher superior personally or by
another acting on his mandate. Hence the provincial
should give the admonition, or the local superior in vir-
tue of a special mandate or commission of the provin-
cial. But this commission must not be given by the
►ogle
Original from
UNIVERSITY OF WISCONSIN
404 RELIGIOUS
latter until he has obtained information on the facts,
according to can. 658, § 1. The mandate given for the
first admonition avails also for the second.
Can. 660 says that at least two admonitions must be
given : one for each of the first two offences ; but in
the case of continuous or permanent offences, an interval
of at least three whole days must elapse between the first
and second admonition.
Can. 661 provides that (§1) the superior shall add to
his admonitions opportune exhortations and corrections,
besides imposing penances and other penal remedies, —
for instance, retreats, removal from office, — which are
calculated to procure the amendment of the culprit and
o
the reparation of the scandal.
The superior is also bound (§ 2) to remove the culprit
from the occasions of relapse, even to the extent of trans-
ferring him, if necessary, to another house, where he
may be more easily watched and the occasion of offending
is more remote.
Lastly (§3) each admonition must be accompanied by
the threat of expulsion.
lack of amendment
Can. 662
Religiosus censetur se non emendassc, si post secun-
dam monitionem novum delictum commiserit vel in
eodem permanenter perstiterit; post ultimam moni-
tionem sex saltern dies erit expectandum, antequam
ad ulteriora progressus fiat.
The religious is considered not to have amended if,
after the second admonition, he commits a new offence or
perseveres in the old one ; after the last admonition, at
least six days must elapse before further steps be taken.
>Ic
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 663-664
405
Can. 663
Immediatus Superior maior, postquam monitiones et
correctiones incassum cesscrint, omnia acta et docu-
rnenta diligenter colligat et ad supremum Moderatorem
transmittal hie a utem ea tradere debet promotori
iustitiae, qui ea examinet et suas conclusiones pro-
ponat.
After the admonitions and corrections have proved
inefficacious, the immediate higher superior shall care-
fully collect all the materials and documents and send
the same to the superior general, who shall deliver them
to the prosecuting attorney, who shall examine them and
propose his deductions. We say, " deductions " for con-
clusion would mean the end of the allegations or proofs
together with a renunciation of further investigation,*
which cannot be the meaning here. The prosecuting at-
torney is simply to deduce from the materials submitted
some opinion and submit the same.*
Can. 664
§ 1. Si promoter iustitiae, cui fas est etiam ulteriores
inquisitiones, quas opportunas iudicaverit peragere,
accusationem proponat, instruatur processus, servatis
praescriptis canonum in Parte Prima Libri Quarti,
congrua congruis referendo.
§ 2. Ex processu constare debet de delictis patratis,
de praemissa duplici monitione et de defectu emenda-
tionis.
After the prosecuting attorney, who may demand fur-
ther investigations to be made if he deems fit, has formu-
5 Cfr. Reiflenstuel, II, 19, n. 159.
6 It is evident that the ihhot
president must not send the material
to the Abbot Primate, because the
former is the supreme superior ia
monastic congregations; besides the
Abbot Primate has no council or
chapter.
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
406 RELIGIOUS
lated the accusation, the regular trial may begin. In this
trial, the Code says, the prescriptions of the first part of
Book IV (concerning ecclesiastical procedure) must be
observed. These are briefly: that the judge be compe-
tent, that the plaintiff (who is generally the institute
itself) be duly represented and follow the rules pre-
scribed, that the witnesses be beyond suspicion, that the
summons be made according to the established rules, that
the admonition be served in a proper way, that the neces-
sary time be granted for defence, that exceptions and
appeals be admitted, that the sentence be issued properly.
All this, of course, requires a knowledge of Canon Law.
The trial itself, says § 2 of our canon, must make it evi-
dent that the offences were really committed, that the
two canonical admonitions were duly given, and that the
culprit did not amend his conduct. These are the prin-
cipal points to which the prosecuting attorney should de-
vote his attention. If one of these cannot be proved, the
trial comes to naught.
sentence of the tribunal
Can. 665
Tribunal, diligenter perpensis allegationibus turn
promotoris iustitiae turn rex, si quidem iudicaverit
satis probata esse ea de quibus in can. 664, §2, senten-
tiam dimissionis pronuntiet.
■
After the tribunal has carefully weighed the allega-
tions or pleas of both the prosecuting attorney and the
defendant, it may pronounce sentence of dismissal, pro-
vided it has found the three points mentioned in can. 664,
§ 2, sufficiently proved. The sentence must be pro-
nounced by the judge, i. e., the superior general or the
abbot president, who must be morally certain of the truth
*Ie
I , Original from
UNIVERSITY OF WISCONSIN
CANON 666-667
407
regarding all three points.7 The sentence is called defini-
tive because the end of the trial (vis., dismissal) is at-
tained.
ratification of the sentence
Can. 666
Scntentla exsecutioni mandari acquit, nisi fuerit a
Sacra Congrcgatione confirmata; ad quam tribunalis
praeses ct sententiam et omnia acta processus quam-
primum transmittere curabit.
The sentence pronounced by the tribunal shall take
effect only after it has been ratified by the S. Congrega-
tion of Religious, to which all the acta as well as the sen-
tence itself must be forwarded by the president of the
tribunal. Note that the S. Congregation will handle no
case unless at least a preliminary attempt has been made
by the religious tribunal to bring forward material enough
for a decision. Hence it would be useless to refer a case
to the S. Congregation without papers and a previous
sentence, simply to shirk the obligation of a trial. Of
course, if a dispensation is demanded, the case may go
immediately to the S. Congregation.
delegation of trial
Can. 667
Pro dissitis rcgionibus etiam in casibus ordinariis
supremi Moderatores cum consensu sui Consilii scu
Capituli possunt dimittendi facultatem demandare pro-
bis ac prudentibus religiosis, qui saltern tres esse de-
bent, firmo praescripto can. 663-666.
For distant provinces the superior general may,
1 Cfr. can. 1868 ff.
even
oogle
Original from
UNIVERSITY OF WISCONSIN
4o8
RELIGIOUS
in ordinary cases, with the consent of his council or
chapter, delegate the power of dismissal to trustworthy
and prudent religious, who must be at least three in num-
ber and follow the prescriptions of can. 663-666. It is
generally understood that the dissitae regiones are those
beyond the Atlantic Ocean, but even Great Britain is, or
was formerly, considered a distant and remote country.8
Can. 668
■
In casu, de quo in can. 653, religiosus statim potest
a Superiore maiore. vel si periculum sit in mora et
tempus non adsit recurrendi ad Superiorem maiorem,
a Superiore quoque locali, cum consensu sui Consilii,
ad saeculum remitti, habitu religioso illico deposito;
religioso autem dimisso, statim processus, si nondum
fuerit institutus, inst'tuatur ad normam canonum qui
praecedunt.
This canon is a rehearsal of can. 653, with the excep-
tion of the last clause: after the religious has been dis-
missed, a trial (if it had not yet begun) must be started
according to the preceding canons.
■ Whether the abbots president*
may delegate the power of dismissal
to other religious ii not plainly
stated in the text. However, con-
sidering the great distances in our
countries, we believe that, ao least
In extraordinary coses, as tha S- C.
Super Statu Regul., June 12, 1858,
n. IV (Uizzarn, /. c, p. 856) says,
delegation would be admissible and
certainly valid.
gle
Original from
UNIVERSITY OF WI5C0NSI
CHAPTER IV
DISMISSED RELIGIOUS WITH PERPETUAL VOWS
Can. 669
§ 1. Professus qui vota perpetua emisit, a religione
dimissus, votis religiosis manet adstrictus, salvis con-
stitutionibus aut Sedis Apostolicae indultis quae aliud
fcrant.
§ 2. Si clericus est in minoribus ordinibus constitu-
te, eo ipso reducitur ad statum laicalcm.
A dismissed professed religious remains bound by his
religious vows, unless the constitutions or a papal indult
determine otherwise. A clergyman in minor orders is,
by dismissal, reduced to the lay state.
Can. 670
Clericus in sacris qui aliquod delictum commisit de
quo in can. 646, aut dimissus est ob delictum quod
iure communi punitur infamia iuris vel deposition*
vel degradation*, perpetuo prohibetur deferre habitum
ecclesiasticum.
A cleric in higher orders, who has publicly apostatized
from the Catholic faith, or run away with a woman, or
attempted marriage, is forever debarred from wearing the
ecclesiastical garb. The same punishment follows him
if he is dismissed from his institute on account of a
crime which in common law is qualified as infamous, or
punished with deposition or degradation.
409
►ogle
Original from
UNIVERSITY OF WISCONSIN
410 RELIGIOUS
In these two canons the Code states the general penal-
ties for dismissed religious. Note the title of the chap-
ter: it embraces all religious who have made profession
of perpetual vows, because the legislator does not dis-
tinguish between clerical and non-clerical, exempt and
non-exempt religious. Only the constitutions ■ or a papal
indult may absolve them from the obligation of observ-
ing the vows. Hence a dismissed religious must observe
the vow of poverty as far as his condition permits.
What he acquires really belongs to the religious com-
munity. Here the civil law might interfere, unless the
by-laws fix the point. As to the vow of chastity, the
difference between simple and solemn vows is unchanged,
that is to say, the former do not debar valid marriage,
whereas solemn vows render an attempted marriage in-
valid. The vozu of obedience to the religious superior
also remains in force as do the special vows of the insti-
tute. However, many reliable authors — the Code does
not oppose their opinion — declare such religious free
from the obligation of the Breviary and fasts, etc.9
Can. 670 singles out the case of a religious cleric in
higher orders — those in minor orders, dealt with in can.
669, § 2, lose their clerical rank — who has committed
one of the offences mentioned in can. 646, or a crime
which is punishable by infamy, whether inflicted by law,
or ipso facto (see Book V).a Another class of crimes is
that which the law expressly punishes with degradation *
or deposition.* Notice that infamy by law here men-
tioned is infamy branded as such by ecclesiastical, not
1 This concerns members of the n. a; 2351, 5 ?: '356; 2357. I 1.
Society of Jesus with simple vows: 4. Can. 2314, { I, n. 3; 2343, | 1,
Greg. XIII, "Ascendentg Domino," n. 3; 2354, f 2; 2368, I 1; 2388, | 1.
I 7- s Can. 2314. I 1, n. a; *j«, | «;
a Piatus M., I, p. 223. 2353, J 2; 2379; 2304 n. 2; 2401.
• Can. 2320, 2343, 9 1. n. a; | a,
ogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 671
4"
civil, law. Some crimes, such as larceny, forger)', per-
jury, are also declared infamous crimes by our civil laws.*
On the other hand, the differing views as to the solubil-
ity of marriage may cause a difference of procedure be-
tween Church and State, although the latter looks upon
polygamy as infamous at least by statutory law.
status of dismissed religious
Can. 671
Si vero dimittatur ob delicta minora iis de quibus
in can. 670:
i.° Ipso facto suspensus manet, donee a Sancta Sedc
absolutions obtinuerit ;
a.0 Sacra Congregatio, si id expedire iudicavcrit,
dimisso praecipiat ut, habitu cleri saecularis indutus,
commoretur in certa dioecesi, indicatis Ordinario
causis ob quas di missus fuit;
3.0 Si dimissus praecepto de quo n. 2 non paruerit,
religio ad nihil tenetur, et dimissus eo ipso privatus
est iure def erendi habitum ecclesiasticum ;
4.0 Ordinarius dioecesis pro eius commoratione
designatae, religiosum in domura poenitentiae mittat,
eel cum committat curae et vigilantiae pii ac prudentis
sacerdotis; et si religiosus non paruerit, servctur
praescript urn n. 3 1
5.0 Religio, per manus Ordinarii loci commorationis,
caritativum subsidium dimisso suppeditet pro neces-
sariis ad vitae sustentationem, nisi ipse aliunde sibimet
providere valeat ;
6.° Si dimissus vitae rationem ecclesiastico viro dig-
nam non agat, transacto anno aut ctiam prius, iudicio
Ordinarii, privetur caritativo subsidio, eiiciatur e
6 Bishop, Criminal Low, 1877, I, 5 974; I $03.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
■
41* RELIGIOUS
domo pocnitentiae eique auferatur ius deferendi habi-
tum ecclesiasticum ab ipso Ordinariov qui statim rnit-
tere curet opportunam relationem turn ad Sedcm Apo-
stolicam turn ad religonem;
7.0 Si vero di missus praedicto tempore tarn lauda-
biliter se gessetit ut merito haberi possit vere emen-
datus, Ordinarius eius preces apud Sanctam Sedcm
commendabit pro absolutione a censura suspensions,
et, ea obtenta, eidem in sua dioecesi permittat, adhi-
bitis opportunis cautelis et limitationibus, Missae
celebrationem et etiam, pro suo arbitrio et prudentia,
aliud sacrum minis terium, unde honcste vivere queat;
quo in casu religio caritativum subsidium intermittere
potest. Quod si agatur de diacono aut subdiacono, res
ad Sanctam Sedem deferatur.
The legislator now determines the status of one who,
having pronounced perpetual vows, is dismissed on ac-
count of a lesser offence, i. e., one not mentioned in can.
646, nor entailing infamy, degradation, or deposition.
Such a religious (1) remains suspended until he has ob-
tained absolution from the Holy See. This absolution
must be asked from the S. Congregation of Religious,
as the following number insinuates. (2) The S. Con-
gregation may command the religious to stay in a certain
diocese and indicate to the Ordinary of the same the rea-
sons for which the religious was dismissed. (3) If the
dismissed docs not abide by the injunction just named,
the institute is under no further obligation towards him,
and the culprit is deprived of the right of wearing the
ecclesiastical garb. Formerly it was believed that a re-
ligious properly dismissed could claim no support from
his former institute. The Code humanely provides that,
as long as he abides by the injunction of the S. Congre-
p
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 671
413
gation, he is entitled to the necessary means of subsist-
ence from his institute, as is evident from n. 5. (4) The
Ordinary in whose diocese the dismissed dwells for the
time being, shall either send him to a house of penance
or entrust him to the care and supervision of a pious and
prudent priest; if the religious does not heed the Ordi-
nary's command, the rule under n. 3 takes effect. (5)
The institute shall grant, through the Ordinary in whose
diocese the dismissed religious lives, the necessary liveli-
hood, unless he possesses other means of subsistence.
Therefore a religious with simple vows, who retains the
right to own property and is blessed with earthly goods,
must provide for himself. Besides, it is evident that, in
case one is admitted to the sacred ministry, he does not
need this charitable subsidy from the religious institute
(n. 7). The intention of the legislator is evidently to
keep dismissed religious from engaging in a sordid occu-
pation or begging. (6) If the dismissed religious leads
a life not conformable to the ecclesiastical state, the Or-
dinary shall, after one year, or even sooner if he deems
it opportune, deprive him of the charitable support
granted by his former institute, remove him from the
house of penance, and deprive him of the right of wear-
ing the ecclesiastical garb. He should report the case
immediately to the Holy See and also inform the religious
institute. (7) If, however, the conduct of the expelled
religious has been praiseworthy for a whole year, so that
he may be considered as having amended his life, the
Ordinary may petition to have him absolved from sus-
pension, and, if absolution has been obtained, permit him
to say Mass under certain precautions and restrictions,
e. g., on certain days only, and in private oratories, in the
presence of trustworthy persons, etc. He may then also
be admitted to other functions of the sacred ministry, in
>Ie
Original from
UNIVERSITY OF WISCONSIN
414 RELIGIOUS
order to gain a livelihood, and in that case the charitable
subsidy T from the religious institute may cease. As to
deacons or subdeacons, the matter must be referred to
the Holy See.
u
OBLIGATIONS OF DISMISSED RELIGIOUS
Can. 672
§ 1. Dimissus, votis in religione emissis non solutus,
tcnetur ad claustra redire; et si argumenta plenac
cmcndationis per triennium dcderit, religio tcnetur
cum recipere ; quod si graves obstent rationcs sivc ex
parte rcligionis sive ex parte religiosi, res iudicio Sedis
Apostolicae subiiciatur.
§ 2. Quoties vero vota in religione emissa cessave-
rint, si dimissus episcopum benevolum receptorem in-
venerit, sub eius iurisdictione et speciali vigilantia
mancat, scrvato praescripto can. 642; secus res ad
Sanctam Sedem deferatur.
The dismissed religious is not free from the obliga-
tions of his vows (whether the three substantial or spe-
cial vows),8 and as these obligations cannot be fully com-
plied with in the world, he is bound to return to the mon-
astery. The latter, on the other hand, on account of the
existence of a bilateral contract, is obliged to receive him
back if he gives signs of complete emendation. Should
serious reasons, either on the part of the institute or of
the expelled member, militate against his being received
back, the matter may be submitted to the decision of the
Holy See. Such reasons according to canonists would
7 Note that the text always speaks 8 Such a special vow is that of the
of a " charitable subsidy," from Jesuits to go on minions and that
wliich we may conclude that there of the Minimi to observe perpetual
is no question of a strict right en- abstinence.
forcible by civil authority.
►ogle
Original fro rn
UNIVERSITY OF WISCONSIN
CANON 672
4*5
be : scandal to innocent souls, grave detriment to the good
standing of the institute resulting from a grievous crime
committed by the religious after his dismissal, or an im-
moral life led by him and witnessed by trustworthy per-
sons, or an incurable contagious disease.0
If the vows have ceased to be effective, through a dis-
pensation granted by the Holy See or by virtue of the
constitutions, as is the case with the simple vows of the
Jesuits, the dismissed religious may apply to a bishop
to be received into his diocese. If he is received, he
must live under the jurisdiction and special supervision
of the Ordinary, without prejudice to the restrictions of
can. 642; otherwise the matter must be referred to the
S. Congregation of Religious.
0 Piatua M., I, p. 324.
oogle
Original from
UNIVERSITY OF WISCONSIN
TITLE XVII
■
societies of men or women living in a community
without vows
different kinds of communities
Can. 673
§ 1. Societas sivc virorum sive mulierum, in qua
sodales vivendi rationern religiosorum imitantur in
communi degentes sub regimine Superiorum secundum
probatas constitutiones, sed tribus consuetis votis
publicis non obstringuntur, non est proprie religio,
nee eius sodales nomine religiosorum proprie designan-
tur.
§ 2. Huiusmodi societas est elericalis vel laicalis,
iuris pontiBcii vel dioecesani ad normam can. 488, nn.
3>4-
Every society, whether of men or women, whose mem-
bers imitate the manner of life of religious by living in
community under the government of superiors accord-
ing to approved constitutions, but without being bound
by the usual three vows, is not properly a religious insti-
tute, nor are its members properly called religious. Such
a society is clerical or lay and must be acknowledged
either by the Holy See or by the Ordinary, and therefore
be either a papal or a diocesan foundation. The most
prominent societies of this class are the Lazarists or
416
I Original from
lOOglC UNIVERSITY OF WISCONSIN
CANON 675
417
Missionaries of St. Vincent de Paul, the Oratorians of
St. Philip Neti, and the Fathers of the Precious Blood.1
establishment and suppression
Can. 674
Circa erectionem et suppressionem societatis eiusque
provinciarum vcl domorum, eadem valent quae dc
Congregationibus religiosis constituta sunt.
As to the erection and suppression of such an approved
society and its provinces or houses, the same laws apply
as are laid down for religious congregations.
government
Can. 675
Regimen determinatur in uniuscuiusque societatis
constitutionibus ; sed in omnibus serventur, congrua
congruis ref erendo, can. 499 530.
The government of every such society is determined
by its constitutions, but, preserving due proportions,
canons 499-530 must be observed by all. The general
rule is that they are subject to the Ordinary in whatever
pertains to the care of souls, whereas in the administra-
tion of their own property, in the internal government of
their institutes, choice of confessors and chaplains the
societies of men at least enjoy independence. However,
the following canon must also be considered.
1 Their institute was recofrnized
and the Constitutions were approved
by the S. C. EE. et RR.. Dec. 17,
1841. The constitutions contain the
" general rule " and a special Amer-
ican observance. They, too, must
now accommodate themaelves, not
to the "Audit Admodum," but to
the new Code.
►ogle
i
Original from
UNIVERSITY OF WI5CGNSI
■
-
-
418 RELIGIOUS
administration of property
Can. 676
§ 1. Societas eiusque provincial et domus capaces
sunt acquirendi et possidendi bona temporalis.
§ a. Administratio bonorum regitur praescripto can.
532-537-
§ 3- Quidquid sodalibus obvenit intuitu societatis,
eidem acquiritur; cetera bona sodales secundum con-
stitutions retincnt, acquirunt et administrant.
Every society, and its provinces and houses, are capa-
ble of acquiring and possessing property. The adminis-
tration of the property is regulated by canons 532-537.
Whatever property the members acquire with a view to
the society belongs to it ; as to other property, the mem-
bers retain, acquire, and administer it according to the
constitutions.
admission
Can. 677
In admittendis candidates serventur constitutiones,
salvo praescripto can. 543.
For the admission of candidates the constitutions are
to be observed, without prejudice to the prescriptions of
can. 542.
STUDIES
Can. 678
In iis quae ad studiorum rationern et ad suscipiendos
ordines pertinent, sodales iisdem legibus tenentur ac
saeculares clerici, salvis pecularibus praescriptionibus
a Sancta Sede datis.
►ogle
, .,!,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 679-^80
419
In matters pertaining to studies and the reception of
orders, the members are governed by the same laws as
secular clerics, without prejudice to the particular pre-
scriptions given by the Holy See. Cfr. can. 1365 ff.,
995 «.
DUTIES
Can. 679
§ 1. Sodales societatis, praeter obligationes quibus,
uti sodales, obnoxii sunt secundum constitutiones,
tcnentur communibus clericorum obligationibus, nisi
ex natura rci vel ex sermonis contextu aliud constet,
pariterque stare debent praescriptis can. 595-612, nisi
constitutiones aliud ferant.
§ 2. Clausuram ser vent ad normam constitutionum
sub Ordinarii loci vigilantia.
The members of a society, besides the obligations to
which the constitutions bind them as members, are bound
by the common obligation of clerics, except it appears
otherwise from the nature of the case or from the con-
text. They shall observe the law of enclosure (set forth
in can. 595-612) according to the terms of their consti-
tutions, under the supervision of the local Ordinary.
privileges
Can. 680
Iidem, etiam laici, gaudent clericorum privileges, de
quibus in can. 119-123, aliisque societati directe con-
cessis, non autem privilegiis religiosorum sine special!
indulto.
The members, even lay members, of such societies,
enjoy the privileges of clerics enumerated in can. 119-
oogle
Original fro ni
UNIVERSITY OF WISCONSI
■
420 RELIGIOUS
123, and other privileges accorded directly to the society,
but not the privileges of religious, without a special indult.
leaving a society
Can. 681
Praeter proprias cuiusque societatis constitution's,
circa transitum ad aliam societatem vel ad aliquam
religionem aut circa sodalium exitum a societate etiam
iuris pontificii, serventur, congrua congruis referendo,
praescripta can. 632-635, 645 ; circa eorum dimissionem,
praescripta can. 646-672.
Besides the constitutions proper to each society con-
cerning the passing to another society or to some insti-
tute, or the departure of members from a society, even
though it be approved by the I Ioly Sec, the prescriptions
of can. 632-635 and 645 are to be observed, due propor-
tion being maintained; and as to their dismissal, the
prescriptions of canons 646-672 are to be followed.
gle
,1,., Original from
UNIVERSITY OF WISCONSIN
PART III
THE LAITY
After determining the distinction between clergy and
laity, and establishing the hierarchic order in its gen-
eral and special functions and degrees, the Code lays
down rules for a state which in its essence is neither
hierarchic nor clerical, yet partakes more of the clerical
than of the lay state. This is the large body of religious
of whom this volume has so far treated. Now the legis-
lator turns to a still larger class of members, who form
the great bulk of the Church established by Christ, vis.,
the laity, more especially as united or organized into con-
fraternities and pious unions. This at first sight seems
like slurring the lay state as such, but the slur is only
apparent, for the entire third book is devoted to the re-
ception of the Sacraments, the feasts and fasts, ecclesias-
tical teaching and other matters preeminently intended
for the laity.
Can. 682
Laid ius habent recipiendi a clero, ad normam ecclc-
siasticae disciplinae, spiritualia bona et potissimum
adiumenta ad salutcm neccssaria.
As far as ecclesiastical discipline permits, laymen are
entitled to receive from the clergy spiritual benefits, espe-
cially the means necessary for salvation. The reason for
this general principle lies partly in the fact that laymen
431
od by GoOgle
Original fro ni
UNIVERSITY OF WISCONSIN
422 RELIGIOUS
%
belong to the Church and must therefore be sanctified,
taught, and governed, partly in the fact that the Sacra-
ments are instituted for the salvation of men, and lastly
that the clergy is the custodian and dispenser of the
treasures of grace. The phrase, " ad norntam ccclesi-
asticae disciplinae" means that although all Catholics are
entitled to the spiritual benefits, yet certain rules must be
observed in the reception and distribution of them. Thus
only actual and faithful members are in a condition to
receive the spiritual bounties offered by the Church,
whereas unworthy and disloyal members are debarred
from certain benefits either for a time, or until they have
complied with the conditions imposed. From this point
of view it will be readily understood that the Sacraments
especially may be given only to such members as are
neither excommunicated nor unworthy to receive them.
Besides, it is a general principle that those who have not
been in actual communion with the Church during life
shall not be in communion with her after death.1 This
reasonable rule debars certain unfaithful members from
Christian burial, as will be seen in Bk. Ill, Title XII.
Lastly, it must be remembered that the right to receive
spiritual favors entails the duty to honor and support
those by whom these favors are dispensed. This duty
not only implies proper material support, but assistance
in the administration of church property, as far as the
sacred canons permit laymen to share therein as trustees,
administrators, tutors, etc. Benedict XIV enjoins espe-
cially missionaries and pastors generally to provide for
the spiritual welfare of the sick and poor, and to visit
them in their distress and need without distinction of
person or sex.2 This precept needs no emphasizing,
1 C. i, C «4» <!• *\ c« **p X, III, 0 " Omnium 4ollic%tud\num," Sept.
odbyC 'le
,| , Original fro rn
UNIVERSITY OF WISCONSIN
CANON 683 423
since it is but a practical application of Christ's teaching.8
Above all, the means necessary for salvation must be sup-
plied to all. These are primarily the so-called Sacra-
ments of the dead (Baptism and Confession) and sec-
ondarily the other Sacraments as far as they are intended
for all. For two of them. Holy Orders and Matrimony,
are intended merely for society as such, but not for each
individual member. So much about spiritual benefits,
omitting the sacramentals, which are not necessary for
salvation. Since there is an essential hierarchic differ-
ence between laity and clergy, it is but meet that this dis-
tinction should also appear outwardly. Hence the fol-
lowing canon :
Can. 683
Non licet laicis habitum clericalem deferre, nisi
agatur vel de Seminaricrum alumnis aliisque adspiran-
tibus ad ordines de quibus in can. 972, § 2, vel de laicis,
scrvitio ccclesiae legitime addictis, dum intra eandem
ecclesiam sunt aut extra ipsam in aliquo ministerio
ecclesiastico partem habent.
With the exception of seminarists and others aspiring
to holy orders (even if they do not live in a theological
seminary; can. 972), laymen are not allowed to wear the
clerical garb, unless they are legitimately engaged in the
service of the Church, in which case they may wear the
ecclesiastical garb in church and also outside of it, when
taking part in ecclesiastical functions. The clerical garb
consists of the cassock and the so-called Roman collar.
In Rome and in Italy generally, as elsewhere, the
students of petits seminaires usually wear a cossack.
This practice the Code permits. It also allows sex-
tons or sacristans, singers, beadles (sometimes called
a Matt g, is f.; *8. i«.
jle
Original from
UNIVERSITY OF WISCONSIN
424 RELIGIOUS
" Schweizers "), or ushers to wear their distinctive in-
signia in church as well as outside of it when they take
part in ecclesiastical functions, for instance, processions,
dedications, and perhaps also in schools if the function
has an ecclesiastical character. Outside these places and
ceremonies lay people are not allowed to wear the ecclesi-
astical garb. There is not much danger of transgression
in this country. However, we sometimes hear of bogus
priests and even prelates, and hence the warning is op-
portune even here. The prohibition is based upon the
privilegium canonis and on that of ecclesiastical im-
munity formerly accorded to the clergy, when scoundrels
like the roaming deacons (diaconi selvaggi) often abused
the clerical dress.
I Original from
1L UNIVERSITY OF WISCONSIN
r
TITLE XVIII
ASSOCIATIONS OF THE FAITHFUL IN GENERAL
We live in an age of organizations, though it would be
wrong to imagine that societies were unknown to former
ages. On the contrary, even the Middle Ages had their
guilds and confraternities, some of which have left traces
of their noble deeds. " Nobles, priests, religious, clerks,
sons of the soil who labored at various manual works
lived then so to say in common, and they are found con-
tinually together in all their daily occupations," says Car-
dinal Gasquet,1 and quotes a sentence from Toulmin
Smith to the effect that guilds are older than kings in
England.2 Fraternities are as old as the Church. The
first Christians, according to the Acts of the Apostles,
held everything in common and prayed in common."
The collegium tenuiorum and the corporation of the
fossores or grave diggers are well known. We may
safely say that the Church has always fostered pious
unions and confraternities, as long as they kept within
proper limits and acknowledged ecclesiastical authority.
The lack of spiritual guidance or of acknowledgment
of ecclesiastical authority has caused no little disturb-
ance in the camps of the Christian Socialists, as the
unions or federations of workingmen in Germany have
3 Card. Gasquet, Tht Ere of the
Rtformatton, 1901. p. 309 (Qh. XI).
2 Id., Parish Life M Mediaeval
England, 1906, p. 253; cfr. also
Translations and Reprint* from the
Original Sources of European His-
tory, University of I'n., 190J, Vol.
II, No. 1, p. u ff.
a Acts a, 44 ff-; 4- 32 ff.
425
oogle
Original from
UNIVERSITY OF WISCONSIN
■
426 LAYMEN
proved.4 The democratic-idealistic movement in France,
known by the name of Sillon, also seemed to endanger
the progress of true democracy and Catholicity and was
therefore disowned by Pius X.6 Besides social or chari-
table unions, the Church recommends especially confra-
ternities for young people based on supernatural princi-
ples,0 i. e.t the teachings of the Gospel. Two rules should
always be observed by laymen in founding pious socie-
ties: a specific good work to be undertaken and respect
for ecclesiastical authority. If these two essentials are
properly safeguarded, the Church will favor a society,
whereas if they are not, she will disapprove or merely
tolerate.
How much influence may be permitted to laymen in
ecclesiastical affairs is a difficult and delicate question, the
solution of which depends on the kind of work in hand
as well as on individual prudence and zeal. What may
be becoming, or even necessary, in one country may be
inadvisable in another, where circumstances are different.
Can. 684
L
Fideles laude digni sunt, si sua dent nomina associ-
ationibus ab Ecclesia erectis vel saltern commendatis ;
caveant autem ab associationibus secretis, damnatis,
seditiosis, suspectis aut quae studeant sese a legitima
Ecclesiae vigilantia subducere.
The faithful who enrol in societies organized, or at
least recommended, by the Church are worthy of praise ;
but they should beware of entering secret, condemned,
seditious or suspect societies, or such as strive to with-
draw themselves from the vigilance of (he Church.
4 Ep. Pit X ad Card. Fischer (A. « Letter of Card. Merry del Val
Ap. S., Ill, 18 f.) etc. to Mons. Eougonier, Nov. 19, igia
5 Aug. 35, «9io {A. Ap. 5., II, (A. Ap. S.t IV, 714 f-).
607 fl\).
Go >gle
Original from
UNIVERSITY OF WISCONSIN
CANON 684
427
There are societies for every need in the Catholic
Church, but not all are organized by her, — in fact very
few. Most were established privately and their consti-
tutions had first to be examined and their work tested.
As soon as a society is approved by the Church, the latter
may be truly said to have given it her sanction and au-
thority. The Society of St. Vincent de Paul, the Asso-
ciation for Christian Doctrine, the Peter Claver Sodality,
and many others may be said to have been organized by
the Church. Recommendation in a lesser degree involves
a judgment — though not an infallible one — as to a so-
ciety's soundness. Many such recommendations may be
read in the Acta Apostolicae Sedis, especially under
Pius X, who fully realized the usefulness of Catholic
associations.
On the other hand there are societies which the Church
disapproves. Five different kinds of them are mentioned
in our canon, although we would not assert that the lines
are sharply drawn. By secret societies are meant prin-
cipally the Freemasons. All their societies or lodges
are forbidden, but not all are condemned in the same
degree. For condemnation means prohibition or pro-
scription enforced by penal sanction, and is generally
made by name. Many ecclesiastical documents, espe-
cially the constitutions of Clement XII, "In emtnentt"
April 28, 1738, and of Benedict XIV, " Prozidas,"
March 18, 1731, give the reasons why Freemasons are
condemned. These reasons are: because they espouse
the principle of indifferentism in religion, envelop them-
selves in secrecy confirmed by terrible oaths, show re-
pugnance and disobedience not only to ecclesiastical, but
also to civil law, and, lastly, because they are shunned
and abhorred by good and prudent men. It may be true,
as often stated, that the lower degrees are not aware of
>gle
Original from
UNIVERSITY OF WISCONSIN
428 LAYMEN
the real tendencies of the craft as manifested in the
higher degrees. But this fact does not lessen the dan-
ger, It is safe to say that all secret societies are for^
bidden ; some of them are also condemned for reasons
which the student of Freemasonry will eas'ly perceive.7
Condemned are societies which aim at the ruin of Church
or State, whether their oath be secret or not (S. O.,
Aug. 5, 1846). Some (the Independent Order of Good
Templars, the Odd Fclloivs, the Sons of Temperance,
and the Knights of Pythias) have been nominally forbid-
den,8 though the Holy Office would not precisely state
whether the members incur censure. To enter such a
lodge would be a grievous sin, especially since our Code
declares that those who enrol in a Masonic sect are ex-
communicated.1' Members who would sustain a great
loss if they left one of these societies, on account of in-
surance, may obtain permission to remain in the lodge,
provided they entered it bona fide, abstain from partici-
pation in any ritualistic ceremony, give no scandal, and
suffer no spiritual loss.'0
Seditious, though not secret societies are the radical
Socialists, Communists, Nihilists, and Anarchists, who
aim at overthrowing all authority, and subverting the
family and property rights.11
Questionable are all those societies whose moral and
religious principles give rise to doubts as to their sound-
7 Cfr. Arthur Preuss, A Study in 0 Can. 2335.
American Freemasonry (Hased upon 10 Putier, Comment, in Facult.
American Masonic Standard Works), Aposl., <■!. 4, 1897, p. 235 f.
3rd edition. St. Louis. Mo.. 1914- 11 Leo XIII. "Quod apostolici
8 S. 0., Aug. 9, 1893; Aug. »o, muneris," Dec. 28, 1878. Seditioua
1894; Jan , 1S96. S. 0.| May 10, are also certain societies formed tor
1884 iCotl. P. F., n. 1615I; Aug. 1. political purpoies. though they may
1855 iColl. cit., n. 1 116) S. C. P. bear a literary title.
F., Sept. 34, 186; (Co//, dr., n.
13*0).
jle
/■ - ^ , ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 685
429
ness. Such a one was the Sillon in France ; such are the
societies which seek to withdraw themselves from the
authority of the Church, no matter how well-meaning
they may be. Interconfessional associations are almost
compelled to shirk the restraints imposed by ecclesiastical
authority.
objects of christian associations
Can. 685
Associations distinctac a rcligionibus vel societati-
bus de quibus in can. 487-681, ab Ecclesia constitui
possunt vel ad perfectiorem vitam christianam inter
aocios promovendam, vel ad aliqua pietatis aut caritatis
opera cxercenda, vel denique ad incrementum public!
cultus.
After drawing the line between forbidden and recom-
mended societies, the Code explains for what ends or
purposes Catholic societies may be established. Apart
from religious institutes and societies dealt with in can.
487-681, the Church permits the establishment of socie-
ties for a threefold purpose:
(a) To assist the members to promote a more perfect
Christian life (e. g., Tertiaries, etc.) ;
(b) To encourage works of piety or charity (te. g.,
confraternities) ;
(c) To promote public worship (e. g., Eucharistic so-
cieties, societies for ecclesiastical music and song, altar
societies, societies of acolytes and sextons, etc.).
oogle
Original from
UNIVERSITY OF WISCONSIN
430 LAYMEN
authority for establishing societies
Can. 686
§ i. Nulla in Ecclesia recognoscitur associatio quae
a lcgitima auctoritate ecclesiastica erecta vel saltern
approbata non fuerit.
§ 2. Associationes erigere vel approbare pertinet,
praeter Romanum PontiBcem, ad loci Ordinarium, cx-
ceptis illis quarum instituendarum ius, apostolico ex
privilegio, aliis rescrvatuni est.
§ 3. Licet privilegium concessum probetur, semper
tamcn, nisi aliud in ipso privilegio cautum sit, requiri-
tur ad validitatcm crectionis consensus Ordinarii loci
D
scripto datus; consensus tamcn ab Ordinario praesti-
tus pro crectione domus rcligiosac valet etiam pro
erigenda in eadem domo vel ecclesia ei adnexa associ-
ations, quae non sit constituta ad modum organici cor-
poris et illius rcligionis sit propria.
§ 4. Vicarius Generalis ex solo mandato generali, et
Vicarius Capitularis nequeunt associationes erigere
aut consensum praebere pro earum erectione aut ag-
gregatione.
§ 5. Erectionis litterae ab iis qui ex privilegio apo-
stolico associationem erigunt, gratis concedantur, sola
excepta taxa pro expensis necessariis.
§ 1. The Church gives her recognition to no society
which has not been organized, or at least approved of, by
the legitimate ecclesiastical authority.
§ 2. To erect or approve societies belongs, aside from
the Roman Pontiff, to the Ordinary of the diocese, with
the exception of those whose institution is by Apostolic
concession reserved to others.
§ 3. Even in case a concession has been granted, the
§le
% ,1,., Originalfrom
UNIVERSITY OF WISCONSIN
CANON 687
43i
written consent of the Ordinary is required for the valid
foundation of a society, unless the contrary is explicitly
stated in the concession. The permission of the Ordi-
nary to erect a religious house includes permission to
establish in this house or the adjacent church any so-
ciety that may be customary with the religious institute
in question, even though it may not form part and parcel
of the institute itself.
§ 4. In virtue of their usual powers, neither a vicar
general nor a vicar capitular enjoys the right of estab-
lishing any society or of granting the required consent to
one already established.
§ 5. With the exception of a nominal fee to cover the
necessary expenses, letters of foundation are to be granted
gratis.
ecclesiastical sanction
Can. 687
Ad norrnam can. ioo, tunc tantum fidelium associa-
tiones iuridicam in Ecclesia personam acquirunt, cum
a legitimo Superiore ecclesiastico formale obtinuerunt
erectionis decretum.
In accordance with can. 100, associations of the faith-
ful acquire official recognition as juridical persons only
when they have obtained a formal decree of establish-
ment from the competent ecclesiastical superior. This
decree is issued in the form of a simple rescript. The
time from which the recognition is to be dated, is the date
of execution, if an executor is chosen; or let us rather
say, the date on which the decree reaches those who asked
for it. Before that time members cannot validly be en-
rolled. Note that the question here is of ecclesiastical
acknowledgment only; civil recognition depends entirely
on the secular authorities.
►ogle
Original fro m
UNIVERSITY OF WISCONSIN
■
43a LAYMEN
title to be chosen
Can. 688
Associatio titulum seu nomen ne assumat quod levi-
tatem aut absonam novitatern sapiat, vel speciem
devotionis a Sede Apostolica non probatam exprimat.
No society is permitted to choose for itself any name
that savors of levity or novelty, or is connected with any
devotion discountenanced by the Holy See.
statutes
Can. 689
§ i. Quaelibet associatio sua statuta ha beat, a Sede
Apostolica vel ab Ordinario loci examinata et appro-
bate
§ 3. Statuta quae non sint confirmata a Sede Apo-
stolica, moderationi et correction! Ordinarii loci sem-
per subiecta manent.
§ 1. Every society shall have its own statutes, which
are to be examined and approved by the Apostolic See
or by the Ordinary of the diocese.
§ 2. Statutes which have not been approved by the
Apostolic See always remain subject to modification and
correction by the diocesan Ordinary.
authority of the ordinary
Can. 690
§ 1. Omnes associations, etiam ab Apostolica Sede
erectae, nisi speciale obstet privilegium, iurisdictioni
subsunt et vigilantiae Ordinarii loci, qui ad normas
sacrorum canonum eas inviscndi ius habet et munus.
.'Ie
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 691 433
§ a. Associations tamen, quae vi privilegii apo-
tolici a rcligiosis exemptis in suis ecclesiis institutae
sunt, Ordinariis locorum fas non est visitare quod at-
tinet ad ea quae internam disciplinam seu spiritualem
associationis directionem spectant.
§ 1. AH societies, even those erected by the Apostolic
See, unless they enjoy a special privilege to the contrary,
are subject to the authority of the Ordinary, who has the
right and duty to watch over them according to the pre-
scriptions of the sacred canons.
§ 2. It is not permissible, however, for diocesan Ordi-
naries to meddle in the internal discipline or spiritual
direction of societies which exempt religious institutes
have erected in their churches by virtue of an apostolic
privilege.
temporalities
Cam. 691
§ 1. Associatio legitime erecta, nisi aliud expresse
cautum sit, bona temporalia possidere et administrare
potest sub auctoritate Ordinarii loci, cui rationem ad-
ministrationis saltern quotannis reddere debet, ad nor-
man can. 1525, minime vero parochi, licet in eius terri-
torio erecta sit, nisi aliud Ordinarius ipse statuerit
§ 3. Potest, ad nor mam stat utorum, oblationes reci-
pere, et receptas erogare ad pios ipsius associationis
usus, salva semper offerentium voluntate.
§ 3. Nulli association! eleemosynas colligere licet,
nisi id aut statuta permittant, aut necessitas postulet,
et loci Ordinarii consensus accedat ac servetur forma
ab eodem praescripta.
§ 4. Ad eleemosynas extra territorium colligendas
uniuscuiusque Ordinarii venia, scripto data, requiritur.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
434 LAYMEN
§ 5. Oblationum quoquc ac elccmosynarum fidelis
erogationis rationem associatio reddat Ordinario loci.
§ 1 . A society legitimately established may possess and
administer temporalities under the direction of the local
Ordinary, unless the contrary is expressly stated in the
letters of approbation. It must render an account of
its property at least annually to the Ordinary, conform-
ably to the prescriptions of can. 1525, but it is not in this
regard subject to the parish priest in whose territory it
exists, unless the Ordinary legislates otherwise.
§ 2. Such a society may accept donations according to
the tenor of its statutes, and use them for any good pur-
pose, with due regard, of course, paid to the will of the
donors.
§ 3. No society is allowed to seek alms unless either its
statutes permit or necessity demands, and then only with
the consent of the Ordinary and in the way prescribed by
him.
§4. For soliciting alms elsewhere than within their
own territory, the written permission of the respective
Ordinary is required.
§ 5. The society must render an account to the local
Ordinary of the alms and other offerings received.
rights and privileges of members
Can. 692
Ad fruendum associations iuribus, privilcgiis, in-
dulgentiis, aliisque gratiis spiritualibus, neccsse est et
sufneit ut quis in cam valide receptus sit, secundum
propria associations statuta et ab ea legitime non ex-
pulsus.
To enjoy the rights, privileges, indulgences, and other
spiritual favors accruing to a society, it is required and
jle
, .,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 693 435
sufficient for one to be validly received into the same, ac-
cording to the statutes, and not expelled from it.
qualifications for membership
Can. 693
§ 1. Acatholici et damnatae sectae adscripti aut cen-
sura notorie irretiti ct in genere publici peccatores
validc recipi nequeunt
§ 2. Eadem persona potest adscribi pluribus associa-
tionibus, salvo praescripto can. 705.
§ 3. Absentes ne adscribantur associationibus ad
modum organici corporis constitutis ; praesentes autem,
nonnisi scientes ac volentes adscribi possunt.
§ 4. Salvo praescripto can. 704, religiosi possunt piis
associationibus nomen dare, exceptis iis quarum leges,
Superiorum iudicio, cum observantia regulae et con-
stitutionum conciliari nequeant.
§ 1. Non-Catholics and members of a condemned sect,
those laboring under notorious censure, t. e., one they
cannot hide by any artifice, and, in general, public sinners,
cannot be validly received.
§ 2. Without prejudice to can. 705, one and the same
person may be enrolled in several societies. The excep-
tion regards Tertiaries of religious orders, who may not
belong to several orders without a special indult ; thus,
for instance, an oblate of St. Benedict may not at the
same time be a Franciscan tertiary.
§ 3. Absent persons may not be enrolled as full-fledged
members of a society ; those who are present may be re-
ceived only with their knowledge and consent.
§ 4. Without prejudice to can. 704, religious may join
pious associations, except those whose laws, in the judg-
ment of the superior, cannot be reconciled with the rule
'rtrwilo ' Original from
lOOglL UNIVERSITY OF WISCONSIN
p
436 LAYMEN
and constitutions. Can. 704 forbids professed religious
to become tertiaries of any order.
form of reception
Can. 694
-
§ i. Reccptio flat ad normam iuris ac statutorum
uniuscuiusque associationis.
§ 2. Ut autem de receptionc constet, inscriptio in albo
associationis fieri omnino debet ; irno haec inscriptio, si
associatio in personam moralem erecta fuerit, est ad
validitatem necessaria.
§ 1. Reception into any society must be effected ac-
cording to the laws and statutes of the same.
§ 2. To insure certainty in the matter of reception, the
name of each member must be inscribed on the roster of
the society; if the society enjoys the status of a persona
moralis, registration is necessary for validity.
NO SPECIAL RECOMPENSE
Can. 695
Occasione receptionis in associationem nihil directe
vel indirecte exigatur, praeter id quod in statutis legi-
time approbatis designatum sit, aut ab Ordinario loci,
ratione specialium circumstantiarum, expresse permis-
surn in associationis favorem.
On the occasion of reception into a society no fee may
be exacted beyond that determined in the lawfully ap-
proved statutes, or what the Ordinary of the diocese, by
reason of special circumstances, has expressly permitted
in favor of the society.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 696-697
437
dismissal
Can. 696
§ 1. Nemo, legitime adscriptus, ab associatione di-
mittatur, nisi iusta de causa ad normam statutorum.
§ 2. Qui in casum inciderint, de quo in can. 693, § 1,
expungantur, praemissa monitione, servatis propriis
statutis et salvo iure recursus ad Ordinarium.
§ 3. Etiamsi in statutis nihil expresse caveatur, etiam
loci Ordinarius quod ad omnes associations, et Su-
perior religiosus quod ad associationes ex apostolico
indulto a religiosis erectas attinet, possunt socios di-
mittere.
§ 1. No one who has been lawfully enrolled in a so-
ciety, may be dismissed from the same, except for a just
cause, according to the statutes.
§2. Whoever falls under can. 693, § i, may be ex-
pelled after due warning, with due regard to the respec-
tive statutes and without prejudice to the right of ap-
peal to the Ordinary.
§ 3. Even though nothing be expressly stated in the
statutes, the Ordinary of the diocese may dismiss any
member of any society. The religious superior enjoys
the same right in respect to societies erected by his sub-
jects in virtue of an Apostolic indult.
meetings and officers
Can. 697
§ 1. Associationes legitime erectae ius habent, ad
normam statutorum et sacrorum canonum, celebrandi
comitia, edendi peculiares normas quae ipsum sodali-
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
438 LAYMEN
a
tiuin respiciant, cligendi administratores bonorum,
officiates ct ministros, firrno praescripto can. 7x5.
§ 2. In iis quae convocationcm ad comitia ct elec-
tiones respiciunt, serventur ius commune, quod prostat
in can. 161-182 ct statuta iuri communi non contraria.
§ 1. Societies legitimately established enjoy the right,
according to the rules laid down in their statutes and in
the sacred canons, of convoking meetings, promulgating
special by-laws pertaining to their society, electing ad-
ministrators for their property, and other officials neces-
sary for the well-being of the society. Can. 715 must
not be overlooked in this connection.
§ 2. In all meetings and elections the common law, as
outlined in can. 161—182, must be observed, as well as the
statutes not opposed to the common law.
moderator and chaplain
Can. 698
§ 1. Nisi privilegium apostolicum aliud expresse
caveat, nominatio moderatoris et cappellani pertinet
ad loci Ordinarium in associationibus ab ipso vel ab
Apostolica Sede erectis aut approbatis, et in associa-
tionibus a religiosis vi apostolici privilegii erectis ex-
tra proprias ecclesias; in associationibus vero erectis
a religiosis in propriis ecclesiis requiritur tantum Or-
dinarii loci consensus, si a Superiore moderator et
cappcllanus e clero saeculari eligantur.
§ 2. Moderator et cappellanus possunt, durante
muncre, benedicere associationis habitum aeu insignia,
scapularia, etc., eaque adscribendis imponere ; quod
vero ad conciones attinet, serventur praescripta can.
1337-1343.
§ 3. Moderatorem ct cappcllanum revocare ex iusta
■
9
ogle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 699 439
causa possunt qui illos nominaverunt eorumque suc-
cessores vel Superiores.
§ 4. Idem potest esse moderator et cappellanus.
§ I. Unless an apostolic privilege provides otherwise,
the appointment of a moderator and chaplain belongs to
the Ordinary in societies established or approved either
by himself or by the Apostolic See and in societies erected
by religious outside their own churches by virtue of an
Apostolic privilege ; but in societies established by reli-
gious in their own churches, the consent of the Ordinary
only is required in case the moderator and the chaplain
are appointed by the religious Superior from among the
secular clergy.
§ 2. During their term of office, the moderator and the
chaplain are empowered to bless the habit or insignia,
scapulars, etc., of the society and to invest candidates
with them; regarding sermons, canons 1337-1342 are to
be observed.
§ 3. Those who possess the power of nominating mod-
erators and chaplains, as also their successors or Supe-
riors, can revoke the nomination for a just cause.
§4. One and the same person may act as moderator
and chaplain.
suppression of societies
Can. 699
§ 1. Ob graves causas et salvo iure recursus ad
Apostolicam Sedem, potest loci Ordinarius supprimere
non solum associationem a se vel a decessoribus suis
erectam, sed etiam associationem ex apostolico indulto
a religiosis erectam de consensu Ordinarii loci.
§ a. Associationes vero ab ipsa Apostolica Sede
erectae nonnisi ab eadem supprimi possunt.
G I Original from
OU^IL UNIVERSITY 0FWI5C0NSIN
440 LAYMEN
§ i. For grave reasons, and with due regard to the
right of recourse to the Holy See, the local Ordinary may
suppress not only a society established by himself or his
predecessors, but also a society erected by religious in
virtue of an apostolic indult requiring the consent of the
Ordinary.
§ 2. Societies erected by the Holy See itself can be
suppressed only by the same.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
TITLE XIX
associations of the faithful in particular
different kinds of associations
Can. 700
Triplex distinguitur in Ecclesia associationum spe-
cies : tertii Ordines saeculares, conf rater nitates, piae
uniones.
There are three kinds of associations in the Church:
secular tertiaries, confraternities, pious unions.
precedence
Can. 701
§ 1. Inter pias laicorum associations, ordo prae-
cedentiae est qui sequitur, firmo praescripto can. 106,
nn. 5, 6 :
i.° Tertii Ordines;
a.° Archiconf raternitates ;
3-° Conf raternitates ;
4.0 Piae uniones primariae;
5.0 Aliae piae uniones.
§ 2. Confraternitas sanctissimi Sacramenti, si agatur
de processione in qua defertur sanctissimum Sacra-
mentutn, praecedit ipsis archiconfraternitatibus.
§ 3. Omnes autem tunc solummodo ius praeceden-
tiae habent, cum collegialiter incedunt sub propria
cruce vel vexillo et cum habitu seu insignibus associa-
tions.
441
oogle
Original from
UNIVERSITY OF WI5C0NSI
■
442 LAYMEN
§ i. Without prejudice to the regulations laid down
in can. 106, nn. 5 and 6, the order of precedence among
pious lay associations is the following:
First — Tertiary Orders;
Second — Archconfratcrnities ;
Third — Confraternities ;
Fourth — Primary organizations for pious purposes ;
Fifth — Other organizations for pious purposes.
§ 2. In processions in which the RIessed Sacrament is
carried, the Confraternity of the RIessed Sacrament en-
joys the right of preceding even the Archcon fraternities.
§ 3. The right of precedence helongs to these organiza-
tions only when they march in a hody under their own
cross or banner and with the garb or insignia of their
society.
* x/\(tL» Originalfrom
I Originalfrom 1
008IL UNIVERSITY OFWISCONSIN \
CHAPTER I
SECULAR TERT1ARIES
Can. 702
§ 1. Tertiarii saeculares sunt qui in saeculo, sub
moderation? alicuius Ordinis, secundum eiusdem
spiritum, ad christianam perfectionem contendere
nituntur, modo saeculari vitae consentaneo, secundum
regulas ab Apostolica Sede pro ipsis approbatas.
§ 2. Si tertius saecularis Ordo in plures associationes
dividatur, harum quaclibet legitime constituta dicitur
sodalitas tertiariorum.
§ 1. Secular Tertiaries are those who live in the world
under the direction of an Order, and endeavor to attain
Christian perfection according to its spirit, in a manner
compatible with secular life. They have a moderator of
the same order and rules approved by the Apostolic See.
§ 2. If the secular Tertiaries of any Order are divided
into several bodies, each of them is called a sodality of
Tertiaries.
The first category of Catholic associations is that of
the Tertiaries, a name derived from the organization
formed by St. Francis of Assisi, most probably in 1221,
near Portiuncula,1 as an order of penitents, However,
though the widespread influence of this particular organ-
ization is due to the founder of the Franciscans, similar
institutes had been in existence before the Xlth cen-
tury. The Clunians admitted laymen to a share in their
iCfr. Cath. Encyct., XIV, 641
443
>ogle
Oriomalfrorn
UNIVERSITY OF WISCONSIN
444 LAYMEN
spiritual benefits. In the diocese of Treves, in the well-
known abbey of Prism (erected in the eighth century in
honor of our Holy Redeemer), Abbot Stephen (988-
1000) "instituted a confraternity in honor of St. Bene-
dict in which many noble men were enrolled." 2 This,
perhaps, is one of the first instances where the Oblates
of St. Benedict are referred to as a fraternity or sodality.
The eleventh century produced the Oblates of St. Bene-
diet, who have been reorganized by Leo XIIL* The
Order of St. Dominic and the Carmelites (1273) fol-
lowed this example and admitted seculars among their
Tertiarics. But, as we have said, the best known organ-
ization of this kind is that of the Tertiaries of St. Francis.
D
Note that, although they are called an Order of Terti-
aries, they cannot be properly styled religious. On the
other hand these societies of Tertiaries are more than
confraternities or sodalities, and the rules of confraterni-
ties do not simply apply to them/ The division into so-
dalities of which can. 702, § 2, speaks, is made for the
sake of facilitating administration, but each sodality must
be affiliated with the Order of Secular Tertiaries or it can
have no legal standing in the Church.
powers of superiors and of the ordinary
Can. 703
§ 1. Firmo privilcgio nonnullis Ordinibus concesso,
nulla religio potest tertium Ordinem sibi adiungere.
§ 2. Dato etiam apostolico privilcgio, Supcriores rc-
ligiosi possunt quidem personas particularcs tertio
Ordini adscribere, sed nequeunt sodalitatem tertiario-
S Schorn, EilJia Sacra. 1889, II, the Oblates of St Benedict, Con-
p. 351. ceptinn, Mo., 191 7.
■ Ctr. Statutes and Prayers for 4 Cfr. Beringer, Die Abl&ste,
1906 (cd. 13), p. 300 f.
jle
£ ~ ^ ^ ,l„ Original fro m
UNIVERSITY OF WISCONSIN
CANON 704
445
rum valide erigere sine consensu Ordinarii loci, ad
norman can. 686, § 3.
§ 3. Nee sodalitatibus a se erectis possunt concedere
usum particularium vestium, in publicis sacris func-
tionibus deferendarum, sine speciali eiusdem Ordi-
narii licentia.
§ 1. With the exception of such Orders as have been
accorded the privilege, no religious institute is allowed to
establish a Third Order. Hence only orders of regulars,
but no congregations, even though exempt, may establish
a third order of their own, and even these orders need a
special privilege to that effect.
§ 2. Although religious superiors may enroll particu-
lar persons as Tertiaries. they may not validly establish a
sodality of Tertiaries, although their order has an apos-
tolic privilege to that effect, without the approval of the
diocesan ordinary, according to can. 686, § 3.
§ 3. Neither are they permitted to allow the sodalities
which they — the religious superiors — have erected, to
wear a special garb at public sacred functions without the
special permission of the Ordinary. This special garb
must not be confounded with the insignia of the Terti-
aries, which consist of a scapular of smaller size and a
girdle of hemp or wool, which they may wear at proces-
sions without special permission.5
religious cannot be tertiaries
Can. 704
§ i. Qui vota nuncupavit vel in perpetuum vel ad
tempus in aliqua religione, nequit simul ad ullum ter-
I " Vetu uniformi iudtiti. vulgo
sacco"; S. C E. et RR., April 6.
1900; BerinKcr, I, c, p. 800, p.
805 t. ; a sacco means a tack or
dre*» covering the whole hody, even
the face, such as some confraterni-
tics wear in Rome at funeral*
oogle
Original from
UNIVERSITY OF WISCONSI
446 LAYMEN
tium Ordinem pertinere, etsi eidem antea fuerit ad-
scriptus.
§ 2. Si solutus a votis ad saeculum redierit, antiqua
adscriptio reviviscit.
§ 1. Wliosoever has pronounced vows, whether perpet-
ual or temporal, in any religious institute cannot simul-
taneously belong to any Third Order, even though he was
once enrolled in such a one.
§ 2. If one is freed from his vows and returns to the
world, his former status as Tertiary revives.
Note the term " has pronounced." It means that a
novice enjoys the privileges of a Tertiary during his
novitiate (S. C. Indulg., Jan. 31, 1893). This canon
binds all Tertiaries and the Oblates of St. Benedict
(S. C Indulg, Jan. is, 1895).
no one may be a tertiary in two orders
Can. 705
Nulla tertiariorum sodalitas, sine apostolico indulto,
adscribere potest sodales alius tertii Ordinis in eodem
remanent es; singulis tamen sodalibus licet iusta de
causa transire sive ab alio ad alium tertium Ordinem,
sive ab alia ad aliam sodalitatem eiusdem tertii Ordinis.
■
■.■.-
No sodality of Tertiaries is allowed, without an Apos-
tolic indult, to enroll members of another Third Order;
for a just cause, however, it is permissible for Tertiaries
to transfer themselves either to a different Third Order,
or to a different sodality of the same Third Order.
This rule dates back to Jan. 31, 1893, but has retro-
active force, as the S. C. Indulg. declared, June 21, 1893.
Therefore, as a rule, no one may belong to two different
orders as a Tertiary. Nor is there any necessity for this,
►ogle
/*.,., -J,-, Original fro m
UNIVERSITY OF WISCONSIN
CANON 706
447
as the purposes of all third Orders are practically about
the same.
processions
Can. 706
Publicis processionibus, funeribus aliisque ecclesia-
sticis functionibus tertiarii possum, sed non tenentur,
collegialiter interessc ; at si intersint, cum suis insigni-
bus sub cruce propria incedant necesse est.
At public processions, funerals, and other ecclesiastical
functions Tertiaries may, but are not obliged to, attend
in a body. If present in a body, they must march under
their own cross and wear their proper insignia.
If the first Order, for instance, of the Franciscans
march in procession, their Tertiaries may march under
the same cross (S. Rit. C, June 30, 1905).
oogle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER II
CONFRATERNITIES AND PIOUS ORGANIZATIONS
Can. 707
§ I. Associations fidelium quae ad excrcitium
alicuius operis pietatis aut caritatis erectae sunt,
nomine veniunt piarum unionum; quae, si ad modum
organici corporis sint constitutae, sodalitia audiunt.
§ 2. Sodalitia vero in incrementum quoque publici
cultus erecta, speciali nomine confraternitates appel-
lantur.
§ 1. Associations of the faithful founded to further
some work of piety or charity, are known as pious or-
ganizations; if they enjoy a quasi-corporate status, they
are called brotherhoods {sodalitia).
§ 2. Brotherhoods that have for their object the en-
hancement of public worship are called confraternities.
Such confraternities may be traced to the fourth cen-
tury. But the climax of the guild and fraternity move-
ment was witnessed in the Xlllth century, when the
Gonfalieri, or banner-bearers, were founded and recom-
mended by the Church.1 The most renowned confra-
ternities to-day are those of the Holy Rosary and the
Scapular.
ESTABLISHMENT
Can. 708
-
Confraternitates nrnnisi per formale erectionis de-
cretum constitui possunt; pro piis autem unionibus
iCfr. Beriuger, L c, p. |i*
•a
448
jle
/".,., -,!,■» Original from
UNIVERSITY OF WISCONSIN
CANON 709
449
sufiicit Ordinarii approbation qua obtenta, ipsae, licet
morales personae non sint, capaces tamen sunt
obtinendi gratias spirituals ac praesertim indulgentias.
Confraternities may be established only by a formal
decree of erection ; but for pious organizations, the ap-
probation of the Ordinary suffices, though it does not
constitute them moral persons, but enables them to gain
spiritual favors, especially indulgences. The S. C. of
Indulgences (Jan. 8, 1861) issued two formularies, one
for confraternities erected by religious superiors, the
other for archconfraternities established by an apostolic
indult.8 These formularies are based on the Constitu-
tion of Clement VIII, " Quaecumque," Dec. 7, 1604.
sacred functions
Can. 709
§ x. Confratres nequcunt sacris functionibus operam
praestare, nisi confraternitatis habitum seu insignia
deferant.
§ 2. Mulieres confraternitatibus adscribi tantum
possunt ad lucrandas indulgentias et gratias spirituales
confratribus concessas.
§ 1. Male members are not allowed to take part offi-
cially in any sacred function, unless vested in the garb
or insignia of their confraternity.
§ 2. Women can be enrolled in confraternities only to
gain indulgences and other spiritual favors granted to
the members.
The S. C of Indnlg. wishes that the male members
should wear the special garb of the fraternity, but this is
not a condition strictly required for gaining the indul-
gences.8
2 Ibid., p. Sj8ff.
■ Be Tinge r. L c, p. 57J.
oogle
Original from
UNIVERSITY OF WISCONSIN
450 LAYMEN
title of associations
Can. 710
Titulus seu nomen confraternltatis vel piae unionis
dcsumatur vcl a Dei attributis, vcl a christianae rcli-
gionis mysteriis, vel a festis Domini et Beatae Virginis
Mariae, vel a Sanctis, vel a pio opere ipsius sodalitii.
The title or name of a confraternity or pious organiza-
tion is lo be taken from the attributes of God, or the
mysteries of the Christian religion, or the feasts of our
Lord and His Blessed Mother, or from the Saints, or
from the specific work of piety pursued by the brother-
hood.
■
several associations
Can. 711
§ 1. Plures confratemitates vel piae uniones eiusdem
tituli ac instituti, nisi id eis specialiter concessum sit
aut iure cautum, ne erigantur neve approbentur in
eodem loco; si vero agatur de magnis civitatibus, id
licet, dummodo inter ipsas intercedat conveniens,
iudicio Ordinarii loci, distantia.
§ 2. Curent locorum Ordinarii ut in qualibet paroecia
instituantur confratemitates sanctissimi Sacramenti,
ac doctrinae christianae ; quae, legitime erectae, ipso
iure aggregatae sunt eisdem Archiconfraternitatibus
in Urbe a Cardinale Urbis Vicario erectis.
Q
|M
§ I. Unless the contrary be specially conceded or pro-
vided for by law, several confraternities or pious organ-
izations bearing the same name, or founded under the
same auspices, may not be erected or approved in the
same place. In large cities, however, this may be done,
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
CANON 712
45*
provided a sufficient distance intervenes between the re-
spective confraternities according to the good judgment
of the Ordinary.
§ 2. It is the duty of the diocesan Ordinaries to see to
it that the confraternities of the Blessed Sacrament and
of Christian Doctrine be established in every parish.
Once legitimately erected, these confraternities are ipso
iure aggregated to the Archconfraternities of the same
name established by the Cardinal Vicar in the city of
Rome.
Pius V4 as well as Benedict XIV,5 and again Pius X,
insisted upon religious instruction to be imparted by
laymen well versed in Christian doctrine. The Confra-
ternity of the Blessed Sacrament was founded in Rome
in 1538, and exceedingly favored by the Pontiffs." Both
are warmly recommended to the Ordinaries. Among
students, the Sodality of the Blessed Virgin has justly
been favored and produced splendid results.'
establishment
Can. 712
§ r. Confraternitates vel piae uniones ne erigantur,
nisi in ecclesia aut oratorio publico vel saltern semi-
publico.
§ 2. Ne instituantur, sine Capituli consensu, in ec-
clesia cathedrali aut collegiali.
§ 3. In ecclesiis vel oratoriis religiosarum Ordinarius
loci permittere potest erectionem associations muli-
erum tantum, aut piae unionis quae nonnisi prccationi-
bus incumbat ct gratiarum dumtaxat spiritualium
communicatione gaudeat.
4 " Ex dtbito,
6 " Etti minim*,
8 Beringcr, /. c, p. SM-
Oct. 6. 1571, 5 2.
" Feb. 7, »74»,
TCfr. Elder Mullan, S. J- Tht
Sodality of Our Lady Studied in tht
Documents, New York, ; 9 1 j (a very
thorough work).
*Ie
Original from
UNIVERSITY OF WI5C0NSI
tories.
452 LAYMEN
§ 1. Confraternities or pious organizations may be
erected only in public or semi-public churches or ora-
§ 2. They cannot be established in cathedral or collegi-
ate churches without the consent of the chapter.
§ 3. In churches or oratories of religious women, the
diocesan Ordinary is allowed to erect associations for
women only, or pious organizations, the scope of which
is to gain spiritual favors by means of the apostolate of
prayer.
Leo XIII, July 7, 1883, granted permission to erect
confraternities of the Sacred Heart of Jesus for the con-
version of sinners in such oratories, and this privilege is
now extended to all societies engaged in the work defined
above, not only to the alumnae of female religious insti-
tutes, but also to other lay persons of both sexes.8
religious superiors
Can. 713
I
§ 1. Religiosi cum confraternitatibus piisve unioni-
bus a se erectis possunt et debent communicare omnes
et solas gratias spirituales, quae in facultatibus a Sede
Apostolica receptis specifke et nominatim communi-
cabiles declarentur, eaeque in actu erectionis mani-
festandae sunt singulis, servato praescripto can. 919.
§2. Confratemitatibus, ab iisdem erectis, non licet
vestem propriam seu insignia, quae in publicis proces-
sionibus aliisque sacris functionibus deferenda sunt,
assumere sine special! Ordinarii loci licentia.
8 Berineer, /. c. p. 593; Mullan. Ian. I c. n. 193-: even sodalities or
I. c. n. 1925; sodalities of the Bl. pious organizations of both sexes
Virgin for women only may be the Ordinary could permit accord-
erected in the chapel* of Sisters ing to S. C* EE. et RR.. Jan. 18.
If the Ordinary permits them, Mul- 1907, Mullan, /. c, n. 1933.
>Ie
I t Original from
UNIVERSITY OF WISCONSIN
CANON 714
453
§ 1. Religious who have erected Confraternities or or-
ganizations for pious purposes, can and should impart to
them all and only those spiritual favors that have been
explicitly specified as communicable in the faculties re-
ceived from the Apostolic See. Without prejudice to
can. 919, said favors shall be communicated to all sodali-
ties in the act of erection.
§ 2. Without the special permission of the diocesan
Ordinary it is not permissible for confraternities to as-
sume a garb or insignia to be worn in public processions
or at other sacred functions. The indulgences are not
given by the fact of erection, but communicated by the
Apostolic See. But as soon as the superiors have ob-
tained the necessary faculties, they must communicate
the spiritual favors in detail to their respective confra-
ternities as soon as these are erected. In doing this they
must follow the rules imposed by the Apostolic See,
otherwise the favors are null and void.8 As to the dress,
it is hardly necessary to add that the sacct or sacks seen
in Rome are not worn in our country.
change of dress
Cax. 714
Confraternitas proprium habitum vel insignia, sine
licentia Ordinarii loci, ne dimittat neve immutet.
No Confraternity is allowed to abolish or modify its
garb or insignia without the permission of the diocesan
Ordinary.
power of the ordinary
Cam. 715
§ 1. Comitiis confratemitatum, etsi in rcgularium
8 Beringer, I. c, p. 53$.
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
454 LAYMEN
St
a
ecclesiis et oratoriis celebrandis, per se vel per dele-
gatum praeesse sine iure tamen suffragii, dignos et
idoneos officiales et ministros electos confirmare, m-
dignos vel non idoneos respuere aut removere, statuta
aliasve norma-, nisi a Sede Apostolica approbatae
fuerint, corrigere et approbare, pertinet ad loci Ordi-
narium.
§ 2. Dc comitiorum extraordinariorum eelebratione
confraternitas Ordinarium loci eiusve delegatum tcm-
pestivc pracmoncat; secus Ordinario ius est comitia
imped i en di vcl corum decreta penitus infirmandi.
§ I. It pertains to the diocesan Ordinary to preside,
either personally or by proxy, at the meetings of confra-
ternities, even those held in the churches and oratories
of regulars, to confirm the election of worthy and capa-
ble officials, to reject or remove unworthy ones, and to
amend and approve statutes and norms that have not the
formal sanction of the Holy See. However, the Ordi-
nary has not the right of suffrage at these meetings.
§ 2. Confraternities shall in due time notify the Ordi-
nary or his delegate of any extraordinary meeting; if
they fail to do so, the Ordinary may impede such meet-
ings or annul their decrees.
PARISH RIGHTS
. ■
Can. 716
*
§ i. Confraternitates et piae uniones, in propriis ec-
clesiis erectae, functiones non paroeciales, servatis
servandis, independenter a parocho exercere possunt,
dummodo ministerio paroeciali in paroeciali ecclesia
non noceant.
§ 2. Idem servetur etiarn in casu quo paroecia erecta
sit in ipsa confraternitatis ecclesia.
>Ie
% .,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 716-717
45b
§3. In dubio utrum functionea confraternitatis vel
piae unionis noceant, necne, ministerio paroeciali, ad
Ordinarium loci spectat iua decidendi, itemque statu-
endi practices norrnas scrvandas.
§ i. Confraternities and pious organizations having
theft own churches, may exercise non-parochial func-
tions,10 scrvatis servandis, independently of the parish
priest, provided the parochial ministry does not suffer any
injury.
§ 2. The same holds good in cases where the parish as
such is erected in the church of a confraternity.
§ 3. In case of doubt whether the functions of a con-
fraternity or pious organization injure the parochial min-
istry, the diocesan Ordinary is to decide and lay down
practical rules for guidance.
Can. 717
§ 1. Si in ecclesiis non suis erectae sint, proprias
functiones ecclesiasticas in sacello tantum vel altari, in
quo sunt erectae, peragere possunt ad norraan can. 7x6
ct peculiarium statutorum.
§ 2. Patrimonium confraternitatis ct piae unionis,
quae crecta sit in ecclesia non sua, aut cuius ecclesia
sit simul ecclesia paroecialis, debet esse separatum a
bonis fabricae vel communitatis.
§ 1. If established in churches not their own, confra-
ternities may perform their proper ecclesiastical func-
tions only in a chapel or at an altar specially designated
10 Parochial (unctions are only
those strictly defined in ran. 46J] in
these the director and members are
not allowed to participate or med-
dle, cf. Mullan, n. 260, n. 967; but
besides these associations are de-
pendent on the parish priest if the
confraternity is erected in the par-
ish church, Mullan, t. c, n. 948, M
can. -i- insinuates.
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
456 LAYMEN
0
Q
for their services according to the prescriptions of can.
716 and the statutes.
§ 2. The property of any confraternity or pious organ-
ization established in a church not its own, or in a church
which serves at the same time as parochial church, must
be kept separate from the rest.
■
processions
Can. 718
Confraternitates processionibus consuetis et aliis,
quas Ordinarius loci indixerit, tenentur collegialiter
cum propriis insignibus et sub proprio vexillo interesse,
nisi Ordinarius aliud praescripserit.
Unless the local Ordinary determines otherwise, con-
fraternities are obliged to take part in a body in the
usual processions, and others ordered by the Ordinary.
They march under their own cross and wear their proper
insignia."
headquarters
Can. 719
§ 1. De Ordinarii loci consensu conf rater nitas vel pia
unio de alia ad aliam sedern transferri potest, nisi iure
aut statutis a Sede Apostolica probatis translatio pro-
hibeatur.
§ 2. Quoties agatur de transferenda confraternitate
vel pia unione alicui religioni reservata, Superioris
consensus est requirendus.
§1. With the consent of the diocesan Ordinary, any
confraternity or pious organization may transfer its quar-
11 " In solemn processions, in lain at its head, apart from the
which the pastor usually takes part, pastor." Mullan, /. c, n. a6?.
the confraternity can have its chap-
oogle
, ^1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 719
457
ters from one place to another, unless such transfer is
prohibited cither by law or by statutes that have been
approved by the Holy See.
§2. Whenever there is question of transferring a con-
fraternity or pious organization that belongs to a defi-
nite religious institute, the consent of the respective su-
perior is required.
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
■
CHAPTER III
archconfraternities and primary organizations
Can. 720
Sodalitia quae iure pollent alias ciusdem speciei as-
sociations sibi aggregandi, archxsodalitia, vel archi-
confraternitates, vel piae uniones, congregationes, so-
cietates primariae appellantur.
Brotherhoods that are empowered by law to affiliate to
themselves other associations of the same nature, are
termed archconfraternities or archbrotherhoods, or pious
organizations, congregations, societies of primary rank.
aggregation
Can. 721
§ x. Nulla associatio potest sine apostolico indulto
alias sibi valide aggregare.
§ a. Archiconfratemitas vel primaria unio eas tan-
tum potest confraternitates vel pias uniones sibi ag-
gregare, quae sint eiusdem tituli ac finis, nisi indultum
apostolicum aliud ferat.
a
§ I. No association can validly affiliate to itself other
associations without an apostolic indult.
§ 2. Unless an apostolic indult grants larger powers,
archconfraternities or organizations of primary rank are
allowed to affiliate with themselves only those confraterni-
ties or pious organizations whose title and purpose is
the same as their own.
458
.'le
( * ^ .. -i\,*> Original from
UNIVERSITY OF WISCONSIN
CANON 722-723
459
communication of spiritual favors
Can. 722
§ 1. Per aggregationem communicant ur omnes in-
dulgentiae, privilegia ct aliae gratiae spirituales com-
municabilca quae association! aggreganti directe et
nominatim a Sede Apostolica concessae fuerint vel in
posterum concedantur, nisi aliud in indulto apostolico
caveator.
§ 2. Ex hac communicatione nullum ius associatio
aggregans acquirit supra aggregatam.
§ 1. By affiliation, confraternities and pious organiza-
tions share equally in all the indulgences, privileges, and
other communicable spiritual favors that have been or
will be conceded by the Apostolic See to the archcon fra-
ternity or pious organization, provided the contrary is
not stated in an apostolic indult.
§ 2. The affiliating society does not acquire any right
over the affiliated by virtue of this communication of
privileges.
Communication of privileges between confraternities is
entirely excluded. Only directly granted favors may be
communicated to affiliated organizations.
conditions for affiliation
Can. 723
Ad aggregations validitatem requiritur ut:
i.° Associatio iam fuerit canonice erecta nee alii
archiconfratemitati vel primariae unioni aggregata;
a.0 Fiat de consensu Ordinarii loci scriptis dato una
cum eius litteris testimonialibus ;
3.0 Indulgentiae, privilegia et aliae gratiae spiri-
tuales quae per aggregationem communicanturv
Googl
Original from
UNIVERSITY OF WISCONSIN
4<5o LAYMEN
enumerentur in elcncho, ab Ordinario loci in quo archi-
confraternitas sita est, recognito ct societati aggregatae
tradendo ;
4-° Aggregatio fiat formula in statutis praescripta et
in per pet u um ;
5. Litter ae aggregations expediantur gratis omnino
et nulla prorsus mercede etiam sponte oblata, exceptis
necessariis expensis.
Valid affiliation requires: (1) that the association be
canonically erected and not affiliated to any other arch-
confraternity or primary pious organization; (2) that it
is done with the written approval of the diocesan Ordi-
nary and with testimonial letters from him; (3) that the
indulgences, privileges and other spiritual favors com-
municated be enumerated in writing, the list to be in-
spected by the Ordinary of the diocese in which the
archconfraternity exists, and forwarded to the affiliated
society;1 (4) that the affiliation be made according to
the form prescribed in the statutes and forever ; * ( 5 )
that, excepting unavoidable expenses, the letters of affili-
ation be expedited gratis and without recompense, even
if such be freely offered.
Q
transfer of archconfraternities
Can. 724
Archiconfraternitas vel primaria unio de alia ad
aliam sedem nonnisi ab Apostolica Sede transferri
potest.
Archconfraternities or primary organizations can be
|M
1 The superior of ihe primary bo- - This is generally called diploma
ciety ia not allowed to withold lome and must be placed in the church
indulgences and privileges, but or sacristy,
must communicate all he has. Mul-
Ian, i. c, n. lit.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 725
461
a
N
transferred from one place to another only by the Apos-
tolic See.
Can. 725
Titulus archisodalitii vel archiconfraternitatis vel
unionis primariae, etiam honoris tantum causa, potest
association! ab una Sede Apostolica concedi.
The titles " Archconfraternity," " Archbrotherhood,"
" Primary Organization," may, even as honorary titles,
be granted only by the Apostolic See.
-
-
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
GoogI
Original from
UNIVERSITY OF WISCONSIN
APPENDIX
Questions to be Answered in the Quinquennial Report of Reli-
gious Superiors (can. 510) *
1. Has the congregation obtained the decree of approbation or
encouragement, and when was it granted by the Holy See?
2. What is the end or particular scope of the institute?
3. Has the name which the institute took in the beginning, or
the scope or habit of the Sisters, undergone any change after-
wards, and by what authority?
4. How many members have received the habit since the be-
ginning, or at least in the last twenty years?
HI
5. How many members have left the institute since the beRin-
ning, or at least in the last twenty years, and when, whether dur-
ing the novitiate, after the temporary profession, or after having
taken perpetual vows? Have there been any fugitives, and how
many?
6. When was the last report sent to the Holy See ?
I. About Persons
(a) About Postulants
a
7. How many new members have been received since the last
report ?
8. Did all of them bring the proper testimonials?
9. Have any special efforts been purposely made to draw mem-
bers, and especially have the Superiors availed themselves of the
newspapers for this purpose?
10. How often and for what impediments or obstacles was a
dispensation required, and by what ecclesiastical Superior was it
granted ?
XX. In which house and for how long did postulants or candi-
dates dwell?
1 Translation aubatantiaJly from Bastien-Lanalota, op. cil., Appendix.
463
^
f - J , Original fro ni
UNIVERSITY OF WISCONSIN
464 APPENDIX
a
(b) About Novices
12. How many houses are there with a novitiate, and was each
one founded with the sanction of the Holy See?
13. How many novices have received the habit of the institute
since the last report?
14. How many novices are there at present ?
15. Are the novices kept apart from the professed Sisters, ac-
cording to law?
16. lias each of them a complete copy of the constitutions?
17. Have all of them before profession spent a whole and con-
tinuous year in the novitiate house under the care of the mistress
of novices?
18. Has the time of the novitiate, as established by the consti-
tutions, ever been extended or shortened, and by what authority?
ic> Have the novices applied themselves during the first year
of the novitiate to works of piety, or have they been put to other
work, and to what kind of work?
20. Have the novices been sent to other houses in the second
year of the novitiate, where two years are prescribed?
21. Has the Bishop or his delegate made the required examina-
tion of candidates before they took the habit or made their first
profession?
(c) About Professed Sisters
22, How many members are there at present in the congrega-
tion: (a) with temporary vows; (b) with perpetual vows?
23. Have the temporary vows always been renewed at the
proper time?
24 Have the members been admitted to take perpetual vows at
the expiration of the period of temporary vows?
25. How many professed Sisters or novices have died since the
last report?
(d) About Sisters who have left or have been dismissed
26. How many members have left the institute since the last
report? (a) of the novices; (b) of professed Sisters with tem-
porary vows; (c) of professed Sisters with perpetual vows.
27. Have the rules regarding the dismissal of members, as laid
down in the constitutions, been always observed?
28. Has a dispensation from the vows always been obtained in
cases of dismissal, and from what ecclesiastical Superior?
CI , Original from
■OOglt UNIVERSITY OFWISCONSIN
Q
APPENDIX 465
29. Has, in cases of dismissal of Sisters with perpetual vows,
the confirmation of the Holy See always been obtained?
30. Has the entire dowry, however invested, and the furniture
they brought, in its present condition been returned to those
leaving for any reason whatever?
31. Have those who have left the institute, having no property
of their own, been provided with sufficient funds for their safe
and decent return to their families?
II. About Property
(a) About Houses
33. How many houses does the institute possess, and in which
dioceses are they located? Has the institute any provinces, and
if so, how many?
33. Have any new houses been opened since the last report, and
if so, how many? Has the proper authorization been obtained
for all, and has the mode of procedure prescribed by the consti-
tutions been followed ?
34. How many members of the different classes arc there in
each house, and in what works have they been employed (in case
the institute has charge of different works)?
35. Has any house been suppressed since the last report, and
by what authority?
36. Has each member her own cell, or at least her own bed in
the common dormitory, properly separated from the others?
37. Has a place been set aside with all necessary conveniences
for the care of the sick ?
n
3&. Has a sufficient number of rooms been set aside, as should
be, for the reception of guests, apart from the community rooms ?
39. Has the dwelling of the chaplain or of the confessor a
separate entrance, and has it any communication with that of the
Sisters?
(b) About Finances
40. What has been the yearly income and expenditure since the
last report; (a) of the institute in general, and (b) of each house
in particular?
41. Has the institute or any individual house acquired, since the
last report, any movable or immovable property, and what is its
value?
G Original from
UOglt UNIVERSITY QFWI5C0NSIN
466 APPENDIX
42. Has the money always been invested profitably, yet honestly
and safely?
43. Has there been any loss or damage since the last report;
if so, how much and from what cause?
44. Has any immovable or very expensive movable property
been alienated, to what value and by what authority?
45^ Has any part of the capital been spent?
46. Are there any debts on the property in common, or on any
house in particular, and to what amount?
47. Has any new indebtedness been incurred since the last re-
port; if so, how much and by what authority?
48. Has each house a procurator or treasurer other than the
local superiors and the treasurer general ?
40. Have the procurators, general and local, given a report of
their administration at stated times, and have these reports been
examined and approved?
50. Are there any lawsuits pending about the property?
51. Has each house a safe closed with three keys, and are the
laws bearing on the subject observed?
52. Have money or other valuable been accepted from lay peo-
ple for safe keeping, and on what conditions?
53. Have the dowries of the Sisters been invested safely and
profitably, according to Canon Law ? Has any part of them been
used ; if so, how much, in what manner, and by whose authority?
54. Arc any pious legacies or foundations in the institute, either
for Masses to be offered or for works of charity; if so, which
are they?
55. Have the obligations been faithfully carried out?
56. Has the principal of those foundations been duly invested,
and is there an entirely separate account kept of them?
57. Has an account of these foundations been rendered to the
Bishop, according to the constitution " Conditae "T
58. How much of the favorable balance of each house has been
turned into the common treasury at the end of each year?
59. Have all contributed their share willingly or unwillingly?
60. Have the superior or treasurer any money of which they
can freely dispose, even for the welfare of the institute, without
rendering an account of it?
Q
J Original fro ni
UNIVERSITY OF WISCONSIN
>gk
APPENDIX 467
Q
III. About Discipline
61. Are the spiritual exercises carefully performed in each
house, as prescribed for each day, month, year, or other times?
62. Do all the members hear Mass daily?
63. Can all members be present at the common exercises, and
are those who must occasionally be absent from the one or the
other on account of domestic work, given time to perform them
privately afterwards?
64. Is the decree " Quemadmodum" observed, (a) with regard
to the manifestation of conscience; (b) with regard to sacramen-
tal confession? Is the decree "Sacra Tridcntina Synodus" con-
cerning Holy Communion observed, and are both decrees read
in public at stated times in the vernacular?
65. Is the ordinary confessor changed every three years or
confirmed by lawful authority?
66. Are the prescriptions concerning the enclosure in that part
■_
of the house especially reserved for the religious faithfully car-
ncd out?
67. Are the religious frequently given the privilege of the par-
lor, and arc the constitutions on that point observed?
08. Do the superiors always give a companion to Sisters leav-
ing the house ?
69. Are catechetical instructions given, as also pious exhorta-
tions to the lay-sisters, to the pupils, to the servants and others
living in the house, how and at what times?
70. Are writings on piety, religion, etc., even for the exclusive
use of the community, ever printed without the consent of the
Bishop?
71. Do the members use any books and which, either ancient
or modern, even written by hand, edited with the permission only
of the Superiors of the congregation?
About the Observance of Certain Special Laws
72. Are all the regulations concerning the general chapter faith-
fully carried out : la) in regard to the letters of convocation ; (b)
in regard to the election of delegates; (c) in regard to the elec-
tion of tellers and of a secretary; (d) in regard to the election
of the superior general; (e) in regard to the election of general
councillors, treasurer, and secretary?
jle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
468 APPENDIX
%
o>
a
7i. Has perfect freedom been given to the members for writing
and for receiving letters which are exempted from the inspec-
tion of superiors?
74. Has the law concerning the changes of superiors after a
certain lapse of time been faithfully observed? Have any dis-
pensations been obtained from the law, how many and for whom?
75. Have the genera! and provincial superiors rightly per-
formed the prescribed visitation of the houses?
76. Have the superior general and the provincial and local
superiors called their councils at fixed times to treat of the busi-
* ness of the congregation, of the province or of the house?
77. Has due liberty been given to the councillors in these de-
liberations?
78. Have the elections of the general chapter been made freely
and according to the laws?
79. Have the superiors with the required motherly care sup-
plied all necessaries to the members, especially with regard to
food and clothing? Are there any among the members who pro-
cure these things for themselves from outsiders?
80. Is the number of Sisters in any place so inadequate that
they arc overburdened with work to the serious detriment of their
health?
81. Is due provision made for the comfort of the sick, and arc
their corporal and spiritual needs charitably attended to?
82. Have the pontifical decrees been publicly read at the ap-
pointed times?
About the Works of the Congregation
83. How many persons or classes of persons have been bene-
fited by the works to which the religious devote themselves ac-
cording to the scope of the institute?
%\. If the number of such persons has decreased since the last
report, give the reasons.
85. For congregations which collect from door to door:
(a) Do the constitutions clearly and certainly authorize them
to collect from door to door?
(b) Has the decree " Singulari," of March 27, 1906, been in-
serted in the constitutions?
(c) Is this decree faithfully observed in all its details?
66. Have the Sisters in their houses any hostelries or hoa-
gle
, .,1,, Original from
UNIVERSITY OF WISCONSIN
APPENDIX
469
pitals for all classes of persons, even of the other sex, and if so,
with whose permission and with what safeguards?
87. Have the Sisters taken upon themselves the care of the
domestic department in seminaries, colleges, and other houses of
ecclesiastics, and to what extent?
88. Do the Sisters practice any works of charity (such as tak-
ing care of infants, of confinement and surgical cases) which ap-
pear improper to virgins consecrated to God and wearing the
religious habit?
89. Have the Sisters who wait on the sick in their homes always
used the precautions prescribed by the constitutions?
90. Have the superiors ever allowed Sisters to dwell in the
houses of lay people and for how long?
91. Has, since the last report, any new work, or kind of work
been added to those already existing, and by what authority?
92. Have any abuses crept into the congregation, or into indi-
vidual houses, and of what nature?
93. Are there any troubles or difficulties existing, (a) with the
ordinaries, (b) with the confessors, (c) with the chaplains?
It is evident that this questionnaire is not to be answered by
all alike. Besides, it may be reasonably expected that the S.
Cong, of Religious wilt modify and shorten it according to the
Code. As it is now, it might prove irksome to the superiors
who have to answer all those detailed questions.
oogle
Original from
UNIVERSITY OF WISCONSIN
G I Origmalfrom
008IL UNIVERSITY QFWI5C0NSIN
;Ie
Original from
UNIVERSITY OF WISCONSIN
6W71W70
Kek«nt
B89097198170A
^le
Original fro ni
UNIVERSITY OF WI5C0NSI
Q
n
■
(
-
om
0FWI5C0NSIN
-
iibrarp
at fit
flHnfoerait? of WtetoMin
►ogle
Original from
UNIVERSITY OF WISCONSIN
>Ie
Original from
UNIVERSITY OF WISCONSIN
G I Originalfrom
UOglC UNIVERSITY 0FWI5C0NSIN
A COMMENTARY ON
THE NEW
CODE OF CANON LAW
By THE REV. P. CHAS. AUGUSTINE, O.S.B., D.D.
Projtstor of Canon Laiu
■
Book III
De Rebus, or Administrative Law
Volume IV
On the Sacraments (Except Matrimony)
and Sacramentals
p
(Can. 726-1011,1144-1153)
Second, Revised Edition
B. HERDER BOOK CO.
-
17 South Broadway, St. Louis, Mo.
3
AND
68, Great Russell St., Loudon, W. C.
1921
'le
£ " ^ 4 %\s* Original fro ni
UNIVERSITY OF WISCONSIN
NIHIL OBSTAT
SfL Ludovici, die IS- Feb. 1921
F. G. Holweck,
Censor Librorum
IMPRIMATUR
Sti. Ludovici, die 16. Feb. 1921
^Joannes J. Glennon,
Archiepiscopus
Sti. Ludovici
Copyright, 1920
by
Joseph Gummersbach
All rights reserved
Printed in U. S. A.
VML-BM.LOU CO»P*«r
•ItQMAMION ANO Hi- v„n
yC jle
Original from
UNIVERSITY OF WISCONSIN
■in
4
587680
CONTENTS
PAG1
Book III. Ecclesiastical Things i
ix? Preliminary Remarks I
Things in General 2
Simony 5
Penalties against Simony 13
When There Is No Simony 16
a
PART I. THE SACRAMENTS 19
Administration and Reception 19
The Three Sacraments Which Cannot Be Repeated . . 22
Rites to Be Observed 25
The Holy Oils 28
No Unlawful Exactions Permitted 31
jj Title I. Baptism 33
j Ch. I. The Minister of Baptism 37
The Ordinary Minister 37
Extraordinary Ministers 41
j) Baptism of Adults 44
Cs. II. The Subjects of Baptism 46
The Wayfaring State 48
Children of Infidels 53
Children of Non-Catholics 5*»
Baptism of Adults 57
Disposition for Baptism 61
Baptism of Insane Persons 62
Cn. III. Rites and Ceremonies of Baptism .... 65
Rite 66
Baptismal Water 67
Method of Baptizing 69
Private Baptism 70
Christian Names 73
Hi
dbyC jle
j , Original fro ni
UNIVERSITY OF WISCONSIN
■
P
-
iv CONTENTS
PAGE
Ch. IV. Godparents or Sponsors 75
Sponsors at Conditional Baptism 76
Number of Sponsors 77
Requisites of I-egal Sponsorship 77
Spiritual Relationship 83
Duties of Sponsors 83
Ch. V. Time and Place of Baptism 85
Solemn Baptism 86
Place of Baptism 87
A Baptismal Font in Every Parish Church .... 88
Solemn Baptism in Private Houses 91
Ch. VI. Baptismal Record and Proof 94
Proof of Baptism 95
Title II. Confirmation 97
Matter and Form 97
Ch. I. The Minister of Confirmation 100
The Bishop's Power 107
Duty of the Bishop 109
Ch. II. The Subject of Confirmation 112
Ch. III. Time and Place of Administering Confirma-
tion 116
Cn. IV. Sponsors 118
Requisites of Sponsorship 1x9
Requisites of Licit Sponsorship 121
Spiritual Relationship 122
Ch. V. Record and Proof of Confirmation .... 123
Record 123
Proof 124
Title III. The Holy Eucharist 125
Ch. I. Tiie Holy Sacrifice of the Mass .... 126
Art. 1. The Celebrant of the Mass 126
Concelebrating Forbidden 127
The Celebret 128
The Obligation of Saying Mass 132
Binating 134
jle
% ,|,, Original from
UNIVERSITY OF WISCONSIN
CONTENTS v
PAGI
Moral Disposition of the Priest 140
The Obligation of Fasting Before Saying Mass , 141
Application of the Mass 142
Preparation and Thanksgiving 146
Vestments for Mass 147
No Assistant Priest Allowed at Mass 149
Mass Without a Server 150
Art. 2. Rites and Ceremonies of the Mass .... 152
The Species 152
Observance of the Rubrics and Rites 156
Art. 3. Time and Place of Celebrating the Mass . . 160
The Hour for Saying Mass 162
The Place for Saying Mass 168
Ajtr. 4. Alms and Stipends for Masses 175
Various Kinds of Mass Stipends 183
No Trafficking in Mass Stipends Allowed .... 186
Obligation Never Ceases 189
Number of Masses Not Determined 190
Mass Stipends to Be Fixed by the Ordinary . . 191
Additional Stipulations X92
Time of Fulfilling the Obligation 197
Posters in Churches 200
Masses Sent Away 201
Duration of the Obligation of a Mass Stipend . 202
Duties of Ordinaries and Religious Superiors . . 209
Stipend Books 210
Ch. II. The Holy Eucharist as a Sacrament . . 213
Art. 1. The Minister of Holy Communion .... 213
Communion at Mass and Outside of It 215
Public Communion for the Sick 218
■
Private Communion 219
The Holy Viaticum 221
Communion Under the Species of Bread .... 223
Art. 2. The Recipient of Holy Communion .... 224
Communion of Children 22s
Who Are Not to Be Admitted to Holy Communion . 229
Communion May Be Received Only Once a Day . . 233
The Eucharist Fast 234
->Je
f ■ j ^ Original fro ni
UNIVERSITY OF WISCONSIN
vi CONTENTS
PAGI
Obligation of Receiving: Communion 236
The Duty of Parents and Others 239
Unworthy Communion Does Not Satisfy the Law . 240
Communion on Holy Thursday 240
Frequent Communion 241
Duty of Receiving the Viaticum 242
Rite of Holy Communion 244
Aet. 3. Time and Place for Distributing Holy Com-
munion 245
Time 245
Place 247
Title IV. The Sacrament of Penance 249
•a
Ch. I. The Minister of Penance 251
Ordinary Jurisdiction 255
Delegated Jurisdiction 260
Confessors of Exempt Religious 265
Confessors of Female Religious 266
Examination of Confessors 273
Limited Jurisdiction 275
Jurisdiction Expressly to Be Granted 277
Revocation of Jurisdiction or License 278
Confessors of Vagi and Peregrini 282
Absolution in Danger of Death 286
Confessors at Sea 289
Absolutio Complicis Invalida 291
Additional Prayers 294
Absolution Not to Be Refused or Deferred .... 294
Wholesome Penances 297
The Confessor a Judge and Physician 208
The Seal of the Confessional 300
Use of Knowledge Gained Through Confession For-
bidden 303
Novice-Masters and Directors Not to Hear Confes-
sions 306
The Duty of Hearing Confessions 307
Ch. II. The Reservation of Sins 311
Only One Sin Properly Reserved to the Holy See . . 318
Reservation to Be Made at the Synod 3*9
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
CONTENTS vii
FAG1
Exempt Religious Superiors 321
Number and Quality of Reserved Cases 322
Promulgation and Absolution of Reserved Cases . . 330
When Reservations Cease or Lose Their Force . . . 334
Ch. III. The Subject or Penance 337
Matter and Integrity of Confession 337
Confession Through an Interpreter 340
Obligation of Denouncing Sollicitation 341
Instruction of the Holy Office of Feb. 20, 1866 ... 343
Instruction of the Holy Office of July 20, 1890 . . . 345
Confession May be Made in Any Rite 347
The Annual Confession 348
Sacrilegious Confession 349
Ch. IV. The Place for Hearing Confessions ... 350
Ch. V. Indulgences 354
Art. 1. Grant of Indulgences 354
Who May Grant Indulgences 356
K
The Papal Blessing 359
Privileged Altars 365
Promulgation of Indulgences 370
Plenary Indulgences 374
The Transfer of Feasts and Indulgences .... 376
The Day for Gaining Indulgences 378
Loss of Local and Real Indulgences 379
Art. 2. The Gaining of Indulgences 381
Visit of a Semi-Public Oratory 385
Indulgences Applicable to the Dead 387
Confession and Communion 388
Prescribed Works 390
Commutation of Pious Works 394
Mu*« 395
Title V. Extreme Unction 396
Ch. I. The Minister of Extreme Unction .... 396
Ch. II. The Subject ok Extkeme Unction . . . .401
Ch. III. Rites and Ceremonies 406
The Anointings 407
oogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
viii CONTENTS
PACK
Title VI. Holy Orders 409
Ch. I. The Minister of Ordination 412
Promoted by the Pope 414
Mandatum de Consecrando 4!4
Consecrators 4'7
The Episcopus Proprius 418
Vicars and Prefects Apostolic, Prelates Nullius . . . 424
Recipients of Dimissorial Letters 43*
Rights of Religious Superiors 434
The Bishop of the Diocese , . 439
Ch. II. Subject of Holy Orders 444
Valid and Licit Ordination 444
Necessity and Utility of the Diocese 447
Forbidding Ordination ex Informata Conscientia . . 448
The Clerical State Must Be Embraced Freely . . . 45*
Clerical Training in Seminaries 451
Art. 1. Requisites of Candidates for Ordination . . 454
The Canonical Age 457
The Knowledge Required 457
Ordinations per Saltum Not Permitted 460
The Interstices 461
Tttulus Ordinationis 464
Loss and Lack of Title 468
Tituli Servitii et Missionis 471
Titles for Religious 474
s
Art. 2. Irregularities and Other Impediments . . . 476
Irregularities ex Deftctu 478
Irrcgularties ex Delicto 484
How Irregularity ex Delictn Ts Incurred .... 495
Ignorance No Excuse 501
Multiplied Irregularities and Impediments . ■ . 502
The Ordinary's Dispensing Power 504
Petitions for Dispensation 507
Ch. III. Prerequisites of Ordination 512
Testimonials 513
Examinations Before Ordination 521
Publication 01 the Ordination 524
Special Information 525
Spiritual Exercises or Retreat 526
Go >gle
, ,] , Original fro ni
UNIVERSITY OF WISCONSIN
CONTENTS is
PACT
Ch. IV. Rites and Ceremonies or S. Oedination . . 538
The Ordination Mass 539
Oriental and Latin Rites 530
Holy Communion in S. Ordination 531
Ch. V. Time and Place of Ordination 532
Days on Which Ordination May Be Conferred . . . 532
Defective Ordination 536
Ordination Outside the Diocese 544
Place of Ordination 545
Ch. VI. Roster of Ordinands and Attestation of
Ordination 548
PROCEDURE IN ORDINATION CASES (LIB. IV,
TIT. 21) S50
The Competent Court 55o
The Plaintiff 554
Mode of Procedure 555
Suspension Pending Trial 555
Two Sentences Required 556
Title VIII. The Sacramentals 55^
Definition 558
Institution, Interpretation, Change 559
Minister of the Sacramentals 560
Diverse Consecrations and Blessings 561
Rites to Be Ohserved 565
Subject of Sacramentals 566
Effect of Constitutive Blessings 5°7
Exorcisms 5°8
Appendix to Can. 821 ........... 57*
Annendix II. Unleavened or Leavened Bread .... 572
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
-'
■
pi
THE NEW CODE OF
CANON LAW
BOOK III
ECCLESIASTICAL THINGS
T
PRELIMINARY REMARKS
c
s
The third book of the Code treats of " things " (de
rebus). The provisions which it embodies may be called
administrative law, because the " things " comprised
therein together form the object of ecclesiastical adminis-
tration, either in the merely spirtual or the mixed domain.
Besides, since a potiori fit denotninatio, and the Sacra-
ments constitute the most important part of this Book,
the sacred ministry of the Church here becomes most con-
spicuous. But even mixed things, such as benefices and
temporalities, must be assigned to the administrative sec-
tion. One doubt only, at least for a moment, arose in
our mind, viz., concerning the magisterium ecclesiasticum,
whether it has found its proper place. However, we
must admit that the place for it was properly chosen.
For although the teaching office may be reckoned among
the personal rights of jurisdiction, yet, considering its
objects (such as the censorship of books, seminaries, and
schools), it is manifest that these fall under the heading
of res. The Code, therefore, in Book III, treats in 827
canons of the following subjects:
Part I. Sacraments and Sacramentals.
■
Fart II. Sacred Places and Times.
Part III. Divine Worship.
Part IV. The Magisterium Ecclesiasticum.
Part V. Ecclesiastical Benefices.
Part VI. Church Property.
t
oogle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
a ECCLESIASTICAL THINGS
things in general
Can. 726
Res dc quibus in hoc libro agitur quaeque totidem
media sunt ad Ecclesiae finem consequendum, aliae
sunt spirituales, aliae teraporales, aliae mixtae.
The things of which this book treats, and which are as
many means by which the Church attains her end, are
either spiritual, or temporal, or mixed. The end of the
Church is foremost and above all spiritual. But since
the society founded by Christ is visible, and a moral or
artificial person with corporate rights, the Church as such,
as well as her members, cannot abstract from temporal or
bodily things. The very notion of a sacrament, a thing
sacred par excellence, implies a visible sign, which pre-
supposes an inherent right to the appropriation and use
of such material things as are necessary for the proper
and divinely established administration of these visible
signs. Furthermore divine worship requires buildings
and ground on which to erect them, as well as sacred
furniture to be used for the divine service. More-
over, the ministers of the Church are entitled to a decent
support. Lastly, charitable institutions, which are the
natural offspring of the Church, require material aid
and subsidy. All of which goes to show that many ob-
jects or things, no matter how temporal or material they
may appear, become hallowed by the use to which they
are put in the Church, who, as it were, transfers them
into a higher sphere.
But it must never be lost sight of that temporal things
claimed by the Church are but means to realize the
end for which she has been founded (media sunt ad
Ecclesiae finem consequendum), and consequently are
>gle
Original from
UNIVERSITY OF WISCONSIN
CANON 726 3
a
a
not sought by her for their own sake, but only as far as
her end requires. The scope of these requirements,
needless to say, is wide, and the needs are enormous,
especially now-a-days, when Christian charity is over-
whelmed with all sorts of demands.
h
The Code treats of three kinds of things: spiritual,
temporal, and mixed.
First, let us answer the question, what is a thing, a
rest
The reader may remember that the division adopted by
the Code rests on the old trilogy : pcrsonae, res, octioncs.
After having treated of the rights and duties as annexed
to the persons of men, the legislator now inquires into
the objects of right or law (obiecta iuris), leaving actions
to be dealt with in the last two books, in connection with
the penal code.
A thing (res) is an object that exists outside, though
it may be strictly connected with, a person, and is per-
ceived by the senses. When we say " perceived by the
senses," this phrase must be understood in the way a
human being reasons. There are corporeal things, i. e.,
such as affect the senses, and incorporeal things, which
are not the object of sensation and can neither be seen
nor handled, as, for instance, a hereditary right, an ad-
vowson, a usufruct.1 The latter, in some way, are ob-
jects of sensation, else they would not be mentioned in
the law.
The Roman law 2 took cognizance of divine things
(res divlni iuris), and things appertaining to men (res
hutnani iuris). The divine things it divided into res
sacrae, places or objects set apart and solemnly conse-
p
"-.
iL. i. Dig. 1, 8; Blacks tone- a Dig. t. c; Runsaj-Lanciani,
Cooley, Commentaries on the Lam of Manual of Roman Antiquities, 1901,
England, Chicago, 1879, Vol. 1, I 17. p. 300.
G Original from
UOglt UNIVERSITY 0FWI5C0NSIN
4 ECCLESIASTICAL THINGS
crated to the gods by a deliberate act of the State, such
as groves, altars, chapels, temples ; and res religiosae sive
sanctae, places or objects which acquired a sacred char-
acter from the purposes to which they were applied,
such as sepulchres and the walls of a fortified city.
Our Code adopts a somewhat different division, though
the distinction of the Roman law is still apparent. But
one thing is certain : all " things " dealt with here are
ecclesiastical (res ccclcsiasticae). The division adopted
may be illustrated by the subjoined diagram:
■
Q
Res ecclesiastical *
fa) stride spirituales
'i. spirituales lb) sacrae
2. temporalis Ic) religiosae
3. mixtae
1. Spiritual things, in the strictest sense, are such as
directly refer to the salvation of souls and their super-
natural end. such as, e. g., the Sacraments, the sacra-
mentals, prayer, fasts and feasts, indulgences, ecclesias-
tical offices.
Res sacrae are things made sacred by a special dedica-
tion, blessing, or consecration, such as churches, ceme-
teries, sacred vessels,3 etc.
Res religiosae are things connected with the religious
life or such as bear a religious character without a special
blessing or consecration, for instance, religious houses,
hospitals, etc.
2. Temporal things are such as are employed for the
temporal support of the Church and her ministers, or
for other necessities, for instance, dowries, funds, sal-
aries, collections, subscriptions, etc.4
3. Res mixtae are such things as combine a temporal
8 See can. 1154: can. 1497.
• Cfr. DeYoti, InsMut. Canonic., 1. ir, Leodii, 1874, t. 1, p. jo« f.
A
>Ie
, ,] , Original from
UNIVERSITY OF WISCONSIN
CANONS 727-728 S
with either the strictly spiritual or the sacred or religious
character, as, 2. g., ecclesiastical benefices and the ius
patronatus, also churches and sacred vessels in so far
as a distinction may be made between the consecration
or blessing and the material value of the consecrated
or blessed object. All these things, then, in so far as
they fall under ecclesiastical jurisdiction, form the sub-
ject-matter of the third book.
c
s
SIMONY
Can. 727
§ z. Studiosa voluntas em end i vel vendendi pro pre-
tio temporali rem intrinsece spiritualem, ex. gr.f Sacra-
menta, ecclesiasticam iurisdictionem, consecrationem,
indulgentias, etc., vel rem temporalem rei spiritual!
adnexam ita ut res temporalis sine spirituali nullo
modo esse possit, ex. gr., beneficium ecclesiasticum,
etc., aut res spirituals sit obiectum, etsi partiale, con-
tractus, ex. gr., consecratio in calicis consecrati vendi-
tione, est simonia iuris divini.
§ 2. Dare vero res temporales spirituali adnexas pro
temporalibus spirituali adnexis, vel res spirituales pro
spiritualibus, vel etiam temporales pro temporalibus,
si id ob periculurn irreverentiae erga res spirituales ab
Ecclesia prohibeatur, est simonia iuris ecclesiastici.
p
Can. 728
Cum de simonia agitur, emptio-venditio, permutatio,
etc., late accipiendae sunt pro qualibet conventione,
licet ad effectum non deducta, etiam tacita, in qua scili-
cet animus simoniacus expresse non manifestetur, sed
ex circumstantiis colligatur.
, ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
igle
6 ECCLESIASTICAL THINGS
Can. 727, § iF defines simony iuris divini as a delib-
erate eagerness to buy or sell for a temporal price any-
thing either intrinsically spiritual, or temporal with a
spiritual thing attached to it in such a way that the
temporal without the spiritual object could not exist at
all, or the spiritual object itself, though only in a partial
way, is intended in the bargain.
1. Studiosa voluntas, or the deliberate will. externally
manifested, here implies not only the essential malice of
a sin against the virtue of religion, but also the juridical
element of external manifestation. For,, as the Gloss6
says, unless simony is external, it can be neither proved
nor punished. Hence merely mental simony, if it is
not manifested in any shape or form, does not enter the
canonical realm. Different from this is the state of
mind which prompts one to give or offer something
temporal, not as a real price, but as a motive for at-
taining or causing something spiritu 1, or if the spiritual
is given by way of gratuitous compensation, or vice
versa.0 This may happen when a gift is presented under
the pretext of just remuneration, although the real motive
is to obtain a spiritual favor, and vite versa.7 However,
if there is no intention to commit simony, and the senti-
ment of gratitude prevails, no simony can be construed.
Another kind of simony is called conventional, namely,
when a pact intervenes, although the object of the
simoniacal contract has not yet been delivered, or de-
livered only by one of the parties. Simony is real not
only when a formal agreement has been made, but when
-,
0 Ad. c. i, C. I, q. I, 1. v. " Qui- e Prop. damn, ab Innoc. Xla -
dam." The malice consists in 'Ins 4s (Denrinaer, Enchiridion
that a spiritual thing is treated as 1063).
if it were menial and entirely de- 7 Layman, Theologia Moraiif 1
pendent on man's will, and not on iv, tr. 10, c. 8, n. 66.
God's grace and power. Cfr. St
Thorn,, Hi, q. too, a. 1.
*Ie
I , Original from
UNIVERSITY OF WISCONSIN
CANONS 727-728 7
the object o* that agreement has been delivered by both
parties.
Confidential simony is that committed by the resigna-
tion of a benefice without regard to the ecclesiastical
law.
2. The next element of simony is sale or purchase.
Hence there must be a contract as understood by common
law or custom. Can. 728 says :
When 'th&Pe is question of simony, purchase, sale,
and other similar terms must be taken in a wide sense
as signifying any stipulation, even though not fulfilled,
and made onfy in a tacit manner, i. e., one in which the
simoniacal 'intention was not explicitly manifested, but
could be gathered from the circumstances of the case.
Hence the stipulation required to render a transaction
simoniaca! may be any kind of onerous contract, sale
or exchange, bailment, hiring, borrowing, or debt.8 It
is not required that *fSie pact be carried into effect. There-
fore if one would promise to give $1000 for a certain
ecclesiastical office, for instance, a pastorship, he would
be guilty of simony. Lastly, the agreement may be
only tacit, i. e., without a written or oral understanding
as to the sort of benefit, whether spiritual or temporal.
All that is required by law is a probable conjecture
as to the simoniacal intention (ex circumstantus colliga-
tur). Such conjectures8 may be based on the quality
of the person who gives or receives, the quantity of
the gift, and the time. Thus a poor person who gives
a large sum to a prelate in order to obtain a spiritual
favor, may justly be suspected of acting from a wrong
motive, whereas a rich person need not be suspected,
a
c
S One of the four «p«iet of eon- 9 Cfr. c. 18, X, V, 3 de simonim;
tractvi inncminatus: do ul des, Suarcz, De Reliff. L iv, de rim., c
facio ut facias, do ut facias, facio 36, n. 12 (ed. Paris, 1859, t tj,
ut dts. Cfr. Ewel. V. 3. »• 4- 843 i)«
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
8 ECCLESIASTICAL THINGS
because he or she may intend merely to make a present.
Besides, the persons who give and those who take may
be bound by friendship, blood-relationship, etc., — reasons
which would make simony a rather remote motive.
Again, the reputation of giver and recipient must be
taken into consideration.
The quantity of the gift must also be weighed. A large
and disproportionate sum might cause suspicion, whereas
an insignificant sum would not. The proportion between
the price paid and the spiritual benefit received may also
be indicative of the underlying intention. Consumable
gifts (eatables, etc.) are not to be reckoned. Lastly, the
time may offer a basis for conjecture. If the price is
offered long before or after the spiritual benefit is be-
stowed, simony can not easily be presumed. The cir-
cumstances of the person should also be taken into
account, — whether he is in need or not, etc. At any rate,
some sort of agreement must be made, and consequently
presents made out of liberality, pious donations, or char-
itable subsidies cannot be branded as simoniacal.10
3. The temporal price is generally comprised by the
threefold kind mentioned in the Decree of Gratian : 1X
(a) Munus a tnanu, or pecuniary advantage, which
comprises money and other movable as well as immovable
things, the remission of debt, easements, etc. ;
(b) Munus a lingua, which implies recommendations,
praise, adulation, flattery, of a kind which is a matter
of stipulation and procures a benefit;
(c) Munus ab obsequio, which involves service of any
kind, either habitual or actual, not due by reason of
mutual obligation, hire or pay, but rendered with respect
to a spiritual favor, for instance, an office. Here again
lOCfr. cc. 3, 18, 34, X, V, 3; Uy 11 C. 114. C. it q. 1; c. I, C.
man, /. c, n. 8. 1, q. 3.
G 1 Original from
OOglC UNIVERSITY 0FWI5C0NSIN
CANONS 727-728 9
it must be noticed that free and voluntary service, ren-
dered, e. g.} by a friend or relative to a Cardinal or
Bishop, though in the hope of obtaining a spiritual
benefice, is not simony. Of course, there may be room
for suspicion in such cases.
It may not be amiss to state that there is no simony
involved if parents or ecclesiastical superiors promise tal-
ented boys a collegiate or seminary course, in order to
induce them to embrace the ecclesiastical state, or if
parents promise their children some temporal benefit
to induce them to frequent the Sacraments. There
is no real compact or mutual stipulation between the
parties.12
4. Finally, the spiritual element must be considered.
Our Code mentions two kinds of spiritual things: — such
as are intrinsically spiritual, and such as are annexed to
something spiritual.
(a) Intrinsically spiritual things, the Code says, by
way of example, are the Sacraments, ecclesiastical juris-
diction, consecration, indulgences, etc. Hence to admin-
ister the Sacraments for the sake of money would be an
act of simony.13 Thus also the administration of the
sacramentals for filthy lucre's sake would be simoniacal.
The same must be said concerning acts of jurisdiction,
absolution, delegation, grant of faculties,14 if performed
solely for a material reward. As to consecration, it is
well known that the bishop is not allowed to charge
anything, either for the sacred chrism or for consecration.
But compensation for expenses is not forbidden.15 Sel-
ling indulgences is simony in the truest sense of the word,
but no simony is implied if a contribution is demanded in
11 Layman, t. c, n. n. IB C. 22, C. 1, q. 1; c. at, X, V.
uCfr. C 1, q. 1: X, V, 3 pturim. 3.
14 C. 14. X, V, 4.
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gk
io ECCLESIASTICAL THINGS
the shape of an alms, as a requisite for gaining an in-
dulgence.16
Simony is committed by religious if they charge a
price for admittance to the religious state, because the
latter is something intrinsically spiritual. ir But dowries,
victuals or compensation cannot be looked upon as a
price for entering, but are necessary means of support.
Intrinsically spiritual is the act of preaching the word of
God and teaching the catechism, and hence to receive a
temporal remuneration for performing these functions
would be simony, according to S. Thomas.11 However,
preachers and teachers may lawfully be paid for admin-
istering their office.
These are the chief intrinsically spiritual things, i. e.,
such as are spiritual by their very nature and purpose,
as well as by their divine origin.
(b) There are, besides, certain temporal things dis-
tinguished by a spiritual character attached to them (res
temporalis rei spirituali adnexa). The Code speaks of a
twofold connection of the temporal with the spiritual:
( i ) That which is necessary to make the thing what
it is supposed to be, for the one supposes the other.
This is the case in all ecclesiastical benefices, pensions,
and in fact all religious things. Hence the adage, "Bene-
ficium propter officiutn," which means that the material
element necessarily presupposes the spiritual. This is
what the authors 1Q call subsequent or consequent con-
nection.
(2) The other connection is present when the spiritual
character or thing is the object, though only partial, of
the contract. This is what is styled antecedent connec-
ie Layman, /. c, n. 40. a. 3, ad. a; Suarei, /. c, c. 18, n.
IT Cfr. cc. 8. 10. jo, X. V, j. 23 i.
is Summa Thtoi, I MI, q. too, 1» S. Thorn. II-II, q. 100, a. 4;
Suarez. /. c, c. 13.
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANONS 727-728 11
tion, for instance, the consecration in the sale of a con-
secrated chalice. For the chalice is made and is such
before it receives any consecration, and therefore the
material element exists prior to the spiritual. Note,
however, the wording of the Code : the spiritual must be
intended in the bargain; in other words, because it is a
consecrated chalice, I buy or sell it. Since consecration
is intended in recto, and is something essentially spiritual,
therefore the bargain is an act of simony iuris divinu
On the other hand, as shall be seen in Can. 730, even a
consecrated chalice may be bought or sold. The same
rule is to be applied not only to consecrated vessels,
but also to churches, oratories, cemeteries and blessed
graves. It matters little whether the spiritual element
is of strictly divine origin or of ecclesiastical institution,
so long as it is spiritual in itself and attached to the
temporal element by the lawful authority. The hieratic
or sanctifying element is essentially spiritual or divine by
reason of the divine power of the Church.
§ 2 of Can. 727 provides that it is simony iuris ec-
clesiastici to give temporal objects annexed to spiritual
for other objects annexed to spiritual, or spiritual objects
for spiritual objects, or temporal objects for temporal
objects, when forbidden by the Church on account of
the danger of irreverence for spiritual things. This law
is evidently new, as the lack of quotations proves; but
the matter itself is old.
First note the term dare, to give, which, as the par-
ticle pro indicates, here means to exchange. The ex-
change must be of the same objects, e. g., if you exchange
one set of holy oils for another set of holy oils ; or one
consecrated chalice for another; or one Mass for an-
other; or if you preach for another who says Mass in
your place; or exchange one piece of church property
Q
>Ie
v ,1,., Original from
UNIVERSITY OF WISCONSIN
12 ECCLESIASTICAL THINGS
for another. But as there seems to be no sinful agree-
ment in these cases, what is it that renders the act
simoniacal? It is the express prohibition of the Church.
Yet, as Suarez 20 appropriately says, this would not be
sufficient ; therefore another reason is added by the Code :
ob periculum irreverentiae, — because these acts, though
not evil in themselves, concern sacred things and may
lead to irreverence. In order to remove this danger, the
Church, by positive legislation, prohibits even such acts as
are not in themselves sinful. This is especially the case
in the exchange of ecclesiastical benefices and in selling
holy oils or minor church offices."
o
penalties against simony
Can. 729
Firmis poenis in simoniacos iure statutis, contractus
E
ipse simoniacus et, si simonia committatur circa bene-
ficia, officia, dignitates, subsequens provisio omni vi
caret, licet simonia a tertia persona commissa fuerit,
etiam inscio proviso, dummodo hoc non fiat in fraudem
ciusdem provisi aut eo contradicente. Quare:
i.° Ante quamlibet iudicis sentcntiam res simoni-
ace data et accepta, si restitutionis sit capax nee obstet
reverentia rei spiritual! debita, restitui debet, et bene-
ficium, officium, dignitas dimitti;
2.0 Simoniace provisus non facit fructus suos; quod
si eos bona fide perceperit, prudentiae iudicis vel Ordi-
narii permittitur fructus perceptos ex toto vel ex parte
cidem condonare.
Apart from the penalties established by law (see Book
V, Canons 2371, 2392), every simoniacal stipulation is
20 De Rel., I. IV, dc simi., c. 7. X, V, 3; Fcmri'. '•rrmpta Bibli-
81 Cfr. c. 8, C 1, q. 3; c. 8, otkeca, s. v. "Simonia," n. 6.
Q
|M
oogle
f^ ^ v ,L> Original from
UNIVERSITY OF WISCONSIN
CANON 729 13
null and void, and simony committed in connection with
benefices, offices, and dignities renders the appointments
null and void, even though the simoniacal act was per-
petrated without the knowledge of the beneficiary, by a
third person, provided, however, it was not done in order
to defraud the one thus provided, or against his protest.
Therefore :
i.° Prior to any judicial sentence the thing simonia-
cally given and received must be restored, if restitution is
possible and feasible without irreverence to the spiritual
object, and the benefice, office or dignity must be sur-
rendered ; 1
2.0 The beneficiary of a simoniacal transaction cannot
receive the revenues of his benefice, but if he has ac-
cepted them in good faith, it is left to the discretion
of the judge or Ordinary to condone the income thus
received, either totally, or in part.
Since no other penalties are now in force except those
mentioned by the Code,22 the penalties of simony are :
(a) Those mentioned in can. 2371, 2392.
(b) The simoniacal contract is null and void. This
occurs in resignations of office, as stated in can. 185.
Furthermore no simoniacal stipulation is binding in the
ecclesiastical court and in the court of conscience.
Hence, if one has given a sum of money to a bishop in
order to obtain a certain ecclesiastical office, the contract,
even though made in writing, would be devoid of judicial
force. A simoniacal compact obliges neither in the forum
externum nor in the forum internum.
A reasonable doubt may be entertained with regard to
entering religion. The act is complete only after pro-
fession has been made, and hence one may ask: Is
the profession invalid? The Code does not give a direct
-
at Cfr. can. 6, *'.
jle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
14 ECCLESIASTICAL THINGS
St
answer to this question, nor do the Decretals M insinuate
or the authors 34 assert its invalidity.
As to indulgences it has been decreed M that all objects
endowed with indulgences must be delivered to the faith-
ful gratis; if anything is demanded for them, no matter
under what pretext, whether by way of price, exchange,
gift, or alms, the indulgences are eo ipso lost. Simple
blessings, without indulgences, are not subject to this de-
cree, so far as we know. We may add that the Sacra-
ments are valid, even though administered simoniacally,
for the Code only says that the contract, not the thing
stipulated therein, is invalid. Thus the blessing remains,
though the Church, by positive law, exempts indulgences
from the effect of a simoniacal act. The same must be
held as to acts of jurisdiction tainted by simony; they
are valid unless special provision is made to the contrary.
(c) Such provisions are here made concerning bene-
fices, offices, and dignities. Benefices are accurately de-
fined in can. 1409. Offices have been described in can.
145. By dignities are understood here, we think, not
only those mentioned in can. 394 (diocesan chapters),
but all which combine jurisdiction with preeminence,
such as a prelacy, to which class belong bishops and
abbots as well as the superiores maiores of religious
communities. The text says that if simony is committed
in connection with these benefices (presentation, ap-
pointment, election, postulation, nomination, etc.), the
subsequent prozision is null and void.30
(d) This penalty follows even if the simoniacal act was
28 Cfr. cc. 8, 19, 3". X, V, 3. Ill, 12; cc. 2, 11, u, 13. X, V, 3;
2* Cfr. Ferraris, Prompta Bibli' c. 2, Extrav. Comni., V, 1; Paul
olheca, s. v. "Simonio," art. r, n. 7. IV, "Inter caeteras," Nov. 37,
25 S. C. Indulg., July 16, 1887, »557; Pius V, "Cum primum,"
ad 3 {A. S. S., t. ao, 63 f.). April 1, 1566; " JntolerobXis,"
20 Cfr. c. 12, X, I, 6; c. un. X, June I, 1569.
►ogle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 729 15
a
committed by a third person. Hence if a relative or
friend endeavors to put a person into office, or to ob-
tain a dignity for him, the appointment, if made, is void,
no matter whether the person thus appointed had
knowledge of the simoniacal act or not." The case is
different, however, if the appointee protested against the
simony, or if a third person committed the crime to
prevent one from getting the office (ex odio).M
A moral and juridical consequence of this penalty is
that the thing simoniacally given and accepted must be
restored, provided, of course, restitution is possible. A
Sacrament administered simoniacally cannot be returned,
but the administrator must restore the price received to
the person who has paid it.2* An act of jurisdiction, if
validly performed, cannot he " restored." Nor, accord-
ing to the text, is restitution required or admissible if
it involves irreverence to some spiritual thing. This
would be the case if sacred relics, Agnus Deis, blessed
objects or consecrated vessels had passed through ir-
reverent hands and been sold, as happened not infre-
quently in the ninth century.
In making restitution the rules of justice and equity
must be conscientiously observed. Thus a consideration
for the bodily or physical exertion made in imparting
spiritual things, v. g., in the administration of a Sacra-
ment, preaching, etc., may be deducted from the amount
to be restored.
As to benefices, offices and dignities, the text says that
persons simoniacally in possession of them must be dis-
missed at once.30 Dismissal is not resignation, and there-
Q
..-.
2T Cfr. cc. as. 33. X, V, 3. ly, in order to damage the other.
MCfr. c. 37, X, V, 3: per frau- !• C MS. C 1, q. 1; c. 33, X,
d*m — in diifendium — malitioi* V, 3.
— hence envy may prompt a com- * Suirez, /. c, n. 15.
petitor or enemy to act simoniacal- »o C. 27, X, V, 3 and the Con-
ogle
/■^ -» v J„ Original fro m
UNIVERSITY OF WISCONSIN
-'
■
pi
16 ECCLESIASTICAL THINGS
fore no right, or compensation, or consideration can be
claimed in such a case. Both restitution and dismissal
must be completed before any declaratory or condemna-
tory sentence, because the law itself declares such simonia-
cal transactions null and void.81
The second consequence, that a simoniacally provided
person cannot claim any revenues, is perfectly logical ;
not having the right claimed, he cannot appropriate the
object of that right."
It may be added that these penalties and their conse-
quences follow real simony only; almost all canonists
exempt mental and conventional simony from these pen-
alties." As to confidential simony, which is committed
in benefices, we shall recur to it under that heading.
when there is no simony
Can. 730
Non habetur simonia cum ternporale datur non pro
re spiritual;, sed eius occasionc ex iusto titulo a sacris
canonibus vel a legitima consuetudine recognito ; item
cum datur res temporalis pro re temporali, quae tan-
quani subiectum habeat adnexum aliquid spirituale,
ex. gr., calix consecratus, dummodo pretium non au-
geatur propter adnexam rem spiritualem.
Here the Code considers two cases which apparently
constitute simony, yet do not.
1. There is no simony if a temporal object is given,
not as an equivalent for a spiritual thing, but on the oc-
casion thereof, for a reason acknowledged as just by
stitutions of Pius V, already 82 C. 115, C. 1, q. 1; c. 23. X, V,
quoted. 3-
«1C. 8. X, I, 35; c 41, X, V, 3. ssCf. Layman, /. c, n. 68; Fer-
raris, /. c, art. 3, n. 1 ff.
^V % ,1,., Original from
UNIVERSITY OF WISCONSIN
►ogle
CANON 730 17
a
either canon law or custom. Under this heading falls
the necessary and decent support of the clergy who ad-
minister spiritual things unto the faithful and receive
temporal things in return. Natural justice dictates that
the laborer is worthy of his hire, and that one who works
and occupies himself for another should receive his due.
There is no simony here because the salary is not given
as a temporal equivalent for the spiritual office and
there is no equalization or proportion intended between
the two.34
Canons who come to choir because of the daily dis-
tributions which are established by law precisely as an
inducement, do not commit simony; unless indeed, as St.
Thomas says, they purposely exclude every other inten-
tion."
Mass stipends do not involve simony because they are
not given as a price for the holy Sacrifice, or for the
intrinsic or concomitant labor involved in saying Mass,
but merely as an alms intended to contribute to the neces-
sary support of the sacred ministers."
Legacies and foundations are not simoniacal because,
partly, they bear the character of benefices, and partly
involve a merely material obligation not intrinsically
connected with the spiritual character, and partly partake
of the nature of Masses or salaries.87
From this it may also be seen that clergymen may,
without danger of committing simony, treat with bishop
or congregation for a just and sufficient support.8*
There is no simony committed if something is de-
manded for a plot or lot in a cemetery, for the purpose
84 I^jman, /. c, n. 60. " Suarea, J. c, c. 39, ». 17.
MQuacst. Quodlib., 8, q. 6. 38 Cfr. c. n, X, III, 5; Layman,
SflCfr. prop. dam. Wiclifi., n. /. c, n. 15.
i5 (Den*inger, n. 501).
ioi >gle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
18 ECCLESIASTICAL THINGS
of meeting the necessary expenses of maintenance. To
sell the right of burial in consecrated ground, of course,
would be simony.38
Taxes established according to the rules of justice and
custom are not simoniacal.40
2. There is no simony involved when a temporal ob-
ject is given for another temporal object which has
some spiritual benefit attached to it, as, for instance, a
consecrated chalice, provided, however, that the price be
not raised on account of the spiritual benefit. The rea-
son for this ruling lies in the fact that the connection
between the spiritual benefit and the material is ante-
cedent, and not intrinsically necessary, whilst, on the
other hand, the material and workmanship of the ob-
ject has a price. Hence churches, sacred vessels, and
vestments may be materially valued, provided the con-
secration or blessing attached to them is not prized, nor
the price augmented on account of the spiritual benefit.**
«flC. 15. x. III, 28; c. 41, X, «i Ltyman, I. c, n. 37; Sumrez,
V, 3. /. c, c 14, ii. 1a.
40 S. C. C, June io, 1896 (Coll.
P. F., n. 1930).
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
p
PART I
THE SACRAMENTS
administration and reception
Can. 731
§ 1. Cum omnia Sacrament a Novae Legis, a Christo
Domino Nostro institute, sint praecipua sanctifica-
tionis et salutis media, sum ma in iis opportune riteque
administrandis ac suscipiendis diligentia et reverentta
adhibenda est
§ 2. Vetitum est Sacramenta Ecclesiae ministrare
haereticis aut schismaticis, etiam bona fide errantibus
eaque petentibus, nisi prius, erroribus reiectis, Eccle-
siae reconciliati fuerint
3^
§ 1. As the Sacraments of the New Law, instituted
by Christ our Lord, are the chief means of sanctifica-
tion and salvation, the greatest care and reverence must
be taken that they be suitably and properly administered
and received.
The law is concerned mainly with the administration
of the Sacraments. They must be administered op-
in
portune et rite, says our canon. Opportune refers not
only to time and circumstances, but also to worthiness.
Hence the minister must beware of two extremes : ex-
treme severity and too great leniency. An instruction
of the S. C. de Propaganda Fide l enjoins mercy and
-
1 April 29, 1784 {Colt., n. 569).
19
jle
Original from
UNIVERSITY OF WISCONSIN
N
■
N
20 ECCLESIASTICAL THINGS
kindness, especially towards the newly converted and
those who live in places whither missionaries go but
rarely. The clergy, though perhaps compelled to im-
pose a public and protracted penance, should not de-
prive sinners, if really repentant, of the benefit of ab-
solution, nor refuse them the Holy Eucharist. Besides,
a distinction must be made between different crimes and
criminals, especially if excommunication is involved, al-
though the latter penalty renders them incapable of re-
ceiving the Sacraments. Excommunicati tolerati may
be treated more leniently than vitandi
Rite signifies, properly speaking, with due regard to
the use of the rite prescribed. This point is treated more
fully in can. 733. Rite may also refer to the inten-
tion of the minister and the recipient. This, according
to the common teaching of theologians and canonists,
must be virtual, i. e.f one which, though not present here
and now, continues to exert its influence by virtue of an
intention previously had and never retracted, on the part
of the minister. On the part of the recipient, a habitual
intention, i. e., one that proceeds from the inclination of
the mind and routine, but without actual reflection or even
with distraction, suffices.2
But rite may also have another meaning, viz., without
simulation. Simulation is an act by which one utters the
form required over valid matter, but directly excludes
the intention of effecting a Sacrament. This is strictly
prohibited, and the contrary proposition, " Grave and
urgent fear is a reason for simulating the Sacraments,"
has been formally condemned.8 Entirely different from
2 Cfr. Devoti, Institute Con., a Prop, dam. ab Innoc, XI, March
1874, Vol. I, p. 319 f. ; Lclm V.'.i .]. 4, 1679, d. 39 (Demioger, Enckiri-
Thtol. Moralis II, n. 22; Marc, dion, n. 1046).
Jiutitut. Moroles Atphotuiana*. II,
1412 fl.
gle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 731 2i
fictitious or feigned administration is dissimulation, i. e.r
the act of pretending to administer the Sacraments,
which is rather a concealed refusal, and is not only licit,
but at times may be necessary.4
On the care and reverence with which the Sacraments
u
must be treated, we shall say what is necessary when
dealing with the single Sacraments. The same holds
good concerning juridically worthy reception. It must
be remembered that we write on lazv.
§ 2 of our canon forbids the administration of the
Sacraments to heretics and schismatics, even though
they may be in good faith and ask for them. It is
necessary that they first renounce their errors and become
reconciled to the Church.
The penitential canons were rather strict on this sub-
ject.5 Somewhat milder was the later theory as to those
who relapsed into heresy and then repented; these were
not to be denied penance and the Eucharist.8
The rules to be followed are these:
(a) Before the age of fourteen, heretics and schis-
matics must pronounce the profession of faith, but need
not formally abjure heresy, provided, of course, they are
sufficiently instructed in the Catholic faith. After that
age, the profession of faith must be accompanied by
abjuration of heresy or schism, otherwise they cannot
be admitted to the Sacraments.7
(b) It is never permitted to absolve heretics or schis-
matics, even though they may never have thought of
heresy or schism and profess to believe in only one
Christian religion, in which they are ready to live and
Q
4 Lehmkuhl. /. c, II, n. 44 t * C. 4. 6\ V, a.
bC 91. C *4i Q- 1, dictates one tS. O., March 8, 1892 {Coll. P.
year of penance, if administered F., n. 2012).
nrscienter; ten, or seven, or five
jear* if administered scienter.
>Ie
^ ,| ., Original fro m
UNIVERSITY OF WISCONSIN
22 ECCLESIASTICAL THINGS
die.8 Such are merely material non-Catholics, but they
cannot be absolved before making formal abjuration, if
they have completed the fourteenth year of age.
(c) Such material heretics or schismatics may not
be admitted to the Holy Eucharist, and no Catholic priest
can absolve them or permit them to receive the Holy
Eucharist in a schismatical temple.9
(d) Even in danger of death neither absolution nor
the holy Viaticum can be administered to material heretics
or schismatics, for instance, in a hospital, unless there is
a solid presumption that they are members of the Cath-
olic Church, or if they showed signs of willingness to be
reconciled, but always under condition that the danger
of scandal be removed.10
Of apostate Catholics it is required that they abjure
their apostasy, and if they survive, they must make a
written abjuration before the faithful, or at least per-
mit the confessor to make their abjuration known to the
faithful.11
(e) If persons who mix up with the faithful in church
(soldiers, etc.) are suspected of heresy or schism, the
Sacraments may be administered unto them only after
they have given proof that they never had fallen away
from the faith, or after formal abjuration.11
THE THREE SACRAMENTS WHICH CANNOT BE REPEATED
IM
I Can. 732
§ 1. Sacramenta baptismi, confirmationis et ordinis,
quae characterem imprimunt, iterari nequeunt
■
Blbid. US. O., July as. 1630; May 7.
»S. O., Aug. 2%, 1669 {Coll., n. i8jj (Coll., nn. 57, 7?0-
185). 12 S. O., July 3°. 1806 (.Coll., n.
10 S. O., Jan. 13, 1864 (Coll., n. 688).
JJ46).
jle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 732 23
§ 2. Si vero prudens dubium exsistat num revera vel
num validc collata fuerint, sub conditione iterum con-
fcrantur.
The Sacraments of Baptism, Confirmation, and Holy
Orders, which imprint a character, cannot be received
twice — 1. e.t absolutely; — but if a prudent doubt ex-
ists whether they were in fact, or whether they were
validly conferred, they may be repeated.
The general rule is that if the matter and form required
for these three sacraments have been properly applied
by the respective minister, they are supposed and pre-
sumed to have been conferred validly.
As to the intention of the minister, all that is neces-
sary is that he intends to do what the Church does,
no matter what he may personally think or believe about
the Sacraments,13 and that he connects matter and form
in such a way that the form may be referred to the
matter and both constitute a specific act.
With regard to Baptism it is the rule, always insisted
upon by the Roman Congregation, that each single case
must be investigated when Baptism is to be conferred at
all, or conditionally.14 If there is no doubt that Bap-
tism was never conferred, the Sacrament must be ad-
ministered absolutely with the usual form : " Ego te
baptizo" etc. If the validity of a Baptism administered
by non-Catholics is doubtful, the same rule must be fol-
lowed. The rituals of the resp. sect should be ex-
amined and their customs observed, as stated under
mixed marriages. Note that conditional Baptism is
18 Cfr. Decrelum pro Armtnis; to baptize the children of Cath-
S. C. P. F.t June 33, 1830; S. O., olic parents, yet did everything cor-
Jan. 30, i8jj (.Coll. P. F., nn. 814, rectly according to his own rite.
830). The schismatic minister in 1* S. O., Nov. ac, 1878 (Coll., n.
this case, out of hatred for tht 1504).
Catholic Church, had no intention
.'le
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
34
ECCLESIASTICAL THINGS
■
more easily admissible if no marriage is involved. For
here the rule baptismus est validus in ordine ad matri-
monium does not hold good. Therefore the golden
mean must be observed: not too lenient and not too
strict.15 As to the testimonies in favor of the fact or
validity of Baptism, see can. 779.
Indiscriminate rebaptizing of non-Catholics is not
founded on the law," though it may perhaps be called a
safe theory, especially in our country, where there are
so many sects which have discarded the doctrine that
Baptism is necessary for salvation. But this holds good
only in cases where no marriage is involved,
It is noteworthy that our Code has no ruling as to ir-
regularity being incurred by rebaptizing. Hence this ir-
regularity may now be regarded as abolished.
Concerning Confirmation there is not so much neces-
sity or temptation for useless repetition. There are
some decisions on this point, which, however, all concern
schismatic confirmation. This is intelligible, because
most heretical sects have thrown this Sacrament over-
board. The general tenor of all the decisions in casu is
that persons once confirmed by schismatic priests are not
to be reconfirmed, unless they intend to receive tonsure
and holy orders, or if they themselves or their parents
ask for it, in which case Confirmation must be admin-
istered secretly and conditionally.17 One decision, how-
is S. C. P. F., June aj, 1830
(Coll., n. 814).
16 The instruction just quoted
mentions Calvinists, Presbyterians,
and Anglican*, and apparently fa-
vors the validity of Calvinistic
Baptism over that of the Anglicans
and Presbyterians, who may there-
fore be more readily rcbaptized.
If S. 0-, July j, 1853 <Coll. P. F.,
n. togs). This decision enjoins
bishops to inquire whence the con-
verts hail; if from THilgaria, Cyprus,
the Maronites of Mount Lebanon,
Italy or the adjoining inlands, abso-
lute Confirmation is required: if from
WalachiA. Moldavia, or Asia, acquie-
scent.— Cfr. also S. O.. March 16.
1872; April 2. 1879; January Mi
1885 (Coll., nn. 1381, 1315, 1630).
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 723 25
a
ever, says that if Baptism was repeated conditionally,
Confirmation should also be administered conditionally,
to clergymen as well as laymen. The reason is, not that
Confirmation is absolutely necessary, necessitate medii,
but because the unconfirmed suffer a loss of perfection ;
-
although they would not be damned, unless perhaps by
reason of contempt.18
As to Holy Orders, nothing need be said here, except
that matter and form must be properly employed lest
scruples arise and cases be proposed to the Holy Office, as
we read of several.18 The intention may be defective in
the ordinandus. This happened in a certain seminarian,
who had positively made up his mind not to be ordained,
though he permitted the ceremonies to be performed
over him. He had to be reordained privately and se-
cretly.
RITES TO BE OBSERVED
-
Can. 733
p
§ i. In Sacrament is connciendis, administrandis ac
suscipiendis accurate serventur ritus et caeremoniae
quae in libris ritualibus ab Ecclesia probatis praeci-
piuntur.
§ 2. Unusquisque autem ritum suum sequatur, salvo
praescripto can. 851, § 2, 866.
In the celebration, administration, and reception of
the Sacraments, the rites and ceremonies prescribed in
the liturgical books approved by the Church must be
accurately observed, and every one must follow his own
rite, with due regard to canons 851, § 2, and 866.
IBS. O., June 20, 1866, ad Gallas, July 6, 1898 {Coll., nn. 1611, 1988,
o. 40 (Coll., n. 1293). J008) ; sec can. 1007.
IBS. O., Sept. 7, 189*; Jan. 14,
oogle
i*~^ ^ v .J,., Original fro ni
UNIVERSITY OF WISCONSIN
26 ECCLESIASTICAL THINGS
Conficere sacratnentum means to effect or produce a
Sacrament, to cause it to exist. As Christ our Lord is
the efficient cause of the Sacraments, the word here
signifies to produce a sacrament instrumentally, and is
applied in its proper sense to the Holy Eucharist alone,
because all the other Sacraments are effected or pro-
duced when administered. What reception means re-
quires no explanation.80
Rites are the prayers which must be observed in the
celebration of Mass and the administration of the Sacra-
ments, or the formulas to be used according to the pre-
scribed rule. Ceremonies are the gestures, acts, or bod-
ily movements and signs which accompany the prescribed
prayers, or the things over or with which the words are
pronounced, such as blessings, lights, incense, vestments,
and so forth.
The rites and ceremonies prescribed by the Church
must be so observed that nothing is taken, or omitted from,
or added to them. For they were introduced into the
Church in order that the external worship of God might
be performed with due reverence, that the sublime mys-
teries should appear more venerable, and that the faith-
ful might be edified and their devotion enhanced.21 This,
however, does not mean that common sense or lawful
custom 22 must be set aside. All that is necessary is that
the essentials be strictly observed. On the other hand,
uniformity of ceremonies — also among Regulars — is
certainly an edifying spectacle. This is easily brought
20 Tri<?,. seas. 312, dt mxssae sa- ted a stoic to be worn while preach-
trifu c. 5: S. C. P. F,, June 30, ing, if "custom permits." Some-
18.10 (Coll.. n. 817): Van der Slap- times futile doubts are proposed,
pen, Sacra Litvrgia, 1898, t. 1, p. 3. especially to the S. Hit. C, whence
21S. C. P. F., June 30, 1830 the famous answer that the S.
(/. ft). Congregation was not established
22 Thus the S. Rit. C. Sept a6, for the purpose of fostering scm-
1868 (Dec. A*th„ n. 3185) permit- pics.
^ fcrt|rt Original from
UNIVERSITY OF WISCONSIN
jle
CANON 733 27
about if all use and follow the liturgical books approved
by the Church. These books, for the Latin Rite, are:
(1) the Missal, which contains the rubrics for the proper
celebration of Holy Mass; (2) the Roman Ritual, which
contains the rites and prayers to be observed in the ad-
ministration of the Sacraments and at other ecclesiastical
functions; and (3) the Roman Pontifical, which contains
the rites and prayers for episcopal functions. To the
Latin Rite also belong the Ambrosian Liturgy, which is
observed in some churches of the archdiocese of Milan,
and the Mozarabic Liturgy, now observed only in one
chapel of the Metropolitan Church of Toledo.23
§ 2 of canon 733 enacts that each one must follozu his
own rite. That the Roman Pontiffs were anxious to
preserve the various rites is evident from the variety of
Oriental liturgies. A variety of rites is not incompatible
with unity of faith, nay it sheds new lustre and majesty
upon the Church and proves her readiness to admit rea-
sonable customs. The main Oriental Liturgies are :
(1) The Greek, based on the so-called liturgies of
SS. Basil and John Chrysostom. It has two branches : the
pure Greek, used at Athens and Constantinople and by
Italian Greeks ; the Greek Rumenian, the Greek Ruthen-
ian, the Greek Bulgarian, and the Melchite, which latter
is employed by the Patriarch of Antioch and his suf-
fragans.
(2) The Syrian, which is the Syrian translation of the
Antiochcne and is used by the Syrian Patriarch of Anti-
och and his suffragans, by the Syro-Chaldzean Patriarch
of Babylon and his suffragans, by the Syro-Maronite
Patriarch of Antioch, and the adherents of the Malabar
or Syro-Sorian Rite.
28 Van der S tap pen, /. c, p. ao f.
>Ic
Original fro ni
UNIVERSITY OF WISCONSIN
28 ECCLESIASTICAL THINGS
(3) The Armenian, chiefly borrowed from the Greek
and in use among the Armenians of Ciliciaf Alexandria,
Artum in Russia, and Lemberg in Galicia.
(4) The Coptic, which is in vogue in Egypt (Coptic-
Egyptian) and Abyssinia (Coptic-Ethiopian).24
Some decisions may here find a place. If children of
both rites are to be baptised in the same church, the Greek
priest may validly baptize his subjects with water blessed
according to the Greek rite, nor is he to be molested if
he does not use water blessed according to the Latin rite.
But the Ordinaries should see to it that baptismal water
is kept in all churches blessed according to the Latin
rite, and the Latin priests must use this water when
baptizing their subjects, except in case of necessity."
An Armenian or a Maronite priest may distribute Holy
Communion which has been consecrated in unleavened
bread, but he must use the language and ceremonies of
his own (Armenian or Maronite) rite.28 (Cfr. also
can. 866.)
Priests of the Oriental Rite must make use of their
own formulas and language in absolving faithful of the
Latin Rite."
the holy oils
Can. 734
§ 1. Sacra olea quae quibusdam Sacramentis admi-
nistrandis inserviunt, debent esse ab Episcopo bene-
dicta feria V in Coena Domini proxime superior©;
neque adhibeantur vetera, nisi necessitas urgeat.
2* Van dcr Stamper, /. c, I, 18 f. 21 S. 0-, Sept. 6, 1865 (Co/J., n.
25 Benedict XTV. " Etsi patio- 1275). The form of the Greek Rite
talis," May 26, 1742, S 11, n. VI. 11 either tlie subjunctive or the
20 S. C T\ F., April 30, 1B66 optative (forma deprtcatoria) , but
{Coll., n. 128B): cfr. can. 851. 9 2. ncv-r the indicative mood.
^ k ,1,., Original from
UNIVERSITY OF WISCONSIN
.'le
-'
■
pi
CANONS 734-735 29
§ 2. Mox deficienti oleo benedicto aliud oleum de
olivis non benedictum adiiciatur, ctiam iterato, minore
tamcn copia.
Can. 735
Parochus olca sacra a suo Ordinario peterc debet
ct in ecclesia in tuta ac decenti custodia sub clavi dili-
gentcr asservare ; nee ea domi retineat, nisi propter
necessitatem aliamve rationabilem causam, accedente
Ordinarii licentia
The Holy Oils to be used in the administration of the
Sacraments of Baptism, Confirmation, Extreme Unction,
and Holy Orders, must be blessed by the bishop on Holy
Thursday of each year, and old ones may not be used
except in case of urgent necessity. Should the blessed
oil be about to give out, other olive oil that is not blessed
may be added, even repeatedly, but in smaller quantities
than the holy oil.
Each pastor must ask his Ordinary for the holy oils
and keep them in a safe and becoming place under lock
and key in church. He may not keep them in his house
except in case of necessity, or for some other plausible
reason, and only by special consent of the Ordinary.
The custom of reneiving the holy oils and chrism is
ancient, even if we prescind from the spurious document
which Gratian M (or rather Pseudo-Isidore) ascribes to
Pope Fabian (236-250). The text of our canon is taken
from the Roman Pontifical and Ritual. Cases in which
the use of old oils is permitted, according to Benedict
XIV, are: if there be no Catholic bishop near at hand,
because priests are not allowed to receive the holy oils
from a schismatic bishop; if the distance be so great
wC. 18, DiK. 3. &< cons.; cfr. c. 12, X, III, I.
.'Ie
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
■
30 ECCLESIASTICAL THINGS
that the oils can not arrive in time; or if there be any
other impediment.29 As to distance, one decision de-
clares that a month's waiting would be sufficient80 This
may happen in turbulent times, or when a serious strike
interrupts communication. In future no special indult ai
is required for using the old oils if the case of necessity
is verified. The law itself grants the right.
The renewal of the holy oils must be understood of
the blessing, not of the oils themselves, as if the oils
would have to be of the same year in which the blessing
is given. It is the mystery that is to be renewed, not
the oil.32 Should it happen that a priest has not received
the holy oils and must administer Baptism, he may use the
old oils; he must not omit the anointment in order to
supply that ceremony later with the oils recently re-
ceived.33
§ 2 of can. 734 is plain enough. The addition of un-
blessed olive oil is permitted only in case of necessity.
It is not permitted to bless part of the oil on Holy Thurs-
day and mix this with unblessed oil immediately after.84
The mixture should not exceed the proportion of 3:2,
i. c, only one-third of common olive oil may be added.
Can. 735 rules that the pastors must obtain the Holy
Oils from their own Ordinary. This is an acknowledg-
ment of the Ordinary's jurisdiction and their own de-
pendence and shows the organization of the diocese.
The old canons " already insisted upon this rule. Bene-
dict XIV enjoined the Greek priests to receive the Holy
29" Anno vertente," June 19, 22, 186a, ad V (Dec. Anth., n.
175". 5 5- J»H).
ao S. C. P. F., July s. 1841 (Coll., R9 S. Rit. C. Sept. 33, 1837
n. 924)- (Dec. Anth., n. ^773).
ai S. C P. F„ Sept. 27, 1835 a« S. Rit. C, Dec. 7. 1844 {Dec.
(Coll.. n. 840) mentions an indult. Auth.. n. j88j).
32 S. C. P. F., Aug. 13. 1669 as C. 122. Dial. 4. de cons.
{Coll., n. 183); S. Rit. C, March
jle
, ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 736 31
a
Oils from their own, not from a schismatic, bishop, or
from the Latin Ordinary under whose jurisdiction they
are placed."
As to the keeping of the Holy Oils, in our country the
custom of keeping them in the rectory is rather widespread.
It is safe to assert, however, that the S. Cong, of Rites
would not approve of this custom, except where there are
special reasons for it. Such a reason would be great
distance between church and parsonage." But the mere
fact that the church is separated from the rectory has
never been acknowledged as a sufficient reason.88 The
custom, however, is not formally reprobated in our text.
If the Holy Oils are kept in the house, it goes without
saying that a decent and becoming place must be set
aside for the purpose."
in
■
NO UNLAWFUL EXACTIONS PERMITTED
.
Can. 736
Pro administratione Sacramentorum minister, nihil
quavis de causa vel occasione sive directe sivc indirecte
exigat aut petat, praeter oblationes de quibus in can.
I I507» § 1.
What is here stated must be taken in the light of what
has been said concerning simony, and be compared with
can. 1507* § h which provides that the stole fees should
be regulated by a provincial council or meeting of the
bishops, whose enactments are to be submitted to the
Holy See. Besides the fees thus established, says the
present canon, the minister of a Sacrament is not allowed
8« ** Etsi fajtoralit," May 36, SB S. Rit C, June jj, 169a (Die.
1743, 3 IV- Auth., n. 3779) and passim.
8?S. Rit CH Dec. 16, 1826 (D«. 89 S. Rit C, Dec. 16, 1826 (Dtc.
Auth., n. 2650). Auth., m. 2650).
jle
j , Original from
UNIVERSITY OF WISCONSIN
32 ECCLESIASTICAL THINGS
to charge or demand anything, for whatever motive or
on whatsoever occasion, either directly by exaction, or
indirectly by insinuation, for the administration of a
Sacrament.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
TITLE I
BAPTISM
Can. 737
§ x. Baptismus, Sacramento rum ianua ac funda-
mentum, omnibus in re vel saltern in voto necessarius
ad salutcm, valide non confertur, nisi per ablutioncm
aquae verae et naturalis cum praescripta verborum,
forma.
§ a. Cum ministratur servatis omnibus ritibus et
caeremoniis quae in ritualibus libris praecipiuntur, ap-
pellatur sollemnis; sec us, non sollemnis seu privatus.
Baptism is called the gate to, and the foundation of,
the other Sacraments, because without it no other Sacra-
ment can be validly received. The Church has ever
taught that Baptism is absolutely necessary for salvation,
— either really or by desire1 — and that consequently no
other sacrament can be validly received without it. Thus
ordination would be invalid and imprint no indelible
character if the ordinandus had not been baptized.9 This
necessity of Baptism is called necessitas medii, necessity of
means, because without it salvation cannot be obtained.
The reason for this absolute necessity 3 lies in the words
of Our Lord, John III, 5. Either in re or in voto signi-
fies that the baptismus Huminis or flaminis or sanguinis is
sufficient.
lC. j, C. 15. q. 1; cfr. Dist 4, t" Lomentatrili," July 4. »9°7.
de corns. P*°P dam*., n. 41.
sCc. 1, 3. X, HI, 4*
33
oogle
v ^|y> Original fro ni
UNIVERSITY OF WISCONSIN
34 ECCLESIASTICAL THINGS
Baptism is validly conferred, the text further says, by
ablution with true and natural water combined with the
prescribed form of words. Here matter and form are
clearly stated. The matter is true and natural water.*
Water is true if no doubt exists as to its aqueous quality.
-
A very thin liquor, the sap of trees, water made of rose
leaves, etc., would be dubious. Natural water is that
taken from wells, cisterns, ponds, rivers, or gained from
ice, snow, drizzle, also mineral water.5 Water mixed
with ingredients that change its nature cannot be validly
used.* A mixture of one part of chloride of mercury with
two parts of natural water may be validly, and, in case
of necessity, especially to spare a mother pains, licitly
employed.1
The water must be applied in the form of an ablution,
which is called the proximate matter. This is done either
by pouring the water over the head or forehead of the
one to be baptized, or by immersing him in the water
(pond or river), or by sprinkling (aspersio) his head.
In the Catholic Church pouring (infusio) is more com-
mon, at least in our country, although immersion and
aspersion, too, are perfectly legitimate.8 The water must
touch the skin, not the hair only, of the head. If the
head cannot be reached, some other principal part of the
body, — chest, neck, hand or arm, — must be touched. In
case of extreme necessity a wet sponge or rag may be
used.9
The essential thing in the application of the matter is
4Dccretum fro Armtn. (Den- T S. O., Aug. ai, 1901 {Coll., n.
singer, n. 591); RH. Rom., tit. II, mi),
c. i, n. 3. * Ril. Rom., I. c. n. 10.
BCfr. Lehmkuhl, /. *., II, n. 58 f. » S. O., Nov. 8, 1770; July 9.
«S. O., Nov. 8, 1770; July 9, l?79 (.Coll, nn. 480, 536): to apply
1779 (Coll., nn. 480, 536). the water in the form of a driok
render! baptism invalid; ibid.
►ogle
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 73? 35
that the ablution is verified and signified. This may be
done with a greater or lesser quantity of water, though
one drop could hardly be said to express ablution.
The form of baptism is : "I baptize thee in the name
of the Father, and of the Son, and of the Holy Ghost."
These words must be pronounced simultaneously with
the application of the water, without repetition or mutila-
tion,10 in the present tense indicative, though the impera-
tive form is also valid; for instance, " Baptisetur" or
" Baptizare talis" or " Baptizet manus mea in nomine''
etc. But to use the perfect tense in order to signify a
present action (" Baptizatus est talis") would render the
ceremony invalid, unless the minister would not be aware
of using the wrong tense, or if the language of the re-
spective nation would permit the use of the perfect tense
to signify a present action.11 Mere slips of the tongue
do not render the formula invalid. The forms : " I
will administer unto thee the sacrament of baptism of
sins in the name, etc.," 12 has been declared invalid. Also
the form : " Ego te lavo nomine Patris, et Primogeniti,
et Spiritus Sancti." The form: "Ego te lavo in
nomine Patris, et Filii et Spiritus Sancti" M on the con-
trary, is valid, as is also the form which substitutes for
"Spiritus Sancti" "Spiritus boni" or " sacri." *•
§ 2 defines solemn and private or non-solemn Baptism.
The former is administered with all the rites and cere-
monies prescribed in the liturgical books. Where these
are not employed, the Baptism is called private. The
essential form remains the same, but there is a difference
in Prop. dam. ob Alex. VIII, 13 S. O., Feb. 17, 1897 (Coll., n.
Dec. 7, 1690. n. 27 (Dcnz., n. 1184). »959>-
llS. O., Sept. 8, 1633; S. C P. 14 S. O., April 30, 1904 (Coll., n.
F-, March 27, 1631 (Coll., tin. 74, 2191); for Japanese forms, see Coll.,
68). q. 1333.
12 S. 0., June 33, 1840 (Coll., n.
901).
ogle
£ " -» v J„ Original fro ni
UNIVERSITY OF WISCONSIN
36 ECCLESIASTICAL THINGS
in the matter, in as much as for solemn baptism water
especially blessed either on Holy Saturday or the Satur-
day preceding Whitsunday must be used.
Note that if a baptismal font can be kept neither in
church nor in a private house, and no baptismal water
can be gotten, natural water must be used rather than
holy water.16 Should the baptismal water have become
putrid, natural (not holy) water should be used, although
Baptism conferred with putrid water would be valid.1*
nS. O., April 6, 1741; S. C. P. 10 S. O., April 17, 1839 (.Coll., a.
F., April 17, 1758 {Coll., im. 32s, 885).
41O.
■■dbyC- jle
I , Original from
UNIVERSITY OF WISCONSIN
CHAPTER I
T
THE MINISTER OF BAPTISM
the ordinary minister
Can. 738
§ 1. Minister or dinar ius baptism i sollemnis est sa-
cerdos; sed eius collatio reservatur parocho vel alii
sacerdoti do eiusdem parochi vel Ordinarii loci licen-
tia, quae in casu necessitatis legitime praesumitur.
§ 2. Etiam peregrinus a parocho proprio in sua pa-
roecia sollemniter baptizetur, si id facile et sine mora
fieri potest; secus peregrinum quilibet parochus in
suo territorio potest sollemniter baptizare.
Can. 739
In alieno territorio neniini licet, sine debita licentia,
baptismum sollemnem conferre ne sui quidem loci
incolis.
Can. 740
a
Ubi paroeciae aut quasi-paroeciae nondum sunt con-
stitutae, statutorum peculiarium et receptarum consue-
tudinum ratio habenda est, ut constet cuinam sacer-
doti, praeter Ordinarium, in universo territorio vel in
eius parte ius insit baptizandi.
a
These three canons treat of the ordinary minister of
the Sacrament of Baptism. He is, can. 738 says, the
37
►ogle
£ * ^ v J„ Original fro m
UNIVERSITY OF WISCONSIN
38 ECCLESIASTICAL THINGS
priest, with regard to solemn Baptism. The reason is
that by virtue of ordination the priest has received the
power to confer this Sacrament.
But, continues the text, the right of baptizing is re-
served to the pastor or another priest commissioned
either by him or by the local Ordinary. In a case where
the canons of a cathedral church had obtained from their
Ordinary permission to baptize, the custom was de-
clared legitimate, provided the stole fees were turned
over to the Archpriest.1 The Vicar-General may baptize
without the consent of his Ordinary, provided the latter
has not limited that power.2 The Roman Congregations
have insisted that Ordinaries should but rarely and only
for urgent reasons give permission to priests who are
not pastors to baptize,0 because this is a strictly parochial
right. Yet our canon says that in case of necessity per-
mission may be lawfully presumed. A case of necessity
— not convenience or friendship or relationship — would
exist if a child were ill, if the priest visited a mission only
at long intervals, if the distance from the parish house
amounted to several miles, etc. But attention must be
drawn to can. 463, § 3, concerning the duty of refunding
the stole fee.
§ 2 concerns the case of peregrini, i. e., persons who
reside outside their own domicile or quasi-domicile, with-
out, however, having given it up.* Such a person should
be solemnly baptized by his own pastor in his own parish,
if it can be easily and conveniently done ; if not, any
other pastor may solemnly baptize such a peregrinus in
his own parochial district. If the peregrinus is a baby.
lS. Rit. C, May 9, 1606 {Dec. sS. C. C, Sept 27. '687: Feb.
Auth., d. jij). a». '888; S. C. EE. et RR., Aug. II,
aS. Rit. G, April x6, 1639 {Dee. 1580; Dec. 14, 1604.
Autk, n. 672). 4C*n- 9>-
oogle
Y ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 73&-740 39
■
the domicile or quasi-domicile of the father, or in case of
an illegitimate or a posthumous child, that of the mother
is decisive.6 Hence a child born outside the parish in
which his father or mother have their domicile or quasi-
domicile, should be brought to the pastor of the father's
or mother's parish, but only in case it can be done easily
and without delay. Easily may be taken to mean without
expense or conveniently. A distance of three leagues, or
about thirteen miles, some • say, would excuse. How-
ever, now-a-days an automobile may easily be had, and
travels smoothly, at least over good roads. The physical
condition of the child, too, must be considered. Sine
mora, without delay, must be understood according to
can. 770, which says : quam primum, as soon as possible.
Can. 739 rules that neither the pastor nor another
priest may solemnly baptize, even his own parishioners
or subjects, in a district not his own, unless he has ob-
tained proper permission. To do so would be setting
aside all local organization. Of course the Ordinary and
his vicar general may baptize anywhere in the diocese,
but if he wishes to baptize one living outside his diocese,
he needs the permission of the respective local Ordinary.
This permission is required also when one of his diocesan
subjects gives birth to a child in another diocese. The
same rule applies to pastors and other priests who, when
outside their own district, are asked to baptize one be-
longing to that district by reason of domicile or quasi-
domicile. /
Can. 740 provides for parishes or quasi- parishes not
yet established. In such cases special statutes and pre-
vailing customs must be observed, in order to make sure
which priest, besides the Ordinary, is entitled to baptize
either in the whole territory or in a particular district
• Can. 90, I 1. ■ Lcbmkuhl, I. c, II, n. 66.
►ogle
£ ~ ^ ^ %\s* Original fro rn
UNIVERSITY OF WISCONSIN
40 ECCLESIASTICAL THINGS
St
thereof. We could find no diocesan regulations T on
this head by either the Baltimore Councils or any other
American council or synod. The text is plain enough,
alluding as it does to can. 216 on the establishment of
regular parishes or quasi-parishes ; where there are no
diocesan statutes regulating the matter, custom must be
followed, and the custom is that the sacerdos excurrens
baptizes the children of his station or mission and is
entitled to the fees.
But what about linguistically distinguished parishes?
If the children belong to parents who are members of a,
say German or Italian parish, there is no doubt as to
the right of the pastor of that parish to baptize them.
But there are doubtful cases, such as this: A couple
moves into a parish, and before they have decided what
parish to join, a baby is born to them. The Italian pastor
is asked to baptize the child, because the mother is an
Italian and would rather belong to the Italian congrega-
tion, whereas the father, though also of Italian descent,
cares for no parish at all. In that case, we believe, the
Italian pastor would be entitled to baptize the child and
keep the fee. The pastor of the English speaking con-
gregation could not claim the mother, nor could he insist
upon territorial rights, because we suppose that the Italian
parish lies within the limits of the English speaking con-
gregation. But suppose an Italian mother comes to the
pastor of a German speaking congregation, which is
within the boundaries of an English speaking congrega-
tion, and begs the German pastor to baptize her child,
either because he speaks Italian or is personally known
to the family. Is the German pastor bound to refuse her
request? We hardly think so, because, by reason of the
7 At least the Colltctio Lacensis. which wc perused, teenm to contain
no such regulation!.
G| Original from
OOglt UNIVERSITY OF WISCONSIN
■
pi
CANONS 741-742 41
territory or parochial district, he may claim as much right
as the English pastor, and as far as pastoral rights go,
he is as much entitled to perform the ceremony as the
English pastor. However, if an Italian congregation is
near, the English as well as the German pastor should
tell the woman to go to the Italian pastor.
What about a convert who has been instructed by the
pastor of a German congregation? He is an American
of other than German ancestry, while his wife belongs
to the German nationality. Or perhaps he is not yet
married. In both cases we believe that, in justice, the
pastor who instructed the convert is also entitled to bap-
tize him, no matter whether he has a wife of German
descent or is unmarried, because the pastor of the Eng-
lish speaking congregation cannot claim anyone as his
subject before Baptism. This we say conditionally, i. e.,
provided there are no diocesan regulations or lawful cus-
toms to the contrary.
extraordinary ministers
Can. 741
Extraordinarius baptismi sollemnis minister est dia-
conus ; qui tamen sua potestate ne utatur sine loci Or-
dinarii vel parochi liccntia, iusta de causa concedenda,
quae, ubi necessitas urgeat, legitime praesumitur.
Can. 742
§ 1. Baptismus non sollemnis, de quo in can. 759,
§ if potest a quovis ministrari, servata debita materia,
forma et intentions; quatenus vero fieri potest, adhi-
beantur duo testes, vel saltern unus, quibus baptismi
collatio probari possit.
jle
Original from
UNIVERSITY OF WISCONSIN
■
'■-.
42 ECCLESIASTICAL THINGS
§ 2. Si tamen adsit sacerdos, diacono praeferatur,
diaconus subdiacono, clericus laico et vir feminae, nisi
pudoris gratia deceat feminam potius quam virum bap-
tizare, vel nisi fcmina novcrit melius fonnam et mo-
dum baptizandi.
§ 3. Patri aut matri suam prolem baptizare non licet,
praeterquam in mortis periculo, quando alius praesto
non est, qui baptizet.
The deacon is the extraordinary minister of solemn
baptism, but he should not use this power without the
permission of the local Ordinary or pastor, to be granted
for a just reason ; in case of necessity this permission may
be lawfully presumed.
Hence a deacon, by virtue of his ordination,8 may em-
ploy all the ceremonies and rites prescribed for the ad-
ministration of Baptism by the Roman Ritual. How-
ever, as ecclesiastical legislation* has reserved this right
to the pastor, the deacon is not the ordinary minister of
the Sacrament of Baptism, but needs the permission of
the Ordinary in whose diocese, or of the pastor in whose
parish, he wishes to baptize. In case of necessity this
permission need not be asked for. A case in point
occurs in the Decree of Gratian,10 where the " necessity "
arose through absence of, or long distance from, the
bishop or priest. The reasons mentioned in can. 738
would also be sufficient.
Can. 742, § 1, rules that, in case of danger of death,
private baptism may be administered by anyone, provided
he or she uses the proper matter and form and has the
BPonlif. Rom., " De ordinationt o C. 13, Dist. 931 c. 19, Dirt. 4*
diaeoni:" " Oportet ergo diaconum de eons.
. . . battirarc." with a reference to 10 Ibid.
Acts VIII, is.
►ogle
/ - ^ wil,* Original from
UNIVERSITY OF WISCONSIN
CANON 742 43
Q
right intention. Wherever possible, two witnesses should
be called, or at least one, to testify to the act
The first part of this paragraph embodies an article of
faith,11 and consequently binds the Greek as well as the
Latin Church."
The rite to be observed in administering Baptism pri-
vately consists in pouring natural water (not blessed)
over the head of the subject, simultaneously pronounc-
ing the words : " I baptize thee in the name of the
Father, and of the Son, and of the Holy Ghost." The
intention must be to " do what the Church does," no
matter what one may believe about the Church. A super-
lit
stitious intent or purpose does not necessarily exclude
the right intention. ,s In the way described anyone may
baptize, but only in case of necessity, or danger of death,
as can. 759, § I, explains. The phrase " danger of death n
may be taken in a pretty wide sense, for several decisions
of the Roman Court have approved the custom of bap-
tizing privately if the missionary is absent for more than
eight days,14 or if there is danger that a baby may be
smothered because placed in the same bed with his
parents.15
§ 2 determines the order of precedence to be followed
according to the Roman Ritual.1* If a priest is present,
he should be preferred to a deacon ; a deacon to a sub-
deacon ; a clergyman to a layman ; a man to a woman
(unless decency would demand preference for the woman
or unless the woman knows the form and manner of
baptizing better than the man).
11 Trul.. Se«a 7, can. 4, dt bapt. child in order to avoid future preg-
11 Benedict XIV, " Nuper ad nancy.
nos." March 16, 1743. I 6= Form* 14 S. C. P. P., Jan. 16, 1804;
Prefessionit Maronitis praescripia. Sept. II, 1841 {Coll., nn. 674, 939).
18 S. O., Sept. 19. 1671 (Coll. 10 S. C P. F.t Jan. M, 1788
P. F., n. aoi). A mother wm told (Coll., n. 503).
by another woman to baptize her 11 Tit. II, c. I, n. 13.
adbyC *Ic
p
J ^ Original from
UNIVERSITY OF WISCONSIN
■
44* ECCLESIASTICAL THINGS
A suspended or interdicted priest may never baptize
solemnly, but only privately.17 But since the question
here turns about private baptism, even a suspended priest
would have to be preferred to a deacon, etc. Schismatic
monks may privately baptize only when there is no Cath-
olic person at hand.18
§ 3 provides that father or mother are not allowed to
baptise their oivn child except there be case of danger of
dea-th and no one else is at hand who could baptize (qui
baptiset), i. e., who is capable and willing to baptize.
Incapable would be, e. g., a bigotted Baptist who does
not believe in infant baptism and, moreover, flatly refuses
to perform the ceremony.
Can. 743
Curet parochus ut Edeles, praesertim obstetrices,
medici et chirurgi, rectum baptizandi modum pro casu
necessitatis probe ediscant.
The pastor shall take care that the faithful, especially
midwives, physicians, and surgeons, are thoroughly in-
structed in the manner of administering Baptism in
cases of emergency.10 For this purpose some special lec-
tures would be helpful. The subject may also be men-
tioned at retreats.
baptism of adults
Can. 744
Adultorum baptismus, ubi commode fieri possit, ad
loci Ordinarium deferatur, ut, si voluerit, ab eo vel ab
eius delegato sollemnius conferatur.
IT S. C. P. F., Jan. ai, 1789 »° S. C. P. F., Sept. 11, 1841
{Coll, n. 598). (.Coll., n. 939)- especially intelli-
18 S. O., Aug. 20, 1671 (Coll., n. gent laymen and catecoists.
198).
jle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 744 45
When adults are to be baptized, the local Ordinary
should be notified, if it can be done conveniently, in order
that, if he so desires, he himself or a priest delegated by
him may administer the Sacrament more solemnly. No
strict obligation can be read into this canon, as is evi-
dent from the term deferatur as well as from the sub-
junctive form employed.
G I Original from
008IL UNIVERSITY QFWI5C0NSIN
■
"-.
CHAPTER II
the subject of baptism
Can. 745
§ i. Subiectum capaz baptismi est omnis et solus
homo viator, nondum baptizatus.
§ 2. Cum agitur de baptismo:
i. Parvulonim seu inf annum nomine veniunt, ad
normam can. 88, § 3, qui nondum rationis usum adepti
sunt, eisdemque accensentur amentes ab infantia, in
qua vis aetate constituti;
2.0 Adulti autcm censentur, qui rationis usu fruun-
tur, idque satis est ut suo quisque animi motu baptis-
mum petat et ad ilium admittatur.
Three conditions are required for the valid reception
of Baptism: the subject must be a human being living
and in the wayfaring state, and not previously baptized
(nondum baptizatus). If these three conditions are veri-
fied, it matters nothing whether the subject be male or
female, white, black or red, young or old, rich or poor,
high or low (omnis homo). The reason is the absolute
necessity of Baptism for wiping away original sin.1 The
limitation expressed in " solus " is based upon the same
doctrine, but has a wider scope, inasmuch as there may
be a doubt concerning deformed or doubtful human crea-
tures, as will be seen in the following.
1 C. 3, Majorei, X, III, 4a; Trid., stss. 5, can. 3, dt pcccalo orig.; test.
7, can. 1a t„ dt baptismo.
46
5 I Original from
sIL UNIVERSITY OF WISCONSIN
CANON 745 47
§ 2 of can. 745 says that with regard to Baptism,
parvuli or infantes (infants) are those who have not yet
attained the use of reason," and also those who have
been insane from infancy, of whatsoever age they may
be; whereas the term adulti (adults) comprises all who
enjoy the use of reason ; which qualification is sufficient
to enable them to ask for Baptism of their own accord
and to be admitted to it. Infancy, as a rule, is com-
pleted after the seventh year has been reached.8 How-
ever this age limit must not be urged with regard to
Baptism. It is no more man a guiding norm which per-
mits presuming the use of reason. If this is attained
earlier the child may be baptized even against the will
of his parents.4 If, on the other hand, the use of reason
has not been attained after the seventh year, the subject
must be treated as an infant. Generally speaking, how-
ever, the use of reason may be presumed after the seventh
year unless certain signs point to its absence or there is
at least room for a solid doubt.
On the same level with infants are those who have
been insane from infancy (see canon 754). Medical
authorities 5 say that insanity is a common condition, but
it has not been satisfactorily denned. It supposes an
appreciable unsoundness of the will, memory, and under-
standing, or of any one or two of these faculties. Where
shall the line be drawn between the weak but responsible
will and the insane will? What degree of opacity be-
tween intellect and cosmos separates the ignorant man
from the lunatic? The extremes of both sanity and in-
sanity are readily recognizable, but the intermediate de-
2 Can. 88. 9 3. 5 Cfr. O'Malley- Walsh, Essays in
8S. 0. Sept. 3. 1877: S. C. P. F., Pastoral Medicine, igii, pp. 106,
March j| 1703 {Coll., an. 1480! 335). 212 ff.
4 Benedict XIV, " Postremo
mense." Feb. 28, 1747, n. 3a.
jle
j , Original from
UNIVERSITY OF WISCONSIN
48 ECCLESIASTICAL THINGS
grees are often hard to perceive. There is no rule that
may be applied to all cases ; each must be diagnosed from
its peculiar symptoms. The symptoms of idiopathic in-
sanity — a phrase which medical men use to conceal their
ignorance of the cause of the disease — are not readily
recognizable unless looked for especially. Besides al-
most any form of mania is likely to recur. We are told
that among a thousand cases of acute mania only one
was observed in which the symptoms did not recur.
These professional statements may give the priest a hint
as to the treatment of such unfortunate patients. Con-
cerning Baptism we shall see under can. 754 an Instruc-
tion of the S. C. Propaganda, which is in keeping
with these statements.
a
Adults is here simply used to designate those who en-
joy the actual and habitual use of reason, without regard
to a fixed age limit. All such persons, if they ask for
Baptism of their own accord, may be baptized, even
against the will of their parents, because the divine does
not depend on the human law.*
p
the wayfaring state
Can. 746
§ 1. Nemo in utero matris clausus baptize tur, donee
probabilis spes sit ut rite editus baptizari possit.
§ a. Si infans caput emiserit et periculum mortis im-
mineat, baptizetur in capite; nee postea, si vivus eva-
serit, est iterum sub conditione baptizandus.
§ 3. Si aliud membrum emiserit, in illo, si periculum
immineat, baptizetur sub conditione; at tunc, si natus
vixerit, est rursus sub conditione baptizandus.
§ 4. Si mater praegnans mortua fuerit, fetus ab iis
fl Benedict XIV, " Pottremo metue," n. 33-
"*» /^ ^Vl,|,» Originalfrorn
-
j by Google
UNIVERSITY OF WISCONSIN
■
p
CANONS 746-748 49
ad quos spectat extractus, si certo vivat, baptizctur ab-
solute ; si dubie, sub conditionc.
§ 5. Fetus, in utero baptizatus, post ortuzn denuo
sub conditione baptizari debet.
Can. 747
Curandum ut omnes fetus abortivi, quovis tempore
editi, si certo vivant, baptizentur absolute; si dubie,
sub conditione.
Can. 748
Monstra et ostenta semper baptizentur saltern sub
conditione; in dubio autem unusne an plures sint ho-
mines, unus absolute baptizctur, ceteri sub conditione.
One essential condition for the administration of Bap-
tism is that the subject be born,7 not only conceived, i. c,
an individual subsisting by itself and no longer enclosed
in the womb. No one enclosed in the maternal womb
can be baptized, as long as there is a probable hope that
he may be properly brought forth and then baptized.
The decisions referred to by Cardinal Gasparri merely
state that a baby, no part of whose body has been brought
forth, and which was conditionally baptized with a
syringe, must be rebaptized conditionally.8 There is no
word about rite editus, but about " reserato materni uteri
ostio" in which case conditional Baptism would have to
be conferred.
§ 2 says that if the infant puts forth his head, he may
Tjohn 3, 5: "nisi qui* rtnatut fans eujui corpusculi nulla para »rf-
fuerit." hue in lucem prodivit, per tiphun-
8 S. C. C, July u, 1797. re- culum piaculari iavacro sub con-
ferred to by S. C. C, March 16, diliont fueril tinetuj, poitquent ille
1897, reads: " Servetur decretum nalus fueril, Baptismus erit tub con-
S. C. Concilii diei 12 Julii 1794, vis: ditione iterandus." (Cfr. Coll. P.
Si reserato materni uteri oitio, in- F., n. 1962).
oogle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
p
50 ECCLESIASTICAL THINGS
be baptized on the head, and shall not be rebaptized con-
ditionally if he survives.
§ 3 provides that if he puts forth some other limb than
the head, he may be conditionally baptized on this limb
if there be danger ; but in that case he must be rebaptized
conditionally if he survives.
According to § 4, if a mother dies in pregnancy, the
fetus, after being extracted by those who are obliged to
perform that act, should be baptized absolutely if cer-
tainly alive, conditionally if there are only doubtful signs
of life.
§ 5 declares that a fetus baptized in the mother's womb
must be rebaptized conditionally after birth.
The last two sections call for some medico-pastoral re-
marks. The duration of pregnancy, from the fertiliza-
tion of t)ie ovum to full-term delivery is 280 days. This
period is divided either into 10 months of twenty-eight
days each — a lunar month — or into nine calendar
months. During the first week the ovum remains in the
Fallopian tube. Having entered the upper part of the
tube and become impregnated, it slowly moves down,
meanwhile beginning a process of repeated division or
cleavage, known as the " segmentation of the ovum''
After the sixth week the name fetus is applied to what
was before called embryo, because after the sixth week
the form is distinctly human. The greatest danger of
miscarriage occurs at three months. In the course of
the fourth month the sex can readily be distinguished.
A fetus born at the termination of the sixth month may
breathe feebly, but will die within a few hours.9 When
does animation take place? At the moment when the
flCrusius, A. M., M. D., Tht Physiology, 8th Am. edit., 1914, p.
Antikamnia Foetotion and Parturi- 747 '•
tion Chart; Kirlce, Handbook of
§le
v ,|,, Original from
UNIVERSITY OF WISCONSIN
CANONS 747-748 51
pronucleus of the spermatozoon fuses with the pronucleus
of the ovum in the Fallopian tube and makes the segmen-
tation nucleus, the soul of the child enters, and person-
ality exists as absolutely as it does after birth.10 This,
as we have said above, happens during the first week of
pregnancy. It may be added that the fact that a fetus
does not breathe is no proof it is dead. It is not unusual
for a full-term child not to breathe for an hour or longer
after birth.11 These are valuable hints for those con-
cerned. Who are they ? After the mother's death, when
the Cesarean section is not only permissible, but re-
quired in order to baptize the child or fetus, a surgeon
is to be called in to perform the operation. He should
not be easily believed if he asserts that the child is dead.
In that case any one else who has the skill and courage
to extract the fetus may be invited, provided it is not
against the law.12 Whether the fetus is certainly alive
can be discovered by diagnosis in the earlier stages of
pregnancy, and by breathing in the later stages, although,
as stated above, non-breathing is not an absolute proof
of death. At any rate, as long as putrefaction has not set
in, conditional baptism is to be administered.
We have deliberately abstained from passing judgment
on the vexed question of the licitness of the Cassarian
section, as § 4 of can. 746 simply takes for granted the
fact of the mother's death, and therefore leaves the con-
troversy in statu quo.11
Can. 74J declares that all abortive human fetuses, if
certainly alive, should be baptized absolutely; if it is
doubtful whether they are alive or dead. Baptism should
be administered conditionally.
10 OMalley-Walah, /. c, p. 3. 1S Cfr. Am, EccL Rev., Vol. 9;
11 Ibid., p. ki. Lebmkuhl, /. c, I, d. 844* &49;
12Lehmkuhl, /. c.t II, a. 75- O'Malley- Walsh, /. c, p. 11.
oogle
f^" ^ -, ,L» Original from
UNIVERSITY OF WISCONSIN
|M
52 ECCLESIASTICAL THINGS
Can. 748 lays down the rule concerning the treatment
of monsters, i. e.f misshaped human terata or products of
erroneous development. Of such there are various kinds.
Some of the autositic monstra show a strong resem-
blance to lower animals, but there is no record that could
claim to be scientific of a hybrid between a human being
and a lower animal. The omphalisitic single monsters
are either dead when born, or die as soon as the placental
circulation is cut off. The composite monsters, or species
of twins, have various types according to the various
combinations of the limbs: double-faced, double-headed,
two-armed, etc."
Such monstra, says the text, should always be baptized,
at least conditionally. When there is doubt whether
there are one or several persons, one must be baptized
absolutely, the others conditionally.
There is no difficulty as to hermaphrodites, because sex
does not affect the validity of Baptism.
Can. 749
Infantes expositi et inventi nisi, re diligenter inve-
stigate de eorum baptismo constet, sub conditione
baptizentur.
Infants that have been abandoned and found should be
baptized conditionally, unless careful research makes it
evident that the Sacrament has already been adminis-
tered to them. One trustworthy witness, man or woman,
especially the baptized subject himself, is sufficient to
give evidence of Baptism having been conferred.18 A
slip of paper appended to the neck of the child is not
14 0,M*JIey-W»l.h. I. c, p. 69 ff. 15, 1734; Benedict XIV. " Postr*mo
IBS. C C. Dec. 18, 1723; Jan. mens*," Feb. j8, 1747, n. 31.
ioi >gle
i*^ ^ ^ ,L, Original from
UNIVERSITY OF WISCONSIN
CANON 750 53
sufficient proof if the writer is unknown or hidden " and
when there is no other evidence, conditional baptism
must be administered.
children of infidels
Can. 750
§ z. Infans infidelium, etiam invitis parentibus, licite
baptizatur, cum in co versatur vitae discrimine, ut pru-
denter praevideatur moriturus, antequam usum ra-
tionis attingat.
§ 2. Extra mortis periculum, dummodo catholicae
eius education! cautum sit, licite baptizatur:
i.° Si pa rentes vel tut ores, aut saltern unus eorum,
consent iant ;
2° Si parentes, idest pater, mater, avus, avia, vel tu-
tores desint, aut ius in eum amiserint, vel illud exer-
cere nullo pacto queant.
The Church has always insisted upon the necessity of
Baptism and the fulfillment of the baptismal vows, which
require an education that is in keeping with the principles
of the Christian religion. On the other hand she wishes
to uphold and recognize the natural rights of parents, and
hence she docs not permit Baptism to be indiscriminately
administered to infants.
§ 1 of our canon repeats what Benedict XIV pointed
a
out so clearly, that the children of infidels may be law-
fully baptized against the will of their parents only when
they are in danger of death. This danger must be such
that there is little or no hope of their surviving to the
age of discretion. Thus a nurse may baptize the dying
child of Hebrew parents, a missionary acting as a physi-
»• S. O., Jan. 3, 17*4 iColl. P. F., 0. 199).
>Ic
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
54 ECCLESIASTICAL THINGS
cian may baptize a child in the same condition.11 If the
illness is so grave that the physician judges the child
will not live, there is sufficient reason for administering
Baptism. On the other hand, the Holy Office has de-
cided that a great mortality among children, — as in China,
where two-thirds die from various causes — does not
warrant the administration of Baptism, unless the chil-
dren can he withdrawn from parental control.18
§ 2 rules that, even when there is no danger of death,
children of infidels may be lawfully baptized, provided
their Catholic education is guaranteed, in the following
two cases :
(i) If the parents or guardians, or at least one of
them, consent to the baptism ; (2) If there are no parents,
i. e.t no father, mother, grandfather, grandmother, or
guardians, or if they have forfeited the right to keep the
child or are unable to exercise that right.
This rule is taken in the main from Benedict XIV's
Constitution, " Postremo mense," of Feb. 20, 1747. It
is based upon the favor fidei, which dictates that the
supernatural right should prevail w over the natural.
Hence if one of the parents consents, Baptism may be
lawfully administered.
The same rule applies to guardians, because the parental
power is supposed to devolve w upon them. However it
is a necessary condition that the children be brought up
in the Catholic religion, and that the hope of Christian
education be well-founded." The Holy Office decided
that the children of the nomadic tribe of the Goayiros
ITS. 0., July 18, 1894 {Colt. P. 10 Benedict XIV, /. c, n. 16.
P., n. 1877). SO Ibid., n. 14.
18 S. O., July 6, 1898; July ax, Ji S. 0., Feb. 13, 1867 (Coll, n.
1840; May 4, 1851; S. C. P. F., Jan. 130a).
13* 1783 (Coil., an, 3007, 90*, 1090,
$58).
.'Ie
% ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 750 55
(Colombia) might be baptized if there were any hope
that they would be instructed in the Catholic religion "
later on, or a well-founded expectation that the parents,
who had expressed the desire of Baptism, would after-
wards receive it."
When Catholic godparents offer a child of infidel
parents for Baptism, the Sacrament can be administered
only if there is a solid hope that he will receive a Chris-
tian education.34 How, if the grandparents give this
promise? These are expressly mentioned under n. 2,
but not under n. I. Benedict XIV vindicated this right
to the grandfather and grandmother if the parents were
unwilling. But we hardly think that the legislator
wishes to extend it to the grandparents when the parents
are opposed to the child's Baptism, else the grandparents
would be mentioned also under n. I. N. 2 obviously
supposes that there are neither parents, nor grandparents,
nor guardians, or else that they have forfeited their
claim to the child. This happens when children are ex-
posed or forsaken by inhuman parents, who by such con-
duct lose their rights. Vagrant or rambling children
should not, as a rule, be baptized without the consent of
their parents.28 The parents' right in the matter is prac-
tically lost when they are unable to claim it, e. g., on
account of insanity, utter destitution " or imprisonment
for life.
MS. O., Sept. 6, 1899 <Coll, n. 24 S. O., Nov. 29. «7*4 (Coll., n.
2068). 457)-
2S S. O.. Dec 11, 1850. n. 4 28 Benedict XIV. I. c.( n. 9 f.
(Coll., n. 1054). 2flS. C P. F.. April 17. 1777
{Coll., n. 5". a. VII, VIII).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
-
Q
56 ECCLESIASTICAL THINGS
CHILDREN OF NON-CATHOLICS
I
Can. 751
Circa baptismum infantium duorum haereticorum
aut schismaticorum, aut duorum catholicorum qui in
apostasiam vel haeresim vel schisma prolapsi sint, ge-
neratim serventur norrnae in superiore canone consti-
tutae.
The same general rules apply to the children of heretics,
schismatics, and fallen-away Catholics, on account of the
danger of perversion and profanation," which is almost
certain if both parents are non-Catholics. Hence if
parents, relatives or friends should offer for Baptism a
child that belongs to heretics, schismatics or apostate
Catholics, the priest must gently but firmly decline to
baptize it, unless he is morally certain that it will be
educated in the Catholic religion,** for instance, in a
Catholic college or academy, or by Catholic relatives.
Concerning the children of apostates the Holy Office has
decided 29 that Baptism may be administered to them only
if there is a well-founded hope that they will be separated
from their unworthy progenitors and entrusted to Catho-
lics, as to which probability the minister must inquire. If
one of the parents is a Catholic and the other a Protest-
ant, the Catholic party must be seriously admonished to
tell the non-Catholic that Baptism was conferred and
the child must be given a Catholic education.80 When
ITS. O, Jan. ai. 1767 (Colt., n. effect, Baptism mar not be admin-
465) : " cum manifesto profanationi* tstered.
periculo." " Jan. a8, 1637 (Coll., n. oo>-
28 S. O. March 6. 1844. Americ. 10 S. 0., Nor. »o. 167a; Nov. 18.
Sept. (Coll., n. 986); Auk- a6, 1885 1745 (Colt., nn. 205, 353): Benedict
{Coll., n. 1643). If the parenti re- XIV, "Inter omnigenai," Feb. 2,
fuie to uiumc any obligation to that 1744-
ile
( * ^ ^ ils* Original fro rn
UNIVERSITY OF WISCONSIN
CANON 752 57
children of non-Catholic parents are baptized at home,
no ceremonies are to be used.81
BAPTISM OF ADULTS
s
Can. 752
§ 1. Adultus, nisi sciens et volens probcque instnic-
tus, ne baptizetur; insuper admonendus ut de peccatis
suis doleat.
§ 2. In mortis autem periculo, si nequeat in praeci-
pes fidei mysteriis diligentius instrui, satis est, ad
baptismum conferendum, ut aliquo modo ostendat se
eisdem assentire serioque promittat se christianae re-
ligionis mandata servaturum.
§ 3- Quod si baptismum ne petere quidem queat, sed
vel antea vel in praesenti statu manifestaverit aliquo
probabili modo intentionem ilium suscipiendi, bapti-
zandus est sub conditione; si deinde convaluerit et
dubium de valore baptism! collati permaneat, sub con-
ditione baptismus rursus conferatur.
Adults who are physically and mentally normal, can-
not be baptized except with their own knowledge and free
will and after having been duly instructed and exhorted
to be sorry for their sins. This law is based upon the
necessity of cooperation in the work of salvation.32 The
Popes have frequently admonished missionaries to in-
struct candidates before Baptism, if need be by native
ministers, and not to admit anyone to this Sacrament un-
less he were well instructed and imbued with Christian
manners." This rule applies to all, including negroes and
81 S. O., Jan. ax, 1767 (Coll.. n. 33 Alexander VII, " Sacrosancti."
465). Jan. 18, 1658; Clement IX, " /•
IzTrid., sets. 6, dt i*stif., c. 6; txctlsa," Sept. 13, 1669; Clement
■eu. 14. de poenit., c. 1. XII, " Comptrtum," Aug. 34,
* I IrVMlIp Original from
.OO^IL UNIVERSITY OF WISCONSIN
58 ECCLESIASTICAL THINGS
other infidels who are capable of embracing the Christian
religion. No one is to be baptized or abandoned after
Baptism has been administered before he knows the truths
necessary for salvation.54 Old people whose memory
is failing may be baptized if they give assurance of their
belief and profess it.85 Savages and nomads may be bap-
tized if their mode of life does not conflict with religion
or morality. Sfl Deaf-mutes may be baptized if they give
some signs of religious knowledge.87 Now-a-days there
are adequate means of instructing these unfortunates, and
conclusive methods of ascertaining a person's religious
training.
Concerning the extent of this instruction, the Roman
Ritual M demands that neophytes " be carefully instructed
in the Christian faith and holy manners." By Christian
faith are to be understood the principal mysteries, i. e.,
those which must be believed necessitate medii, vis.: the
Blessed Trinity and the Incarnation. Express belief in
our Lord Jesus Christ is specifically mentioned in one
decision of the Holy Office.89 The Apostles' Creed,
which is enjoined in an Instruction of the S. C. Prop.
Fide,*0 contains the principal mysteries of the faith. The
Holy Office (/. c.) also urges instruction regarding the
Holy Eucharist, unless the priest deems it better, for a
prudent motive, to postpone this truth till after Baptism.
Furthermore the "Our Father" the effects of Baptism,
and the acts of faith, hope, and charity, are to be incul-
im; "Concredita Nobis," May 3a S. 0., Sept 18. 1850 (Coll., n.
«3r »739i Benedict XIV, "Omnium 1050).
jollicitudinum," Sept. ia, 1744; S. «7 S. 0., Dec. 11, 1850 (.Coll., n.
C. P. F., Sept. ia. 1645 {Coll.. nn. 1054).
«9. 187, 347. *<4>. IB Tit. II, e. 3, n. 1.
14 S. O., March 20, 1686 (Coll., n. 80S. 0., May 10, 1703, »d »!
ajo). Jan. 2$, 1703 (Coll., nn. 256, »$4>.
>tS. O., March 8, 1770, n. a 40 Oct. 18, 1883 (Coll., n. 1606,
(CoU., n. 477). n- XVII).
5 -v
i V.-.L* Originalfrorn
gle
UNIVERSITY OF WISCONSIN
CANON 752 59
a
cated, and an act of contrition, or at least attrition, is
required.41
Concerning Christian morality the aforesaid decision of
the Holy Office insists upon all the divine precepts which,
■
according to the Instruction of the S. C. Prop, mentioned,
are included in the Decalogue. The last-named Instruc-
tion also demands the teaching of the precepts of the
Church." This insistence may cause some embarrass-
ment, especially in cases of polygamy. For if one has
many wives, he must dismiss all but the one with whom
he has contracted a valid marriage. If he married all
at one time, either as wives or concubines, he must dis-
miss all except one, with whom he must contract anew
by renewing the matrimonial consent.48 A girl of Catho-
lic parents who is engaged to a pagan cannot be baptized
unless she is ready to break off the engagement if no dis-
pensation can be obtained.44 Girls not yet betrothed to
pagans may, however, be baptized,45 even though there is
danger that they will marry gentiles.
§ 2 of our canon deals with the Baptism of adults in
danger of death. Such as cannot be carefully instructed
in the principal mysteries of the faith, may be bap-
tized if in any shape or form they show their readi-
ness to assent to the truths of the Catholic religion and
promise to observe its precepts. A noteworthy Instruc-
tion of the Holy Office " says, that adults in danger of
« S. C. P. F., ibid.; S. O., May « S. O., June u, 1769 (Coll., n.
10, 1703, ad 5 (Coll., n. 256). 47a).
42 S. C. P. F.. Oct 18. 1883; an- «S. O., June 20. 1866. ad 10
other instruction, Sept. 12, 1645 (Coll., n. 1293). These rules mutt
(Coll., a. 114) prescribe* that they evidently be applied to concubinage*
be enlightened on idol and devil and other scandalous conduct, until
worship, the cult of ancestors, the signs of repentance are given and a
necessity of restitution, the abuse promise of reform is made.
of opium, and polygamy. « S. O., Aug. 3, i860 (Coll., n.
*8S. O., May 10, 1703, ad t 1198).
(Coll., B. 2S6).
oogle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
60 ECCLESIASTICAL THINGS
death may be baptized if they have faith, repentance, and
the intention of receiving the Sacrament. Faith and re-
pentance alone are necessary for the licit administration
of Baptism, whilst an (at least habitual) intention is
required for its valid administration. Hence, in case
of doubt as to whether a dying person is sufficiently
instructed in the mysteries of the faith, or whether
he has the required attrition, the Sacrament may be ad-
ministered absolutely; but if there is a doubt as to the
intention, Baptism must be given conditionally. Con-
cerning doubts as to sufficient instruction, or faith, or
repentance, or amendment of life, the Holy Office *T has
declared that if the priest is morally certain that the pa-
tient answers his questions only to avoid contradicting his
interrogator, or to please him, Baptism may not licitly be
administered even sub conditions But if the priest is
morally certain of the patient's belief and the seriousness
of his repentance, Baptism must be administered abso-
lutely. In case of prudent doubt, when no time is left for
further instruction, Baptism must be given conditionally.
Signs (e. g. nodding of the head) or a simple "yes"
are sufficient, especially if the patient had expressed a
desire of being baptized before the danger of death super-
vened.48 Old people who have given up the practice of
idolatry and are in danger of death may be licitly bap-
tized, even though their defective memory will not per-
mit of proper instruction.48
From this may be easily understood the rule laid down
in § 3, that if an adult can no longer ask for Baptism,
but has, either previously or in his present state, in some
probable way expressed his intention of receiving Bap-
4T S. O.. May 10. 1703. ad 1 40 S. 0.. Dec. 11. 1850, ad J
(Coll., n. zs6). (Coll., n. 1054).
*« S. O., Sept., 1850; March 8,
1770 (Coll., nn. 1050, 477).
oogle
Original fro m
UNIVERSITY OF WISCONSIN
1
■
pi
CANON 753 61
firm, the Sacrament should be administered conditionally.
If he recovers and there is a doubt as to the validity of
the Baptism conferred, he must be rebaptized condition-
ally, i. e., the minister must use some such words as:
" If thou art capable, i. e.t if sincerely thou wilt be
baptized, I baptize thee in the name, etc."
When baptisms thus conditionally administered are to
be investigated, inquiry must be made regarding the
presence of the right intention, of faith, and attrition.
If all three of these dispositions were wanting, Baptism
must be conferred absolutely; if there is doubt, the sub-
ject must be rebaptized conditionally.'
00
disposition for baptism
Can. 753
§ i. Tarn sacerdotem qui adultos baptizaturus est,
quam ipsos adultos qui sani sint, decet esse ieiunos.
§ 2. Nisi graves urgentesque causae obsint, adultus
baptizatus statim Missae sacriflcio assistat et sacram
communionem percipiat.
It is becoming that a priest who baptizes an adult, as
well as the adult himself, if he be in good physical condi-
tion, should be fasting.51 This condition supposes that
Baptism of adults should, if possible and convenient, be
administered in the morning, as § 2 confirms when it says
that, except when grave and urgent reasons excuse, the
baptized adult should immediately assist at the Holy
Sacrifice of the Mass and receive Communion.62
50 S. 0., Aug. 3, i860; March 30, cui ncophyti intersunt, et SSm. £■*-
1898, ad 3 {Coll., nn. 1198, 1993}. charistiam suscipiunt" But no
" 1 Rii. Rem., tit. II, c. j, nn. 8, grievous obligation can be read info
9. either this text or the Code. Cui-
62 Ibid., tit. II, c. 4, n. 51 torn may dispense from the cbliga-
(Purtet'f ed., 1913, p. 3?) : " $* hora tion here inculcated.
congruens fuerit, celebratur Missa,
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
62 ECCLESIASTICAL THINGS
baptism of insane persons
Can. 754
§ x. Amentes et furiosi ne baptizentur, nisi tales a
nativitate ve! ante adeptum rationis usum fuerint; et
tunc baptizandi sunt ut infantes.
§ 2. Si autem dilucida habeant intervalla, dum men-
tis compotes sunt, baptizentur, si velint.
§ 3. Baptizentur quoque, imminent e periculo mortis,
si, antequam insanirent, suscipiendi baptismi deside-
rium ostenderint.
§ 4. Qui lethargo aut phrenesi laborat, vigilans tan-
turn et volens baptizetur; at si periculum mortis im-
pendeat, servetur praescriptum § 3.
Insane persons and maniacs should not be baptized
unless they have been so afflicted from birth or before
they attained the use of reason, in which case they are
to be baptized like infants.
If they have lucid intervals, they may, if they wish,
be baptized in the course of one of these intervals, i. e.,
while they enjoy the possession of reason.
They may also be baptized when in imminent danger
of death, if they have expressed a desire for Baptism
before they became insane.
Amentes is a general name for every form of insanity,
mild or severe, temporary or permanent. Furiosi, prop-
erly speaking, are such as are frantic or violent, while
amentes may be merely suffering from melancholia.
Originally, of course, mania meant any form of mad-
ness. Then it became gradually limited to those forms of
insanity which differ from melancholia. Now it has
come to mean an acute attack of mental exaltation.6* § 3
63 O'MaUcy-Walsh, /. c, p. 222.
M
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON" 754 63
of our canon embraces all kinds of habitual madness.
The insane, as St. Thomas says,54 must be treated like
infants because they are in the same state of danger.
Therefore, when a physician says there is no hope of
recovery, they must be baptized like children — forma
parvulorvm — provided they were born in this condition
or at least have suffered from the disease since their in-
fancy,55 i. e.t in round figures, before the seventh year of
age, which limit admits of presumption.
Besides amentia proper there may be distinguished dif-
ferent degrees of mental dullness or feebleness, which
may exist in an almost normally developed body. An
adult who is incapable of distinguishing between good and
evil must be treated like an infant, but may be baptized
only in case of danger. When he is in no danger further
development should be awaited, because such persons
often outgrow their mental debility. A weak-minded
adult who is capable of forming moral judgments must
be treated like any normal person. When there is doubt
as to a person's mental condition, the priest may judge
in favor of Baptism.50
§ 2 says that insane adults who enjoy occasional lucid
intervals, may be baptized during one of these, if they
so desire. When in that state of mind they are supposed
to possess will-power. However, too rigid a rule should
not be applied to such unfortunates on account of the
freakish nature of the malady.
§ 3 needs no explanation, except the remark that the
intention of receiving Baptism is supposed to have been
expressed before, and not retracted after melancholia or
mania set in.57
&*Summa Thtol., Ill, q. 68, ft. la Bft Ibid., n. II.
(suppl.). 8' C. 3. X, III, 4*'. Benedict XIV,
B5S. C P. F., April, 1777, ■<* I. " Poxtrimo mense," n. 46.
1 {Coll., n. 53a).
gle
£ * ^ ^ ,|„ Original from
UNIVERSITY OF WISCONSIN
*%
64 ECCLESIASTICAL THINGS
§ 4 mentions two diseases: lethargia and phrenesis.
The former is the sleeping sickness prevalent around
Lake Victoria, in Africa," and elsewhere. It is often
fatal. Phrenesis (phrenitis) is brain fever or wild de-
lirium (frenzy). Persons suffering from these diseases
may be baptized only when they are awake and desire to
receive the Sacrament, except when in danger of death;
then they may be baptized even when not awake, pro-
vided only that they expressed a desire for Baptism be-
fore the attack."
68 It is caused by the Tsetse 67; stirred the medical authorities in our
see Scientific Amtrican Supplement, own country.
Aug. 16, 1913, p. 104 ft*. A similar o» C. 3, X, III, +2; Rit. Ram,,
disease (hook-worm) has lately tit. 1], c. j, nn. 11-13.
G I Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
■
CHAPTER III
rites and ceremonies of baptism
Can. 755
§ i. Baptism us sol lcm niter confer at ur, salvo prae-
scripto can. 759.
§ 2. Loci Ordinarius potest gravi et rationabili de
causa indulgere ut cacrcmoniae praescriptae pro bap-
tismo infantium adhibeantur in baptismo adultorum.
Baptism should be solemnly administered in all cases
except the one mentioned in can. 759. But the local
Ordinary may, for weighty and plausible reasons, permit
the ceremonies prescribed for infant Baptism to be used
in the Baptism of adults.
The Popes and the Roman Congregations have always
enjoined the use of solemn ceremonies in the administra-
tion of Baptism because it would betray grievous negli-
gence to omit the ancient and imposing rites of this
Sacrament without cause.1 For weighty reasons, how-
ever, Paul III granted to the missionaries of the West
Indies permission to shorten the baptismal ceremonies,
e. g.t because of too great fatigue or lack of time.2 Leo
XIII, in 1897, gave to the Ordinaries of Latin America
the faculty of using the short or infant formula.1 Fur-
thermore it has been a custom, at least tolerated, in our
country to use the short formula also at baptisms of
1 Benedict XIV, "Inter omni- i"Altitndo," June I, 1537.
genas," Feb. a, 1744, n. 19: " N* 9" Tram Oeianum," April 18,
levet tint aut inanes causae pro 1897, n. VI.
omittcniiis caeremoniis praescriptis."
65
*Ie
J , Original fro ni
UNIVERSITY OF WISCONSIN
-
■
pi
66 ECCLESIASTICAL THINGS
adults. Now the legislator grants the Ordinaries power
by law to employ this form whenever there is a grave and
solid reason. Long-standing custom may be called such a
reason.4 Ordinarily the long formula must be used in
baptizing adults, *. e., all who have attained the use of rea-
son, even if baptism is conferred at home,5 provided
there is no danger of death. A grave reason would be,
as stated above, fatigue or lack of time, or great anxiety,
especially on the part of scrupulous persons.
RITE
Can. 756
§ 1. Proles r itu pa rent urn baptizari debet.
§ 2. Si alter parentum pertineat ad ritum latinum,
alter ad orientalem, proles ritu patris baptizetur, nisi
aliud iure special! cautum sit.
§ 3. Si unus tantum sit catholicus, proles huius ritu
baptizanda est
This canon merely applies can. 98 to the particular
case of Baptism. Children must be baptized according
to the rite of the parents, either Latin or Oriental. If
one of the parents belongs to the Latin and the other
to the Oriental rite, the rite of the father is decisive,
unless a special law provides otherwise, but if only one
of the parties is Catholic, the child must be baptized
according to the rite of the Catholic party.
This, in substance, has been the Roman practice since
Benedict XIV laid down with great prudence and justice
« It would not be amiss if synodal bishop of Paris had obtained pcrniis-
or provincial statutes would insert sion to baptize boy neophytes who
tbis permission. were admitted to Catholic schools
8 S. Rit C, Jan. 17, *j, 1914 *^» toe short formula. S. O., Mar
{A, Ap. S.. VI, 33. 73)- The arch- 19. >*79 (Colt. P. F., n. i5-'o).
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 757 67
the rules here codified.* A special provision was made
by S. C. Prop. Fide7 for the ecclesiastical province of
Leopolis (Lemberg). We do not know of any special
provisions having been made for the United States,8
wherefore the general law must be followed here.
baptismal water
Can. 757
§ 1. In baptismo Bollemni adhibenda est aqua ad hoc
benedicta.
§ 2. Si aqua benedicta in baptisterio adeo sit immi-
nuta, ut minus videatur sufficere, alia non benedicta
adrnisceatur, etiam iterate, minore tamen copia.
§ 3. Si vero comipta f uerit, aut effluxerit, aut quovis
modo defecerit, parochus in fontem, bene mundaturn
ac nitidum, recentem aquam infundat ac proprio ritu
in suis liturgicis libris praescripto benedicat.
§ 1. In administering solemn Baptism water especially
blessed for the purpose must be used. This is the so-
called baptismal water, which is blessed with special cere-
monies an Holy Saturday and the Vigil of Pentecost. It
should be kept in a neat and clean font, and the remain-
der poured into the sacrarium (waste-hole) when new
water has been blessed.8 Of course. Baptism would be
valid even if other water were used.10 Where there is
danger that the baptismal font may be profaned, the bap-
tismal water may be kept in any decent movable vessel.11
In one case the Holy Office allowed the use of common
8 " Elsi paitoratis." May 36. 174a, Rutheniina offer nothing tp«ctal.
I II, nn. VI, VIII; "Demand* 9 Rit. Rom., tit. II, c. 1, n. 4.
tarn," Dec. 24, 1743. I J. « S. O., April 6, 1741 iColl., n.
TOet. 6. 1863 (Coll.. n. 1143)- 3*5).
• S. C. P. F., April 11, 1894. rated " S. C. P. P., Peb. 13, t66*
u per above text; tbe decreci on the {Coll., a. 139)-
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
68 ECCLESIASTICAL THINGS
instead of baptismal water because the people whom the
missionaries had been sent to baptize held the supersti-
tious belief that the baptismal water was the cause of
their children's death.12
Water for baptismal purposes must be blessed not only
on Holy Saturday, but also on the Vigil of Pentecost, and
the custom, no matter how inveterate, of blessing water
on Holy Saturday only has been condemned as an abuse.19
Should it happen that the Holy Oils do not arrive in
time for the blessing on Holy Saturday, they may be
privately and separately poured into the blessed water
when they are received.14 If for some reason the Holy
Oils can not be blessed or obtained in any year, the Holy
Oils blessed the previous year may be used for the bless-
ing of the baptismal font; in that case the baptismal water
thus blessed with the old Oils should not be poured into
the sacrarium when the new Oils arrive.16 The follow-
ing decision may be quoted as useful: A bishop re-
quested that the priests of his diocese be permitted to
use the Holy Oils blessed the year before, because their
presence was needed in their parishes at the time when
the Holy Oils were ready for delivery. The S. Congre-
gation answered that each pastor should send a priest or
cleric (if possible in sacris) to fetch the Holy Oils, and
if this should prove impossible, the pastor or another
priest in his name might bless the baptismal font without
the Holy Oils, which should be poured into the water
privately and separately afterwards. If it became nec-
12 S. O., May 14, 1851 (Coll., n. the old ones, must be used; S. Rit.
1060). C, April 10. 1800 Wee, Auth., n.
18 S. Rit. C, Dec. 7, 1S44; 3724).
April ij, 1874 (Dtc. Auth., nn. 2878, 10 S. Rit. C, Sept. 33, 1837
333'). (Dec. Auth., a. 2773); the occasion
14 S. Rit. C, April 12, 1755, id of this dubium and its answer were
3 [Dee. Auth,, I.. 3436). If the the troublesome times in Spain; the
new oils arrive in time, these, not ruling may be applied to Mexico.
'■-.
§le
f~* ^ ^ ,L, Original from
UNIVERSITY OF WISCONSIN
CANON 758 69
essary meanwhile to administer Baptism, the old oils
might be used for the solemn blessing of the water.**
§ 2. If the water in the baptismal font is so diminished
that it appears to be insufficient for baptizing, ordinary
water may be mixed with it again and again, but in
steadily decreasing proportion.
§ 3. If the baptismal water becomes putrid (rotten)
or runs out of the font, or disappears in some other way,
the pastor shall cleanse the font and pour new water into
it, which he shall bless with the proper rite as prescribed
in the liturgical books. The formula for the blessing of
baptismal water — which is permitted only in case of
necessity 1T — will be found in the Roman Ritual.1* We
may add that, in case this blessing can not be performed,
and no other baptismal water is available, natural water
(not holy water) should be used for baptizing.1
19
method of baptizing
Can. 758
Licet baptismus conferri valide possit aut per infu-
sionem, aut per immersionem, aut per aspersionem,
primus tamen vel secundus modus, aut mixtus ex
utroque, qui magis sit in usu, rctineatur, secundum
probatos diversarum Ecclesiarum rituales libros.
Baptism may be validly conferred by infusion, (pour-
ing water over the head), by immersion, and by aspersion
(or sprinkling). Where infusion, or immersion, or a
combination of both methods is customary, the one most
c
10 S. Rit. C, Jan. 31, 1896 (Dec. \B Rit, Rom„ tit. a, c. 7 (cd.
Amlh., n. 3879)- Purtet, 1913. P- 59 ff).
ITS. 0., Jan. jo, 1765 (Colt., n. IBS. 0., April 17, 18J9; June »°<
439). 1883 {Coll., no. 889. i59«>-
jle
f~* ^ v ,1,., Original from
UNIVERSITY OF WISCONSIN
70 ECCLESIASTICAL THINGS
St
commonly used should be retained, according to the ap-
proved rituals of the different churches.
These three methods or rites of baptizing are thus
"canonized" by the Church, though immersion and as-
persion are more ancient than infusion, which came into
use only in the thirteenth century. The Greek Church
still practices immersion and aspersion, whereas in the
Latin Church infusion is more common.20 The essential
feature of all three methods is that the act of ablution be
duly expressed, and hence, if possible, the water should
flow.21 This symbolism, however, may also be expressed
by the use of a wet sponge or rag.81
A very doubtful, nay invalid manner was used by a
certain pastor who was accustomed to baptize children
by dipping his thumb into the baptismal water and
anointing (!) the forehead of the child — per modum
unctionis — with the thumb. The Holy Office declared
that all who had been thus baptized should be rebaptized
with water and the prescribed formula, but without
other ceremonies, and that the bishop should take care
to ascertain who of them had been promoted to sacred
orders."
s
private baptism
Can. 759
§ i. In mortis periculo baptismum privatim conferre
licet; et, si conferatur a ministro qui nee sacerdos sit
nee diaconus, ea tantum ponantur, quae sunt ad bap-
tismi validitatem necessaria ; si a sacerdote vel dia-
*0 Benedict XIV, " Etti potior- 21 S. O.. Nov. 8, 1770: July 9,
alii," May 26, 174a, ft II, n. II; S. 1779 (Coll.. on, 480, 536).
O., June 14. 1741 (Coll., n. 336). 22 s. O. Nov. 8, 1770; S. C. P. F.,
Infuiio «bould rather be called a/- Jin. 11, 1780 (Cell., nn. 480, 507).
fusio or pouring on. 28 S. O.. Dec. 14, 1898 (Coll., n.
XoaS): " Srru adprobarit."
§le
£ * ^ vnl/. Original from
UNIVERSITY OF WISCONSIN
CANON 759 71
cono, servcntur quoque, si tempus adsit, caeremoniae
quae baptismum sequuntur.
§ a. Extra mortis periculum baptismum privatum
loci Ordinarius permittere nequit, nisi agatur de haere-
ticis qui in adulta aetate sub conditione baptizentur.
§ 3. Caeremoniae autem quae in baptismi collatione
praetermissae quavis ratione fuerint, quamprimum in
ecclesia suppleantur; nisi in casu de quo in § 2.
In danger of death Baptism may be privately adminis-
tered. Two different cases are distinguished :
§ 1. If the Sacrament is conferred privately by one
who is neither a priest nor a deacon, then no ceremonies
or rites should be used, but only what strictly belongs
to validity. In that case the person baptizing takes
natural (not holy) water, pours it over the head of the
one to be baptized, — whether once or three times does not
matter " — and says : " I baptize thee in the name of the
Father, and of the Son, and of the Holy Ghost." (2)
If the person who baptizes privately, for instance, at
the home of the person baptized, is a priest or a deacon,
he must administer the Sacrament with the prescribed
ceremonies and rites, unless there should be no time to
apply all the ceremonies, or the parents would stubbornly
oppose them, or the Holy Oils, chrism or salt could not
conveniently be had. In these cases the priest or deacon
would be permitted to omit the ceremonies.18 Other-
wise there is a grave obligation to apply them even if
Baptism is conferred privately.20
Hence § 2 rules that, outside the case of danger of
death, the Ordinary may not permit private baptism to
S4JK*. Rom., tit. II, c 2, n- oB, 3d S. O., Feb. at, 1663; Nov. 8,
20 S. C. P. F., Aug. 30, 1775; 1770; Sept 5, 1877 (Coll., nn. 151,
Jan. 21, 1789. ad 1 (Celt., nn. 510, 480, 1480).
598).
oogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
72 ECCLESIASTICAL THINGS
be conferred, except on non-Catholic adults who are
baptized conditionally. This explains the serious obli-
gation spoken of in the preceding section. The text does
not limit the episcopal permission to individual cases, and
hence Ordinaries may impart this faculty habitually.
§ 3. The ceremonies omitted for any reason in the
administration of Baptism must as soon as possible be
supplied in church, except in the case mentioned in can.
759, § 2. These supplementary ceremonies must be gone
through in the church or oratory, to which the infant
must be brought as soon as time and occasion are favor-
able." It is hardly necessary to add that this is a griev-
ous obligation, from which only the reason mentioned
under § 2 excuses." It is becoming that the ceremonies
be supplied before sacramental confession, if this should
be required." When it is necessary to omit anything in
private Baptism, all the ceremonies preceding the act of
Baptism should be left out and no anointment with the
Holy Oils (O. C.) performed,10 because all these things
must be supplied according to the form prescribed in the
Ritual.81
a.
Can. 760
s
Cum baptismus sub conditione iteratur, caero
moniae, si quidem in priore baptismo omissae fuerunt,
suppleantur, salvo praescripto can. 759, § 3 ; sin autem
in priore baptismo adhibitae sunt, repcti in altero aut
omitti possunt.
■
'■-.
If Baptism is repeated sub conditione, the ceremonies
ITS. C. P. F., Aug. 30. 1775; a°S. Rit. C, Sept 33, 1830 (Dee.
Nov. a8, 1785 (Coll., nn. 570, 58,1). Auih.. n. 2607).
18 Benedict XIV, " Inter ommi- SI Rit. Rom., tit II, c. 5 <ed.
genai," Feb. 1, 1744, I 19. Puitet, 1913, p. j8 ft\).
20 S. C. F. P., July 19. 1838
(Cell., n. «7i).
'le
/•^ ^ v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 761 73
a
must be supplied if they were omitted in the former Bap-
tism, except in the case of adult non-Catholics (can.
759» § 2)J but if the ceremonies were used in the first
baptism, they may or may not be repeated in the sec-
ond. A curious case was decided by the Holy Office.81
In 1681 Scottish Protestants approached a priest with
the request either to be rebaptized or at least to have
the ceremonies repeated, because they were harassed by
demons and felt relieved by conditional Baptism or the
use of the customary baptismal ceremonies. The Holy
Office allowed the practice, especially for non-Catholics,
provided that conditional baptism was not administered
for futile reasons. Concerning parvuli or infants of non-
Catholics who are to be rebaptized conditionally, the Holy
Office informed88 the Bishop of Nottingham that such
conditional baptism in casu should be administered
secretly, but with the ceremonies prescribed in the Ritual.
As to adults, can. 759 § 2, says the ceremonies may be
omitted or applied ad libitum. If applied, the ceremonies
prescribed pro adultorum baptisnta must be used,84 unless,
of course, where can. 755, § 2, may be made use of.
—
s
christian names
Can. 761
I
Curent parochi ut ei qui baptizatur, christianurn
imponatur nomen; quod si id consequi non poterunt,
nomini a parentibus imposito addant nomen alicuius
Sancti et in libro baptizatorum utrumque nomen per-
scribant.
82 S. O.. Sept 17, 1681 (Coll.. 84 S. Rit. C, Aug. 27. 18^6 {Dec
n. 225). Auth., n. 2743)-
bs S. O ., April a, 1879 (Coll., n.
J5I6).
oogle
/*"* -» ^ -.1 » Original from
UNIVERSITY OF WISCONSIN
74 ECCLESIASTICAL THINGS
%
Pastors should sec to it that a Christian name is given
to all whom they baptize. If they can not obtain this,
they shall add to the name given by the parents the name
of some saint and enter both in the baptismal record.
The Church has always insisted 85 upon this pious
custom, and priests must now obey the law and may no
longer be accused of u cranky notions " when they do so.
The name of his patron saint should remind the faithful
Catholic of the example he is to imitate and of the pro-
tection he may expect through the intercession of the
patron.36
Here we may describe the manner of receiving non-
Catholics into the Church, according to the instruction
given to the Bishop of Philadelphia, July 20, 1859:
1. When Baptism is to be conferred absolutely, no
abjuration of heresy or absolution is required, because
Baptism wipes out all sins.
2. When Baptism is to be administered conditionally,
the modus procedendi is as follows :
a) Abjuration of heresy or profession of faith;
b) Conditional Baptism;
c) Sacramental confession with conditional absolu-
tion.
The instruction adds the formula of abjuration and
advises the clergy to comply with the wish of converts
o
who desire to have the Catholic ceremonies supplied.3'
rv
»» Clement XII, " Compertum," M S. C. Sacr., March ij, igio,
Aug. 24, 1734, ad II, dub.; Bene- ad 9, n. 1 (4. Ap, S., II, 195).
<Ikt XIV. " Inter omnigenas," Feb. 87 Coll P. F.. o. 1178.
*• >744> I 3- Pagan names are to
be excluded entirely.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CHAPTER IV
godparents or sponsors
Can. 762
§ x. Ex vetustissimo Ecclesiae more nemo sollem ni-
ter baptizetur, nisi suum habeat, quatenus fieri possit,
patrinum.
§ a. Etiam in baptismo privato patrinus, si facile
haberi queat, adhibeatur ; si non interf uerit, adhibeatur
in supplendis baptismi caeremoniis, sed hoc in casu
nullam contrahit spiritualem cognationem.
That the custom of having sponsors at solemn baptism
is very ancient is borne out by historical documents.1
The name sponsores occurs in Tertullian's treatise on
Baptism.2 Other names, used especially in connection
with spiritual relationship, were compatres or cotntnatres
spirittiales* and patrini. They were employed not only
at the Baptism of grown persons, but also of children
when infant baptism became more general in the fifth
century, as may be seen from synodal acts. Monks and
nuns were forbidden to act as godfathers and god-
mothers.* The reason for this prohibition is not far to
seek. Their secluded life seemed to debar them from
assuming the duties of sponsors, which are to instruct
the godchildren and to exhort them to lead a Christian
life, especially if the parents should die or neglect their
lCfr. Martfcne, Dt Anliq. Eccl. lArchiv fur K.R.. 1906, 688 ff,
Hitibus, 1. I, c. i, art. 16, n. xi. « C 104, Dirt. 4, d* cons.
3 Cap. 18 (Migne 1, col. 1221).
75
■oogle
/"^ ^ v J„ Original fro m
UNIVERSITY OF WISCONSIN
76 ECCLESIASTICAL THINGS
obligations.5 It must be added, however, that the au-
thentic collections contain no text forbidding religious
to become godparents. Our Code has a mitigated prohi-
bition to that effect.
§ i, then, enjoins the observance of the venerable cus-
tom of having godparents at solemn baptism, if pos-
sible.'1 If sponsors, as described in the Code, cannot be
had, except with difficulty, Baptism may be conferred
without them ; T but if religious are present, they may
and should be admitted as sponsors.8
§ 2. Also at private Baptism a sponsor should be em-
ployed if possible; if none was present, one should be
called when the ceremonies are supplied; but in that case
no spiritual relationship is contracted, and therefore rela-
tives, too, may be admitted.8
1/1
sponsors at conditional baptism
Can. 763
§ 1. Cum baptismus iteratur sub conditione, idem
patrinus, quatenus fieri possit, adhibeatur, qui in
priore baptismo forte adfuit ; extra hunc casum in bap-
tismo conditionato patrinus non est necessarius.
§ 2. Iterato baptismo sub conditione, neque patrinus
qui priori baptismo adfuit, neque qui posteriori, cogna-
tionem spiritualem contrahit, nisi idem patrinus in
utroque baptismo adhibitus fuerit.
-,
When Baptism is repeated sub conditione, if possible
the same sponsor should be employed who was present
BS. Thomas, S. TK, III. q. 68, «S. Rit. C, Feb. 15, 1887 {Coll,
a. 7; S. O., Dec. 9, 174s {Coll., n. n. 1667).
355). OS. C. P. F.. Sept. 11, 1779
6 Trid., sesa. 24, c. 2, de tef. {Coll., n. 537).
7 S. C. P. F.t April 1, i8i6, Louia-
Tille, Ky. {Coll., n. 709).
* I Inr.nltf> Original from
,00cVC UNIVERSITY OF WISCONSIN
■
pi
CANONS 764-765 77
the first time ; but if this is not possible — and it would
not be possible if he had not the qualities negatively de-
scribed in can. 765 — no sponsor is required for condi-
tional Baptism. No spiritual relationship is contracted,
unless the same qualified sponsor acts as such on both
occasions.
NUMBER OF SPONSORS
s
Can. 764
Patrinus unus tantum, licet diversi sexus a bapti-
zando. vel ad summum unus et una adhibeantur.
There should be only one sponsor, but he may be of
different sex than the one to be baptized; at most two
may be employed, vis., a man and a woman. This rul-
ing10 is evidently inspired by the desire to diminish
spiritual relationship, which seems to have been the de-
light of older canonists and glossators.
requisites of legal sponsorship
Can. 765
Ut quis sit patrinus, oportet :
i.° Sit baptizatus, rationis usum assecutus et inten-
tionem habeat id munus gcrendi;
a.° Ad nullam pertineat haereticam aut schismati-
a
cam sectam, nee sententia condemnatoria vel declara-
toria sit excommunicato aut infamis infamia iuris aut
exclusus ab actibus legitimis, nee sit clericus depositus
vel degradatus ;
3.0 Nee sit pater vel mater vel coniux baptizandi;
zo Cc. 100 f., Dist. *, di cons.; c 3, X, IV, 3; Trid,, smb. 24, c. 2,
it rcf.
>Ic
p^^ tL* Original from ^
UNIVERSITY OF WISCONSIN
Q
■--.
78 ECCLESIASTICAL THINGS
4.0 Ab ipso baptizando eiueve parentibus vel tutori-
bus aut his deficientibus, a ministro sit designatus ;
5. ° Baptizandum in actu baptism i per se vel per pro-
curatorem physice teneat aut tangat vel statim levet
seu suscipiat de sacro fonte aut de manibus baptizan-
tis.
We call the following legal requisites, because the term
" valid " hardly covers them all:
( 1 ) The sponsor must be baptized, have attained the
age of discretion, and have the intention of taking the
office of sponsor upon himself.
(2) He or she must belong to no heretical or schis-
matical sect, nor be excommunicated by either a con-
demnatory or a declaratory sentence, nor be infamous by
law, nor be excluded from legal acts, nor be a deposed
or degraded clergyman.
(3) He or she must be neither the father nor the
mother nor the consort of the one to be baptized.
(4) He or she must be appointed either by the one
to be baptized, or by the latter's parents or guardians,
or, if these (three classes) be wanting, by the minister
of the Sacrament.
(5) The sponsor must either personally or by proxy
take upon himself the sponsorship by a physical act
indicative of sponsorship according to custom.
Concerning n. it it is evident that sponsorship must be a
human act, and as Christian Baptism is implied, it is
required, besides, that the sponsor be himself initiated,
i. e.t a member, like in any knighthood or society.
With regard to heretics or schismatics it has been the
constant and uniform practice of the Church to refuse
to admit as sponsors all persons who are not of the
faith, since a sponsor assumes the duty of instructing his
§le
/*.,., ,L» Original fro m
UNIVERSITY OF WISCONSIN
CANON 765 79
godchild in Christian doctrine.11 It makes no difference
whether such persons appear themselves or are repre-
sented by a Catholic proxy.11 Neither is friendship, or
blood relationship, or any other natural tie sufficient to
break these rules.18 From the fact that a notoriously
censured Catholic may legally be a sponsor, it has been
inferred that a non-Catholic might just as well be ad-
mitted. This conclusion is not justified1* because of the
implied office of teaching and of the position the Church
has always maintained towards heresy and schism.
The code also draws a distinction between a condemned
or declared excommunicato* and one notoriously excom-
municated, as per can. 766, n. 2. By committing a crime
to which the Code attaches the penalty of excommunica-
tion, one may be notoriously excommunicated, though
no judge has declared him such or condemned him to
that penalty.
What legitimate acts (not actions) are, is stated under
can. 2256; one of them is precisely that of acting as
sponsor.
No. 3 excludes father and mother and consort (hus-
band or wife) of the one to be baptized from sponsor-
ship. If any of these persons should act as sponsors,
no spiritual relationship is contracted.18
No. 4 rules that appointment or designation is required
for sponsorship- This must be made before Baptism.
Post factum approval or ratification is insufficient, though
11 S. O., Oct. 14, 1676; Dec. J, 1*5. O., May j, 1893 (.Coll., n.
1745; Jan. 1763; S. C. P. F., Sept x8ji).
8, 1869, n. 47 (Coll., nn. ait, 355, 15 S. O., Sept. 15, 1869 {Coll.,
447. 1346); the admission of such n. 1347). This holds even if they
persons is styled obusvs. have become sponsors by fraud or
12 S. O., June 30, July y, 1864; out of levity, and hence they neither
Jon. 3. 1S71 (Call., nn. ia$7. 136a). lose the right to demand or the duty
18 S. 0., Oct. 14. 1676 (Coll., o. to render the dtbitum coniugalt.
=m).
>Ie
k ,1,., Original from
UNIVERSITY OF WISCONSIN
8o ECCLESIASTICAL THINGS
the parents may presume consent. The reason for this
law is that the sponsor must have the formal intention
and will to accept and perform the duties attached to
sponsorship.16
No. 5 speaks of a physical act and enumerates four
terms, which are used to signify sponsorship, vis.: tenere,
i, e., to hold the child in the act of Baptism, when the
water is poured on the head; tangere, to touch the
child on the arm or any part of the body whilst another
holds it over the baptismal font; levare, which is derived
from immersion, and means to lift or raise out of the
water, lake or pond; suscipere, to receive from the bap-
tismal font or the hands of the minister. Concerning
tenere, to hold, a decision has been given to the effect
that it is sufficient that the sponsor put his or her arm
in that of the person who holds the child, or touch that
person, v. g.f nurse or midwife, and accompany him or her
to the baptismal font. It is not required that the sponsor
personally offer the child for Baptism.17 Whence it may
be concluded that mediate physical contact is sufficient.
All the above-mentioned acts may be performed by
proxy. The proxy must come in physical touch with
the subject. Whilst there are decisions debarring non-
Catholics from acting as sponsors, either personally or
in
through a Catholic proctor, we can find no decision ex-
cluding them from acting as proctors for Catholic spon-
sors. However, as can. 2256, 20, excludes them from
legal acts, even those peculiar to a procurator, it would
not be safe to employ them in Baptism. This does not
mean, of course, that a non-Catholic may not act as a
mere witness or nominal sponsor together with a Catholic
sponsor.18
!• S. O., Sept. 15, 1869 (Coll., 18 The baptizing minister in such
n. 1347); cfr. can. 1079. cases should gently insinuate that
IT S. C. P- F., Jan. 41, 1856 only the Catholic party is sponior.
(Co//., n. 11 19). S. O., Jan., 1763 (Coll., n. 4<7>.
Q
'°°cVC UNIVERSITY OF WISCONSIN
-
CANON 766 81
Can. 766
Ut autem quis licite patrinus admittatur, oportet:
i.° Dec i mum quartum suae a eta t is annum attigcrit,
nisi aliud iusta de causa ministro videatur;
2.0 Non sit propter notorium delictum excommuni-
catus vel exclusus ab actibus legitimis vel infamis in-
famia iuris, quin tamen sententia intercesserit, nee sit
interdictus aut alias publice criminosus vel infamis in-
f amia f acti ;
3.0 Fidei rudimenta noverit;
4.0 In nulla religione sit novitius vel professus, nisi
necessitas urgeat et expressa habeatur venia Superioris
saltern localis:
5.0 In sacris ordinibus non sit constitutus, nisi acce-
dat expressa Ordinarii proprii licentia.
That one may be licitly admitted to sponsorship, it is
required :
i°. That the sponsor have reached (not completed) the
fourteenth year of age, unless the minister, for a just
cause, sees fit to admit a younger person. A just cause
may be the moral or intellectual qualities of the person
admitted; local or rather climatic conditions (in Southern
countries maturity sets in sooner) ; family traditions, or
particular circumstances.
2°. That the sponsor be not excommunicated for a
notorious crime ; or excluded from legal acts ; or rendered
infamous by law, without a sentence having been issued
to that effect; or interdicted; or a public criminal; or
infamous in fact. Evidently the Code wishes to debar
from sponsorship all whose moral character and reputa-
tion do not guarantee fitness to raise a Catholic child,
which, as sponsor, one would be expected to do in case of
Q
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
82 ECCLESIASTICAL THINGS
necessity. Besides, sponsorship is an honor and should
not be conferred on unworthy persons. The former rea-
son is alleged in an instruction of the Holy Office with
regard to Freemasons, These, if their membership in
the Order is notorious, are not to be admitted as spon-
sors. 10 The other points noted in the text must be in-
terpreted according to Book V. Stress is to be laid on
notoriety, as the text itself explains.
3°. That the sponsor know the rudiments of faith,
which requirement is as stringent for sponsors as for
adults who desire to be baptized (see can. 752).
4°. That the sponsor be neither a novice nor a professed
member of any religious institute. However, in urgent
cases, and with the express (not presumed) permission
of at least the local superior, religious may be admitted
to sponsorship.30 An urgent case would be if Baptism
would otherwise have to be conferred without spon-
sors.21 In hospitals and other asylums Sisters are some-
times called upon to act as sponsors ; they may do so with
the permission of the superioress.
50. That the sponsor be not a cleric in higher orders,
for such may act as sponsors only with the express per-
mission of the Ordinary. This includes subdeacons. An
Ordinary, whether bishop or prelate regular, may grant
himself permission, and therefore act as sponsor without
consulting any one else.
i» S. ("».. July 5, 1878, ad ordin. also be alleged. Thus it fi cus-
BrasiL (Coll.. n. 140s). totnary that the Abbot of Engel-
20 Cf r. c. 8, C. 16, q. 1; c 103 berg, Switzerland, acts as godfather
{., DisL 4, dt cons. to every firstborn boy in the vil-
21 S. Rit. C, Feb. 15, 1887 (CotL lage, and the S. Coog. did not wish
P. F., n. 1667). Custom might to abolish this custom.
ioi >gle
i*~" * . ,L» Original from
UNIVERSITY OF WISCONSIN
■
CANONS 767-769 83
Can. 767
In dubio utrum quis valide vel licite admitti possit,
necne, ad patrini munus, parochus. si tempus suppe-
tat, consulat Ordinarium.
When in doubt as to whether any one may be legally
or licitly admitted to sponsorship, the pastor should con-
sult the Ordinary if time permits.
spiritual relationship
Can. 768
Ex baptismo spiritualem cognationem contrahunt
tantum cum baptizato baptizans et patrinus.
Spiritual relationship is contracted only between the
minister and the one baptized, and between the sponsor
and his godchild. Of this more under can. 1079.
DUTIES OF SPONSORS
<J
£ Can. 769
■_
Patrinorum est, ex suscepto munere, spiritualem
filiurn perpetuo sibi commendatum habere, atque in
iis quae ad christianae vitae institutionem spcctant,
curare diligenter ut ille talem in tota vita se praebeat,
qualcm futurum sollemni caeremonia spopondcrunt.
It is the duty of godparents, arising from sponsorship,
to regard their spiritual children as their perpetual
charges and to instruct them carefully in the obliga-
tions of the Christian life, in order that they may prove
themselves such as they solemnly promised by their bap-
tismal vows to be. The obligation exists even if the
jle
£ " ^ , -As* Original from
UNIVERSITY OF WISCONSIN
84 ECCLESIASTICAL THINGS
-
sponsors think they are not bound by it. It binds chiefly
when the parents neglect their duty.22
21 S. O., Dec 9, 1745 {Coll., n. proestondum, si carnalti parentis id
355): " Alimd tst quod patriui non factre netUgQnt, uti doctt D.
curenl, oliui quod non tenccntur ThemaS, 111, fl. 6;, a. 8."
curorw. Ttnentw ttiam hodie od id
Gi Original from
UOglt UNIVERSITY 0FWI5C0NSIN
"
CHAPTER V
TIME AND PLACE OF BAPTISM
T
Can. 770
."
Infantes quamprimum baptizentur; et parochi ac
concionatores frequenter fideles de hac gravi eorum
obligationc commoneant.
Can. 771
Baptismus privatus, urgente necessitate, quovis tem-
pore et loco administrandus est.
The first of these two canons confirms the old practice
of having infants baptised as soon as possible. To ad-
monish the faithful of their grave obligation to comply
with this law is the office of pastors and preachers.
Private baptism, according to can. 771, in case of
urgent necessity may be administered at any time and in
any place.
The reason for the important law embodied in can.
770 is the necessity of Baptism for eternal salvation.
Leo XIII justly called the practice of delaying Baptism
a detestable and impious abuse.1 An instruction of the
Holy Office enjoined the Coptic missionaries to tell moth-
ers that they are guilty of cruelty to their offspring if
they delay Baptism for fear of temporal death while
exposing them to eternal death.2 The term quamprimum,
as soon as possible, is assumed to signify three, or, at
X" Grout," J11I7 », 1099 (Colt. IS. O., June 14, «74< (Con., n.
P. P., n. ao6o). ja«).
85
>Ie
£ ' ^ ^ -As* Original fro m
UNIVERSITY OF WISCONSIN
86 ECCLESIASTICAL THINGS
most, eight days from the birth of the child.8 An urgent
necessitas would exist, e. g., a) if the distance from
church were great,4 say more than three leagues; b) if
the parents stubbornly objected to having the child
brought to church. In these and similar cases private
baptism without ceremonies and rites may be adminis-
tered, but the latter must be supplied when the parents
give their consent or the child can be brought to church.'
When a child is so feeble that there is danger of death,
the midwife may baptize him, provided the danger is
quite positive.6
When Baptism, private or solemn, is administered at
home, the faithful should be instructed that it is valid
and not a mere ceremony.7
solemn baptism
Can. 772
Etiam sollemnis baptismus qualibet die admini-
strari potest; decet tamen adultorum baptismum, se-
cundum antiquissimum Ecclesiae ritum, conferri. si
fieri commode queat, in pervigilio Paschatis et Pente-
costes, praecipue in metropolitanis aut cathedralibus
ecclesiis.
Solemn Baptism, too, may be administered at any time ;
but it is becoming, if it can be done conveniently, that'
adults be baptized on the vigils of Easter and Pentecost,
according to the ancient liturgies, especially in metropoli-
tan and cathedral churches.
SS. C. P. F.# Sept 11, 1841 « S. C. P. F., Sept. It, 17791 S.
(Coll., n. 939). 0., Jan. n, 1899 {Coll, an. 517.
4 S. C. P. F., Nov. a8, 1785 (Coll., 203 J>-
n. 583). 7 This wai the idea of the Nefr
6 S. C. P. F.. Aug. jo. I77S torian*; S. C. P. F.. July jx, 100J
(Coll., n. 510). (Coll., n. ai49>-
^
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 773 87
The ancient custom was vindicated by Pope Siricius
(384-398) and has been observed from time immemor-
ial,8 more especially with regard to grown persons, who
were first received into the ranks of the catechumens and
had to undergo a long trial and pass the scrutinia in
Lent. On Holy Saturday they were mustered and
marched into the baptistery, whilst the faithful in church
attended the reading of the prophecies.8 That the cere-
mony was impressive and an occasion of joy for the
bishop goes without saying. The Church, in her truly
conservative spirit, wishes to preserve the old tradition
as much as modern circumstances permit. But, as the
text says, according to the ancient ritual,10 this custom
should be observed only when adults are to be baptized,
because it might be dangerous and fatiguing to delay
Baptism or to attend such an extended ceremony for
children."
place of baptism
Can. 773
Proprius baptismi sollemnis administrandi locus est
baptisterium in ecclesia vel oratorio publico.
The proper place for administering solemn baptism is
the baptistery of a church or public oratory. The
sacristy is not the proper place, unless there be a reason-
able cause for using it. This cause must be submitted
to the Ordinary.12 A valid reason would be repair work
going on in church, and, we believe, coldness of the
• Cfr. cc. 11, 15, Dist 4, de cons. vento. 1693, held by the later Bene-
* This is the origin of those diet XIII, allowed children to wait
prophecies being read in church. fourteen days; tit. 36, c. 8 (Coll.
loTit. II, c. 1, n. rj\ c. 3. nn. Lac., I, 70).
4-4. US. Rit. C. March 14, 1861. ad
11 The provincial Synod of Bene- IX (Dtc. Auth., n. 3»<>4).
>Ic
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
ECCLESIASTICAL THINGS
church on a winter day when the whole church cannot
be heated on account of a baptism occurring on a week-
day.
Solemn Baptism may not be administered in the private
oratories (for an exception see can. 776, § I, 1°) of
private persons." Neither are semi-public oratories, for
instance, Sisters' chapels or hospital oratories, the proper
place to baptize, because the text plainly says "public
oratories."
Baptism may, by way of exception, be conferred at a
special altar, on account of a particular devotion to the
Saint to whom the altar is dedicated ; 14 but this altar must
be in the church, not in a private chapel or semi-public
oratory.
a baptismal font in every parish church
Can. 774
§ 1. Quaelibet paroecialis ecclesia, revocato ac re-
probato quovis contrario statuto vel privilegio vel con-
suctudine, baptismalem habeat fontem, salvo legitime
iure cumulative) aliis eccleaiis iam quaesito.
§ 2. Loci Ordinarius potest pro fidclium commodi-
tatc pcrmittere vel iubere ut fons baptismalis ponatur
ctiam in alia ecclesia vel publico oratorio intra paroe-
ciae fines.
• i
B
■
The characteristic sign of a parish church has always
been the baptismal font, though some canonists thought
it was not essential to a parish church."
18 C. ■it:.. Clem. III. is: Bene- Auth.. n. 3695); with the approval
diet XIV, '* Magno c*m," Jmnt a, of the Ordinary.
1751. I »fJ Mb Rom., tit. II, c. I, lOCfr. S. C, EE. ct RR., June 9.
nn. j8. 30; c. 3. n. ;. 1848 (Biszarri, Coll., p. $6j f.).
l*S. Rit C, S«pt i. 1888 (£»«c.
jle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 774 89
§ I of our canon revokes and reprobates every statute,
custom or privilege which would prevent the erection of
a baptismal font in every parish church, and commands
that every parish church should have its own baptismal
font.18 This, of course, implies that the blessing of the
baptismal water on the vigils of Easter and Pentecost
must be performed in each and every parish church ac-
cording to the Roman Ritual. The pastor is not allowed
to put this ceremony off to another day.17 From the
above rule it follows that if a cathedral church is not a
parish church, it is not entitled to a baptismal font,19
unless, of course, the bishop should make use of § 2, can.
774. But the Ordinary is not empowered to erect in a
cathedral church which is not a parish church a tem-
porary baptismal font, or to allow a portable font and
bless water without the mixture of the Holy Oils, for the
two Saturdays mentioned.19
The meaning of the clause: "with due regard to the
legitimate cumulative right acquired by another church "
(salvo legitimo iure cumulativo aliis ecclesiis iam quae-
sito) may be illustrated by quoting a decision of the S.
Rit. C. In the diocese of Spalato, Dalmatia, the baptis-
mal font was blessed only in the cathedral, pro-cathedral,
collegiate and in some principal parochial churches ; the
other churches got their baptismal water from the former.
The S. Congregation decided that this custom was no
longer to be tolerated, with due regard, however, to the
special and determined rights of the mother churches.
The churches which received their baptismal water from
the others were most probably daughters or branches."
leS. C. C, Feb. 10, 1748, denied 18 S. Rit. C, Aug. 31, 1872 (Dtc
the right of having s baptismal font Autk., n. 337a).
to a collegiate church (Richter, in S. Rit. C, Jan. 13, 1899 (Dec.
Trid,, p. 118. n. n), Autk., n. 4005).
ITS. Rit. C. Jan. 13. 1800 (Dec. 20 S. Rit. C. June 7, 1892 (Die.
Autk., n. 4005). Autk., n. 3776).
oogl
e
Original from
UNIVERSITY OF WISCONSIN
90 ECCLESIASTICAL THINGS
St
What the special rights of the mother churches were is
not stated in the decision. They probably consisted in
a certain deference or respect which took the form of a
tithe or tribute, or perhaps mere precedence.21 Some-
times, in such cases, express stipulations existed,
allowing the parishioners of the branch churches
to bring their children to the mother church for Bap-
tism."
In our country no such rights should be reserved be-
cause it would only cause confusion and curtail parochial
rights.
§ 2 rules that the local Ordinary may, for the con-
venience of the faithful, permit or command that another
baptismal font be placed in some other church or public
oratory within the boundaries of a parish. This new 2S
law gives the Ordinary the right of erecting baptismal
fonts in other than parish churches, e. g.f public oratories
or chapels of ease, but not in semi-public or private
oratories. This will be very convenient for missionary
stations or missions attached to a quasi-mother church.
It seems logical that the blessing of the baptismal font
on the vigils of Easter and Pentecost should be per-
formed in these churches or public oratories." Yet the
wording ponatur, be placed, would seem to admit of an-
other practice, vis.: that of receiving the baptismal water
from the parish church and putting it in the baptismal
font. We believe this practice could not be called un-
lawful."
21 S. C. C, Aug. 3, Dec. (4, 1748 recommends the erection of a new
(Riehter, Trid., p. 118, n. 10). pariih.
22 S. C. C, June 22, 1720 (Rich- 24 S. Rit. C, June 7, 1892 {Dee.
her. / c, n. 11). Auth., n. 3776) would seem to fivor
18 S, C. Cm Aug*. 17, 1616; Sept. this assumption.
M, 174^ (Richter. Trid., n. 8) 25 S. C. P. F., Sept, 1779; Aug.
would not permit this, but rather aj, 1852 (Coll., nn. 537, 1079).
jle
f - j ^ Original from
UNIVERSITY OF WISCONSIN
CANONS 775-776 91
Can. 775
Si ad ecclesiam paroecialem, aut ad aliam quae iure
fontis gaudeat, baptizandus, propter locorum distan-
tiam aliave adiuncta, sine gravi incommodo aut peri-
culo, accedere aut transferri nequeat, baptismus sol-
lemnis a parocho conferri potest et debet in proxima
ecclesia aut oratorio publico intra paroeciae fines, licet
hacc baptismal! fonte carcant.
The Church to-day is even more condescending than
formerly, and permits the administration of solemn Bap-
tism in any church or public oratory situated within the
parish boundaries, even though it be destitute of a bap-
tismal font. However, there must be a reason for mak-
ing use of this permission. A sufficient reason is if the
one to be baptized, whether infant or adult, cannot, with-
out great inconvenience or danger, be brought or go to a
church, which has a baptismal font, whether it be a parish
or some other church. In that case the parish priest
may and should confer Baptism in the nearest church oc
public oratory within the parish boundaries. A serious
inconvenience may arise from distance, or expense, or a
contagious disease.
solemn baptism in private houses
Can. 776
§ 1. In domibus aut em privatis baptismus sollemnis
administrari non debet, nisi hisce in adiunctis:
i.° Si baptizandi sint filii aut nepotes eorum qui
supremum actu tencnt populoruxn principatum vel ius
habent succedendi in thronum, quoties isti id rite po-
poscerint ;
a.° Si loci Ordinarius, pro suo prudenti arbitrio et
>Ie
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
92 ECCLESIASTICAL THINGS
conscientia, iusta ac rationabili de causa, in casu aliquo
extraordinario id concedendum censuerit.
§ 2. In memoratis casibus baptismus conferendus
est in sacello domus aut saltern in alio decenti loco, et
aqua baptismali de more benedicta.
§ 1. Solemn Baptism may not be administered in pri-
vate houses except in the following circumstances — apart
from cases of necessity":
l°. If those to be baptized are the sons or grandsons
of actual rulers, or of their prospective successors to the
throne. If this privilege is desired, petition must be
made for it either directly to the Ordinary, or to the
parish priest, both of whom are entitled to perform the
rite;
2°. If the local Ordinary, after prudent and conscien-
tious deliberation, judges that there is a just and plausible
cause for granting the permission in some extraordinary
case. Such cases would be : if Catholics would demand
to have their children baptized in the house of a Catholic
consul, which may happen among foreigners;" if the
distance from the church would be very considerable,
say ten geographical miles.28 But solemn baptism may
never be administered in the houses of non-Catholics, not
even in case of necessity or danger of death.2*
§ 2 enjoins the minister to confer baptism, in the
cases mentioned under § t, in the oratory or some other
decent place, and with baptismal water, i. e.t water
blessed on the vigils of Easter and Pentecost, or accord-
28 S. C. Sacr.. Dec. 23, 191a (A. destitute of these privileges; cfr.
Ap. S., IV, 725). Westlake, International Lavr, P. I,
27 S. O.. Jan., 1763 (Co//., n. Peace. 1010, p. j8R f.
447). This may certainly be ex- 28 S. Rit. C, Feb. 10, 1871, ad
tended to the palaces of Catholic III {Dec. Auth., n. 3234).
ambassadors who enjoy cxterioriality 20 S. 0., Jan. 21, 1767 (Coll., n.
and immunity, whilst the consuls are 465).
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
-'
CANON 776 93
ing to the formula prescribed for supplementing it when
the supply is exhausted; — except, of course, in urgent
cases, which admit of the shortest possible form.10
•OS. Hit. C, Jan. 17. 1914 <A- *• >• n. a«; c 7 (cd. Puitct, 1913,
Ap. S., VI, 3J); R\t. Rom.t tit II, p. $9).
I Original from
y^jOO^K. UNIVERSITY OF WISCONSIN
N
■
CHAPTER VI
BAPTISMAL RECORD AND PROOF
Can. m
§ i. Parochi debent nomina baptizatorum. mentione
facta dc ministro, parentibus ac patrinis, de loco ac die
collati baptismi, in baptismal! libro sedulo et sine ulla
mora referre.
§ a. Ubi vero dc illegitimis filiis agatur, matris no-
men est inserendum, si publice eius matemitas constet,
vel ipsa sponte sua scripto vel coram duobus testibus id
pctat ; item nomen patris, dummodo ipse sponte sua a
parocho vel scripto vel coram duobus testibus id requi-
rat, vel ex publico authentico documento sit notus ; in
ceteris casibus inscribatur natus tanquam Alius patris
ignoti vel ignotorum parcntum.
Can. 778
Si baptismus nee a proprio parocho nee eo praesente
administratus fuerit, minister de ipso collato quam-
primum proprium ratione domicilii parochum baptizati
certiorem reddat.
Parish priests must enter in the baptismal record the
names of the baptized, the minister, the parents and god-
parents, the place and date of Baptism. This record
must be made carefully and without delay.
In the case of an illegitimate child the mother's name
must be put down if she is publicly known to be the
94
■ OO^K. UNIVERSITY OF WISCONSIN
CANON 779 95
mother, or if, of her own accord, she demands it in writ-
ing or before two witnesses. The name of the father
must be recorded only if he, of his own accord, demands
it of the pastor either in writing or in the presence of
two witnesses, or if he is known to be the child's father
by an authentic public document. In all other cases the
one baptised must he recorded as the offspring of an
unknown father or unknown parents.
If the Baptism was not administered by the pastor,
nor in his presence, the minister shall notify the pastor
as soon as possible of the fact. It is hardly necessary to
call attention to the grave obligation of keeping proper
baptismal records, on which authentic testimonies de-
pend.1 Benedict XIV called upon the Ordinaries to ex-
amine the baptismal records at each canonical visit.3 The
Code enjoins recording without delay (sine mora), which
means the same day the Baptism was conferred, unless
the book were not at hand, as may happen with mission-
aries, who cannot carry the baptismal books from place
to place. The term sedulo (diligently) includes whatever
is necessary for clear, legible, and neat bookkeeping.
The priest should if necessary, keep a separate record for
children of another, (for instance, the Ruthenian) rite.8
proof of baptism
Caw. 779
-
D
Ad collatum baptismum comprobandum, si nemini
fiat praeiudicium, satis est umis testis omni exceptions
maior, vel ipsius baptizati iusiurandum, si ipse in
adulta aetate baptismum receperit.
-
1 Trid., Bess. .-■: . c. 2, d* rrf. mat.; t" Firmandis," Nov. 6, 1744. 9 9-
S. 0., Dec. 9. 1745 (.Coll., n. 34s). * S. C. P. F.. Oct. 6. 1863. C. a.
Instr. S. C P. F., June 25, 1791 (Coll., n. 1241): in libro separato.
(Coll., a. 605).
*Ie
Original fro ni
UNIVERSITY OF WISCONSIN
96
ECCLESIASTICAL THINGS
If no prejudice is involved to a third person, one abso-
lutely trustworthy witness is sufficient to prove that Bap-
tism was conferred ; the sworn statement of the one bap-
tized is also admissible, if baptism was conferred on him
as an adult. The reason why one witness suffices must
be sought in the danger of incurring ecclesiastical penal-
ties if one should baptize a child against the will of the
parents. Hence no one is supposed to testify against
himself, and therefore his testimony is admitted.4 Thus
the statement of a catechist, if he has a good reputation,
would be sufficient.5 We also think that a physician's or
midwife's testimony may be admitted under the same
condition.
The text says, if no prejudice arises to a third person.
When a material advantage, for instance, a legacy, or a
spiritual benefit (preferment) would be involved against
the claim of another, two witnesses would be required.
The statement of the baptized subject is admitted and
affords full proof only if it is given under oath and the
Baptism was conferred after the subject had attained
the age of discretion (about the seventh year). No dis-
tinction is made between the testimonies erf men and
women,*
4 Benedict XIV, " Postrtmo
mente," Feb. sg. 1747, "- 3' '. «.
no, lia, lij, Di'st. 4, de cons;
Glossa ad c. 51, X, II, ao, s. v.
" nisi ittratus"
5 S. C. P. F., Sept. 8, 1869 (Co//.,
n. 1346).
0 Benedict XIV, " Pottrtmo
mtnse," nn. 35. J»» 55-
oogle
Original from
UNIVERSITY OF WISCONSIN
■
TITLE II
CONFIRMATION
' matter and form
Can. 780
Sacramentum confirmationis conferri debet per
manus impositionem cum unctione chrismatis in fronte
et per verba in pontificaiibus libris ab Ecclesia probatis
praescripta.
Can. 781
§ 1. Chrisma, in sacramento confirmationis adhiben-
dum, debet esse ab Episcopo consecratum, etiamsi sa-
cramentum a presbytero. ex iure vel ex apostolico in-
dulto, ministretur.
§ 2. Unctio autem ne fiat aliquo instruments sed
ipsa ministri manu capiti confirmandi rite imposita.
The Sacrament of Confirmation must be administered
by laying on hands, and anointing the forehead with
chrism, and pronouncing the words prescribed in the
pontifical books approved by the Church.
The chrism to be used in the administration of this
Sacrament must be blessed by a bishop, even though a
priest may administer it, either by law or in virtue of an
apostolic indult.
The anointing is not to be performed with an instru-
ment, but with the minister's hand, placed upon the head
of the subject to be confirmed.
97
ogle
Original fro rm
UNIVERSITY OF WISCONSIN
98 ECCLESIASTICAL THINGS
The Sacrament of strength or of zeal is distinct from
Baptism, the indelible character of which it enlarges or
deepens. Confirmation confers a grace distinct from the
baptismal grace. It is pre-eminently the Sacrament of
the Holy Ghost.1 Being essentially distinguished from
the Sacrament of Baptism, it requires a distinct matter
and form.
i. The remote matter is chrism, which is composed of
balsam and olive oil. The latter is essential for the
validity of the Sacrament. Balsam, too, must be said to
belong to the essence of the matter, at least according to
the Decree for the Armenians and the ancient Greek
Euchologia.1 The validity of the matter is, however, not
affected by mingling other aromatics with the balsam.'
The blessing or consecration of the matter must be per-
formed by a bishop. Whether a priest, with the per-
mission of the Pope, could consecrate chrism is a specu-
lative question. The affirmative view is certainly ten-
able.* Licit administration requires that the consecra-
tion be performed by a Catholic bishop, and hence priests
are never allowed to receive chrism from a heretical or
schismatic bishop.8 The vicar-general, although he may
be a bishop, cannot lawfully bless the chrism.0 Lastly,
the chrism must be blessed the same year in which it is
used, counting from Holy Thursday to Holy Thursday.
It is not allowed to use chrism blessed the year before,
except in case of necessity.7
a Vrid., KM. 7, c. 1, de tacram. a Benedict XIV, /. c.
in genere; cc. i, a, ■/<• confirm.; 4 Benedict XIV, D* Syn. Pit .-.-.,
Professio fidei Waldensibus prae- VIII, i, 4.
scripta; Uccretum pro Arm. (Den- 0 S. C. P. F., May 4, 1774 (Coll.,
linger, no. 370. 59*); Pius X, n. 553).
Syllabus, 1907, n. 44. 8 Benedict XIV, Dc Syn. Dioec,
2 Benedict XIV, " Ex quo," March II, 8, 2-j.
l, 1756. • 49: the testimonies of 7 Benedict XIV, "Anno verttntt,
the early Church see in M. O'Dwyer, Jane 19. '75°. 1 5-
Cvn fit malum, 191 5, p, 49 ff.
jle
( * ^ ^ %\jr* Original fro m
UNIVERSITY OF WISCONSIN
CANON 781 99
a
a
The proximate matter of Confirmation is the anointing.
This is done by placing three or four fingers upon the
forehead and using the thumb dipped in the holy chrism
to anoint the same. The sign of the cross in the act of
anointing is essential.8
§ 2, of can. 781 strictly forbids the use of any instru-
ment (brush or cotton) in the act of Confirmation. The
Holy Office has declared that the use of an instrument
endangers the validity of the Sacrament and ordered
secret and conditional repetition of Confirmation in casu*
The form is that prescribed by the Roman Pontifical :
* Signo te signo cruets, et confxrmo te chrismatc salutis,
in nomine Patris et Filii et Spiritus Sancti," the act of
pronouncing the three Holy Names being accompanied by
the triple sign of the cross.10
10 S. Kit. C„ May 7, 1853 (I. ft).
However the triple sign of the crou
is not required for validity.
c
—
sS. Rit C, May 7, 1853, *<* "
(Dgc. Autk. n. 301a).
»S. 0., Jan. 14. 1B85 {Coll., a.
i6jo).
-
P
G I Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
CHAPTER I
the minister of confirmation
Can. 782
§ 1. Ordinarius confirmationis minister est solus
Episcopus.
§ 2. Extraordinarius minister est presbyter, cui vel
iure communi vel peculiar! Sedis Apostolicae indulto
ea facultas concessa sit.
§ 3. Hac facilitate ipso iure gaudentv praeter S. R. E.
Cardinales ad normam can 239, § 1, n. 23, Abbas vel
Praelatus nullius, Vicarius et Praefectus Apostolicus,
qui tamen ea valide uti ncqueunt, nisi intra fines sui
territorii et durante munere tantum.
§ 4. Presbyter latini ritus cui, vi indulti, haec facul-
tas competat, confirmationem valide confert solis fide-
libus sui ritus, nisi in indulto aliud expresse cautum
fuerit.
§ 5. Nefas est presbyteris ritus orientalis, qui facul-
tate vel privilegio gaudent confirmationem una cum
baptismo infantibus sui ritus conferendi, eandem mi-
nistrare infantibus latini ritus.
§ 1 and 2. — The ordinary minister of Confirmation is
the bishop, but a priest may act as extraordinary minister
if he has received this power either by law or by a special
indult of the Apostolic See.
The bishop and he alone is the ordinary minister of
Confirmation in the Latin Church. The Greek Church
100
I Originalfrom
1 K H 'gie UNIVERSITY OF WISCONSIN
CANON 782 101
permits priests to confer Confirmation immediately after
Baptism. St Gregory the Great, upon the remonstrances
of the Sardinians, allowed priests to confirm where no
bishops were available ; 1 but this concession was a unique
one in the Occidental Church, whereas the Eastern
Church with the permission, and we dare say, approval, of
the Apostolic See, retained the custom mentioned.
Even a heretical or schismatic bishop can confirm
validly. This at least we would infer from certain de-
cisions of the Holy Office, though they mention only Con-
firmation conferred by a schismatic priest; for all of them
seem to admit at least the conditional validity of Con-
firmation administered by such a priest. Only when
there were among the conArmandi some who wished to
be promoted to tonsure or sacred Orders, was the repeti-
tion of Confirmation imposed, " conditionally and
secretly." 2
The text adds that a simple priest may administer the
Sacrament of Confirmation, provided he has received that
faculty either by law or by a special indult of the Apos-
tolic See. Who receive that faculty by lazv is stated in
§ 3. They are the Cardinals of the Holy Roman Church,
according to the privileges enumerated under can. 239,
§ i, n. 23. Cardinals, therefore, may administer Con-
firmation anywhere and to anyone, for no distinction is
made in the text. The only obligation mentioned is that
they record the fact in the book especially reserved for
recording Confirmations (can. 798). Others who may
administer the Sacrament of Confirmation by law are
abbots nulltus or prelates nullius, vicars Apostolic and
prefects Apostolic. But these three kinds of ecclesiastics
l Cf r. Reg. Greg. M., ed. Ewald- 187a; April a, 1879; Jan. 14, 1885
Hartmann, 1891, Vol. I, 241, 361 {Coll. P. F., on. 1095, 1381, 1515,
(Sept 593. May 594). 1610).
1 S. O , July 5, 1859: March ifi.
.'Ie
Original from
UNIVERSITY OF WISCONSIN
km ECCLESIASTICAL THINGS
can make valid use of this faculty only within the bound-
aries of their own territory and during their term of of-
fice. Hence, for instance, the Vicar-Apostolic of North
Carolina may administer Confirmation validly only within
his own territory. On the other hand, he may, within
that territory also confirm validly such as are not his sub-
jects by reason either of domicile or quasi-domicile, and
may licitty confirm subjects of other dioceses if they show
a letter of permission or other testimony from their own
bishop or parish priest.8 By a special indult the Guar-
dian (O. F. M.) of the Holy Sepulchre at Jerusalem may
confirm persons of the Latin Rite if no bishop of that
rite residing in his own territory is at hand.*
The faculty to confirm is sometimes granted also to
missionaries who preside over vast provinces. Thus it
was given for China and Chile.6 The condition is always
added that they must use chrism blessed by a Catholic
bishop.* In the instruction which they receive together
with the faculty, it is also added that whenever they ad-
minister this Sacrament they must mention the special
faculty in virtue of which they do so. But this is not
required for the validity of the act.T
Vicars Apostolic have this faculty by law, yet their
pro-vicars, during a vacancy, cannot confirm in virtue of
their office, much less delegate other missionaries to ad-
minister Confirmation. Any attempt to do so would be
invalid, and the Sacrament would have to be re-adminis-
tered.8 The very same decision, however, says that the
'■-.
*S. C. EE. et RR., March 30, »S. C. P. K., May 4. >774 {Coll.,
1855 (Riizarri. Collectanea, p. 637 n. 503).
f.); Dec. 11, 1897; can. 784- 1 S. C. P. F., Sept. 11, 1841 {Coll.,
* Benedict XIV, "Cum ad," Jan. n. 940).
9, 1 741: " Demandatam." Dec. aa, ■ S. C. P. F.. SepL 1a. i8ai
i?43i I 14- {Coll., n. 766). Tbii must, a
6 S. C. P. F-, July 29, 1841; fortiori, be applied to pro-prcfecU.
March 4. 1903 {Coll., nn. 9.13, 2161).
>Ie
J ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 782 103
Pontiff may grant the faculty of delegating others. The
faculty of subdelegating a priest (" benevisum sacer-
dotem") was given to the bishop of Concepcion, Chile.8
A decision of the S. C. Propaganda, with the special ap-
proval of the Sovereign Pontiff granted the faculty of
administering Confirmation to the Superior intcrnus, or
the vicar general, or the Vicar Apostolic-elect while not
yet consecrated; this faculty included the power of sub-
delegating a priest of the vacant vicariate or diocese for
giving Confirmation.10 Now a Vicar-Apostolic-elect, who
has received his letters of appointment, according to can.
294. § 2, may administer Confirmation, and therefore no
longer needs a special faculty for this purpose.
§ 4. A priest of the Latin rite, who enjoys this faculty
by virtue of an indult, can administer Confirmation
validly only to the faithful of his own rite, unless the
indult expressly grants him larger powers.
§ 5. Priests of the Oriental rite who are entitled by
virtue either of a faculty or of a privilege tc confirm chil-
dren of their own rite immediately after Baptism, may
not lawfully confer Confirmation on children of the Latin
rite.
§ 4 is taken from an Instruction of the Propaganda,
issued in 1774, and extended in 1888 by the Holy Office
to all priests who have the Apostolic indult for adminis-
tering Confirmation. But nothing is said therein of the
validity or invalidity of Confirmation administered by a
Latin priest to a person of the Greek rite. The S. Con-
gregation desired information to be gathered with regard
to the following points: To what Oriental rite the
confirmandi belonged; by whom they were confirmed,
whether by their own bishop or by priests of their own
» S. O., March 4, 1903 {Coll., n.2161).
10 July 39. '841 {Coll., n. 933).
■
ogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
. >
io4 ECCLESIASTICAL THINGS
nation ; whether they asked for Confirmation of their own
accord; whether they could conveniently receive the
Sacrament from their own bishops ; whether, finally. Con-
firmation was to be administered in a diocese where there
resides an Oriental bishop who is the Ordinary of the
conUrmandus}1 Our text briefly declares that Confirma-
tion can not be validly administered by a priest of the
Latin rite to a Catholic, whether infant or adult, of an
Oriental rite.
§ 5 strictly forbids Oriental priests to confirm infants
of the Latin rite; that Confirmation thus unlawfully ad-
ministered would be invalid, cannot be inferred either
from the text itself or from the quotation given in Cardi-
nal Gasparri's edition. On the contrary, the validity
seems to be assured. Nefas is a strong term, but it can-
not be stretched so as to involve invalidity.
Ruthenian priests of the Oriental rite would incur sus-
pension a divinis ipso facto*2 but this supposes only an
illicit, not an invalid act. When the question was pro-
posed to Rome, whether Oriental priests who are au-
thorized to baptize babies of the Latin rite, may also ad-
minister Confirmation to the same, the answer was,
negative ct ad mentem. The mind of the Apostolic See
was that the Oriental bishops should restrain their priests
from such unlawful administration, which had been often
and strictly forbidden by the Holy See. To the further
question whether Confirmation thus administered should
be conditionally repeated, the answer was, non expedire,
except in the case of those who are to be promoted to
tonsure or sacred orders, and then only conditionally and
secretly.13 Whether the priests of the Greek-Ruthenian
11 S. C P. F.. May 4, i774 (.Coil., U& O., J*n. 14. 1B85 {Coll., o.
n. 501). "630).
12 S. C P. F., July 5. 1886 ad 1
(Coll, a. i6*o>.
►ogle
£ " ^ •. -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 782 105
rite residing in the United States can validly administer
Confirmation to the faithful of their own rite, seems
doubtful. The decree " Ea semper" of Pius X14 ex-
pressly denies the validity of such a Confirmation. The
decree of Aug. xj, 1914, does not touch this subject, nor
is there any such clause to be found in the decree of Aug.
18, 19 1 3, for the Ruthenian Bishop in Canada. Hence
we hesitate to deny the validity, as the later decree con-
tains nothing to the effect.18 The Greek priests of Italy
were " expressly forbidden " (expresse intcrdictum) to
administer Confirmation even to the infants of their own
rite, as this power was reserved to the bishops of the
Latin rite, under whose jurisdiction they lived.16
This, then, is the canonical status of the minister of
Confirmation. The underlying theological question is a
rather vexed one and would demand a more elaborate
investigation. For the question would have to be solved :
Does the power of conferring Confirmation emanate from
the power of Holy Orders, or from jurisdiction? What
does the priest receive by delegation? Is it a new power
of Order, or is it power of jurisdiction? It cannot be an
extension of the priestly character, making it episcopal
for the time, because the episcopal character is conferred
by ordination, not by a mere papal letter.11 Benedict
XIV, who devoted much study to this controversy,18 sup-
poses tacit or express reservation or limitation of the
power of confirming made by the Apostolic See in favor
of bishops, and continues: Although to confirm is an
act of the episcopal order, the validity of whicti does not
depend on the will of the Pontiff, yet to delegate to a
14 June 14. 1907. art 4- i* Cfr. De Syn. Dioee., 1. VII, 8,
16 Am. Eccl. Rrv., Vol. 37, 516 y. Idem, "Ex tuis prccibns," Nov.
ff.; Vol. 51, 586 ""■: Vol. 49. 593 & i*. *748, 5 9 to Abbot Engclbert of
10 Benedict XIV, " Etsi Pas- Kempten. who received the faculty
ioralis," May 36, 174a, S III, 1. of confirming bis own subjects and
17 O'Dwyer, /. c, p. 65 f. thoie of the abbey church.
ioi rgle
Original from
UNIVERSITY OF WISCONSIN
io6 ECCLESIASTICAL THINGS
simple priest the power of performing such an act be-
longs to jurisdiction rather than to order. The jurisdic-
tion of the bishop is subject to the Supreme Pontiff
in such a manner that the latter may. by his authority
and command, limit or take it away for a just reason.
This, he says, is clearly the opinion of St. Thomas, who
says that, as far as the real body of Christ (viz., the
Holy Eucharist) is concerned, priests have equal power
with bishops, whereas in regard to His mystic body
bishops are superior to priests; and since the plenitude of
power resides in the Supreme Pontiff, he may confer a
power belonging to a higher rank on clergymen of in-
ferior rank.19 It would be difficult to assign the time
when such a reservation of power was made concerning
the Greek priests. With regard to the Latin clergy Bene-
dict XIV could point to the letter of Innocent I (401-
417) to Decentius of Gubbio. But as Gregory I re-
versed that general prohibition, it seems more natural to
assume that the limitation or withdrawal of this restric-
tion 20 was first introduced by custom and only at a later
time determined by positive law for the Western Church,
while in the Eastern Church, where children were con-
firmed immediately after baptism, no limitation was made,
except in regard to subjects of the Latin rite. If it be
asked, What does the delegation by the Pope to a simple
priest of the power of conferring Confirmation imply?
we answer: Not the conferring of a special dignity,21
but merely an extension of the power, or faculty, or au-
thority -2 of confirming. This delegation, however, is
18 Lib. IV, Dist. 7, q. J, art U manly from jurisdiction, and there-
gla. 3: Summ* Thiol., Ill, q. 72, fore the highest diflnity ii that of
art. 11. the Pope, in whom reside* the pleni-
aoO'Dwyer, /. c, p. 17J. tude ol power, which chiefly indi-
21 Thui Lehmkuhl, Thiol. Moral., catei and signifies jurisdiction.
II, n. 99. But this is hard to under- 22 AH these terms occur in the
stand, because dignity results pri- documents.
Go >gle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
■
9
CANON 783 107
limited cither territorially, as for vicars-Apostolic, pre-
fects Apostolic, prelates nullius, or personally as regards
Latin priests with respect to persons of the Oriental Rite.
If a curious reader would ask: Whence the difference?
we should answer: The powers given to bishops and
priests up to the beginning of the third century were not
precisely determined, as the example of the chorepiscopi
shows. The final answer, of course, must be sought in
the theory of St. Thomas, that the power of confirming
concerns the mystic rather than the real body of Christ,
in other words, is directly connected with jurisdiction and
rests fundamentally on the power of the priesthood. To
us no other solution seems acceptable, especially in con-
sideration of the fact that Rome has granted to bishops
the faculty of subdelegating or delegating any priest they
choose to administer Confirmation.
the bishop's power
Can. 783
§ x. Episcopus in sua dioecesi hoc sacramentum
etiam extraneis legitime ministrat, nisi obstet ex-
press* proprii eorum Ordinarii prohibitio.
§ 2. In aliena dioecesi indiget licentia Ordinarii loci
saltern rationabiliter praesumpta, nisi agatur de pro-
priis subditis quibus confirmationem conferat privatim
ac sine baculo et mitra.
§ 1. A bishop may lawfully administer the sacrament
of Confirmation in his own diocese, even to such as are
not his subjects, unless their Ordinary has issued a spe-
cial prohibition to the contrary.
§ 2. To confirm in a strange diocese he needs the at
least reasonably presumed permission of the local Ordi-
jle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
108 ECCLESIASTICAL THINGS
nary, unless he confirms his own subjects, in which case
he is not allowed to use the pastoral staff or mitre.
Staff and mitre are the insignia of pontifical jurisdic-
tion which no bishop may employ in another bishop's dio-
cese without the other's permission. za The Vicar-Capitu-
lar must ask a bishop to confer Confirmation. This
would offer an occasion for a presumed permission, viz.,
if the administrator would call on a bishop to confer
orders on the clerics of a vacant diocese, the bishop thus
called for ordination could also licitly confirm. Absence
and sickness would also be presumed reasons. If, how-
ever, a bishop would publicly declare that he would con-
firm only his own subjects to the exclusion of strangers
in or outside his diocese, Confirmation bestowed on such
non-subjects who presented themselves stealthily would
be invalid.2*
SI
It may he added that a metropolitan is not entitled to
administer Confirmation in the dioceses of his suffragan
bishops without their special permission."
Can. 784
Presbytero quoque licet, si apostolico locali privi-
legio sit munitus, in designato sibi territorio confix-
mare etiam extraneos, nisi id ipsorum Ordinarii ex-
presse vetuerint.
A priest who has an Apostolic local privilege empower-
ing him to administer Confirmation may licitly confirm
subjects not his own in the territory assigned to him,
38 S. Rit. C, April 14, 1877 (Dec. because of lack of the necessary in-
Auth., n. 3416): S. C. C. Aug. 2, tentioo the S. Cong, decided nega-
1506. tively.
34 S, C EE. et RR., Aug., 1682 25 S. C. EE. et RR., April 18,
(Ferraris, Prompta Bibliothtca, 3. 1599 (Ferraris, /. c, art. II, n. 9).
v. " Confirmatio," art. II, n. 14),
§le
Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 785 109
provided the Ordinaries of the respective confirtnandi
have not expressly forbidden it. Hence, as already
stated, such priests should procure testimonial letters
from the Ordinaries whose subjects they confirm.24 Note
the words, " locali privilegio" A local privilege is an in-
dult given for a certain territory or district, whether large
or small. Sometimes such a privilege is attached not to
a territory, but to persons. Thus, for instance, an abbot
received from Pope Benedict XIV the privilege to confer
Confirmation on " the subjects of the aforesaid abbey and
on the parishioners of the abbey-church." This was a
personal privilege, restricted to the persons named and
could not validly be extended to others who were not
subject to the abbot.*7
duty of the bishop
Can. 785
§ z. Episcopus obligations tenetur sacramentum hoc
subditis rite ct rationabilitcr petcntibus conferendi,
pracsertim tempore visitationis dioecesis.
§ a. Eadem obligatione tenetur presbyter, privilegio
apostolico donatus, erga illos quorum in favorem est
concessa facultas.
§ 3. Ordinarius, legitima causa impeditus aut pote-
state confirmandi carens, debet, quoad fieri possit, sal-
tern intra quodlibet quinquennium providere ut suis
subditis hoc sacramentum administretur.
§ 4. Si graviter neglexerit sacramentum confirma-
tionis suis subditis per se vel per alium ministrare,
scrvetur praescriptum can. 274, n. 4.
a« S. C. EE. ct RR., March 30, 37 " Supremo," April a6, 1749,
1855 (Bizzarrv, Collectanea, p. 636 | 3.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
no ECCLESIASTICAL THINGS
Every bishop is in duty bound to administer this Sacra-
ment to those of his subjects who becomingly and reason-
ably ask for it, especially at the time of the canonical
visitation. Priests who are endowed with an Apostolic
privilege have the same duty towards those in whose
favor the faculty was granted. This canon must be com-
pared with Canons 786-788, which deal with the subject
of Confirmation. Those ask for Confirmation "rite et
rationabilitcr" who are endowed with the qualities men-
tioned in said canons ; for duty and right are correlative
terms.
The question whether a bishop or priest who is em-
powered to administer Confirmation is bound in con-
science to confirm such as suffer from a contagious dis-
ease, was answered by Benedict XIV, who says it would
be difficult to prove such an obligation, since this sacra-
ment is not absolutely necessary for salvation, and the
example of St. Charles Borromeo was a heroic one, from
which no strict obligation can be deduced. But he adds
that if Confirmation were administered to such unfortu-
nates, there would be no reason for using an instrument,
brush, sponge or cotton, because the act is very short.28
The time for administering Confirmation is the canoni-
cal visitation, on which occasion the bishop is obliged
to confirm.29
§ 3 says that an Ordinary who is lawfully prevented
from, or does not enjoy the power of, administering Con-
firmation, should, as far as possible, take care that this
Sacrament is conferred at least every five years. Should
he, continues § 4, grievously neglect this duty of confirm-
ing his subjects, either personally or through another, the
28 De Syn. Dioec, XIII, 19. in. if no one asks for Confirmation, or
6, 13. if Confirmation was administered a
2B S. C Cm July 18, 1699 (Rich- short time before, there would be no
tcr, TriJ., p. 47. n. 3). Of course, obligation.
§le
£ " ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
■
pi
-
CANON 785 in
metropolitan should see to it that this matter is attended
to and inform the Holy See. Legitimate causes prevent-
ing a bishop from administering Confirmation within the
term of five years, would be protracted illness, exile, and
detention by higher superiors. The vicar-capitular has
not the power to confirm, but should invite an outside
bishop if this Sacrament has not been administered in the
diocese for a long time.80 If grievous neglect has crept
into a suffragan's diocese, the metropolitan may compel or
admonish the Ordinary of the same to comply with the
law, but he may not administer Confirmation without the
suffragan's permission because this case is not mentioned
among those in which the metropolitan is authorized to
supply the negligence of his suffragans.81 However, if
the canonical visitation would, upon request of the Holy
See, be performed by the archbishop, wc believe that
Confirmation would also be mentioned in the causa
probata.
aoS. Rit- C, April, 1877 (Dec. Episcopt, P. I., tit 4. nn. 1a,
Auth., n. 34<6>- 43 J ffWw ad c. », Clem. V, 7,
ai Barbosa, Dc Officio tt Pottstat* t. v. " Etiam ceUbrare."
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
|M
CHAPTER II
THE SUBJECT OF CONFIRMATION
T
Can. 786
Aquis baptisrni non ablutus valide confirmari ac-
quit ; prae terea, ut qu is licite et f rue tuose confirmetur,
debet esse in statu gratiae constitutus et, si usu ra-
tionis polleat, sufficienter instructus.
Can. 787
Quanquarn hoc sacramentum non est de necessitate
medii ad salutem, nemini tamen licet, oblata occasionc,
illud negligere; imo parochi curent ut fideles ad illud
opportuno tempore accedant.
Can. 788
Licet sacramenti confirmationis administratio con-
venienter in Ecclesia Latina differatur ad septimum
circiter aetatis annum, nihilominus etiam antea con-
ferri potest, si infans in mortis periculo sit constitutus,
vel ministro id expedire ob iustas et graves causas
videatur.
Can. 789
Confirmandi, si plures sint, adsint primae manuura
iznpositioni seu extensicni, nee nisi expleto ritu disce-
dant.
The first of these four canons embodies a deduction
from can. 737, § I, which calls Baptism the door to the
113
Go >gle
j ., Original from
UNIVERSITY OF WISCONSIN
CANONS 786-789 113
other Sacraments. One who is not yet baptised cannot
be validly confirmed because he is not yet initiated into
the Christian mysteries or incorporated in the mystic
body of Christ, which initiation or incorporation confers
the right to receive the other Sacraments. Besides, in
order to receive this Sacrament licitly and profitably, one
must be in the state of grace. For though the indelible
character is impressed even if one is not in the state of
sanctifying grace, the sacramental grace, or, as a text of
the Deere turn Gratiani says, the sevenfold grace of the
Holy Ghost with the plenitude of holiness and knowledge
and strength does not descend in Confirmation if this
Sacrament is received in the state of mortal sin.1 Be-
sides, one who has attained the age of discretion must be
sufficiently instructed in the more important truths of
faith as well as the nature and efficacy of Confirmation.
The confirmandus should know the difference between
Baptism and Confirmation, which resembles the differ-
ence between generation and growth and the distinction
between enrolling in the army of Christ and training for
active service.11 Should it happen that an adult, especially
an elderly person, has not even the intention of receiving
strength for his soul through Confirmation, the Sacra-
ment should not be administered.3
Cau. j8j says that Confirmation is relatively, not abso-
lutely necessary for salvation, and therefore must not be
neglected. A canon of Gratian * declares that no one is a
Christian unless he has been confirmed by the bishop
lC. 5, Dist. 5, de cons. Hence 2 Benedict XIV, " Etri minime,"
confession should precede Confirms- Feb. 7, 1742, I 9; " Eo quomxris
tion; cfr. Pontificate Rom., tit. De tempore, May 4, 1745, | 6.
Confirmandis ; S. O., Dec. 11, i8so a S. O., April 10, i860 (.Colt,, n.
{Colt., n. 1054). As soon a* the 1*13)-
obex (state of grievous sin) is re- * C. 6, Ditt 5, de cons.
moved, the sacramental grace re-
vives.
oogle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
ii4 ECCLESIASTICAL THINGS
with chrism. This is an exaggeration, but it indicates
the danger to which, in the opinion of the early Church,
one exposed himself by wilfully neglecting this great
Sacrament Those who were suspected of being imbued
with the errors of Wiclif and Huss were asked whether
they believed that one who spurned the Sacrament of
Confirmation committed a grievous sin.5 Our text says
that, although this Sacrament is not absolutely necessary
for salvation, no one may lawfully neglect to receive it
if offered the opportunity.8 For this reason pastors
should take care that the faithful receive Confirmation
at the proper time. An Instruction of the S. C. Propa-
ganda enjoined the missionaries of Mesopotamia to in-
struct the Nestorians, bishops as well as priests, to re-
ceive this Sacrament.7 Every pastor is in duty bound
to teach the faithful under his care not only the neces-
sity of this Sacrament, but also how to receive it
worthily.
Can. 788 mentions the custom of the Latin Church,
which differs from that of the Greek, to defer Confirma-
tion to the age of discretion, t. e., about the seventh year.8
This custom, the text says, is quite proper, but the Sacra-
mem may be administered at an earlier age if the child
is in danger of death or the minister judges that there
are other just and weighty reasons. Such reasons would
be, e. g.j great distance preventing one from reaching a
place within the time limit of five years, — surely a rare
thing.9
It may not be amiss to add what Lehmkuhl says,10 that
* Prop. 19 (Dcnzinger, n. 563). trmpore," May 4, 1745, 9 6: " At-
S Benedict XIV, " Elsi pastor- Utoe sunt," July 26, 1755, I »».
olis." May 26, 1742, 9 III, 4: • S. 0., Dec. 11, 1850, n. ia
"Gravis feccati reatu teneri." {Coll., n. 1054); S. C. G, March 1a,
7 Imtr.. July 31, 1902 {Coll, n. April 23, 1774 (Richter. Trid., p. 47,
3149). n. 1).
• Benedict XIV, ' Eo gnomiii 10 Thiol. Moral., II, n. 100.
gle
£ * ^ , %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 789 115
if the bishop would be obliged to administer Confirmation
to the dying, he would have to do so to all or none, else
there would be partiality and scandal; and if he had to
confer the Sacrament on all the sick, there would be a
great burden thrown upon him. An Oriental priest who
enjoys the faculty of administering Confirmation to-
gether with Baptism may apply this faculty not only to
his own people, but also to Catholics of another rite,
provided the tacit privilege of administering both Sacra-
ments is in vogue in that rite.u
Can. 789 provides that the confirmandi, if there are a
number of them, should be present at the first imposition
or extension of the hands, and not leave before the whole
rite or ceremony is completed.11 This is not, however,
a condition affecting validity.11
11S. O., April z», 1896 CCoM.f n. i» S. O., April 17, 187J {Coll., n.
19*6). 1383).
12 Pontificate Rom., tit De Com-
frmsndis.
G I Original from
OOglL UNIVERSITY 0FWI5C0NSIN
■
CHAPTER III
time and place of administering confirmation
Can. 790
Hoc sacr amentum quo vis tempore conferri potest;
maxixne autem decet illud administrari in hebdomada
Pentecostes.
Can. 791
Licet proprius confirmationis administrandae locus
ecclesia sit, ex causa tamcn quam minister iustam ac
rationabilem iudicaverit, potest hoc sacramentum in
quolibct alio decenti loco conferri.
Can. 792
Episcopo ius est intra fines suae dioecesis conBrma-
tionem administrandi in locis quoque exemptis.
This Sacrament may be conferred at any time, but it
is most fittingly administered in the week after Pentecost.
Whilst the Cardinal Vicar of Rome or his vicegcrente
may administer this Sacrament on any day or at any
time in the Lateran Basilica, the Cardinal Archpriest of
the Vatican Basilica may do so only during the Octave
of the Feast of SS. Peter and Paul in St. Peter's.1 The
text designates the Octave of Pentecost as the most ap-
propriate season. This praiseworthy custom may be con-
veniently observed especially in cathedral churches.
1 Benedict XIV, "Ad honorandum," March 37, 175a, | n.
Il6
G I Original from
OU^IL UNIVERSITY QFWI5C0NSIN
CANONS 791-792 117
Can. 791. Although the proper place for administering
confirmation is the church, it may also be conferred in
any other decent place, provided the minister has a just
and plausible reason for so doing. Hence Confirmation
may be administered in any private or semi-public ora-
tory, and even in private houses if they are neat and
properly kept; also, during the time of an interdict, in
an interdicted place.*
Can. 792. Every bishop has the right to administer
Confirmation within the boundaries of his diocese also in
exempt places. When certain exempt regulars, insisting
on their privileges, contended that the bishop was not en-
titled to administer Confirmation in their (parochial or
non-parochial) churches, the S. Congregation decided in
favor of the bishop, and Benedict XIV fully ratified the
respective decisions.8
When confirming the bishop may make use of throne
and baldachino and pontifical regalia.
Exempt places here are monasteries, convents, acade-
mies, colleges, churches and chapels (such as are pleno
iure incorporated) of exempt religious, or other exempt
persons ; but not the exempt territories of prelates or ab-
bots nullius, because these prelates are entitled to admin-
ister Confirmation in their own districts.
ic. 43. x, V, 39; c. ig. 6\ V, 11.
S " Firmamtii," Not. 6, 1744. I 6.
jle
Original from
UNIVERSITY OF WISCONSIN
N
■
CHAPTER IV
sponsors
Can. 793
Ex vctustissimo Ecclesiae more, ut in baptismo, ita
ctiam in coniinnatione adhibendus est patrinus, si ha-
beri possit
Can. 794
a
§ i. Patrinus unum tan turn confirmandum aut duos
praesentet, nisi aliud iusta de causa ministro videatur.
§ 2. Unus quoque pro singulis confirmandis sit patri-
nus.
■
c
A most ancient ecclesiastical custom demands that, as
at Baptism, so also at Confirmation, a sponsor be em-
ployed if possible. He should not stand for more than
one or two confirmandi, unless the minister deems it
prudent to deviate from that rule for a just cause. Each
confirmandus should have but one sponsor.
The custom of employing sponsors at Confirmation
would be very venerable indeed if a certain text of Gra-
tian1 could be ascribed to Pope Hyginus (136-140).
Doubtless the practice was universal at the beginning of
the Middle Ages. Ancient also is the custom that one
sponsor, either a man or a woman,2 stands for each confir-
tnandus. That at least one sponsor should be employed
at Confirmation is a grave obligation, unless weighty and
1 C. ioo, Dirt. 4. de cons. >C 100 l, ibid.
1X8
oogl
Original fro m
UNIVERSITY OF WISCONSIN
■
CANON 795 119
urgent reasons excuse.8 But the Roman Court will not,
— except for reasons of strict necessity {pra^cisa neces-
sitas) — tolerate the custom that one man stands for
all the confirtnandi, and one woman for all the confirm-
andae.
It is left to the minister of Confirmation to decide
whether there is such a strict necessity.* If only Sisters
are at hand, they may be employed as sponsors for the
confirmandae* Now-a-days when spiritual relationship
is no longer contracted as an impediment to marriage,
the necessity of using only one sponsor for a whole class
of males and females respectively seems to have abated.
On the other hand, the rule that each confirmandus
should have but one sponsor must be obeyed.6
requisites of sponsorship
Can. 795
Ut quis sit patrinus, oportet:
z.° Sit ipse quoque confirmatus, rationis usum as-
secutus et intentionem habeat id munus gerendi ;
2.0 Nulli hacreticae aut schismaticae sectae sit ad-
scriptus, nee ulla ex poenis de quibus in can. 765, n. 2
per sentcntiam declaratoriam aut condemnatoriam
notatus ;
3.0 Non sit pater, mater, coniux connrmandi ;
4.0 A confirmando eiusve parentibus vel tutoribus
a
vel, hi si desint aut renuant, a ministro vel a parocho
sit designatus;
as. O., Dec 11, 1850; Sept. 5. Auth., n. 3670); these religious,
1877; S. C. P. F., May 4, 1774 however, should have the permission
{Coll., n. 1054, 1480, 503). of their superiors and Ordinary.
• S. O., Nov. 20, 1873 (Coll., n. S. O., Sept. 3. 1871 (Coll., n. 198).
1408); S. C. C. June 14. July ia, t C. 3. 6# IV. 3: S. O.. Nov. 26,
1825 (Richter, Trid., p. 47. n- 2). 1873 (Coll n. 1408).
OS. Riu C, Feb. 15, 1887 {Dn.
>Ie
1 , Original fro ni
UNIVERSITY OF WISCONSIN
■
120 ECCLESIASTICAL THINGS
5.° Confirmandum in ipso connrmationis actu per se
vcl per procuratorem physice tangat.
To be able to serve as sponsor:
i.° One must be confirmed, have the use of reason and
the intention to assume the office of sponsor.
2.0 He or she must belong to no heretical or schis-
matic sect, nor be under any of the penalties mentioned
in can. 765, n. 2.
3.0 He or she must be neither the father nor the
mother nor the consort of the one to be confirmed.
4.0 He must be appointed sponsor either by the
confirniandus, his parents or guardians, or, if these should
fail or refuse to appoint a sponsor, he is to be designated
by the minister or pastor.
5.0 The sponsor must physically touch the confirman-
dus in the act of confirmation, either personally or by
proxy.
It is unnecessary to dwell on these requisites, which
are about the same as explained under can. 765. The
act the sponsor is called upon to perform is sometimes
called liyare, to bind,7 because he was supposed to tie a
band around the forehead of the confirmandus after he
had been anointed with -chrism. However the proper act
of sponsorship is laying the right hand on the right shoul-
der of the confirtnandus. It is not necessary to put one's
foot upon that of the godchild.8 The act may be done
by proxy, says the text. Thus, if the bishop who con-
firms a child wishes to be at the same time his godfather,
he must appoint another to represent him, not confirm
1 Hence the verse: "Ligans, h- sponsor, the god-child, and the lat-
ga*ut, Ugatiqut parentn," which ex- ter's parents.
presses the relation ship between the 8 S. Rit 0, Sept. 20, 1749, ad 6
{Dec. Auth., n. 2404).
>Ie
v ,1,., Original from
UNIVERSITY OF WISCONSIN
a
N
■
CANON 796 121
him with one hand, and hold him with the other.9 It
may be added that the custom of choosing the name of a
Saint other than the baptismal one at Confirmation is
permissible, but by no means necessary.10
requisites of licit sponsorship
Can. 796
Ut quia licitc ad patrini munus admittatur, oportet :
i.° Sit alius a patrino baptismi, nisi rationabilis
causa, iudicio ministri, aliud suadeat, aut statim post
baptismum legitime confirrnatio conferatur;
2.0 Sit eiuedem sexus ac confirmandus, nisi aliud
ministro in casibus particularibus ex rationabili causa
videatur;
3-u S erven tur praeterea praescripta can. 766.
To be licitly admitted to sponsorship at Confirmation :
i.° One must be different from the baptismal sponsor,
unless there be a plausible reason to disregard this rule,
or Confirmation is legitimately administered immediately
after Baptism.
2.0 The sponsor must be of the same sex as the one
to be confirmed, unless the minister has a good reason
to depart from this regulation in an individual case.
3.0 The other rules mentioned in can. 766 must be
observed.
What was said under can. 766 will suffice on this sub-
ject. Let us cite one decision of the S. C. C. Certain
pastors having complained to the bishop that they had
vainly endeavored to eradicate the custom of having the
" This seems to hive been the cub- to S. Kit. C.f Sept. 20, 1749, ad 7
torn in ■ certain diocese; S. Kit. C.f (Dtc. Auih. a. 2404).
Tone i4l 1873. «d III {Dec. AutK,
n. 33°5)-
>Ie
J , Original fro m
UNIVERSITY OF WISCONSIN
122 ECCLESIASTICAL THINGS
same sponsors at Baptism and Confirmation, the bishop
thought it best to tolerate the same. But the S. Con-
gregation decided that, though it may be tolerated, this
custom should be gradually abolished.11 A plausible rea-
son for which a man might be permitted to act as sponsor
for a girl would be a special blood relationship, a happy
coincidence, or the desire of the bishop to act by proxy
as sponsor for a girl or young lady.12
SPIRITUAL RELATIONSHIP
•a
Cap. 797
Etiam ex valida confirmatione oritur inter confirma-
tum et patrinum cognatio spiritualis, ex qua patrinus
obligatione tenetur confirmatum perpetuo sibi com-
mendatum habendi eiusque christianam educationem
curandi.
Validly conferred Confirmation entails a spiritual rela-
tionship between the confirmed person and the sponsor,
in virtue of which the latter is obliged to take a special
and perpetual interest in the welfare of his godchild and
to see to it that he or she receives a Christian education.
However, according to can. 1079, this spiritual relation-
ship no longer constitutes a matrimonial impediment and
is therefore restricted to the merely spiritual part of
education in case the parents fail to do their duty. That
godparents, if able, may and should assist their spiritual
children in case of need is a dictate of natural reason.18
■
11 S. C. C, Feb. 16, 1884 (Coll. which must be understood according
P. F., n. tens'). to the rules of charity. It is true
12 This seems implied in the de- charity, such as preached by Christ
cision of the S. Rit. C, June 14, and His Church, yet often neglected,
1873, id III {Dec /tuth., a. 3305). and now-a days almost unknown, or
13" Sibi commendatum habert" at least not practised,
signifies a kind of protectorship.
"-.
*Ie
A £ * ^ v -.!,» Original from
UNIVERSITY OF WISCONSIN
CHAPTER V
RECORD AND PROOF OF CONFIRMATION
:
■
RECORD
Can. 798
Nomina ministri, connrmatorum, parentum et patri-
norum, diem ac locum confirmationis parochus in-
scribat in peculiari libro, practer adnotationem in libro
baptizatorum de qua in can. 470, § a.
■
9
Can. 799
Si proprius confirmati parochus praesens non fuerit,
de collata confirmatione minister vel per se ipse vel per
alium quamprimum eundem certiorera faciat.
The Rituale Rowanum s prescribes that a Confirmation
record be kept in every church in which this Sacrament
is administered. This book, according to our canon,
must contain the names of the minister, of the persons
confirmed and their parents and sponsors, as well as the
date of Confirmation. All these entries must be made by
the pastor in a book specially set apart for the recording
of Confirmations. Besides, he must also enter every
Confirmation in the baptismal record.
Can. 799 enacts that if the parochus proprius of the
confirmatus was not present at the Confirmation, he
a
c
1 Tit. X, e. 3, prescribe* five For the form of entering Con firm a-
books: for Baptisms, Confirmations, tions see c. 4 (ed. Pustet, 1913, p.
Marriages, Census, and Deaths. 3*8 1).
123
jle
f^ ^ s %\^ Original from
UNIVERSITY OF WISCONSIN
N
■
124 ECCLESIASTICAL THINGS
should be informed as soon as possible of the fact by
the minister or by some other person.
PROOF
Can. 800
Ad collatam confirrnationem probandam, modo
nemini fiat praeiudicium, satis est unus testis omni ex-
ceptione maior, vel ipsius confirmati iusiurandum, nisi
confirmatus fuerit in inf antili aetate.
When no prejudice to others is involved, one trust-
worthy witness is sufficient to prove the fact of Confir-
mation. Thus the testimony of the official or authentic
record kept in the diocesan archives would be entirely
sufficient as also the pastor's testimony, given under his
signature and seal. Besides, says the text, the sworn
statement of the one who was confirmed must be admitted
as proof, unless he received the Sacrament before he
reached the age of discretion.
G I Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
■
Q
TITLE III
THE HOLY EUCHARIST
Can. 8oi
In sanctissima Eucharistia sub speciebus panis et
vini ipsemet Christus Dominus continetur, offertur,
lumitur.
In the most Holy Eucharist Christ the Lord Himself
is contained, offered, and received, under -the species of
bread and wine. This is an article of faith and as such
properly belongs to dogmatic theology. The Real Pres-
ence of Christ in the Eucharist has been the belief of the
Catholic Church for nineteen hundred years, despite all
calumnies, assaults, and blasphemies. The Code, accord-
ing to the twofold aspect of this holy Sacrament, in fieri
and in facto esse, treats of the Holy Eucharist as a
Sacrifice and as a Sacrament instituted for the spiritual
life of the faithful.
125
oogle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER I
THE HOLY SACRIFICE OF THE MASS
The seven Sacraments are intended for all the faithful,
and the ancient adage : " Sacrammta propter homines "
holds true with regard to all, at least in general. But
the membership of the Church is essentially distinguished
into clergy and laity, and hence the Church that sancti-
fies is distinct from the one that is sanctified (ecclesia
sanctificans et sancttficata). This fact is most conspicu-
ous in the Holy Eucharist, particularly in the Sacrifice
of the Mass, where the hieratic character of the priest-
hood appears most obviously. Hence the Code naturally
treats first of
ARTICLE I
the celebrant of the mass
Can. 802
Potestatcm offerendi Missae sacrificium habent soli
sacerdotes.
Priests alone have the power of offering the Sacrifice
of the Mass.
It is not necessary to enter into the controversy re-
garding the universal priesthood of all the faithful.1 The
distinction between clergy and laity rests on a firm bibli-
cal and traditional basis. Only those may offer up gifts
and sacrifices who are called by God and validly or-
1 1 Pet. II, 9 »• abuwd or wrongly interpreted.
126
* I InnoItf> Original from
,00cVC UNIVERSITY OF WISCONSIN
N
■
CANON 803 127
dained,* and the fiction of an assembly of predestined
or an invisible congregation has never had a place in
the Church of Christ." The phrase soli sacerdotes ex-
cludes the inferior clergy as well as laymen, who, should
they attempt to say Mass sacrilegiously, would not only
act invalidly, but also incur severe penalties *
concelebrating forbidden
Can. 803
Non licet pluribus sacerdotibus concelebrare, prae-
terquam in Missa ordinationis presbyterorum et in
Missa consecrationis Episcoporum secundum Pontifi-
cate Romanum.
Concelebrating takes place if two or more priests con-
secrate the same bread and wine or, as at the consecration
of bishops, two hosts and the same wine in one chalice.
It is, therefore, not a mere recital of the same prayers in
general, and of the formula of consecration in particular,
but a distinct rite,5 which was once common in both East
and West and is still in vogue in the Orient in cities
where there is but one church. All the priests gather
around the bishop, with whom they recite the prayers of
the Mass and receive the Holy Eucharist under both spe-
cies.8 In the Latin Church concelebration is allowed and
prescribed only at the ordination of priests and the conse-
cration of bishops according to the Roman Pontifical.1
Under Innocent III (1198-1216) concelebration was cus-
3 Heb. V, 1. 5 Benedict XIV, De Sacrificio Mis-
* Cf. Trid., >ess. 22, De Saeri- sae, I. Ill, c. 16. n. 5.
firifi Mirsar, c. 1, 2: can. a: km. fl Ibid., n. 1: Cath. F.ncycl., Vol.
33, De Ordme, c. r. IV, 190, j. v, " Concelebration."
« The penalty is excommunication T Tit. De Ordinibus Conferendis;
sPeeiali modo reserved to the Holy tit. De Ordinatione Presbyter*; tit.
See, Can. 2332. De Consecratione Elccti in Episco-
pHtn.
jle
Original fro m
UNIVERSITY OF WISCONSIN
128 ECCLESIASTICAL THINGS
tomary on higher feasts, but now it is forbidden in the
Latin Church (this canon does not concern the Oriental
Rite) ' except on the two occasions mentioned.
Benedict XIV gives some practical hints for newly
ordained priests how to concelebrate with the bishop. He
-
says that the Roman Pontifical prescribes that the bishop
should recite the words of consecration "slowly and in a
rather loud voice " so that the neomysts may follow, and
adds that the latter should have the intention of conse-
crating the same bread and wine together with the bishop.
This is sufficient, and they need not worry about the
difficulties proposed by some authors. Those difficulties
are absurd because the bishop is the main consecrator
and the priests merely concur in the act as accessories;
the form they employ is morally one with the form pro-
nounced by the bishop, and consequently, even though
they finish the words of consecration a little before or
after the bishop, the consecration is valid.' The same
Pontiff, who was a great canonist, also says that there is
no reason for depriving a priest thus celebrating with his
bishop of the right of accepting a stipend.10
the celebret
Can. 804
§ 1. Sacerdos extraneus ecclesiae in qua celebrare
postulat, exhibens authenticas et adhuc validas litteras
commendatitias sui Ordinarii, si sit saecularis, vel sui
Superioris, si religosus, vel Sacrae Congregationis pro
Bcclesia Orientali, si sit ritus orientalis, ad Missae ce-
lcbrationcm admittatur, nisi interim aliquid eum com-
B Benedict XIV, ** Allatat sunt/' »£»* Sacrificio Missa*, I. III. c.
July s6, 1735, I jS. 16, n. 7.
10 Ibid., n. 10.
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 804 129
misissc constet, cur a Missae celebratione repclli de-
beat.
§ a. Si iis litteris careat, sed rectori ecclesiae de cius
probitate apprime constet, poterit admitti ; si vero rec-
tori sit ignotus, admitti adhuc potest semel vel bis,
dummodo, ecclesiastica veste indutus, nihil ex celebra-
tione ab ecclesia in qua litat, quovis titulo, percipiat,
et nomen, omcium suarnque dioecesim in peculiari
Iibro signet.
§ 3. Pcculiares hac de re normae, salvis huius can-
onis praescriptis, ab Ordinario loci datae, servandae
sunt ab omnibus, etiam religiosis exemptis, nisi agatur
de admittendis ad celebrandum religiosis in ecclesia
suae religionis.
Q
The Council of Chalcedon, A. D. 451, forbade clergy-
men to minister in a strange district without letters of
recommendation.11 The Decretals demanded that the
testimonies of five bishops should be asked of a clergy-
man who came from across the sea or was otherwise
entirely unknown.12 This is now reduced to what we
call celcbret or pastor bonus or litterac commendatitiae,
which are given for the secular clergy by the Ordinary
and for the religious by the religious superior. The
celcbret merely attests the bearer's rank in the hierarchy
and his freedom from ecclesiastical censure. It must
be per sc demanded from any priest who wishes to cele-
brate in a church not his own (extraneus ecclesiae). If
he belongs to the Oriental rite, he must show letters from
the S. Congregation for the Oriental Church. This rule,
we suppose, applies only when a priest of the Oriental
rite wishes to say Mass in a church of a different rite
and diocese, otherwise it would be difficult to understand
g
Xi Cf. c. 7, Di»t. ft. 13 C. 7, 1, X, I, *a.
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
x3°
ECCLESIASTICAL THINGS
why priests of the Oriental Rite are treated more rigor-
ously than others. The S. C. Propaganda only demands
letters given by the respective bishop, or vicar, or prefect
Apostolic.13 Priests who come from an Eastern province
to our country need letters from the S. Congregation for
the Oriental Church. This was already laid down in the
canons on incardination.14
Concerning Ruthenian Priests in the U. S. and Can-
ada it seems that the cclebret given them by the re-
spective Ordinary or Ruthenian bishop suffices; at least
this may be concluded from art. II of the decree of the
S. C. Propaganda, Aug. 17, 1914, which says that the
Ruthenian bishop may not grant permission to say Mass
or perform sacred functions to a strange priest who was
neither called by him or sent by the S. Congregation. A
priest who was properly admitted by the Ruthenian
Bishop, therefore, is under his jurisdiction in every-
thing and needs a celebret only from him. This inter-
pretation is not opposed to § I of can. 304, because the
Ruthenian bishop is under the immediate jurisdiction of
the Holy See."
Secular priests receive their celebret either from the
diocesan chancery or the vicar-general.1-.
Religious, of whatever denomination, with simple and
solemn profession, must obtain a celebret from their own
superiors.
IT
1 a April ao, 1873 (Coll, n. 1400).
1* The documents concerning the
Ruthenian Rite in the Amer, Ecc,
Rev. : — Piua X, *' Ea temper,"
June 14, 1907 (Vol. 37, s*3 «".);
Letter of the A post. Delegate. Aug.
35, 1913 (Vol. 49, 473 f.); Decree
of S. C. P. F., Aug. 18, 1913. for
Canada (Vol. 49. 593 *■) i Decree
of S. C. P. F., Aug. 17, 1914. for
the U. S. (Vol. 51, 586 ff.)
IBS. C. P. F., Aug. 17, 191*.
art. 3 (Amer. EccL Rev., 51, 587}.
ia Cf. Benedict XIV, Inst., 34, fi
1, where he says that even rural
deans may issue such a document.
This may be accepted if the Ordi-
nary grants him such power, other-
wise the text excludes deans.
iTCf. Benedict XIV, " Apostoli-
cum Minieterium," May 30, ir53. '
6: " Quam Crave," Aug. 2, 1757.
►ogle
Original from
UNIVERSITY OF WISCONSIN
CANON 804 131
a
Members of societies without vows, or only the one or
other vow, who are not religious in the proper sense, must
have a celebret from the local Ordinary.
A celebret is authentic if it is signed and sealed by the
Ordinary or religious superior. All such are presumed
to be genuine until the contrary is proved." How long
they remain valid, adhuc validae litterae, is not stated in
our text. However, celebrets are generally issued for
one year, but the Ordinary or superior may lengthen or
shorten the term. A canonical impediment may be con-
tracted within three or six months.19 Hence the clause:
" unless it has become known in the meantime that the
bearer has committed an act which would render it ne-
cessary to debar him from saying Mass." Where this
is the case, a priest should be refused permission to say
Mass in spite of a celebret. Thus if the rector of the
church where the priest desires to say Mass knows of a
suspension or ecclesiastical penalty or irregularity in-
curred by that priest, he would have to refuse him per-
mission. But he could not make use of knowledge ac-
quired in confession.20 This is expressed in the words,
commisisse constet, which imply proof to be brought.
§2. If a priest has no celebret, either because he has
forgotten or lost it, but is known to the rector of the
Church where he wishes to say Mass as a priest in good
standing, he may be permitted to say Mass. Even if a
priest is unknown to the rector, he may be permitted to
say Mass once or twice, provided he is dressed in the
ecclesiastical garb, accepts nothing for saying Mass from
the church in which he celebrates, and duly enters his
a
c
I u, which mentions only regular*. l» Can. 904, 9 I.
but a fortiori includes all other re- 20 S. O., Nov. 18, 1682. prop.
Hgious. projeripta (Dcnxinter, n. 1087).
18 Can. 1813 *•
>Ic
£ " ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
i32 ECCLESIASTICAL THINGS
name, office and diocese in the book kept for that pur-
pose.
This is a reminder that the ecclesiastical dress should
be worn when demanding permission to celebrate Mass.
The ecclesiastical dress here primarily means the cassock,
but it may also signify the ecclesiastical travelling suit,
inclusive of the Roman collar. A cassock may be had in
the sacristy of almost any church.
§ 3. Any special diocesan statutes concerning this mat-
ter, which are in keeping with the present law, must be
observed by all, including exempt religious, unless they
wish to say Mass in a church of their own institute.
This section extends to all religious, properly so-called,
the privilege of saying Mass in a church of their own
order or congregation without being bound by diocesan
rules, which was formerly a prerogative of exempt re-
ligious only." But if a religious wishes to say Mass in a
church in charge of secular priests, or of religious of a
different order or congregation, he is bound not only by
the general law of the Church, but also by the particular
laws of the diocese." It is evident that the religious
superior of the church where the religious wishes to say
Mass is entitled to demand the celebret.23
a
the obligation of saying mass
Can. 805
Sacerdotes omnes obligations tenentur Sacrum
litandi pluries per annum; curet autem Episcopus vel
Superior religiosus ut iidem saltern singulis diebus
dominicis aliisque festis de praecepto divinis operen-
tur.
ai S. C C, July 27. >6a6; S. C. 118); Benedict XIV, " Quam grmut,"
P. F., July 28, 1626 (Coll., n. 25). Aug. 2, 1757, | 11.
»S. 0., Aug, n, 1641 (Coll., n. 21 S. O., /. c.
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 805 133
All priests are obliged -to say Mass several times a
year. But the bishop as well as the religious superior
ought to sec to it that the priests subject to their juris-
diction celebrate the Sacred Mysteries at least on all Sun-
days and holy-days of obligation.
Innocent III complains woefully of some prelates who
would not celebrate Holy Mass even four times a year."
His complaint led canonists and theologians to speculate
how many Masses a priest would have to say every year
to avoid grievous sin ; for no canonical penalty is men-
tioned in Pope Innocent's canon. Benedict XIV did not
settle the question, though as private author he held that
it would be more in conformity with the decrees of
Trent if priests said Mass on Sundays and holy-days of
obligation, and whenever the Holy Viaticum had to be
administered to a sick person.25 The same Pontiff held
that a superior may command his subjects to say Mass,26
which no doubt is true if there be any outward reason
for giving such a command, for instance, Mass for the
community, or in time of calamity. But it would cer-
tainly exceed the power of a bishop or religious superior
to command his subjects to say Mass every day. No
canonist or theologian has ever defended such a universal
and constant obligation.
Note that our text speaks only of priests as such.
The case is different if the obligation of saying Mass
arises from reasons of office or benefice. But not even
pastors or beneficiaries can be obliged to say Mass every
day."
24 C. 9, X, III, 41. If we press 2« Dt Sacrificio Missat. 1. Ill, c.
the words of St. Thomas. Sent.. IV, 1. n. S. The Carthusians said Mass
diat. 13, qu. 1, art. 2; Summa, III, only on Sundays, lb., I. Ill, c. 2,
q. 8j, art. 10, three times: Christ- n. 5.
mas. Easter and Pentecost, would be S7 S. C. C, Sept. 18, 1683: Ben-
sufficient, edict XIV, Dt Sacrificio Missmt, L
20 Dt Sacrificio Miitat, 1. Ill, c. Ill, c. 3, n. 7 S.
I.
^
f^ ^ 1 -J,-. Original fro ni
UNIVERSITY OF WISCONSIN
■
p
134 ECCLESIASTICAL THINGS
bin a ting
Can. 806
§ i. Excepto die Nativitatis Domini et die Comme-
morationis omnium fidelium defunctorum, quibus fa-
cultas est ter off crendi Eucharisticum Sacrificium, non
licet sacerdoti plures in die celebrare Missas, nisi ex
apostolico indulto aut potestate facta a loci Ordinario.
§ 2. Hanc tamen facultatem impertiri nequit Ordi-
narius, nisi cum, prudenti ipsius iudicio, propter
penuriam sacerdotum die festo de praecepto notabilis
fidelium pars Missae adstare non possit; non est autem
in eius potestate plures quam duas Missas eidem sacer-
doti permittere.
With the exception of Christmas and all Souls' Day,
on which every priest may, if he wishes, say three
Masses, no priest is allowed to say more than one Mass
a day unless a papal indult or faculty from the Ordinary
permits him to do so.
The Ordinary cannot grant this faculty unless he pru-
dently judges that there is such a lack of priests as to
leave a considerable number of the faithful without
Mass on a holyday of obligation.
No Ordinary can give permission to a priest to say
more than two Masses on one day.
Alexander II (1061-73) gives the reasons for this
prohibition. " It is no small thing," he says, " to say
Mass, and happy is he who says one Mass worthily."
To say several Masses a day for the sake of gain or to
be nattered by the worldly, he adds, is to merit damna-
tion.28
18 C. 53, Dirt. 1, di cons.: sumunt plures Miisas non aestimo
" Qui vtro pro pecuniis aut alula- evadere damnotionem," Cfr. c. 12,
lionibus saecularium una die prae- X, III, 41.
*Ie
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 806 135
The custom of saying three Masses on Christmas is
very old, as St. Gregory's homily for that feastday
proves, and was acknowledged as lawful by the Decretals,
which also permit the celebration of more than one Mass
in case of necessity."
The custom of saying three Masses on All Souls' Day
was observed in Valencia and Catalonia since the pontifi-
cate of Julius III (1550-55), and Benedict XIV extended
the privilege to the entire Spanish Kingdom and to Por-
tugal.80 His successor in the see of Bologna and St.
Peter's Chair, our Holy Father Benedict XV, has now
granted the same privilege to all priests of the universal
Church n and embodied it in the Code. Priests who say
three Masses on All Souls' Day may receive a stipend
for one of them, but one of the two others must be ap-
plied pro defunctis and the other according to the inten-
tion of the Sovereign Pontiff. A priest who sings or says
the conventual Mass may afterwards say two other
Masses."
There is no obligation of saying three Masses on
Christmas Day. A priest may say one or two according
to his good pleasure." But if he says only one or two
Masses he should say the Mass which corresponds to the
hour of the day, viz., ihe midnight Mass, about midnight,
the second, about daybreak, and the last, after dawn."
Those who have obtained a papal indult to say the Mass
de Beata on account of poor eyesight are not allowed to
a» C. j, X, III, 4i. The custom is 51 Benedict XV, " Incruentum,"
ascribed to Pope Telesphorus (125- Aug. 10, 1915; S. R. I. C, Aug. n,
136?). IQIS (A. Ap. S.. VII. 401. 4«).
10 Benedict XIV, De Sacr. Mis- aa S. Kit. C, Aug. 11, 1888 (Dec.
*ae, 1. III. c. 4, on. 9 ff. ; "Quod A*th., 11. $0\,:).
expenjis," Aug. a6, 1748. The 88 S. Kit C, June 19, 1875 (Dee.
Greek liturgies do not mention three A nth., n. 3355).
Masses; Benedict XIV, "In xupe- 84 S. Rit. C, June 19, 1875, Feb.
riori," Dec, 29, 1755, | a. 13, 1892, ad XXI. (Dec. Auth., nn.
3354. 37*7).
"-.
* -ww-iL* Original from
gle
UNIVERSITY OF WI5CGN5I
136 ECCLESIASTICAL THINGS
St
o>
say three Masses on Christmas Day, but only one." The
prayers prescribed by Leo XIII and Pius X to be recited
after Low Masses need not be said after each of these
three Masses, if the priest does not leave the altar.1**
These, then, are the two occasions on which each priest
is allowed to say several Masses. The general rule is
that only one Mass be said each day, unless a papal indult
has been obtained or the Ordinary has given permission
to binate. A papal indult is required if the Ordinary
is not entitled to grant the faculty of binating. Thus a
papal indult would be necessary for cloistered nuns who
wish to have two Masses " and also for having two
Masses said in a private Oratory, of which more anon.88
The Ordinary may grant — and this is now a power
given by law, and not a mere faculty — permission to
binate, if the conditions set forth in can. 806, § 2, are
verified. These are (a) lack of priests, (b) conveni-
ence of the people, (c) a holyday of obligation.
(1) The penuria sacerdotum, or lack of priests, must
be such that there is no other priest who could conveni-
ently say the second Mass. There may perhaps be travel-
ing priests,89 but unknown or of uncertain standing or
physical condition, in which case they must be looked
in
upon as not present. On the other hand, if a priest is
present who is still fasting and able to say Mass, he may
be compelled by the Ordinary to say Mass in order to
prevent bination. But in that case the pastor must fur-
nish a stipend, and if he cannot do so, the people are
85 S. Kit C, April n, 1840; April 3ft Such was the case in a pariah
28, 1800; {Dec. Auth., 2802, 314C). of Barcelona, a summer resort, where
86 S. Rit. C, April 30. 1889 sacerdotes ambuhntes were to be
{Dec. Auth., n. 3705). found, but sometimes they would
JIT Cfr. Prummcr, O. P., Man- come late, and sometimes not at all.
male Thtal. Moralit, 1915, Vol. Ill, Wherefore the S. C C. (July 23,
p. 200. 189-1) reasonably did not count
88 S. C. P. F., May B4> 1870, n. 6 them. {A. S, S„ 35, 18a ff.)
(Coll., n. 135a).
jle
Original from
UNIVERSITY OF WISCONSIN
"
CANON 806 137
obliged to supply the deficiency, and if they are too poor,
the Ordinary must procure the means.40 Where there
are sufficient priests bination is not permitted, because
the case of necessity 41 is not verified, and other priests,
as Benedict XIV says," are bound to the people by virtue
of sacred orders.
(2) The convenience or necessity of the people. Con-
venience it is to be understood relatively to the place or
number of the faithful who would be deprived of Mass.
For bination is permitted for the benefit of those who
assist at, not of those who say, Mass. The favor is con-
ditioned by distance or insufficiency of room, or the
convenience of the people. Thus if a priest has to at-
tend two parishes or missions, which are about half a
league or two miles apart from each other, this circum-
stance suffices to permit bination.*8 The size of the
church is also to be considered. If the parish is large
and the church building comparatively small, there is suf-
ficient reason for binating." The convenience of the
people, which falls under the heading of necessity estab-
lished by law, but is. included in the power of the Ordi-
nary, chiefly depends on the number of the faithful. Our
text says, " notabUis fidelium pars." What is " a con-
siderable part of a congregation M? Benedict XIV once
explained this term as meaning plures** or several. But
no general rule can be deduced from the various deci-
sions of the Roman Congregations. Sometimes fifteen
or twenty persons were considered insufficient to permit
bination, whereas on other occasions it was left to the
40 Benedict XIV, " Declarasti," « S. C. P. F., May 14 1870. n.
Mar. i6, 174*; S. C P. F., May 14 *• (Coll., o. 135*),
34, 1870 n. 9 {Coll., n. 135O. **/*.« n. 10; Benedict XIV,
liC 3, X, III, 41. ' 'Declarasti."
4a " Declarasti "; S. C. C. May 4" " Aposteltcum minulerium,"
i; 1897 (Amd. teA, t. V, 45a). May 30, "753. 8 "•
>Ic
£ * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
138 ECCLESIASTICAL THINGS
St
o>
u charity and conscience of the Prefect Apostolic " to
grant the faculty of binating when only ten or fifteen
servants {servi, slaves) were present. Hence no precise
number can be laid down. But it is undoubtedly the
mind of the Church that, on the one hand, there must be
a real necessity and, on the other, the Ordinary should
not be too scrupulous about granting the faculty, but pro-
vide for the spiritual welfare of the faithful, so that all
may be enabled to comply easily with the precept of hear-
ing Mass.*6 It follows that in large congregations with
a small number of priests each may say two Masses on
Sundays and holydays of obligation, in order to accom-
modate the people, some of whom have to stay at home
until the others return from church, and so forth.
(3) The faculty of binating, being granted for reasons
of necessity and convenience, cannot be wade use of
except on Sundays and holydays of obligation. There-
fore bination on suppressed feasts is not permitted.41
Nor can the Ordinary grant the faculty for merely de-
votional purposes, for instance, on the First Friday. The
Holy Office has declined to permit bination two or three
times a year to satisfy the pious desires of neophytes to
receive Holy Communion, considering all the circum-
stances of time and person in Corea, a missionary coun-
try.48 Such a permission would not lie within the power
of the Ordinary, but would need an Apostolic induk.
Permission is never given to say more than two Masses.
The text says that the Ordinary grants the faculty,
which signifies that he should grant it to all pastors or
curates who may need it. Suppose a pastor or assistant
has not received this faculty, and of two priests who are
48 S. C P. F.. May 24. 1870. n. «5. O., June jo, i860, ad j
tl. (Coll.. n. 1104).
4T it-: J., n. 5.
jle
/ - ^ V(_J , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 806 • 139
wont to say one Mass each on holydays of obligation, one
is taken ill suddenly, and there is no time left to consult
the Ordinary : may the priest who is well say two Masses ?
Yes, he not only may but should say both Masses,40 and
afterwards notify the Ordinary. But what if the priest
has broken the fast? May he then, in order to avoid
scandal, say a second Mass? Negative, says the Holy
Office.50
In order to prevent as much as possible the danger of
violating the fast, the S. C. Prop, has issued an instruc-
tion bearing on bination. One section concerns bination
in different churches, while the other touches bination in
the same church.
(a) After having consumed (sorbeat) the sacred blood,,
the celebrant places the chalice upon the corporal and
covers it with the pall. Thereupon he recites the prayer,
" Quod ore sutnpsimus." Then he washes his fingers in
a special bowl, meanwhile reciting the " Corpus tuum.'y
After that he removes the pall from the chalice, covers
it with the purificator, paten, pall and velum, and con-
tinues the Mass. After the last gospel he stands in the
middle of the altar and uncovers the chalice in order
to see whether a drop of the sacred Blood has gathered
in the chalice.61 If this is the case, he consumes it, then
pours as much water into the chalice as there was wine,
rinses the chalice, and pours the water into a special ves-
sel, cleanses the chalice, covers it, and leaves the altar.
The " ablution " may be preserved for the next day or
« S. C. C, Feb. 3. 1884 (Coll. 1425)- Concerning the stipend*, see
P. P., n. 161 1). This decision was can. 834.
rendered in a case where bination M The Instruction says: This
took place in two parishes or con- must not be omitted, because the
(rcgatiunB, but by analogy it may sacrifice morally continues, and as
safely be applied to our case. long as some species of wine is
■0 S. O., Dec. 2, 1874 (Coll., n. present, it roust by divine precept
be accepted.
;Ic
I , Original from
UNIVERSITY OF WISCONSIN
140 ECCLESIASTICAL THINGS
St
absorbed in cotton and burned or poured into the sa-
erarium.
(b) If he says the second Mass in the same church, the
priest, after having carefully sipped the sacred Blood in
the first Mass, shall leave the chalice covered with the
pall upon the altar and recite the " Quod ore." Then he
shall wash his fingers in a special bowl, say the " Corpus
tuum," and cover the chalice with the velum, leaving it
on the corporal. After Mass he shall carry the chalice
into the sacristy, if there is one," place it in a closed
cupboard, and leave it there until the second Mass. At
the Offertory of the second Mass he shall not remove
the chalice from the corporal at the oblation of the bread,
nor clean it with the purificator, nor wipe off the drops
of wine inside the chalice, but take care, in pouring the
wine into the chalice, that no drops adhere to the inside
of the chalice.
.■
moral disposition of the priest
Can. 807
Sacerdos sibi conscius peccati mortalis, quantumvis
se contritum existimet, sine praernissa sacramentali
confessione Missam celebrare ne audeat; quod si, de-
ficiente copia confessarii et urgente necessitate, elicito
tamen perfectae contritionis actu, celebraverit, quam-
primum confiteatur.
What this canon prescribes concerning the state of
grace required in the celebrant is the ancient doctrine of
the Church,58 and the teaching of moralists.5* The Code
62 If there is no sacristy, the safe, and no irreverence to be
chalice may be left on the altar. feared.
This ib generally done, and we be- 53 C. 7, X. Ill, 41; Trid., sesa.
lieve may be continued even if 13, c. 7, di Huch.
there is a aacriity, if the church it " Cfr. Lehrakuhl, Theal. Morat..
->Ie
% ,j , Original from
UNIVERSITY OF WISCONSIN
-'
■
pi
CANON 808 141
follows the same teaching when it further says if no
copia confessarii is at hand and the celebration of Mass
is urgent, the priest should make an act of perfect con-
trition and say Mass, then go to confession as soon as
possible, i. e., in about three days. The term "quatn-
primum " indicates not a mere counsel, but a precept,"
provided, of course, there be a copia confessarii.
the obligation of fasting before mass
Can. 808
Saccrdoti celebrarc ne Herat, nisi ieiunio naturali a
media nocte servato.
A priest is not allowed to celebrate Mass unless he
has observed the natural fast from midnight on.
The natural fast before Mass was prescribed by the
ancient Church,66 and the African synods (not without
reason, as some of St. Augustine's sermons testify), were
very strict in enforcing this ecclesiastical law. The pro-
hibition comprises the taking of anything that is swal-
lowed in the form of nutritive and digestive food or
drink, but not what enters the stomach by way of saliva
or breathing.01 Thus if a drop of water is mingled with
the sputum when one cleanses his mouth or teeth, the
law is not violated. Smoking, nay even chewing tobacco,
if nothing is swallowed per modum cibi voluntarii, does
not prevent one from saying Mass.68 Pumping out the
II, n. 153; Marc, Institution*! 67 Cfr. Lehmkuhl, /. c, II, n. 160;
Morales Atphansianac, crl. 9, n. Prumnier, I. c. III, d. 199.
1547 ff.; Priimmer, Manual* Tktot. BB Benedict XIV, De Socrificio
Moralis, 19151 III, n. 194. Missat, Appendix IX, where the de-
■B Propp. 38, 39 dam. ab Alex. velopment of that custom is traced
VII, March 18, 1666 (Denzinger, from being laid under excommuni-
D. 1009 f.). cation until it was declared not un-
B« C. 49. Dial, i, d* constc; c. becoming.
16, C 7. q- I«
.'le
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
142 ECCLESIASTICAL THINGS
St
stomach, although some water may be absorbed at first
but is again given up, would not interfere with saying
Mass.69
As to the time note that midnight is the starting point.
Can. 33, as explained in Vol. I, pp. 177 f., permits us to
follow any time, local, mean, or legal, and even where
the public clock or time assumed by local custom is gen-
erally followed, there is no obligation to abide by it.fl0
When several clocks or watches show a difference, one
may securely follow the rules of probabilism."
■
application of the mass
Can. 809
Integrum est Missam applicare pro quibusvis turn
vivis, turn etiam dcfunctis purgatorio igne admissa
expiantibus, salvo praescripto can. 226a, § 2, n. a.
A priest may apply the Mass for the living as well
as the dead who expiate their faults in purgatory, with
the exception of those mentioned in can. 2262, § 2, n. 2.
What the priest is here said to apply is the so-called
fructus specialis or tninisterialis, i. e., the special fruit
or benefit of the Mass offered in the name of Christ and
of the Church for a determined end or person. Besides
the general blessing which accrues to the Church and the
world at large, and besides the personal benefit which
the priest derives from the Holy Sacrifice of the Mass,
there is a special fruit which he may apply ad libitum.
It is like a special prayer, which is more efficacious than
a general prayer, and receives a particular value from
*9 Primmer, /. c, n. 199. no " havoc " to be feared, aa a
00 S. Pocnit, June 18, 1873 M. somewhat confused critic observed
5. S., V, 399) ; Nov. 29, i88j concerning our interpretation of
{.Coll. P. F., n. 1580). can. 33. if we follow the sound rules
61 Lehmkuhl, II, n. 159. There is of interpretation And probabilism.
ioogle
t * -» .. -.L-. Original from
UNIVERSITY OF WISCONSIN
CANON 809 143
the efficacy of the unbloody Sacrifice itself.8' Now it has
been the constant and perpetual teaching of the Church
that the unbloody Sacrifice of the altar benefits not only
men living in this world, but also alleviates the suffer-
ings of the souls in purgatory.68 This it does not only by
the general intention of the Church, but still more effi-
caciously by the application of the special fruit of the
Mass by the sacrificing priest."
The Code says that this fruit, whether expiatory or
impetratory, may be applied (I) to the living, with the
restriction mentioned in can. 2262, where the conse-
quences of excommunication are set forth, among which
is privation of spiritual favors and graces. Said canon
says that the priest may, if no scandal is given, say Mass
privately for an excommunicated person ; but if the lat-
ter is vitandus, only for his conversion.
The question naturally arises whether Mass may be
applied to non-Catholics, either Protestants or schismat-
ics. This question reduces itself to another, via.:
whether Protestants and schismatics are vitandi or not.
It cannot be doubted that, if they are formal heretics who
pertinaciously deny an article of faith, they are excom-
municated, but" they would be vitandi only if nominally
excommunicated by the Apostolic See, publicly denounced
in
as excommunicated, and expressly designated as vitandi™
This is not the case with ordinary Protestants or schis-
matics, though the latter are dealt with more severely, to
c
fla I.thmkubl, /. c, II, n. 173. n. 1393): cfr. Pohle-Preuss Th*
A3 TriJ., sess. 22. c. a, De Sacrif. Sacraments, 1916, II, p. jgj.
Musae, can. 3; sess. 2$, de Purgai.; OB b. O., July 25, 1865 {Coll., n.
Decretum Unionis Graec, July 6, 1274).
'439 (Dcnringcr, n. 588); Benedict 60 Can. 2258; the only exception
XV, " Jncruentum," Aug. to, 1915 to this general rule is the case men-
(A. Ap. S., VII, aoi): tioned in can. 2343. when one ma-
fi* Pius VI, " Auctorem fidei," liciously lays hands on the person
Aug. j8, 1794. prop. 30 (Denxingcr of the Roman Pontiff.
..-.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
144 ECCLESIASTICAL THINGS
judge from a decision of the Holy Office,6' which says, in
reply to the question whether a priest may say Mass for,
and receive a stipend from, a Greek schismatic, that this
is not allowed unless it is manifest that the stipend is of-
fered for his conversion. This decision is reversed by
the Code, which clearly says that, unless he is a vitandus,
Mass may be offered for him. Therefore, a priest may
say Mass privately for any living non-Catholic as long
as he does not give scandal, e. g., by announcing the fact
publicly. But he is not allowed to sing High Mass for
any non-Catholic, except for actual rulers, in which case
the welfare of the country is the main purpose of the sol-
emnity*8
The next question is whether Mass may be offered for
infidels, i. c, unbaptized persons, such as Jews, Turks,
etc. The answer is yes, because, on the one hand, they
are not excommunicated, never having belonged to the
Church, and, on the other, there is no positive prohibi-
tion rendering such application unlawful.09 But the same
decision of the Holy Office from which this statement is
taken also admonishes priests to scrutinize the purpose
for which infidels, especially Mohammedans, offer a Mass
stipend. If their intention is evil, or superstitious, or
erroneous, the priest should not accept the stipend unless
in
he can correct their error or at least tell them that he will
offer the Mass according to the will of God. There is
no superstition if they ask for a Mass in order to be freed
from sickness, or prison, or capital punishment.70 Nor
was it considered to be superstitious if Christian Chinese
made the offering called Phan-huong-hoa, which is a
87 S. O.. April io. 1837 {Coll., n. 80S. 0.. July 12. 1865: S. C. P.
858). F., March 11, 1848 {Coll., nn. 1274,
'.■■'• <_':':. Gasparri, Dt Ssma Euch., io.'8>; Gaipuri, /. c, n. 486.
1897, 0. 483; Aichncr, Compendium to S. C P. F., March n, 1848
Juris Eccl, I 51, 2. {Coll., a. 1028).
jle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 809 145
burnt offering for the dead made by a last will, because
thereby the Christians intended to have Masses said for
their deceased relatives.71 All superstitions or erroneous
intentions must be discountenanced when non-Catholics
offer a Mass stipend, because to let them go unchallenged
would be tantamount to fostering or spreading supersti-
tion.72
(2) Concerning the dead, the general principle applies
that with those with whom we have associated when liv-
ing we may also associate when dead.78 Hence for those
who have died in union with the Church any kind of
Mass. low or high, private or public, may be applied.
On the other hand all those to whom ecclesiastical burial
is denied are also deprived of the funeral Mass (Missa
exequialis.).7* Therefore no funeral Mass may be said
for such as die unbaptized, unless they were catechumens
who without their fault died before they received Bap-
tism.78 Heretics, too, and schismatics, as well as con-
demned Masons, are to be denied the funeral Mass.
Neither are dead rulers or persons of royal blood who
were not Catholics to have a funeral Mass.70. How-
ever the term funeral Mass must be interpreted
strictly. It does not include a private Mass not con-
nected with the funeral services. What if a relative
offers a Mass stipend for the repose of a deceased non-
Catholic? May the priest accept it? A decision of the
Holy Office 7T would seem to forbid such acceptance, no
"-.
7i S. C. P. F., Aug. 6, 1840 T4Cin. 1239-1 241.
{Coll., n. 910). T* For living and dead catechu*
TS S. O., July 12, 1865 (Coll., a. raena or converts in fieri, therefore,
1274). It would be superstitious if Mass may be said; cfr. c. 2, X, III,
one believed that the Maas is an in- 43: Gasparri, /. c, n. 48?.
fallible remedy for all kinds of trou- "« Gregory XVI, Feb. 16, 1842.
bles or a sure means of obtaining T7 s. <)., April 7, 1875 (Coll., n.
any grace or favor. 1440).
73 C. i. C. 24, q. 2; c. 12. X, III,
28.
gle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
'■-.
146 ECCLESIASTICAL THINGS
matter whether the application is publicly known or
known only to the priest and the person who offers the
stipend. Yet in spite of this decision some authors say
the priest may accept the offering privately on condition
that he expressly declares that he will say the Mass as
far as he is allowed to do so and according to the will
of God.78 This seems a plausible theory if the non-Cath-
olic in question was not a bigoted and prominent defender
of his belief, and especially if he was kindly disposed
towards the Catholic religion, or died with signs of re-
pentance. For the above-named decision lays stress on
manifest heresy." Besides our Code (can. 1240) in-
sists upon notorious heresy or schism, which rarely oc-
curs in our country. As to dead infidels or non-baptized
persons no decision is known to us that would either
forbid or allow the application of a Mass for them.
However, a funeral Mass is forbidden. Whether a pri-
vate Mass is allowed must, we believe, be decided accord-
ing to the rule laid down with regard to baptized non-
Catholics."
preparation aj»d thanksgiving
Can. 810
Sacerdos ne omittat ad Eucharistici SacriBcii obla-
en
tionem sese piis precibus disponere, eoque expleto,
gratias Deo pro tanto benerkio agere.
The priest should not omit to prepare himself for the
tb Lclimkuht, /. r*i d. 176; Gas- Mass with a special oration pro hoc
■ '
parri, /. c; n. 4091, says that the defuncto acatholico. A "Black
priest would be allowed to accept Mast pro defunctis could be said
the offering, but would have to de- if the rubrics permitted,
clare lhat the Mass would be ap- 7» Thus Gasparri, /. c, n. 489, but
plied for all the poor souls with the the decision which he quotes from
intention of succoring the particu- S. C. P. F.. April 18. 1757 (Coll.,
lar person if it pleased God. n. 405; ad 5) only speaks of ichis-
Lebmkuhl, /. C„ excludes s " Black " matics.
*Ie
/""* ^ v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 811 147
celebration of the Eucharistic Sacrifice by pious prayers
and give thanks to God for this great grace after cele-
bration.
It is understood that the celebration of the divine office,
especially in choir, is a fitting preparation for Mass, be-
cause the liturgical office tends towards the Sacrifice as
its center.
■
9
vestments tor mass
Can. 811
§ 1. Saccrdos, Missam celebraturus, deferat vestem
convenientem quae ad talos pertingat et sacra orna-
menta a rubricis sui ritus praescripta.
§ 2. Abstineat autem a pileolo et anaulo, nisi sit
S. R. E. Cardinalis, Episcopus vcl Abbas benedictus,
aut nisi apostolicum indultum eorundem usum in
Missa celebranda eidcin permittat.
The priest, when saying Mass, shall wear the cassock
(soutane) and the sacred vestments prescribed by his
rite; but no ring or skullcap, unless he is a cardinal, a
bishop, or a blessed abbot, or unless an Apostolic indult
permits him to wear these insignia at Mass.
The rule laid down in § 1 is sufficiently known from the
general and special rubrics. No departure from it is
allowed without weighty reasons. Such a reason would
be persecution. But even in times of persecution the
Holy See would not be likely to grant a general permis-
sion to all the priests of the province or country involved,
but only to some who might be expected to make a wise
use of the privilege."0 The term sui ritus implies that
■0 S. C. P. F., Nov. 30, 1828 for rochette. ring, and pectoral cross,
Chios {Coll., n. B07). Bishops and unless there is a grare and urgent
Vicari Apostolic should wear the reason which excuses them.— S. C.
>Ie
I , Original fro m
UNIVERSITY OF WISCONSIN
148 ECCLESIASTICAL THINGS
Latin priests must observe the rules of the Latin rite as to
the various vestments and their color, and that Oriental
priests must follow the practice of their rite.
§ 2 enumerates the skullcap and the ring, which by
law may be used only by Cardinals, bishops and abbots.
No others are allowed to wear these insignia, though
there seems to have been a special temptation to wear
the ring. Rome has never allowed Cathedral and Colle-
giate Canons to wear a ring at sacred functions, not even
when an immemorable or inveterate custom could be
claimed.81 Neither is a Commendatory Prior or Abbot,
or the Provost of a Collegiate Chapter entitled to wear
a ring." Nor does the title of doctor give a claim to it,
although it confers the right of wearing a ring outside
the sacred functions.83 The height of ambition was
reached by some pastors, especially archpriests farci-
preti), of a Sicilian diocese, who claimed the right to
pontificate or chant High Mass with ring and purple
mantelletta and surrounded by four ministers in cope."
A papal indult was granted to the Protonotaries Apos-
tolic de numero participontium to wear a ring and black
skullcap at all sacred functions, and to supernumerary
Protonotaries Apostolic to wear a black skullcap under
the mitre at Pontifical Vespers, and the ring at all func-
tions.88 The Vicar-General and honorary Prothono-
taries Apostolic are not allowed to wear cither the ring
or the skullcap at any function.88 We may add that no
a
P. F., March «, 1669 {Coll., n. 178 88 S. Kit. C, May 23, 1B4S; June
ad 1); on vestments sef Benedict 30. 1883 (Dec. A*tk.. nn. 2907.
XIV, De Sacrif. Misiae, 1. I, c. 7. 3S8o).
Bi S. Rit. C, Nov. 20, 1628; M S. Rit. C, July 28, 1876; Jan.
April 11. 1840; Aug. 20, 1870; 30. 1878 (Dec. Auth., nn. 3408.
March 9, 1844 < / '-v. Auth., nn. 483, 344?)*
3805, J*i8, 38*1). et piua X, " Inttr multiplier*,"
82 S. Rit. C, April 12. 1704, ad a; Feb. SI, 1905, nn. 4, 9 (Am. Eccl.
Aug. 4, 1657 {Dec. Auth., nn. 2130, Rev., 32, 614).
104a). 88 Ibid., nn. 27, »8, 3*. 47-49
(Am. Eccl. Rev., 32, 619 f.).
oogle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 812 149
titular abbot is entitled to wear either ring or skullcap
unless this privilege was especially granted to him, and
that there is no obligation to wear a skullcap at sacred
functions either for prelates BT or for the others who are
entitled to these insignia by privilege, unless perhaps for
the reason of using the privilege. There is some signifi-
cance in the ring, but very little in the skullcap
no assistant priest allowed at mass
Can. 812
Nulli sacerdoti celebranti, praeter Episcopos aliosque
praelatos usu pontificalium fruentes, licet, sola honoris
aut sollemnitatis causa, habere presbyterum assisten-
tem.
With the exception of bishops and prelates entitled to
the use of pontificals, no priest is allowed to have an as-
sistant priest in celebrating Mass merely for the sake
of honor or solemnity.
The right of pontificating belongs by law to Cardi-
nals outside of Rome. If they pontificate in cathedral
churches, which they may do upon due notice to the
Ordinary of the diocese, they may employ a presbyter
assistens** Bishops and archbishops are expressly men-
tioned as entitled to this privilege. Other prelates who
enjoy it are abbates regiminis, after they have been
blessed by the bishop, and abbots or prelates nullius.BB
The supernumerary Protonotaries Apostolic may also
have a presbyter assistens if no bishop or prelate of
higher rank than a bishop is present. Protonotaries
Apostolic ad instar may employ an assistant priest only
when they pontificate outside their church or in other
BT AH tbe textt only uy poterunt, M Can. 239. 8 t, 15.
they ra»y. 80 C»n. j»s; c*n. 615.
oogle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
150 ECCLESIASTICAL THINGS
churches when no bishop or higher prelate is present.90
Canons of Cathedral or Collegiate churches, although dig-
nitaries, and provosts are not allowed to have a presbyter
assistens.91 Much less can the custom, even though im-
memorable, be tolerated that simple priests celebrate Mass
with an assistant priest.82 But what about the custom of
employing a presbyter assistens at the first Holy Mass
of a newly ordained priest? This question was placed
before the Sacred Congregation, who answered : posse
tolerari.9* In itself this answer does not sound favora-
ble, since it implies a mere negative toleration ; yet we be-
lieve the Code does not mean to reprobate the custom,
because a presbyter assistens is, on such an occasion, not
employed for mere honor or pomp, but for the purpose
of aiding the neopresbyter.
mass without a server
Can. 813
§ 1. Sacerdos Missam ne celeb ret sine rninistro qui
eidem inserviat ct respondeat.
§ 2. Minister Missae inserviens ne sit mulier, nisi,
deficiente viro, iusta de causa, eaque lege ut mulier ex
longinquo respondeat nee ullo pacto ad altare accedat.
A priest shall not say Mass without a minister who
serves and answers him. Women may not serve Mass
unless no man is present and there is a just cause, and
then they must answer from a distance and not approach
the altar.
■
»0Piu§ X, "Inter multiplices." 02 S. Kit. C, July 28, 1876; Jan.
nn. 29, 47 (Am. Ecct. Rev., 32, 619, 30, 1878 (Dec. Avtk.t no. 3408,
6*3>. 344*)-
Bi S. Rit. C, Aug. 7, 1628; April, Da S. Rit. C, Dec 1. 1882 (Die.
1666; Sept. 10, 1701; Sept 19, 1883 Autk, n. 3564).
(Dee. Auth., nn. 475, '3*7. *°78.
35«8).
* "* ( Innalp Original from
,00cVC UNIVERSITY OF WISCONSIN
CANON 813 151
The obligation to have a server at Mass is per se grie-
vous, as it is prescribed by the rubrics.8* However, by
reason of the faculties formerly granted to our Ordi-
naries and communicated by them to all their priests, we
have become accustomed to say Mass without a server
for reasons which really would not stand the canonical
and moral test. Does custom even now excuse us from
grievous transgression in this matter? Where normal
conditions exist in a regularly established parish it would
be difficult to excuse the old custom. But where mis-
sionary conditions still prevail we believe priests need
not scruple to say Mass without a server, especially when
there are some frequent communicants and the boys are
in school or on vacation. For there can hardly be a
doubt that the spiritual benefit is proportionately greater
than the observance of a law which, if too strictly en-
forced, would diminish religious fervor. This is our
view. For the rest, all authors " agree that Mass may
be said without a server if the Viaticum has to be con-
secrated, or on holydays of obligation for the people as
well as the priest, or if the server should leave after
a.
Mass is considerably advanced.00 Attention may be called
to the fact that in our country people are neither scan-
dalized nor surprised to see a priest say Mass without
a server.
As to zvomeii, Benedict XIV ruled that they shall not
serve at the altar, but the sacred Congregation has since
permitted girls in institutions or Sisters to answer the
"-.
•« C. 6, X, 1,17; Cone. Banl., applies to prelates inferior to bishops
ies«. 9i, c. 8; Misial* Rom., Rilus when the? «ay Mass privately;
Serrandus in Celebntione Misiae; Gasparri, I. c, n. 648.
Gasparri, /. c, n. 64s ft. The server 88 Cfr. Lchmkuhl, II, n, 244.
at low Mau ihould not open the 06 " Etsi postaralis," May 26,
missal, or mark the levcral parts 1742, I VI, n. X.XI; " Allotae sunt,"
of the prayers, as ihe S. Cong, has July 26, 1755, 9 29 (referring to a
forbidden this. The prohibition also Greek custom).
jle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
152 ECCLESIASTICAL THINGS
priest from behind a railing in case of necessity.97 It
seems to us that it would be preferable, for reasons of
mere devotion, to employ a woman server, than to say
Mass without any server at all.98 But the faculty granted
in virtue of Form I, Art. 23, to say Mass without a
minister can no longer be made use of.09
■
ARTICLE II
RITES AND CEREMONIES OF THE MASS
The Species
Can. 814
Sacrosanctum Missae sacrificium ofFerri debet ex
pane et vino, cui modicissima aqua miscenda est.
Can. 815
§ 1. Panis debet esse mere triticeus et recenter con-
fectus ita ut nullum sit periculum corruptionis.
§ 2. Vinum debet esse naturale de genimine vitis et
non corruptum.
The Holy Sacrifice of the Mass must be offered in
bread and wine, and to the latter must be mixed a few
drops of water.
The bread must be of pure wheat and freshly baked,
so that no corruption need be feared.
The zvinc must be natural wine made of the juice of
the grape and uncorrupted.
Can. 814 embodies an article of faith.1 The Armen-
07 S. Ril. C.f Aug. 37, 1836; («e Vol. II, p. 587); Putxer, Com-
March 18. 1899 (Dtc, Auth., on. mtnt. in Focut. Ap., cd. 4, p. 277;
3745, 40'5). Am- Ecci- Rev-> 55. 3M-
u» Lehmkuhl. /. c. 1 Trid., sett. 22, can. g. de Sacrif.
»* S. C. Consist., April 23, 1918 Mittae.
jle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-■
CANON 815 153
ians, who were more or less inclined to Monophysitism,
stubbornly refused to mix a little water with their wine.
The Church, on the other hand, was just as tenacious in
upholding the Apostolic or divine tradition and refused
to deviate from it, though she freely acknowledges that
the water does not belong to the essence of the sacrifice
(de necessitate sacratnenti) * Therefore converted Ar-
menian priests must adopt the Catholic practice,8 which is
based on John 19, 34 and Apoc. 17, 1, 15, as the Council
of Trent says.* Our text, following the rubrics of the
Missal, says modicissima aqua, a very small quantity.
This means about three to ten drops. If the water would
exceed in quantity one-third of the wine, consecration
would be doubtful.5
§ 1 of can. 815 requires pure wheaten bread for valid
consecration. This excludes every other kind of grain,
such as barley, rye, oats, maize (corn), rice or potato
flour, as also an admixture of one or more of the afore-
said substances. The wheat used may be hard or soft,
red or white, etc., just so it is really wheat. If spelt is
considered a hard-grained variety of wheat, it is valid
matter; but if it is taken as an intermediate product be-
tween wheat and barley. it is not valid. This depends
much on local nomenclature.
The wheat must be recently baked into bread, as bread
is usually made,8 that is mixed with water, not milk, or
wine, or oil, or spices. Recenter confectus signifies, not
that the flour must be freshly ground, but that the bread
must be recently baked, 1. <?., it should not be older than
■
1 S. C. P. F., Jan. 30. 1635 iCoti., • S. O.. June a3, 1853 (Cott.. n.
Bt 81). 1076) permitted the custom of put-
I S. O., Aug. 7, 1704 (Coll., n. tint around grain into water for aev-
267). eral hours to solve it and then pUc-
* Seas, aa, c. 7, dt Sac. Mmjoc. ing the mass on hot irons.
tPrummcr, J. c. 11% n. 173.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
154 ECCLESIASTICAL THINGS
St
fourteen days.7 In summer as well as in moist weather
or damp places the danger of corruption is especially
great, and hence the frequent renewal of the bread under
such conditions is not only advisable, but imperative. A
late decree of the S. C. of Sac. says that altar bread
should not be bought for two or three months ahead and
that hosts more than two or three months old cannot be
used for the Holy Sacrifice of the Mass and for Com-
munion.8
As to the form of the bread, round hosts are used in
the Latin Church, whereas the Oriental Church employs
square hosts.8 The size of the host for Holy Mass and
exposition in the Ostensorium should be from two to
three and of the particles for distribution about one
inch. The altar breads should be neither too thick nor
too thin.10
§ 2 describes the quality of the wine. It must be nat-
ural wine made from grapes. But no wild grapes may
be used/1 whilst wine obtained from pressed grapes, if it
has the taste, smell and color of wine, is allowed.13 The
wine must be fermented, for this is a natural quality of
wine, but it should not contain more than 12 per cent, of
alcohol. If wine is very weak, so that it would suffer
from transportation or be easily corrupted, an admix-
ture with wine spirit (alcohol obtained from wine) is per-
missible. But the mixture is to be made in such a way
that the alcoholic percentage of both the natural wine
and the wine alcohol does not exceed 12 per cent, and
when the wine is still young, after the first fermentation.18
r S. Rit. C, Dec. iBj6; Sept. is, 10 Trummer, /. c. III, n. 171.
1884 (Dec. Auth., nn. .-650, 3*io>. U S. C. P. F., 1819 (Coll., n.
8 S. C. Sacr., Dec. 7, 1918 (A. 73a); Gasparri, I. c, nn. 811 ff.
Af. S., XI, 8). is S. O., July w, 1706; May 7.
» Benedict XIV, Di Sac. Afijjoe, 1879 (Coll., nn. 270, 15*8).
I, c. 6. xs S. O., July 30. 1890 (Coll., n.
1735).
v ,|,, Original from
UNIVERSITY OF WISCONSIN
>gk
CANON 817 155
Spanish wines, being very sweet and easily liable to cor-
ruption, especially in transit, may be mixed with wine
alcohol to such an extent that the whole alcoholic per-
centage would amount to 17 or 18 per cent.1* If the
wine does not contain sugar enough to preserve it, it is
permitted to evaporate or boil the grapes recently pressed
(must) so as to obtain a wine of 14 or 16 per cent, of
alcohol. But this process is allowed only if it does not
prevent the natural fermentation of the wine.15 Not
easily tolerated, or tolerated only for very special reasons
and with the express approval of the Sovereign Pontiff,
is the following: Ten pounds of sugar cane are mixed
with 100 pounds of wine grapes, and both fermented until
about sixty-seven pounds are left.18
These and other decisions show how careful the
Church has been in procuring genuine bread and wine
for the Holy Sacrifice, and how strictly she enjoins on
Ordinaries to use great care in selecting wheat and
wine dealers to supply the needs of the clergy." A new
obligation seems to arise for hierarchy and clergy from
extreme prohibition. (For can. 816 see Appendix, pp.
572 sqq. infra.)
I Can. 817
Nefas est, urgente etiam extrema necessitate, al-
teram materiam sine altera, aut etiam utramque, extra
Missae celebrationem, consecrare.
a
It is unlawful, even in case of extreme necessity, to
consecrate one species without the other, or to conse-
crate both outside the Mass.
14S. 0., Aug. 5, 1896; May aa, ia S. O., June 25. 1891 (Coll., a
1901 {Coll., on. 1950, 21 13). 1757)-
i» S. O., Mmy aa, t©oi {Coll, n. If S. O.. July 9. 1881: Auk. 30.
3113). 1901 (Coll., nn. 1556, aiaj).
jle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
156 ECCLESIASTICAL THINGS
fit
The first of these clauses touches the very essence of
the Mass, which most probably consists in the consecra-
tion of both species. However, theologians " generally
admit, following the Missale Romanum,19 that the con-
secration of one species would be valid without the con-
secration of the other. This might happen if a priest
would grow seriously ill after the consecration of one
species, or if, by mistake, he would consecrate water and
no wine would be at hand, or danger of death would im-
mediately follow the consecration of one species. Yet
all these are merely physical accidents. Intentionally to
consecrate only one species is never allowed, not even to
provide the Viaticum, although such consecration would
be valid.20
To consecrate outside the Mass would not only be a
sacrilege, but probably also an attempt at invalid con-
secration. The priest would certainly not perform that
action in the person of Christ, nor according to the in-
tention of the Church, which is restricted to the cele-
bration of the Mass.31
observance of rubrics and rites
Can. 818
Reprobata quavis contraria consuerudine, sacerdos
celcbrans accurate ac devote servet rubricas suorum
ritualium librorum, caveatque ne alias caeremonias aut
-
preces proprio arbitrio adiungat.
18 Cfr. Noldin, Summa Theol, Mo- 20 Noldin, /. c, and n. 104.
talis, 1912, De Sacram., n. 102. 21 Prummer, /. c. III, n. 176.
UDi De/ectibut, c. IV, nn. 5, 8.
B \
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
Q
CANON 819 157
Can. 819
Missae sacrifkium celcbrandum est lingua liturgica
8ui cuiusque ritus ab Ecclcsia probati.
The priest, when celebrating Holy Mass, must ac-
curately and devoutly observe the rubrics of the re-
spective ritual books and avoid the arbitrary addition of
other ceremonies and prayers. Every contrary custom
is hereby reprobated.
There is a distinction between prescriptive and directive
rubrics which should be retained." The obligation im-
posed by prescriptive rubrics is greater and more serious
than that which attaches to merely directive rubrics. The
former concern the celebration of the Mass itself, whilst
the latter refer to what immediately precedes or follows
the celebration, for instance, how the priest should ap-
proach or leave the altar, etc. But even the prescriptive
rubrics do not all oblige with equal strictness. They dis-
tinguish between the ordinary and the extraordinary parts
of the Mass, the former being such as occur in every
Mass (confession, orations, offertory, breaking of the
host and the dropping of a particle into the chalice),
whereas the latter occur only in a certain kind of Masses
(Gloria, Tract, Credo, various commemorations, etc.).
But the juridical obligation of saying everything accord-
ing to the rubrics, whether in red or black, is undeni-
able." The rubrics of the canon in particular must be
carefully followed.
No addition is allowed even for the sake of devotion,
and the prayers and ceremonies must not be curtailed u
ti Noldin, /. c, n. 20B f. It S3 S, Rit. C.f Nov. t», 1605 (Dee.
would be unreasonable to reject Auth., n. 194).
tfaia distinction, and lead to unnec- 24 J it J.
esaary scruples, or Janaemstic rig-
orism, or Pharisaism.
.'Ie
£ " ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
N
■
158 ECCLESIASTICAL THINGS
or mutilated. Hence no arbitrary prayers, ejaculations
or gestures are to be used.
These rules also bind, to their fullest extent, all relig-
ious, whether exempt or not. They are not allowed to
insert in the canon the name of their superior, unless, of
course, he is an abbot nullius.26 Should they attempt any
change or mutilation or addition, the Ordinary may pro-
ceed against them with ecclesiastical censures, against
which no appeal or injunction or inhibition is permis-
sible."
The ceremonies and prayers of the Mass must be car-
ried out according to the respective ritual books. Hither
refers also can. 819, which rules that Mass must be cel-
ebrated in the liturgical language proper to each one's
rite, as approved by the Church. The Roman Pontiffs,
whilst permitting and upholding the Oriental rites, at the
same time kept watch against schismatical tendencies.
The reason is obvious: the lex orandi reflects the lex
credendi. Therefore the Orientals, no less than the
Latins, are obliged to use the liturgical books approved by
Ro
me.
The liturgical language is Latin for the whole Western
Church, and wherever else it is in use, as, for instance,
in parts of Servia." The Oriental Rites differ in Ian-
jruage. The Missal for the Latin Church was issued and
approved by Pius V, in I57°» an<^ *ne las* revision, com-
prising the chant, was made in 1R&3 by authority of Leo
XIII. As to the monastic Missal, enough has been said
:o Ibid. 2T Benedict XIV, " Etsi pastor-
2C Benedict XIV, "Ad mUitantis." alls," May 26, 1742. 8 IX. n. XVIII;
March 30, 1742, fi 6; S. Rit. C. " Demonuatam." Dec. 34. '743. I
March 16, 1591; Aug. 19, 1651 (Dec. 11; "Inter omnigenat," Feb. J(
Attth., n. 9, ad 1% n. 937, ad II). 1744. B 18.
Why regulars should weir a hood 28 Benedict XIV, " Inter omni-
I 1 «:/ " '"iw) instead of t* birrctta ia gena*," 8 »8.
not quite intelligible.
ogle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 819 159
in Vol. Ill of this Commentary ; we will only add that
its general rubrics are identical with those used by the
secular clergy.
Every edition of the Missal must be approved by the
S. Rituum Congregatio, or at least contain a declara-
tion by the Ordinary that it conforms to the edition of
1883. Lately a few additions have been made as to the
Gregorian Chant, especially with regard to the " Gloria "
and " Ite Missa est," of which we now have fifteen vari-
eties,— certainly not to the gain of uniformity.
No mixture of rites or change from one rite to an-
other by the same priest is allowed. Thus the Greeks
are not allowed to say Mass in the Latin Rite, even in
a Latin Church, nor are Latin priests allowed to celebrate
Mass in the Greek Rite,20 for instance, on the antimensia
of Ruthenian churches. An exception was made in favor
of some Oriental colleges in Rome and of the Greek
College under the direction of the Benedictines, who may
say Mass either in the Latin or in the Greek Rite. But
this singular provision, made for the benefit of the stu-
dents of these colleges, not for the benefit of the priests
to whom the college is entrusted, cannot be alleged as a
precedent for violating the general rule of not mixing the
various rites.80
A curious mixture, however, is noticeable in the prov-
inces of Gorizia, Zara, and Zagrab, where the use of the
old Slavic or Glagolitic language is permitted under cer-
tain conditions which have been established by the S.
Rit. C. after a protracted and heated controversy.81
p
aflSt. Vint V. " Providrntia," 5. 1808 (Dec. Autk.. nn. 3768.
Aug. 20, 1566; " Quoprimum," July 3999) I Aug. 14, 1900; March 14,
U. 1570, I 3; Benedict XIV, " Jm- 1902 (/fna/. Ecct., VIII. 417; X,
posit 0 Nobis." March 20. 1751. I 9- 206: XV. 22), Some Chinese mis-
80 Benedict XIV, " Allatae sunt," sionaries were allowed to say Mass
July 26, 1755, I 34 f- tecto capite, but the custom was to
81 S. Rit. Cm Feb. ij. 189* ; Aug. be eliminated gradually; S. C. P. F.f
oogle
Original from
UNIVERSITY OF WISCONSIN
i6o ECCLESIASTICAL THINGS
Finally it may be added that Mass must be celebrated
in a standing, not sitting, posture. This rule, being
merely ecclesiastical, does not bind the Pope, who may
therefore sit when saying Mass. Any other priest would
need a papal indult (S. C. Sacr.) to say Mass either
partly or entirely in a sitting posture.82 Of course, when
the rubrics permit the minister to sit down, he may and
should do so.
ARTICLE III
time and place of celebrating the mass
Can, 820
■
pi
Q
Missae sacrificium omnibus diebus celebrari potest,
execptis iis qui proprio sacerdotis ritu cxcluduntur.
Holy Mass may be celebrated on all days except those
on which the respective rite forbids the priest to say it.
In the Latin Church the general rubrics prescribe that
no private Masses be celebrated during the three days
preceding Easter. This is to be understood as follows :
On Maundy Thursday one solemn Mass should be cele-
brated in all the churches where the Blessed Sacrament
is preserved 3* and the liturgical functions are performed
according to the Memoriale Rituum issued by Benedict
XIII. In churches where, on account of a lack of clerics
or servers, the sacred ceremonies cannot be duly held,
the bishop may grant permission to the priests to say a
low Mass for the convenience of the people. However,
this Mass should be said before the solemn High Mass
(M
July ji. 1673 (Coll.. n. ao6). They 82 Benedict XIV. "Atstoj." Oct.
were not, however, allowed to say II, 1757, nn. VII-XII.
Mass in the Chinese language; S. »3 S. Kit. C'.t March a8, 1775
C. P. F., Jan. 7. 1755 {Coll., n. (Die. Auth. 3503).
394 ).
jle
i" * ^ v -.!,» Original from
UNIVERSITY OF WISCONSIN
CANON 820
161
in the cathedral or mother church begins. Besides, ac-
cording to the decree,84 this permission must be obtained
anew every year. However, even setting aside the con-
trary custom, the bishop can undoubtedly issue a fac-
ulty to be valid for a number of years. In a large dio-
cese the annual issuance of such faculties would cost
time and money without any special benefit.
Religious communities, under a decree of the S. Con-
gregation of Rites," may have one Mass said in their
chapels, even though the prescribed liturgical functions
are not performed there on the three days preceding
Easter. If they have no chapel of their own, they may
hear a private Mass in a neighboring church, but the
doors must be shut." If a feast of obligation falls on
Maundy Thursday, it must be transferred to the day fol-
lowing Low Sunday, but the obligation of hearing Mass
and abstaining from servile work remains attached to
the original day.87
On Good Friday only one Missa Praesanctificatorum
may be celebrated, and priests who have two parishes to
attend to are not allowed to binate on that day."
On Holy Saturday only one solemn Mass may be cele-
8*S. Rit. C., July 31, 1821 ad 1
{Dec. Aulh., n. a6i6); "pttita quo-
to mi, s venia " is put in brackets.
85 S. Rit. C, Aug. 31. 1839 (Dec.
Aulh., n. 2799). This may be ex-
tended to seminaries and pious places
which have their own chaplain and
the right of preserving the Rl. Sac-
rament. S. Rit. Cm June 28, 1821,
ad 1 {Dec. Aulh., n. 2616); whether
the venia Episcopi. as Gasparri (/. c,
n. 61) maintains, is required, if
douhiful. Contrary custom would
rather deny it.
80 Doubtless this provision was
added because of the parochial serv-
ice, whh which the private servic*
should not clash.
87 S. Rit. C, Sept. 13. 1692 W'c.
Auth., n. 1883). If the feast of the
Annunciation falls on Good Friday
or Holy Saturday, the whole feast
with all the obligations is to be
transferred to the Monday after
Low Sunday; S. Rit. C, March 11,
1690. If a patron feast falls on
that day. the obligation of abstain-
ing from servile work remains for
Good Friday, but the obligation of
hearing Mass ceases; Gasparri, /. c,
n. 85 f.
ss Benedict XIV, Dt Sacrif.
Mitsae, 1. Ill, c. 5, n. 5,
oogle
Original from
UNIVERSITY OF WISCONSIN
162 ECCLESIASTICAL THINGS
brated in churches in which the liturgical functions of
Holy Week are performed. Private Masses are not
easily allowed in any church on that day.88 In small or
poor parishes a low Mass may be said if custom permits.
But neither a local nor personal indult permits private
Masses to be said in churches which are not parish
churches. Therefore a special indult is required for
such, and the priest who says this Mass must omit every
ceremony and commence with the Confessio without the
Introitus. A bishop who ordains on that day in his pri-
vate chapel must begin the Mass with the prophesies.40
Priests of the Oriental Rite do not say Mass on days of
strict fasting. Thus during Lent they celebrate only the
Missa Praesanctificatorum, except on Saturdays, Sun-
days, and high feastdays, when they say Mass as usual.
"a
■
the hour for saving mass
Can. 821
§ 1. Missae celebrandae initium ne Bat citius quam
una bora ante auroram vel serius quam una hora post
meridiem.
§ 2. In noctc Nativitatis Domini inchoari media
nocte potest sola Missa conventualis vel paroecialis,
non autem alia sine apostolico indulto.
§ 3. In omnibus tamen religiosis seu piis domibus
oratorium habentibus cum facultate sanctissimam Eu-
charistiam habitualiter asservandi, nocte Nativitatis
Domini, unus sacerdos tres rituales Missas vel, serva-
tis servandis, unam tantum quae adstantibus omnibus
ad praecepti quoque satisfactionem valeat, celebrare
potest et sacram communionem petentibus ministrare.
»t S. EUt Cm Feb. \z, 1690 (Dec. AutK, n. 1622").
40 Ga*parri. (. c, n. 88 (T.
Go >gle
j ^ Original fro rn
UNIVERSITY OF WISCONSIN
CANON 821 163
§ I, Mass should not be commenced earlier than
one hour before dawn, nor later than one hour after
noon.
The starting-point is dawn, or daybreak (aurora),
which, of course, depends on the hour of sunrise. Dawn
in our country lasts about one hour and a half.*1 There-
fore a priest is allowed to begin Mass about two hours
and a half before sunrise. This, we believe, should be
early enough for all reasonable demands, especially since
the legislator himself has now added one hour to the time
allowed before by common law. We do not believe that
exempt and other religious who claim the privilege,
granted after the Council of Trent, of celebrating one
hour before dawn and one hour after noon, will now be
allowed to extend the same to two hours. For the leg-
islator by extending the time has not extended the start-
ing-point (dawn) for the privilege. The privilege
granted before the Council of Trent appears somewhat
doubtful and it is in the ordinary power of bishops to
compel even exempt religious to abide by the rule fixing
the hour for celebrating Mass.42 But we would not
doubt the right of anticipating the hour of celebrating
Mass when necessary for administering the viaticum48
for devotion's sake. Another case of necessity would
undoubtedly be the obligation of hearing Mass for work-
ing people who would otherwise have to arise before
five o'clock in winter. (In summer time the case of ne-
cessity would hardly i>e verified.) Still another case of
necessity would arise for the priest from the precept of
«i See the table of duration of Oct. 13, 1 hour and 31 mio. Sec in-
dawn io Benedict XIV's Inst., 13, fra. Appendix.
and Gajparri's. De Ssma Euchtl Vol. *2 Benedict XIV, Itut.. 68, n. II,
I, p. 65. Dawn, on Mar 1. lasts W'Praeceptum jumendi viaticum
here, at Conception, Mo., 42nd dc- practalct legi ecelesttutico* de ttm-
gree latitude, one hour and 45 min. ; pore celebrandi Missam." — S. C. P.
on Jan. I, : hour and 39 min.; on FM Feb. 39, 1836 (Coll., a. &a6).
"-.
jle
Original from
UNIVERSITY OF WISCONSIN
164 ECCLESIASTICAL THINGS
St
hearing Mass on a holyday, which otherwise could not be
complied with by reason of a necessary journey.44
The bishop may permit Mass, especially on a solemn
occasion, to be protracted until after two p. m.15 But he
is not empowered to forbid the saying of Mass before
sunrise.4' In countries where there is hardly any dawn,
as in the polar regions, Mass may commence about the
time people arise and go to work.47
§ 2. On Christmas night only the conventual or paro-
chial Mass may be commenced at midnight to the ex-
clusion of every other Mass not granted by special Apos-
tolic indult.
§ 3. In all religious or pious houses which possess an
oratory with the faculty of habitually keeping the Holy
Eucharist, one priest may say one or three Masses accord-
ing to the rubrics Christmas night. Those who assist
thereat comply with the obligation of hearing Mass,
and Holy Communion may be administered to such as
desire it.
The moment at which Mass may be begun on Christmas
is the hour of midnight, not before. Hence it would
be an abuse to commence Mass so early that the priest
would be at the gospel or elevation when the clock
struck twelve.411 There is no strict obligation (inckoari
potest) to commence at midnight, for the service may be
postponed if there is an impediment. But the rubrics
require of those bound to say public office, like cathe-
a
dral chapters, and most of the regulars, that they sing
44 Noldin, I. c, n. 204; Mire, I, c, brated at daytime is because Christ,
II, n. 1635. the brightness of eternal light, ia
45 S. Rit. C, July 7, 1899 (Die. offered up therein.— Benedict XIV,
Amth., b. 4044). Inst., 13, n. a.
«eS. Rit. C. Jan. 10, is*7 (Die. «B S. Rit C. May 11. 1878. ad
Autk., n. <,.). XV; June 2, 1883, ad X (Dec.
*T Cong. SpecisJis, Sept. 18, 1634. Auth., no. 3448) 35 7 cJJ .
The reason why Mass is to be cele-
"-.
>Ie
f^ -» •. J„ Original fro m
UNIVERSITY OF WISCONSIN
CANON 821 165
Matins before the Mass and Lauds after it. This order
may not be changed on that day.48
Our text clearly states that only the conventual or
parochial Mass may be commenced at midnight. Hence
neither canons, nor dignitaries, nor regulars of any kind
or exemption, nor religious in general, may, in virtue of
the common law, say three Masses immediately after
midnight.80 The priest who says the conventual or
parish Mass at midnight must wait with the other two
Masses until the rubrical time has arrived,61 that is to
say, till about five thirty a. m., when he may say the other
two. It requires an apostolic indult to say the three
Masses one immediately after the other, commencing at
midnight. An indult, though a species of privilege, is not
given by way of communication, and therefore no com-
municatio privilegiorum is permissible in this case. This
is evident also from the fact that the custom of cele-
brating the three Christmas Masses at midnight has been
condemned as an abuse which must be entirely elimi-
nated."
§ 3, then, grants by universal law a favor which form-
erly was given only by a special indult. Thus, for in-
stance, the Ursulines, their pupils and lay sisters enjoyed
this privilege of a Mass and Holy Communion at mid-
night," where their rules approved by the Holy See pre-
scribed this custom.0* Pius X, the great promoter of
devotion to the Blessed Sacrament, extended this favor
to all religious institutes, pious houses and clerical sem-
« S. Rit. C, April 3, 1830 (Die. 62 S. Rit C, Sept 18, 1781 (Dec.
Auth. n. 2676). Auth., n. 3520).
60S. Rit. C, No*, aa, 1681; bs S Rit. C. July 37. 17*0 (Dee.
March 23, 1686 (Dec. Auth., nn. Auth., 11. 2267).
1683. 1761). 04 S. Rit. C, Aug. 7, 1871, ad IX
fti S. Rit. Cm Not. 14. 1676 (Dec. Auth.. o. 3.-54).
(Dec. Auih., n. 1584).
, ,1,., Original from
UNIVERSITY OF WISCONSIN
>gle
166 ECCLESIASTICAL THINGS
inaries.58 Our text simply says : "in all religious or
pious houses" What a religious house is may be seen
from can. 488, 50, where such a house is said to belong to
a religious institute in general. From this it follows
that all communities of religious may enjoy the right
granted in this canon. A pious house is one where
Christian chanty is practiced under the supervision of
ecclesiastical authority. Charity here comprises every
species of good works, educational, corporeal works of
mercy, etc. But it is essential that such a house be su-
perintended by ecclesiastical authority." To this class be-
long hospitals, asylums for the aged, orphans, and found-
lings, clerical seminaries, and houses of religious societies
of men and women (see can. 673). The latter cannot
strictly be called religious houses, because not inhabited
by religious in the canonical sense of the word, but in a
wider sense they may safely be styled religious houses.
A doubt may arise concerning hospitals conducted by
religious but really superintended by lay or civil officials.
However, if the religious form a community of their
own, and have their own oratory, in which the Blessed
Sacrament is kept, we would not exclude them from
the benefit granted by this canon. A different status is
that of our State asylums and penitentiaries. They are
purely secular institutions, entirely managed by seculars,
even though there be a temporary chapel where the
Blessed Sacrament could hardly be kept. These, there-
fore, are not entitled to the favor here in question.
Our canon requires that in all such houses there be an
oratory endowed with the privilege of liabitually keep-
ing the Blessed Sacrament. According to certain decrees
of the Holy Office, of 1907 and 1908, it makes no differ-
B6 S. 0., Aug. 1, 1907; Not. 26, Bfl Devoti, Institut. Canonic., 1874.
1908 (A. Ap. S., I, 146). Vol. I. p. 560; cfr. can. T489.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 821 167
ence whether this oratory be public, semi-public, or pri-
vate. If it is a private oratory, an apostolic indult is
needed to keep the Blessed Sacrament, whilst for a semi-
public or public oratory the permission of the Ordinary
is sufficient, as shall be seen under can. 1265.
The text furthermore says that one priest (unus sa-
ccrdos) may say one or three Masses (Missas ritualcs).
Hence if there are more than one, the others must say
Mass later. The three Masses must be said according
to the rubrics, t. e., as they follow each other in the Mis-
sal, and not all three according to the formulary pro
Missa in Node. But if a priest (for instance, an as-
sistant at the cathedral who is also chaplain of a con-
vent or hospital) says only one Mass, he is bound to
observe what the law prescribes, servatis servandis. In
other words, if he says but one Mass at midnight, he
must say the other two Masses according to the rubrical
time, i. e., the second not earlier than about 5.15 or
5.30 a. m., and the third, de die, after that.
The last clause is an extension of the decrees of the
Holy Office of 1907 and 1908, which require that the
doors of the oratory be shut (ianuis clausis). Our
canon contains no such clause, wherefore outsiders, for
instance, friends and relatives, may be admitted and by
assisting comply with the precept of hearing Mass on
Christmas Day, and also, if they so desire, receive Hoh
Communion. This is plainly expressed in the words:
adstantibus omnibus, all who assist. But this favor can
not be extended to the churches of religious, whether
exempt or not, for not only was it directly denied to them
by decree of the Holy Office, Nov. 26, 1908," but our
'■" "An indullum vratoriis con- puli utui inserviuntT Negative,
cestum extendi possit ad ecclesias salvo tamen religiosorttm priinlegio
reliaiosornm. Quae Publico fidelis po~ in media node Missom celebrandi."
jle
f~* ^ * ,l,» Original from
UNIVERSITY OF WISCONSIN
Q
N
■
168 ECCLESIASTICAL THINGS
text itself excludes such an extension, as it speaks only
of religious or pious houses which have an oratory, not
of churches. The reason obviously is not to create a
prejudice against parish churches. However, the same
decree allows, and the text of our canon does not forbid,
religious to have a midnight Mass for themselves, i. e.t
behind closed doors, at which the members may receive
Holy Communion.
the place for saying mass
Can. 822
§ 1. Missa celebranda est super altare consecratum
et in ecclesia vel oratorio consecrate aut benedicto
ad normam iuris.
§ 2. Privilegium altaris portatilis vel hire vel in-
dulto Sedis tantum Apostolicae conceditur.
§ 3. Hoc privilegium ita intelligendum est, ut se-
cumferat facultatem ubique celebrandi, honesto ta-
men ac decenti loco et super petram sacram, non autem
in mari.
§ 4. Loci Ordinarius aut, si agatur de domo re-
ligionis exemptae, Superior maior, licentiam cele-
brandi extra ecclesiam et oratorium super petram sa-
cram et decenti loco, nunquam autem in cubiculo, con-
cedere potest iusta tantum ac rationabili de causa, in
aliquo extraordinario casu et per modum actus.
§ 1. Mass must be celebrated upon a consecrated al-
tar and in a consecrated or blessed church or oratory.
The Latin Church does not allow the unbloody Sac-
rifice to be offered except on an entirely consecrated altar,
or at least on an altar stone consecrated according to the
prescribed rules (see can. 1197 ff.). The Orientals use
Gi r Original from
OOglt UNIVERSITY QFWI5C0NSIN
CANON 822 169^
LI
o>
a so-called antimension or linen cloth blessed by the
bishop, into the corners of which relics are sewed, and
which is spread over the altar table."
The general rule for the Latin Church is that, outside
the case of extreme necessity, it is never allowed to say
Mass in a place which is not sacred (in aedibus non sa-
cris),59 or, as our text has it, outside a church or an ora-
tory which is either consecrated or blessed. In private
and semi-public oratories, which are neither blessed nor
consecrated, Mass may be celebrated only if they fulfil
the necessary requirements, as stated in can. 1196. In
private houses, especially sick persons, it is allowed
to say Mass only if the viaticum can be neither secretly
nor publicly brought to the sick.80
The altar stone must contain sacred relics. If the
in
relics have been removed, the stone must be reconse-
crated. To consecrate altars without relics for saying
Mass requires a very special indult, such as was given to
vicars Apostolic in times of persecution.61
§ 2 and 3. The privilege of a portable altar is granted
either by law or by an indult of the Holy See. This
privilege carries with it the faculty of celebrating Mass
in any place, provided it be respectable and decent, and
upon an altar stone ; only celebration at sea is excluded.
Before the Council of Trent bishops were empowered to
grant permission to have a private oratory for the pur-
pose of having Mass said therein, but after the Council
this right, and consequently also the grant of a portable
altar, was reserved to the Apostolic See.031 This change,
§S Benedict XIV, "Imposito No- Aprfl 30. *753 (Coll., nn. 172, 388).
bit," March 29. '75'. I 4J !»-. De «i S. Rit. C, Oct. 6, 1837: I>cc. 7.
Sacrif. Missae, L I, c. 2; cfr. cc. 1844; May 23, 1846 (Dec. Auth.,
1, 2, it, Dirt. 1, Je com. nn. 2777, 2876, 2911); S. C. P. F.t.
•0 Benedict XIV, "Jnttt omni- Jan. 14, i8cj; May 14, 1681 {Coll.,
gtnai," Feb. 2, 1774, I 22. nn. 660, 223).
eoS. C. P. F., Dec. 14, 1668; « Benedict XIV, "Mt*o atm
"-.
C* J ^ Original fro m
lOOglt. UNIVERSITY QFWI5C0NSIN
■
170 ECCLESIASTICAL THINGS
however, did not affect the private oratories in episcopal
palaces, because the latter are not comprised under the
name of private houses.08 Therefore episcopal oratories,
as well as those of Cardinals," exist by law. If special
privileges are asked for, the S. C. Sacr. is competent
to grant them.65
It must be added that even exempt religious require a
special privilege, ratified after the Council of Trent, to
make use of a portable altar, and the Ordinary, in vir-
tue of Sess. XXII, decretum de obscrvandis et eviiandis
in celebratione missae, may proceed against them if they
presume to celebrate upon a portable altar or keep such
an altar in their rural houses.00 All privileges granted
to that effect before the Council of Trent, even by the
Pope himself, must be regarded as revoked.07 On the
other hand, Cardinals as well as bishops may continue
to use the portable altar even without the permission of
the local Ordinary in whose diocese they may wish to
say Mass.68 The clause, " non autcm in mari " does not
apply to Cardinals and bishops,00 but to all others, unless
besides the indult of a portable altar they also have a
special indult permitting them to celebrate Mass on ship-
board.70
§ 4. The local Ordinary, or, in the case of an exempt
religious house, the higher superior, may grant permis-
mimt." June 2, 1751. 8 m Id.; 0* on IScnedict XIV. De Sacrif. Mu~
Sacnf. Missae. III. 6, 5 f- '«. 1. III. 6; n. s: cfr. c. 12, 6°. V,
•3 Benedict XIV, Const, eit., 8 2. f.
o« !':": can. -■ -.•>, 8 1. 7"'. can. 09 Can. 239, 8 ■• u. 8; can. 349, I
349. 8 Si n. 1. I, n. 1.
U Normat Feculiares, c. VII, art. t> S. Rit. C, March 4, 190:, ad 4.
3, n. 11 (.4. Ap. S., I, 88). (Anal. Eccl., t. 9, 115): "Si cmpellm
00 S. C. C, June 4, 1672, Aug. naiium locum fixum habeat in ruK'i,
20, 1761 (Richie:, Trid., p. 130, nn. uli Publica pro navtrantibus ha-
9 f.). benda esl ; *ec*>s nequt publico est
07 S. C. C, March 23, 1907 (Anal. ncque privato, scd habetur ut a/fart
Eccl., t. 15. 101 fl.). pontile;" ad V. ibid.
jle
^ ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 822 171
sion to say Mass outside a church or oratory, upon a con-
secrated altar stone, provided the place is decent (no
bed room) and the permission is granted for a just and
reasonable cause, for extraordinary cases only, and not
habitually.
This canon contains part of the faculty formerly
granted to our American bishops.71 Two Ordinaries are
named in § 4: the local Ordinary and the Ordinary of
exempt religious. To begin with the latter, note that the
major superior of exempt religious can give the per-
mission in question only with regard to a house of his
own religious institute. Hence he cannot permit his sub-
jects to say Mass in a strange place not owned by the
religious, for instance, on a missionary trip.72 In this
case the competent Ordinary would be the Ordinary in
whose diocese the religious wishes to say Mass. But if
the house belongs to, and is occupied by, religious of the
same order, the legitimate superiors, i. e., the general, the
provincial and all those who represent the former, may
grant the permission in question.
The local Ordinary is the one commissioned to watch
over his diocese, and is responsible for abuses which may
creep into it. He may grant the permission in question
under the following conditions :
( 1 ) That Mass be said upon an altar stone which con-
tains sacred relics and is validly consecrated and pre-
pared."
(2) That the place in which Mass is to be said is
decent or respectable. Decency must be gauged not by
adornment merely, but by the respect and reverence due
to the august Sacrifice. It is forbidden to say Mass in
71 Form I, Mi. 6; cfr. Putzer, 73 S. C. P. F., Feb. 39. i8j6
Comm., p. 177 ff. (Coll.. n. 846).
72 S. C. P. F., Nov. 18, 1765
(Coll., n. 461).
>Ie
k ,1,., Original from
UNIVERSITY OF WISCONSIN
172 ECCLESIASTICAL THINGS
the churches of heretics and schismatics (see can. 823,
,§ 1), and it would be improper to offer the holy Sac-
rifice in the private houses of unbelievers or non-Catho-
lics. Theatres and Masonic temples could hardly be
styled respectable places for saying Mass, although the
former might be used in case of extreme necessity. The
open air would be a decent place.
(3) That no permission be given to say Mass in bed-
rooms (in cubicttlis). Hence it would be better, in case
of necessity, to choose the living or sitting room for say-
ing Mass. However the S. C. Prop, has given permis-
sion to say Mass in the sleeping room of a sick person (in
cubicttlo in fir mi) if there is no other way of administering
the Viaticum.74 But then the minister should see to it
that there are no indecent or superstitious emblems or
pictures in the room."
(4) That the permission be granted for a just and
reasonable cause. As stated above, the Blessed Sacra-
ment may never be exposed to irreverence, nor should
the faithful be scandalized. A just reason would be if
an epidemic raged in the town or city which would neces-
sitate the closing of the churches; if there were no Cath-
olic church or public oratory in the town or city," or if
the precept of receiving Easter communion could not
otherwise be complied with; or if the administration of
the Viaticum required it." War and social disturbances
would be an additional reason for granting the permis-
sion.
(5) This permission, however, is not to be understood
as an habitual faculty or a right to be used by the priest
ad libitum, but only, as the text says, "in casu extraor-
-
74 S. C. P. F.. April 30, 1753 7« S. C. P. F.. April 30. 1753. *d
{Coll.. n. 388). a ct 4 (CotL, n. 388).
tb S. C. P. F., Sept. 6, iBji II S. C. P. F., Sept. 5. »8ji (Coll.,
(Coll., a. 764). n. 764).
p
>Ic
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 823 173
dinario et per modum actus." This would seem to imply
that a priest should ask for it every time he deemed it
necessary. However, we believe the Ordinary can grant
the permission to priests in such a way that they would
not have to ask for it every time they needed it, provided,
of course, the conditions set forth in this section be pres-
ent.78 Lastly, it may be noted that this permission may
be granted so as to allow Mass to be said in private
houses and on any day ; ™ but the permission must be is-
sued gratis.80
Can. 823
§ 1. Non licet Missam celebrare in templo haeretico-
nun vcl schisrnaticorum, ctsi olim rite consecrato aut
benedicto.
§ a. Dcficiente altari proprii ritus, saccrdoti fas est
ritu proprio celebrare in altari consecrato alius ritus
catholici, non autem super Graecorum antimensiis.
§ 3. In altaribus papalibus nemo celebret sine apo-
stolico indulto.
p
§ I forbids saying Mass in churches of heretics and
schismatics, even though these may have once been duly
consecrated or blessed.
That the church sometimes reconsecrates temples for-
merly belonging to heretics, is proved by historical ex-
amples dating back to the sixth century (Arians).81
From this practice it follows that churches once conse-
crated and hallowed by Catholic services, when they have
fallen into the hands of non-Catholics, are considered
desecrated and therefore unfit for the celebration of the
■
ft S. C. P. F., Feb. 29. 1836 «"S, C. Sacr.. Dec J3. 191a, ad
{ColL, o. 8«6>, 1 (A. Af. S., IV, 715).
Ti S. C. Sacr., Match aa, 1915. « Cfr. cc. if, 22, Dint. 1, d#
ad 1 {A. Ap. S., VII, 147). com.; Benedict XIV. "lam inde,"
May 12, 1756. I 3.
>ogle
/""* -» ^ iL» Original from
UNIVERSITY OF WISCONSIN
174 ECCLESIASTICAL THINGS
Sublime Mystery. The decisions of the Roman Court are
to the effect that rather than say Mass in a non-Catholic
temple a priest should use a portable altar or celebrate the
Holy Sacrifice in a private house." However, the Holy
Office once permitted the archbishops of Antivari to use
a schismatic church, provided a separate Catholic altar
was set up therein and one part of the church was re-
served exclusively for Catholics.88 But this was a case
of necessity. Ordinarily priests should rather make use
of portable altars. In another instance the Holy Office
permitted the simultaneous use of a garrison chapel at
Malacca for Catholic and non-Catholic services, but in-
structed the Vicar Apostolic to ask the government to
build a separate chapel, or, if that could not be done,
to build one himself from alms collected. It may be
added that Clement XI permitted Catholic services to be
held in so-called " simultaneous churches B* in Switzer-
land.98
§ 2. A Latin priest may celebrate Mass on a conse-
crated altar of another rite, but not upon a Greek anti-
tnension. These antimensia being, as stated, not altar
stones, but consecrated sheets of linen, do not come up
to the requirements of the Latin Church.88
§ 3. On papal altars no one is allowed to say Mass
without a special indult. Benedict XIV gives two rea-
sons why an altar is called papal: either because it was
consecrated by the Pope or because he said Mass upon
Q
82 S. C. P. F.. May ll, 1627; »3 S. O.. Jane 13. 1634 (Coll.. n.
Feb. 13, 1629; May 7, 1631 (Coll. 75); Putzer, /. c, p. 279. " Sirnul-
nn 34, 47, 69): neither chalices nor tancous " churches arc those in
vestments of schismatics may be which Catholics and Protestants hold
used. service at different hours.
88 S. O., Dec. i, 1757 (Cell., n. «« BencJict XIV, " Etii pastor-
408). otis," 5 VI, nn. VIII, XIX; S. O.,
84 S. O., June 5, 1889 (Coll., n. June 7, 1726 (Coll., n. 306).
1707).
ogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
■"■
CANON 824 175
it.87 Several altars in Rome are called papal, viz., those
of the patriarchal basilicas of St. John Lateran, St. Peter,
St. Paul, and Santa Maria Maggiore. There are also a
few papal altars outside Rome. Benedict XIV sent one
to Lisbon Be and on another occasion declared the high
altar on the side of the pontifical throne in the church of
St. Francis at Assisi a papal altar.80 From this we may
conclude that to the two reasons stated a third must
be added, via., a special distinction granted directly by
the Sovereign Pontiff. The consequence is that no one,
not even a Cardinal or bishop, may say Mass on such an
altar without a papal indult. This indult is generally af-
fixed to the altar when another than the Pope says Mass
on it The reason for this rule lies in the dignity of
the consecrator or grantor of the privilege.90
ARTICLE IV
alms or stipends fob masses
Can. 824
§ 1. Secundum receptum et probatum Ecclesiae mo-
rem atque institutum, sacerdoti cuilibet Missam cele-
branti et applicant! licet eleemosynam seu stipendium
recipere.
§ a. Quoties autem pluries in die celebrat, si unam
Missam ex titulo iustitiae applicet, sacerdos, praeter-
quam in die Nativitatis Domini, pro alia eleemosynam
recipere nequit, excepta aliqua retributione ex titulo
extrinseco.
§ 1 approves the time-honored custom which allows
tT'Dilcctus Filius," Jan. 15. B» " Fidclis Dominus," March 25,
174S. ( I (S. Maria Maggiore). '754*
88 " In postrenal," Oct. ao, X756t 00 Cfr. c. 97. D«t 2, it cons.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
i;6 ECCLESIASTICAL THINGS
every priest who says Mass to accept an alms or stipend
for the same.
In the early days of Christianity the faithful were wont
to offer bread and wine at each Mass which they at-
tended. Money too was sometimes laid upon the altar,
intended either for the poor members of the congrega-
tion or for the clergy in common. The practice of giving
alms to a determined priest so that he might offer the spe-
cial or ministerial fruit of the Holy Sacrifice either for
the donor or his relatives and friends, began about the
eighth century and became universal after the twelfth.
There is no incongruity in applying the Mass for a special
person or purpose. For, although the Holy Sacrifice, by
reason of its main offerer and object, viz., Christ, is of
infinite value, yet the special fruit or effect is not infinite,
and therefore one person may derive greater profit from
it than the rest, and repeated oblations for a particular
person or object will produce their effect more certainly
and abundantly.*1 Nor is there any simony connected
with receiving a Mass stipend. For, as St. Thomas
says,82 the priest does not receive the stipend as a price
for the consecration of the Holy Eucharist, but as part of
his support. Hence Wiclif and his followers misunder-
stood the nature of prayer for others when they called
those who obliged themselves to pray for others simon-
ists." Mistaken also was the notion of the pseudo-coun-
cil of Pistoja that the application of the priest did not
produce a special effect in favor of those for whom it
was made, and that the acceptance of stipends was a
shameless abuse.9* It cannot be denied, however, that
abuses did creep in. Some avaricious priests either
-
•l Benedict XIV, De Sacrif. Mis- 08 Cfr. prop. 2$ (Denzinger, n.
sat, 1. III. c. ?i, nn. 1-7. 501).
08 Summo Thtol., II— II, q. a, art, ©4 Propp. 30, 54 (Dencinger, no.
a. ij93i 1417).
Q
"■
^
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 824 177
traded in Masses or said Mass several times a day for
filthy lucre's sake." These abuses prompted the Church
to enact, in the matter of stipends, severe laws, which are
now embodied in the Code. We add to § 1 only one
comment, namely, that the text requires that Mass be said
and applied. Saying Mass, therefore, is not sufficient to
justify a stipend, but application of its special fruits must
be made at least before the consecration of the wine. A
habitual intention once made and not consciously re-
tracted suffices. It is also sufficient if one celebrates ac-
cording to the intention of the superior who distributes
Masses to his subjects. If one has received a number
of stipends and does not remember from whom or in
what order they were given, it is sufficient that he say
them with the intention to apply them in the order in
which they were given. If another has collected the
stipends, it suffices that the one who says the Masses
have the intention of saying them according to the order
intended by the distributor."
§ 2. A binating priest who is obliged to apply one
Mass ex titulo iustitiae, is not allowed to accept a stipend
for the other. An exception to this rule is Christmas
Day, on which a priest who says three Masses may accept
three stipends. A partial exception to the general rule is
the privilege of accepting some compensation for the
other Mass for a reason which is extrinsic to the nature
of a Mass-stipend as such (ex titulo extrinseco). Our
parish priests and bishops are now obliged in justtce to
apply Holy Mass for the people (pro populo) on Sun-
days, holydays of obligation, and the suppressed holy-
days mentioned in can. 466 and 339 (see Vol. II of this
Commentary).87 No pastor is allowed to accept a stipend
■"■
•6 Benedict XIV, I. c, n. 8. «T Vol. II, p. 550. See *Ik> S. C.
«e LehmkubJ, I. c, II, n. 188 f. C, July 13. 1918 <.-!. Ap. S., XI,
ogle
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
178 ECCLESIASTICAL THINGS
on such days. For the titulus iustitiae is strictly attached
to the obligation of saying Mass for the people. The only
exception is for Christmas Day, when the pastor must ap-
ply only one Mass for his people, and may accept stipends
for the other two.08 On All Souls' Day he may receive a
stipend for one of the three Masses ; and even if he says
only one, he is entitled to a stipend." For this day is not
one of the holy-days mentioned in canons 466 and 339.
Now what is an extrinsic title which permits a priest to
accept a remuneration for one Mass, whilst he is obliged
to offer another ex titulo iustitiaef The general rule
may be stated thus: It must not be of the nature of a
stipend given for the application of the special fruits,
nor of the nature of a just claim which would oblige the
priest to apply them ex iustitia. The Church has never,
except for very special reasons, allowed the acceptance
of two stipends on one day. An extrinsic title, there-
fore, would exist if one had to walk a considerable dis-
tance to say a Mass for which he is not entitled to accept
anything, or if he had to fast for an unusually long time
to impart an extraordinary instruction to which he were
not otherwise obliged.1 Besides if bound merely by the
titulus caritatis, he would be allowed to say Mass to which
this title obliges him. There is an authentic decision to
this effect. A congregation of priests obliges its members
to say one Mass for every deceased member. The ques-
tion arose; May a priest of that society, when he bi-
46 ff.), S. C Cons., Aug. 1, iqiq »8 Benedict XIV, "Quod txpen-
(A. Ap. S., XI, j46 f.)f has de6- sis," Aug. 36, 1748; S. C. C, Sept.
nitely settled this question. For the as, 1858.
decree quoted requires three tilings: 90 Benedict XV, " Incruentum,"
definite boundary lines, residence. Aug. 10, 1915 (.A. Af* S.. VII, 403)-
and endowment. And these condi- t S. C. C, May 23, 1861 ; cfr.
tions certainly obtain in many city, Prummer, Theoi. Morai., Ill, n.
and even in some country parishes. a8S.
oogle
f* ^ ^ ,L» Original fro ni
UNIVERSITY OF WISCONSIN
CANON 824 179
nates, apply the second Mass for a deceased member?
The S. Congregation answered yes.2 From this we may
infer that the members of a purgatorial society of priests,
on days on which they are allowed to binate, may apply
one Mass for their people (or accept a stipend if they
are not obliged to say Mass pro populo), and say the
other for a deceased member of the society. For a pur-
gatorial society is based upon the titulus caritatis no less
than the above-mentioned congregation. We may fur-
ther conclude that priests of a religious community who
are compelled to binate, may apply one Mass for their
deceased members, and the other either pro populo or
for the donor of a stipend. Here again the titulus cari-
tatis is obvious.
This extrinsic title, however, cannot be invoked for the
two Masses which the priest says on AH Souls' Day, one
for all the deceased faithful and the other according to
the intention of the Supreme Pontiff. Therefore, even
if he has to say Mass at an inconvenient hour, or in a
rural oratory, or on a cemetery, he is not allowed to ac-
cept anything for his labor or inconvenience. Further-
more, the stipend to which priests are entitled for one
Mass must not exceed the usual or customary or synodal
tax, though they are allowed to accept free offerings that
are in no wise solicited. Besides, priests are forbidden
to receive a stipend and apply the other two Masses which
they may say on All Souls' Day for another person or
purpose, reserving the two for the poor souls and ac-
cording to the intention of the Holy Father for another
day. The bishop may proceed against priests who fail to
D
2 S. C. C. Sept. 14. 1878 (Coll. es titulo iustitiae or stipendii, oth-
P. P., d. 1500); it is, of course, sup- erwise no decision would bare been
puscd, thai the priest says one Man required.
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
N
■
'.■-.
180 ECCLESIASTICAL THINGS
comply with these rulings with ecclesiastical censures,
including suspension.8
The S. C. Propaganda sometimes, for particular rea-
sons, granted permission to receive a stipend for both
Masses a priest had to say.4 But this faculty was never
given in virtue of the formularies formerly issued, nor
is it to be expected now, except in very extraordinary
circumstances.
Can. 825
Nunquam licet:
i.° Missam applicare ad intentionem illius qui ap-
plicationem, oblata eleemosyna, petiturus est, sed
nondum petiit, et eleemosynam postea datam retinere
pro Missa antea applicata;
2.0 Eleemosynam recipere pro Missa quae alio ti-
tulo debetur et applicatur;
3.° Duplicem eleemosynam pro eiusdem Missae ap-
plicatione accipere;
4.0 Alteram recipere eleemosynam pro sola celebra-
tions, alteram pro applicatione eiusdem Missae, nisi
ccrto constet unam stipcm oblatam esse pro celcbra-
tionc sine applicatione.
It is forbidden:
i.° To apply a Mass for the intention of one who may
ask for the application of a Mass and offer a stipend in
future, but who has not yet asked for it, and to keep the
stipend afterwards given for the Mass already said.
This would be a sort of interpretative intention. The
priest, in this case, only surmises or supposes that he is
to receive a stipend, but is certain neither as to the per-
s S. C. C, Oct. 15. I9"5 (A *P- »4* 1870 id 18 {Coll., nn. 1244,
S., VII, 480). 135a).
«S. C P. F., Oct. is, i«6*; May
>Ie
Original from
UNIVERSITY OF WISCONSIN
—
a
N
■
CANON 825 181
son nor as to the stipend expected. This practice was
strictly forbidden by the S. Congregation, though some
theologians, especially in Spain, had defended it.5
It would not be contrary to law if one said Mass for
the intention of a person who requested the favor but
would offer the alms only after the Mass had been ap-
plied.
It is unlawful :
2.0 To receive a stipend for a Mass which is due and
must be applied for some other reason. Thus a pastor
who is obliged to apply a Mass for his people, may not
receive a stipend for the same, even though his salary
is not sufficient to support him.8 A canon or beneficiary
who is bound to apply Mass for the benefactor or founder
of the benefice or chaplaincy, is not allowed to receive
a stipend other than the one that may accrue from the
benefice or foundation.7 For a conventual Mass, which
is generally offered for the living and the dead bene-
factors of the community, no stipend may be accepted.8
It is furthermore forbidden:
3.0 To accept two stipends for the application of one
and the same Mass. Even after the Council of Trent,
which branded the abuse of Mass stipends as akin -to
simony, there were theologians who thought it permis-
sible to receive two stipends for one Mass. The reason
they gave was that the fruit of the Mass which may be
disposed of by the priest according to his own good
pleasure, is of two kinds: satisfactory and impetratory.
The former may be applied for a deceased person and
the latter for a living sick person. Besides, they argued,
i Benedict XIV, Dt Sacrif. Mu- * S. C. C„ Not., 1702; Sept 18,
sae. III, 22y 10. 1603 {ibid., mi. 33, 64).
• S. C. C, Aug. 30, 1608: Feb. »S. C. C. June a8, 1708; May
1716 (Richter, Trid., p. 134, a. 32)- 16, 1733 (ibid., nn. 56, $8).
gle
,1,., Original from
UNIVERSITY OF WISCONSIN
1 82 ECCLESIASTICAL THINGS
St
the priest may, as it were, give up his own personal
fruit for the benefit of another and therefore receive a
a
stipend for that as well as for the special or ministerial
fruit. Hence, they held, it is permissible to receive two
stipends for one and the same Mass. But neither the
Holy Office nor the S. Congregation of the Council shared
this opinion; on the contrary, they condemned the practice
based upon it.9
It is unlawful, finally,
4.0 To receive one stipend for the celebration, and an-
other for the application of the same Mass, unless it is
certain that one stipend has been offered for the celebra-
tion alone without the application. Two decisions of the
S. Congregation may illustrate this text.10 A pious tes-
tator had founded a benefice or chaplaincy with the ex-
press clause that the priest or beneficiary was not obliged
to apply the Mass. The S. Congregation decided that the
fruit or interest of the benefice might be accepted and a
stipend taken for the application of the same Mass. In
another case a founder had directed that a Mass be said by
the chaplain on every Sunday and holy-day of obligation,
without specifying on whose behalf it should be said or
applied. In that case, because nothing certain could be
deduced from the will, the chaplain was instructed to
apply for the benefit of the founder. Perfectly legitimate
is the acceptance of an offering for singing a High Mass
in the place of a sick or absent pastor, who may not be
able to sing that Mass on that day, but says nothing
about its application, for instance, pro populo. In that
case the substitute may accept the offering for the singing
BS. O., Sept. 34, 1665, prop. 8, 10 S. C. C, July 13. 1630; March
10 (Deminger, nn. $79, 981); S. C 18, 1668; Benedict XIV, Dt Sacrif.
C.„ Dec. 13, i8sg; Benedict XIV. Misia*. I. III. 32, 6 f.
De Sacrif. Muiot, I. Ill, 21, 4 f.
jle
J ^ Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 826 183
of the High Mass and receive a stipend for the special
intention. For it is evident that the offering is given for
the special labor of singing High Mass and accommodat-
ing the absent pastor, who would be obliged to sing it him-
self if he were at home.11
various kinds of mass stipends
Can. 826
§ 1. Stipcndia quae a fidelibus pro Missis offeruntur
sivc ex propria devotione, veluti ad manum, sive ex
obligatione etiam perpetua a testatore propriis heredi-
bus facta, manual i a dicuntur.
§ 2. Ad instar manuaJium vocantur stipendia Missa-
rum fundatarum, quae applicari non possunt in pro-
prio loco* aut ab iis qui eas applicare deberent secun-
dum tabulas fundationis, et ideo de iure aut Sanctae
Sedis indulto aliis sacerdotibus tradendae sunt ut iis-
dem satisfiat.
§ 3. Alia stipendia quae ex fundationum reditibus
percipiuntur, appellantur fundata seu Missae fun-
datae.
§ 1. Stipends offered, as it were, offhand by the faith-
ful for Masses, either out of pure devotion, or in the
form of an obligation, even perpetual, imposed upon his
heirs by the testator, are called manual.
§ 2. Quasi-manual are stipends for foundation-masses,
which for one reason or another cannot be said in the
church in which, or by the priest by whom, they should
be said according to the charter, and are therefore, either
a
c
o
IX This is alio true of a low Mass, enable the faithful to comply with,
especially if one would hsve to their duty on a Sunday or holy.day
travel a certain distance to say it of obligation.
for the required purpose, *. g.t to
"■
jle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
184 ECCLESIASTICAL THINGS
by law or by an Apostolic indult, to be handed over to
other priests.
§ 3. Other stipends which are received from the inter-
est of legacies, are called foundations. In order to under-
stand the distinction between these three kinds of Masses
we must proceed from the term foundation, which here
means a legacy or testamentary bequest of goods or chat-
tels, which,12 by a legal fiction, bears the character of an
artificial person or quasi-corporation. A foundation or
pious legacy made for a good purpose is what we call a
pia causa and possesses a juridical entity of its own. A
foundation or founded Mass in the sense of our canon
is a legacy made by a testator for the purpose of having
a Mass said either at a certain place (altar, chapel,
church) or by a certain priest. Such a legacy, to be
valid, must be accepted by those to whom it is made, and
made according to the rules prescribed by the Church.
It may entail special conditions or qualifications which
must be conscientiously carried out. A founded Mass,
therefore, would be one to be said on a certain altar or
in a certain church for all time. But if the testator had
expressly stipulated only a certain altar or church, but
no particular application, the Mass would not be a founda-
tion, though it might be a benefice or chaplaincy. On the
other hand, if the testator has not expressly excepted the
application of the Mass, it is always to be presumed that
the Mass is a founded Mass to be applied for the lega-
tcrius." Sometimes the testator determines the priest
who is to say the Mass, for instance, the chaplain attached
to a certain church, or altar, or who says Mass at a speci-
fied hour (primas sarins) or, more generally, the priests
■"■
ia Blacbstonc-Coolej. Com., Vol. plurits (Richter, Trid., p. 137, n.
II. S'3. 55); cfr. can. 1544 t
is S. C. C, Jan. St. 1710 <■:
jle
( * ^ .. -i\,*> Original fro ni
UNIVERSITY OF WISCONSIN
CANON 826 185
a
assigned to a certain parish. If no special priest is men-
tioned, the choice is left to the heirs to determine.1*
Finally, it may happen that a testator leaves, say, $1000
for Masses to be said each year forever without further
determination. In that case the executor has to see to
it that the will is put into effect.1* The final obligation
rests on the heirs, who may relieve themselves of further
responsibility by handing over the legacy to the Ordinary.
In the last hypothesis no foundation would be created
because no obligation is attached to any particular church
or altar, nor are the celebration and application of the
Masses imposed on a determined priest. Hence such
Masses are really manual stipends. $1000, at 5% inter-
est, would produce $50 per annum and entitle the testator
to fifty Masses.
Quasi-manual Masses arise from founded Masses
which are to be said either in a particular church or by
a specially designated priest. If the testator has left it
to the Ordinary to make a change concerning the place
or priest, the latter may de iure order such a change and
assign another altar or church and give the stipend to
another priest. If the charter contains no clause as to
the free choice of place or person, the Holy See (S. Cong.
Cone.) must be asked. For the last will of the faithful
is to be respected, especially with regard to Masses.10
A tnanual stipend may, therefore, be called an offhand
stipend involving no obligation other than the application
of the Mass. A quasi-manual stipend, on the other hand,
D
14 S. C. C, Jan. is, 1639 and which the sum is left, but leave it
passim (Richtcr, /. c, n. 59 f.). Id the executor to specify and ap-
10 Here it may not be amiss to ply it. But the heirs are under
draw attention to certain civil laws. grievous obligation of handing over
Where these are not favorable to the money.
inch legacies, it would be wise not l* Urban VIII, " Cum alias'' ad
to mention the specific purpose for dub. 1 (Richter, Trio*., p. 146)*
oogle
k .,1,., Original from
UNIVERSITY OF WISCONSIN
■
186 ECCLESIASTICAL THINGS
is a modified foundation, the obligation of which is
limited as to place or person. A foundation proper,
finally, is a legacy attached either to a certain place
(altar, chapel, church) or to a certain priest by the will of
the testator.
no trafficking in masses allowed
Can. 827
A stipe Missarum quaelibet etiam species negotia-
tionis vel mercaturae omnino arceatur.
Every species of bartering or trafficking tvith Mass
stipends must be strictly avoided.
The terms negotiatio and mercatura are nearly synony-
mous, except that the former, which may be translated by
bartering or exchange of wares, has perhaps a more
general meaning. Trafficking is a common term for buy-
ing and selling for the sake of gain. Even negotiato
includes the notion of profit, at least in common parlance.
To understand this canon fully, it must be viewed in the
light of the following decisions.
1. Collecting of Mass stipends by booksellers and other
merchants through public advertisements and promises of
premiums is strictly forbidden, as is also the distribution
of stipends in the form of books or merchandise, whether
to the full amount of the stipends or retaining a profit,
no matter whether this profit is given to pious institu-
tions or kept by the agent, whether others have handed
over these stipends to said merchants or whether they
have collected them themselves. Stress is to be laid on
-
the act of collecting and the number of Masses.17
■I
2. It is also forbidden to diminish Mass stipends; thus
ITS. C. C.( July 35, 1874. n. 1-5 {Coll. P. F„ n, 1423).
*Ie
f - J , Original fro rn
UNIVERSITY OF WISCONSIN
CANON 828 187
from Masses to be said in a celebrated sanctuary nothing
may be deducted for the adornment or decoration of the
altars, etc.18
3. According to a decision of the S. C. C. it would not
be trafficking if good books or magazines were given in
place of stipends, or if other merchandise were given
for the same by ecclesiastics.19 However, a decree
(" Vigilanti") of May 25, 1893, prohibits accepting books
from booksellers in lieu of Mass stipends. It is not
without reason that Cardinal Gasparri in his notes omits
all reference to this mitigated interpretation. In general,
therefore, whatever savors of trade or bartering is for-
bidden, no matter what some theologians say who wrote
before the Code. On the other hand, we hardly believe
that a priest would be forbidden to give a book to a
brother priest with the request : " Please say a Mass ac-
cording to my intention." For there is no trafficking in-
volved in such an agreement. The purpose of the legis-
lator is to exclude trading in Masses.
Can. 828
Tot celebrandae et applicandae sunt Missae, quot
stipendia etiam exigua data et accepta fuerint.
X
HI
The number of Masses to be said and applied must
correspond with the number of stipends given and ac-
cepted, even though these be small.
This rule, given by Urban VIII and re-iterated by In-
nocent XII, is to be understood as follows : 20 If a priest
receives, for instance, ten Mass intentions, but only five
dollars, he is bound to say ten Masses, provided, of
-
18 S. C. C. M«y as. 1803 {Coll.. 25. 1874 (.Coll. /*. F., n. 1443. U»J>.
n. 1833); thia is only allowed by a 20 Urban VIII, "Cum alias"; Id-
■pecial papal indulu noccnl XII, "Nuftr" (Ricfatcr,
19 S. C. C, April Mi 1875; Julr Trid,, p. 145 «.).
jle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
1 88 ECCLESIASTICAL THINGS
course, as our text says, he has accepted the stipends.
But it could not be said that he accepted the obligation
if he received the five dollars without being aware of
the smallness of the amount, or if the donor had deceived
him or given him a counterfeit note. There is a con-
tract between the one who offers the stipend and the priest
who says the Mass.21 This contract is of the nature of
a tacit do ut facias. Now any contract that is not know-
ingly and willingly agreed to by both parties must be re-
garded as invalid, and a priest is not supposed to ac-
quiesce in fraud or deceit. But if he accepts the five
dollars with the promise that he will say ten Masses, he
must abide by his promise, even though the amount is not
the customary or synodal one. This rule affects all
priests, regular as well as secular, individuals as well as
communities, congregations and orders of religious.22
Greek priests must offer the Holy Sacrifice according to
the intention of those who make voluntary offerings (ob-
lations), and if several persons make an offering, the
priest must inform them of the preceding oblations, and,
unless they all declare themselves satisfied with one Mass,
he must offer as many Masses as there are oblations.
Nor is it sufficient to put particles on the table according
to the number of the offerers, or to make a simple com-
memoration for the different donors,23
SI S. O . Sept. 24. 1665, prop. turamento firmata, dandi stipendium,
10 dam. (Dcnzingcr, n. 981): quod pro nulla alio offeram."
" Non est contra iusttliam, pro plu- 22 Urban VIII, "Cum alias," § 5.
ribus Sacrificiis sttpeniiium accipere, *» Benedict XIV, " Demon datam,"
et Sacrificium wnuni offerre. AV- Dec. 24, 1743, 9 10; S. C. P. F.,
que etiam ,■.>.: contra jidelxtatem, April ij 1807, n. XVI (Coll., n.
etiamti promittam promujione, etiam 69a),
* I Inr*al*> Original from
,00cVC UNIVERSITY OF WISCONSIN
CANON 829 189
Can. 829
obligation never ceases
Licet sine culpa illius qui onere celebrandi gravatur,
Missarum elccmosynac iam perceptae perierint, obli-
gatio non cessat.
Even though the alms given for Masses have perished
without the fault of the one who is obliged to say the
Masses, the obligation does not cease.
This is merely a consequence of what was said in the
preceding canon concerning the species of contract, which
obliges as soon as it is entered upon. Hence if a priest
has received money for some Masses and loses it, the
loss is his (res peril domino) and he remains bound to
say the Masses.
A reasonable doubt may arise about founded Masses,
though there is a Roman decision which rather favors the
existence of the obligation. Regulars were entrusted for-
ever with a church to which the obligation of saying one
Mass daily for the founders and benefactors was attached.
EL
Though it was not evident that this burden had been at-
tached at the time of the foundation and there was no*
trace of annual revenues, the S. Congregation decided that
the religious were bound to apply the Mass.21 This is in
keeping with can. 825, 4°, and therefore our present
text probably also applies to foundations, unless the Holy
See either modifies or abolishes the obligation.
01
2« S. C. C, Jan. 38, 1708; Dec X5. »73* (Richler, Trid., p. IJ7, n.
■
9
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
Q
"■
"\
190 ECCLESIASTICAL THINGS
number of masses not determined
Can. 830
Si quis pecuniae summam obtulerit pro Missanun
applications non indicans earundem numerum, hie
supputetur secundum eleemosynam loci in quo oblator
morabatur, nisi aliam fuisse eius intentioncm legitime
praesumi debeat.
If one offers a sum of money for the application of
Masses without determining the number, this is to be
reckoned according to the amount usually given in the
place where the donor lived, unless it may be lawfully
presumed that he had a different intention.
This canon must be compared with canons 828 and 831.
The former makes the number of Masses to be applied de-
pendent upon the contract entered between the donor and
the priest, whilst can. 831 rules that the Ordinary should
determine what constitutes a stipend. Neither of these
two canons applies to the hypothesis set up in can. 830.
In concreto, this hypothesis is that a man hands a priest
ten dollars for stipends without determining the number
of Masses he wishes to have said. If he would say to
the priest: " Please say a Mass," the remainder of the
sum (nine dollars) might justly be taken as a personal
gift, especially if the donor is known as a generous man,
or if it would be around Christmas time or the priest's
birthday, etc. But if the donor would say : " Please say
Masses for my intention," then ten Masses would have to
be said in our country, where the usual stipend is one
dollar for a Mass.25
2* Innocent XII, " Super," I i$ ; S. C. C. Nov. 15, 1698; Benedict
XIV, Iftfttf, 5C n. X.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 831 19 1
O
mass stipends to be fixed by the ordinary
Can. 831
§ i. Ordinarii loci est manualem Missarum stipem
in sua dioeccsi dennire per decretum, quantum fieri
potest, in dioecesana Synodo latum ; nee sacerdoti licet
ea maiorem exigere.
§ 2. Ubi desit Ordinarii decretum, servetur consue-
tude dioecesis.
§ 3. Etiam religiosi, licet cxempti. circa stipem ma-
nualem stare debent decrcto Ordinarii loci aut dioecesis
consuetudini.
§ 1. It belongs to the Ordinary of the diocese to fix,
if possible by a synodal decree, the amount of a manual
Mass stipend, and priests are not allowed to demand
more.
§ 2. Where there is no episcopal decree on the subject,
the diocesan custom must be observed.
§ 3. Religious, also, even though exempt, must abide
by the episcopal decree or diocesan custom.
This text is so plain that it needs no explanation. We
will therefore only add that the Ordinary may enact,
and enforce his enactment with ecclesiastical censures,
that the secular as well as regular clergy shall not accept
less than what either the synodal decree or diocesan cus-
tom prescribes ; but he may not forbid priests to accept
more than is customary, if the faithful voluntarily offer
more.98 The Ordinary is not entitled to fix the stipend
for founded Masses for exempt religious.21
2fl S. C C, Jan. 16, 1649: Bene- ors regular, fixed the lum at 60
diet XIV, Ins tit, s«, n. XT. icudi ($60). This turn, according
S7S. C. C.t Jan 15, i6g8; Bene- to the present value of money,
diet XIV, De Sacrif. Missae, 1. Ill, would be from $240 to S,ioc.
23, 9, in agreement with the supcri-
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
192 ECCLESIASTICAL THINGS
Can. 832
Sacerdoti fas est oblatam ultro maiorcm sttpem pro
Missac applicatione acciperc; ct, nisi loci Ordinarius
prohibuerit, etiam minorem.
A priest is allowed to accept a stipend which is larger
than the one determined by diocesan statute or by cus-
tom; and, unless the Ordinary has forbidden, he may also
accept a lesser one. The prohibition to receive a stipend
below the customary sum must be made antecedently, and
it would not be just to punish a priest for doing so if no
prohibition had been promulgated.
additional stipulations
Can. 833
■
Praesumitur oblatorem pctiise solam Missae appli-
cationem; si tamen oblator expresse aliquas circum-
stantias in Missae celcbratione servandas dctcrmina-
verit, sacerdos, eleemosynam acceptans, eius voluntati
stare debet.
It is presumed that the one who offers a stipend asks
only to have the Mass applied; but if he expressly de-
termines certain circumstances to be observed in the cele-
bration of the Mass, his wishes must be complied with.
This follows from the nature of the stipend as a con-
a
tract. Any one who makes a contract is allowed to add
in
stipulations (modi contractus) , provided, of course, they
arc not opposed to the substance of the contract or for-
bidden by law. The " circumstances *' of which our canon
speaks, may refer to time, da)' or feast, kind of Mass and
altar, etc. Of the time within which Masses are to be
said the next canon (834) treats. We will only observe
ogle
Original from
UNIVERSITY OF WISCONSIN
CANON 833 193
that, if the petitioner asks to have the Mass said on a
certain day, and the priest agrees to do so, this stipula-
tion must be complied with.2*
(a) Similarly, if a certain day or feast is stipulated, it
must be strictly observed, or the stipend returned, unless
the priest knows the mind of the donor.
(b) If the donor asks for a certain Mass, for instance,
a votive Mass in honor of the Blessed Virgin, the priest
should say that Mass, though not bound under grievous
obligation to do so. If the priest is asked to say a Mass
for the poor souls, he should say a " Black n Mass.
The question has been asked whether a priest would
satisfy the obligation arising from a stipend for a Mass
for the dead, if he said the Mass of the day, though he
could and should say a " Black " Mass. The S. Congre-
gation of Rites answered that if the rubrics permitted
a votive Mass or Missa de requiem, the priest would not
fulfill his obligation by saying the Mass of the day, be-
cause the will of the testator or giver, if reasonable, must
be respected.20 In a mitigated form the same answer was
returned twenty years ago by the same Congregation.
The question was: ao " Does a priest who is given a sti-
pend for a Mass to be said for one or several dead, or in
honor of a holy mystery, or of the Blessed Virgin, or of
a Saint, fulfill his obligation if he says and applies the
Mass of the day, because the rubrics do not permit him to
say the Mass especially asked for? The answer was;
a
28 Theologians (cfr. Prumraer, /. appeal, it may reasonably be lup-
C, III, n. 266) maintain that the posed that the donors arc satisfied
obligation is a grave one if the to have the Masses said as soon as
donor insists on a special day, but possible, even though they should
only a lefis if he asks for a certain prefer a certain day.
day without insisting on it or for 28 S. Rit. C, March j, 1761, ad
no special reason. Besides, if many 7 {Dec. Auth., u. 2461).
Masses are offered, say to a mon- ao S. Rit C, June 13, i8go, ad
astery, without a specially urgent IV (Dec. Auth., n. 4031).
.'Ie
, ,1,., Original from
UNIVERSITY OF WISCONSIN
194 ECCLESIASTICAL THINGS
Yes, but with the addition : " It would be more advisable
to comply, as far as possible, with the intention of the
giver by saying the ' Black ' or votive Mass." From this
decision we may gather that the priest should comply
with the manifest and expressed intention of the giver
but is not under a strict obligation to do so, unless a di-
rect demand was made as to the kind of Mass to be said,
especially if it be a foundation. In our country, we be-
lieve, most people arc satisfied if the priest says a K Black "
Mass, even though the intention was directed for the ben-
efit of the living, and we do not quite understand why
some theologians S1 regard it as incongruous to say a
" Black " Mass for the living. Does not the act of char-
ity done to the poor souls enhance, as it were, the fruits
of the Mass thus applied ? Of course, if a Mass in honor
of a special Saint, e. g., St. Anthony, were asked for,
based on the belief that this Saint is a particularly power-
ful intercessor with God, it would not be prudent to say
a " Black " Mass.
(c) If a special altar is asked for by the donor, this
wish should be conscientiously complied with, in as far
at least as canon 836 does not permit a deviation from
the rule.
Here the question of the privileged altar, which will be
more fully discussed under cans. 916-918, may be briefly
touched upon as far as it is connected with our present
subject. Generally speaking, privileged altars are in-
tended for the dead, and therefore n Black " Masses
should, as a rule, be offered thereat. The rubrics for-
bid a Afissa de Requiem on duplex days, unless it be a
cantata in die obitus, etc. Yet, says the S. Congregation,
if the Mass is de facto applied for the intention of the
giver or founder, the privilege is not lost, 1. e,, the indul-
II Thus Primmer, /. C, HI, n. 268.
Q
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
CANON 833 195
a
a
gence attached to such an altar is gained also by a Missa
de fcsto or die occurrcnti prescribed according to the ru-
brics. Neither docs it matter whether the altar is thus
privileged in perpctutitn, or ad tempus, or pro certis die-
bus, if the Mass is said on the privileged days, and the
Mass has to be said in the color of the day according to
the rubrics." Hence, to gain the indulgence attached to
a privileged altar it is not necessary to say a "Rlack"
or Ferial or Vigil Mass with the oration for the deceased,
although this may be laudably done.83
(d) The donor may also stipulate that the Mass be
said in a certain church or chapel. In that case the priest
must say the Mass in the church or chapel appointed.
A chaplain who is appointed to a certain chapel, must
say Mass there, and if the founder has not expressly de-
termined otherwise, he must also apply the Mass for the
founder." The rector of a church in which a Mass must
be said by the last will of a testator, may not permit a
priest to whom he has given the stipend to say the Mass
in another church, or to subtract anything from the or-
iginal alms.15 If a Mass to be said in a certain church
must be transferred to another church, some compensa-
tion for wine, altar bread, candles, and the use of vest-
ments may be demanded." From this it logically fol-
lows that a priest saying Mass in a strange church would
not act against ecclesiastical law or natural courtesy if
a
83 S. Rit. C, Aug. 5, 166*; Dec. stipend to be given to another priest
I, 1666; Aug. 13, 1669 {Dtc. Auth., for saying Mass in that chapel
nn. 1238, 1343, 139a). (which would be agaiast n. XV of
99 S. O. (sect. Indulg.), Feb. 30, the " Ul dtbito," May 11, 1904).
i9U tA. Ap. S., V, iu); Bene- " S. C. G, Dec 19. 1004. ad a
diet XIV, lnstit,, 56, n. XV. (Luwr Q.S., 1905. Vol. 58. P- 674).
14 S. C. CM Aua. 18, 1668: Jan. SO S. C. C. Jan. is. 1639. #1
II, 1710 (Richter, Trid., p. 136 f. filurirs (Richter, Trid., p. ij7, n.
""■ 49. 55): r>cc 19, 1904, ad 3; 6j; Benedict XIV, In t tit., 56, a.
especially is the chaplain not al- XIII).
lowed to determine ad libitum the
Q
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
io<5 ECCLESIASTICAL THINGS
St
he would leave some compensation at least for the jan-
itor and the altar boys.
Here we may add something concerning the thirty so-
called Gregorian Masses, which, according to tradition,
originated with St. Gregory the Great (590-604), who
celebrated Mass for thirty consecutive days to redeem the
soul of a monk who had died with some unlawfully re-
tained property. The custom is widespread to-day, but
some have exaggerated notions as to the effects of these
Masses. We are concerned only with the law regarding
them, which has lately been fixed as follows :
(a) The thirty Gregorian Masses must be celebrated
on thirty consecutive days, without interruption;
(b) A priest cannot say, for instance, three Masses
on Christmas Day as Gregorian Masses, and then on the
28th Dec. resume the celebration.
■
(c) Nor can he give the thirty Masses to different
priests that they may be said in less than thirty days.
(d) It is not required that the same priest say all
thirty Masses, or that he say a " Black " Mass on the
days when the rubrics permit."
Since the Gregorian Masses are a burden and a risk,
it would not be against ecclesiastical law if the Or-
dinaries a8 would fix an " extra " tax for them. For
religious the Ordinary in that case is the superior major,
who, therefore, is entitled to make or authorize an addi-
a
tional charge for Gregorian Masses.
it S. O. (Sect. Indulg.). Dec. 12, interfere with the thirty consteutivt
191a (A. Ap. S., V, 32 {.); the days-
three list day« of Holy Week do not 3* Thit is done in some Eastern
dioceiea, where the charge is $45.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 834 197
TIME OF FULFILLING THE OBLIGATION
n
a
Can. 834
§ i. Missac pro quibus celebrandis tcmpus ab obla-
tore exprcssc praescriptum est, co omnino tempore
sunt celebrandae.
§ 2. Si oblator nullum tempus pro Missarum manu-
alium celebratione expresse praescripserit:
1. Missae pro urgenti causa oblatae quamprimum
tempcre utili sunt celebrandae ;
2.0 In aliis casibus Missae sunt celebrandae intra
modicum tempus pro maiore vel minore Missarum
numero.
§ 3- Quod si oblator arbitrio sacerdotis tempus cele-
brationis expresse reliquerit, sacerdos poterit tempore
quo sibi magis placuerit, eas celebrare, firmo prae-
scripto can. 835.
§ 1. If a term has been expressly fixed by the donor,
the Masses must be said at the time required.
This obligation, as already observed, follows from the
stipulation attached to the contract."
§ 2. If no time has been expressly fixed for manual
stipends, the following rules must be followed :
i°. Urgent Masses must be said as soon as possible
within an equitable period. Thus if a Mass is ordered
for a successful operation or child-birth, it is supposed
to be said before or on the day of the event. However,
the legislator says "tempus utile" (see can. 35), which
here means, if the priest is not occupied with other inten-
tions or obligations. Should he take sick or be lawfully
prevented on the day on which he is obliged to say the
a«S. C. G, June 33, Sept. 1. 1743, ad 9.
a
ii__ i :_i_4. tt
"-.
jle
% ,|,, Original from
UNIVERSITY OF WISCONSIN
198 ECCLESIASTICAL THINGS
St
stipulated Mass, he would have to ask another priest to
say the Mass in his stead,40 provided he could find one
who would be willing and able; if not, he may keep the
stipend and say the Mass as soon as possible.
2°. If the Masses are not urgent, they must be said
within a short time (intra modicum tempus), proportion-
ate to the greater or smaller number of Masses. By
modicum tempus was always understood one month from
the date of the obligation in case of one Mass.41 A scale
was proposed to the S. Congregation 42 for a greater num-
ber, as follows:
■
For 10
Masses,
1 month
" 20
u
2 months
" 40
a
3 "
" 60
u
4 "
" 80
«
5 "
41 100
•1
6 "
The answer was: "It is left to the discretion of the
priest, with due regard to the decree ' Ut debita/ of May
11, 1904, and to the rules of approved authors." But it
must be noted that the scale as proposed applied to sti-
pends received from one person, not several. Hence, if
of 100 persons each would offer one Mass stipend, the six
months' term would not apply, unless the intention of
the donors to have them said within that time were evi-
dent. Therefore, if the priest tells the person who of-
fers a stipend that he cannot say the Mass within one
month, or three months, and the person thus advised says:
" All right, Father," he may accept the stipend. An im-
«0S. C G, Sept 18, 1683; June debita," May 11, 1904 {Anal. EccL,
4. 1689 (Richtcr, Trid., p. 138, n. t. !«, xos).
65 f). 42 S. C. C, Feb. 27, 1905 {Anal.
41 S. C. C, July 17, 1755: Bene- Eccl, t ij, 124)-
aict XIV. Instit., S6. n. XIV; " Vl
gle
, ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
■
CANON 835 199
plicit stipulation to the same effect may be assumed if the
faithful know that many Masses are said in a monastery
or religious community and nevertheless send their sti-
pends there. It may, we say, be presumed that they are
satisfied to have the Masses said when it suits the com-
munity. If they are not " urgent n as to the time, tempus
utile may be taken.
§ 3 renders this explanation clearer. If the donor ex-
pressly leaves the time for saying the Mass to the dis-
cretion of the priest, the latter may say it when most con-
venient for him, with due regard to can. 835.
Can. 835
Nemini licet tot Missarum onera per se celebranda-
rum recipere quibus intra annum satisfacere nequeat
No one is allowed to receive more Masses to be cele-
brated by himself, than he can say within a year.
The phrase " per se celebrandarum " means that the
priest himself, and not another, is supposed to say the
Masses. Otherwise a priest may accept as many Masses
as he wishes and dispose of them according to the rules
laid down in can. 839 ff.
The phrase " intra annum " (within a year) also calls
for an explanation. The starting point for manual
Masses is the date on which the first Mass is received
and accepted. Say this is the first of March, 1919, and
suppose the donor (according to can. 834, § 3) has left
it entirely to the discretion of the priest when to say the
Mass. If he says it any time before March 1, 1920, he
will have complied with the law. He may, before he has
said the Mass accepted on March I, 1919, accept others,
and say them first. But if the donor has set no time for
the Mass given on March i, 1919, nor expressly left it to
>Ie
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
200 ECCLESIASTICAL THINGS
the discretion of the priest when to say it, the priest must
say the Mass within a month, although he may receive
other Masses before April r, 1919, before having said the
Mass accepted on March 1, 1919. For these Masses re-
ceived in the meantime, say on the feast of St. Joseph,
1019, the same rules hold good.48 It is well to instruct
the faithful on this point and also to ask the giver in
each instance whether he is willing to leave the time for
saying the Mass to the priest.
posters in chukches
Can. 836
In ecclesiis in quibus ob fidelium peculiarem devo-
tionem Missarum eleemosynae ita affluunt, ut omnes
Missae, celebrari ibidem debito tempore ne quean t,
moneantur fideles, per tabellam in loco patent! et obvio
positam, Missas oblatas celebratum iri vel ibidem, cum
commode poterit, vel alibi.
The churches here in question arc mainly famous sanc-
tuaries or shrines. When it proves impossible to say
all Masses in such sanctuaries for which stipends are of-
fered, in order that the expectations of the faithful may
not be disappointed, they should be advised that the
Masses will be said either in the church itself, if con-
venient, or else in some other church.44 A public notice
to this effect should be posted in a conspicuous and easily
accessible place. If stipends are offered nevertheless,
the ministers cannot be accused of " pious fraud."
Evidently this rule applies only to churches where the
faithful make their offerings personally, not to com-
munities to which stipends are sent.
« Innocent XII, " Nuftr," | 15 44 S. C C, March 8, 1659: Bene.
a<t»r (Richter, Trid., p. 146). diet XIV, Instiu. 56, n. XIV.
■■■
oogle
v ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 837 201
masses sent away
Can. 837
Qui Missas per alios celebrandas habet, eas quam-
primum distribuat, fir mo praescripto can. 841 ; sed
tempus legitimum pro earundcm celebratione incipit a
die quo saccrdos cclebraturus easdcm receperit, nisi
aliud constet.
Whoever has Masses to be said by others, should dis-
tribute them as soon as possible, with due regard to can.
841. But the lawful time for saying them commences on
the day on which the priest who is to say them has re-
ceived them, unless the contrary is evident.
Here the intentionarius of religious communities and of
priests overloaded with Mass intentions is especially
aimed at. The second clause may be illustrated thus:
A religious in Rome receives from his home monastery
thirty Masses. Sent on Feb. i, they arrive on March 1.
Ordinarily the religious would have time to say them
from March 1 to the middle of May. If, however, the
letter contains a clause urging him to say the Masses
as soon as possible, he would have to hurry up J but if the
letter says: "at your convenience," he could postpone
saying the thirty Masses and say them when he had no
other intentions.45 A decision of the S. Congregation
advises that where there is a large number of intentions,
the Masses should be distributed among several priests,
so that they may be said more promptly."
D
« " Vt debiia," n. 4. *0 S. C. C, Feb. 27, 1905, ad 4.
i ( ' U1L, Original from
^ lOOgK. UNIVERSITY OF WISCONSI
202 ECCLESIASTICAL THINGS
Can. 838
Qui habent Missarum numerum de quibus sibi liceat
libere disponcre, possunt eas tribucre sacerdotibus sibi
acceptis, dummodo probe sibi constet eos omni excep-
tion maiores vel testimonio proprii Ordinarii com-
mendatos.
This canon is a corollary to the preceding one, for it
describes the qualities of the priests to whom super-
fluous Masses, of which one may freely dispose, may be
entrusted. Any priests may be freely chosen, provided
they are absolutely reliable or recommended by the local
Ordinary. It is not necessary, therefore, that they be
known personally 4T (facie ad facient) to those who dis-
tribute the Masses.
duration of the obligation of a mass stipend
Can. 839
Qui Missas a fidelibus receptas aut quoquo modo
suae fidci commissas aliis celebrandas tradiderint, ob-
ligatione tenentur usque dum acceptatae ab eisdem
obligationis et recepti stipendii testimonium obtinue-
rint.
2
Whoever gives Masses received from the faithful or
otherwise entrusted to his care to others is personally re-
sponsible for them until he is informed that the obligation
has been accepted and the stipend received.
It is evident that the priests to whom Masses are sent
according to this canon, must have the same qualities as
those described in can. 838. The obligation for Masses
<
47 " (Jl debita," n. 5, says: even the wording of " Vt debita"
" pttsonaliter sibi notis"; but this did not absolutely require personal
ti omitted in our text. However, knowledge.
.'Ie
■*""* ^ -. vis* Originalfrorn
UNIVERSITY OF WISCONSIN
CANON 840 203
given to others does not cease until the other has accepted
the obligation and received the stipend. The reason is
evidently based upon the nature of the contract. For
readiness to accept the obligation is only half efficacious,
and does not become fully so until the object is delivered,
which is done by actual transmission and reception of
the price. It is further necessary to have reliable in-
formation with regard to both these essential conditions.
This information may be given orally or in writing, but
it must produce moral certainty. No Masses whatso-
ever are excepted from this law, not even those sent to
the Ordinary or the Holy See. Therefore the old ruling
of " Ut deirita," 1904, n. 6, must be modified to the effect
that the obligation remains until information is given
either by the Ordinary or the Holy See if Masses are sent
to either. Also the risk of losing the money must be
borne by the sender. When a check or draft is sent,
there is no loss to be feared except of time, and the can-
celled check upon its return will serve as a receipt.
Whether this would suffice for making sure of the accept-
ance of the obligation depends on the business capacity
of the recipient and the custom of the country. In our
country cashed and returned checks are acknowledged as
legal receipts.
Can. 840
• i
a
§ i. Qui Missarum stipes manuales ad alios trans-
mittit, debet acceptas intcgre transmitters, nisi aut
oblator expresse permittat aliquid rctinere, aut certo
constet excessum supra taxam dioecesanam datum
fuisse intuitu personae.
§ 2. In Missis ad instar manualium, nisi obstct mens
fundatoris, legitime retinetur excessus et satis est re-
mittere solam elecmosynam manualem dioecesis in qua
o
* ( Inr»ClI*> Original from
,00cVC UNIVERSITY OF WISCONSIN
'.•-.
204 ECCLESIASTICAL THINGS
Missa celebratur, si pinguis eleemosyna locum pro
parte teneat dotis beneficii aut causae piae.
§ i. He who sends manual stipends to others, must
transmit them as he has received them, t. e.f in full, un-
less the donor has expressly permitted him to retain part
of the stipend, or unless it is evident that whatever ex-
ceeds the synodal or customary stipend was intended for
the person of him to whom the stipend was given.
There are many strict prohibitions to this effect from
the time of Urban VIII to our own, intended to keep
" damnable lucre " out of the Church.48 The decree " Ut
debita" of May II, 1904, abolished all previous privileges
or indults and demanded " a new and special concession
of the Apostolic See," which cannot be communicated to J
others, for the superiors of famous sanctuaries who wish
to retain a small percentage of the stipends for the up-
keep and adornment of the church. If a Mass stipend'
for a certain place or sanctuary were $2, therefore, the11
priest who said the Mass must be given the two dollars
in full.40 However, the S. Cong, made an exception in
favor of sanctuaries by adding: " nisi de consensu obla-'1
torum." that is, if the donors expressly (no praesumpta
or tacita liccntia) state that a small sum may be kept out '
of the usual stipend for the sustenance of the church, if '
would be allowed by law.50
Another reason for retaining a part of a Mass stipend
would be if the amount exceeded the usual tax and wfls
given intuitu personae, for personal reasons. In Holland l
the faithful often give their pastors stipends which are '
4B "Alios," June 21, 1625, fi 6: law also obliges the Oriental priests;
" damnabile lucrum"; S. 0., Sept S. C. P. F., Jan. 20, 1893 {Colt., n; *
24. 1665. prop. dam. o (DenzinKcr. 1823).
n. 080). 80S. C. C, " Vigilanti," May as, >
■inS. C. C, Dec. 19, 1904. ■<* i '893 {Colt. F, F., n. 183a). ::fJ*
Mfiai. Ecci. t 13. p. 70). This 3 vrjuirn
gle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 840 305
St
almost equal to a salary. They do this partly to insure
their support, and partly out of gratitude and affection.
The pastors, when absent or sick, or for other reasons,
have their chaplains or curates (coadiutores) say the
Masses for the usual or synodal stipend and keep the sur-
plus for themselves. The matter was brought to Rome,
and the S. Poenitentiaria, in the name of Benedict XIV,
decided that the practice was permissible.61 Now a
priest may receive a stipend of $5 from a friend, or as a
present, and if he is certain that the pingue stipendium
was given for merely personal motives, he may keep the
$4 and give $1 to another priest to say the Mass, unless,
of course, the donor had insisted that he himself say the
Mass.
In another case solved by the S. Poenitentiaria w pas-
tors were accustomed to exchange Mass intentions with
their assistants or curates, who sang the Misso cantata
in the pastor's place, but received no stipend. The pas-
tor on his part did not say the Mass according to the
intention of the assistant, but gave a manual stipend to a
third priest, who said the Mass according to the intention
of the assistant. The S. Congr. decided that such an ex-
change of intentions was allowed, provided the third priest
was aware of the higher stipend and freely and of his
own accord renounced it. The reason given was that
there is no detestable trading in that case.
;■. § 2. The excess or surplus of quasi-manual stipends
may be lawfully retained if the pingue stipendium takes
the place of a partial endowment of an ecclesiastical pre-
61 S. Poenit., April 6, 174a (Coll. 02 S. Pocnit, Aug. s», i8?6 {Coll.
P. P., n. 336); Benedict XIV, P. P., n. 789). This decision runt
" Quanta euro," June 30. 1741, en- counter lo the doctrine of St. AI-
•ctcd severe penalties against so- phonsus.
called trading and approved the de-
cision of S. Pocnit. h
ogle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
206 ECCLESIASTICAL THINGS
bend or pious institution, unless the will of the founder
reads otherwise. In that case, then, if the beneficiary has
the Mass said by another priest, the former is bound only
to hand the customary or diocesan stipend to his sub-
stitute.
How can this ruling be made to square with § I of the
same canon ? The answer is obvious. The surplus sti-
pend is given as a sort of contribution to the necessary
support of the priest, who is employed for a certain bene-
fice or chapel, and since the stipend itself is of the same
nature, there is no alienation involved either of the foun-
dation or of the stipend. Besides, there is no trading,
because the priest receives the stipend to which he is en-
titled according to the diocesan custom. In Bavaria and
elsewhere, where the income of pastors is fixed by the
civil government by agreement with the ecclesiastical au-
thority, the salary includes the stipends accruing from
foundation Masses, and from requiem and marriage
Masses, for which a larger stipend is paid than for ordi-
nary Masses.
Since, however, the pastors are sometimes law-
fully prevented from saying these Masses personally,
they give them to other priests, who say them for the
usual stipend, which is less than the one received by
the pastors, who retain a portion of the original sti-
pend as part of their legitimate income. Rome has de-
clared this practice lawful, because the money thus kept
is really a part of the salary.53 The surplus may also
be retained in favor of the church to which a priest is
assigned.5* If the founder, however, has set up a clause
forbidding such retention, it would be unlawful, as the
»3 S. C. C, Moncc&M Feb. *8, 84 S. C. C, Jan. ai, 189B {Anml.
March j8. Aug. aa, 1874 (-*• S. S., Eccl., t. 15. 65)-
Vol. 8, 65 ff.).
ogle
Original from
UNIVERSITY OF WISCONSIN
CANON 841 207
will of the founder must be religiously respected.55 This
rule, we believe, may also be applied to our country,
where quasi-manual stipends form part of the salary of
priests, provided no contrary stipulation exists in the will
of the founder.
u
Can. 841
■
§ 1. Omnes et singuli administratores causarum
piarum aut quoquo modo ad Missarum onera implenda
obligati, sive ecclesiastici sive laid, sub exitum cuius-
libet anni, Missarum onera quibus nondum fuerit satis-
factum, suis Ordinariis tradant secundum modum ab
his definiendum.
§ a. Hoc autem tempus ita est accipiendum ut in
Missis ad instar manualium obligatio eas deponendi
decurrat a fine illius anni intra quern onera impleri de-
buissent; in manualibus vero, post annum a die sus-
cepti oneris, salva diversa ofFerentium voluntate.
§ 1. Administrators of pious institutions, and all,
whether clergymen or laymen, who are in any way bound
to have Mass obligations fulfilled, must at the end of each
year send the Masses not yet said to their Ordinaries in
some manner to be determined by the latter.
§ 2. The time for complying with this obligation runs,
for quasi-manual stipends, from the end of the year dur-
ing which the Masses should have been said, and for man-
ual stipends from the day on which the obligation was
accepted, with due regard to the intention of the donor.
Causae piae are pious institutions under the direction
of the local Ordinary, which generally have a number of
Masses either imposed by the will of founders or offered
by the faithful. The administrator (or syndicus, as he
-
<
BBS. C- C, Feb. at. 168R (Rich- bila," May it. 1904. n. 15: Feb. aj.
ter, Trid., p. 138, n. 69); " Ut de- igr>? {And. c\t., p. 64).
ogle
£ * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
208 ECCLESIASTICAL THINGS
was formerly called) of each house is responsible for
the Mass obligations being duly fulfilled. Pia causa in
this context certainly includes the administration of any
ecclesiastical institute with the sole exception of male re-
ligious, as can. 842 clearly implies. Hence it also com-
prehends religious houses of women who are not under
the jurisdiction of a prelate regular. Besides piae causae
here comprises also parishes, chaplaincies, rectories, in
fact, any one, clergyman or layman, who has to see to the
fulfillment of such obligations; also guardians or exec-
utors of last wills and the heirs upon whom devolves the
duty of complying with pious obligations.
The Ordinary to whom the Masses not yet said must
be sent, is the one in whose diocese the pia causa is lo-
cated.
§ 2 defines the date from which the obligation com-
mences. For quasi'ftianual Masses, which are attached
either to a definite church or to a specified priest, the time
runs from the end of the year within which the Masses
were to be said. Suppose, e. g.f a quasi-manual Mass
was to be said on St. Michael's Day, 1918. If this Mass
was not said that year, it must be handed over to the Or-
dinary before the last day of Dec, 1918, because we now
generally understand the civil year, which commences
Jan. 1. However, if it were taken to mean the ecclesias-
tical year, the end of that year would be the Saturday
before the first Sunday of Advent. If the document
merely says : " So many Masses must be said each year,"
we should take the civil year. But if a date is stated,
from which the obligation commences, the year is reck-
oned from that date.
If there is question of purely manual stipends, the ob-
ligation of sending them to the Ordinary commences ov
the n/st day after a full year has elapsed from the day
D
"■
"\
oogle
, ,|y. Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 842 209
when the obligation was assumed. For instance, a Mass
was ordered on St. Michael's day, Sept. 29, 1918, but not
said on that day, and hence the Mass must be sent to the
Ordinary on Sept. 30, 1919. Only if the will of the donor
has expressly left it to the discretion of the priest to pro-
long the term of one year, may he refrain from sending
it to the Ordinary.
•
duty of ordinabies and religious superiors
Can. 842
Ius et officium advigilandi ut onera Missarum
adimpleantur in ecclesiis saecularium pertinet ad loci
Ordinarium; in religiosorum ecclesiis, ad corum Su-
periores.
The right and duty of watching over the fulfilment of
Mass obligations belong to the Ordinary of the diocese
with regard to the churches of secular priests, and to the
superiors of religious with regard to their churches.
This canon repeats the ruling of Innocent XII, who
gravely enjoined Ordinaries to see to it, at their canonical
visitations and on other occasions, that all the regulations
concerning Mass stipends are carried out without delay,
cavil, or perverse interpretation.00 However this duty
extended only to churches where secular priests are em-
ployed — in ecclesiis saecularium. The legislator, by ex-
tending the exemption formerly belonging to exempt reg-
ulars exclusively, has made the superiors of religious,
whether exempt or not, responsible in this matter. This
had been the law ever since the times of Urban VIII and
Innocent with regard to foundation Masses.67 But the
bishop of St. Polten, in Lower Austria, thought he was
da " Nup er," Dec. aj, 1697. I 34-
67 lb. I 25; S. C. C. Nov. 14, 1690; June 26, 1700.
§le
£ * ^ ^ ,l„ Original fro ni
UNIVERSITY OF WISCONSIN
2io ECCLESIASTICAL THINGS
entitled to inspect the books for manual stipends kept by
the Franciscans of his diocese. The S. Congregation
thought differently and told the bishop that he could not
claim the right of inspecting the records of even manual
Masses at the time of his canonical visitation. This de-
cision touched the books kept in a parish church in charge
of the Franciscans.58
The text says, in ecclesiis religiosorum. What
churches are these ? We believe that since the text draws
no distinction between churches perpetually and tempor-
arily entrusted to religious, the legislator intends to in-
elude both classes. But the religious must be such as de-
fined by the Code, vis., members of a congregation with
the three religious vows. A doubt may arise as to com-
munities of nuns or Sisters who are subject to the dio-
cesan Ordinary but have a religious as chaplain. Who
is the responsible person in that case ? We believe a dis-
tinction will disperse the doubt. For the Masses which
are sent to the religious community of Sisters, as such, and
which cannot be said by the chaplain, the superioress is
responsible, and ultimately the local Ordinary, because
such congregations are subject to him. As to the Masses
given to the chaplain, he must answer for them to his
superior, because by the name of Ordinary, according to
our text, is to be understood the superior of the religious ;
— pro suis respectivis subditls, as one decision declares."
stipend-books
Can. 843
§ 1. Recto res ecclesiarum aliorumque piorum loco-
rum sive saecularium sive religiosorum in quibus
MS. C. EE. et RR.t M»y 1 1, 1904 5» S. C. C, Feb. 27, 1905 {Anal.
(Anal. EccL, t. 12, p. 248). Eccl. t. 15. 1*3).
>ogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
N
CANON 844 211
eleemosynae Missarum recipi solent, peculiarem ha-
beant librum in quo accurate notent Missarum recep-
tarum numerum, intentionem, eleemosynam, celebra-
tioncm.
§ 2. Ordinarii tenentur obligatione singulis saltern
annis huiusmodi libros sive per se sive per alios reco-
gnoscendi.
§ 1. Rectors of churches and other pious institutions,
whether in charge of seculars or religious, where Mass
stipends are wont to be received, shall keep a special book,
in which the stipends are to be entered as to number, in-
tention, amount, and date of celebration.
§ 2. The Ordinaries are obliged to inspect these books
at least once a year, either personally or by a deputy.
The latter section, of course, affects mainly secular in-
stitutions, not exempt or other religious, as otherwise
can. 842 would be meaningless; but the religious super-
iors, too, must inspect the books kept in or for the
community.80
Can. 844
§ 1. Ordinarii quoque locorum et Superiores re-
ligiosi, qui propriis subditis aliisve Missas celebrandas
committunt, quas acceperint Missas cum suis elee-
mosynis cito in librum per ordinem referant curentque
pro viribus ut quamprimum celebrentur.
§ a. Imo omnes sacerdotes sive saeculares sive re-
ligiosi debent accurate adnotare quisque Missarum in-
tentiones receperit, quibusve satisfecerit
■
§ I. Local Ordinaries and religious superiors who give
Masses to their own subjects or to others, shall promptly
enter the Masses they receive, together with the amount
MCfr. S. C. EE. it RR.. May 11, 1904.
oogle
C* ^ -. %\s* Original from
UNIVERSITY OF WISCONSIN
212 ECCLESIASTICAL THINGS
of the stipend, according to the order of time in which
they were received, in a book, and see to it that they are
said as soon as possible.
§ 2. All priests, secular as well as religious, shall keep
an accurate account of the intentions received and the
Masses said by them.
• •
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
■
p
"■
CHAPTER *II
THE HOLY EUCHARIST AS A SACRAMENT
ARTICLE I
the minister of holy communion
Can. 845
§ 1. Minister ordinarius sacrae communionis est
solus sacerdos.
§ 2. Extraordinarius est diaconus, dc Ordinarii loci
vel parochi licentia, gravi de causa concedenda, quae
in casu necessitatis legitime praesumitur.
The ordinary minister of Holy Communion is the
priest alone, the extraordinary minister may also be a
deacon, if the local Ordinary or pastor grants him per-
mission, which should be given for a grave reason, and is
lawfully presumed in case of necessity.
Whereas priests by their ordination receive the power
of consecrating and distributing the Holy Eucharist,1
deacons only obtain the power of distributing the same.
By custom rather than by divine law their power is made
subordinate to the jurisdictional power of the Ordinary,
in order to show forth the hierarchic order. Besides,
since the pastor, who must be a priest, is the legitimate
head of the flock assigned to him, it is becoming that the
a
c
1 C. »9, Dirt. 3, d* eons. (* text horror that women entered the tane-
Uken from the reform-synod of diary and distributed holy Corn-
Paris, 8zc-; cfr. Hefele, Coral., amnion.
Gesch., IV, 60. can. 45) relates with
213
Go >gle
Original from
UNIVERSITY OF WISCONSIN
214 ECCLESIASTICAL THINGS
deacon, who is his inferior, should depend on him for
permission to exercise his power.
Lay men, and especially women, are expressly excluded
from distributing Holy Communion, because they belong
not to the Ecclesia sanctificans, but to the Ecclesia sanc-
tificanda. That in extreme necessity laymen may give
communion to themselves, may be admitted, since history
reports examples of this practice.2 Deacons, then (but
not subdeacons),8 may, with the permission of the Ordi-
nary or pastor in whose diocese or parish they wish to
distribute Holy Communion, perform that function. But
the permission is not to be granted without a grave cause.
Such a cause would exist if the pastor were lawfully pre-
vented from giving Holy Communion to the people on a
holy day of obligation, or if a large number of people had
to be accommodated, making it impossible for the pastor
to finish in time. We hardly believe permission should
be granted for the sake of a few daily communicants,
unless the parents of a newly ordained deacon should
perhaps wish to receive Holy Communion at the hands
of their son. In case of necessity4 the permission may
be presumed. Such a case would be the administration
of the Viaticum, or of paschal Communion to such as
have no opportunity to receive it on some other day.
When a deacon administers Holy Communion, he may
proceed as follows: Dressed with the surplice and stole
crossed on the right side, he recites the Miscrcatur and
I ndutgentiam, making the sign of the cross over himself
or over the communicants (or, if he brings the Viaticum,
over the sick person), distributes Holy Communion, re-
2 Noldin, De Sacramcntis, ed. 10, * S. Rit. C, Feb. 25, 1777 {Dec.
n. 124. Auth., n. ^504) : "Extra cantm
3 They sometimes usurped that necessitatis non licet diacono.'
prerogative; cfr. Hefele, /. c, p. 621.
^
£ * ^ .. -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 846 215
■
cites the " O sacrum/' according to the season, then the
Dominus vobiscutn, and blesses the people (or the infirm)
with the Blessed Sacrament. All this is allowed when
the deacon has express or presumed permission.8 If he
is merely helping the pastor, he should abstain from recit-
ing the prayers and blessing the people.
In case no other priest is present, a priest may admin-
ister Communion to himself, even for mere devotion;
and the same holds good of a deacon."
N
■
"■
communion at mass and outside of it
Can. 846
§ 1. Quilibet sacerdos intra Missam et, si privatim
celebrat, etiam proximc ante et statim post, sacram
communionem ministrare potest, salvo praescripto can.
869.
§ 2. Etiam extra Missam quilibet sacerdos eadem
facilitate pollet ex licentia saltern praesumpta rectoris
ecclesiae, si sit extraneus.
§ 1. Any priest may distribute Holy Communion dur-
ing Mass, and, if he celebrates privately, also immediately
before and after Mass, with due regard to the regulations
for private Oratories laid down in can. 869.
§ 2. Even outside of Mass every priest enjoys the same
right, provided he has at least the presumed permission
of the rector of the church if he is a stranger.
§ 1 distinguishes between two kinds of Masses, of
which one is called private, while the other is not deter-
mined. What, then, is a private Mass?
There are, as Benedict XIV says,7 various meanings at-
s S. Kit. C, Aug. 14. 1858 {Die. r Dr Sacrif. Musae, I, II, c. at. n.
Auth.. n. 3074). 7.
• Noldin, I. c, n. 124.
>gle
Original fro m
UNIVERSITY OF WISCONSIN
216 ECCLESIASTICAL THINGS
St
tached to the term " private Mass." It may be a Mass
said in a private place, or on a day not a feast-day, or
because the fruit is applied to a private person, or because
only a few persons are present, or because it is not said
on the main altar or as a parochial or conventual Mass,
or, finally, because the priest alone receives Holy Com-
munion. There is a decision of the S. Congregation of
Rites8 which seems to throw some light on our subject.
The question was asked whether priests duly vested for
saying Mass could, for a reasonable cause, distribute Holy
Communion before or after the solemn Mass, or at the
Alissa cantata, or the conventual Mass, as is permitted be-
fore and after the private Mass. The answer was, no.
Hence a private Mass would be one said without sol-
emnity or chant, not as a conventual Mass, but simply for
the sake of devotion. But what about a parochial Mass?
Here we believe a distinction should be drawn as fol-
lows : The parochial Mass, properly speaking, is the
one said for the people, — the Missa pro populo, as it is
now required on all holydays of obligation and some sup-
pressed feasts. This is strictly the parochial Mass, be-
cause it is said for the people and, at least as a rule, in
their presence. On other days the pastor is supposed to
say private or merely devotional Masses, because there is
no strictly juridical obligation of saying Mass on those
days. We are aware ° that some take the term " private
Mass" simply in the sense of Missa lecta, even though
it be a parish or conventual Mass. This may be true with
regard to certain rubrical considerations, but in our case it
certainly cannot be the underlying idea, as the decision
SS. Rit. C, Jan. 19, 1906 (Anal. ft Am, Eccl. Rev., 1916, Vol. 55,
Reel., t. 14, 104 f). A conventual p. 439 f.
Mau is one either sung or read by
religious corporations.
jle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 846 217
a
quoted proves. Hence during, but not immediately be-
fore or after, a solemn, or sung, or conventual, or strictly
parochial Mass Holy Communion may be distributed,
whilst a priest saying private Mass may also distribute
it before, during, and after Mass.
Every priest is entitled to distribute Holy Communion
even in a church not his own, provided he has the at
least presumed permission of the rector of the church
where he says Mass. The accessory follows the prin-
cipal,10 which in this case is the celebration of the Holy
Sacrifice. This rule holds good also with regard to re-
ligious, although the Decretals11 were rather severe in
condemning religious who ventured to distribute the Holy
Eucharist without the special permission of the pastor.
A permission may be presumed if no express prohibi-
tion has been issued by the local pastor.
If there is a public notice hung up in the sacristy reg-
ulating the hour for distributing Holy Communion, visit-
ing priests should heed it, because it is intended to pre-
serve order.
When Holy Communion is distributed at a " Black "
Mass (which is not forbidden),111 the priest may com-
municate the faithful during Mass with particles conse-
crated in another Mass, or before and after Mass if there
is a plausible reason. However, before and after Mass
the blessing is to be omitted.13
Q
"■
10 Reg. Juris, 42, in 6*. ia S. Kit. C, July 33. 1S68 (D#c.
11 C. 1, Clem. V. 7. Autk., n. 3177).
12 S. Kit. C, July J4i 1683 (Dec.
A»lh., n. 1711).
5 'rwil^ Original from
lOOgK UNIVERSITY OF WISCONSIN
218 ECCLESIASTICAL THINGS
a
public holy communion for the sick
Can. 847
Ad infirmos publicc sacra communio deferatur, nisi
iusta et rationabilis causa aliud suadcat.
Can. 848
■
Q
■--.
§ i. Ius et oflicium sac mm coramunionem publice ad
infirmos etiam non paroecianos extra ecclesiam defe-
rendi, pertinet ad parochum intra suum terhtorium.
§ 2. Ceteri sacerdotes id possunt in casu tantum ne-
cessitatis aut dc licentia saltern praesumpta eiusdexn
parochi vcl Ordinarii.
Holy Communion should be brought to the sick pub-
licly, unless a just and reasonable cause advises otherwise.
The right and duty to bring Holy Communion pub-
licly to the sick, even though they be not his parishioners,
belongs to the pastor within the limits of his parish.
Other priests may perform this function only in case of
necessity or with the at least presumed permission of the
pastor or Ordinary.
These two canons concern countries where it is still
customary to bring Holy Communion to the sick pub-
licly, 1. e., in procession, formed by the pastor and some
faithful lay people, or by the pastor and his sexton or a
cleric who carries a light or lantern.1* Only in cases of
necessity, when the furor gentilium or violence and great
irreverence was to be feared, was secret communion per-
mitted." Special faculties were issued for countries in
1* Benedict XIV, "Inter omni- I. n. I, 3-5; May 23, 1843; Sept ia.
genus," Feb. 22, 1744. I *l l»S S. C. 1857 (.Dec, .-huh., nn. 3234, 2908,
P. F.. Sept. 11, 1779 {.Coll., n. 537). 3°5»>-
lfiS. Rit. C, Feb. iof 1871, ad
jle
£ " ^ , -,L» Original from
UNIVERSITY OF WISCONSIN
■
CANON 849 219
which there was danger of sacrilegious irreverence. Now
these faculties are no longer needed, as any reasonable
cause suffices to dispense from what was formerly the
general law. To decide whether such reasons exist, as
they surely do in our country, belongs to the Ordinary,
or the pastor, because the law fixes no limit. Our canon
puts the right of bringing Holy Communion publicly to
the sick among the parochial rights (cfr. can. 462, 3°),
but this has reference only to the public mode of admin-
istering the Viaticum, not the private. What was said
concerning religious under can. 514 must be here re-
peated.16
private communion
Can. 849
§ 1. Communionem privatim ad infirmos quilibet
sacerdos deferre potest, de venia saltern praesumpta
sacerdotis, cui custodia sanctissimi Sacramenti com-
missa est.
§ 2. Quando privatim sacra communio infirmis mi-
nistratur, rcvercntiac ac decentiae tanto sacramento de-
bitae sedulo consulatur, servatis a Sedc Apostolica
praescriptis normis.
§ 1. Any priest may bring Holy Communion privately
to the sick, provided he has the at least presumed permis-
sion of the priest who is the custodian of the Blessed
Sacrament
The custodian of a cathedral church properly is the
chapter,17 but generally the custos or dean of the chapter.
In religious communities of men the custody is entrusted
to the superior of the house, the custos sacrae supcllcctilis,
or the parish priest, if a parish is attached to the house.
10 Cfr. C. i, Clem. V, 7. " Cm. 415, I 3. '-'
jle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
220 ECCLESIASTICAL THINGS
St
The pastor is the custodian of the Blessed Sacrament in
his parish ; the chaplain, in religious communities of
women and pious institutions.
§ 2. When Holy Communion is brought privately to
the sick, care should be taken that due reverence and re-
spect is rendered to the august Sacrament according to the
rules prescribed by the Apostolic See,
One of the latest rules, taken from Benedict XIV's
Constitution "Inter omnigenas" (Feb. 2, 1744) and re-
enforccd by the S. Congregation of the Sacraments,18 is
the following: Ordinaries may permit Communion to be
brought to such as are sickly (tnala affectis valctudine)
and cannot leave their home, but would like to receive
the Holy Eucharist for devotion's sake. But the priest
must always wear the stole under his dress, or what we
call coat; the pyxis must be placed in a burse appended
by strings from the neck and carried on the breast. The
priest shall never go alone, but be accompanied by at
least one of the faithful. In case of necessity, we sup-
pose, this last condition might be dispensed with, although
it certainly is a very grave one, as appears from the
aforesaid Constitution and other instructions.1*
What we observed under can. 847 concerning the bring-
ing of Holy Communion secretly is corroborated by this
canon, and hence the faculty given in virtue of form \,
art. 24, is no longer needed.20
■
18 Dec. jj, 1912 (A. Ap. S„ IV, dispensed with on account of a
735). long trip and the possible trans-.
Id S. C. P. F., Sept. ao, 1739; parency through the light vestment.
Sepl. 11, 1770; Feh. •$. 1859 (Coll., 20 Clr. Putzcr, Comm., p. 28a 9.
nn. 324. 537, 1171) : the itole wx*
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 850 22i
the holy viaticum
Can. 850
Sacraro comraunionem per modura Viatici sivc pub-
lice sivc privatim ad infirmos defcrrc, pertinct ad pa-
ro churn ad normam can. 848, salvo praescripto can.
397, n. 3 ct can. 514, §§ 1-3.
To bring Holy Communion as Viaticum to the sick,
either publicly or privately, belongs to the pastor in ac-
cordance with can. 848, with due regard to can. 397, n.
3, and can. 514, §§ 1-3.
The right here established belongs to the strictly paro-
chial rights, and must therefore be respected by all priests,
assistants or curates, including religious, even if exempt
or acting as missionaries.21 This is also true if Terti-
aries of the Order of St. Francis are sick in their own
houses and wish to receive the Viaticum. A Franciscan
may hear their confession, but the administration of the
last Sacraments belongs to the pastor in whose parish
they live." Exempt from this rule are clerical religious
a.
and cloistered Sisters, as explained under can. 514.
Canons of the cathedral are obliged to administer the
last rites to their bishop, according to canon 397, 30.
Canons who reside in a parish must receive the last rites
at the hands of the pastor within whose jurisdiction they
live, not from the canons or dignitaries of the chapters
to which they belong, whether collegiate or cathedral.23
It may not be amiss to add that the Code mentions no
punishment for trespassing upon the rights of the pastor
21 S. C. P. F., June 13, 1633 22 S. Rit. C, June 20, 1600 (.Dec.
(Coll., n. 73). Of course, if the Auth., n. 371).
express consent of the pastor is ob- 28 S. Rit. C, Mar. 17. 1663, ad
tained, all those mentioned may ad- 4; Dec. 18, 1756 (Dec. Auth., nn.
minister the Viaticum. J-55> 2441).
►ogle
( * ^ ^ ils* Original from
UNIVERSITY OF WISCONSIN
■
pi
■"■
222 ECCLESIASTICAL THINGS
by religious, as was the case up to the date of its promul-
gation.2* But it may also be useful to state that, as the
right of pastors is here set forth, obedience involves a
duty. Hence the pastor should not wait until he is
called to the sick, but lovingly and prudently seek them
out and persuade them to receive the Sacraments.1*
He should not discriminate between poor and rich, be-
tween those of noble and those of low birth or station."
It is the duty of the Ordinary to see to it that this obliga-
tion is not neglected by the pastors under his jurisdiction.
This is one point that may be investigated at the canonical
visitation.27
Can. 851
§ 1. Sacerdos sacram communionem distribuat
azymo pane vel fermentato, secundum proprium ritum.
§ 2. Ubi vero necessitas urgeat nee sacerdos diversi
ritus adsit, licet sacerdoti oricntali qui fermentato uti-
tur, ministrare Eucharistiaro in azymo, vicissim latino
aut orientali qui utitur azymo, ministrare in fermen-
tato ; at suum quisque ritum ministrandi servare debet.
The priest shall distribute Holy Communion according
to his rite, either in unleavened or in leavened bread.
But in case of necessity, if no priest of the respective
rite is present, a priest of the Oriental rite, who would
otherwise use leavened bread, may administer the Holy
Eucharist in unleavened bread, and, conversely, a priest
of the Latin or Oriental rite, who would ordinarily use
unleavened bread, may give Holy Communion in leav-
24 Pius IX, " Apostoiicae Sedis," tudmum," Sept 12, 1744, 5 14, ad
Oct 12. 1869. II. 14. dub XII.
25 S. C. P. F.. Sept. 11, 1 719 ^ lb., " Firmand\s," Nov. 6, 1744.
{Coll., o. 5J7>- ■ 9-
■•Benedict XIV, Omnium soltici-
►ogle
Original from
UNIVERSITY OF WISCONSIN
CANON 852 223
ened bread ; but each must observe the rubrics of his own
rite.
Orientals generally use leavened bread for the Holy
Eucharist, only the Armenians and Maronites are accus-
tomed, ever since the fourth century, to consecrate and
distribute unleavened bread.28 The faithful, though they
may gather in a church which serves both rites, must
receive Holy Communion at the hands of the priest of
their own rite, consequently in unleavened bread, if their
rite so prescribes, or in leavened bread, if their rite pre-
scribes that kind.29 Pius X, who so ardently advocated
frequent Communion, ruled in one of his Constitutions
that, although unwarranted promiscuity of rite should be
avoided, the faithful may, even for mere devotion's sake,
receive Holy Communion according to any rite,80 and
consequently under the species of either leavened or un-
leavened bread. But the administering priest must say
the prayers and observe the ceremonies according to his
own language and rubrics.
COMMUNION UNDER THE SPECIES OF BREAD
p
-
L
Can. 852
E
Sanctissima Eucharistia sub sola specie panis prae-
bettor.
Holy Communion may be administered under the spe-
cies of bread only.
This brief canon recalls a long history of dissension
and tragedy, especially in Bohemia, which the unhappy
Hus attempted to separate from the centre of unity. He
M Benedict XIV, *' Ailatae sunt;' 30 " Tradita ab antiquis." Sept 14,
July 26, 1755. I 23. «9" W. Ap. S.t IV, 615 £.). II,
20 Ibid., " Etri Ptutoralit," May III.
a6, 174s, 9 VI, n. XI.
jle
j , Original fro ni
UNIVERSITY OF WISCONSIN
224 ECCLESIASTICAL THINGS
was not the originator of the demand for communion
under both kinds, but his disciples carried the subversive
principles of the master to their final consequences and
adopted the chalice for the laity as a symbol of the Hus-
site union.81 Against these heretics the Council of Con-
stance, whose decision was approved by Martin V, main-
tained the ancient practice of the Church, which, as it
says, was introduced in order to avoid the danger and
scandals which so easily occur when Holy Communion
is given under both species.81 This text makes it evident
that the law enacted in our canon is ecclesiastical, not
divine, and, consequently, that the Church may tolerate a
contrary custom, as she does among several (not all)
Oriental rites.88 But where the practice is connected with
a heretical tendency, the Church must combat it. This
tendency lies in the belief either that Christ is not re-
ceived entirely under one species, or that the use of the
chalice is required by divine law and hence the Church
was mistaken in forbidding it. Where this error has
taken root, the faithful must be carefully instructed and
the use of the chalice gradually abolished.84
ARTICLE II
■
the recipient of holy communion
Can. 853
Quilibet baptizatus qui iure non prohibetur, admitti
potest et debet ad sacram communionem.
Every baptized person not forbidden by law may and
must be admitted to Holy Communion.
81 Cf. Funk, Manual of Church as Benedict XIV, '* Atlatae," July
History, 1913. Vol. II. p. 35. ^6. '755. 5 *S-
B2 Martin V, " In eminentis," Feb. 34 S. C P. F., Dec. 6, 1777 (.Coll.,
22, 1418 (Denz., a. 565). n. 5*4)-
>Ic
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 854 225
Every baptized person is by divine right entitled to
receive Holy Communion, because Baptism has bestowed
this right upon him. The obligation to receive Holy
Communion rests, not on its absolute necessity for sal-
vation (necessitate medii), but on the divine precept
contained in the words of our Lord : " Unless you eat
the flesh of the Son of Man, you shall not have life in
you" " This is a general law, which is based on the
very end and organization of the Church. It has been
modified in the course of centuries by special laws and
regulations laid down by the Church for the welfare of
the faithful and to safeguard the reverence and devotion
due to this august Sacrament. The Church repels no one
from the holy Table, even though his condition be humble,
his mind weak, whether he lives in a palace or a sordid
hut. All are called by Christ to His banquet,88 and there-
fore the priests arc in duty bound to ofTer every oppor-
tunity to the faithful for receiving Communion and to lay
aside unreasonable and Jansenistic scruples. This does
not mean that they should indiscriminately admit all, even
public sinners, practical pagans, and unworthy Catholics
who are a scandal to their community. Certain guiding
rules " are set forth in the following canons.
c
COMMUNION OF CHILDREN
■ <
Can. 854
c
§ 1. Pueris, qui propter aetatis imbecillitatem non-
dum huius sacramenti cognitionem et gustum habent,
Eucharistia ne ministretur.
§ a. In periculo mortis, ut sanctissima Eucharistia
35 John VI, 54. ent IX, " In excetia,'- 5cpt. 13,
38 Alex. VII, " Sacroiancti." Jan. 1669.
18. 1658, in XII, XIII (Coll. P. F.. 37 S. C. P. F., April 29, 1784
n. tag); of the same tenor is Clem- (Coll., n. 569).
oogle
i*~* ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
226 ECCLESIASTICAL THINGS
pueris ministrari possit ac debeat, satis est ut sciant
Corpus Christi a communi cibo discemere illudquc
rcvercntcr adorare.
§3. Extra mortis periculum pknior cognitio doc-
trinae christianae et accuratior praeparatio merito ex-
igitur, ca scilicet, qua ipse fidei saltern mysteria neces-
saria necessitate medii ad salutem pro suo captu per-
cipiant, et devote pro suae aetatis modulo ad sanctissi-
mam Eucharistiam accedant
§ 4. De sufficient puerorum dispositione ad primam
communionem iudicium esto sacerdoti a conf essionibus
eorumque parentibus aut iis qui loco parentum sunt
§ 5. Parocho autem est officium ad vigilandi , etiam
per examen, si opportunum prudenter iudicaverit, ne
pueri ad sacram Synaxim accedant ante adeptum usum
rationis vel sine sufficienti dispositione; itemque cu-
randi ut usum rationis assecuti et sufncienter dispositi
quamprimum hoc divino cibo reficiantur.
§ 1. To children who, by reason of their tender ape,
are unable to know and desire this Sacrament, it should
not be given.
The dogmatic aspect of this canon is stated by the
Council of Trent when it says that there is no obligation
for children to receive Holy Communion," because be-
ing regenerated in the laver of Baptism, and embodied in
Christ, they have received the grace of adoption, which, at
their age, they cannot lose.88 The same Council refused
to reprimand or forbid the custom of the Orientals to give
Holy Communion to children under both species,*0 as
88 Sess. 2i, can. 4 de Com- communion even to children only
munione. eight days old. who would often
88 Ibid., cap. 4. vomit up the species of the sacred
40 Among the Copts of Egypt the bluotl; S. O., June 14, 1741 {Coti.
custom prevailed to administer holy P. !■'.. n. 336).
jle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 854 227
long as belief in its necessity was not defended. But
Benedict XIV forbade the Italian Greeks to follow that
practice.*1 In the Latin Church the custom of admin-
istering Holy Communion to infant children never took
root, and it is now universally forbidden. Our text is
taken from the Rituale Romanum,** which has been the
law for the Latin Church in the matter.
Our canon does not specify any age, but says, " pueris
qui cognitionem et gustum non habent." The limit, ac-
cording to can. 83, § 3, is about the seventh year. But
this limit is not to be taken in the strict sense, because
the clause is modified by the apposition phrase: "who
have neither knowledge nor desire of the Holy Euchar-
ist." Precocious children may have such a knowledge as
well as desire, and may therefore be admitted to holy
Communion. But no obligation to admit them before the
seventh year can be read into the text, nor has such an
obligation been established by the latest decrees.*8
§ 2. Holy Communion may and must be administered
to children who are in danger of death if they are able to
distinguish the Holy Eucharist from common bread, and
to adore it reverently. This means that they should be
able to grasp at least the most necessary notion of that
mystery, the real presence of Christ in the Holy Eu-
charist." It has been officially styled a M detestable
abuse " not to administer the Viaticum to children who
have attained the age of reason.
§ 3. Apart from the danger of death, a fuller knowl-
edge of Christian doctrine and a more careful prepara-
tion is justly demanded, so that they may know, as far
a
c
ti " Ctji pajtaralij," | IIf ». <a S. C. Sacr., Aug. 8, 1910 n. I
VII; cf. Idem, " AllaM," July 36. (A. Ap. S., II. 581).
1755. I 24- **S. O., April io, 1861, ad 1
4J Tit IV, c. 1, n. tt. (.Coll., n. laij).
jle
j , Original fro m
UNIVERSITY OF WISCONSIN
228 ECCLESIASTICAL THINGS
a
as they are capable, at least the mysteries which are abso-
lutely necessary for salvation {necessitate medii) and ap-
proach the Holy Eucharist devoutly, according to the
capacity of their age. This sounds quite different from
the propositions proscribed in 1687 and 1690, of which
the former required a passive attitude without an act
of virtue or persona! effort, whilst the latter demanded
an absolutely pure love of God without any alloy as a
requisite for receiving Holy Communion.45
The mysteries that are necessary necessitate medii for
salvation are the Blessed Trinity and the Incarnation,
of which the latter is an indispensable preamble to the
mystery of the Holy Eucharist.
The age at which the obligation of receiving Holy Com-
munion begins is approximately the seventh year. A full
and perfect knowledge of the catechism is not required.**
Formerly children had to be fully instructed in all the
questions of the Catechism before they were admitted to
the Sacred Table, but Pius X changed that.
§ 4. It belongs to the confessor and to the parents or
guardians to judge whether children are sufficiently pre-
pared for first Holy Communion.
§ 5. But it is the pastor's office to see to it, even by an
examination if he prudently deems it opportune, that
children are not admitted to Holy Communion before
they have attained the age of discretion or without suffi-
cient preparation, and to take care that those who have
attained the use of reason and are sufficiently prepared,
are nourished with this divine food as soon as possible.
Benedict XIV instructed bishops to admonish pastors
not to admit any one to Holy Communion who did not
know the more important articles of faith and chapters
45 Prop, si (of Mich. Molinos) : 48 S. C Sac, Aur. 1910 {A. Ap.
propoi. 33 (Dcnz., nn. 1119, 1180). S., II, $8a, n. II k III).
^
% ,.] , Original fro rn
UNIVERSITY OF WISCONSIN
CANON 855 229
a
of Christian doctrine and the strength and efficacy of the
Bl. Eucharist.47
a
N
■
who abe not to be admitted to holy communion
Can. 855
§1. Arcendi sunt ab Eucharistia publice indigni,
quales sunt excommunicato, interdicti manifestoque in-
fames, nisi de eorum poenitentia et emendatione con-
stet et publico scandalo prius satisfecerint
§ 2. Occultos vero peccatores, si occulte petant et
eos non emendatos agnoverit, minister repellat; non
autem, si publice petant et sine scandalo ipsos prae-
terire nequeat.
§ 1. The Holy Eucharist may not be given to such as
are publicly unworthy, e. g., the excommunicated, inter-
dicted and notoriously infamous, unless they have given
signs of repentance and amendment and have repaired
the scandal publicly given.
The general rule, as laid down by Benedict XIV,48 is
that public and notorious sinners must not be admitted
to Holy Communion, no matter whether they demand it
publicly or secretly. To give them the Body of Christ
would be to cooperate in a profanation of the Sacrament,
and such cooperation cannot be justified even on the plea
of saving the good name of the petitioner, because by the
publicity and notoriety of his crime he has lost the claim
to a good name.
■"■
4T " Etri minim*," Feb. 7. »74». Constitution of Clement IX. " Uni-
I o. There is, of course, room left gfnitus," Sept. 8, i7U. by which
for speculation. 101 propositions of Paschasius Ques-
48 " Ex omnibus," Oct. 16, 1756. nel were condemned and which hid
8 j f. The case concerned the aroused opposition.
ogle
( * ^ -. %\s* Original from
UNIVERSITY OF WISCONSIN
230 ECCLESIASTICAL THINGS
St
The next question is: Who are public and notorious
sinners? According to the same Pontiff sinners arc pub-
lic and notorious, (a) if they have been declared such
by an ecclesiastical judge, or (b) if they have publicly
confessed their crimes or, as we say, '"pleaded guilty";
or (c) if they have committed in word or deed a crime
that still lasts and is known to the public as not atoned for
and therefore is a source of scandal. A sin is therefore
notorious when it cannot be concealed, and public, like a
matrimonial impediment, when it can be proved in court
All of which supposes, in our case, that the priest as well
as the congregation, or at least the larger part thereof,
are aware of the un worthiness of the one who wishes to
D
receive Communion. If the priest knows nothing, or
doubts the publicity or notoriety of the crime, it would
certainly be safer to give the Holy Eucharist to one who
publicly asks for it.49
The text adds : " quales sunt excommunicato interdicti
tnanifestoque infames." Excommunication requires at
least a declaratory sentence, and hence notoriety is easily
acquired. By interdicti must here be understood those
who arc under a personal interdict, because this alone fol-
lows the person.50 Infamy is attached to certain crimes,
either ipso facto,11 or by declaration of the ecclesiastical
court. Our canon does not distinguish between excotn-
municati vitandi and tolcrati, nor between infamy of fact
and of law, nor between excommunication reserved to the
Holy See (in whatever form) and excommunication re-
Q
as Lehmkuhl, /. i., II, n. 40. engage in duelling), in can. jj$6
60 Cf, can. 2269, t *• (polygamies), in can. .2357 (those
fti Ipso facto infames are those condemned for unnatural crimes
mentioned in can. 2320 (who dese- contra sextum). Infames formerly
crate the sacred species), in can. were the histriones, or public acton,
2348 <who desecrate graves), in can. who perverted young people; c. 95,
3342 (who maliciously lay hands on Diat. 2, At cons.; also public urur-
the Pope), in can. 3351 (thoie who ers; cr. 3, 5, X, V, 19.
ogle
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 855 231
served to the Ordinary.52 Hence all these categories are
comprised by the term "publics indigni."
But the legislator adds the clause: unless it is known
that they have repented and amended and repaired the
public scandal they have given. Both these conditions
are required. The following rules " are generally set up
for judging the external disposition — of the internal men
can hardly form a judgment — of a penitent:
(1) If a public sinner has lived in proximate occa-
sion of sin, he must abandon it before he can be admitted.
This applies especially to concubinarians.
(2) If no proximate occasion is involved a confession
made publicly, or seen by several persons who are ready
to testify to the fact, suffices, provided no ecclesiastical
sentence has been pronounced; for if sentence of excom-
munication or a verdict was publicly pronounced, or in-
famy publicly declared, mere confession is not sufficient,
but the sentence must first be withdrawn by the authority
who pronounced it. After proper rehabilitation the
penitent may be admitted unless he has again given
public scandal.
(3) If a public reparation is required, as it sometimes
is from those who have contracted marriage before a
non-Catholic minister, it must be made before the culprit
is admitted to Holy Communion.
(4) In the case of those who have relapsed into a vi-
cious crime, if confession was made and the scandal
somewhat repaired, some time should elapse before they
are admitted to Communion, so that there be some guar-
antee of genuine amendment.
Those who order their bodies to be cremated after
-
death, though they arc not members of a Masonic sect nor
ItC 9, C. 11, q. 3.
sa C(. Lchmkuhl, II, n. 41; Koldin, /. c, b. 37.
►ogle
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
2^2 ECCLESIASTICAL THINGS
have embraced its principles, must be admonished to re-
tract the order, otherwise they cannot be given the last
Sacraments. If admonition proves fruitless and no scan-
dal is to be feared, they may be admitted to the Sacra-
ments, provided they are in good faith.5*
§ 2. Occult sinners, if they ask secretly and the priest
knows they have not amended, should be refused the
Bl. Sacrament; but not if they ask publicly and cannot
be passed over without scandal.
This rule was made to spare the good name of such
occult sinners as have not lost their reputation. Oc-
cult sinners are those whose unworthiness or crime is
known only to a few persons and, we must add, which
will not be proved in court within a short time.
All these, then, according to the general rule of the
Church,56 must be admitted to the Bl. Sacrament, if they
ask for it publicly, i. c, approach the Communion railing
together with others. The same rule holds good if such
a one asks for the Viaticum, but in that instance the
priest should elicit an act of sincere contrition and de-
mand the retraction of possible errors50 before he ad-
ministers the Viaticum.
Freemasons and others who secretly belong to a sect
condemned by the Church, cannot be refused if they
publicly approach the Holy Eucharist, but notorious mem-
bers of a condemned sect may and should be repulsed.5*
Can. 856
Nemo quem conscientia peccati mortalis gravat,
quantumcumque etiam se contritum existimet, sine
b« S. O., July 17, 189a {Coll. P. •« Ibid. This may alio be the
F., n. 180a ad 1). cue with lecrct ModernifU.
lift Benedict XIV. "£* omnibut," 5T S. O., Aug. t, 1855 (Cotl. P. F..
I 9. ■. in6).
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 857 233
praemissa sacramental! confessions ad sacram com-
munionem accedat : quod si urgcat ncccssitas ac copia
confessarii illi desit, actum perf ectae contritionis prius
eliciat.
u
No one who is conscious of a mortal sin, no matter
how sorry or contrite he may feel, is allowed to receive
Holy Communion without having previously gone to con-
fession. In case of urgent necessity, when no suitable
confessor is at hand, such a one must make an act of per-
fect contrition before approaching the Sacred Table.
This canon we leave to moralists to explain, because it
pertains to the court of consequence. We will only
add that this law, no matter whether it be regarded as
divine or ecclesiastical, is a grave one, as is apparent from
the Council of Trent. Copia confessarii must be under-
stood of any confessor with the necessary faculties who is
not an accomplice of the penitent. Theologians say that
the repugnance to, or impossibility of going to confession
must be such as is not directly connected with the act it-
self. Urgent necessity of receiving Holy Communion
exists when one has to fulfill the paschal obligation, and
before contracting marriage.
•
COMMUNION MAY BE RECEIVED ONLY ONCE A DAY
Can. 857
■
■
Nemini liceat sanctissimam Eucharistiam recipere,
qui earn eadem die iam receperit, nisi in casibus de
quibus in can. 858, § 1.
No one is allowed to receive Holy Communion on the
day on which he has already received it; exception is
made in case of the Holy Viaticum or irreverence to be
avoided (see can. 858, §1).
Q
jle
v ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
■
534 ECCLESIASTICAL THINGS
the eccharistic rast
Can. 858
§ i. Qui a media nocte ieiunium naturale non scrva-
verit, nequit ad sanctissimam Eucharistiam admitti,
nisi mortis urgeat periculum, aut necessitas impediendi
irrevcrentiam in sacramentum.
§ 2. Infirmi tamen qui iam a mensc decumbunt sine
certa spe ut cito convalescant, de prudenti confessarii
consilio sanctissimam Eucharistiam sumere possunt
semel aut bis in hebdomada, etsi aliquam medicinam
vel aliquid per modum potus antea sumpserint
§ 1. One who has not fasted since midnight cannot be
admitted to Holy Communion, except he be in danger of
death, or it be necessary to prevent irreverence towards
the Blessed Sacrament.
This law is ecclesiastical only, but very ancient. It
has always been rigorously enforced by the Church. The
Pope alone has power to dispense from it.58
It does not, however, apply to those who are in prob-
able danger of death, i. e., suffering from a sickness which
may prove fatal. Soldiers going into battle are not per
se exempt from it. If wounded, of course, the law ceases
for them too ; but it does not cease for those who have to
meet sentence of death, unless they are at the same
time suffering from a serious disease.59 The second rea-
son which excuses from fasting and also from the law
that Holy Communion may be received but once a day, is
if* C. 54, Dist 2, de eons.; Bene- ai, 1841 {Coll., n. 928) mention*
diet XIV. " Quadam." Match 24. the case of prisoners to whom Holy
1756. I 3 (dispensing James III of Communion must be given u Viiti-
£agland). cum, but nothing is said of their
*» July 5, 1854, ftd 1 (Coll., n. being dispensed from the law of fut-
1090); the quotation of Noldin tag.
U t., n. 154), from S. C. P. F., July
.'le
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 858 235
the necessity of preventing irreverence towards the
Blessed Sacrament. This would exist, e. g., if the altar
or church were on fire or about to collapse, leaving no
time for removing the Bl. Sacrament to a place of safety;
or if it would be impossible to secure it from profanation
by invading barbarians, heretics or infidels.
Beyond these two cases a canonist cannot stretch the
interpretation, although it is customary G0 to add another :
ad vitandum scandalum publicum. This may be admitted
as a matter of equity which inheres in every human law.
§ 2. The sick who have been in bed for a month and
have no certain hope of speedy recovery, may, if the con-
fessor prudently advises, receive the Holy Eucharist once
or twice a week, even though they have taken medicine
or something by way of a drink.
This privilege now applies to all the faithful without
exception.81 All that is required is the confessor's (not
the pastor's) advice.
"Per median potus" includes broth, coffee, or any
liquid food mixed with something solid, as, for instance,
wheat-meal (semolino) or ground toast (pangrattato),
etc., provided the liquid form remains.82 Whether an
egg-nog would be allowed seems to be doubtful," al-
though in case of great weakness we should not hesi-
tate to permit this mixture, as long as the liquid form
prevails. We also submit the following considera-
tions :
(1) The law of fasting before Holy Communion cer-
tainly is an ecclesiastical positive law which is complied
«o Noldin, /. c, 153. «2 S. O., Sept. 7. 1897 (Coll.. n.
Qi A decree of S. C. C, Dec. 7, 1983).
1006 {Anal. Eccl., t. 14. 486 f.) «a Prummer, I. c. III, n. J03.
permitted it once or twice a week would admit it; also Ballerini-Pal-
for pious institutions; for the rest, mieri (Opus Thtol. Moral*, IV,
once or twice a month. 730).
oogle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
236 ECCLESIASTICAL THINGS
with by those sick persons who can and do fast, say,
three or five times a week. Consequently, they are en-
titled to receive Holy Communion without any restriction,
provided they are disposed for, and desirous of, receiv-
ing it. In other words, they must strictly observe can.
858, § 1.
(2) § 2 of same canon undoubtedly is a favorable
extension or mitigation of an otherwise strict law. And
this modification allows sick persons in casu to receive
Holy Communion once or twice a week even though they
have taken medicine or something per mod urn potus,
which a decree of S. C. C. (Dec. 7, 1906) explains as a
beverage mixed with some bread (toast), egg or milk.
This is a positive grant or permission which the lawgiver
undoubtedly wishes to see made use of in order to foster
the frequency of Holy Communion. However, there
would be no grant or favor conveyed by § 2, can. 858, if
the persons in casu would not be permitted to receive once
or twice a week, supposing they had already received in
compliance with § 1 of the same canon. Hence I con-
clude that § 2 grants something beyond and besides what
is stated in § 1. Therefore if a sick person could re-
ceive five times with fasting, he or she would also be
allowed to receive once or twice a week without fasting,
and hence daily or almost daily. This view is in keeping
with the mind of the lawgiver, who wishes to promote
frequent Communion, and also with the old adage :
favorcs convenit ampliari.
obligation of receiving communion
Can. 859
§ 1. Omnis utriusque sexus fidelis, postquara ad an-
nos discretions, idest ad rationis usum, pervenerit, cle-
Go >gle
% ,| , Original from
UNIVERSITY OF WISCONSIN
CANON 859 237
at
bet semel in anno, saltern in Paschate, Eucharistiae
sacramentum recipere, nisi forte de consilio proprii
sacerdotis, ob aliquam rationabilem causam, ad tem-
pos ab eius perceptione duxerit abstinendum.
§ 2. Paschalis communio fiat a dominica Palmarum
ad dominicam in albis ; sed locorum Ordinariis fas est,
si ita personarum ac locorum adiuncta exigant, boc
tempus etiam pro omnibus suis ridelibus anticipare,
non tamen ante quaxtam diem dominicam Quadrages-
imae, vel prorogare, non tamen ultra fcstum sanctis-
simae Trinitatis.
•a
§ 3- Suadendum fidclibus ut huic praecepto satis-
f aciant in sua quisque paroecia ; et qui in aliena paroe-
cia satisfecerint, curent proprium parochum de adim-
pleto praecepto certiorem facere.
§ 4. Praeceptum paschalis communionis adhuc
urget. si quis illud praescripto tempore, quavis de
causa, non impleverit.
§ 1. Every Catholic, of either sex, who has reached the
age of discretion, i. e., attained the use of reason, must
receive Holy Eucharist once a year, at least during Easter
time, unless his own priest should, for a reasonable cause,
advise him to abstain from it for a time.
The summary of the Decretals M says: "This is a
famous chapter and often to be quoted." It is famous
especially for the reason that some non-Catholic writers
use it to establish the date when auricular confession was
introduced into the Church. The initial words are taken
from a Decretal of the Fourth Lateran Council, which
was adopted as an ecclesiastical precept by the Council
of Trent.65 The precept was made obligatory even for
missionary countries like China, as far as the annual
•4 C. 13, X. V, 38. 05 Sess. 13, can. 9, de Euch.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
■"■
238 ECCLESIASTICAL THINGS
obligation goes, though as to the time some liberty was
naturally left to the missionaries.88 The obligation com-
mences as soon as discretion has been attained, i. e., about
the seventh year of age.91
The next clause, concerning the confessor's counsel to
abstain for a time, may be understood in the sense of
spiritual direction, or as a reparation for scandal given,
or similar reasons. The penitent's own priest, according
to the Decretal, means the parish priest, and this no doubt
is also the meaning of our text, though we believe that if
the penitent would tell the pastor about his confessor's
counsel, the pastor should not further trouble himself or
the penitent.
§ 2. The time for receiving the Paschal Communion
extends from Palm Sunday to Low Sunday; but the
local Ordinaries may prolong the time for all the faithful
of their diocese from Laetare Sunday to Trinity Sunday,
both inclusive, provided circumstances of persons and
place demand such a prolongation.
Benedict XIV had extended the time for receiving the
Paschal Communion for Servia °8 from the beginning of
Lent to Pentecost and in our country it was by special
faculties prolonged from Lent to Trinity Sunday. Here-
after the common law must be observed, which, however,
permits the Ordinaries to extend the term as stated.
Every such extension must be duly promulgated, and if
the bishop extends the time, it also benefits religious, who
may therefore distribute Holy Communion in their
churches during that time.08 If the Holy Eucharist is
distributed during the solemn Mass on Holy Saturday, the
ea S. O., March 23. 1656, Nov. 13, oh "Inter omnigtnas," Feb. a*,
1660: S. C P. F.. Sept. 1 a. 1645 1744. 9 21.
tColl., nn. 1*6, 189, 114)- «o Benedict XIV, " Magno cum
07 S. C. Sac, Aug. 8, 1910, ad 1 animi," June 2, 1751, 9 2a.
{A. Ap. S., U, 58a).
jle
£ " ^ ^ -As* Original from
UNIVERSITY OF WISCONSIN
CANON 860 239
faithful who receive it comply with this commandment."
§ 3 says that it is advisable for the faithful (therefore,
no longer71 a strict command), to receive the Paschal
Communion in their own parish church, and if they have
received it in another church, to notify their pastor of
the fact.
§ 4. The precept of receiving the Paschal Communion
obliges even after the lapse of the prescribed term, and
should therefore be complied with as soon as possible, and
one may not wait until the next Easter time if he has
neglected this duty.1'
■
the duty of parents and others
Can. 860
Obligatio praecepti communionis sumendae, quae
impuberes gravat, in eos quoque ac praecipue recidit,
qui ipsorum curam habere debent, idest in parentes,
tutores, confessarium, institutores et parochum.
This canon reminds parents, guardians, confessors,
directors of schools and pastors, of the obligation in-
cumbent upon them to see to it that impuberes entrusted
to their care comply with the precept of receiving Holy
Communion at least once a year, during Easter time.
Puberty, according to can. 81, § 2, commences for boys
with the fourteenth, and for girls with the twelfth year,
completed. After that age the obligation, if not morally,
ceases at least juridically, for the classes of persons named
in the text.73 *
TO S. Rit C, March 22, 1806 (Dec. July 8, 1440; Pniemmcr. I. c, III,
Avth., n. *sfii). n. 212.
71 Cfr. Benedict XIV, " Magno T3 S. C. Sac., Aug. 8, 1010, ad IV
cum animi," } 22. (A. Ap. S„ II, 583).
7? Eugene IV, " Fidt digna.
a
v ,1,., Original from
UNIVERSITY OF WISCONSIN
>gle
240 ECCLESIASTICAL THINGS
unworthy communion does not satisfy the law
Can. 86i
N
Praecepto communionis recipiendae non satisfit per
sacrilegam communioncm.
The precept of receiving the Eucharist is not complied
with by a sacrilegious Communion.
The contradictory proposition was condemned by In-
nocent XL7* One who has knowingly and willingly made
a sacrilegious communion must, either before the lapse
of the term, or as soon as possible after the expiration
of the paschal time, receive Communion worthily.
communion on holy thursday
Can. 862
■
Expedit ut feria V maioris hebdomadae omnes
clerici, etiam sacerdotes qui ea die a Sacro litando ab-
stinent, sanctissimo Christ: Corpore in Missa sollemni
seu conventuali reficiantur.
It is becoming that, on Holy Thursday, all the clergy,
even the priests who abstain from saying Mass on that
day, receive Holy Communion at the solemn or conven-
tual Mass.
Because, as a rule, there should be only one solemn
Mass on Holy Thursday, many priests are free from the
obligation of celebrating on that day. To perpetuate the
memory of that Sacred Day, on which the Lord Himself
distributed his Body and Blood, the Ordinaries are ad-
monished to distribute Holy Communion to the clergy.™
The S. Congregation has more than once declared that
T4 Prop. 55 dam., March 4, 1679 to Caeremoniaie Ep., 1. II, c. zj,
(Den*., n. 1072). n. 6.
Gj ^ Original from
OO^lt UNIVERSITY 0FWI5C0NSIN
■"■
CANON 863 241
the bishop can compel dignitaries and canons and their
substitutes, if they axe not obliged to say Mass/8 to re-
ceive Holy Communion from him or another celebrant.77
However, our text cannot be construed as implying a
strict obligation, as " ex p edit" does not signify a strict
law in canonical language. The Ordinary shall, there-
fore, use persuasion rather than force. After all the
clergy have received Holy Communion, the civil magis-
trates may be admitted before the rest of the people, and
at the procession, march after the baldachino.78
FREQUENT COMMUNION
D
Can. 863
E
municent.
Excitentur fideles ut frequenter, etiam quctidic, pane
Eucharistico renciantur ad normas in decrctis Apo-
stolicac Scdis traditaa ; utque Missae adstantes non so-
lum spirituali a fleet u, sed sacramentali etiam sanctissi-
mae Eucharistiae perceptione, rite dispositi, com-
We are familiar with the rules concerning frequent
Communion laid down by the saintly Pius X. The
Church has never ceased" to exhort the faithful to fre-
quent, nay even daily Communion, not only in spirit, but
in reality, provided they were duly prepared. Jansenism,
as is well known, was opposed to this practice, nor were
the troublesome times of the French Revolution and the
teaching of Wessenberg in Germany and the synod of
1« If a holy-day of obligation 1837 (Dec. Auth., nn. 970, 2079,
would fall on that day, several 2480. 2769).
priests would have to say Mass; S. "■'• S. Kit. C, Aug. 12, 1854 (Dec.
Kit. C, Sept. 27, 1716 (Dec. Auth., Auth., n. 3024).
n. 2240). and thus could not receive. "0 S. C. C, Feb. 1679 (Denz., n.
TT S. Rit C, Sept 19, 1654; Sept. 1086).
10, 1 Tot; Dec. 2*, 1770; Sept. 23,
*Ic
J , Original fro ni
UNIVERSITY OF WISCONSIN
tt
tt
242 ECCLESIASTICAL THINGS
Pistoja in Italy favorable to its growth. But finally a
pacific victory was brought about by the efforts of
I Pius X.
Our text mentions the norms laid down in the decrees
issued by the Holy See. These norms are especially the
Sacra Tridentina Synodus," of Dec. 20, 1905, the
Editae saepe," of May 26, 1910, and the " Qitam
singulari," of the S. Congregation of the Sacraments, of
Aug. 8, 1910. The latter was ordered to be read an-
nually in the vernacular, but the purpose of this provision
seems to be attained by the promulgation of the Code,
which embodies the main contents of the decree. We
may therefore assume that the decree need no longer be
read, though it would not be wrong to do so.
duty of receiving the viaticum
Can. 864
§ 1. In periculo mortis, qua vis ex causa procedat,
fidcles sacrae communionis recipiendae praecepto
tenentur.
§ 2. Etiamsi eadem die sacra communionc fucrint
rcfccti, valde tamen suadendum, ut in vitae discrimen
adducti denuo communicent.
§ 3. Perdurante mortis periculo, sanctum viaticum,
secundum prudens confessarii consilium, pTuries, dit-
tinctis diebus, administrari et licet et decet.
§ 1. When there is danger of death, no matter from
what cause it arises, the faithful are obliged by the pre-
cept of receiving Holy Communion.
This precept, though purely ecclesiastical, is a
grievous one. Tt was insisted upon already by the Coun-
cil of Nicaea.80 Priests, therefore, should take care that
■0 c. 9, c. *6, q. 1.
§le
f* ^ -. -Ar* Original from
UNIVERSITY OF WISCONSIN
p
CANON 865 243
the Holy Eucharist be always ready for sick calls.81
From -whatever cause the danger may arise, says the text,
which means that not only intrinsic maladies or diseases
are to be considered but also extrinsic causes, such as a
sentence of death awaiting prisoners.82 Besides, though
the illness may last a long time, as is the case with con-
sumptives, the Holy Viaticum should not be delayed, es-
pecially if they live at a distance."
§ 2. Although these have already received Holy Com-
munion on the same day, they should be strongly advised
to receive it again when the crisis sets in.
The Code has hereby cut short the controversy 84 on the
necessity and admissibility of receiving Holy Communion
twice on the same day. It is not only permissible, but
even advisable, when there is danger of death, though no
strict obligation is enforced.
§ 3. It is lawful and becoming to administer the Viati-
cum several times on different days as long as the danger
of death lasts, according to the prudent judgment of the
confessor.88 In that case the formula " Corpus Domini "
is used.
Can. 865
Sanctum Viaticum infirmis ne nimxum differatur ; et
qui animarum curam gerunt, sedulo advigilent ut eo
, infinni plene sui compotes renciantur.
The Holy Viaticum should not be too long deferred,
and those in charge of souls should take great care that
the sick receive it while fully conscious.
This law has been time and again impressed upon
•1 C. 93, Dlit. 2, de cons. w S. C P. F., Feb. ao, 1B01
82 S. C. P. F„ July ax, 1841 {Coll., 657): morbo ttico.
{Coll., n. 9^8), bat in that cate tbey 84 Cfr. Noldin, /. c, n. 138.
would have to fast. « Rit. Rom., tit. IV, c. 4. »■ 3-
jle
f~* ^ .. ,|,, Original from
UNIVERSITY OF WISCONSIN
N
■
Q
244 ECCLESIASTICAL THINGS
bishops as well as pastors.86 It is a matter for the Ordi-
nary to investigate at the time of the canonical visitation.81
The reason is not far to seek ; the better the disposition of
the recipient, the greater the effects of this holy Sacra-
ment.
Can. 866
RITE OF HOLY COMMUNION
c
§ 1. Omnibus fid el ib us cuiusvis ritus datur facultas
ut, pietatis causa, sacramcntum Euchahsticuin quoli-
bet ritu confectum suscipiant.
§ 2. Suadendum tamcn ut suo quisquc ritu fideies
praccepto communionis paschalis satisfaciant.
§ 3. Sanctum Viaticum moribundis ritu proprio ac-
cipiendum est ; sed, urgente necessitate, fas esto quoli-
bet ritu illud accipere.
Holy Communion, even for devotion's sake, may be
distributed to the faithful of any rite in the species conse-
crated in any rite ; but they should be advised to receive
the Paschal Communion in their own rite. The Holy
Viaticum should, except in case of necessity, be received
by the dying in their own rite.
These are the rules laid down by Benedict XIV, Leo
XIII, and Pius X,88 who all wished to see the faithful re-
ceive Holy Communion as often as their devotion and
spiritual welfare demand. The condition, of course, is
that the rite be Catholic, not schismatic or heretical.60
M Alexander VII, " Sscrosaneli," 174a, I VI, n. XIII «.; " Oritn fa-
Jan. 18, 1658. I 2, n. XIII {Coll. /urn," Nov. 30, 1894. «• Hi " Tro-
P. F,, n. 129). dita ab antiquii," Sept. 14, 1912,
«7 Benedict XIV. " (Firman dij," III-V.
Nov. 6, 1744. 5 9 8» S. C P. F.. Aug. 18, 1893
*»"Etsi Fastvralu," Ma? 16, (Coll., n. 1846).
<
jle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 867 245
ARTICLE III
*
TIME AND PLACE FOR DISTRIBUTING HOLY COMMUNION
Tim*
Can. 867
§ 1. Omnibus dicbus licet sanctissimam Euchari-
stiam distribuere.
§ 2. Fcria tamcn VI maioris hcbdomadac solum licet
sacrum Viaticum ad infirmos deferre.
§ 3. In Sabbato Sancto sacra communio nequit fi-
delibus ministrari nisi inter Missarum sollcmnia vel
continuo ac statim ab iis expletis.
§ 4. Sacra communio iis tantum horis distribuatur,
quibus Missae sacrificium offerri potest, nisi aliud ra-
tionabilis causa suadeat.
§ 5. Sacrum tamen Viaticum quacunque diei aut
noctis hora ministrari potest.
E
§ I. The Holy Euchanist may be distributed every day
of the year.
§ 2. Rut on Good Friday only the Viaticum may be ad-
ministered to the sick.
§ 3. On Holy Saturday Holy Communion may be dis-
tributed only at the (solemn) Mass or immediately there-
after.
§ 4. Holy Communion may be distributed only at hours
when Mass may be said, unless good reasons advise a
deviation from this rule.
§ 5. But the Holy Viaticum may be administered at any
hour of the day or night.
Although, says a well-known decree of the S. C. Con-
cilii, frequent and even daily Communion has been recom-
mended by the Holy Fathers, yet the Church has never
{ %r\nnl*> Original from
yUOO^IC UNIVERSITY OF WISCONSIN
246 ECCLESIASTICAL THINGS
St
appointed certain days of the week or month on which
the faithful should abstain from, or receive, Holy Com-
munion. Much less is there any divine precept enjoining
daily Communion.80 If the Viaticum is brought publicly
to the sick on Good Friday the psalms must be recited in
a very low voice, but the color of the stole is white.
When it is brought quasi-privately, the people must be
dismissed from church without the usual blessing, be-
cause the Blessed Sacrament should not be kept in the
church 8I but in the sepulchre.
It is remarkable that Communion mav now be dis-
tributed immediately after the conventual or solemn
Mass " on Holy Saturday. But the phrase " continuo at
statim " must be carefully noted, because it indicates that
before the Mass, or after the priest has left the altar, no
distribution of Holy Communion is allowed. The faith-
ful who receive Holy Communion on that day fulfill the
paschal precept.
The time for receiving Holy Communion is during
Mass, and the faithful should be exhorted to receive it
when assisting at the Holy Sacrifice. However, if they
ask for it outside of Mass, they should not be refused,
because they are supposed to ask reasonably.98 But Holy
Communion is not to be distributed " before the time for
Mass, as stated under can. 821, nor after that time, es-
pecially not until sunset, because abuses might easily
creep in.
bo Feb. :a, 1679 (Coll. P. F., n. f.) simply tays: et etiam erpleta
119). Missa. Our text has two additions.
MS. Rit. C, May 15, 1745 (Dec. oa Gaiparri. £># SS. Euck., n.
Auth.. n. 3383). 1084.
MS. Rit. C, March 32, 1806 MS. Rit. C, Sept. 7, 18 16, ad
(Dec. Auth., n. 3561). did not yet aj (Dec. Auth.. n. 2S7*) ; June II,
allow that, but the decree of April 1904, ad III (Anal. Eccl., XII, 334).
j8, 1914, *d II (A. Ap. S., VI, 196
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 868-869 247
;-■
Can. 868
Sacerdoti cclcbranti non licet Eucharistiam intra
Missam distribuere fidelibus adeo distantibus ut ipse
altare e conspectu amittat.
A priest saying Mass is not allowed to distribute Holy
Communion during Mass to persons who are so far from
the altar that he himself would lose sight of the altar.
The principle underlying this canon is that the priest
must never lose sight of the altar for the reason that
Holy Communion is an integral part of the Mass and
some particles may remain unconsumed until the last
ablution. Therefore the S. Congregation has decided
more than once that a celebrating priest is not allowed to
bring Communion during Mass to sick persons or others
who are in a different though an adjoining room from
the oratory where he says Mass.98 This applies to pious
institutions and private oratories. If all the particles
have been distributed but some fragments remain on the
paten, these should be placed in the pyxis which is kept
in the tabernacle if no other priest says Mass in the same
chapel."
A practical conclusion from this law is that the Com-
munion rails should be made so that the altar can be
seen from every corner.
■ i
Place
a
Can. 869
01
Sacra communio distribui potest ubicunque Missam
cclebrare licet, etxam in oratorio private nisi loci Or-
a
BBS. Kit. C Dec. iq. 1820; Flo- »o S. Rit. C, March i860 (n.
rentina, ad 1 (Dec, Auth., n. 2672), 3099).
Dec. 7, 1844 <n- J883); M»y n,
1878 (n. 3448).
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
Q
248 ECCLESIASTICAL THINGS
dinarius, iustis de causis, in casibus particularibus id
prohibuerit
Holy Communion may be distributed wherever Mass
may be said, even in private oratories, unless the local
Ordinary should for just reasons forbid it in some par-
ticular case.
This text is based on a general decree of the Congre-
gation of Rites permitting the distribution of Holy Com-
munion to all the faithful who assist at Mass in a private
Oratory. But the decree expressly says : with due regard
to the rights of the pastor,01 and consequently these should
never be curtailed or jeopardized, otherwise the Ordinary
may forbid the distribution of Holy Communion.
0: S. Rit. C, May 8, 1907 {Anal. Ecei., t. 15. v>s )■
G I Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
■
Q
TITLE IV
the sacrament of penance
Can. 870
In poenitcntiae sacramento, per iudicialem absolu-
tionem a legitimo ministro impertitam, rideli rite
disposito remittuntur peccata post baptismum com-
missa.
In the Sacrament of Penance, through a judicial abso-
lution imparted by a legitimate minister, the sins com-
mitted after baptism are forgiven to every faithful Catho-
lic who is properly disposed.
This is the true concept of the Sacrament of Penance
based on Scripture and tradition. Penance is one of the
seven Sacraments instituted by Christ. It follows Bap-
tism and is therefore sometimes called the " second plank
of salvation " or " laborious Baptism." It is effected by
the judicial absolution of the priest, but not without the
formal cooperation of the penitent, who must be prop-
erly disposed by having cither contrition or attrition, as
the theologians 5 say.
What most concerns the canonist is the judicial
absolution.2 The power of the keys, i.e., to forgive and
retain sins, is exercised by pronouncing the sentence of
forgiveness or retention. This sentence is rendered by
the judges of the society founded by Christ. The essence
1 Cfr. Falrmeri, D< Poenilenlia, a Trid., scss. 14, c; 1-6; can. 1—4*
Romae 1879: Pohle-Prfuas, Th* 9, 12, 15, de Poenit.
Saertmtnts, Vol. Ill, 3rd ed., 1919.
249
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
250 ECCLESIASTICAL THINGS
of the judiciary power consists in authority to impose an
obligation or to assert a right or law with regard to one
who is subject to authority and a debtor to the law in a
matter that falls under that law and authority. The peni-
tent who accuses himself of guilt towards God, has con-
tracted a twofold debt: the reatus culpae and the reatus
pocnae: guilt and punishment, and God alone can absolve
him from either. He does not do so directly, but through
certain human agents, who act by His authority and com-
•mission. These are true judges, and their power is a
truly judiciary power which does not merely announce
forgiveness, like a preacher of penance, but pronounces
sentence of justification which is ratified by God.3
I Trid., scss. 6, c. 14, can. 29, It iustif.
oogle
fcrt|.rt Original from
UNIVERSITY OF WISCONSIN
■
CHAPTER I
the minister of penance
Can. 871
Minister huius sacramenti est solus sacerdos.
Can. 872
Praeter potestatem ordinis, ad validam pcccatorum
absolutionem requiritur in ministro potestas iuris-
dictionis, sive ordinaria sive delegata, in poenitentem.
The sole minister of this sacrament is the priest, who,
to absolve validly, needs not only the power of order,
but also the power of jurisdiction, either ordinary or dele-
gated, over the penitent.
This again is a dogmatic truth, based on sources to
which it is not necessary here to refer. Early docu-
ments amply prove that it was the presbytert, both of the
higher, i.e., episcopal and the lower, i.e., priestly rank,
who exercised the power of the keys.1 Peter Abelard
wrongly limited the exercise of this power to the
Apostles,2 whereas Wiclif, Hus, and Luther unduly ex-
tended it to all Christians, including laymen.8 The
Church requires the priestly character as the fundamental
condition or aptitude because of the hieratic element
which is intimately connected with the jurisdictional
1 Cfr Trid., ku. 14, c. i, de < Denting er, n. 321). Pairaicri, 1. c,
poenit.; mm. 33, c. 15, de ref. p. 161 ff.
2 Prop. dam. ab Innoe. II., n. 12 8 Denzinger, nn. 565, 566, 637.
251
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
252 ECCLESIASTICAL THINGS
St
power. But since the exercise of this power is really a
judiciary act, which pre-supposes jurisdiction, jurisdiction
also is essentially required. The Code almost exclusively
employs the term, jurisdiction,4 approbatio being used, as
it were, only by the way. Besides the term jurisdiction
there occurs the noun licentia*
i. Jurisdiction is here understood as the power of
hearing confession or imparting judicial absolution
validly, in the act of sacramental confession. This may,
as the text says, like any other jurisdiction, be twofold,
vie, ordinary or delegated. It is ordinary if attached to
the office one holds; delegated if given to the person by
virtue of a special commission. It may be delegated
either by a local Ordinary (can. 874, § i), and in that case
is limited to the territory of that Ordinary (can. 875, 5 1)
or by an exempt religious superior, and in that case is re-
stricted to the person or subjects of the religious su-
perior.*
2. Licentia, license or permission, is the formal ap-
proval required for licitly exercising the office of con-
fessor. It is not necessarily the result of a doctrinal ex-
amination,7 but may be a merely moral provision or con-
cession made to render the act conformable to the
requisites of obedience or subordination. And in this
sense it may be identified with the former approbatio,
inasmuch as this was considered to be an authentic judg-
ment as to a priest's fitness for hearing confessions. The
Code only mentions jurisdiction for validly, and license
for licitly hearing confessions, but adds that the jurisdic-
tion must concern the penitent, in other words, the con-
« Cfr. Vol. II, p. 170 ff-i o( this what we read in Schmitt, S. J., S"ii*>
Commentary. flementum ad Sold in. 1018. p. sj:
• Cfr. can. 881 f. ; approbates, u " iurisdtctio rero deUgata est tan-
an adjective. turn territoruilis."
• Not quite accurate, therefore, it 1 Cfr. can. 877, 9 V
oogle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 872 253
fessor must have power over the penitent, who therefore
becomes, or is supposed to be, his subject. This power,
as stated before, is acquired by reason of the office or by
special commission. Thus according to can. 875, § 1, an
exempt religious superior of the clerical order grants to
the priests of his organization delegated jurisdiction over
the professed members, novices and others mentioned in
can. 514, § 1. The Bishop enjoys ordinary jurisdiction
for his territory and may delegate priests, secular as well
as religious, for hearing confessions in his diocese.
Here it may be proper to discuss the controversy con-
cerning the exemption which has formed a favorite topic
in theological circles since the time of Martin IV (1281-
1285)." Boniface VIII endeavored to settle the dispute
between the Ordinaries and the mendicant friars. His
Decretal 9 says that even if the Ordinary has given any
one permission to choose his confessor, the latter can not
absolve from cases especially reserved by the Ordinary.
But since the exempt regulars contended that they ob-
tained jurisdiction immediately from the Pope through
their superiors, for which contention they were able to
quote a Constitution of Martin IV, the dispute was by no
means ended. The Council of Trent finally enacted that
no priest, whether secular or regular, could absolve any
one except he had first been examined and approved by
the Ordinary. Exception was made for those who held a
parish benefice,10 because no one could be promoted to
such a benefice without an examination. The rule
thenceforth was that secular as well as regular priests,
who wished to hear confessions of secular persons
or nuns not subject to regular prelates, were obliged
to have the " approbation " of the Ordinary of
BCfr. Vol III, p. 34 *-, of thi» »C. a, 6', V.
Commentary. 10 Trid., sea*. 33, c. 15, dc rtf.
jle
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
254 ECCLESIASTICAL THINGS
the diocese.11 Notwithstanding these plain rules, it
happened in Spain that persons sticking too closely
to the " Cruciata," obtained special indults for
choosing confessors not approved by the local Ordinaries.
This abuse was done away with completely by Benedict
XIV, following in the footsteps of his predecessors.1*
He, as well as Gregory XV and Clement X,18 declared
that a religious, even though approved for hearing con-
fessions in his diocese by the local Ordinary, can not
validly absolve in a strange diocese a penitent coming
from the diocese for which he was approved. Some
regulars, besides, claimed that a religious presented to the
bishop but rejected in the examination, could validly hear
the confessions of seculars and absolve from cases re-
served to the bishop. This proposition was proscribed.1*
Parish priests, i.e., priests who held a parish benefice,
maintained that they could choose for their confessor any
priest, even though he was not approved by the Ordinary.
This proposition, too, was condemned.1* Later it was
asked of the S. Congregation whether a pastor, say of the
diocese of St. Joseph, called in by a pastor of the diocese
of Kansas City, may validly hear confessions without
special jurisdiction from the bishop of Kansas City. The
answer was: Yes, of his own subjects but not of others
(affirmative quoad subditos, negative quoad alios).19
This was the status quaestionis when the Code went into
effect. These preliminary explanations will help the
reader to understand the following canons.
'■-.
II S. C. C.| June 7. »755 (Richtcr, Sept. 24. 1665 (Denringer, n. 984).
Trid., p. 205, *«>• '. 4)- ,B P*op. dam. ofr AUx, Vlt, n.
It " Apostolic* indutta," Aug. 5, 16, Sept. 24, 1665 (Deneinger, n.
1744. 987)-
IS Gregory XV. " Tnscrutabiti." 1* S. C. C. Nov. 19, 1707 (Richter.
Feh. 5, 1622; CIcmeot X, " Su- Trid., p. 206. a. 3); Benedict XIV,
perna," June ii. 1670, f 4. Instil., 86, n. 7.
14 Prop dam. ab Alex. Vll. n. 13.
ogle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 873 255
a
a
ordinary jurisdiction
Can. 873
§ 1. Ordinaria iurisdictione ad confessioncs excipi-
endas pro universa Ecclcsia, practer Romanum Ponti-
ficem, potiuntur S. R. E. Cardinales; pro suo quisque
territorio Ordinarius loci, et parochus aliique qui loco
parochi sunt.
§ 2. Hac eadem iurisdictione gaudent etiam canon-
icus poenitentiarius ecclesiae quoque collegiatae, ad
norm am can. 40 z, § 1, et Superiores religiosi exempti
pro suis subditis, ad normam constitutionum.
§ 3. Haec iurisdictio cessat arnissione officii, ad nor-
mam can. 183, § i, et, post sententiam condemnatoriam
vel dedaratoriam, excommunicatione, suspensione ab
officio, interdicto.
I 1. Besides the Roman Pontiff, the Cardinals possess
ordinary jurisdiction for hearing confessions in the whole
Church; in the various dioceses the local Ordinaries, in
their own districts the pastors, and those who take the
place of pastors enjoy jurisdiction.
§ 2. The Penitentiary Canons of cathedral and col-
legiate Churches (can. 401, § 1) have the same jurisdic-
tion ; also exempt religious superiors with regard to their
subjects, according to the constitutions of the respective
institute.
1. The Sovereign Pontiff has the plenitude of the
power of jurisdiction in and over the whole Church, and
hence may hear confessions validly and licitly everywhere
without notifying the local Ordinaries.
2. There can no longer be any doubt ,7 that the
IT Formerly, unless they vrtreUgati a latere, cardinal! did nol, at
Itut by law, enjoy this pririlege.
oogle
, ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
256 ECCLESIASTICAL THINGS
St
Cardinals of the Holy Roman Church, too, may per-
sonally hear confessions everywhere; but theirs is a
strictly personal privilege ,8 that can not be communi-
cated to others. Can. 239, § I, i° says that Cardinals
may validly and licitly hear confessions throughout the
whole world, of secular as well as religious persons, and
absolve them from all sins and censures except those
most specially reserved to the Apostolic See and those
attached to the revealing of the secret of confession,
called " secret of the Holy Office." 1U From the general
tenor of this canon it must be concluded that Cardinals
may also absolve from cases reserved to, and by, the
Ordinary.
3. The Ordinary enjoys ordinary jurisdiction urithin his
territory, to which he is, as a rule, restricted. However,
he may validly absolve his own subjects everywhere
(ubique terrarutn; can. 881, § 2).20
4. The same law applies to pastors and those who take
their places. Pastors, therefore, enjoy ordinary jurisdic-
tion in the court of conscience, for hearing confessions
within the boundaries of their parishes, and for their
own subjects also outside their parish limits, nay even
outside the diocese. This is in accordance with the Coun-
cil of Trent and certain later decisions of the Apostolic
See."
What about our American parish priests? We cannot
■
18 The S. C. Con*., April 2$, 1918 ' placed under the «*ame obligation
{.A. Ap. S., X, 190) calls it a per- are bound by an oath.
tcnal privilege, like those of Ordi- 20 Cfr. Benedict XIV. " Apoitoli-
mrics, can. ,149 Such personal cum ministerium," May 30. 1753. S
privileged cannot be communicated zm.
per modum facullalum; cfr. S. 21 Trid., *e$s. .23, c. 15. de ref.;
Poenit., July 18, 1919 {A. Ap. S., Benedict XIV. Const, eit.; S. C. C,
XI. 33*). Nov. I©, Dec. 3. 1707 'Richter.
lfl The secrehtm S. Officii is a spc- Trid., p. 206, n. 3); Benedict XIV,
cial secret to which all officials of Instxt., 66, n. 7; cfr. can. B81, I 2.
the Holv Office and other persons
"-.
jle
f ■ j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 873 257
St
depart from what we have said in Vol. II of this Com-
mentary on their legal status. They are and must be
considered parochi, no matter whether they are remov-
able or irremovable, because this quality is now accidental
only, and not essential, to a pastor, as canon 454, § 2
clearly states. Consequently, by virtue of their appoint-
ment they obtain ordinary jurisdiction for hearing con-
fessions and from the moment of taking possession of
their parish,22 may exercise this ordinary jurisdiction.
Who are a pastor's subjects? Those who have their
domicile or quasi-domicile within the limits of his parish.
The confessions of these, then, he may validly and licitly
hear everywhere."
The question again arises concerning our linguistically
distinguished parishes. To these, we believe, the Con-
stitution of Benedict XIV, " dpostolicutn tninisteriutn,"
which was issued for England in 1753, may be applied.
§ 2 of this Constitution says that secular as well as
regular priests may hear confessions in the whole city
or town without discrimination. This, we say, is similar
to our case, and therefore, for instance, the pastor of a
German-speaking congregation may validly hear the con-
fessions of any of his subjects in the same town or city
by virtue of his appointment and also the confessions
of those who come to him from another parish, or even
from another diocese. Besides, with due reverence to
the pastor of another parish,24 or with his permission,
he may also licitly hear confessions in the church of
that parish. Lastly, § 2 of can. 881 may be applied also
to pastors, who thus may hear their own subjects every-
where.
11 Can. 461; can. M43- «: " debitis lamen officii* cum ip-
2S Sec Can. 811, fi 1. m*mi rector* antra perjolutis."
24 Benedict XIV, Const, cil., I
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
258 ECCLESIASTICAL THINGS
5. " Atiique qui loco parochi sunt." Who are these
"others who take the place of a pastor"? They are the
oeconomi and coadiutores who act as substitutes for
disabled or absent pastors, as described in can. 473-475.
Our so-called assistants or curates cannot be numbered
among this class and therefore do not enjoy ordinary
jurisdiction.
6. The Canonicus Poenitentiarius can absolve all,
even strangers in the diocese, from sins and cen-
sures reserved to the bishop; he may absolve the
subjects of his diocese outside his own territory. This
power is granted to the canon penitentiary not only
of the cathedral but also of a collegiate church." Inno-
cent III had ordained 2e that the bishops should choose
helpers in the discharge of their pastoral office, especially
for hearing confessions in cathedral and conventual
churches. From this it follows that by their very appoint-
ment these canons enjoy ordinary jurisdiction according
to what has been stated above.
7. Exempt religious superiors, finally, enjoy ordinary
jurisdiction over their own subjects, according to the
form of their constitutions. It was always understood
that exempt religious superiors obtained their jurisdiction
over their own subjects from the Sovereign Pontiff.
This follows from the very notion of exemption.
Exempt superiors are the superiors of all religious in-
stitutes which are exempt either by reason of their in-
stitution or by a special indult. As can. 875. § 2 clearly
states, the privilege applies only to exempt institutes of
clerics.
2»Can. 401. S 1. Canon Poenh. (S. C. RE. et RR..
iflC. 15. X, I, 31. The diocesan Sept. 19. 1846; Bitrarri, Collectanea,
or collegiate chapter has no rifht p. 548 f.>.
to oppote the appointment of a
Go >gle
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 873 259
o
The superiors here mentioned are those who are called
•moiores, hence the generals or provincials of exempt or-
ders or congregations and their vicars, who hold
a position similar to the provincial.-7 The text adds : ad
normam constitutionum, in accord with the respective con-
stitutions.
The abbots38 of single and autonomous monasteries
are real superiors in the sense of our text ; such also
are the conventual priors39 of independent monasteries
or convents, whereas the priores claustrales cannot claim
ordinary jurisdiction, unless a special clause in the con-
stitutions either denies that power to conventual priors or
gives it to cloistral priors. Attention may here be drawn
to can. 518, § 2, concerning the hearing of confessions of
subjects.80
§ 3. Ordinary jurisdiction for hearing confession
ceases when the office to which it is attached, is lost, as
laid down in can. 183, and after a declaratory or con-
demnatory sentence of excommunication, suspension from
office or interdict. Ordinary jurisdiction also ceases at
the moment one's resignation is accepted, when privation
or removal is duly intimated, when the term of office ex-
pires,31 and after one has been declared to have incurred,
or has been condemned to, excommunication," or per-
sonal interdict,81 or suspension from office.8*
27 Can. 488. n. 8. June 3, 1864 (Bizurri, /. c, p.
28 The Abbot President of the 7«) ; they are real conventual prior*
Swiss- American Congregation, ac- and therefore tuptriores maiorts.
cording to its Constitution, may hc*r »0 Clement VIII, " Sanctis simus,"
the confessions of alt its members, May 36, 1593; S. C. C„ Sept 21,
otherwise the Abbot President 1624 (BtzzarH, /. c, p. 246).
would not he entitled to do so, nor 11 Can. 183.
is the Abbot Primate. S3 Can. _'-6i , 5 3.
» Concerning the Priors of the " Can. 3275, n. a.
Aufustinians sec S. C. EE. tt RR-. I* Can. 2284.
oogle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
260 ECCLESIASTICAL THINGS
del£gated jurisdiction
Can. 874
§ 1. Iurisdictonem delegatam ad recipiendas con-
fessioncs quorumJibet sive saecularium sivc religioso-
rum confert sacerdotibus turn saecularibus turn re-
ligiosis etiam cxemptis Ordinarius loci in quo
confession cs excipiuntur ; saccrdotes autcm religiosi
cadem ne utantur sine licentia saltern praesumpta sui
Superioris, firmo tamen praescripto can. 519.
§ 2. Locorum Ordinarii iurisdictionem ad audiendas
confessiones habitualiter ne concedant religiosis qui
a proprio Superior e non praesentantur ; iis vero qui
a proprio Superiore praesentantur, sine gravi causa
earn ne denegent, firmo tamen praescripto can. 877.
§ 1. Delegated jurisdiction is conferred by the local
Ordinary in whose diocese the confessions are to be
heard, on priests, secular as well as religious, even ex-
empt religious, for hearing confessions of both secular
and religious persons ; but priests of religious institutes,
though thus endowed with delegated jurisdiction, in addi-
tion thereto need the permission of their superiors, in or-
der to absolve licitly, with due regard always to can. 519.
Here the recipients of delegated jurisdiction are men-
tioned as far as certain classes of penitents are concerned,
namely:
(a) Secular persons, i.e., such as have not entered the
religious state by talcing the three vows ; hence also
members of societies who live in common without vows; aB
secular clergymen, even priests of any clerical rank of the
secular order."
38 Cfr. can. 673. J V Feb. 5, 162?, f 1: Clement X. "Su-
ae Gregory XV. " Inscrutabili," perno," June XI, 1670, I 1.
.'Ie
k ,|rt Original from
UNIVERSITY OF WISCONSIN
CANON 874 261
(b) Religious of the male sex, no matter whether ex-
empt or not. All these may be validly and licitly absolved
by any priest who has been endowed with delegated juris-
diction by the Ordinary.
Here a doubt may occur as to pastors, who have ordi-
nary power, but are not specially mentioned in can. 519.
This doubt seems unfounded because in said canon ap-
proval only is mentioned, and pastors are certainly sup-
posed to be approved by the Ordinary, and, besides, the
validity could certainly not be doubted.
The ministers who receive jurisdiction from the Ordi-
nary are priests, secular as well as religious, including
those who are exempt. Concerning the latter, especially
the mendicants, there was a controversy, which is now de-
cided. Religious, therefore, no matter of what order,
congregation, institute or society, even though otherwise
exempt from the law, need delegated jurisdiction to hear
the confessions of secular persons, including priests.87 No
exception is made for any kind of regulars or religious,
even at the time of missions or on the occasion of a jubi-
lee — unless, of course, the Bull of the Jubilee decided dif-
ferently.88 All must have delegated jurisdiction from the
local Ordinary.
Now the local Ordinary is the one in whose diocese the
confessions are heard. Hence it is not sufficient that a
religious obtains what we call the faculties for the diocese
in which the religious house is located, to validly hear
ST Cfr. the Constitutions quoted in heard by regulars at the time of a
the precceding note, and S. C. EE. jubilee were invalid, and the peni-
ei RR.. Zagabricn., Dec. 14, 167a tent* who had a doubt about the
(Bixzarri, Collectanta, p. J71 ff.). ralidity of their confession, or
Can. 514, 9 1 is. of court*, to be knew of the lack of jurisdiction of
consulted, as seen under can. 87s. • such confessors, had to repeat the
1. confession, in order to gain the in-
18 S. C. C, Dec. 4, 1683 (Ricbter, dulgence; those in good faith were
Trid. p. ao6, n. a); the confessions not to be disturbed.
..-.
, ,1,., Original fro m
- UNIVERSITY OF WISCONSIN
igle
262 ECCLESIASTICAL THINGS
the confessions of secular persons in another diocese.
These faculties do not overlap. Hence if a religious
whose house is located in the diocese of St. Joseph wishes
to hear confessions in any part of the Des Moines diocese,
he has to obtain the respective faculty from the Ordinary
of Des Moines. This jurisdiction is needed even in the
case of a penitent who has an apostolic indult permitting
him to choose any confessor he pleases. SB The same
holds good concerning any secular priest who needs dele-
gated jurisdiction.
In connection with this the question may arise: What
about the pastors of a diocese, who according to can.
873, § 1, enjoy ordinary jurisdiction for their parishes,
if they wish to hear confessions in another parish of the
same or another diocese? Their jurisdiction as pastors
is certainly limited to their own territory (pro suo quisque
territorio). Consequently, in order to hear confessions
validly outside their parishes they need delegated juris-
diction from the Ordinary of the diocese in which they
wish to hear confessions, unless there is question of their
own subjects, whose confessions they may hear any-
where.40
Another question : May the pastor grant delegated juris-
diction to another priest, secular or religious, to hear con-
fessions within his district, without asking the local Ordi-
nary? It would seem that canon 199, § I, should be ap-
plied here, which says that those who enjoy ordinary
jurisdiction may delegate it to others. But our text as
well as certain decisions of the Holy See " plainly state
that pastors cannot grant to other priests delegated juris-
diction to hear confessions in their parishes.
88 Benedict XIV, "Apostolic* mi- 41 S. C. C, Not. 19, Dec. 3. 1707
Julia," Aug. 5, 1744. SB 3. 5- (Richter, p. ao6. n. j) : Benedict
40 Can. 88i, | 2. XIV, Inttitut., 86, n. VII. Hence
Go >gle
% ,] , Original from
UNIVERSITY OF WISCONSIN
CANON 874 263
St
The last clause of § I, says that religious need at least
the presumed permission of their respective superiors.
Religious, before being presented to the Ordinary for ap-
proval, are usually examined as to their qualification for
that office by their superiors or a board of professors.4*
If a religious thus examined is approved by the Ordinary
and continues to hear confessions without objection on the
part of his superior, the permission may be presumed,
even though it has not been asked for every single in-
stance. Thus, also, permission may be presumed if one
is sent to help another on a Sunday.
Note that this permission in nowise affects the validity
of confession as long as the jurisdiction delegated by the
Ordinary is not withdrawn. The Dominicans have a
statute which says that their superiors should suspend
from hearing confessions any religious found unfit for
that office. If such a religious has obtained faculties
from the Ordinary and continues to hear confessions,
are the latter valid? They are, even though the abso-
lution is given by a suspended religious against the will of
his superiors. Such a religious, of course, acts illicitly,
but the absolution he gives is valid because of the juris-
diction received from the diocesan Ordinary.*8
§ 2 is the logical consequence of what has thus far been
stated. The local Ordinaries shall not grant jurisdiction
to hear confessions habitually to religious who are not
presented by their own superiors. On the other hand they
shall not, except for grave reasons, refuse faculties to
such as are presented by their superiors, with due regard,
however, to canon 877.
the pastor cannot delegate bia as- *9 S. C. EE. .-; RR., March a,
• is tan t a or curates; such delegation 1866 (Bizzarri, /. c, p. 755). This
must be given by the Ordinary. religious incurred no irregularity,
43 This is the practice in every ibid.
well-regulated community; Bizzarri,
Collectanea, p. 753.
>gle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
N
■
264 ECCLESIASTICAL THINGS
This is a reminiscence of the medieval quarrel between
the secular and the regular clergy, especially the Mendi-
cants, which Boniface VIII and John XXII endeavored
to settle." The term presented, occurring in their
Decretals, meant that the general or the provincial should
present themselves personally or by deputy before the
prelates (i.e., Ordinaries, in order to obtain their licentia,
gratia et beneplacitum, and then choose a sufficient num-
ber from among their members as confessors, who again
must be presented to said Ordinaries for the "licentia,
gratia et beneplacitnm/' If the latter was refused, the
Pope gave the power of hearing confessions "ex pleni-
tudine potestatis." It is not difficult to perceive that the
Ordinaries and pastors were not satisfied with this solu-
tion. Hence the Council of Trent *B and later papal Con-
stitutions 48 demanded faculties properly so-called, but
at the same time warned the bishops against unreason-
able refusal. Now-a-days a recommendation from the
religious superior may suffice, provided can. 877 is com-
plied with. However, if the bishop insists upon personal
presentation, he does not exceed the limits of his power.*7
A serious reason for refusing faculties would be lack
of knowledge, moral deficiency, or want of pastoral pru-
dence.
** C a. X, Clem. Ill, 7 (Boniface i6aa; Clement X, " Superna," 1670;
VIII. "Dudnm"); c. un. Extrav. Benedict XIV. " Apojtotiea indmila."
Corom., II, 1 (John XXII. " Fr*- 1744 (explaining the extent of the
quentrt") c a, Extrav Comm., * Cruciata ") ; S. C. EE. tt RR.,
Ill, 6 (Boniface VIII, " Super April u. 1608.
cothedram"). 47 S. C. C. June 4. »75S (Rich-
«o Trid., geu. 23, c. 15. tcr, Trid., p. ao6, a. 4).
«o Gregory XV, " Intcntobiii,"
}}C
Original from
UNIVERSITY OF WISCONSIN
CANON 875 265
confessors of exempt religious
Can. 875
§ 1. In religione clericali exempta ad recipiendas
confcssioncs professorum, nuvitiorum aliorumve dc
quibus in can. 524, § i, jurisdictionem delegatam con-
fert quoque proprius corundcm Superior, ad normam
constitutionum ; cui fas eat earn concedere etiam
•accrdotibus c clero saeculari aut alius religionis.
§ a. In religione laical i exempta, Superior proponit
confessarium, qui tamen iurisdictionem obtinere debet
ab Ordinario loci, in quo religiosa domus reperitur.
3!
o>
In exempt religious institutes of clerics delegated juris-
diction for hearing the confessions of the professed
members, novices, and other persons mentioned in can.
514, § 1, may be given by their own superior accord-
ing to the constitutions. This same Superior may also
grant such jurisdiction to secular priests or priests of an-
other religious institute.
The Council of Trent ** did not change anything con-
cerning the right of exempt religious to assign their own
confessors. This right is part and parcel of the juridical
institute of exemption. It was fully acknowledged by
many constitutions and decisions of the Holy See.49 But
a dispute arose on the question whether, for instance, a
Jesuit could validly absolve a Benedictine without facul-
ties from the local Ordinary.60 Our text clearly says
that all that is needed is delegated jurisdiction from the
exempt religious superior. Hence a religious of another
religious institute, whether exempt or not, nay, even a
4« Sew. a$, c is. dt ref. perna," June ai, 1670; S. C C.t
« Clement VIII, " Sanctisrimus," Sept. 21, 1624 (Bizzarri, Collectanea,
May 23, 1593; " Romani Ptmtifieis." p. 246 f.1.
Nov. 33, 1599; Clement X, " Su- so Cfr. Bizzarri, /. c, p. 723, note.
§le
% ,1,., Original from
UNIVERSITY OF WISCONSIN
266 ECCLESIASTICAL THINGS
St
a
secular priest, may validly absolve a religious whose ex-
empt religious superior has granted to that religious or
secular priest delegated jurisdiction. Therefore no juris-
diction from the local Ordinary is required. By "pro-
prius eorundem superior" is to be understood not
only the general or provincial, but also the conventual
prior, unless the constitutions of the resp. institute rule
otherwise.01 What has been said under can. 514, § 1, is,
we believe, amply sufficient.82
But this rule applies only to exempt clerical institutes,
because § 2 rules that in exempt lay institutes the su-
perior proposes the confessor, who must obtain jurisdic-
tion — not only permission — from the Ordinary in whose
diocese the religious house is located. This is a new
canon, although quite old in effect, according to the gen-
eral principle: Nemo dat quod non habet, and superiors
of lay institutes, although exempt, never, at least de
iure, enjoyed jurisdiction in matters of confession. We
may add that the superior has a strict right to present
whom he pleases, and consequently the Ordinary must
give the faculties if the presented candidate is fit.
confessors of female religious
Can. 876
■
§ i. Revocata qualibet contra da particulari lege seu
privilegio, sacerdotes turn saeculares turn religiosi,
cuiusvis gradus aut officii, ad confessiones quarum-
cunque religiosarum ac novitiarum valide et licite
recipiendas peculiari iurisdictione indigent, salvo prae-
scripto can. 239, § 1, n. I, 522, 523.
D
ii S. C. EE. et RR., June j, M Cfr. Vol. Ill of this Coramen-
(864 (BUzarri, /. C, p. 720 ff.). t.iry. pp. 141 f.
>Ie
I , Original from
UNIVERSITY OF WISCONSIN
CANON 876 267
§ 2. Hanc iurisdictionem confert loci Ordinarius, ubi
religiosarum domus sita est, ad normam can. 525.
§ 1. Secular as well as religious priests, of whatever
rank or office, need a special jurisdiction for validly and
licitly hearing the confessions of female religious and
-
their novices. Only the Cardinals are exempt from this
general law. Can. 522 and 523 mention some modifica-
tions of this general law which no contrary particular law
or privilege can nullify or alter.
§ 2. This jurisdiction is granted by the Ordinary in
whose diocese the religious house is located, according to
can. 525.
This law, though not explicitly enunciated by the Coun-
cil of Trent, was enacted by Gregory XV and reasserted
in later papal constitutions. Wherefore, though the sec-
ond order of nuns or moniales was subject to the jurisdic-
tion of the prelate regular of the first order, yet the con-
fessors appointed by that prelate were first to be examined
or at least found fit and then to be given a special appro-
bation.68 The Constitution of Clement X, " Super na,"
further ordains that a confessor assigned to one convent
of Sisters cannot validly hear confessions of the Sisters
of another convent and that extraordinary confessors ap-
pointed for single monasteries and for single extraor-
dinary occasions, need jurisdiction every time they are
appointed for hearing confessions. This is still the
rule" if the Ordinary, in granting faculties, does not ex-
plicitly state that the confessor appointed may hear the
confessions of all monialcs on oil occasions. \Yc
may also add that the said constitutions mention only
moniales, and therefore female religious with simple vows
BS Gregory XV. " Inserutobili," b* Ch. S. C. C, June 5, Aug. 2.
Feb. 5, 1622; Clement X, " Su- 1755 (Kichter, TriJ.. p. 413, n. 10).
ptrna," June at, 1670.
jle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
268 ECCLESIASTICAL THINGS
St
were not considered as falling under this law. The Code,
which is now everywhere law, simply says religiosarum ac
notritiarum, and consequently all religious who go by that
name, and all their novices, can validly confess only to a
priest endowed with special jurisdiction by the local
Ordinary. This ruling must not, however, be extended
to the other persons mentioned in can. 514, namely, pupils,
servants, sick persons, and guests. For hearing the con-
fessions of these no special jurisdiction is needed. The
Code further establishes that rank or office exempts no
priest from the duty of obtaining special jurisdiction.
Therefore, with the exception of Cardinals, no other dig-
nitaries may claim any privileges in this regard. Of
course, the local Ordinary who imparts the special juris-
diction may himself hear the confessions of Sisters.
This is also true of all others who go by the name of
Ordinary,55 such as prelates nullius, vicars general, ad-
ministrators, vicars and prefects Apostolic, but no pre-
late regular as such.
Lastly, attention is drawn to the beginning of the
canon : revocata qualibet contraria particulari lege seu
privilegio." Such a particular law existed in Spain,8*
in virtue of a brief of Urban VIII, but has now ceased.
We know of no privilege or special law granted after the
aforesaid Constitution of Gregory XV; if any has been
granted it is now void.
Concerning the exceptions mentioned in the present
canon, these refer to Sisters who for conscience sake wish
to go to a confessor approved by the Ordinary for hear-
ing women's confessions in a church or semipublic ora-
tory, and to sick Sisters, who may call in any confessor
approved for women."
SB Can. 198, 5 1. *TCan. 5« f-'. tee this Com-
bo Benedict XIV. D# Syn., Diotc, racntary. Vol. Ill, p. 16a f.
IX, 15, 9.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 876 269
What does " special jurisdiction" mean? Simply that
the Ordinary, in granting faculties, must expressly state :
" Etiatn ad confessiones audiendas religiosarum ac novi-
tiarum" Of course, if he appoints a priest as confessor
for Sisters, he is supposed to grant this special jurisdic-
tion, even though, by mistake, this is not expressly68
stated in the written or oral appointment.
§ 2 refers to can. 525, which says that the local Ordi-
nary appoints the confessors" ordinary as well as
extraordinary, for Sisters either immediately subject to
the Apostolic See or to the Ordinary himself. The prel-
ate regular may present a priest to the local Ordinary,
who then imparts to him jurisdiction for such nuns as are
subject to the regulars of the respective institute.
In the Irish Ecclesiastical Record of 1919 (March and
May, pp. 239 ff., pp. 414 ff . ; cfr also American Eccl.
Review, Oct. 1919, pp. 446 f.), there was a controversy
over the wording: " ad suae conscientiae tranquillitatem,"
" for the peace of her conscience." The question was :
Does this term imply a conditio sine qua non of valid con-
fession, or is it simply a clause which does not affect the
validity of confession? When we wrote on can. 522, we
held it was no condition in the proper sense of the word,
but a motive cause which prompted the legislator to do
away with unnecessary and conscience-torturing restric-
tions. Nor have we been converted to the contrary view
after having read the answers — we suppose by Dr.
Kinane — to " Inquirer."
Here are our reasons: If we solved that "ad" into a
dependent clause, this clause would read : ut consulatur
conscientiae tranquiUitati. Evidently here the motive is
51 Thii is not contrary to can. 60 Cfr. this Commentary, Vol. HI,
*79. I '. because the very appoint- p. 166 f.
meat a* such of a confessor includes
jurisdiction.
^ x/\.iL» Original from
>gle
UNIVERSITY OF WI5CGNSI
27o ECCLESIASTICAL THINGS
St
expressed by the ut finaiis. This, even if taken as a causa
finalis, not merely impulsiva, cannot be construed as a
conditio sine qua non. For, finis legis non cadit sub lege,
unless it is expressed in the law itself (see can. n).
Take, for instance, the well-known Constitution of Mar-
tin V, "Ad evitanda," where the finis legis is clearly ex-
pressed. A similar phrase ("ad consulendutn conscien-
ce") occurs in the decree "Ne tenure" art. VII.
Here the phrase is taken to mean a reason for admitting
the extraordinary form of contracting marriage, the non-
existence of which reason would invalidate a marriage in-
formally contracted. But it would need a strong proof
to read a conditio sine qua non even into this phrase,
notwithstanding the assertion of Vermeersch, quoted by
Kinane. Vermeersch speaks of a strict obligation, but
this may be only moral, as the preceding words seem to
insinuate. The main point in said decree is the im-
minent danger of death," which generally causes un-
rest or disturbance of mind which is made the conditio
in directo for contracting marriage before any priest and
two witnesses. Not even in that case would the
priest have been obliged to ask the person " in imminent
clanger of death " whether or not he or she wished to
appease his or her conscience. There, too, the " con-
sulendum conscientiae" is the impulsive or, if you
wish, the motive cause for this permission, but not the
conditio sine qua non, this being the imminent danger
of death. The Code (can. 1098) has happily omitted the
clause.
The preposition ad has several meanings in law texts.
It may signify nearness or approach to something, and
also a final cause, or even a condition, but as a rule it has
this latter meaning only when a contract or stipulation
is involved ; for instance, I promise you something ad ar-
Gw >gle
j , Original fro m
UNIVERSITY OF WISCONSIN
CANON 876 371
a
bitrium boni virit i. e„ indicis.** What is conscience?
" Consctentia nihil aliud est quam sensus animae cogno-
scentis bonum et malum et quid intrinsecus latens in
mente, quod probari non potest directo."59* Now the
conscience is something hidden in the mind, and cannot
easily be proved in the external court. Can this be made
a conditio sine qua non of the validity of confession?
We hardly believe. Yet in the opinion of the learned
professor who answered " Inquirer " in the /. E. R., this
would happen in our case. He reads three conditions
into can. 522: The religious must make her confession:
(r) for the peace of her conscience, (2) to a confessor
approved by the local Ordinary to hear the confessions of
women, (3) in a church or oratory, even a semipublic
oratory (March No., p. 239 f.). Then (May No., p.
418) he adds: "If it is stated that a certain act is in-
valid, when a number of conditions are fulfilled [we sup-
pose there is a printing mistake, otherwise the sentence
is unintelligible, therefore either in the first clause we
must read valid, or put a negative in the second, not ful-
filled], it is clearly implied that the defect of any of
these conditions involves the invalidity of the act."
Again: "The canon itself puts the three [conditions]
upon the same footing." The former statement is true
only if all the conditions are to be taken conjunctively,
but must be rejected if the conditions may be taken dis-
junctively (for instance, in can. 966), so that only the
one or the other condition is required for the validity of
an act. This is expressed by aut or vel.
But is it true that all three conditions are put upon the
same footing? And first is it really true that the phrase
ad conscicntiae quietem involves a condition ? As seen
unit Batbosa. Tractatus Kani. Die- 59b Barbosa, Axiomala, sa, /. c,
Hones Usu Fretjuentts, n. VI, ed. p. 34.
Lupd, 1660, p. 644.
;Ic
J ^ Original fro m
UNIVERSITY OF WISCONSIN
272 ECCLESIASTICAL THINGS
above it may signify a condition, but does so as a rule
only in onerous contracts. That it has this signification
in can. 522, needs stronger proofs than those so far ad-
vanced. But suppose it were a condition. In that case
the peace of conscience would be on a level with the other
two conditions, which certainly affect the validity of the
confession. Hence the religious herself would be made
co-arbiter of the validity of confession, or at least she
would administer the material for valid confession, not
only by her confession and contrition, but also by her
11 peace of conscience." This would be a new kind of
theology.
But let us not drift into ridicule. We believe that
Benedict XIV, in his Constitution, Pastoralis Curae, of
Aug. S, 1748, has solved the question quite clearly. There
amongst other things he mentions a case quite similar to
ours. Some nuns or sisters had asked for a special con-
fessor, not only in case of sickness or aversion against
the ordinary confessor, but for their greater peace of
mind and further progress on the way of the Lord:
" verum pro majori animi sui quiete at que ulteriori in
via Dei progressu." The prelates regular refused to
accommodate the sisters, but Benedict XIV leaned to
a more lenient and charitable treatment. He says :
" Persuasum enim habebimus, adeoque habemus, non
solum integrae Communitati, sed singulis etiam Moniali-
bus indulgendum esse in iis rebus, quae iuste et rationa-
biliter pctuntur, maximc quum Mac ad earum conscientiae
quiet em, et sccuritatem conferrc dignoscuntur. Neque
sane huiusmodi postulationes ant temere exaudiri, aut
sine causa, reiici debere censetnus; sed inquirendum in
-
pnmis esse dc qualitatibus turn Monialis, quae Confessa-
rium extra ordinem petit, turn Confcssarii, qui ab ea
requiritur; ut utriusque diligenter inspectis, deliberari
od by GoOgle
I , Original from
UNIVERSITY OF WISCONSIN
CANON 877 273
possit, an iUius votis annuendum sit, an non. Si enim
Monialis ex una parte nullum det adversae suspicioni
locum, ex altera veto confessarius non moio legitimam
Ordinarii op probationer, sed etiam commune probitatis
testimonium pro se habeat, nulla modo probare possumus
tarn firmum huiusmodi Praelatorum in renuendo propo-
situm; nee intelligimus, cur post Confessarium extraor-
dinarium integrae Communitati, iuxta legem Concilii
Tridentini, oblatum, nulla omnino Monialibus singulis
spes relinquatur obtinendi peculiarem Confessarium, cuius
consilio et opera, justis fortasse de causis, indigere se
arbitrentur." If any one wishes to read a strict con-
dition into this text, he may do so at his own pleasure, but
he will certainly contradict the wording of the text, as
well as the mind of the great Pontiff and canonist. The
meaning is clear: in order not to torture the consciences
of the poor sisters (" pro animi quiete," " ad earum con-
seientiae quietem et securitatem") the Pope gives them
liberal and generous permission to call in another con-
fessor, even if they have to apply to the S. Poenitentiaria.
This is the motive cause, but not a condition in the proper
sense of the word.
We finally draw attention to what we said in note 13,
p. 156, Vol. Ill, of this Commentary. There is no need
of inquiring into the reasons which prompted Pius X
to unfetter the consciences of religious. The view ad-
vocated in the /. E. R. would re-enthrall them and throw
a Jansenistic cloak about the generous law of the Code.
EXAMINATION OF CONFESSORS
Can. 877
§ 1. Turn locorum Ordinarii iurisdictionem, turn
Superiores rcligiosi iurisdictionem aut liccntiam audi-
endarum confeasionum ne concedant, nisi iis qui idonei
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
274 ECCLESIASTICAL THINGS
per examen reperti fuerint, nisi agatur de saccrdotc
cuius theologicam doctrinara aliunde compertam
habeant.
§ 2. Si post concessam iurisdictionem aut licentiam
pmdenter dubitent num probatus a se antea sacerdos
pergat adhuc idoneus esse, eum ad novum doctrinae
periculum adigant, etsi agatur de parocho aut canonico
poenitentiario.
D
§ i. The local Ordinaries shall not grant jurisdiction,
nor the religious Superior jurisdiction or license for hear-
ing confessions except to such as have been found fit
upon examination. An exception may be made in favor
of those whose theological competency is sufficiently
known from other sources.
All the papal constitutions and decisions insist upon
the fitness (idoneitas) of those who hear confessions.
This includes two qualities, intellectual and moral. The
intellectual consists in doctrinal knowledge, especially of
the respective portions of Moral Theology ao and Canon
Law, and familiarity with the language in which confes-
sions are to be heard.01 The moral qualities required are
prudence, probity of life, and real. Therefore the ex-
aminers should insist upon these qualities before they
render their verdict to the Ordinary.112
Our Code admits a noteworthy mitigation in favor of
those who are known for their theological learning.
Thus now-a-days a teacher of Moral Theology or a
synodal examiner may be exempted from this examina-
tion, also any one whose competency is well known to
the bishop.
-
«oS. C. P. F., April 13, 1807. this rule affecti the secular as well
n. XII (Coll., n. 69J). as the religious clergy.
01 S. C. I*. F., March 17, 1760; 02 Benedict XIV, " Apostolicum
Aug. », 1762 {Coll., rnn. 427, 444): ministerium," May 30, 175$. 5 8*
,00cVC UNIVERSITY OF WISCONSIN
CANON 878 275
§ 2. Should the Ordinary or religious Superior have a
prudent doubt as to whether a priest once approved con-
tinues to be fit, they may submit him to a new doctrinal
examination, no matter whether he be a pastor or canon
penitentiary.
Here stress is laid on knowledge, and consequently the
moral qualifications need not be re-examined because it
might reflect on the priest's character.83 The Ordinary
is entitled to subject any confessor to an examination,
even though he be a pastor or penitentiary canon. Also
one, whose competence was assumed may be submitted
to an examination after he has been given the faculties.
The religious Superior may submit a religious to a new
examination in case he has extra-sacramental knowledge
of his doctrinal deficiency on some point.
limited jurisdiction
Can. 878
§ 1. Iurisdictio delegata aut licentia audiendarum
confessionum concedi potest certis quibusdam circum-
scripta finibus.
§ 2. Caveant tamen locorum Ordinarii ac religiosi
Superiores ne iurisdictionem aut licentiam sine ratio-
nabili causa nimis coarctent.
Delegated jurisdiction, or the license for hearing con-
fessions, may be limited, but local Ordinaries and religious
Superiors should not restrict it unreasonably.
The first section is couched in general terms and ex-
cludes no class of clergy who need delegated jurisdiction.
Therefore also exempt religious84 who obtain delegated
•8 S. C EE. el RR., May *9, 0+ The regulars claimed exemption
1760; April 11, 1698 (Bizurri. from all restrictions, but Alexander
ColUctanea, pp. 546 f., a8a). VII, Jan. 30, 1659 proscribed the
ioi >gle
^ ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
276 ECCLESIASTICAL THINGS
jurisdiction either from the local Ordinary or from their
Superior may have their jurisdiction limited. But the
a
reason for so doing should at least have the semblance of
justice. The S. Congregations have more than once ad-
monished Ordinaries not to vex religious with unneces-
sary restrictions.*5 Any limitations should be based
on unfitness, as resulting from the examination, as the
Constitution of Clement X, " Superna," plainly states.40
Restrictions may be made as to persons, place and time.
As to persons it may be that a priest may be too young
to hear women's confessions, or may be suited for one
class of persons but not for another, etc. The same
reasons would also justify limitation as to place. As to
time, the Constitution of Clement X distinguishes between
priests who were found generally fit, and others who
proved less or not quite fit in the examination. De Lugo
says the bishop may have a reasonable suspicion that one
approved forever might care little for further study or
intellectual improvement, or the moral character of the
candidate may not be fully known to him.*7 The Ordi-
nary should not make the exercise of delegated jurisdic-
tion dependent on the permission of the parish priest ; ••
in fact, he should not lay down too many conditions.
proposition: "Won pessnnl Epis- p. as f.); S. C. P. F., Dee. n,
copi limit art sen restringere appro- 1838, id 5 {Coll., n. 879).
bationei, qua* regulations conctdunt M See fi 4, and Innocent XIII,
ad confessiones audiendas. neaue Apostolici minixtcrii." May 23. 1733.
ulla er parte rtvocare." Cfr. Bene- || 16, 19.
diet XIV, Instit., 86, n. IX. or Ballerini-Palmieri, Op** Thcot
flflS. C. EE. et RR., Sept. 13, Moral, Y\, p. 287.
1641; Sept 22, 164s (Buxarri, I. e„ a* S. Rit. C May 13, 1719 {Dec.
Au:h., n. 2264}.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 879 277
jurisdiction expressly to be granted
Can. 879
§ 1. Ad confession es valide audiendas opus eat
iurisdictione scripto vel verbis expresse concessa.
§ 2. Pro concessione iurisdictionis nihil exigi potest.
For the valid hearing of confessions, jurisdiction must
be granted expressly either in writing or by word of
mouth; but nothing is to be clvargcd for the grant.
Tacitly granted jurisdiction is hereby entirely rejected.
One would look in vain for the word " expresse " in the
papal constitutions *° quoted by Cardinal Gasparri, though
its equivalent is certainly to be found there. What is tacit
jurisdiction? It is one which an Ordinary or Superior
knows to be exercised by his subjects, and to which he
does not object, although he could easily do so. For in-
stance, a bishop calls a missionary from another diocese to
give a mission in a parish of his own territory. Thereby
he was formerly supposed to have granted him the neces-
sary faculties for hearing confession.70 Such tacitly
granted jurisdiction can no longer be held to be sufficient
for validly hearing confessions. There must be an ex-
press grant. The Ordinary in calling a missionary
must explicitly confer upon him delegated jurisdiction,
and the pastor must expressly obtain the same for a mis-
sionary, unless the latter belongs to the diocese or has ob-
tained faculties for the diocese in which he is to give the
mission.
We said this express grant is required for delegated
jurisdiction. The text does not contain this adjective;
a
c
eft Benedict XIV, " Apostolico in- to Noldin, I. c, n. 347; Sabelti-
dmlta," Aug. 5, 1744, I 3, expressly Barrett, Theol. Moral,, ed. igi 7, p.
mentions tacit approbation or juria- 706; ^»- Ecd. R*v., 1018, Vol. 58,
dictioe m oufficicat. p. 681.
p
, ,|Y> Original from
UNIVERSITY OF WISCONSIN
gle
278 ECCLESIASTICAL THINGS
but it is clearly implied, because ordinary jurisdic-
tion is acquired by reason of the office to which it is
attached.
Here it may not be amiss to answer the question
whether jurisdiction for hearing confessions may be ac-
quired by custom. The Decretals T1 absolutely deny the
possibility of acquiring such jurisdiction at least directly,
by custom, even though it be immemorable. Indirectly,
as Pirhing says," one could obtain ordinary jurisdiction
by acquiring a parochial benefice. Now this way is pre-
cluded, since all provision must be made in writing.73
Different from the express or tacit grant of jurisdic-
tion is a doubtful and probable jurisdiction. A doubtful
jurisdiction would be if one would not remember the date
when, or the time for which, it was granted, or doubt the
material extent of the faculties. Probable would be the
■
jurisdiction in reserved cases and censures as to whether
the circumstances are really such as would render the sin
a reserved one or one punished by censures. Our Code
has solved this doubt in favor of validity in both cases.74
-
a.
revocation of jurisdiction or license
Can. 880
§ 1. Loci Ordinarius vel Superior religiosus iurii-
dictionem vel licentiam ad audiendas confessiones ne
revocent aut suspendant, nisi gravem ob causam.
§ 2. At graves ob causas Ordinarius potest etiam
parocho aut poenitentiario confessarii munus interdi-
cere, salvo recursu in devolutivo ad Sedem Apostoli-
cam.
71 C. a, 6\ V. 10. T4 Can. 207, | 2; can. 209; Bal-
72 Com., lib. V, lit 38, n. 36. lerini-Pahnien, /. c, V, p. 319 ff-
Tl C*n. 159.
§le
k ,1,., Original from
UNIVERSITY OF WISCONSIN
D
•■:
CANON 880 279
§ 3. Non tamen licet Episcopo, inconsulta Sede
Apostolica, si de domo formata agatur, omnibus
alicuius religiosae domus confessariis una simul iuris-
dictionem adimere.
§ 1. Local Ordinaries shall not revoke or suspend
jurisdiction or license for hearing confessions, except for
a grave reason.
§ 2. But if there is such a reason, the local Ordinary
may also forbid the pastor or canon penitentiary to ex-
ercise the office of confessor, with due regard, however, to
the right of appeal in devolutivo to the Apostolic See.
§ 3. In the case of a domus formata, the bishop is not
allowed, without having first consulted the Apostolic See,
to take away jurisdiction from all confessors of a re-
ligious house at the same time.
Revoking the faculties or jurisdiction affects the
validity of confessions, while the recall of the license
only concerns licitness, but may reflect on the moral
character and reputation of the confessor. Hence it is
that a grave reason is required for The revocation of
either. Such a reason is stated in a decree of 1615 and
styled " a reason connected with confession."" This ap-
position is then further determined in the Constitution
of Clement X, "Supcrna,"1* which indeed speaks only of
regulars, but may be said to cover our case, which in-
cludes both religious and secular clerics. It is stated
there that if religious live scandalously or dishonorably,
or if they have committed a crime which, according to
the prudent judgment of the bishop, demands suspension
from hearing confessions, these would be reasons justify-
ing suspension from hearing confessions. For, adds said
Tfl S. C. EE. el RR ., Nov. ao. 76 See fig 5. 6.
1615 (Bizzarri, I, c, p. ai).
>Ie
Original from
UNIVERSITY OF WISCONSIN
280 ECCLESIASTICAL THINGS
Constitution, the principal quality of a minister of the
Sacrament of Penance is probity of life and good con-
duct. The Code simply says : " a grave reason/1 and with
this, says the " Superna" the conscience of the bishop is
charged: i.e., he must use common sense and act with
due deliberation. A grave reason would also be dis-
regard of a decree of interdict, or the discovery of ir-
regularities at the canonical visitation.77
§ 2 applies the same law to pastors and canonici poeni-
tentiarii of cathedral and collegiate churches who other-
wise enjoy ordinary jurisdiction. Therefore these, too,
may be suspended from the office of confessors, so that
the confessions would no longer be valid, unless, of
course, can. 209 would apply. But the text adds that
they may have recourse to the Apostolic See in devolutivo,
which signifies that the order must be obeyed until re-
versed by Rome.78
§ 3 repeats former enactments TB concerning confessors
of religions communities. The sources from which our
text is taken mention the houses of exempt regulars and
of moniales. There were many complaints against
Ordinaries for suspending all the confessors of a convent,
though formerly approved by them for hearing the con-
fessions of lay people.60 This, as one decree says, caused
scandal and injury to souls. Hence the new law which
has entered the Code. But our text apparently draws a
distinction between domus formatae and non fortnatae,
i.e., houses in which at least six professed members live,
four of whom are priests, and houses with less than this
..-.
TT S. C. EE. tt RR., Nov. ao. TO Innocent X, "Cum sicut accr-
1615; Dec. 9, 1740 (Bizxarri, I. c, pimus," May 14, 1648, g 4; Clement
pp. », 336, 3So): S. C. P. F.. Dec. X. " Suptma." |fi; S. C EE. #«
11, i8j9. ad 4 (Coll., n. 89a). RR., Not. jo, 1615.
7» Benedict XIV, " Ad militanlis," 80S. C. EE. #» RR., Not. 38,
March 30, 174a, II is. ao. 173a (Bizzarri. i c. p. ja8).
^le
Original from
UNIVERSITY OF WISCONSIN
CANON 880 281
a
number. The former documents simply say : alicuius
conventus. But the Code implies that only in the case of
a domus formata must the Holy See be consulted before
the Ordinary can suspend all the priests of a community
from hearing confessions. In smaller communities,
which have not at least six members, four of whom are
priests, all the priests may be suspended by the bishop
from hearing the confessions of lay people or secular
priests or non-exempt religious. From hearing the con-
fessions of exempt religious the Ordinary cannot sus-
pend exempt religious, since these receive delegated juris-
diction from their own superiors. If a bishop should at-
tempt such suspension in the case mentioned [downs
formata), it would be the Metropolitan's right and duty
to remind him of can. 880, § 3.81 On the other hand, the
Ordinary may, for a grave reason, without asking or noti-
fying the superior, remove or suspend a religious from
hearing the confessions of female religious.82 But if the
female religious be subject to a religious exempt superior,
the latter would be entitled to present another religious
for approval or examination, in order to obtain jurisdic-
tion.
It may strike the student as odd that the Code, in § 3,
has chosen the term " bishop," whereas in the other two
sections it uses the word M Ordinary." Was this done
merely for the sake of change? We hardly believe so
for reasons derived from a decision of the S. Congrega-
tion. The question was asked, whether the vicar capi-
tular (diocesan administrator in our country) may sus-
pend either secular or regular priests from hearing con-
fessions. The answer was that there was no difficulty
81 Ibid. suspending faculties vithout ■ r ea-
rn S. C. EE. et RR., Dec. 9, 1740 son (also under fi 1) would be valid,
Bizzari, /, c, p. 350). Revoking or as clearly implied by " Suprema."
*Ic
J , Original fro ni
UNIVERSITY OF WISCONSIN
■
282 ECCLESIASTICAL THINGS
as to secular priests, but the case was otherwise with re-
gard to exempt religious once approved by the bishop
either without limitation, or with the clause " ad bene-
placitum nostrum" To remove such is, according to the
School, a personal right of the bishop which does not pass
to the chapter or the vicar capitular,83 and hence td pro-
ceed thus is not in the power of the administrator, nor,
since it is a personal right, is it in the power of the vicar
general except with a special mandate.
confessors of vagi and peregrini
Can. 881
§ z. Omnes utriusque cleri sacer dotes ad audiendas
confessiones approbati in aliquo loco, sive ordinaria
sive delegata iurisdictione instructi, possunt etiam
vagos ac peregrines ex alia dioecesi vel paroecia ad
sese accedentes, itemque catholicos cuiusque ritus
orientalis, valide et licite absolvere.
§ 2. Qui ordinariam habent absolvendi potestatem,
possunt subditos absolvere ubique ten-arum.
§ 1. Secular as well as religious priests who arc ap-
proved for hearing confessions in some place, no matter
whether their jurisdiction be ordinary or delegated, may
validly and licitly absolve vagi and peregrini who come
to them from another diocese or parish, and also Catholics
of any Oriental Rite.
The Holy See, says an Instruction,8* has always ob-
served the rule that, in a matter so delicate as the Sacra-
ment of Penance, the liberty of the faithful should not be
impeded, but they should be free to confess to whom
they prefer. Of course jurisdiction must always be
88 S. C. EE. €l RR., June 19. 8* S. C. P. F., June a, 1835
1806 (Biizarri, /. c, p. 407 f.). {Coll., n. 839).
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 881 283
supposed. Now the text says that both secular and re-
ligious priests may absolve in casu, whilst the Constitu-
tion of Clement X, " Superna" (§ 7) only mentions regu-
lars who are approved for the place or diocese in which
they hear confessions. Hence a confessor approved for
the diocese of St. Joseph and hearing confessions in that
diocese, may absolve such as come to him from the dio-
cese of Kansas City. But what does " approbati in aliquo
loco" mean? It can mean neither license nor something
midway between license and jurisdiction. The text it-
self explains the phrase. Approval is here only a general
term which includes both jurisdiction and permission (for
religious especially, who need the latter in order to hear
confessions licitly). Hence the addition without the
copula et: " sive ordinaria sive dclcgata iurtsdictionc in-
strncti." Those who have ordinary jurisdiction are the
bishops and pastors, each within his own territory, the
bishop within the whole diocese, the pastor within his
parochial district.85 If the latter has received delegated
jurisdiction for hearing confessions in the whole diocese,
he may perform that office in any part of the dioce-e.
The subjects of this general rule are vagi, peregrini,
and Cathalici ritus Orientalis. Vagi are such as have
neither domicile nor quasi-domicile in any place, diocese
or parish. Peregrini are those who have a domicile or
quasi-domicile, but for the time being live outside of it, in
a strange place."0 Oriental Catholics are those of an
Oriental Rite differing from the Latin, though partaking
of the Catholic communion. This threefold class of per-
88 S. C. C, quoted by Benedict lam parochialem oblinetf Resp. :
XIV, Intlilul., 86, u. 14: " An Censeri dumtaxat in u civitnte, . el
frovisus de parochioli per concur- oppido, ubi sita est parockialts, non
sum, censendus sit aPprobatus autem passim per totam dioecesim."
idoneus minister ad audiendaj con- *• Can. 91.
a
(etsiones in ilia dioecesi, in qua •/-
^
I , Original from
UNIVERSITY OF WISCONSIN
284 ECCLESIASTICAL THINGS
sons, then, may be absolved by any priest who has either
ordinary or delegated jurisdiction for the place in which
be actually hears confessions. As to the difference of rite,
there is no difficulty, because the Sacrament of Penance,
as far as the formula of absolution is concerned, has little
or nothing to do with the rite. Wherefore the S. Congre-
gation " has more than once enjoined the bishops of the
Oriental Rite not to forbid their subjects to go to confes-
sion to Latin priests. Neither is there any doubt as to
vagi, because custom testifies to the fact that they may be
absolved by any priest endowed with jurisdiction. Unless
jurisdiction is granted in one way or another, absolution,
which is given in the form of a judicial sentence, cannot
be imparted validly. This calls for a brief observation
concerning peregrini. We will not enter into the contro-
versy which raged several years ago concerning this
point,88 but will only state what, according to the Code,
seems to us the more probable and consistent view.
All admit, with St. Alphonsus,88 that the Pope may grant
jurisdiction to any priest for absolving peregrini
(strangers) and that, without either ordinary or dele-
gated jurisdiction, no valid absolution may be imparted.
The question is: Who grants the jurisdiction necessary
for absolving a stranger: — the bishop of the stranger
who has left his domicile or quasi-domicile, or the bishop
in whose territory the stranger dwells at the moment?
Concretely, if a stranger comes from the diocese of Kan-
sas City to a priest in the diocese of St. Joseph, and asks
to be absolved, which bishop grants jurisdiction, the
ST S. C P. F., June a, 1835: Theol. Moral., V. p. 305. on. 613 fi\;
Dec. 11, 1838: April 30, 1862, n. a Lehmhuhl. J. c, II, n. 384; Noldin.
(Coll.. nn. Hjq. 870. 1227). A *en- Zeittchrifl fur Kath. Theol.. 18S1,
eral prohibition would render confes- 453 f. ; De Sacramentii, n. 349.
sion ncitlicr invalid nor illicit. so Thtol. Moral.. VI, n. 588.
88 Cfr. Ballcrini-Palmieri, Oftts
'le
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 881 285
bishop of Kansas City or the bishop of St. Joseph?
After reading the acute reasoning of Ballerini-Palmieri, it
seemed to us that they had gained the point, and certainly,
before the Code was promulgated, their position was
speculatively the stronger. But after pondering can. 881,
as compared with can. 879, § I, this difficulty appeared:
How about express jurisdiction? Ballerini-Palmieri's
reasoning is based upon " tacit consent," " explicit or im-
plicit license or approbation." The peregrinus is sup-
posed to have the tacit consent of his bishop which he
transfers to the confessor. However since tacit iurisdic-
tion is now excluded, and since our text speaks of such
as are approved " in " some place or diocese, we cannot
help saying that the necessary jurisdiction must come
from the Ordinary of the diocese in which the confession
is heard. The difficulty arises from the fact that the
peregrinus is not subject to the Ordinary who is supposed
to grant jurisdiction over him. According to the Council
of Florence and that of Trent,00 the confessor must have
either ordinary or delegated power over his penitent. It
is true that the jurisdiction cannot be claimed by reason
of domicile or quasi-domicile; yet it appears to us that the
old adage, " Actor seqnihtr reum,"01 may to some extent
be applied here, for the penitent, being himself plaintiff
and defendant, may choose the forum competens and thus
submit himself to a judge otherwise competent, i.e., any
priest who has jurisdiction. Therefore the Church, espe-
cially now-a-days when changes of domicile and wander-
ing are so frequent, has wisely left it to the penitent to
choose his own confessor, as long as the latter is qualified
according to general law of the Church.
BO Thus Ballerini-Palmeri, V. p. linger, n. 594), Trid., se»a. 14. c. 7,
306, n. 615; Decret. pro Arm. (Den- de potnit; can. 87a.
»iCc. 5, 8, X, II, 2.
gle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
286 ECCLESIASTICAL THINGS
§ 2. Those who possess ordinary jurisdiction for a£»-
soh'ing may absolve their own subjects everywhere.
Therefore Ordinaries and pastors (but not curates, as-
sistants, or rectors) may absolve their subjects by reason
of their office, to which this power is attached. The
Cardinals enjoy the same power by reason of a personal
privilege, which, however, cannot be communicated to
others, except on their own behalf and that of their
fantiliares.*2
Subjects of Ordinaries and pastors are those who have
their domicile or quasti-domicile within the boundaries of
the diocese or parish. These, then, may be absolved by
their respective Ordinaries or pastors in any diocese or
parish, no matter where they may meet.03 The ordinary
jurisdiction may therefore be called extra-territorial or
personal.
absolution in danger of death
Can. 882.
In periculo mortis omnes sacerdotes, licet ad con-
fessiones non approbate valide et licite absolvunt
quoslibet poenitentes a quibusvis peccatis aut censuris,
quantumvis rescrvatis ct notoriis, etiamsi praesens sit
sacerdos approbatus, salvo praescripto can. 884, 2252.
When there is danger of death, any priest, even though
not otherwise approved for hearing confessions, may
validly and licitly absolve any penitent from whatever
sins and censures, including those which are reserved and
notorious, even though an approved priest may be pres-
ent. But the rules laid down in can. 884 and 2252 must
be observed.
p
9? Can. 2J9, I 1, on. I, a.
»» S. C. C*i Nov. 19, Dec. 3, 1707 (Richtcr, Trid, p. ao6, n. 3).
oogle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 882 287
The penitential discipline," which was rather severe in
the first century, was gradually mitigated so as to open the
gate of salvation to public penitents, who could receive
the imposition of hands at least at the point of death.
The last of the three customary impositions was indeed
reserved to the bishop, but the priest was allowed to give
it in the " last necessity," pa which certainly was the ap-
proaching end. The subsequent ages •• witnessed further
mitigations, until the present discipline was established
by the Council of Trent,07 which, inter alia, enacted the
wholesome law that no censure or reserved sin can debar
a dying penitent from receiving the benefit of absolution.
" How is the periculum mortis or danger of death to be
understood?" was asked by a former bishop of Cincin-
nati, and the Holy Office B8 referred him to " approved
authors." One of these authors tells us that danger of
death exists, not only in a very serious sickness, but also
when there is danger to life from an external cause, for
instance, before a battle, upon setting forth on a perilous
voyage, before a difficult childbirth, etc.00 In such a cir-
cumstance, then, our canon may be applied, and any
priest, even though he has neither ordinary nor delegated
jurisdiction or permission, may validly and licitly absolve.
The text goes still further by saying: even though an ap-
proved priest may be present. Hence any validly or-
dained priest, even though belonging to a heretical or
schismatic sect, or apostatized or censured may, even in
a
MCfr. Pohle-Preass, The Sacra- «i C. 14. C. 26. q. 6.
ments Vol. Ill, pp. 37 ff.; M. T. oa C. i, Extrnv. Comm., V. 7
O'Donnell. Pentnce in the Early (Boniface IX, " Inter cunctas ").
Church. 1907. Palmieri. De Poenit., °7 Sess. 14, C. 7, de poenit.
p. ISO. justly distinguishes a three- MS. O.. Sept. 13, 1859, ad 1
■■■
fold manuHM impositio: at the be- (Coll. P. F., n. 1181).
ginning, during, and at the end of w Noldin, De Sacram., n. 353.
public penance, which latter signi-
6ed absolution.
oogle
k ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
288 ECCLESIASTICAL THINGS
presence of an approved confessor, validly absolve any
one in danger of death, and if we connect that clause
with the present, he may also do so licitly.1 It is but just,
however, to add another decision of the Holy Office,
in answer to the question : " Whether it is permitted
to demand absolution of a schismatic priest in danger of
death if no Catholic priest is at hand," as follows : Yes,
provided no scandal is given to the faithful, no danger of
perversion threatens the sick person, and, finally, pro-
vided that it may be reasonably presumed that the schis-
matic minister will absolve according to the rite of the
Church.2 The validity is not affected, provided he pro-
nounces the formula correctly, but the obligation here im-
posed should not be made light of. •
Furthermore, the Code says : he may absolve from all
sins and censures, although reserved and notorious, ex-
cept in two cases : the absolutio complicis, of which can.
884 treats, and the obligation of recurring to the proper
authority, if the penitent regains his health, as will be
more fully explained under can. 2252. Observe that
recourse to the Holy See, i.e., the S. Poenitentiaria,
must be had in case a sin has been forgiven which was
modo specialissimo under censure reserved to the Holy
See by either the law itself, or by the Holy See per-
sonally; and recourse must be had to the bishop if the
law itself or the bishop has reserved a censure.
The time within which the application must be made
is generally a month after the complete recovery of
the penitent. It may be done either personally or
through the confessor by mail,8 of course, under fictitious
■
names.
-
1 S. O., July 39, 189' (Coll. P. F., a Can. *354. I i : S. O.. Aug.
n. 1761) only mentions validity. 19, 1891 {Coll. P, P., n. 1764)-
2 S. O., June jo, July 7, 1S64,
D
id 6 [Coll. cii.. n. ias7>.
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
",
CANON 883 289
confessors at sea
Can. 883.
§ 1. Sacerdotes omnes maritimum iter arripientcs,
dummodo vel a proprio Ordinario, vel ab Ordinaho
portus in quo navim conscendunt, vel etiam ab Ordi-
nario cuiusvis portus interiecti per quem in itinere
transeunt, facultatem rite acccperint confessiones
audiendi, possum, toto itinere, quorumlibet fidelium
secum navigantium confessiones in navi excipere,
quamvis navis in itinere transeat vel etiam aliquandiu
consistat variis in locis diversorum Ordinariorum
iurisdictioni subiectis.
§ 2. Quoties vero navis in itinere consistat, possunt
confessiones excipere tain fidelium qui quavis de causa
ad navim accedant, turn eorum qui ipsis ad terrain
obiter appellentibus connteri petant eosque valide ac
licite absolvere etiam a casibus Ordinario loci reserva-
tia.
§ 1. Any priest traveling on the ocean may hear the
confessions of all Catholics who travel with him on
board the same ship, although the vessel may on its trip
pass, or even stop for some time at, various places sub-
ject to different Ordinaries. But in order to absolve
these travelers validly and licitly the priest must
have duly obtained the faculty either from his own
Ordinary, or from the Ordinary of the place he sails
from, or from the Ordinary of any port which the vessel
passes.
This canon, as is natural, grew out of the recently in-
creased travel. It is not surprising, therefore, that
theologians as well as the Holy Office were at first in
doubt as to which Ordinary should impart jurisdic-
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
290 ECCLESIASTICAL THINGS
tion. It was first decided that the Ordinary of the
diocese from which the ship sailed should grant the neces-
sary faculty, but that it should last only until the vessel
reached the next station where an Ordinary was located.*
Later the faculty was extended over the whole trip, even
though the vessel made several stops of some duration
(aliquandiu) ■ Finally the Holy Office formulated the
text which is our present § i, but limited the faculty of
hearing confessions to the ship itself.0
§ 2 is the final formulation as it was rendered by the
Holy Office on December 13, 1906, but which has not
entirely entered our Code. What the legislator has
adopted into the text is the following: As often as the
vessel stops on its trip, the priests endowed with faculties,
as stated under § i, may validly and licitly hear the con-
fessions of such of the faithful as may for any reason
visit the vessel, as well as the confessions of those who
approach them for that purpose when they go on land for
a short stop. In this latter case, they may absolve also
from cases reserved to the Ordinary of the diocese where
they stop. The omission in the Code of one clause in-
serted by the Holy Office is noteworthy. The Holy Office
had made a condition in the case where a priest hears
confessions on land and absolves from reserved cases. viz:
" provided there be no, or only one, approved priest in
that place and the Ordinary cannot easily be reached/' T
The legislator certainly knew of that ruling, and the
fact that he omitted it purposely from the Code shows
that he intended to free the priests in question from the
condition named. It would, besides, be embarrassing for
traveling priests, who perhaps do not even know the Ian-
4 S. O.. March 17. 1869 (Coll, « S. 0.. Aug. aj, 1905 {ibid., n.
P. F., n. 13*.1>. 3344. note).
ft S. O., April g. 1900 (ibid., n. 7 Ibid.
oogle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 884 291
Q
guage of the country, to have to ask about the presence of
priests or the whereabouts of the Ordinary.
§ 1 states that the respective priests must have duly
(rite) obtained the faculties. This implies that they were
found worthy and fit, according to the enactment of the
Council of Trent, to obtain the faculties.8 Therefore
Ordinaries are at liberty to subject them to an examina-
tion, unless, knowing them personally or from recom-
mendation, they deem this measure superfluous. Now-a-
days wireless telegraphy might prove a convenient means
of obtaining faculties in case a priest has forgotten to do
so, when leaving the port or diocese.
Si
o
absoltjti0 complices invauda
Can. 884.
Absolutio complicis in peccato turpi invalida est,
praeterquarn in mortis pcriculo; et ctiam periculo
mortis, extra casum necessitatis, est ex parte confes-
sarii illicita ad norman constitutionum apostolicarum
ct nominatim constitutionis Benedict! XIV Sacramen-
tum Poenitentiae, 1 Iun. 1741.
In the Constitution of Benedict XIV, " Sacramentum
Poenitentiae," the sin from which an accomplice may not
be absolved is called " peccatum turpe atque inhonestum
contra sextum decalogi praeceptum commxssum." That
it be such, it must be committed by both parties and con-
stitute a certain, external, and grievous sin on both sides
by reason of the internal and external act. The ac-
complice may be of cither sex.B
If a confessor attempts to absolve his accomplice in
8 S. 0., Aug. 23, 1905 {ibid.). probates auctorej, and especially to
0 S. O., Sept. 13, 1859 (Coll. P. St Alphoniui; cfr. Noldin. Dt
F., a. 1181). which refen to Sacramentis, n. 384.
m\s* Original from
UNIVERSITY OF WISCONSIN
292
ECCLESIASTICAL THINGS
■
such a sin, his jurisdiction ceases: nulla atque irrita
omnino sit, as if it were an absolution imparted by a
priest who lacked jurisdiction and the faculty of absolv-
ing validly. This invalidity, as stated by law in said Con-
stitution, affects every person involved in such a crime,
and comprises the whole act or matter of confession, not
only the act of complicity. Whether a confessor who
would bona fide absolve his accomplice, either because he
did not know the penitent, or was not aware of the law
which deprives him of jurisdiction in casu, would ab-
solve validly is a controverted point.10 The wording of
the Constitution in our opinion rather favors the in-
validity of such a confession, although the excipere
audeat " seemingly supposes an act of presumption and
voluntary disobedience, which, of course, in a case of igno-
/ance or inadvertence the confessor could not be charged
with. If the accomplice should, by reason of forgetful-
ness or even purposely but bona fide, omit all mention
of the complicity, the confession would be valid12 If
the penitent had already confessed the sin in question to
another priest, and was absolved by him, the guilty con-
fessor may afterwards validly and licitly absolve his ac-
complice, even though the latter should, among other sins,
again confess the sin of complicity ."
When there is danger of death, the confessor may
validly and licitly absolve his accomplice from the sin of
10 Noldin. /. c, a. 385.
11 The phrase ousui fuerit occurs
in the clause which states the cen-
aure and commences with: et
nihiiominus ; toe absolution is not
only invalid, but liable to censure.
The censure would not, however, be
incurred in the controverted case.
iz If the priest accomplice had
either directly or indirectly induced
hi* accomplice not to confess this
sjo, excommunication would fol-
low; cfr. can. 2367, ( 1; S. Poenit,
Feb. 19. 1896.
13 Noldin /. c, n. 385, says in a
note: " Sunt tamen inter recentts
pracscrtim D'Annibale (111. n. i*. 4
Seotini {III, n. 367) et Genicol (//,
n. .«-'). ?"■ confessario fotcstaitm
tribuant etiam in peccatun compli-
citatis, posti/uan hoc semel dirrctr
iflm remiitum trt."
jle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 884
293
complicity, if there is real necessity, i.e., according to
Benedict XIV,14 */ no other priest, whether with or
without jurisdiction, is to be had. But the same Pon-
tiff also foresaw the case of scandal or loss of reputa-
tion if another priest, simplex sacerdos, should have to
be called. Hence he says: If another priest cannot be
called without giving scandal or seriously impairing the
reputation of the guilty priest, then the other priest may
be considered as not present.
However, the guilty priest, continues the Pope, should
not imagine danger of scandal and ill repute, but rather, if
it should be necessary, endeavor, as much as lies in him,
to prevent and remove by ordinary means the possibility
of scandal, so that another priest can be called without
causing a stir or surprise. Then is added the clause
which our Code has adopted from said Constitution, vis.:
Should the priest purposely neglect to employ the means
for calling another priest, or put it off maliciously, so
that really no urgent necessity would entitle the guilty
priest to absolve his accomplice, absolution would indeed
be z'alid, but grievously illicit, and the guilty priest would
incur the censure inflicted by law. Thus far the Consti-
tutions which concern our case. For the rest, we refer
to can. 2367 and merely add that those who absolve an
accomplice " ex ignorantia crassa or supina " incur the
censure which the law has established.18
-
14 " Apostoliei muntris." Feb. 8,
,745. f l"4i " Tunc olium sactr-
dotem ptrindt haberi, ctnstriqmt
pout, ae si rtvera abesset, otque
drficeret; at proindt in to rtrum
stain, non prohiberi socio crimmis
sacerdoti absolutiontm potnitenti ob
to quoque crimint imptrtiri. SeioS
aut.-m complmr ejusf*odi sarrrdos,
tt strio animadvirtoi, fort »t rt
ipso coram Dto, qui irrideri no»
>Ie
Pottst, reum gravis advtrsus praedic*
tam noslram Constitut inobtditn-
tiae, tatisque in ea pocnis obnoxium,
si proedictae infamiae, out s:andaU
ptricnla sibi uttro ipst confingat, ubi
non runt,"
15 S. 0., Jan. 13. 18*3 (CoU. P.
P., n. 1777). A very criminal yet
curious proposition (n. 7) ia that
proscribed by Alexander VII, Sept.
aa, 1665 (Denzinger, n. 978).
Origi nal from
UNIVERSITY OF WISCONSIN
294 ECCLESIASTICAL THINGS
additional prayers
Can. 885.
Etsi preces, ab Ecclesia formulae absolutoriae
adiunctae, ad ipsam absolutionem obtinendam non sint
necessariae, nihilominus, nisi iusta de causa, ne omit-
tantur.
The form of absolution is: "Ego te absolvo a peccatis
tuts" and this is essential to the Sacrament.18 However,
there are some other prayers, wfe.j the Misereatur, Indul-
gentiam, and the words which precede the formula :
Dominus, etc., which, our text says, are joined to the
formula of absolution by the Church, and though they are
not required for absolution, yet should not be omitted
without a just cause.
D
E
absolution not to be refused or deferred
Can. 886.
Si confessarius dubitare nequeat de poenitentis dis-
positionibus et hie absolutionem petat, absolutio nee
deneganda, nee differenda est.
If the confessor has no reason for doubting the proper
disposition of the penitent, and the latter demands absolu-
tion, it is neither to be refused nor postponed.
This canon belongs mainly to Moral Theology, because
it most intimately affects the conscience. Yet, it is aston-
ishing how many wrong opinions, rejected by the Church,
are connected with this subject. As usual, there are
iflThe word ego ta not strictly novetur, said the S. Rit. C, March
essential to tht formula of abso- 11, 1837 {Dccrcla A*th„ n. a7*4>.
lution, nor are the words 0 peccatis The Passio, etc., is not prescribed,
tnis; still less the deinde; but they and may therefore be omitted,
should not be omitted; niM in- (Noldin, / c, n. 337)-
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 886 295
excesses and defects. The former consist in demanding
too much of the penitent. Thus Quesnel X7 called it
wise, enlightened, and charitable to make penitents wait,
to practice humility, to realize their state, to pray for
the spirit of contrition and penance, and to make
atonement before they are reconciled with God. The
Synod of Pistoja18 rejected attrition and demanded con-
trition for confession. The Jansenists required satisfac-
tion before absolution could be imparted.10 It would
also be excessively rigorous to refuse absolution in time
of sickness to such as were careless about receiving the
Sacraments when they were in good health. No one who
gives signs of repentance, should be refused absolution.20
A gross defect would be to give absolution to such as
live in proximo occasione peccandi and make no effort to
break the cu9tom or remove the occasion, or such as are
ignorant of the necessary mysteries of the Blessed Trinity
and the Incarnation.21 Concerning the necessary belief,
a distinction between such articles of faith as are neces-
sary necessitate medii, the two just mentioned, and such
as are necessary necessitate praecepti must be made.
Without belief in the former, absolution would simply
be invalid.22 If one is culpably ignorant of those articles
of faith which are to be believed necessitate praecepti,
he may be given absolution only if he is sorry for this
culpable ignorance and accuses himself thereof, and also
seriously promises to learn what he ought to know."
17 Prop. dam. a Clement* XI, n. 20 S. O.. May 9, 1811 (Colt. P.
87, "Unigenitus," Sept. 8, 1713 F-, n. 757).
(Den ringer, o. ijoj). 91 Prop, dam., n. 60-64, March
in Prop. dam. a Put VI., n. 36, a, 1679 (Ben linger, no. 1077 fl).
" Auctorem fidei" Aug. *3, 1794 2= S. C. P. F., April 13. 1807,
Ob., b, 1399)- n XXT tCotl.. o. 69?)-
19 Prop. dam. ab Alex. VUl., n. 2a Benedict XIV, *' Etsi minime,"
15 and 17, Dec. 7. 1690 (ifr., n. Feb. 7, 1742, | la.
117a 0.
Go >gle
I , Original fro ni
UNIVERSITY OF WISCONSIN
296 ECCLESIASTICAL THINGS
As to Greeks who come to Latin priests for confession, —
the case was reported from Constantinople,24 — it has
been decided that they must be asked not only whether
they believe what the Greek Fathers believed, but also
whether they maintain the faith of "old"" Rome, i.e.,
the Roman Pontiff.
As to apostates from the faith, they should not indis-
criminately be refused absolution, but be absolved if they
show signs of sincere repentance. They must indeed
abjure their apostasy in the presence of the faithful to
whom they have given scandal, but it is not necessary that
they do so before infidels. They must, however, abstain
from every act and sign of infidelity or paganism, so that
the infidels gradually learn of the mental and moral
change that has come over the former apostate.2*
With regard to Freemasons and kindred secret socie-
ties there are two decisions which concern the Fenians
of Ireland and of the U. S. These were declared to
belong to sects condemned by the Apostolic Constitutions
and their members cannot be absolved unless " they abso-
lutely and positively abandon the society," otherwise
absolution is invalid.27 In general the Holy Office 28 has
condemned all societies which plot against the ecclesi-
astical or civil government, no matter whether their mem-
bers are bound by an oath of secrecy or not. Here
again the question about the Knights Templars, Odd
Fellows, Sons of Temperance, and Knights of Pythias
recurs, and we must repeat what we have said in our
Vol. Ill, namely, that these organizations are forbidden
2«S. C. P. F., Feb. 4, 1664. ad a =« S. C. P. F., 16*9, Dec. a8.
(Co//., n. 156). 1770 [Coll., n. 481).
it The term is a counter-statement 37 S. 0.. Junr 37. 183R: Jan. ta,
of can. 3, Constant I, and can. 1870 {Coll. P. F., no. 868, 1350).
aB. Cbalccd. 28 S. O., Aug. 5, 1840 {ibid., n.
1350, note).
gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 887 297
by the Church, but to exclude their members from absolu-
tion would be going too far,29 since the Church has not
pronounced them to be under censure Here it may be
well to report a reply given by the Holy Office to a
Canadian bishop, who had asked whether or not Catholics
who give their name to secret societies merely to avoid
material loss, intending to remain good Catholics, could
be absolved. The answer was that they may be admitted
to the Sacraments, after previous absolution from cen-
sures, if necessary, provided that, (1) they separate them-
selves from the society; (2) they promise not to take
any active part in the meetings or celebrations and not
to pay the fees; (3) that they remove all occasion of
scandal ; (4) that they are ready to have their names
cancelled from the list as soon as they can do so without
serious loss.30
These then are the cases which refer more especially
to the public discipline of the Church. As to the rules
for the postponement of absolution and the treatment
of occasionarii and recidivi, the reader must be referred
to Moral and Pastoral Theology.31
wholesome penances
Can. 887.
Pro qualitate et numero peccatorum et conditions
poenitentis salutarcs et convenientes satisfactioncs
confessariua iniungat; quas poenitens volenti animo
excipere atque ipse per se debet implere.
According to the quality and number of the sins com-
2* Thus Schieler-Heuaer, Theory ni.fr. the Instruction of the
an d Practice of the Confessional, S. C. P. F., of Oct. 3, 1736 iColl.,
ioos, p. 335, note i»6. n. 321); ind Scfcieler-Heuser. L c,
«0S. O., March 7. »883 {Coll. p. 407 ff.
P. P., D. ISM).
jle
£ ' ^ •. -J,-. Original from
UNIVERSITY OF WISCONSIN
298 ECCLESIASTICAL THINGS
mitted, and the condition of the penitent, the confessor
should impose wholesome and proportionate penances,
which the penitent must willingly accept and perform
in person.
As the priest is under grave obligation to impose a
penance or to demand satisfaction, the penitent is under
the same obligation to accept and perform the penance
personally, not by a substitute.82 This obligation arises,
not from the essence of Penance, but from the fact that
satisfaction is an integral part of the Sacrament. For
the significance or purpose of imposing a penance is not
only to preserve the new life and to heal infirmity, but
also to punish and destroy past sin." From this it is
evident why the penance is to be performed personally
and that it is a really sacramental satisfaction or atone-
ment for sins.14
■
At the same time the Code states that these penances
should be proportionate to the sins committed and to the
condition of the penitent, a point which is amply ex-
plained by the moralists.1
35
the confessor a judge and physician
Can. 888.
§ i. Meminerit sacerdos in audiendis confessionibus
se iudicis pariter et medici personam sustinere ac
divinae iustitiae simul ct misericordiae ministrum a
Deo constitutum esse ut honori divino et animarum
saluti consulat.
83 Trid., sess. 14, c. 8. de poenit. 35 Cfr. Sabetti-Barrett, Thtol.
83 Ibid, and prop, damn., Sept. Moral, 1916, p. 688 f.; Schielcr-
24, 1665, n. 15 (Denzinper, n. 086). Heuser. /. r., p. 256 ff.; and the
34 Prof", damn, in the " Auctorem Instructions of the S. C. P. F. of
fidei," Aug. a8, 1794, a. 35 (Den- Oct. 3, 1736, and April »9, 1784
singer, n. iji8). (Coll., an. 321, 569).
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
9
CANON 888 299
§ 2. Caveat omnino ne complicis nomen inquirat, nc
curiosis aut inutilibus quaestionibus, maximc circa
sextum Decalogi praeceptum, quemquam detineat, ct
praesertim ne iuniores de iis quae ignorant irnpru-
denter interroget
The confessor shall remember that he is a judge and
physician appointed by God to administer divine justice
as well as mercy, in order to provide for God's honor
and the welfare of souls.
He shall be careful never to ask the name of an ac-
complice, nor to detain the penitent with inquisitive and
useless questions, especially concerning the sixth com-
mandment, and above all he shall not imprudently ask
young people about things they are ignorant of.
Benedict XIV issued three Constitutions " to eradicate
an evil which had taken root in Portugal, namely, the
practice of some confessors to ask for the name of the
accomplice and to refuse absolution if the penitent re-
fused to reveal it. The Pontiff forbade this abuse under
pain of suspension from the faculty of hearing con-
fessions and other still severe: penalties. Those who
defended the proposition condemn >d by the Holy See
were subject to excommunication latae sententiae Ro)nano
Pontifici simplkiter reservatae." Though this penalty
does not appear in our Code the grievous obligation and
liability to punishment remain. It is not permitted to
ask the name or residence of an accomplice, or to inquire
into any circumstances that might indirectly lead to the
manifestation of his or her name.88
*•" Supreme," July 7. "74S1 as Cff. c I, Dist. 6. de Pocnit.
" Ubi primttm," June a, 1746; "Ad (St. Aup.): e. la, X, V, 38; Bcoe-
eradkandum," Sept 28, 1746. diet XIV, " Apostotica Conslitutio,"
8T Piui IX, " Apostoltiat Sidis," June 36, 1749, 18 19. «: De Syn,
Oct. 3. 18*9, I II, 1. Dioec. XI. 2. 18.
§le
% ,1,., Original from
UNIVERSITY OF WISCONSIN
-
300 ECCLESIASTICAL THINGS
That the confessor should act as judge and physician
is evident from the purpose of confession, which is not
only to render a verdict, but also to apply the necessary
means against the wounds inflicted by sin and against
relapse." Of course, the confessional should not be
made a pulpit : the practice of preaching in it might
deter people from going to confession.
the seal of the confessional
Can. 889.
§1. Sacramentale sigillurn inviolabile est; quare
caveat diligenter confessarius ne verbo aut signo aut
alio quovis modo et quavis dc causa prodat aliqua-
tcnus peccatorcm.
§ 2. Obligations servandi sacramentale sigillurn
tenentur quoque interpres aliique omnes ad quos
notitia confessionis quoquo modo pervenerit.
§ 1. The sacramental seal is inviolable, and hence the
confessor shall be most careful not to betray the penitent
by any word or sign or in any other way for any reason
whatsoever.
§ 2. The obligation of keeping the sacramental seal
binds also interpreters and all other persons who may in
any way have acquired knowledge of confession.
As long as public confession, at least for public and
heinous crimes, and consequently public penance were in
vogue, the sacramental seal naturally was not often men-
tioned. But when, after the incident at Constantinople.40
auricular confession became more frequent, nay com-
mon, the clergy had to be advised and enjoined to take
SB Cfr. Schielcr-HeuMf, Theory 40 Cfr. PoMcPreun, Tie Wr*.
and Practice, pp. 435 ff. mm*/, HI, p. 203 f.
oogle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 889 301
heed lest they revealed anything that had been con-
fessed in secret. St. Augustine demands of the priest
that he, like a wise and perfect physician, first heal
his own sores and then cure the wounds of others, and
not make them known." Leo the Great indicates the
reason why auricular confession and the subsequent se-
crecy were commendable when he says men are more
readily induced to confess their sins if their conscience
is kept from the ears of the people.*3 A very remarkable
text is that of the Decretals which says that what the
priest knows from confession, he knows not as a (public)
•a
judge, but as God.** Hence under no pretext can the
confessor be forced to reveal the crimes confessed to
him."
The seal of the confessional rests on natural, divine,
and ecclesiastical law. The natural law dictates that an
entrusted secret should never be revealed ; it is privileged
knowledge which even the civil courts respect in publicly
acknowledged persons for the welfare of the community.
The divine law demands that what is connected with a
divine institution, such as confession, should be kept
from profane ears, or, as the text above quoted says,
that the secrets of God should not be revealed unless
He gives permission to do so. But it would be absurd to
assert that Christ permits such a revelation, because He
knew that confession was a grievous burden, which would
become intolerable if it impaired the penitent's good name.
The divine precept of confessing even secret sins also de-
mands absolute secrecy.
The ecclesiastical law inflicts the severest punishments
on the transgressors of this divine command, subjecting
D
"■
«C. 7. C 3, q. 7; cfr. Reg. S. «3 C. 2, X, I, 31.
Bentd.. c. 46. « C. 13. X, V. 31.
«C. 89, Dirt. I. dc Poemt.
§le
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
302 ECCLESIASTICAL THINGS
those who directly violate the seal of confession to that
form of excommunication which is most especially re-
served to the Apostolic See."
The seal is violated directly if a sin confessed in the
confessional and the name of the penitent is revealed ;
indirectly, if from the confessor's way of acting or speak-
ing there is danger that the sin of the penitent be made
known or that confession itself becomes hateful. It
would be an indirect violation if the priest would ask
questions in such a loud voice that the bystanders could
understand them, or if he would use gesticulations known
to bystanders as indicative of certain sins.
The custom of giving certificates (schedula confes-
sionis) to those of the faithful who are admitted to Holy
Communion has been deservedly rebuked." However,
it is permissible to give a certificate which testifies to
the fact that the bearer has received both the Sacrament
of Penance and Holy Communion. Another custom was
also reproved by the S. Congregation. Some missionaries
were accustomed to put exactly as many particles on
the patcna as there had been persons absolved and ad-
mitted to Holy Communion. This they could not do
except by using sacramental knowledge, and the practice
was therefore rebuked as an abuse.41
From all that has been said it appears how careful the
Church is in guarding the sacramental secret. No power
on earth can compel the confessor to reveal anything he
has heard in the confessional.
§ 2 obliges by virtue, not of the divine, but of the nat-
ural and ecclesiastical law, which latter threatens severe
punishment against transgressors, i.e., such as obtain and
45 Can. 2369. 47 S. C. P. F., Feb. 29. 1836
« S. C. P. F., Jan. 14. 1006 (Coll., n. 846).
{Coll., n. 68j).
od by GoOgle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 890 303
make use of the knowledge obtained in confession. Thus,
if a confessor directly or indirectly reveals anything
out of confession, the hearers are bound to keep such
knowledge to themselves. Interpreters are strictly bound
to silence; bystanders who may perchance hear something
said in confession are likewise obliged to secrecy.48
Theologians and consultors are bound by the present law
unless the one seeking advice frees them from this ob-
ligation. One who finds a list of sins drawn up for con-
fession, is bound to keep it secret.48 As to superiors, the
following canon regulates their obligations.
USE OF KNOWLEDGE GAINED THROUGH CONFESSION
FORBIDDEN
o
a
13
Can. 890
§ 1. Omni no prohibit us est confessario usus scien-
tiae ex confessione acquisitae cum gravaminc pocnitcn-
ti», excluso etiam quovis rcvelationis periculo.
§ a. Tarn Superiores pro tempore exsistentes, quam
confessarii qui postea Superiores fuerint renuntiati,
notitia quam de peccatis in confessione habuerint, ad
exteriorem gubernationem nullo modo uti possunt.
§ 1. The confessor is strictly forbidden to make use of
the knowledge gained from confession, if this use in-
volves injury (gravamen) to the penitent, even though
the seal of confession were not endangered.
Sacramental knowledge is, as it were, divine knowledge,
and therefore must be kept as a divine secret. Hence,
though a confessor knows one to be guilty of a crime, he
is not allowed to rebuke him publicly or to excommuni-
a
cate him, even if he is accused by others and apparently no
48 S. C. P. F„ Sept. 6, ifijo « Cfr. Noldin, /. c, n. 425*
{Coll, n. 61). Scbieler-Heuier, /. e., p. 466 ff.
^
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
304 ECCLESIASTICAL THINGS
violation of the seal would follow.*0 The sole reason
here given why the use of confessional knowledge is abso-
lutely interdicted, is the damage or trouble (gravamen)
that may accrue to the penitent.*1 Gravamen, literally,
means heaviness ; metaphorically trouble or complaint,
either in the spiritual or the material life.62 Therefore
incautious remarks or personal references or intimations
must be avoided. Defamatory remarks about indi-
viduals or communities which are the result of hearing
confessions must be avoided. Even in his sermons the
priest must beware of describing details which might
point to a particular family or individual. AH these are
gravamina, which cause aversion to confession.
How serious this obligation is may be illustrated by
the following case proposed by moralists.68 If the con-
fessor knows from confession that his life js at stake, he
may indeed make his escape if he can do so without en-
dangering the seal of confession or damaging the peni-
tent; but if he cannot escape without violating the seal or
causing a gravamen to the penitent, the confessor must
face his fate.
§ 2. Superiors who are actually such at the time, as
well as confessors who afterwards become superiors, are
not allowed to make use of confessional knowledge for
the external government of their subjects. This law was
given by Clement VIII, 1593, and ratified by Urban VIII,
from whom our text is almost verbally taken.54
Note that our canon speaks of superiors generally,
though the decree of Clement VIII was intended chiefly
Q
"■
'■-.
DO C. 3, X, I. 31. rather reticent about the nature of
61 Prop. damn, a S. 0., Nov, 18, the gravamen.
1682 (Denzinffcr. n. 1087). 63 Cfr. Schieler-Heuser, /. c. p.
52 S. C P. F., Feb. aa. 1636 483; Kolclin, /. e.. n. 431.
(Coll., n. 846;. The moralists are 04 Cfr. Bizzarri, Collectanea, pp.
246 f.
>Ie
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 890 305
for religious superiors. The Code therefore includes all
superiors, whether they are already in office or to be
afterwards elected. Hence bishops, religious superiors,
directors of seminaries and colleges, vicars general, and
also those who are employed by the Roman Congregations
-
are included.
It is the use of sacramental knowledge that is forbid-
den. Thus a superior, whose knowledge is based solely
on confession, cannot make use of it for purposes of ex-
ternal government; for instance, he cannot remove a
minor official from office ; he cannot remove a pastor
who accused himself of a sin which would render him
unfit for continuing as pastor; he cannot forbid him
the sacraments, if publicly approached, even at the risk
of sacrilege ; he is not allowed to treat him unkindly or
1/1
to withdraw from him his confidence or a post of trust;
he may not change a previous arrangement after hear-
ing confession, even though this arrangement had not yet
been made public.
If a superior has reliable knowledge obtained outside
the confessional, he may, of course, make use of it, pro-
vided that this extra-sacramental knowledge is the motive
of his action.65 If this were not the case, the superior
could not. for instance, remove a priest from the office of
confessor for occult crimes known to him outside of con-
fession.50
53 Thus the moralists in general.
»e S. C. EE. tt RR., July 2, 1627 (Bizzarri, /. c, p. 34).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
D
"-.
306 ECCLESIASTICAL THINGS
NOVICE- MASTERS AND DIRECTORS NOT TO HEAR
CONFESSIONS
Can 891
Magister novitiorum eiusque socius, Superior Semi-
narii collegiive sacramentales confessiones suorum
alumnorum secum in eadexn domo commorantium nc
audiant, nisi alumni ex gravi et urgenti causa in casi-
bus particularibus sponte id petant.
A logical consequence of § 2, can. 890 is that, as far as
possible, every danger of using sacramental knowledge
should be removed. A radical means is to forbid those
D
directly concerned with disciplinary government to hear
confessions. These are masters of novices and their
socii, as well as the superiors or directors of seminaries
and colleges. These, says can. 891, should not hear the
confessions of their subjects who live together with them
in the same house, unless the subjects themselves, for a
grave and urgent reason, and in particular cases, ask them
to hear their confessions. This demand must come freely
and spontaneously and not be effected by insinuation or
advice or threats or coaxing.
This enactment was first made for the superiors of the
seminaries and colleges of Rome. It contained the
phrase: " excepto aliquo raro necessitatis, de quo eius
conscientia oneratur." This may explain the wording of
our text: " in particular cases of urgent and grave neces-
sity."67 Thus the above mentioned superiors — novice
masters are really the superiors of the novices — " are
not allowed habitually to hear the confessions of their
subjects, and the latter are not allowed to ask for it regu-
larly.
M S. 0.. July 5, 1899 (Coll. P. 68 S. O., Dec. 20, 1S99 ' ■ ' *«'•
F., n. 2057). £«'■* Vol. 8, 55).
jle
j , Original fro m
UNIVERSITY OF WISCONSIN
CANON 892 307
The Holy Office, after (Aug. 23, 1899) extending the
decree of July 5, 1899, to religious congregations,09 de-
clared officially (Dec. 20, 1899) that the religious orders
might continue to be governed by the decree of Clement
VIII, which ordained that the novices must confess to
their novice-master, whereas the religious congregations
were to obey the decree of July 5 and Aug. 23, 1899,
which forbade that practice. The Code draws no distinc-
tion between orders and congregations, and consequently
all religious communities must now abide by the law
which forbids the novice-master to be the habitual con-
fessor of the novices who live in the same house with
him or his socius. A travelling novice stopping for a
short time at a religious house, may choose the novice-
master of that house for his confessor. A religious
superior may be confessor of the students who live in
the college if the latter is separated from his own dwelling
place. But if the superior is at the same time the di-
rector of the seminary or college, can. 891 applies to
him, even though he has his living-room in the convent,
for as director he is supposed to live habitually with the
students.
the duty of hearing confessions
Can. 892
a '
§ i. Parochi aliiquc quibus cura animarum vi mu-
neris est demandata, gravi iustitiae obligatione
tcnentur audiendi sive per se sive per alium confes-
siones ndelium sibi commissorum, quoties ii audiri
rationabiliter petant.
§ 2. Urgente necessitate, omnes confessarii obliga-
■• And. Eccl., Vol. VII, 339.
*Ic
J ^ Original fro ni
UNIVERSITY OF WISCONSIN
D
'■-.
308 ECCLESIASTICAL THINGS
tione tenentur ex caritate confcssiones fidelium audi-
endi, et in mortis periculo omnes sacerdotes.
§ 1. Pastors and others entrusted with the care of
souls, by virtue of their office are strictly obliged in
justice to hear the confessions of the faithful committed
to their care as often as the latter reasonably demand to
be heard. This obligation, which is personal, may be
complied with through a substitute.
Here the legislator enjoins pastors in particular to per-
form the office of confessor, albeit not only pastors in the
strict sense of the word, but also quasi-pastors, and all to
whom the care of souls is entrusted (assistants, curates,
etc.), are bound by a strict and grievous obligation to hear
confessions. For their office has been given them for this
purpose, since all the faithful are obliged to confess their
sins at least once a year during the paschal time. There
is then a real obligation resting upon these priests to per-
form what charity, religion and their official character de-
mand of them. And in performing this duty no dis-
crimination is to be made between persons agreeable and
disagreeable or with reference to social, financial, or moral
conditions.80
The text says: " if reasonably demanded." The parish
priest, like everybody else, is entitled to reasonable treat-
ment. Thus to keep order it is reasonable to set apart
certain hours for confession, provided, of course, they are
chosen with due regard to the circumstances of persons
and places. It is also reasonable to choose a heated
chapel, or even the school, if it has a confessional, for
hearing confessions in winter. Needless to add, a zeal-
ous pastor will never refuse to hear confessions even out-
«0 Clement XII. " Cttmpertum/' diet XIV, "Omnium solUcitudi-
Aug. 24, 1734. 19 X, XII; Bene- num." Sept. is, 1744, || 36, 33.
§le
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 892 309
side the hours set by him in case of individual demand or
necessity.-1 An orderly congregation and an orderly
pastor will keep regular hours, and a reasonable- rule will
preserve him from annoyance. The text further says:
" sive per se sive per alium." A pastor's obligation of
hearing the confessions of his people is personal because
attached to his office, which is generally bestowed for per-
sonal qualities (intuitu personae). Hence it is the
pastor's duty to hear confessions unless he is lawfully
prevented. For a legitimate reason, such as hard hear-
ing, or pastoral business, or sickness, or a legitimate vaca-
tion, the pastor may send his assistants to fill his place.
These assistants, too, are obliged, by virtue of the care of
souls entrusted to them, to hear confessions, and their
obligation also is grievous, unless they be employed solely
for saying Mass, or the diocesan statutes, or their letters
of appointment exempt them from the obligation of hear-
ing confessions. In the latter case the assistant could not
be forced by the pastor to hear confessions. Neither may
beneficiaries, who are not obliged either by the rules of
the foundation or by their benefice, be compelled to dis-
charge the office of confessor.
The legislator has foreseen a case which may occur,
and in § 2 adds a new regulation : " In urgent cases all
confessors and in case of danger of death, all priests, are
obliged in charity to hear confessions." An urgent case
is one in which no time is to be lost, for instance, in
epidemics, war, and also, perhaps, when there is a great
concursus populi that could not have been foreseen, or if
those bound in justice to hear confessions are suddenly
and lawfully prevented. In such cases the duty of hear-
ftl Of course, we do not mean to hear confessions in case of con-
that a pastor is obliged to hear tagious diseases; Benedict XIV, Dt
every scrupulous person or drvotula Syn. Dicte., XIII, 19, 6 1
at any time. Pastors are obliged
Q
>Ie
Original fro m
UNIVERSITY OF WISCONSIN
3io ECCLESIASTICAL THINGS
ing confessions obliges otnnes confessarU, i.e., all priests
who possess the necessary jurisdiction. License may be
presumed. As to religious, consult can. 608. Where
there is danger of death, charity compels all priests to
offer their services.
Exempt religious, at home, or in their regular residence,
have to go to confession to the appointed confessors, with
due regard to can. 519. When travelling, they formerly
had to confess to their socius, provided they had one and
he was idoneus. If they had no companion, or the socius
was not idoneus, they could confess to any other priest,
either secular or religious, even though the latter had no
approbatio Ordinarii,*1* i.e., no jurisdiction in the sense
of the Code. Can this practice be continued? The an-
swer, we believe, should be as follows, salvo meliore
iudicio. If this common doctrine is based on law, and
not on mere privileges, the practice cannot be continued,
because it is manifestly against the Code, which requires
express jurisdiction in any case. If, however, the prac-
tice is based on privileges, it may be continued, because
the Code has not done away with all the privileges granted
to regulars; see can. 613. As far as we could gather
from authors, the practice was based upon privileges. Of
course, we suppose this one, too, would have to be sub-
mitted to the inspection and approbation of the S. C. of
Religious.
01* Sec Ballerini-Pidniieri, /. c, p. 328 n. 640; Noldin L c, n. 360.
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
■
CHAPTER II
the reservation of sins
Can. 893.
§ 1. Qui ordinario iure possunt audiendi con fessi ones,
potcstatem concedere aut fcrre censuras, possunt
quoque, excepto Vicario Capitulari et Vicario Generali
sine mandato speciali, nonnullos casus ad suum avo-
care iudicium, inferioribus absolvendi potcstatem
limitantC8.
§ 2. Haec avocatio dicitur reservatio casuum.
§3. Quod attinet ad reservationem censurarum»
servetur praescriptum can. 2246, 2247.
Those who possess ordinary power for granting facul-
ties to hear confession or to inflict censures, are also em-
powered to call certain cases before their tribunal, thus
restricting the power of absolving vested in their inferiors.
However, vicars capitular and vicars general may not
use this power of restricting without a special mandate.
This avocatio or restriction of cases is called reserva-
tion. Concerning the reservation of censures, see can.
2246, 2247.
It is not a mere coincidence that reservation of certain,
especially public and heinous, sins was not generally ap-
plied before the twelfth century, when the penitential
discipline, which, according to our views, was rather
severe from the seventh to the eleventh century, began to
be systematized and organized. Public penance was
of long duration and austere in character, especially for
3"
jle
% ,|y. Original from
UNIVERSITY OF WISCONSIN
3i2 ECCLESIASTICAL THINGS
St
apostasy, homicide, and moeckia. A special kind of
penalty consisted in protracted pilgrimages to some
well-known shrine.** Among these the tombs of SS.
Peter and Paul in Rome were most frequently chosen.
There was a reason for this choice. It not infrequently
happened that the bishops, who at that time administered
the public discipline of penance, were in doubt as to what
kind of penance to impose for a specific crime which was
not mentioned in the penitential books and imposed a pil-
grimage to Rome with the express command that the
penitent present himself before the Pope, in order to await
his verdict. The Pope either sent the penitent back to
his bishop to receive absolution after the penance imposed
had been complied with, or reserved the penance and
absolution to himself. This was the original avocado
criminum graviorum or caxtsarum maiorum, of the exist-
ence of which there are testimonies in the early centuries.
Thus St. Cyprian asked the " Apostolic Lord " what to do
with the apostates of the persecution ; Himerius of Tar-
ragona and Exuperius of Toulouse wished to know of
Innocent I how they should proceed against clerics who
had violated the law of celibacy. Even Cerdo and the
two other Gnostics who were excommunicated by their
bishops sought absolution from the Roman Pontiff. Leo
I and Gelasius I state it as a practice — which was ac-
knowledged by the synod of Sardica, a. d. 341 — that the
Apostolic See took cognizance of the " maiora peccata."
Gregory I did so in the case of Hadrian, bishop of
Thebes." And if we go still further back, we find that
«a Wasserschlcbcn, Bustordnun- ichichte der pSpstl. ReservatfAUe,
gen dcr Abmdl&nd. Kirch*, p. 104; 1868, pp. js fl. The practice com-
" Qui moechalor matris est, III menced in Ireland and England.
annis poenitral cum ptregrinatione «3 Cfr. c. 17, C. 9, q. 3; c. $2*
ferrnni." Sre a1«o pp. 113. 186, C. 16. q. 1.
'Js->, 265. 310. Hausmann, Gr-
gle
f* ^ v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 893 313
o
the leniency of Pope Zephyrin (201-217) provoked
the sarcasm and anger of Tertullian,** because it
ran counter to the rigoristic tendency of a powerful party
that had representatives even in Rome.
All this clearly shows that the Roman Pontiffs were
conscious of their spiritual power. Excommunications
inflicted post factum formed the first layer of reserved
cases. From here it was but one step to the infliction of
such penalties after the crime was committed and the de-
termination of the penalty and the reservation of absolu-
tion for such who would commit such crimes. Here we
have the origin of the distinction between a censura lata a
lege and a censura lata ab hontine. The crime furnished
the guage for determining the penalty. If punished ad
libitum by either pope or bishop after it had been com-
mitted, it was known as a penalty inflicted by the judge
(ab homine); but if the judge merely applied a penalty
already determined by law, it was a censura (generally)
a lege™
To return to the Middle Ages, we said that pilgrim-
ages were frequently imposed as means of atonement for
grievous crimes, and that they were most commonly made
to Rome, the See of the Vicar of Christ. Such pilgrim-
ages were at that time, i.e., in the 10th and nth centuries,
considered the most efficacious and often the only means
of bringing criminals, especially homicides, who then were
rampant, to their senses. Disorder and lack of respect
for authority grew to such an extent that in England,
northeastern France, Germany, and Italy, crimes against
the fifth and seventh commandments were frequently
committed even against the lower and higher clergy. To
counteract this lawlessness, many synods were held in
the countries named, and the Second Lateran Council, in
64 D* Puaicitia, t 5- MHaunano, /. c, p. aa.
Go >gle
f ■ j ^ Original fro rn
UNIVERSITY OF WISCONSIN
3H ECCLESIASTICAL THINGS
a
1139, summed up their enactments in the well-known de-
cree which constitutes the privilegium canonist* This is
the first case of a reservation established by general law."r
From the twelfth to the fourteenth century papal reserved
cases were as yet few, but their number grew considerably
after heresies became more wide-spread. A tentatively
fixed number first appears in the so-called " Bulla
Cocnac" or "Bulla in Coena Domini,11 of which the writ-
ten original dates from 1364, under Urban V. It men-
tions seven cases reserved to the Apostolic See. No ade-
quate distinction between episcopal and papal cases can
be discerned during this period. One rule indeed was
strictly inculcated, viz., that a simple priest, even if he
were a pastor, could not impose penance for grievous sins,
but had to refer all such cases to the bishop or. in more
serious instances, to the Pope. After the " Babylonian
Captivity " the catalogue contained in the " Bulla Coenae "
was enlarged, first under Julius II (1503-1513), then
under Paul III (1536), until Urban VIII, in 1627, put.
the final touches to it. It now contained twenty cases,
and no change has been made in this solemn document
since.98
Modern times required a different treatment, and this
was applied by Pius IX in his Constitution " Apostolxcae
Sedis," of Oct. 12. 1869, which introduced the new penal
code containing reserved censures. This, too, is now
superseded by the Code. Ad quid perditio haect one may
ask. We will answer this question ; for unless we touched
upon it, at least briefly, the reservation of cases could not
88 Can. 15; c. 20. C. 17. Q. 4: the list of grievous crimes was
see this Commentary, Vol. II, p. read on Maundy Thursday and
58 f. those guilty of these sins were dc-
st Hausmann, /. c, p. 66 ff. dared unworthy to receive Holr
68 Ibid., p. 88 ff. The Bull was Communion,
called " in Cotnm Domini," because
ogle
, ,|^ * Originalfrom
UNIVERSITY OF WISCONSIN
CANON 893 315
be understood. Although the cases reserved to the
Roman Pontiff in the first seven or eight centuries appear
to have belonged to the external judiciary or executive
power, yet the juridical basis for the court of conscience
was not only acknowledged, but included, in the plenitude
of the primacy. The very fact that cognizance could or
should be taken of the criminal causae maiores** by the
Supreme Pontiff pre-supposed that the right or power of
absolving was believed to be vested in him. Besides, ex-
communication required a judiciary sentence, which,
though mainly concerned with the external government of
the Church, implied absolution in the true sense of the
word, i.e., for the court of conscience. And in the forum
internum, too, there is a reservation of sins, properly so-
called. That the two fora, like the two powers, papal
and episcopal, were not always clearly distinguished, is
easily understood.
After these preliminary remarks the text of our canon
requires only a few observations.
1. The persons who are vested with the power of re-
serving cases are those who, iure ordinario, are entitled to
grant the power of hearing confession or inflicting cen-
sures. These words emphasize an enactment of the
Council of Trent,70 which, after stating that it is con-
ducive to morality that certain heinous sins should not be
absolvable by every priest, but only by those of the high-
est authority, i.e., the Pope and the bishops, declares; "If
any one saith that bishops have not the right of reserving
cases to themselves, except as regards external polity,
and therefore the reservation of cases does not hinder a
priest from truly absolving from reserved cases, let him
be anathema." n The right of the Pope and the bishops
<
•• Cfr. c. 52, C. 16, q. 1. Ti Ibid., can. 11.
10 Sew. 14, c. 7, dt poenit.
"■
>Ie
k ,1,., Original from
UNIVERSITY OF WISCONSIN
316 ECCLESIASTICAL THINGS
to reserve cases to themselves is based upon the judicial
character of the Sacrament of Penance.7* But this reason
does not explain why simple priests, even though they be
pastors," cannot exercise this right. Therefore another
element must be added: the jurisdiction of the primacy
contains the plenitude of power, and the jurisdiction of
the bishops, even though given immediately by God, de-
pends on the will of the Sovereign Pontiff, who therefore
may communicate it as and when he wills.74 This is re-
quired by the unity of church government and the hier-
archic order. Now the grant of faculties is part and
parcel of that external forum which is ruled by those in
power, and from this simple priests are excluded. By
that we do not mean that reservation belongs solely to the
external polity. For as the power of forgiving and re-
taining sins is an outgrowth of jurisdiction, so too, is
reservation.
A third element is the need of determining which sins
are heinous and extraordinarily grievous. This power
certainly belongs to him who is the supreme judge in mat-
ters of faith and morals i.e., to the magisterium ecclesi-
asttcutn, from which simple priests, as such, are excluded.
Hence the power of reserving cases must be vindicated :
(i) to the Pope, because of the plenitude of his power
over the whole Church and every part of it ;
(2) to the bishops, each for his respective territory.
As this prerogative belongs bo them as Ordinaries, it
might also be claimed by the vicar- general, were it not
that positive law makes the valid and licit exercise of this
power dependent upon the special mandate of the bishop.
Concerning the vicar capitular or administrator, our
■"■
12 Cfr. Pohle-Preuss, The Sac the heresy of Wiclif and Hut,
raments. Vol. Ill, p. 1*9. n. 25 (Deazingcr, n. 529).
7a Errors of those suspected of T4 palmieri, De Poenilentis, p.
179.
ogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 893 317
text says that he, too, needs a special mandate to exercise
the power of reserving cases. But from whom ? From
the Apostolic See. At least this seems to be the most
reasonable answer, as the chapter could not possibly grant
that power. Benedict XIV says that though the power
of granting indulgences flows from jurisdiction and not
from the order, yet it is an extraordinary power attached
to the episcopal dignity.76 The same reasoning may be
applied here by analogy, which in this instance is per-
fectly legitimate.
(3) Although this is true concerning vicars, it has been
decided, and is expressly stated in can. 896, that exempt
religious superiors enjoy the power of reserving cases
among their own subjects. These superiors possess
quasi -episcopal jurisdiction;78 no other superiors are
mentioned, nor may this power be extended to others, as
the text says : " those who. sure ordinario, are entitled to
grant faculties."
Febronius and his followers pretended that the right
of reserving cases had devolved from the bishops to the
Pope, and was based on mere custom, which might change
with times and circumstances, and even be reasonably
abolished.77 However, this is not only perverting his-
tory, but is dogmatically wrong. The Pope's right of re-
serving cases existed before that of the bishops, who
would surely not have applied for faculties to the Apos-
tolic See had they not acknowledged a higher power in St.
Peter. Of course, we do not mean to deny that the prac-
tice of reservation developed according to the exigencies
ot the times.
TBZJr Syn. Dioec, II, 9, 7; cfr. tanea, p. 346); S. C. C, June 1584;
c. 13, X, V, 31. April 1587 (Richter, Trid., p. 85.
Tfl Clement VIII, " Sanctissimui," n. 1); Benedict XIV, De Syn.
M»y 36, 1593; S. C. EE. et RR.. Dioec, V, 4, a.
Sept -M , 1624 (Biuarri, Collte- T7 Prop. Synodi PutorUn. dam.
jle
£ " -. v -.!,» ' Original from
UNIVERSITY OF WISCONSIN
318 ECCLESIASTICAL THINGS
only one sin properly reserved to the holy see
Can. 894.
Unicum pcccatum ratione sui reservatum Sanctae
Sedi est falsa delatio, qua sacerdos innocens accusatur
de chmine sollicitationis apud iudices ecclesiasticos.
Only one sin is, as such, reserved to the Holy See, to
wit, falsely accusing an innocent priest of the crime of
solicitation before the ecclesiastical court.
Solicitation here is understood as an external and
grievously culpable provocation to a sin against the sixth
commandment, perpetrated in the confessional, or in the
act of confession, even though the confessor has no juris-
o
diction or does not impart absolution, and even though
the provocation may not be effective. Solicitation may be
made to a person of either sex.76 If a person not solicited
would thus accuse an innocent priest of solicitation
in the ecclesiastical court, his crime would be reserved to
the Holy See, even though no censure were attached to
it." Neither ignorance nor doubt as to the law of reser-
vation or the fact of the grievousness of the sin of false
accusation, excuses from this reservation, which is also
incurred if the accusation to the ecclesiastical court is
made by an intermediary.80
The ecclesiastical court is the Ordinary of the diocese
or the Inquisitors, where these still perform their func-
tions." The accusation may also be made to the diocesan
chancellor or to the rural dean, or, in the case of an assist-
in the " Auetortm fidei," Aug. 28. for soliciting a person afterward a ;
1794, n. 47 f. (Dcnzinger, n. 1407 Lehmlcuhl, II, n. 975 f.
f). T0 B"t there it a censure at-
7* S. O., Feb. II, 1661. It is tachcil to it; see can. 2363.
not solicitation if a priest abuses *o Benedict XIV, " Sacromentum
knowledge gained in the confessional Pvcnitentiac," June 1, 1741. | 3.
81 Ibid. S I.
jle
,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 895 319
ant, to the pastor; but if it is made orally to one of these,
it should be put into writing and immediately forwarded
to the Ordinary.82 After accusation has been made in
this formal way, the sin is committed and reserved.
Note that the accusation must concern a priest. Conse-
quently, to accuse a cleric who heard confessions either in
jest, or by mistake, or for the sake of practice, would not
be a reserved case. It would be a reserved case, how-
ever, to falsely accuse a priest, even though he had no
faculties for hearing confession. The intention of
calumniating the priest need not be foremost in the ac-
cuser's mind,88 but may be merely concomitant.
This law binds all Catholics and concerns all Catholic
o
priests of whatever rite."
'ITiis crime is specially reserved to the Holy See,
and is never included in the faculties granted for absolv-
ing cases reserved to the Apostolic See.80 Hence, to ob-
tain absolution from this sin, even if the censure was not
incurred or has been removed, application must be made
to the S. Poenitentiaria, either personally or through the
confessor. Fictitious names should be used in the petition.
reservation to be made at the synod
Can. 895
Locorum Ordinarii peccata ne reservent, nisi, re in
Synodo dioecesana discussa, vel extra Synodum auditis
Capitulo cathedrali et aliquot ex prudentioribus ac
probatioribus suae dioecesis animarum curatoribus,
D
82 Can. 1936. S. O., June 13. 1710; S. C. P. F.t
ua Noldin, /. c, n. 393, seems to Aug. 6 1885, n. a (Coll., nn. 279,
over-emphasize the fact of calumny. 1640).
84 Benedict XIV, " Etsi pasto- 85 S. O., June 27, 1866 {Coll.
rolii," May 26, 1743, I IX. n. V; P. F., n. 1294)
jle
k ,|,, Griginalfroni
UNIVERSITY OF WISCONSIN
320 ECCLESIASTICAL THINGS
vera reservations necessitas aut utilitas comprobata
fucrit.
Local Ordinaries should not reserve sins, unless the
matter has been discussed at a diocesan synod, or con-
sultation with the Cathedral Chapter and some of the
more prudent and experienced directors of souls, has
made evident the necessity or utility of a reservation.
Benedict XIV explains the reasons why reservations
should be made at the diocesan synod. First, he says,8*
because a synod offers the best opportunity for discussion,
since as a rule many worthy and experienced priests are
present on that occasion. Secondly, in order that the
pastors who enjoy jurisdiction may have no reason to
complain of an undue restriction of their power. For
they are supposed to be present at the synod and there-
fore have a chance to object or demand more solid reasons
for an intended reservation. Lastly, because a reserva-
tion made at the synod is more in accord with a condition
of stable and permanent law than one made by the bishop
alone.
No doubt these reasons prompted the Holy Office to
issue the decree of July 13, 1916, which furnished the
text for our canon. fiT The best occasion, therefore, for
establishing reserved cases is at a diocesan synod ; but, as
Benedict XIV adds, such a measure must be taken with
great caution lest the sacramental seal be endangered.88
Another way of setting up such cases is after obtaining
the adince (not consent) of the cathedral chapter, or, with
us, of the diocesan consultors*0 The bishop must call a
meeting of these because the text says: capitulum. To
this meeting he may also call other priests who have
Sfl De Sjw. Dioec, V, 4. 3. 88 Dr Syn. Dioec, V, 4, 3.
87,4. Ap. S., VII, 313. 80 Can. 4*7.
§le
% ,1,., Original from
UNIVERSITY OF WISCONSIN
—
CANON 896 321
charge of souls. A decree of 1602 says that men dis-
tinguished by piety and learning should be called, in order
to examine and discuss the matter thoroughly.00 Our
text reads: anitnarum curatores, a general term which is
evidently used to exclude the idea that only pastors are to
be invited. Assistants, confessors of religious, mission-
aries, etc., may be heard, provided they belong to the
" more prudent and tried " class, and are or were actually
engaged in the care of souls.
exempt religious superiors
Can. 896
■
Inter Superiores religionis clericalis exemptae unus
Superior generalis, ct in monasteries sui iuris Abbas,
cum proprio cuiusque Consilio, peccata, ut supra,
subditorum reservare possunt, firrno praescripto can.
5*8, § 1, 519.
Among the superiors of exempt clerical institutes, the
superior general, and in autonomous monasteries the Ab-
bot, with his counsellors, may reserve sins of their sub-
jects, with due regard, however, to can. 518, § i, and to
can. 519.
Clement VIII and a decree of the S. C. of Bishops and
Regulars had emphasized, not the power of exempt re-
ligious, for this follows from exemption itself, but the
need of prudence and moderation in reserving cases, the
number of which was reduced to eleven,81 but is still more
restricted by can. 807.
at
The superiors to whom can. 896 applies are those of
-
•OS. C. EE. rl RR., Nov. ."".. May .-6, 1593; S. C. EE. it RR..
1602 (Bizzarri, Collectanea, p. 13 Sept 21, 1614 (Bizzarri, /. c, p.
f.). 246 f.).
II Clement VIII. " Sauetisrimus."
>Ic
Original from
UNIVERSITY OF WISCONSIN
322 ECCLESIASTICAL THINGS
exempt clerical orders or congregations. Superiors of
exempt lay or of non-exempt clerical congregations do
not enjoy the power of reserving cases. For the latter
class the Ordinary may establish reservations, as also the
Apostolic See when approving the Constitutions.
In centralized religious orders the superior general
alone can reserve cases. In doing so, he must proceed
like the bishop, i.e., consult with his counsellors and, if he
wishes, with others who are experienced in the direction
of souls. It is true he is not bound by their advice, for
the text of can. 895, to which our canon refers, does not
require their consent. But it would be folly and a
grievous transgression of a serious law in a serious mat-
ter not to obtain the advice of the counsellors.
a
The abbot of an autonomous monastery must proceed in
the same manner. By the way it may be noted that
neither the Abbot Primate of the Benedictine Order, nor
the Abbot President of each congregation, has any power
with regard to reserving cases. *
Our canon, lastly, draws attention to can. 518, § 1, and
can. 519. The former prescribes, in accordance with an
enactment of Clement VIII, that a number of confessors
shall be appointed in each house for absolving from re-
served cases. Can. 519 grants to any priest approved by
the Ordinary the right of absolving any religious from
cases reserved by the religious superior."
• i
B
■
number and quality of reserved cases
Can. 897
3
Casus reservandi sint pauci omnino, tres scilicet vel*
ad summum, quatuor ex gravioribus tantum et atroci-
oribus criminibus externis specificc determinatis ; ipsa
•2Cfr. Vol. II, p. 15a ff. of this Commentary.
Q
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANONS 897-898 323
vero reservatio ne ultra in vigore maneat, quam ncccsse
sit ad publicum aliquod inolitum vitium exstirpandum
et collapsam forte christianam disciplinary instauran-
dam.
Can. 8q8
Prorsus ab iis peccatis sibi reservandis omnes
abstineant quae iam sint Scdi Apostolicae etiam rations
censurae reservata, ct regulariter ab iis quoque quibus
censura, etsi nemini reservata, a iure imposita sit.
The cases to be reserved shall be few, namely, three, or
at most four, of the more grievous and atrocious external
crimes, specificially determined. The reservation itself
should not remain in force longer than is necessary to
uproot some inveterate public crime and to restore Chris-
tian discipline.
But Ordinaries, and religious superiors as well, shall
refrain from reserving sins already reserved to the Holy
See by reason of the censures attached to them, and, as a
rule, shall not reserve sins which the law has laid under
censure, even though this censure be not reserved to any
one in particular.
These two canons define the number and quality of the
sins that may be reserved and the purpose of reserva-
tion, and declare which sins should not be made reserved
cases.
1. The number is reduced to four, at the highest, be-
yond which neither Ordinaries nor exempt religious su-
periors may go. Rome had more than once on previous
occasions declared that the number of reserved cases
should be very small ( paucissimos) and selected with
great discrimination, lest reservation result in spiritual
injury rather than benefit It also enjoined that the con-
{ '.vmiIp Original from
jrVjOOgK. UNIVERSITY OF WISCONSIN
324 ECCLESIASTICAL THINGS
St
o>
ditions of each province and the character of the people
should be taken into consideration."
2. The quality of the sins that may be reserved is de-
scribed by four attributes : they must be particularly
grievous, atrocious, external, and specified crimes. Al-
though no definite rule can be formulated by which the
gnevousness and hideousness of a crime could be exactly
determined, yet the habitual proclivity of a certain na-
tion to a certain orime would be a sufficient reason for
reserving tha«t sin in order to break their obstinacy by
making it difficult to obtain absolution.9* Hence, as
stated above, local conditions should be studied. No
reservation should be attached to sins from which no
o
absolution is given except under the condition of restitu-
tion, or to sins into which ordinary persons often fall.
"In peccatis etiam camalibus reservandis multd utantur
circumspectione, propter periculum scandalorum in its
maxime personis, in quas ob accessum ad confessarios
extraordinarios, vcl frequentem reditum ad ordinarios,
suspicionis aliquid cadere potest." m
Broadly it may be stated that sins which are grievous
by reason of their very nature or betray an atrocious
character on account of the damage done to ecclesiastical
discipline and the welfare of souls, may be reserved.
This is confirmed by the addition of the word external.
For although, as some theologians say, internal sinful acts
may in summo iuris rigore be reserved, yet it has never
been Roman practice to reserve merely mental sins, for
instance, internal heresy. pf Note, however, that external
is not the same as notorious or public. A sin may be
83 S. C. EE. tt RR., Jan. 6, 1601; 83 S. C. EE. et RR., Nov. 26,
Nov. 26, iyoa (Bizrarri. I. c, p. 1603 (Bizrarri, /. c„ p. 14).
ij ft\>. 08 Benedict XIV, /. c, V, 5l 5.
94 Benedict XIV, De Syn. Dioec.
X, S. 4-
jle
/"^ ^ v iL-. Original from
UNIVERSITY OF WISCONSIN
CANON 898 325
committed externally, yet be unknown to any one except
the person who committed it. A crime, however, is al-
ways supposed to be external, for it is a delictum pub-
licum, at least in the wider sense.
The Code requires that the crimes be specified or
specifically determined. As sins are specified by their
opposition to certain definite virtues or laws, and by the
different objects comprised by the various virtues, so
also should reservation be specific." The quality and
mode of a crime determine its specific nature and also
the manner of reservation, whether or not under censure.
Thus adultery, if it became rampant in a province, or
diocese, or city, might become a matter for reservation;
also incendiarism, burglary or bank-robbing.
The text says further that reservation should cease as
soon as its purpose is attained. This is the case when an
inveterate vice is extirpated and Christian discipline re-
stored. Here the principle holds goods : Reservation, if
uselessly protracted, might do more harm than good.
3. Canon 898 distinguishes between sins under censure
reserved to the Holy See and sins under censure reserved
to no one in particular. From reserving sins of the first
kind, Ordinaries and religious superiors should abstain
entirely; from reserving sins reserved under censure to no
one they should refrain as a rule. This law rests on the
regula iuris 54 in 6° : " Qui prior est tempore, potior est
iure" provided, of course, that all other things are equal.88
As the common law is supposed to be prior to any par-
ticular law or jurisdiction, inferiors should cede power to
the superior. But the cases reserved to no one suffer an
exception, for the text says: as a rule (regulariter).
87 Marc, Institut, Moral. Alpkons., 96 Reiffenstuel, In Rrg. Juris, 54
1898, I, n. 324. ia 6o, n. 2.
>Ic
/-.,., ,L» Original fro m
UNIVERSITY OF WISCONSIN
326 ECCLESIASTICAL THINGS
" Frequency, scandal or another reason " ,B may advise
reservation by the Ordinary besides the one imposed by
common law. and in that case such a double reservation
would be admissible.
It may be helpful to mention the cases which are re-
served under censure.
D
I. Specialissimo modo reserved to the Apostolic See
axe:
l°. Species consecrates desecrantes (can. 2320) ;
2°. Violentas tnanus iniicientes in Romanian Ponti-
tifieem (can. 2445) ;
30. Absolventes vel absolvere Hngentes complicem (can.
I 2367);
4°. Directe inolantes sigillum confessionis (can. 2369).
II. Special! modo reserved to the Apostolic See arc :
E
i°. Apostatae, haeretici, sehismatici (can. 2394) ;
2°. Edentes, defendentes, legentes, retinentes, libros
eorum, qui haeresim vel schisma propugnant (can. 2318) ;
30. Laici celebrationem Missae vel eonfessionem sim-
ulantes (can. 2322) ;
4°. Violentas manus iniicientes in Cardinales, Legatos
Ap. Sedis, vel Episcopos (can. 2343) ;
50. Provocantcs ad concilium generale (can. 2332) ;
6°. Recurrentcs ad laicam potestatem ad litteras apos-
tolicas smpediendas vel acta quaelibet (can. 2333) ;
7°. Impedientes immunitatem ecclesiasticam (can.
2334) :
8°. Violantes privilegium fori quoad praelatos superi-
ores (can. 2340) ;
90. Usurpantes vel detinentes bona ad Ecclesxam Ro-
manam pertinentia (can. 2345) ;
•■S. C. EE. et RR.. Nov. 26, 1602 (Bizzarri. /. c, p. 14).
*Ic
■ I > Original from
UNIVERSITY OF WISCONSIN
CANON 898 327
io°. Falsarii litterarum apostolicorum (can. 2360) ;
ii°. Falso denuntiantes sacerdotcm innocentem de sol-
hettattonts crtmine (can. 2363).
a
1
III. Simplicitcr reserved to the Apostolic See are:
i°. Quaestum facientes ex indulgentiis (can. 2327) ;
2°. Nottten dantes sectae massonicae etc. (can. 2335) ;
30. Absolvere praesumentcs ab excomtnunicatione Sedi
Apostolicae specialissimo vel speciali modo reservata
(can. 2338, § I);
4°. Impendentes auxiliutn vel favorem excommunicato
vitando in delicto excommunicationis (can. 2338, no. 2) ;
5 ■ Violantes privilegium fori in praelatos episcopis in'
feriorcs (can. 2341) ;
6°. Clausuram papdem violantes et moniales exeuntes,
(can. 2342) ;
7°. Duellutn perpetrantes et cooperantes (can. 2351);
8°. Qui invalidutn matrimonxum attentant ex ordine
clericorum vel religiosorum et personae cum ipsis eontra-
hentes (can. 2388).
■
9
IV. Nemini reservatae are the following excommun-
ications :
1°. Qui ausi fuerint mandate tradi sepulturae ecclesi-
asticae contra can. i2$o praescriptum (can. 2339) ;
2°. Alienantes absque beneplacito apostolico (can.
2347) ;
5°. Cogentes ad statum clericalem vel religiosum (can.
2352)-
V. Cases reserved to the Ordinary by law :
i°. Those mentioned under can. 2319 concerning mar-
riage before a non-Catholic minister, etc. ;
2°. Conficientcs falsas reliquias (can. 2326) ;
G I Original from
008IL UNIVERSITY 0FWI5C0NSIN
328 ECCLESIASTICAL THINGS
3°. Violentas manus iniicientes in clericos (can. 2343, §
! 4);
4°. Procurantes abortum, matre non excepta, effectu
secuto (can. 2350);
50. Professi simpliciter matrimoniutn contrahentes et
personae contrahentes cum ipsis (can. 2388) ;
6°. Apostata religiosus, qui pertinct ad ordincm ex-
emptum vcl non exemptum, si pertinct ad religionetn ex-
cmptam, cxcommunicatio resen'ata est Supcriori religioso
tnaiori (vcl abbati monasterii $ui iuris) (can. 2385).
This conspectus shows who possesses the power of re-
serving and which cases should not be reserved, because
already reserved by law. But those mentioned under IV
as " nemini reservatac" may, if frequency or scandal
should necessitate such a measure, be reserved also by the
Ordinary, as such. The cases placed under that heading
are worthy of close inspection, especially at the time of
canonical visitation of religious institutes.
It may also be opportune to indicate some cases which
the Code does not expressly lay under censure, but in
regard to which it explicitly states that the Ordinary may
punish the transgressors "also by censure" (etiam cen-
sure).
i°. Those who trade in Mass stipends (can. 2324) ;
20. Those who pertinaciously refuse to obey the legiti-
mate injunctions of the Roman Pontiff or of the Ordi-
nary (can. 2331) ;
30. Those who have received legacies or bequests or
donations for pious or charitable purposes and refuse to
comply with the obligation of applying them to said pur-
poses (can. 2348) ;
40. Those who live in simultaneous bigamy (can. 2356).
In all these cases Ordinaries would act in conformity
with the Code if they reserved them to themselves, even
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gle
CANON 898 329
by previously promulgating the censure. Only one rule
they should keep in view : the necessity or utility of res-
ervation, and after the evil has been cured, they should
remove the censure. A very opportune measure was
taken by the bishops of Holland in their Lenten Pastoral
for 1919. They forbade Catholics to join or remain in
any socialist or anarchistic union or club, under penalty
of refusal of absolution. The same penalty was threat-
ened against those who regularly read anarchistic or
socialist literature, or who professed subversive doctrines.
This joint procedure was perfectly legitimate and may
be justified on the basis of can. 2335.
If we may venture to suggest the cases which exempt
religious superiors may eventually reserve, the following
taken from the decree of Clement VIII, in a modified
form, might be proposed:
i°. Grains transgressio voti paupertatis, amounting to
a sum which formerly was reserved to the S. Peniten-
tiary, say, about $50.
20. Peccatum contra votum castitatis perpetratum cum
religiosa femina, vel etiam repetita sodomia, vcl con-
cubinatus.
30. Qui Romano Pontifici vel Superiors religioso aliquid
legitime praecipienti vel prohibenti secundum regulam et
constitutiones in materia gravi, e.g., missionis, scholac. of-
ficiorum, non obtemperant pertinaciter ct cum scandalo
aliorum sive extraneorum sive religiosorum.
40. Falsificatio manus aut sigilli uflicialium monasterii
aut conventus, aut littcrarum vel aetorutn ecclesiasticorum
tarn publicorum quam privatorum.
oogle
/■"* ^ s ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
330 ECCLESIASTICAL THINGS
promulgation and absolution of reserved cases
Can. 899.
§ 1. Statutis semel reservation! bus quas vere neces-
sarias aut utiles iudicaverint, curent locorum Ordinarii
ut ad subditorum notitiam, quo meliore eis videatur
modo, eaedem deducantur, nee facultatem a reservatis
absolvendi cuivis et passim impertiant
§ 2. At huiusrnodi absolvendi facultas ipso hire
competit canonico poenitentiario ad normam can. 401,
§ 1. et habitualiter impertiatur saltern vicariis foraneis,
addita, praesertim in locis dioecesis a sede episcopal!
remotioribus, facilitate subdelegandi toties quoties
confessarios sui districtus, si et quando pro urgentiore
aliquo determinate casu ad cos recurrant.
§ 3. Ipso iure a casibus, quos quoquo modo sibi
Ordinarii rcservaverint, absolverc possunt turn paro-
chi, aliive qui parochorum nomine in iure censentur,
toto tempore ad praeceptum paschale adimplendum
utili, turn singuli rnissionarii quo tempore missiones
ad populum haberi contingat
§ 1. Cases reserved for reasons of necessity or utility
should be brought to the knowledge of their subjects by
the Ordinaries, who should not grant indiscriminate fac-
ulties to absolve from them.
This rule was made by the Council of Trent x and in-
sisted upon by the S. Congregation.2 But a distinction
must be made as to the manner in which the cases are
reserved. If they are reserved at a diocesan synod,
promulgation is supposed to be effected after the Ordi-
nary has put his signature to the synodal acts, and no fur-
■"■
I S«m. 14, c. 7, dt poenit.
X S. C EE. el Kit. Nov. a6, 160a (Bizzarri, f. c, p. 14).
;Ic
, ,| , Original fro rn
UNIVERSITY OF WISCONSIN
CANON 899 331
ther publication is required, unless a clause to this effect
appears in the synodal acts.8 If the cases were reserved
at a meeting of the consultors, they must be brought to
the notice of the clergy4 by an official circular letter,
issued by the Ordinary or his chancellor.
The text furthermore says that faculties for absolving
from reserved cases should not be granted indiscrimi-
nately. To do so would render reservation ludicrous and
frustrate its purpose.
§ 2. The Canonicus Poenitentiarius has by law the
faculty of absolving from the cases reserved to the
bishop. This canon penitentiary may belong to a cathe-
dral or to a collegiate church, both of whom enjoy the
power of absolving by virtue of their office and of law,
which is expressed in this canon as well as in can. 401,
no. 1. Besides, the legislator wishes that the faculty of
absolving from these reserved cases should be luxbitnally
delegated to the rural deans, who should also be given the
power of subdclegating toties quoties confessors of their
districts, especially in parishes distant from the episcopal
see, whenever these confessors have recourse to the deans
for individual and urgent cases.
Note well the difference between the faculties habitu-
ally given to the rural deans and the faculties given to
confessors in distant parishes. The latter must be ap-
plied for in each single case, and can be granted only if
the case is urgent. The application must be sent to the
rural dean either in writing or orally ; by telephone only
if there is an absolute necessity and no violation of the
sacramental seal need be feared. Any pastor or assist-
ant, in fact, any confessor, may foresee the cases, and
■"■
3 See can. 36a. pie, for the term " tubditi " com-
4 The clergy should, therefore, prises all the faithful,
make these cases known to the peo-
jle
j , - Original from
UNIVERSITY OF WISCONSIN
332 ECCLESIASTICAL THINGS
hence apply for the faculty before going into the confes-
sional. One thing is certain, viz., that the faculty of
absolving from cases reserved to the Ordinary should not
be imparted habitually to all pastors, or curates, or assist-
ants, but only in individual cases. Habitual faculties are
to be given only to the rural deans.
The question may be asked: Which are the reserved
cases from which the Poenitcntiarii (by law) and the
rural deans (in virtue of habitual faculties) may absolve?
The answer is not as evident as one might wish, and it is
therefore with some misgiving that we state our own view.
1°. It is certain that the cases are included which the
Ordinary has reserved to himself, to wit, the three or four
cases exclusive of the six mentioned in the preceeding
canon under V.
2°. The Canon Poenitentiarius may absolve, not only
from the three or four cases reserved by the Ordinary
to himself, but also from the six cases mentioned under V.
This we deduce from the wording of can. 401, § 1, where
he is said to have jurisdiction by law to absolve from all
sins and censures reserved to the bishop (episcopo reser-
vatis) and from can. 899, § 2: "ipso iure ordinario cotn-
petit."
30. The bishop may habitually delegate the rural deans
to absolve, not only from the three or four cases he has
reserved to himself, but also from the six cases mentioned
under V as reserved to the Ordinary by law. For can.
2253 says clearly that the one to whom a censure is re-
served by law, or his delegate, may absolve from the same.
40. It matters not whether the Ordinary reserves his
own cases under censure or not, or whether he reserves
censures nentini reservatae.
§ 3 concerns pastors and all who, in law, go by the
name of pastors, hence also missionaries. Pastors are de-
jle
«C* ^ . ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 899 333
fined in can. 451, where it is laid down that in law those,
too, go by the name of pastors who govern quasi-parishes
where the hierarchic order is not completely established
or restored, and likewise vicars of parishes who are en-
dowed with full parochial powers.* These are further
determined in can. 471-^473, viz., the actual pastors of in-
corporated parishes, vicars ad interim, and administrators.
Concerning temporary substitutes there might perhaps be
a doubt. Yet if the last clause of can. 474 is not ap-
plicable, i.e., if neither the Ordinary nor the pastor has
excepted any parochial right, we believe that they may
safely be called pastors under the law. But assistants or
curates are not comprised here, because they do not go by
the name of pastors in law.
Missionaries are those who give temporary missions to
the people. Retreat masters are not included here, un-
less they give retreats to the whole parish or perhaps to a
class or group of members, say, young men or women.
All these may absolve by law from any case which the
Ordinary has reserved to himself in any shape or form,
during the whole time set for fulfilling the paschal duty.
Missionaries enjoy the same power, also by law, during
the time of a mission. The cases are those which the
Ordinary has reserved to himself, i.e., the three or four
which are reserved not to or by the Apostolic See, or by
law to the Ordinary.* But it does not matter — quoquo
modo — whether they are reserved as simply reserved
cases, or under censure. By law signifies that no delega-
tion or express concession is needed. Hence any mis-
sionary who has received express jurisdiction from the
Ordinary for hearing confessions in the diocese or parish
I See our Commentary, Vol. II, VIII, 314): " Quanis Ordinary
p. 559 ff. orum rcservatio ipso iurt," etc.
eS. a, July 13, 1916 (A. Ap. 5..
jle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
N
■
334 ECCLESIASTICAL THINGS
where he is to give a mission, may absolve from the cases
reserved by and to the Ordinary, even though this fac-
ulty is not mentioned in the general (but express) grant
of faculties. Pastors, and all those who go by the name
of pastors, may licitly and validly absolve from cases re-
served to and by the Ordinary by the very fact that they
hear confessions during the paschal season. If this
season is extended by the Ordinary, e.g., from Laetare
to Trinity Sunday, they may during this whole period
make use of the power granted by law without further
application to the Ordinary. They may also absolve the
same persons several times during this period, for the
stress is on the time, not on the number of absolutions.
when reservations cease or lose their force
Can. 900
Quaevis rescrvatio omni vi caret :
1. Cum confessionem per a gun t sive aegroti qui
domo egredi non valent, sive sponsi matrimonii ineundi
causa ;
a.0 Quoties vel legitimus Superior petitam pro aliquo
determmato casu absolvendi facultatem denegaverit,
vel, prudenti confessarii iudicio, absolvendi facultas
a legitimo Superiore peti nequeat sine gravi poenitentis
incommode* aut sine periculo violationis sigilli sacra-
men i a 1 is ;
3.0 Extra territorium reservantis, etiamsi dumtaxat
ad absolutionem obtinendam poenitens ex eo disces-
serit.
a
All reservations cease or lose their force :
i°. When those who go to confession are sick and can-
not leave the house, or if they are about to be married ;
oogle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 900 335
St
20. As often as the lawful superior refuses a faculty-
asked for in a particular case, or when, according to the
prudent judgment of the confessor, the faculty cannot be
asked of the lawful superior without great inconvenience
to the penitent or without danger of violating the sacra-
mental seal ;
3°. Outside the territory of the one who has reserved
the case, even though the penitent has repaired thither
solely for the purpose of obtaining absolution.
" Quaevis reservation says the Code, whereas the de-
cree of the Holy Office from which the text is taken
adds: "quaevis Ordinariorum reservation which is cer-
tainly the meaning of this canon ; we can hardly believe
that papal reservations cease under the conditions men-
tioned, because papal reservations with one exception (see
can. 894), all have censures attached, for the absolution
of which canons 2253 f. must be consulted.
1. The aegroti, or sick persons, are not further de-
scribed, and hence we may assume that any kind or degree
of sickness suffices, provided only it detains the patient at
home, even though it exists only in the imagination, as is
sometimes the case with hysterical women. Parties be-
fore marriage are also benefited, but it must be ineundi
causa, i.e., for the purpose of marriage. We would not
exclude the case of a marriage that has to be rectified as
to its validity. The absolution from censure mentioned
in can. 2319, § if n. 1, cannot be imparted because it is
reserved to the Ordinary by law, not by himself.
2. The second number mentions refusal of the lawful
superior to grant the faculty. Whether this refusal be
reasonable or unreasonable, formal or informal, matters
not for the purpose in question, for the confessor is the
best judge whether the persons arc deserving of absolu-
tion, and authority has been safeguarded by the petition.
oogle
k .,1,., Original fro rn
UNIVERSITY OF WISCONSIN
336 ECCLESIASTICAL THINGS
Another reason which causes a reservation to cease is
the inconvenience of the penitent. But this must be
great. A little wait could not be called a great incon-
venience for city folk. But if one living in the country
would have to call again, this might be a great incon-
venience. It might also be a great inconvenience to come
again for a man or woman who is known as a rare church-
goer ; for in that case gossip might easily result.
The danger of violating the seal of the confessional is
another reason for the cessation of a reservation. This
would be present if the person who committed the re-
served crime were known to the Ordinary, or if cir-
cumstances might point to his identity, or if he would be
the only one to go to confession (and wanted to receive
Holy Communion), while the confessor had to leave the
confessional and go to the telephone. The confessor
should prudently judge whether the seal is endangered in
any case.
3. The last number applies the benefit of cessation even
to the case formerly called in fraudem legis. A person
who leaves the diocese where he knows that his case is
reserved, and goes to another diocese where the case is not
reserved, may be absolved validly and licitly. This is a
change of legislation, as formerly such an absolution was
invalid.* But peregrini are bound by the reservations of
the place in which they confess (Com. Interpret. C. I. C,
Aug. 17, 1919; see Irish Eccles. Record, XIV, 330 K
■"■
7 Cement X, " Suferna." June », 1670, | 7; S. C. C, Sept. 16,
1649 (Richtcr, Trid., p. 85, n. 8>.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
N
■
CHAPTER III
THE SUBJECT OF PENANCE
matter and integrity of confession
Can. 901.
Qui post baptismum mortalia perpetravit, quae
nondum per claves Ecclesiae directe rcmissa sunt,
debet omnia quorum post diligentem sui discussionem
conscientiam habeat, confiteri et circumstantias in con-
fessions explicare, quae speciem peccati mutent.
Can. 902.
Peccata post baptismum commissa, sive mortalia
directe potestate clavium iam remissa, sive venialia,
sunt materia sumciens, sed non necessaria sacramenti
poenitentiae.
Whoever after Baptism has committed mortal sins not
yet directly forgiven by the keys of the Church, must con-
fess them and explain the circumstances which may
change the species of sin. The accusation must be pre-
ceded by a careful examination of conscience. Necessary
matter, therefore, are mortal sins not yet forgiven,
■
whereas sins committed after Baptism, whether grievous
but already directly forgiven by the power of the keys, or
only venial, are sufficient matter for the Sacrament.
Like every other sacrament, Penance consists of matter
and form. The latter, according to the teaching of the
337
oogle
Original from
UNIVERSITY OF WISCONSIN
338 ECCLESIASTICAL THINGS
a
Church,1 is the act of absolution. As to the matter,
there is a controversy in regard to the proper constitu-
ents, but it is safe2 to say that the acts of the penitent, to
wit, contrition, confession and satisfaction, are, as it were,
the proximate matter of the sacrament, while the sins are
the materia remota or circa quant.
■
Can. 901 states that all mortal sins committed after
Baptism must be confessed. As Penance is applied by a
judicial act, it follows that to the sacred tribunal must
be submitted all those sins which constitute matter for
juridical cognizance, in other words, all mortal sins, be-
cause these prevent man from attaining eternal salvation
and make him an object of divine wrath. It was these
sins which Christ intended when He instituted this sacra-
ment and which He commanded to be directly submit-
ted to the power of the keys. Directly to submit these
sins to the power of keys means to accuse oneself of them
before the appointed judge and to receive absolution from
him by an exercise of jurisdiction.8 Indirectly mortal
sins may be forgiven concomitantly, as when a penitent
omits a sin through inculpable ignorance, or forgetful-
ness, or inability, or when a confessor, for weighty
reasons, imparts absolution though not empowered to do
so.4 No one mortal sin can be forgiven without the
others.
Can. 901, then, requires that confession be integral, i.e.,
comprise all mortal sins according to number and
species. The number the penitent is obliged to state as
far as he can recollect it, and if the exact number cannot
be given, he should say " about," or " at least," or u more
D
"\
1 Decretutn pro Arm. (Drnzingrr. s Palmirri. De Poenitentia. p. 99
n. 594); Trid.. sen. 14, c. 3. de ff; p. 359 ff-
pornit. 4 Schielcr-IItuser, Theory and
2 Cf r. Pohle-Preuss, The Sacra- Practice, p. 41.
mtuts. Vol. Ill, p. 76 B.
ogle
, .J,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 902 339
at
or less." 8 Accuracy is also required in stating the
species* for it is the species which determines the nature
of a sin, whether it is opposed to a special virtue, or to
specific objects of a virtue, or to a specific commandment.
Not only must the ultimate species (infima species) be
stated, but the specific circumstances, too, must be ex-
plained. These are such as alter the species of a sin, and
are attached to persons (e.g., sacred persons), places or
objects. For instance, an act of violence done in church,
or a theft committed of sacred things.7 The integrity of
confession may never be dispensed with, not even when
there is a great multitude of penitents, as may happen on
feast days.8 If one is lawfully excused from making a
complete confession, for instance, on account of danger
of death, he is obliged to mention the sins omitted in his
next confession.9 This, however, does not mean that a
penitent who has made a confession as completely as he
was able, is obliged to make another confession to supply
the number. Unnecessary and inculpable scruples are to
be discarded. In saying this we do not, of course, ap-
prove the Quietists' quaint and unqualified self-annihila-
tion which would render a soul advanced in sanctity the
purely passive and insensible instrument of even notably
immoral acts.10
Can. 902 states which acts constitute sufficient but not
necessary matter for confession. They are the mortal
sins already directly forgiven, and venial sins. This is
the doctrine of the Council of Trent.11 Venial sins may
■"■
i Prop. Lntheri damn., n. 8 8 Prof. damn. March 4, 1679, n.
(Denzingcr, n. 633): Schieler- 59 (Denxinger, n. 1076).
Heuser, /. c, p. 163. * Prop. damn. Sept. 24, 1665, n.
• Trid., sell. 14. c. 5, de poenit. 11 t&id., n. 982).
f Prop. damn.. Sept. 24. 1665. mProp. damn. Not. 20. 1687.
O, 24 sq.; prop. damn. March 4, n. 47, 48, 60 (ibid., n. 1134 f-I
1679, n. 49 aq. (Denainger, n. 995 U47}.
f.: 1066 f.) 11SC88. 14, c. s, de pornii.; cfr.
Poble-Preuis, /. c, p. 62.
oogle
i*~^ ^ .. ,L, Original fro ni
UNIVERSITY OF WISCONSIN
-
■
pi
340 ECCLESIASTICAL THINGS
be forgiven, but they cannot be retained, since they do
not entail eternal damnation. On the other hand the cus-
tom of confessing them is praiseworthy, and there is no
reason to fear that the Sacrament may be rendered con-
temptible by the confessing of venial sins, as the synod of
Pistoja falsely asserted.12
CONFESSING THROUGH AN INTERPRETER
Can. 903.
Qui alxter confiteri non possunt, non prohibentur,
si vclint, per interpretem confiteri, praecavendo abusus
et scandala, firrno praescripto can. 889, § 3.
Those who are unable to confess otherwise, may, if they
wish, confess through an interpreter, provided abuses and
scandals are avoided, with due regard to can. 889, § 2.
The canon says, they may, but not, they are obliged
to confess through an interpreter. For although confes-
sion is necessary by divine command, and, at least indi-
rectly, necessitate medii, for salvation, yet there is a dis-
tinction between actual submission to the power of the
keys and submission in desire (in voto). The latter
means that one is ready to subject himself to confession
if he can do so in the proper and ordinary way and an oc-
casion offers.18 However, confessing through an inter-
preter is an extraordinary and, considering human reluct-
ance in matters of conscience, a very burdensome means.
Therefore it cannot be held that God meant to impose
such an obligation on men, especially since an act of
contrition, — provided confession is not spurned for other
reasons, — can effect justification.
l2Prop. damn., " Auctortm fidei," 1 3 Benedict XIV, Dt Syn. Dioec,
Aug. 98, 1794, n. 30 (Dcnzinger, VII, 15, 8; VII, 16, 11.
■. 1402}.
ogle
f^ ^ s ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 904 341
The interpreter must observe the seal of confession.
This is a grievous obligation.
By the way it may be stated that the term " interpreter "
is to be understood strictly of a person, not of any other
means, such as a letter, a telegram or a telephone message,
etc.
OBLIGATION OF DENOUNCING SOLLICITATI0N
s
Can. 904.
Ad normam constitutionum apostolicarum ct nomi-
natim constitutionis Bcncdicti XIV Sacratnentum
poenitentiae, I Iun. 1742. debet poenitens sacerdotem,
reum delicti sollicitationis in confessione, intra mensem
denuntiare loci Ordinario, vel Sacrae Congregation!
S. Officii ; et conf essarius debet, graviter onerata eius
conscientia, de hoc onere poenitentem monere.
In accordance with the Apostolic constitutions, espe-
cially that of Benedict XIV, "Sacratnentum Poeniten-
tiae" June 1, 174*1 a penitent is obliged to report, within
a month, any priest guilty of solicitation in confession.
The report must be made either to the local Ordinary or
to the Holy Office, and every confessor has the strict obli-
gation to admonish his penitent of this duty.
The obligation of reporting priests who solicit a peni-
tent ad turpia in the act, or on occasion, or under pretext
of confession, is a grievous one, as will be seen from the
instructions of the Holy Office quoted below. First we
will give a few decisions referring to our case. Alexander
VII, on Sept. 24, 1665, condemned14 the two following
propositions :
Prop. 6: " Conf essarius, qui in sacramentali Confes-
l* See Dcoxinfcr, on. 977 f.
jle
Y ,1,., Original from
UNIVERSITY OF WISCONSIN
342 ECCLESIASTICAL THINGS
stone tribute poenitenti chartam postea legendam, in qua
ad venerem incitat, non censetur sollicitasse in conies-
stone, ac proinde non est denuntiandus."
Prop. 7: " Modus evitandi obligationetn denuntiandae
sollicitationis est, si sollkitatus confiteatur cum sollici-
tante: hie potest ipsum absolvere absque onere denun-
tiandi."
To the question proposed to the Holy Office, whether
or not the expression, " simulantes confessiones audire "
is to be understood conjointly of solicitation and confes-
sion, either real or feigned, the answer was: Either suf-
fices. This must evidently be taken as bearing on con-
fession. The same must be said of the answer given to
the second question proposed on the same occasion: if a
confessional (i.e., confession-room) is also used as a par-
lor, and solicitation is made there, this would entail the
obligation of denouncing the guilty priest.10 This, we
say, must also be considered as connected with confes-
sion. For the mere fact that the parlor also serves as a
quasi-confessional would certainly not be sufficient to con-
nect solicitation with confession.
The same S. Congregation has excused and exempted
women from the obligation of denouncing if they live far
from the seat of the Ordinary or the place where the de-
nunciation should be made.1* However the obligation re-
vives " when the danger or impediments to the journey
cease, and Ordinaries should, as far as possible, see to it
that such impediments are removed.18
The priest who hears the confession of a person who
18 S. O.. April 28. 1700 (Colt. 10 S. 0.. Jan. 21, 1737 (Coll.
P. F., n. 348). The so-called cit, n. 308).
parlor was really the " confession- it S. O., May 20, 184a (ibid.,
100m," of a convent, such as clois- n. 949).
tercd dudi have in lome countries. 18 S. 0., Feb. ao, 1866 {ibid.,
1*83).
oogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 904 343
has been solicited must admonish him or her of the
grave obligation of reporting the guilty priest within a
month from the date when he or she learned or first
realized the duty of denunciation. Should the penitent
refuse to denounce the culprit, absolution must be de-
nied after a repeated effort to induce him or her to com-
ply with the obligation.
The place where denunciation is to be made is the Ordi-
nariate or the Holy Office in Rome." There is no inter-
mediary instance or authority, and religious superiors are
not allowed to interfere in this matter. The Ordinary,
however, may delegate another priest to hear the case and
to employ a third as notary. But no other persons arc to
be admitted as witnesses, except, of course, such as
testify to the character of the priest and the person so-
licited. Anonymous denunciations are not to be accepted,
and the obligation itself is personal, t. e., incumbent on the
person solicited.
The interrogatory to be made by the bishop or his dele-
gate, follows below. The obligation of denouncing culp-
able priests of solicitation in the act of hearing or on the
pretext or occasion of confession binds all the faithful
of both sexes and of every rite, Latin and Oriental.10
2
IN5TRUCTIO S. OFFICII (FEB. 20, l866)
a
1. Personae sive marcs sive feminae, quaecumque iliac sint, ad
turpia sollicitatae in Confessione vel occasione aut practextu
Confessionis, qucmadmodum enucleate in raemorata Constitu-
tionc praecipitur, rem ad Sanctam Scdem vel ad loci Ordinarium
deferre debent.
2. Denunciare oportet quemcumque sacerdotem, etiam iuris-
l»The address is: Sant' Uffizio, talis," Mar *6» 1742. 9 IX, n. V;
Via del Sant' Ulfizio 5, Roma, Italy. " Aposlolici munrm/' Feb. B, »745»
20 Benedict XIV, " Etsi paste- ga.
jle
£ * ^ .. ,L» Original from
UNIVERSITY OF WISCONSIN
344 ECCLESIASTICAL THINGS
dictionc carentem, vel etiam poenitentis sollicitationi consenti-
entem, quamvis statim dissentientem de turpi materia loqui,
illius complementum ad aliud tempus differeniem, et non prae-
bentem absolutionem poenitenti.
3. Huiusmodi denunciationes a nemine absque culpa letali
omitti possunt. Qua de re poenitentes debent admoneri, neque
ab iis admonendis instruendisque eorum bona fides excusat.
4. Sacerdotes ad sacras audiendas confessiones constitute qui
de hac obligatione poenitentes suos non admonent, debent puniri.
5. Poenitentes admoniti, et omnino renuentes, nequeunt absolvi ;
qui vero ob iustam causam denunciationem differre debent,
eamque quo citius potcrunt faciendam spondent serioque promit-
tunt, possunt absolvi.
6. Denunciationes anonymae contra sollicitantes ad turpia
nnllam vim liabent: denunciationes enim fieri debent in iudicio,
nempe coram Episcopo eiusve delegato cum interventu ecclesi-
astici viri, qui notarii partes teneat, et cum iuramento, et cum
expressione et subscriptione sui nominis; nee sufficit si fiat per
apochas vel per litteras sine nomine et cognomine auctoris.
Ceterum prohibetur, ne in recipiendis denunciationes praeter
iudicem et notarium, virum utrumque ecclesiasticum, speciali et
scripto cxarata Episcopi deputatione munitum, testes intersint.
Cavendum quoque ne ex denunciantibus quaeratur, num sollici-
tationi consenserint : et convenientissimum foret, si de huiusmodi
consensu, quantumvis sponte manifestato, nihil notetur in tabu lis.
7. Deminciationis onus est personale et ab ipsa persona sol-
licitata adimplendum. Vcrum si gravissimis difficultatibus ira-
pediatur, qnominus hoc perficere ipsa possit, tunc vel per se, vel
per epistolam, vel per aliam personam sibi benevisam suum
adeat Ordinariura, vel sanctam Sedem per sacram Poeniten-
tiariam, vel etiam per hanc supremam Inquisitionem, expositis
omnibus circumstantiis, ct deinde sc gcrat iuxta instructioncm
quani erit acceptura. Si vero necessitas urgeat, se gerat iuxta
consilia et monita sui confessarii. Ast si nullo impedimento
detenta denunciationem omnino renuat, in hoc casu aliisque
supra memoratis, laudandus est confessarius, qui operam suam
poenitenti non denegaverit, et vel Ordinarium vel Sanctarn Sedem
pro opportunis providentiis consuluerit, suppresso tamen poe-
nitentis nomine.
8. Non infrequenter occurrit casus, ut confessarius aliusve
ccclcsiasticus vir ab Episcopis (quorum utique haec potest as
oogle
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 904 345
est) deputetur ad denunciationes recipiendas in re ad sollicita-
tionis crimen spectante absque mterventu notarii. Huic instruc-
tion! folium adiicitur circa modum, quo hisce in casibus confici
denunciatio debet.81
INSTRUCTIO S. OFFICII (JULY 20, l8(J0)
Modulo Examinis Per Generolia Assumendi
Vigore epistolae Sacrae Supremae Congregations datae sub
die . . . (vel vigore decreti Illustrissimi ac Reverendissimi Do-
mini Archiepiscopi Ordinarii) vocata personaliter comparuit
coram Illustrissimo ac Reverendisstmo Domino N. N. sistente in
Cancellaria (vel in sacrario, aut in collocutorio monialium seu
piae domus) in meique etc.
N. N. nubilis (vel uxorata) degens in hac civitate N. N., in
paroccia N. N., filia (vel uxor) N. N., aetatis suae . . ., condi-
tionis civilis (aut agricolae, aut famulatui addictae) cui delato
iuramento veritatis dicendae, quod praestitit tactis SS. Dei Evan-
geliis, fuit Quest. An sciat vel imaginetur causam suae voca-
tionis et praesentis examinis? — Arts. . . . Q. A quot annis
usa sit acccderc ad sacramentum Pocnitcntiac? — Arts. . . . Q.
An semper apud unum eundemque confessarium sacramentum
Poenitentiae receperit, vel apud plures sacerdotes: insuper an in
una eademque, vet in pluribus ecclesiis? — Ans* . . . Q. An a
singulis quibus confessa est sacerdotibus exceperit sanctas admon-
itiones, et opportuna praecepta, quae ipsam examinatam aedi-
ficarent, et a malo arcerent, et quatenus etc. — Ans. . . . Notan-
dum : si responsio fuerit affirmativa, id est si dicat, se bene
semper fuisse directam, tunc interrogatur sequenti modo: Q.
An sciat vel meminerit aliquando dixisse vel audivisse, quod
quidam confessarius non ita sancle et honeste sese gesserit erga
poenitentes, quin murmurationes, seu verba contemptibilia contra
ipsum confessarium prolata fuerint: ex. gr., quod ipsa exami-
nata, ab uno vel a pluribus poenitentibns, atque ab uno abhinc
anno, vel a quattuor aut tribus mensibus similia audicrit? —
Notandum : Si post hanc interrogationem et animadversionem
examinata negare pergat, claudatur actus consueta forma, quae
ad calcem huius instructionis prostat. At si quidquam circa ali-
quem confessarium, iuxta ea de quibus interrogatur, aperuerit,
ultcrius interrogabitur prout sequitur: Q. Ut exponat nomen,
..-.
21 Colt. P. F., n. 138*.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
346 ECCLESIASTICAL THINGS
cognomen, omcium, aetatetn confessarii, et locum seu sedera
Confess ionis ; an sit presbyter saecularis vel Regularis, et qua-
tenus etc — Ans. . . . Q. Ut exponat seriatim, sincere et clarc
ca omnia, quae in sacramcntali confessione vcl an tea vcl poatca
vel occasione confessionis audierit a confessario praedicto minus
honesta: vel an ab eodem aliquid cum ipsa inhoneste actum
fuerit nutibus, tactibus seu opere, et quatenns, etc. — Notandum :
hoc loco iudex solerte curabit ut referantur iisdem verbis,
quibus confessarius usus fuerit, sermones turpes, seductiones,
invitamenta conveniendi in aliquem locum ad malum finem,
aliaque omnia, quae crimen sollicitationis constituunt, adhibita
vernacula lingua in qua responsiones sedulo et iuxta veritatem
exarabuntur ; animum addat examinatae, si animadvertat, cam
•a
nimio timore aut verecundia a veritate patefacienda praepediri,
eidem suadens omnia inviolabili secreto premenda esse. Denique
exquiret tempus a quo sollicitationes inceperint, quamdiu per-
duraverint, quoties repetitae, quibus verbis et actibus malum
finem rcdolentibus exprcssae fucrint Cavcbit diligcntcr ab ex-
quirendo consensu ipsius examinatae in sollicitationem, et a
quaeumque interrogatione, quae desiderium prodat cognoscendi
eiusdem peccata.— Q. An sciat vel dici audierit praedictum con-
fessarium alias poenitentes sollicitasse ad turpia ; et quatenus eas
nominct (atque hie iubebit nomen, cognomen, ct saltern indicia
dariora, quibus aliae personae sollicitatae detegi possint). —
Notandum: Si forte inducantur aliae personae sollicitatae, erit
ipsius iudicis eas prudenter advocate, et singillatim examinare
iuxta formam superius expositara. — Ans. . . . Q. De fama
praedicti confessarii tarn apud se quam apud alios? — Ans. . . .
Q. An praedicta deposuerit ex iustitiae et veritatis amore, vel
potius ex aliquo inimicitiae vel odii effectu, et quatenus, etc, —
Ans. . . . Quibus habitis et acceptatis dimissa fuit iurata de si-
lcntio servando itcrum tactis SS. Dei Evangeliis, cique perlecto
wo examine in con firm at ion em praemissorum se subscripsit
(si fuerit illiterata, dicatur) et cum scribere nesciret, fecit signum
Crucis. (Subscriptio personae examinatae.)
Acta sunt haec per me N. N., cancellarium vel notarium ad
hunc actum as sump turn.**
■"■
» Ibid., n. 173a.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
a
CANON 905 347
confessions may be made in any rite
Can. 905
Cuivis fideli integrum est confessario legitime ar»-
probato etiam alius ritus cui maluerit, peccata sua
connteri.
All the faithful are free to confess their sins to any
lawfully approved confessor whom they prefer, even
though he belong to another rite.
It has always been the practice of the Church to allow
the greatest possible liberty in such a delicate matter, and
since the administration of this Sacrament involves no
difference of rite, the choice of confessors is perfectly
free" and neither the higher nor the lower clergy are em-
powered to forbid their subjects to go to a confessor of
another rite." Neither are priests of the Latin
Rite obliged to query penitents of an Oriental rite con-
cerning their belief in such articles of faith as the Roman
Pontiff, the processio Spiritus Sancti, the veneration of
Saints, consecration in leavened bread, or purgatory, un-
less the confessor has a well-founded doubt concerning
the penitent's orthodoxy." The practice of obliging par-
ishioners to make their paschal confession to their pastor
or his substitute has been officially declared intolerable."
18 S. C P. F.. Jane 2, 183S 25 S. C. P. F.. Jan. 33. 1688;
(Coll., n. 839). April 16, 1863 (Coll., n. 1237).
m S. C P. F., Dec. 11, 1838 z«S. C P. F., Sept. 17, 1792
ad t» f. (Coll., n. 879). (.Coll., a. 610).
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
348 ECCLESIASTICAL THINGS
the annual confession
Can. 906.
Omnis utriusque sexus fidelis, postquam ad annos
discretionis, idest ad usum rationis, pervenerit, tenetur
omnia peccata sua saltern semel in anno connteri.
All the faithful without distinction of sex, are obliged
to confess all their sins once a year as soon as they have
reached the age of discretion.
This text is taken from the famous Decretal which en-
tered the eighth canon of the Council of Trent." The
duty has also been imposed on the missionary countries of
China, India, etc.? and missionaries of both the secu-
lar and the regular clergy are obliged to insist upon its
fulfillment.28 The obligation commences from the time
the child begins to reason, i. c, with us about the seventh
year, sooner or later. Parents, confessors, directors or
tutors, and pastors are under obligation to see to it that
the children comply with this duty.1
Does the obligation bind even if no mortal sins have
been committed? There is no strict obligation by divine
law 'to confess any but mortal sins, yet the positive low
of the Church obliges in this case. An analogy is easily
found in the obligation of confession for gaining a plenary
indulgence.30
Note that whereas Communion is prescribed for the
paschal time, there is no period assigned for complying
with the duty of annual confession and therefore the
p
2TC. ia, X. V. 38; Sess. 14, I. IV (A. Ap. S.. II, 58a).
can. 8, c. 5. dm poenit. .10 Benedict XIV. " Inter prme-
28 S. 0.f March 23, 1656; Nov. teritos," Dec. 3. »749. | 77- It
13. 1669; S. C. P. F.. Sept. 12, appears to us that if the legialator
1645: Sept. 21. 1840 (Coll., mi. had no strict obligation in view, he
126. i8q, 114. 9'3)< would have added the clause:
so S. C Sacr.t Aug. 8, 1910, no. salvo prawscripto can. oof.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
N
N
■
CANON 907 349
pastor is at liberty to choose for the first confession of
the children some other time of the year.
sacrilegious confession
Can. 907.
Praecepto confitendi peccata non satisfacit, qui con-
fessionern facit sacrilegam vel voluntarie nullam.
He who makes a sacrilegious or wilfully invalid con-
fession does not comply with the duty of confessing his
sins. The contrary proposition was proscribed by the
Holy Office 8I in 1665. One who has made a sacrilegious
or voluntarily invalid confession has to go to confession
again, worthily and validly, in order to comply with the
law of the Church as embodied in can. 906.
Sl Cfr. prop, damn., n. 14 (Dcnzingcr n. 985).
G| Original from
OOglL UNIVERSITY 0FWI5C0NSIN
N
■
CHAPTER IV
the place for hearing cokfessions
Can. 908.
Sacramentalis confessionis proprius locus est eccle-
sia vel oratorium publicum aut semi-publicum.
The proper place for sacramental confession is the
church, or a public or semi-public oratory.
This canon excludes private oratories, yet no rigid ex-
clusion is intended, as is apparent from the text itself,
which merely says: proprius locus, the proper place. This
is also the intent of the Roman Ritual/2 as Benedict XIV
insinuates.83 Hence any reasonable cause would justify
hearing confession in a private oratory, for instance, if the
family wished to prepare for Holy Communion.
•
Can. 909
§ x. Sedes confessionalis ad audiendas mulierum
confessiones semper collocetur in loco patent! et con-
spicuo, et generatim in ecclesia vel oratorio publico
aut semi-publico mulieribus destinato.
§2. Sedes confessionalis crate Bxa ac tcnuiter per-
forata inter poenitentem et confessarium sit instructa.
Can. 910
§ 1. Feminarurn confessiones extra sedem confes-
sionalem ne audiantur, nisi ex causa infirmitatis aliave
ai Rit, Horn., tit III, c. 1, de S3" Mogno cum," June 2, 1751,
Sacr. Poenit.. n. 7. I ao.
35°
oogle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 910 351
verae necessitatis et adhibitis cautelis quas Ordinarius
loci opportunas iudicaverit
§ 2. Confessiones virorum etiam in aedibus privatis
excipere licet
The confessional for hearing women's confessions
must always be placed in an open and visible place, gen-
erally in the church or public or semi-public oratory as-
signed to women ; it must have an immovable grate with
small holes.
Women's confessions should not be heard outside the
confessional, except in case of sickness or for other
reasons of necessity, and under such precautions as the
local Ordinary may deem opportune.
Men's confessions may be heard also in private homes.
The assignment of a special place, or chapel, or room for
hearing women's confessions is not customary in our
country, nor have we seen it in vogue in other countries
as a rule. It is different with Sisters, and especially
cloistered nuns. These sometimes have special rooms,
which are properly designated as confession-rooms, built
within the enclosure, or at least in such a way that the
nuns remain intra septa, whilst the confessor is outside.
Such confession-rooms may be provided also for women
who live in convents either as mere inmates or students
(conservatori, ritiri). These rooms should serve as con-
fessionals only, and are considered such for the Sisters
as well as for the women or young ladies living in the
convent.34 Where no such special confession rooms are
assigned for women, they must be heard in the church or
orator)', where the confessor and penitent may be seen.
Women are not allowed to enter a convent of re-
Q
"\
-
M S. 0.. Nov. 25. 1874 (Coli P. ligation of denouncing would ccr-
F., n. 1414). If solicitation would tainly result,
take place in such a room, the ob-
ioi >gle
% .J,., Original fro ni
UNIVERSITY OF WISCONSIN
352 ECCLESIASTICAL THINGS
ligious, where, for instance, only two or three priests
dwell. If the chapel or oratory of these Fathers is lo-
cated in the interior of the house, women may go by the
public and direct way into the chapel, but no further, and
there make their confessions. If there is no chapel at-
tached to the hospice or residence of the missionaries, the
confessional should be put in an open and accessible
place, as near as possible to the gate or door. The Ordi-
nary or local superior should assign the place and see to
it that the rules are properly observed."*
The confessional itself should be furnished, if possible,
with an iron grate 3n so fixed ihat it cannot be moved, and
perforated with holes not bigger than the ring finger.37
That a veil should be placed before it, is not prescribed.
But the grate is of obligation everywhere, in all parts of
the world. Where there is no stable oratory the women
may cover their faces with a veil.88
Except in case of sickness, women's confessions shall
not be heard outside the confessional. The term sick-
ness includes old age, decrepitude, and deafness." When-
ever sick persons are heard outside the usual confes-
sional, the door of the room should be left open, so that
the confessor and the penitent can be seen from afar.4*
This may sometimes be impracticable in the case of hard-
hearing penitents. For the rest, the precautions to be
taken are left to the judgment of the Ordinary.
Here an additional remark may find a place. It con-
35 S. C. P. F., Auf. 26, 1780 38 S. C. P. F., Mirch 17, 1785
{Coll., n. 545)- {Coll.. n. 572).
sa Ibid. 3» S. C. P. F., Sept. #1, 1840 ad
IT S. C EE. et RR., Sept. 22, 8 (Coll., n. 913).
1645 (Bizcan-i. Coll., p. :6). This •»* S. C. P. F.( April 13. 1807. »•
decision prescribe* only a stole, hut XIII; Feb. 12, 18:1 {Coll., nn. 692,
no surplice; and in case of sickne«9 754)*
or necessity the regular habit with*
out itolc is sufficient.
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
CANON 910 353
corns can. 522, which allows female religious to go to any
confessor approved by the local Ordinary for hearing
women's confessions, and declares such a confession,
made in any church or semi-public oratory, to be valid
and licit. Does this also apply to the Sisters' own
chapel? We answer, yes. Can. 522 speaks of any
church or semi-public oratory, and revokes every con-
trary privilege. Besides, can. 519 should disperse all
doubt as to the perfect liberty of religious in matters of
conscience. If a religious, even though exempt, may
go, in his own house, to any approved confessor, why
should that liberty be denied to Sisters in their chapel?
The decree of Feb. 3, 1913, cannot be urged against the
decree of Aug. 5, 1913.**
41 Cfr. A. Ap. S., V, 62, «3*. prepared while that decree wu pub-
The argument that the Code was lubed baa no juridical value.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
CHAPTER V
INDULGENCES
ART. I
grant of indulgences
Can. 911
Omnes magni faciant indulgentias seu remissionem
coram Deo poenae temporalis debitae pro peccatis, ad
culpam quod attinct iam deletis, quam ecclesiastica
auctoritas ex thesauro Ecclesiae concedit pro vivis per
modum absolutions, pro defunctis per modum suf-
frage
An indulgence is a remission before God of temporal
punishment due to sins, the guilt of which is already for-
given or wiped out. The source of indulgences is the
treasury of the Church. They are granted by the ecclesi-
astical authority in favor of the living as well as of the
dead, but to the former are applied by way of absolu-
tion, whilst the latter obtain their benefits only by way of
suffrage. Indulgences should, therefore, be highly
esteemed by all the faithful.
1. An indulgence is a remission of the temporal punish-
ments which remain after the guilt {culpa or rectus) of
sin has been taken away, either by sacramental absolu-
tion or by an act of perfect contrition.1 It is a valid abso-
lution, before God, from the punishments which a man
1 Cfr. Pohle-Prcuti, The Sacraments. Vol. Ill, pp. 23a ff.
354
>Ic
, .,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 911 355
would have to expiate, either in this world by voluntary
acts of penance, or in purgatory by involuntary suffer-
ing. It is, we say, valid before God as well as before the
Church, although applied extra-sacramentally.
2. The source and foundation of indulgences is the in-
exhaustible treasury of the Church,* which consists of the
sum-total of the superabundant merits of our Lord and
His Saints, stored away for the benefit of the living as
well as the dead, in as far as they are capable of receiving
them.
3. The authority which dispenses these treasures is the
Catholic Church, to whom God has entrusted the keys of
His kingdom, acting through the Pope and the bishops,
who possess the power of the keys.
4. The beneficiaries of this thesaurus are the living
faithful and the souls in Purgatory, with this difference
that the former are benefited in the form of a remission
or grant from the treasury as well as by an act of juris-
diction {per modum absolution-is), whereas the dead can
receive the grant of remission only through the interces-
sion of the living (per modum sufFragii) because they are,
at least directly, beyond the jurisdiction of the Church.
5. Indulgences should be greatly esteemed by all. The
reason is partly selfish. — but, then, "charity begins at
home" — and partly of an objective doctrinal character,
based on history. Self-love teaches us to choose the les-
ser evil, and indulgences are certainly an easier means of
satisfying the justice of God than compulsory expiation.
Besides, by making proper use of indulgences, we show
our gratitude and esteem for the immense treasury of
merits stored up in the Church. This certainly was the
intention of all ages, whether we look to the intercession
* This notion wu first systematically applied by Alexander of Halei
(Xllltta cent.).
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
356 ECCLESIASTICAL THINGS
of the martyrs who offered libelli pacts to apostates who
wished to be reconciled or whether we accompany
public sinners on their pilgrimages, or the crusaders on
their journey to the Holy Land. The idea remains the
same : forgiveness, not of sins as such, but of the severe
punishments meted out in the penitential books and by
the ecclesiastical authorities. No doubt the ransom from
penance as well as the works prescribed were liable to
abuses and misconstruction, but the Church and her ap-
proved teachers always sought to enlighten the people
and stem the mischief. Abuses attach themselves to the
most sacred things. That they were connected with in-
dulgences did not justify Wiclif in saying that "it is
foolish to believe in the indulgences granted by the Pope
and the bishops." *
WHO MAY GRANT INDULGENCES
Can. 912.
Praeter Romanum Pontiricem, cui tottus spirituals
Ecclesiae thesauri a Christo Domino commissa est
dispensatio, ii tantum possunt potestate ordinaria in-
dulgcntias elargiri, quibus id cxpressc a iure con-
cessum est.
Besides the Roman Pontiff, to whom the stewardship
of the whole spiritual treasury of the Church is entrusted
by Christ our Lord, only those can by their ordinary
power grant indulgences who are expressly authorized to
do so by law.
Since the grant of indulgences is an act flowing from
jurisdiction, not from the power of order, — because in-
dulgences for the living are given in the form of absolu-
tion,— it follows that:
• Prof, dan*., a, 42 (Demingcr, n. 5>8)-
oogle
^ ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
■
9
•■:
CANON 912 357
i°. The Pope may grant indulgences for the whole
Church, without any limit as to kind, place, and persons.
2°. Archbishops and bishops4 may grant indulgences
in their respective provinces and dioceses, the former of
100 days, the latter of fifty days. These indulgences are
called local because they apply only to the territory over
which these prelates have jurisdiction.
30. Cardinals* may grant a two hundred days' indul-
gence, toties quoties, in any place, (titular church or in-
stitution) and to any person under their jurisdiction and
protection.0 Their power also is an ordinary one by law.
Besides these no other prelates by law enjoy the power
of granting indulgences. Thus it has been decided that
no titular bishop, who is at the same time auxiliary to an-
other bishop, may grant an indulgence of forty days in
the diocese in which he is auxiliary/
Apostolic Delegates who have received faculties from
the Pope for granting indulgences, should abstain from
attaching such to devotional objects or acts of piety which
have already been thus enriched by a bishop within his
territory.8
Bishops and archbishops may attach the indulgence
which the law empowers them to grant on the occasion
of solemn functions, to images or statues, provided the
material is such as prescribed by the Church. These in-
dulgences of 50 or 100 days may be gained by the faithful
who recite the prayers prescribed before said statues or
images. But these prelates are not allowed to grant more
than 50 or 100 days.9
4 See can. 374, n. 2; can. 349, protection, this may be gained only
I a, n. a. by those present; ibid.
6 Can. 339, B t, n. 24. T S. C. Indulg-., Jan. u, 1S78,
0 If they grant an indulgence of ad 4 (A. S. S., 11, 153 ff.).
the same cumber of dayi outside 8 Ibid.
the place of their jurisdiction or ft S. C Indulg., Jan. 24, 1846;
* ( Inr»al*> Original from
,00cVC UNIVERSITY OF WISCONSIN
358 ECCLESIASTICAL THINGS
Can. 913.
Inferiores Romano Pontifice nequeunt:
i.° Facultatem conccdendi indulgent ias aliis com-
mittere, nisi id eis a Scdc Apostolica expresse fuerit
indultum ;
2.0 Indulgcntias concedcre defunctis applicabiles;
3.0 Eidem rei seu actui pietatis vel sodalitio, cui iarn
a Sedc Apostolica vel ab alio indulgentiae concessae
Bint, alias adiungere, nisi novae conditiones adimplen-
dae praescribantur.
Prelates of inferior rank to the Pope:
1°. Cannot impart to others the faculty of granting in-
dulgences, unless they have an express indult to that
effect from the Apostolic See;
2°. Cannot grant indulgences applicable to the poor
souls; *
30. Cannot attach additional indulgences to an object,
or an act of piety, or a confraternity which have already
been indulgenced by the Holy See or some other prelate,
unless new conditions are prescribed.
The first clause of this canon is intended to prevent
abuses. It renders control easier and the sources of
abuses more readily discoverable.
No. 2 is based on the view that the supreme dispenser
alone may exercise (indirect) power over those who arc
withdrawn from the proper jurisdiction of the Church.10
As to no. 3, two decisions will help to illustrate it.
Q
"■
Feb. 22, 1847 (Prinzivalli, Resotu- 10 The question whether tadul-
tiortes seu Decteta Authcntiea 5. C. genccs for the dead attain their
Indulg., Romae 1863, nn. 571, 583). purpose infallibly is controverted
The materials permitted are wood, (cfr. Pohle-Preuss, I. c, p. 101 f.) ;
ivory, iron, steel, stone, marble; ex- but acts of charity will certainly
eluded are lead, zinc, glass, gypsum, be rewarded.
paper, pasteboard; cfr. Beringer.
Die AbHsse, 10th ed., p. 303.
sd by GoOgle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 914 359
Titius, a pious citizen of Marseilles, had an image of the
Blessed Virgin, which had been enriched with an in-
dulgence of forty days, granted to all who would recite
certain prayers before it. As often as a bishop came to
the city, Titius asked him to attach forty more days.
They did it willingly, but the S. Congregation declared all
these indulgences except the forty days granted by the
local Ordinary invalid.11
The Ordinary may, however, attach additional indul-
gences to a pious object, such as beads or crosses, or to
works of piety, for instance, the support of good litera-
ture, or to a sodality, over and above those already
granted by the Holy See, provided he prescribes new con-
ditions, e.g., additional prayers or some other good work.
The successor may, moreover, grant new indulgences to
things or persons indulgenced by his predecessor, under
the same condition, viz., that new works or prayers be
performed." "But no bishop can increase the extent of
an indulgence by dividing the same act into different
parts, for instance, attaching fifty days to every word of
the Hail Mary."
■
a.
the papal blessing
Can. 914.
Benedictionem papalem cum indulgentia plenaria,
secundum praescriptam formulam, impertiri possunt
Episcopi in sua quisque dioecesi bis in anno, hoc est
die sollemni Paschatis Resurrectionis et alio die festo
sollemni ab ipsis designando, etiamsi iidem Missae
sollemni adstiterint tantuxn ; Abbates autem vel Prac-
11 S. C. Indulg., Dec. 17, 1838 12 S. C. Indulg., Jan. 12, 1876*
(Prinxivalli, /. c, n. 480). ad 1 et 3 (A. S. S„ 11, isj £J-
18 Ibid., ad 5 (/. c).
ogle
Original from
UNIVERSITY OF WISCONSIN
■
360 ECCLESIASTICAL THINGS
lati nuIJius, Vicarii ct Pracfecti Apostolici, ctsi epi-
scopali dignitate careant, id possunt in suis territoriis
uno tantum ex sollcmnioribus per annum dicbus.
Can. 915.
Kegulares, qui privilegium habent impertiendi bene-
dictionem papalem, non solum obligatione tenentur
servandi formulam praescriptam, sed hoc privilegio
uti nequeunt, nisi in suis ecclesiis et in ecclesiis monia-
lium vel tertiariorum suo Ordini legitime aggrega-
torum; non autem eodem die et loco quo Episcopus
cam impertiat.
Every bishop may impart the papal blessing in his
own diocese with a plenary indulgence, according to the
formulary prescribed (in the Pontificate Romanum)
twice a year: once on the feast of Easter, and once on an-
other day, which they themselves may designate, even
though they should only assist at the solemn Mass. The
same may be imparted, but only on one of the more
solemn feasts of the year, by abbots or prelates nultius, by
vicars Apostolic and prefects Apostolic, even though
they are not endowed with the episcopal dignity.
Regulars who have the privilege of imparting the papal
blessing, are not only obliged to use the formula pre-
scribed, but may use the privilege only in their own
churches or in the churches of ntonialcs and tertiaries
lawfully aggregated to their order, and are not allowed to
give the papal blessing on the same day and in the same
place on which the bishop imparts it.
Before the occupation of Rome, in 1870, the popes were
wont to bless the people solemnly on Maundy Thursday
and Easter (at St. Peter's), on the feast of the Ascension
(at the Lateran), and on that of the Assumption (at St
ibyC 'Ic
% ,1 , Original fro m
UNIVERSITY OF WISCONSIN
N
■
",
CANON 915 361
Maria Maggiore). On these occasions the pope ascended
the balcony and solemnly blessed the people gathered on
the plaza before the basilica. Sometimes others were
delegated to impart this blessing. Regulars obtained a
special privilege or indult for this purpose under certain
conditions imposed by Benedict XIV and Clement XIII.1*
A Constitution of Clement XIII gave to patriarchs,
primates, archbishops, and bishops the faculty of impart-
ing the papal blessing twice a year. Coadjutor bishops
have this power (see can. 913) only if they obtained
it expressly from the Apostolic See. Clement XIII ex-
pressly says : " as long as they rule over their respective
churches," from which it is clear that titular bishops who
do not actually govern a diocese are not entitled to impart
the papal blessing.
The days on which the papal blessing may be imparted
are Easter Sunday and some other solemn feast day to be
designated by each prelate ad libitum. A solemn feast-
day is one of obligation, which is certainly the intention
of the grantor, because the blessing is given for the bene-
fit of the people gathered in church on such holy days,
as the Constitution of Clement XIII says.
The prescribed formula is that found in the Pontificate
Rotnanum. None other is to be substituted. 1B Even if
the people leave, or the custom exists of leaving after the
Pontifical Mass, the Apostolic brief must be read in the
Latin wording of the Pontificate and in the vernacular.1*
There is no excuse for curtailing this ceremony, for the
reading of both texts takes only about three minutes. In
14 "Exempla Praedecejsorum," decision of S. C. Indulg., June 30,
March 2?, 1746; " Intxhaustum," 1840 (Prinzivalli, n. 501), all tbac
Sept. 3, 1763. 11 required for validity is that the
IB S. Rit. C, May as, 1835 indulgence be imparted by papal
(Dec. Auth., n. 2720). delegation. The formula «ee id
ie5. Rit. C, Dec. 7, 1884 (.Dec. Pontificate Ron., P. III.
Auth., n. 3871), According to a
jle
j , Original fro m
UNIVERSITY OF WISCONSIN
362 ECCLESIASTICAL THINGS
the mean while the people may pray for the Holy Father
and the Church.
The S. Congregation has given permission to aged prel-
ates to impart the papal blessing even when they have not
themselves pontificated but merely assisted at Mass.1T
This is now the general law, and the privilege is not condi-
tioned upon ill health. But a bishop can not grant this
indulgence if he is entirely absent from the solemn Mass.
Inferior Prelates, as mentioned in the second clause of
can. 914, are bound by the same conditions as bishops,
but are. as the " Inexhaustum" of Clement XIII ruled,
allowed to impart the papal blessing only once a year on a
feastday.
Can. 915 mentions regulars who have obtained the
privilege of imparting the papal blessing. Benedict XIV
as well as Clement XIII desired their privileges to re-
main intact The term " regulars " must be strictly in-
terpreted, and not taken as synonymous with exempt.
Not all regulars have obtained this privilege. We know
that, for instance, Benedictine abbots have had to apply
for it and obtained it ad decennium.
The regulars who have the privilege must observe the
conditions set forth in our text, to wit:
1. They must use the prescribed formula. As there
are several formulas, a distinction is necessary.
(a) Benedict XIV (" Exemplis Praedecessorum,"
March 19, 1748) prescribed a special form of imparting
the papal blessing for regulars,18 which is still to be ob-
served when the blessing is solemnly given. A reasonable
doubt arises as to whether this form must be observed by
prelates or abbots who pontificate and impart the papal
blessing after a pontifical Mass or Vespers. While it is
17 S. Rit C, Jan. 15, 1847 (Dee. 18 Cfr. Rituale Rom., tit VIII,
Autk., n. 39*$). c. ja (Ed. Puitct, 191J, p. a6o f.),
>Ic
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 915 363
true that Benedict XIV prescribed the above-mentioned
formula for all regular orders, " mendicant as well as non-
mendicant, monastic as well as clerical," he says in the
same Constitution that abbots may bless the people in the
churches fully subject to them when they exercise pontifi-
cal functions. Hence it appears more reasonable to as-
sume that they should make use of the form prescribed in
the Pontificate Romanian, and not of the form prescribed
for regulars by Benedict XIV. But this rule must strictly
be observed : prelates with the right to pontificals may not
use the form of the Pontificate if they do not pontificate
themselves, but in that case must employ the form of the
Ritual* Romanum, as prescribed by Benedict XIV.
(b) When the general absolution, or the papal bless-
ing with plenary indulgence, may be given according to a
privilege obtained from the Holy See/8 there are avail-
able two different formulas20 prescribed by Leo XIII,
" Quo unwersi," July 7, 1882. The first begins with the
words, " Ne reminiscaris," the second with, " Intret
oratio." The latter, according to some decisions of the
S. Congregation of Indulgences, should be applied in all
religious congregations with simple vows which are not
Tertiaries of a religious order, and all secular Terti-
aries, for instance, of the Franciscans and Oblates of St.
Benedict. The first-mentioned formula should be ap-
plied in all religious orders and such religious congrega-
tions with simple vows as are tertiaries of a religious or-
der, for instance, Franciscan and Benedictine Sisters.21
2. Regulars may impart the papal blessing in their own
IB O.S.B. may impart it five times 20 Rit Rom., cd. Pustet, 1913, p.
■ year: on Ash Wednesday and on 134 f.
the four vigils of Christmas, Pente- 21 S. C. Indulg.. Dec. 18, 1885;
cost. Assumption, and All Saints; Aug. 18, iqoj; Nov. n, iqoj (A.
S. C. Indulg., Jan. 10, 1906 Mrtai. S. S., 18, 413; 36, 498. We tcd-
Ecct., 14, 31). ture to say that it would be more
ogle
/• * ^ ^ , Original fro ni
UNIVERSITY OF WISCONSIN
364 ECCLESIASTICAL THINGS
St
churches, i.e., such as are fully incorporated with the
monastery or order; in churches of moniales who are
under their jurisdiction, and, finally, in the churches of
Tertiaries who are lawfully aggregated to their order.
Tertiaries are legitimately aggregated as soon as the su-
perior general has issued the decree of aggregation.
(Tertiaries must here be understood of religious in the
sense of can. 492, §1). The papal blessing in the sense
of general absolution with plenary indulgence may be
imparted by any priest approved for hearing confessions,
whether secular or religious, if the regularly appointed
priest is absent for any reason.22 Regular superiors may
delegate a priest of their order who has no faculties for
hearing confessions to impart the general absolution with
plenary indulgence to secular Tertiaries in churches be-
longing to the regulars.28 The one who imparts it to
Tertiaries may also gain the indulgence,24 provided, of
course, he has complied with the prescribed conditions.
3. The number of times and the occasions on which
regulars may impart the solemn papal blessing were
determined by Leo XIII. In his " Quo universi" 1882,
he permitted regulars to give the blessing twice a year and
emphasized that they must abstain from giving the solemn
blessing on the same day on which and in the same town
or city where, the Ordinary makes use of the same
privilege. In eodem loco here means a town or city, not
a parish. In a large city there may be many parishes,
and if the bishop gives the papal blessing in one of them,
the regulars are not allowed to give it in another."
conformable to the Code if the first 2j S. O. (Sect. Tndalg.), May »8.
formula would be used by all re- X9M (d. Ap. S., VI, 347).
ligioui, and the second by all secu- 2* See Beringer, /. c„ ed 13, p.
lar Tertiaries, religious sodalities. 338.
and confraternities. 26 S. C. Indulg. May ao. 1806:
22 S. O. (Sect. Indulg.), Dec. 15, Beringer, /. c, p. 339.
itio (A. Af. S.. II, aa).
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 916 365
a
To complete these comments it may be added that the
bishop, too, who imparts the papal blessing gains the
indulgence attached to it. Those who take part in the
celebration from a window of a house situated on the
place where the blessing is given may gain the indulgence
attached to the same. But this blessing does not involve
absolution from censures or penalties. The same is true
of the general absolution.21
PRIVILEGED ALTARS
•a
Can. 916.
Episcopi, Abbates vel praelati nullius, Vicarii ac
Praefecti Apostolici et Superiores maiores religionis
clericalis exemptae, possunt designarc et declarare
unum altare privilegiatum quotidianum perpetuum,
dummodo aliud non habeatur, in suis ccclesiis cathe-
dralibus, abbatialibus, collegiatis, conventualibus,
paroecialibus, quasi-paroecialibus, non autem in ora-
tories publicis vel semi-publicis, nisi sint ecclesiae
paroeciali unita seu eiusdem subsidiaria.
Bishops, abbots or prelates nullius, Apostolic vicars
and prefects, and the major superiors of exempt clerical
religious may designate and declare one altar daily priv-
ileged forever in their cathedral, abbatial, collegiate, con-
ventual, parochial, and quasi-parochial churches, pro-
vided there be no privileged altar in said churches as yet.
In public or semi-public oratories, unless they are united
to a parish church or serve as its subsidiaries, no privi-
leged altar may be assigned by the prelates mentioned.
No traces of papal concessions of a privileged altar
D
2fl Clement XIII, " Inexhaustum," ing in articulo mortis tee Rit. Rom.,
Sept. 3, 1763. For the papal bleu- tit. V", c. 6 (cd. Puatet, p. 113).
G| , Original from
UOglt UNIVERSITY 0FWI5C0NSIN
366 ECCLESIASTICAL THINGS
%
o>
a
can be found before the end of the XVth century. Severe
conditions were set up under Paul V (1605-1621) for
obtaining this privilege, which was only given to churches
where forty Masses could be celebrated daily. Succeed-
ing popes, especially Benedict XIII and Clement XIII,
mitigated this rigor by granting the privilege to all patri-
archal, metropolitan, cathedral, collegiate, abbatial and
parish churches.27
What is a privileged altar and what its purpose? The
S. Cong, of Indulgences has declared: "As far as the in-
tention of the grantor and the power of the keys extend,
a plenary indulgence must be understood which in itself
would be sufficient to forthwith free the soul from the
pains of purgatory ; but as far as the efficacy of the ap-
plication is concerned, it is an indulgence the measure
of which must be left to the divine mercy and ac-
ceptance." ™ In other words : the intention of the
Church, which can never be entirely frustrated, is to liber-
ate a determined soul from Purgatory, but whether this
is fully achieved, must be left to God. The practical
conclusion is that repeated Masses offered upon such an
altar guarantee surer acceptance, and repetition is not
superfluous.
The prelates who may assign such a privileged altar
a
are: bishops, prelates nullius, Apostolic vicars and pre-
fects, and the major superiors of exempt clerical orders.
This classification is explained elsewhere as comprising all
prelates who enjoy ordinary jurisdiction.19 However, the
vicar-general is not included, and may therefore not
designate a privileged altar; for this privilege, says the
a
c
2T " Omnium taluti," Auff. ao, as 5. C. IndulfC, Jul; 26, 184a
1724; Decree of May 19, 1759 (Frinzivatli, n. 502).
(Prinzivalli, n. 24a). so S. C, Indulg., June 7, 1842)
(Prinzivalli, n. S3*).
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 916 367
a
S. Congregation, is given rather as a personal favor.80
The churches in which such privileged altars may be
designated are cathedral, abbatial, collegiate, conventual,
parish and quasi-parish churches. This is a complete
enumeration.
If a cathedral church serves at the same time as a
parish church, two privileged altars are not allowed."1
Hence neither an abbey nor a collegiate church may have
two privileged altars, at least by common law. One is
the rule. If more are desired, a special indult should be
asked for.
The text excludes public and semi-public oratories, ex-
cept when such an oratory serves as ecclesia Hlialis of
the principal or mother-church and parochial functions,
such as funeral services, baptism, administration of the
Holy Eucharist, are performed therein. The same rule
applies to subsidiary chapels, for instance, during repairs
of the parish church, and to chapels which may be called
subsidiary in pcrpetuum on account of the distance from
the parish proper ; — provided always that parochial
functions are held therein.82 Purely semi-public ora-
tories, such as we have in this country for religious com-
munities, hospitals, or asylums, do not comply with the
conditions laid down in our text.
What qualifications an altar must have to be declared
privileged, is not determined in our text. We believe that
the conditions formerly required still hold good. They
are: (1) that the altar be fixed or stable, i.e., irremovable,
with an altar stone consecrated though not necessarily ir-
removable. It is not required that the altar be of marble
80S. C Indulg.. Miy 24, 1843 82 S. C. Indulg.. Jan. 30, 1760;
(ibid., n. 553). Not. ajt 1764 (PrinzivaJli, no. --,'•,
81 S. Congr. Indulg., Sept 18, 357).
1776 (ibid., n. 365).
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
■
Q
"-.
368 ECCLESIASTICAL THINGS
or stone. (2) The second condition is that the altar be not
portable. The privilege is attached not to the stone, but
to the altar, and cannot therefore be transferred by chang-
ing the stone."
Can. 917.
§ 1. Die Commemorationis omnium fidelium defunc-
torum, omnes Missae gaudent privilegio ac si essent
ad altare privilegiatum celebratae.
§ 2. Omnia altaria ecclesiae per cos dies quibus in
ea peragitur supplicatio Quadraginta Horarum, sunt
privilegiata.
On All Souls1 Day all Masses enjoy the same privilege
as if they were said on a privileged altar. All the altars
of a chuch in which the Forty Hours' Devotion is held,
are privileged during the days of this devotion.
Concerning the application on All Souls' Day a remark,
although theological rather than canonical, may not be
amiss. It appears that the Mass on that day can be ap-
plied for all the souls in purgatory. Yet it is the con-
stant and common teaching of the Church that the appli-
cation is made only for one soul, even when the Mass is
said for the dead in general.34 Hence, even if the priv-
ilege for a community or confraternity is worded in the
plural: " pro animabus presbyterorum. perinde suffra-
gentur, ac si ad altare privilegiatum celebratae fuis-
sent."** the benefit of the indulgence attached to the priv-
ileged altar is in fact applied only to one individual soul
Therefore, besides the intention for all the dead, it is
s* Schneider, Rescripta Auih. S. Dec. 19, 1865 M. S. S., iB, 340):
C. Indulg., 1885, n. 405; Beringer, Beringer, /. e., ed. 13, p. 469 *•
/. c, p. 46a f. 35 S. C. Indulg., July 16, 1765
1* S. C. Indulg.. Feb. s9. 1864: {Rtscrifta, n. «8>.
jle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 918 369
well, though not necessary, to make a special intention for
a particular soul.
■
■"■
Can. 918.
§ 1. Ut indicetur altare esse privilegiatum, nihil aliud
inscribatiir, nisi: altare privilegiatum, perpetuum vel
ad tempus, quotidianum vel non, secundum conces-
sionis verba.
§ a. Pro Missis celebrandis in altari privilegiato
nequit, sub obtentu privilegii, maior exigi Missae
eleemosyna.
In order to indicate the fact that an altar is privileged
nothing else is required but the inscription: Altare privi-
legiatum, whether perpetual or for a certain time, daily
or not, according to the wording of the grant.
For Masses celebrated on a privileged altar no higher
stipend may be charged because of the privilege.
The latter rule was made by the S. Congregation of
Indulgences when, in extending the indulgence of the
privileged altar to all Masses said on All Souls' Day,86 it
stated that only a synodal or usual stipend may be re-
ceived. Our Code adds the words: "sub obtentu pri-
vtiegii," which means that nothing more may be demanded
on account of the altar being privileged, because this
would be simony. If the privilege is personal, it is
lost by asking more; if it is local, the indulgence is not
gained.37
MS. C. Indulf., May 19. 1761 «t S. C. P. F„ Aug. 13. 1774
(PriazivaUi, n. 250). {Coll, n. 507).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
370 ECCLESIASTICAL THINGS
promulgation of indulgences
Can. 919.
§ 1. Novae indulgentiae, ecclesiis etiam regularium
conccssae, quae Romae promulgatac non sint, nc
pcrvulgcntur, inconsulto ordinario loci,
§ a. In edendis libris, libellis, etc., quibus conces-
siones indulgentiarum pro variis precibus aut piis
operibus recensentur, servetur praescriptum can. 138S.
Can. 920.
Qui a Summo Pontifice impetraverint indulgenti-
arum concessiones pro omnibus fidelibus, obligatione
tenentur, Bub poena nullitatis gratia? obtentae, authen-
tic* exemplaria earundem concessionum ad Sacram
Poenitentiaham deferendi.
New indulgences not published at Rome, may not be
promulgated without the consent of the local Ordinary.
This law is binding also on regulars.
In publishing books, pamphlets, etc., which contain in-
dulgences for various prayers and pious works, can. 1388
must be observed.
Those who have obtained from the Sovereign Pontiff
indulgences intended for all the faithful are obliged under
penalty of nullification of the favor granted, to send an
authentic copy of the same to the Sacred Penitentiary.
In ancient times alms were collected for the crusades
and buildings for charitable purposes. The collectors
were often entrusted with the preaching or promulgation
of indulgences. Abuses of a grievous nature crept in,
and greed exploited the most sacred things. The Council
of Trent a8 endeavored to remedy these abuses by making
!• Seii. ai, c. 9, de rtf.
s \
i f~* ^rtriL Originalfrorn
oogle
UNIVERSITY OF WISCONSIN
CANON 920 371
a
a
the promulgation of indulgences dependent on the co-
operation of the local Ordinaries and two canons. But
simpletons — we have no other name for those who hunt
up every indulgence and believe every scrap of paper
which pretends to convey some extraordinary spiritual
favor89 — are still rampant, and hence the rules of the
Code are timely.
New indulgences are those which have not yet been
promulgated at Rome, and are therefore not registered in
the office of the S. Congregation of Indulgences. Since
the establishment of the official Acta Apostolicae Sedis
(1909) it is easy to know what indulgences are authenti-
cally promulgated.
Indulgences are generally granted in forma gratiosa,
and do not therefore, per se, require an executor. How-
ever, if the rescript contains a favor destined for the pub-
lic welfare, such as an indulgence, it must be presented
to the Ordinary for recognition. This does not mean
that the indulgence could not validly be gained if the
Ordinary would fail to recognize it, unless indeed there is
attached an invalidating clause to that effect.40 A pastor,
therefore, who receives from Rome an indulgence for his
parish, may not publish it before his Ordinary has been
informed or advised.41 Neither may regulars or religious
communities promulgate indulgences which they have re-
ceived without the consent of the local Ordinary. No
exemption may be rightfully claimed from this law.41
The Ordinary is the one in whose diocese the religious
Q
*t See, for instance, the facts re- the Apostolic See (Beringer, /. c,
ported by Beringer, I. c, p. 118 f.: p. 112), nor by our text,
an indulgence of 8o,ooo years for 41 S. 0.t July 8, 1846, ad i,
one prayer! (Coll. P. F., n. 1008).
40 The invalidity is stated neither 42 Trid., sesa. 21, c. 9, dt ref.;
by the Council of Trent, nor by S. C. C, Jane ai, 1760 (Richter,
Trid., p. 133, n. 3).
jle
C^ ^ -. %\j* Original from
UNIVERSITY OF WISCONSIN
372 ECCLESIASTICAL THINGS
have their house or church and, according to can. 198, § 1,
also the vicar-general, the administrator, a prelate
nullius, an Apostolic vicar or prefect.
A strict prohibition to publish indulgences formerly
bound confraternities,4* to whom no spiritual favors or
indulgences could be communicated without the formal
recognition and knowledge of the Ordinary. Now, how-
ever, all that is required is that the Ordinary take cog-
nizance of the indulgence — praevia cognitione Ordi-
narii44
No recognition or cognizance by the Ordinary is re-
quired for promulgating indulgences granted by the Pope
" Urbi et orbi." To gain these it suffices that the faith-
ful be certain that the grant has been made by the
Pontiff.4* Thus a religious superior, also of a female
congregation, or a pastor, upon reading in the Acta A p.
Sedis of an indulgence granted " Urbi et orbi" may ap-
ply it at once to his congregation.
Can. 920 embodies a law partly contained in a decree
of Benedict XIV, Jan. 19, 1746, recalled to the knowledge
of the bishops by Pius X, and finally by the present
Pontiff. The respective documents ordain that general
concessions of indulgences intended for all the faithful
must be submitted to the S. Poenitentiaria. A general in-
dulgence is one that can be gained by all the faithful every-
where and at any time (universis catholici orbis christi-
fidelibus). A particular indulgence is one that can be
gained either by belonging to a certain confraternity or
by using a specified devotional object, or one granted to a
certain person. Thus Pius X was wont to grant to
48 Clement VIII, Dec. 7. 1604. *B S. C Indulg.. July 1, i8j9, ad
17. 6 (PrinziraJii, n. 491).
44 S. C. Indulg.. Jan. R. 1861:
(Beringer, I. c, p. 539, 551).
jle
% ,] , Original from
UNIVERSITY OF WISCONSIN
CANON 920 373
■
priests orally the /acuity of attaching the toties quoties
indulgence to crucifixes. Such particular indulgences or
faculties need not be reported to the above-named Sacred
Congregation. Neither need indulgences granted to a
certain diocese, or confraternity, or order, or religious
congregation, if not intended for all the faithful, be re-
ferred to Rome. But all general indulgences must be re-
ported. This rule was made to eradicate abuses and
scruples which may arise from a publication made with-
out the knowledge of the S. Congregation."
The Code requires that authentic copies of the conces-
sions granted be submitted to the S. C. This means that
either the original grant, as issued by Rome, or in case
this is impossible or impracticable, an authenticated copy
be sent to Rome. Any ecclesiastical notary may make the
copy. A photographic reprint would also be considered
authentic. The texts of Pius X and Benedict XV only
mention documenta exhibenda, but failure to send the
document — which Pius X demanded to be done within
six months from the date of issuance — would entail
invalidity of the indulgence.
To return to can. 919, § 2, the following remarks con-
cerning the publishing of books, pamphlets, or leaflets, or
summaries of indulgences, may prove useful. The Code
refers to can. 1388, which requires the permission of the
local Ordinary, according to the well-known Constitution
of Leo XIII, " OfUciorum ac tnunerum," Jan. 25, 1897,
n. 17. But § 2 of can. 1388 also requires the express per-
mission of the Holy See for the publication, in any lan-
guage, of an authentic collection of prayers or good works
46 S. C. Indulg., April 14. 1856 S., II, 235) ; Benedict XV, " Quan-
(Prinzivtlli, 11. 556); Benedict XIV, doquidem," Sept. 16, 1915 {A. Ap.
Jan. io, 1746; Piui X, "Cum per S., VII, 457 f.).
Apostolical," April 7, 1910 (.A. Ap.
§le
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
374 ECCLESIASTICAL THINGS
to which the Apostolic See has attached indulgences, of a
list of Apostolic indulgences, and of a summary of in-
dulgences which have been previously collected but never
approved, or are for the first time collected. Hence every
new collection or new list (elenchus) or summary of in-
dulgences which has not yet been approved by the S.
C. Indulg., needs the express permission of the Holy
See 4T and of the Ordinary. If an indulgence, or a list,
or summary, or collection of indulgences which have been
approved by the S. Congregation, or are taken from an
Apostolic brief or rescript, is to be printed or published,
the Ordinary may give permission to do so without sub-
mitting the same to the S. Congregation, unless a special
prohibition has been issued.*8 Religious superiors may
have a summary of the indulgences granted to confra-
ternities established by their institute printed and circu-
lated with the approval or visum of the Ordinary.4*
plenary indulgences
Can. 921.
§ 1. Indulgentia plenaria concessa pro festis Domini
Nostri Iesu Christi vel pro festis Beatae Mariae Vir-
ginis, intclligitur concessa dumtaxat pro festis quae
in calendario universali reperiuntur.
§ a. Concessa indulgentia plenaria vel partialis pro
festis Apostolorum, intclligitur concessa dumtaxat
pro eorum festo natali.
§ 3. Indulgentia plenaria concessa ut quotidiana per-
petua vel ad tempus visitantibus aliquam ecclesiam
vel publicum oratorium ita intelligenda est ut quacun-
Q
4TS. C Iodic, Aug. 7. 1897 (Coli. «» S. C Indulg., Jan. 8. 1861
T. F., n. 1978). (Prinzivalll, n. 689); Bcringcr, I. c,
«SS. C. Indulg., Jan. 21, 1858 p. 116.
(Priozlvalli, n. 674).
* I Originalfrom
gle
UNIVERSITY OF WI5CON5I
"-.
CANON 921 375
que die, sed semel tantum in anno, ab unoquoque fideli
acquiri possit, nisi aliud in decreto expresse dicatur.
A plenary indulgence is the remission of the whole debt
of temporal punishment due to sin. To gain it fully, one
must be free from all affection for sin.
-
A partial indulgence is the remission of a part of the
temporal punishment due to sin, and is gauged by the
public penances or penitential canons of the early Church.
In this sense a partial indulgence is indeed a remittance of
penances imposed by the former penitential discipline and
valid before the external forum of the Church, but it
would be wrong to imagine that this is its only effect.
Even a partial indulgence signifies and effects the remit-
tance of temporal punishments due to sin before God or
in the court of conscience. Consequently, an indulgence
of seven years means a remission of the temporal punish-
ments which were formerly imposed by the ecclesiastical
authority, for instance, seven years of fasting twice a
week on bread and water, but as effective of true re-
mission.80
Canons 921 sqq. lay down certain rules for the
understanding and gaining of indulgences granted for
certain feasts, sacred places and objects, as well as with,
regard to the time of gaining them.
§ 1 of can. 921 says that if a plenary indulgence is
granted for the feasts of our Lord or of the Blessed
Virgin, it must be understood only of those feasts which
are assigned in the general calendar of the Church, to
wit: Christmas, the Circumcision (New Year's) the Epi-
phany, Easter Sunday, the Ascension, and Corpus Christi ;
or the feasts of the Immaculate Conception, the Purifica-
tion, the Annunciation, the Nativity and the Assump-
60 Pohle-Preuu, /. r« III, p. J3* *■
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
376 ECCLESIASTICAL THINGS
tion of the Bl. Virgin Mary.51 Other feasts mentioned in
private calendars, for instance those of religious, are not
included in this grant.
§ 2 provides that an indulgence, whether plenary or
partial, granted for the feasts of the Apostles, must be un-
derstood of the main or spiritual birthday feasts, not of
other incidental feasts, therefore not of St. Peter's Chair
or Chains, St. Paul's Conversion, etc."
§ 3 declares that if a plenary indulgence is granted as
daily forever or for a certain time (quotidiana perpetua
vet ad tempus), this means that the faithful who visit the
resp. church or public oratory may gain said plenary in-
dulgence on any day, — weekday or Sunday, — but only
once a year, unless the wording contains an extending
clause. Therefore, if the grantor intends to grant an in-
dulgence for every day, he must explicitly say so."
the transfer of feasts and indulgences
Can. 922.
p
Indulgentiae adnexae festis vel sacris supplicationi-
bus vel precibus novendialibus, septenariis, triduanis,
quae ante aut post festum vel etiam eius octavario
perdurante peraguntur, translatae intelliguntur in eum
diem, quo festa huiusmodi legitime transferantur, si
festum translatum habeat ofEcium cum Missa sine
sollemnitate et externa celebratione ac translatio fiat
in perpetuum, vel si transferatur sive ad ternpus sive
in perpetuum sollemnitas et externa celebratio.
To understand this canon it had best be divided into
three parts:
-
<
bi S. C. Ir.dulg., Sept. 18, 1862, 03 S. C. Indulg., March 15, i8S>
11 Ibid., Berioger, I. c, p. 105. (Prinzivtlli, n. 624).
^
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 922 377
1. The indulgences here mentioned may be plenary or
partial, and are granted for certain feasts, processions,
or prayers recited during a certain time, three, seven or
nine days. These processions or prayers (novenas. tri-
duums or septenaries) may be performed either before or
after the principal feast or during its Octave.
2. If a feast is legitimately transferred to another day,
the indulgences, too, may be gained on that day. This is
a general rule, established by the decree of Aug. 9,
1852."
3. Here a distinction must be made as to transfer and
solemnity: (a) If the feast has its office and Mass — al-
though without solemnity and external celebration — and
is transferred to another day in perpetuum, or forever,
the indulgences are to be gained only on the day to which
the feast is transferred. Thus, for instance, if the feast
of a Saint is transferred forever to a day which would
not otherwise be his dies natalis, the indulgence granted
for his feast is also transferred."
(b) If the feast is transferred as to its solemnity and
external celebration, either accidentally, i.e., ad tempus, or
forever, in perpetuum, the indulgence can be gained only
on the feastday thus transferred.
A feast may be transferred ad tempus on account of a
concurring feast. Example : On All Souls' Day a plenary
indulgence toties quoties may be gained. However, it
may happen that Nov. 2nd falls on a Sunday. In that
case the indulgence can be gained on Monday, Nov. 3,
because it is attached, not to Nov. 2nd, but to All Souls'
Day.D0 Note that only a Sunday may interfere with the
celebration of All Souls' Day, which is a first-class festi-
■4 PrinziviM, n. 627. Ba S. O. (Seel. Indulg.). Dec 14*
B3 5. O., June 13, 19", ad 1 1916 (A. Ap. S., IX, 179).
(A. Ap. 5., VI, 624).
jle
£ * ^ ^ %\*% Original from
UNIVERSITY OF WISCONSIN
378 ECCLESIASTICAL THINGS
val, and hence all particular feasts proper to certain
places, churches, religious orders, and congregations, must
make way for All Souls' Day and therefore be transferred
to another day.5T
A feast is transferred in perpetuum generally to a Sun-
day, for instance, the feast of SS. Peter and Paul, Epiph-
any (in France), etc. On that day, therefore, the
solemnity and external celebration take place as if it were
the proper day, even though the office and the Mass have
been said on the latter. It may be asked : What does ex-
ternal celebration mean? It means the special prayers,
solemn functions, and gathering of the faithful in church,
exposition of the Saint's image or picture,08 etc. The
transfer of the indulgences takes place for religious
orders or congregations no matter whether the transfer
of the feast itself is made for the whole order or only
for a province or house by reason of the diocesan or
provincial directory.00 And the members must follow the
directory of their respective province. The faithful may
gain the indulgences attached to a visit of a church of re-
ligious either on the day on which the diocese, or on the
day on which the religious themselves celebrate the feast,
but not on both.80
the day for gaining indulgences
Can. 923.
Ad lucrandam indulgentiam alicui diei affixam, si
visitatio ecclesiae vel oratorii requiratur, haec fieri
6T S, Rit. C, Feb. 28, 1917 (^- M S. O. (Sect. Indulg.), June 13.
Ap. S., IX, 1S6). 19". ad ' {A. Ap. S., IV. 624).
KB Cfr. Ephemerides Liturgical, 00 S. C. Indulg.. Jan. 12, 187B:
1892, p. 700, which says that it Beringer, L c, p. m.
ii immaterial whether all these ar
only parts occur.
jle
Original from
UNIVERSITY OF WISCONSIN
p
CANON 924 379
potest a meridie diei praecedentis usque ad mediam
noctem quae statutum diem claudit.
To gain an indulgence which is attached to a certain
day, if visiting a church or oratory is required, the visit
may be made from noon of the preceding day until mid-
night of the day proper. This rule applies to all indul-
gences, plenary, partial, totics quo tics, to such already
granted or yet to be granted, no matter how the time or
day may be designated. fl! Thus, for instance, the toties
quoties indulgence granted for All Souls' Day may be
gained from noon, Nov. Tst, to midnight, Nov. 2nd.
LOSS OF LOCAL AND REAL INDULGENCES
a
Can. 924.
§ 1. Ad norman can. 75, indulgentiae adnexae alicui
ecclesiae non cessant, si ecclesia funditus evertatur
rursusque intra quinquaginta annos aedificetur in
eodem vel fere eodem loco et sub eodem titulo.
§ 2. Indulgentiae coronis aliisve rebus adnexae tunc
tantum cessant, cum coronae aliaeve res prorsus desi-
nant esse vel vendantur.
§1. Indulgences attached to a church are not lost even
if the church is entirely destroyed, provided it is rebuilt
within the space of fifty years on the same or nearly the
same place, and under the same title.
This is according to can. 75. If the new church would
be built under the same title, for instance, Holy Rosary,
on the same place where the old one stood, or not more
than twenty or thirty paces distant therefrom, the indul-
gence would not be lost.*3 But if the new church, though
ei S. O. (Sect. Indulg.), Jan. j6, 02 5. C. Indulp., March 29, 1886
1911 (A. Ap. S., Ill, 6*). (.A. S. S.f 19. 9Jf->.
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
-
■
pi
380 ECCLESIASTICAL THINGS
under the same title, would be built on the cemetery, the
indulgence would be lost." The same title must be at-
tached to the whole building. Therefore it would not be
sufficient to retain the indulgence if the new church were
built on the same spot, but under a different title, even
though a chapel or altar under the old title were erected
in the new church.**
§ 2. Indulgences attached to rosaries (beads) and
other objects are lost only if the beads or objects are de-
stroyed or sold. If blessed crucifixes or crosses perish
entirely, the indulgences attached to them are lost, but if
only a small portion is destroyed or lost, this part may be
renewed without losing the indulgences. If the cross is
removed only temporarily, for a special reason, no new
blessing is required." If crosses or images of the XrV
Stations are removed for a time and replaced, the indul-
gences are not lost. If the crosses of the XIV Stations,
— not the images, which are not necessary for the indul-
gences,— are entirely destroyed or decayed, the indul-
gences are lost; if only a small portion is destroyed this
may be repaired. oc It is similar with beads. If the
single beads are torn asunder but collected again and put
on a new string, the indulgences are not lost, even though
four or five new beads would have to be added.*7
The selling of such articles entails entire loss of the in-
dulgences, no matter whether a profit was made or not.*8
The Code says nothing of giving them away, and there-
fore we may conclude that, unless the article together
with the indulgences is the exclusive property of any one
88 S. C. Indulg., Aug. 9. 1843. ^ eo S. C. Indulg., Sept. 20, 1839
a (Prinzlvalli, n. 557). (ibid., n. 694).
•4 BerinRer. I. c„ p. 70. «' S. C. Indulg., Jan. 10, 1839
•ft S. C. Indulg., Jin. 30. "839. (ibid., 682).
ad 5 (PriQHvalli. n. 686). 68 S. C. Indulg., Dec. 14, i;aa
(ibid,, n. 50).
jle
J Original fro ni
UNIVERSITY OF WISCONSIN
CANON 925 381
person, the indulgences are not lost if the article is given
to another."
ARTICLE II
THE GAINING OF INDULGENCES
■
9
Can. 925.
§ 1. Ut quis capax sit sibi lucrandi indulgentias,
debet esse baptizatus, non excommunicato, in statu
gratiae saltern in fine operum praescriptorum, subditus
concedentis.
§ a. Ut vero subiectum capax eas revera lucretur,
debet habere intentionem saltern gencralem eas ac-
quirendi et opera iniuncta implere statuto tempore ac
debito modo secundum concessions tenorem.
«
To be capable of gaining an indulgence for onself one
must be baptized, not excommunicated, in the state of
grace at least when he complies with the last work pre-
scribed, and a subject of the grantor. To really gain the
indulgences the capable subject must have at least the gen-
eral intention of gaining them and comply with the con-
ditions prescribed at the time and in the manner pre-
scribed in the grant.
The text distinguishes between the capability of gain-
ing indulgences and the actual gaining of them. The only
capable subject is a baptized Catholic who is not excom-
municated, for a non-Catholic can hardly be styled sub-
ditus concedentis. That the state of grace is necessary
appears from the nature of an indulgence as a remission
of temporal punishment after the guilt of mortal sin has
been wiped out. But the state of grace is required only
00 Somewhat different Beringer, /. e.. p. 359. but he wrote before the
Code was promulgated.
Go >gle
I , Original fro m
UNIVERSITY OF WISCONSIN
382 ECCLESIASTICAL THINGS
St
for tihe last act to be performed. Benedict XIV says
that if one were not in the state of grace when making
the visits of the churches prescribed for gaining the
jubilee indulgence, but made a worthy confession and
communion before he makes the last visit, he would gain
the indulgence.70 Of course, this is only the limit, not an
example for imitation.
Another condition is that one must be a subject of the
grantor. Therefore a bishop may grant indulgences only
to his own diocesans, and a strange bishop could not,
even with the consent of the local Ordinary, grant indul-
gences to one not of his diocese.71
For the actual gaining of indulgences the following con-
ditions are required.
(a) One must have at least a general or habitual in-
tention of gaining all indulgences which one may obtain.
This lasts until formally revoked. But if Mass is said
on a privileged altar, no special intention is required,
nor even the general one of gaining the indulgence at-
tached to that altar.72
(b) The prescribed works must be performed within
the time prescribed, which, as said above, runs from noon
to midnight. But if a special hour is stated, this must be
observed.73 Besides, the good works must be performed
in the manner prescribed. Thus, as a rule, the prayer
"Sacrosanctae" must be recited kneeling; yet if one is
legitimately prevented, e.g., by sickness or physical inabil-
ity, from bending the knees, he may gain the indulgence
walking or standing.7* The indulgences attached to the
10 " Convocatis," Nov. 25, 1749. « S. C. Indulg., March ia, 1855
«. XLVII; "Inter pratteritos." (Priazivalli, n. 661).
Dec. 3. 1749. 8 75- ™S. C. Indulg., March 7, W«i
Ti S. C. Indulg.. Dec. 17, 1838 id 4 {ibid., n. 511).
'(Prinzivalli, n. 480); Jan. ia, 1878, T*S. C. Indulg., July 5, 1855;
ad a {A. S S.. IX, 153 f.). Jan. 7, 1830 {ibid., nn. 652, 654).
ibyC *Ie
j , Original fro m
UNIVERSITY OF WISCONSIN
CANONS 926-927 383
«»
Rosary and the Hail Mary may be gained by those who
recite these prayers alternately.™ If a member of a
confraternity, sodality, or congregation, for reasons of
sickness or imprisonment, cannot pay the prescribed visit
to a church, he may gain the indulgence if he devoutly
performs the other works described.™ For the rest, the
tenor of each rescript must be carefully inspected and its
regulations observed.
Can. 926.
■
"-.
Plenaria indulgentia ita concessa intelligitur ut si
quia earn plenarie lucrari non possit , earn tamen partia-
liter lucretur pro dispositione quam habct.
A plenary indulgence is understood to be granted in
such a way that if one cannot gain it in its entirety, one
may gain it partially, in proportion to his disposition.
See can. 921.
Can. 927.
Nisi aliud ex concessionis tenore appareat, indul-
gentias ab Episcopo concessas lucrari possunt turn
subditi extra territorium, turn peregrini, vagi omnes-
que exempti in territorio degentes.
Unless the tenor of the grant sounds differently, indul-
gences granted by the bishop may be gained by his sub-
jects also when outside their own diocese. Peregrini,
vagi, and all who live in a territory may gain the indul-
gences granted for that territory. This, of course, is to
be understood of indulgences that are not merely local;
for local indulgences cannot be gained outside the place
to which they are attached.
to S. C. Indulg., March i, 18.10 to S. C Indulg., Aug. a, 1760
(ibid., n. 4*o>. (ibid., n- 24B).
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
Q
384 ECCLESIASTICAL THINGS
Can. 928.
§ 1. Indulgcntia plcnaria, nisi aliud expressc cautum
sit, acquiri potest semel tantum in die, etsi idem opus
praescriptum pluries ponatur.
§ 2. Partialis indulgentia, nisi contrarium expresse
notetur, saepius per diem, eodem opere repetito, potest
lucrifieri.
Unless the contrary is expressly stated, a plenary indul-
gence may be gained only once a day, even though the
same works are performed several times. But a partial
indulgence may be gained as often as the works pre-
scribed are repeated, unless the contrary is expressly
stated.
The first clause is taken from a decree of the S. Con-
gregation, which mentions a visit to a church or another
good work to which a plenary indulgence is attached.
This indulgence, says the decree, may be gained only once
a day.TT Whether several different plenary indulgences
may be gained on the same day by performing different
works prescribed, although only one confession and com-
munion is made, is another question.78 Our Code only
mentions idem opus, the same work, and hence it would
be possible to gain several plenary indulgences on one
day.
77 S. C. Indulg.. March 7. "678: affirms, and S. C Indulg., Jan. ia,
Benedict XIV, " Inltr praeUritos," 187B, ad 3, {Coll. P. P„ n. i486)
Dec. 3, 1749. I 84. favors the view.
78 Beringcr, /. c, ed. 13, p. 107,
3
oogle
f^ ^ s ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 929 385
a
VISIT OF A SEMI-PUBLIC ORATORY
a
Cam. 929.
Pideles utriusque sexus qui, perfectionis studio vel
institutionis seu cducationis aut etiam valetudinis
causa in domibus ecclesia vel publico sacello carenti-
bus, dc consensu Ordinariorum constitutes, vitam
communem agunt, item que personae omnes ad ill is
ministrandum ibidem commorantes, quoties ad lucran-
das indulgentias praescribatur visitatio alicuius eccle-
siae non determinatae, vel indeterminati alicuius
publici oratorii, visitare queunt propriae domus saccl-
lum in quo obligationi audiendi Sacrum iure satisfacere
possunt, dummodo cetera opera iniuncta rite pracsti-
terint.
■
Up to the year 1909 practice and the law prescribed a
visit to a public oratory, but several indults were granted
enabling the inmates of religious institutes and seminaries
to gain the indulgence in their own chapels." Out of
these indults developed the general grant,90 given in the
year 1909, which has entered our Code. The meaning of
can. 929 is that :
(a) All the faithful of both sexes, who lead a life in
common, cither as religious or as inmates of an institu-
tion, a place of study, a hospital, or asylum for the aged
or disabled, may gain an indulgence for which the visit of
a public oratory is prescribed,
(b) By visiting the semi-public oratory*1 or chapel in
the house in which they reside, if this house has no public
oratory or church attached, provided the house has been
70 Beringer, /. c, p. 87. 81 To visit a churcb or chapel,
ho S. O.. Jan. u» >OOp {A. Ap. if one be physically or morally near
5., I. aio). it; Beringer, /. c, p. 86 f.
'■-.
JbyC jlc
j ^ Original fro rn
UNIVERSITY OF WISCONSIN
■
pi
N
386 ECCLESIASTICAL THINGS
established with the consent of the Ordinary and is con-
sidered a religious institute.
(c) The same indulgence may be gained in the same
way by all who wait on or serve the members of such a
house and reside therein,
(d) But this favor can be made use of only if the
church or public oratory, the visit of which is prescribed
for gaining the indulgence, is not determined or desig-
nated. Hence, if the visit of a certain church or oratory,
for instance, the parish church, or the church of a re-
ligious order, were expressly prescribed, the indulgence
could not be gained in the manner described above.
(e) Finally, in order to gain the indulgence in the
above-named semi-public oratory, the other works or con-
ditions imposed must be complied with.
We may add that all who are chronically or continually
ill or prevented by some other physical obstacle from
visiting a church or public oratory, may gain the indul-
gence by contritely confessing their sins and, instead of
receiving Holy Communion and visiting a public oratory,
performing some other good works which the confessor
may impose on them.82 This privilege was extended to
all sick and aged persons who live in a community and
under a rule — therefore also to religious societies which
are not religious communities in the strict sense, — and
who cannot make the prescribed visit. For these the
confessor may prescribe other pious works.88
82 S. C. Indulg., Sept. 18, :86j 83 S. C Indulg., Jan. if, 1886
{Call. P. F., n. 1231). {Coll P. F., n. 1649)-
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 930 387
indulgences applicable to the dead
Can. 930.
Nemo induigcmias acquirens potest cas aliis in vita
degentibus applicarc; animabus autem in purgatorio
detentis indulgentiae omnes a Romano Pontifice con-
cessae, nisi aliud constet, applicabilcs sunt.
s
No one who gains indulgences can apply them to other
living persons, but he may apply all indulgences granted
by the Roman Pontiff to the poor souls in Purgatory,
unless a contrary provision has been made. The first
part of this law is clearly intended to remove abuses. It
has a dogmatical bearing, because the living gain indul-
gences by way of absolution, which is a strictly personal
affair, whereas the poor souls receive the benefit of indul-
gences by way of suffrage and are in the state of grace.
The text says that all indulgences granted by t/ie Roman
Pontiff are applicable to the souls in Purgatory. By de-
■ cree of Sept. 30, 1852, the S. Congregation had declared
that all indulgences contained in the so-called Raccolta
could be applied to the poor souls.84 This application
must not be understood as if the living person first gains
the indulgence for himself, and then transmits it to the
poor souls, but in this sense, that he may gain it either
for himself or for the dead.85
I* Prinzivalli, a. 6j8. of indulgences applicable to the poor
so Bcringcr, i c, p. 73. The 6rtt souls is that of CallUtua III, 1457;
genuine document of a papal grant Beringer, p. 51 f.
c
3
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
388 ECCLESIASTICAL THINGS
confession and communion
Can. 931.
§ 1. Ad quaslibet indulgentias lucrandas confessio
forte rcquisita peragi potest intra octo dies qui imme-
diate praecedunt diem cui indulgentia fuit affixa;
communio autem in pervigilio eiusdem diei; utraque
vero etiam intra subsequentem totam octavarn.
§ a. Pariter ad lucrandas indulgentias pro piis exer-
citiis in triduum, hebdomadam, etc., duetts concessas,
confessio et communio fieri etiam potest intra octavarn
quae immediate sequitur exercitium expletum.
§ 3. Christifideles qui solent, nisi legitime impedian-
tur, saltern bis in mense ad poenitentiae sacramentum
accedere, aut sanctam communionem in statu gratiae
et cum recta piaque mente reciperc quotidie, quamvis
semel aut iterum per hebdomadam ab eadem absti-
neant, possunt omnes indulgentias consequi, etiam
sine actuali confessione quae ceteroquin ad eas lucran-
das necessaria forct, exceptis indulgentiis sive iubilaei
ordinarii et extraordinarii sive ad instar iubilaei.
§ 1. If confession is required for gaining an indul-
gence, it may be made within the eight days immediately
preceding the day to which the indulgence is affixed;
Communion may be received on the day before the feast;
both confession and communion may be received dur-
ing the entire octave. For instance, one may receive
Holy Communion on the feast of All Saints, in order to
gain the toties quotics indulgence of All Souls' Day.
Rut if All Souls' should fall on a Monday and All Saints'
on a Saturday, Holy Communion would have to be re-
ceived on Sunday, for this is the day before the feast to
jle
£ " ^ -. -Ar* Original from
UNIVERSITY OF WISCONSIN
CANON 931 389
which the indulgence is affixed." Confession, if pre-
scribed as a condition for gaining the indulgence, must be
made sacramentally within eight days preceding the day
to which the indulgence is attached.87 We mention sacra-
mental confession because this is intended by the legisla-
tor as an opus praescriptum?* However, if the penitent
would have no sins at all, not even venial sins, to confess,
or if he would confess a venial sin for which the con-
fessor would think it opportune not to impart absolution,
sacramental absolution would not be required for gaining
the indulgence."9
The Code adds that both confession and Communion
may be made within the octave following the feast day
proper. This is a new law, at least we could not find
any text corroborating this enactment. It can apply only
to feasts which have an octave, and hence we hardly
believe that the Portiuncula or All Souls' Day indulgence
could be gained by going to confession and Communion
during the eight days following Aug. 2nd or Nov. 2nd.
Yet we do not state this opinion without misgiving, espe-
cially because of
§ 2, which rules that indulgences granted for pious
exercises conducted during a triduum or a week may be
gained if the prescribed confession and Communion are
made during the octave immediately following the close
of these devotions. Of course in that case the visit of
the church or attendance at these pious exercises is
required during the time these devotions are held. But
confession and Communion would then be the last work
required for gaining the indulgence.
...
89 S. C. Indulg., Oct. 6, 1870 §8 Benedict XIV, "Inter prat-
ICtll. P. F.w n. 1358)- tiritoir Dec j, i?49. B 77.
87 S. O. (Sect. Indulg), April 23. 60S. C Indulg., Aug. jo, i8aa,
1914 {A. Af. S., VI, 308). ad a (PrinzWalli, n. 43a).
>Ie
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
'■-.
390 ECCLESIASTICAL THINGS
§ 3 provides that those who are accustomed to go to
confession at least twice a month, or to communicate
daily in the state of grace and with an upright and holy
intention, although they do not receive one or the other
time a week, may without confession gain all the indul-
gences for which confession is prescribed as a necessary
condition. From this favor are excluded indulgences of
the ordinary and the extraordinary jubilee.80
Clement XIII had already granted indulgences to those
who go to confession weekly. Pius X extended this
privilege to daily or quasi-daily communicants.81 There-
fore in our text two classes are distinguished: (a)
Those who go to confession twice a month — which
means every two weeks 02 and (b) those who communi-
cate daily or almost daily. For the latter no certain
time for confession is prescribed, as they arc presumed
to be in the M state of grace." Monthly confession would
be sufficient. But from this favor are excluded jubilee
indulgences, for which the Sovereign Pontiff is entitled to
impose confession as a special work.98
prescribed works
Can. 932.
Opere, cui praestando quis lege aut praecepto ob-
ligator, nequit indulgentia lucrifieri, nisi in eiusdem
concessione aliud expresse dicatur; qui tamen praestat
BO An ordinary jubilee is one occasions, e. g., the accession of a
granted at stated periods. Boniface pope, or hia golden sacerdotal jubi-
VIII decreed (c. 1, Extrav. Comm., Ice.
V, 9) that such a one should be held 01 S. C. Indulg., Feb. 14, 1906
fcry 100 yen'. Later one was (Coll. P. F .. n. *jj8).
celebrated every 33 years, and 02 S. C. Indulg., Feb. a$, 1885
finally every 35 years, as decided (ibid., n. 1653).
by Paul II in 1470. An extraordi- OJ Benedict XIV, "Inter frasttri-
U9ry jubilee is one held on special tos," Dec. 3, 1749, I 77 f.
jfe
^ ^ ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 933 39*
opus sibi in sacramentalem pocnhcntiam iniunctum
et indulgentiis forte ditatum, potest simul et poeni-
tentiae satisfaccrc et indulgentias lucrari.
Can. 933.
Uni eidemque rei vel loco plures ex variis titulis
adnccti possunt indulgentiac ; sed uno eodemque
opere, cui ex variis titulis indulgentiac adnexae sint,
non possunt plures acquiri indulgentiac, nisi opus
requisitum sit confessio vel communio, aut nisi aliud
expresse cautum fuerit.
No indulgence can be gained by performing a good
work to which one is obliged by law or precept, unless
the grant expressly admits such duplication. Thus fast-
ing in Lent cannot be taken as fasting for gaining an
indulgence. A priest cannot comply with the condition
of saying certain prayers for gaining an indulgence by
reciting the Breviary." But religious may perform the
pious devotions which they are wont to perform, not as
strict obligation, but in virtue of their constitutions, with
the intention of gaining indulgences, which they thus
really gain,85 provided it is not the Breviary or Holy
Office which they are bound to recite by common law
(can. 610).
Those, however, who perform a good work imposed as
a sacramental penance may thereby comply with the
penance and gain the indulgence, if said good work be in-
dulgenced.
To one and the same object or place indulgences may
be attached on various titles, but by one and the same
good work, to which by reason of different titles indul-
NS. C. Indulg., May 29, 1841, ad 2 (Prinzivalli, n. 5").
M Be ringer, /. c, p. 81.
>Ic
% ,1,, Original from
UNIVERSITY OF WISCONSIN
392 ECCLESIASTICAL THINGS
genccs arc attached, these various indulgences cannot be
gained unless the work prescribed be confession or com-
munion, or unless the rescript read otherwise. Thus if a
plenary indulgence is attached to a church by reason of
the patronal feast and for the Portiuncula indulgence, all
these may be gained by one confession and Communion,
unless confession is required for other reasons, i.e., to
put one into the state of grace. But the prayers or good
works must be repeated for every indulgence.08
I Can. 934.
§ 1. Si ad lucrandas indulgentias oratio in genere
ad mentem Summi Pontiftcis praescribatur, mentalis
tantum oratio non sufficit ; oratio autcm vocalis potent
arbitrio fidelium deligi, nisi peculiaris aliqua assigne-
tur.
§ 2. Si peculiaris oratio assignata fuerit, indulgentiae
acquiri possunt quocunque idiomate oratio recitetur,
dummodo de fidelitate versionis constet ex declaratione
vel Sacrae Poenitentiariae vel unius ex Ordinariis loci
ubi vulgaris est lingua in quam vertitur oratio ; sed
indulgentiae penitus cessant ob quamlibet additionem,
detractionem. vel interpolationem.
§ 3. Ad indulgentiarum acquisitionem satis est ora-
tionem alternis cum socio recitare, aut mente earn
prosequi, dum ab alio recitatur.
§ I. If general prayers for the intention of the
Sovereign Pontiff are prescribed for gaining an indul-
gence, mental prayer is not sufficient; vocal prayers may
be chosen ad libitum by the faithful, unless some special
oralion is prescribed.07 Mental prayer is praiseworthy,
but to gain indulgences, vocal prayers are required, that
MS. C Indulff.. May ao. 1841; BT Benedict XIV, " Ctmvoeatis,"
Jan. 12, 1878 {Coll. P. F„ nn. Nov. 25, 1740, S LI.
i486 ad 3).
jle
N /""* ^ * -,1,-, Original from
UNIVERSITY OF WISCONSIN
CANON 934 393
is to say, the words must be uttered exteriorly, though
they need not be audible. How many " Our Fathers "
and " Hail Marys " should be recked the S. Congregation
refused to decide.91 Any prayer may be chosen, pro-
vided, of course, it be orthodox and approved by the
Church. The general intention of the Holy Father is
the exaltation of the Church, the propagation of the
faith, the uprooting of heresies and schisms, the con-
version of sinners, and peace and concord among the
nations.
§2. If a special prayer is prescribed, the indulgence
may be gained by reciting that prayer in any language,
provided the accuracy of the translation is assured by a
declaration of either the S. Poenitentiaria or the Ordinary
of any diocese where the language is spoken. But all
indulgences cease if any addition, subtraction or inter-
polation is made to the required prayers. Concerning
the quality of the prayer it may be worth while to add
a few remarks on the Officium Parvutn B. M. V. A
plenary indulgence may be gained by those who recite
this office daily for one month; seven years and seven
quadragenes (*.<?., 490 days of the old fast) for reciting
it once a day. Formerly this office had to be said in
Latin, but Leo XIII permitted it to be recited, privately,
in the vernacular without losing the indulgence.1"*
For the approval of translations the diocesan ordi-
naries are competent. The text says : unius ex Ordinariis,
one of the Ordinaries. Hence if the Ordinary of one
diocese in our country approves an English translation of
a prayer, it is sufficient for all dioceses where English is
08 S. C. Indulg., May 39, 1B41; Dec. ag, 1864; Sept. 13. 1888; Aug.
Sept. 13, 1888 (Coll P. F., nn. 18, 1903 (Colt. P. F., Vol. II, p.
922, 1693). 699)'
p» S. C. Indulg., April 30. 18s*;
>Ic
£ * ^ ^ ,l„ 'Original from
UNIVERSITY OF WISCONSIN
394 ECCLESIASTICAL THINGS
spoken, even across the sea. The Ordinary is the one
in whose diocese the English translation is either printed
or published.1
The last clause of § 2 speaks of addition, diminution,
and interpolation, all of which processes are prohibited
under penalty of depriving a prayer of its indulgences.
Such an addition, for instance, is the repetition of the
mysteries in saying the Holy Rosary.2 No particular
rescript can abolish this general law, unless it be granted
after the promulgation of the Code.
§ 3. To gain an indulgence it is enough to recite the
prescribed prayer alternately with a companion, or to fol-
low it in one's mind while another recites it. Thus by
reciting the Rosary or the Angelus in common or together
with others the indulgences may be gained by all who
participate in the recitation,* and even by those who fol-
low the one who recites the prayers only mentally, not
orally.
COMMUTATION OF PIOUS WORKS
E
Can. 935
Pia opera ad lucrandas indulgentias iniuncta, con-
fessarii possunt in alia commutare pro lis qui, legitime-
dctenti impedimento, cadem praestare nequeant.
Pious works imposed for gaining indulgences may be
commuted by the confessor into other good works for
those who are lawfully prevented from performing the
good works prescribed.
1 Can. 1390. If no other reason, at least the
3 There is absolutely do founda- danger of exposing the faithful to
tion for the assumption that a par- losing the indulgence should stop
ticular decision or indult given for this practice.
any diocese or for a particular S S. C. Indulg., 1820, ad 4
language, can be transferred to (Prinzivalli, n. 420).
other dioceiei and other language!.
jle
■ , l , Original from
UNIVERSITY OF WISCONSIN
CANON 936 395
a
Q
Thus, as mentioned above, sick and aged persons who
cannot visit a prescribed church may have that require-
ment changed into some other good work.* Christians in
China and Siam, who were members of the Confraternity
of the Holy Rosary, but unable to recite the beads in
common, were permitted to have this work changed into
other works of charity and religion.6 A commutation
may be granted by the confessor also outside the con-
fessional,0 but not beyond the limits set by the papal con-
stitutions or rescripts.7
N
■
MUTES
Can. 936
Muti lucrari possunt indulgentias adnexas publicis
precious, si una cum ceteris ndelibus in eodem loco
orantibus mentem ac pios sensus ad Deum attollant;
et si agatur de privatis orationibus, satis est ut eas
mente rccolant signisvc effundant vel tantummodo
oculis pcrcurrant.
Mutes may gain the indulgences attached to the re-
cital of public prayers if together with the other faithful
they assist and raise their mind and senses to God ; as to
private prayers it is sufficient that they recollect them in
their mind and follow them either by signs or with their
eyes (if they are able to read).
They need not pronounce the prayers or move their
lips ; nor need they recur to the confessor in each case ;
the law grants them this facility for gaining indulgences.8
4 S. C. Indulg., Jan. 16, 188G, ad 1 Benedict XIV, "Inter praeteri-
2 {Coll. P. F., n. 1649). tos," Dec. 3. 1749. I S* *•
SS. C. P. F, Sept. 19, I77J 8 S. C. Indulg., Feb. 16, 185a;
(Coll., n. 499). July 18. 190a {Coll. P. F.. n. 3147).
• S. C. P. F., Feb. 20, 1801 {Coll,
». 657).
>ogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
TITLE V
EXTREME UNCTION
-
Can. 937
Extremae unction is sacramcntum conferri debet per
sacras unctiones, adhibito oleo olivarum rite bene-
dicto, et per verba in ritualibus libris ab Ecclesia pro-
batis praescripta.
■
Tlie Sacrament of Extreme Unction must be admin-
istered by the sacred anointments, with duly blessed olive
oil, and by pronouncing the words prescribed in the
rituals approved by the Church.
This Sacrament, as the Council of Trent * defines, was
instituted by our Lord and promulgated by St. James
the Apostle in his Epistle, which Luther rejected as
apocryphal. The remote matter is pure olive oil, to the
exclusion of all other oils, such as that made from nuts,
sesame, cottonseed. The proximate matter is the act of
anointing the body. What parts of the body must be
anointed, or how many anointings constitute the essence
of the Sacrament, cannot be determined with certainty
from the ancient rituals, as they show a great diversity.2
However, since in case of necessity (can. 947), a single
unction is admitted as valid, it would be presumptuous
to demand more. Ordinarily, and outside the case of
necessity, the separate anointment of the seats of the five
1 Sess. 14, c. 1: can. 1-3, de er- ments, IV, p. 19; J. Kern, S. J.,
trema L'nct. Tract, de Sacr, Extr. Unit.. 1907.
2 Cfr. Pohle-Preuss, The Sacra-
396
* I Inr»oI*> Original from
.OO^K. UNIVERSITY OF WISCONSIN
CANON 937 397
senses, — sight, hearing, smell, taste, and touch, — con-
stitutes the proximate matter of Extreme Unction.- The
form of the Sacrament consists in the words used at the
anointings, as prescribed by the Roman Ritual.4
u
* Deer, pro Arm. (Denzingcr u. 595).
4 Tit. V, c. i, n. 1.
2
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
■
CHAPTER I
the minister of extreme unction
Can. 938
§ 1. Hoc sacra men turn valide administrat omnis et
solus sacerdos.
§ a. Salvo praescripto can. 397, n. 3, 514, §§ i-3t mini-
ster ordinarius est parochus loci, in quo degit in-
firmus; in casu autcm necessitatis, vel de licentia
saltern rationabtliter praesumpta eiusdem parochi vel
Ordinarii loci, alius quilibet sacerdos hoc sacramentum
ministrare potest.
Can. 939
Minister ordinarius ex iustitia tenetur hoc sacra-
mentum per se ipse vel per alium administrare, et in
casu necessitatis ex caritate quilibet sacerdos.
Every priest, and no one but a priest, may validly ad-
minister this sacrament. This follows from James V,
14 f., and was expressly denned by the Council of Trent.1
Since every priest may validly administer this sacrament,
it follows that excommunicated, suspended, interdicted or
degraded priests are not excluded, though such, of course,
cannot confer it licitly, as it flows from the power of
order, not of jurisdiction. And because no one but a
priest may confer Extreme Unction, no inferior cleric,
though otherwise of the highest rank, can validly admin-
1 Scsi. 14, c. 4, dc extf. Unct.
398
►ogle
k .,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 939 399
ister it. Not even the Pope could grant this power to a
cleric who is not endowed with the priestly character.
The singular (sacerdos, priest) must not be understood as
if several priests could not administer this sacrament
conjointly, as is customary with the Greeks, among whom
seven priests together confer this Sacrament. This cus-
tom has not been reproved by the Church, but the Greeks
are held to believe that one priest is sufficient to admin-
ister Extreme Unction validly and licitly.8
The ordinary minister of Extreme Unction is the priest
of the parish where the sick person resides. In case of
necessity, however, any priest may administer this Sacra-
ment.
Since the administration of Extreme Unction is strictly
a parochial right, it is by law 3 reserved to the pastor, and
assistant priests or curates must have the pastor's per-
mission to exercise it. This permission may be given
habitually. Besides, the diocesan statutes or letter of
appointment4 may determine whether assistants have the
right. The oeconomus, or temporary administrator, of
a parish enjoys full parochial rights and may therefore
give permission to administer this Sacrament 5 to another
priest. Regulars have been enjoined time and again a not
to interfere with this right. Secular Tertiaries are not al-
lowed to receive this Sacrament at the hands of the Friars
Minor.7 To canons of cathedral as well as collegiate
chapters this Sacrament must be administered by the
pastor in whose parish they have their domicile.8 Ex-
2 Benedict XIV. " Etsi pastora- 7, 1698, etc.; Benedict XIV, Dt
lis,' May 26. 174a, I V. n. Ill; Syn. Dioec, VIII, 4, 7; DC, 16, 2.
"Ex quo," March 1, 1756, I 45. 7 S. Kit. C, June 20, 1609 ad 1
s See can. 462. (Dec. Auth., n. 271).
* Can. 476. |6. 8 S. Kit. C. March 17. 1663, ad
5 Can 473; S. C C, Sept. ia, 4; May 13, Dec. 18, 1756 (Die.
1874 '.-). S. S., VIII, 139 I.), Auth., nn. 125s, 344* >-
6C. 1, Clem. V, 7; S. C. C. June
5 unil|r Original from
■OOgie UNIVERSITY OF WISCONSIN
4oo ECCLESIASTICAL THINGS
empt from these rules is the Ordinary of the diocese, to
whom the dignitaries or canons, according to rank and
precedence, should administer Extreme Unction.8 Be-
sides can. 514 must here be applied, as explained else-
where.10
The ordinary minister, says can. 939, is obliged in jus-
tice to administer Extreme Unction either himself or by
a substitute. In case of necessity every priest is bound
by charity to administer this Sacrament. This law was
inculcated by Clement XII and Benedict XIV, who ex-
horted missionaries not to discriminate between rich
and poor, as even pagan physicians do not disdain to
minister to the lower classes (Pariahs).11
That great canonist and Pontiff, Benedict XIV, also
discussed the question whether a pastor is obliged to
administer Extreme Unction to such as are afflicted with
a contagious or epidemic disease. After having quoted
several authors, among them Suarez and Silvius, he con-
cludes that sound theology answers in the affirmative, but
adds that the pastor may send another priest and that
all reasonable precautions should be taken to avoid con-
tagion.12
» Can. 397, n. 3. 11 See the Const it. quoted by Cas-
io Cfr. Vol. Ill, 141 ff.p of thiB parri ad /. e.
Commentary. » D* Syn Dicec, XIII, 19, *-io.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
'■-.
CHAPTER II
the subject of extreme unction
Can. 940
§ 1. Extrema unctio praeberi non potest nisi fideli,
qui post adepturn usum rationis ob innrmitatem vel
senium in periculo mortis versetur.
§ 2. In eadem infirmitate hoc sacramentum iterari
non potest, nisi infirmus post susceptam unctionem
convalucrit et in aliud vitae discrimen inciderit.
Extreme Unction may be administered only to faith-
ful Catholics who have reached the age of discretion and
are in danger of death on account of sickness or old
age. The Sacrament may not be repeated in the same
sickness, unless the patient has recovered after receiving
Extreme Unction and his condition has again become
critical.
The term faithful Catholic includes neophytes, i.e.,
persons newly baptized, though concerning these, the Holy
Office has decided that they may receive the Sacrament
only if they are sufficiently instructed to receive it with
profit and have the intention of receiving it for the bene-
fit of their souls.1
The subject of Exreme Unction must have reached the
age of discretion, i.e., about the seventh year. It is the
purpose of this Sacrament, as the form, Indulnc.il, etc.,
indicates, to wipe out actual sins committed by the bodily
1 S. O., May 10, 1703 »** 8; April 10, 1801, *d 1; S. C. P. F., Sept.
a6, 1821 (.Coll., no. 756, I*!), 708).
401
jle
v ,|y. Original fro ni
UNIVERSITY OF WISCONSIN
402 ECCLESIASTICAL THINGS
a
senses, which could not be accomplished in infants.2
The same rule applies to those who have been insane
from childhood,3 though if the disease was contracted
after the age of discretion, Extreme Unction can be ad-
ministered.
H
The person to whom Extreme Unction is administered,
must be sick or so old that the danger of death is at least
very probable. The Greeks were accustomed to admin-
ister this Sacrament also to the healthy, but the Church
has never tolerated the custom.4 Those who are not sick,
though exposed to probable or certain danger of death
(soldiers, condemned criminals, travellers engaged in a
dangerous journey, etc.) cannot receive this Sacrament.5
Neither may women at childbirth, unless some extraordi-
nary and serious illness should accompany the labor
pains."
The text says ob senium, including those who are in
danger of death on account of old age. Benedict XIV
says that people of advanced age die easily, and old age
leads to a dissolution of the bodily faculties.1 But some
signs of approaching dissolution, such as fainting or sink-
ing spells, should appear before Extreme Unction is given.
Old age is generally held to commence with the sixtieth
year, which also frees from the obligation of fasting.
§ 2 forbids repetition of Extreme Unction in the same
sickness. Benedict XIV, after an interesting historical
investigation, says: 8 If the crisis is passed, but the pa-
ir'
fl S. Thorn., Com. in. Stnt.. IV, B Rit. Rom., lit. V. e- t, n. 9.
dist. 23, q. 3, art. 2; Benedict XIV, « Benedict XIV, Dt Syn. Diotc,
Di Syn. Dioec, VIII, 6. i] S. C. VIII, 5, 1.
Sacr., Aug. 8, 19*0, n. VIII (A. Ap. 7 Ibid., n. a.
S., II, s83), 8 Ibid., VIII, 8. 3. where he meo-
1 Benedict XIV, /. c, VIII. 6, 3 tions the fact that the monks of
f. Hirsau used to anoint their aide
4 Benedict XIV, "Etsi pasloralis," brethren ever? three yrsr.
May a6, 174a, | V, n. II.
§le
Original fro m
UNIVERSITY OF WISCONSIN
CANONS 94*~942 4°3
tient has not entirely recovered, and suffers a serious re-
lapse, Extreme Unction may be administered without
hesitation. If the pastor is in doubt whether the crisis is
a new one, or a continuation of the former, he should
incline to repeated administration, because this is more
in conformity with the ancient practice of the Church.
It is not necessary to await the last stage of danger, or
even the critical moment, and consumptives, etc., may
be anointed even if there is no immediate danger. This
rule applies especially in missionary countries, where
priests are not always to be had.9
■
Can. 941
Quando dubitatur num infirmus usum rationis atti-
gerit, num in periculo mortis reipsa versetur vel num
mortuus sit, hoc sacramentum ministretur sub condi-
tions
When it is doubtful whether the sick person has at-
tained the use of reason — not the age of discretion —
or whether he or she is really in danger of death, or al-
ready dead, Extreme Unction should be conferred con-
ditionally.
According to high medical authority death sometimes
does not occur for an hour or more after a man has
drawn his last breath, and hence Extreme Unction may be
administered during the interval.
Can. 942
Hoc sacramentum non est conferendum illis qui im-
poenitcntes in manifesto peccato mortali contumacitcr
perseverant ; quod si hoc dubium f uerit, confcratur sub
conditions
9 S. C. P. F., Feb. 10, 1801 (Coll., n. 651).
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
404 ECCLESIASTICAL THINGS
This Sacrament may not be administered to those who
stubbornly and manifestly live in the state of grievous sin ;
in case of doubt, however, let it be administered condi-
tionally.
This rule may cause some trouble, especially in the
case of Freemasons and persons enrolled in a cremation
society. All such persons should be admonished to
retract the order they have given to have their bodies
cremated. If they refuse. Extreme Unction cannot be
administered. When and how the admonition is to be
made, is a matter for pastoral prudence; above all, the
danger of scandal must be removed.1
10
Can. 943
D
a
Infirmis autem qui, cum suae mentis compotes as-
sent, illud saltern implicit* pctierunt aut verisimiliter
petiissent, etiamsi deinde sensus vel usum rationis
amiserint, nihilomirus absolute praebeatur.
To those who asked for Extreme Unction at least im-
plicitly or interpretatively whilst in the full possession
of their mental faculties, the Sacrament may be ad-
ministered even though they lose their senses or the
use of reason.
This agrees with the advice given to an American
bishop who had asked which sacraments may or should
be given to consuctudinarii, or recidivi, or such as are
utterly careless of their spiritual welfare. The answer
was: If they have given signs of repentance, Extreme
Unction may be administered.11 Broadly speaking, it may
be said that, unless positive refusal lasting up to the mo-
ment of unconsciousness can reasonably be assumed, this
Sacrament may be administered.
10 S. O., July 27, 189*, *d » (Coll. 11S. O., May 9, 1821 (CoU. P.
P. F.t a. 1808). F., n. 757).
jle
£ " ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 944
405
Can. 944
Quamvis hoc sacramentum per se non sit de neces-
sitate mcdii ad salutcm, nemini tamen licet illud negli-
gere; et orani studio et diligent ia curandura ut infirmi,
dum sui plene compotes sunt, illud recipiant.
N
■
Although this Sacrament is not absolutely necessary as
a means of salvation, yet no one may neglect it; and
care and diligence should be taken that the sick receive
it while fully conscious.
Although, according to the theologians," it would not
be a grievous sin not to receive Extreme Unction, every
pastor is under grievous obligation to administer this
Sacrament to those who ask for it.13 Regulars or relig-
ious who are missionaries are obliged by a decision of the
Holy Office to obey the same law.14 The Nestorians,
and Orientals in general, have been admonished not to
be neglectful in the administration of this Sacrament.15
Bishops should see to it that pastors perform their duty
in this regard.18
IX Cfr. Noldin, De Sacram., ed.
10, n. 461.
13 S. O.. March 23, 1656; S. C.
P. F., Sept. i*. 1645 (Coll., nn.
126, 114).
14 S. O., Not. 13, 1609 (Coll. P.
P., n. 189).
15 Benedict XIV, "Ex quo."
March 1, 1756. IS 44, 46; S. C. P.
F., July 31, 1902, n. 7 (Coll., a.
3149).
16 Benedict XIV. " Pirmwdis,"
Nov. 6, 1744, I 9.
oogle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER III
RITES AND CEREMONIES
OLIVE OIL BLESSED BY THE BISHOP
■
"-.
Can. 945
Oleum olivarum, in sacramento extremae unctionis
adhibendum, debet esse ad hoc benedictum ab Epi-
scopo, vel a presbytero qui facultatem illud benedicendi
a Sede Apostolica obtinuerit.
The olive oil to be used in the administration of Ex-
treme Unction must be blessed for that purpose by the
bishop or by a priest who has obtained the necessary
faculty from the Apostolic See.
Concerning the necessity of using olive oil blessed
by a bishop different opinions were held, but it is safe
to say that this canon embodies an ancient practice,
mentioned by Innocent I as universal in the Western
Church.1 In the Greek Church the priests themselves
bless the oil before administering this Sacrament.2
Can. 946
■
Oleum infinnorum parochus loco nitido et decenter
ornato in vase argenteo vel stamneo diligenter custo-
dial nee domi retineat nisi ad normam can. 735.
■
The " oil of the sick " must be preserved in a vessel of
silver or white metal (a composition of lead and silver),
llnnocent I, Ep., ad Decent. 2 Benedict XIV, " Etsi pastoralis,"
Eugub., 25, (Denzinger, n. 60). Max -'*■■ 1 ;'•+-. I IV, n. 1.
406
oogle
% ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
p
CANON 947 407
and in a neat and properly equipped place; — but it may
not be kept at home, except in the case permitted by can.
735 (*■»■)•
the anointings
Can. 947
§ 1. Unctiones verbis, ordine et modo in libris ritua-
libus praescripto, accurate peragantur; in casu autcm
necessitatis sufficit unica unctio in uno sensu seu rec-
tius in fronte cum praescripta forma breviore, salva
obligatione singulas unctiones supplendi, cessante
periculo.
§ 2. Unctio renum semper omittatur.
§ 3. Unctio pedum ex qualibct rationabili causa
omitti potest.
§ 4. Extra casum gravis necessitatis, unctiones ipsa
ministri manu nulloque adhibito instrumento Bant.
The anointments must be accurately performed, as
stated in the Roman Ritual, which prescribes the words,
the order and the manner of anointing. In case of ne-
cessity one anointment on the forehead with the short
formula is sufficient; but the obligation of supplying the
other anointments remains when the danger is over.
The anointment of the loins is always to be omitted.
The anointment of the feet may be omitted for any-
reasonable cause. Except in case of grave necessity,
the anointments must be made by direct touch, without
instruments. The Ritual exactly prescribes the manner
in which this Sacrament must be conferred. Its prescrip-
tions should be strictly followed. An anointing per-
formed simultaneously by several priests who would
divide the sacred function in order to gain time would
I Original from
' K H 'gie UNIVERSITY OF WISCONSIN
■
pi
408 ECCLESIASTICAL THINGS
be valid, but allowed only in case of grave necessity,1 for
which, however, the Code provides more effectively by
ordaining that, when there is grave danger, one anoint-
ment is sufficient. This must be made on the forehead.
with the formula: " Per istam sanctam unctionetn in-
dulgent tibi Dominus quidquid deliquisti. Amen."
A new and welcome regulation is the permission to
omit the anointment of the feet for any reasonable mo-
tive, which we must leave to pastoral prudence and
hygienics to determine.
Concerning the use of an " instrument/' e.g., a brush
or a piece of cotton (stylus, virgula) or a little stick or
twig, this may be allowed in contagious diseases, espe-
cially the bubonic plague,0 but outside such cases of ne-
cessity, it is strictly forbidden.'
BCfr. Anal. Eecl., 1900, Vol. 5 S. O.. July 11, 1754; S. C. P.
8, p. -438 f. F., June ji, 1788. iColt., n. 596).
4S. O., April as, 1906 {Coll. « S. Rit. C. May 9, 1857. »d II
P. F.. a. M33). {Dec. Auth., a. 3051).
jle
Original from
UNIVERSITY OF WISCONSIN
TITLE VI
T
HOLY ORDERS
f Can. 948
Ordo ex Christi institutione clericos a laicis in Eccle-
sia distinguit ad Hdclium regimen et cultus divini
■
ministerium.
What was said in Vol. II of this Commentary on the
hierarchic distinction between clergy and laity, and the
degrees of the hierarchic order, may suffice to illustrate
the present canon.1 It is the hieratic element, the power
of order established by Christ himself, which distinguishes
the clergy from the laity or ordinary faithful. It is the
clergy who govern the faithful and conduct the divine
worship. To the clergy is entrusted the government and
administration of the mystical and the real body of
Christ, whereas the laity cannot validly perform any act
of jurisdiction or order.2 This power is conferred by
the Sacrament called Orders. There are various de-
grees, but conjointly taken, they signify the Sacrament
by which a layman is marked with the clerical character,
which can never be effaced.
Can. 949
In canonibus qui scquuntur, nomine ordinum maio-
rum vel sacrorurn intelliguntur presbyteratus, diacon-
1V0I. II, p. 41 ff. Ord.; efr. Proftiaio Fidei iVsldensi-
1 Trid., k»s. 23, can. 3, de Sacr. bus propositi (Denztngcr, n. 370).
409
* I Inr*oItf> Original from
• lOOglL UNIVERSITY OF WISCONSIN
410 ECCLESIASTICAL THINGS
atus, subdiaconatus ; minorum vero acolythatus, exor-
cistatus, lcctoratus, ostiariatus.
In the following canons the term higher or sacred or-
ders signifies the priesthood, the diaconate, and the sub-
diaconate; the term minor orders signifies the offices of
acolythe, exorcist, lector and doorkeeper. Here we must
again refer to Vol. II.
Subdeaconship, properly speaking, is a major, but can-
not strictly be called sacred order because it is not a
Sacrament in the true sense of the word.3
•a
The episcopate is a Sacrament, but is not enumerated
among the higher or sacred orders for the reason that
ecclesiastical terminology 4 has drawn a line of distinc-
tion between the episcopate, which contains the fullness of
the priesthood, and the inferior ranks. Hence the order
of the episcopate is marked as an independent and supe-
rior dignity or office, a singular institution, for the reason,
no doubt, that the bishops are the spiritual fathers of the
clergy whom they ordain.
Can. 950
In iure verba : ordinare, oxdo, ordinatio, sacra ordi-
natio, comprehendunt, praeter consecrationem episco-
palem, ordines enumerator in can. 949 et ipsam primam
tonsuram, nisi aliud ex natura rei vel ex contextu ver-
borum eruatur.
Though the episcopate stands out prominently, it, too,
is conferred by the Sacrament of Holy Orders, and order
means a distinct degree of the hierarchic constitution, or
of ecclesiastical power in general. In law, therefore, the
l Cfr. Pohle-Preuss, The Sacra- 4 C 4, Dist. 60: " lacrot autem
menu, IV, p. 107 f.; c u, DUt. ordines dicimus diaconatum et pres-
ja. byleratum."
t I Original from
lOOglt. UNIVERSITY OF WISCONSIN
CANON 950 411
terms " ordinare, ordo, ordinatio, sacra ordinatio " com-
prise not only the orders mentioned in the preceding
canon, but also the episcopate and the first tonsure, un-
less the nature of the thing itself or the context imply a
different meaning.
The act by which one receives the episcopate is prop-
erly called consecration, but since this act requires
the use of the same matter and form which constitute
the substance of Holy Orders, it is evident that the gen-
eral terms : to ordain, ordination, etc., include the episcopal
order. The Code does not pretend to solve the contro-
versy concerning the sacramental character of the episco-
pate or that regarding the essence of the Sacrament —
whether it consists in the act of delivering the instru-
ments or in the laying on of the hands, or in both. As
to tonsure, we have elsewhere noted that it is not a
Sacrament but merely a preparation for Holy Orders.11
.
• Cfr. Vol. II, p. 43 t.; Ltyman, Thiol. Atoralu, L V, tr. o, c j, n. 3.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
N
■
'.•",
CHAPTER I
the minister of ordination
Can. 951
Sacrae ordinationis minister ordinarius est Episco-
pus consecratus; extraordinarily qui, licet charactere
episcopali careat, a iure vcl a Sede Apostolica per pecu-
liar* indultum potestatem acceperit aliquos ordines
conferendi.
The ordinary minister of sacred ordination is every
(validly) consecrated bishop, even though he be a schis-
matic or heretic.
This was defined in the Decree for the Armenians and
again by the Council of Trent.1 However, it must be
added that although every validly consecrated bishop
may ordain validly, yet he must make use of the proper
form in the act of ordination, and have the intention of
conferring the power attached to the Sacrament; or
rather, let us say, the ordinans must not positively exclude
the intention of the Church. From this point of view the
Anglican Orders were declared invalid by Leo XIII, in
his " Apostolicae curae" of Sept. 13, 1896.3
In saying that the bishop is the ordinary minister of
the Sacrament of Holy Orders, the Code implicitly admits
an extraordinary minister, i.e., one who, though lacking
the episcopal character, has obtained the power of ordain-
1 Dec. pro Arm., Dcnzinfer, n. * Sec Cath, Encycl., I, 491 ff.
596; Trid., uu. 23. c. 4; can. 7.
dt Sac. Ord.
412
Gi Original from
UOglt UNIVERSITY OF WISCONSIN
CANON 951 413
ing either by law, or by a special indult of the Apostolic
See.
By law the following are extraordinary ministers of
sacred ordination :
(a) The Cardinals, who have the privilege of con-
ferring the tonsure and minor orders, provided the
promovendus can show a dimissorial letter from his Ordi-
nary. It is, of course, supposed that Cardinals are en-
dowed with the priestly character; and if so, it matters
nothing whether they are cardinal bishops, priests or
deacons.8
•a
(b) Vicars Apostolic and Prefects Apostolic may con-
fer the tonsure and minor orders within their own ter-
ritory and during their term of office, as per can. 957.
(c) Abbates regiminis may confer the tonsure and
minor orders according to can. 964.
By a special indidt of the Apostolic See a simple priest
may obtain the faculty of bestowing tonsure and minor
orders, though not, according to present practice, the sub-
deaconship or the diaconate.4 Two things, however, are
essential: (1) that the ordinans must be a priest, and
(2) that a privilege or indult be obtained. If one who had
received minor orders from a simple priest without fa-
culties, were afterwards raised to sacred orders by a
bishop, he would have to receive tonsure and minor
orders again, but not the higher orders properly con-
ferred by the bishop.5
1 Cf r. c. 11, x, I, 14; can. 232, | e., p. 124; Anal. EccL, 1901, p. 313
1; can. 239, I 1, n. ja. ff.
4 Concerning the Constitution of 8 Cfr. c. 3, Disk 68; c. u, x, I,
Innocent VIII, «ee Pohle-PreuM, /. 14; S. C. Ec. it KK . Dec. zz, 1578
(Bixzarri, Collectanta, p. 218 f).
* ',-uv-iL* Original from
■OOgK. UNIVERSITY OF WISCONSIN
414 ECCLESIASTICAL THINGS
a
promoted bv the pope
Can. 952
Ncmini licet ordinatum a Romano Pontifice ad alti-
orem ordinem promovcre sine Scdis Apostolicae facili-
tate.
This is a celebrated text. Its original source is a
rescript of Innocent III to the bishop of Modena. The
facts were these : a cleric who had been ordained sub-
deacon by *the Pope, was to be promoted to the diaconate
by the bishop of Bologna, who had received an indult
to that effect from Pope Innocent III.
Our canon says: No one ordained by the Roman
Pontiff may lawfully be promoted to a higher order with-
out an Apostolic faculty. This rule, however, holds only
if the Pope in person, or another prelate by special com-
mand of the Pontiff, ordains a clergyman. Consequently,
one ordained in Rome by the Cardinal Vicar does not
enjoy this distinction.8 On the other hand, it does not
matter what order the Pope conferred, for the text says:
" Ordinatum a Romano Pontifice/' and this term in-
cludes tonsure, according to can. 950. The episcopate
also is comprised therein, but this is mentioned especially
in can. 953.
mandatum de consecrando
Can. 953
Consecratio episcopalis reservatur Romano Pontifici
ita ut nulli Episcopo liceat quemquam consecrare in
Episcopum, nisi prius constet de pontificio mandate
fl Benedict XIV, " In postremo," Oct. 20, 1756, I j f.
;Ic
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 953 415
Episcopal consecration is reserved to the Roman Pon-
tiff, and no bishop is allowed to consecrate anyone un-
less he is certain of the papal mandate.
Formerly, according to the Decretals,7 the metropoli-
tan had the right to consecrate suffragan bishops.8 This
right was, however, purely historic and could not preju-
dice the universal right of the Sovereign Pontiff, who at
all times could, without usurpation, restrict or withdraw
the faculty of metropolitans with regard to their suf-
fragans. The change was brought about gradually in the
form of a mandate. The Pontificate Romanuyn 9 pre-
scribes that the consecrator must obtain a papal commis-
sion in the form of an Apostolic letter, if he resides
outside the Curia, or an oral commission by the Roman
Pontiff if he is a Cardinal, — we suppose de curia. Bene-
dict XIV modified a former Constitution of Benedict
XIII so as to permit the consecrandus to choose as his
consecrator any bishop in union with the Holy See if
the consecration was to take place outside the City of
Rome. In Rome the consecrandus had to choose a cardi-
nal endowed with the episcopal character, or one of the
four titular patriarchs. As a reminder of the ancient dis-
cipline Benedict XIV ordered that if the metropolitan
should chance to be in Rome at the time one of his
suffragans was consecrated, the consecration should be
performed by him.10
The canon then states : " nisi prius constet de pontificio
mandato." This mandate, as noted above, is given orally
when the consecration is performed in Rome, but if it
takes place outside the City, an Apostolic letter is re-
quired, which must be in the hands of the consecrator
7 Cc. 11, 32, x. I, '■ , ■-!":. c. 3, ■' D '.' constcratione tlecti in rfis-
Dist. 65. copum.
B Benedict XIV, /. c, S i$. lQ"ln postremo"; 9 16.
►ogle
£ * -» v J„ Original from
UNIVERSITY OF WISCONSIN
416
ECCLESIASTICAL THINGS
■
before he is allowed to perform the function. Without
such a mandate he acts unlawfully, though validly. It
is not sufficient that the letters be expedited in Rome
and unofficial notice be sent of the fact.11 If, however,
certain and authentic notice has been received that the
letters have been expedited in Rome, the law is complied
with." But an offkial or authentic notice can come only
from the Roman Court. Thus any message, sent by the
Secretariate of State by telephone, telegraph, or (we pre-
sume) Wireless, to the effect that the Apostolic letters
were expedited, would create a certainty.18 The man-
datum consecrationis may be contained in the letters of
promotion in the form of the clause : " ut electus a quo-
cunque maluerit catholico antistite, gratiam et comntu-
nionem Apostolicae Sedis fwbente consecrationis man us
accipere valeat" When this clause does not occur in
the letter of promotion, or when the letter contains a
clause to the contrary, a special papal mandate is re-
quired for the consecration.14
This law is technically perfect, as it has a penal sanc-
tion attached to it. Those who bestow or receive con-
secration without an Apostolic mandate incur suspension
ipso facto, which lasts until the Apostolic See expressly
dispenses therefrom.18
11 Alexander VII, "Alias." Feb.
37, 1660.
12 S. C P. F., Dec 30, 1781
{Coll, n. 550.
13 S. O., Aug. 24, 1B92; Sec.
Status. Dee. 10. 1801 (Coll. P. F.,
tin. iSio, 1775)-
14 Leo XIII, " Trans Octanum,"
April i8, 1897 (Cott. P. P., n.
1065, ad 1).
is Can. 2370,
oogle
Original from
UNIVERSITY OF WISCONSIN
■
9
CANON 954 417
consecrators
Can. 954
Episcopus consecrator debet alios duos Episcopos
adhibere, qui sibi in consecratione assistant, nisi hac
super re a Sede Apostolica dispensatum fuerit.
Pseudo-Isidore has set up a fanciful reason why a
bishop should not be consecrated by less than three
bishops : — because, he says, James was consecrated
bishop of Jerusalem by three Apostles, Peter, James the
Elder and John.10 The real reason for this ancient cus-
tom must be sought in the fact that the metropolitans were
wont to consecrate their suffragans and the patriarchs
the metropolitans, in the presence of the bishops of the
same province. And as it was often impossible for all the
bishops of a province to meet for the occasion, it grew
to be the custom that at least three took part in every
consecration.17 Our canon prescribes that the consecra-
tor shall be assisted by two other bishops, unless an Apos-
tolic dispensation has been granted from this rule. This
law does not affect the validity of a consecration," but
constitutes a grievous obligation to employ two co-conse-
crating bishops. Sometimes <he Roman Court grants
en
a dispensation permitting the employment of two dig-
nities of the cathedral chapter, or simply two dignities,
as assistants.19 Thus Leo XIII permitted the bishops of
Latin America to employ two dignitaries whenever two
bishops were not readily available.30 This indult is still
■
10 C. 2, Dist. 66. Aitih.. d. 820) : convalidari fosse;
IT C. 5, Di«t. 51; c. if Diflt. 64; but Benedict XIV, De Syn. Dioic,
c 5, Dist. 65: Phillips, K.-R., Vol. XIII, 13, 7, plainly states the valid-
I, 1845. P- 36a f. ity.
18 S. C. P. F., May 18, 1695 i» S. Rit. G, July 16, 1605 (Dec.
{Coll., n. 239); lomcwhat surprising Aulh., n, tSG}.
S. Rit. C, Dec 17. '642 {Dec. 20" Trans Occanum." ad 1.
■-:
t I 4 Original from -
dby^-OO^IL UNIVERSITY OF WISCONSIN
:
or.«mo-o»;.-.., it
E
■
9
418 ECCLESIASTICAL THINGS
in force for that country, as the Code clearly says : " nisi
A p. Sedis dispcnsaverit." If the two assistants at a con-
secration are not bishops, they must touch the head of
the consecrandus with both hands, and in all other re-
spects, also, carefully observe the prescriptions of the
Pontificate Romanum.21
THE EPISCOPUS PROPRIUS
Can. 955
§ 1. Unusquisque a proprio Episcopo ordinetur aut
cum legitimis eiusdem litteris dimissoriis.
§ 2. Episcopus proprius, iusta causa non impeditus,
per ae ipse suos subditos ordinet ; aed subditum orien-
tals ritus, sine apostolico indulto, licite ordinare non
potest.
It is a time-honored principle " in the Church that no
bishop or metropolitan shall trench upon the rights or
powers of another bishop or ordinary, especially in re-
gard to the exercise of pontifical rights, such as ordina-
tion." Since one becomes incorporated in the Church
by Baptism, and Baptism in the first four centuries was
conferred on adults by the bishop himself, it was but nat-
ural that the spiritual father had the first claim on per-
sons thus regenerated. Baptism constituted the first
a
title for the competency of the bishop, and the synods
of Sardica (343) and Antioch (332) strictly forbade
bishops to coax laymen or subjects of one diocese or
province into another and to ordain them to the clericate,
except after having obtained the consent of their proper
bishop."
21 S. Rit. C, June 9, igjj (Dee. snTrid.. vest. 6, c. 5 de ref.
Auth., a. 3014). 2« Cfr. Dist. 71; Thomaswnua,
aa C. 1, Dirt. 71 (Cone. SorJic. Vctm el Nov* Discifl. Eccl., P. II,
»•)■ 1. I, C. I.
Go >gle
Original from
UNIVERSITY OF WISCONSIN
CANON 955 419
o
When infant Baptism came into vogue in the 10th cen-
tury, it became necessary to examine the origin or birth of
those who wished to enter the clerical ranks. Those who
wished to be ordained in a strange country had to ex-
hibit letters from the bishop of their own country. This
practice was formally sanctioned by a decretal of Clement
IV, who acknowledged as a further reason for compe-
tency benefice, by reason of which that Ordinary was
competent who had bestowed a benefice upon the ordi-
nandus.2* The canonists and legists drew from the
Roman law the title of domicile and introduced it into
church discipline. Thus the domicile of the ordinand was
legalized.28 Three grounds of competency are therefore
discernible in the Decretals : origin, domicile, and benefice.
To these the Council of Trent added familiaritas." The
Code admits only origin and domicile.
It is almost superfluous to add that, as Clement IV
had already decided that the Pope may grant permis-
sion to be ordained by any bishop, so he himself may or-
dain anyone anywhere.
Can. 955 in its § 1, lays down the general rule
that everyone should be ordained by his own bishop or
at least with dimissorial letters from the latter. These
letters are nothing else but the (written) consent of the
bishop permitting one of his subjects to be ordained by
another bishop. The text plainly refers to the old prac-
tice and to the Council of Trent," which complained
that bishops in partibus infidelium had, like mercenaries,
invaded the dioceses of others and ordained clerics indis-
criminately without letters of recommendation. The re-
sult was that unfit and unworthy persons, nay even
such as had been formally rejected by their own bishops,
P
"\
« C 1, 6", I, 9. *t Sesa. 23, c. 9, it ref.
»8 C 3. 6*i I. 9- 2I Sess. 14, c a, de rtf.
§le
k ,] , Original from
UNIVERSITY OF WISCONSIN
420 ECCLESIASTICAL THINGS
were ordained. Therefore the Council required that
no titular bishops should dare to ordain another bishop's
subjects without his consent.
This prohibition was extended to all bishops in regard
to those not subject to them.w
Dimissorial letters are required also for conferring the
tonsure?0 Vicars Apostolic are not exempt from this
law.81 One decision of the S. Congregation declares
that patriarchs should not impede the exercise of the juris-
diction of their suffragans with regard to ordination.53
From this it may be easily deduced that metropolitans are
not entitled to interfere in this matter. Concerning the
form of these letters, see can. 960.
§ 2 rules that the episcopus proprius, unless prevented
by a just reason, should himself ordain his subjects, and
that no bishop of the Latin rite may ordain a subject of an
oriental Rite lawfully without an Apostolic indult.
The Council of Trent and a Constitution of Innocent
XIII mention only one reason (sickness) which would
justify the ordinarius proprius in not ordaining his own
subjects.38 Our Code, however, is more liberal, as it
admits any iusta causa. Hence any lawful impediment,
but not mere convenience or indolence, would justify an
ordinary in granting dimissorial letters.
The second clause forbids Latin bishops to ordain any
one belonging to an Oriental rite without an Apostolic
indult.8* The text mentions only Oriental rites. Are
2»Scm. 33, cc. 3, 8, de ref. 82 S. C P. F., May 14, 1838
BOG 4, 6\ I, 9; Innocent XII, (Coll.. n. 866).
" Speculator cs.1' Nov. 4. 1692, 5 3; as 7W.. Sess. 33, c. 3, de ref.;
S. C. EE. et RR., April 8, 1859 Innocent XIII, " Apostoliei minis-
(Rizzarri, /. c. p. 661 ff). terii," Sept. 33. 1734. I 14.
Si S, C. P. F., April s. 1674; Jan. 34 Benedict XIV. " Etsi postor:
«7. "793 (Coll., nn. jo)-, 615). lit," May a6. 174a. I VII, n. I,
XVI, XXII; I IX, nn. XI. XIII.
jle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 956 421
Oriental bishops 8B allowed to ordain subjects of the Latin
Rite? We hardly believe that this is the intention of
the legislator, because he evidently wishes to prevent
confusion and a mixing of rites.38 Why, then, does the
Code not include the Oriental bishops in this prohibi-
tion ? Because it does not legislate for the Oriental, but
for the Latin Church only.
What about the Rttthcnians of the U. S. and Canada?
The documents 37 relating to this subject contain no spe-
cial regulation with regard to ordination. Hence the
common law, as formerly and now understood, must be
followed.
It is certain that Ruthenians who are neither baptized
in, nor live according to their particular rite may not be
considered as subject to the same, but are subject to the
diocesan bishop of the Latin Rite. No layman of the
Latin Rite, born of Latin parents, may transfer himself
to, or be ordained in, the Oriental Rite. If a Ruthcnian,
however, although not baptized in the Ruthenian Rite,
should wish to enter a Ruthenian seminary, we believe he
may be admitted without an Apostolic dispensation. He
would become a subject of the Ruthenian bishop, and no
bishop of the Latin Rite could ordain him without an
Apostolic indult.
Can. 956
Episcopus proprius, quod attinet ad ordinationem
saecularium, est tantum Episcopus dioecesis in qua
promovendus habeat domicilium una cum origine aut
bb The Maronite and the Melchite Cone. Montis Libani (Coll. Lac., II,
Patriarchs of Antioch may grant di- 240, 256).
misso rials lo their lubjecta to be or- 80 Benedict XIV, " Etsi ptntoro-
dained by a Latin bishop or a lit," fi VII, n. XX.
bislup of another Oriental Rite; 3T Sec Am, Eccl, Act-., VoL 31*
pp. 580 ff., 7x0 ff.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
-
p
422 ECCLESIASTICAL THINGS
simplex domicilium sine origine ; sed in hoc altero casu
promovendus debet animuzn in dioecesi perpetuo ma-
nendi iureiurando finnare, nisi agatur de promovendo
ad ordines clerico qui dioecesi per primam tonsuram
iam incardinatus est, vel de promovendo alumno, qui
servitio alius dioecesis destinatur ad normam can. 969,
§ 2, vel de promovendo religioso professo.
The bishop competent to ordain secular priests is the
one in whose diocese the ordinand (1) was born and
has his domicile, or (2) has only a domicile, though not
born there. In the latter case he must make oath as
to his intention of remaining permanently in the diocese.
Exceptions will be explained further down.
This canon embodies new legislation. The new ele-
ments are : neither pure origin nor mere domicile are titles
per se sufficient, and benefice and familiar service are no
longer considered.
1. Origin and domicile.
(a) Origin here signifies birthplace, or the diocese in
which one was born** The mere fact that one was born
in a certain place, however, for instance, at a summer
resort, hardly suffices to call that place his place of origin.
One's birthplace, properly, is the natural and common
domicile of one's parents, or, the place of their habitual
residence. It is no longer necessary to distinguish be-
tween accidental and natural nativity ,aB if the domicile
or quasi-domicile or permanent residence of the parents
is certain.40 This rule is doubtless better adapted to
present conditions, as the population, especially of cities,
is in a constant flux.
As to illegitimate or posthumous children, also of con-
-
88 C. 3, 6°, I, 9: " oriundut." 40 See can. 90, | 1.
80 Cfr. Many, D* Saeta Ordins-
Hone, Paris, 1905, p. 84 ff.
JbyC jle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 956 423
St
verts, their locus originis follows the domicile or quasi-
domicile of the mother; that of vagi and expositi is the
place where they were actually born.*1
(b) Domicile must here be understood of the true, not
the quasi-damicile of the ordinand, for the clause con-
cerning the oath excludes any other residence. But a
diocesan domicile would certainly be sufficient in this case,
because the Decretals" as well as the spirit of the law
refer that domicile to the local or diocesan bishop. The
same rule must be applied to the domicile or quasi-
domicile of the parents of the ordinand.
The question may arise, whether one may have two
domiciles in different dioceses, for instance, a summer
and a winter domicile. The answer is, Yes, as the nature
of domicile permits it In such cases the bishops of both
dioceses are competent to ordain and the choice is left
to the ordinand.48
2. Domicile alone, without regard to origin, establishes
the title of competency if the ordinand makes oath that
he intends to remain permanently in the diocese whose
bishop is to ordain him. This ruling goes back to Inno-
cent XII.** The oath here prescribed may be made into
the hands of the bishop himself, or of his delegate, or of
the rector of a college or some other priest.
3. This oath is not required in three cases: (a) when
the cleric to be ordained has already been incardinated
in the diocese by the first tonsure; (b) when he is to be
ordained ad titulum servitii ecclesiae; (c) when he is a
religious with simple perpetual vows. The reason for a
lies in the fact that incardination must be perpetual
and absolute, and given with the required testimonials.4'
41 Ibid. **" Speculator**," x. | 5.
«Cc. 1, 3, 6" I, 9. «S. C. C, July 30, 1898 (ColL
*a Many I. c, p. 97 f. P. F,, n. jqii).
jle
v ,|,, Original fro m
UNIVERSITY OF WISCONSIN
■
424 ECCLESIASTICAL THINGS
The reason for b must be sought in the oath which is
required for being ordained on that title. And c is ex-
plained in can. 585, which says that by taking perpetual
vows one loses membership in his own diocese.
The episcopus proprius of such as have no domicile is
the Ordinary in whose diocese the ordination takes place,
provided the ordinand first acquires the domicile by tak-
ing oath according to can. 956. (Irish EccL Record,
1919, XIV, 330). These are the only reasons by which
the competency of the bishop is now determined, neither
beneficium nor familiaritas being admitted.
vicars and prefects apostolic, prelates nullius
Can. 957
§ 1. Vicarius ac Praefectus Apostolicus, Abbas vel
Praelatus nullius, si charactere episcopali polleant,
Episcopo dioecesano aequiparantur quod pertinet ad
ordinationem.
§ 2. Si episcopali charactere careant, possunt nihilo-
minus in proprio territorio et durante tantum munere,
conferre primam tonsuram et ordines minores turn pro-
priis subditis saecularibus ad normam can. 956, turn
.aliis qui litteras dimissorias iure requisitas exhibcant ;
ordinatio extra hos fines ab eisdem peracta irrita est.
§ 1. Apostolic Vicars and Prefects as well as abbots
and prelates nullius, if endowed with the episcopal char-
acter, are equal to diocesan bishops in matters of ordi-
nation.
§2. If they do not possess the episcopal character,
they are nevertheless entitled to confer, within the boun-
daries of their district and whilst their office lasts, tonsure
and minor orders on their own secular subjects, according
.'le
£ * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 957 425
to can. 956, and also on others who are provided with
dimissorial letters as required by law. If they over-
step the limits here drawn, any ordination performed by
them is invalid.
This is a decidedly new and opportune law, which
changes the discipline established by the Council of
Trent.40 Formerly the episcopus vicinior could confer
orders on, or grant dismissorial letters to the secular sub-
jects of a prelate nullius. The Vicar Apostolic could
indeed confer orders on such as had the dimissorial let-
ters from their ordinaries,47 but this was no right, but
merely a privilege granted for missionary countries only.
Now the prelates mentioned, if they are consecrated
bishops, may confer orders on all their subjects, secular
as well as religious, though on the latter, if they are
exempt, only upon receiving dimissorial letters from their
superior. In ordaining seculars, however, these prelates
are bound to observe can. 956, which defines competency.
If these prelates are not consecrated bishops, they may
confer tonsure and minor orders, (a) upon all their
secular subjects, (b) upon others, religious as well as
secular, who exhibit dimissorial letters either from the
religious superiors or from the ordinaries of other
dioceses or districts; but (c) only on condition that
they adhere strictly to the limitations stated in this canon
under penalty of nullity.
What are these limitations? There is no doubt as
to the territory and duration of -the term of office. Vi-
cars Apostolic, Prefects Apostolic, and prelates nullius,
, who are not consecrated bishops, can validly confer
tonsure and minor orders only within their own district
and as long as their office lasts. But a doubt may arise
*" Trid., Sess. 33, c. 10; Seas. 34, *T Can. 964, n. a.
c. 9 dt rrf.
G Original from
UOglt UNIVERSITY QFWI5C0NSIN
426 ECCLESIASTICAL THINGS
concerning the litterae dimissorialcs required by law: —
arc they an essential condition for valid ordination of the
" others " (alii) ? If these letters affect the validity of
ordination, the aforesaid prelates cannot validly ordain
a subject of another ordinary before they have received
these letters. The sources 4B which Card. Gasparri quotes
for can. 957, § 2 do not fully answer the question, either
negatively or affirmatively, because they do not expressly
mention the validity or invalidity of the ordination per-
formed by prelates before having received the litterae
diviissoriales. Still we believe that the mind of the
•a
legislator is to invalidate an ordination thus performed.
The same clause recurs in can. 964, n. 2, where the
validity of the tonsure and minor orders conferred by a
governing abbot is made dependent on three conditions,
although the contrary opinion prevailed at the Roman
Court at the time of Benedict XIV. Besides, the
dumtaxat of the S. C. P. F. is a rather strong indication
that invalidity was intended.*8 Of course, the legislator
who confers power can make the exercise thereof de-
pendent on the fulfillment of certain conditions, especially
since tonsure and minor orders are not a Sacrament in
the proper sense.
Can. 958
§ 1. Litteras dimissorias pro saecularibus dare pos-
sunt, quandiu iurisdictionem in territorio retinent;
i°. Episcopus proprius, postquam possessionem
suae dioecesis legitime cepcrit ad normam can. 334, § 3,
licet nondum consecratus ;
a°. Vicarius Generalis, ex speciali tamen Episcopi
mandato ;
«C. 3, 6°, V, 7: "**c licitum 49 S. C. P. F., April 5. i«74. «l
tut abbatibus." 1 {Coll., n. 207).
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 958 427
3°. De Capituli consensu Vicarius Capitularis post
annum a sede vacante ; intra annum vero solis arctatis
ratione benehcii recepti vel rccipicndi, aut ratione certi
alicuius officii, cui propter necessitatem dioecesis sine
dilatione sit providendum ;
4.0 Vicarius ac Praefectus Apostolicus, Abbas vel
Praelatus nullius, licet episcopali charactere careant,
ctiam ad ordines maiores.
§ a. Vicarius Capitularis litteras dimissorias ne con-
cedat iis qui ab Episcopo reiecti f uerunt.
§ 1. The following may, as long as they retain jurisdic-
tion in their respective territory, grant litterae dimis-
soriae to their secular subjects:
i.° The Episcopus proprius, even though not yet con-
secrated, after having taken lawful possession of his
diocese, i.e., as soon as he himself or his proxy has
exhibited the Apostolic letters of appointment to the
diocesan chapter, or the diocesan consultors assembled in
corporc, in the presence of the secretary of the chapter or
the diocesan chancellor.60
2.0 The Vicar General, but only by special command
of or commission from the bishop. This command or
commission may be given orally or in writing, either for
one case or for several cases, during the bishop's absence,
for instance, or sickness.
3.0 The Vicar Capitular (our administrator) with
the consent (not merely advice) of the Chapter (or the
diocesan consultors) after the vacancy of the episcopal
see has lasted one year. Within the first year of vacancy
the Vicar Capitular may grant dimissorial letters only to
arctati,61 i.e., such as have already received, or will re-
<
BO Can. 334, i 3. The metropol- though he may not ordain to sacred
itan may give these letters before orders before having received ft,
hiving received the pallium, ai- 51 Cc. 1-4, 6", I, 9; Trid., Seal.
7, c. 10, dc rtf.
oogle
^1^ Original from
UNIVERSITY OF WISCONSIN
428 ECCLESIASTICAL THINGS
ceive, within that year an ecclesiastical benefice (for in-
stance, a canonicate) which requires ordination. Arctati
are also called those who have received or are about to
receive an office which, on account of the needs of the
diocese, must be filled immediately. This may occur
even now, especially after the late world war, in coun-
tries where there is a great want of priests or chaplains.5*
If the government — provided this right has been granted
to it by the Holy See — has appointed a chaplain or
nominated a pastor who is not yet a priest, the Vicar Capi-
tular may give him the dimissoriae. The same is true if
the deceased bishop has appointed one to an office requir-
ing the priesthood.
4.0 Vicars Apostolic, Prefects Apostolic, and Ab-
bots or prelates nullius, even though they are not conse-
crated bishops, may now also grant dimissorial let-
ters for sacred orders. This is but the logical conse-
quence of can. 957. Formerly BS prelates nullius could
not grant dimissorial letters even for tonsure and minor
orders, this right being reserved to the episcopus vicinior.
§2. The Vicar Capitular shall not grant dimissorial
letters to such as were rejected by the deceased bishop.
This enactment is similar to that of can. 44 concerning
rescripts. The object is to protect the authority of the
bishop and the unity of government, as well as to keep
undesirable candidates out of the sanctuary.
Can. 959
Qui potest litteras dimissorias ad ordines recipiendos
dare, potest quoque eosdem ordines conferre per se
ipse, si necessariam ordinis potestatem habeat.
62 France, for instance, before the 63 Trid., Ses». 24, c. 9, dt rtf.
war, was short about 3,000 priests.
* I Inr.altf> Original from
,00cVC UNIVERSITY OF WISCONSIN
CANON 960 429
Whoever is entitled to grant dimissorial letters for
receiving orders may confer the same orders himself,
provided he possesses the necessary power of order. No-
tice the subordination of the right of conferring orders
to that of issuing dimissorial letters. We are allowed to
invert the order: whoever may confer orders, may also
grant dimissoriae. The granting of dimissoriae supposes
the power of jurisdiction, but the conferring of orders
supposes the power of orders for valid administration and
jurisdiction for licit conferring, nay even for valid ordina-
tion, as far as inferior prelates are concerned. Hence
it is that inferior prelates who lack the episcopal char-
acter are strictly limited to their territory and tenure of
office, and must obtain ditnissoriae if they wish to confer
tonsure and minor orders on any subject not their own.
Can. 960
§ 1. Litterae dimissoriae ne concedantur, nisi habitis
antea omnibus testimoniis, quae iure exiguntur ad nor-
mam can. 993-1000.
§ 2. Si post datas ab Ordinario litteras dimissorias
nova testimonia necessaria sint ad normam can. 994,
§ 3, Episcopus alienus ne ordinet, antequam eadem
receperit.
§ 3. Quod si promovendus tempus sufficiens ad con-
trahendum impedimentum ad normam mem. can. 994
transegerit in ipsa dioecesi Episcopi ordinantis, hie
testimonia directe colligat.
§ 1. Dimissorial letters shall not be granted before all
the testimonial letters required by law have been received,
according to can. 993-1000. Note that, although the text
mentions dimissorial letters, yet since the term signifies
nothing else but permission given by a bishop to one of
I Original from
,r\jOOglL UNIVERSITY OF WISCONSIN
430 ECCLESIASTICAL THINGS
a
his subjects to have himself ordained by another bishop, it
is evident that such consent may be given orally. Thus,
for instance, if the M other " bishop should be present in
the cathedral city, he may be asked by the episcopus
proprius or the Vicar Capitular to confer orders. How-
ever, in order to avert fraud and procure greater cer-
tainty it is always safer to give the ditnissoriae in writ-
ing."
§2. If new testimonials are necessary after the
dimissorial letters have been issued by the Ordinary, the
other bishop shall not ordain the candidate before he has
received them.
§ 3. If the candidate has lived in the diocese of the
ordaining bishop long enough to contract a canonical im-
pediment, the ordaining bishop shall himself gather the
necessary informations. New testimonial letters are re-
quired if a candidate has lived in the same territory for
six or three months after the first testimonials were issued
and ordination has not yet taken place ; for six or three
months suffice to contract a canonical impediment. Ac-
cording to § 3, this residence may be taken up in the
diocese whose bishop is to ordain the candidate provided
with dimissorials from his own bishop. For instance, a
candidate for ordination belonging to the diocese of St.
Joseph, Missouri, has been a soldier in Camp Dodge,
Iowa, for four months. The bishop of Des Moines, in
whose diocese Camp Dodge is located, must gather the
necessary information about his fitness, directe, i.e., per-
sonally and from reliable sources. The fundamental sig-
nification of directe is reliability. Some elucidation of
this point is afforded by the decree " Rcdeimtibus," Oct.
25, 1918, concerning clerics who have returned from
04 Trid., Sets. 14, c. 2, de ref.: "espresso consensu out litteris Ji-
mitsorxis"; cfr. Many, /. r., p. ifij.
Q
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 961-962 431
military service." Chapt. II of this decree reads: The
Ordinaries of the places where clerics and seminarians
have done service for a considerable time, i.e., at least
three months, are called upon most urgently to give all the
necessary information to the ordinaries of said clerics
and seminarians, but the latter ordinaries should supply
this information by others gained from other sources
and persons, and finally by a personal examination of
the candidates. These, when duly asked by their bishops
as to their conduct, are obliged to answer truthfully.
Directe, however, in our canon, does not exclude the as-
sumption that the Ordinary who wishes to ordain a can-
didate provided with dimissorial letters may conduct the
inquiry through intermediary persons of ecclesiastical
rank, for instance, the Vicar-General, or deans, or the
diocesan chancellor. But it certainly requires that the
bishop should examine the information carefully and,
if necessary, summon the candidate before him for per-
sonal examination.
recipients of dimissorial letters
Can. 961
Litterae dimissoriae mitti possum ab Episcopo pro-
prio, etiam Cardinali Episcopo suburbicario, ad quero-
libet Episcopum, communionem cum Sede Apostolica
habentem, excepto tantum, citra apostolicum indultum,
Episcopo ritus diversi a ritu promovendi.
Can. 962
Quilibet Episcopus, acceptis legitimis litteris dimis-
soriis, alienum subditurn licite ordinat, dummodo ipse
56 A. Ap. S., Vol. X, 482 f.
ioi >gle
f^ ^ s ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
432 ECCLESIASTICAL THINGS
de germana litterarum fide dubitare nullatenus possit,
salvo pracscripto can. 994, § 3.
Can. 963
Litterac dimissoriae possunt ab ipso concedente vel
ab eius successore limitari aut revocari, sed semel con-
cessae non exstinguuntur resoluto hire dantis.
The first of these three canons repeats the old rule
that any bishop in communion with the Holy See may
accept dimissorial letters from the episcopus proprius
or a suburbicarian cardinal bishop, but not from a
bishop of a different rite. It is generally understood
that the litterae dimissoriales are granted in favor of the
ordinand, not of the ordaining bishop.5* The privilege is
now extended to the six suburbicarian cardinal bishops,
who formerly could grant dimissorial letters only to the
Cardinal Vicar of Rome." The exception is made mani-
festly in order to avoid confusion of rites; but litterae
dimissoriae may be sent to a bishop of a different rite if
an Apostolic indult has been obtained for the purpose.68
Can. 962 permits every bishop (in communion with the
Holy See), upon having received the lawful dimissorials,
to ordain a candidate not subject to his jurisdiction, pro-
vided he has no reason to doubt the genuineness of the
a
letters, and provided also he observe the ruling of can.
994i § 3. concerning additional testimonials. Authenticity
is beyond doubt if the signature and seal of the issuing
bishop are attached to the documents, though forgery is
never absolutely excluded.
Can. 963 rules that the dimissorial letters may be
Be Many, I. c, p. i6j. 08 13 en edict XIV, " Eln potior*-
67 Alexander VII, " Afiostolica lis." granted an indult to the
sotlicitudo," Aug. 7, :66a, 9 2. Calabrian bishops.
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 963 433
a
limited or revoked either by the grantor himself or by
his successor, but do not expire, even if the grantor
should lose his power.
A limitation may be made concerning the bishop, who
may be personally designated in the letter, or concerning
the time, which may be restricted to three or four months.
There may also be limitation regarding examination (cfr.
can. 997). Thus the letters may be worded: " If he is
found fit after examination." If this is a real condition,
clearly expressed as such in the letter, the dimissorial
would become null if the candidate failed to pass the
examination.
Revocation must be duly intimated either to the candi-
date to whom the letters were given, or to the bishop to
whom they were addressed.
The last clause of canon 963 enacts that the dimissorials
remain in force, even if the grantor loses the right of
issuing them after they are issued. The reason is that
dimissorial letters contain a favor, and every favor is
valid a die datae** Thus if a sick bishop had signed
the litteroe dimissoriae, and the candidate could not be
ordained until after the bishop's death, the letters would
be valid. Thus also, if the Vicar Capitular, according to
can. 958, § 1, n. 3, had issued litterae dimissoriae, and the
new bishop would take possession of the diocese in the
meanwhile, the letters of the Vicar Capitular would re-
main effective. Lastly, not even a penal privation of
office or a censure can render invalid dimissorial letters
previously granted.
p
|M
6»S. C. EE. et Rfi., Nov. is, 1600. (Bixrarri, /. r., p. 132; Reg. iurii
> 6 in. 6°).
oogle
• Original from
UNIVERSITY OF WISCONSIN
'■-.
434 ECCLESIASTICAL THINGS
RIGHTS OF RELIGIOUS SUPERIORS
Can. 964
Quod attinet ad ordinationem religiosorum :
i°. Abbas regularis de regimine, etsi sine territorio
nullius, potest conferre primam tonsuram et ordines
minores, dummodo promovendus sit ipsi subditus vi
prof essionis saltern simplicis, ipse veto sit presbyter et
benedictionem abbatialem legitime acceperit. Extra
hos fines, ordinatio, ab codem collata, revocato quolibet
contrario privilegio, est irrita, nisi ordinans charactcre
episcopali polleat;
20. Religiosi exempti a nullo Episcopo ordinari licite
possunt sine litteris dimissoriis proprii Superioris
maioris ;
3°. Superiores professis votorum simplicium, de
quibus in can. 574, litteras dimissorias concedere pos-
sunt dumtaxat ad primam tonsuram et ordines mino-
res;
40. Ordinatio ccterorum omnium alumnorum cuius-
vxs religionis regitur iure saecularium, revocato quoli-
bet indulto Superioribus concesso dandi professis a
votis temporariis litteras dimissorias ad ordines
maiores.
As to the ordination of religious :
I.0 A governing abbot of regulars, even though he
be not an abbot nullius, may confer tonsure and minor
orders on such as are subject to him by virtue of at least
simple profession, provided the Abbot himself be a priest
and have lawfully received the abbatial blessing. Outside
these limits ordination is invalid unless the abbot possesses
episcopal character, and all contrary privileges are hereby
revoked.
jfe
x £ * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 964 435
This canon ends the controversy fl0 concerning the valid-
ity of ordinations performed by an abbot, either benedictus
ab episcopo or endowed with a special privilege, on a can-
didate not his subject. The relevant points of this sec-
tion are :
(a) The abbot must be an abbas regiminis, that is to
say, one actually governing, whether for life or for a
certain number of years. Hence a titular abbot or a
commendatory abbot, or an abbot who has entirely re-
nounced his office, may neither validly nor licitly confer
tonsure and minor orders.81 An abbot who has a co-
adiutor is still a governing abbot, and is therefore en-
titled to perform the aforesaid ordinations. Whether
Q
the coadjutor can validly confer them depends entirely on
his letters of appointment from Rome.
(b) The abbot must be a priest, as the II Council of
Nice and the Decretals clearly state,63 otherwise the
ordination is invalid.
(c) He must have been lawfully blest, i.e., he must
have received the abbatial benediction. The Pontificale
Romamim prescribes that the benedicendus must be pro-
vided with an Apostolic mandate which commits the bless-
ing to a bishop.
The bishop is the one in whose diocese the monastery
is located, unless the mandate permits the abbot-elect
to choose one according to his good pleasure. The
Pontificale also prescribes that two abbots should assist
the bishop in that function. By the way it may be added
60 This i-o-i trovers j was justified 01 S. C. C, Sept. 20, 1788; S. O.,
by conflicting decisions of the S. C. July 15, 1003 {A. S. 5., 33, 167);
a (Ricbter, Trid., p. 198); cfr. S. C. EE. et RR., Sept. so, 1697
Benedict XIV, De Syn Diotc, II, (Bizzarri, Coll., p. 38a).
ii, 13. Gasparri, Dt S. Ordination*, 82 C. 1, Dirt, 69: c 11 x, I, 14:
3- 955 tf : Many, /. c, p. 135 ft. c. 3, 6*, I, 7.
>Ic
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
436 ECCLESIASTICAL THINGS
that the abbatial blessing, though an imposing ceremony,
is not a Sacrament,03 but merely a sacramental.
(d) Those upon whom abbots may validly and licitly
confer tonsure and minor orders are the subditi vi pro-
fessions saltern simplicis, i.e., his own subjects by re-
ligious profession, which is always made into the hands,
or at least in the name, of the governing abbot. This too
is ancient doctrine.
When any one of these four conditions is wanting, the
ordination is invalid. But if a religious who is a conse-
crated bishop, e.g., a titular bishop, would ordain re-
ligious who are not his subjects, these orders would be
validly conferred, since, as it seems, the episcopal order
would supply the defect of jurisdiction.
2.0 Exempt religious can not be luitly ordained by
any bishop without dimissorial letters from their own
higher superior. This ruling, too, was insisted upon by
ancient synods and in many papal decrees,04 from which
sources it may be seen that exemption as well as the
obedience due to the lawful superiors would render the
conferring of orders by any bishop grievously illicit,
though not invalid.
3.0 Religious superiors may grant dimissorial letters,
but only for tonsure and minor orders, to such of their
subjects as have taken the simple triennial vows95 that
precede either solemn or perpetual vows.
Who are the superiors who may grant these dimis-
sorial letters? The supcriores maiores of orders of regu-
lars, of exempt and non-exempt religious congregations
whose members take triennial vows before they pronounce
ea A pamphlet was published some " 04 Cfr. c. 33, C. 16, g. 1 (Syn.
twenty years ago in Rome in which Agdc, 506); c. 1, Dist, 5 (Greg. I);
it was asserted tbat the abbatial c. 5* C. iS, g. 2 (Greg. I); c. 5, X,
blessing imprints an indelible char- I, 11.
acter. 00 See can. 574, ( 1.
idbyC ;Ic
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 964 437
a
solemn or simple perpetual vows. This ruling marks a
change in the former discipline," for the superiors of
religious congregations with merely simple vows did not
enjoy the privilege of granting such letters to their sub-
jects.
4.0 The ordination of all other members of religious
institutes is governed by the same laws as that of seculars,
and every indult granted to superiors for issuing dimis-
sorial letters to those of their members with temporary
vows who wish to receive major orders is hereby re-
voked. This is a reminder of the " Auctis Admodum,"
of Nov. 4, 1892, n. I and II. Formerly no religious who
had not professed solemn or perpetual vows could be or-
dained to major orders. If an urgent case came up they
were allowed to anticipate solemn or perpetual profes-
sion before the regular term had expired.
It may be asked who exactly are meant by " ceterorum
omnium aiumnorum cuiusvis religionis"? Only mem-
bers of non-exempt congregations whose members are
promoted to sacred orders : at least the revoking clause
points to these. It is evident, then, that can. 964 must
be understood as follows :
(1) Governing abbots, provided they are priests and
duly blessed, may confer tonsure and minor orders on
their own subjects only.
(2) Superiors of exempt religious institutes, whether
regulars or otherwise exempt, must give dimissorial let-
ters to their subjects, in order that a bishop may licitly
ordain them. Such dimissorial letters must be given for
tonsure and minor orders as well as for major orders, for
n. 2 of our canon does not distinguish between the differ-
ent orders. Therefore the religious exempt superiors, not
••S. C EE. el RR., May 6, 1864 (Bizxarri, J. c, p. 711); Feb. 9,
1894 IA. S. «... 26, 619).
J Original from
1L UNIVERSITY OF WISCONSIN
438 ECCLESIASTICAL THINGS
the local Ordinary, grant dimissorial letters for all orders,
lower and higher.
(3) All religious superiors of orders as well as con-
gregations, the constitutions of which prescribe perpetual
vows, may grant dimissorial letters to their temporarily
professed members, but only for tonsure and minor or-
ders.
(4) Members of religious institutes which are not
exempt need litterae dimissoriae from their own bishop
if they wish to be promoted to major orders, beginning
with subdeaconship. Hence with regard to sacred
orders these members fall under can. 956, which deter-
mines the competency of the bishop. Every indult to the
contrary must now be regarded as void.
(5) Novices of religious orders as well as congrega-
tions must observe the law binding seculars (can. 956).
(6) Members of religious societies must follow the
same rule (can. 956).
Here it may be asked whether a governing abbot may
address dimissorial letters to another abbot, who is en-
titled to confer tonsure and minor orders on his own sub-
jects : for instance to the Abbot President or Abbot Pri-
mate. This was possible and actually done before the
promulgation of the Code. But the practice can no longer
be sustained, since the legislator emphasizes the invalidity
of ordination performed on a non-subject. Notice well
the subject is one vi professionis, not by a transient trans-
ference of jurisdiction. N. 3, can. 964, does not contra-
dict this interpretation, because it permits the superiors
only in general terms to grant dimissorial letters without
specifying the prelate to whom they must be directed."
87 S. Rit C, Sept 27. *659. n. pro servitio alien** Eccltsiat, aut in
19, referred to by Card. Gaspirri, subdilos pariter alienos, etiam -it
reads: " Reliqua pontificalia txtra licentia Ordimoriorum, txtrcrwr mom
loca ipsii Abbatibus mbiecta, vel taieant: put* Campanarum btntdic-
* I Inruil*> Original from
.OO^K. UNIVERSITY OF WISCONSIN
CANONS 965-966 439
o
the bishop of the diocese
Can. 965
Episcopus ad quern Superior religiosus litteras di-
missorias mittere debet* est Episcopus dioecesis, in
qua sita est domus religiosa, ad cuius familiam perti-
net ordinandus.
■
The bishop to whom the religious superior must direct
the dimissorial letters, is the bishop in whose diocese the
religious house of which the ordinand is a member, is
situated.
It is not necessary to repeat the just complaints of
Benedict XIV concerning some religious who apparently
spent their night watches in profane things rather than
in the study of the sacred canons, and boasted of privi-
leges that existed only in their imagination.88 The law,
as stated in this canon, is an almost verbal repetition of
an enactment made by Clement VIII, or, at his command,
by the S. C. Concilii, on March 15, 1593. The privileges
granted to the Camaldolese did not greatly help them be-
cause the S. Congregation insisted upon their adapting
themselves to the actual practice,69 as stated in the fol-
lowing canon.
Can. 966
§ x. Tunc tantum Superior religiosus ad alium Epis-
copum litteras dimissorias mittere potest, cum Epis-
copus dioecesanus licentiam dederU. aut sit diversi
ritus, aut sit absens, aut non sit ordinationem habi-
a
c
twntm, Calicum, et simitium, in qui- *747* repeating the enactment of
bus sacra adlubetur unctio, nee non Clement VIII.
Uinorum Ordinum collationes." e» S. C. EE. et RR., July 13, 1730
«8" Jmpopti Nobis/' Feb. 17, (Biuarri, /. c, p. 34' 0-
>Ie
£ * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
440 ECCLESIASTICAL THINGS
turus proximo legitimo tempore ad normam can. 1006,
§ 2, vel denique cum dioecesis vacet ncc earn regat
qui charactere episcopali polleat.
§ 2. Neccsse est ut singulis in casibus id Episcopo
ordinaturo constet ex authentico Curiae episcopalis
testirnonio.
Only in the following cases may the religious superior
direct the litterae dimissoriae to another than the diocesan
bishop: (1) If the diocesan bishop has given permis-
sion; (2) or if he is of another Rite; (3) or if he is ab-
sent; (4) or if he does not hold ordinations at the time
stated in can. 1006, § 2; (5) or if the diocese is vacant
or ruled by one who lacks the episcopal character. How-
ever in every such case the facts must be attested to the
ordaining bishop by an authentic document of the court
of the bishop competent for ordination.
Notice that the text speaks disjunctively, which signi-
fies that any one of the enumerated reasons may be ad-
vanced and is sufficient for the religious superior to di-
rect the dimissoriae to another bishop. The first and
second of the five reasons mentioned are newly formu-
lated, though implied in former rules. Thus it is evident
that if a bishop is prevented from ordaining, he may en-
trust another bishop with this function.70 The difference
of rite always was acknowledged as sufficient reason for
choosing another bishop."
The last three reasons were officially recognized by the
Roman Court.72 A bishop must be regarded as " absent "
from his diocese also if during his absence he calls in
another bishop to hold ordinations.73 The competent
luRer). iuris 68, 73 in 6'. 7 2 Benedict XIV, " Impositi AT#-
71 Benedict XIV, " Etji faslora- bit," Feb. 37, 1747.
iu," May 16, 174;. J VII, n, XXII 73 Many. /. c. p. j8a.
f.; I IX, n. XIII
gle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 966 44i
bishop is supposed not to hold ordination at the next term
set by law if he does not ordain on one of the four
Ember Days, on the Saturday before Passion Sunday, and
on Holy Saturday.7* For these are the regular days for
general ordinations. Hence, even though the bishop
would have an ordination on another than the six known
Sabbata, the law would permit the religious superior to
direct his subject to another bishop. On the other hand,
the religious superior would not be allowed to address the
dimissoriae to another bishop, if the diocesan ordinary
held general ordinations on one of the six Saturdays, not
in his episcopal city, but in another place of his diocese, or
if he would have the ordinations held by another bishop,
provided he himself were present in the diocese.75
The last reason mentioned in our canon is vacancy of
the episcopal see whose occupant would be competent for
ordaining religious. This rule was established by the
practice of the Roman Court." Vacancy is here taken
in the strict sense of the word, as the modification evi-
dently shows. Therefore a scdes impedita is no true
vacancy, nor would suspension or excommunication of
the bishop constitute vacancy. Resides, if the Vicar
Capitular or the regular Administrator, or the Adminis-
trator Apostolic were a consecrated bishop, vacancy would
not be verified in casu.
Finally, § 2 requires authentic attestation by the epis-
copal court to the effect that one of the fivz cases really
exists. This document may be issued by the Vicar-Gen-
eral, or by the Chancellor of the diocese, or by the secre-
Q
"-.
T*Can. 1006, 1 2. Although S 3 "*«■ Saturdays" only, as it was
of the same canon permits the bishop understood generally.
to hold "general" ordinations on a *s S. C. C, Aug. i8, 1888 {A. S.
Sunday or feast-day of obligation, £., Vol. ai, 359 ff> ; Feb. 11, 1708;
yet our text, referring only to can. Many, /. c, p. 383.
1006, I 2, certainly intend! the 76 S. C. C, Tirasccn,, July 13,
178a.
►ogle
k ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
442 ECCLESIASTICAL THINGS
tary of the bishop ; " it must be given under the diocesan
seal, signed by one of the aforesaid officials, and enclosed
with the dimissorial letters from the religious superior.
Can. 967
Caveant Superiores religiosi ne in fraudem Episcopi
dioecesani subditum ordinandum ad aliam religiosam
domum mittant, aut concessionem litterarum dimis-
soriarum de industria in id tempus differant, quo Epis-
copus vel abfuturust vel nullas habiturus sit ordina-
tiones.
This canon, adopting the words of the Constitution
" Jmpositi Nobis," of Benedict XI V, cautions religious
superiors against committing fraud by abusing the per-
mission granted in the foregoing canon. It would be
fraudulent if they sent a religious to another house purely
for the purpose of avoiding the diocesan bishop. There
would be no fraud if the religious would dwell in another
religious house in another diocese for the sake of study,
or health, or vacation. Fraud is also committed, as the
text says, if the religious superior intentionally delays
the issuance of dimissorial letters to a time when the
bishop is absent from the diocese or will not hold gen-
eral ordinations. Of course, fraud may not be presumed,
but must be proved, which, generally speaking, is not an
easy thing.78
The reader will have noticed that there is no clause
revoking the privilege which some religious (for instance,
the Society of Jesus) enjoy of having their candidates
ordained by any bishop. Hence if this privilege was
granted after the Council of Trent, and directly, not by
communication, it still holds.78
TT Benedict XIV, " Imp otiti No* T8 Many, I. c, p. 383 f.
bit." Feh. |V, 1747. T9 " Impositi Nobis.'
'•
>Ie
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 967 443
What if the competent or diocesan bishop refuses to
ordain a religious provided with litterae dimissoriae from
his superior? In that case the superior is not allowed to
send the ordinand to another bishop, for this is not men-
tioned in can. 966, and hence nothing is left but recourse
to the Holy See (S. Cong. Relig.).
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
N
■
CHAPTER II
SUBJECT OF HOLY ORDERS
valid and licit ordination
Can. 968
§ 1. Sacram ordinationem valide red pit solus vir
baptizatus; licite autem, qui ad normam sacrorum
canonum debitis qualitatibus, iudicio proprii Ordinarii,
praeditus sit, neque ulla detineatur irregularitate aliove
impcdimcnto.
§ 2. Qui irregularitatc aliove impedimcnto detinen-
tur, licet post ordinationem etiam sine propria culpa
exorto, prohibentur receptos ordines exercere.
Only a baptized male can validly be ordained. In or-
der to receive orders licitly, the candidate must, accord-
ing to the judgment of the Ordinary, be endowed with the
qualities required by the sacred canons and free from
any irregularity or canonical impediment.
Those who have incurred an irregularity or other im-
■i
pediment, even after ordination and without their own
fault, are not allowed to exercise the orders they have
received.
§ 1 defines who are capable of receiving orders validly,
and who may receive them licitly according to canon law.
Two conditions are required for valid ordination, viz. : the
male sex and Baptism. The following classes of persons
are therefore incapable of being validly ordained:
AAA
i> I IT
I Originalfrom
5ie UNIVERSITY OF WISCONSIN
CANON 968 445
( i ) Women, who are debarred from the sanctuary by
divine positive law, if not by the natural law, according
to reason. This has been the constant teaching and prac-
tice of the Church from the time of St. Paul ] up to our
day. The tenets of the Pepuzians or Quintillians, of
Marcus Magus, and of the Collyridians, who admitted
women to the priesthood and its sacrificial functions, were
condemned as heretical.2 As to the institute of dea-
conesses and widows, it may be admitted that they formed
a special ecclesiastical corporation, or class, endowed with
quasi-clerical prerogatives. Their functions were simi-
lar to those of the deacons, whom they assisted with re-
gard to the female catechumens, the poor, and the sick.
At the same time authentic historical documents, espe-
cially can. 19 of the Council of Nicaea, prove that no
hierarchic or liturgical character can be attributed to these
deaconesses and widows, or, in the words of the aforesaid
canon 19, that they were ranked with the laity since they
received no orders.8
Concerning hennaphrodites, it must be said that com-
plete hermaphrodites, whose sex cannot be determined,
may not be validly ordained ; whereas those with whom
the male sex prevails may be ordained validly but not
licitly.*
(2) Incapable of validly receiving orders are also men
a
who are not baptised, because Baptism is the foundation
of, and the gate to, all the other sacraments. This, too,
is ancient and constant ecclesiastical law.5
01
1 Cfr. I Cor. xiv, 34 £.; I Tim. 8 Wieland, " Dxt Genctische Ent-
H, 11. vncklung der sag. Ordinei Minores,"
2 Epiph., Haeres., 49, n. a f.; 79; in Rom. Quartalschrift, 1897 Suppl.,
Irenaeus, Adv. Haer., I, 13, a; p. 60 ff.
Gelaaiua I, Ep. 11 (Constant, Efp. * Eschbach, Disputatione: Physio-
Rom. Pont, t., 1721, p. 85); Con- logico-Theologieae, 1901. p. 53 f.
nick, Dt Sacrum, et Cemuris, disp. B C. 19. Cone. Nic. I.. (= c. 5a.
ao, n. 94. C. 1, B. 1); cc. 1-3, X, III, 43-
>Ic
/ " ^ vj-iIs* Original from
UNIVERSITY OF WISCONSIN
446 ECCLESIASTICAL THINGS
Our text says vir, a man, which term, however, must
not be pressed to the extent of assuming a full-grown
man. For the ordination of infants, though illicit, is
valid, as Benedict XIV says.6 On the other hand, even
an adult man, if physically compelled to receive orders,
would not be ordained at all.7 As to grave fear brought
to bear upon an unwilling person, see can. 214.
The other class of persons mentioned in our canon are
those who may receive orders validly, but not lawfully.
They are either irregular or suffer from a canonical im-
pediment. This is a new regulation, for thus far a dis-
tinction was made only between incapacity and irregu-
larity. Now a strictly so-called canonical impediment is
introduced, which is less than irregularity.
Irregularity is derived from the Latin contra regulam,
and as a canonical term seems to occur first in a work of
Peter of Blois (-f- 1200). 8 It signifies general inhability
established by law, for there is no irregularity except it be
expressed in the law (can. 983). The effect of this in-
hability consists in forbidding one from being licitly or-
dained and from exercising the orders received. In this
respect there is no distinction between irregularity and
the simple canonical impediment, as § 2 of our canon
plainly states. Where, then, is the difference between
both ? It must be sought in the higher degree of inhability
and in the secondary effect attaching to irregularity. For
irregularity, although per se no penalty,9 yet may origi-
nate from guilt, which is followed by penalty constituted
in law, for instance, in the case of homicide and others
«" Eo quamvit," May 4. 1.MS1 fift «ery feature of penalty, as Phil-
so. ?8. ippa. K.-R.. 184$. I. 418 ft., does.
7 C. 3, X, III, 42. seems to us labor lost. We agree
sSy-rrw/Mm luru Canonic* (Hin- that the torn* ii not intended in
senilis, K.R., I. 9, note 4). recto, but in obliquo it is attached
9 Cfr. Layman, Theot. Moral., I. to the irregularities ex drlicto, as
X, tr. s» P- 5. c. 1, n. 1. To deny the latter term implies.
oogle
% .,1,, Original from
UNIVERSITY OF WISCONSIN
-
-'
'.■-.
CANON 969 447
mentioned in can. 985. One who is simply suffering
from an impediment is not supposed to have incurred a
guilt in the proper sense of the term, even though infamia
facti might be imputable to him. The consequence is that
one who, while suffering from a simple canonical impedi-
ment, receives or exercises an order, should not be pun-
ished as severely as one afflicted with irregularity.10 Any
other distinction between irregularity and the canonical
impediment proper, is, we believe, difficult to establish.
It may be added that irregularity is generally distin-
guished into a perpetual and a temporary one, according
to the duration or cessation of the impediment.
It may be total or partial. Total irregularity incapaci-
tates one for the reception and the exercise of all orders,
whereas partial irregularity merely deprives one of the
right of receiving or exercising a higher order.
The distinction between an irregularity from defect
and from guilt will be explained under 983, where refer-
ence is made to the origin of irregularities.
necessity and utility of the diocese
Can. 969
§ 1. Nemo ex saecularibus ordinetur, qui iudicio
a
proprii Episcopi non sit necessarius vel utilis ecclesiis
dioecesis.
§ 2. Non prohibetur tamen Episcopus proprium pro-
movere subditum, qui in futurum, praevia legitima ex-
cardinatione et incardinatione, servitio alius dioecesis
destinetur.
10 Cfr. can. 3374; Thesaurus-Gi- ularity, but the penalty is ferendoc
ra]di De Pornh Ecclesiasticis, sentcnliat; c. 1, Diet. 51: " irrCRu-
Romte, 1831, p. 311 (P. II, e. 10). tons se fociens promoveri sst de-
Irregularity does not create irreg- ponendus."
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
448 ECCLESIASTICAL THINGS
True to the admonition of St. Paul " not to impose
hands lightly upon any man/' the Tridentine Council
commanded Ordinaries to ordain only such, or as many,
as would be useful to the diocese." The same law is re-
enacted in our canon, with the limitation that it concerns
-
only the secular clergy. The bishop is to judge as to the
number of priests needed or useful for his diocese. Why
the religious clergy is not mentioned may be deduced
from the fact that their support and conduct, being guar-
anteed by their constitutions, obviates the danger of
their becoming a burden or a stumbling block to the
diocese.
§ 2 permits the bishop to ordain any one of his sub-
jects who may be destined for the future service of an-
other diocese, supposing legitimate excardination and in-
cardination.
This might happen if a diocese were well provided with
priests. But the bishop, before ordaining one who is his
own subject by reason of origin or domicile, must excar-
dinate him and the bishop for whose diocese he is des-
tined must incardinate him, according to can. in, § 2
(Com. Int. C. I. C.f Aug. 17, 1919).
'■-.
^\
".
forbidding ordination ex informata conscientia
Can. 970
Proprius Episcopus vel Superior religiosus maior
potest suis clericis ex quavis canonica causa, occulta
quoque, etiam extraiudicialiter, ascensum ad ordines
interdicere, salvo iure recursus ad Sanctam Sedem, vel
etiam ad Moderatorem generalem, si agatur de religi-
osis quibus ascensum interdixerit Superior provincialis.
11 I Tim. v, 2i\ Trid., Scis. 23, c. mo," July 28, 1906; S. C. P. F.,
16, de rcf.; Pius X, " Pieni I'eni- Aug. 1827 {Coll., n. 798).
jle
^ ,J » Original from
UNIVERSITY OF WISCONSIN
CANON 970 449
a
A bishop or higher religious superior may, for any
canonical, even though secret, reason, and without a for-
mal trial, forbid his subjects to receive orders; but a sub-
ject thus interdicted retains the right of recourse to the
Holy See, or in the case of religious who have been en-
joined by their provincial, to the superior general.
This text is taken from the Decretals and the Council
of Trent. Lucius III (1183) admonished religious that
it is more becoming and safer for subjects to obey their
superiors and remain in the lower ranks, than to strive
after a higher rank to the scandal of their prelates.11 The
Council of Trent,15 making these words its own, added
that the prelate may forbid any one to receive a sacred
order for any reason, even for a secret crime,14 and
without legal procedure. Our text simply says "ascen-
sum ad or dines interdicerc," which manifestly includes
all orders, also tonsure and minor orders. The bishop,
therefore, may forbid a student of a clerical seminary
to enter the clerical state, the religious superior may re-
fuse to a religious subject tonsure and minor orders,
and the ascent to higher orders. However, there must
be a canonical reason, even though only an occult one.
Why a reason is required is easily understood from the
fact that the one thus treated may have recourse to the
Holy Sec, which will in each case demand the reason.
Besides, it would be unjust to repel from the sanctuary
one whom God may have called. We hardly believe that
the Holy See will now-a-daysJB ask the Metropolitan
or nearest suffragan to demand of the bishop the reason
Q
i2Cc. 5, 17. X. I, 11. the other crimes had to be notorious
isSess. 24, c. I, de rtf. and proved, and penance had to pre-
MThe crimes mentioned in c. 17, cede.
X, t, 11 are: adulterium, periurium, 15 S. C. C, April II, 1668, quoted
kemicidium, fahum testimonium; by Benedict XIV, De Syn. Dioec,
but with the exception of homicide XII, 8, 4.
jle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
450 ECCLESIASTICAL THINGS
a
for refusing ordination, but will rather obtain that infor-
mation directly from the bishop. But the rule still holds
that the prelate is not bound to state the reason for his
refusal to the candidate himself. " The latter may have
recourse to the Holy Sec (S.C. Concilii), but the appeal
does not suspend the effects of the prohibition.17 If a
religious has been excluded from the reception of orders
by his provincial, recourse (not appeal) may be had to
the superior general. If the latter should confirm the
injunction, nothing is left for the religious but to have
recourse to the S. Cong. Religiosorum.
Finally note may be taken of the causa canonica, which
does not necessarily imply a crime, but may mean an
irregurarity, or a canonical impediment, or lack of ca-
nonical requisites. In order to form an objective and
impartial judgment it is advisable to follow the rules laid
down by Benedict XIV for discerning the qualities of
candidates.18 These rules provide for (i) Great vigilance
over the conduct and character of the candidates; (2)
properly and honestly conducted examinations which show
the intellectual and moral capacity of the aspirant; (3)
spiritual exercises or retreats; (4) observance of the
interstices between the various orders.
The same Pontiff gives some hints to confessors and
retreat masters with regard to rccidivi et consuctudinarii
preparing for orders. The confessor should ponder all
the circumstances and probabilities and remember that
he is a spiritual physician who should prescribe the proper
remedies. After having implored the divine assistance,
he should proceed firmly and justly and without human
respect. He may tell the candidate whom he thinks unfit
1« S. C. C, March ai, 1643 1T Benedict XIV, " Ad milUam-
(Richter, Trid., p. 87. n. 1). til/' March 30, 1742, I 23.
IB Dt Syn. Dioec, XI, 2, 16 ff.
'■-.
oogle
Y ,1,., Original from
UNIVERSITY OF WISCONSIN
CANONS 971-972 451
for the high vocation that there is no disgrace or shame
attached to withdrawing from the course begun, that he
had best take time for further deliberation, and that the
salvation of his soul is a stronger motive than human
respect.
■
the clerical state must be embraced freely
Can. 971
Nefas est quemquam, quovis modo, ob quamlibet
rationcm, ad statum clericaiem cogere, vel canonice
idoneum ab eodem averterc.
It is criminal to compel anyone, in whatsoever manner
or for whatsoever reason, to embrace the clerical state,
or to turn away therefrom anyone canonically qualified.
This has always been the practice of the Church,19
which even threatened with heavy penalties any minister
who ordained one against his will. The Code inflicts
excommunication (reserved to no one, however) for the
same transgression.10 Parents ought to know that they
commit a grievous sin against their children, the Church,
and society at large if they disobey this canon.
clerical training in seminaries
Can. 972
*
a
§ i. Curandum ut ad sacros or dines adspirantes inde
a teneris annis in Seminario recipiantur; scd omnes
ibidem commorari tenentur saltern per integrum sacra e
theologiae curriculum, nisi Ordinarius in casibus pecu-
liaribus, gravi de causa, onerata eius conscientia, dis-
pensaverit.
19 Cc. I, j, 7. Riit. 74; c aj, C. 20 Can. ajs*.
as. c. a.
>Ic
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
452 ECCLESIASTICAL THINGS
§ 2. Qui ad ordines adspirant ct extra Seminarium
legitime morantur, commendentur pio et idoneo sacer-
doti, qui eis invigilet eosque ad pietatem informet.
Care should be taken that those who aspire to sacred
orders be received into a seminary at an early age. All
candidates for the sacred ministry are obliged to live in a
seminary at least throughout the entire course of their
theological studies, unless the Ordinary, for grave rea-
sons and upon due deliberation, dispenses in individual
cases.
Candidates for orders who lawfully dwell outside the
seminary should be commended to a pious and worthy
priest, who should watch over them and train them to
piety.
In former times cathedral schools were conducted un-
SI
der the guidance of a scholasticus, and monastic schools
were also open to such as aspired to the clerical state.21
The Council of Trent " ruled that a seminar}' be estab-
lished in every diocese, if possible. The Febronians and
Josephinists tried to remodel the clerical seminaries after
a pattern unacceptable to the Church. Equally unac-
ceptable was the plan of certain university professors and
rectors, who insisted that clerical students should attend
the public State universities on the ground that it was nec-
essary to raise the educational standard of the clergy.33
Pius X centralized the many (about 300) diocesan semi-
naries of Italy into provincial seminaries.2* This meas-
ure had become necessary to insure greater efficiency.
All these, the so-called liberal no less than the conserva-
tion movements prove the importance of the clerical semi-
21 C. 1, C. \2, c. 2, 24Piu» X, "La Ristorazitme,"
23 Sett, 33. e. 18, dt rrf. May 5. 1904; Pio X. Sttoi Itli #
23 H. Schell. Der Katholisismus Suoi Inlendimenti, 1905, p. 1 3 f.
ah Prinsip dei Fortschrittts, 1907,
p. 28 ff.
>Ic
( * ^ -. -A,-* Original from
UNIVERSITY OF WISCONSIN
CANON 972 453
nary. Modern conditions require greater attention to
this matter, as may be seen from an Instruction of the
S.C. of Bishops and Regulars,26 where the rules for fre-
quenting non-ecclesiastical institutes are laid down. If at
ail possible, the young candidates should enter a Catholic
college to be educated for the priesthood. As to fre-
quenting secular universities, taking a post graduate
course may be permitted after the philosophical and theo-
logical courses have been completed in a Catholic school.
But no more clergymen are to be sent to secular universi-
ties than is necessary for the diocese. While they study
at the university, they should dwell in a seminary, or, if
this is impossible, live with an elderly priest or in a com-
munity. If the university is located outside the diocese,
the Ordinary shall recommend his students to the Ordi-
nary in whose diocese the university is, and the students
must present themselves to, and obey the latter. Both
Ordinaries should entrust the students to the care of a
priest of approved virtue, learning, and knowledge of the
young. This priest shall frequently inform the Ordinary
of the conduct of the clerical students at the university,
and the Ordinary himself shall demand frequent com-
munications from the students. This regulation was in-
culcated anew and made universal by the Motu proprio of
Pius X, " Sacrorum Antisiitum," of Sept. I, 1910, which
especially warned the students against .Modernism.26
Our canon permits the Ordinary to make an occasional
exception from the rule of taking the full theological
course in a clerical seminary, but it does not exempt him
from the obligation of entrusting such students to the
2ft July 7\, 1896 (Coll. P. F., n. year of age, and have them pas« a
1948); cfr. S. C. P. F., Oct 18. preparatory term of about two
1883, IV, 1 {Coll., n. 1606) rccom- years.
mended, especially for China, re- *e A. Ap. S.r II, 658 f.
ceiling youtha from the 10th to 14th
gte
( * ^ ^ -A,-* Originalfrom
UNIVERSITY OF WISCONSIN
454 ECCLESIASTICAL THINGS
vigilance of a pious priest. This does not precisely mean
that the student must live in the priest's house, although
to do so would be highly commendable. He may, ac-
cording to the said Instruction, live, e . g., with his parents,
provided only that a certain kind of spiritual guidance
is proffered.
It may be added that the Ordinary has full power to
demand compliance with these regulations, and no appeal
therefrom is permissible.27
ARTICLE I
REQUISITES OF CANDIDATES FOR ORDINATION
Can. 973
§ i. Prima tonsura ct ordines illis tantum conferendi
sunt, qui propositum habeant ascendendi ad presby-
teratum et quos merito coniicere liceat aliquando dig-
nos futuros esse presbyteros,
§ i. Ordinatus tamen qui superiores ordines recipere
recuset, nee potest ab Episcopo ad eos recipiendos
cogi, nee prohiberi a receptorum ordinum exercitio,
nisi impedimento canonico detineatur aliave gravis,
iudicio Episcopi, obsit causa.
§ 3. Episcopus sacros ordines nemini conferral quia
ex positivis arguments moraliter certus sit de eius
canonica idoneitate; secus non solum gravissime pec-
cat, sed etiam periculo sese comrnittit alienis communi-
candi peccatis.
§ 1. Tonsure and inferior orders should be given only
to such as have the intention to ascend to the priesthood
and give reason to hope that they will one day be worthy
priests.
27 Benedict XIV, " Ad militantu," March jo, 174a, | 34.
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 973 455
§2. If, however, one who has been ordained (say to
subdeaconship) refuses to receive higher orders, he can-
not be compelled by the bishop to receive such higher
orders, nor be forbidden the exercise of the orders he has
received, unless a canonical impediment or some other
grave cause, in the judgment of the bishop, should inter-
vene.
§ 3. The bishop shall not confer sacred orders on any
one unless he has positive proof, amounting to moral cer-
tainty, of the candidate's canonical fitness; otherwise he
not only commits a grievous sin, but exposes himself to
the danger of sharing in the guilt of another.
§ 1 is taken partly from the Council of Trent and sub-
sequent papal constitutions.38
§ 2 forbids forcing one into an ecclesiastical rank which
he perhaps thinks himself unworthy to hold. To pre-
vent a cleric from exercising an order which he has duly
and canonically received would be tantamount to declar-
ing him irregular. A canonical impediment, i. €., one
strictly so-called, or an irregularity, must be proved in
order to justify such a prohibition. The other grave
reason for which one may be forbidden to exercise an
order received, is a crime which, though as yet occult, is
liable to be divulged.
The moral certainty mentioned in § 3, as to the proofs
for the fitness of an aspirant to the sacred ministry may
be gathered from information given by the director of the
seminary and from the report of the synodal examiners.
These suffice to exonerate the conscience of the Ordinary.
It will not surprise the reader that the legislator here
speaks in the tone of a severe preacher, if he remembers
28 7W., SeM. 23, c. 4. de ref.; XIII, ■ In supttmo," Sept aj, 17J4,
Innocent XIII, " Apottolici minis- 9 2.
ttrii." May aj. 1733. I a; Benedict
oogle
Original from
UNIVERSITY OF WISCONSIN
456 ECCLESIASTICAL THINGS
that a great canonist and a great pastor, Benedict XIV
and Pius X, in their first encyclical letters drew the atten-
tion of the bishops to this important matter. Benedict
XIV, among other things, says it is better to have few
priests, but righteous, fit and useful, than many who con-
tribute nothing to the edification of the mystic body of
Christ.2* Pius X tells the brshops to carefully ponder the
fact that the faithful generally will be as good or as bad
as those whom they destine for the priesthood, and re-
minds them of St. Paul's warning not to be partakers of
other men's sins.30
Can. 974
§ i. Ut quis licite ordinari possit, requiruntur :
i°. Recepta sacra confirmatio;
2°. Mores ordini recipiendo congruentes;
3°. Aetas canonica;
4°. Debita scientia ;
5°. Ordinurn inferiorum susceptio;
6°. Interstitiorum observatio ;
7°. Titulus canonic us, si agatur de ordinibus maiori-
bus.
§ 2. Quod pertinet ad consecrationem cpiscopaleni,
servetur praescriptum can. 331.
§ 1. That candidates way be licilly ordained the follow-
ing conditions are required:
i.° They must have received the Sacrament of Con-
firmation ;
2.° Their moral conduct must be conformable to the
■
order they wish to receive ;
3.0 They must have attained the canonical age;
a» " Vbi primum," Dec. 3, 1740, »0 " E suprtmi," Oct. 4. x»oj
I 1. {Anal Btxk, XI, 378).
Go >gle
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 975-976 457
f
4.0 They must have the necessary knowledge;
5.0 They must have received the inferior orders ;
6.° The canonical intervals must be observed;
7.0 They must be in possession of a canonical title, if
they wish to receive higher orders.
§2. As to episcopal consecration, can. 331 must be ob-
served.
These points call for no comment here, as most of them
will be explained in connection with the following canons.
■
Q
the canonical age
Can. 975
Subdiaconatus ne conferatur ante annum vicesimum
primum completum ; diaconatus ante vicesimum secun-
dum completum; presbyteratus ante vicesimum quar-
turn completum.
No one shall be ordained subdeacon before he has com-
pleted his twenty-first year; deaconship cannot be re-
ceived before the twenty-second year is completed, and
the priesthood cannot be received before the twenty-fourth
year is completed.
For tonsure and minor orders no age is prescribed, but
the following canon establishes a certain limit.
the knowledge required
Can. 976
§ 1. Nemo sive saecularis sive religiosus ad primam
tonsuram promoveatur ante inceptum cursum theolo-
gicurrL
§2. Firmo praescripto can. 975, subdiaconatus ne
conferatur, nisi exeunte tertio cursus theologici anno ;
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
458 ECCLESIASTICAL THINGS
diaconatus, nisi incepto quarto anno; prcsbytcratus,
nisi post medictatem eiusdcm quarts anni.
§ 3. Cursus theologicus peractus esse debet non
privatim, sed in scholis ad id institutis secundum stu-
diorum rationem can. 1365 determinatam.
§ 1. Neither seculars nor religious may receive the
tonsure before they have begun the course of theology.
By the term cursus theologicus is to be understood
theology proper, which presupposes a course in the clas-
sics and philosophy. It had been previously decided that
the theological course would not be legally acknowledged
unless preceded by a collegiate and philosophical course.11
Consequently, although hcrmeneutics or an Oriental lan-
guage may be taught in the two year's philosophical
course, these would have to be considered as secondary
or accessory branches which follow the principal branch,
i. e., philosophy. Note that religious are expressly in-
cluded in this law and no exception is made for religious
who only make a promise, not strictly so-called vows, as,
for instance, the Eudists.82 The consequence for reli-
gious is that their clerics cannot be ordained before they
have begun their theological course. Beginning, how-
ever, may lawfully be taken even for the first month of
the theological course.
§ 2. With due regard to the ruling concerning age
(can. 975), subdeaconship may be conferred only towards
the end of the third year of the theological course, dec-
cons hip only after the beginning of the fourth year, and
the priesthood only in the second term of the fourth year
of theology.
The school year should last ait least nine months, and
US. C. Rcl., Sept. 7. '909. *d IV 82 S. C Rel., May 31, 1910 <4.
<A. Ap. S., I, 70a): can. 1365. 5 J. Ap. S., II, 449 O.
>Ie
fcrt|,-, Original from
UNIVERSITY OF WISCONSIN
CANON 976 459
■
a
these must be reckoned according to the calendar. The
feasts of Pentecost or Trinity cannot be taken as the end
of the school year because they are movable. If the
school starts about Sept. 10, it should last until June 10 of
the following year and close with a final examination."
Post mcdictatem signifies the second term, or semester,
during the whole of which the priesthood may be received.
But ordination to the priesthood does not dispense a
candidate from completing his course. Therefore, one
who is ordained on Holy Saturday must continue his
studies until the end of the school year and then pass the
examination (cum examine finali feliciter emenso).**
§ 3. The theological course must be taken, not privately,
but in a school conducted according to can. 1365. A pri-
vate course made outside a properly instituted school, even
under the direction of a professor, is not legal, nor may
the Ordinary accept it as sufficient for the litterae testi-
monials ** However, the same S. Congregation has also
declared that private studies may be permitted in rare in-
dividual cases, but only for the secondary branches.
Which branches of a priest's education are primary, and
which secondary, the Code does not state, but we may
deduce from can. 1365, § 2, that dogmatic and moral
theology are the main branches, whereas holy Scripture,
Church history, Canon Law, liturgy, sacred eloquence
and ecclesiastical music may be considered accessory. A
more satisfactory division may be derived from a decision
given in 191 2. There dogmatic and moral theology,
Scripture, Church history, and Canon Law are styled
main branches, whilst Biblical Greek, Hebrew, homiletics,
Patrology, liturgy, archaeology, ecclesiastical art, and the
Q
"-.
as S. C Consist., March 34, 1911, »S. C. Re!., Sept. 7, 1909, ad V
id 1 (A. Ap. 5., in. 181). (A. Af. S.. I. J02 f).
M Ibid.
►ogle
■**"* ^ -. ils* Original from
UNIVERSITY OF WISCONSIN
460 ECCLESIASTICAL THINGS
a
Chant are called accessory branches.88 According to the
declaration of 1909, if private study embraces only a sec-
ondary branch, an examination made before the examiners
will suffice. This examination may be taken at the end
of the school year together with the students who have
studied that branch in the school-room. In the first part
of the decision mentioned it is laid down that a theologi-
cal student who has missed school on account of sickness
or military service, may, if the time lost amounts to
no more than three months, supply the deficiency by pri-
vate study, but he must pass the regular examination. ,T
ordinations per saltum not permitted
Can. 977
Ordines gradatim conf erendi sunt ita ut ordinationes
per saltum omnino prohibeantur.
Orders must be conferred successively, and ordina-
tions per saltum are entirely forbidden.
Per saltum means by leaps and bounds, without keeping
the necessary intervals, or skipping an inferior order
which should precede the reception of a higher one. The
Council of Sardica (can. 13) prescribes that the ascent to
the priesthood should be made by degrees, in order that
the candidate may be tested as to his faith, modesty,
character and reverence. The object of successive or
gradual ordination, therefore, is to ensure due prepara-
tion and sufficient knowledge.58 An apprenticeship pre-
cedes every profession, and higher degrees are not con-
M S. C. Consist., July i6, 1912 the code, the latter certainly ia not
{A. Ap. S., IV, 491 )• opposed to our explanation.
a; S. C. Rel.f March i, 1915, ad as Cf r. c. i, DUt. 51; cc. I, 4, 7,
2 et i (A. Ap. S., VII, 1*3 f.). Al- Diat. 61; Propp. 5*. 53 Si*. Pistor.
though this is not expressly stated in damnttat, " Auctorem fidri," Aug.
28, 1794 (Detuinger. n. un. 1416).
ogle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
Q
CANON 978 461
o
ferred on such as are barely initiated. Besides, there is
also the succession of orders to be observed, as stated in
the Pontificale Romanum: tonsure (de clerico faciendo),
ostiariate, lectorate, exorcistate, acolythate, subdeacon-
ship, deaconship, priesthood.80
The text says " prohibeantur" thereby intimating that
this law is prohibitive, but not invalidating. Therefore
the diaconate is validly conferred, even though the sub-
deaconship was omitted.40 The priesthood could be
validly received by one who had never been ordained a
deacon 41 or ordained to deaconship invalidly. The H.
O., in 1842, decided a case in point. One who had been
invalidly ordained to the subdiaconate and the diaconate
because of lack of consent, was finally ordained a priest
He received the priesthood with the right intention, but
the question arose: Was he ordained validly? The
Holy Office decided yes, but enjoined that he be secretly
ordained to subdeaconship and deaconship.*2 Attention
may be drawn to the penalty of suspension. This is not
incurred unless the ordination per saltum is performed
maliciously,43 which, for instance, was not the case in
the instance mentioned.
THE INTERSTICES
en
Can. 978
§ 1. In ordinationibus serve ntur tempo rum intersti-
tia quibus promoti in receptis ordinibus, secundum
Episcopi praescriptum, sese exerceant.
§ 2. Interstitia primam ton su ram inter et ostiaria-
■
turn vel inter singulos ordines minores prudenti Epis-
s» Trid., Scss. 23, cc. ii, 14 d* 42 S. O., March 2, 184J (Coll. P.
ref. F„ d. 946).
«o C. i, Dist 52 (Alex. II). « Can. 2374.
41 C. nn. X, V, 39.
>Ie
Y ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
•
■
p
462 ECCLESIASTICAL THINGS
copi iudicio committuntur ; acolythus vero ad subdia-
conatum, subdiaconus ad diaconatuni, diaconus ad
prcsbytcratum ne antea promoveantur, quam acoly-
thus unum saltern annum, subdiaconus et diaconus
trcs saltern menses in suo quisque ordine fuerint ver-
sati, nisi necessitas aut utilitas Ecclesiae, iudicio Epis-
copi, aliud exposcat.
§ 3. Nunquam la men, nisi de peculiari licentia Ro-
man! Pontificis, minores ordines cum subdiaconatu
duove sacri ordines uno eodemque die, reprobata
quavis contraria consuetudine, conferantur; imo nee
primam tonsuram conferre licet una cum aliquo ex or-
dinibus minoribus, neque omnes ordines minores una
simul.
§ I. In ordaining, the intervals of time during which
the respective orders should be exercised, according to
episcopal prescription, must be observed.
The meaning of this law is that clerics should M exer-
cise " the orders they have received, and although the
minor orders are generally not *' practised/' except in
religious institutions, yet our text, speaking as it does of
all intervals and all orders, certainly intends to inculcate
some kind of practice or exercise, at least of the higher
orders.44 This is the very purpose of observing the in-
terstices. How the "practice" is to be made is left to
the bishop.45
§ 2. It is left to the bishop also to determine the in-
tervals between the tonsure and the ostiariate, and be-
tween the several minor orders. The interval between
the acolythate and subdeaconship must last one year;44
-
44 Many, /. c, p. 281 f., denies the exerceant is expressly used in the
necessity of exercising the orders, new Code-
saying that die ratio legit non cadit 45 Trid., Seas. .•.:, c. 11, de ref.
tttb :.■;.;,-. Yes, if the ratio is oot 40 A year, according to can. 3-', I
stated in the law itself, the term 2, means 365 days. But the eccle-
oogle
v .,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 978 463
a
the interval between the subdiaconate and the diaeonate,
as also the interval between deaconship and the priest-
hood, must last at least three mdnths, unless the bishop
deems it necessary or useful for his diocese to shorten
these intervals. Any plausible reason is sufficient. It
may be added that it is the ordaining bishop who grants
dispensation also in case of religious who may enjoy the
privilege of being ordained without regard to the in-
terstices.47 The bishop, in ordaining such as are not
his subjects, may also dispense from the intervals."
§3. Minor Orders and subdeaconship, or two sacred
orders, may never be conferred on the same day, without
the express permission of the Roman Pontiff. Every
contrary custom is hereby reprobated. Neither is it al-
lowed to confer tonsure together with one of the minor
orders, or all the minor orders at the same time.
The first clause is more severe than the second. For
to receive two higher orders on one and the same nat-
ural day — for this is here to be understood — was al-
ways forbidden to all, exempt regulars not excepted.*9
The Code adds the reprobating clause in order at least
to render contrary customs less admissible.
The second clause concerning tonsure and some or all
minor orders repeats a Decretal, but apparently admits
the contrary custom, which, as far as we are aware, was
in vogue in several countries. The rule not to confer sev-
eral sacred orders simultaneously also concerns the
Oriental Rites.50
■tastiral year may here he admitted. 48 S. C. Sacr., Aug. 15, 15109 M.
on account of the sacra tempora, Ap. S., I, 656).
and was always acknowledged by *0 C. 1, X, V, 10,
Roman practice. (Many, /. c, p. BO S. C. P. T-, April 13, 1807, n.
a8o.) XI; July 31, 1902, 0, 8 {Coll., nn.
47 S. C. C. May 17. '593; May 69*. 2149).
3». 1597; Sept. 12, 1609 (Richtcr,
TriH.. p. 3oo, n. 4 f).
'le
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
p
464 ECCLESIASTICAL THINGS
titulus 0rd1nat1onis
Can. 979
§ 1. Pro clericis saecularibus titulus canonicus est
titulus beneficii, eoque deficient*, patrimonii aut pensi-
onis.
§ a. Hie titulus debet esse et vere securus pro tota
ordinati vita et vere sufficiens ad congruam eiusdem
sustentationem, secundum normas ab Ordinariis pro
diversis locorum et tempo rum nccessitatibus et adiunc-
tis dandas.
For the secular clergy the canonical title is that of an
ecclesiastical benefice, or, where this is wanting, that of
a patrimony or pension.
This title must be secure for the life-time of the or-
dinand, and entirely sufficient to support him properly, ac-
cording to the regulations established by the Ordinaries to
meet the needs and circumstances of places and times.
Tide (titulus) originally signified an inscription placed
on a house or property to show its owner, or the name of
the place.01 Ecclesiastical language has evolved two spe-
cial meanings of the term, vis., name for an oratory
or a sepulchre of martyrs (e.g., titulus pastoris — S.
Pudenziana). This name was later transferred to certain
(25, then 49) churches of Rome, which in course of time
became the so-called titular churches of the cardinals.
As these churches had assigned to them a determined
number of priests and clerics who lived from the revenues
of these titles, the clergy itself was said to be " intitula-
tits " or " incardinatus." " Hence in this particular sense
01 Cfr. I. c. 2, 3. Cod. X, 10. 369 f-= Decreta Auth. S. Rtt. C,
62 Armellini, Lrnioni di ArchtoU Vol. IV, 343 f.
ogi% Cristiano, 1905, p. 192, 208,
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 979 465
a
the word title meant service in a determined church which
entitled a cleric to a decent living or support. This is
the origin of the first and only exclusively ecclesiastical
title called beneScium.
Later, especially in the 12th century, the practice arose
of admitting aspirants to orders ( from subdeaconship
onward) on the titulus of means of their own, which title
was known and canonically acknowledged as patrimony.**
After the Council of Trent there were added to the two
titles mentioned the titulus pensionis** and others ap-
proved by custom and formally sanctioned by the later
discipline of the Church.
dt
A title may, therefore, be defined as a eecurity given to
a clergyman to insure his honorable maintenance, thereby
enabling him to be promoted to higher orders. A title is
thus needed for every order from subdeaconship onward.
And from this general law no cleric, secular or religious,
is excepted, for itns not becoming that those who devote
themselves to the divine service should disgrace their
sublime vocation by begging or exercising a trade not
becoming to their state.68
Our code mentions three titles on which a secular
clergyman may be ordained, but calls that of benefice
the canonical title par excellence. This is quite intel-
ligible, for although the other two titles were also ad-
mitted by the Church, they were extraordinary and
tolerated only when a dispensation was granted. This
at least was the Roman practice, as Benedict XIV says."
Now-a-days, however, no dispensation is required if there
is no benefice available.
a
c
5S Cfr. cc. 4. 16. X, III, 5; « Trid., Sew. ai, c. a, dt rtf.;
Migne, P. L., no, 477; Benedict c. 6, Cone. Chalctd.
XIV. Dt Syn. Dioec. XI. 2. 14. 8« Dt Syn. Diotc, XI. 2. 14.
64Wernz, Jus Dtc, II, 114 <ed.
1)-
Q
;Ie
% ,] , Original fro m
UNIVERSITY OF WISCONSIN
406 ECCLESIASTICAL THINGS
a
i. The term benefice is to be understood of an ecclesi-
astical prebend which supplies its holder with a sufficient
income to insure a permanent livelihood. A benefice
must, according to our text, be secure and sufficient.
(a) It is judged to be secure if possessed actually,
pacifically, and permanently, according to the require-
ments established by the Council of Trent." The bene-
ficiary, therefore, must not only be appointed to, but
have actual possession of, his benefice. Besides, there
must not be any litigation or dubious claims to the pre-
bend, and, finally, it must be permanent.08
(b) A benefice must be sufficient to support its in-
cumbent decently. The amount required to constitute a
congrua is left to diocesan regulation. This was also the
view taken by the Roman Court.59 And most justly, for
circumstances of time and place differ widely. Who
could live now-a-days on forty scudi (forty dollars) per
p
year?"
Residential and non-residential benefices are estimated
differently- The amount of income accruing from a resi-
dential benefice depends on the regulations of the diocese
in which the benefice is located, whereas that of a non-
residential benefice depends on the rules of the diocese
in which the beneficiary is to live.01
It may be added that benefice is here to be taken in
its strictly canonical sense, and does not apply to most
American parishes, unless they be considered as benefices.
B7 Sets, at, c. a, de ref.; Many, 00 Benedict XIV, Inttitut., 16, n.
/. c, p. 337 <■ IV.
5* A benefice was considered per- 01 S. C. C, May rj, 17JJ
marent if bestowed for life, or at (Richler, /. c, p. 11*, n. 1). A de-
least for the respective order; 5. C. ficient benefice could be supplied by
C, July 8, 1690; April 14, 1696 a patrimony; S. C. C* Oct. 1589
(Richter, Trid., p. 113, n. 2 f.). (Richter; /. c, 11. 13).
BBS. C. C. July 1723 (Richter,
/. c n. 4).
^
£ * ^ ^ ,|„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 979 467
■
2. Patrimony, properly speaking, is an inheritance re-
ceived from one's ancestors, especially parents. Here
it means a subsidiary title, admitted for the needs or ad-
vantage of the Church. The conditions required are the
same as those demanded for a benefice. Hence the patri-
mony must be secure and sufficient. A secure patrimony
would be one consisting of real estate or other stable
and interest-bringing property, provided k is not
mortgaged. Mortgaged property is unsafe as it may be
sold at any time. The mere promise of parents or friends
to provide a patrimony would not be considered secure,"
nor the fact that the ordinand is by profession an artist,
a musician, a teacher, or possesses a doctor's degree."
Much less would manual Mass stipends be considered a
source of secure income. Government, State, and muni-
cipal bonds, and shares in reliable and conservative firms
and companies fl4 are in a different category. Live-stock,
grain and cotton or any marketable produce may also be
lawfully taken for patrimony.
As to sufficiency, what was said concerning the quan-
tity or amount of a benefice also applies to a patrimony.
If the interest on a certain capital is assigned, the latter
must amount to about $15,000 or $20,000, which, invested
at S%t would bring $750 or $1000 a year, which now-a-
days would just about afford a decent living.
If the ordinand assigns a portion of his own property as
a patrimony, this must clearly be determined and set aside
for the titulus ordinationis, and becomes inalienable. If
parents, relatives, or friends furnish a patrimony, they
must draw up a title-deed, donation, or note in legal form,
without fraud, condition, or liability. In other words,
«i S. C C, Oct., 1589; Oct. 2, 1609 (Benedict XIV, Inttitut , *6, n.
1717 (Richter, /. c, B. 16). VII).
«3 S. C. C, Oct., 1589; May 23, 64 Many, /. r„ p. 345.
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
468 ECCLESIASTICAL THINGS
the claim must be clear and complete, so that it cannot be
attacked under the civil law."
A Roman decision says that the title of patrimony
can not be used if one is to be ordained only for the
solace and spiritual comfort of his parents, and there
is no need or advantage on the part of the diocese to
recommend his ordination."
3. The titulus pensionis is of the same nature as that
of patrimony, and must offer the same guarantees of
security and sufficiency. Some writers take pensio in
the sense of ecclesiastical pension only, excluding civil
pensions,87 though neither the Council of Trent nor our
text restricts the term to a pension derived from an
ecclesiastical benefice. Therefore .other authons justly
admit any pension, provided it is secure and sufficient."
This view is supported by a decision of the S. C. C, which
admits an annual pension, if founded on immovable prop-
erty and secure." The main underlying idea always is
safety and sufficiency. Hence even a State pension, pro-
vided it is sufficient, may be accepted as a titulus ordina-
tionis, because such a title ordinarily is as safe as any
other.
loss and lack of a title
Can. 980
§ I. Ordinatus in sacris, si titulum amittat, alium
sibi provideat, nisi, iudicio Episcopi, eius congruae
sustentationi aliter cautum sit.
fl5 S. C. C, 1573, 1598, Nov. 29, v. Scherer, /. c, I, p. 36a; Werna,
1670 (Richtcr, Trid., p. 114, nn. 16, I. c, II, n. 93, p. 115, who Adds
17, 19); Benedict XIV, Xnstitut., 36, "super bonis immobilibui fundams
no. XIII, XXVIII f. sit," according to S. C. C, Oct. a,
6fl S. C. C, Sept. 9. i679 (Richtcr, 1707 (Richter, /. c, n. 20).
U c, n. 14). «»Cfr. S. C. C.f June ai. 16^9:
•7 Many. I. e.. p. 348. S. C. P. F., April a7. 1871. »d a
•8 Trid., Seas, ar, c. a, dt rtf.; {Coll., n. 1369).
jle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
9
CANON 980 469
§ 2. Qui, citra apostolicum indultum, suum subdi-
tum in sacris sine titulo canonico scienter ordinaverint
aut ordinari permiserint, debent ipsi eorumque succes-
sors eidem egenti alimenta necessaria praebere, donee
congruae eiusdem sustentationi aliter provisum fuerit.
§ 3. Si Episcopus aliquem ordinaverit sine titulo
canonico cum pacto ut ordinatus non petat ab ipso ali-
menta, hoc pactum omni vi caret.
§ 1. If a clergyman in holy orders loses the title to
which he leas ordained, he must procure another, unless
in the judgment of the bishop, he is well provided for in
some other way.
The title to which one is ordained is mentioned at the
act of ordination and is not liable to alienation, as has
been repeatedly declared by the S. Congregation.70
Hence a change of whatever kind must be notified to
the local Ordinary, whose subject the clergyman is. If
we say clergyman, we include religious, for the text siny
ply says : ordinat us . . . si titulum ami itat, thus including
all titles: benefice, patrimony, pension, service, mission,
mensa communis, and religious profession. Hence (l)
if one loses the title of benefice he must procure another
title, i.e., any one of those just mentioned. (2) This
must be done with the express permission of the bishop,
even though it is certain that the clergyman has a suffi-
cient livelihood.71 (3) The bishop may and should com-
pel a clergyman who has lost the titulus missionis to
procure another," as stated above. (4) A religious who
was ordained ad titulum mensae communis or ad reli-
gxosam professionem and loses this title must pro-
cure another; but in missionary countries such clergy-
TO Cfr. Richter, Trid., p. ii| f. T2 S. C. P. F., April 27, 1871 o.
71 S. C. C, Feb. 9, 1726; Not. ii (Coll., tx. 1369).
28, 1686; July 1687 (Ricbtcr, Trid.,
p. IIJ f., DD. 7, 39).
jle
j , Original from
UNIVERSITY OF WISCONSIN
470 ECCLESIASTICAL THINGS
men are only obliged to prove that they have sufficient
means to live." (5) If a patrimony assigned is changed
into a benefice, the bishop's consent must be obtained,
otherwise the change has no ecclesiastical effect.74
§ 2. Those who, without a previous Apostolic indult,
have knowingly ordained, or permitted to be ordained,
one of their subjects without a canonical title, are obliged
to support the needy clergyman until he is otherwise
provided with a living. This obligation also binds the
successor of the prelate.76
The bishop who is here put under obligation is not
the one who ordained the cleric, but the one of the sub-
ject ordained without a canonical title. The ordination
must have been performed with full knowledge of the
fact that there was no canonical title, i.e., one acknowl-
edged by the Church. If the bishop has been deceived
by the ordinand or his parents, he is not obliged to sup-
port the cleric. On the other hand, if he was aware of
the want of a canonical title, not only he himself, but his
successor, is under that obligation. The term successor
here includes the chapter, the Vicar Capitular or Admin-
istrator as well as the next bishop.7" The obligation is
limited by the condition of the clergyman and also as
to duration. If the clergyman is not really in need, but
has some other means of sustenance, no matter of what
kind, so it be but becoming to the clerical state, the ob-
ligation ceases. It also ceases as soon as the state of
need ceases. The bishop must defray this expense either
from his personal income or from the mensa episcopalis,
if there is such a one attached to his see-
rs Ibid. »nd S. C. EE. et RR., 7S Cfr. c. 6. Cone. Chilcei., c i,
Dec. jo, 1838 (Bimrri, Collect, Dist. 70; cc. 4, 16, X, III, 5.
p. 83 f). ?« Reiffenstuel, 1. I, tit. u, n. 191
74 S. C C, July so, 1619; Not. ff.
16, 1686 (Richler, /. c, nn. si, 28).
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
"
CANON 981 471
§ 3. If a bishop has ordained a cleric without a canoni-
cal title, with the mutual agreement that the ordinand
should not demand any support of him, the stipulation
is void.
Such a practice would savor of simony, and the text
from which the Code took this law, actually belongs to
the title on simony.77 The penalty is suspension from
conferring orders for one year and is reserved to the
Holy See.Ta
titulx servitii et missionis
Can. 981
§ 1. Si ne unus quidem ex titulis de quibus in can.
979. § h praesto sit, suppleri potest titulo servitii dioe-
cesis, et, in locis Sacrae Congregation! de Prop. Fide
subiectis, titulo missionis, ita tamen ut ordinandus,
iureiurando interposito, se devoveat perpetuo dioecesis
aut missionis servitio, sub Ordinarii loci pro tempore
auctoritate.
§ 2. Ordinarius presbytero, quern promoverit titulo
servitii ecclesiae vel missionis, debet beneficium vel
officium vel subsidium, ad congruam ciusdcm susten-
tationem sumciens, conferre.
If none of the three titles, — benefice, patrimony, pen-
sion,— is available the title of the service of the diocese,
c
or, in the provinces subject to the S. C. Propanda, the
titulus missionis may be substituted. However, in both
cases the ordinand must make oath that he will perma-
nently serve the diocese or mission under the jurisdiction
of the respective local Ordinary. The Ordinary owes to
the one promoted to the title of service or mission either
TT C 45. X, V, j. T8 Sec can. 3373, n. 3.
GoogI
Original from
UNIVERSITY OF WISCONSIN
472 ECCLESIASTICAL THINGS
a benefice or an office or a subsidy affording him sufficient
support.
The titulus servitii Ecclesiae was first introducted un-
IK
der Eugene IV (1431-1447), who granted this privilege
to the metropolitan of Florence. Later it was also per-
mitted to the City of Mexico, under the title of admin-
istration, and as such was acknowledged by the Latin
American Council of 1899.™ The titulus missionis,
which is only another form of the titulus servitii Ec-
clesiae, was first granted to the Irish College in Rome
and then extended to other colleges under the Propa-
ganda.80 It was the usual title to which the clergy of the
U. S. were ordained while we were under the jurisdiction
of the said Congregation. When the S. C. Consistorialis,
A.D. 1909, transferred the American, Irish and Scotch
colleges in Rome to its own jurisdiction, it changed the
titulus missionis into titulus servitii*1 Since 1908,
America and Great Britain also belong to the jurisdiction
of the S. C. Consistorialis, and the titulus missionis is
changed into that of service of the diocese, acknowl-
edged not as canonical in the strict sense, but as legal
or ecclesiastical ; therefore no special faculties are needed
to ordain one on this title.
I. Roth the titulus servitii and the titulus missionis are
subsidiary or extraordinary titles, which may only be used
when there is none of the other three (benefice, patri-
mony, pension) available, and consequently should be
employed only with discretion and for candidates who
give manifest signs of a priestly vocation."
tb Lingen-Rcusa, Causae Selector, bi S. C Consist., Nor. it, 190$;
p. 3; A. S. S., is, 569; Acta et Aug. 6, 1909 (A. Ap. S., I, 148 ff;
Decrtta Cone. £.•!. Am., 1900, p. 678 ff.).
as4. n. 58a. « S. C. P. F. April 37, 1871. no
80 Urban VIII. " Sacrosanctat," 3, 6. 7 (.Coll., a. ij«9>.
April S3, 1 63 ■ : May 18, 1638.
jle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 981 473
■
2. Before they are ordained subdeacons, the ordinands
must promise under oath to devote themselves to the
permanent service of the diocese or mission for which
they are ordained.
3. This oath, the formula of which has been re-
-
modelled,83 excludes entrance into a religious community
without the special permission of the Holy See, which is
granted either by the S. Cong. Consist., if one was or-
dained to the title of service, or by the S. Cong. Propa-
ganda, if ordained to the title of mission.
4. By common law both titles are restricted to the re-
spective diocese or the mission for which one was or-
dained, and the oath also is limited. In consequence no
one could formerly, without a special indult from the S.
Congregation, pass from one diocese or mission to an-
other.84 However, the bishops of England obtained an
Apostolic indult that permitted one ordained for a cer-
tain diocese to be transferred to another diocese of the
same ecclesiastical province without taking a new oath
and without recourse to the Holy See. This indult was
later extended to the dioceses of the U. S. and may still
be made use of in both countries because it has not been
expressly revoked by our canon.85
5. Either title may be supplanted by another, for in-
stance, patrimony or pension. However, this change re-
quires permission from the Holy See. If the title on
which a priest was ordained is lost, and not supplanted
by another, he is not suspended, but the Ordinary must
compel him to procure another title.80
■
88 S. C. Consist, Aug. 6, 1909 {A. 85 S. C. P. F., Aug. :8, 1885.
Ap. S., I, CB6). 80S. C P. F.. Aug. 18, Nov. 30,
MS. C. P. F., April 37, 1871. n. 1885 iColi, n. 1641); can. 4.
13; Feb. 4. 1873. »d 4 (.Coll., nn.
1369. «m).
>Ie
% ,1,., Original from
UNIVERSITY OF WISCONSIN
474 ECCLESIASTICAL THINGS
titles for religious
Can. 982
§ 1. Pro regularibus titulus canonic us est sollcmnis
religiosa professio seu titulus, ut dicitur, paupertatis.
§ 2. Pro rcligiosis votorum simplicium perpetuorum
est titulus mensa communis, Congregationis aliusve
similis, ad normam constitutionum.
§3. Ceteri religiosi, etiam ad ordinationis titulum
quod attinet, iure saecularium reguntur.
§ 1 . For regulars, the canonical title is that of solemn
religious profession, or, as it is called, poverty.87
The Council of Chalcedon (can. 6) called this title
titulus monasterii,"* which is a juridical term, because
under Justinian law 90 the monastery was a corporation
responsible for the maintenance of its members. When
the more centralized orders of the Mendicants arose, this
title was necessarily transferred either to the province
or to the order, and called religious poverty. Salva rever-
ent ia it may be permitted to say that this term has little
justification in juridico-canonical language. It is for this
reason, no doubt, that our Code adds: ut dicitur.
The title paupertatis is strictly limited to regulars.
to wit, members of religious orders with solemn vows,
and to solemn profession. Hence clerics belonging to
orders whose members are only simply or temporarily
professed, cannot be ordained on the title of religious
profession.00 This applies also to regulars working on
the missions that are under the jurisdiction of the Propa-
ganda.8'
a
87 S. C. P. F., April 37, 1871, a. » Avetis admodum, Nov. 4, i8o».
11 {Coll.. n. 1369). n. 1.
B8 C. i, Dist. 70. ■! S. C. P. F., April *7» 1871. ■■
88 Cod. Just., I, 3. 4 (Coll., n. 1369).
►ogle
Original fro rn
UNIVERSITY OF WISCONSIN
—
a
N
■
"-.
CANON 982 475
§ 2. For religious of simple perpetual vows, the title
is that of tnensae communis, or congregationis, or a
similar one, according to their own Constitutions.
This title is not called canonical in our text, but is
legalized or acknowledged as valid for all congregations
whose members take simple perpetual vows. Formerly
it needed a special privilege or indult, for which each
religious congregation, even though exempt, had to ap-
ply to the Holy See.9*
This title signifies the same as that of religious pro-
fession, to wit, the claim to decent support. If it is
lost, either by dismissal or withdrawal from the com-
munity, the Ordinary may suspend such an ex-religious,
unless he has acquired another title sufficient for decent
support.98
§ 3. All other religious fall under the common law
of the Church, so far as the tide of ordination is con-
cerned. Hence
i.° Religious with purely temporary vows cannot be
ordained subdeacons unless they have a canonical title,
or one acknowledged by law, as prescribed for the secular
clergy;"
2.0 Novices are bound by the same law as the secular
clergy ;
3.0 Members of religious societies without vows must
obey the law laid down for the secular clergy, unless they
have a special privilege.1
86
02 S. C. P. F.t ibid., Leo XIII, aot i860 id 1 (Bizzarri, /. c, p.
" Conditaff," Dec. 8, 1900, | 2, n. 6. 858 f.).
»S S. C. EE. et RR.. Dec. jo, fifi As to the penalty, tee can.
1838 (Bizzarri, Coll., p. 84). 1373. 3°-
04 S. C. auper Statu Regul.. Jan.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
476 ECCLESIASTICAL THINGS
ART. II
irregularities and other impediments
Can. 983
Nullum impediment urn perpetuum quod venit no-
mine irregularitatis, sive ex dcfectu sit ex delicto, con-
trahitur, nisi quod fuerit in canonibus qui sequuntur
expressum.
No permanent impediment which comes under the
name of irregularity, whether it arises from a mere de-
fect or from a crime, is incurred, unless it is expressly
stated in the following canons.
The legislator has laid down (can. 968) a distinction
between irregularity and simple canonical impediment.
Now he determines the source or origin whence irregular-
ity may be known or gathered — the fons cognoscendi
This is the Code, and the Code only. Indirectly this
canon insinuates the power that may set up an irregular-
ity. It is the common or universal law, or the Sovereign
Pontiff, the legislator of the universal Church, who alone
can lay down laws for all the clergy. The clergy is the
same wherever the Church exists, and requires essentially
a
the same qualities in all its members, and uniformity of
discipline in this very important matter is absolutely re-
quired, lest some should seek exemption or admission into
a laxer province.*"* The proposition that the Pope is the
sole competent law-giver must not be understood as
implying that custom B7 or particular synods did not
contribute to the establishment of irregularities. For.
»« Phillip*. K.R., 1845: Vol. I, or W^rni, lut Dterwt.. Vol. II.
4" i- n. 97, p. 134 f- (ed- i).
idbyC jle
J , Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
CANON 983 477
like any other merely ecclesiastical law, that concern-
ing irregularities had its genesis and development.
Since the completion of the Decretals no new irregulari-
ties have been added.
The enumeration of irregularities in our Code is to be
understood taxative, i.e., as full and complete. No others
are admitted; nor can new ones be established by any
bishop, for single bishops are not competent to make laws
for the universal Church. And irregularities belong to
universal or common law.
The canon distinguishes between irregularity ex
defectu and ex delicto. This distinction is first found
in a decretal of Innocent III, where the note or mark of
crime, and the mark of mere defect, are clearly kept
apart.9"
Irregularities are, first and above all, a safeguard of
the dignity of the sacred ministry, not a penalty. It is
true that the cause of an irregularity may be a crime,
and that the irregularity itself may therefore appear as a
penalty. But still the penal element attached to an irreg-
ularity is not primarily intended by the Church, but only
accessorily or secondarily 8B and per modum concotnitan-
tiae. The primary intent is to safeguard the sacred min-
istry from profanation, as stated above. This primary
intention appears more clearly in the irregularities ex
defectu, which are not imputable to those affected by
them. The Church wants her ministers to be blameless
in every respect, like the bodyguard of a king, whose
members are " drafted " from among the most capable of
his subjects.
Concerning the historical development, it may be noted
that some irregularities were established from the very
98 C. 14, X, V, 34, de purgation* BB Wcrnz. /. c, II. n. 96, p. 121.
anoniea.
►ogle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
478 ECCLESIASTICAL THINGS
beginning of the Church, as the pastoral letters of St.
Paul testify. No doubt the Mosaic Law furnished some
prototypes for the priesthood of the New Testament,
although the old ceremonial law could not essentially in-
fluence the New Dispensation.
IRREGULARITIES EX DEFECTU
Can. 984
Sunt irregulares ex defectu:
i°. IHegitimi, sive illegitimitas sit publica sive oc-
culta, nisi fuerint legitimati vel vota sollemnia pro-
fessi;
D
20. Corporc vitiati qui secure propter dcbilitatero,
vel decenter propter deformitatem, altaris ministerio
defungi non valeant Ad impediendum tamen exerci-
tium ordinis legitime recepti, gravior requiritur de-
fectus, neque ob hunc defectum prohibentur actus qui
rite poni possunt ;
3°. Qui epileptici vel amentes vel a daemone pos-
sessi sunt vel fuerunt; quod si post receptos ordines
tales evaserint et iam liberos esse certo constet, Ordi-
narius potest suis subditis receptorum ordinum exer-
citium rursus permittere ;
40. Bigami, qui nempe duo vel plura matrimonia
valida successive contraxerunt ;
5°. Qui infamia iuris notantur;
6°. Iudex qui mortis sententiam tulit;
70. Qui munus camificis suscepcrint eorumque vol-
untarii ac immediati ministri in exsecutione capitalis
sententiae.
Irregular in consequence of a defect are:
i.° Those of illegitimate birth, no matter whether their
►ogle
% ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
CANON 984 479
illegitimacy be public or occult, unless they have been
legitimated or made solemn profession.
The tenth and eleventh centuries are known for dis-
ciplinary relaxation and for a low conception, or at
least an imperfect practice, of sacerdotal celibacy. To
check the evil, the nth presbyterorum were first excluded
from entering the clerical state, or at least from succeed-
ing their progenitors in ecclesiastical benefices.1 Gradu-
ally, however, the note of illegitimacy was extended to all
born out of lawful wedlock.2 What illegitimacy means,
as well as the mode of legitimation, has been explained
elsewhere.8
Excepted from this rule arc those who have been
legitimated either by a subsequent marriage, or by a
papal rescript. Note, however, that legitimation does
not permit one to become a bishop or Cardinal,* whereas
inferior prelacies are not excluded from its effects.
Besides, as the Decretals had already enacted, religious
profession removes the stain of illegitimacy. But this
effect only follows solemn profession and extends only to
the priesthood inclusively, all, even regular prelatures
being excluded.5
The text says: no matter whether the illegitimacy be
public or occult. We here take these two terms in the
same sense as public and occult impediments; the dif-
ference lying in the fact whether it can or cannot be
proved in court.* The mere fact is sufficient to debar one
from receiving orders. The judgment of the Church is
milder if illegitimacy is doubtful, and canonists hold that
expositi or foundlings, for instance, are not to he re-
1 C. is, Dist. 56. 6 C 1, X, X, 17: " pracloliontm
aCfr. X, I, 17; C. 13, X, IV, 17. veto nullatenus habtant."
8 Cf r. can. 1114 f. 0 Can. 1037.
*Cfr. can. 331. 5 1, n. 1; can.
232, I 2, n. 1.
jle
/•^ ^ v ,1,., Original from
UNIVERSITY OF WISCONSIN
480 ECCLESIASTICAL THINGS
garded as illegitimate. Yet the practice rather favors
dispensatio ad cautelam.1 Illegitimacy is not to be ex-
tended to the second generation. If the son was born
legitimately, it makes no difference whether his father
pi
was born legitimately or illegitimately.8
2° Men who are defective in body or who, on account
of weakness, cannot safely, or on account of deformity,
cannot becomingly perform the functions of the altar. A
greater defect is required to prohibit one from exercising
an order already lawfully received, than for receiving a
new order, nor are clerics forbidden by reason of such
a defect to perform functions which they can properly
perform.
The reason for this defectus corporis is incapability of
ministering at the altar properly and the danger of ex-
citing derision on the part of those present. The text sim-
ply says corpore vitiati, and refers every function to the
ministry of the altar. Some examples may illustrate
the text.
(a) If one has not the necessary stature to reach the
altar properly, he would certainly be irregular.0
(b) One who is minus a hand or a finger which are
necessary for handling the sacred species, is irregular.
This is the case if thumb and index finger are missing.
In cases where the hand was complete, but a great stiff-
ness of the arm, caused by apoplexy or paralysis, ren-
dered the breaking of the host or the making of the
sign of the cross impossible, the S. Congregation denied
a dispensation.10
T C. un. X, V, |»J Phillips, /. c, P. II. sJles. *'. a. $3: but tbe
I. P- 530: Wcnu, /. c, II, 11. 131, S. C. C, July 12, 17*1 (Richter,
p, 184. /• C,t 34°. n. »j) in one case left it
8 S. C. C, Nov, 9, 1647; Jan. 23, to the judgment of the bishop.
1610 (Kichter. Trid., p. 465. nn. 6, 10 5. C. C, M»y 6, 1775; Dec. 19,
7). 177a; July 28, 1770 (Ricater, /. c,
0 Birbosa, Dr Off. et Pot. Epi., nn. 18, 17. 16).
jle
Original fro rn
UNIVERSITY OF WISCONSIN
CANON 984 481
%
(c) Concerning the eyesight, irregularity certainly ex-
ists where there is complete blindness or loss of the vis
visiva. Thus, if one had such feeble eyesight as not to
be able to read the Missal, and if the defect were in-
curable, no dispensation for receiving holy orders would
likely be granted, even though the petitioner would be
useful and his services needed for the diocese or some
charitable institution.11 If the left or " canonical eye M
is strong and sound, irregularity can not be asserted,
but a man having the use of only one eye is certainly ir-
regular.
(d) As to the sense of hearing, those who are com-
pletely deaf or dumb are irregular. The same is true of
those who stammer in a very offensive manner."
(e) A special class is that of the deformed, who are
destitute of a limb and thereby rendered abnormal. To
this class belong all who lack the nose, or an arm, or
a leg, or who suffer from gout or paralysis so that they
appear stooped or are unable to make a genuflection ;
also those who limp considerably, or are lame. In this
latter case the degree of scandal or ridicule must be con-
sidered.18
The text says that the defect must be greater if one
has been already promoted to sacred orders, to inhibit
the exercise of that order.14 But if the defect is too
great, neither permission nor dispensation may be ex-
pected. Thus a dispensation was denied to a priest who
Q
u S. C C, Sept 17, 1814 (Richtcr, /. c, n. aa) : " auditus et
(Richter, I. c> n. as); May 19, vocis vitio," unfit for chanting the
1006 (.-hi a!.. Eecl.. XIV, 1 09 f.) I Mass or hearing confessions.
tee c 7, X, I, 20; c. a, X, III, 6. is S. C. C, Jan. ao, 1798; Jan.
laS. C C, April 14, 183* 28, 183a; May as, 1833 (Richter,
(Richter, I, c, n. a8): notabitittr /. c, nn. 20, 27, 29).
baibunms. fit neither for ad- 14 S. C. C, May 5, 1775. "
ministering the Sacraments nor for pluries (Richter, /. c., a. ia).
teaching; S. C C, Jan. as, 1806
>Ie
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
Q
N
■
'■-.
482 ECCLESIASTICAL THINGS
could stand on his feet only during the consecration,11
whereas another who was blind and could say Mass
with the assistance of another priest was granted a dis-
pensation, since there was no other church to say Mass
and the priest was poor.18
3.0 Epileptics, the insane and possessed, who are no7u
or have formerly been in this condition. If they have be-
come afflicted after ordination and recovered their health,
the Ordinary may permit them again to exercise the or-
ders they had received. As to epilepsy, the medical au-
thorities XT tell us that it has many and different forms:
convulsions in which patients fall down, attacks which
occur only at night, epilepsy in which the physical signs
are almost entirely lacking, ambulatory epilepsy, etc.
All are attributable to nervous disease. The same is true
of insanity.
Diabolic possession was in former times often con-
founded with epilepsy.
As to epilepsy, the S. Congregation, as a general rule,
demanded the testimony of a conscientious physician re-
garding the nature and progress of the disease, and sub-
sequent freedom from attacks, which has to continue
from one to two years at least. In cases where the at-
tacks occurred only at long intervals, dispensation was
sometimes granted, sometimes refused.18 Hence the rule
stated above is safe to follow. The same may be ap-
plied to insanity and possession, though in one case the
S. C. denied a dispensation even though the patient had
had no attack for three years.19 The term Ordinary here
15 S. C. C, Dec. 18, 1841 Ubid., is S. C. C, Aug. 25, 1905: Not.
n. 31). 24, 1906 (Anal. Ecel., L, XIII,
iflS. C. C, Aug. 23, 1727 {ibid., 370 f.; L. XIV, 436 f).
TS). ID S. C. C. Dec. 2. 17-M (RicMcr,
If See O'Mallcy-Walih, Essays I. c, p. 340, n. 10): in one instance
in Paslvral Medicine, p. »5i ft". the S. C. C, April zj, 1816 {Rickier,
ogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 984 483
o
includes the major superiors of exempt religious.
4.0 Bigamists, who have validly and successively con-
tracted two or more marriages. The reason for this law
is stated in can. 1142. Note, however, that bigamia in-
terpretative! or simultanea no longer entails irregularity.
Those only are called bigamists, who after the first valid
marriage has been dissolved, either by a dispensation
a tnalritnonio rato, or by death, have married a second
time and oftener. Whether the application of the Pauline
Privilege would also count, seems doubtful.20
5.0 Those who have incurred infamia iuris, loss of
reputation or good name as stated in the law. Infamia
iuris is a penalty inflicted on certain crimes expressly
mentioned in the law,31 either ecclesiastical or civil. The
ecclesiastical law mentions several crimes as involving
infamy ipso facto.22 If a declaration is required to the
effect that one is looked upon as infamous, infamy is not
actually incurred until this declaration has been expressly
made.23 Infamy induced by civil law doubtless entails
irregularity.24
6.° A judge who has pronounced sentence of death.
7.0 Those who have held the office of executioners and
all their voluntary and immediate helpers in the execu-
tion of capital punishment.
These two irregularities are styled ex defectu lenitatis,
as they are supposed to indicate a lack of gentleness.
It seems meet that the representatives of Christ, who was
the meekest and gentlest of men, should be endowed
with this preeminently Christian quality, which appears
n. n> required ten years* freedom 21 Can. 2293.
from attack, but the petitioner had 23 Canons ajao, aja8, *J43» MS**
followed a military career. 335*. 2357-
so Because Baptism wipes out 2a Canons 2314, 3359.
every stain, and bigamy certainly 24 Cfr. Wcrnz, II, a. ijo, p. 177;
must be considered a personally con- Gasparri, J. c, n. 240 f.
tr acted stain.
Go >gle
£ ' ^ ^ %\s% Original from s
UNIVERSITY OF WISCONSIN
-'
■
9
484 ECCLESIASTICAL THINGS
notably wanting in all who cooperate, although without
any fault of their own, in the infliction of capital punish-
ment.26 The Code restricts the defects formerly enumer-
ated under this heading to strict cooperation in carrying
out the death sentence. The assistants must act as
helpers of the hangman or electrocutioner voluntarily,
i.e., of their own accord, and immediately, whereas the
job of the hangman is itself sufficient to involve irregular-
ity. Soldiers or policemen who guard the place of
execution do not incur irregularity; neither do priests and
ministers of justice who assist or witness the act."
IRREGULARITIES EX DELICTO
The pastoral letters of St. Paul form the foundation
of the ecclesiastical discipline, which, however, wavered
and changed considerably in course of time. " Having
no crime," " was the warning of the Apostle to Timothy
when ordaining ministers of the New Dispensation. A
crime in legal parlance always supposes a public or
at least externally committed deed, which for one reason
or another disturbs the public order and is offensive to
those who witness it. Crime and sin must be and were
distinguished from the beginning.28 Baptism indeed
wipes out sin and crime, but the fomes peccati remains.
It seemed unbecoming that men who had committed one
of the grosser crimes that were punished with special
penances in the early Church, should be elevated to the
sacred ministry. Three crimes (apostasia. moechia, and
homicidium) were singled out as deserving of public
» Cfr. c. 8, Dist. 50; c. X, Dist. tiooed, but they may fall under the
51; S. C. C, April 22, 1673. Zam- following heading.
boni, Collect., II, 330, a. 3; May 27 Cfr. I. Tim. Ill, to: Tit. I,
14, 1825 (LingcD-Reuss, Causae 6 f. ; Phillips, K -R.. I, 550 f.
Selector, p. 113). sb See the Dictum Gratiam 9&
:6 Soldiers are here not men- Dist. ty
ioi >gle
Y ,1,., Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 985 485
penance, which latter almost automatically excluded one
from embracing the ministry.2* As the Church spread,
her discipline grew milder and many aspirants to the
clerical state did not measure up to the primitive, rather
severe requirements. This compelled the Church to miti-
gate her former restrictions with regard to admission
to the priesthood. Yet the principle of decency and
blamelessness was retained intact.
Can. 985
Sunt irregulares ex delicto :
1 -. Apostatae a fide, haerctici, schismatici ;
20. Qui, praeterquam in casu extremae necessitatis,
baptism um ab acatholicis quovis modo sibi conferri
siverunt ;
30. Qui matrimonium a tt en tare aut civilem tantum
actum ponere ausi sunt, vel ipsimet vinculo matrimoni-
al! aut ordine sacro aut votis religiosis etiam simplici-
bus ac temporariis ligati, vel cum muliere iisdem votis
adstricta aut matrimonio valido coniuncta ;
4°. Qui voluntarium homicidium perpetrarunt aut
fetus humani abortum procuraverunt, effectu secuto,
omnesque cooperantes;
5°. Qui seipsos vel alios mutilaverunt vel sibi vitam
adimere tentaverunt;
6°. Clerici medicam vel chirurgicam artem sibi ve-
ti tarn exer cen tes, si exinde mors sequatur ;
7°. Qui actum ordinis, clericis in ordine sacro con-
stitutes reservatum, ponunt, vel eo ordine carentes, vel
ab eius exercitio poena canonica sive personal!, medi-
cinali aut vindicativa, sive locali prohibit!.
Irregularity arising from crime is incurred by
ttCfr. c 4. DUt. 81 (Cone. Nic I, cm. 9).
jle
k ,|rt " riginal from
UNIVERSITY OF WISCONSIN
486 ECCLESIASTICAL THINGS
1. Apostates from the faith, heretics, and schismatics.
These three classes were always barred from holy or-
ders. Remark that the canon mentions only actual apos-
tates, etc., and that can. 986 determines the extent of
this crime.
2. Whoever has allowed himself in any way to be bap-
tised by non-Catholics, except in case of extreme neces-
sity. This cause of irregularity, which is now consider-
ably modified, was formerly called abusus baptismu The
text says siverunt, who have permitted themselves, —
which supposes that they were at least aware of the non-
Catholic character of the Baptism. Therefore we may
safely say that adults only are here to be understood
But the word " adults " must be interpreted according
to can. 745, § 2, n. 2, which says that with regard to
baptism all those are called adults who have attained the
use of reason.80 The term siverunt also excludes violent
or fraudulent Baptism administered by a non-Catholic.
The expression non-Catholic includes the members of
every heretical or schismatical sect, ministers as well as
laymen, men and women, vitandi and non-zntandi*1
Quovis modo, in whatever manner, refers to the mode
of baptism, whether it be solemn or private, public or
secret.
Extreme necessity is certainly present where there is
danger of death and no other person than a non-Catholic
is available. But even in that case the danger of per-
version must be absent, or at least very remote.82
3,0 Those who have attempted marriage, or got mar-
ried before the civil court whilst they were bound by
marital ties, or by sacred orders, or by religious, even
BOCfr. c. 3. c. i, q. 4. Eecl.. 1831. p. 107 (P. II. c 5.
ai Wernr, I. c, II, n. 134. P- *9»- Baptu).
S2Ttir«aiiru«.Giraldi, D# Potnit
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 985 487
though only simple or temporary vows, and also those
(otherwise free) who have attempted marriage before the
civil court with a woman bound by the matrimonial tie
or by a religious vow.
This canon, as formulated, is to some extent new,
though similar to the old law regarding bigamia inter-
pretatrva and similitudinaria, which were enumerated
among the irregularities ex defectu. The two classes thus
rendered irregular comprise:
(a) Married men who attempt marriage with another
woman, whether a virgin or a widow, or legally divorced.
The attempt, however, must be serious, and possess the
semblance and figure of marriage. Note that the text
does not require consummation of the marriage." On
the other hand mere concubinage does not constitute ir-
regularity on this score.84
(b) Clergymen in sacris, or religious with simple,
even only temporary, vows, who attempt marriage or to
get married before the civil court. This was called
bigamia similitudinaria, being a carnal marriage S5 con-
tracted after a spiritual espousal. Here, however, a
distinction must be made. Whereas the clergy in sacred
orders and solemnly professed religious cannot validly
contract, but at most attempt a marriage, i.e., have the
civil act performed, those with simple vows may contract
validly, but incur irregularity unless they are dis-
pensed from the simple vows and get married in facie
Ecclesiae. It would be irreconcilable with the discipline
of the Church, who dispenses from simple vows, to hold
that irregularity follows religious who are lawfully dis-
pensed from their vows, or who contract marriage after
88 This wu implied in moat of the 8S Werni, II, p. ioi. justly ob-
ancicnt texts; c. 15, Dist. 34; c. I, serves that the texts ire not suffi*
X, I, a*, ciently clear to eitablith this
84 C. 6, X, I, 21. irregularity.
jle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
488 ECCLESIASTICAL THINGS
the lapse of temporary vows (can. 637). Therefore the
term ligati must be taken in sensu composito, not in
sensu diviso, to use a well-known distinction.
(c) Men who attempt to contract marriage with any
woman who is under religious or marital obligation to
the same extent, i.e., a religious with solemn or simple
vows, as long as these bind, or a married woman, as long
as the marital tie has not been duly dissolved. We say
men, not clergymen, or religious, or married men, but
men who are otherwise free to marry. This regula-
tion was made for the preservation and honor of the
sacred ministry no less than for that of the religious and
the married state. Here, too, the old idea of similitudi-
narian bigamy may be traced.
4.0 Those who have committed voluntary homicide
or procured the abortion of a human fetus, if these acts
•were effective; also all who have cooperated in these
crimes.
The Church has always had a special horror of homi-
cide 80 and crimes of a similar nature Our canon men-
tions two kinds, vis.:
(a) Voluntary homicide, which is a morally imput-
able action resulting in the death of a man. This defini-
tion includes within its scope all who, either personally
or by command, kill another human being. Morally
imputable means that the act was committed with de-
liberation and for a reason which cannot stand before the
court of conscience.37 Hence a mere accidental killing
(homicidium casuale) cannot be imputed to the human
agent. If a boy awkwardly handles a shotgun, which
goes off and kills his sister, the boy is not irregular.
3S
»aCfr. X, V, 10-ia; cc. 36 «., 88 S. C. C, July 3. 1677 (A**.
Dirt. 50; Gasparri, J. c, n. 405 ff. BccL, XIII, 134); cfr. c 48, $1,
87 Ce. a, j. 10. X, V, is; c. 3, 6*. Dirt. 50.
V. 4.
ioi >gle
% ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 985
489
-
But if one inflicts a wound with a knife, and the injured
person dies from the effects of that wound, homicide must
be imputed, because death immediately resulted from an
illicit and unjust act, even though the intention of killing
was absent.38 If a man kills another in self-defence, if
he neither intended the other's death nor could ward it
off by any other expedient, he does not incur irregularity.
However, since there is danger of excesses being com-
mitted in self-defense (cum excessu modcraminis in-
culpatae txitelae), provisional dispensation must be asked
for in such cases. This is more readily granted if the
assault was not provoked and no other way of escape was
open.40 But revengeful killing, although provoked by
the assailant, would hardly be considered worthy of a dis-
pensation. Irregularity is also incurred by knowingly
and unnecessarily performing a dangerous action or en-
gaging in a perilous amusement which results in the death
of another.41
(b) Those wrho perform an abortion on a human being
incur irregularity, provided, of course, the act is com-
mitted, not accidentally or unawares, but intentionally or
through grievous culpability, even though by accident.48
The aborted fetus must be a fetus humanus, and,
as is generally added, animatus, i. e., a living human fetus.
We were surprised to see no reference, among Card. Gas-
89 S. C. C, May 21, 1763 (Richter,
Trid., p. 92 f. n. 2). A passage
reads: " Homicidium volunlarium
non est solum, quando occidens ex-
plicit* vult occidere, ted eliam
quando eius voluntas tendit in turn
mctum, ex quo per se ac immediate
mors sequitur, non per occidens, uti
contingit in to, qui ilium percutit,
volent ri iniuriam irroporr, ltd non
occidere; si enim ex percussio»e
mors sequatur, dicitur homicida
voluntarius, cum voluntas Per-
cutientis feratur in percussionem, tt
in omne id quod immediate fuit see-
utunu"
*o S. C. C, March u, 1763; May
18, 1726; Aug. 6, 1808 (Richter,
p. 92, nn. 6, 8, 9)*
41 S. C. C, Sept. 24, 1718; April
19. 1 738 (Richter /. c, nn. 7, 10).
42 Sixtu» V. " EHraenatum," Oct.
29, 1588. 9 2-
jle
Original from
UNIVERSITY OF Vi-'ISCONSI
490 ECCLESIASTICAL THINGS
parri's quotations, to the Constitution of Gregory XIV,
" Sedcs Apostolica,'* of May 31, 1591, which restricted
irregularity and penalties to the fetus animatus, as the old
law had it.43 However, said Constitution is quoted under
can. 2350, § 1. We believe that the unanimous teaching
of the school should not be set aside, especially since the
wording fetus humanus can only signify a living fetus.
Animation, as stated before, takes place within the first
week after conception.44 Theologians as well as canon-
ists admit that the old theory concerning animation may
still be held as far as the incurring of penalties and ir-
regularities is concerned. This theory is that between the
conception and the animation of a male fetus forty days,
and of a female fetus, eighty days elapse. As long as no
authentic declaration has been issued, the strict interpre-
tation applied to penal laws may be followed here, and
the period of forty, respectively eighty days be ad-
mitted.48 At any rate, we cannot scientifically speak of
a human fetus before the lapse of six days after concep-
tion.
(c) Efiectu secuto means that death must have actually
resulted from the act of killing or abortion, because
there must be a connection between cause and effect.
(d) The cooperantes are those who formally, not merely
in a material way, command, counsel or assist in the act
of homicide or abortion. The cooperation must, there-
fore, be deliberate and external, and death must be fore-
seen. The excuse that he did not intend to kill would not
free anyone from the guilt of cooperation if his action
49 C. 3, X, V, la (quoted by Card. from four hours to six day* until
Gasparri). segmentation is complete, and only
44 Cfr. coil. 746 f. We cannot ac- aiter six days the embryo becomes
cept E«chbach's assertion (Disp. a fetus.
Pkys.TheoL, p. 192) that there U 45 Cfr. c 12, X, V, u; Wernx,
no distinction between conception Ir, n. 147. P. ao8.
and animation; for it talces at least
i ' /*"" ^,v<-tL> Originalfrorn
'le
UNIVERSITY OF WISCONSIN
CANON 985 491
a
a
was such that he could have foreseen that it would cause
death. But the cooperantes incur irregularity only if their
cooperation was efficacious, f. c, if it really helped to bring
about the death of the victim.** Physicians or druggists
who give or sell medicine for the purpose of causing
abortion are cooperatores, and in an even higher degree
surgeons who perform an operation solely for that pur-
pose. A midwife, husband, or father are guilty of co-
operation if they give poison or strong medicine to a
pregnant woman or beat or burden her so as to cause
abortion.47 On the other hand, the manufacture and sale
of contraceptives, though criminal, does not induce irregu-
larity. If several persons would plot against the life of
another, but only one would actually kill him, all would
be irregular if it were unknown who was the murderer.*8
5. Those zvho have mutilated themselves or others or
have attempted suicide. "By mutilation authors generally
understand the cutting off of a member which has a spe-
cific function to perform in the human body, e. g., the
nose, or an eye, or an ear, or a hand, or a foot. Hence
it would not be mutilation to cut off a finger, or a
knuckle, or to knock out a tooth.*9 By self-mutilation is
here understood the castratio sui ipsius, which was so se-
verely reprimanded in Origen.80 But the term seipsos
must not be pressed, as if irregularity would be incurred
only if a person actually performed the operation on him-
self. To have it done by a physician is just as imputable,
nor does it matter for what motive one perpetrates this
foolish act. The " religious zeal " that inspires such an
Q
|M
4« Rciftenstuel, V, tit. ia, nn. 27 operation performed for the purpose;
B. ; cfr. can. 3*09. of preventing pregnancy does not
4T Sixtus V, " Effraenalum," Oct. induce irregularity.
3- 1588, i 3. « ReifTenstuel, V, 12, n. 55 *•
48 C. s. X. V. ia; can. mil 2231: 80 C. 7. Dist. ss (Cone. Nic. /.,
Wernz 11, a. 147, p. 209. An c. 1) ; c. 4 f., Dist. 55; c. 4, X, I. ao.
ioi >gle
4*^ ^ -. %\s* Original from
UNIVERSITY OF WISCONSIN
492 ECCLESIASTICAL THINGS
act is deleterious. Yet we believe, in view of can. 986,
which excuses from irregularity 61 when no mortal sin is
involved, one who has castrated himself might de facto
be declared immune from irregularity. But provisional
dispensation would certainly be advisable.
-
As to attempts to commit suicide no comment is re-
quired except what we have just said in connection with
can. 986. An attempt at suicide committed in an abnor-
mal mental or nervous state, would be unimputable, and
therefore would not involve irregularity.
It may have surprised the reader that not a word is
said about soldiers, especially clergymen who served as
such in the recent war. A decree of the S. C. Con-
sistorialis, Oct 25, 1918 (" Redeuntibus"), says the de-
fectus lenitatis attaches to clergymen who were com-
pelled to kill and mutilate," but the Ordinary may grant
a dispensation from it, unless the clergymen volunteered
for active service in the war, in which case dispensation
is reserved to the Holy See. By volunteering for mili-
tary service these clerics have tacitly also resigned their
office or benefice. The decree draws no distinction be-
tween just and unjust, offensive and defensive war.
Formerly M it was generally thought that in an unjust war
all soldiers, laymen as well as clerics, were irregular, if
any one was killed. However, common soldiers are not
easily persuaded that they are fighting in an unjust cause,
and who is to be the impartial judge in such a case? It
is therefore more reasonable to say that neither lay sol-
diers nor clergymen soldiers incur irregularity by the
mere fact of fighting and killing if compelled to do so by
BlFormcrly thi« mction induced ir- 63 A. Ap. S., X. 481 ff.
regularity ex defectu, and it may BS Cfr. Benedict XIV, InsHtut.,
■till involve it, if the two reasons 101, 0. 16 f.
bold; but castratio could not be
■tyled such a defect.
►ogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 985 493
St
o>
the public authorities, but a general dispensatio ad caute-
lam should be asked for or given as is done in the afore-
said decree. Can. 141 is not to be neglected, however.
6. Clerics who practice medicine or surgery, both of
which are forbidden to them, if death results from their
practice.
Can. 139, § 2, requires an Apostolic indult for the exer-
cise of the medical profession by clerics. If they prac-
tice without an indult, they transgress the law of the
Church, and therefore act illicitly. Hence if they kill
any one, even accidentally and after due preparation, they
become irregular.8* Clerics who have obtained an Apo-
stolic indult cannot be said to practice unlawfully, and
therefore, even if death should occur at their hands, no
irregularity would follow.
7. Those who, without having received an order, per-
form an act which is reserved to clerics in higher orders,
or who, without having received an order, or having been
forbidden to exercise an order duly received, either by
a canonical sentence inflicted on their person by a censure
or vindictive penalty, or on the place where they exer-
cise it.
This number comprises the two irregularities called
abusus ordinis and ex capite violatae censurae.
a) Abuse of orders is here strictly limited to higher
orders, from subdeaconship onward. Hence if a layman
exercises one of the minor orders, he is not now 55 irregu-
lar. A lector who exercises the office of acolyte is not
irregular, even though he has not yet received the aco-
lytate." On the other hand if a layman, or a cleric
in minor orders, would knowingly, solemnly, and seri-
"-.
o«Cfr. c. 7i X, I, i,i. c 19, X, oa Formerly he was; c. i, X, V,
V, la. 28; G as pa it i, /. c, n. ajj f.
50 Cfr. cc. i, 2, X, V, 28.
I Original from
1L UNIVERSITY OF WISCONSIN
494 ECCLESIASTICAL THINGS
ously act as subdeacon; or if a subdeacon not yet or-
dained to the diaconate would act as deacon, they would
incur irregularity. To serve as subdeacon without the
maniple, or to serve as deacon at Mass without the stole,
would not incur irregularity, because these vestments are
the proper insignia of the respective orders.5*
The actus ordinis is an act of a higher order. Such
acts ( priestly functions) are forbidden to clergymen in
lower orders. Thus saying Mass is a strictly sacerdotal
function. So is hearing confession, though it also in-
volves an act of jurisdiction, and therefore a cleric not
yet ordained a priest would be irregular if he were to
attempt it.08 A deacon solemnly baptizing without per-
mission from the Ordinary or pastor would not be ir-
regular."
b) Irregular by violation of a censure or vindictive
penalty are those who are personally under a canonical
sentence. Censures are : excommunication, suspension
from orders, and personal interdict. However, suspen-
sion may also be inflicted as a vindictive penalty.-0 But
even in that case it must be declared as a suspension from
orders, or as total suspension, L e., suspension simply so-
called.61 An interdict may affect personally a clergy-
man in sacris, inasmuch as this censure follows him every-
where. Or again the interdict may be local, affecting a
certain territory only, and persons only indirectly. If
the interdict is local only, can. 2271 f. must be consulted.
If a local interdict permits the celebration of divine serv-
ices, the priest who says Mass in accordance with said
canons would certainly not be irregular, whereas a per-
01 How such clerics in minor or- so Casparrt, /. c, n. 3391 Wcrnx,
ders should conduct themselves J. ft, n. 137, p. 198
when acting as ministers of solemn 00 Can. 2298.
Mass, see can. 1306. «l Can. 2278, | 2.
08 C. i, X, V, 28; Layman, I c.
oogle
k .,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 986 495
St
o>
sonal interdict forbids the celebration of the divine office
in any and every place. If, then, a clergyman in sacris
thus censured or punished would seriously and solemnly
exercise his order, he would incur irregularity.82 This
is also true if he were suspended ex informata conscientia
-
and would exercise an act of orders while an appeal was
pending, because such an appeal is permissible only in
devolutivo*3 Rut if a clergyman suspended in sacris,
for instance, a deacon, would be ordained to the priest-
hood while suspended, he would not become irregular."
HOW IRREGULARITY EX DELICTO IS INCURRED
Can. 986
Haec delicta irregularitatem non pariunt, nisi fuerint
gravia peccata. post baptismum perpetrata, salvo prae-
scripto can. 985, n. 2, itemque externa, sive publica sive
occulta.
These crimes do not produce irregularity, unless they
are of the nature of a grievous sin committed after Bap-
tism, and external, either public or occult, with due re-
gard, of course, to can. 985, n. 2.
Hence no irregularity is incurred if the acts enu-
merated in can. 985 do not amount to a grievous sin,M as
defined by theologians. For irregularity -being a very
serious, and if not a direct, at least an indirect penalty,
the legislator naturally supposes a grievous fault. The
text adds, "committed after Baptism/' because Baptism
wipes out every crime and sin.6a The text makes an ex-
«2Cfr. c. 1, 6', II, 14; cc. 1, 18, 6BC. i, Dist. 81 (S. Aug.):
20, 6°, V, 11; Gasparri, /. c, n. "crimtn est peccatum grave, acc%-
356 IT. rati one it damnation* digniiei-
63 S. C. P. F., Oct 20, 1884 mum."
tColl., n. 1628). 00 C. 6o, Dirt. 50-
04 Layman, /. c, c. 3, n- 5.
§le
k ,|,, Original from
UNIVERSITY OF WISCONSIN
-
■
pi
P
"-.
496 ECCLESIASTICAL THINGS
ception in favor of Baptism, which one may have admin-
istered to himself by a non-Catholic. But even this sup-
poses a grievous fault, though naturally it could not be
wiped out by Baptism, which has not yet been received.
The text further says : an external sin. Every crime
is by its very nature external ; i. e., deserving of or liable
to accusation. Hence one may be an apostate, a heretic,
a schismatic and sin grievously in his heart, — as long as
he does not manifest his apostasy or heresy by an external
act, he is not irregular. It is not required, however, that
the crime be public, i. e., liable to be proved in an eccle-
siastical court; even an occult crime suffices.87
Can. 987
Sunt simpliciter impediti :
z°. Filii acatholicorum, quandiu parentes in suo
errore permanent;
20. Viri uxorem habentes;
3°. Qui officiumvel administrationem gerunt clericis
vetitam cuius rationes reddere debeant, donee, de-
posito officio et administratione atque rationibus reddi-
tis, liber i facti sint ;
4°. Scrvi servitute propxie dicta ante acceptam li-
bertatem ;
5°. Qui ad ordinarium militare servitium civili lege
adstringuntur, antequam illud expleverint ;
6°. Neophyti, donee, iudicio Ordinarii, sufficienter
probati fuerint;
70. Qui infamia facti laborant, dum ipsa, iudicio Or-
dinarii, perdurat.
07 The reason lies in the require- public welfare of the Church; be-
ment of personal worthiness of the sides, an external act is liable to
minister, which indirectly affects the become known.
oogle
f^ ^ v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 987 497
a
The following persons are incapable of receiving
orders :
i.° The sons of non-Catholics, as long as their parents
remain in their error. This was formerly called the
dcfectus fidei conXrntatae and comprised all male de-
scendants of the paternal line to the second degree, and of
the maternal line to the first degree. This was the Roman
practice and obtained also in Germany and other coun-
tries where the prevailing religion was sectarian.88 The
Code, however, limits this impediment, which no longer
involves irregularity, to the first degree, i. e., to the par-
ents. If the parents have become converted to the Catho-
lic faith at the time when their son is to be ordained, no
impediment prevents him from receiving orders. But it
certainly is required that both be converts, for the name
parents comprises father and mother.68*
The question may arise: What if the parents died as
heretics before the ordination of their son? It would
seem that the impediment still exists, because a decision
of the Holy Office says: "and the sons of heretics who
remain in heresy or who died in heresy." OT But this very
decision permits us to adopt a milder view. It, like our
Jext, says permanent, i. c., remaining or enduring until
the time of the ordination. But when the parents are
dead, their error cannot be said to remain. Besides the
danger of perversion or returning to heresy by reason of
filial attachment to the parents is precluded by their de-
cease.
Q
|M
«8 Clement VIII, ad ep. Pac„ «8a Thia is now certain by decree
Oct. 6, 1593 (Richter, Trid., p. 339, of Oct. 16, 1919 {A. Ap. S., XI,
n. a); S. OX, Dec. 4. 1800: March 478).
6, 1891; Feb. 3. 1898, ad 2 et 3 00 S. O., Dec. 4. 1890 (Coil, n.
(Coll. P. F., no. 1744, 1748, 1990). 1744)-
, ,1,., Original from
UNIVERSITY OF WISCONSIN
gle
■
498 ECCLESIASTICAL THINGS
Non-Catholic means any sect, Christian, pagan, or Jew-
ish."
2.0 A man who has a ivife cannot embrace the clerical
state while the wife lives. We say, the clerical state,
because a married man may not even receive the tonsure,
unless his wife consents.71 This impediment, which is
part of the former irregularity ex defectu libertatis, exists
only in the Latin Church and is connected with the law of
celibacy.72
The consent of the wife must be freely given, and she
must, moreover, herself enter the religious state, if she is
not yet advanced in years, and make profession there, to
enable the husband to receive higher orders." As ton-
sure and minor orders should not be conferred unless the
subject intends to ascend to higher orders, it may be said,
broadly, that the wife must make religious profession if
her husband wishes to enter the clerical state with her
express consent. But if she is of advanced age, say past
fifty, she may remain in the world, provided she takes the
simple vow of chastity, and provided also the husband is
not suspected of incontinency.74 The Holy Office refused
to dispense a man of thirty-six who appeared to have all
the necessary qualifications for the clerical state because
his wife could not enter the religious state, there being
no convent in that country.76 The Holy See must de-
clare whether the conditions are all verified in any given
case, and if the decision is favorable, the wife must make
the simple vow of chastity into the hands of the Ordinary
or his delegate.78
TOC. I, Dirt. 48; c. 10, Dist. 61; T4 Benedict XIV, De Syn. Diotc.,
S. C. C, Jin. as. 1740. etc. XIII. it. nn. 14 ff.
(Richter, Trid., p. 339, nn. 3 ff.). 75 S. O. Feb. it, 1857 «d 4
Ti C. 4, 60, I, 9. {ColU P. F., n. 1057).
T2 Cfr. c 1, Dirt. 77- 7« Benedict XIV, L c, n. 16.
ts C. 5. X, III, 32 mention! onlj
higher orders.
^ £ " -» v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 987 499
■
□
3.0 Those who are engaged in an office or administra-
tion forbidden to clerics, and of which they have to render
an account, until they have given up the office and admin-
istration, settled their accounts, and thus become free.
This, too, is part of the former irregularity ex defectu
libertatis. A chapter " of the Decree of Gratian men-
tions the curiales, i. e., officers or rather employees of the
various departments of civil administration who were en-
gaged by the magistrates. To this class belonged also
the mayors of small towns, who were responsible to the
fiscus or State treasury. These Emperor Mauritius for-
bade to become clerics, and although Gregory I opposed the
law on principle, he approved it, as far as rendering ac-
counts was concerned. This is the idea underlying our
canon ; for the rest we refer to can. 139.78
4.0 Slaves, properly so-called, before they are given
their liberty. This belongs to the same defectus liberta-
tis. Regarding slaves in the proper sense, *. e., men who
belong bodily to a master, the Church ordained that
they should not enter the clerical state, partly because
their admission would lower its dignity, and partly be-
cause they were not their own masters."
5.0 Men bound to common military service by the civil
law, before they arc fully discharged. This means all
who are compelled by the law of the land to do military
service.80 Leave of absence, no matter whether for a
definite or an indefinite time, does not free one from the
military obligation. But if one is unconditionally dis-
charged, his military duties may be regarded as " fully
discharged," even though it is possible that the State will
-
TTC. un.. Dirt. 53 (Greg. I): c. 79Cfr. Dirt. 54, pusim; can.
3, Dirt. 54. 1083, I a and our commentary on
T8 Vol. II, p. 8* ff. ; tec cc. a, 4. the same.
X, III, 50. soCfr. Vol. II, p. 64 f.; p. 94.
of our commentary.
Q
.'le
£ * ^ ^ ,|„ Original fro ni
UNIVERSITY OF WISCONSIN
500 ECCLESIASTICAL THINGS
a
call hhn again in case of necessity. The text of our canon
certainly presumes that a soldier was discharged ; extraor-
dinary cases are not affected by this law.
6.° Neophytes, until the bishop thinks their faith suf-
ficiently tried. The early ecclesiastical laws demanded a
long and severe trial of neophytes, to prove their con-
stancy and faith.81
Formerly the so-called clinici were also excluded from
the clerical state. These were converts who delayed the
reception of Baptism until they were sick." "Our canon
leaves it to the discretion of the bishop to try converts
and obtain moral certainty as to their sincerity and stead-
fastness.
D
J.° Those who suffer from infamy (not by law but)
in fact, as long as this blemish remains on the person
according to the judgment of the Ordinary. Infamy is
here taken in a wider sense than infamia iuris, in can.
984, 50, and signifies the loss of honor or the good repu-
tation which men enjoy in the estimation of their fellows.
The term may also signify the legal status of a person
convicted of an infamous crime. This supposes a juridi-
cal sentence, or at least a crime branded as infamous by
law. There are crimes which, though they do not entail
legal infamy, are regarded by honest people generally as
infamous.88 Besides, there is a popular conviction that
certain professions are mean or unbecoming to the clerical
state. This is what was called the levis nota. Thus in
former times actors (histriones) were branded with this
stain."4
This infamy arising from levis nota cannot be meant in
Bi Cfr. 1, Tim. Ill, 6; c. r, M Cf r. c. 17, c. 6. q. I, which
DisL 48. would include any sin against the
82 Cfr. Benedict XIV, De Sym. Decalogue.
Dioec, XII, 6, 7; Armcllini, Lesion* 8« Cfr. cc. 15, 16, X, III, r.
del' Archtologia Crist, p. 290.
■ -
>Ie
f ■ J , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 988 501
our canon, as it was never looked upon as an irregularity
in the proper sense, but rather as incompatible with the
clerical state. Infamy must therefore be based upon a
personal fact which degrades the perpetrator, and in-
cludes in its range those whom the civil law declares in-
famous,85 or who have lost their civic rights. Infantia
facti, says our Code, is contracted on account of a crime
committed or because of immoral conduct which has de-
prived one of his good name among the faithful. This
stain can only be removed by enduring amendment by
which the lost reputation is re-established. When this is
the case must be left to the judgment of the Ordinary.80
But it may be added that infamy afflicting the parents or
relatives of an ordinand does not affect the ordinand
himself. Thus, if the father had been condemned to the
galleys or capital punishment, the son would not be
irregular on that account.87
ignorance no excuse
Can. 988
Ignorantia irregularitatum sive ex delicto sive ex
defectu atque impedimentorum ab eisdem non excusat.
Ignorance of irregularities, whether resulting from
defect or crime, and of impediments, does not excuse
from incurring them.
Some authors held that certain irregularities were not
incurred if one was ignorant of them. Thus it was main-
tained that the violation of the censure (can. 985, 7.0)
would not render one irregular who had no knowledge of
a
c
85 C 2, c. 6, q. 1: " omnws vno 87 S. C. C, Aug. II, I7S9
imfames esse dicimus, quos ttges (Richler, 7 r id., p. 340, n. 8);
satcuii infames appellant," can. 3293, ! 4.
88 Cfr. can. 2293, 2293.
oogle
, ,|,, Original from
UNIVERSITY OF WISCONSIN
-
■
pi
502 ECCLESIASTICAL THINGS
the same.88 This may be true in the court of conscience.
But a logical application of the principle that irregulari-
ties-are not properly called penalties would really seem to
exclude this opinion. All ir regular rties are directly in-
tended to safeguard the dignity and reveremre due to the
sacred ministry, and therefore the exterior fact, 1. e., the
quality of the minister as it ought to be in the face of the
Church, is considered, not his internal disposition. The
Code therefore says that ignorance, whether culpable or
inculpable, does not excuse from incurring the irregulari-
ties or contracting the canonical impediments. However,
it must be added that oan. 986 requires a grievous sin to
induce an irregularity ex delicto. Therefore infants or
those who are not responsible for their acts cannot incur
irregularity from crime.88
multiplied irregularities and impediments
Can. 989
Irregularitates et impedimenta multiplicantur ex
diversis eorundem causis, non autem ex rcpetitione
eiusdem causae, nisi agatur de irregularitate ex homi-
cidio voluntario.
Irregularities and impediments are multiplied if their
causes are different, but not by a repetition of the same
cause, except in case of irregularity from voluntary homi-
cide.
The fundamental reason here again is the dignity of the
sacred ministry. If it is jeopardized or lost, the loss can-
not be undone. The defect or crime may grow by de-
grees. A deliberate homicide increases the number of
88 Thesauras-GiraldT, De Poenis De Censuris, diap. 40, sect. 5. n. 9
Bed., P. I, c. 15 (cd. 1831, p. 15). i.\ Gasparri, !. c, n. ->■_-. Wcrnx,
89 Ibid., c. 17, p. 18; Suarez, /. c, II, n. 100, p. 129.
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
"
CANON 989 503
irregularities because of the peculiar horridness of the
crime. Hence if one has committed two homicides or
two or more abortions, he has incurred as many irregu-
larities as he has committed crimes.
The cause here understood is the causa tnaterialis, 1. e.t
the occasion or causa proximo 90 of irregularity. This
causa materialis or proxima is either a defect or a crime
upon which the law has placed the penalty of irregularity.
Such causes may differ either specifically or numerically.
Thus one who is irregular by reason of illegitimacy may
also become irregular on account of bigamy; one who is
irregular because of apostacy may also contract irregu-
larity by committing homicide ; for all these are specifically
different causes. The numerical difference consists in
the repetition of the same act, for instance, if a judge
inflicts the death sentence more than once, and
thereby, as it were, multiplies or increases the irregu-
larity. Here the Code adopts a different and more logi-
cal view than some canonists 0I by ruling that, with the
exception of deliberately committed homicide, no irregu-
larity is multiplied by repeated acts of the same species.
In other words, the Code admits specific but rejects nu-
merical multiplication, with the exception of homicide.
Nevertheless those who are corpore vitiati (thus at least
it seems to us), suffer from as many irregularities as there
are defects, for instance, one deprived of an arm and
deaf and blind is irregular for three separate and distinct
causes. Therefore, these defects must all be mentioned
in the petition for a dispensation, as per can. 991.
to Collet, De Irregularilalibus, in Paris i86i, XXIII, 363 seems to
Migne, Cursus Thiol., Vol. XVII, admit multiplication analogously to
col. 199. suspension.
91 Suarez, J. c, sect. 7, n. 5, ed.
jle
£ * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
504 ECCLESIASTICAL THINGS
the ordinary's dispensing power
Can. 990
§ 1. Licet Or dinar iis per sc vel per alium suos sub-
ditos dispensare ab irregularitatibus omnibus ex de-
licto occulto provenientibus, ea excepta de qua in can.
985, n. 4 aliave deducta ad forum iudiciale.
§ 2. Eadem facultas competit cuilibet confessario in
casibus occultis urgentioribus in quibus Ordinarius
adiri nequeat et periculum immineat gravis damni vel
infamiae, sed ad hoc dumtaxat ut poenitens ordines
iam susceptos exercere licite valeat
This canon is a repetition of chapter 6, Liceat, Sess. 24,
of the Council of Trent. The meaning is that Ordinaries,
either by themselves or through delegates, may dispense
from all irregularities arising from an occult crime, except
the one mentioned in can. 985, n. 4, or any other brought
before the ecclesiastical court.
a) The Ordinaries here mentioned arc all those named
in can. 198, including the higher superiors of exempt
clerical institutes, who, of course, can make use of this
power only in favor of their subjects. The special privi-
leges accorded by various Pontiffs to diverse orders are
not included in this power, but neither are they declared
void by our canon. Pius V granted considerable facul-
ties to the Theatines" and the Cassinese Congregation
of the O.S.B./" enabling the superiors to dispense even
from homicide. This latter faculty, however, was valid
only for the court of conscience. It would certainly not
be advisable to stretch the privilege so as to include homi-
cide. Besides, most authors exempt from these privi-
W" Ad immarcescibiUm," Feb. 6. M " Dun id CongretBtumtm,"
1567. June is, 1571-
>Ie
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 990 505
leges dispensation from a notable bodily or mental defect.
Furthermore this privilege would not avail for removing
the inability for prelacies.'
Our text also says that Ordinaries who are entitled to
dispense may either do so themselves or delegate some
one to dispense in their name. For this is ordinary juris-
diction, which may be delegated to others, either habitu-
ally or for individual cases.08 Therefore the Ordinary,
the Vicar-General and the Vicar-Capitular (who needs no
special faculties from the chapter)60 enjoy the power of
dispensing from these irregularities and may delegate an-
other priest, either secular or regular, to impart it.
b) The canon mentions only irregularities arising from
an occult crime. An occult crime, as stated elsewhere, is
one which cannot be proved in an ecclesiastical court.
The action of a civil court makes no difference. One
declared guilty by a civil court but discharged as inno-
cent by the ecclesiastical court would not be irregular and
therefore would need no dispensation.97 All irregulari-
ties arising from an occult crime may be dispensed from ;
this includes heresy, as to which a different opinion pre-
vailed before the promulgation of the Code.88
c) Excepted are homicide and abortion, as explained
under can. 985, n. 4, and any other irregularity from an
occult crime which has been brought before the ecclesi-
astical court (dedttcta ad forum iudiciale, or ad forum
contentiosum, as the Tridentine Council has it). An ec-
clesiastical trial begins when the summons (citatio) is
duly made or the parties of their own accord appear be-
B4 Cfr. Ballerini-Palniieri, Opus »t S. C. C, Jan. 25, 1726 (Rfchter,
Theol. MoraL, Vol. VII, p. 341; I. c, p. 93, n. 4)-
Piatns M., Praslectiones Juris MS. C. C, June 18, 1796; Dec.
RepuL, ed. a. Vol. I, p. 578. 4. 163a (Richter, L c. p. 339. *• tJ'J
■B Can. 199, I 1. Gaaparri, /. c, n. *JO,
9* Tfans is S. C. C, Dec. 4, 1632
(Richter, Trid.t p. 338, a. 1).
>Ie
J ^ Original fro ni
UNIVERSITY OF WISCONSIN
-'
506 ECCLESIASTICAL THINGS
fore the tribunal." Mere accusation or denunciation is
not sufficient to constitute a casus deductus ad forum
iudiciale. But as soon as the ecclesiastical judge has
properly issued a summons, the matter has " taken a legal
turn/7 and after that the Ordinary can no longer dispense
from an irregularity arising from the crime which now
forms the matter of an ecclesiastical trial. With the ex-
ception of these cases, however, Ordinaries may dispense
their subjects from said irregularities, not only at home,
but anywhere.
§ 2 extends this same faculty to all confessors, who con-
sequently can absolve penitents in all occult cases of a very
urgent nature, when the Ordinary cannot be approached
and there is danger of a great loss or infamy. But the
dispensation is valid only in that it enables the penitent
to exercise an order already received. Notice the term,
eadem facultas, which doubtless means that the confessors
are subject to the same restrictions as the Ordinary, to
wit, that this faculty cannot be applied in case of deliberate
homicide and abortion, or of a crime that has been brought
before the ecclesiastical tribunal. What adire Ordi-
narium signifies has been explained elsewhere.1 It is to
be understood of the usual and safe way of communica-
tion by letter, messenger or personal call. A grave
damnum may be either material or spiritual, for instance,
a pingue stipendium needed for support, or the oppor-
tunity of gaining a plenary indulgence, or overcoming a
great temptation, or the chance of consulting a wise and
enlightened confessor. Infamia is loss of reputation,
which might be incurred by a pastor or curate if he could
not say Mass on a festival day or a day appointed. Note
that the canon does not require a recursus to the Ordi-
nary or to the Holy See after dispensation has been
99 Can. 1725. I See Vol. V, p. 108. p. 2Q4.
§le
X /• * ^ v ,|,, Original from
UNIVERSITY OF WISCONSIN
■
"■
CANON 991 507
granted.3 But this holds good only when there is ques-
tion of exercising an order already received, not for
ascending to a higher one.
petitions for dispensation
Can. 991
§ 1. In precibus pro irregularitatum ac impedimen-
torum dispensation^ omnes irrcgularitates ac impedi-
menta indicanda sunt; secus dispensatio gen era lis
valebit quidem etiam pro reticitis bona fide, iis cxceptis
quae in can. 990, § 1 excipiuntur, non autem pro reti-
citis in mala fide.
§ 2. Si agatur de irregularitate ex homicidio volun-
tario, etiam numerus delictorum exprimendus est sub
poena nullitatis concedendae dispensationis.
§ 3. Dispensatio gencralis ad ordines valet pro or-
dinibus quoque maioribus; et dispensatus potest obti-
nere beneficia non consistorialia etiam curata, sed
renuntiari nequit S. R. E. Cardinalis, Episcopus, Abbas
vel Praelatus nullius, Superior maior in religione cleri-
cali exempta.
§4. Dispensatio, in foro interno non sacramentali
concessa, scripto consignetur; et de ca in secreto Cu-
riae libro constare debet.
§ 1 rules that in petitions for dispensation from irregu-
larities and impediments, all existing irregularities and
impediments must be mentioned; else the general dispen-
sation has no effect for those concealed if the conceal-
ment was made in bad faith, but only for such as have
been concealed in good faith, except, however, homicide,
z Neither was there a condition attached to the decision of the S. O.,
of Sept. 6, 1909 {A. Ap. S.. I, 677).
jle
v ,|rt Original from
UNIVERSITY OF WISCONSIN
508 ECCLESIASTICAL THINGS
a
abortion, and other crimes brought before the ecclesi-
astical court.
The bodily defects must be mentioned as distinctly as
the case permits, and especially must illegitimacy be ex-
plained as to its cause (naturales, spurii, sacrilegi) be-
cause the S. Congregation deals more severely with the
latter than with the merely naturales. If a trial has taken
place before the master of ceremonies, this fact, together
with the judgment or opinion of the bishop, should be
mentioned in the petition. But the dispensation proper
is granted by the Holy See.3
If there is more than one irregularity all must be men-
tioned, and the rescript extends only to those expressly
mentioned, unless a bona fide omission was made, in which
latter case the irregularity which was not mentioned or
forgotten is included in the dispensation, with the excep-
tion, however, of homicide and abortion or some other
crime for which one was summoned before the ecclesias-
tical court. A wilful or deliberate omission of an irregu-
larity would affect the rescript in so far as the concealed
irregularity would remain, and consequently another dis-
pensation would be required.
§ 2 requires that the number of homicides be mentioned
under penalty of nullity of the rescript. Whether this af-
fects also the number of abortions is not quite certain.
The Roman practice includes abortion.4 When the pre-
cise number cannot be given, an approximate one should
be set down, or the plural number in general.
§ 3. A general dispensation is valid also for higher
orders, and the one thus dispensed may obtain benefices
which are not usually conferred in consistories, but he
a Cfr. Pyrrhus Corradus, Praxis * Idem, 1. V, c. 1 (ed. eit., p.
Dispensotiontm Apostolicanm, I. 387).
Ill, c 1; c. 6 (Mignc, Curms
TheoL. L XIX. p. 123, 161).
'■-.
oogle
% .J,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 991 509
cannot be promoted to the cardinalate, the episcopate, an
abbacy or prelacy nullius, nor to the office of higher su-
perior in an exempt clerical institute.
A general dispensation is one granted for all orders and
benefices or favors to be obtained, whereas a particular
dispensation extends only to certain benefices or orders.6
Thus a dispensation granted from the impediment of
defectus natalium ob haeresim parentum (can. 987, n. 1)
for tonsure and minor orders also avails for major or-
ders,fl and for the offices or benefices of pastor, curate,
and canon. But a consistorial benefice, L e., one con-
ferred in a public consistory, cannot be obtained in virtue
of such a general dispensation. This is nothing else but
the application of an old -principle,7 namely, that those
affected with a blemish should not ascend to higher dig-
nities.
§ 4. A dispensation granted in the internal forum but
extrasacramentally, must be given in writing, and the dio-
cesan court should keep a record thereof in a secret book.
This rule is, or may be, of importance in cases where liti-
gation concerning an office or benefice threatens or an
accusation is brought before the ecclesiastical court.
REMARKS ON DISPENSATIONS FROM IRREGULARITIES
c 8
I. The sovereign Pontiff may dispense from all irregu-
larities, but is himself subject to none. The reason is
because all irregularities exist by, and rest upon, positive
ecclesiastical law. Dispensations from irregularities pro
foro externo are granted by the S. Congrcgatio pro Re
Sacramentaria, those for the internal forum by the S.
6 Id., 1. I, c. 3 led. tit., p. ao). 8 Cfr. Collet, De Irregularitatibus
• S. O., Dec. 6, 1906 (Colt. P. F., (Migne, Cursus Thiol., Vol. 17,
n. 2241). coll. 317 IT.); Wernr, /. c, II, n.
1 Cfr. cc. 1, 18, X, I, 17; R*g. 105, p. 123 ff-
Juru 87 in 6*.
>Ie
J ^ Original fro rn
UNIVERSITY OF WISCONSIN
5io
ECCLESIASTICAL THINGS
-
Poenitentiaria. We must add that the Roman Pontiff
alone is competent to grant dispensations, because all ir-
regularities concern the common law of the Church. The
faculties of Ordinaries* formerly granted in virtue of
Form I, art. 2, can no longer be applied for the external
forum ; 10 and those pro foro intcrno are contained in
can. 990. But we believe can. 81 may be lawfully applied
here, provided the three conditions therein set forth are
verified.
2. Some irregularities ex defectu cease if the cause en-
tirely ceases. Thus if a bodily defect is cured or healed,
the irregularity also ceases, because this was set up to
safeguard the dignity of the sacred ministry and insure
the physical ability of performing the sacred functions.
Thus if one's eyesight is restored by an operation, the ir-
regularity ceases ipso facto, and no dispensation is re-
quired. However, if a doubt exists as to the complete-
ness of the cure, or the degree of deformity which may
cause scandal or ridicule, the case must be referred to
Rome, together with the statement of the master of cere-
monies.11 Dispensations are not easily granted if the ap-
plicant uses artificial limbs, even though the danger of
scandal be remote.12 Hence in every case of real doubt
an authentic statement should be obtained from the S.
Congregation.
The irregularities arising from bigamy, infamia iuris,
or defectus lenitatis, can be removed only by dispensation
0 Cfr. Putzer, Comment in Facult.
Apost,, ed. 4, p. 150 ff.
10 S. C. Consist., April 25, 1918.
11 Cfr. S. C. C. June 15, 1878
(A. S. S., Vol. ii, 423). The S. C.
required a photograph in case of a
hunchback, whose size was 1*3 centi-
meters (=5 feet), which 'was con-
sidered sufficient; but the S. G. also
inquired into the moral qualities
which were in favor of the peti-
tioner. Hence the decision " arbitrio
et conjeirntiae episcopi, cum facili-
tate disfensandi et habilitandi or*-
torem ad omncs ordines usque ad
presbytcratum inclusive, facto verba
c*m Stmo,"
12 S. C. C, Dec. 19, 1772; May 6,
i77S: Nov- '8. 1B37 (Richter, p.
340, nn. 17. lS. *»>.
*Ie
Original fro m
UNIVERSITY OF WISCONSIN
CANON 991 511
a
a
proper. However, if the infamia iuris arises from civil
law, it ceases of itself as soon as the civil authority re-
stores the subject to civil or civic rights.
Illegitimacy requires a dispensation, unless, as stated in
the canon, it has been removed by subsequent marriage or
solemn religious profession.
3. Irregularities ex delicto, if of a public nature, can
be dispensed only by the Apostolic See; if occult, can.
990 applies. Clergymen who practice medicine or sur-
gery with an Apostolic indult must abide by the condi-
tions of time, place, or person laid down in the rescript.
If they have extended the faculty beyond the time al-
lowed, a provisional dispensation would be required for
the period during which they practiced medicine unlaw-
fully, even though they are morally certain that they
caused no death.18 In case of a doubtful fact of homi-
cide, 1. e., when a cleric is uncertain whether he or another
was the cause of a homicide, it is the common opinion
of theologians that he must conduct himself as irregular,1*
and therefore abstain from exercising acts of the orders
which he has received and in the meantime apply for a
dispensation.
4. With regard to impediments properly so-called, it is
evident that five of them (nn. 1-5) are conditional, i. e.t
last only as long as the impediment itself. This is clearly
expressed in the wording of the text. Concerning these,
then, the attestation or proof of cessation is sufficient and
no dispensation is needed. The two others depend on the
finding or judgment of the bishop, who is the arbiter in
such cases.
We may add that infamia facti is often removed by
change of domicile combined with a lasting amendment of
conduct.
"-.
18 S. C. C| Dec. 1a, 1761 1* Collet, /. c, p. J15.
(Richtcr, /. c, p. 34a, n. 34)-
I OgW Originalfrom
UNIVERSITY OF WISCONSIN
■
CHAPTER III
PREREQUISITES OF ORDINATION
Can. 992
Omnes turn sacculares turn religiosi ad ordincs
promovendi per se ipsi vel per alios Episcopo aliive qui
Episcopi hac in re vices gerat, suum propositum ante
ordinationem opportuno tempore aperiant.
All who wish to be ordained, seculars as well as reli-
gious, must either themselves or through others manifest
their intention at some opportune time before ordination
to their bishop or whoever holds his place with regard
to ordination.
The Council of Trent1 had ordered that the ordinandi
should present themselves before the bishop one month
before ordination. This rule was enacted so that the
bishop might have time to give orders to the parish priest
to make the public announcements and to select the ex-
aminers. But manifestare propositum may have another
signification, namely, to make sure that the ordinand is
not compelled to embrace the clerical state. The process
is somewhat similar to the exploratio voluntatis required
for female religious and may be called the first of the
three scrutinies which were formerly demanded. The text
says this manifestation of intention may aJso be made to
the one who represents the bishop in the matter of ordi-
nation. In former centuries this was the archdeacon,
1 Sess. 23, c. 5, dt ref.
512
jle
j , Original fro m
UNIVERSITY OF WISCONSIN
—
a
N
Q
CANONS 993-994 5*3
still mentioned in the Pontificale* His place is now taken
by the Vicar General, or in some dioceses by the Chan-
cellor. The Code is not explicit on this point.
TESTIMONIALS
Can. 993
Promovcndi saeculares aut religiosi qui, quod
pertinet ad ordinationem, saecularium iure reguntur,
afferant:
i°. Testimonium ultimae ordinationis aut, si de
prima tonsura agatur, recepti baptismatis et con-
firmationis ;
a°. Testimonium de peractis studiis, pro singulis
ordinibus, ad norman can. 976, requisites ;
3°. Testimonium rector is Scminarii, aut sacerdotis
cui candidatus extra Seminarium commendatus fuerit,
de bonis eiusdem candidati moribus ;
4°. Testimonials litteras Ordinarii loci in quo pro-
movendus tantum temporis moratus est ut canonicum
impedimentum contrahere ibi potuerit;
5°. Testimonials Superioris maioris religiosi, si cui
religioni promovendus adscriptus sit.
Can. 994
§ 1. Tempus quo promovendus potuit canonicum
impedimentum contrahere est, regulariter, pro militi-
bus trimestre, pro aliis semestre post pubertatem ; sed
Episcopus ordinans pro sua prudentia exigere potest
litteras testimoniales etiam ob brevius commorationis
tempus, et ob tempus quoque quod pubertatem
antecessit.
* Cfr. cc. 5. 0. X. I. as, dc off. orchidiacotii.
►ogle
k ,|rt Original from
UNIVERSITY OF WISCONSIN
■
'■-.
514 ECCLESIASTICAL THINGS
§ 2. Si loci Ordinarius neque per se neque per alios
promo vendurn satis noverit, ut testari possit cum, tem-
pore quo in suo territor io moratus est, nullum canoni-
cum impedimentum contraxisse, aut si promovendus
per tot dioeceses vagatus sit ut impossibile vel nimis
difficile evadat omjies litteras testimoniales exquirere,
provideat Ordinarius saltern per iuramentum supple-
torium a promovendo praestandum.
§ 3. Si post obtentas litteras testimoniales et ante
peractam ordinationem, promovendus praedicto tern-
poris spatio in eodem territorio rursus moratus sit,
novae litterae testimoniales Ordinarii loci necessariae
sunt
Can. 995
§ 1. Etiam Superior religiosus suis litteris dimis-
soriis non solum testari debet promovendum pro-
fessionem religiosam emisisse et esse de familia domus
religiosae sibi subditae, sed etiam dc studiis pcractis,
deque aliis iure requisitis.
§ 2. Episcopus, acceptis iis litteris dimissoriis, aliis
testimonialibus litteris non indiget.
Seculars as well as those religious who in matters of
ordination are governed by the rules laid down for secu-
lars, must produce :
i°. A certificate of the order they have received last,
or if tonsure is to be received, their baptismal and con-
firmation record ;
20. A certificate showing that they have completed the
studies required for the several orders according to can.
976;
30. Testimonials from the rector of the seminary, or
from the priest to whose care the candidate had been en-
gle
\ v ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANONS 994-995 5^5
a
trusted during his stay outside the seminary, as to his
good character ;
4°. Testimonials from the Ordinary of the diocese in
which the candidate has lived sufficiently long to contract
a canonical impediment;
5°. Testimonials from the higher superior, if the candi-
■
date belongs to a religious community.
Can. 994, in § I, determines the time which may be
considered sufficient for one to contract a canonical im-
pediment. It is, as a rule, six months after the age of
puberty, and three months for those engaged in military
service. However, the bishop may, if he thinks it pru-
dent, demand testimonials for a shorter time, and also
for the time before the age of puberty.
§ 2. If the Ordinary himself, or other responsible men
of his surroundings or diocese, do not know the candidate
sufficiently well to be able to testify to his freedom
from canonical impediments for the time spent in the
diocese, the Ordinary shall demand a supplementary oath
from the candidate. This same oath shall also be de-
manded if the candidate has lived in so many dioceses
that it is impossible, or extremely difficult, to obtain all
the testimonials required.
§ 3. If, after the testimonials have been obtained and
before the candidate is ordained, he again lives in the
same territory for a space of time which may suffice for
contracting a canonical impediment, new testimonials from
the local Ordinary are required.
Can. 995 regulates the matter with regard to religious
superiors. These, when giving the litterae dimissoriae,
must testify that the candidate has made religious pro-
fession, and that he is a member of the religious house
subject to the resp. superior, and has completed the re-
".
C' I Original from
iOO^IL UNIVERSITY 0FWI5C0NSIN
516 ECCLESIASTICAL THINGS
quired studies and complied with the other conditions
demanded by law. Upon having received the litterae
dimissoriae thus described, the bishop needs no other
testimonials.
The first of these canons mentions (i°) the certificate
-
of ordination, which was formerly called litterae formatae,
or written statement of the order received. In Rome the
Cardinal-Vicar issues such litterae after each ordination.
The document contains the name of the ordaining bishop
and the place and date of ordination. A similar attesta-
tion must be issued after tonsure has been conferred, and
for receiving tonsure, the baptismal and confirmation cer-
tificates must be exhibited either to the cpiscopus proprius
or to the ordaining bishop, together with the dimissorials.
But after tonsure has been received and the certificate
properly issued, the baptismal and confirmation records
are no longer required.
(2°) The contents of the testimonials for the secular
clergy refer to the studies, the moral character and free-
dom from canonical impediments.
(a) The studies must have been completed according
to can. 976, and the testimonials must state that the terms
required by law have been adhered to, unless a special in-
dult permits one to be ordained to the priesthood after
a three years' theological course, which fact should, we
believe, be mentioned.
(b) The testimonials concerning moral behavior con-
tain what was formerly called de ntoribus et vita} Hence
what we call conduct must be testified to, or, as the
Council of Trent says, the candidates must be " it a pietate
ac castis moribus conspicui, ut praeclarum bonorutn
operum exemplum ct vitae ntonita ab eis possint exspec*
s Innocent XII, " Specutatores," Nov. 4, 1694, II j-6.
* I Innalp Original from
,00cVC UNIVERSITY OF WISCONSIN
"-.
CANON 995 517
tori." 4 This testimony may be based upon the usual re-
ports made by the director of the seminary.
(c) Freedom from canonical impediments means ab-
sence of the irregularities and canonical impediments men-
tioned in can. 987, and freedom from any censure or vin-
dictive penalty which would prohibit the receiving of, or
ascent to7 a higher order.6 Hence the phrase in these
letters : " et nullis, quantum scitnus, censuris irretituni"
(3°) Who are to give these letters? The certificate
of orders received should be issued by the bishop who
conferred the same, or by his diooesan chancellor. The
baptismal certificate is issued by the parish priest in whose
parish the ordinand was baptized. The confirmation cer-
tificate by the bishop who confirmed the ordinand or by
his officials. The testimonials concerning studies must
be issued by the Ordinary in whose diocese these studies
were made.* In that case, however, the director of the
seminary shall testify to the time spent in the seminary,
together with the result of the examinations passed by the
candidate. To these the director of the seminary may
add the testimonials concerning the conduct of the candi-
date, though these testimonials need not be given in writ-
ing, but may be given orally.
For the testimonials touching canonical impediments
several Ordinaries may be required. The old law and
practice insisted that the episcopus proprius ratione origi-
nis give the testimonials/ although any other competent
bishop might ordain the candidate. Our Code, as far as
we understand it, does not demand this, either in can.
4 Trid., Swi. 23, c. 14, de ref., fl Many, /. c, p. 323.
concerning the priesthood. T Innocent XII. " Speculator ts."
B An excommunicated Catholic B 4; S. C. C, April 27, 1720; Feb.
cannot licitljr receive the Sacra- 7, >73j; Mar --■;, 1824 (Richtcr,
■tenta, cfr. can. 2260, 8 1. Trid., p. 190 f., on. 11, 16, 26).
►ogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
518 ECCLESIASTICAL THINGS
St
956, or in can. 993, but, on the contrary, only slates (can.
994, 1 ° ) that the time for contracting a canonical impedi-
ment begins after the fourteenth year is completed. It
makes no reference to the episcopus originis. Hence only
those Ordinaries in whose dioceses the candidate has
lived for six months after his 14th year, must give the
testimonials; or in case of a soldier, the Ordinaries in
whose dioceses the candidate has spent at least three
months.8 Note the term, "pro militibus," for soldiers,
which sounds somewhat different from the wording found
in the decree of the S.C.C., of Jan. 26th, 1895, which
reads : " pro clericis ordinandis iam tnilitiae addictis." •
This meant that only clergymen soldiers had to bring tes-
timonials from every Ordinary in whose diocese they had
spent at least three months. The Code demands this of
all soldiers whether they are about to receive tonsure or
are already tonsured. The reason is palpable: they are
supposed to have commenced their theological studies ac-
cording to can. 976, i°.
The Code, however, foresees the difficulty which was
proposed in the above-mentioned decision of 1895, to wit,
how to obtain the testimonials of all these Ordinaries.
This may be impossible morally or physically, for
lack of knowledge of the ordinand, or because of diffi-
culties of communication, interrupted travel, etc. In
that case the Ordinary competent for ordination must
require a supplementary oath from the ordinand. This
is taken upon the gospel book. Its object is to make sure
of the candidate's freedom from canonical impediments,
nothing more. The bishop is no longer :0 obliged to recur
B Trimestrt iignifiefl a continuous in various dioceses for Ira than
sojourn of three months. Therefore, three months; but they mar ask for
strictly speaking, Ordinaries are not information.
obliged to ask for testimonials if a 9 Urgtlitana (Coll. P. F., n. 1886).
soldier clergyman would have stayed 10 Formerly he needed a special
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-
■
pi
CANON 995 5*9
to the Holy See for taking the oath under such circum-
stances.
The text (can. 993, 40) says " ordinarii loci," by which
name are understood ail those mentioned in can. 198.
Therefore the Vicar-General and the Vicar-Capitular may
issue these testimonials.
(40) As to the testimonials required of religious, the
following remarks may suffice (compare with can. 964) :
(a) Exempt religious superiors of higher rank, i.e.,
generals or provincials, are exclusively competent to grant
testimonials to those who are subject to them, for all
orders. They grant dimissorials, and with these may in-
clude the testimonials. No other testimonials are needed
if the candidates have not been engaged in military serv-
ice or made their studies outside their own study house.11
The certificates of Baptism and Confirmation are not ex-
pressly required, because aspirants to the religious state
must bring them along when they enter.
But if a religious has to undergo military service (as
in France and Italy) the religious superior must obtain
litterae testimoniaies from each and every Ordinary in
whose diocese the candidate spent at least three months.12
However, in the case mentioned in can. 994, 2°, namely,
when it is impossible or difficult to obtain all these testi-
monials, the religious superior — for he is the Ordinary
of the ordinandus — may demand a supplementary oath
from the candidate as to his freedom from canonical im-
pediments. If the candidate has made his studies outside
the study house of his order or congregation, the superior
must ask for a certificate of studies properly completed,
as required by can. 976, and testimonials frotn the director
faculty from the Ap. See; S. C. C. Nov. ay, igoa {A. S. S.. Vol. as.
Jan. *6, 1895. 6j8) ; this was issued for Italy, but
11 See can. 544, 9 I. rnay be applied to all countries with
12 S. C. super DiscipUno Regulari, compulsory service for clergymen.
>Ic
k ,1,., Original from
UNIVERSITY OF WISCONSIN
S20 ECCLESIASTICAL THINGS
of the seminary or study house as to the moral character
of the candidate. After the exempt religious superior
has collected all these informations, de quibus conscientia
eius oneratiir, he may draw up one document containing
the dimissorials and testimonials and present the candi-
-
date to the diocesan bishop, or to another if can. 966 ad-
mits. If the episcopus proprius ordains at the house of
the religious, no writing is required, because everything
may be done orally.
(b) N on-exempt religious superiors proceed similarly,
with some little difference. Since they are allowed to
grant dimissorials only for tonsure and minor orders,
whilst for higher orders the competent bishop is the one
according to can. 956, " domicilii una cum origine aut
domicilii solius," the onus of gathering the testimonials
would seem to rest on the episcopus proprius. Yet it ap-
pears to be more conformable to the wording and intention
of the law, as laid down in can. 993, 50, and can. 995,
that the religious superior perform this task, and then he
has to proceed as stated above under (a). For the
bishop may be satisfied with the testimonials presented
by the religious superior, as can. 995, 20, expressly
states.13
(c) The contents of these testimonials are outlined in
the same can. 995, i°. They must contain the statement
that the candidate has made simple temporary profession
for tonsure and minor orders, or perpetual or solemn pro-
fession for major orders. The superior must further-
more testify that the candidate is an habitual," not only
a temporary, member of the community of which he is
superior. Besides, the course of studies, as set forth in
can. 976, must be testified to. And finally de aliis iure
18 Cfr. S. C. Ki:. et RR., March l«0* comventu, or de fmmiha.
I, 1893 iaf-uJ Many, /. c, p. 42s f.). to prevent fraud, tee can. 967
ogle
£ " ^ ^ *\r* Original from
UNIVERSITY OF WISCONSIN
—
a
N
■
CANONS 996-997 521
requisite. This term indicates what we stated under
(a) concerning military service and course; in other
seminaries, from which latter the ordinand must have
testimonials of the director as to his moral cowluct. No
other testimonials are required.15
examinations before ordination
Can. 996
§ z. Quilibet promovendus sive saecularie eive re-
ligiosus debet praevium ac diligens examen subire circa
ipsum ordinem suscipiendum.
§ a. Promovendi vero ad sacros ordines in aliis
quoque de sacra theologia tractationibus periculum
faciant
§ 3. Episcoporum est statuere qua mcthodo, coram
quibus examinatoribus et quibus in tractationibus
sacrae theologiae promovendi periculum facere de-
beant.
Can. 997
§ r. Hoc examen sive pro clericis saecularibus sive
pro religiosis recipit loci Ordinarius qui iure propria
ordinat, aut dat dimissorias litteras ; qui tamen potest
quoque, ex iusta causa, illud Episcopo ordinaturo com-
mitter e qui id oneris suscipere velit.
§ 2. Episcopus alienum subditum sive saecularem
sive religiosum ordinans cum legitimis litteris dimis-
soriis, quibus asseritur candidatum examinatum fuisse
ad norman § 1, et idoneum repertum, potest huic
attestation i acquiescere, sed non tenetur; et si pro sua
is Thus testimonials from the ligion, ire not required, being sup-
bishops in whose diocesea they lired plied by the testimonials required
for si* months before entering re- for entrance.
Go >gle
j , Original fro ni
UNIVERSITY OF WISCONSIN
522 ECCLESIASTICAL THINGS
conscientia censeat candidatum non esse idoneum, cum
ne promo veat.
Of
A synod of Nantes lfl set up the rule that those who
wished to enter the sacred ministry should present them-
selves, accompanied by their archpriest, before the bishop
on Wednesday before ordination day. The bishop should
choose from among his priests and other prudent men
some examiners well versed in divine and ecclesiastical
law, who should carefully examine the ordinandi con-
cerning their faith, morals, and education. The substance
of this canon entered the decrees of the Council of
Trent,17 whence it was adopted into our Code.
§ i of can. 996 enacts that all seculars as well as reli-
gious must, before ordination, be carefully examined con-
cerning the order they are going to receive. This infor-
mation can best be obtained from the Pontificate Roma-
nian, which should therefore be studied, together with the
practical exercises.
§ 2. Those to be promoted to higher orders shall also
undergo an examination in the one or other theological
discipline which they studied in school.
§ 3. The bishop has the right to determine the method,
the examiners and the subject-matter of these examina-
tions. The prelate before whom the secular as well as
religious clergy have to pass this examination (can. 997,
i°) is the competent ordinary, who either himself or-
dains them or grants them dimissorials. The competent
ordinary may, for a just reason, entrust the ordaining
bishop with this examination, provided the latter is
willing.
Note that no distinction is made between exempt and
-
<
l« C. s, Diat 24 (held probably in 11 Seu. 23, c 14, de ref.
6$%. Hefelc, Cane.-Gtsch., III. 97:
IV, 5J7).
>gle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 997 523
non-exempt religious. All have to undergo the exami-
nation, not before their religious superior, but before the
examiners appointed by the bishop, and in his presence.
Even those who claimed to be exempt, and who enjoyed
many privileges, were told that the examination for ordi-
nation must be made either before the competent or the
ordaining bishop.18 The Council of Trent enjoined bish-
ops to suspend from the exercise of orders all those who
were presented as fit but were found to be unfit.19
§ 20, can. 997, permits the bishop who ordains one not
his subject, either secular or regular, to abide by the at-
testation of the episcopus proprius. But this statement,
which is given together with the dimissorials, supposes
that the candidate was duly examined according to § 1 of
this canon and found fit. Yet the ordaining bishop is
not bound to accept the attestation, and should not ordain
the candidate if he in conscience regards him as unfit.
The question was once proposed to the S. Congre-
gation 20 whether an auxiliary bishop may examine a can-
didate who has received dimissorials from his own bishop
(or, sede vacante, from the Vicar-Capitular, after a year's
vacancy), and reject him, if he finds him unfit. The an-
swer was as stated in the text : he is not obliged to, but
may, examine him. In that case the candidate may ap-
peal to his bishop, who would be entitled to try another
bishop, or have recourse to the S. Cong. Consistorialis.
But if a religious, whether exempt or non-exempt, is re-
jected by his own bishop, i. e., the bishop, in whose dio-
cese the religious house is located, the superior is not
allowed to send the religious to another bishop ; *l he
may, however, appeal to the S. C. Religiosorum.
-
IB S. C. EE. et RR., July 13, 1730 17*0; Jan. 16, 1595; Jan. 17, 1693
(Bixzarri, Coll. p. 341 *). (Riehter, Trid., p. 190 f. n. ia).
19 Sess. 14, c. 3, dt ref. 21 S. C. C, March 14, 1620; S. C.
20 S. C. C.t Aug. a. Auh. aj. EE et RR., Feb. 13. 1838; Piatus
I Original from
' K H 'gie UNIVERSITY OF WISCONSIN
E
524 ECCLESIASTICAL THINGS
publication of the ordination
Can. 998
§ 1. Homina promovendorum ad singulos sacros
ordines, exccptis religiosis a votis perpetuis sivc
sollemnibus sive simplicibus, publice dcnuntientur in
paroec:ali cuiusque candidate ecclesia; sed Ordinarius
pro sua prudentia potest turn ab hac publications dis-
pcnsarc ex iusta causa, turn praecipere ut in aliis
ecclcsiis peragatur, turn publication! substituere pub-
•a
licam ad valvas ecclesiae affixionem per aliquot dies,
in qui bus unus saltern dies festus comprehendatur.
§ 2. Publicatio fiat die festo de praecepto in ecclesia
inter Missarum sollemnia aut alia die et hora quibus
rnaioi populi frequentia in ecclesia habeatur.
§ 3 Si sex intra menses Candida tus promotus non
fueri , repetatux publicatio, nisi aliud Ordinaxio
vidctttur.
Can. 999
5
Omnes fideles obligatione tenentur impedimenta ad
sacros ordines, si qua norint, Ordinario vel parocho
ante sacram ordinationem revelandi.
The Council of Trent22 made a rule which was never
put into practice or forgotten in many dioceses,13 namely,
that the names of candidates for ordination should be
publicly announced in their respective parish churches.
This rule the Code re-inforces for all aspirants to kightr
orders^ with the exception of religious with either simple
or solemn vows. The church in which these publications
M /. c, II, p. 397; Many, /. c, it observed in tfce U. S., and the
p 389. contrary custom cannot be rtyled
dz Scss. aj, c. 5, de rcf. unreasonable.
23 Many, /. c, p. jo6; neither was
oogle
Y ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON iooo 525
%
o>
a
are to be made is the parish church of the candidate, to
which he belongs by reason of domicile or quasi-domicile
on his own part or that of his parents. The time for these
publications is the parochial service on some feast of obli-
gation or any other day or hour when there is a large
gathering of people.
If the candidate is not ordained within six months from
the date of the publication, the latter must be repeated.
The bishop may, for a just reason, dispense with this an-
nouncement, but he has a right to demand that the publica-
tion be made not only in the parish church of the candi-
date, but also elsewhere, or that, instead of a public an-
nouncement, the names be posted at the church door and
left there for some days, one of which should be a holy-
day of obligation.
Can. 999 enjoins upon all the faithful the obligation of
revealing to the Ordinary or pastor, before the day of
ordination, any impediments they may happen to know of.
The reader will readily perceive the similarity between
these announcements and the publication of the banns (see
can. 1022 ff.).
1-
SPECIAL INFORMATION
i/i
a
Can. iooo
§ 1. Parocho qui publicationem peragit, et etiam alii,
si id expedire videatur, Ordinarius committat ut de
ordinandorum moribus et vita a fide dignis diligenter
exquirat, et litteras testimoniales, ipsam investiga-
tionem et publicationem referentes, ad Curiam trans-
mittal.
§ 2. Idem Ordinarius alias percontationes etiam pri-
vatas, si id necessarium aut opportunum iudicaverit,
facere ne ornittat*
§le
£ ' ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
■
pi
526 ECCLESIASTICAL THINGS
The Ordinary may ask the pastor who has made the
publication, or, if he deems it expedient, any other per-
son, to investigate the conduct and life of the candidate by
questioning trustworthy persons, and to transmit the tes-
timonial letters containing the results of that investiga-
tion and publication to the diocesan court.
The Ordinary may and should, if he deems it necessary
or advisable, also make private inquiries.
The text is plain, and we need only add that, as the
matter is a serious one, all who are called upon to give
information should feel bound in conscience to testify
faithfully and impartially.
spiritual exercises or retreat
Can. iooi
§ 1. Qui ad primam tonsuram et ordines minores
promovendi sunt, spiritualibus exercitiis per tres
saltern integros dies; qui vero ad ordines sacros, sal-
tern per sex integros dies vacent ; sed si qui , intra
semestre, ad plures ordines maiores promovendi sint,
Ordinarius potest exercitiorum tempus pro ordinatione
ad diaconaturn reducere, non tamen infra tres integros
dies.
§ 2. Si, expletis exercitiis, sacra ordinatio qualibet
de causa ultra semestre differatur, exercitia iteren-
tur; secus iudicet Ordinarius utrum iteranda sint,
necne.
§ 3. Haec spiritualia exercitia religiosi peragant in
propria domo vel in alia de prudenti Superioris arbi-
trio; saeculares vero in Serninario aut in alia pia vel
religiosa domo ab Episcopo designata.
§ 4. De peractis spiritualibus exercitiis Episcopus
certior fiat testimonio Superioris domus, in qua peracta
Go >gle
s -l] ^ Original from
UNIVERSITY OF WISCONSIN
"
CANON iooi 527
fuerint ; vel, si de religiosis agatur, attestations proprii
Superioris maioris.
What was formerly prescribed for the clergy to be or-
dained in Rome, for the suburbicarian and Italian clergy,24
and was by way of pious custom observed elsewhere, has
now become general law, vis.:
1. That a retreat of three full days precede tonsure and
minor orders, and one of six full days each sacred order.
If three major orders are received within a semester, or
six months, the ordinary may reduce the time of the re-
treat for the diaconate to three days, but no less.
2. If for any reason ordination is put off more than
six months, the retreat must be repeated; if the delay is
less than six months, it is for the Ordinary to decide
whether the retreat must be repeated.
3. Religious must make the retreat in their own house,
or in such other place as the superiors deem proper;
seculars, in the seminary or in a religious institution,
convent, or monastery appointed by the bishop.
4. The bishop must be informed of the retreat by an
attestation of the superior of the house in which the exer-
cises took place; and in the case of religious by an attesta-
tion of their superiors.
We surmise the bishop who is entitled to be informed
is the one who is to ordain the candidate. If he is not
at the same time the episcopus proprius, he may abide by
the attestation of the latter.
The candidate himself should see to it that all his papers
are in proper shape, he being the one who should ask for
the testimonials, unless this is done by the director of the
seminary.25
24 Ale*. VII, " Apostolico Solli- RR- Oct 9, 168a (BUzarri, Coll,
citudo," Aug. 7, 1662: S. C. EE. et p. 374 O.
25 Many. /. c, p. 3*3 f-
>Ic
, ,1,., Original from
UNIVERSITY OF WISCONSIN
N
■
CHAPTER IV
rites and ceremonies of s. ordination
Can. 1002
In quovis conferendo ordinc, minister proprios ritus
in Fontificali Romano aliisve ritualibus libris ab
Ecclesia probatis descriptos, adamussim aervet, quos
nulla ratione licet practerire vel invertere.
The minister, in conferring orders, must carefully ob-
serve the rites prescribed in the Pontificale Rotnanum and
other liturgical books approved by the Church, and he is
not allowed to omit or change anything.
The venerable age 1 of these rites commands the great-
est respect and the danger of exposing the Sacrament to
nullity 2 by omitting an essential part of the form should
caution the minister to follow the Pontificale closely. He
should adhere scrupulously to the words and rubrics of
the Pontificate, no matter what his personal opinion may
be concerning the matter of the Sacrament of Orders.
The Greeks must use their Euchologia, although these do
not contain all the minor orders in vogue among the
Latins.3
The minister is not allowed to omit an order, or any
part of the prayers and ceremonies, nor to invert the order
lThe oldest documents relating 2 Leo XIII, "Apostolicae curat,"
to the rite of ordination are the Sept. ij, 1896; Many, /. c, p. sjo.
Sacramentarium Lconianum and the a Benedict XIV, " Etsi tutor-
Greyorianum (Vlth and Vllth alts," May afi, 1742, | VII, n. VI.
century) and the Ordines Roman*,
of the VHIth and IXth.
528
I Original from
f^OOgK. UNIVERSITY OF WISCONSIN
CANON 1003 529
Q
of the Roman Pontificate. Therefore, also, the anoint-
ings (unctiones) must be performed according to the
rubrics. Thus if the Pontifical says: " ungit totaliter
palmas" the whole interior palm of the hand together
with the fingers is to be anointed.* It is not necessary to
add the different requisites for conferring orders, as they
are stated plainly enough in the liturgical books.1
s
THE ORDINATION MASS
CAN.'lCfctf
Missa ordinationis vel consecrationis episcopalis
semper' debet ab ipsomet ordinationis vcl consecra-
tionis ministro celebrari.
■
The Mass of ordination or episcopal consecration must
always be celebrated by the minister of ordination or
consecration himself.
This law was so vigorously insisted upon that the S.
Congregation never permitted an exception, though re-
peatedly requested to do so. Thus an old bishop afflicted
with the gout asked to confer orders sitting on the
scamnum. But though there was no other bishop within
a radius of 300 miles, the S. Rit. C. answered: nihil, and
the second time, nihil indulgendiim fere* Another bishop
in the same condition was told : non licere.7 Hence when
a bishop is unable to say the ordination mass, nothing
else remains to be done than either to call in another
bishop or to send the candidate to another. Now-a-days
there is no great difficulty in doing so, except perhaps in
China and "darkest" Africa.
4S. Rit. C, Jan. w, 1917 fl S. Rit C, June 8, 1658; Jan.
{A. Ap. S., IX, 351 f.). 24, 1660 {Dec. Auth., nn. 1070,
6 See the very practical Manual 1150).
*f Episcopal Ceremonies by A. T S. Rit C, Sept. aj, 1837 (Dec.
Stehle, O. S. B., 1916. P- J5J * Autk.. n. 271a).
g'e UNIVERSlfY
5 'rtrwiltf Original from
530 ECCLESIASTICAL THINGS
a
Q
We may add two other decisions of the same S. Con-
gregation concerning the rubrical Afass. On Holy Satur-
day the ordination mass, even if the bishop confers orders
in his domestic chapel, must commence with the prophe-
sies. On the six Saturdays on which general ordinations
are held, the Missa must always be de feria occurrente,
even though the bishop may say Mass privately and with-
out chant. The custom of saying the Missa de Sancto is
not to be tolerated.9
■
oriental and latin rites
Can. 1004
a
Si quis, ritu orientali ad aliquos ordines iam pro-
motus, a Sede Apostolica indultum obtinuerit
supcriorcs ordines suscipiendi ritu latino, debet prius
ritu latino reciperc ordines quos ritu orientali non
recepcrit.
E
If one has received some orders in an Oriental rite
and afterwards obtained an Apostolic indult to receive
the higher orders according to the Latin rite, he must
first receive in the Latin rite those orders which he did
not receive in the Oriental rite.
To understand this canon it must be remembered that
o
the Greek Euclwlogion, as published in 1754, and more
lately in 1873, °y *ne Propaganda, contains no special
formularies except for conferring the tonsure or clericate
and the lectorate 9 among minor orders. But the Latin
subdiaconate includes not only this order proper, but also
the acolythate and ostiariate. Hence, — says Benedict
XIV, from whose Constitution, " Etsi pastorQlis," May
■■■
8 S. Rit. C, March *i, 174-1; Feb. » Two orders, lectorate and c«n-
11, 1764 (Dec. Auth., nn. 2375, torate, are almost identical.
=473)-
^le
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 1005 531
26, 1742, our text is taken, — if one has received the
clericate and lectorate according to the Greek rite, and
afterwards obtains an Apostolic indult to receive the
major orders according to the Latin rite, he must, before
he can receive subdeaconship, receive the ostiariate,
the exorcistate, and the acolythate. But if he was or-
dained in the Greek rite as far as subdeaconship inclu-
sively, it is sufficient that he receive the exorcistate, since
the acolythate and the ostiariate are included in the Greek
subdiaconate. The same rule applies if one was ordained
according to the Greek rite as far as the diaconate or
presbyterate; to wit, only the exorcistate must be sup-
plied according to the Latin rite.10 The other Oriental
rites, like those of the Syrian Maronites and Copts, all
have the same number of minor orders as the Greek,
in
whereas the Armenians, whose ritual was published offi-
cially in 1807, have the full number of the Latin rite.11
holy communion in s. ordination
Can. 1005
Omnes ad maiores ordincs promoti obligationc
tenentur sacrae communionis in ipsa ordinationis
Missa recipiendae.
What the Pontificate Romanum prescribes, the Code
here emphasizes as a universal law, vis.: that all who re-
ceive major orders are obliged to go to holy Communion
in the ordination mass.
10 See I VII, n. VI. 11 Mujr. /. c. p. 479 **•
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
N
■
CHAPTER V
time and place of ordination
days on which ordinations mav be conferred
Can. 1006
§ 1. Consecratio episcopal is conferri debet intra
Missarum sollemnia, die dominico vel natalitio Apos-
tolorum.
§ 2. Ordinationcs in sacris celebrentur intra Mis-
sarum sollemnia sabbatis Quatuor Temporum, sabbato
ante dominicam Passionis, et Sabbato Sancto.
§ 3- Gravi tamen causa intervenientc, Episcopus
potest eas habere etiam quolibet die dominico aut festo
de praecepto.
§ 4. Prima tonsura quolibet die et hora conferri
potest; ordines minores singulis diebus dominicis et
festis duplicibus, mane tamen.
§ 5. Reprobatur consuetudo contra ordinationum
tempora praecedentibus paragraphis praescripta; quae
servanda quoque sunt, cum Episcopus latini ritus or-
dinat ex apostolico indulto clericum ritus orientalis
aut contra.
§ 1. Episcopal consecration must be conferred during
the solemnity of the Mass on a Sunday or the feast of an
Apostle.
According to the Roman Pontifical,1 a missa cantata
is not required, hence a low Mass is sufficient.
l De Cod sec rati on e Elect! in Eptscopum si Musa cantatur.
532
G| Original from
UOglt UNIVERSITY OF WISCONSIN
CANON 1006 533
a
The days on which consecration may take place are the
Sundays and the feastdays of the Apostles. This term
is to be interpreted strictly, and hence episcopal consecra-
tion on a holyday of obligation during the week or on a
suppressed feastday, is not permitted without a special
Apostolic indult. The expression, " feast of an Apostle,"
is also to be taken in its strict sense, to the exclusion of
the feasts of SS. Luke, Mark, and Barnabas.8
§ 2 and § 3. Higher Orders should be conferred during
holy Mass on the four Ember Saturdays, on the Saturday
" Sitientes," before Passion Sunday, and on Holy Satur-
day. However, the bishop may ordain to higher orders
also on any Sunday or holyday of obligation if there be
a grave reason for so doing.
The practice here mentioned dates back to the fifth cen-
tury, at least as far as it concerns the four Ember days
and Saturday before Passion Sunday, for these are men-
tioned in a decree of Gelasius I (492-496), part of which
has found a place in Gratian's Decree.1 Holy Saturday is
mentioned only once, in a Decretal of Alexander III, but
was assigned as Ordination Day* in Rome already by
Pelagius II (579-590). The reason for assigning these
days was that the solemn fast was protracted to midnight
of the following Sunday, on which, as the first day of the
week, God commenced to create the world, Christ arose
and sent the Holy Ghost upon the disciples.5 From this
it may be understood why Sunday or a feastday is per-
mitted.
The Code requires a gravis causa for conferring sacred
orders on any other day besides the six Saturdays. The
judgment as to the gravity of the reason is left to the
Q
"-.
IS. Kit. C, April 4, 1913 * C, j, X, I. 11.
{A. Ap. S., V, 186). 6 C. 4, Dist. 75; Migne, P. L., 54.
tStt c. 7, Dirt. 75. 6*5; Many, /. c, p. aj8 f.
>Ic
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
534 ECCLESIASTICAL THINGS
bishop. We may be permitted to add that the incon-
venience of a " tnagro " ( fast) could hardly be styled a
grave reason.
Note that the Code is silent about the fast, which the
Pontificate Romanutn says should fitly be observed on the
day before episcopal consecration. No such obligation is
insinuated in our text. It is understood, of course, that
ordination on one of the six Saturdays does not per se
constitute an excuse for violating the fast. If a feast of
obligation, together with the office, is by a special indult
transferred to a Sunday, ordination may be held on that
I day.*
We note a few important decisions of the S. Congre-
gations on kindred topics. The S.C. Concilii has always
insisted that the bishop should not ordain candidates who
have the privilege or an indult allowing them to be or-
dained extra tempora, on a day which is not a holyday
of obligation.7 The Congregation of Bishops and Regu-
lars once answered, concerning exempt regulars who en-
joyed the privilege of being ordained extra tempora, that
the bishop may, but is not obliged to, ordain them on odd
days.1 However, even for exempt religious § 5 of our
canon is binding.
§ 4. Tonsure may be given on any day and at any
hour of the day, in the forenoon or in the after-
noon.0 Minor Orders may be conferred on Sundays and
weekdays which have a feast celebrated or marked in the
diocesan calendar as duplex. At least this seems the ob-
CI
« S. Rit. C, March 6, 1896, I. 3 *, 3. 4>: S. O., March 5, 171a
(Dec. Auth.. n. 380): but the {Coll P. F., n. *8o>. Our text
bishop is not allowed to ordain on excludes such days,
the diet a quo. 8 S. C. EE. rt RR., July ig, 173a
' Jan. 15, 1689. On half holidays (Biwarri. /. c, p. 343).
the S. C. permitted ordination if an » S. C. C, April 13, 1730 (Richter,
indult was Riven; S. C. C, May I c, n. 5).
II, 1782 (Richter, Trid., p. 186, nn.
>ogle
/■"* ^ v ,L> Original from
UNIVERSITY OF WISCONSIN
CANON 1006 535
vious sense of the term festis duplicibus, although it is
true that certain decisions of the S. Rit. C. admit only
feastdays of obligation or " double " feasts which were
feastdays of obligation before they were suppressed;
in other words feasts of Apostles and other suppressed
holy-days.10 Hcfwever, the legislator, by using the term
" festa duplicia " certainly wishes us to understand it in
a general sense, and in this sense all the feasts marked as
duplicia are days on which minor orders may be con-
ferred. Mane tantum properly signifies an early morn-
ing hour, but in view of a decision which permitted the
conferring of tonsure and minor orders in the after-
noon," we may safely say that mane includes the whole
of the time during which it is permitted to say Mass.
§ 5. The custom of ordaining outside the times pre-
scribed in the preceding sections is reprobated. These
times must also be observed when a bishop of the Latin
Rite, in virtue of an Apostolic indult, ordains a clergy-
man of an Oriental rite, and conversely. The reason
for this latter enactment is the contrary practice of the
Oriental bishops, who never received the decrees and
decretals of the Western Church and still ordain on
any day of the year.12
The reprobation of the custom of ordaining on other
than the prescribed days also concerns our bishops, who
must therefore relinquish the old custom. The facul-
ties w which they formerly enjoyed are abrogated, even
though they were granted as late as Jan. 1, 1918. The
decree of April 25, 1918, has abolished them in foro
externo. Exempt religious must also abide by this
law.
10 S. Rit. C, Nov. ia, 1831, »d u Miny. I. r, p. j6j.
1; March 16, 1833; Feb. 18, 1843 "See Putzer, Comment,, p. 144
{Dec. Auth., r.n. 2662, 2705, 2852). ff.
11 S. C C, April 1 j, 17*0
(Richter, L c, p. 186, n. 5).
I by Google
j , Original fro m
UNIVERSITY OF WISCONSIN
536 ECCLESIASTICAL THINGS
a
defective ordination
Can. 1007
Quoties ordinatio iteranda sit vcl aliquis ritus sup-
plendus, sive absolute sive sub condition^ id fieri pot-
est etiam extra tempora ac secreto.
Whenever ordination has to be repeated, or a rite has
to be supplied, either absolutely or conditionally, this
may be done outside of the appointed time and secretly.
This brief canon raises a number of incidental ques-
tions. Repetition of ordination may become necessary
either by reason of a fault committed by the ordaining
prelate or by reason of the candidate's disposition.
Since ordination in the Latin Church now consists of the
double matter of the imposition of hands and the delivery
of the instruments, the question naturally arises whether
both are essential to the validity of the episcopate,
presbyterate, and diaconate. The answer is that, theoret-
ically speaking, only one, namely, the imposition of hands,
is essential. However, since in the administration of the
Sacraments the safer view (tutior opinio) must be fol-
lowed, it has«been the practice of the Roman Court to
order ordination to be repeated if an essential part either
of the imposition of hands or the delivery of instruments
has been omitted or corrupted. The same rule holds
good also with regard to the form. Below we shall re-
hearse several decisions which illustrate the essential parts
of the priesthood and the diaconate. As to the episcopate
and the subdiaconate, decisions are scarce, but the prac-
tice of the Church may be deduced from analogy.
The matter of ordination to the priesthood comprises
the imposition of hands and the delivery of the instru-
ments.
■
G i Original from
OU^IL UNIVERSITY 0FWI5C0NSIN
,1
■"■
CANON 1007 537
%
a<
a
(a) There are three impositions of hands. The first
one, by the bishop and the priests present, is made silently
by physical contact with the head of each ordinand;
the second is made by the bishop and priests present with
extended hands, but without physically touching the heads
of the ordinandi, whilst the bishop recites: " Oremus,
fratres carissimi," etc. The last one is performed after
Communion, when the bishop, sitting in the middle of
the altar, puts both hands upon the head of each ordinand
and says: " Accipe Spiritum Sanctum."
The first imposition must be made by physically touch-
ing the head of the ordained, i.e., the bishop at least must
touch the head, or hair, or skullcap of the ordinand; if
no physical contact has taken place, the whole rite must be
repeated conditionally."
In the second imposition the hands must be extended
over the ordinandi, at least for a moment, otherwise the
whole ceremony must be repeated conditionally.16
If the third imposition was made without physical
contact, this one imposition, together with the prayer, must
be repeated, but not the whole ordination.1®
If the first and second impositions were omitted in their
proper place, and supplied after Communion, before the
"lam non dicam," the whole ordination must be repeated
conditionally.17
The same rule applies to the diaconate. If the imposi-
tion was made without physical contact, the whole cere-
mony must be repeated conditionally18
(b) Concerning the delivery of the instruments the
14 S. 0., Aug. [9, 1851; Jan. ao, MS. 0., Aug. 19, 1851 (n. 1066).
'875; Jan. aG, 1898; July 4, 1900 »T S. O., Aug. *z, 1900 (ibid., n.
(Coll. P. F., an. 1066, 1431, 1989, 2092).
jo86). » S. O., Jan. so, 1875; Jan. 26,
is S. O . July 6, 1808: July 19, 189S (/. c).
1899 {ibid., nn. 2009, 2058).
jle
Original fro ni s
UNIVERSITY OF WISCONSIN
'.•-.
538 ECCLESIASTICAL THINGS
following decisions may be cited : If this ceremony was
entirely omitted, the whole ordination must be repeated."
In one case the imposition was duly made, but the ordi-
nand had forgotten to touch the instruments. The rite
had to be repeated.20
If the instruments were offered to the ordinand not by
the bishop himself, but by another, for instance, the
master of ceremonies, the whole ordination must be re-
peated conditionally.21
As to touching the instruments, the Holy Office, has an-
swered in several instances with " Acquiescat," i.e., the
ordination is valid if the chalice and paten were touched,
even though the hefct was not; or if the chalice only was
touched, and not the paten; or if the paten only was
touched, or the host only, without the paten; or if the
ordinand touched the chalice first and then the paten, but
not at the moment when the bishop pronounced the
words; or if the bishop, when reaching the chalice and
paten, for some moments interrupted the ceremony.*2
As to the diaconate, the delivery of the Gospel Book,
or the Missal " in its place, is required, together with
the formula: " Accipc potestatem legendi Evangelium."
If this is omitted, or if no moral (not even a dubiously
moral) connection was made between the delivery of the
book and the act of pronouncing the words, this rite,
and it alone, must be repeated secretly; the repetition
may be made at the next ordination or, if it is incon-
venient for the deacon to wait for the next ordination
at any other time.24
i» De Syn. Dioec., VIII, io, I. a? S. O., Jan. 17, 1900; March 7.
20 S. O., Aug. i, 1697; cfr. Many, 1897; Dec 14, 1898; April jo. 1808
I. c.r p. 563. {Coll. at., nn. 3075, 1963; A. S. S".,
31 S. O., Jan. 17. >9°o: July 6, Vol. 30, a8fi, 750).
1898; Jan. ii, 1899; Sept. 7, 189a 13 S. Rit G, Sept a?, 1873
{Coll. P. F., an. J075, 200S, aoja, {Dec. Auih., n. 3315).
1811). 24 S. Rit. C, June 16, 1837 {D*e.
Auth., n. 3767).
>Ie
^ ,1,., " rigirval from
UNIVERSITY OF WISCONSIN
CANON 1007 539
Concerning the episcopate, the imposition of the hands
with physical contact is required; but if this was omitted
only by the co-consecrators, nothing is to be repeated or
supplied. If the act of placing the Book of the Gospels
on the neck of the bishop elect was omitted, it would be
advisable to supply this ceremony.25
As to the subdiaconate, the delivery of the empty
chalice and paten cannot be omitted without endanger-
ing the validity of the order. If the physical touch has
been forgotten, the whole ordination must be repeated
conditionally. But if a chalice containing wine or water
would be reached instead of the empty chalice, nothing
would have to be repeated.20
2. With regard to the form of ordination, it may be
observed that the essential form of the episcopal conse-
cration consists either in the prayer " Propitiate" or,
more probably, in the preface said after the " Propitiare."
The form for the priesthood probably is also con-
tained in the preface, certainly not in the "Propitiare"
It is probable that the " Exaudi nos " may be considered
as at least the partial form. For the diaconate the form
is either the " Accipe Spiritum Sanctum ad robur," or
the Preface " Emitte." But nearly every one of these
points is controverted. ,T For the subdiaconate there is
no imposition of hands, but only a delivery of the instru-
ments, accompanied by certain formulas. The same holds
good concerning minor orders.
From these controversial views it may be seen why the
Church insists upon having everything performed ac-
cording to the Pontificate Romanurn. Any essential
change of the form would render the ordination invalid.
20 Many, /. c, p. 568. ments. III, p. 67; Man/, '• ffn P-
28 Ibid., p. 569. 499 ft .
J7 See Pohle-Preuu, Tht Sacra-
*.!_- T» r « T?....*ij_ »
* I Inr»al*> Original from
.OO^K. UNIVERSITY OF WISCONSIN
54Q ECCLESIASTICAL THINGS
If the formula for conveying the power of forgiving sins
were mispronounced, this part would have to be sup-
plied, but the whole rite of ordination would not have
to be repeated. In one case a distracted bishop said:
"Quorum remiseris peccata retenta sunt, et quorum
retinucris remissa sunt," and the Holy Office decided
that any bishop pontifically garbed should supply the
word? wrongly pronounced, and that this might be done
at any time and in the bishop's private chapel.28
It may be added that the Holy Office, when answering
questions as to the possible invalidity of an ordination
which was ordered to be conditionally repeated, always
employed the phrase : Let the ordination be secretly and
conditionally repeated on any day, fatto verbo cum Ssmo.,
in order that he might supply the Masses celebrated "
out of the treasury of the Church, as far as necessary.
Therefore, the bishop 30 should use the conditional form,
or have the intention of ordaining conditionally at the
beginning, and then perform the whole ceremony as
usual. The second part of the clause is added to assure
the priest that he is nof obliged to say again the Masses
said during his dubious state.
If the defects are only accidental, and consequently do
not affect the validity of the ordination, they are simply
to be supplied. Thus if the anointings were omitted at
an episcopal consecration, they must be supplied.31 But if
the anointings were performed and the mode only was
defective, or if one kind of oil was mistaken for another,
nothing is to be supplied. The same may be said
concerning the priesthood. Thus if the master of cere-
28 S. O., May 27, 1840; S. Rit C, 28 For instance, S. O., July 4,
May 22, 1841 (Dec. Auth,, n. 2836) 1900 (ibid., n. 2086).
S. O., Dec. 9, 1897 (Coll. P. F., n. so The clause "a guocumque
(967). episcopo" is sometimes added.
aiCfr. c. 1. X, I. 15.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1007 541
monies would offer the chrism instead of the oleum
catechumenorum, and the bishop used the former in-
stead of the latter, the ordination would not only be
valid, but nothing need be supplied." If the formula was
slightly mutilated, for instance, by using the singular
instead of the plural, or the feminine instead of the
masculine gender, or if any words were needlessly re-
peated, there is no reason for entertaining scruples. In
one case, where the bishop had forgotten to pronounce
the words " et nostrum bcnedictionem " at the anointing
of the hand, the Holy Office answered: " Acqttiescat." 81
3. As to the other orders, the following ceremonies are
not to be supplied: for deacons, the putting on of the
stole and dalmatic; for subdeacons, the handing of the
cruets and putting on of the amice, maniple, and tunic;
for ostiaries the opening of the gate and ringing of the
bells.84 But if the epistle book would not have been
touched at the ordination of a subdeacon, this omission
would have to be supplied.35
The validity of ordination furthermore depends on
the mental attitude of the ordinand. Compulsion ren-
ders ordination null and void. Graz'e fear does per se
not render it invalid, but conveys the right of having
oneself declared free of the obligations attached to higher
orders, as stated under can. 214. Fear may, moreover,
be the cause of not having the right intention. For al-
though a habitual intention is sufficient, fear may pre-
clude even this, because the actual intention caused by
fear of not being willing to be ordained, is contrary to
the habitual intention. In one case a mother morally
compelled her son to have himself ordained by threaten-
a
•8 S. O., July as, 187* (.Coll. P. M Many, /. c, p. 57a-
F., c. 1421). 35 S. C. C, Jan. 10, 171 1 (Richter,
sas. 0., Nov. 28, 1900 (A. S. S., Trid., p. 178, n. 7).
Vol. 3J. 374)-
►ogle
^ ,|rt GrigEnalfrom
UNIVERSITY OF WISCONSIN
542 ECCLESIASTICAL THINGS
a
ing to disinherit him. The son presented himself on the
day of ordination together with the other ordinandi, and
out of human respect permitted the ceremonies to be per-
formed over him, though firmly determined all the while
not to receive orders. He bowed his head to the im-
-
position and touched the instruments, but with a re-
luctant jerk. This was a plain case of lack of proper
intention, and the S. Congregation ordered conditional
reordination.M If sufficient proofs could have been fur-
nished, the S. Congregation would doubtless have decided
in favor of absolute re-ordination. A surprising answer
was given to a scrupulous priest by his confessor, who
said : The external act was sufficient, because the candi-
date in casu had approached the bishop without compul-
sion to receive orders. Distinguo: there was no com-
pulsion, concedo; there was the intention to receive or-
ders, nego.
We said that a habitual intention is sufficient. We may
add that it is also required. This means that the candi-
date must have the will or desire to receive the Sacra-
ment, or the will to receive the respective order with its
obligations. However, if he wishes the order, he also
wishes the obligation, for the two cannot be separated.
That the intention is required of receiving the Sacra-
ment, and not the merely external rite, may be made evi-
dent from the necessity of distinguishing one Sacrament
from another. And since the intention is absolutely re-
quired for Baptism " and other Sacraments, it follows
that the intention must be directed towards the Sacra-
ment of order. Thus if one positively refuses to re-
ceive an order now, although he desires to receive it
ae S. C C, Melivet., June 18, Dt Sacris Eleetionibut et Ordm*-
179J (Richter, /. c, p. 175, n. 6). tionibus, P. I, Sect. 5, c. t (Migne,
87 C. Majorca 3, III, 4a; Hollier, Cursus TheoL, t. XXIV. p. 407 ff).
Q
'■-.
5 I Original from
UNIVERSITY OF WISCONSIN
CANON 1007 543
%
o>
later on, and permits the ceremonies to be performed over
him, such a one would not be ordained, but would have
to be reordained, at least conditionally, says the Holy
Office.88 If one would make up his mind not to receive
orders as a Sacrament, but merely as c natural ceremony,
because he looked upon the rites and Sacraments of the
Church from a theosophic or a merely natural point
of view, he would not be ordained, for the Sacrament
of Orders cannot de facto exist without the supernatural
order. It is not, of course, required that an ordinand
think explicitly of the supernatural order in the course
of the ceremony of ordination.
The intention of the ordaining bishop must be vir-
tually, if not actually, directed towards doing what the
Church does. If this intention is present and virtually
exerts its influence, ordination is valid, even though the
bishop may not believe in ordination .as a Sacrament or
in the Church. The public announcement of the arch-
deacon that those suffering from a canonical impedi-
ment should not present themselves for ordination, has
no effect on the validity of ordination, even of those
who are irregular. However, if the bishop really had
the intention not to ordain those who are irregular, the
latter would not be validly ordained, provided it could be
proved by a careful investigation that the ordaining pre-
late had this negative intention, and had not revoked it
before or during the act of ordination.8'
38 S. O., Nov. 28, 1900 tColl. 1710, afntd Bened. XIV, De Sacri-
P. F., n. 3096). furio Missae, 1. Ill, c. 10, nn. 6-10.
« S. C. C, Feb. is. 1682; Jan. 11.
Q
::
oogle
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
544 ECCLESIASTICAL THINGS
ordination outside the diocese
Can. 1008
Episcopus extra proprium territorium, sine Ordinarii
loci licentia, nequit ordines conferre, in quorum colla-
tione pontificalia cxcrccntur, salvo praescripto can.
»39» § *i n. 15.
A bishop is not allowed, without the permission of the
local Ordinary, to confer outside his own diocese any or-
ders which require the exercise of pontificals.
This ruling, taken from the Council of Trent,*0 is as
ancient as the local organization of the Church. The
Oriental synods " were as rigorous as the Latin Church
with regard to the exercise of pontifical rights. The rea-
son is not far to seek, for the use of such rights pre-
supposes jurisdiction, which (with some exceptions) is
restricted to the territory of each Ordinary, and over-
lapping would cause confusion. Besides, there might be
danger of intrusion on the part of candidates for ordi-
nation who were rejected by their own Ordinaries.
Therefore our canon requires the permission of the bishop
in whose diocese the pontificals are to be exercised.
Pontificals in the strict sense are exercised only when
sacred orders are conferred; for tonsure and minor or-
ders may be conferred in rochette, stole, and simple
mitre.43 If clerics of another diocese join those of the
diocese in which a strange bishop confers orders with the
permission of the local Ordinary, they may be ordained,
provided they have dimissorials from their own bishop.43
40 Sen. 6, c. 5, d* r*f. 42 Pont. Rom.. " D* OrJinibmi
«i Cfr. cc 6, 7, 9, C. 9, q. 2; CeUbrandis."
(c. 28, C. 7, q. 1, (Pseudo-Ana- 4(1 Benedict XIV, " Ad Audien-
clete). tiom," Feb. 15, 1753, | 5 f.; S. C
C. 1753'. J»ne is. 1599 {ibid.).
►ogle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 1009 54S
St
a
Cardinals, in virtue of can. 239, i°, n. 15 enjoy the
privilege of pontificating everywhere outside the city of
Rome ; but if they wish to exercise pontifical functions
in a cathedral church, they must first inform the bishop
of the diocese. If they wish to confer tonsure and
minor orders in a cathedral church they must also de-
mand dimissorials from the bishop.4*
The suburbicarian -cardinal bishops are not allowed to
confer orders in their private chapels in Rome without
the permission of the Cardinal Vicar.45
■
"-.
place of ordination
Can. 1009
§ 1. Ordinationes generates in cathedrali ecclesia,
vocatis praesentibusque ecclesiae canonicis, publice
celebrentur ; si autem in alio dioecesis loco, praesente
clero loci, dignior, quantum fieri poterit, ecclesia
adeatur.
§ a. Non prohibetur autem Episcopus, iusta sua-
dente causa, ordinationes particulares habere in aliis
etiam ecclesiis itemque in oratorio domus episcopalis
aut Seminarii aut rcligiosae domus.
§ 3. Prima tonsura et ordines minores conferri pos-
sum etiam in privatis oratoriis.
§ i . General ordinations should be held publicly in the
cathedral church, and the canons of that church should
be called to and be present thereat. If these ordina-
tions are held elsewhere in the diocese, a more promi-
nent church should be selected and the local clergy
should be present.
§ 2. The bishop, for a just reason, may hold par-
44 Can. 339, 6 1, n. aa. 45 Benedict XIV. Const, cit., I I.
ogle
Original from
UNIVERSITY OF WISCONSIN
■
546 ECCLESIASTICAL THINGS
ticular ordinations in some other church, or in the chapel
of the episcopal residence, or in the oratory of a seminary
or convent.
§ 3. Tonsure and minor orders may also be conferred
in private oratories.
By general ordinations were always understood those
conferred on the six Saturdays assigned by law for con-
ferring higher orders. However, can. 1006, §3, ap-
parently states that these general ordinations may now
also be held on a Sunday or holyday of obligation, and
therefore a general ordination may be defined as one
which should " be held on the six Saturdays, but may
be transferred to another day for a grave reason. A
particular or special ordination is one held extra tempora,
i.e., outside the prescribed time. But can. 1006, § 3.
does not exclude the time-honored practice and view of
the school that general ordinations are really only those
held on the six Saturdays, because said canon only says,
ordinations for higher orders may be held on a Sun-
day or holyday of obligation. Therefore the bishop, to
say the least, would have to state clearly that an ordina-
tion to be held on any other day than one of the six
Saturdays, is a general one.
The reason why this must be made clear and mani-
fest lies in the compulsory presence of the canons or
clergy. For the Tridentine text *7 which has passed into
the Code, as well as several decisions of the S. Congrega-
tion/8 speak only of general ordination at which the
clergy must be present To such an ordination, if held in
the cathedral church, the bishop may call the canons un-
der threat of censures,48 If the ordination is held in some
MCfr. cc. a. 1. X. I. u: Trid.. 19. 17*8 (Richtcr. TriJ.. p. 184. n.
Sear 33. c. 8, Je ref. 1).
4T Z.. c. to Ibid., ad IX ; the canons should
4t S. C C, Aug. 2, 1727; June chant their office at auch a time
oogle
» % ,|r> Original from
UNIVERSITY OF WISCONSIN
CANON 1009 547
other prominent church of the diocese, the local clergy
should be present, for the sake of honoring the bishop and
out of respect for the sacred ceremony. But compulsory
presence cannot be read into the text. The Caeremoniale
Episcoporutn prescribes that the Blessed Sacrament
should be removed from the main altar, if preserved
there,60 during the ordination ceremony.
§ 2 is evident. Any reason may be called just which
the bishop considers to be such. By the chapel of the
episcopal residence is understood the oratory which bish-
ops, like cardinals, are allowed to have in their residence.
The domus episcopalis is the house in which the bishop
habitually resides, but the term is not to be interpreted
rigidly, as custom permits the bishop to make use, for
instance, of a summer residence.51 The religiose domus
is the one described in can. 488, 5.0, of our Code. Hence
we translate it with convent, viz.: a house which belongs
to any religious organization. By the name of seminary
may be understood the preparatory as well as the grand
(theological) seminary. The latter is the seminary par
excellence, of course ; but since the wording is general, the
term may be taken in its broadest sense. What is meant
by private oratories is explained in can. Ti88, § 2.
•a not to interfere with ordination; 61 Barbosa, De Officio <-.' Pottjtott
ibid, ad III. Epucopi, P. II, AHef. II, n. 24.
00 Lib. I, c. 12, n. 8 <Ed. Tjp.
Puttet, 1886, p. 47)-
oogle
k ,1,., Ori^inalfrom
UNIVERSITY OF WISCONSIN
■
p
CHAPTER VI
roster of ordinands and attestation of ordination
Can. ioio
c
S
§ I. Exp let a ordination e, noxnina singulorum ordina-
torum ac ministri ordinantis, locus et dies ordinationis
notentur in peculiari libro in Curia loci ordinationis
diligenter custodiendo, et omnia singularum ordina-
tionum documents accurate scrvcntur.
§ a. Singulis ordinatis detur authenticurn ordina-
tionis receptae testimonium ; qui, si ab Episcopo ex-
traneo cum litteris dimissoriis promoti fuerint, illud
proprio Ordinario exhibeant pro ordinationis adnota-
tione in speciali libro in archivo servanda.
After ordination the names of those who have been or-
dained, as well as that of the ordaining minister, to-
gether with the place and day of the ordination should
be entered in a special book, which must be carefully
kept in the court of the place of ordination. Besides,
all documents relating to the individual ordinations should
be carefully preserved.
Each one who has been ordained should be given an
authentic attestation of the order received. In case the
candidates were ordained by a strange bishop, with
dimissorials from their own ordinary, they must show
the certificate to the letter, in order that it may be regis-
tered in the special book to be kept in the archives.
"Curia loci ordinationis" may have a twofold mean-
ing: the diocesan court and the court of the place of
548
GO ;^IC
% ,| , Original from
UNIVERSITY OF WISCONSIN
CANON ion 549
ordination. That these two denominations are not en-
tirely identical is evident from can. 1009, § it which men-
tions, besides the cathedral, some other prominent church
of the diocese. Hence the obvious interpretation would
be that in the place of ordination a book should be kept
for the purpose of entering therein the names of the
ordinati, the ordinatis, and the place and date.
The Code, however, mentions another book to be kept
in the diocesan archives. This book is intended not
only for the ordinations performed by a strange bishop,
but also for the ordinations which the diocesan bishop
confers. Hence we may call it the Liber Ordinandorum
or Ordinationum. It may also serve the purpose men-
tioned in § 1, but the Curia of the place where ordina-
tion takes place would not on that account be excused
from keeping a separate record of its own.
Can. ioii
Praeterea loci Ordinarius, si agatur de ordinatis e
clero saeculari, aut Superior maior, si de religiosis or-
dinatis cum suis litteris dimissoriis, notitiam celebratae
ordinationis uniuscuiusque subdiaconi transmittal ad
parochum baptismi, qui id adnotet in suo baptizatorum
libro ad noraaam can. 470, § a.
In the case of the secular clergy the local Ordinary,
and in case of religious ordained with his dimissorials,
the religious superior must inform the pastor of the
church in which the ordinand was baptized of his ordina-
tion to subdeaconship, in order that said pastor may en-
ter the fact in the baptismal register.
The religious superior here mentioned is a superior
of exempt religious, because none other can give dimis-
sorials for sacred orders.
1 Original from
y^jOO^K. UNIVERSITY OF WISCONSIN
■
PROCEDURE IN ORDINATION CASES
(Lib. IV, Tit. 21)
For the sake of convenience and to complete the treatise
on ordinations, six canons from Book IV may here find
a place.
the competent court
Can. 1993
§ x. In causis quibus impugnantur obligations ex
sacra ordinatione contractae vel ipsa sacrae ordina-
tionis validitas, libcllus mitti debet ad Sacram Con*
gregationem de disciplina Sacramentorum vel, si or-
dinatio impugnetur ob defectum substantialem sacri
ritus, ad Sacram Congregationcm S. Officii; et Sacra
Congregatio definit utrum causa iudiciario ordine an
disciplinae tramite sit pertractanda.
§ 2. Si primum, Sacra Congregatio causam remit tit
ad tribunal dioecesis quae clerico propria fuit tempore
sacrae ordinationis, vel, si sacra ordinatio impugnetur
ob defectum substantialem sacri ritus, ad tribunal
dioecesis in qua ordinatio peracta fuit; pro gradibus
vero appellationis standum praescripto can. 1594-1601.
§ 3. Si alterum, ipsamet Sacra Congregatio quaes-
tionem dirimit, praevio processu informativo peracto
a tribunali Curiae competentis.
§ 1. If the obligations arising from sacred ordination,
or the validity of the ordination itself, are disputed, a
petition must be filed with the S. C. of Sacraments. If
55o
J-e
£ * ^ , ,L» Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1993 S5i
the validity is disputed because of a substantial defect in
the holy rites, the S. C. of the Holy Office is competent
and shall decide whether the case is to be tried in a ju-
diciary or disciplinary manner.
§ 2. If the judiciary form is chosen, the S. Congrega-
tion shall refer the case to the court of the diocese to
which the clergyman belonged at the time of his ordina-
tion, or, if the case turns about a substantial defect of
the holy rites of ordination, to the court of the diocese
in which he was ordained. As to the various instances
of appeal, canons 1 594-1601 must be observed.
§ 3. If the case is to be settled in the disciplinary way,
the S. Congregation itself shall render the decision, after
having received the necessary documents from the com-
petent diocesan court.
A petition may be filed to get rid of the obligations at-
tendant upon valid ordination, or to impugn the validity
of the ordination itself. In either case vis et metus
may be alleged. Yet even grave fear, as can. 264 says,
does not render an ordination invalid.
The validity of ordination may, however, be attacked
on another score; namely, because of lack of intention,
either in the person ordained or in the minister. How-
ever, as this defect is difficult to prove, the S. Con-
gregations are very reluctant to declare ordination in-
valid on that score, although they sometimes take the
obligations away. Here the S. C. Sac. is competent.
The question of validity is more readily answered
if the sacred rites can be proved to have been defective,
because the rites are outward and generally performed
in the presence of witnesses. In such cases the Holy
Office is competent, because the matter is connected with
faith and morals.
Either congregation has first to decide how the peti-
Q
>Ie
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
552 ECCLESIASTICAL THINGS
St
tion should be answered. Our text mentions two ways :
the disciplinary and the judiciary. The former belongs
strictly to the Roman congregations, because it concerns
the discipline of the Church. But this is not the only or
chief point of distinction between the two ways of set-
tling a question concerning ordination. Another, and
the principal one is the fact that an ordination is con-
tested by the person ordained or by a third party inter-
ested in the case. When no one is particularly inter-
ested, or the matter has no far-reaching cotisequences
in the sacramental discipline, the question is generally
settled hy the Congregation itself. A plenary session of
the Cardinals of the Congregation is required to give the
decisive vote, and very important matters furthermore
require the ratification of the Pope (Ssms. approvavit).
If either of the S. Congregations, namely, that of the
Sacraments or the Holy Office, declares in favor of the
judiciary way, the matter is referred to the S. R. Rota,1
which proceeds according to special norms. It may
be noted that neither the S. Congregation nor the S. R.
Rota easily pronounce in favor of the nullity of an ordina-
tion. The reason is that, with the exception of physical
compulsion, it is difficult to furnish convincing proofs.
In regard to dispensing from the obligation of celibacy
Cardinal Albitinus says of his time: When I was as-
sessor I saw several pontiffs dispense from celibacy in
favor of subdeacons, but hardly ever in favor of deacons,
and never in favor of priests, let alone bishops." * This,
we may safely say, is equally true to-day.
Diocesan courts are requested to note that the Apostolic
See always expects either a verdict or at least documents
1 Piu« X, "Sapient* consilio," n. 134: S. C. C, Jin. 15. July xa,
June 29, 1908 {A. Ap. S.. I, pp. IX, 17** (Richter, Trid., p. joj ff., n.
87 ff). a).
2 Dt Inconstant^ in Fidt, c. 36,
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 1993 553
relating to the case. A verdict or sentence is required
if the Roman tribunal is to take up the case. But ncr
verdict is to be given before the S. Congregation has noti-
fied the diocesan court that the case should be settled
ordine iudiciario. This must be expressly stated in the
document sent from Rome.
A noteworthy distinction is made in our text when it
says that if an ordination is impugned because of a sub-
stantial defect in the sacred rites (i.e.t the matter and
form of the Sacrament), the competent tribunal is the
court of the diocese in which the ordination was per-
formed. This is very logical and judicial, and we might
call the diocesan court forum competent ratione delicti.
But if the obligations or the validity of the ordination
are assailed, the competent court is the one of the diocese
to which the plaintiff belongs.
As to the various instances of appeal, the canons men-
tioned in our text should be observed. Can. 1597 says
the second instance is the metropolitan court. But this
does not preclude the plaintiff from appealing directly to
the Holy See.
For exempt religious the first instance is the provincial,
and the second the general, and the proper congregation
to appeal to is the S. C. Relig.
Note that if the case appertains to the Holy Office,
the religious superior may not interfere.
§ 3 refers to decisions rendered by the S. Congrega-
tion itself in the disciplinary way. Such a decision may
be couched either in the form of a solution of a doubt,
or a favor exempting from the obligations. The latter is
the more usual and the less expensive way. But even in
that case the diocesan court must furnish the necessary
documents (processus informationis)f i.e., the deposi-
tions of witnesses, the petition, and the recommendation of
§le
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
554 ECCLESIASTICAL THINGS
the Ordinary. No verdict must accompany these papers,
but the diocesan court may suggest or insinuate its opin-
ion.
the plaintiff
Can. 1994
§ 1. Valid it atem sacra e ordinationis accusare valet
clericus peraeque ac Ordinarius cui clericus subsit vel
in cuius dioeccsi ordinatus sit.
§ 2. Solus clericus, qui cxistimet se ex sacra ordina-
tione obligationes ordini adnexas non contraxisse,
potest declarationem nullitatis onerum petere.
The clergyman himself, as well as the Ordinary to
whom he is subject, or in whose diocese he was ordained,
may attack the validity of an ordination.
No one but the clergyman who thinks that he has not
contracted the obligations arising from sacred ordina-
tion, is entitled to ask for exemption from these obliga-
tions.
The two propositions are evident. The validity of
ordination touches the public good, as the Sacrament of
Orders is intended not so much for the individual cleric,
as for the Christian populace at large. The assumption
of the obligations involved is personal in recto, although
secretly benefiting in obliquo. Hence the validity of an
ordination may be attacked not only by the clergyman
directly concerned, but also by the Ordinary, whereas ex-
emption from the obligations of the clerical state may
be asked for only by the cleric himself.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANONS i995-*997 555
mode of procedure
Can. 1995
Ea omnia, quae turn in Sections Prima buius Partis,
turn in peculiar! titulo de processu in causis matrimon-
ialibus sunt dicta, servari etiam debent, congrua con-
gruis refercndo, in causis contra sacram ordinationem.
Can. 1996
Defensor vinculi sacrae ordinationis iisdem gaudet
iuribus iisdemque tenetur officiis quibus defensor vin-
culi matrimonialis.
These two canons enact the same rules for the trial
of cases concerning ordination which are laid down in
the first section of Book IV for matrimonial cases, as far
as they can be adapted for this purpose.
A novelty in Canon Law is the defender of the ordina-
tion tie, who, as can. 1996 rules, has the same rights and
duties as the defensor vinculi tnatrimonialis. There was
no text or papal constitution which demanded a defender
in ordination trials, though it was customary with the S.
Congregatio Concilii to employ a defensor as often as it
proceeded ordine iuris servato, i.e., in a judiciary way.
The rights and duties of the defender are laid down in
can. 1967-69 and have been explained in Vol. V of our
Commentary.
suspension pending the trial
Can. 1997
Quarnvis actio instituta fuerit non super ipsamet
sacrae ordinationis nullitate, sed super obligationibus
.'le
k ,| , Original from
UNIVERSITY OF WISCONSIN
556 ECCLESIASTICAL THINGS
□
tantum ex ipsa sacra ordinatione exsurgentibus, nihi-
lominus clericus est ad cautelam ab cxcrcitio ordinum
prohibcndus.
-.-
V
A clergyman who brings suit for the purpose of being
freed from the obligations arising from sacred ordination,
even though he does not attack its validity, is provisionally
suspended from the exercise of orders. This suspen-
sion or rather prohibition is not one in the strict sense
of the word, i.e., it is not penal, and consequently the cleric
affected by it would not become irregular if he were
illicitly to exercise the functions proper to his order.3
'■-.
two sentences required
Can. 1998
§ 1. Ut clericus liber sit ab obligationibus quae a
vinculo ordinationis manant, requiruntur duae sen-
tentiae conformes.
§ 2. Quod ad appellationem attinet, in his causis
scrventur praescripta can. 1986-1989 de causis matri
monialibus.
Two identic sentences are required to free a clergyman
from the obligations attached to sacred orders. Concern-
ing appeals, canons 1986-1989 must be observed.
As is evident from these few canons, a trial in the
proper sense of the word requires an appeal, which the
defender has to make when the nullity of an ordination
or freedom from its obligations has been declared. How-
ever, after the second court has ratified the sentence of
the first, the defender is not obliged to appeal unless he
is convinced, or morally certain (for absolute certainty
is neither required nor always possible), that the de-
8 S« can. 985, n. 7.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 1998 SS7
cisions rendered were wrong, or if there has been a
gross disregard of technicalities.
Having dealt v/ith the Sacraments as far as it seemed
necessary and opportune from the viewpoint of Canon
Law, we now add the Title on the Sacramentals, because
it is closely connected with the same subject.
G Original from
OOgliL UNIVERSITY OF WISCONSIN
■
TITLE VIII
the sacramentals1
definition
Can. i i 44
Sacramentalia sunt res aut actiones quibus Ecclesia,
in aliquam Sacramentorum imitationem, uti solet ad
obtinendos ex sua impetrationc effectus praescrtim
spirituales.
The Sacramentals are objects or actions resembling the
Sacraments which the Church makes use of by way of
intercession to obtain especially spiritual effects.
The word Sacramentals, it appears, was brought into
use by Alexander of Hales. The Sacramentals resemble
the Sacraments in this that they ordinarily consist of mat-
ter and form, or external signs which produce a spiritual
as well as a temporal effect, though the former is chiefly
intended. They differ from the Sacraments inasmuch as
they do not convey sanctifying grace nor produce their ef-
fects ex opere operato, but ex opere operands or through
the intercession of the Church. But there is another even
more important difference : unlike the Sacraments, the
Sacramentals, though traceable to remote antiquity, can-
not, as such, claim divine institution.
I See Arendt, S. J., De Sacramtntalibur, Rome i©oo; Pohle-Preuu.
Tht Sacraments, Vol. I, p. til ff.
oogle
k ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON U4S 559
institution, interpretation, change
Can. i 145
Nova Sacramentalia constituere aut reccpta authen-
tic interpretari, ex eisdem aliqua abolere aut mutare,
sola potest Sedes Apostolica.
The Apostolic See alone can institute Sacramentals,
authentically interpret those in use, or abolish or change
some of them.
This is not a dogma, as the Council of Trent* has
not defined this power directly, but only negatively de-
termined that the rites accompanying the administration
of the Sacraments may not be arbitrarily condemned,
omitted, or changed.
Our text claims the exclusive power of instituting
Sacramentals for the Holy See. This is not surprising
if we remember the general saying: Lex orandi, lex
credendi. The Sacramentals are the living expression of
the faith and hope that is in the Church. However, this
does not mean that no Sacramentals were instituted with-
out the concurrence of the Apostolic See. For more than
one of them, especially the rites surrounding the admin-
istration of Baptism, are undoubtedly of Apostolic origin.
This explains why the Holy See has consistently refused
to depart from such practices as anointings, spittle,
breathing, even among nations who were opposed to these
rites.8
The legislative and ministerial power of the Church
alone can declare which rites by their external sign
signify the blessing or favor that God wishes to bestow.
2 Sesa. 7. can. 13, it tact. Bened. XIV, " Omnium tollicitu-
s S. O., Sept. ia, 1645 d. a; dinum" Sept tf, i;.w. I U (.Colt.
March 34, 1656; Not. 13, 1669; P. F., tax. 114, ia6, 189, 347).
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
560 ECCLESIASTICAL THINGS
And it is the intercession of the Church which produces
the effects of Sacramentals. That the supreme power
invested in the Church is claimed for the Holy See does
not, of course, conflict with the idea that God is the erri-
cient cause.*
■
minister of the sacramentals
Can. i i 46
Legitimus Sacrarnentalium minister est clericus, cui
ad id potestas collata sit quique a competente auctori-
tate ecclesiastica non sit prohibitus eandem exercere.
The legitimate minister of the Sacramentals is any
clergyman duly empowered and not forbidden to exercise
his power by the competent ecclesiastical authority.
The general rule is that the minister of a Sacramental
is the priest, although it is quite true that the sacerdotal
character is not required for all Sacramentals.8 What
is absolutely necessary is power granted by the Church,
because the latter by her intercession obtains the effects.
Another requirement is the clerical state. Therefore a
lay catechist cannot administer a Sacramental, for in-
stance, bless a corpse or grave." Much less is a woman,
even though she be an abbess, entitled to function as min-
ister of the Sacramentals. Hence the blessings of female
religious superiors cannot be Sacramentals in the proper
sense of the word.7
The power is withdrawn from the legitimate minister
by complete suspension from office or excommunication,
or the personal interdict.8
• Somewhat confused is Arendt's S S. Rit. C, July 5. iBqj iColL
argumentation, I c, p. 385. P. F., n. 1801).
B/?ii. /,'„.,■., lit. 'III. c. 1, n. 1; ■' Ai cn.it, I, c„ p. 390, n. j«j:
Pont. Rom,, " De Ordmatiortt mrro oratio tt gratiantm actio.
Prtsbytr •Cfr. can. 2260, M7$.
jle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1 147 561
o
diverse consecrations and blessings
Can. 1 147
§ 1. Consecrationes nemo qui characters episcopal!
carcat, valide peragere potest, nisi vel iure vel apos-
tolico indulto id ei permittatur.
§a. Benedictiones autem impertire potest quilibet
presbyter, exceptis iis quae Romano Pontifici aut Epis-
copis aliisve reserventur.
§ 3. Benedictio reservata quae a presbytero detur
sine necessaria licentia, illicita est, sed valida. nisi in
reservatione Sedes Apostolica aliud expresserit.
§ 4. Diaconi et lectores illas tantum valide et licite
benedictiones dare possunt, quae ipsis expresse a iure
permittuntur.
§ 1. No one who lacks the episcopal character can
validly perform consecrations, unless he is allowed to do
so by law or in virtue of an Apostolic indult.
A consecration is a blessing accompanied by anointing
with holy oils, e.g., of a church, an altar, a chalice and
paten, a bell, etc. To perform such a consecration val-
idly requires either the episcopal character, or a grant by
law or papal indult. Consequently:
(a) All bishops may validly consecrate the objects
mentioned above; but a titular bishop needs the prnuV
sion or consent of the local Ordinary.9
(b) Cardinals may by law consecrate churches, altar?,
and sacred vessels anywhere, with the consent of the
local Ordinary.10 The same applies to vicars Apostolic
and prefects Apostolic, even though they are not conse-
crated bishops, as well as to proprefects and p-ovicars,
who may consecrate chalices, patens, and portable altars
• Can. 1157. 10 Con. 339, I i, n. 20; can. 1157.
■■dbyC- ^Ic
j ^ " riginal from
UNIVERSITY OF WISCONSIN
562 ECCLESIASTICAL THINGS
%
within the boundaries of their territory and during their
term of office.11
a
By law, finally, abbots or prelates nullius may conse-
crate sacred vessels, churches, and altars, portable as
well as immovable.12
(c) By apostolic indult all those may consecrate who
have obtained the privilege directly and not by way of
communication.
What about governing abbotsf Our answer to this
question is given in Vol. Ill, p. 353. A decree of the
S. Rit. C, Sept. 27, 1659, as weU ** other decrees state
that abbots who, according to can. 625, enjoy the right
to use pontificals, provided they arc abbates regitninis (to
the exclusion therefore of titular abbots) may bless
bells, chalices, and similar objects in which anointments
are used, but only for the use of their own churches.1*
Nothing is said of altars, nor was this privilege ever in-
cluded in the general grant ; " it was not even given to
chorepiscopi,18 because consecration has always been con-
sidered a strictly episcopal function.18 If the privilege
has been directly granted to some order or congregation,
it is indeed not taken away by the present code, but
it remains to be seen whether communicated privileges
will stand the test when they are brought up for exam-
ination. Here another decision may find a place. The
Primate of Hungary had asked the S. Congregation
whether in cities far removed from the episcopal resi-
dence, which have a bell-foundry, one of the dignitaries
11 Can. 294, I 2; can. jio, | a. Sums in the Tyrol; S. Rit. C, May
12 Can. jtj. 16. 1744 (Doc. Auth., n. jjw)
UDee. Auth., 1 133, n. XIX; S. 14 Benedict XIV, "Ex fair pr+
Rit. C, Aug. fit 1737. referring to eibut," Nov. 16, 1748.
■ decree of Sept 27, 1659. «T«: " C. 4. DUt. 68.
"In dtcitu #f amplius {non pro- 10 C 1, Dirt. 25; cc. a, 9. »>,
*<mof«r) " for the CUtercians of it, Dial I, de Conaccr.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
a
N
CANON 1 147 563
of the chapter or a prelate may be delegated to bless bells
without anointing. The answer was, No, if the bells are
intended for the use of churches and for announcing
sacred functions.11
§ 2. Any priest may perform blessings which are not
reserved to the Roman Pontiff, to the bishops, or to
others.
§ 3. The blessing given by a priest, if given without
the necessary permission, though reserved, is valid, but il-
licit, unless the Apostolic See has added an invalidating
clause in the reservation.
Blessings reserved to the Pope are: those of the
pallium, the Agnus Dei, the Golden Rose, and the swords
of princes.18 Blessings reserved to bishops are: the
blessing of abbots, the consecration of virgins, the bless-
ing of holy oils and chrism, the dedication of churches,
the consecration of altars and sacred vessels (not vest-
ments), the blessing of bells. These blessings are prop-
erly called reserved.19
Blessings reserved to others are those reserved to the
pastor, as stated in can. 462.
The benedictio mulieris post partum is not a stricdy
parochial right, but may be imparted by any priest in any
church or public oratory.10
Blessings reserved to religious orders and congrega-
tions are those contained in the appendix of the typical
edition of the Roman Ritual.21
Not reserved are the blessings mentioned in the same
ITS. Rit C, May 9, 1857 tf>«. Rit Rom., tit. VIII, cc ao-ai; but
Auth., n. 3043). cc. ao-aa are no longer reserved.
18 Van der Stappen, S. Liturgit, 20 S. Rit. C, Nov. jo, 1893. *<* n
Vol. IV, p. 34J ff. {Dec. Aulh., n. 3813).
10 We refer the reader to what 21 Ed. Puitet, igij, p. 9$.
will be aaid in Vol. VZ and to the
>Ie
Original from
UNIVERSITY OF WISCONSIN
564 ECCLESIASTICAL THINGS
Ritual under title VIII, c. 1-19, and in the Appendix
under : " Benedictiones Non Reservaiae" n Any priest
may give these.
Observe that neither bishops nor vicars general are
entitled to grant faculties to priests to impart all the bless-
ings described as reserved in the Roman Ritual, and in
which no anointment is employed. This would exceed
their ordinary or customary power." Nor may bishops,
without an Apostolic indult, impart or delegate other
priests to impart the blessings reserved to religious or-
ders." But if reservation is not explicitly accompanied
by an invalidating clause, a blessing given without per-
mission is valid, though illicit. An invalidating clause
would be : " aliter non vaicant" or one expressed by a
conditional apposition, or in the form of an ablative abso-
lute. Therefore the rescripts must be carefully read.
The clause, " de consensu tamen Ordinarii loci," necessi-
tates the (at least presumed) consent of the Ordinary
for the valid use of the faculties. If only the words, " de
consensu Ordinarii," without the additional "loci" are
found in the rescript, the consent of the religious supe-
rior is sufficient for exempt religious, even though the
clause contains the former formula, " de consensu
Ordinarii loci," provided the faculty is to be used only
for the convent, not for a public church or public ora-
tory."
§ 4. Deacons and lectors may validly and licitly per-
form only such blessings as are allowed them by law.
When a deacon confers solemn Baptism, he is not allowed
to bless the salt and water.28 Hence these must be blessed
.1 .—*■;■« +!.„ fnMM%n- *•- *
22 Ibid., p. aao-233; App., p. 28 See can. 198; Putzer, Comment.
26-71. in Foe. Ap., p. 74, n. 54.
28 S. Rit C, April 2, 187s (Dec. 20 S. Rit. C, Feb. 10, 1888 (Ore.
Auth.. n. 3343). Auth., n. 3684).
MS. Rit. C, Dec. a, 1884 (Dec.
Auth., n. 3533).
io< >gle
C* -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 1148 565
a
Q
for the purpose by the pastor or another priest. A dea-
con '» not allowed, even though he has the permission
of the parish priest, to bless houses on Holy Saturday
with stole and surplice.27 Although, if a priest can be
had, a deacon is not allowed to accompany the funeral
and bless the grave," yet if no priest is at hand, and the
Ordinary grants permission, a deacon may perform the
funeral service, especially in private houses.20 A right
peculiar to deacons is the solemn blessing of the Easter
Candle, after the five grains of incense have been blessed
by a priest.
RITES TO BE OBSERVED
D
Can. 1 148
§ x. In Sacramentalibus conficiendis seu adminis-
trandis accurate serventur ritus ab Ecclesia probati.
§ 2. Consecrationes ac benedictiones sive consti-
tutivae sive invocativae invalidae sunt, si adhibita non
fuerit formula ab Ecclesia praescripta.
In performing or administering Sacramentals, the rites
approved by the Church must be carefully observed.
Consecrations and blessings, those called constitutive, as
well as those called invocative, are invalid if the formulas
prescribed by the Church have not been employed.
Constitutive consecrations or blessings are those by
which persons or objects are dedicated to the ministry or
service of God or religion and become permanently sepa-
rated from profane use, having received, as it were, a
higher or sacred existence.30 Thus, for instance, persons
Q
« S. Rit. C, Aug. 8, 1835 {ibid., ao S. Rit. C, Aug. 14. i«5«
o. 27, 29). {ibid., n. 3074)-
28 S. Rit. C.f Sept. IX, 1847, *d. ao Van der Siappen, /. c, IV, p.
10 (.ibid., n. 29, 51). 340, d. 321; Reg. Juris }t in 6".
ogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
566 ECCLESIASTICAL THINGS
St
o>
become sacred by a blessing, as abbots and consecrated
virgins.31 Material objects, such as churches, chalices,
and cemeteries, become sacred by being blessed and are
withdrawn from common or profane use.
Invocative blessings are intended to confer a spiritual
or temporal favor, through the bounty of God, upon per-
sons or objects, without, however, changing their condi-
tion or natural state. Thus, e. g., the nuptial blessing is
given to a person, women are " churched," machines,
ships, etc., are blessed, and so forth.
For most of these blessings the Church has prescribed
certain rites or formulas, which are all contained in the
Roman Ritual, and should be carefully and accurately fol-
lowed, without any admixture of frivolous ceremonies or
the use of unsuitable objects.82 This applies especially
to the prayers prescribed for exorcisms. Stole and sur-
plice are prescribed for most of these blessings. Those
who have the privilege of wearing the rochette may use
it, together with the surplice and stole.83 The priest who
imparts the general absolution to secular Tertiaries —
and we suppose also to Oblates of St. Benedict — must
use the purple stole.3*
■■■
subject of sacramentals
Can. i 149
Benedictiones, imprimis impertiendae catholicis,
dari quoque possunt catechumenis, imo, nisi obstet
Ecclesiae prohibitio, etiarn acatholicis ad obtinendura
fidei lumen vel, una cum illo, corporis sanitatem.
81 The consecratio virginum is >3 S. R it. C, March n, 1871,
only imparted to monialts with ad II; July 11, 1892, ad I et II
solemn vows, and is, as far as we (Dec. Auth., nn. 3*37. 37S4).
know, not customary in our country. 84 S. Kit. C. Dec. iz, 1903
32 Benedict XIV. " Sollicitudini," (ibid., n. 4176).
Oct 1, 1745. i 43.
*Ie
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
-
CANON 1150 567
Blessings are to be bestowed chiefly upon Catholics;
they may also be given to catechumens, and, unless the
Church prohibits it, to non-Catholics in order to obtain
for them the light of faith, or, together with it, bodily
health.
Concerning the blessings which may be given to non-
Catholics note that these persons should be instructed not
to expect an absolutely sure effect from the use of them.
Any superstition based on the number of words employed,
or the kind of paper on which they are written, or some
special hour must be discountenanced." Relics or ob-
jects touched with the holy oils must not be left in the
hands of unbelievers." Priests may also bless the houses
of schismatics or non-Catholics."7 Non-Catholics may
be admitted to public blessings, for instance, to receive
candles, ashes, palms, etc.38
effect of constitutive blessings
Can. 1 1 50
Res consecratae, vel benedictae constitutiva bene-
dictione, reverenter tractentur neque ad usum pro-
fanum vel non proprium adhibeantur, etiamsi in dorn-
inio privatorum sint
Objects consecrated or blessed by a constitutive bless-
ing should be treated reverently, and not be used for
profane or foreign purposes, even though they may be
in the possession of private persons.
This is true especially of churches, chapels, sacred
vessels, and vestments, as will be seen under the proper
heading.
toS. O., Dec. ii, 1749 iCoU. F. 87 S. C P. F., April 17, i7S*
F„ n. 374). (*•** n- 4">-
ao S. O., Aug. 11, 1768 (ibid, n MS. Hit. C, March 9. "9«9
46«). iSphnmidu Lit., Vol. j j, p. 771).
*Ie
Original fro ni
UNIVERSITY OF WISCONSIN
N
■
568 ECCLESIASTICAL THINGS
exorcisms
Can. 1151
§ 1. Nemo, potestate exorcizandi praeditus, exorcis-
mos in obsessos proferre legitime potest, nisi ab Or-
dinario peculiarem et expressam licentiam obtinuerit
§ 2. Haec licentia ab Ordinario concedatur tantum-
modo sacerdoti pietate, prudeatia ac vitae integritate
praedito ; qui ad exorcisraos nc procedat, nisi postquam
diligenti prudentique investigations compererit exor-
cizandum esse revera a daemone obsessum.
Can. 1152
Exorcismi a legitimis ministris fieri possum non
solum in fidcles et catechumenos, sed ctiam in acatho-
licos vel excommunicatos.
Can. 1153
Ministri exorcismorum qui occurrunt in baptismo et
in consecrationibus vel benedictionibus, sunt iidem qui
eorundem sacrorum rituum legitimi ministri sunt
These three canons deal with exorcisms. That the in-
fluence of demons over men is real, Holy Writ abundantly
proves, most particularly the Gospel of St. Mark. But
no less do historical documents prove the power of the
Church over the spirits of darkness. The activity of the
latter explains not only the peculiar charisma, but also
the development of the exorcistate in the Latin and the
lectorate in the Oriental Church during the third century.
Early writers recommend the invocation of the name of
Jesus of Nazareth, warn against unnecessary and curious
questioning of the demons, and recommend fasting and
G I Originalfrom
OU^IC UNIVERSITY QFWI5C0NSIN
-
■
pi
CANON 1 153 569
prayer. As to the rites or ceremonies the same writers
mention exsuMatio, laying on of hands, and reading por-
tions of Holy Writ. Classes of obsessed or possessed
were distinguished and a special discipline for energumeni
was developed.30
Our Code says that no one who is endowed with the
faculty or power of exorcizing, is allowed to pronounce
an exorcism over a possessed person unless he has ob-
tained special and express permission to do so from the
Ordinary. The Ordinary may grant this permission only
to such priests as are distinguished for their piety, pru-
dence, and integrity of life. No priest shall pronounce
an exorcism until he has by a careful and prudent inves-
tigation ascertained the fact of real obsession.
The Ordinary who is to give this permission is the one
in whose diocese the exorcism is to take place, or the
one to whom the priest is subject. For exempt religious
he is the immediate superior major, for the text simply
says: Ordinarius. That the exorcising priest should be
irreproachable and endowed with the necessary qualities
follows from the astuteness of the demons and the awful
task laid upon the exorcist. The text employs the term
obsessos, but we hardly believe that it means only those
obsessed by demons in the strict sense of that term, 1. e.,
attacked bodily from without, but includes possession,
i. e.f control of man's body from within.40 A conscien-
tious medical expert should be consulted before exorcism
is decided upon.
Exorcisms, continues the Code, may be pronounced not
only over faithful Catholics and catechumens, but also
over non-Catholics 41 and excommunicated persons. The
80 Cfr. Wieland, DU Gtnttisch* 40 See Cath. Bncyc!., a. v. " Poi-
Enlxoicklung dtr tog. Ordxnes session " (Vol. XII, 315 f.).
Minor**, 1897, p. 114 iT. , Arendt, *i S. O., Sept. 17, 1681 (Coll.
I. C, p. 347 ff- **• F-> »■ «5)-
ogle
Original fro ni
UNIVERSITY OF WISCONSIN
57o ECCLESIASTICAL THINGS
ministers of the exorcisms employed in Baptism, conse-
crations and blessings, are the same persons who adminis-
ter these sacred rites. Hence for these cases no special
permission from the Ordinary is required.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
■
w
Q
P
(-
<
•J
•
_
J3
§
•a
M
V
•a
*
2
•
00
u
-a
&
o
8
■3
1
*f* ui T'. -)■• >• h ., - - - _ mm (i »i ^^ r% ««■ ^
3
J3
flNNNnnn •■» bn»«»«nh!i
o
M
in
B
■B
•
a
4
M
-CO * O Q»- »n»n-. KWVN/Mfl- BJtWIO »- *oc •■ «
M
4
oq«o no »o «»o«™ m«rt *woiN»no o»o ««coo o>
VV**nWt>n- NODN Ml -r -r -r "i -r v v -r -t
•
0
i
Q («. - -i •• '» «OnqO»tO- *•«) •** M m "> *•■ 0» 0<»
r-i " i —i .-i — i '-, a 1-5 — in «im*n«inrin"i',inn
fH
o
M
i
n OeC< vro r-.- w>~ wiOQao wip *o f>.v>m*oOO 0 H N
S
5
D
O
-•>
a
J3
Mnni--<i »noo N%oooaownoo«n ■• m « *%o *■» r*
« m n r» r< n « ri NnfinnciciNBdiifiiii'tmN
o
X
a
n
B
■*>— QUO(\hi(DO -i-J Q ■ ■■ OSOMI QSNrMB Q M ~i "»
.-, m -< ~ - - - •« '■< ■• n '-i «^ "< " *t f< - - - H* N«N
■
o
B*
■a
-1 _ ... -•<NnnNN-*->_»-_HHnt«
Ml
E
43
C* ts Ml 'f "5 '- ") **o « o - - o **o ao *o n "> **o KOO 00
0
O
B
B
•0»rtf>i« .- o o- n«ne N*»*0 ♦•»« o 0 m « «-i«/i*0>o
o
0
■j 1/1 -i - Q 0 O - r. ♦ Mltfi »C Mftt" O 0 O « MWUCO
U
Q
«<o -w«t^»«©«'OM»no »^o * <* -i os moo ikhn
1 ft f 9 = 5 1 1 | g §
57'
od by GoOgle
Original from
UNIVERSITY OF WISCONSIN
572 APPENDIX II
%
a
r.
r.
-■
2
Can. 816
unleavened or leavened bread*
■
In Missae celebratione sacerdos, secundum proprium
rituin, debet pan cm azymum vel fcrmcntatiun adhibcrc
ubicunquc Sacrum litet.
This canon recalls part of the history of the Eastern
Schism begun under Photius (IXth century) and com-
pleted under Michael Caerularius (Xlth century), the
latter of whom styled the Latins M Azymites " because they
used unleavened bread for the Holy Eucharist. It is
certain that unleavened bread was commonly used in the
Western, or rather Latin, Church since the ninth century,
and that the Churches of the Latin Rite made use of such
bread also at Constantinople, where the controversy be-
came accentuated under the Patriarch Michael.1 The
question whether leavened or unleavened bread should be
employed for the Holy Eucharist affected every attempt
at rc-union between the Latin and the Greek Church, al-
though there was no dogma directly involved. Indirectly,
indeed, an article of faith is implied, inasmuch, namely,
as the Greeks and all Orientals who make use of leavened
l See Heroic. Concilitngetchichtr, edict XIV {Dm Stcrif. Missa*. 1. II.
IV, 733 i.\ Hcrgenr other, Photius, c. 10, n. 8). It depends on whether
III, 727 ff; Cath. Encycl., 11, 172. Christ died on the 14th or the 15th
The hi storico -critical question con- of Nisan; for on the latter day the
c
cerning the dogmatical point at is- observance of the azymes began;
sue is whether Christ celebrated the Smith-Cheetham. Dietionorj mf
Last, respectively the Eucharistic, Christian Antiquitirs, 1893, Vol. II,
Supper with unfermented bread. 601 i. ; VaJitutti, Chronology of the
This is confidently asserted by Ben- Lift of Christ, 1918.
* By an overiight this canon was not inserted in it* proper pi
sd by GoOgle
I , Original from
UNIVERSITY OF WISCONSIN
APPENDIX II 573
bread must believe that leavened as well as unleavened
bread is valid matter for the Sacrament.* This article of
faith, of course, also concerns the Latins, suo modo. But
in order not to mix up the different rites, the Church has,
ever since the fight became acute, insisted that each
Church should follow its own rite, provided only that the
belief stated above was firmly held. At the same time
the Popes always demanded that the Greeks should every-
where use the bread prescribed by their rite, i. e.t leavened
bread, and that the Latins should everywhere use un-
leavened bread, as prescribed by their rite.3 This is what
our canon states when it says that the priest in the Holy
Sacrifice of the Mass, wherever he says Mass, must use
either unleavened or leavened bread, according as his rite
prescribes. The obligation is gravis* Since this matter
plays quite a conspicuous part in the Oriental Churches,
the S. Congregation of the Propaganda has laid down a
rule for those of the Oriental Church who wish to be
transferred from one Oriental rite to another Oriental
rite. If the transfer concerns a change from a rite with
unleavened bread to a rite with leavened bread, an Apos-
tolic indult is required. Therefore, if a Melchite, a Copt,
a Syrian or a Chaldaean wishes to be transferred to the
Armenian or Maronite rite, he needs an indult of the
Holy See (S. C. pro Ecclesia Orientali, can. 257). But
where no such difference exists, the two bishops (a quo
2 Benedict XIV, " Etsi pastoratis." * 4 Constit. cit., I. c, enforced it un-
May j6, 1742, | I, n. II; " Allatae der penalty of perpetual suspension.
sunt," July 36, 1755. i 23; " Nuper Lehmkuhl, II, n. iai, 3. aaya: "A
ad nos," Mar. 16, 1743. I 5- The quo ipraecepto] vis ulla ratio un-
Armeniam and Marorite*. like the 411am exeuiat, erceptA necessitate
Latins, use unleavened bread; " Al- complendi sacrijicium, si ponis ad-
Imtoe," I 13; S. C. P. F., July 31, kibituj deprehenditur corrupt**, ne-
xooa, n. 1 (n. 2149). que alius funis, qualem ritus re-
■
■ " Etsi pastoratis," | VI, n. X. quirit, potest kaberi"
gle
Original fro m
UNIVERSITY OF WISCONSIN
574 APPENDIX II
and ad qutm) can settle the transfer.* This canon does
not, of course, do away with special privileges or tem-
porary papal indults*
■ S. C. P. P., No*, ao. 1838 Greek College are permitted to wr
(Coll., n. 878). But the decree mj* Mam in the Greek or Latin Rite;
nothing concerning a transfer from this privilege had already been
■a Orient*! to the Latin Rite. granted formerly to other colleges;
• Thug the Benedictines of the tee Bcncd. XIV, " Allatie," | jo.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
G I Original from
OU^IL UNIVERSITY 0FWI5C0NSIN
aioi7iiaiaa
B89097198188A
jle
Original fro ni
UNIVERSITY OF WISCONSIN
-
*„ 1
■
pi
""'YftMYflFW1
■ —
DN5IN
■
pi
■ :
A COMMENTARY
CANON LAW
Original from
UNIVERSITY OF WISCONSIN
■
pi
library
otfte
{Hnfoeraitp of 3&tefontfin
►ogle
university of wis cor
I
i
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
i {^ v il/> Original from
odby^OOgie UNIVERSITY OF WISC0Nc
in
A COMMENTARY ON
THE NEW
CODE OF CANON LAW
By THE REV. P. CHAS. AUGUSTINE, O.S.B., D.D.
Proftuor of Canon Laiv
■
Book III
De Rebus, or Administrative Law
Volume V
Marriage Law (can. 1012-1143)
Matrimonial Trials (can. 1960-1992)
■SECOND, REVISED EDITION
:
R HERDER BOOK CO.
17 South Broadway, St. Louis, Ma
AND
68 Great Russell St. London, W. C.
1920
*Ie
k ,|,, Original from
UNIVERSITY OF WISCONSIN
Cum Permissu Superiorum
NIHIL OBSTAT
SH, Ludovici, die 14. Jan. 1920.
F. G, Holwtck,
■
9
Censor Librorum
IMPRIMATUR
Sti. Ludovici, die 15. Jan. 1920.
>J* Joannes J. Glennon,
Archiepiscopus
Sti. Ludovici
E
Copyright, 1920
by
Joseph Gummersbach
All rights reserved
■ <
r.
Printed in U. S. A.
VMi-Muou comwwt
_
pIRflHAMTO* *■» ■•» *■■■
ioi >gle
i"~* -» vmlrt Original from
UNIVERSITY OF WISCONSIN
CQ
587681
£12
s
FOREWORD
">
1
This Volume of our Commentary (the fifth) is pub-
lished before Volume Four because of the great practical
importance of the matrimonial law and because some of
f-^ my clerical friends strongly urged that it be issued as
ji soon as possible.
We have added the canons from Book IV treating of
* Matrimonial Trials," not with the intention of correct-
ing the logical order of the Code, but solely for the sake
of convenience. This will, we believe, be appreciated
especially by those who have to occupy themselves fre-
quently with matrimonial matters, — we mean the diocesan
court officials.
A word concerning the sources. The reader may per-
haps be surprised at not finding a large array of secondary
sources, i.e., authors cited. There were two reasons
which prompted moderation in this respect. The first is
that we have given prominence to the primary sources as
quoted by Cardinal Gasparri, which we have consulted
and made discreet use of. The other reason is a practical
one. The English reader does not care to cast his eyes
to the bottom of the page for every assertion in the text,
and we did not deem it proper to swell the bulk of the
book with endless quotations.
For the rest the authors chiefly used have been men-
tioned among the literary sources.
Conception, Mo., Jan. 14, 1919.
>gle
Original from
UNIVERSITY OF WISCONSIN
jle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
TABLE OF CONTENTS
PAGE
PRELIMINARY REMARKS i
COMMENTARY n
Title VII. Matrimony n
End and Properties of Marriage 16
Favor Iuris 19
Species of Marriage 20
The Law of Marriage 32
Competence of the Civil Authority 27
Betrothal or Engagement 34
Instructions on Marriage . 49
Cfl. I, The Preliminaries of Matrimony, and Espe-
cially the Banns 51
The Bridal Examination (Instructio Sponsorum) . . 52
The Banns 56
The Pastor 57
Time and Place of Publication 60
Obligation of the Faithful to Divulge Impediments . 63
Dispensation from the Banns ........ 64
Ascertaining of the Free Status 70
Consent of Parents 79
Ch. II. Impediments in General 81
General Principle 82
Prohibitive and Diriment Impediments 83
Public and Occult Impediments 84
The Supreme Ecclesiastical Authority 85
The Power of Ordinaries 87
The Power of Establishing Impediments .... 90
Custom Powerless to Establish Impediments ... 92
Classification of Impediments 93
List of Impediments 94
Dispensations 95
V
"-.
oogle
^ ,|,, Original fro m
UNIVERSITY OF WISCONSIN
vi CONTENTS
PAGE
Power of Dispensing: Granted to Ordinaries in Case
of Danger of Death 96
Powers Granted to Priests 102
Casus Perf>lexus 105
Dispensations to be Reported and Recorded . . . 109
Dispensations for the Internal Forum no
Faculties of Ordinaries 112
Faculties of the Ordinaries of the U. S. and Great
Britain 1 13.
Cumulative Faculties 115
Concurrence of Dispensable and Indispensable Impedi-
ments 118
Legitimation of Children 119
Error in Dispensation 120
Implied Dispensation from the Impediment of Crime 122
Reasons for Dispensations .... - 124
Execution of Dispensations 128
Charges for Dispensations by Rescript 130
Mention of Delegation When Dispensing .... 134
Ch. III. Prohibitive Impediments 135
Vows . 135
Dispensation from Vows 139
Legal Adoption 140
Mixed Religion 141
Conditions under Which Mixed Marriages May Be
Permitted 147
Conversion of the Non-Catholic Party 149
Non-Catholic Ministers Excluded 149
Duties of Pastors 153
Marriages with Indifferentists Discouraged . . . K54
Public Sin and Censure 157
Ch. IV. Diriment Impediments 162
Age 162
Impotency 164
Ligomen or Bond of a Previous Marriage .... 173
Disparity of Worship 179
Sacred Orders 187
Religious Profession 189
Abduction (Raptus) 192
oogle
% .J,., Original from
UNIVERSITY OF WISCONSIN
■
pi
CONTENTS vii
PAG1
Crime 195
Consanguinity 200
Extent of Consanguinity 201
Lines and Degrees 203
Multiplication of Relationships 206
Affinity 208
Public Propriety 213
Spiritual Relationship 214
Legal Adoption 217
s
Ch. V. Matrimonial Consent 222
The Consent Itself .222
Error — Servitude 231
Error as to the Nature of Marriage ...... 235
Internal and External Consent 239
Violence and Fear (Vis et Metus) 243
Mode of Expressing the Consent 249
Marriage by Proxy 250
Conditional Marriage 253
Continuance of the Consent 262
.
Ch. VI. Form of Celebrating Marriage 265
Historical Note 265
Tridentine Discipline 267
Present Legislation Concerning the Valid Form of
Marriage 270
Requisites of Formal Validity 271
Requisites on the Part of Pastor and Ordinary . . 275
Requisites of Delegation 282
Requisites of Licit Assistance 286
Two Special Cases 293
Extent of the Law with Regard to the Form of Mar-
riage 296
Marriage Rites 3°4
The Catholic Marriage Rite 305
Ceremony for Mixed Marriages 3°&
Recording Marriages 3"
Ch. VII. Marriage of Conscience 315
Ch. VIII. Time and Place of Marriage Ceremonies . 319
The Time 3*9
'■-.
jle
j , Original from
UNIVERSITY OF WISCONSIN
viii CONTENTS
PAC*
The Place 321
Ch IX. The Efffcts of Marriage 324
Mutual Rights and Duties 325
Rights of the Wife 3*9
Duties of Parents towards Their Children .... 330
Legitimacy of Children 33'
Legitimation of Children 335
■
Ch. X. Separation of Married Couples 339
s
Art. i. Dissolution of the Matrimonial Bond . . 339
Ratified and Consummated Marriages Indissoluble . 330
Matrimonium Ratutn 341
The Pauline Privilege 346
Nature of the Pauline Privilege 348
Character and Necessity of Interpellation .... 352
Mode of Interpellation 354
Effect of Interpellation 35&
Three Papal Constitutions 360
Former Marriage Dissolved 365
Presumption in Doubtful Cases 367
Art. 2. Separation as to Bed, Board, and Dwelling-
Place 369
Adultery a Cause of Separation 370
Taking Back the Guilty Partner 374
Other Causes for Separation 376
Education of Children 378
Ch. XT. Revalidation of Marriage 379
Art. i. Simple Revalidation 380
Nature of Revalidation 380
Mode of Renewal after the Impediment is Removed . 384
Marriage Null for Want of Consent 386
Marriage Null for Want of the Requisite Form . . 388
Art. 2. Revalidation in Radice 389
Nature of the Sanatio 380
When a Sanatio in Radice is Possible 39*
When Renewal of Consent is Impossible .... 394
By Whom a Sanatio May Be Granted 39G
jle
( * -» ^ -»!,■. Original fro ni
UNIVERSITY OF V,'15CON5IN
■
pi
CONTENTS ix
PACE
Ch. XII. Second Marriages 397
MATRIMONIAL TRIALS (Book IV, Title XX, Can. 1960-
1992) 4«>
Title XX 400
Ch. I. The Competent Court 400
Competency of the Church 400
The Roman Court 404
The Diocesan Court , 406
Want of Consent 409
Ch. II. Constitution of the Tribunal 411
The Judge 411
The Defensor Vinculi 412
Duties of the Defensor 412
Rights of the Defensor 413
Ch. III. Who May Attack Marriages and Ask for a
Dispensation from a Ratified Marriage . . , 416
Who May Be Plaintiff 416
Accusation post Mortem 420
Ch. IV. Legal Proceedings 422
Witnesses 422
Testimonium Septimae Manus 422
Bodily Inspection 424
Ch. V. Publication of the Acts — Close of Trial —
Sentence 428
Ch. VI. Appeals 432
Ch. VII. Cases Excepted from the Preceding Rules . 435
APPENDIX I. SOME SPECIMEN PETITIONS FOR
MATRIMONIAL DISPENSATIONS .... 440
For Mixed Marriages or Disparity of Worship . . 440
Pro Sanatione in Radice 440
Double Impediment 441
For a Sanatio in Radiee to the S. Poenitentiaria . . 44r
APPENDIX II. (Table Illustrating Can. 1099, §2, p. 303) 443
oogle
v ,1,., Original fro ni
■ UNIVERSITY OF WISCONSIN
a
x CONTENTS
PAOB
APPENDIX III. 445
APPENDIX IV. 447
APPENDIX V 450
G I Originalfrom
UOglC UNIVERSITY 0FWI5C0NSIN
■
pi
THE NEW CODE OF
CANON LAW
THE LAW OF MARRIAGE
PRELIMINARY REMARKS
Marriage, from the medieval Latin word maritaticum
(old French mariage), corresponds to the old Latin matrt-
tnoniutn, and signifies, in general, the union of man and
woman for the purpose of procreation. This indicates
the original and primary end of marriage; the difference
of sex is the foundation of procreation and union is the
source of generation. However this union is one of pe-
culiar character and properties, and has been acknowl-
edged as such by the long-standing tradition of mankind.
It is not merely a mating of male and female, but a union
based upon consent, such as only a human being is capable
of giving.
We do not intend to enter upon an ethnographical or
anthropological study of matrimony * or to relate the vicis-
situdes which it underwent among the Hebrews, Greeks,
and Romans. True, Church Law has borrowed impedi-
ments from the Sacred Writings of the Chosen People *
and also embodied Roman laws in its Code.8 Yet, in
1 The literature may be consulted a For ioataoce, the impediments
in the Catkolie Encyclopedia, Vol. of consanguinity and mixed religion.
IX, 6oj (by Prof. J. Ryan), and in » The impediment of adoption in
the N*9 International Encyclopedia, based on that law.
■oca. Vol. XIII, 66 ff.
§le
Original fro ni
UNIVERSITY OF WISCONSIN
a PRELIMINARY REMARKS
St
spite of these borrowings, Christian, more specifically,
Catholic Marriage stands out quite singularly. First and
above all, the character of Christian marriage is raised to
the supernatural sphere through its elevation to the dig-
nity of a sacrament However, it would be wrong to
imagine that this dignity destroyed its essential natural
characteristics. For, as grace does not destroy nature
but lifts it up, so neither does the sacramental character
destroy Christian marriage but rather perfects it.
The primary end for which matrimony was instituted
is the procreation of children or the propagation of the
human race. This end is achieved by the means which
nature dictates, i. e., by the intercourse of husband and
wife. Therefore, matrimony is called a union. Now a
union between human beings postulates mutual consent.
Nowhere is sexual union regarded as marriage unless it
is in some way socially sanctioned,4 and social sanction
presupposes an agreement between the parties concerned.
It is therefore a hazardous attempt 6 to prove from scat-
tered texts that sexual intercourse (copula) alone consti-
tutes the formal element of matrimony. This opinion
confuses the essential, elementary constituent of marriage
with its primary and most important purpose. That
there are secondary purposes connected with marriage is
evident. They arc two: mutual help and companionship
and a lawful remedy against concupiscence.8 But these
two purposes are subordinate to the first and primary end,
which is the propagation and continuation of the human
race. These three ends of marriage seem to be alluded
to in the definition of Modestinus : " Nuptiae sunt coniunc-
tio maris ct feminae et consortium omnis vitae, divini et
-
4 New International Encyc, XIII, des Kan. Eherreehts, but he modified
87. his position in the second edition,
5 Freisea did this in the first edi- 1892, p. zix.
tion of his Gtachichte der Qucllen • Gen. II, 18; 1 Cor. VII, 9.
ogle
v %\^ " rigirval from
UNIVERSITY OF WISCONSIN
PRELIMINARY REMARKS 3
hutnani iuris communication T Nuptiae indicated a mar-
riage performed according to the Roman law, which
strictly required mutual consent.* But there is another
definition in Roman Law, vis.: Nuptiae sive matrimonium
est viri et mulieris coniunctio, individuam vitae consue-
tudinem retinens* i. e., a union of man and woman re-
taining the individual custom of life. To us there seems
little doubt that this definition expresses two essential
properties, namely, unity and indissolubility. Unity is
indicated by the singular : man and woman, not men and
women. It means that this union is to be entered upon
by one man with one woman, and hence polyandry as well
as polygyny are deviations from the Roman as well as the
Christian law of marriage, and from its typical form.
Polyandry, or the union of several husbands with one
wife, existed among some primitive tribes,10 but in most
instances was the exceptional form of conjugal union.
Polygamy or polygyny, i. e., the union of several women
with one husband, existed among some ancient peoples, in-
cluding the Hebrews, and still exists among some civilized
nations and the majority of savage tribes. However, as
has truly been observed, the great majority of peoples are
monogamous, and the other forms of marriage are usually
modified in a monogamous direction.11 The Greeks and
Romans show no traces of polygamy. The latter also
prove the indissoluble character of matrimony as opposed
to complete divorce. For up to the year 520 a. u. c. there
was no divorce in Rome, and Sp. Carvilius Ruga greatly
surprised his fellow-citizens by departing from the an-
cient custom.12 At Athens divorce was more easily ob-
T L. 1, Di(t. 33, a, if rilu ««£• 11 Weit«rmarck, Tht History of
tiorum. Human Marriage, 1891, p. 510.
a L. z, ib. ; pr. lust., I, 10. xa Cfr. Savigny, Vtrmiicht*
mL. 1, Inst., I, 9. Schrifttn, 1850, Vol. I, p. 81 ff.
10 Cfr. Cath. Encyc, ix, 694.
* \'r\r%\^> Originalfrorn
(* \>mI Original troni
C .OOglt UNIVERSITY OF WISCONSIM
■
4 PRELIMINARY REMARKS
tainedt especially by the husband, whereas Sparta long
maintained the purity of marriage.18 The early Chris-
tian emperors, Constantine, Theodosius, and Justinian,
legalized divorce, but before the tenth century the Cath-
olic teaching on the indissolubility of marriage had become
embodied in the civil legislation of every Christian coun-
try.14 At the time of the Reformation, the Protestant
Churches of the Continent rejected the sacramental char-
acter of marriage and admitted divorce.15 Luther re-
garded matrimony as a purely secular matter, which should
be regulated by civil law. This was done, and in the nine-
teenth century, the State took marriage entirely under its
control, though civil marriage had already been imposed
in Holland in 1580, Cromwell had introduced it in Eng-
land and Ireland in 1653, and France required it for the
Huguenots in 1685. But these are rather solitary exam-
ples. The nineteenth century, ushered in by the French
Revolution, produced a wholesale civil legislation con-
cerning marriage.
A civil marriage is one contracted according to the laws
of the country before a civil magistrate and having a
legal status without regard to ecclesiastical legislation.1*
Not all countries prescribe civil marriage in the same
manner, but three kinds may be distinguished :
(1 ) Optional or facultative civil marriage, which leaves
the parties free to contract marriage either before the
civil magistrate or before the ecclesiastical authorities.
This, we may safely say, is the statutory law in the U. S.
And here it may be added that Lord Hardwicke's Act 1T
was never applied to the colonies and therefore never be-
lt Muller-Bauer. Die grieck Pfi~ 15 New International Encyclope-
vat- and Kriegsaltertbtner, 1893, PP> ,;^:- XIII, 90.
15a, 14a. 16 Do Smet, Dw Sponanlibue et
uCoth. Eneye., IX ©9$- Matrimonio, ed. a, 1910, p. 304.
17 Acts Geo. IX, c. 33-
>Ie
J ^ Original fro rn
UNIVERSITY OF WISCONSIN.
PRELIMINARY REMARKS 5
came a part of the common law of the United States.
This Act demanded that a church marriage be preceded
by the publication of banns, except when a special license
was secured, and declared any other form of marriage in-
valid. This act was modified for England by Lord Rus-
sell's Act, and supplemented by others.18 This legislation
left a choice between marriage according to the forms of
the Established Church, marriage according to the forms
of other registered denominations, and civil marriage be-
fore a registrar. But a registrar's certificate is required
also for Catholics. In nearly all the States of the Union
statutes have been enacted providing for a ceremonial
marriage, and in most cases requiring also a license
granted by a properly constituted officer. The ceremony
is to be performed in the presence of two or more wit-
nesses by a priest or clergyman of some church, or by cer-
tain civil magistrates, such as judges of courts of record,
justices of the peace, police justices, mayors, aldermen of
cities, and county clerks. Where the State " does not re-
quire this formality for a valid marriage, an informal
marriage would be valid, though liable to prosecution. It
follows that a clergyman, either Catholic or non-Catholic,
who can prove his ordination by credentials, is a public
civil official when he assists at marriage and in this regard
is in no wise distinguished from a judge of the superior
or county court or a justice of the peace." It is evident
that the State has the right to demand certain qualifica-
tions and conditions in the minister ai of matrimony as
IB Acta Vict., c ai and 19, ao, Md., Mo., Mas*., N. C, Vt,, Wash.,
Vict, c no. W. V.
19 According to the .l'cze Inttm. 20 K. Zollmann, American Ciinl
Ency. it. c, p. pa), the following Ckurck Law, 1017, p. 33a.
Stiles insist on this formality under si The term minister is here uaed
an in validating clause; Cal., Ky., in in legit, not Its ecclesiastical,
sense.
jle
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
6 PRELIMINARY REMARKS
well as in the contracting parties. Civil marriage in this
sense can hardly be called objectionable.23
(2) Necessary civil marriage is that conditionally re-
quired by the State if the contracting parties belong to
no religious sect or suffer from an ecclesiastical (not
civil) impediment. Such a law exists in Austria since
May 25, 1868.
(3) Civil marriage is called obligatory if it is prescribed
by the State as an absolutely necessary condition to obtain
civil acknowledgment of the matrimonial status with all
its effects. The countries which have introduced it deny
any civil effect or consequence to the religious ceremony
and disregard ecclesiastical legislation. Obligatory civil
marriage is in force in Belgium (Code, art. 109), France
(Code civ., tit. 2), Germany (Burgerl. Gesetz-Buch, §§
1316-1322), Holland (Const, of 1833), Hungary (law of
Dec. 9, 1894), Italy (Codice Civile, lib. I, tit. 5, art. 93-
99), and Switzerland (Dec. 23, 1875, art. 29-43).
Against this abuse the Catholic Church, for obvious
reasons, has never ceased to raise her voice. Her chief
objections to obligatory civil marriage are: it deprives
marriage of its sacred character, obstructs the legislation
of the Church concerning her Sacraments, encourages di-
vorce, and fosters religious indifference.28
ECCLESIASTICAL LEGISLATION
The Code speaks of ecclesiastical legislation in two dif-
ferent places. One canon " says that matrimony among
baptized persons is governed not only by divine, but also
by canon law. Another text 25 states that the supreme
ecclesiastical authority alone has the right to judge
a
2S England hai options! civil mar- 21 Leo XIII, "Ci tiamo," June I,
riajre since 1836: Ireland since Aug. 187a.
29, 1844; Scotland since Aug. 7, 24 Can. 1016.
1854; Spain since 1883. BSCao.mojS, 1040.
jle
Original fro m
UNIVERSITY OF WISCONSIN
PRELIMINARY REMARKS 7
a
whether divine law prohibits or invalidates matrimony,
and to establish ecclesiastical impediments, and that no
inferior authority may abrogate or derogate from such
impediments or dispense from them. It would, however,
be unhistorical to assert that this centralized legislation
has been in force always. The fact is that the Council of
Trent M first defined as an article of faith the power of the
Church to establish impediments. The different impedi-
ments were determined gradually, as will be seen further
on. Gratian 2T says that in his time marriages were gov-
erned not by civil, but by ecclesiastical law, as bishops and
metropolitans decided matrimonial cases, especially at
synods. This particular, local or provincial, legislation
did not, however, prevent appeals to the Roman See, par-
ticularly from princes and nobles, as Lothair II (855-869)
and Robert I (922-923).
Matrimonial laws were issued by Nicholas I (858-87)
in his answers to the questions proposed by the Bul-
garians." The same Pope also stated the principle which
should govern the application of civil laws to this subject.
These, he says, must not be used for settling ecclesiastical
controversies, especially if they are contrary to the evan-
gelical teaching and canons.28 The same view is ex-
pressed with regard to the civil law admitting divorce by
SS. Ambrose 80 and Jerome. The latter says : The laws
of Christ differ from those of the Caesars, and what Paul
prescribes differs from what Papinianus says.11 Hippoly-
tus reproaches Pope Callistus for permitting noble Roman
ladies to marry slaves, which was against the civil law."
■
30 Sew. 24. cc. 3, 4, dr Mat » C. I, i '1st. 10.
IT Dictum ad c. 7. C. 2. q. 3: >t» C. a, C. 33, Q. a; ep- 60, c.
"Cum Mmtrimonio kodit reganlur 8 (Migne, 16, 1185).
iur£ pott, non iuro fcri." 81 Ep. ad Ocean.. 77, j.»
aaC. a, C 27, q- »; c,],C 30, aiDolIinger, Hippolylttt und Ka^
q. 5. lisUM, 1853. P- 15a f.
§le
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
8 PRELIMINARY REMARKS
Justin Martyr condemns concubinage and divorce as ad-
mitted by the civil law and says that those who practice
polygamy, even though they may be in accord with human
law, are sinners in the eyes of the Church.83 From these
few scattered testimonies it may be seen that the Church
maintained her own matrimonial regulations and opposed
civil enactments contrary to her teaching. The chief and
most important laws were those upholding the unity and
indissolubility, which are the main properties of Chris-
tian marriage, as understood by the Church. She au-
thoritatively interpreted many texts of Holy Writ,84 and
from her interpretation important conclusions were drawn
in the realm of Canon Law.
Properly speaking, there are no sources of matrimonial
law, because it was a part and parcel of ecclesiastical legis-
lation. Thus Gratian refers to marriage in the Causae
XXVII to XXXVI of his " Decreturn" with the excep-
tion of q. 3, C. XXXIII de Poenitentia. The Quinquc
Compilationes as well as the Decretals treat of Matrimony
in Book IV. After the Tridentine Council the decisions
of the S. C. Concilii were of great help to the canonist.
Many of these decisions are found in John Baptist Pit-
tono's " C onstitutiones Pontifciae et Rom. Congrega-
tionutn Decisiones ad Matrimonium Spectantes," Venice,
1735; in Gallemart's "Concilium Tridentitium" Venice,
1780; in Zamboni's " Collectio Declarationum S. C. Con-
cilii/' Atrebati, i860; in Richter's " Canones et Decreta
Concilii Tridentini" 1853. A very important collection
containing much matter on our subject is the " Collectanea
S. C. de Prop. Fide," Rome, 1907, 2 vols. Since Pius X's
decree " Nc temere" (Aug. 2, 1907) the decisions on the
same given by the S. C. Concilii and the S. C. Pro Re
88 Apol, 1, 15.
a« Gen. 2, ay, Matth. XIX, 4 ff.; Eph. V, 25, 3a; t Cor. VII, n ff.
% I 4 Original from
■OOgie UNIVERSITY OF WISCONSIN
■
pi
"
PRELIMINARY REMARKS 9
Sacramentaria are valuable sources of information.
As to the literary apparatus, the following works may
be profitably consulted: "Lex Dei sive Mosoicarum et
Romanarum Legum Collatio"** of the fifth century;
"Lex Romano Cononice Cotnpta" (§ 27-32), interesting
as a monument of the eighth century for reckoning the
degrees of relationship;88 the collections of Burchard of
Worms, "Decretum" (lib. VII and IX) and Ivo of
Chartres, "Decretum" (lib. VIII) and " Panormia"
(lib. VI). A very interesting monograph is the work of
Hincmar of Rheims, " De Divortio Lothari Regis et
Theutbergae Reginae." ar Rhabanus Maurus composed a
" Tractatus dc Consanguinorum Nuptiis." "
Noteworthy are the " Summae de Matrimonio " of
BemardusPapiensis,89 Robert of Flamesbury,40 and
Tancred,41 and Roffredus de Epiphanio's " Libelli de lure
Canonico" " especially book III. John Andreae com-
piled a " Summa de Sponsalibus et Matrimonio cum
/,•;,..-.. r<w«uiflu/M;«ntf« " «
Arbore Consanguinitatis.'
Works of . authors chiefly consulted by us are the com-
mentaries of Fagnani, Engel, Reiffenstuel, Schmalz-
grueber, Boeckhn, Wernz (fourth book). A classical
work is the Jesuit Thomas Sanchez's " De S. Sacramento
Matrimonii" (Nuremberg, 1706). Besides these the
manuals of Heiner (1905), Leitner (1912), Smith's Mar-
riage Process (1892), Gasparri's De Mat., ed. 3; Feije's
De Imped, et Dispensat. Mafrim., ed. 3 ; v. Scherer's K.-R.,
vol. II, have proved a great help in the making of this
commentary. Of course, these sources and authors,
so Freisen, /. c, p. a. se Ed. Laapeyrci, i86of Appendix,
3« Published by M. Conrat pp. 287 ft".
(Kohn), Amsterdam, 1904, pp. ao/- 40 Cfr. Schnlte, Quell**, I, 308 f.
JS. 41 Ed. Wunderlich. 1841.
zt Miirne, P. L„ 125, 610 ff. 4a Cfr. Schulte, /. c, II, 7$ f.
*• Ibid., no, 1085 ff. *s Fried berg, Dtcrttum Mogistri
Gratiani, p. 426.
'le
£ * -. v J„ Original fro m
UNIVERSITY OF WISCONSIN
io PRELIMINARY REMARKS
though still useful, are'now somewhat antiquated. Con-
cerning dispensations and procedure mention may be
made of Giovinc, Dc Dispensationibus Matrimonialibus,
1863 ; Joder, Formulaire Matrimonial, 1891 ; Zitetli, De
Dispensationibus Matrimonialibus, 1884 ; Mansella-Solieri,
De Causis Matrimonii, 1906. For historical researches
we used Esmein, Le Mariage en Droit Canonique, 1891,
and Freisen, Geschichte des Kan. Eherechts, 2nd ed.,
1902. On the physiological and medical aspects we
consulted Antonclli, Medicina Pastoralis, 1909; Esch-
bach, Disputationcs Physiologieo-Theologicae, 1901 ; and
O'Malley-Walsh, Essays in Pastoral Medicine, 191 1.
Gi Original from
UOglt UNIVERSITY QFWI5C0NSIN
■
9
TITLE VII
on matrimony
Can. 1012
§ i. Christ us Dominus ad sacramenti dignitatem
cvcxit ipsum contractum matrimonialem inter bapti-
zatos.
§ 2. Quare inter baptizatos nequit matrimonialis
contractus validus consisterc, quin sit co ipso sacra-
mcntum.
The Lord Christ himself has raised the marriage con-
tract between baptized persons to the dignity of a Sacra-
ment, and hence there can be no valid marriage contract
between baptized persons which is not at the same time
a.
a sacrament.
This canon enunciates two truths which no Catholic is
at liberty to deny, viz.: (i) that matrimony is a Sacra-
ment, and (2) that the marriage contract is the sacra-
ment. To which must be added (3) that both statements
apply only to baptized persons.
1. Marriage is a Sacrament, that is, as Dogmatic The-
ology proves, a visible sign instituted by Christ as a
means of sacramental grace. The sign consists of matter
and form, which are described by Benedict XIV as fol-
lows: The mutual and lawful surrender of the bodies
<
indicated by words or signs expressing the interior con-
sent is the matter of the Sacrament, whilst the mutual
xx
j 4 Original from
by^jOOglt UNIVERSITY OF WISCONSIN
"
12 MARRIAGE LAW
and lawful acceptance of the bodies is its form.1 Hence
the remote matter are the bodies of the contracting parties.
Bodies, we say, as far as they are apt for generation,
which is the primary end of marriage. A contract is
made by two persons fit for marriage, and this contract is
expressed by the mutual consent, which is an essential
condition of a valid marriage.
The visible sign or nuptial consent conveys sacramental
grace, according to the teaching of St. Paul, Eph. V, 25-
32, where the matrimonial contract is represented as a
symbol of the union between Christ and His Church.
When Christ raised marriage to the dignity of a Sacra-
ment is a matter of theological speculation.2 Some say,
at the wedding feast of Cana in Galilee; others, when He
uttered the words recorded in Matt. XIX, 8, on His jour-
ney to Jerusalem ; others, after the Resurrection.
The grace attached to the sacrament of matrimony cor-
responds to the threefold effect which usually follows
marriage: (a) the bonnm sacramenti, or sacramental ef-
fect, which is potential indissolubility or inseparability
in a higher degree accruing to marriage by reason of the
Sacrament; (b) the bonnm fidelitatis, which touches the
secondary purpose of marriage, viz.: mutual help and re-
striction of concupiscence; for the sacrament conveys the
title to the actual graces necessary in the discharge of the
duties of the married state; (c) the bonnm prolis, or
offspring, which is quasi-sanctified by a Christian mar-
riage. Out of Christian wedlock are born children for
the propagation of the Church.8 Lastly, the education
and bringing up of the children is ennobled by sanctified
love,
l "Poueis ebhine," March 19, 3 Cfr. Poble-Preuss. Tht Sacra-
1758 (Bull., Prati, t. IV, app., p. menu. Vol. IV, p. 151.
4P5). »Cf. 1 Cor. 7. 14.
jle
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1012 13
Matrimony being one of the Sacraments of the living,
supposes the state of sanctifying grace. Should there
be an obstacle (obex) at the time the contract is made, the
sacramental grace is received as soon as this obstacle is
removed.
That Marriage is a Sacrament conveying grace is an
article of faith.4 The Church condemned the tenets of
the Gnostic Encratites, the Manichaeans, and the Albi-
genses, as well as that of the Protestants, who regard
marriage as a purely worldly matter.
2. That contract and Sacrament cannot be separated is
not strictly de fide, but "common and certain teaching,"
because the contrary proposition was condemned in the
Syllabus of Pius IX (1864).0 The Gallicans and Josephi-
nists maintained that the sacramental character is purely
adventitious and may be separated from the contract, and
that the sacrament is constituted by the nuptial blessing.8
This sounds very pious, but the purpose actuating these
authors was obviously to subject the contract to the State
and leave the nuptial blessing alone to the Church. We
do not wish to say, however, that the theory was entirely
destitute of a theological prop, because Melchior Canus
(1560) and Tournely of the Sorbonne had defended the
opinion that the sacerdotal blessing constituted the form
of matrimony and that, consequently, the assisting priest
was the real minister of Marriage. This opinion was
novel. St. Thomas T and the Decretum pro Armcnis 8
plainly state that the efficient cause of Matrimony is the
mutual consent expressed by words in the present tense.
It follows that the priest is not the minister of the Sacra-
ment, but merely an authorised ivitness. But this view
Q
4 Trid., scss. 24, can. i dc mat. N. Nuitr, Professor of Turin, are
B Nn. 66, 73. known.
(i The names of Antonio de Do- i Suppl., III, q. 42, art. 1, ad x.
minis, Launoy, Theimer, Ziegler, J. a Dcnzingcr, n. 70a.
>Ie
J , Original fro m
UNIVERSITY OF WISCONSIN
14 MARRIAGE LAW
involves a difficulty. If the matter and form of Matri-
mony essentially consist in the mutual surrender and ac-
ceptance of the bodies, as expressed by conclusive signs,
how could the Church have dared to add something to the
essential elements by requiring the presence of the priest
for the validity of Marriage? The answer is that the
Church, while preserving the matter and form of the
Sacraments, is empowered to add new conditions of va-
lidity if the public welfare or other grave reasons advise
such a course.0 In doing so she docs not change the es-
sentials of the contract, but for the sake of public utility
or necessity "surrounds the contract with certain formali-
ties that must be observed. Similarly the State pre-
scribes certain formalities which must be observed before
a contract receives official sanction and obtains juridical
effects.
3. The Code adds in both paragraphs: " matrimonium
inter baptisatos" L e.t only among baptized persons is the
nuptial contract a Sacrament. The reason lies in the
character of Baptism, which impresses on the soul the
indelible mark of Christian initiation or dedication, and
is therefore.a conditio sine qua non of the Sacrament of
Matrimony, though not its causa efficients,™ which is the
mutual consent of the contracting parties.
Here two questions occur: (a) is Marriage between
a non-baptized person and a baptized person a Sacrament?
The answer, according to the more probable opinion, is no,
because an infidel is absolutely incapable of receiving sac-
ramental grace, and since the Sacrament is numerically
one in both parties, as is the contract, when one party is
incapable of receiving the Sacrament, the other is also in-
a
c
9 Cfr. St. Thomas, Quaestiontt 1* Thus Leitner, Ekcrecht, 190a,
Quodlibelalcj, V, q. 8, art. 15, ail p. 61. V
|| Benedict XIV, "Paucit abhinc,"
a
March 19, 1758.
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 1012 15
capable.11 The argument from the jurisdiction which the
Church claims over such marriages is unsound because
this jurisdiction is claimed by reason of one person be-
longing to the Church.
(b) Does the Marriage of an unbaptised couple become
a Sacrament if they receive Baptism tvithottt renewing
their consent? Sanchez and the majority of authors an-
swer in the affirmative, and most logically, because the
matrimonial consent endures and by the reception of Bap-
tism, the contract becomes a sacramental union symbolizing
the union of Christ with His Church.12 The same holds
good concerning Matrimony by proxy. Such a marriage,
if duly contracted, does not differ substantially from any
other, and since the Sacrament cannot be severed from
the nuptial contract, a marriage by proxy is a true Sac-
rament.11
We will add a note on the different Latin names given
to Marriage.
Matrimonium is derived from the office (munus) of
the mother (mater), because the principal purpose which
a woman should have in getting married is to become a
mother.14
Connubium is derived from nuptiac (nubere), to veil,
and meant, according to Roman law,16 the rite of mar-
riage, and also the privileged Marriage of Roman citizens
among themselves ; marriage between slaves they called
contubernium. Nuptials in the Christian sense also sig-
nified a rite because, as St. Ambrose observes, brides
veiled themselves as a sign of modesty.18
Coniugium, or wedlock, denotes the conjugal union,
Q
n Sanchez. L II, disp. VIII. If Dig. 33, 2.
13 Ibid., I. II, ditp. IX. lflCfr. Cateck. Cone. Trid., P. II,
is Cfr. PohlePreass. /. c. p. 163. c S.
14 See the explanation in c. 2,
X, III, ,3.
oogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
16 MARRIAGE LAW
the effect of the marital consent being to make the two
one flesh.,T
Christian Marriage may therefore be defined as the last-
ing conjugal union between a capable man and a capable
woman, raised to the dignity of a Sacrament.
Can. 1013
end and properties of marriage
i
§ i. Matrimonii finis primarius est procreatio atque
educatio prolis; secundarius mutuum adiutorium et
remedium concupiscentiae.
§ 2. Essentiales matrimonii proprietates sunt unitas
ac indissolubilitas, quae in matrimonio christiano pe-
culiarem obtincnt firmitatem ratione sacramenti.
1. As stated in the preliminary remarks, the primary
end of Marriage is the procreation and education of off-
spring, while. its secondary purposes are mutual help and
allaying concupiscence. The latter are entirely subordi-
nate to the former. The consequences of this proposition
will be seen more palpably under can. 1068, can. 1086,
§ 2, and can. 1092.
2. The essential properties of Marriage are unit)' and
indissolubility, which obtain a special firmness or sta-
bility in Christian Marriage by reason of its being a sac-
rament. This firmness must be traced to the typical
union between Christ and His Church and also to the
sacramental grace attached to Christian Marriage. The
Code therefore distinguishes between marriage as a nat-
ural contract and Christian Marriage. But this dis-
tinction, as stated in the preceding canon, does not touch
the consent or its properties essentially, but merely in
IT Sanchez, I. c, Prooem., n. 4.
^le
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 1013 17
degree. A Marriage between non-baptized persons is as
essentially one and indissoluble as between baptized per-
sons, but there are degrees of stability in so far as a non-
consummated Marriage can be more easily dissolved and
Christian Marriage represents the typical union between
Christ and His Church and through its sacramental char-
acter possesses greater firmness, although it is not com-
pletely indissoluble.
Unity is another essential property of every Marriage,
whether Christian or non-Christian. An objection here
naturally arises as to the Old Testament. Lamech, a
great-grandson of Cain, took two wives,18 and the holy
patriarchs followed his example. Therefore polygamy
(or polygyny) and divorce seem to have been legalized
by the law of Moses.19 How was such a deviation from
the natural law — if the latter prohibits polygamy —
possible? This question was solved by Innocent III, and
we have not yet discovered a better solution. He says
that the Patriarchs and the Chosen People as a whole
had by divine revelation obtained permission to have sev-
eral wives.20 The reason for this permission was the
more rapid increase of God's people, and, in general, of
the human race. However, under the new dispensation,
after Christ had restored 2I the original idea of marriage,
this concession ceased.
Now the further question arises : How could Yahweh
dispense from the natural law? Here it is necessary to
make a distinction. The natural law pure and simple
(" do good and avoid evil "), in other words, the primary
natural law, cannot be proved to condemn either polygyny
or divorce. But if we take natural law as meaning the
It Gen. 4, 19. 10 C. 3, Gaudiamus, X, IV, 19,
it Dent. 17, 17; 21, 15 f.; 24, 1 ff. dt divortiit,
11 Matth. 19, 4 ff.
§le
k ,1,., Original from
UNIVERSITY OF WISCONSIN
18 MARRIAGE LAW
St
o>
conclusions or deductions drawn from the original or pri-
mary law, it is opposed to polygyny and divorce. The
reasons are given by St. Thomas 22 as follows :
(a) The certainty of offspring is jeopardized by
polyandry, which therefore must be rejected altogether.
Polygamy impedes the training of children, which not
only belongs essentially to the purpose of marriage, but
also forms a substantial care of the father. Where there
is unity of marriage, as a rule, there is also uniform and
tender care of offspring.
(b) The equality of woman, especially as to mutual
rights and love, is lessened by polygamy, the wife is little
more than a slave, and the dignity of womanhood is
lowered. This reason, we believe, will appeal strongly
to modern women.
(c) Divided love cannot be so intensive and lasting as
love centred on one. This reason also touches the in-
dissolubility of the marriage tie and the education of
children.
i -
(d) Baptismal records prove that the numerical distri-
bution of the sexes is about equal, at least in normal times.
Add to these reasons the social equality of men; for to
have several wives is expensive and only the rich could
afford this luxury.
As to indissolubility, the reasons just stated may be
alleged in a modified way also against complete divorce.
St. Thomas » says that :
(a) The uniform and constant care of offspring re-
quires permanency of the marital bond or the continued
cohabitation of father and mother.
(b) The right of the wife to desert her husband is neu-
t2Summa contra GmtUis, III, c. 23Summa contra Gent, III, c.
134; Suppl., III, q. 65. »• 1| »d 8. 133.
Sandic;, /. c, 1. VII, diap. 80.
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1014 19
tralized by the fact of her subjection to hirn; and if the
wife is not allowed to leave her husband, he is not al-
lowed to leave his wife, else there would be inequality of
rights.
(c) The more intense mutual love is, the more endur-
ing and lasting will it be; and thus loyalty is fostered by
a permanent union, which, moreover, prevents serious
dissensions and quarrels and diminishes the occasions for
adultery or unlawful unions.
We need not dwell further on this subject, as the di-
vorce evil, especially in our large cities, is constantly pro-
ducing effects which confirm the wisdom of the Catholic
attitude.
In view of these facts it is plain that the Church was
right in anathematizing those who, like Luther and
Melanchthon, admitted simultaneous polygamy,2* and in
proscribing divorce in these severe terms: " If any one
saith that on account of heresy, or irksome cohabitation,
or feigned absence of one of the parties, the bond of mar-
riage may be dissolved, let him be anathema." "
Can. 1014
s
FAVOR IURIS
Matrimonium gaudct favore iuris; quare in dubio
standum est pro valore matrimonii, donee contraxium
probetur, salvo praescripto can. 11 27.
a
The law always favors Marriage, and hence if a doubt
arises as to the validity of any particular Marriage, the
presumption is in its favor until the contrary is proved
(excepting the case of the Privilegium Paulinum; see can.
j "27).
p
24 Trid., mm. 24, can. a, de sac. mat.
M Ibid., can. 5.
jle
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
ao MARRIAGE LAW
The reason for this ruling lies in the fact that Marriage
is a public, not a private^ institution, and that conse-
quently the legislator always intends to favor it by his
dispositions, which are therefore of the nature of a favor-
able law (lex favorabilis) ,w However the presumption,
mentioned, while called " praesutnptio iuris" is not a
praesumptio iuris et de iure. Solid proofs are admissible
against it if a doubt should arise as to whether a Marriage
is valid. If the reasons against the validity of a Mar-
riage are such as to convince the mind of the judge, lie
must pronounce accordingly. For although the law fa-
vors the validity, of Marriage, yet, as law it pertains to
reason, and hence is subject to the demands of reason.
Where conviction is complete, the law ceases to exercise
its force. The Holy Office 27 has given a decision to the
purpose. A girl whose precise age was unknown wanted
to marry or was married. Was it valid? The Vicar
Apostolic was instructed to procure undoubted testi-
monies as to the natural capacity of the girl for mar-
riage. " Malitia supplct actatcm," and only if the marks
of puberty were missing and the necessary age (twelve
years) was lacking the Marrfage was certainly invalid.
In other words, the natural impediment of age ceases as
soon as there is a natural capacity for generation.
The privilegium fidei will be explained under can. 1027.
Can. 1015
species of marriage
§ i. Matrimonium baptizatorum validum dicitur
ratum, si nondum consummatione completum est;
a
c
26 Sanchez, 1. I, diap. I, n. 4; Card. Gasparri (sec Coll. P. F., n.
RciiTcnsiucI. D* Reg. Iuris in 6*, 2165); S. 0.. Dec 10, 1885 (Coll.
reg. 15, n. 2 f. cit., n. 1645). But can. 1067 ii not
27 March 18, 1003, referred to by affected thereby.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
—
a
N
"-.
CANON 1015 21
ratum et consummation, si inter coniuges locum
habuerit coniugalis actus, ad quern natura sua ordi-
natur contractus matrimonialis et quo coniuges fiunt
una caro.
§ 2. Celebrato matrimonio, si coniuges simul co-
habitaverint, praesumitur consummatio, donee con-
trarium probetur.
§ 3. Matrimonium inter non baptizatos valide cele-
bratum, dicitur legitimum.
§ 4. Matrimonium invalidum dicitur putativum, si
in bona fide ab una saltern parte celebratum fuerit,
donee utraque pars de eiusdem nullitate certa eva-
dat.
§ 1. A valid marriage, contracted between baptized per-
sons, is called ratified (ratum) as long as it has not been
consummated by conjugal intercourse; ratified and con-
summated, if perfected by the conjugal act to which matri-
mony is by nature directed and by which the partners
become one flesh.
§ 2. If the parties have lived together. after the celebra-
tion of marriage, consummation is presumed, until the
contrary is proved.
§ 3. A marriage validly contracted between unbaptized
persons (e.g., Mohammedans, Jews, Gentiles) is legiti-
mate but not sacramental.
§4. An invalid marriage is called feigned (putativum)
if contracted in good faith by at least one party, until both
become aware of its invalidity.
As to the first paragraph, note the requirement of con-
summation, which, the Code says, must be a conjugal act.
Carnal intercourse before marriage is fornication, not a
conjugal act Nor can onanistic m intercourse be re-
36 Thin called from Onon; aee Gen. jS, 9 I.
OOglL UNIVERSITY OF WISCONSIN
a
N
22 MARRIAGE LAW
garded as a consummation,29 though it is not required
that the wife should cooperate actively in the act.10
Other questions connected with this matter will be dis-
cussed in connection with impotence.
In § 2 the Code requires strict proof as to the non-con-
summation of a Marriage if the parties have lived to-
gether after the wedding. This proof must be obtained
by inspection on the part of two physicians or competent
nurses or midwives, unless circumstances render such in-
spection unnecessary,81 as when, for instance, it could be
established by trustworthy witnesses that one of the par-
ties left the other immediately after the matrimonial cele-
bration," or if the woman had been a prostitute.
That a valid Marriage between unbaptized persons is
simply called legitimate (§3) points to a natural contract
to which no sacramental character is attached.
Can. xoi6
the law of marriage
Baptizatorum matrimonium regitur hire non solum
divino, sed etiam canonico, salva compctentia civilis
potestatis circa mere civiles ciusdem matrimonii ef-
fectus.
The Marriage of baptized persons is governed not only
by the divine law, but also by canon law, with due regard
to the competency of the civil power concerning the merely
civil effects of Matrimony.
Note the two powers mentioned in the text : the eccle-
siastical and the civil, and remember that the text says,
■
29 Cfr. c 36, C. 27, q. 2; C II, though he maintains that the semi-
C. 35. q- * and 3; Sanchez, I. II, natio of both parties is required for
disp. SI, on. 1, s. contummation.
80 Sanchez. /. c, n. n, says that Si Cfr. can. 1976 ft*.
thia it the more common opinion, al- St S. C. Prop. Fide. May 10, 1801.
§le
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1016 23
baptizatorum matritnoniutn, the marriage of baptized per-
sons. The Church therefore claims jurisdiction over the
Marriages of baptized persons. What is the reason for
this claim? The scope of Marriage is the generation or
procreation of offspring. This has a threefold aim:
(1) the perpetuation of the human race, which is em-
bodied in nature itself, because nature inclines towards
it; (2) the continuation of civil society, and as such mar-
riage is subject to the State ; (3) the peopling of the City
of God and increase of the number of the faithful, and
from this point of view Marriage is subject to the
Church."
However, the last-mentioned consideration would not
be sufficient to vindicate to the Church the power of con-
trolling Marriage to the full extent to which she claims
it, namely, in every respect excepting its purely civil
effects. Whence has she this power? Her claim is
based upon the view she takes of Marriage as a
Sacrament. As the sacramental character of marriage
cannot be separated from the underlying natural con-
tract, and as all strictly spiritual matters, such as the Sac-
raments, belong to the exclusive sphere of ecclesiastical
legislation, the Church logically claims full and unham-
pered power over the Marriages of baptized persons.
As these persons*4 are themselves, by reason of valid
Baptism, subject to the Church, it is evident that she has
a
a legal right to regulate their matrimonial union.
As to the extent of this power, it embraces the whole
range of the nuptial contract, aside from its purely civil
effects. Thus engagement or betrothal, as a preliminary
to marriage,85 falls under the legislation of the Church.
88 St. Thomas, Summa contra 85 " Tamttti." Trid., Best. 24. C.
Gentiles, IV, 78. i, de ref. mat.; "Ne temere," Aug.
84 Cfr. TriJ., teat. 7, can. 7; can. a, 1907, n. I.
8, dr baptumo.
G I Originalfiom
UNIVERSITY 0FWI5C0NSIN
24 MARRIAGE LAW
Marriage as a contract in fieri, or the transient act of
matrimonial consent, is also subject to the Church, as
long as the substance of the natural consent is not es-
sentially changed. Therefore, the Church may add ac-
cidental formalities to the wedding ceremony, as she has
done by demanding a public act,89 and she may set up
impediments, either prohibitive or invalidating marriage,
touching the persons themselves or the solemnity of the
contract.
Of course, the Church could never abolish or supply
the conditions of the natural contract. Neither could she
declare persons who are incapable of contracting mar-
riage to be capable. For she has no right to change the
natural law, although she may interpret it as well as the
divine positive law.
It is not our task to prove from history the power of
the Church to establish matrimonial impediments. We
merely note that ecclesiastical impediments, being estab-
lished by human authority, are liable to change, because
the power of the Church is not for destruction but for
edification and the welfare of society, and what may suit
3.
one age may be useless and even detrimental in another.
Finally the power of the Church extends to the vin-
culum perdurans or marriage as a legal status. With
regard to that enduring union, only ratified marriages,
not those consummated, may be solved by the Church for
weighty reasons. Here enter the "Privilege of faith,"
the separation from bed and board, the prohibition of
the use of the conjugal act as a punishment for crimes
committed, and finally the legitimation of offspring.
What has been said so far must be accepted as the
common and certain doctrine of the Catholic Church
<
*a Benedict XIV, De Syn. Dioec, IX, 9, 4; Wernx, Ius Dtcrttal., IV,
ed. a, 1911. Vol. t, pp. 78 ff.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1016 25
■
uttered in solemn form at the Council of Trent 8T and in
papal constitutions."
We again draw attention to the text: " matrimonium
ba ptisatorum," the marriage of baptized persons. Notice
that we use the genitive, instead of saying, " between "
baptized persons. The reason for this distinction is :
when we say : between baptized persons, we mean that both
parties are baptized ; while if we say : of baptized persons,
we do not necessarily intend to say that both parties are
baptized. Thus James may be baptized, whereas his
bride Gemma is not. May the Church dictate what James
has to do ? Or, in other words, has the Church any power
to legislate concerning mixed marriages, taking the word
" mixed " in the wider sense as including disparity of
religion? The answer is affirmative if we accept the view
taken by several popes. Thus Innocent III and Honorius
III say that the Sacrament of Matrimony exists among
the faithful as well as among infidels.89 Leo III, after
citing these texts, concludes that since marriage is
by its very nature a sacred thing, it is meet that it be
regulated and directed, not by civil rulers, but by the di-
vine authority of the Church, who is the sole teacher
in sacred matters. The underlying idea is that Mar-
riage, having God for its author, foreshadowed the In-
carnation of the Word, and is therefore something sacred
both by its institution and as a type.40 However, with
all due respect to these utterances, it must be stated that
the Church never claimed legislative power over Mar-
riages in which both parties were not baptized. This is
»T Trid., ten. 34. can. 3, 4, 9, ia, 70. Jit 7*. 741 Leo XIII, "Arca-
de sacr. mat. num." Feb. 10, 1880.
M Benedict XIV, "Singula** no- 89 C 8, X. IV. 19. da divort.; c
bis," Feb. 9, 1749; HM VI, "Aue- 11, X, I, 36, ds transact.
tor em ftdti," Aug. a8, i794» on- 59, 40 "Arcanum."
60; Pius IX, Syllabus, no. 68, 69,
"-.
.'le
Y ,1,., Original fro m
UNIVERSITY OF WISCONSIN
26 MARRIAGE LAW
St
o>
the plain meaning of our canon, which vindicates the right
of ecclesiastical legislation only for Marriages of baptized
persons. Therefore the "res sacra" must not be urged
too rigidly.41 Marriage as a merely natural contract is
not a sacred thing, properly so-called, because things
sacred are such -either by a blessing, or consecration, or a
special dedication to the service or worship of God.4a
But the natural nuptial contract receives no blessing at all.
Wherefore we should be careful not to urge a double-
edged argument.
A more solid argument is that derived from the purpose
of marriage as a means of propagating the Church. If
one of the contracting parties is, by Baptism, a member
of the Christian community, he is subject to the Church,
whose sign and seal he has received, and therefore must
obey her laws, which bind and oblige all her members,
whether they are willing or not. For the Church not
only is entitled, like any other society, to defend her own
interests, but she is also obliged to repel dangers from
individuals. And, as sad experience teaches, many
dangers attend mixed marriages. Therefore, both by
reason of her jurisdiction over her members and in
virtue of her divine calling, the Church rs empowered to
regulate Marriages, even if only one of the contracting
parties belongs to her pale.
A most important question, which reflects on the whole
range of ecclesiastical impediments in general, and on
that of disparity of worship in particular (can. 1070),
must here be touched. Who arc meant by the term bap-
tised? For the text says " Matrimonium baptisatorutn."
The answer can be deduced from the text itself. But
41 Wernz, /. f ., IV, Vol. I. p. 8s. «2 Reiffenrtuel. R*B. Iuris in
insists too strongly on this argu- Quinto, 7, n. 1; we misi a defini-
jiic-i.t. tion in tbc Code
>Ie
% ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 1016 27
we shall first attempt to sura up the doctrine of the
Church held up to the moment of the promulgation of
the Code.
■
(a) Valid Baptism per se incorporates a person in the
body of the Church, and by Baptism all are subject to the
laws of the Church."
(b) Hence heretics, too, if validly bapti2ed, were
bound by the impediments of ecclesiastical law, for in-
stance, disparity of worship.**
(c) An express exception was made with regard to
non-Catholics when they marry among themselves, be-
cause they are not obliged to observe the form pre-
scribed."
(d) Our Code appears to restrict disparity of wor-
ship to Catholics, as will be seen under can. 1070. Hence
from May 19, 1918, this impediment de facto touches Only
Catholics.
So far our statements are borne out by the common
doctrine of the Church and the present Code. But are
the other impediments iuris ecclesiastici also abolished by
the Code? It is certain that the Code legislates only for
Catholics, but that it is the intention of the legislator
to declare all baptized non-Catholics free from other ec-
clesiastical laws and impediments, we cannot maintain.*8
en
=?
COMPETENCE OF THE CIVIL AUTHORITY
Canon 1016 grants to civil or secular law a certain
competency in matrimonial matters, which, however,
touches only the civil effects of marriage contracted by
■
9
'■-.
48 Trid., seas. 7. cm. 7 f.. de bapt. 1318); S. C. C. 1903 (Anal. Eccl.,
44 Bened. XIV. "Singulsri No- XI. 284 ff.l. etc.. etc.; can. 87.
bis," Feb. o, 1749, { 1; "Magnae 45 ".We temere," Aug. 3, 1907;
Nobis," June, 17 ■;?''■ "Ad tutu Can. 1099, I a.
minus," Aug. 8, 1748; S. O, Inst. 46 This is also the view of a
of March ao, i860 {Coll. P. F., n. Roman professor of Canon Law.
ogle
£ * ^ vnl/. Original from
UNIVERSITY OF WISCONSIN
28 MARRIAGE LAW
baptized persons. These civil effects have to do with
the dowry, the right of succession, the division of prop-
erty between husband and wife, the right of children to
titles and property, and similar merely material matters.
For the Church, says Leo XIII, is not unaware, and
never calls in doubt, that the Sacrament of Marriage,
being instituted for the preservation and increase of the
human race, has a necessary relation to human affairs,
but a relation which concerns the civil order only ; and
concerning such things the State is justified in making
laws and giving decisions."
Is that all the State has to say concerning Marriage?
As to the Sacrament, this is undoubtedly all. The rest
the State may confidently leave to the Church. How-
ever, we must not shut our eyes against the circumstances
of the time. To-day, by reason of an almost general
indifference in matters religious and the so-called parity
of religion granted by the State to a hundred and more
sects, nearly every State contains a large percentage of
citizens who, practically at least, escape the enforcement
of ecclesiastical laws. Should we, then, entirely deny to
the State the power of framing marriage-laws? No, the
State is deeply interested in marriage and the family and
hence must assert a certain control, not only over the
civil effects of marriage, but also over the contract itself,
or at least its formalities. However, before we explain
this power we must lay down some self-evident rules.
i. No State, whether Christian or infidel, has any right
to legislate concerning Marriage as a Sacrament, for this
is a purely spiritual matter. This proposition is, though
p
47 "Arcanum," Feb. 10, 1880; J. J. n. 278; Wernz, Ins Decretatium, ed.
Wynne, S.J., The Great Encyclical j, IV, Vol. 1, p. 96 I!.; He Smet,
Letters of Leo XIII, 1003, p. 78: J. £•• p. *9*>
cfr. Gatparri, De Matrimonio, ed. 3,
* I Original from
UNIVERSITY OF WISCONSIN
CANON 1016 29
not de fide, certain and common doctrine of the Catholic
Church." Therefore,
2. The State is not empowered to set up impediments,
either prohibitive or invalidating, with regard to Chris-
tian Marriages vested with the sacramental character.
This power belongs exclusively to the Church.48 Some 80
have distinguished between prohibitive and invalidating
impediments set up by the State, but this distinction is
groundless." For to determine the time and circum-
stances proper for the reception of the Sacraments is an
ecclesiastical right. Neither can an appeal to the recog-
nition by the Church of civil laws, for instance, concern-
ing adoption, justify this interference. These civil laws
bind, not as civil, but as ecclesiastical laws acknowledged
or " canonized " by the Church.
3. The State may frame laws governing the civil effects
of matrimony and prescribe a civil form to be followed
by the contracting parties under penalty.62
4. Besides, the State may for a time and for weighty
reasons prohibit Marriage or its consummation, at least
indirectly, e. g., to soldiers.
5. But the State may never, under any condition, claim
the right to enact laws that clash with the natural or the
divine law, no matter whether there be question of a
Marriage of baptized or unbaptized persons. For the
State is not above these laws. Thus laws favoring di-
vorce or polygamy in any shape or form are looked upon
by the Church as antagonistic to the divine law and she
48 Gasparri, /. e„ n. 383. Rouen, 1855. that no one should
« Inslructio S. C. Prop. Fide. Bet married ecclesiaitically before
1753 (Coll, n. J85). evidence is riven of the civil mar-
so Thus Schulte, Eherccht, 1855, rUg«; cfr. Wernx, J. c, ed. I, p.
p. 3*7- "*?•
51 The S. C. C. rejected the ai- m Gaiparri, /. c, n. 288.
■ertion of the provincial council of
jle
j , Original fro rn
UNIVERSITY OF WISCONSIN
30 MARRIAGE LAW
never fails to denounce them. Moreover, laws " regulat-
ing the birth rate " or affecting parties previously to mar-
riage are unjust, because unnatural. A recent writer85
has expressed his view of the suggestion that only the
healthy shall be permitted to marry, in the following ener-
getic language : "I am nauseated by this blithering rot
about the scientific breeding of human beings as if they
were cattle and hogs. The State has no right to select
your wife. This privilege belongs to the realm of per-
sonal liberty where the individual is king [to a certain ex-
tent, of course]. Laws cannot impart love. Compulsion
breeds rebellion." We may add another reason: As
Marriage is intended and directed by nature, the author
of which is God, no human power has the right to inter-
fere with it There is only one impediment that can
prevent men or women generally from getting married,
and that is absolute and incurable impotence. This is an
impediment set up by nature, and no other impediment
equals it.
Having said this much by way of general principles,
we now proceed to determine what rights may be claimed
by the State concerning the Marriages of unbaptized per-
sons. When we say the State, we mean the authority
which rules any autonomous commonwealth. Autonomy
or sovereignty, however, need not be complete. Thus our
American States and the cantons of Switzerland are sov-
ereign to some extent, but not completely. In the U. S.
marriage laws are made not by the Federal but by State
authority. Unfortunately there is no uniformity of legis-
lation. Whether our State legislatures may be called
Christian or not, does not matter, as long as the laws they
-
Bi Windle, Word PicUrts, 1018, effect in the State of Illinois. But
p. «8. This language is justified by the war has made such precautions
the proposal of •ome laws to that superfluous.
Q
*Ie
k ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1016 31
make are based, to a great extent at least, on Christian
principles. " Christianity is not the legal religion of the
State as established by law. If it were, it would be a
civil or political institution, which it is not ; but this is
not inconsistent with the idea that it is in fact and ever
has been the religion of the people. This fact is every-
where prominent in all our civil and political history and
has been from the first recognized and acted upon by the
people as well as by constitutional conventions, by legis-
latures and by courts of justice." M
This much premised, we say that the State is entitled to
legislate concerning Marriages of non-baptised persons**
For whatever belongs to the State, by reason of persons
or matter, is subject to the State's power to make laws.
And since Matrimony, as a public institution of great
importance, interests the State, and the contracting par-
ties, as citizens, are subject to it, the competency of the
civil authority is evident. We need not dwell upon this
argument. As to the first premise, every one will readily
concede that the range of civil legislation is as wide as
the end for which the State is established. This end is
the temporal welfare and prosperity of men, and there-
fore the State must be competent in all such matters.
Marriage, too, as far as it is merely a natural contract,
falls in this category because it is, as St. Thomas says,
a means of propagating the political society, which is
maintained by family life. A family is founded by the
union of a man and a woman, and this union is effected
by the consent of both or the nuptial contract. Hence
the civil authority is empowered to surround this contract
with such safeguards as are apt to guarantee a well or-
54 K. Zollraann, American Civil Competentia Civili in Vinculum
Church Law, 1917, p. 1* f. Conjugate Infidelium, Rone, 1887.
DO We follow here Resemans, De
§le
£ " ^ ^_J , Original fro m
UNIVERSITY OF WISCONSIN
32 MARRIAGE LAW
dered and prosperous relation. But the State, no more
than the Church, has the right to supply, essentially alter
or abolish the mutual consent, because it is the essence
of the matrimonial contract Besides, since Marriage
has been established by the Author of nature for a well-
defined purpose, which precedes all human intervention,
the State has no power to limit or prevent the scope of
Marriage. Lastly, since indissolubility and unity of mar-
riage are dictated at least by secondary conclusions drawn
from natural law, the civil authority ought to refrain
from framing contrary laws.
Another argument for our thesis may be derived from
the fact that the contracting parties are withdrawn from
the sphere of ecclesiastical legislation. As the Church
has no jurisdiction over the unbaptized, either the indi-
viduals or civil society as such must regulate their Mar-
riage. To leave this important matter in the hands of
individuals is impracticable, because selfish and sensual
motives would cause them to pervert the true notion of
Marriage. Hence only the legitimate civil authority can
impartially and equitably moderate and direct the sacred
institution according to the dictates of public welfare and
common exigencies.
The extent of the legislative power of the State over
the marriages of the non-baptized has been stated at the
beginning of this section. One thing should be added.
We except no impediments, unless, of course, they clash
with the natural or the positive divine law. Concerning
the authentic interpretation of the divine law, the Code
states that it lies exclusively with the supreme ecclesiasti-
cal authority Bfl to determine whether it invalidates or im-
pedes marriages. As the text here does not add, "of
baptized persons," it seems to include all marriages.
B< Can. ioj8( | x.
*r*nnl*> Original from
lOOglL UNIVERSITY QFWI5C0NSIN
■
pi
CANON 1016 33
Therefore it is safe to say that authentic declarations
must be expected from the Church alone. Of course, the
Church will not give decisions in cases that are not
brought before her tribunal. But it is not asking too
much of the civil authorities that they should take cog-
nizance of her views and laws.
Is the thesis we defend safe to hold? It is undoubt-
edly safe, because the majority of eminent canonists "
propose and Roman decisions plainly admit it. Thus
the S. C. Prop. Fide says: " Marriages of infidels must
be governed by natural and civil law." 68
This would be sufficient for the explanation of our
canon. However, as we have adverted to civil laws, it
may not be amiss to add a word or two about our State
laws concerning Marriage. Broadly speaking it is safe
to say that our civil laws do not interfere with the laws
of the Catholic Church, if we except divorce. Polygamy
is suppressed and punished, but the law is indifferent to
the theological doctrine of polygamous marriage " for
eternity," such as the Mormons propose.59 For the
greater part of marriage law turns about the class (race)
and conditions of parties to a marriage, the prohibited
degrees of kindred, the marriage license, and the duties
of the solemnizing clergymen. It would exceed the
limits of this commentary to cite the laws of the different
States. We may refer the reader to the Ecclesiastical
Review Year Book for 1910, and to the Ecclesiastical
Review, Vol. 42, pp. 586 f .
•T Ctvagnii, De Angelis, Guparrl, m Cfr. Cott. P. F., Vol. I, p. 435;
Laurin, Santi-Leitaer, Wernz; cfr. n. 71; n. 744.
Retcnuns, p. 54. ft» Zollminn, I. c„ p. 12.
I ,:1;- Original from
UNIVERSITY OF WISCONSIN
34 MARRIAGE LAW
BETROTHAL OR ENGAGEMENT
After determining certain preliminary questions and
notions in regard to Matrimony the Code discusses the
preparatory act, j. c, betrothal. Note that engagement is
not put under Ch. I, which treats of the things that must
precede Marriage. This shows that it is not essential to
marriage. Too much importance should not be attributed
to it. A few historical observations, however, may not
be amiss.
I. Engagement is a promise of marriage, the Latin
term, sponsalia, being derived from spondere, to promise
or to stipulate. The ancient Greeks employed the term
spontkai, which originally signified drink-offerings made
to the gods in the act of betrothal. The modern Greeks
call them mnesteia instead of progameia or proteleia.60
With the Hebrews a certain solemnity preparatory to
Marriage was in vogue. These were the thenaim or
schidduchim, which terms properly signify the promise
of the parents or guardians to give the girl in marriage.
The more elaborate ceremonies described by the Mishnah
3.
of Rabbi Raba,01 are of a later date.
Engagement occupies a prominent place in the Roman
Law,02 from which we gather that sponsalia were made
by consent at an age when the parties knew what they
were doing. A breach of promise was severely punished
in the bride, but not in the bridegroom,08 and a second
promise, if broken, entailed infamy.** Formerly the
privilege of a lawsuit (actio in id quod interest) was
oo Cfr. Cironius, Paratitla, 1. «i Benedict IV, "Pottremo man-
IV, tit. i, n. 4; Milasch-Pessic. K.- «," Feb. 28, 1747. II 62 H.
R. der abtndlind. Kirche, 1905, p. 82 Dig., I. aj.
587. Nicholas I defines Bponsalia as 08 L. 13, I j, Dig. 48. 5.
"futurarum nuptiarum promiisa 84 L. 13, Dig. § 3, Dig. 3, a.
feedera" <c. 3, C. 30, q. 5).
jle
, ,| , Original from
UNIVERSITY OF WISCONSIN
CANON 1016 35
granted before the judge, but later on this was prohib-
ited"
The Germanic tribes (Alamanni, Bavarians, Franks,
Lombards, Saxons) admitted a promise made by the
father or guardian of the bride, when she was delivered
into the power (mundium) of the groom. The latter
had to pay a stipulated sum and to promise to marry her.
From this promise followed the obligation of loyalty and
the right to punish the bride as if she were guilty of
adultery. An engagement could be dissolved for leprosy,
insanity, or blindness befalling the bride. If it was
broken off without a just cause, a fine was imposed upon
the bridegroom or the guardian of the bride.66
There can be no doubt that the early Christians, fol-
lowing the Roman law, observed a time of preparation
or engagement before Marriage. The first known docu-
ment touching ecclesiastical legislation on betrothal is a
canon of the synod of Ancyra (314). The matter is
more plainly mentioned in a letter of Pope Siricius (384-
398) to Bishop Himerius, which speaks of the sacerdotal
blessing accompanying the act."7 In the eleventh or
twelfth century we find an impediment called " quasi-
affinitas" or public honesty attached to engagement.
This impediment at first concerned only the bride,*" but
Innocent III extended it to the groom and to the fourth
degree.89 Boniface VIII limited this law to certain en-
gagements excluding all spurious and conditional ones as
long as the condition was not fulfilled.70 The Council of
05 L. 15, I --.;. Dig. 47, 10; Gel- 16; edict. Roth*, cc. 179, 180, 192',
liu». Node* Atticae. 1. 24. c. 4. Lex Luitp., c. 119.
MLex Visigoth, III, if 2; III, 4. 67 CousUnt, Epp. R. Pontt., 1721,
»; III, 6, 3; L. Rolk. Longob., c. coll. 627 £.; c. 50, C. 17, q. j.
179; Lex Salica, 12, 10; Lex Atom. 68 C. 3, Comp. I, IV, t.
Hlothwic, Lex, 52; Lex Bojuv., 8, o» C. 5. X, IV. j; c. 8, X, IV, 14.
70 C. an. 6-. IV, 1.
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
>gle
■
36 MARRIAGE LAW
Trent restricted this impediment to the first degree.71
Now it is abolished.
As to the formalities of betrothal, no law was ever
universally introduced to oblige the parties to observe
any special ceremonies. Spain had a peculiar law since
Charles Ill's Pragmatic Sanction, which provided that a
valid engagement had to be set down in writing.72 This
statute was at first tolerated by the Church and is now
formally established as a universal law.
Can. 1017
§ 1. Matrimonii promissio sive unilateral is sive bila-
teralis seu sponsalitia. irrita est pro utroquc foro, nisi
facta fuerit per scripturam subsignatam a partibus et
vel a parocho aut loci Ordinario. vel a duobus saltern
testibus.
§ 2. Si utraque vel altemtra pars scribere nesciat
vel nequeat, ad validitatem id in ipsa scriptura adno-
tetur et alius testis addatur qui cum parocho aut loci
Ordinario vel duobus testibus, de quibus in § i, scrip-
turam subsignet.
§ 3. At ex matrimonii promissione, licet valida sit
nee ulla iusta causa ab eadem implenda excuset, non
datur actio ad petendam matrimonii celebrationem ;
datur tamen ad reparationem damnorum, si qua de-
beatur.
§ 1. A promise of marriage, made either by one party
or by both, is void of effect in the court of conscience as
well as in the external forum, unless it is made in writing
and signed by the parties themselves and by the parish
Ti S«m. 24. c. 3, dt ref. oeces., XII, 5, 1; 4. S. S., I, 528;
tx Benedict XIV, De Sy*. Di- XIII, 185 if.
ogle
£ * -» ,,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 1017 37
a
priest, or the diocesan Ordinary, or at least two wit-
nesses.
This paragraph lays down the requisites of a valid
betrothal and its consequences.
(1) The promise may be made unilaterally (by one)
or bilaterally (by both). This distinction refers to con-
tracts. A contract is an agreement between two or more
persons to do or not to do a particular thing." A uni-
lateral contract (pactum nudum) is one that obliges one
person only, as if James would say: "I will marry you,
Gemma," without any obligation on Gemma's part to
marry James. Such a contract is hardly imaginable, and
the English law 74 looks upon unilateral promises of this
kind, without a consideration of some sort or other, as
totally void of juridical effect. Our Code, according to
the views of most canonists, admits such a contract, pro-
vided it complies with the necessary requisites. The
whole question is speculative rather than practical. A
bilateral contract obliges both parties equally and be-
longs to the species of contractus innominati, more espe-
cially those called facto ut facias, when a man agrees to do
something for another, provided the other does something
for him. A marriage promise, therefore, is an agree-
ment of future marriage between two determined per-
sons.
(2) These persons are not described in our Code.
But it stands to reason that they must be capable of mak-
ing a contract, as the Gloss says : All persons who un-
derstand the nature of a contract, and are not prohibited
Tl Cfr. Blftckstone-Cooley, Com- ?4 Herein the English law follows
ment., II, 442; cfr., I. !, Dig. II, the Roman; but Canon Law differs
14: "Duorttm vtl plurium in idtm from both aa to the moral obliga*
plaeitum consensus"; on contract! in tion; Easel, I, 35, n. 10.
general see X, I, 35, d« pactis, and
the commentators.
>Ie
f ■ J ^ Original fro ni
UNIVERSITY OF WISCONSIN
38 MARRIAGE LAW
*
by law, may enter upon an agreement.78 This excludes
those who are actually or habitually deprived of the use
of reason or of the necessary senses, unless the latter are
supplied by artificial means.70 As to age, the Code de-
termines nothing except so far as marriage itself is con-
cerned." But no restriction is made or year fixed, and
hence if reason and senses are not wanting, any age is
admissible. As to freedom from compulsion we refer to
can. 103, which renders any act done under external
compulsion, invalid. Fear would, according to the same
canon, not render a betrothal invalid, but merely re-
scindable.
(3) As regards the contract itself, it must be an exter-
nal manifestation of internal consent. Hence a frivo-
lously or fictitiously given consent would be invalid.
Such a thing is now almost excluded, and if it is not en-
tirely excluded, the alleged motive would require strict
proof.78 The consent may be given, as formerly, by
proxy,79 for neither the " Ne temere " nor the Code ex-
cludes this mode. But the proctor would have to show
his credentials and be instructed by the respective par-
ties ad hoc and for a determined person.
(4) The object of the promise is future marriage, not
the promise itself; wherefore if James and Gemma would
merely intend to make the promise without any intention
of marrying one another, it would be null and void. But
there may be a real intention of marriage with an impedi-
went blocking the way of its fulfilment; for instance,
consanguinity. Is it permissible to contract an engage-
TflAd C. 33. X, IV, 1. S. S„ I, 34a; TIT. 304; VII. 667.
70Cfr. Wernz, /. fc, IV, Vol. I. p. 70 Cc. 1, 11, X, IV, 2; c. 9. 6", I.
124, n. 93. 19; 1. 2, Dig. II, 24; tbis extension
77 Cfr. can. 1067. is made from the parents to the
78 S. C. C, Dec. 18, 1728; March proctor.
ia, 1739 (Richter, Trid., p. 222) : A.
>Ic
£ * ^ .. -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 1017 39
ment notwithstanding such an impediment? And if con-
tracted, would it be valid? Supposing the prescribed
form to have been duly observed, the answer is as fol-
lows:
(a) If the impediment is one that cannot be removed
by a dispensation, the promise is both invalid and illicit,
because the object of the promise being marriage, and
marriage being impossible, forbidden, and therefore sin-
ful, the promise has a sinful object and is therefore desti-
tute of the necessary moral and juridical qualities,
namely : liceity, honesty, possibility.80
(b) If the impediment is of a kind that may be and
generally is removed by a dispensation, the nature of the
promise depends on the intention of the contracting par-
ties. If they conclude the engagement without regard to
the permission to be obtained, or with the intention of
forcing the authorities to grant a dispensation, their
promise would be sinful and, we believe, invalid, because
no one may bind himself to commit a sin. If the parties
enter upon the engagement with the express condition,
" provided we can obtain a dispensation," the promise
is valid and the parties would be bound to apply for a
dispensation and await the grant. In case of refusal,
both would be free to enter a new engagement with some
other party not subject to an impediment.81 However,
these hypotheses are novv-a-days rather futile, because if
the pastor is present, he will tell the parties to abstain
from an engagement until the dispensation is obtained.
The required witnesses, too, would probably be aware of
the impediment and caution the parties.
Q
soCfr. L 137. Dig. 45, a; A. S. ar Wenu, I. c, IV, 1, p. 127 t.
S., I, 78, 81, hi; S. C. C, Jan. a6, pays too much attention to a deci-
1709; Dec. 12, »733 (Richter, Ttid., aion of a nameleai congregation
p. aao); v. Scherer, II„ 130. quoted by Giovine.
gle
,|,, Original fro m
UNIVERSITY OF WISCONSIN
40 MARRIAGE LAW
The same distinction applies if the impediment is only
, a prohibitive one, for instance, mixed religion. If the
parties engage themselves unconditionally, i. e., without
the explicit mention of the condition, " Provided we can
obtain a dispensation," or, " Provided you become con-
verted," or, " Provided the impediment ceases," the prom-
ise is invalid, because the contract is illicit as promising a
dishonorable thing.8* But if the condition is added, the
promise holds good and is licit, since the parties wish to
abide by the decision of the Church and therefore, what
they promise each other is not dishonorable.
If parents (not relatives or guardians) are, for weighty
reasons, opposed to an engagement, for instance, be-
cause of danger to the faith or to the peace of the family,
the promise is invalid unless made with the condition:
w If the parents consent," because it violates the natural
law, which dictates submission to parents in all lawful
matters.88 If the parents' opposition is unreasonable,
for instance, based merely on considerations of money,
social standing, or personal dislike, the promise is valid
and licit.84
Soldiers may lawfully and licitly contract engagements
during military service, for in time they may marry.
(5) The form of betrothal is now strictly prescribed.
The engagement must be made in uniting. And here we
may add what § 2 of can. 1017 says: "In case both par-
ties or one of them, does not know or is unable to write,
it is required for the validity of the act that this fact be
noted in the document itself and another witness be added,
who, together with the pastor or the Ordinary of the dio-
cese or the other witnesses, shall sign the document"
"-.
82Cfr. 11. a6 f. Dig. 45. 1; I U, 8*C. tin. C. 31, q. j; cc i. 4. II,
Inst.. III. i«; c. 8. X. I. 35. X. IV. a.
§8 Sanchez, I. IV, di«p. *3, o. 11;
Gasparri, /. c, n. *«.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 1017 41
From these two paragraphs it follows:
(a) That writing is absolutely necessary; but no spe-
cific form is prescribed, provided the intention is clearly
manifested. And here we must return to the " unilat-
eral" promise. If James wants to make a promise on
his part only, without obliging Gemma to marry him, he
may do so. But in that case what necessity is there for
Gemma's signing her name to such an informal contract,
which leaves her free to marry? So far it has generally
been held that the promise of one party must be followed
by the promise of the other, which was called repromis-
sio,w because the object was marriage between two de-
termined or designated persons.88 Such written engage-
ments are not likely to become popular.
(b) If both contracting parties, or one of them, does
not know how, or is unable to write, a substitute must be
employed and the fact be set down in the paper embodying
the engagement. The Code adds to the decree " Ne
tetnere " the words: " vel nequeat." Hence the inability
to write may be either intellectual (nesciat) or physical
(nequeat). The one indicates illiteracy, the other may
be caused by sickness, for instance, paralysis or bodily
weakness. In all such cases a substitute or additional
witness must be employed, who shall sign his own name,
not that of the parties, and the fact must be expressly
noted.
(c) Besides the contracting parties and the additional
witness, where such a one is required, there must be
official witnesses and private witnesses to every canonical
engagement.
s
85 Bockhn, IV, 1, n. $3; Gajparri, 1735 (Richter, Trid.. p. a», n. 6).
L c, n. 5a; the "Ne trmere" hai no If one party said "I take thee and
each "unilateral" term. none clac," it was conaidercd insuffi-
8«S. C. C, April 14. July ij, cient.
;Ic
, ,.] , Original fro ni
UMIVERSITYOF WISCONSIN
42 MARRIAGE LAW
o) The official zwtnesses are either the pastor or the
Ordinary of the diocese. The pastor may be anyone
whom the Code describes as such.87 It is not necessary
that he be the pastor of either of the parties, as the appo-
sition " proprius " is not found in the text.88
Delegation is not admissible either for the pastor or
the Ordinary.80
Distinct from delegation is the office of vicar or as-
sistant (oeconomus), i. e., a priest who has entire charge
of a parish ad interim.09
As to military chaplains, their faculties must be con-
sulted.81
An assistant (cooperator; see can. 476), though he may
have general delegation to assist at marriages, may not be
official witness at a betrothal, because the interpretation
given to the text excludes all delegation, hence also ha-
bitual delegation.
p) The private witnesses, if pastor and Ordinary are
absent, must be at least two. Concerning the qualities
of these witnesses nothing is said in the text, but it is
evident that they must be able to write and to under-
stand what they are doing. For the rest, it does not mat-
ter whether they are men or women or what their moral
character or religious belief may be.
(d) The parties or their substitute, i.e., the addi-
tional witness and the other witnesses, i. e., the pastor, the
Ordinary, or the two private witnesses, should sign the
engagement contract in the presence of one another}
Hence they must all be present at the same time. The
certificate must show the day, month, and year of the
87 Cfr. can. 451. 90 Can. 451, 9 *. n. 2.
88 S. C. C, March 30, 1908, ad 91 Ibid., n. 3,
VIT. Cfr. can. 334. I >■ 1 S. C C. July »7, 1008, ad I.
89 S. C. C, March jo, 1908, ad
VI.
1 by Google
J ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1017 43
engagement in order to be valid.2 The place may con-
veniently be added, but is not required for validity.
6. The effects arising from a valid betrothment are
the following :
(a) The parties are bound by a grievous obligation
to contract matrimony. The time is left to their own
prudent judgment, but it should not be unreasonably pro-
tracted.
If the engagement contract was made with the ex-
plicit stipulation of a certain date for the marriage, —
ad finiendttm contraction, — the engagement contract be-
comes null and void after the lapse of that time, and both
parties are free. If the date is not set as a condition
proper, but only in order to accelerate the fulfillment, —
ad urgendum contractum, — the parties should get mar-
ried within a reasonable time.3 In the latter case the
ecclesiastical judge may, of his own accord, determine the
time within which the marriage must take place. Thus
the Ordinary may appoint a term of six months on con-
dition that if the marriage is not performed within this
period, the betrothment becomes void.*
(b) An engagement made with another person whilst
a former engagement is still valid, is without effect, even
if made under oath.5
(c) A third effect is moral. If one of the contracting
parties has carnal intercourse with a third person, the act
involves a sin against justice.8 However, since not a few
moralists contradict this statement, especially concerning
the groom, it is difficult to admit a change in the species
of the sin.T
» Ibid., ad II. B Reg. Juris 60 in. 6°; c 18, X.
SCfr. I. 14. Dif. 50, 17; 1. 14. II. 34; Boekbn, IV, 4. 1-
Dig. 45. »l Guparri, /. e., n. xai. a Thus Bockhn, IV, 4, n. 103;
4 S. C C, Oct. a, 17*3 (Richter, Benedict XIV, Inst., 46, c 19.
Trid., p. a*3, n. ao). 7 Thus Noldin, De Sexto Prmt-
ctpto, 1905, p. a 1.
gle
Original from
UNIVERSITY OF WISCONSIN
44 MARRIAGE LAW
(d) A fourth effect is the negative one mentioned in
§ 3 of can. 1017, which reads thus: From the promise
of marriage, although this be valid and no just reason
excuses, no action is admissible to compel the celebration
of marriage. However, an action to recover damages is
permitted. Because marriage should be freely entered
upon, and forced marriages seldom have a happy issue,8
the legislator forbids any lawsuit to be brought against
the recalcitrant party. For the same reason various de-
cisions of the Roman Congregations admonish ecclesi-
astical judges not to threaten unwilling parties, espe-
cially wcfrnen,9 with censures. However, if damage was
done, especially in case of pregnancy or contracted illness,
or if expensive preparations were made for the marriage,
the party guilty of a breach of promise can be sued for
an amount sufficient to cover the expenses. A penalty
or fine added to an engagement contract for the party
violating the same has no juridical effect, since such a
penal sanction would be unlawful.10 Small presents11
given on the occasion of an engagement may be either
reclaimed or condoned.
Note that all these effects follow only betrothments
made in writing, as prescribed by the Code. No other
form of engagement, no matter how pompously cele-
brated, produces any of these effects, either before the
tribunal of the ecclesiastical judge, or in the court of
conscience. Hence confessors have no right to oblige
anyone to anything arising from a broken informal en-
gagement, though it goes without saying that a man who
has damaged a young lady's reputation by undue famili-
8 Cc. 2, 17, X, IV, 1. t. v. "gemma"; Sanchez, IV, i, 140.
» S. C. C, March 30, 1748 (Rich- 11 Arrhat, from the Hebrew arab,
ter, Trid., p. aaj, n. 18): S. C. P. or Greek arrabon, £#., pawn, art
P., Not. 21, 1790 (Coll. n. 603). Riven aa 1 token and proof of en-
10 See the glosa on c 29, X, IV, 1 gagenient; Forccllini, Lexicon, 1. v.
jle
Original from
UNIVERSITY OF WISCONSIN
:
CANON 1017 45
1
St
arities is bound in conscience to make restitution, or if
no remedy can heal the damage, to marry her. This
obligation arises not from the betrothal, but from the
natural law and has nothing to do with the form of en-
gagement. If a valid engagement has preceded a breach,
caused, for instance, by a marriage with another person,
the competent judge to decide in a damage suit is either
the ecclesiastical or the civil court. But a lawsuit for
recovery of damages does not suspend the marriage with
another, neither has it any effect on the merits of the
cause that brought about the breach and the new mar-
riage. In other words, the suit must be strictly limited
to the recovery of damages sustained by the breach of a
legally valid betrothal.
To this authentic interpretation a remark must be ad-
ded The Code has abolished the impediments which
formerly followed valid betrothal. Hence no prohibitive
or invalidating impediment, — public honesty (can. 1078),
— arises even from a valid engagement. It was but natu-
ral that a doubt should arise as to the retroactive force
of the Code (can. 10) with regard to impediments con-
tracted before the new law went into effect. The papal
Commission for the Authentic Interpretation of the
Code 12 has decided that no retroactive force must be
attributed to the Code concerning betrothal and marriage,
but that both are governed by the present law when they
are already contracted or shall be contracted, excepting
only the action mentioned in can. 1017, § 3. This means
in plain English that a betrothal, though made before
May 19, 1 918, produces no impediment to a marriage
contracted after that date. ^Therefore James, validly en-
gaged to Gemma before said date, may marry her sister,
daughter, or mother without any dispensation.
lajune 2-3. 1*18 04. Ap. S., X, 345).
oogle
k ,|,, " riginal from
UNIVERSITY OF WISCONSIN
46 MARRIAGE LAW
Our civil laws do not differ much in this point from
the ecclesiastical law. Thus the different States of the
Union acknowledge no strict obligation of marriage,
nor do they grant legal action on account of a betrothal,
but allow the party suffering from a breach of promise
to bring a damage suit.18 In England, 26 Geo. II, c. 33
enacts that no suit shall be heard in any ecclesiastical
court to compel a celebration of marriage in facie eccle-
siae for or because of any contract of matrimony what-
soever.14
7. Dissolution of Engagements. For the cancelling
of an engagement contract/' says a recent commentator IB
on the decree " Ne temere," " no new rules have been
made in this decree. The reasons, therefore, heretofore
commonly held to be sufficient by moralists and canonists
will suffice also now for the breaking of the engagement
contract." This remains true after the promulgation of
the Code, because no special provisions are made to that
effect. Neither does Bk. IV mention betrothal in treat-
ing of marriage procedure, nor is it touched in the chapter
on dispensations. All this is but the logical consequence
of the present legislation, which has removed all impedi-
ments that formerly arose from valid betrothal. The
reasons proposed by canonists as permitting the solution
of an engagement were briefly these :
(a) An engagement may be cancelled by mutual con-
sent according to the Regitla luris: " By whatever
causes a thing is produced, it may be dissolved by the
same." ia Thus engagements made by impuberes may
be cancelled by them after they have reached the age of
puberty, even though made under oath.17
".
13 Bishop, New Commentaries on 10 Reg. Iuris in 5* (c. i, X, V,
Marriage, 1891, I, 8 226 f. 41).
14 Blackstone-Cooley, I. c, III, 94. " Cc. 7, io, X, IV, 2,
16 S. Woywod, Marriage Laws,
»9'3. P- 9-
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1017 47
(b) An engagement is cancelled by marriage with an-
other. Thus if James, after having been engaged to
Gemma, marries her sister, the prior engagement is
broken, and Gemma is free to marry another. Nor
does that obligation ever revive,18 especially now, since
there is no impediment attached to betrothal, it seems but
natural that the obligation should cease altogether after
the marriage.
(c) An engagement is cancelled if one of the parties
embraces the religious stole, or rather makes profession,
for the latter act implies the religious state. Formerly
religious profession and solemn vows were considered
equal, and older canonists, like Panormitanus 10 and
Sanchez,30 attributed the power of cancelling a betrothal
only to solemn, not to simple, vows. However, the pres-
ent tendency and the view sustained by our Code favors
equalization of religious vows on that point. The
Code n makes the act of embracing the religious state a
prohibitive impediment without distinction. Hence it is
safe to say that if both parties would make religious pro-
fession, the engagement would be dissolved. It is also
certain that if one of the parties makes solemn profession,
the betrothal is dissolved.22 Finally, the present practice
of the Church favors the view that even temporary pro-
fession, made in either a papal or diocesan institute, can-
cels a marital engagement. For every engagement is
understood to contain the implied condition : " Unless I
choose a more perfect state." M The religious state, hon-
ored and distinguished by the Church, enjoys the favor
of law and preference. Of course, a resulting damage
18 Thus Sanchez, v. Scherer, 20 De Mat.. I, disp. 46 f.
Wcrnz, etc., whose views are. the- 81 Can. 1058.
oretically speaking, the only correct 22 Cc a, 7, X, III, 33.
and moral ones. aa Wernz, IV, 1, n. 113, note 118.
IB Ad c. s, X. 6, n. 6.
jle
Original from
UNIVERSITY OF WISCONSIN
48 MARRIAGE LAW
suit would have to be settled either peaceably or in court,
(d) An engagement may be cancelled for personal
reasons. A valid personal reason would be, (a) If one
of the engaged persons would absent himself from the
other for a long time without giving notice.24 (/?) If the
moral character of one of the parties has considerably
deteriorated. Hence, any attempt at making another en-
gagement or having sexual intercourse with a third person
would justify the innocent party in withdrawing from the
engagement. Sexual intercourse with another than the
engaged person, made known only after the engagement,
but had before it, is a sufficient reason for breaking the
contract,25 unless it has been condoned. If both parties
have committed fornication either before or after their en-
gagement, and no pardon has been given, both may recede
from the engagement." A considerable deterioration in
character would take place if one became a spendthrift
or drunkard, or had to face an accusation in a criminal
court." (y) If a physical or mental change has taken
place in both or either of the engaged persons. Mental
derangement, especially if incurable, or a contagious and
lasting sickness, or a noticeable deformity of the body,
would be a sufficient cause for breaking an engagement. a*
(8) If a change of fortune or social condition should
occur in one of the parties, the other would have reason
to withdraw from the engagement. Thus if a poor fel-
low or girl should receive a rich legacy or bequest, or if
a social or political or commercial event would raise him
-
14 C. 5, X, IV, i. bom. Coll. n. 17. s. v. "Sponsalia") ;
»»Boekhn. IV. 1. n. 150: "fiaria S. C. C. May ag, 185a (LinBen-
s -.<''.: in iure nunc scire el nunc Reuss, Causae Selects*, 1871. pp.
esse." 881 f.>.
28 Cc. 6, 7. X, IV, 16; v. Scherer, 28 S. C. C, May 14, 1729 (Zam-
II, p. ij4. boni, /. c, n. ao) ; c a$, X, II, 14-
ST S. C C, Not. 14, 17*5 (Zara-
§le
£ " ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 1018 49
to " higher " social rank, there might be a reason for
breaking the engagement, not only on the advantaged
side, but on both. For too great disparity in fortune and
social position often causes marriages to be unhappy."
(e) Finally, family reasons may render the dissolu-
tion of an engagement advisable, e. g.t if serious enmi-
ties, hatred, dissension, aversion are apt to result from the
contemplated marriage, as is sometimes the case in feu-
dally inclined nations and countries. The S. C. of the
Council has repeatedly cancelled engagements for this
reason. Another cause would be strong parental oppo-
sition, but not in all instances, even if threats of dis-
inheritance are employed.80
Whether engaged parties are obliged to manifest to
each other their secret defects is a debated question.
Justice certainly obliges one to reveal such defects as
would prove very injurious to the other, for instance,
pregnancy, contagious disease, etc.81 Concerning juridi-
cal procedure nothing need be added, since the ecclesias-
tical courts would hardly occupy themselves with a
damage suit, or if they did, would decide it summarily.82
Can. 1018
instructions on marriage
Parochus ne ornittat populum prudenter erudire de
matrimonii sacramento eiusque impedimentis.
Before turning to the chapter on immediate prepara-
tions for marriage, the Code exhorts pastors to instruct
MWem, /. e.. IV. I, n. 116. 83 The Roman Pontiff, and he
•• S. C. C, Feb. 28, i73J; Nov. alone, may dissolve engagements;
*9> i/Sj, July |ff 17*8 (Zamboai, but they are hardly ever brought
I. c, nn. 28, 41, *3>. before him.
81 Dc Smet, /. ft, p. 35 f.
>Ic
v ,1,., Original from
UNIVERSITY OF WISCONSIN
SO MARRIAGE LAW
their people on the Sacrament of Marriage and its im-
pediments. It does not say how often such instructions
should be given or on what occasions. Instructions may
be public or private.
(a) Public instructions (given, for instance, on the
second Sunday after Epiphany) should be couched in
general terms and deal with the nature and dignity of the
Sacrament, the duties of the married towards each other
and their children, and their respective rights. Leo
XIII, addressing chiefly the bishops, says: "Let spe-
cial care be taken that the people be well instructed in
the precepts of Christian wisdom, so that they may al-
ways remember that marriage was not instituted by the
will of man, but, from the very beginning, by the author-
ity and command of God; that it does not admit of a
plurality of wives or husbands; that Christ, the author
of the New Covenant, raised marriage from a rite of
nature to a Sacrament, and gave to His Church legis-
lative and judicial power with regard to the bond of
union"83 The evil of divorce, illustrated by statistics,
may also form a topic of public instruction.
(b) Private instructions should be given to those who
are about to enter the married state by the pastor, along
the lines laid down in Pastoral Theology and in the canons
which immediately follow the present one. The con-
fessor, too, may, if he is asked or finds that the parties
are ignorant, instruct them on the lawfulness and the
obligations of marriage. He may tell them that every-
thing is permitted that is conducive to the end and pur-
pose of Matrimony, and that, generally speaking, sins
against chastity among married people are not grievous,
unless illicit means are employed.8*
81 " Arcanum," Feb. 10, 18S0, cd. Wynne, I. c, p. 79 f.
3* Cfi. De Smct, /. c, p. 461.
>gle
\ ,1,., Original from
UNIVERSITY OF WISCONSIN
CHAPTER I
ON THE PRELIMINARIES OF MATRIMONY AND ESPECIALLY
THE BANNS
This chapter deals with certain preparatory acts, espe-
cially the examination of the candidates and the procla-
mation of the banns.
■
Can. 1019
§ 1. Antequam matrimonium celebretur, constare
debet nihil eius validae ac licitae celebrationi obsistere.
§ 2. In periculo mortis, si aliae probationes haberi
nequeant, sufficit, nisi contraria adsint indicia, affirma-
tio iurata contrahentium, se baptizatos fuisse et nullo
detineri impediments
-
Before a marriage may be celebrated, certainty must be
had as to whether there exists an obstacle to its validity
or liceity, for, as will be explained further on, a Marriage
may be contracted validly, yet unlawfully, because pro-
hibited by the Church. From this the distinction be-
tween prohibitive and invalidating impediments appears.
Pastors are sometimes called to a sickbed, or rather
deathbed (periculo mortis), to " straighten out" a mar-
riage. The couple is alone, without witnesses and pa-
pers, perhaps strangers in a far off country; what is to
be done ? When there is danger of death, and no other
proof can be procured, and signs do not point to the con-
trary, the sworn statement of the parties that they are
SI
►ogle
£ " ^ , ,|y. Original fro m
UNIVERSITY OF WISCONSIN
52 MARRIAGE LAW
baptized and suffer from no impediment will suffice to
admit them to the celebration of marriage. Note the
requirement of baptism, which is not further determined,
wherefore valid, nay presumably valid, Baptism suffices.
Of course, if the parties should wish to be baptized con-
ditionally, this would settle the first requisite. But the
time may be very precious. We believe that, if possible,
a witness should be called to hear their sworn testimony.
c
s
THE BRIDAL EXAMINATION (EXAMEN SPONSORUM)
After having glanced at the quotations in Cardinal
Gasparri's edition of the Code and searched for the in-
structions which were said to be universal law by some
authors,1 we were surprised not to find any reference to
those which emanated from Rome in 1658, 1665, and
especially 1670. The last-named instruction is a rather
extensive document.2 Traces of such questioning may
be found in a Capitulate Regum Francorum and allu-
sions to it in Gratian's Decretum and the Decretals.8
But of a previously existing universal law we could dis-
cover nothing. The Code now prescribes such an exami-
nation in
Can. 1020
§ 1. Parochus cui ius est assistendi matrimonio, op-
portune antea tempore, diligenter investiget num.
matrimonio contra hendo aliquid obstet.
§ 2. Turn sponsum turn sponsam etiam seorsum et
caute interroget num aliquo detineantur impedimenta,
an consensum libere, praesertim mulier, praestent, et
1 Cfr. Werni, /. c, IV, i ed., p. V, c. 4; c. 13, C 3a, q. 6; c. 19, C.
189. .«5. 1- * »"d 31 c- 3. xt IV» 3 <*-*t.
* Collect P. P., I, n. 19a. Counc. IV) ; v. Scherer, /. CH II, p.
s Cap. 35; also in the Liber Ca- 145.
-
nonum. Cod. Vat. 1339, fol. 254, 1-
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1020 S3
an in doctrina Christiana sufficienter instructi sint, nisi
ob pcrsonarum qualitatem haec ultima interrogatio in-
utilis appareat.
§ 3. Ordinarii loci est peculiares normas pro huius-
modi parochi investigatione dare.
§ i. The pastor who is entitled to assist at a marriage
shall, at a convenient time, carefully investigate whether
there is an obstacle to the marriage to be contracted.
He may delegate another, for instance, his assistant, to
make this investigation. But the personal obligation re-
mains, insofar as negligence on the part of the delegate
would recoil on the pastor. If the parties belong to
his parish, the parochial books should be consulted and
relatives who know the parties asked. If the parties are
strangers, the investigation is more difficult, but should
be conducted by means of a friendly correspondence be-
tween the pastors. Here the value of properly kept reg-
isters appears. Of course, if the pastor is certain as to
the perfect freedom of the parties from impediments, no
investigation is necessary; in the case of an elopement
or a hurried marriage, it is often impossible. This is
the previous and, we might say, informal investigation.
§ 2. At a fixed date follows the examination proper.
The pastor who is entitled to assist at the marriage,
should question the bridegroom and bride separately
and cautiously as to the possible existence of an im-
pediment, ascertain whether both, especially the woman,
consent freely to the marriage, and whether they are
sufficiently instructed in Christian Doctrine. The last
question may be omitted where the character and stand-
ing of the parties renders it useless.
The formal examination has two parts: the juridical
questioning and the doctrinal examination. If we say
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
54
MARRIAGE LAW
juridical questioning, this term must be understood as
far as it relates to the juridically free status. Benedict
XIV in his " Nimiam licentiam" May 18, 1743, from
which our text is almost verbally taken, says: " seorsim
caute et, ut dicitur, ad aurem cxplorare" that is to say,
in a very cautious and strictly private and secret way.
The reason is obvious: the matter is of a delicate nature
and therefore requires prudence. Unnecessary question-
ing, especially about illicit familiarities, might lead to
serious consequences, and the parties might make use of
it in order to get a dispensation more readily. Benedict
XIV (/. c.) advises pastors to ask whether there be an
impediment, and if so, of what kind, whether there was
a former engagement (this is no longer absolutely neces-
sary), and whether the parents consent to the proposed
marriage. About defamatory impediments, such as crime
or public honesty, the pastor should inquire by way of
instruction rather than by direct questioning, or he may
omit this point entirely.4
The doctrinal examination should be held to ascertain
whether the parties are sufficiently instructed concerning
the commandments of God and of the Church, the Apos-
tles' Creed, the " Our Father," " Hail Mary," the acts of
faith, hope and charity, and contrition.6 However, says
the Code, — and this is a mitigation of the former prac-
tice,6— if the pastor knows that questioning would be
useless, he may omit it with a certain class of persons.
What is meant by personarum quditasf Such qualities
may be of the laudable sort, for instance, in the case of
a well-educated layman who is a prominent Catholic, or
who has written books which prove his doctrinal sound-
4 De Smet, J. c, p. 453 f.
ft RiUalt Romanum, tit. VII, c I,
D. I.
fl Benedict XIV, "Etsi minime."
Feb. 7. 1742. 8 11; De Syn. Dioec,
VII, 14. 3-«-
oogle
Original from
UNIVERSITY OF WI5CGNSI
■
pi
p
CANON 1021 55
ness, or of a lady who has taught Sunday School in a
Catholic parish, or who is regular in attending the ser-
mons and catechetical instructions, etc. But there is
another class of persons v/ho have barely a smack of
Christian doctrine. These, says the authentic interpre-
tation,7 the pastor should diligently instruct, at least in
the elements of Christian doctrine (as set forth above),
but if they refuse to be taught, he may nevertheless ad-
mit them to marriage, in accordance with can. 1066.
§ 3. It is the business of the diocesan Ordinary to issue
special regulations to pastors on the instruction of nup-
turients. This may be done in an appendix to the " Dio-
cesan Statutes," unless the Ordinary himself wishes to
compose or recommend a manual for the purpose.
The S. Poenit, Sept. 5, 1899, says that, besides the
witnesses, the parties themselves may be asked as to the
existence of impediments.
Can. io2t
§ 1. Niax baptismus collatus fuerit in ipso suo terri-
torio, parochus exigat baptismi testimonium ab utraque
parte, vel a parte tantum catholica, si agatur de matri-
monio contrahendo cum dispensation ab impedimento
disparitatis cultus.
§ 2. Catholici qui sacramentum connrmationis non-
dum receperunt, illud, antequam ad matrimoniurn ad-
mittantur, recipient, si id possint sine gravi incom-
mode
§ I. Unless Baptism was conferred in his own parish,
the pastor must demand a baptismal certificate from both
parties, or from the Catholic party only if the marriage
tJum a-j, 1918. n. 3 US* At- s.t x, p. 345).
oogle
Original from
UNIVERSITY OF WI5C0NSI
56 MARRIAGE LAW
is to be contracted with a dispensation from the impedi-
ment of disparity of worship.
The S. C. Sac. had previously insisted on such a certifi-
cate whenever one or both of the parties were baptized
outside the parish whose pastor was to assist at the cere-
mony.8 If they were baptized in his own parish, he
should look up the baptismal record.
§ 2 is new because it demands the reception of Con-
firmation before marriage, provided this Sacrament can
be received conveniently. The reason for this regulation
consists in the sacramental grace of Confirmation, which
strengthens the faith and enriches the state of grace.
D
U
D>
THE BANNS
The fourth Lateran Council B alludes to a custom pre-
vailing in some places, of publicly proclaiming an intended
marriage. This custom was observed in Italy and
France.10 Odo of Soliac is said to have introduced it
into the latter country about the year 1198. The Coun-
cil of Trent prescribed a threefold publication of the
banns.11 The Code determines by whom, when, and
where the publication is to be made, the obligation of the
faithful to reveal existing impediments, and finally the
required dispensations.
p
Can. 1022
Publice a parocho denuntietur inter quosnam matri-
monium sit contrahendum.
■ S. C Sacr., March 6, ion, ad I motion; Du Cause. Cloiiarium, i.v.J
(A. Ap S., III. 102). Calk. Encyl. Vol. II. j. v.
• C. j, X, IV. 3. Buna is from 10 v. Scberer, ;. c, II, 146.
bannum, a public edict or procU- 11 Seu. 24, c. 1; "Tametsi," dt
rtf. mat.
s ,1,., Original from
UNIVERSITY OF WISCONSIN
oogle
■
9
CANON 1023 57
The pastor must publicly announce between whom a
marriage is to be contracted.
Stress is laid on publicly. A public announcement
means one that can be understood by the hearers. There-
fore it should be made with an audible voice, distinctly,
and in the vernacular language. Inter quos signifies the
parries between whom the marriage is to take place. The
baptismal (and also any colloquial) name, the family
name, the condition of the parties, whether married be-
fore or not and the number of publications must be
stated. The age or social condition of the parties need
not be stated, and injurious or ludicrous remarks must
be omitted.1'
Can. 1023
publication to be made by the pastor
§ x. Matrimoniorum publications fieri debent a
parocho proprio.
§ a. Si pars alio in loco per sex menses commorata
sit post adeptam pubertatem, parochus rem exponat
Ordinario, qui pro sua prudentia vel publicationes in-
ibi faciendas exigat, vel alias probationer seu coniec-
turas super status libertate colligendas praescribat.
§ 3- Si aliqua sit suspicio de contracto impedimento,
parochus etiam pro breviore commoratione consulat
Ordinarium, qui matrimonium ne permittat, nisi prius
suspicio, ad normam § 2, removeatur.
§ 1. The publication of the banns is to be made by the
parties' own pastor (parochus proprius), i. e., the pastor
in whose parish the parties have their domicile or quasi-
domicile. The diocesan domicile cannot be alleged in
the case of banns, else all the pastors of a diocese would
uRitvale Rom., tit. VII, c. I, n. ;; De Smet, /. c, p. 43 f .
ogle
j ^ Original from
UNIVERSITY OF WISCONSIN
58 MARRIAGE LAW
be competent to make the announcements. But the ques-
tion naturally arises: Is a pastor parochus proprius of
those who have been only one month in his parish? Can.
1097 allows him to assist at the marriage, and hence it
would seem that he should also be entitled to publish the
banns. Yet we cannot adopt this view 1S because the
law itself as well as a decision of the S. Congregation
of the Council u restricts the monthly stay precisely in
regard to the celebration of marriage. Besides, the pur-
pose of the law, which is to discover possible impedi-
ments, can scarcely be attained by proclaiming the banns
in a place where the parties have resided only for one
month. Lastly, the Code itself manifestly favors our
interpretation, because in § 2 of our canon it speaks of
a six months' stay in another place. Therefore, with re-
gard to the banns only domicile and quasi-domicile 15 are
to be considered. Now it may happen that James has
his domicile in one parish, and Gemma in another. In
that case the banns must be published in both parishes.
The same rule holds concerning quasi-domicile. We may
even stretch the possibilities. If James has a winter
and a summer domicile, and Gemma also has two domi-
ciles different from those of James, the banns must be
published in all four parishes. Also, if James has a
domicile and Gemma only a quasi-domicile, both in dif-
ferent parishes, the banns must be published in both.
As to vagi, or vagabonds, the pastor of the parish in
which they live here and now, must make the announce-
ment.
But what if they have recently left their domicile or
quasi-domicile? This question is answered in § 2. If a
18 Vermeersch, Di Forma Spons. 15 Cfr. can. 92, Vol. II, p. 14 £.,
ti Mai., n. 59. of this Commentary.
14 S. C. Cm March ag. 1908 ad V.
>Ie
v ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1023
59
party has lived in a place other than the parish of the
parochus proprius for six months after the age of pu-
berty, the pastor shall report the matter to the Ordinary,
who may prudently order either the banns to be published
in that place or else proofs or conjectures to be gathered
which establish the party's free status.
§3. If the pastor suspects the existence of an impedi-
ment, he should report to the Ordinary, even though the
party has lived less than six months in the other place,
and the Ordinary shall not give permission to marry until
the suspicion has been removed by the means mentioned
in the preceding paragraph (§2).
The question concerning a recently abandoned domi-
cile is touched at least indirectly. For alius locus, the
other place, plainly has reference to a change of domicile
or quasi-domicile.ia Therefore the Ordinary's decision
must be sought, and he should make inquiries through
the respective chanceries and from the pastors and also
the civil magistrates, if possible. Conjectures would be
probable indications, for instance, from travels or so-
journs, as also from the moral character of the party.
After he is morally certain the parties are free, the Ordi-
nary may either order the banns to be published or in-
struct the pastor to proceed with the marriage ceremony.
Hence it might happen that the banns would have to be
published in several places, if the bishop insisted.
How is pubertas to be understood? We believe it is
the age required for marriage according to can. 1067, u e.t
sixteen and fourteen years, respectively, because an in-
struction of the Holy Office XT mentions that age, although
i« Benedict XIV, "Paucij abhime,"
March 10, 1758. The Holy Office,
Aug. ;;■-. 1890. ordered that the
banna be published in the place of
birth, and in every place where the
parties lived for ten month* after
having reached the tge required for
marriage {Coll. P. P., n. 137$).
IT Sea the preceding note.
oogl
Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
60 MARRIAGE LAW
according to can. 88 the age would be fourteen and
twelve, respectively.
Concerning; soldiers we have not seen the faculties
granted to our Episcopus Castrensis. In the camps, as
a rule, the banns would have to be proclaimed by the
pastor in whose parish the camp or barracks are located
and by the pastor of the bride. In some countries 18 it
is the office of the military chaplain to proclaim the banns
of soldiers.
In addition to what we have said about the six months
in another place, an authentic interpretation has been
issued concerning a stay of that length of time in very
distant and remote parts (in longissimis et dissitis oris),
probably on account of soldiers and legionaries or colonial
troops.10 The answer is that in such cases the Ordinary
may content himself with the oath of the party and the
statement of two witnesses, or at least one, who has lived
with the party, though other proofs may also be demanded.
Can. 1024
time and place of publication
Publication.es fiant tribus continuis diebus dominicis
aliisque festis de praecepto in ecclesia inter Missarum
sollemnia, aut inter alia divina officia ad quae populus
frequens accedat.
The banns are to be proclaimed in church on three suc-
cessive Sundays or holydays of obligation during the
solemnity of the Mass or at other services which are fre-
quented by the people.
11 Thm in Austria; cfr. Aichner, 19 Pont. Com. Autk, Int., June
I. c. | 164. a-3. 1*18 (A. Ap. S., X. 345).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1025 61
Can. 1025
Potest loci Ordinarius pro suo territorio publicationi-
bus substitucrc publicam, ad valvas ecclesiac paroe-
cialis, aliusve ecclesiae, affixionem nominum contra-
hentium per spatium saltern octo dierum. ita tamen ut»
hoc spatio, duo dies festi de praecepto comprehen-
dantur.
The Ordinary may, however, substitute for said pub-
lication the public posting of the names of the contracting
parties at the doors of the parish church or some other
church ; the announcement must remain posted for eight
days, including two holydays of obligation.
(a) The Sundays and holydays of obligation are those
celebrated in foro externo by the hearing of Mass and
abstaining from servile labor.20 It matters nothing
whether these feast-days fall within the prohibited time,
for the publication of banns is not forbidden during that
period.
They are successive if one follows another without in-
terruption through another Sunday. If, for instance,
Christmas immediately follows Sunday, the publication
is to be made on these days as they follow each other.
But an interruption by ferial days is not only allowed,
but even desirable.21
In church (in ecclesia) says the text, following the
Tridentine Council, which intended first and above all the
parish church. Hence the publications may not be made
in a public or semi-public oratory. However, if a public
oratory serves as a temporary church for the people, the
-
20 In the U. S. the holydays of lion. Assumption (Aug. 15), and
obligation are: Imraac. Cone. B. M. All Saints.
V.; Christmas, New Year, Ascen- 21 S. C. C, June i?» 1780 (Rich-
tcr, Trid., p. Stag)] Gasparri, a. a 13.
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
6a MARRIAGE LAW
banns may be published there.1* Semi-public oratories
are not churchesi*9
The term missarum sollemnia is also taken from the
IK
Council of Trent and implies, not precisely a solemn High
Mass or Missa Cantata, but such a one as is generally
regarded as a conventual or parochial Mass. The law
now permits, as a rule and not only in exceptional cases,"
that the banns be published at services other than the
Mass, provided they be well attended by the people, e. g.,
at Vespers or evening service if there is a large gather-
ing on these occasions. This will be a welcome oppor-
D
tunity, especially if the last publication has been for-
gotten.
Can. 1025, permitting the posting of the banns at the
church-door, is new, although the practice had been pre-
viously permitted, not, however, as a substitute, but as an
additional mode of publication.18
Can. 1026
Publicationes ne fiant pro matrimoniis quae contra-
huntur cum dispensation ab impedimento disparitatis
cultus aut mixtae religionis, nisi loci Ordinarius pro
sua prudentia, remoto scandalo, eas pcrmittere oppor-
tunism duxerit, dummodo apostolica dispensatio prac-
cesserit et merit io omittatur religionis partis non catho-
licae.
The publication of the banns is to be omitted in mar-
riages contracted with a dispensation from either dis-
ss s. c C, 1901 (Anal. Eccl., as S. C. C, Aug. 19, 1703 (Zam-
1901. P- 58); this, however, ii ft boni, i. e., 1. r. Mat., | VI, n. 6).
particular decision not to be gen- 24 S. C. C, Oct. 25, 1586 (Rich-
ermlirefl; it was a case of church let, Trid., p. aa6. n. go),
repairs, sr. Coll. Lac. Cone, t. I, 198; y.
Scbcrcr, II, 147.
jle
I , Original from
UNIVERSITY OF WISCONSIN
N
■
CANON 1027 63
parity of cult or mixed religion, unless the Ordinary
discreetly permits it, provided no scandal is given, and
provided that the apostolic dispensation has been ob-
tained, and no allusion is made to the non-Catholic parry's
religion. Apostolic dispensation is here to be understood
of the dispensation from the impediment of worship or
mixed religion.
Scandal might arise among the people because of the
non-Catholic party's aversion to the Catholic religion, or
because of a Catholic's marrying a non-Catholic, espe-
cially in preponderantly Catholic parishes.
Can. 1027
obligation of tee faithful to divulge impediments
Omnes ndeles tenentur impedimenta, si qua norint,
parocho aut loci Ordinario, ante matrimonii cclebra-
tionem, re velar c.
All the faithful are bound in conscience to reveal,
either to the pastor or to the bishop, any impediment they
may have knowledge of, before the celebration of the
marriage.
As the parish priest could not be absolved from griev-
ous guilt were he to omit the publication of the banns,28
so the faithful are under a grave obligation to manifest
impediments known to them." This obligation is based,
if not on positive law," at least on the nature and scope
of the publication, and consequently on the public wel-
fare, and therefore obliges all Catholics. Consequently
w Benedict XIV, "Paueis abhinc," rt Rituolt Rom., tit. VII, c. \,
March 19, 1758: "Non idcirco d>- 38 Gasparri, n. aai. Wernz, IV,
nuntiotionum emission cm gnvi p. 204 (l ed.). assume! 1 positive
culpa emrtr*.** law besides the natural obligation.
i v,-i| » Original from
gle
UNIVERSITY OF WI5CGNSI
64 MARRIAGE LAW
all are included, none is excluded, as the Gloss says."
The only persons exempt from this general obligation are
those bound by professional or privileged secrecy, such
as confessors, physicians lawyers, counsellors, midwives.
If one knows of an impediment but under secret which
he has promised to keep, perhaps under oath, he would
nevertheless be bound to divulge it, unless by doing so
he would incur great danger to his soul or body, or give
scandal.80 But if the impediment is notorious, it may
and must be manifested by anyone who has knowledge of
it (except the confessor), even those who are bound by
secrecy.31 If the pastor has extra-sacramental knowl-
edge of what he believes to be an impediment, he must
stop the publication of the banns until he has convinced
himself that no impediment exists.
32
Can. 1028
dispensation from the banns
§ i. Loci Ordinarius proprius pro suo prude nti
iudicio potest ex legitima causa a publicationibus
etiam in aliena dioecesi faciendis dispensare.
§ 2. Si plures sint Ordinarii proprii, ille ius habet
dispensandi, in cuius dioecesi m ammonium celebratur;
quod si matrimonium extra proprias ineatur dioeceses,
quilibet Ordinarius proprius dispensare potest.
• i
a
The diocesan Ordinary may, according to his discre-
tion, dispense from the publication of the banns in his
own diocese or in a strange diocese, provided there is a
lawful reason. If the parties belong to different dio-
ao Ad c 3, X, IV, j, *. v. "volu- si Goaparri, n. a*6.
trit." 82 C. 17, X, IV, 1; v. Scherer, II,
so Lebmkuhl, Tktol. Moral., II, 11. 148.
«77-
>Ie
£ * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 1028 65
ceses the bishop in whose diocese the marriage is to be
celebrated, is entitled to dispense; if the marriage takes
place in neither of the two dioceses, either of the Or-
dinaries may dispense. The Council of Trent" left
it to the prudent judgment of the Ordinary to dispense,
if he sees fit, from some or all of the banns. By Ordi-
nary is understood the bishop, the vicar-general, or the
vicar-capitular, even without a special commission (ad-
ministrator and abbas nullius). But inferior clergymen,
such as deans, pastors,91 or assistants have no power to
grant a dispensation. However, in case a marriage would
surprise a pastor, as it were, and he is aware that it could
be maliciously hindered, and certain that no impediment
exists, he may omit the publication, vi declarationis, if no
time is left for consulting the bishop. This holds espe-
cially in danger of death.85
The Code also mentions causa legitime. Such a law-
ful reason, in general, is one which neutralizes or coun-
terbalances the law. When a law has a penal sanction
attached, this indicates that it is considered important
by the lawgiver. Still more is this the case with a lex
plus quant perfecta or one with a nullifying sanction.
Less serious is a law which has neither. To this last-
mentioned class belongs the omission or dispensation of
the banns, because neither is nullity of the marriage nor
any other penalty pronounced in the Code. The Code
simply states that there should be a legitimate reason.8*
Such a reason would be, for instance, a suspicion that
the marriage would be maliciously impeded if the banns
it Sew. 24. c. 1. de ref. mat. S. O., Jan. 1*. 1881 (Colt. P. P..
M S. C. C, Jan. 25, March 26, n. 1545).
1707 (Gallemart, Trid., I, »8a); the 85 Do Smct, I c.t ed. x, p. 4a.
pastor is not allowed to omit the *9 Stricter Benedict XIV, "Satit
publications, even if be deems them nobis," Nov. 17, 1741; 'Inevitable
entirely uielesi or thinks those made reason"; Id., Dc Syn, Dioec, XII,
by civil authority to be lumcient; 6, a.
>Ic
Original from
UNIVERSITY OF WISCONSIN
66 MARRIAGE LAW
were published ; " or if it appeared probable that the
other party would break the engagement because of a
protracted delay caused by the publication, or if disparity
of age or unequal social condition, or inequality of wealth
would make the parties a laughing-stock, or if the woman
would be enceinte.
The Ordinary who may dispense is he in whose dio-
cese both contracting parties have their domicile or quasi-
domicile, or, if they are vagi, the Ordinary in whose dio-
cese they happen to live at the time. Thus, if James be-
longs to the diocese of St. Joseph, and Gemma to the
diocese of Kansas City, the bishop of the latter diocese
dispenses if the marriage takes place in that diocese ; be-
cause ordinarily the bridegroom follows the bride in this
matter. Should James insist on being married in the dio-
cese of St. Joseph, the bishop of that diocese dispenses.
Should the parties choose a third diocese for their mar-
riage, for instance, the archdiocese of St Louis, either
the bishop of St. Joseph or the bishop of Kansas Gty
may dispense. No preference is here accorded to the
bride. But the pastors of both parties must be notified of
the granting of the dispensation ( from the proclamation
of the banns) by either bishop, and the episcopal chancery
from which the dispensation emanates should give notice
to the other, to prevent misgiving or suspicion on the part
of the pastor in the other diocese.
Finally it may not be useless to add that, though no
penalties are specified in the Code for the omission of the
banns, the Ordinary would not exceed his power if he
proceeded against pastors carelessly omitting the banns or
assisting at marriages for which the banns have not been
proclaimed. This right belongs to the bishop as guardian
of the law, as Fagnani says.88
IT Caap*rri, /. c, a. ijj ff. »8 Ad c. 35, X, v. 1, n. 78.
oogle
k ,1,, Original fro m
UNIVERSITY OF WISCONSIN
Q
..-.
CANON 1029 67
Can. 1029
Si alius parochus investigationem aut publications
pcrcgcrit, dc harum cxitu statim per authcnticum docu-
menturn certiorem reddat parochum, qui matrimonio
assistere debet
Should it happen that another pastor has attended to
the examination of the candidates or made the publica-
tions, he must as soon as possible authentically inform
the pastor who is to assist at the marriage of the results
of his inquiry.
Thus, Father Luke of a parish in the St. Joseph diocese
has made the publications or conducted the examination
of the contracting parties James and Gemma, or perhaps
only of the former, who is his parishioner, but the mar-
riage is to take place in Father John's parish in the dio-
cese of Kansas City (or in the same diocese of St. Joseph,
because the case remains the same). Father Luke dis-
covered no impediment, but is nevertheless bound to
notify Father John because the text simply says, de harum
exitu, i. e., he should advise him of the result obtained by
either the examination or the publication, no matter
whether that result was positive or negative, •*. e., no mat-
ter whether an impediment was discovered or not. Bene-
dict XIV says M that the pastor who assists at marriage
must ask whether the publications were duly made, and
hence the pastor who published the banns is bound to in-
form his colleague of the fact. Of course, this obligation
becomes more urgent if pastor Luke has discovered an
impediment.40 The Code imposes both investigation and
»» "Poucis abhinc," March 19, *oThis is the case mentioned in
1758 (Bull., Prati, TV, p. 494): "ad the instruction of S. C Sacr.. March
hoc, ut tuto interns* posrit marrt- 6, 1911, ad II {A, Ap. S., Ill, 10a).
HMt>>
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
68 MARRIAGE LAW
examination, and it may happen that one pastor performs
the examination, while another publishes the banns, and
a third assists at the marriage. In such a case the first
two have to inform the third of the result of the investi-
gation and publication before he may assist at the cere-
mony.
This information must be given by means of an authen-
tic document. Can. 470, § 4, prescribes that every pastor
should have a parish seal for official papers. The Rituale
Romanum'1 distinguishes two cases; (a) if both parishes
lie within the same diocese, Father Luke has simply to
send his information under the parish seal and with his
signature to Father John, who must file it and make a
note of it in the Matrimonial Book, as prescribed by said
Rituale Rotnanum. (b) If one of the contracting parties
belongs to another diocese, where the banns must also be
published, the mere statement of the pastor that the pub-
lications were made, is of no value, unless the paper con-
taining the statement is signed and sealed by his bishop
or vicar-general and recognized by the bishop or vicar-
general in whose diocese the marriage is to take place
and who must give his permission for the marriage.
Therefore pastor Luke of the St. Joseph diocese must
send the statement to his own bishop or vicar-general,
who shall forward it, signed and sealed, to the bishop or
vicar-gcncral of the Kansas City diocese, who in turn
shall transmit the paper together with his own permission
to Father John. If the bishop has a chancellor to whom
he wishes to entrust the matter, he may do so, because
what a bishop may do himself, he may entrust to another.
The formula is given in the Ritual and would read in
English as follows: " We hereby testify that the publi-
cations of the marriage between N. and N. have been
41 Tit X, c. 5 i.ed. Puatet, 1913, p. 330).
>Ie
j , Original fro m
UNIVERSITY OF WISCONSIN
a
N
CANON 1030 69
duly made by pastor N. of the parish N., to whom (he)
N. or (she) N. belongs, as may be ascertained from the
papers included. The first publication was made on
[date], the second on [date], the third on [date: day,
month, year] during the parochial Mass, and no canonical
impediment was found to be in the way. Wherefore we
grant you permission to assist at said marriage.
Signed :
Sealed: ... "
Can. 1030
§ 1. Per act is investigationibus et publicationibus,
parochus matrimonio nc assistat, antequam omnia
documenta necessaria receperit, ct praeterea, nisi ra-
tionabilis causa aliud postulet, tres dies decurrcrint ab
ultima publicatione.
§ 2. Si intra sex menses matrimonium contractum
non fuerit, pubiicationes repetantur, nisi aliud loci
Ordinario videatur.
To emphasize the preceding canon and make it more
effective, canon 1030 provides that after the examination
and the publication of the banns the pastor shall not as-
sist at the marriage until he has received all the necessary
papers, and until at least three days have passed after the
last call, unless a plausible reason should dictate other-
wise. Should a marriage be delayed for six months after
the banns have been published, the publication must be
repeated, unless the Ordinary decides otherwise.
The first clause of this canon is decidedly new and, as
we have said, devised for the purpose of making sure
that the candidates are free. The marriage should not
take place on Monday or Tuesday if the last announce-
ment was made on Sunday. Wednesday could be
/'• X(,.,L Original from
' 'gie UNIVERSITY OF WISCONSIN
7o MARRIAGE LAW
chosen, for Sunday may be reckoned as one of the three
days, since the publication was most probably made in the
forenoon. However, if the pastor has a plausible reason,
he may go ahead with the marriage sooner, nor need he
report the fact to the Ordinary. A plausible reason
would be, for instance, if one of the parties or the pastor
would have to leave before Wednesday, or if there would
be an anniversary of the parents' wedding, etc.
A report to the Ordinary must be made if the marriage
is delayed for six months after the last call. This is a
necessary precaution because it might happen that mean-
while an impediment is contracted or discovered. Hence
O'
the Rituale Rontanum 42 as well as an Instruction of the
Holy Office" demand repetition of the banns if two or
three months have elapsed since the last publication.
Our Code extends the time to six months, and says that
even then the Ordinary — not the pastor — may declare
a repetition unnecessary if he is morally certain that the
parties are free to contract Matrimony.
Can. 1031
ascertaining of the free status
§ i. Ex or to dubio de exsistentia alicuius impedi-
ment!:
i.° Parochus rem accuratius investiget, intcrro-
, gando sub iuramento duos saltern testes fide dignos,
a
dummodo ne agatur de impedimento ex cuius notitia
infamia partibus oriatur, et, si necesse fuerit, ipsas
quoque partes;
a.° Publicationes peraget vel perfkiat, si dubium
ortum sit ante inceptas vel expletas publicationes;
41 Tit VH, c 1, a 11 (td. cil.. « Aug. U, 1890, Ad VI {Coll. P.
p. JI2). P., u- 1740).
oogle
% ,1,., * Original from
UNIVERSITY OF WISCONSIN
N
CANON 1031 71
3.0 Matrimonio ne assistat, inconsulto Ordinario, si
dubium adhuc supercsse prudcntcr iudicaverit
§ a. Dctccto impedimenta certo :
i.° Si impedimentum sit occultum, parochus publi-
cationes peragat vel absolvat. et rem deferat. reticens
nomina, ad loci Ordinarium vel ad Sacram Poeniten-
tiariam ;
2.0 Si sit publicum et detegatur ante inceptas publi-
cationes, parochus ulterius ne procedat, donee impedi-
mentum removeatur, etsi dispensationem pro foro con-
scientiae tantum obtentam norit; si detegatur post
primam aut secundam publicationem, parochus publi-
cationes perficiat et rem ad Ordinarium deferat.
§ 3. Demum si nullum detectum fuerit impedimen-
tum, nee dubium nee certum, parochus, expletis publi-
cationibus, ad matrimonii celebrationem partes ad-
mittat.
Since the examination of the nupturients and the pub-
lication of the banns all tend to ascertain their freedom
from canonical impediments and since a reasonable doubt
may arise in the pastor's mind as to the existence of an
impediment, the Code lays down certain rules, which
should be applied to disperse such doubts. A reason-
able doubt is one which is not merely momentarily enter-
tained, but clings to the mind and makes the contrary
opinion appear less probable. Thus, if one of the par-
ties was married before, and his consort died in a dis-
tant country, from which no certain notice could be
gotten, there would be a reasonable doubt — a dubium
facti, not iuris. Doubts of the latter kind must be settled
according to the Code, and, if necessary, according to the
rules of interpretation and the opinion of the School.
Having premised this much, let us hear what the Code
I Original from
1 K H \SIL UNIVERSITY OF WISCONSIN
72 MARRIAGE LAW
says of a doubt arising as to the existence of an impedi-
ment.
(i) In such a case the pastor shall investigate more
thoroughly by querying at least two trustworthy witnesses
(provided the impediment is not defamatory) and also the
parties themselves, under oath, if he deems it necessary.
Concerning this examination several instructions have
emanated from the Holy Office,*4 which are summarized
in that " of Aug. 22, 1890, from which we learn that
(a) The witnesses to be cited may be either men or
women, preferably relatives of the contracting parties
and citizens." Non-Catholics may be admitted if they
are known to be trustworthy.
(b) Before being examined the witnesses must be ad-
monished concerning the sacredness of an oath. Then
they must be asked about their name, parents, age, pro-
fession and dwelling place, whether they are citizens and
how long they have lived in the place. Those who volun-
teer to testify are to be rejected. Those that are called
as witnesses must be questioned, by whom, where, when,
how, before whom, and how often they were called to
testify. They must also be asked whether they received
anything from anyone for acting as witnesses. Then
they must be questioned whether they know the contract-
ing parties, their character, social standing, and how long,
and in what place and on what occasion the parties be-
came known to them. If a witness says he has no
knowledge, he must be dismissed ; if he says he knows the
parties to the contemplated marriage, he should be asked
Q
44 Coll. P. !•'-. nn. 1 <;;.-', 1267, 1283, former must be taken as inhabitants,
1342, 1399, 1427. not citizens in the legal sense, whilst
■'•'■ Ibid., n. 1740. txteri are outsider! or foreigners
4« S. O., Dec. 9, 1874 (Coll. who do not lire in the parish or
cit., a. 1427, Vol. II, p. 87). Civts diocese.
1
are contrasted with exteri, but the
►ogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1031 73
whether they are citi2ens (i. e.t have a domicile some-
where) or foreigners. If they are foreigners, the pro-
ceedings are to be suspended, but if they are known to
the witnesses as citizens, the witnesses must be asked in
what parish the parties lived or are living, whether one
or both of them were ever married before, or made re-
ligious profession or received major orders, and if there
be any impediment to the Marriage. If the witnesses
answer all these questions negatively, they should be
interrogated as to the source of their knowledge and
whether there is any probability that either of the parties
is married or bound by an impediment If the answer
is affirmative, proceedings must be stopped, unless other
witnesses conclusively prove the contrary. If the answer
is negative, then the witnesses must again be asked con-
cerning the source of their knowledge (hearsay, eye-wit-
nesses, etc. ?) in order to establish their trustworthiness.
If they say that the contracting party was previously
married, but that his or her partner is dead, they must
be asked about the death and its circumstances and whence
they got the knowledge of the former marriage and sub-
sequent death of the other party. If they claim that the
death occurred in a hospital, or that they saw the party
buried from a certain church or in a certain cemetery,
authentic information must be obtained from the respec-
tive authorities (hospital, church, cemetery) before per-
mission for the wedding may be granted. If no docu-
ments can be obtained, other proofs are admissible. The
witness must also be asked whether the surviving party
married, or may have married, again. If the answer
to the last question is affirmative, permission for the wed-
ding is to be suspended until other witnesses testify con-
clusively that no marriage has taken place. If the an-
swer is negative, the witnesses should be asked concern-
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
74 MARRIAGE LAW
ing the sources of their knowledge, and after due de-
liberation the judge or pastor may decide whether or not
permission may be granted.
(c) The pastor is not allowed to assist at the marriage
of vagi, or vagabonds, unless he has obtained the neces-
sary documents from the Ordinaries (see can. 1032).
(d) If the contracting parties, or one of them, is in
prison, the testimony of the prison chaplain may be ad-
mitted as proof of his status ; and if this cannot be ob-
tained, the party, if trustworthy, may be admitted to the
supplementary oath.*7
This detailed investigation, is, however, to be omitted
if the impediment would entail defamation, or rather
infamy, upon the parties or one of them. The only de-
famatory impediments are rape, crime, and public dis-
honesty.*8
(e) Where one of these impediments is suspected, the
parties may be put under oath concerning their free state.
This oath, too, is called supplementary (iuramentum sup-
pletorium) because it is imposed to supply deficient proof.
Hence the pastor may ask the parties, or party, to swear
on the gospel, or by merely holding up three fingers and
calling God as a witness that they speak the truth.
(2) The pastor, says the canon, shall continue or com-
plete the publication of the banns if the doubt arose be-
fore or during the publications, because in that case it is
possible that the doubt may be cleared up or stronger
proofs be brought showing the existence of an impedi-
ment.
(3) If the doubt still remains after the publications, the
pastor shall not assist at the marriage before having con-
sulted the Ordinary. An instruction of the Holy Office,
4T S. O., Feb. 28, 1866 (Coll. cil.. n. 1*83).
41 Cf. canona 1074, 107$, 1078.
.'Ie
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
—
a
N
CANON 1031 75
Aug. 22, 1670, rules that the publications should not be
begun until the pastor has obtained a document from the
bishop or his' vicar-general, testifying to the free status
of the contracting parties. And although this instruc-
tion need no longer be followed in regard to time, con-
cerning the necessary paper it is certainly advisable to
follow it, since other instructions of the same Holy Office
have insisted upon this requirement."
§ 2 says that if the existence of an impediment is cer-
tainly established, then, (1), if it is secret, the pastor
shall continue or complete the publication of the banns
and refer the matter either to the Ordinary or to the S.
Poenitentiaria, without naming the parties; (2) If the
impediment is public and is (a) discovered before the
publications are begun, the pastor shall not proceed fur-
ther until the impediment is removed, even though he
may know of a dispensation granted for the court of con-
science; (b) if a public impediment is discovered after
the first or second publication, the pastor shall finish the
publications and then report to the bishop.
The difference between a secret and public impediment
is explained in can. 1037. From secret impediments the
Ordinary may have power to dispense, and hence they
should be brought before the episcopal court. If the
Ordinary cannot dispense, the matter must be referred to
the Sacra Poenitentiaria. What is necessary to know
concerning that power will be explained in the chapter
on dispensations.
Reticens nomina does not mean that no names should
be given, but that assumed or fictitious names may be
made use of. If the impediment is public, the proper
49 The consequence is, as laid in- like the pastor, i.*., according to the
•truction rules (Coll. P. P., a. 19a), rule* laid down abore.
that th« Ordinary hat to proceed
*Ie
v ,1,., Original from
UNIVERSITY OF WISCONSIN
■
76 MARRIAGE LAW
names are to be stated in the report made to the Ordinary.
The Code further says that any knowledge a pastor
may have of a dispensation obtained solely for the court
of conscience is tantamount to no knowledge. He may
know of the dispensation through the confessional or
from some other source ; but as a dispensation granted
for the internal forum only does not hold for the public
forum, the pastor must act as if he had no knowledge
at all.
§ 3. If no impediment was discovered, either doubtful
or certain, the pastor shall, after all the banns have been
published, admit the parties to the celebration of mar-
riage."
Can. 1032
Matrimonio vagorum de quibus in can. 91, parochus,
excepto casu necessitatis, nunquam assistat, nisi, re ad
loci Ordinarium vel ad sacerdotem ab eo delegatum
delata, licentiam assistendi obtinuerit.
No pastor shall, except in case of necessity, assist at a
marriage of vagi, unless he has previously referred the
case to the Ordinary of the diocese, or to a priest dele-
gated by the latter, and obtained his permission.
Who are vagi is explained in can. 91. They arc such
as have neither a domicile nor a quasi-domicile. and, with
regard to marriage, have not stayed for thirty days in
any one place, i.e., parish or diocese.51 Hence one who
has roamed about a diocese for thirty days without set-
tling in any parish thereof, cannot strictly be called vagus,
■0 Trid., Bess. 24, c. i, it ref. omnes el toll, qui nullibi habent
.; Rituale Rom., tit. VII, c. 1, c. parochum vel ordinarium proprium
2, n. 1 (ed. Pustet, 1913. p. 211 f.). ratione domicilii vel memtruae carn-
al S. C. Sect., March 12, 1910, morationis."
ad V: "Nomine vtgorum veniunt
§le
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 1032 77
and the present canon does not apply to him. Here we
perceive the benefit of a " diocesan domicile."
If he is dealing with a real vagabond, and the case is
one of necessity, the pastor need not report to the Or-
dinary, but, scrvatis de iure servandis, may proceed to the
marriage. Whether the case is one of necessity is left
to the pastor to judge.82 A soldier who has to leave im-
mediately, as also a pregnant woman, might claim ne-
cessity. If the case is not one of necessity,53 it must be
reported to the bishop. What the latter must do is stated
in the instruction of the Holy Office, Aug. 22, 1890, which
demands that the parties produce authentic documents
from the Ordinaries in whose diocese they have lived for
less than a year. If none such can be had, the parties
may be admitted to the supplementary oath concerning the
diocese from which the required documents cannot be
obtained. At any rate, at least two witnesses must be
produced to testify to the free state of the contracting
parties during their vagabondage. In addition the Or-
dinary may, if he deems it necessary, demand a supple-
mentary oath from the groom.
The "priest delegated by the bishop " may be one dele-
gated for a particular case, or for all matrimonial cases
(the chancellor or rural dean). If the custom prevails in
a diocese that the procedure concerning the free state of
nupturients is reserved to the episcopal court, this cus-
tom may be observed."
Can. 1033
IK
Ne omittat parochus, secundum diversam perso-
narum conditioners, sponsos docere sanctitatem sacra-
6J Werai, /. c, XV, Vol. I, p. 294. »* S. C. C, Feb. I, 1908 ad It.
5S Coll. P. F., 11. 1740 ad 8.
* I InTMlIp Original from
.OOglL UNIVERSITY OF WISCONSIN
80 'MARRIAGE LAW
j
are to be thus admonished, not those who are of age.*8
If the parents know nothing of the intended marriage
it is the pastor's duty to inform them, whether the con-
tracting parties like it or not. Of course, this rule ap-
plies only when conditions are normal. In many cases it
will be next to impossible to notify the parents, and then "
the pastor is excused from that duty. He is also excused,
in the opinion of some canonists, if the parents live very
far from the place where the marriage takes place.
If the parents know of the marriage, but oppose it with
good reason, the pastor must consult the bishop. Before
doing so, however, he should dispassionately hear the ob-
jections, in order to communicate them to the Ordinary.
A reasonable objection would be, for instance, that the
family would suffer disgrace or notable material loss, or
that the marriage would cause scandal or dissension, or
that one of the parties belongs to a family of low or base
degree (jail-bird, irreformable drunkard, gambler), or to
a different religion, or is in precarious health. Social dis-
tinctions should not weigh much in a democratic state,
nor should inequality of wealth, all other things being
equal, be a decisive factor.
Unreasonable objections are those inspired by personal
dislike or political differences, or based on idle gossip or
mere sentiment,
«2 Can. 88, I i. 61 Cfr. De Smet, /. c, p. 333 f-
jle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
"-.
CHAPTER II
IMPEDIMENTS IN GENERAL
The publication of the banns is intended to disclose im-
pediments, if there be any, and hence the Code logically
proceeds to the consideration of the obstacles which may
either impede or invalidate a prospective marriage.
The technical term impeditnentum was coined by the
Glossators, and the distinction between impedientia and
dirimentia occurs in the Sumnta of Magister Rolandus,
who was followed by Bernardus Papiensis.1 The num-
ber of the impediments was not fixed. The gloss ad pr.
C. 2jt q. If mentions sixteen, Tancred * prefers the mystic
number fourteen (7-f-7), twelve "diriment" and two
"impeding" impediments. Some of the impediments
mentioned by these early writers are now grouped under
the heading of defective consent. Thus compulsion, fear,
condition, error really affect the consent. But there are
other obstacles which natural, or divine, or ecclesiastical
law has set up in a more particular manner. Berardi *
has laid down a good rule for distinguishing between
invalidating and prohibitive impediments. He says :
Those marriages which the natural or positive-divine
law reprobates in a more especial manner, are not only
illicit, but invalid ; marriages which the ecclesiastical law
X Cfr. Freisen, /. c, p. 22a f. asunder. But the term bat the
J Vu •;<•>:,: d* Spont. *t Mat., ed- force of custom and is now isnc-
Wunderlkb, p. 17. It may be per- tioned by the Code.
mined to say that the term dirimtnt a Comm<nt. in Jug Eccl. Univtr'
ia not well chosen. What haa not sum, 1. Ill, dissert. IV, c. 1 (ed.
yet been joined, cannot be rent Venet^ 1778, Vol. II, p. 7;).
8l
>gk
Original fro ni
UNIVERSITY OF WISCONSIN
82 MARRIAGE LAW
intends to invalidate must be expressly declared null and
void, otherwise they are only illicit. This rule is clearly
discernible in our Code.
general principle
Can. 1035
Omnes possunt matrimonium contrahere, qui iure
non prohibentur.
All can contract marriage who are not forbidden to do
so by law.
Marriage being based upon the natural distinction of
sex, and intended by the Creator for the preservation
and propagation of the human race as well as for the
increase of His true worshippers, is permitted to all.
This does not mean that all men must marry. There is
no general command that compels each and every indi-
vidual to contract marriage. Nature itself prevents some
from getting married ; others are called by God to a state
of life which compels them to devote themselves to His
exclusive service. This is the doctrine preached by the
Apostle of the Gentiles,* and it has been followed by
the Church and dogmatically denned at Trent.3 The
Tridentine Council condemns those " who say that the
conjugal state is to be preferred to the state of virginity
or celibacy." Therefore the Code says, " All can con-
tract marriage."
It adds: "who are not forbidden to do so by law."
The forbidding law may be either the natural or a divine
or human law. The natural law, as stated above, pro-
hibits polygamy, whence the impediment of lujaiv.cn or
-
<
4 1 Cor. 7, 2$ f-i 38. 40; cfr. Matth. 19, 11 f.
b Scat. 24, can. 10, dc soct. mat.
a
jle
% .,1,., Original from
UNIVERSITY OF WISCONSIN
—
a
N
■
9
CANON 1036 83
existing marriage bond. The natural law also bars from
marriage those who are absolutely impotent, i. e., unable
to engender children. Hither may also be referred the
impediment of age, as far as it is connected with impo-
tence. Blood-relationship in the degrees of the direct
line, and in the first degree of the collateral line, are like-
wise generally referred to the natural and divine law.
But we cannot stretch that law any further. Human or
ecclesiastical law has set up other restrictions, all intended
to safeguard marriage, which is preeminently a public
institution.
prohibitive and diriment impediments
Can. 1036
§ 1. Imped inien turn impediens continet gravem pro-
h ibi ticnem contrahendi matrimonium ; quod tamen ir-
ritum non redditur si, non obstante impedimento, con-
trahatur.
§ 2. Impedimentum dirimens et graviter prohibet
matrimonium contrahendum, et impedit quominus va-
lide contrahatur.
§ 3. Quanquam impedimentum ex una tantum parte
se habet, matrimonium tamen reddit aut illicitum aut
invalidum.
§ 1. A prohibitive impediment implies a grave prohi-
bition of contracting marriage, but does not render it
invalid if contracted.
§ 2. A diriment impediment both gravely forbids mar-
riage and prevents it from being contracted validly.
§ 3. Even when the impediment exists only on one
side, it renders marriage illicit or invalid.
oogle
v ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
84 MARRIAGE LAW
public and occult impediments
Can. 1037
Publicum censetur impedimentum quod probari in
fpro externa potest; sccus est occultum.
An impediment is considered public when it can be
proved in the external forum ; otherwise it is occult.
These terms are plain; the difference between pro-
hibitive and diriment impediments lies in their effect, that
between public and occult, in their liability to be proved.
An occult impediment is supposed to be and remain un-
known, except perhaps to one or two trustworthy per-
sons,8 but it becomes public if the parties concerned re-
veal or prove its existence. Therefore the Code naturally
looks at the juridical side of the knowledge, for one may
be " cocksure " about an impediment and yet at the same
time unable to prove its existence. If two trustworthy
persons, besides the party or parties concerned, know
of the impediment, and have means to prove it, it can no
longer be styled occult.7 One authentic document (e. g.,
a baptismal record) is sufficient to prove the existence of
an impediment.
Note § 3, can. 1036, which clearly indicates the indi-
vidual character of the marital union. " Matrimonium
claudicare nequit," and hence if one party is affected by
an impediment, the other party, in virtue of the bilateral
contract, is also affected.* Therefore, if James suffers
from an impediment, his bride Gemma is also affected.
Disparity of cult, age, ligamen, etc., affect not only the
aGaaparri, De Mat., n. 259 («*• 8 S. O., Sept. 16, 1824 ad * (Coll.
3). P. F., n. 784).
T S. C C, July 9> Sept 10,
1881 (A. S. S.t U 14, p. 465).
►ogle
f^ ^ s ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1038 85
party directly concerned, but indirectly also the other.
But here a distinction must be made. If James becomes
a Catholic, the impediment ceases and he may freely
marry his Catholic friend. Gemma. Again, if Gemma
and James are second cousins, they suffer equally from
the impediment. But if James wants to marry Lola, who
is not related to him, the impediment ceases for James.
Therefore a distinction must be made between absolute
and relative impediments. The former affects the per-
son completely and with respect to every other person,
for instance, ligamen, as long as it lasts, and absolute
impotency; whereas the latter concerns only a certain
person or class of persons. Of little practical value is
the distinction between impediments juris publici and
juris privati, except in so far as the right of accusing the
marriage is concerned,* and in this sense it coincides with
the distinction between public and occult impediments.
THE SUPREME ECCLESIASTICAL AUTHORITY
E
Can. 1038
§ 1. Supremae tantum auctoritatis ecclesiasticae est
authentice declarare quandonam ius divinum matri-
monium impediat vel dirimat.
§ 2. Eidem supremae auctoritati privative ius est alia
impedimenta matrimonium impedientia vel dirimentia
pro baptizatis constituendi per modum legis sive uni-
versalis sivc particularia.
§ I. It belongs to the supreme authority of the Church
to declare authentically when the divine law forbids or
invalidates a marriage.
§ 2. To the same supreme authority belongs the ex-
©Thu« Wernz, IV, ed. 1, p. 345; De Smet, /. ft, p. aSB.
G 1 Original from
OU^IL UNIVERSITY 0FWI5C0NSIN
86 MARRIAGE LAW
elusive right to establish, for persons baptized, other
impediments, prohibitive or invalidating, by way of uni-
versal or particular law.
The first section is based upon the dogmatic decree of
Trent which condemns the assertion that only those de-
grees of consanguinity and affinity which are mentioned
in Leviticus (18, 6ff.) constitute diriment impediments
and that the Church has no power to set up others.10
Our canon also excludes the usurped power of the civil
authority which undertakes, of its own accord, to enact
laws concerning the dissolubility of marriage. Such an
attempt is called violence to the divine and to the natural
law, or rather a corruption of the law.11 But the Church
claims exclusive authority only for declaring whether the
divine law forbids or invalidates a marriage. A palpable
example is the impediment of disparity of cult vs. mixed
marriage, which both certainly rest on divine law, and
that of simple and solemn vows.
§ 2 is also based on the dogmatic canons of the Council
of Trent,12 as emphasized anew against the Rationalists
in the Syllabus of Pius IX, which was aimed at the so-
called Regalists, who pretended that the power of estab-
lishing impediments was given to the Church by the civil
authority and that the latter ought to do away with
them. The power of establishing impediments belongs
inherently to the Church and is not derived from the
State, as the dogmatical canons of the same council
show.13 The Church claims the right to establish impedi-
ments for baptised persons.14 This right may be asserted
10 Sets. 24, can. 3, Ds Sacr. is Propp. 68-70.
Mai. 14 There ■* always the same drf-
11 S. 0-, July 6, 1817; Sept. 3, ficulty concerning the term bap-
1772 {Coll., nil. 725, 492). tizcJ. IS baptised mesas what the
11 Sett. :-i, can. .3.4.9. D* expression properly conveys, then
Sacr, Mat. all, whether Catholka or non-
"-.
>Ic
£ " ^ ^ -Art Original from
UNIVERSITY OF WISCONSIN
CANON 1039 87
either by way of a universal or a particular law. A uni-
versal law is one that affects every province and all per-
sons without exception; a particular law is one like the
" Tametsi" which was conditioned upon local promulga-
tion. Particular laws were the declaration of Benedict
XIV concerning mixed marriages in the Netherlands and
the " Provida " of Pius X for Germany ( 1906) .
But the Church does not deny the power of the State
over marriages of non-baptized persons, as is evident
from a decision of the S. P. F„ of June 26, 1820.15
However, civil impediments obliging baptized persons,
especially that of lack of consent on the part of the par-
ents, are discountenanced by the Church.10
Q
THE POWER OF ORDINARIES
Can. 1039
§ 1. Ordinarii locorum omnibus in suo tcrritorio actu
commorantibus et suis subditis etiam extra fines sui
territorii vetare possunt matrimonia in casu peculiar!,
sed ad tempus tantum, iusta de causa eaque perdu-
rante.
§ a. Vetito clausulam irritantem una Sedes Apo-
stolica addere potest.
The " vetitum Ecclesiae" was formerly one of the
prohibitive impediments, but has ceased to be such, at
least ipso iure. Yet the Code vindicates to the local Ordi-
naries the right of forbidding a particular marriage or a
Catholics, are comprised by the observance of which rendered mar*
term, provided the/ are validly riage invalid; the S. Congregation
baptized. An authentic interpreta- declared them invalid,
tion would not be superfluous. i« S. O., Nov. 17, 1835; S. C P.
llColl P.P., n. 744. In China F., April I, 1816 {Coil., on. 84a,
certain ceremonies were prescribed 711).
either by law or custom, the non-
IT
i C* ^,miI„ Original from
edbyC jle
UNIVERSITY OF WI5CGNSI
MARRIAGE LAW
marriage in a particular case. Therefore their power
extends only to individual cases and, besides, cannot be
exercised except for a just cause. Such a cause would
exist, e. g., if the Ordinary would have reason to doubt
the free status of one or both of the contracting parties,
either because no papers were received or because papers
had been refused by another bishop." Another just
cause would be a reasonable doubt as to the existence of
an impediment,18 or a strong presentiment of future
trouble.1' However, the bishop may not forbid a mar-
riage indefinitely, but only for a time, as long as the
reason lasts.10 Therefore a certain term should be
set, say two or three months, which, in ordinary times,
would enable the parties to obtain the necessary papers
and remove existing difficulties. Lastly, the Ordinary's
power extends only to those who actually live within his
diocese or are his subjects, even if they dwell outside the
diocese. Therefore all Catholics who live in a diocese,
no matter for how short a time, must abide by the order
of the bishop if he forbids their attempted marriage.
The same rule applies to subjects who have their domicile
or quasi-domicile in the diocese, but momentarily live
elsewhere, though in such cases it will be proper to notify
the Ordinary of the other diocese.
As to the effect of an episcopal prohibition, it may de-
lay a marriage, but cannot invalidate it, and hence a mar-
riage contracted against the bishop's injunction is valid
if the prescribed form was observed.
A bishop would not exceed his power if he proceeded
'■-.
ITS. C. C, Feb. 20, 1723 (Rich* lolf the reason for which the
ter, Trii.. p. 369, n. 11a). prohibition wu made, censes, the
llS. C. C, March 15, 1727 prohibition also ceasei ipso facto.
(.ibid,, n. .13). and the pastor may lawfully assist
i»Cfr. A. S. S., t 8, p. 2it ff. and the partiea lawfully contract
>Ie
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1039 89
a
against offending parties and the assisting priest and wit-
nesses with ecclesiastical punishments.21
The text ascribes this power to the Ordinary, i. e.f to
bishops and all who go by the name of Ordinary, there-
fore also vicars-general. Pastors and their assistants, be-
ing destitute of jurisdiction in foro externo, cannot for-
bid a marriage, though a pastor may stay a marriage for
a while until the case is settled by the ecclesiastical court,
to which he would have to report if the contracting
parties were vagi, or if there were doubts as to the ex-
istence of an impediment, or if the parents of a minor
would oppose the marriage," or if family troubles could
be foreseen.
If the pastor stayed a marriage and refused permission
or delegation to his curate to assist at it, the marriage
would be invalid, not because of the pastor's prohibition,
but on account of lack of permission or delegation. But
if the pastor would simply forbid his curate to assist,
without expressly restricting the general delegation pre-
viously given to him, (can. 1096), the assistant could
validly assist at that marriage.23
§ 2 mentions the case where the Apostolic See forbids a
marriage. Only an invalidating clause explicitly added
to the prohibition, says Benedict XIV, would render in-
valid a marriage attempted against the Pope's prohibition.
If the decretutn irritans is not expressed in the prohibi-
tion, the marriage would be merely illicit. Examples of
such prohibition are exceedingly rare. A famous one is
that by which Stephan III endeavored to deter Charle-
magne from marrying the daughter of Desiderius, King
a
llS. C. C, Florentina, Feb. 17. cfr. can. ioji, SB 1, 3; 1032. i<>34-
1639; Feije, L c, n. 549. P- 4*4- 2a S. C. C, April aa, 1719 (Rich-
22 S. C. C, March 15, 1737 ter, /. c, n. no £.).
(Richter, Trid., p. 369, n. 113);
oogle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
90 MARRIAGE LAW
of the Lombards, and the son of Desiderius from marry-
ing Charlemagne's sister, Gisela." That the Pope can
make such an invalidating prohibition follows from his
power of establishing ecclesiastical impediments."
A kind of prohibition is sometimes made by the S.
Congregations, especially if a tnatrimonium ratum tantum
is to be dissolved, in the following form: " Vetito ntuli-
eri transitu ad alias nuptias inconsulta S. Congregatione,
idqtte tnulieri notiHcetur ante novum propositionem."
This clause is used in cases of impotence or inviolate
virginity, when there is doubt as to the absolute proof of
said physiological condition."* But this clause does not
savor of an invalidating decree.
A prohibition, papal or episcopal, ceases by revocation,
or lapse of time, or cessation of the cause for which it
was made.11
the power of establishing impediments
Can. 1040
Praeter Romanum Pontificem, nemo potest impedi-
menta iuris ecclesiastici sive impedientia sive diri-
mentia abrogare, aut illis derogare; item nee in eis-
dem dispensare, nisi iurc communi vel speciali in-
en
dulto a Sede Apostolica haec potestas concessa fuerit.
What we have said above concerning ecclesiastical
legislation will suffice to explain this canon. It is now,
M Migne 89. 125J **.; dcipite all as Bened. XIV, Dt Sy*. Diotc,
imprecations the Pope does not em- XII, 3, 3.
ploy the clausula irritant, but con- 20 S. C G, Dec. 18, 1869; Dec.
aider* the planned marriage in- 15, 1877 (.■•'. S. S., V, 553; XI,
valid because of previous betrothal; 141).
hence Wernz (t c, IV, Vol, II, p. " Weru, J. C, IV, Vol. n, n.
462) it wrong if he aava, tub 604. p. 467.
poena nullitatij.
oogle
k %\^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1040
91
and has been since the Council of Trent,18 the teaching of
the Church that the Roman Pontiff alone can either
totally or partially abolish impediments established by ec-
clesiastical law, whether prohibitive or diriment. Note
the term ecelesiastici iuris, for impediments of natural or
divine law, such as those of ligatnen or impotency, or
blood-relationship of the first degree, can never be
abolished or modified by the Pope. But ecclesiastical
impediments were established by the Church and can be
either totally or partially abrogated by her. No ex-
amples of complete abolition of diriment impediments
are discoverable in the Code, if we except betrothal with
regard to public honesty. But several impedient impedi-
ments have been abolished. Thus the ecclesiae vetitum,
the tempus feriatum, the sponsalia, the banns, have all
been done away with.28 A partial abrogation of diriment
impediments has been made concerning the degrees of kin-
ship, spiritual relationship, affinity and public honesty.80
§ 2 says that the Sovereign Pontiff alone can dispense
from matrimonial impediments, and no one else, unless
the power has been granted to him by the common law
or by special papal indult This, too, is now the estab-
lished teaching and practice of the Church, as may be
seen from the condemnation of contrary tenets." Bene-
dict XIV was not a little surprised to hear that some
is Seas. 24, can. 3, de tacr. mat,;
e. a, de ref. mat.
so They were contained in the fol-
lowing: verse:
Eeclesiat vetitum, tempus, sponsa-
lia votum,
Mix toque rcligic, si procUmatio
desit,
so The diriment impediment* are
contained in this verse:
Error, conditio, votum cognatio,
crimen,
Cuitus disfaritas, vis, ordo, liga-
tr.sr., honestas.
Atlas, affinis, si claniestinus et
impos.
Si mulier sit rapta, loco nee red-
dita tuto,
Haec socianda vetant connubia,
facta retractant.
■I Pius VI, " Auctorem Udei,"
Aug. a8, i794i P'OP- 59 f-I Syllabua
of Pius IX, prop. 68.
oogle
Original from
UNIVERSITY OF WISCONSIN
92 MARRIAGE LAW
Polish prelates held a different opinion, especially with
regard to the impediments of disparity of cult and mixed
religion.81
What the general or common law grants to Ordinaries
is contained in our Code, and they are allowed to go be-
yond the powers therein conferred only if a special papal
indult gives them additional faculties. Such an addi-
tional faculty is that of April 25, 1918, and August 2,
1918, of which more will be said under can. 1048.
CUSTOM POWERLESS TO ESTABLISH IMPEDIMENTS
■a
Can. 1041
Consuetudo novum impedimentum inducens aut
impediments exsistentibus contraria reprobatur.
Customs tending to introduce a new impediment or to
abrogate those in force, are hereby reprobated.
There was a custom acknowledged concerning the
" Tatnetsi" in so far as it was taken or presumed as a
proof that the promulgation of said decree was duly made
in a parish. This custom is quite different from one
tending to introduce a new impediment, as that which
crept into Servia, of regarding the act of being a witness
to a marriage as an impediment to marriage. Benedict
XIV strictly forbade any such custom.33
What the term reprobated means has been explained in
the first Volume (pp. 112 ff.) of this Commentary. It is
the intention of canon 1041 to preclude the rise of such
customs, as well as to state that they cannot be called rea-
sonable.
82 "Magna* Nobit," Juo« 99, atitution, waa that of considering
1748. the act of ahearint; the locka of a
ft* "Inter omnigenoj," Feb. 2, boy for the firat time ai an Jm-
1744, I '7- An even sillier cus- pediment to marriage,
torn, mentioned in the same Con-
►ogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1042 93
CLASSIFICATION OF IMPEDIMENTS
?
Can. 1042
§ 1. Impedimenta alia sunt gradus minoris, alia
maioris.
-
§2. Impedimenta gradus minoris sunt:
i-° Consanguinitas in tertio gradu lineae colla-
t e ra 1 i s ;
2.0 Affinitas in secundo gradu lineae collateralis ;
3. Publica honestas in secundo gradu;
4.0 Cognatio spirituals ;
5.0 Crimen ex adulterio cum promissione vel atten-
tatione matrimonii etiam per civilem tantum actum.
§ 3. Impedimenta maioris gradus alia sunt omnia.
§ 1. Impediments are divided into higher and lower.
§ 2. Impediments of a lower degree are the following:
i.° Consanguinity in the third degree of the collateral
line;
2.0 Affinity in the second degree of the collateral line;
3.0 Public decency in the second degree;
4.0 Spiritual relationship;
5.° The impediment of crime arising from adultery
with a promise of, or attempt at, marriage, even by a
merely civil contract.
§ 3. All other impediments are of the higher degree.
This division was introduced for convenience sake by
the officials of the Roman Curia, because dispensations
from minor impediments were issued by the subsecretary
of dispensations attached to the S. C. of Sacraments, or
his substitute, whereas dispensations from major impedi-
ments were granted by the Cardinal Prefect or the Sec-
retary of the Congregation.14
U Cfr. A. Ap. S., X, 90 f.
Go >gle
,.] ^ Original fro rn
UNIVERSITY OF WISCONSIN
94
MARRIAGE LAW
It may here be noted that the Code does not treat
as impediments in the proper sense error, servile con-
dition, condition proper, compulsion and fear, but deals
with them under ch. V, on Matrimonial Consent, as af-
fecting the substantial form of marriage.
We will now exhibit in parallel columns the impedi-
ments of the major and minor degrees as enumerated in
the present chapter.
LIST OF IMPEDIMENTS
3-
4-
Major
1. Age.
2. Impotence (iuris nat),
Ligomen (iuris nat.).
Disparity of Cult and Mixed
Religion.
5. Sacred Orders,
6. Solemn Profession.
7. Rape.
8. Crime, with adultery and
uno machinante, or without
adultery, but utroque may-
chinante.
9. Consanguinity, whole direct
line and first and second
degree of the collateral line
(iuris nat. 1° deg. lin. rec-
tae).
10. Affinity in the whole direct
line and first degree of col-
lateral line.
11. Public honesty in the first
degree.
12. Legal Adoption.
Minor
1. Crime with adultery and
promise of marriage.
2. Consanguinity in the third
degree of the collateral line.
3. A/Unity in the second degree
of the collateral line.
4. Public honesty in the second
degree.
5. Spiritual relationship.
We put the impediment of mixed religion, though only
prohibitive, among the major impediments, as the Code
seems to justify this classification (see can. 1071).
As to the impedient impediments, a classification of them
is superfluous.
>ogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1042 95
DISPENSATIONS
In Vol. I of this Commentary (pp. 173 ff.) the general
principles governing dispensations have been outlined. A
dispensation is a relaxation of the law in particular or
individual cases. The sovereign lawgiver, and he alone,
can by his inherent power dispense from laws subject to
his domain. Hence the general principle asserted in can.
1040 concerning matrimonial dispensations is but a logi-
cal application of the general rule to a special class of
dispensations. The same sovereign power may commu-
nicate the right of granting dispensations to inferiors,
and the communication may be made by law or by per-
sonal commission. The latter may be given either to
single individuals, for instance, the bishop, or a con-
fessor or pastor chosen for this single instance, or by a
general commission to Ordinaries as such, at least for
a certain time and for certain countries. The powers
thus conferred were formerly contained in fixed formu-
laries, which now, however, are obsolete, though the S. C.
Consistorialis, in virtue of the decree " Proxinxa sacra"
April 25, 1918, has again granted to the Ordinaries of the
U. S. and other far-distant countries faculties concerning
matrimonial dispensations which we shall discuss under
can. 1048. These faculties we may call delegated, as
they are delegated by the Supreme Pontiff. Besides,
the lawgiver as such, or the law itself, has granted to Or-
dinaries, pastors, and other priests powers with regard
to matrimonial dispensations, which consequently be-
long, as the decree quoted above intimates, to their or-
dinary jurisdiction, and may therefore be delegated to
others. Of these the Code says:
jle
Original from
UNIVERSITY OF WI5C0NSI
■
96 MARRIAGE LAW
powers of dispensing granted to ordinaries in
cases of danger of death
Can. 1043
Urgente mortis periculo, locorum Ordinarii, ad con-
Bulendum conscientiae et, si casus ferat, legitimationi
prolis, possunt turn super forma in matrimonii cele-
bratione servanda, turn super omnibus et singulis
impedimentis iuris ecclesiastic:, sivc publicis sive occul-
lis, etiam multiplicibus, exccptis impedimentis pro-
venientibus ex sacro presbyteratus ordine et ex affini-
tate in linea recta, consummato matrimonio, dispensare
proprios subditos ubique commorantes et omnes in
proprio territorio actu degentes, remoto scandalo, et,
si dispensatio concedatur super cultus disparitate aut
mixta religione, praestitis consuetis cautionibus.
E
In danger of death, Ordinaries may for the relief of
conscience and, if the case demands, for the legitima-
tion of children, dispense their own subjects, wherever
they may be, and all other persons actually residing in
their territory, from the form of marriage, and from all
impediments of the ecclesiastical law, diriment and impe-
dient, public and occult, simple and multiplex, including
clandestinity, but not the impediment of priestly orders
and affinity in the direct line, arising from consummated
marriage.
In granting these dispensations all danger of scandal
should be removed, and in the case of disparity of wor-
ship anc! mixed religion, the usual conditions should be
imposed."
This is, as noted above, no longer 30 a merely personal
W Translation adapted from Irish ass. O-, Feb. ao, i588; April aa,
Eccl. Record, 1918, VoL XI, p. 1890 (Coll. P. F., nn. 1685, 1738).
iai f. In the Utter of these decisioni the
p
oogle
, ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1043 97
commission or faculty in the strict sense, but a com-
munication by law. For the rest a delegation is hardly
necessary, on account of can. 1044.
Our canon then states under what circumstances, when,
by whom, in whose behalf, from which impediment, and
under which clauses a dispensation may be granted.
(1) Circumstances: '
(a) Danger of death is present when a physician de-
clares that it is, and the Ordinary may rely on the physi-
cian's verdict. Besides, a priest with some practice learns
to perceive the danger. Lastly, if the patient himself
believes there is danger, he must be believed.
(b) For the relief of conscience (ad consulendum con-
scientiae) is a reminiscence of the " Ne tetnere" art. VII,
which has a similar phrase concerning the danger of
death, only that it employs the term imminente, which is
about the same as urgente. A conscience needs relief
when it is troubled or oppressed by sadness, as is apt to
be the case in an illicit marital relation. The term
is quite general and does not exclude other causes.87
The question may arise : Does ad consulendum conscien-
ce refer only to persons in danger of death or may it
be appjied to others who are in no such danger. Our
answer is: As marriage is an individual contract, and
the troubled conscience of the party that is not sick may
at least indirectly affect the party who is, it would seem
that the legislator means also to grant a dispensation
in that case. This interpretation is corroborated by
a declaration of the Holy Office. A dispute had arisen
about the words, " aegrotos in gravissimo mortis periculo
constitutos." Some maintained that the faculty (as
formerly understood) could be applied only in case the
3
faculty was explained " vtluti orii- 17 Vermeeracb, Dt Sponsalibut
nana." ci Mat. (Se temtrt), p. 39.
ogle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
98 MARRIAGE LAW
impediment affected the sick person, but not if the sick
person was free (solutus) and the impediment affected
only the person who was well. Others asserted that
the faculty could be applied also in case the sick person
was free from impediments and only the other party was
involved. The Holy Office decided that the dispensa-
tion may be applied in both cases.88 This answer was
the only logical and consistent one that could be given
in view of the reasons stated above.
(c) Another and doubtless a grave circumstance is that
of legitimation of children. Note, however, that this is
not a requisite for applying the dispensation; the latter
can be granted even if there is no offspring to be legiti-
mated. Hence the insertion, " et si casus ferat." Legiti-
mation must be interpreted according to can. m6f.
(2) Who are meant by Ordinaries is explained under
can. 198, to which we refer. The Vicar-gcneral is in-
cluded here as well as in the following canons. The
diocesan chancellor, however, is not ipso facto included,
unless he has obtained the power, which is now an ordi-
nary one, from his bishop, either for a special case or
generally.30
(3) On whose behalf the dispensation may be granted
is determined by the words: subjects and actual residents.
Subjects are those who have their domicile or quasi-
domicile in the diocese. There is no need of making use
of the privilege of the monthly sojourn, for all acty,al resi-
dents may avail themselves of this favor. There is this
88 S. 0., July 1, 1891 {Coll. P. dispcnsare? Vil si monialis aegro-
F., n. 1758), the example ii as fol- tans in concubinatu viveret cum
lows: " Unde quun: civiliter sint diacono bene valente, essetne locus
coniuncti, aut alias in concubinatu dispensation*, quutn diaconus non
vivant. ex or., puella soluta et dia- sit in gravissimo mortis periculo
conus, iltaque aegrotonte, hie valens constitntusf"
sit, pouetne Ordimeriiu e*m his :-'-> Can. 100. I I-
>Ie
J ^ Original fronn
UNIVERSITY OF WISCONSIN
CANON 1043
99
-
■
difference, however, between these two classes of per-
sons, that the Ordinary's power, because voluntary, may
be exercised over his subjects even outside his own ter-
ritory. The distinction is of little practical value, be-
cause if subjects of the diocese of St. Joseph actually
dwell in Kansas City, the bishop of the latter diocese
may dispense them. The case is somewhat different
if one travels on land or sea, because an Ordinary can
dispense his own subjects everywhere, hence also in a
monastery of exempt religious.*0
It has been customary with canonists 41 to assert that
a dispensation can be applied only when a person had
either contracted a civil marriage or lived in concubinage.
This condition is no longer required, for the Code makes
no such restriction, and Cardinal Gasparri has, certainly
not without reason, omitted to cite the decision of Sept.
17, 1890, to which canonists were wont to appeal. For
the rest it ma)* be stated that this condition was not
attached to the dispositive part of the well-known decree
of Feb. 20, 1888." Let us illustrate. James is about to
marry Gemma, who is his second cousin, and with whom
he has had illicit relations which were apt to result in
pregnancy. But he is overtaken by the influenza and
in danger of death. Here the Ordinary may grant a
•0 The text say?: " locorur* Ordi-
narii," and hence religious superiors
are excluded. That exempt reli-
gious are residents of a diocese
needs no proof, for exemption —
unless there is question of an Ab-
batia Nullitu — is not directly
local, but personal. That such
religious belong to a diocese also
follows from the fact that they re-
ceive not only orders, but also
faculties from their Ordinaries.
si Thus Wernx, /. c, IV, Vol. II,
n. 617, p. 493; De Smet, /. c„ p.
49i.
42 Neither was this clause in-
serted in the decision of March 1,
1887 {Coll., n. 1698), to which
Wcrnz (/. c.) refers. But it is
true that the decree of Feb. ao,
1888, refers to that condition in
the narrative part, and that the de-
cision of Sept 17, 1890. directly
contains this clause; wherefore the
authori mentioned were perfectly
entitled to their interpretation.
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
ioo MARRIAGE LAW
dispensation. We again refer to what was stated under
n. I, viz,, that even if the sick party is not affected by
the dispensation, e. g.f in case of disparity of cult, the
dispensation may be made use of. Note, however, what
is said infra, under (5).
(4) What impediments may be dispensed from? The
Code says : all impediments of the ecclesiastical law,
whether public or occult, diriment or impedient, with the
sole exception of the priesthood and affinity in the direct
line. Hence, negatively speaking, no dispensation can be
granted for the impediment of ligamen or marriage bond ;
impotence; consanguinity in the direct line, and — at
least most probably — in the first degree of the collateral
line ; affinity in the direct line ; and sacred orders, i. e., the
priesthood. But dispensations may be granted from all
impediments, public or occult, diriment or impedient,
which latter include the five vows mentioned in can.
1058 and the impediment of mixed religion. That of
clandestinity is also included in the ordinary power of
dispensation, and solemn profession and the sacred orders
up to subdeaconship and the diaconate may be dispensed
from in such circumstances. Neither does the Code re-
quire that the Holy Office should be notified of dispensa-
tions granted to solemnly professed persons or persons
in sacred orders if they recover.*8 The multiplex im-
pediments of consanguinity and affinity44 may also be
dispensed from by the Ordinary in the case mentioned.
(5) Clauses or clausulae attached are: (a) Consum-
mate matrimonio, which is the most important condi-
tion, undoubtedly affecting the validity of the dispen-
sation. The legislator supposes a marriage which has
been consummated by the copula carnalis. Juridically
41 Such notification was required 44 Cfr. can. 1076 f.
by decree of Feb. 30, 1888.
►ogle
( * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 1043 io1
speaking, of course, there was no marriage at all. Hence
the union must bear the aspect and semblance of a
marital union. This may be effected either by a civil
marriage, or a putative union, or one which was consid-
ered such by the parties and their surroundings. It may
even be a concubinage, either legal or illegal. But the
semblance at least of a marriage is required, and the sup-
posed marriage must be consummated whether with or
without resulting offspring. Upon this point the parties
should be asked unless the existence of children makes
the question unnecessary. That any marriage carrying
with it the figure and semblance of a marital union is
here included is evident from the text. For this com-
prises also dispensation from the observance of the form
required.
(b) Remoto scandalo, as enjoined by the decree of
Feb. 20, 1888, especially concerning religious and clergy-
men dispensed in danger of death. If they recover, the
decree says, they should be induced to leave and go to
some place where their ecclesiastical status is unknown, or
if this is impossible, they should be given a wholesome
penance and have a conduct prescribed that would repair
the scandal given to the faithful. Concerning other per-
sons the decree is silent. The scandal of concubinage is
removed by marriage, which should be made known to
those who were scandalized, either by the pastor or
by the parties themselves. This clause does not affect
a
the validity of the dispensation.
(c) Concerning the impediments of disparity of cult
and mixed religion the legislator requires that the usual
condition imposed for such marriages should also be
demanded in cases where there is danger of death.
Now in case of disparity of cult these conditions (called
reversales) must be demanded and obtained under pen-
>Ie
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
102 MARRIAGE LAW
alty of the dispensation being null and void ; 4B in case of
mixed marriages the validity, of course, is not affected, as
this is only a prohibitive impediment.
powers granted to priests
Can. 1044
In eisdern rerum adiunctis de quibus in can. 1043 et
solum pro casibus in quibus ne loci quidem Ordinarius
adiri possit, eadem dispensandi facilitate pellet turn
parochus, turn sacerdos qui matrimonii ad normam
can. 1098, n. 2, assistit, turn confessarius, sed hie pro
foro intcrno in actu sacramentalis confessionis tantum.
This canon extends the favor to parish priests and to
every priest who is called upon to assist at a marriage -in
accordance with can. 1098, n. 2, as well as to confessors.
But there is a restriction : pastors, assistant priests, and
confessors can use this faculty only when access to the
Ordinary is impossible, and confessors only in the court
of conscience and in the act of sacramental confession.
• Otherwise the power granted to the Ordinary by can. 1043
may be used by these to the same extent and in the same
urgent cases.
(1) Pastors enjoy the faculty, not assistants as such,
unless they are actually in charge of souls. Vice-pastors
and chaplains are excluded.'10 However, since '
(2) Every priest who is entitled to assist at marriages
according to can. 1098, n. 2, may use the faculty of dis-
pensing, assistants may also exercise it. Whether the
pastor may, within his own district, delegate his assistant
to assist at a marriage which would not fall under can.
40 S. O., March 18, 1891 (Coll., 40 S. O., April jj, 1890 {Coll,
n. 1750); June *h '9,J W. Ap. n, 1728).
S., IV, 44a «-).
jle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON IQ44 103
a
1098, is not quite evident. The text as well as a de-
cision of the Holy Office seem rather against such dele-
gation.47 On the other hand, since the power is given by
law, and not merely by the Ordinary as a subdelegated
faculty/8 and since the pastor is empowered to delegate his
authority of assisting at marriages to any priest within
his district, it would seem that he may also delegate his
assistant for such a case. This is our personal view.
(3) The confessor may make use of the power granted
by law only in the court of conscience and in the act of
sacramental confession. Here a doubt may arise as to
public impediments, e. g.s consanguinity in the third de-
gree. For example: James, being in danger of death,
is engaged to Gemma, who is his second cousin. Fa-
ther John is his confessor, but not his pastor. The couple
would like to get married. What shall Father John
do? The first thing he should do is to ask the pastor
of James to hurry to the sickbed, or if no time is left for
that, Father John should act himself, not as confessor,
but as a priest who is allowed to assist by virtue of can.
1098, n. 2, and call two witnesses, after having heard
James's confession. In the presence of two witnesses
Father John should then ask and receive the consent of
James and Gemma and say : " By the authority granted
to me by the Holy Church, I dispense you from this
impediment and unite you in the holy bond of matri-
mony." If the impediment is occult and concerns James
only, Father John may grant a dispensation in the act
of sacramental confession, and then assist at the mar-
riage as above.48 If the impediment is public, he may also
*T Xbid. : " pou* iltom subdtU- 40 No recourse to the Holy See
gore habituolxttr parochis tontum." n required for a dispensation; cfr.
48 This U supposed in the decree Feije, /. c, n. 638, p. 576.
just alleged.
jte
£ * ^ ^ ,l,» Original from
UNIVERSITY OF WISCONSIN
104 MARRIAGE LAW
dispense in the act of sacramental confession, but as this
is valid only for the court of conscience, a regular dis-
pensation will have to be asked for afterwards.50
(4) Pastors, priests, and confessors can make use of
the faculty here under consideration only when access
to the Ordinary is impossible. This impossibility must
be understood of the ordinary means of communication,
by messenger, letter, or "express." Concerning tele-
graphic communication, the Holy Office has decided
that a dispensation given by the Ordinary in response
to a telegraphic message, is not valid before the au-
thentic document of the grant of favor has arrived,
unless the message was sent officially by authority of
the Holy See.51 As to the use of the telephone, its
validity depends upon prompt, reliable, and secret service.
The ordinary " party line " is no trustworthy and confi-
dential means of communication. But in no case is the
use of the telegraph or telephone mandatory,58 and even
if these means of communication are available, pastors or
priests or confessors could safely make use of the faculty
granted by can. 1044.
In order to complete our notes on these two canons it
may be well to ask a question concerning the distinction
between a marriage to be contracted and a marriage al-
ready contracted. Does the power of the Ordinary
and the faculty of the pastor, priest, or confessor hold
in both instances? The answer is yes, because the Code
makes no distinction, though this was not the common
80 Either from the Ordinary, if verified and registered, and the off-
he enjoys the faculty, or from the spring perhaps legitimated.
Holy See, i. t., the S. Cong, of the 01 S. O., Aug. 24, 189a (.Coll.,
Sacraments. Thia dispensation U n. 1810).
not superfluous, even if the other 61 Thus also De Smet, p. 507 (od.
party should die in the meanwhile, j).
because the marriage has to be
".
oogle
f^ ^ s ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1045 105
doctrine of writers before the Code."8 Their attitude
was doubtless based upon the theory that the faculties
could be applied only in cases of civil marriage or con-
cubinage. But the decision of the S. C. Sacr. had already
done away with that theory.04
casus perplexus
Can. 1045
§ i. Possunt Ordinarii locorum, sub clausulis in fine
can. 1043 statutis, dispensationem concedere super
omnibus irnpedimentis de quibus in cit. can. 1043,
quotics impedimentum detegatur, cum iam omnia sunt
parata ad nuptias, nee matrimonium, sine probabili
gravis raali periculo, differri possit usque dum a
Sancta Sede dispensatio obtineatur.
§ a. Haec facultas valeat quoque pro convalidatione
matrimonii iam contracti, si idem periculum sit in mora
nee tempus suppetat recurrendi ad Sanctam Sedem.
§ 3. In iisdeni re rum adiunctis, eadem facultate gau-
deant omnes de quibus in can. 1044, sed solum pro
casibus occultis in quibus ne loci quidem Ordinarius
adiri possit, vel nonnisi cum periculo violations secreti.
§ 1. Under the conditions laid down in can. 1043,
if the impediment is discovered when everything; is ready
for the marriage, and the ceremony cannot be delayed
without the probable danger of a grave inconvenience
until a dispensation is obtained from the Holy See, Ordi-
naries can dispense from all the impediments mentioned
in the same canon.
§ 2. This faculty holds good for the revalidation of a
B3 Cfr. Putzcr. Commtnt. in Foe. 54 S C. Sacr., Ventt., Aug. 16.
Ap., p. 83 (cd. 4); Wernx, I. c, 1909 W. *P- S.t I, 656).
IV, Vol. II, n. 617, p. 493.
Q
>Ic
k %\^ Original fro ni
UNIVERSITY OF WISCONSIN
the secret.
106 MARRIAGE LAW
■
marriage already contracted, if delay is dangerous and
there is no time to have recourse to the Holy See.
§ 3. In the same circumstances the pastor, priest and
confessor mentioned in can. 1044 enjoy the same fac-
ulty, but they are allowed to apply it only in occult cases
which admit of no recourse to the local Ordinary or if
access to the Ordinary would entail danger of violating
This is the well-known casus per plexus of canonists,55
which, however, by reason of can. 1043 and 1044, is now
reduced to a minimum.
(1) The local Ordinaries empowered to grant a dis-
pensation are all those mentioned in can. 198, therefore
also the vicar-capitular and the vicar-general.
(2) They must observe the conditions or clausulae
mentioned in can. 1043, '"•*« scandal must be removed, if
there be any, because the case of one in sacred orders or
with solemn profession is hardly imaginable. But the
other clause may easily occur; hence the conditions re-
quired for disparity of cxdt and mixed religion must by all
means (and under penalty of the nullity of the dispensa-
tion) be complied with.
(3) The impediments from which the dispensation may
be granted are those set up by ecclesiastical law only, with
the sole exception of the priesthood and affinity in the
direct line. Whether these impediments be diriment or
impedient, occult or public, matters nothing; the Ordi-
nary may dispense from all except the two expressly
mentioned.
(4) The circumstances in which the dispensation may
be granted are (a) if everything is ready for the mar-
riage (omnia sunt parata ad nuptias) and (b) if the mar-
riage cannot be postponed without the probable danger of
BS See, for imtance, Feije, J. c, a. 640 fl., p. 581 ff.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1045 107
a serious inconvenience until the dispensation could be
obtained from the Holy See, No doubt the latter clause
determines the .first one. It is not necessary for the
couple to be already in church for the wedding.81 We
understand the phrase " all things ready for marriage to
mean that the final arrangements have been made and the
day set for the wedding. The reason why the marriage
cannot be postponed is the probable, not certain, danger
of a grave inconvenience, such as the fear that one of the
parties might change his mind, or the probability that
scandal or disgrace might arise from a delay.57 Preg-
nancy of the bride would also justify the granting of the
dispensation, for this is a grave inconvenience.
What if the parties have purposely waited until the
last moment, and hence are evidently not in good faith,
especially if neither of them shows signs of repentance?
Some authors who wrote before the Code would not per-
mit a wedding under these conditions. However, the
old rule must be applied : The law does not distinguish,
and hence neither are we at liberty to distinguish, and
therefore, even if the impediment were purposely con-
cealed up to the last moment, when recourse to the Holy
See is no longer possible, a dispensation may be granted
by the Ordinary. Abuse or frivolous extension of the
power need not be feared,58 for the publication of banns
and the careful investigation and examination imposed on
the pastor will naturally reduce such cases to a minimum.
Besides, if the Ordinary is afraid of abuses creeping in, he
may and should at times refuse to grant a dispensation, in
order to procure the necessary respect for ecclesiastical
laws.
B« Tbui Feije, '. c, n. 642, p. ts This was the argument of
586. Card. Gouuet; apud Feije, I. c, a.
S7 Feije, /. c, p. 586. 644, p. 594-
oogle
k ,|,, Original fro m
UNIVERSITY OF WISCONSIN
108 MARRIAGE LAW
§ 2 rules that the faculty can also be applied in case
of a marriage already contracted that needs to be re-
validated, the two conditions required being the same :
danger in delay and no time for recourse. Cardinal
Gasparri refers to a decision of the Holy Office,60 which
reads thus : What should a pastor or priest do in case
he is called to the sickbed of a Catholic who was married
civilly to an infidel or heretic and is now almost uncon-
scious ? Answer : Let the bishop or pastor make use
of the faculty granted to the Ordinaries on Feb. 20, 1888,
and let the parties renew their consent and promise to
comply with the conditions required [for mixed mar-
riages]. Hence the Ordinary should simply grant a dis-
pensation (by telephone, if necessary) and the priest
should require renewal of the consent, after he has ob-
tained an oral80 promise of complying with the required
conditions.
§ 3 applies what is laid down in §§ 1 and 2 to the
pastor, priest, and confessor referred to in can. 1044,
with the additional proviso that the case be occult and
admit of no recourse to the Ordinary, or that such re-
course would endanger the secrecy of confession. Here
it is evident that telephone and telegraph are excluded,
and hence only the mails or a messenger can be employed.
The case must be occult. An occult case would be one
involving a secret crime or the vow of chastity.81 It may
also happen that a party was regarded as Catholic and
was not even baptized,62 or that one was godfather or
6D July 6, 1898, ad 3 (Coil., n. formerly was counted among the
3007). occult impediments, no longer cx-
flo Can. 1061 prescribes written ists, either as an impediment or aa
promises as " a rule," but this rule a penalty in regard to the debuum
may, in such circumstances, be pettndi.
licitlj' dispensed with. 02 S. O., Aug. as, 1906, ad 4
81 Affinity tx copula illicit*, which (Anal. Eccl., t. XV, p. 8).
jle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 1046 109
godmother to the party whom he or she wishes to marry.
All these cases may be occult, i. e., they could not be
proved in an ecclesiastical court, because there were no
witnesses68 or no record in the baptismal register.
Hence if the pastor or priest or confessor alone knows of
the impediment, he may dispense from it. But only in
that case. If the impediment were occult at the moment
of marriage but could be proved in court, because, as
said under can. 1037, two witnesses knew of it or an au-
thentic document existed, no dispensation could be granted
by these clergymen. The ancient theories of simulation
and cessation may henceforth be discarded, for it is
not likely that the Code permits a pastor to apply these
thories in casu perplexo, although we would not assert
that the old view on cessation of human laws under urgent
conditions is absolutely inapplicable in all circumstances.**
But simulation °5 of marriage with a fictitious or condi-
tional consent we hold to be unworthy of the marriage
contract.
dispensations to be reported and recorded
Can. 1046
•
Parochus aut sacerdos de quo in can. 1044, de con-
cessa dispensatione pro foro externo Ordinarium loci
statim certiorem faciat; eaque adnotetur in libro ma-
trimoniorum.
The S. C. of the Propaganda advised the priests of
Ireland not only to keep copies of, but also to record,
matrimonial dispensations." Now the Code demands
MCfr. A. S. S.. t 12. p. 422: m S. C. P. F.. July 21. 1791
can. 1037. (Coll., n. 605). The cause of not
** Fctje, /. c, n. 648, p. 601 f refriaterinff diipensatiom wai prob-
•8 Cfr. Prop. 29 damnata ab In- ably not careleieness, but some dip*
noctnth XI (Dcnzingcr, n. 1046). lomatic or political rca»oa.
Go >gle
, ,] , Original fro rn
UNIVERSITY OF WISCONSIN
N
■
no MARRIAGE LAW
that the pastor or priest — the confessor *7 is exempted —
immediately inform the Ordinary of every dispensation
granted in foro externo and also record the same in the
matrimonial register. Of course, the validity of a dis-
pensation does not depend on the fact of its being duly
reported and recorded.
DISPENSATIONS FOR THE INTERNAL FORUM
Can. 1047
Nisi aliud ferat S. Poenitentiariae rescriptum, dis-
pensatio in foro interne non sacramentali concessa
super impedimento occult o, adnotetur in libro diligen-
ter in secreto Curiae archivo de quo in can. 379 as-
servando, nee alia dispensatio pro foro externo eat
necessaria, etsi postea occultum impedimentum pub-
licum evaserit; sed est necessaria, si dispensatio con-
cessa fuerat tanturn in foro interno sacramentali.
The text distinguishes between a dispensation from
an occult impediment granted for the court of conscience,
but extra-sacramentally, and a dispensation granted in
the act of sacramental confession. The former should
be carefully recorded in a special book to be kept sep-
arately in the diocesan archives, as mentioned in can. 379-
No new dispensation is necessary for the external forum
if the occult impediment should afterwards become pub-
lic. On the other hand, a dispensation granted in the
act of sacramental confession does not hold in the ex-
ternal forum, and therefore a new dispensation is required
if the impediment becomes public. The beginning of the
canon should not be overlooked : " unless a rescript of
the S. Poenitentiaria ordains otherwise''
«TWhy the confessor is exempt pediment being occult, not to speak
!B evident from the fact of the im- of the teal of confession.
Gi , Original from
°°8IL UNIVERSITY 0FWI5C0NSIN
CANON 1047 "i
Under can. 258 the S. P. is competent in matters con-
cerning the internal forum. However, this must duly
be distinguished, for the favors granted by that sacred
tribunal may be applied outside of sacramental conies-
sion, e. g.t dispensation from vows or from occult im-
pediments, or they may be restricted to the act of sac-
ramental confession, e. g., absolution. Besides, this same
tribunal grants faculties to Ordinaries for a certain term
of years, five or three. The procedure is governed by the
Constitution of Benedict XIV, "In Apostolicae," of April
13, I744» and ky tne special rules laid down in the
" Sapienti consilio " of Pius X, which demands that the
Cardinal Poenitentiarius should have written rules signed
by himself.88 A special feature of this tribunal is that it
must keep everything secret and grant its favors entirely
gratis. All its officials are bound by a solemn oath. Its
present competency must, as stated above, be measured
by the powers granted by the " Sapienti consilio," not by
the "Pastor bonus" of Benedict XIV (April 13, 1744).
In matrimonial matters the term occult impediment must
be taken as defined in can. 1037 : it is one which cannot be
proved in the external forum. Therefore the faculty
formerly enjoyed by the S. P. " for the second degree of
consanguinity and affinity, if the impediment lasted at
least ten years and the petitioners had contracted publicly
and lived as married people,"88 no longer exists. All de-
pends on the occult nature of the impediment and on the
manner of expediting the favor. If the impediment was
occult and the dispensation was applied outside the con-
fessional, for instance, by the pastor, the dispensation
holds good in foro externo in case the impediment be-
comes public.
The reason for demanding a new dispensation in place
•BA. Ap. S., 1, 301 £. e»" Pastor bonus," 9 40.
I Originalfrom
1 K K >gie UNIVERSITY OF WISCONSIN
ii2 MARRIAGE LAW
of one applied only in the sacramental act, if the im-
pediment becomes public, lies in the seal of confession; 70
whence extra-sacramental and sacramental application
are, as it were, two different departments, though both
directly concern the court of conscience. The clause
therefore: "nisi alind fcrat S. P. rcscriptum," can
refer only to registration, as the grammatical construc-
tion seems to confirm. The meaning is : should the re-
script forbid recording, for instance, in the case of a crime
or vow, notation must be omitted ; otherwise it must be
made in the special secret record which is to be kept.
We may add that the S. P. is no longer empowered
to dispense from any public impediment, no matter
whether the petitioners are poor (in forma pauperum) 71
or wealthy. This was the custom before the Constitu-
tion " Sapienti consilio " of Pius X and was based on the
fact that this sacred tribunal granted all its favors gratis.
FACULTIES OF ORDINARIES
E
Can. 1048
Si petitio dispensationis ad Sanctam Sedem missa
sit, Ordinarii locorum suis facultatibus, si quas ha-
beant, ne utantur, nisi ad norrnam can. 204, § a.
If application for a dispensation has been made to the
Holy See, local Ordinaries should not use the faculties
they have, except in accordance with can. 204, § 2. This
canon rules that an inferior shall not interfere in matters
T» Because from this no public " Sapienti consilio " petitions of
document could issue, which would poor people, although concerning a
proTe the marriage, always rcmem- public impediment, were directed,
bering that marriage in itself is not not to the Apostolic Datary, to
of a private, but of a public char- which they belonged, but to the S.
acter. Poenit.
Tl Before the Constitution
gle
Original fro m
UNIVERSITY OF WISCONSIN
■
pi
CANON 1048 113
brought before a superior except for grave and urgent
reasons, in which case he must immediately notify the
superior.
This canon supposes that: (1) a petition was sent
to Rome for a dispensation from a matrimonial im-
pediment, and that (2) the Ordinary has power to grant
same. If he had no faculties, interference would not
only be ridiculous but presumptuous. Here we may
briefly state the contents of a decree of the S. C. Consist.,
"Proximo sacra" of April 25, 19x8, as compared with
that of Aug. 2, 1918.
FACULTIES OF THE ORDINARIES OF THE U. S. AND GREAT
BRITAIN
1. By Ordinaries ™ here are understood those who are
under the jurisdiction of the S. C. Consistorialis ; those
under the S. C. Propaganda Fide continue to enjoy the
same faculties as before.
In regard to matrimonial dispensations these Ordi-
naries are no longer entitled to use the faculties formerly
granted in various formularies, but their faculties are
now (since May 19, 1918) determined solely by the
Code."
2. The faculties granted by the S. Poenitcntiaria re-
main intact. Therefore, as far as this sacred tribunal is
able to grant faculties to our Ordinaries, these are only
given for occult impediments, as described under can.
1037 and 1047.
73 By "Ordinaries" here are and Mackenzie (Canada), of Brit-
underatood those mentioned in can. lab Honduras, the Hawaii or Sand-
198. but the " Abbas Nullius " of wich Islands, and Queensland, Aua-
Belmont, North Carolina, ai Vicar tralia.
Apostolic belongs to the S. C. de "'* The Quinquennium dates from
Prop. Fide; thus also the Vicars- May i8t 1918.
Apostolic of Alaika, of Athabailta
I by Google
j ^ Original from
UNIVERSITY OF WISCONSIN
"
114 MARRIAGE LAW
3. The decree ratifies the ruling of canons 1043-1045
concerning danger of death and the casus per plexus ex-
plained above.
4. Both decrees grant the faculty of dispensing from
minor impediments. The " Proxima," April 25, 19 18,
also permitted the Ordinaries to revalidate in the root
marriages invalid on account of one of these impedi-
ments, provided can. 1133-1140 be observed, and allowed
Ordinaries to dispense from those major impediments
which are of merely ecclesiastical law, with the exception
of affinity in the direct line and priesthood. But said
decree did not clearly grant the faculty of sanatio in the
case of these five impediments. Besides it contained the
clause: " if the petition has been sent to the Holy See and
urgent necessity has supervened, pending a recourse."
5. The decree of Aug. 2t 1018, has taken away this
clause, but at the same time it has limited the faculty of
dispensing from major impediments and mixed religion
and revalidating such marriages, invalidly contracted on
account of one of the major impediments, to the "dura-
tion of the present dire conditio?i of war." This latter
clause is set forth most conspicuously/*
6. Therefore the quinquennial faculties comprise the
power of dispensing from the minor impediments, to wit:
consanguinity in the second degree of the collateral line,
affinity in the second degree of the collateral line, public
honesty in the third degree, spiritual relationship, crime
with adultery and promise of marriage. These same
marriages may also be healed in the root, with due ob-
servance of can. 1133-1140. This faculty was granted
7* The clause " adiunctis, qua* practice after the wax. But it may
modo sunt, perdurantibus," as long be permitted to say that disparity
aa these conditions last, appears of worship and mixed religion
to be a hint that the Holy See would certainly demand some swifter
is resolved to put the Code into expedient.
* I Inr.al*> Original from
.OO^K. UNIVERSITY OF WISCONSIN
CANON 1049 "5
for five years, not only for the duration of the war.
7. The war-faculties comprise the power of dispensing
from major impediments (two excepted) of ecclesiasti-
cal law, either public or occult, simple and multiple, and
of revalidating marriages invalid from such impediments
without recourse to the Holy See; also of dispensing
from mixed religion without recourse.
8. The Holy Sec, according to decree of Aug. 2, 1918,
expects the Ordinaries to render an annual account of all
the dispensations granted during war-time and to refund
the fees for such dispensations granted by the Ordinaries.
9. We learn, through Rt. Rev. Bishop V. Wehrle,
O.S.B., that the Roman Court is willing to acknowledge
the right of Ordinaries to make use of can. 81, also with
regard to matrimonial dispensations.
10. Note, finally, that can. 204. § 2, referred to in can.
1048, demands a grave and urgent cause, without which
an Ordinary, being inferior to the Sovereign Pontiff, can
neither validly nor licitly dispense. A grave cause is one
which touches the intrinsic nature of the case, or, in other
words, one which the law has acknowledged as canonical.
An urgent reason is one which, because of time or cir-
cumstances, brooks no delay. For the validity of a dis-
pensation a grave cause is sufficient. What are consid-
ered canonical reasons will be explained under can. 1054.
Q
cumulative faculties
Can. 1049
§ 1. In matrimoniis sive contract is sive contra hendis,
qui gaudet indulto generali dispensandi super certo
quodam impedimento, potest, nisi in ipso indulto aliud
expresse pracscribatur, super eo dispensare etiamsi
idem impedimentum multiplex sit.
oogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
-'
n6 MARRIAGE LAW
§ 2. Qui habet indultum gcncralc dispensandi super
pluribus diversae speciei impedimentis, sive dirimenti-
bus sive impedientibus, potest dispensare super iisdem
impedimentis, etiam publicis, in uno eodemque casu
occurrentibus.
This canon betrays a greater liberality on the part of
the lawgiver than was usual with canonists, who based
their views on former decisions. Two different cases
are distinguished : dispensation from multiplex impedi-
ments of the same species but of different degrees, and
dispensation from several impediments of the same degree
but of a different species. The grant of these faculties
must be made by a general indult, not merely by a rescript
in a particular case. Such a general indult no doubt is
that granted by the " Proximo sacra" April 25, 1918, and
by the decree of Aug. 2, 1918. The canon makes the re-
striction : " nisi in ipso indult 0 aliud expresse praescriba-
tur," i. e.j unless the indult explicitly declares otherwise.
Therefore the wording of each indult must be carefully
examined. The two decrees just mentioned contain no
such clause, and therefore our bishops certainly enjoy
the powers granted in virtue of this canon as long as the
general indult shall last.
§ 1 grants to those who are endowed with a general
indult the faculty of dispensing from an impediment, al-
though it be multiple, no matter whether there is ques-
tion of a marriage already contracted or to be contracted.
For instance, one is related to his partner in the second
degree by a double stipes arising from the same common
progenitors, or is related in the third degree and also in
the second degree on account of common progenitors
(can. 1076). In that case the degree is multiple, but the
species is the same. This practice is also followed by
p
.'le
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1049 117
the S. Poenitentiaria,™ and therefore is to be applied to
occult impediments.
§ 2 extends the cumulative faculties to impediments of
a diverse species. He who has a general indult to dis-
pense from several impediments of a diverse species, be
they diriment or impedient, can dispense from these same
impediments if several of them occur in the same case.
This would happen if, e. g., disparity of cult concurred
with consanguinity. There was no doubt that, if a public
impediment, e. g., public honesty, coincided with an occult
impediment, e. g., crime, the faculties could be used
cumulatively.76 But there was doubt as to cumulation
when two impediments of a different subspecies, as is
the case in crime with its three diverse distinctions, con-
curred. Besides it was denied that the faculties could be
" bulked " if two different kinds, as exemplified in con-
sanguinity and disparity of cult, would concur. Our
text, however, admits cumulation in both these cases, even
though two or more impediments concur in the same case.
Furthermore the text permits cumulation in cases of
two different impediments, one being prohibitive only
whilst the other is diriment.77 For instance, if Gemma,
who has made the vow of celibacy, wishes to marry
James, who is her second cousin, the Ordinary, or any
one who has the faculty, may grant a dispensation. From
the vow of non-nubendi or celibacy the Ordinary may dis-
pense because that vow is not reserved,78 and from the im-
pediment of consanguinity by virtue of the decree or
76 S. 0-, June 19, 186] ; June 15, n. II of the last-named decision
1875; April *, 189a (Coll., nn. 1218, would exclude cumulation in caie
1445, 1789)1 S. Poenit., Ar.ril 20, one impediment wai a diriment and
1883 (Call, cit., n. 1595)- the other a prohibitive one. if the
T6S. C. P. F., March 31, 187a latter was cither that of mixed re-
(Coll., n. 1382). ligion or arose out of the tow of
7TS. 0., April 2f 189a; Aug. 18, perpetual chastity.
1897 (Coll., nn. 1445, 1979); hut 78 Can. 1309.
Q
".
>Ie
^1,* Original from
UNIVERSITY OF WISCONSIN
-'
p
118 MARRIAGE LAW
general indult granted April 25, 1918. From both to-
gether in one and the same case he may dispense in virtue
of our canon 1049.
CONCURRENCE OF DISPENSABLE AND INDISPENSABLE
IMPEDIMENTS
Can. 1050
Si quando cum impedimento seu impediments pub-
licis super quibus ex indulto dispensare quis potest,
concurrat aliud impedimentum super quo dispensare
nequeat, pro omnibus Sedes Apostolica adiri debet; si
tamen impedimentum seu impedimenta super quibus
dispensare potest, comperiantur post irnpetratam a
Sancta Sede dispensationem, suis facultaubus uti po-
tent.
/»
This text also supposes a general indult or general
faculties, not merely a particular indult for an individual
case. However, it is safe to say that at present this
canon does not affect our American Ordinaries, for it
supposes Ordinaries who have limited faculties with
regard to certain impediments iuris ecclesiastici, but can
not dispense from other impediments of the same class.
The meaning is that if an impediment from which they
cannot dispense, concurs with another public impediment,
or with several public impediments, from which they
can dispense, they must petition the Apostolic See for all
impediments. If, however, the impediment or impedi-
ments from which they can dispense are discovered
only after petitioning the Holy See for a dispensation,
they may make use of their faculties.
A letter of the S. C. P. F. to the delegate of Syria
at Beirut TB will illustrate our canon. According to the
71 S. C P. F., May 10, 1887 {Coll., n. 1674).
jle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 1050 119
common doctrine of theologians it is necessary to explain
all the impediments and circumstances that prohibit a
marriage, otherwise the dispensation is invalid. This
expose must be made in one and the same petition, be-
cause the whole matter in all its bearings must be made
known to the one who dispenses, and a greater number
of impediments renders the dispensation more difficult.
Therefore if a diriment impediment which requires re-
course to the Holy See (or a Patriarch, if he has the
faculty) concurs with another diriment or impedient
impediment from which the bishop can dispense, both
must be explained to the Holy See. If this is not done,
the bishop can not validly dispense from the impedi-
ments from which he could otherwise dispense. The
Code annuls a decision of the S. Poenitentiaria 80 which
denied the validity of the dispensation granted by the
bishop in a matter subject to him. Therefore the sec-
ond clause of our canon says that in case of the discovery,
after a dispensation has been granted by the Holy See,
of an impediment from which the Ordinary can dispense,
he may apply his faculty.
legitimation of ciiildren
Can. 1 05 1
Per dispensatkmem super impedimento dirimente
concessam sive ex potestate ordinaria, sive ex potestate
delegata per indultum generate, non vero per rescrip-
tum in casibus particularibus, conceditur quoque eo
ipso legitimatio prolis, bi qua ex iis cum quibus dis-
pensatur iam nata vel concepta fuerit, excepta tamen
adulterina et sacrilega.
*o Ibid. {Coll, n. eit.).
Go >gle
% ,.] , Original from
UNIVERSITY OF WISCONSIN
120 MARRIAGE LAW
St
The Code distinguishes between a dispensation from a
diriment impediment granted either in virtue of ordinary
power (such a one is contained in canons 1043-1045)
or of power delegated by general indult (such as our
Ordinaries enjoy by the decree of April 25 and Aug. 2,
1918) and a dispensation granted by a rescript in a
particular case. The former implicitly legitimates the
offspring, whether born or only conceived, of the dis-
pensed parents, provided it be not adulterine or sacrile-
gious.81
By a special favor of the Sovereign Pontiff, of course,
sacrilegious and adulterous offspring can be legitimized.
But a rescript as such issued for a particular case has not
the effect of legitimating children of any kind of illegiti-
macy, unless this effect is explicitly mentioned in the
rescript. As to the different kinds of illegitimacy, see
can. 1 1 14 f . An individual case is hardly imaginable as
long as the general indult of April 25 and Aug. 2, 1918,
lasts. But when it shall cease, the Ordinaries will have
to apply for single cases and then our canon takes full
effect. The S. Cong. Sacrament, has special formularies
for legitimation, which are not identical with those re-
quired for dispensations, and therefore the executor of
such a rescript should carefully study its wording.
error in dispensation
Can. 1052
Dispensatio ab impedimento consanguiniiatis vel
affinitatis, conccssa in aliquo impediment! gradu, valet,
81 S. O., Dec 12, 17481 *d 1; legitimation in the following words:
July 8, 1903 (Coll., mi 368, -■ i;m). " Eadem auctoritaie prolem tive
The clergyman who applies the dis- tMicepttm tive suscipiendam legiti-
permit ion may, according to previ- mom decerno." Cfr. Leitaer, I. c,
oui decisions, declare the act of p. 455.
oogle
v ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1052 121
licet in petitione vel in concessione error circa gradum
irrepserit, dummodo gradus revera exsistens sit in-
ferior, aut licet rcticitum fuerit aliud impedimentum
eiusdem speciei in aequali vel inferiore gradu.
A dispensation from the impediment of consanguinity
or affinity, granted for a certain degree, is valid even
though a mistake was made concerning the degree in the
petition or concession, provided that the real degree be
inferior to the one which was mentioned. It is valid
also though an impediment has been concealed in the pe-
tition, provided it be of the same species and of an equal
or inferior degree.
Two cases may illustrate this canon. James and
Gemma are actually related in the third degree (1. e., sec-
ond cousins), but the petition for a dispensation was
worded in such a way that the second degree could be
read into it (t. e., that they were first cousins). A dis-
pensation was granted from the impediment of consan-
guinity in the second degree of the collateral line, whilst
actually it was needed only for the third degree. The
dispensation is valid.82
The second clause of our text concerns an impediment
that is concealed, but of the same species as the one for
which a dispensation is asked. For instance, James is
related to Gemma not only in the third degree, but also,
on account of common progenitors, in the second de-
gree ; therefore there are two impediments. Now if
the latter was duly stated, but the former concealed or
forgotten, the dispensation is valid. But if a dispensa-
tion would be asked and granted from affinity instead
a
c
82 The Const, of St. Pius V, if the more distant degree was ex-
" Se.'ic'.issimus." of Aug. so, 1566 pressed in the petition, provided
<Colt. P. F.. Vol. I, p. an) ad- the real degree was the first,
mitted the validity of a rescript even
►ogle
£ ' ^ , ,1,., Original from
UNIVERSITY OF WISCONSIN
122 MARRIAGE LAW
of consanguinity, it would be invalid, and the so-called
Perinde valere rescript would have to be requested, to
make the previous rescript valid.88 Such a procedure
would also become necessary if instead of the direct line
of affinity, the collateral line had been stated in the pe-
tition.
Attention may here be drawn to can. 47, which renders
good service when a mistake has been made in spelling or
writing the name of the petitioner. If the names are
misspelled, the rescript is nevertheless valid so long as
the parties can be properly identified.
When a rescript is asked from the S. G of Sacraments,
or from the Holy Office (in matters of disparity of cult
and mixed religion), the petitioners must state their
baptismal and family names as well as the name of the
diocese to which they belong, their age and religion.
In cases of mixed religion the petition is made in the
name of the Catholic party only.
It is advisable to use the typewriter for names. If the
petition is directed to the S. Poenitentiaria, fictitious
names are used, but the impediments must be clearly
described as to species, number, and degree.
implied dispensation from the impediment of crime
Can. 1053
Data a Sancta Sede dispensatio super matrimonio
rato et non consummato vel facta permissio transitus
as The decree perinde valere, This rescript revalidates the favor
properly io-caIl<d, it a declaration granted and exerti its force from
issued in case the first rescript has the date when the favor was first
already been expedited, and de- granted, provided no new defect or
crees it to be valid, just as if impediment has occurred in the
everything had been properly ex- meanwhile. Cfr. Putter, Comment.,
pressed (valere, perindt ac si ab ed. 4, pp. 25, 95.
initio omnia fuissent recte expresia).
G» ^Ic
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 1053 123
ad alias nuptias ob praesumptam coniugis mortem, se-
cumfcrt semper dispensationem ab impedimento pro-
veniente ex adulterio cum promisBione vel attentatione
matrimonii, si qua opus sit, minime vero dispensa-
tionem ab impedimento de quo in can. 1075, nn. 2, 3.
A dispensation granted by the Holy Sec from marriage
ratified and not consummated, or permission given to
marry again on account of the presumed death of the
other spouse, always includes a dispensation from the
impediment arising from adultery with promise of, or
attempt at, marriage (by civil act), if there be need of
such, but not from the other two impediments of crime
(can. 1075, n. 2, 3).
The occasion for this enactment, as may be inferred
from a decree of the S. C. of Sacraments,84 was this:
Two parties had received a dispensation from a ratified
marriage, the papers attesting their free status on ac-
count of the presumed death of one party, and were mar-
ried in church after having contracted a civil marriage
with another party with whom they had intercourse dur-
ing the first marriage. Take a case that may occur at any
time. James is supposed to have been killed in war, and
his wife Gemma, tired of waiting until the way is fully
cleared, obtains a document certifying to her free status,
but omits to state in the petition that she committed
adultery with Brutus whilst her husband was still alive
and that she contracted a civil marriage with Brutus
before permission to remarry had been issued. Now
after the permission has been granted, they wish to get
married in church. In such a case, the canon says, the
permission granted includes a dispensation from the im-
pediment of crime of the first kind. But if Gemma had
84 June 3, 191a {A. Ap. S., IV, 403).
;Ic
I , Original fro ni
UNIVERSITY OF WISCONSIN
I24 MARRIAGE LAW
killed her husband or caused him to be killed, and com-
mitted adultery with Brutus besides; or if Brutus and
Gemma had plotted together against the life of James
and the plot resulted in his death, the permission granted
would not include a dispensation from that twofold
crime.
Here is another similar case. James and Gemma had
their marriage declared null by the Holy See because of
alleged impotency or fear. The marriage had been valid,
though it was never consummated. Gemma, still being
the wife of James, had intercourse with Brutus and
promised him to marry him after the dissolution of her
union with James. Now in the petition for solution this
impediment of crime was not mentioned. Therefore, be-
cause of the impediment of crime, the marriage of Gemma
and Brutus was invalid, even though it had been solem-
nized in church. But the Code says that dispensation
from a ratified marriage also includes dispensation
from the impediment of crime of the first species, and
therefore the union of Gemma and Brutus is legal and
valid.
reasons for dispensations
Can. 1054
Dispensatio a minore impedimento concessa, nullo
sive obreptionis sive subreptionis vitio irritatur, etsi
unica causa finalis in precibus exposita falsa f uerit.
A dispensation granted from a minor impediment
is not vitiated by the fact that a falsehood has been ex-
pressed or the truth suppressed in the petition, even
though the sole final cause alleged be false.
Note the term "minor impediment" Major impedi-
ments are excluded from the benefit of this canon. The
.'le
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1054 125
subreptitious or obreptitious petition and consequent
erant may not be extended to other rescripts,86 as this
favor is attached only to marriage, on account of its
public character and the welfare of souls involved.
In order to understand the text more thoroughly it
must be remembered that the Sovereign Pontiff alone
(to the exclusion of Ordinaries who have faculties) can
■dispense without cause in matters entirely subject to his
legislative and judiciary power. But as dispensations are
considered " a sore on the law," it is to be presumed that
the Apostolic See does not grant favors without a cause.
Therefore, as an instruction of the S. C. P. F. says,80 dis-
pensations should not be granted without legitimate and
weighty reasons, and the graver the impediment, the
weightier the reason required for a dispensation. The
Norntae Peculiares for the S. C. of Sacraments " declare
that all dispensations from minor impediments are granted
for reasonable motives approved by the Holy See.
A motive may be either the final one, which alone de-
termines and moves the grantor to grant the favor; or
it may be an impelling cause, i. e., one that helps to move
the grantor. One final cause (causa nwtiva) is suf-
ficient for obtaining a dispensation. But sometimes one
impelling cause (causa impulsiva) is insufficient, whereas
several of the same kind amount to a final cause. Hence
it is that different reasons for granting dispensations
have been " canonized n or formally approved by the
Roman Court, and the above mentioned instruction of the
S. C. P. F. exhorts petitioners to mention several rea-
sons, if possible. With regard to minor impediments
any reason, if accepted, is sufficient and the dispensation
is valid, even though the final cause alleged in the pe-
so Cfr. can. 4a. 87 A. Ap. S., I, 92 (P. II, c. VII,
*a May 9, 1877 (.Coll., n. 1470). art 3, n. ai).
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
. 126 MARRIAGE LAW
%
tition be false. For the S. C. of Sacraments grants these
dispensations " ex tnotu proprio et ex certa scientia"
which clause revalidates all subreptitiously or obrepti-
tiously obtained rescripts.
The reasons given in the instruction of S. C. P. F.
are the following:
(i) Angustia loci or smallness of the place or town
(not parish).88 This reason can be alleged by a girl
living in a place with less than 1500 inhabitants, because
in such a small place it is difficult for a girl — not a
widow — to find a husband of equal social standing.
(2) Aetas fetninae superadulta, or relatively advanced
age of the girl, if she is more than twenty-four years old.
(3) Deficientia out incompetentia dotis, if a woman
has no dowry or property, and a relative would marry
or endow her under certain conditions.
(4) Lites super successione bonorum iani exortae vel
earundem grave ant imminens periculum, which would be
the case if the quarrel could be settled by a marriage
between relatives or if the husband in spe were the only
man who could settle a lawsuit concerning property or
inheritance.
(5) Paupertas viduae, poverty in the case of a widow,
especially if she has many children.
(6) Bonum pacts, if it is possible by a marriage to
settle family or feudal quarrels and remove long-standing
enmities.
(7) Nimia suspecta periculosa familiaritas, too long
88 S. C. C, Dec. 16, 1876 (Coll. ultra milliare." A focus or focu-
P. F., n. 1463): " angustiam loci nan lore signifiei a home or hearth or
esse desumendam a numero focorun family; a amall place is one not
[the reading in the text: locorum having more than three hundred
if a manifest mistake] cuius que families, and taking a family to
parochiae, sed a numero focorum consist of five members, we have
euiusque loci vet etiam plurium the number 1500 given above.
locorum, si non distent ad invicem
t I Original fro ni
■OOgie UNIVERSITY OF WISCONSIN
CANON 1054 127
courtship and great intimacy, which might cause suspicion
or scandal.
(8) Copula cum consan guinea, pracgnantia ideoque
legitimatio prolis, which requires marriage in order that
the damage be repaired and disgrace averted.
(9) Infamia mulieris, ill fame of the woman, caused
by the fact mentioned under n. 7, even though she be
innocent,
(10) Rcz'alidctio matrimonii, if a marriage has been
contracted in the prescribed form and in good faith.
(11) Periculum matrimonii mixti vel coram acatholico
ministro, danger of a mixed marriage, which is present es-
pecially in small congregations and in communities with
a preponderantly non-Catholic population.
(12) Periculum incestuosi concubinatus, when near
relatives live under the same roof and in imminent danger
of concubinage.
(13) Periculum matrimonii civilis, danger of a civil
marriage if a dispensation be denied.
(14) Remotio gravium scandalorum et cessatio publici
concubinatus ; serious scandal and cessation of public con-
cubinage are generally connected, and here supposed to
be existing.
(15) E.rcellcntia tneritorum, if one has deserved well
of the Catholic faith by combating its enemies in word
or writing, or by generosity, or conspicuous learning and
virtue.
These are the usual grounds (though not all) upon
which a dispensation is granted. And the aforesaid in-
struction admonishes those who grant dispensations by
delegated power to proceed properly and in a becoming
manner.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
128 MARRIAGE LAW
execution of dispensations
Can. 1055
Dispensations super publicis impedimentis Ordi-
nario oratorum commissas, exsequatur Ordinarius qui
litteras testimoniales dedit vel prcces transmisit ad
Sedem Apostolicam, etiamsi sponsi, quo tempore ex-
aecutioni danda est dispensation relicto illius dioeccsis
domicilio aut quasi-domicilio, in aliam dioecesim dis-
cesserint non amplius reversuri, monito tamen Ordi-
nario loci in quo matrimonium contraherc cupiunt.
The text refers only to public impediments, from which
a dispensation was indeed granted by the Holy See, but
by rescript forwarded to the Ordinary. For it is the
latter who is generally — exceptions are not frequent,
though possible — set up as executor. As such the Ordi-
nary must, as stated elsewhere,80 examine the rescript
closely, to see whether it is genuine and whether he is an
executor necessarius or voluntarius. But it is safe to
say, in view of can. 1054, that he need not examine the
existence of the reasons alleged, if dispensations from
minor impediments are the object of the rescript. There
is only one reason that might justify the executor in with-
holding execution, viz., unworthiness of the petitioner,
and in that case the Holy See must be immediately in-
formed.00 If a dispensation from a major impediment
was granted by the Holy See with clausulae like this:
"Si preces veritate nitantur" or, "si constiterit," or
" constito," then the Ordinary is an executor voluntarius
or mixtus, who must verify the reasons before he "fulmi-
nates" the dispensation. If absolution from censures is
•» Cfr. VoL I of this Comroen- bo Ibid., p. M3>
t»ry, p. 14X.
ogle
% .,1,., Original from
UNIVERSITY OF WISCONSIN
CANON ioss 129
required, he has to impart it, either personally, or through
the pastor or confessor.*1
Our text supposes that a valid and properly drawn up
rescript has been forwarded to the Ordinary, who sent
either a recommendation (litteras testimoniales) or a
petition for it to the S. C. of Sacraments. A recom-
mendation may be sent if the Ordinary doubts his own
competency," and therefore does not care to send a peti-
tion himself, but lets the petitioners do so. As a general
rule, if the petitioners are his subjects by reason of domi-
cile or quasi-domicile, the Ordinary forwards the petition
and in that case is called Ordinarius oratorum and re-
ceives the dispensation. He may execute the dispensa-
tion even though the petitioners (sponsi) have given up
their domicile or quasi-domicile in his diocese at the time
the dispensation is to be used, and have gone to another
diocese with the intention of not returning.
The Ordinary who executes the rescript should inform
the Ordinary in whose diocese the wedding takes place."
Thus if James and Gemma, dwelling in the diocese of
St. Joseph, were granted a dispensation by the Holy See,
and the rescript was sent to the Ordinary of that diocese,
supposing the parties have meanwhile removed to Spring-
field, Mo., in the diocese of Kansas City, the bishop of
St. Joseph or his vicar-general may send the rescript to
the Ordinary of Kansas City with the words: "As
executor of the rescript enclosed we hereby execute the
dispensation granted by the Holy See," followed by the
01 Cfr. Putzer, /. c, p. 106 f. »» The rescript is generally ad-
•s A doubt might arise from un- dressed to the Ordinariuj, for in-
certainly whether or not the peti- stance, St. Jostphi; if it ia ad-
tionera belong to the dioceae; thia dressed to the Epiteoput, the
doubt was removed by the S. O., bishop and not the Vicar-generai
July 6, 1896 (Coll., n. 1945) by must attend to the matter,
abolishing the former condition:
intra tinea diotceiis.
* x/\.-iL» Original from
ioi >gle
UNIVERSITY OF WI5C0NSI
130 MARRIAGE LAW
name of the executor. The fee which is usually fixed and
written on the back04 of the rescript, belongs to the exe-
cutor, in our case the Ordinary of St. Joseph.
charges for dispensations by rescript
Can. 1056
Excepta modica aliqua praestatione ex titulo ex-
pensarum cancellariae in dispensationibus pro non pau-
peribus, locorum Ordinarii eorumve officiales, repro-
bata quavis contraria consuetudine, nequeunt, occa-
sione concessae dispensationis, emolumentum ullum
exigere, nisi haec facultas a Sancta Sede expresse eis
data f uerit ; et si exegerint, tencntur ad restitutioncm.
It is not necessary to defend the right of the Apostolic
See to a fair remuneration for the work involved in issu-
ing papal documents. Any one who has a little business
capacity will see that a court like the Roman needs a
large and expensive machinery. Many buildings and
persons compose the Apostolic Chancery, and the ex-
penses of conducting it run high, especially at the present
time when the cost of living for the officials is steadily
increasing. It is not true, as we sometimes hear, that
there are " too many lazy employees." The S. C. of the
Sacraments, the one we are dealing with here, is not
only overburdened with work, but short of help. We will
add that the taxes demanded do not involve simony, but
their payment is merely an act of deference and gratitude
to the Apostolic See in recognition of the favor granted,
and an act of justice towards those who are occupied with
9* On the bach there are gener- Executoria, Li belli (for the ex*
ally three kinds of fees to be no- ecutor of the rescript),
ticed in the following order: Agensia, Libelli (for the Agent
Taea, Libelli <in Italian lire; 1 in Rome).
lira = about 18 cents).
§le
£ ' ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 1056
I3r
■
the tedious labor necessary for the conduct of the chan-
cery. Besides it must be remembered that dispensations
are u a sore on the law," which must be repaired, and
marriages with impediments must be prevented whenever
possible.
Here it will not be amiss to state some rales which are
in force at the Roman Court with regard to fees or taxes.
The Normae Communes66 published in connection with
the Constitution " Sapienti consilio" of Pius X (1908),
lay down the following rules :
( r ) For matrimonial dispensations the rules prevail-
ing in the Apostolic Dataria, the S. Poenitentiaria, and
the S. C. Concilii are still in force. Their scale of
taxation is approximately the following. Taking the an-
nual surplus of income over necessary expense as a
standard, those are really poor whose net annual profit
after all expenses are counted off amounts to about $25.
Those whose annual net surplus amounts to about $80,
are quasi-poor. All others are not to be regarded as
poor. The really poor pay no cotnponenda9* or tax,
but only a moderate fee besides the postage. The quasi-
poor pay $2 in addition to the fee imposed on the really
poor. All others must pay a certain percentage, reckoned
in proportion to the capital and their net yearly revenue.
For instance, one who has an income of $10,000, of which
$400 are reckoned as net annual profit, pays a certain
per cent of that profit, according to the importance of
w Cfr. a. Ap, s., i, 55 f-
•O Cfr. Caspar ri, De Mai., n. 315;
Leitner, /. c, p. 42a f. A com-
ponenda, also called compositio, is
a 6ne to be paid for dispensations
from consanguinity and affinity and
is expended for works of charity
(in pias causes). A taxa or tax,
properly so called, is a fee for de-
fraying the expenses of the Roman
congregations and tribunals (cf.
Feije, I. c, n. 691 f.). When X re-
ceived my American passport, I had
to pay $1 to the American Consul
General at Zurich in Switzerland,
and an additional $1 for the signs-
tare of each consul of the different
countries through which I had to
travel.
oogle
Original from
UNIVERSITY OF WISCONSIN
132 MARRIAGE LAW
the impediment and the character of the reasons advanced.
We mention this rule here to give a clue to Ordinaries
who try to be conscientious in such matters.
(2) The Ordinary should secretly ask the pastor con-
cerning the financial status of the petitioners in order to
decide whether they deserve a reduction of the tax, i. e.,
whether they are really or quasi-poor. If any of the par-
ties concerned, or the pastor, or the Ordinary grievously
offend against this rule, they are obliged to make resti-
tution.
(3) If the petitioners maliciously refuse to pay the
tax or commit fraud, and the dispensation is necessary
for removing scandal or sin, the Ordinaries must men-
tion this circumstance in the petition, and when they
communicate the dispensation, admonish the parties of
their duty towards the Apostolic Chancery. However,
neither fraud nor error concerning the financial condition
of the parties concerned in any way affects the validity
of the rescript.
We deemed it necessary to set forth these facts here,
though they do not bear directly on can. 1056, which
refers to the charges made by the diocesan clxancery.
With the exception of a moderate fee for the expenses
of the chancery, it says, the local Ordinaries or their offi-
cials are not allowed to charge anything for dispensa-
tions, unless the Holy See has expressly granted them
permission to make a charge. Every contrary custom is
reprobated. If a charge is made without permission, the
officials are bound to restitution.
The Council of Trent97 and the Roman Congrega-
tions 8B had strictly forbidden Ordinaries to make any
■"■
BT Sea*. 24, c 5, De rtf. mat. absque ulla prorsus mtrced* imptr-
»8 Thus the S. O., Jan. la, 1769 tiantur"); S. C. C, July 3, 1634;
<n. 47a. II. j): "«* 4«#d#» dis- S. C P. F., Jan. 14. 1716 (Coll.,
pens3tio*ti gratis ommino tt n. ai88).
jle
I , Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1056 133
charge, especially in the shape of a fine, for dispensations
granted in virtue of faculties received from the Holy See.
Even the bishops of Ireland, who received but a bare
pittance from their clergy, were not permitted to exact
any fees for dispensations." Only the bishop of Quebec
for special reasons obtained the privilege of demanding
a moderate tax from rich as well as poor, according
to their means, but the money had to be used for pious
purposes.1 Otherwise demanding a fee for dispensa-
tions granted in virtue of Apostolic faculties was strictly
forbidden, even under pain of nullity of the dispensa-
tion.* However, this must not be understood liter-
ally. When a rescript bears on its back the remark:
taxa — so much ; executoria — so much ; agenzia — so
much, the resp. Ordinary is allowed to demand the sum-
total of these fees from the parties concerned. Besides,
the chancellor is entitled to demand a moderate fee for
chancery expenses and postage.
A difficulty arises concerning the faculties granted to
our Ordinaries by the decrees of April 25 and Aug. 2,
1918. The latter prescribes, as stated under can. 1048,
that Ordinaries have to render an account of the dispen-
sations granted and, on the same occasion, pay the amount
due to the Holy See. Here Ordinaries are plainly
allowed to collect the usual fee demanded by the Holy
See, because they are commanded to forward the money
to Rome; for if they were not permitted to collect the
tax usually imposed by the Roman Court, they would
have to pay the iura demanded by the Holy See out of
their own pockets, which cannot be the intention of
Rome.
•»S. C. C, J. c; S. C. P. F., 1 S. C. P. F„ July 4. *793
Feb. la, i8ai {Coll., n. 755)- (Celt., n. 6x6).
tlbid.
Go >gle
j , Original fro ni
UNIVERSITY OF WISCONSIN
134
MARRIAGE LAW
As to restitution, note that the text says that it becomes
obligatory only if the Ordinaries have exacted (exege-
rint3) money. A voluntary contribution does not oblige
to restitution.
mention of delegation when dispensing
Can. 1057
Qui ex potestate a Sede Apostolica delegata dispen-
sationem concedunt, in eadem expressam pontificii in-
dulti mentionem faciant.
■
Those who grant dispensations in virtue of delegated
power from the Apostolic See, shall mention the papal
indult when using it.
This text cannot be construed as if the mention of
delegation affected the validity of a dispensation. In
matter of fact it affects only the licitness of the same ; 4
otherwise the lawgiver would have appended an invali-
dating clause. But it must be expressed in the use of
both a general and a particular indult, and all the
clausulae must be observed as far as circumstances
permit.5
a Rentd. XIV. " Ad luas." Aug.
8, 1748, demanded the insertion of
this clause in erery rescript under
penalty of nullity of the dispensa-
tion. This shows how carefully
even the appearance of simony
must be avoided.
4 The Holy Office (June 15,
1875; Coll, n. 1444) has limited
the import of this clause to licit-
ness.
riM,
oogle
Original from
UNIVERSITY OF WISCONSIN
■
CHAPTER III
PROHIBITIVE IMPEDIMENTS
The Code mentions only three prohibitive impediments :
vow, legal adoption, and mixed religion. However, it
enumerates five different vows, and if these are taken as
specifically distinct, there are seven prohibitive impedi-
ments, which we shall now proceed to explain.
THE IMPEDIMENT OF VOW
in
"a
Can. 1058
§ z. Matrimonium imped it votum simplex virginita-
tis. castitatis perfectae, non nubendi. suscipiendi or-
dines sacros et amplectendi statum religiosum.
§ a. Nullum votum simplex irritat matrimonium, nisi
irritatio speciali Sedis Apostolicae praescripto pro ali-
quibus statuta fuerit.
§ 1. Marriage is rendered illicit by the simple vow not
to marry, the vow of virginity and perfect chastity, the
vow to receive sacred orders or to embrace the religious
state.
§ 2. No simple vow invalidates a marriage unless the
Apostolic See has made a special enactment to that effect.
The final clause is plainly intended to safeguard the
constitutions of the Society of Jesus, for whom Gregory
XIII, in his constitution " Ascendente Domino," May 25,
1584* declared that the simple vows taken by the scho-
X35
>Ie
/■"* ^ lrt|A Original from
UNIVERSITY OF WISCONSIN
136 MARRIAGE LAW
lastics after two years' novitiate have the same invalidat-
ing effect as if they were solemn.1
The Code distinguishes five different vows. But it
would be difficult to establish a real distinction between
the vow of virginity and the vow of perfect chastity.
The object of the vow of virginity is the integrity of the
body, and though it may be taken for the specific purpose
of obtaining the aureole promised to virgins," bodily
integrity without perfect chastity is not easily conceivable.
We are aware that internal acts are distinct from ex-
ternal acts and that while merely internal acts against
chastity may not destroy the integrity of the body, perfect
chastity includes both internal and external acts and
therefore also the vow of virginity. It is not surprising,
therefore, that the Decretals never expressly mention the
vow of virginity, but only the simple vow of chastity or
not marrying. We would not, however, deny that the
vow of chastity may be taken after virginity has been
lost. For instance, a person once married may make the
vow of chastity ; but whether it may really be called per-
fect chastity, if the marriage rights had been made use
of, is another question. Canonists generally allege only
four species to the exclusion of the vow of virginity.
EC
In our commentary we shall include the vow of virginity
in that of perfect chastity or celibacy.8
i. The Simple Vow of Perfect Chastity, whether abso-
lute or conditional, prohibits marriage, because marriage
is opposed to the object of perfect chastity. On the other
hand, a promise made to God to observe chastity requires
1 Simple religious vows had been * Wtrnr, ;. c, IV, Vol. II, n. 564,
unheard of up to that time, and in p. 437. justly observes that the dis-
order to protect the Society of tinction between the vow of celi-
Jesus against attacks the Pope U- bacy and that of virginity has little
sued this Constitution. practical value and the latter differs
2 Cfr. Apoc. 14, 4; Putter, Com- from the former only in regard to
m4nt., p. 161. the first opxs camale.
§le
% ,1,., Original from
UNIVERSITY OF WISCONSIN
a
N
■
CANON 1058 137
that all danger and proximate occasion of breaking the
vow be removed. Now marriage would enhance the
danger and render either the vow or the marriage rights
illusory. Therefore the vow of perfect chastity and mar-
riage exclude each other. However, as the Church ac-
cepts this vow only as simple, not irrevocable, which
would imply full surrender of one's self, it does not render
marriage invalid.4
2. The Vow of Celibacy is diametrically, though only
contradictorily, opposed to marriage and renders the latter
illicif ; for although this vow is opposed to marriage, it
does not imply that the right to one's body has been com-
pletely given up; it has merely been suspended.
3. The Vow of Receiving Major Orders, by a positive
law of the Church,8 renders marriage illicit because by it
one would take upon himself a state of life which, ac-
cording to the same law, is incompatible with the state of
higher orders, requiring celibacy.
4. The same must be said concerning the Vow of em-
bracing the Religious State, although this state not only
by positive but also by natural law is incompatible with
marriage. By religious state must be understood, ac-
cording to our Code, every religious institute with solemn
or simple, temporary or perpetual vows, or, in other
words, every organization whose members pronounce the
three religious vows and live a common life.
The effect of these vows is, therefore, generally speak-
ing, to render marriage grievously illicit. In particular
these differences between the single vows may be noticed :
( 1 ) The vow of perfect chastity, if not dispensed from,
retains its force even in the married state, as far as
compatible with the rights of the other party.8 Hence
« Sanchez, I. c, I. VIII, dtap. !i, s Cc. 1, 3, X, IV, 6.
11. 4; Feije, /. c, 0. 559, p. 436; • One who, knowing of the vow,
Werax, /. c. IV, Vol. IT, n. $66. would marry fiich a peraon, would
jle
(~* -» v J„ Original from
UNIVERSITY OF WISCONSIN
138 MARRIAGE LAW
a person bound by the vow of chastity is not allowed to
demand the debit um eoniugale, though he may render it at
the demand of his partner. Yet no obligation attaches to
the vow which would compel the person bound by it to
enter a religious order, if possible, for an obligation can-
not be stretched further than the intention of him who
incurs it. And the intention of embracing the religious
life is not included in the vow of chastity.7 Besides, un-
less the vow of chastity is dispensed from, or was condi-
tional, or made for a limited time only, it is not extin-
guished by an illicit marriage and consequently revives
after the dissolution of the marriage tie.
(2) The vow of celibacy is broken by the act of con-
tracting marriage, and therefore we cannot understand
the opinion of some authors ■ who would prohibit one
bound by this vow from contracting a second marriage,
except as far as the moral obligation is concerned. As to
the debitum coniugale, this may be not only rendered, but
also demanded, because the object of the vow was mar-
riage, and nothing else.
(3) The vozu of receiving sacred orders as well as that
of embracing the religious life prohibits the consumma-
tion of marriage, but after consummation the party bound
by the vow is allowed both to render and to demand the
debitum. As long as the marriage is not consummated
the obligation remains, and it revives when the party is
freed from the marriage obligation.0 These effects show
how anomalous is the state of marriage when no dispen-
sation has been obtained from this vow.
commit a grievous sin. Sanchez, 8 Cfr. Feije, /. ft, n. 56a; Wernx,
J. c, I. VII, dwp. 11, n. 11. /. c, IV. Vol. II, n. 566.
7 Sanchez, /. c, I. IX, disp. 34, 0 Feije, /. c, n. 560 f.
n. 3; Feije, L c, n. 550-
oogle
, ,|Y> . Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1058 139
St
DISPENSATION FROM VOWS
First of all it should be noted that of these five vows
Only two are reserved to the Apostolic See, viz., the vow
of perfect and perpetual chastity and the vow of embrac-
ing the religious life with solemn vows, provided these
vows were made absolutely and after the 18th year of
age had been completed.10 A vow is absolute if it has
attached to it no condition as to time or circumstances or
the matter itself. When a condition is attached, the vow
is conditional. Thus it would be a conditional vow were
one to promise : " I will enter such and such an order,
provided it has a monastery in my country, or if I am
found fit for it, and none other." If he is subsequently
received into that order, and dismissed from it, the con-
ditional vow is fulfilled, and no dispensation is needed to
enable him to marry. If a secular Tertiary of the Fran-
ciscan Order would imagine that his profession involved
perfect and perpetual chastity, the vow would be incom-
plete and no dispensation would be required.11 For the
two vows reserved to the Holy See special faculties are
needed. If they are private and secret, they fall under
the jurisdiction of the S. Poenitentiaria ; as the faculties
granted for such cases are not revoked by the decree of
April 25, 1918, Ordinaries may continue to use and sub-
delegate them to their clergy. The confessor in the act
of sacramental confession, or the pastor outside the con-
fessional but for the internal forum only, (we suppose
the impediment to be occult, as it generally is) must im-
pose other good works and monthly confession, for there
is question here rather of a commutation than of a pure
dispensation.12 The works of penance enjoined should
be adapted to the condition of the party as well as pro-
Q
-"■
10 Can. 1309. ia Putxer, f. c, p. 162 f.
11 Cfr. Leitncr, I. c, p. 344.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
140 MARRIAGE LAW
portionate to the reasons for which the dispensation is
granted. These reasons may arise from the imperfect
act, the vow itself (rashness, ignorance, mental depres-
sion), moral and physical weakness, and family circum-
stances.18 Let it be added, however, that a dispensation
for one marriage does not imply a dispensation for sev-
eral marriages ; a new dispensation is required for each.
A dispensation from the vow of entering a religious or-
der or congregation, if given for the sole purpose of
enabling the subject to remain in the world, does not in-
clude permission to contract marriage.14 The vows of
celibacy and znrginity and that of receiving holy orders
are not reserved, and may therefore be dispensed from
by the Ordinary in virtue of his ordinary power, which
he may communicate to others. If a dispensation is
granted, the obligation ceases entirely and forever, and
hence it may be supposed to be given for more than one
marriage.
LEGAL ADOPTION
E
Can. 1059
In iis regionibus ubi lege civili legalis cognatio, ex
adoptione orta, nuptias reddit illicitae, iure quoque ca-
nonico matrimonium illicitum est.
Q
The Code twice mentions adoption as an impediment to
marriage ; once in this canon, and again in can. 1080, thus
introducing a distinction between legal adoption simply
as an impedient and as an invalidating impediment. Our
can. 1059 states that in countries where relationship aris-
is We hold with Sanche* {L c, obliged to answer in the affirma-
1. VII, disp. 11. 11. 1a) thai if a five, for this U (he teaching of the
penitent would ask hia paator or Church and requires no mental rt-
confeasor whether a marriage con* atriction.
traded under such a vow ia valid. 14 Wernz, I. c, IV. VoL II, n.
the latter would be entitled and 570 f.; p. 43a.
jle
v ,|r. Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 1060 141
ing from legal adoption is a prohibitive impediment by
civil law, it is so also by Canon Law. This is an instance
of what is called " canonization " of a civil law by the
Church. For further explanation we refer the reader to
can. 1080, which treats legal adoption as a diriment im-
pediment.
MIXED MARRIAGES
The distinction between the impediments of disparity
of worship and mixed religion was hardly known until
Huguccio, in his gloss to the Decree of Gratian,15 and
especially St. Thomas,16 commenced to distinguish be-
tween the two and assigned a prohibitive character to the
latter. The so-called Reformation of the XVIth century
led to a vast increase in the number of M mixed " mar-
riages, though the Church always resisted such unions, as
many papal constitutions and decisions of the Roman
Court prove.17
mixed religion
Can. 1060
Scvcrissimc Ecclesia ubique prohibet nc matrimo-
nium ineatur inter duas personas baptizatas, quarum
altera sit catholica, altera vero sectae haereticae seu
schismaticae adscripts ; quod si adsit perversionis peri-
culum coniugis cathoiici et prolis. coniugium etiam
lege divina vetatur.
The Church most severely forbids everywhere mar-
riages between two baptized persons, one of whom is a
Catholic and the other a member of a heretical or schis-
16 Ad c 16, C. 28, q. 1, l. V. IT See the quotations in Card.
haerencis. Gaaparri'i edition of the Code.
l« Lib. IV. DUt 30. q. 1. art. 1.
*1 5-
jle
f** ^ v J„ Original from
UNIVERSITY OF WISCONSIN
142 MARRIAGE LAW
matic sect; if there is danger of perversion for the
Catholic party or the offspring, such a union is forbidden
also by divine law.
Here we have a concise statement of the reasons why
the Church forbids mixed marriages.
( I ) These reasons are found in a well-known instruc-
tion of Cardinal Antonelli, published in 1858, and in an
instruction issued to the Oriental bishops by the Holy
Office in 1888." They are the following:
(a) The detestable communion in sacred matters
(Hagitiosa in dknnis cotnmunio), which results in such
cases from the sacramental character of marriage and
which is strictly forbidden ;
(b) The danger of perversion to the Catholic party
arising from indifference in religious matters;
(c) The irreligious or at least careless education of
children brought up in the atmosphere of religious indif-
ference.
Since the Church claims to be the true Church of
Christ, and since the Catholic faith is divine, any wilful
and unwarranted exposure of it to the danger of loss
is forbidden by divine and, we may add, also by the
natural law. For the natural law commands us to strive
for our last end by employing means proportionate to it.
In the supernatural order this end can be attained only by
divine faith. Hence a natural and a supernatural premise
compel the conclusion that to endanger the bulwark of
salvation needlessly is contrary to divine and to the
natural law.10 It is not necessary to prove the evil effects
of indiscriminately contracted mixed marriages by statis-
tics. The Code admits that they are real.
Q
"■
18 Sec. Status. Nov., 1858; S. O., 19 Sec. Status, March 27, 1830
Dec. i2, 1888 (Coll. P. F.f no. 1169, (Colt. P. F.t Vol. I, p. 47*).
1696); Leo XIII "Arcanum/' Feb.
10, 1880.
jle
I , Original from
UNIVERSITY OF WISCONSIN
CANON 1060
*43
(2) The impediment of mixed religion is merely pro-
hibitive and was established by ecclesiastical law. But
there is no contradiction between the general prohibition
which arises from the natural and from divine law on the
one hand, and the positive prohibition of the Church on
the other. For the general obligation of avoiding all dan-
ger to the faith and to salvation is not neutralized by the
positive sanction of the Church, but this sanction is merely
a juridical formulation of the divine law. The Church
in thus formulating that law did not mean to dispense
from the precautions required by the natural and by
divine law. Hence the positive law only is dispensed
from, whilst the obligations attendant upon the natural
and divine law remain.™ We might therefore call the
dispensation from this impediment a conditional one, i. e.,
dependent upon the fulfillment of the required conditions.
But we must not be understood as saying that a dispensa-
tion becomes valid only when the conditions are fulfilled.
No, the dispensation is valid from the date when it is
granted, but the obligation of complying with the condi-
tions always remains, and no human power can remove
it. From this again it appears how seriously the Church
regards mixed marriages.
(3) The extent of this impediment is determined by the
difference of religion, which regards Christian denomina-
tions only. The foundation is Baptism, presumed to be
valid. And herein lies the specific distinction between
JOWernz (/. c, IV, Vol. II, n.
583. p. 441) appropriately says:
" Quodsi prohibitio legis divinat in
easu particulars non est tub late, a
nullo potestate humana licita et
voiida dispensation super impedi-
menta mixtae relieionis, quatenus
nititur iure divino, concedi potest.
At si prokibitio legis divinae in
casibus particularibus cessavit, ii
scriptores modum excesserunt, qui
vel ipsi Romano pontitici a manente
lege ecctesiastica contra mixta ma-
trimonia absolute et universaliter
lata potestatem dispensandi nega-
nint. Eo enim in casu manet sola
lex ecctesiastica, super qua ex
iusta causa certe licite et valide ab
Ecclesia dispensari potest,"
oogle
Original from
UNIVERSITY OF WISCONSIN
144 MARRIAGE LAW
this impediment and that of disparity of worship. Bap-
tism also furnishes the reason why these two impediments
are classified differently, that of mixed religion belonging
to the forbidding, whereas disparity of cult is num-
bered among the diriment impediments. Since by bap-
tism one radically becomes a subject of the Church,81 bap-
tized non-Catholics are not outside her pale. Further-
more, as Christian denominations are now scattered
broadcast everywhere, it would be a difficult matter to set
up a diriment impediment, or as it were, an insurmount-
able barrier between Catholics and Protestants.22 But a
Catholic may not on that account licitly marry a member
of a heretical or schismatic sect
Who are heretics? A declaration of the Holy Office u
with regard to mixed marriages in Holland may help us
to understand the term better. It says that all those are
called heretics who, though baptized by Catholics, were
educated in heresy before they were seven years of age;
also all those educated by heretics, although not thor-
oughly imbued with heretical doctrines; likewise those
who have fallen into the hands of heretics and adhere to
their tenets ; those who have apostatized from the Catho-
lic faith and joined a heretical sect; and those born of and
baptized by heretics who have grown up without making
formal profession of heresy or without any religion at all.
However it must not be overlooked that our text says:
" sectae haereticae adscripta," i. c, the non-Catholic party
must be a member of a heretical sect, or at least must have
adhered to a sect some time previously to the marriage.
The Holy Office has expressly declared that those can not
be regarded as heretics who have rejected the Catholic
D
Si Trid., leu. 7, can. 7, de Nov. 4, 1741; S. 0., Dec. ia# 1888
baft. (Coll. P. F., n. 1696 ad 1).
rsBened. XIV, " Matrimonia." 2s S. 0., April 6, 1859 (Coll..
n. 1 174).
jle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1060
145
faith but have not joined a false religion or heretical
sect," and that Freemasons who belong to a condemned
sect are not to be classified as heretics.
Schismatics are all those who have separated themselves
from the unity of the Church and are certainly to be con-
sidered heretics.20 Pure schism now-a-days is almost im-
possible. The extant decisions on that point have refer-
ence to Oriental schismatics, but they apply to all who
have heretical tendencies, whoever they may be."
What about doubtful Baptism? The Holy Office has
declared more than once that a doubtful Baptism must be
considered valid with regard to marriage. The rules to
be followed in such cases are the following:
(a) If the ritual of the heretical sect prescribes Bap-
tism, but without the required matter and form, each
single case must be treated on its own merits.
(b) If the resp. sect baptizes validly, according to its
ritual, the Baptism is to be considered valid. If there is
room for doubt, even in the first mentioned case, the Bap-
tism must be regarded as valid in reference to marriage.
(c) If it is evident from actual custom that Baptism
in a sect is invalid, then marriage, too, is invalid if con-
tracted between one thus invalidly baptized and a Cath-
olic, because of the impediment of disparity of cult."
2* S. O., Jan. 30, 1867 (Coll., n.
1300).
3S Cfr. can. 1325, 8 a: One who
refuses to be subject to the Roman
Pontiff or to communicate with the
memben of the Church subject to
him, is a schismatic. A stubborn
refusal of obedience to the Roman
Pontiff may practically coexist
with the Catholic faith, hut It is
next to impossible to imagine a
theoretical schismatic without a
taint of heresy.
a*S. O., Jan. 3, 1871; Dec aa,
1888; S. C P. F.. Feb. 18. 1783
(Coll., nn. 1362, 1696, 562).
2T S. O., Now. 17, 1830; Sept, 9.
1868 (Coll., nn. 1st, 1334): " g*n-
mtim loquendo, ut thriitioni
habendi sunt it de quibus iubitatnr
an valide baptisati futrint." S. O.,
Dec., 1872 (Coll., n. 1392) :
" Utrum baptitmut dubius censen-
dus sit tialidus in ordins ed motri-
montum etiam in eo sensu, quod
invalidum sit matrimonium inttr
haertticum dubit baptisatum tt in-
ndeltm propttt impedimtntum dis-
>Ie
Original from
UNIVERSITY OF WISCONSIN
■"■
paritatis cultui." S. C. respondit: R. ad i. Matrimonium esse ho-
"Affirmative." S. O., July 14, 1880 bcndum uti invalidum ob imped*'
§le
f~* -* v J„ Original from
UNIVERSITY OF WISCONSIN
146 MARRIAGE LAW
St
Of special interest for our country is the answer of the
Holy Office to the Bishop of Savannah.* The first point
is nothing else but a reaffirmation of the principle stated
above, namely, that the presumption is in favor of the
validity of Baptism with regard to marriage. But the
bishop wished to know further when the presumption
of validity might be duly applied. The answer was:
(a) If the parents belong to a sect which rejects Baptism,
the latter is not to be presumed; (/?) The same holds good
if the sect rejects infant Baptism (as, e. g., the Baptists
do), (y) Also if the parents belong to no sect whatever,
■a 01* a
but are absolutely indifferent in religious matters. (8)
If, on the other hand, the parents belong to a sect that
requires Baptism and generally administers it, and if
these parents were zealous in their religion, Baptism may
be presumed, (e) If only one of the parents belongs to
a sect that prescribes and administers Baptism, and this
one, whether father or mother, was the chief educator of
the party in question, Baptism is to be presumed, provided
the other parent, who was less zealous in religious ob-
servance, did not positively object. (£) If no presump-
tion is admissible, the case must be examined for itself
and, if the doubt remains, reported to the Holy See.
After having stated the reasons for the Church's severe
prohibition of mixed marriages and explained the nature
and extent of the impediment, the Code lays down the
conditions under which such marriages may be permitted.
— _., r_. _,. — — _.
{Coll., n. 1536): mentum culttis disparitatis.
I. Matrimonium dubit bapticati Ad *. Matrimonium habendum
Cum not* bopti-ota estne validumf esse ut invalid um ob impedimentum
it. Matrimonium duorum dubit consanguinitotis vel afUnitatis.
baptiaatorum estne validum etiamsi * S. 0., Aug. I, 1883 {Coll., n.
smt consonguinei, afHnes, etc. 1605).
CANON 1061 147
conditions under which mixed marriages
may be permitted
Can. 1061
§ 1. Ecclesia super impedimenta mixtae religionis
non dispensat, nisi:
i,° Urgeant iustae ac graves causae;
a.0 Cautionem praes titer it coniux acatholicus de
amovendo a coniuge catholico perversionis periculo,
et uterque coniux de universa prole catholice tantum
baptizanda et educanda ;
3.° Mora lis habeatur certitudo de cautionum imple-
mento.
§ a. Cautiones regulariter in scriptis exigantur.
§ 1. The Church does not dispense from the impedi-
ment of mixed religion, unless:
l.° There be just and weighty reasons;
2.° The non-Catholic party guarantees to remove the
danger of perversion from the Catholic party, and both
promise to baptize and educate all their children in the
Catholic faith;
a.
3.0 There be a moral certainty that the promises will
be kept.
§ 2. The promises must, as a rule, be demanded in writ-
mg.
Concerning the reasons we refer to can. 1054. Any
of the reasons there stated will suffice for obtaining a dis-
pensation. Besides, the following may be mentioned as
admissible: if the projected marriage be the only means
by which the Catholic education of children born of a
former marriage can be safeguarded ; danger of civil
marriage or complete apostasy from the faith; if grievous
scandal can only be repaired by a mixed marriage.28
28 Lcitner, I. c, p. J50.
"■
>Ie
j , Original from
UNIVERSITY OF WISCONSIN
148 MARRIAGE LAW
As to the guarantees, they have always been insisted
upon and, as was said above, a dispensation from them
is impossible, because it would violate the natural and
divine law.38
It may surprise the reader that tzco promises are now
considered as sufficient — removal of the danger of per-
version, and the Catholic education of the children. This
provision marks a stage in the advance of juridical pre-
cision. For these two guarantees almost entirely depend
on human factors and may be effected by legal means,
unless the civil law offers an obstacle, as is the case in
some European countries where boys must follow the
religion of the father, and girls that of the mother.
This is a foolish and unjust law, which, we are glad to
say, has no counterpart in America.80 The two conditions
mentioned are strictly juridico-canonical, whereas the
others still mentioned in the litterae reversales 8l have
been relegated to a special canon.
Concerning the manner of demanding these guaran-
tees, the Code says that moral certainty must be obtained
that they will be complied with, and hence they should,
as a rule, be given in writing. Formerly the parties
had to go before the officials of the diocesan court or be-
fore the pastor and swear and subscribe to the formula ;
the pastor then had to forward the papers to the chancery
office." Now moral certainty as to the fulfillment of
the promises is considered sufficient, and this may be
based upon the known character of the parties. But if
advisable, the bishop or pastor may demand an oath of
» S. C, June 3, 1871 ad 6; complained; Prussia maintained
Dec. io, 190a {Coll., no, 136a, the tame attitude, and Baden alto,
2155). 81 Hence these might be remod-
to Switzerland had a law to this died.
effect in 1863, of which the Holy is S. 0., June 6, 1879 [Coll., n.
Office (Jan. ai, 1863, Coll., n. ia6j) 15*1).
.'Ie
j/~* ^ ^ ,|,., Original from
UNIVERSITY OF WISCONSIN
CANON 1063 149
them.81 Broadly speaking, the promises must be made
in the form of a contract or agreement which offers a
moral guarantee that its stipulations will be fulfilled."
We may add that these promises must be demanded also
when there is danger of death."
conversion of the non-catholic party
Can. 1062
Coniux catholicus obligatione tenetur conversionem
coniugis acatholici prudenter curandi.
The Catholic consort is bound prudently to procure the
conversion of the non-Catholic party.
This obligation is based upon charity. It should be
fulfilled prudently, says the Code ; and hence not by force
or threats. Faith is a free gift of God.
non-catholic ministers excluded
Can. 1063
§ 1. Etsi ab Ecclesia obtenta sit dispensatio super
impedimento mixtae religionis, coniuges nequcunt, vel
ante vel post matrimonium coram Ecclesia inttum,
adire quoque, sive per se sive per procuratorem, mini-
strum acatholicum uti sacris addictum, ad matrimo-
nialem consensum praestandum vel renovandum.
§a. Si parochus certe noverit sponsos hanc legem
violaturos esse vel iam violasse, eorum matrimonio ne
assistat, nisi ex gravissimis causis, remoto scandalo et
consulto prius Ordinario.
§ 3. Non improbatur tamen quod, lege civili iubente,
«S. 0.. Feb. 17, 1875 (Coll., a. 85 S. O., March 18, 1891 {Coil.,
H33). »• 1750).
»*S. 0.. June 30. 1843 (Coll.. n.
95°>-
jle
f~* ^ ■. %\s* Original from
UNIVERSITY OF WISCONSIN
p
150 MARRIAGE LAW
coniuges se sistant ctiam coram minis tro acatholico,
officialis civilis tantuxn muncre fungente, idque ad ac-
tum civilem dumtaxat explendum, cffcctuum civilium
gratia.
§ i. Even when a dispensation from the impediment of
mixed religion has been given by the Church, the parties
can not, either before or after their marriage before the
Church, go, whether in person or by proxy, to a non-
Catholic minister in the exercise of his office, for the
purpose of giving or renewing the matrimonial consent.
§ 2. If the pastor knows for certain that the parties are
about to violate this law, or have violated it, he shall
not assist at their marriage, except for very weighty rea-
sons, all danger of scandal being removed and the Ordi-
nary having been consulted.
§ 3. It is not, however, forbidden for the parties to
present themselves before a non-Catholic minister acting
as a civil magistrate, when the civil law requires it, solely
to comply with a civil formality and for the sake of civil
effects.
Tne distinction 3a between § 1 and § 3 consists in the
following: If the parties were to approach a non-Cath-
olic minister, as such, and to ask and obtain from him
the nuptial blessing, the Catholic party would acknowl-
edge him as a lawful minister of Christ, and approve of
and profess a heretical rite. This cannot be allowed be-
cause it would be an active participation in heretical func-
tions, which is per se a grievous sin. But if the parties
present themselves before a non-Catholic minister acting
as a civil magistrate, and who does not mean to confer a
blessing, the Catholic party is free from guilt, if the cere-
MCfr. Benedict XIV, " Redd it at Dioec, VI, 7; S. 0., Jan. 29, 1817
sunt," Sept. 17, 1746 ; De Syn. (Coll. 717).
►ogle
k ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1063 151
mony is gone through merely to observe the civil law and
to avoid greater evils."
- Attention must be drawn to the expression, "ad
matrimonial em consensum praestandum vcl renovandum."
This implies that the parties really have the intention of
giving or renewing the matrimonial consent, or, in other
words, desire to celebrate their marriage before a non-
Catholic minister, as such, at least by the external act,
although the internal consent may be absent in the Cath-
olic party, or may be given inadvertently, or reluctantly,
or out of mere courtesy. The reason of this strict pro-
hibition is the inevitable participation in sacred things and
the external approval of heretical rites to the scandal of
Catholics.18
Note furthermore : " sive per se sive per procuratorem."
The matrimonial consent may be given cither personally
or by proxy.30 If given by proxy, rules 68 and 72 in 6°
must be observed and hence the guilty party is the one
that acts through the proctor, although the latter, too,
commits a grievous sin if he is a Catholic and realizes his
guilt.40
a.
On the other hand, both guilt and prohibition are absent
if § 3 is verified. For in that case a merely civil act is
performed in order to obtain civil effects. Thus, for
instance, if a preacher would act merely as justice of the
peace, being acknowledged as such, no matter how unctu-
ous an exhortation he might deliver on the occasion, the
87 Cfr. Inttrvctio S. 0. ad Ep. proxy. The terra non-Catholic
Osnabrvck., Feb. 17, 1864 (Co//., n. minister includes any minister of
1347). from which lect. 3 of our any heretical or schismatic denomi-
canon is borrowed almost verbally. nation, which as such is opposed to,
3»S. 0-, ibid.. Dec. 12, 1888 ad or rejected by. the Catholic Church.
7 {Coll., n. 1696). This seems to be based upon Pius
••Cfr. can. 1088. IX'i Const., " Apastelica* Stdis/'
40 The censure mentioned In can. 1869, I, 3.
1319 would not be incurred by the
".
§le
{ ~ ^ ^ ,l,» Original from
UNIVERSITY OF WISCONSIN
152 MARRIAGE LAW
ceremony would be a purely civil one. If the minister is
not the only man in town who may act as official, the par-
ties, after having obtained a duly issued license, may cer-
tainly be suspected of approaching him as a minister in
sacris. The same holds good in a higher degree if in a
town or city there are several different denominations,
and the non-Catholic party chooses the minister of his own
creed. Neither does it matter whether he is dressed as
a clergyman or where he receives them, in church or in
his parlor.
§ 2 is taken from the instruction of the Holy Office
to the Bishop of Osnabnick, which says: If the pastor
is asked by the parties concerning their intention of going
to a preacher, or if he knows for certain that they will
go to him, he is not allowed to remain silent, but must
warn them of the grievous sin they are about to commit.
However, to avoid greater evils, if the pastor is not asked
whether they may go to a non-Catholic minister and no
explicit declaration is made of their purpose, although
he foresees their going thither and is aware that an ad-
monition would do more harm than good, he may be
silent, provided the scandal is repaired and the required
promises are duly made." Our text says that in both
cases, viz.: when the .parties intend to go or have already
gone to the non-Catholic minister, the pastor must seek
to remove the scandal and then consult the Ordinary
as to what is to be done.
How the scandal is to be removed is not indicated in
the said instruction. Evidently it must be done in such a
way that the Catholic people are satisfied. Thus a public
apology made before the congregation, or printed in a
Catholic newspaper, or a public denunciation, if the par-
ties went to the preacher after the Catholic wedding,
*i S. O., Feb. 17, 1864 {Coll., n. U47).
■
Go >gle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 1064 153
would repair the scandal. If they went to the minister
before the Catholic wedding, the most efficacious way of
removing the scandal would be a flat refusal of assistance
until public penance is accepted.
DUTIES OF PASTORS
■
9
Can. 1064
Ordinarii aliique animarum pastores :
i.° Fideles a mix t is nuptiis, quantum possunt, abs-
terreant ;
2.0 Si eas impedire non valeant, omni studio curent
nc contra Dei et Ecclcsiac leges contrahantur ;
3.0 Mixtis nuptiis celebratis sive in proprio sivc in
alieno territorio, sedulo invigilent ut coniuges promis-
siones factas fideliter impleant ;
4.0 Assistentes matrimonio servent praescriptum
can. 1 103.
Ordinaries and other pastors of souls shall :
i.° Deter the faithful from contracting mixed mar-
riages as much as they can ;
2.0 If they cannot prevent them, they shall take the
greatest possible care that such marriages are celebrated
according to the laws of God and the Church ;
3.0 After such a marriage has been contracted, either
in their own territory or outside of it, they shall watch
over the faithful fulfillment of the promises made ;
4.0 In assisting at such marriages they shall follow the
regulations of can. 1x02.
Reference may here be made to the Ilnd and Illrd
Plenary Councils of Baltimore. The former (n. 336)
admonishes pastors to instruct the faithful at least once
a year on the evils arising from mixed marriages. The
latter (n. 133) advises frequent instruction, uniform prac-
*Ie
j , Original from
UNIVERSITY OF WISCONSIN
154 MARRIAGE LAW
ticc in proceeding in such cases, an accurate examination
of the reasons alleged to obtain a dispensation, and finally
careful watching over the fulfilment of the promises.
The Councils might profitably have added a little reminder
to Ordinaries that they should examine the reasons
alleged as to their canonical weight and accompanying
circumstances. We know from experience that where
local circumstances are such as to permit a dispensation
on account of the small number of Catholics, God gives
special graces, whereas those who contract a mixed mar-
riage frivolously have to go without such help.
"a
marriages with indifferentists discouraged
Can. 1065
§ 1. Absterreantur quoque fidcles a matrimonio con-
trahendo cum iis qui notorie aut catholicam fidem
abieccrunt, ctsi ad sectam acatholicam non transierint,
aut societatibus ab Ecclesia damnatis adscript! sunt
§ 2. Parochus praedictis nuptiis ne assistat, nisi con-
sulto Ordinario, qui inspectis omnibus rei adiunctis,
ci permittere potent ut matrimonio intersit, dummodo
urgeat gravis causa et pro suo prudenti arbitrio Ordi-
narius iudicet satis cautum esse catholicae education!
universae prolis et remotioni periculi perversionis al-
terius coniugis.
Having laid down the rules for mixed marriages, the
Code now turns to marriages zvith unbelievers and Free-
masons and, in can. 1066, with public sinners and persons
under ecclesiastical censure. The faithful, it says, should
be deterred from marrying those who have notoriously
renounced the Catholic faith, without, however, joining a
non-Catholic sect, or with those who are notoriously af-
filiated with societies condemned by the Church. The
Gj ^ Original from
OO^IL UNIVERSITY 0FWI5C0NSIN
CANON 1065 155
pastor shall not assist at such marriages, except after con-
sulting the Ordinary, who, after due consideration of all
the circumstances of the case, may permit the pastor to
assist, provided there be a weighty reason and sufficient
provision be made for the Catholic education of all the
children.
The reason for this precaution lies in the danger of
perversion of the Catholic party and of the offspring of
the marriage. Hence it may be truly said that such
unions are forbidden by the natural and by divine law,
even though the Church does not prohibit them under
penalty of an impediment. But since this class of per-
sons are a real menace to the Church and to society, and
at the same time only too ready to attack the faithful, it
is impossible to treat them more leniently than is compati-
ble with her fundamental principles. Every pastor
should endeavor, by public and private exhortations, by
prudent severity in the confessional, and by appealing to
the parents of the Catholic party, to prevent such unions,
from which no happy results can be expected. If his
endeavors prove vain, he must report to the Ordinary.4*
The latter must first and above all ascertain whether the
apostasy of the party is notorious, i. e., so well known that
it cannot be concealed by any artifice.40 If a man who
no longer attends church is known to the whole com-
munity as an unbeliever who ridicules the Church, or if
he has written publicly against the Catholic faith, he is a
notorious apostate. The same rule must be applied to
Freemasons, although in their case secrecy may cause
some difficulty. But they have their meetings, balls, en-
tertainments, badges and papers. Besides the identity of
«l S. O., Aug. 1, 1855; Aug. ai, " nulloque iuris ju/Fragio excusari
1861; Jan. 30, 1867; July 31, 1878 possit," is implicitly verified in our
(Coll., nn. 11 16, 1219, 1300, 1495). case, for neither divine nor cccle-
48 Can. 2107. a: the addition siajtical law excuses an apostate.
jle
% ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
156 MARRIAGE LAW
their leaders and that of active, influential members can
scarcely remain hidden, even if there were no lists of
members. But it is not sufficient that they be merely
notorious, they must also belong to a condemned sect, i. e.,
a society which aims at the subversion of ecclesiastical or
civil authority, no matter whether its members are bound
by secrecy or not.44 All such societies are strictly con-
demned. To this class belong, in our country, the lodges
of the Oriental Rite. The " Independent Order of Good
Templars," «• the " Odd Fellows," the " Sons of Tem-
perance " and the " Knights of Pythias " are forbidden to
Catholics but not explicitly declared to be under ecclesi-
astical censure,4- and hence cannot be called condemned
societies in the strict sense of the term.
When the Ordinary has informed himself as to the
character of the non-Catholic party, he shall weigh the
circumstances of the case, the influence of the apostate
or Freemason, and of both parties and their families, and
take into consideration the condition of the parish, the
danger of probable scandal, and the consequences likely
to follow. Before granting permission he must be
morally certain that all the children will be baptized and
brought up in the Catholic faith and that there is no
danger that the Catholic party will be hindered in the
practice of his or her religion. These guarantees must
by all means be obtained, because they are demanded by
divine law ; but no writing or oath is required, a serious
promise will suffice. Finally there must be grave reasons
in order to permit assistance, and these may be either the
canonical ones (can. 1054) or others that may claim the
Ordinary's consent, for instance, danger of a purely civil
44 S. O., Acc- 5. 1846; S. C, P. timam potestatem macKinautur."
F., Sept. 34. 1867 ("Coll., n. 1330); 46 S. O,, Aug. 9. 1893 (Coll., n.
S- O., Umy 10, 1884 »d 3 (Cell, n. 1845)
1615): "contra Ecclesiam vet legi- 49 Putzer, Comment., p. 235.
oogle
*f~* ^ v ,|,, Original from
UNIVERSITY OF WISCONSIN
—
a
N
■
CANON 1066 157
marriage and subsequent concubinage, danger to the
Church at large or in the particular territory in question,
probable hope of conversion, etc.
After all these precautions have been taken, the Ordi-
nary may permit the pastor to be present at the marriage
(ut parochus matrimonio intersit).47 How far the assist-
ance may go depends on the circumstances of the case.
A directive norm is found in can. 1102, unless the Ordi-
nary should deem it necessary to restrict the " assistance "
to what is absolutely necessary.4"
public sin and censure
Can. 1066
a
Si publicus peccator aut censura notorie innodatus
prius ad sacramentalcm confessionem accedere aut cum
Ecclesia reconciliari recusaverit, parochus eius matri-
monio ne assistat, nisi gravis urgeat causa, de qua, si
fieri possit, consulat Ordinarium.
This canon may be regarded as supplementing the pre-
vious one and concerns a case less detrimental to the
public interest of the Church. It treats of public sinners
and persons notoriously under censure. If such persons
wish to get married, and refuse to go to confession or
to be reconciled to the Church before the marriage, the
pastor is not allowed to assist thereat, except for grave
and urgent reasons, about which he shall, if possible, con-
sult the Ordinary.
Public sinners, as distinguished from the others men-
47 S. O., July 5, 1878 (CoU., n. strictly required, and it appc&rg
140s): "permittrre potent, ut paro- that assistance at such marriages is
chus matrimonio passive intersit, the same as at mixed marriages.
idrit absque betttdiction*. alioeus 4ft S O Feb. 1, 1883 {Coll., n
ritu ecdesiostico, tanquom testis I59>): " omnino excludtSur celtbra-
outhoHeatrilis." Of course, reedy- tio sacriAcii Missae."
tag and demanding the consent hi
_;:
...
jle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
158 MARRIAGE LAW
tioned, are persons who, through their own fault, are
ignorant of the most necessary Christian doctrines, or _- .
refuse to comply with their duties as Catholics, especially
that of receiving the sacraments and assisting at divine
service, even though they may retain the faith.49
Notoriously under censure are those who have been
excommunicated by name or denounced by the ecclesiasti-
cal judge, or whose censures are known to the people.80
Stress is laid upon publicity, because if the pastor would
know of a person's guilt or censure only from confession,
he could not refuse his assistance, since this is a public
act. But if the sinful conduct or censure is notorious,
then what? The pastor should endeavor to bring such
public sinners to their senses in the confessional, or by
reconciliation, if censures have been incurred. In the
latter case, therefore, absolution is required, and if
the necessary faculties are wanting, recourse to the
Ordinary is inevitable. If the parties both refuse,
the pastor may, time permitting, report to the bishop.
But if the case is urgent, and reasons are given, he
may assist. St. Alphonsus is more rigoristic, yet
he permits assistance if there be danger of death, or
great evils affecting the community, or if the pastor
foresees that the parties would continue to lead a sinful
life."
The text does not state what kind of assistance is to be
granted, but as the quotations given by Card. Gasparri
refer to the Freemasons, what has been said under the
preceding canon, may also be applied here.
Since a marriage contracted against the prohibition of
the Church is only illicit, not invalid, cases may arise
-
40 Dc Smet, /. c, p. 130. phonsus, I. VI, tr. 1, cap. a, n. 54);
bo Cmn. 2197. Bcned. XIV, De Syn. Diotc, VIII,
Bi S. Pocoit., Dec. 10, 1865 (Coll., c 14.
n. iaos, which refers to St. Al-
Q
>Ic
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1066 159
which require straightening. How is that to be done?
First be it noted that the case of a merely illicit mar-
riage is comparatively rare. A marriage not contracted
in the presence of the pastor (priest) and two witnesses
is not merely illicit, but also invalid. If it is contracted
properly, no unlawfulness attaches to it. However, it
may happen, through ignorance on the part of the pastor,
or by surprise, or in consequence of stubborn refusal of
the two conditions or promises,02 that a marriage is con-
tracted in the prescribed form, yet without a dispensa-
tion, and therefore unlawfully. In that case the mode
of procedure would be the following:
(1) If the parties were married in church, and not
before a non-Catholic minister as such (qua sacris addic-
tus), the pastor shall instruct them concerning the sin
they have committed and the strict obligation of comply-
ing with the required conditions, especially that concern-
ing the Catholic education of their offspring, and assure
them that any contrary promises are not binding, because
unjust. If they acknowledge the wrong they have done,
and show signs of repentance, they may be admitted to
the sacraments, with the imposition of a wholesome
penance.53 And this is all that may or should be done in
such a case; for the marriage is valid, and the dispensa-
tion cannot affect its lawfulness after it has been con-
tracted.
(2) If the parties have been married in church, but
have presented themselves before a non-Catholic minister,
as such (can. 1063), the Catholic party has incurred the
excommunicatio latae sententiae, reserved by law (can.-
23I9. I If a. l) fc the Ordinary. This is the only cen-
a
U The case i» mentioned in a S3 S. O., Jan. 3, 1871 (Coll., n.
decree of the S. O., June 11, iqij 1362). But the two promises mutt
(A. Ap. S., IV, 444). but not be impoied.
quoted by Card. Gaapaxri.
Q
od by GoOgle
j ^ Original fro rn
UNIVERSITY OF WISCONSIN
160 MARRIAGE LAW
sure, none other being mentioned in the Code. Hence
what was formerly said about a reserved case M is now ob-
solete. But the way a pastor must proceed is not entirely
changed. It is as follows:
(a) The pastor must seek to persuade the Catholic
party to repent of his or her fault and deny him or her
the sacraments until they do so.
(b) If there are signs of repentance, he must demand
the two promises, as a rule in writing.
(c) If these promises are sincerely made, he shall
apply the faculty of absolving from the episcopal censure,
or procure the same if he does not yet enjoy it, and im-
pose a wholesome penance. No renewal of consent is
required.
If the penance is to be public, according to the diocesan
statutes or a special injunction of the Ordinary,68 in order
to repair the scandal given, the pastor is not at liberty to
remit it. Nothing else is to be done, because the mar-
riage is supposed to be valid.
(3) If the marriage is invalid because of lack of the
prescribed form — vitio clandestinitatis — the pastor
must refuse the sacraments until the Catholic party re-
pents and makes the two promises, and then obtain a dis-
pensation. Should the parties have given their consent
before a non-Catholic minister, the censure must also be
removed. In that case the procedure would be as fol-
lows:
o
MPutxer, /. cf p. (>$; Leitaer, ihould be imposed publicly. S. O.,
I c, p. 355 *-. who would, of Feb. 17, 1864 (Coll., n. 1247); S.
course, refer to " Apoatolicat O., Aug. 33, 1877 (Coll., n. 1478).
Srdis," 1860, I, 3- If the ceniure wu occult, absolu-
08 There is no doubt that the dio- tion in foro tnttrno suffices. Fur-
cesan statutes or a special order of thcrmore, if the parties did not
the bishop may lawfully impose know of the censure, the latter is
public satisfaction. Besides, It not incurred, provided theirs was
must be noted that, if the censure not ignorantia crassa or affectato.
is known publicly, the absolution Leitner, I. c, p. 358.
■"■
'■-.
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
CANON 1066 161
(a) The litterae reversales or the two promises must
be agreed to, either in writing or orally.
(b) Absolution from censure must be given.
(c) A dispensation from the impediment of mixed re-
ligion must be obtained and applied.
(d) The matrimonial consent must be renewed in the
presence of the pastor and two witnesses.6"
A new difficulty arises if the non-Catholic party refuses
to renew the consent. In that case it would be neces-
sary to revalidate the marriage in radice*1 as explained
in canons 1138-1141. But since our bishops enjoy the
faculties mentioned under can. 1048, according to the
decree of April 25 and Aug. 2, 191 8, recourse to the
Holy See is not required. In case of danger of death
can. 1 143 f. must be followed.
lie S. O., Aug. S3, 1877 {Coll., 67 S. O., Not. aa, 1889 (Coll., n.
n. 1478). «7ai).
oogle
/"" -» vrIL Original from
UNIVERSITY OF WISCONSIN
N
■
CHAPTER IV
DIRIMENT IMPEDIMENTS
I
This chapter enumerates twelve1 impediments which
render a marriage not only illicit, but also invalid. The
Code does not determine which of these belong to the
order of the natural and divine law, and which to the
order of ecclesiastical law. If the reader, therefore, de-
sires a classification, he will have to accept the statement
of authors, who agree more or less on the subject. The
only controversy of any importance concerns the impedi-
ment of consanguinity.
AGE
Can. 1067
§ 1. Vir ante decimum sextum aetatis annum com-
pleturn, mulier ante decimum quartum item comple-
turn, matrimonium validum inire non possunt.
§ 2. Licet matrimonium post praedictam aetatem
contractum validum sit, curent tamen animarum pa-
stores ab eo avertere iuvenes ante aetatem, qua, secun-
dum regionis receptos mores, matrimonium iniri solet.
A boy can not validly contract marriage before he
has completed his sixteenth, and a girl before she has
completed her fourteenth year. Although marriage con-
tracted after the aforesaid age is valid, pastors of souls
1 We *ay tu-elvi, because legal as such by civil law, but doe* not
adoption is an impediment only in affect the Church at large,
countries where it has been set up
102
C' i/xiiL* Original from
iOO^IL UNIVERSITY QFWI5C0NSIN
CANON 1067 163
St
should deter from it young people who have not reached
the age at which, according to the custom of the country,
marriage is usually contracted.
In this formulation the impediment is of merely ec-
clesiastical law, which now demands a higher age than
was formerly required. The Decretals 2 followed the Ro-
man law in reckoning the age. There was a controversy
between the Cassians and the Proculejans, until Justinian
adopted the view of Proculejus, who maintained that
the number of years, fourteen for hoys and twelve for
girls, should be decisive in admitting one to marriage.
The Cassians, on the other hand, held that not only age
but natural capacity for the marital act should be taken
into consideration.3 This double method of determining
the impediment of age is noticeable not only in the early
ecclesiastical legislation,4 and in the Summac of Tancred 5
and Bernardus Papiensis,8 but also in the Decretals
quoted. In fact it remained in vogue until the present.
For the commentators all distinguished between age prop-
erly so called, and mental and physical capacity. It was
an axiom that " malitia supplct aetatetn." Most canon-
ists assumed that, as far as mental ability was concerned,
the impediment rested on the natural law, whilst impo-
tence was not absolute, because it might disappear. In
southern or warmer climates maturity is attained at an
earlier age than in the North. Yet, if we may believe
missionaries, no human being is ripe for marriage before
the eleventh year of age. There are pontifical constitu-
tions which forbid marriage to be contracted at the age
z Cfr. cc. 12, 13, X, IV, a; c. 6 Sum ma de Spons. et Mat., ed.
2, X. IV, 15; c. un. 6s, IV, 2. Wunderlich, p. 22.
I Cfr. 11. 13, 29, dig. 19, 1; pr. Q Samma de Mat., cd. Laspcyres:
Inst. I, 22: 1. 3. Cod. V. 60. " Impossibilitas cocundi ammo et
4 Cfr. Wasserschlebeo, Die Bujs- corpore tarn impedit matrimonium
ordnungen, pp. 178, 217, 583. quam dirimit conlractum."
>Ic
£ ' ^ ^ %\j* Original fro ni
UNIVERSITY OF WISCONSIN
164 MARRIAGE LAW
of six or seven, but they do not state a precise limit.T
Our Code lays down the age-limit without reference
to either mental or bodily capacity. However, it stands
to reason that if a real and substantial defect of mind
could be proved, a marriage would be invalid even
after the age designated in the Code. But in that case
the subject belongs to the next chapter, which treats of
consent. As to impotency, this must be judged accord-
ing to the following canon.
In the United States there is no uniformity in the civil
law of the different States with regard to the age limit
for marriage. While in some the common-law age
of consent, namely fourteen and twelve, prevails, in
others it has been raised by statutes. The terms differ.8
The Statute of Missouri (sect. 4321) reads in part:
" No recorder shall issue a license authorizing the
marriage of any male person under the age of twenty-one
years, or female under eighteen, except with the consent
of his or her father or mother." But the invalidity of
a marriage under that age is nowhere explicitly asserted.
The Church, however, wisely admonishes pastors to
deter young people from marrying against the statutes
of their respective country. For the custom of a coun-
try is the best interpreter of the natural law in matters
of this kind.
P
impotency
Can. 1068
§ 1. Impotentia antecedens et perpetua, sive ex parte
viri sive ex parte mulieris, sive alter! cognita sive non,
T Bened. XIV, " Omnium sollici- the wae Bull, (ed Prati, Vol. I,
tuttinum," Sept. J a, 17*4. and tk« 4^8 IF.).
Const, of Cement XII, quoted in a Biahop, Mornagt Law*, I, p.
*49. • *■*•
§le
( * ^ .. ils* Original from
UNIVERSITY OF WISCONSIN
—
"-.
CANON 1068 165
sive absoluta sive relativa, matrimonium ipso naturae
iure dirimi t.
§ a. Si impedimentum impotentiae dubium sit, sive
dubio iuris sive dubio facti, matrimonium non est im-
pediendum.
§ 3. Sterilitas matrimonium nee dirimit nee impedit.
§ 1. Anterior and perpetual impotency, whether in
man or woman, whether known to the other party or
not, whether absolute or relative, renders marriage in-
valid by the very law of nature.
§ 2. If the impediment of impotency is doubtful,
whether the doubt be one of fact or by reason of the law
being doubtful, marriage should not be hindered.
§ 3. Sterility renders marriage neither invalid nor
illicit.
This is the impediment of impotency, set up by natural
law. As its nature is not determined in the text, there is
room for controversy, which has not been wanting. The
reader may rest assured that we shall not carry coal to
Newcastle, but keep within the boundaries of Canon Law.
(1) What is impotency? In order to understand the
attitude of the Church on this subject, a brief historical
note seems necessary. The Roman law distinguished two
classes of eunuchs or spadones;9 those who could not be-
get children and yet were entitled to contract marriage
with all its juridical effects ; and those who could neither
beget children nor contract marriage according to law.
In case of natural incapacity for marital intercourse (im-
potentia coeundi) the law permitted dissolution of the
union after an experiment of two or three years.10
The ecclesiastical conformed to the Roman law up
9 Spado from the Greek airAw, 10 Cfr. 8 9. * "'•. T. «i &• 39.
to draw, Puil, pluck, hence, to cat- dig. 33. 3: L 10. Cod. V, 17: Nov.
traU. 22, c. 6; Nov. 117, c. is.
oogle
k ,|,, Original fro m
UNIVERSITY OF WISCONSIN
166 MARRIAGE LAW
to the eighth century.11 A fluctuation is noticeable in
the writings of Bernardus Papiensis and Tancred, who,
however, following the French school, maintained the in-
validity of a marriage contracted with natural impo-
tency.11 According to the belief of those ages there was
an artificial impotency, due to satanic influence or witch-
craft.18 This artificial, as distinguished from natural im-
potency, or frigiditas, was not commonly regarded as
sufficient to constitute a diriment impediment. Some
uncertainty is perceptible in the Decretals, where the
expedient of allowing the parties to cohabit as brother
and sister is resorted to. Nor is the distinction between
absolute and relative impotency uniformly maintained.
All this goes to prove the wavering attitude of the School
in this matter. But the triennial experiment is fully
admitted,1* and it is further evident from the Decretals
that impotentia coeundi is the distinctive characteristic of
the impediment; hence the terms: foeminac clausae, im-
potentes commisceri maribus, arctae, whilst the men are
called frigidi, or simply impotentes coeundi, debitum red-
derc non potcntcs. At the same time, however, note the
terms: volo esse mater, nunquam pot nit fieri mater out
conjux, tanquam cui naturale dcerat instrumentum. We
note this purposely, in order to enable the reader to pass
a fair judgment on the opinions of those times. What
the theologians taught will be stated later.
The answer to the question, what is impotency? may
be given thus : It is a natural incapacity both for marital
intercourse and the procreation of offspring." This
P
'■-.
11 Cfr. Wasserscfaleben. /. c, p. la Cfr. X, IV, r$, de frigidis et
216', c. 18, C. 32. q. 7, which latter maleficiatis ct impotentia coeundi.
text is a dccUion of Greg. II, but 14 C. 5, X, IV, 15.
seems rather a dissolution of a IB Cfr. New International Encyc.
ratified marriage. 1904* '• *■ ** Impotency."
12 Summa tit, p. 177 1; Tan-
cred, Sttmma cit., p. 63.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 1068 167
definition would be given by any physiologist. But theo-
logians and canonists adopt a more restricted definition
of impotency. They say : It is incapacity for perform-
ing the marital act, which in itself would be apt for pro-
creation.^
Incapacity in this sense exists where the necessary or-
gans are entirely lacking. Men who have been com-
pletely castrated are incapable of exercising the copula.11
In women complete or perfect vaginismus (arctitudo)
causes incapacity for copulation. If this condition is in-
curable, the defect is called perpetual, and if it existed be-
fore marriage, it is called antecedent, in order to distin-
guish it from impotency contracted after marriage. Note
well : we say contracted, not discovered. For it may
happen that a person had the defect before marriage but
was unaware of its existence, although it is difficult to
understand that no physical disturbance should follow
such a defect. But whether it becomes known after
marriage only or is realized before marriage, whether or
not the party suffering from it revealed the defect to
the other party, is immaterial. If it existed in an in-
curable and therefore perpetual form, it affects the valid-
ity of the marriage.
A distinction may be drawn between absolute and rela-
tive impotency. This is illustrated by the following case :
Gemma upon ocular inspection was declared to lack the
natural instrument of copulation, and was therefore
granted a separation from James. But she found another
man with whom she could have marital intercourse.18
■
9
iB"Itthabilitas ad cofulam, quae capable of contracting: marriage,
f.r n for per se) apta est ad genera- J§ C 5, X, IV, 15: " Mulier in-
tionem." venit qui seras huiusmodi rescravit,"
17 SbtTtn V, " Cum frequenter," which seemi to allude to an nnatom-
Jyne 27, 1587: "Spadones utroque ical rather than physiological de-
test* carentts " arc declared in- feet.
0
jle
£ ~ ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
-'
p
168 MARRIAGE LAW
This is relative impotency, which affects a marriage be-
tween two definite persons only. But suppose Gemma
had been entirely devoid of natural organs, or so af-
fected with complete vaginismus, that intercourse would
have been impossible to her with any man ; then there
would have been absolute impotency. Similarly a com-
plete eunuch could not contract marriage with any
woman.
(2) The second part of our definition also calls for
some explanation. " Per se apta ad generationem "
means intercourse which is per se conducive to procrea-
tion. Here is the salient point of the controversy which
was called forth by two decisions of the Holy Office, Feb.
3, 1887, and July 30, 1890." These decisions read as
follows :
That of 1887 : " Nunt mulier, per utriusque ovarii ex-
cisi defectum sterilis effecta, ad tnatrimonium ineundum
permitti valeat et liceat, necne? Resp. Re mature diuque
perpensa, tnatrimonium mulieris, de qua in casu, non esse
impediendum"
That of 1890 (Quebec.): " Se unna donna, cui per
mano chirurgica siano asportate ambeduc le ovarie
e Vutero, possa validamente contrarre matrimonio."
Resp. Matrimonium non esse impediendum" (Cfr.
Coll,P.F.,n. 1733)
It follows that the lack of ovaries and uterus in a
woman does not constitute the invalidating impediment
of impotency. A distinction is here clearly supposed
between the terminus a quo and the terminus ad quern
of the copula. The former is the conjugal act, taken as
fecund, at least in posse, provided no obstacle interferes.
i» Cfr. Am. Eccl. Rtv., Vol. Essays in Pastoral Medicint, 191 1,
XXV1XI, pp. 51 11., where the proa p. 326 fi\, whose medical judgment
and cons are discussed at some gives way to moralist assumptions.
length; cfr. O'Malle? and Walah,
jle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 1068 169
The terminus ad quern is the same act as related to the
organs and elements required for fecundation, and there-
tore presupposes these organs, especially the ovaries
and the uterus, to be in a condition fit to produce the
natural result of the act, namely, procreation. The de-
cisions quoted simply require the terminus a quo.
(3) What of impotency if it negatively at least frus-
trates the primary end of marriage? In other words,
can the Church declare that a marriage is valid, although
the primary end of marriage cannot be obtained? After
having read all the authors on the subject, the conclusion
was forced upon us in the shape of the question just
formulated. It is a theological rather than a physiological
problem. In order not to fatigue the reader, as we were
fatigued by reading all those hundreds of pages,50 we
briefly resume the matter as follows :
(a) Ab esse ad posse valet Ulatio. The decisions of
the Holy Office quoted reflect the power of the Church,
but only over single or individual cases, as those men-
tioned really were. We may not generalize them, espe-
cially since the Holy Office never states the reasons for
its decisions. But the decisions of that august Congre-
gation are neither infallible, nor do they extend beyond
the cases for which they are rendered, unless the word-
ing has a general tenor.
(b) What justifies these decisions in casu is the fact
that marriage has several ends or purposes for which
it was instituted by the Author of nature. The primary
end is the procreation of offspring, and this is not only
intrinsic but also essential to marriage.21 It is the oflicium
naturae. When we assert that it is essential, we do not,
SO Cf. Eschbach, DUputationes Id., Dm Conceplu Impotentiat tt
Phytiologico-Theologicat, 1901; Id. StertiitatU, 1901.
in Anal Ecct.. t. X. pp. 85 *.; ** It i» difficult to admit state-
Antonclli, Mt&ieina Postoralis, 1905; menu n-.adc by the Salmant. and St
oogle
, ,1,, Original from
UNIVERSITY OF WISCONSIN
170
MARRIAGE LAW
however, mean to say that it is the sole end of marriage,
because there are secondary ends, as stated in can. 1013:
mutual help and relief of concupiscence. The right
of declaring that, in a particular case, the secondary ends
suffice, provided everything is done in a lawful manner,
in order to contract a valid marriage, must be vindicated
to the supreme authority in a matter subject to its power.
For the welfare, not only of single individuals, but of
Christian society at large, demands that there be such a
power, and none other can be imagined than the one set
up by God for ruling the society instituted by Christ.
This is nothing else but an interpretation of the natural
law.
(c) We do not believe that any further reason can be
assigned to justify the aforesaid decisions. We are
aware indeed of the argument that want of ovaries and
uterus is similar to lack of the power of begetting children
in an old woman, or, in other words, to sterility. How-
ever, the comparison is not perfect. For, in the first place,
sterility is only partial and sometimes only temporary im-
potency, which may be removed either by natural or
preternatural means.22 No doubt the possibility of a
miraculous interference had much to do with the attitude
of the Church towards sterility.23 Besides, as the late Fr.
Alphonsus (cfr. Anal. Eccl. 1902,
t. X, p. 468; Amer. Eccl. Rev.,
Vol. XXVIII, p. 658) that the tus-
ceptio prolis est (nee unicxis) nee
immediatus finis matrimonii. What
then is the finis prvnariust The
coitus f The sophism (Am. Eccl.
Rev., ?8, 651) does not consist in
distinguishing the ecclesiastical
from the medical sense of im po-
tency, but in admitting a difference
between naturtl and ecclesiastical
impotency. The impotency caused
by nature and intended by the
Church must be one and the same.
See Am. Eccl. Rev., April 1919,
Vol. 60, 426 ff., where the doctrine
of St Thomas concerning consum-
mation of marriage is clearly set
forth.
22 We would like to hear an able
physician's view as to whether a
woman destitute of ovaries and
uterus could by miraculous inter-
ference be made pregnant and
bring forth a child.
23 Examples: Sarah, Anna, Eliza-
beth, the parents of SS. Nicholas
/Google '
Original from
UNIVERSITY OF WISCONSIN
CANON 1068 171
Lehmkuhl, S. J., justly pointed out, there is a great dis-
similarity between the two cases.2* If the ovaries and the
a
uterus are excised, we have a positive interference, either
lawful or unlawful, with nature. If this interference
takes place by mutual consent and agreement, it invali-
dates marriage because it is incompatible with a sub-
stantial end of marriage. Sterility, on the other hand, is
merely a passive condition of either one or both parties,
which does not in any shape or form suppose a mutual
pact of avoiding the primary end of marriage. If mar-
riages such as those referred to in the two decisions would
be allowed generally, and not merely by way of exception,
one stronghold against race suicide would be seriously
shaken, and the primary end of marriage would be made
coordinate with the other two, which are merely secon-
dary.
§ 2 permits marriage as licit and valid if there is any
doubt as to the existence of the impediment of impotency -
The existing doubt may be one of fact or of law. There
is a dubium facti if the natural impotency is not abso-
lutely proven, for instance, in surgical operations, after
which there sometimes remain traces of the generative
power. A doubt of law existed in the case mentioned
above, because it seems as yet uncertain how far the limits
of impotency extend. Until a general interpretation is
a
given M the Church wishes us to apply the principle: "In
dttbio libertati favendum est."
For the rest, the Holy Office has declared that in case
of doubt recourse should be had to Rome.2*1
of Tolentino and Juliana de" Fal- tanea P. F. (see the number
conitri. quoted). This corroborate! our
2* Am. Eccl. Rev., Vol. 28, 317. view. The other causa referred to
SB That the decision of S. << . by Card. Caipsrri ia rather a dia-
July 23, 1890 (Coll. P. F. n. 1733) pensation from a ratified marriage;
was only a particular one, 11 duly cfr. A. S. S*., t. 14, p. 68.
noted by the editori of the CoIUc- 29 S. O., July 31, 1895; Jan. 16,
>ogle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
172 MARRIAGE LAW
1895 {Coll., n. 1907, Vol. II, ITS. O., March 8, 1900 (£M>
3«4)« <*• «78); Leitncr, /. c, p. 151 f.
I InrKlI^ Original from
8ie UNIVERSITY OF WISCONSIN
§ 3 mentions sterility. Now sterility exists when the
copula per se apta ad generationem can be properly per-
formed, but by a merely accidental and natural fact fe-
cundation does not follow. This happens when marriage
is contracted at an advanced age when the generative
powers have ceased to function. Those authors who
maintain that a woman without ovaries and uterus can
contract a valid marriage, would consistently have to re-
duce that kind of impotency to mere sterility. What we
said on the subject under § i, (3, c.) may suffice. We will
only add that if no sophistry is to be practiced, the ec-
clesiastical concept of the impediment of impotency can-
not differ from that given by competent physiologists,
since the impediment of impotency is not established by
the Church, but by the law of nature.
We add a few practical hints to the confessor or pastor.
The first question, of course, in such a case would be,
whether a conscientious physician has been consulted and
what was his opinion? If the physician diagnosed the
case as one of perpetual and antecedent impotency, his
judgment must be referred to the diocesan court, unless
there is room for the solid presumption that the parties
may be allowed to live together like brother and sister,
and a separation would cause grave scandal. But the
danger of incontinency must be remote.27 If the parties
prefer to get an ecclesiastical divorce, that would dissolve
the matrimonial tie.
A triennial experiment is no longer admitted, but its
place is taken by ocular inspection by physicians or
nurses.
As to hermaphrodites, or such persons as have the
sexual characteristics of both sexes, whether it be andro-
Q
CANON 1069 173
gynia or gynandria or hermaphroditismus neuter, the
testimony of physicians is required. No hertnaphroditus
neuter can possibly be called capable of marrying because
the sex is not sufficiently determined.28 Finally it must
be observed that artificial fecundation, i. e., extra copulam
naturalem, is never allowed."
The parties involved are alone competent to attack the
marriage on the score of impotency, for they are the only
ones interested. And if they do so, they must prove
that the existing impotency is antecedent and perpetual
and cannot be removed by natural and lawful means. If
it is absolute, *. e.f renders the conjugal act impossible, it
also renders marriage with every other person invalid ; if
it is merely relative, it affects only the persons concerned.80
ligamen or bond of a previous marriage
Can. 1069
§ I. In valid e matrimonium attentat qui vinculo tene-
tur prioris matrimonii, quanquam non consummate
salvo privilegio fidei.
§ 2. Quamvis prius matrimonium sit irritum aut so-
lutum qualibet ex causa, non ideo licet aliud contra-
here, antequam de prioris nullitate aut solutione legi-
time et certo constiterit.
§ 1. Those bound by the bonds of a former marriage,
even though it was not consummated, attempt marriage
invalidly, excepting the privilege of the faith.
§ 2. Although the previous marriage be invalid or dis-
solved for whatever reason, it is not lawful to contract
fSAntonelli, /. c, p. 105 f.; the clause added to that deciaion,
£«chbach, '- c, p. 53 f. 3a not found in the other two.
MS. O., March 24, 1897 (Colt,, so Instructio S. C. P. F., 1883. n.
n. 1904): " Sjmut adprobavit," 46 (Coll., n. 1587)
oogle.
v ,| , Original from
UNIVERSITY OF WISCONSIN
174 MARRIAGE LAW
another one before the nullity or dissolution of the first
has been legally and certainly established.
The essential properties of marriage, unity and indis-
solubility, exclude a valid marriage with another party
while the marital bond continues. Divorce, as understood
by the civil law, was and is repudiated by the Church.
A person who married a divorced man or woman in
former times had to do penance publicly and break off
the unlawful relation, otherwise he was denied the Sac-
raments, except at the point of death.31 However, it can-
not be denied that a matrimonium ratum tanturn was
judged more liable to solution than one both ratified and
consummated, and diverse opinions, even of Roman
Pontiffs, floated about in the canonical air 82 until a deci-
sion given by Pope Alexander III made the position of
the Church more uniform. From the Penitential Books
■
we know that the time of waiting for the certainty of
death of the other party was not extended, five years be-
ing deemed sufficient if the party was taken captive,38 nor
rigorously insisted upon. This leniency is easily ex-
plained by the slow and difficult means of communication
in times past.
§ I sets up the diriment impediment of the marriage
bond, or ligamen, opposed alike to polygamy and divorce.
That this impediment exist, it is required, (a) that the
first marriage was valid and never dissolved, even though
(b) the union is not yet consummated, but only ratified.
This latter condition is quite intelligible, because the mar-
riage bond is validly contracted by a valid consent, and
needs no consummation to be perfect.
81 Syn. of Elvira (305), can. 9; /. c, p. 49; c. 3, X. IV, 14, where
c. 8, C. ja, q. 7. Alex. Ill reviews different verdicts
32 Cfr. Bernard. Pap., /. c, p. of his predecessors.
298; Rolandua Mag., Summa, ed. M Cfr. Wawcrschlcben, /. ftj p.
Thaner, pp. 114, 187, aoo; Tancred, 148.
§le
f^ ^ s ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1069 175
The first condition supposes a valid union that has not
been legitimately dissolved. Validity depends on the
valid consent, on the observance of the prescribed form,
and on the absence of diriment impediments. The con-
sent would be affected by a condition opposed to the es-
sential qualities of unity and indissolubility. For in-
stance, a couple taught to contract marriage subject to di-
vorce would contract invalidly, if this condition was
stipulated by mutual consent.** The form would affect
the validity if marriage were contracted against can.
1094 ff. A diriment impediment would invalidate the
marriage if it objectively affected either one or both of the
parties. Thus, for instance, James, a baptized person,
pretending to be a Catholic, married Gemma, but after-
wards declared that he was no Catholic at all. The mar-
riage was declared valid on the ground that, as James was
baptized, neither dissimulation nor apostasy could annul
a marriage validly and lawfully contracted by him.38
The privilege of the faith could not be invoked in this
case.3* As long as a former marriage exists, the second
is invalid, and the parties must separate.37 The clergy
or hierarchy cannot connive at polygamy, even though
there were danger that a whole country would be
involved in heresy, as happened once upon a time in
Transylvania (Hungary). All they can do is to abstain
from inflicting penalties, if the danger of apostasy is
general.38
A marriage which is only ratified, not consummated,
may be solved by papal intervention, as shall be seen un-
■"■
84 S. 0., Jan. 34, 1877 {Coll. P. marriage; the bond remains; cfr. S.
F., n. 1465); cfr. can. ioga. O., Dec. 11, 1850, ad 35-37 {Cell.,
83 S. 0., March 30, 1817 {Coll., n. 1054).
n. 7ji). 3T S. O., Aug. 19. 1837 (Coll.,
80S. 0., March ao, 1675 {Coll., n. 1 147>-
n. 308). A Christian became a as S. O., June 33, 1G71, ad 3
Mohammedan after baptiam and {Coll., n. 196).
jle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
176 MARRIAGE LAW
der can. II 19, and by religious profession, which is
treated under can. 1073.
A legitimate though consummated marriage can be dis-
solved only by the application of the Pauline Privilege
(see can. ii2ofT.).
§ 2 treats of what is technically called certus mortis
nuntius, certainty regarding the death of the other party.
The proof for the dissolution of the former marriage
bond, says the text, must be legal and certain. If legal
proof has been duly furnished, the ecclesiastical judge
need require no more. Before explaining the method of
procedure in such matters, some preliminary remarks
seem pertinent.
(a) There is no definite time limit or determined num-
ber of years required for quasi-prescription ; hence the
ecclesiastical judge should never conform himself to the
prescription of the civil law concerning the number of
years.80
(b) The clergy can never declare that, if no notice of
death is received, a marriage is dissolved after a certain
lapse of time. To do so would be cooperating in polyg-
amy and adultery.40 Note here what has been said under
can. 1031.
The method of legally proving the death of a person
is as follows : 41
1. If possible, an authentic document*2 must be ob-
tained from the records of the parish or hospital or asy-
lum or military department, or from civil authority.
2. If no such document can be obtained, two witnesses
3D S. O., Instr. 1868 {Coll., n. «o S. ■">.. June 23, 1671 ad 1
1331). Our modern codes admit (Coll., n. 196).
full divorce in case of prolonged 41 Instruetio S. O., 1868 (Coif.,
absence; cfr., for instance, the n. If**)! /»*'''. S. C. P. F., 1883
Statutes of Missouri, sect. 2921, {Coll., n. 1587).
where one year's absence is de- 42 What an authentic document
clarcd sufficient. is may be seen under can. 1990.
§le
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
, CANON 1069 177
may be admitted. These must be trustworthy persons and
testify under oath. They must have known the person
whose death they attest, and their testimony must agree
as to the place, the cause and the essential circumstances
of the death.
3. If two witnesses cannot be produced, one will suffice,
provided he was acquainted with the party and the cir-
cumstances of death, and nothing unsuitable or unlikely
is found in his deposition.
These witnesses may also testify from hearsay, pro-
vided their testimony agrees with circumstances known
from other sources, and provided their information has
come from direct witnesses.
4. If no witnesses are available, the judge may resort
to circumstantial evidence, which is furnished by conjec-
tures, presumptions, and circumstances that preceded, ac-
companied, and followed the supposed death. Examples
are furnished by military companions, especially officers,
or by the companions and circumstances of a voyage
either on land or sea ; whether the person in question
travelled alone or in company, for what purpose, which
was his route and destiny, whether a wreck took place,
etc.
5. Rumor may be admitted if other proofs are want-
ing. A rumor must be established by two trustworthy
witnesses who testify under oath to its reasonableness as
also to the general opinion of the people and their own
conviction.
6. Finally, a newspaper advertisement may effect the
desired result, especially if the manager is furnished with
the necessary information.
These are the rules which the ecclesiastical judge should
follow. If he is morally certain of the death of the
other party, he may pronounce sentence to the effect
oogle
v ,|Y, Original fro ni
UNIVERSITY OF WISCONSIN
178 MARRIAGE LAW
that the surviving party may contract another marriage.
Nor are two uniform sentences required to permit a sec-
ond marriage.*3 If the doubt can not be entirely removed,
recourse must be had to Rome and all the documents for-
warded thither.44 Meanwhile the parties must be told to
separate until a decision is rendered.
Here it may be stated that neither the confessor nor
the pastor are entitled to give judgment in such cases.
When approached, they must direct the parties to the
diocesan court, or, with the permission of the latter,
themselves bring the case before that tribunal. If a sec-
ond marriage was already concluded and a reasonable
doubt as to the death of the former party exists, the
parties must be told to suspend their marital relations
(copula) until a decision is given.40
The Code says that until such a verdict is rendered, the
parties concerned may not lawfully contract a new mar-
riage. This means that the second marriage will be valid,
provided the former marriage was dissolved by whatever
cause. This case was brought before the S. C. C,
which decided that the second marriage was valid, though
illicit.40 Consequently the party thus contracting a mar-
riage without full certainty as to the former partner's
death, though it had really occurred, would not be allowed
to demand the debitum, but only to render it if asked.
a
A curious case was solved in 1865 by the Holy Office.47
Titius was taken by rebels and no notice of his fate reached
his wife Martha for two or three years. She married a
man named Mark, a Christian like herself. Mark, being
seriously rebuked by the local missionary, declared his
43 S. 0-, May 6, 1891 {A. S. S., «e S. C. C, Sept 9. 1752, Smyr.
t 34, 74?). (Richter, Trid., p. 335, a. 93).
44 S. 0., Aug. 19, 1857 »d a 4T S. 0., Mirch «, 1865 (Co//.,
(Coll., n. 1147)- n- Ja7a).
45Cfr. Leitaer, /. c, p. 170 f.
oogle
v ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 1070 179
readiness to leave Martha, but wished to marry another
woman. The Holy Office decided that the parties were
to be separated, but Mark could not marry another until
he was morally certain that at the time of his marriage to
Martha, the latter's husband was still alive. Although
this solution at first blush seems strange, it is quite logical,
for if Martha's first husband had been dead when she
married Mark, the marriage would have been valid and
Mark could not validly leave her and marry another.
Therefore he had to wait until he could obtain certainty
regarding Titius's death.
CI
disparity of worship
Can. 1070
p
§ 1. Nullum est matrirnoniura contractum a persona
non baptizata cum persona baptizata in Ecclcsia ca-
tholica vel ad eandem ex haeresi aut schismate con-
versa.
§ 2. Si pars tempore contracti matrimonii tanquam
baptizata communiter habebatur aut eius baptismus
erat dubius, standum est, ad normam can. 1014, pro
valore matrimonii, donee certo probetur alteram par-
tem baptizatam esse, alteram vero non baptizatam.
§ 1. A marriage is null when contracted by a non-
baptized person with a person baptized in, or converted to,
the Catholic Church from heresy or schism.
§ 2. If the party, at the time of the marriage contract,
was commonly held to have been baptized, or if his or her
baptism was doubtful, the marriage must be regarded
as valid in accordance with can. 1014, until it is proved
with certainty that one party was baptized and the other
was not.
>Ie
J , Original fro ni
UNIVERSITY OF WISCONSIN
■"■
"-.
i8o MARRIAGE LAW
Can. 1071
Quae de mixtis nuptiis in canonibus 1060-1064 prae-
scripta sunt, applicari quoque dcbent matrimoniis qui-
bus obstat impedimcntum disparitatis cultus.
The rules laid down in can. 1060-1064 for mixed mar-
riages must be applied also to marriages to which there
is an impediment of disparity of worship.
This impediment, like that of mixed religion, is based
on the natural and on divine law. The natural law, as
stated above, forbids endangering one's faith without
necessity. The divine law has a positive foundation
in Holy Writ, which reprobates unions between Jews
and Gentiles.49 Christianity in the beginning was more
lenient in this respect, for reasons which were certainly
justified.49 The Christian Emperors declared marriages
between Jews and Christians illegitimate.60 This civil
legislation was adopted by a number of councils (El-
vira, 305, Toledo VI and Xf Orleans and Clermont).'1
In the eleventh and twelfth centuries canonists regarded
heresy as a diriment impediment. Gradually, however,
since the beginning of the thirteenth century, by custom
rather than by positive law, a distinction was made
between infidelity and heresy with regard to mar-
riage.53
1. The foundation of this impediment is the essential
difference of religion brought about by Baptism. Hence
a pagan, whether Buddhist, Brahman, Mussulman, or
a Jew, even though enrolled among the catechumens,
4fl Exod. 34. 16; Deut. 7, 3 f. oo L. a, Cod. Theod., Ill, 7; I. a,
«C£r. Tcrtull., Dt Corono, c. ft. XVI, 8; 1. 6, Cod.' I, 9-
13; De Monogamia, c. 11; Ad Ux- II Cfr. Frefecn, /. c, p. 635 f.
orem, II, 3. He rebukct marriages M Hcned. XIV, "Singular* No-
with pagans, but never tayi they are bis," Feb. 9, 1747. I 9-
invalid.
Go >gle
, ,.] , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1071 181
cannot validly contract a marriage with a baptized Cath-
olic.
2. Note the difference between marriages contracted
before May 19, 1918, and after that date. The Code,
while it legislates only for Catholics, appears to imply
that after the date mentioned Catholics only are bound by
this impediment. Such, at least, seems to be the preva-
lent opinion.88 But the question arises. What about the
impediment if contracted before May 19, 1918? Take
an example. James, a Jew, married Gemma, a baptized
Anglican, in 1913. Was the marriage valid? No, be-
cause before the promulgation of the Code the impediment
of disparity of worship bound baptized Protestants. Has
the marriage become valid since the promulgation of the
Code? No, because marriages contracted invalidly by
reason of ecclesiastical impediments abrogated by the
New Code do not become valid by its promulgation.
Hence if either James or Gemma should become a Cath-
olic, they would need a dispensation or, possibly, a sanatio
in radice. This is the answer given by the Commission
for the Authentic Interpretation of the Code.6* There
is only one difficulty connected with this answer: The
number (1) which contains the answer speaks exclu-
sively of promulgation, whilst the following number,
which treats of spiritual relationship, takes May 19, 1918,
as the date on which the impediment, as formerly un-
derstood, ceased. However, since the same Commission
speaks in n. 6 of the ius vigens (the law as now in force),
we believe that promulgation in our case, which has no
date, must be taken as May 19, 1918, or the date on
which the Code commenced to be law.
BSCfr. Am. Eecl. Rn\, 1918, Vol. n* June •-$, 1918 {A. Ap. S.t X.
LVIII, p. 484. The quotations in 346).
Card. Giiaparri's edition Kent to
prove the contrary.
Go* >gle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
182 MARRIAGE LAW
3. The Catholic who cannot validly marry a non-tap-
tized person is one who was either baptized in the Catholic
Church, or converted thereto from heresy or schism.
(a) He is baptized in the Catholic Church who has
become a member of that body through valid Baptism. If
a Catholic minister performed the ceremony, there can be
no reasonable doubt as to its validity. But since private
baptism may also be employed, and parents have the right
of baptizing their children at least when there is danger
of death,54 Baptism must also in this case be presumed as
given in the Catholic Church. The same must be said if
Catholic grandparents, or guardians, have baptized a
child in a case permitted by law."
(b) Converts are persons who have been heretics or
schismatics, but embraced the Catholic faith either by
receiving (conditional) Baptism or by abjuring their
former creed. Heretics are those who, after having re-
ceived Baptism, retain the name of Christian, but perti-
naciously deny or doubt some truth which must be be-
lieved by divine or Catholic faith. A schismatic is one
who refuses to subject himself to the Sovereign Pontiff or
to be in union with the members of the Church subject
to him." A heretical tendency is usually connected with
schism. Heretics, then, and schismatics, if converted
to the Catholic faith, cannot validly contract marriage
with a non-baptized person. The question here arises:
does can. 1099, § 1, n. 2, apply to the following case?
James had been a convert to the Catholic faith for a
number of years. Now he is engaged to a rich young
lady, Gemma, who, though taken to be a Protestant, was
never baptized. She is opposed to a Catholic marriage
B6 Cfr. can. 742. 0 3.
50 Cfr. can. 750, S 2, ind what is laid under can. 1099, | 1.
BT Cfr. can. xjaj, | *.
od by GoOgle
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1071 183
and mode of life, and spurns any insinuation as to prom-
ises. James finally gives way and leaves the Catholic
faith, declaring himself a Protestant. After a few
months the two are married before a squire. No doubt
can. 1099, § 1, n. 2, renders that marriage invalid; for
the form prescribed was not observed. But does can.
1070, § 1, also render it invalid? It might justly be urged
that this canon supposes the party, actually there and
then, at the moment of the marriage, to belong to the
Catholic religion. Yet the rule of interpretation from
parallel texts would seem to demand that the law of
clandestinity be here applied to the case of disparity of
cult. For the wording is almost the same. Therefore
we believe that the marriage in casu is invalid on account
of the existing impediment of disparity of cult as well as
by reason of lack of the required form."
§ 2 speaks of a common opinion to the effect that a per-
son was baptized. Here is a case in point. Gemma was
held by all to be a Catholic and married James, a
Catholic, in church. But afterwards she told the priest
that she had never been baptized. The priest baptized
her secretly and probably thought this revalidated the
marriage ; but it did not, because the impediment was
objectively and subjectively in the way of validity.
Therefore, simple revalidation being impossible, there was
no other remedy left but sanatio in radice™ Ignorance
of the law enacting the impediment does not excuse. For
impediments are not established for private but for the
public good.00 In the case just mentioned the proof that
08 Can. 1099, I 1, n. i, cjuki EccL, 1907, t XV, p. 8 £.); April
tome difficulty, because even a ag, 184a {Coll. n. 948).
fallen-away convert ia bound to ob- «o S. 0., Sept. I9i 1671 (Coll.,
serve the form prescribed by the n. 901) lays: " Et /#jt Iwiusmodi
Church. impediment urn indveeni non fuit in-
bo S. O., Aug. *j, 1906 {.Inal. vincibilittr igmenta'*; but this
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
184 MARRIAGE LAW
Gemma never was baptized was given in the confessional,
and this was deemed sufficient.
More difficult would be the case where Baptism was
doubtful. Most sects now-a-days care little for this sac-
rament; not a few openly spurn it The rules given
above for mixed marriages suffice to enable us to under-
stand the Roman practice. For the rest, conditional
Baptism may remove the difficulties. But the general
rule stated above (under mixed marriages) that each
Baptism must be examined separately, especially as to
matter, form, and the intention of the minister, also holds
good in the case of this diriment impediment.61 See the
answer given by the Holy Office to the bishop of Seattle
(then Ncsqually), that a general presumption against the
validity of Baptism is not admissible. The bishop had
asked concerning the baptism conferred by Methodist
preachers, who were (and are) inclined to deny the ne-
cessity and efficacy of this sacrament and employ a doubt-
ful form, especially in regard to the Holy Ghost. The
Holy Office 6I answered that an erroneous intention on
the part of the minister concerning the efficacy of Bap-
tism does not affect its validity, and as to the mode of
administering the sacrament, the ritual used by these min-
isters should be examined to ascertain whether the rite
contains anything affecting the validity of Baptism. In-
quiry should also be made into the conduct of the min-
ister,— whether he observed the ritual of his denomina-
tion, etc. From all this it will be seen that no general
rule can be established with regard to the validity of
clause refers to admission to the fli S. O., Nov. 17, 1830; July 5.
sacraments; elsewhere the Holy Of- 1853; Jan. 24, 1877 {Coll., nn. B*i,
fice declared that ignorance, even if 1096, 1465)-
invincible, does not remove the im- "•' S. <_>., Jan. 24. i*77 {Coll., n.
pediment; S. O., July 4. iBss: M*5>'
March 11, 1868 {Coll., tax. KB*
1326).
"-.
ioi >gle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1071 185
Baptism administered by American Methodists. That
Anglicans baptize validly is taken for granted in the
same document, whereas the Baptism of Quakers is re-
jected as invalid.
But in all cases certain proof, and not a mere pre-
sumption, is required to establish the validity or invalidity
of a Baptism. Where no proof is adduced, the presump-
tion is in favor of validity. The question how proof is
to be furnished may cause trouble and a good deal of
writing. If no baptismal record can be obtained, and
no witnesses (sponsors) or parents are available to testify
to the fact of Baptism, the party himself must be asked
under oath whether he knows anything of Baptism being
administered to him, what sect he or his parents belonged
to, etc. Then the rules given above for mixed mar-
riages may be applied. Until this is done, however, the
party must be presumed to have been validly baptized, un-
less he and his parents were unbelievers, in which case
there would be a strong presumption that Baptism had
never been administered.83 (See Appendix III, infra.)
Can. 1071 mentions the promises and reasons stated un-
der the same heading in can. 1060-1064 concerning mixed
marriages. The two promises must be made in the same
way as in mixed marriages, and the reasons must be just
as strong as, if not stronger than, those required for a
mixed marriage. The Roman Court has always insisted
upon very grave reasons.8* However, the canonical rea-
sons mentioned under can. 1054 will suffice. Yet if there
were great danger of scandal, especially in an entirely
Christian country, the Holy See might not dispense.08
esYet eren in that case the pot- MS. O., Sept 5. »73« (Coll., n.
slbilrty of Baptism is not entirely 319)- A long-standing marriage
excluded, for it may be that the and offspring would be a solid rea-
cblld was baptized in a hospital or son.
by a nurse, etc. 08 The case of PopperCastrone
►ogle
, ,|r> Original from
UNIVERSITY OF WISCONSIN
186 MARRIAGE LAW
As to the faculties of our Ordinaries, see under can.
1048. A few remarks may complete what is said there.
There is a decision of the Holy Office which says that
a dispensation granted without demanding the guarantees,,
or after the contracting parties have refused to give
them, is null. The Ordinary may, without recurring to
the Holy See for a final sentence, declare such a marriage
when contracted without the promises to be void.*8
The faculty of dispensing from the impediment of
mixed religion is specifically different from that of dis-
pensing from disparity of worship, and therefore the one
does not supply the other.87 But the cumulative faculty
is thereby not curtailed.89 If a dispensation from dispar-
ity of cult is granted to a couple already married, re-
newal of the consent is required, unless a sanatio in radice
has to be applied.69
If the pastor, when asking for a dispensation, is in
doubt whether a dispensation from disparity of worship
or from mixed religion is required, let him ask for both
and explain the reason for his request.70 It may happen
that in the meantime new proofs either for or against the
validity of Baptism are brought to his attention. If
the doubt against the fact or the validity of Baptism is so
strong that it almost amounts to a certainty, the dispensa-
tion from disparity of cult should be applied. But
if the doubt disappears in favor of the validity of Bap-
tism, the dispensation from mixed religion must be used.
(Popper was * Jewish baron of «8Cfr. can. 1049.
Hungary) if proof of this, for a eo S. O., June is, 1850 (Coll.,
dispensation was denied (Arch. f. n. 1044).
K.R., Vol. LV, 161, 361; Lehner, ToCfr. S. O., April 20, 184*
/. c, p. S75), although an enormous (Coll., d, 948; PuUcr, I. c, p.
sum bad been offered 394)- Lehmkuhl's assertion (Theot.
00 S. O., June si, 191a (A. Ap. Moral., II, 752. 3) that the dis-
S.t IV, 443). pensation from mixed religion hypo*
ATS. 0., April ::o, 184a; March thetically and tacitly containa that
j8, 1891 (Coll., nn. 948, 1750). from disparity of cult, cannot easily
>Ie
, .,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1072 187
sacred orders
Can. 1072
Invalids matrimonium attentant clerici in sacris or-
dinibus constituti.
A marriage is invalid when attempted by clerics in
major orders.
This brief canon has a lively history and must be com-
pared with can. 132, in connection with which we have
given a sketch of clerical celibacy in the Latin and Ori-
ental Churches. The Oriental practice,71 which permits
clerics to marry before they are ordained subdeacons, is
not admitted in the United States, and no priests of the
Oriental Rites are allowed to exercise the sacred min-
istry here unless they obey the law of celibacy.72
Celibacy was established as a diriment impediment for
the Latin Church by the Ilnd Lateran Council, a. d. 1139,
which made it obligatory also on subdeacons and thus
raised this latter order to the rank of a higher or sacred
order. Although attempts were made to abolish celib-
acy at the councils of Constance and Basle, the Church
has always upheld this prerogative of her clergy.
The impediment arises from a sacred or higher order
validly and willingly received. We say validly, for the
impediment cannot exist, unless it has a foundation, and
a
there is no foundation if the ordination was invalid.78
But ordination may be valid but received unwillingly.
be admitted- For the negative 71 Bened. XIV. " Etri pastorolis."
answer of the Holy Office to the May 26, 1742; " Eo quamvis," May
question: " Utrum intendat S. 4, 1745; "Anno vertentt," June
Sides dispensare etiom super im- 19, 1750; Milasch-Pessic, K.-R. d.
pedimento dispartiutis chIImj quando abendl&nd. Kwche, 1905, p. 598.
dispensal partem catholicam ad con- 72 S. C. P. F., Oct. 1, 1890;
trahendum cum parte atatholica" June 13, 1891; May 10, 189a.
would seem to preclude §uch an aa- 78 ReifTenatnel in Reg. Jurii 5a
sumption. in 6*; Engel, III, 3, n. xa.
jle
% ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
188 MARRIAGE LAW
Can. 214 declares a validly ordained clergyman free from
the obligation of celibacy if ordination was administered
under compulsion or grave fear/4
The effect of this impediment is that it invalidates a
marriage to be contracted, but does not dissolve a mar-
riage already validly contracted. Therefore the wife of
a cleric who has received higher orders with Apostolic
dispensation ,5 cannot contract a new marriage.™
The source of the impediment is not the vow attached
to celibacy," but the ecclesiastical law which forbids
sacred ministers, for reasons of the public good, to con-
tract marriage. The vow is only an accessory, and, we
may say, a safeguard of the law which imposes the ob-
ligation of continency. Therefore this impediment is
specifically distinct from that of solemn profession.
Although this impediment is huffs ecclesiast'tci, and
binds only the clergy of the Latin Church,78 yet dispensa-
tions from it, especially when the diaconate is involved,
are exceedingly rare.* This may be seen from can. 1043,
which excepts from the power of dispensation the case of
priests. If such a case comes before a pastor or confes-
sor (danger of death), nothing can be done but to impart
absolution, provided the penitent is properly disposed
and agrees to separate from the woman and repair the
scandal he has given.
T4Cfr. S. C. C, Yprena., Dee. Werna, XV, p. 534 (ed. i);
16, 1719 (Rkhter, Trid., p. aoi £., Schcrcr II, 367.
D. 1). T a Whether a marriage attempted
T5 Can. 132, I 3. by a cleric of the Oriental Rhe in
76 Sanchez, /. c, 1. VII, diap. 40, the U. S. before aubdeaconabip
nn. 2, 6. would be invalid, has never been dc-
Ti A vow was maintained by San- cided. Practically the question ii
cber, 1. c, VII, diap. 37. n. 9! but useless, because such a priest could
the majority of authors defend not exercise the ministry,
the view staled in the text; effr. * See Riehter, Trid., p. soa, n. a.
*Ie
Original fro ni
UNIVERSITY OF WISCONSIN
Q
CANON 1073 189
religious profession
Can. 1073
Item invalids matrimonium attentant religiosi qui
vota sollemnia prof essi sint, aut vota simplicia, quibus
ex spcciali Sedis Apostolicae praescripto vis addita sit
nuptias irritandi.
Marriage is null also if attempted by religious who have
taken solemn vows, or simple vows that have the force
of invalidating marriage by special disposition of the Holy
See.
After the religious state had spread and experienced a
certain relaxation, especially in Spain, there were not a
few cases of attempted marriage, with which the Church
was prompt to deal. The marriages of religious were de-
clared " unlawful and sacrilegious unions," " incestuous
and adulterous," and condemned by civil and ecclesiastical
laws.7* The severe denunciations by Popes Siricius
(384-399) and Innocent I (401-417) seem to indicate
that they regarded solemn vows as an annulling impedi-
ment. They were formally declared to be such by the
Ilnd Lateran Council, 1139.80 Boniface VIII, in his
much-discussed Decretal,81 added nothing new to the in-
trinsic force of the prohibition, but merely declared that
the distinction between solemn and private vows was in-
troduced with the sanction of the Church (constitutione
ecclcsiae). It was the view of the School,82 as well as the
Roman practice up to the time of the foundation of the
Society of Jesus, that vows taken either explicitly or
implicitly in an approved religious order were solemn and
79 Cfr. Constant, Epp. Rom. 81 Cfr. Bern. Pap., Summa, ed.
Pont., pp. 639, 688, 755. Lupeyre*, p. 149; Taocred, Sum-
BO C. 40, C. 27. q. 1. ma, ed. W underlie h, p. 20.
si C. un. 6 . Ill, 15; cfr. c 9, X,
III, 31.
*Ie
• Original from
UNIVERSITY OF WISCONSIN
190 MARRIAGE LAW
constituted a diriment impediment to marriage. When
the Jesuits drew a distinction between solemn and simple
vows among their members, it became necessary to have
a declaration by the Apostolic See that the members of
the Society with simple vows were true religious. The
consequence was that Gregory XIII attached to these
simple vows the same effects, as concerns the vow of
chastity, which flow from solemn vows.88 Hence the
clause in our Code: "by special disposition of the Holy
See."
1. The foundation of this impediment is solemn pro-
fession, which, like the impediment itself, originates in
the sanction of the Church and is therefore iuris ccclcsi-
astici. If simple vows have the power of invalidating
marriage, this is not by the common law of the Church,
but by a special ruling of the Apostolic See. By com-
mon law only those religious orders in which solemn
vows are taken, and in these orders only those mem-
bers who have pronounced solemn vows, are affected by
this impediment.
2. For solemn profession to induce this impediment,
it must be made validly, according to the conditions estab-
lished in our Code.84 If the solemn vow was dispensed
from, there is no effect invalidating marriage.
3. There is a specific difference between the impediment
arising from sacred orders and that attached to solemn
profession, owing to the fact that they have a different
foundation, inasmuch as sacred orders constitute a mar-
riage impediment not by reason of the concomitant vow
of chastity, but merely by ecclesiastical law ; whereas
solemn profession is an impediment by reason of the vow
■8 Greg. XIII, "Quanto fructu- mentary. Vol. Ill, p. as* ff.: S. C
osius," Feb. 1, 1583; " Aictndmtt C, March 26, April 9, 1718 (Rich-
Domino," May as, 1584. ter, Trid., p. ass, o. 93).
8* Cfr. can. 5;.- and our Com-
jle
i*~* ^ *-.!,» Original from
UNIVERSITY OF WISCONSIN
CANON 1073 191
at
itself, and indirectly in virtue of the ecclesiastical law
that sets up the distinction between solemn and simple
vows. The consequence is that one who is in sacred or-
ders, and at the same time solemnly professed, is bound
by two impediments, and the Ordinary who may enjoy the
faculties of dispensing from impediments ittris ecclesia-
stics would have to " cumulate " the faculties.85 Note that
although the Holy See may dispense from this impedi-
ment, yet it does so only in very rare cases and always re-
stricts the dispensation to the one marriage for which dis-
pensation is granted.80
4. The decretals 8T as well as our Code ■■ attach a
further effect to solemn profession, viz., the dissolution
of a marriage which is ratified but not yet consum-
mated. For that purpose a space of two months was gen-
erally granted, during which both parties were free to con-
summate the marriage or not. After the lapse of this
period the party who refused to render the debitutn
coniugale could be compelled by the ecclesiastical judge
either to render it, or to embrace the religious state and
make solemn vows.89 In order, however, that the other
party who is unwilling to enter religion need not wait four
years (one year's novitiate and three years of temporary-
profession), recourse to the S. C. Rel. may be had to
permit acceleration of solemn profession. Now-a-days
no one bound by the marriage bond can be validly re-
ceived into any religious order without an Apostolic in-
dult.80 Therefore after the very first moment of a valid
union, the case must be brought before the Apostolic See,
P
88 S. O., July 1, 1891 (Coil. P. 87 C. 10, X, III, 33.
F., n. 1758): " Monialis aegro- 88 Can. 1110.
tans in concubmatu vivent cum SB S. C. C, Feb. 3, 1725; Lelt-
diaeono." in which case can. 1043 ner, /. c, p. 191.
may be applied. 00 Can. 542,; cfr. S. C •upcr
fl« De Smet, /. c, p. 348. Statu Ret., Jan. .;.;. 1861.
Go >gle
I , Original fro rn
UNIVERSITY OF WISCONSIN
192 MARRIAGE LAW
which will demand proof of non-consummation. After
this has been duly furnished, the party that enters a re-
ligious institute will be told to make solemn profession as
soon as the Holy See commands. After the solemn pro-
fession the marriage is dissolved, because no dispensation
is needed for that purpose.
In the case of a consummated marriage the bond cannot
be severed by solemn profession and neither party can be
received into a religious institute without the other's con-
sent. Supposing the marriage was consummated and the
wife enters a religious institute with papal permission and
the consent of her husband, who remains in the world
and takes the simple vow of chastity ; may he marry
again after the death of his wife? The vow of chastity
seems to be against him ; but this vow must be regarded as
conditional, — conditioned, namely, by the state of mar-
riage and the religious state of the wife. Both conditions
being removed, the husband is free to marry again with-
out a dispensation, unless, indeed, his vow was an abso-
lute one of perfect chastity.91
ABDUCTION (RAPTUS)
E
Can. 1074
§ 1. Inter virum raptorem et mulierem, intuitu ma-
trimonii raptam, quandiu ipsa in potestate raptoris
manserit, nullum potest consistere matrimonium.
§ 2. Quod si rapta, a raptore separata et in loco tuto
ac libero constituta, ilium in virum habere consenserit,
impcdinien turn cessat,
Bl Cfr. Bened. XIV, Dt i'yn. ligiona attempting marriage, ace
Diotc, XIV, 12, 16; Werni, /. c, can. 3388: " Excommunicato latat
IV, p. 564, (1 ed.); can. 1058; itntentia* Sidi Apost. simplititer
can. 1309. Concerning the penal- ruervata."
tics incurred bjr clergymen and re-
od by GoOgle
i ■ j , Original fro m
UNIVERSITY OF WISCONSIN
a
N
CANON 1074 193
§ 3. Quod ad matrimonii nullitatem attinct, raptui
par habetur violenta retentio mulieris, cum nempe vir
mulierem in loco ubi ea commoratur vcl ad quern libere
accessit, violenter intuitu matrimonii detinet
§ 1. Between the abductor and the woman abducted
-
with a view to marriage there can be no (valid) marriage
as long as she remains in the power of the abductor.
§2. If the abducted woman, having been separated
from the abductor and restored to a place of safety, con-
sents to have him for a husband, the impediment ceases.
§ 3. As far as the nullity of marriage is concerned the
violent detention of a woman is equivalent to abduction,
when, namely, a man violently detains her with a view to
marriage, in the place where she dwells or to which she
has repaired of her own accord.
It is not necessary to cite the rather confused Roman
law 92 on the subject, or ancient ecclesiastical discipline,
which has not been uniform." As an impediment of ec-
clesiastical law abduction was formulated by the Council
of Trent." Of course, it is founded upon natural law, in-
asmuch as it affects the freedom of consent. But the
formal side of the impediment is strictly ecclesiastical or
human.
The Code mentions two kinds of abduction: abduc-
tion proper and detention (§3). But both amount to
the same and have the same efTect The requisites are
the following :
I. The object of abduction is a woman, not a man,
although boys, too, may be " kidnapped." It is imma-
terial whether the woman be good or bad, young or old,
tsCfr. Cod. DC, 13; No*. MS! CoU. Cone., XIV, flt4 can. 60);
Nov. 150. cfr. c. 7. X, V, 17; Bernard. Pap.,
w Freiaen, /. c, p. 590; the Summa, eJ. cit., p. SJX.
plainest canon ii that of a synod •* Saat. 94, c 6, d* rtf.
of Meaux, VHIth century (Maui,
►ogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
194 MARRIAGE LAW
rich or poor, marriageable or not, whether betrothed to
the abductor or not. All these qualities are purely acci-
dental.85
2. The abduction as well as the detention must be vio-
lent. Now abduction means removal from one place to
another even though it be in the same town or house,
assuming that the latter has several apartments." De-
tention may take place in the same room, but it must be
violent, i. e., effected by physical compulsion, fraud or
allurement. It does not matter whether it is perpetrated
by the abductor himself or by his accomplices and friends,
even if they be the parents of the woman.91 But violence
naturally supposes that the woman does not consent to or
connive at the abduction, — hence nolentem mulierem,
an unwilling woman. If the woman consented to the ab-
duction, but afterwards repented, there would be no vio-
lence,"" though there may be violent detention. But the
unwillingness to consent must be in the woman herself, in
other words, though the parents may be opposed to the
abduction and to the marriage, if the woman is satisfied,
there is no impediment."
3. The end or purpose of the abduction or detention
must be marriage with the abductor or detainer. If the
motive were other, for instance, merely vesanus amor,1
or satisfaction, or material gain, the impediment would
not arise ; therefore the Code savs : intuitu matrimonii.
This is so true that even if the original intention were
afterwards changed into that of contracting marriage,
BBBoekhn, IV, 6, n. 541 Ga»- 88 Sancbex, I. c, 1. VII, di«p. I*.
parri, I. c, b. 6ai; Weniz, /. c, n. 7 f.
IV, p. 419 (1 ed.); v. Scherer, II, 88 S. C C, March 5, 1714 (Rich-
380. Ur, Trid., p. 35a, n. 90)! A. S. S.t
98 Santi-Leitner, IV, i, n. 159. I, 63; Sanchez, /. c, n. 9.
»t S. C C, June 15, Aug. 27, 1 S. C S., ibid.
1864 id. s. s., 1, 15 ff.); R*0- l*ris,
7* in 6\
a
>Ie
J , Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 1075 195
there would be abduction in the canonical sense. This
also holds true if one abducts his own Rancte, provided
the abduction is perpetrated for the purpose of marriage.2
4. Violent abduction — not detention, because of the
contradictio in adiecto that would follow — ceases as
soon as the woman is in a safe place and freely consents
to the marriage. Freedom of consent is all that is re-
quired, and the impediment is removed as soon as this
freedom is restored.1
CRIME
Can. 1075
Valide contrahere nequeunt matrimonium:
i.° Qui, perdurante eodem legitimo matrimonio,
adulterium inter se consummarunt et fidem sibi mutuo
dcdcrunt de matrimonio ineundo vel ipsum matrimo-
nium, etiam per civilem tantum actum, attentarunt;
2.0 Qui, perdurante par iter eodem legitimo matri-
monio, adulterium inter se consummarunt eorumque
alter coniugicidium patravit;
3.0 Qui mutua opera physica vel morali, etiam sine
adulterio, mortem coniugi intulerunt.
There can be no valid marriage between :
i.° Those who, during the same legitimate marriage,
have committed adultery with and promised marriage to
each other or attempted it, even by a merely civil act
(promdssio cunt adulterio).
2.0 Those who during the same legitimate marriage
have committed adultery together and one of them con-
jugicide (una machinante et adulterio).
9 All the deciiiont quoted In A. nived at or contented to the abduc-
S. S.. I, 57 *•: IX, S'9 *-; XXI, 593*. tion.
XXIII, 451 iT. arc. not to the point, ■Concerning the penalty, see can.
because the girl in the case con- 135J.
jle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
196 MARRIAGE LAW
3.0 Those who, even without adultery, caused the death
of a partner by mutual cooperation, either physical or
moral (utroque tnachinante absque adulterio).
This so-called impediment of crime was acknowledged
by the synod of Tribur, a. d. 896, whose 40th canon was
received into the Decree of Gratian.4 The Decretals B
also mention it, and the canonists have explained it more
elaborately. The reason for making crime an impedi-
ment, Sanchez says,* is to preclude the hope of a future
marriage to adulterous conjugicides. It is founded on
natural law,T though as a formal impediment it is ec-
clesiastical* As it contains a threefold distinct species,
this must be plainly indicated in the petition for dispensa-
tion, as explained under can. 1053.
The first species is adultery with a promise of mar-
riage. This impediment is incurred only if:
1. The act of adultery is complete and formal, that is
if perfect carnal intercourse (copula per se apta ad ge-
nerationem) has taken place, with or without subsequent
pregnancy, and one of the parties at least must be aware
of the married state of the other. James, an unmarried
man, has carnal intercourse with Gemma, who is law-
fully married to Brutus. If James knows nothing of
Gemma's being married, there is no formal, but merely
material, adultery. It does not matter whether Gemma is
separated or civilly divorced from her husband, or
whether the latter had consummated his legal marriage
with Gemma, as long as a valid marriage tie exists be-
tween the two. However, it might happen that a civilly
divorced woman, in our case Gemma, would not regard
D
*C. 4, C. 31. Q- »- Law m 1. 6, Dig. 48. s; I. 4, Cod.
5 Cfr. X, IV, 17; V. 16. IX, 9; Nov. 134. c. ».
• X.. c, I. VII, diip. 79, n. 1. 8 Benedict XIV, " Animt." Apr.
7 The Mosaic Law in Lev. 20, 11, 1757, n. XV.
10; Dcut. 22, 20. Trie Roman
>Ic
£ " ^ , j„ Original from
UNIVERSITY OF WISCONSIN
CANON 1075 197
it as adultery, but merely as fornication, to have inter-
course with an unmarried man. In that case there would
be no formal adultery.
2. The second condition for the impediment is a mutual
promise of, or an attempt at, marriage. This promise
must be a serious, free and mutual promise, the ob-
ject of which is marriage, not " free love," or some-
thing else. Neither would a conditional promise, as
long as the condition is not verified, be sufficient to in-
duce the promise or impediment. Of course, such a
promise is neither licit nor valid. Thus in our case
James (unmarried) may have committed adultery with
Gemma (married) and promised to marry her after the
death of her husband. The latter dies a natural death.9
In that case there would be the impediment of crime if
adultery was committed and a promise of marriage made.
However, if the promise was conditional, for instance,
provided Brutus dies a natural death," or " provided he
leaves an insurance policy of $5000," some authors 10 say
that a conditional promise not verified before the death of
the innocent party must be looked upon as annulling the
promise, and that there would be no impediment. It is
difficult to understand this reasoning ; for certainly a con-
ditional consent is possible and admissible, and on the
other hand the conditions mentioned above are possible
and admissible and may certainly be combined with a
serious,11 externally manifested and mutual promise of
future marriage. Equal to a promise of marriage
(which, of course, need not be made in the form of an
engagement), is an attempted marriage. To attempt
3
>S. C C, March x6, 1746* 79, n. 11 f. Wernz admits a con*
(Richter, Trid., p. j68, n. 109). dirion, but one to be verified before
lOGuparri, I. c, n. 648; Wernz, death; — why' c. 7, X, IV, 17,
/. c, IV, Vol. a, p. 404, ti. 534. does not militate against our view.
11 Cfr. Sanchez, /. c, VII, disp.
Go >gle
^ ,] » Original fro ni
UNIVERSITY OF WISCONSIN
198 MARRIAGE LAW
marriage here means not merely to plan or prepare for
marriage, but to contract marriage invalidly by words
expressing consent or by some other sign involving a
promise of consent. Therefore, even if a civil divorce
was granted, and polygamy could not be charged, and the
marriage was performed before the civil magistrate, the
Church would look upon this second (civil) marriage as
a mere attempt. But this attempt would amount to a
promise of marriage according to ecclesiastical usage, and
would suffice to constitute the impediment of crime, pro-
vided adultery had been committed.
3. There is a third condition to be considered ; the
adultery and the promise of marriage must occur during
the same lawful marriage, perdurante eodem legitimo ma-
trimonio.12 To illustrate: James is lawfully married to
Gemma, but commits adultery with Anna, without prom-
ising to marry her. After Gemma's death he legally mar-
ries Olga, and during this marriage promises to marry
Anna, but does not commit adultery with the latter.
There is no impediment of crime between James and
Anna because adultery and promise must be related to
one and the same marriage. On the other hand, it is im-
material whether adultery precedes or follows the prom-
ise, provided only the promise has not been revoked
before the adultery was committed.18
The second species of the impediment is adultery with
conjugicide perpetrated by one of the accomplices.
1. The adultery, as described above, must precede the
death of the innocent party, but it is not necessary that
it precede the plotting — machinatio mortis.
2. The death of the innocent party must be the actual
result of an act performed by one of the accomplices.
U Cff. cc. 6, 8, X, IV, 7.
II Sanchez, /. c, 1. VII, ditp. 79, nn. 7, 34.
jle
{^ -* v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1075 199
This act may be physical or moral, as, for instance,
counselling, commanding, hiring an assassin, in a word
any co-operation the result of which is death.14 Neither
is it required that, e. g., Gemma (married), who has com-
mitted adultery with James (unmarried) should know
about the act James intends to perpetrate.10 But the ob-
ject of the murder must be marriage with the adulterous
party, or with the party that is made free by th* death
thus caused. Hence if Brutus would kill Gemma sim-
ply because she had committed adultery with James, and
for the sole purpose of revenge, no impediment would
exist.10
3. The adultery and the killing must occur during the
same legitimate marriage. Therefore, in the case
posited, James must kill Brutus after having committed
adultery with Gemma, whilst the latter was lawfully
married to Brutus.
The lawgiver constantly uses the term " per durante
eodem legxtimo matrimonio." A legitimate marriage may
exist also between unbaptized persons, and hence this
impediment would seem to affect non-baptized persons
indirectly, if they wish to contract marriage with a
Christian, or rather, a Catholic. But if the crime is com-
mitted before Baptism, and both parties are afterwards
baptized, the impediment no longer exists, because the
Sacrament wipes out all crimes.17
The third species is conjugicide alone when the death
results from the effective co-operation of the two parties.
1. Adultery is not required in this case.
2. But there must be a conspiracy of two accomplices
against the life of one living in valid marriage. This
14 Mere ratification or approval 1a S. C. C, Sept 28, 1736 (Rich-
rould not be aufficient. t*r, Trid., p. 268, n. 108).
i"C. 1, 3t 7. X, IV, 7. 17 S. C P. F.# Aug. aj, 185a.
ad 5 ct 6 {Colt., n. 1079).
Io< >gle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
200 MARRIAGE LAW
conspiracy must be mutual and actual, not a mere ratifi-
cation or approval.11
3. Death must actually follow this physical or moral
conspiracy.
4. Finally, the intention of killing the husband or wife
must be directed to marriage with the party freed by the
other's death. Though this is an implied condition only,
and is not expressed in the law, it is reasonably presumed,
at least in foro externa}9 For the rest, the intention
can often be shown to have existed from suspicious fa-
miliarity, love letters, presents, etc.
Since this impediment contains a threefold species, it
may be multiplied according to its combination with one
or more of said species.
If both parties are married, this aggravates the cir-
cumstance, although it does not multiply the species.
Since this impediment was set up to preserve the sacred-
ness of marriage and for the public welfare, it follows
that ignorance of the impediment is no excuse from
incurring it. This view is not only extrinsically but also
intrinsically the more probable."
The civil codes of the United States and of England
do not treat crime as an impediment proper, but merely
as a reason for divorce.81
P
CONSANGUINITY
It is not necessary to restate here the Hebrew law M
concerning the various degrees of consanguinity. The
Roman Law may be alleged only in so far as there
lBpanormit. ad c. 3, X, IV, 7, view to be followed in foro «x-
n. 4. ttrno. DispcDHtlon from the and
SB Schmalzgrueber. IV, 7, 2, 55; and 3rd apeciea are granted but
Wernz, J. c, IV, Vol. 2, p. 408, n. rarely. Benedict XIV, " Aestas,"
5*8. b. XV.
SoBoekhn, IV, 7. "- >r: De An- 21 Biibop, J. c, I, | S3. 6$.
velia. IV. 7. p. 188; De Smet, f. c. 21 Lev. 30, az ff.
p. 401, says that tbb is the onl)
.'le
Original fro ni
UNIVERSITY OF WISCONSIN
N
CANON 1076 aoi
is a distinction between the manner in which it reckons
the degrees in the collateral line and the ecclesiastical
computus. The latter says that brother and sister are
related in the first degree of the collateral line, whereas
the Roman lawyers 28 maintained that they are related
in the second degree. It was the Germanic law that
chiefly influenced the ecclesiastical style of computing the
degrees in the collateral line. The Germanic tribes, tak-
ing the human body as representing the distance of the
clans, counted from the head downward to the last knuckle
of the fingers, thus finding seven degrees within which
the prosapia (Sippe) was confined, and marriage within
which was prohibited.24 Pseudo-Isidor strenuously de-
fended these six or seven degrees and gained his point,
until the IVth Latcran Council established the fourth de-
gree in the collateral line as the last for the diriment
impediment.56 Thus the matter stood until now. Our
Code takes off one more degree.
E
EXTENT OF CONSANGUINITY
Can. 1076
§ 1. In linea recta consanguinitatis matrimonium ir-
ritum est inter omnes ascendentes et descendentes turn
legitimes turn naturales.
§ a. In linea collateral irritum est usque ad tertium
gradum inclusive, ita tamen ut matrimonii impedimen-
tum toties tantum multiplicetur quoties communis
stipes multiplicatur.
§ 3. Nunquam matrimonium permittatur, si quod
subsit dubium num partes sint consanguineae in aliquo
as Fr. 1, 3, Dig. 38, 10. six degrees; cfr. Freisen, I. c, 411
24 There is itill a dispute con- ff.; v. Scherer II, 299.
cerning the expression usque ad J 25 C. 8, X, IV, 14.
gradum, whether it includes only
jle
% .J,, Original from
UNIVERSITY OF WISCONSIN
202 MARRIAGE LAW
gradu lineae rcctae aut in primo gradu lineae colla-
tcralis.
§ i determines the diriment impediment in the direct
line : " In the direct line consanguinity invalidates fnar-
riage between all ascendants and descendants, whether
legitimate or natural"
Johannes Andreae says in his "Lecture Arboris,"26
that consanguinity is a bond between persons descending
from the same stock, contracted by carnal propagation.
In other words, it is relationship that exists between per-
sons who have the same blood in their veins. This rela-
tionship is confined within certain limits. There is no
processus in infinitum, else we might say that all men
are related to one another, as all are descended from
Adam and Eve.27 Yet in the direct line there is a certain
indefinite relationship, which the Roman law wisely re-
stricted to the seventh degree, adding that beyond that
limit human nature does not permit man to exist.28 Our
Code does not state any degree, no doubt because it was
deemed superfluous to make an observation as to further
degrees.
We now return to can. 96, which says that consan-
guinity is reckoned by lines and degrees. The line is
nothing else but the series of persons descended from the
same stock. The degree is determined by the number
of generations or persons forming the line. The line has
been likened to a ladder, — the original image of ancestry,
— which contains two sides and a more or less well defined
number of degrees. The line may be direct or indirect,
i. e.t collateral. The former subsists between persons of
whom one is descended in a direct line from the other,
»e Cf. Friedberg, Decrttum Af* 27 Cfr. Smith, Marriage "Process,
gistri Gratiani, p. naj. 189a, p. 115.
28 Fr. 4. Dig. 38, 10.
jle
v ,1,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 1076 203
St
cither upwards in the direct ascending line, or down-
wards in the direct descending line. Add now the degree
or measure of distance in the relationship of one person
to the other, and recall can. 96, § 1 : "In the direct line
there are as many degrees as there are generations, or
as there are persons, not counting the common stock/'
and you will have the following scale :
■
James
Descending Line Ascending Line
1 I
Son (Filius) Father (pater)
2 2
Grandson (Nepos) Grandfather (Avus)
3 3
Great grandson (Prone- Great grandfather (Proa-
pos) vus)
4 4
Great great grandson (Ab- Great great grandfather
nepos) (Abatrus)
James is therefore related to the son in the first degree
EC
of the descending line, and to the father in the same
degree in the ascending line. To the great great grand-
father James is related in the fourth degree, because
there are four generations: great grandfather, grandfa-
ther, father, son, or if you prefer, there are five persons,
not counting the common stock, or the great great grand-
father.
The Code extends this relationship to any indefinite
degree, and to natural as well as legitimate descendants
and ascendants. The term " natural " here means per-
sons born out of legitimate wedlock, no matter whether of
I Originalfrom
1 K K >gie UNIVERSITY OF WISCONSIN
204 MARRIAGE LAW
a fornicarious (strictly natural) or adulterous or sacri-
legious intercourse.
§ 2 establishes the extent of the impediment arising
in the collateral line as follows : " In the collateral line
matrimony is invalid to the third degree inclusively, in
such a way, however, that the impediment is multiplied
only as often as the common stock is multiplied."
Returning to lines and degrees, the reckoning is al-
most the same. The line is called collateral because, al-
though the collateral relations descend from the same
stock or ancestor, yet they differ in this that they do not
descend one from the other, but branch out from the
common stock. Again we must return to can. 96, § 3,
which determines the degrees: "In the oblique (or col-
lateral) line, if both sides of the line are equal, there are
as many degrees as there are generations on one side; if
they are unequal, there are as many degrees as there are
generations on the longer side." Here then we have
an equal and uneven collateral line, i, e. one consisting of
uneven steps. For the unequal line, linea collateralis
inaequalis, is one in which the relationship to the common
ancestor is more distant on the one side than on the other,
and in the latter case the more remote degree determines
the degree of relationship. But it must be added that
the line and degrees are reckoned in the ascending as
well as the descending line. Unfortunately, in English,
there are no names to designate the further degrees.
Here are the line and degrees:
I. Collateral Ascending Line
■
I. Paternal Line
1st degree: Uncle, patruus (father's brother)
Aunt, amita (father's sister)
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
-
CANON 1076 205
2nd degree: Granduncle, patruus tnagnus
Grandaunt, atnita magna
3rd degree : Great granduncle, propatruus
Great grandaunt, proamita
2. Maternal Line
The same names in English, with the addition of pa-
ternal or maternal uncle or aunt. In Latin :
1st degree: avunculus, mater tera;
2nd degree: avunculus tnagnus, matertera magna;
3rd degree: proavunculus, promatertera.
•a
II. Collateral Descending Line
1. Paternal Line
a
a
1st degree: brother, f rater
sister, soror
2nd degree: first cousins, nephew, patrueles, whose fa-
thers are brothers,
first cousins, niece, amitini, whose father
and mother are brother and sister
3rd degree : second cousins, patrueles magni
amitini magni
2. Maternal Line
The same terms in English ; in Latin, first cousins are
called consobrini if their mothers are sisters, and the 3rd
degree or second cousins are called consobrini magni.
c
III. Collateral Unequal Line
John (common stock)
1st degree : brother 1st degree : sister
2nd degree: nephew (first 2nd degree: niece (Gem-
cousin) ma)
3rd degree: grand nephew
(James)
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
206 MARRIAGE LAW
Therefore Tames would be second cousin to Gemma,
or, in Latin, in tertio gradu tangente secundum lincae col-
D
lateralis inaequalis. For there are three persons descend-
ing in the longer line from John, and two persons descend-
ing from the same John in the nearer line ; but according
to can. 96, § 3, the reckoning is made according to the
longer series.
IV. Multiplication of Relationships
Suppose James and John Murphy, brothers, marry
Gemma and Olga, who are first cousins. The children
of these two couples will be related to each other in the
second degree on the father's side, and in the third de-
gree on the mother's. For as brothers James and John
are related through the common father, Murphy, in the
first degree, and consequently their children in the second
degree. Gemma and Olga have the same grandparents
and are therefore related among themselves in the second
degree. Add now the one degree accruing to their chil-
dren, as stated above. Hannah, the daughter of James
and Gemma, and Francis, the son of John and Olga, are
related in the second and third degree, or the impediment
is multiplied because of the multiple common stock.
Now this multiple impediment, arising from a double
common stock, must be expressed in the petition for a dis-
pensation. For instance, two persons are related in the
second degree (first cousins) and their grandparents
were also related in the second degree. Hence they are
related in the second and fourth degree of the collateral
equal line. If two brothers marry two sisters, their off-
spring are related to one another in the double second
degree of the collateral line.89
§ 3 states that " Matrimony is never to be permitted
2» S. O., March II, 1896; Feb. 22, 1899 (Coll. P. P., nn. igao, 304°).
n
.'le
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1076 207
when there is a doubt whether the parties are related in
some degree of the direct line or in the Urst degree of the
collateral line."
This is the practical answer to the query whether the
impediment of consanguinity arising from the direct line,
either ascending or descending, or from the first degree of
the collateral line, is of natural, or of merely positive,
i. e., ecclesiastical, law. The question has been disputed.
While the first degree of the direct line has been con-
sidered by all as forbidden by natural law, regarding the
remote degree of the direct line, and the first degree of
the collateral line (brother and sister), opinions were di-
vided. However, it is a physiological fact that the inter-
marrying of near relatives often produces bad results.
Besides, reverence and piety should prevent near kins-
men from commingling their blood. And, finally, the
social order requires the spread of social bonds beyond the
narrow limits of clans and tribes. New and fresh
branches invigorate the blood and harmonize the diverse
elements of society. Hence Innocent III, although ex-
empting the Gentiles from the observance of the law of
consanguinity in the more remote degrees of the collat-
eral line, would include them in the first degree.80
The intention of the Church is plainly stated in § 3
of can. 1076. She is not wont to dispense in the whole
direct line, nor in the first degree of the collateral line.81
And this holds good also in case the bride or groom is
the natural sister or brother of the other party.83 A
case was proposed to the S. C. Concilii concerning a girl
MC. 8, X, IV, 19; 1'rid., ten. ter. TruJ., 6. 261, n. 98), in which
24. c. 5. dt ref.; Werni. /. c, IV, decision we read that Rome never
n. 413 f. granted dispensations from the
II S. O., Dec. 9. 1874 (Co/I., n. first degree; example: the Duke of
1427, Vol. a, p. 87). Richmond and Mary, daughter of
Bi S. C. C, Dec. 14, 1793 (Rich- Henr/ VIII.
§le
( "* -» -. -J,-. Original from
UNIVERSITY OF WISCONSIN
208 MARRIAGE LAW
St
supposed to be spurious or natural, who was sought in
marriage by a young man. Rumor had it that she was
his sister, born out of lawful wedlock by a domestic
servant of his father. Several witnesses testified to the
fact that the girl was the offspring of the father whose
legitimate son asked her for his wife. Therefore the
petition was answered negatively.38 Infidels married in
the direct line or in the first degree of the collateral line
to converts, would have to separate, unless they were
and are in good faith and greater evils would result from
a separation."
■
Q
affinity
Can. 1077
§ 1. Affinitas in linea recta dirirnit matrirnonium in
quolibet gradu ; in linea collateral! usque ad secundum
gradum inclusive.
§ 3. Affinitatis imped imentum multiplicatur :
i.° Quo ties multiplicatur impedimentum consan-
guinitatis a quo procedit;
a.° Iterato successive matrimonio cum consan-
guineo coniugis defuncti.
This impediment, as described in the Code, is newly
formulated. Its foundation is valid marriage, whether
it be only ratified, or both ratified and consummated, as
stated in canon 97. The impediment can no longer arise
from carnal intercourse outside of marriage.
§ 1 says : " Affinity in the direct line annuls marriage
in any degree; in the collateral line it annuls it to the sec-
ond degree inclusively"
Can. 97 determines the extent of affinity as follows:
<
MS. C. C. Not. 23. 180s (Rich- 34 Lcitncr. I. c. p. 306.
ter, /. c, n. 99).
>Ie
Y ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1077 209
It exists only between the man and the blood relations
of the woman, and likewise between the woman and the
blood relations of the man. It is reckoned in this wise,
that the blood relations of the man are related to the
woman by affinity in the same line and the same degree,
and vice versa. Suppose James is married to Gemma,
and after the latter's death wishes to marry apain. He
cannot validly marry: in the direct line Gemma's mother,
mother-in-law (soerus), or grandmother (prosocrus),
nor Gemma's daughter-in-hw (privigna), nor the latter's
daughter, etc. In the coflateral line James can marry
neither Gemma's sister, nor aunt (anuta), nor niece, nor
first cousin. Conversely, Gemma cannot marry any blood
relation of James in the direct line usque in indefinitum,
and in the collateral line she cannot marry James's
brother, uncle, nephew, or first cousin.
The common English and Latin names for the various
degrees of affinity may be mentioned here :
father-in-law, socer mother-in-law, soerus
son-in-law, getter daughter-in-law, nurus
brother-in-law, sororius sister-in-law, qlos, fratria
a.
stepfather, vitricus stepmother, npverca
stepson, privignus, filiaster stepdaughter, privigna, fili-
astra
The law texts which refer to our subject mention the
following relations between whom no valid marriage can
be contracted: a man cannot marry his brother's wife,M
nor his mother-in-law, nor the first cousin of his wife, nor
his uncle's daughter or stepdaughter, nor any relative
whom he has defiled by carnal intercourse or married."
UC. 11, C 2J, q. a. Innocent in future they ■hould abstain from
III permitted, for a time, the the practice (c. g, X. XV, 19).
newly converted Livonians to marry 88 C. 8, C. 35t q. a el 3, c, ao,
the brother*! wife, according to the C. 35. <v 7, lavora rather of illicit
Mosaic Law (Levir-marriage), but affinity.
*Ie
I , Original from
UNIVERSITY OF WISCONSIN
210 MARRIAGE LAW
Here the old theory of the foundation of affinity is trans-
parent, yet the addition " aut uxor em duxerit " may be
construed as fitting the impediment of the Code. Besides,
the text does not go beyond the second degree, but, like
the Code, limits affinity in the collateral line to the second
degree,' though it admits of no restriction in the direct
line, ascending as well as descending.
§ 2 says that the impediment of affinity is multiplied:
l.° As often as the impediment of consanguinity, from
which it originates, is multiplied;
2.0 By successively repeated marriages ivith blood re-
lations of the deceased consort.
The first reason for multiplication is therefore to be
gauged by can. 1076, § 2, which says that the impediment
is multiplied only as often as the common stock is multi-
plied. This is evident, because affinity supposes con-
sanguinity of either husband or wife, and therefore blood-
relationship naturally reflects on affinity. However, af-
finity does not beget affinity, so that the relatives of the
man do not become relatives of the woman's relatives, or
vice versa}1
The second reason for a multiplied affinity arises from
repeated marriage with a kinsman of the deceased consort.
Therefore if James, after his wife's (Gemma's) death,
would marry her sister (Anna) or her niece (Olga) or
her first cousin, affinity would not be multiplied, because
by the first marriage James became a relative only of
Gemma's sister, niece, or cousin ; and in this consists the
simple impediment of affinity. But if James, after the
demise of Anna, whom he married after Gemma's death.
ST Cfr. O'Hara, The Laws of .', .- to the New Code, Philadelphia,
Marriage simply explained accord- 1918, p. 59-
►ogle
Original from
UNIVERSITY OF WISCONSIN
CANON 1077 211
would marry Olga, a niece of Gemma and Anna, the
impediment would be multiplied. This appears to be cer-
a
tain. The Code says successive, which simply precludes
s polygamy.
Affinity in its whole latitude, whether in the direct
or collateral line, is an impediment of merely ecclesi-
astical law, as Benedict XIV says." However, observes
the same Pontiff, so far it has never happened that
the Pope dispensed from the first degree of the direct
line. Since it is a merely ecclesiastical impediment, those
not baptized are not subject to it. However, according
to a declaration of the Holy Office, after Baptism this af-
finity, though contracted in infidelity, becomes a marriage
impediment, in virtue of which infidels become subject
to the Church and her laws." And since in some mis-
sionary countries it frequently happens that a brother
marries the wife of his deceased brother, the faculty of
dispensing from the first degree in the collateral line was
and is generally granted to missionaries.40
The civil laws of different countries vary as to con-
sanguinity and affinity. The Revised Statutes of Mis-
souri (Sec. 4312) ordain as follows: "All marriages
between parents and children, including grandparents and
grandchildren of every degree, between brothers and sis-
ters of the half as well as of the whole blood, and be-
tween uncles and nieces, aunts and nephews, first cousins,
white persons and negroes, are prohibited and declared
absolutely void ; and this prohibition shall apply to illegiti-
mate as well as legitimate children and relatives."
WAestoi" Oct 11, 1757; De eit„ n. 1104); an interesting case
Syn, Diocc, IX, 13. 4. of the former impediment is re-
MAug. 26, 1891 {Coll P. F„ n. ported in S. O., Sept 16, 1834, n.
1766). a {Coll, n. 784).
40 S. O., Sept so, 1854 {Coll. ^
>Ic
£ ~ ^ ^ i\s* Original from
UNIVERSITY OF WISCONSIN
■
212 MARRIAGE LAW
public propriety
Can. 1078
Impedimentum publicae honestatis oritur ex matri-
monio invalido, sivc consummate sive non, et ex pub-
lico vel notorio concubinatu; et nuptias dirimit in
primo et secundo gradu lineae rectae inter virum et
consanguineas mulieris, ac vice versa.
As worded in the text, this impediment is entirely new,41
since affinity has taken the place of the former impedi-
ment of honesty. The text reads: u The impediment of
public propriety (or decency) arises from invalid mar-
riage, whether consummated or not, and from public or
notorious concubinage ; and it annuls marriage in the first
and second degree of the direct line between the man and
the blood relations of the woman, and vice versa."
Two foundations are assigned for this impediment:
invalid marriage and concubinage.
1. A marriage is invalid if there is a diriment impedi-
ment. Such an impediment may also be established by
the civil power, as long as it does not manifestly clash
with ecclesiastical legislation. Therefore if the State es-
tablishes adoption (see can. 1080), or consanguinity, or
affinity, as an impediment, this impediment annuls mar-
riage, and to obey it becomes a matter of public decency
or decorum. The text simply says : '* from invalid mar-
riage," which certainly affects public honesty. On the
other hand a merely civil marriage would be invalid if an
ecclesiastical impediment, especially clandestinity, would
be in the way.
The text says diat it makes no difference whether the
41 This is also evident from the lack of any quotations in Card.
Gasparri's edition.
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1078 213
invalid marriage has been consummated or not. Hence it
is immaterial whether there was carnal intercourse be-
tween the parties. However, we believe that, from this
viewpoint only, leaving aside concubinage, the marriage
would have to present the species of a marriage, figuram
sen specicm matrimonii; otherwise it would be difficult
to sec the difference between an invalid marriage and
concubinage. But the text, by simply saying, invalid
marriage, supposes that it may be invalid from any im-
pediment, or defect of form, or defect of consent. Not
making a distinction, the lawgiver clearly intends to in-
clude the whole range of invalid marriages.
2. The impediment, we are told, may arise also from
public or notorious concubinage." The Code offers no
definition of concubinage, but evidently adopts the view
of canonists. According to these, concubinage is the re-
tention, either in one's own or in a strange house," of a
woman ** for the purpose of continued illicit cohabita-
tion. Flence the essential point is that the unlawful rela-
tion is maintained habitually with the same person,
whether married or unmarried. If married, the scandal
and therefore the violation of public decorum would be
greater than if she were single. But the concubinage
must be either public or notorious. It is public when the
fact is known to the people, or if the circumstances are
such that one may and must prudently judge that it will
be made known. It is notorious after the final sentence
of a competent judge — ecclesiastical or civil — given ac-
cording to the law** or after a judicial confession of
■
a
■
42 The Roman Law (Dig. 26, 7; with the same person; cfr. also
Cod. V, 27). insisted upon the fact Cath. Encycl. a. v. " Concubinage."
that the concubine must he kept in * 3 Some add: rum soluta, but
one'i own house, hut canonist'- (cfr. others speak of either toluta or
Engel, V, 16, n. 21; Keiffcnstuel, maritala; thus Engel, /. c.
V, ifi, n. 61) only demand re- *4 There might be a difficulty be-
peated or continuous illicit relations tween civil and ecclesiastical law on
oogle
«<""* ^ ^ ily* Original from
UNIVERSITY OF WISCONSIN
2i4 MARRIAGE LAW
guilt. This would be notoriety of law. By fact a concu-
binage would be notorious if it were publicly known and
carried on under such circumstances that it could not be
concealed by any artifice or excused by the aid of the
law.40 This is as far as we can explain the nature of the
impediment, which must occasion many doubts.**
3. In extent the impediment of public propriety is
limited to the first and second degree of the direct line.
Hence James, having been married to Gemma, or living
with her in public or notorious concubinage, cannot
validly marry her mother or grand-mother, nor the lat-
ter's daughter or grand-daughter.
SPIRITUAL RELATIONSHIP
As the name indicates, this impediment is based on a
sort of spiritual adoption, which, as Nicholas I says,
is stronger than legal adoption.47 The same view was
held by the Emperor Justinian and is expressed in a
law of a. D. 530.4B Canonical writers seem to have taken
special delight in enlarging this impediment. The Decre-
tals*9 mention various customs, but adopt a milder prac-
tice if no contrary custom exists. It must be remembered
that, in the Latin Church, Confirmation was not admin-
istered immediately after Baptism, but separately at a
maturer age, and therefore the impediment of spiritual re-
lationship was extended to Confirmation.50 But the Italo-
Greeks of Calabria and Skily were bound by the impedi-
account of the matrimony of con- 40 C. I, X, IV, 11; the terms
science, and in that case the sen- eompatre* and commatrei, which
c
a
tencc of the civil judge could not often occur, signify father and
be followed. mother of the baptized with regard
4fl Cfr. can. 2197. to the godparents, wherefore no
40 Am. Eccl. Rev., 1918, Vol. 58, valid marriage can exist Between
p. 486. the godfather and the mother of
47 C. I, C. 39. q- 3. the child; c. 1, 6, IV, j.
41 L. 36, I a, Cod. V, 4. 60 Tri.l.f sen. 24, c. 2, de ref.
'rtnnlo Original from
,008' r UNIVERSITY 0FWI5C0NSIN
■
pi
CANON 1079 215
ment arising from both Baptism and Confirmation.01
The Code has considerably reduced the extent of this im-
pediment, which now arises from baptism only.
Can. 1079
Ea tantum spirituals cognatio matrimonium irritat,
dc qua in can. 768.
The only spiritual relationship that annuls marriage is
that mentioned in can. 768.
It arises only from Baptism and exists between the bap-
tizing minister and the baptized person and the baptized
person and the sponsor.
Therefore no valid marriage can be contracted:
i.° Between the baptizing minister and the baptized
person ;
2.0 Between the sponsor and the baptized person.
But the parents do not enter into spiritual relation-
ship. Neither the father nor the mother nor the consort
of the baptized person contract any spiritual relation-
ship with him, because they cannot be sponsors at all.81
The conditions required for the impediment are the
following :
1. The Baptism must be valid, because otherwise there
would be no foundation for a spiritual relationship.
2. If Baptism is conferred conditionally, the sponsor
contracts spiritual relationship only in case he was spon-
sor also at the former Baptism ; but if he is sponsor only
at the conditional Baptism, he does not incur the im-
pediment."
It matters not whether Baptism is administered sol-
emnly or privately, if the sponsor or minister perform
Si Benedict XIV, " Eui pasto* 02 Can. 765, 3'.
ralii, May 26, 174a, I VIII, n. VL " Can. 763. I *.
►ogle
£ " -. v J„ Original from
UNIVERSITY OF WISCONSIN
-
■■"■
216 MARRIAGE LAW
their parts properly. However, if Baptism was con-
ferred privately without sponsors, and a sponsor was
employed only when the solemnities were supplied, the
sponsor does not by his assistance at the latter contract
the impediment.54
3. The sponsors must be designated or appointed as
such either by the one to be baptized, or by his or her
parents or guardians, or if these fail, by the minister."
Therefore the formal consent of the sponsors is re-
quired; but if they do not formally and manifestly refuse
when appointed, their consent may be lawfully pre-
sumed. The reason is that the sponsors must take upon
themselves certain duties, such as to procure the Christian
education of the child in case the parents should die or
neglect their obligation."
4. The sponsor must, at Baptism, hold or touch or
receive the baptized person from the baptismal font or
the hands of the minister." In other words, he must
perform the physical act which is generally and by cus-
tom considered as the conventional sign of sponsorship.58
5. If the sponsor acts by proxy, which is permissible,
his representative must act like the sponsor, but spiritual
relationship is contracted not by the proctor, but by the
one whom he represents.80 Whether the proctor needs
to be endowed with the same qualities as the sponsor him-
self, is not stated in the Code. But we hardly believe that
BO
non-Catholics would be admissible as proctors.
64 Can. 76-'. 8 2; S. C. C, May 68 S. 0., Sept. 15. 1869 (Colt.,
16, 1711 (Richter, Trid., p. 266, n. n. 1347): Pignatelli, Consult, t.
106): The pastor accidentally for- VII, conj. 98, n. 7 f.
got to write down that the godfather 67 Can. 765, 50.
assisted only at the subsequent r.8 S. C. EE. et RR. Regenta.
solemnity, but the sponsor could 1592-93. P. 1. P- 39°.
prove the fact, and therefore the no Can. 765, 5°; S. C. C, March
S. C. declared that no impediment 15, .1631; Sept. 13, 1721 (Richter,
existed. Trid., p. a66).
65 Can. 765, 4'- M Cfr. can. 1657, I 1.
ioi >gle
f^ ^ s.r*\s± Original from
UNIVERSITY OF WISCONSIN
CANON 1079 217
%
6. The sponsor must not belong to any heretical or
schistnatical sect, or be excommunicated by either a
condemnatory or declaratory sentence, or suffer from in-
famy of law, or be excluded from legal actions, or be a
deposed or degraded cleric.01 The Holy Office decided
that Baptism should be conferred without sponsors rather
than with heretical or schismatical ones.82 If of two
sponsors one would be a non-Catholic, he would assist
merely as a witness, not as sponsor.68 From this the con-
clusion may be easily drawn that non-Catholics, although
baptized and apparently acting as godparents, do not con-
tract the impediment, as it is of merely ecclesiastical law.
7. Finally it must be noticed that this impediment can
not be multiplied. Therefore, even if one should be
sponsor to several children of the same family, or even
of a whole town, the spiritual relationship cannot be mul-
tiplied.84
The Commission for the Authentic Interpretation of
the Code decided, June 2-3, 1918, that the spiritual rela-
tionship contracted before Pentecost 1918 ceases to be an
impediment further than stated in can. 768 and can.
1076 of the Code.65 Therefore there is no longer a rela-
tionship between the parents and the baptizing minister,
nor between the sponsors and the parents of the baptized
person, nor any one arising from confirmation, nor any
double relation.
LEGAL ADOPTION
The Church accepted adoption as expounded in the
Roman Law and made it an ecclesiastical impediment for
all countries in which it contained at least the essential
fll Can. 765, a9. «* Formerly it waa multiplied, if
62 May 3, 1893 {Colt. P. F., n. the same sponsor stood for the same
1831 and passim). child at baptism and confirmation.
MS. 0., Jan., 1763 (Coll., n. «o A. Ap. S„ Vol. X, 346.
447)-
£ * -» v J„ Original from
UNIVERSITY OF WISCONSIN
2i8 MARRIAGE LAW
elements of adoption proper." Hence the codes of dif-
ferent countries had to be inspected as to their agree-
ment with the substance of this juridical institution.
The Decree of Gratian " as well as the Decretals •• pre-
suppose the Roman notion of adoption.
Adoption was said to imitate nature,88 because it is a
legal act by which persons are assumed as sons and daugh-
ters, nephews or nieces, who are not such by nature.'0
It was natural to bestow on such adopted children all
the rights of parentela. The Romans distinguished per-
fect or complete from incomplete adoption, calling the
former adrogatio, and the latter simply adoptio. By
adrogatio one entered into perfect and complete depen-
dance upon, or came under the paternal power of, the
adopter. This was the case if a Roman youth who was
of age or sui iuris, was asked (rogatus) whether he was
willing to pass into the power of another. Adoption in
the strict sense comprised only such children as were not
fully emancipated from the power of their natural par-
ents, and hence was not followed by all the consequences
attached to adrogatio. Both processes required certain
conditions, which had to be complied with in order to ob-
tain the civil effects. Chief among these conditions was
(a) that either the supreme authority for adrogatio or the
magistrate for adoptio sanctioned the act of adoption ;
(b) that the adopting person was capable of exercising
the paternal power, i. e., no eunuch, and at least eighteen
years older than the adopted; and (c) that the adoption
was made without conditions and personally, t. e.t not by
proxy.71
«o Benedict XIV, De Syn. Dioece., TO Voet, Comment in Pa%d., I,
IX, io, 5. 7. i, t i. p. 5a.
•7 C. i, C. 3". q. 3 (Nicholas I, n See Si 4. 9. ■'«*'-. I. "i I-
Ad Consulta Rutgarorum'). 5, Cod VIII, 47; II. 25, 34, Diff-
WC. nn. X, IV, u. i, 7.
60 Sec I 4, Inst,, I, 11.
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gk
CANON 1080 219
How far the degrees prohibiting marriage were ex-
tended is uncertain. But the legistae of the middle ages
as well as the canonists ra distinguished legal paternity,
legal fraternity, and legal affinity. The first, they held,
annulled marriage between the adopting parents and the
person adopted and the latter's children to the fourth
degree. Legal fraternity annulled marriage between the
adopted person on the one hand, and the children of the
adopter on the other, because these were considered by
law brothers and sisters of the adopted. Legal affinity
extended to the adopter and the wife of the adopted and
to the adopted and the wife of the adopter.
This was the status of legal adoption, so far as we
can see, under the Roman law. In countries which em-
bodied these notions in their respective codes, the Church
held adoption as binding in the ecclesiastical court, no
matter whether the civil law had or had not directly en-
acted it as a diriment impediment. Let us now hear what
the Code says.
E
Can. 1080
Qui lege civili inhabiles ad nuptias inter se ineundas
habentur ob cognationem legalera ex adoptione ortam,
nequeunt vi iuris canonici matrimonium inter se valide
contrahere.
Those who are by the civil law considered as incapable
of contracting tnarriage with each other on account of the
legal relationship arising from adoption, are, by canon
law, incapable of contracting marriage validly.
Two points are brought out very distinctly in this
canon : ( 1 ) The Church accepts the civil laws concern-
ing adoption in each country; (2) the extent of these
TB Bernard. Pip., .Sum-no, wd. cit., pp. 161, 298; Tancred, ed. rft.,
p. 38 ff.
1 Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
220 MARRIAGE LAW
laws and their invalidating character does not depend on
their conformity with the Roman law, but solely upon the
wording and intention of the law as it exists.
Therefore, where the law sets up adoption as a merely
prohibitive (impedient) impediment (can. 1059), the
Church also regards it as such ; whereas in countries
which treat adoption as a diriment impediment, the
Church binds the faithful to the same extent as the civil
law. Whether a country admits all three : legal paternity,
legal fraternity, and legal affinity, or one or the other
only, depends on the wording of the civil law, and it is
wrong to assert that the impediment exists only between
the adopter and the adopted." Note, however, that the
civil law must not only describe and lav down the rules
for adoption, as is done, for instance, in New Jersey,74
but must explicitly state that the adoption, as described,
constitutes a diriment impediment, otherwise, since im-
pediments are restrictive of human liberty, adoption
must be regarded either as prohibitive or a merely
penal law.
With the exception of New Jersey, our United States
care little about this impediment. However, as immi-
grants may come here from countries where adoption is
established as a diriment impediment, we will mention
some relevant enactments.
a
Belgium does not explicitly set up adoption as an im-
pediment, though it acknowledges it as conformable to
the Roman law (Cod. Civ., art. 343).
The same is true concerning Austria (Cod., art. 179-
I 186).
Germany (Bilrgerl. Gesetsbuch, art. 459) regards legal
paternity as an impediment.
-
<
ti That O'Hara, /. c, p. 60.
74 Smith, Marriage PfOCttg, p. 127.
*Ic
J ^ Original from
UNIVERSITY OF WISCONSIN
■
9
CANON 1080 221
Italy (Codice Civile, art. 60,202) treats legal adoption
as an explicit impediment.
Spain (Codiyo Civil, art. 173-180-184) establishes legal
paternity and legal affinity as impediments.
Switzerland (Zivilgesetzbuch, art. 100, 264, 268) treats
legal paternity and legal affinity as impediments.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
CHAPTER V
MATRIMONIAL CONSENT
After setting forth the divine and positive laws which
negatively determine the capability of persons for the
married state, the Code proceeds to consider the personal
D
cooperation of the contracting parties. This is given in
the matrimonial consent. Under the same heading cer-
tain obstacles to valid consent are pointed out which were
formerly treated as impediments. They are : error, ser-
vile condition, violence or fear.
The consent may be given by proxy or through an in-
terpreter, who are therefore also mentioned in this chap-
j ter.
THE CONSENT ITSELF
u
Can. 1081
§ i. Matrimonium facit parti urn consensus inter per-
sonas iure habiles legitime manif estatus ; qui nulla
humana potestate suppled valet.
§ 2. Consensus matrimonialis est actus voluntatis
quo utraque pars tradit et acceptat ius in corpus, pcr-
petuum et exclusivum, in orcline ad actus per se aptos
ad prolis generationem.
3
ft
This canon merely restates the Roman law, which says :
Consensus facit nuptias." The theory maintaining that
the copula was required to render the marriage complete
has no foundation in law. Hence our text says that
222
ogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
-'
CANON 1082 223
marriage is effected by the legitimate manifestation of
the consent of parties who are qualified thereto by law ;
and this consent cannot be supplied by any human power.
The matrimonial consent is an act of the will by which
the parties deliver and accept the exclusive and perpetual
right to each other's body for the purpose of performing
acts apt for the procreation of children.1
Can. 1082
§ 1. Ut matrimonial is consensus haberi possit, ne-
cesse est ut contrahentes saltern non ignorent matri-
monium esse societatem permanentem inter virum et
mulierem ad filios procreandos.
§ 2. Haec ignorantia post pubcrtatcm non praesurai-
tur.
In opder that matrimonial consent be possible, it is
necessary that the contracting parties at least be not
ignorant that marriage is a permanent union between man
and woman for the purpose of begetting children. Such
ignorance is not presumed in those who have reached
puberty.
These two canons establish the absolute necessity of
the matrimonial consent, its physiological and physical
object (can. 1081), and its bearing on the mental condi-
tion of the contracting parties (can. 1082).
1. Necessity of the Matrimonial Consent. The matri-
monial consent is said to effect the marriage, because it
is the will which, proceeding from reason, produces the
contract between two persons endowed with reason and
will. Hence carnal intercourse is a concomitant ad-
junct, but not the cause of the marriage; otherwise forni-
cation might be called lawful. Or, as St. Ambrose ex-
1 L. 30. Dig. 50. 17; U ". 1%. J j, t] 1. 15, 1%. 35. 1.
■
Q
ogle
— , 1,, Original fro ni
UNIVERSITY OF WISCONSIN
224 MARRIAGE LAW
presses it : " non enim dcfloratio irirginitatis facit coniu-
gium, sed pactio coniugalis" 2
This consent — duorum in idem placitum consensus*
— must be given by two persons who are qualified by
law to contract marriage. The divine, the natural, and
the positive law of the Church have set up certain im-
pediments which have been sufficiently explained in the
preceding chapter. Persons who are either relatively or
absolutely bound by any of the diriment impediments
cannot give an absolutely valid consent, although they
may consent conditionally, — provided the impediment
be removed.
The term hire habiles has a wider scope. It implies the
natural capacity of externally manifesting the consent.
To speak more precisely — the consent must proceed from
a deliberate act of the will and be manifested externally,
because, unless so manifested, it cannot be apprehended
by men, who are bourrd to, and led by, the senses. There-
fore, the Code says, " legitime manifestatus" which prop-
erly means, manifested according to the requirements of
the law, or, in other words, in the prescribed form. As
the form is more closely described in the next chapter,
we may here take '* legitimately manifested " in the sense
of any appropriate manifestation, which according to
common custom would be considered a marital consent.
The conditions erf the consent may be explained as
follows :
a) Since the consent must proceed from a deliberate act
of the will, and the latter supposes the intellect to be in a
sound or normal condition, it is evident that the parties
must be able to perform a human act, that is to say, they
must be in actual possession first and above all of the fac-
2 C. 5. C. 27. q. a; cfr. cc. 1-6 8 Cfr. the dictum Grotia*i in C.
ib; De Smet, J. ft, p. 73 £. 39, q. 1.
5 ( Inruilp Original from
■OOgie UNIVERSITY OF WISCONSIN
CANON 1082 225
ulties of the mind. One not compos sui, or in a hypnotic
state, or under the influence of narcotics cannot possibly
perform a human act. An interesting case is that solved
by the S. C. Concilii in a Strasbourg case, 1907. The
bride had been in an insane asylum two years before the
marriage, but had been discharged as apparently cured.
On her wedding day she commenced to act queerly, and
on the second day after the marriage she had to be sent
back to the asylum. The marriage was declared invalid.4
Here it may be well to note that the so-called incubation
period preceding the outbreak of a disease has also to be
considered. What are styled Ixicida itttervalla, i. e.f mo-
ments of apparently normal consciousness, must be taken
with a good grain of salt and not easily admitted.
b) The consent is given by the will, and must be sin-
cere, i e., given without dissimulation, and serious. Con-
cerning, the latter quality, it may be safely said that the
matrimonial consent is never presumed to be given jo-
cosely, because no one in his senses can be supposed to
joke in such an important matter. But it may happen
that there is simulation. The following case was pro-
posed to the Roman Court in 1883 and 1885.0 James
contracted marriage with Gemma before the civil and the
ecclesiastical court of Paris. But he did not love Gemma,
but Olga, with whom he maintained illicit intercourse
before and after the marriage. The reason why he mar-
ried Gemma was to obtain a dowry of $50,000. He went
through the formalities of the wedding, but planned to
get rid of Gemma. He administered poison to her in a
summer resort, but Gemma, though suffering from the
effects for more than six months, recovered and instituted
-
* S. C. C. Nov. 33, 1007 {And. B Cfr. A. S. S., V i8, 14 ff.
Ecci., t. XV, 478 ff); July 7. 188,
(A. S. S., t 16, 262 ff).
Q
"■
1 .. h >gle
,| 4 Original fro m
UNIVERSITY OF WISCONSIN
226 MARRIAGE LAW
proceedings in the ecclesiastical court. Her lawyer suc-
ceeded in having the marriage declared null on the plea
that James had had no intention of contracting an indisscr-
luble marriage, and therefore rejected the bonum sacra-
tnenti. Yet, since a feigned consent may not be presumed,
but must be proved, the lawyer had to furnish proofs that
James really intended no marriage with Gemma. San-
chez8 offered the solution. This author, after having
proved T that the matrimonial consent must implicitly be
directed to, or at least not against, the indissolubility,
says that only moral, not metaphysical, certitude is re-
quired to prove the fact of feigned consent. This cer-
tainty, not being defined by law, must be such as would
satisfy a prudent man. Thus probable conjectures may
produce moral certainty. The lawyer in our case proved
from preceding, accompanying, and subsequent circum-
stances that James never intended to marry Gemma, but
merely wanted her dowry. His love letters to and rela-
tions with Olga confirmed his intention to get rid of
Gemma. Hence the feigned consent. The S. C. Concilii
confirmed the sentence of the ecclesiastical court declar-
ing the marriage to be invalid.
c) The consent of both parties must be morally simul-
taneous. It is not required that it be physically one. In
any contract moral connection is sufficient, and the marital
consent does not differ in this regard from other con-
tracts, otherwise it would be impossible to employ a proc-
tor. But a simultaneous act is required so that it be-
comes evident that the consent of one party endures and
is not revoked at the time the consent of the other is
given.
How much time may intervene between the consent
*/}# Mat., I. II, 'Hap. 45. I 4* T Ibid., 1. II, di«p. 29, n. is.
Q
-"■
oogle
% .J,., Original from
UNIVERSITY OF WISCONSIN
CANON 1082 227
of the one and that of the other party cannot be precisely
stated.8 A proximate measure may be derived from the
repetition of the banns after six months.9
The marital consent, unlike that required for certain
civil contracts, cannot be supplied by any human power,
— parents, or guardians, or magistrates, or by the Pope.10
This follows from the very nature of marriage. For no
one can claim power over a thing that depends on the
free will of another, but by marriage the parties obtain
power over each other's bodies, and this must be given
by free and personal consent.11
2. This leads us to § 2, which determines the physio-
logical and physical object of the matrimonial consent.
The physical object is the body, or rather the right to
the bodies of the contracting parties. This right is de-
termined by the perpetual and exclusive union between
both parties and by the primary end of marriage, which
is the procreation of offspring. Note that the two prop-
erties and the end of marriage are mentioned together.
Hence if both parties intended and expressed the inten-
tion in some way or other to enter upon a mere concu-
binage, there would be no marriage. But such an in-
tention must be proved in the external forum. A proof
would be if a custom existed, such as that in Victoria
Nyanza, where men buy women like chattels, for the mere
a
sake of concubinage, either for a definite or for an in-
definite time." In Turkish Armenia some men went to
the Turkish magistrate apparently to contract a marriage,
but in reality to have a concubinage sanctioned. It was
decided that if both parties went to the officer with the
fl Sanchez, J. ft, I. II, diip. j«, 11 S. Thomas, Suppl., Ill, q. 45.
admits a seven or two years' in- art. i.
icrv.il; sec, however, our text. 12 S. O., April 3. 1880, ad 2;
fi C%wl 1030, I a. Aug. ie», 1857, ad 5 (Coll, on.
10 Pius VI, July ix, 1789. 1700, 1147).
jle
/"^ -» v J„ Original from
UNIVERSITY OF WISCONSIN
228 MARRIAGE LAW
same intention, namely to cover their concubinage, al-
though they professed to contract marriage, no marriage
resulted; but if only one party had that intention and
lured the other into making such a contract by fraud
or deceit, the marriage was valid in foro externo, and the
guilty party must renew the consent, so as to supply his
previous faulty intention.18
The question may arise, what sort of knowledge con-
cerning the qualities and the end of marriage is required
to make the contract valid? Obviously, the positive wish
(animus et voluntas) to contract a dissoluble marriage
amounts to a denial of the essential quality of permanency,
and therefore, where such a wish and intention exist, no
real marriage is contracted. But if only a vague notion
of divorce existed in the mind, or the parties, though ad-
mitting polygamy or divorce, would intend to contract
marriage without a positive and efficacious assertion of
the right — as they claim — of divorce, the marriage
would be valid.14 Note that the question solely concerns
the intellectual conviction of the contracting parties.
How a condition properly so-called would affect the
matrimonial consent, will be explained under can, 1086.
3. Can. 1082 is intimately related to § 2 of the preced-
ing canon. It determines the mental condition of the
contracting parties by saying that they must at least be not
ignorant of the permanent union between man and woman
for the primary purpose of marriage. This is cautious
language, made necessary by the different views of in-
dividuals and the varying customs of countries. The in-
dissolubility of the marriage bond does not flow from the
primary natural law, which is the same in all and un-
changeable,16 but from the secondary natural law, which is
is S. O., Aug. 19, 1B57 C/. tX is S. Thomas, MI, q. 94. art 4 f.
14 ibid.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 1082 229
a scries of conclusions drawn from the primary law.
Hence it is that the pristine ideal of marriage may be ob-
scured in the minds of men, especially in half-civilized
countries and in civilized countries which admit divorce.
Education and social surroundings influence the judg-
ment of men regarding marriage. The wording of the
text is negative and merely excludes complete ignor-
ance ; hence it is not required that the contracting parties
should realize the full extent of indissolubility or that
they should be aware of all the details of conjugal life.
§ 2 of can. 1082 says that ignorance may not be pre*
sumed after the age of fourteen in boys, or twelve in girls.
But though nature usually teaches them what mar-
riage is after that age, yet if one of the parties would
be found incapable of giving a real matrimonial consent
because of a defective mind or lack of ordinary discre-
tion, the marriage could not be judged valid; because in
such matters truth, not presumption, is always obeyed.1'1
A girl of twelve years and nine months was married to
a man in the diocese of Ventimiglia. But though she
had reached the age of puberty, she did not know what
marriage meant and required, and hence the parish priest
'objected to the union. The Vicar-General, however,
when informed of the facts, allowed the wedding and
the pastor assisted. After eight months the man left
for a protracted absence, and the girl married before
the civil court. The case was brought to Rome and
the S. C. Concilii decided against the validity of the mar-
riage because, as it appears, the girl lacked the neces-
sary discretion.17
But even after puberty is reached there may be an er-
16 Gonzalez, lib. IV decret.. th. 17 S. C. C. Jane 13. 1885: May
z, ad c. 2, n. 5- ig> 1888; Aug. 18, 1888 (A. S. S.M
t. ai, 16a ff).
gte
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
230 MARRIAGE LAW
roneotts opinion concerning the primary end of marriage,
viz., the bringing forth of children. We mean strictly
an erroneous opinion, not a condition formally agreed
upon to avoid the purpose of marriage. Gemma mar-
ried James, but refused to consummate the marriage,
saying she would never have married, had she known of
the copula. When the case was brought before the Ro-
man Congregation, no direct answer was given, but a dis-
pensation was granted super matrimonio rato.1B This
action is quite intelligible, for the girl was of age, nor-
mally developed in mind and body, and had not made
any positive contrary agreement or act of the will be-
fore or at the marriage.
Finally we may add a word concerning the civil cere-
mony which in some countries is prescribed by law.
How are Catholics to regard it? In itself the ceremony is
not forbidden. But the Church can not accept the dec-
laration made before a civil magistrate as the matrimonial
consent which effects the marriage tie. Therefore a dis-
tinction must necessarily be made. If the matrimonial
consent was lawfully given before the civil ceremony
a
took place, the marriage is complete and the contracting
parties are entitled to exercise the matrimonial rights.
When they go before the civil magistrate to declare their
consent, this declaration is merely a civil ceremony and
adds nothing to the validity of the marriage already con-
tracted.18 But if the civil ceremony precedes the matri-
monial consent to be lawfully given, Catholics are not
allowed to have the intention of contracting marriage
by the civil ceremony, nor can they validly give consent,
no matter what the form prescribed. Consequently they
a
18 S. C. C, Dec. 18, 1869 (A. 5. gen**." Feb. 2, 1744. fi 10; S. O.,
S., t 5, 653 *0. Oct. 1, 178s (Coll., n. 580).
19 Benedict XIV, " Inter omni-
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1083 231
are not married nor entitled to the exercise of conjugal
rights until they are married before the Church.20
error — servitude
Can. 1083
§ 1. Error circa personam invalidum reddit matri-
monium.
§ 2. Error circa qualitatem personae, etsi det causam
contractu!, matrimonium irritat tantum :
i.° Si error qualitatis redundet in errorem personae;
2.0 Si persona libera matrimonium contrahat cum
persona quam liberam putat, cum contra sit serva, ser-
vitute proprie dicta.
§ 1. Error concerning the person renders a marriage in-
valid.
§ 2. Error concerning the quality of the person, even
if it is the cause of the contract, renders the marriage in-
valid only:
i.° When the error about the quality amounts to an
error about the person;
2.0 If a free person marries one whom he supposes
to be free, but who in fact is a slave in the true sense
of the word.
This canon contains what were formerly called the
two impediments of error and servile condition. Error
is here considered as exclusively concerning the contract-
■
ing parties, not the sacrament of matrimony as such.
The latter was dealf with partly in the preceding canon,
and shall partly be dealt with under can. 1084.
I, Error is a state of mind in which one mistakes one
a
thing or person for another,21 as, for instance, when we
W Benedict XIV, " Rtdditae Nobis," Sept 17. 1746 {Bull.. Prati, 1, III,
46a f.). 11 C. 6, C. aa, q. a; C. a9, q. x.
G 1 Originalfrom
OOglL UNIVERSITY OF WISCONSIN
232 MARRIAGE LAW
think A is B or a crowbar is a poker. In the first-men-
tioned case we have what is called an error about the
person. Now since marriage is effected by the consent of
the contracting parties, and the will can desire nothing
except what is proposed to it by the intellect, it is evident
that such a mistake affects the very substance of the mat-
rimonial consent." Gratian sets forth the example of
Lia and Rachel, but his solution is rather quaint.28 He
could have simply answered that an error about the sub-
stance of the contract nullifies the consent.2* It would
be an error about the person if James married Olga, when
he intended to marry her sister Gemma. Such errors
are rare, because it is seldom that two sisters resemble
each other so closely that they can hardly be distin-
guished." An error about the person may more easily
happen where marriage is celebrated by proxy. Such a
case happened in China, in 1906, and was solved by the
S. Rom an a Rota in 191 3. Wang, a widower, wished to
marry again. His son Paul proposed to him a widow,
Lu Cecilia, of good character and fair looks. But she
had no desire to remarry. Whereupon Paul asked Sang
Anastasia, an old and ugly wench, to marry his father.
She was ready to comply. All this was done by a
mediator, John Yu, who informed Paul of the substitu-
tion. But Paul never mentioned it to his father, and the
marriage took place in church. When, after the wed-
ding, Wang saw his wife for the first time, he was
greatly disgusted. The S. R. Rota naturally decided
against the validity of the marriage."
D
tlC. 14. X, IV. 1 1 1. 8, Cod. ss Such an incident happened
I, i3: " cum crrantis voluntas nulU some yean ago in Missouri; the
tit," fr. 57, Dig. 44, 7. bridegroom himself was puzzled.
is Gen. 19. C. aa. q. I. *• S. R. R., April 16, 1013 CA.
"-.
MBoekhn, *. c, IV, if n. 33. Ap. S., V, 37a ff.).
§le
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1083 233
2. Error about the qualities of the other party is of
more frequent occurrence. However, here a distinction
must be made. It may be that the quality concerning
which one is in error affects the person merely in an ac-
cidental tvay. For instance, Joseph Buro, a citizen of
Rruxelles, who went by the name of Buro de Chancartier,
married a baroness of Leyden, by name of Theresa Kraus,
a rich widow. She protested at the trial that she would
never have married Buro had she known that he was not
of the nobility. This was a purely accidental quality,
and no error that reflected directly or indirectly on the
person, and therefore the marriage was declared valid.27
From this it may be seen that a mistake about an acci-
dental quality ( wealth, intelligence, domestic habits,
peaceful disposition, health, even concealed pregnancy
caused by another man, etc.) does not alter the substance
of the marriage-object, which is the person itself.
But a quality may be substantially equivalent to the
person, and form the sole and exclusive reason deter-
mining the other party to marriage. Bernardus Papi-
ensis puts a case in the following terms. There comes
a farmer's daughter, whom James docs not know at all.
She tells him : "I am Mathilda, the daughter of the
king of Apulia; wilt thou take me for thy wife?" James
smilingly answers : " I will," because he had heard of
Mathilda, and is willing to marry her, but not the farm-
er's daughter. The marriage is invalid, because though
James personally knew neither, the quality of royal rank
moved him to marry the person who pretended to be
Mathilda.28 Another case : Peter marries Antonia, whom
he believes to be the first-born daughter of Count N.
27 S. C. C.f Aug. 7. 28, 1745 C. C, Aug. 9. 1817: May 37. 1820
(Richter, Trid.t p. 344, n. 83). A (Richter. /. c, n. 84).
-
similar case was decided similarly, 2B Summa, ed. Laspcyres, p. 293.
because the quality was wealth; S.
§le
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
234 MARRIAGE LAW
He intends to marry the first-born daughter of Count N.(
believing that Antonia, here and now present, is that
daughter. In the first case the marriage is valid, in the
second case it is invalid, because the consent of Peter
is directly and exclusively directed to the first-born
daughter of the count.28 This case can, practically
speaking, occur only when marriage is contracted by
proxy.80 The error must be strictly proved, otherwise,
on account of the favor iuris (can. 1014), the marriage
would be reasonably held to be valid.
3. Error as to the servile condition of the other party.
If a person who is free, contracts a marriage with one
who is a slave, not knowing that he or she is a slave,
this error or misapprehension annuls the marriage. If
the servile condition of the one party was known to the
other, there was no error or mistake, and the marriage was
valid."
But the Code says : servitute proprie dicta, slavery prop-
erly so-called. This, according to Roman law," exists
when one person is subjected, against nature, to the owner-
ship of another, either by fact or birth. The slaves were
called mancipia when regarded as a piece of property;
venules when regarded as a saleable commodity ; famuli
when regarded as domestics; servi when regarded as
bound to obey the commands of the master. These
words in ordinary language were interchangeable and em-
ployed without distinction. From this strict notion must
be distinguished another, that of adscriptii, who belonged
to a certain property or estate and could be sold only
with the land.88 The Church, as is well known, mitigated
"-.
29 Clericatua, Deeisiones dc Ma',., Zt Cfr. Ramsav-Lanciani, Manual
cd. Venet., 1725, decis. 19, d. 30. of Romen Antiquities, 1901, p. 114;
•0 Cfr. Wertu, IV, Vol. a, p. 14, I a, I***-. I, 3-
n. «3- Bl Maschat, Prae cursus Juris C«-
ai Cfr. c. 4. C. ao, q. a; cc. a, nonici, 1760, p. 15.
4, X, IV, 9; Smith, Marriage Proc-
tee, p. 70.
gle
j ^ Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 1084 235
the condition of slaves and admitted them to a true and
legitimate marriage, but retained the impediment of ser-
vile condition in the form stated above. Though it has
vanished in civilized countries, slavery still exists in
Africa.84 Since servile condition is not an impediment
except when it is the subject of an error, no dispen-
sation from it can be granted, but the error must be re-
moved and the matrimonial consent renewed, unless the
circumstances of the case call for a sanatio in radice.
error as to the nature of marriage
Can. 1084
Simplex error circa matrimonii unitatem vcl indis-
solubilxtatem aut sacramentalem dignitatem, etsi det
causam contractu^ non vitiat consensum matrimoni-
alem.
A simple error as to the unity, indissolubility, or sac-
ramental character of marriage, even if it be the cause of
the contract, does not vitiate the matrimonial consent.
A simple error is one that proceeds merely from in-
tellectual apprehension, and has no formal condition or
stipulation attached to it, nor a formal act of the will
excluding a substantial feature of marriage (can. 1086,
§ 2). The Code emphasizes this by adding: "if si det
causam contractui." This signifies that the parties had
the intention of contracting a union not in conformity
with the notion of Christian marriage. However, in that
case, especially if the parties had the intention of enter-
ing upon a concubinage, a distinction is necessary. If
both parties had this intention and expressed it to each
other, even though there were no mutual agreement,
84 Cfr. S. 0., June ao, i88fi {Coll, n. 1293, Vol. I, p. 7*t *•)■
1 by Google
I , Original fro m
UNIVERSITY OF WISCONSIN
236 MARRIAGE LAW
the marriage would be invalid, for their intention was di-
rected towards a mere concubinage. On the other hand,
if the intention is occult and entertained only by one party,
though the marriage may be judged invalid in foro in-
ferno, yet in foro externa the judgment would favor
validity.83 Such an intention depends largely upon the
customs and views of the people or race to which the
couple belongs. Therefore the decisions of the Holy Of-
fice take into consideration a twofold class of contracting
parties: infidels and Christians. Concerning the mar-
riages of infidels, missionaries are seriously exhorted not
to draw the conclusion : "In dttbio standum esse pro in-
validitate matrimonii," because this would be contrary to
the general principle that marriage enjoys the favor of
the law. Each single case must be examined and judged
on its own merits. Hence the first question is, whether a
marriage was actually contracted, and the second, whether
this marriage possesses the essentials of a marriage.
Thus, if a woman would in good faith think herself to
be the wife of a certain husband, and the husband would
say nothing against that assumption, and the neighbors
would not take scandal at their cohabitation, these would
be signs of a real marriage by name and possession, and
in such a case, though a doubt might still exist, the
parties should be left in good faith, and if they wish to
receive the sacraments, especially Baptism, they should
not be repelled." Missionaries should never fail to ex-
amine past marriages, nor are they allowed to keep silence
about them, for although good faith may excuse the parties
from sin, yet it can never make an invalid marriage valid.
Still the mere opinion that marriage was dissoluble, even
if combined with the intention to obtain a divorce in case
«S. C. P. F., Oct. i, 1785 ■» S. O., Dec. 18, 187* (CoB.,
{Coll., n. 580). n. XJ93).
G] Original from
°°|vK UNIVERSITY OF WISCONSIN
CANON 1084 237
of adultery or for other reasons, would not render a mar-
riage thus contracted invalid.37 If a marriage is found
invalid, as, for instance, among the Gallas, where slaves
contract a contubernium or legalized concubinage, the
parties must be separated until they are lawfully married.
Neither are they, after Baptism, to be left in good faith
concerning the dissolubility of marriage. On the con-
trary, they may not even be baptized until they have been
instructed on the nature of Christian marriage.*8
As to the marriages of validly baptised persons or those
whose Baptism is dubious, the following rule must be ob-
served. In case of error concerning the properties of
marriage, if it is simple and without implicit or explicit
conditions, the marriage is always presumed to be valid,
because the general will of contracting marriage accord-
ing to the law of Christ prevails over the individual or
particular will, which is, therefore, as it were absorbed
by the general will.8*
But how may the matrimonial consent co-exist with a
serious error concerning the substance of marriage, espe-
cially indissolubility, or the bonum sacramenti? The
parties wish to contract a true marriage, as instituted by
God, and do not, by a positive act of the will, exclude the
EC
essential quality of marriage, although they would ex-
clude it if they thought of it.40 Therefore Anna, who
marries Paul under the impression that she can obtain a
divorce from him in case the marriage proves unhappy,
contracts validly. The thought of a possible divorce
only made her more ready to give her consent, but the
consent itself did not depend on this reason or expedient,
*7 S. O., March ir, 1868; Feb. 4# M^S) ; Benedict XIV, Dr Sym.
1891 {Coll., nn. 13*7, 1746)- Dioec, XIII, 22, 7.
sa S. O., June 20, 1866, ad as «o C. 7, X, IV, 19; Gatparri, /. c.t
(Coll., n. 1293. Vol I, p. 7")- »• 903 f-
"S. 0., J*n. a*, 1877 (.Coll., n.
'le
£ * ^ ^ -,!,-. Original from
UNIVERSITY OF WISCONSIN
-
238 MARRIAGE LAW
although it may have greatly influenced the same.41
The object of the simple error mentioned in our canon
is either the unity, or the indissolubility, or the sacra-
mental character of marriage. The former two may more
readily exist in unbelievers, but they also exist in coun-
tries which admit divorce. The Greek schismatics and
most Protestant sects, especially the Calvinists, have little
scruple in permitting divorce. The sacramental dignity
of marriage was denied by Luther and his followers, who
looked upon marriage as a " purely worldly thing." Now
no matter which of these three objects the error may con-
cern, as long as it is a merely speculative or even practical
error which causes one to give the matrimonial consent,
it does not annul the marriage.
Can. 1085
Scientia aut opinio nullitatis matrimonii consensum
xnatrimonialem necessario non excludit.
The knowledge or belief that the marriage will be void
does not necessarily exclude matrimonial consent.
The source quoted in favor of this text is an instruc-
tion of fhe S. C. of the Propaganda, dated Oct. 1, 178s.42
Some Armenians, as it appears of the Uniat Church, pre-
sented themselves before the Turkish magistrates with
the firm purpose of taking a wife, not a concubine.
However they thought that they could not contract a valid
marriage, although if they knew of the sufficiency of the
41 This is the well known case of in favor of nullity, which we could
Paul Bom de Carte II ane and Anna Dot understand, because the so-
Gould, which was three times pro* called new proofs merely affected
posed to the S. Rom. Rota, in 19". insignificant details. — Cfr. Irish
1913, and iqis (A. Af. S., XV, 146 EceL Record, 1918. Vol. XII, pp.
ff.. V, 31a ff., Vol. soa ff.). a79 ff.
The first and third decisions were 4a Coll., o. 580.
in favor of validity, the second
oogle
k .,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1086 239
civil act for contracting marriage, they would doubtless
intend to contract marriage. But their error does not
render the marriage invalid, because their presenting
themselves before the civil officer is a mere formality
and does not offset or annul the act of the will previously
made. For when the error is concomitant only, and has
no influence upon the substance of the act, but affects only
an accidental quality, the contract remains valid. Thus
also if a party thinks or implicitly believes that he is con-
cluding a dissoluble union, without having a clear notion
of the indissoluble character, the marriage is valid.48
This appears to refer to the so-called intentio interpreta-
tive. For the party would rather be inclined to con-
tract a dissoluble marriage, yet, because the mind is not
sufficiently formed or informed, it must be supposed that
the natural property of marriage is to prevail over a cer-
tain velleitas or obscurely conceived notion. In other
words, the presumption of the law interprets the intention
in favor of validity.
internal and external consent
Can. 1086
§ 1. Intern us animi consensus semper praesumitur
conformis verbis vel signis in celebrando matrimonio
adhibitis.
§ 2. At si altemtra vel utraque pars positivo volun-
tatis actu excludat matrimonium ipsum, aut omne ius
ad coniugalem actum, vel essentialem aliquam matri-
monii proprietatem, invalide contrahit
§ 1. The internal consent of the will is always pre-
sumed to correspond to the words or signs used in the
u S. C. P. ?., Aug. J3, 1852 {Coll., n. 1079).
.'Ie
/"* ^ .. %\s* Original from
UNIVERSITY OF WISCONSIN
240 MARRIAGE LAW
celebration of tnarriage. Why? Because no one is sup-
posed to joke or to simulate consent in such a serious and
important matter. Hence though one of the parties may
deceive the other by directing his or her intention to some-
thing else than marriage, yet if he or she expresses his or
her consent in the customary and formally valid mode, the
marriage is presumed to be valid in foro externo, al-
though it may be invalid in the court of conscience.4*
This is true even if one had postulated a condition in his
mind. For instance, James says to himself: "I will
marry her if she is pregnant, because I want to repair
the wrong I have done her." If James makes no condi-
tion when expressing his matrimonial consent before the
qualified witnesses and has not made any formal stipula-
tion with her before marriage, the latter is valid.45 For
the words express precisely what they intend to convey,
namely, the matrimonial consent. The same must be
said concerning equivalent signs, for instance, nodding.44
§ 2 states that if one or both parties, by a positive act
of the will, would exclude marriage itself or the right to
the conjugal act, or an essential property of marriage,
the contract would be null.
Here there is no mere error or opinion, but a positive
act of the will. What is meant by the term " positivo vo-
luntatis actu"? A positive act of the will is not a mere
error, either about marriage itself or about the person of
the other party ; nor is it the so-called conditio apposita, an
express condition. Hence a positive act of the will must
lie somewhere between these two. Note that the external
4* S. C. P. F., Oct. i, 1785 vtl caeremonia* coram teslibui
(Coll., n. 580). prmestxtae, iuxta communem regionit
« S. C. C, June 33, 1907 (Anal. existimationem, mutuum sponsorum
Eeel., t- 15. 239 ff.). dr praestnti eomensum sufHeitnter
« S. O., Aug. 22, i860 (Coll., exprimunt "; cfr. S. C. P. F., Feb.
n. laoi): " Matrxmonium firmum ae 4, 1664; April 17, i8ao (Coll., no.
validum cousisttrt quofies nutus, 156, 2262).
oogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1086 24J
consent, if given in the usual way, is presumed to corres-
pond to the internal state of mind. This enables us to
understand the term. A positive act of the will is an
express declaration that one wishes to contract marriage
in a manner which contradicts its very essence, object,
-
or essential properties. Hence, like a positive law, this
act of the will must be formulated and externalized or
made known by means of a certain formula.47 That no
merely internal act can be intended, appears clearly from
a consideration of § 1 of this canon. Besides, a merely
internal act could never render a marriage invalid in
foro externo. Direct proof that an external act is in-
tended may be gathered from an instruction of the Holy
Office.*8 After having stated that the individual will is
absorbed by the general will of Christ, who raised Matri-
1/1
mony to a higher sphere and restored its original idea,
the S. Congregation says: "But this absorption cannot
take place if a formula is employed which contains an ex-
plicit or implicit condition against the perpetuity of mar-
riage." It then sets forth certain Calvinistic tricks which
were calculated to convince the contracting parties, at the
very wedding, that they were entering upon a union which
did not correspond to the command of Christ. Thus they
abused Matt. 19, 9:5, 32 and Heb. 13, 4 to insinuate the
dissolubility of marriage.
Of course it is not required that this positive act of the
will be declared to the other party ; but it must somehow
be manifested outwardly. A case solved by Innocent III
plainly indicates that one party may deceive the other for
the purpose of the copula. But this case also proves
47 S. O., July 22, 1840, ed. a iuxta formulam perpetuitati main-
{.Coll., n. 903): "Matrimonium monii contrariam."
mixtum esse nullum, se. parte
oeoiholica exprctie dechranle se
controhere matrimonium de fraesenti
mixtum esse nullum, se. parte 48 S. 0., April 6, 1843 (Coil., n.
meoiholica cxprcfte drcforantc se 9*5)-
jle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
242
MARRIAGE LAW
■
that although theoretically speaking there may be no doubt
as to the invalidity of a marriage contracted with the posi-
tive will not to contract marriage, yet practically speak-
ing, or as a matter of fact, it would be hard to prove,
unless circumstantial evidence could be offered to that
effect.49 A corroboration of this view is found in the
answer given to the bishop of Sioux Falls concerning the
marriages of Indians. He had asked whether they might
be trusted if they declared under oath that they never
intended to contract an indissoluble union. Yes, said the
Holy Office, if each case has been duly examined as to
the credibility and truthfulness of the parties concerned.60
The positive act of the will may exclude marriage itself.
If one would contract a union merely for the sake of car-
nal gratification, it would be no marriage. Or if two
persons would marry purely for friendship or for literary
co-operation,81 there would be no marriage.
Or the positive act of the will may exclude all right
to the conjugal act, i. e., ius ad copulam, and thus deny
radically the primary end of marriage. Different from
the right is the exercise thereof. This is not essentially
required for the validity of the marital contract and may
therefore be omitted.58 Hence the purpose of " avoiding
offspring " would not per se exclude marriage.
«C. 26, X, IV, I, where the
pope distinguishes between the fact
and quid iuris sit, the latter being
evident if no consent was given.
so S. 0., May 19, 1893; Mar 25,
1898 (Co//., n. 1796; Vol. II, p.
367): " Ut Indianus probet legi-
time se kabuisse in contrahendi? ex-
Plieitam voluntatem refiudii in causa
adult erit esterius manif estatasn."
BlS. C C, Aug. 6, 1881.
«Cfr. cc. a6, ji, X, IV, 1; e.
5, X, IV, 4: A. S. Su V. p. 353 «•
If we say that the exercise of the
marital act is not essential to the
marriagt contract it should not be
construed as if we would contradict
our own statements concerning im-
potency and vows (cfr. can. 1093).
Kor where there is not even a rad-
ical foundation for that right ex-
isting and admitted, as in the case
of impotency and vow, no right can
be foregone, inasmuch as every
right suppose* the possession or
holding of something to which a
claim may be mmde.
*Ie
Original from
UNIVERSITY OF WISCONSIN
CANON 1087 243
Lastly the positive act of the will may exclude the in-
dissolubility and unity of marriage. Indissolubility ex-
cludes the positive will to contract marriage with the
right to divorce.88 Unity excludes polygamy. Opposed
to this essential property of marriage would be the posi-
tive will to deliver the wife, or (if the woman would
make the resolution) to deliver herself, to prostitution or
adultery for lucre's sake.64
violence and fear (vis et metus)
Can. 1067
§ 1. Invalid urn quoque est matrimonium initum ob
vim vel metum gravem ab extrinseco et iniuste incus-
sum, a quo ut quia se libcret, eligere cogatur matri-
monium.
§ 2. Nullus alius metus, etiamsi det causam contrac-
tu!, matrimonii nullitatem secumfert.
■
§ 1. Marriage is invalid also when it is entered into
because of violence or grave fear, caused by an external
agent, unjustly, to free himself from which one is com-
pelled to choose marriage.
§ 2. No other fear, even though it would give cause to
the contract, entails the nullity of marriage.
This is the so-called impediment of violence or fear,
which was and still is, and must by its very nature be,
of a rather fluctuating character. The Roman law, which
permitted divorce," looked upon marriage contracted un-
der compulsion or fear as a contestable matter only. The
Penitential books connect it with rape.00 Gratian's De-
it S. O., May xS, 1898 (.Coll., w Fr. am. Dig. 23, a.
"• 1999)* 6S Wisserschlchen, I. C, pp. 150,
»4C. 7, X, IV, 5. 170, 216, 410, 5'o. 641-
'le
( * ^ .. ils* Originalfrorn
UNIVERSITY OF WISCONSIN
244 MARRIAGE LAW
cree " and the Decretals *8 mention it in a rather cursory
way in connection with the paternal power and the es-
pousals of impuberes. Freedom is strongly insisted upon
in the authentic collections. But it would be difficult
to find a positive text to prove that vis et mctus were in-
troduced either by custom or by written law as an impedi-
ment, or that the Roman tribunals ever cited such a posi-
tive law when they declared a marriage invalid.69 There-
fore it is safe to say, with the Holy Office,00 that the im-
pediment of violence and fear is based on the natural law,
and that consequently a dispensation proper cannot and
is not granted by the Church in such cases. This vjew is
corroborated by the Code, which places violence and fear
not among the impediments proper, but among the nat-
ural obstacles besetting the matrimonial consent.
i. Violence is the onset of an outward superior force
too great to be repelled ("iris est majoris rex impetus qui
repelli non potest ") .ei It may also be defined as physical
coercion or constraint, which compels one to do some-
thing against one's will. In the matter of marriage com-
pulsion signifies a violent act by which one is forced into
giving one's consent, for instance, by the use of arms, or
haling the other party before the minister or officer.
However, it is evident, as S. Thomas says,fl2that violence
cannot be done to the will as far as the proper act of
that faculty is concerned, because this act proceeds from
an interior principle, whilst violence comes from without.
But it is also true, as the same holy Doctor says, that vio-
lence is directly opposed to the voluntarimn, is against
the very nature of free-will, and therefore causes the ac-
STCfr. cc. i. 3. 4. C. 31. Q. a. 80S. O.. Feb. is. iSqi (Coll.. n.
68Cfr. X, IV, i; c. 9, X, IV, 2; aioi).
X, I. 40. «xL. t, 8 ult., Dig. 4, *.
MWemz, U c, IV, Vol, 2, p. 52 02 Sum ma ThcoL, I-II, q. 6, art.
t, n. a$6. 4 f.
§le
/•^ ^ v ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1087 245
tion of the will to be involuntary. Hence, marital consent
given under such constraint would be of no account.
2. Violence causes fear, and is therefore related to
fear as cause to effect. Fear is " a perturbation of the
mind on account of an impending evil." " There must
be a connecting link between the object of fear, or the evil
threatened, and fear itself, otherwise fear could not in-
fluence the will to do one thing rather than another. In
other words, fear must determine the will to perform
a certain act exactly and precisely on account of the
evil impending. And here it must be noted that fear
does not render the act elicited or commanded or per-
formed under its influence purely involuntary, but only
under a certain aspect, ins., with regard to the evil threat-
ened.6* However, observe that right reason would
rather consider the repugnance of the will as affected
by fear in a matter of such weight and with such en-
during consequences as are attached to marriage. The
Roman law, admitting divorce, had smooth sailing; but
the Church, which rejects the dissolution of the marital
tie, naturally attached more influence to fear than the
Roman State. In course of time she became the sole
champion of perfect liberty in matrimonial matters. The
psychological element prevailed over the metaphysical of
fear.
3. Fear may differ as to cause, mode and degree.
a) The cause of fear may come from within or from
without. It comes from within when it is occasioned by
a natural event, the existence of which is not dependent
on a free or human agent, for instance, an earthquake,65
a shipwreck, a fire. From without (ab extrinseco) fear
a
8 a Dig., /. c; Tancrcd., /. c„ p. quake of Jan. 13, 1915, which
46. caused a panic in the " Holy City
•4 Cfr. Summa cil., art. 6. of Rome for several daya.
•« We still remember the earth-
Q
>Ic
% ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
246 MARRIAGE LAW
may be caused by a free agent, i. e., man, who has it in his
power to inflict it.
b) Hence the mode or manner of fear may be just or
unjust. Fear is unjust when it is inflicted by one who
has no authority or right to threaten the evil involved, or
when it is threatened for no adequate reason, or for a
reason not connected with the evil threatened. Fear is
just if caused by lawful authority or by one who is en-
titled to make the threat, or when there is solid reason
for it.
c) In degree fear is either grave or slight.** Grave
fear may be absolutely or relatively grave. Absolutely
grave fear is such as would frighten or intimidate any
firm and prudent man or woman (cadens in xnrum con-
stantem). Relatively grave fear is one which may affect
or move to action some men or women, whilst it will
not affect others. As the natural, physical and mental
conditions of individuals differ, it is difficult to establish
a general rule. Slight fear arises either from a light
evil threatened, or from a grave evil which may be easily
averted. Finally mention may be made of what is called
reverential fear, which causes one to be afraid to offend
his parents or superiors. This again is liable to various
degrees according to education, psychological impres-
sions, and other circumstances.
d) The Code most reasonably refers this kind of fear
to marriage. Hence there must be a choice between mar-
riage and the threatened evil that causes fear.07 This is
quite evident, for if marriage is not the evil threatened
under the influence of fear, how could fear affect mar-
Q
fl* Cfr. Tancred., /. c, p. 47. neclion between marriage and the
6T Hence the so-called opinio pro- evil is required, is now destitute of
babilior of Schnialxgrucbcr (IV, 1, probability, a* it was in fact *
n. 308) referred to by Smith (Mar- priori.
riagt Proctu, p. 84). tb*t no coa-
gle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1087 247
riage, or how could it influence the will to choose that
expedient ?
The following propositions, taken from authentic
sources, will illustrate the text of the Code.
1. Proposition: Physical compulsion brought to bear
upon a party in order to extort the matrimonial consent,
simply annuls the marriage, because no free consent is
possible where there is physical constraint.*8
2. Proposition: Absolutely or relatively grave fear,
threatened from without for the purpose of eliciting the
matrimonial consent, annuls a marriage if the mode or
manner in which it was inflicted was unjust, or if there
was no adequate reason for threatening the marriage.
Thus if one is threatened with the galleys or marriage, he
would be influenced by grave fear, but though the mode
was just, because inflicted by the judge, it was unjust,
because the stuprum imputed was only proved by ru-
mor.aD The detention of a woman in a fortress by force
would annul a marriage.70 If one is threatened with im-
prisonment or marriage, and chooses the latter, the mar-
riage is invalid. The instigators of that imprisonment
were the parents of the girl, who declared that N. had
done her violence, but after the forced marriage with N.
she confessed that another one had committed the crime."
A case of fear threatened from without, but with a mix-
ture of intrinsic fear, was solved in favor of nullity.72
In other cases the S. Congregation has decided in favor
of validity, if the fear was caused merely by empty threats
■"■
"-.
«SC. 14. X, IV, 1; Bernard. T2 S. C. C, July 13, Sept aa.
Pap., /. c, pp. 303, 347. 17*3 (Richter, /. c, 8a). A grave
eeS. C. C, March 36, 1707 (Rich- fear may be inflicted by the refusal
ter, Trid., p. 238, n. 71). of the Sacraments; cfr. S. K. K..
70S. C. C, Aug. 19, 1734; June May 10, 1018 (A, Ap. S., XI,
9, 1725 (Richter, /. c„ n. 74). 89 !;.); but the case is allied to
71 S. C. C, March 18, 1731; May rape.
4, 1746 (Richter, /. c, nn. 76, 79).
>Ic
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
248 MARRIAGE LAW
and admonitions, and was threatened not precisely with
regard to marriage, but only to repair the honor and good
name of the girl.™ Thus it may happen, as we know
from a case brought to our knowledge, that a man is
forced by the brother of a girl with pistol in hand to
marry her. Whether this happens on the same day or
on the day before the marriage is immaterial, provided
there be danger of life. But if the party thus threatened
can escape by leaving the country or his home, the fear
would cease, though, of course, the revengeful brother
might follow him, and therefore the only real escape
would be the marriage, which in that case we would not
hesitate to declare invalid. Some authors T* extend the
case thus: Even if the evil threatened in connection with
the marriage would affect near relatives, the fear would
be sufficient to annul the marriage. Assuming, for in-
stance, that the brother or first cousin of James is threat-
ened,— if James would volunteer to marry the girl in
order to save his brother or first cousin, he would be act-
ing under grave fear, which would affect the validity of
the marriage. The Code is not opposed to this view.1*
3. Proposition: Fear threatened solely from ivithin
cannot annul a marriage because a necessary or blind
cause cannot influence the will ad hoc, i. e.t with regard
to marriage."
4. Proposition: Slight fear (tnetus I cvis) does not an-
nul marriage because it cannot efficaciously move the will
and diminish the voluntariness of an act. Besides, if
71 S. C. C, Sept. 1, 17*5; June 70 For it does not limit that fear
*8, 1735; April 34, 1700; April 23, to the person himself, and on the
1701 (Richter, /. c, nn. 75, 77). other hand it ia perfectly true that
TsSchulte, Ehtrtcht, p. 128, a man with natural affection con-
would include only relatives of the aiders evil or good befalling his
first and second degree, whilst v. dear ones as affecting himself.
Scherer, II, 176. extended it to T« Sane ha, I. c, 1. IV, disp. 1 -\
more remote ones. n. 3.
.'Ie
Original from
UNIVERSITY OF WISCONSIN
CANON 1088 249
slight fear would induce nullity, the appeals for annul-
ment would become innumerable and the indissolubility of
marriage a farce."
5. Proposition: Reverential fear (metus reverentialis) ,
as long as it remains such and is not accompanied by seri-
ous threats, for instance, of disinheriting, or by blows,
spoliation of ornaments (earrings, jewelry) cannot annul
marriage. But if means such as those just enumerated
are used to enhance the fear, it might suffice to annul mar-
riage, especially in the case of children of a naturally
timid and affectionate disposition.78
The right to attack a marriage on the ground of vio-
lence and fear is restricted to the parties who suffered
violence or fear; outsiders are excluded from the duty
and the right of making an accusation on this score.™
Lastly it should be noted that a marriage contracted
under the influence of grave fear cannot be revalidated
by mere cohabitation or by the copula etiam cum affectu
maritali habita*0 but the party who suffered fear must re-
new the consent according to can. 1136.
mods of expressing the consent
Can. 1088
n
§ 1. Ad matrimonium valide contrahendum necesse
est ut contrahentes sint praesentes sive per se ipsi sive
per procuratorem.
§ 2. Sponsi matrimonialem consensum exprimant
77 Sanchez, I. c, IV, di«p. 17. T8 S. C. C, June 8, 17*0; Jul*
and Gasparri, n. 945, maintain that 17, 1745 (Ricbter, /. e., nn. 7a,
the ecclesiastical law rejects mttut 78); S. Rom. Rota, July 7, iqj i;
Uvis, hot Werni (IV, Vol. a. p. June a. 19" W- *P- S- HI, *6>J
47, n. 263) ju«tly observes that IV, 108).
these authors could not allege ■ Tf> Instructio S. C. P. F„ 1883,
single text for their opinion, and n. 36 (Colt., 1587).
therefore the natura ipsms me tut M S. C- C. June 20, 1609; Dee.
Itvii is sufficient a, 1634 (Richter, I. c, n. 8a).
>Ic
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
a
N
c
250 MARRIAGE LAW
verbis; nee aequipollentia signa adhibere ipsis licet, si
loqui possint.
To contract a valid marriage the parties must be pres-
ent either personally or by proxy ; they must express the
matrimonial consent by words, and are not allowed to
use equivalent signs when they are able to speak.
Christian marriage being a sacrament administered by
the contracting parties, it follows that the latter must
manifest their consent in the presence of each other in
such a way and at such a distance that the act can be per-
ceived by the senses. § 2 expressly requires the use of
words, because these are the usual means of human com-
munication. Equivalent signs, for instance, nodding of
the head,81 or putting the ring on the finger are allowed
only when one or both of the contracting parties are in-
capable of speech. However, the use of words does not
affect the validity of the consent.11
MARRIAGE BY PROXY
Can. 1089
§ 1. Pirmis dioecesanis statutis dc super additis, ut
matrimonium per procuratorem valtde ineatur, requiri-
tur mandatum speciale ad contrahendum cum certa
persona, subscription a mandante et vel a parocho aut
Ordinario loci in quo mandatum fit, vel a sacerdote ab
alterutro delegato, vel a duobus saltern testibus.
§ a. Si mandaus scribere nesciat, id in ipso mandate
adnotetur et alius testis addatur qui scripturam ipse
quoque subsignet; secus mandatum irritum est.
BiCfr. S. O., Aii*. aa, i860 Puitet 1013. p. 313 Wl S. O.. Aiiff.
{Coll, n. taoi). it, i860; S. C. P. F„ Feb. 4*
•aCfr. cc. 93, 35, |t, X, IV, i; 1664; April 17, iSao (Coll.,
Ritual* Rom., tie VII, c 1 («L iaoi, 156, aa6a).
oogle
k ,|rt Original from
UNIVERSITY OF WISCONSIN
CANON 1089 251
§ 3. Si, antequarn procurator nomine mandantis con-
traxerit. hie mandatum revocaverit aut in amentiarn in-
cident, invalidum est matrimonium, licet sive procura-
tor sive alia pars contrahens haec ignoraverint
§ 4. Ut matrimonium validum sit, procurator debet
muncrc suo per se ipse fungi
The preceding canon simply stated that marriage may
be contracted by proxy. Therefore, since the Council of
Trent," and now after the promulgation of the Code, mar-
riage by proxy is lawful and valid.9* This canon pre-
scribes the modus facti, or what is required in order that
a marriage by proxy be valid. After having referred to
the diocesan statutes, which may require further condi-
tions, the Code says :
1) A special mandate is needed to contract marriage by
proxy with a specified person. This mandate must be in
writing, must be signed by the principal and either by the
pastor or the Ordinary of the place in which the mandate
is given, or by a priest delegated by either the pastor or
the Ordinary, or by two witnesses.
This is nothing else but an application of can. 1094, for
the proxy takes the place of one party. Of course, if
both would choose a proxy — which is not likely to hap-
pen — the same process would have to be applied to both
proxies, and each must have a mandate signed by the prin-
cipal, the respective pastor, etc.
2) If the person issuing the mandate (mandans) is un-
able to write, this fact is to be noted in the mandate and
an additional witness must sign the document, else it is
void.
3) If the principal has revoked his mandate or become
08 Seu. 24, c. 1, it rcf. mat.
•4 Benedict XIV, D# Syn. Diotc, XIII, a. 9.
,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gle
-'
■
pi
252 MARRIAGE LAW
insane before the proxy makes the contract, the marriage
is invalid, even though both the proxy and the party with
whom the contract was made would be unaware of the
change.80 For the consent is suspended by that incident,
and does not last in the mind of the mandans.
4) The proxy must execute his mandate personally,
not by a delegate, else the marriage will be invalid. The
reason for this condition is that generally in such a mat-
ter personal qualities determine the choice. Of course, it
is supposed that the proxy, when contracting marriage in
the name of the mandans, is in a normal condition of
mind and body, and especially that he is able to realize
what is going on.80
Can. 1090
Matrimonium per interpretem quoque contrahi pot-
est
■
Marriage can be contracted also through an interpreter.
In this case, which differs from proxy, because the
parties are supposed to be present, the interpreter must
faithfully translate the consent of both.
Can. 1091
Matrimonio per procuratorem vel per interpretem
contrahendo parochus ne assistat, nisi adsit iusta causa
et de authenricitate mandati vel de interpretis fide du-
ett C. o, 60, I, 19; S. C C. July BoThe cue mentioned in the
5, 1727 (Richter, Trid., p. 338, n. preceding note depicted the proxy
69). Insanity need not be pcrpet- as meting under strong, though not
uaJ, but may be temporary, no overpowering, influence of alcohol;
matter what Sanchez (1. II, disp. on that score he had contracted
ii, a. xa) says against other au- validly; but because the mandans
Uxors. The case in Anal. Ecet., bad fallen into insanity at the time
1001, p. 430, offered 1 wrong solu- of the marriage contract, the utter
lion. was Invalid.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 1092 253
bitari nullo modo liccat, habita, si tcmpus suppctat,
Ordinarii licentia.
The pastor shall not assist at a marriage which is to be
contracted by proxy or by interpreter, unless there be a
just cause for it, and no doubt exists concerning the
genuineness of the mandate or the trustworthiness of the
interpreter; if time permits, the Ordinary's permission
should be obtained.
There would be room for doubt if the mandate were
■not sealed with the parochial or diocesan seal. If prop-
erly signed and sealed the document cannot be rejected.
A legitimate cause justifying the pastor in assisting at
such a marriage would be absence from home, or per-
haps unsafe conditions arising from feudal or family
<Iissensions, etc.
conditional marriage
Can. 1092
Conditio serncl apposita et non revocata:
I. Si sit de futuro necessaria vel impossibilis vel tur-
pis, sed non contra matrimonii substantiam, pro non
adiecta habeatur;
2/ Si de futuro contra matrimonii substantiam, illud
reddit invalidum ;
3.0 Si de futuro licit a, valorem matrimonii suspen-
jj dit;
4.0 Si de praetcrito vel dc pracsenti, matrimonium
erit validurn vel non, prout id quod condition! subest,
exsistit vel non.
IK
There are certain rare historical documents n which
could be alleged as proving the existence of this former
8T Freifcn, /. c, p. »jj ff. deavora vainly to abow a historical
"Werna, /. c, IV, p. 433 (ed. 1) en- coherence.
I Original from
1 K H 'gie UNIVERSITY OF WISCONSIN
254 MARRIAGE LAW
impediment. With the exception of two " Paleae " M in
the Decree, Master Gratian seems to ignore it. Bernar-
dus Papiensis is the first writer who mentions it ex
professo.™ The Decretals*0 deal with conditional mar-
riage under a special title, but the Code no longer treats
condition as an impediment.
A condition or stipulation is a quality added to a con-
tract which suspends its validity or effect until the time
when the condition is fulfilled. From this definition it
may be seen that a condition almost invariably concerns
the future. A condition referring to the past is not a
condition in the proper sense of the term.
Stipulations may regard the substance of marriage,
especially its indissolubility, loyalty, and primary end.
They may not be repugnant to the substance of marriage,
and yet be sinful, because of the unlawfulness of the
object aimed at. They may also be impossible of fulfill-
ment. This impossibility may spring from human inca-
pability of fulfilling the stipulation, because the object is
beyond man's power. A necessary condition is one, of
which the fulfillment depends on natural, not free, causes
(eventus fortuitus). The text proceeds according to the
various conditions.
I. When a condition has been placed to the consent
and not withdrawn, if it concerns the future and is neces-
sary or impossible or dishonest, but not contrary to
the substance of marriage, it must be regarded as non-
existing.
a) A necessary condition would be, for instance : " If
the sun rises to-morrow," " If vour mother dies," or " If I
■"■
•• Cfr. ec. 7, 8, C. ay, q. a\ to Summa Dtcrit., ed. Laapeyrec,
which are spurious; cfr. Berardi, IV, J, p. 146 f-
Canoncs Gratiani Genuini. I, 17a. so Cfr. X, IV, 5.
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 1092 255
get a good crop," for such conditions depend on circum-
stances over which man has no control.
b) An impossible condition would be: "If you will
touch the sky with your fingers,"91 or "If you will not
get sick," or " If you will live forever."
c) A sinful condition would be : " If you will em-
brace a non-Catholic creed," or " If you will kill your
mother-in-law," or any other stipulation which involves a
sin.
Now all such conditions are to be considered as non-
existing, and therefore, as the canonists °2 say, they vitiate
or kill themselves, not the matrimonial contract. A sen-
sible and honest person is not supposed to contract mar-
riage under frivolous conditions. The Church clearly
wishes to safeguard the importance and seriousness of
marriage by this law.
2. If the condition concerns the future and is against
the substance of marriage, it renders the marriage invalid.
The school " expressed this truth thus : A condition that
is against the substance of marriage, vitiates the latter,
but not the condition itself. For in every such case
there are two positive acts of the will, one contrary to the
other, inasmuch as the contracting party on the one side
wills the marriage, because the will is bent on the mar-
riage contract, while, on the other side, the will does not
will, because it excludes or restricts the obligation and
hence the right." Note that we speak of a condition,
which must proceed from a deliberate act of the will, and
not from mere apprehension or interpretation, as when
one would say: If I had known this, I should not have
contracted marriage. This would be a case of error or
•1 Bernard. Pip., I. c; c. 7. X. 98 Fagnani, I. c, n. c. 7. nn. a f.
IV, 5. o*Gasjiarri, /. C, n. 919 (Vol. 2,
OS Fagnani, Comment, c. i, X, 5, p. 41).
nn. a S.
a
oogle
v ,|r> Original fro m
UNIVERSITY OF WISCONSIN
256 MARRIAGE LAW
misunderstanding, but there would be no formal act of
the will. Besides being a condition or stipulation, it must
be mutually, externally, and lastingly agreed upon (m
pactum deducta) ,M We say lastingly, because the stipu-
lation must not be retracted before the marriage consent
is given. But it is not necessary that this stipulation be
repeated at the wedding, and hence the parties may give
their consent absolutely like other contracting parties who
marry unconditionally. This point was insisted on in a
certain cause brought before the S. C. Concilii.9* How-
ever, the document drawn up before the marriage and the
fact that the pastor would not, at first, assist at the mar-
riage for the very reason that a condition against the
substance of matrimony had been attached, proved clearly
the existence of a mutual stipulation. Therefore the
marriage was declared invalid.
The substance of marriage is embraced in the three-
fold good thereof: the bonum sacratnenti, fidelitatis tt
ptolis.
a) Opposed to the sacrament is solubility by which a
person could marry for a certain time only, or as long
as it pleased his partner. Charles and Caroline were
married April 12, 1887, but he soon grew tired of living
with the same woman, and after fifteen days Caroline had
to return to her home. The episcopal court returned a
verdict in favor of nullity because " of the evidently im-
plied condition of contracting a soluble marriage." But
the S. C. Concilii upset this sentence and pronounced in
favor of validity* because there were no proofs for the
existence of any such stipulation.*7 If a Catholic would
SB Thui all the quotations al- oe UKxbon., March t6, rjao; Jnly
leged in Card. Gasparri'a edition, ea- 8, i7»4 <Richtcr, Trid., p. 246 ff.»
pecially S. O., Jan. 24, 1877 (Coll., n. 88).
n. 1465); cfr. Benedict XIV, Dt M S. C. C, Jan. ji, 1891 {A.
Syn Diote., XIII, «, 7- S. S.t x. aj, 711 B.).
n'C
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1092 257
a
marry a Protestant or schismatic who was determined to
make use of his sectarian conviction concerning the solu-
bility of marriage, but would not stipulate this expressly
with the Catholic party, the marriage would be valid.98
b) The second bonum is that of conjugal fidelity, which
excludes polygamy and adultery. Hence if a man would
marry a woman with the expressly stipulated condition :
" I will marry you if you will deliver yourself up to
adultery or prostitution for the sake of gain," Bl the mar-
riage would be invalid. However, a mutual agreement
would be required, otherwise the marriage would be
valid, since no decent or honest person is supposed to ig-
nore the unity of marriage, which excludes the sharing
of one's body with another.
c) A condition against the bonum prolis would be, in
the words of the decretal : " si prolem evitaveris," if you
will have no offspring.1 The primary end of marriage
would thereby be frustrated. But this point is disputed,
especially on account of the marriages called after St.
Joseph, and marriages contracted with the vow of per-
petual chastity. To us it seems more conformable to the
law and in accord with the essence of marriage to hold
that the right to the body of the other partner which is
conferred by the matrimonial consent is intended precisely
for the purpose of bringing forth children (ius ad copu-
lam per se aptam ad generationem) , that in other words,
it is not an abstract, but a practical right, intended for
the use of marriage. Now, if the vow of perpetual chas-
tity had been made by one party, the other would be
obliged in justice not to make use of the right essentially
inherent in marriage,2 and consequently there would be the
MS. O.. Dec. *, i«8o (CtttL, a. 1 Ibid.
mi). aThm Were* IV, Vol. *. p. o8„
00 C. ?, X, IV, 3. a. 30a.
jle
£ * ^ v ,|„ Original from
UNIVERSITY OF WISCONSIN
258 MARRIAGE LAW
same contradiction noted above : to will and not to will ;
I will marriage, but not its rights and duties. Now any
contract would be invalid if the object of the contract
would be absolutely, radically and permanently refused.
Note well that a vow must necessarily exclude the right
to use marriage, otherwise it is only an imperfect vow.
Neither is it admissible to distinguish between a sinful
and a lawful condition, for not only does the law 8 not
distinguish between sinful and lawful conditions, but the
very nature of marriage does not admit this distinction.
For its primary end is offspring,4 and if this end is in any
way wilfully and efficaciously excluded, there can be no
marriage. Lastly, this vow must be, and is supposed to
be, a mutual agreement and not to rest only in the mind,
or be a one-sided affair. For we are dealing with stipu-
lations. The conclusion is : a marriage such as the one
described is null and void.
But what about the so-called historical facts: the mar-
riage of the Blessed Virgin with St. Joseph,6 that of
Pulcheria with the Emperor Marcian, that of St. Henry
II with St. Cunegundis? Concerning the first example
we may safely follow St. Thomas,8 who says that the
vow of Our Lady was conditional, not absolute, because
otherwise there would have been no marriage. If it had
been absolute — without reference to the will of God
who wished that marriage — there would have been a
condition against the good of marriage, and the latter
would have been null and void. As to the marriage be-
tween Pulcheria and Marcian there are no documents
D
a Neither the Decretals, c. 7, X, » Ctr. Ztitsehrift /fir Kalh.
IV, s, nor oar Code. Thtol., Innsbruck, i838. p. 663 ff.,
4 And for that very purpose mar- where P. Flunk, S.J., discussed the
riage was instituted by the Author matter very thoroughly.
of nature, whence it cannot be sin- * Sent, IV, Dist. 30, q. 2, art. t,
ful. gla. a ad a.
oogle
,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1092 259
at
proving an absolute vow attached to the consent in the
shape of a genuine stipulation. Concerning St. Henry's
union it is now morally certain that there was the impedi-
ment of impotence.1 A rather peculiar case has been al-
luded to above.8 A Portugese lady married a senator un-
der the avowed condition, set down in writing, that she
would enter a convent fifteen days after the marriage,
make profession after the novitiate, never make use of
her marriage rights and immediately renounce the same.
(Given at Lisbon, May 6, 1718.) The marriage was de-
clared null and void. Besides others the authority of St.
Thomas was alleged, who says: " If a woman would tell
a man: ' I marry you, provided you have no intercourse
with me,' this would be no matrimonial consent, because
the condition is repugnant not only to the act itself, but
to the very purpose of carnal intercourse." •
A very practical case was that solved by the S. Congre-
gation, July 17, 1904. It concerns the onanistic use of
marriage. A man and a woman had married with the
formal and explicit condition that they would have no
children. The episcopal court gave a verdict of nullity,
which the defensor vinculi tried his best to get reversed.
But as the stipulation was proved by letters, supported by
an oath of the man and by witnesses, the S. Congrega-
tion 10 confirmed the sentence, thus declaring the marriage
invalid. Of course, if the intention to have no children
would have been only a desire or wish not expressly
stipulated, the verdict would have been in favor of valid-
3. If a condition attached to the consent and not with-
T Tubingtr Quartalschrift, 190 j, p. 3; other authors quoted in that
325 *.; i9<»7. P- 563 f- case ar«: S. Bonaventure, San-
» Ulixbon. (Richter, p. 346 9., n. chez, Layman, Barbosa, etc.
88). loCfr. Anal. Bed., t ix, 294 &•
9 Sent., IV, dist. 28, art. 3 ad
>Ie
% ,1,., Original from
UNIVERSITY OF WISCONSIN
260 MARRIAGE LAW
St
drawn concerns the future and is lawful, it suspends the
validity of the marriage until the condition can be veri-
fied. If, for instance, one would set up the condition:
"I marry you if I shall be elected to Congress," or "if
you bring a dowry of $10,000," it would concern the fu-
ture and be licit, but unless the stipulation were mutual,
formal and lasting, the marriage would never be declared
invalid, nor would it be conditional.11 Suppose James
married Gemma in 1919 under the condition above
quoted: "If I am elected to Congress at the next
election, in 1921." Provided they had observed the pre-
scribed form, the marriage would become valid at the
moment of James's election. But both would have to
abstain from cohabitation or the use of marriage rights
until the election was polled and ratified. After that no
renewal of consent or anything else is required, because
by the verification of the condition the marriage contract
becomes complete.1' Both parties may licitly and validly
relinquish the condition and in that case the consent be-
comes absolute and no other formality is required,18
but the pastor who assisted at the conditional marriage
should be notified, in order to avoid misunderstanding.
Here it may be well to note that a conditional marriage,
because not approved as a general rule by liturgical books
and the practice of the Church, should never be contracted
without first consulting the Ordinary."
If the parties had carnal intercourse whilst the con-
dition was still pending, they are by law supposed to have
D
"■
11 S. C. C, Jan. 23, 1666 (Rich- dition was made, but the parties
ter, Trid., p. 344, n. 85). A womin contracted absolutely, and therefore
married on condition that the bus- the marriage was declared valid,
band should bring 400 scudi (= 12 C. nn | 1, 60, IV. I.
94000) as a dowry; he failed; vet »C. 5, X, IV, 5.
the marriage wu valid, because ahc ** Wernx, /. c, IV, Vol. a, p.
consented libtrt; S. C. C, Nov. 17, 88, n. 397.
1708 (Richter, I. c, a. 8ti). A con-
>Ie
Original from
UNIVERSITY OF WISCONSIN
CANON 1092 261
renounced the condition and thus made their conditional
consent absolute. This is the doctrine of the Decretals w
and it is not contradicted by the Code nor by the " Con-
sensus mutuus" of Leo XIII, Feb. 15, 1892."
The supposition that, pending the fulfilment of the con-
dition, one can contract a valid marriage with a third
person,17 is fanciful, for now-a-days, when the form is
so carefully prescribed, there is hardly a possibility of
such an occurrence.
4. If the stipulated condition concerns the past or pres-
ent, the marriage is either valid or invalid according to
the verification or non-verification of the condition.
Thus, if one would marry a woman under the condition :
" If you are a virgin," the marriage would be objectively
valid if the woman really were a virgin, but the marriage
rights could not be made use of until the condition was
verified.1*
A case of a lawful condition not fulfilled was solved in
1918 by a commission of five Cardinals, all noted canon-
ists. The lady had promised to marry a man if he was
free from the taint of having had relations with another
woman. This condition she mentioned on three different
occasions to the would-be husband, and emphatically
stated that her consent depended on and was subject to
the quality alleged. Nor did she retract this condition
before or at the marriage, though she did not formally
renew it at the wedding, because, having stated it so ab-
solutely, she could not add anything else. But the hus-
band was found wanting in that very point, though he
had asserted upon his word of honor that he had had no
illicit relations with the other. After the marriage he
■"■
tsCfr. cc. 3. 5. «. X, IV, 5. lTWerai, /. e.
ie Wenu, J. c, IV, VoL a, p. 90, is Fagnani, in c. ?, X. IV, 5,
n. 998- * in. 13 ff.
n'C
£ * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
262 MARRIAGE LAW
frankly admitted that he had maintained such relations
for twelve years with a woman who was even now
nearer to his heart than the wife he had married. The
five Eminences pronounced sentence of nullity because a
real condition had been added to the contract which made
the consent dependent on the existence or non-existence
of the condition. This condition had never been revoked,
nor was it verified, because the man had deceived the
woman by his word of honor, and himself admitted after
marriage that he had had illicit relations with another.18*
A similar case would be if a man would stipulate with
his would-be wife: "I take thee if thou art not preg-
nant by another man." But it must be added that either
written or oral testimonies would have to be brought to
prove the existence of the condition; otherwise the ec-
clesiastical court neither would nor could pronounce
sentence.
continuance of the consent
Can. 1093
Etsi matrimonium invalide ratione impedimenti ini-
turn fuerit, consensus praestitus praesumitur perseve-
rare, donee de eius revocatione constiterit.
i/i
Although marriage be invalid because of an impedi-
ment, the consent once given is presumed to continue
until its revocation be proved.
The impediment must here be understood to be a diri-
ment one. Therefore the question arises whether it was
known to both or to one of the parties. If it was not
known, this ignorance or good faith cannot render the
marriage valid,19 and the consent is presumed to continue.
lSt Sec A. Ap. S.t Vol X, pp. i« S. 0., July 4, 1855. I -*»«"**-
388 S. vertenJum {Coll., n. 114).
>gle
% ,1,., Original front
UNIVERSITY OF WISCONSIN
CANON 1093 263
However when such a case occurs, it must be examined,
and if the impediment really existed, the consent must be
renewed after the necessary dispensation has been ob-
tained.20 If the existence of an impediment was known,
the psychological query arises : Is it possible to contract
marriage in spite of an obstacle that would not permit a
real union? Our Code has already settled that question
in can. 1085, where it says that knowledge of the nullity
of the marriage does not necessarily exclude the matri-
monial consent. For the parties may persuade themselves
that they are really married, although perhaps unlaw-
fully. Here is a case : In Siam it is customary to marry
without the usual ceremonies. If the parties prosper,
they stay together and after four years are considered to
be husband and wife. From this time onward their mar-
riage is valid, though at the beginning it was a concubin-
age. The consent was not renewed after the four years,
hence the first one persevered and was regarded as suf-
ficient for a valid marriage.21 However, it must be
added that this can only take place when the marriage has
the " name and claim " and resemblance of a marriage.22
And the reason why the law most reasonably supposes
the perseverance of the consent and an apparent mar-
EC
riage, lies in the assumption that the natural law cannot
be so obscured in every race and among all men that no
trace of it is left.28
Hence revocation of the consent must be proved. How
is that done? For lack of texts we are thrown upon con-
jectures. Evidently a merely habitual or interpretative
attitude of mind, by which one would not again consent
10 S. O., March 11, 1868 {Coll., 21 S. O., Dec. 18, 1872 {Coll., n.
0. 1326). At the time of periecu- 1392).
tion in Japan many marriages were 2a S. O., Dec. 9, 1874, ad 2
contracted with impediments. (Coll., n. 1427).
«S. O., Nov. 23, 1871 {Coll., o.
1J77)-
>Ie
v ,|,, Original from
UNIVERSITY OF WISCONSIN
264
MARRIAGE LAW
if he would know of the nullity of the marriage, would
not suffice for proof." Since according to can. 1086,
§ 2, a positive act of the will is required in order to
invalidate a marriage, it seems reasonable to assume that
the act of revocation must be manifested outwardly and
proved by two witnesses, or, in case of necessity, by one
witness duly sworn. The assertion of the party alone
would never be considered sufficient in court, since it
might be that the party would have his or her own inter-
ests too much at heart. Therefore in causa Ulixbonensi
the point of defence turned about the question whether
the condition had been revoked at the moment of the wed-
ding. And the proof that it had not been revoked was
furnished by the pastor and witnesses. The similarity
between that case and ours is palpable. For the rest,
since the plaintiff cannot be a witness at the same time in
the same case, it is but natural that a third person must
testify to the fact of revocation. Of course, the other
party may also testify to the revocation. This would be
brought about by proving the refusal of cohabitation, or
desertion, accompanied by utterances like these: "I
never intended to marry you," " I was deceived when I
gave my consent and I am sorry I have ever seen you,"
" I have learned that our marriage is invalid and there-
fore T will have nothing to do with you any longer," etc.
This proof, if given under oath, would doubtless establish
the fact of revocation.
JiFeije, /. c, n. ;6o, p. 780 (ed. 3).
>ogle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER VI
FORM OF CELEBRATING MARRIAGE
HISTORICAL NOTE
■
It is certain that Christians from the earliest times
clothed the marriage union with a certain ceremony,
which differed from that prescribed by the Roman law,
though no doubt they also obeyed the civil laws. The
letter to Diognctus 1 plainly says that Christians marry
like all others. This supposes that the Roman civil prac-
tice was observed as far as it <iid not clash with their
religious views. Thus marriage by confarreatio,7 even
1 Cap. 5; Roberta and Donald-
son, The Anttnicene Fathers, New
York, 1899. I. P- »6.
2 Confarreatio, coetnptio, usus,
were forma of a marriage cum con-
vtutione in manu. and confarreatio
— from farrevx, made of spelt, fit.,
the cake — was a at rial y religious
ceremony performed in the house
of the bridegroom, to which the
bride had been conveyed hi state,
and in the presence of at least
ten witnesses and the Pontifex Max-
imus, or one of the higher Fla-
mens. A set form of words (car-
mew, verba concepta) was employed,
and a sacred cake made of far
(spelt) (farreue fonts) — whence
the term confarreatio — was either
tasted or broken over the parties,
who during the performance of the
various rites sat side by side on
a wooden seat made of an ox-
yoke covered with the skin of sheep
which had been previously offered
in sacrifice. Coempiio was purely
a legal ceremony, and consisted in
the forma) conveyance of the wife
to the husband, according to the
technical procedure in the sale of
ret maneipii. An imaginary sal*
took place on the part of the parent
or guardian in the presence of five
Roman citizens of mature age and
a balance' holder ilibripens), the
husband or fictitious purchaser
being termed coemptionator. A
woman who remained with her hus-
band for one whole year without
absenting herself for three con-
secutive nights, passed in manum
mariti by prescription (usu) as ef-
fectually for all legal purposes as
if the ceremonies of confarreatio
or ccemptio had been performed.
See Rarasay-Lanciani, Manual of
Roman Antiquities, 1901, p. J95 f.;
also Becker-Metcalfe, Callus or
*5
►ogle
Original from
UNIVERSITY OF WISCONSI
266 MARRIAGE LAW
had it not fallen into disuse at the end of the Republic,
would not have been compatible with Christian sentiment.
Less closely connected with pagan practices were the
marriages called coemptio and usus. However, all these
were but rarely employed at the beginning of Christianity.
More common was marriage without the conventio in
mamt. In that case the woman remained under the
legal control of her father or guardian, or was sui iuris,
as the case might be ; and when sui iuris, all the property
which she possessed or inherited was at her own disposal
with the exception that the Roman law made for the
dowry. The ceremonies that surrounded such a mar-
riage were of a domestic or private character. Be-
trothment preceded the regular marriage contract or
wedding. However, festive solemnities accompanied the
marriage even though it was a marriage sine manu.
Whether the early Christians followed this custom is dif-
ficult to say. But one thing is certain, the ecclesiastical
authorities were not neglected when Christians entered
upon that union, although the legal formalities of nuptiae
iustae may have been set aside. Thus St. Ignatius
says : " It becomes both men and women who marry to
be united with the consent (/«ra yvu>fi7j$) of the bishop,
that the marriage be according to the Lord and not ac-
cording to lust."3 And Tertullian exclaims: "How
could I sufficiently praise that marriage which the Church
accepts, the oblation ratines, the blessing seals." * On a
sarcophagus in the Villa Torlonia in Rome there is a
sculptured representation of a marriage. The two fig-
ures join hands upon a reader's desk (lectorium) , or,
more correctly, upon the book of the gospels lying on
Roman Scenes of t\e Time of Aw ■ Ep. ad Polyearp., c 5 (Anteoi-
guttus, 1898, p. 153 ff- cene Father*. I, p. 95).
« Ad Ujeorem, II, 19.
^le
f** ^ •* iL-. Original fro m
UNIVERSITY OF WISCONSIN
HISTORICAL NOTE 267
the desk. Between and above the two persons, one of
whom is veiled, appears the figure of the Saviour*,
young and beardless. Here we no doubt have a repres-
entation of a Christian marriage celebrated before the
fourth century.6 We may also refer to- some epitaphs
which illustrate the Christian idea of an indissoluble
union blessed by the Church.6
Tertullian calls a marriage not previously professed
or celebrated in the Church mere concubinage.7 We are
told of the sacerdotal blessing by the IVth Council of
Carthage, a. d. 398 (c. 13). This text seems to have en-
tered a Capitulary of the Kings of France, which says
that it is a sacred duty to celebrate marriages publicly,
because from clandestine unions many sins arise, and
therefore the parish priest must first be approached, and
marriage contracted publicly before the whole congrega-
tion.8 That Pseudo-Isidore should insist upon public
weddings is but natural." Jonas of Orleans mentions
the necessity of sacerdotal intervention.10 Gratian, Alex-
ander III, and the IVth Lateran Council insist upon
public marriages and the latter forbids clandestine unions
most severely.11 Yet none of them asserts that a mar-
riage not contracted before the Church — in facie Ec-
clesiae — would be invalid, unless there was some other
impediment.
TRIDENTINE DISCIPLINE
The Council of Trent (1545-1563) in its twenty-fourth
session, after long discussion and thorough deliberation,
5 Armellini, Lesioni di Arehto- 0 Hinschius, DtcreUles Pseudo-
iogia Crutiana, 1898, p. 369- Itidorianae, 1863. P. 87.
• Ibid. JO De Instiu Lakali, II, a
7 D» Pudicitia, e. 4. (Migne, 106, col. 170 f).
8 Mansi, Coll. Cone, XVII bis, 11 Ad c. 9, C. 30, q. 5; c. 4,
col. 106a f. Co nip. V, IV, 4; c. i, Comp. II,
IV. 3; c 3. X, IV, 3.
oogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
268 MARRIAGE LAW
enacted the well-known decree "Tametsi" (c. i), which
governed the practice of the Church for more than 350
years. The formality required was laid down as fol-
lows: "Those who shall attempt to contract marriage
otherwise than in the presence of the pastor {parochus),
or of some other priest by permission of said parish
priest or of the Ordinary, and in the presence of two
or three witnesses, the Holy Synod renders wholly in-
capable of thus contracting and declares null and void,
as it also invalidates and annulls such contracts by the
present decree." The Ordinaries were enjoined to see to
it that the decree was published in every parish church,
and it went into effect in each parish thirty days from
the date of its publication.
The practice generally followed up to 1908, as em-
bodied in this decree, is the following:
1. The parochus is the pastor of one or both of the
contracting parties (parochus proprius contrahentium).
This has always been held in practice and by the School.11
2. Pastor and witnesses must be present, not only
bodily, but also mentally, or cum animo, i.e., they must
realize what is going on.13
3. The requisite of promulgation in each and every
parish caused a great deal of confusion, not only in
Catholic parishes, but also in mixed communities.
a) In Catholic countries, these rules prevailed:
o) If proof was furnished from the statutes or archives,
or other authentic documents, that the " Tametsi " was
promulgated in a certain parish, all Catholics were bound
to abide by it, under penalty of invalidity.
12 Cronin, New Matrimonial Ltg- 18 Pirhing, IV, 3, | 2, q. 6; a
illation, 191 o, mny claim credit for cane In point ia aolved by the S.
having discovered that all canonists Rota, May 28, 1909, in A. Ap. S ,
were mistaken in assuming the J, 5*4 ff.
farochus froprius.
oogle
% ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
HISTORICAL NOTE 269
p) Presumption was admitted in as far as custom in
iavor of the observance of the Tridentine form was con^
sidered proof that promulgation had been made; pro-
mulgation was presumed to have been made in a parish
if it was made in the whole diocese.14
b) Concerning mixed territories a distinction was
made, based on the supposition that the Tridentine law
had a double character, personal and local, because it
effected the contracting parties by reason of local pro-
mulgation. Three kinds of regions were distinguished
in which promulgation was said to have been made :
a) In overwhelmingly Catholic countries or territor-
ies, where there were but few non-Catholics, who had
no church or minister, and where the decree was certainly
promulgated, not only Catholics but non-Catholics also
were bound to observe it. Such countries were: Italy
(with the exception of the island* of Malta); France,
Spain, Portugal, Belgium, Luxemburg, the Catholic Can-
tons of Switzerland, Austria, Bavaria, and the Spanish
and Portugese colonies.
/?) Mixed countries were those in which Catholics and
non-Catholics lived promiscuously at the time of promul-
gation and had their ministers and temples. For the
Netherlands, e. g., Benedict XIV, on Nov. 4, 1741, issued
his famous Declaratio. In all the countries to which
this " Declaratio " was subsequently extended, mixed
■marriages and marriages between baptized non-Catholics
were valid, even if the Tridentine form had been disre-
garded. In the United States the Tametsi was supposed
to have been published, but to bind only strictly Catholic
marriages, in the province of New Orleans, in the prov-
ince of San Francisco together with the territory of
<
14 Benedict XIV, De Syn. Diotc, Wernx, Jus. D*c, IV, Vol. I, p.
XII, 5, 6; Lcitner, I c, p. 300; 216, n. 160.
►ogle
Y ,|,, Original fro m
UNIVERSITY OF WISCONSIN
■
pi
270 MARRIAGE LAW
Utah, save that part which lies east of the Colorado
River, in the province of Santa Fe, except the northern
part of Colorado, in the diocese of Vincennes, in the
City of St. Louis and the parishes St. Genevieve, Floris-
sant, and St. Charles of the same archdiocese, in Kaskas-
kia, Cahokia, French Village, and Prairie du Rocher, all
situated in the diocese of Belleville.15
c) Finally, there were countries of a preponderantly
non-Catholic type, where Catholics formed a small minor-
ity at the time the promulgation of the Tametsi was to
be made. Here, unless promulgation could be clearly
proved, the decree bound neither Catholics nor non-Cath-
olics. Thus in the United States the following ecclesias-
tical provinces were exempt: Baltimore, Philadelphia,
New York, Boston, Oregon, Milwaukee, Cincinnati (ex-
cept the diocese of Vincennes), St. Louis (except the
City itself and the places mentioned above), and Chi-
cago (with the exception of the places mentioned in the
Belleville diocese).18 To this class also belonged Eng-
land, Scotland, Denmark, Norway, several German prov-
inces, Greece, Russia, Turkey, Japan, and China.17 This
summary of divergent practice proves emphatically how
opportune was the change introduced by the pontifical de-
cree " Ne tentcre," of Aug. 2, 1907, which has now en-
tered the Code.
Present Legislation Concerning the Valid Form
of Marriage
The Code embodies the " Ne temere " with some modi-
fications, and the whole of chapter VI may be divided
into the following topics: Requisites of formal valid-
Zl Acta et Dtcrtta Cone. Bolt., it Cfr. Zitelli, Apparahu luris
III, 1886, p. CVIII. Eccl., 1886, pp. 394 ff- Wernx,
if Smith, Eltmtnti, I, n. 659. p. L e., IV, VoL I, p. 223, n. 163.
432.
^Ie
f ■ ,-,:]» Original from
UNIVERSITY OF WISCONSIN
CANON 1094 271
ity, requisites of valid assistance on the part of the pastor
or Ordinary or delegate, requisites of licit assistance,
special provisions for particular cases, local extension,
prescribed rites of celebration, and registration.
REQUISITES' OF FORMAL VALIDITY
-
Can. 1094
Ea tantum matrimonii valida sunt quae contrahun-
tur coram parocho, vel loci Ordinario, vel sacerdote ab
alterutro delegato ct duobus saltern testibus, secun-
dum tamen regulas expressas in canonibus qui sequun-
tur, et salvis exceptionibus de quibus in can. 1098, x 099.
Only such marriages are valid as are contracted before
the pastor, or the Ordinary of the diocese, or before a
priest delegated by either the pastor or the Ordinary,
and at least two witnesses, in conformity, however, with
the rules laid down in the two following canons, and with
the exceptions mentioned in canons 1098 and 1099.
Two different kinds of persons are mentioned in the
text as necessary to a valid marriage : the ministers of
the Church and witnesses.
1) The ministers of the Church are the pastor or the
Ordinary, or their delegate. Who is the pastor? The
answer is given in can. 451. He is the priest upon whom
the parish has been conferred as his own (in titulum)
a
and who has the actual care of souls by the authority of
the bishop. Therefore, a so-called habitual pastor is
excluded. Nor are a chapter of canons or a religious
superior, even though he be a prelate, if they have only
habitual, not actual care of souls, entitled to assist at a
marriage.'
What about priests in charge of so-called stations or
ia Can. 45* 0.
3
oogle
; ,|Y, Original fro ni
UNIVERSITY OF WISCONSIN
272 MARRIAGE LAW
missions. If, for instance, a mission is attached to a
o
monastery, which sends a priest once or twice a month,
who is the pastor? If the mission belongs to an abbey
church, which is at the same time a parish church, the
pastor of the abbey church is the actual pastor of the
mission church, and therefore has the right of assisting
at marriages. Where a parish church has one or more
mission chapels attached to the main parish and attended
by the pastor's assistants, the latter cannot be considered
as pastors,18 but the pastor of the main parish is also the
pastor of the mission chapels.20 However, in our case,
the missions being attached to a monastery, not to a
church, the pastor of the mission would certainly be the
excurrens or the priest sent by the monastery. Who
else could be the pastor? Not the religious superior,
because he is at most only a habitual pastor, who has
nothing to do with marriages. Nor the pastor of the
monastery-church, because the missions are, ex hypothesi,
not attached to his church, but to the monastery. Hence
only the Ordinary of the diocese would be left, who is
and, as far as we know, always has been supposed to
give the necessary faculties or authority to the priest
who is in charge of such a mission.
The new Code, which is law also in our country,81
19 Woywod, Marriact Laws, 1913, ing a pariah, provided there are
p. 10 f. prospects that the most necessary
20 A consequence it that the banns revenues will be forthcoming. If a
would have to be published in the rector ia appointed to subsidiary or
main church. accessory chaplaincies, what is bis
tl The decree of the S. C. Con- relation to the pastor? Suppose a
sisi., Aug. 1, 1919 (Bed. Rev., parish organised by decree of the
Vol. 6r, p. 551 f.), seems favorable Ordinary comprises one, or two, or
to our view. The decree refers to even five counties. All tbe bishop
can. 1409, 1410, 1415, HI. These has to do is to define the accurate
deal chiefly with endowment. The boundary lines and declare that, for
fact that there may not be an abso- instance, the parish at the county
lutely sufficient endowment, should seat is the parish, and the priest in
not prevent the Ordinary from erect- charge of it *** pastor. This pastor
^
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1094
273
strictly prescribes the circumscription of parishes and the
division of each diocese into parishes,2' and hence there is
but one secure way of settling the difficulty, vis.: to divide
each diocese into parishes, no matter how large or small,
and assign to each parish definite missions or stations.
Since the State is distributed into counties, and the coun-
ties into townships, there is no reason for putting off a
more definite ecclesiastical division usque in indefinitum.
Then the priest who attends a mission or station will be
dependent on the pastor of the parish to which the mission
is attached, and the latter has to delegate the necessary
faculties to him, either habitually — if the priest is merely
an assistant of the main pastor =a — or for each particular
case.
Besides the pastor, there are others who certainly meet
the requirements of the Code, viz.: (1) those mentioned
in can. 451, § 2, n. 2, as taking the place of a pastor with
full pastoral powers, i.e., actual pastors of an incorporated
parish or chapter; (2) the oeconomi or parochial admin-
istrators appointed by the bishops during the vacancy of a
then enjoys all the parochial right*
act forth in can. 46a. He publishes
the banns (can. 1023), and it is not
necessary that the publications be
made in the subsidiary chapel, un-
less the Ordinary should so order.
The position of the rector or chap-
lain of the subsidiary church is
regulated by canons 479-486.
However, there can be little doubt
that the Ordinary may extend his
rights. He miy grant him the
right to exercise parochial rights in
his own chapel, though only under
the supervision and with the con-
test of the pastor. The stole fees
must be turned over to the pastor
or be distributed pro rata according
to the synodal statutes or episcopal
provisions. The books roust be
kept by the pastor and all entries
from the subsidiary chapel or church
must be made in the parish books.
The faculties for hearing confes-
sions and preaching must be ex-
pressly imparted by the local Ordi-
nary. Thus, we believe, there
would be little difficulty in arrang-
ing matters according to the Code,
even in case the rector has a reai-
dence distinct from that of the
pastor. This was the case in for-
mer times when there was only one
(the cathedral) parish in each city
and the smaller rural parishes de-
pendent upon the larger or more
prominent ones.
21 Can. ai6.
Si Can. 1096, I 1.
►ogle
Original from
UNIVERSITY OF WI5C0NSI
274 MARRIAGE LAW
parish;9* (3) Substitutes who take the place of pastors
during vacation or a sudden absence, unless the bishop or
pastor excepts assistance at marriages;25 and (4) paro-
chial coadjutors or assistants given to a disabled priest, if
they take the place of the disabled pastor in all things.*8
2) The term Ordinary comprises all those mentioned
in can. 198, hence also the diocesan administrator, the
Abbas Nullius, the vicar-capitular and the vicar-general,
but not the superior of an exempt religious order.
Concerning delegation nothing need be said here, as
can. 1096 will call for a full explanation.
3) The witnesses to a marriage must be present si-
multaneously with the minister of the Church, and both
witnesses must be present at the same time."
As to the qualities of the witnesses, a distinction must
be drawn between valid and licit assistance.
Valid assistance can be rendered by all persons of either
sex who are physically and mentally able to realize the
meaning of the marriage contract. Non-Catholics, pa-
gans, and infidels are not excluded. But licit assistance
at Catholic marriages can be rendered only by Catholics,
unless the Ordinary for grave reasons permits the as-
sistance of non-Catholics, and provided no scandal is
given.28
With regard to the admission of Freemasons we could
find no positive prohibition. However, it appears certain
that at least prominent Masons are not easily to be admit-
ted,29 on account of the scandal that might arise to Cath-
olics. But the Ordinary may judge differently.
c
2* Can. 472- M S. O., Aug. 19, 1891 (.Coll. P.
aa Compare can. 474 with can. F., n. 1763).
465, 59 4 i. Note that the excep- 20 S. O., Aug. 21, 1861 (Coll. cit.t
tion must be made explicitly. n. 1219) says that these should be
zs Can. 475, I a. treated veluti publics peccatores.
»TS. C. P. P., July a. 1817
(Coll, n. 794).
gle
Original fro m
UNIVERSITY OF WISCONSIN
■
"■
CANON 1095 275
requisites on the part of pastor and ordinary
Can. 1095
§ z. Parochus et loci Ordinarius valide matrimonio
assistant :
i.° A die tantummodo adeptae canonicae posses-
sionis beneficii ad normam can. 334, § 3, 1444. § 1, vcl
initi officii, nisi per sententiam fuerint excommunicati
vel interdicti vel suspensi ab officio aut tales declarati ;
a.° Intra fines durntaxat sui territorii; in qua matri-
moniis nedum suorum subditorum, sed etiam non sub-
ditorum valide assistunt ;
3.0 Dummodo neque vi neque metu gravi constricti
requirant excipiantque contrahentium consensum.
§ 2. Parochus et loci Ordinarius qui matrimonio pos-
sunt valide assistere, possunt quoque alii sacerdoti li-
centiam dare ut intra fines sui territorii matrimonio
valide assistat
§ 1. The pastor and the Ordinary may validly assist at
marriages :
l.° Only from the day they have taken canonical pos-
session of their benefice, or entered upon their office, pro-
vided they are not excommunicated, or interdicted, or
suspended from office by a judiciary sentence, or de-
clared suspended ;
2.° Only within the boundaries of their respective ter-
ritory, in which, however, they may validly assist at mar-
riages not only of their own subjects, but also of non-
subjects.
3.0 Provided they are not compelled by violence or
grave fear to ask and receive the consent of the parties.
§ 2. The pastor and the Ordinary of the diocese, who
can validly assist at marriages, may also grant permis-
^ - I Original from
^ .OOglL UNIVERSITY OF WISCONSIN
276 MARRIAGE LAW
sion to another priest to assist validly within the limits
of their respective districts.
The first paragraph contains three distinct qualifica-
tions required in those who may validly assist at mar-
riages:
I ) The official or legal qualification is attached to the
official character of the functionary, and is twofold,
strictly official and juridical.
a) The strictly official character is acquired by the as-
sumption of an office. Hence the Ordinary as well as
the pastor must be in actual possession of his office.
The Ordinary takes canonical possession of the diocese
by presenting his papers (bulls) of appointment either
personally or by proxy, to the diocesan chapter or gath-
ering of consultors in presence of the episcopal chancel-
lor.80
The same is true concerning the Abbas or Praelatus
Nullius, because he must be confirmed by the Pope ; 81
the same also concerning the Administrator Apostolic. zt
The Vicar-capitular is in possession of his office after he
has been validly elected and has accepted the office."
The Vicar-general is in possession of his office as soon
as he has received and accepted the appointment.8* The
pastor, in the United States, is supposed, and justly so,
to have the title of parish-priest after he has received his
appointment to a pastorate. However, our text says
initi officii, which means actual entrance upon office. A
pastor may enter upon his office by merely taking posses-
sion of the parsonage in an informal way, or formally
with the usual ceremonies.
■
b) The juridical qualities are apparent from the nega-
80 Can. 334. I 3- " C*«- 435. I >-
ai Can. 330, I I. M Can. 368, | 1,
St Can. 313, I' 1.
jle
/"* ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 1095 277
tive description which says: unless they (the ordinary or
the pastor) be excommunicated, interdicted, or suspended
from office by a condemnatory or declaratory sentence"
Three ecclesiastical censures are here mentioned, ex-
communication, the interdict, and suspension. No dis-
tinction between major and minor excommunication is
made by the Code ; but the difference between an excom-
munication inflicted by the law itself and one meted
out by a judge is emphasized in the text. The former
(iure) requires merely a declaratory sentence after the
fact or deed which is proscribed under penalty of ex-
communication has been conclusively proved. But if an
ecclesiastical judge inflicts this penalty for a crime not
otherwise punishable by excommunication, he must not
only have legal evidence, but formally pronounce sen-
tence upon the culprit. It is immaterial whether the law
reserves a case to the Apostolic See or to the Ordinary."
The Ordinary may reserve three or four cases, even
under censure, and these too only need a declaratory
sentence, after the culprit has been convicted.
An interdict -is here understood to be a personal one, at-
tended by the consequences which the Code mentions else-
where."7 But we believe that for its infliction a formal
sentence is required."
Suspension from office implies, as the Code says,89 the
loss of every spiritual power, but not of the administra-
tion of temporalities, including assistance at marriages.
A priest guilty of trading with masses may be suspended,
M Compare the "Ne temtre": »7 Can. 3274 *•
" nisi publico drcreto nominotim an Comp. can. 3369, | 1 ; episco-
fuerint excommunicati vtl ab of- pus ferre potest.
ficio suspensi." (IV, | 1.) *tt Can. 2279, 8 1; iuch suspen-
se To the Ordinary are reaenred stona are mentioned in can. 2324,
by law the excommunications men- 2342, n. 1; 2347, n. 2; 2350, I a;
tioned in can. 2319; 2326: 2343. •*■'.; 2378; 239a, n. 3; 2394, n. 2.
335". I IS 2385; 2388, I a.
§le
/•^ ^ v ,|y. Original from
UNIVERSITY OF WISCONSIN
278
MARRIAGE LAW
but the sentence must be not merely declaratory, but
condemnatory.40 In fact, most suspensions require a con-
demnatory sentence.
After a priest has been declared excommunicated, in-
terdicted or suspended from office, or condemned to suffer
such a penalty, nothing else is required for disqualifying
him for the function here in debate, because the Code does
not mention a declaration or condemnation by name or
public decree. However, it seems reasonable to demand
that the parish be notified of the verdict. If this is not
done, it might happen that a tituhis putativtts would arise,
based upon a general error. In that case, of course, the
marriage would be valid.41 A bishop may be censured
by the Holy See only, a vicar-general, by his bishop.
2) The local condition is expressed by the boundaries:
the pastor is authorized to assist at marriages within the
limits of his entire parish, the Ordinary within the whole
of his diocese. And this holds concerning all marriages,
whether the parties belong to the respective parish or dio-
cese or to a foreign parish or diocese. Here is the cardi-
nal change, and a very practical one, from the Tridentine
law.*2
However, as no law can provide for all imaginable
cases, this, too, is not without difficulties, not so much
concerning the diocese, as the parish. For while dioceses
are almost always well defined and circumscribed, parish
limits are often uncertain and vague, especially in our
country. There are, for instance, in the cathedral city
of St. Joseph, Mo., eight parishes. The five English
speaking congregations are pretty well denned territori-
ally, and the two Polish churches are also set off be-
-
40 Cfr. can. 2334 and can. 827 f.
*i S. C. C* March 10, 1770 (Richter, Trid., p. 339, n. 51).
« Cfr. " N* timcre," Proccm.
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1095 279
■
twccn North and South, but the German parish lies be-
tween two English speaking parishes without any bound-
aries.48 A decision of the S. C. Concilii, Feb. I, 1908,
allows the pastor of the German speaking parish to assist
validly at all marriages, not only in his own church or
rectory, but also in any place within the entire district
over which he has jurisdiction together with the other
two pastors. If there were no boundary at all, the pastor
of the German church might validly assist at any marriage
in any of the eight churches or rectories. The conse-
quence is that the pastors of the English speaking con-
gregations, or of parishes with set boundaries, are worse
of! than this quasi-pastor of a foreign tongue.4* Re-
member, we speak only of valid assistance ; for it is within
the power of the Ordinary to punish any pastor who
would attempt to assist at marriages promiscuously with-
out regard to the rights of other pastors.
What lias been said so far may be applied to assist-
ance in a private house, should sickness (not involving
danger of death) render this advisable. For as long as
the pastor keeps within the boundaries of his district, or
(if his parish has no definite limits, as in the case of
the German priest mentioned above) within the bound-
aries assigned by other parishes, he observes the law,
and assistance is not limited to the church or rectory.
In another case a monastery of exempt regulars had
charge of a church which is not a parish church, but
situated within another parish. The question arose:
May the parish priest assist validly in that church? Yes,
said the S. Congregation.43 Of course this also applies
to Ordinaries.
■"■
4* Except, as far u we Vnow, to- 45 S. C. Sacr., March 10, 1910,
wards the east (Wyatt Park). ad VIII.
44 Cf r. Woywod, Marriage Law*,
& 14.
.'Ie
C* -» -. iL» Original from
UNIVERSITY OF WISCONSIN
28o MARRIAGE LAW
Canon 464, § 2, permits the Ordinary to exempt from
the pastor's care religious houses and pious institutions.
Who is to assist at marriages celebrated in such places?
The authentic answer " given is that the chaplains of
these places may validly assist at the marriages of such
parties as are committed to their care, but only in the
place where these chaplains exercise their jurisdiction
and provided they possess full parochial charge. This is
supposed to be the case when exemption has been granted
by the bishop.
Another case has been decided concerning a few fami-
lies who live in one parish, but for some reason or
other belong to another. May the pastor of the latter
parish assist at the marriage of such parties if it takes
place in the former? Yes, says a decision, provided that
at least one of the contracting parties belongs to him.4T
There is no stretching allowed. The persons and fam-
ilies concerned must be subjects of the pastor, and we
believe the Ordinary alone can decide whether a family
or person may belong to another than the locally defined
parish.
Military chaplains usually receive special instructions.
If not, the pastor within whose district the barracks or
camp lies, is per se competent for valid assistance at the
marriages of soldiers. In the field, the military chaplain
would be competent.*8
3) The last condition may be called ethical because it
requires an assistance that is a human act, performed
'■-.
4fl S. C. C, Feb. 1, 1908. ad X; 46 S. C. C, May 29, 1683; Sept
cfr. Richlcr, Trid., p. **8, n. 47- '9i *735 (Richter, /. c, p. ^34, n.
47 S. C C, Feb. 1, 1908, ad IX, 60 f.) ; S. C C, Feb. 1, 1908, ad
quoted by Card. Gasparri. Bui the VII. Of course, all depends upon
interpretation — which looks rather the instructions the army bishop
extensive — needed the addition : has received.
" facto vtrbo cum SSmo." Cfr.
Rlchter, Trid., p. 228, n. 44.
oogle
v ,|,,' Original from
UNIVERSITY OF WISCONSIN
CANON 1095 28t
with freedom and deliberation. Such an act excludes
all manner of physical compulsion. Hence if the pastor
would be perforce compelled to assist at a marriage, say,
by the police or by armed men surrounding his rectory,
the marriage would be invalid. Again if serious threats
of any kind would impede his freedom of action, the mar-
riage would be invalid by reason of grave fear. Placed
in such a position, an authorized witness may hardly be
said to ask for and receive the consent. Note well the
wording of the Latin text. Compulsion and fear must
influence the act of demanding and receiving the consent,
so that there is a causal connection between both. As
long as this compulsion or fear lasts, the marriage would
be invalid.40 The terms "requirere" and " excipere"
suppose a personal act on the part of the pastor; we might
style it cooperation, in order to distinguish it from purely
passive assistance, about which see can. 1102. Hence
surprise marriages are almost entirely excluded. Thus
a marriage whilst the pastor hears confession is hardly
possible any more; it happened once at Naples, in 1724,
but was declared invalid.60 On the other hand the Code
omits the words of the " AV temere " decree : " invitati ac
rogati" i. e., invited and asked by the parties. Suppose
a pastor is asked to a house in his parish for some reason
and there requested to witness a marriage. If he de-
manded and received the consent of the parties without
being compelled to do so by physical coercion or by grave
fear, the marriage would be valid. Purely human respect
is not tantamount to grave fear. Of course, the priest is
supposed to know what is going on. If a formula in a
foreign language of which he has not the faintest knowl-
■-■■
49 Such cases may be read in In Italy confeaaiona are often
Richter, Trid,, p. 334, n. 63; Bene- heard publicly on benches or chaira
diet XIV, Dt Syn. Diotc. XIH. aj. in the church.
50 Richter, Trid., p. 335 f., n. 65.
in
.■
>Ie
Original fro m
UNIVER5ITY-0F WISCONSIN
282 MARRIAGE LAW
edge were given him to read off, this act could not be
properly called human and would therefore be insufficient
for valid assistance.51 The rite is described in can. noo
ff.
The second section (§2) of canon 1095 permits dele-
gation or permission, and may just as well be explained
in connection with canon 1096.
REQUISITES OF DELEGATION
>
Cak. 1096
§ z. Licentia assistendi matrimonio concessa ad
normam can. 1095, § 2, dari expresse debet saccrdoti
determinato ad matrimonium determinatum, exclusis
quibuslibet dclegationibus generalibus, nisi agatur de
vicariis cooperatoribus pro paroecia cui addicti sunt;
secus irrita est.
§ 2. Parochus vel loci Ordinarius licentiam ne con-
cedat, nisi expletis omnibus quae ius constituit pro
libertate status cornprobanda.
Permission to assist at marriage, given under can.
1095, must be granted to a specified priest for a specified
marriage. General delegations are excluded, except in
case of assistant coadjutors for the parish to which
they are appointed ; in all other cases general delegation is
invalid.
The pastor or Ordinary of the diocese shall not grant
such a permission unless he has complied with the regula-
tions of the law for establishing the free status of the
nupturients.
Here we have the modus of delegation, after can. 1095
61 If the priest would merely riage would be valid; cfr. Richter,
feign or affect ignorance, the mar- Trid., p. 335, n. 6j.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1096 ■ 283
has stated the fact. Section 2 sets up a necessary condi-
tion.
1) Can. 1095, § 2, provides that a pastor or Ordinary
who himself can validly assist at a marriage, may give per-
mission to another priest to assist, if the marriage is to
be celebrated within the boundaries of the parish or
diocese, respectively. Hence it is required that the dele-
gans is himself entitled to assist. "Nemo dat, quod non
habet" But if a pastor or Ordinary is endowed with
the qualities described in can. 1095, § I, he may apply
the two Rcgulae Iuris in 6° which say that one may do
through another what one has a right to do himself, and
what is done by that other is as valid as if done by the
delcgans himself.58
2) The modus facti or manner of delegation is set
forth in can. 1096, § 1. Of delegation in general enough
has been said in Vol. II. Here we may note:
a) The delegation must be made to a priest, and hence,
as formerly," the priestly character is absolutely re-
quired.
b) Presumed delegation is not admissible. This is
a.
the meaning of the word expresse in the text. Therefore
even if probable conjectures, or former grants given with-
out the least opposition, furnished a presumption, it could
not supply express delegation, nor would it suffice for
valid assistance. The fact, also, that the priest must be
a
specified excludes presumption.
62 Reg. Iuris 68, 72 in 6*. mo*.: " Vel alio sacerdote de ipsiu*
Formerly even a censured pastor parochi sen Ordinarii licentia," al-
r 011 Id ,'i- <- permission to another though the pastor himself did not
priest. Sanchez, J. c. III, disp. 20, need to be a priest. If we call that
n. 7; disp. ftf, n. 1 f.; Ojetti, In permission delegation, this is done
lus Pianum, etc. Now, can. 2095, for the sake of convenience, be-
f 2, is loo definite to admit such cause it is st least similar to dcle-
_ a delegation. Ration. Wcrnz, /. c. IV, Vol. x, p.
OS /nil. 8CSS. 24, C. I, de ftf. 268.
oogle
Original from
UNIVERSITY OF WISCONSIN
284 MARRIAGE LAW
c) The delegated priest must be specified, or, as the
Latin has it, determinates. This is done by giving the
name in full, and if there should be two priests of the
same name, by adding his residence, office, or occupation.
Since this permission need not be given in writing, a
priest, if present, may receive the delegation there and
then.
Subdelegation is not excluded, but must take place in
the same specific manner. To insure the validity of
delegation in cases where it is uncertain whether the
priest who is asked by the pastor to assist at a marriage
will be free on the appointed day or may have to request
another priest to attend to the matter, it will be advisable
always to add " or any priest whom you may send." °*
d) Not only the priest, but also the marriage must be
specified. The wording of our canon is more precise
than that of the " Ne temere." It means that delegation
must be given for each single marriage, and not for a
number of cases in globo. For instance, a pastor would
not be allowed to grant permission to an Italian priest
to assist at all Italian marriages in his parish. On the
other hand, he may give permission, e. g., for 4* the five
marriages which occur during that week and the banns
of which have been published," because in that case the
marriages are sufficiently specified. The contracting par-
ties cannot be permitted to choose or call any one they
please without the pastor's consent.
e) The Code excludes all general delegation. It was
formerly customary in some large cities for pastors to
give permission to one another to assist at any marriage
that would come up. Such a general delegation, not-
withstanding the answer given by the S. Congregation,"
July 27, 1908, is no longer to be considered valid.
54Woywod, l. c, p. J3- bb S. C C, July *7, "9<»8f ad IV.
jle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 1096 285
f) An exception is made in favor of assistant priests,
as defined in can. 476, i. e., coadiutores or cooperotores.
These, says the Code, may receive general delegation
from the pastor. In illustration we may quote an au-
thentic interpretation.68 It happens, says the questioner,
that assistants of pastors are appointed by the bishop
without special faculties for assisting at marriages, and
it has become customary that these assistants, without
asking the pastor's permission, assist at marriages, be-
cause the pastor made no opposition, and they also reg-
istered the marriages under their own name ; nay in larger
parishes these assistant priests nearly always assist.
What is to be said concerning this custom? The answer
was that the marriages were valid, or rather that there
was no reason for scruples, but that the prescribed
rules should be observed and that the regulations laid
down by a provincial council could be enforced against
the pastors. Our Code makes reference to this decision."
In this country assistants, whose status is according to
can. 476, may validly assist at marriages with the general
or tacit delegation of the pastor. But this delegation is
not given if the pastor expressly reserves assistance at
marriages to himself.
as
It goes without saying that delegation entitles the as-
sistant (or delegate) to assist at marriages only in the dis-
trict subject to the delegans. The Ordinary, bishop or
vicar-general may delegate a priest to assist at marriages
in any parish of the diocese.
As to the qualities of the delegate our Code only says
that he must be a specified priest, without mentioning the
requirements or conditions laid down in the " Ne tetnere "
c
o
B« S. C. Sacr., March 13, 1910. atricted to aaairtanti as described in
B7 It ii quoted in Card. Gasparri't the text.
edition; but must certainly be re-
►ogle
£ ~ -. ^ ,l„ Original fro m
UNIVERSITY OF WISCONSIN
■
Q
286 MARRIAGE LAW
(art. VI). It seems certain, however, that a censured
priest could not validly be delegated, because an excom-
municated priest is not allowed to perform any ecclesias-
tical act,58 whilst one who is suspended from office loses
the right of exercising the functions attached to that office,
and in fact all rights connected therewith.*0 Besides it
would doubtless be a serious neglect of ecclesiastical dis-
cipline, amounting to contempt of weighty penalties, were
one to give permission to a censured priest to assist at
a marriage.
§ 2 repeats the necessity of ascertaining the free status
of the contracting parties before granting permission to
another priest to assist at their marriage. Hence the
pastor or Ordinary himself, and not the delegated priest,
must examine the parties, attend to the publication of the
banns, and, in case of doubt, conduct the necessary inves-
tigation, as explained under can. 103 1. This paragraph
docs not affect valid assistance.
REQUISITES OF LICIT ASSISTANCE
Can. 1097
§ 1. Parochus autem vel loci Ordinarius matrimomo
licite assistant:
i.° Constito sibi legitime de libero statu contrahen-
tium ad normam iuris ;
2.0 Constito insuper de domicilio vel quasi-domicilio
vcl menstrua commoratione aut, si de vago agatur,
actuali commoratione alterutrius contrahentis in loco
matrimonii ;
■
3.0 Habita, si conditiones deficiant de quibus n. 2,
licentia parochi vel Ordinarii domicilii vel quasi-domi-
cilii aut menstruae commorationis alterutrius contra-
&8 Can. 2263. G0 Cfr. can. 22S1, 2284.
;Ic
1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1097 287
hentis, nisi vcl dc vagis actu itinerantibus res sit, qui
nullibi commorationis sedem habent, vel gravis necessi-
tas intercedat quae a licentia petenda excuset.
§ 2. la quolibet casu pro regula habeatur ut matri-
monium coram sponsae parocho celebretur, nisi iusta
causa excuset; matrimonia autem catholicorum mixti
ritus, nisi aliud particular! iure cautum sit, in ritu
viri et coram eiusdem parocho sunt celebranda.
§ 3. Parochus qui sine licentia iure requisita matri-
monio assistit, emolumenta stolae non facit sua, eaque
proprio contrahentium parocho remittat.
§ 1. The pastor or the Ordinary of the diocese assist
at a marriage licitly :
1) After having ascertained the free status of the
contracting parties, as the Code prescribes (especially in
can. 1029-1031), and after the publications of the banns
have been made or dispensed from.
2) After having ascertained the fact of domicile or
quasi-domicile or monthly stay of at least one of the
parties in the place where the marriage is to take place, or
of actual stay in the case of vagi.
Note the four different kinds of local conditions which
affect, not the validity, but the licitness of assistance.
The first is domicile, that is to say, residence in a place
combined with the intention of remaining there forever,
if nothing calls one away, or actual residence for ten con-
secutive years.
Quasi-domicile is residence in a place with the intention
of staying there the greater part of a year. This inten-
tion, as we said under can. 92, may be present on the first
day on which one takes up his residence in a parish.00
A man who was hired for one year, or an official who has
•0 S. O., June 7. 1867 {Coll. P. F.t n. 1305).
G 1 Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
288 MARRIAGE LAW
taken up residence at the capital for the term of his
office, would certainly have a quasi-domicile. The same
is true of people who have a summer and a winter resi-
dence. The monthly stay, although apparently new in
this connection, is not entirely recent, so far as presump-
tion is concerned. For Benedict XIV stated 01 that a so-
journ of one month in a place permits the presumption
(praesutnptio iuris) that the party will stay there for the
greater part of the year. Here we have the genesis of
the monthly stay, which at first was merely an indication
of intention, which, being internal and secret, can not
easily be proved.08 From that, in order to do away with
scruples, the legislator prudently proceeded to the mere
fact of a month's stay, declaring it sufficient for licit
assistance.
A month must be taken as thirty consecutive days,9*
(though the calendar month of February would be suf-
ficient). These thirty days must be morally uninter-
rupted according to common parlance. Of course one or
two days' absence, even if repeated once or twice, would
not, properly speaking, interrupt that term.6* Neither is
any inquiry into the intention to be made.
The last kind of local residence is actual stay in the case
of vagi. A vagus is one who has left his or her domicile
or quasi-domicile and stays in no one place for thirty
days. Sometimes people move into a parish a day or
two before marriage and want to get married before
moving further. The evening of their arrival they go to
the pastor and ask to be married the next morning. Set-
ting aside for the moment the legal requirements, we
must say that the pastor may assist at their marriage.
«i " Paueit obhinc," March 19, M Cm. ja.
1738; S. O., /. c. «* VennecrKh, L c, p. 31, n. 581
ea S. O., /. c; Nor. 9, 1898 Woutera, t. c, p. 3a.
{Coll., a. 2025).
>Ic
v ,1,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 1097 289
But here there again arises tne question of diocesan dotni-
cile. Those who have a domicile or stay for a month
in a diocese cannot be called vagi** Who may assist
licitly at their marriage? The answer is: the pastor.
He must inquire about them, and if he finds that they
have moved about the diocese to which he belongs for
at least a month, he may marry them by reason of a
monthly stay in the diocese. If he finds that they have
roamed about in various dioceses, he may assist by rea-
son of their being vagi. However, a restriction must be
made. If we say, " the pastor may assist," we suppose
that the Ordinary has given him permission to do so.
The reason is that, as diocesan domicile cannot be con-
tracted in a parish," the proper superior of one who has
only a diocesan domicile is the Ordinary, and not the
pastor.87
Concerning minors, i. e.t such as are under twenty-one
years of age, they may follow the domicile 68 or monthly
stay of their parents or guardians, and besides, are en-
tided, in case of marriage, to be treated like those who
are of age, because the legislator makes no distinction.
Finally, we would draw attention to the text : alterutrins
contrahentis. If the bride has spent a month at a place,
she may get married there, although the groom has a
domicile in a different parish. The same holds good
concerning vagi. Thus if a rover has gotten a bride in
one place and wishes to move with her to another, the
pastor or Ordinary of the latter place, as explained above,
is allowed to assist at the marriage, even though the
groom returns with his wife to the latter's domicile the
day after.
ee S. C. S*cr., March 13, 1910, Nmow Ltgge sugli £>0im*Ii t *ul
ad V (A. Ap. S., II, 197). Matrimonio, ed. 4, 33! Woutert,
«• Can. 9a, fi 3. /, e., p. 31.
•T German, Brtvt Commtnto delta 81 Can. 93, I 1.
ogle
v ,|r> Original from
UNIVERSITY OF WISCONSIN
290 MARRIAGE LAW
3) If the conditions set down under the preceding
number (2) are not verified, the pastor or Ordinary, in
order to assist lawfully at a marriage, must have the per-
mission of the pastor or Ordinary of the place where
one of the contracting parties has a domicile or quasi-
domicile or monthly stay, except in the case of vagi,
who are actually on the road and have no residence or stay
anywhere, or unless a weighty reason excuses from de-
manding such permission.
James and Gemma wish to get married in the cathedral
parish of St. Joseph, Mo., where neither of them has a
domicile or quasi-domicile or monthly habitation, their
domicile being at Maryville, Mo., in the same diocese.
What is to be done? The pastor of the cathedral parish
must ask permission of the pastor at Maryville. But the
bishop of the diocese, if he wishes to assist at the mar-
riage in the cathedral parish, need not ask permission
from the Maryville pastor, because James and Gemma
are suppdsed to have lived in his diocese at least one
month. But if both parties belonged to the Kansas City
diocese, and wished to have their marriage performed by
the bishop of St. Joseph, the latter would have to ask
permission either from the pastor of the bride in the
Kansas City diocese or from the bishop of Kansas City.
No preference is given to domicile over quasi-domicile,
or to the latter over a monthly sojourn. Hence, if the
bride lived only one month in a parish, the pastor thereof
could give the permission, although the bridegroom might
have a domicile in a parish whose pastor is to be asked
for permission.60
This license is not required if there is a serious reason
excusing the pastor from asking it. The text says gravis
«oS. C. 8— ft, March 13, 1910 ad V; S. C. C, March a8, 1908
ad V.
oogle
, ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1097 291
necessitas, and therefore it must not be easily presumed,
because it is a violation of a strictly parochial right.70
A grave reason would be the probable fear of a civil
marriage, or the refusal of the parties' own pastor to
marry them — perhaps on account of some differences of
opinion, or of travelling expenses, or the accidental pres-
ence of parents or friends.71
§ 2. Every marriage should be performed before the
pastor of the bride, unless there are just reasons for break-
ing the rule. If the parties belong to different rites, their
marriage must be celebrated in the rite and before the
pastor of the bridegroom, unless particular laws dictate
otherwise.
The custom favoring the pastor of the bride is an old
one, but good or plausible reasons justify a departure
from it. Thus, for instance, military chaplains are pre-
ferred.72 Other reasons for deviating from it are sud-
den departure, elopement, objections raised by parents,
etc. As to the different rites, the Code here follows the
rule laid down in can. 98, and gives preference to the rite
of the bridegroom, adding, however, that particular laws
may dictate otherwise. Thus Benedict XIV had ruled
for the Greeks of Southern Italy and Sicily that if the
marriage was to take place between a Latin man and a
Greek woman, the pastor of the former should assist, but
if the man belonged to the Greek rite, he might choose
either, Latin or Greek.78 The bishops of the Ruthenian
and Latin rites of Lemberg made an agreement (Dec.
23, 1853) to the effect that marriages should always be
■"-
to Gcnnari, /. c, p. 27, and Ver- keep some documents at hand
meersch, /. c, p. 33, admit pre- which would prove the existence of
turned reason*. these reasons.
Ti Werni, 1. IV, Vol. I, p. 994, T2 lb., p. 09$.
prudently observes that the pastor 78 " Etsi fiastoralis," May a6,
who assisted for reasons should 174'* I VIII, n. XI f.
jle
£ * ^ .. -J,-. Original fro ni
UNIVERSITY OF WISCONSIN
292 MARRIAGE LAW
celebrated before the pastor of the bride, unless both
parties demanded the contrary.7* These regulations have
not lost their force, but persons who come to the United
States should not be troubled on account of them. As to
the Ruthenian Rite in our country, the following regula-
tions have been made by the Apostolic See: the Latin
rite must be followed if the marriage is contracted be-
tween a Latin man and a Ruthenian woman ; if the bride
is of the Latin and the groom of the Ruthenian rite, the
parties may choose the pastor of either rite."
§ 3. Pastors who assist at marriages without the per-
mission required by law, are not allozved to keep the stole
fees, but must hand them to the parties' own pastor. This
ruling follows, at least partly, from can. 463, § 3. The
present canon restricts the obligation of refunding to
cases of illicit assistance. Hence if the conditions pre-
scribed in this canon have been complied with, the stole
fee may be kept by the assisting pastor. This rule also
obtains in cases of necessity, where no permission was
required. The Ordinary is also bound by the law.
A strict parochial right can be claimed by the pastor
of the bride only, and therefore, if the pastor of the bride-
groom should assist against the former's will, the latter
(the bride's pastor) may see the bishop or vicar-general
about it. But restitution cannot be claimed in justice,
wherefore the Code says that the stole fee must be re-
funded to the parties' own pastor, not to the bride's
pastor.
Lastly the question may be asked: What about a
pastor whose congregation is scattered over more than
one parish — e . g.t an Italian pastor whose people are dis-
Q
"■
T4S. C P. F.f Oct 6. 1863 CAm. Eccl. R*v., Vol. XXXVII. p.
{Colt., n. 1243). sia).
TS Lit. Aposi., Jrae 14, 1908
.'le
£ - ^ , ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1098 293
tributed throughout a city where there arc other parishes
territorially divided ? . This case, so far as we are aware,
has not been authentically decided. But it stands to
reason that if an Italian should marry a girl of an
English speaking parish, the pastor of the latter would
be entitled to assist, unless the groom refused to go to
him. Besides, we believe that if the bride would join the
Italian congregation a month before the marriage, the
pastor of the English parish would forfeit every right
to assistance.76 At any rate the Code permits the pastor
of the bridegroom to judge of the sufficiency of the rea-
sons.
two special cases
Can. 1098
Si habcri vel adiri nequeat sine gravi incommodo
parochus vel Ordinarius vel sacerdos delegatus qui
matrimonio assistant ad normam can. 1095, 1096:
i.° In mortis periculo validum et licitum est matri-
monium contractum coram solis testibus ; et etiam ex-
tra mortis periculum, dummodo prudenter praevidea-
tur earn rerura conditionem esse per mensem dura-
turam ;
2.0 In utroque casu, si praesto sit alius sacerdos qui
adesse possit, vocari et, una cum testibus, matrimonio
assistere debet, salva coniugii validitate coram solis
testibus.
P
If the pastor, or the Ordinary, or a priest delegated
T6 A decree of S. C. P. F., April mined that a party sufficiently con-
26, 1897, rules that anyone who is versant with Italian — because he
sufficiently versed in the English or she had been in Italy for a num-
language may freely choose an ber of years — may join an Italian
English speaking congregation. congregation.
Conversely it may justly be main-
sd by GoOgle
% ,] , Original fro ni
UNIVERSITY OF WISCONSIN
294 MARRIAGE LAW
by either, as prescribed by can. 1095 an^ 1096, cannot
be had without great inconvenience, then :
1) In danger of death marriage may be validly and
licitly contracted in the presence of two witnesses; the
same holds good also where there is no danger of death,
provided it may prudently be foreseen that this condition
of things will last for a month.
2) In both cases, however, if a priest is available, he
must be called and assist at the marriage together with the
two witnesses; but the marriage is valid if contracted in
the presence of the witnesses alone.
The wording of our canon betrays a modification or
mitigation of the " Nc temcre" (VII and VIII).
1. The danger of death need not be imminent.77 but
it must be probable or likely. Neither, of course, is it
necessary that both parties be in danger.
2. The second case touches peculiar conditions. It may
happen in our country that a pastor visits his mission
only once a month or even less often. Note the word-
ing of the text, which says nothing of a region or dis-
trict.78 Therefore it must now be held that provincial
or regionary reasons have nothing to do with the case, but
merely personal reasons, which indirectly may be due to
local conditions, arc here considered. But the condition
must last one month (thirty days) or rather it must be
foreseen that it may last that long.
3. That assistance without the pastor or the Ordinary
or a delegate of either be allowable and the marriage be
valid, the impossibility of having such an authorized
witness must be verified. The text says: (a) if they
cannot be had or reached (haberi aut adiri). The first
term, to have, means that the pastor cannot come, or is
7TThe "Ne t*m*r*" bad that 78 " Ne temtrc " read* : m aliqum
apposition. rtgiont.
oogle
i*^ -» ^ -J,-. Original fro m
UNIVERSITY OF WISCONSIN
CANON 1098 295
not available because of sickness, or absence, or for some
other reason. To reach or to approach signifies that
the parties themselves have made an effort to get the pas-
tor by calling him by ordinary means of communication,
i. e„ letter or messenger. The telegraph and the telephone
are not regarded as ordinary means, and justly so, for
a country telephone line is often not only unsafe, but
liable to abuse on account of the publicity involved.
Moreover, conditions may be unsafe for travellers, as in
times of war, flood or quarantine, (b) The text further-
more says: without great inconvenience, which is a rather
■elastic term. An inconvenience would be great if the ex-
penses were above the means of the parties concerned,
or if one party would have to leave the other alone
sick. Now-a-days automobiles are a great help to swift
and agreeable travelling. The parties themselves must
conscientiously judge as to the character of an existing
inconvenience, (c) The text also says that in case of
sickness or other impossibility a priest should be called
who can be present. This priest may be any priest, even
one under censure, or of some other diocese, because
" qui adesse possit " must, we believe, be taken in the sense
of physical, not moral, possibility. But the priest must
be at hand {si praesto sit) ; the parties need not search for
him. The assistance of a priest at the marriage is very
convenient, because he may dispense from the impediment
of clandestinity and others (can. 1043) if there is danger
of death. This is the meaning of an answer given by the
S. Congregation79 to the following query: " In several
districts the pastors are not allowed to assist before the
civil marriage is contracted ; and yet this cannot be done
in every instance, although for the spiritual welfare of
the parties it would be expedient to have them married.
TBS. C. Sicr., Jan. ji, 1916 (4. Ap. S.r VTU, p. 36 U.
§le
k ,1,., Original from
UNIVERSITY OF WISCONSIN
296 MARRIAGE LAW
What should the Ordinaries do? Resp. Recourse must
in each case be had to the S. Congregation, except when
there is danger of death, in which case any priest may
dispense." (d) Lastly, calling a priest does not affect the
validity of the marriage, which therefore may be con-
tracted validly in the presence of only two witnesses. We
hardly believe that the second case is of frequent occur-
rence now-a-days, except in missionary countries.
extent of the law with regard to the form
Can. 1099
§ 1. Ad statutam supcrius formam servandam tenen-
tur:
1. Omnes in catholica Ecclesia baptizati et ad earn
ex haeresi aut schismate conversi, licet sive hi sive illi
ab eadem postea defecerint, quoties inter se matri-
moniurn ineunt ;
2.' I idem, de quibus supra, si cum acatholicis sive
baptizatis sive nan baptizatis etiam post obtentam dis-
pensationem ab impedimento mixtae religionis vel dis-
paritatis cultus matrirnoniurn contrahant;
3.0 Orientates, si cum latinis contrahant hac forma
adstrictis.
§ 3. Firmo autem praescripto § i, n. 1, acatholici sive
baptizati sive non baptizati, si inter se contrahant, nul-
libi tenentur ad catholicam matrimonii formam servan-
, dam; item ab acatholicis nati, etsi in Ecclesia catholica
baptizati, qui ab infantili aetate in haeresi vel schis-
mate aut infidelitate vel sine ulla religione adoleverunt,
quoties cum parte acatholica contraxerint.
■
§ 1. The following are bound to observe the form pre-
scribed above :
r.° AH persons baptized in the Catholic Church, as
>Ie
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1099 297
well as those converted from heresy or schism, even though
they (whether Catholics or converts) have afterwards
fallen away, as often as they contract marriage among
themselves ;
2.0 Catholics as well as converts (n. 1) who marry
non-Catholics, either baptized or non-baptized, even after
having obtained a dispensation from the impediment of
mixed religion or disparity of cult ;
3.0 Orientals who marry persons of the Latin Rite
who are bound by that form.
This first section of can. 1099 positively and exhaus-
tively enumerates all those classes of persons who are
obliged to observe the form laid down in can. 1094.
I.° The first class is that of Catholics marrying among
themselves. It is important to define more closely the
terms used in the text.
(a) " Omnes in catholica Ecclesia baptizati" all per-
sons baptized in the Catholic Church. Baptized in the
Catholic Church is a phrase not so easily interpreted as
would appear at first sight.80 No doubt those are " bap-
tized in the Catholic Church " who, by their own free
will, or the will of their parents or tutors, have become
incorporated in the Church through Baptism. This in-
tention is even more evident if the minister employed the
Catholic rite. Neither may there be doubt as to Catholic
Baptism conferred in case of necessity, if the parents are
known to be Catholics; or, where one is not a Catholic,
the party that exercises the decisive influence in the mat-
ter of education is a Catholic.81 But what if the child
■
80 The Am. Eccl. Rrv., iq 14, Vol. •'baptized in the Church"; the
tl> ?■ 359. contains a case in point, rights of parents are curtailed by
but I cannot agree with the au- this interpretation,
thor's contention that only a child fll S. O., Aug. 1, 1883, ad 5
baptised by an official of the Cath- (Coll. P. F„ n. 1605); Werna, L c,
olic Church nay be looked upon as IV, VoL I, p. 305.
jle
£ " -» v J„ Original fro m
UNIVERSITY OF WISCONSIN
298 MARRIAGE LAW
was baptized in a foundling asylum or hospital, the char-
acter of which is not exactly Catholic; or if the Baptism
was conferred in a Catholic asylum by a non-Catholic
physician or nurse, who did not know the religion of the
parents? For instance, if a Jewish physician or nurse
had baptized a child, could that child be called " baptized
in the Catholic Church"? To the general intention "to
do what the Church does," 82 another would have to be
added, vis., that of making the subject to be baptized a
member of the religious body known publicly as the Cath-
olic Church. In other words, the Jewish physician or
nurse would have to have the intention of incorporating
the child into the Catholic Church. Such an intention
cannot be presumed, but must be proved. It may be
proved by the baptismal record, which should therefore
contain, in such cases, a clause indicating the minister and
his intention. If it be objected that there is only one
Baptism and one Church, and therefore Baptism inevi-
tably makes the baptized person a Catholic, we reply:
All that is true, dogmatically speaking, and it is also true
that by Baptism one is subjected to the whole law of
Christ and no longer free to reject the precepts of the
Church." However, the supreme legislator of the
Church has the power to exempt certain individuals, or
any class of individuals, from the observance of eccle-
siastical laws which would otherwise be binding on them.
Thus practice and theory have introduced a mitigation
concerning non-Catholics, as shall be seen under § 2.
The legislator, therefore, by emphasizing the term Cath-
olic Baptism, doubtless wished to distinguish it from
Bl< The " intentio facitndi id quod nor may ft simply be attributed, as
farit ecclesia " is indeed always re- interpretive intention, to the child,
quired, but to interpret it as the 83 Trid., sess. 7, can. 7 f., de
intention of the irut Church can- baptismo.
not be required of non-Catholica,
;Ie
* J ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 1099 299
other baptisms, otherwise he would have simply said:
Otnnes baptisati, all baptized persons, as in can. 1015
and 1016. Rut no private interpreter has the right to
read the words " in the Catholic Church " into a canon
which does not expressly contain it.
(b) "Ad earn ex haeresi out schismate conversi,"
those converted to it [the Catholic Church] from heresy
or schism. Whilst the former class may be styled
original Catholics, this second class is that of converts.
Conversion is a change from heretical or schismatical
belief to the Catholic faith, in the sense of the text.
Whether it is brought about by the converts themselves, or
by extraneous agencies, is immaterial here. Thus parents
may determine the religion of their children as long as
these have not attained to the use of reason, and even if
they have reached the age of reason, the parents may
bring them up as Catholics. Even grandparents may
offer their grandchildren for Catholic Baptism, pro-
vided they guarantee their Catholic training.84 However,
if children, when they commence to realize the difference
between religions, object to embracing the Catholic reli-
gion, which the parents would impose on them, there
is no conversion to the Catholic faith.85 Conver-
sion, therefore, either from heresy or schism, must have
taken place knowingly or unknowingly, through the me-
dium of parents or tutors, some time before the marriage.
(c) " Licet sive hi sive Mi ab eadem postea defecerint"
although either these [converts] or those [original Cath-
olics] may afterwards have fallen away. Broadly speak-
ing, apostasy from the Catholic faith does not change,
with regard to our canon, the fact of being a Catholic.
An apostate is considered a Catholic before the ecclesias-
«• o___j:_» vr\r 'i
•* Benedict XIV, " Pottrcmo hb Wernx, /. c, IV, Vol. I, p.
mtnzt," Feb. 28, 1747, | 17. 306.
►ogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
300 MARRIAGE LAW
tical law. We may quote here an answer given by the
S. Congregation, to the effect that it does not matter
whether one fell away in childhood, or youth, or later,
provided he was baptized a Catholic.88 Therefore deli-
cere, to fall away, may be a voluntary or an involuntary
act, brought about through the agency of others, just as
in the case of conversion. The consequences will be seen
in n. 2 and § 2.
(d) This law is binding on such as contract marriage
among themselves. Therefore if James, a baptized Cath-
olic but fallen away before marriage, wishes to marry
Gemma, a Catholic convert, who renounced her religion
when she became engaged to him, he has to do it before
a Catholic priest and two witnesses, otherwise they are
not married according to Catholic law. If it is asked,
before what pastor they must marry, the answer is, any
pastor may assist validly, and in our case, also licitly,
within the limits of his parish.
2° This paragraph concerns mixed marriages. It
provides that original Catholics as well as converts are
bound by the law if they marry non-Catholics, no matter
whether the latter be baptized or not. A dispensation
from the prohibitive impediment of mixed religion or
from the nullifying impediment of disparity of cult does
not neutralize this formal requirement. This last clause
was not superfluous because confusion had arisen between
the two impediments of clandestinity and mixed religion,
so that some were led to assume that dispensation from the
latter would also include dispensation from the observance
of the required form. Surprise may be caused by the
omission of the clause appended to IX, § 2 of the " Ne te-
mere," which reads : u Unless the Holy See should have
■e S. C. C* Feb. t, 1908: " d*fee*ru*t, «Hom in juvtnili v*l infantili
aetate,"
oogle
v ,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 1099 301
decreed otherwise for some particular place or province."
This refers to the constitution of Pius X, " Provida,"
of Jan. 18, 1906, given for the German Empire, and
only to that, every other decree, even the Declaratio Be-
nedictina for the Netherlands (Nov. 4, 1741) being de-
clared null and void.87 Now the "Provida " is also abol-
ished, because the exempting clause is omitted and no
reference made to any particular legislation. Therefore
also the extension to the Kingdom of Hungary made by
the Roman Pontiff, Feb. 23, 1909, is no longer in force.
There is no longer any favored country concerning this
point of matrimonial law.
3.0 Orientals, i. e., such persons as belong to the united,
not to the schismatic, Church of the Oriental rite (Greek,
Syriac, Armenian; Coptic), are not bound to the new
form if they contract marriage among themselves, be-
cause the Code does not legislate for them.88 But if an
Oriental wishes to contract marriage with a person of
the Latin rite, he must conform to the law of the Latin
Church and get married before a priest and two wit-
nesses.88 If an Oriental Catholic should wish to marry
a non-Catholic, say an Anglican, he would not be obliged
to observe the form. But if the Anglican party had
been baptized in the Catholic faith, or converted to it
and remained in it after childhood, the Catholic form
of marriage would be required.
§ 2. Saving the rule in n. i, § 1 of this canon, non-
Catholics, whether baptized or not, who marry among
themselves are nowhere bound to observe the Catholic
form of marriage. Neither are those born of non-Cath-
olic parents and baptized in the Catholic Church, but who
have grown up from childhood in heresy or schism or
ST S. C. C, Feb. 1, 1908, ad IV. bo S. C. C, March z8, 1908, ad
88 Can. 1J S. C C, Feb. 1, 1908, II
ad I.
oogle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
302 MARRIAGE LAW
infidelity, or without any religion at all, if they marry a
non-Catholic party.
The two clauses of this section refer to two classes
of contracting parties, the one constituting purely non-
Catholics, the other supposing that one of the parties
once belonged to the Catholic Church by baptism in the
same.
The first category is that of purely non-Catholics, i. e.,
such as are neither original Catholics nor converts to the
Catholic faith. If they were such, or if one of the parties
was such, they would fall under § I, n. I, and would be
bound to observe the form prescribed. But purely non-
Catholics, whether baptized or not, if they marry among
themselves, are not bound by the Catholic form.00 This
is new legislation, as far as its general extent is con-
cerned.*1
The second clause affects persons born of non-Catholic
parents and baptized in the Catholic Church. " Ab acatho-
licis nati," born of non-Catholics, obviously means that
neither the father nor the mother belonged to the Catholic
Church. In the case of an illegitimate child it suffices
that the mother was not a Catholic, because the father is
supposed to be unknown. This may be safely extended
to a child born after his father's death.81 The text sup-
poses that this child was baptised in the Catholic Church,
and therefore would fall under the ruling of § i, n. I.
But there is also a second supposition, viz., that the child
grew up to the seventh year in heresy or schism or infi-
delity or without any religion at all. The seventh year
certainly is a line of demarcation and may be taken as a
safe limit, even though signs of malice or indicating the
00 Nor. 4, 1741. 4, 174I1 were only made for the
01 The Declaratio Bcntdictina Netherlanda.
and that of the S. C. C, of Nov. w Can. 90.
ogle
% ,| , Original from
UNIVERSITY OF WISCONSIN
CANON 1099 303
use of reason may have been manifested. But after the
seventh year the use of reason is presumed, and therefore
the child is no longer in infantili aetate, unless it can be
proved that it was destitute of reason after the seventh
year.98 A third supposition is that it grew up either in
heresy, or schism (Russian, Greek, Jansenist), or infidel-
ity, or without any religion.0* This, of course, supposes
a heretical, schismatic or irreligious education. If a child
has been educated in the Catholic faith before the seventh
year was completed, it can not be said to have grown up in
a sectarian or irreligious atmosphere, and must therefore
be considered a Catholic. The last condition is that a per-
son baptized a Catholic, — but now practically speaking a
heretic or schismatic or unbeliever, if he marries a non-
Catholic, is not bound by the Catholic form.*
In conclusion we draw attention to the individual char-
acter™ of the marriage contract which has been a rich
source of canonical speculation. For it is the common
teaching of canonists that, if one of the parties was ex-
empt from the law of " Tametsi " (concerning the Catho-
lic form), the other party also was free in virtue of the
individual character of marriage, or rather by reason of a
communication of the exemption. This principle is in it-
self perfectly correct and must be upheld in every bilateral
contract. But the supreme legislator is empowered to
declare in every single case whether or not such a com-
munication takes place, and in the case of the impediment
of clandestinity he has now spoken for the whole world,
as Pius X had done in the "Ne temere" in which he
exempted the German empire from its observance. The
redeeming word has been uttered : in the case of the law
..-.
»8 Can. 8gf % 3- * See Appendix IT to this volume.
t4 S. O- April 6, 1859 iColl. P. 06 See Arekiv far K.-R., iqoo,
F., o. 1 174). Vol. LXXX, p. 469 ff.
I Original from
' K H 'gie UNIVERSITY OF WISCONSIN
304 MARRIAGE LAW
obliging the observance of the Catholic form, mixed mar-
riages are to be contracted like Catholic marriages as far
as the mere form is concerned. Therefore, even if the
non-Catholic party is not obliged to observe this form,
he or she can no longer communicate his or her exemp-
tion to the Catholic party.
marriage rites
Can. 1 100
Extra casum necessitatis in matrimonii celebratione
serventur ritus in libris ritualibus ab Ecclesia probatis
praescripti aut laudabilibus consuetudinibus recepti.
Outside the case of necessity, the rites prescribed in
the liturgical books approved by the Church or received
by praiseworthy custom are to be observed.
Wiclif and Huss depreciated the sacred rites of
the Church in the administration of the Sacraments and
the solemnization of marriage. Therefore those sus-
pected of sharing their errors were asked whether they
believed that a Christian contemning those rites was
guilty of a grievous sin.08 This interrogation proves that
the Church insists upon the ceremonies with which she has
surrounded the celebration of marriage, and that, except
in cases of necessity, their omission is a grievous trans-
gression. The rites to be observed are those contained
in the Roman Ritual, which should be followed every-
where, unless praiseworthy customs have introduced a
somewhat different one. In South Shantung Chinese
bridal couples are excused from joining hands because
this custom is repulsive to them.8' The natives of Pondi-
-
<
06 Martin V, " Inter cuncttu," at S. O., July 30, 1890 (Coll. P.
Feb. aa, 141S, art. 19 (Denzmger, P., n. 1736).
». S6j).
Q
>Ie
% ,] , Original fro m
UNIVERSITY OF WISCONSIN
CANON noi - 305
chery use, instead of a wedding ring, an emblem called
taly, which custom is admitted by Rome.*8 Note that the
text says praisnvorthy customs, which means that such
customs must be reasonable and free from superstition."
THE CATHOLIC MARRIAGE RITE
T
Can. iioi
§ 1. Parochus curet ut sponsi benedictionem sollem-
nem accipiant, quae dari eis potest ctiam postquam diu
vixerint in matrimonio, sed solum in Missa, servata
speciali rubrica et excepto tempore feriato.
§ 2. Sollemnem benedictionem ille tantum sacerdos
per se ipse vel per alium dare potest, qui valide et licite
matrimonio potest assistere,
§ 1. The pastor should take care that the spouses re-
ceive the solemn, nuptial blessing, which may be imparted
even after they have lived in the matrimonial state for
a long time, but only at Mass, according to the special
rubrics provided for the purpose, and on days not for-
bidden.
§ 2, The solemn blessing may be imparted only by the
priest or his delegate who is validly and licitly authorized
to assist at the marriage.
How seriously the law concerning the nuptial blessing
is to be taken may be seen from an instruction of the
Holy Office,1 which says that absolution may be denied
to those who refuse to receive that blessing. Surely a
great neglect, the same instruction says, is that which
spurns the special graces and the spiritual aid attached to
a
98 S. O., Feb. 3. "89a (it., n. »» S. O., ib.
1782); but the priest must subtti- 1 S. O., July 6, 1817 {Cell. P.
tote: " lesser am hanc nnptiolem" P., n. 725).
p
>Ie
k ,1,, Original from
UNIVERSITY OF WISCONSIN
306 MARRIAGE LAW
these sacred rites. Hence also the grave obligation of
the pastor to instruct the people to that effect.
This blessing may also be imparted to a couple that
never received it, no matter how long the parties have
lived in the married state. But in such a case the one
who blesses such a validly married couple must tell them
that this blessing has nothing to do with the validity of
their marriage and must not require a renewal of the
marital consent. Hence the question: Wilt thou take,
etc., and the " Ego coniungo vos, etc., must be omitted.2
During the forbidden seasons of Advent and Lent this
blessing must not be bestowed on a couple already mar-
ried.
As to § 2 the law establishes nothing new, but draws
the consequence from the regulations made concerning
valid and licit assistance, and extends it to the blessing
to be imparted to a couple already married.
It may not be superfluous to state the lihtrgical rules
for the celebration of marriage.
I. The Ritual or Private Blessing.3 The priest asks
the consent of both parties: N. wilt thou take N. here
present, etc., to which both answer: I will. Then the
priest says: Ego coniungo vos, etc., after which fol-
lows the blessing of the ring. The bridegroom puts the
ring on the finger of the left hand of the bride. Then
the priest blesses the couple : Confirma hoc, etc. This is
all that belongs to the Ritual Blessing. This would be the
form for Catholic marriages during the forbidden seasons
or outside the nuptial mass. However, since, according
to can. 1108, the bishop may permit the solemn blessing
even during the " holy " seasons, we will now see what this
is.
2S. O., Jan. 15, 1784; S. C P. sCfr. Ritual* Rom., tit VII, c
F., 2i, 1841 (Co//, cit., nn. 566, 2 (Ed. Pustet, 1913. P- **4 *•).
P
933).
►ogle
v ,|r> Original fro m
UNIVERSITY OF WISCONSIN
CANON noi 307
2. The Solemn Blessing* comprises (a) the Ritual
Blessing just described, to be imparted by the priest vested
for holy Mass, except the Maniple, which he assumes
after the blessing, (b) The Nuptial Mass,6 either that
Pro Sponso et Sponsa, or a Mass of the day. The
Missa Pro Sponso et Sponsa is a Votive Mass and must
therefore be said without the Gloria and Credo and with
Benedicamvs at the end. This must also be observed
when the Mass is solemnly sung, and no contrary custom
may be tolerated.8 The second or third oration must be
added according to the rubrics for the respective day.
This Mass also contains two prayers for the spouses, one
after the Pater Noster (" Propitiare"), the other be-
fore the * Placeal," both to he said by the priest facing
the couple. This Mass may be said on all days not pro-
hibited by the rubrics. The rubrics forbid this Votive
Mass on the following days: all Sundays and holydays
of obligation, all holydays of the first and second class
within the octaves of Epiphany, Easter, Pentecost, and
Corpus Christi, all privileged vigils and ferial days, ex-
cluding feasts of the 1st and 2nd class.7
On these forbidden days the Mass of the day (de festo
vel die oecurrente) must be said. However, the orations
taken from the formulary of the Mass Pro Sponso et
Sponsa must be inserted after the oratio diet and other
orations, if such are prescribed in the Ordo, but before the
imperata. On holydays like Epiphany, Trinity Sunday,
Corpus Christi, or others which exclude any other ora-
tions, the Oratio Pro Sponso et Sponsa is to be added
* Cfr. Wapelhorst, Compendium 7 S. RtL C, June 14, 1918 (.4.
S. Lilurgiae, 1915, p. 485 f. Ap. S., X, 332), Vigils are the
8 S. Rit C, March 3, 1818 days preceding Epiphany, Pentecost,
{Coll. P. F,, n. 728). Christmas; the privileged ferial
* S. Rit. C, Aug. ji, 1839 .:'•■., days are Ash Wednesday and Holy
n. 890). Week.
'le
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
308 MARRIAGE LAW
sub unica conclusione* If the bishop, according to can.
1108, permits solemn celebration during the forbidden
time^even on Christmas or Easter, the same orations,
sub unica conclusione, must be added to the oration or
orations of the day. And whenever the orations Pro
Sponso et Sponsa are said, the special orations after the
"Pater Noster" and before the " Placeat" must also be
recited.
We add from a decision of the Holy Office fi the fol-
lowing points : When several couples are to be blessed,
which is permitted, the officiating priest must ask the con-
sent of each couple separately and say over each sep-
arately the words : " Ego vos coniungo" He may bless
all the rings simultaneously and also recite the prayers
in the plural form. He is not obliged to apply the
Mass for the parties unless he has received a stipend.10
In " black " Masses no nuptial blessing is to be given.
The same priest who has given the blessing must sprinkle
the parties kneeling at the altar, but the pastor may receive
the marriage consent according to the Ritual, and another
priest may, with the pastor's or the Ordinary's permission,
impart the nuptial blessing, i. e., say the nuptial Mass.
»-
z
c
ceremony for mixed marriages
Can. i 102
• '
a
§ i. In matrimoniis inter partem catholicam et par-
tem acatholicam interrogationes de consensu fieri de-
bent secundum prae script um can. 1095, § 1, n. 3.
§2. Sed omnes sacri ritus prohibentur; quod si ex
hac prohibitione graviora mala praevideantur, Ordina-
s Ibid. id Of course he may receive only
■ Sept. 1, 1841 (Coll. P. F., a. one stipend, but stole fees from
938). each couple.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1102 309
rius potest aliquam ex consuetis ecclesiasticis caere-
moniis, exclusa semper Missae celebratione, permittere.
In marriages between Catholics and non-Catholics, the
consent must be asked as prescribed under can. 1095,
§ I, n. 3. AH sacred rites are prohibited. If, however,
greater evils should be foreseen from this prohibition,
the Ordinary may permit one or the other of the usual
ecclesiastical ceremonies, always exclusive of the nuptial
Mass.
The first clause admits the so-called passive assistance,
sometimes also styled "bare, simple, and material as-
sistance." " Strictly speaking, this does not even include
the words : " Ego vos coniungo" etc.12 However, since
the Code requires that the consent be asked and received,
it stands to reason that the term passive assistance must
here be taken with a grain of salt. The question ad-
dressed to both parties separately: "Wilt thou, etc.?"
cannot be omitted. After both have given their consent,
they join hands and recite severally the formula, " I, N.
N., etc." Thereupon the priest may say : " By the au-
thority committed to me, I pronounce you united in the
bonds of matrimony." Then the bridegroom puts the
ring on the finger of the left hand of the bride, saying:
"With this ring I thee wed, and plight unto thee my
troth."18 A brief sermon or exhortation before and
after the ceremony is permitted if the bishop or custom
allows it.14 Of course, the priest may not wear surplice
and stole, but only the black cassock.10
The second clause admits the Ritual Blessing in cases
US. C. P. F., Sept. 6, 1785 l*S. O., July 16, 1885 (Coll.
(Coll.. n. 579). cit., n. 1638).
11 S. O., Aug. I, i8ji (Colt, cit., IS IMA A surplice is permitted
n. f6a), if the parties demand some ornn-
18 See Ercerpta ex Rituali Ro- mental dress; S. 0-, Dec. 9. 1874
mono, ed. 14, p. 343. {Coll. cit., n. 1437).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
310 MARRIAGE LAW
where the Ordinary thinks it necessary in order to avoid
greater evils, as the Instruction of the Secretary of State,
Nov. 15, 1858, says. These greater evils are described
in a letter of the Holy Office, Nov. 26, 1862, as follows:
(1.) If the refusal of said assistance would give rise
to complaints and animosity on the part of non-Catholics
against the faithful and the laws of the Church;
(2.) If the contracting parties would otherwise go to
a non-Catholic minister or church, either before or after
the marriage ;
(3.) If there were reason to fear that the promises
made at mixed marriages would remain unfulfilled.16
This enumeration must not be looked upon as ex-
haustive, but peculiar circumstances should 'be taken
into consideration by the Ordinary, who is the judge
as to the existence of probable evils. Only one rule is
added in the last-named instruction, 7ns.: that Ordinaries
should not give the permission at random and indis-
criminately, nor proclaim it as a rule, but make prudent
and cautious use of their power.
The nuptial Mass is always excluded, even in cases
where the Blessing of the Ritual is permitted. From this
rule the Roman Court has never departed. When
asked17 whether a private Mass could be said after the
marriage in the presence of the bridal couple and their
suite, even though the spouses would not occupy prom-
inent seats thereat, the Holy Office answered negatively,
if any suspicion could arise that the Mass would be re-
garded as part of the marriage ceremnoy. Of course, if
the couple wishes to assist privately at a Mass said after
the marriage, no one can hinder them.18
lfl Coll. P. F., n. 1 169; S. 0., a stipend from the couple for that
J»n. 3, 1871 {Coll., n. 163a). mm, but it would be imprudent to
it S. O., Jan. 17, 187*. announce the fact.
is The priest may even receive
jle
£ * -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 1 103 311
recording marriages
Can. i 103
§ x. Cclebrato matrimonio, parochus vcl qui eius
vices gerit, quamprimum describat in libro matrimoni-
orum nomina coniugum ac tcstium, locum et diem
celebrati matrimonii atque alia secundum modum in
libris ritualibus et a proprio Ordinario praescriptum ;
idque licet alius sacerdos vel a se vel ab Ordinario
delegatus matrimonio adstiterit.
§ 2. Praeterea, ad norrnaxn can. 470, § 2, parochus in
libro quoque baptizatorum adnotet coniugem tali die
in sua paroecia matrimonium contraxisse. Quod si
coniux alibi baptizatus fuerit, matrimonii parochus no-
titiam initi contractus ad parochum baptismi sive per
se sive per Curiam episcopalem transmittal ut matri-
monium in baptizatorum librum referatur.
§3. Quoties matrimonium ad normam can. 1098
contrahitur, sacerdos, si eidem adstiterit, secus testes
tenentur in solidum cum contrahentibus curare ut ini-
tum coniugium in praescriptis libris quamprimum ad-
notetur.
1. As soon as possible after the marriage ceremony
the pastor, or whoever takes his place, shall enter in
the marriage register the names of the parties and wit-
nesses, the place and date of the marriage, as well as other
data prescribed by the rituals or diocesan statutes; and
this he must do even though another priest delegated by
himself or the Ordinary assisted at the marriage.
The person who is obliged to record marriages is the
pastor, because rights and duties are correlative; since
the pastor is entitled to assist at, he is also obliged to
record, marriages.
oogle
Original from
UNIVERSITY OF WISCONSIN
312 MARRIAGE LAW
If the pastor has a substitute, either temporary or
permanent (assistant), the latter is likewise obliged to
see to it that marriages are properly recorded. If the
substitute has assisted at a marriage and records the
same himself, he has to sign his own name.
If a priest was delegated either by the pastor or by the
Ordinary, or subdelegated, if wc may say so, by the as-
sistant, it is not the delegate who must record the mar-
riage, but the pastor or his substitute. However, the
priest who has actually assisted must be named in the
record. It may be added that the pastor is to be held
responsible for the proper recording of marriages, though
in single instances he may leave this duty to an assistant.
The time within which the marriage must be recorded is
quampritnum,1* as soon as possible after the ceremony
has taken place, in order to avoid the evil consequences
of forget fulness. We do not wish to set a definite time
limit, as much depends upon habit and a " good memory,"
but the obligation is called a serious one (gravis) by
Cardinal Gennari.20
The matter to be recorded is: the names of the couple
and of the witnesses, the place and date of the marriage,
mention of the dispensation if one was used, and the fact
of delegation if the assisting priest was delegated by an-
other.
It may be added that the Code mentions a liber tnatri-
moniorum, thereby discouraging the custom of employ-
ing loose leaves. The form to be used in recording
marriages is given in the Rituale Romanum*1
2. As noted in can. 470, § 2, the pastor shall enter every
marriage contracted in his parish also in the baptismal
i» The " Ne temere," IX, I I, 20 Breve Commento, ed. 6. p. 43.
bad ttalim, immediately, which 21 Tit. X, c 5 (ed. Puatet, 191J,
commentators interpreted aa ono p. 330 £.).
day, or at most three days.
loogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1 103 313
record. If the parties, or one of them, were baptized
elsewhere, the pastor in whose parish the wedding was
-celebrated shall either himself or through the episcopal
chancery inform the pastor of the parish where the party
or parties were baptized of the fact of the marriage, that
the latter may register it in his baptismal record. " Red
tape," some will say ; but this contempt is not shared by a
defensor vinculi or any one who has ever had to do with
a matrimonial court. Rome will hardly recede from this
prescription, though petitions asking for a modification are
not wanting." The Congregation that refused such pe-
titions insisted that the record to be sent to the pastor
of the parish of baptism should comprise the names of
the contracting parties, the full M names of their parents,
the age of bride and groom, the place and date of the mar-
riage, and the full names of the witnesses, to be followed
by the signature of the pastor and the parochial seal."
This document, thus signed and sealed by the pastor, may
be seat to the episcopal chancery of the diocese in which
the marriage took place. If it is sent thither, the pastor
is free from further obligation or responsibility. The
decree just mentioned enjoins Ordinaries to see to it
that these regulations are conscientiously carried out, even
if they should be compelled to make use of canonical pen-
alties.
3. Whenever a marriage is contracted according to can.
1098, the priest who was present, or, if no priest was
present, the lay witnesses, are bound conjointly with
the contracting parties to take care that the marriage
be recorded as soon as possible in the parish register.
SIS. C. Sacr., March 13, 1910, properly signifies the surname or
ad IX. an adopted name.
■•"Full" means the baptismal or " S. C. Sacr., March 6. 19 11 (-4.
first name, v. g ., John, and the fam- Ap. S„ III, 102 f.).
ily name, v. *-., Murphy; agnomtn
>Ie
f ■ j ^ Original fro rn
UNIVERSITY OF WISCONSIN
314 MARRIAGE LAW '
The canon quoted (1098) speaks of the extraordinary
case where there is danger of death and the pastor cannot
perform the marriage. If a priest was present, he is
bound equally with the contracting parties to see to it that
the marriage is recorded. If no priest was present, the
obligation is shared equally by the lay witnesses and the
contracting parties; that is to say, if the parties them-
selves have the marriage recorded, the witnesses are
free ; but until the record is actually made, none of them
is exempt from the obligation.
The notice should be sent to the pastor who was entitled
to assist at the marriage, but it may also be sent to the
diocesan chancellor, who shall forward it to the pastor.
i /""* ^,m,|„ Originalfrom
gle
UNIVERSITY OF WI5CGNSI
■
CHAPTER VII
marriage op conscience
Can. i 104
Nonniai ex gravissima ct urgentissima causa et ab
ipso loci Ordinario, excluso Vicario Generali sine spe-
ciali mandate*, permitti potest ut matrimonium con-
scientiae ineatur, idest matrimonium celebretur omis-
sis denuntiationibus et secreto, ad normam canonum
qui sequuntur.
Can. 1 105
Permissio celebrationis matrimonii conscientiae se-
cumfcrt promissionem et gravem obligationem secreti
servandi ex parte sacerdotis assistentis, testium, Ordi-
narii eiusque successorum, et etiam alterius coniugis,
altcro non consentiente divulgationi
Can. 1 106
Huius promissiohis obligatio ex parte Ordinarii non
extenditur ad casum quo vel aliquod scandalum aut
gravis erga matrimonii sanctitatem iniuria ex secreti
observantia immineat, vel parentes non curent filios ex
tali matrimonio susceptos baptizari aut eos baptizandos
curent falsis expressis nominibus, quin interim Ordi-
nario intra triginta dies notitiam prolis susceptae et
baptizatae cum sincera indicatione parentum prae-
bcant, vel christianam libcrorurn educationem negli-
gant.
315
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
316 MARRIAGE LAW
Can. i 107
Matrimonium conscientiae non est adnotandum in
consueto matrimoniorum ac baptizatorum libro, sed in
peculiari libro servando in secreto Curiae archive dc
quo in can. 379.
It is evident from these canons that a " marriage of con-
science " is not the same as a clandestine marriage, al-
though it may be called, as the Summa Godfredi says,1
a sort of clandestine contract because it is contracted with-
out any solemnities. In France, clandestine marriages
were those which, though according to the Tridentine
form, were contracted without the consent of the parents.
To these refers the Constitution of Benedict XIV, " Satis
vobis," Nov. 17, 1741, which is the chief source of our
Code in this matter.
A " marriage of conscience " is one contracted without
the publication of the banns and in secret, but not with-
out the formalities prescribed by the Church. The fol-
lowing canons plainly show that a priest and witnesses
are supposed to be present. The Code says that no one
but the Ordinary of the diocese, or his vicar-general if he
has received a special commission ad hoc from the bishop,
may permit such a marriage, for most weighty and ur-
gent reasons only. Such reasons may be the following:
if two live together unsuspectedly as married though they
were never married;2 if the civil law imposes conditions
injurious to the freedom of marriage, if the civil power
interferes with the liberty, e.g., of soldiers, or if dis-
grace and discord would be likely to follow from iniqui-
tous laws impeding marriage.8 There may be, as Benedict
— _• n j *_. .»
lCf. Eemein, /. r., p. i8a ■ Instruelio S. C. P. F., 1758
t" Satis vobis," I 6: " 1 a figura {Coll., n. 571). Thia vu the caae-
matrimonii dwgenUs," really, la In Curasao, where the Dutch Gov*
concubinage. ernor imposed a penalty of 5°-
>Ie
£ " ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 1104-1107 317
XIV says, other reasons, but whatever they are, they must
te very grave and serious in order to outweigh the great
«vils resulting from secret marriages. These evils are:
easy divorce, danger of concubinage and polygamy, spirit-
ual and temporal ruin of the offspring.4
Can. 1105 describes the pledge of secrecy thus : the per-
mission for such a marriage implies a promise and the
strict obligation of secrecy on the part of the assisting
priest, of the witnesses, of the Ordinary and his suc-
cessors, as well as on the part of the one contracting
party, as long as the other will not consent to the divul-
gation of the marriage. It would be safest to put all
these parties, with the exception of the Ordinary, under
oath. As to the contracting parties themselves, it is evi-
dent that both must consent, because marriage is a bi-
lateral contract.
Can. 1 106 relieves the Ordinary of the obligation of
secrecy in two cases: if secrecy would cause scandal or
grave injury to the sanctity of marriage, or if the spiritual
ruin of the children were threatened. The first condition
would be present if the community had become aware of
the fact that no public marriage had taken place between
the parties. The sanctity of marriage would be imperilled
if infidelity to the marriage vows or divorce would en-
sue. The children's welfare would suffer if the parents
would not have them baptized, or if they had them bap-
tized under fictitious names, because in the latter case
the children's legitimacy and their right to inherit the
property of their parents would be jeopardized. There-
fore the parents are obliged, and should promise in writ-
ing, to send to the Ordinary, within thirty days, notice
florins for marrying before ■ p**- *"Sa$ii vobis," 5 - (■
tor. Cfr. Leo XIII, "// rftwa-
memo," Feb. 8, 1893.
§le
Original from
UNIVERSITY OF WISCONSIN
318 MARRIAGE LAW
of the birth of a child and of its baptism. The parents
may use fictitious names, says Benedict XIV, if only the
Ordinary is informed that the child is verily theirs, that
it is legitimate, and has been baptized.5 Finally the
Ordinary is not obliged to secrecy if the parents neglect
the Christian education of their children.
Can. 1 107 enjoins distinct and secret recording. A
marriage of conscience should never be entered in the
regular marriage records nor should note be made thereof
in the common baptismal record, but in a special book
which must be kept in the secret archives of the dioce-
san court, mentioned in can. 379. It should be a
sealed book, to be opened only when another such mar-
riage is to be recorded." This suffices to show the seri-
ousness with which the legislator wishes to see matters
of this kind treated. For the rest, where civil marriage
is prescribed, " marriages of conscience " will be rare.
f'SaiU vote," | 11. a Ibid, | zo.
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CHAPTER VIII
time and place of marriage ceremonies
Can. 1108
THE TIME
§ i. Matrimonium quolibet anni tempore contrahi
potest.
§ 2. Sollemnis tantum nuptiarum benedictio vetatur
a prima dominica Adventus usque ad diem Nativitatis
Domini inclusive, et a feria IV Cinerum usque ad
dominicam Paschatis inclusive.
§ 3. Ordinarii tamen locorum possunt, salvia legibus
liturgicis, etiam praedictis temporibus earn permittere
ex iusta causa, monitis sponsis ut a nimia pompa ab-
stineant.
1. Marriages may be contracted at any time of the year.
This, says Clement III, was the custom of the Roman
Church. However, taking marriage as a solemn nuptial
contract, says the same Pontiff, it is customary that from
Septuagesima Sunday to the Octave of Pentecost such a
solemnity be not performed.1 Add to this period the
time of Advent, and the former forbidden times are de-
scribed. But, as the same Pope says, the mere matri-
monial contract (consensu interveniente legitime de prae-
senti) may be entered into at any time.
2. Section two says that the solemn nuptial blessing
1C. 4. X, n, p, dt ftrns; cfr. Bern. Pap., /. c, p. 3C3I Tancred,
I. c, p. 69.
319
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
320 MARRIAGE LAW
may not be imparted from the first Sunday of Advent
to Christmas, inclusive, and from Ash Wednesday to
Easter Sunday, inclusive.*
3. However, the bishops may, for good reasons, permit
solemn weddings even during the forbidden seasons, pro-
vided the liturgical rules be observed and the parties
admonished to refrain from too great pomp. Whether
the reasons are sufficient the bishop must judge.8 A
sufficient reason would be if the pastor visits a mission
only at rare intervals or the couple lives at a great dis-
tance from church;* also the sudden departure of a
soldier for the barracks or battlefield. The Code is very
moderate and benign in this matter, which is evident
also from the fact that forbidden times no longer figure
among the prohibitive impediments. But if the Church
is condescending, she expects the faithful to make proper
use of her kindness, and hence the parties should be
admonished to refrain from too much pomp, which would
not be in keeping with the spirit of the season. Thus
noisy banquets, balls or dances would hardly be permis-
sible. Formerly the traductio sponsae pomposa, the sol-
emn induction of the bride into the home of the bride-
groom, was also forbidden ; B but now-a-days such a
pompous ceremony with pipers and singers and a choir
of boys and girls is no longer customary, except in Slavic
countries.
• i
a
x Formerly from the first Sunday I S. C. P. F., June 31, 1796
of Advent to Epiphany (Jul. 6), {Coll., n. 631).
and from Ash Wednesday to Low 4 Ibid.
Sunday; cfr. Trid., Bess. 24, c. 10, a Cfr. cc a, 3, 5, C 33. q. 4;
dt rtf. mat. the consummation of marriage was
also forbidden; cfr. Tancred, p. 69.
--.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1109 321
T^E PLACE
Can. 1 109
§ z. Matrimonium inter Catholicos celebretur in ec-
clesia paroeciali ; in alia autem ecclcsia vel oratorio sive
publico sivc scmi-publico, nonnisi de licentia Ordinarii
loci vel parochi celebrari potcrit.
§ 3. Matrimonium in aedibus privatis celebrari Or-
dinarii locorum in extraordinario tantum aliquo casu
et accedente semper iusta ac rationabili causa permit-
tee possunt; sed in ecclesiis vel oratoriis sive Semi-
narii sivc rcligiosarum, Ordinarii id ne pcrmittant, nisi
urgente necessitate, ac opportunis adhibitis cautelis.
§ 3. Matrimonia vero inter partem catholicam et par-
tem acatholicam extra ecclesiam celebrentur; quod si
Ordinarius prudenter iudicet id servari non posse quin
graviora oriantur mala, prudenti eius arbitrio commit-
titur hac super re dispensare, firmo lamcn praescripto
can. 1 102, § a.
1. All marriages between Catholics should be celebrated
in the Parish church. If another church or oratory,
either public or semi-public, is preferred, the permission
of the Ordinary or pastor should be obtained. Although
the bishops might insert the first clause of this text in their
diocesan or provincial statutes, it would be wiser to follow
the example of the second Provincial Council of St. Louis
(1868), which enjoins pastors to exhort the faithful to
get married in church.* For the common law grants the
faithful the right of petitioning the pastor to marry out-
side the parish church. Therefore the whole canon
would have to be inserted in the statutes. But the cele-
eWeroz, /. c, IV, VoL I, p. 276, modify hit view; Coll. Lac., Ill,
n. 183. ia very rigorous on tHU 310, " II-
point, but probably he would now
gle
Original from
UNIVERSITY OF WISCONSIN
322 MARRIAGE LAW
bration of marriage outside the parish church is permit-
ted only in churches and public or semi-public oratories
situated within the limits of the parish in which the pastor
can licitly and validly assist. Of course, unless the pas-
tor would be subject to the rector of the church or ora-
tory who would possess full parochial power, the mar-
riage would have to be performed by the competent
pastor or his delegate. Note that either the Ordinary or
the pastor may grant permission.
2. § 2 limits the power of granting permission to the
Ordinary of the diocese, if in some extraordinary case
there be a just and plausible reason for allowing a mar-
riage to be celebrated in a private house. Such a reason
would be illness or any " praiseworthy reason," for in-
stance, if a benefactor of the diocese or parish has a
private chapel in his home, the bishop or his vicar-
general, but not the pastor, may grant permission. In
such cases the nuptial Mass may be said in a private
chapel according to the rubrics.7
In churches or oratories of seminaries or of women re-
ligious the Ordinary should not grant permission for mar-
riages to be celebrated, except in cases of urgent necessity,
and then only with proper precautions. What these
precautions are may be surmised. The religious should
not be disturbed in their discipline, and the seminarians
should suffer no disturbance, and hence neither religious
women nor seminarians should be allowed indiscrimin-
c
ately to witness the marriage ceremony.
3. Marriages between Catholics and non-Catholics are
to be performed outside the church. However, should
the Ordinary in his discretion be convinced that evil might
follow from the observance of this law, he may dispense
<
T S. Rit G, Aug. 11, 187a (/)#• is no chapel, an altar should b«
creti Auth., n. 3265): where there erected if Mass is to be said.
sd by GoOgle
, 1 , Original fro m
UNIVERSITY OF WISCONSIN
CANON 1 109 323
from it, provided can. 1102, § 2, be strictly observed.
"Extra ecclesiatn" outside the church, means outside
the body of the Church, but does not exclude the
sacristy, in which, therefore, a mixed marriage may be
celebrated.8 As a general rule such marriages are per-
formed in the rectory, and this custom is not only safe
but very proper. For the rest we refer to can. 1102,
which describes the " greater evils."
The reasons why the Church treats mixed marriages so
severely are stated in an Instruction of the Secretariate
of State, 1858, which says that Catholics should never for-
get that the Church abhors such marriages and never
ceases to deter the faithful from them because they are
injurious to the salvation of the contracting parties them-
selves as well as of their offspring.
■ S. O., Jan. 17. 1877, quoted by admits a chapel in the church,
De Smci (/, c, p. 346). Thia do without the candle* lighted or any
ciaion, besides the aacrUty, alao special adornment*.
I Original from
UNIVERSITY OF WISCONSIN
■
pi
CHAPTER IX
THE EFFECTS OF MARRIAGE
Can. i no
Ex valido matrimonio enascitur inter coniuges vin-
culum natura sua perpetuum et exclusi vum ; matrimo-
nium praetcrea christianum coniugibus non ponentibus
obicem gratiam conf er t.
Valid marriage unites the contracting parties by a bond
which is of its very nature perpetual and exclusive;
Christian matrimony moreover imparts sacramental grace
to husband and wife if they place no obstacle in its way.
After what has been said under can. 1002, no further
explanation is needed. The marital contract, or matri-
monium in fieri, is the consent duly given according to
the form prescribed by the Church. This contract pro-
duces certain natural effects, viz.: indissolubility and
unity. These two innate qualities, if we may so call
them, are attached to every valid marriage, not only to a
union between Christians,1 though they receive additional
dignity and firmness from the fact that Christian matri-
mony has been raised to the dignity of a sacrament.
Therefore also Christian marriage has a special grace
attached to it, which attends every Christian marriage,
provided the contracting parties are in the state of sanc-
tifying grace. If they are not in the state of grace at
the moment they give the marital consent, the sacra-
1 Leo XIII, "Arcanum," Feb. 10. 1880
1/1
324
G Original from
OOglt UNIVERSITY OFWISCONSIN
CANON mi 325
mental grace is conferred as soon as the obstacle is re-
moved, because the bond is lasting (vinculum perduratis) .
It is, therefore, advisable and greatly to be recommended
that the parties make a good confession before marriage,
although there is neither a divine nor an ecclesiastical
law that enforces this pious practice.3
mutual rights and duties
Can. iiii
Utrique coniugi ab ipso matrimonio initio acquum ius
et ofneium est quod attinet ad actus proprios coniugalis
vitae.
■
Husband and wife, from the moment when the mar-
riage is contracted, have equal rights and duties concern-
ing the acts pertaining to the conjugal life.
This follows from the primary end or purpose of mar-
riage, which is the propagation of the human race and
the education of offspring. To this end, as stated under
can. 1013, the two other purposes of matrimony, mutual
aid and the allaying of concupiscence, are subordinate.
This primary end, however, cannot be obtained without
conjugal intercourse (debitum con'utgale). Hence to the
right of demanding that debitum there must necessar-
ily correspond the obligation of rendering it. And since
marriage is a bilateral contract, right and obligation are
equal in both parties.8 It may, of course, happen that
one party is deprived of the right of demanding the
debitum; in that case the other is not obliged to render it.
Two cases are mentioned which may suspend or take
away the right of demanding the debitum: vow and adul-
tery.
*Cfr. De Smet, /. e„ pp. 137 I. q. at c 3, 4. C 3a, q. a (thwc
• Cfr. I Cor. 7, 3; c. 24, C. J17, texta rather savor of rigorism).
>Ic
v ,1,., Original from
UNIVERSITY OF WISCONSIN
326 MARRIAGE LAW
The vow here understood is one which would render
the marriage illicit. Hence two vows only of those men-
tioned in can. 1058 refer to the debitum, vis.: the vow
of virginity and that of perfect chastity.* Concerning
the vow of virginity it must be said that the party obliged
by it is not allowed to demand the debitum, but is bound
to render it, unless he or she has lost that right. But
after the consummation of the marriage by the conjugal
act, the object of this vow is completely gone, and there-
fore the party formerly bound by the vow may after
consummation also demand the debitum.
As to the vow of perfect chastity, the party bound by
it is not allowed to demand the debitum, but is obliged
to render it as long as the other party has not forfeited
that right. Therefore this vow, unless dispensed from,
lasts throughout marriage, but the right to the copula
is not radically taken away by it, nor on the other hand
is the right of the party not bound by the vow affected, so
that the party bound by the vow may licitly render the
debitum.
It may happen that one wishes to make a vow of
chastity after marriage has been contracted and consum-
mated,— perhaps for a number of years. Such a vow
may only be made in two cases: (a) if the other party
consents or (b) has forever lost the right of demandingthe
debitum. Concerning (a) note that no vow made by
fraud, compulsion or threat, or in a state of melancholic
depression, can take away the right to conjugal inter-
course.5 Mutual consent alone can render such a vow
lawful and valid, (b) The right of demanding the debt-
4 The vow of celibacy does not cewes and hai no influence on the
pertain to the subject, because, conjugal rights.
after one ia married, it practically a cfr. cc I, 3, 8, 17, X, III, 3a.
ogle
£ " ^ ^ -,L» Original from
UNIVERSITY OF WISCONSIN
CANON mi 327
turn is forfeited by adultery* as commonly understood,
not by " spiritual adultery," such as heresy or apostasy,
which have been stretched by some authors 7 as incurring
this penalty. Note that adultery, whether incestuous or
simple, entails the loss of the marital right only after ju-
dicial sentence of separation has been rendered/ This is
very reasonable, because otherwise one party might suffer
from hallucinations on the part of the other. As the ec-
clesiastical judge renders the sentence, so he is also entitled
to restore the right to the debitum. From the vow of per-
fect and perpetual chastity, however, the Apostolic See
alone can dispense." If the vow was public, the S. C.
of the Sacraments is the competent authority; if it was
secret, the S. Poenitentiaria. Since the faculties granted
by the latter to our bishops are not abolished, they may
be made use of until further decisions.10 The vow of
virginity is not reserved.
If any doubt exists concerning the validity of a mar-
riage, the party who is certain of the existence of an
invalidating impediment is not allowed to ask the debitum,
but must render it to the party who is not aware of the
obstacle. If, however, the doubt has little probability
and rather amounts to a scruple, the first-mentioned
party may not only render, but also demand, the debi-
tum."
A juridical question may arise from the texts of the
Decretals12 which command a party to render the debi-
tum to the other party when afflicted by leprosy or some
A All the texts of the Decree and » Can. IJ09.
Decretala (c 9, X, IV, 1) refer to 1° S. C. Cone, April 25, 1918.
the fornicationis causa. ll Cfr. c. 2, X, IV, 31; c. 44,
tCfr. De Smet, I. c, p. 166, X, Vf 39.
note 5. ia Cfr. cc. 1, 2, X, IV, 8,
BC. a, X, II, 16; what we atate quoted by Card. Gasparri.
above 11 based upon a careful colla-
tion of all the text*.
jle
Original from
UNIVERSITY OF WISCONSIN
328 MARRIAGE LAW
other serious or contagious disease. Is this law binding
on the party not afflicted with such disease? The Decre-
tals would seem to imply that it is, but modern theologians
and canonists " take the negative view. It must be added,
however, that, though this latter opinion may safely be
followed in the court of conscience, the strict right cannot
be denied, and the texts quoted prove how rigorously
mutual right and duty must be taken. But the case of
actual drunkenness must be excepted, because such a state
is neither, properly speaking, human, nor fit for a human
act like the debitum, and, besides, may prove injurious
to offspring.
With regard to the mode of performing the debitum we
only add that it must correspond with the primary end of
marriage. Husband and wife are, per se, allowed the
copula only for the purpose of bringing forth children.
Yet this purpose need not be exclusively and positively-
held in view. It is sufficient that it be not positively ex-
cluded. Hence married persons need not trouble them-
selves with scruples as to the right intention, as long as
they do not employ unlawful means to prevent conception
and perform the marital act in accordance with the laws
of nature. The conjugal relation finally requires that the
spouses live together in a common home, unless there are
reasons excusing them from this obligation ; " on which
see chapter X.
18 Dc Smet, I. c, p. 171. long and unjustified absence of one
14 Cfr. c. 8, X, II, 13; c 9, X, party from home is a violation of
c
-
IV, 1: cc. 1, 2, X, IV, 8 — from the rights of the other.
which we must conclude that a
►ogle
Original from
UNIVERSITY OF WISCONSIN
CANON ii 12 329
rights of the wife
Can. 1112
Nisi iure speciali aliud cautum sit, uxor, circa cano-
nicos effectus, particeps efficitur status mariti.
Unless otherwise provided by special laws, the wife
partakes of the state of her husband as far as canonical
effects are concerned.
Since the wife becomes not the slave or handmaid of
her husband, but his consort, companion, and helpmate,
it is but natural that she should share his canonical status.
This is practically expressed by the domicile, which she
has in common with her husband, as long as no separation
has taken place.10 Besides, she may follow the rite or
liturgical worship of her husband ,ft and choose her burial
place ; if she does not select a special place (vault, family-
grave), she is to be buried in the cemetery of her hus-
band ; in case she has had several husbands, the last one's
burial place is also hers.17 Concerning titles of rank, no-
bility or honor, the Church leaves it to civil law to deter-
mine the wife's status, though she rather favors equal-
ity.18 Of special regulations of the Church as to differ-
ent rights we know nothing.
But the Church does maintain the perfectly natural
theory that the wife is subject to her husband 1B in lawful
matters, and even grants him the power of paternal cor-
rection, to be exercised, however, with moderation, which
excludes violence.20 The old English law permitted a
husband to scourge or whip his errant wife.21 The hus-
15 Can. 93; c. 3. C 13. q. a; c 4. » I Cor. IX, 3: Eph. St *a; Col.
C. 34, q. 1 et a. 3, 18; c 13-16, C. 33, q. 5.
16 Can, 08, I 4- wCt 6, 10, C. 33. 4- « (which
17 C. 3, I 1, 6*, III, ia. permits a fast to be dictated).
It C. ia, C. 3a, q. a} c. r, X, '- 1 Blackitone -Cooley, Comment.,
IV, 1. If 444,
jle
Original from
UNIVERSITY OF WISCONSIN
—
-■
330 MARRIAGE LAW
band may also nullify private vows of his wife which
interfere with his own lawful rights, as St. Augustine
says.23 Of course this must be understood of private
vows which are not reserved, as vows of abstinence, pil-
grimages or devotions which would interfere with house-
hold or marital duties."
The husband has the duty of providing his wife with
the necessaries of life, which the civil law further de-
tails.14 From this it may be seen how the Church stands
with regard to the '* emancipation " of women.
DUTIES OF PARENTS TOWARDS THEIR CHILDREN
D
u
Can. 1 1 13
Parentes gravissima obligatione tenentur prolis edu-
cationem turn religiosam et moralem, turn physicam
et civilcm pro viribus curandi, et etiam temporali eo-
rurn bono providendi.
Parents are under the gravest kind of obligation to
provide to the best of their ability for the religious and
moral as well as the physical and civil education of
their children, and for their temporal well-being.
This law, natural as it is, is based upon the fact
that not only the procreation, but also the education of
children belongs to the primary end of marriage. That
the religious part is named first should not cause surprise
in a Code of ecclesiastical laws. First comes Baptism
and then instruction in Christian doctrine. The moral
education must tend towards the formation of a firm and
upright character by word and example. The physical
education begins in the mother's womb and must be con-
<
M C 16, C. 3J» Q- 5- 2* Black»tooe-Cooley, /. c, I,
II Gratiin, ad c ao, C. 33, q. 5. 44a.
oogle
% .,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1114-1115 331
tinucd throughout the stages of childhood and youth.1*
The civil training consists in teaching the children civic
and social virtues, especially obedience to authority, jus-
tice, honesty, and patriotism.29 Political knowledge may
be reserved for later years and should be directed chiefly
to teaching youth to abhor crookedness and graft, which
corrode our body politic. We need not here recall the
serious instruction of the Holy Office of Nov. 24, 1875,
to the bishops of United States in the matter of public
schools, of which the title on schools will offer a better
opportunity to speak.
legitimacy of children
Can. i i 14
Legitimi sunt filii concept! aut nati ex matrimonio
valido vel putativo, nisi parentibus ob solemnem pro-
fessionern religiosam vel susceptum ordinem sacrum
prohibitus tempore conceptionis fuerit usus matrimonii
antea contracti.
Can. 1115
§ 1. Pater is est qucm iustae nuptiae demonstrant,
nisi evidentibus argumentis contrarium probetur.
§ 2. Legitimi praesumuntur filii qui nati sunt saltern
post sex menses a die celebrati matrimonii, vel intra
decern menses a die dissolutac vitae coniugalis.
The four canons 1114-1117 are intimately connected,
the first two describing the signs of legitimacy by wedlock
15 Sound and moderate physical -•'■ Cfr. Leo XIII, "Arcanum,"
culture and a little more Spartan- 18S0; " Humanum gtnus," 1884;
like education would inure our " Sapientiat chrutwuu"; " R*mm
children to hardihipi and toil, and novarum/' 1801; "Graves dm com*
the cultivation of the social life in mi.ni, 1901.
the forming district* might prevent
the flight to the citiea.
Q
§le
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
332 MARRIAGE LAW
and marriage, the other two concerning legitimation.
Taking marriage as the lawful basis and principle, can.
a
111$ states that those children are legitimate who are
conceived or born in valid or putative wedlock." This
law favors the offspring, for it supposes that a child may
be conceived out of lawful wedlock, and yet be legitimate
if his parents were married at the time of his birth. But
legitimacy always requires a marriage, whether certainly
or putatively valid. A marriage is certainly valid if con-
tracted without an invalidating impediment and according
to the form prescribed by the Church. A putatively
valid marriage is one contracted with due observance of
the prescribed form, but with an invalidating impediment,
the existence of which is unknown to one of the parties.
This case, of course, occurred more frequently, the more
impediments were set up in course of time. Hence it
was found necessary, since the time of Magister Ro-
landus," to regard the offspring of such invalid mar-
riages as legitimate. But good faith is strictly required,"
and is assumed until sentence against the validity is
given by competent authority. Hence children born out
of such wedlock would be held legitimate even if the
ecclesiastical court would afterwards annul the mar-
riage.20
This holds true concerning any ecclesiastical impedi-
ment except clandestinity.*0 But there are two further
exceptions made in our canon : (a) if one with solemn re-
ligious vows, before taking those vows,81 contracts a valid
marriage and proceeds to consummate the same, the
'■-.
27 Summa MagUtri Rolandi, ed. 80 C. 3, X, IV, 3; c. 14. X, IV,
Thancr, p. 231 f. 17.
28 Jgnorantia affectata would not 81 For, if he would have taken
be an excuse; e. 10, X, IV, 17. solemn tows before marriage, he
20 Cc. a, 8, X, IV, 17. could not validly have contracted
marriage.
od by GoOgle
I , Original from
UNIVERSITY OF WISCONSIN
CANON 1 1 15 333
fruit of such consummation being a child, this child would
be illegitimate.*2 (b) If one in higher orders who had
been married and with the consent of his wife (now by
apostolic dispensation) received holy orders would con-
summate the marriage thus contracted, the offspring
would be illegitimate.38 These two exceptions presup-
pose an illegitimate use of a validly contracted marriage.
A fortiori the same effect would be produced in case a re-
ligious with solemn vows or a cleric in higher orders had
offspring with a concubine.
A distinction must therefore be made between different
classes of illegitimate children.
1) Natural are those who are born of parents between
whom either at the time of the conception or birth of the
child a valid marriage could exist;
2) Spurious arc those born of parents between whom
at no time a valid marriage could exist. These latter are:
a) Adulterous, if born of parents one of whom was
at the time lawfully wedded to another;
b) Sacrilegious, if born of parents who are bound by
solemn religious vows or in sacred orders;
c) Incestuous, if born of an incestuous relation be-
tween persons legally related either by consanguinity or
affinity in the collateral line.
d) Nefarious, if born of parents related in the direct
line, e. g., of a father and his daughter.
Prohibitive impediments can never render a child ille-
gitimate.8*
After laying down this general rule, the legislator ex-
plains how the fact of legitimacy can be proved or at least
naturally presumed.
llCfr. c. is, X, I, %% (except thoie of the Jesuitt) and
33 Cfr. ec. t, a, 14, X, I, 17. those mentioned in can. 1058 do not
■ 14 Wernz, i. C.j IV, Vol. II, p. affect the legitimacy of children.
586, n. 680. Simple religious vows
logle
Original from
UNIVERSITY OF WISCONSIN
334 MARRIAGE LAW
Can. irij states in the first section: He whom mar-
riage points out as such must be considered the father,
unless the contrary is evident. This is nothing else but
a praesumptio iuris. The law naturally supposes that
children are the fruit of legal unions, not of adultery
or fornication ; and since the mother can be proved by the
birth, whereas the father's cooperation is hidden in ob-
scurity, the law must suppose the child to be a lawful
issue. Such the Roman law,88 from which our text is
taken, justly supposed. As long, therefore, as the con-
trary is not evidently proved, a child belongs to the
father whose consort has brought him forth. The proof
always lies with him who denies or doubts his legitimacy.
If the validity of a marriage is clearly established by the
ecclesiastical record, every child born of that marriage
is presumed to be legitimate, unless there is strict proof
to the contrary. There are only two ways to prove the
contrary: absence of the spouses from each other and
impotency. A third is hardly imaginable.88 The ab-
sence must be proved by trustworthy witnesses under
oath; impotency is a subject of medical examination.
§ 2 adds that " children born at least six months after
the date of a marriage, or within ten months after the
rupture of conjugal intercourse, are presumed to be legiti-
mate." Here again the Roman 8T law has been adopted,
with some modification as to the number of months. For
the Roman law assumed seven months, on the authority
of Hippocrates, who maintained that after that time a
complete birth was possible. Note the term presumed;
strict evidence would upset this presumption.
A dissolutio vitae coniugalis, or rupture of conjugal
SB Cfr. 1. $, Dig. II, 4, 11. i2, 19, m baptismal record was accepted as
•3. Dig, I, 5. proof against the child's legitimacy.
Sfl S. C. C. Aug. 9, 1884 <-*• •& 37 L. 12, Dig. I, 5; t 29, pr. Dig.
S., Vol. XVII, 378 ft); not eren 38, a.
ioi >gle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 1116-1117 335
life, may be brought about by a complete separation sanc-
tioned by the ecclesiastical judge or by a declaration
of nullity." We may add that the question of legitimacy
belongs to the ecclesiastical judge, whose sentence should
be respected by the civil court.88
legitimation of children
Can. ih6
Per subsequens parentum matrimonium sive verum
sive putativum, sive noviter contractual sive con-
validatum, ctiam non consummatum, legitima efficitur
proles, dummodo parentes habiles exstiterint ad
matrimonium inter se contrahendum tempore con-
ceptions, vel praegnationis, vel nativitatis.
Can. 1 1 17
Filii legitimati per subsequens matrimonium, ad ef-
fectus canonicos quod attinct, in omnibus aequiparan-
tur legit imis, nisi aliud expresse cautum fuerit.
Offspring is legitimated by the subsequent marriage of
the parents, be that marriage contracted validly or puta-
tively, either by a new contract or by revalidation, though
not consummated, provided the parents were capable of
contracting marriage between themselves either at the
time of conception, or of pregnancy, or of birth.
The underlying idea of legitimation, which the Roman
law 40 granted as a sort of adoption, and in virtue of the
parental power, is here transparent and, we may say,
" canonized." The English law is not so lenient, because
it considers all children born before matrimony as bas-
MC. 1. X, IV, 17. «0Cfr. I 13, Iiwt I, 10; U. 6,
MC. ia, X, IV, 17; Trid., kii/ so, Cod. V, 37.
34, c », da rtf. met.
( *n>nnlf> Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
336
MARRIAGE LAW
tards. But even English law does not bastardize a child
if it be born (though not begotten) in lawful wedlock,
provided the parties married within a few months there-
after.*1 Our Missouri law says: " If a man, having by
a woman a child or children, shall afterwards intermarry
with her, and shall recogni2e such child or children to
be his, they shall thereby be legitimate." *2 What our
text (can. 1116) provides is as follows:
1. A subsequent marriage, i. e., contracted after the
birth of the offspring, has the power to render legitimate
what would otherwise be considered illegitimate. Mar-
riage has that power, although only by virtue of positive
legislation.43 Consequently ecclesiastical law requires the
consent neither of the parents nor of the child. Nor
does it, like our Missouri law, demand a formal act of
recognition.
2. A marriage may be cither valid on both sides, or
putative because of an impediment on one side, unknown
to the other." Besides, a marriage may be newly con-
tracted or revalidated by the renewal of consent Now-
such a marriage need not follow immediately the birth of
the offspring. If a woman would marry a man other
than the one of whom she had conceived a child, and after
her husband's death would marry the father of her child,
the latter would be legitimate by virtue of the second
marriage.48 If a woman had a child from a man before
marriage, and then married that man, but never consum-
mated the marriage, the child would be legitimate.
3. One condition must, however, be added, viz., that
the parents were capable of contracting a marriage at any
« Blackstone-Cooley, Comment., " Reddilae Nobis," Sept. 17. 1746.
I. 454- I 39
42 RcYiaed Statute* of Missouri, 44 Rciftenstucl, IV, 17, n. 3s f.
1899, sect. 3917* ** Ibid., n. 40.
*• C 6, X, IV, 17 ; Bened. XIV,
gle
Original fro ni
UNIVERSITY OF WI5C0NSI
CANON ii 17 337
of the three stages mentioned: conception, pregnancy,
birth. Therefore, if an impediment existed at the time
a child was begotten, but was removed by dispensation
before he was bom, the child is legitimate.
4. The question arises whether natural and spurious
children are legitimated by a subsequent marriage of the
parents. Observe, first, that the offspring must belong
to that couple and not to a different man or woman.
To speak concretely : if Gemma had a child from James
and would marry John, this marriage would not legitimate
the child begotten from James, unless, of course, Gemma
would after the marriage with John marry James. The
question proper is about spurious children of all kinds,
whether they may be legitimated by subsequent marriage,
and more especially concerning an adulterine child.
This case is mentioned in the Decretals *• and elaborately
expounded by Benedict XIV in his letter to the archbishop
of San Domingo.47 Gemma was lawfully married to
James, but had intercourse with John during her mar-
riage, the fruit of which intercourse was Emma. Would
Emma be legitimated by a subsequent marriage of
Gemma and John? Answer: If James dies before
Emma is born and Gemma marries John sometime after
Emma's birth, Emma is legitimated by that marriage, be-
cause at the moment of her birth both Gemma and John
were capable of contracting marriage. Therefore, though
conceived in adultery, Emma was born in lawful wedlock
and hence cannot be called an adulterine offspring.48 It
is supposed, of course, that no impediment of crime in-
«C. 6, X, IV, 17. cepta, which in canonical language
47" Ridditat Nobis," Dec 5, means birth or baptism, as Rclf-
1744; I 2 IT. is 1 fine specimen of fenstuel (IV, 17, n. 40) justly re-
canonical faffii and lore. marks. Therefore we are unable
48 C. 6, X. IV, 17, is not contra- to grasp the argument of Wcrnr,
dictory, for it mentions prolts jw* /. c, IV, Vol. II, p. 595, n. 686.
ogle
Original from
UNIVERSITY OF WISCONSIN
338 MARRIAGE LAW
tcrfcred. The answer applies to all ecclesiastical im-
pediments. If the impediment was removed at the mo-
ment of birth, the child is legitimate. This seems to us
the logical explanation of our canon, and it is borne out
by the letter of Benedict XIV referred to.
Can. 1 1 17 mentions the canonical effects of legitima-
tion. Legitimated children partake of all the effects
granted by Canon Law, unless the latter makes special
exceptions. These canonical effects concern especially the
capacity of being ordained without a dispensation and
obtaining ecclesiastical benefices and appointments, also
certain prelatures of inferior rank. The cardinalate 4ft
and the episcopacy 50 are excepted.
An additional remark : The Code does not mention an-
other mode of legitimation, which was formerly in vogue
and is always referred to by canonists, viz., by papal
rescript. The Pope can legitimate not only natural, but
also spurious children, and the extent of a papal rescript
on this subject has to be interpreted according to the
general rules. Although the Code is silent about this
mode of legitimation, there is no doubt that the Pope may
issue such a rescript as far as canonical effects " are con-
cerned. Besides, can. 1043 *• permit a legitimation in
certain cases, which may be applied by the Ordinary or
the pastor or any priest. Otherwise the faculty is given
by the S. C. Sac. pro foro externa.
«»Sixta« V. "Ad Romanum." Bi C. 13. X. IV. 17. which, how-
Oct. M, 1588, I 3; can. 33a, I J, ever, rcfera to the Papal State*.
n. 1. and must therefore b* interpreted
so Can. 331, I i, n. 1. accordingly.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CHAPTER X
SEPARATION OF MARRIED COUPLES
ART. I
dissolution of the matrimonial bond
Can. 1118
ratified and consummated marriages indissoluble
Matrimonium validum ratum et consummatum nulla
humana potestate nullaque causa, praeterquam mortc,
dissolvi potest.
A valid Christian marriage, which has been consum-
mated, can not be dissolved by any human authority or
for any reason except by death.
To what has been said under can. 1013 there is little
to be added. The indissolubility of a consummated
Christian marriage {ratum et consummatum) was de-
fended since at least the tenth century. Before that time
we find some canons of particular synods, like those of
Vermery (1752) and Compiegne (1757) which might
be interpreted in the sense of a mitigated divorce.1 The
Penitential Books do not distinguish clearly between si-
multaneous and successive polygamy.1 It is probable that
the bishops could not strictly enforce the Christian ideal
of marriage among semi-barbarous tribes. The case
t Verm. Syn., cc. ;, 9; Com p., cc * Waascrichlcbcn, Die Euuord.,
6, 9, 16. pp. 148, 197.
339
oogle
Original from
UNIVERSITY OF WISCONSIN
340 MARRIAGE LAW
proposed by St. Boniface and solved by Gregory II, in
726, looks like an accommodation to the circumstances
of a newly converted country and is perhaps the first ex-
ample of a solution of an unconsummated marriage bv
papal intervention.3 A somewhat wavering attitude in
matters of indissolubility is still noticeable at the time of
Alexander III (1159-1181), who mentions diverse cus-
toms. However, it is evident that, though " some Roman
Pontiffs appeared to think differently," their decisions
never partook of the nature of an infallible decree or a
dogmatic definition.*
After the twelfth century, however, the dissentient
voices are hushed, and the indissolubility of a valid
Christian marriage which had been perfected in its typical
significance by the conjugal act, was strenuously de-
fended.8 Besides the cases brought before the Roman
Pontiffs by Lothair (855-869), Philip I (1060-1108),
Philip Augustus (1180-1223), Charles V (1364-1380) by
the King of Aragon under Clement IV, by Henry VIII of
England, and finally the famous case of Napoleon I under
Pius VII, should convince any unbiased student of the
firmness of the Apostolic See in this important matter.
The canon says : by no hnmaii power may such a mar-
riage be dissolved. This comprises the Apostolic See
also, as the Pope is the supreme lawgiver in matters
purely ecclesiastical. But the canon is intended as a
silent rebuke and reminder to the civil power, which
has nearly everywhere made laws favoring divorce.
»C. x8. C. 32, q. 7; Zchetbiuer, Laapeyre*. p. 298; Wernx, /. c, IV,
Das K.-R. bei Bonif 'alius, 1910, p. p. 525 (i ed.)
138. a Bened. XII, ami. 1341, prop.
4 Summo Magistri Rolandi, ed. 103 .-Irmrn. damn.; Trid., KH. >4,
Thaner, pp. 14, 187, aoo; c. 3, X, can. 7, rf# sacr. mat.; Leo XIII,
IV, 4; S*mma Btrnard. Pap., ed. "Arcanum," Feb. xo, 1880.
jle
( * ^ -. %\s* Original from
UNIVERSITY OF WISCONSIN
N
CANON 1 1 19 341
Can. 1 1 19
matrimonium ratum
Matrimonium non consummatum inter baptizatos
vel inter partem baptizatam et partem non baptizatam,
dissolvitur turn ipso hire per sollemnem professionem
religiosam, turn per dispensationem a Sede Apostolica
ex iusta causa concessam, utraque parte rogante vel
alterutra, etsi altera sit invita.
An unconsummated marriage between two baptized
persons, or between a baptized and a non-baptized per-
son, is dissolved by solemn religious profession and by
a dispensation granted by the Apostolic See for a just
cause, if requested by both parties, or by only one, even
though against the will of the other.
The historical development concerning religious pro-
fession and papal dispensation was uneven, the former
being acknowledged earlier than the latter. The school
of Paris opposed the school of Bologna with regard to
the firmness of the matrimonial tie.0 The latter main-
tained that a ratified but unconsummated marriage was
destitute of the sacramental character and therefore lia-
ble to dissolution. The school of Paris ascribed the sac-
ramental character and indissolubility to the matrimo-
nium ratum tantum. Alexander III, as Magister Ro-
landus, adhered to the Bologna theory, but as Roman
Pontiff paved the way for a golden mean by upholding
the sacramental and truly contractual character of a
ratified marriage, and at the same time maintaining the
possibility of a dissolution of such a marriage by reason of
a vow, affinity succeeding marriage, or complete mental
6 Cfr. Esmein, /. c, p. 95 ff.; Frciien, /. c, p. 190 ff.; De Smet, p. 227 f-
oogle
Original from
UNIVERSITY OF WISCONSIN
342
MARRIAGE LAW
estrangement/ The religious vow was formally acknowl-
edged by the former Master in the well-known Decretal
" Ex publico " (c. 7, X, III, 32) and was, though perhaps
reluctantly, sanctioned by Innocent XII, a.d. 1210.'
Not quite so rapid was the acknowledgment of the
papal power of dispensing from a ratified marriage. For
before the beginning of the fifteenth century there are no
papal documents to be found which refer to a dispensation
in the case of a merely ratified marriage. Yet it may
safely be maintained that some canonists (though not the
theologians), recognized papal authority in casu.9 This
was done at the reunion councils of Lyons (II) and Flor-
ence, and in a decree of the Tridentine Council.20 The
Greeks were more inclined to admit divorce because of
fornication, and prompt to accuse the Latin Church of
excessive rigor. After the Council of Trent papal dis-
pensations from such marriages are not rare, as the deci-
sions of the S. C. Concilii sufficiently prove.
The Code says: (1) that a marriage which is only rati-
fied, but not consummated, may be dissolved. Hence the
fact of non-consummation must be proved, which re-
quires a special procedure.11 Note that consummation
here means the conjugal act in the married state; a
fornicarious intercourse before marriage is not styled
consummation, but the copula must be repeated after
marriage.
(2) The marriage may be contracted either between
two baptized persons or between one baptized and the
other not baptized. There is no further species men-
tioned, as for instance, a legitimate marriage, i.e., one
contracted lawfully between two non-baptized persons.
7 Compil. I. cc 4* 5, X, IV, 4;
c X, III, 32; c. 2, X, IV, 13.
■ C. 14. X, III, 3a; Wernz, /. ft,
IV, Vol. II, p. 605 f.; n. 696.
►ogle
B De Smet, /- c, P- "0.
10 Seta. 24, can. 7, dt lae. mat.
11 Cfr. can. 1960-1993; Wenur,
g, c, IV, Vol. 2, p. 619.
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1 1 19 343
Is the following case included ? James and Gemma mar-
ried lawfully whilst both were not yet baptized, and con-
summated their marriage. Later, Gemma was baptized
(in the Catholic Church), and the marriage between her
and James was not consummated after her Baptism. We
are aware of the controversy which exists among authors •
on this point. The wording of our text excludes neither
opinion. Some say that the marriage in question was
consummated, and consummation affects the whole mar-
riage, as long as the bond lasts, because consummation,
whether before or after Baptism, signifies the union be-
tween Christ and his Church through the Incarnation,
and a union thus perfected is not weaker than a ratified
marriage between baptized persons. Besides there are
no instances in which the Roman Pontiff dispensed from
a consummated marriage of infidels who were afterwards
converted.12 Thus the champions of the negative opinion.
The defenders of the affirmative view employ exactly the
opposite arguments. They say that a ratified marriage
between Christians constitutes a stronger tie (fortius
vinculum) than a consummated marriage between in-
fidels. But when they are asked to produce documents
proving that the popes exercised their power in such
cases, they stretch the words of papal decisions. We
rather incline to deny the power of dissolving in such
cases. What, we may ask, is wanting to such a mar-
riage? Baptism alone is wanting in the order of ratifi-
cation. After Baptism you may as well call it ratum et
consummatum, since the lawful consummation cannot be
UCfr. Bened. XIV, Di Syn. Pirn VII, Feb. *a, 1801 tCollco
Diotc, XIII. a 1, 4 Lt Feije, De tanca S. Stdis. Paris. 1880. n. 96a.
Impediments et Dispentat. Mat., p. 433) would insinuate the fact of
1885, «L 3, p. 50a, n. 60a; Wernx, dispensation: "copula camalls prae-
IV, Vol. II, p. 628; De Smet, /. c, cexserat, std nunquam tubsecnta
p. aao. But the faculty {ranted by trat."
oogle
k ,1,., " riginal from
UNIVERSITY OF WISCONSIN
344
MARRIAGE LAW
N
■
undone by Baptism. Yet we must confess that the text
of can. 1 1 19 seems to favor the contrary opinion, be-
cause the wording "mow consummatum inter baptisatos"
seems to lay stress on consummation after Baptism, and
in that case even a marriage consummated before Baptism
could be dissolved, not only by the Pauline privilege, as
was heretofore generally assumed, but also by religious
profession and papal dispensation.
(3) Solemn religious profession, then, by law dis-
solves a marriage as described. The profession required
is solemn perpetual profession acknowledged as such by
the Church. It is pronounced only in religious orders.
No other kind of vow or profession has the effect here
in question.18 Hence the simple vows taken in the So-
ciety of Jesus have not the power of dissolving marriage.14
Of course, it is understood that the solemn profession
is valid and not dispensed from. As a consequence,
the moment one party pronounces the formula of pro-
fession, which is accepted by the lawful superior, the
other party is free and may remarry. This rule works,
we may say, automatically, so that no ecclesiastical court
need intervene. This is meant by the phrase ipso iure.
All that is needed is that the party remaining in the world
be apprized of the fact of the solemn religious profession
of the other."
But there is another meaning attached to the expres-
sion "ipso iure." It refers to the general or common
ecclesiastical law which introduced this mode of dissolu-
tion in favor of religious profession. As the solemnity
of the vows, so also this impediment set up by positive law
18 5. C. taper Statu Rcgul., Jan. formed of the other party's solemn
35, 186 1. profession would contract marriage
1* Wcrnz, IV, Vol. II, p. 6*7, with a third after this profession,
n. 698. the marriage would be valid, but
10 If ■ part/ not sufficiently in- illicit.
oogle
Original from
UNIVERSITY OF WISCONSI
CANON 1 1 19 345
exists by ecclesiastical institution. It would be useless
to search the Bible for a text to support the divine law
which some 1B have assumed. The fact that before Alex-
ander III no pontiff gave an authentic decision in this
matter should suffice to prove that the law is of ecclesias-
tical institution.
(4) The second mode of dissolving a non-consummated
marriage between baptized persons, or a mixed marriage,
is by papal dispensation. This power, vicarious and in-
strumental as it is called, cannot be validly and licitly ex-
ercised without a just reason. Therefore the Pope is
bound by iustae causae, otherwise the dispensation is
invalid. The reason is that the indissolubility of mar-
riage is founded on natural and divine law, to which the
Pope himself is subject,17 and therefore he may use his
power only as a steward of God, or as an instrument in
the hands of God.
The following reasons arc- iustae causae of more or less
frequent occurrence:
(a) Proof that one party did not have the intention of
binding himself or herself forever to the other; or that
deception and fraud were practiced ; or that fear and vio-
lence were used in order to force the reluctant party.
These reasons may be said to be derived from lack of
freedom and perfect consent, though there is no agree-
ment as to terminology.18
(b) Impotency of either party is frequently alleged in
cases brought before the Roman tribunals; whence may
follow aversion for the state of virginity, to which one
party might be forced by the impotency of the other."
10 Wetoz, I. c., p. 624, has given serve*: " »« hoc quatttiane sciij
much attention to the refutation of confuse foqauntur doctores."
the divine right theory. i« Richter, Trid., p. a8j, n. 141.
IT Sanchez, /. c, 1. II, ditp. 15, n. 143; A- Ap. S„ V, 553 B.
a. 6; cf. n. 1/ where he justly oh- 10 Richter, %b,, nn. 139, 147. »5<>;
jle
I , Original from
UNIVERSITY OF WISCONSIN
346 MARRIAGE LAW
(c) A desire to save the good name and reputation of
the other party, or to avoid family troubles and feudal
quarrels, or to keep up one's social status or rank.50
These are the reasons most frequently advanced in
petitions for dispensation "super ntatrimonio rato non
consummate." The fact of non-consummation must be
proved, otherwise all procedure is useless. Of this we
shall hear more under Procedure in Matrimonial Cases
(infra).
(5) A. petition for dissolution may be submitted by
both parties or by one party only, the other refusing to
acquiesce. In the latter case the proof of non-consumma-
tion will be more difficult, especially if the other party is
contumacious.
This may suffice for the present canon. We will only
add that whether the term " dispensation " is to be taken
in the strict or in a wider sense, is immaterial to the
canonist, though we may interpret it as a declaration to
the effect that in any particular case the marriage may be
dissolved, and is dissolved, for a just reason by the au-
thority set up by God."
■
THE PAULINE PRIVILEGE
After declaring the absolute indissolubility of a Chris-
tian marriage validly contracted and consummated, and
pointing out two ways of dissolving a merely rati-
fied marriage, the Code proceeds to lay down rules con-
cerning what is called the privilegium iidei. This is also
styled the Pauline privilege because it is contained in 1
Cor. VII, 12-15, and is therefore said to have been
to this may be added contagious and nobility the S. C. would not
disease: cfr. Sanchez. /. e„ II, dispense. Jaa. 33. 1734 (Richter,
disp. :6, n. 5 f. i. c, n. 147).
SO Richtrr. ib.. n. 145; but In one 11 Werni, L e., IV, Vol. II, p.
of mere disparity of condition 618.
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1 1 19 347
promulgated by the Apostle of the Gentiles, although in
fact it was granted by the Lord Himself in favor of
faith." It would seem to follow that this privilege,
though promulgated by private authority, (" for the rest
I speak, not the Lord ") is based upon divine law.
Traces of the use of the Pauline privilege are very rare
in ancient times. Certain apparent allusions to it in the
writings of Tertullian M and St. Augustine are doubtful.
The latter M speaks of forsaking an infidel wife, but is
silent about the solution of the marriage tie. Gratian M
refers to the matter in a rather confused way. The sub-
ject is treated more plainly by Bernardus Papiensis 2fl
and especially by Tancred," who distinguishes three rea-
sons for which contumely against the Creator would
dissolve a marriage : — cohabitation with contempt of the
Creator, danger -of being drawn into infidelity, and danger
of mortal sin. The Decretals of Gregory IX mention
the case in title 19, but in a cursory way, without emphasis.
A wider range was given to the Pauline Privilege after
the discovery of the New World. Paul III, with his con-
stitution " Altitudo" June I, 1537, opened a new series
of papal documents." Since his day innumerable deci-
sions have been given by the Holy Office and instructions
issued by the S. C. de Propaganda Fide. These decisions
and instructions shall be our main guide.
as Bened. XIV, De Syn. Diotc, to 5"nmma de Mat., ed. Laapeyrea.
VI, 4. 3; S. C. P. F., March 5. P- aoi.
1816 (Coll:, n. 704). 27 Summa d* Sfona. tt Mat., ed.
S3 Ad uxorem, c. a. Wunderlich, p. 44.
s* C. 4, C 28, q. 1. „-." Cfr. can. 1125, and appendix
28 C. 28. to the Codex Juris Cononici, where
the text of all three is inserted.
5 'rtrhnltf Original from
1 K H 'gie UNIVERSITY OF WISCONSIN
348 MARRIAGE LAW
NATURE OF THE PAULINE PRIVILEGE
:
Can. 1120
§ i. Legitimum inter non baptizatos matrimonium,
licet consummation, solvit- jr in favorem fidei ex privi-
legio Paulino.
§ a. Hoc privilegium non obtinet in matrimonio inter
partem baptizatam et partem non baptizatam inito cum
dispensatione ab impedimento disparitatis cultus.
A legitimate marriage between non-baptised persons,
even though consummated, is dissolved in favor of the
faith by the Pauline Privilege.
The Pauline privilege is expressed in / Cor. VII, 12-15:
"If any brother hath a wife that believeth not, and she
consent to dwell with him, let him not put her away.
And if any woman hath a husband that believeth not, and
he consent to dwell with her, let her not put away her
husband. . . , But if the unbeliever depart, let him de-
part. For a brother or sister is not under servitude in
such cases. But God hath called us in peace."
Note the expressions : " consent to dwell with," " de-
part," and " unbeliever," around which the privilege clus-
ters. The favor of faith is insinuated by the words : " not
under servitude and peace."
( 1 ) The faith in favor of which this privilege is as-
serted, is that of St. Paul and his brothers and sisters,
therefore, the Christian faith. It is evident that the leg-
islator means, first and above all, the Catholic faith (cfr.
can. 1 123). In matter of fact all the decisions29 of the
Roman congregations were prompted by Catholic mis-
» At least the many which we non-Catholics do not appeal to the
perused never mention * heretical rope.
baptism. The reason is evident:
jle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1 120
349
sionaries and prelates, and given for converts who had
embraced the Catholic faith.
(2) The marriage must have been contracted between
non-baptized persons, or, in the words of the Apostle,
between unbelievers. This is an important point, for if
there is a doubt whether one of the parties was bap-
tized, the privilege cannot be applied to him or her.
Here is a case in point. Methodist preachers had been
working in Oceania and baptized some of the inhabitants.
The baptisms were of doubtful validity. When one of
the women thus doubtfully baptized wished to embrace
the Catholic faith, her husband refused to dwell with her.
The question arose : May he be considered an unbe-
liever and the Pauline Privilege applied to her? The
answer was no.30 She could not simply be called an un-
believer. If both parties were unbelievers, the canonist
would not trouble himself about them. Therefore, one
must be converted, or rather baptized validly, because by
baptism one enters the ranks of believers. A catechu-
men, i.e., one who is taking instructions in the faith, is
not yet entided to that privilege, as has been decided ai
and is re-affirmed in the next canon.
(3) St. Paul uses the phrases: " to consent to dwell to-
gether" and, negatively, " to depart." If departure takes
place, it is an evident sign that the unbeliever is unwilling
to dwell under one roof with the believer. It may hap-
pen that the infidel party would consent to cohabit with
»oS. 0., Dec. 18, 1873 (Coll. P.
F., n. 1392, Vol. II, p. 59>:
" Utrum pars conversa propter
graiwimum dubium de baptijmo in
haereri reeepto aetjuiparari postit
parti at infidclitati eonversae, et
propter F'aulmii'ti frit'ilegitim ed
ahas nuptial transire. S, C. Re-
spondii : Pfegatire. . . . Utrum bap-
tismus dubius censendus sit validus
in ordine ad matrimonium ttiam in
eo sensu, quod invalidum sit matri-
monium inter haeretieum dubie bap-
tieatum, et infidelem propter im-
Pedimentum dtsparitatis eultus. S.
C. respondit: Affirmative."
81 S. C. P. F., Jul i«, 1801
{Coll., n. 665).
oogle
Original from
UNIVERSITY OF WISCONSIN
35o MARRIAGE LAW
the faithful spouse, but the latter would be subject to un-
pleasant and even sinful temptations from the part of the
unbeliever. Cohabitare sine contumelia Creatoris means
to live together without injury to faith and morals, or
in
without offense to the Creator. No matter whether the
u
unbeliever departs physically or morally from his con-
verted partner, the privilege may be applied to the latter.
The unbeliever departs physically, (a) if he unjustly
leaves his faithful consort who has given him no cause
for departure; (b) if he contracts a marriage with an-
other; (c) if he is detained by another consort (a secundo
mart to) or by a creditor for unpaid debts; (d) if he de-
parts out of hatred for the faith of his consort.32
Moral departure might be brought about by the follow-
ing reasons: (a) refusal of the unbeliever to live with
the believing party without blaspheming the name of
Christ," or in other words only under the condition that
the unbeliever could freely blaspheme the Christian name ;
(b) refusal to relinquish concubinage, which is an offense
to God;** (c) refusal to permit the Catholic education
of the offspring;" (d) attempts to seduce the Catholic
party to idolatry;80 (e) temptation on the part of the
husband (not father- or mother-in-law) to grievous sins
against conjugal chastity; " (f ) continual dissensions and
quarrels, for which the faithful party has given no cause,
or for which he or she has made satisfaction and amend-
ment ; but this state must be serious and endanger salva-
tion."
Q
|M
IIS. O., July 4. 1855; June ia. « S. 0.. Dec 14. 1848; Juljr 11,
850; Aug. s, 1759: P- F-. Jan. 30, 1866 (Coll. eit, no. 1036. "9S)-
1807 (Coll, P. F„ nn. 1114, 1044. »• S. O., Aug. 5, 1759 (Coll., n.
4*1. 690). 4*0-
US. O., July 4. 1855 (ColL eit.t 8T P. F.f March 5. *8i6 (Coll.
n. 1114)- tit., n- 704)-
Ulbid. 8BS. 0.t Aug. 5, 1759; April 26,
i$99 (Coll. tit., no. 4**1 1044) •
.'le
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1120 351
Crimes committed by the faithful party before Baptism
do not deprive him of the Pauline privilege ; neither does
he forfeit that right by crimes committed after Baptism,
if they are not suspected by, or known to, the infidel
party, because " when there is doubt, the verdict must be
in favor of the faith." »•
This, then, is the extent and nature of the Pauline priv-
ilege, granted in favor of the faith, which can be made
use of only if the unbeliever does not wish to dwell with
the faithful party, or at least not without offense to the
Creator.
But, says § 2, this privilege cannot be applied to a mar-
riage between a baptized and an unbaptized person con-
tracted with a dispensation from the impediment of dis-
parity of worship.40 Hence if James was a Catholic and
contracted marriage with Gemma, who was not baptized,
having obtained a dispensation from the impediment of
disparitas cultiis, Gemma could not claim the Pauline
privilege even though James should return to unbelief
and she were willing to become a Catholic. Neither is
the matrimonial tie solved when both consorts receive or
intend to receive Baptism.41 These are only preliminary
requisites for dissolving a marriage contracted by both
parties in unbelief; their marriage is not yet dissolved.
The privilege requires some sort of legal verification to
the effect that the required conditions are actually pres-
ent. This process is called interpellation.
ao S. O., April 19, 1899 (Coll, 1855: Dec 9. 1874 (Coll. on. 1070,
n. 2043). 1114, 1427, ad 18).
40 S. O., March 5, 1854; July 4, 41 S, <>., July 11, 1866 {Coll., n.
ia95).
"-
rGoogl
Original fro ni
UNIVERSITY OF WISCONSIN
352
MARRIAGE LAW
character and necessity of interpellation
Can. i 121
§ i. Antequam coniux con versus et baptizatus no-
vum matrimonium valide contrahat, debet, salvo prae-
scripto can. 1125, partem non baptizatam interpellare:
1. An velit et ipsa convert! ac baptismum suscipere;
2.0 An saltern velit secum cohabitare pacince sine
contumelia Creatoris.
§ 2. Hae interpellations fieri semper debent, nisi
Sedes Apostolica aliud declaraverit.
§ 1. Before the converted and baptized party may pro-
ceed to a new marriage, he must, with due regard to the
conditions mentioned in can. 1 1 25, inquire of the un-
baptized party:
I.0 Whether she, too, will be converted and receive
Baptism ;
2.0 Whether she would at least consent to peaceful
cohabitation without offense to the Creator.
§ 2. These interpellations must always be made unless
the Apostolic See has declared otherwise.
From § 1 it is evident that this interpellation must be
made after Baptism. This injunction has been insisted
upon time and again,42 and must be considered the rule.
However, in extraordinary cases, the Holy Office has
granted faculties to make the interpellation during the
time of the catcchitmenate. In these extraordinary cases
the whereabouts of the infidel party were entirely un-
known or he or she was so far away that interpellation
would have been uncertain and difficult.4"
Note that faculties are required, and compare what is
said under can. 1125.
«2 S. O., April, 1859 {Coll., a.
1 175).
oogle
«a S. O., June 3, 1874 (.Coll., n.
Original fro ni
UNIVERSITY OF WI5C0NSI
CANON 1121 353
The interpellation must be twofold: (a) whether the
infidel party would be willing to be converted and receive
Baptism; (b) whether peaceful cohabitation would be
consented to without offense to God. What the latter
phrase means has been explained above.
This double question must be put even if evidence is
at hand to show that the infidel party has no intention to
be converted.44 Neither is the double inquiry to be
omitted in case a divorce has taken place and another
marriage contracted according to civil law.45
The necessity of the twofold interpellation, as stated in
§ 2, has been emphatically inculcated by Benedict XIV "
and by the Holy Office. It obliges both parties, husband
as well as wife, with equal force.
It may have caused some surprise that the text says
" declaraverit/' where we should have expected " dispen-
saverii." But there is a solid reason for the term chosen.
For the necessity is by divine precept, or " according to
Apostolic sanction." The interpellation, therefore, is not
to be looked upon as a mere formality or judiciary form.
Benedict XIV's emphatic statement to this effect was
adopted by the Holy Office,47 which has declared that the
opinion that the interpellation may be omitted whenever
it cannot be made or would prove useless, cannot be called
safe in practice, and insists upon instructing neophytes
as to their obligation on this head.48 Here, then, is the
secret of the declaraverit: since the interpellation is part
and parcel of the divine law, and the Holy See does not
claim the power of dispensing from that law, the Code
44 P. F., March 5, 1816; Jan. 17, 47 S. O., June is, 1850; July 4.
1836 (Coll., an. 704, 845). 1855; Sept. 16, 18*4 (Coll, on.
45S. 0.. June 18, 1884; July 17, 1044. i"3. 784).
1850 (Coll., nn. ioao, 1045)- *» Btncd. XIV, Dt Syn. Dio€C,
<o " Afostclici mimutcrii" Sept. VI, 4: XIII, it; S. O., June 30.
16, 1747. 1838 (Coll., n. 116J).
jle
Original from
UNIVERSITY OF WISCONSIN
354
MARRIAGE LAW
has logically adopted the term declare, not dispense.
With this explanation in view, if we have used or shall
use the term dispense, let it be understood as the Apos-
tolic See wishes it to be understood.
Can. i 122
MODE OF INTERPELLATION'
■
§ z. Interpellations riant regulariter, forma saltern
summaria et extraiudiciali, de auctoritate Ordinarii
coniugis conversi, a quo Ordinario concedendae sunt
quoque coniugi infideli, si quidem eas petierit, induciae
ad deliberandum, eo tamen monito, fore utt induciis
inuiilitcr practerlapsis, rcsponsio pracsumatur nega-
tiva.
§ 2. Interpellationes etiam privatim factae ab ipsa
parte conversa, valent, imo sunt etiam licitae, si forma
superius praescripta servari nequeat ; hoc tamen in casu
de ipsis, pro foro externo, constare debet duobus saltern
testibus vel alio legitirno probationis modo.
§ i. The interpellations should, as a rule, be made at
least in summary and extrajudicial form with the au-
thority of tlv Ordinary of the converted party. The
same Ordinary may grant to the unbelieving party, who
asks for it, time to deliberate, — a respite, — under the ex-
plicit condition, however, that failure to reply within the
term conceded will be regarded as a negative answer.
§ 2. Private interpellations made by the converted party
are valid, and also lawful, if the form prescribed above
cannot be followed ; but in that case evidence that the
interpellation has been made must be given by at least
two witnesses or in some other legal form.
§ i explains the canonical mode of interpellation. We
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 1122 355
say canonical, not judicial, because the text admits of a
summary and extrajudicial form of interpellation. But
canonical procedure is not prescribed in all its rigor.
Hence the regular form and order observed in canonical
trials, presided over by a judge, with plaintiff and de-
fendant, sworn witnesses and citations, etc., is not abso-
lutely necessary. But a summary procedure is required
and suffices.40 Hence the episcopal court should at least
summon the infidel party to appear or to send an an-
swer, if possible under affidavit. What was formerly 50
prescribed concerning the posting of the summons at the
church door may now be supplied by an advertisement
in the newspapers, or by a letter sent by the episcopal
court. In this letter a certain time must be set for an-
swering the questions, which should be styled peremp-
tory, so that the party may know that delay in answer-
ing is tantamount to forfeiture of any further claims.
For, as the Regula Juris in 6° says : " Delay, if per-
sonal, hurts only the person concerned " 8l because a per-
sonal or regular delay, especially when the debtor is ad-
monished by the creditor to pay within a certain time,
is culpable and imputable to the culprit.
Private interpellations may validly be made by the
parties themselves/2 In that case two witnesses must
either hear the question, or see the instrument (paper)
that was sent to the other party, in order to have a proof
for the interpellation and to prevent interference from
the infidel party in a new marriage or challenge of its
validity. An interpellation made by a private party in
a case that came before the Propaganda ia ran like this :
«S. O., June ii, 1768 (Coll., n. nociva est"; cfr. ReifTenstuel, in k.
430)' *■**-
so Ibid. flap. F., Ju!r ai, 1841 {Coll., n.
01 Reg. 26: " Mara sua atilibet 9*9) ; Gaaparri, De Mat., n. 1089.
68 P. P., ibid.
jle
Original fro ni
UNIVERSITY OF WISCONSIN
356
MARRIAGE LAW
—
■
"Will you take me again as your wife?" The answer
was : " Go where you please." This was considered a
sufficient interpellation. A mere bill of divorce or ejec-
tion from the home would be insufficient; even if the
divorce papers could be exhibited, the interpellation must
still be made, if at all possible.54 An interpellation once
made is sufficient, even in case the faithful party puts of!
marriage for a considerable time. But if the interpella-
tion was dispensed with, it must be made, or the dispensa-
tion be renewed in case marriage is delayed for more
than one year.65 For charity's sake it may be made sev-
eral times.8*
effect of interpellation
Can. i 123
Si interpellationes ex declarations Sedis Apostolicae
omissae f uerint, aut si infldelis eisdem negative respon-
dent expresse vel tacite, pars baptizata ius habet novas
nuptias cum persona catholica contrahendi, nisi ipsa
post baptismum dederit parti non baptizatae iustam di-
scedendi causam.
If the interpellations were omitted by virtue of a dec-
laration of the Apostolic See, or if the infidel party has
either explicitly or tacitly given a negative answer to
them, the baptized party may contract a new marriage
with a Catholic, unless he or she has, after Baptism, given
just cause to the infidel party for departing.
MP. F., March 5. 1816 (Coll.,
n. 704).
bb P. F., June 26, iSao (.Coll..
n. 743).
ba S. O.. June 1 a, 1850 {Coll., n.
1044).
►ogle
Original from
UNIVERSITY OF WISCONSIN
CANON 1 124
357
Can. 1 124
Coniux fidelis, licet post susceptum baptismum de-
nuo matrimonialiter cum parte infideli vixerit, ius ta-
men novas celebrandi nuptias cum persona catholica
non amittit, ideoque potest hoc iure uti, si coniux in-
fidelis, mutata voluntate, postea discedat sine iusta
causa, vel iam non cohabitet pacifice sine contumelia
Creatoris.
Although the baptized party has renewed marital re-
lations with the infidel party after Baptism, he or she
does not thereby lose the right to contract a new marriage
with a Catholic, and that right may be used later if the
infidel, having changed his mind, withdraws without a
just cause, or refuses to cohabit peacefully without blas-
pheming the Creator.
These two canons manifestly complement each other,
for both treat of the effect of the Pauline privilege, viz.,
a new marriage.
§ 1. The first canon mentions the declaration of the
Holy See, in virtue of which the interpellation was omit-
ted.
(1) Interpellation in case of polygamy turns only
about one question, znz.: whether the other party will be
converted. This is done in order to cut short all super-
fluous interrogations, especially since there may be a
doubt whether the marriage was valid precisely on ac-
count of polygamy or polyandry." This may safely be
called a general declaration, and therefore requires no
special faculty.
(2) There is another twofold class of cases in which
dispensation was required :
BT S. O., March 38, i860; June
20, 1866; May 19, 1893; Sept. 5,
1855 (Coll. P. P., no. xi88, 1293
[I. P- 716]. '796. "17 polyandry).
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
358
MARRIAGE LAW
(a) Ordinary cases*8 for which habitual faculties of
dispensing were granted to the bishops and vicars apos-
tolic. Ordinary cases are those in which it is impos-
sible to find out the whereabouts of the infidel consort,
or in which it is ascertained after an extrajudicial and
summary investigation that the absent spouse can not be
interpellated. Thus it may happen that no messenger can
reach the place to which the other party has gone ; or that
the distance is so great that no message can be sent ; or
the polygamous party no longer remembers whom he first
married; or the infidel party became insane and therefore
could not be asked."
(b) Extraordinary cases, "when the infidel party can
be reached, but interpellation can not be made without
serious damage to the faithful party or danger to Chris-
tians." fl0 Damage threatened to, or feared by, the neo-
phyte himself was declared insufficient for applying the
faculty of dispensation.01 There must be a real disad-
vantage, which will weigh all the heavier if it is com-
bined with danger to a community. Note that most of
the cases here cited were reported from missionary coun-
tries, China, Bengal, etc.
For the practical application of the Ordinary's power,
we refer to the concluding paragraph of can. 1127. Here
only note that the Constitution of Benedict XIV, " In
suprema" Jan. 6, 1754, may not be cited as conferring
68 S. 0., Nov. 29. 1882 (Coll,
n. 1 581): " Ordinarius casus . . .
tunc evenit. quando scilicet adhibitis
antea omnibus diligentiis etiatn per
f-,ih!i. -is rphemeridcj, ad reptricn-
dum locum ubi conjux in fide lis habi-
ttt, iisgue in irritttm cessit, constet
saltern summarie et extrajudicialiter
coniugem absentetn moneri legitime
non posse, aut menitum infra tern-
pus in monitione praefixvm, tuam
voluntatem non significasse. . . ."
sb" Altitudo," of Paul III;
" Romani Pontificis." of Pius V:
S. 0., June 8, 1836; Nov. 22, 1871
(Coll., nn. 848, 137?).
00 S. 0., Nov. 29, 1882 {Coll., n.
1581).
ei S. 0., Nov. ax, 1883 {Coll,
:i. 1607); tin- faculty was gives for
a certain number of cases.
>ogle
Original from
UNIVERSITY GF V/ISCONSI
CANON 1 124
359
that faculty, for said constitution was of a strictly local,
or personal nature, as it was given to a house of converts
at Venice,02 and is not mentioned in can. 1 125.
Can. 1 123 admits also an express or a tacit negative
answer. Here it must be noted that if the answer to the
first question (whether the infidel party consents to be
converted) is negative, the second question concerning
peaceful cohabitation must be put ; and after a negative
answer the faithful party is entitled to contract a new
marriage. This is the effect of an express or explicit
negative answer. A tacit negative answer would be lapse
of the term assigned for answering, no matter whether the
delay was caused by malicious and intentional neglect or
by physical or moral impossibility.83 After such an an-
swer has been received, the favor must be granted, and
the baptized party is free to marry again. However the
canon lays down a condition : unless he or she has given
to the infidel party just cause for desertion. A just cause
would be adultery known to the infidel party, or leading a
scandalous life, or serious neglect of the marital duty and
education.64 Therefore concubinage must be given up
because incompatible with Christian morals.66
Lastly the canon appears to exclude a marriage of the
converted party with any one but a Catholic ; that is to
say, the convert must marry a Catholic. This must be
considered as a rule, which, however, admits of excep-
tions. For there are several cases related in the Collec-
tanea P. F. in which a dispensation from the impediment
of disparity of worship was granted. Thus a woman
who had married ( ?) a second husband, who himself
02 The Coll. P. F. placed it in
the Appendix, n. 2252.
«'S, O., June 1a, 1850 (Coll., n.
1044); the supposed wife was held
captive by another.
84 S. O.. April ig. 1809 (Coll., n.
3043); Jure 20, r866 (Coll., n.
1393, t p. 71*)-
ccS. 0., March 28, i860 {Coll.,
n. 1188).
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
3&> MARRIAGE LAW
had dismissed his first wife, and borne him children, wa9
granted a dispensation even though the husband refused
to be converted." And one instruction of the Holy
Office" says, in general terms, that if out of a number
of concubines who are heretics, one is to be taken as the
lawful wife, with renewal of the consent, care should be
taken that she become a Catholic, lest a dispensation from
mixed religion should be necessary, which for just rea-
sons is granted. Therefore our canon states a rule,
but does not exclude exceptions.
Can. 1 1 24 extends the privilege to the case where mar-
ital relations have been resumed between an infidel and a
baptized party after the tatter's Baptism, but the infidel
changes his mind and vexes the convert with machinations
against the faith, or tries to get him to practice idolatry,
or makes attempts against conjugal loyalty, or contracts
a new marriage. Here the contumelia Creatoris is veri-
fied** and in all such cases the baptized party is entitled
to make use of the Pauline privilege, even though there
are children born after his or her Baptism. This holds
even if the baptized party committed a crime, provided
only that this crime is not the cause of the changed at-
titude of the infidel party."0
Q
three papal constitutions
Can. i 125
Ea quae matrimonium respiciunt in constitutionibus
Pauli III Altitudo, 1 Iun. 1537; S. Pii V Romani
. PontiGcjs, a Aug. 1571 ; Gregorii XIII Populis, 35
MS, O., Sept. 12, 1855 {Colt., March 5, 1816 (Coll., nn. 4*1, 1114,
n. 1118). 1*95, 704).
07 March *8, i860. 09 S. O., April 19, 1899 {Coll.,
es S. O., Aug. 5. "759; Julr 4. n. 2043).
1855: July IS, 1866; S. C P. F.t
oogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1 125 361
Ian. 1585, quacque pro peculiaribus locis scripta sunt,
ad alias quoque regior.es in eisdem adiunctis extendun-
tur.
In whatever concerns marriage, the constitutions of
Paul III, " Altiiudo," of June 1, 1537, of St. Pius V,
" Romani Pontificis," of Aug. 2, 1570, of Gregory XIII,
" Populis" of Jan. 25, 1585, though given for particular
places, are [hereby] extended to all countries situated
in the same circumstances.
This canon must be looked upon as a declaration,
and therefore as inducing general or common law.70
The constitution of Paul III was given for the West In-
dies and South America. The part that concerns us
reads : As to marriages, we enact that those who had
several wives before their conversion, but do not re-
member which they married first, may after their con-
version choose the one whom they love best and contract
marriage with her by expressing the usual consent; but
those who remember whom they married first, must retain
this one and dismiss the others. We furthermore permit
them to marry validly persons related to them in the third
degree of consanguinity or affinity. St. Pius V's Con-
stitution, also directed to the Indies, considers the case
of polygamy. One husband had many wives and dis-
missed several. After Baptism he was allowed to keep
the one who was baptized together with him, whether
she was his legitimate wife or not. To do away with
all scruples on the part of bishops and missionaries, the
Pope allowed these Indians to keep the woman who had
received baptism as the lawful wife. That this favor
was granted for the Indians only, and could not be ex-
tended to other regions without intervention by the
TO The constitutions themselves ire reprinted in the appendix to the Code.
ioi >gle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
362
MARRIAGE LAW
B
-
-
Apostolic See, was duly recognized by the Archbishop of
Quebec, who implored Gregory XVI to grant such an
extension.71 It was granted. The decision has a pe-
culiar interest. It refers directly to the constitution of
Pius V, whereas the Holy Office distinguished two dif-
ferent cases, regardless of whether the first marriage was
valid or not. If the first marriage contracted with wife
No. 1 was valid, the husband has to retain her if she was
also converted or consented to live with him without
blasphemy of the Creator. But if the first marriage was
invalid, and the subsequent valid," the convert was al-
lowed to choose from among his several so-called wives
the one who was ready to be baptized or any other
who was not formerly his wife, provided she was ready
to be baptized and the consent was renewed. The de-
cision added: If, in case of the first marriage being
valid, the husband would not take the one he married
first, but the second or third, because the first wife re-
mained an infidel, he must renew the consent, and the
Ordinary must apply the faculty of dispensing from an
interpellation of the first wife if such interpellation could
not be made or would prove useless.78 This sounds like
a modification or interpretation of an otherwise far-going
Constitution. In matter of fact the Constitution of Greg-
ory XIII was restricted to missionary countries (Angola,
Ethiopia, Brazil, and India) and to Ordinaries and mis-
sionaries, especially of the Society of Jesus, who could
dispense converts married before Baptism, enabling them
to contract a Catholic marriage, though the pagan consort
was still alive, without as much as asking the latter's con-
sent or expecting an answer. But the Pontiff added that
Tl S. O.. June 8, 1836 (Coll., n.
848).
TJ Ibid. : " ul duttiiari possit ma-
trimania huiutmodi ad inttar hrllu-
arum centenda eut."
T3 Bened. XIV, Dt Syn. Dtotc.,
XIII, C. ai.
Go >gle
Original from
UNIVERSITY OF WISCONSIN
CANON 1 125
363
evidence must be furnished, at least by summary and ex-
tra-judicial investigation, that the wife could not lawfully
be interpellated or that, if interpellated, she could not
answer within the time prescribed in the interpellation.
Marriages thus contracted by converts were declared to
be valid even if it should become known afterwards
that the former consorts had been prevented from giv-
ing an answer and had been converted to the true faith
at the time the second marriage was contracted. Here in-
terpellation of some sort is required. What then are
the distinctive characteristics of these three constitutions?
Put in order they are :
Paul III
Supposes polyga-
my.— First wife to
be rrtained if re-
membered ; other-
wise the husband
may choose the one
whom he prefers,
whether baptized or
not. — New consent
required. — No in-
terpellation.
Pius V
Supposes polyga-
my.— Man may re-
tain any one of the
women he has mar-
ried, if she em-
braces the faith. —
No consent pre-
scribed.— \To inter-
pellation necessary.
Gregory XIII
Does not mention
polygamy, but cap-
tivity of the infidel
party. — Baptized
party may marry
any husband who is
a believer, even
though of another
rite. — Summary in-
terpellation.
From this juxtaposition it will easily be perceived that
the most favorable interpretation is that of St. Pius.
But at the same time it is the least canonical, stretching
the privilege to its very limit, because it pays regard
neither to the former marriage nor to interpellation.
Paul Ill's constitution attempts to preserve a semblance
of legitimate marriage, since it requires that the first wife
must be retained, if remembered, and the consent renewed.
A purer notion of the Pauline privilege is manifested by
the constitution of Gregory XIII.
A difficulty remains as to the consent and the necessity
of interpellation by divine right. As to the consent nec-
essary for every marriage, clearly no pope could have
*Ie
Original fro m
UNIVERSITY OF WISCONSIN
364 MARRIAGE LAW
the intention to dispense therefrom. Hence if a mar-
riage contracted in infidelity was valid or legitimate, no
new consent is required if the husband after Baptism re-
tains his legitimate wife, i.e., the one, as Paul III sup-
poses, whom he married first. If, however, the marriage
contracted in infidelity was invalid, either for lack of
consent or on account of a condition which invalidated
the substance of marriage, or by reason of an existing
impediment of natural or divine law,74 the husband after
his conversion was allowed to marry another woman, who,
according to St. Pius's constitution, must be a Catholic;
and this marriage must be contracted by renewed consent
and with due regard to the prescribed form.76
What about the necessity of interpellation, which Paul
III and Pius V seem to disregard entirely? There can
no longer be any doubt that their constitutions amount to
a declaration,7* and are not a relaxation, of the law. By
a declaration the Pope merely explains the divine law
which prescribes interpellation, declaring that in particu-
lar circumstances, for which the declaration is given, the
law ceases to bind " in its whole latitude, as far as inter-
pellation is concerned.
The new Code, in general terms, extends these constitu-
tions to all countries where the same, not merely similar,
circumstances prevail. Such is the case in pagan coun-
tries chiefly. Note that these circumstances must effect
, the countries, not merely persons, as the three constitu-
tions were issued for particular countries, not cases. We
Q
'■■'. Dirine or natural law prohibits 17 Fcije, I. c, n. 494, p. 373, add-
polygamy, wherefore Pius V may ing however: " Quoad nec*s*il*-
be said to suppose these polyga- tern retinendi primatn uxorem volen-
rooua marriages to be invalid. tern saltern pacifice cohabitart."
75 Keije, /. c, n. 486, p. 358. This addition does not aave the
70 Piua V says: " declaramtu " '; Constitution of Piui V.
Paul III: "dtctmimut."
'le
£ * -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 1 136
365
scarcely believe that the U. S., or even our Indian Reser-
vations, could claim to be included in this category.
former marriage dissolved
Can. 1 126
Vinculum prioris coniugii, in infidelitate contracti,
tunc tantum solvitur, cum pars fidelis reapse novas
nuptias validc iniverit.
The bond of a first marriage, contracted in infidelity,
is dissolved only when the baptized party contracts a new
marriage validly. The dissolution of the former bond
takes place at the moment when the baptized party gives
his or her consent to a new marriage. From that moment
the infidel party is free.
This doctrine may be called certain, as there is no rea-
son to doubt that the infidel party may validly contract a
new marriage, although Benedict XIV entertained a
doubt on this head.78 It is a principle of common law, as
the H. O. plainly states, that if the wife is freed from
the conjugal tie, the husband also is freed, for the bond
is mutual, and therefore the freedom of the one entail*?
freedom for the other.78 And this freedom certainly in-
volves the liberty of contracting a new marriage. Or is
perhaps the favor of faith to be understood as involving a
necessary disadvantage to the unbeliever? This assump-
tion would only cause hatred against religion. But if the
baptized party does not contract a new marriage, the un-
believer is not free, but bound to celibacy according to
ecclesiastical law. The following case is to the point.
78 Benedict XrV, " Postrtmo
mensc," Feb. 38, 1747. 8 58; b« it
appears 35 certain in S. 0., Aug.
5. 1759; July 11. 1866 {Coll., nn.
431, 1395)-
Tt S. O., Sept 16, 1824 {Coll.,
n. 784. I. P- 453>-
.;Ie
Original from
UNIVERSITY OF WISCONSIN
366 MARRIAGE LAW
A Chinaman who sold his wife and married another,
wished to embrace the faith. Interpellation showed that
the first wife was ready to become a Catholic, but could
not because detained by the man who purchased her.
The decision of the Holy Office was that the Chinaman
could not be baptized unless he dismissed his second wife,
and the first wife was told to abstain from carnal inter-
course with her second husband as a condition of Bap-
tism.80
Note the word " tantum" in the text: it excludes
entry into the religious state and the reception of holy
orders, because the baptized person taking such a step
would not be free from the marriage bond, and therefore
neither would the infidel party, who consequently could
not marry validly if his consort became a religious or re-
ceived higher orders. Both these steps, moreover, would
require an apostolic dispensation. The party who entered
religion by profession, or received orders, would not be
obliged to resume his relations with the other party after
religious profession or ordination. On the other hand, if
the infidel party became converted and baptized before
the other made religious profession or received orders,
it appears but just and reasonable to maintain that the
party first converted should return to the other.11
Whether the Pauline privilege may be applied in case
one party joins a non-Catholic sect, is a canonically use-
less question, because the Holy See would hardly be con-
sulted in such a case.82
SO S. O., Jan. 29. 1805 {Coll., n. 81 Feije. /. C, n. 500, p. 378 f.
680). 83 Feije, /. c, n. 502, p. 381.
od by GoOgle
, ,.] , Original from
UNIVERSITY OF WISCONSIN
CANON 1 127 367
presumption in doubtful cases
Can. 1127
In re dubia privilegium fidei gaudet favore iuris.
In doubtful cases the law favors the privilege of faith,
i.e., the liberty of the convert to remarry. Such cases
have been solved by the H. O. In one case there was a
doubt as to the validity of former marriages, and the hus-
band was allowed to choose any of the women he had
married, or another, provided she embraced the faith.88
In another case, from Sioux Falls, S. D., Indians claimed
they had married several women to test their character
but with no intention of contracting a real marriage.
The decision was that if their statement were found true,
the marriages were to be held invalid; if doubtful, and
the women were not baptized, they were free to marry
whom they pleased.84 In another case it was decided
that crimes committed before or after Baptism were not
a sufficient reason for the departure of the infidel party."
A peculiarly delicate case was this : The husband be-
came converted and continued cohabitation, but on ac-
count of continual quarrels finally left his wife, asserting
that he had never intended to take her for his wife.
The latter after her conversion would not return to him.
May the husband marry another? If persuasion is use-
less, and he has given no cause for the woman's depar-
ture or made satisfaction afterwards, and if he is in
danger of eternal damnation, then, after formal interpel-
lation, he may marry another.86 That this is the limit
83 S. O., Dec 9. 1874 ad 13 m S. 0., April 36, 1899 (Coll., n.
(Coll.. n. 1427). -/nUi: "at ad menttm. — Mens est
84 S. ' >.. May 19, 1892 (Coll., n. ut in dubio iudicium tit in fsvorem
1796). **•*■*
sr. S. 0 . April 19, 1899 {Coll., n.
moj.3).
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
368 MARRIAGE LAW
of the privilege of faith is evident from the many clauses
added in the rescript.
The question may be asked : What about the faculties
of our bishops who enjoyed the right of dispensing wkh
gentiles (see Form I, art. II)? The answer, we believe,
should be as follows:
. 1. This faculty in the proper sense of the word is no
longer given, since the Holy See claims no dispensation,
but merely a declaration.
2. This declaration may be given only by the Holy See
itself (Holy Office), but by no inferior authority.
3. In ordinary cases, which do not fall under the three
constitutions, bishops must proceed according to the Code.
Therefore:
(a) The marriage must have been contracted by both
parties whilst they were certainly unbaptized ; a dubious
Baptism would not permit the application of the privi-
lege;
(b) After Baptism, and not before, either a summary
canonical interpellation authorized by the Ordinary, or
a private interpellation duly proved, must be made to
the infidel party concerning the two questions ;
(c) In the case of polygamists one question : " whether
the unbeliever will be converted," is sufficient;
(d) After a negative answer, or undue delay in an-
swering, the baptized party may contract a new marriage,
in virtue of which the former marriage is dissolved and
the infidel party becomes free. No other intervention on
the part of the Ordinary is needed.
4. The extraordinary case mentioned above (under
can. 1 124, § 1, n. 2, b) falls under the favor of law and
may therefore be solved by the Ordinary,
5. Concerning the cases mentioned in the three con-
stitutions, the Ordinaries are judges whether their coun-
G| ^ Original from
OOglt UNIVERSITY 0FWI5C0NSIN
CANON 1 128 369
try is situated in the same circumstances as those for
which said constitutions were given. But they are not
allowed simply to make use of that privileged declaration
if the circumstances concern particular parties only;
for such an extension a new papal declaration would be
needed.
Here we close the consideration of the Pauline Privi-
lege. Its importance seemed to call for a somewhat ex-
tensive treatment. For the rest, we have followed a
safe guide, and abstained as much as possible from the use
of secondary sources.
ART. II
separation as to bed, board, and dwelling-place
Can. 1128
Coniuges servare debent vitae coniugalis commu-
nionem, nisi iusta causa eos cxcuset.
Married people are bound to live together unless they
have a just cause for separation.
This follows mainly from the secondary purpose of
marriage, i.e., mutual help, which requires a common
dwelling-place. However, there may be weighty reasons
that excuse from conjugal cohabitation. The Council of
Florence (1439-1442) maintained the indissolubility of
marriage against the Greeks, but admitted separation for
reason of adultery.87 The Council of Trent declared
that such a separation was permissible either forever or
for a certain time.88 But the reason must be one which
an ecclesiastical judge will acknowledge as canonical and
which would justify him in pronouncing sentence of sep-
8T DtereUm pro Armtnis, Den- 88 Sess. *4. c*n. 8, di saer. mat.
linger, J. c, n. 597-
G| _ Original from
OOglt UNIVERSITY OFWISCONSIN
370
MARRIAGE LAW
■
aration. This also obtains when a bapti2ed person has
contracted marriage with an unbeliever, with a dispensa-
tion from disparity of worship, and the latter proves to
be an adulterer.89
Separation must be duly distinguished from divorce in
the proper sense. The latter generally implies dissolu-
tion of the matrimonial bond. Such a dissolution is pos-
sible only, as the preceding canons have enacted, in cases
of marriage contracted between baptized persons and not
yet consummated, if either solemn religious profession is
made, or a papal dispensation obtained. A legitimate
marriage which has been duly consummated can be dis-
solved by the application of the Pauline privilege. Sep-
aration leaves the marriage bond intact
ADULTERS A CAUSE OF SEPARATION
Can. i 129
§ 1. Propter coniugis adulterium, alter coniux, ma-
nente vinculo, ius habet solvendi, etiam in perpetuum,
vitae communionem, nisi in crimen consenserit, aut ei-
dem causam dedcrit, vcl illud expresse aut tacite con-
donaverit, vel ipse quoque idem crimen commiserit.
§ 2. Tacita condonatio habetur, si coniux innocens,
postquam de crimine adulterii certior factus est, cum
altero coniuge sponte, maritali afFectu, conversatus fu-
erit; praesumitur vero, nisi sex intra menses coniugexn
adulterum expulerit vel dereliquerit, aut legitimam ac-
cusationem fecerit
§ 1. If one of the spouses commits adultery, the other
has cause for separation, either forever or for a time, and
may therefore leave hearth and home. However, sep-
8» S. O., July 4, 1855 (,CoU.s n. 11 14).
oogle
Original fro m
UNIVERSITY OF WI5CGNSI
CANON 1 129
37i
las aration is not permitted if the second party has con-
ns- sented to the crime, or been responsible for it, or has
53 either expressly or tacitly condoned it, or committed the
same crime.
t't (1) Adultery, to be a cause of separation, must be
ik- certain and consummated by carnal intercourse.00 A
o- mere suspicion would not be sufficient,81 but a strong pre-
0 sumption would. Such a presumption would be if the
4 wife were found or seen with another man in a very com-
5 promising position.82 But some sort of proof is re-
it quired. Here it may be remarked that jealousy is a
i. fertile motive of suspicion, which should not be accepted
1 by an ecclesiastical judge. Fornication committed before
marriage is not adultery."
(2) But although one party may have committed adul-
tery (which would of itself be a sufficient and canonical
reason for dismissal) yet if any one of the four condi-
tions mentioned in can. 1129, § 1, is present, the right of
dismissal ceases. These conditions are:
(a) If the so-called innocent party has consented to
the other's adultery. This would be the case if the hus-
band would deliver his wife to a friend or relative for
the purpose,84 or if he would, as it were, sell her for
money. But we believe that even in that case a formal
or express consent is required, because no one may be
supposed to deprive himself of the exclusive right con-
ferred by marriage.
(b) If one parry has given cause to the other for
committing adultery. This happens if the husband does
»o Some, r. g. Feije (/. c, n. 579,
p. 464) require "formal" adultery,
but we fail to see the necessity of
adding that adjectire, since a val-
idly married percon cannot commit
simple fornication.
»i c. 3, C. 3a, q. 1 ; c. 33. C. 3a.
q. 5. etc., all require proof.
02 C. ia. X, :i. 13: solus cum
sola, nuius cum nuda.
as C. .5. X. II. »4.
M C. 6, X, IV, 13.
'le
Original fro ni
UNIVERSITY OF WISCONSIN
372 MARRIAGE LAW
not support his wife decently, so that she is compelled to
seek a livelihood by improper means;85 or if he deserts
her,*6 or if the wife would have frequent lapsus carttis
with others, although perhaps not amounting to real
adultery ; " or if she would unreasonably refuse her
husband the debitum.
(c) If the so-called innocent party would also commit
adultery, and would not purge himself or herself of that
imputation ; M because " equal crimes are wiped out by
mutual compensation." M
(d) If no express or tacit condonation or pardon has
followed. The latter case is explained in § 2 of our canon
which says : Adultery is condoned tacitly, if the innocent
party has freely had marital relations with the adulterous
party after knowing of the adultery ; condonation is pre-
sumed if the innocent party does not expel or leave the
guilty party or bring the case into court within six months.
Concerning reconciliation or condonation two rules
may be regarded as certain: I. The husband is not
obliged to be reconciled to his adulterous wife, and, z.
He may, if he wishes, receive her back into his confidence.1
The same rules apply to the wife, although the text 2 and
the authors mention her case only for reasons which are
more or less physiological. But the fact that marriage
rights are mutual and equal must not suffer obscuration.
Besides, a strict obligation on the part of the husband
to dismiss his adulterous consort cannot be solidly
proved.8 Therefore our Code admits reconciliation.
This must be effected by some visible or external sign,
SB C. 5, X, IV, 19. erimina rxutua compensation* ie-
MC. 4. X. IV. 10; such were Uantur."
excommunicated; cfr. C $2, q. 7. l Sanchez, /. c, I X, disp. 13, n.
fiassim. I ft.
9i c. 19, x, in, $*. * c. 3, x, y* 16.
•• C. 1, C. 32, q. 6. ■ Sanchez, /. c, on. 6 ff.
MC. 7, X, V, 16: "cum pari*
>Ie
Original from
UNIVERSITY OF WISCONSIN
CANON 1 1 29 373
as the Code expresses it, by marital conversation or
relation. Such would be asking the debitum conjugate, or
other familiarities usual between married people. But
these signs must be spontaneous, not prompted by com-
pulsion or fear (sponie, says the text), and hence merely
to render the debitum would not be a sure sign. Fur-
thermore it is required that the fact of adultery was
really and undoubtedly known (adult erii certior f actus),
because condonation is impossible as long as the injury is
unknown. Hence even if marital intercourse had oc-
curred during the time of uncertainty, this act would not
preclude the use of the right of the innocent party to
leave the faithless one, after certain knowledge has been
obtained.4
The second clause of § 2, can. 11 29, mentions presump-
tion. The law presumes condonation of adultery if after
six months the innocent party has not made use of his or
her right under the law. The Roman law provided per-
emptory prescription five years after the date of knowl-
edge, so that after this period an accusation against the
adulterous party was no longer admitted.8 The ecclesi-
astical law draws no limit, and therefore accusations may
be brought at any time, if no condonation has taken place.
The Roman law also admitted a period'of sixty days,
wkhin which the father and the husband could accuse the
adulteress, and four months more were granted to out-
siders to bring forward the accusation. In practice six
months were permitted also to the husband for accusa-
tion.8 This custom is adopted by the Code. After
the lapse of that term the lawgiver presumes condonation
if the unfaithful party was not expelled or deserted.
4 Ibid., diflp. 14. 6 L. 4t «*"«T- 48, 5. od l*g*m
fi L. 5, Cod. IX, 9, ad legem juliam Je adult, corrig,
jnliam dt adult, et jtupra.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
374 MARRIAGE LAW
This is, however, merely a presumption, which does not
take away the right if evident and conclusive reasons are
advanced for not having made use of it. However, it
may be safely stated that an accusation brought later
than six months post factum would require strict proof
that no marital conversation or relation had taken place
between husband and wife during the intervening period.
The law presumes condonation in order to maintain peace
in the family.
taking back the guilty partner
Can. i i 30
Coniux innocens, sive iudicis sententia sive propria
auctoritate legitime discesserit, nulla unquam obliga-
tione tenetur coniugem adulterum rursus admittendi
ad vitae consortium ; potest autem eundem admittere
aut revocare, nisi ex ipsius consensu ille statum matri-
monio contrarium susceperit
The innocent spouse, if he or she has separated from
the other legitimately, either by a judicial sentence or by
private authority, is under no obligation to readmit the
guilty partner to married life ; they may, however, admit
or recall each other, unless, with the consent of the inno-
cent spouse, the guilty one has embraced a state incom-
patible with matrimony.
What we have said above is here corroborated, and
therefore the controversy mentioned by Sanchez,7 as to
the obligation of dismissing the adulterous party, is now
out of date. Note that the innocent spouse may depart of
■
his or her own accord, without appealing to court. This
should not, however, be done unless the fact of adulter)' 8
is proved, otherwise restitution may be claimed.
7 L. c, 1. X, dijp. 13, n. 4. 8 Although wdomy and bestiality
n'C
/" " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 1 1 30 375
The second clause states that reconciliation or re-
sumption of married life, though permissible in itself,
becomes impossible if the guilty spouse, with the consent
of the innocent one, has embraced a state of life incom-
patible with Matrimony. Such a change is brought about
by entering the religious state or receiving sacred orders.
Since no one can be validly admitted to religion who is
bound by the matrimonial tie,0 the circumstance of adul-
tery must be expressed in the petition to be sent to the
Holy Sec. Furthermore, an Apostolic dispensation is re-
quired for holy orders to be received by a married man.10
If a dispensation is granted and religion is entered or
sacred orders are received, the guiltless party has no
longer any claim on the party who embraces the religious
state or was ordained subdeacon.11 A fortiori, the adul-
terous party has no right to choose another state of life
without the free consent of the innocent party.12 The
term religious state implies not only solemn but also sim-
ple (either temporary or perpetual) vows. But it may be
well to repeat that entering a religious order with solemn
profession does not dissolve the bond of a consummated
marriage, and that, therefore, the party remaining in
the world cannot validly contract another marriage. All
these consequences the disloyal spouse must attribute to
his own infidelity, because one who is himself unfaithful
has no right to expect loyalty from others.1*
differ specifically from adultery, yet 12 Sanchex, /. c, 1 X, disp. IO,
both would be sufficient reasons o. 1* f.
for asserting the right t» ca*u, cfr. is Reg. luris 75 in 60: " Fnu-
Sanchez, I. c, L X, disp. 4, n. 13 f. tra sibi fidem quis fostulat cb to
9 Can. 54a. strvari, qui fidem a *9 pratshtom
10 Can. 133, I 3. scrvare rtcunt."
liCfr. cc. 15, 19, X, III, jj; c
4. X, IV, 19.
oogle
Original from
UNIVERSITY OF WISCONSIN
376 MARRIAGE LAW
other causes for separation
Can. 1131
§ 1. Si alter coniux sectae acatholicae nomen dederit ;
si prolem acatholicc educaverit; si vitam criminosam
et ignominiosam ducat; si grave seu animae seu cor-
poris periculum alteri facessat ; si sacvi tiis vitam com-
munem nimis dirndl em reddat, haec aliaque id genus*
sunt pro altero coniuge totidem legitimae causae dis-
cedendi, auctoritate Ordinarii loci, et etiam propria
auctoritate, si de eis certo constet, et periculum sit in
mora.
§ 2. In omnibus his casibus, causa separation^ ces-
sante, vitae consuetudo restauranda est; sed si separa-
tio ab Ordinario pronuntiata fuerit ad certum incer-
tumve tempus, coniux innocens ad id non obligator,
nisi ex decreto Ordinarii vel exacto tempore.
The Code now proceeds to enumerate other causes for
separation besides adultery. Such causes are, for ex-
ample, if the other party joins a non-Catholic sect; or
gives his children an education which is not Catholic ; or
leads a scandalous and disgraceful life; or gravely en-
dangers the spiritual or bodily welfare of the other; or
renders the marital union intolerable by acts of cruelty.
These and similar reasons give the other spouse the right
to withdraw by appealing to the Ordinary of the diocese,
or even without legal process, if they are proved with
certainty and delay would be dangerous.
It is a commonplace of ecclesiastical writers to com-
pare infidelity, idolatry, heresy to fornication or spiritual
adultery and on this ground to admit separation.14 This
is the first cause mentioned in the text. The second is
14Cfr. c 3, C s8, q. 1; c 7. C jj, q. 7; o. 1. C jj, q. a.
5 <vmiL> Original from
• OO^lt UNIVERSITY OF WISCONSIN
CANON 1131 377
educating one's children in a non-Catholic denomination.
to which category belong also the " Old Catholics." A
third cause is leading a criminal or shameful life (rob-
bery, bawdry,15 drunkenness). A fourth cause is spiritual
or bodily danger. There would be spiritual danger if the
Catholic party were prevented from exercising his or her
religion, or persistent onanism. Bodily danger accrues
from contagious diseases of an incurable and hereditary
nature.18 By cruelty is here understood not only quar-
relsome and angry wrangling, but actual maltreatment
(wife-beating) ."
Whenever such a cause is proved by facts and wit-
nesses, the innocent party may freely depart, or invoke
the episcopal court. However, says § 2, when the rea-
sons that prompted the separation cease, the marital rela-
tion must be restored. Only after the ecclesiastical court
has rendered a decision in favor of a separation, either
for a limited term or indefinitely, is the innocent spouse
free from the duty of cohabitation.18 If the Ordinary
should command resumption of cohabitation, or if the de-
cree of separation was given for a limited period only,
married life must be resumed. It is, therefore, always
safer to invoke the ecclesiastical court in such cases.19 A
civil court may indeed give sentence of temporary divorce
or separation, but this has merely the effect of private
separation, unless the episcopal court accepts the evidence
and verdict of the civil court and makes them its own.
is C. 4, C aB, q. i. leCfr. e. i, C 33, q. a; c. 6,
i«Tbe S. C Cone., March IX] X, IV, 19.
Sept. 19; Dec 16, 1786 (Ricbtcr, i»Thla la especially the case if
Trid., p. 290, n. 158) reluctantly one party has taken an oath not to
granted separation on account of toe accuse the other of adultery; c 35,
" Celtic disease." X, II, 24. %
IT Verbal injuries are insufficient;
S. C C, June 13, 1789.
jle
I , Original fro ni
UNIVERSITY OF WISCONSIN
-
-
378
MARRIAGE LAW
EDUCATION OF CHILDREN
-'
Can. 1132
Instituta separation^ filii educandi sunt penes con*
iugem innoccntcm, et si alter coniugum sit acatholicus,
penes coniugem catholicum, nisi in utroque casu Ordi-
narius pro ipsorum filiorum bono, salva semper coram-
dem catholica educatione, aliud decreverit
After the separation, the children must be educated by
the innocent spouse. If one of the parties is a non-Cath-
olic, the education of the children belongs to the Catholic
party, unless in either case the Ordinary decides other-
wise for the good of the children and their Catholic
education is duly provided for. Hence children of a
mixed marriage may be entrusted to the non-Catholic
parent, if, for instance, there is a mother-in-law, or aunt,
or other relative who sees to their Catholic education.
The underlying reason for this law is that the Catholic
Church considers herself the guardian of the faith.10
Difficulties may occur under this canon, especially in
countries which have laws determining the children's re-
ligion. The rule should be to safeguard the Catholic
education of the children in the best and least offensive
way.
mc. j, x, in, 3a.
>gle '
Original from
UNIVERSITY OF WISCONSIN
CHAPTER XI
REVALIDATION OF MARRIAGE
A marriage, sooner or later, may be discovered to be
suffering from an impediment which rendered it invalid
at the time it was contracted. Marriage being a bilateral
contract between two capable persons, it is evident that,
if the consent was defective or the parties were prevented
by an impediment, there was no marriage in any given
case. This discovery may cause perplexity to the pastor
or confessor and prove a source of public scandal if
the existence of the impediment becomes known. What
is to be done in such a case? If nothing else is required
but a renewal of consent, the matter is comparatively easy.
But it may happen that an impediment must be removed
before the consent can be renewed. The worst trou-
ble is encountered where the renewal of consent offers
difficulties which would render revalidation impossible or
jeopardize the existing union and the legitimacy of the
offspring. If a marriage has been contracted invalidly
but with due observance of the prescribed forms, it may
be revalidated by the contracting parties renewing their
consent. If one party refuses, nothing remains but to
heal the marriage " in the root." The former procedure
is called simply revalidation, the latter, sanatio in radice.
37V
* I tM\Llli> Original from
.OO^K. UNIVERSITY OF WISCONSIN
■
pi
380 MARRIAGE LAW
%
ART. I
SIMPLE REVALIDATION
The Code in the first two canons of this article describes
the act of revalidation and in the following determines
the different impediments in relation to the consent; in
can. 1 136 it considers the defect of the original consent,
and, finally, in can. 1137, deals with the lack of form.
nature of revalidation
Can. 1 1 33
§ z. Ad convalidandum matrimonium irritum ob im-
pcdimentum dirimens, requiritur ut cesset vcl dispense-
tur impedimentum et consensurn renovet saltern pars
impediment! conscia.
§ a. Haec renovatio iure ecclesiastico requiritur ad
validitatem, etiamsi initio utraque pars consensual
praestiterit nee postea revocaverit
To revalidate a marriage which is invalid because of a
diriment impediment, it is required that the impediment
cease or be dispensed from, and that the consent be re-
newed at least by the party who is aware of the impedi-
ment.
This renewal of consent is required by ecclesiastical law
for validity, even if both parties gave their consent in
the beginning and never withdrew it.
renewal of the consent
Can. 1 134
Renovatio consensus debet esse novus voluntatis
actus in matrimonium quod constet ab initio nullum
fuisse.
jle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 1134 381
The renewal of the consent must be a new act of the
will rati f ying a marriage which is known to have been null
from the beginning.
Two conditions are here set forth for the revalidation
of an invalidly contracted marriage; removal of the im-
pediment and renewal of the consent.
(r) The impediment is understood to be an invali-
dating one, because a merely prohibitive impediment does
not render a marriage null. Now such an impediment
may cease either by itself or by a dispensation. Thus
the impediment of immature age ceases after the legal
age has been attained, and the impediment of disparitas
culUis, after one has received Baptism.
An impediment may also be dispensed from. Note,
however, that some impediments admit of no dispensa-
tion {e.g., a previous marriage bond, impotence, consan-
guinity of the first degree in linea recta), whilst from
others the Church never dispenses, e. g., the impediment of
the priesthood. If an impediment cannot or may not be
dispensed from, no revalidation is possible, and the par-
ties must separate, unless, for very special reasons, a
friendly cohabitation be permitted. If the impediment
may be dispensed from, as in the case especially of minor
impediments, revalidation may take place, provided that
(2) The consetit be renewed. Concerning this pro-
cedure our Code, following the now prevalent opinion
of the School declares
(a) That the renewal of the consent, generally speak-
ing, is required only from the party who is aware of the
existing impediment. For instance, James was sponsor
at the baptism of Gemma, who is now his bride. James
knows of the impediment. Gemma does not. Therefore
according to our canon James must renew the consent,
supposing he really and truly gave it when he married
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
382 MARRIAGE LAW
Gemma. This seems very plain. Yet it must be added
that not a few authors x required the renewal of the
consent by both parties. Their argument was based on
the theory that " a bilateral contract cannot limp." They
supposed that the marital consent given at the so-called
marriage was null and could therefore not continue.
This argument, though by no means destitute of weight,
must now be discarded as contrary to the text of the law.
The marital consent once given, and certainly enduring
in the party ignorant of the impediment, is supposed to
exert its original efficacy and only needs, as it were, to be
repeated.
(b) But the renewal is strictly required to validate the
marriage. Hence ecclesiastical law has always insisted
upon the renewal if no sanatio was applied. Note the
term " iure ecclesiastic o," which is purposely put into
the text. For if the renewal were required by natural
law, as the authors mentioned above hold, no dispensa-
tion from it could be granted, and a sanatio would be
almost, if not entirely ,' impossible. That ecclesiastical
law insisted on the necessity of a renewal, is evident from
various instructions given by the Roman Court.1 The in-
trinsic argument for such necessity lies in the nature of
the consent, which is the instrument of marital union, and
is rendered fully efficacious only after the impediment has
been removed. The Church, therefore, has a right to in-
sist upon a condition which at the same time gives full as-
surance of the validity of the marriage to the party that
suffered from the impediment.
l Thus Sanchez, 1. VIII, diap. 35: cumatancea. But It is always dan-
Schmalr.grueber, IV, i6, n. 157; gerous to tamper with the natural
Boekhn, IV, 3, n. 38 1 law.
x It may be explained by assum- IS. O., Jan. u, 1769; Dec. 9.
tag a declaration that the natural 1874 (Coll.. n. 47a ad II, 5; a.
law does not oblige under men cir- 1427 ad 18).
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 1134 383
(c) However, says can. 1134, this renewal must be
a new act of the wilt ratifying the marriage that was in-
validly contracted. Therefore, James, who contracted an
invalid marriage with Gemma, must renew his consent
with the express intention of ratifying this marriage with
Gemma and no other person. The case becomes more in-
tricate if a man had more than one wife, and the divorce
evil, as in Japan,* is rampant. If the divorce merely
proceeds from an error and not from a positive act of the
will or any strict condition, the first marriage con-
tracted in infidelity is valid, and no dispensation for re-
validating the second marriage can be granted even after
Baptism. It may happen that a wife who is willing to
receive Baptism, lives with a husband who claims the right
of leaving her in order to contract a new marriage. In
such circumstances the wife should not be refused Bap-
tism, but should be told to make every effort to induce
her husband to declare that he regards her as his lawful
wife. If this is impossible, both are to be left in bona
fide. If a baptized wife marries an infidel husband, the
marriage is null and void on account of the disparity of
cult, even though one or both parties are ignorant of
the existence of that impediment. If there is at least
the outward semblance of a true marriage, the dispensa-
tion from the impediment of disparity of cult should be
applied for and the consent renewed, otherwise a sanatio
must take place.*
Note that the renewal of the consent must be explicit
and that an implied consent (vUt,, one contained in the
copula cum affectu maritalx) is not sufficient.* Hence
the renewal must be an act of the will by which the
« S. O., March u, 1868 (CoU., « S. O., June 12, 1850 {Cull., n.
»• I3*7>- 1044)'
5 S. O., Dec 9. 1874 {Coll., 11.
1437 ad 18).
G| Original from
UOglt UNIVERSITY 0FWI5C0NSIN
384 MARRIAGE LAW
party says : " I will take thee for my lawful husband
(or wife)."7
mode of renewal after the impediment is removed
Can. 1 135
§1. Si impediment urn sit publicum, consensus ab
utraque parte renovandus est forma iure praescrxpta.
§ 2. Si sit occultum et utrique parti notum, satis est
ut consensus ab utraque parte renovetur privatim et
secreto.
§ 3. Si sit occultum et uni parti ignotum, satis est ut
sola pars impediment! conscia consensum privatim et
secreto renovet, dummodo altera in consensu praestito
perseveret,
§ I. If the impediment is public, the consent must be
renewed by both parties in the form prescribed by law.
§ 2. If the impediment is occult and known to both
parties, it suffices that the consent be renewed by both
privately and in secret.
§ 3. If the impediment is occult and known to only
one of the parties, it is enough that the party who is
aware of the impediment should renew his consent pri-
vately and in secret, provided the other party's consent
continues.
The first section treats of public impediments. A case
solved by the Holy Office may illustrate this law. In
Ueskiib many Mohammedans had embraced the Catholic
faith, but the men conducted themselves outwardly like
Muslems, whereas the women were not afraid to profess
their faith. Of course the clergy could not assist at the
marriages of such persons, and they were consequently
invalid for lack of the prescribed form. What was to
T How this is to be done lee under can. ujs, I J.
p
►ogle
{"" -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 1 13s 385
Le done? The Holy Office decided that these occult
Christians must be admonished to contract marriage ac-
cording to the rite of the Church, with the renewal of
consent, before the pastor and two witnesses, but with-
out solemnities.9 It is safe to say that can. 1098 may
be applied here if the conditions therein mentioned are
verified. A public impediment is especially that of dis-
parity of cult, and it is rectified only by the consent of both
parties given in the prescribed form.8 Cases of consan-
guinity and affinity require the same procedure, except
perhaps if both parties were ignorant of the existing im-
pediment.10
§ 2 mentions an occult impediment known to both
parties, such as would arise from public honesty or crime
and also from disparity of worship in countries where
unbelievers are in the majority, and scandal must be
avoided. In such circumstances a secret and private re-
newal would suffice.11
§ 3 allows the renewal of consent by one party only, if
the impediment is occult and unknown to the other. The
impediment of crime ia may enter here, and it may not be
amiss to state that the S. C. Poenitentiaria, when granting
a dispensation from an occult impediment of a defamatory
character (illicit affinity) was wont to add the following
clause : " Certiorata alia parte de nullitate prioris con-
sensus, et quatenus ha.ee certioratio absque gravi pericula
fieri ncqueat, renovato consensu iuxta regulas a probatis
» S. O-, Not. t$, *S8j (Coll., n. soUat." But the times were
1579); the decisions of S. C. C. troubled,
quoted by Card. Gaaparri refer to -'> S. O., Jan. ia, 1769 'Cell, n.
a marriage contracted from fear. 47*. H» «5>: " '*' «"' «' "•'«"
d Bened. XIV, " Singulari," Feb. solos coniuges privatim habeatur re-
9* 1749. 5 1. novalio :onsensus, patefacta tamen,
10 S. O., March ti, 1868 (Coll., quoad fieri potent, etiam parti «■-
n. 152(1): "quoad eos in bona- Jida fidtli prioris matrimonii nullitate."
nCfr. c 7, X, IV, 7.
>Ie
Original from
UNIVERSITY OF WISCONSIN
386 MARRIAGE LAW
auctoribus traditas." These rules were taken from the
moralists,13 but they are no longer necessary, for the
Code says that private and secret renewal by the party
conscious of the impediment is sufficient, provided, of
course, the consent of the other continues. This is the
logical consequence of the theory now adopted by the
Code that the renewal of the consent is required by ec-
clesiastical law only, and is, practically speaking, a bene-
ficial ruling.
marriage null for want of consent
Can. i i 36
§ 1. Matrimonium irritum ob defectum consensus
convalidatur, si pars quae non consenserat, iam consen-
tiat, dummodo consensus ab altera parte praestitus per-
severet
§ 9. Si defect us consensus fuerit mere internus, satis
est ut pars quae non consenserat, interius consentiat.
§ 3. Si fuerit etiam externus, necesse est consensum
etiam exterius manifestare, vel forma iure praescripta,
si defectus fuerit publicus, vel alio modo privato et sc-
creto, si fuerit occultus.
A marriage invalid for lack of consent is validated if
the party who had not consented, does consent, pro-
vided the consent given by the other party continues.
If the want of consent was merely internal, it suffices
that the party who did not give his consent give it now in-
teriorly.
If the want of consent was also external, it is necessary
that the consent be manifested outwardly; and this out-
ward manifestation must be done in the form prescribed
by law if the want of consent was public, whereas a pri-
18 Cfr. Sabetti, Thcol. Moral., ed. 1917, p. 955, n. 929.
oogle
, %\^ Original from
UNIVERSITY OF WISCONSIN
CANON 1 136 387
vate and secret manifestation suffices if the defect was oc-
cult
We will quote an instruction of the Holy Office1*
which illustrates these three sections. Protestants (Cal-
vinists) in Transylvania (Hungary) believed in the dis-
solubility of marriage and married with that intention.
This gave rise to difficulties, which were solved as fol-
lows:
(1) If James, a Calvinist, had the intention of marry-
ing Gemma, a Catholic, under the express condition of
the dissolubility of marriage, and the want of consent was
only interior, or manifested to Gemma alone, he had only
to renew the consent in order to revalidate the marriage,
because his consent was defective on account of a con-
dition appended interiorly, but affecting the substance of
marriage. This is still more the case if fear or intrinsic
repugnance would have nullified the internal consent.
(2) But suppose James and Gemma were both Cal-
vinists when they married ; that the minister preached
the wedding sermon on Math. 19, 9, instructing them
that adultery would give them the right to divorce, and
that they should have the intention of marrying according
to the laws of the country which easily admit divorce;
and both parties would marry according to this intention.
A marriage contracted with such an explicit condition
would be invalid. And here the distinction set forth in
§ 3 applies: If the defect was externally manifested
and made known to others, which certainly would be the
case here, with the supposition mentioned, because the
congregation gathered at the wedding and the magistrates
would know of the condition, then the marriage of James
and Gemma would have to be contracted in the form
prescribed by the Church (supposing they became con-
14 S. 0., April 6, 1843 {Coll, n. 965),
< ',AnnL' Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
■
pi
388 MARRIAGE LAW
verts) ; if, however, the want of consent was occult, be-
cause they married privately without telling anybody of
the condition attached, the consent may be renewed pri-
vately and in secret. However, in that case it would be
necessary to observe the following rule.
marriage null for want of the required form
Can. 1 137
Matrimonium nullum ob defectum formae, ut vali-
dum fiat, contrahi denuo debet legitima forma.
A marriage null for want of form, to become valid,
must be contracted again according to the prescribed
form.
Therefore, if James became a Catholic and Gemma
remained a Protestant, the marriage would have to be
contracted again before the Catholic pastor and two wit-
nesses."
The same rule holds if two Catholic parties were mar-
ried without observing the prescribed form. And from
this condition a dispensation is granted only for very
particular reasons, e.g., if many marriages are to be vali-
dated which for reasons of persecution or disturbed con-
ditions,18 were contracted privately. In this case can.
1098 may also be applied.
15 Utter of Piut VIII, of March ia To the Vicar Apoatolic of
35, 1830; Secret. Sums, March 27, Oceania, S. O., April 6, 1843 'Coll.,
1B30 (Coll., n. 8u). n. 965),
oogle
Original from
UNIVERSITY OF WI5CON5I
CANON i r 38 389
ART. II
revalidation in radice
nature of the sanatio
Can. 1 1 38
§ 1. Matrimonii in radice sanatio est eiusdem con-
validatio, secumferens, praetcr dispensationem vel ces-
sationem impediment!, dispcnsationem a lege de reno-
vando consensu, et retrotractionem, per Actionem iuris,
circa effectus canonicos, ad praeteritum.
§ a. Convalidatio fit a momento concessions gratiae ;
retrotractio vero intelligitur facta ad matrimonii ini-
tium, nisi aliud expresse caveator.
§3. Dispensatio a lege de renovando consensu con-
cedi etiam potest vel una tantum vcl utraque parte
inscia.
§ 1. The sanatio of a marriage in radice is its revali-
dation, implying besides a dispensation from, or the
cessation of, the impediment, the dispensation from the
(ecclesiastical) obligation of renewing the consent, and,
by a fiction of law, retroaction as regards the canonical
effects.
§ 2. Revalidation takes place at the moment the favor is
granted ; the retroaction is understood to reach back to
the moment of the marriage, unless the contrary be stated.
§ 3. The dispensation from the obligation of renewing
the consent may be granted without the knowledge of
one or of either party.
A case proposed to the S. C. Poenitentiaria may illus-
trate the text.17 James and Gemma married legally in
17 Anal. Bed., 1900, t VIII, p. 305 i.
Gi Original from
UOglt UNIVERSITY OF WISCONSIN
390 MARRIAGE LAW
1867, in the diocese of Paris, but James proved a bad
husband, wherefore Gemma, after having obtained a civil
divorce, went to Switzerland and before the civil mag-
istrate married John, a nominal Catholic, in 1872. After
some years James died and Gemma endeavored to induce
John to renew the consent before the Church authorities,
but he refused, declaring that the civil marriage was
sufficient for him. Nothing was left for the woman to
do but to ask for a sanatio in radke. This was granted
by the aforesaid tribunal, April 25, 1890, with the signifi-
cant clause, however, that the offspring born from adul-
tery should not be benefitted by the legitimation. Hence
the offspring born to Gemma and John whilst James was
still alive, was not declared legitimate. But all children
born after James' death, say 1875, to the year 1890,
shared in the canonical effects of the sanatio.
Here we have: (a) a removal of the impediment, which
is one of the natural law, vis., that of the marriage tie
(ligaminis). This ceased by the death of James, in 1875.
Thus also may a dispensation remove an impediment
which the ecclesiastical law has established, supposing,
of course, the Holy See is wont to grant it.
(b) There is also a dispensation from the renewal of
the consent, which John flatly refused to give. Here
again note the fact that the renewal of the consent is
required not by the natural, but by an ecclesiastical law,
from which, therefore, the Church, as in matters subject
to her dominion, may dispense, provided, of course, as
will be seen under can. 1140, that this consent was really
a marital consent and that it continues.
■
(c) Finally there is the retroaction as regards canonical
effects. These extend to the moment the marriage was
invalidly contracted. But our case is a peculiar one,
which is the reason why we chose it. We have not a
1 Qriginalfrom
1 K H >gie UNIVERSITY OF WISCONSIN
CANON 1 138
39i
complete and absolute sanatio, otherwise its effects would
reach back to the year 1872, when Gemma married
John, whereas the sacred tribunal extended the effects of
the sanatio only to the time when James died, or, as we
presumed, to the year 1875. If there had been only an
ecclesiastical impediment between James and Gemma,
and no second marriage, the effects of the sanatio would
have reached back to 1868. The effects of revalidation
then are: dispensation from an impediment of ecclesias-
tical law, validity of the marriage, and legitimation of
the offspring.18
§ 2 determines the moment from which the marriage
is revalidated. It is the moment when the favor has been
granted — a die datae, and not the date of the execution
of the rescript. For a genuine sanatio does not require a
renewal of the consent, but depends entirely upon the
free will of the grantor. But note that the grantor does
not say — as some have foolishly understood — that the
marriage is valid from the moment it was contracted. To
impute such an impossible and ridiculous assertion or
supposition to the Roman Congregation and tribunals
is more than common sense can tolerate. Therefore the
validity of the marriage once invalidly contracted, begins
the moment — ex nunc — the Cardinal Prefect puts his
signature to the decree of revalidation. Entirely different
from this genuine assertion is the other that the law feigns
or assumes by a Actio iuris the validity of the marriage
from the time it was first, though invalidly, contracted.
For this fiction, as in civil law, almost exclusively con-
cerns the legal effects of the legitimation of offspring.
Concerning these the sanatio works ex tunc, i.e., from the
iSCfr. can. 1116 f. Bnt car-
dinals and bishops would be ex-
cepted from the effects on account
of the " convali datum " in can.
1116, which is the general term also
for sano'.io in radice.
n'C
Original from
UNIVERSITY OF WISCONSIN
■
392 MARRIAGE LAW
moment of the first celebration. But the Code adds:
u Unless otherwise expressly provided." Thus we see
in the decision of the S. Poenitentiaria quoted above that
the adulterine offspring was expressly excluded.
§ 3 mentions the extent of ignorance, saying that a
dispensation from the renewal of the consent may be given
if both parties are unconscious of the existence of the
impediment, nay of the fact that a sanatio was given.
For not only the parties themselves, but Ordinaries and
confessors may ask for such a dispensation. Thus many
such dispensations were given for France after the revolu-
tion, for the diocese of Treves, and for Japan."
when a sanatio in radice is possible
Can. 1 1 39
§ 1. Quodlibet matrimonium ink urn cum utriusquc
partis consensu r.aturaliter sufficiente, sed iuridice in-
efficaci ob dirimens impedimentum iuris ecclesiastici
vel ob defectum legitimae format, potest in radice sa-
nari, dummodo consensus perseveret.
§ 2. Matrimonium vero contracture cum impedi-
ment© iuris naturalis vel divini, etiamsi postea impedi-
mentum cessaverit, Ecclesia non sanat in radice, ne a
momento quidem cessationis impediment!.
§ 1. Any marriage contracted in spite of an impedi-
ment of ecclesiastical law, or for lack of the legal form,
may be revalidated in radice, provided a naturally suffi-
cient, though juridically ineffective consent was given and
continues.
Case: Gemma, not baptized but held to be a Catholic
if Piui VII, Aug. 14, 180 1; Feb. 1830; S. 0., March n, 1868 (C#M.,
7, ■>■":: Piua VIII, March as, an. 811, 1326).
1830; Secret. Statui, March 27,
>Ie
,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1 1 39
393
by all, married James, a Catholic, in the form prescribed
by the Church. Afterwards she secretly approaches the
priest to whom she reveals her condition (of not being
baptized), demands Baptism immediately, which is con-
ferred, and asks that the secret be kept, especially to-
wards her husband.20 This marriage was revalidated,
because
(a) The impediment (disparity of worship) was of
ecclesiastical law, purely ;
(b) The consent was given as for marriage, which is
evident from the fact that the parties were married in
church, and it continues, for she asks for Baptism ;
(c) The consent was juridically ineffective, because the
impediment rendered it impossible for it to produce the
marriage union. Of course a merely fornicarious con-
sent could not be looked upon as a marital consent. Rut
that a consent was fornicarious if the semblance of mar-
riage was observed, would require strong proof. It
would not be enough that the party would like to get a
divorce, or that one of them asked for a decree of sep-
aration. But if one of them, or both, would obtain a de-
cree of separation under the plea of nullity, the sem-
blance of a marriage could hardly be upheld.21
§ 2. A marriage contracted with an impediment of the
natural or divine law, even if tlie impediment afterzvards
disappears, the Church does not revalidate in radice, not
even from the moment the impediment Itas ceased.
Card. Gasparri refers to a case solved by the Holy
Office.22 James (a non-Catholic) lived in concubinage
for five years, until 1898, when he contracted a civil
20 S. O., Aug. 22, 1906 ad IV
(Covington; cfr. Anal. Ecel., t XV,
P- 8 f.).
aiWcmt, /. ft, IV. VoL a. p.
566, n. 65*
S3 March 8, 1900 {Coll.. n. J078);
more general, S. O., March a, 1904
(Celt., n. 2 188).
oogle
Original from
UNIVERSITY OF WISCONSIN
394 MARRIAGE LAW
marriage with his concubine. Two children were born
before that date, and one of them died soon after birth,
March 29, 1896. James had, in 1896, to undergo an
operation, which rendered him completely impotent."
Internal marital consent, and, after 1898, also the sem-
blance and species of marriage seemed to exist and con-
tinue. The Holy Office decided that no revalidation in
radice was possible because the natural impediment of
impotence was in the way. To inquire further into the
wherefor would conjure up the controversy concerning
the necessity of the renewal of consent. But we can-
not help observing that the answer of the S. Poenit. of
April 25, 1890, alleged above, seems to be contrary to
can. 1 139, § 2, at least tn its general wording: " Ecdesia
non sanat." We understood that decision as a partial
but true sanatio.24
when renewal of consent is impossible
Can. i 140
§ 1. Si in utraque vel alterutra parte deficiat consen-
sus, matrimonium nequit sanari in radice, sive con-
sensus ab initio defucrit, sive ab initio praestitus,
postea fuerit revocatus.
§ 2. Quod si consensus ab initio quidem defuerit, sed
postea praestitus fuerit, sanatio concedi potest a mo-
mento praestiti consensus.
§ 1. If the consent of one or both parties is wanting,
the marriage cannot be revalidated in radice, regardless
28 Both testicles were removed tome extent, but it wu invalid
{utroque lestt). from the moment the impedimentumi
24 Wernz, I. c, IV, Vol. a, p. ligaminis ceased, which is denied
361, a. 637, perceWcd the difficulty, by our canon. No wonder the de-
and tried to solve it by the expe- cision of the S. Poenit is not
dient that the tanatio was impro- quoted by Card. Gasparri
fria ct relativa, which is true to
ogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1140 395
of whether the consent was wanting from the beginning,
or was given at the beginning and afterwards with-
drawn.
§ 2. If the consent was wanting in the beginning, but
given later, the sanatio may be granted from the moment
the consent was given.
The Bishop of Covington had asked the Holy Office for
an explanation concerning the faculties granted to the
bishops of the U. S. : May the faculty of revalidating
a marriage in radice be applied if both parties know of
the nullity of the marriage, but one of them cannot be in-
duced to renew the consent, and if both parties are un-
conscious of the nullity of their marriage, provided one of
them is afterwards informed of the sanatio and its effect?
The answer to the first question was : Negative, unless
it is evident that a true consent was given under the spe-
cies of matrimony and that this consent continues on both
sides. The answer to the second question was merely:
Negatwe.2* From this it appears that a positive remon-
strance against the renewal of the consent amounts to an
interruption of the same. Note the phrase, species matri-
monii, which may be verified, not only when marriage is
contracted with due regard to the ecclesiastical form,
but also when the conditions of a true marriage are
verified; in other words, when the consent given was
a truly marital one, and both parties were regarded as
husband and wife.28 It is difficult to understand how
James and Gemma may have a true marital consent,
though both are aware of the nullity of their marriage.
But we suppose they are either unaware of the effect of an
invalidating impediment, or are not convinced of the
« S. O., Aug. 23, 1906 {Anal. Syn. Dioec, XIII, ao, 8; Id.,
Bed., t. XV, p. 8). Quaestienes Canonical, Quaestio
asS. 0., Dee. 9* i&74 ad 18 174.
(Coll., d. 14a?): Bened. XIV, D*
§le
Original fro ni
UNIVERSITY OF WISCONSIN
396 MARRIAGE LAW
reality of that effect, or do not believe in the power of
the Church to establish impediments." Faulty education
or lack of opportunity for gathering information may also
be a cause of ignorance. But be this as it may, a marital
consent must be supposed and must precede, otherwise no
sanatio is possible, for what does not exist cannot be
revived. Wherefore, as § 2 says, revalidation reaches
back only to the moment when the marital consent was
given.
BY WHOM A SANATIO MAY BE GRANTED
■
Can. 1141
Sanatio in radice concedx unice potest ab Apostolic*
Sede.
A sanatio in radice may be granted only by the Apos-
tolic See. No direct traces of this power are extant
before the fourteenth century. Boniface VIII seems
to have been the first pope who granted such a dispensa-
tion. After the Council of Trent the practice became
more frequent, especially in countries (France, Japan,
etc.) with turbulent conditions."
Although this power is reserved to the Pope, he may
and does communicate it to others. Our Ordinaries have
it in virtue of the decree of the S. C. Consistorialis of
April 25, 1918, which says that they may revalidate mar-
riages invalidly contracted on account of a minor diri-
ment impediment." A decree of the S. C. Consistorialis,
of Aug. 2, 1918, extends this faculty to marriages invalidly
contracted ob impedimenta tnaiora*0 How long these
faculties will be continued (they were granted " praesen-
tis belli causa") is a question which we are unable to
answer; but see what is said under can. 1048.
X7 W'r: ;;-.. /. C, Vol. 1, p. $6j. » A. Af. S., X, 1 9» ff.
M Wenu, /. C„ IV, Vol a, p. 10 A. Ap. S., X, 363 f.
556 f.
oogle
k ,| , Original fro m
UNIVERSITY OF WISCONSIN
CHAPTER XII
second marriages
Can. i 142
Licet casta viduitas honorabilior sit, secundae ta-
men et ulteriores nuptiae validae et licitae sunt, firmo
praescripto can. 1069, § 2.
Can. 1 143
Mulier cui semel benedictio sollcmnis data sit, nc-
quit in subsequentibus nuptiis cam iterum accipere.
Although a chaste widowhood is more honorable, sec-
ond and further marriages are valid and lawful, pro-
vided the former marriage has been duly dissolved and
the free status proved.
A woman who has once received the solemn nuptial
blessing cannot receive it again.
In the first eight or nine centuries second marriages
were not favored. The Penitential Books ■ are rather
severe in meting out public penances for " bigamy," as
second marriage was called. There is a foundation for
this idea in Holy Writ,2 which, while it does not com-
mand, strongly counsels the faithful to abstain from a
second marriage because of the typical union between the
1 Wasserschleben, L c, pp. 148, doc. Ill, " Eius exemplo," Dec. 18,
179. etc. 1308) made it ■ command; some
2 Rom. 7, 3; 1 Cot. 7. 8, 39 early writers, like Irenaeus and
f: 1 Tim. 5, j ff. The Montantsts, Origcn. use rather strong Language
Novatians and Waldenses (cfr. In- against second marriage.
397
G I Originalfrom
008IL UNIVERSITY QFWI5C0NSIN
398 MARRIAGE LAW
Word of God and His Church. Therefore, also, a higher
degree of perfection was attributed to honorable widow-
hood. As to widowers, title 21 of book I of the De-
cretals debars them from the sacred ministry, and the
irregularity arising from bigamy is still a law.8 How-
ever, the former penalties have been omitted from the
Decretals, which permit second marriages, provided the
former marriage tie has been duly dissolved and its dis-
solution proved.4 No definite time is prescribed for
mourning by ecclesiastical law, as the Roman law 5 en-
joined and some modern civil codes* still maintain.
Can. 1 143, then, rules, in accordance with the Decre-
tals,7 that the solemn nuptial blessing is not to be imparted
to a widow — not a widower — who has received the
same in a former marriage. Note that what is here
forbidden is only the solemn nuptial blessing, which
is given during Mass (whether pro sponso et sponsa or
in the Mass of the Day) with the proper orations and spe-
cial prayers; not the blessing of the Roman Ritual.8
This solemn blessing may and should be imparted even
to a widow, if she has not received it at her first marriage,
even though she may be " in a family way." • For the
purpose of this blessing (a mere sacramental)10 is to
8 Cfr. can. 984. »S. C. P. F., July Bl, 1943 »d j
*C. a, X, IV, It; bow it ii (.Coll., n. 93a).
proved see under cinom 103 1 and 10 We hardly believe the itate-
|M
1069. ment to be correct (Leitner, J. ft,
6 Cod. VI, 40; Nov. 23, e. 43 f. p. 5*7, ed. 1) that the couple, if
0 The Swim Code, art. 103, re- they do not receive the nuptial
quires 300 days. blessing, are deprived of the
T Cc i, 3, X, IV, ai; for the graces flowing from the Sacrament.
-
Greeks alio Bened. XIV " Elsi The sacramental grace is attached
pestoralis," May 26, [-4a. ' to the Sacrament, and the latter
• S. C. P. v.. Sept. a 1, 1843 cannot be separated from the con-
{Coll, n. 97O; S. O., Aug. 31, tract. Hence, auppoaing there la no
1881 {Coll, n. 1557): S. Rit. C, obcr to the Sacrament, the grace ia
June 30. 189© ad VI (Decreta received by valid consent
Attth., o. 2933).
■.'
>Ic
fcrt|,-, Original from
UNIVERSITY OF WISCONSIN
CANON 1 143 399
convey, we might say in a tangible way, the necessary
graces for the fulfillment of a mother's most important
duties. It is for this reason also that the wife is chiefly
and peculiarly mentioned in those prayers.
Gi Original from
°°8,t UNIVERSITY OF WISCONSIN
N
■
MATRIMONIAL TRIALS
(Book IV, Title XX, Can. 1960-1992)
CHAPTER I
THE COMPETENT COURT
COMPETENCY OF THE CHURCH
Can. i960
Causae matrimoniales inter baptizatos iure proprio
et exclusivo ad iudiccm ecclesiasticum spectant.
Can. 1961
Causae de effectibus matrimonii mere civilibus, si
principaliter agantur, pertinent ad civilem magistratum
ad norm am can. 1016; sed si incidenter et accessorie,
possunt etiam a iudice ecclesiastico ex propria pote-
state cognosci ac denniri.
Matrimonial cases between baptized persons belong by
proper and exclusive right to the ecclesiastical judge.
Cases which concern merely the civil effects of mar-
riage, if these are the principal cause at issue, belong to
the civil court ; but if the civil effects are only incidental
and accessory, they may be taken cognizance of and set-
■
tied by the ecclesiastical judge in virtue of his inherent
power.
To what has been said under Can. 1016 little remains to
be added here. The settling of controversies concerning
400
* -w\iiL* Original from
lOOglt UNIVERSITY QFWI5C0NSIN
CANON 1960-1961 401
a given subject certainly belongs to him to whom the sub-
ject itself belongs. As Christian marriage is a strictly
sacred thing, a sacrament, matrimonial trials, because of
their intimate connection with the sacramental dignity,
must be brought before the ecclesiastical judge. For
" whatever in things human is of a sacred character,
whatever belongs either of its own nature or by reason
of the end to which it is referred, to the salvation of souls
or the worship of God, is subject to the power and judg-
ment of the Church." 1 This right belongs properly to
the Church because marriage between baptized persons
is properly called a sacred thing and the Church does
not borrow this authority from the civil power, but de-
rives it from her divine origin and constitution.2 It is
the exclusive right of the Church because what belongs
to her by divine institution she cannot let slip from her
jurisdiction, nor can she divide her power with another,
it being as indivisible as sovereignty. Of course, conflicts
may and do arise between the ecclesiastical and the civil
power, in as much as the one defends and upholds what
the other rejects and invalidates, in as much as the
civil power spurns and punishes what the Church blesses
and sanctifies, in as much as the State grants civil effects
to a union which is declared incapable of obtaining civil
and spiritual effects by the Church.8 Such conflicts arise
either from misunderstanding or failure to realize the
innate power of the Church. In itself such a contradic-
tion should be impossible, since God is the author of both
powers, human and divine.* By good will and mutual
confidence, and especially by the conclusion of treaties
founded on mutual trust and loyalty — not mere " scraps
iLeo Xni, "Immvrtalt Dti," I S. O., July 6, 1817 iCoU., i>.
No*, i, 1885 (Wynne, Great En- 725).
eycL, p. us). * Leo XIII, " immortal* Dti;'
a Trid., teas. 24, can. 12, de mot. I. c.
.'Ie
£ " ^ v J„ * Original from
UNIVERSITY OF WISCONSIN
402 MARRIAGE LAW
a
of paper " — such conflicts and misgivings can mostly be
avoided.
But the question arises: What is the duty of Catholic
magistrates and lawyers when they act as judges or at-
torneys in matrimonial cases which require a bill of di~
vorce? This question was settled by the Holy Office as
follows: Considering the serious circumstances of
things, times and places (in France), it may be tolerated
that civil magistrates and attorneys pronounce sentence
or defend in matrimonial cases, provided they openly
profess the Catholic doctrine (as proposed above), never
pronounce, solicit or provoke a sentence repugnant to di-
vine or ecclesiastical law, and in difficult cases have re-
course to their Ordinary or to the Apostolic Penitentiary.1
As was natural, French interpreters of this decision tried
to give it a most lenient construction. Hence the Holy
Office was again approached: Does a judge comply with
the condition set forth above if he mentally abstracts
from the validity of the marriage according to ecclesias-
tical laws and simply applies the civil law and pronounces
a divorce, though he firmly intends to break the union
only as far as civil effects and the civil contract are con-
cerned? In other words: Is a judge allowed to make
a mental restriction, which inwardly conforms to the doc-
trine and practice of the Church, but outwardly and in
fact contradicts the same? The answer of course was,
" No." 8 The same decision says that neither could the
mayor, under the same restriction, pronounce a divorce
if the marriage was ecclesiastically valid, nor allow the
6 S. O., June 25, 1&85 {Coll., n. from judging them. HoweYcr w*
1636). believe a Catholic judge would be
• S. O., May 37, 1886 (Coll., allowed to pronounce sentence on
I. <-.). Concerning marriages of such a marriage, because no
such *a are not under Catholic strictly prohibitive law now exists
jurisdiction, the Church abstains with regard to them.
sd by GoOgle
Original from
UNIVERSITY OF WISCONSIN
CANON 1960-1961 403
divorced party to remarry civilly. The consequence is
— also for Catholic judges and attorneys in the United
States and elsewhere — that they are never allowed to
pronounce a sentence of divorce upon a validly married
Catholic couple as long as the Church has not declared
their union invalid. If the ecclesiastical authorities have
rendered a verdict of invalidity, the civil judge may pro-
nounce sentence of divorce and a Catholic lawyer may
defend the case. The same rule applies to separation,
which also, according to Catholic doctrine and as ex-
pressly stated in the above mentioned decree of the Holy
Office, belongs to the Church. To the latter is further-
more reserved, at least a priori, the legitimacy of off-
spring.
Can. 1961 determines, first and above all, what the civil
magistrate may do. He may decide as to the civil ef-
fects of marriage, such as questions concerning property,
civil rank and name, inheritance and similar purely
worldly affairs.7 But the text says: si principaliter agan-
tur. This means that the civil effects, for instance, con-
cerning property, must be the main question at issue. If
the civil effects are concerned in a suit only incidentally
and accessorily, whilst the principal and main quarrel con-
cerns either the validity of the marriage, or separation, or
the legitimacy of the children, then the ecclesiastical
judge, in his capacity as such, is entitled to decide. For
the rule is that the accessory follows the principal.8 It
stands to reason, however, that the ecclesiastical judge
should either have his sentence ratified and sanctioned
by the civil court, or abstain entirely from passing judg-
ment upon civil matters, for the reason that he cannot
compel acknowledgment of his sentence by the civil court.
iCfr. cc. 1, 3, s, X. IV, 17 8 Reg. 43 in 6*: " Accitiorium
(hereditary quarrel*) ; cc. 5, 5, 7, naturam stqui congrvit principalis."
X, IV, ao (dowry).
od by GoOgle
I , Original from
UNIVERSITY OF WISCONSIN
■
404 MARRIAGE LAW
the roman court
Can. 1962
Causas matrimoniales ad eos spectantes de quibus in
can- 1SS7t § l* n- J» Dh Sacra Congregatio vcl illud Tri-
bunal aut specialis ca Commissio exclusive cognoscet,
cui eas toties quoties Summus Pontifex dclegaverit;
causas dispensationis super matrimonii) rato et non
consummate Sacra Congregatio de disciplina Sacra-
mentorum ; causas vero quae referuntur ad privilegium
Paul mum, Sacra Congregatio S. Officii.
Can. 1963
§ 1. Quare nullus iudex inferior potest processum in
causis dispensationis super rato instruere, nisi Sedes
Apostolica facultatem eidem fecerit.
§ 2. Si tamen iudex competens auctoritate propria
iudicium peregerit de matrimonio nullo ex capite im-
potentiae et ex eo, non impotentiae, sed nondum con-
summati matrimonii emerserit probatio, omnia acta ad
Sacram Congregationern transmittantur, quae iis uti
poterit ad sententiam super rato et non consummato
ferendam.
Leaving aside the first clause of can. 1962, which de-
crees that the matrimonial cases of sovereigns and their
lawful heirs are reserved to the Holy See,9 or to the S.
Congregation or a special Commission exclusively and
purposely assigned by the Pontiff, we note :
1. The competent Roman Court is the S. Congre-
gation of the Sacraments, whenever there is question of
dispensing from a ratified but not yet consummated mar-
<
• S. C. Sacr.. March 7. ioio (A. from diriment as well si probibi*
Ap. S., IX, 147): >U dispcBsatioos tire impediments are reserved.
.'le
Original fro m
UNIVERSITY OF WISCONSIN
CANON 1962-1963 405
riage. This court is so exclusively competent that, as can.
1963 rules, no inferior judge, hence no local Ordinary,
can institute a canonical trial in such cases unless the
Holy See has granted faculties for that purpose. Local
Ordinaries may receive this faculty from the Holy See
(S. C. Sacr.) either habitually or for single cases. But
it is not given by the decree " Proximo, sacra" April 25,
1918, nor by that of Aug. 25, 1918. And since the former
faculties have ceased, the Ordinaries must be expressly re-
invested with this faculty. When they receive the fac-
ulty from the Holy See. it may be well to look up can.
199, which says that jurisdictional power granted by the
Holy See may be subdelegated, unless it is granted for
personal reasons. If personal reasons are excluded, the
Ordinary may subdelegate the trial to another ecclesias-
tic.10
However, the local Ordinaries may indirectly be con-
cerned and empowered to institute a trial, which may lead
to a sentence of a dispensation from a ratified marriage.
This happens when a case of impotency, which the Or-
dinary is entitled to take cognizance of in virtue of his
own authority, is brought before him. If the physicians
and nurses and other witnesses required in that case are
unable to prove the existence of impotency, but merely the
fact that the marriage had not been consummated, the
minutes must be sent to the S. Congregation, which may
make use of the same to pass judgment concerning the
matrimonium ratnm non consummatum. The S. Congre-
gation may, iure proprio, i. e.t without special commission
10 If the Ordinary hu no facul- letter must be well sealed and not
lies, he may refer the case directly opened by the asent. who has
to the S. C. dei Sacramenti, Can- merely to forward it to the Secre-
rellaria Apostolica, Corso Vlttorio tary or the Card. Prefect of the S.
Gmmanuele, Roma, Italy. If he C. (S. C. Consist., Nov. 25, 1908;
rrndi the case to bis agent, tbe A. Ap. S., I, an).
►ogle
Original from
UNIVERSITY OF WISCONSIN
406 MARRIAGE LAW
from the Pope, transmit the case to the S. Romana Rota,
which shall investigate the fact of non-consummation.11
Of course, the S. R. Rota cannot grant a dispensation
super matrimonio ratof as this is strictly reserved to the S.
Congregation of the Sacraments. When sending in the
acta bearing on the factum non-consummationis, the Or-
dinary should add a petition based on canonical, or at
least solid, reasons why the dispensation is asked.12
2. The second Congregation mentioned in can. 1962 is
the Holy Office. But here only the Pauline Privilege is
concerned, whilst disparity of worship and mixed reli-
gion 18 are omitted. The reason for this omission is
that only the most exclusive matters are referred to in
our canon. Besides, as noted under can. 1121, § 2,
there is no question of a real dispensation in the matter of
the privilege of faith, but only of a declaration, and such
no Ordinary is allowed to give. Hence if there is a doubt
whether the interpellation must be made, recourse should
be had to the Holy Office.
the diocesan court
Can. 1964
In aliis causis matrimonialibus iudex competens est
iudex loci in quo matrimonium celebratum est aut in
quo pars conventa vel, si una sit acatholica, pars catho-
lica domicilium vel quasi-domicilium habet.
In other matrimonial cases the competent judge is the
judge of the respective place (or diocese) where the
marriage was celebrated, or where the defendant has his
domicile or quasi-domicile, or, if one of the parties is a
11 S. C. Con*., Jan. 28, 1909 19 S. O., Aug. 6, 1890, n. 7
{A. Ap. S.t I, 213). <CM P. F., n. 1737).
ll Cfr. c»n. 247, I 3-
jle
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 1964 407
non-Catholic, where the Catholic party has his or her
domicile or quasi-domicile.
The phrase " in other cases " signifies that trials of null-
ity arising either from one of the twelve diriment im-
pediments or from defective consent or non-observance
of the prescribed form, may all be brought before the local
ecclesiastical judge, who shall also hear cases concerning
the prohibitive impediments, separation, and legitimation
of offspring.
By the term judge is understood the Ordinary of the
diocese, because he is the iudex ordinarius of the place.1*
Ablates Nullius are not excluded from acting as judges
in matrimonial matters.10 The Vicar-General10 as well
as the Vicar-Capitular or Administrator are also entitled
to conduct such a trial. But inferior prelates, no matter
how many titles and insignia they may have, do not fall
under the category of Ordinaries and therefore have no
right to try such cases.
The question, who is the Ordinary, is settled by the
Code when it states the two reasons which decide compe-
tency. The first is the ratio contractus11 or the place
where the marriage was celebrated, because marriage is a
species of contract. This reason may be invoked at any
time, for the fact of having contracted marriage in a cer-
tain place remains. The second reason is the domicile of
the defendant or of the pars conventa, according to the
well-known axiom: "Actor sequitur forum rei." Equal
to the domicile in our case is the quasi-domicile, and no
preference may be claimed. Otherwise the wife gener-
14 Trid., km. 24, c. 20, it rtf. abbots from matrimonial trials; cfr.
10 Can. 323, C. 12, X, V, 31, Feije, J. c, n. 586, p. 474-
roentions abbots who usurped a 1 •'■■ Concerning the marriage of
power not their own, but they are conscience, see can. 1104.
not abbates nulliuj. Leitner, I. c, IT C. 20, X, II, 20.
p. 550, is wrong in excluding these
'le
Original from
UNIVERSITY OF V,'15CON5l
■
pi
408 MARRIAGE LAW
ally follows the forum or court of her husband according
to our Code.18 But the Instruction of 1883 makes a two-
fold exception, which is admitted, at least impliedly, by
the Code.19 If the husband and wife have been legiti-
mately separated, and the former wishes to petition for
annullment of the marriage, he must do so before the Or-
dinary in whose diocese the wife has her domicile or
quasi-domieile, because by a separation she regains or
obtains her own domicile. If the wife demands the an-
nullment, she must do so before the Ordinary in whose
diocese the husband has his domicile. Hence in case of
a separation the old principle holds: Actor sequitur
reumV The other exception is desertion. If the hus-
band maliciously deserts his wife, she may institute pro-
ceedings before the bishop in whose diocese she has her
domicile. But if she deserts her husband, she must fol-
low the court of the husband, or, in other words, apply
to the bishop in whose diocese the husband has his domi-
cile or quasi-domicile." Note that the monthly stay is
not mentioned here and may therefore not be applied.
As to mixed marriages — and this holds good of dis-
parity of worship as well as of mixed marriages properly
so-called — the Code states that the domicile or quasi-
domicile of the Catholic party decides who is the compe-
tent judge. Therefore the Ordinary in whose diocese the
Catholic party has a domicile, is also entitled to judge
concerning the free status of a heretical party who has
been divorced by a sentence of the civil court. But if the
non-Catholic party had been received into the Church, the
domicile of the husband would determine the competency
of the Ordinary."
18 Cfr. can. 93. 21 See Smith, Marriagr Process,
l» Inst. 1883 (Colt. P. F., n. p. S'-
1587), for the U. S. 22 S. O., June 30, 189* {Coll., a.
ao C£* cc. s, 8, X, II, a. 1799); June aj, 1903 {Anal. Ecct„
t, 11. 181).
jfe
w £ " ^ ^ *\r* Original from
UNIVERSITY OF WISCONSIN
CANON 1965 409
After the canonical or judicial citation has been served
on the parties, no change of domicile or quasi-domicile by
either of them shall in any way change the competency of
the judge so chosen or established.23 Hence, for instance,
though the parties, or one of them, would leave the diocese
of St. Joseph after having been duly summoned, and
reside in the diocese of Kansas City, the Ordinary of St.
Joseph would have to finish the trial in the first instance,
until a sentence were pronounced.
want of consent
Can. 1965
Si matrimonium accusatur ex defectu consensus, cu-
ret ante omnia iudex ut monitionibus opportunis par-
tem, cuius consensus deesse affirrnatur, ad consensum
renovandum inducat; si ex defectu formae substantialis
vel ex irnpedimento dirimenti quod dispensari potest
ct solct, partes inducers studeat ad consensum in forma
legitima renovandum vel ad dispensationcm petendam.
* The Code now exhorts the judge to endeavor to bring
about a peaceful settlement before legal procedure is in-
stituted. First, of course, he should ascertain the cause
of the dispute. If the point of dissension is lack of con-
sent, for instance, error, compulsion or fear, or conditional
consent, which causes the parties to have the marriage
declared invalid, the judge should try to induce the party
whose consent is asserted to have been deficient to renew
the same. For this purpose he may await a moment
when the parties are less excited and more favorably in-
clined toward each other.34 Besides, the scandal they
give may be held up to them, etc.
23 Instr. of i88j, n. ;. aluuius momenti rtfusionii bent-
M S. O . Dec 9, 1874 {.Coll., n. volentiae.
1437, ad. 18): opfortunitatt carta
C| , Original frorn
lOOglt UNIVERSITY OF WISCONSIN
-
410 MARRIAGE LAW
If the reason for having the marriage declared invalid
arises from want of the prescribed form or from a diri-
ment impediment from which a dispensation can be and
generally is granted, the judge should make every effort
to have the parties renew their consent in the form pre-
scribed or ask for the necessary dispensation. Of course,
if the form was not observed, the consent was invalid,
and must therefore be renewed in the presence of the
pastor or Ordinary or a delegated priest and two wit-
nesses. If the marriage was invalid, not by reason of
lack of form, but because of a diriment impediment,
the parties should be urged to ask for a dispensation. If
they are willing to do so, and the Ordinary has the faculty
to grant the same, it should be applied there and then.
If he has not the faculty, the parties must be told to wait
until it is obtained, and in the meanwhile to abstain from
conjugal intercourse. This would be the easiest way to
settle the case. If only one party knows of the impedi-
ment, the chapter on revalidation must be looked up. If
they insist upon an ecclesiastical trial, this must be con-
ducted according to the rules that follow.
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CHAPTER II
constitution of the tribunal
the judge
Can. 1966
Firmo praescripto can. 1576, ? 1, n. 1, unicus est iu-
dex instructor in inquisitione pro dispcnsatione super
matrimonio rato et hon consummate
With the sole exception of the matrintonium ratum et
non consummatum, which requires only one judge to con-
duct the investigation, a collegiate tribunal of three judges
must be set up for every matrimonial case or trial, and
no privilege or custom may be claimed to offset this
law.1 Henceforth every diocesan court should have a
board of three judges for matrimonial trials. They may
either be chosen for each case as it comes up for decision,
or elected for a certain term or tumus from the synodal
judges, *. e.t those chosen at the synod.8 The reason for
constituting a collegiate tribunal is evidently to be sought
in greater efficiency and impartiality and in the serious-
ness of the matter., How these judges are to proceed
is explained in can. 205-207.* We will only mention that
they must act as a body and no one is allowed to decide
the case without the co-operation of the others.
1 Thua can. 1576, I I, n. I, which wod's translation — but all. erCB
simply says cousat matrimonii, ma- those of simple separation.
trinionial cases, not only such as 2 Can. 1576, I 4.
touch the marriage tie — as one a C. ao, X, I, ao.
might be led to infer from Woy- * See Vol. II, p. 185 ff.
411
jle
Original from
UNIVERSITY OF WISCONSIN
p
412 MARRIAGE LAW
the defensor vinculi
Can. 1967
Sivc agatur dc nullitate matrimonii, sive dc proban-
dis inconsumrnationc et causis ad dispensandum super
rato, citari debet defensor vinculi matriraonialis, ad
norrnam can. 1586.
Each diocese must have a defensor irinculi, who should
be summoned in cases which concern either the nullity of
a marriage or the gathering of proofs for non-consumma-
tion and dispensation from a marriage ratified but not con-
summated. This rule had been inculcated by Benedict
XIV, who emphatically insisted on such a defender being
chosen by the Ordinary of each diocese. His qualities
are described in the same Constitution. He must be well
versed in the law and of acknowledged probity. The
bishop may remove him and appoint another in his place
if he is prevented from taking charge of any case.5 The
defensor must make oath into the hands of the bishop to
perform his duties faithfully, but this need be done only
once, namely, when he enters upon his office.8
duties of the defensor vtncuu
Can. 1968
Defensor is vinculi est: 4
i.° Examini partium, testium et peritorum adesse;
exhibere iudici interrogatoria clausa et obsignata, in
actu examinis a iudice aperienda, et partibus aut testi-
bus proponenda; novas interrogationes, ab examine
emergentes, iudici su ggerere ;
8 "Dti mUirationt," Nov. 3, 1741* 1683, a. 10, require* that the oath
I 6; see can. 1589, b« given by touching the book of
8 Can. 364. The Instruction of the Gospels.
>Ie
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
—
CANON ig6g 413
2.0 Articulos a partibus propositus pcrpcndere, eis-
quc, quatenus opus sit, contradiccrc ; documents a
partibus exhibit a rccognosccre ;
3.0 Animadversiones contra matrimonii nullitatem
ac probationcs pro validitate aut pro consummationc
matrimonii scribere et allegare, eaque omnia deducere,
quae ad matrimonium tucndum utilia ccnsuerit.
1. It is the duty of the defensor vinculi to be present at
the examination of the parties* witnesses, and experts ; to
present to the judges in a closed and sealed envelope the
questions to be opened by them in the act of examina-
tion, and to be proposed to the parties and witnesses ; and
to suggest to the judges new questions which may arise
from the cross-examination.
2. He has to weigh the arguments proposed by the
parties, and if necessary to contradict them, and to re-
view the papers offered.
3. He is to set down in writing and to point out ob-
servations against the nullity of the marriage and in
favor of its validity or consummation, and in general
to make use of all lawful means which he deems con-
ducive for the defence of the marriage bond.
rights of the defensor vinculi
Can. 1969
Defensor! vinculi ius esto:
i.° Semper et quolibet causae momento acta proces-
sus, etsi nondum pub! icat i, invisere ; novos terminos ad
scripta perficienda flagitare, prudenti iudicis arbitrio
proro ga ndos ;
a.° De omnibus probationibus vel allegationibus ita
certiorem fieri, ut con tradicendi facultate uti possit ;
d by GoOgle
I , Original fro ni
UNIVERSITY OF WISCONSIN
414 MARRIAGE LAW
3.0 Pcterc ut alii testes inducantur vel iidem iter urn
examini subiiciantur, processu etiam absoluto vel pu-
blicato, novasque animadversiones edere;
4.0 Exigere ut alia acta, quae ipse suggesserit, con-
Bciantur, nisi tribunal unanimi suffragio dissentiat
1. He is entitled to inspect, at any stage of the pro-
ceedings, the minutes of the trial, even though they have
not yet been published, and to demand prorogation, which
is to be granted according to the discretion of the judge,
in order to complete his records.
2. He is entitled to be informed of all the proofs and
allegations made, in order to be able to contradict them.
3. He may demand that new witnesses be introduced,
or that such as have already been on the witness-stand
be re-examined, even though the minutes of the trial have
been completed and published ; and he may also make new
observations.
4. Finally he may demand that other acts, suggested by
himself, be drawn up, unless the tribunal by a unanimous
vote objects to this demand.
It is necessary to add that the defender must be
summoned to all judicial proceedings and sessions of the
court, otherwise there is danger of the acts being null
and void.7 How carefully everything should be observed
that pertains to the office and rights of the defender, is
apparent from many cases decided in Rome. In one in-
stance * the acts were attacked and had to be revalidated
on several points because the defender had not delivered
to the judge or notary the points of examination in a
closed and sealed envelope, had omitted to summon some
witnesses in order to testify to the relationship of the
T S. C. G, Aug. 32, 1840 (CoH. I S. C. C. VentimiL, Mty, 1888
P. F., n. 911); Instruction of 188], {A. S. S., t. SI, 162 ff.).
0. 10.
ogle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 1969
415
septimae manus, and was absent when the witnesses were
examined. It is therefore required that the acts should
contain all the minutes as described above, duly examined
and approved by the defender, that he was never absent
from any session, or if he was absent, that he afterwards
took cognizance of all the proceedings.8
0 Instruction of 1883. 11. it. In- A. S. S. and AntUcta EeeUsiasticm,
structive for defenders are the cases as well as the Regulat servmndtt in
contained in the Thesaurus S. C. judiciis af>u<j S. Rom. Rolo* Tri-
C.t alio the cases published in the bunal in A. Ap. S., II, 781 ff.
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
Q
|M
CHAPTER III
who may attack marriages and ask for a dispensa-
tion from a ratified marriage
Can. 1970
Tribunal collegiale nullam causam matrimonialem
cogno9cere vel definire potest, nisi regularis accusatio
vel iurc facta petitio pracccsscrit.
The board of judges cannot take cognizance of, nor
decide, any matrimonial case, unless a regular accusation
or a legal petition has preceded.
What a " regular accusation " means is determined in
the following canon, which specifies the persons who are
capable of " accusing " a marriage. A legal or lawfully
drawn up petition would imply persons capable of peti-
tioning.1 However, since a petition implies the grant of
a favor, it is evident that the petitioner should be capable
of making and accepting the petition, and that it be ad-
dressed to the proper authority. Thus in case of a mixed
marriage the Catholic party must make the petition and
send it to the bishop or vicar-general or chancellor of the
diocese in which the petitioner has his domicile or quasi-
domicile.
who may be plaintiff
Can. 1971
§ 1. Habiles ad accusandum sunt:
i.° Coniuges, in omnibus causis separationis et nul-
litatis, nisi ipsi fuerint impedimenti causa ;
1 Instruction of 1883. »• 3- Per" the same idea: the Hbttlu* KHs or
haps the two terms convey one and writ of petition.
416
GoogI
Original from
UNIVERSITY OF WISCONSIN
CANON 1971 417
2.0 Promo tor iustitiae in impediment is natura sua
publicis.
§ a. Reliqui omnes, etsi consanguinei, non habent ius
matrimonia accusandi, sed tantummodo nullitatem
matrimonii Ordinario vel promotori iustitiae dcnun-
tiandi.
The parties, therefore, should -draw up a short and
clear statement setting forth the reasons why they wish
to have the marriage declared invalid, together with a
request that it be declared null and void. They may
make this petition orally before the court, whose secre-
tary has to put it down in writing. But the petition may
also be filed for separation only, which is a process es-
sentially distinct from that aiming at a declaration of nul-
lity. Canon 197 1 establishes who may be plaintiff,
i.e., ask for a bill of separation or divorce by having the
marriage declared invalid.
I. And first, either one or both of the contracting part-
ies may present the bill to the episcopal court. The part-
ies alone are admitted to attack their marriage on the
ground of defective consent, whether this defect be caused
by violence and fear, or error, or lack of will, or unful-
filled conditions.8 If one party alone is conscious of de-
fective consent, that party alone can lawfully present the
petition. Concerning impotency, too, the only competent
plaintiffs are the parties themselves, because they alone
can know the fact and they alone are interested in the
matter.8 The Code, however, does not limit the parties'
right to these cases. Hence any impediment which was,
without their own fault, placed in the way to their lawful
union may be used as a reason for impugning it.
2 Instruction of 1883. n. 36. 8 Ibid., n. 46 (Coll., Vol. II, p.
179).
( *r\nnl*> Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
418 MARRIAGE LAW
The text says: "nisi ipsi fuerint impediment causa."
What this means is not clear. A causa may be either ef-
ficient, or final, or formal, etc. It is evident that the
formal cause of an impediment is the law, either divine
or human. A final cause can hardly be assigned in this
connection, for it would be setting up an impediment to
hinder a matrimonial union. Hence nothing else is left
but the efficient cause. In other words, either one or both
of the parties may have caused or produced the impedi-
ment. This may have been done either maliciously or
without malice, sinfully or without sin. In the line of the
twelve impediments, a sinful cause would be found only
in rape, crime, and public honesty, because these three are
really founded on unlawful actions due to human agency.
There might also be question of a cause, though a purely
material one, in cases of mixed religion and spiritual re-
lationship. For the impediments of disparity of worship
and mixed religion (though the latter is only prohibi-
tive) arise from a union between two persons whom the
Church has declared incapable of contracting marriage.
Spiritual relationship exists between the parties if one was
sponsor to the other, which may happen when one is bap-
tized shortly before marriage* We believe the inten-
tion of the lawgiver was to restrict that cause to a ma-
licious or sinful, or at least deceitful action. In that case
it would be merely an application of the well-known
axiom that no one should be benefitted by a fraudulent
act committed by himself (" fraus sua nemini patroeinari
debet") B
2. Besides the parties themselves, the promotor iustitiae
or prosecuting attorney of the diocesan court may attack
4 We know of a ease where a did not touch hi* godchild physi-
priest, by sheer distraction, asked caily and hence contracted no reU-
the bridegroom to be sponsor for tionship.
his bride. But luckily the former S C. 15. X, I, 3.
ioi >gle
(^ ^ ^ ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1971 419
a marriage because of impediments which are by nature
public. Can. 1037 defines an impediment to be public
when it can be proved in court. With the exception per-
haps of impotency and crime, all the impediments are
more or less of a public character. For certainly age,
ligamen, consanguinity, affinity, spiritual and legal rela-
tionship, religious profession, sacred orders can be proved
by documents, and public honesty presupposes notoriety.
As to mixed religion there may be a real doubt, because
the baptismal records of non-Catholic denominations are
often carelessly kept. We said with the exception per-
haps of impotency and crime, for even impotency might
become known and proved, especially in case of castrated
males and eunuchs. Yet since the Instruction of 1883
seems to exclude in cases of impotency all but the parties
themselves, we hardly believe that the promo tor iustittae
would have to proceed against them ex officio.*1 As to
crime, a different view must be taken, because not only is
this impediment of a public character, but the crime itself
is directed against the public welfare. Hence if the at-
torney should have strong indications as to the existence
of a crime, and especially if there were a rumor point-
ing to the existence of that impediment, he would have to
order further, but cautious, investigation to be made, un-
til the truth would appear or the doubt disappear/
3. All others, even blood relations, have no right to at-
tack a marriage, though they may denounce the nullity of
a marriage to the Ordinary or promoter of justice. Who
are these " reliqui omnes"? In the first place the rela-
tives of the couple, because they are supposed to know
better than outsiders of the existence of an impediment.8
• For inst., male singers of an T Instruction of 1863, n. 3.
Advanced age with a soprano or alto 8 C. 2, C. 35, q. 6; c. 3, X. IV,
voice cannot bat be suspected; cfr. iS.
Bened. XIV, Da Syn. Diotc, XI,
7. *•
oogl
Original from
UNIVERSITY OF WISCONSIN
420 MARRIAGE LAW
Besides these, every Catholic is allowed to " denounce " —
not "accuse" — the nullity of a marriage. From this
privilege no one is excluded. Hence the old law B which
excluded from the right of denouncing such as acted from
dishonest motives or had wilfully neglected denunciation
at the time the banns were published, must be corrected.
accusation post mortem
Can. 1972
Matrimonium, quod, utroque coniuge vivente, non
fuerit accusatum, post mortem alterutrius vel utrius-
que coniugis ita praesumitur validum f uisse, ut contra
banc praesumptionem non admittatur probatio, nisi
incidentcr oriatur quacstio.
A marriage not " accused " during the life-time of both
parties is after the death of either one or both presumed
to have been valid, and against this presumption no
proof is admitted, except as an incidental question or side-
issue. The chief reason for this canon is to protect the
legitimacy and hereditary rights of the offspring. Be-
sides, it seems improper 10 to admit one to accusation after
the death of a party who may be innocently slandered.
Hence the S. Congregation could confidently assert in
1842 that never before had an accusation against the
a
validity of a marriage been admitted after the death of
one of the parties.11 The reasons for such post mortem
trials are generally to be sought in personal interests and
material gain accruing from inheritance. However, says
our text, if the question was raised incidentally, it might
be admitted. Thus if the principal question or point
SCfr. X, IV, 18. 30, Dec. 3. 173$ (Richter, Trid., p.
10C. 7. X. XV, 17. 378. n. 134; o. US).
llS. C. C, Sept. 17. 184J; July
Go >gle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1972 421
would be the legitimacy of the offspring, the next or inci-
dental question would be the validity of the marriage.1'
But it may be added that the conjectural proofs for the
validity of a marriage which is dissolved by death and im-
pugned by some near relative after the death "of one party,
are readily admitted, especially if not the marriage tie
itself, but its consequences are at issue.1
13
Can. 1973
Soli coniuges ius habent petendi dispensationem su-
per matrimonio rato et non consummate.
The married parties alone have the right to petition
for a dispensation from a marriage ratified but not con-
summated.1*
U Cfr. c. 7, X, rv, 17. M Of course the petition may be
18 S. C. G, Barcin., Dec. 16, made by others, but it must be
1893 (A. S. S.t t. a6t 407 ff.) — a made in the name of the parlies
very interesting case for defenders. and at their request
I Originalfrom
■OOUIL UNIVERSITY OF WISCONSIN
■
pi
CHAPTER IV
LEGAL PROCEEDINGS
ARTICLE I
witnesses
Can. 1974
Consanguinci ct affines dc quibus in can. 1757, § 3,
n. 3, habentur testes habiles in causis suorum propin-
quorum.
Blood relations and afhnes, although otherwise ex-
cluded, may be admitted as witnesses in matrimonial cases
of their kin, because these, as a Palea of the Decree says,1
know their genealogy or pedigree better than strangers.
testimonium septimae manus
Can. 1975
§ 1. In causis impotentiae vel inconsummationis, nisi
de impotentia vel inconsumrnatione aliunde certo con-
stet, debet uterque coniux testes, qui septimae manus
audiunt, inducere, sanguine aut affinitate sibi coniunc-
tos. sin minus vicinos bonae famae, aut alioquin de re
edoctos, qui iurare possint de ipsorum coniugum pro-
bitate, et praesertim de veracitate circa rem in con-
troversiam deductam; quibus iudex ad normana can.
1759, § 3, alios testes potest ex officio adiungere.
§ 2. Testimonium septimae manus est argumentum
1 C •, c. 35. q. 6; cc. 5. ". x, 11, *>; c. 3, X, IV, 17.
422
* I i\<uil<* Original from
,00cVC UNIVERSITY OF WISCONSIN
CANON 1975 423
credibilitatis quod robur addit depositionibus coniu-
gum; sed vim plenae probationis non obtinet, nisi aliis
adminiculis aut argumentis fulciatur.
In cases of impotency or non-consummation, unless the
facts are ascertained from other sources, each of the par-
tics must produce witnesses, called of the seventh hand
{septimae manus), who are related to the parties by blood
or affinity, or at least neighbors of good reputation, or
otherwise well-informed persons, who will testify under
oath to the probity of the parties and their truthfulness
concerning the controverted matter. To these the judge
may ex officio add other witnesses. This testimony of
the septima tnonus is a proof of credibility which adds
weight to the deposition of the consorts, but it has not
the force of full proof unless it is supported by other cir-
cumstances or arguments.
The septimae tnanus proof is of Germanic origin. It
was adopted by Gratian 2 and by the Decretals.3 It means
that the husband should bring forward seven persons of
either sex, and any age or condition, if possible of his own
kin, who arc acquainted with his character, actions, and
conduct. In the same manner the wife should present
seven relatives, friends, or acquaintances. Thus four-
teen persons, after having been duly sworn, testify to
the trustworthiness and truthfulness of the married cou-
ple. But they cannot directly testify to the non-consum-
mation of the marriage, although some indirect state-
ments may be elicited from them. Thus they may be
asked whether the couple lived together affectionately,
whether there were quarrels, whether medicine was used
to cure impotency or a physician was consulted.4
1 C. 2, C 33, q. 1, la from a let- aCfr. cc 5, 7, X, IV, 15.
tcr of Greg. I, but the text has the 4?nstructie Orient., tit VI, art,
interpolation of sepHmat manus. 5 (.Coll., xu 15S8).
'le
Original fro m
UNIVERSITY OF WISCONSIN
424 MARRIAGE LAW
But all these testimonies do not afford full proof unless
they are supported by other evidence. Such an aid (ad-
miniculum) or support would be found in the supple-
mentary oath of the woman testifying to non-consumma-
tion.8 But a relatively surer way is that proposed in the
following canons. We say relatively surer, because in
case the woman would have led a life of prostitution
after a civil divorce, bodily inspection could hardly bring
results.*
I 0 ARTICLE II
•a
bodily inspection
Can. 1976
a
In causis impotentiae aut inconsummationis requiri-
tur inspectio corporis utriusque vel a'.terut rius coniugis
per peritos facienda, nisi ex adiunctis inutilis cvidenter
apparent.
Can. 1977
In peritis eligendis, praeter normas in can. 1793-1805
datas, scrventur praescripta canonum qui scquuntur.
Cases of impotency and non-consummation require bod-
ily inspection of both or one of the parties, which is to
be performed by experts, unless circumstances — like
those just mentioned — render it evidently useless. The
experts must be chosen by the judges after consultation
with the defensor vinculi. Besides, the following canons
must be observed.
Can. 1978
Ad periti munus ne admittantur qui coniuges priva-
8 C 4, X, II, 19. but without date or source) ; in
a Cfr. Am. Eccl. Rev., Vol. 9, this case dispensation was granted
466, 376 (contains two decisions, on other canonical proofs.
*rinnl*> Original from
iOO^IL UNIVERSITY 0FWI5C0NSIN
I
CANON 1979 425
tim inspexerint circa factum cui innititur petitio de-
clarationis nullitatis vel inconsummationis ; licet ta-
men hos tanquam testes inducere.
■
Those shall not be admitted as experts who have pri-
vately (as physician or midwife) examined the parties
concerning the vital point upon which the petition for
having the nullity of marriage declared or the non-con-
summation chiefly hinges ; such private experts may, how-
ever, be introduced as witnesses.
Can. 1979
§ 1. Ad inspiciendum virum, duo periti medici ex
officio deputari debent.
§ a. Ad mulierem vero inspiciendam duae obste-
trices, quae legitimum peritiae testimonium habeant,
ex officio designentur; nisi maluerit mulier a duobus
medicis ex officio pariter designandis inspici vel id
Ordinarius necessarium habuerit.
§ 3. Corporalis mulieris inspectio fieri debet, serva-
tis plene christianae modestiae regulis et adstante sem-
per honesta matrona ex officio designanda.
1. The two physicians who are to inspect the man are
to be appointed ex officio. This means that they have to
promise under oath that they will perform their duty
conscientiously and without human respect.*
2. The two midwives who have to inspect the woman
must be legally approved (by a state diploma or county
or city certificate) and must also be appointed ex officio.
Therefore they, too, have to be sworn in and must enjoy
a good reputation.8 But the woman may, if she so
chooses, or if the Ordinary deems it necessary, be in-
T Injtrmctio Orient., tit. VI, art. 5 {Coll., n. 1588).
• Ibid.
§le
, ,|,, Original from
UNIVERSITY OF WISCONSIN
426 MARRIAGE LAW
spected by two physicians to be appointed ex officio.
3. The inspection must be conducted with becoming
Christian modesty and always in the presence of a worthy
matron to be chosen ex officio. This matron is also
obliged to take an oath and to keep the secret.9
Can. 1980
§ 1. Mulieris inspectionem obstetrices vel periti,
seorsum singuli, exsequi debent.
§ 2. Singuli medici vel obstetrices singulas relationes
confidant, intra terminum a iudice praefinitum traden-
daa.
§ 3. Potest iudex relationes ab obstetricibus confec-
tas examini alicuius periti medici subiicere, si id oppor-
tunum existimaverit.
1. The midwives who perform the inspection on the
woman must do it separately.
, 2. Each physician or midwife has to draw up a sep-
arate report within a term to be fixed by the judge. In
this report, says an instruction of the Holy Office,10 they
may state the result of their inspection and what they
think about the nature of the impotency, whether it is
acquired or natural, absolute or relative. This report
should be sworn to and handed to the chancellor of the
matrimonial court.
3. The judge may, if he thinks it advisable, submit the
report of the midwives to the examination of an expert
physician, who should ascertain whether the inspection
was made along scientific lines.11
■
P
0 Ibid. Of course, physician* uterus may be proved we leare to
and midwives are bound by pro- physicians to decide; but they
feasional secrecy. should not forget to mention that
10/njtr. Orient., tit VI, art 5. fact in their report, and what they
How non-consummation in case of think about impotency and sterility.
a woman destitute of oTariea and 11 Inst. «#., ibid.
oogle
k .,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 1981 427
Can. 1981
Peracta relatione, periti, obstetrices ac matrons, seor-
sum singul i, a iudice intcrrogentur, secundum articulos
a vinculi defensore antea concinnatos quibus ipsi,
praestiti iuramento, respondcant.
After the report has been received, the experts, the
midwivcs, and the matron are to be questioned separately
according to the points previously drawn up by the de-
fensor vinculi, and must answer under oath.
Can. 1982
Etiara in causis defectus consensus ob amentiam re-
quiratur sufTragium peritorum, qui infirmum, si casus
f era t, eiusve acta quae amentiac suspicionem ingerunt,
examinent secundum artis praecepta ; insuper uti testes
audiri debent periti qui infirmum antea visitaverint
The verdict of experts is required also in cases of de-
fective consent caused by insanity. They must, if the
case admits, examine the patient as well as those acts of
his which cause suspicion, according to the rules of their
art (psychiatry). Besides, experts who have attended
the patient before his illness should be heard as witnesses.
1 Originalfrom
1 K H '8ie UNIVERSITY OF WISCONSIN
N
■
CHAPTER V
publication of the acts — close of trial —
sentence
Can. 1983
§ 1. Publicato processu fas adhuc est partibus novos
testes, ad normam tamen can. 1786, super diversis arti-
culis inducere.
§ 2. Si vero testes iam excussi super iisdem articulis
a
antea propositis denuo audiendi sint, servetur prae-
s crip turn can. 1781, integro iure defensor is vinculi op-
portunas proponendi exceptiones.
I. Even after the publication of the process the parties
are allowed to introduce new witnesses to testify on vari-
ous points. To understand this ruling we must remember
that the publication of the process takes place after all
the evidence has been collected, before the discussion of
the case begins and before sentence is pronounced. It
means that the whole material, consisting of all the proofs
given by the parties, the witnesses and the experts, is
made known to the parties and their lawyers, so that these
may inspect it, and, if they wish, demand a copy.1 This
is the processus publicatio. Now, in virtue of the or-
dinary rules,* new witnesses should not be admitted after
the publication of the acts, lest the proceedings be drawn
out indefinitely. Yet, because matrimonial trials are mat-
ters of great importance, the legislator permits the parties
to bring new witnesses, provided no fraud or bribe is en>
lCfr. can. 1838 t * Cfr. can. 1786.
428
G] Original from
OOglt UNIVERSITY OF WISCONSIN
CANON 1984 429
ployed, and provided both parties consent and the attorney
or defender does not object The judge has to make a
formal decree permitting the introduction of new evi-
dence.
2. If witnesses who have already been examined are
to be again questioned on the same points, the examina-
tion must be performed before the depositions have been
published (antequatn acta sen testificationes publici iuris
Hani), provided the judge deems it necessary and there is
no danger of a secret agreement or bribery.8 The de-
fender always has the right to object to the reintroduc-
tion of the same witnesses on the same points.
Can. 1984
§ 1. Defensor vinculi ius habet ut in allegando, pe-
1/1
tendo et respondendo, tam in scriptis quam in defen-
sione orali, audiatur postremus.
§ a. Quare tribunal ad def.nitivam sententiam ne
deveniat, nisi prius vinculi defensor interrogatus de-
claraverit sibi nihil deducendum vel inquirendum su-
peresse.
§ 3. Si vero ante pracHnitum a iudice iudicii diem de-
fensor nihil deduxerit, praesumitur eum nihil iam de-
ducendum habere.
w
1. The defender is entitled to be heard last, when al-
legations are made, petitions filed, or answers given, and
he may exercise this right either in writing or by word of
mouth.
2. Hence the tribunal shall not proceed to render a
verdict, unless the defender has formally declared, upon
request, that he has nothing more to bring forward or to
inquire into.
a Can. 1781.
I Original from
1 K H 'gie UNIVERSITY OF WISCONSIN
430 MARRIAGE LAW
3. If, however, the defender has brought forward
nothing to the contrary before the day set for the trial, it
is presumed that he has nothing more to say.
Can. 1985
In causis quae spectant ad dispensationem matri-
monii rati et non consummati, iudex instructor neque
ad publicationem processus neque ad sententiam super
ipsa inconsummatione et causis ad dispensandum
deveniat, sed omnia acta una cum voto scripto Epi-
scopi et defensoris vinculi transmittal ad Sedem
Apostolicam.
If the case concerns a dispensation from a matrimo-
nium ratum non consummatum, the judge who drafted
the case may neither publish the acts nor pronounce sen-
tence as to the non-consummation or the reasons for the
dispensation, but must send all the acts together with the
written view of the bishop and of the defender to the
Holy See.
Note that only in case of a dispensation from a merely
ratified marriage has the judge to abstain from giving sen-
tence.* If the trial merely concerns impotency, the Or-
dinary is allowed to give sentence in the first instance,
either for or against the nullity of the marriage (constat
vel non constat de impotentia in casu). Thus also in
other cases of impediments, of defect of consent and
form.
From this canon it appears that, besides the three
judges, there should be an officialis to preside over and
conduct the trial and to determine the administrative rules
-
for conducting cases.5 Hence index instructor here
4S. O. Aug. 6, 1890, ad 7 5Cu. 1577.
(Coll., n. I7JJ).
§le
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1985 431
o> 1
a
means the officialis of the diocese. But since the Code 6
permits that in smaller dioceses the offices of officialis and
vicar-general may be held by one and the same person,
it is evident that the vicar-general would in this case act as
index instructor. He would therefore be the moderator,
as he was formerly called, and as such should draw up
the case, according to the petition filed by the parties.
As soon as he has received this petition he shall cause the
chancellor or the secretary of the matrimonial court to
put it down in writing, issue rules and ordinances in ac-
cordance with the general rules on trials and with those
governing matrimonial trials in particular, which are
conducive to the regular and orderly compilation of
the acts, convoke the tribunal, summon the parties and
their witnesses, and grant delays when justly demanded.
All these things must be recorded in the acts by the chan-
cellor or secretary.7 But the real judge in matrimonial
matters is the Ordinary of the diocese, or rather the board
of three judges. Hence the matrimonial court should be
composed as follows: the moderator (officialis or vicar-
general) ; the three judges; the defender and the secre-
tary. The bishop may be personally present at every
session, but it is expedient that he leave the judgment to
the tribunal, over which the officialis of the diocese pre-
sides.8
The three judges must proceed collegialiter, as a body,
and give their verdict by majority vote." This is the
first instance, but it may be that an appeal is taken. Hence
the Code proceeds as described in the following chapter.
6 Can. 1573. I I. ■ Can. 1578.
"Instruction of l88j, B. 9 0 Can. 1577-
(Call., a. 1587).
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
■
CHAPTER VI
APPEALS
Can. 1986
A prima sententia, quae matrimonii nullitatem de-
claraverit, vinculi defensor, intra legitimum tempus, ad
superius tribunal provocarc debet; et si negligat of-
ficium suum impiere, compellatur auctoritate iudicis.
The defensor vinculi must, within the time granted by
law, appeal to a higher tribunal if the first sentence was
in favor of the nullity of the marriage. Should he neg-
lect to do his duty, he may be compelled thereto by the
judge.
The time within which an appeal may be made is ten
days from the date when he has received knowledge of
the first sentence.1 But an appeal may be taken only if
the first sentence declared the marriage null. If the sen-
tence was in favor of validity, and the parties are satisfied,
the defender shall abstain from appealing, and the whole
trial may be considered as closed.2
Can. 1987
Post secundam sententiam, quae matrimonii nullita-
tem confirmaverit, si defensor vinculi in gradu appella-
tions pro sua conscientia non crediderit esse appellan-
dum, ius coniugibus est, decern diebus a sententiae de-
nuntiatione elapsis, novas nuptias contrahendi.
If the second sentence confirms the first given in favor
of nullity, and the defender of the court of appeals (who
1 Can. 1 88 1. J Benedict XIV, "Dei miscra-
tione," I 8; Instructs, 1883, n. 25.
G Original from
OOglt UNIVERSITY 0FWI5C0NSIN
CANON 1988-1989 433
is a different one from that of the first instance) does not
feel himself obliged in conscience to appeal, the parties
are free to marry again after the expiration of ten days
from the date when the second sentence became known to
them. Pending the appeal, i. e,, during the time between
the first and second sentence, the party in whose favor the
nullity was declared in the first instance is not allowed
to remarry; and if he or she should have attempted a mar-
riage before the second sentence, they must be separated,
or else they are to be treated as guilty of polygamy.'
Can. 1988
Decreta matrimonii nullitate, Ordinarius loci curare
debet, ut de ea mentio fiat in baptismorum et matrimo-
niorum regestis, ubi matrimonii celebratio consignata
invenitur.
After the second sentence in favor of nullity, the Or-
dinary should see to it that the annulment of the mar-
riage is duly recorded in the baptismal and matrimonial
registers of the place where the marriage was contracted.
Can. 1989
Cum sententiae in causis matrimonialibus nunquam
transcant in rem iudicatam, causae ipsae, si nova argu-
menta praesto sint, retractari semper poterunt, firmo
praescripto can. 1903.
Since no sentence in matrimonial trials ever becomes a
res iudicata, a case may be reopened at any time, provided
new proofs are offered ; but these proofs must be of a
weighty nature and supported by documents.
A res iudicata is a controversy definitively settled by a
8 Benedict XIV, " Dei mistntion*," I 9.
oogle
v ,|rt Originalfrorn
UNIVERSITY OF WISCONSIN
434 MARRIAGE LAW
twofold identical sentence, or by one sentence from which
no appeal has been taken within the legitimate term, or
from which an appeal is not admissible.4 Therefore,
even if the nullity of a marriage had been confirmed by the
second instance, and the parties entered a new union, the
former case may yet be reopened. This is a favor iuris
of matrimonial cases, because marriage is indissoluble and
a matter of public welfare.0 It follows that no prescrip-
tion or lapse of time may be invoked against the right of
attacking a marriage. However, since the trial is con-
ducted on such rigorous lines, it would be unjust to listen
to frivolous reasons or proofs already heard and refuted.
Therefore weighty and new reasons must be proposed.6
It is evident that a verdict given by the Holy See cannot
be impugned upon the ground of can. 1989, or reversed by
the Ordinary without notifying the Apostolic See.
It is advisable to have a summary statement drawn up
before the trial is reopened.7
t Can. 1902. acta of all matrimonial trials are
» Smith, Marriage Process, p. 343. to be kept in the diocesan archives.
• Benedict XIV, " Dei miser*- 7 Lcitner, /. c, p. 558.
twite," I 11. For this purpose the
G I Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
CHAPTER VII
cases excepted from the preceding rules
Can. 1990
Cum ex certo et authcntico documento, quod nulli
contradiction! vel exception! obnoxium sit, constiterit
de exsistentia impedimenti disparitatis cultus, ordinis,
voti sollcmnis castitatis, ligaminis. consanguinitatis,
affinitatis aut cognationis spiritualis, simulque pari
ccrtitudinc apparuerit dispcnsationem super his im-
pedimentis datam non esse, hisce in casibus, praeter-
missis sollemnitatibus hucusque recensitis, poterit Or-
dinarius, citatis partibus, matrimonii nullitatem decla-
rare, cum interventu tamen defensoris vinculi.
This canon will probably evoke a sigh of relief from
more than one ecclesiastic who has to deal with matri-
monial cases. For it dispenses with almost all the formal-
ities of a regular trial, which always take time and
money.
1. The impediments which are brought forward in
order to have a marriage declared null and void are: dis-
parity of worship, sacred orders, solemn religious pro-
fession, the bond of a previous marriage, consanguinity,
affinity, and spiritual relationship, — seven in all. That
the others are not included is owing partly to the nature
of these impediments, partly to the difficulty of comply-
ing with the required conditions.
2. The conditions which govern the application of
this canon are: (a) that the existence of the impediment
be ascertained by a reliable and authentic document,
which cannot be rejected or disregarded; (b) that it be
435
Gi , Original from
OOglt UNIVERSITY QFWI5C0NSIN
436 MARRIAGE LAW
equally certain that no dispensation had been granted
from the impediment.
Authentic documents are such as are reliable and trust-
worthy because written or issued by the proper author-
ities. Such are the genuine acts of the Roman Court,
judicial acts and documents drawn up by an ecclesiastical
notary, baptismal and matrimonial records kept in the
archives of a diocese, parish, or religious community,
and copies made from these originals. Such are also
civil documents of a public character, issued according to
the laws of the country. All these, ecclesiastical as well
as civil documents, are presumed to be genuine until the
contrary is proved.1 Thus an "affidavit" if issued with
the proper formalities, in case of a marriage, is prima
facie evidence of such marriage in any court of Mis-
souri,8 and must therefore be considered an authentic
document in the ecclesiastical court.
Private documents, the Code says elsewhere,8 afford no
full proof, and are excluded by our text. It has happened
that a soldier without any commission from the authori-
ties made an investigation concerning a Baptism. The re-
sult was considered insufficient, especially since the de-
fensor vinculi was not present.4 Had the soldier obtained
an authentic document from an ecclesiastical court, the
investigation could not have been objected to as purely
private.
A document quod nulli contradiction! vel exceptioni ob-
noxium sit, is such a one as described above, provided it
is authentic, no matter whether issued by the ecclesiastical
or the civil authorities. The proof that it is not genuine
would have to be furnished by the plaintiff (actor) or
a
l Can. 1813 f. a Can. 1817-
I Revised Statute! of Mo., sect. 4 S. O., June 10, 1896, Albany,
45&3- N. Y. (Coll, n. 1940).
odbyG jle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 1990 437
his lawyer, not by the defendant (reus). Whether a
paper received from a Protestant minister concerning
Baptism is authentic must be decided from another view-
point.8
It is furthermore required that no dispensation had
been granted from said impediments. Therefore copies
of all the dispensations forwarded by the diocesan court
should be kept on file for cases of emergency, at least in
the form of lists indexed according to the species of the
various impediments. The Roman Court keeps its rec-
ords in good order and in this respect may serve as an ex-
ample to diocesan courts.
3. The Code adds that in these cases the solemnities
thus far mentioned (in the preceding canons, which pre-
scribe the regular trial) may be omitted, and the Ordi-
nary, upon having summoned the parties, may declare the
marriage null and void, provided the defensor vinculi is
satisfied. This is a decided modification, not only of
Benedict XIV's Constitution "Dei miseratione" but
also of former decrees* which required a summary trial
when a marriage was to be declared invalid because of
disparity of cult. Now the formalities of a regular trial
may be omitted, and all that is required is certainty gained
from authentic documents that no dispensation was
granted, summoning of the parties, intervention of the
defender, and a declaration of nullity. An appeal to a
higher tribunal is not required if the defender is satis-
fied ; 7 nor is recourse to the Holy See necessary in that
case.8 But can. 1988 must be observed.
5 This must be judged according a S. O., June io, 1896 (Coll.. n.
to the rules given under mixed 1940).
marriages. It would also require T S. O., June 5, 1889 (Coll., n.
an affidavit issued by civil authority 1706).
in order to authenticate it. S S 0., June 21, 1912 (.-.'. Ap.
S., IV, 443>-
• •-.
"-.
oogle
Y ,|,, Original from
UNIVERSITY OF WISCONSIN
Q
438 MARRIAGE LAW
Can. 1991
Adversus hanc declarationem defensor vinculi, si
prudenter existirnavcrit impedimenta de quibus in can.
1990 non esse certa aut dispensationem super eisdem
probabiliter intercessisse, provocare tenetur ad iudicem
secundac instantiae, ad quern acta sunt transmittenda
quique scripto monendus est agi de casu excepto.
If the defender prudently believes that the impediments
mentioned in the preceding canon did not exist or have
probably been dispensed from, he is obliged to appeal the
case to the judge of the second instance, to whom all the
acts must be transmitted with the notification that the
case belongs to the excepted class. Reasons for doubt
may arise from the nature of the documents. Thus a
pastor's record, although signed and sealed by the pastor,
may be doubtful because not verified by the episcopal
court.9 A case might be made out against spiritual rela-
tionship, because the names of the sponsors were illegibly
written or there was doubt as to identity, especially if the
name is a very common one. In cases of consanguinity
error is possible as to the degree. Concerning the mar-
riage tie doubts may arise as to the examination of the
free status of the contracting parties, etc. ; much depends
on the character of the papers and the attitude of the
defender.
Can. 1992
Iudex alterius instantiae, cum solo interventu de-
fensoris vinculi, deccrnct eodem modo de quo in can.
1990, utrum sententia sit confirmanda an potius pro-
c
9 Instruction of 1883, n. 31 (.Coll.. n. 1587).
v ,1,., Original fro m
UNIVERSITY QfWI5C0NSIN
>gle
CANON 1992 439
cedendum in causa sit ad ordinarium tramitem iuris,
quo in casu cam remittit ad tribunal primae instantiae.
The judge of the second instance, with the sole inter-
vention of the defender, shall decide, as stated in can.
1990, whether the first sentence is to be confirmed or a
regular trial instituted ; in the latter case the matter is to
be referred back to the tribunal of the first instance.
oogle
Original from
UNIVERSITY OF WISCONSIN
APPENDIX I
SOME SPECIMEN PETITIONS FOR MATRIMONIAL
DISPENSATIONS
Foe Mixed Marriages ok Disparity of Worship
To the Rt. Rev. Bishop N. N. :
N , a Catholic of this parish, wishing to marry N ,
a non-Catholic, humbly prays the Right Rev. Bishop, in virtue
of the faculties granted by the Holy See, to grant a dispensa-
tion from the impediment of mixed religion (or disparity of
cult).
The non-Catholic party has complied with the conditions pre-
scribed by law (can. 1061).
Or if not complied with in writing: The non-Catholic party
refuses to give the promises in writing, but has made an oral
promise to the same effect The reasons are : angustia loci, aetas
superadulta, periculum matrimonii contrahendi coram ministro
acatholico, etc
Please find enclosed $ for alms.
To the Apostolic See:
Ad pedes Sanctitatis Vestrae provolutus humillime rogat N.
Catholicus super impedimento disparitatis cultus, quatenus ma-
trimonium inire valeat cum N. acatholica non baptizata, vel
saltern valde dubie baptizata. Promissiones proat de iure re-
quiruntur sunt praestitae (vel saltern oraliter factae sincere).
Causae vero sunt
Pro qua gratia, . . .
The Ordinary should write below the signature, or on a special
paper: Petitionem hanc enixe commendat Ordinarius o rat oris,
cuius rationes, in quantum scit, veritate nituntur, et promissiones
sincere factas esse credit
Pro Sanations in Radice
To the Bishop:
N , (fictitious name), wishing to validate his (or her)
marriage with B , humbly prays the Right Rev. Bishop, in
440
gle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
APPENDIX 441
virtue of the faculties granted by the Holy Sec, to grant a re-
validation (sanatio in radice), removing the impediment of (for
ex. crime of adultery with promise of marriage), which he (or
she) concealed at the time of marriage with B., who is still
ignorant thereof.
The reasons for requesting a sanatio in radice are, on the one
hand, scandal and the danger of incontinence resulting from
separation if imposed; on the other hand, impossibility of ob-
taining the renewal of B.'s consent without serious danger of
dissension.
Double Impediment
(See Can. 1050)
Beatissime Pater:
Exponitur hurai liter Sanctitati Vestrae pro parte oratricis N.,
dioccesis N., ex loco N., quod cum dicta oratrix catholicae re-
ligion! addictissima nubere intendat viro N. non baptizato, cui
ctiam coniuncta est in sccundo gradu amnitatis lincac colla-
terals, Sanctitatem Vestram humillime rogat, quatenus benigne
dispensare dignetur de hoc duplici impedimento. Oratrix est
vidua tribus liberis onerata, quorum senior quinquennium non
excedit. Insuper propter res familiares ipsius mulieris loco huic
adnexas vix alium virura invenire poterit quippe cum locus ipse
acatholicis potius quam catholicis abundet et numerum focula-
rium 100 non superet.
Pro qua gratia. . . .
ltd res sc habere parochus oratricis testatur, quapropter hunc
supplicem libellum enixe commendat
N. N.
Episcopus Ordinarius Dioecesis N.
Fos a Sanatio in Radice to the S. PoENrrsNTiASiA
Beatissime Pater:
Ad pedes Sanctitatis Vestrae humiliter exponit parochus loci
N., dioecesis N., in Statu N. Mulier quaedam nomine (fictitious
name), cum esset legitime coniuncta viro (fictitious name), car-
naliter cognita fuit a Ioanne, cui post primi mariti mortem nupsit
in facie ecclesiae. At obstare videtur imped i men tarn crirninis,
quippe cum non solum adulterium commisit cum dicto Ioanne,
oogle
I ^ ,|,., Original fro m
UNIVERSITY OF WISCONSIN
442
APPENDIX
verura eliam scrio promisit perdurante codem lcgitimo matri-
ir.onio se nupturum ipsi post viri mortem. In super fatetur
mulier quod vir praesens ipsi patefecerit sc nunquam fuisse bap-
tixatum ante eorum matrimonium, quamvis tamquam catholicus
sc gesserit semper. At momento periculi sat proximo mortis
ipse peterit baptismum, cumque nullus sacerdos potcrit haberi
ant adiri convenienter mulier ipsum rite baptizavit. At post
recuperatam valetudinem noluit vir renovare consensu™, quo-
cumque modo oblatum, et mulier timens, ne propter anteactae
vitae suae consuetudinem praefatus vir ipsam forsitan relin-
queret et prolem reclamarct acatholicis tradendam, rogavit in-
stanter, ut Sanctitas Vestra saluti eius necnon prolis benigne
consulere dignetur, quatenus opus sit, per sanationem in radice.
Quoad publicitatem horum impedimentorum in quantum scio,
nullus est in loco isto, qui hos coniuges non crederet veros, vel
quidquam mali suspiceret, et quominus divulgaretur vix timen-
dum est.
Pro qua gratia. . . .
N. N.f Parochus.1
1 Cfr. Pyrrhu* Corradus, Prosit ment. in 1-acxlt. Apost., ed. «a, pp.
DUprnsat. Apott. (Migne, Cursus laa ff.
Thiol. Vol. xriii); Putzer, Com-
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
—
a
N
APPENDIX II
(See Can. 1099, § 2, p. 303)
It may be worth while to add a few observations on this
section, especially since Sabetti-Barrctt (Theologia Moral. 27th
ed. 1919, p. 940), has drawn attention to the same. Our canon
evidently enumerates three classes of persons who are, or are
not, respectively, obliged to observe the Catholic form of mar
riage. The first class is that of Catholics, whether they are
such now, at the moment of marriage, or have been such pre-
viously and fallen away. Wc will designate these by the letter A.
The second class is that of non-Catholics who never belonged
nor now belong to the Catholic Church, regardless of whether
or not they were baptized. The letter B shall designate them.
The third class comprises persons born of non-Catholic parents,
but baptized in the Catholic Church, though not raised as
Catholics. The letter C shall stand for these. Putting the
three classes into a mathematical schema we have the following
possibilities :
E
If A marries A — Bound by Catholic form.
If A
M
tj 11 14 it <i
If A
it
r* *i 11 11 11
If B
H
K U II II II
If B
■•
B — Not bound by Catholic form.
If B
(■
f"__ II II II II u
If C
«
A — Bound by Catholic form.
If C
M
B — Not bound by Catholic form.
If C
11
C — Then what?
We believe they are obliged to observe the Catholic form.
Our reason is: C forms a class for itself, distinct from class
B, and as the text states that one in Gass C is not bound
to observe the form when he marries one of Class B, the Code
manifestly wishes to restrict that freedom from the observance
of the law to the sole case of a marriage between C and B.
Otherwise the lawgiver would have undoubtedly stated: when
443
Go >gle
I , Original fro m
UNIVERSITY OF WISCONSIN
444 APPENDIX
they marry among themselves — quo tits inter se contrakant.
Hence the wording, it seems to us, taken in its strict sense,
would oblige parties in Class C to observe the form if they
marry among themselves. The objection that they are ignorant
of the law. and practically spurn it, proves nothing, for it could
'be urged also against § I of our canon, because should-be
Catholics who have fallen away and marry among themselves,
or with non- Catholics, are also bound by the Catholic form.
The old principle that by Baptism one is bound to obey the
ecclesiastical law is here again apparent (can. 87). That non-
Catholics (in the strict sense) are exempted is an exception
and must be strictly interpreted.
-
>Ie
I » Original from
UNIVERSITY OF WISCONSIN
D
"\
APPENDIX III
In cases where doubts arise as to whether baptism was con-
ferred at all, or conferred validly, and, consequently, whether a
marriage contracted between two non-Catholics, or between a
Catholic and a non-Catholic, was valid, the following rules 1
may with some safety be applied, since they are based upon offi-
cial decisions.
I. A marriage contracted between a Catholic, or a non-Cath-
olic who has undoubtedly been baptized, and a non-Catholic whose
baptism is doubtful, is to be considered valid.
3. A marriage contracted between two non- Catholics, if the
baptism of both parties is doubtful, must be held valid
3, Invalid is a marriage contracted between a party whose
baptism is doubtful and one who certainly never was baptized.
However, this last rule now, after May 19, 1018, must not
be applied to such marriages as are contracted between strictly
non -Catholics, i.e., such as never have been Catholics either by
baptism or conversion, on account of can. 1070.
On rules 1 and 2 see S. O., Nov. 17, 1830 {Coll P. F., n. 821) :
" R. 1. Quoad haereticos quorum sectae ritualia pracscribunt
collationem Baptismi absque necessario usu materiae et formae
essentia iis, debet examinari casus particular is. — 2. Quoad alios
qui iuxta coram rituale baptizant valide, validum censendum est
Baptisma. Quoad si dubium persistat, etiam in primo casu, cen-
sendum est validum Baptisma in ordine ad validitatem matri-
monii."
S. O., Sept 9, 1868 (Coll. P. F., n. 1534) :
M I. Utrum, in casu dubii de valore baptismi, qui ita baptismum
dubium accepcrunt, in xudicando de aliis dimcultatibus, v. g. circa
matrimonium, iaponenses ut christian), vel adhuc ut infideles
considerandi sint
" 2. Utrum si dubium de valore baptismi remaneat, et S. Con-
gregationi solvere dubium non visum sit opportunum, de his qui
lWernx, Ins Dtcrttatium, ed. a, 191a. VoL IV, a, p. 384 f-
445
;Ic
^ ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
446 APPENDIX
tic cubic baptizati sunt, in rebus quae ad matrimonium spectant,
ac si vcre et validc baptizati fuisscnt iudicandum sit, vd non.
" R. Ad. I. Generatim loquendo, ut christian i habendi sunt ii
de quibus dubitatur an valide baptizati fuerint
u Ad. 2. Ccnsendum est validum baptisma in or dine ad valtdi-
tatem matrimonii"
On rule 3 see S. 0., July 14, 1880 (Coll. P. F.t n. 1536) :
" x. Matrimonium dubic baptizati cum non baptizata estne
validum ?
"2, Matrimonium duorum dubie baptizatorum estne validum
ctiamsi sint consanguinci, affines, etc
" R. Ad. x. Matrimonium esse habendum uti invalidum ob im-
pedimentum cultus disparitatis.
" Ad. 2. Matrimonium habendum esse ut invalidum ob impc-
dimentum consanguinitatis vel affinitatis."
S. O., Feb. 4, 1891 {ibidem, n. 1746) :
" Qui invalide baptismum receperum, tamquam cthnici ha-
bendi sunt, ac proinde si isti matrimonia inter se contraxerunt,
nisi obstet aliquod impedimentum iure naturae dirimens vera
ha ben da erunt. Qui valide aut dubie baptizati fuerint, ii sub-
sunt impedimentis etiam iure ecclesiastico dirimentibus. — At
fieri potest ut una pars valide aut dubie, altera vero invalide bap-
tizata fucrit Hoc in casu corum matrimonium nullum erit
ob cultus disparitateai."
►ogle
, ,|,, Original from
UNIVERSITY OF WISCONSIN
APPENDIX IV
(On Canons 1048, 1063, and 1139-)
Our opinion was asked on the following case: James, a Cath-
olic, had contracted marriage with Gemma, a baptized Episco-
palian, a. d. 1913, but before a non-Catholic minister, therefore
invalidly, on account of the form prescribed having been neg-
lected (can. 1099). Now, a. d. 1930, he wishes to return to the
Church and receive the Sacraments. His would-be wife con-
sents to leave him perfect freedom in the exercise of his reli-
gion, is also willing to renew her consent before a Catholic
priest and two witnesses, but absolutely refuses to guarantee at
the present time to have the children brought up as Catholics.
What is to be done?
x. According to can. 1139, 1, the marriage could be healed in
the root, because it was invalid on account of defective form.
2. Can this sanatio be applied? A decree of the Holy Office,
Dec. 22, 1916 (A. Ap. S.f Vol. IX), reads that in our case the
sanatio rather than cor. validation with renewal of the consent
before the priest and two witnesses, should be applied, that is
to say, healing in the root is preferred to simple con validation;
most probably in order not to expose the sacred minister to an
(at least passive and illicit) co-operatio in sacris. But what
about the divine-natural law which forbids granting a dispensa-
tion when the precautions are not guaranteed? For, as stated
above, the non-Catholic party absolutely refuses to guarantee
the Catholic education of the children. Here we can only state
that the Supreme Pontiff, and he alone, can declare whether the
divine-natural law which requires the guarantee of Catholic edu-
cation is binding in that particular circumstance and instance.
A reason for benign interpretation lies in the promise of the
non-Catholic party to permit the husband to exercise the Cath-
olic religion with perfect freedom. This concession may pave the
way to the other promise being made, at least tacitly. Besides
the sincere desire of being and living as a Catholic is to be
greatly valued.
447
f* 1 v,|n Original from
J by^jOOglt UNIVERSITY OF WISCONSIN
448 APPENDIX
a
3. Now the question arises whether our bishops enjoy the
power of applying the sanatio in cosu. According to the decree
of Aug. 2, 1918, it would seem that our Ordinaries and those
of Great Britain have that power (supra, p. 1x4). However,
we would not venture to vindicate it in the case in question.
For although the sanatio itself, as such, would cause no diffi-
culty, because can. 1139, 1, would admit and the decree of Aug.
a, 1918, would not contradict it, yet there is an obstacle. For,
as stated above, the divine-natural law requiring Catholic educa-
tion is here jeopardized and needs a declaration, which, accord-
ing to the view of the School, can only be given by the Supreme
Pontiff, i.e., by the Holy Office. This was the stand taken by
the Holy Office in the above-mentioned decree. The Ordinary
had asked whether the faculty of healing in the root — which
he had already obtained from the Apostolic See — was con-
tained in the faculty of healing in the root mixed marriages
which were invalidly contracted on account of clandestinity or
non-observance of the form presented by the "Ne tetnere."
The answer was that it was not contained therein and that there-
fore the Holy Father should be asked for the favor of healing
all marriages invalidly sanated by the bishop.
Hence the case in question would have to be sent to the S.
Congregation of the Sacraments, which will ask at least the
parere or view of the Holy Office.
" Ordinarius Dioecesis N., obtenta iam facultate sanandi in
radice matrimonia mixta, nulla ex capite clandestinitatis quia
non celebrata ad normam Decreti ' Ne Temere,' quando pars
acatholica renuit se sistere coram parocho catholico, quaerh
nunc:
" 1) Utrum quando pars acatholica non renuit se sistere coram
parocho catholico, renuit tamen oranino praestare debitas cau-
tiones, providendum sit per dispensationem et renovationem
consensus coram parocho catholico passive se habente, vel
potius per sanationem in radice: et quatenus providendum sit
per sanationem in radice,
" u) Utrum facultas sanandi in radice in hoc secundo casu
comprehensa censenda sit necne in facultate iam obtenta san-
andi in radice matrimonia mixta, nulla ex capite clandestinita-
tis, vel
" 3) Utrum peti debeat an non nova facultas a S. Sede.
*Ie
^ ,1 » Original from
UNIVERSITY OF WISCONSIN
APPENDIX 449
" In plenario conventu Supremae Sacrae Congregations Sancti
Officii, habito feria IV, die 20 nov. 1912, propositis suprascriptis
dubiis, Emi ac Rmi Dni Cardinales in rebus fidei et niorum In-
quisitores Generates, omnibus mature perpensis, respondendum
decreverunt :
"Ad Ium, Negative ad primam partem, affirmative ad se-
cundam.
" Ad 2um, Non comprehendi.
" Ad 311m, Provisum in secundo. Et supplicandum SSmo ut
sanare dignetur in radice matrimonii* ex hoc capite nulla quae
usque adhuc invalide ab Episcopis sanata fuerint.
'* Et sequenti feria V, die 21 eiusdem mensis. SSmus D.N.D.
Pius divina providentia PP. X, in solita audientia R.P.D. Ad-
sessori eiusdem Supremae Sacrae Congrcgationis impertita
Emorum Patrum resolutionem benigne adprobare et confirmare
et sanationem in radice matrimcmiorum quae ex hoc capite nulla
usque adhuc invalide ab Episcopis forte sanata fuerint largire
dignatus est.
" Contrariis non obstantibus quibuscumque.
" Datum Romae, ex Aedibus S. Officii, die 22 decembris 1916.
"Aloisius Castexlano, S. R. ct U. E. NoUrius."
( \^t\n\ Original from
^ .OOglL UNIVERSITY OF WISCONSIN
"
APPENDIX V
The Wae Faculties
Here we may add a remark concerning the duration of the
war faculties. Do they still hold? The treaties of Versailles
and St. Germain have been signed by the parties immediately
concerned, but our country has reasonably delayed signing on
account of intrinsic difficulties. Besides the treaties with Tur-
key and Bulgaria have not yet been signed. Furthermore, a
state of war still exists in Russia, and Jugo-Slavia, and it it is
true what we read in the papers, about twenty other wars are
still going on. Hence we believe that, until formal peace is
established in all countries, the war faculties can be made use of.
November, Jp/o.
450
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
gle
"Original from
UNIVERSITY OF WISCONSIN
G I Originalfiom
OOglL UNIVERSITY 0FWI5C0NSIN
>Ie
Original from
UNIVERSITY OF WISCONSIN
Gi Original from
UOglt UNIVERSITY QFWI5C0NSIN
'le
Original fro ni
UNIVERSITY OF WISCONSIN
may be kept
aciDaa3ms7D
b89088314570a
oogle
Original from
UNIVERSITY OF WISCONSIN
Original from
UNIVERSITY OF WISCONSI
p
-
Ui&rarp
of (lie
Unibfrsitt' of Vision sin
-
i
i^iijjji^u^^
jle
Original from
UNIVERSITY OF WISCONSIN
N
■
►ogle
Original from
UNIVERSITY OF WI5CGNSI
i
Joogle
Original fro ni
UNIVERSITY OF WISCONSIN
►ogle
Original from
UNIVERSITY OF Vi-'ISCONSI
V.
gle
Original from
UM IV ERS If Y 0 F Vi-1 1 S CO N S I
a
N
■
►ogle
Original from
UNIVERSITY OF WISCONSIN
A COMMENTARY ON
THE NEW
CODE OF CANON LAW
By THE REV. P. CHAS. AUGUSTINE, O.S.B., D.D.
Projujor of Canon Law
■
Volume VI
Administrative Law
(Can. 1154-1551)
.:
B. HERDER BOOK CO.
17 South Broadway, St. Louis, Mo.
ANP
68, Great Russell St., London, W. C.
1921
►ogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CUM PERMISSU SUPERIORUM
NIHIL OBSTAT
Sti. Ludovici, die 18. Nov. 1920
F. G. Holweck,
Censor Librorum.
■
9
IMPRIMATUR
Sti. Ludovici, die 22. Nov. 1920
^Joannes I. Glennon,
Archie pise opus
Sti Ludovici.
Copyright, 1921
by
Joseph Gummersbach
All rights reserved
Printed in U. S. A.
_-
-
•■-.
-
-
MIL-BALLOU COMPAMr
f"' )- • -toh ***D NEW VOMK
oogle
Original from
UNIVERSITY OF WISCONSIN
CQ
BIZ
6
587682
IN REXIGIONE ET LABORS
SOCIO CAKISSIMO
VTSO DOCTB1NA EXCELLENTISS1MO
AD
S. VINCENTIUM SEMINAR1I
EGREGIO RECTORI
S. THEOLOGIAE DOCTORI
R. P. AMBROSIO KOHLBECK, O. S. B.
HANC
DE SEMINARIIS
LEGUM COLLECTIONEM
AUCTOR DED1CAT AMANTEK
oogle
Original from
UNIVERSITY OF WISCONSIN
►ogle
Original from
UNIVERSITY OF WI5CGNSI
CONTENTS
PAGE
BOOK III- PART II. SACRED PLACES AND TIMES i
c
Section I. Sacred Places in General 2
Definition 2
The Minister of Consecration ....... 3
The Minister of a Blessing 6
Registration and Proof 7
Immunity of Sacred Places 9
Title IX. Churches 12
Definition 12
Building of Churches 13
Dedication of a Church 19
The Consecration of Churches and Altars .... 23
Anniversary of Consecration 24
Titles and Titular Feasts 25
Church Bells 28
Loss of Consecration or Blessing 32
Effect of Consecration or Blessing 23
Desecration of a Church 35
Consequences of Desecration 41
The Reconciliation of Churches 42
Decorum of the House of God 46
Ius Asyli 47
The Title of Basilica 49
Entrance Fees not Allowed 50
The Administration of Churches 51
Trustees 55
Repair of Churches 58
Title X. Oratories 65
Definition and Division 65
Chapels of Cardinals and Bishops 68
Private Cemetery Chapels 69
v
gle
I , Original fro m
UNIVERSITY OF WISCONSIN
vi CONTENTS
PAGE
Public Oratories 7<>
Semi-Public Oratories 72
Private Oratories 78
Title XI. Altars 84
Definition and Species 84
Requisites 86
Consecration of Altars 9*
Loss of Consecration 93
Titles of Altars 9°"
Profane Uses Not Tolerated 97
Title XII. Ecclesiastical Burial 100
Burial vs. Cremation IOO
Ecclesiastical Burial 102
■
Chapter I. Cemeteries 104
Blessed Cemeteries 104
Rights of the Church in Regard to Cemeteries . . 106
Interdict, Violation, etc., of Cemeteries .... 108
Owners of Cemeteries 108
Keeping of Cemeteries ll1
Waiting Time "2
Exhumation *x3
Chapter II. Funeral Services and Interment . . 115
Conveying Bodies to Church "5
Parochial Rights in Regard to Burial 116
Transfer to One's Own Church 118
Burial of Cardinals and Bishops 120
Funeral of Beneficiaries J21
Funerals of Religious 122
Guests and Students of Religious 124
Selection of Sepulture 126
Ancestral Tombs 132
Duties and Rights of Pastors in Regard to Burials . 133
Burial *39
Funeral Processions *4°
Mourners and Emblems H1
Funeral Fees x44
Portio Paroecialis M°
Recording of Deaths W
oogle
/"* ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
—
N
CONTENTS vii
MCE
Chapter III. Ecclesiastical Burial, to Whom
Granted or Denied 151
To Whom Granted 151
To Whom Denied . 152
Exhumation of Corpses 159
Section II. Holy Seasons 160
Dispensations 163
Reckoning Feasts and Fast Days 168
s
Title XIII. Holydays 170
Obligations Connected with Holydays 172
Where Mass May be Heard 175
p
Title XIV. Abstinence and Fasting ...... 177
The Law of Abstinence 177
The Law of Fasting 177
Days of Abstinence and Fasting 179
Particular Laws 180
Who Is Obliged to Fast and Abstain 184
:
-■
PART III. DIVINE WORSHIP 186
Public and Private Worship 189
Approbation of the Liturgy 190
Cornmunicatio in Sacris 192
Approbation of Devotions and Litanies .... 198
Independence from Secular Interference .... 200
Duty of the Ordinary 201
Separate Seats for Men and Women in Church . . 204
Distinguished Seats in Church 206
Church Music 208
Title XV. Reservation and Worship of the Blessed
Sacrament 213
Open Churches 218
The Blessed Sacrament Altar 218
The Tabernacle 221
The Pyx 224
The Tabernacle Light 225
Altar Breads 2a6
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
viii CONTENTS
PAGI
Frequent Assistance at Mass and Visits to the BL
Sacrament 227
Exposition of the Blessed Sacrament 227
The Forty Hours' Devotion 233
Title XVI. Worship op the Saints, Sacred Images,
and Relics 235
Public Worship of the Saints 236
Patron Saints 240
Pictures of Saints 241
Restoration of Statues and Paintings 243
Alienation of Relics and Images 244
Authentication of Relics 247
Exposition of Relics 251
Relics in the Bishop's Pectoral Cross 252
Precautions against the Sale and Profanation of
Relics 253
Title XVIT. Sacred Processions 255
Definition and Division 255
Corpus Christi Procession 257
Other Processions 261
Religious Not Allowed to Hold Public Processions
without the Permission of the Ordinary ... 263
Pastors and the Clergy in Relation to Processions . 264
Order of Processions 265
Title XVIII. Sacred Vessels, Utensils, Vestments,
etc. (Sacra Supellex) 267
Care and Maintenance 267
Cardinalitial, Episcopal, and Clerical Supellex . . 270
Duty of Making a Valid Testament 277
Custody of the Sacra Supellex 279
Further Directions Regarding the Sacra Supellex . 280
Blessing of the Sacra Supellex 281
Loss of Blessing; or Consecration 284
Handling Sacred Vessels 286
Title XIX. Vows and Oaths 289
Chapter I. Vows 289
Definition and Capacity 289
Kinds of Vows 292
|M
jle
j , Original fro m
UNIVERSITY OF WISCONSIN
■
CONTENTS ix
PAGE
Reserved Vows 293
Personal Obligation 295
Cessation of Obligation 207
Irritation of Vows 2gg
Dispensation from Vows 303
Commutation of Vows 307
Chapter II. Oaths 310
Definition 310
The Obligation Arising from an Oath 312
Nature of Obligation 313
Cessation of Obligation 314
Dispensation from Oaths 316
Interpretation 316
PART IV. THE TEACHING OFFICE OF THE
CHURCH 318
Right of the Church to Teach 319
The Material Object of Faith 322
Dangers to Faith 328
Profession of Faith 329
Bishops as Judges in Matters of Faith .... 336
Title XX. Preaching the Wokd of God 33$
Missio Canonica 341
Chapter I. The Pastor's Duty 343
Catechetical Instruction 343
Catechists 346
Obligations of Religious r . 347
Duties of Parents 349
Diocesan Regulations 350
Chapter II. Sermons 35*
Faculty Required for Preaching 35 *
Religious Preachers 352
Religious vs. Ordinaries 354
Examination 35*>
Extradiocesan Preachers 359
Go >gle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
x CONTENTS
PACK
Who May Preach 362
The Pastor's Duty to Preach 364
Instruction in Christian Doctrine in Other than
Parish Churches 366
Lenten and Advent Sermons . 367
Subjects of Sermons 368
Duty of the People 369
N
Chapter III. Missions . 370
Missions to Non-Catholics 370
Tmx XXI. Seminaries 373
Right of the Church to Educate the Clergy ... 374
The Duty of Pastors with Regard to Gerical Voca-
tions 376
Diocesan Seminaries 377
The Seminaristicum 380
The Bishop's Duties in Regard to the Seminary . . 388
Seminary Officials 380
Diocesan Seminary Board 300
Qualifications of the Chief Seminary Officials . . 391
Seminary Confessors 393
Scholarships 304
Admission to Seminaries 395
Plan of Studies for Little Seminaries 396
Philosophy and Theology 398
Qualifications of Seminary Professors 401
The Religious Training of Seminarists 403
Exemption of the Seminary from Parochial Juris-
diction 406
Seminary Discipline 408
Students Outside the Seminary 410
Dismissal of Students 410
Title XXII. Schools 411
The Duty of Christian Education 411
Religious Instruction in Schools 413
Non-Catholic Schools 414
The Right of the Church to Establish Schools . . 416
Universities, Faculties, and Degrees 419
Rights Attaching to the Degree of Doctor .... 421
Go >gle
I , Original fro ni
UNIVERSITY OF WISCONSIN
■
CONTENTS xi
PAGE
Catholic Schools to be Established 422
Clerics to Pursue Higher Studies 423
Religious Instruction under Church Authority . . 423
School Inspection by the Local Ordinaries ... 426
Title XXIII. The Censorship and Prohibition of
Books 428
Right of the Church 438
Chapter I. Previous Censorship 433
Obligations of Clerics and Laymen ...... 440
Various Exceptions 444
Bible Versions 447
When a New Approbation is Demanded .... 449
Diocesan Censors 450
The Imprimatur Must be Given in Writing . . . 452
Chapter II. The Prohibition of Books 454
Who Has the Power to Forbid Books 454
Books Forbidden by the Apostolic See 458
The Obligation of Denouncing Books 459
The Effects of Prohibition 463
List of Forbidden Books 466
Exception in Favor of Theological Students . . . 475
Persons Exempt from the Prohibition 477
Faculties 478
Booksellers 481
Penal Sanction 483
Title XXIV. The Profession of Faith 485
Who Must Make It 485
PART V. BENEFICES AMD OTHER NON-CORPO-
. RATE ECCLESIASTICAL INSTITUTIONS . 491
Title XXV. Ecclesiastical Benefices 493
Definition 493
Division of Benefices 496
Chapter I. Establishment or Erection of Bene-
fices . .' 498
Competent Authority 498
Requisites of Erection 498
* -x, \i-\i » Originalfrom
oogle
UNIVERSITY OF WI5CON5I
xii CONTENTS
pace
Chapter II. Union. Transfer. Division, Dismember-
ment, Transformation, and Suppression of Ben-
efices 501
Union 501
Transfer, Division, Dismemberment, etc 502
Rights of the Local Ordinaries 503
Religious Benefices 505
Transfer of Secular Parochial Benefices .... 506
Division of Parishes 506
Pensions 513
Transformation 515
Chapter III. Bestowal of Benefices 516
Cardinals and Ordinaries 516
Benefices Reserved to the Holy See 517
Acceptance 518
Provision to be Made for Life 510
Qualities of Beneficiaries 519
No Deductions Permissible 510
On Whom Benefices May be Conferred .... 520
Installation 521
Prescription and Titulus Coloratus 521
A Litigant Benefice 522
Chapter IV. Iuspatronatus or Advowson .... 524
Popular Patronage 526
Transmission of Patronage . 527
Authentic Proof Required 527
Privileges of Patrons 527
Wife and Minors . 528
Time of Presentation 526
Collegiate Presentation 529
Candidates 53*
Rejection of the Candidate Presented 532
Effect of Accepted Presentation 53a
Obligations of Patrons 533
Loss of the Iuspatronatus 534
Indult of Presentation 535
Chapter V. Rights and Duties of Beneficiaries . 536
Rights in General 536
'■-.
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
CONTENTS xiii
PAGE
Order and Canonical Hours 538
Obligations of Administration 539
Leases 540
How the Revenues are to be Divided in Case of the
Beneficiary's Death 540
What is to be Done in Case of Vacancy . . . .541
Episcopal Revenues 541
■
Chapter VI. Resignation and Exchange op Bene-
fices 542
Resignation 542
Exchange of Benefices 544
Title XXVI. Other Non-Corporate Ecclesiastical
Institutions 54^
PART VI. THE TEMPORAL POSSESSIONS OF THE
CHURCH 549
Right of the Church to Possess Property .... 549
Title XXVII. The Acquisition of Ecclesiastical
Property 557
Division and Transfer of Church Property . . . 558
Begging 560
The Cathedraticum 561
Subaidium Charitativum 563
Prescription 566
Donations and Legacies 570
Change of Last Will 574
Title XXVIII. The Administration of Church Prop-
erty 577
The Sovereign Pontiff 577
The Local Ordinaries 57^
The Diocesan Board of Administration .... 579
Administrators of Individual Institutions . . - .581
The General Duties of Administrators 5&*
Special Duties of Administrators 586
Title XXIX. Contracts 590
Ecclesiastical and Civil Contracts 590
Alienation S92
oogle
/"* ^ * %\s* • Original from
UNIVERSITY OF WISCONSIN
xiv CONTENTS
PACT
Formalities of Alienation 599
Donations 601
Mortgages and Debts 603
Sale and Exchange 604
Administrators and Relatives Excluded 605
Lease or Rent 605
Interest , 60S
Title XXX. Pious Foundations 610
Definition 610
Safeguards of Foundations 612
Formalities 613
Exempt Religious 614
Reduction of Obligations 615
gle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
■
Q
THE NEW CODE OF
CANON LAW
BOOK III -PART II
SACRED PLACES AND TIMES
INTRODUCTION
After the treatise on the Sacraments and Sacramentals,
we come to sacred places as the next subject of considera-
tion. Sacred places partake, as it were, of the sacra-
mental nature and may, therefore, be truly called vehicles
of sanctification. Besides, being consecrated or blessed,
they may be claimed by the ecclesiastical authorities as
their own, and are not subject to civil power.
Means of sanctification are also sacred times, namely
holydays and days of fasting and abstinence. These
form the subject-matter of Part II of the Third Book
of the Code.
►ogle
/"* ^ v ,1,, Original from
UNIVERSITY OF WISCONSIN
-
■
pi
SECTION I
SACRED PLACES IN GENERAL
definition
Can. i i 54
Loca sacra ea sunt quae divino cultui fidelxumve
aepulturae dcputantur consecratione vcl benedictionc
quam probati liturgici libri ad hoc pracscribunt.
Sacred places are places set aside for divine worship,
or for the burial of the faithful, by a consecration or
blessing prescribed for this purpose by the approved
liturgical books.
The custom of withdrawing certain buildings from
profane uses and dedicating them to the divinity, is as
old as divine worship itself. The act by which a place
is made sacred, is called consecration or blessing. The
canonical effects of both are the same. These effects
consist partly in the destination of an otherwise profane
thing for sacred functions and worship, partly in the
prohibition of profane acts being performed in sacred
places. Hence Can. 1172 mentions the violation or de-
filement of a church if certain acts are committed therein.
Besides, the sacred character is apparent from the ius
asyti referred to in Can. n 79. Finally, though this is
not specially mentioned in the text, certain profane acts
must not be performed in sacred places. Such acts are
civil trials, theatrical and purely secular entertainments,
.'le
£ * ^ ^ -%\jr% Original from
UNIVERSITY OF WISCONSIN
CANON 1155 3
political or merely worldly meetings, and every species of
buying and selling.1
As we said, the canonical effects of consecration and
blessing are identical. But there is a difference in the
sacramental effects. Consecration is an act performed
by the bishop with certain prayers and anointing with oil
and chrism, whereas a blessing consists of prayers and
aspersions with holy water, which, even though reserved
to the bishop, may also be performed by priests.2 Conse-
cration, therefore, is also called solemn dedication,
whereas a blessing is a less solemn initiation.8
The liturgical books which contain the formularies for
consecrations and blessings are the Roman Pontifical and
the Roman Ritual.
the minister of consecration
Caw. i 155
§ 1. Consecratio alicuius loci, quanquam ad regu-
lares pertinentis, spectat ad Ordinarium territorii in
quo locus ipse reperitur, dummodo Ordinarius cha-
ractere episcopali sit insignitus, non tamen ad Vica-
rium Generalem sine speciali mandato, firmo iure S. R.
E. Cardinalium consecrandi ecclesiam et altaria sui ti-
tuli.
§ a. Ordinarius territorii, licet charactere epi-
scopali careat, potest cuilibet eiusdem ritus Episcopo
licentiam dare consecrationes peragendi in suo ter-
ritorio.
Our canon substantially repeats the old law, which
made it very plain that no strange bishop, even though he
Compendium
1 Cfr. Aichner,
luns Eccl, I J-i. 3-
2 Cfr. Pontifical* Rom., De rcclf
sice dedicatione sive consecratione;
Rituale Ron., lit. VIII, c. 27.
B Wernx, lut Decretal., Ill, n.
436. P- 437. «L *•
oogle
Original from
UNIVERSITY OF WISCONSI
4 ADMINISTRATIVE LAW
St
has built a church at his expense in another diocese, may
consecrate a temple outside his own territory.* Ab-
bots were forbidden to consecrate churches and altars.6
This provision is here reenacted, for even regulars have
to call in the bishop in whose territory a church is to be
consecrated. Only in case the local Ordinary, after re-
peated requests on the part of the regulars, should refuse
to perform the consecration, are they permitted to call in
another bishop, as Leo X had enacted at the Vth Lateran
Council.0
A Vicar General who is endowed with the episcopal
dignity, may consecrate sacred places only by special
commission from the Ordinary, which should be repeated
every time a consecration is to take place.
Cardinals who are not bishops may by law validly con-
secrate the churches and altars of their own title. Car-
dinals who are endowed with the episcopal character may,
in virtue of a special privilege, consecrate churches and
altars everywhere with the consent of the local Ordinary.7
An Ordinary who is not endowed with the episcopal
character may grant the faculty of consecrating places
to any bishop of the same rite. Thus a Prelate or Abbot
Nullius, if he is not a bishop, may call any bishop of the
same rite into his diocese for that purpose. The same
applies to vicars-capttular or administrators. Scde va-
cante the regulars also must apply to the latter, who shall
call in a trishop for the purpose.8
From all the ancient texts, which in this case have not
been abolished, it follows that the episcopal character is
4 CO. 1, 3i C. 16, q. 5. titled to consecrate titular churches
0 C. IO, C. 16, q. l. and altars of other cardinals; S. Rit.
6 " Dum intra," Dec. io, 1516. C. Jan. 30. 1870 (Dec. Autk.. n.
I U< 3478).
7 See can. 239, | 1, n. ao. The 8 Man/, De Locis Sacris, 1904. P.
Cardinal- Vicar of Rome is not en- 33.
§le
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1155 5
required for valid consecration, although this requisite is
of merely ecclesiastical (but universal) law. The conse-
quence .is that the Pope, and he alone, can dispense from
this law and grant the faculty to consecrate places to such
as are not bishops. Benedict XIV granted to Abbot En-
gelbert of Kempten in Bavaria the privilege of consecrat-
ing his abbey-church. A personally granted privilege
seems to be required, as Benedict XIV insinuates in his
letter.8 If an abbot claims the right to consecrate a
church, he must possess a special privilege of the Apos-
tolic See and exhibit it to the bishop who would other-
wise be entitled to perform the function.10
A consequence of this requirement is that any validly
consecrated bishop, even though he be a heretic, or a
schismatic, or under censure, may validly, though not
licitly, consecrate churches and altars.
Notice the term " eiusdem ritus," which excludes a
mixture of rites. Hence a Latin Ordinary may not licitly
grant permission, say to the Ruthenian bishop of our
country or Canada, to consecrate a Latin church.11
Observe, finally, the expression, " Ordinarius tcrri-
torii" which includes all Ordinaries, whether their terri-
tories are large or small, and also the abbots and prelates
mentioned in can. 319, § 2.
It may be added that a metropolitan has no right to
interfere with consecrations in the territories of his suf-
fragan bishops.
9" Ex tuis prtcibus," Nov. 16, U S. O., June 16, 183' (Colt. P.
1748. F.r n. 822) : " non expedire," which
10 5". Rit. C, April 14, 1674 {Dtc. means that the consecration would
Auth., n. 1505). be valid, but illicit.
oogle
Original from
UNIVERSITY OF WISCONSIN
ADMINISTRATIVE LAW
THE MINISTER OF A BLESSING
-
Can. i 156
Ius bcnedicendi locum sacrum, si hie pcrtincat ad
clerum saecularem vel ad religionem non exemptam,
vel ad laicalem, spectat ad Ordinarium territorii in quo
locus reperitur ; si ad religionem clericalem exemptam,
ad Superiorem maiorem ; uterque vero potest alium
sacerdotem ad hoc delegare.
The right of blessing a sacred place belongs (1) to the
Ordinary in whose territory the place is situated, con-
cerning all places which belong to the secular clergy, or
to non-exempt religious, or to lay persons, even though
these be an ecclesiastical corporation which constructed
the church; ,a (2) to the major superior, if the place be-
longs to exempt religious, 1. c, who are such either in
virtue of their regular character or by reason of a special
privilege.
The Ordinary as well as the religious superior may
delegate another priest, whether secular or religious,
whether pastor or not,13 to bless a place, hut not to conse-
crate it.14 Hence provincials, abbots, guardians, conven-
tual priors and all who enjoy the power of quasi-provin-
cials, may bless churches and altars either themselves or
through others.15
Can. 1157
Non obstante quolibet privilegio, nemo potest locum
sacrum consecrare vel benedicere sine Ordinarii con-
■
sensu.
a
12 S. Rit. C. Oct 7, 1645 {Dec. 14 S. Rit. C\, Oct. 7, 1645.
Auth., n. S89). » Reg. Iuria, 68, 72 in 6".
19 Ibid., and Aug. 7 187s (iWrf.,
n- 3364. «d 1).
§le
Original fro m
UNIVERSITY OF WISCONSIN
CANON 1 1 59
B
1
No one may bless or consecrate a sacred place without
the consent of the Ordinary, notwithstanding any privi-
lege.
The Ordinary whose consent is required for consecra-
tion, is the one in whose territory the church or altar is
located. This rule, we repeat, binds all, regulars and
seculars, individuals and corporalions, no matter whether
or not they have built, or helped to build, the church or
altar.18 To bless a church or altar the consent of the
Ordinary is required, as explained under can. 1156.
The name of Ordinary, in this latter case, also com-
prises the higher religious superiors.
The required consent may be given either in writing or
orally, but should, in ordinary cases, be express. In
urgent cases we believe consent may be lawfully pre-
sumed for a blessing, but hardly for a consecration, be-
cause a consecration is a pontifical right, which may not be
exercised in alien territory.17
REGISTRATION AND PROOF
Can. 1 158
De peracta consecratione vel benedictione redigatur
documentum, cuius alterum exemplar in Curia epi-
scopali, alterum in ecclesiae archivo servetur.
Can. 1 1 59
Q
B
-
0
-
§ i. Consecratio vel bencdictio alicuius loci, modo
nemini damnum fiat, satis probatur ctiam per unum
testem omni exceptione maiorcm.
§ 2. Si de ea legitime constet, nee consecratio nee
M Cc. :, 3. C, 16, q. 5; S. Rit. C-,
Oet- 7. ««45 <D*c Auth., n. 889).
it Trid., Sett. 6, c. 5, de ref.; c
t8, C. 7, '1 1 1 in:* icts one year's ftit*
petition ■ dit*nu. bat our Code con*
Uini no penalty.
oogle
Original from
UNIVERSITY OF WISCONSIN
8 ADMINISTRATIVE LAW
benedictio iterari potest ; in dubio autem, peragatur ad
cautclam.
After the consecration or blessing a report should be
drawn up, of which one copy is to be kept in the episcopal
court, and another in the archives of the church.
Consecration or blessing can be proved by one trust-
worthy witness, provided no damage is done to a third
person.
Neither consecration nor blessing is to be repeated after
legal proof has been furnished that it has taken place ; but
if there -is doubt, the act may be performed provisionally
(ad caufelam).
A sufficient proof would be the testimony of an au-
thentic document or the deposition of an eye-witness.18
Damage would be caused if a consecrated or blessed
church were given over to profane uses. Formerly one
who consecrated a church or an altar was entitled to the
tithes offered there. Hence the requirement of an un-
prejudiced witness.
Reconsccration is forbidden for an analogous reason as
rebaptism, viz.: because the ceremony imprints an indelible
character.19 For this reason canonists have taught that
if a positive doubt exists as to whether a church or an
altar has been consecrated, the consecration should take
place, and Benedict XIV sanctioned this teaching, now em-
bodied in the Code.20 The mere age of a church would
not create a positive doubt as to its not being consecrated
or dedicated. The constantly observed anniversary of the
dedication, especially if for the consecration of the main
alrar some kind of document were preserved, would make
reconsecration unnecessary, even though there were no
UC. 16, Din- i, de com.; S. Rit. 19 C 3, Di*t. 68; C. 10, Dist. L,
C, Aug. 19. I&34 »d > (Dec. Auth., de eotu.; c. 1 1 1, Dist 4, dc cons.
n. 611). 20 "lam inde," Nov. 17, 1706.
§le
f** ^ ^ tl » Original from
UNIVERSITY OF WISCONSIN
CANON 1160
authentic document and no traces of the crosses appeared
on the walls.21 If neither crosses nor documents are
available, and the church was entirely remodelled or re-
built, consecration must take place.22 If the doubt can-
not be dispersed, consecration should be performed pro-
visionally. This does not mean conditional consecration,
but, as the text says, ad cautelam, according to the for-
mula contained in the Roman Pontifical.
immunity of sacred places
Can. 1 160
Loca sacra exempta sunt a iurisdictione auctoritatis
civilis et in eis legitima Ecclesiae auctoritas iuris-
dictionem suam libere exercet.
Sacred places are exempt from the jurisdiction of the
civil authority, and the lawful ecclesiastical authority
freely exercises jurisdiction in them.
This is what is called localis imnntnitas, or exemption
from civil power in the use and administration of these
places. Even the pagans felt awe and reverence for
sacred places. The very terms Upov and sanctum instilled
respect for the spot or district set apart for the gods.
No criminal or unclean person was allowed to enter these
temetie or sacred precincts, and no animal was admitted
into them. The fact that such places were either erected
or protected by public authority shielded them from
vexation and profanation.28 All this goes to show that
there is in man what we might call a natural instinct of
11 S. Rit. C, Nov. 27, 1706 (Dec. as Cfr. Stengel, Die Grieck. Kut-
Anth., n- 2174)- XuaaltcrtUmer, 1898, p. ifi ff.; Ram-
as S. Rit, C, Dec. 17, 1875; Aug. say-LancUrn, Manual ef Roman An-
19, 1878 /.''•:-. Auth., rat. 3385, tiquitiej, p. 372 ff.
1462).
►ogle
Original from
UNIVERSITY OF WISCONSIN
io ADMINISTRATIVE LAW
St
reverence for things that belong to God. It was not
priestly arrogance, then, on the part of the Christian
Church that she claimed these natural prerogatives and
that the Christian emperors accorded them, as it were,
spontaneously. A specific exemption was the ius metatus
or right of quartening soldiers in churches. The Church
would not permit secular trials, civil or criminal, to be
held in sacred places, nor purely worldly meetings, mar-
kets, and political assemblies.24 This immunity still ex-
ists. Our States have enacted laws which protect at least
the safety and decorum of church meetings. While no
church (is '* established M here in the European sense of
the word, all are " established for the purpose of the
security of the worshippers from penalties or from moles-
tation in the act of worship."20 Church purposes in the
United States are strictly private purposes, it is true, but
they are of more than passing interest to the general
public.20 This, of course, naturally implies that the ad-
ministration and government of a sacred place belonging
to the Catholic Church must be acknowledged and carried
out according to its own constitution and laws. For with-
out such authority the important provisions in the consti-
tutions which guarantee the free enjoyment of religious
beliefs and worship to every person would become
nugatory.27 The Catholic Church cannot permit her
temples to become — as was customary before 1776 s18 —
places for town meetings, lectures, concerts, temperance
or political meetings and for other profane purposes.
2* Cfr. cc. 1, 5, X, iii, 49; c. a, century, in a Christian land, no ar-
6°, III, 33. frumont u necessary to show that
25 Cfr. /ollmann, American Ck'il church purposes are public pur-
Church Law, 1017, p. *86. poses."
29 Ibid., p. 407: "Says the Mis- IT Ibid., p. 386.
ttmri court in a dedication case: it SB Ibid., p. 407.
is presumed that in the nineteenth
jle
I , Original from
UNIVERSITY OF WISCONSIN
—
a
1
CANON 1160 ix
Here we may add some practical observations occa-
sioned by the recent influenza epidemic. The Church is
not opposed to sanitary and hygienic regulations intended
to safeguard the public health and welfare. But she can-
not recognize the authority of a local board of health to
close a church or to command the clergy to do so. Such
measures, when necessary, have to be taken through the
hierarchy, i. c, the bishop of the diocese, who should not
shirk his duty. This is an act of jurisdiction proper to
the diocesan court.
A last remark : The text does not state on what
ground the Ohurch claims immunity for sacred places,
whether by divine or ecclesiastical law. The majority of
canonists attribute it either to divine law or (at least) to
the natural dictates of reason. The latter view may be
safely defended on the basis of universal consent.
jlc
k ,1,., Original from
UNIVERSITY OF WISCONSIN
TITLE IX
-
CHURCHES
definition
Can. ii6i
Ecclcsiae nomine intelligitur aedes sacra divino cul-
tui dcdicata cum potissimum in fincm ut omnibus
Christifidelibus usui sit ad divinum cultum publicc
exercendum.
:
By the term church is understood a sacred building
dedicated to divine worship, chiefly for the purpose that
it may be made use of by all the faithful for public
services.
e
The Latin term ecclesia (from tocoAlo) was the first in
vogue among Christians for their meeting places.1
" Temple " was rarely used up to the fourth century,
probably to avoid confounding Christian places of wor-
ship with Jewish and pagan temples.
The definition of " church " in the Code contains three
characteristics: (a) sacred building, to distinguish it from
altars and furniture and common buildings; (b) dedi-
cated to divine ivorship, by consecration or solemn bless-
ing; and (c) chiefly for the purpose that it be open to
all the faithful. The last-named characteristic distin-
lCfr. I Cor. n, 12; Tertull., De the Scoteh kirk. English church, and
Vehndis Virg., 13; De Pudicitia, Gtrman Kirche arose. Other terras,
4. The term dominicum, from the like basilica and martyrium, have a
Grerk Kvptan6». was also used specific meaning at to form or kind,
early; from this latter expression
12
I Original from
y^-jOO^IL UNIVERSITY OF WISCONSIN
CANON 1163
13
guishes a church from an oratory, either domestic or
semi-public, for oratories may vie with, or even surpass
churches in size and be consecrated like them, but, un-
like churches, are intended only for certain classes of
people or certain families.3
BUILDING OF CHURCHES
Can. 1162
■
§ 1. Nulla ecclesia aediHcetur sine expresso Ordi-
narii loci consensu scriptis dato, quern tamen Vicarius
Gencralis praestare nequit sine mandato speciali.
§ 2. Ordinarius consensum ne praebeat, nisi pru-
denter praeviderit necessaria non defutura ad novae
ecclesiae aedincationem et conservationem ad mtni-
strorum sustentationem aliasque cultus impensas.
§ 3. Ne nova ecclesia ceteris iam exsistentibus
detrimentum affera t, maiore fidclium spirituali utilitate
non compensatum, Ordinarius, antequam consensum
praebeat, audire debet vicinarum ecclesiarum rectores
quorum intersit, firnio praescripto can. 1676.
§ 4. Etiam sodales religiosi, licet consensum consti-
tuendae novae domus in dioecesi vel civitate ab Ordi-
nario loci retulerint, antequam tamen ecclesiam vel
oratorium publicum in certo ac determinato loco aedi-
ficent, Ordinarii loci licentiam obtinere debent.
Can. 1 163
Benedicere et imponere primarium ecclesiae lapidem,
ad eos spec tat, de quibus in can. 1156.
IS. Hit C, May i8, 1883, ad IV, 5; June 5. i»99 Wic. Auth., no.
1574. 4°*J>-
jle
Original from
UNIVERSITY OF WISCONSIN
14 ADMINISTRATIVE LAW
Can. i 164
§ 1. Curent Ordinarii, audito etiam, si opus fuerit,
peritorum consilio, ut in ecclcsiarum aedificatione vel
refectione serventur formae a traditione Christiana
receptae et artis sacrae leges.
§ 2. In ecclesia nullus aperiatur aditus vel fenestra
ad laicorum domus ; locaque, si adsint, subtcr ec-
clesiae pavimcntum aut supra ecclesiam, ad usum mere
profanum ne adhibeantur.
c
Can. 1 162 provides that the consent of the Ordinary
must be obtained for building a church. No church, says
§ i, may be built without the express consent, in writing,
of the diocesan Ordinary. The Vicar General cannot
give this consent without a special mandate from the
Ordinary.
This is partly old and partly new law, as far as the
written consent is concerned. The Council of Chalcedon
forbade religious to construct oratories without the con-
sent of the diocesan.5 Other synods also insist upon this
formality.*
§ 2 rules that the Ordinary shall withhold his consent
until he is convinced that the necessary means for build-
ing and maintaining a new church, and for supporting
the ministers and defraying other expenditures of reli-
gious worship, will not be wanting. This, too, is ancient
practice. Ancient councils insisted on the necessary
dowry (dos) for every new church.8 This requirement
is also stated in the Roman Pontifical* The Ordinary is
SG 10, C 18, q. 2. 5C. 26, C. 16, q. 7; c. 8. x. III,
4 Cfr. c. 44, C. 16, q. 1 (Worms); 40.
C. 9, Dist. 1, de cons. (Orleans). « P. II, tit, dr bentdictiont et im.
fositione primarii l*pidu.
jle
£ * ^ , ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 1162-1164
15
therefore most solemnly charged to examine the financial
prospects of a new church.
§ 3 of can. 1 162 adds another condition for the consent:
In order that the new church may not become a detriment
to churches already existing, if the loss would not be
compensated by the spiritual advantage of the faithful,
the Ordinary shall, before giving his consent, hear the
interested rectors of the neighboring churches, with due
regard, however, to can. 1676. This canon is a repetition
of an old Roman Law which passed into the Decretals/
and rules that everyone, — in our case every rector of a
church already in existence, — who believes himself to be
injured by the erection of a new church, may sue for an
injunction before the judge. The effect is somewhat
similar to legal estoppel, but is only temporary, until
the judge has decided the case. But although the new
building should not be continued while the case is pend-
ing, the builder may go on with the work, provided he
gives security to restore everything to the condition be-
fore the work commenced in case the sentence should be
against him. Our Code grants two months to the plain-
tiff or objector to prove his contention. This term may
be prolonged or shortened by the competent judge.
Hence the bishop has to listen to the objections of the
interested rectors, summon the parties and witnesses, in
fact, conduct an ecclesiastical trial, at least in summary
form.
§ 4 mentions religious who wish to build a church or
public oratory. These, although they have already ob-
tained the consent of the local Ordinary for establishing a
house in the diocese or city, must obtain the permission
of the local Ordinary before they can build a church or
7 Cf r. Dig. 39, IS Cod. VIII, 10, tiatione; Gasparri, De SSma Each.,
14; X, Vj 3-', dt novi opcris ttnn- 1897, I, n. WJh p. 81.
jle
Original from
UNIVERSITY OF WISCONSI
■
16 ADMINISTRATIVE LAW
public oratory in a certain and specified place. Concern-
ing this we have said enough elsewhere,8 and nothing we
have said needs modification. We will only add a case:
A religious community had received permission to build a
house in a certain city. They did so, and opened a public
oratory within the boundaries of a parish church as yet in
the " catacomb " or basement stage. This drew some
substantial and perhaps niggardly parishioners to the new
chapel, who contributed neither to the oratory of the re-
ligious nor to the parish church. The solution is evident.
The bishop had to stop the new chapel or else cut off part
of the parish and give it to the religious.
Note that after the promulgation of the Code no re-
ligious, however exempt, can escape the law; and if the
bishop granted permission before the promulgation, he
may now withdraw it, provided the building was not com-
menced or the site changed. For the Code says : in a
certain and specified place. Besides, under § i of can.
1 162 written consent is required.
Can. 1 163 rules that the blessing and laying of the cor-
nerstone belongs to those who are entitled to bless the
church. Hence the Ordinary or his delegate, or the su-
perior of exempt religious or his delegate, may bless and
lay the corner-stone.
Can. 1 164 admonishes Ordinaries to see to it that new
churches are built and old ones repaired in accordance
with the time-honored laws of Christian architecture and
the rules of sacred art.
This can best be explained in the school-room, where
lectures on Christian art should be given. The earliest
form of church building was the basilica, which was
8 Cfr. Vol. Ill, p. So, can. 497. mission of the Holy Sec for building
Formerly they only needed the per- a monastery: C 4. 6% V, 7.
§le
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 1 164 17
evolved from the ancient Roman dwelling-house.0
About the eighth century the Romanesque style absorbed
the basilica, and later the Gothic style added its distinct
and pointed features. Out of these arose two mixtures,
vis., Barocco and Rococo, of which the former may have
some claim to the name of traditional architecture,
whereas the extreme Rococo can hardly be called any-
thing else but a mental and architectural aberration.
Then there is the Byzantine style, which has found favor
here and there, even in our country, and certainly comes
up to the requirements of Christian art.
Our text adds that, if necessary, experts should be con-
sulted. This is a dictate of common sense. The rules of
art demand that the style should fit into the landscape and
its surroundings. The financial resources also must be
considered. But a well-trained taste will be able to erect
a monument even of cheaper material. Finally the prac-
tical and acoustic side should receive attention. Too
many and heavy pillars are hardly practicable for a parish
church ; too great a distance between people and altar is
not compatible with the all-absorbing idea of the sacrifice.
These are merely suggestions based on experience.
§ 2 of can. 1 164 says that no opening or window may
lead from the church into the house of lay people and that
the space underneath or above the church should not be
used for profane purposes.
As to the first clause it may be noted that an episcopal
palace l0 or priest's residence may be built in such a way
that a gate or window leads into the church. Religious,
with the permission of the bishop, may have a choir built
in their house leading into the church, from which they
may assist at Mass or pay their visits to the Bl. Sacrament.
9 Cfr. Lowrie, Monuments of the 10 This was formerly refused; cfr.
Early Church, iqoi. p. 83 ff. Gasparri, /. r., n. 137. P. 83.
ogle
% ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
18 ADMINISTRATIVE LAW
The next clause may cause surprise to more than one
pastor, for it would seem to affect the so-called combina-
tion-buildings (church and school combined) so often
found here. If there is nothing else attached to such a
building, we believe it is not forbidden, for the text says,
* ad itsum mere profanum," which cannot be applied to a
parish school. The case is different if the basement or
the hall above the church would be used for merely pro-
fane meetings or entertainments. The decisions are de-
cidedly against such use, even if the basement were only
used as a theatre for the school-children.11 The reason
is that the church together with the basement is, as a
whole, consecrated (per modum unitts). The decisions
have consecration in view. Do they apply to churches
which are blessed? There is no doubt that, as stated
above, the canonical effect of consecration and blessing,
as far as the church is concerned, is the same. How-
ever, there is a difference between consecration and bless-
ing, and we hardly believe that a combination building
could be consecrated. Besides, as shall be seen under
can. 1 172. the defilement of a church must affect the
church itself. Hence it is commonly taught that the sac-
risty or tower of a church, or a crypt which has neither
chapels nor a burial place, is not polluted by acts per-
formed therein.12 From this it would seem to follow that
the basement or hall of a church is not, strictly speaking,
included in the church proper. The consequence would
be that the hall or basement of the church (if this were
merely blessed) might be used for purposes which would
otherwise he excluded.
We would also draw attention to the fact of necessity
which exists in many places. However, we must add
11 S. Rit. C, May 4, '88a (Dec. 12 Many, /. c, p. 78 ff.
Aulh., n. 354.6)-
"■
>Ic
% ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1165
*9
that the intention of the lawgiver certainly is to prohibit
merely worldly uses which have no connection with the
church. Dances, balls, and noisy banquets should not
be held in these places.
We add some decisions. A dormitory, even for cleri-
cal students, is not permitted immediately above the ceil-
ing of the chapel or church ; only if it is separated by an
intervening space or room provided with solid walls, may
it be placed above the church.18 There should be no cellar
under the church.1*
■
DEDICATION OF A CHURCH
Can. 1165
§ 1. Divina officia celebrari in* nova ecclesia neque-
unt, antequam eadem vel sollemni consecratione vel
saltern benedictione divino cultui fuerit dedicata.
§ 2. Si prudenter praevideatur ecclesiam conver-
sum iri ad usus profanos, Ordinarius consensum eius
aedificationi ne praebeat, aut saltern, si forte aedificata
fuerit, earn ne consecret neve benedicat.
§ 3. Sollemni consecratione dedicentur ecclesiae
cathedrales et, quantum fieri potest, ecclesiae collegi-
atae, conventuales, paroeciales.
§ 4. Ecclesia ex ligno vel ferro aliove metallo
benedici potest, non auteni consecrari.
§ 5. Altare consecrari potest etiam sine ecclesiae
consecratione; sed una simul cum ecclesia debet saltern
altare rnaius consecrari aut altare secundarium, si
maius sit iam consecratum.
§ 1. Divine service may not be held in a new church
13 S. Kit. C, May n, 1641; July
*7, 1878 {Dee. Aulh., nn. 756.
3460).
14 S. Kit. C, Aug. jr. 1867 (ibid.,
n. 315O.
oogle
Original from
UNIVERSITY OF WISCONSIN
ao ADMINISTRATIVE LAW
before it has been solemnly consecrated or at least dedi-
cated to the worship of God by a blessing.
This law dates back to remote antiquity. Eusebius, the
" Father of Church History/' tells us that, soon after the
persecutions had ceased, churches were dedicated in the
presence of gatherings of bishops, priests, and a great
multitude of lay-people, who counted distance nothing,
being united in love and joy on the occasion. He inserts
his own discourse delivered at the dedication of a church
at Tyre.15
No special ritual for church dedications can be traced
before the eighth or ninth century.. According to the two
most ancient Ordines Rotnani, the chief ceremony ap-
pears to have been the translation of relics. A descrip-
tion of the liturgical act of dedication in use in France at
the beginning of the eighth century shows that it closely
resembled the present rite, as found in the Roman Pon-
tifical.18 Thus we may say that, although at first churches
were perhaps dedicated by celebrating the divine mys-
teries, yet from the eighth century onward a special ritual
was followed, which finally developed into the present
rite.
Dedication then is performed by either consecration or
blessing.
Consecration essentially consists in anointing with
chrism the twelve crosses which are placed on the walls
or pillars of the church, with the formula : " Sanctificctur
et consecrctur hoc templum in nomine Patris et Filii et
Spiritus Sancti, etc." 1T The bishop should go around the
whole church three times. If this cannot be done, he
-"■
15 Hist. Eecl., X, 3r » **- (cfr. 18 Cfr. Duchesne-McClurc, Dhine
Dit Griech. Christl. Schriftst tiler. Worship, 1903, p. 407 ff.
by Schw&rz-Mommsca, Vol. II, 860 ir S. Rit. C, April 12, 1614 (D«.
ff.) Autk., n. 319)-
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1 165
21
—
a
N
Aould at least go<about those parts which are accessible.38
If (c. g., on account of bad weather) the prayers and
sprinkling of the outside walls cannot take place, what is
to be done? The S. Congregation answered as follows:
If possible, recourse should be had to the Holy See; but
if the consecration cannot be delayed, the solemn function
may begin in the sacristy, or in the vestibule, or in some
other convenient place, and the outside walls should be
sprinkled as well -as it can possibly be done ; but the
people are not to be admitted into the church from the
beginning of the ceremony.1* One and the same bishop
must consecrate the church and the main, or at least one,
altar"
Blessing a church consists essentially in sprinkling the
upper and lower part of the walls, either inside or outside,
with holy water. All churches and public oratories must
be at least blessed according to the formula in the Roman
Ritual." Unless they are blessed no titular feast may be
celebrated." Nor does the fact that the cemetery is
blessed create a presumption in favor of the church."
Before the blessing is imparted, divine service may not be
celebrated in a church. This means that Mass may not
be said, the sacraments may not be administered, and
there is to be no preaching ; for these offices especially
constitute divine worship (cfr. can. 2256).
§ 2. If it can be reasonably foreseen that a church will
be turned to profane uses, the Ordinary shall not consent
to its being built, nor consecrate or bless it after it is
built. There would be room for prudent fear if a church
IBS. Rit. C, Sept. 19. 1665. »d « 21 8, Rfc C, June 5. '«99 {ibid.,
(ibid., n. ijai). n. 4^5).
IAS. Rit. C, Feb. aa, 1888 (ibid., 22 S. Rit. C. Sept. 1, 1871. »d II.
n. 16). 3 d'frW., n. 3255).
20S. Rit C, March 3, 1866 (ibid., 23 S. Kit. C, Feb. 21, 1896, ad
n. 314a). IV, CMC, d. 3B88).
oogle
Original from
UNIVERSITY OF WI5CGNSI
22 ADMINISTRATIVE LAW
St
a
or public oratory belonged to a private family and thus be
liable to transfer and subsequent profanation by way of
sale or alienation.24
§ 3. Cathedral churches and also, as far as possible,
collegiate, conventual, and parish churches, should be
solemnly consecrated.
§ 4. Churches built of wood or iron, or some other
metal, may be blessed, but not consecrated.
As to rural chapels and oratories of confraternities or
pious associations, they may be consecrated if built of
stone or brick, but if the bishop does not wish to conse-
crate them he may delegate a priest to bless them.25.
Churches built of reinforced concrete (cacmentum ar-
malum) may be solemnly consecrated, provided that the
places for the twelve crosses and the door posts of the
main entrance be of stone.26
§ 5. An altar may be consecrated even if the church is
not consecrated; but together with the church the main
altar (or, if the main altar is already consecrated), a side
altar must be consecrated. This section embodies the
substance of former decisions of the S. Congregation, as
summarized in a decree of the S. Rit. XT., June 8, 1896.
This decree states that the consecration of a church with-
out the simultaneous consecration of at least one altar is
valid but illicit if performed without Apostolic dispensa-
tion.27 The reason is to be sought in the integrity of the
whole ceremony.
24 S. Rit. C, May 4, 188a, ad I 26 S. Rit. C, Nov. u, 1909 (n.
{ibid., n. 3S4«. 4*40).
sbS. Rit C, Aug. 7, 1875, md i 9T Dee. Auth„ a. 3907 (1U0 do.
(ibid., n. 3364). Xjai. 2177).
--.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 11GG
23
the consecration of churches and altars
Can. 1 166
§ 1. Ecclesiarum consecratio, quamvis quolibet die
fieri possit, decentius tamen diebus dominicis aliisve
festis de praeccpto peragitur.
§ 2. Episcqpus consecrans ct qui petunt ecclcsiam
sibi consecrari, per cum diem qui cansecrationem
praecedit, ieiunent.
§ 3. Cum consecratur ecclesia vel altare, Episcopus
consecrator, licet iurisdictione in territorio careat, in-
dulgentiam concedit unius anni ecclesiam vel altare
visitanti bus in ipsa consecrationis die; in die verb
anniversaria quinquaginta dicrum, si sit Episcopus;
centum, si Archicpiscopus ; biscentum, si S. R. E.
Cardinalis.
§ 1. Although churches may be consecrated on any
day, it is meet that Sundays or holydays of obligation be
chosen for that purpose.
§ 2. The consecrating bishop as well as those who have
petitioned for consecration, shall fast on the day preced-
ing the consecration.
This fast is of strict obligation. It is personal as well
as local.28 Thus if a founder asks the bishop to conse-
crate a church or public oratory, he is bound to fast the
day before; if a chapter or corporation (v. g., parish) or
religious community ask for consecration, the whole chap-
ter, etc., arc bound to fast, including those who voted
against the consecration.80 But the chaplain of religious
communities of sisters who asked for the favor would not
have to fast, even though he submitted the petition to the
te S. Rit. C.j July 29, 17P0; Sept.
12, 1840 (Dec. Auth.. nn. 2510).
20 Many, /. c, p. 33.
>gle
Original from
UNIVERSITY OF WI5C0NSI
24 ADMINISTRATIVE LAW
St
bishop. Of course, if he had asked for it personally, he
too would be bound to fast.
§ 3. At the consecration of a church or altar the conse-
crating bishop, though he may not have jurisdiction over
the territory, grants an indulgence of one year to all
who visit the church or altar on the day of the consecra-
tion; of fifty days for the anniversary of the consecra-
tion; of 100 days if he be an archbishop, 200 if he be a
cardinal.
ANNIVERSARY OF CONSECRATION
•a
Can. 1 1 67
■
Festum consecrationis ecclesiae quotannis celebretur
ad normam legum liturgicarum.
The feast of the consecration of a church is to be cele-
brated annually according to the rubrics.
The latest decrees 80 concerning this subject ace: Pro-
vided the cathedral church has been consecrated and not
merely blessed:
(a) The feast of the dedication is a primary feast and
festtttn Domini;
(b) The anniversary must be celebrated as a first-class
feast with octave throughout the diocese by the secular
clergy and also by the religious clergy if the latter follow
the diocesan calendar; if they have their own calendar,
they must cerebrate the anniversary of the dedication of
the cathedral as a feast of the first class without octave ;
(c) The -anniversary must .be celebrated on the day
proper -and not transferred to a Sunday ; 3l
(d) The -anniversary of the dedication of the cathc-
-"■
10 S. Rit. C. Nov. 1, 191 1 (A. remembered, the Ordinary, with the
Ap. S., Ill, 646 f.). advice of the chapter, may setnel pro
Jl If the day is not recorded or semper assign a day.
G| Original from I
OOglt UNIVERSITY OF WISCONSIN
CANON 1168 25
a
dral must he celebrated separately from the dedication of
all the churches of the diocese; for the latter feast (dedl-
catio omnium ceclesiarum dioeceseos) a day may be desig-
nated by the Ordinary;
(e) The same rule must be observed by religious or-
ders or congregations with regard to the celebration of the
dedication of all the churches of their institute;12
(f ) The feast of the dedication of all the churches of
a diocese (or institute) must be understood in the sense
that each church celebrates its own dedication.83
titles and titular feasts
Can. 1 168
§ 1. Unaquaeque ecclesia consecrata vel benedicta
suum habeat titulum; qui, peracta ecclesiae dedica-
tione, mutari nequit.
§ 2. Etiam festum tituli quotannis celebretur ad
normas legum liturgicarum.
§ 3. Ecclesiae dedicari Beatis nequeunt sine Sedis
Apostolicae indulto.
§ 1. Each consecrated or blessed church must have its
own title, which cannot be changed after the dedication.
§ 2. The titular feast is to be celebrated annually ac-
cording to the rubrical laws.
§ 3. Churches cannot be dedicated to a Beatus without
an Apostolic indult.
Titulus 3< is the name by which a church is known and
distinguished from other churches. It is not unlike the
name given in Baptism. If the name is that of a person,
82 S. Rit C, Oct. 28, 1913, I, 3. »*Cfr. Gasparri, D* SSmo Each.,
c. 1. {A. Ap. S., V, 458). 1907, I, n. 137 ff-; Many, I. c, p.
as S. Rit. C, Feb. is, 1914 (A, 3a ft.
A*. S\. VI, 76).
►ogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
26 ADMINISTRATIVE LAW
this person is called the patron of the church, provided
he or she be a Saint {persona creata, non increata), for
patron signifies advocate, which does not apply to a Di-
vine Person.
Titles of churches may be : the Blessed Trinity or one
of the three Divine Persons,88 Jesus Christ or one of the
biblical mysteries, the Blessed Virgin or any one of her
special attributes, the angels and saints or some conspicu-
ous events in their lives, as, for instance, the conversion
of St. Paul.
When two saints are chosen as patrons for one church,
they arc generally taken per modum unius, e. g., SS.
Philip and Jaines. But if at the dedication two different
saints are chosen dhisitn, they are celebrated on their re-
spective days. Sometimes it happens that a secondary
title or patron is added because it has been transferred
from a church forsaken or destroyed.
The text says that the title cannot be changed. For the
title being chosen at the laying of the corner-stone and
made stable or perpetual at the dedication, is the distinc-
tive and permanent attribute of a church. Hence it has
been decided more than once that the bishop cannot of his
own accord change the original title, but an Apostolic
indult is required for the purpose.30 If the Holy Sec
adds the title of an abandoned church to another, the title
thus added is a secondary one.37
§ 3 says that no church shall be dedicated to a Beatus,
%. e„ one who is beatified, but not yet canonized by a for-
mal decree of the Holy See. In the case of such as have
been venerated as saints by a constant tradition before the
35 God the J-ather is, as far as we Sept. M, 1857, ad 17 (f. c. nn.
know, not chosen, because of the *7'9. 305^)-
fact thai He li not rfpre*ent*H a* 8" S. Rtt. C, April jo, 181a, n. 1
aent (defectu mifsionis divinat). {ibid., n. 2619; t. IV, p. aai),
86 S. RH C, Sept. 6, 1834- ad ^:
-"■
jle
£ * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 1168
27
-
--
time of Alexander III (1159-1181), the public venera-
tion takes the place of the formal decree of the Apostolic
See " and they may therefore be chosen as patrons for
churches.
§ 2 concerns the titular feast. The chief rules as to
that are the following:
1. The titular feast of the cathedral church must be
celebrated with octave by the whole clergy of the diocese,
including those religious who follow the diocesan calen-
dar. Regulars (not religious who have no calendar of
their own) must observe the feast as one of the first class,
but without octave, if they have their own calendar.3*
This celebration includes office and Mass.
2. The church whose clergy is obliged to observe the
feast is any consecrated or blessed church. Oratories,
either public or semi-public, are included, provided they
are either consecrated or solemnly blessed; likewise epis-
copal chapels, oratories of seminaries, hospital chapels,
chapels of religious houses, etc.*0
3. The clergy obliged to say the office and Mass of the
titular feast are : (a) the pastor and his assistants.41 (b)
Missionaries assigned to several missions, but residing at
one, are bound only to the feast of the residential
church.42 (c) Rectors, seminary professors, and students
who live in the seminary, must recite the office of the
seminary church."
4. Regulars must celebrate the feast of their own
church;*4 but if they merely live in a house adjoining a
•8 Many, I. c., p. 54 f.
*» S. Hit. C, Nov. 11, ign (A.
Ap. S.. III. 647 i).
40 S. Rit. C. June 5. 1899 (n.
4025).
41 S. Rit. C Sept. 2, 187 1; Aug.
11, 1877 (ibid., nn. 3-*55. 343«>.
42 S. Rit. C, Aug. 25, :88a; Feb.
27* '883 <iWrf., on. 3554, 357O-
43 S. Rit. C. Feb. 37. 1847 (ifcirf.,
n. 2939)-
44 S. Rit. C, Sept. t8, 187". ad 1
In. 3437)-
.;Ie
Original from
UNIVERSITY OF V/ISCONSI
s8 ADMINISTRATIVE LAW
church which they do not own, they are not allowed to
recite the office of that church." A religious community
in charge of a public church must recite the office of the
titular feast of that church with octave.4*
5. Chaplains of sisters are not bound to say the office
of the titular feast of the chapel which they serve.
6. The bishop must recite the office of the titular feast
of the cathedral church, and if he has two bishoprics
aeque principalitcr united, 'he has to recite the office of
both cathedral churches, if they have different titles.
If a church is simply called " St. Mary's," the proper
title is the Assumption ; " Our Saviour's " is celebrated on
the feast of the Transfiguration."
~
church bells
Can. 1 160
§ 1. Cuilibet ecclesiae campanas esse convenit,
quibus hdcles ad divina officia aliosque religionis actus
invitentur.
§ a. Etiam ecclesiarum carnpanae debent consecrari
vel benedici secundum ritus in probatis liturgicis libris
traditos.
§ 3. Earurn usus unice subest ecclcsiasticae aucto-
ritati.
§ 4. Salvis conditionibus, probante Ordinario, ap-
positis ab illis qui campanam ecclesiae forte dederint,
campana benedicta ad usus mere profanos adhiberi
nequit, nisi ex causa necessitatis aut ex licentia Ordi-
narii aut denique ex legitima consuetudine.
§ 5. Quod ad campanarum consecrationem vel ben-
c
o
a
* '■ Caspar ri, /. c, p. 96-
40 S. Rll C. April 7. 1876. ad IV (n. 3397)*
47 Gasparri, I. c, p. 95, 97-
gle
f** ^ -. J,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1 169
29
edict ionem attinet, scrvctur praescriptum can. n 55,
1 1 56.
§ I. It is becoming that every church have bells, by
which the faithful may be called to the divine service and
other religious acts.
§ 2. Church bells must be either consecrated or blessed
according to the rites prescribed in approved liturgical
books.
§ 3. Their use is regulated exclusively by the church
authorities.
§ 4. Aside from the stipulations made by the donor
with the approval of the Ordinary, a blessed bell cannot
be used for merely profane purposes, except in case of
necessity, or by permission of the Ordinary, or by lawful
custom.
§ 5. The consecration or blessing of bells is governed
by can. 1155 and 11 56.
We need not dwell on the origin of bells. Suffice it to
say that from the word " signum," used in ancient monk-
ish rules,** to campana, or bell proper, which appears in
the Liber Pontificalis under Stephen II (7S2~757)t there
lie about 250 years.49 The eighth century witnessed the
development which gave rise to the use of bells for
churches as we know it. Complaint was made by the
regulars against prelates who forbade religious to have
church bells, and Pope Gregory IX put an end to these
molestations.50
§ 1 simply affirms the convenience and propriety of
having bells in every church, whether in charge of secu-
lar or religious clergy. Nothing is said about their num-
ber or size.
4* Reg. S. Bmed., c. 43.
« Cfr. CM. Encyc, II, 418 fl.
Bells ire often called notac, which
is a reminder of the legend that St-
Paulinus of Nola invented them.
60 C. 16, x, V, If.
>ogle
Original fro ni
UNIVERSITY OF WISCONSIN
30 ADMINISTRATIVE LAW
§ 2 mentions the consecration and blessing of bells,
which, as § 5 enacts, must be regulated according to can.
1 155 and 1 156.
The formula of consecration is found in the Pontificate
Roma num. It should be used for the bells of consecrated
churches.81
According to can. 1155, the consecration of bells is re-
served to the local Ordinary, and delegation to a simple
priest can only be given by the Holy See.52
There is also a formulary for blessing bells in the Ro-
man Ritual.53 It is intended for bells to be used for
church or chapel purposes.54 For this function the Ordi-
nary or an exempt religious superior may delegate any
priest without recourse to the Holy See.05 If the conse-
cration is performed on several bells, the washings and
anointings are made per modum uniits during the recita-
tion of the Psalms. The water must be blessed for each
function, but not for each bell, if several are consecrated
at the same time.
If a delegate performs the consecration and has re-
ceived delegation for one bell only, whilst there are sev-
eral, delegation for the others may be presumed.
If, for some reason, there is no water blessed by the
bishop available, the delegate may, in case of necessity,
bless water himself."
One delegated to consecrate bells must strictly follow
the Pontificate ; he must not omit the anointings or muti-
a
Bi S Rit. C tan. 22, 1908 Wee. 35 It is not becoming that the
Auth., n. 4211). biihop in pontificalibus should climb
52 S. Rit. C. April 19. 1S87 (ibid.. a ladder to ble*s belli which cannot
n. 1781). The anointinff may not be be taken down; S. Rit. C, July i6r
omitted. 1594 (/. r., n. 5a).
63 See cd. Pustet, 1913. P- 77* «• »« S. Rit. C, April 14. 1885 (»•
54 There is also a blessing of hell 36 ■ ■ ;
not intended for church uses; sec
td. cit., p. 84/
"-.
jle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON -1169
3i
late or change the formula, and he must employ a
deacon."
Nothing forbids the consecration of bells made of pure
iron or steel."
Bells consecrated or blessed for the service of churches
or chapels, are strictly sacred things and, as such, subject
to the exclusive jurisdiction of the Church. They must
not be rung for merely secular purposes, worldly fes-
tivities, political meetings, executions, etc. Their guar-
dian is the pastor or the sacristan canon of the cathedral
chapter, who, in case of doubt, especially when serious
consequences are to be apprehended, is bound to report to
the Ordinary.
§ 4 leaves a wide margin in regard to the use of church
bells, (a) The will of the founder must be respected, if
any stipulations have been made with the approval of the
bishop, (b) Necessity justifies the ringing of church
bells in time of flood, fire, war, etc.58 (c) The permis-
sion of the Ordinary may he given for any laudable pur-
pose, e. g.j to celebrate a victory or the restoration of
peace, the return of soldiers, civic festivals, etc. (d)
Lawful custom sanctions the use of church bells for any
of the aforesaid or similar purposes.
But it must be emphasized that the ringing of bells con-
secrated or blessed for church purposes cannot lawfully
be dictated by the civil authorities, since, as said above, by
consecration or blessing these objects have a sacred char-
acter imprinted upon them.
The question whether bells used by a church are its
property or belong to some one else can sometimes be
HT S. Rit. C, June aj, 1853 <n-
3015).
58 S. Rit. C, Feb. 6, 1858 (n.
J067).
99 In thai cose the sexton or any
parishioner may ring" the bell with-
out asking the pastor or bishop, es-
pecially if there are no other meani
of communication.
gle
Original fro rn
UNIVERSITY OF WI5C0NSI
32 ADMINISTRATIVE LAW
determined only by the intention of the founder, but un-
less the stipulated and proved intention of the founder80
makes an exception, the control of church bells lies solely
with the ecclesiastical authority, i. e., the Ordinary of the
diocese.
loss of consecration or blessing
Can. i i 70
Consecrationem vel benedictionem ecclesia non amit-
tit, nisi tota destructa fuerit, vel major parietum pars
corruerit, vel in usus profanos ab Ordinario loci
redacta sit, ad norman can. 1187.
~
"-.
A church does not lose its consecration or blessing
unless it is totally destroyed, or the larger part of the
walls has collapsed, or the Ordinary has turned the
building over to profane uses, according to can. 11 87.
It would be equal to entire destruction if the whole
wall, apse and roof had been removed."1 But a partial
repair of, say, two-fifths of the walls would not require
re-consecration. Thus, e. g., if the framework or joists
of a church were consumed by fire, or the framework of
the tower had fallen upon the arch of the middle aisle and
damaged the walls, no reconsecration would be required."
Even if the whole church is successively repaired, re-
consecration is not required, provided each part repaired
is smaller than the parts not repaired.83 Furthermore,
although the whole plastering (intonaco) were removed
aoZollmann, American Ch'it ei S. Kit. C, Sept 4. 1875 (n-
Church Low, 1917, p. 374 f. If the 337^).
civil authorities should ask the «2 S. Rit. C, July 13, 1883 (n.
church authoritiei to moderate the 35°4)-
ringing of belli, no one would object os S. Rit. C, Aug. 31, 1872 (n.
to »uch a petition, provided it were j- ''■>'».
reason a
Me.
Go >gle
j % Original from
UNIVERSITY OF WISCONSIN
CANON 1 171
33
together with the crosses, and new plastering, stucco, or
marble substituted, no re-consecration or re-blessing
would be necessary; but the crosses should be painted
anew or replaced by new ones." Even if the church is
considerably enlarged and interiorly embellished with
marble or stucco, as long as the old walls remain in the
proportion of 3 to 2 or 5 to 3, no re-consecration or
re-blessing is required, though the crosses, as stated
above, must be renewed.65
As to the reduction of a consecrated or blessed church
to profane uses we refer to can. 1187. The Ordinary
alone can do this, and hence, if a church was turned
over to profane uses by human malice or violence, it
may be called defiled, provided Can. 1172 is verified, but
it is not execrated, and execration is here to be under-
stood.66
EFFECT OF CONSECRATION OR BLESSING
Can. 1 171
In sacra aede legitime dedicata omnes ecclesiastici
ritus perfici possunt. salvis iuribus paroccialibus,
privilegiis et legitimis consuetudinibus; Ordinarius
autem, pracsertim horas sacrorum rituum, potest,
iusta de causa, praefinire, dummodo ne agatur de ec-
clesia quae ad religionem exemptam pertineat. firmo
praescripto can. 609, § 3.
One of the effects of consecration or blessing is that, in
every sacred edifice properly dedicated, all ecclesiastical
rites may be performed, with due regard to parochial
84 S. Rit, C, May 4, 1882; June 3651); this holds good even if the
8, 1896, ad II; Aug. 9, 1897 (/. c, primary intention was to repair or
■n. 3M5. 3007, 3062). enlarge the whole church.
88 S. Rit. C., Jan. 16, 1886 <n. 88 Many, /. c, p. 66.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
34 ADMINISTRATIVE LAW
rights, privileges, and lawful customs. But the Ordinary
may, for a just cause, determine the hours of service,
provided the church does not belong to exempt religious.
This law comprises every church or public oratory duly
consecrated or blessed. The ecclesiastical rites which
may be performed in such sacred edifices are the divine
offices mentioned in can. 1165, § 1.
The Code adds : sali'is iuribus paroecialibus, privilcgiis
et legitimis consttetudimbus. This means that a church
or public oratory may be solemnly consecrated or blessed,
yet, as long as it is no parish church, no parochial rights
can be exercised therein, unless the parish priest should
choose it for parochial functions. Besides it may happen
that, for instance, a confraternity enjoys certain privileges
for its members, e. g., the burial right may be attached to
a church, even though it is not a parish church.
Lawful custom may introduce rights which might
otherwise be claimed by the parish church, for instance,
that of having a baptismal font?1
As to the hours of service, it has been more than once
decided that the bishop may, either at a synod or outside,
determine the hour of the parochial Mass, as well as for-
bid that Mass be said in secular chapels before the paro-
chial Mass. However, the S. Congregation has repeat-
edly urged pastors to say Mass at hours convenient for
the faithful. The pastor is not entitled to forbid that
Mass be said before the parochial Mass.08 It was de-
clared that an archpriest has no right to forbid chaplains
of a public oratory to say Mass before the parochial
Mass, unless this oratory was subject to the parish church,
whose archpriest attempted to enforce the prohibition in
question.00
OTCfr. S. C. C, Mar 17. 1749 «8 Benfd. XIV. Inst. 44. nn. 0 ff.
(Richtcr, Trid., p. 131, n. 8); can. «B S. Rit. C, July n, 1643 (n.
775- 84a).
■■rfbyC- jle
j % Original fro m
UNIVERSITY OF WISCONSIN
CANON 1 172
35
Exempt religious, even though warned by the bishop,
are not obliged to abstain from celebrating Mass or per-
forming other functions even while the bells are ringing
for the parochial Mass. Thus the S. C. Concilii has de-
cided several times.70
Our canon refers to can. 609, § 3, which has been
sufficiently explained in Vol. Ill of this Commentary.
DESECRATION OF A CHURCH
Can. 1172
§ x. Ecclesia violatur infra recensitis tan turn acti-
bus, dummodo certi sint, notorii, et in ipsa ecclesia
positi:
i°. Delicto homicidii;
a°. Iniuriosa ct gravi sanguinis effusione;
30. Imp iis vel sordidis usibus, qui bus ecclesia ad-
dicta fuerit;
40. Sepultura infidelis vel excommunicati post sen-
tentiam declaratoriam vel condemnatoriam.
§ a, Violata ecclesia. non ideo coemeterium, etsi
contiguum. violatum censetur, et viceversa.
By desecration (pollutio ecclesiac, as it was formerly
called) is here understood a moral violation of a church
by diverting it from a sacred to a profane use. It is in-
duced only by acts described in the law and differs from
execration in as much as the latter entails the loss of con-
secration or blessing, whilst desecration only requires
reconciliation or rehabilitation.
Up to the time of the Decree of Gratian no clear dis-
tinction can be established between desecration and exe-
cration, as may be seen from the canons the Master
TOCfr. Richter, Trid., p. 136, n. 45.
Original from
UNIVERSITY OF WI5CGNSI
36 ADMINISTRATIVE LAW
alleges.71 The term "pollutio" does not occur in the
classical texts of Gratian, but was probably brought
in by the glossators. Violatio is used by Pseudo-
Hyginus.72 Pollutio and reconciliatio are the terms em-
ployed in the Decretals/8
The Code has apparently omitted from the list of acts
which induce violation the setninis effusio,14 but instead
of it has inserted a new mode of desecration, which can
only be determined by subsequent practical legislation.75
§ I. A church is violated (or desecrated) by the fol-
lowing acts, provided they are certain, notorious, and
committed in the church itself, to wit:
1. The crime of homicide;
2. Injurious and serious shedding of blood;
3. Impious or sordid use to which the church was di-
verted ;
4. The burial of an infidel or one excommunicated by a
declaratory or condemnatory sentence.
5 2. The desecration of a church does not entail the
desecration of the cemetery, even though the latter ad-
joins the church, and vice versa, desecration of the ceme-
tery does not involve desecration of the church.
Homicide must here be strictly understood, as the kill-
ing of any human being, whether young or old; hence it
also covers abortion and suicide. It does not matter
whether the crime is committed by poison, or hanging, or
the use of a weapon.
The text further says delicto. A crime supposes a
71 C. 3. Dist 68; cc. 19, ao, 37, the Irish Eccl. Record, 1019, 460,
38, Dist. 1, de cons. maintains) seems doubtful, because
72 C. to, Disl. i, de cons. utus is hardly ever employed in such
73 Co. 7, 10, x. III, 40. connection, unless a church were
74 C. 10, x, III, 40. used for a brothel, which is a re-
75 Whether the effusio setninis hu- pulsive thought.
mani is included in | 1, n. 3° (u
<0
;Ie
I , Original from
UNIVERSITY OF WISCONSIN
CANON 1 1 72
37
grievous fault, and therefore homicide committed by a
child, or by an insane or frenzied person, would not dese-
crate a church. If a drunkard perpetrates such an act,
it depends on whether the action was in any way foreseen
or not. If it was not foreseen, it does not desecrate the
church.70 Lynching, however, and even the judiciary-
execution of a sentence of capital punishment would in-
duce desecration. No crime is involved if one kills an
aggressor in self-defence.
Iniuriosa et gravis sanguinis effusio means the shed-
ding of human blood in such quantity that it may be
called a pouring out. Hence a few drops, or the oozing
from a light wound would not desecrate a church, and
the authors17 speak of a copious shedding of blood.
The word gravis may have another meaning, vie. graviter
culpabMs, grievously sinful. Hence if boys would beat
one another, or if a teacher would punish boys in church,
it would scarcely amount to a grievous fault.7* If by a.
serious blow from another the nose would bleed copi-
ously, some assert desecration, while others deny it.7*
The correct answer depends partly on the interpretation
of iniuriosa, because the injury may be referred either
to the sacred edifice80 or to the person81 injured. The
text does not decide which is meant. But most prob-
ably the act must be injurious to both edifice and person,
so that the person injured is really damaged, and the
people who witnessed the act look upon it as a serious
irreverence done to the church.
The third act which induces desecration is giving the
church over to impious or sordid uses. Here the terms
ra Cfr. Gaaparri, Dr SSma En-
ekaristia. n. 250. Vol. I, p. 177.
T7 Gasparri. |. e,, n. 251; Many,
De Locis Sacris, p. 73,
tb RcifTcnstuel, III, 40, n. 16,
79 Ga*parri. /. c.
ao idem, I. e.
81 Many, /. c, p. 71.
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
38 ADMINISTRATIVE LAW
require attention, because, as stated, this cause is new.
Impious has many meanings: ungodly, irreligious, ir-
reverent, unnatural, detestable, etc. Hence using a
church for orgies, as happened in the French Revolu-
tion, or for Masonic rites, would, in our opinion, dese-
crate it. Sacrilegious robbery would also have this effect.
Sordidus may be compared with the sordid or mean
offices forbidden to the clergy. Thus a church may be
called desecrated if it was used for a barracks, especially
if it has also served to quarter horses or mules;82 al-
though the S. Congregation 6Z in one instance of a two
days' occupation by soldiers decided only for provisional
reconciliation. Sordid would also be the use of a church
for merely political meetings, if this should happen fre-
quently and under great agitation.
Lastly, the burial of an infidel or an excommunicated
person also desecrates a church. By infidels are here
understood persons who have never been baptized. Cate-
chumens must not be classed with infidels.8* Besides, a
more benign interpretation would, in our case, exclude
from the class of infidels all children of Catholic parents,
whether buried with the mother or not.85 Rut if this be
admitted, why not extend it to the husband or wife of a
Catholic partner, since the unbelieving party, according to
I Cor. VII, 14, is sanctified by the believing party? We
make this suggestion with due reserve and because some
canonists 96 interpret the term pagans and infidels as in-
cluding grown persons only, or such as are wilful infidels.
Our Code, which docs not receive its juridical value from
the spurious texts of Gratian's Decree, simply mentions
~
82 S. Rit. C. March 3, 1821 (Dec. 83 Gasparri, /. c, n. 253; Many,
Avtlu, n. 2612). /. d p. 75 6
aa S. Rit. C, Feb. 27, 1847 {ibid., 8« Gasparri, *. c; ice, however,
a. 3938). can. 1239.
84 Cfr. can. 1230, \ 2.
,\[c
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1 1 72
39
infidels, without distinction, thereby including all who are
destitute of baptismal grace through their own fault.
Excotnmunicati must also be interpreted strictly. It
includes only those who have been declared excommu-
nicated or condemned to the penalty. It does not include
those under suspension or interdict, and therefore the
burial of a suspended or interdicted person would not
desecrate a church.
Ercomtnunicati are either zntandi or tolerati. Both
kinds are here included, provided a declaratory or con-
demnatory sentence has been given.87
Concerning heretics or schismatics it may be asked
whether their burial in a church would defile it. A deci-
sion of the S. Congregation M would seem to include all
non-Catholics. However, since the Code 8' requires a
declaratory sentence even for a pocnae latae sententiae,
it appears more probable, and more in keeping with the
spirit of the law, that a heretic or schismatic against
whom no such sentence has been passed, is net included
in the category of excommunicated persons whose burial
would desecrate a church.90 The consequence is that
most of our present-day heretics, so called, are not
touched by this canon.
As four kinds of acts only are specified, no analogy or
extension may be admitted.
Furthermore, these acts must be certain, de iure or de
facto. De iure certain is desecration if homicide was
committed ; uncertain de iure would be the amount of
blood shed. De facto certain is desecration if the burial
of an infidel took place ; de facto uncertain is when the
IT Cfr. can. 2350. I a.
M S. Rit. C, April 23, 1875 (Dec.
Auth., n. 3344); Gasparri, /. c, n.
■54-
■9 Can. 2233, I 4
00 This was, as Gaspasri owns, the
tententia communis before the pro-
mulgation of the Code.
ti jle
Original fro m
UNIVERSITY OF V,'15C0NSI
40 ADMINISTRATIVE LAW
fact of infidelity is doubtful, because he may have secretly
been baptized. The general rule is that in doubtful cir-
cumstances the minimum is taken.81 However, provi-
sional reconciliation would not be out of place."
The acts inducing desecration must be notorious, i. e.
known and committed under circumstances that make it
impossible to hide them for any length of time.88
Lastly, these acts must be commited in the church itself.
If a man would shoot through a window of the church
and kill a person outside, the church would not be defiled.
But if the person were killed in the church by a shot fired
from outside, desecration would take place. The mar-
tyrdom of St. Thomas a Becket implied desecration.94
Is any church liable to desecration, or only a conse-
crated or blessed church ? It seems the more probable
and, we may say, the more common opinion, that only a
consecrated or blessed church is to be understood.95 This
would seem to be the more natural interpretation if we
compare can. 1 165, § I, and the following one. A build-
ing is dedicated to divine worship by consecration or
blessing, and no divine services can be held in it before
this ceremony has taken place. Now the effect of dese-
cration, as stated in can. 1173, consists precisely in the
prohibition of divine services. What then would be the
effect of desecration with regard to churches that are
neither consecrated nor blessed?
Finally, by church is to be understood the body of the
internal church, exclusive of the roof, tower, sacristy,
vestibule and adjoining rooms. The crypt or basement is
included if it is internally connected with the upper part
of the church building.96
»l Reg. Iurii 30 in 6°. B4 Gisparri, /. e., n. 250.
M S. Rit. C, Feb. 27, 1847 Wtc. bs Thus Gasparri, /. e., n. 247.
A*th., n. 3938). OB Gasparri, /. e., n. 350; Many,
93 Can. 2107. L c. p. 80 f.
* -x, \i-\i » Original from
1 by Google
UNIVERSITY OF WI5C0NS!
CANON 1173
4i
§ 2 corrects the old law" and admits no connection
between the desecration of a church and that of a ceme-
tery, even though the latter adjoins the former, and vice
versa.
consequences of desecration
Can. 1 173
§ 1. In viola ta ecclesia, antequam reconcilietur,
nefas est divina celebrare officia, Sacramenta mini-
strare, mortuos sepelire.
§ a. Si violatio accidat tempore divinorum offici-
orum, haec statim cessent ; si ante Missae canonem vcl
post comrnunionem, Missa dimittatur; sccus sacerdos
Missam prosequatur usque ad comrnunionem.
The consequences of desecration are twofold: cessa-
tion of divine services and obligation of reconciliation.
Until reconciliation is effected, it would be unlawful to
hold divine services in a desecrated church or to adminis-
ter the sacraments or bury the dead there.98 Hence all
liturgical services which have been instituted by divine or
ecclesiastical law and are performed exclusively by the
clergy,00 are strictly forbidden in a desecrated church.
However, though the injunction is grievous, yet no pen-
alty, either of censure or irregularity, is attached to the
transgression.1
If the desecration happens during the divine offices,
these must cease immediately. Thus the canonical hours,
or preaching, or any function should be immediately
stopped. Yet we believe that Baptism might be finished
if the ceremony had progressed nearly to the act of pour-
87 C. tin. 6*. Ill, »X.
•a Cfr. cc a?, at, DLt. 1.
com.: c. 10, x. Ill, 40.
SB Can. 2256, n. I.
dt l Neither was a penalty contained
in the Constit. " Afostoluae Sedis."
►ogle
Original fro m
UNIVERSITY OF WISCONSIN
42 ADMINISTRATIVE LAW
ing the water. If the desecration happens before the
Canon of the Mass, or after Communion, the Mass must
be discontinued. If it happens between the beginning of
the Canon and Communion, Mass must be continued until
Communion, viz., until the Corpus tuum. This is the
rule of the Missal.8
Canonists generally hold that if there is no church in a
place besides the one desecrated, and reconciliation can-
not be promptly effected, the Ordinary may permit the
celebration of Mass therein for the people. In case of
necessity, for instance, for administering the Viaticum, if
no other church is available, Mass may be said in a dese-
crated church without consulting the bishop, if he cannot
be approached." Can. 1176 provides for emergencies.
THE RECONCILIATION OF CHURCHES
_
Can. 1 174
§ 1. Ecclesia violata reconcilietur, quam citissime
poterit, secundum ritus in probatis liturgicis libris
descriptos.
§ 2. Si dubitetur num ecclesia sit violata, recon-
ciliari potest ad cautelam.
Can. 1 175
Ecclesia violata ob sepulturam excommunicato vel
infidelis nc reconcilietur, antequam cadaver exinde
removeatur, si remotio sine gravi incommodo fieri
possit
2 Misiale Rem*num, lit. De Di- ■ Guparri, /. c, 343; Many, X. c,
ftetibus, c. X, n. a. p. 83-
* ( Inrttll*> Original from
■OOgK. UNIVERSITY OF WISCONSIN
CANON 1174-1177
43
Can. 1 176
§ 1. Ecclesiam benedictam reconciliare potest rec-
tor eiusdem vel quilibet sacerdos de consensu saltern
praesumpto rectoris.
§ 2. Ecclesiae consecratae valida reconciliatio ad
eos spectat de quibus in can. 1156.
§ 3. In casu tamen gravis et urgentis necessitatis,
si Ordinarius adiri nequeat, rectori ecclesiae conse-
cratae eandem reconciliare fas est, certiore facto postea
Ordinario.
Can. 1 177
Reconciliatio ecclesiae benedictae fieri potest aqua
lustrali communi; reconciliatio vero ecclesiae conse-
cratae fiat aqua ad hoc benedicta secundum leges litur-
gicas; quam tamen non solum Episcopi, sed etiam
presbyteri qui ecclesiam reconciliant, benedicere pos-
sunt.
The first of these four canons, all of which refer to
the matter of reconciHng a desecrated church, demands,
like the old law,4 that reconciliation be performed as soon
as possible, according to the rites described in the ap-
proved liturgical books. If the fact of the desecration is
doubtful, a provisional (ad cautelam) reconciliation may
take place. The books referred to are the Roman Pon-
tifical and Ritual (tit. viii, c. 28). Priests and bishops
should beware of the assumption that a church is recon-
ciled if Mass was said therein after desecration. Hence,
even in case Mass has been said in a desecrated church
reconciliation is required as a matter of necessity.5
Can. 1 175 takes up the fourth case of can. 1172, vis.,
4C. .0, x, ni. 10.
a s. Rit. C. Aug. 19.
1634. »d II Wee. Auth.. n. 6ll).
Go >gle
Original from
UNIVERSITY OF WI5C0NSI
44 ADMINISTRATIVE LAW
when a church has been desecrated by the burial of an
infidel or excommunicated person. Before reconciliation
the body must be removed if it can be done without
great inconvenience. It may be difficult to recognize the
remains, especially if many were buried in the church.
Prudence is required under such circumstances.' But if
the expense caused by the calling of experts and witnesses
would be too great, removal would not be required.
Can. 1 176 determines the ministers of reconciliation.
A church which was only blessed may be reconciled by its
rector or by any other priest with the (at least) presumed
consent of the rector. Former decisions required that a
dignitary,' or at least one especially appointed by the
Ordinary,8 should perform the ceremony of reconcilia-
tion. Our text requires neither dignity nor faculty.
Any priest may lawfully presume the consent of the rec-
tor, unless positively forbidden by the latter, or convinced
of the intention of the rector to perform the rite himself.
A consecrated church can be validly reconciled only by
those mentioned in can. 11 56. Hence the Ordinary of
the diocese is entitled to reconcile consecrated churches
of his own territory, which belong to the secular clergy or
non-exempt religious or laymen ; and the higher superior
of exempt religious can reconcile churches belonging to
his order.
However, says § 3 of can. 1176, in cases of serious and
urgent necessity, if the Ordinary cannot be reached, the
rector of a consecrated church may reconcile it and in-
form the Ordinary afterwards. This is a liberal exten-
sion unknown before. A grave and urgent case would be
the celebration of a festival which could not be post-
6 S. Rit. C, April »3. »8?s (n. 3J44>-
7S. Rit. C, Feb. 9. "608 <n. 346).
8S. Rit C, March 3, i8ji (n. 2612).
>Ie
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 1 177
45
poned, for instance, first Holy Communion, or a wedding,
or a funeral. In that case the Ordinary should be called
either by telephone or telegraph ; but if it is foreseen
that he could not reach the place in time, it would be use-
less to send a message. Hence the bishop or major ex-
empt religious superior, respectively, must simply be noti-
fied of the fact of reconciliation. It goes without saying
that this information is not required for the validity of
the reconciliation.
The rite to be followed by the rector of the desecrated
church is that of the Roman Pontifical.
Can. 1 177 says that reconciliation of a blessed church
may be effected with ordinary holy water, whereas for a
consecrated church water blessed according to the litur-
gical laws should be used. However, not only bishops,
but also priests who perform the act of reconciliation, may
bless this water. The Roman Ritual • states that a priest
endowed with the faculty of reconciling a consecrated
church, hence also the rector of the church in case of
necessity, must wear amice, alb, cincture, stole and cope
of white color. He must follow the rite prescribed in the
Pontifical, and consequently use the water blessed by the
bishop. If he blesses the water himself, he must follow
the Roman Pontifical, at the beginning of Pars II: Dc
Benedictione et Impositione Primarii Lapidis. After the
water has been blessed he is to proceed according to the
formulary of the Pontifical De Ecclesiac ct Coemetcrii Re-
conciliation e, and follow the rubrics there given. If the
desecrated church was only blessed, the priest dresses as
above, uses ordinary holy water (blessed, for instance, on
Sunday before Mass), and proceeds according to the
• Tit III, c. a8 (ed. Pustct, 1913,
p. «7 ff.)- But the faculty men-
tioned there is no longer needed in
case of necessity; nor ia any fac-
ulty required for reconciling a
church only blessed.
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
46 ADMINISTRATIVE LAW
Ritual, title viii, c. 28: Ritus Reconciliandi Ecclesiam
Violatam.
a '
decorum of the house of god
Can. 1 1 78
Curent omnes ad quos pertinet, ut in ecclesiis ilia
munditia servetur, quae domum Dei decet ; ab iisdern
arceantur negotiationes et nundinae, quanquam ad
finem pium habitae ; et generatim quidquid a sancti-
tate loci absonurn sit.
All to whom it pertains shall take care that the churches
are kept neat, as becomes the house of God; business and
fairs, even though for a pious purpose, must not be held
in them, and in general everything that is incompatible
with the holiness of the place.
It is unnecessary to recall all the Decretals 10 and papal
constitutions which refer to this matter. The very fact
that a church is a sacred place, in which tremendous mys-
teries are celebrated, ought to suffice to keep it neat.
Luxury or magnificence, says Benedict XIV, are not re-
quired, but neatness and cleanliness are possible every-
where, even in the poorest church.11 The Pontiff adds:
You will find well-furnished and neatly adorned resi-
dences, but squalid and barren churches lacking the most
necessary furniture. Lack of neatness betrays a lack of
interest and perhaps of faith on the part of the priest.
Those immediately concerned are the congregation,
especially the trustees and altar society, the clergy and
the Ordinary. The latter should make the condition of
the church a subject of examination at the time of his
canonical visit and issue regulations from which no
-
<
10 C. 2, X. I, 37; c 12, X, III. iiCoiwt "Amnut Qui," Feb. 10.
iica i, 5, X, III, 49. 1749, 1 1.
oogle
f* ^ v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1 179
47
appeal is admissible. He may inflict penalties against
incorrigible pastors.12 Fairs and markets are not usually
held in the churches of our country; but even the vesti-
bule and other places connected with the church should be
kept free of them.
IUS ASYLI
~
Can. 1 179
Ecclesia iure asyli gaudet ita ut rei, qui ad illam
confugerint, inde non sint extrahendi, nisi necessitas
urgeat, sine assensu Ordinarii, vel saltern rectoris ec-
clesiae.
Churches enjoy the right of asylum, which implies that
criminals seeking refuge therein may, except in case of
urgent necessity, not be taken out without the consent
of the Ordinary or at least of the rector of the church.
As the Greek term asylos indicates, an asylum was
understood to be an inviolable place. Such in the old law
was the altar of holocausts, the horns of which were held
by the one who fled to the tabernacle or temple to seek
safety from revenge or escape being killed without due
trial.18 The Greeks, too, had their statues, temples, and
marked off districts which offered safety to criminals.14
Roman temples, if consecrated, were endowed with the
same privilege.15 Christian churches claimed the ius
asyli before the Christian emperors enacted the same into
law.10 The Codex Iustinianus (lib. I, tit. 12) contains a
-
l2Bcned. XIV, "Ad militonHs,"
March 30, 1742, 9 6; cfr. can. 2182-
.184-
l'Kr. 31, 28: III Ki. 1, SO; J, 28
flf. Besides, there were cities of
refuge; Job. 20, 4; 21, 3.
i* The space of asylum in the
temple of Artemii at Ephesus ex-
tended to one stadion or 600 feet;
cfr. Stengel, Die Griech, Kultus-
altertumer, 1898, p. 29 f.
15 Wissova. Religion u. Kultur
der Romer, 1902, p. 405.
lfl S. AmbroBe, Ep. 20, ad Mar-
cell., n. id (MIgnc, 16, 997); Cod.
Theod., IX, 45.
>ogle
Original from
UNIVERSITY OF WI5C0NSI
48 ADMINISTRATIVE LAW
title: " De Ms qui ad ecclesias eonfugiunt vel ibi excla-
mant" forbidding extradition or violent seizure of
criminals and reserving the judgment to the bishop. The
Decree and the Decretals 1T largely follow the Roman
law. Later enactments, especially in papal constitutions,
either modified or determined the extent of the right of
refuge. According to a Constitution of Gregory XIV
("Cum alias" May 24, 1591) highway robbers and
thieves who plundered the fields, those who committed
cold-blooded murder or wantonly shed blood, those guilty
of lese majeste in the person of the ruler, and those who
prevented the application of the ius asyli were excluded
from the benefit of the privilege.18
Our text excludes no one, but limits the right of refuge
somewhat, as not only the Ordinary (i. e., the bishop)
can give permission to extradite, but the rector of the
church also. In cases of urgent necessity no permission is
required. Such a case would be that of threatening mob
violence, from which the officials might save the criminal
by quick action.
The churches which enjoy this privilege are those con-
secrated or blessed, as all authors teach and the text
plainly intimates. Common jurisprudence 18 would ex-
tend it to churches and public oratories not yet blessed,
but dedicated to divine worship. This view may be ac-
cepted, as the ius asyli is a favor and consequently liable
to a broad interpretation.
No penalties against violators of this right are stated in
the Code.
~
-
IT Cc. 8-10, 19, 35, C 17, q- 41 the grant strictly to bishop*, cxclud-
X, III, 49. ing even the prelates nulliuj,
is Benedict XIV., "Officii No- i»Cfr. Many, /. c, p. 101.
stri," March 15, 1750, | :a, reserved
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1 1 80
49
THE TITLE OF BASILICA
Can. 1 180
■
Nulla ecclesia potest basilicae titulo decorari, nisi
ex apostolica concessione aut inmemorabili consuetu-
dine; cuiusque vero privilegia ex alterutro capite col-
li gantur.
No church enjoys the title of basilica, except it has been
given to it by the Apostolic Sec or by immemorable
custom. The privileges of each church are to be deter-
mined either from the concessions of the Apostolic See or
from immemorable custom.
Originally the term basilica indicated the architectural
style of the structure. However, the name also implied a
royal or stately building characterized by great splendor
or prominence. Hence the more illustrious churches,
especially those dedicated to renowned martyrs or saints,
became known as basilicas. Later a distinction was intro-
duced between basilicae majores and minores. The four
major basilicas are : St. John Lateran, in which the Ro-
man Pontiff used to be enthroned and which is the proper
See of Rome; St. Peter's on the Vatican, which repre-
sents Constantinople; St. Paul's on the Via Ostiense,
which designates the See of Alexandria, and S. Maria
Maggiore, as representative of the See of Antioch.
These four are also called patriarchal basilicas. Besides
these there are many minor basilicas, for instance, S.
Maria in Trastevere, Monte Cassino, St. Francis of As-
sisi, Lourdes, etc. These minor basilicas came to be
called thus either by the renown of their clergy or because
of important events or mere antiquity or splendor.20 But
10S. Rit C. Aug. 26, 1836 (.Dee. Auth., n. 3744, and Vol. IV, p.
3S7 ff->-
oogle
Original fro m
UNIVERSITY OF WISCONSIN
Q
50 ADMINISTRATIVE LAW
unless an immemorable custom has borne constant wit-
ness to the existence of the title, it now requires a papal
grant. The privileges, or rather decorative insignia, are
the use of the canopaeum, the tintinnabulum, the palma-
toria or bugia, and some vestments for the clergy.
ENTRANCE FEES NOT ALLOWED
Can. ir8i
Ingressus in ecclesiam ad sacros ritus sit omnino
gratuitus, re pro bat a qualibet contraria consuetudine.
Admission to divine service must be entirely free, and
every contrary custom is hereby reprobated.
Rome, and especially the S. C. Propaganda, was inex-
orable in rejecting the custom of demanding admission
fees of any kind at the doors of churches. The Provin-
cial Council of Cincinnati, held in 1861, thought it could
permit the custom in three cities of the then Cleveland
diocese. But the Prefect of the Propaganda demanded
that the custom be abolished within two years. A similar
amendment was prescribed for the acts of the II Plenary
Council of Baltimore, in 1866, and finally for the acts of
the Provincial Council of Australia, in 1869. From the
last-named letter of the Propaganda our text has passed
into the Code,21 which has made the law even more em-
phatic by adding the reprobation clause. This renders
the custom existing in many parts of our country juridi-
cally impossible, but it will take some time to eliminate it
and to find other sources of revenue. The decree above
mentioned forbids the placing of ushers (collectores) at
the gate for collecting money from the faithful coming to
-
Sl Coll. Lac- t. HI, coll. 920, 2io, So6, 1085, 1086; S. C P. F., Aug.
15 1869 (Coll. ii. 1345)-
I Original fro rn
'°°;Slt UNIVERSITY OF WISCONSIN
CANON 1 1 82
5i
-■
attend divine service and to hear the word of God. But
the S. Congregation does not intend to forbid spontaneous
oblations at the Offertory, nor to abolish seat or pew rent
THE ADMINISTRATION OF CHURCHES
Can 1 1 82
§ 1. Firmo praescripto can. 1519-1528, administra-
tio bonorum quae destinata sunt reparandae deco-
randacque ecclesiae divinoque in eadem cultui exer-
cendo, pcrtinet, nisi aliud ex specials titulo vel legitima
consuetudine constet, ad Episcopum cum Capitulo, si
de ecclesia cathedral i agatur; ad Capitulum ecclesiae
collegiatae, si de collegiata; ad rectorem, si de alia ec-
clesia.
§ 2. Etiam oblationes factas in commodum pa-
roeciae aut missionis, aut ecclesiae sitae intra paroeciae
vel missionis fines, administrat parochus vel missiona-
ries, nisi agatur de ecclesia propriam administrationem
habcnte. distinctam ab administratione paroeciae vel
missionis, aut nisi aliud ferat ius peculiare aut legi-
tima consuetudo.
§ 3. Parochus, missionarius, rector saecularis ec-
clesiae, sive saecularis is sit sive religiosus, debet
huiusmodi oblationes administrare ad normam sa-
crorum canonum, deque eis rationem loci Ordinario
reddere ad normam can. 1525.
§ 1. This canon first safeguards the administration of
church property in general, as governed by can. 1519-
1528, and then states to whom pertains the administra-
tion of the goods destined for the repair and embellish-
ment of churches and of divine service in cathedral, col-
legiate, and other churches. In cathedral churches it be-
►ogle
Original from
UNIVERSITY OF WISCONSI
53 ADMINISTRATIVE LAW
longs to the bishop and the chapter conjointly; in collegiate
churches, to the chapter; in all other churches, to the
rector.
Wherever there IS a diocesan chapter, in the canonical
and full sense of the term, the administration of the funds
destined for the repair and adornment of the cathedral
church lies with the bishop and the chapter conjointly.
Hence neither the bishop nor the chapter may proceed
alone in matters pertaining to the cathedral church."
But what if there are no cathedral chapters, as in most
of our dioceses," or if they are not established along the
lines of the law, as in England? After having perused
the Acta et Decreta of our plenary councils we could per-
ceive nothing that would be strictly to the point in our
case. The third Council mentions (n. 266) a so<alled
Apostolic canon, which in substance commits the whole
temporal affair to the bishop and then describes the mode
in which church property may be held: — by fee simple,
in trust, as corporation sole, or as personal property.
In treating of diocesan consultors (n. 20) the Council
demands the consilium (sic!) of the consultors for any
alienation of church property the value of which exceeds
$5000. Hbwever, this applies to ecclesiastical or dio-
cesan property in general, and does not per se touch ca-
thedral funds. Who, then, is responsible for the repair
and decoration of the cathedrals in our country? Since
there are no chapters, properly so-called, and the diocesan
consultors certainly cannot claim any title to the adminis-
tration of cathedral funds, it follows that the bishop him-
self is responsible. He may entrust the cathedral pastor
with this important matter, but the ultimate responsibility
02 S. C. EE. et RR , May 33, 166a the archdiocese of New Orleans, but
(Biziarri, Collectanea, p. 258). their rijrhts arc unknown to the ail-
-
as There are honorary canons in thor.
oogle
■T"* ^ -. ils* Original from
UNIVERSITY OF WISCONSIN
CANON 1 182 S3
is the bishop's. This is more clearly enunciated in the
ruling of the first Westminster Provincial Council, 1852,
n. 24: " The right to the temporal and spiritual adminis-
tration of the cathedral church remains with the bishop,
unless the Holy See shall have provided otherwise." u
We could not find a contrary proviso. Neither is the Code
opposed to our view, for the present canon is plainly in-
tended for chapters which measure up to all requirements
of the law. However, we hardly believe this holds of
English chapters.
The care for collegiate churches, our text says, belongs
to the chapter, not to the provost or pastor. The same
may justly be said concerning abbey churches, whilst
churches in care of exempt religious must be taken care
of by the respective rector, as is the case with all other
churches not in possession of a chapter or corporation.
For if a corporation (a confraternity, for instance) is
in possession of a church, the oblations of which it re-
ceives and administers, the right and duty of taking care
of that church belongs to the confraternity, under the
supervision of the Ordinary of the diocese.25
§ 2. Offerings made in favor of a parish church or
mission, or of a church located within the boundaries of
a parish or mission, are administered by the respective
pastor or missionary, unless the church in question has its
•
own separate administration, distinct from the administra-
tion of the parish church or mission, or unless a particu-
lar law or lawful custom rules differently.
There is no difficulty to be apprehended from this
regulation in our country. The only trouble that might
arise would be from a sodality or confraternity. How-
tiCoIl Lac,, III, col. 048. The chapter (Coll. Lac, III, 957 f.).
cathedral of Newport is an excep- 26 S. C. EE. ct RR., Feb. n, 184a
tion, for it has a monastic cathedral > !'■.-.», /. c, p. 478).
p
Go >gle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
54 ADMINISTRATIVE LAW
a
ever, these are generally ruled by the pastor or mission-
ary. Besides, if they form a corporation acknowledged
by the civil law, they have a solid basis, provided they
give an account to the Ordinary. For an independent
confraternity can hardly be imagined." Churches or
chapels governed by religious have their own administra-
tion and are dependent on the bishop only as far as the
law states.
§ 3. The pastor, the missionary, the rector of a secular
church, be he a secular priest or a religious, must adminis-
ter these offerings according to church law and render an
account to the Ordinary, as provided in can. 1525.
Those who are obliged to render an account are: (a)
pastors, no matter whether they belong to the secular or
religious clergy; (b) missionaries, whether secular or re-
ligious; (c) rectors of churches which by right belong to
the secular clergy, although they are subject to religious.
A reasonable doubt might arise from can. 630, § 4,
where the religious superior is said to administer the
offerings of a church that belongs plcno iure to a religious
community. We stated what we think of that enactment
under the respective canon, vis.: It is impracticable for
a community which has many expositi. But our canon
speaks of all pastors alike and draws no distinction. All,
it says, must administer the offerings made to their
churches, all must render an account to the Ordinary. In
order not to go out of the way wc assume it as the logical
consequence that the pastor, and not the religious supe-
rior, should administer these offerings, for which he is
responsible to the Ordinary. Otherwise, if we follow
can. 630, § 4, the religious superior would have to ad-
minister these offerings and render the account. There
2« S. C. G, July 7, 1736; July 27. »737 (Richter, Trid., p. 170, nn. 81
and pturtes).
§le
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1 184
55
seems to be a contradiction here. The natural explana-
tion would seem to be that the pastor actually administers
those funds, and the religious superior has the supervi-
sion, if he cares to exercise it.
Which are the offerings spoken of in our canon? The
description of these may safely be taken from the Ilnd
Provincial Council of Westminster, and the Illrd
Plenary Council of Baltimore.27 They are: pew-rent,
collections at the Offertory, seat-money, and funds raised
by lectures and house collections. Of all these, therefore,
the administrators, as far as repair and embellishment of
the church and divine service are concerned, must give an
account to the Ordinary every year.28
TRUSTEES
Can. 1 183
§ 1. Si alii quoque, sive clerici sive laici, in ad-
ministrationem bonorum alicuius ecclesiae cooptentur,
iidem omnes una cum administratore ecclesiastico, de
quo in can. 1182, aut eius vicem gerente, eoque
praeside, constituunt Consilium fabricae ecclesiae.
§ 2. Huius Consilii sodales, nisi aliter legitime con-
stitutum fuerit, nominantur ab Ordinario eiusve delc-
gato et ab eodem possunt ob gravem causam re-
moveri.
Can. 1 184
Consilium fabricae curare debet rectam bonorum
ecclesiae administrationem, servato praescripto can.
-
-
tlTiu VIII, n. X {Coll., Lac. Ill, Baltim. Ill, n. 90 (cd. 1886, p. 48 f ;
col. 982); Acta et Decreta Com. p. 231 f).
BS Sec c«n, i5*Jt I *•
jle
Original from
UNIVERSITY OF V/ISCONSI
56 ADMINISTRATIVE LAW
I53a, 1533: scd nullatenus sese ingerat in ea omnia
quae ad spirituals munus pertinent, praesertim:
z°. In cxercitium cultus in ccclcsia;
a°. In mod um et tempus pulsandi campanas et in
curam tuendi ordinis in ecclesia atque in coemeterio ;
3°. In definiendarn ration cm qua collect ac, dcnun-
tiationes aliique actus ad divinum cultum ornatumque
ecclesiae quoquo modo spectantes in ecclesia fieri pos-
sint;
40. In dispositionem materialern altarium, mensae
pro disthbutione sanctissimae Eucharistiae, cathedrae
sive suggestus e quo ad populum verba fiunt, orga-
norum, loci cantoribus assi gnati, sedilium, scamnorum,
capsularum oblationibus recipiendis, aliarumque quae
ad exercitiuni religiosi cultus spectent;
50. In admissionem vel reiectionem sacrorum
utensilium aliarumque rerum quae sive ad usum, sive
ad cultum, sive ad ornatum in ecclesia vel sacrario
destinentur ;
6°. In scrip tionem, dispositionem, custodiam
librorum paroccialium aliorumquc documentorum quae
ad archivum paroeciale pertineant.
p
Can. 1 185
Sacrista, cantores, organorum moderator, pueri
chorales, campanae pulsator, sepulcrorum fossores,
ceterique inservientes a solo ecclesiae rectore, salvis
legitimis consuetudinibus et conventionibus et Ordi-
narii auctoritate, nominantur, pendent, dimittuntur.
Canon 1183 says that if other administrators, either
clerical or lay, are chosen, these together with, and under
the presidency of, the ecclesiastical administrator, consti-
§le
* ' " ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 1183-1185
57
■
tute the board of trustees or council of the church fabric.
The members of this committee, unless otherwise le-
gally provided, are appointed by the Ordinary or his dele-
gate and may be removed by him for weighty reasons.
The law does not command the appointment of trus-
tees, but only says, **/. Hence though prudence may dic-
tate the measure, as the Illrd Baltimore Council states,20
a bishop or pastor would by no means act contrary to the
law by not choosing any trustees. It cannot be denied
that trustees have at various times in the past acted des-
potically and with little deference to the spirit and laws
of the Church.30 Hence the Code desires that they be
appointed and removed by the Ordinary or his delegate,
who in this case may properly be the pastor. But the text
admits another lawful way of choosing trustees, and
hence the enactments of the Illrd Council of Baltimore "
are in perfect keeping with the present law and may be
followed as a safe guide.
Can. 1 1 84 commands the trustees to take due care of
the church funds, according to can. 1522 and 1523, and
not to interfere with the spiritual administration. They
are especially forbidden to meddle:
1. With the functions of divine worship in church;
2. With the manner and time of ringing the bells or
the order of services in the church and cemetery;
3. With determining the manner of taking up collec-
tions, making announcements, and other acts which refer
to divine worship or the adornment of the church, and
are performed in church.
4. With the arrangement of the altars, communion
rails, pulpit, organ and organ loft, seats and benches, col-
?t> Acta tt Deerete, n. 284 (ed.
cit.. p. 163).
so Cone. Prov. Bait. I {Colt. Lac,
III, »>s Farley, Life of Card. Mc-
Closky, 191 7.
dbyC >Ie
Original from
UNIVERSITY OF V/ISCONSI
58 ADMINISTRATIVE LAW
lection boxes and other things belonging to divine service.
5- With the admission or rejection (because of unfit-
ness according to traditional usage or the laws of the
Church) of sacred utensils and other things which are
destined either for divine worship or the embellishment
of church or sacristy.
6. With the manner of writing, arranging or keeping
the parochial books and other documents which belong to
the archives of the parish.
It may be added, from the Instruction of the S. C.
Propaganda31 from which our text is substantially taken,
that in these matters the pastor is to follow the laws of
the Church, the diocesan statutes, and episcopal rulings.
If the church funds must be used for buying or preserv-
ing things required for the adornment of the church, the
board of trustees is obliged to see to it that the work is
properly done. Should a dispute arise about the neces-
sity of an expenditure, the bishop shall settle it.
Can. 1 185 says that the sexton, the singers, the organist,
the choir boys, the bell-ringer, the grave-diggers, and all
other servers are to be appointed by, depend on, and are to
be dismissed by the rector of the church, with due regard
to lawful customs, concordats, and the authority of the
Ordinary.
repair of churches
Can. 1 1 86
Salvis peculiaribus legitimisque consuetudinibus et
conventionibus, et firma obligatione quae ad aliquem
spectet etiam ex constituto legis civilis :
81 S. C P. F., July n, i8<6, n. 21 {Collectanea S. C. P. F, ed. 1917,
Vol. I, n. nay, p. 603V
;Ic
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1 187
59
■
i°. Onus reficiendi ecclesiam cathedralem incum-
bit ordine qui sequitur:
Bonis fabricac, sal va ea parte quae necessaria est ad
cultum divinum celebrandum et ad ordinariam ec-
clesiae adm inist rationcm ;
Episcopo et canonicis pro rata proventuum, detractis
necessariis ad honestam sustentationem ;
Dioecesanis, quos tamen Ordinarius loci suasione
magis quam coactione inducat ad sumptus necessa-
ries, pro eorum viribus, praestandos ;
a°. Onus reficiendi ecclesiam paroecialem incum-
bit ordine qui sequitur:
Bonis fabricae ecclesiae, ut supra;
Patrono ;
lis qui fructus aliquos ex ecclesia provenientes per-
cipient secundum taxam pro rata redituum ab Ordi-
nario statuendam;
Paroecianis, quos tamen Ordinarius loci, ut supra,
magis hortetur quam cogat ;
3°. Haec cum debita proportione serventur etiam
quod attinet ad alias ecclesias.
Can. 1 187
Si qua ecclesia nullo modo ad cultum divinum ad-
hiberi possit et omnes aditus interclusi sint ad earn
reficiendam, in usum profanum non sordidum ab Ordi-
nario loci redigi potest, et onera cum reditibus titu-
lusque paroeciae, si ecclesia sit paroecialis, in aliam
ecclesiam ab eodem Ordinal 10 transferantur.
With due regard to special and lawful customs and
concordats, and to the duty imposed by civil law :
I. The duty of repairing the cathedral church rests on
the following in the order named:
jle
Original fro ni
UNIVERSITY OF WISCONSIN
60 ADMINISTRATIVE LAW
a) On the church funds after deduction of the ex-
penses necessary for the upkeep of divine worship and
the ordinary administration of the church ;
b) On the bishops and canons according to their re-
spective income, after deducting the necessary support ;
c) On the faithful of the diocese, whom, however, the
Ordinary should induce by persuasion rather than com-
pulsion to contribute to the necessary expenses according
to their means.
It is well known that formerly one of the three or four
parts of which the church revenues consisted u was re-
served for the maintenance and repair of the sacred edi-
fices. However, in course of time the different parts
were no longer distinguished and the material care of
the church devolved either upon the beneficiary or to-
gether with him on all those who derived either spiritual
or temporary benefit from the church funds. Besides the
right of advowson involved a duty which was borne by
the advowee or patron. And since this could be a cor-
poration, it followed that the corporation or community
who enjoyed the right of presentation had the obligation
to provide for the material support of the church.
That local or special customs played and still play a
part in countries where the separation of Church and
State is not in effect is quite intelligible and natural. Be-
sides, in some countries the mil law provides for a spe-
cial board of ecclesiastical administrators. Lastly, con-
ventions or concordats may regulate the obligations of
the government concerning church repairs. Thus, e. g.,
the concordats between the Holy See and Prussia (1822)
88 See cc. *3— 30. C. 12. q. a. maintenance of the hntldinff and
These four parts were divided as divine service. In Spain, however,
follows: one for the bi«hop, one for the revenues were divided only into
the support of the clerg», one for three portions, see c. 10, C. 10, q.
the poor and orphan*, one for the i : c. i— 3, C. 10, q. 10.
jle
, ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1187 61
and Russia (1847) embody regulations to that effect."
(By the way it may be said that such concordats bind
also the new rulers.) These, then, — customs, concor-
dats, and civil laws — are acknowledged by our Code and
may be followed where they are in force. In our country
the order according to which the obligation of repairing
the cathedral church devolves on the various beneficiaries
is: church fabric, bishop and canons, the faithful.
1. Church funds are moneys accruing from dowry,
ordinary income, and extraordinary revenues. From
these, first and above all, the expenses for the celebration
of divine service 8* and for the ordinary or routine ad-
ministration,— in other words,*5 the current expenses, —
must be defrayed. What is left is to be employed for
repairs of whatever description to be made on the cathe-
dral church.
2. If, after deducting the necessary expenses, the
church funds prove insufficient, the bishop and the canons
must contribute to the necessary repairs, proportionately,
i. e.r so that the salary of each is taxed pro rata, but the
necessary support must not suffer. By this support is
understood the personal maintenance of the bishop and
canons, to the exclusion of relatives, for their salary is
not given, as Benedict XIV says,3* for the alimentation of
the consanguinei or the upkeep of titles and the so-called
social status. Benedict XIII allowed the so-called media
annata or half of the income of the first year to be col-
lected from all benefices, except such as belonged to col-
as Cfr. Nussi, Conventiones. 1870. SB Includes the priest's salary, the
p. rofi, p. 377 ^-. where the Russian support of janitor, organist, choir,
government appear* to be favorable the expenses for water, heating,
to the Church. light, insurance.
84 This would include church and 30 Intl., 100, n. XIII.
altar utensils, bread and wine, sanc-
tuary oil, flowers, etc.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
62 ADMINISTRATIVE LAW
legiate chapters, parishes, benefices reserved to the Holy
See and benefices which paid the same at any rate." In
our country the way is rather simple, because voluntary
contributions or subscriptions generally cover expenses.
But the bishop is not simply exempted from this duty if
his income is sufficient and the cathedraticum "sat
ping\*c." Diocesan consultors cannot in justice be obliged
to contribute, unless the clergy as such is taxed.
3. As to the faithful, we need not add anything, except
that formerly the S. Congregation taxed all the cathedral
members who lived in or had property within the district.
This was called per acs ct libram**
II. The duty of repairing the parish church rests upon
the following in the order named :
1. On the church funds, as described above ;
2. On the advowson or patron;
3. On those who receive some income from the church,
in proportion to the rate of such income, to be fixed by the
Ordinary ;
4. On the parishioners, whom the Ordinary should ex-
hort rather than compel to contribute.
III. The rules given above also apply to other churches,
with due regard to circumstances.
We will add that it would be unjust simply to call on
the Ordinary for the means of repairing a church. For,
as Benedict XIV says, such a procedure is unheard of in
law.88 But what we have said concerning the obligation
of the bishop to contribute to the repair of the cathedral
church also applies to pastors. The salary of a pastor is
church money, not intended for his relatives. As to lay-
87 " Pius et misericort," May as, 121, n. 8 f.); July 20, 1895 (A. S.
1725; Gaapirri, De SSma Euch., n. 5".. 28, 298 ff.).
132. as Inst., 100, n. I f. Therefore a
• 8 S. C. C, Sept. 5. 1783: Jon. 10, well-to-do pastor might well think
1784 tt pUrits (Richter. Trid., p. of his church in hit last will.
*Ie
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 1 187 63
men or clergymen who receive some sort of pension from
the church funds, these are certainly bound to contrib-
ute to the repairs.40 If a monastery or university should
possess a parish or other church incorporated quoad tent-
poralia tantum, it would be obliged to help keep it in good
repair.41 On the other hand it must also be stated that
the obligation arises only from benefices, salaries, pen-
sions, and revenues which are derived from the respective
church. Hence neither the bishop, nor pastors, nor bene-
ficiaries are obliged to defray such expenses from their
private means or patrimony, nor are they bound to share
the burden of repairing other churches than their own.
The parishioners, as stated above, are treated very len-
iently in our Code.4*
Can. 1 187, following the tenor of a Tridentine decree,"
permits a dilapidated church, which is unfit for sacred use
and has absolutely no funds from which repairs might be
made, to be used for decent profane purposes by the Ordi-
nary. Whenever this happens, all liabilities and revenues
are to be transferred to another church by the Ordinary,
and if the abandoned church was a parish church, its title,
too, must be transferred.
In usum profanum non sordldum means that the secu-
lar purpose to which a church is put should be honest or
decent. If the church is sold, it should first be execrated.
If it is torn down, profanation is hardly possible. But
even in the latter hypothesis the title, if the church was a
parish church, should be transferred to another church,
which may assume it as a secondary title.44 The obliga-
Q
«0 Trid„ Scst. ai, c. 7 de ref.; 43 Seas, ji, c. 7, d* ttf.
Bcned. XIV, Instu., 100, a XIII. 44 S. C. C, May 22, 1S41; March
«i S. C Gil March II, 1711 31, 1708 (Richtcr, I. c, p. iji, n.
(Richtcr. Trid., p. 121. B. 6). 12 f).
42 Cfr. S. C. EE. et RR., Dec.
10, 1841 (Biizarri. p. 477 f-).
oogle
C^ ^ v .J,, Original from
UNIVERSITY OF WISCONSIN
64 ADMINISTRATIVE LAW
tions referred to in the text consist m taking over the
foundation Masses and the celebration of the titular
feast."
« S C. C, May 22, 1841 (/. c). The canons were obligated to assist at
the solemn Mass,
( *r\nnl*> Original from
jf^OOglL UNIVERSITY OF WISCONSIN
■
TITLE X
ORATORIES
definition and division
Can. 1188
§ i. Oratorium est locus divino cultui destinatus,
non tamen eo potissimurn fine ut universo fidelium
populo usui sit ad religionem publice colendam.
§ a. Est vero oratorium ;
i°. Publicum, si praecipue erect um sit in commodum
alicuius collegii aut etiam privatorum, ita tamen ut
omnibus fidelibus, tempore saltern divinorum officio-
rum, ius sit, legitime comprobatum, illud adeundi;
a0. Semi-publicum, si in commodum alicuius com-
munitatis vel coetus fideliurn eo convenientium erec-
tum sit, neque liberum cuique sit illud adire ;
3°. Privatum seu domesticum, si in privatis aedibus
in commodum alicuius tantum familiae vel personae
privatae erectum sit.
§ i. An oratory is a place destined for divine worship,
not, however, principally for the purpose of having all
the faithful worship there publicly.
The term oratory occurs in the fourth century and sig-
nifies a house of prayer (oIkos eu«re'ptos). Later it was
restricted to small or private chapels.1 However, mere
size is not the distinctive feature. Our Code insists, like
L Cfr. Many, /. c, p. 9.
*5
>Ie
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
66 ADMINISTRATIVE LAW
former decisions,8 upon another characteristic : non uni-
verso fidclium populo xisui, it must not be destined for the
use of all the faithful. This is the specific purpose of a
church in the technical sense of the term. An oratory is
limited to a certain class or group of people. We would
also stress the term publice colendam, although the phrase
" public service " can have only a secondary meaning.
§ 2. Distinguishes three kinds of oratories, public,
semi-public, and private.
i. A public oratory is one built for the benefit of a cer-
tain corporation, or of private individuals, but in such a
manner that all the faithful have the right to frequent it,
at least at the time when divine services are held there.
A founder may have had the intention of constructing a
private oratory for his family, say at a summer resort, yet
it has become public in the course of time, either by com-
mon use or by opening an entrance into it from a public
street. Public here means the right of the public8 to
make use of a chapel for divine service. What are the
signs or marks of publicity? The Code answers: the
right of the public must be lawfully proved. This proof
may be given legally in various ways. In one case a
chapel had been built in the atrium of a baron's palace.
It had a belfry with a bell, a fixed marble altar and other
marks of a public oratory, and was declared to be such by
the S. Congregation, although there was no entrance from
a public street.4 If an oratory has been erected as a per-
petual benefice, it is considered a public oratory.5 Also if
it has an entrance from a public street and is open to all
2S. C. C, Sept. 9, 1734; S. Rit 4 S. C. C, May 31, 1704 (Richter,
C, Dec. 4, 1896; June 5. 1890 (Dec. Trid., p. 130, n. 6); Gasparri, /. c,
Auth., nn. 3934. 4°=5)- "• *9*-
sCfr. fr. 7*. Kg- »8, 1: "Si »S, C. C, Feb 19, 1619; Many,
Quid sacri aut religion aut fiubhei I. c. p. 129.
$st," etc.
GO ^Ic
I , Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1188 67
the faithful. Summing up the Roman decisions we may
say : A gate opening upon a public street or road used
by the faithful ; an immemorable custom or authentic doc-
ument issued by the founder or owner of the chapel, even
though it has no public entrance; or the title of benefice
permanently attached to an oratory, are considered suf-
ficient and evident proofs that an oratory is public. It
goes without saying that prescription, say of thirty years *
may force a public way or entrance, for instance, upon
the grounds or possessions of a landlord. But a mere
public entrance or opening upon a public street could
hardly be styled sufficient proof that an oratory is public/
unless the people are accustomed to frequent it. A legal
proof would also be furnished by an express document to
that effect issued at the time of the consecration or bless-
ing of the oratory. It would be well for the ecclesiastical
authorities to issue such documents. Finally, a legal
proof that an oratory is a public one would be the erection
or existence in it of a baptismal font, in accordance
with can. 774, § 2.
2. Semi-public oratories are such as are built for the
convenience of a certain community or class of people,
but are not open to all the faithful indiscriminately.
Here stress is laid on the corporate or specified class of
faithful who make up the ordinary attendance of a
chapel. The rest of the faithful cannot set up a claim to
be admitted, and if they are admitted, it is by mere favor,
which should prejudice neither the community itself nor
the parish at large. Such oratories, says a decree of the
S. Rit. G, of Jan. 23, 1899, are those attached to semi-
naries and colleges, pious institutes living under a rule or
constitution, houses of retreat, boarding schools and hos-
• Can. 1511, S *; Many, /. ft, p. T Such a public entrance may a!»o
iao. be made in a semi-public oratory.
oogle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
■
pi
p
68 ADMINISTRATIVE LAW
pices destined for the young, hospitals and orphanages,
garrisons and prisons.
3. Private or domestic oratories are those erected in
private homes for the convenience of a family or private
individuals. The term family must here be taken in its
strict sense, and excludes artificial persons and corpora-
tions. But it includes all the inhabitants of a house living
under the authority of the same paterfamilias.* Private
oratories exist in private homes, which signifies exclusive
ownership, so that no public servitude or easement can
deprive them of their private character. We find such
oratories in the homes of wealthy citizens, in villas,
castles, and summer resorts.
chapels of cardinals and bishops
Can. 1 189
E
Oratoria S. R. E. Cardinalium et Episcoporum sive
residentialium sive titularium, licet privata, fruuntur
tamen omnibus iuribus et privileges quibus oratoria
semi-publica gaudent.
The oratories of resident or titular Cardinals and bish-
ops, even though they be private, enjoy all the rights and
privileges of semi-public oratories.
Benedict XIV solemnly declared that oratories of Car-
dinals and bishops were not included in the decree of the
Council of Trent.9 He said that the homes of these dig-
nitaries cannot be considered as private dwellings and con-
sequently the Tridcnline decree forbidding seculars and
regulars to say Mass in private houses docs not apply to
them.10 This, however, does not mean, as our text says,
S Becker-Metcalf. Callus, or Ra- 9 Sesi. 32, de obiervandis, etc
x man Scenes of the Time of Angus- 10*' Magno cum tnimi," June 2,
tus, 1898, p. 151. '75;. « 1. 2.
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
N
CANON 1190 69
that such chapels are not private oratories in the modern
sense. They are private, but enjoy the rights and privi-
leges of semi-public oratories. Among these privileges
is this that other priests, especially the Vicar General,
may, even during the absence of the bishop or during the
vacancy of the episcopal see, say Mass there either on
week-days or holydays of obligation, and those who at-
tend comply with the obligation of hearing Mass.11 If
the episcopal palace maintains a school, all the chil-
dren and teachers may hear Mass in the chapel, said by
any priest, and thereby satisfy their Sunday duty.12 This
privilege was extended to the chapels of all bishops, even
though they were only titular bishops.18 Other functions
and offices are mentioned under can. 1193.
private cemetery chapels
Can. 1 190
Aediculae in coemeterio a familiis seu personis pri-
vatis ad suam sepulturam erectae, sunt oratoria pri-
vate
Chapels erected on cemeteries by families or private
individuals for their burial place, are private oratories.
Tourists in Italy may have noticed such chapels in the
magnificent grave-yards of Milan and Genoa.
In a different class are the chapels erected for the
whole cemetery, e. g., in memory of a pioneer priest or a
benefactor. If they serve the purpose of a grave-yard
chapel in general, the name private oratory cannot be
applied to them.
■"■
US. Rit. C, July », 1661 (n. is S. Rit. C, June 8, 1896 (n.
1196). 3906).
1* S. Rit. C, April 8, 1854 (o.
3021),
n'C
/•^ ^ v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
-
70 ADMINISTRATIVE LAW
public oratories
Can. 1 191
§ 1. Oratoria publica eodem iure quo ecclesiae re-
guntur.
§ 2. Quare in oratorio publico, dummodo auctori-
tate Ordinarii ad publicum Dei cultum perpetuo per
bencdictioncm vel consecrationem, ad norman can.
1155, 2156, dedicatum fuerit, orzmes sacrae functiones
celebrari possunt, salvo contrario rubricarum prae-
acripto.
§ 1. Public oratories are governed by the same law as
churches.
§ 2. In a public oratory, therefore, provided it has been
dedicated for permanent divine worship by the authority
of the Ordinary through blessing or consecration, all sa-
cred functions may be held which are not forbidden by
the rubrics.
The rules laid down for the building, consecration or
blessing, execration, desecration and reconciliation, rights
and privileges, administration and repairs of churches
also apply to public oratories.
The ecclesiastical functions which may be performed
in public oratories are those mentioned in can. 1171,
to wit:
a) All priestly functions, such as high and low Mass,
the blessing of candles, ashes, palms, the churching of
women, etc. ;
b) All the Sacraments, Baptism 14 not excepted, may
be administered;
c) All indulgences that can be gained by a visit to a
1* Miny, /. c, p. J87. except* doubt as to the correctness of the
Baptism, but can. 774 f. leave no statement in our text.
>Ie
k ,|rt " riginal from
UNIVERSITY OF WISCONSIN
CANON 1191 71
church, can be gained also in a public oratory. The pub-
lic oratories in the residences and hospices of the Capu-
chins enjoy the same right as the churches of their
order.15
d) As to burial, it is certain that the Ordinary may
grant permission to bury in these oratories, as this was
authentically decided.1*
The last-named decree calls for a remark in view of
the demand of can. 1171, that the parochial rights should
be safeguarded. If canon 1191, § 2, says that all ecclesi-
astical functions may be performed in public oratories, it
means only those which do not clash with the strictly pa-
rochial rights described in can. 462. Can. 464, § 2, must
also be considered, which permits the Ordinary to exempt
some religious families from the pastor's jurisdiction.
Again the local Ordinary, according to can. ii7i» may
determine the hours of divine service in these oratories,
unless they belong to exempt religious. This power he
may exercise not only at the time of consecration or bless-
ing, but at any time and for any sound reason, provided,
as stated, the oratories do not belong to exempt reli-
gious.17 If exempt religious should cause a disturbance
by holding services that trench upon parochial rights or
conflict with good order, recourse may be had to the Holy
See (S. C.Conc. or Ret).
Public oratories must be blessed or consecrated and
thus forever dedicated to the service of God. Roman
practice requires that they be either consecrated according
to the Roman Pontifical or blessed according to the Ro-
man Ritual.18 An oratory so consecrated or blessed is a
15 S. C. Indulff., June II, 173a " Bened. XIV, " Etsi minim*,"
(Prinzivalli, J. c, n. 69). Feb. 7, 1741, 8 14.
ie S. Ric C, Jan. 13, 1704, ad ao 18 S. Rit. C, June 5, 1899 (n.
(b. 3133). 40*5).
Go >gle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
J2 ADMINISTRATIVE LAW
strictly sacred place, which may not be used for profane
purposes and is endowed with the ius asyli.
Lastly, the Code states: salvo contrario rubricarum
praescripto. The only contrary rubrical laws we could
discover touch the celebration of the titular feast and the
feast of dedication. If the oratory is only blessed, no
dedication feast is permitted, but only the titular feast.
The calendar of a public oratory must be followed by the
secular as well as the religious clergy, and the clergy at-
tached to the oratory, or living in the house to which it is
attached, must commemorate the title of the same.10
If the oratory is consecrated, the feast of the dedication
must be celebrated with octave.
It may not be amiss to draw attention to the phrase,
auctoritate Ordinarii. Can. r 155 and 1156 declare that
the term Ordinary means not only the diocesan bishop,
but also the superior of exempt religious. The diocesan
bishop has the right to consecrate a public oratory, either
personally or by a delegate; the superior of exempt reli-
gious may bless a public oratory in the same way.
■-■■
semi-public oratories
Can. 1 192
§ 1. Oratoria semi-publica erigi nequeunt sine Or-
dinarii licentia.
§ 2. Ordinarius hanc licentiam ne concedat, nisi
prius per se vel per alium ecclesiasticum virum ora-
torium visitaverit et decenter instructum repererit.
§ 3. Data autem licentia, oratorium ad usus pro-
fanos converti nequit sine eiusdem Ordinarii auctori-
| tate.
§ 4. In coliegiis aut convictibus iuventuti insti-
19 S. Rit. C. Sept. 28, 1872; June 37, i8ijg fnn. 3279. 4"43^-
jte
k ,|,, Original fro rn
UNIVERSITY OF WISCONSIN
—
a
1
CANON 1 192 73
tucndac, in gymnasiis, lyceis, arcibus, praesidiis mili-
tum, carceribus, xenodochiis, etc., praeter oratorium
principale alia minora ne erigantur, nisi, Ordinarii
iudicio, necessitas aut magna utilitas id exigat.
§ 1 forbids the erection of semi-public oratories with-
out the permission of the Ordinary. This is in conform-
ity with the Council of Trent.80 Anyone may build a
semi-public oratory, but only for private devotion, not for
the purpose of having public services held there, espe-
cially Mass. This is the meaning of the Tridentine de-
cree as well as of later enactments.21 The local Ordinary
may give permission to pontifical as well as diocesan insti-
tutes of non-exempt religious to found and open a semi-
public oratory. " The superior of exempt religious may
permit such an oratory to be erected for the convenience
of his subjects.
§ 2. The Ordinary shall not grant this permission be-
fore he has inspected the oratory either personally or
through an ecclesiastical delegate, and found it properly
j fitted.
§ 3. After the permission has been granted, the ora-
tory may not be put to private uses without the authority
of the same Ordinary,
Since the distinction between a semi-public and a pri-
vate oratory was developed, within the last three decades
(owing undoubtedly to the growth of religious communi-
ties) it became necessary to define the requisites of both
more strictly. Yet it is difficult to find, either in the Ro-
man practice or in the works of canonists, a clear-cut line
20 Scm. 22, de observ, et evit. in 1900, II. n. 3. The faculties men-
celeb. Misiac. tioncd in S. C. P. F.f Feb. 39, i8j6
21 Benedict XIV. "Ad mililan- (Coll., n. 846). are still valid for
Us," March 30, 1742, I 6. countries subject to that S. Congre-
12 Leo XIII, " Conditae," Dec. 8, gation.
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
74 ADMINISTRATIVE LAW
%
of demarcation. We surely interpret the mind of the
legislator correctly if we apply the general requisites for a
private oratory also to the semi-public. The Code, partly
rehearsing the Tridentine decree IS concerning private
oratories, requires inspection, but leaves the designation
of the place to the owner of the chapel. The inspection
must comprise (a) the building, which should be such as
to represent a sacred edifice and be constructed of solid
materials,2* or at least plastered; (b) the furniture and
utensils which are required for the sacred functions, also
the neatness and cleanliness of the place; (c) the sur-
roundings of the oratory and its destination. § 3 clearly
states that the chapel must not be used for profane pur-
poses. The S. Congregation has in more than one in-
stance insisted that there should he no dormitory imme-
diately above the oratory or, if this can not be avoided,
that a canopy (baldachino) be placed over the altar.25
Furthermore, the chapel must not contain wardrobes,
chests, or trunks for profane use, nor must it be al-
lowed to serve as a parlor or recreation or work room ;
nor as a hallway, infirmary,28 or dormitory."
All these things, then, should be looked into by the
Ordinary or his delegate, who may be any vir ecclesi-
asticus (not a mtdier), even if he be only in minor or-
ders, provided he has read the title on oratories.
§ 4. In colleges and boarding schools for the young,
in high schools and lyceurns (intermediate classical
schools) ,2B in fortresses and barracks (garrisons), in
23 Sew. 22, cit. 26 An epidemic might excuse from
24 Private oratories must have at the observance of this rule,
least three walls of stone or brick; a? Cfr. Many, /. c., p. 157 f.
the fourth may be supplied by a 2* This is the Italian classification
curtain or tapestry. of schools, gymnasium standing for
25 S. Rit. C-, May m, 1641; Sept, a five years' high school, lyceum
12, 1840; Nov. 23, 1880 (nn. 756, for a three years' collegiate course.
2812, 35*5>-
oogle
^ ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 1 192 75
prisons and asylums, etc., but one principal oratory may
be erected, unless the Ordinary should judge that need
or great usefulness demand more. According to a de-
cision of the S. Congregation of Rites a special faculty
imparted by the Holy See was required to erect other
chapels, besides the principal one, in the places men-
tioned.28 The Code dispenses w,ith this faculty and
leaves the matter to the prudent judgment of the Or-
dinary. The Ordinary in this case is the diocesan bishop
for oratories belonging to secular or non-exempt religious,
and the higher superior for oratories belonging to exempt
religious.'0
The decision quoted above also mentions some reasons
of need and utility that may prompt the Ordinary to
grant permission to erect some minor or accessory ora-
tories besides the principal one. Such a reason, says
the S. Congr., would be a great number of priests who
would have to say Mass, say in a college or hospital, or
the convenience of sick persons unable to visit the main
chapel. To this might be reasonably added the cost of
fuel.81 A small chapel requires less coal, and would not
only diminish expenses, but increase the comfort, espe-
cially of children and persons in delicate health.
A word may also be said concerning oratories of re-
ligious erected on their farms or summer resorts, which
in Latin go by the name of grangiae*2 i.e., houses or
villas built on the property of religious for sheltering the
oeconomus or farm boss and his subordinates, hired hands
or servants. A laybrothcr was generally set up as su-
perintendent, and sometimes a priest resided there to say
a-
"■
29 S. Kit. C, March 8, 1878, ad can. 108 may be applied.
II (n. 3484). 81 When there ia a coal famine
so For the text throughout this thia amounts to a solid reason,
canon only speaks of the Ordinary, 82 Cfr. c. 27, X, III, 39.
not the local Ordinary, and hence
oogle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
76 ADMINISTRATIVE LAW
Mass. In modern terms such an oratory would be
semi-public, as it serves the convenience of a least a
portion of a religious community." Then there are
religious institutions which own a college or hospital or
university with a chapel insufficient to hold the num-
-
ber of attendants or to permit many priests to say Mass
at a convenient hour. May the superior of these re-
ligious grant permission to erect, besides the principal
chapel, another accessory one? If the place is owned by
the exempt religious their major superior, i.e., the gen-
eral, provincial, or conventual prior may grant this per-
mission. If the place is owned by non-exempt religious,
the Ordinary in whose diocese the chapel is to be erected,
must be asked for permission. It is no longer necessary
to have recourse to a privilege granted to the Jesuits,"
or a communication of privileges. Exempt religious
superiors are " Ordinaries " for the purposes of this
canon.88 Besides, can. 1156 dispels any misgiving in this
matter. But superiors must inspect the oratory before
granting the desired permission.
■
a.
Can. 1 193
In oratoriis serni-publicis, legitime erectis, omnia
divina officia functionesve ecclesiasticae celebrari pos-
sunt, nisi obstent rubricae aut Ordinarius aliqua ex-
ceperit.
c
a
Can. 1 193 provides that in semi-public oratories, law-
fully erected, all divine offices and ecclesiastical func-
tions may he held, as far as the rubrics and the rulings
of the Ordinary permit.
83 Sometimes these grangiae or s« Gregory XIII, " Decet Ro-
granciae nerved as summer-resorts man win," May 3. 1575.
for a vacation colony. 15 Sec can. ipR.
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 1 193 yj
The lawful erection of a semi-public oratory implies,
as we have stated, inspection and permission by the
Ordinary. Is consecration or blessing required ? There
is no text which prescribes either. It would be some-
what hazardous to consecrate a semi-public oratory, un-
less its stability and perpetuity were guaranteed. How-
ever, the blessing may be imparted, according to the
Roman Ritual, although the simple blessing (Benedict™
loci) is sufficient."
Concerning the divine offices and ecclesiastical func-
tions that may be held in semi-public oratories, we have
only to repeat what was said under can. 1191. For, as
the text implies, the same rules hold for both public and
semi-public oratories. But the Ordinary may except
some functions, and the members of such communities
must abide by his ruling. (Remember that the Ordinary
for exempt religious is their own superior.)
The rubrics which must be observed are those of the
calendar prescribed for the principal chapel or semi-
public oratory." There is no restriction as to the num-
ber of Masses allowed in such chapels, or in regard to
the priests who wish to say Mass there.38 The office
may be chanted in such chapels, and Mass be said on a
fixed or portable altar, even by sick or elderly priests.8*
If a semi-public oratory has been solemnly blessed, the
titular feast must be duly observed,*0 and the oration,
ia For the solemn blessing sec »fl S. Rit. C, Nov. io, 1906, II
Rit. Rom., tit. Vin. c. 37; the (n. 4190) ; this derision aH II does
benedictio loci, ibid., tit. VIII, cc. not upset our contention for the
6, 7 (ed. Pustet, 1913, p. 243 '•! P- grangiae of regulars, because can.
324 f). no-, * .-,, is later than said declara-
st S. Rit. G.| May aa, 1876 <»• tion.
3910). 40 S. Rit. C Nov. 29. 1878 (n.
J6 S. Rit. C, March 8, 1879, ad 3470.
I. I. a; J«l7 *. 1661 (no. 3484.
n»6).
s'c
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
78 ADMINISTRATIVE LAW
or at least the name of the titular saint, recited in the
office.
private oratories
Can. i 194
In privatis coemcteriorum aediculis, dc quibus in
can. 1 190, Ordinarius loci permittere habitualiter pot-
est etiam plurium Missarum celebration em; in aliis
oratoriis domesticis, nonnisi unius Missae, per modum
actus, in casu aliquo extraordinario, iusta et ratio-
nabili de causa ; Ordinarius autem has permissiones ne
clargiatur, nisi ad norman can. 1x92, § 2.
Can. 1 195
§ 1. In oratoriis domesticis ex indulto Apostolicae
Sedis, nisi aliud in eodem indulto expresse caveator,
celebrari potest, postquam Ordinarius oratorium visi-
taverit et probaverit ad norman can. 1152. § 2, unica
Missa, eaque lecta, singulis diebus, exceptis testis
sollemnioribus ; sed aliae functiones ecclesiasticae ibi-
dem ne fiant.
§ 2. Ordinarius vero, dummodo iustae adsint et
rationabiles causae, diversae ab eis ob quas indultum
concessum fuit, etiam sollemnioribus festis permit-
tere potest per modum actus Missae celebrationem.
Can. 1 196
§ 1. Oratoria domestica nee consecrari nee benedici
possunt more ecclesiarum.
§ 2. Licet oratoria domestica et semi-publica com-
muni locorum domorumve benedictione aut nulla
benedictione donentur, debent tamen esse divino tan-
gle
k ^1,., Original fro m
UNIVERSITY OF WISCONSIN
Q
'■-.
CANON 1194-1196 79
turn cultui reservata et ab omnibus domesticis usibus
libera.
Canon 1194 says, first, that in private cemetery chapels,
mentioned under can. 1190, the Ordinary of the diocese
may grant permission for several Masses to be said habit-
ually. This clause marks an extension of the former
law and of the Roman practice, which required1 a special
faculty for the bishop from the Apostolic See.41 The
term Ordinarius loci here excludes exempt religious
superiors.
In other domestic oratories, continues can. 1194, the
local Ordinary may permit one Mass to be said, not habit-
ually, but upon occasion, in some extraordinary case, and
provided there be a just and reasonable cause. This
permission presupposes that the Ordinary has inspected
said oratory and found it fit. This, too, is a mitigation
of the former practice. The only conditions are: (a)
that only one Mass may be said on the occasion or day for
which the petition was granted; (b) that this permission
be not a habitual or perpetual grant, but effective only
for the time being and as long the reason exists; (c)
that the occasion be an extraordinary one, for instance,
a first Mass, or a jubilee, or a temporary necessity as
that caused by an epidemic or quarantine; (d) that the
cause be just and reasonable, i.e., not detrimental to
others, especially to the parish organization; (e) that the
Ordinary first inspect the oratory, as required by can.
1192, § 2.
Can. 1 195 refers to domestic oratories erected by virtue
of a papal indult. Any one may build or construct an
oratory for private devotion, but to have Mass said there
41 7 rid., Sesi. MJ S. C. C, Dec. 1836 (Coll., n. 846); S. Rit Ct Sept.
20, 1856; S. C. F> F., Feb. 29i 30, 1749 id 5 (n. 2404).
jle
£ " -» v J„ Original fro m
UNIVERSITY OF WISCONSIN
■
80 ADMINISTRATIVE LAW
requires a papal indult, ever since the Tridentine Coun-
cil. Therefore, says our canon, unless expressly pro-
vided otherwise in said indult, only one low Mass may
be said daily in such oratories, except on the more solemn
feastdays, and no other ecclesiastical functions are al-
lowed. Before the indult takes effect the Ordinary must
inspect and approve the oratory, as required by can.
1 192, § 2. He may also, for just and reasonable causes,
other than those for which the indult was granted, per-
mit a Mass to be said there even on higher feastdays,
but only per modum actus.
This canon distinguishes between the right of having
Mass said daily and the right of having Mass said
habitually in private oratories. The Council of Trent
took away the right of the bishops to permit Mass in
private oratories per modum habitus, but left them the
power of granting the permission per modum actus for
weighty and urgent reasons.42 The Code requires only
a just and reasonable cause.
Can. 1 195 speaks of a papal indult, granted by the S. C.
of Sacraments. Such indults are almost invariably ad-
dressed to the local Ordinary, who is therefore obliged
to read the document carefully and note the clausulac.
The Ordinary in this case is an executor tnixtus, i.e., he
is obliged to investigate the truth of the reasons alleged
by the petitioner — constito tibi de narratis — and the
condition of the oratory, as required by can. 1192, § 2;
but he cannot withhold execution if he finds everything to
be as required by law.41
The text further says that only one low Mass may be
said Hatty in such oratories, even on Sundays, not, how-
ever, on the more solemn feastdays. This restriction was
4» S. C. Ct| Dec. ao, 1856; Many, 43 Cfr. Cnsporri, De SSmm Eu-
1 C-, P- '5* f- eharistia. n. 235, p. 163 f.
§le
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1 195 81
no doubt made for the purpose of insinuating to the
grantee that he should attend his parish church on those
days. After the reorganization of feasts by Pius X
and the S. C. of Rites" the question naturally arose on
which feasts it was forbidden to have Mass in private
oratories. The answer was that on the feasts of the
Commemoration of St. Joseph, the Annunciation of the
B. V. Mary, Corpus Christi, the feast of the Blessed
Trinity, the Sunday within the octave of Corpus Christi,
and the Sunday on which the feast of St. John the
Baptist was celebrated. Mass may be said in private ora-
tories.45 From this decision it may safely be deduced
that the term " more solemn feasts " means the holydays
of obligation, which do not fall on a Sunday. The indult
may read otherwise, excepting no feastday or restricting
the number of other days (nisi aliud in eodem indnlto
expresse caveatur).
Under § 2 of can. 1195 the Ordinary may permit a
low Mass to be said in private oratories even on more
solemn feasts, under two conditions: (a) that there be
a just and reasonable cause not identical with the one ex-
pressed in the indult; (b) that the grant be made per
modum actus. If, for instance, the reason for which
the indult was given was the merit of the petitioner,
old age or physical weakness may be alleged for obtain-
ing from the Ordinary the favor of having a Mass said
also on the more solemn feasts. This instance also ex-
plains the second condition. Thus, if old age was the
reason given, the petition may be granted until age has
been turned into eternity, i.e., until death. This is not
stretching the tenor of the indult, for it must be remem-
44 Piua X. " Suprrmi discipline." «S. C. Sacr., April m, 1913 (v*.
July 2, 1911; S. Rit. C, July 24. Ap. S., V. 183 t).
191 1 (A. Ap. S., Ill, jos fl.; 350
jle
/-.,., -J,-, Original from
UNIVERSITY OF WISCONSIN
■
pi
82 ADMINISTRATIVE LAW
bcrcd that the grantee or principal indultarius must be
present in the chapel, in order that the members of his
household or family may enjoy the privilege of assist-
ing at Mass and complying with the obligation of hear-
ing Mass on the days prescribed. Besides, the indult
lasts only as long as the person in whose name it was
issued lives and can enjoy it. Finally, according to
canonists, the phrase modus actus means, as long as the
reason exists {durante causa).*9
Having mentioned the principal grantee and his fam-
ily, the rescript may mention also the consanguinei
and affines, those related by blood and affinity, which is
understood to extend to the fourth degree.47 In former
rescripts, issued under Leo XIII, noble guests were also
mentioned. This term, strictly speaking, excludes all
who are not of noble rank ; but we hardly believe that
such a rigorous interpretation could be applied to a
rescript issued for our country. Hence if guests are
mentioned, they too are benefited by the indult. Fami-
liares are servants employed in actual service at the time
of Mass, e.g., those who wait upon the Master or Lady
of the house at Mass, either as honorary ladies and
gentlemen, or by helping a feeble lady or gentleman.
Cooks, chauffeurs, or hired men in barn or field, jani-
tors, etc., are not benefited by the indult.*8
No other ecclesiastical functions are permissible in
private oratories. This excludes all strictly parochial
and other priestly or ecclesiastical functions, preaching
(though a brief exhortation would not be forbidden),
the administration of the Sacraments and sacramcntals.
What about holy Communion ? No matter what can-
4*i Many. /. c, p. 153. animi." June 2. 1751. 88 n, i». io:
47 Ibid. Gisparri, /. c, n. 236, p. 168.
4S Benedict XIV, " Mag no cum
>Ic
£ * ^ ^ J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON ncj6 83
onists formerly held, we believe that, since frequent
communion is so strongly urged, the distribution of the
Eucharist would not be forbidden. At any rate, the per-
mission of the bishop would suffice."
Can. 1 196 forbids domestic oratories to be consecrated
or blessed like churches. They may, however, and
should receive the so-called benedictio loci or damns
novae, as contained in the Roman Ritual.60
Notwithstanding this defect of consecration or bless-
ing, domestic oratories must be exclusively reserved for
divine service and not be used for domestic purposes,
as explained under can. 1192, § 3. Nevertheless, a pri-
vate oratory is, properly speaking, not a sacred, but a
profane place, and hence not liable to desecration, nor
does it enjoy the MM asyli. It also remains the private
property of the owner of the house.51
c
OCfr. Bened. XIV. /. c, I 23 f.; 1913, p. 224 tji S. Hit. C, June 5,
ItutUul., 34. n. 11 f.; Gasptrri, 1899, VI (n. 4025).
I c, n. 1088. II, p. 3ja. »i Ma-iy, t. c, p. 174-
so Tit. VIII, c 6 t. <ed. Purtct,
c
G| Original from
OOglt UNIVERSITY 0FWI5C0NSIN
I
p
TITLE XI
ALTARS
definition and species
Can. i i 97
§ i. Sensu liturgico intelligitur :
i°. Nomine altaris immobilis seu Gxi, mensa su-
perior una cum stipitibus per modum unius cum eadem
consecratis ;
2°. Nomine altaris mobilis seu portatilis, petra, ut
plurimurn, parva, quae sola consecratur, quaeque dici-
tur etiam ara portatilis seu petra sacra; vel eadem
petra cum stipite qui tamen non fuit una cum eadem
consecratus.
§ 2. In ecclesia consecrata saltern unum altare,
praesertim mains, debet esse immobile; in ecclesia
autem benedicta omnia altaria possunt esse mobilia.
§ i. In the liturgical sense of the word an immovable
or a fixed altar means the upper table with its supports,
consecrated together as a whole with the table. A
movable or portable altar is a stone, generally of small
size, which is consecrated alone, and called portable altar
or sacred stone; or the same stone with its support,
though the latter was not consecrated together with the
table.
§ 2. In every consecrated church at least one, pre-
ferably the main, altar must be immovable; but in
84
jle
£ * ^ .. -J,-. Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1 197 85
a
churches that are only blessed all altars may be mov-
I ab,e"
The earliest altar was a mere table copied after secular
patterns. It consisted of a rectangular and slightly ob-
long top, supported by one, four, or occasionally five, legs.
This simple and natural shape was retained until well
into the fifth century. From the beginning, stone as well
as wooden altars were employed. Gradually the Church
came to discriminate in favor of stone, on account of its
monumental character and greater durability. A change
in the form of the altar was brought about in the sixth
cenlury by the new impetus given to the veneration of
relics. The Holy Eucharist was brought into close rela-
tion with the tombs of the martyrs and it was regarded
as a matter of prime importance that the altar he brought
into the closest possible relation with the tomb, or at least
be located directly above it. This was done by building
a " confessio" i.e., a chamber surrounding the tomb and
connected by a shaft or gallery with the altar. The next
stage in the development of the altar arose from the
custom, which grew rapidly during the sixth century, of
depositing the bodies of the martyrs within the churches.
This often led to the construction of a true confessio or
crypt; but more often the relics were deposited imme-
diately beneath the plate of the altar and inclosed with
a stone cippus or block, roughly cubical in form, hollow
within, and ornamented on the front by a doorway, like
a miniature tomb. Finally the altar was enclosed on all
four sides by plates of stone and became a mere chest for
the preservation of relics. Sometimes a sarcophagus or
fully extended body was enclosed. The custom of erect-
ing more than one altar in the same church grew out of
the cult of relics. Such secondary altars came into use
about the beginning of the fifth century, at first in side
.'le
^Irt Original from
UNIVERSITY OF WISCONSIN
■
£6 ADMINISTRATIVE LAW
chapels, later in the main church, nay even in the nave.1
These brief remarks seemed necessary to explain the
structure of the altar and the importance of relics for
the same.
requisites
Can. i 198
§ 1. Turn mensa altaris immobilis turn petra sacra
ex unico constent lapide naturali, integro et non fri-
abili.
§2. In altari immobili tabula seu mensa lapidea ad
integrum altare protendi debet, et apte cum stipite
cohaerere ; stipes autcm sit lapideus vel saltern latera
seu columellae quibus mensa sustentatur sint ex
lapide.
§ 3- Petra sacra sit tarn ampla ut saltern hostiam
et maiorem partem calicis capiat.
§ 4. Turn in. altari immobili turn in petra sacra sit,
ad norrnan legum liturgicarum, scpulcrum continens
reliquias Sanctorum, lapide clausum.
§ 1. The table of an immovable altar as well as a
sacred stone must consist of one natural stone, whole and
not easily crumbled. The altar stone is to be one single
slab, which excludes several parts.* Even if the several
parts should be compactly cemented together so as to
appear as one stone, the altar cannot be validly conse-
crated.3 A natural or pure stone is one that corresponds
to the mineralogical definition of a stone. Any hard
and compact stone is admissible, as, e.g., marble, sand-
stone, travertine, etc. Even slate or schist is allowed, but
1 Cf r. Lowrie, Monuments of the >S. Rit. C, Sept. 28, 187a; June
Early Church, 1901, p. 159 ff. 8, 1896; Nov. 10, 1906, ad I, II
1 S. Rit. C. June 17. 1843; Nov. (nn. 3286, 3907. 4191)1 but the
10, 1906 (nn. 3861, 4191). church would be validly consecrated.
oogle
v ,1,., Original fro nn
UNIVERSITY OF WISCONSIN
CANON 1 198 87
a
pumice-stone or gypsum have been rejected.4 Because of
their composite nature cement plates or blocks must be
considered forbidden. The S. Congregation has always
refused to admit a marble or wooden cornice or orna-
ment surrounding the table like a wreath.0 An altar, the
nucleus of which is of stone but covered with bricks over-
laid with a marble crust, has also been declared uncon-
seerable.* Integer means that the stone should be of one
piece, without fractures or crevices. Should the stone
have been perforated by cutting or chiseling the reposi-
tory for relics into it, it would be sufficient to place a
piece of marble or other solid slab on the part below,
so that the capsula with the relics could be laid on it.T
That the stone should be of a sort that will not easily
crumble (friabilis) follows from the nature of stone. If
it were so fragile that the fourth part or more would
break off in the act of consecration, the latter would be
invalid.8
§ 2. In an immovable altar the table or stone plate
must extend over the whole altar and be properly joined
to the support; the support itself must be of stone, or at
least the side props or columns which support the table
must be of stone.
§ 3. The sacred stone (portable altar) must be so
large that at least the host and the larger part of the
base of the chalice may find room thereon.
Xo dimensions for an altar arc prescribed by the
rubrics or the S. Congregation of Rites. It ought, how-
ever, to be large enough to allow a priest conveniently
P
* S. Rit. C, April 29, 1887; June 3698)1 but the invalidity of consccra*
>J. 1899 (nn. J675, ..■.--..-'. tion is not clearly pronounced.
5 S. Rit. Cm Auk. 39. 1885: April T S. Rit. C. Feb. 8. 1896 (n.
33. 1893 (nn. 3M. 3797)- 3884).
• S. Rit C, Dec M» 1888 (n. b S. Rit C, June 8, 1894, a. II
<n. j8*9>-
Go >gle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
ADMINISTRATIVE LAW
to celebrate ihe holy sacrifice upon it, in such a manner
that all the ceremonies can be decorously observed.* But
the S. Congregation has insisted, as does our text, that
the altar-stone should cover the whole length and width
of the fixed altar, without an ornamental addition.10
If, for instance, the length of the whole fixed altar is ten
feet, and its width from the tabernacle to the front
twenty-two inches, the altar-stone must have the same
dimensions.
It is absolutely required that the table or wensa be
placed immediately upon the support so as to form one
whole with it. In one case the S. Congregation de-
manded that if no connection between the altar-stone and
the stipes had been made, stone stipitcs should be added.
The consecration was declared valid, yet only by a spe-
cial favor was the addition and separate anointing of
these stihitcs granted.11 From this it is evident that only
a moral, though material, conjunction is required, at
least for licitness.12 But the connection must be one of
E
stone with stone.
The support, therefore, (stipes) must be of stone. It
may be one solid mass of granite, marble, etc., or it may
consist of four or more columns. But it is absolutely
necessary that these sides, columns, or small piers be of
stone.13 Columns of copper, brass, or other metal are
not allowed. If the bases are of metal, the shaft, and
more especially the capitals, must be of stone, or a stone
layer must be placed between the columns and the table,
■"■
9 Cfr. Schulte, Consccranda, 1907, 11 S. Rit. C, June 8, 1894; July
p. 6. S, 1901 (nn. 3S29, 4075).
10 S. Rit. C, Auff. *9. 1885 (a. 12 Many, /. c, p. 304.
364°*: the altar was only 2.37 me- 18 S. Rit. C. Aug. 7, 1875; Dee.
ters in length and 0 57 meters in 14, 1888 (nn. 3364, 3698).
width, wherefore they put a marble
1
cornice around it.
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1 198 89
«»
otherwise it cannot be consecrated as a fixed altar.1*
The spaces between the side walls (columns or piers)
may be left open, or the spaces on the sides and back
be filled with any kind of stone, brick, or cement; but
the space between the two columns in front should be
-
left open, so that a reliquary can be placed beneath the
table."
The portable altar is sometimes also called altare vi-
aticum. Its dimensions are approximately pointed out in
§ 3, where it is said that the table must be large enough
to hold the sacred host and the greater part of the base
of the chalice. ,fl Besides, as liturgists reasonably state,
it should have room enough for the ciborium. In gen-
eral the dimensions may range between 12 x 12, or 14 x
16 inches.17
§ 4. In an immovable altar as well as in an altar
stone there must be, according to the rubrical prescrip-
tions, a sepulchre containing relics of saints and closed
with a stone.
The historical remarks made above explain this ven-
erable custom. The sixth synod of Carthage (401) en-
acted that no memoriae martyrum should be tolerated
without their relics being present or at least without
some historical reminiscence connected with the place."
In this canon only the chapels of martyrs are mentioned.
Yet, as seen above, the custom of placing relics in the
altars soon extended to all churches and altars. When
some missionaries in South America claimed the privilege
of consecrating altars without relics, the Holy Office,1*
1* S. Rit. C, May 34, 1901 (n. IT Schulte, /. c, p. 333 f.
"-.
4073). IB Can. 17 = c. 26, Dist. r, <f#
15 S. Rit. C. Sept. a8, 1872; Dec. cons. (Hefelc, Concil.-Cesck., II,
20, 1864 (nn. 3282. 3126). 72).
la S. C Indulg., March 20, 1846 10 Jan. 17, 1900 (Coll. P. F., n.
(Prinrivalli. n. S74>- 2076).
jle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
go ADMINISTRATIVE LAW
without entering into an historical discussion, insisted that
relics be placed in the altars, but allowed Mass to be
said on altars consecrated without relics. Gregory XVI,
in a time of persecution, granted to the Vicars Apos-
tolic of the Chinese empire and adjoining realms the
faculty of consecrating altars without relics.20 Consecra-
tion without relics would certainly be invalid 21 if no
faculty to the contrary had been obtained.
The sepulchrum is a small square or oblong opening
made in the table or solid support of the altar, in which
the relics are placed. In a fixed or immovable altar the
sepulchrum may be placed either behind the altar or mid-
way between its table and foot; or at the front; or mid-
way between its tabic and foot, or in the table at its
centre, somewhat towards the front edge, if its base be
solid or hollow; or in the centre on the top of the sup-
port, if it be solid."
In portable altars the sepulchrum is located on top of
the stone, usually towards its front edge.23 A portable
altar described as consisting of two parts, the upper one
of which was of stone, whereas the lower was of wood,
with a hollow space between both for the relics, which
thus touched both the stone and wooden parts of which
the sepulchrum was formed, was declared inadmissible.
The sepulchrum must be of natural stone, not of metal,
or brass, or cement; the lid, too, iruist be of stone, though
cement may be used for closing it." If cement was em-
ployed for the whole sepulchrum the altar must be recon-
80 S. C. P. F., July 8, i8j8 {Coll., « S. Rit. C. Sept. 16, 1881; Dec.
n. 860). US, 1882 ad I: July 28. 1883 (nn.
21 S. Rit. C, Rhcdon., Oct. 6, 3532, 35*7. 3585). Portable aJtar»
1837; April 29, 1887 (nn. 2777. may not *ie of pumice-stone or gyp*
3674). sum; S. RiL C, Jane 13. 1899 (n.
22 Schulte, CoHSfcranJo, p. 7 ft". 4032).
S3 S. Rit. C , Auft. 31. 1867 (n.
J 162).
a
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1 199 91
secrated ; but the S. Congregation granted faculties to use
the short formula and have it done by a delegated priest."
The cement to be used for closing the sepulchre must be
blessed by the bishop according to the formula prescribed
for fixed altars. The bishop must lay the cement on the
sepulchre and close it, but not place his seal on it.28
As to the relics to be placed in the sepulchre, it is un-
derstood that only authenticated ones are admitted. If
they are authenticated, it matters not whether they are
of nameless Saints.27 Doubtful or uncertain relics are
not to be mixed with authenticated ones.28 If relics lie
open and no attestation of their authenticity can be
found, they must be replaced by authentic ones and re-
enclpsed in the sepuchre.30
The quality of relics is not determined, except that
they must be of Saints. However, it is the general prac-
tice, confirmed by official decisions, that they should be
relics of at least one martyr, to which relics of con-
fessors and virgins may be added.80 Whether these
relics must be taken from the body (direct relics) or
may be obtained from objects connected with the Saint
(indirect relics), is nowhere stated, although some writ-
ers, like Gardellini, insist on direct relics.31
■
■
consecration of altars
Can. 1 199
§ 1. Ut Missae sacrificium super illud celebrari
possit, altare debet esse, secundum liturgicas leges,
10 S. Rit C, Aug. 30, 1901 (n. 2« S. Rit. C, Feb. 27, 1847 (n.
-4°8a). 394i)* •$"• C. sanavit def fetus.
MS. Rit C, May 10, 1890 (n. so S. Rit. C, Oct 6, 1837; Feb.
37*6). 16, 1906 (nn. 2777. 4»&o).
JTS. Rit C, Sept. 7, 1630 (a. 31 Cfr. Many, I. c, p. 208;
34^). Schcltc, /. c, p. io, alto reject* in*
28 S. Rit C, Dec. 5. 1851 (n. direct relics: but c. 36. Dirt. 1. dt
2991 id I). cons., admits them.
jle
v ,|,, Original fro m
UNIVERSITY OF WISCONSIN
92 ADMINISTRATIVE LAW
consccraturn ; idest vcl totum, si agatur de immobili,
vel ara tantuin portatilis, si de mobili.
§ a. Aras port a tiles, salvis peculiaribua privilegiis,
omnes Episcopi consecrare possunt ; quod vero spectat
ad alt aria imrnobilia, servetur prae scrip turn can. 1x55.
§ 3. Consecratio altaris immobilis, quae fit sine cc-
clesiae dedicatione, quamvis omni die fieri possit, magis
tamen decet ut fiat die dominico aliove festo de prae-
cepto.
§ 1. In order that the Sacrifice of the Mass may be
celebrated upon an altar, it must be consecrated accord-
ing to the liturgical laws; that is to say, if the altar is
fixed, the whole must be consecrated, if it is portable,
the altar table.
The resp. rites are contained in the Roman Pontifical.
and no deviation from, or abbreviation of them is ad-
missible; not even from the fast (on the day itself)
when a portable altar is to be consecrated. " However,
in forming the crosses from incense and putting on
the candles, the consecrator may be assisted by
priests.38
Fixed altars may be consecrated even in a church
which is only blessed, as a church is consecrated even if
the altar was not validly consecrated.84 The vigils must
also be observed before the consecration of an altar,
as is evident from the Roman Pontifical.
§ 2. Besides those especially privileged, all bishops
may consecrate portable altars ; as to fixed altars can.
1 1 55 must be observed.
Those specially privileged are the Cardinals, vicars
-
81 S. Rit C, May «. 1841 (n. 84 S. Rit. C, Sept. n, 1857. »J
2826). XV; June 17, 184J (nn. 3059,
33 S. Rit. C, Jon. 14, 1910 *6£a).
Q
-"■
(W44>.
oogle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
"-.
CANON 1 200 93
Apostolic and prefects Apostolic, as well as their pro-
vicars and pro-prefects during the time of vacancy,
abbots and prelates mdliusP (For the rest, see can.
625 and 1 147.) Besides these all bishops, whether resi-
dential or titular, may consecrate portable altars. But
fixed altars can be consecrated only by bishops and pre-
lates or abbots mdlius, if the latter have received the
blessing required.
§ 3. The consecration of a fixed altar, if performed
apart from the dedication of the church in which it is
stationed, may take place on any day, but it is becoming
that this ceremony should be performed on a Sunday or
holyday of obligation.
loss of consecration
Can. 1200
§ 1. Altare immobile amittit consecrationem, si
tabula seu mensa a stipite, etiam per temporis mo-
mentum, separetur; quo in casu Ordinarius potest
permittere ut presbyter altaris consecrationem rursus
perficiat ritu formulaque breviore.
§ 2. Turn altare immobile turn petra sacra amittunt
consecrationem :
iD. Si frangantur enormiter sive ratione quantitatis
fractionis sive ratione loci unctionis;
20. Si amoveantur reliquiae aut frangatur vcl
amovcatur sepulcri operculum, excepto casu quo ipse
Episcopus vel eius delegatus operculum amoveat ad
85 Cfr. can. 339, I 1, n. ao; can. mentions no right of other abbots in
204. I 2: can. jio, 82; can. 323, 8 2; this respect, and therefore only one
Bened. XIV, "Ex sublimt," Jan. resource remains: a directly granted
36, "53i fl 2; " Quam ex subltmi," privilege. This is the Roman juris-
Aug. 8, 1755. 1 *- The decree of S. prudence, not merely our individual
Rit. C, Sept. 37, 1659 (n. 1131), and subjective view.
oogle
Original from
UNIVERSITY OF WISCONSIN
94 ADMINISTRATIVE LAW
a
illud firmandum vcl reparandum vel subrogandum, aut
ad visitandas reliquias.
§ 3. Levis fractio operculi non inducit exsecra-
tioncm ct quilibet sacerdos potest rimulam cemento
firmare.
-
§ 4. Exsecratio ecclesiae non secumfert exsecra-
tionem altarium sive immobilium sive mobilium; ct
viceversa.
§ 1. An immovable altar loses its consecration if the
table or mensa is removed from its support, even if only
for a moment ; but in this case the Ordinary may grant
permission to a priest to reconsecrate the altar with the
short rite and formula.
Note that the support of a fixed altar is consecrated to-
gether with the table, as a whole, and therefore any re-
moval, no matter for whatever reason, of the mensa
from its support, necessitates reconsecration.88 Rut if
only the images, or titles, or ornaments are removed,
whilst the support and the mensa remain united, reconse-
cration is not required.87
§ 2. A fixed as well as a portable altar loses its con-
secration :
i.° By a fracture which is regarded as very consid-
erable by reason either of the break itself or of the
anointed place;
2.0 If the relics are removed, or the lid of the sepul-
chre is broken or removed, unless it be done by the bishop
or his delegate for the purpose of fastening, repairing,
or replacing it, or for the purpose of inspecting the
relics.
The Code adopts the decision of S. Rit. C. concerning
aeS. Rit. C, May 15. 1819 Cn. Iff S. Rit G, Julr 7. 1755 (n.
*599), ft plurics. 2450).
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1200 95
a
the definition of a fractura enormis.™ Two reasons de-
termine the character of a fracture: its extent and the
place where it occurs. If the mensa itself were split into
two, three, or four pieces, especially if it touched the se-
pulchre, the fracture would be " enormous " in the sense
of the law.D0 If an anointed corner or cross would crack,
the fissure would be sufficient to require reconsecration,*0
provided of course the cross itself would be cracked.
For if only a comer would break ofT, with the cross in-
tact, we hardly believe that the whole altar would have
to be reconsecrated. The mere breaking of the seal
which is attached to the reliquary of the sepulchre would
not entail loss of consecration.41 If the removal of the
stone covering the sepulchre is doubtful, reconsecra-
tion must take place, but the S. Congregation, upon re-
quest, may grant the use of the short formula.43 If the
stone covering the reliquary was loosened, but the se-
pulchre was not laid bare, and the sacristan (lay brother)
applied lime or cement to fasten it, the consecration is
not lost.43 But if a priest would open the sepulchre and
close it again, the consecration would be lost.44 How-
ever, this last statement now requires a modification. If
the pastor acted in the name of the bishop, as his delegate,
for the purpose of fastening, or repairing, or replacing
the lid of the sepulchre, or of inspecting it, no loss of
consecration would be entailed. The fact of delegation,
however, would have to be expressed, either habitually or
per modum actus.
88 S. Kit C, Oct 6, 1837 (n. 43 S. Rit. C.f May 18, 1883 (n.
2777). S575).
a» S. Rit. C, June 33, 1879 <n. « S. Rit C, Sept. 30, 1875 (n.
3497)- J379>-
40 S. Rit C, Oct. 6, 1837 (n. 44 S. Rit. C, Aug. 31. 1857, ad V
2777). (n. 3U2).
41 S. Rit C, Dec. 5. i85ii n. I
<n. 399 «>.
Go >gle
I , Original fro ni
UNIVERSITY OF WISCONSIN
■
96 ADMINISTRATIVE LAW
§ 3. A slight fracture of the cover of the sepulchre
does not involve desecration, and any priest may fill it up
with cement.
§ 4. The desecration of a church does not involve
desecration of either its fixed or portable altars, and con-
versely. Thus, if soldiers had desecrated a church, but
left the altars untouched, the latter would not need recon-
secration.45
titles of altars
Can. 1201
§ 1. Sicut ecclesia, ita quodlibet etiam ecclesiae
o
altare, saltern immobile, proprium sibi titulum habeat.
§ 2. Titulus primarius altaris maioris idem debet
esse ac titulus ecclesiae.
§ 3. De Ordinarii licentia mutari quidem potest al-
taris mobilis, non autem altaris immobilis titulus.
§ 4. Altaria Beatis etiam in ecclesiis et oratoriis
quibus eorum officium et Missa concessa sunt, dedicari
nequeunt sine Sedis Apostolicae indulto.
§ i. Like the church, so also the altars of a church,
at least those that are fixed, must have each its own title.
§ 2. The principal title of the main altar must be the
same as that of the church. For instance, if the church
is dedicated to the Immaculate Conception, this must also
be the title of the high altar. Besides this, the altar
may also bear the name of a Saint, e.g., St. Columb-
kill.
§ 3. With the permission of the Ordinary40 the title
of a portable altar may be changed, but not the title of
<
«3 S. Rit. C, March 3, jBji (n. « The Ordinary for exempt reli-
>6ia). giou« 11 their superior major.
jfe
£ ' " ^ -. iL» Original from
UNIVERSITY OF WISCONSIN
—
a
N
CANON 1202 97,
a fixed altar. The latter requires a papal indult.*T Thus,
for instance, if a new religious congregation obtains a
church that formerly belonged to an order, the old title
of the altar, or church, respectively, must be retained for
the main altar, and even on the side altar, if this is a
fixed one, the former title under which the altar was dedi-
cated must be placed, although a new title or image, e.g.,
of the founder of the congregation, may also be placed
there.48
Altars may not be dedicated to the Blessed without
an Apostolic indtilt, even in churches and oratories for
which the office and Mass of the resp. Beat its has been
granted. This law binds also exempt religious, who
are therefore not allowed to erect an altar in honor of
a Blessed of their order without a papal induhV
*0
profane uses not tolerated
Can. 1202
§ 1. Altare turn immobile tum mobile debet esse
divinis tantum officiis et praesertim Missae celebrationi
reservatum, quolibet profano usu prorsus excluso.
§ 2. Subtus altare nullum sit reconditum cadaver;
cadavera autem quae prope altare sepulta forte sunt,
distent ab eo saltern spatio unius metri; secus Missam
in altari celebrare non licet, donee cadaver removea-
tur.
§ 1. Immovable as well as portable altars are ex-
clusively reserved for divine service, and every pro-
fane use must be excluded.
47 S. Bit. C, Nov. 10, 1906, ad ** S. Kit. C, April 17, 1660 (n.
Ill (n. 4»9*>. 1156)-
« S. Rit. C. Aug. 37. 1836, ad
V, VII Tn. 3?S2),
jle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
9*
ADMINISTRATIVE LAW
§ 2. No corpses are to be entombed beneath the al-
tar; if corpses are buried near the altar, a space of one
metre 50 at least must intervene, otherwise Mass may
not be celebrated on the altar until the body is removed.
A quaint custom prevailed in the archdiocese of Du-
raz20. Mohammedan women, when sick, took refuge
under the antipendium of the altar on which Mass was
said. This was promptly forbidden by the S. Congrega-
tion.51 A less offensive though also rejected custom is
that of leaving the altar cover rolled up on a stick on the
altar during Mass.82
Altars should not be used as store-rooms, as this is
forbidden by the general rubrics.
§ 2 forbids the saying of Mass on an altar which is
too near a tomb or grave which contains the corpse
or body of a person not canonized or beatified. The
distance of one meter (39 inches) must be taken in the
full, though not strictly in the mathematical 01 sense,
and the dimensions are to be measured in every direc-
tion,— height, length, width, depth, including the pre-
delta*4 If an altar is separated from the tomb by a stone
chamber, although the distance is less than one meter,
Mass may be said.** TTiis distance must be observed
also in cemeteries, vaults, and subterranean chapels, no
matter whether they belong to religious or seculars.6*
Removal is necessary if morally possible. The S. Con-
gregations have permitted bodies to remain if the re-
BO One metre i» equal to 39
inches. The movement for intro-
ducing the metric •ystcm into the
U. S. and EnsSand can only be wel-
comed,
Bi S. C. P. F., Feb. 15, 1837
{ColL, n. 854).
as S. Rit. C, June a, 1883, ad II
<n. 3576)-
63 S. Rit. C, Jan. 12, 1897. ad
II; Aug. 3, 1901 <nn> 3944. 4°8a).
b« S, Rit. C, Feb. 13, 1666, n. 5;
July 7. 1766 (nn. 1333. 2479).
65 S. Rit. C. July 27. 1878 ad II;
July 18, 1902 (nn. 3460, 4100).
06 S. Rit. C,. Sept. 28, 1872;
April 31, 1873 (nn. 32B3, 3-'94)-
►ogle
Original from
UNIVERSITY OF WI5C0NSI
CANON 1202 99
moval could be effected only with difficulty.57 One de-
cision reads: "If k can be done conveniently."58
Piety and expenses should also be taken into considera-
tion.
67 S. C. P. F., Nov. 22, 1790, ad 58 S. Rit. C, 2, 1875 (n. 3339):
3 iCotL d. 003.1 ■ " J* commode fieri poteit."
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
TITLE XII
:
ECCLESIASTICAL BURIAL
burial vs. cremation
Can. 1203
§ x. Fidelium defunctorum corpora scpelicnda
sunt, rcprobata corundem crematione.
§ 2. Si quis quovis modo mandaverit ut corpus
suum cremctur, illicitum est hanc exsequi voluntatem;
quae si adiecta fuerit contractu!, testamento aut alii
cuilibet actui, tanquam non adiecta habeatur.
■
§ 1. The bodies of the faithful must be buried, cre-
mation being reprobated.
§ 2. Should any one in any way order his body to be
cremated, this order cannot lawfully be carried out, and
any stipulation, will, or disposition to that effect must be
disregarded.
These canons embody a constant, time-honored tradi-
tion, which, while it does not directly involve a dogma,
has been repeatedly enforced, especially against the
Masons. Jews, Greeks, and Romans, various as their
customs were at various time, nearly always buried their
dead.1 When, towards the end of the XII Ith century,
the custom was introduced of boiling the corpses of those
who had died in foreign lands, in order to render them
l Cfr. Cath. Encycl., Vol. IV, *. v., " Cremation."
100
>Ic
( * ^ .. %\s* Original from
UNIVERSITY OF WISCONSIN
p
"-.
CANON 1203 101
more easily transportable. Pope Boniface VTTI strictly
forbade this abuse, which he styled abominable.* It re-
mained for the Freemasons who gathered at Naples, in
1869, to promote cremation and make it part and parcel
of their programme. Cremation is frequently practiced
in missionary countries because of various difficulties.
The Vicar Apostolic of Vizagapatam in Hindustan solic-
ited an answer to the following question : When a dy-
ing pagan asks to be baptized, the missionary baptizes
him without bothering himself whether the body may
be cremated or interred, being convinced that his fam-
ily would not heed the desire of the deceased, even if
he insisted on burial. Is this allowable? The answer
was that the missionary should not approve of cremation,
but remain passive with regard to it, administer Baptism,
and instruct the people.1 Anoiher pertinent decision is
that rendered by the Holy Office * to the effect that it is
forbidden to be enrolled in a lodge or society the pur-
pose of which is to promote cremation without danger of
incurring the censures laid upon Masonic societies ; and
that it is also forbidden to order one's own body or
the bodies of others to be cremated. The decision ex-
horts Ordinaries to instruct the faithful regarding the
abominable custom of cremating human bodies. An-
other decision concerns amputated limbs, legs or arms.
The case was reported from a hospital in the U. S. The
answer was that the amputated limbs of non-Catholics
may be cremated, if the physician so advises, but those
of Catholics should be buried, if possible, in consecrated
a Cfr. c l, Extrov. Comm., Ill, (raiofont), which the pagans
6, de tepulluris. thought would be destroyed by the
a S. C. P. F., Sept *7t 18S4 Catholic religion.
(Coll., n. 1626), Instruction was 4 S. O.. May 19, 1886 {Coll. P.
necessary because cremation was F., a. 1657); cf. also S. O., July
considered a privilege of the caste 27, 189a (ibid., 1808).
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
p
102 ADMINISTRATIVE LAW
ground ; else, anywhere. If the physician orders crema-
tion, the sisters shall prudently and silently obey his com-
mand. The advice is added that a small consecrated lot
be kept in the garden adjoining the house for the purpose
of burying amputated limbs of Catholics.8
ecclesiastical burial
Can. 1204
Sepultura ecclesiastica consistit in cadaveris trans-
latione ad ecclesiam, exsequiis super illud in cadem
celebratis, illius depositione in loco legitime deputato
fideiibus defunctis condendis.
[Ecclesiastical burial consists in bringing the body to
the church, holding the funeral service over the same in
the church, and entombing it in a place destined for the
burial of departed Catholics.
The Christian funeral rite differed greatly from the
pagan, as a passage from Minuctius Felix eloquently
demonstrates. The rules laid down in our canon were
a
observed conscientiously and religiously by the early
Christians, They embalmed or enshrouded the body,
accompanied the corpse with tapers or torches, singing
psalms and hymns, bringing an oblation, (oblaiio pro dor-
mitionc) and celebrating the love feast.8 The whole
ceremony breathed belief in the resurrection of the body.
It is therefore not surprising to read of the insistence of
the Roman Court upon the full funeral rite. The cus-
tom of burying the bodies of the faithful from their
5 S. O., Aug. 3, 1S97 CiWi. n. aresccntem coronam, scd a Deo
1975), aeternis /toribuj nMMJH sustine-
R " ,V« moriuoi coronamus: nos mus;" cfr. Armellini, Leeioni di
exequies adornamui cadem tranquilli- Arckeofoffi* Crutiana, 1898, p. Sq f,
fate, quo vivimus; nee odnectimus
jle
£ - ^ , ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1204
103
homes, without bringing them to church, is styled an
abuse to be abolished.1 Even in missionary countries,
where superstitions are mingled with the Catholic rites,
the Roman Ritual should be observed and funeral Mass
be said praesente cadaver e, if at all possible.8 This serv-
ice may also be held over human ashes or bones brought
from foreign countries.* The Church does not abhor
modem conveyances, and hence, no matter what means
are used for carrying the dead to the cemetery, the pastor
should accompany the funeral.10
Note well the three parts of a Christian funeral, vis.:
transfer of the body to the church; funeral service in the
church; interment in the graveyard. All three acts are
accompanied by prayers.
The Roman Ritual u makes a distinction between the
burial of adults and that of children.
The Code now proceeds to treat of cemeteries, of fu-
neral services, and, lastly, of the refusal of ecclesiastical
F
burial.
D
1
7 S. Rit. C. April 21. 187* (n.
voluntary or self-ordered cremation
2
3*9»>.
took place.
EL
B S. O., April 10, 1777, id a
10 S. Rit. C, July is, 1876 (n-
h
(Coll. P. F., n. 521).
3405).
3
0 S. Rit. C, Aug. it, 1883, ad I
11 Tit. VI, c. 3: c. 7-
■■"■
(n. 3693): provided, of course, no
~
■"■
"■
■
"
■
~
■■>
-
a
-
=
~-
•-■
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
CHAPTER I
CEMETERIES
blessed cemeteries
Can. 1205
-
§ 1. Cadavera fidelium scpelienda sunt in coemete-
rio quod, secundum ritus in probatis liturgicis libris
traditos, sit benedictum, sive sollcmni sive simplici
benedict ione ab iis data de quibus in can. 11 55, 1156.
§ 2. In ecclesiis cadavera ne sepeliantur, nisi aga-
tur de cadaveribus Episcoporum residentialium, Ab-
batum vel Praelatorum nullius in propria ecclesia se-
peliendis vel Rornani Pontificis, regalium personarum
aut S. R. E. Cardinalium.
§ 1. The bodies of the faithful must be buried in a
cemetery, which may be solemnly or simply blessed ac-
cording to the ritual books. The solemn blessing", as con-
tained in the Roman Pontifical, can be imparted only by
the Ordinary of the diocese, according to can. 1 155 ; the
simple blessing may be imparted by the local Ordinary, if
the cemetery belongs to the secular or non-exempt reli-
gious clergy. However, the bishop may delegate any
priest1 for this function. If the cemetery belongs to
exempt religious, the major superior or his delegate is
competent.2
a
c
\Rit Rom., tit. VIII, c. 29; can. 1156; S. Kit. C, Feb. 9. 1608 (n.
246).
2 Can. 1155-
104
oogle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1205 105
a
The necessity of burying the bodies of deceased Cath-
olics in consecrated ground has been generally insisted
upon, even for pagan provinces, where it was customary
to bury infants, not in the family grave, but elsewhere.3
In Mossul it was customary for Catholics as well as schis-
matics to be buried in one and the same family lot or vault.
This custom was tolerated, as it could not be abolished
without scandal.4
The cemetery must not be considered as blessed merely
because the adjoining church tvas blessed. These two
blessings are entirely different rites.6 If the whole ceme-
tery was blessed, it is not necessary that the single graves
be blessed again, and therefore the benedicto tumuli under
the rubric : " when they have reached the grave, the priest
shall bless it if it is not already blessed," should be
omitted.*
There is an apparent conflict between this and a deci-
sion of the same Congregation,7 which orders all graves
even in a cemetery already blessed to be blessed again if
the grave is made of new material : quoties agitur de
sepulcho ex nova materia confecto. The contradiction
is only apparent. For the last-mentioned decision re-
gards a new grave made in the shape of a crypt or vault
of stone or cement which has been newly added to the
cemetery. A simple grave (fossa) dug in the ground
already blessed does not need to be reblessed.
§ 2. No bodies shall be entombed in churches except
— if the civil laws permit it — the bodies of resident bish-
a S. 0.. Feb. 20, 1801 (Coll. P. F., A S. Rit. C, Feb. 21, 1896 (n.
n. 649): tbis was done because of 3888).
the belief that infanta and unmar « S. RiL Cf May 37, 1876. »d V
ried persons had no one to mourn (n. 3400).
or reverence them. 7 S. Rit. C, Sept. 4, 1800, ad I
« S. O.. April 13, 1896 (Coll. (n. 35*4).
P. F„ u. 1089).
>Ie
, .] , Original from
UNIVERSITY OF WISCONSIN
■
106 ADMINISTRATIVE LAW
ops and prelates or abbots nullitis. These may be buried
in their own church. The same privilege is accorded to
the Roman Pontiff, royal personages and cardinals.
We said, "if the civil lazes permit it" for it is a well-
known fact that in Rome even Cardinals must be buried
in the common city cemetery. Although this law is not
in perfect keeping with the mind of the Church, yet it
cannot be styled iniquitous as far as the mere prohibition
of burial in churches is concerned, though in as far as it
compels the promiscuous burial of baptized with non-
baptized, and of criminals with distinguished prelates, it
certainly is unjust and savors of intolerance. The first
part of the law, to wit, forbidding burial in churches,
would not be objected to by the ecclesiastical authorities,
for, as will be seen from the following canon, the Code
only demands free possession of cemeteries, whether situ-
ated inside or outside of church buildings. If a prelate
mentioned in § 2, can. 1205, is buried in a church, his
grave, though made in the middle of the choir, must be
even with the floor and may not project over the altar of
the confession Besides, the distance of a meter from the
altar must be observed, as prescribed in can. 1202, § 2.
RIGHTS OF THE CHURCH IN REGARD TO CEMETERIES
9
Can. 1206
§ 1. Ius est catholicae Ecclesiae possidendi propria
coemeteria.
§ 2. Sicubi hoc Ecclesiae ius violetur nee spes sit
ut violatio reparetur, curent locorum Ordinarii ut
coemeteria, societatis civilis propria, benedicantur, si,
qui in eis condi solent, sint maiore ex parte catholici,
fi S. Rit. C, Feb. 20. 16*7 (n. 433).
Go >gle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1206 107
St
aut saltern ut in eis catholici spatium habeant, idque
benedictum, sibi reservatum.
§ 3. Si nc hoc quidcm obtineri possit, toties quotics
bcncdicantur, secundum ritus in probatis liturgicis
libris traditos, singuli tumuli.
§ 1. The Catholic Church has the right to possess her
own cemeteries.
§ 2. Where this right of the Church has been vio-
lated, and there is no hope of recovering it, the local
Ordinaries shall take care that the civil cemeteries be
blessed, provided the majority of the persons to be buried
in them belong to the Catholic faith, or at least that Cath-
olics be granted a separate space, which should be blessed.
§ 3. If not even that much can be obtained, then the
single graves must be blessed according to the liturgical
books.
§ 1 is nothing else but a corollary from the doctrine
of the corporate nature of the universal Church and its
autonomous parts. Besides the sacred character of the
burial grounds, the right of possessing them exclusively
and independently of any outside corporation or society
should be guaranteed to the Church. This right is evi-
dent from the principle of canon law : * With those
with whom we have had no communion when living, we
do not communicate when dead." ° This right, inherent
as it is in her very constitution, the Church can exercise
effectively only if she possesses her own burial grounds.
§ 2 and § 3 are taken from an authentic answer of the
Holy Office,10 necessitated by the tendencies of the so-
called Liberal school A further declaration says that in
common cemeteries, destined for Catholics and non-
»C. 12, x. III, a8; Piuj IX, 10 S. O., Feb. 12, 1863 {Coll. P.
" S'unquam eerie," June tx, 1868. F., n, ;-:,->.
>Ie
£ * ^ v J„ Original fro ni
UNIVERSITY OF WISCONSIN
108 ADMINISTRATIVE LAW
Catholics alike, a separate plot with a separate entrance
should be obtained for Catholic burials.11
In the United States the Church has so far been al-
lowed to possess her own cemeteries. " Rights of burial
under churches or in cemeteries are so far public that
private interests in them are subject to the control of the
public authorities having charge of police regulations."12
This, of course, also implies expropriation in case of pub-
lic utility or health. Otherwise no state or county or
municipal authority shall interfere with the right of the
Church in matters of cemeteries and burial.18
■
interdict, violation, etc., of cemeteries
Can. 1207
Quae de interdicto, violations reconciliatione cc-
clesiarum canones praescribunt, etiam coemeteriis ap-
plicentur.
The regulations of canon law concerning the interdict,
the desecration and reconciliation of churches also apply
to cemeteries. Hence wc refer to can. 11 72 ff. Note
well can. 1172, § 2, in order not to apply the old canons.
What is to be said on interdicts will find its place under
the respective heading.
owners of cemeteries
Can. 1208
§ 1. Paroeciae suum quaeque coemeterium habe-
ant, nisi unum pluribus commune ab Ordinario loci sit
legitime constitutum.
11 S. C. P. V., March zg, 1830 Church Law, 1917, Ch. XVI, p.
(ibid., n. Su). 439-
12 Zollmann, American CMl is /bid.: "While thui the right
►ogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1207-1208
109
§ a. Rcligiosi cxempti possunt habere coemeter-
ium propriumt a communi coemeterio distinctum.
§ 3. Etiam aliis personis moralibus vel familiis
privatis permitti potest ab Ordinario loci peculiare
sepulcrum, extra commune coemeterium positum, et
ad in8tar coemeterii benedictum.
§ 3. Etiara infantiurn corpuscula, quatenus com-
mode fieri potest, speciales et separates ab aliis loculos
et sepulturas habeant.
§ 1. Each parish should have its own cemetery, un-
less the local Ordinary assigns a common cemetery to
several parishes.
and duty of a cemetery owner to
vacate it in a proper case is per-
fectly plain, his right to deter-
mine who may be buried in it
is equally clear. Without such
right, church societies might find
their cemeteries interminable
sources of trouble. Not only
might the peace of the society be
disturbed by the burial of a per-
son objectionable to its members,
but the society itself might thereby
actually be disrupted. To prevent
such a result religious organiza-
tions may not only establish ceme-
teries exclusively denominational,
but may also guard and protect
them by such rules and regula-
tions as make effective the objects
and purposes of their organiza-
tion. These rules and regulations
will enter into and become a part
of every contract for a lot in such
cemetery, unless tlio proof is clear
and convincing that a contract of
a different kind was properly made
with the lot owner by a duly au-
thorized agent of the organization.
When a party applies for a burial
plot at the office of a distinctly
Roman Catholic cemetery, it is with
the tacit understanding that he is
either a Roman Catholic, and as
such eligible to burial, or at least
that he applies on belialf of those
who are In communion with the
Church. The entire business is
transacted on that basis, It fol-
lows that the mere payment of
fees and charges confers the privi-
lege of burial only ' in the mode
used and permitted by the cor-
poration.' While, therefore, the
trustees of a church society who
hold a cemetery as a ' free ' burial
ground cannot prevent the burial of
a church member beside her husband
where there is space left for that
purpose; a person who has sepa-
rated himself from the society, or
who according to its decision had
ceased to be a member of it, is
not entitled as a matter of right to
be buried in such cemetery,
though he had contributed to it
while still a member. Nor may
even a member of such organiza-
tion bury his profligate son in such
cemetery over the objection of the
organization, nor be buried himself
with ceremonies which are objec-
tionable to it"
jle
Original from
UNIVERSITY OF WI5CGNSI
no ADMINISTRATIVE LAW
a
§ 2. Exempt religious may have their own cemetery,
distinct from the common cemetery of the faithful.
§ 3. The Ordinary of the diocese may permit other
corporations and private families to have their own
burial places separate from the common one and blessed
like a cemetery.
Can. 1209
N
■
§ i. Turn in coemcteriis paroecialibus, ex licentia:
scripta Ordinarii loci eiusve delegati, turn, in coeme-
terio alius personae moralis, ex licentia scripta Su-
perioris, fideles sibi suisque exstrucrc possunt sepulcra
particular ia ; quae, de consensu eiusdem Ordinarii aut
Superioris, possunt quoque alienare.
§ 2. Sepulcra sacerdoturn et clericorum, ubi fieri
potest, a sepulcris laicorum separata sint ac decentiore
loco sita; praeterea, ubi id commodum fuerit, alia pro
sacerdotibus, alia pro inferioris ordinis Kcclesiac mi-
nistris parentur.
§ 1 permits lots or vaults (sepulchra par licit laria) to be
constructed with the written consent of the local Ordinary
or his delegate on the parish cemetery. The same writ-
ten consent may be given by the superior, either local or
major, of the corporation on whose cemetery such a pri-
vate sepulchre is chosen by the faithful. These private
sepulchres, or graves, or lots may, with the consent of the
Ordinary or Superior, be alienated. Alienation is, of
course, here to be understood of a conveyance for burial
purposes.
If suspicion of simony should arise from the term
alienation, it may be observed that this is only an appar-
ent difficulty, easily removed. If a certain sum would be
charged for the grave itself, by reason of its being con-
oogl
Original from
UNIVERSITY OF WISCONSIN
CANON 1210-1211 in
a
secrated ground, there would indeed be simony. How-
ever, here there is question only of the exclusive right of
usufruct, which is reserved to a determined person or
family with regard to a specified lot. The cemetery itself
or any part thereof is not sold or leased But the exclusive
right to a determined and honorable place has a material
value and its sale, therefore, does not imply simony."
§ 2. Priests and clerics should, if possible, have a
special burial place, located in a more prominent part of
the cemetery ; the priests' lot should, if it can conven-
iently be done, be distinguished from that of the lower
clerics.
§ 3. The burial place of infants should be separated
from that of adults, as there is also a special rite for the
burial of infants. Exempt religious, too, if they have
plots for elective sepulture in their cemeteries, should set
apart lots for the burial of children.15
keeping of cemeteries
Can. 1210
Quodlibet coemeterium sit undique apte clausum et
caute custoditum.
Can. 121 1
Quodlibet coemeterium sit undique apte clausum et
ad quos spectat, ne in coemeteriis epitaphia, lauda-
tiones funebres ornatusque rnonumentorum quidquam
prae se ferant a catholica religione ac pietate absonum.
1* Cfr. Many, /. c, p. 253 f.
J&S. Bit C, Dec. ia, 1620 (a. J83).
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
pi
112 ADMINISTRATIVE LAW
Can. 1212
Praeter cocmeterium benedictum alius, si haberi
queat, sit locus, clausus item et custoditus, ubi ii hu-
mcntur quxbus scpultura ccclcsiastica non conccditur.
Every cemetery shall be properly closed and carefully
guarded.
The local Ordinaries, pastors and superiors, whom it
concerns, shall take care that the inscriptions on the tomb-
stones, eulogies, and adornments of the monuments be in
keeping with Catholic faith and piety.
Besides the cemetery, or that part which is blessed,
there should be a special plot, properly enclosed and
guarded, to serve as burial-place for those who are denied
ecclesiastical sepulture.
WAITING TIME
c
Can. 1213
Nullum corpus sepeliatur, praesertim si mors repen-
tina fuerit, nisi post congraum temporis intervallum,
quod satis sit ad omnem prorsus dc vero obitu dubita-
tionem tollendam.
2
No body should be buried, especially in case of sudden
death, until sufficient time has elapsed to disperse all
doubt as to death having really set in. This admonition
was originally given to missionaries,1" probably for lack
of civil provisions on the subject. For where civil laws
and the coroner attend to this matter, this canon is super-
fluous. For the rest, the process of embalming, properly
1« S. 0., April 10, 1777 (Coll P. F., n. 321).
oogle
Original from
UNIVERSITY OF WISCONSI
—
a
N
CANON 1214 113
performed, will obviate the danger of burying anyone
alive.
EXHUMATION
t
Can. I2T4
5
§ i. Nullum cadaver perpctuac sepulturae ecclcsi-
asticae ubivis traditum exhumare licet, nisi de licentia
Ordinarii.
§ a. Ordinarius licentiam nunquam concedat, si ca-
daver ab aliis corporibus certo discern i nequeat.
§ I. No body that has been laid to final rest by eccle-
siastical burial, can be exhumed without the permission
of the Ordinary.
§ 2. The Ordinary shall never grant this permission,
if the corpse cannot with certainty be distinguished from
other bodies.
This law is merely a corollary of the right of the
Church to possess her own cemeteries. Difficulties may
arise where the cemeteries belong to the municipality.
Yet even there the Ordinary's permission is required, be-
cause a grave must be considered as sacred, since it has
been blessed, and the Church is the quasi-custodian even
of the bodies of the faithful.
In closing this chapter it may be well to note briefly
what rights the civil government may claim with regard
to cemeteries and the burial of Catholics.
It has the right (1) to confine cemeteries to a district
lying outside of the community of the living; (2) to de-
termine the order of the graves and their depth, and to
empty the graves after a certain lapse of time; (3) to
establish a certain interval between death and burial, and
to postpone burial in case of sudden death or crime, so
p
".
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-
114 ADMINISTRATIVE LAW
as to ensure an autopsy; (4) to demand exhumation
through the proper authority; (5) to ordain, through the
proper authorities, that during epidemics, or the preva-
lence of contagious diseases, corpses be taken directly to
the cemeteries.17
IT Cfr. Many, /. c, p. 371.
_
i ( ' U1L, Original from
^ lOOgK. UNIVERSITY OF WISCONSI
■
CHAPTER II
FUNERAL SERVICES AND INTERMENT
conveying bodies to church
Can. 1215
Nisi gravis causa obstet, cadavera fidelium, ante-
quam tumulentur, transferenda sunt e loco in quo
reperiuntur, in ccclcsiam, ubi funus, idcst totus ordo
exsequiarum quae in probatis liturgicis libris descri-
buntur, persolvatur.
Unless there is a weighty reason for the contrary, the
bodies of the faithful must, before interment, be taken
from the place where they are (place of death) to a
church, where the entire funeral service prescribed by
the sacred liturgy shall be held.
The clergy of Brescia, Italy, had some doubts as to the
admissibility of the ecclesiastical rites when a corpse was
conveyed from the house to the church and from there to
the cemetery by a vehicle. But the S. Congregation de-
cided that the manner of conveyance does not interfere
with the sacred liturgy and that the clergy should accom-
pany the funeral to the graveyard,1 as the people desired.
The text says : nisi gravis causa obstet. Since the
sacred rites involve a grievous obligation, only a real, not
an imaginary, reason can dispense from their observance,
1 S. Rit. C, March 5, 1870 (a. jaia),
"5
;Ie
J , Original fro ni
UNIVERSITY OF WISCONSIN
-
■
pi
"-.
116 ADMINISTRATIVE LAW
though we do not wish to deny that a reasonable custom
may be admitted, especially in large cities. It is more
important to bring the body to church, than to accompany
it to the graveyard, provided the grave has been blessed.
PAROCHIAL RIGHTS IN REGARD TO BURIAL
■
Can. 1216
c
S
§ i. Ecclesia in quani cadaver pro funere transferri
debet, ex iure ordinario est ecclesia propriae defuncti
paroeciae, nisi defunctus aliam funcris ecclesiam legi-
time elegcrit
§ a. Si defunctus plures habuerit paroecias pro-
prias, ecclesia funeris est ecclesia paroeciae in cuius
territorio decessit
§ i. By common law the corpse of a departed Cath-
olic is to be brought to the parish church of the deceased,
unless he lawfully chose another church before his death.
§ 2. If the deceased belonged to several parishes, the
funeral should be held in the church of the parish within
which he died.
When the claim of another church is doubtful, the right
of the deceased's parish church must prevail.
The canon law formerly distinguished three reasons
which entitled a priest to bury a deceased person : elec-
tive sepulture, the family grave, and the parish burial.1
Our Code mentions but two: parish burial and elective
sepulture. But can. 1218, § 3, and 1229 admit the ances-
tral right, although only in a subordinate way, as is evi-
dent from the very position in our canon, which vindicates
the first, or at least general and ordinary right to the
t Cfr. c. 1, x, III, a8; c. 3, 60, cause, says the text, this was the
III, 12, where the seputcrum maio- custom of the patriarch*.
rum occupies the first place, be-
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 1216 117
parish church of which the deceased was a member dur-
ing life. However, the right of choosing his own burial
or last resting place is acknowledged and granted to
everyone not excluded by law, as determnied by can.
1223-1226. Provided, then, that no special church was
designated before death by the persons who are allowed
to choose either for themselves or for others, the body
must be brought to the parish church, i. e., the one to
which the deceased belonged as a member when living,
and of which he was a communicant.3 This connection
between church and parishioners is established by domi-
cile or quasi-domicile, either being sufficient to render
one a member of a parish. To linguistically distin-
guished parishes the same principle applies. The per-
sonal right of the parishioners prevails over territorial
considerations.4
§ 2 of our canon provides for a case which may arise
from the fact that one belongs to several parishes. Here
a pertinent decision: A family had its domicile in the
city and belonged to St. James* parish. The same family
also had a summer villa in the parish of St. Mary, where
the wife and mother lived every year for about eight
months, and where she died, after having received the
sacraments at the hands of St. Mary's pastor, and was
buried by him. The S. Congregation decided that the
pastor of St. Mary's was entitled to hold the funeral
service and to receive the fee.5 This decision was per-
fectly natural. One may have two domiciles or quasi-
domiciles which suffice for contracting parish rights, and
5 Reiffenstuel fill, 38, n. 6) 4 rignateHi, Consultations Cano-
justly remarks: " ss. canones in nicoe, Vol. Ill, Cons. 48, n. a*.
ordine ad jcfulturain no* attendant B S. C C, March ia, 1881 (A.
locum, ubi quis in extremis rcfieitut, S. S., t XIV, 209 ff.).
ted ubi in z-ivis coeteiti ptbulo refici
conntevit."
oogle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
n8 ADMINISTRATIVE LAW
servants, hired hands, soldiers, students, nurses, teachers,
etc., may contract a quasi-domicilc, although they retire
to their homes several times each year, and have no inten-
tion of staying longer than necessary. If they reside
anywhere continuously the greater part of the year this
is sufficient to contract a quasi-domicile.4
■
Can. 12 i 7
In dubio de iure alius ecclesiae, ius propriae eccle-
siae paroccialis semper praevalere debet.
In doubtful cases, says can. 1217, the right of one's
own parish church prevails. The reason lies in the right
of the pastor, which corresponds to his duty of adminis-
tering the sacraments, and he should not be deprived of
the honor and material advantage.7 Therefore if either
the fact or the right are doubtful, the deceased's own
parish comes first. The fact is doubtful if it is uncer-
tain where one died or was killed. The right is doubtful
if membership in the one or the other parish cannot be
clearly established, or the will of the deceased regarding
sepulture cannot be proved.
transfer to one's own church
Can. 1218
§ 1. Licet mors acciderit extra propriam paroe-
ciam, cadaver tamen in ecclesiam paroeciae propriae
quae vicinior sit, ob funus transferendum est, si ad earn
commode pedestri itinere asportari possit; secus in
ecclesiam paroeciae in qua mors accidit.
§ 2. Ordinarii est pro suo tcrritorio, inspectis pe-
-
<
fl A. S. S., I. c, p. 214.
T Cfr. cc. 2, 3, 6, x, III, 12; c a, I Vtrum ne, Cltm. Ill, 7.
ioi >gle
/■"* ^ s ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1218 119
St
a
culiaribus circumstantiis, distantiam aliaque adiuncta
designare, quae translationem cadaveris ad ecclesiam
funeris aut locum sepulturae incommodam reddant ; ct
si paroeciae ad diversas diocceses pcrtineant, designa-
tio attenditur Ordinarii dioecesis in qua defunctus
supremum diem obiit.
§ 3. Licet translatio ad ecclesiam funeris aut ad
locum sepulturae incommoda sit, semper tamen inte-
grum est familiaeF heredibus, aliisve quorum interest,
cadaver illuc deferre, susceptis translationis expensis.
§ i. Even though a person has died outside his own
parish, the corpse must be brought for the funeral service
to his own parish church, if it is the nearest, and the
corpse can be conveniently carried there on foot (pcdcstri
itinere) ; otherwise it is to be carried to the church of the
parish in which the person died.
This section must be understood in the light of the old
law, which exempted transportation to the parish church
in case of danger.8 Transport was by most canonists
presumed to be dangerous when it took a day's journey.
Others more reasonably held that the judgment regarding
the existing danger must be left to the family of the de-
ceased. In our country and day of automobiles and
motor hearses this canon has little practical value. How-
ever, we believe that the term iter pedestre is here to be
taken, not exclusively as the mode of conveyance, but as a
conditional supposition, as if we should say: supposing or
provided the funeral journey could be made on foot.9
§ '2 provides for a more practical mode of judging
distance and inconvenience. The Ordinary may, after
examining the special circumstances, determine — prefer-
■ C. 1, Extrav. Comm., III. 6. cburch; S. Rit. C, Jan. 15, 1667
Bin Rome the bodies of prison- (n. 1346)-
ers were brought on foot to the
Gi , Original from
°°8lt • UNIVERSITY OF WISCONSIN
■
pi
Q
120 ADMINISTRATIVE LAW
ably at a synod and by means of diocesan statutes — when
and under what conditions the transportation of the
corpse to the church or place of burial is inconvenient.
If the parishes belong to different dioceses, the decision
lies with the bishop in whose diocese the person died.
Supposing a man was accidentally killed in a parish of
the Des Moines diocese, but belonged to a parish of the
diocese of St. Joseph, if there were no one to defray the
transportation expenses and to claim the body, we sup-
pose the Ordinary of Des Moines would decide in favor
of burial in that city — recto tramite.
§ 3 grants to the family of the deceased, his heirs, or
other interested, persons, the right of having the body
conveyed to the church where the funeral services are to
be held, or to the burial place. And this even if the trans-
fer were quite inconvenient, provided the relatives or
heirs are willing to pay the expenses.
BURIAL OF CARDINALS AND BISHOPS
Can. 1219
§ 1. Si S. R. E. Cardinalis in Urbe decesserit, cor-
pus transferendum est, funeris causa, in ecclesiam
quam Romanus Pontifex designaverit ; si extra Urbem,
in ecclesiam insigniorem civitatis seu loci ubi mors
accidit, nisi Cardinalis aliam elegerit.
§ 6. Defuncto Episcopo residentiali, etiam cardi-
nalitia dignitate aucto, aut Abbate vel Praelato nul-
lius, corpus, funeris causa, transferri debet in eccle-
siam cathedralem, abbatialem vel praelatitiam, si id
commode fieri possit; sec us, in ecclesiam insigniorem
civitatis seu loci, nisi in utroque defunctus aliam eccle-
siam elegerit.
.'Ie
C* ^ ^ %\s* Original fro m
UNIVERSITY OF WISCONSIN
"-
CANON 1220 121
§ i. If a cardinal dies in the city (of Rome), his
body is to be brought for the funeral service to the church
which the Roman Pontiff may designate for that purpose;
if he dies outside the city, the corpse must be carried to
the more prominent church of the city or town where the
cardinal died, unless he chose another.
§ 2. On the death of a residential bishop, even if he
was a cardinal, or an abbot or prelate nallius, the body
must be brought for the funeral service to the cathedral
or abbatial or prelatial church, if this can be done con-
veniently; if not, to the more prominent church of the
city or town, unless the prelate chose another.
funeral of beneficiaries
Can. 1220
Beneficiarii residentiales ad ecclesiam sui beneficii
transference sunt, nisi aliam sibi elegerint ecclesiam
funeris.
The bodies of resident beneficiaries must be brought to
the church of their benefice, unless they have selected an-
other church for their funeral.
The burial of cathedral and collegiate canons and other
beneficiaries, provided they are really resident, is to take
place from the church where they held a benefice. If
they had their domicile or quasi-domicile in another par-
ish 10 of the city or town, the stole fee must be given to the
pastor of that parish.11
Concerning the canons of cathedral churches in Eng-
10 Rtsidcnt doci not imply that n S. C. C, May ia, 1685 (Rich-
the canons and beneficiaries must re- ter, Trid., p. 462. n. io>: S. Rit. C,
iide at the cathedral or collegiate May 16, Dec. 18, 1756, ad 11 (n.
church, because this may cot be a 2441).
parish church.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
122 ADMINISTRATIVE LAW
land, the provincial council of Westminster (1852) de-
cided nothing about their funeral ; but since these are not
really canonical prebends, as a decree of the S. C. P. F.,
April 2i, 1852, clearly states," it follows that the present
canon cannot be applied to them. It has in view only
beneficiaries in the strict sense.
FUNERALS OF RELIGIOUS
i
Can. 1221
§ 1. Professi rcligiosi ac novitii, defuncti cum sint,
transferendi sunt, funeris causa, ad ecclesiam vel ora-
torium suae domus vcl saltern suae religionis, nisi no-
vitii aliam ecclesiam ad suum funus elegerint; ius
autem levandi cadaver et illud deducendi ad ecclesiam
funerantem pertinet semper ad Superiorem religiosum,
§ 2. Si longe moriantur a dorao. ita ut in ecclesiam
suae domus vel saltern suae religionis nequeant com-
mode asportari, funerandi sunt in ecclesia paroeciae
ubi decedunt, nisi novitius aliam ecclesiam ad funus
elegerit, et salvo Superioribus hire de quo in can. 1218,
§ 3.
§ 3. Quae de novitiis dicta §§ 1, 2, valent quoque
de famulis actu servientibus et intra domus septa sta-
biliter commorantibus , qui tamen, si extra religiosarn
domum deeesserim, funerandi sunt ad normam can.
1216-1218.
§ 1. The bodies of professed religious and novices
must be brought for the funeral service to the church or
oratory of their house, or at least to a church of their in-
stitute, unless the deceased was a novice and selected an-
other church.
12 ColL Lac, III. 956.
§le
£ * ^ ^ ,l„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1221 123
The right to remove the body and accompany it to the
church belongs to the religious superior. Hence the pas-
tor in whose parish a religious or novice died, even
though the house or hospital be under the pastor's juris-
diction, is not entitled to interfere or claim compensa-
tion.13
Note that the Code simply says " religious," without
drawing a distinction between exempt and non-exempt.
Not intended are those that are not religious in the sense
of the Code.14
§ 2. If a professed religious or novice dies in a place
so far distant from his religious house that the body can-
not conveniently be conveyed to a church of his own
house, or order, or congregation, he must be buried where
he died, unless a novice has chosen another church for the
funeral service. Here again distance is mentioned with-
out further determination. According to canonists,18
" distance M is one day's journey. But this term must be
taken in a relative sense ; expenses, means of transporta-
tion, and the condition of the corpse must be duly con-
sidered. If the corpse cannot be conveniently trans-
ported, it must be buried where death occurred and
religious have no right to choose the burial place.18 Nov-
ices, however, may choose.
Our canon refers to can. 1218, § 3, which permits the
family to remove the body wherever they please, provided
they defray the expenses. This right is here vindicated
to the superior, either local or higher. If he should
choose to have the body transferred from the place of
U Cfr. c. 16, x, V, 31; c. 5. 6". 13 Ferraris, Prompta Bibliothtca,
III, 12; S. C. EE. et RR„ July /. v. " Sefmltura," n. 41.
at, 1848 (Bizzarri, /. c, p. 563 O. 16 Formerly the choice wu not
14 Can. 67.1: unless of course they denied; c. ■-,, 6*, III, 12.
enjoy a special privilege to that
effect
>gle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
124 ADMINISTRATIVE LAW
death to a church of his institute, he may do so without
consulting or excusing himself to the pastor in whose
parish the religious died."
The pastor, even though he may have administered the
last Sacraments to the deceased religious, is not entitled
to any stole fees.18
Religious superiors are not exempt from this law, i". e.,
they are not allowed to choose their own burial place,1*
but are to be treated just like ordinary religious.
§ 3. What has been established concerning novices
also applies to servants actually employed by religious and
living permanently within the premises of a religious
house (farm hands, janitors, mechanics, teachers, etc.).
To enjoy the privilege here granted they must be actually
serving the religious and live within the precincts of the
convent or religious house.20 If they boarded outside,
the second condition would be lacking; if they worked
without being hired or employed, the former condition
would not be verified.21 If they die outside the religious
house the privilege ceases.
*.•-.
guests and students of religious
Can. 1222
a
Quod attinet ad defunctos qui in domo etiam regu-
lari vel collegio degebant rationc hospitii, educationis
vel infirmitatis, et ad defunctos in hospitali, standum
est canonibus 12x6-1218, nisi constet de iure particu-
IT S. C. C, June iot 1620, ad 10; 10 Cfr. cm. ia*4. a*.
Ferraris, /. r., n. 35 f. 20 Cfr. Trid., Sew. 24, c. 11;
1* S. C. EE. et HR., May aa, Scsa. as, c. II, de reg.: " sub que
1615: Ferrari*, ibid.: however, com- ecrum obedientia ttHPrt"
pensation would not be against -1 S. C. EE. et RR., July at, 1848
either the letter or the spirit of the (Bizxarri. /. c, p. 563 ff.) Cfr. Vol.
law. Ill, p. 14a f. of this Commentary.
>Ie
I , Original from
UNIVERSITY OF WISCONSIN
CANON 1222 125
lari aut privilegio; quod vcro ad illos attinet qui in
Seminario moriuntur, servetur pracscriptum can. 1368.
Guests, students or sick persons who have lived in a
religious house, even though this belong to regulars, or
in a college, and die there, as well as those who die in a
hospital, are to be buried like other secular persons, i. e.,
according to can. 1216-1218, unless a particular law or
privilege exempts them from the common law.
Seminarians are to be buried by the authorities of the
seminary, unless the Holy See has ruled otherwise with
regard to certain seminaries.
The favor granted these persons by virtue ot can. 514
may not be extended to the funeral service, as the S.
Congregations have constantly decided." Of course,
these persons are allowed to choose burial in the church
of religious, provided this church is capable of being se-
lected (can. 1125) and the person free to choose. But
in that case the stole fees belong to the parish priest who
would otherwise be entitled to perform the burial."
The text admits exemption by reason of a particular
law or privilege. A particular law would be one issued
according to can. 464, § 2, viz.: when the Ordinary ex-
empts a religious family from the parish organization.
The Barnabites were granted a privilege permitting their
guests and all those who died suddenly in their houses or
colleges to be buried by these religious.2*
Our text requires that the privilege must be certain or
evident (msi constet dc privilegio). All religious, there-
fore, who can claim neither a particular law nor a privi-
NSi C. EE. ct RR., Dec. 1674; SOS. C C, /. c
Dec. 14, T753 (Binarri, /. c, pp. 1* Greg. XV, i6ai, af>ud Hirmtri,
171 *: 379). S. C. C, April ai, J. c, p. 564.
1742 (Richter, Trid., p. 462, n.
*7* ?• 379;. a. fe \..t /\pni mx,
1742 (Richter, Trid., p. 462, n.
'J).
gle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
126 ADMINISTRATIVE LAW
lege, must permit the pastor in whose parish their house
is situated, to perform the funeral service.25
■
s
SELECTION OF SEPULTURE
Can. T223
§ i. Omnibus licet, nisi expresse iure prohibeantur,
eligere ecclesiam sui funeris aut coemeterium sepul-
turae.
§ 2. Uxor et filii puberes in hac clectionc prorsus
immunes sunt a maritali vel patria potestate.
-
Can. 1224
Ecclesiam funeris aut sepulturae coemeterium eli-
gere prohibentur :
i.° Impuberes; verum pro filio aut filia impubere,
etiam post eorum mortem, hanc electionem facere
possunt parentes vel tutor ;
2.0 Religiosi professi cuiuslibet gradus aut dignita-
tis, non tamen si sint Episcopi.
Canon 1223 ordains (§1) that all may freely choose
their funeral church or burial place, unless they are ex-
pressly forbidden to do so by law. Those forbidden are
boys who have not yet completed the fourteenth and girls
who have not yet completed the twelfth year.28 In their
stead, even after their death, the parents or guardians
may make the choice. Whether the mother alone may
do so, was not quite certain hitherto, because a Constitu-
tion of Innocent X seems to debar her if there is no local
custom in her favor.27 Our text leaves no doubt that
MS. C C, April ai, 1741 27 "Ex mjuncto," Nov. i6, 164S
(Richtcr, /. c, nn. 4, 13). (Richtcr, /. c., p. 46*1 n. 6).
24 See can. 88, | a.
jle
Y ,1,., Original from
UNIVERSITY OF WISCONSIN
c
CANON 1225 127
mothers, too, may choose burial church and burial place
for their children.
If the parents have a family lot, the children should be
buried there, otherwise, if no contrary choice is made,
they are to be buried from the parish church and in the
parish cemetery."
According to § 2, can. 1223, the wife as well as boys
and girls who have completed the age of fourteen or
twelve, respectively, are free to make their choice, and
are not hampered in this matter by marital or parental
power. *• If this be true, we cannot see, as stated above,
why the mother should be debarred from choosing, pro-
vided, of course, the father eithers consents, or is dead,
or does not care. Guardians, too, are admitted.
Professed religious of whatever rank or dignity, except
D
bishops, are deprived of the right of choosing their fu-
neral church or burial place. The reason is that reli-
gious have no power either to "veUc" or "nolle."*0
Cardinals who are religious enjoy the right here denied
by virtue of can. 12 19, bishops, by virtue of can. 1224.
As the text speaks of bishops in general, all, resident and
titular, arc included.
Can. 1225
Ut electio ecclesiae funeris valeat, cadat necesse est
vel in ecclesiam paroccialem, vcl in ecclcsiam regu-
larium, non tamen monialium (nisi agatur de mulieri-
bus quae famulatus, educationis, infirmitatis aut hos-
pitii causa intra clausuram ciusdem monasterii non
precario commorabantur), vel in ecclesiam iuris pa-
ses. C. Ci Not. 16, 1645; Feb. 1731 (Bizznrri, /. c, p. 343); Many,
r, 1646 (Richtcr, J. c, n. 1 f.) /. c, p. eCj t.
30 S. C EE. el RR., June 8. SO C. 5. fi\ ITT. i».
oogle
j Original fro m
UNIVERSITY OF WISCONSIN
128 ADMINISTRATIVE LAW
tronatus, si agatur de patrono, vel in aliam ecclesiam
funerandi iure praeditam.
•Can. 1225 determines which churches may be chosen
for funeral services. They are parish churches and
churches of regulars, churches of advowson in favor of
the advowee, and any other church endowed with the ius
funerandi.
The first class, i. e.t parish churches, were the exclusive
possessors of this right before the thirteenth century, ex-
cept where the Popes had granted a special privilege.31
The Friars Preachers and the Friars Minor obtained
such a privilege, and it was extended to all regulars by
way of communication.18 Now it has ceased to be a mere
privilege but is common law. However, this law favors
only churches of regulars to the exclusion of other reli-
gious, even though exempt.
The third class consists of churches which are subject
to the ius paironatus, but only in favor of the patron or
advowee.
There is a fourth class consisting of such churches
as are expressly endowed with the ius funerandi.
The Code distinguishes between a church for funeral
services and a cemetery for sepulture. The two are not
identical. Jus funerandi, sometimes called jus sepeliendi,
or tumulandi, here means strictly the right to funeral
services, without the burial place. This is apparent from
the fact that the church is called ecclesia funeris, i. e.,
the church where the funeral service takes place.
Which churches have the ius funerandi besides those
mentioned in the text? Note two facts: (1) The
burial right is a strictly parochial right, and (2) all eccle-
ai Cfr. c. 3, X. III. 28: c. 3, 6°, III, 12.
«Cfr. c. 2, Clem. Ill, 7-
'■-.
►ogle
i*" ^ -» -. -J,-. Original from
UNIVERSITY OF WISCONSIN
~
CANON 1225 129
siastical functions may be held in all public oratories and
also in semi-public oratories, unless excepted by the Ordi-
nary.33 The funeral service is an ecclesiastical function.
Hence, unless the Ordinary forbids this function to take
place in semi-public oratories, funeral services may be
held there as well as in public oratories. This does not
interfere with strictly parochial rights because, as will be
seen under can. 1230, § 4, these rights are safeguarded
by law.
Churches of nuns (monialiuw) may not be used to hold
funeral services for outsiders. This was the traditional
practice of the Roman Court.94 However, female"
servants, women who lived habitually within the enclos-
ure of the convent for the sake of study, or because of
sickness, or as guests, may have their funeral services
performed in the nuns' church. Moniales must here be
taken in the strict sense, excluding female religious with
simple vows only. This distinction is clearly based on
the nature of enclosure. Hence the many decisions
against the permissibility of funeral services and burial in
such churches. If anyone is buried in such a church, the
stole fees belong to the parish church. M
Here may be added a decision concerning confraterni-
ties in churches of regulars. The members of these pious
societies must be buried from the parish church, unless
they have lawfully chosen the church of the regulars for
burial.37 Neither are tertiaries or oblates to be buried
c
from the church of the respective religious order, but
ei
SSCfr. can. 462, 50; can. 1191, Jan. 31, 1723, et pluries (Richter,
I a; can. 1193. Trid., p. 4<>a. n. 14).
UFernria, Prompts Bibliolheea, ae S. C. C, Nov. a8, I7MJ July
1. v. " Sepultura," n. 1.17: Many, 28, 1731 (Richter. I. r.. nn. 18 f.).
*. C-. P. 301 f. 57 Innocent X, "Ex injuncto,"
88 Male servants arc to be buried Feb. 22, 1645 (Richter, i. c, n.
from the parish church; S. C. C, 16); S. C. EE. ct RR., March 13,
1744, ad 8 (Bitiarri, /. c, p. 364).
-1
G I Originalfrom
OOglL UNIVER5ITY-0FWISC0NSIN
130 ADMINISTRATIVE LAW
their funeral services must be held in the parish churchr
unless they have chosen another, i. e., the church of the
regulars.88
Can. 1226
§ 1. Ecclcsiam funeris aut coemeterium sepulturae
quis eligere potest per se vel per alium cui legitimum
mandatum dederit; factamque electionern aut mandati
concessioner™ quolibet legitimo modo probare licet.
§ a. Si electio fiat per alium, hie suum mandatum
explere potest etiam post mortem mandantis.
Can. 1226 determines the manner in which the choice
of a funeral church or cemetery may be made, and how it
is to be proved. One may do this personally or through
another commissioned for that purpose. This choice is
similar to a last will.38 Hence § 2 states that the manda-
tarius may carry out the mandate either before or after
the death of the mandans or person who has made the
commission. Of course the mandataries must abide by
the wording of the disposition.
The second clause of § 1 says that the choice made, and
the fact of commission, may be proved in legal form.
Thus the form which is required for a last will, in the
presence of two witnesses and a notary public, would cer-
tainly be sufficient.40 Even two witnesses without a no-
tary public, provided they testify under oath before the
parish priest, are admissible.*1 In case the person should
be speechless, signs and nods which indicate his desire
shall not be rejected.48 Even the pastor's testimony, if it
is not in his own favor, is admissible. The Ordinary or
ass. C. EE. et RR., Dec. tx, «S. C. C, Dec 19, 1739 (iftirf.,
1615 (Bixzarri, /. c, p. J45)- n. 9).
a» C. 13. x. III. *6. 42 S. C. C, Feb. 13. 1666, ?A II
«S. C. C, Feb. 13, 1666; April (/. c.)
*4. 1733; Julf 4t 17" (Richter, p.
46r, n. 8).
►ogle
( "* -» -. -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 1227 131
the pastor may, if they wish, demand a document or proof
of the choice made before burial takes place.** Synodal
acts may more closely determine the requisites of proof,
but if they contravene this canon, they have no force.
Thus the S. Congregation sustained a choice made by a
woman before her confessor, her father, and another wit-
ness, though the synodal law required the presence of the
pastor, and the father of the woman was dead at the time
of the trial."
Can. 1227
Religiosi et clerici saeculares districtc vetantur uc
quos ad vovendum, iurandum vel fide interposita seu
aliter promittendum inducant ut apud ipsorum eccle-
sias funus aut apud ipsorurn coemeteriura sepulturam
eligant, vel factam electionem non imrnutent; quod si
contra factum fuerit, electxo aut immutatio sit nulla.
Can. 1227 strictly forbids all clergymen, whether secu-
lar or religious, to induce any person to choose a particu-
lar church for funeral service or cemetery for burial, or
a.
to change his choice. If such an inducement was made,
the choice is null and void. Note, however, that this in-
fluence or persuasion must be brought to bear on the per-
son by vow or oath, by pledging his word of honor, or by
simple promise. Our text is taken substantially from
the Decretals and contains only one penalty, to wit, the
nullity of the promise.43 It may also be noticed that only
clergymen are mentioned. This is done in order to pro-
cure the necessary liberty to laymen and to prevent jeal-
ousy and dissension among the clergy.
43 S. C. EE. et RR., Sept. 19. «C. 1, 6", III, 1a; C. 3. Clem.
1732. «»l a fBUzarri, p. 344 f.). V, 8: also interdict and excoin-
44 S. C. EE. et RR., Feb. 6, munication.
1852 (ibid., p, 602 (.).
G 1 Originalfiom
OOglL UNIVERSITY 0FWI5C0NSIN
'■-.
132 ADMINISTRATIVE LAW
Can. 1228
§ 1. Si electa fuerit sepultura in coemeterio di verso
a coemeterio propriae defuncti paroeciae, cadaver in
illo sepeliatur, dummodo nihil obstet ex parte eorum a
quibus coemeterium pendet.
§ 2. Electa sepultura in coemeterio religiosorum,
ut cadaver inibi sepcliri qucat, requiritur et sufficit
consensus Superioris religiosi, ad normam constitutio-
num cuiusque religionis.
Can. 1228 repeats in a somewhat different form the
enactment of Boniface VIII, mentioned above, concerning
the incineration or boiling of bodies.*9 The text merely
says that the body must be buried in the cemetery chosen
by the person, even though it be different from the ceme-
tery of the parish to which the deceased belonged. How-
ever, the authorities of the cemetery chosen by the de-
ceased must give their, at least negative, consent. If the
cemetery thus specially selected belongs to religious, the
consent of the respective superior is required and suffices.
The superior is the one whom the constitution of the
religious point out as competent for giving the consent.
If the constitutions contain nothing to the contrary, or no
enactment at all on this subject, the local superior is cer-
tainly competent.
ancestral tombs
Can. 1229
§ 1. Si quis, sepulcrum maiorum in aliquo coeme-
terio possidens, non electa alibi sepultura, decesserit,
in eodem sepeliendus est, si illuc commode asportari
possit, salvo praescripto can. 1218, § 3.
46 C. i, Extrav. Comm., Ill, 6.
* I Inr»ClI*> Original from
.OO^IL UNIVERSITY OF WISCONSIN
CANON 1230 133
§ 2. Pro uxore attenditur sepulcmm viri, ct, si
plures habuerit, sepulcrum ultimi.
§ 3. Plura si sint maiorum aut viri sepulcra, dc-
functi familia aut heredes sepulturac deligant.
§ 1. If a person who has an ancestral tomb or grave
in some cemetery dies without having chosen a burial
place somewhere else, the body, if it can be conveniently
transferred, must be buried there. The same holds good
if his family, heirs or friends insist upon burial in the
ancestral grave, and defray the expenses.
§ 2. A wife is to be buried in the ancestral tomb of
her husband ; and, if she had several husbands, in the an-
cestral tomb of her last husband, — always provided, of
course, that she had not chosen another burial place.
§ 3. If there are several ancestral tombs or family
tombs, the family or heirs of the deceased may choose his
burial place. In Europe there used to be different ances-
tral graves or tombs: strictly family plots, where only
members of the family were buried ; hereditary tombs, in
which only heirs were buried, and mixed tombs for both
members of the family and heirs.41 Our text allows the
family to choose between these different kinds of tombs
where they exist. The right to be buried in the ancestral
tomb also belongs to infants and children*8 Hence can.
1209 cannot be urged in this case.
duties and rights of pastors in regard to burials
Can. 1230
§ 1. Proprius defuncti parochus non solum ius sed
ctiam officium habet, excepto gravi necessitatis casu,
4T Many, I. C.
48 S. C. C. Oct 21, 1613 (Richter, p. 461. n. 1).
k.
►ogle
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
i34 ADMINISTRATIVE LAW
levandi per sc vcl per alium cadaver, illud comitandi
ad suam ecclesiam paroecialem ibique exsequias per-
solvendi, firmo praescripto can. 1216, § 2.
§ 2. Quod si mors accident in loco alienae paroe-
ciae, et cadaver ad ecclesiam propriae paroeciae com-
mode asportari possit, parochi proprii est, praemonito
parocho loci, illud levare, comitari ad suam ecclesiam
ibique exsequias peragere.
§ 3. Si ecclesia funeris sit ecclcsia regularis aliave
exempta a iurisdictione parochi, parochus, sub cruce
ecclesiae funerantis, cadaver levat ac deducit ad eccle-
siam ; sed exsequias rector ecclesiae celebrat.
§ 4. Si vero ecclesia funeris non sit exempta a iuris-
dictione parochi, celebratio exsequiarum, salvo pecu-
liari privilegio, pertinet non ad rectorem ecclesiae fu-
nerantis, sed ad parochum in cuius territorio ecclesia
sita est, dummodo defunctus parocho subiectus fuerit.
§ 5. Religiosas et novitias, in religiosa domo de-
functas, ad clausurae limen deferant aliae religiosae;
indeque, si de religiosis agatur iurisdictioni parochi
non obnoxiis, ad propriam religiosae domus ecclesiam
vel oratorium deducit et exsequias peragit cappel-
lanus; si de aliis religiosis, valet praescriptum § 1;
quod vero ad religiosas attinet extra domum defunc-
tas, serventur generalia canonum praescripta.
§ 6. Defuncto S. R. E. Cardinali aut Episcopo ex-
tra Urbem in civitate episcopali, servetur praescriptum
can. 397. n- 3-
§ 7. Si cadaver mittatur ad locum ubi nee defunc-
tus propriam paroeciarn habebat, nee ecclesia funeris
legitime fuerat electa, ius levandi cadaver, peragendi
exsequias, si peragendae sint, et cadaver ad sepul-
turam deducendi, pertinet ad ecclesiam cathedralem
eiusdem loci ; quae si desit, ad ecclesiam paroeciae in
§le
( * ^ ^ ils* Original fro m
UNIVERSITY OF WISCONSIN
CANON 1230 135
qua coemeterium situm est, nisi aliud ferant loci con-
suetude* aut dioecesana statuta.
§ 1. The pastor of a deceased Catholic is entitled and
obliged, unless excused by grave necessity, to go himself
or send a delegate (assistant priest, curate) to the house
to receive the body {levarc corpus),40 accompany it to
the parish church, and there to hold the exequies, with
due regard to can. 1216, § 2. Needless to say, this is not
customary in our country, where distance often renders
it impossible to comply with this ruling. Therefore the
law most reasonably adds: ercepto qravi necessitatis casu.
§ 2. If a person has died in a strange parish, and the
body can be conveniently brought to his own parish, the
pastor has the right and duty to perform the ceremonies
described in § 1, after previously informing the pastor of
the parish where the person died. Thus, for instance, if
a person dies in a hospital or asylum located in a strange
parish, his or her pastor is entitled and obliged to perform
the sacred rites, unless, of course, the hospital or asylum
enjoys exemption from the jurisdiction of the pastor.00
§ 3 draws a distinction between exempt and non-
exempt churches. In exempt churches the parochus
proprius may take up the body and accompany it to the
exempt church ; but the cross behind which the funeral
procession marches must be that of the exempt church,
and the rector of the latter is entitled to hold the funeral
service. It required a great many decisions to make this
rule clear. If a church in charge of regulars was chosen
for the funeral service, the regulars had to invite the
pastor or chapter, and even accompany them to the
a
c
«0 Levarc corpus properly means performed by sprinkling the coffin
to raise or take up the body with Holy Water,
(compare: levart * sacro fontc), BO S. C. C, June M, 1907 Una/.
an<l is Wed f«r the first funeral act Eccl., XV. 284 ff.).
§le
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
136 ADMINISTRATIVE LAW
church. But if the pastor or chapter made the fathers
wait more than an hour, they could go to the house of
the deceased and conduct the funeral. The pastor or
chapter were allowed to sprinkle the body, but not to in-
tone any antiphon or psalm, etc. In fact they had to re-
main outside the church whilst the exequies were per-
formed." This last-mentioned ruling might reasonably
be revoked.
§ 4. In non-exempt churches the celebration of the
funeral service belongs to the pastor in whose parish the
church selected for the funeral is located, provided the
deceased was a subject of his. Therefore the rector or
chaplain of the church in which the exequies are held
must make way for the parochus propria* of the de-
ceased. If the latter refuses to perform the services
the rector or chaplain of the ecclesia funcrans may hold
them." Thus, if a member of a confraternity which has
a public oratory within the limits of a parish dies, the
pastor of the parish is entitled to hold the funeral services
in such public oratory, provided the deceased was his pa-
rishioner.88 If the deceased was not a parishioner of the
parish within the boundaries of which the ecclesia fune-
rans is situated, the chaplain of the confraternity may
perform the funeral rites.54 If the public oratory is situ-
ated within ihe limits of a collegiate or cathedral parish,
the pastor, and not the first dignitary of the collegiate or
cathedral church, is entitled to perform the services, un-
a
less the chaplain enjoys this right.85 This may be by
~
MS. C. EE. et RR., Aug. 22, 88 S. Rit C, Jan. 12, 1704, id
1670; Sept. 23, 1735; April, 1717 ao (n. ai*3>.
(Biziarri. /. c, pp. 263, 346 *., 64 S. Hit. C, July 0. 1718. ad
304). 4; May »3. »7i9. ad 7 (on. 22sr,
02 S. Rit. C. Dec. 22, 1629 (n. 2263).
523). ss S. Rit. C, Sept. 13, 1670, ad 1
(n. 1409) ■
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gle
CANON 1230 137
reason of exemption, or by a special privilege which is
sometimes given, especially to arch-confraternities.
§ 5 treats of the burial of female religious and their
novices. If they die in their religious house, their bodies
must be brought to the threshold of the enclosure, whence
the chaplain conducts the funeral procession to the church
or oratory, where he holds the exequies. But the chap-
lain is entitled to this privilege only if the religious are
exempt from the jurisdiction of the pastor. If they are
subject to the pastor in whose parish the religious house
is located, the latter is obliged and entitled to conduct the
funeral.
If sisters or novices die outside their religious house,
the common law takes effect. Canons appear to have
taken a particular interest in the funeral of moniales,
since the decisions, the substance of which is embodied in
our text, chiefly regard them. The confessor or chaplain
of nuns (with solemn vows) has the exclusive right of
accompanying the corpse from the threshold of the en-
closure into the outer church, to hold the funeral service
there, and then to accompany the body to the grave-yard.
If it is a custom of long standing that canons or other
priests are invited, they may continue to observe the cus-
tom, but without prejudice to the confessor or chaplain,
who, on his part, should beware not to enter the papal
enclosure under pretext of a funeral service."
This, then, is the rule for all nuns or moniales, no mat-
ter whether they are subject immediately to the Holy See
or to the bishops or prelates regular." The local Ordi-
nary, according to can. 464, § 2, may exempt certain reli-
gious communities from the pastor's jurisdiction and place
BBS. C. EE. et RR„ May 30, 20, 1641; May 10, 1805 (nn. 75*.
1856; Sept. 17, 1858 (Bizzarri, /. c, 2555).
pp. 648, 657); S. Kit. C, April 6*S. C. C, Feb. 34, 187a (.A. S.
s., vii, 161 a.).
oogle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
138 ADMINISTRATIVE LAW
them directly under a chaplain appointed by him.ss How-
ever, it must be plainly understood and maintained that
the mere appointment of a chaplain does not derogate
from the rights of the pastor in the matter of burial. And
this is true of every non-exempt religious institute of
women, no matter whether approved by the Holy See or
by the Ordinary only.80 The consequence is that unless
the Ordinary formally exempts a religious community of
women, or of men, which belongs to the class ot non-
clerical congregations, the pastor's rights in the matter of
burial must be sustained.
The last clause of § 5, can. 1230, states that concern-
ing female religious who die outside their religious house
the common law must be observed. What is the common
law on this point? No doubt that part of the present
title which affects secular persons, otherwise the text
would simply have referred to can. 1221, treating of male
religious. Therefore the pastor's rights are here still
more evidently safeguarded. But the question may not
be useless, whether such female religious are allowed to
choose their burial places. This, we believe, must be de-
nied, for the reason that they do not have their own will.
But the parish church or parish cemetery as well as the
ancestral tomb may safely be vindicated for them. For
the rest, a religious community may claim the right
granted by can. 1218, § 3.
Here it mav be permitted to add a note which might
have been placed under can. 1221. but also fits here. If a
religious who has been pastor or teacher for years, were
buried in the place of his activity, we believe it would not
be reprimanded by the lawgiver, because " convenient
conveyance " might suffer on account of discontent on the
BSCfr. can. 514. 5 & 4-
B9L*o XIII, "Conditae," Dec. 8, 1900, II, n. 8.
n'C
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 123 1 139
part of the people. Piety also has its claims, provided, of
course, that the distance between the religious house and
the deceased person's last residence amounts to a good
many miles, and the superior's permission is obtained.
§ 6. When a cardinal or bishop dies outside the city
of Rome, in his episcopal city, the cathedral canons shall
provide an appropriate funeral service and burial.80
Note that any cardinal of the Holy Roman Church,
whether he was bishop of the city or diocese in which he
lived, or not, is entitled to this honor.
§ 7. If a corpse is sent to a place where the deceased
person neither had parish rights nor had chosen a burial
place, the conduct of the funeral belongs to the cathedral
church of that place; — supposing, of course, the body
was shipped to the episcopal city; for if the corpse is sent
to another city, the clergy of the parish in which the ceme-
tery is located must attend to the funeral, unless custom
or diocesan statutes decide otherwise.
~
BURIAL
3
L
Can. 1231
§ x. Expletis in ecclesia exsequiis, cadaver tumu-
landum est ad normam librorum liturgicorum in coeme-
terio ecclesiae funeris, salvis praescriptis can. 1228,
1229.
§ 2. Qui exsequias in ecclesia peregit, non solum
ius, sed etiam officium habet, excepto gravi necessitatis
casu, comitandi per se vel per alium sacerdotem cada-
ver ad locum sepulturae.
After the exequies held in church, the body must be
buried in the cemetery of the church in which the service
00 Can. 307. n. j.
oogle
C* ^ v J„ Original from
UNIVERSITY OF WISCONSIN
140 ADMINISTRATIVE LAW
St
was held, unless the burial in another cemetery or the
ancestral tomb was chosen by the deceased. The officiat-
• ...
ing priest or his substitute is entitled and obliged to ac-
company the casket to the grave-yard. The bishop cannot
issue synodal acts or diocesan statutes forbidding the of-
ficiating clergy to accompany the funeral procession.
Nor may the cemetery chaplain take care of all the bodies
that are brought to the cemetery. The clergy should not
discriminate between rich and poor, but accompany all
alike, no matter what the distance,61 provided, of course,
the cemetery belongs to the parish. Exception is made in
cases of grave necessity. Such a necessity would be
physical indisposition of the clergyman or perhaps a
long-standing tradition against accompanying funeral
processions, based on the fact that they gave rise to dis-
turbances. If the clergy does go to the grave-yard, sur-
plice and stole, or at least the stole, should be made use
of."
We may add that religious who have lost their con-
vent by suppression, but continue to officiate in their for-
mer church, have the right of performing the funeral
service and conducting corpses to the grave.61
funeral processions
Can. 1232
■
a
§ i. Sacerdos qui cadaver comitetur ad ecclesiam
funeris vcl ad locum sepulturae, libere transire poterit,
cum stola quoque et cruce elevata, per territorium
ei S. C. C. Jan. 36, 1507 (.Anal fers to the stole; the latter cut-
Eccl.. XV, 12 ff.). torn is therefore admissible.
as S. C. P. F., Sept. 12. 1884. ad ea S. C. EE. et RR., May 7. Sept.
II (fl. 3619) mention* stole and 17, 1880 (.-*. 5". S., XUI, 40? ff.) ;
■urplice, but S. Rit. C, April aj. 5. Rit. C. Sept. 12, 1884 (n.
180s. id II <n. 3854). only re- 3619).
oogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
p
CANON 1233 141
alius paroeciac vcl dioecesis, etiam sine parochi vel
Ordinarii licentia.
§ 2. Si cadaver tumulandum sit in coemeterio ad
quod commode asportari nequeat, parochus vel rector
ecclesiae funeris nequit sibi vindicarc ius illud comi-
tandi extra fines civitatis vel loci.
§ 1. The priest who conducts a body to the funeral
church or the grave-yard is entitled to pass with stole and
raised cross through a strange parish or diocese, without
the permission of either pastor or Ordinary. The term
" cruce elevata " is chosen in order to do away with the
presumption that when passing through strange territory,
the cross had to be lowered, to show subordination or at
least tacit acknowledgment of the jurisdiction of the pas-
tor through whose district the procession wended its
way. This right belongs also to regulars when they con-
duct a funeral through strange territory." The pastor
has the same right, even when the cathedral chapter is
present. If the funeral procession has to pass through
strange territory, the shortest route should be taken,88 in
order not to provoke others or " make a show."
§ 2. The right of accompanying the body outside the
city or town limits cannot be claimed in case the corpse is
to be buried in a cemetery to which it cannot conveniently
be transported, for in that case the whole funeral proces-
sion might easily turn in*o a farce.
MOURNERS AND EMBLEMS
CI
Can. 1233
§ 1. Nequit parochus, sine iusta et gravi causa ab
e* S. C EE. et RR., Nov. 24, 05 S. RiL C, April 23, 1895 (n.
1713 (Biuarri, /. *., p. 301): Sept. 3854).
17. 1880 U. S. S., XIII, 410).
gle
Original from
UNIVERSITY OF WISCONSIN
■
142 ADMINISTRATIVE LAW
Ordinario probata, cxcludcrc clericos saeculares, reli-
giosos ac pia sodalitia quae familia vel heredes advo-
care velint ad deducendum cadaver ad ecclesiam fu-
neris et ad scpulturam, et assistendum funeri ; clerici
tamen ipsi ecclesiae addicti a familia vel heredibus
prae aliis omnibus invitari debcnt.
§ 2. Nunquam admittantur societates vel insignia
religioni catholicae manifeste hostilia.
§ 3. Associantes cadaver tenentur morem gerere
parocho circa ductum funeris, salvis uniuscuiusque
praecedentiae iuribus.
§ 4. Laici cadaver, generis aut dignitatis cuiusvis
ille fuerit, clerici ne deferant.
§ I. Except for a weighty and just reason approved
by the Ordinary, the pastor has no right to prevent secu-
lar or religious clerics, or pious societies whom the fam-
ily or the heirs wish to invite, from accompanying the
body to the church and grave-yard and assisting at the
funeral. But the clergy of the respective church should
be invited above all others by the family of the deceased
or his heirs.
"Confraternities and regulars, in particular the Friars
Minor, had often to recur to the Roman Court to defend
the right enunciated in our text. The pastor must consult
the Ordinary to judge whether reasons for non-compli-
ance are just and weighty. But the Ordinary has no
right to issue synodal decrees forbidding cither confra-
ternities or regulars to accompany the funeral procession,
if (at least implicitly) invited by the family of the de-
ceased.6* Even if the cathedral chapter should not have
been invited, the members of a confraternity may be
COS. C. EE. ct RR., Nov. 24. t6?9I April aa, 1633; Jan. 14,1640;
1713; May 13, 1744 (Bixzarri. /. c, Dec. 7. 1641 (dd. 516, 604, 6g6,
p. 307. 363). S. Kit. C, Aug. 18, 784)-
jle
/""* ^ v iL-. Original from
UNIVERSITY OF WISCONSIN
CANON 1233 143
a>
called and assist.87 The invitation to regulars or mem-
bers of a fraternity may be issued by the family or heirs
without the pastor's knowledge.88 No definite or pro-
portionate number of regulars, seculars and confraternity
members is prescribed.89 Nor is it required that the secu-
-
lar clergy should be invited before the regulars.70 When
the regulars are called by the family to accompany a fu-
neral which is to take place in the cathedral church, they
are allowed to enter it.Tl These are the most important
decisions rendered in this matter. A timely admonition is
that of the last clause of our section to show respect to
one's own clergv.
•a
§ 2. No societies or emblems manifestly inimical to
the Catholic religion are to be admitted. Concerning the
emblems of Masonic lodges — for these are here chiefly
intended — the Holy Office has decided as follows: Ec-
clesiastical sepulture may be given only to such members
of a condemned sect as have received the sacraments and
have not, after receiving them, demanded to be buried
with or under these insignia, or have formally retracted
their desire. If such emblems are placed on the coffin
against the will of the deceased, they must he removed
before the funeral starts (ante associationcm cadave-
ris).ia The same rule applies to banners or stand-
ards.
§ 3. Those who accompany the funeral must obey the
orders of the pastor concerning the arrangement of the
funeral cortege, with due regard, of course, to the rights
6T S. Rit. C, June 8, 1630 (n. 70S. Rit C, Nov. sj, 1643 (n.
533). 85-0.
as S. C. EE. ct RR., Dec. 10,17.19 TiS. C. EE. ct RR., April 13,
(Bitiarri, /. c, p. 34a). T723 (Rizxarri, /. e., p. 313).
0»S. C EE. et RR., Nov. 24, 72 S. O.. Dec. 2, 1840; July 5.
1713; May 13, 1744 (Bixiarri, I. c, 1878 (.Coll. P. F„ nn. 9«5f U9S>.
pp. 301, 363).
1
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
gle
144 ADMINISTRATIVE LAW
%
of precedence. The pastor may decide in which direction
or through which streets the funeral procession should
march. Ta Concerning regulars and members of confra-
ternities, it has often been decided that they should not
join the funeral procession at some corner, but should
meet at the church and join the rest of the clergy and
march together with them.1*
As to precedence, the general rule is that the pastor
" precedes," *. e., takes the last place in the procession.15
However, if the cathedral chapter or, where custom ad-
mits, the collegiate chapter assists in a body, it marches
behind the pastor. In that case the first dignitary of the
chapter should wear stole and cope, whilst the pastor
wears only the stole (and surplice).78 With regard to the
rest of the clergy, secular and religious, the general rules
of precedence, as laid down and explained under can.
1 06 and 491, must be observed.
§ 4. Clerics shall never act as pall-bearers for a de-
funct layman, no matter what his rank or dignity may
have been. The reason is because the clerical dignity
transcends every secular rank and degree.
EL
I-
FUNERAL FEES
■ -
Can. 1234
§ x. Locorum Ordinarii indicem funeralium taxa-
rum seu eleemosynarum, si non exsistat, pro suo terri-
torio, de consilio Capituli cathedralis, ac, si opportu-
num duxerint, vicariorum foraneorum dioecesis et
parochorum civitatis episcopalis, confidant, attends
legitimis consuetudinibus particularibus et omnibus
-
73 S. Rit. C, Dec. 19, 1671, ids T5 S. C. C, May 11, 1635: May
(n. 1440I. U. "644 (Coll. P. F., nn. fla, in).
T4S. Rit. C, Sept. 7, '*7o: April 7eS. Rit. C, April aa, 1895. ad
8, 1854 (nn. 1408, 3080). Ill (n. 385-.).
>Ic
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON. 1235 145
pcrsonarum ct locorum circumstantiis ; in coquc pro
divcrsis casibus iura singulorum moderate determi-
nent, ita ut quaelibet contentionum et scandali remo-
veatur occasio.
§ 2. Si in indict plures classes cnumerentur, libe-
rum est iis quorum interest classem eligere.
Can. 1235
§ i. Districts prohibetur ne quis, sepulturae vel
exsequiarum seu anniversarit mortuorum causa, quid-
quam exigat ultra id quod in dioecesano taxarum in-
dice statuitur.
§ 2. Pauperes gratis omnino ac decenter funeren-
tur et sepeliantur, cum exsequiis, secundum liturgicas
leges et dioecesana statuta, praescriptis.
§ 1 of can. 1234 provides that the local Ordinaries
shall, each one for his own territory, draw up a list of fu-
neral fees, if none such exists, with the advice [not con-
sent] of the Cathedral chapter, and, if deemed advisable,
with the cooperation of the rural deans and pastors of the
episcopal city. In drawing up this list they shall take into
account the lawful customs of the district as well as the
circumstances of persons and times. The stole fees
should be moderate and so determined that every occa-
sion for quarrel and scandal is removed.
§ 2. If the list contains several classes of funeral
services, arranged by degrees, those interested may choose
any of these.
But, says can 1235, § I, no clergyman may demand
more than is officially allowed for burial or funeral serv-
ices or anniversaries.
§ 2. The poor shall by all means be given a decent
funeral and burial, inclusive of the exequies, free of
p
oogle
v ,|r. Original fro ni
" UNIVERSITY OF WISCONSIN
146 ADMINISTRATIVE LAW
charge, according to the sacred liturgy and the diocesan
statutes. Alexander VII and Clement X enjoined espe-
cially on the missionaries of the East Indies, that they
should bury the poor gratis, and not go about among the
neighbors and relatives to beg alms for this purpose.17
PORTIO PAROECIALIS
c
Can. 1236
§ 1. Salvo iure particular!, quoties Bdelis non fu-
neratur in ecclesia paroeciali propria, proprio defuncti
parocho debetur portio paroecialis, excepto casu quo
cadaver in ecclesiam propriae paroeciae commode as-
portari nequeat.
§ 2. Si quis habeat plures paroecias proprias ad
quas cadaver commode deferri posset, et alibi fune-
retur, portio paroecialis dividenda est inter omncs
parochos proprios.
Can. 1237
§ 1. Detrahi debet portio paroecialis ex omnibus et
solis emolumentis, quae statuta sunt pro funere et
tumulatione in taxa dioecesana.
§ 2. Si quacunque de causa primum sollemne of-
ficium funebre non statim, sed intra mensem comple-
tum a die tumulationis fiat, licet hoc die non defuerint
c
minora publica officia, portio tamen paroecialis ex
huius etiam funeris emolumentis debetur.
§ 3. Quantitas portionis paroecialis determinetur
in taxa dioecesana ; et si ecclesia paroecialis et ecclesia
funerans ad diversas dioeceses pertineant, quantitas
T7 Alexander VII, " Sacrosancti," IX," In txcelso," Sept 13. 1660.
Jan. 18, 1658, 5 -. n. 19; Clement n. 19.
Go >gle
j , Original fro m
UNIVERSITY OF WISCONSIN
"-.
CANON 1237 147
portionia paroccialis attcnditur secundum taxam eccle-
siae funerantis.
yi
§ i. The quarto funeris, or pastor's portion, must be
given to the deceased's pastor if the funeral is not held in
the parish church. There is no exception to this rule un-
less a particular law provides otherwise or unless the body
cannot conveniently be brought to the deceased's own
parish church.
§ 2. If the deceased had several parish churches, to
which his body might be carried, yet is buried elsewhere,
the pastor's portion must be divided among the differ-
ent pastors.
Our Code calls the portion due to the pastor portio
paroccialis. Formerly it went by the name of portio
canonical because established by the canons, or quarto
funeris,1* because one-fourth of all funeral offerings,
either in alms or candles, belonged to the parochus pro-
prius. It was justly considered meet that he who nur-
tured the deceased whilst living, should also receive his
due on the occasion of his funeral."0 The pastor's por-
tion, therefore, is nothing but a material token of grati-
tude and respect.
The text says, quoties, i. e., whenever a deceased pa-
rishioner is buried in or from a church other than his
own parish church, no matter whether he himself made
the choice or the family had him buried in the ancestral
chapel or tomb.81 Even the canons of cathedrals and
collegiate churches owe the portio canonica to their own
church within the boundaries of which they had their
domicile or quasi-domicile, though they may be buried in
tiC. 4. x. HI. 28: c. 2, 6°, III, soCfr. ce. 1, X, III, 28; c a,
m. Clem., in. 7.
T0 7W. Sew. ^5. c. !j, dc ref, si C. 1, X, ITT, 28.
jle
t * ^ ^ *ls* Original from
' UNIVERSITY OF WISCONSIN
148 ADMINISTRATIVE LAW
their own cemeteries.12 But no pastor's portion is to be
paid by male religious or nuns whose superior or con-
fessor performs the funeral service.83 Nor does it ap-
pear proper that female religious should pay the quarta,
even though their members die outside the religious
house. Yet the law would seem to permit the pastor to
demand it, because can. 1230, § 5, provides no exception
for them.
§ 2 says that if one had several parishes, all the pastors
concerned are entitled to an equal share of the portio
paroceialis. If vagi are buried, the quarta need not be
paid.84
Can 1237, § r, determines the offerings, and the quan-
tity of the same, from which the pastor's portion is to be
deducted. All the fees established by synodal decree for
funerals and burials are to be rated for subtracting the
pastor's portion. The question is reduced to simple terms
where the funeral fees are clearly fixed. Note the term
for funeral and burial (pro funere et tumulatione). We
generally include both in the name funeral service, to wit,
the service in church and at the grave. No doubt this is
the intention of the lawgiver. Hence it is not customary
to make an itemized statement for the use of candles,
torches, utensils, etc. Neither is the pastor's share to be
deducted from the celebration of the third or seventh day,
or the " month's mind." 80 Nor is any free offering which
the family may make to the priest who accompanies the
body to the grave, to be taxed or shared by the pastor.88
Nor are pastors to demand a larger share if the burial
8: S. C C, Sept. ia, 1699; x 8S S. Rit C, Julr 24, 1638 (n.
and 22 March, 1766. 649).
e» Cfr. Many. /. c, p. jaa, ao S. C. EE. ct RR., ScpU 17,
84 C. a. 6\ III. 171 S. C. C, 1880 (A. S S., XIII. 411).
Nov. 29, 185 1 ; Many, L c, p. 324.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 1237 149
a
takes place in or from a church of regulars, than when it
is held from a church in charge of secular clergy."
§ 2. If, for any reason, the solemn funeral service is
held, not immediately, but within a month from the date
of the burial, the pastor's share must be paid from the
fees received for that solemn, though belated, service.
Suppose a man dies on Sept. 1, and his body is taken
either to the door of the church, or directly to the ceme-
tery, where the grave is blessed by the priest because the
civil authority for some reason or other would not permit
the corpse to be taken into the church. On Oct. I,
the exequies are held, with Mass and absolutio ad turn-
bam. Now, if these exequies are held in a church which
was not the deceased's parish church, and by a priest who
was not his pastor, and the regular stole fee is paid, the
pastor would be entitled to his share." But the stole fee
was supposed to have been offered only for the solemn
function, which means not a sung Mass, but the funeral
service, with either low or high Mass, and the absolution
or Libera. For minor services, such as accompanying
the body to the grave and blessing it, or even a private
Mass, are not liable to the portio paroecialis. The mean-
ing of the text, therefore, is that the pastor is entitled to
his share of the fees even if the full funeral service is
held a month from the date of burial.
§ 4. The quantity of the pastor's portion should be
determined by the synodal tax. If the parish church and
the funeral church are different and belong to different
dioceses, the portio poroeciafis must be refunded accord-
ing to the tax established in the funeral church.
It may not be amiss to add here a decision which is
ITS. C. C, April 3, 1745 *3» <9°7 (stnal. BccL, XII, 330;
(Richter, L e., 463. "- »7)- XV, 58 ff.).
88 S. C. (L July 39, 190s; F^
gle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
150 ADMINISTRATIVE LAW
St
•
very appropriate, and we dare say, very reasonable. It
is to the effect that where there is an immemorable cus-
tom between parish churches of not demanding the quarto,
funeris, it should be observed.80 This permits us to say
that the Code is not against such a custom, as is evident
-
from the clause placed in § i, can. 1236: "salvo iure
particulari," and we believe it would be conducive to
peace and charity if this quarta funeris would be relaxed,
especially with regard to religions, because they, too,
work for the benefit of the diocese and religion in gen-
eral and help the secular clergy.
■
-"■
recording of deaths
Can. 1238
Expleta tumulatione, minister in libro defunctorum
describat nomcn et actatem defuncti, nomen parentum
vel coniugis, tcmpus mortis, quis et quae Sacramenta
ministraverit, locum et tempus tumulationis.
After the funeral services the minister shall enter m
the book of the dead the name and age of the deceased,
the name of the parents or consort, the date of death,
who administered the Sacraments, what Sacraments, and
the place and date of the funeral.90
80S. C. C, Feb. 9, 1733 00 The formula in the Rituole
(Richter, /. C, p. 464, n. 28). Rom., lit. X, c. a, a. 7.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
pi
CHAPTER III
ecclesiastical burial, to whom granted or denied
to whom granted
Can. 1239
§ 1. Ad sepukuram ccclcsiasticam non sunt admit;-*
tendi qui sine baptismo decesserint.
§ 2. Catechumeni qui nulla sua culpa sine baptismo
moriantur, baptizatis accensendi sunt.
§ 3. Omnes baptizati sepultura ecclesiastica do-
nandi sunt, nisi eadem a iure expressc priventur.
§ I. Baptism, being the Sacrament of initiation and
sign of communion with the Church and membership in
the same, is the fundamental condition of receiving a.
Catholic burial. Baptism may be received by desire — •
baptismus flaminis — and this is generally supposed in,
those who had received instructions in the faith (catechu-
mens). Hence our canon in its first section states that no
person who has died -without Baptism may be admitted to
ecclesiastical burial. This includes even unbaptized in-
fants, though it is generally admitted that a child not yet
born may be buried together with the mother in conse-
crated ground.1 Besides, it appears, at least to many,
very awkward and offensive if this law should be applied
to burial in the ancestral grave. Yet, unless non-compli-
l Cfr. Many, /. c, p. 353-
151
jle
Original from
UNIVERSITY OF WISCONSIN
152 ADMINISTRATIVE LAW
ance must be tolerated in order to avoid greater evils, the
law should be enforced.2
§ 2. Catechumens, or such as are preparing to em-
brace the Catholic faith, may be given ecclesiastical burial.
if they have died without baptism through no fault of
their own. For they arc to be compared to baptized per-
sons.3 Thus if a would-be convert would die suddenly,
with no priest at hand, as may happen in places which
missionaries seldom visit, he could receive ecclesiastical
burial.
§ 3 says that, although one may be baptized, he must
be deprived of ecclesiastical burial if he has been ex-
pressly declared ivorthy of thai penalty in law. For ec-
clesiastical burial is a sign of honor and respect given by
the Church to her dead children, and a consolation and
favor to the living. Denial of that favor must be looked
upon as a post mortem penalty for the dead, and a warn-
ing to the living.
However, being a penalty, the denial of ecclesiastical
burial must be strictly interpreted, and not extended
beyond the cases stated in the law. These now fol-
low.
h
E
12
TO WHOM ECCLESIASTICAL BURIAL MUST BE DENIED
m
Can. 1240
a
§ i. Ecclesiastics sepultura privantur, nisi ante
mortem aliqua dederint poenitentiae signa:
i.° Notorii apostatae a Christiana fide, aut sectae
haereticae vel schismaticae aut sectae massonicae
aliisve eiusdem generis societatibus notorie addicti ;
a S. O., Jan. 4, 1888, where n. AMM moto; S. O., March 30,
380 of Cone. Bait. II is explained 1859 (Coll. P. F., n. 1173).
as mere tolerance ad praecavenda 3 Cfr. c. a, x, III. 4 j.
ioi >gle
Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
CANON 1240 153
a.0 Excommunicato vel interdicti post sententiam
condemnatoriam vel declaratoriam ;
3.0 Qui se ipsi occiderint deliberate consilio;
4." Mortui in duello aut ex vulnere inde relato;
5.0 Qui mandaverint suum corpus cremationi tradi;
6.° Alii peccatores public! et manifesti.
§ 3. Occurrence praedictis in casibus aliquo dubio,
consulatur, si tempus sinat, Ordinarius; permanente
dubio, cadaver sepulturae ecclesiasticae tradatur, ita
tamen ut removeatur scandalum.
§ 1. Unless they have given signs of repentance be-
fore death, the following are deprived of ecclesiastical
burial :
i.° Notorious apostates from the Christian faith and
persons who notoriously belonged to a heretical or schis-
matical sect, or to the Masonic sect, or to other societies
of the satne kind.
The term apostates evidently includes pagans and Jews
as well as infidels or unbelievers who have fallen away
from the Christian faith and whose defection is notorious.
A Catholic who was an unbeliever, but not known as such
to others, because he kept his unbelief to himself, or ex-
pressed himself only to the one or other friend, who kept
the secret, could be buried ecclesiastically. For notoriety
implies public knowledge, or such as could not be con-
cealed by any artifice.4
Heretics and schismatics are those who have pertina-
ciously forsaken the Catholic faith or abjured obedience
to the Pope.5 Heresy and schism, too, must be notorious
to have the effect here under consideration. What was
said of apostates applies also to heretics and schismatics.
4 Can. 2197, 30; Cfr. c. 1*, x, III, »8.
5 Can. 1325. 4 2.
jfe
k ,1,., Original from
UNIVERSITY OF WISCONSIN
154 ADMINISTRATIVE LAW.
Thus a non-Catholic may be taken for a Catholic, because
he acts like one, although he is not convinced of the truth
of every Catholic dogma. Such a one might be given
ecclesiastical burial, provided, of course, that his heresy
was not notorious and he desired such a burial. The rea-
-
son lies in the fact that by Baptism he belonged to the
body of the Church, and in his mind may even have be-
longed to the soul of the Church.
The next class is that of members of Masonic sects,
a
The adjective " damnatae" being omitted, it appears that
all Masonic rites are included. Eiusdem generis means
all societies whose principal purpose is to promote crema-
tion,0 or which have tendencies similar to those of Free-
masonry.
What is to be done if the relatives or friends of such a
person insist upon his receiving ecclesiastical burial? If
the priest was called and found the patient unconscious
or speechless, the relatives or friends must tell the priest
that the sick man had desired to see a priest and gave
signs of repentance.7 Besides, the body of the deceased
must not be carried into the Masonic hall or temple. If
this was desired by the deceased himself, ecclesiastical
burial must be denied, but if the Masons carry the coffin
against the will of the defunct, ecclesiastical burial may
be granted.8
2.0 Persons excommunicated and interdicted after a
condemnatory or declaratory sentence. The text requires
that a sentence of excommunication or interdict has been
pronounced. Whether this sentence be one declaring that
the person had de facto incurred excommunication, or
one directly inflicted by the ecclesiastical judge, is of no
BS. O.. Dec. is, 1886 {Coll. P. a S. O., Aug. i, 1855 {ibid., n.
F., n. 1665), xn6).
7 S. O., Sept. 10, 1877 Gbid.,
to* 1483). ■
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1240
155
N
importance. It is also immaterial whether the excom-
municatus be vitandus or only tolerandus. Stress, how-
ever, is laid on the sentence.0 The interdict is here to
be understood of the personal interdict, which requires a
declaratory or condemnatory sentence and is generally
accompanied by a personal sentence.10
3.0 Those who have deliberately killed themselves.
As a rule, says the Holy Office,11 those who commit sui-
cide from despair or in wrath (desperatione vel iraettn-
dia) cannot be given ecclesiastical burial. But when in-
sanity has been proved, or was evident, and attested by
the verdict of a conscientious physician, ecclesiastical
sepulture is permitted with all its ceremonies. When
there is a doubt as to the suicide's mental state, ecclesi-
astical burial may be granted, but all pomp and solemn
exequies must be avoided. This would mean that the
funeral service may be held from the church, but that the
Requiem Mass should be omitted, as well as preaching,
for this is certainly a species of " pomp." A private
Mass may be said.
4° Those who died in a duel or from a wound re-
cch'cd in a duel. The term duel (ducllutn, monoma-
chia) signifies a contest with deadly weapons which takes
place by agreement between two persons on account of
some private quarrel." Hence our prize-fights, in which
no deadly weapons are used, and bull-fights, cannot be
styled duels. Tt is otherwise with the so-called " Men-
saren " of students and officers, as practiced chiefly in
Austria and Germany.18 This " detestable custom," as it
9" Ad evitanda," of Martin V,
14*8, cannot be interpreted, as
Many does (/. c, p. 354). so as to
admit tolerandi; see can. 2259 f.
10 C. 1, Clem. Ill, 9.
11 S. O., May 16, 1866 (Cell.
P. F., n. 1200).
12 Cfr. Cath EneycL, V, 184 ff.
13 S. C. Cj Aug. 9, 1890 (Coll.
P. P., n. 1739).
jte
Original fro m
UNIVERSITY OF WISCONSIN
156 ADMINISTRATIVE LAW
is called by the Council of Trent and Benedict XIV,1* was
and still is wide-spread, especially in Teutonic countries,
where it also had its origin in pagan times. The Church
tried to eradicate this savage custom and inflicted severe
penalties on the perpetrators.15 One of these is precisely
the denial of ecclesiastical burial.
Our text says that only those who died in the act of
duelling, or from a wound received in a duel, are to be
deprived of ecclesiastical burial. Benedict XIV, in a
well-known Constitution, uses a similar expression: "a
decedente quoque extra confiicttts locum ex vulnere
ibidem accepio." Therefore a connection between cause
and effect must be maintained. In other words, the
wound received in a duel must be the cause of death.
And it seems that a direct cause is required, for it may be
that a wound received in a duel causes some other disease,
after a time, and in this case we hardly believe that the
penalty could be sustained.
5.0 Those who ordered their body to be cremated.
Of this enough has been said under can. 1203, § 2. Such
persons must have retracted their order before death,
otherwise they cannot receive ecclesiastical burial.
6.° Other public and manifest sinners. This phrase
is rather wide, but may be contracted to a few categories
in the light of former legislation. By sin must here be
understood a delictum publicum, or crime, which is such
intrinsically as well as in the eyes of sensible persons.
To this class belong: (a) manifest and public usurers and
robbers, unless they have made restitution ; 10 public
profiteers and bank or train robbers; (b) those who ac-
■"■
14 Sess. 25, c. 19, dc ref.; Bened. 5. 'S^*: Clement VIII, " Illius
XIV, " DttestabiUm," , Nov. 10, vices," Aug. 17, 159J.
175a. ifi Cfr. cc. 3, 5, x, V, 19; c a,
15 Cfr. cc. 1, a, x, V. 13; Greff- X, V, 17; e. a, 6°, V, 5.
ory XIII "Ad tollendum." Dec.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1240 157
tually live a sinful and scandalous life, e. g., in public
concubinage, or conduct a notoriously meretricious trade,
or panderage;" (c) those who have habitually violated
the precepts of annual confession and communion. As to
the last-named class of persons the Roman Ritual 1B says
that their fault must be evident, which means that they
must have omitted their Easter duty for several years and
be known to the faithful as having been guilty of serious
neglect.1*
Note that all the persons mentioned under n. 1-6 are
deprived of ecclesiastical burial only if they have given no
signs of repentance. If they have given such signs, they
mav be buried like faithful Catholics, because it is the
desire of the Church that all should return to God's
grace by contrition and be restored to communion with
the mystic body of Christ.20
Signs of repentance would be kissing the crucifix, acts
of devotion, oral prayers, etc. But these signs, especially
in case of public sinners, must be known and divulged to
the bystanders and the faithful. If this has been done,
ecclesiastical burial may be given; but if possible, pomp
and solemn exequies should be omitted.21
Benedict XIV excluded duellists from ecclesiastical
burial, even when they had given certain signs of pen-
ance.2' This too rigorous clause has been softened in
our code, as is manifest from the position of the phrase,
"nisi ante mortem aliqua dcderlnt signa pocn'ttentiac."
§ 2. It may be in the six cases mentioned that the
pastor has a doubt, for instance, concerning a suicide, or a
wound received in a duel, whether it was the direct cause
IT Cfr. Manr, *. c, p. 361. 20 S. 0-, Aug. 1, 185s (Colt. P.
lSTit II, c. 2, n. 6; c. 12, x. F. n. 1116).
V, 38. 11 S. 0., July 6, 1898 K^id.. n.
l»Many, /. c, p. 360. 3007).
" " Detcstabilcm," 9 9.
>le
Original fro m
UNIVERSITY OF WISCONSIN
ADMINISTRATIVE LAW
of death. If time permits, he should inform the Ordi-
nary and abide by his decision.23 If the doubt remains
even after the pastor has been advised by the Ordinary,
ecclesiastical burial may be granted, provided no scandal is
given. Scandal may be removed by divulging the fact
that the deceased gave public signs of repentance, or that,
for instance, the suicide was committed in a moment of
mental aberration according to the physician's verdict.
Can. 1241
Excluso ab ecclesiastica sepultura deneganda quo-
que sunt turn quaelibet Missa exsequialis, etiam anni-
versaria, turn alia publica officia funebria.
For those who have been deprived of ecclesiastical
burial no [public] Requiem Mass, no anniversary, or
other public funeral service may be held.
We enclose the word " public " within brackets, but it
no doubt expresses Ihe intention of the legislator. For
private Masses may be said for any of the persons men-
tioned under n. 1-6, provided there be no comtnunicatio
in sacris. Thus it has been decided that a private Mass
may be said for one who ordered his body to be cre-
mated." In cases of doubt the Ordinary, who has to
be consulted in the matter, may grant permission to have
solemn funeral services if he deems it expedient80
S3 S. O., July 6, 1B98 (I. r.)i « S. O., Sept. 19, 1877; Dee. 15,
Sept. 19. 1877 (1 e.. n. 1483). 1886; July 6. 1898 (ibid, nn. 1483.
2« S. O., July 27, 1892 ad II 1665, 3007).
(Coll. P. F., n. 1808).
■
■
5 'rtrhnltf Original from
lOOgK UNIVERSITY OF WISCONSIN
CANON 1242 159
exhumation of corpses
Can. 1242
Si fieri sine gravi incommodo queat, cadaver excom-
municati vitandi qui, contra canonum statuta, sepul-
turam in loco sacro obtinuit, exhumandum est, servato
praescripto can. 1214, § 1, et in loco profano de quo in
can. 1212, reponendum.
If it can be done without great inconvenience, the body
of an excommunicato vitandus, who obtained burial in
sacred ground against the law, should be exhumed, with
the permission of the bishop,26 and be buried in a lot
especially assigned for that purpose.17
30 Can. 1214, 5 1-
zt Can. 1 in', see a i-\ ±, III, 28.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
Q
SECTION II
HOLY SEASONS
Can. 1243
Tempora sacra sunt dies festi; iisque accensentur
dies abstinentiae ct ieiunii.
Holy seasons are feastdays; to them must be added
days of abstinence and fast.
Already in remote antiquity civilized people found a
call to the worship of God in the changing seasons.
Sacred times and places are common to all religions.
The change of seasons, bringing with it changes in na-
ture, made a religious impression upon mankind. Man
sanctified certain seasons and dedicated them to God.
The days thus consecrated to God were known as festi-
vals. They were marked by two features: rest from
labor or worldly affairs, and consecration to the worship
of God. The first was expressed in the ancient Roman
term feria. Both ideas are contained in the Hebrew
word sabbath, which means a day of rest and sanctifica-
tion. The Church did not at first change the Sabbath of
the Jewish calendar, at least we have no evidence thereof.
But gradually the prima sabbali or first day of the Jewish
week commenced to be held in honor as the day of the
resurrection of Christ and was called the Lord's Day *
(dies dominica). . Besides these weekly recurring festi-
vals there were others to commemorate the chief events
i Cfr. Apoc. t, 10.
l60
jle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 1243 161
in the life of the Lord. Among these in the order of
time, Easter holds the first place. Gradually were de-
veloped all the feasts as we have them now, forming that
rich and carefully thought out system of feasts which is
proper to the Catholic Church.2 The old Canon Law
contains two lists of festivals, the one presenting the state
of things in the twelfth,8 the other that in the thirteenth
century.4 In the course of centuries the number of feasts
increased, so much so, in fact that their multitude led to
a reaction on the part not only of civil governments but
also of bishops. Pope Urban VIII revised the list.5 The
present arrangement was made by Pius X.a
As to days of fast and abstinence it must be said that
Q
the fast before Easter seems to be the most ancient of all.
But its duration varied according to localities. Some
fasted one day, others two, and yet others many days,
whilst some simply observed a fast of forty hours. The
forty days' fast became the rule at Rome in the seventh
century, and was soon adopted throughout the West, ex-
cept at Milan. In the eighth and ninth centuries an in-
crease took place in the number of fasting vigils, nearly
all the feasts, especially those of the Apostles,1 obtaining
the dignity of a vigil. The ernbertides were said to be of
Apostolic origin by Leo the Great, but there is no docu-
ment testifying to the feriae observed as ernbertides ear-
lier than the Liber Pontificalis.* There were originally
three. In St. Leo's day four ernbertides were observed.
The present arrangement was made by Gregory VII and
is distinctly Roman.'
■"■
...
a See Kellner, Heortoloty (EnK. 7 Funk, Manual of Church His-
tr.) 1918, Introduction. r. rv. igij, Vol. I, pp. 74, 396 f.; II,
8 C. 1, Diit. 3 de com. 164.
* C. 5, X, II, 9 de (eriis. 8 Liber Pontifical!*, ed. Duchesne,
B '* Univeria," Sept. 13. 164*. I, M'-
« Motu proprio " Supremi disci- s Kellner, /. c, p. 183 ff.
plinae," July 2, 191 1.
Go >gle
j ^ " riginal from
UNIVERSITY OF WISCONSIN
-
■
pi
162 ADMINISTRATIVE LAW
Can. 1244
§ 1. Dies fcstos itemque dies abstinentiae et ieiunii,
universae Ecclesiae communes, constituere, transferre,
abolere, unius est supremae ecclesiasticae auctoritatis.
§ 2. Ordinarii locorum peculiares suis dicecesibus
seu locis dies fcstos aut dies abstinentiae et ieiunii
possunt, per modurn tantum actus, indicere.
The supreme authority of the Church alone can estab-
lish, transfer, or abolish holydays as well as days of absti-
nence and fasting. This rule, as may be seen from the
historical note, was impressed upon the Christian people
ever since the Council of Trent.10 Hence not even a
chapter, be it cathedral or collegiate, can impose a holy-
day of obligation not observed by the Roman Church,
whereas the feastdays appointed by the latter oblige every-
where,11 unless, of course, otherwise provided. Nor can
a synod or conciliabulum transfer movable feasts to a
Sunday.18
But the local Ordinaries may, per modum tantum
actus (i. e., for a transient reason and for the time being,
but not forever or habitually) r prescribe the observance of
a feastday or of a day of fast and abstinence. Thus, for
instance, the Ordinary is not entitled to establish the
feast of the patron saint of the main or episcopal city as
a holyday of obligation for the whole diocese.18 Nor
can the Ordinary make a feastday which is ex voto obliga-
tory for an exempt religious community, dc praecepto for
them if the feast is not found in the list of feasts of obli-
10 Urban VIII. " Univtrsa," Sept. fidei," Aug. a8. 1794 (Denzinger, n.
13, 164a, I 3 (Dec. Auth., n. 812). W37)»
11 S. Rit C, June 8, 1630 (n. is S. Rit. C, Aug. i8, 17*5 (n.
535). 3377).
12 Prop. J4 damn, fer " Audortm
►ogle
£ " ^ •. -As* Original from
UNIVERSITY OF WISCONSIN
CANON 1245 163
gation prescribed for the universal Church. Feasts which
have been introduced by exempt religious by reason of a
vow oblige only the persons bound by the latter.14 Of
course, since the vow of a community lasts as long as the
community itself who made the vow, these feasts must be
observed that long; as to later generations see can. 13 10.
It may not be superfluous to add that our text mentions
local Ordinaries, which term does not include religious
superiors. The latter are, therefore, not entitled to impose
a feastday upon their communities. The vow mentioned
in the last paragraph concerns the community as such.
dispensations
Can. 1245
§ 1. Non solum Ordinarii loco rum, sed etiam paro-
chi, in casibus singularibus iustaque de causa, possunt
subjectos sibi singulos fidclcs singulasvc familias,
etiam extra territorium, atque in suo territorio etiam
peregrinos, a lege communi de observantia festorum
itemque de observantia abstinentiae et ieiunii vei etiam
utriusque dispensare.
§ a. Ordinarii, ex causa peculiari magni populi con-
cursus aut publicae valetudinis, possunt totam quoque
dioecesirn seu locum a ieiunio et ab abstinentia vel
etiam ab utraque simul lege dispensare.
§ 3. In religione clericali exempta eandem dispen-
sandi potestatem habent Superiores ad modum paro-
chi, quod attinet ad personas, de quibus in can, 514,
§ I. Not only the local Ordinaries, but also pastors,
may in individual cases and for a just cause dispense their
1* S. Rit C, June 23, 1703 (n..*nj).
oogle
Original from
UNIVERSITY OF WISCONSIN
164 ADMINISTRATIVE LAW
St
subjects from the common law of keeping feasts and from
the observance of abstinence and fast, or from both fast
and abstinence at the same time. Ordinaries could al-
ways dispense in certain circumstances and cases by law,15
but the right of the pastor to dispense rested on custom "
rather than on written law. Now it has become part of
the general law. But in order to act licitly, they must
observe the conditions laid down in this canon, which is
partly a repetition of the old law.
a) They can dispense only in individual cases as they
occur. Hence Ordinaries cannot issue synodal acts dis-
pensing persons and families from the common law, or
grant a habitual dispensation. Each case stands for itself
and none can establish a precedent ; lT each must be ex-
amined like a physician makes his diagnosis.
b) They may dispense only single individuals and sin-
gle families subject to their jurisdiction by reason either
of domicile or quasi-domicile, or by actual residence in the
territory over which their jurisdiction extends. Subjects
by reason of domicile or quasi-domicile may make use of
such a dispensation also outside of the territory of the
grantor. But peregrini or transient residents are bene-
fited by the dispensation only as long as they reside in the
district of the grantor.
c) Finally there must be a fust reason for dispensing,
since every dispensation involves a violation of the com-
mon law. Such a cause would be sickness 18 and impossi-
bility of obtaining abstinence food, although the higher
cost of such was not deemed a sufficient reason by Bene-
dict XIV.19 The climate, the nature of one's work, and
IB Urban VIII, " Uniterm," 8 3. concedenda " by Bened. XIV, " .Von
10 Cfr. Putzcr, Comment, m ambigimus," May 30, 1741, I 3.
Facult. Apost., p. 36. n. 24. 18 C. z, X, III, 46.
17 Reg. Juris 28 m 6°. Thia is lo " Libentissime." June 10. 1745.
called "tones qnotics opus fuent } 18.
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1245 165
a
physical debility must be taken into consideration. The
grantor himself is the judge of the sufficiency of the rea-
sons advanced.30
§ 2. The Ordinaries may, because of a great con-
course of people, or for reasons of public health, also dis-
pense the whole diocese or any place therein from the
law of fasting and abstinence, or from both combined.
This liberal concession renders special faculties (not par-
ticular indults; see can. 1253) superfluous. What is
meant by a great concourse of people has been authen-
tically explained by the Holy Office.21 It is not necessary
that people from other towns or cities are present, but a
multitude of inhabitants of the same city or town assem-
bled for an occasion suffices. Of course, the occasion
should be Catholic and religious, for instance, a centenary,
a pilgrimage, a large meeting of Catholic societies, etc.
As our county and State fairs offer a serious occasion for
violating the law of fast and abstinence, such a one would
constitute a sufficient reason for dispensing the partici-
pants. Our Code is not against this authentic interpreta-
tion, for it simply says : a great concourse of people. The
danger of violating the law must be general, which is.
often the case on great festivals.
We may add that another decision of the Holy Office "
requires for a dispensation from the law of abstinence on
a holyday proper, that the abstinence be anticipated.
The Code is silent about anticipation, and therefore this
rule may be considered as abolished. It was, in fact, al-
ready abrogated by decree of the S. C. C, which directed
the Ordinaries to make ample use of dispensation for the
20 S. C. P. F., Aug. 3, 1781 (Coll., 22 S. 0., Dec. 5, 1894 O'Mrf., n.
n. 548). 1884). wlierc nundinal (fairs), are
21 S. O., March 28, 1896 (Coll., especially mentioned.
P. F., D. io«>.
D
"■
►ogle
C* ^ vrIL Original from
UNIVERSITY OF WISCONSIN
166 ADMINISTRATIVE LAW
a
holydays suppressed by Pius X, without mentioning an-
ticipation at all.28
The other reason mentioned in § 2 of can. 1245 is the
in
public health. An example which recalls the influenza
is given by Benedict XIV in his Constitution " Liben-
tissime." The disease, to justify a dispensation, must
affect the people or territory, not merely a few individ-
uals, in other words, it must be epidemic, as is explained
in the same Constitution. Benedict XIV requires the
testimony of physicians to verify the existence of an epi-
demic. The local or State Board of Health would be the
proper adviser in our country.24
lit
Note that these are the only two general cases in which
the Ordinaries may grant a general dispensation : a great
concourse of people and reasons of public health. Be-
yond those they should not stretch the power now granted
to them by the common law, which was formerly given
only in the form of a " faculty " with the significant
clause : " non tamen per generate indultutn, sed in casibus
particularibus/' " The Code has removed this restric-
tion, but, as stated above, only for two general reasons,
which cannot be extended at random.
It may be asked : How far docs the power of dispens-
ing in individual as well as in general cases extend?
Benedict XIV, in three Constitutions,26 drew certain
limits, to wit, (a) that only one full meal of flesh meat
could be taken a day; (b) that no mixing of meat and
fish was permitted; (c) that the meal hours be not in-
verted, e. g., dinner substituted for supper or lunch and
Q
ssMiy 3, 1912 (A. Ap. S., IV, P. F., n. 1594); Facult. I, art. 27
341). (Putxcr, /. c, p. 99*, n. 169).
24 June 10, I74S. 5 23: inflamma- 2<J " \'on ambigtmus." May 30,
tie pectoris, which was raging in 1741 ; " In supremo," /\ug. 22, 1741;
1730. *7J3r 17*0- " Lxbentisiime," June 10, 1745.
H S. O., March 17, i8Sj (Cotl.
jle
/•^ ^ v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1245 167
vice versa. Restrictions (b) and (c) are certainly re-
moved by can. 1251, § 2. But how about the unica
comestio, upon which Benedict XIV insisted so emphati-
cally? The difficulty may be solved, not by recourse to
special faculties, which have ceased in foro exlcmo since
the decree of April 25, 1918, but by interpretation. The
Code grants the ordinaries power to dispense from both
fasting and abstinence. Hence the petitioner must clearly
state the extent of his demand, and if the grantor fulfils
his wishes to their full extent, there can be no doubt that
the petitioner may eat fieshmeat more than once a day.
Everything, therefore, depends upon the tenor of the (lis-
pensation. The grantor can restrict the use of flesh meat
to one meal a day; see can. 1251.
§ 3. Religious superiors of exempt clerical institutes
enjoy the same powers as pastors with regard to all the
persons mentioned in can. 514, §/. A difficulty may per-
haps arise from can. 1253, which says that by these canons
nothing is changed in the constitutions and rules of the
various religious organizations. Elsewhere " we have
stated that exempt superiors may dispense the whole com-
munity from fasting and abstinence. This statement
must be restricted to the days prescribed by the rule or
constitutions, since the religious superior of exempt insti-
tutes can dispense only ad nwdum parocki, i. e., like
a pastor, and a pastor can dispense only single individuals
and families. Hence the superior cannot dispense the
whole community as such from the duty of fasting or
abstinence as prescribed by the common law. However,
provided no vow is involved, we believe that the exempt
superiors may, in urgent cases, unless the constitutions
expressly forbid it, dispense the whole community by
2T Vol. Ill, p. 300, of thi» Commentary.
-"■
I Original from
jrVjOOglC UNIVERSITY OF WISCONSIN
168 ADMINISTRATIVE LAW
virtue of § 2, can. 1245, for reasons of public health.
For the text simply says " ordinaries," and this term in-
cludes the exempt religious superiors. The diocesan Or-
dinary could not grant that dispensation to exempt reli-
gious by reason of exemption, and why exempt religious
should be worse off in such extraordinary circumstances
than other people is not easily intelligible. Religious who
are employed in the missions, even as prefects apostolic,
and are entitled to dispense their subjects from the law of
fasting and abstinence, must apply to their superiors for
a dispensation.28 However, this applies only to exempt
religious ; for non-exempt religious, as well as exempt re-
ligious belonging to lay institutes, the competent superior
is the local Ordinary. Besides, it is evident that exempt
religious who are vicars apostolic or bishops, are not
bound to apply to their religious superiors for dispensa-
tion. To do so would contravene can. 627, § 2, and be
■unworthy of their rank. But the rule applies to exempt
religious who are pastors or assistants (curates), who,
therefore, must have recourse to their superiors, either
local or higher, according to the constitutions, in order to
obtain a dispensation from fasting and abstinence which
they themselves need, though, as pastors, they may by
law dispense single individuals or families without having
recourse to their superiors.
reckoning of feasts and fast days
Can. 1246
Supputatio diei festi, itemque diei abstinentiae et
ieiunii, facienda est a media nocte usque ad mediam
noctem, salvo praescripto can. 923.
asS. 0., April u, 174* (Coll. P. F., n. 337)-
ioogle*
I ,* Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1246 169
a
Feast days as well as the days of fasting and abstinence
run from midnight to midnight, i. e., twenty-four hours,
counting from midnight to twelve o'clock of the following
night, according to the time in vogue at the time of cele-
bration. If the new time has been adopted, this is to be
followed; if the old time was retained, it may be taken
as standard. The time for gaining indulgences is regu-
lated in can. 923.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
TITLE XIII
HOLY-DAYS
■
Can. 1247
§ 1. Dies festi sub praecepto in universa Ecclcsia
sunt tantum : Omnes ct singuli dies dominici, f esta Na-
tivitatis, Circumcisionis, Epiphaniae, Ascensionis et
sanctissimi Corporis Christi, Immaculatae Concep-
tionis et Assumptionis Almae Genitricis Dei Mariae,
sancti Ioseph eius sponsi, Beatorum Petri et Pauli
Apostolorum, Omnium denique Sanctorum.
§ 2. Ecclesiastico praecepto dies festi Patronorum
non subiacent; locorum autem Ordinarii possunt sol-
lemnitatem exteriorem transferee ad dominicam proxi-
me sequentem.
§ 3. Sicubi aliquod festum ex enumeratis legitime
sit abolitum vel translatum, nihil inconsulta Sede Apo-
stolica innovetur.
§ 1. Fcasldays of obligation for the universal Church
are: All Sundays; Christmas (Dec. 25th) ; the Circum-
cision of our Lord (New Year's Day, Jan. 1st) ; Epiph-
any (Jan. 6th); the Ascension of Our Lord; Corpus
Christi (Thursday after Trinity Sunday) ; the Immacu-
late Conception of the B. V. M. (Dec. 8th) ; the Assump-
tion of the B. V. M. (Aug. 15th) ; St. Joseph's day
(March 19th) ; the festival of SS. Peter and Paul (June
29th), and All Saints' Day (Nov. 1st).
170
N
;Ic
Original from
UNIVERSITY OF WI5C0NSI
CANON 1247 171
a
The holy-days of obligation for the universal Church,
therefore, are ten in number, and no Ordinary or religious
community may introduce others with equal obligation for
all the faithful.
u
Hence § 2 provides that the patron feast of a diocese,
or city, or town does not oblige by ecclesiastical precept,
though the Ordinaries may transfer the external celebra-
tion of the same to the following Sunday.
The custom of calling a church after a saint, or dedi-
cating it to his honor, grew out of the old martyria. The
faithful were wont to observe the feast of a prominent
martyr as a general festival, whether it fell on a weekday
or on a Sunday. In the ninth century diocesan statutes
■
command this celebration. But the obligation of cele-
brating the festivals of patron saints was not imposed
by the decretal of Gregory IX. Urban VIII, in his Con-
stitution " Universo" of Sept. 13, 1642, directed that the
feast of the principal patron of every kingdom, province,
city or town be observed as a holyday of obligation. The
people at large were not pleased with the sweeping inno-
vation caused by the French revolution, and consoled
themselves by transferring the abrogated holydays to the
following Sunday.1 This transfer is permitted by the
Code as far as the external celebration is concerned ; the
ofheium chori must be celebrated on the proper or occur-
ring day, but the officiuni fori, or the celebration with sol-
emn Mass and ceremonies, decoration of the Saint's pic-
ture, etc., may be transferred to a Sunday.
§ 3. If any of the above named (ten) holydays (of
obligation) has been anywhere abolished or transferred,
nothing shall be changed without the advice of the Apos-
tolic See.
1 See Kcllner, Heoriohgy, p. 194 ff.
Q
"-.
^
% ,] , Original from
UNIVERSITY OF WISCONSIN
i72 ADMINISTRATIVE LAW
In the United States, under a decree of the S. C. Propa-
ganda Fide of Nov. 25, 1885, there are six holydays of
obligation, namely, the feast of the Immaculate Concep-
tion, Christmas, New Year's Day (the Circumcision), the
Ascension, the Assumption of the B. V. M., and All
-
Saints' Day.1
In Canada the provincial council of Quebec (1854)
asked for an arrangement of feasts similar to that made
for the United States. The S. Congregation answered
affirmatively, but commanded to retain the feast of the
Epiphany and to omit the Assumption.3 Hence they, too,
have six holydays of obligation; but instead of the As-
sumption they observe Epiphany.
On the islands of Trinidad and Dominica (dioceses of
Port of Spain and Roseau, or Charlottetown) the feasts
of the Assumption and of SS. Peter and Paul are trans-
ferred to the following Sunday, but the office and cere-
monies must be held on the day proper.*
These examples may suffice to interpret the meaning of
§ 3. can. 1247.
obligations connected with holydays
Can. 1248
Festis de praecepto dicbus Missa audienda est; et
abstinendum ab operibus servilibus, actibus forensibus,
itemque, nisi aliud ferant legitimae consuetudines aut
peculiaria indulta, publico rnercatu, nundinis, aliisque
emptionibus et venditionibus.
l Cfr. Acta et Decreta Cone. Bait. Lot., Ill, ma, 1116). Regarding
///, 1886, p. CV f. other English-speaking countries,
3 S. C P. F., May 25, 1855 {Coll. Great Britain, Ireland, etc., we could
Lac, III, 614. 66-4). nnd nothing special.
4 S. C F. F., March 1, 1868 (Colt.
ed by GoOgle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 1248 173
a
As stated in the historical note, every holyday of obli-
gation is a day of rest and worship. Hence on these days
Mass must be heard. This obligation obliges all the faith-
ful of the Latin Church and the inhabitants of China and
other missionary countries under the S. C. P. F.5 The
obligation is grievous, binding under mortal sin. One
does not comply with this precept by hearing two or even
four parts of Masses said simultaneously by different
priests." It may not be amiss to set forth here what the
S. C. P. F. answered the Vicar Apostolic of Ueskub in
Servia ; for it has a general bearing. Not only distance,
but also the condition of roads, as well as age, sex, and
mental attitude of the faithful must be taken into con-
sideration where there is question of excusing them from
the obligation of attending Mass on holydays of obliga-
tion. If going to church would cause a great inconven-
lence, one may be freed from the duty ; but if the distance
is not great, or the fatigue would be but small, the obliga-
tion does not cease.7 The decision refers to the theories
of the moralists, who may therefore be consulted.8
The second obligation is to abstain from senile work,
including all kinds of forensic acts (unless lawful custom
or a particular indult permits them), the holding of public
markets, fairs, sales, etc. Servile works arc such as are
performed by the bodily faculties and destined chiefly
for the use and support of the body. Some think that
the element of slavery or drudgery might have been
added.9 But now-a-days there is no reason why this ele-
0 S. O., March 23, l6$6 ad 1; Nov. a See Sabctt I- Barrett, Theol. Mo-
13, 1669; S. C. P. F-, Sept is, 164S rali*, ed. 77a, H>to. p. 340, B. 240 ff.
(Coll.. an. 126, 189, 114). » Thus most moralists (see Sabetti-
• S. O., propp. 52, S3 damn., Barrett, /. c, n. 352, p. 248). The
March 4, 1679 (Denzinger, n. 1069 ancient Roman idea that such menial
I.), labors were performed only by slaves
T S. C P. F.. Sept. 26, 1840. dub. had its influence upon theologiani.
16 {Coll., n. 914).
jle
f^ ^ s.r*\s± Original from
UNIVERSITY OF WISCONSIN
174 ADMINISTRATIVE LAW
merit should be introduced into the definition of servile
work. Farm work, such as ploughing, planting, harvest-
ing, is certainly servile; but a farmer would object to
being called a slave or mercenary. The same is true of
professional labors.
Forensic acts are all trials held in civil as well as crimi-
nal (even ecclesiastical) courts and the routine business
of administration conducted therein. Extraordinary and
urgent acts of administration may be excepted. The term
forensic, at least in ecclesiastical language, also includes
military operations.10 This does not mean that the clean-
ing of barracks and polishing of arms or an hour of gym-
nastic exercise could not be permitted or at least tolerated.
Public markets and fairs or sales, for instance, of stock
or produce, are not allowed by the civil law in our coun-
try, and a check issued on a Sunday is invalid. Benedict
XIV had to deal chiefly with Italians, who were and still
are wont to hold fairs (fiere) on holydays. These
fairs were more leniently dealt with than public mar-
kets, which the Pope forbade.11 Hence the clause: "un-
less lawful custom and special indults permit." There is
nothing in the text which would forbid baseball or ath-
letic games or sports. Neither can the Constitution of
Benedict XIV be invoked against them,12 for it forbids
such games and plays — our "movie" shows would
perhaps deserve a severer censure 13 for the reason of
indecency and lasciviousness. Athletic games, if prop-
erly conducted, i. e., with due regard to Christian modesty,
belong rather to the liberal arts and cannot be condemned.
The S. Congregation has instructed missionaries to be
P
10 S. C. EE. ct RR-, Dec 14, 1674 it "Nihil proficto," Aug. iz,
(Bivzarri, i. c, p. 372): " mililari- 174a.
bus pratsiJiis aliUgue forensibus." 13 Set Koch-Preuss, Moral Theol-
IX" Paternae charitatit," Aug. 24, ogy, Vol. Ill, Si. Louis, i>>io, pp.
1744; " Ab to tempore," Nov. 5, 1745. 5a sqq
Go< >gle
J ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 1249 175
Q
more lenient towards servants and bakers who have to
work on holidays and therefore can not assist at Mass."
Equal leniency is admissible for workingmen engaged in
the service of public utilities, such as railroads, fire de-
partments, light, power, and heat plants, etc.15
WHERE MASS MAY BE HEARD
c
S
Can. 1249
Legi de audiendo Sacro satisfacit qui Missae adest
quocunque catholico ritu celebretur sub dio aut in
quacunque ecclesia vel oratorio publico aut semi-publi-
co et in privatis coemeteriorum aediculis de quibus in
can. 1 1 90, non vcro in aliis oratoriis privatis, nisi hoc
privilegium a Sede Apostolica concessum fuerit.
The law of hearing Mass may be complied with by at-
tending a Mass said in any Catholic rite (Latin, Greek,
Syriac, Coptic, or Armenian). Hence Ordinaries or
priests are not allowed to forbid the faithful to frequent a
church of another rite, although they may exhort them to
come to their own church, especially on holydays.16 One
restriction, or rather natural condition, must, however, be
added. The law requires that Mass be heard. If a
in
Catholic of the Latin rite would enter a Greek Church,
a
not knowing what kind of celebration or function he was
attending, he certainly could not be said to hear Mass, al-
though we readily admit that external attention only is
required.
The second clause of our canon states that one may
14 There 19 a great deal of servile physiologically and morally objeo
work connected with running raa- tionable "movies."
chines which require constant atten- 15 S. C. P. 1 . Sept. 26, 1840, ad
tion. There 11, from this point of dub. 15 {Coll., n. 914).
view, more excuse for a decent thea- it S. C. P. F., April 30, 186?, ad 1
tre than for the psychologically, (Coll., n. 1228).
>Ie
j ^ Original from
UNIVERSITY OF WISCONSIN
176 ADMINISTRATIVE LAW
a
hear Mass in the open air, or in a church or a public or
semi-public oratory. In such oratories, according to our
Code,17 all ecclesiastical functions may be held. One may
also hear Mass and fulfill the obligation in a private ceme-
iery chapel, as described in can. 1190.
Domestic or private chapels erected with an indult of
the Apostolic See are only for the benefit of the grantee
and those mentioned in the indult, as explained under can.
1195, and hence others do not comply with the law by
hearing Mass in them.
As to chapels on ships or vessels, the S. Congregation
has decided that these must have a fixed or permanent
place, i. e., they must be dedicated for the purpose of di-
vine worship, and form, as it were, a special and separate
compartment for that sole purpose, as long as the vessel
lasts. If this is the case, the chapel is to be considered a
public oratory, and all who assist at Mass therein, even
while the ship is in port, comply with the precept of hear-
ing Mass. If the chapel has no permanent place, it is to
be regarded as a portable altar.13
17 See can. 1191, I 2; can. 1193. 10, 1901 (n. 4069); Muy, I. c.p p.
18 S. Kii. C, March 4, 1901; May 131.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
TITLE XIV
ABSTINENCE AND FASTING
the law of abstinence
Can. 1250
Abstinentiae lex vetat came iureque ex came vesci,
non autem ovis, lacticiniis et quibuslibet condimentis
ctiam ex adipe animalium.
The law of abstinence forbids the eating of flesh meat
and broth or soup made of meat ; but it does not forbid
cggs, lacticinia, and seasoning with fat of animals. The
new law here is milder than the old, for lacticinia were
not always permitted by the Church, as may be seen from
some Constitutions of Benedict XIV.1 The term lacti-
cinia includes everything that is produced from milk, as
well as the milk itself, — cheese, butter, margarine, etc.
These, therefore, may be used even on days of abstinence. ■
Fat of animals was denned as the fat, grease, or lard of
any animal, not only of hogs.8
the law of fasting
Can. 1251
§ 1. Lex ieiunii praescribit ut nonnisi unica per
diem comestio fiat ; sed non vetat aliquid cibi mane et
l"Nori ambigimni"; "In *u- ■ S. 0., May 13, 1896: Sept. 1899
prrmo"; " Libentissme." Cookinfi- (Coll P. F.. nn. i9aS, 2067).
with oil only was permitted. 3 S. O., May 1, 1889 (ib\d., n.
1704).
177
oogle
% .,1,., Original from
UNIVERSITY OF WISCONSIN
178 ADMINISTRATIVE LAW
vcspere sumcrc, scrvata tamcn circa ciborum quantita-
tcm probata locorum consuctudinc.
§ 2. Ncc vetitum est carnes ac pisces in eadem refec-
tione permiscere ; nee serotinam refectionem cum pran-
dio permutare.
The law of fasting permits only one full meal a day,
but it does not forbid the taking of some food for break-
fast and supper.
The quantity and quality of this repast is left to
local custom. Care must be taken that one does not take
" something " between meals too often on days of fast,
as this might eventually constitute a considerable quan-
tity or amount almost to a full meal*
Those who are not obliged to fast on the days pre-
scribed, and have received either a general or a particular
indult to eat meat, may cat flesh meat every time they take
a meal.0 Thus aged or sickly persons or laborers, who
are dispensed from observing the fast, may eat flesh meat
three times or oftener a day. This, too, is a modification
of former papal constitutions.® Besides, the S. Peniten-
tiary has decided that if the head of the family (pater
familias) is dispensed from the law of abstinence, all
members of the family subject to him (quae stint in po-
testate patris familias) may also eat flesh meat. How-
ever, those who are bound to fast may use flesh meat only
once a day, at the principal or full meal.7 If a son or
daughter, or other member of the family is lawfully
dispensed from abstinence on account of sickness, the
head of the family may extend that favor to the other
members, under the same condition as stated above, vi$.,
4 S. O., prop. 29 dimn. March 18, o Especially of those of Benedict
1666 (Denxinger, n. 1000). XIV, quoted above.
B S. Poenit., Feb. 24, 1819; March T S. Pocnit, Jan. io, Jan. 16, 1834
16, 1882 (Coll. P. F„ nn. 734. 1569). (Coll. P. F., n. 83a).
jle
/""* -» -. iL» Original fro m
UNIVERSITY OF WISCONSIN
■
pi
CANON 1252 179
that flesh meat may be used only once a day by those
who are otherwise obliged to fast.*
Another mitigation of the law of fasting is here gen-
eralized : Flesh meat and fish may be taken at the same
meal, and dinner and supper may be interchanged. Thus,
for instance, if one, because of his studies, or for any
other reason, should prefer to take lunch at about 10 or 11
o'clock, and dinner at 5, there could be no reasonable
objection.9 Note also canon 1252.
days of abstinence and fasting
Can. 1252
§ 1. Lex solius abstinent iae servanda est singulis
sextis feriis.
§ 2. Lex abstinentiae simul et ieiunii servanda est
feria quarta Cinerum, feriis sextis et sabbatis Quadra-
gesimae et feriis Quatuor Temporum, pervigiliis Pen-
tecostes, Deiparae in caelum assumptae, Omnium
Sanctorum et Nativitatis Domini.
§ 3. Lex solius ieiunii servanda est reliquis omnibus
Quadragesimae diebus.
§ 4. Diebus dominicis vel festis de praecepto lex ab-
stinentiae, vel abstinentiae et ieiunii, vel ieiunii tantum
cessat, nee pervigilia anticipantur ; item cessat Sabbato
Sancto post meridiem.
§ 1. The law of abstinence only must be observed on
all Fridays.
§ 2. The law of abstinence and fasting must be ob-
served on Ash Wednesday, on the Fridays and Saturdays
a
e/frirf.; the reason why this favor >S. O., July 29, 1859: Sept. 17,
may be used is not the indult, but 186a (Coll. P. P., un. 1146, 1330);
the physical inability of the filii cfr. Eccl. Review, 1020. Vol. 6a, p.
families to procure other food. 309 f-
jle
v ,| » Original from
UNIVERSITY OF WISCONSIN
■
pi
180 ADMINISTRATIVE LAW
of Lent, on the etnberdays, on the vigils of Pentecost, the
Assumption, All Saints' Day, and Christmas.
§ 3. The law of fasting only must be observed on all
other days of Lent.
§ 4. On Sundays and holydays of obligation (except
holydays in Lent) the laws of fasting and abstinence do
not bind ; nor must vigils of holydays of obligation,
which fall on a Sunday, be observed on the preceding
day. Thus if the feast of the Assumption or All Saints
or Christmas should fall on a Monday, the vigil need not
be observed on the preceding Saturday or Sunday. Not
on Saturday, because, as the text says, "nee pervigUia
anticipantur " ; not on Sunday, because there is no fast.
Only holydays of obligation are thus favored.
The Lenten fast and abstinence cease at noon on Holy
Saturday, that is to say, at 12 o'clock.
particular laws
Can. 1253
His canonibus nihil immutatur de indultis particu-
laribus, de votis cuiuslibet personae physicae vel mo-
ralis, de constitutionibus ac regulis cuiusvis religionis
vel instituti approbati sive virorum sive mulicrum in
communi viventium etiara sine votis.
m
Q
These canons leave unchanged particular indults, the
vows relating to fasting and abstinence made by individ-
uals or corporations, and the constitutions and rules of
approved orders or congregations of religious, male as
well as female, and of those who live in common without
vows.
I. As regards particular indults of the Apostolic See,
it must first of all be observed that the decree of the S. C.
Consistorialis of April 25, 1918, cannot simply be applied
"-.
G 1 Originalfrom
OO^IL UNIVERSITY 0FWI5C0NSIN
CANON 1253 181
to particular indults, because it refers to habitual faculties
of Ordinaries granted for the external forum. Indults
are not identical with faculties, as the latter comprehend
various kinds of concessions or favors, whilst indults are
given for specific purposes, generally designated very mi-
nutely, and to individual persons. It must, however, be
admitted that these two terms are frequently employed
synonymously. But there is a more stringent reason : it
would be absurd to hold that the S. Congregation would
nullify a canon without as much as specifying it in its
decree. Canon 1253 distinctly maintains and upholds
particular indults. The adjective particular must be ex-
plained according to the significance of a particular law,
which implies local or provincial legislation, or such as
differs from universal legislation. Hence a particular
indult may affect a diocese or province, or even a nation,
in contradistinction to the whole Church. These consid-
erations premised, the following indults may concern the
United States.10
1. The indult of July 25, 1858, which permits the eating
of flesh meat on Saturdays when the law of fasting does
not oblige. This indult is out of date,11 for these Satur-
days are now abolished by general law, and unless a vow
is in the way, they need not be observed.
2. The indult granting the use of flesh meat on
Wednesdays of Advent, given Sept. 2, 1837, is partly out
of date,12 for the law of abstinence no longer obliges
in Advent, except on Wednesday of embertide. However,
since the S. C. P. F. granted permission to use flesh meat
on all Wednesdays of Advent, including the Wednesday
10 Concerning Great Britain we also for the province of St. Louil
were unable to find any particular (ibid.. Ill, 319, 321).
indult*. It Coll. Lac., Ill, 61.
»i Coll. Lac., Ill, 17; it ccasc»
jle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
182 ADMINISTRATIVE LAW
of the cmberdays, we believe that this part of the indult
still holds. But as this day is not included in the indult
of Aug. 3, 1887, given by the Holy Office X8 and ratified
by Leo XIII, it would seem to follow that the latter must
be considered binding, especially since Saturday was ac-
cepted as exempt from abstinence.
3. The indult of Aug. 3, 1887, granted by the Holy
Office reads; (a) The use of flesh meat, eggs, and lac-
ticinia is allowed on every Sunday of Lent, at every meal,
and on every Monday, Tuesday, Thursday, and Saturday
of Lent at the principal meal, except on the Saturdays of
Ember week and Holy Week. There is added a clause
forbidding the promiscuous use of meat and fish ; this
clause is now abolished by can. 1251, § 2. (b) Lacticinia
and eggs are permitted on every day of Lent on which no
flesh meat is allowed at the main meal and lunch (sup-
per), (c) Some bread may be taken, together with cof-
fee, tea or chocolate, (d) Where the principal meal can-
not be taken at noon, the order of lunch and dinner may
be inverted. For this no indult is now needed, (e)
Lard or fat may be used for cooking. No indult re-
a.
quired, (f) Those exempt from the law of fasting may
eat flesh meat, eggs, and lacticinia several times a day on
all days on which their use is permitted to all the faithful
(as on the Sundays of Lent).
This indult was given for ten years, and express men-
tion of it must he made each year in the Lenten regula-
tions. We suppose it has been renewed, and thus remains
in force. Of practical value are only points (a) and (f),
and the latter only ad quietem conscientiae. Under this
indult in Lent the Wednesdays are observed instead of
the Saturdays, with the exception of Ember week and
i> Cfr. Putwr, Comment, in Foe. Ap„ p. 395.
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
>gk
CANON 1253 183
Holy Week, when Wednesday, Friday, and Saturday
must be observed as days of abstinence.
a
One more remark: the indult of Aug. 3, 1887, in the
very beginning mentions the fact that the favors it grants
are intended for Lent only. What then of the other Em-
bcr days? Must all three days of the other three Ember
weeks be kept ? Custom, we are told/4 has extended this
favor to all the other fast days. But certainly not by vir-
tue of the indult ; for although we are allowed to interpret
favors broadly, we have no right to extend a favor beyond
the tenor of the indult by which it is granted.15 We do not
deny the force of custom in the matter, nor are we obsti-
nately bent on enforcing the " magro." Since even the
last Plenary Council of Baltimore (n. 11 12) had to con-
fess that uniformity in the discipline of fasting was im-
possible, we fear that the conditions of custom are veri-
fied. Recourse to the Holy See would certainly be safer.
4. The indult granted by Pius IX to our soldiers and
sailors is still in force. In virtue of this indult they are
obliged to abstain from flesh meat only on six days of the
year: Ash Wednesday, the three last days of Holy Week
(or now rather only Good Friday and Holy Saturday to
twelve o'clock), on the vigils of the Assumption and of
Christmas. This favor is granted to all who are in active
HI
service, but not when they are on leave of absence. The
families who eat with these soldiers at the same table,
enjoy the same favor. The special faculties granted to
our army bishop were given only for the time of war.
II. Vows are not affected by these canons, The
Minims have a special vow of perpetual abstinence. A
municipality or government may vow to observe the fast
U Putier, /. c.r p. J97. according: to Konings and Kenrick.
16 Ibid.
oogle
v ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
i84 ADMINISTRATIVE LAW
or abstinence on a certain day, for instance, on account of
an epidemic or earthquake."
III. The constitutions and rides of religious institutes
may prescribe days of fasting and abstinence besides those
appointed in the Code. If nothing specific is determined
on this head, the members are allowed to observe the days
mentioned in can. 1252. Besides, the superiors may grant
dispensations, as far as can. 1245, § 3, permits, and pro-
vided the constitutions do not forbid. A declaration of
the S. C. Ret, of Sept. 1, 1912, says: The mitigations
and dispensations of fasting and abstinence prescribed by
the general law of the Church also benefit religious, but
fasts and abstinence prescribed by their rule and consti-
tutions are not mitigated by a general indult or law, unless
such indult or law expressly includes religious. Our
Code emphatically states that the approved rules and con-
stitutions of religious institutes are not changed by the
general law. Those religious, therefore, who do not ob-
serve their peculiar laws concerning fasting and absti-
nence transgress their rule, but not the law of the Church,
and therefore are liahle to punishment only in so far as
their constitutions declare them guilty and punishable.17
Most constitutions do not bind under pain of sin.
who is obliged to fast and abstain
Can. 1254
§ 1. Abstinentiae lege tenentur omnes qui septimum
aetatis annum expleverint.
§ 2. Lege ieiunii adstringuntur omnes ab expleto
vicesimo primo aetatis anno ad inceptum sexagesi-
".
mum.
ie See can. 1310. 11 A. Af. S., IV, 626 i.
v ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
igle
CANON 1254 185
The law of abstinence binds all who have completed the
seventh year of age. This law obliges even on the vigils
of suppressed feasts if these vigils were observed by rea-
son of a particular precept or vow.18
The law of fasting obliges all Catholics from the
twenty-first year of age, completed, until the beginning
of the sixtieth year. The general tenor of this law, from
which no one in the Latin Church is exempt, was ex-
plained above.10 Here two condemned propositions may
be mentioned: (1) All officials employed by the State
in physical labor are excused from the law of fasting, nor
is it necessary to be morally certainly whether fasting and
work are compatible. (2) All those riding on horseback,
whether the journey be necessary or not, even if it lasts
only one day, are absolutely excused from fasting.80
Concerning working men, professional men, builders,
servants, etc., employed by non-Catholics or lax Catholics,
the Holy Office has decreed that they may eat meat on
forbidden days, provided it is not purposely served to spite
the Catholic Church, and provided also they can find no
other employment.21 For the rest the moralists should be
consulted.
ia S. C. C, Sept 18, 1911 (A, Af. 2oPropp. 30, j[ damn. March 18,
S., Ill, 480}; sec can. ijio. 1666 (Dcminger, n. 1001 f.).
i» Sec S. O-, March *i, 165$; S. 21 S. O., May *7, 1671; Dec 14,
C P. F.. Sept. ia. 1645 (.Coll., nit. 1482 {Coll. P. Fu nn. 195. 960).
126. 114).
od by GoOgle
Original from
UNIVERSITY OF WISCONSIN
PART III
DIVINE WORSHIP
Divine worship is an essential feature of the Church,
originating in the relation of the creature to the Creator.
Foremost, of course, in this worship is God himself. But
as the Second Person of the Blessed Trinity is, as it were,
more closely connected with the Church, in whose temples
He dwells, the Blessed Eucharist and all that is related to
it deserves closer consideration. Around the Divinity
there clusters a crown of Saints, to whom men pay hom-
age. Hence a special section of the Code is devoted to
the worship of the Saints. The worship of God being
the outcome of the virtue of religion, may show itself in
external acts, and the same is true of the veneration of
the saints. Hence mention is made of processions.
Lastly, man may bind himself more immediately to the
worship of God by vows and the solemn invocation of the
Divine Name.
The Code deals with Divine Worship logically after
treating of sacred places and seasons, because these latter
form the setting or frame of the interior picture, or, as
we might say, the continens of the contentum. We must
again remind the reader that dogmatic exposition is not
the purpose of these canons, although they offer matter
for lengthy elucidation.
186
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 1255 187
Can. 1255
§ 1. Sanctissimae Trinitati, singulis eiusdem Per-
sonis, Christo Domino, etiam sub specicbus sacramen-
talibus, debetur cultus latriae ; Beatae Mariae Virgini
cultus hyperduliae ; aliis cum Christo in caelo regnanti-
bus cultus duliae.
§ a. Sacris quoquc reliquiis atque imaginibus vcnc-
ratio ct cultus debetur relativus personae ad quam
reliquiae imaginesque referuntur.
§ 1. To the Blessed Trinity as well as to each of the
three Persons, to Christ our Lord, also under the sacra-
mental species, is due the cult of latria; to the Blessed
Virgin Mary, the cult of hypcrdulia; to the other Saints
reigning with Christ in heaven, the cult of dulia.
Latria, from the Greek word Karpcvv, means service,
worship; dulia, from fioi»A«'o, also signifies service. From
this it may be seen that the original etymology hardly
indicates an essential distinction between the two terms.
It was the theologians who introduced this well-known
distinction.
The difference between dulia (including hyperdidia)
and latria is as vast as the gulf that separates the
creature from its Creator. The relation between dulia
and latria, like that between creature and Creator,
is purely analogical. Their formal objects arc separate
and distinct. The formal object of latria is the virtus
religionis, or virtue of religion, which is based upon jus-
tice; that of dulia the virtus observantiae, as St. Thomas
says.1 This distinction is sufficient to disprove the odious
charge, sometimes made against Catholics, that they adore
the Virgin Mary and the Saints. Of its very nature the
g
1 Summa Thee!., II— II, q. 10a »q.
.'Ie
k ,1,., Original from
UNIVERSITY OF WISCONSIN
188 ADMINISTRATIVE LAW
worship we give to the Saints has nothing in common
with idolatry.2
§ 2. To the sacred relics and images a relative venera-
tion and worship are due, in as far as these relics and
images refer to persons. The dulia which we exhibit to
the person of a Saint is absolute, in contradistinction to
the merely relative worship which we give to relics and
images. Another essential difference is that relics and
images, being inanimate objects, may be venerated but not
invoked. " Honor or reverence," says St. Thomas, " is
due solely to rational creatures; those devoid of reason
can be honored or reverenced only with respect to some
rational nature/' * Thus it would not be impious or un-
lawful to venerate the image of God the Father seated on
a throne, which may be placed in a Christian temple.*
For the veneration or worship is exhibited not to the
image as such — this would be sheer idolatry or fetich-
ism — but to the Sacred Person of God the Father.
Here a few rules may be given concerning lhe,venera-
tion of the Holy Cross and other instruments of the Pas-
sion and death of our Lord. If a relic of the true Cross
is exposed publicly and in a visible or perceptible way, a
genuflection on one knee is made in acccssu et recessu, as
often as the faithful or clergy pass by the middle of the
altar. The priest who incenses the sacred relics also
makes the genuflection on one knee, but incenses it stand-
ing. If the sacred relic is hidden in a tabernacle or cus-
•
tody, the head is bowed.6 Sacred thorns receive the
same signs of veneration as relics of the Holy Cross.€
J Pohle-Preun, Marieloty, 1914, 6 S. Rit. C, May 7, 1846; March
p. 140. 19. »869l May 33, 1835 (nn. 3391,
S Summa Thtol., Ill, q. a$, art. J-iot, *7**)-
4: Pohl*.PrtuM. /. c, p. 141. OS- R't. C, Sept. 7. i»97 <«•
4 Prop. 25 damn., Dec. 7, 1690 3966)-
(Deminfer, n. 1183).
§le
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 1256 189
Before the Crucifix (without relics of the Holy Cross) a
bow is sufficient [inclinatio profunda), but from the ado-
ratio crttcis on Good Friday to the None of Holy Satur-
day, inclusively, a genuflection on one knee is made.7 To
sacred linens miraculously soaked with the species of the
sacred blood, the same signs of veneration are paid as to
the relics of the true Cross, and to the same extent.8 The
image of the Infant Jesus (Bambin* Gesu), exposed on
the main altar during Christmas time, is incensed like the
Cross.
9
PUBLIC AND PRIVATE WORSHIP
CI
Can. 1256
Cultus, si deferatur nomine Ecclesiae a personis le-
gitime ad hoc deputatis ct per actus ex Ecclesiae insti-
tution Deo, Sanctis ac Beatis tantum exhibendos, di
citur publicus; sin minus, privatus.
Worship exhibited to God, the Saints, and the Blessed
Virgin in the name of the Church, by ministers lawfully
appointed for that purpose and through acts established
by the Church, is called public; otherwise it is private.
Note here three requisites for public worship: it must
be offered (1) in the name of the Church, (2) by her
ministers (3) by acts established by her. For instance,
veneration may be paid to a person who died in the odor
of sanctity by pious persons, but it cannot be called a
public cult before the person has been declared a Saint
or Blessed ; 10 such a cult would be purely private and of
very doubtful merit. Again prayers may be publicly re-
a
IS. Rit C, May 9, 1857 (n. » S. Rit. C, Feb. 15, t%f$ (n.
3°49)> 3^88).
IS. Rit. C, Juno a7, 1K8 (n. loCfr. Bened. XIV. *' Quamvii
3176). jvsto," April 30, 1749, I it.
jle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
ipo ADMINISTRATIVE LAW
Dl
cited, but if they are not approved by the Church, they
have a private character.
APPROBATION OF THE LITURGY
P
Can. 1257
Unius Apostolicae Sedis est turn sacram ordinare
liturgiam, turn liturgicos approbare libros.
The Apostolic See alone has the right to prescribe the
sacred liturgy and to approve liturgical books.
Hence neither patriarchal nor cathedral nor collegiate
chapters may change or add anything to the liturgical
books.11 Neither archbishops nor bishops — still less, of
course, inferior prelates — may act as judges in answer-
ing doubts concerning sacred rites and ceremonies."
This, of course, must be understood of authentic an-
swers. If one has consulted the rubrics and looked up
the authentic decrees of the S. Congregation of Rites, he
may state what in his opinion has been authentically de-
cided. A bishop cannot extend to the whole diocese the
office of a Saint who is venerated in the cathedral
church."
Concerning the liturgical books, the following general
decree x* serves as a guide.
1. The liturgical books, as far as they require official
approbation, are: the Roman Breviary, the Missal, the
Ritual, the Pontifical and excerpts from them, as well as
the Roman martyrology. Then, the Caercmoniale Epis-
coporxtm, the propria of the Breviary and the Missal of
a diocese, a religious order or a congregation, the Memo-
li S. Kit. C, May 2, 1612 (n. is S. Rit C, Jin. z6, 1607 (n.
a?7). «5>-
11S. Rit. Cj June II, 1605 ad 1 «5. Rit C, May 17. 19" (n.
(a. 179). 4266).
■
>Ie
/"* -» ^ ,|„ Original fro ni
UNIVERSITY OF WISCONSIN
~
CANON 1257 191
riale of Benedict XIII for smaller churches, the Jnstructio
Clementina for Forty Hours' Devotion, the Collectio De-
cretorum S. Rit. C.
2. The editions of these books are either tvpicae or
iuxta ty picas. The typical editions may be printed only
by the Vatican Press or by publishers who have obtained
that privilege from the S. Congregation of Rites. The
same Congregation revises every single sheet of the typi-
cal edition, and every typical edition must contain the
decree of the S. Rit. C, certifying that this edition is a
typical one and that editors must conform their editions
to it.
Editors, after issuing a typical edition, must send two
copies thereof to the S. Rit. C, in whose archives they
are preser\'ed.
3. Any publisher may, with the consent and approval
of the Ordinary, print editions called iuxta typicas, pro-
vided they agree perfectly with the typical edition. To
make sure of this the Ordinaries shall appoint a revisor
or censor, who shall carefully compare each edition with
the typica and grant the imprimatur only after it is found
a faithful copy thereof.
4. If there is no typical edition of the propria Mis-
sarum or Officiorum of a diocese, the local Ordinary in
whose diocese they are printed, shall declare them con-
formable to the original and give the imprimatur. As to
the propria of a strange diocese, and those of religious
orders and congregations, the local Ordinaries to whose
jurisdiction the editors (typographi) belong, shall give the
imprimatur, after the Ordinary of the strange diocese or
the religious superior to whom the propria pertain, shall
have declared that the edition is conformable to the orig-
inal.
The rules for publishers of typical editions as well as
>Ic
k .,1,., Original fro m
UNIVERSITY OF WISCONSIN
i 92
ADMINISTRATIVE LAW
reprints of liturgical books are laid down in the Consti-
tutions of Pius V, Clement VIII, and Urban VIII, which
are contained in the preface to ever}' Roman Breviary.
These rules must be accurately followed even as to punc-
tuation, grammatical rules, position and sequence of
hymns, chapters, and so forth.15
Manuals of sisterhoods which are used for the inves-
titure of novices and for making the religious profession
must be approved by the Holy See, or at least by the
Ordinary.18 The formula of profession must be con-
tained in the Constitutions.
■
communicatio in sacris
Can. 1258
§ 1. Haud licitum est fidelibus quovis modo active
assistere seu partem habere in sacris acatholicorum.
§ 2. Tolerari potest praesentia passiva seu materia-
lis, civilis officii vel honoris causa, ob gravem rationern
ab Episcopo in casu dubii probandam, in acatholicorum
funeribus, nuptiis similibusque soilemniis, dummodo
perversionis et scandali periculum absit
It is unlawful for Catholics to assist actively in any
way at, or to take part in, the religious services of non-
Catholics. A passive or merely material presence may
be tolerated, for reasons of civil duty or honor, at fu-
nerals, weddings, and similar celebrations, provided no
danger of perversion or scandal arises from this assist-
ance. In doubtful cases the reason for assisting must
be grave, and recognized as such by the bishop.
is S. Kit. C, April 26, 1834; changed Ps. 19: Exoudiat te Do-
March 11, 1871 (nn. J716, 3241). minus in dig professionxs," instead
10 S. Rlt. C, Sept. 12, 1B57, ad of tribulationis ; in the Libera the/
XVI (n. 3"5ol — 'which prove* the sang: "Tremens facta sum."
necessity of uniformity; the Sisters
oogle
Original fro ni
UNIVERSITY OF WI5C0NSI
CANON 1258 193
This is the so-called communicatio in sacris activa cum
acatholicis. The reason why the Church has always for-
bidden such participation in the religious services of non-
Catholics is the intimate conviction that she herself is the
only true Church of Christ. Secondary reasons for this
prohibition are: the quasi-approbation of non-Catholic
worship which lies in a Catholic's participation therein
and which at the same time is an external profession of
faith. The other reason is scandal, which may be given
to Catholics who see the mixture of worship and the
deference paid to non-Catholic ministers and functions.
Finally there is the danger of perversion, or of gradually
increasing religious indifference when the faithful freely
and indiscriminately participate in heretical religious serv-
ices. Even the simulation of false religion is incompat-
ible with the purity of the Catholic faith." Hence:
(a) The Sacrament of Baptism can never be lawfully
received from a non-Catholic minister; nor is it allowed
to offer a child for baptism to such a minister, evert if
the child was first baptized by a Catholic minister and the
heretical ceremony is admitted in order to avoid a fine.18
Neither are Catholics allowed to assist as sponsors, either
personally or by proxy, at a baptism conferred by a non-
Catholic minister.19
(b) Confirmation may not be administered to such as
arc compelled by a non-Catholic parent to assist at hereti-
cal services.20
(c) The Holy ^Eucharist may not be received at the
hands or in the temples of non-Catholics, nor are Cath-
olics allowed to assist at the Mass of schismatics; if they
17 S. O., Aug. 28, 1780; S. C. P. . "S. 0,t May 10, 1770; Jan. 3,
P.. 17*9 (Coll., nn. 346. 3"). 187' (nn. 478, 136s).
18 S. O., Sept. 26, 1668; Nov. 99. 20 S. (). Auk. 28. 1780 (ibid., a.
167a (ibid., nn. 169, 205). 546).
ogle
k .J,, Original fro ni
UNIVERSITY OF WISCONSIN
94
ADMINISTRATIVE LAW
-
have no church of their own, they are not bound to hear
Mass on the days prescribed.21 Concerning the visiting
of churches of non-Catholics, the Holy Office has decided
as follows: Catholics may enter non-Catholic temples
merely from curiosity, without participating in the serv-
ices and provided they have no evil intention. An evil
intention would exist if a Catholic would visit a Protes-
tant church for the purpose of assisting at a religious
function, or of participating in sa-cris. or if the govern-
ment had commanded such visits as a sign of religious
indifference, or if the public would regard such a visit as
a sign of an interior conviction that there is no distinc-
tion between Catholics and non-Catholics.22 To the point
is another decision of the same Holy Office regarding
former conditions in schismatical Russia, where officials
compelled pupils to assist at schismatical functions.
Their assistance was declared an unlawful participatio in
sacris, which teachers of religion cannot tolerate in si-
lence. Therefore they must warn the children and par-
ents of the wrong, and only in case of their being in good
faith may they omit a second warning, and grant them
absolution, provided always that there is no scandal.28
(d) Confession may be made to a heretical or schis-
matic minister only when there is danger of death, pro-
vided that no scandal be given, that no other priest be
present, that there be no danger of perversion, and that
the non-Catholic administer the sacrament in valid form,
ft. e.t secundum ritus Ecclesiac.*4
(e) Under no conditions is it permitted to receive holy
orders from a non-Catholic minister."
21 S. O., Dec. 5. 1668 (n. 171).
22 S. O., Jan. 13, 1818 (ib., n. 787,
ad a).
ass. O., April j6, 1894 <•*•- »•
1868)-
24 S. 0., July 7, 1864, ad 6 (n.
25 S. O., Not. ai, 1709 (n. 278):
"Alias sunt trrtgularet ft sut-
peusi " ; suspension is stated in can.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 1258 195
(f) Concerning marriage enough has been said under
can. io6\.
(g) An oath imposed by the government may be ad-
ministered by a non-Catholic minister and be taken by
Catholics if said minister acts merely as an official and
wears no stole or insignia of his creed.26
(h) Here an instruction27 of practical value, not so
much in our country, as in countries where the govern-
ment compels officials and also bishops to assist at reli-
gious ceremonies conducted by non-Catholics, or to hold
services in Catholic churches. It is never allowed for
any bishop to go to a schismatical church to take part in
the sacred functions or to chant the doxology. Govern-
ment officials are not to be disturbed if they go to these
churches, provided no Mass is said, and they take no part
in the doxology. Catholic bishops if invited by the
governor to have a celebration in the Catholic churches
shall content themselves with singing the " Te Deum"
and holding benediction of the Blessed Sacrament. This
may be done with the intention of praying for the spir-
itual and temporal welfare of people and ruler. But
the bishops shall abstain from Pontificals or singing Mass,
lest the non-Catholic civil authorities should assist and
incense and the " pax " should have to be offered them,
which is by no means allowed.
§ 2 permits a passive or merely material assist-
—
3373, and irregularity follows sua- other occasion (for British India)
pension if can. 985, n. 7 Is verified. the S. C. P. F. asked that the cccle-
2H S. 0-, April 1, 1857 (n. njj). siastical authorities should demand
In the province of Quebec (Canada) freedom to swear on the Catholic
Protettant bibles were used in admin* Bible, but as long as this could not
istering oaths; only the clergy were be obtained, they should keep silent;
permitted to give oath by holding the Sept. 8, 1869 {Coll., on. 7J9. '3-*'') i
hand to the breast. The Holy Office somewhat different S-ihctti- Barrett,
declared that the faithful should not Thcol, MoraL, ed. 27a, pp. aa6 f.
be disturbed; Feb. 23, 1820. On an- 27 S. <».. May 12, 1841 (n. 921).
§le
/*-»-. -J,-. Original from
UNIVERSITY OF WISCONSIN
196 ADMINISTRATIVE LAW
ance at funerals, weddings and similar festivals. What
does that assistance involve or admit? Concerning
funerals the decisions are quite distinct. No religious act
or ritual participation is permitted. Hence Catholics are
not supposed to recite puhlic prayers or carry torches or
candles, etc., for the souls of deceased non-Catholics.28
At weddings there is hardly more than a mere passive as-
sistance, even for witnesses.80 In Japan and other pagan
countries, where at funerals the pagan priests are first
called in to perform their rites, the faithful must abstain
from any participation in these ceremonies, but may bury
their dead according to their own ritual.30
Civilis officii vel honoris causa means civil duty or re-
spect due to the dead or to the person who is the object of
the ceremony at a wedding or similar festivity, for in-
stance, the birthday of a ruler's son or a thanksgiving cele-
bration. When a non-Catholic ruler dies, the clergy may
assist in a body, outside the church, at the funeral proces-
sion, but without sacred vestments, i, e.t without stole
and surplice, although in cassock, when no scandal
is given or when it may be removed.31 At the corona-
tion of King Edward VII his Catholic subjects were al-
lowed to enter Westminster Abbey because of the personal
presence of the King, but in India Catholics were not per-
mitted to enter the temples of non-Catholics because the
King was not present. Besides, Catholics were permitted
to sing the Te Deum, but not the solemn Mass,82 in their
own churches. If a non-Catholic relative or a good
friend of a Catholic pastor dies, is the latter allowed to
assist at the funeral? He may do so, but is not allowed
28 S. O.. Jan. 13, 1818; June 30, 80S. O., March 11, 1868 (n.
July 7. 1864 (Coll. P. F., nn. 727; 13J8).
13$7 ad >)• ai S. O., Aug. 1. 1900 (n. 2089).
3»S. O., June 22, 1859 <n. 1176). 32 S. C P. F., April 25, 1902 (n.
2136).
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1258 197
to wear the insignia, i. e.t surplice and stole, and must take
no active part in the ceremonies of the non-Catholic rite.35
Difficulties may arise concerning cooperation in the
divine services of Catholics who are employed by non-
Catholics as singers or organists. Although we could find
no specific decision with regard to Catholic singers at non-
Catholic services, it is evident that the Church cannot
tolerate such a formal cooperation, for to that it would
certainly amount. Besides, if it is forbidden for a Cath-
olic to play the organ at non-Catholic services — which
has been formally decided 84 — it naturally follows that
Catholics may not sing at such functions. The Church
has been more lenient lately with regard to admitting non-
Catholics as singers and organists at Catholic services.
Thus, in 1889, the Holy Office wished the abuse to be
eliminated as soon as possible, in 1906 it made a conces-
sion for Bulgaria, in favor of sisterhoods whose non-
Catholic pupils were admitted to sing in their chapels."
The present canon only forbids active assistance at, or
participation in, the religious services of non-Catholics.
Therefore those who contribute to the building of non-
Catholic churches or help to erect them as architects, con-
tractors, or workingmen are not concerned here. The
Holy Office " has indeed declared that no such contribu-
tions are allowed, but at the same time urged that those
who build synagogues and heretical temples are not to be
~
33 S. 0., May 8, 1889(0.1705). as S. O., May r, 1889; Jan. 24,
a*S. C. P. F., July 8, 1889 tn. 1906 (Coil. P. F., n. 1703, M*7>-
171 j): " Cvm ibi falsum eultum S* S. O., June 30, July 7, 1864. »d
exercent." Exception might be 8-10 (ib., n. 1237). Stricter is the
made for school exercises or purely instruction of the Card. Vic. Vrbis,
civil celebrations held in non-Catho- of July 12, 1878; but this concemi
lie churebei, provided they hove no Rome only and cannot be general-
religiou* feature attached: for in ized. because conditions are differ-
that case there would be no " exer- cnt elsewhere.
ctse of false worship."
jle
,1,., Original fro m
UNIVERSITY OF WISCONSIN
"-
198 ADMINISTRATIVE LAW
disquieted, provided such edifices are not erected to spite
or provoke Catholics. But, as stated, even contributions
are not excluded by our canon. Besides it would be al-
most impossible, in our country at least, to carry such a
prohibition into effect. Business men especially cannot be
expected to ignore or offend their non-Calliolic patrons.
APPROBATION OF DEVOTIONS AND LITANIES
Can. 1259
§ 1. Orationes et pictatis cxercitia ne permittantur
in ecclesiis vel oratoriis sine revisione et expressa Or-
dinarii loci licentia, qui in casibus difficilioribus rem
totam Sedi Apostolicae subiiciat.
§ 2. Loci Ordinarius nequit novas litanias appro-
bare publice recitandas.
Prayers and devotions are not to be permitted in
churches and oratories without previous revision by, and
express permission of, the local Ordinary, who shall re-
port more difficult cases to the Apostolic See. The local
Ordinaries cannot approve new litanies which are to be
publicly recited. A bishop must and may revise all kinds
of devotions, and if there is doubt whether the prayers
or invocations comply with the dogmatic and traditional
requirements, he shall refer the matter to the Holy
Office,87 which, if merely ritual doubts exist, shall report
to the S. Congregation of Rites. Concerning litanies, first
and above all, no nczo ones are allowed. Only those may
be recited publicly which are contained in the Breviary
or in the new edition of the Roman Ritual, approved by
the Holy See.8S
87 The veneration of the Holy special picture! are preferred: S. O,.
Face of our Saviour is given to the Mar 4. '39-= <n. 1792).
traditional representation, and no 38 S. Rit. C, March 6, 1894 iOtc.
§le
Original from
UNIVERSITY OF WISCONSIN
;
CANON 1259 199
To these approved litanies no additions can lawfully be
made. Thus neither new M Saints," even though they be
titular or patron saints, nor versicles or other prayers not
contained in said additions are to be added.80 Religious
are allowed to add the name of the founder or patriarch,
but the name of no other Saint of their order or congre-
gation.40 Nor is the addition of special invocations al-
lowed in the litany of the Blessed Virgin.41 Neither is
the name of any saint or invocation, as contained in the
approved editions to be omitted in the recitation.4* Even
quasi-invocations recited in the form of a Litany are
forbidden."
§ 2 of our canon says : publice recitandas, to be recited
publicly. This term was, especially after the decree of
March 6, 1894, made the object of doubts, which were
dispersed by the S. Congregation. Thus it would be a
public recitation if several of the faithful would gather
in a church or public oratory to recite together a litany,
although the minister of the Church would assist only as
a private person, not as a minister. Thus to recite a non-
approved litany is, therefore, forbidden.*4 Neither are
Sisters or nuns allowed to recite such litanies in common
in their choir, even though this be separated from the
church by a grate.45 Single religious may recite or chant
.!:<;.'.., n. 3820); no litany of St. An- Hum christumarum (S, Rit. C, Sept.
thony, or of the Holy Family, or of 15. 1815): Rcgina SSmi Roiarit
La Salette has 10 far been approved; (Dec. 10, 1883, an. 2566, 3598); R#-
S. Rit. C, Jan. 29, 1656; Feb. 11, gina ptcis (May 5, 1917).
1898; May 12, 1877 1 :'■:./., nil. 995, «S. Rit C, Sept. 11, 1847 n. 1
3980, 3419). (n. 3956).
80S. Rit. Ch March 8, 1631: May 48 S. Rit C, Auk. 24. 1880 (n.
31, 1821, ad. 7 <nn. 562, 2613). 3523).
40 S. Rit C.f June 16, 1674; Feb. 44 S. Rit. C, June i, 1896 (n.
II, 1702; Aug. a, 1631 (no. 1518, 39*&).
2093. 57*)- 4S S. Rit C, June 20, 1896 (ok
41 S. Rit. C, Aug. 2, 1631 fn. 39*7).
576); additions approved are: auxi-
.'le
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
2O0 ADMINISTRATIVE LAW
such litanies for their private devotion, but not in com-
mon.48
The approved litanies are: the Litany of All Saints,
according to the general tenor and the formula for the
Forty Hours' Devotion ; the Litany of the Holy Name of
Jesus"; the Litany of the Sacred Heart, approved April
2, 1899; the Litany of the Blessed Virgin Mary, known
as that of Loreto ; the Litany of St. Joseph, and the Litany
for the Dying (i» ordine comtncndationis animae).
INDEPENDENCE FROM SECULAR INTERFERENCE
Can. 1260
Ecclesiae ministri in cultu exercendo unice a Su-
perioribus ecclesiasticis dependere debent.
This canon is a well deserved rebuke of the arrogant
bearing of the regalists. as well as of the modern op-
pressors of ecclesiastical liberty in matters of divine wor-
ship. Benedict XIV, although prone to make conces-
sions, admonished the hierarchy of his lime never to
allow the lay power to command public prayers to be said
for them, either as a thanksgiving or in case of necessity.
And he exhorted the bishops to speak like Hosius of
Corduba to the emperor Constantius: " Do not interfere
in things ecclesiastical, nor command in that kind ; but
rather learn from us. God gave you the reins of govern-
ment, but to us He has entrusted what pertains to the
Church." 48 The government may ask, but not command.
Neither are pastors allowed simply to comply with the
««S. Rit C, Feb. 11, 1898 (a. asetnsionem tuam "; S. Rit C, Feb.
3981). 8, 1905 (n. 4153).
Al With the addition: "Per « " Qttrmodmodum," Much aj,
SSmae Eucharistiae institution cm 1743-
tuam libera not, Jesu," after " Per
oogle
k .,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1261 201
arrogant edicts of an ignorant board of health, or city
council, or mayor, or governor, or even president.
Everything must be done through the proper channels.
The hierarchy shall comply with the reasonable wishes of
the public or civil authorities. Authority to decide
whether and what kind of prayers arc to be said, belongs
to those who are ordained in the things that appertain to
God, to offer gifts and sacrifices.4* Pius X had to com-
plain of Portugal, the so-called republic, which severed
the tie that connected it with the Church. How iniqui-
tous was the law concerning the ** associations of cult " is
evident, for it entrusted the whole care of divine worship
to associations of laymen, from which clergymen were rig-
idly excluded.50 There are two societies, the spiritual and
the temporal, with entirely different spheres, rights, and
claims. What is purely spiritual, as divine worship, ap-
pertains solely to the society set up for religious purposes.
~
duty of the ordinary
Can. 1261
§ I. Locorum Ordinarii advigilent ut sacrorum ca-
nonum praescripta dc divino cultu sedulo observentur,
et praescrtim nc in culturn divinum sive publicum sivc
privatum aut in quotidianam fidelium vitam supersti-
tiosa ulla praxis inducatur, aut quidquam admittatur
a fide alienum vel ab ecclesiastica traditione absonum
vel turpis quaestus speciem praeseferens.
§ a. Si loci Ordinarius leges pro suo territorio hac in
re tulerit, ctiam religiosi omnes, exernpti quoque, obli-
gatione tenentur easdem servandi ; et Ordinarius pOt-
It H«b. 5. 1.
SO " Jamdudum," Miy »4, 191 1 (A. Ap. S., Ill, 319).
>Ic
£ " ^ , ^i,^ Original fro ni
UNIVERSITY OF WISCONSIN
202
ADMINISTRATIVE LAW
est eorundem ecclesias vel publica oratoria in hunc
fincm visitarc.
The local Ordinaries should carefully see to it (i) that
the regulations laid down in the sacred canons on divine
worship are properly observed; especially (2) that no
superstitious practices be introduced into the public or
private divine worship or into the daily life of the faith-
ful ; (3) that nothing be admitted which is contrary to
faith or ecclesiastical tradition, or which savors of shame-
ful money-making.
The remark concerning superstitious practices is in-
tended especially for missionary countries, as is manifest
from the fact that most of the papal Constitutions 0I as
well as the decisions of the Roman Congregations ad-
duced here have in view the aforesaid countries. " Su-
perstition," says St. Thomas," " is a vice opposed to reli-
gion by excess, not as if it would offer more worship to
God, but because it offers worship to those to whom it is
not due, or in an unlawful manner." This is the case
with ancestor worship " in China and other superstitious
practices mentioned in the Constitution of Benedict XIV,
"Omnium sollictiudimm" Sept. 12, 1744. There is al-
ways danger that missionaries will connive at such prac-
tices in order to swell the number of converts. The es-
sence of all these practices is formal and willful coopera-
tion in idolatry. The faithful may be present when the
pagans perform their rites for the dead, provided they
take no active part in them and protest as much as they
can.64 They may eat of the food prepared for idols if it
is dished up with other foods, and the banquet takes place
Bl Cfr. Coll P. F., nn. 347, 349-
aiSumma TheoL, II— II, q. 9*.
act. 1.
S3 S. C. P. F., Jan. 14, 1753 <»•
386).
D4 S. O., March 33, 1656 {ibid.,
n. ia6).
>Ie
Original from
UNIVERSITY OF WI5C0NSI
CANON 1261 203
far away from any pagan place of worship.56 But they
are not allowed to assist at the meals of gentiles prepared
in commemoration of the dead.56 Catholics may sell
chickens, eggs, plots for cemeteries, etc., provided the sale
is not strictly and knowingly made for superstitious pur-
poses or with superstitious rites.67 But they are not al-
lowed to contribute to, or aid in, the building of pagan
temples, even though they protest against compulsion and
comply in order to avoid persecution."
But pagan countries are not the only ones which are in
danger of superstitious practices. There are so-called
pious superstitions even in Christian communities. Thus
CI
it is irreverent, to say the least, and unbecoming, to throw
relics of the true Cross, or other relics, even if included
in a reliquary, into the river, or to moisten them, in order
to obtain rain.59 New and non-approved devotions are
the cult of the heart of St. Joseph and the veneration of
the B. V. Mary under the title of the Cross.80
Omitting other silly practices,61 which abound among
Southern people more than in the sober North, we must
mention Spiritism. It would be disastrous to regard this
serious menace as a joke. Newspapers, magazines, and
books are now making a regular propaganda for the
dangerous new sect. Hence the Holy Office has justly
eft
forbidden Catholics to assist at spiritistic seances, whether
with or without a medium or the use of hypnotism, even
though the sittings have an honest purpose or bear the
semblance of piety, no matter whether the souls or spirits
61 S. O., Dec. is, 1768 (n. 470). 12, 1769 {Die. Auth., nn. 369, 2486).
~
6« S. C. P. F., Jan. 14, 1753 (°- 60 S. Kit C, June 14, 1873; Feb.
386). 2.3, 1894 Obid., on. 3304, 3818).
67 S. C. P. P., Jan. 21, 1778; fll S. O.. Aug. 3. '0°J (Coll. P.
April 5, 1785 (nn. 526, 57s). F.( n. 3173): to dissolve paper pic-
es S. O., Sept. 5, 1736 fn. 320). tures of the B. V. Mary in water or
69 S. Rit. C. Jan. 16, 161 9; Sept. form them into pills to obtain health.
r Google .
£ " ^ , -As* Original from
UNIVERSITY OF WISCONSIN
acH ADMINISTRATIVE LAW
of the dead are invoked or whether the answers are sim-
ply heard, or even if the parties simply look on and pro-
test either tacitly or explicitly that they will have nothing
to do with evil spirits.62 Fortune telling and clairvoyance
are also strictly forhidden.
§ 2 obliges religious, no matter how exempt they may
be, to abide by the laws which the local Ordinary makes
for his territory. The same Ordinary is entitled to visit
their churches and public oratories for the purpose of
this canon. We have here an old law, enforced by the
Council of Trent,63 and no appeal is permissible.04
SEPARATE SEATS FOR MEN AND WOMEN IN CHURCH
CL
Can. 1262
§ z. Optandum ut, congrucnter antiquac disciplinae,
mulieres in ecclesia separatae sint a viris.
§ 2. Viri in ecclesia vel extra ecclesiam, dum sacris
ritibus assistant, nudo capite sint, nisi aliud ferant pro-
bat i populorum mores aut peculiaria rerum adiuncta;
mulieres autem, capite cooperto et modeste vestitae,
rnaxime quum ad niensam Dominicam acccdunt.
§ I. Conformable to ancient discipline, it is desirable
that the women should be separated from the men in
church. The very division of the ancient basilica singled
out the vestibule for the penitents ; the catechumens were
usually admitted to the rear of the nave ; the faithful occu-
pied the side aisles, the men on the right side of the en-
trance, the women on the left. Those who were held in
ttS. O., April 24. 1917 (A. Ap. «3 Scm. 21, c. 8 it rrf.; km. 22
S., XX. 268) ; for further literature de obstrv. et cvtt.
■ce Eaupert, Tht Ne*> Black Magic, ** Benedict XIV, "Ad mMtamtix,"
1910; Liljcncrants. Spiritism and March 30, 1742, | 6.
Religion, 1918.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 1262 205
special honor by the congregation, as widows and virgins,
and those who, on account of age or social position, were
entitled to peculiar regard, had their place in the forward
end of the aisles or in the transept. The different orders
of the clergy were in turn distinguished, the bishop had his
seat in the middle of the apsidal circle, while the presby-
ters were seated on either side of him, but at a lower level,
the deacons stood near the altar and the inferior clergy
had their place with the choir in the nave." In this coun-
try it will, we fear, be difficult to carry out this "desire"
of the Church, on account of our custom of family pews.
§ 2. The men should assist at sacred functions, either
in or outside of the church, with their heads uncovered,
unless a reasonable national custom or special circum-
stances justify a departure from this rule. The women,
on the other hand, should cover their heads and be
dressed modestly, especially when they approach the
Lords table.
Those especially who, like our trustees, carry the can-
opy over the Blessed Sacrament, or reliquaries, or sacred
statues, should walk bareheaded.8*
In China the wearing of a cap or hat is a sign of respect
and honor, and therefore the Church does not insist upon
this disciplinary rule there.01 An old-fashioned blizzard
a
on the prairies may constitute a " special circumstance,"
justifying the wearing of a warm cap in church. The
rule that women should cover their heads is doubtless
taken from St. Paul's Epistle."8 It applies whenever they
attend sacred functions, even from a window which sepa-
rates them from the place of worship.08 Concerning
«o Lowric, Monuments of thg or S. C V. T,, Oct. 18, 1S83, no.
Early Church, 1901, p. 10s f. XV f. (Coll., n. 1606).
MS. Kit. C.t Sept. 25, 16S8; June «s 1 Cor. n, 4 ff.
18, 1689; Sept. a, 1690 (nn. 1800, eB S. Rit. C, July 7, 1876, ad IV.
1810, 1841).
>le
£ " ^ ^ J,„ Original from
UNIVERSITY OF WISCONSIN
206 ADMINISTRATIVE LAW
decency of dress nothing need be said, since the general
rules of Christian modesty suffice.
■■
s
distinguished seats in church
Can. 1263
§ 1. Potest magistratibus, pro eorum dignitate ct
gradu, locus in ecclesia esse distinctus, ad normam
legum liturgicarum.
§ 2. Sine expresso Ordinarii loci consensu nemo
fidelis locum habeat in ecclesia sibi suisque reserva-
tum; Ordinarius autem consensum ne praebeat, nisi
ceterorum ndelium commoditati sit sufBcienter con-
sultum.
§ 3. Ea semper factis in concessionibus inest tacita
conditio, ut Ordinarius possit, ex iusta causa, concessi-
onem revocare, non obstante quolibet temporis do
cursu.
§ 1. A distinguished place or seat in the church may
be reserved for the civil magistrates, according to their
dignity and rank. However, the liturgical laws must
never be disregarded. These laws are summed up in the
Ctpremnniale Episcoporum.70 There we read that the
seats reserved for nobles and illustrious laymen, magis-
trates and princes, no matter whether of the highest or the
lowest rank, should be placed outside the sanctuary or
presbytery. Some princes and governors were very arro-
gant in this matter, and some bishops too lenient. The
S. Congregation of Rites has always referred to the Ca*re-
moniale. Princes, magistrates, etc., may have a prcdclla
or kneeling bench and a special seat covered with a tapes-
try or upholstered, but always outside the choir or sanc-
70 Ub. I, c. XIII. b. 13 (ed. PtiBtet, 1886, p. 58).
>ogle
£ * ^ 4 ,l,» Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1263 207
tuary, and no canopy is allowed.71 They may also, in
their proper place, be given the "pax cum instrument 0 "
and two swings of the censer, but these must not be of-
fered by the minister of the Holy Sacrifice, but by a chap-
Iain dressed in surplice.72 If the magistrates wish to have
a seat and kneeling bench in the choir, they must obtain a
special papal indult." A concordat not ratified by the
Holy See can not confer this privilege.74 It is an intoler-
able abuse for laymen to occupy the choir stalls of the
canons during divine service.76 All these laws must be
observed also by exempt religious, and should they dare to
violate them, the bishop may proceed against them by
censures.79
§ 2. No Catholic may, without the express consent of
the diocesan Ordinary, have a seat reserved for hitnself
and his family in church, and the Ordinary shall not give
his consent unless he is certain that the rest of the faith-
ful can be conveniently seated. This, of course, does not
mean that the renting of pews is forbidden. For the
source whence this law is taken, speaks of a citizen who
occupies two, or three, or more pews (scamna), while
others have to stand. This decision gives the bishop the
right to see to it that such unqualified disregard for the
rights of others is preveuted." From this it is clear that
pastors need not worry about the lawfulness of pew-rent,
which is common in our country, but they should see to it
that all the faithful are conveniently seated.
§ 3. All these concessions contain the tacit condition
~
715. Kit. C-, May 23. 1639; Dec 7B S. Kit C, Feb. 21, 1604 <n.
15, 1640 {Dee. Auth., nn. 680, 736). »S7).
72 S. Rit C, Jan. 15. 1661 (n. 76 S. Rit C, March 13. 1688;
1:87). April 22, 1690 (nn. 179a, 1831).
73 S. Rit C, July 8 and 18, 165* 77 S. Rit C, Dec n, 1604 (n.
(n. 959 f.). 174).
74 S. Rit. C, March ta, 1689 <n.
1808).
oogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
2o8 ADMINISTRATIVE LAW
that the Ordinary tnay revoke them for a just cause and
that no prescription confers a permanent right. For lay-
men, even by paying pew-rent for a number of years,
acquire no personal right to pews or seats.18
Conformable to this canon are most statute laws of this
country. Pew rights are all u a matter of bargain, and
entirely conventional between the trustees and those indi-
viduals who wish to become hearers or members of the
society and to have seats in the church." 7B The pew-
holder's rights are not absolute, but subordinate to, and
limited by, the superior rights of the owner of the build-
ing, and may even be affected by by-laws passed after he
has acquired his right. It follows that the civil courts
cannot decide otherwise than according to the church
law.
church music
Can. 1264
§ 1. Musicae in quibus sive organo aliisve instru-
mentis sive cantu lascivum aut impurum aliquid mis-
ceatur, ab ecclesiis omnino arceantur; et leges liturgi-
cae circa musicam sacram serventur.
§ 2. Religiosae mulieres, si eisdem liceat, ad nor-
mam suarum constitutionum vel legum liturgicarum
ac de venia Ordinarii loci, in propria ecclesia aut ora-
torio publico canere, tali e loco canant, ubi a populo
conspici nequeant.
§ 1. All kinds of lascivious or impure music, whether
accompanied by the organ or other instruments, or ren-
dered vocally, must be entirely eliminated from the
78 S. Kit- C, Nov. 22, 164a (n. T» Cfr. Zollmann, American Civil
816). Church Law, 1917, p. 414 ff.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 1264 209
churches ; and the liturgical laws concerning sacred music
must be observed.
This is a repetition of an enactment of the Council of
Trent s0 as well as of later papal constitutions. It is not
within the sphere of a canonist to dwell upon the devel-
opment of Church music, much less upon the finer tt nu-
ances " between the different kinds of music, Gregorian "
or Plain Chant and polyphonic renderings. Suffice it to
say that the Church has never condemned Polyphony,
which began to come into being in the fourteenth century,
when the Plain Chant commenced to decline."
What is menat by lascivious and impure music ? Ac-
cording to a decree of Alexander VII, of April 23, 1657,
it signifies music which suggests the dance or profane
rather than ecclesiastical ideas." Benedict XIV com-
plains that what is lawfully permitted to be sung is often
treated theatrically and operatically, like a stage play."
The same Constitution permits the following musical in-
struments : violoncello and double bass, bassoon, viola and
violins; but excludes drums, hunting horns, trumpets,
oboes,88 flutes and picolos, piano, mandolins and such like,
which savor of the theatre. Instruments are allowed only
to strengthen the voice parts, so as to lead the mind more
forcibly to the contemplation of divine things and the love
it
of God. Finally, the sensuous and improper qualities of
church music are negatively described in the well known
" Motu propria" of Pius X, Nov. 22, 1903. There the
80Sess. 22, de observ. el evit. H " Annus qui," Feb. 19, 17491 I
81 We leave the question open aa 2 fl.
to whether St. Gregory the Great 85 However, oboes and elarinettea
may fully claim the title of "Father are moderately permitted; S. Rit. C,
of the Plain Chant "; — adhuc sub- Nov. 13, 1908 (Dec. Auth,, n. 4226);
indue lis est. not allowed are chimes or peals to-
ft* Cfr. R. R. Terry, Catholic gether with the organ for liturgical
Church Music. London, 1907. P- SS- service: S. Rit. C, May 18, 1917
83 Terry, /. c, p. ai. LA. Ap. S., IX, 352).
~
jle
C* -» v ,|„ Original from
UNIVERSITY OF WISCONSIN
210 ADMINISTRATIVE LAW
great restorer of Christian ideals says:* " Nothing, there-
fore, should have place in the temple that is calculated to
disturb, or even merely to diminish, the piety and devotion
of the faithful ; nothing that may give reasonable cause
for disgust or scandal ; nothing, above all, which directly
offends the decorum and the sanctity of the sacred func-
tions, and is thus unworthy of the House of Prayer and
the Majesty of God." "
Church music must be sacred music, and therefore ex-
clude all profanity, not only in itself, but in the manner in
which it is presented.87 The whale instruction is note-
worthy. We cull from it one more sentence (n. 22) :
" It is not lawful to keep the priest at the altar waiting on
account of the chant or the music for a length of time not
allowed by the liturgy."
The typical Vatican edition of the Graduate was ap-
-
proved Aug. 7, 1907, and all editors have to conform to
that edition.88 This edition must be used in the churches
exclusively, even to the exclusion of the Medictea.80 Va-
rious other decrees were issued to give weight to the
Motu proprio of Pius X. The quintessence of these is
that the Vatican edition of the Graduate Romanutn is the
typical one, with which all others must agree, since the
rhythmic signs (signa rythmica) are fully contained in
said edition.00 Other editions which, though accurately
presenting the melodies of the Vaticana, have special
rhythmic signs appended by private authority, may be
used as subsidiary aids by the singers, and for these the
-,
MDee. Auth., n. 4131; Terry, /. »o S. Rit. C. Jan. 25. »9» ("•
C, p. 9. 4259): the Vatican edition represents
*7 Terry. /. r.. p. ia. the siffns, although not especially
88 Dec. Auth., n. 4203, see also printed, by the distance of the
nn. 4166, 416S, 4229. neums, and thus indicates what is
89 S. Rit. C, April 8, 1908 (n. called the mora vocit.
k ,1,., Original fro nn
UNIVERSITY OF WISCONSIN
>gle
CANON 1264 211
Ordinaries may give their imprimatur, provided the other
rules laid down in the decrees referring to Plain Chant
are complied with.91 In 1912 was approved the Anti-
phonale Diurnum Sacrosanctae Ecclesiae Romano* and
edited by the Vatican Press the same year. To this also
the liturgical rules and decrees referring to the Gradual
must be applied.02
§ 2. Religious zvomen, if their Constitutions or the
liturgical laws and the local Ordinary permit them to do
so, may sing in their own church or public oratory, but
only in a place where they cannot be seen by the public.
It is hardly probable that nuns will again sing together
with canons and monks, as was the case at the time of
Innocent II, who complained " of this abuse, but certain
regulations have been made concerning women singers in
church choirs, which must be applied with discretion.
Thus congregational singing by all the people, who thus
take, as it were, the place of the choir (sckola cantorum),
does not exclude women and girls, provided they occupy
a place distinct from that of the men, as far as possible.0*
Sisters or nuns are not supposed to mix with the congre-
gation, but if they sing with the children entrusted to their
care, there can be no reasonable objection to the practice.
However, since mixed choirs, i. e., choirs composed of
men and women, have not found favor with the S. Con-
gregation,95 it is perhaps not too much to say that Sisters
should not take part in such choir singing. .
Besides, according to the Instruction of Nov. 22, 1903,
~
»i S. Rit C, April if, 1911 (11. 01 5. Kit. C, Jan. 17, 1908, ad II
4^63); June 23. »9*7 M- ^P- S"„ (n. 4*16).
IX, 496 f.V These private editions 05 S. Rit. C, Dec. 18. 1008 (n.
"-.
are generally printed in modern no- 4231). We notice that Card. Gas-
tattoo, parri has not quoted the two deci-
02S. Kit. C, Dec. 8, 1912 (/f. sions just mentioned. Is it perhaps
Ap. S., IV, 737). because they arc impossible of exe-
93 Cfr. c. 25, 9 1, C 18, q. a. culion?
oogle
Y ,1,., Original from
UNIVERSITY OF WISCONSIN
D
"-
212 ADMINISTRATIVE LAW
n. 12-13, since the singers in church take the place of the
ecclesiastical choir/ women cannot be admitted to form
part of the choir or of the musical chapel. Their place
should be taken by boys, provided of course this regula-
tion can be carried into effect. It takes time to train men
and boys and to fill up the gaps caused by the dismissal of
women. Some of our country churches would be as
silent as a grave without the voices of women singers.
>Ie
I , Original fro ni
UNIVERSITY OF WISCONSIN
~
TITLE XV
RESERVATION AND WORSHIP OF THE
BLESSED SACRAMENT
Can. 1265
§ 1. Sanctissima Eucharistia, dummodo adsit qui
*ii!3 curam habcat ct regulariter saccrdos seme! saltern
in hebdomada Missam in sacro loco celebret :
i.° Custodiri debet in ecclesia cathedrali, in ecclesia
principe Abbatiae vel Praelaturae nulllus, Vicariatus
et Praefccturae Apostolicae, in qualibet ecclesia paroe-
ciali vel quasi-paroeciali et in ecclesia adnexa domui
religiosorum exemptorum sive virorum sivc mulierum ;
2.0 Custodiri potest, de licentia Ordinarii loci, in ec-
clesia collegiata ct in oratorio principali sive publico
sive semi-publico turn domus piae aut religiosae, turn
collegii ecclesiastici quod a clericis saecularibus vel a
religiosis regatur.
§ 2. Ut in aliis ecclesiis seu oratoriis custodiri pos-
sit, necessarium est indultum apostolicum ; loci Ordi-
narius hanc licentiam concedere potest tantummodo
ecclesiae aut oratorio publico ex iusta causa et per
modum actus.
■
§ 3. Nemini licet sanctissimam Eucharistiam apud
se retinere aut secum in itinere deferre.
Provided there is a guard, and provided a priest says
Mass regularly at least once a week in the sacred place :
ogle
V * ^ v J„ Original fro ni
UNIVERSITY OF WISCONSIN
214 ADMINISTRATIVE LAW
l.° The Holy Eucharist must be kept in the cathedral
church, the main church of an abbatial or prelatical terri-
tory niillhis, of a Vicariate and Prefecture apostolic, in
every parish and quasi-parish church, and in the church
adjoining the house of exempt religious, either male or
female.
2.° The Holy Eucharist may be kept, with the permis-
sion of the local Ordinary, in collegiate churches, in the
principal public or semi-public oratories of charitable or
religious houses, as well as in those of ecclesiastical col-
leges, in charge of either the secular or religious clergy.
In the earliest centuries, as ancient documents testify,
the Holy Eucharist was kept by private persons and in
private houses. But this custom ceased when the
churches were no longer exposed to persecution and com-
munities of faithful gathered around the cathedral as well
as parish churches. The foremost reason for keeping
the Blessed Sacrament is the necessity of administering it
as viaticum to the sick. But the living also are entitled,
especially now-a-days, to the privilege of receiving the
Holy Eucharist. Lastly, the Real Presence naturally im-
plies adoration.1 The present legislation mitigates the
former rigid laws or at least decisions,* which required
papal indults.
A distinction is made between obligation and permis-
sion. The first paragraph of § i says : debet, the second,
potest. The reason for this distinction is clear from the
purpose of reservation, as stated above. Among the
churches which must keep the Blessed Eucharist are those
of exempt religious of both sexes, because they are par-
ish churches for the members. However, it should be
noted that canonical erection is required before a church
i Cfr. Gasparri, Dt SSm* E»ch., a S. C. C, quoted by Caaparri, /.
n. 97»- '• n- 980-
ogle
£ * -. v J„ Original from
UNIVERSITY OF WISCONSIN
~
CANON 1265 215
is allowed to keep the Blessed Sacrament.8 Note, also,
that the cathedral church is mentioned in general terms.
This means that every cathedral church, even though it
is not a parish church, must keep the Blessed Sacrament.
Hence it may no longer be looked upon as a privilege,*
but as an obligation. This is, to say the least, becoming
because the cathedral church is, as it were, the parish
church of the whole diocese.
Among the churches in which the Blessed Sacrament
tnay be kept without special papal indult, and with the sole
consent, either written or oral, explicit or tacit, of the
local Ordinary, are the principal oratories of religious and
charitable institutions. In each religious institution or
house, therefore, one chapel, i. e., the main public or semi-
public oratory, may keep the Holy Eucharist. Infirmary
chapels or private oratories, even of prelates inferior to
bishops, cannot preserve the Holy Eucharist without a
special papal indult. Nor are religious allowed to keep
the Blessed Sacrament in their rural chapels without an
indult.5
D
Charitable institutions in whose principal chapels the
Blessed Sacrament may be kept are, of course, those
which are under ecclesiastical government.6
Observe the term local Ordinary. Hence the permis-
sion must be obtained, not from the prelate regular under
whose jurisdiction or direction a sisterhood or brother-
hood is placed, but from the diocesan Ordinary, by which
name also the Vicar General may be understood.
The canon mentions two preliminary conditions: a
guard and a priest who says Mass at least once a week,
as a rule. It is not required that the one who keeps
3 Cfr. can. 496 f- and our Com- ftS. C. C, Sept. 3, 1703; Ga»-
mentary, Vol. Ill, 82 ff.; S. Rit. C, parri, /. c, n. 978.
April 16, 1644 (n. 860). 6 Cfr. can. 1480.
4 As formerly, see Gasparri, /. c.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
2i6 ADMINISTRATIVE LAW
watch at the church or chapel be a priest. He may be a
layman/ and in religious communities no special guards
are required because the community itself is the guard.
But it is always required that a priest say Mass once a
week, unless he is prevented by an accident. This rule
was made in order to provide for the renewal of the
sacred species and to safeguard the observation of the
rubrics. Where the church is not adapted for the reser-
vation of the Blessed Sacrament, either for lack of doors
or windows, or want of safety, the S. C. has decided that
the Blessed Sacrament should, on account of the sick, be
kept in the parish residence or in the house of another
priest.8
§ 2. To keep the Holy Eucharist in any other church
or oratory besides those mentioned requires a papal indult.
The local Ordinary may grant this permission only for
churches and public oratories, for a just cause, and per
tnodum actus.
Petitions asking for this privilege must be sent to the
S. C. of Sacraments. Religious may address the S. C. of
Religious, though the grant is always made by the former
Congregation.
Which are the " other churches " mentioned in the text ?
They are, negatively, all churches not of the classes men-
a
tioned in § I, i°, and the collegiate churches named in
§ i, n. 2. The term therefore comprises the churches of
confraternities which are not erected in parish churches
or in churches of exempt religious orders or which do not
serve a charitable purpose, v. g., hospital or school work."
The " other oratories " are all private oratories, with
T S. Rit. C, Feb. 17, 1881 (n. 9 S. Rit C, Sept. 12. 1626; June
3517). Mi 1646; Jan. 12, 1704 n. 26 (nn.
8 S. C. P. F., Aug. 23, 1852. »d 2 410, 695, iiaj).
(Coll., n. 1079).
§le
/■~* -» v J„ Original from
UNIVERSITY OF WISCONSIN
~
CANON 1265 217
the exception of course of those located in the residences
of cardinals or bishops, all semi-public oratories which do
not serve as main chapel of a religious community or
charitable institute, and all public oratories which belong
to confraternities or sodalities; not, however, the oratories
of pious associations, because these may reasonably claim
the favor of § 1, n. 2.
The papal indult generally contains the clause: "pro-
vided that the chapel be decently furnished, that the
Blessed Sacrament be safely kept, that a light be always
kept burning before it, and that a priest says Mass there
at least once a week.10
The Ordinary may grant this permission only to
churches and public oratories, not to semi-public or pri-
vate oratories. Besides he must demand a just reason,
and can give the permission only per modum actus (see
can. 1 195). Such a reason for, and transient manner of,
granting this permission would be repair work on the
main church, or deficient seating capacity of the parish
church, or some temporary physical impediment, like a
flood, a fire, or an epidemic.
§ 3. No one is allowed to keep the Blessed Sacrament
in his home or to carry it with him when travelling. If
one would keep the Blessed Sacrament in his home for
sinister purposes, such as magic, he would be open to the
suspicion of heresy and liable to be denounced to the Holy
Office.11
The custom of carrying the sacred host when travelling
has long been given up, and the practice declared unlaw-
ful, even for missionaries.1*
10 S. Rit. C.f M»y *3, 1593 <n. dido." May 14, 1880 (n. J7®6).
31) I. Sometimes has been added 11 S. C P. F., Feb. 25. 1859
the clause: ''absque parochi, intra (Coll., n. 1171).
cutui parockiet fart eristit, praeiu- 12 Guparri, /. c, n. 971.
§le
( "* -» -. iL» Original fro ni
UNIVERSITY OF WISCONSIN
218 ADMINISTRATIVE LAW
open churches
Can. 1266
Ecclesiae in quibus sanctissima Eucharistia asserva-
tur, praescrtira paroeciales, quotidie per aliquot saltern
horas fidclibus pateant.
Churches in which the Blessed Sacrament is kept, espe-
cially parish churches, should be open a few hours daily
to the faithful. For one purpose of reservation is adora-
tion of the Eucharistic Christ.
Can, 1267
Revocato quolibet contrario privilegio, in ipsa re-
ligiosa vel pia domo sanctissima Eucharistia custodiri
nequit, nisi vel in ecclesia vel in principali oratorio ; nee
apud moniales intra chorum vel septa monasterii.
In religious houses or charitable institutions the Holy
Eucharist may be kept only in the church or principal
oratory, and nowhere else ; nuns are not allowed to keep
it within the choir or convent enclosure. Every privi-
lege to the contrary is hereby revoked.
the blessed sacrament altar
Can. 1268
■
a
§ i. Sanctissima Eucharistia continuo seu habituali-
tcr custodiri nequit, nisi in uno tantum eiusdern eccle-
siae altari.
§ 2. Custodiatur in praecellentissimo ac nobilissimo
ecclesiae loco ac proinde regulariter in altari maiore,
nisi aliud venerationi et cultui tanti sacramenti com-
modius et decentius videatur, servato praescripto le-
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 1268 219
gum liturgicarum quod ad ultimos dies hebdomadae
maioris attinet.
§ 3. Sed in ecclesiis cathedralibus, collegiatis aut
conventualibus in quibus ad altare maius chorales
functiones pcrsolvendae sunt, ne ccclesiasticis officiis
impcdimentum afferatur, opportunum est ut sanctis-
sirna Eucharistia regulariter non custodiatur in altari
maiore, sed in alio sacello seu altari.
§ 4. Curent ecclesiarum rectores ut altare in quo
sanctissirnum Sacramcntum asservatur sit prac omni-
bus aliis ornatum, ita ut suo ipso apparatu magis
moveat fidelium pietatem ac devotionem.
a
a
§ i. The Blessed Sacrament cannot be kept habitually
on more than one altar of the same church.
This altar should be designated by the Ordinary,13 and
the rule laid down in this canon also binds regulars.14
Rut an exception is made in favor of churches of perpet-
ual adoration, which must have another tabernacle on
another altar, where holy Communion may be distributed
to the faithful.13 Note the word habitually. During the
Forty Hours' Devotion the Blessed Sacrament must also
be kept on another, for instance, a side altar for the dis-
tribution of holy Communion. On this altar must be
placed a movable tabernacle, and if no railing surrounds
the altar, benches may be placed round about it to mark
it off.10 Of course, where there is no other altar, this
expedient will not work, and the best thing to do is to
have the other kind of Forty Hours' which permits of
reposition every day, or else to construct a temporary
altar with a movable tabernacle. The term habitually
is S. Rit C, July 2i, 1696 (Dec. is S. Rit. C, May 18, 1878 (n.
Autk., n. 1946). 3449).
i« S. Rit. C, March 14, 1861 (n. 10 S. Kit. C, Nor. 23, 1880 (n.
3104). 35*5>-
►ogle
f* -» * J„ Original from
UNIVERSITY OF WISCONSIN
ADMINISTRATIVE LAW
admits of another departure from the general rule. Thus
it is permitted to transfer the Blessed Sacrament from
the usual to another altar during a triduum or novena,
and in the months of May and June, and, we suppose,
also in October, for the distribution of Holy Communion
and Benediction.11
§ 2. The Blessed Sacrament should be kept in the
most prominent place of honor, and therefore gener-
ally on the main altar, unless there is one more conven-
iently located and better suited for the veneration and
cult of this holy Sacrament. Rut the rules regarding the
last three days of Holy Week must be observed. The
Blessed Sacrament may not be kept continually on ihe
altar in the choir (altare chori), but it may be kept on
side altars or in side chapels.1*
The liturgical lazes referred to arc the rubrics and cer-
tain decrees concerning the triduum of Holy Week. One
of these says that no sacred particles may be placed in the
repository together with the Host to be used for the Missa
Praesanctifieatorum on Good Friday.19 For the rest we
must refer the student to the general rubrics.
§ 3. In cathedral, collegiate, and conventual churches
in which the choir functions are held at the main altar,
the Blessed Sacrament may as a rule be kept in an-
other chapel or on another than the high altar, in order
not to interfere with the services. The text says " oppor-
tuntim," which per se does not implv a strict law. How-
a
ever, the S. Congregation, in one instance at least, refused
to allow the Blessed Sacrament to be kept on the high
altar of the cathedral church.20 The C<rretnonialc Epis-
1TS. Rit C, June af 1883 (n. i»S. Rit. C, Dec. 9. 1899. ■<* IV
3576). <n. 4049).
18 S. Rit. C, April a6, 1901 (n. zo S. Rit. C, Feb. 6, 1875 <«•
4*7l) • 333S)-
Go >gle
,|rt Original fro m
UNIVERSJTY OF WISCONSIN
CANON 1269 221
coporum prescribes removal of the Blessed Sacrament
from the altar on which the bishop solemnly pontificates.21
§ 4. The rectors of churches shall take care that the
altar on which the Blessed Sacrament is kept, be more
elaborately decorated than the other altars, so that its very
appearance may move the faithful to devotion.
We know of no special rules for the decoration of the
sacramental altar, except that a light should burn before
it" and the tabernacle be curtained. The Ccvremoniale
Episcofyorutn (1. I, c. 12, n. 8, 12) has in view pontifical
functions. It certainly is becoming that the sacramental
altar should be more elaborately decorated than the others.
More candlesticks, more steps, flowers (when permitted),
an antipendium, and similar ornaments permitted by the
rubrics will help to draw the attention of the faithful to
their Eucharistic Lord. The sacramental altar should be
clearly distinguished from the altar of the Blessed Virgin,
for the Hidden God must not stand back before even His
noblest creature.
t
-
-
the tabernacle
Can. 1269
§ 1. Sanctissima Eucharistia servari debet in taber-
naculo inamovibili in media parte altaris posito.
§ 2. Tabernaculum sit affabre exstructum, unde-
quaque solide clausum, decenter ornatum ad normani
legum liturgicarum, ab omni alia re vacuum, ac tarn
n Tit. 1, c. n. b, 8. The reason altar, neither if the law against this
for this rule lies in the ceremonies practice, because it is " opportune."
to be performed before the Pontiff. 22 A canopy or curtain should be
But if i cathedral church serves as over the tabernacle; Rit. Rom., lit.
parifh church, it certainly is more IV, c. I, n. 6. But it may frankly
convenient for the people that the be stated that an artistic tabernacle
BI. Sacrament be kfpt on the main often sutlers from a cover.
§le
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
222 ADMINISTRATIVE LAW
sedulo custodiatur ut periculum cuiusvis sacrilegae
profanationis arceatur.
§ 3. Gravi aliqua suadente causa ab Ordinario loci
probata, non est vctitum sanctissimam Eucharistiam
nocturno tempore extra altare, super corporal! tamen,
in loco tutiore et decenti, asscrvari, servato praescripto
can. 1271.
§ 4. Clavis tabernaculi, in quo sanctissimum Sacra-
mentum asservatur, diligentissime custodiri debet,
onerata graviter conscientia sacerdotis qui ecclesiae vel
oratorii curam habet.
§ 1. The Blessed Sacrament must be kept in an im-
movable tabernacle in ihe middle of the altar.
§ 2. The tabernacle must be skilfully constructed and
safely locked, appropriately decorated according to the
liturgical rules, he empty, and so carefully guarded that
there is no danger erf sacrilegious profanation.
Concerning the material of which the tabernacle is to
be made, there are no rigid rules*.28 But the more pre-
cious the metal or stone, the more becoming it will be.
Inside the tabernacle may be draped with white cloth, or
simply gilded. On the outside 24 it must be covered with
a veil or curtain. No veil is required on the inside,
though this custom may be tolerated.25 The material of
a
the outside cover or veil may be silk, cotton, wool, hemp,
etc. The color of the veil (called conofacum, because it
is supposed to be thrown over the whole tabernacle) has
not been determined. The S. Congregation has admitted
two opinions: the one which holds that the color must
always be white, the other (Gavante) that it must change
"-.
2:1 The Capuchins may have a 24 S. Rit. C, Aug. 7, 187 1; June
wooden tabernacle without aiij spc- 5, 18^9 (nn. 3-54, 3/og).
cial painting outside: S. Rit. C, 25 S. Rit. C, April 28. 1866 (n.
Dec. 7, 1886, ad XIII (n. 3697). 3*50).
;Ic
I , Original from
UNIVERSITY OF WISCONSIN
CANON 1269 223
according to the office and the seasons. This lattev opin-
ion was favored by the S. Congregation,26 but no strict
rule can be deduced from its answer. Hence a white veil
is certainly admissible. However, since at funeral
masses, exequies and on All Souls' Day, the antipendium
and the drapery are of black, the veil of the tabernacle
should also be, not black, but purple."
§ 3. For any weighty reason which the Ordinary
deems sufficient, it is permitted to keep the Blessed Sac-
rament at night away from the altar, in a more secure and
decent place, but always on a corporal and with due re-
gard to can. 1271. This would undoubtedly be permitted
in case of churches28 used by Catholics and Protestants
alternately, and also in case a missionary lives far away
from the church, especially for administering the Viati-
cum."
§ 4. The key of the tabernacle, in which the Blessed
Sacrament is kept, must be carefully guarded; the respon-
sibility for carrying out this law rests with the priest who
has charge of the church or oratory.
In order to prevent sacrilegious theft or irreverence, the
priest, i. e., the pastor, or rector, or canon sacristan, should
keep the key in his pocket or put it with other keys in a
cupboard or drawer, so that strangers cannot discover
and abuse it.30 It is especially forbidden to hand the key
of the sepulchre on Holy Thursday to a layman, or to a
confraternity or sodality; and no custom to the contrary
is tolerated." How serious this obligation is may be
« S. Hit. C, Jnly U( 1855 (n- *° S. Bit., C, Feb. to. 1871, »d V,
303S). » (»■ 3*34>-
»TS. Rit. C, Dec 1, 1882 (n. so S. C EE. et RR. Feb. 9, 17S*
356a). (Bizzirri, L c, p. 31 '•).
8» S. C. I*. F-, March 7. »8os «S. Rit. C, Dec. 6, 163 1; Dec.
(Coll., n. 681): "in ssdibuj pwo- 7. 1737: May 22, 1841 (nn. 579.
ehV *335. 2833).
ogle
k ,.] ^ Original from
UNIVERSITY OF WISCONSIN
224
ADMINISTRATIVE LAW
judged from the penalties threatened in the decretals and
in one letter of the S. Congregation : Imprisonment, pri-
vation of the active and passive vote, and suspension.
The bishop together with the superior may proceed thus
against exempt religious.32
t
■
THE PYX
Can. 1270
Particulae consecratae, eo numero qui infirmoruni et
aliorum fidelium communioni satis esse possit, per-
petuo conserventur in pyxide ex solida decentique ma-
teria, eaquc munda et suo operculo bene clausa, co-
operta albo velo serico et, quantum res feret, ornato.
A number of consecrated particles, sufficient for the
communion of the sick and other faithful, must always be
kept in a pyx or ciborium made of some solid and suitable
material, kept neat and well closed, covered with a veil of
silk, which may be artistically ornamented as far as the
rubrics allow.
This text is taken almost verbally from the Roman
Ritual, and is also intended for the Orientals, who should,
like the Latins, preserve the particles in a pyx, not in a
dried or unbecoming form, as if they were mere bread.88
The pyx should be made of metal, not of glass or some
similar substance, even though there be danger that it be
stolen.8* Copper is admissible," if gilded.
The particles may never be kept on the corporal, even
though there be danger of theft.88 They must be pre-
ss s. C EE. rt RR.. /. e.
13 Rit. Rom., tit IV, c. 1, n. 5;
Bencd. XIV. " Pratelaris," March
18, 1746 (Coll. P. F.p n. 356).
>*S. Rit. C, Jan. 30, 1880 (Dee.
Autk . V.. .-!!!).
85 S. Rit. C. Aug. 31. 1867, ad VI
(n. 316a).
so S. Rit. C, Feb. 17, 1881 (n.
J527).
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1 27 1 225
served perpetuo, i. e., always, even during the Corpus
Christi procession."
The veil or cover of the ciborium may be embroidered
or bear some suitable emblems having reference to the
Holy Eucharist ; hut it must not he overloaded or so
heavy that it is difficult to open the lid.
The ciborium itself must be kept clean, especially from
rust and verdigris.
-
-
the tabernacle light
Can. 1271
Coram tabernaculo, in quo sanctissimum Sacramen-
tum asservatur, una saltern lampas diu noctuque con-
tinenter luceat, nutrienda oleo olivarum vel cera apum ;
ubi vero oleum olivarum haberi nequeat, Ordinarii loci
prudentiae permittitur ut aliis oleis commutetur, quan-
tum fieri potest, vegetabilibus.
At least one lamp must burn day and night before the
tabernacle in which the Blessed Sacrament is kept. For
this lamp olive oil or beeswax should be used ; if no olive
oil is available, other oils may be used, according to the
prudent judgment of the Ordinary, but they should be
vegetable oils, if possible.
This is a grave obligation, as may be seen from the
constant insistence with which it was forced upon the
rectors of churches. The sanctuary lamp must be re-
served for the sole purpose for which it is prescribed, and
not serve other purposes, for instance, illumining a dor-
mitory.38 The lamp may be attached to the side wall,
like a bracket or cornucopia, provided that the light burns
3TS. Rit C, Aug. 13, 1667, ad 2 8* S. Rit. C, Aug. a*, 1669 vn.
(n. 1357). 2033).
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
226
ADMINISTRATIVE LAW
-
■
—
a
N
■n
towards and before the altar (infra et ante altarc).*9
Olive oil best serves the mystic significance of the sanc-
tuary lamp, as expressed in the liturgy of Palm Sunday."
However, beeswax, the significance of which is pointed
out on Candlemas Day, is also permitted. So, too, is a
mixture of olive oil and beeswax.41 Vegetable oils (lin-
seed, sesame, etc.) may be used where olive oil is unavail-
able. Note well that the text does not admit the use of
electric light for the sanctuary lamp, as a decree of the
S. Rit. C. permitted about four years ago, "on account
of war conditions."*2 On the other hand it is safe to
say that this decree seems to pave the way for the use of
electric or gaslight as an aid to reading and for ornamen-
tal purposes, even on the altar. Hence the former rigor-
ous decisions" may be taken with a goodly dose of dis-
cretion.
ALTAR BREADS
Can. 1272
Hostiae consecratae, sive propter fidelium commu-
nionem, sive propter expositionem sanctissimi Sacra-
ment!, et recentes sint ct frequenter renoventur, vcteri-
bus rite consumptis, ita ut nullum sit periculum corrup-
ionis, sedulo servatis instructionibus quas Ordinarius
loci hac de re dederit.
The*consecrated hosts reserved for the communion of
the faithful or for the exposition of the Blessed Sacra-
ment mast be fresh and should be frequently renewed, the
89 S. Rit C, June 2, 1883 ad XV
in. 3578)-
40 S. Rit. &, July 9, 1864 (n.
JiJi).
«i S. Rit. C, Nov. 8, 1907 (»>•
4">5).
« S. Rit. Cm Nov. 22, 1907 <n.
4206); Nov. aj, 1916 {A. Ap. S.,
vnr. 7» f).
43 S. Rit. C., Nov. jo, 1 901; Mar
16, 1902; Nov. 22, 1907 (no. 4086,
4097, 4206).
oogle
Original from
UNIVERSITY OF WI5L0NSI
~
'■-.
CANON 1273 227
old ones having been duly consumed, so that there is no
danger of corruption. Upon this matter the instructions
given by the local Ordinaries should be scrupulously ob-
served. See can. 815. Attention may be drawn to the
decisions of the S. Congregation of Rites, which insist
upon weekly renewal of the sacred species according to
the C&renwniale Episcoporum*4
frequent assistance at mass and visits to the
blessed sacrament
Can. 1273
Qui in rcligiosam jRdelium institutionem incumbunt,
nihil omittant ut pietatem erga sanctissimam Eucha-
ristiam in eorum animis excitent, eosque praesertim
hortentur ut, non modo diebus dominicis et festis de
praecepto, sed etiam diebus ferialibus intra hebdoma-
dam, frequenter, quantum fieri potest, Missae sacri-
ficio assistant et sanctissimum Sacramentum visitent.
Those who have charge of the religious instruction of
the faithful, should endeavor to foster in their hearts de-
votion to the Holy Eucharist, and exhort them to assist at
Mass not only on Sundays and holydays of obligation, but
also as oflen as possible on weekdays, and to visit the
Blessed Sacrament.
exposition of the blessed sacrament
Can. 1274
§ 1. In ecclesiis aut oratoriis quibus datum est as-
servare sanctissimam Eucharistiam, fieri potest expo-
sitio privata seu cum pyxide ex qualibet iusta causa
sine Ordinarii licentia ; expositio vero publica seu cum
44 Lib. I, c. VT. n. 2; S. Rit C, Sept. 12, 1884, n. II (n. S624).
ioi >gle
f^ ^ s ^\t^ Original fro ni
UNIVERSITY OF WISCONSIN
228 ADMINISTRATIVE LAW
ostensorio die festo Corporis Christi et intra octavam
fieri potest in omnibus ecclesiis inter Missarum sollem-
nia et ad Vesperas; aliis vero temporibus nonnisi ex
iusta et gravi causa praesertim publica et de Ordinarii
loci licentia, licet ecclesia ad religionem exemptam
pertineat.
§ 2. Minister expositionis et repositions sanctissimi
Sacramenti est sacerdos vel diaconus; minister vero
benedictionis Eucharisticae est solus sacerdos, nee
earn impertire diaconus potest, nisi in casu quo, ad nor-
mam can. 845, § a, Viaticum ad infirmum detulerit.
~
§ 1. Private exposition of the Blessed Sacrament, i. e.,
with the ciborium, may be held for any reasonable cause
without the permission of the Ordinary in churches and
oratories in which the Blessed Sacrament is lawfully kept.
This sounds partly like a definition and is no doubt in-
tended as such, to distinguish private from public ex-
position, which is mentioned in the next clause. But the
definition is not complete and should be supplemented by
a decision of the S. Congregation of Rites." Private ex-
position {ex causa privata) takes place if the Blessed
Sacrament is not taken out of the tabernacle, but remains
hidden, so that the Host cannot be seen. Hence the taber-
nacle is opened and the ciborium is placed near the open-
ing.** Private exposition excludes placing the ciborium
or pyx, as it is called in the decisions *7 upon a throne or
movable tabernacle. Benediction with the ciborium is not
forbidden where there is a long-standing custom author-
izing it." In fact, says Cardinal Gasparri/0 if this less
45 May 31, 1642 (n. 800). 28, 190,1 (nn. 27^5, 4096).
46 Bcncd. XIV, Instit., 30, n. 4a 5. Rit. C, Sept. 11, 1847;
XVI; Gasparri, Dt SSma Euch., a. March 16, 1876 Inp. '957, J 394).
io»a. *9 L. c.t o. 1034: Bened. XIV. In-
47 S. Rit C, May 23, '835: April stit., 30, n. VI f., where the pros
^
£ ' ^ •, %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 1274 229
solemn benediction can be imparted pro causa turn pub-
lico turn privata, the Ordinary should not permit solemn
and visible benediction with the ostensorium except for a
causa publico. This appears to us a very reasonable rule.
Thus during the month of October this private benedic-
tion, we believe, would be amply justified and sufficient on
weekdays.
What is a causa privata? A case of sickness or the
mere desire of pious persons or of a religious community
would be a private cause sufficient to justify private expo-
sition.00
The mode of holding this kind of exposition and im-
parting the benediction is as follows: The priest wears
stole and surplice, also, if he wishes, a cope. At least six
candles must be lighted, but the inccnsation is omitted,
since this is not in keeping with the Roman practice.81
Praying and singing are allowed, and the Tantum ergo
with versicle and oration may be said or sung. After
the blessing is given the tabernacle should again be
closed."
Such an exposition requires no permission from the
Ordinary, and is permitted in all churches and oratories
which are entitled, either by law or by an indult, to keep
the Blessed Sacrament, according, to can. 1265.
Public exposition, i. e., with the ostensorium or mon-
strance, may be held in all churches on the feast of Cor-
pus Christi and every day within its octave, at Mass and
Vespers, but not on other occasions except for a just and
weighty reason, especially of a public character, and with
the permission of the diocesan Ordinary, which is re-
quired also for churches which belong to exempt religious.
■r.d com of frequent exposition we Bi S. Rit C, Sept. II, 1847 (n.
set forth. *957)-
BO Bened. XIV, /. c, n. XVI. 83 Gasparri, /. c, n. 10S7.
>Ic
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
230
ADMINISTRATIVE LAW
The difference between private and public exposition
lies in the manner of exhibiting the Blessed Sacrament as
well as in the reason for which it is permitted. The pre-
scribed vessel here is the ostcnsorium with the lunula.**
This is generally placed under a canopy on a throne, on
which is spread a palla or corporal. It is becoming that
twenty candles, or at least twelve,04 be burning on the
altar during the exposition. The color of the antipen-
dium as well as of the canopy and the vestments worn by
the ministers is white. However, if the exposition is con-
nected with the office of the day, for instance, Pentecost,
the antipendium and the vestments worn by the ministers
must be of the color of the day, i. e.t red in the case sup-
posed, whilst the canopy may be white. But this is re-
quired only if the priest does not leave the altar before the
exposition. If he goes to the sacristy after Mass or Ves-
pers are said, he may vest in white. White is also the
color of the velum or kitmerale thrown over the shoul-
ders.60 Black is not allowed under any circumstance at
the altar or in the chapel of exposition, even though the
rest of the church still bears signs of mourning."
All relics must be removed from the altar of expo-
sition.51.
The Mass of exposition should as a rule be at least a
missa cantata or solcmnis, although the term inter Mis-
sarum sollcmnia does not strictly require a sung Mass.59
When the Blessed Sacrament is exposed after Communion
S3 A so-called custodia is not ne-
cessary fur the lunula. Tlic mate-
rial for the ottemutrium and lunula
is not determined by law, but should
be the same as for the ciborium;
Gasparri, I, c, n, 1030 f.
B4 S. Rit. C, Feb. 8, 1879 (n.
3480) : in this case the churches
were poor.
50 Gasparri, /. c, n. 1040.
so a. Rit. C, March 13, 1804 (n.
»558>: not even if a niler dies.
57 S. Rit. C, Sept a. 1741, ad 1
(n. *j65).
05 S. Rit. C, Sept. 2$, 188a (0.
3558) has permitted the custom of
exposing the Bl. Sacr. witli a low
Mass early in the morning.
>gle
Original fro m
UNIVERSITY OF WISCONSIN
—
CANON 1274 231
at Mass, the ostensorium should not be covered with a
velum.™
The genuflections are to be made by bending both knees
at private as well as public expositions.*0
Public exposition is permitted on the feast of Corpus
Christi and within its Octave, but only in churches, which
term includes public oratories. But what about semi-
public oratories which, according to can. 1265, § I, n. 2,
are allowed to keep the Blessed Sacrament habitually?
The text of our canon would seem to exclude them.
Cardinal Gasparri simply says: It is evident. that exposi-
tion can only be held in a church which is entitled to keep
the Blessed Sacrament. This would apply also to semi-
public oratories, and we believe that the term in ecclesiis
here should not be taken too strictly, provided, of course,
the functions can be carried out according to the rubrics.
At any rate, it would only require a permission from the
Ordinary to authorize public exposition in pious institu-
tions."
The last clause of § I, can. 1274, mentions "other
times " at which public exposition may be held for a just
and reasonable, especially a public cause. What is a
causa publico? It is one that concerns the whole com-
monwealth, or municipality, or parish, or diocese, or coun-
try. But it may also be a reason of less extent, according
to approved authors.62 Such a reason would be the erad-
ication of vice and fostering of virtue, public peace and
tranquillity, impending disasters, etc., or any other reason
which in one way or another, according to the judgment
of the Ordinary, affects a community, or at least the larger
part thereof. Other times are all those days which do not
fall within the Octave of Corpus Christi. On no other
BO Gasparri, /. e., n. 1036. «1 GaBparri, /. c, n. 103B.
■0 Ibid., .1. 1033. *2 Ibid., n. 1034.
oogle
Original from
UNIVERSITY OF WISCONSIN
232 ADMINISTRATIVE LAW
day of the year, except, of course, the last three days of
Holy Week, is public exposition forbidden, although Ben-
edict XIV refused to permit it on the feastdays of Saints,
when these are celebrated with more or less worldly
pomp.*3 But custom may admit also those days.84 Note
that a weighty and public reason is required and, besides,
the express permission of the Ordinary must be obtained.
From this rule the S. Congregation would dispense neither
in favor of exempt religious, no matter how many priv-
ileges they may claim, nor in favor of confraternities."
The latter may have an exposition, provided episcopal
permission was given, without asking or notifying the
pastor.80 Hence the faculty of keeping the Blessed Sac-
rament does not include that of having an exposition of
it outside the feast and octave of Corpus Christi.67
§ 2. The minister of exposition is the priest or dea-
con ; but a priest may give the benediction, whereas a dea-
con may only impart the blessing according to can. 845,
§ 2, vis., when administering the viaticum.
Note that no mechanism is allowed for exposing the
Blessed Sacrament, but the minister must expose it with
his hands.08 The rather quaint manner of exposition
mentioned in one decision, where the ostensorium was
placed on the right arm of the statue of a Saint, was for-
bidden."
~
anlnslit, so. n. XTV. eT S. Rit. C, Jan. ia. 1704 ad 27
e« S. Rit C, Sept 27, 1S64, ad 5 (n. 2123).
(n. 3124). 08 S. Rit C, April 3. 1873 (Gai-
ns This is the tenor of all the deci- parri, /. c, n. 1041); not contained
siona quoted by Card. Gosporri in in D*c. Auth,
his edition; cfr. Dened. XIV. Inst.. m»S. Rit C. Aug. 2, 1884 (n.
30. a. IX f. 3615).
aoS. Rit C, March t8. 1679 (n.
1622).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
—
CANON 1275 233
the forty hours* devotion
Can. 1275
Supplicatio Quadraginta Horarum in omnibus cc-
clesiis paroecialibus aliisque, in quibus sanctissimuin
Sacramentum habitualiter asservatur, statutis de con-
sensu Ordinarii loci diebus, maiore qua fieri potest
sollemnitate quotannis habcatur; et sicubi ob peculi-
aria rerum adiuncta nequeat sine gravi incommodo ct
cum rcvcrentia tanto sacramento dcbita fieri, curet
loci Ordinarius ut saltern per aliquot continuas boras,
statis diebus, sanctissimum Sacramentum sollemniore
ritu exponatur.
The Forty Hours' Devotion should be held every year,
on the days established, with the consent of the local Or-
dinary, in all parochial and other churches in which the
Blessed Sacrament is habitually kept, and with the great-
est possible solemnity. When special circumstances per-
mit the exposition of the Blessed Sacrament only with
great inconvenience or danger of irreverence, the local
Ordinary shall see to it that it be exposed solemnly at
least for a number of consecutive hours on stated days.
The consent of the Ordinary may be given once for all,
especially when definite churches arc assigned for holding
the devotion on certain days. This consent is required also
for churches of regulars and confraternities,10 nor may
the pastor or first dignitary of the cathedral church pre-
scribe the devotion without the permission of the bishop.71
During Holy Week, ». e., from the morning of Holy
TO S. Rit. C, Sept. is. 1643 (n. 71 S. Rlt. C, June 4. 1644 (n.
814). «69).
oogle
Original from
UNIVERSITY OF WISCONSIN
234 ADMINISTRATIVE LAW
Thursday until early on Holy Saturday, the devotion must
be stopped.72
The Forty Hours' Devotion began in the sixteenth
century. It was at first held on the days preceding Lent,
which custom was approved by the Roman Pontiffs.78
Clement VIII ordered the Forty Hours' Devotion as we
know it. Clement XI not only approved it, but prescribed
perpetual exposition on the same occasion and issued the
so-called Clementina. The privileges and favors granted
by this document are attached only to perpetual exposi-
tion, unless a special indult is obtained.7*
7a S. Rit C. March ia. 1661 (n. T* Instructio. 21. 1705; S. Rit. C.
1190). May 27, 1911, ad III (n. aa68).
7sBened. XIV, Jan. 1, 1748.
•>.
~-
( *r\nnl*> Original from
jf^OOglL UNIVERSITY OF WISCONSIN
I
TITLE XVI
WORSHIP OF THE SAINTS, SACRED IMAGES,
AND RELICS
Can. 1276
Bonum atque utile est Del Servos, una cum Christo
regnantes, suppliciter invocare coruraque reliquias
atque imagines venerari; sed prae ceteris filial! devo-
tione Beatissimam Virginem Mariam fideles universi
prosequantur.
This canon, taken substantially from the dogmatic can-
ons of the Council of Trent,1 embodies the time-honored
practice of the Catholic Church and voices a rebuke
against ancient and modern image-breakers. It lays it
down as a good and useful practice to invoke the inter-
cession of the servants of God who reign with Christ,
above all the Blessed Virgin Mary, and to venerate their
relics and images. The hyperdulia paid to the Mother of
God is not in vain,' although she is a creature. Nor is
it imposture, as the so-called reformers maintained, to say
Mass in honor of the Saints and to obtain their interces-
sion with God.a It would be rash and pernicious to re-
prove the faithful for showing particular veneration and
attributing special titles of honor to miraculous images of
the Saints, especially those of the Blessed Virgin Mary*
1 Seas. 35, de invoc. 8 Trid., S«i. 22, can. 5, de Sacrif.
c Prop, .-tf damn, a 5. O., Dec. 7, Missae.
1690 (Denzinger, n. 1183). * Profit*. 7°. 7* damn, per " Aue-
235
gle
j , Original from
UNIVERSITY OF WISCONSIN
236 ADMINISTRATIVE LAW
There is not the slightest danger that, in venerating the
Saints and their images, we shall fail to adore God in
spirit and in truth, or that the memory of the Saints will
dislodge God from the hearts of the faithful.5 For the
rest, the reasonableness of the veneration of the Saints is
a matter for theologians.
PUBLIC WORSHIP OF THE SAINTS
Can. 1277
§ 1. Cultu publico eos tantum Dei Servos venerari
licet, qui auctoritate Ecclesiae inter Sanctos vel Beatos
relati sint.
§ 2. In album Sanctorum canonice relatis cultus
duliae debetur; Sancti coli possunt ubique et quovis
actu eius generis cultus; Beati vero non possunt, niai
loco et modo quo Romanus Pontifex concesserit.
§ 1. Only those servants of God may be publicly wor-
shiped who are counted among the Saints and Blessed
by the authority of the Church.
The history of beatification and canonization may be
studied in the classic work of Benedict XIV.0 Since the
Xllth century this function is reserved to the Holy See
as a causa tnaior. (See P. II, Book IV.)
Urban VIII, in his Constitution " Caelestis Hicruso-
lent/' of July 25, 1634, ruled that no images or votive tab-
lets should be permitted in churches and oratories of
persons who had not yet been declared Saints or Blessed
by the Apostolic See, except such as had been venerated
tcrem fiJci," Aug;, *8, 1794 (Dcnxio- « Dt Servorum Dei Bcatificmtionr
ger, n. 1433 ;".). et Canonizatione. ed. I'rati. 1830,
5 Propp. 18, 35, 36 damn. Nov, 20, Vols. 7. We may also refer to Part
1687 (ibid., nn. 1105, 1 122 f.). II, Booh IV of this Commentary.
jle
Y ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1277 237
either " by common consent of the Church, or by immem-
orable custom or in the writings of the Holy Fathers and
holy men." From this ruling it was but natural to con-
clude that there was a casus eveeptus from the general
rule of beatification and canonization, vis., the cult attrib-
uted to a distinguished servant of God and proved by
means described in the Constitution of Urban VIII,
quoted above.
Pending the Causa, or after the Commission for the
trial has been assigned, it is strictly forbidden to call a
servant of God " Venerable " and to hold any service of
thanksgiving for the introductio causae or to deliver any
panegyrics.
A person may be called " Venerable " only after a
formal decree to this effect has been published.7 Be-
sides it must be understood that, although Saints or
Blessed were venerated publicly with Office and Mass, it
is required that their worship be approved and ratified by
the Church before a Mass or a proper office in their honor
is permitted. For the general rule is that such propria
and Mass are accorded only to such Saints and Blessed
who are mentioned in the Roman Martyrology or have
enjoyed a public cult which has been either formally de-
creed or ratified by the Holy See.6 Sometimes Saints and
Blessed are inserted in diocesan calendars (ordo) who are
neither found in the Martyrology nor endowed with a de-
cree of the Holy See. This insertion in diocesan calen-
dars or propria of a diocese or order can never produce
the effect or create the presumption of a formal or aequi-
pollens beatification, but leaves both title and cult in statu
quo ante.9
T S. Bit C , Aug. 26, 1913 (A. Ap. 0 S. Rit. C. April a8, 1914 tA.
S., V. 436 ff-)- A* S., VI. a35 O.
§S. Rit C, July 13, 1896 (n.
39*6).
>Ic
£ ' ^ * -Ar* Original from
UNIVERSITY OF WISCONSIN
238 ADMINISTRATIVE LAW
Above a prohibition of exhibiting the images or statues
of Saints or Blessed not approved as such by the Holy See,
was mentioned. This prohibition includes any public ven-
eration either outside or inside of the church or altar.10
But it is not forbidden to paint the pictures and events
from the life of pious servants of God upon the walls of a
church, or on the stained windows, provided these repre-
sentations contain no nimbus or halo that would indicate
canonization, beatification or a cult.11
§ 2. To those who have been canonically inserted in
the catalogue of Saints is due the worship called dulia.
Saints may be worshipped everywhere and by any act of
dulia, but the Blessed may be worshipped only in the
places and manner expressly granted by the Roman Pon-
tiff.
A canonical insertion is made either by a formal or by
an equivalent (aequipollens) decree issued by the Church,
ratifying the cult offered to a Saint or Blessed person
either by a long-standing tradition, or the common con-
sent of the Church, or the writings of Holy Fathers and
saintly men. These Saints, then, may receive the worship
of dulia, as explained in can. 1255.
There is a difference between Saints in the strict sense
and Blessed, although the distinction of cult is hardly
perceptible. Benedict XIV12 states three characteristics
which distinguish Saints from Blessed:
(1) Beatification permits, canonization prescribes wor-
ship; at least this is the rule, though the Pontiff admits
exceptions.
(2) The worship of a Blessed is confined to a certain
10 S. Rit. C, Sept 38, 1658 (n. \2 Dt Sm'orum Dei Btat. etc, 1.
1097). I, c. 39, on. la B.
11 S. Rit. C, Aug. 27, 1894 (n.
3835).
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 1277 239
province, diocese, city, or religious institute, whereas the
Saints may, though they need not, be worshipped every-
where throughout the whole Church.
(3) Canonization is the definitive and ultimate sentence
of the Sovereign Pontiff, by which the worship of a Saint
is prescribed for the whole Church, whilst beatification is
a less definitive pronouncement.13 This latter feature, ac-
cording to Benedict XIV, marks the real difference be-
tween Saints and Blessed.
The general rules which must be observed concerning
the worship of the Blessed are the following :
1. Mass and Office must be especially granted by the
Roman Pontiff in honor of the Blessed. This indult is
not included in the grant of erecting an altar in honor of
the Blessed, nor is the public recitation of the Office per-
mitted by the act which permits worship. Devotions,
however, or festa devotionis, may be celebrated in honor
of the Blessed, but not regular holydays with Mass and
office, unless there be a special indult to this effect.1*
If a Mass and office have been granted by special indult,
the priests who celebrate Mass in chapels or churches for
which the indult was given may and must conform to the
rubrics, i. e., they should say the Mass of the Blessed, if
prescribed according to the approved calendar.15
2. As to images, votive tablets, statues, and pictures of
the Blessed, these may be publicly exhibited for veneration
in churches and oratories If the indult for Mass and
office has been given, because this indult includes per-
mission to exhibit said objects. Otherwise the images,
11 Hence theolopiani are unani- 14 S. Rit C, Sept. •-. 1659;
mous in stating the infallibility of April 17. 1660; July 24, 1015 {Dec.
the Pope with regard to canon iz a- Auth., nn. iij6, 1156; A. Ap. S.§
Hon, whilst they are more or less VII, 389).
divided concerning beatification; cfr. IS See the decree of Dec. 9, 189S
Mauella. /'.- Ret. & EccL n. 813. of the S. Kit. C.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
*40 ADMINISTRATIVE LAW
etc., may only be placed on the walls of the church or
chapel, but never on the altar; and the local Ordinary is
entitled to have them removed.
3. The names of the Blessed may not be inserted in the
general calendar, but only in the one used for the par-
ticular place or institute ; nor may it be recited in the
suffragium Sanctorum, or in other prayers, except those
approved by the Holy See.
4. If the worship of a Blessed has been granted for a
certain place, it cannot he extended to another without a
papal indult.
5. These rules must also be observed by exempt relig-
ious, no matter what their name or privileges may be or
have been,
PATRON SAINTS
~
Can. 1278
Laudabiliter quoque, servatis servandis, Sancti na-
tionum, dioecesium, provinciarum, confraternitatum,
familiar um reltgiosarum aliorumque locorum et moral-
ium personarum eliguntur et, accedente confirmation*
Sedis Apostolicae, constituuntur Patron i ; Beati non
item, sine peculiari eiusdem Sedis Apostolicae indulto.
It is praiseworthy that nations, dioceses, provinces, con-
fraternities, religious institutes, places and corporations
should choose patron saints with the approval of the
Apostolic See. But the Blessed can be chosen patrons
only with a special indult of the same Holy See.
The approval of the Apostolic See is also required
when a new patron Saint is chosen instead of an old one.1*
Thus it may happen that a revolution sweeps away re-
ligious communities and the new occupants of a church
li S. Rit. C, March 2j, 1630 (o. 526).
oogle
% .J,., Original fro ni
UNIVERSITY OF WISCONSIN
",
CANON 1279 241
choose another patron saint. Such a change may be made
with the consent of the S. Rit. C." The patron-saint of
a place or community may differ from the one in whose
name a church is dedicated. In a large city, for instance,
there may be many patron or titular saints of different
churches, but only one patron of the city, or diocese, or
province.18
pictures of saints
Can. 1279
§ 1. Ncmini liccat in ecclesiis, etiam exemptis,
aliisve locis sacris ullam insolitam ponere vel poncn-
dam curare imaginem, nisi ab Ordinario loci sit ap-
probata.
§ a. Ordinarius autem sacras imagines publice ad
fid«lium venerationem exponendas ne approbet, quae
cum probato Ecclesiac usu non congruant.
§ 3. Nunquam sinat Ordinarius in ecclesiis aliisve
locis sacris exhiberi falsi dogmatis imagines vel quae
debitam decentiam et honestatem non praescf crant , aut
rudibus periculosi erroris occasionem praebeant.
§ 4. Si imagines, publicae venerationi expositae,
sollemniter benedicantur, haec benedictio Ordinario
reservatur, qui tamen potest earn cuilibet sacerdoti
committere.
§ 1 repeats almost verbally the strict prohibition of the
Council of Trent10 against exhibiting unusual images, in
churches or sacred places, even of exempt religious, unless
the approval of the local Ordinary has first been obtained.
§ 2. The Ordinaries shall never allow any sacred im-
1TS. Rit. C, June 1, 1876, ad VI 18 S. Rit. C, May 1, 1857 (n-
(n. 34"°)- 3048).
10 Sei«. 35, dt invoeat.
v ,|,, Original from
UNIVERSITY OF WISCONSIN
>gle
242 ADMINISTRATIVE LAW
ages to be publicly exhibited to the veneration of the faith-
ful, unless these images are in keeping with the approved
usage of the Church.
From this paragraph may be negatively deduced what
an unusual image (insolita imago) is, namely, an image
that represents persons or events in a manner which has
no justification in either Holy Scripture or tradition.
Thus to represent the Holy Ghost in the form of a young
man has never been sanctioned, but rather reprobated, by
the Church. The Blessed Trinity may not be represented
in the shape of a man with three heads, or of one man
with two heads with a dove between them.20 A statue or
painting similarly representing the Sorrowful Mother
dressed in black and holding a crucifix in the left hand
would be an unusual picture.21 Pictures of the Sacred
Heart of Jesus representing the Heart alone, without the
rest of the body, are not allowed to be exhibited publicly
on altars, but may be used for private devotion.22 The
title "Cor Jestt Eucharisticum" is neither canonical nor
liturgical, and hence no pictures of it may be exhibited to
the veneration of the faithful.23 Chinese Christians some-
times depict our Saviour with a Chinese beard and shoes.
This custom is not strictly forbidden, but should be dis-
couraged.
Note that the term images comprises all kinds of repre-
sentations: statues, pictures, medals, etc.
§ 3. The Ordinary shall never permit the exhibition, in
D
churches or sacred places, of images which offend against
dogma or lack decency and propriety, or are apt to lead
30 Bened. XIV, " Sollicitudini," is to be represented according to the
Oct. i, 1745, 85 10 ff. decree of April 26, 1875; Nov. 29,
»t S. Rit. C, Feb. 13, 1894 (n. 1878 <n. 3470).
j* 18). 33 S. Rit. C, March 28. Tulv 15.
22 S. 0., Aug. 26, 1891 {Coll P. 1914 {A. Ap. S., VI, 146, 382 t).
F., n. 1767). The S. Heart of Mary
Go >gle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1280 243
the ignorant into error. Undogmatic are the above-men-
tioned representations of the Holy Ghost and the Blessed
Trinity. Decency is also required in the garb or dress
given to statue.?, which only too often offend against good
taste.2* Danger might arise from the veneration of im-
ages if ignorant persons would be permitted to worship
one who has never been declared or acknowledged as a
saint,25 or if fetichism were attached to their devotion.
§ 4. The solemn blessing of images which are to be ex-
hibited for public veneration is reserved to the Ordinary,
who may, however, delegate this function to any priest.
There is no rule or law prescribing the blessing of images.
~
-
a
restoration of statues and paintings
Can. 1280
Imagines pretiosae, idest vetustate, arte, aut cultu
praestantes, in ecclesiis vel oratoriis publicis fidelium
venerationi expositae, si quando reparatione indigeant,
nunquam restaurentur sine dato script's consensu ab
Ordinario; qui, antcquam licentiam concedat, pru-
dentes ac peritos viros consular
Images which possess great value by reason of their
antiquity, artistic finish or the veneration given to them,
and which have been exhibited to the worship of the faith-
ful in churches and public oratories, if in need of repairs,
must not be restored without the written consent of the
Ordinary, who shall seek advice from wise and experi-
enced men before he grants such a permission. This is
a very timely law which should have been enforced in the
seventeenth and eighteenth centuries when ecclesiastical
**S. Rit. C., March 15. 1888 (n. 25 S. Rit. C, Aug. 31, 1889 Co.
J690). 37'S).
jle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
?44 ADMINISTRATIVE LAW
dignitaries often " restored " fine romanesquc chuiches of
Gothic or Moorish architecture and converted them into
whitewashed Barocco edifices."
We may also be permitted to add that some modern
statues savor very much of the " salon." Take, for ex-
ample, a good many representations of St. Francis of
Assisi and St. Antony, which are anything but dignified
in their fancy costumes. Ecclesiastical statuaries should
be inspected before they are ecclesiastically approved.
alienation of relics and images
Can. 1281
§ 1. Insignes reliquiae aut imagines pretiosae
itemquc aliae reliquiae aut imagines quae in aliqua
ecclesia magna populi veneratione honorentur, ne-
queunt valide alienari neque in aliarn ecclesiam per-
petuo transferri sine Apostolicae Sedis permissu.
§ 2. Insignes Sanctorum vel Beatorum reliquiae
sunt corpus, caput, brachium, antibrachium, cor, lin-
gua, manus, cms aut ilia pars corporis in qua passus
est martyr, dummodo sit integra et non parva.
§ 1 prohibits the alienation of important relics or im-
ages of great value, as well as of such relics and images
as are held in great honor by the people in some church.
To alienate such without an apostolic indul is void of ef-
fect in the ecclesiastical external forum as well as in the
court of conscience. Nor may such relics or images be
permanently transferred to another church without per-
mission from Rome.
In the eighth and ninth centuries, after many relics had
zo Example: the cathedral of Amain in Italy.
§le
v ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1281 245
been transferred from the catacombs to the churches of
Rome, a regular traffic in relics began which soon became
a public scandal. A synod of Mayence, in 813, forbade
the transfer of bodies of saints without the permission of
the secular ruler, or bishop, or synod.37 The fourth Lat-
eran Council prohibited the exhibition of relics for sale
as detrimental to religion and also commanded that all
ancient relics should be enclosed in reliquaries and neither
exposed nor sold without authority from the Sovereign
Pontiff. Minor prelates in whose churches relics were
venerated, were urged not to permit fraud by exhibiting
false documents to allure the faithful — as, adds the coun-
cil, had happened in several places, for the sake of gain."
Transfer from one altar to another of the same church
may be permitted by the bishop.20
Temporary transfer is permissible because the Code
uses the term perpetuo. Hence if repairs or other rea-
sons would render a temporary transfer necessary, no re-
course to the Holy See would be required, provided, of
course, the relics or images are replaced.
§ 2 defines what an important relic (insignis reliquia)
is. It is the entire body, head, arm, forearm, heart,
tongue, hand, leg of a saint or blessed person, or that
part of his body in which the martyr suffered death, pro-
vided it be entire and not a small part. This paragraph
is verbally taken from a decree of the S. C. of Rites,
which however, added: "duly approved by the Ordi-
nary." 80 This clause is omitted in our text, probably on
account of the following canon. There is a special reason
for mentioning the different parts, namely, because on the
27 Can. 51, c 37, Diat. 1 dt so S. C. Indulg., Nor. 17, 1676
com.; Hefele, ConciUGesch., Ill, (Prinzivalli. /. c. n. 13).
711, 80S. Rit. C, April 8, 1628 (n.
is C. a, X, III, 4S- 46o).
►ogle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
£46 ADMINISTRATIVE LAW
Feast of Relics the Credo is to be recited in churches
where an important relic is preserved.
After the publication or the decree of 1628 doubts arose
as to what parts of the body of a Saint were meant.
Most of the answers given in reply to questions were neg-
ative. Thus, the tibia or shinbone, or fetnoris ossa or
thighbone, or smaller parts of the same, or the foot with
some toes on it, were not acknowledged to be an insignis
reliquia, nor even part of the head.31 On the other hand,
the forearm and the upper arm, from the elbow to the
shoulder, were acknowledged as insignia?1
Integra or entire is that part of the body in which the
martyr suffered, provided it be unmutilated; if it is mu-
tilated, for instance, the cranium crushed, it could be gath-
ered up and the parts reassembled so as to make one
whole.85 Besides, it must be a considerable part, not a
mere splinter (now part/a).
—
Can. 1282
2
§ 1. Insignes Sanctorum vel Beatorum reliquiae
nequeunt in aedibus vel oratoriis privatis asservari,
sine expressa Ordinarii loci licentia.
§ 2. Reliquiae non insignes debito cum honore
etiam in domibus privatis servari pieque a fxdelibus
gestari possunt.
■
Important relics of saints and blessed persons may not
be preserved in private homes and oratories without the
express permission of the local Ordinary. Minor relics,
on the other hand, may be kept in private houses and rev-
-
31 S. Rit C, Dec. 20, 1628; June 32 S. Rit. C, June 27, 1899, ad
3, 166a ad 2; Dec. 7, 1844 ("u- 490. II <n- 404»).
i»34. 2883); S. C. Indulff., June xa, 83 S. Rit. C, Dec, 3, 167a (n.
1822 (Prinrivalli, n. 4J0). 1460).
jle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 1285 247
erently carried about by the faithful. The first paragraph
is undoubtedly prompted by the desire that all the faith-
ful should be benefitted by the presence of such sacred
objects, and that important sacred remains should receive
a greater reverence than they ordinarily receive if in
private possession.
AUTHENTICATION OF RELICS
Can. 1283
§ E. Publico cultu eae reliquiae in ecclesiis, quan-
quam exemptis, honorari possunt, quas genuinas esse
constet authentico documento alicuius S. R. E. Car-
dinalis, vel Ordinarii loci, vel alius viri ecclesiastici
cut facultas authenticandi indulto apostolico sit con-
cessa.
§ 2. Vicarius Generalis nequit, sine mandato spe-
cial!, rcliquias authenticas ediccre.
Can. 1284
Lccorum Ordinarii reliquiarn, quam certo non esse
authcnticam norint, a fidelium cultu prudcnter aino-
veant.
Can. 1285
§ 1. Sacrae reliquiae, quarum authenticitatis docu-
menta ob civiles perturbationes vel ob alium quem-
iibet casum interierint, publicae venerationi ne ex-
ponantur, nisi praecedat iudicium Ordinarii loci, non
autem Vicarii Generalis sine mandato speciali.
§ a. Reliquiae tamen antiquae in ea veneratione qua
hactenus fuerunt, sunt retinendae, nisi in aliquo pe-
culiar! casu certis argurnentis constet eas falsas vel
suppositicias esse.
Go >gle
1 ■ ■ , l , Original from
UNIVERSITY OF WISCONSIN
248 ADMINISTRATIVE LAW
Can. 1286
Locorum Ordinarii nc sinant, maxime in sacris con-
cionibus, libris, cphemcridibus vel commentariis (0-
vendae pietati destinatis, ex meris coniecturis, ex solis
probabiUbus arg^imentis vel praeiudicatis opinionibus,
praesertim verbis ludibrium aut despectum sapienti-
bus, quaestiones agitari de sacrarum rcliquiaruxn au-
thenticitate.
Only genuine relics may be exhibited for public venera-
tion in churches, even those of exempt religious. The
genuineness of a relic is ascertained by an authentic doc-
ument, issued either by a cardinal, or by the local Or-
dinary, or by a clergyman who has obtained an apostolic
indult authorizing him to authenticate relics.
Q
The Vicar General needs a special mandate to issue
such a document.
The authentication of ancient relics is a delicate and
difficult task, which requires a great deal of archaeological
and palaeographical knowledge. Hence the Cardinal
Vicar of Rome supports a special department, called lip-
sanothcca, for the purpose of authenticating relics. This
means was especially employed after 1870, when many
churches and convents were suppressed, shrines and reli-
quaries scattered and sold without the knowledge of the
proper authorities and imitations were not infrequently
sold by unscrupulous persons for filthy lucre's sake.
Hence the Vicariate of Rome warned bishops against
being too credulous concerning bodies which purported
to have been taken from the catacombs, even though they
were " authenticated M by an Italian bishop, for these ne-
farious traders did not shrink from forging documents."
8«Y'icariatui Urbii litt encycl., Jan. 17, 1881 {Coll. P. F., n. 1546).
( ".vmiIp Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
~
CANON 1286 249
Absolute certainty in regard to the genuineness of relics,
especially such as date back to a remote age, is next to
impossible. It would, however, be wrong for that reason
to reject all ancient relics. Many documents attesting the
transfer or translation of relics have been preserved, and,
besides, the immemorable custom of veneration must be
admitted as a living proof which amounts at least to
moral certainty. It may also be assumed that Divine
Providence watches over these sacred objects with special
care." Finally, even if there be fraud or erroneous
belief, the act of venerating a relic is always a relig-
ious act addressed ultimately to God, and hence can never
be entirely void of effectiveness.
The ecclesiastical authority who has to authenticate
relics must, if possible, investigate their origin or source,
and therefore demand a document. This document must
contain the signature and seal of the one who enclosed the
relics in its container. The latter (capse) must be sealed
with the same seal which is impressed on the document
of authentification. Generally also the make of the capse,
its artistic decoration and the material from which it is
made are indications of authenticity. If the signature,
seal and capse (or shrine) all point to some degree of
certainty, the document may be accepted as genuine.80 In
the same way the bishop must proceed when relics are
transferred from one church or country to another, pro-
vided, in the latter case, the Apostolic indult was obtained.
If no authentic document or no immemorable custom can
be shown, no document should be issued."
Can. 1284 obliges the local Ordinaries to withdraw
from public veneration all relics of which he knows for
35 Stc P«. 33. *• " S- **fe C., July ji, 1696, ad 4
a« S. C. Indulff., Dec. 16, 1749 (n. 1946).
(PrinzivalH, n. 187).
a
)[C
J ^ Original fro ni
UNIVERSITY OF WISCONSIN
250
ADMINISTRATIVE LAW
certain that they are not genuine. As stated, the signa-
ture and seal on the document and capse may be consid-
ered sufficient authentication. However, the signature
must be by hand, and not with a stamp (colla stampiglia) ,
unless the prelate is notoriously prevented from writing
by paralysis or other bodily infirmity.
Titular bishops are not empowered to authenticate rel-
ics.18 This privilege is expressly reserved to cardinals and
ordinaries in the strict sense of the term, though Vicars
Capitular or Administrators are not excluded. Relics
which are certainly spurious" the Ordinaries would do
well to withdraw and destroy.
However it may happen, as is evident from can. 1285,
that the authenticating documents are lost. This has hap-
pened under the Huguenots' terror in Toulouse, during the
French Revolution,40 and in Italy after 1870. Such rel-
ics may be exposed to public veneration only if the local
Ordinary deems it proper. The Vicar General is not
competent to grant this permission without being specially
commissioned to do so. If the faithful are deeply at-
tached to certain, especially ancient, relics and have a
special veneration for them, they may be retained and
venerated, provided their spuriousness cannot be proved
by solid arguments.41
The public discussion of the authenticity of relics
should be avoided and may be forbidden by the local Or-
dinaries if the argument rests on mere conjectures, prob-
abilities or prejudices, and if the methods employed are
apt to cast ridicule and contempt on sacred relics or their
SB S. C. I iulu i.: , Sept. 33, 1783
(PriDiivalli, n, 378)'
39 For iniitance. rrlios of the
Highpriest MelchUedek; S. Rit C,
Aug. 3. "687 (n. 1977)-
«oS. C. Indulg., Feb. 22, 1S47
(FrinzivalU, n. 581); S. Rit. C.t
June 33, 189J (n. 3779).
41 S. C. Indulg., Jan. .n, 1896:
Piua X, " Socrorum AnlutUum,"
Sept i# 1910, n. VI (A. Ap. S„ II,
664 f.).
jle
Original from
UNIVERSITY OF WI5C0NSI
CANON 1287 251
veneration. Such discussions should not be conducted in
sermons, or in books, magazines, and pamphlets intended
to foster devotion rather than critical research. This
well directed and carefully worded admonition, which is
partly taken from the Motu proprio " Sacrorum Antisti-
tum," of Sept. i, 1910, warns writers against setting up
merely probable statements for absolute truth, but it does
not forbid sober and respectful criticism based upon sci-
entific research. For the rule laid down in our canon ap-
plies to devotional books or periodical publications only,
— not to critical disquisitions and scientific reviews. Be-
sides, whilst it warns against the propagation of purely
probable and subjective views, it leaves a large margin for
solid arguments.42 The language employed by critics
should, of course, always be moderate and respectful.
EXPOSITION OF RELICS
c
Can. 1287
§ i. Reliquiae, cum exponuntur, in thecis seu capsis
clausae et obsignatae sint oportet.
§ a. Reliquiae sanctissimae Cruris nunquam in ca-
dem theca cum reliquiis Sanctorum publicae venera-
tioni exhibeantur, sed propriam thecam separatara
habeant
§ 3. Beatorurn reliquiae, sine peculiar! indulto, in
processionibus ne circumf erantur, neve in ecclesiis ex-
ponantur, nisi ubi eorum ofneium et Missa celebretur
ex Sedis Apostolicae concessione.
When relics are exposed, they should be enclosed in a
shrine, case or capsule, and scaled with the seal of the
authenticating prelate or official.
*3 The Bollandists cannot be seriously accused of making exaggerated
or unfounded statements.
G I Original from
OOglL UNIVERSITY OF WISCONSIN
C
|M
■--.
252 ADMINISTRATIVE LAW
Relics of the true Cross should never be exhibited to
public veneration together with relics of Saints, i. e., en-
closed in the same chest or shrine, but in a separate case.41
Relics of the true Cross and of other instruments of
Christ's Passion may be carried about in procession under
a canopy; but no other relics of Saints or Blessed may
on such occasions be carried in procession under the can-
opy at the same time."
Relics of Blessed persons may not be carried about in
procession without a special indult, nor may they be pub-
licly exposed in churches except where the Mass and office
is permitted by the Apostolic See.
RELICS IN THE BISHOP'S PECTORAL CROSS
Can. 1288
Sanctissimae Crucis reliquiae, quas in cruce pector-
ali Episcopus forte defert, ecclesiae cathedrali, ipso
detune to, cedunt, Episcopo successor! transmittendae ;
et si defunctus pluribus praefuerit dioecesibus, eccle-
siae cathedrali dioecesis, in cuius territorio supremum
diem obiit aut, si extra dioecesim mortuus est, ex qua
ultimo discessit.
Relics of the true Cross which may be enclosed in the
pectoral cross of a bishop, after his death belong to his
cathedral church, which shall hand them to the bishop's
successor. If the deceased bishop ruled several dioceses,
the relics pass to the cathedral church of the one in which
he died; if he dies outside the diocese, the relics belong
to the cathedral church of the diocese in which he passed
away. The reason for this enactment is to be sought
43 S. C. Indulg., Feb. ■*, 1847 ** S. Rit. C, May 37, 1826 (n.
<PrinzivaUI, n. 589). 3t>47> and ptoriu.
§le
k ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1289 253
in the scarcity of these relics which bishops should carry
about their person as a token of their dignity. But the
law only touches the relic, not the pectoral cross, or the
theca or capsule in which the relic is contained. The
theca may, after the sacred relic has been withdrawn, be
disposed of or sold, with due precaution, of course,
against profanation.45
precautions against the sale and profanation
of relics
Can. 1289
2. Sacras reliquias vendere nefas est; adeoque Or-
dinarii locorum, vicarii foranei, parochi aliive curam
animarum habentes, sedulo caveant ne sacrae reliquiae,
pracsertim sanctissimae Crucis, occasione maxime
hereditatum aut alienationis acervi bonorum, veneant,
neve in acatholicorum manus transeant.
§ 2. Rectores ecclesiarum, ceterique ad quos spec-
tat, sedulo invigilent ne sacrae reliquiae uilo modo
profanentur, neve hominum incuria pereant, vel minus
decenter custodiantur.
It is forbidden to sell relics, and hence the local or-
dinaries, rural deans, pastors, and all those who have
charge of souls shall take proper precautions lest sacred
relics, especially of the Holy Cross, be sold on the
occasion of hereditary transfer or public auction, and
see to it that they do not pass into the hands of non-
Catholics.
The rectors of churches, and others whom it concerns,
-
(e.g., the citstos sacrae supellectilis) should also take
great care lest sacred relics be exposed to profanation,
45 Vic. L'rhU lit. mcycl.. March >$, 1889 (Coll. P. F., n. 1699).
>Ie
f~* ^ 1 %\s* Originalfrorn
UNIVERSITY OF WISCONSIN
254 ADMINISTRATIVE LAW
or lost through carelessness, or preserved in an unbe-
coming manner.
As mentioned above, the impious custom of selling
relics was practiced at times for gain. Often also well-
meaning Catholics bought relics from traders in order
to save them from profanation. But even this is for-
bidden because of the danger of simony and of aiding this
impious traffic. All the faithful are in duty bound to
denounce to the Ordinary any place where relics are ex-
hibited for sale. He will then take such steps as he
deems proper.'
40 S. C. Indulg.. Dec. ax. 1878 (Coll. P. R, n. 1505).
rtnomc n»>nar *"
< *r\r*nl*> Original from
jf^OOglL UNIVERSITY OF WISCONSIN
TITLE XVII
SACRED PROCESSIONS
DEFINITION AND DIVISION
Can. 1290
§ z. Nomine sacrarum processionum significantur
sollemncs supplicationes quae a populo fideli, duce
clcro, fiunt cundo ordinatim de loco sacro ad locum
sacrum, ad excitandam ndelium pietatem, ad commem-
oranda Dei beneficia eique gratias agendas, ad divinum
auxilium implorandum.
§ a. Ordinariae sunt quae Stan's diebus per annum
fiunt ad normam librorum liturgicorum vel consuetu-
dinum ecclesiarum; extraordinariae, quae aliis publi-
cis de causis in alios dies indicuntur.
Sacred processions are solemn invocations made by
the faithful people marching in an orderly manner, un-
der the leadership of the clergy, from one sacred place to
another, for the purpose of arousing devotion, praising
God's benefits, thanking Him, and imploring His help.
Ordinary processions are those held on slated days
throughout the year, according to the sacred liturgy or the
custom of the churches; extraordinary processions are
those held for some other public cause on other days.
Processions are a popular element in almost every form
of religious worship.1 The Roman Ritual specifies as or-
1 Cfr. Cath. EncycL, XII. 446 ff. j. v. " Procewion."
255
►ogle
Original fro ni
UNIVERSITY OF WISCONSI
~
256 ADMINISTRATIVE LAW
dinary processions those held on Candlemas Day (Feb.
2). on Palm Sunday, the so-called greater Litanies of
April 25, and the Rogation Days preceding the feast of
the Ascension. Besides these, we may designate as or-
dinary the procession on Maundy Thursday, the return
on Good Friday, and the procession for the holy fire
on Holy Saturday. Funeral processions may also be
called ordinary. Moreover, as the text also mentions as
ordinary the processions introduced by ecclesiastical cus-
tom, it is evident that so-called field processions, as
still in vogue in Switzerland, and processions from one
church to another in honor of a special patron, must
likewise be reckoned among the ordinary ones.
Extraordinary processions, according to the Roman
Ritual, are all those held for the purpose of obtaining
rain, or fair weather, of driving away storms, the three
assigned for times of famine, plague, and war, one for the
occasion of any calamity, one for thanksgiving, and one
for the translation of relics.
The essential feature of a sacred procession certainly is
that it is held under the leadership of the clergy. Hence
a mere parade held for any purpose, even for the trans-
lation of sacred images from house to house, in which
the clergy are mere participants without sacred vestments,
cannot be called a procession in the liturgical sense.2
Besides, even a religious procession if arranged and led by
laymen, cannot be styled a sacred procession.
A sacred procession must be conducted in an orderly
manner. This rule has a double meaning, of which one
is described in can. 1295, and has reference to due rever-
ence and becoming conduct, while the other is that the
order of the participants be according to the rules of
precedence, regarding which see can. 1295.
a S. Rit. C, Aug. 30i 1870 {Dec. Auth., n. jai7>-
□
'-"■
>Ic
( * ^ -. %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 1 29 1
257
CORPUS CHRISTI PROCESSIONS
Can. 1291
§ 1. Nisi aliter ferat immemorabilis consuetudo, vel
locorum circumstantiae, prudenti Episcopi iudicio,
aliud exigant, die festo Corporis Christi unica tantum
sollemnisque per publicas vias processio in uno eo-
demque loco fieri debet ab ecclesia digniore, eique
clerici omnes religiosaeque virorurn familiae, etiam
exemptae, et laicorum confraternitates interessc de-
bent, regularibus exceptis qui in strictiore clausura
perpetuo vivant, aut a civitate ultra tria millia
passuum distent.
§ 2. Ceterae paroeciae et ecclesiae etiam regulares
possunt, intra octavam, proprias processiones extra
ecclesiae ambitum agere ; sed ubi plures sunt ecclesiae,
Ordinarii loci est dies, horas ac vias praestituere
quibus suam quaeque processionem agant.
§ 1. Unless there be an immemorial custom to the
contrary, or unless local circumstances in the prudent
judgment of the bishop demand a deviation from the
rule here laid down, only one solemn procession is per-
initted in the same place through the public streets on
the feast of Corpus Christi. This procession is to be
arranged and led by the more prominent church of the
respective city or town, and all the clergy and male
religious orders, including the exempt, as well as the con-
fraternities of laymen, must attend it. Only those regu-
lars who live perpetually in strict enclosure, or dwell
three thousand paces from the city, are excused from par-
ticipation.
The solemn Corpus Christi procession is to be held
on the following Sunday, if the feast is transferred lo
gle
Original from
UNIVERSITY OF WI5CGNSI
258 ADMINISTRATIVE LAW
that day,8 as is the case in our country. Therefore, even
taking into consideration § 2 of our canon, it would
clearly be against the intention of the Church to hold
the principal procession on Corpus Christi Thursday
and a less pompous one on Sunday.
There must be only one public procession in the same
town or city, unless an immemorial custom or special
circumstances should induce the bishop to permit more.
There is not much danger in our country, especially in
the large cities, of having too many processions.
The dignior ecclcsia, i. e., the more distinguished
church, should lead the procession. Dignior undoubtedly
is the cathedral church, which follows the collegiate
church, provided it is also a parochial church.4 It ap-
pears but just that a parochial church should be pre-
ferred to a collegiate church if the latter is not a parish
chuxch. Among the parish churches the more ancient
one takes the lead over those established later, according
to the rule : Prior in tempore prior in iure.
In this public procession the entire secular and regular
clergy, as well as all confraternities, of men as well as
women, are bound to participate. Religious congrega-
tions and orders of women need not attend, though Sis-
ters who do not live in enclosure way do so if they wish ;
— at least the text does not exclude them because it only
mentions those who are obliged to assist (interesse
debent). As to the regulars, whether exempt or not, the
Council of Trent ° had already made it obligatory for
them to attend, with one exception, to be explained fur-
ther down (see next paragraph). The Council employs
the phrase, "vocati acccdant," which presupposes some
»S. Rit C, June 24. 1911 ad VI 4 S. Rit. C, Jan. 11, 168 1 (a.
(n. 4J73). 1657)-
5 Sew. 25, c. 13, de reg.
§le
£ * ^ 4 -J,-. Original from
UNIVERSITY OF WISCONSIN
-
-'
■
pi
'.■-.
CANON 1291 259
kind of invitation. The Code discards this clause, and
hence no invitation is required, though the leading church
may reasonably be expected to indicate or announce the
hour of holding the procession and the place where it is
to start.
The exception for regulars is based upon enclosure and
distance. The enclosure, of course, is to be understood
of the so-called papal enclosure, as stated under can. 597.
This was already enacted by the Council of Trent and
confirmed by later interpretations, the substance of which
is that all regulars, no matter how exempt they may be,
must attend the Corpus Christi procession, unless they
live under strict perpetual enclosure or can show a privi-
lege granted after the Council of Trent, and directly, i, e.,
not obtained by way of communication." Such privileges
were granted to the Society of Jesus, to the Discalced
Carmelites, the Theatines and the Scolapii.7 The Code
does not annul these privileges by any contrary clause.
The great Mendicant Orders of St. Francis and St. Dom-
inic are obliged to attend the Corpus Christi procession,8
as are also the Augustinians, Calccati as well Discalceati,
and the Celestinians.* As to the Benedictines there are
two decisions worthy of note: the Cassinese monks need
not take part in any procession except that of Corpus
Christi, which they must attend, even though there be
but six monks living in the monastery.10 Note that no
communication of privileges avails in this case. But
what about enclosure? The Benedictines have a papal
e Urban VIII, n Nuper," Not. 17, 0 S. Rit. C. Dec. 9, 163B; Sept. j,
1638, I 1 f.; S. Rit. C Sept aB, 160a: Aug. 4, 1674 ad 1 (on. 661,
1658 (n. 1096). 1244, 1716).
T Piatut M., Praelectiones Juris 10 S. Rit. C., June 10, 1602; Oct.
Regul., II, p. 41. a, 1683 Um. 99, 1716).
8 S. Rit. C, Mar 10, 1594; Mar
9, 1693 (nn. 48, 1895).
jle
f* -» ■» -iL-. Original from
UNIVERSITY OF WISCONSIN
26o ADMINISTRATIVE LAW
enclosure, but no strict enclosure in the sense of the text,
like the Carthusians and the Camaldolese Hermits. The
decision concerning the Cassinese Benedictines mentions
custom, but the Corpus Christi procession is expressly
excepted. The same is true of the Celestinians and may
safely be applied to other monastic bodies of regulars;
because if the enclosure means something, it certainly
must be applied to that case also, the Corpus Christi
procession, as a special token of belief in that mys-
tery and a public profession of the same against
heresy.
The next reason for exception is distance. The gen-
eral decree of Urban VIII, as restated by the S. Con-
gregation, mentions Ultra medium milliare a civitate"
i. *., over half a mile from the city. Our text has 300
passus. A passus, according to Roman reckoning, is
485 English or American feet, so that 3000 passus would
be about 14,550 feet, or 1,290 feet less than three Eng-
lish statute miles.11 In round figures, therefore, we may
say. three English (not geographical) miles, especially
since the text says, ultra, above.
The point from which the distance must be reckoned
is simply stated as u the city." But in a large city there
may be a considerable difference between the different
points from which distance may be measured. If the city
limits are taken as the starting point, the three miles would
be entirely outside the boundaries. This, we believe, is
the meaning of the text, for it obliges the entire clergy
of a city or town to attend the procession, and one de-
cision says that all the Friars Preachers and Friars
Minor intra septa moenium civitatis must be present.13
Therefore not the church from which the procession
11 Cfr. Ramsay-Lanciani, Roman I2S. Kit. C, May io, 1594 (n,
Antiquities, 1901. p. 46* '• 48)-
v ,|,, Original from
UNIVERSITY OF WISCONSIN
>gk
CANON 1292 261
starts, but the city limits, is the point from which the
distance is to be calculated. The direction, of course,
is intended in the direct or air line, i. e.t within a radius
of three miles outside the city limits.
It may be added that the obligation of assisting at
the Corpus Christi procession binds the secular and regu-
lar clergy only if the procession is held in the open air,
per publicas vias, and the term regular must be taken in
the strict sense, to the exclusion of such religious as are
exempt by a special indult.
§ 2. The other parishes and churches, including those
which are in charge of regulars, may have their own
processions outside the church during the Octave of
Corpus Christi; but the local Ordinary should assign the
day, the hour and the route for each parish. This rule
was established in order to avoid unpleasant encounters.
It
In some cases even the side of the wall or street had to
be determined " and pastors were ordered not to invade
the boundaries of other parishes.14
other processions
Can. 1292
Ordinarius loci, audito Capitulo cathedrali, potest
ex publica causa extraordinarias processiones indi-
cere; quibus, sicut et ordinariis ac consuetis, ii omnes
interesse debent de quibus in can. 1291, § 1.
The local Ordinary, after having heard the advice of
his cathedral chapter, may for a public cause order ex-
traordinary processions, which, like the customary and
ordinary ones, must be attended by those mentioned in
can. 1291, § 1.
is S. Rit C, June u, 1594 (n- « S. Rit. C, Jan. 11, 1681 (a.
oogle
^ ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
262 ADMINISTRATIVE LAW
Dl
If the Ordinary is obliged to hear the advice of the
chapter and cannot lawfully order a procession without
it, this is a fortiori true of the Vicar Capitular or ad-
ministrator. Should a procession be ordered without
their advice, the canons cannot be compelled to attend
it.15 This rule must also be followed in our country,
where the consultors should be asked collegialiter. This
does not, however, mean that the bishop cannot order a
customary or extraordinary procession without first hear-
ing the advice of the consultors. He may order a pro-
cession to be held in any parish; but he cannot oblige the
whole clergy, secular and regular, to attend it if he has
not previously asked the chapter or the consultors.
However, it is sufficient to ask their advice; their consent
is not required.16 Besides the bishop no one else in the
diocese is entitled to order a procession, but in the ab-
sence of the bishop the Vicar General may do so, pro-
vided he has asked the advice of the chapter."
The extraordinary processions which the local Ordi-
nary may order must be for a public cause, or, as is
sometimes stated, 18 pro bono publico et publico honore.
This means that the public interest or the welfare of
the community must be at stake, as is evident from the
enumeration of these extraordinary processions in the
Ritual. They cannot be ordered for mere display. If
a procession is customary on the occasion of the entrance
of a new bishop, this may be ordered for all, including
the regulars, though without threatening censures.19 An
extraordinary procession may also be ordered on the
is S. C. EE. et RR-. May n, 1663 18 S. Rit C, July 27. i6<>0 (n.
(Bizzarri, I. c, p. 261). 273).
lflS. Rit C, March 2%, 1626 (n. 10 S. C. C, July 11, 1750 (Rich-
394). tcr, Tri4., p. 416. n. 9)-
itS. Rit. C, Jan. 14. '617. •«* <J
Sept aS, 1630 (nn. 346, 545).
►ogle
£ * ^ ^ %\j* Original from
UNIVERSITY OF WISCONSIN
CANON 1293 263
occasion of a Eucharistic Congress, or a Congress in
honor of the Sacred Heart of Jesus, or an important
meeting of Catholics.
Those obliged to participate in these extraordinary pro-
cessions are the same as mentioned in can. 1291 ; hence,
first of all, the whole secular clergy, provided the Or-
dinary has duly intimated his intention to that effect.
Indie etc, to order, certainly implies a lawful summons.
The regular clergy, too, must be present, under the same
conditions as stated above. We will add that the monks,
unless they can prove a legitimate contrary custom, must
also be present. Thus it has been decided concerning
the monks of St. Basil and St. Benedict in a case from
the diocese of Paderborn.20 The time or hour for the
procession must be announced by the Ordinary, who may
suit himself about it." The lay confraternities also must
attend these processions if they have been summoned by
the Ordinary."
religious not allowed to hold public processions
without the permission of the ordinary
Can. 1293
Religiosi etiam exempti nequeunt extra suas ec-
clesias et claustra processiones ducere sine Ordinarii
loci licentia, salvo praescripto can. 1291, § a.
With the exception of the Octave of Corpus Christi,
religious, even though exempt, are not allowed to hold
processions outside their churches and cloisters without
the permission of the local Ordinary, who may grant this
»S. Rit. C, Tun* 33, 1670: Dec. 21 S. Rit. C, Sept. 2$, 1820 (n.
22, 1770, ad a (nn. 2116, 2490). 2608).
U S. Rit C, June 17, 1606 <n.
ai;).
jle
/".,., ,L» Original fro ni
UNIVERSITY OF WISCONSIN
a64 ADMINISTRATIVE LAW
permission without asking the consent or advice of his
chapter or consultors, nay, even against the will of the
pastor or collegiate chapter,23 and once for all. He may
also prescribe or change the route the procession has to
take.24 If the religious have obtained a special papal
indult, or can prove a legal custom, they do not need the
permission of the Ordinary.28 Also, if they have obtained
a direct privilege, or can prove that the custom existed
after the year 1628, no permission is required.28 But if
they have neither the Ordinary's permission, nor a privi-
lege, nor an indult, nor a legitimate custom in their favor,
they are allowed to hold processions only within their
church or cloister, always excepting the Octave of Corpus
Christi. However, a general decree of 1658, Sept. 28,
states that if they have no cloister they may lead a pro-
cession even outside the church, provided they keep to the
walls of the church and re-enter through the same or an-
other door of the same (non extra ambitum ccclesiac).
PASTORS AND THE CLERGY IN RELATION TO PROCESSIONS
V
Can. 1294
§ 1. Parochus vel quivis alius nequit processiones
novas inducere aut consuetas transferre vel abolere
sine Ordinarii loci licentia.
§ 2. Processionibus alicuius ecclesiae propriis in-
teresse debent omnes clerici eidem ecclesiae adscripti.
■"■
§ 1. Neither the pastor nor anyone else can introduce
new, or transfer or abolish the customary processions
without the permission of the local Ordinary.
aaS. Rit. C, March It, 1690; *B S. Rit. C. Nov. u, 1676:
June 13, 1673; Aug. 31, 1697; (nn. April 8, 170a (n. 1581, 1099).
1824. 1573. 1980)* 20 S. Rit. C, Sept. 28. 1658; Dec.
2* S. Rit. C, Nor. 24, 1691 (a. 19, 1671, ad 1 (no. 1096, 1440).
1859).
jle
t * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 1295 265
The term quivis alius includes cathedral and collegiate
chapters, as well as confraternities, so that the prohibi-
tion also applies to them.27 If the Ordinary wishes to
transfer a procession, for instance, on account of rain,
the chapter would have to be asked.28 Our canon is silent
about the advice of the chapter, we believe with good
reason. It goes without saying that also pastors or re-
ligious orders or congregations must abide by this law
concerning processions.80
§ 2. At processions which are peculiar to any church,
all the clergy belonging to the respective church must be
present. The term adscripti means ascribed or assigned,
and, in canonical parlance, includes all the beneficiaries
of a church. All who hold a benefice in a church, unless
they are iubilati, must attend the processions of that
church.80 In our country all the clergy assigned to a
church are under the same obligation. However, the
bishop may exempt such as are employed in other occu-
pations, for instance, in mission work, teaching, etc.
One who has been granted a vacation need not trouble
his conscience concerning this obligation.
order of processions
Can. 1295
Curent Ordinarii ut sacrae processiones, exstirpatis,
si qui sint, malis usibus, ordinate procedant eaque
modestia ac reverentia ab omnibus perficiantur, quae
piis ac religiosis huiusmodi actibus maxime convenit.
»7 S. Rit C, Nov. 22, 1681, ad 2, z» S. C EE. ct RR., March 14,
8; Jan. ia, 1704, ad aa (nn. 1664, 1879 (.A. S, S., XI, 395 ff.).
J133). 80 S. C. C Feb. 27. 1677: Bencd.
28 S. Rit C, Sept. 3, 1695; July XIV, Dt Sy%. Dioec, III, 8. 9 *•
21, 1696 (nn. 1933, 1947)-
jle
k ,|Y> Original from
UNIVERSITY OF WISCONSIN
266 ADMINISTRATIVE LAW
The Ordinaries shall take care that any abuses that
may have crept in are eliminated and that the processions
proceed in an orderly manner, with the modesty and
reverence suited to such pious and religious acts.
An orderly procession presupposes an orderly arrange-
ment according to rules.81 The participants must walk
two by two, with the Cross leading the procession. After
the cross-bearer follow the girls and boys, then the
women and men, then the confraternities according to
rank, then the religious according to the rules of prece-
dence set forth in can. 491, then the secular clergy, and
finally the officiating minister, prelate or priest. Here
may be supplied what has been omitted under canons
106 and 491. The cathedral chapter precedes, or rather,
strictly speaking, follows the collegiate chapter, and the
chapter or body of regulars with their abbot or prelate
must walk among the religious." Among the secular
clergy priority of ordination decides the order of preced-
ence, to which also the " doctors " must defer.88 Each of
the religious orders or congregations must march sepa-
rately under its own cross, if it carries one, and not pro-
miscuously with other religious or the secular clergy.
This rule also binds magistri " ( i. e., doctors of divinity)
in the order of Preachers.
There should be no dancing or fighting, no eating or
drinking, and no unseemly noise.85 For this reason pro-
cessions should not last too long or cover a distance of
more than six miles, especially if the roads are bad or
walking is difficult."
SlCfr. Pont. Rom., 1. II, c. 32, n. 34 S. Rit. G, Ju»y 6, 1593; May
a; Rit. Rom., tit. IX, c. I. 10, 1594; July 10, 1638 (nn. 33, 48,
aaS. Rit. C.t Dec. aa, 1770 (n. 647)-
juqo ad a). « S. Rit. C Jan. SI, 1690 n 5
saS. Rit C, April 4, 1626 (n. (a 1821); Rit. Rom., I ft, ft. 4
397). S«S. Rit. C, March 7, i7*J (n-
2109).
jle
k ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
TITLE XVIII
SACRED VESSELS, UTENSILS, VESTMENTS
ETC (SACRA SUPELLEX)
The Latin term sacra supellex includes all sacred ves-
sels, utensils, vestments, linens, and ornaments which are
used for sacred functions, especially for the celebration
of the Mass. The reader should not expect a canonist
to go into details with regard to these objects, as they
strictly belong to the domain of liturgical writers, who,
however, curious to say, seem to evade a definition of
the term sacra supellex}
care and maintenance
Can. 1296
§" i. Sacra supellex, praesertim quae, ad normam
legum liturgicarum, benedicta aut consecrata esse
debet quaeque publico in cultu adhibetur, caute cus-
todiatur in ecclesiac sacrario aliove tuto ac decent!
loco, nee ad usus profanos adhibeatur.
§ a. Ad normam can. 152a universae sacrae supel-
lectilis inventarium fiat et accurate servetur.
§ 3. Circa materiam et formam sacrae supellectilis,
serventur praescripta liturgica, ecclesiastica traditio
et, meliore quo fieri potest modo, etiam artis sacrae
leges.
■"■
■■■
1 We consulted De Hcrdt, Van borat, and several books written in
der Slappen, Martinucci, Wapel- the vernacular.
267
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-
p
268 ADMINISTRATIVE LAW
Can. 1297
Nisi aliter sit provisum, qui officio tenentur reparan-
dac ecclesiac ad normam can. xi86, debcnt quoquc ci
providere de sacra supellcctili ad cultum necessaria.
Articles of sacra supellcx, especially when blessed or
consecrated as required by the liturgical rules*, and used
for public worship must be carefully guarded in the
sacristy of the church or in some other safe and decent
place, and may not be used for profane purposes.
An inventory should be made of the whole stock and
diligently preserved.
As to the material and form of the sacra supellex, the
liturgical laws, ecclesiastical tradition, and, as far as
possible, the rules of sacred art should be observed.
Chalice and paten must be consecrated by the bishop,
or whoever is authorized to perform this function.
The following articles must be blessed: the ciboriunv*
(and most probably also the lunula? because it comes
into immediate contact with the Blessed Sacrament) ;
the vestments used by the priest at sacred functions,
particularly in saying Mass, to wit: amice, alb, cincture,
maniple, chasuble, palla, corporal and altar linens.
The following objects may be blessed, though it is
not prescribed by the rubrics: the ostensorium, the cus-
todia or pyx for the lunula; dalmatics, cope, and surplice.
Not to be blessed are the purificators,* the chalice veil,
a The formula is cither that of the lunula.- which so enclose the S. Host
Potttif. Rom,, tit. De Bened. Tuber- that the glass directly touches the
nocu/i ■.;.- c Vaacuti pro SS. Each. aacrcd specie*. Vet, says Gasparri
Comervmnda, or (hat of the Rit. (/. c, n. io?o), the custom i* wide-
Rom., tit. VIII, c. aj (ed. Pustet, spread in France; we may add, also
W%, p. 76*). in the U. S.
3Gasparn, De SSma Euch., n. * S. Rit.- C, Sept. 7, 181 6 ad 12
ioji; S. Rit C, Feb. 4. 1871 (a. (n. '57')-
J2F34, ad IV) forbids the use of
jle
k .,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 1297
269
—
a
N
the burse, the antipendium, candlesticks, cruets, censers,
etc.
Concerning the consecration of the chalice and paten
it may be noted that the formula requires three signs of
the cross, one at the word consecrare, the other at the
word sanctificare, the third at the bcncdictioncm. If the
last were omitted, there might be a doubt as to the
validity of the consecration, although the S. Congre-
gation would not answer the question directly.1 It
is more probable that the consecration would be valid,
for the act of consecration proper is completed by the
two anointings with holy chrism, made with the twofold
sign of the cross, and the same S. Congregation has de-
clared that chalice and paten are validly consecrated even
though but one sign of the cross was made on them with
holy chrism, either at the consecrare or sanctificare:9
From this it appears lawful to conclude that, even though
the last or third sign of the cross were omitted, the con-
secration would be valid. If the cup (cuppa) of the
chalice be very deep, so that the consecrator cannot reach
the bottom, which he should do when anointing from one
rim through the center or bottom to the other rim, with
the thumb, he may reach as far as possible with the
thumb, rather than use the middle finger, and thus ob-
serve the rubric."
The sacerdotal vestments require a special blessing.
Therefore, if a priest should, in good faith, wear un-
blessed vestments, they would not become blessed by
the mere act of wearing thern at Mass.8 Priests who
are allowed to bless sacred vestments and linens must
»S. Rit. C, June 14. 1873 (n-
3305): " iwnctnr rubrica Pont, Ro-
mani."
flS. Rit C. Dec. 2. 188a (n.
356o).
7 S. Rit. C, Sept ia, 1884 (n.
36-0).
b S. Rit C. Aur. 3i, 1867. *i
VII (n. 3'6a).
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
270
ADMINISTRATIVE LAW
use the formula given in the Roman Ritual, and are not
allowed to use the Pontificate for single pieces." Thus
a palla and corporal should be blessed together, and if
onJy one of them is to be blessed, the formula prescribed
in the Roman Ritual should be used.10
For the rest wc refer to the rubrics in the liturgical
books and to the authors who have written on the subject.
Can. 1297 applies the rules concerning the obligation
of repairing churches as laid down in can. 1186 also to
the support of the sacra supellex, which is necessary for
divine worship. Hence, unless other provisions have
been made, the same persons are bound to provide for the
upkeep and repair of the sacred vessels, utensils, and
vestments. There is a good rule stated in one decision,
viz., if the parishioners cannot afford to contribute money,
they should contribute their labor.11 This is often done
by the women, especially where there is an Altar Society
which busies itself with embellishing the house of God.
If other means fail, the beneficiaries of the church are
obliged to share the burden pro rata.12 Finally, Catholic
storekeepers and pawnbrokers are admonished not to
buy or sell any sacred utensils, especially if there is reason
to suspect theft."
CARDINALIT1AL, EPISCOPAL, AND CLERICAL SUPELLEX
In order to understand these canons it will be well to
take a historical note from the Constitution of Benedict
XIV, which directly refers to our subject.1* Whilst at
Avignon, the Popes erected a magnificent chapel in their
vs. Kit. C, March 16, 1876; Dec
2, 1861, ad 1 (nn- jJ9a. 3 5 ' 3 ' ■
10 S. Rit C Sept 4. 1680 (n.
3534); Rit. Rom., tit VIII, c. a*.
11 S. C. EE. ct ITR., Dec 10,
1841 (Bizzarri, I. c, p. 477 (.),
nS. C. C, March 13, 1657;
Bcned. XIV, /-I'll.. 100, n. 13.
IS Bened. XIV, lnslit., 60. n. 3.
14 " lnttr orduaj," April /a, 1749.
>Ie
Original fro m
UNIVERSITY OF WISCONSIN
CANON 1298 271
palace, and after their return to Rome, they retained this
custom in the Vatican palace, often performing solemn
functions there which were formerly held in the basil-
icas, assisted by the Cardinals and the whole papal
chapel. The Cardinals, too, held pontifical ceremonies
requiring a more than common sacra supellex, which was
partly purchased by the prelates, partly by the papal
treasurer. The former were from time immemorial ac-
customed either to leave or bequeathe their vestments,
etc.. to the papal chapel,18 and thus established a prece-
dent which might be called a juridical prescription. Ur-
ban VIII formulated the written law " which, in sub-
stance, has entered our Code.
Can. 1298
§ 1. Defuncti S. R. E. Cardinalis, qui in Urbe domi-
cilium habebat, quamvis Episcopus suburbicarius aut
Abbas nullius esset, quaelibet sacra supellex, exceptis
annulis et crucibus pectoralibus etiam cum sacris reli-
quiis, aliaeque res omnes stabiliter divino cultui des-
tinatae, nulla habita ratione qualitatis et naturae redi-
tuum quibus comparatae sint, cedunt pontificio sacra-
rio, nisi Cardinalis eas donaverit aut testamento reli-
querit alicui ecclesiae vel oratorio publico vel loco pio
vel alicui personae ecclcsiasticae seu religiosae.
§ 2. Optandum ut Cardinalis, qui huiusmodi facul-
tate uti velit, saltern ex parte praeferat illas ecclesias,
quas in titulum, administration em seu commendam
obtinuerit.
This law commands: (1) that the entire sacra supellex
and everything that was permanently destined for divine
IB Julius III, ** Cum tiOti nobis," l« Urban VIII, " Aequum est,"
June 26, 1550. July 19, 1642.
*Ic
J , Original from
UNIVERSITY OF WISCONSIN
272 ADMINISTRATIVE LAW
worship, found in the possession of a cardinal at the time
of his death, if that cardinal had his domicile in Rome,
even though he was a suburbicarian bishop or an abbot
nullius, belongs to the papal satristy. Urban VIII
excepted some things, viz., one tunicella for each cardinal
deacon, one chasuble for each cardinal priest, one cope
for each cardinal bishop, candlesticks, ewer, and basin.
But none of these things are excepted by the new Code,
and consequently all may be claimed by the papal sac-
ristan. (2) Rings and pectoral crosses, together with
the sacred relics enclosed therein, must not, but may be
ceded to the pontifical sacristy.17 (3) The entire sacra
supellex, with the exceptions mentioned, belongs to the
papal sacristy, without any regard as to the quality and
nature of the pecuniary means from which said sacra
supellex was acquired, i.e., it matters not whether the
cardinal bought it from church revenues, or from his
patrimonial income, or obtained it by donation or be-
quest. (4) But the Code permits cardinals de curia
to donate or bequeathe their sacra supellex to a church,
or a public oratory, or a pious institution, or any ecclesi-
astical or religious person. This was the point which
gave occasion to the aforesaid constitution of Benedict
XIV.
§ 2 expresses the wish that, when such a donation or
bequest is made, preference be given to the church which
the Cardinal held as titular possessor, administrator, or
commendatory abbot.
Sacra supellex here comprises the following articles:
mitres, chasubles, copes, tunics, dalmatics, sandals, gloves,
sacerdotal vestments, chalices, patens, sacred vessels of
every kind (pyx, ostensorium, thimble) especially those
iTCfr. Piui IX, "Qmum iUud," June I, 1847 (A. S. S., Ill, a8i).
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 1299 273
consecrated or blessed, also oilstocks, ewer and basin,
cruets, procession cross, candlesticks, crozier, faldstool;
also the Missal, Pontifical, Canon, and Gradual.18
a
u
w
Can. 1299
§ 1. Defuncti Episcopi residentialis, etiamsi cardin-
alitia dignitate fulserit, sacra supellex cedit ecclesiae
cathedrali, exceptis annulis et crucibus pectoralibus
etiam cum sacris reliquiis, salvo praescripto can. 1288,
et iis omnibus utensilibus cuiusvis generis quae legi-
time probetur ab Episcopo defuncto comparata fuisse
bonis ad ipsam ecclesiam non per tinentibus neque con-
stet in ecclesiae proprietatem transiisse.
§ 2. Si quando Episcopus duas vel plures dioeceses
successive rexerit aut simul praefuerit duabus vel
pluribus dioecesibus unitis aut in perpetuam adminis-
trationem concessis, cathedralern ecclesiam habentibus
propriam et distinctam, quae sacra utensilia constiterit
reditibus unius tantum dioecesis fuisse comparata, ea
eiusdern cathedrali ecclesiae cedunt; secus dividi
debent, aequis partibus. inter singulas ecclesias cathe-
drales, dummodo dioecesium reditus ne sint divisi,
sed unam episcopalem mensam perpetuo constituant;
si vero reditus divisi sint ac separati, divisio fiat inter
singulas ecclesias cathedrales pro ratione fructuum
quos in singulis dioecesibus Episcopus perceperit ac
temporis quo eisdem praefuerit.
§ 3. Episcopus obligatione tenetur inventarii sac-
rorum utensilium authentica forma conficiendi, in quo
pro rei veritate quando acquisita sint, exprimat, dis-
tincteque describat si qua non ex ecclesiae reditibus
ac proventibus, sed ex propriis bonis vel ex donatione
18 Pittt IX, " Qu*m Mud," 3. HI.
"-.
jle
% ,|rt Original from
UNIVERSITY OF WISCONSIN
274 ADMINISTRATIVE LAW
sibi facta comparaverit ; secus omnia reditibus eccle-
siac comparata praesumuntur.
Can. 1299 lays down a rule concerning the sacra supel-
lex left by a rcsidental bishop, even though he may have
been a cardinal. It excepts the rings and pectoral crosses,
but as to the relics contained therein, it refers to can.
1288, which concerns a relic of the Holy Cross. Other-
wise all articles of a bishop's sacra supellex belongs by
law to the deceased prelate's cathedral church, with the
exception, however, of such sacred appurtenances (om-
nibus utensilibus) which were bought by the deceased
bishop with his own money and such utensils as have not
passed into the possession of the church. However, for
each of these two kinds of sacra supellex there must be
legal proof that the money was not church money and
that the ownership was acquired by the church. How is
that proof to be furnished ?
§ 3, following a letter of Pius IX, n Quum aliud,"
says that bishops are strictly obliged to draw up an
inventory faithfully describing their sacred utensils, both
as to the time when they were bought — because accord-
ing to can. 1511, § 2, thirty years' possession suffices to
acquire such objects — and also as to the nature of the
revenues with which they were bought. If this is done
conscientiously and accurately, there should be little dif-
ficulty to carry out the present law, which, be it said by
the way, involves a strict obligation. If no inventory is
found, the presumption (pracsumptio iuris) is that the
entire sacra supellex was purchased with church money.
§ 2 describes what is to be done in the case of a bishop
who ruled several dioceses, either as titular bishop or
perpetual administrator. The supposition is, of course,
that each of these dioceses has its own cathedral church.
>Ie
j , Original fro m
UNIVERSITY OF WISCONSIN
CANON 1300
275
"
If the bishop has made the required inventory, it will
be easy to decide which of the cathedral churches fur-
nished the money for the sacra supellex. If only one
of them furnished the money, it has an exclusive claim
to the articles in question. If two or three dioceses con-
tributed to the purchase, there are two possibilities:
If no separate accounts are kept but all revenues go to
constitute the income of the bishop (tnettsa episcopalis),
then the sacra supellex accrues to the different cathedral
churches in equal shares.18 But if the different dioceses
keep separate and distinct accounts of their revenues,
then the sacra supellex is to be divided and apportioned
according to the salary, cathedraticum, etc., the bishop
received from each diocese, and according to the length of
time he governed each diocese. Of course, unless books
and records are carefully kept, there may be difficulties
in making the division.
Can. 1300
Quae in can. iagg praescripta sunt, applicentur
quoque clerico qui in aliqua ecclesia beneficium saecu-
lare vel religiosum obtinuerit.
This canon applies the enactment of can. 129c) to
clergymen who held either a secular or a religious benefice
in any church during their lifetimes. It is a timely re-
minder to the clergy of their legal status with regard to the
sacra supellex, which received attention from the earliest
times and is frequently mentioned in the Decretals.30 Thus
Alexander III sanctioned a previous law which provided
that all the goods appertaining to and acquired by a
church must and may be claimed by said church. Pius V
i» Wc suppose this holds also with
regard to pro-cathedrals.
20 Cf. Can. A tost., 40; c. 12, X,
III. 26.
;Ie
Original fro rn
UNIVERSITY OF WI5CGNSI
276 ADMINISTRATIVE LAW
reiterated this regulation and explained to the papal col-
lectors that they had no right to claim these goods for the
camera spoliorum, but should leave them to the church
whose beneficiary died.21 The same rule applied to the
canons and beneficiaries of St. Peter's basilica, no matter
whether they still held their offices at the time of their
death or not."
This canon is, strictly speaking, applicable only to
clergymen who held a church benefice, either secular or
religious, but we venture to say that the mind of the legis-
lator also includes those who, though not beneficiaries in
the strictly canonical sense, have been employed either
as pastors or curates (assistants), or otherwise. In other
words, the law is applicable also to most clergymen of
our country. The reasons are almost the same : the
sacra sitpellex should not pass into profane hands and the
churches should not be deprived of the necessary furni-
ture. Besides, there is no doubt that many, perhaps
most sacred vessels, utensils, vestments, etc., are bought
with money contributed by the congregation or the mem-
bers of the altar society, and such supellex, therefore,
stricLly belongs to the church. On the other hand, we
would not deny that sometimes gifts are made for merely
personal motives, for instance, by parents, relatives,
friends. These could not in justice be claimed by the
church. Care must always be taken, however, to avoid
profanation.
a
21 S. Pius V, " Rotnani Pontificu," 22 Benedict XIV. "Ad honoran-
Aug. 30, 15^7. I 11- ium," March 27. 17$*, 5 *7-
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1301 277
—
in
duty of maktng a valid testament
Can. 1301
§ i. S. R. £. Cardinalis, Episcopus residentialis
aliique clerici beneficiarii obligationc tencntur curandi
testamento vel alio instrumento in forma iuris civilis
valido ut canonica praescripta, de quibus in can. 1298-
1300, dcbitum cifcctum etiam in foro civili sortiantur.
§ 2. Quamobrem tempestive ac forma iure civili
B
valida personam integrae famae designent ad normam
can. 380, quae, adveniente ipsorum morte, non solum
sacram Bupellectilem, sed etiam libros, documenta ali-
aque quae ad ecclesiam pertinent et in corum domo
reperiuntur, occupet et cui debentur, remittat.
B
Cardinals, residential bishops, and all other clerical
beneficiaries are in duty bound to draw up a last will or
other instrument in a form acknowledged as valid by civil
law, in order that the regulations laid down in can.
1298-1300 may be made effective also in the civil courts.
For this purpose they shall in due time and legal form
appoint some person of good character who, at the ap-
proach of their death, shall take temporary possession
not only of their sacra supellex, but also of books, docu-
ments, and other objects belonging to the church and
found in their residence, and deliver them to the lawful
a
claimants.
Since the decree of the S. C. of the Propaganda, Dec.
15, 1840," substantial changes have been introduced in
the laws of our country which render said decree largely
superfluous. Church property is no longer held in fee
simple, but other forms of tenure have developed, which
2* Coll. P. F-, n. 916.
ogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
2;8
ADMINISTRATIVE LAW
render the conveyance of church property more simple.
There is no doubt that the '* corporation sole " effectively
serves the necessities of churches whose form of gov-
ernment is monarchical.2* For the rest, the statute laws
in the different States of the Union differ widely. In
many States bishops are authorized to become cor-
porations sole by complying with certain conditions,
which arc usually extremely simple, consisting merely
of the filing of some statement, certificate, or affidavit
with a certain officer of the law. Then there is the
system of quasi-corporations, which are by statute de-
clared corporations for the purpose of taking over prop-
erty."
24 Cfr. K. Zollmann, American
Civil Church Law, 19' 7. P- 63.
zo / 'id., p. 46. Here it may be
well to allege the following passage
from the same distinguished author's
work, p. 354 f.:
" The Roman Catholic church in
this country has been until recently
on a missionary basis. With the ex-
ceptioD of some parishes in the ter-
ritory acquired by the Louisiana Pur-
chase, there are therefore few Cath-
olic parishes in the United States.
The theory was that the misiion was
conducted from abroad. It followed
that the property necessary for the
purposes of the church must be sub-
ject to the control of the church in
general, rather than to that of any
individual congregation or congrega-
tions. To achieve this condition of
affairs the aim has been to place all
the property of all the churches in
the name of the bUhop or archhishop
of the diocese to which the particu-
lar church belongs. Consequently
the property of Catholic churches is
universally vested in some church
dignitary either in his personal ca-
pacity or ai a corporation sole. The
question then arises aa to the nature
of this title. la it legal or equitable
or both? There con be no question
that the bishop or archbishop is the
holder of the legal title. The prop-
erty ordinarily stands absolutely in
his name. It is customary, and in
fact required by church regulstion
in al least some of the dioceses, to
eliminate from deeds to bishops all
words of trust and all words indicat-
ing the ofiitial character of the
grantee. Where the bishop is not
a corporation sole he is required to
make a will by which he devises
such property to certain persons
with a direction to convey it to the
person appointed as his successor.
The devisee, under such circum-
stances, ia not held responsible for
any negligence of the devisor. . . .
It fallows that money raised for the
special purpose of building a local
church and placed in the hands of
the bishop does not pass absolutely
to him, but is a trust fund which the
congregation can reclaim at any lime
by action. It further follows that
>gle
Original from
UNIVERSITY OF WI5C0NSI
CANON 1302
279
CUSTODY OF THE SACRA SUPELLEX
Can. 1302
Rectores ecclesiarum aliique quibus credita sit cura
sacrae supcllectilis, sedulo debent eiusdem conserva-
tioni et decern prospicere.
Rectors of churches and others entrusted with the care
of the articles known as sacra supellex, shall diligently
preserve them and keep them clean and neat.
Chapter churches generally have a custos among their
members." Of course the Ordinary cannot be dispensed
from the duty of vigilance, and this applies also to the
churches of the Oriental Rite.27 Everything connected
with divine service should be clean, whole and decent.28
The pastors are responsible in a particular manner for
the condition of the sacra supellex, which must not be
left exclusively in the hands of laymen or even Sisters.
The pastor may, of course, entrust his curate or assistant
with this duty." Care must be bestowed not only on
pontifical vestments and utensils, but also on the things
that are worn or used by simplices sacerdotes, for the
law draws no distinction between the two, and the sacred
minister, when he celebrates the sacred mysteries, is not
inferior to the pontiff, except by accident, because the
1 voluntary assignment by a bishop
for the benefit of creditors does not
cover such property and that a deed
or mortgage given to a purchaser
who has notice of the facts (and
who could purchase church properly
without such notice) passes no bene-
ficial title. It further follows that
on the death of the bishop the court
may appoint a trustee in his stead."
Parish corporations arc recom-
mended and corporations sole per*
roittcd, by the S. C. C, July *9,
191 1 (£«■/. RnA*w, Vol. 4S. P- 585
t).
2« C. I, X, 27.
27 S. C. P. F„ April 13, 1807,
III (n. 69-T); S. C. EE. cu RR.,
Feb. 9, 1751 (Biaxarri, t. c, p.
28 S. C. EE. et RR„ I. c; RU.
Rom., tit. I, c. un., n. 9.
so Rit, l!cr..f J. e., n. 3.
■oogl
gle
Original from
UNIVERSITY OF WISCONSIN
28o ADMINISTRATIVE LAW
vestments he wears refer chiefly to the sacred action,
and not to the person who performs it.
■
;
further directions regarding the sacra supellex
Can. 1303
§ 1. Ecclesia cathedra lis debet sacram supellectilern
aliaque quae ad Missae sacrificium vel ad alias pon-
tificates functiones necessaria sint, gratis Episcopo
subrninistrarc etiam privatim celebranti non solum in
ecclesia cathedral!, sed in aliis quoque civitatis vel
suburbii ecclesiis.
§ a. Si qua ecclesia paupertate laboret, potest Or-
dinarius permittere ut a sacerdotibus qui in proprium
commodum inibi celebrant, propter utensilia ceteraque
ad Missae sacrificium necessaria, moderata stipes exi-
gatur.
§ 3. Episcopi, non autem Vicarii Capitularis aut
Vicarii Generalis sine special! mandato, est eandem
stipem definire, et nemini, etiam religiosis etsi ex-
emptis, licet ea maiorem exigere.
§ 4. Episcopus pro tota dioecesi ciusmodi stipem in
dioecesana Synodo, si fieri possit, definiat, aut extra
Synodum, audito Capitulo.
-
-
§ 1. The cathedral church must furnish free of charge
the sacra supellex and everything else that may be re-
quired for the celebration of Mass and other pontifical
functions, no matter whether the bishop celebrates pri-
vately or solemnly, in the cathedral church or in any
other church of the episcopal city or its suburbs. Hence
if the bishop celebrates within the city limits or its suburbs
he may take the pontifical vestments along with him,
>Ie
£ " -» v J„ Original fro m
UNIVERSITY OF WISCONSIN
CANON 1304
281
and the cathedral church cannot object.80 But this holds
only for the episcopal city, not for the whole diocese.
§ 2. If a church is very poor, the Ordinary may permit
that a moderate fee is paid by the priests who say Mass
there for their own convenience, to defray the expense of
the sacred utensils and other things required for the
celebration of Mass. The S. Congregation has decided
that beneficiaries who are compelled to say Mass in a
church not their own should contribute something for
the candles, bread, and wine, and for the use of the vest-
ments.31
§ 3. The bishop, but not the Vicar Capitular nor the
Vicar General without a special mandate, may fix the
amount of said offering, and no one, not even exempt
religious, may charge more.
§ 4. The bishop should fix this fee for the whole dio-
cese at the diocesan synod, or else with the advice of the
chapter or diocesan consultors.
BLESSING OF THE SACRA SUPELLEX
Can, 1304
Benedictionem illius sacrae supellectilis quae ad
normam legum liturgicarum benedici debet antequam
ad usurn sibi proprium adhibeatur, import ire possunt:
i.° S. R. E. Cardinales et Episcopi omnes;
a.0 Locorum Ordinarii, charactere episcopali caren-
tes, pro ecclesiis et oratoriis proprii territorii ;
3.0 Parochus pro ecclesiis et oratoriis in territorio
suae paroeciae positis, et rectores ecclesiarum pro suis
ecclesiis ;
10 S. Rit. C, March 14, 1643, ad
4. 5 (n. 831).
31 S. C. C, May 14, 1729 (Rich-
tcr, Trid., p. 137, n. 6a).
►ogle
Original from
UNIVERSITY OF WISCONSIN
282 ADMINISTRATIVE LAW
4.0 Sacerdotes a loci Ordinario delegati, intra fines
delegationis et iurisdictionis dclegantis ;
5.0 Superiores religiosi et sacerdotes eiusdem re-
ligion is ab ipsis delegati, pro propriis ecclesiis et ora-
toriis ac pro ecclesiis monialium sibi subiectarum.
The sacra supellex should be blessed before use, and it
may be blessed by the following :
i.° By the cardinals and all bishops (hence also by
titular bishops) ;
2.0 By local Ordinaries not endowed with the episcopal
character for the churches and oratories of their respect-
ive territory ;
3.0 By the pastors for the churches and oratories situ-
ated within their parishes, and the rectors of churches
for their own churches;
4.0 By priests delegated by the local Ordinary, within
the limits of their delegation and the jurisdiction of the
delegans;
5.0 By religious superiors and by priests of the
same institute delegated by the superior for their own
churches and oratories and those of the nuns subject to
them.
Notice that only blessings in which no sacred anoint-
ing is required are here understood. The consecration
of chalices and patens is not included. The S. Congre-
gation has clearly stated this in more than one decision,
as may be seen from the references in the footnotes.
What is said in no. 4, concerning delegation, may be
deduced from the general rules on delegation.
The fifds delegationis or purpose of delegation must
be ascertained from the wording of the faculties. If
the general term sacra supellex is used, it includes
everything comprised under that name, also the vasa
oogle
i*^ ^ .. ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 1304
283
sacra, which only need to be blessed.82 But if the faculty
reads, " bencdicto sacerdotalium indumentorum," it ex-
cludes the blessing of altar linens, corporals, palls, and
sacred vessels, which are all separate and distinct bless-
ings given by means of special formulas.
Concerning religious superiors the text establishes noth-
ing new, except perhaps that they require no privilege for
blessing these things. Their power is, as it always was,
restricted to their own churches. Thus abbots, priors
(convenual not cloistral priors), guardians, rectors of
the Society of Jesus, and all others who enjoy the privi-
lege of blessing sacred vestments, cannot make use of
this privilege except for the benefit of their convents and
churches, — provided always that no sacred anointing is
required.38 When the S. C. was asked whether this
faculty could be used also for blessing things pertaining
to other churches than their own, in view of a standing
custom (stante eorum allegata consuetudine) , it replied:
non posse, they cannot.34 Hence the " awful " decree of
Sept. 1659, decided nothing else but what was Roman
jurisprudence.55 The Cassinese abbots were also in-
cluded in this decision.86 If it is asked, which churches
are meant by the term propriae ecclesiae, the answer is
clearly contained in a decision aT of the S. Rit. C, of
May 16, 1744. They are the plcno litre subicctae, i, e.,
those churches which have been forever incorporated
with the monasteries or religious organizations both
as to temporal and spiritual matters by the Holy See.
For the rest there is no need of stretching this power.
12 S. Rit C, Dec. a, 1881, ad II
(n. 3533)^
•0 S. Rit C„ March ij-, 163J (n.
a« S. Rit. C, Aug. 18, 1639 (n-
513).
afl S. Rit C, n. 1131.
bc S. Rit C, July 30, 1689, ad II
(n. 1813).
87 S. Rit C, May 16, 1744. ad
II (n. 2377).
>Ie
Original from
UNIVERSITY OF WI5C0NSI
-'
■
pi
284 ADMINISTRATIVE LAW
If every pastor and every rector has the right to bless
these articles, why should the religious superior trouble
himself? An occasion for this assumption, and a reason-
able one at that, would be if a religious community would
distribute vestments to poor churches gratis. But not
even in that case would the religious superior be author-
ized to bless the vestments to be distributed to churches
outside of his jurisdiction.88
The churches of nuns who are subject to religious,
are of course, those of such nuns as are subject to the
prelates regular; therefore they are styled moniaUs, i.e.,
Sisters with solemn vows. Tertiaries are not included.
If these moniales (like the Sisters of the Visitation) are
subject to the bishop, the sacra supellex of their churches
must be blessed either by the Ordinary or the chaplain,
provided the latter has received due delegation from the
bishop. The same rule holds concerning the sacra supel-
lex of ordinary sisterhoods. The chaplains should not
imagine that they are rectors of the chapels or oratories
of the religious whom they attend, for can. 479 gives a
precise definition of a rector, in which they are not in-
cluded.
loss of blessing or consecration
Can. 1305
§ 1. Sacra supellex benedicta aut consecrata bene-
dictionem aut consecrationem amittit:
i'.° Si tales laesiones vel mutationes subierit ut pris-
tinam amiserit formam, et iam ad suos usus non
habeatur idonea;
2.0 Si ad usus indecores adhibita vel publicae vendi-
tioni exposita fuerit.
38 S. Rit. C« Aug. 31, 1867, ad XI <n. 3157).
'le
Y ,1,., Original from
UNIVERSITY OF WISCONSIN
a
N
p
"■
CANON 1305 285
§ 2. Calix ct patena non amittunt consecrationem
ob consumptionem vel renovationem auraturae, salva
tamen, priore in casu, gravi obligatione rursum ea
inaurandi,
§ 1. An article of sa-cra supellex that has been blessed
or consecrated, loses its blessing or consecration :
i.° If it is so badly damaged or changed that its form
is lost and it becomes unfit for its proper purpose ;
2.0 If it has been used for unsuitable purposes or ex-
hibited for public sale.
The first case would be verified if a chalice sustained
a slight break or split in the cup near the bottom. Not
so however, if the break be near the upper part, so that
consecration can take place in it without fear of spilling
the contents." The same rule applies, mutatis mutandis,
to the paten, if it had holes in it. Concerning vestments
a serious damage or injury would occur if a vestment
were entirely taken apart and a relatively large portion
renewed. The form of a corporal, or palla, etc., would
be changed if, according to common parlance, the vest-
ment could no longer be recognized as such, which would
be the case, e. g., if only rags remained.
Concerning indecorous use there is a synodal decree
of Auvergne (536) which prohibits the use of sacred
vestments for bridal or wedding purposes. The same
synod also forbade covering corpses with altar linens
(pallia et ministeria divina).*0 Zitelli refers to a decision
according to which the consecration of a chalice would
be lost if the sacred vessel was used for drinking purposes
ao Cfr. Schulte, Consecronda, « Can. 4J. DUt. i, da cons.
1907. P- *7». who *'•» sayi: If the Hefele, Cone.-Gesch.. II, 730: mw-
cup can be detached from the stem isteria divina here means sacred
by loosening the screw, consecra- vestments.
-
lion would not be lost.
oogle
k ,1,., Original fro rm
UNIVERSITY OF WISCONSIN
286 ADMINISTRATIVE LAW
by heretics." There is no doubt that any profanation
of a sinful character entails the loss of consecration.
Exhibition for public sale or public auction also effects
loss of consecration, no matter whether it is done by
Catholics or non-Catholics.
§ 2 changes the former discipline or practice of the
Roman congregations *■ when it states that chalice and
paten do not lose tlieir consecration by the wearing away
of the gilding, or by the process of regilding. But if the
gold plating wears away, there is a grave obligation to
have the vessel replated. This new law undoubtedly
presupposes, not only that the whole chalice is conse-
crated, but also that the consecration does not attach to
the mere surface or gilding.
handling sacred vessels
Can. 1306
§ 1. Curandum ne calix cum patena et ante lotionem
purificatoria, pallae et corporalia, quae adhibita fuere
in sacrificio Missae, tangantur, nisi a celericis vel ab
iis qui coram custodiam ha bent.
§ 2. Purificatoria, pallae et corporalia, in Missae
sacrincto adhibita, ne tradantur lavanda laicis, ctiam
religiosis, nisi prius abluta fuerint a clerico in maiori-
bus ordinibus constituto; aqua autem primae lotionis
mittatur in sacrarium vel, si hoc desit, in ignem.
§ r. Care must be taken that the chalice with the
paten, as well as the purificators palls, and corporals, be-
fore being washed, after having been used in the Sacri-
fice of the Mass are touched only by clerics or by those
who have charge of these things.
41 Apparatus Iuris Eccl., 1886, 43 S. Rit. C, June 14. i&45 (n.
p. 433; L*- H. c- In- art- h • 5- 2889).
oogle
/""* -» -. il,-. Original from
UNIVERSITY OF WISCONSIN
CANON 1306
287
Pseudo-Soter says nuns and consecrated virgins were
not allowed to touch the sacred vessels and palls.43 An-
other canon says subdeacons and acolythes are allowed
to touch sacred utensils — sacra ministeria, as they were
then called.4* The janitors (ostiarii) were not allowed
to wash or handle them, but had to watch that no one
touched them" The general name for all who were
allowed to touch such objects was sacrati Dotninoque dedi-
cate homines** That the old Testament played a part
in this prohibition is evident.47 According to present-
day practice only those who have received the clerical
tonsure are allowed to touch the sacred objects men-
tioned. A cleric may touch the chalice and prepare it
for the holy Sacrifice in the sacristy.48 One who has
received the clerical tonsure may act as chaplain to a prel-
ate saying low Mass, or as quasi-master of ceremonies
to a priest singing high Mass without deacon and sub-
deacon. But in the latter case he has to observe the
following rules: (a) he shall not wipe the chalice before
the offertory, nor bring it to the altar uncovered; (b)
he shall not pour wine and water into the chalice; (c)
he shall not pass the paten with the host, nor the chalice
to the celebrant; (d) he must not touch the chalice after
the canon has started, nor remove the pall from it; (e)
after the ablution he shall not clean the chalice, but may
cover it with the veil and burse, and carry it to the cre-
dential. If a cleric who has received only the tonsure40
« C. as, DUt 1; — the manufac-
turer of thif canon betrays himself
aa a forger, because monaclute were
unknown in Sotcr's time.
44 C. 32. Diat. L
«C 40, Dial t, di cons.
(Pseudo-Clem.).
4« C. 41, Diat 1, dt cons.
( Fscudo'Sixtus).
47 C. 42, Diat. 1, de cons.
48 S. Kh. C, Nov. 23, 1906, ad I
(n. 4194).
46 A reasonable or plausible cause
ia required that one in minor orders
or simply tonsured be admitted as
aubdeacon, but one who ia no
cleric should not be admitted; S.
Rit. C, March 10, 1906, ad I (n.
oogle
Original fro ni
UNIVERSITY OF WI5C0NSI
288
ADMINISTRATIVE LAW
acts as subdeacon, dressed in amice, alb, cincture and
tunic (without maniple), he has to observe these rules, but
may carry the chalice to the altar. If an untonsured
cleric is to assist a prelate at low Mass, the chalice must
be placed on the altar before Mass, entirely covered and
the cleric must act as if he were assisting a simplex sacer-
dos. He may, however, assist the prelate at the missal,
turn the leaves, hold the candle, but he must not touch
or wipe the chalice.80
§ 2. Purificators, palls, and corporals, which have been
used in the Sacrifice of Mass, shall not be given to lay
persons, even though they be religious, to be washed by
them before they have been washed by a cleric in higher
orders. The water of the first washing should be
poured into the waste hole, called sacrarium, or if there is
no sacrarium, into the fire.
Religious here means lay Brothers and Sisters. Even
the Ordinar)' cannot grant these the permission here in
question.01 If, therefore, laymen, Sisters or Brothers,
have to handle an object which they are forbidden by
§ I to touch, let them use a clean purificator.
Concerning the ostensorium, ciborinm, and custodia,
there is no prohibition of touching these objects, nor are
laymen obliged to use a cloth in handling them.
4181); this is the general tenor of
decisions.
soy RJt C, March 10, 1906, ad
11- vii a c>.
ot S. Rit G, Sept. 1a, 1857 (n.
3059). " Vet ob this qui eorum cus-
■ Jia m habeanl " may cause a doubt,
as if laymen or Sisters were allowed
to touch said articles. Yet it ap-
pears from can. 1302 that these cus-
todians are supposed to be of the
clerical rank. This is confirmed by
the last quoted decision of S. Rit.
C. However, this seems to be un-
derstood of immediate touch; for
a mediate touch, 1. e,, by means of
a cloth, can hardly be forbidden.
Neither should SUteri have scruple*
if they touch the sacred vessels,
transiently or inadvertently.
oogle
Original from
UNIVERSITY OF WISCONSIN
TITLE XIX
VOWS AND OATHS
CHAPTER I
VOWS, DEFINITION AND CAPACITY
■
Can. 1307
§ 1. Votum, idest promissio deliberata ac libera Deo
facta de bono possibili e* rneliore, ex virtute religionis
impleri debet
§ 2. Nisi iure prohibeantur, omnes congruenti ra-
tionis usu pollentes, sunt voti capaces.
§ 3. Votum metu gravi et iniusto emissum ipso iure
nullum est.
§ 1. A vow is a deliberate and free promise made to
God concerning something possible and better; it obliges
by reason of the virtue of religion.
The promise x must be made to God, because He is
the end of our actions, which ought indeed all to be di-
rected to Him. A promise involves the obligation of keep-
ing it, and hence differs from a mere resolution. A prom-
ise, to entail a lasting obligation, requires full consent,
frfidy given. Every substantial error, therefore, in fact
every error which is the cause of a vow, renders the latter
lCf. Suarez, De Religione, tract.
VI, De Voto (ed. Paris., 1859, t
XIV, p. 750 ff.); S. Alphonsus,
Lib. IV, tr. II c. 3. De Voto
(ed. Paris. 1875. Vol. IT. p. 110 ff.);
Lchmkuhl, Thccl. Moralis, I, n.
438 ff.; Cath. Enc, Vol. XV, 511 I
(by Vermecrsch, S. J.J.
289
k
Original from
UNIVERSITY OF WISCONSIN
2cp ADMINISTRATIVE LAW
null and void. This does not, however, imply that every
circumstance or detail attending the vow must be known
in advance.
Freedom excludes fear and compulsion, which may be
brought to bear upon the will either from the outside
or from within.
From the necessity of free and deliberate consent —
because every vow is a human act — it naturally follows
that the material object of the promise made must be
something that lies in man's power, an object of which
he is allowed to dispose and over which he has control.
Hence it must be something possible, namely, attainable
by his physical and moral faculties. Thus it would in-
volve a physical impossibility to impose upon oneself a
fast which were incompatible with the physical labor one
has to do, or which would seriously impair one's health;
and it would be morally impossible to avoid every sin.
The object of a vow must furthermore be a bonum
melius, i. e., something better than its omission, or some-
thing which does not impede or nullify a higher or better
good. Hence no object which is sinful in itself (ex parte
rci votae) can be made the object of a vow. Nor can
anything useless or entirely indifferent be properly speak-
ing intended in a vow. Thus a matter which would dis-
turb the means of higher perfection or prevent the ful-
fillment of an ecclesiastical law, could not be made the
object of a vow.
Lastly, the definition says that a vow obliges by reason
of the virtue of religion. A vow is an act that refers to
God as its immediate and proper end, and therefore is
an act of that worship (actus latriae) which is due to
God alone. If one " makes a vow to a saint," the mean-
ing is that he makes the vow to God in honor of the
jte
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1307 291
saint, just as churches are dedicated. Such acts naturally
spring from the virtue of religion, which regulates the
relation between the Creator and His creature, the union
between God and man.
§ 2. Unless prohibited by law, all who have the neces-
sary use of reason, are capable of making a vow.
§ 3. A vow made under the influence of grave and un-
just fear is null and void by law.
The general rule a is that everyone who has sufficient
use of reason and free will may make a vow. However,
as Suarez* says, for a vow to be valid before God there
is required the necessary knowledge of God and of what
the vow implies. If the latter knowledge were wanting,
the subject would not enjoy that use of reason which is
proportionate (congruens) to the object of the vow. On
the other hand, although it may be said that the use of
reason enlightened by faith is necessary, yet even a heretic
who errs in certain doctrinal matters may pronounce a
valid vow of chastity, provided he has the intention to
make a vow and knows what it involves, at least sub-
stantially.4 And substantial knowledge is generally sup-
posed to exist in those who have sufficient use of reason
to realize what a grievous sin is.
Some persons are excluded by law from making vows.
Thus those who have not attained the required age, are
forbidden to make a religious vow, and those who are sub-
ject to others in the matter of the vow are forbidden to do
so. Bishops and clergymen should not take a vow to re-
sign their offices or undertake a pilgrimage which would
for a long time prevent them from fulfilling their duties.5
tCfr. S. Thorn., Summa Theol, 4 S. Pocnit., Nov. 29, 184* (Coll.
a" a" q. 88, art. 8 f. P. F., n. 959).
3 Dv Vota, 1. Ill, c. 2, n. 9 (J. c, 5 Cfr. Suarcx, /. c. 1. Ill, c. 4.
P- 895).
-
■-:
GdbyG \\c
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
292 ADMINISTRATIVE LAW
Married women should not make vows incompatible with
their state, religious should not, without the knowledge of
their superiors, vow things which would clash with their
ordinary duties.
Fear to render a vow invalid, must be grave, i. e., such
as is apt to influence a man of character and constancy.
Such a fear would be that of torment or death.8 It must
also be unjust, viz., threatened by such as have no author-
ity or right to do so, or entirely out of proportion to the
matter of the vow. The law which declares such a
vow invalid is presumably the ecclesiastical law, for it
would be difficult to prove that the natural law renders
such a law invalid, since the voluntarium is not entirely
wanting even under the pressure of grave fear.
kinds of vows
Can. 1308
§ z. Votum est publicum, si nomine Ecclesiae a
legitimo Superiore ecclesiastico acceptetur; secus
privatum.
§ 2. Sollemne, si ab Ecclesia uti tale f uerit agnitum ;
secus simplex.
§ 3. Reservatum, cuius dispensationem sola Sedes
Apostolica concedere potest.
§ 4. Personale, quo actio voventis promittitur ;
reale, quo promittitur res aliqua; mixtum, quod per-
sonalis et realis naturam participat.
■-■■
A vow is public when it is accepted by a lawful ecclesi-
astical superior in the name of the Church ; all vows not so
accepted are private.
Therefore, the intervention of the Church through her
• C. 6, X, 40; Suarez, De Vo'o, I. I, c 8, n. 5, thought otherwise
►ogle
£ " ^ v J„ Original fro m
UNIVERSITY OF WISCONSIN
CANON 1309
293
lawful representatives is necessary to make a vow public.
The term superior supposes authority in foro externo,
at least this is the usual acceptation. Hence neither the
pastor, as such, nor a confessor, as such, can accept a
public vow or render a vow public.
Private vows, of course, may be made into the hands of
pastor or confessor, nay without any intervention on the
part of the Church.
A vow is solemn if it is acknowledged as such by the
Church; otherwise it is simple. This distinction has
been explained in Vol. Ill of this Commentary. A vow
is reserved if dispensation from it can be granted only by
the Apostolic See.
A vow is personal if the object of the promise is an
act of the vowing person, for instance, to love another r
it is real if an object other than the act itself is promised ;
it is mixed if it combines the elements both of a personal
and of a real vow. A vow to make a pilgrimage, e. g.,
is a personal vow, but if it includes giving an alms, it is-
mixed.
RESERVED VOWS
Can. 1309
Vota privata Sedi Apostolicae reservata sunt tan-
tummodo votum perfectae ac perpetuae castitatis et
votum ingrediendi in religionem votorum sollemnium,
quae emissa fuerint absolute et post completum deci-
mum aetatis annum.
The only private vows which are reserved to the Apos-
tolic See are that of perfect and perpetual chastity and
that of entering a religious order with solemn vows, pro-
vided they are made unconditionally and after the eigh-
teenth year of age has been completed.
GoogI
Original from
UNIVERSITY OF WISCONSIN
294 ■ ADMINISTRATIVE LAW
a
St. Thomas knew two reserved vows: that of conti-
nence and that of a pilgrimage to the Holy Land. But the
number was later increased, so that five were considered
as reserved : to enter a religious order, to observe perpet-
ual chastity, to make a pilgrimage to Jerusalem, St. James
of Compostella (Spain), and to the tombs of St. Peter
and Paul in Rome.7 Now the three pilgrimages are taken
away from the number of vows reserved to the Holy See,
and only two are left. These two are explicitly denned,
so that little doubt is left as to their extent.
The vow of perfect and perpetual chastity (perfectae et
perpetuate castitatis) tends to an act that is perfect in itself
and by reason of the matter intended. If the vow is
taken from a motive lower than love of the virtue of
chastity, it is imperfect. Such a lower motive may be
vanity, physical imbecility, or even stubbornness. A vow
of chastity would be imperfect on the part of the matter
vowed, if only virginity, or integrity of the body, or not
marrying, was contracted.*
A vow is perpetual if it is taken not for a limited time
only, (for instance until a certain age), but forever.
The vow of " entering a religious institute " here refers
to orders of regulars, i. e.t the religious state in which sol-
emn vows are pronounced.
These private vows are not reserved to the Holy See
unless made unconditionally. A condition would be, for
instance, if I receive that favor, if I am restored to
health ; if the order is approved by the Holy See ; if
there is a convent of that order in such and such a
3
country, etc.
Besides, the person who takes such a vow must have
completed the eighteenth year of age. This is a higher
T Dcncd. XIV, *' Inter pratleri- 8 Cfr. Lehmlcuhl, I, n. 477.
tos," Dec. 3. *740. 1 42.
§le
k ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1310
295
—
a
N
limit than was set before, in fact until now there was no
definite limit set to age in this connection.
PERSONAL OBLIGATION
Can. 1310
§ 1. Votum non obligat, ratione sui, nisi emittentem.
§ s. Voti realis obligatio transit ad heredes, item
obligatio voti mixti pro parte qua reale est
§ 1. A vow, as such, obliges no one but the person
who makes it, for the reason that a vow involves a
strictly personal obligation, which can neither be assumed
nor fulfilled except by the one who has offered this
promise to God.
In the city of Rome the fastday of Feb. 1 was long ago
introduced by reason of a vow. After the promulgation
of the Constitution of Urban VIII, " Universe" of Sept.
13, 1642, doubts were proposed to the S. Congregation
of Rites as to whether the feasts suppressed by that con-
stitution also included the feasts which had been kept
merely by reason of a vow. The answer was that the
feasts observed by reason of a vow, but now suppressed,
oblige only those who made the vow, not their succes-
sors.9 Why, then, is the 1st of February still observed in
Rome? Because there was a law, or statute, or precept
attached to the vow. Therefore it is not the vow as such
(ratione sui), but the law attached to it, which obliges the
successors of the one who made the original vow l0; pro-
vided that law was accepted by the majority and was not
abrogated by a later law or contrary custom.
§ 2. The obligation arising from a real vow passes
9 S. C. Rit, April 18, 1043; Nor.
19, 1650; June 23, 1703* *d 1 I1"1.
834. 93*. 21 13).
10 Suarex, De Voto, I. IV, c. 9.
Go >gle
Original from
UNIVERSITY OF WISCONSIN
296 ADMINISTRATIVE LAW
f-> the he%rs, that arising from a mired vow only in so
far as the real part is concerned.
A personal vow expires with the death of the person
who made it, and hence, for instance, the obligation of
making a pilgrimage does not pass to the heirs. But if
one vowed not only a pilgrimage, but also a certain sum
of money to the sanctuary, the real part of the vow, re-
specting the donation, must be fulfilled by those who suc-
ceeded the deceased in the possession of his property.
Why? Because an heir is, in virtue of justice and by
reason of an at least implied or tacit contract, obliged to
pay the debts of the one whose property he obtains either
by last will and testament or by succession ab intestato.
There is no reason why religious debts should not be paid,
even though the civil law does not compel the heirs to pay
them.11 It is not necessary to recur to the religious as-
pect of the question, because, as Suarez truly says,12 re-
ligious loyalty does not strictly oblige to restitution. Of
course, if the vow was originally restricted to the lifetime
of the vovens, or made conditional upon its acceptance by
the heirs, it does not oblige the latter unless they accept
the inheritance. It is evident that the heir must know of
such a vow, one way or the other ; if he does not, the in-
heritance must be considered free of encumbrance. A
legacy or bequest left by vow must therefore, in virtue of
justice, be delivered to the persons or pious institutes for
whom it was intended by the vovens.
-
11 Cfr. I, 2, Dig. 50, 1*3 "voti The older English law left it with
tnim obligationcm ad hcrcdem the Ordinaries to dispose of goods
tronsir* constat." Itfl ab intestato for pious purposes.
"■
\z De Vote. L IV. c u, n. 8 f. Cfr. Blackitone-Cooley, II, I 404.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1311
297
cessation of obligation
Can. 1311
Cessat votum lapsu tcmporis ad finicndam obliga-
tionem appositi, mutatione substantial! materiae prom-
issae, dehcicntc conditione a qua votum pendet aut
eiusdem causa finali, initatione, dispensatione, com-
mutations.
A vow ceases to oblige :
(a) After the time conditionally set for its fulfillment
has expired; (b) If there is a substantial change in the
thing promised; (c) if some condition on which the vow
was made to depend, is not fulfilled; (d) if the cause or
object for which the vow was made ceases to exist; (e)
by nullification, dispensation, or commutation.
Before explaining these points we must premise that the
time when an obligation commences (terminus a quo),
differs according to the character of the vow, whether
it is negative (a promise to omit something) or positive
(a promise to perform a good work). If a vow is neg-
ative (for instance, not to play cards, not to gamble), it
obliges immediately (statius ac pro statim), unless it was
limited by the vovens. An affirmative vow, on the other
hand, e.g., to enter a religious order, though it also be-
gins to oblige from the time it was made, may reasonably
be postponed until a time which is more convenient ac-
cording to one's own prudent judgment.18
Now as to cessation:
Ad 1. The lapse of time is here considered as ad finien-
dam which signifies that a precise term was set, beyond
which the vovens had no intention to oblige himself. For
instance, if one would take the " pledge " (to abstain from
13 See Suarez, De Voto, I. IV, c. 12.
>gle
Original fro m
UNIVERSITY OF WISCONSIN
■
298 ADMINISTRATIVE LAW
intoxicating drinks) in the form of a vow (in itself the
pledge implies no vow, but a mere resolution) for one
year, the obligation would cease after 365 days have
elapsed, even in a leap year. This rale holds good for
personal as well as real and mixed vows. If a vow was
made for a certain time, but the time limit was only
a secondary or accessory consideration, and not a con-
dition proper, it is generally presumed that the vow, if
personal (for instance, of fasting), ceases after the lapse
of that period. Whereas if it is real, it does not cease to
oblige even after that time and must therefore be com-
plied with even if the time limit has expired.14 This, of
course, holds also of mixed vows, as to their material
object.
Ad <?. A substantial change of the thing promised also
renders a vow null and void. Such a change would occur,
e. g., if one had vowed to give substantial alms for a good
purpose, and later became poor; he would then be free of
his vow and need not beg to get the money.18 The same
rule applies to a personal vow (for instance, of undertak-
ing a pilgrimage or of fasting) if one's health becomes so
gravely impaired that one cannot comply with one's prom-
ise. This holds even if the change has been brought
about by one's own fault.18
Ad. J. A vow ceases to oblige, thirdly, if the condition
attached to it by the vovens is not fulfilled, for instance, if
one made a vow in order to obtain good health, and this
favor has not been restored; or if one vowed to enter re-
ligion, provided such and such a convent would receive
him or her. In the latter case he would not be obliged to
ask for admission to another convent17
14 S. Alph., lib. IV. tr. II, c. 3, 16 Ibid.
Dt V'oto, n. 320 (ed. cit., p. 132 £.). 17 Cfr. Suarez, De Voto, L IV,
iQltnd., n. 335, 3 ff- c. 17.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1312 299
a
Ad 4. By final cause (causa ftnalis) must be understood
the main and primary reason that moves or prompts one
to make a vow; for instance, if the poverty of a church
caused one to vow a legacy to it, or if the sickness of a
friend prompted one to vow a pilgrimage for his recov-
ery. Besides this final cause, there may be impulsive rea-
sons, which aided in impelling one to make the vow, but
only accidentally or secondarily ; these do not constitute
the end or object for which the vow was made.18 Now,
if the final cause or purpose of a vow ceases to exist, as in
the case of a poor institution becoming wealthy, the obliga-
tion ceases. But if the poverty of the institution was only
a secondary or impelling cause (" ad facilitts donandum ")
the vow obliges even after the institution ceases to be
poor. It is, therefore, somewhat similar to a condition.
Ad. 5. The nullification or irritation of vows as well as
dispensation and commutation are treated in the following
canons.
;
E
irritation of vows
Can. 1312
§1. Qui potestatem dominativam in voluntatem vo-
ventis legitime exercet, potest eius vota valide et, ex
iusta causa, etiam licite irrita reddere, ita ut nullo in
casu obligatio postea reviviscat.
§ 2. Qui potestatem non quidem in voluntatem vo-
ventis, sed in voti materiam habet, potest voti obliga-
tionem tandiu suspendere, quandiu voti adimplemen-
tum sibi praeiudicium afferat.
§ 1. Whoever lawfully exercises controlling power over
the will of the vovens may validly and, for a reasonable
IB Saarex, Dt Voto. lib. TV, c. 18, n. 8.
>Ie
J , Original from
UNIVERSITY OF WISCONSIN
-'
■
pi
300 ADMINISTRATIVE LAW
cause, also licitly nullify his vow, so that the obligation
ceases, never to revive.
This is what is called irritation, and may be defined as
an act by which either the object of the vow, or the act
of the vowing person itself, ceases to oblige. When the
matter of the vow (for instance, a pilgrimage) is imme-
diately concerned, irritation is called indirect (see § 2).
When the will, or. rather, the act of the vovens, is affected,
irritation is called direct, because by it the act is revoked
and, as it were, cancelled.1* This power may be exercised
only by persons to whom the will of the vovens is subject
by reason of governing or domestic power, as distin-
guished from the power of jurisdiction. The dominative
or domestic power, like the paternal power, is radically
based upon the natural law, but has its formal sanction in
ecclesiastical law.
The domestic authorities here concerned are:
(1) The pope and religious superiors (and superior-
esses) with regard to vows made by their subjects after
their religious profession. As to the pope, the question is
solved in can. 499, § 1 ; as to the superiors, there can
be no doubt, since all superiors, even the female, enjoy
domestic power over their subjects by virtue of the vow
of obedience. This certainly is true with respect to all
those who rule and live in a community to which the name
" religious n may be applied in the canonical sense.
Hence the superiors, higher and local, of all orders and
congregations, papal as well as diocesan, have the power
of irritating vows made by their subjects after the simple
profession, for it is by this profession that the members
arc really placed under domestic power.
The answer is different for religious societies which
i»Suarex, De Voto, 1. VI, c. i, n. 4.
Gi Original from
°°8IL UNIVERSITY OF WISCONSIN
CANON 1312
301
N
pronounce no vows, or only the one or other. For the
mere act of constituting a body or society does not yet
give rise to the dominative power in its full sense. How-
ever, if the members are obliged to obey superiors who,
in the constitutions, are said to enjoy dominative power,20
there can be no doubt that their private vows can be nulli-
fied by these superiors. Vows of novices cannot be nulli-
fied by the religious superior in virtue of direct irritation.11
Neither can the superiors, per sc, irritate vows made be-
fore profession. Yet in virtue of the higher perfection
attached to the religious state, and by reason of the ecclesi-
astical law, these private vows remain suspended, as will
be seen under can. 1315.
(2) Parents and tutors or guardians may by direct irri-
tation nullify the vows taken by boys who have not yet
completed the fourteenth or by girls who have not yet
Completed the twelfth year of age.22 Some authors "
have extended this right to grandparents, which may be
accepted as a benign interpretation, although can. 89
hardly warrants the extension.
(3) The husband, being the head of the wife according
to divine and ecclesiastical law, may nullify the vows of
his helpmate made in the married state. This rule most
probably applies to all kinds of vows made by the wife,
not only to such as are directly opposed to conjugal life."
The wife, on the other hand, cannot directly irritate any
vow of her husband. What if the wife has taken a vow
with the consent and approval of her husband? Even in
20 Thu* the Constit of the Pre-
cious Blood Fat/urs, pro Prasi
Americana reads (art i): " Sactr-
dotcs Provinaae Amcncanac svb-
iiciuntur vicario, qui auctoritate
domination potlet, cui proinde obedi-
•ftui'i: pratitare tenentur. bee
can. 675, sor.
21 Cfr. Lehmlcuhl, /. r. I, n. 460.
23 Can. 88, fi 2.
33 S, A! ph., L c, n. 239; Lchm-
Imbf, /. c., n. 458.
24 S. Alph., De Voto, n. 334.
'le
Original from
UNIVERSITY OF WISCONSIN
302 ADMINISTRATIVE LAW
this case he may nullify the vow, because his power has
not been curtailed by his former consent.26 This rule is
extended by some authors also to the mutual vow of chas-
tity,80 holding that the husband may irritate the vow, and
consequently also his own.
§ 2. Those who have power over the object of the vow,
but not over the will of the vowing person, may suspend
the obligation accruing from the vow if its fulfillment
would be prejudicial to them. This, as stated above, is
called indirect irritation. It is based on the principle that
no one can promise anything that would violate the rights
of another. Under this heading may be enumerated the
following cases :
(i) Ecclesiastical superiors, the pope, bishops, religious
superiors, also in virtue of jurisdiction, may suspend the
obligation of vows that are detrimental to the welfare of
the church, either universal or particular, or of their
subjects. This holds good also of vows made before the
vowing person became dependent on the respective supe-
rior.
D
(2) Parents and guardians may suspend the obligation
of vows made by their dependants until these are of age.
(3) A wife may suspend certain vows of her husband,
for instance, one which would cause long absence, one
of keeping severe abstinence or of not asking the debitum
a
contugate™
(4) Authors add that masters may suspend the vows
of their servants. This applies to the ancient relation be-
tween master and servant (herus ct servus), but is hardly
applicable to modern conditions.
Direct irritation requires no reason for its validity, but
a
-'"■ i hid. ; n. Z39. n. 463, who, bowerer, adrUes pro-
20 1 bid.; cfr. LehmfcubJ, L C, I, visional dispensation.
21 St. Alph., /. c. n. 235, n. H*-
oogle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 13 13 303
only for licitncss. If the vovens demands the irritation
of a vow from his or her superior, the reason must be
sincerely stated, otherwise the superior would act inval-
idly, because he is not supposed to make use of this power
without a reason.28 Of his own accord, however, the su-
perior may irritate a vow of his subject without a rea-
son, though he may grievously sin by doing so, if the vow
is important.
Indirect irritation requires no reason except the fact
that a vow is detrimental to the welfare of the Church,
or to authority, or to the salvation of the vovens. Of this
the superior is the judge.
Q
dispensation from vows
Can. 1313
Vota non reservata possunt iusta de causa dispen-
sare, dummodo dispensatio ne laedat ius aliis quaesi-
tum:
i.° Loci Ordinarius quod attinet ad omnes suos
aubditOS at que et iam peregrinos ;
2.0 Superior religionis clericalis exenaptae quod at-
tinet ad personas quae can. 514, § I, enumerantur;
3.0 Ii qui bus ab Apostolica Sede delegata fuerit dis-
pensandi potestas.
Vows that are not reserved may be dispensed from,
for a just reason, provided the dispensation does not
trench on the right acquired by a third person. Such
dispensations may be granted :
l.° By the local Ordinary to his own subjects as well
as to percgrini;
2.0 By religious superiors of exempt clerical institutes
28 Lehmtcuhl, /. c, n. 465.
jle
/■".,., ,L, Original from
UNIVERSITY OF WISCONSIN
304 ADMINISTRATIVE LAW
St
o>
Q
to all those persons that are mentioned in can. 514, § 1 ;
3.0 By those to whom the power of dispensing has been
granted by the Apostolic See.
Dispensation here means a relaxation of the rigor of
the law in a particular case. More particularly it involves
a remission of an obligation contracted before God 28; for
a vow is made to God only. A vow may justly be con-
sidered a law, because it is based upon the divine law,
although made by individual persons, since vows in gen-
eral have always been sanctioned in Holy Writ. That the
divinely instituted Church possesses the power of condon-
ing vows is evident from the universal jurisdiction granted
her by Christ. As vows, as well as the power of dis-
pensing from them, are rooted in divine law, it follows
that not even the Sovereign Pontiff can validly dispense
from them without a proportionate reason. Much less,
then, may those validly dispense without a cause, who en-
joy only a limited and dependent power.
Notice the clause: dummodo ne laedat ius alius quaesi-
turn. A vow may be made in favor of a third person, say
a poor girl, for the purpose of endowing her, or of a pious
or charitable institution, or it may be a religious vow
which affects a community. To dispense from a vow
made in favor of a third person, if the latter has freely
and fully accepted the same, perse exceeds even the power
of the Pope. Yet it must be and is admitted by most
canonists 80 that the Pope, in virtue of his supreme power
and government of the Church, may dispense from vows
which afTect cither physical persons or ecclesiastical com-
munities for the reason that this is necessary for the com-
mon welfare. Of course, there must be a solid reason.
Q
2» Lchmlcuhl, /. c, n. 470. been held by some; St. Alphonsus
SO Cfr. S. Alph., n. 356, where himself defends the statement made
♦he negative opinion ii said to have in the text.
jle
^ ,1,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 1313
305
This power cannot, however, be vindicated to inferior
prelates, and is therefore excluded in our text.
What are " vota non reservata"? Reservation must be
interpreted strictly, according to can. 1309. Hence only
those private vows are reserved which are enumerated
and comply with the conditions laid down in that canon.
Thus the vow of entering a religious congregation or em-
bracing a stricter order is not reserved.
However, some difficulty arises from the comparison
of our canon with can. 1309, because the latter mentions
private reserved vows, whilst our canon (13 13) simply
says : * vota non reservata" without making a distinction
between private and public vows. Public vows are those
taken in a religious institute approved by the Church,31
more especially the three that make up the religious
state, no matter whether these vows be temporary or per-
petual, simple or solemn. Are these religious vows in-
cluded in the power of dispensation granted by law to
those mentioned in can. 1313? It is certain that these
vows must be considered as reserved to the Holy See, at
least on account of the ius tertii." Hence the general
rule certainly forbids superiors, even though otherwise
empowered, to dispense from them. Yet our bishops for-
merly could dispense from temporary vows of poverty
and obedience in favor of non-enclosurcd members of
diocesan institutes; also from the vow of chastity if
not taken forever and absolutely.33 The question there-
fore arises, whether bishops and exempt prelates may
D
81 Can. 488, 1.
sa S. C. P. F., Aug. 24, 1885
(Colt. P. F., n. 164a).
as Ibid, and S. 0., Aug. a, 1876
(Coll. cit., n. 1461)3 " Quoad vota
non reset: ua paupertatis et obedi-
«-'!'■:.*. poise Episeoputn in utroaue
cas% dispensare, dummodo ius ex
contractu oneroso acquisitum tertii,
ipso rotionabititer invito, nam laeda-
tur. Quoad votum non reserz-atum
castitatis, ex pote state ordinaria
Episcopi, negative, nisi const et vo-
tum non fuisse perpetuum et ofr-
tolutum"
►ogle
Original fro m
UNIVERSITY OF WISCONSIN
306
ADMINISTRATIVE LAW
still make use of this power? The answer is yes, be-
cause canonists generally hold, and the Code (can.
1309) does not deny, that vows not lasting or perfect in
themselves, are not reserved. Hence, per se loquendo, the
superiors mentioned might still use their power in favor
of members with temporary vows, did not the Code, fol-
lowing a decision of the Holy Office, add the provision:
provided no right arising from the onerous contract and
acquired by a third person be violated.** Here, then, is
the practical rule that should guide superiors : Follow can.
647, which determines the dismissal of religious with tem-
porary vows only. This certainly is the canonicallv cor-
rect way, because it safeguards the rights of the third
person, vis., the religious institute.
Here we may supply from St. Alphonsus ** the informa-
tion that no vow is reserved (a) if it is made with the in-
tention of obliging oneself only sub levi, (b) if it is made
under the influence of fear, (c) if it is not complete as
to the object promised, e. g., the vow of virginity intended
only to preserve the integrity of the body; (d) if it is
made conditionally, even though the condition was ful-
filled.
Concerning the persons mentioned in our text as being
endowed with the power of dispensation, we must draw
attention to the peregrini. For the purpose of this law a
pcregrimts is any one (hie et nunc) sojourning in the dio-
cese of the dispensing Ordinary, and no inquiry is neces-
sary as to his future intentions.30 It goes without saying
that by the local Ordinary is understood also the Vicar
General and the administrator.
Those who have received delegated power to dispense
from non-reserved vows from the Apostolic See are,
»4 Ibid.
■8 Di Voto, n, 358; Lchmkuh!, I,
n. 477.
BttThus St Alph., n. 262.
Go >gle
Original fro m
UNIVERSITY OF WI5CON5I
CANON 1314
307
1:
among others, the regular confessors, i. e.t confessors be-
longing to a regular order, for, according to the common
doctrine of the school, these can dispense all the faithful
from non-reserved vows, either in or outside the confes-
sional. This power, based upon privilege, is granted by
papal delegation.37 How far it may be extended to papal
delegates, depends on their credentials.
Since none of those named in our canon can dispense
without a reason, it may be well to state some valid rea-
sons as given by St. Alphonsus:"
(1) Periculum transgressionis ac indispositionis par-
ticulars vel communis hominum fragilitas;
(2) Magna difEcultas in executione, sive praevisa fuit
sive non praerisa;
(3) Si vovens vexetur magnis scrupulis;
(4) Si votum fuit emissum ex perturbata mrnte vel
absque pcrfecta deliberatione, e. g., ex tristitia, ira, tnetu,
etc.
commutation of vows
Can. 1314
Opus voto non reservato promissum potest in
melius vel in aequale bonum ab ipso vovente commu-
tari; in minus vero bonum ab illo cui potestas est
dispensandi ad normam can. 1313.
Any good work promised in a non-reserved vow may
be changed by the vovens into one better or equally good;
but only those who may dispense according to canon 13 13,
can change it into a lesser work.
Commutation is the substitution of a promised good
work for another, according to the rules of (at least)
97 S. Alph., /. c, n. »57; Lehm-
kuhl, I, 472.
88 Dt Voto, n. 352 f.
>ogle
Original from
UNIVERSITY OF V/ISCONSI
N
■
308 ADMINISTRATIVE LAW
geometrical proportion. The quality of a good work is
measured by the spiritual profit of the vovens and the de-
gree of divine pleasure and glory involved. This, of
course, cannot be determined mathematically. The safest
commutation always is a change into greater frequenlation
of the Sacraments." The confessor, who is supposed to
know the condition of his penitent, is the best judge in
this matter.
Note that for a private change no reason is required,
provided the promised good work is commuted into one
that is obviously better. To commute the promised work
into one less good, the authority that is empowered to dis-
pense, must intervene. Therefore all those mentioned in
can. 1 31 3 may commute a non-reserved vow for a just
reason, though it may be held with probability that the
commutation would be valid even if there was no just
reason because a commutation is not a complete liberation
from a vow. It is also probable that even a vow made
under oath may be commuted.40
Can. 1315
Vota ante professionem religiosam emissa suspen-
duntur, donee vovens in religione permanserit.
m
a
Vows made before religious profession are suspended
as long the vovens remains in the religious institute
which he has joined. This includes the vow of en-
tering a stricter, say the Carthusian, order, for this vow
is not reserved.*1 But what if this vow has been accepted
by the stricter order, or if it was made under oath ? Since
a
as S. Alph., n. 243. tiff dictates a penance for the vow
40 S. Alph. /. c. De Voto, n. 345: not fulfilled, although the subject
n. igo; Lehmkuhl, I, n. 479. may remain in the more mitigated
41 C. 5. 6°. HI, 14. but the Pon- order.
ogle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 1315
.309
the text draws no distinction, the vow would be sus-
pended even in that case; in fact the stricter order could
not formally accept it until the religious had made his
profession there. But this is not intended here because it
would be a case of transfer, which is reserved.42 After
dismissal, the vows revive.
42 Cm. 63*.
>Ic
Original from
UNIVERSITY OF WISCONSIN
■
CHAPTER II
OATHS
definition
Can. 1316
§ 1. Iusiurandum, idest invocatio Nominis divini in
testem veritatis, praestari nequit, nisi in veritate, in
iudicio et in iustitia.
§ 2. Iusiurandum quod canoncs exigunt vel admit-
tunt, per procuratorern praestari valide nequit
§ 1. An oath, that is, the invocation of the Divine
Name in witness of the truth, cannot be taken except wrth
truth, judgment, and justice.
§ 2. Oaths demanded or admitted by Canon Law can-
not validly be taken by proxy.
There were heretics who rejected oaths as illicit, or min-
imized their value, or depreciated their gravity, or made
little of perjury.1 The golden mean always held by the
Church is that oaths are permitted if made under the
conditions2 laid down in this canon, to wit:
( 1 ) They must be made in truth, for what a man sol-
emnly affirms, should be in conformity with the truth,
1 Cfr. Professio Fidei Waldrnsi- TS Syn. Pisotoriens. damn., Aug. a8,
bus propotita (Denzingcr, n. 371); 1794 (ibtd., n. 1438).
Errores Wxcl. et Hus. (Denringer, 3 Cfr. the Commentators on tit.
on. 519. 55*- 5S8); frorp, damn., 34, lib. II, de lureiurando; S.
*t-a8, March 4. 1679 (ibid., nn. 1041 Thorn., II— II, q. 89; q. 98; S.
ff.)l prop. ios, Quesnellii damn.. Alph.. 1. IV, tr. II, c a; Suarcr.
Sept 8, 1713 (ibid., 1316); prop. De Relig., tr. V, de luramento, t.
XIV, 4J8 ff.
3X0
.'le
£ * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 1316 311
St
a
and when he makes a promise, he should have the inten-
tion of keeping it.
(2) They must be made with judgment, i. c, with due
and reverent consideration of the usefulness or necessity
of an oath.
(3) They must be made in justice, because no unjust
obligation is binding.
Of the various distinctions made by canonists we will
consider only the two especially referred to in our Code
— the assertory or affirmative oath, by which God is called
upon to witness an assertion of a past or present fact ; and
the promissory oath, by which God is called upon to wit-
ness the execution of a resolution, vow or agreement. In
both, the Deity must be invoked as witness and the in-
tention must correspond with the words used in the invo-
cation.
In judging the intention, which is always a difficult mat-
ter, the formula or terms of the promise must be taken
according to the customary interpretation.
It is strictly forbidden to use a name for the Deity
which is commonly considered to mean an evil spirit.8 It
is not necessary to couple the name of God with a verb in
the imperative, or subjunctive, or optative form, for the
indicative may have the same meaning, as in the formula :
" God liveth, God knoweth, before God I speak, I tell the
truth." But if these expressions were used as mere enun-
ciations, the intention of swearing would, of course, be
wanting.4
a Tlius dtocee, with the Gallas, «S. Alph., /. c, n. 134.
indicates .in evil spirit; S. O., June
jo, 1B66, ad 37 (n. 1^93).
oogle
Original from
UNIVERSITY OF WISCONSIN
3i2 ADMINISTRATIVE LAW
a
the obligation arising from an oath
Can. 1317
§ z. Qui libere iurat sc aliquid facturum, peculiar!
religionis obligations tenetur implendi quod iureiur-
ando firmaverit,
§ a. Iusiurandum per vim aut meturn gravcrn cx-
tortum valet, sed a Superiore ecclesiastico relaxari
potest.
§ 3. Iusiurandum nee vi nee dolo praestitum quo
quis privato bono aut favori renuntiat lege ipsi con-
cesso, servandum est quoties non vergit in dispendium
salutts aeternae.
Q
§ I. One who freely takes an oath, promising to per-
form something, is under a special obligation, arising from
the virtue of religion, to keep what he has promised. The
reason is that in a promissory oath God is called upon as
solemn witness of our intention to keep what we promise,
and as a guarantee and pledge of executing our intention,
and hence failure to do so is a slur and an injury to His
honor and truthfulness, and involves a sin, either mortal
or venial according to the gravity of the matter, against
religion.8
§ 2. An oath extorted by violence or grave fear is valid,
but may be rescinded by one's ecclesiastical superior.
This " great question," as St. Alphonsus * calls it, is here
solved according to the doctrine laid down in the decre-
talsPT via., that an oath taken under the influence of com-
pulsion or grave fear is valid because man is obliged to
keep what he promises under oath, lest God be found a
-
ftCfr. Saarex, /. c, I. I, c. 9; • L. e., II, n. 174; S. Thorn., II-
I. Ill, c. 16; cfr. c 1, C. mm, q. 2; II, q. 89, art. 7, ed ft.
ee. 8, 9. 17. 28, X, II. 24: Pius T Ce. 8. 15, X, II, 24.
IX, Syllabus, n. 64.
■"•
§le
£ " ^ v *\s* Original from
UNIVERSITY OF WISCONSIN
CANON 1318
313
a
N
false witness. However, the unjust extortioner has no
just claim to the thing thus promised, and therefore the
ecclesiastical authorities have absolved even sacred minis-
ters who abjured their ministry under compulsion, from
the obligation of the oath. Resides, all agree that no obli-
gation of justice arises from an unjustly exacted oath,
and that if the object (money, etc.) was already delivered,
it could be claimed in court or regained by occult com-
pensation.
§ 3. An oath taken without compulsion or fraud, by
which one renounces some private good or favor granted
him by law, must be kept, if it does not imply the loss of
eternal salvation. The case is taken from the decretals.8
Women had promised by oath to have their dowries sold.
The pope told the judges to observe the canon law, which
permitted such alienation, and to instruct the women to
keep their oath, as long as no injury was done to others
and there was no danger to their salvation.
KATURE OF OBLIGATION
Can. 1318
§ 1. Iusiurandum prornissorium sequitur naturam
et conditiones actus cui adiicitur.
§ 2, Si actui directe vergenti in damnum aliorum
aut in praeiudicium boni publici vel salutis aeternae
iusiurandum adiiciatur, nullam exinde actus conse-
quitur firrnitatem.
§ 1. A promissory oath follows the nature and condi-
tions of the act to which it is attached.
8 C. 15, 38, X. II, 24- Thus also
an oath made to a meretrix, if no
Bin ia involved, would hold; S.
Alph., n. 177; even an oath to pay
a usurer interest would bind, but
the money may be reclaimed; c. 6,
X, II, 2<.
>Ie
Original from
UNIVERSITY OF WISCONSIN
314 ADMINISTRATIVE LAW
§ 2. If the oath is attached to an act which implies
damage to others, or prejudice to the common welfare or
to eternal salvation, the act receives no strength from the
oath.
§ I explains the meaning of a promissory oath. It is
attached to a contract, stipulation, or agreement, and
lends higher sanction to the same, but the obligation of
the oath cannot be extended farther than the contract or
natural promise itself. Hence (a) a sworn promise, in
order to be valid, must be accepted before it obliges ; (b)
it cannot be condoned, abated, or forgiven. Besides there
may be other mutual or implied conditions, as is the case
in every contract; e. g., if I am able, if my superior per-
mits, etc.9
§ 2 declares that an oath has no binding force if at-
tached to an act that (a) implies injury to a third person,
for this would be evil,10 or (b) injury to the public wel-
fare, as if a judge would swear not to prosecute criminals,
or a clergyman would take a civil oath forbidden by higher
authority X1; or (c) endangers eternal salvation. The un-
derlying principle is that an oath cannot be a chain of
iniquity.
cessation of obligation
Can. 13 19
Obligatio iureiurando promissorio inducta desinit:
i.° Si remittatur ab co in cuius commodum iusiu-
c
randum emissum fuerat;
2.0 Si res iurata substantialiter mutetur, aut, mu-
tatis adiunctis, fiat sive mala sive omnino indifferens,
aut denique maius bonum impediat ;
-
flCfr. c. as, X. II, 24; Lehm- U Cfr. c. ai, X, II, 14; c. 13, X,
kohl, L c, I, n. 419. II, -•; Engcl, 1. II, tit. 24, n. 8.
10 C. is, X, II, 14; not to «peale
to parents or relatives.
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1319 315
3/' Deficientc causa finali aut conditionc sub qua
forte iusiurandum datum sit;
4.0 Irritatione, ciispensatione, commutatione, ad
normam can. 1320.
^ *>
The obligation contracted by a promissory oath ceases:
i.° If condoned by the one in whose favor it was taken;
2.0 If the thing promised is substantially changed, or
if, by reason of a change in the circumstances, the oath
becomes sinful, or entirely indifferent, or an obstacle to
attaining a higher good;
3.0 If the final cause or condition under which the oath
was taken, have ceased to exist or failed;
4.0 By irritation, dispensation, or commutation, accord-
ing to can. 1320.
The first reason has been explained above.
The second reason is a substantial change in the thing
promised. Thus, one is not obliged to marry a girl to
whom he promised marriage under oath, if the girl has
undergone a substantial change as to her health, social
condition, virginal state, etc., etc.,12 or if the change affect
the vovens so that he may incur danger of death, or in-
famy, or risk the loss of a great good. No one is supposed
to have had the intention of obliging himself under oath to
something that will gravely ia embarrass him. If the thing
becomes evil or entirely useless, for instance, if one had
sworn to punish a child and the child has amended its
conduct. Lastly, if one had taken an oath that would
deter him from entering the religious or clerical state,
it would not be binding, unless the public welfare were
at stake.
a
c •
12 S. Alph., n. 180. 18 Ibid., n. 187; for instance, the
oath of keeping a secret.
,1,., Original from
UNIVERSITY OF WISCONSIN
>gk
3*6
ADMINISTRATIVE LAW
DISPENSATION FROM OATHS
Can. 1320
Qui irritare, dispensare, commutare possunt votum,
eandem potestatcm cademque rationc habent circa
iusiurandum promissorium ; sed si iurisiurandi dis-
pensatio vergat in praeiudicium aliorum qui obliga-
tionem remi ttcrc recusent, una Apostolica Sedes potest
iusiurandum dispensare propter necessitatem aut uttJi-
tatem Ecclesiae.
Those who are empowered to annul, dispense from, or
commute vows, have the same power with regard to prom-
issory oaths; but in case the dispensation involves a preju-
dice to a third person, who refuses to condone the obliga-
tion, the Holy See alone can dispense on account of the
utility or necessity of the Church.
This power is included in the supreme power of the
Church and required for the tranquillity and peace of
individuals and society. Thus it would certainly be in
favor of the public welfare to dispense a child under age
from the oath of marrying a certain person, even though
the parents should be unwilling to have the oath an-
nulled.14
INTERPRETATION
Can. 132 1
Iusiurandum stricte est interpretandum secundum
ius et secundum intentionem iurantis, aut, si hie dolo
agat, secundum intentionem illius cui iuratur.
An oath must be interpreted strictly according to law
and the intention of the vovens, or if the latter swears de-
14 C. 19, C. 3t, q. 4; c. 15; C. 21, q. 5.
od by GoOgle
Original from
UNIVERSITY OF WI5C0NSI
CANON 1321
317
a
N
ccitfully, according to the intention of the person to whom
the oath is made.
Thus one who swears to keep the statutes of a certain
society or congregation is obliged to observe only those
which were issued when the oath was taken, not those
published later.18 Nor can the obligation of an oath be
extended beyond the intention of the vovens, because this
intention is the measure of the obligation. But if the per-
son swears deceitfully, he has only himself to blame if his
intention is not accepted and that of the person receiving
the oath substituted therefor.18
is C. 35, X, II. 24.
ie Cfr. the peculiar case stated in
c. as, X, II, 24-
gle
Original from
UNIVERSITY OF WISCONSIN
PART IV
THE TEACHING OFFICE OF
THE CHURCH
Although the authority of teaching and preaching the
Word of God belongs to the Church by virtue of her di-
vine constitution, and is therefore an inherent attribute of
ecclesiastical persons, the manner of exercising this office
constitutes part of the administrative rights of the Church.
And although the depositum fidei can receive no substan-
tial increase, yet its unfolding and explicit declaration are
evidenced through the centuries. The material increase
of the faithful and the administration of the Word of
God have necessitated methods and means which were
not so imperative in former times. Hence a certain
change is noticeable also in the spread and exposition
of the Word of God.
In Part IV the Code sets forth in a preamble the author-
ity of the Church with regard to teaching the Word of
God, and what is opposed to faith as understood by the
Church. Then the text lays down rules for preaching
(can. 1327-1351) ; sets up regulations for the institutions
which hand down the Church's teaching, vis., seminaries
and other schools (can. 1352-1383) ; the warding off of
errors as exercised through the censorship of books (can.
1384-1405) ; and, lastly, the obligations connected with
the profession of faith (can. 1406-1408).
318
>Ie
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1322
3*9
right of the church to teach
Can. 1322
§ 1. Christus Dominus fidei depositum Ecclesiae
concredidit, ut ipsa, Spiritu Sancto iugiter assistente,
doctrinam rcvelatam sancte custodirct et fideliter cx-
poncrct.
§ a. Ecclesiae, independents a qualibet civili po-
testate, ius est et officium gentes omnes evangelicam
doctrinam docendi : hanc vero rite ediscere veramque
Dei Ecclesiam amplecti omnes divina lege tenentur.
§ 1. Christ, our Lord has entrusted to the Church the
deposit of faith, in order that, by the continual assist-
ance of the Holy Ghost, she might preserve the revealed
doctrine and expound it faithfully.
The term "depositum fidei" (an allusion to I Tim. 6,
20) , may be taken in a twofold sense. In the Strict sense
the deposit of the faith comprises all the truths which
are either implicitly or explicitly contained in the written
word of God or in tradition, and must be believed as re-
vealed with divine faith. In a wider sense the deposit of
faith comprises also those truths which, though not re-
vealed, bear such an intimate relation to revealed truths
that, without them, the latter could not be, at least easily
and fully, preserved, expounded, and defended.1 Both
kinds of truth are in the lawful possession of the Church,
who is entitled to make the deposit of faith in the wider
sense an object of her infallible teaching, precisely in
order to preserve the faith holy, i. <?., unchanged, unsoiled,
and unadulterated. The duty of preservation is in itself
positive and affirmative and the Church complies with it
by interpretation or exposition; but it sometimes also re-
1 Cf r. Moxzcila, Dt Religions et E celesta, 189a, p. 615.
GoogI
Original from
UNIVERSITY OF WISCONSIN
320 ADMINISTRATIVE LAW
quires reprobation or rejection. Hence the Church has
always claimed (a) the right of defining what belongs
to the deposit of faith, i. c, faith and morals, or the ex-
tent of divine faith; (b) the right of proposing the true
meaning of revealed truth in its professions of faith; (c)
-
the right of rejecting or condemning whatever is contrary
to the teaching of faith and morals, either by rejecting
false interpretations of revealed truth, or reprobating
false conclusions of reason, censuring and proscribing
erroneous propositions, etc.; (d) the right of infallibly
judging dogmatic facts connected with certain doctrines,
as in the case of Tansenius.
This office of an infallible teacher belongs to the Cath-
olic Church not merely in virtue of her divine origin,
but by reason of the continual assistance of the Holy
Ghost promised to her by Christ, and which implies no
new revelation, but a special providence keeping her free
from error in the function of preserving and expounding
the deposit of faith.2
§ 2. The Church, independently of the civil authority,
possesses the right of teaching all nations the truth. Cor-
relative to this right is the duty of teaching men, and on
their part the duty of obtaining a knowledge of the truth
and embracing the true Church of God. This obligation,
incumbent on all, is derived from the divine law. Our
Saviour not merely advised, but commanded, His Apostles
to teach all nations and to preach the Gospel to every
creature.3 This command, intended also for their succes-
sors, itself forms part and parcel of the deposit of faith.
It is attached to the universal mission of the Church,
whose real object is nothing else but the union of men
1 Cf r. Matt. a8, 19 f.; John 14, human cooperation and investigation.
26; Mazxclla, I. e., n. 789, p. 603. 3 Cfr. Matth. 38, 19 *.; Mark 16,
The divine assistance presupposes 15 f.
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 1322 321
■
a
with God, or the salvation of all mankind through intimate
union with the Creator. This mission is incumbent on
the Church to the end of time and is fulfilled first of all
by preaching the word of God, because faith is the
conditio sine qua non of salvation.4 Faith, of course,
must here be taken as including the works of faith, or, in
the usual formula, faith and morals. The law of pre-
scription adds weight to the divine law which dictates that
everything directly related to the spiritual end or pur-
pose for which the Church was founded, is her proper
and exclusive domain, in which she is supreme, having
no higher authority than God Himself. The Church, then,
is not at liberty to abdicate this right or to shirk this duty,
for if she did so, she would cease to exist or give up her
divine mission.
On the other hand, as salvation is the individual concern
of every rational creature destined to the ultimate end for
which he is created, and since salvation begins with faith,
it follows that every person endowed with the necessary
faculties must cooperate in the attainment of that end by
adopting the means without which it cannot be achieved —
necessitate medii. Each and everyone must hear and be-
lieve those who preach the word of God by the authority
of the Church. Every preacher must have a divine call,
this is communicated to him through the organization
founded by Christ. This is the Church in which all those
•who wish to be saved must be enrolled : ,4 Unless one he-
lievcth, he shall be condemned " (Mark 16, 16). Such is,
if we mistake not, the meaning of § 1 of our canon. The
term ontnes certainly includes all men who have suf-
ficient use of reason to realize what a grievous sin is,
when they are capable of merit and demerit, reward and
* Rom. io, TO ft*.
Q
oogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
3-22
ADMINISTRATIVE LAW
punishment. Omnes, furthermore, includes every indi-
vidual without regard to ancestral or paternal prejudice
and authority. For the ultimate end of man is not bound
up with either national or family traditions, nor is pa-
ternal or maternal authority stronger than the divine com-
mand. Salvation, as we have said, is a strictly individual
concern which involves a serious obligation from the time
that reason dawns upon the child. From this viewpoint
also is to be understood the phrase: " independent er a
qualibet civlli potestate" For if the duty of acquiring
the necessary knowledge of the Gospel and embracing the
Church of God is individual, it necessarily follows that the
State cannot be allowed to interfere in a matter which
transcends its purpose — which lies entirely within the
sphere of man's temporal welfare, whereas the object of
the Church is spiritual and supernatural, reaching into
eternity. Those two ends cannot, per se, clash, for al-
though the two societies are supreme each in its own do-
main, their ends are different and only touch each other
at some points. This could not be otherwise, as the
author of both societies is one and the same God, who
created both the natural and the supernatural world.5
THE MATERIAL OBJECT OF FAITH
Can. 1323
§ 1. Fide divina et catholica ea omnia credenda sunt
quae verbo Dei scripto vel tradito continentur et ab
Ecclesia sive sollemni iudicio sive ordinario et uni-
versali magistcrio tamquam divinitus revelata cre-
denda proponuntur.
5Cfr. T-eo XTTI, "Immortal* tici, 1883, p. 6 ff.; Lib. TV, e. t;
Dei," Nov. 1, 1885; Cavagnis, /*- Bachofcn, Summa Juris Eccl. Pub.,
stitutionet luris Publiei Ecclesias- 1910, p. 110 ff.
d by Google
Original fro m
UNIVERSITY OF WISCONSI
CANON 1323 323
§ 2. Sollernne huiusmodi iudicium pronuntiare pro-
prium est turn Oecumenici Concilii turn Romani Pon-
tificis ex cathedra loquentis.
§ 3. Declarata seu definita dogmatice res nulla in-
telligitur, nisi id manifeste constiterit.
§ 1. All those truths which arc contained in the writ-
ten word of God, or in tradition, and proposed to our be-
lief as divinely revealed either by a solemn proclamation
or by the ordinary and universal magisterium of the
Church must be believed by Divine and Catholic faith.
§ 2. To pronounce a solemn judgment of this kind ap-
pertains either to a general Council or to the Roman Pon-
tiff speaking ex cathedra.
§ 3. Nothing is to be taken as dogmatically declared or
defined, unless it is manifestly known to be such.
The material object of faith (objectum materialc fidci),
or that which is to be believed, is contained either in Holy
Writ, as accepted by the Church, or in tradition, as pre-
served by the Church. However, as Holy Writ itself,
without the acceptance of the Church, would be merely a
material or indifferent book — though perhaps sacred on
account of its venerable age and contents — so tradition
would lack sacred character and obligation but for the in-
fallible judgment of the Church. This infallible judg-
ment is embodied in the teaching office of the Church, and
constitutes a special prerogative granted to the Church by
Christ, in virtue of which she cannot deceive nor be de-
ceived in matters of faith and morals.8
Our text distinguishes a solemn ex cathedra judgment
and the ordinary tnagisterium of the Church. But there
is no intrinsic difference between the two, as they derive
from the same source, vis., the divine promise and provi-
Q
« Mazzella, /. c, n. 782, p, 599.
>Ic
k ,1,., Original from
UNIVERSITY OF WISCONSIN
324 ADMINISTRATIVE LAW
dence, and have the same object and purpose. The object
is faith and morals; the purpose, to protect the faithful
from error.
The ordinary and universal teaching body of the Church
consists of the pastors together with their head, the
Roman Pontiff, no matter where the former are found,
whether scattered over the globe, or sitting united in St.
Peter's Dome. This is called the active subject of the
infallible magisterium (subicctum activae infallibilitatis).
To this teaching body corresponds the believing body of
the faithful, which latter, however, being the subiectutn
passivae infallibilitatis, cannot be separated from the
teaching body or be opposed to it. For the teaching
office or authority is the cause of the infallibility of the
Church, and both bodies are one in the same faith.
There is, however, a distinction, though not quite ade-
quate, between the teaching office of the Sovereign Pontiff
alone, and the body of teachers or the teaching Church
united to its head, i. e., the Pontiff. Without the latter, or,
worse still, in opposition to the latter, there can be no
teaching body, whilst the authority of infallible teacher is
embodied in the Roman Pontiff alone. Both the Pontiff
sole and the body of teachers united with him, enjoy the
power of teaching infallibly.
The * universal 7 and ordinary magisterium " consists
of the entire episcopate, according to the constitution and
order defined by Christ, i. e., all the bishops of the uni-
versal Church, — dependently on the Roman Pon-
tiff.9 Priests and deacons do not, ittre d'wino, belong to
the hierarchy of jurisdiction, and therefore, are not, prop-
■-■■
T The word " universal " was inherent in the Pontiff. See Coll.
added in order to distinguish it from Lac, t. VII, 176.
the official attribute of infallibility B Cfr. Pins IX, " Tuaj Ubinttr,"
Dec. 21, 1863.
v ,1,., Original from
UNIVERSITY OF WISCONSIN
>gle
CANON 1323 325
a
erly speaking, judges in matters of faith and morals, nor
can they be, hire ordinario, bearers of infallible teaching.
However, they exercise a certain teaching authority by
divine right, inasmuch, namely, as they are helpers and
co-workers of the bishops, from whom they receive dele-
gated mission, and preach and testify to the faith preached
and expounded by the episcopate. They, too, in a wider
sense partake of the assistance of the Holy Ghost.
This teaching authority, then, proposes what must be
believed by dit'ine and Catholic faith. It is indeed true
that what God has revealed may and must be believed
with divine faith* and that what the Church proposes as
part of divine Revelation, may and must be believed with
Q
divine and Catholic faith, or, shortly, with Catholic faith.
But the material object of divine faith comprises more
than the object of Catholic faith, and besides there is
something in Catholic faith which is not so clearly ex-
pressed or conspicuous in divine faith. For the former
is offered by the living word of the Church with a pre-
cision and determination that leaves no doubt as to the
supernatural origin and medium through which it is con-
veyed. This Catholic faith then commands our assent
and obedience to the full extent of a childlike belief, but
from the motive of divine veracity and truth.10
The term proposed means not merely an official or au-
a
thentic formulation of a given object or article, but an
authoritative promulgation of a law or rule contained in
revelation, commanding our full interior and exterior
assent.11
§ 2 defines, according to Vatican Council,13 the solemn
»The Blessed Virgin Mary cer- I, p. 3*4: Coll. Lac., L VII, 72 ff.,
tainly believed the Angel with di- 159 f.
vine faith, but of Catholic faith n Schccbcn, I. c., p. 179 f.
there can be no question. 12 Cone. I' at., Ses§. VII, c. II.
loCfr. Scheeben, Dogmalik, 1873, De Rerelatione ; c. III. Dt Fide; c.
oogle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
326 ADMINISTRATIVE LAW
judgment of the Church in contradistinction to her or-
dinary and universal magisterium, not as if the office of
the Supreme Pontiff were extraordinary, in the strict
sense, but because this means of proposing an infallible
truth is uncommon. Such a solemn pronunciamento or
proclamation may be made either by a general council
or by the Pope. That a council cannot be ecumenical
without the head, is evident, as explained in our Vol. II,
where the other requisites are also discussed.1*
The Pope alone, after having been duly elected and
having accepted the election, is the lawful head of the
Church, and, in virtue of his primacy of jurisdiction,
is the supreme pastor and teacher of the whole Church,
as the Vatican Council has defined.1* As such he may
define, or issue decrees on, points of faith and morals,
binding the whole Church. His decisions do not receive
their obligatory force from the consent of the Church,
as the Gallicans asserted,15 but embrace the whole extent
of the object of the infallibility inherent in the teaching
Church. The term ex cathedra means: (a) that the Pope
proclaims a dogma as the supreme teacher and pastor of
the Church; (b) that it be a matter of faith and morals,
not of history or politics disconnected with the former;
(c) that he pronounce an authoritative and final sentence
with the manifest intention of obliging (d) the entire
Church, i. e.t all individuals as well as the whole body
of the faithful.10
However, as § 3 intimates, there may be doubt as to
~
IV, De Fide et Ration* ; De Reiclo- 14 Sen. IV*. De EccL, c. 4 <Dcnz.,
lion*, can. 4; De Fide, can. 6; De n. 1683).
Fide et Rotione, can. 3; Sew. IV. is Art. 2, Dect. Cleri Call. dam.
c. IV, De Romani Pontifcu Infal- ab Innoc. XI, April n, 1682; ab
libili M agist erio. Alex. VIII, "Inter multiplies "
ia Sec can. 333 ff.; p. 217 f. Aug. 4, 1690 (Dcnz., 1189).
ia Mazzella. L c, n. 1051, p. Sax.
-
L.-i
■-:
■•■
§le
, ,|,, Original fro m
UNIVERSITY OF WISCONSIN
~
CANON 1323 327
what is declared or defined either by the universal teach-
ing Church or by means of papal ex cathedra definitions.
Therefore the theologians have laid down certain rules,
which we will briefly restate.
a) What has been solemnly defined, either by a general
council or by the Supreme Pontiff, is certainly de fide;
but not all the historical or theological assertions which
accompany a papal decision (for instance, the Bull " In-
effabilis ") are de fide.
b) What is clearly and undoubtedly contained in Holy
Scripture and Tradition as a matter of faith or morals,
must be believed, although individual errors are not en-
tirely excluded ;
c) What the universal and approved practice and
discipline proposes as connected with faith and morals
must also be believed ("Lex orandi, lex credendi").
d) What the Holy Fathers and the theologians hold
unanimously as a matter of faith and morals,17 is also
de fide.
There may be some doubt as to the form of infallible
decisions. A test for genuine ex cathedra definitions has
been found in the following formulas: (1) if those who
assert the contrary are declared heretics; (2) if the terms
" si quis" is used with "anathema" following; (3) if it
is declared that the doctrine in question must be firmly
believed by all the faithful as a dogma.18
If after the application of these rules a solid doubt
remains, the utterance is not infallibly binding, as is evi-
dent from our text.
17 Cfr. Simar, Dogmatik, 1893, man; hence he must have a human
p. 41 ff., I ix. body and a soul.
J» For instance, Christ is true
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
328 ADMINISTRATIVE LAW]
>
dangers to faith
Can. 1324
Satis non est haereticam pravitatem devitare, sed
oportet illos quoque crrores diligenter fugere, qui ad
illam plus minus vc accedunt; quare omries debent
etiam constitutiones et decreta servare quibus pravae
huiusmodi opiniones a Sancta Sede proscriptac ct pro-
hibitae sunt.
It is not enough to eschew heretical depravity, but those
errors also must be carefully avoided which more or
less closely approach heresy ; and for this reason all must
observe also those constitutions and decrees by which
the Holy See proscribes and forbids such perverse
opinions.
This text is very cautiously worded, no doubt in order
to avoid theological controversy. The question here evi-
dently turns about certain conclusions, commonly called
theological, for there is no doubt that truths either imme-
diately and expressly, or immediately but obscurely con-
tained in Revelation must be believed fide dhnnd, and,
if properly proposed, also fide catholkd et divinft. But
there is a controversy as to truths which are not directly
and explicitly contained in Revelation, but only virtually
(virtualiter) deducted therefrom by logical reasoning.
Besides there are natural truths, not revealed in the
proper sense, which have such an intimate connection
with the revealed truths of faith and morals, that the
Bf
purity and integrity of faith and morals cannot be safely
maintained and defended without them. Concerning
these some writers have asserted that they must be be-
lieved fide divind, whereas others (e. g., De Lugo) main-
>Ie
j , Original fro m
UNIVERSITY OF WISCONSIN
~
CANON 1325 329
tain that they must be believed fide ecclesiasticd only.19
Our Code does not decide this controversy. One thing
is certain, vis., that the assent which every Catholic must
give to the judgment of the Church when she pronounces
on certain errors, must be internal, and that the condemna-
tions issued by the S. Congregations may not be treated
as if they had no weight.10 For even the so-called fides
ecclesiastka requires not a mere servile silence, but a real
assent, elicited by the will, although the formal reason,
the auctoritas Dei loquentis, may not be implied.
profession of faith
Can. 1325
§ x. Fideles Christi fidem aperte profited tenentur
quoties eorum silentium, tergiversatio aut ratio agendi
secumferrent implicitam fidei negationem, con-
temptum religionis, iniuriam Dei vel scandalum
proxirni.
§ 2. Post receptum baptismum si quis, nomen
retinens christianum, pertinaciter aliquam ex veritati-
bus fide divina et catholica credendis denegat aut de
ea dubitat, haereticus; si a fide Christiana totaliter
rcccdit, apostata; si denique subesse renuit Summo
Pontifici aut cum membris Ecclesiae ei subicctis com*
municare recusat, schismaticus est.
§ 3. Caveant catholici ne disputationes vel colla-
tiones, publicas praesertim, cum acatholicis habeant,
sine venia Sanctae Sedis aut, si casus urgeat, loci
Ordinarii.
§ 1. The faithful are obliged to openly profess their
0 De Lugo, Dt Vi
p. 20, sect. 13, n.
18 De Lugo, De Vittutc Fidti, 20 " LamentabUi," July 4. 1907
disp. 20, »ect. 13, n. 109; Sinur, propp. VII and VIIL
§le
Original fro ni
UNIVERSITY OF WISCONSIN
330 ADMINISTRATIVE LAW
Christian faith, as often as silence, evasion, or mode
of acting: would involve an implicit denial of the faith,
contempt of religion, dishonor to God, or scandal to their
neighbors.
The Apostle says : " With the heart we believe unto
justice; but with the mouth confession is made unto
salvation." 2l This and the declaration of Christ : " He
that shall be ashamed of me and my words, of him the
Son of man shall be ashamed," " clearly indicate a
double duty, namely, (i) to profess the Christian religion,
and (2) not to deny it. But as a prohibitive or negative
law obliges always, whereas an affirmative or a positive
law does not oblige at every moment or on every occasion,
so in our case the text states the negative side of the
obligation, namely not to omit the profession of faith
when it is called for. Faith may be concealed by mere
silence, which, however, is sometimes permissible, for, as
stated, we need not profess the faith all the time. Nay,
it may even be necessary to hide it, namely, when great
damage, such as persecution or vexation,-8 threatens a
D
whole community. On the other hand it is certain that
whenever the public and lawful authority demands a pro-
fession of one's faith, it is never permitted to refuse it.2*
Besides, in no case is it allowed to conceal the faith en-
tirely and to be a hidden Christian, even though there
were danger of life or loss of temporal goods." Such
as wish to remain occult Christians always cannot be ad-
mitted to baptism."
Faith may also be concealed by subterfuge, and various
devices have been adopted for this purpose, some of them
Si Rom. 10, 10. JOS. C. P. F., Nov. 34, 1628 (a.
22 Luke 9. '6; Matth. io, 31. 44).
is LchmkuM, I, o. 991. 2a S. C P. F.. May 28, 163$ (o.
uS. C. P. F., Feb. 7. *»l 84).
~
(Coll., n. 604).
§le
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1325 331
despicable. Thus the custom of Christians assuming
pagan or Mohammedan names was branded as deceitful
and hypocritical and strictly forbidden by papal constitu-
tion.27 While there is little or nothing in a name as
such, if it becomes a shibboleth of heresy or apostasy and
is so regarded by the magistrate and populace., it is no
longer as sounding brass, even if the bearer interiorly
desires to retain the faith. Therefore circumstances must
be considered.
A curious kind of subterfuge was devised by cer-
tain Christians who wished to graduate or take the
doctor's degree in China, a ceremony accompanied by
religious rites, such as the offering of flowers, meat, or
incense to an idol, etc. This is never permitted. It is
also forbidden to bribe the magistrate or to " play sick "
on the day of the ceremony, because this would amount
to a lie.28 A somewhat similar artifice was employed in
good faith by some missionaries. The mandarins, in or-
der not to lose their office, made an investigation as to
the conduct of these missionaries and, in a report to
the " Celestial Son," assured him that the mission-
aries were not priests, had not preached the faith and
left no following. This report, together with the sen-
tence of exile (instead of capital punishment), had to be
signed by the missionaries themselves, so that they, as it
were, condemned themselves in order to be treated more
*
leniently. The S. Congregation decided that the mission-
aries were not allowed to sign the sentence thus worded.
On the other hand, however, they were not bound to
protest publicly against the magistrates, if these published
the sentence without the signature of the missionaries.29
27 Bcned. XIV, " Inter omni- 28 S. C P. F., Jan. 4. 1798 (n.
genas." Feb. a, 1744, 9 3-6; "Quod 644).
provinciate," Aug. 1, 1754; S. O., « S. C P. F., Dec 9* «8« <»•
Nov. 39, 1739 (Coll. P. F., n. 373)- 776).
jle
( * ^ -. i\,* Original from
UNIVERSITY OF WISCONSIN
332 ADMINISTRATIVE LAW
For in that case the malice of the act was imputable en-
tirely to the mandarins.
It may be added that no denial of the faith is involved
■
in the act of hiding one's special or peculiar state (for
instance, the priesthood) nor would such an act per se
amount to a mortal sin.30
Lastly, one's conduct, or ratio agendi, may imply a de-
nial of the faith. To this class belong certain acts which
are indifferent in themselves, but become wrong by the end
for which they are performed, or by their object or accom-
panying circumstances.81 Thus eating meat is in itself an
indifferent act, but may become sinful through either or all
of three concomitant adjuncts. Thus to eat or prepare
meat in odium fidci, in contempt of religion, is a grievous
sin because the end is sacrilegious, and may amount to a
denial of the faith, if the meat is taken as a signum pro-
testatirum of apostasy. If the act is performed merely
for economy's sake, without any religious motive, no
denial is involved. Christians in the Orient were per-
rnitted to build, or help build, a Mohammedan mosque
because compelled to do so by the Turks; at least the
S. Congregation decided that they were not to be dis-
quieted." A different answer was given by the Holy
Office in reply to the question whether Christians were
allowed to build, or cooperate in building, a pagan temple
because they feared for their life or were in danger of be-
ing exiled. This was declared forbidden.8* There is an
soLchmkuht, X, n. 292, according interpreted as signs of public joy,
to De Lugo, Suarez, etc. even though idolatrous customs may
BIS. O., April 19, 1635; May 27, be connected with them, but the in-
1671, n. i; June so, i866t n. 38 tcntion of contribution to idolatry is
(Call. P. F., nn. 83, 195. ugj); never permissible. S. C P. F.,
S. C. P. F., June 26, 1*20 (n. 747). Sept. 12, 1645, n. 114.
The end is also perceptible in the si S. C P. F., Sept. 26, 1840. n.
following case: Christians may con- 14 {Coll., n. 9' 4).
tribute to public funds or public " S. O., Jon. 8, 1851, ad 1
demonstrations, if these may be (Coll., n. 1055).
gle
£ * ^ ^ ,l„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1325
333
-
--
essential difference between a mosque and a pagan temple,
because the latter involves idol worship, whereas the for-
mer does not. Besides, the cases arc somewhat different
in this that the latter implies voluntary cooperation,
whereas the former contains an element of violence.
That circumstances, too, may change the nature of an
act is evident from the example of certain Christians who
were made to trample on the cross. To walk over or
to step on an object, is in itself a merely material and
indifferent act, but intentionally to trample on the cross,
if seen and perceived, is sacrilegious. The case was as
follows: The pagans placed crosses across the road and
in narrow gates, where Christians had to pass. The de-
cision was: (a) if the Christians were not warned, they
should walk as if nothing had happened; but (b) if they
were warned, they should take care not to step on the
crosses; (c) if they were warned, but could not pass by
without stepping on them, they should protest to the by-
standers and pass over them as reverently as they could.8*
Idol worship in whatever form, for instance, in the
shape of tablets dedicated to the M seat of such and such
a soul," is incompatible with the Christian faith. There-
fore such tablets must be destroyed, if they are in the
exclusive possession of Christians, or, if pagan families
have a share in them, may be restored to these.38 A con-
vert from the Anglican Church may not hide his faith
so as to retain a Protestant minister in his home and
assist at the prayer meetings, even though the convert
recites the Catholic prayers; nor is he allowed to leave
his children in the care of heretical tutors.8"
Concerning schismatic priests the following decisions
may be noted: Assistance at schismatic services is not
M S. 0-, Intl., 1863 <C#//. P. F.,
n. 1335)-
as S. O., Aug. *o, 177S <n- 53°>-
S» S. O.. July 29, 1690 (n. 246).
oogle
Original from
UNIVERSITY OF WI5C0NSI
~
334 ADMINISTRATIVE LAW
allowed. An Armenian priest of the Catholic faith is
not allowed to pour water secretly into the chalice in the
sacristy." Catholic Nestorian priests are not allowed
to hear the confessions of their schismatic coreligionists,
even though by their refusal they risk losing their sup-
port ; nor are they permitted to recite the names of Dios-
curus or Nestorius at Mass, even though they merely
intend to honor the patron saints of these two heresi-
archs.88
As to clothes, the answer is always the same: if
they are distinctive and notorious signs or proofs of in-
fidelity, heresy or apostasy, a Catholic is never allowed to
wear them.80
For the rest, the rules on material and formal co-
operation should be consulted.
§ 2 defines three classes of Catholics who have suf-
fered "shipwreck of the faith."40 The first class is
that of heretics who, having been baptized, retain the
name of Christians, but obstinately deny or doubt some
of the truths that must be believed by divine or Catholic
faith. The second class is that of apostates, who have
given up the Christian faith entirely and fallen away from
it. The third class is that of schismatics, who refuse to
obey the Sovereign Pontiff or to live in union with those
who submit to him.
Heresy, therefore, supposes the valid reception of Bap-
tism, which is the means of Christian initiation. But
there is a difference in the attitude of different heretics.
Some have been validly baptized and raised in a sect
the truthfulness of which they have never doubted.
S7 S. O., Aug. 7, 1704 fn. 267). 89 S. 0., Aug. a8, 1669 (Coll., n.
They do it to hide their faith, be- 185).
cause the Monophyites abhor * mix- D© Cfr. Lehmkuhl, /, c, n. »94.
ture of wine with water. -10 I Tim. 1, tp.
>Ie
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1325 335
Such are called material heretics, who may, nay should
remain where they are, as long as no doubt arises in
their mind concerning the truth of their sect. Others
have doubts, but make no effort to disperse them, and
are not ready to accept the truth, even though convinced
of it. Such are formal heretics. To this we may also
reckon those so-called Catholics who interiorly reject
or doubt any revealed truth, provided the rejection as
well as the doubt be obstinate (pertinax), because this
characteristic constitutes malice. Obstinacy may be as-
sumed when a revealed truth has been proposed with
sufficient clearness and force to convince a reasonable
CI
man. Of course, the character of each individual must
be taken into consideration.
Apostasy differs from heresy only as to the extent of
the material object of faith denied; the specific malice,
viz., the denial of God's truthfulness, or of the divine
authority, is the same in both.41 An apostate, therefore,
is one who rejects the whole deposit of faith and becomes
an unbeliever, whilst a heretic is one who wilfully rejects
or doubts only the one or other truth revealed and pro-
posed by the Catholic Church.
Pure schism involves mere stubbornness or disobedience
to the Roman Pontiff, or to a bishop, as the case may be ;
but in reality it hardly ever occurs without heresy. The
Puseyites endeavored to convince the Apostolic See of
the contrary ; but the Holy Office very properly decided
that separation from the See of Peter meant a split in the
unity and apostolicity of the Church and setting up an-
other Church in place of the one founded by Christ.42
§ 3 ivarns Catholics against disputations and confer-
ences with non-Catholics. To hold such a disputation
41 Cf. Lclimkuhl, /. *,, I, n. 399. 43 S. O., Sept. 16. 1864 (Colt.
"■
P. F.. n. 1262).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
336 ADMINISTRATIVE LAW
or conference, especially in public, requires the special
permission of the Holy See, or, in urgent cases, of the
local Ordinary. This has been the attitude of Apostolic
See ever since the beginning of the seventeenth century,
though public disputations and conferences — including
the so-called congresses or parliaments of religion — are
not absolutely forbidden, but may be tolerated, under the
condition mentioned, when there is hope of a greater
good.43 The S. Congregation has often expressly for-
bidden them on the ground that they do more harm
than good, since false eloquence may cause error seem-
ingly to triumph over truth.*4 Religious superiors are
urged to forbid such public disputations and conferences
to their missionaries.48 This rule in our opinion also
affects public disputations with Socialists, because their
tenets often contain heresies.46
When such disputations are expressly permitted, care
should be taken that only capable and prudent speakers
be employed to defend the Catholic side.47
bishops as judges in matters of faith
Can. 1326
Episcopi quoque, licet singuli vel etiam in Conciliis
particularibus congregati infallibilitate docendi non
polleant, fidelium tamen suis curis cornmissorum, sub
auctoritate Romani Pontificis, veri doctores seu magis-
tri sunt.
What is said in this canon has been partly explained
under can. 1323, where it was said that the bishops,
43 S. C. P. F., Feb. 7, »*45 (n. •« S. C. pro Xeg. Eccl. Extr.,
na). Jan. *7, 1902; n. VIII (Anal. EccL,
44 S. C. P. F.. Feb. 7, "625 (n. 8). X. 74).
45 S. C P. F.t Dec 18, 186a (n. 47 S. C. P. F., Dec. 18, 1662 (n.
148). 148).
■■dbyC .'Ic
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 1326 . 337
dependently upon the Roman Pontiff, are true teachers of
the flock confided to them. But neither singly nor in
councils do they share the infallibility which is their
prerogative when acting as the ordinary teaching body of
the Church under the leadership of the Sovereign Pon-
tiff, or when united under the same at a general coun-
cil. One case in particular illustrates the second clause
of our text, viz., that the bishops must be regarded as
true teachers of their flocks, as long as they obey the
ordinances and laws issued by the Roman Pontiff. It is
the question of interest taking which has repeatedly agi-
tated the minds of confessors and bishops.48 To take
interest on money loaned seemed to be prohibited, espe-
cially since Pius VIII (" Vix pervenit") had forbidden
the practice to a certain extent. But his words seemed
ambiguous and did not cover various cases. Therefore
it was left to the bishops to decide in individual cases,
whether it was allowed to accept and retain interest, pro-
vided they followed the principles laid down in the papal
constitution ; and the confessors had to abide by their
decisions. This may be applied to disciplinary cases in
general and also to rubrics. But in case of doubt re-
course may be had to the S. Congregations.*9
•is Cfr. S. 0-, Aug. 18, 1830, Aug. *o S. O. May 9, iB*i, ad a (.Coll.
31. 1831; Jan. 17, 1838 (Denr.. nn. P. F., n. 755. Kentucky).
1470 «.).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
TITLE XX
PREACHING THE WORD OF GOD
Can. 1327
§ 1. Munus fidei catholicae praedicandae cornmis-
sum praecipuc est Romano Pontifici pro universa Ec-
clesia, Episcopis pro suis dioecesibus.
§ a. Episcopi tenentur officio praedicandi per se
ipsi Evangelium, nisi legitimo prohibeantur impedi-
mento; et insuper, praeter parochos, debent alios
quoque viros idoneos in auxilium assumere ad huius-
modi praedicationis munus salubriter exsequendum.
~
Preaching the word of God is a necessary means of
spreading as well as preserving the deposit of the faith.1
This office emanates from the power of jurisdiction, of
which the magistcrimn ccciesiasticum is a part. The
Sovereign Pontiff is the supreme teacher of the faithful
and consequently has the duty, above all o'hers, of preach-
ing the Catholic faith to the whole Church. This, of
course, means that there is no Catholic church on the
whole earth in which he is not allowed to preach without
interference from any, either ecclesiastical or civil, au-
thority. But it also implies that his pastoral letters and
other instructions need no approbation or permission
from the civil government. St. Peter asked neither Nero
(54-68) nor the Jewish synagogue for permission to
-
l Bened, XV, " Httmoni generis,"' June 15, 1917 M. Ap. S., IX,
305 ff.).
338
;Ic
I , Original from
UNIVERSITY OF WISCONSIN
CANON 1327 339
address the faithful of Pontus, Galatia, Cappadocia,
Asia, and Bithynia, nor do we read of any such per-
mission being asked for by Clement I. Up to the eleventh
century there is barely a trace of what later on came to
be called placetum regium. On the contrary, Pope
Paschal II (1099-1118) complained against Henry I of
England that letters sent by the Apostolic See were
subjected to the placet of his royal majesty.2 The quar-
rel between Philip IV, the Fair, and Boniface VITI is too
well known to need repetition. Other r egotistically
tainted governments followed the perverse example of
Henry and Philip up to even the " enlightened " nine-
teenth and twentieth centuries. Government supervision
was, and in some countries s is still, applied to the pas-
toral letters of bishops. That such a course of action
is against the divine law needs no proof. Obedience is
due to God rather than to men.4 Nor is there any sedi-
tious inference contained in this assertion. For a law
is a law in the proper sense only if it conforms to the
eternal or natural law, which requires conformity with
the Divine Mind, the source of every right and incapable
of self-contradiction. Hence no human authority, no mat-
ter on what pretext, can lawfully command what runs
counter to a divine command. A human law, therefore,
forbidding the free and unhampered preaching of the
divine law cannot be acknowledged as binding the con-
science.5 This is also evident from the nature and con-
stitution of the Church as a perfect, legal, and necessary
society, independent in the choice of the means conducive
2 Cf. Friedberg, Crenitn rrtiisektm the Lenten letters are itill subject
Stoat und Kirche, 187a, p. 7*91 to the approval of the cantonal
Bachofen. Surnma Inris Eccl. Pub- government It
Hex, 1910, p. 57. * Art. Si '9-
a Thus in the Clinton of St Call, « Cfr. Leo XIII, " SafiUntiae/'
Switzerland, the pastoral and even Jan. 10. 1800.
jle
k .,1,, Original fro ni
UNIVERSITY OF WISCONSIN
~
340 ADMINISTRATIVE LAW
to its spiritual and supernatural end. Finally, if the
Vicar of Christ on earth is bound to teach the faithful,
it is his inherent right to do sot and in the exercise of
this right no human power may hinder him. This right
is inalienable because inherent in the primacy of jurisdic-
tion that spans the universal Church.
The bishops, in virtue of their jurisdiction, are obliged
to preach the Catholic faith each within his own district
or diocese. This duty, as § 2 states, they must perform
personally, unless they are lawfully prevented. For as
they are, as a rule, chosen for their personal qualities
(d* industria personae), they are in conscience bound
to break the spiritual bread for their flocks.
Some of the lawful reasons which may prevent an
Ordinary from fulfilling this duty, are mentioned in a
papal decretal." They are: manifold pastoral or episco-
pal occupations, such as the diocesan visitation, attend-
ance at councils or synods, bodily infirmity, hostile in-
vasions, etc. The decretal adds within brackets : * ne
dicamus defectum scientiae, quod in eis reprobandum est
omnino, nee de caetero tolerandum."
If a bishop is legitimately prevented from preaching,
he should entrust this duty to another,7 as Bishop Valerian
did when, on account of defective speech, he commis-
sioned St. Augustine to preach in his place.
Our text continues that bishops should also employ, not
only pastors, but also others ivho are fit or capable ( men
not women) as co-workers in preaching the word of
God. The pastor's duty is evident, and it is also clear
that the bishop is responsible for the pastors under his
jurisdiction. The S. Congregation once recommended
to an archbishop (of Antivari) to explain the catechism
flC 15, X, I, 31. TR*g. Iuris 68, 72 in 6°.
§le
£ * ^ 4 ,l„ Original from
UNIVERSITY OF WISCONSIN
~
CANON 1328 341
on Sundays and holydays if the pastor failed to do so.8
The reason is that the bishop is par excellence the pastor
of the diocese, and the divinely constituted judge in mat-
ters of faith and morals, as successor of the Apostles.9
If the bishop is pre-occupied by other pastoral work, the
pastor of the cathedral church is obliged to preach for
him.10
The text says that the bishop should choose idoneos
viros, fit or capable men, to assist him in preaching.
This means clergymen who possess the qualities neces-
sary for sacred preachers and ministers of God, to wit,
a sufficient familiarity with sacred science and the moral
virtues that impress the people Besides, natural gifts
are necessary, lest they appear to tempt God.11 Preach-
ers who possess these qualifications will preach with salu-
tary effect (salubriter praedicabunt) because they will
not preach for the sake of showing off their eloquence or
of gaining applause.12
It goes without saying that the bishop may call upon
any member of his diocesan clergy (secular or non-ex-
empt religious) to fulfill this duty.
Concerning exempt religious see can. 608, § 1.
missio canonica
Can. 1328
Nemini ministerium praedicationis licet exercere,
nisi a legitimo Superiore missionem receperit, facili-
tate peculiariter data, vel officio collato, cui ex sacris
canonibus praedicandi munus inhaereat.
IS. C. P. F., Nov. 38, 1785 10 S. C. C, Sept 14. 1748 (R«ch-
iColl., n. 581). ter, Trid., p. u, n. 5).
9 Bened. XV, " Human* generis," 11 Bened. XV., " Humani gem-
June 15. 1917 M. Ap. S.. IX, 307); eris " (A. Ap. S.. IX. 309).
Trid., Sew. 5, c. 2, it ref. it Ibid., (/. c, p. 308).
oogle
f^ ^ v ,1,., Original from
UNIVERSITY OF WISCONSIN
342
ADMINISTRATIVE LAW
No one is allowed to preach the word of God unless
he has received the tnissio canonica from his legitimate
superior. This is a requirement of the divine " as well
as of human law, for the latter clearly supposes that
preaching is an attribute of jurisdiction which must be
obtained from the lawful authority.
The missio canonica may be given either by means of
a special faculty, or by virtue of an office to which the
right of preaching is attached by ecclesiastical law.
As to the special faculties required, consult Ch. II of
this Title. Here we will only state that the offices to
which the right and duty of preaching are attached by
law, are those of the Sovereign Pontiff, bishops, and
pastors. Thus a cathedral prior or collegiate provost,
to whom the care of souls is entrusted, is obliged to
preach.1*
13 Rom. 10, is: " Humani gen- 26, 1630 (Richter, Trid., p. 23. in.
eru " (A. Ap. S., IX, 307). 3 i. tt piuries).
i*S. l. C, July jo, 1 591; May
►ogle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER I
the pastor's duty
catechetical instruction
Can. 1329
Proprium ac gravissimum ofncium, pastorum
praesertirn animarum, est catecheticam populi chris-
tiani institutionem curare.
It is the proper and a most weighty duty, especially
of pastors of souls, to provide for the catechetical in-
struction of the people.
The term " catechetical instruction," as is well known,1
means oral instruction in the elements of religion, espe-
cially as a preparation for initiation into the Church.
It is now usually, though not exclusively, conducted by
means of questions and answers. We need not dwell
upon the importance of this instruction, as Pius X has
brought its necessity home to all concerned in his encycli-
cal letter " Acerbo mmis," of April 15, 1905.
Can. 1330
Debet parochus :
i.° Statis temporibus, continent! per plures dies in-
stitution©, pueros ad sacramenta poenitentiae et con-
firmationis rite suscipienda singulis annis praeparare;
2.0 Peculiari omnino studio, praesertirn, si nibil ob-
lCatk. EncyeL, Vol. V, 7$ K» C v., "Doctrine. Christian."
343
§le
£ - ^ ^ ^\ , Original fro m
UNIVERSITY OF WISCONSIN
344 ADMINISTRATIVE LAW
sit, Quadragesimae tempore, pueros sic instituerc ut
sancte Sancta primum de altari libent.
;
Can. 1331
Praeter puerorum institutionem de qua in can. 1330,
parochus non omittat pueros, qui primam commun-
ionem recenter receperint, uberius ac perfectius cate-
chismo excolere.
Can. 1332
Diebus dominicis aliisque festis de praecepto, ea
hora quae suo iudicio magis apta sit ad populi fre-
quentiam, debet insuper parochus catechismum Bdeli-
bus adultis, sermone ad eorum captum accommodate
explicare.
■n
The pastor is obliged :
i.° To prepare the children for receiving the Sacra-
ments of Penance and Confirmation each year by a con-
tinuous course of instructions held at stated times;
2.0 To instruct the children with special care, if noth-
ing prevents him, especially, during Lent, in order that
they may worthily receive First Holy Communion.
Besides the instruction of children mentioned in the
preceding canon, the pastor shall not neglect to instruct
the boys and girls who have already received their First
Communion more fully in Christian doctrine.
On Sundays and other holydays of obligation he shall,
at an hour convenient for the people, teach catechism
also to his adult parishioners, in a manner adapted to
their capacity.
We notice some mitigation in the wording of our text,
as compared with the injunctions of Pius X. For in-
stance, no mention is made in can. 1330, n. 2 of instruc-
jle
f** ^ v -iL-. Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1332 345
tions to be given every day in Lent; in can. 1332 the
11 full " hour is omitted as well as the addition that no
Sunday shall be excepted, etc. These are wise modera-
tions for a Code binding the universal Church. But
even the rulings of the Code need some modification in
missionary countries, including our U. S., as we know
from experience. Take, for example, a pastor who has
to attend two missions, twelve or more miles apart. He
has perhaps to start a fire in both churches, then to hear
confessions, sing high Mass at least in one church, and
preach in both, perhaps in different languages. Then
he ought to teach catechism for another hour before
making his train — and all this with an empty stomach.
These are not fanciful, but real conditions, which can-
not be compared to those existing around Treviso, Man-
tua, or Venice. Hence it must be left to the diocesan
Ordinaries to determine how far the prescriptions of the
code can be carried out. Meanwhile every pastor ought
to impress upon his mind what Pius X says concerning
catechetical instruction: — that it is the milk which St.
Peter wished the faithful to yearn for in all simplicity
like new-born babes ; that the labor of the pulpiteer pre-
supposes that of the catechist; that ornate and flowery
sermons often tickle the ears, but utterly fail to touch the
heart,2 etc.
The best opportunity for effective catechetical instruc-
tion is offered by the schools, which, we are happy to say,
flourish in our country as nowhere else. Where such a
school exists, the pastor can easily find convenient hours
for extensive catechetical work.
a " Actrbo nimu"; »cc Am<T»g ticcl. Rev., 1905, Vol. XXXII, p.
606.
.'Ie
k ,1,., Original from
UNIVERSITY OF WISCONSIN
346 ADMINISTRATIVE LAW
CATECHISTS
a
Can. 1333
§ 1. Parochus in rcligiosa puerorum institutione
potest, imo, si legitime sit impeditus, debet operam
adhibere clericorum, in paroeciae territorio degentium,
aut ctiam, si neccsse sit, piorum laicorum, potissimum
illorum qui in pium sodalitium doctxinae christianae
aliudve simile in paroecia erectum adscript! sint
§ a. Presbyteri aliique clerici, nullo legitimo impedi-
mento detenti, proprio parocho in hoc sanctissimo
opere adiutores sunto, etiam sub poenis ab Ordinario
infligendis.
§ 1. If the pastor is lawfully prevented, he may, nay
should employ the help of clerics living in his district,
for the religious instruction of the children. He may also,
if need be, call upon pious laymen, especially such as
belong to the Sodality of Christian Doctrine or a similar
organization represented in the parish.
This is an expedient for overburdened pastors and
missionaries who can visit their parishes only at intervals.
It might be good practice for seminarians of the last
year to spend a few hours in the school room, not as
hearers, but as teachers, provided the professor of pas-
toral theology or homiletics has taught some method.
The Confraternity of Christian Doctrine was founded
in 1560 in Rome and approved by Pius V, in 1571. Of
late it has spread all over Italy and other countries.
Laymen, in the text, includes members of the female
sex, provided, of course, they enjoy the necessary qualifi-
cations of knowledge, virtue, and strength. School-teach-
ers may be supposed to be peculiarly adapted to this task.
Male and female cotechists are frequently employed in
JbyC jle
% ,] , Original fro m
UNIVERSITY OF WISCONSIN
CANON 1334 347
missionary countries. They should be chosen by the
missionaries with care and only such should be called to
this important office as are at least twenty-five years of
age and possess the necessary moral and mental qualities.5
§ 2. Priests and other clerics, who are not lawfully
prevented, must assist their pastor in this most holy
work, and may be punished by the Ordinary if they fail
to do so.
It has been the general practice, also of the Roman
Court,4 not to oblige any cleric to work not prescribed
in the law or the foundation document. This rule was
upheld in principle by Benedict XIV, though the great
Pontiff strongly insisted on the necessity of proper in-
struction in Christian doctrine.0 He found a means of
compelling all priests and clerics, even those not charged
with the care of souls, to assist in that holy work. The
bishop should not promote clerics who are remiss in
this duty to higher orders or better positions if they
refuse to obey his commands. This is the punishment
adverted to in our canon. It is a powerful weapon in
the hands of the bishop, who may lawfully wield it under
the law, though no censure can be inflicted for refusal,
because neither the old nor the new law mentions such a
penalty sub pocnis or censuris infligcndis.
m
OBLIGATION OF RELIGIOUS
a
Can. 1334
Si, Ordinarii loci iudicio, religiosorum auxilium ad
catecheticam populi institutionem sit necessarium, Su-
■
periores, etiam exempti, ab eodem Ordinario requisiti.
■ S. C. P. F.f Feb. 29, 1836 (n. i" Etsi minim*," Feb. 7. 174*.
846). S 6.
* S. C. C, July 15. 1882. ad 10
{A. S. S., XV. 334 i).
gle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
Q
..-.
348 ADMINISTRATIVE LAW
tencntur per sc vel per suos subditos religiosos, sine
tamen regularis disciplinae detrimento, illam populo
tradere, praesertim in propriis ecclesiis.
If the local Ordinary is convinced that the help of re-
ligious is required for the catechetical instruction of the
people, he may call upon the religious superiors, including
those of exempt orders, and they are obliged to comply
with his orders, either personally or through their sub-
jects, especially in their own churches, provided the regu-
lar discipline does not suffer. Religious, therefore, should
give catechetical instructions, especially in their own
churches. We may repeat here what Benedict XIV said
concerning regulars, to wit, that they should not interfere
by their celebrations with instruction in Christian doc-
trine, nor by iheir solemnities/1 draw the people away from
their parish churches while instructions are given.
Although no penalty is attached to this law, it imposes
a moral obligation, the extent of which must be gauged
by the need of the people, as well as the scarcity and
physical inability of the secular clergy.
We wish to draw attention to the clause: "sine tamen
regularis disciplinae detrimento" which also occurs in
can. 608, § 1. This means, first and above all, that if the
Rule or Constitution approved by the Holy See excludes
such work, the religious are not bound by this canon, and
therefore the bishop has no right to call on them. It
means, secondly, that, if the Constitutions permit
such work, the discipline must be safeguarded. Thus at
least the ordinary choir service, the school work, either
in the seminary, college or school, must not suffer any
serious detriment. And, lastly, regular discipline also
means community life. Consequently, if by frequent calls
e"£*/i minimi," I 15.
ogle
Original fro m
UNIVERSITY OF WISCONSIN
■-■-
CANON 1335 349
the religious should sustain a serious setback in their reli-
gious or common life, the religious superior would be en-
titled to modify the bishop's command. It may also be
permitted to state that if the bishop and clergy wish to be
aided by the religious of the diocese, they are reasonably
expected to aid and support the diocesan institutions con-
ducted by such religious. This is not only a dictate of
natural law, but is also insinuated by can. 608, § 2.
duties of parents
Can. 1335
Non solum parentes aliique qui parentum locum
tenent, sed heri quoque ac patrini obligatione adstrin-
guntur curandi ut omncs sibi subiectt vel commendati
catechetica institutione erudiantur.
Not only parents, but also those who take the parents'
place, as well as masters and sponsors, arc obliged to see
to it that their subjects and proteges receive catechetical
instruction.
This obligation rests on the natural as well as on a
positive law, which latter is here briefly formulated ac-
cording to Benedict XIV, who urged bishops and pastors
to remind all those above mentioned of their grave obliga-
tion to instruct their subjects in the catechism/ The
natural obligation arises from the fact that the ultimate
end of all men is God, who must be known in order to be
served and loved. It also follows from the superiority
of the soul to the body. Hence at least as much care
should be bestowed upon acquiring the knowledge of
salvation, as upon the acquisition of natural science.8
T " Cum rfligiosi," June 26, i 7 54. ■ Cfr. Leo XIII. " Humonum
8 4. gnu j," April 20, 1884.
oogle
**"* ^ .. i\s* Original from
UNIVERSITY OF WISCONSIN
350 ADMINISTRATIVE LAW
diocesan regulations
Can. 1336
Ordinarii loci est omnia in sua dioecesi edicere quae
ad populum in Christiana doctrina instituendum spec-
tent ; et etiam religiosi exempti, quoties non exemptos
docent, cadcm servare tenentur.
This canon corroborates what was said above about
the authority of the local Ordinary to regulate instruc-
tion in Christian doctrine. He is entitled to issue de-
crees with reference to the instruction of the people in
Christian doctrine, and these regulations must be obeyed
also by exempt religious, whenever they impart religious
instructions to anyone not possessed of the privilege of
exemption. It follows that all those persons mentioned
in can. 514, § 1, to wit, servants, pupils, guests, and the
sick, must, as far as their condition permits, attend the
catechetical instructions given by the pastor or his assist-
ants. For these persons are not properly exempt.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
CHAPTER II
SERMONS
faculty required for preaching
Can. 1337
Turn clericis c clcro saeculari, turn religiosis non
exemptis facultatem concionandi pro «uo territorio
solus concedit loci Ordinarius.
The secular clergy as well as non-exempt religious
receive the faculty of preaching only from the local Or-
dinary for his respective diocese.
According to a medieval decretal, some clerics usurped
the office of preaching under the cloak of piety without
being authorized either by the Apostolic See or a bishop.1
There is in this decretal a hint that members of the rising
religious orders were at times carried too far by their
zeal. It is therefore not surprising that the same papal
constitutions * which regulated the matter of hearing con-
fessions, also settled the question of preaching. The
law was challenged by Wiclif and his followers, who
maintained that any deacon or priest may preach the
word of God without authority from the Apostolic See
or from a Catholic bishop.3 Therefore the Council of
Trent again insisted upon previous examination for all
who assume the office of preaching.4
1 C i], I 6, X, Vj 7, de haercli- a Prof. 14 dam. (cf. Dcniingcr,
rw. n. 400).
8 Greg. XV, " Inserutobili." Feb. * Sess. 5. c. a, De Ref.; S. C.
5, 1623, 9 3. 6; Clement X, " Su- EE. rnd RR., July 31, 1894 iColl.
perna," June 4, 1670, ! i, 3. P, F., n. 1878).
351
jle
^ ,|,, Original fro m
UNIVERSITY OF WISCONSIN
352 ADMINISTRATIVE LAW
Note the word : solus loci Ordinarius. The Ordinary
alone is competent to grant the faculty of preaching.
Hence no municipality or university may grant it, al-
though they may select the preacher, for instance for
Lent, as happened in certain Italian communes.5 It also
means that the faculty given hy the bishop is sufficient,
and consequently no pastor or rector can lawfully reject
one so approved.*1
religious preachers
Can. 1338
§ i. Si concio habenda sit tan turn ad rcligiosos cx-
emptos aliosve de quibus in can. 514, § 1, facultatem
concionanci in religione clerical! dat eorum Superior
secundum constitutiones ; qui in casu potest earn con-
cedere etiam lis qui de clero saeculari vel de alia re-
ligione sunt, dummodo a proprio Ordinario vel Su-
periore fuerint idonei iudicati.
§ 2. Si concio habenda sit ad alios, vel etiam ad
moniales regularibus subiectas, facultatem religiosis
quoque exemptis impertit Ordinarius loci in quo con-
cio fie t ; conciona tor autem, verba facturus monialibus
exemptis, licentia Superioris regularis praeterea in-
diget.
§ 3. Facultatem vero concionandi apud sodales re-
ligionis laicalis, quamvis exemptae, dat loci Ordi-
narius; scd concionator nequit facultate uti sine Su-
perioris religiosi assensu.
Formerly7 a distinction was drawn between churches
I S. C. C, April 31, Aug. n, 7 Trid., Sen. 5, c a, Dt Ref.?
1742: Aur. 3. 1743 (Richter, Trid., Greg. XV, " Injcrutobili"; Clement
p. *2, nn. 7 *•)■ X, " Suptrna/'
«S. C. C, Jane 27. »744 CM*
a. 15).
oogle
v ^|rt Original from
UNIVERSITY OF WISCONSIN
CANON I338 353
a
that belonged to regulars and such as did not belong; to
them, or to another religious order. Our text distin-
guishes between the persons preached, or the hearers.
§ i rules that religious of a clerical order obtain the
faculty of preaching from their own superiors, according
to their constitutions, in case they preach to exempt re-
ligious of their own order or to such who are mentioned
in can. 514, § 1. For these the respective superior may
also grant the faculty to the secular clergy, or to members
of another religious institute, provided, however, that the
secular cleric has been previously approved or found
fit by his Ordinary and the religious by his superior.
This law has been widened, as is apparent from a
comparison with former regulations on the same subject.
For what was formerly considered a privilege of the
regulars in the strict sense, is here applied to all religious
clerical institutes, whether exempt or not, and the dis-
tinctive character is attached to the hearers only, who
must be exempt or share exemption de facto, as is the
case with the persons mentioned in can. 514, § I, i.e.,
servants, guests, students, and sick persons, besides the
professed members and novices. However, like the Tri-
dentine Council and various papal decrees,8 our text
requires fitness in the preacher, as defined in can. 1340.
The text mentions only religiosos exemptos aliosve, in
the masculine gender, thereby evidently excluding the
female sex, as is patent also from the following section.
§ 2. If the sermon is to be delivered before others,
including nuns subject to regular prelates, the faculty
of preaching must be granted by the Ordinary in whose
diocese the sermon is to be delivered ; and the preacher
who addresses exempt nuns must also have the permission
8 Sw». 5, c. z; Se»s. 24, c 4. D* Ref., and the constitutions
quoted.
§le
Y ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
354 ADMINISTRATIVE LAW
a
of the regular superior to whom they are subject.8
Preaching to nuns (tnoniales with solemn vows) is done
at the grate, so that the preacher is not obliged or per-
mitted to enter the enclosure, which is here understood
to be the papal one.
The others (alios) are all non-exempt religious, as well
as laymen and clerics who do not share the exemption
mentioned in can. 514, § 1.
§ 3- T° preach for members of a religious lay insti-
tuteF for instance, the Christian Brothers, even though
they may enjoy exemption, a priest must obtain faculties
from the local Ordinary, in whose diocese the religious
•a
house is located. However, he cannot make use of his
faculty unless the religious superior of the institute gives
his consent. This ruling is partly taken from the Con-
stitution of Leo XIII, " Conditae" a. d. 1900, but has
an added clause requiring the consent of the religious
superior. The superior and his religious are here un-
derstood of institutes of men, not of women, § 2 having
sufficiently provided for the latter. Moreover, it would
not be proper for religious women to refuse to accept a
preacher appointed by the bishop. The consent of the
religious superior is required for reasons of discipline and
to maintain his authority.10
rei-igious vs. ordinaries
Can. 1339
§ 1. Ordinarii locorum religiosis qui a proprio Su-
periore exhibeantur, facultatem concionandi, sine gravi
causa, ne denegent, concessamque ne revocent, prae-
0 Clement X, " ^uperna." ! 3. even a knowledge of ihe essential!
10 Prcacherf were •ometimes im- of the religion* life, not to mention
posed on such institutes, who lacked other defects.
oogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1339 355
sertim una simul universis domus religiosae sacer-
dotibus, firmo tamen praescripto can. 1340.
§ 2. Concionatoribus religiosis, ut facilitate rcccpta
uti liceat, opus est praetcrea sui Superioris licentia.
§ i closely resembles can. 880, which concerns the
faculty of hearing confessions. It commands the local
Ordinaries not to refuse the faculty of preaching to such
religious as are presented by their superiors, nor to with-
draw it from them without weighty reasons. They
should refrain especially from refusing or withdrawing
the faculty from all religious of one house at the same
time, provided, of course, at least the one or the other
was found fit.
Religious formerly had reasons to complain against
some Ordinaries, who either had not read the decrees of
the Tridentine Council u or interpreted them arbitrarily
and withdrew the faculty of preaching without any
reason. The S. Congregations sustained the complaints
and ordered the nuncio (in Spain) to stop such arbi-
trary proceedings, which prejudiced the Friars. There
must be for such action, says the decree in question, a
lawful cause proved by documents (in actts12). Mere
caprice or dislike cannot be styled a lawful reason, and
a legitima causa is one which concerns preaching.11
However, if a moral defect or want of knowledge render
a particular preacher undesirable, and his incapacity can
be proved, the bishop may withdraw or refuse the faculty.
But it is hardly imaginable that such defects could be
imputed to a whole community.
§ 2. Religious, in order to make lawful use of the
faculty granted by the Ordinary, must in addition obtain
11 Sess. 5. c. 3; Smb. 24, c 4. '2 S. C. EE. et RR., Jan. 13. 16:0
De Ref.; Clement X, " Superna," (Bizzarri, 543).
I 3- « S. C. EE. et RR., Dec. 14*
I Originalfrom
jr^OOglL UNIVERSITY OF WISCONSIN
356 ADMINISTRATIVE LAW
a
permission from their respective superiors. This is re-
quired in virtue of the vow of obedience. Those who
take the vow of stability, like the Benedictines, have still
another reason for asking permission, namely, because the
office of preaching may call them away from their habitual
residence.
It may not be amiss to draw attention to former regu-
lations which are now out of date. Formerly the re-
ligious, before they were allowed to preach in churches
not belonging to their own institute, had to obtain a writ-
ten permission from the bishop, and also to ask his bless-
ing. This was particularly required for the famous
Lenten preachers employed by municipalities.1* These
formalities are no longer required, nor need the faculty
of the bishop or the permission of the religious superior
be given in waiting, though the bishop would not ex-
ceed his power if he were to demand a written statement
of the religious superior as to the ability and moral
standing of the religious who wishes to preach in his
diocese.
Examination
Can. 1340
§ i. Graviter onerata eorum conscientia, loci Or-
dinarius vel Superior religiosus facultatem vel licen-
tiam concionandi cuiquam ne concedant, nisi prius
constet de eius bonis moribus et de sufficient doctrina
per examen ad normam can. 877, § 1.
§ 2. Si, concessa facultate vel licentia, cornpererint
necessarias dotes in concionatore desiderari, debent
earn revocare ; in dubio de doctrina, debent certis argu-
1674; S. C. C, Feb. 28, 1654 (Biiz., S. C. C, apud Richter, Trid., p.
/. c, p. 273). aa, no. 7 ff,
1* Cement X, " Snperna," 8 I,
'le
Y ,] , Original fro ni
UNIVERSITY OF WISCONSIN
N
CANON 1340 357
mentis dubitationem executere, novo etiam examine,
si opus fuerit.
§ 3. Ob rcvocatam concionandi facultatem vel licen-
tiam, datur recursus, sed non in suspensive
§ T. Local Ordinaries as well as religious superiors
are seriously charged to grant the faculty or permission
to preach only to such as have passed an examination
with regard to their moral standing and sufficiency of
knowledge, according to the rule laid down in can-
877. § 1.
This section of our canon must therefore be compared
to can. 877, § I, which prescribes an examination, but
excepts those whose theological knowledge is otherwise
known and tried. 1
The examination is held to establish the moral stand-
ing of the preacher and his knowledge. It was pre-
scribed by the Council of Trent 15 and elaborated in an
Instruction of the S. Congregation of Bishops and Regu-
lars ie of 1894.
As to moral standing, it is evident that lack of a good
name would hardly recommend a preacher to the people-
Hence, neither the bishop nor the religious superior are
allowed to give faculties to one who has been rejected
or disvowed by another bishop.17 This rule, of course,.
applies especially to such clerics or religious as are
tainted with Modernism.28 But mere rumor and defama-
tion should be carefully sifted from true and proved
statements.
With regard to knowledge, satred eloquence requires-
not only piety but also familiarity with the sacred armory
15 Sew. 5. c *; *«*• 24. c. 4, ITS. C. Consist., Sept. »5, 1910,
dc ret «d X, XI (A. Ap. S., H, 74O.
lajuly JI, 1894 (Coll. P. F.t B. IB Plus X, " Sacrorum Anlistt-
,878). rum," Sept. 1, 1910 OK II. 653 ff.)-
§le
( * -. ^ iL» Original fro m
UNIVERSITY OF WISCONSIN
358 ADMINISTRATIVE LAW
a
of Holy Writ, with dogmatic and moral theology and
with ecclesiastical history, as well as a delivery worthy
of the subjects treated. St. Thomas says: "In order
that a preacher may really be the light of the world, he
must possess three things ; firmness or stability, hi order
that he may not deviate from the path of truth ; clearness,
in order that he may not teach with confusion and ob-
scurity; the right intention, in order that he may seek
not his own, but God's honor and glory." l0 Therefore
he* must avoid vainglory and the motive of material gain.20
As to these points, therefore, the candidate should be ex-
amined when passing through the seminary, or when he
presents himself for the faculty to preach. If however,
as can. 877, § 1 states, his moral standing and knowledge
are sufficiently known to either the bishop or the religious
superior, the examination may be waived.
§■2. If a preacher shows that he lacks the necessary
requisites after the faculty or permission to preach has
been granted to him, the Ordinary and the superior must
withdraw it. If a doubt arises as to his knowledge, they
should endeavor to disperse it by gathering the necessary
information or proofs, and may also subject him to a new
examination. The prudent enforcement of this law re-
quires vigilance, so much recommended with regard to the
sacred office of preaching by our Holy Father, who warns
the bishops against human respect in this regard and re-
quires a strict examination as to the two requisites.21
10 Comment, in MattK, V; S. C. eris," June 15. *9<7 W, Ap. S., X,
EE. ci RK., /. c, n. 5. 3^9 ff.)«
20 Bened. XV, "Human* gen- 21 Ibid.
I 4 Original from
>0£$IL UNIVERSITY 0FWI5C0NSIN
CANON 1341 359
extradiocesan preachers
Can. 1341
§ 1. Sacerdotes extradioecesani sive saeculares sive
religiosi ad concionandum ne invitcntur, nisi prius
licentia ab Ordinario loci in quo concio habenda sit,
obtenta f ucrit ; hie a u tern, nisi corum idoneitatem ali-
unde compertara habeat, liccntiam nc concedat, nisi
prius bonum testimonium super concionatoris doc-
trina, pietate, moribus a proprio eiusdem Ordinario
habuerit; qui, graviter onerata conscicntia, secundum
veritatem respondere tenetur.
§ 2. Licentiam tempestive petere debet parochus,
si agatur de paroeciali ecclesia aliave eidem subiecta ;
rector ecclesiae, si de ecclesia parochi auctoritati non
obnoxia ; prima dignitas, de Capituli consensu, si de
ecclesia capitulari; moderator seu cappcllanus confra-
ternitatis, si de ecclesia eiusdem confraternitatis
propria.
§ 3. Si ecclesia paroecialis sit simul capitularis aut
confraternitatis propria, ille licentiam petat, qui sacras
functiones iure peragit.
-
e
The general rule is, as stated in can. 1337, that the
Ordinary in whose diocese a priest wishes to preach,
grants the faculty. This rule also binds exempt religious
who wish to preach to persons not belonging to their own
institute.
Now § 1 supposes that priests from another diocese are
invited to preach. Whether these be seculars or reli-
gious, exempt or non-exempt, does not matter, provided
only that the hearers are not exempt religious. Such
priests need the faculty of the Ordinary in whose diocese
ogle
f* ^ -. -Ar* Original fro m
UNIVERSITY OF WISCONSIN
.360 ADMINISTRATIVE LAW
they are invited to preach. If, e.g., a Jesuit from St.
Louis University wishes to preach in the cathedral of
St. Joseph, or in the Abbey Church of Conception, to
the parishioners, he requires a faculty from the Bishop
of St. Joseph, which the latter should not grant unless
he has satisfied- himself as to the preacher's knowledge,
piety, and moral standing by means of a statement from
the latter's Ordinary. Therefore, in the case mentioned,
the Archbishop of St. Louis has to furnish the Bishop
of St. Joseph with a testimonial as to the qualifications
of said preacher, and he is bound in conscience to state
the truth. This shows how serious the sacred office of
preacher is regarded by the Church.
Yet, in order to avoid red tape, and also, we suppose,
mistrust, the Code adds the wise clause: "nisi eorum
idoneitatem aliunde cotnpertatn habeot" If the Or-
dinary who has to give the faculty knows the preacher,
and is convinced that he possesses the necessary quali-
ties, he may dispense with the formality of demanding
testimonials from the other Ordinary. Of course, the
bishop who has to impart the faculty may, though he is not
bound to, abide by the statement of the pastor who has
invited the strange priest. The superiors general are
specially cautioned against sending out their subjects to
preach, unless they are certain that these subjects are duly
qualified, and against permitting their religious to preach
without the knowledge of the bishop.22 This warning
applies also to secular priests, who should not invite an out-
sider to preach without informing the bishop.
§ 2. Pastors must, therefore, ask for the permission
in good time, if the preaching is to be done in their own
church, or in one subject to them, as may be the case
2a S. C. EE. ct RR., July 31, 1B94, n. 7 (/. c).
gle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1341 361
when a pastor governs two parishes, or one with several
missions. The same obligation is encumbent on rectors
with regard to churches not subject to the pastor, and
on the first dignitary (provost or dean), who has to ask
the consent of the chapter before applying to the bishop
for a faculty ; also on chaplains or directors of con-
fraternities if the preaching is to be done in their own
church.
§ 3. If the parish church is at the same time a chapter
or confraternity church the obligation of asking for per-
mission for a strange priest to preach devolves on the one
who has the right to perform the sacred functions.
In a parish church which at the same time serves as
a cathedral or collegiate chapter church the sacred func-
tions by right belong to the pastor,23 who must ask the
consent of the chapter before he "invites a preacher,"
as required by § 2. It is the pastor, therefore, and not
the first dignitary, who must ask for permission. Does
this rule apply also to monastic chapters? The t^xt
simply says : ecclcsia capitular is, a chapter church, which
term may be applied to an abbey church, which serves
at the same time as parish church, as is insinuated in
can. 609, § 1.
With regard to confraternities, the general decree of the
S. Congregation of Rites may be consulted. It states that
confraternities lawfully erected in parish churches de-
fend on the pastor for the exercise of all, even non-
parochial, functions.2* From this it follows that the
pastor must demand permission for the preacher.
The term tempestive {in good time) has been officially
declared 2B to mean two months before the preaching
:.i Can. 413, Is. . 35 S. C. C, April jo, 1739 (Rich-
24 S. RiL C, Jan. u, 1704. ad 1 ter, Trid.. p. 22, n. 9).
(n. 2123).
>gle
Original fro rn
UNIVERSITY OF WISCONSIN
362 ADMINISTRATIVE LAW
commences. However, as communication is swifter now-
adays, the time must be left to the prudent judgment of
the petitioner, provided the matter is not delayed pur-
posely so that the bishop cannot obtain the necessary in-
formation.
WHO MAY PREACH
Can. 1342
§ 1. Concionandi facultas solis sacerdotibus vel dia-
conis Hat, non vero ceteris clericts, nisi rationabili de
causa, iudicio Ordinarii et in casibus singularibus.
§ 2. Concionari in ecclesia vetantur laici omnes, etsi
religiosi.
Only priests and deacons should be given the faculty
of preaching, and no other clerics should be allowed to
preach, except in particular cases and for a cause which
the Ordinary deems reasonable.
Laymen, even though they may be religious, are for-
bidden to preach in church.
It is well known that some Oriental lay monks played
a rather conspicuous part in the religious controversies
of the fifth century. We need not wonder, therefore,
that they were forbidden to preach, because this office
demands a canonical mission.20 There is a remarkable
decretal of Innocent III, which shows the ingenuity of
some abbesses who, besides hearing confession, also de-
livered public homilies." This appeared as a novelty* to
the pope, who stopped the practice. Laymen, too, at
times went so far as to hold secret conventicles and to
despise the word of God when preached by priests.28
Wiclif and Huss were not the first to demand permission
to preach to men and women alike.20 This prohibitive
2BSre c !Q. C. 16, <i. 1 (Leo I). 2fl C. 12, 14. X, V, 7.
27 C. 10, X, III, 38. 20 Art. 37 (Dent, 581).
>Ic
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
D
"\
CANON 1343 363
law is based on the requisite of jurisdiction, of which the
faculty of preaching is a part.
Can. 1343
§ 1. Ordinarii loconim his habent concionandi in
qualibet sui territorii ecclesia, quamvis cxempta.
§ 2. Nisi agatur de magnis civitatibus, potest
quoque Episcopus prohibere ne in aliis eiusdem loci
ecclesiis verba fiant ad fideles, quo tempore vel con-
cionem ipse habet vel coram se, ex causa publica atque
extraordinaria, convocatis fidelibus, habendam curat.
§ 1 vindicates to the local Ordinaries the right of
preaching in every church of their diocese, including the
churches of exempt religious.
§ 2 recalls the ancient quarrel between bishops and
regulars. The latter maintained that no bishop could
forbid them to preach in their own churches and places
where the bishop could not himself preach, but engage
a preacher to deliver a sermon in his presence. The S.
Congregation decided ao substantially as our text reads,
namely, that with the exception of large cities, to which
the law does not apply, the bishop may forbid sermons
to be delivered to the faithful in other churches of a
place in which he or another by his command is preach-
ing at the same time. However, this prohibition binds
only when the preaching is done for a special and public
cause and the faithful have been properly invited to
attend. Such a " special event," as it is called in one
decision, would be a Catholic congress or solemn gather-
ing to which the clergy and the faithful have been in-
vited. Large cities are excepted. The size of a city
so S. C. C, April a6, 1607; 33, n. 17); Btned. XIV, De Synod.
March 10, 1646 (Richter, Trid., p. Dioec, IX, 17, ;.
jle
Y ,1,., Original fro m
UNIVERSITY OF WISCONSIN
364 ADMINISTRATIVE LAW
must here be gauged, not hy the total number of its in-
habitants, but by the number of Catholics and Catholic
congregations it contains. New York, Chicago, and St.
Louis are undoubtedly large cities in the sense of this
canon.
THE PASTORS DUTY TO PREACH
T
Can. 1344
."
§ 1. Diebus dominicis ceterisque per annum f est is
de praecepto proprium cuiusque parochi ofncium est,
consueta horn ilia, praesertim intra Missam in qua
maior soleat esse populi frequentia, verbum Dei populo
nuntiare.
§ 2. Parochus huic obligationi nequit per alium
habitualiter satisfacere, nisi ob iustaxn causam ab Or-
dinario probatam.
§ 3. Potest Ordinarius permittere ut sollemnioribus
quibusdam festis aut etiam, ex iusta causa, aliquibus
diebus dominicis concio omittatur.
■
Pastors are in duty bound to preach the word of God
in the customary manner on all Sundays and holy days
of obligation, especially during the Mass that is most
largely attended.
This obligation is personal and cannot be habitually
committed to another, except for reasons recognized as
sufficient by the Ordinary.
The Ordinary may allow the sermon to be omitted on
solemn feast-days, and, for good reasons, also on the
one or other Sunday.
That preaching is a personal duty of the pastor is evi-
dent from the fact that he is generally appointed for his
personal qualities, and as pastor is bound by divine
law to break bread to the hungry and to feed his flock
§le
/-.,., j„ Original from
UNIVERSITY OF WISCONSIN
CANON 1344 36S
with spiritual food.81 Therefore the custom of not
preaching must be styled unreasonable, and has been so
styled by the Roman Pontiffs." Nor can the pastor be
dispensed from this sacred obligation during Lent or
Advent, when other preachers take the pulpit, or other
churches in the same city have such preachers.88
On the other hand every obligation, no matter how
personal, has its equity, which mitigates the rigor of the
law. Hence § 2 sets certain bounds to this otherwise
strict duty of preaching. The law merely wishes to pre-
vent habitual shirking of the obligation, even though the
motive be natural shyness, timidity, or lack of confidence.
If the bishop sanctions the reason for which the pastor
shifts the burden to others, the habit or custom may be-
come lawful. Where there is a natural impediment, for
instance, throat trouble, failing memory, or other ob-
stacles, the Ordinary may certainly permit a pastor to let
others preach for him habitually. Where it is customary
for pastors and curates or assistants to take turns at
preaching, and the custom has been ratified by the bishop,
no breach of the law occurs.
The last section gives the Ordinary the power of dis-
pensing" pastors from the duty of preaching on the
more solemn feasts of the year, and even on the one or
other Sunday. If the bishop pontificates in a parish
church, e. g., he may tell the pastor not to preach. A
just reason would be the necessity of hearing many con-
fessions, or the reading of a lengthy financial statement
of the parish. The text docs not require an express per-
D
81 Trid., Sess. 5, c. a; Smb. aa, 83 S. C. C, Aug. 30, 1817 .'■
c. 8, D* Sac. MUsat; Sew. aj, c. 1; filuries (A. S. S., IX 465 ff.).
Sets. 24, c. 4. Dt Ref. 3* This is the term used by S. C
82 Innoc. XIII, *' Apostoliei min- C. April 1, 1876 {A. S. S., IX, p.
uteri," May 33, 1723; Bened. XIII, 468).
"In sufremo," SepU aj, 17*4! c*r*
Bened. XIV, Initit., X, n. 3.
jle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
366 ADMINISTRATIVE LAW
mission, nor that it be given separately for each occasion,
and consequently the bishop may do so in the synod, or
through a circular letter, or by a general statement, either
written or oral ; provided always that no abuses creep in
and no contrary custom develops.
instruction in christian doctrine in other than
parish churches
Can. 1345
Optandum ut in Missis quae, Hdelibus adstantibus,
dicbus festis de praecepto in omnibus ecclesiis vel
oratoriis publicis celebrantur, brevis Evangelii aut
alicuius partis doctrinae christianae explanatio fiat;
quod si loci Ordinarius id praeceperit, opportunis datis
instructionibus, hac lege tenentur non solum sacer-
dotes e clero saeculari, sed religiosi, exempt! quoque,
in suis ipsorum ecclesiis.
What our text prescribes in a mildly optative form
was laid own by Benedict XIV, not as a general rule,
but as a guiding principle for Ordinaries.85 The Church
desires that in all churches and public oratories, even
though they are not parish churches, the Gospel or some
part of Christian Doctrine should be expounded during
the Masses that are attended by the faithful on holy days
of obligation. Our text continues: If the Ordinary is-
sues instructions to that effect, all priests, secular as well
as religious, including those who are exempt, are bound
to obey this law in their respective churches.
The Roman Pontiff will side with Ordinaries even
against exempt religious.88
85" Etsi mmime," Feb. 7, 1742, | to Ibid.
15.
►ogle
£ * -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 1346 367
lenten and advent sermons
Can. 1346
V
§ 1. Curcnt loco rum Ordinarii ut tempore quad-
ragesimae, itemque, si id expedire visum fuerit, tem-
pore Adventus, in ccclesiis cathedralibus et paroeciali-
bus sacrae conciones frequentius ad fideles habeantur.
§ a. Canonici aliique de Capitulo huic concioni, si
in propria ecclesia continuo post chorum habeatur, in-
teresse tenentur, nisi iusto impedimento detineantur;
et illos Ordinarius, poenis quoque adhibitis, ad id adi-
gere potest.
§ 1. The Ordinaries should see to it that during Lent,
and if expedient also during Advent, sermons are de-
livered more frequently in cathedral and parish churches.
Pius X ordained that the young who are preparing
for first Communion, should be given daily instructions
during Lent." Our text speaks of " sermons to the faith-
ful," but leaves the details (arrangement, frequency, etc.)
to the judgment of the Ordinaries.
§ 2. Canons and other members of a Chapter are
obliged to attend these sermons, if held immediately after
choir service, unless they are lawfully prevented; and
the Ordinary may compel them to attend under penalties.
All the canons, except of course the Canonicus thcolo-
gus and the Pcrnitcntiarius, and those employed in other
offices with the permission and sanction of the bishop,
must be present ; also the prebendaries and beneficiaries
(mansionarii) . They must wear the choir dress (habitus
choralis) and occupy their seats, as usual This obliga-
tion binds even in case the sermon is held in another
37 " Acrrba m-mis." April 35, 1905, n. Ill,
*Ic
v ,1 , Original fro m
UNIVERSITY OF WISCONSIN
■
368 ADMINISTRATIVE LAW
church which (for instance, on account of repairs) tem-
porarily serves as cathedral or collegiate church. The
collegiate canons, too, are included.1
The penalties depend on the judgment of the Or-
dinary and may consist of fines.89
subjects of sermons
Can. 1347
§ 1. In sacris concionibus cxponenda in primis sunt
quae fideles credere et facere ad salutem oportet.
§ 3. Divini verbi praccones abatineant profania aut
abstrusis argumentis comrnunem audientiurn captum
excedentibus ; et evangelicum ministerium non in per-
suasibilibus humanae sapientiae verbis, non in pro-
fano inanis et ambitiosae eloquentiae apparatu et leno-
cinio, sed in oatensione spiritus et virtutis exerceant,
non semetipsos, sed Christum crucifixum pracdicantes.
§ 3. St, quod absit, concionator errores aut scandala
dissemmet, servetur praescriptum can. 2317; si hae-
reses, in eum praeterea, ad normam iuris, agatur.
§ 1. Sermons should be devoted above all to what is
necessary for the faithful to believe and do for salvation.
§ 2. Therefore the preachers shall abstain from pro-
fane and abstruse arguments which exceed the capacity
of their hearers, and perform their evangelical ministry
(as the Apostle warns40) not in persuasive words of hu-
man wisdom, or for the display of vain and ambitious
eloquence, but in showing of the Spirit and power;
preaching not themselves, but Christ crucified.
sb S. RiL C.t March 22, 1653; a» Ibid., nn, 1217, 2258.
Oct 1, 1661; March II, 1703; Dec, 40 I Cor, II, 4.
10, 1718, ad 4 (nil. 944, 1217, 2108,
MS),
jle
k ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1348 369
a
They should not play the role of philanthropists, limit-
ing their arguments to this life and disregarding the next.
They may speak of the beauty and the blessings arising
from religion, but should also mention man's duties to
God, the eternal judge."
§ 3. If (what God may avert!) a preacher should
disseminate errors and scandals, he should be deprived of
the faculty of preaching and removed from the teaching
office, and may also be subjected to such penalties as
the Ordinary may deem necessary to repair the scan-
dal.*3 Should he preach heresies, the Ordinary must
proceed against him according to the law. The first step
in the latter case would be to forbid him to preach, fol-
lowed by a canonical summons, or, where the Holy Office
still exercises its jurisdiction, denunciation to the same.
But the Council of Trent warns bishops to be careful
lest innocent priests be injured by calumny.43
duty of the people
Can. 1348
Monendi et adhortandi diligenter fideles sunt ut
sacris concionibus frequenter intersint.
The faithful should be diligently admonished and ex-
horted to hear sermons frequently. They may also be
told that, even when they have no opportunity to hear
Mass on Sundays and holy days of obligation, the duty
of keeping holy these days by hearing the word of God
does not cease. But the exhortation or admonition must
■
riot be so worded as if it were an ecclesiastical precept
obliging under sin to attend sermons.'
44
41 S. C. EE. el RR., July SI, 43 Smb. 5, c. 2, De Ref.
1894, n. 6 (Coll. P. F., n. 1676). *« S. C P. F., Jan. 4, 1798
« Can. 23-17. (Coll., n. 64a).
G| Original from
OOglt UNIVERSITY 0FWI5C0NSIN
■
CHAPTER III
missions
Can. 1349
§ 1. Ordinarii advigilent ut, saltern decimo quoque
anno, sacram, quam vocant, missionem, ad gregem
sibi commissum habendam parochi curent
§ a. Parochus, etiam religiosus, in his missionibus
instituendis mandatis Ordinarii loci stare debet.
§ 1. Ordinaries shall see to it that the pastors arrange
a holy mission — as it is called — for their flocks at least
every ten years.
§ 2. Pastors, including religious, must abide by the
regulations of the local Ordinaries in this matter.
Thus, if the local Ordinary orders a mission to be held
in a parish church which is in charge of exempt religious
and governed by them, they have no right to hinder it or
vex the missionary sent by the bishop.1
missions to non-catholics
Can. 1350
§ 1. Ordinarii locorum et parochi acatholicos, in suis
dioecesibus et paroeciis degentes, commendatos sibi in
Domino habeant.
§ 2. In aliis territoriis universa missionum cura
■I
apud acatholicos Sedi Apostolicae unice reservatur.
-
l S. C. EE. et K.R., July 33, 1694 (Bizzarri, * c, p. aSi).
370
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■"■
'■-.
CANON 1351 371
§ 1. The non-Catholics living in a diocese or parish
are recommended to the benevolent attention of the
bishop and the pastors, who should ponder effective
means and ways of bringing them back to the one true
fold of Christ. This may be accomplished by spreading
apologetic tracts,2 etc. Of course, the social and intel-
lectual conditions of the non-Catholic population must
be duly taken into account. Prayers for their conversion
should be offered.8
§ 2. In all other territories the care of non-Catholics
is reserved exclusively to the Holy See. Therefore all
foreign missions, the superiors general of missionary so-
cieties and their subjects, are under the special supervision
of the S. C. de Propaganda Fide, without the consent
of which no new mission may be founded or missionary
work started. This law binds all religious, exempt and
non-exempt, of whatever denomination, under threat of
ecclesiastical penalties.4
Cak. 1351
Ad amplcxandam fidem catholicam nemo invitus
cogatur.
No one should be compelled to embrace the Catholic
faith against his will.
This golden rule of the great bishop of Hippo 5 was
followed in the treatment of the Donatists until they
caused troubles which led the civil rulers to interfere.
If it has been lost sight of in course of time, this was
2 S. C. P. F., Sept. 8, 1865 {Coll., Ur literature mty be recommended
n. 1346). The Faith of Our for this purpose.
Fathers, by Cardinal Gibbons; Fr. 8 S. C. P. F., Instructio of 1879
Conway's Question Box, the pam- (ibid., a. 1507)*
phleis of the Catholic Truth So- * S. C. P. F., Dec. 5. 1640: Jan.
cictici, "The Antidote," and aimi- 11, (656 (Coll., nn. 101, 135).
5 Cfr. cc. 3. 5» Dist *5-
.'le
k ,1,., Original from
UNIVERSITY OF WISCONSIN
372 ADMINISTRATIVE LAW
due to the mixture of ecclesiastical with political affairs.
But it remains as true as it was in St. Augustine's day
that faith is a free gift of God, though, of course, men
may be instrumental in procuring it. The early Chris-
tians were allowed to buy and retain pagan slaves who
voluntarily fled to them in order to be more leniently
treated; they could use exhortations and persuasive
words, but were not allowed to exercise any compulsion.8
• S. 0., Sept u, 1776 {Col. P. F., n. gift).
.'Ie
k ,|,, Original from
UNIVERSITY OF WISCONSIN
TITLE XXI
SEMINARIES
From the second century onward, i. e., as soon as the
Church was free to spread, schools were instituted which,
though called catechetical, offered more than a catecheti-
cal training to such as wished to enter the clerical state
or to hold some other responsible position. The schools
of Alexandria and Antioch resembled theological acad-
emies where philosophy was not neglected, though it
would be hazardous to identify them with seminaries.1
More closely resembling our modern seminaries were
the cloistral and cathedral schools of the Middle Ages,
where clerics and laymen, especially of the nobility, re-
ceived their education. These nurseries of learning and
piety, fashioned after the domestic school of St. Augus-
tine, may be called forerunners of the modern colleges
and seminaries established upon the initiative of the
Council of Trent.2 The twenty-third session of that
council, held in July, 1563, contains a long chapter on
this important subject, in which the colleges for the train-
ing of clerics are for the first time called seminaries.
The council ordained that youths of at least twelve years,
especially from among the poorer classes should be re-
ceived into these schools for the necessary scientific,
moral, and practical training qualifying them for the
priesthood. A peculiar feature was that the pupils should
receive the tonsure when they entered the seminary. The
1 Cfr. Cath. Eneyel, XIII, 694 2 Sew. 33, c. ig, D* Ref.
B„ s. v. " Seminary."
373
*Ie
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
374 ADMINISTRATIVE LAW
St
council prescribed two school boards, to be chosen by the
bishop, one for the spiritual, the other for the temporal
administration. Such a seminary was to be established in
every diocese large enough to maintain one. The smaller
dioceses were allowed to combine. Thus the terms dio-
cesan, interdiocesan, provincial, and pontifical seminaries
were introduced.
A seminary may be broadly denned as a school destined
either remotely or proximately for the preparation of
candidates for the sacred ministry, especially the priest-
hood.8
A diocesan seminary is one under the control of the
local Ordinary, an interdiocesan is one under the control,
generally in solid ion, of all the bishops who send their
students there, although interdiocesan may only mean
that the control is entrusted to the local Ordinary, whilst
other bishops are merely entitled to send their candidates ;
a provincial seminary is one under all the bishops of
an ecclesiastical province with the metropolitan as head ;
a pontifical seminary is one under the immediate control
and supervision of the Holy See, who generally exercises
this right by means of the papal delegate.
RIGHT OF THE CHURCH TO EDUCATE THE CLERGY
p
Can. 1352
Ecclesiae est ius proprium et exclusivum eos insti-
tuendi qui ecclesiasticis ministeriis sese devovere cu-
piunt.
a A promiscuous college with bust- One consequence is that the xemi-
ness, scientific, and classical courses, naristicutn cannot be collected
even though erected by the bishop for such colleges, but at most a
and conducted by the diocesan subsidium caritatis. if no other col-
clergy, cannot be styled a seminary, lege of the same nature exists in
as is apparent from the Council of the diocese.
Trent as well as from our Code.
§le
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 1352 375
a
It might seem superfluous to make a law saying that
"the Church enjoys the native and exclusive right to train
those who itrish to devote themselves to the sacred win-
istry." Yet the legislator, taught by experience, has
thought it well to emphasize this right. He calls it a ius
proprium, or inherent right. This is evident from the
office of the Church as the divinely constituted teacher of
faith and morals. This office demands that those who
shall be the bearers of light be imbued with those mental
and moral qualities which render the exercise of the teach-
ing office effective and conformable to the principles of
faith and virtue. It is a native right of the Church to
select those who are in a more particular manner the
elect of the Lord, from among the multitude of men and
place them in the shadow of the sanctuary, where they are
protected against dangerous maxims and practices. In
doing this the Church does not violate the rights of the
State or of any individual. The State has no right to
dictate any one's vocation. If God, who is the author of
civil authority, calls one to the priesthood or religious
state, no human power can hold him back. Individuals
are free to choose the clerical state because in doing so
they obey their Maker. There is now no longer any
danger, as there was in the fifth and sixth centuries, that a
wholesale flight from public office and municipal obliga-
tions would endanger the existence of an empire. Those
were abnormal times suffering from a corrupt system of
administration and taxation.
The text says further that the right of training clerics
belongs exclusively to the Church. The Gallican, Febro-
nian, and Josephinist schools claimed the right of prescrib-
ing the programme of studies for the clergy of the State*
* Syllabus Pit IX, n. 46 (Dcnzinger, /. ft, n. i594>*. Hus IX, " Nuntjuam
fore," Dec, 1856.
§le
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
N
376 ADMINISTRATIVE LAW
This claim is based on a false notion of ecclesiastical au-
thority. If the Church, as an autonomous and independ-
ent society, is entitled to attain her purpose by the choice
of appropriate means, she certainly lias the right to train
those who are to be the living and successive bearers of
her divine mission, — the sacred ministers. From this it
naturally follows that the right of choosing the means
best adapted for the training of the clergy belongs to the
Church exclusively. Her sphere of interests differs essen-
tially from that of the State, though there is no contradic-
tion between the two. The State may monopolize salt
and tobacco, but for it to monopolize education, and cleri-
cal education in particular, would be usurpation.0 There
is no danger that the clerical training might prove detri-
mental to the State. For the very fact that loyalty and
morality are the principal objects of that training guaran-
tees the foundations of civil society.
THE DUTY OF PASTORS WITH REGARD TO CLERICAL
VOCATIONS
v
Can. 1353
Dent operam sacerdotes, praesertim parochi, ut
pueros. qui indicia praebeant ecclesiasticae vocationis,
a
peculiaribus curis, a saeculi contagiis arceant, ad pi-
etatem informent, primis litterarum studiis imbuant
divinaeque in eis vocationis germen foveant.
Priests, and especially pastors, should interest them-
selves in such boys as show signs of an ecclesiastical voca-
tion, keep them away, as much as possible, from worldly
contagion, instruct them in piety and the elements of sci-
<
tt Leo XIII. " lampridem," Jan. aa. 1887 (to Prussia and Bavaria
6, 1886; "Officio sanctissimo," Dec. after the " Kulturkampf *').
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
Q
CANON 1354 377
cnce, and foster in them the germ of their vocation. For
it is evident that by such means an ordinary or general
vocation may develop into a special or extraordinary one.
Suitable surroundings and a favorable atmosphere develop
the seeds of a supernatural calling.8
diocesan seminaries
Can. 1354
§ z. Unaquaeque dioecesis in loco convenient! ab
Episcopo electo Seminarium seu collegium habeat in
quo, pro modo facultatum et dioecesis amplitudine,
certus adolescentium numerus ad statum clericalern
instituatur.
§ a. Curandum ut in maioribus praesertim dioecesi-
bus bina constituantur Seminaria: minus, scilicet, pro
pueris litterarum scientia imbuendis, maius pro alum-
ni s philosophiae ac theologiae vacantibus.
§ 3. Si constitui Seminarium dioccesanum nequeat,
aut in constituto Seminario conveniens institutio,
praesertim in philosophicis ac theologicis disciplinis,
desideretur, Episcopus alumnos in alienum Seminar-
ium mittat, nisi Seminarium interdioecesanum vel
regionalc, auctoritate apcstolica, constitutum fuerit
§ 1. Ever)' diocese should have a seminary or college in
a convenient place selected by the bishop. There, accord-
ing to the revenues and size of the diocese, a certain
number of young men should be trained for the clerical
state.
§ 2. In the larger dioceses there should be established
two seminaries: one as a college or petit seminaire, the
other for the students of philosophy and theology.
flCavagnis, Initit%tionei Juris Publ. Eccl.. 1883. I. IV, n. 76; Vol.
Ill, P- 45.
.'Ie
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
378 ADMINISTRATIVE LAW
§ 3. If a diocesan seminary cannot be erected, or the
philosophical and theological courses cannot be properly
given in one already existing, the bishop shall send his
students to another seminary, unless there is an interdio-
cesan or provincial seminary erected by authority of the
Apostolic See.
§ i prescribes that a preparatory college or petit semi-
naire be established in every diocese. But it wisely sets a
limit to this obligation, making it dependent upon the
revenues and size of the diocese. Where there is a col-
lege conducted by religious, the bishop may make use of it
for his students.
§ 2 prescribes two seminaries, a college and a clerical
seminary, for the larger dioceses. The size of a diocese
is not determined by its area, but by the number of the
faithful, for in extent some apostolic vicariates are large
enough to comprise many Italian dioceses or even arch-
dioceses, yet they were told to establish central or pro-
vincial seminaries.7 The revenues, also, are a determin-
ing factor, as the same Instruction intimates. Besides it
is evident that an efficient staff of teachers and an ade-
quate number of students cannot be expected in a small
diocese, not to speak of the expenses necessary for the
building and maintenance of the required edifices and the
cost of administration.
The two seminaries should, if possible, be separated
and conducted as different establishments. This is de-
sired mainly by reason of the different discipline required
for younger and for more advanced students.8
§ 3 permits bishops to send their students to another
seminary, i. e., one existing in a different diocese, but only
in case there is no interdiocesan or provincial seminary
■"■
T S. C. P. F., Oct. 18. 1883 8 S. C. Consiit. July 16, igu,
(Co//., n. 1606). n. 1 {A. S. S., IV, 49a O.
§le
Original from
UNIVERSITY OF WISCONSIN
CANON 1354 379
erected by the Holy See. The latter may intervene either
directly or indirectly in the establishment of an interdio-
cesan or provincial seminary. Directly by a formal de-
cree issued by the S. Congregation of Seminaries and Uni-
versities,9 declaring an institution to be an interdiocesan
or provincial seminary ; indirectly by the S. C. Cone.
approving the acts of a provincial synod erecting or ap-
proving such an institution. The latter mode of approval
is intended in certain Instructions of the S. Congregation
of the Propaganda.10 There may be a doubt whether the
* atictoritas apostolica" is expressly required for both
provincial and interdiocesan seminaries, — in other words
whether our text intends to draw a real distinciion be-
tweet) an interdiocesan and a provincial seminary.
Though there is a distinction between the two, this dis-
tinction has no practical value in our case, as can. 1357,
§ 4 simply rules that the government and administration
of " an interdiocesan or provincial seminary " are to be
conducted according to the rules laid down by the Holy
See. This undoubtedly means that interdiocesan and
provincial seminaries must have their statutes, and thereby
also their existence, approved by the S. Cong, of Sem-
inaries and Universities,
Where such an interdiocesan or provincial seminary
exists, therefore, a bishop who has no seminary of his
own, in which philosophy and theology are taught, must
send his students to that provincial seminary, but only
for the strictly clerical, not for the classical, studies.
flCfr. can. 256.
10 Oct. 18, 1883, IV; Aug. *B, 1893 (.ColL, nn. 1606, 1848).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
? - O
380 ADMINISTRATIVE LAW
the seminaristicum
Can. 1355
Pro constitutions Seminarii et alumnorum susten-
tationc, si proprii reditus dehciant, Episcopus potest:
i.° Parochos aliosve ecclesiarum ctiam exemptarum
rectores iubere ut static- temporibus in ecclesia ad hunc
ilncm stipcm cxquirant ;
2. Tributum seu taxam in sua dioecesi imperare;
3.° Si haec non sufnciant, attribuere Seminario ali-
qua bcneficia simplicia.
If there are no endowments for the support of a sem-
inary and its students, the bishop may
i.° Command the pastors and other rectors of churches,
even though they be exempt religious, to take up collec-
tions for that purpose at stated times ;
2.0 Impose a seminary tax in the diocese ;
3.0 If these resources do not prove sufficient, he may
attach some simple benefices to the seminary.
The first means is modern. It imposes the obligation
of taking up a collection, even in churches which are not
parish churches, and in such as belong to exempt re-
ligious.
As to the incorporation of benefices, it should be ob-
served that only simple benefices are intended, 1. e., such
as require no permanent residence in the place of bene-
fice,11 and the duties of which may be performed by a
substitute or vicar. Thus a simplex canonicatus or a
chaplaincy may be united with a seminary ; but a paro-
chial benefice may not, without apostolic indult.
Incorporation is either pleno iure or semiplcno iure,
either as to the spiritual and temporal, or as to the tem-
liCfr. can. I4U.
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1356 381
a
poral benefits only ; the latter element is especially in-
tended here, since incorporation is permited for the pur-
pose of support. But the union cannot be made without
the advice of the seminary board; that of the chapter or
consultors is not sufficient."
An incorporation of benefices made before the sem-
inary is in existence, is invalid.1*
Simple benefices of any kind may be united with a sem-
inary, even if the appointment to these falls within so-
called papal months, t. e., those in which the right of ap-
pointment belongs to the Holy See. But in this case the
incorporation must be made before the vacancy occurs."
o<
a
Can. 1356
in
§ 1. Tributo pro Seminario obnoxia sunt, qua vis
appelatione remota, reprobata qualibet contraria con-
suetudine et abrogato quolibct contrario privilegio,
mensa episcopalis, omnia beneficia etiam regularia aut
iurispatronatus, paroeciae aut quasi-paroeciae, quamvis
alios rcditus, praeter fidelium oblationes, non habcant,
domus hospitalis auctoritate ecclesiastica erecta, so-
dalitates canonice erectae et fabricae ecclesiarum, si
suos reditus habeant, quaelibet religiosa domus, etsi
exempta, nisi solis eleernosynis vivat aut in ea col-
legium discentium vel docentium ad commune Eccle-
siac bonum promovendum actu habeatur.
§ 2. Hoc tributum debet esse generale eiusdemque
proportionis pro omnibus, maius vel minus secundum
Seminarii necessitatem, sed quinas quotannis centesi-
iz S. C. C, Feb. 14, 1594; March 3, 1597 (Ricliter, Trid., I. c, a.
— — w. v. -"p - »..*- '^i -J7TI •*• -tin • — > - • " 1
3, 1594 (Richter, Trid., p. 21a. n, 10 f.).
87); Bencd. XIV, De Syn. Dioec, l* S. C. C, Aug. 1586; Aug. 3»»
IX, 7. 1600 (Richter, /. c, n. 13).
13 S. C. C( June 8, 1595'. March
jle
Original fro ni
UNIVERSITY OF WISCONSIN
382
ADMINISTRATIVE LAW
mas partes (5%) rcditus vectigalis non excedens, mi-
nuendum prout reditus Seminarii augentur.
§ 3. Reditus tributo obnoxius is est qui, deductis
oneribus et necessariis cxpcnsis, supcrsit in anno ; nee
in eo reditu computari debent distributiones quoti-
dianae, velt si omncs beneficii fructus distributionibus
constent, tertia earundem pars ; nee fidelium oblationes,
nee, si omncs paroeciae reditus coalescant fidelium
oblationibus, tertia earundem pars.
Can. 1356 more precisely determines those persons,
either physical or corporate, who are obliged to pay the
seminary tax (ta.va seminaristica).
It starts with three clauses, the first of which is " quavis
appellatione remota. The principal effect of this clause is
that no appeal is admitted in devolutive though a recourse
or restitutio in integrum is not prohibited. Another effect
of this clause is that, even if the seminary tax would be
only a side issue in another cause, it would affect the en-
tire cause, at least as long as the secondary one remained
unsettled.
The second clause is: " reprobata qualibet contraria
con&uetudinc." This clause abrogates any custom which
already exists, or has existed, i. e.t whether present or past.
As to this there is no controversy, but the question has
been raised whether this clause intends to annul future
customs.15 This seems to us to be settled by can. 27,
§ 1, which says that every custom explicitly reprobated in
the Code is unreasonable. Therefore even a future cus-
tom is made impossible with regard to the seminary tax,
because it would lack the consent of the legislator.
The last clause reads : " abrogato quolibet contrario
J» Cfr. Barbosa, 7>oir*t«* Vari*, Clausulac, nn. IX, 87 (cd Lugd.
1660, p. 360 f., 450 f->.
oogle
Original from
UNIVERSITY OF Vi-'ISCONSI
CANON 1356
383
a
N
-
privilegio." Each and every privilege, therefore, whether
obtained directly or indirectly (by way of communica-
tion), must be considered as abolished and void of effect
because contraries cannot be comprised under the same
subject.1* Hence if exempt religious have obtained a
privilege of not paying the seminaristkum, this privilege
is now void.
The following are obliged to contribute to the sem-
inary:
i.° The mensa episcopalis, which comprises the whole
income or salary of the bishop and is administered by
him.17 Hither belong the cathedraticum and that part of
the pew-rent of the cathedral church that is reserved for
salary. In countries where there are endowments these
too are included, with due regard, however, to § 3.
2° All benefices, including those of regulars and such
as are of lay or ecclesiastical advowson.18
3.0 All parishes and quasi- parishes, even though they
have no other income than the offerings of the faithful.
Parishes not yet organized as such are probably exempt
from paying the scminaristicum because rights and duties
are correlative terms.
4.0 Hospitals erected by ecclesiastical authority and
provided with funds of their own, for instance, by endow-
ment. Hospitals founded and governed by the civil au-
thority or by private persons (Sisters, etc.), cannot be
taxed. The term ecclesiastical authority comprises the
Ordinary, the superior major of exempt religious, and
the Holy See. Hospitals which subsist on the generosity
of voluntary contributors or alms, are not taxable.19
10 Barbosa, i. c, p. 38, d. 4.
17 Idem, De Officio et Pottstat*
Efisc., P. Ill, allcg. 95, n. 67.
IBS. C. C, Dec. 17, 1836, ad II
(Richter, Trid., p. 213, n. 37).
>lc
10 S. C C, July, 1588 (Richter,
Trid., p. 313. n. 12); toca pia
non c bonis ecclesiasticis facta non
tencre."
Original fro ni
UNIVERSITY OF WISCONSI
3«4
ADMINISTRATIVE LAW
5.° Canonically erected confraternities and ecclesiasti-
cal fabricac, provided they have their own income. The
term fabrica comprises the administrators of a church
building, or the counselors. Thus, for instance, the
Reverenda Fabrica S. Petri, means the whole administra-
tion of St. Peter's Basilica. The underlying idea is that
such a building is (by fictio'iuris) an artificial person, or,
rather, an ecclesiastical institution. This also applies to
confraternities which possess corporate property of their
own, either movable or immovable, such as the guilds or
confraternities in some parts of Europe. In this country,
as far as wc are aware, this law does not apply to con-
fraternities or sodalities, because the monthly fees of the
members do not constitute reditus or income in the proper
sense.
6.° Every religious house, even though exempt. This
includes every religious community, whether formata or
not, whether belonging to men or to women. Exceptions
to this rule are: (a) the houses of mendicant orders
and others who live from alms,20 but not the parishes
which are entrusted to the care of mendicants; (b) all
religious who actually maintain a college of pupils or pro-
fessors which promotes the common welfare of the
church. The latter clause appears ambiguous, but its
meaning can be determined from certain official decisions.
Thus it has been declared that a monaster}' which supports
a college for monks and professors, or maintains a sem-
inary of its own, is not bound to pay the seminary tax.21
This was the case in former times at the universities of
10 Among these are the orlers
of St. Dominic, St. Francis (all
three branches), the Hermits of
St. A iir.'d'ir. the Carmelitei, the
Scrvites, the Minimi, the Society of
Jesus; Barbosa, De Off. et PoUst.
Epixc, P. Ill, aileg. 77, on. 14 f.
(Vol. II. p. 315).
21 S. C C. Sept. 9, 1594 (Rich-
ter, /. c, p. 313, n. 18).
'le
Original from
UMlVERSlf Y OF Vi-'ISCONSI
CANON 1356 385
a
Paris arid Bologna, where the relgious orders maintained
their own colleges.
A doubt may perhaps arise as to colleges conducted by
religious in their own name, which are not seminaries in
the technical sense. However, our text does not say
" seminary," but collegium, and the only condition is that
such a collegium promotes the common welfare of the
Church. This, we believe, is verified in any Catholic
college worthy of the name, which is open to all Catholic
youths without discrimination, for such institutions greatly
promote the welfare of the Church at large. A different
answer must be given if the college is intended only for
members of the respective religious family, a so-called
scholasticate, for such institutions are primarily destined
for the benefit of the respective order or congregation, not
of the Church at large. The fact that a scholasticate was
educating boys without means would not free it from the
seminary tax.23 Nor would the circumstance that the
school or scholasticate was instituted in the monastery
with some grammar school for its members." Lastly, al-
though a monastery may have to contribute to a seminary
of its own order or congregation, it is not exempt from
the diocesan seminary tax."
§ 2 rules that the seminary tax must be general, equal,
and proportionate. It must be general, that is to say, no
exception may be made in favor of anyone who is obliged
to contribute. It must be equal, i. e., all arc to be taxed
to the same extent, without subjective or personal con-
sideration, according to the objective standard laid down
in § 3. The tax must be proportionate to the needs of
the seminary, I <?., it must be diminished if the revenues of
22S. C. C, Jan. 3. 1S94 <&*}., 2* S. C C, Sept. 7, 1714 ftttt»
n. jo). n- ai).
2a S. C. C. April 24. 1723 (Rich-
icr, I. c, n. 19).
ogle
f~* ^ .. %\s* Original from
UNIVERSITY OF WISCONSIN
3»6
ADMINISTRATIVE LAW
■
the seminary increase, and the maximum rate cannot ex-
ceed 5% of the net income or capital taxed.
§ 3. The seminary tax can be levied only on the income
which is left after all obligations and expenditures have
been deducted. This is a general principle, which must
be applied to the various contributors mentioned in § 1.
(a) As to the mensa episcopalis or episcopal income, it
must be observed that former decisions cannot be fully
adapted to modern exigencies because they apply to real
benefices with immovable property. Still these decisions
afford at least a clue as to what may be included in de-
ducting obligations and expenditures. An obligation may
burden the mensa in the form of an ecclesiastical pension
which the bishop has to pay, for instance, to a disabled
priest. Yet a decision says that the bishop would be al-
lowed to charge it to the pensioner.25 However, this is
a rather complicated case. The term expenditures cov-
ers the total expense of collecting the income, the wages
of hired hands and all other employees occupied in har-
vesting the produce of estates.20 Applying these rules
to modern notions we may say, salvo meliore iudicio, that
the meyxsa episcopalis is taxable on what is left after the
obligations and expenditures accruing from pastoral vis-
its and professional occupations have been duly deducted.
Household expenses are not to be deducted.27 For the
rest it is left to the bishop's own conscience to tax him-
self in a fair amount. The idea of the law is that no one
should exempt himself.
(b) The same rules, according to the decision quoted,
apply to the holders of ecclesiastical benefices. Mass stip-
ends are not taxable.
25 S. C. EE. et RR., Eueu-
'■•■::■:. Nfarcl 1, 1805 ( Bizxarrt, /. c,
P- 4°5>-
2« S. C. C, 1673 (Biizarri, ibid.) ;
Dm. 17, 1836, ad VII, XI (Richter,
/. c, p. 214, n. 37).
»7 S. C. EE. et RR., I. e.
oogl
e
Original from
UNIVERSITY OF WISCONSIN
CANON 1356
387
a
N
(c) Hospitals, confraternities, and fabricae as well as
religious houses are subject to the same rule. Hence, for
instance, if the obligation of maintaining a number of pa-
tients or wards free of charge, or keeping sick or sickly
clergymen free of charge, burden a hospital, this expense
may be deducted, plus the interest to be paid on capital
or mortgage. Thus also confraternities would be justi-
fied in deducting the expenses of Masses imposed by
legacies and of alms imposed by their statutes.28 Relig-
ious houses may subtract from the taxable sum the amount
which they have to spend on their own seminaries or col-
leges.29 In fact a religious house burdened with heavy
debts and bound to meet its obligations, could claim either
exemption or mitigation, for the terms are general in our
text. This of course only in case they have no incorpor-
ated benefice or parishes.
(d) Not taxable are the daily distributions which the
beneficiaries of cathedral and collegiate churches receive
for actual and active assistance in choir, if they have
an income besides these distributions. But if their in-
come consists entirely of daily distributions, the third part
of these distributions is liable to the tax.80
(e) Not taxable are the offerings of the faithful if the
whole income of a parish consists of such offerings. This
is the case in most of our parishes, since by offerings are
understood not merely the plate collections, but also pew-
rent, subscriptions, and house collections. Of these, then,
only two-thirds are to be taxed. However, the general
rule stated at the beginning of this section must also be
applied to these two-thirds. Therefore the debts and the
18 S. C. C, June 23, 1640 (Rich- so S. C C. EE. et RR.f March
ter, /. c, p. 313, n. 23). '. ,8o5 (Bbriirri, /. c .) ; S. C. C.
20 S. C. Cm Sept a, 1714 (<H&* J"°o 23, 1640 (Richtcr, /. c, a. 23).
n. 21).
>ogle
Original from
UHlVERStf Y OF Vi-'ISCONSI
■
pi
■-""-
388 ADMINISTRATIVE LAW
necessary current expenses for the priests' salary, the
maintenance of buildings and persons (organist, janitor,
housekeeper) may be deducted. There will remain very
little to be taxed in a good many churches of our country,
and no other means is left except what is first stated in
can* I355» P**«a the taking up of a collection.
It may be noted that our pastors and curates not being
beneficiaries in the canonical sense of the word, are ex-
empt from the seminary tax.
the bishop's duties in regard to the seminary
Can. 1357
§ 1. Episcopi est omnia et singula quae ad rectam
Seminarii dioecesani administrationem, regimen, pro-
fectum necessaria et opportuna videantur, decernere,
eaque ut fidel iter observentur, curare, salvis praescrip-
tionibus a Sancta Sede pro casibus peculiaribus latis.
§ 2. Potissimum studeat Episcopus frequenter Sem-
inarium ipse per se visitare, in institutionem quae
alumnis traditur sive litterariam et scientificam sive
ecclesiasticam sedulo vigilare, et de alumnorum in-
dole, pietate, vocatione ac profectu pleniorem sibi
comparare notitiam, maxime occasione sacrarum or-
dinationum.
§ 3. Unumquodque Seminarium suas leges habeat
ab Episcopo approbatas, in quibus quid agere, quid
observare debeant, doceantur turn qui in eodem Sem-
inario in spem Ecclesiae instituuntur, turn qui in
horum institutionem operam suam impendunt.
§ 4. Seminarii interdioecesani vel regionalis regi-
men universum et administratio regitur normis a
Sancta Sede statutis.
jle
j , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1358
389
§ 1. The bishop shall, with due respect to the partic-
ular regulations given by the Holy See, decide what is
necessary and profitable for the proper administration,
government, and progress of the seminary, and enforce
his regulations.
§ 2. Above all the bishop shall try to visit the sem-
inary frequently, watch over the mental and moral train-
ing of the students, and, especially on the occasion of
sacred ordinations, acquaint himself more fully with the
character, piety, vocation, and progress of the pupils.
§ 3. Each seminary must have its statutes, approved by
the bishop, in which the rules for the conduct of students
and teachers are laid down.
§ 4. Interdiocesan or provincial seminaries are entirely
governed by the statutes issued by the Holy See.
For Italy special rules have been issued, which may
serve as models for other interdiocesan seminaries.*1
-
-
seminary officials
Can. 1358
Curandurn ut in quolibet Seminario adsint rector
pro disciplina, magistri pro instructione, oeconomus
pro curanda re farniliari, a rectore distinctus, duo
saltern confessarii ordinarii et director spiritus.
In every seminary there shall be a rector to maintain the
discipline, professors to teach the students, a procurator
to provide for the temporalities, who must be an official
distinct from the rector, at least two ordinary confessors,
and a spiritual director.
si Cfr. Michelctti, ConsHtuHcmeS Seminariontm Clericalism, 1919, p.»
XVIII.
>gle
Original fro m
UNIVERSITY OF WISCONSIN
390 ADMINISTRATIVE LAW
diocesan seminary board
Can. 1359
§ 1. Diocesanis Seminariis bini constituantur coetus
deputatorum, alter pro discipline, alter pro admtnis-
tratione bonorum temporaliurn.
§ 3. Utrumque deputatorum coetum constituunt
bini sacerdotes. ab Episcopo, audito Capitulo, electi;
sed excluduntur Vicarius Generalis, familiares Epis-
copi, rector Seminarii, occonomus et confessarii or-
dinarii.
§ 3. Munus deputatorum per sexennium durat, nee
electi sine gravi causa amoveantur; sed rursus eligi
poterunt.
§4. Episcopus debet consilium deputatorum in ne-
gotiis maioris momenti petere.
§ 1. Kvery diocesan seminary must have two boards,
one for discipline, the other for the administration of
temporal affairs.
§ 2. Each board consists of two priests, appointed by
the bishop with the advice of the chapter or diocesan con-
suitors ; excluded are the Vicar-general, members of the
bishop's household, the rector of the seminary, the pro-
curator, and the ordinary confessors.
§ 3. The term of each board member lasts for six
years, during which he should not be removed from office
without a serious reason ; he may also be reappointed.
§ 4. The bishop is bound to ask the advice of these
boards in important matters.
Such matters of importance are, e. g., the drawing up of
statutes, the admission of pupils, the appointment of the
rector, confessors and teachers, etc., the selection of text-
■"■
{ %r\nnl*> Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
■
9
CANON 1360 391
a
books, and the punishment and dismissal of unruly and
incorrigible students."
By familiares episcopi must here be understood his
comm en sales, i. e., those who partake of the episcopal table
or household and live in the episcopal residence as de-
pendants,33 and since, according to § 2 only priests can be
elected deputati, they will be the bishop's chaplains, secre-
taries, or chancellors, provided they live together with the
bishop.
The reason for excluding these and the Vicar General,
the rector of the seminary, etc., is their dependence ; these
officials should be as independent as possible.
It may not be superfluous to state that the bishop is in
duty bound to have such a seminary board and that he is
not allowed to substitute another, made up of other
persons, for instance, the rector, or the professors, or
other persons prohibited by law.34
qualification of the chief seminary officials
Can. 1360
§ 1. Firmo praescripto can. 891, ad munus rectoris,
directoris Bpiritus, confessariorum et magistrorum
Seminarii eligantur sacerdotes non doctrina tantum,
sed etiam virtutibus ac prudentia praestantes, qui
verbo et exemplo alumnis prodesse possint.
§ a. Rectori Seminarii in propriis muncribus im-
plendis obtemperare omnes debent.
§ 1. For the positions of rector, spiritual director, con-
fessors, and professors in the seminary, only such priests
should be chosen as are distinguished not only by learn-
3SS. C. C, 1585; July. 1589; Episc, P. IX, alleg. 5. n- * n\ (V'oL
Jan. 19, 1595 (Rtchtcr, /. c, p. an, I, aia f.).
n. 1 ff.). a* S. C. C, Aug. *7» '8*4 (A.
93 Barbota, Dt Off. ft Potest, S. S.. I, 657 ff.).
"■
oogle
% .J,., Original fro ni
UNIVERSITY OF WISCONSIN
392 ADMINISTRATIVE LAW
ing, but also by virtues and prudence, so that they may
serve as examples to the students in word and deed.
§ 2. All must obey the rector in the discharge of their
duties.
As to the qualities of a rector, St. Charles Borromeo
demanded that he be of advanced age {aetata provectus),
of a serious disposition (auctoritate gravis) , of tried in-
tegrity (speciali probitate).
With regard to his external canonical status the rector
is (i) exempt from the parish organization, as per can.
1368. If a church is connected with the seminary, he is
the canonical rector of the same (see can. 480, § 3). (2)
He is obliged and entitled to attend the diocesan synod, as
per can. 358, § 1, 3; (3) he is obliged to make the profes-
sion of faith according to can. 1406.
Concerning the internal affairs of the seminary; the
rector ( 1 ) depends in everything and at all times on
the Ordinary; (2) he is the supreme authority in the
seminary, whom all others, of whatever degree, includ-
ing the professors and the ceconomus and other officials,
must obey in matters that pertain to discipline, study, and
ordinary administration; (3) he is not allowed habitually
to hear the confessions of the students who live under
the same roof with him, as per can. 891 ; (4) he may ar-
range and change things of minor importance according to
his good judgment. (5) In urgent and extraordinary
cases, (a) he may expel a student guilty of a grievous
public transgression, but must inform the bishop imme-
diately; (b) make changes of a serious nature after due
deliberation with the Ordinary ; (c) in serious cases which
brook no delay he shall consult with the other officials,
but not with the spiritual director or the confessors, act
upon their advice, and afterwards report to the bishop.30
38 Mich*letti, I c, p. 14 f-
* ( Inr»ClI*> Original from
■OOgie UNIVERSITY OF WISCONSIN
CANON 1361 393
seminary confessors
Can. 1361
§ 1. Praeter confessarios ordinaries, alii confessarii
designcntur ad quos libere alumni accedere possint.
§ a. Si ii confessarii extra Seminarium degant, et
alumnus aliquem eorum acciri postulet, ilium rector
arcessat, nullo modo petitionis rationem inquirens
neque se aegre id ferre demonstrans; si in Seminario
habitcnt, ipsos alumnus libere adire potest, salva Sem-
inarii disciplina.
§ 3- Quando agitur de alumno ad ordines admit-
tendo vel e Seminario expellendo, nunquam confes-
sariorum votum exquiratur.
§ 1. Besides the ordinary confessors, others should be
appointed, whom the students may freely approach.
§ 2. If these extraordinary confessors live outside the
seminary, and a student desires to approach one of them,
the rector shall call him, without in any way asking the
reason or showing signs of displeasure. If these extraor-
dinary confessors live in the seminary, the students may
freely approach them, with due regard, of course, to the
discipline of the house.
§ 3- When a seminarian is to be promoted to sacred
orders, or expelled, the opinion of the confessors must
never be asked.
The rule for religious communities," that they may
have extraordinary confessors at least four times a year,
may also be applied to seminaries.
A confessor may be offered salva disciplina, means that
the granting of such a petition should not constitute a
custom detrimental to good order, e. g., withdrawing from
<
80 See can. 566, | 2, 4.
§le
I , Original fro m
UNIVERSITY OF WISCONSIN
394 ADMINISTRATIVE LAW
the lecture room, or study hall, or common exercises. In
exceptional cases, of course, a relaxation may be jus-
tifiable.
scholarships
Can. 1362
Reditus legati pro clericis instituendis tribui possunt
alumnis in Scminarium sive maius sive minus rite
reccptis, licet nondum clerical! tonsura initiatis, nisi
aliud in tabulis fundationis expresse caveator.
Legacies or bequests left for the training of clerics may
be applied to students of the clerical or little seminary,
even though they have received tonsure, provided the
foundation does not forbid it.
This ruling is substantially taken from a letter of Pius
X to the Cardinal Vicar of Rome. There are some schol-
arships in the Roman Seminary (near the Lateran) re-
served for aspirants of the diocese of Rome. Pius X
ordered that these be reserved for students of theology,
and only in case there be none such may they be given to
students of the lyceum (or college). This also holds
for such as are Romans not by birth, but by domicile.31
Our text is somewhat broader, leaving the choice free be-
tween clerical and collegiate students, provided, of course,
they have entered the college with the intention of becom-
ing priests, and provided that the terms of the bequest
do not ordain differently. It is, therefore, important
that such documents be carefully kept. If a scholarship
is intended only for students of a certain diocese or par-
ish, it cannot be applied to those of another diocese or
parish. If the bequest is for university students, the
scholarship cannot be applied to college students. If it is
37 Plui X, May 5. 1904, n. J {Anal. Eect., XII, »if>,
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1363
395
to be given to one student only, it cannot be divided or
distributed among several. On the other hand, if the be-
quest is made in general terms " for a clerical student,"
without qualification, the president of the college or sem-
inary may give the scholarship to any one attending the
college, the petit seminaire, or the clerical seminary
proper.
ADMISSION TO SEMINARIES
Can. 1363
§ x. In Seminarium ab Ordinario ne admittantur,
nisi filii legitimi quorum indoles et voluntas spem af-
ferant eos cum fructu ecclesiasticis ministeriis pcr-
petuo inservituros.
§ 2. Antequam recipiantur, documents exhibere
debent de legitimitate natalium, de susceptis baptis-
matc et confirmatione ac de vita et moribus.
§ 3. Dimissi ex aliis Seminariis vel ex aliqua re-
ligione ne admittantur, nisi prius Episcopus etiarn se-
creto a Superioribus aliisve notitias requisierit de
causa dimissionis ac de moribus, indole et ingenio di-
missorum, et certo compererit nihil in eis esse quod
sacerdotali statui minus conveniat; quas notitias,
veritati conformes, eorum conscientia graviter onerata,
suppeditare Superiores debent
§ 1. The Ordinary shall admit into the seminary only
boys of legitimate birth, whose character and inclination
justify the hope that they will devote themselves forever
to the ecclesiastical ministry.
§ 2. These, before they are received, must submit
proofs of legitimate birth, certificates of Baptism and
Confirmation, and testimonials of their life and conduct.
These documents, to which a medical certificate might
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
■
pi
396 ADMINISTRATIVE LAW
%
profitably be added, are to be presented to the rector, who
shall submit them to the Ordinary. The latter, as stated
above, must consult with the seminary board."
§ 3. Such as have been dismissed from another sem-
inary or from a religious institute can be admitted only
under the following conditions :
(a) The bishop must ascertain, if necessary even by
way of secret information from the superiors and other
persons, the reasons why they were discharged ;
(b) He must satisfy himself about their moral stand-
ing, character, and intellectual capacity, and
(c) He must be morally certain that there is nothing
in (hem that would not be compatible with the sacer-
dotal state.
The superiors who are called upon for such informa-
tion are bound in conscience to tell the truth as far as
they are able. Untruthful recommendations have often
done great damage.
plan of studies for little seminaries
Can. 1364
In inferioribus Seminarii scholis:
i.° Praecipuum locum obtineat religionis discipline
quae, modo singulorum ingenio et aetati accommo-
date diligentissime explicetur.
2.0 Linguas praesertim latinam et pat nam alumni
accurate addiscant;
3. " Ea in ceteris disci pi inis institutio tradatur quae
conveniat communi omnium culturae et statui cleri-
corum in regione ubi alumni sacrum ministeriurn ex-
ercere debent.
SB Mieheletti, /. c, p. 90 ff.
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1364
397
1. The first place in the study plan of the petit seminaire
belongs to religious instruction, which should be carefully
given and adapted to the intellectual capacity and age of
the hearers. Here it may not be amiss to state what is
prescribed for the Italian schools. Each week, one period
or hour for catechism and one for Bible History in the
high school or academic grades ; one hour for higher cat-
echism and apologetical instruction in the college, at least
in the higher grades.89
2. Especially ihe Latin language as well as the vernac-
ular should be learned correctly. Nothing is prescribed
as to the number of hours to be devoted to each ; but it
goes without saying that the language of the Church
should be given such a prominent place that the pupils
realize its importance as a main branch.
A difficulty may arise in regard to mixed schools,
i. e.t such as are partly secular and partly ecclesiastical.
In these, says Leo XIII as well as the above-quoted
Circular of the Consistorial Congregation, the Ordinaries
should see to it that the plan of studies be adapted as
closely as possible to that prescribed by the civil gov-
ernment.40 In other words, the colleges conducted by
and for ecclesiastics should not fall below the standard
prescribed by the State.
Should it be necessary to supplement the instruction in
certain branches in keeping with ecclesiastical tradition,
certain periods or hours may be added for those who fol-
low the ecclesiastical course. This is a very wise ruling.41
3. As to the other branches, everything should be taught
that is required by the intellectual standard of the coun-
try in which the students expect to exercise the sacred
a» S. C. Consist.. Litterae Circu-
lates, July 16, 191a, n. 8 {A. Ap.
s~ iv, «s).
40 1*0 X1TT, "Depuii It jour,"
Sept 8, 1879; Lift. Cite, n. 6
(/. c.y
«UZ.fct. Ore, L c.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
398 ADMINISTRATIVE LAW
ministry. This standard differs in different countries, but
everywhere a priest is looked upon as a man of culture
and the Catholic clergy in general as the " light of the
world." To conform to this ideal students for the minis-
try must acquire the knowledge and learning expected
-
of them and necessary to enable them to exercise a whole-
some influence on their fellowmen. This can only be ac-
complished by a comprehensive and thorough training in
those branches which society at present considers the sine
qua non of culture. This is more efficaciously and pal-
pably achieved by obtaining the usual academic degrees.42
This does not mean that all clergymen are called upon
or expected to excel in secular learning, but that some
at least should be first-class all-around scholars. All,
however, are obliged to acquire such a degree of even
worldly science as is necessary to their state, in order
that there may be no prejudice and unfounded accusa-
tions."
philosophy and theology
Can. 1365
§ 1. In philosophiam rationalem cum affinibus dis-
ciplinis alumni per integrum saltern biennium incum-
bant.
§ 2. Cursus theologicus saltern integro quadriennio
contineatur, ct, praeter theologiam dogmaticam ct
moralem, complecti praesertim debet studium sacrae
Scripturae, historiae ecclesiasticae, iuris canonici,
liturgiae, sacrae eloquentiae et cantus ecclesiastici.
§ 3. Habeantur etiam lectiones de theologia pas-
42 Leo XIII, "Officio sanctissimo," 48 ibid.
Dec. 23, 1*87; " Dtpms le jour/'
Sept. 8, 1899.
§le
k ,|,, Original from
UNIVERSITY OF WISCONSIN
-
-'
CANON 1365 399
torali, additis practicis exercitationibus pracscrtim de
ratione tradendi pueris aliisve catechismum, audiendi
confcssioncs, visitandi infirrnos, assistendi moribundis.
§ I. The philosophical course must last at least two
-
continuous years and comprise, besides philosophy proper,
also the allied branches.
Philosophy is here understood in its proper sense, as the
knowledge or science of things in their ultimate princi-
ples.44 The disciplinae afUnes are officially described as
follows: mathematics, natural or physical science, litera-
ture, Latin and Greek, history. The number of lessons
to be devoted to each is stated as one hour per day. How-
ever, it must be observed that this plan was drawn up
for the Italian lyceum, which has a three years' course.
Counting five periods a week (they have one full holiday
every week) this would be fifteen hours per week for
three years. Distributing these lessons over two years, we
have about 7 to 8 hours for each per week. To these must
be added, according to the same Circular, one hour for
review or repetition each week, and one hour for debate
or disputation every two weeks.*6 Thus about 8 or 9 pe-
riods of philosophy proper are required to do justice to
this important branch.
§ 2. The theological course should last at least four full
years and comprise, besides dogmatic and moral theology,
the study of Holy Scripture, Church history, Canon Law,
liturgy, sacred eloquence, and ecclesiastical chant.
The number of hours to be devoted to dogmatic the-
ology, according to the Circular,40 is one a day, I* v., five
hours per week, plus one hour for disputation and one
44 Cfr. Turner, History of Philos- *« Ibid., nn, n f. {A. Ap. S.,
ophy, 1903, p. 1. IV, 496 f.).
•a till. Circul. S. C. Consist.,
Tu!y 16, 191*, n. 9.
>Ie
j , Original fro nn
UNIVERSITY OF WISCONSIN
400 ADMINISTRATIVE LAW
for review, in all, seven hours a week for dogmatic the-
ology.
For moral theology no definite number of hours is as-
signed, but it is added that lectures on sociology and the
elements of Canon Law should be given as supplementary
to moral theology.
For Holy Scripture four periods per week are assigned
throughout the four years' course. The first two years
are to be devoted to introduction and the last two to
exegesis.
Church History has no definite number prescribed,
neither have the secondary branches of Biblical Greek,
Hebrew, sacred eloquence, patrology, liturgy, sacred ar-
chaeology, sacred art, and Gregorian Chant.
It may be noted that this programme, as outlined in the
Circular, is to be taken as directive only, not as a law
in the strict sense. Details may be left to the seminary
board. Note that the same Circular47 says that there
should not be more than four, or at most four and one-
half hours school a day, and these should not follow one
another consecutively, but should be divided up. Too
many lessons are incompatible with the discipline of the
seminary, the necessary exercises of piety, and the phys-
ical well-being of the students.
§ 3 rules that pastoral theology should also be taught.
Practical exercises should be added. These should con-
sist in pedagogic instructions, in order that the candi-
dates may learn how to teach catechism, to hear confes-
sions, to visit the sick, and to assist the dying.
«7 Ibid., a. 7.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1366 401
qualification of seminary professors
Can. 1366
*
§ 1. Ad magistcrii munus in disciplinis philosophi-
cis, theologicis ct iuxidicis, ii, ceteris paribus, iudicio
Episcopi et deputatorum Seminarii, praeferantur, qui
laurea doctorali potiti sint in Universitate studiorum
vel Facilitate a Sancta Sede recognitis, aut, si agatur
de religiosis, qui simile testimonium a suis Superiori-
bus maioribus habeant.
§ 2. Philosophiae rationaLis ac theologiae studia et
alumnorum in his disciplinis institutionem prof cssores
omnino pertractent ad Angelici Doctoris rationem,
doctrinam et principia, eaque sancte teneant.
§ 3. Curandum ut saltern sacrae Scripturae, the-
ologiae dogmaticae, theologiae moralis, et historiae
ecclesiasticac, totidem habeantur distincti magistri.
§ 1. For the teaching of philosophy, theology, and
canon law, other qualifications being equal, those should
be preferred who have obtained the doctor's degree from
a university or faculty recognized by the Holy See. The
decision lies with the bishop and the seminary board.
The phrase ceteris paribus is easily understood in the light
of can. 1360, § 1, which demands not only learning, but
also virtue and prudence, as necessary qualities of a pro-
fessor. Teachers taken from the rank of rcliaious should
have testimonials from their superiors testifying to their
doctor's degree or recognized capacity and scholarship.
§ 2. Mental philosophy and theology must be taught
according to the method, leaching, and principles of the
Angelic Doctor, to which the professors should religiously
adhere.
The method here understood is the scholastic form in
jle
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
402
ADMINISTRATIVE LAW
which the Summa Thcologica of St. Thomas and, in fact,
all the great Sumtnae of the thirteenth century are com-
posed.
The term doctrina in this connection is not so easily
defined, but, taken as a whole, no doubt means the teach-
ing of St. Thomas, more especially his metaphysics,*'
though not each and every sentence laid down in his
works need be accepted.
The principles of the Angelic Doctor are the rules or
theses around which his system clusters, and upon which
it more or less hinges, especially in metaphysics.4*
It was but natural that the Summa Thcologica of St.
Thomas should be prescribed as the text-book for theolog-
ical seminaries. This does not mean that no other sys-
tematic text-book may be used for recitation purposes, but
only that the Sumtna must be used and explained for the
scholastic part, i. e.t in the treatment of purely speculative
questions.00 Of modern erudition there is but little in the
Summa, and yet dogmatic theology now-a-days must be
treated with the aid of history and Holy Writ.51 That it
will not be easy for a Scotist or a Molinist to feel at home
in the Thomistic system goes without saying ; but no other
system is condemned by the preference given to St.
Thomas.
§ 3. Care should be taken that at least Holy Scripture,
dogmatic theology, moral theology, and Church history be
taught by different professors.
48 Pius X, " Doctoris Angelici,"
June 39. I9M C* Ap. $•• VX 3J»).
*9 Sec the 34 theses proposed by
S. C. Stud. July 37, i9U (A. Ap.
S., VI, 383 ff.).
50 Cfr. the documents already
quoted and S. C Sent., March 7,
1916 <A. Af. S., VIII, 15;).
51 S. C. Consist.. Lit. Circut., n.
11.
►ogle
Original from
UNIVERSITY OF WISCONSIN
CANON 1367 403
a
a
o
THE RELIGIOUS TRAINING OF SEMINARISTS
a
Can. 1367
Current Episcopi ut alumni Seminarii:
i.° Singulis diebus communiter matutinas et sero-
tinas preces recitent, per aliquod tempus mentali ora-
tioni vacent, sacriiicio Missac intcrsint;
2.0 Semel saltern in hebdomada ad sacramentum
poenitentiae accedant et frequenter, qua par est pie-
tate, Eucharistico pane se reficiant ;
3.0 Dominicis et festis diebus, sacris Missarum et
Vesperarum sollemnibus adsirit, altari inserviant sa-
crasque caeremonias exerccant, praesertim in ecclesia
cathedrali si id, iudicio Episcopi, sine disciplinae et
studiorum detrimento fieri possit ;
4.0 Singulis annis per aliquot dies continuos exer-
citiis spiritualibus vacent;
5.0 Semel saltern in hebdomada adsint instructioni
de rebus spiritualibus quae pia exhortatione claudatur.
The bishops shall see to it that the students of the Sem-
inary:
l.° Recite their morning and evening prayers in com-
mon, make a short meditation, and assist at Mass;
2.0 Go to confession at least once a week and fre-
quently receive holy Communion with proper devotion ;
3.0 Assist at solemn Mass and Vespers on Sundays and
holy-days of obligation, serve at the altar, and perform
the sacred ceremonies, especially in the cathedral church,
provided the bishop thinks it can be done without dis-
advantange to discipline and study ;
4.0 Make a retreat once a year for several successive
days;
Gi Original from
°°al(- UNIVERSITY 0FWI5C0NSIN
404 ADMINISTRATIVE LAW
5.0 At least once a week attend a spiritual lecture,
which may be followed by a pious exhortation.
We hardly believe that this canon applies to " little
seminaries " in globo. At most some of its prescriptions
may serve as a directive norm for these, as far as circum-
stances permit. The practice or exercise of sacred cere-
monies is certainly only intended for seminarians in the
strict sense. Weekly confession for academic and col-
legiate students cannot be prescribed as a rule. Where
there are day scholars, not even i° can be enforced.
Therefore we believe that this canon is primarily intended
for clerical seminaries, but may, as stated, serve as a di-
rective norm for high schools and colleges.
To superintend the pious exercises is the special duty
of the rector,62 who should see to it that genuine and solid
piety be fostered in the candidates to the sacred ministry.
Hence he must combat hypocrisy and watch over the free-
dom of conscience. This presupposes free choice of con-
fessors, according to can. 1361. The rector should be
cautious and circumspect in inquiring into the frequenta-
tion of the Sacraments, and use no compulsion or moral
persuasion in this matter. He shall also inculcate this
mode of acting in his officials.
The spiritual director conducts the daily, weekly, and
monthly devotions of the seminarists, but under the super-
vision of the rector (can. 1360, § 2). He should be
ready to hear confessions whenever asked by the students.
But he, too, must leave the freedom of conscience intact,
scrupulously abstain from restricting the choice of con-
fessors, and be specially careful about the seal of confes-
■
sion.
It may be asked: If perfect liberty of conscience is
62 Michdetti, /. fc, p. 26 ff.
D
'■-.
v ,|,, Original fro m
UNIVERSITY OF WISCONSIN
>gk
CANON 1367 405
guaranteed, how can the discipline, and especially the rule
laid down in our canon, be observed? We answer as fol-
lows: The rector as well as the spiritual director should
give warning in their conferences and spiritual lectures
as to the obligation in general of observing this rule, a
protracted violation of which can not long remain hidden
from the eyes of a vigilant rector or spiritual director.
The rector, then, when perceiving any case of palpable
negligence, must correct the culprit, and, like a religious
superior, is bound to correct even apparently slight faults
if a serious relaxation of discipline is to be apprehended
therefrom.53 As to individuals, the matter must first be
settled with the confessors who are the judges of con-
science. It may be that in cases of scrupulosity the con-
fessor would advise less frequent confession. Should a
penitent say that he has nothing to confess, the rules
of materia sufftcicns and neccssaria must be applied. Giv-
ing scandal by not going to confession would seem to form
a materia sufiiciens. At least the penitent should present
himself to hear the confessor's advice and receive his
blessing. Thus freedom can be safeguarded as well as
discipline. What goes on between the confessor and the
penitent is a matter entirely subtracted from public dis-
cipline.
Our canon says that the Ordinary must see to the en-
forcement of this rule. This can be done especially on
the occasion of his visits, when the bishop may interpel-
late the rector as to its observance. The rector is bound
to answer his questions truthfully. Of course, neither
the spiritual director nor the confessors may reveal any-
■ thing that they know from confession only. However,
the spiritual director, who has every opportunity to watch
03 Cfr. Marc, Institutions Morales, II, n. 3170, q. 3.
G] Original from
OOglt UNIVERSITY 0FWI5C0NSIN
-
■
pi
ADMINISTRATIVE LAW
the students, may express his judgment in general terms,
without mentioning any individual, as to the general ob-
servance of our canon. The Ordinary may give weight
to the rule by threatening injunctions or penalties, against
which no appeal is admitted.5*
exemption
Can. 1368
Exemptum a jurisdictions paroeciali Seminarium
esto; et pro omnibus qui in Seminario sunt, parochi
officium, excepta materia matrimoniali et firmo praes-
cripto can. 891, obeat Seminarii rector eiusve dele-
gatus, nisi in quibusdam Seminariis aliter a Sede
Apostolica constitutum.
The seminary is exempt from the jurisdiction of the
pastor, whose place is taken by the rector or his delegate
for all who live in the seminary in all things except mar-
riage and matters concerning which the Holy See may
have differently provided. But the rule laid down in can.
891, that the rector should not habitually hear the confes-
sions of boarding pupils, must not be set aside.
This canon, though quite clear in itself, raises more than
one doubt. First of all, there is the very term seminary.
Does it comprise every seminary, the little as well as the
clerical? In view of the definition given above, in the
introduction to this title, we believe exemption may be
claimed by any seminary which is such in the proper
sense of the word. For as the bishop may exempt some
religious families and charitable institutions from parish
organization,00 so does the Code exempt the seminaries
B4 Bened. XIV, "Ad militantit," lion of seminary cannot he ro ipso
March 30, 1742, 8 34. applied to colleges of a promiscuous
SB Can. 464, fi 2, But the defini- character; the clerical character
^
/"* ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 1363
407
■
from the same. Besides, the general rule that, where the
law makes no distinction, neither should the interpreter,
may here be safely applied, as the law is favorable to the
seminaries. But only such seminaries, either little or cler-
ical, as are under the control of the local Ordinary, or
interdiocesan and pontificial seminaries, must be under-
stood. Hence seminaries governed by religious cannot
claim this privilege, unless the Ordinary should see fit to
apply can. 464, § 2, as mentioned above.
The next question is : Who are " all those who are in
the seminary "? No doubt the officials as well as the pro-
fessors and pupils who habitually live in the seminary,
and as long as they live there, even during vacation, should
they spend their vacation there. And we believe that this
rule may also be applied to the so-called villcggiatura, or
summer resort, which is a desideratum for all semina-
ries." This privilege doubtless also applies to laymen
working for, and living as boarders in, the seminary, for
the text admits this extension. But concerning these lay-
men it must be understood that, if they want to get mar-
ried, they must do so in the parish church, according to
the law established in can. 1094 fF. All other sacraments,
including baptism and confirmation, these laymen may re-
ceive in the seminary.
But what about the Sisters in the seminary? Their
presence there is necessary for more than one reason, and
is now tolerated by Roman practice. They are subject to
the following rules : BT
I. They may be called or dismissed by the local Or-
dinary according to his discretion.
must certainly be prevalent, other-
wise any school might be called a
seminary.
5fi S. C. Consist., Litt. Circut.,
July 16, 191a, n. 3 (A. Af. S., IV,
493).
5T Micheletti, I. c„ p. 40.
Go >gle
Original from
UNIVERSITY OF WISCONSIN
4o8 ADMINISTRATIVE LAW
2. The appointment of the superioress and the selec-
tion of sisters for service in the seminary is left to the
superioress general, who, however, should comply with
the wishes of the local Ordinary.
3. The interior government of the Sisters employed in
the seminary must be left to the local superioress and
neither the rector nor any other official should interfere
therewith.
4. A private oratory should be assigned to the Sisters
for their spiritual exercises.
5. Their habitation should be entirely separate from the
other parts of the seminary, and no one, except the rector,
vicerector, and procurator, shall be allowed to communi-
cate with the Superioress or the Sisters.
6. As to confessions the common law, as stated in can.
520, must be applied.
From these observations the question with regard to the
rector's rights is easily settled. The Sisters' chaplain
must be assigned by the local Ordinary, according to can.
529. Their confessors must have the requisite faculties
from the Ordinary; and for the rest, especially for their
" peace of conscience," the Sisters may avail themselves of
the favors granted in can. 522-523.
seminary discipline
Can. 1369
§ 1. Seminarii rector et alii omnes moderatores sub
eius auctoritate curent ut alumni statuta ab Episcopo
probata studiorumque rationem adamussim servent ac
spiritu vere ecclesiastlco imbuantur.
§ 2. Saepius eis verae et christianae urbanit.at.is
leges tradant, eosque exemplo suo ad il las colendas
excitent; hortentur praeterea ut praecepta hygienica,
>Ic
( * ^ -. i\,* Originalfrorn
UNIVERSITY OF WISCONSIN
CANON 1369 409
vestium et corporis munditiam et quandam in con-
versando comitatem cum modestia et gravitate con-
iunctam, iugiter servent.
§ 3. Sedulo vigilent ut magistri suo munere rite
fungantur.
§ 1. The rector and all other officials subject to his
authority shall take care that the students closely observe
the statutes approved by the bishop as well as the plan of
studies, and that they be imbued with the true ecclesiasti-
cal spirit.
If the students are bound to follow the programme laid
down for the various courses, it naturally follows that the
professors too should follow it (§ 3)- Therefore, says
the oft-quoted Circular, the professors should not waste
time in long discussions on some particular subject —
perhaps a "hobby" — but finish their pensum within the
period assigned for the same. Ordinaries are exhorted to
see to it, that the lectures on dogmatic and moral theology,
and, as far as possible, also those on philosophy, at least
the general outlines, are given in Latin." This, of course
cannot mean that the vernacular is to be banished. For
the positive parts of dogmatic theology and sociological
questions arc certainly more easily and profitably treated
in the vernacular language. But the speculative parts
should be treated in the accurate and precise Latin ter-
minology handed down by tradition.
§ 2. The seminary officials should insist upon the rules
of genuine Christian politeness and excite the students to
imitation by their example. They should also exhort
them to observe the rules of hygiene, be cleanly in dress
and appearance, and practice courtesy joined with modesty
and gravity.
*s 2.1*. Circul., n. 13.
§le
f** ^ v -.1,* Original from
UNIVERSITY OF WISCONSIN
■
410 ADMINISTRATIVE LAW
students outside the seminary
Can. 1370
Quoties alumni ob quamlibet causam extra Sem-
inarium morentur, scrvetur pracscripturn can. 97a, § 3.
When students, for whatsoever reason, live outside the
seminary, they should be placed under the care of pious
and worthy persons, who shall watch over them and lead
them on to piety, as stated under can. 972, § 2.
dismissal of students
Can. i 371
E Seminario dimittantur dyscoli, incorrigibiles, sedi-
tiosi. ii qui ob mores atque indolem ad statum ec-
clesiasticum idonei non videantur; itemquc. qui in
studiis adeo parum proficiant ut spes non affulgeat eos
sufHcientem doctrinam fore assecuturos ; praesertirn
vero statim dimittantur qui forte contra bonos mores
aut fidem deliquerint.
Disorderly, incorrigible, and rebellious students, such
as appear unfit for the ecclesiastical state on account of
their conduct and character, and those who make so little
progress in their studies that there is no hope that they
will acquire a sufficient knowledge, should be dismissed.
Those who offend against faith and good morals — by
which latter term the praeceptum contra sextum is chiefly
meant — should be expelled at once.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
TITLE XXII
SCHOOLS
This title sounds more restricted than its contents bear
out. Education comprises Christian training of every
kind and degree, no matter in what place or form it
is given, whereas the term school has, at least in com-
mon parlance, a narrower meaning, to wit, a place or
building where education is imparted; or an institution of
learning or training, especially when the latter is carried
on in a systematic form. Education in general means
mental and moral development of the faculties of man;
school means a systematic education offered in a place or
building assigned for that purpose. Thus we also speak
of compulsory education and compulsory schooling, which
terms differ widely, since the former does not necessarily
include the latter, as shall be seen under can. 1375. The
first of the following canons refers to Christian education
in general.
THE DUTY OF CHRISTIAN EDUCATION
■
a
Can. 1372
§ 1. Fideles omnes ita sunt a pueritia instituendi ut
non solum nihil eis tradatur quod catholicae religioni
raorumque honestati adversetur, sed praecipuum in-
stitutio religiosa ac moralis locum obtineat.
§ 2. Non modo parentibus ad normam can. 1113,
sed etiam omnibus qui eorum locum tenent, ius et
411
>Ie
Y %\st Originalfroni
UNIVERSITY OF WISCONSIN
Q
..-.
412 ADMINISTRATIVE LAW
gravissimum officium est curandi christianarn libe-
rorurn educationem.
§ 1. All the faithful must from childhood be educated
in such way that not only are they taught nothing that is
contrary to faith and morals, but that religious and moral
training takes the first place.
§ 2. Not only parents, but all those who take their
place, have the right and the solemn duty to provide a
Christian education for their children.
It seems superfluous to add anything to this pregnant
text, which is the concrete embodiment of the many sol-
emn documents which the Holy See issued against the
liheralistic tendencies of the last century. One was di-
rected especially to the bishops of the U. S. by the Holy
Office.1 It says that the tender age is most susceptible
to the seeds of vice as well as virtue. Experienced teach-
ers and priests could tell a thrilling story of the difference
between children brought up in the atmosphere of faith
and piety, and those who come from homes where religion
has little or no influence.2
The right of parents and guardians under God is in-
alienable and inviolable because the child belongs primar-
ily and before others to the parents. This natural right
has its foundation in the very fact of procreation and in-
volves the right of the parent to feed, clothe, and educate
his children physically, intellectually, and morally.8
These rights involve their corresponding duties, which pa-
rents may neither evade nor ignore.* For by doing so
they would violate their natural duties towards their God-
1 S. O.. Nov. a*. 1875 IColL P. *See the excellent paper of Car-
F., n. 1449). dinil O'Connell in Catholic Edu-
2 Cfr. Becker, S. J., Christie* cational Association Bulletin, Aug;.
Education or Th* Duty of Parents; i9'9; Cavagnit, Instit. Iuris Pub.
1899. p. 138 ff. Ecclm i88j. Vol. IV, p. 14 f.
I See can. 11 13.
5 I lnr.nl*> Original from
.OO^K. UNIVERSITY OF WISCONSIN
■
pi
CANON 1373 413
given proteges, for whom they are responsible and ac-
countable to the Creator.
From this follows that the parents are entitled and
obliged to provide, either themselves or through others,
the necessary moral and religious training and to keep
their children away from everything and every person
that would be dangerous to faith or morals.
religious instruction in schools
Can. 1373
§ 1. In qualibet elementaria schola. pueris pro
eorum aetate tradenda est institutio religiosa.
§2. Iuventus, quae medias vel superiores scholas
frcqucntat, pleniore religionis doctrina excolatur, et
locorum Ordinarii curent ut id fiat per sacerdotes zelo
et doctrina praestantes.
§ 1. In every elementary school religious instruction
should be given the children according to their age.
These elementary, popular or grade schools are espe-
cially destined for the building up of good character,
and since an education which guarantees public peace and
tranquillity cannot be solid and lasting without the prin-
ciples of Christian truth, moral as well as intellectual,
it follows that no schooling without religious training is
able to produce the desired effects. These words of Pius
IX to the Archbishop of Freiburg (Baden) 5 need no
further proof than a glance at the present social condition
of the world. The programme of the so-called " Lib-
erals," who propose to take the schools away from the
influence of the Church, and to limit education to the pur-
suit of worldly happiness,0 has never received a more ter-
a " Quum non sine," July 14, a Syllabui of Piut IX, prop. 48
1864 (Coll. P. F.. n. 1260). (Denz.. n. 1596).
§le
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
414 ADMINISTRATIVE LAW
rible shock than in the late war. Unfortunately, the ene-
mies of Christian education have eyes but see not. Ra-
tionalism and materialism clings to their bones and often
has its principal nerve in the pocket.
§ 2. Youths who frequent the secondary or higher
schools should be given fuller instruction in Christian
doctrine, and the local Ordinaries should see to it that
this instruction is given by zealous and learned priests.
Such fuller instructions are contained in the larger cate-
chism as well as the so-called evidences of religion, which
should be imparted so that they may be easily grasped
and assimilated by the pupils.7
~
■
non-catholic schools
Can. 1374
Pueri catholici scholas acatholicas, neutras, mixtas,
quae nempe etiam acatholicis patent, ne frequentent.
Solius autem Ordinarii loci est decernere, ad normam
instructionum Sedis Apostolicae, in quibus rerum ad-
iunctis et quibus adhibitis cautelis, ut periculum per-
versionis vitetur, tolerari possit ut eae scholae cele-
brentur.
Catholic children should not frequent non-Catholic,
neutral, or mixed schools, i. e., such as are open also to
non-Catholics. It is for the local Ordinary to decide, ac-
cording to the instructions of the Apostolic See, in what
circumstances and with what precautions attendance at
such schools may be tolerated, without danger of perver-
sion to the pupils.
There is a term used in this canon which recalls the fa-
mous controversy waged about the parochial schools in
7 Piui IX, " Acerbo nimis," April 15, 1905, n. V.
"-.
* - •»-»!» Original ftorn
lOOgll UNIVERSITY OF WISCONSIN
CANON 1374
415
this country a generation ago. It is tolerari possit,"
which was given only for particular cases and in view of
special circumstances, and may be called an equitable
arrangement departing from the letter of the law.8 The
instructions of the Holy See for our country were con-
tained in a document issued by the Holy Office,8 Nov. 24,
1875. Others of a similar tenor were given for Canada,
Ireland, England and missionary countries.10 All of
them revolve around the question whether the influence of
the Church is entirely excluded from the public schools
and the Catholic pupils are exposed to danger to the faith ;
if so, the bishop shall provide for their instruction as far
as lies within his power, and at the same time warn the
faithful and announce to them that they cannot in con-
science permit their children to frequent schools opposed
to the Catholic Church.11
The circumstances in which attendance at non-Catho-
lic schools may be permitted are expressed in the above-
named Instruction to the bishops of the U. S. as follows:
"Generally speaking, such cause will exist if there is no
Catholic school in a place, or if the one that is there
cannot be considered suitable to the conditions and cir-
cumstances of the pupils." This suitability must not be
identified with mere fashionableness, for there is no pro-
portion between the danger to faith and "stylishness."
Hence said instruction continues: " Parents who neglect
to give this necessary Christian training and instruction to
their children, or who permit them to go to schools in
8 See the excellent work of Burns,
C. S. C, The Growth and Develop-
ment of the Catholic School Syi'
lent in U. S., 1912, chs. XI f.
» Coll. P. F., n. 1449.
10 S. C. P. F., March 14. 1895;
Sept. 18, 1819; Jan. 16, 1841; April
7, i860; Aug, 6, 1867 (Oxford and
Cambridge); 1659; July 19, 1838;
March jo, j86j; April *5. '8*8,
(.Colt., no. 1890; 7JS. 1100; I3»a.
1329).
11 Pius IX, " Quum non sine,"
July 14, 1864 (Coll. P. F„ n. w6o).
>ogle
Original from
UNIVERSITY OF WISCONSI
416 ADMINISTRATIVE LAW
which the ruin of their souls is inevitable, or, finally, who
send them to the public schools without sufficient cause
and without taking the necessary precautions to render
the danger of perversion remote, and do so while there is
a good and well-equipped Catholic school in the place,
and while they have the means to send them elsewhere to
be educated; — such parents, if obstinate, cannot be ab-
solved, as is evident from the moral teaching of the
Church." M
the right of the church to establish schools
Can. 1375
Ecclesiae est ius scholas cuiusvis disciplinae non
solum elementarias, sed etiam rnedias et superiores
condendi.
-
The Church has the right to establish schools of every
kind, not only elementary, but also secondary and higher
schools. Note well, the Church does not claim the ex-
clusive right to establish schools, as she does with re-
gard to seminaries for the education of the clergy (can.
1352). Our canon claims for her the right of establish-
ing schools of every kind, (cuiusvis disciplinae). By dis-
cipline is generally understood what we call a branch or
department of learning. Hence the term includes ele-
mentary, secondary, and higher schools, colleges and uni-
versities, even the special faculties of theology, philoso-
phy, medicine, and law. Among the secondary schools.
figure training and professional schools and high schools
for boys and girl (academies), whatever name they may
go by in different countries, for the terminology varies.1*
To establish a school means to furnish the means
12 CoU. P. F., n. 1449.
IS Sec Calk. Eneycl., Vol. XIII j. r. H Schools.'
jle
k ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
~
CANON 1375 417
wherewith to commence and continue it. Such an act
does not exclude the cooperation of other persons, either
public or private, who may participate in the administra-
tion or regulation of a school.
A school is a building or other place where education is
given in a more or less systematic manner. Now-a-days
education is concentrated in schools; hence the " fight for
the schools" waged in nearly every civilized country.
Yet it cannot be denied that there is not a purely mental
or abstract, but a real and well-founded distinction be-
tween education and school. For education comprises the
development of the moral and mental faculties in the
whole range of science and moral principles. Schools on
the other hand are differentiated by the higher and lower
degrees of studies, these being divided into various
grades, as the appellations elementary, secondary, etc.,
clearly indicate. Besides, schools are localized and at-
tached to state and municipal machinery, whilst education
may and should be the common good of all.
The Code, then, by claiming the right of establishing
schools for the Church, leaves aside the question of educa-
tion in general. Whence this claim to establish schools?
Whatever has reference to the purpose or end for which
the Church was founded, belongs to her domain. Now
schools, as the universal and ordinary means of convey-
ing a Christian education, undoubtedly have a natural con-
nection with the end of the Church. Consequently the
Church has the right of establishing and conducting
schools.14 The major premiss follows from the fact that
the Church is an autonomous, an independent, and a per-
fect society endowed with the right of procuring the
means necessary to attain its end. It will not do to say
1* Cfr. C«vagnis, Institut, Juris Eccl. Pub., Vol. Ill, p. 69 f., I. IV,
n. 117 ff.
i I . .. U1L, Original from
■OOgK. UNIVERSITY OF WISCONSIN
4i 8 ADMINISTRATIVE LAW
that the State offers to the Church these means, because
one sovereign society cannot be at the mercy of another, —
the Church subject to the State. As to the minor, viz.,
that schools are closely connected with the end of the
Church, the following observation may suffice. In itself a
school may have a merely temporal purpose, and thus be
referred to the State, the end of which is to procure tem-
poral prosperity and order, but a systematic separation be-
tween scientific training and moral development results in
a one-sided education which can bear no solid and lasting
fruits, because the unity of man requires an even evolution
of all his faculties, intellectual as well as moral. And
since true morality cannot exist without religious princi-
ples, it naturally follows that the whole business of educa-
tion is closely bound up with religion. To provide a relig-
ious and moral training for her subjects certainly apper-
tains to the Church, whose proper end is spiritual, relig-
ious, binding man's temporal to his eternal destiny.
Neither is there any danger that religious schools will
breed disloyalty or disturb the peace among citizens. The
very fact that religion teaches submission and obedience to
lawful authority and love of fellowmen should be suf-
ficient to dispel any misgiving in that direction. This is
acknowledged by honest non-Catholic politicians,15 and the
late war has amply proved that Catholics are as loyal as
the members of any other denomination.
Here we may recall the law of prescription. The
Church it was who in the turmoil of barbarous invasions
held high the torch of civilization and preserved it against
the assaults of savage hordes. To her most of the higher,
cloistral and cathedral schools and universities, are in-
debted for their very existence and endowments. Many
of those very chairs that have been made the catapults
15 Thus Treitschkc, Vorlcsungen Qber Politik, I, 350.
G] Original from
°°8IL UNIVERSITY OF WISCONSIN
CANON 1376 419
from which poisonous missiles are hurled against the
Catholic Church, owe their foundation to ecclesiastical
benefices and persons.
This may suffice to illustrate can. 1375. It is not our
task to outline what the State may justly claim. This
would require an extensive investigation. Only one state-
ment may be permitted. What is said in the heat of con-
troversy cannot always be accepted as objective truth.
Cavagnis 1S vindicates the following functions to the
State: ( 1 ) It should establish schools when private cit-
izens, or other agencies, neglect to do so; (2) It should
see to it that the social and civic relations and good order
are not disturbed or subverted in private schools; (3) It
should repress and punish rebellious disturbances and dan-
gerous machinations. Similar views are expressed by
many other Catholic authors,17 viz., that compulsory edu-
cation, but not compulsory schooling, may be vindicated to
the State, which, as Cavagnis also admits, has the greatest
interest in the adequate training of its citizens. It may be
quite true that these ideas are imported from the Old
World, as Cardinal Manning observed,18 and that the con-
ditions of the New York are different ; but the underlying
principles must be as true here as they arc there.
~
universities, faculties, and degrees
Can. 1376
§ i. Canonica constitutio catholicae studiorum Uni-
versitatis vel Facultatis Sedi Apostolicae reservatur.
§ 2. Universitas vel Facultas catholica, etiam re-
ligiosis familiis quibuslibet concredita, sua debet
habere statuta a Sede Apostolica probata.
tlfiMft lurit Publ. Ecct., Vol. 17 Th. Meyer, S. J., Institutions
HI, p. 64, I IV, n. 107; for the lurit Nat., 1900, Vol. II, 703 ff.
rest we refer to Burnt, /. c, eh. IX. 18 Burna, L c, p. mo.
jle
j , Original from
UNIVERSITY OF WISCONSIN
420 ADMINISTRATIVE LAW
Can. 1377
Gradus academicos qui effectus canonicos in Ec-
clesia habeant, nemo conferre potest, nisi ex facilitate
ab Apostolica Sede concessa.
The canonical establishment of Catholic universities and
faculties is reserved to the Holy See.
These, even when entrusted to religious institutes, must
have their statutes approved by the Apostolic See. No
academic degree produces any canonical effect unless it
has been conferred in virtue of the power granted by the
Apostolic See.
The difference between a university and a faculty con-
sists in this, that a university includes a so-called studium
generate, or, in concrete words, the faculties of theology,
philosophy, law, and medicine, while the term faculty,
in its restricted and technical sense, means only one
of these. If we say studium generate we are aware that
this term was first used to signify a school which ad-
D
mitted students from all parts, and then was transferred
to the corporate body of teachers and students. To-day
a university in the full sense of the word means the total
of the four faculties mentioned above.1" The term " fac-
ulty " was originally used in the more general sense of sci-
ence or knowledge ; later it came to indicate some depart-
ment of study, as the faculty of arts,20 or theology, or
Canon Law. In this sense it is used in our text. Univer-
sities and faculties, then, which enjoy the privilege and
power of conferring degrees and are acknowledged
as Catholic universities or faculties, can be established
~
i» Sec Cath. Encyc, Vol. XV, 188, 1904. Vol. XIX, j. v. " Universities."
M. f. " Universities." p. 738.
20 See New International Encyc,
jle
I , Original from
UNIVERSITY OF WISCONSIN
CANON 1378 42r
only by the Holy See and must have their statutes ap-
proved by the S. C. of Seminaries and Universities.21
Can. 1377 is to be understood both of degrees conferred1
after examination and of so-called honoris causa degrees.
It would seem that the mere acknowledgment and ap-
proval of an institution of learning by the Holy See does
not convey the right of conferring academic degrees, but
this right must be specially mentioned in the petition and
the grant. If the Holy See grants- the honorary title of
doctor, this gives the recipient the same rights and priv-
ileges as the degrees conferred by a Catholic university
after examination.22
rights attached to the degree of doctor
Can. 1378
Ius est doctoribus rite creatis def erencii, extra sacras
functiones, annulum etiam cum gemma, et biretum
doctorale, firrno praeterea praescripto sacrorum can-
onum, qui in collatione quorundam officiorum et bene-
ficiorurn ecclesiasticorum statuunt cos, ceteris paribus,
iudicio Ordinarii, esse praeferendos, qui lauream vcl
liccntiam obtinuerint.
Duly created doctors are entitled to wear, outside o£
ecclesiastical functions, a ring studded with a gem and the
doctor's biretta, and the ruling of the sacred canons re-
mains effective which says that all other things being
equal, doctors and licentiates should be preferred in the
appointment to ecclesiastical offices and benefices.
The doctor's ring may be worn on the same finger on
which prelates wear theirs." The biretta here intended is
21 Pias X, "Sapienti Consilio." 23 S. Rit C.f May 23. 1846, ad %
June 29, 1908, { 1, n. 11. {Dec. Auth., n. 2907).
22 S, C. Stud., Dec. 19, 1903,
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
~
422 ADMINISTRATIVE LAW
the four-cornered ecclesiastical headgear,24 not the so-
called doctor's hat. These paraphernalia may not be
worn at ecclesiastical functions, especially not while say-
ing or singing Mass.26
By the way it may be stated that our text grants the
right to such distinctions to all duly created doctors,
whether of the secular or religious clergy.
catholic schools to be established
Can. 1379
§ i. Si scholae catholicae ad normam can. 1373 sive
elementariae sive mediae desint, curandum, praesertim
a locorum Ordinariis, ut condantur.
§ a. Itemquc si publicae studiorum Universitates
doctrina sensuque catholico imbutae non sint, optan-
dum ut in natione vel regione Universitas catholica
condatur.
§3. Fideles ne omittant adiutricem operam pro
viribus conferre in catholicas scholas condendas et
sustentandas.
§ i. Where there are no Catholic schools in the sense
of can. 1373, the church authorities, especially the local
Ordinary, should take care to establish such.
§ 2. Catholic universities should also be founded in
provinces or countries where the existing universities are
not imbued with Catholic teaching and feeling.
in
§ 3. The faithful should not omit to lend their aid, ac-
cording to their ability, in the establishment and support
of Catholic schools.
This has been a maxim of the Church ever since nniver-
<
Si S. Rit C, Dec. 7, 1844, ad i 3* S. kit. C, /. ft, and June 30,
06 n. 3877). 1883. ad VII (n. 3580).
( "annlp Original from
/^jOO^IL UNIVERSITY OF WISCONSIN
CANON 1 381
423
sities and schools have taken an unchristian turn, as es-
pecially the letters of the Holy See to the Irish hierarchy
emphasize.2*
clerics to pursue higher studies
Can. 1380
Optandum ut locorum Ordinarii, pro sua prudentia,
clericos, pictatc ct ingcnio praestantes, ad scholas mit-
tant alicuius Universitatis aut Facultatis ab Ecclesia
conditae vel approbatae, ut inibi studia praesertim
philosophiae, theologiae ac iuris canonici perficiant et
academicos gradus consequantur.
j
It is desirable that the local Ordinaries should, with pru-
dent judgment, send clerical students who excel in piety
and talent, to a university or faculty either founded or
approved by the Church, that they may there complete
their studies, especially in philosophy, theology, and Canon
Law, and obtain the academic degrees.
Honorius III already advised prelates and chapters to
send talented clerics to universities for at least five years,
during which teachers as well as students should be sup-
ported from ecclesiastical funds, I. e.t benefices, by author-
ity of the Apostolic See.
religious instruction under church authority
Can. 1381
§ 1. Religiosa iuventutis institutio in scholis qui-
buslibet auctoritati et inspectioni Ecclesiae subiicitur.
§ 2. Ordinariis locorum ius et offkium est vigilandi
ne in quibusvis scholis sui territorii quidquam contra
fid em vel bonos mores tradatur aut fiat.
20 Leo XIII, "Officio sanctissimo," Dec. 22, 18S7 et pluriei.
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
424 ADMINISTRATIVE LAW
§ 3. Eisdem similiter ius est approbandi religionis
magistros ct libros; iternque, religionis morumquc
causa, exigendi ut turn magistri turn libri removeantur.
§ 1. The religious instruction of the young in all
schools is subject to the authority and inspection of the
Church. This law, it would seem, should need no special
stressing, yet it is a sad fact that the Apostolic See had
more than once to complain of encroachments on its rights
by the civil authorities. Pius IX in his Syllabus pro-
scribed the proposition that the direction of the schools
in which the Christian youth are educated, should be en-
tirely withdrawn from the jurisdiction of ecclesiastical
authority and given to the civil government. This is a
confusion of the sphere of the two societies, Church and
State, since religious instruction belongs without a shadow
of doubt to the teaching office of the Church by divine
right."
§ 2 ascribes to the local Ordinaries the right and duty
to watch that in the schools of their territory nothing con-
trary to faith and morals be taught or done."
There may be a difficulty concerning national or gov-
ernment schools, such as existed in Ireland in the middle
of the last century,20 or as our American public schools,
which are under municipal or State authority, entirely
withdrawn from the influence of any religious denomina-
tion. Here much depends upon the local school board,
the directors, and the superintendents, but also upon legis-
lation. Catholic citizens have a powerful weapon in
their hands in their vote. The ecclesiastical authorities
should prudently draw attention to obnoxious teachers
IT S y llab m J Pit IX, nn. 43. 47 tine," July 14, 1864; cfr. Math. *8,
(Dmzineer, nn. I50J. 1505). '9 f«
nlbid., Pius IX, " Quum no* MS. C P. F., April 7. 1680
{Coll., n. 1 190).
GdbyG \\c
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 1381
425
-
and books. The pastors may counteract the bad influ-
ence by alertness and the intensified teaching of religion.
Cut all these remedies are insufficient and the necessity
of having Catholic schools of our own is imperative.
Of general interest is an instruction of the Holy Of-
fice so given Aug. 22, 1900, to the bishop of Jassy in Rou-
menia. There, on account of peculiar circumstances,
Catholic schools were permitted to receive schismatic pu-
pils, but only on several conditions, namely: (a) that no
danger to faith or morals arise from the practice to the
Catholic and schismatic students; (b) that Catholic school
boards shall not employ schismatic catechists, though they
may permit the schismatics to maintain such at their own
expense; (c) that neither Catholic nor schismatic cate-
chists teach the " interdenominational " catechism, i. c, a
doctrine which is acceptable to both; (d) that non-Cath-
olics must not be admitted as teachers of metaphysics,
ethics, and allied branches ; though they may be permitted
to teach languages, mathematics, and natural sciences un-
der the supervision of the Catholic schoolboard ; (e) that
no textbooks, even of profane sciences, written by non-
Catholics may be used unless they are known to contain
no error, or have been corrected. These rules, as stated,
concern only schools governed by Catholic school boards;
but they contain some hints which may be applied to our
public schools.
§ 3. The local Ordinaries also have the right to ap-
prove the teachers and test-books of religion and to de-
mand that teachers or books that offend against faith and
morals, be removed.
The underlying principle is always the same : the teach-
ing of religion belongs to the Church, and the State can-
not usurp it without infringing upon a divine right.
»0 Colt. P. F., n. 1093.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
~
426 ADMINISTRATIVE LAW
school inspection by the local ordinaries
Can. 1382
Ordinarii locorum sive ipsi per se sive per alios pos-
sunt quoque scholas quaslibet, oratoria, recreatoria,
patronatus, etc., in iis quae religiosam et moralem in-
stitutionem spectant, visi tare ; a qua visitatione quo-
rumlibet religiosorum scholae exemptae non sunt, nisi
agatur de scholis internis pro professis religionis ex-
emptae.
The local Ordinaries are entitled, either personally or
through a delegate, to inspect any school, oratory, asy-
lum,01 orphanage, etc., in all things concerning religious
and moral education. This right of inspection includes
the schools of religious with the sole exception of purely
internal schools intended for the members of exempt re-
ligious institutes.
The Council of Trent vindicated to the bishops the
right of visiting all hospitals, colleges, and religious or
charitable institutions, except those placed under royal
protection.82 No appeal was or is allowed from this
law,83 but our text, because it concerns schools only, re-
stricts this right of visitation to moral and religious in-
struction. Our canon covers all schools, elementary, sec-
ondary, academic and collegiate, all faculties and uni-
versities; none may claim exemption, for the text says:
" quaslibet scholas." The reason is because the bishops
are the judges in all matters of faith and morals. Theirs
is a doctrinal superintendence which they cannot divide
with the civil government-
si Recrratoria, from the Italian but it may also mean any institution
riereitori, means asylums for the of advowson.
poor or the aged; also conservatories as Sets. --. c. 8, De Ref.
for boys and girls; patronetut Is »b Bcned, XIV, " Ad nilitmntis,"
generally understood of orphanages, March 30, 1742, fi 31.
►ogle
/" * ^ v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1383
427
-
Universities which are under the immediate protec-
tion of the Holy See, cannot be canonically visited by
bishops, but only by the Sovereign Pontiff or his legiti-
mate representative.84
The domestic or internal schools of exempt religious,
established for the sole use of professed members, are not
subject to episcopal visitation ; but all other schools, as
well as orphanages,85 colleges and faculties conducted by
these religious, including the scholasticate, may be in-
spected by the local Ordinary in the points mentioned,
and none other."
Can. 1383
In religiosa alumnorum alicuius collegii institutione
Bervetur praescriptum can. 891.
In regard to the religious training of college students,
can. 1383 recalls the rule laid down in can. 891, namely,
that the rector should not habitually hear the confessions
of the students.
14 S. C. C, Auff. I, Sept. i, 18S8
A. S. S.> XI, 674 ff->.
sa S. C. EE. rt RR.. May 14. 187a
{Coll. P. F„ n. 1386).
so Leo XIII, " Rominoi Pontifi-
ctJ." Mar «. '881.
►ogle
Original from
UNIVERSITY OF WISCONSIN
TITLE XXIII
THE CENSORSHIP AND PROHIBITION OF
BOOKS
right of the church
Can. 1384
§ 1. Ecclesiae est ius exigendi ne libros, quos ipsa
iudicio suo antea non recognoverit, fideles edant, et a
quibusvis editos ex iusta causa prohibendi.
§ 2. Quae sub hoc titulo de libris praescribuntur,
publicationibus diariis, periodicis et aliis editis scriptis
quibuslibet applicentur, nisi aliud constet.
The Church has the right to demand that the faithful
shall not publish books which she has not previously ap-
proved by her judgment ; she also has the right to forbid
for a just reason books published by whomsoever.
The first refers to preventive censorship (praevia libro-
rum censura) which touches Catholics only; whereas the
second vindicates to the Church the right of prohibiting
any and all books which she considers objectionable. The
wording of the former clause is rather broad, for it would
seem to include all kinds of books, even such on mathe-
matics, agriculture, etc. However this law must be un-
derstood in the light of, and by comparison with, the can-
ons of chapter I, infra.
The text says that the Church has the right to censor
and forbid books. As to previous censorship there can
428
>Ie
Original from
UNIVERSITY OF WI5C0NSI
CANON 1384
429
be no doubt, because the faithful, as well as the matter
itself, are subject to the authority of the Church, to whom
all Catholics owe obedience in whatever refers to their
salvation. Nevertheless the censorship has often been
made the target of violent attacks. These attacks are
unfounded. Paternal as well as political authorities have
the natural right to ward off anything that may endanger
the moral and physical welfare of their subjects, and to
protect them against bad surroundings, company, litera-
ture, etc., in fact anything that is apt to cause insubordina-
tion, anarchy, or moral decay. The Church, being an
autonomous society, with subjects for whom she is re-
sponsible within her own sphere cannot be destitute of
the authority and power which enables her to keep her
children uncontaminated and to safeguard them against
the danger of perversion. Of all the dangers that imperil
man's salvation bad literature is perhaps the most destruc-
tive. Hence the right to control the reading of her chil-
dren cannot be denied the Church even from the purely
natural point of vantage. Historical facts amply confirm
the necessity of preventive censorship in Church and
State.1
The Church, by divine right, is the guardian and
teacher of faith and morals, the shepherd who must lead
his sheep upon wholesome pasture and point out the pois-
onous weeds that endanger their welfare. This office
requires repressive and preventive remedies which the
Church is certainly allowed to apply in teaching and
preserving the deposit of faith. One of these remedies
is the censorship of books.2 This has been always exer-
cised by the Church, not indeed to the same extent and in
l Cfr. the classical work of J.
Hilgers, S. J., Der Index dcr ver-
botenen Bucher, 1004.
2 Hilgers, /. c„ p. 15 ff-J ■« »lso
The Avt Afario, Notre Dame, lad.,
Jan. 31, 1920, pp. 148 ff.
►ogle
Original from
UNIVERSITY OF WI5CGNSI
430 ADMINISTRATIVE LAW
the same way, but in various ways and by different meth-
ods according to the exigencies of the times.8 The Apos-
tles frequently warned the faithful against the baneful
influence of a too intimate intercourse with the enemies
of Christianity either in word or writing.* The first ex-
press prohibition of a book is that of Arius' Thalia, which
was forbidden by the Council of Nicaea (325). Then fol-
lowed the lists, which look like incipient indices, of Popes
Innocent I and Gelasius I, in which, besides the authentic
books of the Old and New Testament, certain "apocry-
phal" books are enumerated.' Gregory the Great (590-
604), Martin I (649-654), and Zachary (741-752) drew
up new lists, and the practice was continued in the Mid-
dle Ages.
It goes without saying that the invention of printing
called for more extensive and severer measures. Inno-
cent VIII, Alexander VI, and Leo X commanded print-
ers to submit all books to be printed to the ecclesiastical
authorities for approval. An index of forbidden books in
the modern sense of the word was that of Paul IV, pub-
lished in 1559. It was followed by that of 1571, under
the pontificate of St. Pius V, and others, which later
were made superfluous by the more comprehensive index
issued in 1758. This, together with the Constitution
" Sollicita ac provida" of Benedict XIV (July 9, 1753)
remained in force with scarcely any modification until
Leo XIII issued his well-known Constitution " Offtciorum
ac tnuneritm," Jan. 25, 1897.
» Hilgcra, pp. 3 ft*.; Hurley, A siua' decree, ace in c. 3, Diat. 16;
Commentary on the Present Index the authenticity hai Riven rise to
Legislation, 1908. p. 33 ff. doubts (Zahn, Ctschichte des AVu-
4 I Tim. 6, 20; II Tim. a, 16; Acta tcslam. Kanons, 1890, II, i, 259 i).
19, 19. which, however, are not borne out
5 Innocent I, Ep. 6, ad Excep., c. by solid critical research.
7 (Migne P. U, 20, 501 f.); Gcla-
I Originalfrorn
' K H 7<lt UNIVERSITY OF WISCONSIN
CANON 1384
43*
This constitution, as such, is now superseded by the
Code insofar as it does not agree with the latter. At the
same time it is well to remember that the wording, and
sometimes even the substance, of the old law will assist
us in determining the nature and extension of the new
rules."
§ 2 extends the meaning of the term books so as to in-
clude newspapers and other periodical publications as well
as all other published writings, unless the contrary is
manifest.7
Strictly speaking a book is a volume8 consisting of a
number of sheets of paper, now-a-days generally printed,
and either bound or stitched together, which treats of one
subject in a more or less coherent and systematic man-
ner. It is generally held that a book must have some
bulk (aliqua moles), that is, it should have at least 160
pages. Our text as well as the Constitution of Leo XIII
draw a distinction between books and leaflets, etc. The
unitas objecti is an essential feature of a book. Maga-
zines, as a rule, do not treat of only one subject and hence,
even if they are bound, do not constitute a book in the
technical sense. But if a treatise is published in loose
numbers (fasciculi), so as to form one whole, the term
" book " applies to it. As to the manner of publication it
must be observed that now-a-days by book we generally
mean a printed volume, when we use the term without any
further attribute. Rut a book need not necessarily be
printed to be a book, else the manuscript treatises pub-
lished before 1600 could not have been prohibited as
books. Our text quite consistently applies the general
8 Hurley, I. c., p. 51.
7 This is a decidedly new regula-
tion for which Card. Gasparri could
glrc no quotation.
BNoldin, TheoL Moralis, Vol. II.
1914, n. 701, p. ;a6 f.
>ogle
Original fro ni
UNIVERSITY OF WISCONSIN
432
ADMINISTRATIVE LAW
—
prohibition to all writings, no matter how published, so
they be but published, i. e., made accessible to all. As
long as a manuscript or book remains the exclusive private
property of the author, it cannot be called editus. A
printer is not eo ipso a publisher (editor). An author
may write a book for his own pleasure and have it
printed ; as long as he keeps it entirely to himself, it is
not " published."
■
.'le
Original from
UNIVERSITY OF WISCONSIN
CHAPTER I
PREVIOUS CENSORSHIP
Previous censorship consists in the submission of a book
to the proper authority for inspection, examination, and
approval (or rejection). The law binds the author as
well as the publisher, placing both under the obligation
of submitting an intended publication to the proper au-
thority. If the imprimatur, or permission to have the
book published, is given, this means not an approval of
its contents, but only the judgment of the respective
authority that the book may, under present circumstances,
be read without detriment to faith or morals.1
Can. 1385
§ 1. Nisi censura ecclesiastica praeccsserit, nc edan-
tur etiam a laicis :
x.° Libri sacrarum Scripturarum vcl eorundcm ad-
notauones et commentaria ;
2.0 Libri qui divinas Scripturas, sacram theologiam,
historiam ecclesiasticam, ius canonicum, theologiam
naturalem, ethicen aliasve huiusmodi religiosas ac
morales disciplinas spectant; libri ac libelli prccum,
devotionis vel doctrinae institutionisque rcligiosae,
moralis, asceticae, mysticae aliique huiusmodi, quam-
vis ad fovendam pietatem conducere videantur; ac
generaliter scripta in quibus aliquid sit quod religionis
ac morum honestatis peculiariter intersit;
l Noldin, /. c, n. 708, p. 734.
433
oogle
Original fro m
UNIVERSITY OF WISCONSIN
434 ADMINISTRATIVE LAW
3.0 Imagines sacrae quovis modo imprimendae, sivc
preces adiunctas habeant, sive sine illis edantur.
§ 2. Licentiam edendi libros et imagines de quibus
in § i, dare potest vel loci Ordinarius proprius auctoris,
vel Ordinarius loci in quo libri vel imagines publici
iuris fiant, vel Ordinarius loci in quo imprimantur, ita
tamen ut, si quis ex iis Ordinariis licentiam denega-
verit, earn ab alio Ordinario petere auctor nequeat, nisi
eundem certiorem fecerit de denegata ab alio licentia.
§ 3. Religiosi vero licentiam quoque sui Superioris
maioris antea consequi debent.
This canon first lays down a general rule as to what
books must be submitted to ecclesiastical censorship, and
then designates the authority competent to grant the im-
primatur.
§ 1. The following books, even though published by
laymen, must be submitted to ecclesiastical censure :
i.° The Books of Holy Writ and annotations to and
commentaries on the same.
Hence the original text of each and every one of the
forty-five books of the Old Testament and the twenty-
eight books of the New Testament must be submitted to
ecclesiastical censorship. Also parts of the same (peri-
copes) and translations or versions, whether old or new.
Old versions are the Latin Vulgate as well as the Itala, the
Oriental versions of the Septuagint, the Syriac, Coptic,
and Armenian. New versions are those made into mod-
ern languages. These translations must be submitted,
even if only parts or pericopes are to be published, for
instance, the Epistles and Gospels for Sundays and holy
days. For the text simply says " libri sac rarum Scriptu-
rarum" and can. 1384, § 2 finds its application here.
Adnotationes are short explanations or glosses, either
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
CANON 1385
435
continuous or partial, such as were made on single words
between the lines or in the margin, and are now generally
placed at the foot of the page (foot-notes). It does not
matter whether these notes are printed separately from, or
together with, the text, whether they arc original or trans-
lated, as our canon simply says, vel. Nor are foot-notes
on the pericopes exempt from this law.
Commentaries are treatises in the form of annotations
or explanations of the books of the Old and New Testa-
ment, altogether or severally. What was said concerning
annotations also holds with regard to commentaries.
2.0 The second paragraph of § 1 mentions three classes
of books as subject to ecclesiastical censorship, namely,
scientific, devotional, and general, especially,
(a) Books treating of Holy Scripture, sacred theology,
Church history, Canon Law, theodicy, ethics, and other
religious and moral disciplines.
" Books on Holy Scripture " here means the treatises
called introductions, not works of exegesis proper, for the
latter, being in the nature of a commentary, falls under
no. 1. Introduction includes hermeneutics and " higher
criticism," so-called.2
"Sacred theology " embraces treatises on dogmatic as
well as moral theology, either single tracts, or the whole,
written in any language, and published in any form.
" Church history" which is the scientific knowledge of
the internal and external development of the Society
founded by Jesus Christ, may be written as chronicles or
in the form of general accounts, biographies, monographs,
etc. It is true that the Church is distinct from the indi-
viduals that compose it,3 but if any individual, for instance,
St. Augustine,4 is treated as the representative of a period
* Pius X, " Limtntabili," July 4,
1904, prop, |,
* Hurley, /. c, p. 209.
* See Von Hertlins'a Augustinu*
jk
Original from
UNIVERSITY OF WI5C0NSI
43^
ADMINISTRATIVE LAW
or school of ihought, the biography becomes part and
parcel of ecclesiastical history. Therefore such a book
must be submitted to censorship. The law does not, how-
ever, apply to purely secular or political history. The
scope, then, or purpose of a book marks the dividing
line.
As to Canon Law, we all know that this is a distinctly
ecclesiastical discipline.
Natural Theology, or Theodicy is that part of philoso-
phy which treats of God and His relations to His crea-
tures from the standpoint of reason unaided by Revela-
tion.
Ethics or moral philosophy, has for its object the moral
rectitude of human acts in accordance with the ultimate
principles of reason. To this discipline belong books on
sociology, unless they are written from the merely eco-
nomical or political viewpoint.
It would be difficult to explain the phrase, " other such
religious or moral disciplines," since the sciences expressly
mentioned seem to exhaust the subject. Treatises on
Spiritism, hypnotism* astrology (formerly also alchemy)
must find a place here because they usually touch religion
and morals.
(b) Liable to censorship are furthermore: large and
small prayer-books and devotional, catechetical, moral,
ascetical, mystical, and tlie like books and pamplets, even
though they seem to foster piety. To this class belong
Bible histories, missals with vernacular translation, cate-
chisms, lives of Saints, the Imitation of Christ, and similar
books.5 Of a mystic character are H The City of God M
{" JVeltgcschichte in Karokterbitd-
trn ") Maim, 190a, without episco-
pal imprimatur.
6 S. C. P. F., Jan. 3, 1777 (-Colt.
n. $10); S. Rit C, Auy. 4. 1877
(Dee. Auih., n. 3427); also the
translations of the Officittm Panum
B. M. V.; S. Rit. C, April 34, 1896.
ad 1 (n. 3S37).
GoogI
Original fro m
UNIVERSITY OF WISCONSIN
CANON 1385
437
by Mary of Agreda, the writings of Anne Catherine
Emmerich, St. Catharine of Genoa, and others. Devotion
is not always piety and devotional writings require par-
ticular vigilance. We may also place in this class all
prophesies, private revelations, visions, etc., as well as
new devotions of every kind.
(c) The law finally subjects to ecclesiastical censorship
"all writings which contain anything that particularly
concerns religion and morals." No distinction is made
between books, but all are comprised that deal in any way
with religion or morality. The phrase " pcculiariter in-
tersit" must be referred to the manner in which the sub-
ject is treated. " Pcculiariter " is opposed to " obiter " or
" perfunciorie" The manner of treatment must be
measured by the length of the article or treatise. A long
treatise would not savor peculiarly of religion or moral-
ity, if it contained only one or the other sentence bearing
on those subjects.
A question has been raised regarding so-called temper-
ance leaflets? We will state our opinion fairly and
squarely. If these leaflets advocate absolute prohibition,
they should be forbidden, for prohibition is opposed to
the natural law and clearly touches ethics. If they are
merely intended to promote temperance, such leaflets
come under the category of moral writings, because tem-
perance is one of the four cardinal virtues which in the
natural order belong to ethics, and in the supernatural
order, to moral theology. From every viewpoint, there-
fore, these leaflets arc subject to the censorship of the
Church.
3.0 Sacred images, no matter how printed, and whether
with or without prayers, fall under ecclesiastical censor-
O Ctr. Hurley, /. c.# p. J14 *•
>ogle
Original from
UNIVERSITY OF WISCONSIN
438 ADMINISTRATIVE LAW
•
_
ship. It is evident that only stamped or printed images
are intended here, because the text refers only to books
or things published in the form of printed matter. But
of these all kinds, new and old,7 are included, — engrav-
ings, photographs, chromos, lithographs, etc., etc. Not
included are oil or water-colors and statues. If an image
belong to the class of printed matter, it is immaterial how
customary or unusual it be; for here not the insolita
imago of can. 1279 is intended, but the image as such,
provided, of course, it be sacred. Sacred images are all
representations of the Blessed Trinity, of our Lord Jesus
Christ, of the Blessed Virgin, of the Angels, Saints, and
Blessed. Also images which represent a religious mys-
tery, or a sacred scene, or groups of biblical events, or
emblems representative of mysteries. The text says it
matters not whether such images are printed with or
without prayers. If a prayer is added, either at the bot-
tom or on the back, the picture also falls under no. 2 of
our canon.
§ 2 and § 3. The permission to publish books and
images mentioned in § 1 may be granted by the local Ordi-
nary of the author, or by the local Ordinary of the place
of publication, or, finally, by the local Ordinary of the
place where the books, etc., are printed. However, if any
one of these Ordinaries refuses the imprimatur, the au-
thor is not allowed to ask it of another, unless the latter
has been informed of the refusal.
Religious must obtain the permission of their superiors
before applying for the episcopal imprimatur.
7 The text does not contain the {Comm., n. 20), no longer holds,
adjective " novae " fuun<! in the Not included arc medals, because
" Offidorum ac munerum," n. 15; these are not printed, hut struck;
hence Yermcersch's view thnt new we Vcrmecrscb, f. c.
designs only must he submitted
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1385
439
Our text is wider than that of the Leonine constitution 8
in admitting three Ordinaries as competent to give the
imprimatur. It is also more liberal in regard to Bible
editions, as will be seen under can. 1391. The local Or-
dinary of course is the bishop or the vicar-general, or
whoever goes by that name. Since superiors of exempt
religious are not local Ordinaries in the meaning of the
Code, it would be evident, even if it were not mentioned
i° § 3» that such religious are not exempt from the obliga-
tion of asking the imprimatur of the diocesan bishop;
but they may do so through their publisher or printer.
If the local Ordinary himself wishes to publish a book,
he needs no imprimatur, even though the book were
printed and published outside of his diocese.9 The rea-
son is that the author's Ordinary may give the imprimatur,
who, in our case, is the author himself.
Which of the three Ordinaries mentioned should be
asked to give the imprimatur is left to the judgment of
the author. But in order to prevent deception and to
uphold ecclesiastical authority, it is required that in case
one of the three Ordinaries has refused the imprimatur,
this fact must be stated to the other who is asked for
the imprimatur. The latter will probably demand the
reasons for the refusal either from the refusing Ordinary
or from the author.
Religious, exempt as well as non-exempt, also need the
permission of their superiors, who ought to subject every
book that is to be published to an examination by com-
petent scholars.10
8 " OfiicioTum ac munervm," nn.
7. 35.
9 Formerly, aa Noldin states (1- c,
n. 710), an Ordinary needed the
imprimatur of another Ordinary if
his book was published outside his
own diocese.
10 Ttid,, Sess. 4. De EdUtone tt
I'm SS. Libroram; the BUperiors
may abide by the verdict of the cen-
sors.
►ogle
Original from
UNIVERSITY OF WI5C0NSI
-
440 ADMINISTRATIVE LAW
Whether rule 37 of the " Officiorum ac munerum "
still holds, may well be doubted. This rule prescribed that
if an author residing in Rome wished to have a book
printed elsewhere than in the City, he needed only the
approval of the Cardinal Vicar and the Master of the
Sacred Palace. This rule rather restricts liberty and is
not in accord with § 2 of can. 1385. Therefore we hardly
believe that one would be obliged to abide by it, unless a
local custom or written particular law would be super-
added to said § 2.
obligations of clerics and laymen
Can. 1386
§ 1. Vetantur clerici saeculares sine consensu suo-
rurn Ordinariorum, religiosi vero sine licentia sui Su-
perioris maioris et Ordinarii loci, libros quoque, qui de
rebus profanis tractent, edere, et in diariis, foliis vel
libellis periodicis scribere vel eadem moderari.
§ 2. In diariis vero, foliis vel libellis periodicis qui
religionem catholicam aut bonos mores impetere so-
lent, nee laici catholici quidpiam conscribant, nisi iusta
ac rationabili causa suadente, ab Ordinario loci pro-
bata.
«?
§ i. The secular clergy without the consent of their
Ordinary, and religious without the permission of their
higher superior and of the local Ordinary, are forbidden
to publish books on secular subjects and to write for
newspapers or other periodicals, publications, or to act
as editors of such. The consent of the Ordinary is here
clearly distinct from censorship proper, which requires a
scientific examination, whereas the consent only means
a judgment connected with the manifestation of an act
jte
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1386
441
of the will. However this does not take away from the
bishop the right of demanding specimen copies of a pub-
lication or the title thereof; nor does it prevent the bishop
from refusing his consent if he thinks the author or
editor incapable of treating the subject correctly and
creditably.
This consent is required even for literary products of
a purely worldly or technical character, no science or
topic being excepted.11 The reason is given in the above-
mentioned Constitution of Leo XIII, to wit, "to give an
example of ready obedience." Prompt submission is
also required in two other cases ; viz. : when clerics wish
to contribute to periodic publications or if they desire to
act as managers or editors of such publications as diaria,
folia, libelli periodiei. Diaria are newspapers, daily,
weekly, or biweekly. Folia are publications published
more or less irregularly, of undetermined size or number
of pages, be they leaflets or brochures. Libelli periodiei
are quarterly, monthly, fortnightly, weekly, etc., maga-
zines or reviews.
To write for such publications, therefore, the secular
clergy need the permission of the bishop to whom they
are subject, regardless of where the paper or magazine
is printed or published. For the text simply says, " su-
orum" which refers to the clergy, not to the publication.
If we say, *4 to whom they are subject/' we mean habitu-
ally or legally, by virtue of incardination. Therefore a
clergyman on his vacation, who wishes to contribute to a
periodical publication, must obtain permission from his
own bishop, not from the Ordinary in whose diocese he
is sojourning.13
11 S. C. pro Ncffot. Eccl. Ex-
traord., June 27, 1902, n. 3 {Anal.
EccL, X, 73).
12 The local Ordinary of rcliRioua
it the bishop ia whose diocese their
house ia located; but we believe that
jle
Original fro m
UNIVERSITY OF WISCONSIN
442 ADMINISTRATIVE LAW
The question naturally arises whether clergymen and re-
ligious need the simple or double permission for each and
every article they contribute to any periodic publication.
From former legislation it would seem that regular cor-
respondence or contributions are intended. Such at least
is the tenor of the " Sacrorum Avtistitutn," of Sept. I,
1910, from which our text is evidently taken: "Ad
saccrdotes quod attinet, qui correspondentiutn vet col-
laboratorum nomine vulgo veniunt, etc." We would not
press the term " scriberc" in our text, though this, too,
would seem to involve habitual writing. Hence we hardly
believe that a brief occasional article would need episco-
pal consent. To say that the publication of a notice of a
church festival, or parish event, or funeral required
the special consent of the Ordinary or religious superior,
would render the law ridiculous. On the other hand, a
treatise or an elaborate article on any important subject,
especially if it touches faith and morals, or ecclesiastical
discipline, no doubt falls under the law. Also any im-
portant manuscript which religious would like to publish.
Nor may religious with either simple or solemn vows pub-
lish their writings anonymously or under an assumed
name, even with the local Ordinary's permission, if their
superior has refused to give his imprimatur.13
It may be added that fctnale religious, too, must abide
by this law.
" Eadem modcrari," to direct or manage periodical pub-
lications, also requires a double permission for religious,
and the permission of the ordinary for secular clerics.
This prohibition concerns the management or directorship
of all newspapers, pamphlets, and periodicals without cx-
■"■
the local Ordinary of any diocese in especially in the case of exempt re-
which a religious lives for some time, Jigious.
may jive the required permiisioa, 1* Hurler, L c, p. 3*8.
* I Inr.altf> Original from
,00cVC UNIVERSITY OF WISCONSIN
CANON 1386
443
ception. The canon here is somewhat stricter, at least
in its wording, than the old law, but more logical and
consistent.
Are college papers included? The text does not make
a distinction, and hence they, too, need the permission of
the local Ordinary in whose diocese the board of managers
live, and of the religious superior, if religious are on the
board of directors. But if lay students constitute the
board, they need no permission from the local Ordinary.
Female religious, however, do, no matter how pious the
title of their magazine may sound.
What if the Ordinary refuses to consent to the publica-
tion of a book treating of secular matters only? In that
case the author would do well to abide by the bishop's
decision, provided there is no reason to assume personal
spite. He may, however, demand the reason of the re-
fusal. For although the Holy Office does not need to
state its reasons, this prerogative cannot be extended to
the bishops, and the S. Congregation of the Index de-
cided that bishops must give their reasons for refusing
the imprimatur in case a book is susceptible to correc-
tion.14
The author has another expedient, namely that offered
in can. 1385, § 2 ; which allows him to seek another pub-
lisher or printer. In doing so an author would only be
claiming a natural right.
§ 2. Not even Catholic laymen — much less clergymen
and religious — may write for newspapers, pamphlets or
other periodical publications which are accustomed to at-
o
14 S. C. Ind., Sept. 3, 1898,
quoted by Hurley, who, in a circuit-
ous way, concludes that the bialiop is
not bound to state the reasons (/. c,
p. joo, 234 f.) ; if lie ia bound to
give his reasons in matters of faith
and morals, he is surely also obliged
1o state his reasons for refusing to
permit the publication of books of a
profane nature; the contrary opinion
is frivolous and unworthy of the
episcopal office.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
444 ADMINISTRATIVE LAW
lack the Catholic faith or good morals. An exception to
this rule may be made only for a just and valid reason,
acknowledged to be such by the local Ordinary.
The publications to which even Catholic laymen should
not contribute by way of correspondence or collaboration
have been named above. Here a special class is singled
out which is distinguished by its wicked purpose, i. e.,
those which habitually attack the Catholic faith or good
morals. Is our so-called yellow press included in this
class of publications? It would be difficult to give a
positive answer to this question. For we cannot say that
they make it a practice to attack the Catholic faith, though,
on the other hand, their scandalous reports on suicides,
divorces, etc., are anything but favorable to good morals.
Yet as these reports are not strictly attacks on morality,
the solution depends on the general tendency of these
publications. We think it must be admitted that regular
contributions from Catholic pens might promote the sale
of an objectionable paper and thereby further religious
indifferentism. The law expressly permits extraordinary
or occasional contributions for solid reasons. Thus, for
instance, if a prelate or prominent priest is interviewed
on an important public question, it might be permissible,
nay even desirable, that he explain the Catholic position.
Again a correction, or the defence of Catholic teaching
against an attack might prove useful for the reason that
it would reach parties which a Catholic paper could not
reach.
VARIOUS EXCEPTIONS
"■
Can. 1387
Quae ad causas beatiBcationum et canonizationum
Servorum Dei quoquo modo pertinent, sine licentia
Sacrorum Rituum Congregationis edi nequeunt
oogle
C* -» v J„ Original fro m
UNIVERSITY OF WISCONSIN
CANON 1388-90
445
Can. 1388
§ 1. Indulgentiarum libri omnes, summaria, Hbelli,
folia, etc., in quibus earum concessiones continentur,
ne cdantur sine licentia Ordinarii loci.
§ a. Requiritur vero expressa licentia Scdis Apos-
tolicae ut typis edere liceat, quovis idiomate, turn col-
lectionem authenticam precum piorumque operum qui-
bus Sedes Apostolica indulgentias annexuit, turn elen-
chum indulgentiarum apostolicarum, turn summarium
indulgentiarum vel antea collectum, sed nunquam ap-
probatum. vel nunc primum ex diversis concessionibus
colligendum.
Can. 1389
Collectiones decretorum Romanarum Congrcga-
tionum rursus edi nequeunt, nisi impetrata prius licen-
tia et servatis conditionibus a Moderatoribus unius-
cuiusque Congregationis praescriptis.
Can. 1390
In edendis libris liturgicis eorumque partibus,
itemque litaniis a Sancta Sede approbatis, debet de
concordantia cum editionibus approbatis constare ex
attestatione Ordinarii loci in quo imprimuntur aut
publici iuris fiunt.
Matters pertaining to the canonization and beatification
of servants of God may not be published without the
permission of the S. Congregation of Rites. Urban VIII
already ordered that the lives, deeds, and miracles of the
venerable servants of God should not be published with-
out the approval of the Ordinary, who had to report each
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
~
446 ADMINISTRATIVE LAW
case to the Apostolic See, i.e., the S. Congregation of
Rites, in order that frauds, mistakes, and novelties might
be avoided.15
Can. 1388 refers to books, summaries, booklets, leaflets,
etc., containing grants of indulgences. These may not
be published without the permission of the local Ordinary.
The express permission of the Holy See is required for
publishing, in any language, authentic collections of
prayers and good works enriched with indulgences by the
Apostolic See. The same express permission is required
for publishing lists of papal indulgences, and summaries
of indulgences, either already collected but not yet ap-
proved, or to be made from various grants. Concerning
this we refer to can. 919, § 2.
Can. 1389 demands the permission of the respective
officials for the republication of collections of the various
Roman Congregations. If such permission is granted,
the conditions laid down by the heads of the respective
congregations must be faithfully complied with. What
those conditions are is not explicitly stated. One of them
is that the original text must be reproduced ad literatn.
Another one undoubtedly will be that a copy of the re-
print shall be forwarded to the Cardinal Prefect or Sec-
retary of the respective Congregation, provided permission
for republication is given.
Notice the phrase, " rursus edi"; it supposes that a
collection has already been made and published, as those
of the S. Rit. C. and the Propaganda.
Can. 1300 concerns the publication of liturgical books,
or parts thereof, and litanies approved by the Holy See.
Reprints of these must agree with the approved text, and
the Ordinary of the place where they are printed or pub-
10" (-.-,, ■•■:■,! Hicrusalcm," July 5.1634. I 1 i S. Rit. C, July |f, i8ai
(d. >6i7).
jle
j , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1391
447
lished must testify to such conformity. Of this enough
has been said under canons 1257, 1259, and 1264.
bible versions
Can, 1391
Versiones sacrarum Scripturarurn in linguam verna-
culam typis imprimi nequeunt, nisi sint a Sede Apos-
tolica probatae, aut nisi edantur sub vigilantia Episco-
porum et cum adnotationibus praecipue excerptis ex
Sanctis Ecclesiae Patribus atque ex doctis catholicis-
que scriptoribus.
Translations of Holy Scripture into the vernacular
may not be printed, unless they are approved by the Apos-
tolic See or published under the supervision of the
bishops, and are provided with notes taken chiefly from
the Holy Fathers and learned and orthodox writers.
By Holy Scripture here is understood the text of the
Old and New Testament. The plural seems to indicate
that parts of Holy Writ are also intended. Hence even
a portion of the Old Testament, say the Law, the Prophets
and Ketubim, separately taken, fall under this rule; also
the Gospels and the Epistles of St. Paul, when translated
into the vernacular. Old versions, like the Syriac and
Latin, which cannot be called vernacular in the proper
sense, are excluded. But Arabic, English, French, Ger-
man, Indian, Italian, Spanish, and the modern Slavic lan-
guages, also Chinese and Japanese, are vernacular, and
translations of the Bible or any part thereof into any of
these languages fall under the present canon, no matter
whether the translators are Catholics or non-Catholics.
The approving authority is twofold : the Apostolic See
and the bishop, the latter under certain conditions only.
*Ie
Original from
UM1VERSITY OF Vi-'ISCONSI
448
ADMINISTRATIVE LAW
(a) The Holy See may approve any versions with or
without notes ; it may even — which is, however, not
likely to occur — approve translations made by non-
Catholics ;
(b) The bishop may approve any translation made un-
der his supervision. " yigilantia episcoporttm" here has
a special meaning, namely, that the translation must be
carefully compared with the original text approved by
the Church, or, at least, must substantially agree with a
translation already approved.
Of course, a difficulty may arise from the fact that,
with the exception of the Latin Vulgate, there is no
approved original text, — the Greek text, and much
more so the Hebrew-Massoretic text, being subject to
many variants. The episcopal censor, therefore, had
better keep to the Latin text, but he may make use
of the original in doubtful cases. The translator as
well as the censor must keep in mind the following
canon, 1392.
But supervision is not enough; notes are also required.
These notes should be taken from two sources, the writ-
ings of the Fathers and learned Catholic authors. The
period of the "Fathers," as is generally assumed, ends
with the death of Isidore of Seville, a. d. 636. After that
time we speak of Catholic writers. The prescribed anno-
tations may be taken from the original works of the
" Fathers " or from the current " Catenae." so they be but
genuine. The Catholic authors here intended are not
only those of the Scholastic period, but also of modern
times, provided only they be really Catholic and learned.
Purely mystic or devotional writings, where the allegorical
sense of the text is unduly emphasized, should be entirely
discarded, or at least used sparingly.
Our text employs a term which is not to be found in
>gle
Original from
UNIVERSITY OF WISCONSIN
CANON 1392
449
Pope Leo's Constitution; it is the word praecipue, signi-
fying that the notes should be taken chiefly from Catholic
authors. This seems to imply that non-Catholic writers
need not be entirely neglected. The historical and
archaeological explanations and the critical readings of
non-Catholic scholars may therefore find a place in the
translations approved by the bishops.
when a new approbation is demanded
Can. 1392
§ 1. Approbatio textus originalis alicuius operis,
neque eiusdem in aliam linguam translationibus neque
aliis editionibus sufTragatur; quare et translation's et
novae editioncs operis approbati nova approbatione
communiri debent.
§ a. Excerpta e periodicis capita seorsim edita
novae editiones non censentur nee proinde nova appro-
batione indigent.
§ 1. The approbation of the original text of a work
does not imply approbation of translations into other
languages or of new editions ; therefore translations as
•well as new editions of a work already approved need a
new approbation. Thus, for instance, a translation of
the Little Office of the B. M. V. into the vernacular needs
a new approbation every time it is republished. The Or-
dinary may grant this approbation if the text agrees with
that approved by the Church, which agreement is left to
the conscientious judgment of the bishop ia to determine.
The same rule applies to translations of the Roman
Missal."
le S. Kit. C» Sept. 4. 187s (n.
3373)-
IT S. Rit. C, Auj. 4, 1877 (n.
34^7).
>Ie
Original fro ni
UNIVERSITY OF WISCONSI
450 ADMINISTRATIVE LAW
One remark must, however, be added. Our text speaks
of editions and translations. From this it must be con-
eluded that mere reprints, either phototyped or lineotyped,
accurately reproduced, require no new approbation. For
it is evident that the purpose of the law is to prevent
fraud or corruption of the original text.
§ 2. Extracts or excerpts from periodicals, published
separately, are not new editions and therefore require no
new approbation.18 If these so-called reprints (in French
tirages a part) cover a series of articles and develop
into a book and are published in book form, do they re-
quire ecclesiastical approbation? We believe with Nol-
din 10 that they do, for the reason that the text mentions
only ercerpta capita, single extracts or chapters. Besides,
there is always danger that such a reprinted book may
contain substantial changes from the original text as pub-
lished in the periodical.
Reprints of single articles, or, if the same subject was
treated in two or three issues of a periodical, of several
articles forming one chapter or treatise, need no new
approbation.
£
diocesan censors
Can. 1393
§ i. In universis Curiis episcopalibus censorcs ex
officio adsint, qui edenda cognoscant.
§ 2. Examinatores in suo obeundo officio, omni per-
sonarum acceptione deposita, tantummodo prae oculis
habeant Ecclcsiae dogmata et communcm catholico-
rum doctrinam quae Conciliorum generalium decretis
aut Sedis Apostolicae constitutionibus seu praescri-
18 S. C. Ind.. May 23, 1898, ad 3 19 Dt Pracceptis, 19M. ed- II, n.
(Coll. P. F., n. 1000). yo6, p. 732 t.
5 'rwwiltf Original from
■OOgie UNIVERSITY OF WISCONSIN
CANON 1393
45 1
ptionibus atque probatorum doctorum consensu conti-
netur.
§ 3. Censores ex utroque clero eligantur aetate, eru-
ditione, prudentia commendati, qui in doctrinis pro
bandis improbandisque medio tutoque itinere eant.
§ 4. Censor scntentiam scripto dare debet. Quae si
faverit, Ordinarius potestatem edendi faciat, cui tamen
praeponatur censoris iudicium. inscripto eius nomine.
Extraordinariis tantum in adiunctis ac perquam raro,
prudent! Ordinarii arbitrio, censoris mentio omitti po-
tent.
§ 5. Auctoribus censoris nomen pateat nunquam,
antequam hie faventem sententiam ediderit.
These rules are chiefly taken from the Motu proprio
of Pius X, " Sacrorum Antistitum," of Sept. I, 1910,
which was directed against Modernism.20 They are :
§ 1. Every diocese must have officially appointed cen-
sors, for the examination of writings that are to be pub-
lished, Ex officio means that there should be a regular
censor, not merely one chosen for an emergency. The
diocesan censors should be mentioned in the Catholic
Directory.
§ 2. The examiners in discharging their office, should
set aside all human respect and guide themselves solely
by the dogmatic teaching of the Church as contained in
the decrees of the general councils, in papal consiitutions
and decisions, and in the consent of approved doctors.
This does not mean, however, that any opinion or system
tolerated by the Church is to be condemned if it does not
fit in with the views of the censor.
20 Of course, these rules arc not
entirely new, having been to a great
extent, embodied in former docu-
ments like that of Clement VIII oa
the Index, Benedict XIV, " Sollicita
ac provida," July 8, 1753. etc., see
Hilgert, /. e., p. 13, p. 59 f.; p. 535
ff.; A. Ap. 5., II, 661.
ogle
Original from
UNIVERSITY OF WISCONSIN
452 ADMINISTRATIVE LAW
§ 3. The censors should be taken from both the secular
and the regular clergy, and be men of mature age, dis-
tinguished by learning and prudence, who can safely keep
the golden mean in approving or rejecting doctrines.
§ 4. The censor must give his verdict in writing. If
the verdict is favorable, the Ordinary shall give his per-
mission to publish (i.e., the imprimatur), which must be
preceded by the censor's verdict (the " Niliil obstat")
and his signature. Only in very rare cases and under
extraordinary circumstances, if the Ordinary deems it
prudent, may the name of the censor be omitted.
§ 5. The censor's name must not be made known to
authors before he has given a favorable opinion. This
rule clearly presupposes that more than one censor is
appointed in each diocese, as § 1 insinuates by using
the plural number (censor es).
We may quote here a remark taken from the " So-
crorum antistitum" namely, that the title of censor has
no juridical or canonical value and contributes no weight
to the private opinion of the official entrusted with this
duty. Therefore if the censor makes a mistake the
author has no guaranty in the "Nihil obstat" that his
book will not be put on the index.
the imprimatur must be given in writing
Can. 1394
r-j
§ i. Licentia, qua Ordinarius potestatem edendi fa-
cit, in scriptis concedatur, in principio aut in fine libri,
folii vel imaginis imprimenda, expresso nomine conce-
dentis itemque loco et tempore concessionis.
§ a. Si vero licentia deneganda videatur, roganti
auctori, nisi gravis causa aliud exigat, rationes indi-
centur.
ogle
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
*
D
-
CANON 1394
453
§ 1. The imprimatur should be given in writing and
be placed either in the beginning or at the end of the
book, leaflet or image, together with the name of the
grantor, and the place and date of the grant. It is
strongly advisable to print the year of publication on
the title page, — a practice which is neglected by some,
especially English, publishers.
§ 2. If the imprimatur is denied, the reasons should
be given to the author upon demand, unless a weighty
motive counsels the contrary. (See can. 1386.)
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
~
CHAPTER II
THE PROHIBITION OF BOOKS
Whilst previous censorship chiefly affects authors, and
the faithful at large only indirectly, this second chapter is
directly intended to safeguard the faith and morals of all
Christians. We purposely say all Christians, not merely
Catholics, because morality is something universal and
common to all who believe in Christ. Of course, the
legislator does not concern himself with those outside the
Church ; but Christians of all denominations ought to be
grateful for this directive norm, which, as law, binds all
Catholics. The censorship with which wc now deal is
called repressiva, because it aims at suppressing bad litera-
ture.1
a
a
a
WHO HAS THE POWER TO FORBID BOOKS
E
Can. 1395
§ i. Ius et officium libros ex iusta causa prohibendi
compctit non solum supremae auctoritati ecclcsiasticae
pro universa Ecclesia, sed pro suis subditis Conciliis
quoque particularibus et locorum Ordinariis.
§ 2. Ab hac prohibitione datur ad Sanctam Sedem
recursus, non tamen in suspensive
3. Etiam Abbas monasterii sui iuris et supremns
religionis clericalis exemptae Moderator, cum suo Ca-
pitulo vel Consilio, potest libros ex iusta causa suis
IS. C. Ini. Aur- 34. 1864 {Coll P. F.. n. 1164).
454
.'le
Y ,|rt Original from
UNIVERSITY OF WISCONSIN
CANON 1395 4S5
subditis prohibere ; idemque, si periculum sit in mora,
possunt alii Superiores maiores cum proprio Consilio,
ea tamcn lege ut rem quantocius deferant ad supre-
mum Moderatorem.
§ 1. The right and duty to forbid books for a just
cause belongs to the supreme ecclesiastical authority for
the whole Church, and to particular councils and local
Ordinaries for their respective subjects.
§ 2. Recourse from this prohibition may be had to the
Apostolic See, but only in dcvolutivo.
The act of forbidding books is an exercise of jurisdic-
tion, part of which is the teaching office of the Church,
which belongs to those who are judges in matters of
faith and morals. The supreme authority of the Church
exercises its influence over the entire Church, whilst the
bishops exercise theirs only over those who are subject to
them. Therefore the text properly says ; " pro sxtis sub-
ditis." From this we naturally conclude that exempt re-
ligious are not juridically bound to obey the episcopal
injunction, that is to say, no penalty can be pronounced
against them for not observing the Ordinary's edict.
Morally they may be obliged to abide by the bishop's order
because of scandal or the danger of weakening the epis-
copal authority, especially among laymen.2
If a particular council forbids a book, are the exempt
religious living within its jurisdiction obliged to heed that
prohibition? If the council is a diocesan synod, the ex-
empt religious are not obliged to obey, since the sole legis-
lator is the local Ordinary, to whom they are not subject.
If, however, a provincial or plenary council is understood,
its decrees, we believe, are binding on the whole territory,
iThua Vcrrncerach, D* Prohibi- (ed. 1); Noldin, Di PraterpUt, ed.
tiont et Centura Librorum, n. la 11, n. 704. p. 729.
.'Ie
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
456 ADMINISTRATIVE LAW
especially if they are approved by Rome, and therefore
also oblige exempt religious.8
§ 2 admits recourse, not appeal, to the Holy See, but
such recourse has no suspensive character. Therefore
the prohibition remains in force until the Apostolic See
decides otherwise.
§ 3. Abbots of autonomous monasteries and the su-
periors general of exempt clerical institutes also may, for
just reasons, forbid books to their subjects ; but they must
proceed together with their chapter or consultors. There
is a juridical difficulty in this clause, because, as said
above, the act of forbidding books rests on jurisdiction.
This text is entirely new, and seems strange, as these
superiors are not ordinarily considered to be judges in
matters of faith.' Yet it is only the logical consequence
of § i, because the local Ordinaries have no jurisdiction
over exempt religious. Therefore the reason advanced by
the S. C. of the Index for extending the authority to
forbid books to local Ordinaries and delegates of the
Apostolic See — which extension is now antiquated —
may be here applied. The " pravorum librorum collu-
vies" the flood of perverse literature which is daily in-
creasing in volume, clearly made it imperative to act
promptly and efficaciously for the protection of the faith-
ful, and this could be accomplished only by instructing
the domestic authorities to stop the danger at the very be-
ginning and, as it were, on the spot.0
Whether the chapter or the counsellors have a decisive,
or merely an advisory vote, is not explicitly stated in the
..-.
a This seems to follow from can. mentions territorial, not personal,
291, fi 3, became luch decreci would obligation,
affect also religious, and we hardly * Can. 501. 9 *■
believe that exemption could be 5 S. C. Ind-. Aug. 24, 1S64 (Coll.
claimed in this case, although we P. F., n. 1261).
readily graut that can. 391, 1 J only
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 1395 457
text. This would seem to be a matter for the Constitu-
D
tions to decide. To us it appears that a decisive vote is
intended, to be given at the regular meeting, for the
matter is of great importance. If there is a regular chap-
ter, such as an independent monastery generally has, it is
not enough that the abbot call the consultors; he must
convene the chapter. Capitulum refers to the abbot of an
autonomous monastery, consilium to the superior general.
The text continues: "If delay should be dangerous,
the other higher superiors may, with the cooperation of
their counsellors, also forbid books, but they are obliged
to report the matter immediately to the superior gen-
eral." The alii superiores maiorcs here intended are the
provincials, etc., as explained under can. 488, n. 8. How-
ever, note the difference between the first and the second
clause. The sentence of the abbots and superiors general
is final and no further report is required, whereas that
of inferior superiors is only provisional and requires the
sanction of the superior general.
The reader may perhaps inquire whether the second
clause applies to female congregations. No, because they
lack a fundamental condition, viz., jurisdiction. But we
do not mean to say that a superioress would not be entitled
to forbid a book to one of her religious, for this would
be an exercise of domestic authority. But she could not
forbid it to all as dangerous to faith and morals. Her
prohibition would be a merely precautionary measure,
and she would have to act according to can. 1397, § 1.
oogle
Original from
UNIVERSITY OF WISCONSIN
~
458 ADMINISTRATIVE LAW
—
BOOKS FORBIDDEN BY THE APOSTOLIC SEE
a
11
tt
Can. 1396
Libri ab Apostolica Sede damnati ubique locorum
et in quodcunque vertantur idioma prohibiti censean-
tur.
-
Books condemned by the Apostolic See must be con-
sidered as forbidden everywhere and in whatsoever lan-
guage they may be translated.
The term " Apostolic See " comprises the Sovereign
Pontiff as well as the S. Congregations, especially those
directly concerned with the proscription of books.
(a) The Pope himself may forbid a book either by an
" Apostolic letter," or without such a letter. There are
on record four examples of books forbidden by Apostolic
letter and without the cooperation of any congregation."
fb) The Holy Office has issued about 900 decrees for-
bidding books from 1600 to 1900. 7 To this congregation
our Code (can. 247, § 4) has affiliated the famous Con-
gregation of the Index, which has the special duty of
examining and prohibiting books.
(c) Other Congregations whose decrees figure in the
new Index are that of 5. Rites and that of Indulgences
(the latter now incorporated wilh the S. Poenitentiaria).
Besides, all other S. Congregations may take cognizance
of and condemn books having special reference to their
respective departments.8
As to the authority of the decisions rendered in re-
gard to books the following may safely be stated :
The decisions given either by the Pope himself, or by
«Cfr. Hilgers, /. c, p. 89; Geno- T Ibid., p. 88.
vcm, Langeois dca Cliatdlicr, De 6 Ibid., p. 89.
Potter. Stefwart Muller.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1397 459
~
a congregation of the Roman Court do not, per se, con-
tain a dogmatic or an ex cathedra definition, i. c., an infal-
lible verdict as to the doctrine defended or proposed in
the forbidden book. It goes without saying that the Pope
way issue a decree condemning a book with infallible
authority, but in that case his intention must be apparent
from the wording of the decree. The Thursday sessions
of the Holy Office, on account of the personal presence
of the Sovereign Pontiff, are regarded as more weighty
than the others ; but even the decrees issued at these
sessions cannot be called infallible or irreformable.8
It need not be added that these decisions must be re-
ceived with the greatest respect and obedience and with
internal as well as external submission.
Our canon says that the books condemned by the Apos-
tolic See must be considered forbidden everywhere. The
reason is because the Holy See is the supreme tribunal
in matters of faith and morals. Books of purely local
interest usually are left to the local Ordinaries. This
also explains why translations of forbidden books are also
forbidden, for the difference of language is merely acci-
dental. The poison is the same, although the channel
may differ.
THE OBLIGATION OF DENOUNCING BOOKS
• '
a
Can. 1397
§ 1. Omnium fidelium est, maxime clericomm et in
dignitate ecclesiastica constitutorum eorumque qui do-
ctrina praecellant, libros quos perniciosos iudicaverint,
ad locorum Ordinarios aut ad Apoatolicam Scdem de-
ferre; id autem peculiari titulo pertinet ad Legatos
9 ibid., p. 74 f.; p. 88.
Q
jle
v ,1,, Original from
UNIVERSITY OF WISCONSIN
4<3o ADMINISTRATIVE LAW
Sanctae Sedis, locorum Ordinarios, atque Rcctores
Univcrsitatum catholicarum.
§ 3. Expedit ut in pravorum librorum denuntiatione
non solum libri ingcriptio indicetur, sed etiaro, quan-
tum fieri potest, causae exponantur cur liber prohi-
bendus existimetur.
§ 3. lis ad quos denuntiatio defertur, sanctum esto
denuntiantium nomina secreta servare.
§ 4. Locorum Ordinarii per se aut ubi opus fuerit,
per sacerdotes idoneos vigilent in libros, qui in proprio
territorio edantur aut venales prostent.
§ 5. Libros qui subtilius examen exigant vel de qui-
bus ad salutarem effectum consequendum supremae
auctoritatis sententia requiri videatur, ad Apostolicae
Sedis iudicium Ordinarii deferant.
~
Denunciation savors of sycophancy, yet it may become
an official duty. A prosecuting attorney, for instance,
has to denounce crimes and criminals. Every society
which cares for the observance of its laws must have
custodians and guardians of the public welfare. Protes-
tant sects promoted sycophancy by giving part of the fine
imposed upon the guilty to their denouncers.10 The
Catholic Church does not hold out any material gain, but
imposes a strict obligation on all concerned. However,
there is a gradation of duty in regard to denouncing.
Those who arc bound ex ofncio, i. e., the official guardians
and judges in matters of faith and morals, are obliged
m justice to denounce transgressors. The obligation is
grave, as a rule, when the matter is serious, and the dam-
age resulting from negligence would be great. Ordinary
Christians on the other hand are as a rule bound to make
-
lOCfr. Hilpers, /. r. pp. 70, 270 and elsewhere, for inst., the Nether-
(!n "free** Switzerland denuncia- lands,
tion flourished), p. 304 (Hungary)
.'le
f* ^ v ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1397
461
■
denunciation only when the matter is very important, as
when a book causes great injury to faith and morals, or
if a positive law imposes denunciation. Besides, it is
evident that less educated persons are as a rule exempt
from the obligation of denouncing books, unless their
conscience raises an irresistible scruple, in which case
they may refer the matter to the confessor. But cultured
Catholics who move in the higher circles of society most
certainly are bound to perform this duty. It is a natural
duty enforced by positive law.11 Hence our canon rules:
1. That it is the duty of all the faithful, especially of
clergymen, ecclesiastical dignitaries and persons distin-
guished by learning to denounce books which they deem
pernicious, to the local Ordinaries or to the Apostolic See.
More especially is this duty incumbent on papal legates,
local Ordinaries, and the rectors of Catholic universities.
The last named organizations in the Middle Ages always
were conspicuous for their zeal in maintaining orthodoxy,
as is proved by their statutes, which forbade the pro-
fessors as well as librarians to publish or sell manuscripts
that had not been corrected and examined by the fac-
ulty.12 Now-a-days, too, on account of the number of
students as well as by reason of extensive literary ac-
quisitions and communications, the Catholic universities
are favorably situated for watching scientific productions.
2. When denouncing a book it is expedient that not
only the title of the book be indicated, but also the ob-
jectionable passages be singled out which call for a pro-
hibition. Such cooperation facilitates the work of the
consultors and censors, who are usually overburdened,
and, besides, guarantees the acumen and sincerity of the
denouncing person.
11 Cfr. " OfRciorum &c munerum," n. 27 ff.
12 Hilgers, /. c, p. 404.
>ogle
Original fro ni
UNIVERSITY OF WISCONSIN
462 ADMINISTRATIVE LAW
3. Those who receive the denunciation, t. e., usually
the officials of either the Roman or the diocesan court,
are strictly bound to keep the name of the denouncer se-
cret. This is a grievous obligation, enhanced for the
officials of the Sant' Uffizio bv their sacred oath. The
Secretary of the S. Congregation, however, is authorized
to communicate to the author the objections made to his
book, but he may not divulge the name of the denouncer
or censor.'3
4. The local Ordinaries, either personally, or, if nec-
essary, through capable priests, should watch the books
that arc published and sold in their territory. This was
the duty of the so-called iHgilance commissions prescribed
by Pius X against the Modernists.14 Although the Code
does not enforce this law, the Holy Office has decided
that it remains in force until the Apostolic See orders
differently.18
The members of the diocesan vigilance commission may
perform their duty at regular sessions, to be held every
other month, or by written communication.16 It is clear
that an effective control can be exercised only over Catho-
lic firms, who may be deprived of their title of Catholic
book-sellers if they refuse to obey episcopal orders.
Even if a book has the imprimatur, but is proved to be
infected with modernism, it must be withdrawn from
sale or exhibition.17 Priests, especially pastors and con-
fessors, should watch over the reading of the faithful,
particularly over circulating libraries and also public
libraries. Much can be accomplished by prudent vigt-
~
S.. X, 136).
13 Benedict XIV, " Sollicita ac 10 S. C Consist., Sept. 25, 1910,
provide/' July 0, 1753, 3 I*. ad II, III (A. Ap. S., II, 740 f.).
14 " Sacrorum Antiititum," Sept IT " Socrarum Antittitum," n. Ill
t, 10:0 (A. Ap. S.. II. 664). (A. Ap. S., II. 660).
15 S. O., March 22, 1918 {A. Ap,
*Ie
% .J,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1398
463
lance in keeping these institutions free from objectionable
books-
5. Books which require a more thorough examination
or call for the judgment of the supreme tribunal, should
be referred to the Holy See by the Ordinaries — by all
Ordinaries, not only the diocesan bishops. Sometimes the
matter at issue may not be delicate or difficult, but the
author's name and reputation require an emphatic and
more solemn sentence, to produce the desired effect.
THE EFFECTS OF PROHIBITION
-
Can. 1398
§ 1. Prohibitio lib ro rum id efficit ut liber sine debita
licentia nee edi, nee legi, nee vendi, nee retineri, nee in
aliarn linguam verri, nee ullo modo cum aliis commit-
nicari possit.
§ 2. Liber quoquo modo prohibitus rursus in lucem
edi ncquit, nisi, factis correctionibus, licentiam is dede-
rit qui librum prohibuerat eiusve Superior vel suc-
cessor.
§ 1. The prohibition of books has this effect that a
forbidden book may not be published, nor read, nor kept,
nor sold, nor translated into another language, nor com-
municated to others in any way.
The term edere (to publish) concerns the author, the
editor, and the printer : the author of the book is forbidden
to have it printed and published ; the editor may not sell
it, and the printer may not print and bind it, either per-
sonally or through others. Accessory helpers and remote
cooperators are hardly affected, as otherwise there would
be an indefinite number of persons included.
Reading a book means the operation by which the
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
464 ADMINISTRATIVE LAW
contents of a book are conveyed to the mind through the
senses of vision or hearing. If one would employ an-
other to read a forbidden book to him, he would certainly
read it himself and would incur the penalty of the law.18
To keep a book (retinere) means to possess it perma-
nently as one's personal property or to have it in one's
possession temporarily or transiently so as to be able to
make free use of it. Librarians are not said to keep,
but rather to guard the books entrusted to their care.
The length of time is immaterial, but must amount to a
somewhat protracted action, as the reduplicative par-
ticle re indicates.
CI
Books may be sold in stores or at auction, at wholesale
or retail, of which more under can. 1404.
What translations are is generally known. Here we
will only observe that it does not matter whether the ob-
jectionable passages or parts of a forbidden book are
omitted or explained in the translation; as long as the
original text is forbidden, the translation is also forbidden,
unless expressly approved.
Contmunicare aliis means to loan a book to others or to
exchange it for another. It may also imply making the
contents known to others. In this latter sense the reading
of a forbidden book to others, for instance, by a teacher
to his pupils, is forbidden. 19
is To read a book means Id as- also those who read the proofsheets
limilate a conctilemMe part thrrrnf of a book.
(Vcrmecrsch, /. c„ n. 32, n. xi); i» Under this heading ai well as
the opinion of St. Alphonsus, re- under that of " retaining " fall res-
ferred to by Noldin (/. c, n. 702, p. taurants, hotels, boarding housei,
728), and opposed to what wc say etc., which keep objectionable papers
in the text, is contrary to Reg. luria and magazine* and place them at the
72 in 6B. Of course, if one would disposal of their guests. The own-
hear some parts of a forbidden book ers of these places are certainly not
read by mere chaucc, he would not allowed to keep literature which is
fall under the law. Readers are manifestly contrary to faith and
"-.
morals.
§le
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1398 465
Here may be ardded some explanations given by the
Holy Office. A book may not be read, even if the con-
tents are not understood or the errors are not accepted.
This applies also to Protestant Bible translations: they
may not be read even if the missionaries, for instance,
have corrected the erroneous passages.*0 Neither may a
forbidden book be read or retained for a good and holy
purpose.*1
Books which are forbidden with the clause, "donee
expurgentur," may not be retained until they have been
corrected."
§ 2. A book forbidden no matter how, may not be re-
published until after it has been corrected and the one
who forbade it, or his superior or successor, has granted
permission to republish it. Therefore, if the bishop has
forbidden a book, and recourse was had to the Roman
Congregation, who granted the imprimatur, the book may
be published. Note a4so the term quoquo tnodo, in what-
ever manner forbidden. The Constitution of Leo XIII
(n. 31) applied that rule to books prohibited by the Apos-
D
tolic See. But our text says in a general way, no mat-
ter how and by whom forbidden, whether by general
rules or special prohibition, whether by the Ordinaries or
by the Apostolic See. The latter is always ready to ac-
cept corrections made by the author, provided he has
duly submitted himself and his corrections are accepted
by the examiners.
aoS. O., July 2G, 1848 {Colt. 22 Prop. 43 damn., March ifl, 1666
P. P., n. 1030). (Denxiuger, n. 1016).
Si S. O.. June 29. 1817 Hi
n. 7i8>.
■d by GoOgle
j ^ Original from
UNIVERSITY OF WISCONSIN
466 ADMINISTRATIVE LAW
LIST OF FORBIDDEN BOOKS
a
Can. 1399
Ipso iure prohibcntur :
X.° Editiones textus originalis et antiquarum versio-
num catholicarum sacrae Scripturae, etiam Ecclesiae
Ori entails, ab acatholicis quibuslibet publicatae; item-
que eiusdem versiones in quamvis linguam, ab eisdem
confectae vcl editae ;
2.0 Libri quorumvis scriptorum, haeresim vcl schi-
sma propugnantes, aut ipsa religionis fundamcnta quo-
quo modo evertcre nitentcs ;
3.0 Libri qui religionem aut bonos mores, data opera,
impetunt ;
4.0 Libri quorumvis acatholicorum, qui ex prof es so
de religione tractant, nisi constet nihil in cis contra
fidem catholicam contineri ;
5.0 Libri de quibus in can. 1385, § 1, n. 1 ct can. 1391 ;
itemque ex illis de quibus in cit. can. 1385, § x, n. a,
libri ac libelli qui novas apparitiones, revelatior.es, vi-
siones, prophetias, miracula enarrant, vel qui novas
inducunt devotiones, etiam sub praetextu quod sint
privatac, si editi fuerint non servatis canonum prae-
scriptionibus ;
6.° Libri qui quodlibet ex catholicis dogmatibus im-
pugnant vel derident, qui errores ab Apostoltca Sede
proscriptos tuentur, qui cultui divino detrahunt, qui
disciplinam ccclcsiasticam evertcre contcndunt, ct qui
data opera ecclesiasticam hierarchiam, aut statum cle-
ricalem vel religiosum probris afficiunt;
7.0 Libri qui cuiusvis generis superstitionem, sorti-
legia, divinationem, magiam, evocationem spirituum,
aliaque id genus docent vel commendant;
s
G I Originalfiom
UOglC UNIVERSITY QFWI5C0NSIN
CANON 1399 467
8.° Libri qui duellum vel suicidium, vel divortium
licita statuunt, qui de sectis massonicis vel aliis eius-
dem generis socictatibus agentes, eas utiles et non per-
niciosas Ecclesiae et civili societati esse contendunt;
9.0 Libri qui res lascivas seu obscenas ex professo
tract ant. narrant, aut do cent;
10. ° Editiones libronun liturgicorum a Sede Aposto-
lica approbatorurn, in quibus quidpiam immutatum
fuerit, ita ut cum authenticis editionibus a Sancta Sede
approbatis non congruant;
11. ° Libri quibus divulgantur indulgentiae apocry-
phae vel a Sancta Sede proscriptae aut revocatae;
12. ° Imagines quoquo modo impressae Domini No-
stri Iesu Christi, Beatae Mariae Virginia, Angelorum
atque Sanctorum vel aliorum Servorum Dei ab Eccle-
siae sensu et decretis alienae.
By law {i.e. , common law) are forbidden:
l.° Editions of the original text and of ancient Catholic
versions of Holy Scripture, also of the Oriental Church,
which have been published by non-Catholics; also trans-
lations of the same into any language made or published
by non-Catholics.
The original text of the O. T. is in Hebrew, except por-
tions of the Book of Esdras and about half of Daniel,
a
which are written in Chaldean. The Books of Judith,
Tobias, Baruch, Ecclesiasticus, I Machabees and parts of
Daniel were written either in Hebrew or in Chaldean, but
are preserved only in translations, of which the Greek
Septuagint is the oldest. The book of Wisdom, II Macha-
bees and the whole of the N. T. were composed in Greek,
and have come down to us in that language.
Ancient translations are several Greek and Chaldean
translations of the O. T. ; a Samaritan version of the
jle
j ^ Original fro rn
UNIVERSITY OF WISCONSIN
;
468 ADMINISTRATIVE LAW
Pentateuch, some Syriac versions (especially the Peshitto
of the 1st century), several Arabic (mainly made in the
Xth century by a Jewish rabbi), one Armenian (IVth
century) one Coptic (Illrd century) one Ethiopian (IVth
century), one Slavonic, one Gothic (by Wulfilas, IVth
century); and especially the Latin versions called Itala
and Vulgate.23 All these texts and versions, if published
by non-Catholics, are forbidden, for the reason that there
is danger of perversion and hypercriticism, which may
lead to the elimination of genuine texts or wrong punctua-
tion, etc. By issuing this prohibition, of course, the
Church does not wish to slur well-deserving non-Catholic
editors or their work. She merely desires to safeguard the
text of S. Scripture and the faith of her children.
More liable to carelessness and perversion than the an-
cient versions are the translations into modern languages,
of which the King James Bible furnishes an example.
Most of them entirely omit the so-called deutero-canonical
books and thus offer a mutilated Bible.
2° The books of writers defending or championing
heresy and schism, or attempting in any way to under-
mine the very foundations of religion.
The text omits the term " apostates," found in the
Leonine legislation, for the reason, apparently, that they
are included either in this paragraph or the following two.
Propugnare means an argumentative defence. Heresy
and schism have been defined in can. 1325, § 2,
The foundations of religion are the fundamental truths
of both the natural and the supernatural, i. e., revealed,
order, — the existence of God, the immortality of the
soul, the possibility and reality of miracles, etc., as gen-
erally set forth in handbooks of fundamental theology or
23 Seisenbcrger, Practical Handbook for the Study of the Bible, (Engl.
Tran*!.) 1911, p. 213; p. 235.
§le
f ■ j , Original fro m
UNIVERSITY OF WISCONSIN
CANON 1399
469
apologetics.2* The undermining, evertere, may be done
by casting ridicule upon these fundamental truths; hence
satirical, also sceptical writings would suffice.
3.0 Books which purposely attack religion or good
morals. Data opera appears to mean the same as ex
professo, and is opposed to such expressions as per-
functorie and obiter. It may be, however, that data
opera is intended to signify the intention. This wou>d
have to manifest itself in some way, whereas ex professo
rather refers to the way and style of handling the argu-
ments or subject. Practically the two phrases are hardly
to be distinguished from each other.
What is understood by religion is not expressly de-
termined, but there can be no doubt that the term here
denotes first and above all the true religion of Christ, and
secondarily natural religion, which governs the relations
between God and His creatures.
"Good morals" comprise the principles laid down by
ethics as well as moral theology, not only the system
as a whole, hut any part of it. Thus, for instance, a book
defending " race suicide " or profiteering would no doubt
be opposed to good morals.
Impetere means not only to make incoherent statements,
as is done in newspapers, but to launch an elaborate or a
systematic attack.
4.0 Books by noti-Catholics which professedly treat of
religion, unless it is certain that they contain nothing con-
trary to the Catholic faith."
The author must be a non-Catholic, — i. e.t a pagan, Jew,
24 Tbui Wtrnz. Jut Decret.. Vol. ligious foundations; it is cot true
nf, cd. i, p. 119, n. in. Ver- that all these are included in heresy
meersch {I. c, n. 13) excludes and schism, for not all heretics and
" praccipua dogmata ipsius fidei" schismatics attack them,
and seems to insist too much on the as Werax, /. c; Hurley, /. c, p.
distinction between scientific »nd re- 6a.
oogle
Original from
UNIVERSITY OF Vi-'ISCONSI
~
470 ADMINISTRATIVE LAW
Moslem, heretic, schismatic, or an apostatized Catholic,
for our Code always uses the term non-Catholic in this
wide sense.
The phrase " ab acatholicis quibuslibet" in no. 1 of the
present canon shows that, as in the Constitution of Leo
XIII, so here also the term "non-Catholic" must be
interpreted in the widest sense.20
The subject rs religion, without any further determina-
tion, therefore natural as well as supernatural religion,
for in the final analysis all Religion affects the attributes of
God.
The mode of treating religion must be ex professo,
which, as stated before, signifies not a mere transient or
cursory statement, but a formal and developed argument
dealing with at least a notable and considerable part of
the subject in question. Such, for instance, are sermons
or discourses written by non-Catholics, histories of re-
ligion, etc.
The restrictive clause " nisi constet . . ." permits the
reading of such books if it is morally certain that they con-
tain nothing against the Catholic faith, either by way of
assertion, innuendo, or induction. The word nihil is a
wide term, as it marks a universal negation and generally
admits of no restriction. Still stronger would be the ex-
pressions, "nihil penitus" or " nihil omnino," which abso-
lutely exclude everything and anything.21 But since the
simple term "nothing" is used here, we may admit the
adage " parton pro nihil o putatur," and say that one or
the other sentence of little importance against the Catho-
lic faith might be overlooked, especially if there is a
palpable absence of malicious intent.
It is said that one must be morally certain that the book
so Wcrn*, /. c, p. 119 '•
2T Darbou, Traetatuj Varii, Dictio 214 (ed. Lugdun.. 1660, p. 7'$)-
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CANON 1399
471
-
contains nothing objectionable. This certainly may be
obtained by reading the book, either privately or officially,
on the part of persons who are capable of judging it and
possess a conscientious disposition.
5. Bibles and Biblical annotations and commentaries,
modern translations of the Bible, i. e., into the vernacular,
and all books mentioned in can. 1385, § 1, n. 2, books
and booklets which narrate new apparitions, revelations,
visions, prophecies, miracles or aim to introduce new devo-
tions, even though they pretend to be purely private, if
published without regard to the rules prescribed, 1. 1.%
without complying with the law of previous censorship
(can. 1393).
Note the word narrare, which is historical rather than
theological or scientific. However, a mere report in a
newspaper or magazine could hardly be intended, because
the term appears to require a longer treatise.38 This
rule also applies to " war prophesies," of which we heard
so much of late. It does not matter whether the facts
narrated are objectively true or not.
New devotions are such as have not yet been approved
by ecclesiastical authority. In regard to new devotions, as
well as to apparitions, for instance, of the Blessed Virgin
Mary, observe that, if they were believed and tolerated
for a long time, and never disapproved by the Holy See,
they may continue to be tolerated by the local Ordinary,
who may also approve them and thus render them per-
missible. In case of episcopal approbation, the Ordinary
should add a declaration to the effect that the respective
devotion is tolerated on account of immemorial custom."
M Thus also Vermcersch, (. r., n.
14. Thii seems also evident from
the opposition: books and booklets.
Their chief purpose must be the nar-
ration of such thing*, no matter
whether the narrator himself be-
lieves the story or not.
z»S. Kit. C, Feb. 6, 1875: May
ia, 1877 {Dtc. Auth., an. 3336,
3410)-
►ogle
Original from
UNIVERSITY OF WISCONSIN
~
472 ADMINISTRATIVE LAW
The previous censorship, therefore, is required for all
these books, and without the Ordinary's imprimatur no
one may read them, even for private devotion.
6.° This number contains several classes of books
which are best kept separate, namely:
(a) Books which attack or ridicule any dogma of the
Catholic Church. Dogma here means an article of divine
or Catholic faith. The attack may be made by argument
or in the form of a simple statement. Ridicule may be
contained in one sentence.
(b) Books which defend errors that hare been pro-
scribed by the Apostolic See, i. e.f by the Pope himself,
or by one of the S. Congregations.30 This law refers
principally to formally condemned errors of heretics,
e.g., Jansenius, Bajus, Molinos, etc., also to the proposi-
tions censured in the Syllabus of Pius IX and the so-
called New Syllabus of Pius X.
(c) Books which disparage divine worship. Cult us
diinnus is here evidently to be taken in the same sense in
which the Code uses the term in can. 1255 ff., i. e., the
worship paid to God and His Saints as well as the
liturgical functions of the Church, which are nothing else
but visible manifestations of internal worship.
Detraherc signifies a kind of slander of a person or
disparagement of some object connected with that person.
Thus the worship of relics and sacred images is dis-
paraged by iconoclastic propositions.
(d) Books which seek to undermine ecclesiastical disci-
in
pline. To this class belong writings directed against the
Canon Law and the divine liturgy. Ecclesiastical disci-
pline comprises all the measures taken by the Church to
preserve and develop the society founded by Christ. The
10 It is not necessary that any epe- ria, tcandalosa, piarum annum of-
cific qualification (erronea, temero- fensiva. etc.) be added.
jle
£ * ^ vnl/. Original from
UNIVERSITY OF WISCONSIN
CANON 1399 473
term includes the holy seasons, the sacred liturgy, the
duties and privileges of clergy and laymen,51 etc.
(e) Books which of set purpose insult the ecclesiastical
hierarchy or the clerical or religious state. The term
insult is liable to a more or less subjective interpretation.
Essentially it means an undeserved affront or indignity
offered to one's self-respect. The insult, to bring a book
within the prohibited class, must strike at the hierarchy
as such, not at single persons. The same is true of the
clerical or religious state. Therefore an insult hurled
against a clergyman, or several clergymen, or against a
religious, or one house or congregation of religious, or
even a whole order could not be called an affront against
the religious state.1
7.0 Books which teach or approve any kind of super-
stition, fortune-telling, divination, magic, the evocation
of spirits, and other similar practices.**
Superstition seems to be here taken as a distinct and co-
ordinate, not as a comprehensive term, and hence means
a specific form of belief, which manifests ignorant or ab-
normal credulity, such as the belief in omens, charms,
etc. The other terms include the whole broad field of oc-
cultism or Spiritism, witchcraft, sorcery, clairvoyancy,
and so forth. Hypnotism and somnambulism, if super-
stitious, are also included. Hooks teaching or approving
such practices are forbidden, not, of course, books written
for the purpose of combatting them.
8.° Books which defend the lawfulness of duelling or
suicide or divorce; or which try to prove that Freemasonry
3i However, this must be under- 32 Thus the commentators gener-
stood, not of ■ ingle canons or rub- ally: see Werni, /. c., p. 133.
rics, but of (he law and liturgy as a 33 Somewhat different appears to
whole, or at least some compact part be the meaning in " Officiorum ac
thereof. munerum," art. 12.
v ,|,, Original fro m
UNIVERSITY OF WISCONSIN
>gle
474 ADMINISTRATIVE LAW
and other similar sects are useful and not detrimental to
Church and State.
a
Statuere, in the first clause, means literally to establish,
determine, pass judgment or demonstrate. To do this
requires no ex profcsso treatise, but the tendency to make
duelling, etc., appear lawful, must be manifest. Law
books which admit divorce are excepted from this pro-
hibition, because they are merely repositories of laws.
But a pamphlet written to recommend a divorce bill
would certainly be prohibited.
The second class treats of Masonic and similar sects.
Masonic societies are those which have special rites, secret
oaths, and advocate subversive principles. The last men-
tioned feature is now regarded as a characteristic fea-
ture,34 and hence all anarchistic, Bolshevist, and extremely
Socialistic societies are included.30 However, such books
or pamphlets, to fall under the prohibition of our canon,
must make a serious attempt to prove the usefulness or
harmlessness of these sects. This requires argumentation
which is apt to convince the reader.
Q.° Books which of set purpose treat of, relate, or in-
a
c ideate lascivious and obscene things. Hither belongs the
whole class of strictly so-called pornographic literature,
as well as innumerable romances, novels, and poems.
To treat of (tractare) implies a frivolous or alluring
style. Narrare refers to a minute or detailed account of
obscene facts, whilst docere may be taken as indicating
that the reader deduces false conclusions from the de-
scription or narrative. From this it is evident that sci-
entific treatises on medicine, surgery, pastoral medicine,
and moral theology do not belong to the category of for-
a
84 Cfr. S. C. P. F., Sept. 24, 186; doubts whether Socialists are in-
(ColL, 11. ijao). eluded because they arc, he main-
85 Vermeersch /. c, n. I j) tains, neither a f actio (mm* f>artie, a
§le
Original from
UNIVERSITY OF WISCONSIN
CANON 1400 475
bidden books " unless they are written in a style which
clearly betrays the purpose of the author to be other than
scientific.
The term " books " here excludes images, pictures,
drawings, engravings, photogravures, etc.
10. ° Editions of liturgical books approved by the Apos-
tolic Sec, which have been altered so as no longer to agree
with the authentic terts.
ii.° Books which spread apocryphal indulgences or in-
dulgences that have been proscribed or recalled by the
Holy See.
1 2.0 Images, however printed, of our Lord Jesus
Christ, the Blessed Virgin Mary, the Angels, the Saints,
and other Servants of God, if not in keeping with the
spirit or decrees of the Church.
These last three classes of publications have been suf-
ficiently explained under canons 1257, 1279, 919.
exception in favor of theological students
Can. 1400
Usus librorum dc quibus in can. 1399. n. 1, ac libro-
rum editorurn contra praescriptum can. 1391, iis dum-
taxat permittitur qui studiis theologicis vel biblicia
quovis modo operam dant, dummodo iidem libri fideli-
ter et integre editi sint neque impugnentur in eorum
prolegomenis aut adnotationibus catholicae fidei dog-
mata.
Editions of the original text of Holy Scripture, of the
ancient versions by non-Catholics, and translations into
parly), nor a secret (occulta) seel. faction or parly can certainly Dot
Hut the latter characteristic is not be denied to such Socialist bodies as
absolutely needed, according to the the Spartacists in Germany,
preceding note; and the attribute of aaWernz, /. c, p. laa.
jle
I , Original from
UNIVERSITY OF WISCONSIN
476 ADMINISTRATIVE LAW
the vernacular made and published either by non-Catho-
lies or by Catholics without previous censorship, are al-
lowed to such as are in any way engaged in theological
or biblical studies, provided, however,
(i) that these editions are faithful and entire, and
(2) that neither the introduction nor the annotations
contain attacks on Catholic dogmas.
There is, then, a privileged class of persons, who may
make use of the aforesaid forbidden books, but not of
others mentioned in the preceding canon, namely those en-
gaged in theological or biblical studies. Theology com-
prises first and above all dogmatic theology, but may be
taken as coextensive with the theological course of can.
1365, § 2, and therefore includes all branches usually
taught with theology. This interpretation is not con-
tradicted by the declaration of the S. C. of the Index, of
June 21, 1898, which (ad 3am partem) excludes from
0)
this privilege those who simply read the Hebrew or Greek
text of S. Scripture without reference to theological
studies}1 Hence one purpose of using these otherwise
forbidden books is theological study. Another is the pur-
suit of biblical studies, viz., introduction, hermeneutics,
and exegesis. Now both these studies may be pursued
not only by professional theologians and biblical scholars
or professors, but also by students in seminaries, uni-
versities, etc. All these share in the privilege extended
by can. 1400."
Is the use of these editions allowed if one has to pre-
pare a sermon or lecture? Our answer would be that for
a usual Sundav or holyday sermon no special theological
or biblical study is required, and therefore we could not
a
c
S7 Cfr. Wcrnr, L ft, p. UOj mis- 38 Cfr. S. C. Indie, May 23, 1898,
taken ia Hurley '■ interpretation, /. ad 1 (Co//. P. I-'., n, 2000J.
c. p. 69.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 140 1 477
say that these preachers are engaged in (operant dant)
such studies.89 But if one would have to deliver an elab-
orate lecture on a theological subject, say for instance, on
creation, on the Real Presence, or on Holy Orders, he
would certainly have to study his subject, and therefore
would be allowed to make use of these editions.40
persons exempt from the prohibition
Can. 1401
S. R. E. Cardinales, Episcopi, etiam titulares, aliique
Ordinarii, necessariis adhibitis cautelis, ecclesiastica
librorum prohibitione non adstringuntur.
■
Cardinals, residential as well as titular bishops, and
other Ordinaries, provided they employ the necessary
precautions, are not bound by the law of forbidden books,
(but must obey the law of previous censorship).
What precautions are to be taken is not determined by
the Code. They may be described as follows :
(a) The natural as well as positive law requires that
one should not expose his faith and morals unnecessarily
to danger (cfr. can. 1405, § 1), for no one is immune from
temptations.
(b) No one is allowed to read lascivious or obscene
books unless bound to do so ex officio, to examine them ;
(c) If the persons mentioned retain forbidden books,
they must see to it that they do not fall into the hands of
those not permitted to read them. This does not mean,
however, that Ordinaries, etc., may not communicate
30 If one, by way of exception, 4<) The best known editions by
should need a critical edition, or non-Catholic authors are those of
ahould have no other text at hand, Tiaclicndurf, Trcgcllci, and Wcstcott
he would he excused. and Hort.
"■
jle
Original from
UNIVERSITY OF WISCONSIN
478 ADMINISTRATIVE LAW
among themselves or converse with their censors about
such books.
Here it may be useful to add a word about librarians.
These, being custodians, not proprietors or retainers, of
the books in their care, should see to it that forbidden
books are kept separate, or if this is impossible or im-
practicable, that a warning sign be placed on the shelves
containing forbidden or dangerous books.
The prelates or superiors of exempt clerical institutes,
who, according to our canon and canon 198, are free from
the restrictions of the law regarding forbidden books,
should take care that their libraries are so managed as to
preclude danger to their subjects.
This rule may also be applied to parish libraries, though
these, as a rule, will hardly keep forbidden books, with
the exception perhaps of non-Catholic editions of the
Bible.
What we have said is nothing but a logical deduction
from can. T403, § 2, which strictly obliges those who have
obtained faculties for reading or retaining forbidden
books, to guard them carefully, so that they do not fall
into the hands of others.
faculties
Can. 1402
-
§ I. Ordinarii licentiam, ad libros quod attinet ipso
iure vel decreto Sedis Apostolicae prohibitos, conce-
dere suis subditis valent pro singulis tantum libris
atque in casibus dumtaxat urgentibus.
§ 2. Quod si generalem a Sede Apostolica faculta-
tem impetraverint suis subditis permittendi ut libros
proscriptos retineant ac legant, earn nonnisi cum de-
lectu et iusta ac rationabili causa concedant.
I Original from
1 K H '8ie UNIVERSITY OF WISCONSIN
CANON 1402-1403 479
Can. 1403
§ 1. Qui facultatcm apostolicam consecuti sunt le-
gendi et retinendi libros prohibitos, nequeunt ideo lc-
gere et retinere libros quoslibet a suis Ordinariis pro-
scriptos, nisi in apostoiico indulto exprcssa iisdem
facta fuerit potestas lcgcndi et retinendi libros a qui-
buslibet damnatos.
§ 2. Insuper gravi praecepto tenentur libros prohi-
bitos ita custodiendi, ut hi ad aliorum manus non
perveniant.
Can. 1402 mentions two kinds of faculties, one granted
by the law itself, the other by the Apostolic See.
1. Ordinaries, i. e., all who go by that name 41 in virtue
of can. 198, § i( may grant permission to their subjects
to read books forbidden either by law (*". e., by the Code)
or by a special decree of the Apostolic See, but they can
impart this faculty only for individual books and in urgent
cases. The term " pro singulis tantum libris " means that
each book must be distinctly mentioned by title and no
wholesale permission may be issued. The plural form,
singulis libris, permits the faculty to be given for more
than one book at a time, provided they are duly specified.
Urgent cases are such as arise suddenly and unex-
pectedly. Thus if a writer needs a certain book for
immediate use, he may apply to his Ordinary, (either the
local Ordinary, if he is subject to him, or the exempt
religious superior, if he is an exempt religious) and ob-
tain the permission needed.
It may have surprised the reader to find libri lascivi vel
-
41 Wernz. /. c, p. tag correctly 8 and can. 50:. } |, have jurisdic-
held against PcnnacchJ that all or* tion in foro externo, must here be
-
dinaries, hence also religious supe- understood.
riors who, according tu can. 488, n.
in
■-:
Go cgle
I ^ Original fro ni
UNIVERSITY OF WISCONSIN
48o ADMINISTRATIVE LAW
obscoeni mentioned under n. 9 without the restriction or
mitigation found in rule 10 of the Constitution of Leo
XJII, in favor of classical writers. Does the New Code
abolish this mitigation? It does, though § 1 of can. 1402
permits teachers and others whose office necessitates such
reading, to apply to their superiors for the faculty, if the
case is urgent, as it generally is.
§ 2 mentions a general faculty granted by the Apostolic
See (Holy Office).42 If such a general faculty has been
given to Ordinaries for the benefit of their subjects, it
should be communicated to the latter with discretion and
•a
only for a just and reasonable cause.
The term " cum delectu " doubtless refers to the persons
subject to the Ordinaries. These persons are described
in the Clementine Instruction as men of learning and
piety who labor for the public welfare and that of the
Catholic Church. Being engaged in such work consti-
tutes a reasonable and just cause for granting the permis-
sion.
Ordinaries who have this general (either triennial or
quinquennial) faculty, before granting either perpetual or
revocable permission to their subjects,'3 should carefully
read the text of the grant, for it may be that some classes
of books (e.g., libri obscoeni or books ex professo de-
fending heresy and schism or undermining the founda-
tions of religion) arc excepted.
Can. 1403 rules that those who have obtained a papal
faculty for reading and keeping forbidden books, are not
thereby entitled to read and keep books proscribed by
their Ordinaries unless the indult which they have ob-
42 Secular prelates have lo pcli- aganiia Fide. Religious prelates
tion tlic Holy Office if they arc un- must apply to the S. C. Relig.
der the ordinary hierarchical juris- ** VVcrnz, /. c, p. 129.
diction; otherwise the S. C de Prop-
jle
£ * -» v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1404 481
tained contains the express clause that they may read and
keep books no matter by whom condemned}4
What was said under can. 1395, also applies here and
should be compared with rule 26 of the Constitution of
Leo XIII, which employs the term "local Ordinaries"
(Ordittariis locorum), whereas our canon mentions Ordi-
naries in general. The consequence is that if the local
Ordinary or bishop forbids a book, or magazine, or paper,
exempt religious are not, juridically speaking, bound to
heed the proscription, until their superior has approved it.
On the other hand, the religious superior of an exempt
clerical institute may forbid a book or pamphlet or maga-
zine not forbidden by the local Ordinary. Therefore a
religious who has obtained a papal indult to read and
keep forbidden books is not allowed to read or retain a
book forbidden by his (exempt) religious superior, unless
the above-mentioned clause is found in the papal indult.
This rule holds good even if the local Ordinary or reli-
gious superior should prohibit a book already proscribed
either by common law or by a special decree of the Apo-
stolic See ; for there may be a special local or personal
reason why this book should be doubly forbidden.
We may finally admit a certain epikcia when an ade-
quate reason of utility or necessity exists for not observ-
a
ing the law, as far as its positive side is concerned, pro-
vided, of course, there be no danger to faith or morals.*5
booksellers
Can. 1404
-
Librorum venditores libros de obscenis ex professo
tractantes ne vendant. commodent, retineant; ceteros
g
4* Hurley, /. c, p. 172 t. *s Ycrmcersch, /. c, a. 34.
►ogle
f* ^ -. %\s* Original from
UNIVERSITY OF WISCONSIN
482 ADMINISTRATIVE LAW
prohibitos venales ne habeant, nisi debitam licentiam
a Sedc Apostolica impetraverint, neve cuiquam ven-
dant, nisi prudenter existimare possint ab emptore le-
gitime peti.
Catholic booksellers" arc bound in conscience:
i.° Not to sell, loan, or keep books which treat ex fro-
fesso of obscene subjects. Here again no distinction is
made between classical and ordinary authors, and there-
fore all obscene books are included. However, it stands
to reason that purged or corrected editions of classical
authors may be sold.
2.° Not to offer for sale any other forbidden books, ex-
cept with the permission of the Apostolic See (i. e., the
Holy Office), nor to sell any such books to anyone of
whom it cannot be reasonably supposed that he asks for
them lawfully.
Venales habere means to exhibit or offer for sale.
Since the term "retinere" does not occur in this clause,
we may reasonably suppose that booksellers are allowed
to keep such books in stock, but only in a hidden or secret
place, not publicly. But they may not list them in their
catalogues or advertise them unless they have obtained a
papal indult to this effect. Even if they have such an
indult, they should be careful not to sell forbidden books
indiscriminately. If a customer asks for a forbidden
book, they are not indeed obliged to ask whether he has
permission to read and keep it, but they should be morally
certain that he does not ask unreasonably.
46 A distinction between Catholic n. 46, but it is not repeated in our
and non-Catholic booksellers was Code, because the Code legislate!
drawn in " OtHciorum ac munerum," for Catbolici only.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 1405
483
Can. 1405
§ I. Licentia a quo vis obtenta nullo rnodo quis exi-
mitur a prohibitionc iuris naturalia lcgendi libros qui
ipsi proximum spirituals pcriculum praestant.
§ 2. Ordinarii locorum aliique curam animamm ha-
bentes opportune moneant fideles dc periculo ct damno
lectionis librorum pravorum. praesertim prohibitorum.
§ I. A license to read forbidden books does not in any
way exempt one from the prohibition of the natural law
against reading books which are to him a proximate occa-
sion of sin. Therefore
§ 2. The local Ordinaries and all those in charge of
souls should warn the faithful of the danger and injury
caused by reading bad, especially forbidden, books.
It is obvious that one who disobeys the law of the
Church and neglects the precautions dictated by reason,
cannot expect supernatural help against temptations.
For completeness' sake we here add can. 2318.
PENAL SANCTION
Can. 2318
§ 1. In excommunicationem Sedi Apostolicae speci-
al! modo reservatam ipso facto incurrunt, opere publici
iuris facto, editores librorum apostatarum, haeretico-
rum et schismaticorum, qui apostasiam, haeresim,
schisma propugnant, itemque eosdem libros aliosve per
apostolicas litteras nominatim prohibitos defendentes
aut scienter sine debita licentia legentes vel retinentes.
§ 2. Auctores et editores qui sine debita licentia sa-
crarum Scripturarum libros vel earum adnotationes
aut commentarios imprimi curam, incidunt ipso facto
in excommunicationem nemini reservatam.
*Ie
Original fro m
UNIVERSITY OF WISCONSIN
■
484 ADMINISTRATIVE LAW
§ 1. Those who publish books written by apostates,
heretics, and schismatics defending apostasy, heresy, or
schism, incur the excommunication reserved speciali tnodo
to the Holy See. The same penalty is incurred by those
who defend such books or others nominally forbidden by
Apostolic letter, or who knowingly read or retain them
without due permission.
§ 2. Authors and publishers who, without due permis-
sion, print books of Sacred Scripture or annotations and
commentaries thereon, incur excommunication reserved to
no one.
I Original from
1 K H 'gie UNIVERSITY OF WISCONSIN
TITLE XXIV
THE PROFESSION OF FAITH
who must make it
Can. 1406
§ 1. Obligationc emittcndi professioncm fidci, se-
cundum formulam a Sede Apostolica probatarn, te-
nentur :
i.° Coram praeside eiusve delegato, qui Oecumenico-
vel particulari Concilio aut Synodo dioecesanae inter-
sunt cum voto seu consultivo seu deliberativo ; pracses
autem coram eodem Concilio vel Synodo ;
2.0 Coram Sacri Collegii Decano, Cardinalibus pii-
mis in ordine presbyterorum et diaconorum et S. R. E,
Caxnerario, promoti ad cardinalitiam dignitatem ;
3.0 Coram delegato ab Apostolica Sede, promoti ad
sedem episcopalem etiam non residentialem, vel ad re-
gimen Abbatiae vel Praelaturae nullius, Vicariatus
Apostclici, Praefecturae Apostolicae ;
4.0 Coram Capitulo cathedrali, Vicarius Capita I aris ;
5.0 Coram loci Ordinario eiusve delegato et coram
Capitulo, qui ad dignitatem vel canonicatum promoti
sunt;
6.° Coram loci Ordinario eiusve delegato et coram
aliis consultoribus, assumpti ad omcium consultoruxn
dioecesanorum ;
7.0 Coram loci Ordinario eiusve delegato, Vicarius
Generalis, parochi et ii quibus provisum fuit de bene-
485
►ogle
Original from
UNIVERSITY OF WISCONSIN
486 ADMINISTRATIVE LAW
ficiis quibusvis, ctiam manualibus, curam animarum
habcntibus ; rector, professores sacrae theologiac, iuris
canonic! et philosophiae in Seminariis, initio cuiuslibet
anni scholastici vol saltern initio suscepti muneris; om-
nes promovendi ad ordinem subdiaconatus ; librorum
censures, dc quibus in can. 1393; sacerdotes confessio-
nibus excipiendis destinati et sacri concionatores, ante-
quam facultate donentur ea munia exercendi ;
8.° Coram Ordinario eiusve delegato Rector Uni-
versitatis vcl Facultatis ; coram Rectore vcro Universi-
tatis vcl Facultatis eiusve delegato, professores omnes
in Universitate seu Facultate canonice erecta, initio
cuiusque anni scholastici vel saltern initio suscepti mu-
neris ; itemque qui, periculo facto, academicis gradibus
donantur ;
g.° Coram Capitulo vel Superiore qui eo9 nominavit
eorumve delegato, Superiores in religionibus clericali-
bus.
§ 2. Qui, priore dimisso, aliud ofneium vel benefi-
cium aut dignitatem etiam eiusdem speciei consequun-
tur, rursus debent fidei professionem emittere ad nor-
mam huius canonis.
The profession of faith was generally connected with
the oath of obedience imposed on prelates since the Xllth
century, especially on those immediately subject to the
Holy See.1 The Pope himself used to send a kind of pub-
lic profession to the patriarchs of the East soon after his
accession to the papal throne 2 ; and documents of the
Vllth century testify that a public profession of faith was
made by the Pontiff on the occasion of his election or cor-
"-.
lCfr. c. 4, X, I, 6; c 13. X, I. 2Cfr. Reg. Greg. I. ed. Ewald-
3j; c. 4, X, II, 34. The formula Hartmann, I, 3, jS, 39, 438, 448.
for the Italian bi'shopi in Sicbel.
Liber Diurnus, form 73, 75.
§le
, ,1,., " riginal from
UNIVERSITY OF WISCONSIN
CANON 1406 487
onation.8 The Council of Trent established substantially
the present discipline, and later decrees specified more
closely the persons who had to make profession of faith*
The present prescribed fortn is contained in our Code and!
must be followed always. Besides this profession, there
is no special oath prescribed iu the Code, and therefore
the oath demanded by Pius X in the " Sacrorum Antisti-
tttm" (Sept. 1, 1910) would be abolished (according to*
can. 6, n. 6) had not the Holy Office since declared that
the Antinodernist Oath continues in force until the Holy
See expressly abrogates it.5 Our canon deals only with
the profession of faith, which, according to § I, must be
made by the following ecclesiastics :
i.° By all those who attend a general or particular
council or diocesan synod with the right to cast either an
advisory or a decisive vote. These must make their pro-
fession of faith before the presiding officer or his dele-
gate; the presiding officer himself before the synod or
council.
2.0 Newly created cardinals must make profession of
faith before the Dean of the Sacred College, the first
in rank among the cardinal priests and deacons, and the
Camerlengo of the Holy Roman Church.
3.0 Bishops, residential as well as titular, Abbots or
Prelates nullius, Vicars Apostolic and Prefects Apostolic*
before the papal delegate.
4-° The Vicar Capitular before the cathedral chapter.
Since in this country the consultors supply the cathedral
chapter (can. 427), our diocesan administrators must
make their profession of faith before the consultors as a
body.
• Wcrnz, 1 1.'.. Decret, III, n. 14, Nov. 13, 1504; S. C (*.. Jan. ao»
P- 15 f- 1877 (.Cell. P. F„ n. 1464).
« Trid., Sett. 34, c 1, 12, Dt ft S. O., March 22, 191B {A .--p.
Ref., PiuB IV, " Ininnctum Nobis," S., X, X36.)
ioogle
,.,;]» Original from
UNIVERSITY OF WISCONSIN
488 ADMINISTRATIVE LAW
5.0 Those who have been promoted to a dignity or can-
onicate must make their profession of faith before the
local Ordinary or his delegate, and at the same time
before the chapter. We say: " at the same time," for if
the bishop or his delegate (who propter decentiam should
be an ecclesiastical dignitary) is not present when the
profession is made before the chapter, it would have to
be made again.0 There cannot be any doubt that canons
of collegiate chapters, too, are now obliged to make the
profession of faith before they take possession of their
office or benefice.7
6.° Diocesan constUtors must make their profession of
faith before the local Ordinary or his delegate and, at the
same time, before the other consultors, who should there-
fore meet together with the bishop in a convenient place,
— the cathedral or another church, the episcopal resi-
dence, or a priest's house.
7.0 The following must make profession before the
local Ordinary or his delegate: (a) the vicar general;
(b) pastors3 and those provided with a benefice (even
though manual only) to which the care of souls is at-
tached; (c) rectors of seminaries and professors of sa-
cred theology, canon law, and philosophy, at the begin-
ning of each scholastic year," or at least when they assume
office; (d) those about to be ordained subdeacons; (e)
the censors of books, as mentioned in can. 1393; (f) all
priests who are to act as confessors or preachers, before
they are given their appointment or faculties. Under this
«S. C. C, Jan. 25, Feb. 9, 17.26, faith on the Hay of installation
ad III (Richter, Trid., p. 353, before the people; S. Rit. C, July
n. 19)- Mi i»55 {Dec, Auth., n. 30.15).
7 Although the decision just • This rule might alio be observed
Quoted (ad I) would exempt them, concerning the Antimodemist oath,
yet can. 405, 8 2, requires it. for it appears very awkward — to
B See can. 461 ; pastors arc not say the least— to repeat it every
obliged to make this profession of year.
Go >gle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 1406
489
heading, no doubt, also come our assistants or curates, and
the confessors and chaplains of nuns10 and religious in-
stitutions.
8.° The rector of a university or faculty must make his
profession of faith before the local Ordinary or his dele-
gate ; all the professors of a canonically established uni-
versity or faculty, before the rector at the beginning of
each scholastic year, or at least when they assume the
office of teaching; the same rule applies to all those who
receive academic degrees, after they have passed their
examinations. Academic degrees, in the proper sense, are
the licentiate and the doctorate; the baccalaurate is re-
garded only as a stepping-stone to the former. The time
for making the profession of faith for such graduates is
between the examinations and the ceremony of conferring
the degree. The profession may most properly be made
in the chapel or church, before the staff, board, or faculty
of the university, and in presence of the students, or in
the aula academica before the rector and some professors.
9.0 Superiors of clerical institutes must make their pro-
fession of faith before the chapter or the superior who
has appointed them Thus an abbot should make it be-
fore the president or vice-president of his congregation
and the monastic chapter.11 If the superior is appointed
by a higher one, this latter, or his delegate, should receive
the profession.
§ 2 requires that t\\e profession of faith be repeated,
according to the rules prescribed in § 1 of this canon,
whenever one assumes a new office, benefice or dignity,
after giving up the former, even if the new office is of the
same species. If a canon or dignitary of a cathedral
10 Sec can. 529.
11 The profession of faith is not
to be identified with the iuromtn-
tum at the benedictio abbot is; cfr.
Pontif. Rom., j. h. I.
jle
Original from
UNIVERSITY OF WI5C0NSI
c
490 ADMINISTRATIVE LAW
church obtains a new benefice, office, or dignity in the
same cathedral (or collegiate) church, he must renew his
profession of faith ; and if the change should occur during
the vacancy of the episcopal see, the renewal must take
place before the vicar-capitular and the chapter.18
This rule also applies to pastors who obtain another
parish in the same diocese.
Can. 1407
Obligation! fidei professionem cmittendi non satisfa-
cit qui earn per procuratorem vcl coram laico emittit.
Can. 1407 declares a profession of faith made by
proxy or before a layman invalid. The validity of such
an act had been sustained by canonists of note, such as
Navarrus, Sanchez, Barbosa, Reiffenstuel, and Boekhn;
but the S. C. C. was of contrary opinion, and its view is
here espoused.13 Tin's is so true that ifr for instance,
a prelate or canon had made his profession before the
Cardinal Vicar of Rome, he would nevertheless have to
renew it upon his return to the benefice.
A layman cannot validly receive a profession of faith
because he lacks spiritual power.
Can. 1408
Reprobatur quaelibet consuetudo contra canones hu-
ius tituli.
Every custom contrary to the canons of this title
(XXIV) is hereby reprobated.
What we said under can. 1356, § I, also applies here.
12 S. C. C. 1595. 1613 (n. 19); 13 S. C. C. Jan. 25. Feb. g. 1726.
Nov. 23, 1630 (Richter, /. r. n. ad II (Richter, I, c„ 19).
32).
oogle
v ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
PART V
BENEFICES AND OTHER NON-
CORPORATE ECCLESIAS-
TICAL INSTITUTIONS
Part V treats of a subject which was once of great im-
portance for the Church at large and, therefore, lavishly
discussed by canonists. We can limit ourselves to a few
observations.
The term benefice, taken from the Germanic law, sig-
nifies a grant, especially of real estate or landed property,
to subjects or vassals in recognition of services rendered.
The practice dates back to the Vth century, and benefices
were sanctioned as a permanent source of ecclesiastical
revenue by civil and ecclesiastical law. The ecclesiastical
benefice arose from the distribution of clerical support,
which was formerly held in common, under the super-
vision of the bishop. The bishop was supposed, through
his deacons, to distribute all the voluntary offerings into
four, or three, parts, one portion of which was especially
assigned for the maintenance of the clergy. With the
increase of country parishes and the growth of ecclesiasti-
cal holdings, especially in land, it was but natural that the
bishops should grant to the country clergy a certain por-
tion of the land destined for their support.1 This appor-
1 Concerntnr England, ie* Lin- 1858. pp. 16a ff. on benefices in
gard, History and Antiquities of general; see Thomauin, Vetus ti
the Anglo-Saxon Church, ed. 2, Nova Eceles. Discipline circa Bent-
491
►ogle
Original fro m
UNIVERSITY OF WISCONSIN
492
ADMINISTRATIVE LAW
c
tionment was made upon a precaria or petition presented
by the clergyman concerned, which had to be renewed
every time the place became vacant. When, in the Vlth
century, the revenue or grant became legally attached to
the church itself, the precaria was turned into a perma-
nent title or claim, or was attached to the property and
church served by the respective cleric.
A similar development is noticeable in the property
and revenues of cathedral churches. When the canons
ceased to live in common, about the Xth century, each re-
ceived from the common stock (massa communis) a
share, which was called praebenda. When the so-called
secularization set in the ecclesiastical benefice did not lose
its character of a benefice, but was distributed in the
form of a yearly salary from the government. Thus it is
still in Italy, where the pastors, and canons, and all other
priests acknowledged by the State receive their income
from the public treasury.
In the U. S. benefices are almost unknown. A solitary
example in New Orleans figured as a notable exception
in the decrees of the Second Plenary Council. A few
parochial benefices are found in the province of San
Francisco. In England, also, benefices are the exception,
but in Canada they are more common.2
ficia, 1 688; N. Garcias, Tractatus
de Bencficiis, 1636: P. Lewienius,
Forum Beneficiale 1742; U. StuU,
Geschichte dtj Kircht. Beneficial-
ncjcns, 1895; Idem, Die Eigen-
kirche, 1895; and the comment*-
tors on X. Ill, 5.
2 Sec Cath. Encycl., II, 474; as to
Canada, see Pouliot, Le Droit
Faruisiialc, 1 g 1 E .
gle
Original from
UNIVERSITY OF WISCONSIN
TITLE XXV
ECCLESIASTICAL BENEFICES
definition
Can. 1409
Beneficium ecclesiasticum est ens iuridicum a com-
pctentc ecclcsiastica auctoritatc in pcrpctuum consti-
tutum scu erecturn, constans officio sacro ct iurc perci-
piendi reditus ex dote officio adnexos.
A benefice is a juridical entity permanently established
or erected hy competent authority, and consisting of a
sacred office and the right of receiving the revenues from
the endowment attached thereto.
Ens iuridicum is the genus of all institutions, with or
without corporate character, having a legal foundation.
We may say that the material element, the beneficium
proper, is personified, inasmuch as it is presented as the
subject of rights and duties. It may also be called a ficti-
tious person, but without personal rights. It is the end
(finis) alone that specifies these rights, and therefore be-
comes, as it were, the subject of them. The end or pur-
pose of a benefice is spiritual, vie, the sacred office, and
the revenues are granted for the sake of the service one
renders {bcncficium propter offtcium),1
A benefice is a juridical entity, because the ecclesiastical
law2 has, if not introduced, at least sanctioned the com-
1 C. 10, X, III, 1 ; c. 15, 6°, If 3. » /WA
493
Go >gle
Original fro m
UNIVERSITY OF WISCONSIN
494 ADMINISTRATIVE LAW
bination of two widely different elements, the material and
the spiritual. This connection could be effected only by
ecclesiastical authority, for the end being entirely spiritual,
it cannot be attached to any material object except by the
authority which controls the spiritual element, and this
is the Church.
The revenues of a benefice are granted on account of
the sacred office, but in order that they may be given, there
is need of a source or treasury from whence they may be
taken. This is the endowment (dos), which term has a
wide significance.
Can. 1410
Dotem benencii constituunt sive bona quorum pro-
prietas est penes ipsum ens iuridicum, sive ccrtae ct
debitae praestationes alicuius familiae vel personae
moralis, sive certae et voluntariae fidelium oblationes,
quae ad benencii rectorem spectent, sive iura, ut dici-
tur, stolae intra fines taxationis dioecesanae vel legiti-
mae consuetudinis, sive chorales distributions, ex-
clusa tertia earundem parte, si omnes reditus benefieii
choralibus distributionibus constent.
The various sources of ecclesiastical endowment arc:
i.° Property of any kind, movable or immovable,
owned by the benefice itself as a juridical entity or ficti-
tious person; for instance, a piece of land owned by a
a
church, in which case the owner is the church, not the
pastor, or the trustees, or the congregation ;
2° Contributions imposed on families or corporations,
such as tithes to be paid by the persons themselves (deci-
tnae personates), or on goods, produce, stock (decitnae
praediales, reales, animalium) \
3.0 Voluntary offerings of the faithful, which belong
*Ie
j , Original fro ni
UNIVERSITY OF WISCONSIN
CANON I4IC3
495
to the rector of the benefice, such as pew-rentr at least in
part, plate collections, and subscriptions ;
4.0 Stole fees, to be paid according to diocesan taxa-
tion or lawful custom; but never manual mass stipends,
as is clear from the text ;
5.0 Choir distributions, except the third part of the
same, if the entire revenue of the benefice consists of
such distributions. This provision is manifestly intended
for canons. Note that these revenues must be connected
with the office permanently (in perpetnum).
This quality was styled by canonists the obiectiva perpe-
tuitas of a benefice and constitutes an essential element of
the same, but no longer of a parish.8
What about our parishes? The conclusion is forced
tipon us that the elements of a benefice may also be found
in them. For there can no longer be any doubt that
when the three conditions pointed out by the Code and
by the decree of the S. C. Consist, of Aug. I, 1919, are
verified (vis., residence, endowment, and boundaries),
the rectors of such parishes are pastors. This would
mean at least objective perpetuity.
A doubt may reasonably be maintained concerning " na-
tional " parishes, because they are actually and almost
necessarily more or less subsidiary and fluctuating. On
the other hand, the ens iuridicum, as well as the purpose
of this quasi-corporate entity, are contained in every par-
ish. Besides, since our Code has considerably enlarged
the notion of endowment, it is almost impossible to deny
the character of benefices to our parishes. Yet a solid
doubt remains as to the permanent and stable character of
a separate or distinct juridical entity.
a Tbc law of Justinian (Cod. I, the church was dedicated was the
a) luppoied that the Saint to whom quaai-proprietor.
►ogle
Original from
UNIVERSITY OF WISCONSIN
496 ADMINISTRATIVE LAW
—
DIVISION OF BENEFICES
N
Can. 1411
There are different kinds of ecclesiastical benefices, to
wit:
i.° Consistorial benefices, i. e., such as are bestowed in
consistory (now-a-days chiefly prelatures with dignity) ;
all others are called non-consistorial ;
2.0 Secular benefices are those which may be claimed
by the secular clergy, who are, by reason of legal presump-
tion, entitled to all benefices established outside a church
or house of religious, even to those which are doubtful.
But if a lawful custom or the will of the founder reads
differently, there can be no doubt. Religious benefices
are those existing in the churches or houses of relig-
ious, as well as those existing outside these churches or
houses that have been given to religious by lawful cus-
tom or the will of the founder.
3.0 Double or residential are those benefices which re-
quire residence in addition to service. Those which de-
mand no permanent residence are called simple or non-
residential.
Here it may be noted that a somewhat different char-
acteristic is assigned to double benefices, because they are
said to have the care of souls or jurisdiction attached.
However, since these latter functions certainly require
residence, it was logical to draw the distinction from this
obligation.
4.0 Manual, temporary, or removable are those benefi-
ces which are bestowed subject to the will of the ap«
pointer ; perpetual or irremovable those which are not only
themselves perpetual, but have an incumbent who cannot
be removed at will.
F
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1412-1413
497
5.0 Curata are benefices that involve the care of souls.
They arc sometimes united with simple benefices which
oblige the holder, for instance, to recite the office or to
say Mass in some chapel or on a certain altar.
Can. 1412 and 1413
The following do not go by the name of benefices in law,
although they may resemble benefices :
i.° The office of parish vicar when not erected forever;
2° Lay chaplaincies not established by competent eccle-
siastical authority, that is to say, founded by lay persons
from their own money with the obligation of saying Mass;
3.0 The office of coadjutor, with or without the right of
succession ;
4.0 Personal pensions ;
S-° Temporary grants of income made from the prop-
erty of a church or monastery to an ecclesiastic on condi-
tion that if he looses his claim, the revenues shall revert
to the church or monastery.
Canons 147-195, unless the contrary is manifest, apply
only to non-consistorial benefices that are benefices in
the proper sense of the term, for these canons treat of
appointment to, and loss of, offices.
>ogIe
Original from
UNIVERSITY OF WISCONSIN
CHAPTER I
i
ESTABLISHMENT OR ERECTION OF BENEFICES
competent authority
Can. 1414
CI
I.0 Consistorial benefices are erected by the Apostolic
See alone,
2.0 Besides the Roman Pontiff, the local Ordinaries can
establish in their respective dioceses, non-consistorial be-
nefices, with the exception of dignitaries of cathedral and
collegiate chapters (can. 394, § 2).
3.0 The Vicar-General needs a special commission
from his Ordinary for establishing a benefice.
4.0 A Cardinal may erect non-curate benefices in his
own title or diaconia, unless the church belongs to exempt
clerical religious.
requisites of erection
Can. 1415-1418
These four canons sum up the conditions required for
the lawful erection of a benefice, viz., the endowment,
the cooperation of the persons concerned, and the neces-
sary document; can. 141 7 refers to conditions in the strict
sense.
The endowment (dos) must be stable, viz., prospec-
498
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANONS 1415-1418
499
tively durable and sufficient for the maintenance of the
building, the divine worship, and the ministers.1
If the endowment is made in specie or cash, the Or-
dinary should, in union with the board of administration,
see to it that the money is safely invested in interest-bear-
ing property or titles, i. e., stocks or bonds.
It is not forbidden to establish a parish or quasi-parish,
even if a sufficient endowment is not immediately avail-
able, provided it can be reasonably foreseen that the neces-
sary support will be forthcoming.
Can. 1416 rules that, before a benefice is erected, those
who are interested in its erection should be invited and
heard, to wit, the parishioners, and others who may have
to contribute or who will probably suffer a detriment.
But the omission of this formality does not invalidate the
establishment of a benefice or parish.*
Can. 1417 permits the founder to lay down certain con-
ditions in the charter with the consent of the Ordinary,
i. e., the diocesan bishop or the superior of exempt clerical
religious if the benefice is to be a religious one. These
conditions may be contrary to common law, but they must
be reasonable and compatible with the nature of the
benefice. Thus, for instance, the founder may stipulate
that the holder of the benefice must be of a certain nation
or family,8 or the youngest among a certain group. This
may contravene the common law requiring a certain age;
yet the law in our case upholds the will of the founder.*
However, if a stipulated condition would be subversive
of ecclesiastical discipline, or derogatory to divine worship,
or contrary to sound morality, it would not bind.5 Im-
1 Cfr. c. 9, Dist. 1, ic cons.;
c afi. X, III. 5: c. 1. X. III. 20.
2 Cfr. c. 3. X, III. 48.
8 Thii was not infrequcnUy done
in monastic foundation! in Ireland;
sec Bury, Life of St. Patrick, 1905,
P. 174 ff.
4 Reiflenstucl, III, tit V, n. no.
6 A comugatus is unfit, and hence
this condition would be invalid; S.
oogle
Original from
UNIVERSITY OF WI5C0NSI
5oo
ADMINISTRATIVE LAW
possible conditions would be looked upon as not existing.
Concerning irregular persons mentioned in the conditions,
a distinction should be made: if the irregularity is not
plainly against the honor of the sacred ministry and is,
as a rule, dispensed from by the Holy See, we believe that
a dispensation should be asked for, provided the candi-
date is otherwise fit. For to install unfit candidates
would be against the nature of an ecclesiastical benefice.
If the irregularity is great and one not easily dispensed
from, the condition should be treated as impossible.
Conditions once accepted cannot be validly suppressed
or changed by the local Ordinary, unless the change be
favorable to the Church, and even then only with the con-
sent of the founder or patron if the benefice is one of
advowson.6 This rule also holds good if the condition is
added that the benefice or beneficiary is not bound to
assume other obligations, for instance, preaching, hearing
confessions, etc. In this case the Ordinary has no right
to compel the beneficiary to accept such obligations.
Can. 1418 requires for the establishment of a benefice a
legal document, in which the place of the benefice is desig-
nated, and the endowment, rights, and obligations are de-
scribed. Such a paper must be drawn up by the eccle-
siastical authority, in our country with the cooperation of
a notary public.
C. C, Sept. 20, 1727; Aug. 19,
1730 (Richter, Trid.. p. 443) ; Santi-
Leitner, 1898, III, tit. 5. n. 4°.
• RcitTcnstucl, III, 5, n. Ill fi.
oogle
Original from
UNIVERSITY OF WISCONSIN
-
-
CHAPTER II
UNION, TRANSFER, DIVISION, DISMEMBERMENT, TRANSFOR-
MATION, AND SUPPRESSION OF BENEFICES
UNION
Can. 141^-1420
1°. A union of benefices is called extinctiva, or per con-
fusionem, when out of two or more suppressed benefices
an entirely new one is created, or when two or more bene-
fices are combined with a third so that they cease entirely
to exist, **. e., as a juridical entity. In both cases the new
benefice assumes all the rights and obligations of the sup-
pressed or united benefices. However, if these rights and
obligations should conflict, only the more substantial and
favorable ones are to be retained.
20. A union is called aequo principalis if two or more
benefices, though united, remain as before, neither one be-
coming subordinate to the other. In this case each bene-
fice retains its nature, rights and obligations, but one and
the same cleric may hold titles to all. Two independent
dioceses held by one and the same bishop would afford an
example of such a union (e.g., Viterbo-Aoscanella).
Two dioceses thus united may hold their synods cither
separately or together, have two vicars-general, distinct
revenues, feasts, etc.1 The same rule applies to two par-
1 S. C. C, Jan. 11, 178J (Richter, Trid., p. 35 £.).
501
>3,c
Original from
UNIVERSITY OF WI5C0NSI
5o2 ADMINISTRATIVE LAW
ishes united aeque principaliter; — their boundaries re-
main distinct, so that marriages must be performed in the
respective parish churches, etc. There is no overlapping
in this case, but one and the same pastor attends to both
parishes and holds the titles to them.
3.0 Minns principalis is a union per sitbiectionem or
per accessionem, in which the several benefices remain
distinct, but one is made subordinate or accessory to the
other. In this case the accessory benefice follows the
principal one, upon which it depends, so that the clergy-
man who obtains the principal, eo ipso receives the acces-
sory benefice, and is bound to comply with the obligations
incumbent on both. No doubt this is the meaning of the
term subsidiary parishes or chaplaincies, which the S.
Congregation had in view when it directed our American
bishops to create such within the boundaries of existing
parishes whenever lack of endowment or shifting of the
population do not permit the erection of new parishes.2
~
transfer, division, dismemberment, etc.
Can. 1421
A benefice is transferred when its seat, — for instance,
a chapel or church, — is changed from one place to an-
other, whilst the benefice remains the same as to its nature,
rights, and obligations.
A division of benefices is made if two or more benefices
are created out of one; this is also applicable to our
parishes.
Dismemberment takes place when a part of the terri-
tory or the revenues belonging to one benefice is taken
away and united to another benefice, or to a charitable or
ecclesiastical institution, as, for instance, a seminary.
2 S. C. Consitf., Aug. 1, 1919 (Eccl. Rtv., VoL 61, p. 551 f-)-
;Ic
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1422-1423
503
Transformation is a specific change of benefices, for
instance, if non curata would be turned into curata, or
a collegiate into a cathedral benefice.8
Suppression is the extinction of a benefice ; this cannot
be lawfully done by the civil government.
Can. 1422
The extinction, suppression, and dismemberment of
benefices, when the revenues are withdrawn and no new
benefice is erected ; the union, whether aeqxie or minus
principalis, of a religious with a secular benefice, or vice
versa; and the transfer, division, and dismemberment of
benefices belonging to religious, are reserved to the Apos-
tolic See.
rights of the local ordinaries
Can. 1423
§ 1 and § 2. Local Ordinaries may, for reasons of
necessity or great and evident utility of the Church, either
aeque or minus principaiiter unite parish churches with
one another or with non-curate benefices. However, a
unto minus principalis of a parish with a non-curate bene-
fice must be made in such a manner that the latter becomes
an accessory to the parish.
This union cannot be performed by the Vicar-Capitular,
on account of can. 436, nor by the Vicar-General, unless
he has obtained a special commission for that purpose.
§ 3 rules that such a union must be made for good (in
perpetuum), in order to avoid a cumulation or plurality
of benefices.4 Reasons of necessity or utility would be
a S. C. C, July 24, 187s iA, S. S„ IX, 8 ff.).
*Trid., Sen. ti, c. 5, D9 Ref.
jle
Original fro ni
UNIVERSITY OF WISCONSIN
504 ADMINISTRATIVE LAW
poverty, decrease of the population, the settling of quar-
rels, increase of divine worship, etc.6
Ordinaries may not unite a parish with the mensa of
the chapter or of the bishop, nor with a monastery or
church in charge of religious (this being reserved to the
Holy See), nor with any corporation, nor with cathedral
or collegiate dignities or benefices. However, they may
unite a parish with the cathedral or collegiate church if
the latter is located within the boundaries of the same,
but in doing so must provide that the parish revenues are
invested in the cathedral or collegiate benefice and the
actual pastor or his substitute is paid a decent income (the
congrua).
Can. 1424
Can. 1424 forbids Ordinaries to unite either curate or
non-curate benefices against the will of the actual incum-
bents, if the latter suffer damage by that union. It also
forbids them to unite benefices of advowson (iurispatro-
natus), either lay or ecclesiastical, with benefices of free
collation, without the advowee's consent, and to unite
benefices of one diocese with such of another diocese, even
though both are united aeque principaiiter and governed
by the same bishop. Finally it forbids Ordinaries to unite
exempt benefices, or such as are reserved to the Apostolic
See, with others. The reason for this prohibition lies
partly in the danger of alienation, partly in the confusion
of rights and subsequent litigation.
B Wcrnz, lus, Decret., II, n. 271, p. 37a.
5 'rtrhnltf Original from
lOOgK UNIVERSITY OF WISCONSIN
CANON 1425
505
religious benefices
Can. 1425
This canon distinguishes between unions semiplcno iure
and plena iure, made by the Apostolic See. The latter
term, according to can. 1422, must be understood of per-
petual union, not merely ad tentpits, for a temporary
union may be made by the Ordinary, if it is only partial.
The law is :
§ 1. If a parish has, by papal rescript,8 been united to
a religious house as to temporalities only, the religious
house is entitled to the revenues, and the superior must
present to the local Ordinary a member of the secular
clergy, who is then appointed pastor and receives his
salary from the religious house. This arrangement was
sometimes made to support religious houses or collegcs.T
Note that the clergyman to be presented for appointment
must belong to the diocesan clergy and that he obtains
his spiritual jurisdiction from the local Ordinary, upon
whom he is entirely dependent as to pastoral rights. The
clergyman presented by the religious superior, if he has
the necessary qualifications, must be appointed by the
bishop, who would otherwise infringe upon the rights of
the religious.8
§ 2. If a parish is incorporated pleno iure with a re-
ligious community by the Holy See,8 the religious superior
may designate one of his subjects to take charge of the
same; but the local Ordinary has the right to subject the
appointee to an examination and to give him his canon-
fi Se« can. 45a.
8 S. C. C.f July 18. 176'.
H
TS. C. C, Sept, jo, 1727; Jan.
plurics (Richter. /. c, p. 53.
n.
30, 1740; Sept. 20, 1692 (Richtcr,
11 ff.).
Trid., p. 367, nn. 2 fi.)
9 See can. 456.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
506 ADMINISTRATIVE LAW
ical appointment.10 Besides, the pastor religiosus is sub-
ject to the jurisdiction, coercive power, and visitation of
the local Ordinary in whatever belongs to the care of
souls, as explained under can. 631.
transfer of secular parochial benefices
Can. 1426
For reasons of necessity, or great and evident utility,
Ordinaries may transfer the seat of a secular parochial
benefice to another place within the boundaries of the
same parish ; but other benefices they may transfer to the
mother church, or to another church of the same or a
nearby place, only if the church in which said benefices
were founded, has collapsed and cannot be restored. If
such a transfer has to take place, the altars or chapels
should, if possible, be erected in the church to which the
benefice was transferred under the same titles which they
had in the original benefice, and all the revenues and
burdens of the former church are transferred to the latter.
o
a
a.
division of parishes
Can. 1427
§ 1. Possunt etiam Or dinar ii ex iusta et canonica
causa paroecias quaslibet, invitis quoque earurn recto-
ribus et sine populi consensu, dividere, vicariam per-
petuam vel novam paroeciam erigentes, aut earum
tcrritoriurn dismembrarc.
§ 2, Causa canonica ut divisio aut dismembratio pa-
roeciae fieri possit, ea tantum est, si aut magna sit difn-
10 If the religiouR has not oh- C, Nov. 10, 1734 (Ricbter, /. c,
taincd this appointment, the bishop p. 54, n. 21).
may recall him at any time; S. C.
oogle
% ,!_,.. Original from
UNIVERSITY OF WISCONSIN
CANON 1427
507
cultas accedendi ad ecclesiam paroecialem, aut nimia
sit paroecianorum multitude quorum bono spiritual!
subveniri nequeat ad normam can. 476, § 1.
§ 3. Paroeciarn dividens, Ordinarius debet vicariae
perpetuae aut paroeciae noviter erectae congruani por-
tioncm assignare, servato praescripto can. 1500; quae,
nisi aliunde haberi queat, desumi debet ex reditibus ad
ecclesiam matricem quoquo modo pertinentibus, dum-
modo sufficientes reditus eidem matzici ecclesiae rema-
neant.
§ 4. Si vicaria perpetua aut nova paroecia dotetur ex
reditibus ecclesiae a qua dividitur, debet matrici hono-
rem deferre modo et finibus ab Ordinario praestituen-
dis; qui tamen vetatur baptismalem fontem matrici ipsi
reservare.
§ 5. Divisa paroecia quae ad aliquam religionem
iure spectat, vicaria perpetua aut paroecia noviter
erecta non est religiosa; pariter divisa paroecia iuris
patronatus, nova paroecia est liberae collationis.
It is evident that this canon refers not only to benefices
in the strictly canonical sense of the word, but also to par-
ishes and qua si-parishes. We say, this is evident, because
not only this canon, but also can. 476, § 8, expressly
mentions parishes. Hence this canon is law also in the
United States.
§ 1. Ordinaries may, for a just and canonical reason,
divide parishes of any kind by establishing a perpetual
chaplaincy or a new parish, or dismembering the territory
of such parishes ; and they may do so even against the will
of the rectors of the parishes, and without the consent of
the people.
This part of our canon should create no difficulty, since
the right of the Ordinary to divide or dismember parishes
.'le
Original from
UNIVERSITY OF WISCONSIN
5o8 ADMINISTRATIVE LAW
was established by the Decretals as well as by ihe Council
of Trent.11 However, there is a canonical hitch concern-
ing parishes which belong (pleno iure) to religious. Ac-
cording to can. 1425, § 2, such a parish is a " religious
parish," and can. 1422 strictly reserves the division and
dismembration of religious benefices to the Apostolic See.
Can. 1427 speaks of quaslibet paroecias, whilst can. 1422
uses quaelibet in speaking of division or dismembration.
Here, then, two canons seem to clash. However, we may
apply here the juridical axiom: " gencri per speciem dc-
rogatur'1 which finds its application whenever general
and specific terms occur 12 in the same law. Taken in
this light, the genus would be benefice, and the species,
parish. Consequently, the general rule of can. 1422
would suffer an exception as to parishes. This is prob-
ably the mind of the lawgiver, because Ordinaries with
regard to parishes have intentionem fundatam in iure.
This was also the guiding principle of that passage of
" Rotnanos Pontificcs" which refers to parishes in Eng-
land, subsequently applied to the U. S.,13 and does not
question the right of Ordinaries to divide parishes belong-
ing to regulars. The necessity of abiding by all the for-
malities was the real point under discussion, and the
Constitution decided that these are not strictly required
because the missions in England (and the U. S.) are not
parishes erected according to the rules of canon law.
From this it may be seen that the practice of the Roman
Court 14 gives free sway to our Ordinaries and those of
England (and other countries, too) in the matter of di-
viding or dismembering parishes of religious. However,
11 C. 3. X, III, 48; Trid., Sms. 13 May 8. 1B81; extended to the
ji, c. 4; Scss. 34, c. 13, De Ref. U. S. in 1885 (Co//. P. F„ u. 155a).
12 Borbo»a. Tractetus Varii, 14 See S. C. C, June »J. 1743
Axioma 107 (ed. Lugd., 1660, p. (Richter, Trid., p. 117, n. 5).
72 £-).
v , j , Original from
UNIVERSITY OF WISCONSIN
>gle
CANON 1427
509
since an incorporated parish of religious can only be ob-
tained by the Holy See (can. 452; can. 1425), it would
seem rather presumptuous for an Ordinary to proceed
to a division or dismembration without informing: the
Apostolic See. This seems at least a reasonable assump-
tion, especially since the boundaries of every religious
parish are accepted and sanctioned by the Holy See.15
§ 2. The sole canonical reasons for dividing or dis-
membering a parish are : great difficulty on the part of the
people to come to the parish church or impossibility of
properly attending to their spiritual needs because of too
great a number.
Note the expression " ea tantum " ; only the two reasons
mentioned are acknowledged as canonical. Hence a
desire to create more parishes within a city or diocese
cannot be considered a canonical reason for dividing the
existing parishes. The distance has been sometimes de-
scribed in Roman decisions lfl as of one or two hours (to
be walked, of course), sometimes as 1500 passus (about a
mile and a quarter), sometimes three Italian miles, some-
times simply a long and arduous way, especially if im-
peded by a torrent or river.
The phrase "too great a number" is relative; it means,
if the spiritual welfare of the faithful suffers because
there are too many souls to be taken care of. In 1905 and
1907 the S. Congregation i7 decided the case of a parish in
charge of the Capuchins, which numbered about 6,500
souls and was well taken care of, but divided by the Or-
dinary. The S. Congregation first refused to sanction the
10 This information, of course, be sufficient; S. C. C, March 28,
is not required ad validitatem.
16 S. C. C, June 22, 1743; Sept.
«7. "73*; Jan- *9, 1735- etc. (Rich-
ter, Trxd., 117, nn. 5 ff.); a dis-
tance of 30 miles would certainly
►ogle
1903 lAnul. Reel., XI. 1 16 ff.).
ITS. C. C, Jan. 21, 1905; July
a?. 1907 {Anal. Eccl., XIII, 23 ff.;
XV, 338 ff .) ; a legacy of 30,000
lire was promised to the newly
erected church.
Original from
UNIVERSITY OF WI5C0NSI
5io ADMINISTRATIVE LAW
decree, but new reasons advanced by the episcopal court
finally led to a ratification of the same. However, neither
the distance l8 from church nor the number 1B of parish-
ioners has ever been definitely settled by the Roman au-
thorities, and it would be futile, therefore, to try to deter-
mine either. Local circumstances must be considered and
the welfare of souls looked to as the supreme law. The
latter does not, however, demand that a flourishing con-
gregation, say of four or five hundred or more families
be broken up for the sake of a few " kickers " or to make
a vain display of parishes. The fact that old parishes
are sometimes loaded down with debts and new parishes
often require heavy sacrifices should be duly taken into ac-
count.20 The faithful should not be needlessly burdened,
especially in critical times such as ours. A parish with
300 or 400 families who live within a radius of about one
mile and a half with good roads or streets, and sometimes
street railways and automobiles, can easily be taken care
of by the pastor with the aid of one or two assistants and
certainly does not call for dismembration, unless perhaps
dangerous tracks, or factories, or undesirable quarters
would have to be passed by a considerable number of the
parishioners.
§ 3. The Ordinary, when he divides a parish, must as-
sign sufficient revenues or provide in some other way (see
can. 1500), for the new parish or chaplaincy. If no
other source of revenue is available to provide the new
parish with sufficient funds, these must be taken from the
CI
is A distance of one Italian mile pastor with his assistants to attend
has never been considered suffi- to properly; S. C C, Jan. a$, 1879
cient for dismemhration ; see Anal. {A. S. S.. XIII, 287 ff.)
Ecci, XIII, 17. 20 This reason was also advanced
is One parish had 26,000 souls in the petition mentioned above of
(= about 5,000 families), which 1905 and 1907,
number appeared too great for one
jle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 1427
5"
mother church, provided, however, that a sufficient in-
come is left to the latter. Of course, this holds also if
the new parish was detached from a religious parish.
Here it is not superfluous to remark that the accounts of
a parish in charge of religious should be kept strictly
separate from those of the monastery. If there are any
accrued funds, the salary to the pastor, as well as the
expenses for the upkeep of the church and divine wor-
ship must first be deducted, and if anything is then left,
the old parish is bound to share it with the newly erected
one.
But what if there are debts on the old parish? Here
the injustice of some divisions becomes apparent. As it
is entitled to a share of the revenues, the new parish has
to share also the debts," for it would be unjust to saddle
a debt which was calculated for 400 or more families, on
150 or even less.
§ 4. If the chaplaincy or new parish is endowed from
the revenues of the old, the latter, as the mother church,
is entitled to certain marks of honor, which should be de-
termined by the Ordinary, who, however, is not allowed to
reserve the right of the baptismal font to the mother
church. Sometimes a candle had to be offered, some-
times the baptismal water had to be gotten from the
mother church,22 but the latter practice is now forbidden,
and justly so, for a parish without a baptismal font is
badly handicapped. The bishop may decide what signs
of honor should be paid, for instance, a procession, an in-
vitation to preach, etc.
§ 5. A parish detached from one which belongs to re-
ligious, does not become a religious parish, and the relig-
21 See can. 1500, which confirms
what is said in the text.
32 S. C. C, Sept. ao, 1879; April
34, 1880 (A. S. 5., XIII, 398, 514
B.).
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
512 ADMINISTRATIVE LAW
ious may not claim it, but to obtain it need the recom-
mendation of the bishop and a papal indult."
■■
Can. 1428
§ 1. Locorum Ordinarii unioncs, translations, divi-
siones, dismembrationes beneficiorum ne faciant nisi
per authenticate scripturam, auditis Capitulo cathe-
dral! ct iis, si qui sint, quorum intersit, praesertim reo
toribus ecclesiarum.
§ 2. Unio, translation divisio, dismembratio facta
, sine canonica causa irrita est.
§ 3. Advcrsus decretum Ordinarii unientis, transfe-
rentis, dividentis aut dismembrantis beneficia, datur
in devolutivo tantum recursus ad Sanctam Sedem.
~
Can. 1428 mentions certain formalities which the local
Ordinaries must observe when they unite, transfer, di-
vide, or dismember benefices. One of these is that an
authentic document be drawn up, signed, and sealed with
the diocesan seal. The other formality consists in hear-
ing the advice of the chapter; or, with us, of the diocesan
consultors, which is to be given collegialiter, i. e., at a
meeting.2* Besides, the bishop must also summon all
those who arc interested in the transaction, CUT., the pa-
rishioners or their representative*, and especially the rec-
tors of the churches. However, if these formalities (viz.,
writing, obtaining the advice of the consultors, hearing
the parishioners and pastors) were omitted, it would not
affect the validity of the act.25
as Cfr. Leo XIII, Romanos (Wcrn*. /. c, II, n. J67, p. 367),
Pontifices, May 8, 1881; S. C. C, though in thi* country only the
Jan. 25, 1879, {A. S. S., XII, advice of the contultors and the
387 fl\). rector of the mission needed to be
» Formerly the consent of the obtained; Cone. Bait. Ill, n. 20.
chapter was required for validity aa Cfr, A. S. S., Ill, 396 ff.
oogle
■ t ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 1429
5*3
§ 2. A union, transfer, division, or dismembration
made without a canonical reason is invalid, because every
such act involves a change in the status of a church or ben-
efice, and is therefore a species of alienation which no one
inferior to the Supreme Pontiff can validly perform with-
out a reason.20 Therefore if neither the distance nor the
number of parishioners demands a division, it is invalid.
§ 3. If the Ordinary deems the reason just and canon-
ical, whilst the greater part of the congregation and the
old pastor think it unjustified, the union, transfer, divi-
sion, or dismembration takes effect, but recourse is open
to the Holy Sec. This recourse, however, is not properly
an appeal, and, therefore, does not suspend the effect of
the episcopal decree, but devolves the matter on the S. C.
Concilii."
pensions
Can. 1429
§ 1. Benefices quibuslibet nequeunt Ordinarii loco-
rum pensiones perpetuas aut temporarias imponere
quae ad vitam pensionarii durent, sed possunt, dum
beneficium conferunt, ex iusta causa in ipso collationis
actu exprimenda, eisdem imponere pensiones tempora-
rias, quae durent ad vitam beneficiarii, salva huic con-
grua portione.
§ 3. Benefices autem paroecialibus non possunt, nisi
in commodum parochi vel vicarii eiusdem paroeciae a
munere abeuntis, imponere pensiones, quae tamen ne
excedant tertiam partem reditus paroeciae, quibusvis
deductis expensis et incertis reditibus.
§ 3. Pensiones benefices sive a Romano Pontifice
tec. 8, X, III, 5.
ST C. 3, X, III, 48; Benedict
XIV, "Ad MiliUntir," March 30.
1743, is 11, 16, 3a; Leo XIII,
" Romano s Pontificei," May 8, i83i.
§le
Original fro ni
UNIVERSITY OF WISCONSIN
5H ADMINISTRATIVE LAW
sive ab aliis collatoribus impositae, cessant morte pen-
sionarii, qui tamen nequit eas alienare, nisi id expresse
concessum sit.
An ecclesiastical pension may be called an annual allow-
ance from an ecclesiastical benefice, granted by the compe-
tent authority either to its former holder, or to a stranger,
generally for some service rendered to the benefice itself.
or to the beneficiary, or at least to the church.
A pension is personal if paid by the ecclesiastical ben-
eficiary; real if incumbent on the benefice itself. If a
real pension is attached to a benefice in such a way that
not only the present pensionary, but after his death others
are entitled to the pension, it is a strictly perpetual pen-
sion, whereas one paid during the lifetime of the pension-
ary only is called relatively perpetual, and one paid during-
the lifetime of the beneficiary, although paid from the
benefice itself, is called temporary?*
§ i rules that the local Ordinaries may not impose on
any kind of benefice either perpetual or temporary pen-
sions, which last during the lifetime of the pensionary,
but may, when conferring a benefice, for a just reason to
be mentioned in the act of bestowal, impose a temporary
pension to be paid during the lifetime of the beneficiary,
provided, however, the latter's income is safeguarded.
§ 2. On parochial benefices the Ordinaries can impose
pensions only in favor of a pastor or substitute (coadiu-
tor) when he leaves his office (as rector or pastor emeri-
tus). But the amount of this pension shall never exceed
the third part of the entire parish revenues, after all ex-
penses and uncertain revenues have been deducted.
Note the expression " parish revenues" which is not
*.•-.
"-.
2B Traces of pensions are found after separate parish and canon's
in the acts of the Council Df Chalce- benefices bad been introduced;
ton, A. D, 431; they were increased Werne, I. c, II, n. jai, p. 43J-
►ogle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1430
5*5
synonymous with the w pastor's revenues." Hence in our
country only the pew-rent, plate and house collections,
sure subscriptions, and perhaps interest from money
loaned out would have to be considered. From these rev-
enues the current expenses for the pastor's salary and the
upkeep of the church, etc., may be deducted.
§ 3. Pensions imposed on benefices either by the Ro-
man Pontiff, or by other collators, cease with the death of
the pensioner, who, unless expressly empowered to do so,
may not alienate his pension.
than sfor m ation
Can. 1430
Benefices that have the cure of souk attached to them
cannot be transformed by the Ordinaries into such as have
no such charge, nor can religious benefices be changed
into secular ones, or vice versa. On the other hand, sim-
ple benefices may be changed into curate ones, provided
there be no express stipulation to the contrary on the part
of the founder.
gle
Original from
UNIVERSITY OF WISCONSIN
-
CHAPTER III
bestowal. of benefices
Can. 1431
The Roman Pontiff, being the supreme authority and
endowed with universal jurisdiction, may confer benefices
in the whole Church and reserve their collation to him-
self. This proposition is directed against the libelous
book of Eybel, which is full of invectives against the Holy
See from the point of view of the Febronian and Jose-
phinist schools.*
cardinals and ordinaries
Can. 1432
§ 1. Cardinals may confer benefices in their titular
churches or deaneries, and Ordinaries in their own dio-
ceses, because they have the priority or right in their favor
(habent intentionem fundatam in iure)*
§ 2. The vicar general, however, cannot confer bene-
fices unless he has received a special commission for this
purpose by his bishop. The Vicar-Capitular or Adminis-
trator, however, can confer parochial benefices, but only
lTbe book: Was ist der Papstf that the bishop in our case is re-
was put on the index, and Pius leased from proving his right, and
VI, Nov. 28, 1876, issued a special the burden of proving it against
Brief, " Super Soliditate "; see the bishop devolves on the plain
Denringcr, n. 1303. tiff or the one who disputes the
2 This is truly called a presump- bishop's right; see ReifFenrtueJ, II,
tioa in law, which has the effect tit. 23, n. 45.
516
>gle
Original from
UNIVERSITY OF WISCONSIN
CANONS I433-H35
517
according to can. 455, § 2, n. 3 ; other perpetual benefices
he may not confer at all, on account of can. 436.
§ 3. If the Ordinary does not make an appointment to
a vacant benefice within six months from the time when
the vacancy became known to him, the right of making the
appointment passes to the Apostolic See, unless (can.
458) special reasons permit a delay, and an administrator
is left in the place.
Can. 1433
Can. 1433 reserves the appointment of coadjutors to
beneficiaries, with or without the right of succession, to the
Apostolic See. But this reservation does not apply to the
temporary coadjutors and assistants mentioned in canons
475 and 476.
benefices reserved to the holy see
Can. 1434-1435
Benefices reserved to the Apostolic See cannot be val-
idly conferred by inferior prelates, for instance, bishops.
Besides all consistorial benefices and dignitaries in ca-
thedral and collegiate chapters (can. 396, § 1) the fol-
lowing are reserved to the Apostolic See, even though the
latter be vacant :
i.° All benefices, including curata, which become va-
cant by the promotion, resignation, or transfer of car-
dinals, papal legates, the higher officials (assessor, pre-
fect, secretary, subsccretary, regent) of the Roman Con-
gregations, tribunals and offices of the Roman Court and
the papal household, even though they be purely hon-
orary.
2.0 All benefices which, though founded outside the
GoogI
Original fro rn
UNIVERSITY OF WISCONSIN
~
518 ADMINISTRATIVE LAW
Roman Court, become vacant by the death of the bene-
ficiary in the city of Rome.8
3.0 All benefices in validly conferred by reason of
simony.
4.0 Finally all benefices in which the Roman Pontiff,
either himself or through a delegate, is interested for one
of the following reasons:
(a) Because he had declared the election to the benefice
null and void;
(b) Because he had forbidden the electors to proceed
to an election ;
(c) Because he had accepted the resignation of the in-
cumbent ;
(d) Because he had promoted, transferred, or deprived
the beneficiary of his benefice :
(e) Because he had given the benefice in commendam.
No manual benefices, or such of lay or mixed advowson
(iurispatronatus) are reserved, unless expressly stated.
As to the bestowal of benefices founded in Rome, the
particular laws in force there must be observed.4
a.
acceptance
Can. 1436-1437
No benefice can be validly conferred on a cleric who is
unwilling to accept it, or who docs not expressly declare
his acceptance of the same.
No one can bestow a benefice upon himself, because
the one who bestows and the one who accepts must be
different persons.5 This is true also of a clergyman
whose father holds a benefice.6 Hence, for instance, a
-
8 This is tort of Rcgula XIX of 5 C. 7, X, III. 7-
Ihe Cancellaria Apostolica. « C. 1$, X, III, 38; there is not
4 S. Pius V, '* IntolerabilU," June much danger of this, eacept in
», 1565. I 8- CAMS of advowson.
jle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CANONS 1438-1441
519
bishop cannot validly bestow a benefice of his own diocese
upon himself; an abbot cannot be a canon of a cathedral
or collegiate chapter, even though it be a simple canoni-
cate.7 Consequently, too, an abbot cannot confer upon
himself a parish benefice, nor could the bishop validly give
it to him, even though he has all the necessary qualities.
provision to be made for life
Can. 1438
All secular benefices must be conferred for life, unless
the will of the founder, or an immemorable custom, or a
special indult rules otherwise.
qualities of beneficiaries
Can. 1439
§ 1. No clergyman is capable of accepting or holding
several benefices, either in his own name, or in cotnmen-
dam (see. can. 156).
§ 2. Benefices, the obligations of which the beneficiary
cannot fulfil personally, as well as benefices of which one
suffices for the decent support of the incumbent, are in-
compatible.
NO DEDUCTIONS PERMISSIBLE
Can. 1440-1441
" Ecclesiastical benefices must be conferred without
diminution/' was the complete and authentic title of one
of the Decretals (III, 12), and the commentators com-
prised under this heading the imposing of new burdens,
TS. C C, March 3, 1880 (A. S. S., XIII, 461).
oogle
Original from
UNIVERSITY OF WISCONSIN
520 ADMINISTRATIVE LAW
division, dismemberment and suppression of benefices.8
Our canon exclusively intends the first only, viz., the
imposition of new burdens. These may be of two kinds :
spiritual and temporal. By law, then, the bishops may
not impose new obligations which would burden either the
office holder or the benefice, if these obligations are not
mentioned in the original grant.
Such new burdens would be the duty of performing
pastoral work, saying more Masses than required, etc.,
etc. No such burdens may be imposed, although the
beneficiaries may be asked to assume them, if neces-
sary.*
Temporal obligations would be the giving up of part
of the revenues, of charges for certain purposes, etc.
All such are forbidden and savor of simony.
Can. 1441 forbids and reprobates as simoniacal all de-
ductions made from the revenues, all compensations and
payments in the act of preferment, no matter whether
they accrue to the appointer, or to the advowee, or to
others."
ON WHOM BENEFICES MAY BE CONFERRED
-1
Can. 1442
Secular benefices may be conferred on secular clerics
only, religious benefices only on religious of the institute
to which the benefice belongs.
Hence a benefice belonging, e.g., to the Franciscans
should not be conferred on a Benedictine, and vice versa.
This rule also holds with regard to prelacies,11 and must
SCfr. Engel, III, ia, n. 1 I. 41. 44. V, j; Trid.. Scsi. 24. c. 14,
0 Wemz, I. t», II, n. ja», p. d< Rtf.
430 f. 11 C i, Clem. I, 3.
10C. un. X, III, ia; ec. 8, 9,
■■d by Google
j ^ Original from
UNIVERSITY OF WISCONSIN
CANONS 1443-1446
5«
be observed when a higher superior confers a benefice
by devolutive right.
12
installation
Can. 1443-1445
No one shall take possession of a benefice conferred
upon him, on his own authority, or before he has made
profession of faith, if the benefice requires such profes-
sion. In regard to non-consistorial benefices, the right
of installation belongs to the local Ordinary, who may,
however, delegate another ecclesiastic, — generally the
rural dean.
The manner in which installation should take place is
prescribed by particular — for instance, diocesan — stat-
utes, or by custom, and the prescribed rite must be ob-
served unless the Ordinary has granted a written dispen-
sation, in which case the dispensation takes the place of
the formal installation.
The installation may be performed by proxy if a spe-
cial mandate to that effect has been issued by the ap-
pointee.
PRESCRIPTION and titulus coloratus
Can. 1446
If a cleric who possesses a benefice is able to prove
that he has had peaceful possession of the same for three
full years and in good faith, the benefice is his by prescrip-
tion, even though his title was invalid, provided, however,
that no simony was committed.
Concerning the application of prescription to benefices.
there was a controversy among canonists u ; our Code has
12 C. un. Clem. I, 5. 18 Cfr. Retffenatnel II, 26, n. 35.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
522 ADMINISTRATIVE LAW
adopted the affirmative view, under certain conditions,
vis. :
(a) The possession must have been peaceful, with
no suit pending;
(b) This peaceful possession must have lasted three
full years, without interruption;
(c) The possessor must have been honestly ignorant
of the fact that he held the benefice unlawfully; and
(d) No simony must have been committed either by
him or his proxy.
All this the incumbent has to prove by witnesses or doc-
uments. If he succeeds, the benefice is his, even though
his original title was doubtful for some reason, for in-
stance, that he was appointed by the administrator or
vicar-general against the common law. This benefit is
granted to avoid unnecessary litigation.1*
A LITIGANT BENEFICE
c
Can. 1447
To understand this canon it is necessary to know what
a petitory and a possessory trial is. A petitory trial turns
about the question whether a title or claim is just and
valid, whilst in a possessory trial the plaintiff claims the
object or right, or asks that he be not disturbed in its
possession. A " peacefully possessed benefice n is one
that is not disputed, either as to title or as to actual posses-
sion (de iure et facto possessum).
The text rules that the one who claims a benefice that
is peacefully possessed by another, on the supposition or
■
pretence that it is vacant, must clearly state in his peti-
tion the name of the possessor, how long he has been in
possession, and the particular reason why he has no right
14 C. un. Clem. II, 6, but only ad argumenti instar.
G\ Original from
OOglt UNIVERSITY OF WISCONSIN
D
CANON 1447
523
to the benefice. But the benefice cannot be conferred
upon the plaintiff or claimant before a petitory trial has
cleared up the title. For the general rule is that only ben-
efices which are vacant by right and in fact (de iure et
facto) can be validly conferred.
gle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER IV
IUSPATRONATUS OR ADVOWSON
The iuspatronatus arose from a transfer of landlord-
ism, plus feudalism, to ecclesiastical soil. The Church
accepted the protection of the civil power as well as that
of laymen who should have been her patrons (advocati,
hence advowson), but frequently played the part of op-
pressors and robbers. In course of time certain spiritual
rights were granted to lay benefactors,1 chief among them
the right of presenting candidates for ecclesiastical ben-
Of
ences and some honorary and material privileges. If the
balance betwen advantages and disadvantages accruing to
the Church from advowson were fairly drawn, we believe
the latter would exceed the former. Hence we need not
be surprised that the Code is not very enthusiastic in this
matter, as is apparent from can. 1449, which defines, di-
vides, and limits the iuspatronatus.
c
m
Can. 1448
B
The iuspatronatus is the sum total of the privileges and
obligations that belong, by ecclesiastical authority, to
Catholic founders of churches, chapels, or benefices, and
lA Latin verse comprises the 401 pp. There is do mention of
reasons for admitting advowson the iuspitronatus in the Ada Cone.
thui: Palronum fociunl dos, aedi* Bait. Ill; Cone. Bail. It (n. 184)
ficolio, fundus; see the commen- according to Prov. Ball. J (1839)
tators on the Dccretats III, 38; rejects the iuspatronatus in this
alio Wernz, I us Decret., HI, n. country (Coll. Lac. Ill, p. 27).
524
►ogle
£ " ^ •. %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 1449
525
also to such as have obtained a canonical title from the
founders.
The ecclesiastical authority alone can connect a mate-
rial right or favor with a spiritual right, such as presen-
tation radically is. Whether this is done explicitly or im-
plicity is irrelevant.
The founder must be a Catholic, as shall be seen from
can. 1543, although it must be confessed that in Hun-
gary, even Jews tried to obtain the iuspatronatus. The
term founder must not be too strictly interpreted. It in-
cludes not only the original or first founder, endower,
maintainer, but also those who have restored a church,
chapel, or benefice.
" Qui ab illis causam habent," means that the iuspatro-
natus may be obtained not only by a direct privilege or
prescription, but also by succession, donation, exchange,
and sale ; not directly, but indirectly, by reason of another
right. That obligations correspond to the privileges is
evident, because these two terms are always correlative.
Can. 1449
The iuspatronatus is real if attached to an object or
thing, as, for instance, real estate, or a building, or an
office. It is personal if it inheres in a person. It is ec-
clesiastical if the title itself is ecclesiastical, for instance,
a church, a prebend, an office. It is laical (lay patronage)
if the title is secular, for instance, a civil office or right like
that of inheritance. It is mixed if it springs from both
an ecclesiastical and a civil title, for instance, if a pastor
has the right of presentation as pastor and as a member of
a certain family. It is hereditary if it is obtained through
succession or by last will. It is a family patronage if it
remains among, and is limited to, the next descendants.
oogle
Original from
UNIVERSITY OF WI5C0NSI
526 ADMINISTRATIVE LAW
It is a clan patronage if it extends to all the descendants
comprised by the name gens, tribe, or clan, for instance,
all the O'Rourkcs. It is mixed if one or more of the
above-mentioned titles concur.*
Can. 1450-1451
s
No patronage can be established validly on any title
in future. Local Ordinaries may, however,
(a) Grant to those of the faithful who build churches
or found benefices, either entirely or in part, a claim to
spiritual suffrages in proportion to their generosity, either
for a certain time, or forever; for instance, a founded
Mass or office ;
(b) Admit the foundation of a benefice on condition
that for the first time the founder himself, if he is a
clergyman, be appointed to the benefice or another clergy-
man presented by him.
Local Ordinaries should endeavor to induce patrons to
abdicate their ins pair onatus, or at least the right of pres-
entation, in exchange for spiritual suffrages for them-
selves and their families. If a patron is unwilling to cede
the iuspatronattts, this can be exercised only in accordance
with the following canons.
popular patronage
Can. 1452
Elections and presentations to parochial benefices by the
people (i. e., congregations, as for instance, in Switzer-
land) can be tolerated only if the people elect one of three
candidates designated by the local Ordinary. Hence
B Tbe distinction between fa- plained in the same way by all
milUrt and genlilitium is not ex- writers.
jle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANONS 1453-1455
527
neither the government, nor the municipality, nor the con-
gregation as such, are allowed to reject all three candi-
dates proposed by the Ordinary.
transmission of patronage
Can. 1453
A personal iuspatronatus cannot be validly transmitted,
either by inheritance, donation, change or sale, to infidels,
public apostates, heretics, schismatics, members of secret
societies condemned by the Church, or to any one who is
under a declaratory or condemnatory sentence of excom-
munication.
That a personal iuspatronatus may be validly trans-
mitted to others, the written consent of the Ordinary is
required, with due regard to the last will of the founder,
which, once accepted, must be kept sacred.
If a real patronage passes to any of the above-named
persons it remains suspended, viz., until said person be-
comes reconciled to the Church.
authentic proof required
Can. 1454
No iuspatronatus can be admitted unless it is estab-
lished by an authentic document or other lawful proofs,
as seen in Book IV.
privileges of patrons
Can. 1455
The privileges of patrons are the following:
i.° To present a clergyman (not a layman) for a vacant
church or benefice ;
oogle
Original from
UNIVERSITY OF WISCONSIN
528 ADMINISTRATIVE LAW
2.0 To obtain support from the revenues of the church
or benefice, if there are any left, should he (the patron)
become reduced to poverty without his fault. This claim
remains even if the patron has renounced the advowson
in favor of the church, or if a pension was by mutual
agreement reserved to the patron but proves insufficient
for his support. However, this equitable right can be
claimed only if the patron has complied with his obliga-
tions as advowee, and the beneficiary has a decent support.
3.0 To enjoy certain honorary prerogatives, where
these are customary. These prerogatives are:
(a) To have his family coat-of-arms placed in the
church ;
(b) To precede all other laymen at processions and
other similar functions;
(c) To occupy a more prominent seat in the church,
but outside the sanctuary and without a canopy.
Sometimes two swings of the censer at the incensation
are permitted.
wife and minors
Can. 1456
rv
A wife exercises the iuspatronatus herself, children who
are not yet of age, through their parents or guardians;
if the parents or guardians are non-Catholics, the patron-
age remains suspended until the minors come of age, or
the parents or guardians become Catholics.
~
time of presentation
Can. 1457-1 458
The presentation for a vacant benefice, whether lay,
ecclesiastical, or mixed, must, if there be no obstacle,
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1459-1460
529
-
be made within at least four months from the day on
which the collator, 1. c, generally the local Ordinary, has
notified the patron of the vacancy, and from among the
priests who have successfully passed the concursus, if the
benefice requires a concursus.
Exceptions to this rule are:
(a) Any legitimate obstacle which prevents the patron
from making the presentation, e . <<., illness, or suspension,
or a journey to Rome 8 ;
(b) The fact that a shorter time is prescribed either by
the will of the founder or by lawful prescription.
If no presentation has been made within the prescribed
time, the church or benefice becomes, for this time only,
one of free collation, i. e.t the Ordinary can appoint whom
he pleases, without consulting the patron. But if a quar-
rel or dispute arises during the four months, concerning
the right of presentation, either between the Ordinary and
the patron, or between different advowees, or about the
candidates, who of them should be accepted, the appoint-
ment must be suspended until the controversy is settled,
and, if necessary, an administrator (oeconomus) shall be
appointed by the Ordinary for the church or benefice.
COLLEGIATE PRESENTATION
Can. 1459-1460
§ I. If several individuals are patrons, they may agree
among themselves, both for themselves and for their suc-
cessors, to exercise the right of presentation alternately.
§ 2. But in order to be valid this agreement must have
the written consent of the Ordinary, which consent, when
once given, cannot be validly revoked against the will of
>C 5, X, III, 8; formerly ec-
clesiastical patron* had six, lay pa-
Irons only four months for making
the presentation; c. 33, X, III. 38.
>ogle
Original from
UNIVERSITY OF WISCONSIN
~
530 ADMINISTRATIVE LAW
the patrons either by the Ordinary himself or by his suc-
cessor.
Whilst canon 1459 treats of patrons severally, can. 1460
mentions a body or college of patrons, which may be a
corporation, for instance, a monastery or university which
possesses the iuspatronatus. For such collegiate presen-
tation the following rules are laid down :
§ 1. If the advowson is exercised by a college or body
of patrons, the candidate who obtains the majority of
votes, according to can. 101, § 1, must be considered as
chosen or presented. After two ballots have been cast
without result, all those are to be considered as presented
who obtain a majority in the third ballot, even though they
receive the same number of votes.
§ 2. The same principle is applied to a non-collegiate
body, i. e.t when several patrons have an individual right
of presentation. If they cannot agree as to alternate
presentation, the candidate who obtains at least a relative
majority of the votes cast by the litigant patrons is re-
garded as presented, and if several candidates are selected
with the same number of votes, they must all be considered
as presented.
§ 3. He who is entitled to exercise a patronage on vari-
ous grounds, (for instance as founder, endower, builder,
or by reason of inheritance) enjoys as many votes as he
has titles.
§ 4. Every patron may, before the presentation is ac-
cepted, present more than one candidate, either at once
or successively, because the ius ad rem is not yet acquired ;
but he must present these candidates within the prescribed
time and not exclude those whom he presented first.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1461-1464
CANDIDATES
Can. 1461-1464
53i
-
No one, even though he be a clergyman and the most
worthy candidate available, can present himself, nor
vote with others in order to obtain the number of votes
necessary for presentation. To do this would savor of
ambition, and is forbidden, even by proxy.4
The patron, even if he be a layman, can not present
for a church or benefice a cleric who has not suc-
cessfully passed the concursus, whenever this is re-
quired.
The candidate to be presented must be fit, i. e., he
must have all the qualities required by common law, or
particular statutes, or the charter of foundation on the
day when the presentation is made, or at least on the
day when he accepts the presentation. The qualities
required by common law are laid down in Book II of
our Code.
The presentation must be made to the local Ordinary,
to whom it appertains to judge whether the candidate is fit.
To form his judgment the Ordinary shall make inquiry
about the candidate,5 and obtain information, if necessary
in secret.
The Ordinary is not obliged to manifest to the patron
the reasons for rejecting a candidate.
He may do so, but cannot be compelled, because com-
pulsion might involve unnecessary odium.
4Cc. 15. 26, X, III, 38; Reiffen-
ttucl, A. #., n. 7*.
i See can. 149.
gle
Original from
UH1VERSITY OF Vi-'ISCONSI
532 ADMINISTRATIVE LAW
rejection of the candidate presented
Can. 1465
§ 1. If the candidate is found unfit, i.e., if he lacks
the qualities required (can. 1463) and is therefore re-
jected by the Ordinary, the patron (no matter whether
he be an ecclesiastical or a lay advowee), provided the
four months have not elapsed through his own negli-
gence or carelessness, may present another candidate
within another four months. If this one, too, is found
unfit, the Ordinary may, for this occasion, freely ap-
point one of his own choice, and we believe he not only
may but should make use of this right, unless the pa-
tron has recourse to the Holy See within ten days from
the day when he was notified of the rejection. If re-
course is taken, this fact must naturally be communi-
cated to the Ordinary. Pending a decision, the bene-
fice remains vacant. In the mean time, the Ordinary
shall, if necessary, appoint an oeconomus to the vacant
church or benefice.
§ 2. A presentation tarnished with the stain of sim-
ony is null and. void by law, and the same rule holds of
the subsequent installation of the candidate by the Or-
dinary.
effect of accepted presentation
Can. 1466-1468
~
Every candidate who has been lawfully presented and
found fit, by accepting presentation, obtains the right
(ins ad rem) to be canonically installed.
The right to grant canonical institution belongs to the
local Ordinary, but not to the Vicar-General, unless he
has obtained a special mandate to that effect.
jle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1469
533
If several candidates have been lawfully presented, and
all are proved fit, the Ordinary may choose from among
them the one whom he deems most suitable or worthy.
The canonical installation for any and every benefice,
even if it has no cure of souls attached to it, should take
place two months from the date of presentation, unless
a legitimate obstacle prevents.
If the candidate presented resigns his right or dies be-
fore the canonical installation has taken place, the patron
again has the right of presentation, to be exercised, as
before, within four months.
obligations of patrons
Can. 1469
§ 1. The burdens or obligations of patrons are the fol-
lowing :
i.° To notify the local Ordinary if the property of the
church or benefice is suffering material damage, without,
however, meddling in the administration of the same ;
2.0 To rebuild a church if it has collapsed, or to make
the repairs that are judged necessary by the Ordinary,
if the advowson was obtained by reason of having built
the church and this burden of repairing or rebuilding is
not incumbent on others, according to can. 11 86.
3.0 If the patronage is based upon the title of endow-
ment, the patron must supply new revenues in case the old
revenues of the church or benefice become so insufficient,
that either divine worship cannot be properly kept up, or
the benefice cannot be conferred.
§ 2. In case the church has collapsed, or is in need of
urgent repair, or if the endowment has become insuffic-
ient, the iuspatronatus remains suspended until the patron
is able or willing to comply with his obligation.
>ogle
Original fro m
UNIVERSITY OF WISCONSIN
"-.
534 ADMINISTRATIVE LAW
§ 3. If the patron rebuilds or repairs the church, or
supplies the needed revenues, the iuspatronatus within the
time set by the Ordinary, revives ; otherwise it ceases
ipso iure and without any declaration after the expira-
tion of the term.
loss of the iuspatronatus
Can. 1470
§ 1. The iuspatronattts is lost, as wc have seen in the
preceding canon, if the patron fails to rebuild, repair, or
re-endow the benefice. It may also cease for one of the
following reasons :
i.° If the patron renounces his right; this renunciation
may be either total or partial; but if one of several indi-
vidual patrons gives up his right, no prejudice is thereby
created to the others.
2.° If the Holy See revokes the right or permanently
suppressed the church or benefice.
3.0 If there is a legitimate prescription against the
patron. This is but another form of tacit resignation.
4.0 If the property or office in which the iuspatronatus
inheres perishes; or the family, clan (gens) or line to
whom theadvowson was reserved, dies out. In this latter
case the patronage does not become hereditary, nor can
the Ordinary validly permit it to pass over to persons
not connected by blood relationship with the patron, fam-
ily, or clan.
5.° If, with the consent of the patron, the church or
benefice is united with another, which is of free colla-
*
tion, or if it becomes elective or regular. This, too, is a
kind of tacit resignation."
0 Cfr. Santi-Leitner. III. 38. n. 43 £
^
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 1471
535
6.° By crime, as follows:
(a) If the patron attempts, even though unsuccessfully,
to transfer his iuspatronatus to another by simony;
(b) If he becomes an apostate, a heretic, or a schis-*
matic ;
(c) If he unjustly usurps or retains rights and prop-*
erty belonging to the church or benefice;
(d) If he, either personally or through another, kills
the rector or any other cleric attached to the advowson
church, or the beneficiary.
§ 2. This last-named crime affects also the heirs, whilst
the three first mentioned concern only the patron himself,
§ 3. To incur privation of advowson on account of
any of the four crimes mentioned, a declaratory sentence
is required and suffices.
§ 4. No one is allowed to exercise the iuspatronatus,
or to enjoy its privileges, who has incurred a censure or
infamy by law, inflicted by a condemnatory or declaratory
sentence, as long as this censure is not removed.
indult of presentation
Can. 1471
If the Apostolic See has, either by a concordat or other-
wise, granted the privilege of presentation to a vacant
church or benefice, this grant must not be construed as
iuspatronatus, but the indult must be interpreted strictly
according to its tenor. This is clearly intended for coun-
tries where the separation of Church and State is not yet
in effect, either totally or partially. The interpretation
must be applied in a similar manner to concordats.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
CHAPTER V
RIGHTS AND DUTIES OF BENEFICIARIES
RIGHTS IN GENERAL
Can. 1472-1473
Every beneficiary, after having taken canonical posses-
sion of his benefice, is entitled to all the rights, temporal
and spiritual, attached to the same.
These rights are, of course, the rights specially con-
nected with the benefice. Besides these there are the gen-
eral rights arising from the clerical state, as set forth in
can. 118-123, which are by no means curtailed through
the fact of one's being installed in a benefice.
Of the temporal rights the foremost is that of enjoying
the revenues derived from the benefice, as far as they are
needed for the beneficiary's decent support. He is en-
titled to these revenues even though he may possess other
property, but is obliged to devote the superfluous rev-
enues to the poor or to charitable institutions.
Since this canon is undoubtedly intended also for pas-
tors and curates who hold no strictly so called benefices,
it may be well to recall the different kinds of clerical
property. They are:
(1) Patrimonial, if derived from the cleric's patri-
mony, e. g,, by inheritance ;
(2) Quasi-patrimonial, or industrial, if acquired by
the clergyman's own industry or diligence, from work
536
►ogle
Original fro m
UNIVERSITY OF Vi-'ISCONSI
CANONS H72-I473 537
which has no connection with his benefice, for instance, as
a lecturer, a musician, an author :
(3) Parsimonial, if acquired from ecclesiastical or
beneficiary revenues by living very frugally, so that
something is left over and above the expenditures for
decent support ;
(4) Beneficiary, if acquired from the benefice after a
decent support has been deducted, in other words from
the surplus revenues.
What is a decent support must be decided accord-
ing to the circumstances of time and place. It includes
moderate and customary hospitality, which has always
been inculcated by the Church, and suitable recreation
and provision for old age and inability, for instance, by
life insurance or interest -bearing investments.1
Our text speaks of superfluous revenues. What are
they? Discarding the patrimonial and quasi-patrimon-
ial, there can be question only of parsimonial and strictly
beneficiary income. However, since the Code mentions
congrua, it is not likely that parsimonial incomes are un-
derstood, and canonists generally do not apply the law to
them. Hence only the strictly beneficiary revenues, which
are left after one has provided for his decent support, can
be understood. These are superfluous, and must there-
fore be applied, as the law says,2 to the poor or to
charitable institutions. Note that this is a strict obliga-
tion, not ex mera caritate, but ex iustitia. Our text is
quite explicit on this point, since it calls the beneficiary
only the usufructary, not the possessor or lord, of his
benefice. Usufruct is the right of enjoying a thing
1 Cfr. SantM.citncr, III, tit 2$, de **/.; Santi-Lcitner, III, tit. 25,
o. a f. n. 7, opposes this interpretation,
2 Cfr. c. 16, X, III. $: c 44. but without a good reason.
X, V, 3; Tn'o'., Scn. 25, cc r, 9,
jle
% .J,., Original from
UNIVERSITY OF WISCONSIN
538 ADMINISTRATIVE LAW
which is not one's property. This law is very logical,
because the right of property in case of a benefice, by a
fiction of law, is invested in the juridical entity, which is
the benefice itself.
?
a
order and canonical hours
Can. 1474-1475
If a benefice requires the reception of an order, be it
minor or major, the beneficiary must receive that order
before he can be installed.
§ 1. A beneficiary is obliged faithfully to fulfill the
special obligations connected with his benefice, and.
besides, to recite the canonical hours daily.
§ 2. If he neglects the obligation of. reciting the divine
office without a lawful reason, he is bound to make
restitution of the revenues received, in proportion to the
Extent of his culpable omission, and should give the
amount due to the church building, or to the diocesan
seminary, or to the poor.
The obligation of reciting the divine office {Breviary)
has been dealt with in Vol. II of this Commentary. From
the decisions of the Holy Office we here supply the follow-
ing points : One who holds either a chaplaincy or other
ecclesiastical benefice cannot comply with the obligation of
reciting the divine office through another, on the ground
that his time is occupied with literary studies.9 Nor is
the recitation of the entire office on one day sufficient for
the next.4 Those who cannot recite Matin and Lauds,
but are able to recite the little hours, are obliged to say
the latter.0
3 Prop. 21 damn, a S. O., Sept I Prop. 54 damn, a S. O., March
fi>4, 1665 (Denzinger, n. 992). 4> i6?9 (ibid., a. 1071).
« Prop. 35 damn, a 5. O., March
*8, 1666 Ubid., n, 1006).
oogle
k ,1,., " riginal from
UNIVERSITY OF WISCONSIN
CANONS 1476-1478 539
The proportion in which restitution is to be made has
been declared by Pius V as follows : Those who omit the
entire office, lose all their revenues corresponding to the
day or days on which this duty was entirely neglected;
those who neglect Matins only lose one-half of the rev-
enues ; those who omit the rest of the hours, also one-half,
and for each single hour the sixth part of the revenues of
the respective day.0 These rules, however, apply only to
such beneficiaries as have no other duty than to recite the
divine office.1
obligations of administration
Can. 1476-1478
§ 1. As guardian of his benefice, the beneficiary must
administer the goods belonging to the same according to
law.
§ 2. If he has been culpably negligent, he is bound to
repair the damage, and the local Ordinary shall compel
him to make up for the loss. If the beneficiary is a pas-
tor, he can be removed (can. 2147 ff.).
§ 1. The ordinary expenses of administration and of
collecting the revenues must be borne by the beneficiary.
§ 2. Extraordinary expenses incurred for repairing the
beneficiary's residence must be borne by those who are
obliged to make these repairs, unless the charter of the
foundation or mutual stipulation and custom provide
otherwise.
§ 3. Minor repairs which the beneficiary has to make at
his own expense should be made as soon as possible, to
avoid greater ones.
a S. Pius V, " Ex proximo," Sept. supposing he were a beneficiary, re-
ao, 1571. ccivea his salary chiefly for pastoral
TA pastor, for instance, even work; and therefore the duly of
jle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
54o ADMINISTRATIVE LAW
The local Ordinary is obliged to see to it, through
the rural deans, that the property belonging to benefices is
preserved and properly administered.
LEASFS
Can. 1479
i
In leasing property belonging to benefices it is not per-
mitted, without the consent of the Ordinary, to demand
that the money be paid over six months in advance. In
extraordinary cases the Ordinary should provide by ap-
propriate precepts, that such a lease does not result in
damage to a pious institution or to the beneficiary's suc-
cessors.
how the revenues are to be divided in case of the
beneficiary's death
Can. 1480
In case of death, the yearly revenues must be divided
between the beneficiary's successor and predecessor, or
their heirs, in proportion to the time either has served the
benefice, taking into account all the revenues and ex-
penses. If the predecessor was in office four months, for
example, he or his heirs are entitled to one-third of the
-
revenues, minus any obligations that remain unpaid.
However, legitimate custom or particular statutes may
provide another mode of distribution.
restitution is reduced to a mini- maintains that barely the tenth
mum. Cfr. Noldin, De Pratceptis, part of the revenue! would have to
1914, n. 758, 1., p. 794. who justly be restored.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANONS 1481-1483 541
what is to be done in case of vacancy
Can. 1481-1482
All revenues accruing during the vacancy of a benefice
go in equal parts to the endowment or common fund, and
to the building or vestry (sacristy) of the Church. The
expenses, especially the salary of the administrator, may,
of course, be deducted.
Lawful custom may permit these funds to be applied to
the common good of the diocese.
As to the so-called media annata, i. e.f the taxes to be
paid for certain benefices from the income of the first
year (fructus primi anni), this should be retained where-
ever it is in vogue, and the peculiar statutes and praise-
worthy customs of each diocese or region with regard to
the media annata should be upheld.
The media annata, which originated under Boniface
VIII, was never introduced into this country.
episcopal revenues
Can. 1483
The property of the mensa cpiscopalis shall be carefully
administered by the bishop. His residence must be kept
in good condition, and if repairs are required, the expenses
arc to be paid from said mensa, unless others are obliged
to defray them.
The bishop shall also take care that an accurate in-
ventory is made of all the movable property belonging to
the episcopal residence, and that everything is safely
transmitted to his successor.
oogle
C^ ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CHAPTER VI
RESIGNATION AND EXCHANGE OF BENEFICES
C
resignation
Can. 1484-1486
a
The general principles governing the resignation of
beneficiaries are the same as those laid down in can. 184-
191, to which we may therefore refer the reader (see
Vol. II of this Commentary). The substance of the
above three canons is as follows :
1. Since sordid occupations or begging are unbecoming
to the clerical state in general,1 and more particularly to
clerics in higher orders, the Ordinary is not allowed to
accept the resignation of any cleric in major orders unless
he is certain that the beneficiary has other means of pro-
curing a decent support. Proof to this effect must be
given before the Ordinary can lawfully accept such a res-
ignation. The oath of the beneficiary alone would not
suffice, but at least one trustworthy witness is required and
he must testify under oath.2
2. This rule holds more especially if the benefice which
a cleric wishes to resign, constitutes the title upon which
he was ordained {titulus bcneficii). Such a resignation
would be null and void, unless the beneficiary expressly
l Trid., Sess. an, c. a, de Rcf. 1726, ad III and IV (Richter, Trid.,
SS. C P. F., April 18, 1757, ad 113,11.7).
i (Coll., n. 405); S. Cb C. Feb. 9,
542
jle
I , Original from
UNIVERSITY OF WISCONSIN
CANONS 1484-1486 543
stated that he had been ordained to that title and had sub-
stituted another legitimate title with the consent of the
Ordinary. Two, or rather say, three conditions are there-
fore required:
(a) An express statement of the title of ordination ;
(b) Proof that another title has been substituted, and
(c) The consent of the Ordinary into whose hands the
benefice is resigned.
An express statement is one to which no qualification
(for instance, ''perhaps/' "I believe/' etc.) is attached.
The consent of the Ordinary must be given by means of
a declaration that the substitution has been lawfully
made.3
A legitimate title is any one of those mentioned in can.
979, and, no doubt, now also one of those enumerated in
can. 981, because service and mission have been legiti-
mated by our Code.
A conditional resignation (canon i486) may be made in
favor of another (in commodum alioranx) or under some
condition proper which either affects the appointment to
the benefice itself, or its revenues, or burdens imposed
upon the benefice. Such a resignation in favor of an-
other is strictly forbidden by reason of the danger of in-
troducing hereditary succession.4 The other kind, too, is
here forbidden, and Ordinaries may not accept it.
The provisio benefccii may be affected by a threefold
kind of resignation, which the canonists designate by
accessus, ingressus, and regresstts.
A resignation by accessus is that made by a cleric who
has obtained only the ins ad rem, i. e., a claim to the bene-
fice by accepted presentation or nomination.
■ S. C. C, Feb. 9. 1736 (/. ft), April 1, 1568; " tntolerabUis," June
* Trid,, Seas. -J5. c. 7 <** Hi/-# »» 1569; this was called a resign a-
S. Piui V, " Quanta Eteleria*," tion with the clause " non alitcr."
in
£
,1,., Original from
UNIVERSITY OF WISCONSIN
>gk
544 ADMINISTRATIVE LAW
A resignation by ingressits is that made by a cleric who
has the MM in re, that is to say, the right to hold the bene-
fice, but has not yet taken possession thereof.
A resignation by regressus is that made by a cleric of
a benefice which he actually possesses.5 This, too, is for-
bidden, for the reason alleged above, and also because of
the restriction imposed on the bestowcr as well as on the
patron.
But the Code admits one conditional resignation, viz.,
that of a benefice disputed either by a petitory or a pos-
sessory claim, provided the resignation is made in favor of
one of the contestants, in order to end the quarrel.
■.'
exchange of benefices
Can. 1487-1488
An exchange is a mutual transfer of equal interests, the
one in consideration of the other6; and if the objects are
ecclesiastical benefices, the exchange is a permutatio benc-
ficiorum.
Such an exchange, says can. 1487, can be made only for
a reason involving the necessity or utility of the Church,
or for some other just cause, provided, moreover, that
both beneficiaries really possess their benefice.7 Valid ex-
change further requires :
(a) That no other interested persons suffer a detri-
ment;
(b) That, if the benefice be one of advowson, the con-
sent of the patron be obtained;
(c) That the exchange be made with the permission
of the local Ordinary, i. e., the bishop ; the Vicar-general
6 Santi-Lcitner, I, tit 9. n. 34. TC. 13, X, II, as.
0 BlackMonc-Coolej-, Comment.,
n. j23.
.'Ie
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
D
«
■-
•"
"
CANONS 1487-1488
545
needs a special mandate to ratify such an exchange and
the Vicar-Capitular cannot ratify it at all ;
(d) That, finally, the exchange be made either in writ-
ing or before two witnesses.
The local Ordinary must either refuse his consent or
give it within a month, and the exchange is valid from the
date of the consent given. But the local Ordinary cannot
ratify an exchange if one or both of the benefices involved
are reserved to the Holy See ; because the latter's right of
free collation might thereby be injured."
An exchange supposes benefices of equal or nearly
equal value and importance. When two benefices are un-
equal as to income or other value, an exchange, according
to can. 1488, is not permissible if it is made by reserving
part of the revenues or the payment or grant of any valu-
able object, because of the danger of simony. This rule,
it appears, comprises all kinds of unequal exchange, be-
tween conventual as well as parish benefices, between in-
dividuals as well as corporations."
An exchange of benefices cannot be made between more
than two beneficiaries. Hence no triangular or quadran-
gular exchanges are permitted, except by special permis-
sion from the Supreme Pontiff.10
8 Santi-Lcitner, III, 19, n. 8. 10 Reiffenituel, I, 9, a. 123 ff.
BC. 5. X, III, 19; C 6, X, III,
19 is antiquated.
gle
Original from
UNIVERSITY OF WISCONSIN
TITLE XXVI
OTHER NON-CORPORATE ECCLESIASTICAL
INSTITUTIONS
a
"-.
Can. 1489-1494
§ 1. Local Ordinaries may erect hospitals, orphanages
and similar institutions destined for religious or charitable
(spiritual or temporal) works ; they may also endow such
institutions with the character of ecclesiastical corpora-
tions.
The right of the Church to found such institutions can-
not be disputed. This right is set forth in Part VI, which
immediately follows. The canonical nomenclature for a
hospital, orphanage, or similar institution under ecclesias-
tical control is domus religiosa, a religious or rather eccle-
siastical foundation or house. To deserve this name, an
institution must be destined for works of piety or charity
by the ecclesiastical authority, i. e., the local Ordinary or
an exempt religious superior. An institution founded by-
private persons without ecclesiastical authority, even
though its purpose be sacred, is called merely domus pia.
The text says : et per ems decrctum persona iuridica in
ecclesia constitui. The corporate character attached to
such an institution by the decree of the Ordinary may be
taken in a twofold sense: as a corporation proper and
as an institute or juridical entity. The corporate charac-
ter can only be given if the house belongs to a community
or religious corporation which owns and administers it,
546
G 1 Original from
°°8IC UNIVERSITY OF WISCONSIN
CANONS 1489-1494 547
either by itself or in the name of the Church. For neither
patients nor orphans constitute a corporation ; they are
merely beneficiaries or destinatarii. In the wider sense,
the object (finis) of an institute is, by a legal fiction, the
carrier or subject of its rights and duties, i. e., generally
the officials or representatives acknowledged by law.
§ 2. Before the local Ordinary gives his approval, or
issues a decree, he must assure himself that the founda-
tion is really useful and sufficiently endowed, or that it
has prospects of obtaining sufficient funds. If he neglects
this duty, the blame falls on the Ordinary, together with
such undesirable consequences as debts, etc.
§ 3. In all such institutions the rector or syndic shall
administer the temporalities according to the by-laws laid
down in the charter. His rights and obligations are the
same as those of the administrators of other ecclesiastical
property.
The charter must contain an accurate description of the
constitution, purpose, endowment, administration, and
government of the institution, also of the use to be made
of the revenues and who is to succeed to the property in
case the institution goes out of existence.
Of the charter and by-laws two copies must be made,
one of which is to be kept in the archives of the institution
itself, the other in the diocesan court.
The local Ordinary has the right and the duty of visit-
ing all such institutions, even though they are corpora-
tions or otherwise exempt.
If non-corporate institutions are in charge of a re-
ligious diocesan community, they are entirely (1. *., both
in spiritual and temporal matters) subject to the jurisdic-
tion of the local Ordinary; if they are in charge of a
pontifical or papal religious community, they are under
the supervision of the local Ordinary in whatever con-
■"■
jle
v ,|,, Original fro m
UNIVERSITY OF WISCONSIN
548 ADMINISTRATIVE LAW
cerns faith and morals, pious devotions, and the adminis-
tration of the Sacraments.
Although a pious or ecclesiastical institution may, in
virtue of its charter, or by prescription, or by a papal priv-
ilege, have obtained exemption from the jurisdiction and
visitation of the local Ordinary, the latter is entitled to
demand an account of its affairs, and every contrary cus-
tom is hereby reprobated.
If a founder insists that the administrators should not
be obliged to render an account to the local Ordinary, the
foundation cannot be accepted as an ecclesiastical one.
The local Ordinary shall see to it that the pious desires
of the faithful, as set forth in the charter of such institu-
tions, be ftdly carried out.
Without the permission of the Apostolic See such insti-
tutions cannot be suppressed or incorporated with others,
or converted to purposes other than those prescribed by
the founders, unless the charter provides differently.
| Original from
OOglL UNIVERSITY 0FWI5C0NSIN
-:
•■-.
PART VI
THE TEMPORAL POSSESSIONS
OF THE CHURCH
This last part of the administrative law of the Church
treats first of the property-right of the Church and then
of the mode of acquiring temporal goods and their admin-
istration. To this are added two specific kinds of obli-
gation which involve some peculiarities as to form and
object, vis., contracts and pious foundations.
That this part of the Code brings the Church into closer
relation with the State and the world at large goes with-
out saying, for it forms the sensible or commercial link
between the two societies, but also the necessary bridge
between the spiritual and the temporal domain.
o
right of the church to possess property
Can. 1495
§ 1. Ecclesia catholica et Apostolica Sedes nativum
ius habent libere et independenter a civili potestate ac-
quirendi, retinendi et administrandi bona temporalia
ad fines sibi proprios prosequendos.
§ 2. Etiarn ecclesiis singularibus aliisque personis
moralibus quae ab ecclesiastica auctoritatc in iuridi-
cam personam erectae sint, ius est, ad normam sacro-
rura canonum, bona temporalia acquirendi, retinendi et
administrandi.
549
oogle
Original from
UNIVERSITY OF WISCONSIN
550 ADMINISTRATIVE LAW
The first of the four introductory canons of this Part
■vindicates the natural and historic right of the Church
to possess material property in these words :
§ I. The Catholic Church and the Apostolic See have
the inherent right, freely and independently of any civil
power, to acquire, retain, and administer temporal goods
for the pursuit of their own ends.
§ 2. Individual churches and other corporations estab-
lished as such by ecclesiastical authority, are also en-
dowed with the right of acquiring, retaining, and adminis-
tering their own property, according to Canon Law.
To a practical American these propositions appear as
evident as that two and two are four.1
i. The Catholic Church, being a perfect, i. e., autono-
mous, legal, and visible society, with its own proper end,
cannot lack the means which are necessary to attain that
end. Now, one of these means is the right to possess
property. For the Church is founded for men who are
endowed not only with a soul, but also with a body that
needs support and is subject to the senses. The Church
needs temples, sacrifices, and sacraments, and it needs
ministers, who also are men. All these things are essen-
tial to the society founded by the Son of One, who is at
the same time, God. His ministers cannot live on the
word alone ; they need at least some bread. Divine wor-
ship also requires material aid and support. Now, divine
worship certainly belongs to the Church, in virtue of her
very existence and end. Nor can we imagine that God in
1 It is not necessary to recall all Del Diritlo Libera dalla Chicsa di
the obnoxious laws of mcrte main acguislarc c di possidcre Beni Tem-
which were made from the twelfth povali si mobile che stabili, 1769; C
to our century; see Coulondre, Pes Scheys, De lure Ecclesioe ac~
acquisitions des bias par les Blab- quirenii tt posridendi Bona Tem-
lissements tie la Religion Chrctrienne poralia. Louvain, 1892; Archiv. fir
en Droit Romain et dans VAncxen Kath. K.-R., 1904, ** &•
Droit Francais, 1886; Mamacchi,
jle
f ■ j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1495 55i
his providence should have left her destitute of the power
necessary to procure these necessary means, or that He
should have thrown her upon the mercy of the State, for
this would involve a handicap and a dependence which
would make her the mercenary and slave of a society
which, as to its end, is inferior to the Church.
Neither can there be, per se, any conflict between the
spiritual and the temporal society, as if the latter would
be curtailed by the acknowledgment of the property right
vested in the Church. For although the State has a ma-
terial right to temporal goods, yet this right is neither ab-
solute nor unlimited. It is not absolute because the State
is not independent of the Supreme Governor of the uni-
verse. It is not unlimited because the State is entitled to
material goods only as far as its end requires it, and as far
as the rights of individuals are not trespassed upon. For
the individual citizen has a right to exist, and consequently
also to own what is necessary for his existence, prior to
any right of the State. And if the State interferes with-
out necessity and in violation of that natural freedom
which belongs to every human being, then the individual
has a natural right to resist.2 If this is true of the indi-
vidual, it is also, and a fortiori, true of the society founded
by God, which is also made up of individuals. If we say
that per sc no conflict is possible between Church and
State, we suppose, of course, that each society keeps within
its own proper sphere, claiming only what is necessary for
the pursuit of its specific and well defined end.
2. There is another, more specific reason for the
Church's claim. The Church has the innate right and
duty to establish, foster, and protect charitable works of
2 See Fr. Cuthbert, 0. S. F. C, Catholic Ideals in Social Life, 1905.
p. 27.
v ,| , Original from
UNIVERSITY OF WISCONSIN
>gle
c
552 ADMINISTRATIVE LAW
all kinds, which are commanded by her divine Founder.1
The most luminous pages in her history are those record-
ing her deeds of charity. To sever these from the Church
would be the same as tearing a child away from his
mother. The exercise of charity, however, requires sub-
stantial means and unhampered liberty, which again is
possible only if the Church is endowed with the inherent
right to possess property.
3. Not only the first Church historian, St. Luke,* but
also many later writers ■ bear witness to the fact that the
Church always possessed temporal goods. Even pagan
cmporers acknowledged that right. Thus Aurelian (270-
275) adjusted a question of property in favor of the
Church against Paul of Samosata. To mention the edict
of Milan 313 is sufficient to prove that Constantine did
not grant, but merely restored, the property right of the
Church." It is superfluous to add further proofs. It was
but natural and logical that the Holy See condemned the
contrary tenet, namely, that t% the Church has no inherent
and lawful right to acquire and possess property." 7
The present canon vindicates this right of holding prop-
erty to the Church at large and to the Apostolic See;
then, with some limitation, also to single corporations.
The term Apostolic See must be understood according
to can. 7 of the Code. However, here it evidently has the
special meaning of the primatial See of St Peter, and
there seems to be a covert allusion to the temporal power
of the Pope. To set forth the whole Rotnan Question, so-
* See Matth. 25. 35 ff«; AcU IX, • Cfr. Lactantlua, De Mortibiu
29 ff. ; Gal. 2, 9 f. ; I Cor. 16, 1; Perteeulorum, c. u; Eusebiua,
II Cor. 8 ff.; Rom. 15. *6. *»•*. £«'•» VII, 13; S. Brandi, S.
*Act» a, 44 f.J 4. 34 *• '•» W Chi Scno U Chi***? 1898, p.
5 Justin, ApoL. I. on. 14. 67: 16 ff.
Tertull., ApotegcK, n. 39; Cyprian, T Syllabus of Pius IX, n. 36;
Ep. 66, c. 16. Heiner, Per Syllabus, 1905, p. 14a t
oogle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1495 553
called, would require a treatise for itself. Let us empha-
size but two points, namely, (1) that the temporal do-
minion of the Pope, in its limited sense, i. e., as it actually
existed before T870, cannot be said to be iuris dtvtnt,
though it may justly be called providential. Providence
and divine right are not identical terms, else the Church
would have lacked an essential feature for about 700
years; (2) that temporal dominion is compatible with
spiritual power8; the latter, as the superior power, may
subject to itself a temporal rule or government, but not
conversely, because the power of assimilation is wanting
in a merely temporal factor.
The Apostolic See, ihen, being the Church personified
or visibly vested in the Supreme Pontiff, enjoys the right
to possess property to the same extent and in the same
sense as the Church at large.
"Individual churches" are dioceses or organizations
which have their own superiors, endowed with jurisdic-
tion in foro extcrno, who act as representatives of the
universal Church. Parishes are not such corporations in
the ecclesiastical sense because their purpose is entirely
- dependent on the superior end of the diocese, of which
they form a subordinate part, and, besides, the pastor is
not a representative in foro externo. However, by par-
ticipation, parishes may share in the nature of a cor-
poration proper, and thus be acknowledged by the Church
for the sake of convenience in administration. The State
may recognize them as corporations, provided the local
Ordinary is not excluded. Note that single cnurches or
corporations (for instance, religious communities) are
capable of exercising ecclesiastical property rights only
so long and in so far as they belong to the body of the
ft Syllabus Hi IX, n. 75; Heincr, /. c, p. 33* '»•
>Ic
Y %\^ Original from
UNIVERSITY OF WISCONSIN
554 ADMINISTRATIVE LAW
Catholic Church. The reason is that the partial end, such
as pursued by single churches and corporations, necessar-
ily follows the universal end of the Church at large, and
borrows from it its juridical entity. Hence if a particular
church or organization departs from unity of faith or
government, or adopts a worship different from that of
the universal Church, it can lay no claim to any prop-
erty which it enjoyed whilst united to the entire, su-
premely sovereign organism. This has also been ruled by
courts in the United States.9
These individual churches and corporations, then, are
dependent upon the Church for their existence, for
they cannot grow except on ecclesiastical soil, and become
dead outside the pale. They depend on the universal
Church also in as far as the common law of the same is
binding on them concerning the acquisition, possession,
and administration of property. It does not follow from
this proposition that there are two subjects of such eccle-
siastical property rights, one the Church universal, and
the other an individual corporation. The Code is against
such a splitting up of the one and indivisible property
right. " lus est," it is a right, dependent only in as far as
the welfare of the whole Church requires. In a similar
manner our civil corporations depend on the State, but
enjoy the complete and autonomous right to possess and
administer their property.10
~
Can. 1496
Ecclesiae ius quoque est, independens a civili pote-
state, exigendi a fidelibus quae ad cultum divinum, ad
honestam clericorum aliorumque ministrorum susten-
• Zollmann, American Civil Eccl. Pubt., 1910, p. 43; Tanquery,
Church Law, 1917, p. 194- Summa Theol. Moral*, eti. j, III,
XOCfr. Hachofen, Summa Juris p. 85.
-1 Original from j
3(t UNIVERSITY OF WISCONSIN
CANON 1497 555
tationcm ct ad rcliquos fines sibi proprios sint nccessa-
ria.
Can. 1496 is a corollary of the preceding canon, and
vindicates to the Church, independently of any civil
power, the right to demand of the faithful whatever is
necessary for divine worship, for the support of her
clergy and other servants, and for the pursuit of her
proper ends. This is a corollary, or logical deduction,
from what was stated above, because it follows from the
inherent right of the Church to possess property suf-
ficient for her support. The legal standing of the Church
requires such an independent right, since the faithful be-
long to her hy divine right, having been consecrated to
her by baptism.
To this right, of course, corresponds a duty on the part
of the faithful. What was said under can. 463, must
here, proportionately, be applied to all the purposes men-
tioned.11
Can. 1497
§ x. Bona temporalia, sive corporalia, turn irnmobi--
lia turn mobilia, sive incorporalia, quae vel ad Eccle-
siam universam et ad Apostolicam Sedem vel ad aliam
in Ecclesia personam moralem pertineant, sunt bona
ecclesiastics.
§ a. Dicuntur sacra, quae consecratione vel bene-
dictione ad divinum cultum destinata sunt ; pretiosa,
quibus notabilis valor sit, artis vel historiae vel mate-
riae causa.
§ 1. All kinds of church property are, according to can.
1497, called ecclesiastical, no matter whether it belongs
to the universal church, or to the Apostolic See, or to an
11 See Vol. 11. 539 f.
oogle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
556 ADMINISTRATIVE LAW
ecclesiastical corporation, and no matter whether it is
corporeal (movable or immovable) or incorporeal.
" Right of property " is taken in the subjective sense
as the moral faculty of doing something, or of holding or
exacting property. Hence it is something intellectual and
moral, not perceived by the senses. If a distinction is
drawn between corporeal and incorporeal property it is
because of the objects which these categories comprise;
they are corporeal, if they fall under the senses; such are
landed property, buildings, chattel, objects, etc.; incor-
poreal if they cannot be seen or perceived by the senses,
except as far as they are asserted; such are advowsons,
titles, franchises, pensions, rents, leases, etc.12
§ 2. If goods or objects belonging to the Church have
received a consecration or blessing by which they were
destined for divine worship, they are called sacred. This
character, of course, adheres to corporeal things only.
Precious objects are such ecclesiastical things as have a
considerable value on account of the artistic skill with
which they are wrought, or because of their antiquity or
historical associations, or on account of the material con-
tained in them.
Can. 1498
In canonibus qui sequuntur, nomine Ecclesiae signi-
ficatur non solum Ecclesia universa aut Sedes Aposto-
lica, seel etiam quaelibet persona moralis in Ecclesia,
nisi ex contextu sermonis vel ex natura rci aliud appa-
reat.
By the term Church in the following canons are under-
stood not only the universal Church, or the Apostolic See,
but any ecclesiastical corporation, unless the contrary ap-
pears from the context.
It Blmckitone-Cooley, /. c, II, 15 ft
>gle
Y ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
TITLE XXVII
THE ACQUISITION OF ECCLESIASTICAL
PROPERTY
=
Can. 1499
D
U
§ i. Ecclesia acquirere bona temporalia potest om-
nibus iustis modis iuris sive naturalis sive positivi,
quibus id aliis licet.
§ 2. Dominium bonorum, sub suprema auctoritate
Sedis Apostolicae, ad earn pertinet moralem personam,
quae eadem bona legitime acquisiverit.
Can. 1499 vindicates to the Church the right of acquir-
ing property by all just means which are permitted by
either natural or positive law to other citizens or individ-
uals, i. e., by contract, donation, inheritance, etc.
The title or ownership is vested in the corporation itself,
though, of course dependently on the Holy See, i. e,t on
common law.
Here it may not be amiss to point out the different
forms of holding church property. They are: (a) by
corporation sole, which consists of one person, who trans-
fers it to his successor in office ; thus a bishop or pastor
holds property in the name and as officer of the diocese
or pastor; (b) by corporation aggregate, when the church
members are the incorporators and whatever property
they possess or acquire is vested in the body corporate;1
iCfr. Zollmann, American Cirii Church Law, 1917, p. 38 fl.
557
G I Original from
°°8IL UNIVERSITY 0FWI5C0NSIN
558 ADMINISTRATIVE LAW
(c) in fee simple, which conveys absolute and direct
ownership of the property, and was looked upon in former
days as vested in the bishop for all diocesan property.2
DIVISION AND TRANSFER OF CHURCH PROPERTY
o
Can. 1500
Diviso territorio personae moralis ecclesiasticae ita
ut vel illius pars alii personae morali uniatur, vel dis-
tincta persona moralis pro parte dismembrata erigaturv
etiam bona communia quae in commodum totius terri-
torii cram, destinata, et aes alienum quod pro territorio
contractum fuerat, ab auctoritate ecclesiastica, cui di-
visio competat, cum debita proportione ex bono et
aequo dividi debent, salvis piorum fundatorum seu ob-
latorum voluntatibus, iuribus legitime quacsitis, ac le-
gibus peculiaribus, quibus persona moralis regatur.
■--.
Can. 1501
Exstincta persona morali ecclesiastica, eius bona
fiunt personae moralis ecclesiasticae immediate supe-
rioris, salvis semper fundatorum seu oblatorum volun-
tatibus, iuribus legitime quaesitis atque legibus pecu-
liaribus quibus exstincta persona moralis regebatur.
If a territory, say a diocese or corporation, is divided
so that part of its territory is united to another corpora-
tion, or a distinct juridical person is established out of the
dismembered part, the property that belonged to the terri-
tory as a whole must be divided and the debts distributed
by the competent ecclesiastical authority. This division
must be made according to the principles of justice and
2 Blackstone-Cooley, Comment., II, 104 i. The S. C. prefers ownership by
corporation sole.
gle
% ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 1 501 SS9
equity, with due regard to the will of the founders or do-
nors and to the acquired rights and the particular statutes
governing the moral person who sustained the division.
This is a corroboration of what was stated under can. 1427
concerning the division of parishes, to which also the note
of Cardinal Gasparri refers, thus hinting that this canon
must also be applied to parishes, even though they may
not come up to the notion of a corporation proper. But
persona ntoralis may also signify a juridical entity of the
species of benefices, and as these may be divided or dis-
membered, so also parishes.
The proportion to be observed is twofold : general and
particular. The general proportion is indicated by the
phrase, " bonum ct aequum." But since it is a maxim
that equity follows the law, it is evident that justice must
be the first measure, to be taken not in the arithmetical,
but in the geometrical sense, for it would be next to impos-
sible to make such an equal division that cent for cent and
inch for inch would be shared. The particular proportion
is to be gauged by the acquired rights (because ntelior est
conditio possidentis) , the charter and by-laws. This same
proportion in can. 1501 is applied to the case where a
moral or juridical person ceases to exist. For this partic-
ular proportion means that all the property left by such an
extinct person passes to the immediate superior. Thus,
for instance, the property of an extinct parish goes to the
diocese ; if a diocese were suppressed, we suppose the S. C.
Consistorialis would provide. If a monastery or convent
of a centralized order becomes extinct, its property passes
to the province, unless the constitutions rule otherwise.
"-.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
S& ADMINISTRATIVE LAW
Can. 1502
Ad decimarum ct primitiarum solutionem quod atti-
net, pcculiaria statuta ac laudabiles consuetudints in
unaquaquc regione serventur.
As to tithes (dimes) and first-fruits, the special statutes
and praiseworthy local customs should be observed.
BEGGING
Can. 1503
Salvia praescriptis can. 62 1-634, vetantur privati tarn
cleric! quam laid sine Sedis Apostolicae aut proprii
Ordinarii et Ordinarii loci licentia, in scriptis data, sti-
pern cogere pro quolibet pio aut ecclcsiastico instituto
vel fine.
Private persons, whether clerics or laymen, are for-
bidden to collect alms for any charitable or ecclesiastical
institution or purpose, unless they have the written per-
mission of the Apostolic See or that of their own and of
the local Ordinary.
Concerning religious enough has been said under can.
621-624, which must be strictly followed. It is hardly to
be presumed that collectors will go about collecting alms,
as they formerly did,8 under false pretences, even promis-
ing people eternal joy. But churches are still being built,
and hospitals and schools erected, which require an appeal
to Christian charity. Hence this regulation, which is in-
tended to keep order.
Who are the private persons here intended ? All those
who beg without official or public capacity, authority or
warrant, no matter whether they belong to the ranks of
* C. 2, Clem. V. 9.
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 1504 561
the clergy or the laity. A pastor is no private person, and
may therefore collect within the boundaries of his parish,
but not beyond without the required permission, be-
cause outside his own district he has no official capacity.
It is a wise ruling, and in keeping with our canon, if dio-
cesan statutes forbid priests in charge of souls to collect
either directly or indirectly, for instance, by selling tickets
or chances.* The so-called chain-letters belong in the
waste-basket.
Are bishops allowed to collect in another diocese than
their own? Tf they have obtained the written consent of
the respective Ordinary, they certainly are allowed to
do so.
The text says, " for any charitable or ecclesiastical
purpose." This means that a pastor, or any other priest,
is not allowed to collect for others, say a hospital or sis-
terhood, unless he has the permission of the Apostolic
See (S. Congregatio Concilii ; can. 250), or of the two Or-
dinaries concerned. Of course, if the collector does not
cross the boundary line of another diocese, he needs only
the writter permission of his own Ordinary. If he has
obtained this, he requires no permission from the pastor
in whose parish he wishes to collect, although courtesy
may move him to apply for it. Besides, the diocesan
statutes must be observed.
the cathedraticum
Can. 1504
Ornnes ecclesiae vel beneficia Jurisdiction! Episcopi
subiecta, itemque laicorum confraternitates, debent
quotannis in signum subiectionis solvere Episcopo ca-
« Thus the diocesan statutes of but the first clause must now be
Leavenworth and St Joseph, n. 58; changed according to our canon.
>Ie
j ^ Original fro m
UNIVERSlfY OF WISCONSIN
562 ADMINISTRATIVE LAW
thcdraticum scu moderatarn taxain determinandarn ad
normam can. 1507, § 1, nisi iam antiqua consuetudine
fuerit determinata.
In Spain and in Italy it was customary, in the sixth cen-
tury, to pay two solidi to the diocesan bishop, either on
his visit or otherwise, "propter honorem cathedrae."*
This tribute was, as the Latin term shows, paid as a token
or earnest of the dependence and submission of the
church and clergy. After exemptions became more nu-
merous, the monasteries paid a certain tribute to the Holy
See as a sign of papal patronage and exemption from epis-
copal jurisdiction. Hence exempt regulars did not pay
the cathedraticum to their diocesan bishop unless they held
incorporated benefices or parishes.8 Those who were
wont to pay this tribute, usually offered it at the diocesan
synod, whence it came to be called synodaticum.
Our canon rules that all churches and benefices subject
to the jurisdiction of tlve bishop, as well as lay confra-
ternities, are obliged to pay annually, as a sign of subjec-
tion, the so-called cathedraticum, a moderate tax to be
levied according to can. 1507, § 1, unless some other
method exists by ancient custom.
Hence, (1) all churches and public oratories subject to
episcopal jurisdiction must pay the cathedraticum, even
though they may not have been subject to it formerly.
This certainly holds concerning all churches ruled by the
secular clergy. Churches or public oratories in which
exempt religious hold services for themselves only, and
not for outsiders, or for these only per accidens, need not
pay the cathedraticum. But if exempt religious have a
sCc. I, 4, 6, C. 10, q. 3— the « C. 16. X, I, 31; c. i, X, III,
underlying idea being that all 35.
churches sprang from the cathedral
church.
oogle
% ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1505 563
parish church, even though it be an abbey or a convent
church, or an incorporated public oratory, and even
though one of their own number acts as pastor or chap-
lain, they are obliged to pay this tax.7
(2) All benefices not exempt from episcopal jurisdic-
tion must also pay the cathedraticum. Thus canons bene-
ficiaries, who possess a distinct benefice, also the thcologus
and poenitcntiarius, are bound by this obligation.8
(3) Lay confraternities must pay the cathedraticum if
they own not merely a chapel erected in honor of a saint
in some church, but a church or public oratory of their
own, even though no benefice is connected with that
church or oratory.9
(4) The amount of this tribute was formerly estab-
lished at Hvo solidi (about $6.00) a year.10 But the Code
leaves it to be settled by provincial councils.
c
SUBSIDIUM CHARITATIVUM
c
Can. 1505
D
Loci Ordinarius, praeter tributum pro Seminario, de
quo in can. 1355, 1356, aut beneficialem pensionem de
qua in can. 1429, potest, speciali dioecesis necessitate
impellente, omnibus beneficiariis, sive saecularibus sive
religiosis, extraordinariam et moderatam exactionem
imponere.
• i
a
When there is particular need on the part of the dio-
cese, the local Ordinary may demand, besides the setni-
naristkum and the pension mentioned in can. 1429, a con-
3
7 Ibid., and the commentator!: H. 1760 (Richter, /. c. n. as).
Reiffensruel. PI, lit- 39. n. n 1; 8 S. C. C, March 18, 1775: April
Sanli-Lcitncr, HI. 39, n. 6; S. C. C, 7, 174* (Richter, /. e., n. 20 f).
Feb, 26, 1707 (Richter, Trid., p. 9 S. C C, May aj, 1734, July
33fi. n- 19): a'«° churches iurit- 34, 1734 (Richter. J. c, n. *4 f.).
patronatus laicatis; S. C. C, July 10 See cc. 4-61 C. 10, q. 3.
oogle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
564 ADMINISTRATIVE LAW
tribution from all beneficiaries, secular as well religious,
but this contribution must be moderate and can be dc-
H
manded only extraordinarily, not regularly. It is called
a charitable subsidy, and, as such, differs from the regular
diocesan taxes, though it may be demanded in justice, and
therefore under threat of penalty.
The term Ordinaries here, according to the common
opinion of canonists, based on the Decretals,11 means only
the bishops or Ordinaries themselves, not the Vicars-Gen-
eral.
Metropolitans cannot impose this tax on their en-
tire province, but only on their own archdiocese.12 Apos-
tolic administrators and coadjutors appointed by the Apos-
tolic See, also Vicars Capitular (our administrators) are
entitled to demand this subsidy.13
Those upon whom the subsidium ckaritativum may be
imposed are the beneficiaries, as explained under can.
1504, and to the same extent, also exempt religious if they
hold a parish church or other benefice.
The reason is stated as being a special need of the dio-
cese. Such special needs are : a large indebtedness con-
tracted by the bishop or his predecessor for the welfare of
the diocese; extraordinary support of the Apostolic See;
expenses required for the visitatio ad titnina or a journey
to a general or provincial council.14
It must, however, be observed that the S. Congregation
has forbidden bisbops to collect this subsidy if they pos-
sess a rich income or revenues (pingues reditus habentes)
or if no real and urgent reason exists, or if the benefici-
aries from whom the tax is demanded have but a bare
living.3
11 C. 6. I Prohibemus, X. Ill, 30. 1* Ibid., n. 31.
12 Reiffenstuel, III, tit. 37, n. ao. 15 S. C. C, Feb. 27. 1603 (Rich-
is Ibid., n. J3. ter, Trid., p. 336, n. 27).
§le
£ * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
CANONS 1506-1507 565
Can. 1506
D
Aliud tributum in bonum dioccesis vcl pro patrono
imponere ecclesiis, benefices aliisque institutis eccle-
siasticis, quanquam sibi subiectis, Ordinarius potest
tantummodo in actu fundationis vcl consecration is;
sed nullum imponi tributum potest super eleemosynis
Missarum sive manualium sive fundatarum.
Can. 1506 forbids Ordinaries to impose any other tax
besides those mentioned, for the benefit of the diocese or a
patron (advowee), upon churches, benefices, and other
ecclesiastical institutions, subject to their jurisdiction, ex-
cept on the occasion of their foundation or consecration.
All other taxes are against the common law (can. 1429)
and looked upon as either simoniacal or as an unjust
diminution of benefices. Never can a tax or contribution
be imposed upon either manual or foundation masses.
c
H
Can. 1507
§ 1. Salvo praescripto can. 1056 et can. 1234, praefi-
nire taxas pro variis actibus iurisdictionis voluntariac
vel pro exsecutione rescriptorum Sedis Apostolicae vel
occasione rninistrationis Sacramentorum vel Sacra-
mentalium, in tota ecclesiastica provincia solvendas,
est Concilii provincialis aut conventus Episcoporum
provinciae ; sed nulla vi pr aenni tio eiusmodi pollet, nisi
prius a Sede Apostolica approbata fuerit.
§ 2. Ad taxas pro actibus iudicialibus quod spectat,
servetur praescriptum can. 1909.
Can. 1507 governs the manner of fixing ecclesiastical
taxes. It should be done at a provincial council or meet-
ing of the bishops, but needs the approval of the Holy See
.'le
£ * ^ ^ %\*% Original from
UNIVERSITY OF WISCONSIN
566 ADMINISTRATIVE LAW
to have legal force. The taxes here comprised are (a)
those levied for the exercise of voluntary jurisdiction, i. #v
dispensations, commutations (except matrimonial dispen-
sations; can. 1056), and funeral taxes (can. 1234); (b)
the executoriae or fees for the execution of papal re-
scripts; (c) charges for the administration of the Sacra-
ments and sacramentals. Not included are taxes im-
posed for ecclesiastical trials, which are subject to the
rules laid down in can. 1909.
prescription
Can. 1508
Praescriptionem, tanquam acquirendi et se liberandi
modurn, prout est in legislation* civili respectivae na-
tionis, Ecclesia pro bonis ecclesiasticis recipit, salvo
praescripto canonum qui sequuntur.
E
• This canon admits for ecclesiastical property prescrip-
tion, as it is current or in vogue under the civil law in
each country ; the following canons limit prescription.
Prescription (called in Roman law usucapio) is the
mode of acquiring a title to property by long-continued
and uninterrupted possession. It also means freeing one-
self from an obligation due to another, for instance, tithes
or pensions, in which case the term signifies the loss of a
property right brought about by omission to assert the
same within a given time. Finally, prescription also has
the meaning of the period or time required for legal ac-
quisition or loss of this right.
The new Code accepts prescription in the same sense
and with the same conditions under which it operates
according to the laws of different countries, provided the
following canons are observed.
jle
I , Original fro rn
UNIVERSITY OF WISCONSIN
~
CANON 1509 567
—
Can. 1509
H
Praescriptioni obnoxia non sunt:
i.° Quae sunt iuris divini sive naturalis sive posi-
tivi;
2.0 Quae obtineri possunt ex solo privilegio apos-
tolico ;
3.0 Iura spiritualia, quorum laici non sunt capacesf
si agatur de praescriptione in commodum laicorum;
4.0 Fines certi et indubii provinciarum ecclesiasti-
carum. dioecesium. paroeciarum. vicariatuum apos-
tolicorum, praefecturarum apostolicarum, abhatiarum
vel praelaturarum nullius.
5.0 Eleemosynae et onera Missarum;
6.° Beneficium ecclesiasticum sine titulo;
7.0 Ius visitationis et obedientiae, ita ut subditi a
nullo Praelato visitari possint et nulli Praelato iam
su b sin t ;
8.° Solutio cathedraticL
Can. 1509 excepts from prescription the following ob-
jects and rights:16
i.° Things enjoined either by the natural or by divine
law, for instance, the right of parents to their children,
the primacy of the Roman Pontiff, the Sacraments, the
constitution of the Church.
1
2.0 Things that can be obtained only by an Apostolic
privilege, for instance, exemption of persons not com-
prised by law.
3.0 Spiritual rights of which laymen are incapable, if
prescription concerns things or rights in favor of laymen,
for instance, lay investiture, or election of laymen to an
ecclesiastical benefice.
"-.
■■■
lflCfr. the commentators on lib. II, tit 26; Wernx, I. c. III, n. 398;
p. 333 tj ice under can. 1701 ft.
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
568 ADMINISTRATIVE LAW
4.0 Certain and undisputed boundary lines of ecclesi-
astical provinces, dioceses, parishes, vicariates apostolic
and prefectures apostolic, abbacies and prelacies nullius.
5-° Alms or mass stipends and obligations ; however,
although these as such cannot be prescribed against by
any contrary custom, yet they may be transferred from
one to another; thus if the canons or prebendaries of a
church were in turn obliged to say and apply Mass for
the benefactors, this obligation could be imposed upon the
dean or provost of the chapter by prescription.17
6.° Ecclesiastical benefices obtained ivithout title, 1. e.,
without at least a titulus coloratus (see can. 1446).
7.0 The right of canonical visitation and obedience, so
that the subjects could not be visited by any prelate or
would not be under obedience to any prelate. But a mere
transfer of obedience or visitation from one prelate to
another {translativa praescriptio) may take place by pre-
scription.18 The fact is that exemption rested, centuries
ago, on prescription.
8.° The payment of the cathedraticum, which cannot
itself be subject to prescription, although the amount is
liable to prescription.19
Can. 1510
§ 1. Res sacrae quae in dominio privatorum sunt,
praescriptione acquiri a privatis personis possunt, quae
tamen eas adhibere nequeunt ad profanos usus; si vero
consecrationem vel benedictionem amiserint, libere ac-
quiri possunt etiam ad usus profanos, non tamen sor-
didos.
§ a. Res sacrae, quae in dominio privatorum non
ITS. C. C. June 17. "879; IS Reiffenstuel, II. 26, n. 52 ff.
April 37, 1901 (Anal. Eccl. IX, 201 l» Santi-Leitner, III. i% a. 6.
ff.).
'■-.
§le
k ,|,, Original from
UNIVERSITY OF WISCONSIN
CANONS 1511-1512 569
sunt, non a persona privata, sed a persona moral! ec-
clesiastics contra aliam personam moralem ecclesiasti-
cam praescribi possunt.
Can. 1510 concerns sacred things (res sacrae) owned
by private persons. These may be acquired by prescrip-
tion, but not used for profane purposes, unless they have
lost their consecration or blessing, and even then the pur-
pose must not be unbecoming (sordidus). Sacred objects
which are not owned by private persons cannot be ac-
quired by prescription by a private, but only by a juridical
person, against whom only an artificial person can pre-
scribe.
Can. 1511
§ 1. Res immobiles, mobiles pretiosae, iura et ac-
tiones sive personales sive reales, quae pertinent ad
Sedem Apostolicarn, spatio centum annorum praescri-
buntur.
§ 2. Quae ad aliam personam moralem ecclesias-
ticam, spatio trig^nta annorum.
Can. 151 1 reasserts the ancient privilege of the Roman
Church, against which only a prescription of 100 years
is admitted, no matter whether it concerns landed prop-
erty, precious movable property, rights, or personal as well
as real actions. Against other ecclesiastical corporations
or juridical entities a term of thirty years suffices for
prescription.
Can. 1512
Nulla valet praescriptio, nisi bona fide nitatur, non
solum initio possessions, sed toto possessionis tem-
pore ad praescriptionem requisito.
G Original from
OO^K_ UNIVERSITY QFWI5C0NSIN
570 ADMINISTRATIVE LAW
No prescription, however, is valid which is not based
upon good faith at the beginning as well as throughout
the whole period permitted for prescription. This rule
has always been upheld by the Church against the Roman
law, which required good faith only at the beginning.20
Hence modern civil law, which follows the Roman law,
cannot be accepted in this case. Good faith, which is
the prudent and sincere judgment that one holds or pos-
sesses a thing by right or without infringement of an-
other's rights, is required by natural law, because bad
faith would render the possession sinful and therefore
illicit, and no human or divine positive law could declare
it just or lawful.
donations and legacies
Can. 1513
§ 1. Qui ex iure naturae et ecclesiasti«o libere valet
de suis bonis statuere, potest ad causas pias, sive per
actum inter vivos sive per actum mortis causa, bona
relinquere.
§ 2. In ultimis voluntatibus in bonum Ecclesiae ser-
ventur, si fieri posstt, sollemnitates iuris civilis ; hae si
omissae f uerint, heredes moncantur ut testatoris vol-
untatem adimpleant.
He who, by natural and ecclesiastical law, is free to
dispose of his property, may bequeath the same, either by
donation or last will and testament, in favor of pious
institutions or causes.
Testamentary bequests of the faithful in favor of the
Church should, if possible, be made in legal form, i.e.,
20Cfr. cc. 5, 8, 17. ao, X, II, j6; 1 un. Irul., II, 6; 1. uq., Cod.,
VII. 31.
>Ie
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANONS 1514-1515
571
according to the rules prescribed by civil law. If this pre-
caution has been omitted the heirs must be admonished
to carry out the testator's will.
Wiclif 's propositions : that it would be sinful to found
convents, that to bequeath money to the clergy would be
against the teaching of Christ, and that the emperors were
mistaken in endowing the Church, were deservedly con-
demned.21 Nevertheless, the nineteenth century re-
vamped these impious theories."
The question whether a last will or donation not drawn
up in legal form is binding in conscience was decided by
the S. Poenitentiaria, which said that it is the Roman
practice to hold such legacies valid and binding in con-
science, but the heirs are easily admitted to an agreement
with the church or pious institution.28
Can. 1 5 14
Voluntates fidelium facultates suas in pias causas do-
nantium vel relinquentium, sive per actum inter vivos,
sive per actum mortis causa, diligentissime impleantur
etiam circa modum administrationis et erogationis
bonorum, salvo praescripto, can. 1 515, § 3.
Can. 15 15
§ 1. Ordinarii omnium piarum voluntatum tam mor-
tis causa quam inter vivos exsecutores sunt.
31-33 (Denzingcr, nn.
" Quanta Curs,"
21 Propp.
507-509).
22 Pius IX,
Dec 8, 1864.
28 S. 1'otnit, Jm. io, 1901 (.Coll.
P. F^ a. low). As to the legal
form to be observed in making wills,
■ee Am. Ecct. Rev., Vol. 33, 306 ff.;
aiao "After My Death," 1918;
Jones, Legal Forms, 7th ed. Notice
also that ** contracts to procure ■
third person to make a will in fa-
vor of a particular person or object,
or to use his influence to procure
guch testamentary disposition, are
illegal;" see Harriman, The Law of
Contracts, 1901, I 214.
►ogle
Original from
UNIVERSITY OF WISCONSI
~
572 ADMINISTRATIVE LAW
§ 2. Hoc ex iure Ordinarii vigilare possunt. ac de-
bent, etiam per visitationem, ut piae voluntates im-
pleantur, et alii exsecutores delegati debent, perfuncti
munere, 11 lis reddere rationem.
§ 3. Clausulae huic Ordinariorum iuri contrariae,
ultimis voluntatibus adiectae, tanquam non appositae
habeantur.
Can. 1514 and 1515 emphasize the great care which
the Church has ever bestowed on the faithful administra-
tion and distribution of property left by donation or be-
quest. They are specially intended for executors, who
arc obliged to attend to speedy execution, according to the
term permitted by civil law. In the business of execution
they must chiefly attend to the wording of the will. They
are not allowed to substitute one pious institution for an-
other, unless the document permits them to do so, nor are
they permitted to apply a legacy " for the poor " to one
poor person only. Among the poor those of the deceased
person's home town should be favored and the most needy
selected.3*
These general rules should also guide the Ordinaries,
who, according to can. 1515, are the executors of all pious
gifts, by donation as well as by last will (mortis causa).
They may and must, at the canonical visitation, take cog-
nizance of pious bequests, and other executors are obliged
to render an account to the Ordinaries after they have dis-
charged their office. Every clause which runs counter to
this right of the Ordinary must be looked upon as non-
existing.
" Ordinaries " here includes the superiors of exempt
religious. Religious, too, (except Friars Minor) may
21 Rciffcnstucl III, lit 26, n. 7"^ ff.
jle
Y ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1516 573
be executors of last wills, but must in each case obtain
previous permission from their superiors."
Can. 1516
§ 1. Clericus vel rcligiosus qui bona ad pias causas
sive per actum inter vivos, sive ex testamento fidu-
ciarie accepit, debet de sua fiducia Ordinarium cer-
tiorem reddere, eique omnia istiusmodi bona seu mo-
bilia seu immobilia cum oneribus adiunctis indicare;
quod si donator id expresse et oronino prohibuerit,
fiduciam ne acceptet.
§ a. Ordinarius debet exigere ut bona fiduciaria in
tuto collocentur et vigilare pro exsecutione piae volun-
tatis ad normam can. 15x5.
§ 3. Bonis fiduciariis alicui religioso commissis, si
quidem bona sint attributa loci seu dioecesis ecclesiis,
incolis aut piis causis iuvandis, Ordinarius de quo in
§§1,2, est loci Ordinarius ; secus, est Ordinarius eius-
dem religiosi proprius.
Can. 1516 plainly shows that not only the secular clergy
but religious, too, may be executors and trustees. If a
cleric or religious receives a donation or a bequest in
trust, he must notify his Ordinary of that fact and indi-
cate to him all the property held in trust, movable as well
as immovable, together with the obligations attached
thereto. Should a donor have expressly forbidden the
intervention of the Ordinary, no religious or cleric can
accept the bequest or donation."
The Ordinary must insist that the property held in trust
is safely invested and watch over the fulfillment of the tes-
tator's will, according to can. 1515. A safe investment,
according to Roman practice, is that in land.
25 lb., n. 777 ff-
si S. C. C. Aug. 7. 1909. (A. Ap. S., I, 766).
.'Ie
f* ^ 1 ils* Originalfrorn
UNIVERSITY OF WISCONSIN
574
ADMINISTRATIVE LAW
When a religious has received property in trust, the
Ordinary referred to in § i and § 2 of this canon is the
local Ordinary if the property is destined for a church of
the town or diocese, or for the inmates of charitable in-
stitutions existing in that town or diocese ; in all other
cases the Ordinary is the superior of the exempt relig-
ious ; for only exempt clerical superiors go by the name
of Ordinaries, according to can. 198.
It seems doubtless that by " loci sen dioecesis ecclesiis m
must be understood such churches as arc either incorpor-
ated or parish churches. For if a donation or bequest
were made to a church belonging exclusively to exempt
religious, who use it for their own purposes only, even
though it were a public oratory, it is incredible that the
local Ordinary should have to intervene. This interpreta-
tion is borne out by the obvious meaning of the term,
" dioecesis ecclesiae" churches of the diocese, in the geni-
tiznts subjectivus; for in that sense churches owned by re-
ligious, but not as parish or beneficiary churches, arc not
of the diocese, although in the diocese.
CHANGE OF LAST WILL
Can. 1517
§ z. Ultimarurn voluntatum reductio, moderatio,
commutatio, quae fieri ex iusta tantum et necessaria
causa debent, Sedi Apostolicae reservantur, nisi funda-
tor hanc potcstatcm etiam Ordinario loci expresse con-
cesserit.
§ 2. Si tamen exsecutio onerum impositorum, ob
imminutos reditus aliamve causam, nulla administra-
torum culpa, impossibilis evaserit, tunc Ordinarius
quoque, auditis iis quorum interest, et servata, meliore
quo fieri potest modo, fundatoris voluntate, poterit
*Ie
Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1517 575
eadcm onera aeque imminucrc, excepta Missarutn re-
ductione quae semper Sedi Apostolicae unice com-
pel! t.
■■
§ 1. To reduce, mitigate, or change testamentary be-
quests is reserved to the Apostolic Sec, which can pro-
ceed only for a just and necessary cause. The local Or-
dinary may act only if the founder has expressly granted
this power to him, and he too is bound by reasons of
justice and necessity, for both the natural and the divine
law, as well as positive law, demand that the last will of the
faithful be conscientiously executed and the money be-
queathed by them expended for those purposes for which
it was intended. It may not be applied to a seemingly
better cause, or in a more suitable manner, because such a
change would frustrate the last will of the testator and in-
jure the Church, since the faithful would hesitate to make
donations if they were not certain that the money would
be properly applied. Hence, even the Sovereign Pontiff
is bound by the law of justice and necessity and cannot
validly make a change or reduction " in a will without a
proportionate cause. It is therefore quite natural to find
that very rare use has been made of this power, and the
negative answers of the S. Congregatio Concilii are more
numerous than the permissive ones. Thus a change of a
ft
tnonsionariatus (simple benefice of a chapter) into a ean-
onicate was rejected ; a proposed change of manual masses
into chaplaincies was rejected, etc., etc.2*
§ 2. However, if, on account of decreased revenues or
for other reasons not due to faulty administration, the
obligations cannot possibly be complied with, the Ordinary,
after having heard those concerned, may equitably dimin-
27 S. C. P. P., 1807, {Coll., n. 27. 1734; June a6, 177* (Ricfatcr,
689). Trii., p. 164).
29 S. C. C, Nov. 4, 1705; Feb.
§le
% ,1,., Original from
UNIVERSITY OF WISCONSIN
576 ADMINISTRATIVE LAW
isfa the burdens, but must, as well as he is able, abide by
the will of the founder. From this power is excluded the
reduction of Mass obligations, which is reserved to the
Holy See.
This canon makes quite a concession to the Ordinaries,
because formerly such faculties were granted only for
very particular reasons of distance or slow travelling."
But the local Ordinaries are obliged in conscience to make
use of this privilege only for just and solid reasons. Be-
sides, since it has always been the practice of the Roman
Court to ascertain the probable or likely mind of the tcsta~
tor before permitting a change,80 this should also be the
guiding principle for Ordinaries. Here is a case in point :
A pious Catholic had left a sum of money for the pur-
pose of founding a home for poor girls exposed to danger.
The legacy proved insufficient (here the reason) and the
foundation appeared rather useless for the town in ques-
tion. Hence the money was assigned to a convent for
nuns on condition that they would receive a poor girl
without the dowry otherwise required (here the interpre-
tation of the probable desire of the founder).81
From this now ordinary episcopal power, in which ex-
empt religious superiors do not participate, is excluded
the reduction of mass obligations, which is strictly re-
served to the Apostolic See (S. C. Consilii), as will be
further explained in can. 1551.
20 S. C. P. F., 1807 a c). 81 S. C. C. Au£. 10. 17*4 CL C
SOS. C. C, Feb. la, 1735 and n. a).
pluries (Richter, /. c, p. 13s, n. 8>.
jle
Original fro ni
UNIVERSITY OF WISCONSIN
■-"
TITLE XXVIII
THE ADMINISTRATION OF CHURCH
PROPERTY
the sovereign pontiff
Can. 1518
Romanus Pontifex est omnium bonorum ecclesiasti-
corum suprcmus administrator ct dispcnsator.
The Roman Pontiff is the supreme administrator and
steward of all church property.
This right flows, of course, from the plenitude of his
power, which embraces the final end of the Church as well
as its means. Waiving the question as to the rights which
were formerly vindicated to him by reason of the relation
of vassalage that existed between some nations and the
Apostolic See,1 it is evident that the Code considers only
actual or prcscnt-day conditions. The name dispcnsator
was given to the Pope by St. Bernard * as well as by St.
Thomas. The Angelic Doctor says : The possessions of
the Church belongs to the Pope, not as their lord and
owner, but as their principal dispenser. This means that
the Pope may dispense or dispose of all church property,
even that owned by single corporations, in favor of the
universal Church if an urgent reason exists and the wel-
fare or tranquillity of the Church requires it. This
power is given for the edification of the society founded
1 See HergenriSther. Katlu Kitche 2 De Consideration/, 1. IV; see
und Ckrtitl. Stoat, 1872-1878. Fagnani in c. 7. Rectum, III, 50-
577
>Ie
% ,|,, Original from
UNIVERSITY OF WISCONSIN
578 ADMINISTRATIVE LAW
by Jesus Christ, not for its destruction, or for the enrich-
ment of the Pontiff or of his family or nation.3 There is
nothing absurd in the exercise of this power, for the State,
too, claims the right of eminent domain, in virtue of which
it confiscates or expropriates private property. The law
is based upon the well-known maxim : " Bonum priva-
tum cedere debet bono publico."
the local ordinaries
Can. 1519
§ 1. Loci Ordinarii est sedulo advigilare ad mini s-
trationi omnium bonorum ecclesiasticorum quae in suo
territorio sint nee ex eius iurisdictione fuerint sub-
ducta, salvia legitimis praescriptionibus, quae eidem
potiora iura tribuant.
§ 2. Habita ratione iurium, legitimarum consue-
tudinum et circumstantiarum, Ordinarii, opportune
editis peculiaribus instructionibus intra fines iuris
communis, universum administrationis bonorum ec-
clesiasticorum negotium ordinandum curent.
§ I. The local Ordinaries should watch carefully over
the administration of all church property located in
their dioceses, except that which has been withdrawn
from their jurisdiction. If lawful prescription gives the
bishop the right to administer property otherwise not sub-
ject to his power, he may make use of this right. The
reason is that the bishop has the " intentio fundata in
iute," i. e., the original right of administering all diocesan
property because he is the pastor of the whole territory.
Exemption, as the term implies, spells an exception
from the rule. Therefore, if exempt religious or other
I Benedict XIV, " Cum Encyclical/' May 24, 1754. I f
§le
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1520 579
exempt communities or individuals permit prescription
against themselves, the original right revives. But ex-
emption creates a right of independent administration as
far as the canons admit. For it signifies freedom from
episcopal jurisdiction as well as from the law of the dio-
cese; from the right in dando as well as from the right in
recipiendo, with due regard, of course, to the common
law.* But note well, the Ordinaries are only the admin-
istrators,8 not the dispensers of diocesan property.
Therefore § 2 of can. 15 19 provides that the Ordinaries
should regulate the whole business of the administration
of diocesan property according to the common law of the
Church and with due regard to special, lawful cus-
toms, which are the best interpreters of the law, and to
circumstances. To this effect, and with these objects in
view, they may issue, either in synod or outside, particular
statutes which bind the whole diocese, provided they
keep within the common law.
diocesan board of administration
Can. 1520
§ 1. Ad hoc munus rite obeundum quilibet Ordi-
narius in sua civitate episcopali Consilium instituat,
quod constet praeside, qui est ipsemet Ordinarius, et
duobus vel pluribus viris idoneis, iuris etiam civilia,
quantum fieri potest, peritis, ab ipso Ordinario, audito
Capitulo, eligendis, nisi iure vel consuetudine pecu-
liari iam alio aequivalenti modo legitime fuerit pro-
vision.
§ 2. Citra apostolicum indultum, ii a munere admin-
istratoris excluduntur, qui cum Ordinario loci primo
4 Cfr. c. 24, C. 13, q 1; c. rB, X, 6 S. C. P. F., April i, 1816 (Coll.
I, 31, and the gloss to the same. P. F., n. 713).
oogle
% ,|,, Original from
UNIVERSITY OF WISCONSIN
580 ADMINISTRATIVE LAW
vel secundo consanguinitatis vel affinitatis gradu
coniuncti sint.
§ 3. Loci Ordinarius in administrativis actibus
maioris momenti Consilium administrationis audire ne
praetermittat ; huius tamen sodales votum habent tan-
tum consultivum, nisi iurc communi in casibus speciali-
ter expressis vel ex tabulis fundationis corum con-
sensus exigatur.
§ 4. Sodales huius Consilii iusiurandurn de rnunere
bene ac fideliter adimplendo coram Ordinario emittan t.
§ I. In order that this business be properly attended
to, every Ordinary shall establish in his episcopal city a
board of administrators, consisting of the president, who
is the bishop himself, and two or three capable men, expe-
rienced also in civil law, if possible, to be appointed
by the Ordinary after having heard the advice of his
chapter (or consultors). Should there be in the diocese a
particular law or custom which provides an equally effec-
tive mode of administration, this may be retained. But
some kind of a council (consilium) there must be, ac-
cording to the admonition of the wise man : " Do noth-
ing without counsel, and thou shalt not repent, when
thou hast done." fl
§ 2. Excluded from this council of administrators are
all relatives in the first and second degree (affines et con-
sanguinei) of the local Ordinary, unless the Apostolic See
should grant a dispensation to the contrary.
§ 3. Local Ordinaries shall not fail to call the council
of administrators as often as any business of importance
is to be transacted. Such business would be alienation of
property, for which a papal indult is required, the effective
exercise of supervision over the administration of tern-
« Ecclui. 3a, 34.
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1521 581
poralities, and the rendering of accounts to be given an-
nually by those who are obliged to do so.T But the vote of
these administrators is advisory only, unless a decisive
vote is required in certain cases expressed in law or in
the charter of a foundation.
o
§ 4. The members of this board must take oath to the
effect that they will perform their duty well and faithfully.
It may be observed that these administrators may also
be laymen, provided, of course, they are Catholics.
ADMINISTRATORS OF INDIVIDUAL INSTITUTIONS
c
'--
Can. 1 521
§ 1. Praeter hoc dioeccsanurn Consilium administra-
tions, Ordinarius loci in administrationem bonorum
quae ad aliquam ecclesiam vel locum pium pertinent
et ex iure vel tabulis fundationis suum non habent ad-
ministratorem, assumat viros providos, idoneos et boni
testimonii, quibus, elapso triennio, alios sufficiat. nisi
locorum circurnstantiae aliud suadeant.
§ 2. Quod si laicis partes quaedam in administra-
tione bonorum ecclesiasticorum vel ex legitimo funda-
tionis seu erectionis titulo vel ex Ordinarii loci volun-
tate competant, nihilominus universa administratio
nomine Ecclesiae fiat, ac salvo iure Ordinarii visitandi,
exigendi rationes et praescribendi modum administra-
tionis.
§ 1. According to Roman as well as ecclesiastical law
each institution should have an administrator, or, as he
was formerly called, syfuficus.8 Our Code prescribes the
appointment of such syndics, in addition to the diocesan
7 S. C. P. F., Oct. 18, 1883, n. Clem., Ill, n; Trid., Sch. 7. c. 5;
XIV, (Coll., n. 1606). Sew. a5, c. 8, dc Rtf.
8Cfr. Cod. IuKt., I, a; e. 2,
Go >gle
Original from
UNIVERSITY OF WISCONSIN
582 ADMINISTRATIVE LAW
board of administrators. For all churches or pious in-
Q
stitutions which have no syndics either by law or charter,
the Ordinary should choose prudent and capable men of
good repute to administer the property. The term of
these administrators lasts three years, unless local circum-
stances counsel a more or less frequent change. It is
evident that our American parishes need no special admin-
istrators, because the parish priests themselves, aided by
the trustees, administer the property.
§2. If the charter or the will of the local Ordinary
calls upon laymen to take part in the administration of
ecclesiastical property, the whole administration must nev-
ertheless be conducted in the name of the Church, and
the Ordinary's right of visitation and of demanding a reg-
ular account and prescribing the mode of administration
must be safeguarded.
THE GENERAL DUTIES OF ADMINISTRATORS
~
The following canons set forth the duties of adminis-
trators appointed by law or charter or by order of the Or-
dinary; first, before assuming office:
Can. 1522
Antequam administrators bonorum ecclcsiasti-
corum. de qui bus in can. 1 521, suum munus ir.eant :
i.° Debent se bene et fideliter administraturos coram
Ordinario loci vel vicario foraneo iureiurando cavere ;
2.0 Fiat accuratum ac distinctum inventarium, ab
omnibus subscribendum, rerum immobiiium, rerum
mobilium pretiosarum aliarurnve cum descriptione
atque aestimatione earundem; vel factum antea in-
ventarium acceptetur, adnotatis rebus quae interim
amissae vel acquisitae fuerint;
gle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1523 583
3.0 Huius inventarii alteram exemplar conserve tur
in tabulario administrations, alteram in archivo
Curiae; et in utroque quaelibet immutatio adnotetur
quam patrimonium subire contingat.
■
Before they assume office, the administrators of church
property, (a) must take an oath before the local Ordi-
nary or the rural dean, by which they promise that they
will perform their obligations properly and faithfully.
(b) They must sign the inventory, which must be made
accurately and distinctly, of all the immovable property,
as also of precious movable goods, clearly described and
appraised ; or accept an inventory already made, which
should account for things either lost or acquired in the
meantime, (c) Of this inventory two copies must be
drawn up, one of which must be kept in the archives of
the administrative council and the other in the archives
of the diocesan court, in each of which all changes in the
property must be duly noted.
Can. 1523
Administratorcs bonorum ecclesiasticorum dili-
gentia boni patrisfamilias suum munus implere tenen-
tur; ac proinde debent:
i.° Vigilare ne bona ecclesiastics suae curae con-
credita quoquo modo pereant aut detriment um capiant ;
a.° Praescripta servare iuris tarn canonici quam
civilis, aut quae a fundatore vel donatore vel legitima
auctoritate imposita sint;
3.0 Reditus bonorum ac proventus accurate et iusto
tempore ezigere exactosque loco tuto servare et secun-
dum fundatoris rnentem aut statutas leges vel normas
im pend ere ;
4.0 Pecuniam ccclcsiac, quae dc expensis supersit et
G I Originalfrom
008IL UNIVERSITY QFWI5C0NSIN
584 ADMINISTRATIVE LAW
utilitcr collocari potest, dc consensu Ordinarii, in
emolumentum ipsius ecclesiae occupare ;
5. ° Accepti et expensi libros bene ordinatos habere ;
6.° Documenta et instrumental quibus iura ecclesiae
in bona nituntur, rite ordinare et in ecclesiae archivo
vel armario convenient! ct apto custodirc ; authentica
vero eorum exemplaria, ubi commode fieri potest, in
archivo vel armario Curiae deponere.
Administrators of ecclesiastical property should admin-
ister their oflke like a good father of a family ; in par-
ticular,
i.° They should see to it that nothing entrusted to
their care is lost or damaged ;
2.0 They shall observe the rules laid down by both
ecclesiastical and civil law, and the regulations imposed by
the founder or donor, or by lawful authority ;
3.0 They shall collect the revenues and fees (produce,
rent, etc.), at the proper time, keep them safely, and use
them in accordance with the will of the founder and the
rules of the charter;
4° They shall invest the surplus profitably, with the
consent of the Ordinary, and to the advantage of the
Church :
CD
5.0 They shall keep the books of income and expendi-
tures in good order ;
6.° They shall keep the holographs and title deeds of
the church in good order and place them in the archives
or safe of the church, and copies or abstracts in the dio-
cesan archives or safe.
Can. 1524
Omnes, et praesertim clerici, religiosi ac rerum ec-
clesiasticarum administratores, in operum locatione de-
oogle
% ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 1524 585
a
bent assignarc operariis honcstam iustamquc merce-
dem; curare ut iidem pietati, idoneo temporis spatio,
vacent; nullo pacto eos abducere a domestica cura
parsimoniaeque studio, neque plus eisdem imponere
operis quam vires ferant neque id genus quod cum
aetate sexuque dissideat.
This canon refers to a duty incumbent on administra-
tors of church property, which is of a preeminently social
character because it enjoins on them the obligation of
paying fair itagcs to workingmcn. All administrators, it
says, especially clerics and religious, must pay their em-
ployees a just and adequate wage; they should also see to
it that the workingmen be allowed a convenient time for
fulfilling their religious duties; they should never keep
them from their domestic duties or from habits of thrift
nor impose upon them more work than their strength, age
or sex enables them to perform. The whole famous en-
cyclical letter of Leo XIII "On the Condition of the
Working Classes " is here contained in a nutshell.9 We
will not, although the temptation is strong, dwell on this
point. On the one hand, an example is to be set of
really religious interpenetration of work and prayer, and
on the other, the world is to be shown that the Church is
CD
opposed to slavish drudgery, but not to wholesome social
and domestic pursuits. If priests and religious fail to do
justice to workingmen, how can the world expect enlight-
enment and guidance from the Church in the solution of
the labor question?
p
■-
b " Kerum Novarum," May 15, This canon also applies lo housc-
i&9>; '■ A. Ryan, A hiving Wage. keepers and janitors.
■
oogle
Original from
UNIVERSITY OF WISCONSIN
586 ADMINISTRATIVE LAW
special duties of administrators
Can. 1525
§ 1. Reprobata c on t rati a consuetudinc, administra-
tors, tarn ecclesiastici quam laicif cuiusvis ecclcsiae
ctiam cathedralis aut loci pii canonice erecti aut con-
fraternitatis, singulis annis officio tenentur reddendi
rationem administrations Ordinario loci.
§ a. Si ex pcculiari iurc aliis ad id designates ratio
reddenda sit, tunc ctiam Ordinarius loci vcl eius dele-
gatus cum his admittatur, ea lege ut aliter factae
liberationes ipsis administratoribus minime suffra-
gentur.
§ I of canon 1525 reprobates any custom contrary to
the duty, established by long standing law,10 of rendering
annual accounts to the local Ordinary. This law is bind-
ing on clerical as well as lay administrators
(a) Of every church, including the cathedral church,
and every public oratory, with the exception of churches
belonging to exempt religious exclusively and solely by
reason of their own service and for their own purpose,
without being a parish or incorporated church by way of a
benefice. Parish churches governed by religious must also
render an account of their administration.11
a
(b) Accounts must also be rendered of any and all
charitable or pious Institutions canonically erected, no
matter whether governed by secular or religious, even
exempt, clergymen. Thus, if religious conduct a hospital
or an asylum of any kind, an account must be given, the
reason being that such charitable institutions concern the
faithful, or the Church at large, and are often of the na-
10 C. n, C. 10. q. 1, {Synod. « C. 31, X, III, 5; «c can. 53a
Tolct. /F). £-i can. 1504.
oogle
% ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1526 587
ture of foundations connected with a last will.12 This
rule holds also concerning institutions under royal pro-
tection."
(c) The syndics of each and every confraternity, with-
out exception, even though affiliated with an archconfra-
ternity in the City of Rome, for instance, that of the
" Good Death," and even though it be erected in a
church of exempt religious,14 must likewise render an ac-
count to the bishop. Of course, this is to be understood
only of such confraternities as have revenues of their
own, and form at least a juridical entitiy (unr ente
morale).
■n
§ 2. If there is a special statute requiring that ac-
counts be rendered to others designated for that purpose,
the local Ordinary or his delegate must also be allowed to
inspect the accounts, and all stipulations made for the pur-
pose of excluding the Ordinary are void. Thus, for in-
stance, if a municipality is entitled to receive the account
of a pious foundation, which contains a clause to the effect
that the local Ordinary be excluded, this clause would be
invalid in the ecclesiastical court.18 The same is true of
a.
any custom that may have crept in against the present
canon.18
Can. 1526
Administrators litem nomine ecclesiae ne inchoent
vel contestentur nisi licentiam obtinuerint scripto da-
tam Ordinarii loci, aut saltern, si res urgeat, vicarii
12 Cfr. c. 2, Clem. Ill, 11, where " S. C. C, Sept 20, 1710; March
xenodocha. Uprosoriai, tleemosyna- 24, *7*5 (Richter, /. c, nn. 6 f.).
riar, kospitalia, tliuugh exempt, are *5 S. C. C, June 6, July ii, 1750
mentioned: ice T_eo XTII, " Ra- (Richter. /. r.. n. a).
manoM Pontificei," May 8, 188 1. W S. C. C, Jan. 18, 175; (ibid.,
»S. C. C, Dec. to, 1621, and n. 3).
jaefrius (Richter, Trid., p. 16$, n.
4*>.
jle
k ,] , Original fro ni
UNIVERSITY OF WISCONSIN
588 ADMINISTRATIVE LAW
J
foranei, qui statirn Ordinarium dc conccssa liccntia
ccrtiorcm rcddcrc debet.
Administrators of church property must not institute
or contest a lawsuit in the name of the church without
having obtained written permission from the local Ordi-
nary or, in urgent cases, from the rural dean, who
shall immediately inform the Ordinary when he has
granted such a permission.
" Nombxc ecclesiae " means in the name of the church
or pious foundation. For going to law the administra-
tors need the formal and written consent of the local Or-
dinary, because he is the administrator of all church prop-
erty in his diocese.
Can. 1527
§ 1. Nisi prius ab Ordinario loci facultatem impes
traverint, scriptis dandam, administratores invalide
actus ponunt qui ordinariae administrationis fines et
modum excedant.
§ 2. Ecclesia non tenetur respondere de contracti-
bus ab administratoribus sine licentia competentis Su-
perioris initis, nisi quando et quatenus in rem suam
versum sit.
If they disregard his advice and are defeated in a law-
suit, they are bound in conscience and by ecclesiastical
law to make up for the loss sustained. ,r The church is
not responsible for contracts made by the administrator
without the permission of the competent superior, unless
the contract is favorable. This favor ecclesiae is to be
extended to lawsuits as well.
-
According to § 1 of can. 1527, administrators per-
xtS. C. EE. ct RR., Nov. 19, 1850, ad i (Biuarri, I* c, p. \a%
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN J
a
N
p
CANON 1528 589
form even otherwise legal acts invalidly if they exceed the
limits and mode of ordinary administration without hav-
ing obtained the necessary written permission of the local
Ordinary.
Ordinary administration as a rule excludes the accept-
ance or refusal of legacies, bequests, donations, the pur-
chase of immovable property, mortgages and rents for
more than three years, alienation of precious objects, bor-
rowing a considerable sum, building new edifices and cem-
eteries, making repairs of importance, suppressing par-
ishes and institutions, imposing taxes or taking up collec-
tions.18 For all these acts, therefore, the bishop's per-
mission is required.
Can. 1528
Etsi ad adrainistrationem non teneantur titulo bene-
ficii vel officii ecclcsiastici, administratores qui munus
expresse vcl tacite susceptum arbitratu suo dimittunt
ita ut damnum ecclesiae obveniat, ad restitutionem
tenentur.
Administrators are obliged to restitution if they relin-
quish an office which they have either explicitly or tacitly
assumed and thereby cause loss to the church. This rule
holds even though they were not bound to act as admin-
istrators by reason of an ecclesiastical benefice or office.
Hence also laymen may be bound to make restitution
according to the rules laid down in moral theology.
ii S. C. P. F., July 11, 1856, n, so {Coll., n. 1137J.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
TITLE XXIX
CONTRACTS
ECCLESIASTICAL AND CIVIL CONTRACTS
s
Can. 1529
Quae ius civile in tcrritorio statuit dc contractibus
tarn in genere, quam in specie, sive nominatis sive
innominatis, et de solutionibus, eadem iure canonico
in materia ecclesiastica iisdem cum effectibus ser-
ventur, nisi iuri divino contraria sint aut aliud iure
canonico caveatur.
■
Whatever the civil law of a country determines with
regard to contracts, general and specific, named and name-
less, as well as payments, shall be observed also in ecclesi-
astical law and with the same legal effects, unless the civil
laws run counter to divine law, and, unless the canons
provide otherwise.
A contract is a formal agreement made between two or
more parties (" duorum vet plurium in idem placitum con-
sensus")} Contracts are sometimes divided into notni-
nati and innotninati, the former being such as have ob-
tained special names in law, as, for instance, contracts of
sale, rent, lease, whilst nameless contracts are comprised
under the fourfold class of: do ut des, facto ut facias, do
nt facias, facio ut des. The third is especially applied to
pious foundations (can. 1544)-
The essential elements of a contract are: the consent of
X Cfr. Engel, I, tit. 35, n. 7 ff.
590
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 1529 591
St
a
the contracting parties, their ability to contract, and the
consideration itself. The civil law prescribes formal-
ities or rules which must be observed in order that a
contract be valid. These formalities may concern all
contracts in general or only a certain class of contracts.
These civil formalities, says our canon, must be observed
even if the subject matter, or the consideration, or the
contracdng parties belong to the Church. But there are
two exceptions : ( 1 ) provided the contract does not con-
travene the divine positive law, and (2) provided the
canon law is not against its observance. Whether the
term " divine law " includes natural law is not quite evi-
dent. Neither is the doubt completely solved by can.
1513, where natural and ecclesiastical law only are men-
tioned, and where a will lacking the formalities required
by civil law is held to be valid in the court of conscience.
We leave it to the theologians to decide this problem.
Clearly opposed to divine law would be a civil law ex-
cluding ecclesiastical persons, either physical or moral,
from the right of making contracts. The ecclesiastical
law differs in some respects from the civil law with re-
gard to religious, as may be seen in can. 536. Against
ecclesiastical law is also the obligatory form of civil mar-
riage, which, besides, violates the divine law. These
exceptions admitted, it is safe to follow the civil law, be-
cause after all, a law worthy of the name should be noth-
ing else than a more detailed application of the natural
law, and jurists should be grateful that the new Code
offers an illustrious example of the conciliatory spirit of
the Church and her readiness to adapt herself to the rea-
sonable demands of the State. Modern jurists define a
contract as " a promise or agreement enforceable by law,"
but complain that the definition is not satisfactory.2 All
* Harriman, The Law of Contract*, 1901. 1 3 IT.i I 610 ff.
oogle
Original from
UNIVERSITY OF WISCONSIN
■
592 ADMINISTRATIVE LAW
more or less agree thai a formal contract at least needs the
support of law. Which is true, as far as material coer-
cion is concerned ; but a contract may be binding in con-
science. However, our Code accepts the fortnal contract
with the reservation pointed out. Formal contracts in
our law are those the existence of which can be established
by a record or a deed. Unilateral contracts impose an ob-
ligation on one party only, whereas bilateral contracts im-
pose obligations on both parties. Requisites for valid
contracts are set forth by the jurists as affecting the prom-
ise itself, the one who makes it, and the one to whom it is
made. Yet, though all the elements of a contract be
present, there may be a law which prevents their effecting
a contractual obligation, and therefore, renders a contract
illegal. Of these there are quite a number in canon law.*
alienation
Can. 1530
§ 1. Salvo praescripto can. 1281, § i, ad alienandas
res ecclesiasticas imrnobiles aut mobiles, quae servando
servari possunr, requiritur :
i.° Aestimatio rei a probis peritis scripto facta;
2.0 Iusta causa, idest urgens necessitas, vel evidens
utilitas Ecclesiae, vel pietas ;
3.0 Licentia legitimi Superioris, sine qua alienatio
invalida est
§ 2. Aliae quoque opportunae cautelae, ab ipsomet
Superiore pro diversis adiunctis praescribendae, ne
omittantur, ut Ecclesiae damnum vitetur.
at
Alienation implies the turning away of a thing from its
proper purpose or destiny.* From this it was but logical
a Ibui.. I 171 tt.
* Cfr. c. a, C. is, q. a: "quae >» rWijf ioxo aliena sunt propositi}.
>Ic
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1530 593
to apply the term to any act by which the ownership or
usufruct or any right belonging to the Church was trans-
ferred to another. However, it also implies a transfer
that is detrimental,5 which indeed is verified in any loss
of a right, but may nevertheless he more useful than its re-
tention. Besides, it must be remembered that the pur-
pose of Church property is wide, and that the poor and
captives always had a special claim on the property of
the Church. Hence the alienation even of sacred vessels
was not considered forbidden if captives had to be re-
deemed or the poor succored.0 Forbidden, however, was
any unwarranted and purposeless alienation, (under the
feudal system any alienation without the consent of the
Lord.)7 This is still traceable in the present legislation,
the reason for which is stated in can. 15 18.
Alienation, then, is the transfer of an object or right
from one to another and partakes of the nature of an
onerous contract, which involves a deterioration in the
condition of the holder. The acts by which this transfer
is made are : sale, exchange, payment, donation, mortgage,
leases for more than three years, bailment and security,
and cessio ittris, or cession of a right acquired, such as ad-
mitting a servitude.8 The objects or rights which are or
may be transferred by way of alienation are things of
material value or price (res pretio aestimubiles) ; hence
movable as well as immovable goods.
Movable goods are either such as can be preserved or
kept without loss, (quae servando scn.>ari possunt), for
instance, title deeds, books, treasures, etc. ; or things that
8 Thus c. 5a, C. \2, q. 2: " ut mt- sources of law; see Santi-Leitner,
liora prospicxat." Ill, 13, n. 1; Wcrnz, III, n. I54t
« Cfe cc. 14, 15, 70, C. 12, q. 2. who justly observes that a repudiatio
T DUckitonc-Coolcy, Commtnt., iucri, though illicit, is no alienation,
II, 288 f. because it « not yet property ac-
8 All these acts occur in the quired.
Go >gle
j , Original fro ni
UNIVERSITY OF WISCONSIN
594 ADMINISTRATIVE LAW
are easily consumed or corrupted, for instance, produce.9
Movable goods may be precious, or have little value, at
least for the time being. Precious things, can. 1497, § 2
says, are such as have a considerable artistic value (paint-
ings, sculptures by great artists) or a historical value
(manuscripts or archaeological objects) or are made of
precious material (jewelry, rare stones, pearls). The
term precious might also be applied to an entire library,
or to the sacred treasure of a church.
Immovable property consists of land, buildings, lakes,
rivers, mines, etc. These too are estimated in proportion
to their value, according to the canon * Terrulas" (c. 53,
c. 12, q. 2).10 Immovable, though incorporeal, property
are rights of way, the privilege of fishing or hunting,
etc. To give up such rights or privileges or to surren-
der them when in dispute (cessio litis), would be alien-
ation.
Alienation is not forbidden absolutely, for, as stated
above, this act signifies a deterioration of the material con-
dition of a church or corporation, which the common law
endeavors to prevent by administrative restrictions or
regulations. An absolute prohibition might involve a
summa iniuria, which the legislator certainly does not in-
tend. Therefore can. 1530 sets forth certain conditions
which render alienation lawful and valid.
For the alienation of sacred relics the express permis-
sion of the Holy See is required, according to can. 1281.
§ 1. All other ecclesiastical goods, whether immovable or
movable, may be alienated, under the following condi-
tions ;
8 To thi* class also belong: young lOThe value of this leu valuable
Btock, calves, pigs, lambs, chickens, property, according to an antiquated
the right of selling which canonists opinicn. would be about $50, or *S8
admit, but not the entire herd at francs; Sanli-Leitner, /. c, n. 6.
once.
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1530 595
l.° An appraisement of the goods must be made by
conscientious experts;
2.0 There must be a just cause, i. e.t urgent necessity, or
evident utility on the part of the church, or piety;
3.0 The competent superior must give his permission,
without which alienation would be invalid.
The superior may also prescribe other precautions and
formalities, as the circumstances of the case may demand,
in order to prevent damage to the church.
Here it may be noted that perishable or easily consum-
able goods require no formalities ; hence live stock or pro-
duce may be bought, sold, or exchanged without any
scruples of conscience, unless the competent superior has
prescribed special rules, as, for instance, that no exports
shall be made in time of public calamity beyond certain
boundaries, or nothing be bought from a place or country
infected by a contagious disease or an epidemic.
Valuation or appraisement is not required under pain of
nullity. Nor is the cause required under such a penalty.
However, if alienation were made without any reason,
the one who made it to the detriment of the church would
certainly be obliged to restitution, because administrators
of church property are not possessors, but trustees.
Just reasons for lawful alienation are these three: ne-
cessity, utility, piety. Necessity must be urgent here and
now, for instance, the paying of a debt, redeeming a mort-
gage, the indispensable support of the ministers, repair of
the church, etc. The utility must be evident, i. e., consid-
ering all the circumstances of the case, alienation must be
more profitable than the retention of the property, for in-
stance, buying a piece of property to round out one al-
ready held, a rare occasion of buying a library, etc. Piety
may mean gratitude towards those from whom we have
received favors, aid and succour of the poor and captives,
GrtruiL* Original from
OOglL UNIVERSITY 0FWI5C0NSIN
596
ADMINISTRATIVE LAW
as stated above, in fact the whole field of practical cor-
poreal works of Christian mercy and charity.
Can. 1531
§ 1. Res alienari mi n ore pretio non debet quarn
quod in aestimatione indicatur.
§ 2. Alienatio fiat per publicam licitationem aut sal-
tern nota reddatur, nisi aliud ci rcumsta n t iae suadeant ;
et res ei concedatur qui, omnibus perpensis, plus
obtulerit.
§ 3. Pecunia ex alienationc percepta caute, tuto et
utiliter in commodum Ecclesiae collocetur.
This canon rules, not, however, under pain of nullity,
i.° That no thing should be alienated for less than what
it was appraised at, because this would involve injustice
and grafting;
2.0 That alienation should take place by auction, or
at least by advertisement of a public sale, unless circum-
stances advise the contrary ; and the property to be dis-
posed of should, everything being considered, be given to
the highest bidder ;
3.0 That the sum realized from alienation should be
invested safely and profitably.
Concerning the public auctioning of church property,
the rules usually given by canonists are somewhat out of
date and inapplicable to modern conditions.11 But public
auction is still commendable, in as much as it is apt to
prevent favoritism and nepotism. For the rest, the civil
law governing public auctions may safely be followed.
Circumstances may demand less publicity, as when church
property has to be sold on account of bankruptcy, or to
nBencd. XIV, " Eisendo," Nov. 23, 174a* S. C. EE. ct RR., Match
18, 184^ 'Binrarri, /. c, p. 6a {.).
►ogle
Original fro ni
UNIVERSITY OF WI5C0NSI
—
Q
—.
CANON 1532 597
protect the church against an iniquitous civil law, or to
spare the good name of an institution.12
Can. 1532
§ 1. Legitimus Superior de quo in can. 1530, § 1, n.
3, est Sedes Apostolicav si agatur :
x.° De rebus pretiosis;
2.0 De rebus quae valorem excedunt triginta mil-
lium libellarum seu francorum,
§ 2. Si vero agatur de rebus quae valorem non ex-
cedunt mille libellarum seu francorum, est loci Ordi-
narius, audito admini.strationis Consilio, nisi res min-
imi momenti sit, et cum eorum consensu quorum in-
terest.
§ 3. Si denxque de rebus quarum prctium continetur
intra mille libellas et triginta millia libellarum seu
francorum, est loci Ordinarius, dummodo accesserit
consensus turn Capituli cathedralis, turn Consilii ad-
ministrationis, turn eorum quorum interest.
§ 4. Si agatur de alienanda re divisibili, in petenda
licentia aut consensu pro alienatione exprimi debent
partes antea alienatae ; sccus licentia irrita est.
Can. i$32 determines the lawful superior whose per-
mission is required for valid alienation. This superior is :
i.° The Apostolic See, i. e., the S. C. Concilii (can. 250,
§ 2), if (a) precious things of any kind or amount are to
be alienated, for they are not precisely appraised in our
12 That the investment should be cinioti of the S. C. C, qnoted in the
made in safe securities, is a wise Irish Eccl. Record, Jan., 1920, p. 67,
ruling, but has nothing to do with the answer there given shoots be-
the validity of the act, if the sum yond the mark and is against can.
docs not exceed the value stated in 1530, 8 1. n. 3.
can. 153a. Hence, despite the de-
jle
j , Original fro m
UNIVERSITY OF WISCONSIN
598 ADMINISTRATIVE LAW
a
tranon; or (b) if property is to be disposed of, the value of
which exceeds the sum of 30,000 lire (or francs),18 i.e.,
about $6,000 to $10,000.
2° If the value of the property to be alienated does not
exceed the sum of 1,000 lire (or francs), i.e., about $200,
the local Ordinary may proceed after having heard the ad-
vice of the board of administrators — unless the property
is of very little value — and with the consent of those con-
cerned.
a
"Those concerned" are the contracting parties, who,
however, must be in a condition to give their consent.
While a benefice is vacant, or while an episcopal see is
vacant, no alienation of property belonging to the benefice
or to the mensa episcopalis is permitted, even though the
amount would be small. Hence the canon *' Terrulas "
SI
cannot be applied here, because it would be contrary to
can. 436 : " Sede vacante nihil innovetur" u
3.0 If the value of the property to be alienated is be-
tween 1,000 and 30,000 lire (or francs), the local Or-
dinary may proceed, provided a threefold consent has been
obtained, viz., (1) that of the cathedral chapter (or dio-
cesan consultors), which must be given callegiaiiter, t. e.,
by vote at a meeting; (2) the consent of the board of ad-
ministrators, and (3) that of the persons concerned. The
penalties are stated in can. 2347.
4.0 If the property to be alienated is divisible, the
parts which have been previously alienated must be men-
tioned in the petition for permission or consent, under
pain of nullity. 'Hence no concealment is admissible, be-
cause it may endanger the validity of the transaction.
is What was said under can. 534 1* Set C 1, X, III, 9; S. C. EE.
<iee thi« Commentary, Vol. Ill, p. et RR., June 14, 1788 (Bizxarri, L
186) must be reaffirmed, provided, c, p. 40 f.).
of course, the valuta is normal.
jle
j , Original from
UNIVERSITY OF WISCONSIN
CANONS 1533-1534
599
-■
This holds concerning the papal indult as well as with
regard to anyone's consent.
We call attention to can. 8r, which certainly may be ap-
plied in cases that brook no delay or where delay would
entail serious loss.
formalities of alienation
Can. i 533
Sollcmnitatcs ad normam can. 1530-1533 r e qui run-
tur non solum in alienatione proprie dicta, sed etiam
in quolibet contractu quo conditio Ecclesiae peior fieri
possit
Can. 1533 applies the formalities set forth in can. 1530-
1532 not only to alienation in the technical sense of the
word, but to any contract by which the status of the
Church might be impaired. Prelates may improve the
condition of their churches, but are not allowed to render
it worse.16 A deterioration, may be brought about by
mortgages or securities as well as by donations (see can.
1535) and onerous contracts.1* Alms or offerings col-
lected by missionaries also constitute ecclesiastical prop-
erty and may not be acquired or disposed of at will by the
missionary, even though it were for the benefit of the mis-
sion.17 This rule, of course, includes the making of
debts, which is always dangerous, especially if done by
such as do not know the value of money or lack business
capacity.
Can. 1534
§ 1. Ecclesiae cornpetit actio personalis contra eum
qui sine debitis sollemnitatibus bona ecclesiastica
alicnavcrit et contra eius heredes ; rcalis vcro, si alien-
1BC. a, X. Ill, 24.
ltC a, X, III, aj.
Go >gle
it S. C. P. F., May 27, i88x
{Coll, n. 1553); we can. 534-
Original fro ni
UNIVERSITY OF WI5C0NSI
600 ADMINISTRATIVE LAW
atio nulla fuerit, contra quemlibet possessorem, salvo
hire emptoris contra male alienantem,
§ 2. Contra invalidam rerum ecclesiasticarum aliena-
tion em agere possunt qui rem alienavit, eius Superior,
utriusquc successor in officio, tandem quilibet clericus
illi ecclesiae adscriptus, quae damnum passa sit.
The Church, t. e., each single church corporation, or
juridical entity (through its syndic) has the right to bring
a double action. A personal action may be brought
against anyone who has alienated church property with-
out observing the formalities required by law. This ac-
tion, brought to recover the damage or property itself, is
also extended to the heirs of the one who is guilty of
illegal alienation, because the heir is supposed to be iden-
tical in law with the deceased who acted unlawfully.
'Real action may be brought, in case of invalid alienation,
against any one who acquired church property that was
alienated illegally, even if he bought it in good faith.
However, the possessor thus brought to law may, on his
side, bring suit against the one who performed an illegal
alienation.18 But it also must be added that if the illegally
alienated property was obtained by personal action, no
real action is to be brought against the possessor, because
the same thing cannot be demanded twice, and vice versa.
§ 2 says that invalid alienation can be revoked either by
the alienator himself, or by his superior, or by the succes-
sor of either, and, finally, by any clergyman assigned to
the church which has sustained a loss by the invalid alien-
ation. The text from which our canon is taken threat-
■
ens with penalties the clergyman who neglects to denounce
the illegal alienator or donator.19
isCfr. c. 6, X, III, 13; I. 3. X, 14: c. 2, x$ III, 24 (igainst dona-
III, ai ; Reiffenstuel, III, 13. n. 62. tion).
idC. 6, x. III, 13; c. 2, x, III,
{ "i\<-uiL* Original from
jrVjOOgK. UNIVERSITY OF WISCONSIN
CANON 1535 601
DONATIONS
Can. 1535
Praclati et rectores dc bonis mobilibus suarum cc-
clesiarum donationes, praeterquam parvas et modicas
secundum lcgitimam loci consuctudincm, facerc ne
praesumant, nisi iusta intcrvcnientc causa remunera-
tionis aut pietatis aut christianae caritatis; secus do-
natio a successoribus revocari poterit.
Prelates and rectors are allowed to make only small
and moderate donations from the movable property of
the Church, according to legitimate local custom ; large
donations may be made only for a just reason, as reward,
piety, or Christian charity. Donations made against this
rule may be revoked by the successors.
Donations are free gifts and are here understood of
movable property only, to the exclusion of immovable
property.20 Since prelates are not the owners of church
property, but only the administrators, they are not allowed
to deteriorate the condition of their church. Therefore
only small and infrequent donations are permitted. The
judgment concerning quantity and quality is left to the
donor, who must be guided by local custom and by the
circumstances of time and persons. But local custom
must not be stretched so as to cover large donations be-
cause such a custom would be a corruption and therefore
unreasonable. However three reasons may justify larger
and more important donations: reward or remuneration,
piety, and charity. Reward is here understood as a re-
muneration for services done to the church or to the
20 n is evident that the text in- mortit causa, made to go into effect
tends only donations inter vivos, after the donor's death; sec cotn-
eifts to living persons, not donations mentators on lib. III. tit 24.
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
602 ADMINISTRATIVE LAW
prelate or rector, provided a certain equality or propor-
tion be observed between the merits and the reward.
Piety, as stated, may signify gratitude and duty either to
one's relatives and friends, or to outsiders. Household.
town, and diocese should determine the gradation.
Christian charity is wider, embracing, as it does, all causae
piae of every description. But the donor must always
keep in view the condition of the church ; for to go beyond
the means at hand would be unreasonable and involve an
unjusticc.21
■
Can. 1536
§ z. Nisi contrariurn probetur, praesumendum ea
quae donantur rectoribus ecclesiarum, ctiam religioso-
rum, esse ecclesiae donata.
§ 2. Donatio facta ecclesiae, ab eius rectore seu Su-
periore repudiari nequit sine licentia Ordinarii.
§ 3. Repudiata illegitirne donatione, ob damna quae
inde obvenerint actio datur restitution^ in integrum
vel indemnitatis.
§ 4. Donatio ecclesiae facta et ab eadem legitime
acceptata, propter ingratum Praelati vel rectoris ani-
mum revocari nequit.
§ r says that donations made to rectors of churches,
secular or religious, are supposed to be made to the church,
unless there is reason to presume the contrary (see can.
I 533). 2s
§§ ;? and 3 lay down certain rules concerning the refusal
of donations. In order lawfully to refuse a donation
made to a church, the rector or superior of the same needs
the permission of the Ordinary. An illegal refusal, if a
II Reiffenstuel. III. 24. n. 37 ff-
22 See this Commentary, Vol. Ill, p. 182.
jle
% ,1 , Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
-
CANONS 1537-1538 603
loss is caused thereby, justifies an action for restitutio in
integrum or indemnity.
§ 4 departs from the Decretals," inasmuch as the Code
does not permit a donation made to a church and lawfully
accepted by the latter, to be revoked on account of ingrat-
itude or enmity on the part of the prelate or rector.
Can. 1537
Res sacrae ne commodentur ad usum qui carundem
naturae repugnet.
Sacred things, i. e., such as have received ecclesiastical
consecration or blessing," may not be loaned for a pur-
pose repugnant to their nature. Thus a church should
never be turned into a concert hall, a chalice is not to be
used for banquets," even though it were only by a tran-
sitory loan and the money were sorely needed. The rule
is absolute and admits of no exception.3'1
mortgages and debts
Can. 1538
§ 1. Si ecclesiae bona, legit ima interveniente causa,
oppignoranda vel hypothecae nomine obliganda sint,
vel agatur dc aere alieno contrahendo, legitimus Su-
perior, qui ad normam can. 1532 liccntiam dare debet,
exigat ut antea omnes, quorum interest, audiantur, et
curet ut, cum primum fieri poterit, aes alienum sol-
vatur.
§ 2. Hac de causa annuae ratae ab codern Ordi-
21 C. 10, x, III, 24 admitted revo- S4 Can. 1497, 9 J.
cation on account of qualified ingrat- SB Sec Dan. 5, 2 i.
itudc, such u violence, atrocities, ao Reg. Iuri» 51 in 6".
■eriotit injury.
jle
£ * ^ .. %\s* Original from
UNIVERSITY OF WISCONSIN
6<h ADMINISTRATIVE LAW
St
nario praefiniantur quae exstinguendo debito sint de-
stinatae.
-
■
§ i. If, for a lawful reason, church property has to be
pawned or mortgaged, or debts have to be made, the law-
ful superior who is entitled to grant permission, accord-
ing to can. 1532, shall first hear all concerned, i. c, the ad-
ministrators and rectors, or syndics, an<i endeavor to pay
off the debt as soon as possible.
§ 2. For this purpose the Ordinary should determine
the amount of annual payments. If the church has tixcd
revenues, this may be done by subtracting the necessary
amount therefrom.81 But if no fixed endowment or rev-
enues are available, as is the case with most of our
churches, a u sinking fund " should be established to wipe
out the debt.
sale and exchange
Can. 1 539
§ i. In venditione aut permutatione rerum sacrarum
nulla ratio consecrationis vel benedictionis in pretii
aestimatione habeatur.
§ 2. Administratores possunt titulos ad latorem,
quos vocant, commutare in alios titulos magis aut sal-
tern aeque tutos ac frugiferos, exclusa qualibet com-
mercii vel negotiationis specie, ac de consensu Ordi-
narii, dioecesani Consilii administrationis aliorumque
quorum intersit.
§ 1. When sacred things are sold or exchanged, the
fact that they are consecrated or blessed shall not influ-
ence their valuation, 1. c, no higher price can be lawfully
27 S. C P. F., July 30. 1867, n.4 (Coll., n. 1310).
>Ie
j , Original from
UNIVERSITY OF WISCONSIN
CANONS 1540-1541
605
charged for a consecrated or blessed object merely be-
cause it is consecrated or blessed. To do so would be
simony.28
§ 2. The administrators may convert notes payable to
bearer into other titles or investments which are safer
than, or at least equally safe and profitable as, the former.
In doing so, however, they must avoid every species of
trading or speculation, and, besides, obtain the previous-
consent of their Ordinary, of the diocesan board of ad-
ministrators, and other interested persons.
administrators and relatives excluded
Can. 1540
Bona ecclesiae immobilia propriis administratoribus-
corumque coniunctis in primo aut secundo consan-
guinitatis vel affinitatis gradu non sunt vendenda aut
locanda sine special! Ordinarii loci licentia.
Immovable church property cannot lawfully be sold or
leased to the administrators themselves, or to persons re-
lated to them in the first or second degree either by blood
or marriage, without special permission of the local Or-
dinary.
lease or rent
Can. 1 54 1
§ 1. Contractus locationis alicuius fundi ecclesiastic!
ne fiant, nisi ad norma n can. 1531, § 2; et in iis ad-
dantur semper conditiones de limitibus custodiendis,
de bona cultione, de rite solvendo canone, de opportuna
cautela pro conditionibus implendis.
as See can. 730.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
606 ADMINISTRATIVE LAW
a
a
§ a. Pro locationc bonorum ccclcsiasticorum, ser-
vato praescripto can. 1479:
i.° Si valor locationis excedat triginta millia libel-
larum seu francorum et locatio sit ultra novcnnium,
rcquiritur bcncplacitum apostolicum ; si locatio non sit
ultra novcnnium, servari debet praescriptum can. 1532,
I §3;
2.0 Si valor contineatur intra mille libellas et tri-
ginta millia libellarum seu francorum et locatio sit
ultra novenniurn, servari debet praescriptum eiusdem
can. 153a, § 3 ; si locatio non sit ultra novenniurn, prae-
scriptum eiusdem can. 153a, § a;
3.0 Si valor non excedat mille libellas seu francos
et locatio sit ultra novcnnium, servari debet praescrip-
tum can. 1533, § a; si locatio non sit ultra novcnnium,
fieri potest a legitimis administratoribus, rnonito Or-
dinario.
.:
C
§ T. Land belonging to a church should not be rented
except by public auction or announcement, as stated under
can. 1531, § 2, and exact conditions must be laid down
in the lease or rent contract as to the boundaries, appro-
priate methods of cultivation, payment of rent, and the
necessary safeguards for the fulfillment of the conditions.
§ 2. Anticipated payments being excluded according to
can. 1479, the following rules must be observed in leasing
or renting church property:
l.° If the rental exceeds 30,000 lire (or francs) and the
lease is made for more than nine years, a papal indult is
required ; if the contract is made for less than nine years,
the local Ordinary may give the permission, with the con-
sent of his cathedral chapter (or diocesan consultors), the
board of administrators, and those interested.
2.Q If the rental is between 1,000 and 30,000 lire (or
Go >gle
. 1 , Original fro m
UNIVERSITY OF WISCONSIN
CANON 1542
607
francs) and the lease runs more than nine years, the local
Ordinary may grant permission, with the consent of those
just mentioned ; but if the contract is made for less than
nine years, the local Ordinary has only to consult with the
board of administrators and obtain the consent of those
concerned.
3.0 If the rental is less than 1,000 lire (or francs) and
the contract reads for more than nine years, the local Or-
dinary has to consult with the board of administrators
and obtain the consent of those concerned; if the con-
tract is for nine years or less, the administrators them-
selves may sign the contract and notify the Ordinary.
The Code has extended the time limit from three to
nine years.
Can. 1542
§ 1. In emphyteusi bonorum ecclesiasticorum em-
phyteuta nequit canonem redimere sine licentia legi-
timi Superioris ecclesiastici dc quo in can. 1532 ; quod
si rcdemerit, earn saltern pecuniae vim ecclesiae dare
debet, quae canoni respondeat.
§ 2. Ab emphyteuta congrua exigatur cautio pro
solutione canonis et conditionibus implendis ; in ipso
instrumento pacti emphyteutici forum ecclesiasticum
arbiter statuatur ad dirimendas controversial inter
partes forte exorituras et expresse declaretur melio-
rationcs solo cedere.
Emphyteusis has little practical value, at least in our
law. Ancient jurists distinguished it from locatio, de-
fining the latter as an informal contract by which the usu-
fruct, or use, of an object, or the labor of a person is let
or hired, •" whereas emphyteusis was a species of indefinite
c-» Santi-Lettn*r. III. 18, n. 11 n. ji.
►ogle
Original from
UNIVERSITY OF Vi-'ISCONSI
608 ADMINISTRATIVE LAW
lease of immovable property, under which the tenant paid
rent, but had all but the nominal ownership of the land.50
Enfeoffment would most nearly correspond to emphyteu-
sis ; but the general term lease conveys the idea just as
well. Now our canon says that the lessee of church
property cannot redeem the rent without the permission
of the competent ecclesiastical superior, and if he does
redeem the fee — which is generally paid annually — he
must give at least as much as the whole rent for the entire
time would amount to. Besides the lessee must give se-
curity for the payment of the rent and for complying with
the other conditions. The lease itself must contain the
clause that the ecclesiastical court is the competent court to
settle disputes between the parties and that all improve-
ments accrue to the soil.
interest
Can. 1543
Si res fungibilis ita alicui detur ut eius fiat et postea
tantundem in eodem genere restituatur, nihil lucri,
ratione ipsius contractus, percipi potest; sed in prae-
statione rei fungibilis non est per se illicitum de lucro
legali pacisci. nisi constet ipsum esse imrnoderatum,
aut ctiam de lucro maiore, si iustus ac proportionatus
titulus suffragetur.
" Fungible " goods are such as can be replaced in kind.
If such goods arc given to a person in such a way that he
becomes the owner thereof, and are restored in kind to the
same amount, no interest can be demanded by reason of
the contract itself, for it would be usury to demand back
so Blftckstone-Coolcy, Comment., II, 309 ff. ; Stimson's Law Dictionary.
ion, j. if. "Emphyteusis."
'le
£ * ^ .. -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 1543 609
Of
a
more than was given (" nihil in mutuo vi mtitui accipien-
dum ultra sortem prineipalem"). However, it is not
per se forbidden to make loans under the usual legal con-
ditions, provided no excessive interest is charged ; nor is
it forbidden to stipulate a higher rate of interest if a just
and proportionate reason can be advanced.
The quintessence of this canon is that interest on loans
is permitted according to the usual and legal rate, not pre-
cisely by reason of the contract, but by reason of the risk
incurred and other circumstances."
-
aa Cfr. Bened. XIV, " Vis per- the documents referring to theie
mit," Nov. 1, 1745; S. C. P. F., subjects are given and
Xnstr. 1873 {Coll., n. 1393. where ii treated ex profeuo).
venit," Nov. 1, 1745; S. C. P. F., subjects arc given and the qucttion
o
I Originalfrom
1 K H '8ie UNIVERSITY OF WISCONSIN
■
TITLE XXX
PIOUS FOUNDATIONS
definition
Can. 1544
§ 1. Nomine piarum fundationum significantur bona
temporalia alicui personae morali in Ecclesia quoquo
modo data, cum onere in perpetuum vel in diuturnum
tempus ex reditibus annuis aliquas Missas celebrandi,
vcl alias praefinitas functiones ccclcsiasticas explendi,
aut nonnulla pietatis et caritatis opera peragendi.
§ 2. Fundatio, legitime acccptata, naturarn induit
contractus synallagmatic! : do ut facias.
Can. 1545
Loci Ordinarii est normas praescribere de dotis
quantitate infra quam pia fundatio admitti nequeat et
de eius fructibus rite distribuendis.
The term " pious foundation " signifies temporal goods
conveyed to some ecclesiastical juridical person with the
perpetual or long-continued obligation to say Masses, or
to perform certain ecclesiastical functions, or works of
piety or charity, in consideration of the revenues received
from said endowment. Hence every foundation, after it
has been duly accepted, has the nature of a bilateral con-
tract: " do ut facias"
If Title XXVI is compared with the present, the dif-
610
OOglL UNIVERSITY QFWI5C0NSIN
CANON 1545 611
ferencc between them may appear very slight ; however,
there is a distinction between the institutions mentioned
there and the foundations named in our canon. First,
temporal goods enter into can. 1544, in directo, whereas in
can. 1489 they are omitted as a member of the definition.
Resides, our canon presupposes an artificial person al-
ready in existence, whereas can. X489 mentions a decree
that creates such persons. In other words, there is a juri-
dical person existing either really or at least by a legal fic-
tion and represented by legal authority. Lastly, the pur-
pose of a pious foundation does not constitute the legal
person, but obliges the respective person to perform cer-
tain things or acts in consideration of the goods donated.
There is the temporal element on one side and the spiritual
on the other, and between both stands the mediator, viz.,
the moral person. Hence such foundations can be called
neither corporations nor institutions, but there is a jurid-
ical person who accepts the object of the contract, and the
contract itself is called: "do xtt facias!' For in every
contract, whether express or implied, there must be some-
thing given in exchange for something else, a mutual or
reciprocal consideration. This is the case between master
and servant, or employer and employee, when the former
agrees to give the employee a certain sum for performing
certain work. Hence the do are the temporal goods,
while the Ui facias is the performance of certain works.
But since the works to be performed are mostly spiritual,
it is necessary that the competent authority should inter-
vene. Hence can. 1545 demands that the local Ordinaries
should fix the minimum of endowment below which no
pious foundation may be accepted, as well as the manner
in which the interest is to be distributed. This is some-
what similar to fixing the amount of mass stipends.
§le
( * -» -. iL-. Original from
UNIVERSITY OF WISCONSIN
612 ADMINISTRATIVE LAW
safeguards of foundations
Can. 1546
§ x. Ut huiusmodi fundationcs a persona morali ac-
ceptari possint, requiritur consensus Ordinarii loci, in
scriptis datus. qui cum ne praebeat, antequam legitime
compererit personam moralem turn novo oneri sus-
cipiendo, turn antiquis iam susceptis satisfacere posse;
maximeque caveat ut reditus omnino respondeant one-
ribus adiunctis secundum cuiusque dioecesis morem,
§ a. In acceptations, constitutione et administra-
tione fundationis patronus ecclesiae nullum ius habet.
This canon (§1) commands that no more obligations
be accepted than can be complied with, and that none be
accepted for less than the customary tax. The zvritten
consent of the local Ordinary is required for the accept-
ance of foundations by ecclesiastical persons. This con-
sent should never be given unless the Ordinary is assured
that the institution is capable of fulfilling the new as well
as any old obligations it has assumed or is to assume. The
Ordinary shall also see to it that the consideration is in
proportion to the obligations, according to local custom.
§ 2 provides that the patron has nothing to say about the
acceptance, constitution, or administration of such pious
foundations.
It may not be amiss to state that the local Ordinary is
a
here intended for foundations under his jurisdiction.
Can. 1547
Pecunia et bona mobilia, dotationis nomine assig-
nata, statim in loco tuto, ab eodem Ordinario desig-
nando, deponantur ad eum finem ut eadem pecunia vel
.'le
£ " ^ ,,1 » Original from
UNIVERSITY OF WISCONSIN
CANON 1548 613
bonorum mobilium pretiutn custodiantur ct quam-
primum caute et utiliter secundum prudens eiusdem
Ordinarii arbitrium, auditis ct iis quorum interest et
dioecesano adroinistrationis Consilio. collocentur in
commodum eiusdem fundationis cum expressa et indi-
vidua mentione oneris.
This canon provides for the safekeeping and safe in-
vestment of pious foundations. All money and movable
property assigned as an endowment, must be deposited in
a safe place, to be designated by the local Ordinary.
This, with us, generally is a bank. Titles and other val-
uable papers may be put in a safety vault. If stock or
produce were offered, the easiest way would be to sell
them.
The Ordinary shall then consult with those interested,
i. e., the founder or his heirs, those who have accepted the
foundation, and the diocesan board of administrators, as
to the safest and most profitable way of investing the
property for the benefit of the foundation. Each invest-
ment of this kind must be accompanied by express and
specific mention of the obligation resting on the invest-
ment.
FORMALITIES
Can. 1548
§ 1. Fundationes, etiam viva voce factae, scripto
consignentur.
§ 2. Alterum tabularum exemplar in Curiae archivo,
alterum in archivo personae moralis, ad quam fundatio
spectat, tuto asservetur.
Pious foundations, even when made orally, must
be set dawn in writing; one of the records must be kept in
Go >gle
I , Original fro ni
UNIVERSITY OF WISCONSIN
6i4 ADMINISTRATIVE LAW
the diocesan archives, the other in the archives of the
institution which is obliged to fulfill the obligation.
Can. 1549
§ 1. Servatis praescriptis can. X514-X517 et can. 1525,
in qualibet ccclesia onerum ex piis fundationibus in-
cumbentium tabella conficiatur, quae apud rectorern in
loco tuto conservetur.
§ 2. Pariter praeter librum dc quo in can. 843, § 1,
alter liber retineatur et apud rectorem servetur, in quo
singula onera perpetua et temporaria eorumque im-
plementum et eleemosynac adnotentur, ut do iis omni-
bus exacta ratio Ordinario loci reddatur.
In every church there must be kept a list of the obliga-
tions arising from pious foundations ; this list must be
preserved in a safe place in the rectory.
Besides the book for manual stipends,1 mentioned in
can. 843, § I, there must be another, kept by the rector,
in which each and every obligation, whether perpetual or
temporary, is duly entered, as also the record of fulfill-
ment (when a mass was said) and the amount of the alms,
— so that an accurate account may be rendered to the
local Ordinary.
■"
exempt religious
Caw. 1550
Si agatur de piis fundationibus in ecclesiis, etiam
paroccial ibus, religiosorum exemptorum, iura et ofnicia
1 We cannot accept the theory ad- i» a substantial, not merely an acci-
vanced in a magazine that a priest dental, change, the ceremony of
who receives, Bay, Jioo for singing being a mere accident; and
" masses," can satisfy his obligation the priest would therefore defraud
by saying ao " high or sung masses," the donor of eighty matse*. Who
intead of 100 low masses. For this can admit such a pious fraud?
Go >gle
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 1551 615
Ordinarii loci, de quibus in can. 1545-15491 exclusive
competent Superior! maiori.
As to pious foundations made and accepted by churches
belonging to exempt religious, even if they be parish
churches, all the rights and duties of the local Ordinary
mentioned in canons 1545-1549, devolve on the major
superior exclusively, according to the constitutions of the
respective institute.
It may be added that the Constitution " Nuper" of In-
nocent XII,* from which these laws are chiefly taken, re-
vokes and annuls all contrary privileges granted to any
order.
reduction of obligations
Can. 1551
■
§ 1. Reductio onerum quae pias fundationes gra-
vant, uni Sedi Apostolicae reservatur, nisi in tabulis
fundationis aliud expresse caveatur, et talvo prae-
scripto can. 1517, § a.
§ a. Indultum reducendi Missas fundatas non pro-
tenditur nee ad alias Missas ex contractu debitas nee
ad alia onera piae fundationis.
§ 3. Indultum vero generate reducendi onera pia-
rum fundationum ita intelligendum est, nisi aliud con-
stet, ut indultarius potius alia onera quam Missas re-
ducat.
The reduction of obligations arising from pious foun-
dations is reserved to the Apostolic See, unless the char-
ter contains an express provision to the contrary and with
due regard to can. 1517, § 2, which admits the reduction
of certain foundations under certain conditions, but ex-
cepts masses.
2 9 30.
'■-.
JbyC >Ic
I , riginalfrom
UNIVERSITY OF WISCONSIN
6i6 ADMINISTRATIVE LAW
a
The S. C. Concilii sometimes grants an indult reducing:
foundation-masses, but this indult does not extend to
masses to be said by some other species of contract differ-
ent from that by which a foundation is accepted, nor to
other works imposed by a pious foundation. Hence this
particular kind of indult must be strictly interpreted. If
a general indult is granted for reducing the obligation aris-
ing from a pious foundation, this must be understood and
interpreted to mean that the grantee should reduce other
works rather than the masses, unless the text of the indult
reads differently. Thus if, besides Masses, the recitation
of the divine office or certain prayers are prescribed in the
foundation, the latter should be reduced rather than the
masses.8 Sometimes the wording of a general indult, or a
particular indult, expressly permits the reduction of
masses. Such indults need close inspection. For in-
stance, it may be that the indult mentions legaia taxative
or demonstrative conccpta. A legacy which is drawn up
taxative is one which first fixes the sum of the endow-
ment, say $1,000, and then the obligations to be fulfilled,,
say a requiem high mass every year on such and such a
day. If the obligation is mentioned first, and the endow-
ment afterwards, we have a legacy worded demonstra-
tive. This kind of legacy is also called approximate and
has this peculiarity that the heirs of the founder could, by
ecclesiastical law, be compelled to supply the deficient
funds so as to continue the fulfillment of the obligation,
although the value of the endowment may have de-
creased.4 However, this is often impossible. Hence, if
the indult draws no distinction between the different kinds
of bequests, the heirs are not to be bothered.
s S. C. C, May 6, 1803 (Kichter, rule mu«t be followed; S. C. C,
Trid., p. 139, n. 80) ; if the will of Sept. it, 1717 <iW., n. 81).
the founder does not appear, this 4 S. C. C, Sept. 9, 1702; Bened.
XIV, De Sy*. Uiote., XIII, 35, jj.
>Ie
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1 55 1
617
The practice of the Roman Court, mentioned in re-
scripts, is to change missae cantatae into low Masses, pro-
vided the funds suffice for the same number.0 If a reduc-
tion has already been granted, and another is asked for,
there must be new reasons to justify the request.6
Reasons for granting a reduction of mass obligations
are insufficiency of funds brought about by a consid-
erable decrease in the endowment ; and the poverty of the
priests who would be obliged to say them.7 In some cases
the needy condition of the patron and the necessity of re-
pairing the church were considered sufficient reasons at
least for a temporary reduction.8
sS. C. C, Feb. 3; Aug. 4. 1725
(Richter, I. c, p. 140, n. 83 f.).
fl S. C. C, Sept. 7. »79J 0'W&, n.
8*>.
7S. C. C, Aug. 17, i793» *nd
pluriei (/. c, n. 8a).
8 S. C. C, Dec. a, 1775J Nov, 39,
*?7? (ibid.).
-
a
END OF VOL. VI
gle
Original from
UNIVERSITY OF WISCONSIN
>Ie
Original from
UNIVERSITY OF WI5C0NSI
gl
Original from
UNIVERSITY OF WISCONSIN
1W?1W%
B 890971 98 196 A
■
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
Original from
UMrvTRSlfYOFVi'lSCONSIN
■
pi
■
pi
of tfje
{Hntoeraitp of Eftsiconain
.>Ie
( *r\nnl Original from
^..OOglL UNIVERSITY OF WISCONSIN
d~wuih-' Original from
.OO^K UNIVERSITY OF WISCONSI
A COMMENTARY ON
THE NEW
CODE OF CANON LAW
By THE REV. P. CHAS. AUGUSTINE, O.S.B., D.D.
Professor of Canon La<u>
Volume VII
Ecclesiastical Procedure (Book IV)
(Can. 1552-2194)
B. HERDER BOOK CO.
17 South Broadway, St. Louis, Mo.
AMD
68, Great Russell St., London, W. C.
1921
-
-
►ogle
t * -» -. iL» Original from
UNIVERSITY OF WISCONSIN
N
■
CC/J/ PERM1SSU SUPERIORUM
NIHIL OBSTAT
Sti Ludovici, die 8 Mart. IQ2I
F. G. Holwcck,
Censor Librorum
IMPRIMATUR
Sti. Ludovici, die o Mart, iqzi
^Joannes /. Glennon,
Archiepiscopus
Sti Ludovici
Copyright. 1921,
by
Joseph Gummersbach
All rights reserved
Printed in U. S. A.
VML-BALUW COM TAN r
■INQKANION *MD HEW TOIK
•■:
►ogle
Original from
UNIVERSITY OF WISCONSIN
>
I
C& 587683
7
CONTENTS
PAGE
BOOK IV — ECCLESIASTICAL PROCEDURE . . . i
Introduction I
so
r^PART I. TRIALS 3
■
2 Definition, Division, and Object 3
Section I. Trials in General 11
Title T. The Forum Competens .11
1
Exemption of the Pope 11
Reserved Competency 12
Ordinary and Extraordinary Forum 14
Title II. Different Stages and Species of Tribunals 24
Roman Tribunals 24
Ordinary Tribunals 25
Chapter I. The Ordinary Tribunals of the First
•J Instance .28
Art. I. The Judge 28
The Local Ordinary 28
The Official 29
Synodal Judges and Counselors 31
_3 Collegiate Board of Judges 33
Art. II. Auditors and Referees 38
Art. III. Notary, Prosecuting Attorney, Defensor
Vinculi 41
Art. IV. Beadles and Couriers 44
Chapter II. The Ordinary Tribunal of the Second
Instance 46
Chapter III. The Ordinary Tribunals of the Apos-
tolic See 49
Art I. The Sacra Romana Rota ...... 50
Art II. The Signatura Apostolica 53
Chapter IV. Delegated Tribunals 57
Title III. Rules to be Observed by Ecclesiastical
Tribunals " 58
jle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CONTENTS
VAGI
Chapter I. Judges and Other Officials . , . . 59
Competency and Suspicion 59
Duties of the Judge , . . 66
Penalties for Judges and Officials 72
Security or Bail 74
Chapter II. Order of Procedure 75
Chapter III. Delays and "Fatalia" ..... 81
Chapter IV. Place and Time of Judgment ... 83
Chapter V. Persons Admitted to Trials; Method of
Drawing up and Keeping Judicial Acts . . 87
The Judicial Acts 88
Title IV. Thr Parties to the Case 95
Chapter I. Plaintiff and Defendant 95
Who May be Plaintiff or Defendant 95
Minors • 97
Religious as Plaintiffs lot
Ordinaries and Corporations 103
Excommunicated Persons 105
Chapter II. Attorneys and Counsels (Advocates) . 107
Choice of Attorneys and Counsels 107
Qualities and Conditions of Attorneys and
Counsels no
Mandate of Attorney and Counsel . . . . .113
Removal of Attorney and Counsel 115
Title V. Actions and Exceptions 118
In General 118
Chapter I. Sequestration and Inhibition . 124
Chapter II. Novi Operis Nuntiatio and Damnum
Infectum 127
Chapter III. Actions of "Nlxlitas Actorum" . . 129
Chapter IV. Rescissory Actions and Restitution in
Integrum 133
Rescissory Actions 133
Restitution in Integrum 135
Chapter V. Counter-Pleas, (Actiones Reconven-
tion ales) 139
Chapter VI. Possessory Actions 141
Chapter VII. Extinguishment of Actions . . .147
Title VI. Opening of the Case .157
Chapter I. The Bill of Complaint 158
|M
oogle
f* ^ v ,|r> Original from
UNIVERSITY OF WISCONSIN
CONTENTS
PAGE
Chapter II. Summons and Intimation . . , .163
Contents of the Summons 165
Intimation or Conveyance of Summons .... 166
Necessity and Effect of Summons 170
Title VII. Issue in Pleadinc (Litis Contestatio) . 173
Definition and Requisites 173
Intricate and Doubtful Cases 174
Effects of the Litis Contestatio 176
Title VIII. Litis Instantia or Proceedings .... 180
Definition and Interruption 180
Abatement of the Instantia 182
Renunciation 184
Title IX. Questioning the Parties 186
Questions to be Proposed 186
The Oath 188
Title X. Pboofs 191
Preliminary Rules 191
Chapter I. Confession 196
Chapter II. Witnesses and Testimony . . . . aoi
Admission and Obligation of Witnesses .... 201
Art I. Who May be Witnesses 205
Art. II. By Whom, How, and How Many Witnesses
are to be Introduced, and Who are to be Rejected 212
How Witnesses are Produced 213
The Number of Witnesses 215
Which Witnesses are to be Excluded .... 216
Art III. The Oath Taken by Witnesses .... 218
Art. IV. The Examination of Witnesses .... 221
The Place of Examination 221
In Whose Presence the Witnesses are to be Ex-
amined 223
Nature of the Interrogatories and Answer* . . 225
Answers to be Put in Writing and Read .... 228
Repeated Examinations 230
Art. V. 'Publication of Testimonies and their Rejec-
tion 230
When the Testimony May be Published .... 231
Exception to Depositions 232
Repeated Calling of Witnesses 233
i I Originalfrom
oogle
UNIVERSITY OF WI5CON5I
CONTENTS
PAGI
Art VI. Compensation of Witnesses . . • . .234
Weight of Testimonies . 235
Chapter III. Experts 241
When, by Whom, and for What Purpose Experts
arc Chosen 241
Who May be Chosen 242
Duties of Experts towards Judge and Parties . . 243
Critical Investigation of Papers 245
Reports of the Experts and Non-Experts . . . 246
Expenses of Experts 24g
Chapter IV. Accessus and Recognitto 250
Local Inspection 250
Chapter V. Documentary Proof 253
Art I. Nature of Documents 253
Authority of Documents 259
Art II. Exhibition of Documents and Claim
Thereto " 262
Original and Authenticated Documents • - . 262
Actio ad Exhibcndum 264
Chapter VI. De Praesumptionibus, or Circumstan-
tial Evidence 268
Chapter VII. The Oath of the Parties .... 274
The Supplementary Oath 274
Iuramentum Aestimatorium 278
Iuramentum Decisorium 270
Title XI. Incidental Questions . . 282
Definition, Proposal, and Acceptance .... 282
Form of Settling Incidental Questions .... 284
Chapter I. Contumacy or Contempt of Court . . 288
Contumacy of the Defendant 288
Desisting; from Contumacy 291
Contumacy of the Plaintiff 292
Effect of Contumacy 293
Chapter II. Intervention ok a Third Person . . 295
Chapter III. Attempts Pending the Trial . . . 297
Title XII. Publication op the Process, Closing op the
Evidence, Pleading of the Case 301
The Publication of the Process 301
Closing of the Evidence 302
Defense or Discussion of the Case 303
i uni1L, Original from
■OOgie UNIVERSITY OF WISC0Nc
:■ 1
CONTENTS
PACE
Title XIII. The Sentence 308
Definition and Intrinsic Conditions of the Sentence 308
How a Board of Judges or One Judge Pronounces
Sentence 3x1
Contents of the Sentence ........ 313
Extrinsic Formalities 3x4
Publication of the Sentence 316
Tms XIV. Legal Redress Against the Sentence . 317
Chapter I. Appeals 318
When an Appeal is Forbidden 3x8
The Judge "a Quo" 321
The Judge "ad Quem" 322
Lapse of the Term 324
Effect of Appeals 324
Second Instance of Court of Appeal ..'... 326
Chapter II. Complaint of Nullity of Sentence . 328
Chapter III. Interference of a Third Person . . 332
Title XV. Res Iudicata and Restitutio in Integrum 334
Res Iudicata 334
Restitutio in Integrum 336
Title XVI. Trial Expenses and Gratuitous Defence 339
Chapter I. Regular Expenses . 340
Chapter II. Gratuitous Defence 344
Title XVII. Execution of the Sentence .... 346
The Time of Execution 346
The Executor 347
Mode of Execution 349
Section II. Special Rules for Certain Trials . . .351
Title XVIII. Ways of Avoiding Trials 351
Chapter I. Compromise 352
Chapter II. Compromise by Arbitration .... 354
Title XIX. Criminal Trials 355
Chapter I, Criminal Action and Denunciation . 359
Chapter II. Inquest 366
Mode of Conducting the Inquest 371
What is to be Done after the Inquest is Completed 372
Chapter III. Correction of the Delinquent . . . 374
Chapter IV. Criminal Procedure and Hearinc of
D
the Delinquent 380
G Original from
UOglt UNIVERSITY 0FWI5C0NSIN
CONTENTS
PAGE
PART II. THE PROCESSES OF BEATIFICATION
AND CANONIZATION 385
Introduction 385
Chapter I. The Duties op the Local Ordinary . 390
Art. I. Inquiry into the Writings of the Servant of
God 392
Art. II. The Information Process 393
Art. HI. Inquiry into the Non-Cultus 394
Art. IV. Transmission of the Acts to Rome ... 395
Chapter II. Introduction of the Case at Rome . . 396
Chapter III. Apostolic Trials 397
Art I. Institution of the Trial 397
Art II. Judgment of the Validity of the Trial . . 398
Art. III. Judgment on the Heroic Virtues . . . 398
Art IV. Judgment on the Miracles 399
Title XXV. Extraordinary Trial per Viam Non-
Cultus or Casus Excepti 400
Title XXVI. The Process of Canonization ... 402
ji
PART III. MODE OF PROCEDURE IN CERTAIN
CASES AND THE APPLICATION OF
PENALTES 403
General Rules 403
Title XXVII. Proceedings for the Removal of Irre-
movable Pastors 409
Reasons for Removal 411
Invitation to Resign 419
Resignation Accepted 423
Rebuttal of the Pastor 4*5
Proceeding of the Ordinary 435
After Removal 432
Excursus on Disabled Priests' Funds .... 434
Title XXVIII. Procedure in Removing Removable
Pastors 44'
Title XXIX. Procedure in the Transfer of Pastors 444
Title XXX. Procedure Against Clergymen Trans-
gressing the Law of Residence 449
Title XXXI. De Modo Procedendi contra Clericos
CONCUBINARIOS 457
P
'■-.
i -ww-iL* Original from
gle
UNIVERSITY OF WI5CON5I
CONTENTS
PACE
Title XXXII. Procedure Acainst Pastors Neglecting
Their Pastoral Duties 464
Title XXXIII. Procedure in Inflicting the Suspen-
sion ex Informata Conscientia 469
The Power of Ordinaries 470
Procedure in Inflicting this Penalty 475
Occult Crimes 479
Manifestation of Reasons and Recourse ... 481
Appendix I. To Canon 1990 484
Appendix II. "Decretum" and-" Decernere" . . • 4&S
>Ie
% ,1,., Original from
UNIVERSITY OF WISCONSIN
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
THE NEW CODE OF
CANON LAW
BOOK IV
ECCLESIASTICAL PROCEDURE
INTRODUCTION
There is no part of Canon Law which is so conspicu-
ously based on, nay governed by, Roman Law as the
book which we now undertake to describe and, as far
as necessary, to explain. .The reason for this phenome-
non is not far to seek. For not only did the Roman Law
rest on the principles of natural justice and equity, but
through the influence of the Christian emperors it be-
came familiar to the Church at large. Not only the soil
on which it had grown, but its very terminology, had be-
come the common possession of the Christianized nations,
not even excepting the Teutonic race, though the Ger-
manic law had not been influenced as largely as others.
An exception, however, was the English law. The little
island of Britannica had its peculiar laws, to which the
nobility as well as the laity clung conservatively, whilst
the bishops and the clergy, many of them foreigners, ap-
plied themselves to the study of the civil, i. e., Roman
and canon law.1 But the clerical element was finally
eliminated or forced to retreat to its schools and monas-
( *r\nnl*> Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
2 ECCLESIASTICAL PROCEDURE
teries. Thus it happened that the English law has least
of all received the structure and outlines of Roman or
ecclesiastical law. In its stead it has introduced a termi-
nology which needs a special study of Anglo-Saxon and
old French. This we state in order to make it plain that
some terms of Canon Law are not easily rendered into
English, but require circumlocution. Therefore time-
honored and concise terms shall be retained in their
original Latin. The essentials of the trial, being com-
mon to all civilized nations, are the same in English law
as in others.
The Code divides Book Four, which embodies the sec-
ond book of the decretals, into three parts:
I. Trials, or Ecclesiastical Procedure.
II. Beatification and Canonization.
III. Procedure in Particular Cases.
1 Blackftonc-Cooler. Commentary I, 18 f.
I Originalfrom
l'°°glc UNIVERSITY OF WISCONSIN
PART I
I TRIALS
-
DEFINITION, DIVISION AND OBJECT
I Can. 1552
§ x. Nomine iudicii ecclesiastic! intelligitur contro-
versiae in re de qua Ecclesia ius habet cognoscendi,
coram txibunali ecclesiastico, legitima disceptatio et
defimtio.
§ 2. Obiectum iudicii sunt:
x.° Person arum physicarum vel moralium iura per-
sequenda aut vindicanda, vel earundem personarum
facta iuridica declaranda; et tunc iudicium est con-
tentiosum;
a.° Delicta in ordine ad poenam infligendam vel de-
elarandam ; et tunc iudicium est criminale.
Can. 1553
§ 1. Ecclesia iure proprio et exclusivo cognoscit :
i.° De causis quae respiciunt res spirituales et
spiritual! bus adnexas ;
a.° De violatione legum ecclesia stica rum deque
omnibus in quibus inest ratio peccati, quod attinet ad
culpae definitionem et poenarum ecclesiasticarum irro-
gationcm ;
3.0 De omnibus causis sive contentiosis sive crim-
inalibus quae respiciunt personas privilegio fori gau-
dentes ad normam can. 120, 6x4, 680.
3
p
G| ^ Original fro m
°°0K UNIVERSITY OF WISCONSIN
N
■
4 ECCLESIASTICAL PROCEDURE
§2. In causis in quibus turn Ecclesia turn civilis
potestas acquc competentes sunt, quaeque dicuntur
rnixti fori, est locus praeventioni.
Can. 1554.
Actor, qui causas mixti fori ad iudicem ecclesiasti-
cum deductas ad forum saeculare iudicandas defert,
congruis poenis puniri potest ad normam can. 2222
et privatur iure contra eandem personam de eadem re
et de connexis causam agendi in foro ecclesiastico.
Can. 1555
§ 1. Tribunal Congregationia S. Officii suo more in-
stitutoque procedit sibique propriam consuetudinem
retinet ; et etiam inferiora tribunalia, in causis quae ad
S. Officii tribunal spectant, normas ab eodem traditas
scquantur oportet
§ 2. Cetera tribunalia servare debent praescripta
canonum qui sequuntur,
§ 3. In iudicio pro dimissione religiosorum serventur
praescripta can. 654-667.
The Roman Law constantly employs, not processus,
but indicia (judgments), which were divided into public
and private. Our Code, too, speaks here of iudiciutn
ecclesiasticum, which it defines as the lawful discussion
and settlement before the ecclesiastical court of a dis-
puted matter of which the Church is entitled to take
cognizance.
Can. 7J5J determines which matters belong by inherent
and exclusive right to the ecclesiastical court. They
<
are:
i.° All merely spiritual matters and such strictly con-
1 Original from
■OOgie UNIVERSITY OF WISCONSIN
CANONS ISS2-IS55 5
nected with spiritual things. This is a very moderate
vindication of a right which cannot be denied to any
autonomous society. That the spiritual element is supe-
rior to the material or temporal, the divine to the human,
the spirit to the flesh, should be evident. Yet it was neces-
sary to repeat that truth against the encroachments of em-
perors and rulers who would pose as popes.1 A conflict
was inevitable. Undeniably there were exaggerations on
both sides, especially at the time of Boniface VIII, when
some writers vindicated to the Pope everything except
creation.* Such unwarranted assertions could not fail
to provoke resistance, from which it was but a short step
to encroachments. But the rights of the Church needed
no concessions, which indeed had voluntarily been made
by loyal rulers who perceived the mighty influence of
the Church over a semi-barbarous populace. The orderly
procedure of the ecclesiastical courts gradually permeated
the civil courts, to the gain of a more equitable and just
handling of trials., This of course can only be under-
stood in the light of unbiased history. The ecclesiastical
legislator vindicates to his court :
(a) All spiritual matters. Such are everything belong-
ing to faith and morals, the Sacraments and sacramentals,
divine worship and the sacred liturgy, dispensations from
vows and oaths, ecclesiastical offices, rights and obliga-
tions of the clergy, beneficiaries and religious, the extent
of, and exemption from, ecclesiastical jurisdiction, etc.4
(b) Matters which might per se be called temporal,
but are intimately connected with the spiritual, such as
1 Cc. 3, 6, Dhrt. 10. 1 601. Btill userts what it said in
2 See SchoU, PubltMutik wur Zeit the text.
Phihpps des Sehdnen und Bonifa* sCfr. Hergenrother, Kath. Kireht
VIII. (Stutx, Kirchtnrtchtl. Abhan- *. Christl. Stoat, 187a, p. *6 f.
$g.t 6-8, 1903); Alex. Careriut, *Cft. c. 34, Vener*bi!em, X, I,
D# Pctcstate Sutnmi Pontificu, 6; cc. 2, 3. X, II, 1; 15, X, V, 31.
gte
^ , J , Original from
UNIVERSITY OF WISCONSIN
1 - o
6 ECCLESIASTICAL PROCEDURE
advowson, church revenues, ecclesiastical burial, legiti-
macy of children, real immunity, etc5
2° The ecclesiastical court may also claim cases of
violation of ecclesiastical laws and all matters in which
the question of sin is involved, in so far as the deter-
mination of guilt and the infliction of ecclesiastical pun-
ishments comes into play. It is evident that here espe-
cially the leges plus quam perfectae and perfectae are
intended, i.e.f such as have an invalidating clause or a
penal sanction attached. As to penalties inflicted upon
transgressors they are more especially the censures and
vindictive penalties which may be meted out not only to
the clergy but also to the faithful. This is sometimes
expressly mentioned in concordats, where also the pun-
ishment of public sinners and transgressors of the holy-
days of obligation are specially noted.*
The second clause, vis., to take cognizance of matters
which underlie the ratio peccati, is an allusion to a famous
decretal of Innocent III, " Novit" in which this great
Pontiff assures the King of France and John Lackland
of England that he has " no intention to judge feuds,
but to decide concerning sin, which undoubtedly belongs
to him." 7 Hence our text only mentions guilt and eccle-
siastical punishment. This power is called potestas rfi-
rectiva, and consists in wielding the spiritual sword or
the functions of an authoritative teacher vested with
ecclesiastical or spiritual weapons.8 This power neces-
sarily follows from the legislative power, inasmuch as the
latter would be ineffective without the executive power
Q
• Cfr. c. 3, X, II i; c. 3 X> IH, is»7. «nd »U the diriment impedi-
30; c. 3, X, II, 10; c. 9. X, IV, menu.
17; X, III, =8, de sepultures; c. 4, T Num. Convention*/, 1870. PP-
6". III. 23: Wernz, Ins Decrtt, 9*. 105. 151, 185. 3«-
Vol. V, 1914, 3. 333. n. 268. «C. 13, X, II, 1; see Hergen-
8 Cfr., for in«., can. 1428, 151a, rfither, /. e„ p. 403 ff.
>Ic
£ " ^ ^ ,l,» Original from
UNIVERSITY OF WISCONSIN
CANONS I552-IS55
7
-
-■
proper. Even a religious society cannot do without the
rod.
3.0 A third category of matters strictly belonging to
the ecclesiastical court comprises a certain class of per-
sons (rations personae). Hence the civil as well as the
criminal cases of the clergy and all those who share the
clerical privileges of the forum are subject to the eccle-
siastical court. These, i.e., the clergy proper as men-
tioned under can. 120, the religious as per can. 614, and
the members of pious communities, though not religious
in the canonical sense of the word, as per can. 680. All
these, says the text, are subject to the ecclesiastical judge
in civil as well as criminal matters.
Can. 1 552, § 2 distinguishes two classes of procedure,
ratione objecti, i.e.t by reason of the purpose. For if
an individual or a corporation goes to law, they are sup-
posed to have sustained an injury or a wrong, for which
they think it worth while to demand satisfaction. This
Concerning tbc threefold power
distinguished by authors we may
here add the following: The postes-
(as direct a would represent the Pope
aa endowed with unlimited power in
spiritual as well as temporal mat-
ters, although the temporal power
he wields through the worldly
rulers, or rathci these wield it by
his command. The Posttstas indi-
rect? is differently explained, but in
genera] features there ia agreement:
the Pope rules directly over spirit-
ual matters, whilst over temporal
things be has power only as far as
the object of the Church requires it.
Hence the Pope may not depose
secular princes, but he may change
the occupants or transfer kingdoms,
he may not issue or nullify secular
laws, but be may absolve the faith-
ful from the obligation of observ-
ing them if they are contrary1 to
salvation; he may not judge in
poral matters, as a rule, but only
assume the office of judge in case
of two rivals or in case there is no
one to judge. (See Bcllarraine, De
Rom. Pont., 1. V, c. 6). The
potest** directive, too, is not al-
ways explained in the same man-
ner. But what is said in the
text comprises all explanations.
The Church is the supreme spirit-
ual and infallible director of every
conscience, giving admonitions, ex-
planation! and counsels to high and
low. But this ia not all, — the
Church, being an autonomous so-
ciety, also enjoys the right of exer-
cising the judiciary and executive
power over her members. (See
Hergenrotber, Kath. Kirche und
Christl. Staot, 187a, pp. 411 ff. J.
Milita, De Ecel Potest. Indirect*.
Rome 1 89 1.
►ogle
Original fro rn
UNIVERSITY OF WI5C0NSI
8 ECCLESIASTICAL PROCEDURE
wrong may affect the person or corporation only, i.e.,
a private interest for which they seek redress. Take,
for instance, can. 1534, where personal and real actions
are permitted in case of unlawful alienation. It may
be that the property unlawfully alienated is claimed,
or it may be that the alienators can prove that they
have observed the prescribed formalities and wish to have
their acts justified and declared legal. But the interest
around which the prosecution circles is private, touching
the persons only. Such a proceeding is called contentious
or civil, in order to distinguish it from the following.
For it may be that the person bringing a suit has at heart
not private interests, but the public order or the welfare
of the community. This happens when a crime, a
delictum publicum, is committed, which may also affect a
person, inasfar as he or she has suffered an injury by
the perpetration of the crime. Yet the accusation is
made against the perpetrator not for personal revenge,
but for the sake of the vindication or restoration of the
public order that was disturbed by the crime. This is
called criminal proceeding. It now-a-days concerns al-
most exclusively the clergy, i.e., persons who enjoy the
privilegium fori, as explained under can. 120.
§ 2 of can. 1553 and can. 1554 mention matters subject
to a mixed court, i.e., matters in which the ecclesiastical
as well as the secular judge are competent to render a
verdict. Such matters, as far as the civil procedure is
concerned, are: (a) contracts made under oath, as far as
the carrying out of the contract, not the oath, is involved ;
(b) cases of widows, orphans, and other destitute persons
allowed to choose the forum ; (c) cases of legacies made
by laymen partly in favor of pious institutions or foun-
dations; (d) cases of dozvry, tithes, advowson, provided
p
.
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 1555 9
the fact of temporal possession or the right of possession
is involved.*
As to criminal procedure, the cases subject to a mixed
court are mentioned under can. 1933, § 3.
In such cases, then, subject to a mixed court, the eccle-
siastical judge, provided he is otherwise competent, may
preoccupy the jurisdiction of the secular judge, and vice
versa. If a plaintiff should, therefore, venture to bring
suit before a secular court in a matter which has already
been brought before an ecclesiastical court, he may be
punished by the lawful ecclesiastical superior, if scandal
was given or the importance of the case requires a pun-
ishment ; and that punishment may be meted out without
previous warning or threat.10 Besides, such a plaintiff
loses the right of bringing suit against the same person
in the same matter or one connected with the matter at
issue. Formerly excommunication was decreed for such
who declined to accept the forum ecclesiasticum in mixed
matters, and other punishments were inflicted on eccle-
siastical persons of higher and lower dignity who at-
tempted a change of forum.11
Can. 1555 sets forth, in general terms, the method of
procedure: (a) for the Holy Office, which must proceed
according to the norms prescribed and in the manner cus-
tomary with that sacred tribunal; the same rules must be
observed by the inferior tribunals of the Roman Court,
if they are called upon to judge in matters pertaining to
the Holy Office. This is especially the case in matters
• A damage or libel suit, cflpc- clergy, affect the State as such,
dally among or against clerics, be- 10 Cfr. Retffenstuel, II, til. 2, n.
longs to the criminal court accord- 15: ff. Can. 1222.
ing to can. 1935 and can. 1938. 11 Martin V, "Ad reprimendas
Yet what is stated in the text is msoltnliot," Feb. 1, 1428 (Bull.
perfectly true, for even injuries and Rom., ed. Luxemburg, I, 306 f.).
libel suits, when directed against the
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
-
■
pi
10 ECCLESIASTICAL PROCEDURE
of faith and morals, the validity of holy orders, and the
matrimonial cases arising from the Pauline privilege, dis-
parity of worship and mixed religion, if the case is tried
in a judiciary way."
(b) For all other tribunals the following canons form
the rule of procedure. This is particularly the case with
the S. Roman Rota and the Signatura Apostolica, which
are mentioned later (can. 1597— 1605). In trials for the
dismissal of religious, canons 654-668 must be observed.18
12 Cfr. Norma* Peculiar*, P. II, 13 See this Commentary, Vol. Ill,
c. VIIt Art 1, o. 6 {A. Ap., S.p p. 3*6 *.
I, 78 *■>.
5 'rwil^ Original from
lOOgK UNIVERSITY OF WISCONSIN
SECTION I
TRIALS IN GENERAL
TITLE I
THE FORUM COMPETENS
Every trial consists of two elementary parts, the per-
sons concerned and the process or trial itself.
The persons chiefly concerned are the judge, who in
the first title is comprised under the term competent court,
the plaintiff, and the defendant.
Besides these, there are persons who assist these main
actors in the trial. Then there is the process itself.
The Code premises a canon which is no doubt intended
to preclude a false idea concerning the Supreme Head
of the Church, as if he were subject to human judges.
exemption of the pope
Can. 1556
Prima Sedes a nemine iudicatur.
The first or primatial see is subject to no one's judg-
ment. This proposition must be taken in the fullest ex-
tent, not only with regard to the object of infallibility.
For in matters of faith and morals it was always cus-
tomary to receive the final sentence from the Apostolic
See, whose judgment no one dared to dispute, as the
11
GoogI
Original fro rn
UNIVERSITY OF WISCONSIN
12 ECCLESIASTICAL PROCEDURE
St
tradition of the Fathers demonstrates.1 Neither was it
ever allowed to reconsider questions or controversies once
settled by the Holy See.2 But even the person of the
Supreme Pontiff was ever considered as unamenable to
* *
human judgment, he being responsible and answerable to
God alone, even though accused of personal misdeeds and
crimes. A remarkable instance is that of Pope Syrnmachus
(498-514). He, indeed, submitted to the convocation of
a council (the Synodus Palmaris, 502), because he deemed
it his duty to see to it that no stain was inflicted upon his
character, but that synod itself is a splendid vindication
of our canon. The synod adopted the Apology of En-
nodius of Pavia, in which occurs the noteworthy sentence:
" God wished the causes of other men to be decided by
men ; but He has reserved to His own tribunal, without
question, the ruler of this see."8 No further argument
for the traditional view is required. A general council
could not judge the Pope, because, unless convoked or
ratified by him, it could not render a valid sentence.
Hence nothing is left but an appeal to God, who will
take care of His Church and its head.
reserved competency
Can. 1557
§ i, Ipsius Romani Pontificis dumtaxat ius est iudi-
candi:
i.° Eos qui supremum tenent populorum principa-
tum horumque filios ac filias eosve quibus ius est
proxime succedendi in principatum ;
1 Zozimus, " Quomvis Patrvm a See c. 14, C. ri, q. 3; c. 10,
traditio," March 21, 418 (Mi^ne, Dist. q6; cc. 10, 13, C. 9, q. 3;
P. I., *o, 676). Reuben Parens, Studies in Church
2 Boniface I, "Retro maioribus History, ed. 2, 1901, Vol. I, p.
tuis," March 11, 422 (ibid., col. 351 ff.
776).
>Ic
£ * ^ •. ,L> Original from
UNIVERSITY OF WISCONSIN
■
pi
Q
|M
■--.
CANONS I556-IS58 13
a.0 Patres Cardinales;
3.0 Legatos Sedis Apostolicae, et in criminalibus
Episcopos, etiam titulares.
§ 3. Tribunalibus vero Sedis Apostolicae reservatur
iudicare :
i.° Episcopos residentiales in contentiosis, salvo
praescripto can. 157a* § a;
a.° Dioeceses alias ve personas morales ccclcsiasticas
quae Supcriorcm infra Roman um Pontificem non ha-
bcnt, uti religiones cxcmptas, Congregationes monasti-
cas, etc.
§ 3. Alias causas quas Romanus Pontif ex ad suum
advocaverit iudicium, videt iudex quern ipsemet Ro-
manus Pontifcx designaverit
Can. 1558
HI
In causis de quibus in can. 1556, 1557, aliorum iudi-
cum incompetentia est absoluta.
It has been an ancient custom for the Roman Pontiff
to reserve certain cases (causae maiores) to his own
exclusive tribunal. These are:
(a) The cases of actual rulers of nations, their sons
and daughters, and proximate successors, provided, of
course, their cases arc brought before the Supreme Pon-
tiff, as often happened when rulers still called themselves
Christian ;
(b) The cases, civil as well as criminal, of cardinals4
and legates of the Apostolic See;
(c) The criminal cases of bishops, titular as well as
residential.
To the tribunals of the Apostolic See are reserved:
4 A famous instance la the Caraffa Extract from la Revue d'Hutoire
trial under Pius IV; see R. Ancel. BccUs., 1907.
O.S.B., "P»ul IV, et le ConcUe,"
C I Original from
lOOglt UNIVERSITY 0FWI5C0NSIN
14 ECCLESIASTICAL PROCEDURE
(a) The civil cases of residential bishops, with the ex-
ception mentioned in can. 1572, §2;
(b) All cases of dioceses and other exempt corpora-
tions immediately subject to the Roman Pontiff, such as
exempt religious organizations and monastic congrega-
tions. If the Roman Pontiff calls other cases before his
tribunal, that judge is competent whom he designates.
This happened in the case of the English Ladies founded
by Mary Ward.5
The cases mentioned (in can. 11 56 and n 57) are so
reserved that every other than the judge or tribunal men-
tioned is absolutely excluded, no preliminary hearing or
taking cognizance of the case is permitted, and any at-
tempted sentence would be ipso iure invalid. This is
called absolute incompetency, because competency means
nothing else but the jurisdiction proper to a judge, not
only concerning the matter at issue (ratione causae), but
also with regard to the person (ratione personae),* and
where both are wanting, as under can. 1556 and IS57» *ne
incompetency is complete in every respect.
ordinary and extraordinary forum
Can. 1559
§ 1. Nemo in prima instantia conveniri potest, nisi
coram iudice ecclesiastico qui competens sit ob unum
ex titulis qui in can. 1 560-1568 determinantur.
§ s. Incompetcntia iudicis cui nullus ex his titulis
sufFragatur, dicitur relativa.
§3. Actor sequitur forum rei; quod si reus multi-
plex forum habeat, optio fori actori conceditur.
1 See Bened. XIV, " Quamvis A Weraz, /. c, Vol. V, P. I, n.
%UJto/' April 30, 1749- 175, P- «?•
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
—
a
N
■
CANONS 155^-1568 is
Can. 1560
Forum necessarium habent:
i.° Actioncs de spolio, coram Ordinario loci rei
sitae;
a.0 Causae respicientes beneficium, quamvis non
residential*:, coram Ordinario loci beneficii;
3. Causae quae versantur circa administrationern,
coram Ordinario loci ubi adrninistratio gesta est;
4. Causae quae respiciunt hereditates aut legata pia,
coram Ordinario loci domicilii testatoris, nisi agatur
de mera exsecutione legati, quae videnda est secundum
ordinarias competentiae normas.
Can. 1 561
§ z. Rati one domicilii vel quasi-domicilii quilibet
conveniri potest coram Ordinario loci.
§ 2. Ordinarius autem domicilii vel quasi-domicilii
iurisdictionem in subditum, quamvis absentem, habct.
Can. 1562
§ 1. Qui peregrinus est in Urbe, licet per breve tern-
pus, potest in ipsa tanquam in proprio domicilio citari ;
sed ius habet revocandi domum, idest petendi ut ad
proprium Ordinarium remittitur.
§ 2. Qui in Urbe ab anno commoratur, ius habet de-
clinandi forum Ordinarii et instandi ut coram Urbis
tribunalibus citetur.
Can. 1563
Vagus proprium forum habet in loco ubi actu com-
moratur ; religiosus in loco domus suae.
G| Original fro m
°°8IL UNIVERSITY QFWI5C0NSIN
■
pi
16 ECCLESIASTICAL PROCEDURE
Can. 1564
Rationc rei sitae pars convcniri potest coram Ordi-
nario loci, ubi res litigiosa sita est, quo ties actio in rem
directa sit
Cak. 1565
§ 1. Rationc contractus pars convcniri potest coram
Ordinario loci in quo contractus initus est vel adim-
pleri debet.
§2. In actu autem contractus permittitur contra-
hentibus, obligations declarandae, urgendae vel im-
plendae gratia, locum eligere, in quo ctiam absentes
citari et conveniri possint.
Can. 1566
§ 1. Ratio ne delicti reus forum sortitur in loco
patrati delicti.
§ 2. Licet post delictum reus e loco discesserit, iudex
loci ius habet ilium citandi ad comparendum, et
sententiam in eum ferendi
Can. 1567
Ratione connexionis seu continentiae ab uno
eodemque iudice cognoscendae sunt causae inter se
connexae, nisi legis praescriptum obstet
Can. 1568
Ratione praeventionis, cum duo vel plures iudices
aeque competentes sunt, ei ius est causam cognoscendi
qui prius citatione reum legitime convenit.
Forum is a Latin word and formerly signified a
place for giving judgment. The forum or contitium of
Grw-uil^ Original from
■KyQiL UNIVERSITY OF WISCONSIN
CANONS I55SM568 17
the old Romans meant jurisdiction, or the power of pass-
ing judgment. Competent means proper jurisdiction over
the person and case in question.
The person who determines the forum competent is the
defendant, according to the well known adage: "Actor
sequitur reum" i.e., the plaintiff follows the defendant's
court. However, this is to be understood as a rule which
has its exceptions. For the Code itself makes exceptions
in can. 1560, 1567, and 1568. Whilst, therefore, the prin-
ciple " actor sequitur reum *' constitutes the ordinary or
voluntary forum, because it depends on the defendant's
will, the other three mentioned in the three canons may
be called extraordinary modes of following the forum, al-
though even this distinction 7 is not quite adequate, since
the law itself establishes these exceptions. The Code
has a proper name only for one forum, which it calls
necessarium, and hence the other six might be called
voluntary fora.
Canon 1559 states that no one can be sued in the first
instance (instantia prima) except before the ecclesiastical
judge who is competent in virtue of one of the seven
reasons stated in can. 1560-1568. If none of these seven
titles justifies the judge in hearing the case, his incompe-
tency is relative, because it may be that he would be com-
petent by reason of the person being subject to his juris-
diction. Then the general rule is reaffirmed : Actor sequi-
tur forum rei. But an exception is admitted in case the
defendant is sued on various counts, which permit a choice
of judges. This choice is left, not to the defendant, but
to the plaintiff. Thus, if domicile and contract are in
question, the plaintiff may choose either Ordinary.
1 Wernz, f. c, a. 859, according mune — singulars; universale —
to customary teaching, distinguishes: particulate; ordinarium — estraordi-
forum legale — conventionale ; com- nariunt.
G] Original fro m
OOglt UNIVERSITY 0FWI5C0NSIN
18 ECCLESIASTICAL PROCEDURE
a
Can. 1560 constitutes a forum necessariutn in the fol-
lowing cases:
l.° All actions concerning forcible deprivation or
disseissin, of which more under can. 1698, where the term
spolium recurs;
2.0 All cases touching benefices, even though non-
residential, which must be decided before the Ordinary
in whose diocese the benefice is located;
3.0 All cases of administration, which must be tried
before the Ordinary in whose diocese the administration
was conducted ;
4.0 All cases in which pious bequests or legacies are
involved, must be tried before the Ordinary in whose
diocese the testator had his domicile, unless the question
should turn about the mere execution of a legacy, when
1/1
it may be settled according to one of the following reasons
of competency.
By reason of domicile or quasi-domicile,* under can.
1 561, anyone may be sued before the local Ordinary, who
in this case also has jurisdiction over an absent subject.
This court is the chief, ordinary, and natural forum for
trying the defendant, even though he be absent from the
diocese. If the plaintiff be absent, the summons suffices
to render him in contempt in case he docs not appear*
This forum concurs with any other mentioned,10 except,
of course, the one spoken of in can. 1560.
A peculiar right is vindicated to the City of Rome as
the " mother and teacher of all churches." As under the
Decretals," so now by our Code (can. 1562) a peregrinus>
i.e., any clergyman or layman who is in Rome., even
though only for a short time, may be summoned there
flCfr. can. 91 ff., and our Com- 10 Santi-Leitner, II, tit. 2, n.
meat., Vol. II, p. 14 ft. 10; Smith, Elements of Ecclesw-
9 CtfT. cc. II, 17, 19, X. II, a; c. tical L*m, Vol. II, p. 63.
1, X, II, 14. 11 C. 20, X, II, 2.
oogle
Original from •
UNIVERSITY OF WISCONSIN
CANONS 1559-1568 19
as if he were in his own domicile ; and since a summons
constitutes the beginning of a trial (can. 1725), it follows
that the whole process may be finished there. However,
the right of having the case pleaded at home remains,
wherefore such a one may ask for leave to appear before
his own Ordinary.
The ius revocandi domum, as the commentators say,12
is not the same as that of declining the forum. The
latter supposes that the judge is not competent, whilst
in the case of revocatio domum the competency is ad-
mitted. Formerly the favor of revocatio was granted if
the pilgrim came to Rome for a just and necessary reason,
as stated in the Decretals. Our text has no such condi-
tional clause, wherefore the old law must be looked upon
as corrected in this case. W-e may, however, admit what
the same writers say concerning two other conditions for
making use of the revocatio. They deny the right if
delay would be dangerous and if the peregrinus has com-
mitted a crime in the City of Rome. Our text adds a
new regulation in § 2, can. 1562 : One who has lived in
Rome for one year, has the right (not the duty) to decline
the forum of his own Ordinary and to demand that his
case be tried before the tribunals of the City.
However, if we mistake not, the whole of canon 1562
must be understood in conformity with can. 1560, and
hence the privilegiutn urbis cannot be applied. This seems
to be deducible from the fact that the favor is subsumed
c
under " domicile " ; since this is not applicable in the cases
mentioned in can. 1560, can. 1562 may not be alleged
against can. 1560.
Those who have neither domicile nor quasi-domicile,
i.e., vagi, are tried in the place where they happen to
12 Cfr. Reiffenituel, II, 2, nn. 108 ff.
p
oogle
Original from
UNIVERSITY OF WISCONSIN
20 ECCLESIASTICAL PROCEDURE
reside, "there and then," even if they had made up their
mind to settle in another place.18
Religious are subject to the forum of the place in which
their house is located (can. 1563). Religious who have
made perpetual vows, lose their domicile ; " but not those
who have taken only temporary vows. However, in our
case the qua si-domicile must be considered sufficient to
establish the competent forum for all religious. If one
would be dismissed or dispensed, and leave the religious
house, he would regain his former domicile or quasi-
domicile, and therefore the ecclesiastical court of the
diocese in which he originally had a domicile or quasi-
domicile, and not the court of the diocese in which the
religious house is located, would be the forum competens
for him."
By reason of res sita (can. 1564) or location of the
litigious object, one may be sued in any place where a real
(not a personal) action is brought against him, on ac-
count of the object being permanently located in that place.
The disputed object may be movable or immovable, in
possession of the litigants or not, but whether it must be
permanently situated there, not merely in transitu, is a dis-
puted question.18 Thus, for instance, if two bishops
should get into a dispute over a bequest, that bishop's court
would be competent in whose diocese the property was
located.1' But the text permits only a real action, i.e., one
against the thing itself, not against the person. Hence the
judge who is competent by reason of the location of the
disputed object may not proceed against the defendant by
censures, or by declaring him contumacious ; nor can he,
13 Rciffcnstuel, II, 3, n. 45. 16 Rcificnstucl, II, a, n. 99 f. fa-
ll Can. 585. vors the opinion that in transitu
15 Ci r. can. 641; S. C. EE. et is sufficient, nor is our text against
RR., May 2, 1864 {A. S. S., I, that opinion.
365 t). 17 C. 3, X, II, a.
oogle
Original from
UNIVERSITY OF WISCONSIN
CANONS ISS9-IS68 21
properly speaking, summon the defendant if the latter
does not belong to his territory. But he may, in case of
contempt, put the plaintiff in possession of the disputed
object."
By reason of a contract (can. 1565) one may be tried
by the local Ordinary in whose diocese the contract was
made, or must be fulfilled. A contract, as generally un-
derstood, is any agreement which involves the fulfillment
of an obligation, including guardianship or tutorship.18
Since contracts are generally determined as to obliga-
tions and circumstances, the Code permits the contracting
parties to state in the contract itself the place where the
obligation is to be fulfilled or urged. This also deter-
mines the forum to which the absentee must be summoned
and before which he must be sued.10 If no stipulation
was made as to the place where the contract is to be car-
ried out, the place where it was made determines the forum.
And consequently in such a case the laws of the respective
diocese or province must be followed (can. 1529).
By reason of crime (can. 1566) one may be tried in
the place where he committed the justiciable act, no mat-
ter whether it was grievous or not. The law only says :
" delictum," i.e., an external crime committed against the
public order. The whole crime must have been perpe-
trated in the diocese whose Ordinary is thus rendered com-
petent, but it is not necessary that the effects should have
followed in the same diocese. If a cleric were shot in
diocese A, and died in diocese B, the Ordinary of diocese
A would be competent.21
All clerics of whatever condition or rank (laymen are
now tried before the secular judge), except those men-
18 Werni, t. c, n. 089, p. 04a, ao C. 17. X; II, a.
tote 138. 21 Wernr, /. r« n. 390, p. 244.
10 Santi-Lcitner, II, 2, a. 13.
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
22 ECCLESIASTICAL PROCEDURE
tioned in can. 1556, are here comprised. Therefore also
exempt religious (see can. 616).
But what if the perpetrator is at large, i.e., absent from
the territory where the crime was committed ? § 2 of our
canon, for which no previous authority of law could be
alleged, rules that even in this case the local judge is en-
titled to summon the criminal and to pronounce sentence
on him.
By reason of connection (can. 1567) or contents one
and the same judge may take cognizance of cases which
have some connection with one other, unless the law
expressly prohibits this. This may happen:
(a) When one suit depends upon the settlement of an-
other, as the principal may depend on an incidental ques-
tion. Thus, a matrimonial case which involved an in-
heritance, if the validity of the marriage were concerned,
could not be decided by a lay judge, and therefore the
lay judge would be unable to take cognizance of the whole
case, even though he were competent to judge of the right
to the inheritance. The law (can. 1553, § 1, n. 1) pro-
hibits him to be judge in spiritual matters and matters
connected therewith.22 But if the question would only
be whether the person was born in or out of lawful wed-
lock, the lay judge would be competent in the whole af-
fair."
(b) A connexio causarum also exists when a general
action is brought, i.e., one which implies several suits or
causes by reason of one's main office or quality, for in-
stance, a tutor, guardian, or general manager may have
several suits on hand on account of his official capacity,
and hence may be called to court by various Ordinaries
and may plead before one and the same judge cases other-
wise belonging to several courts.2*
22 Cc. 5, 7, 9, X, IV, 17; c. 3, 23 Santi-Leitner, II, a, n. ax,
X, I!, 10. stjbid., n. aa.
Gr*nnl*> Original from
°°3IC UNIVERSITY 0FWI5C0NSIN
CANON 1568
23
■
By reason of prevention (can. 1568) one of several
otherwise equally competent judges may be entitled to
take cognizance of a case, because he was the first to issue
a lawful summons to the defendant. Can. 1553, §2,
dealt with the case of a mixed forum, when the eccle-
siastical judge preoccupies the case by a legitimate sum-
mons. But it may also happen that a criminal who has
changed his domicile is summoned by the judge of the
former domicile or diocese ; the judge who first issues
the summons is the competent one.25 Finally, prevention
may take place when several judges are competent jointly
and severally (in solidum), for in this case reguia juris
$4 holds: "He has the better title who was prior in
time." " However the summons must have been served
legitimately, i.e., according to the rules laid down in our
Code ; " otherwise exception might be taken to the judge's
competency.
26 C. 19, X, II, 2,
20 C. 8, 6*, I, 14; EciScnaiud,
II. a, nn. 43* 166 ff.
*7 See can. 1711-17*5.
jle
Original from
UNIVERSITY OF WISCONSIN
■
TITLE II
DIFFERENT STAGES AND SPECIES OF
TRIBUNALS
soman tribunals
Can. 1569
§ x. Ob primatum Roman! Pontificis integrum est
cuilibct fidcli in toto orbe catholico causam suam sivc
contcntiosam sive criminalem in quovis iudicii gradu
et in quovis litis statu, cognoscendam ad Sanctam
Sedem deferre vel apud eandem introducere. ■
§ a. Recursus tamen ad Sedem Apostolicam inter-
positus non suspcndit, excluso casu appellation^,
exercitium iurisdictionis in iudice qui causam iam
cognoscere coepit; quique idcirco poterit indicium
prosequi usque ad dcfinitivam sententiam, nisi con-
stiterit Sedem Apostolicam causam ad se advocasse.
Can. 1 561 mentioned a prerogative of Rome. An-
other is set forth in the following canon, which embodies
a principle that has been acknowledged since immemorial
time, vis., the right of appeol to the Apostolic See from
any inferior tribunal and at any stage of a trial. The
Council of Sardica (343) clearly stated this right,1 and
there is no need to recur to the Pseudo-Decretals.2 The
right of appealing to Rome was practised in every cen-
lCfr. c 36, C. a, q. 6; Hefele, Reuben Parsons, Studies in Church
Koneilieti-Gcjchichit, I, 341, 541 ff.; History, 190*, I, p. ao$ ff.
2 See cc. 4-8, C. 2, q. 6.
24
*ogle
,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1570 25
tury and in various and distant provinces, and the Feb-
rorian synod or meeting of Ems was probably the first
to demand that Rome should reject and abolish appeals.8
The right of accepting and deciding appeals rests on the
primacy of the Roman Pontiff* and is coextensive with
his legislative and judiciary power. Hence our Code vin-
dicates this right to the Holy See, to which any civil or
criminal case may be appealed in any stage or instance
and from any phase a trial may have taken in any part
of the Catholic universe.6
§ 2 of this canon says that recourse to the Apostolic See
does not suspend the exercise of the jurisdiction of the
ordinary or delegated judge, who has commenced a trial
by issuing the lawful summons. Suspension of juris-
diction is attached only to an appeal properly so-called,
Hence in case of mere recourse, the judge-in-ordinary
may proceed with the trial and pronounce final sentence,
unless he has been duly informed that the Apostolic See
has called the case before its own court. The difference
between appeal and recourse is explained in can. 1889.
For an apparent exception as to parishes and benefices
see can. 2146.
£
Can. 1570
ordinary tribunals
§ i. Exceptis causis Sedi Apostolicae reservatis aut
ad eandem advocatis, ceterae omnes cognoscuntur a
diversis tribunalibus, de quibus in can. 1572 seqq,
§2. Quodlibet tamen tribunal, quod attinet ad
8 Pius VI, "Super soliditate," stance"; status implies the condi-
Nov. 28, 1786, §4. tion or status in which the trial
4 Cone. Vatic., Seas. TV, c j, D* happens to be, for instance, after
v% et rations primatus. the summons, before the closing of
5 Cradus means stage or instance, the acts, after the interlocutory of
u we say, " first or second in- definitive sentence, etc.
* I Inr»al*> - Original from
,00cVC UNIVERSITY OF WISCONSIN
26 ECCLESIASTICAL PROCEDURE
partium et testium examen aut citationem, docu-
mentorum, vel rei controvcrsae inspectionem, dc-
cretorum intimationem aliaque huiusmodi, ius habet in
auxilium vocandi aliud tribunal, quod normas pro
singulis actibus iure praescriptas servare debet.
Can. i 57 i
Qui eausam vidit in uno iudicii gradu, nequit eandem
causam in alio iudicare.
With the exception of the cases reserved to, or called
before the Apostolic See, i.e., the causae maiores, which
are such either by reason of the matter involved or of
the persons concerned, all other cases are tried by the
several tribunals mentioned below (can. 1572 sqq).
Causae maiores are also excluded from the S. Roman
Rota and the Signatura Apostolica.8
Now these regular or ordinary tribunals may find it
difficult to examine or summon the parties and witnesses,
to obtain and examine the necessary papers, to notify
the decrees, and so forth, because the parties and wit-
nesses may live in distant and separate dioceses, or even
in countries with which communication is difficult. This
happens especially in matrimonial trials.7 What is to be
done in such cases? The Code rules that in such cases
the tribunal which is in a condition to furnish the neces-
sary information or to procure the legal procedure, must
assist the tribunal which tries the case. Of course, the
court thus called upon to assist is held to obey the legal
norms prescribed in the Code.
This applies also to the S. Romano, Rota. If the party
P
6 Pius X, " Sopienti conditio," T S. C. EE. et RR., June it,
June 29, 1908 (A, Ap. S., I, 15)? 1880, n. 19; S. C. P. F., 1883, n.
Lex Propria S. R. R., can. 15 XIX (Coll., nn. 1534. 1586).
(ibid., p. 24).
oogle
f^ ^ s ,|,, Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1571 27
a
is not present in Rome and has no procurator there, the
diocesan court may be told to assist the S. Tribunal, which
issues either a letter — which is a mild form of com-
mand — or a decree to the Ordinary in question to supply
the processual acts.8 Sometimes a iudex instructor is
selected from outside the Curia (sc. Romana), who has to
gather the proofs from witnesses, experts, and documents.
This is done by a letter called litterae rogaioriae sen
remissoriae. Such letters are also sent to diocesan courts
when the litigants reside outside of Rome and cannot be
easily summoned.0 It is evident that the diocesan courts
are obliged to give information and to proceed according
to judicial rules, for otherwise the parties might escape by
making exceptions which would draw out the trial in-
definitely.
The iudex instructor, as assistant of another court than
the trial court proper, must not be confounded with
the court of appeal, or court of second instance, because
no sentence is given by the assisting court. Only if a
case has been decided by a court in one stage or instance,
the same case can not be decided again by the same court
in another stage (can. 1571), because an appeal requires
two different courts, one lower and the other higher.10
in
• Cfr. Kct*lae S. R. R., Aug. 4. istruttort." However, the very
1910, c 14 (A Ap. S., II. r88). term judge accniB to convey too
9 Ibid., can. 106, can. 143 ('. c, much, as if a sentence were im-
p. 818, 827). plied; but as the Latin also
10 Cfr. c. 35, X, II, as. Iudex uses the term iudex it may be ac-
instructor it not easily translated ccpted, although muditor would per-
into English, although it has been haps be better; cfr. Messmer, /. c,
rendered "judge of inquiry," ac- p. 53.
cording to the Italian " gindice
gle
I , Original from
UNIVERSITY OF WISCONSIN
■
pi
CHAPTER I
THE ORDINARY TRIBUNAL OF THE FIRST
INSTANCE
AST. I
the judge
Can. 1572
THE LOCAL ORDINARY
§ i. In unaquaque dioecesi et pro omnibus causis a
iure expresse non exceptis, iudex primae instantiac
est loci Ordinarius, qui iudiciariam potestatem
exercere potest ipse per se, vel per alios, secundum
tamen canones qui sequuntur.
§ 2. Si vero agatur de iuribus aut bonis temporalibus
Episcopi aut mensae vel Curiae dioecesanae, contro-
versia dirimenda deferatur vel, Episcopo consentiente,
ad dioecesanum tribunal collegiale quod constat of-
ficial! ct duobus iudicibus synodalibus antiquioribus,
vel ad iudicem immediate superiorem.
Aside from the cases excepted by law, i.e., those ex-
pressly mentioned in can. 1556 and 1557 and those as-
sumed or accepted by the Apostolic See (can. 1570, §1),
all cases must be tried by the local Ordinary, who may ex
ercise his power personally or by proxy, but must in-
variably proceed according to the rules laid down in the
following canons. This is the law, new as well as old,1
lC. 1, X, I, 31; Trid., Sew. 24, c ao, dt ref.
28
jle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
-
CANON 1573 29
for every diocese. Exempt religious, of course, are
bound to this tribunal only in cases expressed by law
(can. 616) ; otherwise their competent judge is the re-
spective superior (can. 1579).
If a case concerns the rights or temporal property of
the bishop, of the episcopal tnensa (revenues), or of
the diocesan court, it may, with the consent of the bishop,
be tried in a body by the diocesan tribunal, consisting of
the official and two senior synodal judges, or it may be
brought before the court of the immediate superior.
The antiquiores are those longest in office, and the
immediate superior would be the metropolitan. If the
latter is a party to the trial, the immediate superior is the
Delegate Apostolic, provided his instructions give him
that power; otherwise, Rome.
CAN. IS73
THE OFFICIAL
§ z. Quilibet Epiacopus tenetur official em eligere
cum potestate ordinaria iudicandi, a Vicario General!
distinctum, nisi parvitas dioecesis aut paucitas negotio-
rum suadeat hoc omcium ipsi Vicario Generali com-
mittt.
§ 2. Officialis unum constituit tribunal cum Epi-
scopo loci : sed nequit iudicare causas quas Episcopus
sibi rcservat.
§ 3. Ofnciali dari possum adiutores, quibus nomen
eat vice-omcialiurn.
§4. Turn officialis turn vice-officiales esse debent
saccrdotes, integrae famae, in iure canonico doctores
vel ceteroqui periti, annos nati non minus triginta.
§ 5- Sunt amovibiles ad nutum Episcopi ; vacante
sede a munerc non cessant, nee a Vicario Capitular!
s'C
j ^ Original from
UNIVERSITY OF WISCONSIN
30 ECCLESIASTICAL PROCEDURE
amoveri possunt; adveniente autem novo Episcopo,
indigent confirmatione.
§ 6. Qui Vicarius Generalis est idemque officialis,
sede vacante, cessat quidem a Vicarii, non autem ab
officialis muncrc.
§ 7. Si officialis eligatur in Vicarium Capitularem,
ipse novum nominat officialem.
Our text insists upon the appointment of a diocesan
officialis. This official is first mentioned in the Deere-
tals 2 of Boniface VIII, whence we may conclude that
the office was introduced after 1234. The officialis was ,
appointed or commissioned by the bishop, and his office
was ordinary, though limited. Later it appears to have
been absorbed by that of the vicar-general. Now the
Code rules that every bishop is obliged to choose an
official with ordinary judiciary power. This office is dis-
tinct from that of the vicar-general. Only in case the
diocese is small and there is not much business, may the
bishop entrust the vicar-general with this office. How
small or how large a diocese should be to require an
officialis, is difficult to say ; it depends upon the territorial
extent as well as upon the number of the Catholic people
and clergy residing there.
The tribunal of the officialis and the bishop form but
one tribunal. Consequently no appeal is possible from
the one to the other, or vice versa. Besides, the officialis
cannot render judgment in cases which the bishop has
reserved to himself. There is no doubt some similarity
between the offices of the vicar-general and the officialis;
but there is also a difference, for the bishop cannot law-
fully curtail the power of the vicar-general beyond the
2C. 2, 6°, I, 14. Hi* cognitio puniettdi was denied him; neither
tausaruni was general; but the could he decree any removal from
fottstai inquirendi. eorrigtndi aut benefice, office, nr mdminUtratinn
>Ie
, v ,|Y, Original from
UNIVERSITY OF WISCONSIN
CANON 1574 31
cases mentioned in law, whilst the power of the officialis
is entirely subject to the good pleasure of the bishop.
Of course, the bishop has to make it clear which cases
he has reserved to himself; otherwise the officialis may
proceed, because his power is ordinary.
The officialis may be given assistants, but their power
is not ordinary, nor must they be looked upon as quasi-
judges in solidum. At least this seems to us a natural
assumption because otherwise there would hardly be any
unity of government.
The officialis as well as the vice-officialis must be priests
in good standing, doctors in canon law or otherwise ex-
perienced, and at least thirty years of age. They are
removable at the bishop's pleasure. Their office does
not cease during the vacancy of the episcopal see, nor
may they be removed by the vicar-capitular (admin-
istrator). But they need ratification by the new
bishop.
If the offices of vicar-general and officialis are held
by one person, the office of vicar-general, but not that
of officialis, ceases when the episcopal see becomes vacant.
If the officialis is elected vicar-capitular (administrator),
he shall appoint another officialis.
synodal judges and counselors
Can. 1574
§ 1. In qualibet dioecesi presbyteri probatae vitae et
in iure canonico periti, etsi extradioecesani, non
plures quam duodecirn eligantur ut potestate ab
Episcopo delegata in litibus iudicandis partem
habeant; quibus nomen esto iudicum synodaJium aut
pro-synodalium, si extra Synodum constituuntur.
§ 2. Quod ad eorum electionem, substitutionem,
oogle
Original fro m
UNIVERSITY OF WISCONSIN
32 ECCLESIASTICAL PROCEDURE
cessationem aut remotionem a munere attinet,
serventur praescripta can. 385-388.
§ 3. Nomine iudicum synodalium in iure vcniunt
quoque iudices pro-synodales.
Can. 1575
Unicus iudez in quolibet iudicio duos assessores con-
sulentcs sibi adsciscere potest; quos tamen ex
iudicibus synodalibus eligere debet.
Among ecclesiastical persons were mentioned synodal
judges, whose election, removal from office, etc., was de-
scribed in can. 385-388." The Code now rules that such
judges, elected either at, or outside of a synod, should
be not more than twelve in number for every diocese.
They must be priests of approved morals and experts in
canon law. They may be chosen from another diocese
if, to use a colloquial expression, the necessary " timber "
is not to be found in the diocese itself. Their office is
delegated by the bishop, Jby virtue of which fact they may
assist in handling ecclesiastical trials.
No discrimination is made between synodal and pro-
synodal judges because in law the latter are regarded as
synodal judges pure and simple. One of their preroga-
tives consists in being assumed as counselors by the judge,
who is entitled to select two of them in every trial (can.
1575). This is the rule inculcated by the Council of
Trent; but in course of time it seems that protonotaries
non participantes were often elected to the detriment of
the synodal judges. Benedict XIV restored the Triden-
tine enactment by admonishing the patriarchs, primates,
archbishops, and bishops to entrust the synodal judges
with ecclesiastical trials. Their number was to be in
1 Cfr. Vol. II of our Commtntorj, p. 418 ff.
gle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1576 33
proportion to the size and importance of the diocese, but
no less than four, priests of knowledge and proved ability,
should be chosen for each.4
a
1
collegiate board of judges
Can. 1576
§ 1. Reprobate contraria consuetudine et revocato
quolibet contrario privilegio:
x.° Causae contentiosae de vinculo sacrae ordina-
tionis, et matrimonii, vel de iuribus aut bonis temporal-
ibus cathedralis ecclesiae ; itemque criminales in quibus
res est de privatione beneficii inamovibilis aut de ir-
roganda vel declaranda excommunicatione, tribunali
collegiali trium iudicum reservantur;
2.0 Causae vero quibus agitur de delictis quae dc-
positionis, privationis perpetuae habitus ecclesiastici,
vel degradationis poenam important, reservantur
tribunali quinque iudicum.
§2. Loci Ordinarius tribunali collegiali triurn vel
quinque iudicum cognitionem committere potest etiam
aliarum causarum, idque praesertirn faciat quando de
causis agitur quae, attentis temporis, loci et perso-
na rum adiunctis et materia iudicii, difficiliores et
maioris momenti videantur.
§ 3. Duo vel quatuor iudices qui una cum praeside
tribunal collegiale constituunt, inter iudices synodales
Ordinarius, nisi pro sua prudentia aliter opportunum
existimaverit, eligat per turnum.
Q
Can. 1577
§ 1. Tribunal collegiale collegialiter procedere debet,
et ad maiorem suffragiorum partem sententias ferre.
4 " Quamvis paternae," Aug. 16, 1741.
I Original from
i V_-jOOglL UNIVERSITY 0FWI5C0NSIN
a
N
■
34 ECCLESIASTICAL PROCEDURE
§ 2 Eidem praeest officialis vel vice-ofhxialis, cuius
est processum dirigere et decernere quae pro iustitiae
adminis tratione in causa quae agitur necessaria sunt.
Can. 1578
Exceptis causis de quibus in can. 1572, § 2, Episcopus
semper potest tribunal! ipse per se praeesse ; Bed valde
cxpedit ut causas, praesertim criminales et con-
tentiosas gravis momenti, iudicandas relinquat tribu-
nal! ordinario, cui praesit officialis vel vice-officialis.
Canon 1576 concerns a modern8 institution which the
legislator prudently and seriously demands to be set up
in every diocese. How seriously he wishes to be taken
here may be judged from the very first clause, declaring
"every contrary custom is reprobated and every contrary
privilege is revoked." This institution is a collegiate
Board of judges, consisting either of three or five eccle-
siastics, who form, not a corporation, but what was for-
merly called a society or college, and hence go by the
name of collegiate tribunal; they must meet in a body and
all be present at the same time.
§ 1 rules that to a board of three judges are reserved
the following cases: (a) civil or contentious causes turn-
ing about the bond of sacred ordination (vinculum s. or-
dinationis, see can. 1993), the marriage tie (not mere
separation), and the rights and property of the cathedral
church ; (b) criminal cases which concern privation of an
irremovable benefice, which we believe must also be ap-
plied to the case of privation (not the mere removal) of
an irremovable pastor ; or which concern infliction or dec-
5 If we lay modern, we mean in are mentioned more than once in the
tke sense of an ordinary stable tribu- Decretals; c. 13. X, I, 3: c. ai, aa.
nal; for several delegated judges 34, X, I, 19.
jle
Original from
UNIVERSITY OF WISCONSIN
CANONS 1576-1578 35
at
laration of excommunication, which may also touch lay-
it
men.a
To a board of five judges are reserved all criminal cases
which involve the penalty of deposition, of perpetual pri-
vation of the ecclesiastical habit, or of degradation.
-
§ 2 permits the Ordinary to entrust the collegiate tri-
bunal of three or five also with the cognizance of other
cases, especially such as are more difficult and important
by reason of circumstances of time, place, or person, or
of the matter involved, for instance, in a mixed marriage
when satisfaction is to be decided and the persons con-
cerned are of high social standing. The same rule may
be applied to clerics who hold important offices and to
tendencies which are peculiar to a whole province or gene-
ration.
§ 3 commands the Ordinary to choose the two or four
judges who constitute the collegiate tribunal together with
the president, who is no one else than the diocesan offt-
cialis, in turn, from among the synodal judges, as, for
instance, is done by the Roman Rota, where three pro-
ceed per turnum. The turnus may be taken either by
seniority, or one senior and one junior, etc. But the Or-
dinary may depart from this rule if he deems it advisable,
and select ecclesiastics who are not synodal judges.
Can. 1577 determines the mode of procedure to be
followed by the board of judges. They must proceed
colleguxliter, i. e., in a body, and give sentence by majority
vote. Thus, if there are three judges, including the offi-
cialis, there must be two votes cast either for or against a
sentence; if five judges vote, at least three votes are re-
quired to pronounce either an interlocutory or definitive
sentence.7
• The tort draws no distinction :90s, con. 3 1 . | 5 ; Rec*lac S. R. R.,
between different kinds of excom- Aug. 4, 1910, 1 176 {A. Ap S\, I,
rr.umcation. p. 28; XI, 834).
7 Lex propria S. R. J?., April,
>Ie
Original fro m
UNIVERSITY OF WISCONSIN
36 ECCLESIASTICAL PROCEDURE
We said, "including the officials" for § 2 of can. 1577
rules that the ofHcialis or vice-ofRcialis is the president of
the tribunal, whose duty it is to direct the trial and decree
what is required for administering justice in the case. Of
course he must follow the general rules prescribed by the
Code. But, like any other judge, he may follow the dic-
tates of reason as long as these do not clash with the essen-
tials of justice.
Although the oiRcialis or vice-ofUcialis is ex officio the
president of the trial, the bishop himself may preside, and,
of course, also vote when a sentence is to be pronounced.
However, since no one should be judge in his own case
the bishop is precluded from presiding in all matters con-
cerning himself or his diocesan court, according to can.
x572» § 2- Besides, according to canon 1578, it is highly
advisable, that he leave the decision of criminal and con-
tentious (civil) cases, especially those of importance and
consequence, to the ordinary tribunal presided over by the
official or vice-official, lest he incur an odium which might
impair his authority.
Can. 1579
§ 1. Si controversia sit inter rdigiosos exemptos
eiusdem religionis clericalis, iudex primae instantiae,
nisi aliud in constitutionibus caveatur, est Superior
. provincialis, aut, si monasterium sit sui iuris. Abbas
localis.
§ 2. Salvo diverso constitutionum praescripto, si res
contentiosa agatur inter duas provincias, in prima
instantia iudicabit ipse per se vei per delegatum
supremus religionis Moderator; si inter duo mo-
nasteria, supremus Moderator Congregationis mona-
sticae.
gle
% ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
a
N
CANON 1579 37
§ 3. Si demum controversia enascatur inter rc-
ligiosas personas physicas vel morales diversae re-
ligionis, aut etiam inter religiosos eiusdem religionis
non exemptae vel laicalis, aut inter religiosum et
clericum saecularern vel laicum, iudex primae in-
atantiac eat Ordinarius loci.
If a dispute arises between individual exempt religious
of the same order or congregation, the judge of the first
instance is the provincial, or the abbot of an autonomous
monastery, provided the respective constitutions do not
ordain otherwise.
Unless the respective constitutions provide some other
mode, a civil case pending between two provinces must be
tried, in the first stage, before the superior general or his
delegate; or before the abbot president of monastic con-
gregations if the controversy is between two autonomous
monasteries. If a quarrel arises either between individual
religious, or between religious corporations of different
congregations or orders, or between individual religious
of non-exempt congregations or lay institutes, or between
religious and secular clerics or laymen, the judge in the
first instance is the local Ordinary. The last-named case,
of course, supposes that both litigants are in the same
diocese. If they are not in the same diocese, the other
rules of competency are to be followed, vis., those men-
tioned under can. 1 564-1568 (location of the litigious ob-
ject, contract, crime, etc.).
G| r Original from
OOglt UNIVERSITY 0FWI5C0NSIN
~
N
■
38 ECCLESIASTICAL PROCEDURE
Article II
AUDITORS AND REFEREES
Can. 1580
§ 1. Potest Ordinarius unum aut pi u res audi tores,
scu actorum instructors, sive stabiliter sive pro certa
aliqua causa constituere.
§ 2. Iudex auditorem eligere potest tantummodo pro
causa quam cognoscit, nisi Ordinarius iam provident.
Can. 1581
Auditores pro tribunali dibecesano, quantum fieri
potest, deligantur ex iudicibus synodalibus; pro
tribunali vero religiosorum deligendi semper sunt ex
alumnis eiusdem religionis ad normam constitutionum.
Can. 1582
Eorum est testes citare et audire, aliaque acta
iudicialia instruere secundum tenorem mandati, non
autem sententiam definitivam fcrre.
Can. 1583
Auditor in quovis litis momento ab officio removeri
potest ab eo qui eundern elegit, iusta tarnen de causa,
et citra partium praeiudicium.
Can. 1584
Tribunalis collegialis praeses debet unum de
iudicibus collegii ponentem seu relatorem designare
qui in coetu iudicum de causa referat et sententias in
scriptis redigat; et ipsi idem praeses potest alium ex
iusta causa substituere.
>Ic
£ * ^ .. ,L» Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1580-1584 39
Auditor 8 in our text means one who prepares the acts
of a trial (drafter or draftsman). He is therefore also
called instructor actoruttu Such a one, or more than one,
may be appointed by the Ordinary either permanently or
for any special case. But a judge may choose an auditor
only for a trial which he himself conducts, unless the Ordi-
nary has appointed one for the same case, in which hy-
pothesis the judge has to accept the auditor appointed by
the Ordinary (can. 1580).
Auditors for the diocesan court should, if possible, be
taken from among the synodal judges. For tribunals of
religious, members of the respective institute should be
selected (can. 1581). Auditors play a conspicuous part
in the Decretals. They were generally appointed by the
Pope upon the demand, or at least petition, of the parties.
They had to "hear" (from audire), to examine, to take
cognizance of the matters entrusted to them, and take
down in writing what seemed important. Besides, they
were obliged to report minutely and conscientiously to the
Pope, which act was designated by the Latin term " re-
ferred fl But they seldom or never pronounced judgment.
This right was given them only after they had been estab-
lished as a regular college, under the name of Rota.
Can. 1582 defines the duties of auditors. Their office
consists in summoning and hearing witnesses, in prepar-
ing the judiciary acts or documents according to the tenor
or wording of their commission or mandate. An auditor
may also be called upon to draw up a restrictus or sum-
mary of the acts.10 But he is never allowed to pronounce
a final sentence.
Q
8 Auditor is sometimes taken as III, 5: lf>< 21, X, I, 6; c aj, X, I,
identical with index instructor or *9\ C 4- X, IX, ia; Phillips, K.-R.,
judge of inquiry; cir., Meiimer, 1864, Vol. VI, p. 467 f.
Canonical Procedure, 1897, p. 53- "» S. C EE. et RR., June 11.
oCfr. c. 3, X, II, 13; c. 15. X, 1880, n. ao (Coll. P. F., n. 1534).
11, 13; c- 3. x, in, 27; c. 18, x,
*Ie
Original from
UNIVERSITY OF WISCONSIN
N
■
40 ECCLESIASTICAL PROCEDURE
Can. 1583 permits the judge to remove the auditor at
any moment of the trial, provided he has a plausible rea-
son for so doing, and the parties suffer no disadvantage.
Besides the auditor, a referee or ponens, taken from the
board of judges, is appointed by the president. This of-
ficial must report to the judges on the process of the trial
and write down the sentence. This is generally given in
the form of an answer to a query, e. g.: " Utrum canst et
de nulh tat c matrimonii? Resp. Affirmative (or negative,
as the case may be). If the judge who is appointed as
ponens, wishes to decline the honor (or burden), he may
do so, but he should have at least the semblance of a good
reason/1 in which case the president may substitute one
of the other judges to act as ponens.
Article III
■
NOTARY, PROSECUTING ATTORNEY, DEFENSOR VINCULI
At every process or trial there must be present a notary,
who at the same time acts as secretary. No papers or acts
are valid unless written, or at least signed, by him. This
latter clause permits the use of a typewriter. A rubber
stamp is not admissible for the signature.
The notary must take down in writing the depositions
of the witnesses who are present, as well as the answers
sent in from other courts, which were asked for by the
litterae rogatoriae.1*
The notary must be chosen by the judge, before the trial
begins, from among the notaries lawfully engaged in
practice — in Rome they have to undergo an examination
and are formally admitted to practice — unless the Ordi-
nary has specially appointed one for the case.
11 RegutatS. R. R., Aug. 4. »9io, 12 Ibid., I "41 I "44 <'• c, P-
I i79i I 9 (**< *P- Su II. 835. 783). to«i 837).
{ ".vmiIp Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
N
■
CANONS 1586-1589 41
promotor iustitiae and defensor vinculi
Can. 1586
Constituatur in dioccesi promotor iustitiae et de-
fensor vinculi; ille pro causis, turn contcntiosis in
quibus bonum publicum, Ordtnarii iudicio, in dis-
crimen vocari potest, turn criminalibus ; iste pro causis,
in quibus agitur de vinculo sacrae ordinationis aut
matrimonii.
Can. 1587
§ r. In causis in quibus eorum praesentia requiritur.
promotore iustitiae aut vinculi defensore non citato,
acta irrita sunt, nisi ipsi, etsi non citati, rcvcra inter-
fucrint.
§ 2. Si legitime citati aliquibus actibus non inter-
fuerint, acta quidem valent, verum postea eorum ex-
amini subiicienda omnino sunt ut ca omnia sive voce
sive scriptis possint animadvertere et proponere quae
necessaria aut opportuna iudicaverint.
Can. 1588
§1. Eadem persona officium promotoris iustitiae ct
defensoris vinculi gerere potest, nisi multiplicitas
negotiorum et causarum id prohibeat.
§ 2. Promotor et defensor constitui possunt turn ad
universitatem causarum turn pro singulis causis.
Can. 1589
§ 1. Ordinarii est promotorem iustitiae et vinculi
defensorem eligere, qui sint sacerdotes integrae famae,
in iure canonico doctorcs vel ceteroqui periti, ac
prudentiae et iustitiae zelo probatL
>gle
Original fro ni
UNIVERSITY OF WISCONSIN
42 ECCLESIASTICAL PROCEDURE
•
§ a. In tribunali religiosorum promo tor iustitiae sit
practerca eiusdem religionis alumnus.
Can. 1590
§ x. Promotor iustitiae et vinculi defensor electi ad
universitatem causarum a munere non cessant, sede
cpiscopali vacante, nee a Vicario Capitulari possunt
removeri; adveniente autem novo Praelato, indigent
confirmations
§ 2. Iusta tamen intercedente causa, Episcopus eos
removere potest.
Each diocese should have its prosecuting attorney and
its defensor vinculi.
Benedict XIV. in his well-known constitution, "Dei
miseratione/' Nov. 3, 1741, decreed ex plenitudine pote-
statts, that each and every diocese, no matter how small
or how large, should have a defender of the marriage
bond. To this task is now added another, viz., that of
defending the bond of sacred ordination, which forms, as
it were, a spiritual tie between the clergyman in higher
orders (u e., from subdeaconship upward) and the diocese
to which he belongs.
The prosecuting attorney (promotor iustitiae) is ap-
pointed for civil cases which, though perhaps of a private
nature, may, in the Ordinary's view, concern the welfare
of the diocese or the public welfare (bonurn publicum).
Thus, for instance, a quarrel between two clergymen about
the possession of a benefice or office may scandalize the
whole diocese.
The promotor iustitiae also functions in criminal cases
which, as already stated, almost exclusively concern
clergymen.
If these two officials are not summoned to trials which
.'le
v ,1,., Oriciinalfrom
UNIVERSITY OF WISCONSIN
CANON 1590 43
require their presence, all the acts are null and void, unless
the officials in question were actually present, even though
not summoned. Hence actual presence is required, not a
summons. In civil matters the promotor iustitiae may b«
summoned by the instructor processus, but his absence
would not invalidate the proceedings, whereas in criminal
cases his presence is absolutely required. The presence
of the defensor vinculi is indispensable in all trials con-
cerning the marriage bond or the validity of ordination.1*
However, if the promoter and the defender were not
present, though summoned, at one or the other hearing,
the validity, of the proceedings is not impaired, but these
officials may inspect the minutes afterwards, in order to
make, either orally or in writing, such remarks as they
may deem necessary or opportune.
One and the same person may be promoter and de-
fender, unless a multiplicity of affairs and cases prevents,
as may happen in large dioceses, or when cases are tried
by several courts, or in different places at the same time.
The offices of promoter and defender may be held for
all cases that may arise (ad universitatem causarutn) or
one may be appointed for each individual case (can.
1588). Those elected for all cases do not lose their office
during the vacancy of the episcopal see, nor may they be
removed by the vicar-capitular ; they need, however, the
approval of the new prelate. Besides, the bishop may re-
move them from office for any just cause (can. 1590).
This rule Benedict XIV established concerning the de-
fensor.14 The same Pontiff also described the qualities
which a defensor should have. The Code is even more
explicit and, besides, strictly requires the priestly charac-
ter. The promoters and defenders, therefore, should be
t&Reguloe S. R. R., Aug;. 4, 14 "Dei miserationt," Nov. 3.
1910 (.-J. Af. S., II, 819)' *74*» I S<
I Original from
1L UNIVERSITY OF WISCONSIN
-
■
pi
44 ECCLESIASTICAL PROCEDURE
priests in good standing, doctors in canon law or at least
able canonists, of tried prudence and justice.
In trials of religious the promoter must moreover be a
member of the same institute.
Article IV
beadles and couriers
Can. 1591
§ i.^Ad acta iudicialia intimanda, nisi alia sit probata
tribunalis consuetudo, constituantur cursores sive pro
omnibus causis sive pro causa peculiar! ; item ap-
paritores ad sententias ac decreta iudicis, eo com-*
mittente, exsecutioni mandanda.
§ a. Eadem persona utroque officio dcfungi potest.
Can. 1592
Laici ipsi Bint, nisi prudentia in aliqua causa suadeat
ut eccclesiastici ad id muneris assumantur ; quod vero
ad eorum nominationem, suspensionem et revoca-
tionem attinet, eaedem serventur regulae quae pro
notariis can. 373 statutae sunt.
Can. 1593
a
Acta quae hi confecerint, publicam fidcm f aciunt.
Couriers (cursores) were formerly employed by the
Apostolic Chancery to affix papal bulls on four well-
known public places in Rome, namely, St. Peter's, the Lat-
eran, the Apostolic Chancery, and the Campo de' Fiori.
This act constituted official promulgation." The Code
15 Ibid., I 17.
Go >gle
% ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANONS 1591-1593 45
%
a<
wants them to be appointed either as regular employees
of diocesan courts, or for individual cases, unless the re-
spective diocese or tribunal observes some other satisfac-
tory custom. These couriers have the duty of communi-
cating the judiciary proceedings or acts, of serving sum-
monses, etc.
The apparitores (beadles, constables) are employed
to carry out the sentences and decrees of the court. The
two offices named in this canon may be held by one and
the same person. The acts of cursores and apparitores
are official and must be so accepted by the public (can.
1593)-
As a rule these offices should be given to laymen;
but if prudence demands that in some particular case
an ecclesiastic be entrusted with such a mission, it may
be done. They are appointed, suspended, or removed
like notaries.16
IB See can. 373.
Gi Original from
OOglfc. UNIVERSITY OF WISCONSIN
N
■
CHAPTER II
the ordinary tribunal of the second instance
Can. 1594
§ 1. A tribunali Episcopi Suffraganei appellator ad
Metropolitans
§ 2. A causis in prima instantia pertractatis coram
Metropolita fit appellatio ad loci Ordinarium, quern
ipse Metropolita, probante Sede Apostolica, semel pro
semper designaverit.
§ 3. Pro causis primum agitatis coram Archiepis-
copo qui caret Suffragancis vel coram loci Ordinario
immediate Sedi Appstolicae subiecto, fit appellatio ad
Metropolitan^ de quo in can. 285.
§ 4. Inter religiosos exemptos, pro omnibus causis
coram Superiore provincial! actis tribunal secundae
instantiae est penes supremum Moderatorem; pro
causis actis coram Abbate locali, penes supremum
Moderatorem Congregationis monasticae; pro causis
vero de quibus in can. 1579, § 3, servetur praescriptum
§ § *> 2» 3 buius canonis.
Can. 1595
Tribunal appellationis eodem modo quo tribunal
primae instantiae const itui debet; et eaedem regulae,
accommodatae ad rem, in causae discussionc servandae
sunt.
1 Originalfrom
lOOglC UNIVERSITY OF WISCONSIN
CANONS 1594-1596 47
Can. 1596
Si collegialiter causa in prima instantia cognita
merit, etiam in gradu appellationis collegialiter nee
a minore iudicum numero definiri debet.
Appeal from the court of a suffragan bishop lies to
the metropolitan. If a case was tried in the first instance
by the metropolitan court, appeal lies to the court of that
local Ordinary whom the metropolitan, with the approval
of the Holy See, has chosen once for all as court of ap-
peal.1 Can. 285 insists that archbishops who have no
suffragans, and Ordinaries (including prelates or abbots
nullius who are immediately subject to the Apostolic See)
must choose the nearest metropolitan (viciniorem metro-
politan) for conciliar or synodal purposes. This same
nearest metropolitan is the court of appeals from the
archbishops and Ordinaries, as mentioned above.
For exempt religious the second instance, in all cases
tried by the provincial, is the superior general and in
cases tried by the local abbot, the abbot president. For
cases mentioned under can. 1579, §3, the competent
tribunal of appeal is the metropolitan or the suffragan
approved by the Apostolic See, or the nearest metropoli-
tan, also approved by the same Holy See. It depends on
whether the local Ordinary has a metropolitan, or whether
the case was tried by the metropolitan in the first stage,
or whether the archbishop or Ordinary had to choose
the nearest metropolitan.
The court of appeal must be established in the same
fashion as the court of the first instance; hence the
collegiate board with the official and vice-official must
be constituted also in courts of appeal, and the same rules
1 In the Acta Ap. Scdis there are now being published many such
approvals.
jle
k ,|,, Original fro m
UNIVERSITY OF WISCONSIN
48
ECCLESIASTICAL PROCEDURE
proportionately must be observed in the proceedings. If
the case was tried collegialiter by the first court, it must
be tried collegialiter also by the court of appeal; if three
judges functioned in the lower court, three must act in
the court of appeal; if five in the first, also five in the
second instance.
■
9
oogle
Original from
UNIVERSITY OF WISCONSIN
■
p
CHAPTER III
the ordinary tribunals of the apostolic see
Can. 1597
Komanus Pontif ex pro toto orbc catholico ad norman
can. 1569 iudex est supremus, qui vel ipse per se ius
dicit, vel per tribunalia ab ipso constituta, vel pcfl
iudices a se delegates.
On the history of the S. Romana Rota enough has been
said elsewhere.1 That Pius X has restored its ancient
splendor, no canonist will regret. As to the Signatura
Apostolica something will be said in Art. II, infra.
Although these two tribunals are constituted in
foro externo, or for judiciary matter proper, it must be
understood that the Roman Pontiff has not thereby un-
reservedly committed himself to them. He remains the
supreme judge in all matters, especially of appeal, as laid
down in can, 1569. Hence, instead of leaving a case
to these tribunals, he may pronounce judgment himself
or entrust trial to delegated judges, who then act in his
name, according to can. 199, §§ 1,2. However, as a rule,
all affairs which do not belong to the class of causae
maiores, are entrusted to the two ordinary tribunals.
1 Cfr. Vol. II, p. 267 f. of our Commentary.
49
►ogle
£ * ^ v iL» Original from
UNIVERSITY OF WISCONSIN
50 ECCLESIASTICAL PROCEDURE
Art. I
?
the sacra rota romana
Can. 1598
§ 1. Tribunal ordinarium a San eta Sede constitu-
tum pro appellationibus recipiendis est Sacra Rota
Romana, quae est tribunal collegiale constans certo
Auditorum numero cui praesidet Decanus, qui primus
est inter pares.
§ 3. Ii saccrdotcs esse debent laurea doctoral! in
utroquc saltern iure praediti.
§ 3. Auditorum electio Romano Pontifici reservatur.
§4. Sacra Rota ius dicit aut per singulos turnos
trium Auditorum, aut videntibus omnibus, nisi aliter
pro aliqua causa Summus Pontifex constituat.
Can. 1599.
§ 1. Sacra Rota iudicat :
i.° In secunda instantia causas quae a quo rum vis
Ordinariorum tribunalibus in primo gradu diiudicatae
fuerint et ad Sanctam Sedcm per appellationem Icgiti-
mam defcrantur ;
s.° In ultima instantia causas ab ipsa Sacra Rota et
ab aliis quibusvis tribunalibus in secunda vel ulteriore
instantia iam cognitas, quae in rem iudicatam non
transierint
§ 2. Hoc tribunal iudicat etiam in prima instantia
causas de quibus in can. 1557, §2, aliasve quas
Romanus Pontifex sive motu proprio, sive ad in-
stantiam partium ad suum tribunal advocaverit et
Sacrae Rotae commiserit ; easque, nisi aliud cautum sit
in commissionis rescripto, Sacra Rota iudicat quoque
ogle
£ " ^ , ,l,» Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
CANONS 1598-1601 51
in secunda et tertia instantia ope turnorum qui sibi
invicem succedunt.
Can. 1600
Causae maiores penitus excluduntur ab ambitu com-
petentiae huius tribunalis.
Can. 1601
Contra Ordinariorum decreta non datur appellatio
seu recursus ad Sacram Rotam; sed de eiusmodi re-
cursibus exclusive cognoscunt Sacrae Congregationes.
The S. R. Rota now consists of ten prelates or audi-
tors, chosen by the Roman Pontiff and presided over by
the dean, as the first among equals. The auditors must
be doctors of both civil and canon law, and priests. They
form the ordinary court of appeals, and a regular colle-
giate board of judges, who sit in judgment by turns, each
consisting of three auditors, or in full session, unless the
Pope decrees otherwise in some particular case. They
have their special rules or by-laws, which are not secret,
but have been officially published.2
The competency of the S. Roman Rota is as follows :
i.° It passes judgment in the second instance on all
cases tried by any court of Ordinaries in the first stage
and lawfully appealed to the Holy See. Here it may be
well to state that the Rota will not accept any case unless
a sentence has been rendered by the first judge or in the
first instance. Otherwise the S. R. Rota has to ask for a
sanatio or return the acts, all of which causes delay.
2.0 The Rota judges also cases which have already been
tried by itself or by another court in the second or any
2 See A. Ap. S., I, as ff., II, 783 &
Gr\nnl*> Original from
008IL UNIVERSITY 0FWI5C0NSIN
52 ECCLESIASTICAL PROCEDURE
other stage, provided these cases have not yet passed as res
iudicata or been definitively adjudged (cfr. can. 1902 f.).
3.0 Finally, the S. Romana Rota gives judgment in
the first instance on cases mentioned in can. 1557, §2,
and others which the Roman Pontiff, either of his own
accord or at the demand of the litigants, has reserved to
himself and entrusted to the Rota. The same cases may
also, unless the writ of commission is worded otherwise,
be tried by the S. Rota in the second and third instance
by way of succeeding turns. For the ten auditors are
divided into ten turns, the first consisting of the three last
(or junior) auditors, the second and third, of the six
preceding auditors, the fourth of the Dean and the two
last auditors, who again have to take their turn, etc.
Hence there is always one who did not sit with the same
two auditors.8
From the competency of the Rota are entirely excluded
the causae maiores, which are such by reason either of the
persons involved or of the importance of the matter.4 To
this class belong the cases mentioned under can. 1556
and 1557, § 1.
Can. 1601 rules that an appeal or recourse to the S.
Rota is admissible against the decrees of Ordinaries, be-
cause such cases are exclusively handled by the S. Con-
gregations. Hence whatever a local Ordinary settles ad-
ministratively, for instance, division of parishes, etc., and
in general all recursus in dcvolutivo6 tantum, must be
addressed to the S. Congregations, not to the Rota, and
the episcopal court must pass a sentence if the case is
tried in a judiciary way and appealed to Rome.
Q
tLex propria, c. 12, ! 1 (A. Ap. 8 See can. 34SI 5*3. §2; 134O1
S., I, «). S3". U95r *2: *4*B, S 31 3143, 83.
4 Ibid., can. 15 (/. c, p. 24).
jle
I % Original from
UNIVERSITY OF WISCONSIN
■
CANONS 1602-1605 53
Art. II
the signatura apostolica
Can. 1602
Supremum Signaturae Apostolicae Tribunal constat
nonnullis S. R. E. Cardinalibus, quorum unus Pracf ccti
muncrc f ungitur.
Can. 1603
§ 1. Apostolica Signatura videt potestate ordinaria:
i.° De violatione secret! ac de damnis ab Audi-
toribus Sacrae Rotae illitis eo quod actum nullum vel
iniustum posuerint;
a.° De exceptions suspicionis contra aliquem Sacrae
Rotae Auditorem;
3.0 De querela nullitatis contra sententiam rotalem;
4.0 De expostulatione pro restitutione in integrum
adversus rotalem sententiam quae in rem iudicatam
transient .;
5.0 De recursibus adversus sententias rotales in
causis matrimonialibus quas ad novum examen Sacra
Rota admittere renuit;
6.° De confiictu competentiae quern enasci contingat
inter tribunalia inferiora, ad normam can i6ia, § 2.
§ 2. Videt ex potestate delegata de petitionibus per
suppliers libellos ad Sanctissimum porrectis ad
obtinendam causae commissionem apud Sacram
Rotam.
Can. 1604
a
§ 1. In causa criminal!, de qua in can. 1603, § x, n. x,
si forte locus sit iudicio appellationis, boc obtinctur
penes ipsum Supremum Tribunal.
jle
/•^ ^ v ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
54 ECCLESIASTICAL PROCEDURE
§ 2. In casu suspicions, Apostolica Signatura dcfinit
utrum sit locus recusation! Auditoris, necne ; quo facto,
iudicium ad Sacram Rotam rcmittit, ut, secundum
suas regulas ordinarias, procedat, Auditore, contra
quem exceptio mota fuit, in suo turno manente vel ex-
cluso.
§3. In casu querela© nullitatis aut restitutionis
in integrum aut recursus de quibus in can. 1603, § 1,
nn- 3- 4- 5> de hoc tantum iudicat num sit nulla
sentcntia rotalis, num locus sit restitution! vel recursus
sit admit tendus; et nullitate declarata aut restitutio ne
concessa vel admisso recursu, causam rcmittit ad
Sacram Rotam, nisi Sanctissimus aliter provident
§4. In examine supplicum libellorum Signatura,
habitis opportunis notitits et auditis iis quorum in-
terest, decernit utrum precibus annuendum sit, necne.
Can. 1605
§ 1. Supremi Tribunalis Signaturae sententiae suam
vim habent, quamvis rationes in facto et in hire non
contineant
§ 2. Nihilominus sive ad instantiam partis sive ex
officio, si res postulet, Supremum Tribunal edicere
potest ut praedictae rationes exponantur secundum
regulas Tribunalis proprias.
After the auditors of the papal household had been con-
stituted a formal corporation or court of trials, they were
withdrawn from the immediate entourage of the Pope,
who was then served by chaplains, called referendarii.
These had to examine the petitions submitted to the
Pontiff and present those worthy of acceptance to the
Pope for his signature. Among these petitions, of course,
there were such as required judiciary procedure, in which
ogle
£ * -» v -iL-. Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1602-1605 55
the referendarii lacked competency. Hence they could
only issue decrees to other Roman tribunals, which per-
haps had refused to render a decision or to accept the
case at all. Although, therefore, the Signatura was not
a tribunal in the proper sense of the word, yet it decided
the competency of other tribunals and enforced the accep-
tance of cases when refused. This was the office of the
Signatura Iustitiae. Besides this, there was another,
which had more especially to deal with favors that be-
longed neither to the Dataria nor to the Poenitentiaria.
The persons that made up this college were called col-
lectively Signatura Gratiae. When the distinction be-
tween the two bodies was clearly made, is uncertain, but
it probably dates from the time of Innocent VIII (1484-
1492). In course of time both signaturae were reformed,
their rights and privileges more accurately determined,9
etc. But after the year 1870 their significance waned.
Pius X resuscitated the Signatura as one tribunal, under
the name Signatura Apostolica, which now consists of
four Cardinals, one of whom is prefect (can. 1602). Its
present ordinary competency is described by the Code as
follows :
1. It takes cognizance of any violation of secrecy or
damage done by the auditors of the S. Rota in not render-
ing justice or doing an injustice, whether by fraud or
through culpable negligence. In cases of such violation
or damage which involve a crime, appeal may be made by
the accused auditor to the supreme tribunal of the Signa-
tura.
2. The Signatura is also competent in any case of
suspicion pleaded against any of the auditors of the S.
e Sec Phillips, tf.-J?., Vol. VI, p. 127 f.; Benedict XV, " Attentu
498 IT. ; Ban gen, Die RSm. Curie, expasitis," June 38, 1915 {A. Ap.
1854. 301 ff-; Hilling (Engl. S., VII, 325) restored the two col-
Transl.) The Reman Court, 1907, leges of votantes and referendarii.
-
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
56 ECCLESIASTICAL PROCEDURE
Rota. In every such case the Signatura shall decide
whether the exception is well founded or not, and leave
it to the S. Rota to proceed according to the established
rules.
3. Furthermore the Signatura is competent when the
plaint of nullity is made against a rotal sentence, for in-
stance, when a marriage has been declared null.
4. Also in cases of restitutio in integrum being de-
manded against a rotal sentence which has become a res
iudicata.
5. Also in recourses against a rotal sentence concerning
matrimonial cases which the S. Rota refused to reconsider.
In the three last named cases (3, 4, 5) the Signatura
alone has to judge whether the rotal sentence was null
and void (on account of technical errors), whether resti-
tution is justified or recourse is to be admitted. After
the Signatura has rendered judgment, the case must be
remanded to the S. Rota, unless the Holy Father pro-
vides otherwise.
6. The Signatura is also competent when there is a
conflict of competency between inferior tribunals (can.
1612, §2). Finally, the present Pope has enlarged its
competency by giving to the Signatura a delegated power
by virtue of which it may take cognizance of petitions
addressed to the Holy Father to the effect that the S.
Rota may be entrusted with a case brought before his
Holiness. The Signatura, after having gathered informa-
tion and heard the parties concerned, decides whether and
how far the petition may be favored.7 The decisions or
sentences of the Signatura, to be effective, require no
statement of reasons as to fact or law, but the sacred
tribunal either ex officio, i.e., if it deems it necessary and
opportune, or if the parties insist, may explain the rea-
sons on which it based a decision, according to its own
by-laws.
f "Mentis expositis," I. c.
2 . . . Original from
-OO^IL UNIVERSITY OF WISCONSIN
p
■
Q
CHAPTER IV
delegated tribunals
Can. 1606
Delegati iudices servare tenentur regulas statutas
in can. 199-207, 209.
Can. 1607
§ 1. Iudex a Sancta Scdc delegatus uti potest
ministris constitutis in Curia dioecesis in qua iudicare
debet; sed potest etiam alios quoscunque maluerit
eligere et assumere, nisi in delegations rescripto aliud
cautum sit.
§ 2. Iudices vero ab Ordinariis locorum delegati uti
debent ministris Curiae dioecesanae, nisi Episcopus in
aliquo peculiari casu ob gravem causa m proprios et
extraordinarios ministros constituendos decreverit.
Delegated judges must follow the rules laid down in
can. 199-207 and 209. A judge delegated by the Holy
See may avail himself of the assistance of the officials of
the court of the diocese in which he is to judge: but,
unless his rescript reads otherwise, he may also choose
or take to himself whomsoever he pleases.
Judges delegated by the local Ordinaries are bound
to employ the officials of the diocesan court, unless the
bishop, for a weighty reason and in an individual case,
decides to appoint special and extraordinary officials.
57
ogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
TITLE III
RULES TO BE OBSERVED BY ECCLESI-
ASTICAL TRIBUNALS
c
s
After defining the cases that may be judged by eccle-
siastical courts, and describing the various tribunals,
higher and lower, in every stage, the Code now lays down
some general rules which are to be observed in all trials.
These rules concern the judges and officials of tribunals,
the order in which cases should be tried, the delays in law,
the time and place of judgment, and the persons that may
be admitted to court. Note, however, that these are only
preliminaries of the trial proper.
■
I ^ Original from
UNIVERSITY OF WISCONSI
58
■
CHAPTER I
JUDGES AND OTJHER OFFICIALS
This chapter commences with the so-called exceptio
fori decHnataria, when exception is taken to the person
of the judge because he is regarded as incompetent to try
the case at issue.
competency and suspicion
Can. 1608
Iudex competens parti legitime requirenti suum
ministerium ne recuset, firmo praescripto can. 2625,
§1.
Can. 1609
§ 1. Iudex antequam aliquem ad suum trahat
tribunal et iudicaturus sedeat, videat utrum ipse sit
competens, necne.
§ a. Eodenique modo antequam aliquem ad agendum
admittat, cognoscere tenetur num is in iudicio possit
iure consistere.
§ 3. Non est tamen necesse ut de his referatur in
actis.
Can. 1610
§ 1. Si exceptio proponatur contra iudicis corn-
petentiam, hac dc re ipse iudex videre debet.
§ 2. In casu exceptionis de incompetentia relativa,
si iudex se competentem pronuntiet, eius decisio non
admittit appellationem.
59
oogl
Original from
UNIVERSITY OF WISCONSIN
■
60 ECCLESIASTICAL PROCEDURE
§ 3. Quod si Judex se incompetentem declaret, para
quae sc gravatam rcputat, potest intra decern dierum
spatium appellationein ad superius tribunal inter-
ponere.
Can. 161 1
Iudex quovis in stadio causae se absolute incom-
petentem agnosccns, suam incompetentiam declarare
tenetur.
Can. 1 61 2
§ 1. Si inter duos iudices pluresve controversia oria-
tur quisnam coriim ad aliquod negotium competens sit,
res dennienda est a tribunali immediate superiore.
§ 2. Quod si iudices, inter quos exsistit com-
petentiae conflictus, subsint distinctis tribunalibus
supcnoribus, controversiae dennitio reservatur tri-
bunali supcriori illius iudicis, coram quo actio primo
promo ta est; si non habeant tribunal superius, con-
flictus dirimatur vel a Legato Sanctae Sedis, si adsit,
vel ab Apostolica Signatura.
■
a.
Can. 1613 '
§ 1. Iudex cognoscendam ne suscipiat causa m, in
qua ratione consanguinitatis vel afiinitatis in quolibet
gradu lineac recttae et in primo et secundo gradu
lineae collaterals, vel ratione tutelae et curatelae,
c
intimae vitae consuetudinis, magnae simultatis, vel
lucri faciendi aut damni vitandi, aliquid ipsius intersit,
vel in qua antea advocatum aut procuratorem egerit.
§ a. In iisdem rerum adiunctis ab officio suo ab-
stinere debent iustitiae promotor et defensor vinculi.
>gle
I . ' Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1608-1617 61
Can. 1614
§ z. Cum iudex, etsi competens, a parte recusatur ut
suspectus, haec exceptio, si prcponatur contra iudicem
delegatum in causa unicum vel contra collegium vel
maiorem delegatorum iudicum partem, dcfinienda est
a delegante; si contra unum vel alterum ex pluribus
iudicibus delegates, etsi Collegii praesidem, a ceteris
iudicibus delegatis et non suspcctis; si contra
Auditorem Sacrae Rotae, a Signatura Apostolica ad
normam can. 1603, § 1, n. a; si contra officialem, ab
Episcopo ; si contra auditorem, a iudice principal'..
§ 2. Si ipsemet Ordinarius sit iudex et contra ipsum
exceptio suspicions opponatur. vel abstineat a
iudicando vel quaestionem suspicionis definiendam
committat iudici immediate superiori.
§3. Si exceptio suspicionis opponatur contra
prornatorem iustitiae, defensorem vinculi aut alios
tribunalis administros, de hac exceptione videt praeses
in tribunali collegiali vel ipse iudex, si unicus sit
I Can. 1615
§ z. Si iudex unicus aut aliquis vel etiam omnes
iudices qui tribunal collegiale constituunt suspecti de-
clarentur, personae mutari debent, non vero iudicii
gradus.
§ 1. Ordinarii autem est in locum iudicum qui sus-
pecti declarati sunt, alios a suspicione immunes
aubrogare.
§3. Quod si ipsemet Ordinarius declaratus fuerit
suspectus, idem peragat iudex immediate superior.
-
Gi Original from
°°cVL UNIVERSITY QFWI5C0NSIN
6a ECCLESIASTICAL PROCEDURE
Can. 1616
Exceptio suspicionis expeditissime definienda est,
auditis partibus, promotore iustitiae vel vinculi dc-
f cnsorc, si intersint, nee in ipsos suspicio cadat
Can. 1617
Quod ad terapus attinet quo exceptiones inebm-
petentiae et suspicionis proponendae sint, scrvctur
praescxiptum can. 1628.
Since a judge is by virtue of his office appointed to
administer justice, he is not at liberiy to refuse his serv-
ices to those who request it. Hence our Code (can.
l<&5t § * ) has established certain penalties against those
who unreasonably fail to exercise their function as
judges, when duly called upon. And the superiors have
to see to it that they comply with their obligations, as
Innocent III already enjoined..1
However, compliance with these obligations supposes
competency. Therefore the judge, before he summons
any one to his tribunal, and when about to take his
seat,3 must first ask himself whether he is competent,
either by reason of his jurisdiction over the person, or
by reason of the matter he is to judge. This is done by
considering the various reasons which establish the com-
petent forum. If he is a delegated judge he must, be-
sides, be aware of the tenor of the rescript under which he
acts, in order not to overstep the limits of his power.
Here the commentators refer to the famous law
Barbarius a which offers the example of a fugitive slave
P
1 C. 17, X, II, i. evident, and can. 1877 seems to
2 The act of sitting is becoming imply,
to a judge, jet it is certainly not a L. 3, Dig. 1, 14, it officio frat-
required for the validity of the aen- forum.
tence, as I 3 of can. 1609 makes
§le
f^ ^ s ,1,, Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1608-1617 63
who acted as a judge, though he was no Roman citizen.
Ail the glossators hold with Ulpian that the acts of such
a judge would be valid, because this assumption is more
human and in keeping with the public welfare. How-
ever an intruder, if the titulus coloratus (common error)
were wanting, could not function validly.*
The judge must also consider whether those who seek
his services arc entitled thereto, that is, in general,
whether they are persons endowed with the right of
prosecution, of which more shall be said under title IV,
ch. I.
It is not necessary, however, to put all this into the
minutes (in. actis) of the case.
If the defendant (reus) takes exception to the judge,
on the claim that he is incompetent for one reason or
another, he must state the grounds for his claim. Such
a ground may be incompetency for lack of one of the
reasons which establish a competent forum, as stated
in can. 1560-1568 (relative incompetency). But if the
judge declares that his competency in the case is estab-
lished, no appeal is permitted from his sentence. There
may be other reasons brought up by the defendant to
establish the incompetency of the judge. Thus if the
judge is delegated by another, it may be objected that he
obtained his rescript by fraud.6 Besides, the defendant
may oppose the judge as being partial, because of aversion
for the defendant and similar reasons. In that case the
defendant may appeal to the higher court within ten
days from the date of the exception made, provided the
judge has admitted his incompetency and proof was fur-
nished.
a
If the judge has found himself absolutely incompetent,
4 Reiffeostud, II, 1, n. aco; Santi- 5 C. 38, X, I, 39.
Ld trier, IT, i, n. 14.
{ Inmalp Original from
>^,00cVC - UNIVERSITY 0FWI5C0NSIN
■
64 ECCLESIASTICAL PROCEDURE
•".£., by reason of the person to be judged as well as of
the matter under adjudication, he is bound to make a
declaration to that effect, no matter how far the trial
may have proceeded (can. 161 1).
The question of competency may be raised, not by the
defendant, but by the colleagues or co- judges, as to
which of them is entitled to hear the case. This quar-
rel should be settled by the immediate superior or next
higher court, according to the rules of appeal. If the
judges belong to different higher courts, the competent
higher court is the one to which the controversy was first
brought for settlement. If there is no higher court, the
question is to be settled either by the legate of the Holy
See or by the Signatura Apostolica.
Exception against the judge on account of blood re-
lationship and affinity is extended by can. 1613 to the
whole direct line and to the first and second degree of
the collateral line. Besides, the judge may be interested
in the case he has to judge for other reasons: he may
be guardian or administrator,0 he may be bound by the
ties of friendship, he may be an enemy, political or
personal, of the parties, or he may have a personal in-
terest in the case, either of gain or loss, or he may have
acted as attorney or proxy in the same case before. All
these reasons militate against the judge, who therefore
should not accept such a case for trial, though the Code
does not state the nullity of the act. Exceptions must
be heard and disposed of before the trial begins.
The same rules also apply to the promoter fw-
Htia& and the defensor vinculi, who therefore should
waive jurisdiction under such circumstances.
According to can. 1614, a plea of exception which arises
8 Thus c. 36, X, II, a8, which, however, mentions only a delegated
judge.
oogle
k ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1608-1617 65
not from lack of competency, but from suspicion, must be
settled by the delegans, if one judge, or all the judges, or
the greater part of the collegiate board of judges with dele-
gated power are objected to as suspicious. If the sus-
picion is alleged only against one or the other of the
board of judges, even though the suspected one may be
the president, the question must be decided by the other,
non-suspected judges. The Signatura Apostolica settles
all questions with regard to a suspected auditor of the
S, Rota. The bishop is competent to judge the plea
of suspicion against his official. And if there is an audi-
tor in any court, according to can. 1580, the exception
is disposed of by the chief judge, who in the case of a
collegiate tribunal would be the official, or the vice-offi-
cial if he takes the place of the official.
If the Ordinary himself is judge, and the plea of
suspicion is brought against him, he shall either abstain
from judging the case, or first have the exception settled
by his immediate superior, according to can. 1594-
If exception is taken to the fromotor iustiiiae, or the
defensor vinculi, or another official of the acting court on
the ground of suspicion, the president of the collegiate
board is competent to adjudge the matter.
If the judge sole, or one or all of a collegiate body
of judges, are declared to be suspect, they must be
changed, but the stage or instance of the court remains
the same ; the Ordinary should replace the suspected
judges by others who are beyond suspicion. Should the
Ordinary himself have been declared suspected, his im-
mediate superior, i.e., the metropolitan, should replace
him for this case by another judge. The plea of exception
must be disposed of as quickly as possible in order not
to conflict with can. 1620. When a case under that plea
comes up, the respective parties must be heard, and also
Q
Gi Original from
OOglt UNIVERSITY 0FWI5C0NSIN
66 ECCLESIASTICAL PROCEDURE
the promoter and defender, provided they are present
and not suspected themselves.
The time within which these exceptions of incompe-
tency and suspicion must be brought, is to be determined
according to can. 1628.
■
duties of the judge
Can. 1618
In negotio quod privatorum solummodo interest,
iudex procedere potest dumtaxat ad instantiam partis ;
ted in delictis et in iis quae publicum Ecclesiae bonum
aut animarum salutem respiciunt, etiam ex officio.
Can. 1619
§ 1. Si actor pro re sua probationes quas afferre
posset, non afferat, vel reus exceptiones sibi com-
petentes non opponat, iudex ne suppleat.
§ a. Si vero agatur vel de publico bono vel de
animarum salute, eas supplere potest et debet.
Can. 1620
Iudices et tribunalia curent ut quamprimum, salva
iustitia, causae omncs terminentur, utque in tribunal!
primae instantiae ultra biennium non protrahantur, in
tribunali vero secundae instantiae ultra annum.
Can. 162 1
§ 1. Excepto Episcopo qui per se potestatem
iudiciariam excerceat, omnes qui tribunal constituunt
aut eidem opem ferunt, iusiurandum de officio rite et
fideliter implendo coram Ordinario vel coram iudice
a quo electi sunt, vel coram viro ecclesiastico ab
jle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANONS 1618-1624 67
alterutro delegate, praestare debent: idque ab initio
suscepti officii, si sint stabiles, aut antequam causa
agatur, si pro peculiar! aliqua causa sint constituti.
§ 2. Etiam iudex a Sede Apostolica delegatus vel
iudex ordinarius in religione clerical! exempta idem
iusiurandum praestare tenetur cum primum con-
stituitur, adstante ipsius tribunalis notario, qui de
praestito iureiurando actum redigat
Can. 1622
§ 1. Quotiescumque iusiurandum praestatur sive a
iudicibus aut tribunalis administris, sive a partibus,
testibus, peritis, semper emitti debet praemissa divini
Nominis invocatione et a sacerdotibus quidem tacto
pectorc, a ceteris fidclibus, tacto Evangeliorum libro.
§2. Iudex partem, testern aut peri turn ad iusiur-
andum recipiens, eum regulariter commonefaciat turn
de sanctitate actus et de gravissimo delicto quod ad-
mittunt iurisiurandi violatores, turn etiam de poenis,
quibus obnoxii fiunt qui falsum in iudicio iurati af-
firmant.
§ 3. Iusiurandum secundum formulam a iudice
probatam praestari debet coram eodem iudice aut eius
delegato, adstante utraque aut alterutra parte, quae
interesse iurisiurandi praestationi velit.
Can. 1623
§ 1. In iu dice criminal! semper, in contentioso autem
si ex revelatione alicuius actus processuaiis praeiudi-
cium partibus obvenire possit, iudices et tribunalis
adiutores tenentur ad secretum officii
§ 2. Tenentur etiam semper ad inviolabile secretum
servandum de discussione quae in tribunal! collegiali
ogle
v ,|r. Original fro ni
UNIVERSITY OF WISCONSIN
68 ECCLESIASTICAL PROCEDURE
ante ferendam sentcntiam habetur, turn etiam de
variis suffragiis et opinionibus ibidem prolatis.
§ 3. Imo quotics causae vel probationum natura talis
sit ut ex actorum vel probationum evulgatione aliorum
fama periclitetur, vel praebeatur ansa dissidiis, aut
scandalum aliudve id genus incommodum oriatur,
iudex poterit testes, peritos, partes earumque advo-
catos vel procuratores iureiurando adstringere ad
secretum scrvandum.
Can. 1624
Iudex et omncs tribunalis administri, occasione
agendi iudicii, munera quaevis acceptare prohibentur.
According to the nature of different cases, the judge
is to act differently, and although, like a praetor, he may
be a judge by virtue of his office, yet in civil cases, which
concern private interests only, he can proceed only upon
the demand of the parties who seek his services. Other-
wise the judge might commit excesses7 and interfere in
matters which are not in his power. Judgment supposes
a plaintiff, and where there is no complaint, no judgment
is required for private affairs. The case is different, of
course, when the public weal and the salvation of souls
are concerned, as in all criminal matters. Hence if the
judge has obtained notice or a complaint that a crime has
been perpetrated,8 provided, of course, it is not mere
slander or defamation, but based on facts, he is obliged
ex officio to proceed (can. 1618).
Different also is the way the judge must proceed in civil
and criminal cases, respectively. If the plaintiff in a
civil case offers no proofs, or the defendant pleads no
tC. 1, X, V, 31. 1880, n. 11 {Coll. P. F., n. 1534)-
8 S. C. EE. et RR., June ir,
ogle
, ,] , Original from
UNIVERSITY OF WISCONSIN
CANONS 1618-1624 69
exception, the judge is not supposed to supply the de-
ficiency or put in an exception, but acts merely as judge
between the litigant parties, and his knowledge is, as
shall be seen under can. 1869, strictly judicial. This
does not mean that he should act as judge even though
he has no knowledge at all of the requirements of the
office, for a judge culpably destitute of the knowledge re-
quired would not only commit a grievous sin, but be
liable to all the damage caused by his judgment.9
In criminal cases, which concern the public weal or
the salvation of souls, the judge may and must, if he can,
supply deficient proofs, and use even his extrajudicial
knowledge to ensure a fair and just judgment (can. 1619).
In order to prevent unnecessary and costly delays,
which may cause considerable damage to the parties in-
volved,10 the Code emphasizes the duty incumbent on
judges and tribunals, of speedily finishing trials. In the
first instance a trial should not be protracted over two
years, in the second, not over a year. However, speed
is not haste, and a " hurry up " trial might involve in-
justice. Hence this rule must be understood salva
iusiitia.
To secure proper and conscientious trials and judgments
the Code lays down another obligation for those who are
engaged in a trial, including all the officials and assistants
of the court, excepting the bishop, when he himself exer-
cises judiciary power. It is the oath. This must be ad-
ministered by the Ordinary or the judge who has selected
them, to the other officials and assistants, or any one dele-
gated by either of them, provided he be an ecclesiastic.
Habitual judges must take the oath before they assume
a
S fiouix, .'."'■- IudicUs EccUsiastieij, that a judge who culpably protracts
1855, Vol. I, p. 135 f. a trial is held to indemnification;
10 Theologians justly maintain Bouix, /. c, p. 136.
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
70
ECCLESIASTICAL PROCEDURE
office, and judges selected ad hoc, i.e., for one special
case, must take it before the trial begins. Also a judge
delegated by the Apostolic See, — including the bishop if
he acts as delegated judge and the judge of exempt clerical
organizations, — must take this oath before the trial com-
mences, in the presence of the notary of the court, who
shall put it down in writing (can. 1621).
The manner of taking this oath is as follows: The
judge and the officials or assistants of the court, together
with the parties, witnesses, and experts, must first invoke
the name of God ; the priests hold their left hand to the
breast, the rest of the faithful touch the book of the
gospels.11 Before administering the oath, the judge
should warn the parties, witnesses, and experts, of the
sacrcdness of oaths, of the grievousness of perjury, and
of the penalties established for perjurers.1*
The formula of the oath must be approved by the judge
and be pronounced in his presence or that of his dele-
gate, and of both or one of the parties who should wit-
ness the administration of the oath (can. 1622).
To the conscientious and proper administration of jus-
tice also belongs the keeping of the official secret, which
can. 1623 inculcates. This is always to be kept in
criminal trials. In civil trials it must be observed if a
revelation of the proceedings would be prejudicial to the
11 The formula uaed in the Ro- ligiose tervaturum in Us omnibus.
man Curia is (Acta Ap. S., I, #l>1
" In nomine Domini. Ego N. N.
spondeo, voveo ac iuro, fidelem el
obtdientem me semper futurum B.
etro ft Domino Nostra Papae
ehtsque legttimis successoribus ;
tninisteria mthi commissa in hoc S.
Congregatione (Tribunali out Officio)
sedulo ac ditigenter impleturum;
munera mi hi in remunerationem,
etiom sub specie doni oblata. nan
recepturun: et secretum oMdi rt-
quae sacri Canones aul Superiores
ecreta servari iusserint, itemque,
quoties ab Ordinariij id postulatum
fuetit. et quando ex revelatione
a l:. cuius actus praeiulicium partitms
aut Ecctesiae obvenire potest. Sic
me Dens adjuvct, et haec joncta
Dei Evangetio. quae meis man-hut
tango."
12 Cfr. can. 1757, f a, n. 1; can.
»795. I '■
>gle
Original from
UNIVERSITY OF WISCONSIN
CANONS 1618-1624 71
parties, either in a spiritual or material way. Therefore
the judges as well as all other officials and assistants,
must hold their tongue. The same persons are bound by
an inviolable secret concerning preliminary discussions
held by the board of judges before the final sentence is
pronounced. They must also observe strict secrecy con-
cerning the various ballots and the views pronounced at
the balloting. Besides, if the nature of the case or of its
proofs is such that a revelation of the proceedings (min-
utes) or arguments (proofs) would endanger the repu-
tation of others, or cause contention or scandal, etc., the
•a
judge may command the witnesses, the experts, the litigant
parties and their lawyers or proctors to keep the secret
under oath.
A final obligation set down in can. 1624 is the refusal
to accept gifts, no matter how small or great, whether
of a consumable nature, such as drinks, eatables,11 etc.,
or of a pecuniary or other kind, as a service, recommenda-
tion, etc This prohibition obliges the judge and all the
officials acting at a trial. Then the text says : occasione
agendi iudicii, which certainly means, not only on the
occasion of a trial, but also with respect or reference to
the same, because the object is to preclude bribery, which
the divine and ecclesiastical laws forbid.1*
This is so true that even if the litigants have equally
strong proofs in their favor, the judge is not allowed to
accept money in favor of one against the other.1
Q
15
18 C. 11, 6°, I, 3, permits accep- 14 Cfr. Is. i; Mich. 3; Bouix, 1
tance of pocuUnto and **culenta c, p. 137.
rr.rra UberalUate oblata, but our text 15 S. 0.. Prop. 26 damn.. Sept
exclude* even these. 34. i6&s (Denz., n. 997).
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
72 ECCLESIASTICAL PROCEDURE
penalties for judges and officials
Can. 1625
§ 1. Iudices qui cum certe et evidenter competentes
sunt, ius reddere recusant, vcl qui tcmcrc sc com-
petentes declarant, vel qui ex culpabili negligentia aut
dolo actum nullum cmn aliorum detrimento vel
iniustum ponunt aut aliud litigantibus damnum in-
ferunt, tenentur de damnis et ab Ordinario loci vel,
si de Episcopo agatur, a Sede Apostolica, ad instantiam
partis aut etiam ex officio, congruis poenis pro
gravitate culpae puniri possunt, non exclusa officii
privatione.
§ 2. Iudices qui secreti legem violare vel acta
secreta cum aliis quoquo modo communicare
praesumpserint, puniantur mulcta pecuniaria aiiisque
poenis, privatione officii non exclusa, pro diversa
reatus gravitate, salvis peculiaribus statutis, quibus
graviores poenae praescribantur.
§ 3. Eisdem sanctionibus subsunt tribunalis offici-
ales et adiutorcs, si officio suo, ut supra, defuerint,
quos omnes etiam iudcx punire potest.
In order to give weight to the preceding laws, the
legislator adds a penal sanction, which consists partly of
a natural, or at least moral, consequence, and partly of
a penalty to be imposed.
1. The moral or theological penalty consists in the
obligation of making restitution or paying the damages
that may arise from unqualified actions. These may be
. committed by :
a) judges who certainly and evidently are competent
on every score, as provided in can. 1560-1568, but refuse
to render judgment after complaint is made; lfl
16 c. 8. X, III, 149.
|M
'■-.
►ogle
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 1625 73
a
b) those who rashly declare themselves competent, be-
cause rashness inculpates the judge ; 1T
c) those who by culpable negligence or deceit proceed
invalidly to the detriment of others, by omitting the neces-
sary formalities or requisites as to the proceeding or
hearing of witnesses;18
d) those who act unjustly, for instance, by inflicting
a censure on innocent parties, or by bribery and avarice ; lfl
e) those who injure the litigants in any other way,
against their own conscience, through human respect or
hatred.50
2. The penal sanction, which is, judicially speaking,
also contained in the first clause, consists of proportionate
penalties, which may be inflicted upon the demand of
the injured parties, or ex officio:
a) By the local ordinary, if the judge is subject to his
jurisdiction, or
b) By the Apostolic See, if the guilty judge is a bishop.
This penalty may even be privation of the office of judge.
§ 2 threatens a pecuniary fine and other penalties, even
privation of office, for judges who dare to violate the
law of secrecy or communicate secret proceedings to
outsiders in any shape or form.
The punishment must be proportionate to the guilt,
and may be even severer if particular statutes provide
severer penalties.
The same theological and penal sanctions threatened
against judges may be inflicted by the judge on guilty
officials and employees of his court.
17 C. 49. C. 11, q. 3. »Cc. 8, 88, C. ft*, q. 3; c. ft,
1BC. ii, X, II, 19; c. a, 6°, IX, 1. 6°, II, i+.
20 C. ft, 6\ II, 14.
odhyG jle
> ■ j , Original fro ni
UNIVERSITY OF WISCONSIN
■
9
74 ECCLESIASTICAL PROCEDURE
security or bail
Can. 1626
Cum iudex praevidet actorero probabiliter spreturuxn
esse sentcntiam ecclcsiasticam si forte haec ipsi sit
contraria, et idcirco conventi iuribus non satis con-
silium iri, potest, ad eiusdem conventi instantiam vel
ctiam ex officio, actorem adigere ad congruam cau-
tionem pracstandam pro ccclesiasticae sententiae ob-
sezvantia.
If the judge foresees that the plaintiff will not heed
the ecclesiastical sentence in case it is against him, and
that, therefore, the rights of the defendant will not be
guaranteed, he may, either ex officio or upon the demand
of the defendant, oblige the plaintiff to give bail or
security to the effect that he will abide by the ecclesiastical
sentence.
It is customary and required, when cases are brought
before the S. Roman Rota, to deposit a certain sum of
money for the expenses and as bailment."
» Rtgulo* S. X. R., Auf. 4, ifio, I j (A. Ap S , II, ?95>-
G| Original from
°°alc UNIVERSITY GFWI5C0NSIN
CHAPTER II
order of procedure
Can. 1627
Iudices et tribunalia tenentur causas ad Be delatas
eo ordine cognoscere quo fuerunt propositae, nisi
aliqua earum cclcrem prac ceteris expeditionem exigat,
quod quidcm peculiari decreto a iudicc seu a tribunali
statuendum est.
Can. 1628
§ 1. Exceptiones dilatoriae, eae praesertim quae
respiciunt personas et mod urn iudicii, proponendae et
cognoscendae sunt ante contestationem litis, nisi con-
testata iam lite primum emerserint aut pars iureiu-
rando affirmet eas tunc tantum sibi innotuisse.
§ 2. Exceptio tamen de incompetentia iudicis abso-
luta a partibus opponi potest in quovis statu et gradu
causae.
§ 3. Pariter exceptio excommunicationis opponi
potest in quolibet iudicii statu et gradu, dummodo
ante senten tiam dertniti vam ; imo si agatur de excom-
municatis vitandis, aut toleratis contra quos sententia
condemnatoria vel declaratoria lata fuerit, ii ex officio
semper excludi debent.
Can. 1629
§ x. Exceptiones peremptoriae, quae dicuntur litis
finitae, veluti exceptio rei iudicatae, transactionis, etc.,
7S
jle
>
j % Original fro ni
UNIVERSITY OF WISCONSIN
76 ECCLESIASTICAL PROCEDURE
proponi et cognosci debent ante contestationem litis;
qui serius eas opposuerit, non est reiiciendus, sed con-
demnctur in expensis, nisi probet se oppositionem
malitiose non distulisse.
§ 2. Aliae exceptiones perernptoriae proponi debent
post contestatam litem, et suo tempore tractandae sunt
secundum regulas circa quaestiones incidcntes.
Can. 1630
§ 1. Actiones reconventionalcs satius statim post
litis contestationem, utiliter quovis iudicii momento,
ante sententiam tamen. proponi possunt.
§ 2. Cognoscantur autem simul cum conventionali
actione, hoc est pari gradu cum ea, nisi eas separatim
cognoscere necessariuxn sit aut iudex opportunius
cxistimaverit.
Can. 1631
Quaestiones de cautione pro expensis iudicialibus
praestanda aut de concessione gratuiti patrocinii, quod
statim ab initio postulatum fuerit, et aliae huiusmodi
videndae regulariter sunt ante litis contestationem.
Can. 1632
Quoties, proposita principal! controversial quaestio
praeiudicialis suboriatur, id est eiusmodi ex cuius solu-
tione pendeat solutio quaestionis principalis, ilia ante
omnia a iudice cognoscenda est.
Can. 1633
§ 1. Si ex principali controversia quaestiones in-
cidentes nascantur, cognoscantur prius eae quarurn
solutio viam sternat ad aliarum solutionem.
§le
f^ ^ s ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1627-1633 tj
§ a. Quod si nullo nexu logico inter se cohaereant,
quae prius ab alterutra parte propositae sunt, illae
antea definiantur.
§ 3. Si de spolio incidat quaestio, haec ante omnia
est dirimenda.
This chapter contains general rules for the judge, in-
structing him how to proceed. These rules concern the
order of time in which cases must be tried, exceptions
and reconventions, the giving of bail, and the logical or
casual interdependence of cases.
1. First the Code rules (can. 1627) that judges and
tribunals must try cases in the order of time in which
they are proposed (prior in tempore, prior in iure).
Hence a judge is not at liberty to give preference to
one case over another, unless he is convinced that one
should be disposed of as soon as possible.1 But this
view should always be objective. The inversion of the
regular order, if deemed necessary, requires a special
decree by the judge or the tribunal.
2. Next the Code lays down the rules for taking cog-
nizance of so-called exceptions. These are statements or
assertions of the defendant against the plaintiff, made
in order to postpone or weaken his purpose. They are
dilatory, if they defer action only for a time, and may,
as can. 1628, § 1 says, regard either the persons con-
cerned in the trial, i.e., the judge or plaintiff, or the
mode of the trial, for instance, the order in which it is
conducted.
These exceptions must be proposed and disposed of
before the litis contestatio; after that has taken place,
exceptions are admissible only if they were raised after
1 For instance, a caae of mstri- preference to a case of matrvnoninm
mouium contummatum on account centrahtndum.
of sinful occasion should be given
jle
, ,|Y> Original from
UNIVERSITY OF WISCONSIN
78 ECCLESIASTICAL PROCEDURE
St
the issue in pleading, or if the party declares under oath
that they became known to him only after the litis con-
Usiatio. Thus it may happen that suspicion is created
only after the plaidoyer, or that a relationship existing
between the judge and the plaintiff becomes known to the
defendant only after the contestatio.
However, exception may be taken to the competency
of the judge at any phase or stage (instance) of the trial,
provided his alleged incompetency is absolute, i.e., com-
prises the persons at law as well as the question proposed.
This means that even if an incompetent judge has al-
ready given an interlocutory or final sentence, he can
still be rejected on the plea of absolute incompetency.
A privileged exception is that of excommunication
against the plaintiff. This claim, says our text, may be
made at any stage or instance of the trial, up to the final
sentence. This favor was granted in order to make eccle-
siastical censures more respected. However, Innocent
III as well as Gregory IX enacted that a defendant who
deliberately omits to oppose the plea of excommunication,
though it is to be admitted in the first instance, must be
condemned to bear the expenses caused by protraction of
the trial.* The Code is silent about this fine, and more
probably does not sustain it*
Those who are under a condemnatory or declaratory
sentence of excommunication (either as vitandi or toler-
andi) must be excluded from ecclesiastical trials ex officio,
i.e., by the judge or board of judges, or by the president
or the local Ordinary. This exception may be raised even
against the judge or judges.
Another species of exception is that called peremptory,
which entirely quashes the action or intention of the plain-
»C. is, X II. 25: c. i, 6°. II. i2. i6a8 with sect. i. can. 1620 where
8 We say "more probably," by the expenses are clearly stated,
reason of comparing sect. 3 of can.
jle
v ,1,, Original from
UNIVERSITY OF WISCONSIN
CANONS 1627-1633 79
tiff. These are litis finitae, for instance, the proof that
the matter at issue is already adjudged, or an agreement
concerning a doubtful matter ( tr ansae Honis) , prescription,
or payment made.4 Such exceptions must be proposed
and settled before the litis contestatio. But they may
not be rejected even after the trial has entered that phase.
However, unless the defendant can prove that his omis-
sion to oppose this exception sooner, was not intentional
or malicious, i.e., designed to vex or fatigue his adver-
sary, he is to be condemned to pay the expenses caused by
the delay.
Other peremptory exceptions, which amount rather
to incidental questions, must be proposed after the litis
contestatio and are considered under Title XI.
3. The Code next considers the counter-plea or recon-
ventioj i.e., an action or suit which the defendant may
put in against the plaintiff before the same tribunal, for
instance, when a wife sues her husband for separation,
and the husband sues her for divorce, or the one pleads
desertion and the other cruelty. Such counter complaints
may be proposed from the litis contestatio to the moment
before the final sentence.
The plea proposed by the plaintiff and the counter-plea
opposed by the defendant should be tried at the same
time, pari gradu, and by the same judge. But the plain-
tiff is to be heard first and the defendant must make
answer to his allegations ; whereupon the counter-plea of
the defendant must be discussed. Thus the question
may be settled at once.5
4. Questions concerning the bailment or security for
defraying the expenses of the trial, or a gratuitous de-
fence asked for at the beginning of the trial, and other
4 En gel, II, 35, n. 1, 6.
B Cfr. c. 1, X. TT, 4; c. a, X, XL 10: Santi-Leitner, II, 4. n. 4-
>ogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
80 ECCLESIASTICAL PROCEDURE
similar questions should as a rule be settled before the
litis contestatio (can. 1631).
5. Finally the Code considers the logical or causal con-
nection of dependent or related cases or controversies.
If an apparently principal question depends on the solu-
tion of the prejudicial controversy, the so-called side-issue
must be settled first. For instance, when a wife demands
that her husband be restored to her, but the husband
claims that blood relationship exists between them, the
question of consanguinity, though praeiudkialis, must .be
settled first.*
Similarly a connection may exist between several inci-
dental questions or countercharges that may be brought
up. These must be settled so that the solution of one
paves the way for the solution of the other. Thus, if
an election is attacked, and the electors assert there was
in
a conspiracy or censure, the question of conspiracy or
censure must first be disposed of, even though it is purely
incidental .T
If there is no logical connection between several ques-
tions the one which was first proposed must be settled
first. When disseissin {spoln) is alleged, this charge
must be disposed of first.
e Cfr. c. 1, X, II, 10; c. s. X, I, 9- 1 C. 19, X, II, 1.
gle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
CHAPTER III
DELAYS AND " FATALIA "
Can. 1634
§ 1. Fatalia legis quae dicuntur, idest termini peri-
mcndis iuribus a lege constitute prorogari non possunt.
§ 2. Termini autcm iudiciales et conventionales, ante
eorum lapsum, poterunt, iusta intercedente causa, a
iudice, auditis vel petentibus partibus, prorogari.
§ 3. Caveat tamen iudex ne nimis diuturna lis fiat ex
prorogations.
Can. 1635
Si dies, pro actu iudiciali inciicta, sit feriata nee in
decreto iudicis dicatur expresse tribunal vacaturum
nihilominus causis cognoscendis, terminus intelligitur
prorogatus ad primam sequentem diem non feriatam.
The Code wishes trials to be terminated within a rea-
sonable time so that peace may be restored between the
litigants. However, delays may be granted in order to
enable the judge to obtain a fuller knowledge of the case
and to pass judgment with greater security. For this
purpose so-called dilationes or delays are granted either
by law or by the judge, or agreed upon by the parties.
I. The delays which are granted by law concerning the
time for appealing, or at least for finishing, an action,
are called fatalia legis. They cannot be prorogued,1 ex-
cept, of course, by the supreme judge.
1 Cfr. c, 4, Clem. II. 12; Santi-Leitner, II, 8, n. 2.
8l
oogle
, ,|,, Original from
UNIVERSITY OF WISCONSIN
■
82 ECCLESIASTICAL PROCEDURE
Judiciary delays, granted according to the prudent dis-
cretion of the judge, or the conventional delays agreed
upon by the parties, may be prorogued if there is a just
reason for such action and the parties were heard and
asked for delay. However, the judge must always watch
that the prorogation is not unduly lengthened, either by
deceit or contumacy.2
If the day set for a trial or judicial action is a feria,
i.e., a legal holiday, and no mention is made in the decree
of the judge that the tribunal does not sit on that day,
the term is supposed to be the next court day which is
not a feria.
2Cfr. cc. 5, 10, X, II, 14.
* x/\(tL» Original from
►ogle
UNIVERSITY OF WI5C0NS!
■
CHAPTER IV
place and time of judgment
Can. 1636
Quamvis Episcopus in quolibet suae dioecesis loco,
qui non sit exemptus, ius habeat erigendi tribunal,
nihilominus penes suam sedem aulam statuat, quae sit
ordinarius iudiciorum locus: ibique Crucifixi imago
emineat, et adsit Evangeliorum liber.
Can. 1637
Iudex e territorio suo vi expulsus vel a iurisdictione
ibi exercenda impeditus, potest extra territorium
iurisdictionem exercere et sententiam ferre, certiore
tamen hac de re facto loci Ordinario.
■
Can. 1638
§ 1. In unaquaque dioecesi Ordinarius publico
dccreto dies et horas definiri curet, pro loci ac
temporum adiunctis oppor tunas, quibus tribunal adiri
regulariter possit, et ab eo iustitiae administratio exigL
§ 2. Iusta tamen de causa, et quoties periculum sit
in mora, fas est Bdelibus quovis tempore iudicis
ministcrium in sui iuris vel boni publici tutelam in-
vocare.
Can. 1639
§ 1. Dies festi de praecepto, et ultimi tres dies heb-
domadae sanctae feriati habeantur ; et in iis citationes
83
Go< >gle
I , Original fro ni
UNIVERSITY OF WISCONSIN
84 ECCLESIASTICAL PROCEDURE
intimare, audientias habere, partes et testes excutere,
probationes assumere, decreta et sententias ferre,
denuntiare et exsequi vetitum est, nisi necessitas,
Christiana caritas, aut bonum publicum aliud postulent.
§ 2. Iudicis autem est in singulis casibus statuere et
denuntiare, an et quae acta supra dictis diebus expleri
dcbcant.
Although the bishop may set up a tribunal anywhere
in his diocese (provided it be not exempt), yet he should
establish a judgment hall in his episcopal city, which
shall be the ordinary place for holding trials. There
the Crucifix shall occupy a conspicuous place and there
must also be a copy of the Gospels. The reason for
choosing the episcopal city isf according to Boniface VIII
that experts may usually be found there.1
A doubt may perhaps arise concerning exempt religious,
who seem to live in an " exempt place." However, a
monastery or convent, as such, is not exempt, but local
exemption extends only as far as, and in virtue of, per-
sonal exemption. Hence it is licit to perform civil as
well as criminal jurisdictional acts, to examine witnesses,
or to write the acts of a trial in a convent or monastery
of exempt religious : and such acts are certainly valid.
Whether they would be valid if the entire trial, inclusive
of the sentence, were conducted in such a place, seems
doubtful.2 Of course, if the place itself were exempt,
for instance, a territory nullius, the proceedings would
be invalid.8
The Council of Vienne (1311-1313) allowed bishops
iC. ii, 6% X, 3. EE. et RR., Sept is, i74»; Me«-
2Cfr. c. 8. X. II. 20: c. 2. 6*. mer. Canonical Procedure, 1807. P.
II, 1; Wernz, Jus DecreK, Vol. V, 143, asserts the validity, and quote*
n. 315, p. 267, denies the validity S. C. 1mm., Jan. 21, 1821, and July
according to a decision of the S. C. 14, 1830.
* I ^ Original from
I Original from
3IL UNIVERSITY OF WISCONSIN f
CANONS 1636-1639 85
who had been forcibly driven from their dioceses, to give
judgment in any strange diocese, although this was other-
wise prohibited by law, according to the adage : " Extra
territorium ius dicenti non paretur impune." ■ Our text
amplifies and to some extent moderates this law. The
amplification consists in that it permits any judge who is
driven away from his diocese or prevented from exercis-
ing judgment there {e.g., on account of being a prisoner)
to exercise jurisdiction outside his own territory, pro-
vided (not for valid exercise, but as a sign of respect),
he notifies the local Ordinary of the fact, — a condition
of which the Clementine decretal said nothing.
Ordinaries should make known the days and hours when
the diocesan court may be approached by those seeking
justice. These days and hours (office hours) should be
set as conveniently as possible. The Code abstains from
fixing the hours more closely, and hence any hour is
valid.
Although the appointed days and hours should form
the rule for holding trials or giving audience, there may
be just reasons for seeking redress of grievances at other
times. Sundays and holydays of obligation, and also the
three last days of Holy Week are feriae or dies feriati,
legal holidays on which no tribunal should be in ses-
sion.4 On these days, therefore, it is forbidden to issue
summons, give audiences, hear parties or witnesses or
discuss their testimony, accept proofs, issue decrees or
sentences, denounce or execute criminals, — except in case
of necessity or when Christian charity or the public wel-
fare demand an exception. It is the right and duty of the
judge to decide in each individual case which acts per-
formed on forbidden days need supplementation. Here
SC. a; 6°, I, a. AprU 1, 1566, 18; Bened. XIV,
4 3. Piu» V, "Cum trimum," " Ab to tempore," Nov. 3, 174s-
ogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
■
9
ECCLESIASTICAL PROCEDURE
the old law has been modified, for the Decretals 5 declared
every judicial act performed on a sacred day or holiday
to be null and void. A summons served on such a day
did not render the party contumacious. Now it is left to
the judge to determine what is valid and what not.
sd by GoOgle
( - ,-,:]> Original fro ni
UNIVERSITY OF WISCONSIN
o
CHAPTER V
PERSONS ADMITTED TO TRIALS ; METHOD OF DRAWING UP
AND KEEPING JUDICIAL ACTS
The Code wishes to insure orderly procedure and cor-
rect treatment of the official acts which are drawn up for
and during a trial. To procure the first, it determines
the persons to be admitted.
Can. 1640
§ 1. Dum causae coram tribunal! aguntur, extranei
ab aula arceantur et ii tantummodo adsint, quos ad
processum expediendum iudex necessaries esse
iudicaverit.
§ 2. Omnes, iudicio assistentes, qui reverentiae et
obedientiae tribunali debitae graviter defuerint, iudex,
etiam illico et incontinenti si coram tribunali sedente
in id quis peccaverit, potest censuris quoque aliisve
congruis poenis ad ofneium reducere, advocatos
praeterea et procuratores etiam iure alias causas apud
tribunalia ecclesiastica pertractandi privare.
Can. 1641
Si alicui actui processuali interveniat persona
linguae loci ignara et iudices ac partes linguam huius
personae propriam non intelligant, interpres ad-
hibeatur iuratus, et a iudice designatus, contra quern
alterutra pars legitirnam exceptionem non proposuerit.
G| ^ Original from
°°8IL UNIVERSITY OF WISCONSIN
88 ECCLESIASTICAL PROCEDURE
The court room is not to be encumbered by outsiders
whilst a trial is going on, but only those whom the judge
deems necessary for conducting a trial are to be admitted.
This rule might be profitably copied by our civil courts.
Newspaper reporters are not required for the proper con-
duct of a trial.
It may happen that those who are allowed to be present
cannot control their temper but profess contempt and
scorn or otherwise act in a manner injurious and offensive
to the respect and obedience due to the tribunal. The
offense must be of a serious nature, but it need not con-
■a '
sist in actual maltreatment (for instance, spitting in the
face of, or making fists, at the judge) ; seriously con-
tumelious words suffice.1 In order to bring such intem-
perate persons to their senses, the judge may punish them
there and then by inflicting censures or other suitable
penalties. Lawyers and proctors guilty of such behavior
may be deprived of the privilege of acting at ecclesiastical
trials.
Among those to be admitted is the interpreter, if any
person among those called to the trial does not speak the
language of the place where the trial is held, and the
judges and parties to the trial do not understand his
language. Interpreters must be sworn and no one can
be appointed to this office against whom either party has
raised a legitimate exception.
the judicial acts
Can. 1642
§ 1. Acta iudicialia, turn quae meritum quaestioms
respiciunt. seu acta causae, ex. gr., sententiae et
1 C. n, X, V. 37: " de improbi- Honem judiris tenxeri prorumpen-
ate constat . . . advtrsui uuer- tis"
I Original from
OO^IL UNIVERSITY OF WISCONSIN
CANONS 1643-1645 89
cuiusque generis probationes, turn quae ad formam
procedendi pertinent, seu acta processus, ex. gr., cita-
tiones, intimationes, etc., scripto red a eta esse debent.
§ 2. Nisi iusta causa aliud suadeat, quoad eius fieri
potest, lingua latina redigantur; sed intcrrogationes
et responsiones testium, aliaque similia, lingua
vernacula connci debent.
Can. 1643
§ 1. Singula folia processus numcrcntur; et actuarii
subscriptio cum sigillo tribunalis apponatur in
unoquoque folio.
§ 2. Singulis actis completis vel interruptis seu ad
aliam sessionern remissis, apponatur subscriptio
actuarii et iudicis vel tribunalis praesidis.
§ 3- Quoties in actis iudicialibus partium aut testium
subscriptio requiritur, si pars aut testis hanc facere
nequeat vel nolit id in ipsis actis adnotetur, simulque
iudex et actuarius Rdem faciant actum ipsum de verbo
ad verbum parti aut testi perlectum fuisse, et partem
aut tcstcm vel non potuisse vel noluisse subscribere.
Can. 1644
p
§ 1. In casu appellationis, actorum exemplaria ad
norman can. 1642, 1643 con scrip ta et in fasciculum
religata, cum indice omnium actorum et docu-
mentorum et cum testiflcatione actuarii seu cancellarii
de eorum fideli transcriptione et integritate, mittantur
ad superius tribunal ; si exemplaria sine gravi incom-
s
modo exscribi nequeant, mittantur cum opportunis
cautelis acta ipsa originalia.
§ 2. Si eo mittenda sint ubi vernacula lingua non sit
cognita, acta ipsa in linguam latinam vertantur,
oogle
Original from
UNIVERSITY OF WISCONSIN
go ECCLESIASTICAL PROCEDURE
adhibitis cautelis ut de fideli translatione constet.
§ 3. Si acta debita forma et characters confecta non
fuerint, a iudice superiore repelli possum: quo in casu
illi, quibus culpa imputanda est, acta auis impensis
denuo conficere et mittcre teneatur.
Can. 1645
§ 1. Iudicio expleto, documents partibus restitui
debent, nisi in criminalibus, bono publico ita exigente,
iudex aliquod retinendum censuerit
§ a. Documenta omnia, quae apud tribunal manent,
in archivo Curiae deponantur give publico sive secreto,
prout corum natura cxigit.
§3. Notadi, actuarii et cancellarius sine iudicis
mandato tradere prohibentur exemplar actorum
iudicialium et documentorum quae sunt processui
acquisita.
§4. Anonymae epistolae quae nihil ad causae
meritum conierunt, et etiam subscriptac quae sint
certo caluinniosac, destruantur.
Writing plays a conspicuous part in every trial, yet
not all things that arc or must be written are o£ equal
importance. Some concern the merits of the case and are
styled acta causae. To this class of documents belong
all sentences, either interlocutory or final, and proofs of
every kind, even those presented orally, because they, too,
must be put down in writing. Other papers (acta pro-
cessus) touch the mode or form of procedure. To this
class belong the summons, intimations, the oaths taken,
and, perhaps, the special rules laid down for proceeding
in a particular case. If one should wish to call the acta
causae w records," and the acta processus " minutes," he
would, we believe, not commit a grievous mistake, al-
G| r Original from
OOglL UNIVERSITY QFWI5C0NSIN
CANONS 1643-1645
91
though the word records has a wider significance, though
not as wide as "minutes." Which of the acta must be
put in writing in order to be valid is determined under
each heading ; thus, for instance, the summons must cer-
tainly be recorded (can. 1723 f.) ; but if no invalidating
clause is attached, a trial cannot be attacked as invalid
because some portion of the proceedings was not written
out.
Some ecclesiastical acts are intended not only for pri-
vate use, but for the Church at large,2 whose language
is Latin, and since these records in many cases must be
forwarded to Rome, which acknowledges as official lan-
guages only Latin, Italian, and French," all acts should,
as far as possible, be composed in Latin, unless there is
a just reason for departing from this rule However,
the questions put to the witnesses, their answers, the
so-called articuli or specified charges and counter-charges
of plaintiff and defendant, and also the reports of ex-
perts4 are to be written in the vernacular language (see,
however, can. 1644, §2). Each and every sheet of the
records as well as the minutes (folia processus) must
be paginated and signed by the secretary, who has also
to put the seal of the tribunal on each. As soon as any
part of the acts (for instance, the defense, or the hearing
of one set of witnesses, or the report of an expert) has
been completed, the secretary should sign his name to the
record, which is then passed on to the judge (or to the
president of the tribunal, if a board of judges is sitting)
for their respective signatures. This process must be
repeated every time the session is interrupted or ad-
journed. The Code does not prescribe that only one page
2S. C. C, Aug. 22, 1840 (Colt. iRegutae S. R. R., Aug. 4, 1910,
P. P., n. 911). I 7 (A. Ap. S.. XI, 785).
*S. C. C, Aug. 23, 1840 CI. e-).
►ogle
Original from
UNIVERSITY OF WISCONSI
92 ECCLESIASTICAL PROCEDURE
of the sheet be written on, but we have become accus-
tomed to use only one page. Typewriting is not excluded,
but special ink should be used at least for important
documents.
If the judicial acts have to be signed by the parties
to the trial and by the witnesses, and these are either un-
able or unwilling to sign — they cannot be compelled to do
so — this fact must be set down by the secretary or clerk
in the minutes, and the record thereof accompanied by the
testimony of the judge and the acting clerk that the acts
were read to the respective parties or witnesses, and that
they were either unable or unwilling to sign them (can.
l643)-
The acts taken down and signed in the first instance
or stage of a trial may be required for the court of appeal.
In that case the original papers should remain with the
court of the first instance and copies forwarded to the
court of appeal. Each copy must be bound so as to form
a booklet and contain a list of the minutes and records,
and of all other documents, together with the attestation
of the secretary, or clerk, or chancellor, that the copy
is a faithful and complete transcript of the original text
If copies cannot be made without great inconvenience, the
original text may be sent to the court of appeals, provided
there is no danger that they be lost, abused, or dam-
aged, or fall into strange hands. We hardly believe that
a carbon duplicate, provided with the necessary signature,
or a photographic reproduction with the signature in
handwriting (no rubber stamp!) would be refused. If
the acts are written in the vernacular (for instance, Eng-
lish) and have to be sent to a court (for instance, at Rome,
where this language is unknown, or at least not officially
acknowledged) they must be translated into Latin and the
faithfulness of the translation guaranteed.
►ogle
k ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANONS 1643-1645 93
Acts not composed in the proper form and style may
be refused by the higher judge, and the official through
whose negligence this has happened, is bound to have
them redrawn and forwarded at his own expense (can.
1644).
Form refers to the condition of the sheets and the
signatures.
Cher act er may signify style, hence the expression
"stylus curiae/' the style peculiar to judicial acts. The
term " character " may also refer to the legibility of the
acts and their arrangement; or to the language, which,
as a rule, should be Latin, although if it is customary
in a country to employ the vernacular, this fact would be
a sufficient reason for composing the acts in that lan-
guage. It sometimes requires an expert in both languages
to translate certain terms into a dead language, and courts
are not precisely intended for stylistic and linguistic
exercises.
Here it may be added that a wise rule of the S. R. Rota
prescribes that the written defence should not comprise
more than twenty printed quarto pages, and the answers
not more than ten pages of the same size.5
After the trial is finished, such documents as testi-
monials, deeds, letters of appointment, certificates, etc.,
which were required in court, must be restored to their
owners. Only if the judge should deem it necessary to
retain the one or other such document in a criminal case,
may he keep it. But the documents which remain with
the court (for instance, the charges and counter-charges,
the depositions of witnesses, the defence, etc.) should be
deposited in the diocesan archives, either the public or the
secret archives — the latter in criminal and some secret
marriage cases. The notaries, secretaries, and chan-
p
-
B L*x propria, June 29, 1918; can. 19, 8 1 (A. Ap* S., I, 27).
gle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
N
■
94 ECCLESIASTICAL PROCEDURE
cellors • are not allowed to give out copies of any judicial
acts or documents which have been acquired by reason
of trials without a commission by the judge.
Anonymous letters which have little or no bearing on
the merits of the case, and manifestly slanderous letters,
though signed by their authors, must be destroyed.
<i What Archbiihop (then Pro an adequate distinction he drawn
feasor) Messmer wrote some twen* from the Code. Hence a chancellor
ty-tarce year* ago (Canonical Pro- may act as notary and secretary,
cedurc, 1B97, p. 58) is still true: provided he can fill the office and is
These different termt are " con- not otherwise employed in the same
fouodedly confused"; neither can case; see can. 372.
G I Original from
OOglL UNIVERSITY QFWI5C0NSIN
TITLE IV
THE PARTIES TO THE CASE
CHAPTER I
PLAINTIFF AND DEFENDANT
In each and every trial or case there is one who com-
plains and one who is complained against, one who ac-
cuses and one who is accused. The accuser may be the
judge himself, who, in certain criminal cases, must pro-
ceed ex officio} Yet even in this instance he must have at
least some knowledge of the case, gained from one source
or another.
After setting forth the office of the judge and his duties,
and outlining in general terms the mode and method of
procedure, the Code now turns to the parties involved
in a trial.
who may be plaintiff or defendant
Can. 1646
Quilibet potest in iudicio agere, nisi a sacris canoni-
bus prohibeatur ; reus autem legitime conventus
respondere debet
Can. 1647
Licet actor vel reus conventus procuratorcm vel
advocatum constituent, semper tamen tenetur in
1 Criminal action proper is reserved to the fiscal promoter; can. I9J4-
95
oogle
Original fro m
UNIVERSITY OF WISCONSIN
p
96 ECCLESIASTICAL PROCEDURE
iudicio ipsemet adesse ad praescxiptum iuris vel
iudicis.
First, the general rule is laid down that any one not
prevented by the Canon Law may be plaintiff. This is a
natural and inalienable right which can be to some extent
limited or taken away only by way of a judicial penalty.
The terms used to designate the plaintiff are actor, agere
in iudicio, habere personam standi in iudicio,2 from which
It may be seen how intimately this right is connected with
the personal rights of man. Nor is it surprising that the
Roman Law, which refused to acknowledge slaves as
persons, should deny them the right of being plaintiffs,
except in a very few cases of later date. Christianity
<knows no slaves in the Roman sense of the word. How-
•ever, the exercise of personal rights supposes certain
■necessary personal faculties, of reason and will. There-
fore the law provides for cases which concern persons
not fully developed. Besides, some kind(of a dependent
will mast be acknowledged in religious and moral per-
sons or corporations which have a corporate will. Lastly,
Ihe law may, as stated, deprive certain delinquents of the
right of acting as plaintiffs; as defendants all must be
admitted, and all must answer when called to a trial, or
sued, or accused, as otherwise criminals might profit by
their malice.1
The question arises whether plaintiff and defendant,
when duly and personally summoned, must appear per-
sonally before the judge. To* answer is given in can.
11647, according to a Decretal4 of Boniface VIII, but in
a more extended form. Plaintiff and defendant may
•present their case by proxy or through advocates (law-
2 This term might be rendered * C. 1, X, 6", II, I, which neo-
■ly right to prostenU. tioni only delegated judge*.
sCfr. c. 7, X, II, 1; c. II, Xf
■V, 1.
jle
j ^ Original fro rn
UNIVERSITY OF WISCONSIN
CANONS 164&-1651 97
*
yersy unless the law — which here means first and above
all, the common law, then also a particular law which does
not contradict the common law — or the judge demand
their personal presence. The supreme judge, i. p., the
Pope may give the power to summon the parties person-
ally in his letter of delegation in criminal cases. But
even in civil cases the judge who acts by virtue of his
office may demand the personal appearance of either plain-
tiff or defendant, for instance, to test his mental capacity
or character, or whenever the htramentum calumniae is
to be administered.6
1 !
MINORS
Can. 1648
a
§ 1. Pro minoribus et its qui rationis usu destituti
sunt, agere et respondere tenentur eorum parentes aut
tutores vel curatores.
§ 2. Si iudex existimet ipsorum iura esse in con-
flictu cum iuribus parentum vel tutorum vel curatorum,
aut ipsos tarn longe distare a parentibus aut tutoribus
vel curatoribus, ut hisce uti aut minime aut difficulter
liceat, tunc stent in iudicio per curatorem a iudice
datum.
§ 3. Sed in causis spiritualibus et cum spiritualibus
connexis, si minores usum rationis assecuti sint, agere
ct respondere queunt sine patris vel tutoris consensu;
ct quidem, si aetatem quatuordecim annorum
cxpleverint, etiam per seipsos; secus per tutorem ab
Ordinario datum, vel etiam per procuratorem a sc,
Ordinarii auctoritate, constitutum.
a
6 Santi-Lcitner, II, 1, tt. ip.
p
jle
I , Original from
UNIVERSITY OF WISCONSIN
■
ECCLESIASTICAL PROCEDURE
Can. 1649
Nomine eorum dc quibus in can. 100, § 3. stat in
iudicio rector vel administrator, firmo praeschpto can.
1653; in conflictu vero eorum iurium cum iuribus
rectoris vel administratoris, procurator ab Ordinario
designatus.
Can. 1650
Bonis interdict!, et ii qui minus firmae mentis sunt,
stare in iudicio per se ipsi possunt tantummodo ut de
propriis delictis respondeant, aut ad praescriptum
iudicis : in ceteris agere et respondere debent per suos
curatores.
Can. 1651
§ 1. Ut curator ab auctoritate civ ill alicui datus
a iudice ecclesiastico admittatur, debet accedere con-
sensus Ordinarii proprii illius cui datus est
§ 2. Ordinarius potest quoque alium curatorem
constituere pro foro ecclesiastico, si, omnibus mature
perpensis, id statuendum esse prudenter censuerit.
To act personally at trials requires a normally de-
veloped mind and will. Personal rights cannot properly
be exercised by infants or minors who lack judgment,
and, consequently, to secure them from hurting them-
selves by improvident acts, not only the ecclesiastical,
but the civil courts also, give them guardians.0 Like unto
infants are those adults who lack either the actual or the
habitual use of reason. Therefore can. 1648 rules that
for minors and those adults who lack the use of reason,
parents or guardians are obliged to act as plaintiffs or de-
fendants.
« Blackstone-Cooley, Comment., I, 464.
*Ic
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANONS 1648-1651
99
The text says: "out Mores out curatores." These
two terms are comprised by the one English term guard-
ians, although the Roman as well as ecclesiastical law
draw a distinction between tutores, who are given to
impuberes, and curatores, who are appointed for those
who have reached puberty, but have not yet completed
the age of twenty-one.* Also note the term " tenentur";
parents or guardians have the same obligation as the
plaintiff or defendant himself, according to can. 1647.
However, it may be that parents or tutors have per-
sonal interests • of their own involved in a trial, and that
these interests clash with the rights of the children or
mentally incapacitated wards. In that case the judge
should appoint a guardian. The same rule applies if the
parents or guardians live so far away from the residence
of their children or wards that they can not be present
at the trial or can attend only with great difficulty. At-
tendance would be difficult if the distance were great or
travelling inconvenient or expensive, or if there were
danger of seriously delaying the trial.
The ecclesiastical law naturally favors spiritual matters,
and matters closely connected with these, for instance,
the Sacraments, iuspatronatus and beneficiary cases, pious
legacies, etc. In all such cases minors who have at-
tained the use of reason may act as plaintiffs or defendants
without the consent of their parents or guardians ; and
after completing the age of fourteen, they may act by
themselves without a procurator. But before they have
completed the fourteenth year of age, minors, or rather
7 The tutor had charge of the
maintenance and education of the
minor; the curator had the care of
bit fortune; or in English law terms:
the tutor was the committee of the
person, the cunttor the con^niittcc
of the estate (Blackstone-Cooley,
I. c, I, 460).
8 This may easily happen if the
religion of the minor is at variance"
with that of the tutors, and these
are bigots.
od by GoOgle
Original fro m
UNIVERSITY OF WI5C0NSI
ioo ECCLESIASTICAL PROCEDURE
impuberes, must be represented at trials by a guardian
appointed by the Ordinary, or by a procurator whom they
have chosen with the approval of the Ordinary. Thus
disputed engagements of minors may be answered in court
by the parties themselves if0 they are over fourteen, and
this holds not only for young men, but also for girls, be-
cause the text does not discriminate as to sex.
Can. ioo, § 3, compares moral or artificial persons,
whether corporate or non-corporate, with minors. If such
are called to judgment, their rector or administrator must
represent them (can. 1653). But if the rector or ad-
ministrator has a special interest in the trial, which might
clash with the interests or rights of the corporation or
juridical entity which he represents, a procurator must
be appointed for said juridical persons.
Can. 1650 considers the case of Prodigals (bonis inter-
dicti) and weak-minded persons. We say prodigals, be-
cause the Roman law put spendthrifts, who were supposed
to be incapable of managing their own affairs, under
guardianship.10 The reason for this is to be sought partly
in the abnormal mental condition which shows itself in
one who squanders his property, and partly in the fact
that such a person may not be able to defray the expenses
of a trial. The aforesaid persons, then, need appear
personally only in criminal cases or when the judge de-
mands their personal presence, which he may, even in civil
cases, as explained under can. 1647. Otherwise their
curators may appear for them.
If curators have been appointed by the civil authority,
must the ecclesiastical judge admit them? Yes, answers
• C. 14, X, II, 13; c. 1, 6°, II, 1. restraint from executing deeds im-
10 L. I, Diff. 27, 10: "Lent XII posed on persons of weak mind.
tabularum prodigo interdicitur bono- Stimson's Law Dictionary, 1911,
rum tuorum adrninistratio." In s. v. " Interdict."
Scotch law, interdict means a legal
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
'-■-,
CANON 1652 101
can. 165 1, provided the Ordinary of the ward to whom the
civil authority has given a curator, consents. But the
same Ordinary may, if he deems prudent, appoint another
curator.
Note that in canons 1648, § 3, 1649, ^51 the apposition
loci is omitted, and hence, according to can. 198, the
superiors of clerical exempt institutes are also competent.
religious as plaintiffs
Can. 1652
Religiosi sine Superiorum consensu non habent
personam standi in iudicio, nisi in casibus qui
sequuntur:
i.° Si de vindicandis adversus religionem iuribus
sibi ex professionc quaesitis agatur ;
2.0 Si ipsi extra claustra legitime morentur et
iiirium suorum tuitio urgeat ;
3.0 Si contra ipsum Sup trior em denuntiationem
instituere velint.
Since religious have abdicated the habitual or actual
right of holding property — which is the cause of most
legal quarrels — and transferred it to the monastery, and
since, besides, they depend on the will of their superiors,
it follows that, to prosecute their rights as individual
religious, they need the consent of their superiors.11 But
there are a number of exceptions, which the Code reduces
to three, to wit:
i.° When a religious wishes to prosecute rights which
he has acquired by reason of his religious profession,
against the institute to which he belongs, lie may proceed
without the superior's permission. Thus if a sentence
llCfr. c 11, C. ia, q. i; c. 35. C. 16, q. 2; c. 7, X, I, 31; c. 6,
X, III, 35-
( %r\r*nl*> Original from
UNIVERSITY OF WISCONSIN
io2 ECCLESIASTICAL PROCEDURE
of dismisal or expulsion was inflicted, and the religious
believes he has just reason to complain against the same,
he may bring the case before the superior (provincial or
abbot) and also appeal to the higher court (general or
abbot president) ; he may do this also in case he was de-
pnved of the right of voting (active or passive) ."
2. If a religious lawfully dwells outside the enclosure
and is compelled to defend his rights, he may proceed
to do so without the superior's permission. Thus a re-
ligious who, by reason of his studies (see can. 606, §2),
is absent from his monastery, is lawfully absent, and may
defend his rights in the ecclesiastical and civil courts
according to can. 120; a religious who is rector of a
church, or administrator of a pious foundation, or chaplain
of an institution, may defend his case, because his office
involves the right of defence, and the permission of his
superior is included in the appointment to office.1'
3. Finally, individual religious may denounce their own
superiors and prosecute the case at the expense of the
monastery. The sources from which our text is taken ,4
mention in a general way the right of accusing superiors
who commit crimes, but the second text has in view espe-
cially the reformation of monasteries. A criminal charge
is never or rarely to be brought against superiors ; rather,
as our text says, should denunciation be made to the next
higher superior, who shall decide what course is to be
taken.16
lflCfr. c. 22, X, I, 1; Santi- crimes, not of mere transgressions,
Lei tn or, II, i, n. 17. tor instance, of a rubric which
is C. 16, X, II, 1; c i, CI c 111. perhaps cannot be carried out on
% a: Reiffenstuel, II, I, n. 167. account of circumstance! and ad-
14 Cc. 11, 26, X, V, 1. mits a common-sense interpreta-
lBWernx, £ c, V, n. 166. Be- don, nor of every transgression of
aides, it must be understood of a minor ecclesiastical law.
l€
,|r. Original from
UNIVERSITY OF WISCONSIN
CANON 1653
103
ordinaries and corporations
Can. 1653
§1. Ordinarii loco rum possunt nomine ecclesiae
cathedral is aut mensae episcopalis stare in iudicio ; scdt
ut licite agant, debent audire Capitulum cathedrale vel
Consilium ad ministration is eorumve consensum vel
consilium habere, quando periculo vertitur pecuniae
Bumma pro qua alienanda ad normam can. 153a, § §
a, 3 corundum consensus vel consilium requiritur.
§ 2. Beneficiarii omnes nomine beneficii possunt in
iudicio agere aut respondere; quod tamen ut licite
faciant. servare debent praescriptum can. 1526.
§ 3. Praelati ac Superiores Capitulorum, sodalitatum
et quorumlibct collegiorum stare in iudicio nequeunt,
nomine suae cuiusque communitatis, sine eiusdem
consensu ad normam statutorum. .
§ 4. Adversus cos de quibus in § § 1-3, si sine
praescripto consensu aut consilio in iudicio egerint,
piae causae aut communitati ius est ad refectionem
damnorum.
§ 5. In casu vero defectus vel negligentiae illius qui
administrators munere fungitur, potest ipse loci
Ordinarius per se vel per alium stare in iudicio nomine
personarum moralium quae sub eius iurisdictione sunt.
§ 6. Superiores religiosi nequeunt nomine suae com-
munitatis stare in iudicio, nisi ad normam constitu-
tionum.
The right of standi in judicio by reason of administra-
tion, is a limited right because, like that of alienation, it
is liable to restrictions or formalities set up by the law.
1. Local Ordinaries may prosecute for the rights at-
tached to the cathedral church or to the mensa episcopalis.
>Ie
Original fro m
UNIVERSITY OF WISCONSIN
104 ECCLESIASTICAL PROCEDURE
But in order to act lawfully (licite) they must have the
consent or advice of the chapter (diocesan consultors) or
the board of administrators (according to can. 1532, § 2, 3
on alienation).
2. Beneficiaries (which name certainly comprises our
pastors) may act as plaintiffs or defendants in the prose-
cution of beneficiary rights, but for so doing they need
the written consent of the local Ordinary, or, in urgent
cases, that of the rural dean, according to can. 1526.
3. Prelates and superiors of chapters, sodalities, and
collegiate bodies cannot go to court in the name of their
communities without the consent of the latter, as required
by their statutes. The statutes may distinguish between
the revenues, or property proper to the prelate or superior,
or at least subject to his personal and exclusive adminis-
tration, and goods which the prelate or superior adminis-
ters in the name of the community. For these latter
rights the superior needs the consent or advice of his
chapter or council according to the rules laid down in the
constitution or bylaws. Concerning the goods or prop-
erty which the superior administers in his own name, he
is not tied to the consent or advice of chapter or council.1'
However, in religious communities with solemn vows,
this distinction has little weight, except in orders where
the pcculium still exists.
§ 6, therefore, simply rules that religious superiors of
male and female organizations cannot go to court in the
name of their community except in so far as their con-
stitutions permit.
4. Those persons mentioned under nn. 1-3, if they go
to court without the prescribed consent or advice, are
D
18 Cfr. c. 21, X, I, 3; c. 16; X, there is no distinction between the
II, 1; Reiffenstael, II, i, n. 170 flF. mensa abbotis and the mensa corn-
In America, as far as we know, muniftis.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 1654 105
bound to make restitution of the damage caused to the pia
tausa or community by their action. The bishop is held to
repair the damage to his cathedral or tnensa episcopalis,
the beneficiary to his benefice, prelates and superiors to
their community. Of course, religious superiors who
have no property of their own cannot be held to restitu-
tion, except as far as they are able and it is compatible
with the vows, as stated elsewhere."
5. If there is no administrator, or if he is negligent,
the local Ordinary may himself or by proxy prosecute
the case in the name of those juridicial persons who are
subject to his jurisdiction, as, for instance, diocesan con-
gregations.
excommunicated persons
Can. 1654
§ 1 . Excommunicatis vitandis aut toleratis post
sententiam declaratoriam vel condemnatoriam per-
raittitur ut per se ipsi agant tantummodo ad im-
pugnandam iustitiam aut legitimitatem ipsius excom-
municationis; per procuratorem, ad aliud quodvis
animae suae praeiudicium a vert end um; in reliquis ab
agendo repeiluntur.
§ 2. Alii excommunicati generatim stare in iudicio
queunt.
Those who are under a sentence, either declaratory or
condemnatory, of excommunication, either as vitandi or
tolerati, are allowed to appear as plaintiffs in ecclesiastical
trials only in case they wish to plead against the justice
or legitimacy (validity) of the sentence of excommunica-
tion, and in this case they may defend themseh'es. But
IT Cfr. Vol. Ill, p. 273 of this Commentary.
{' ".vmiIp Original from
jrXjOOglL UNIVERSITY OF WISCONSIN
io6
ECCLESIASTICAL PROCEDURE
if they wish to ward off spiritual injury or damage, they,
should act by proxy. If they are called into court in
some other case, they must of course pbey.18
All other persons, even though excommunicated, are
admitted as plaintiffs. From this it would follow that
non-Catholics are not excluded from ecclesiastical courts,
as long as no declaratory sentence has been pronounced
against them. (De facto they are excommunicated; can.
■
9
U Cfr. c. 7, X, II, 1 ; c. a, *a,
6", V, 11; a spiritual damage would
le a marriage case or danger of
spiritual rain; Weroz, Vol. V, n.
►ogle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER II
ATTORNEYS AND COUNSELS (ADVOCATES)
The difference between attorneys and counsels is ex-
plained by the commentators on Book I, tit. 38, de pro-
curatoribus} But much of what they say can hardly
be applied to-day. We may say, broadly, that an at-
torney acts ex officio, while a counsel acts at random on
upon the demand of the client. We did not get much en-
lightenment from perusing the English terminology,2 in
order to establish an adequate distinction between barris-
ters, attorneys, advocates, and proctors. In the last an-
alysis all these terms signify persons who plead the cause
of others.
Our Code lays down certain conditions for a procura-
tor which are not applicable to a counsel (see 1656, § 2).
The procurator has limited power, whereas the counsel
is not limited by established restrictions. Apart from
this, as the Code itself admits, the distinction is but slight
choice of attorneys and counsels
Can. 1655
§ 1. In iudicio criminali reus aut a se electum aut a
iudice datum semper habere debet advocatum.
§ 3. Etiaxn in iudicio contentioso, si agatur de
minoribus aut de iudicio in quo bonum publicum
vertitur, iudex parti carenti defensorem ex officio at-
1 Cfr. Rtiffenstiiel, I. 38. nn. 7 **-
2 Cfr. Stimson's Law Dictionary, s. v.
107
oogle
Original from
UNIVERSITY OF WISCONSIN
D
8S. C. EE. et RR., June iz, «C, i, 6% I, 19; SantiLeitner,
j88o, n. 30 £. (.Coll P. F., n. 1534). H, r, n. 13.
jle
, ^| , Original from
UNIVERSITY OF WISCONSIN
108 ECCLESIASTICAL PROCEDURE
tribuat, aut, si casus ferat, parti etiam habenti alium
adiungat. *
§ 3. Practcr hos casus pars libere potest advocatum
ct procuratorem constituere, scd potest quoque in
iudicio per se ipsa agere et respondent nisi iudex
procuratoris vcl advocati ministerium necessarium
•xistimaverit.
§ 4. At Episcopus. si quando in causa est, aliquem
constituat, qui eius personam, procuratorio nomine,
gerat
Can. 1656
a
§ 1. Unicum quisque potest eligere procuratorem,
qui nequit alium sibimet substituere, nisi expressa
facultas eidem facta fuerit
§ 2. Quod si, iusta causa suadente, plures ab eodem
deputentur, hi ita constituantur, ut detur inter ipsos
locus praeventioni.
§ 3. Advocati autem plures simul constitui queunt.
§ 4. Utrumque munus, procuratoris et advocati,
etiam in eadem causa et pro eodem cliente eadem per-
sona exercere potest.
In criminal cases the defendant must choose a counsel,
or at least accept one appointed by the judge. This is
now the rule,8 though it appears to have been discoun-
tenanced by the Decretals,* which, perhaps owing to a
confusion of the counsel with the proctor, rather deny that
right or duty.
The appointment of a counsel may be made even
against the will of the defendant ("semper debet ha-
bere!1)
In civil cases also a defensor (the same as counsel or
CANON 1656
109
—
N
advocatus) must be appointed by the judge for minors
or in cases concerning the public welfare, if the parties
have no counsel. Besides, if a counsel or lawyer chosen
by the parties, or by the civil authorities, proves unde-
sirable or lacks the necessary qualities, as described in
can. 1657, the judge may appoint another counsel. This
appointment, in all the cases mentioned, is ex officio, i.e.,
the judge is in duty bound to make it
With the exception of these cases, then (vis.: criminal
cases, civil cases of minors or public interest, and of
counsels not acceptable) it is left to the parties to the trial
cither to choose a counsel or defend their own case, unless
the judge deems it necessary that a proctor or counsel
should be chosen, as in case the defendant has not the
necessary knowledge of legal procedure or the qualities
of equipoise and calmness necessary to defend his case
effectively. Besides, it may also be that the person him-
self does not care to be dragged into court, or that his
or her state of life does not permit him or her to leave
home.6
If the bishop is a party to a case, he should designate
a proctor or attorney to act in his name. This rule was
made to protect the episcopal dignity and to save bishops
the trouble of leaving their pastoral occupations.*
Can. 1656 rules that only one attorney or procurator
may be chosen by each party. This one cannot be sub-
stituted by another, unless he has obtained special per-
mission to that effect. One reason for this ruling lies
in the certainty required.7 We believe another reason
is that the procurator is chosen de industria personae, i.e.,
on account of personal fitness, which may not be found
in the substitute.
BCfr. ec. I, 3. 6". H »: *«»■
mer, /. c, p. 74-
0 Trid., S«s. 13, c. 6, de rtf.
TC. i. 6*. I, 19; Reiffenittiel, I,
38, a 5«.
ogle
Original fro ni
UNIVERSITY OF WISCONSI
-
ogle
£ " ^ v J„ Original from
* UNIVERSITY OF WISCONSIN
no ECCLESIASTICAL PROCEDURE
If several proctors are chosen, which can be done only
for good reasons, these must be appointed to act in soli-
dum, i.e., the one who first takes hold of the cast must
bring it to a finish.8
Counsels or lawyers are not limited as to number, and * '
the parties to a trial may therefore choose several with-
out restriction, **
The office of proctor and counsel may be held by one '»
and the same person, who may act m the same case and ^
for the same client. In this case the limit as to number ^
would certainly cease to be effective.
qualities and conditions of attorneys and
counsels
Can. 1657 \
1
§ 1. Procurator et advocatus esse debent catholici, *
aetate maiores, bonae famae; acatholicus non ad-
mittitur, nisi per exceptionem et ex necessitate.
§2. Advocatus debet praeterea esse doctor vel
alioqui vere peritus, saltern in iure canonico.
§ 3. Religiosus admitti potest, nisi aliud in consti- •
tutionibus caveatur, in causis tantum in quibus vertitur
utilitas suae religionis, de licentia tamen Superioris.
1
Can. 1658
§ 1. Quilibet pro lubitu a parte potest eligt et de-
putari procurator, dummodo secundum praecedentem
canonem idoneus sit, quin opus sit ut Ordinarii ap-
probatio antecesserit.
§ 2. Advocatus autem, ut ad patrocinium admittatiuv
indiget approbatione Ordinarii, quae aut generalis sit
ad omnes causas aut specialis pro certa causa.
fl RcifTenstuel, /. c, a. 24.
CANONS 1657-1658
in
§ 3. In iudicio coram Sanctae Sedis delegato, ipsius
delegati est approbare et admittere advocatum, quo
pars uti se velle ostenderit
§ 4. Procurator et advocatus, in causis quae ad
normam can. 1579, § § x, a aguntur in rcligionis
tribunals, cligcndi sunt ex eadem religione et ante
patrocinii susceptionem approbandi ab eo, qui partes
iudicis in causa agit ; in causis vero quae ad normam
eiusdem canonis § 3 apud tribunal Ordinarii loci
pertractantur, admitti potest etiam religioni extraneus.
Attorneys and counsels must be Catholics; they must
have completed the legal age of twenty-one years, and
oe of good moral standing. Non-Catholics are admitted
only by way of exception and in cases of necessity*
The text has a general bearing and requires only three
qualities: religion, age, and reputation. Hence laymen
and women are |not excluded. The Roman law per-
mitted women to act for their parents when sickness or
age prevented them.10 The third qualification would
seem to exclude excommunicated and infamous persona.11
However, since heretics are excommunicated, and are
nevertheless admitted in cases of necessity, a rigid exclu-
sion of censured persons can hardly be maintained. In
cases of necessity, which should at the same time be
exceptional, non-Catholics may act as attorneys or coun-
sels for the defence. An able lawyer of a non-Catholic
denomination may be more successful in defending a case;
we could give instances of this.
0 Thil canon miy also be applied
■0 cases of appeal, for instance, of
pariihioners who have recourse from
the biahop'a decree concerning
boundary lines to the Apostolic
Delegate: the latter should not be
more lenient thai- the law prescribes
for courts, especially if Catholic
lawyers or attorneys are available.
XQL. 41, Dig. 3, '3; but the
mother was not allowed to act aa
defender of her orphan son; 1. 18,
Cod. II, i a.
11 C. 7, X, XI, i; cc. i, a, C. 3i
q. r.
Go >gle
Original from
UNIVERSITY OF WISCONSIN
Q
oogle
% ,|rt Original from
UNIVERSITY OF WISCONSIN
112 ECCLESIASTICAL PROCEDURE
Since juridical knowledge is also required, and the Code
demands that counsel for defence be a doctor of canon '**
law, or at least an expert in that science, it is evident :dQH
that if this quality were wanting in a Catholic lawyer,
but found in a non-Catholic lawyer, the case of necessity ***
would be verified. The same rule may be proportionately
applied to Freemasons, who belong to a condemned sect.
Religious may be admitted as attorneys and counsels '*•
to defend their own institute with the permission of their *H
superiors and constitutions. If a religious has the same '&tii
case to defend, according to can. 1652, he can be chosen :&«r
procurator or counsel by the litigant religious; other- *dt
wise he needs the permission of his superior either for ^
appointing, or being appointed as, or for acting as a sub- -iti
stitute for, a procurator.11 4 vrf
Provided one has the qualities described in can. 1657, fa
he may be chosen and appointed procurator without the
formal approbation of the Ordinary. But in order to
be chosen and admitted as counsel for the defence he
must be approved by the Ordinary, who may grant that
license once for all, i.e., for all cases, or for a special case
only.
In trials conducted before a delegate of the Holy See, ^
the delegate himself is entitled to approve and admit the
counsel desired by the defendant.
For trials which, according to can. I579» § § *> 2i arc
conducted exclusively by and for religious, the proctor
and counsel for the defence are to be chosen from among
the members of the institute in question. Before they as-
sume the defence they must be approved by the judge. In
cases to be tried by the local Ordinary, according to § 3, ^
can. 1579, outsiders, i.e., persons who are not members of W
the same religious institute, may be admitted as procura- ^
12C. 3« Clem. I. »>•
■<k
CANONS 1659-1662
»3
tors or counsels, provided they have the qualifications de-
scribed in can. 1657, § § 1 and 2.
mandate of attorney and counsel
Can. 1659
§ 1. Procurator ne prius a iudice admittatur quatn
speciale mandatum ad lites scriptum, etiam in cake
ipsius citationis, mandantis subscriptione munitum, et
locum, diem, mensem et annum referens, apud tribunal
deposuerit.
§ 2. Quod si mandans scribere nesciat, hoc ipsum ex
scriptura constct necesse est, et parochus vel notarius
Curiae vel duo testes, loco • mandantis, mandatum
subsignent.
Can. 1660
Mandatum procurationis asservari debet in actis
causae.
Can. 1661
Advocatus, ut causae patrocinium suscipiat, habeat
necesse est a parte vel a iudice commissionem ad instar
mandati procuratorii. de qua in actis constare debet.
Can. 1662
Nisi speciale mandatum habuerit, procurator non
potest renuntiare actioni, instantiae vel actis iudiciali-
bus, nee transigere, pacisci, compromittere in arbitros,
deferrc aut referre iusiurandum, et generatim ea agere
pro quibus ius requirit mandatum speciale.
A proctor needs a special written commission, which is
called mandatum ad litcs. Before he has deposited this
mandate with the tribunal, he cannot be admitted by the
iooole
Original fro ni
UNIVERSITY OF WISCONSI
ii4 ECCLESIASTICAL PROCEDURE
judge. The mandate must be signed by the ma ad an s and
note thereof must be made at the bottom of the official
summons, from which fact it may be inferred that the
mandate must be issued by the tnandans before the sum-
mons, because after that proceeding the case has taken a
legal turn (res non amplius integra).
The mandate must mention the place where, and the
day, month and year when it was issued. If the mandans
is unable to write, this fact must be noted, and the pastor
or notary public of the ecclesiastical court or two wit-
nesses must sign the mandate in his stead. The docu-
ment by which a special mandate is issued to a proctor
must be placed among the judicial acts of the trial.
A special mandate is required for all cases, for the
text is general and therefore no cases or persons are
excepted.18 This is a very appropriate measure, because
if no special mandate were necessary, there might be
uncertainty as to the power of the mandatory and a loop-
hole left for the party to attack the sentence by pleading
incompetency of the proctor. Hence this special man-
date, although given ad lites, and perhaps for all cases
of a judiciary character, must define in clear terms the
power of the proctor and its extent.
This special mandate ad lites differs from the one
mentioned in can. 1662, which is also called a special
mandate, but not included in the one named in can. 1659,
unless expressly so determined and set down in writing.
This special mandate concerns: foregoing actions, in-
stances, and judicial acts; it may also concern transactions,
agreements, compromises on arbiters, giving and requiring
the oath of the other party, — all acts for which a special
mandate is necessary.
ia The commentators allowed exceptions for relatives and co-litigants;
Reiffenstuel, I, 38. n. 80 f.
§le
Original from
UNIVERSITY OF WISCONSIN
CANONS 1663-1665
"5
The counsel, too, must have a commission, similar to
the procuratorial mandate, either from the parties or from
the judge, before he can take up the defence; and the
judicial acts must take note of this commission.
■
removal of attorney and counsel
Can. 1663
Turn procurator turn advocatus possunt a iudice,
dato decreto, repelli sive ex officio sive ad instantiam
partis, iusta tamen de causa.
•
. Can. 1664
§ 1. Advocati et procurators possunt ab eo a quo
constitute sunt, removed, salva obligatione solvendi
honoraria ipsis debita; verum ut remotio effectum
sortiatur, necesse est ut ipsis intimetur, et, si lis iam
contestata fuerit, iudex et adversa pars certiores facti
sint de remotione.
§ 3. Lata definitlva sententia, ius et officium appel-
landi, si mandans non renuat, procurator! manet.
Can. 1665
§ 1. Vetatur uterque emere litem, aut sibi de im-
modico emolumento vcl rei litigiosae parte vindicata
pacisci.
§2. Quae si fecerint, nulla est pactio, et a iudice vel
ab Ordinario poterunt poena pecuniaria mulctari;
advocatus praeterea turn ab officio suspendi, turn
etiam, si recidivus sit, destitui et titulo privari.
jle
Original from
UNIVERSITY OF WISCONSI
-
■"■
116 ECCLESIASTICAL PROCEDURE
Can. 1666
Advocati ac procuratores qui ob dona aut pollicita-
tiones aut quamlibet aliam rationem suum ofncium
prodidcrint, ab officio repellantur, ett praeter
damnorum refectionem, mulcta pecuniaria aliisve
congruis pocnis plectantur.
The attorney as well as the counsel for the defence
may be rejected by the judge, who in that case must
issue a corresponding decree, either ex officio or upon
demand of the party.
However, a just cause is required for such action.
Such a cause would be the fact of relationship or suspi-
cion of conspiracy or inability discovered later.
The counsel as well as the procurator may be discharged
by those who appointed them, provided, of course, their
salaries have been paid or guaranteed. Besides, since a
mandate was given, the revocation must be intimated to
the proctor or counsel and also to the judge and the other
party, after the litis contestatio. After this stage it is
generally supposed that a just reason is required for
revocation because of the expenses already incurred and
of the good name of the attorney and counsel.14 No
reason, however, is required if the party who has ap-
pointed a proctor or counsel dies before the case has
taken a legal turn, i.e., before the judicial summons have
been issued.
After the definitive or final sentence the attorney is en-
titled and obliged to appeal the case if his client does not
object.
Attorney as well as counsel are forbidden to buy the
case or to make an agreement as to large profit or part
of the disputed object. Every such agreement is null and
14 Rdffensiuel, I, 38, n. 136.
oogle
k ,|rt " riginal from
UNIVERSITY OF WISCONSIN
CANON 1666
"7
void, and the transgressor may, besides, be fined by the
judge or Ordinary; the counsel may be suspended and, in
case of relapse, be removed and deprived of his title.
Counsels or attorneys who allow themselves to be
bribed by gifts or promises, or in any other way, thus
betraying their trust, must be removed, condemned to re-
pair the damage done, and fined by the court.
'le
Original from
UNIVERSITY OF WISCONSIN
■
pi
TITLE V
ACTIONS AND EXCEPTIONS
in general
Can. 1667
Quodlibet ius non solum actione munitur, nisi aliud
expresse cautum sit, sed etiam exceptione, quae semper
competit et est suapte natura perpetua.
Can. 1668
§ x. Qui ad rem sibi vindicandam, seu ad ius suum
in iudicio persequendum titulo agit iuris auctoritate
subnixo, actione dimicat quae petitoria dicitur.
§ a. Si vero rei possessionem vel iuris quasi-posscs-
sionem postulat, eius actio possessoria vocatur.
Can. 1669
§ 1. Actor pluribus simul actionibus, quae tamen
secum ipsae non confligant, sive de eadem re, sive de
diversis, reum convenire potest, si aditi tribunalis
competentiam non cgrediantur.
§ 2. Reus non prohibetur pluribus exceptionibus
etiam contrariis uti
Can. 1670
§ 1. Actor potest una instantia cumulare actiones
possessorias et petitorias, nisi spolii exceptio ex
adverso opponatur.
118
5 annL Originalfrom
• OO^lt UNIVERSITY OF WISCONSIN
CANONS 1667-1671
119
§ a. Pariter fas est reo convento in petitorio, actorem
recon venire in possessorio; ct viceversa, nisi res sit dc
spolio.
Can. 167 1
§ 1. Item fas est actori, antequam conclusum fuerit
in causa, ab institute iudicio petitorio regredi ad
possessorium adipiscendae vel recuperandae.
§ a. Imo ex iusta causa iudex ctiam post conclu-
sionem in causa, scd ante sentcntiam defmitivam, hunc
regressum pcrmittere potest.
§ 3. Iudicis est, attends partium allegationibus, aut
utramque quaestionem unica sententia definire, aut
prius uni, postea alteri satisfacere, prouti rnagis
expedire ipsi videatur ad celeriorem et pleniorem
iurium tuitionem.
What the Code sets forth in this title really forms part
of the legal proceedings, because, according to the struc-
ture of the Roman trial, the actio as well as the exceptio
were brought after the summons. However, they are
appropriately treated here because they are remedies
granted by law to redress grievances or injuries, and to
reply to these by the defendant. For every right may be
supported and sustained, not only by an action, but also
by an exception, unless the law expressly forbids the
latter.
Actio signifies the cause or legal demand of a right,
either corporeal or incorporeal, spiritual or temporal. In
Roman law it meant a certain prescribed form of words
derived directly from the law upon which the claim was
founded. To this form it was necessary to adhere strictly.
The parties having appeared before the praetor, the plain-
tiff stated his claim (tntentio) and asked leave to bring
the suit into court (actionem postulabat). The defend-
>ogle
Original from
UNIVERSITY OF WISCONSIN
iao ECCLESIASTICAL PROCEDURE
ant then cither denied his liability or put in a plea in
law (exceptto)} Such an exception or counter-charge
is also admitted in ecclesiastical courts. It is always
within the right of the defendant to put in this plea, which
is by its very nature perpetual. Thus although prescrip-
tion may eliminate penal action in criminal cases, yet the
right of exception always remains intact (" temporalia ad
agendum, perpetua sunt ad excipiendum").* This also
holds good concerning possessory claims, as shall be seen
under can. 1698.
There are two actions, especially in civil cases, which
are here taken over from former law sources : ■ the one
by which the plaintiff seeks to vindicate a thing in court
or a right founded, as he believes, on the authority of
law. This action is called petitory (actio petitoria). The
other by which the plaintiff claims possession or quasi-
possession of a thing (actio possessoria) . For in every
complete title to an object of right, either movable or
immovable, two things are necessary: the possession or
seisin, and the right or property, which in terms of old
English law was called iuris et seisinae coniunctio*
Possession or seisin may be severed from property,
although in common parlance the two terms are used
promiscuously. Possession is the retention of an object
in which bodily and mental occupation concur with the
law ("ret detentio corporis, animi, iuris adminiculo
suffulla "). I us here is taken, not in the subjective sense,
to designate the moral faculty of holding a thing, but
rather in the objective sense, to designate the law which
D
1 Cf r. Ramtay-Laaciani, Roman by the formula petitoria and by
Antiquities, 1901, p. 328.; the if'orsio.
fire l*eii actions were: soeramtnto. * S. C. EE. et RR.. March 8,
per judicis postulationtm, per con- 1898 (Colt, P. F., n. 1993)-
vicfionem, per HMMJ initetianam, s See X, II, ia.
per pignuris capHtmem; later the«e * Blackstone-Cooley, Comment.,
were auperaeded to a treat extent III, 176.
jle
k %\^ " rigirval from
UNIVERSITY OF WISCONSIN
CANONS 1667-1671
121
protects the possessor." Of course, where there is no
title at all, either at the beginning or in the course of
occupation, the ecclesiastical law (differing here from the
Roman law) never defends possession, but the auctoritas
iuris ceases.
The term quasi-possession in our Code indicates rights
which are not properly possessed, but are incorporeal, for
instance, the right of election. However, even in this case
a visible or manifest assertion is required, as the text in
the Decretals clearly proves.6 Hence also in holding an
immaterial right, a tangible proof or fact is necessary,
and therefore the definition given above is to the point.
Property is a right to some thing, especially a corporeal
object, by which the holder is empowered to dispose of
it at his pleasure, to the exclusion of others. Property
differs from possession in more than one way. Posses-
sion means the right of retaining a thing, whereas prop-
erty is the title by which one vindicates something as his
own. Again, property may be acquired by merely mental
action, whereas possession requires actual holding, etc.,
etc.T
It is evident that the causa proprietatis is more im-
portant, but also more difficult to prove, than the causa
possessions, which, even though called momentary or,
transient, is more palpable.
If a plaintiff thinks he has several cases, either con-
cerning the same object or different objects, he may bring
them to court together, provided, of course, the respec-
tive tribunal is competent in all and there is no conflict
between the different claims. On the other hand, the
S Santi-Leitner, II, ta, n. a.
a C. 3, X, II, ia ; the lower
el*rgy of Sutri (in Italy) claimed
the right of voting at the election of
the bishop, and had exercised this
right at the election of three bishops,
— which was a manifestation of the
title involved and was acknowledged
by the pope; see c. 16, X, IT, a.
T ReitTenstuel, II, 1a, n. 30 ft.
>gle
Original from
UNIVERSITY OF WISCONSI
122 ECCLESIASTICAL PROCEDURE
defendant is allowed to put in a counterplea to all the
cases brought against him. Thus an advowee may bring
suit for the right of presentation and the support he thinks
he is entitled to, if he was disturbed in his possession.
The mere fact of such a suit could be taken cognizance
of by a lay judge, but the ius patronatus or the right of
property cannot be decided by the lay judge, who therefore
lacks competency.8
The plaintiff may bring a possessory and a petitory
claim at the same time and before the same judge. On
the other hand, the defendant is allowed to oppose to the
petitory claim of the plaintiff his counterclaim of pos-
session, and conversely. This is called bulking, or cwmw-
latio causae possessionis cum causa proprietatis. For in-
stance, a pastor who has been removed for some reason,
claims salary due him. To obtain full justice he may
assert that he is still the lawful pastor and in possession
of the parish, although removed. The petitory claim
is the title to the pastorship, the possessory claim, the
actual holding of the parish. His rival may be able to
prove that N. is not the pastor, or that N. has never held
the legal title, These two conflicting claims may be
settled at the same trial. Nor is it useless to bulk both
claims, because the question may thus be more speedily/
settled. Besides, there is question of restitution. For the
plaintiff may be victorious as to the petitory claim, but
not as to the possessory claim, and in that case the reve-
nues are due to him from the time when the petitory claim
was settled, but not for the previous period.9
Bulking is not permitted in cases of disseisin (causae
spolii) because these require the return of the object vio-
P
BCc. 2, j, X, II, i; Santi-Leitner, II, 13; Santi-Lekrier, II, 11, a.
II, 12, a. 1a. 13 if-
9 Cc. 2, 3. 4. X, II, 12; c. r, X.
ioogle
£ * ^ ^ ,L» Original fro rn
UNIVERSITY OF WISCONSIN
CANONS 1667-1671
123
—
lently seized to the original possessor, or at least that
it be put in a safe place.
The law also allows the plaintiff to change the sequence
of his claims. Thus if he brought the petitory cause or
claim to property first, he may waive it for a time and
have the possessory right settled first. However, this may
concern only the right of obtaining or regaining posses-
sion, but not of retaining it, because he who claims pos-
session in law, is not supposed to be in possession. Be-
sides, this change is allowed only before the conclusio
causae, i.e., before all the proofs and depositions are
given and the parties have renounced the right to pro-
duce additional evidence.10
The judge himself may, for a just reason, permit this
change before the final sentence. Such a reason may be
the quicker settlement of the disputed case and the sav-
ing of expense.
The judge may also decide a twofold controversy in-
volving petitory and possessory claims by one sentence,
if the allegations were such as to comprehend the whole
case. Or he may first decide one claim and then the
other, if he regards such action as conducive to the quicker
and better defence of the rights at issue.
The Code now proceeds to consider various actions, or
rather remedies of law and counterpleas, which must be
settled before the final or definitive sentence can be ren-
dered, and which tend to secure a full adjustment as well
as security from damages and injuries while the case is
pending.
10 Cfr. c 36, X, II, M.
►ogle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER I
sequestration and inhibition
Can. 1672
§ 1. Qui ostenderit super aliqua re ab alio detenta
ius se habere sibique damnum imminere nisi res ipsa
custodienda tradatur, ius habet obtinendi a iudice
eiusdcm rei sequestrationem.
§ 2. In similibus rerum adiunctis obtinere potest ut
iuris exercitium alicui inhibeatur.
§3. Sequestratio rei et inhibit 10 exercitii iuris a
iudice decerni potest ex officio, instante praesertim
promotore iustitiae aut defensore vinculi, quoties
bonum publicum id postulare videatur.
Can. 1673
§ z. Ad crediti quo que securitatem sequestratio rei
admittitur, dummodo de creditoris iure liquido constet
et servata norma de qua in can. 1923, § 1.
§2. Sequestratio extenditur etiam ad res debitoris
quae depositi causa aut quolibet alio titulo apud alias
personas reperiantur.
■
Can. 1674
Sequestratio rei et suspensio exercitii iuris decerni
nullatenus possunt, si damnum quod timetur, possit
aliter reparari et idonea cautio de eo reparando
offeratur.
124
gle
l"~* -» v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1673-1675 135
Can. 1675
§1. Ad custodiam rei sequestra tioni subiectae
idonea persona, proponentibua partibus, a iudice
designetur, quae sequester dicitur; si partes inter se
dissentiant, iudex ex officio sequestrem deligat.
§ a. Sequester in re custodienda, curanda et
servanda non minorem diligentiam adhibere debet
quam suis adhibet rebus, eamque posteav cui iudex
decreverit, reddere tenetur cum omni causa.
§3. Iudex congruam decernat mercedem sequestri,
si earn pettt
A plaintiff, under the Roman law,1 sometimes requested
the praetor to issue an interdictum or summary order to
secure his rights by preventing anything from being done
to deteriorate or injure the object claimed. This, in
ecclesiastical language, is termed sequestration. It is a
writ issued by the judge to take a disputed object held
by any one, whether the plaintiff or the defendant, and
place it in the custody of a third party, called sequester,
in order to prevent the object from being damaged.
A kind of sequestration is that of the exercise of rights
otherwise acknowledged; thi3 is called inhibition. Thus
a beneficiary may be commanded by the ecclesiastical
judge to suspend the exercise of his rights; a husband,
the validity of whose marriage is disputed in court, may be
commanded to let the wife go to a place of security, or
a bride claimed by two rivals may be told to go to a
convent, until the question is settled.
Sequestration and inhibition (or injunction) may be
decreed by the judge ex officio whenever the public welfare
is at stake and the promoter or defender demand it. It
1 Cfr. Ramaty-Lanciani, I. c, p. property of Ihe defendint in con-
337; in English law it means taking tempi; BUckstoncCooley, III. 444-
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
126 ECCLESIASTICAL PROCEDURE
may also be decreed in case a creditor has a clear and
proved tide to the thing which requires security. And
in that case all the things which, the debtor has in his
custody as a deposit or pawn, or under another claim, may
be sequestered.
But neither sequestration nor inhibition may be decreed
if the danger of damage can be warded off otherwise and
bail is given to cover possible deterioration or damage.
The sequester may be proposed either by the parties to
the suit or by the judge if the parties cannot agree upon
a fit person. The sequester must take care of the things
entrusted to him as he would of his own belongings,
i.e., he must bestow ordinary (not extraordinary) care
on them and in the end restore them to those to whom
the judge awards them. The judge shall decide, at the
request of the sequester, what recompense is due him for
his trouble.
* ( iM\a\i* Original from
^ -OO^IL UNIVERSITY OF WISCONSIN
-
- .
-> •
■ '
CHAPTER II
novi operis nuntiatio and damnum infectum
Can. 1676
§ z. Qui ex aliquo novo operc damnum timet suae
rei obventurum, potest illud iudici nuntiare ut opus
interrumpatur, donee utriusque partis iura, iuclicis
sententia, definiantur.
§ 3. Is cui intimata fuerit prohibitio, continuo ab
opere cessare debet, sed, dummodo idonee caveat se in
pristinum omnia restituturum si absoluto iudicio victus
discesserit, poterit a iudice continuationem eiUsdem
impetrare.
§ 3. Nuntianti novum opus ad ius suum demon-
strandum duo menses praefiniuntur ; qui ex iusta et
necessaria causa a iudice, audita altera parte, prorogari
vel reduci poterunl
■
Can. 1677
Si vetus opus magna ex parte immutetur, idem ius
esto quod de novo opere can. 1676 constitutum est.
Can. 1678
Qui grave damnum rei suae imminere pertimescit ex
alieno acdificio quod ruinam minatur, ex arbore aut
ex alia re quacunque, actionem habet de damno infecto
ad obtinendam periculi remotionem, aut cautionem de
damno vel avertendo, vel compensando, si forte
cvenerit.
127
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
128 ECCLESIASTICAL PROCEDURE
Under the Roman law a citizen was obliged to give
notice of a new structure to the prefect of the city, who
could command it to be discontinued for good reasons.
This law, says a Decretal, was initiated or adopted by
the Church.1 Hence anyone who fears that a new struc-
ture may be prejudicial to his interests, either material
or spiritual (for instance, because it damages his prop-
erty or curtails his jurisdictional rights or revenues),
may denounce the same to the ecclesiastical judge and
demand a decree ordering the work to be discontinued
until the claims of both parties can be adjusted by a
judicial sentence.
The one who receives notice of such a prohibitory decree
must desist from the work begun. However, he may
ask to continue on condition that he give bail and restore
everything to the status quo if he should lose the trial.
The one who objects to a new structure has two months
to prove his claim; but this term may, at the demand
of the other party, be either prolonged or shortened by
the judge. The same rule applies to substantial changes
in an old structure.*
Those who are afraid that a decaying edifice may cause
them damage, may institute an action de damno infecto,
in order to have the danger removed or to obtain security
against possible damage. This strictly belongs to the
competency of the civil court.
l Cfr. cc. i. a, X. V. %*.
aS. C. EE. et RR., Sept. 31, 1838.
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CHAPTER III
actions of " nullitas actorum "
Can. 1679
Si actus aut contractus sit ipso iure nullus, datur ei,
cuius interest, actio ad obtinendam a iudice declara-
tionem nullitatis.
Can. 1680
§ 1. Nullitas actus tunc tan turn habetur, cum in eo
deficiunt quae actum ipsum essentialiter constituunt,
aut sollemnia seu conditiones desiderantur a sacris
canonibus requisitae sub poena nullitatis.
§ 2. Nullitas alicuius actus non importat nullitatem
actorum qui praecedunt aut subsequuntur et ab actu
non dependent
Can. 1681
Qui actum posuit nullitatis vitio infectum, tenetur
de damnis et expensis erga partem laesam.
Can. 1682
Nullitas actus a iudice declarari non potest ex
officio, nisi aut publice id intersit, aut agatur de
pauperibus vel de minoribus aliisve qui minorum iure
censentur.
Can. 1683
Iudex inferior de confirmation^ a Romano Pontifice
actui vel instrumento adiecta, videre non potest, nisi
Apostolicae Sedis praecesserit mandatum.
129
ogle
Original from
UNIVERSITY OF WISCONSI
130 ECCLESIASTICAL PROCEDURE
An act is called null and void if its essential constitu-
ents, or any of the formalities or requisites prescribed
by law under penalty of nullity, are wanting. Thus or-
dination performed under physical compulsion is null and
void.1 A marriage contracted under the influence of
grave fear (can. 1088) is null and void. A religious
profession made under similar circumstances is invalid.8
In marriage the solemnities or conditions are manifest,
because a marriage contracted without the prescribed form
is null and void.8 A division of parishes is void if made
without canonical reason,*
However, from the fact that an act is null and void,
it by no means follows that the preceding or following
acts are also null and void, unless indeed they depend
upon the void act itself. Thus in contracts, whatever de-
pends on the agreement itself, must necessarily be tainted
with the defects inherent therein. Independent acts, as
also records and minutes, are valid if not essentially con-
nected with the invalid act. For instance, borrowing
money in view of a division of a parish would not be in-
valid, because not necessarily connected with the act of
division.
If one of the interested parties (not a third person)
wishes to bring suit against an act he considers null, he
may ask the judge to declare it null and void. Take the
example of a religious profession which is claimed to be
null and void on account of fear. In that case the judge
would have to demand proofs ; for a mere assertion can-
not be accepted before the law.
Under can. 1682, the judge cannot ex officio declare the
nullity of an act, unless the public welfare is at stake,
a
1 Can. 103, I 1. 8 Can. 1096 f.
2 Can. 573. «Can. 14*8.
Q
"■
>Ie
j ^ Original from
UNIVERSITY OF WISCONSIN
-
CANONS 1675^1683 131
and in case of minors. The public welfare is generally
at stake in matrimonial cases, because marriage is a
requisite of public order. The same is true of ordinations.
The judge may proceed ex officio in case of minors
because these are under the special tutelage of the Church.
Therefore, those who have not yet completed the age of
twenty-one, as well as all ecclesiastical corporations and
noncorporate entities,8 enjoy the benefit of this law.
No judge who has common sense and a conscience will
pronounce an act null, unless he has good reasons for
doing so, for can. 1681 rules that he who acts invalidly
is bound to indemnify the party injured by his invalid
act.
It may be useful a to add that an act performed with
deliberation (i.e., every human act), must be considered
valid until the contrary is proved or is at least notorious.
The nullity of an act can be easily proved if a substantial
formality has been omitted, or if the act contravenes a
prohibitory statute or law, or if it exceeds the limits of a
faculty or mandate, or the wording of a rescript. Other-
wise an act, even if doubtful, must be regarded as valid.
If the judge is not acting in the capacity of ordinary
or independent judge, but as delegate or inferior judge,
the rule holds: "Actus reguXariter tribuitur ordinanti,
non exequenti." This applies especially if the Roman
Pontiff confirms an act or a document. The act of con-
firmation may concern an act of the judge (for instance,
his sentence), a privilege, a contract (for instance, aliena-
tion), a statute or decree of appointment. If an inferior
judge receives such a ratification from the Pope or from
one of the S. Congregations or Tribunals, he must take
cognizance of it, because the order of jurisdiction de-
I Cm. 100, I 3. Axioraa 13. *.v. "Actua"; cfr. can.
• Cfr. Barbota, Tnctttui Vurii, 1625, | 1.
oogle
% ,] , Original fro m
UNIVERSITY OF WISCONSIN
■
pi
132 ECCLESIASTICAL PROCEDURE
mands that the authority of the inferior be silent when
the superior places an act under his special protection.
Hence the clause is sometimes added in rescripts: " sublata
cuilibet aliter iudicandi at que interpretandi faeultate."
Yet, since the Roman Pontiff does not claim infallibility
in matters of an individual nature and of a judiciary char-
acter, and since fraud may have been committed by the
petitioner, a means is needed to recognize even apostolic
letters. This is expressed in our text, can. 1683 as fol-
lows: "nisi Apostoiicae Sedis praecesserit mandatutn.'1
It means that the judge, if he has a strong suspicion of
fraud, can demand the aperitio oris, in order to be enabled
to take cognizance of the facts and the proofs which
elicited the confirmation. Thus are safeguarded on the
one side the authority of the supreme judge and, on the
other, the administration of justice.
oogle
, v ,|r> Original fro ni
UNIVERSITY OF WISCONSIN
CHAPTER IV
RESCISSORY ACTIONS AND RESTITUTION IN INTEGRUM
These arc two actions, of which one is called ordinary,
the other extraordinary, because the latter supposes, as
it were, that all ordinary means for obtaining redress
have been exhausted. Hence it is granted (can. 1687)
only when ordinary means prove insufficient.
rescissory action
Can. 1684
§ 1. Si quis motus metu gravi iniuste incusso, vel
dolo circumventus actum posuerit vel contractum
inierit qui ipso iure non sit nullus, potent, metu vel
dolo probato, obtinere actus vel contractus rescis-
Bionem actione quae vocatur rescissoria.
§ 2. Eadem actione intra biennium uti potest, qui
gravem ex contractu laesionem ultra dimidium ex
errore passus est.
Can. 1685
Institui haec actio potest:
i.° Contra earn qui metum intulit aut dolum
patravit, quamvis ipse non in suum, sed in alterius
commodum talia peregerit;
a.0 Contra quemlibet malae fidei et etiam bonae fidei
possessore™, qui res metu vel dolo extortas possidet,
salvo iure regressus contra quemlibet usque ad ipsum
mctus vel doli auctorem.
133
le
Original from
UNIVERSITY OF WISCONSIN
134 ECCLESIASTICAL PROCEDURE
Can. 1686
Si is qui metum intulit aut dolum patravit, urgeat
actus vel contractus exsecutionem, parti laesae seu
deceptae competit exceptio metus vel doli.
Broadly speaking, a rescissory action is one brought to
avoid an obligation or deed which follows an act or con-
tract. Here the term is specially applied to an action
based on fear or deceit (metus vel dolus). Canon 1684
says that one who acted under the influence of grave fear,
unjustly inflicted, or who was deceived, is entitled to de-
mand nullification of the act thus committed or the con-
tract made. In order to understand this law it must be
remembered that even grave fear does not render an act
simply involuntary, but only secundum quid, unless the
law makes a special exception, as, for instance, in favor of
freedom of religious profession and marriage.1 The con-
ditions of fear have been explained elsewhere.1 But a
judge cannot proceed unless he has proofs as to the ex-
istence and degree of fear, — which proofs, as stated more
than once, must be solid.
This actio ex metu vel dolo is also at the disposal of
one who has by mistake sustained a loss of more than half
of what was stipulated in a contract. In that case what
is required is rather restitutio in integrum. However, the
legislator appears to compare error to dolus, and, besides,
the time is here split into half, so that this action may
be brought within two years from the date when one
obtained knowledge of the damage sustained.
Rescissory action may be brought, not only against the
one who has threatened fear or committed deceit, but also
against the one in whose behalf the threat was made. Be-
l See can. 103, |a; c*n. 37*; can. * Ctr. thU Commentary, Vol. II,
1087. P. *9 *•
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANONS 1687-1688
135
sides, it may be brought against any one who acted in bad
faith or who, though in good faith, retains goods extorted
by fear or deceit. However a possessor bonae fidei is
entitled to retort the action upon the one who exercised
the fear or deceit. Finally, if he who inspired fear or
employed deceit should insist upon fulfillment of the con-
tract or execution of the deed, the party wlio has been in-
jured is entitled to put in a counterplea of fear or deceit
(exceptio tnetus vel lioli).
RESTITUTION IN INTEGRUM
Can. 1687
§ I. Minoribus vel minorum iure fruentibus graviter
laesis eorumque heredibus et successoribus, ad
laesionem reparandam ex negotio seu actu valido
rescindibili, praeter alia ordinaria remedia, suppetit
remedium extraordinarium restitutionis in integrum.
§ 3. Hoc beneficium maioribus quoque conceditur
quos deficit rescissoria actio aut aliud ordinarium
remedium, dummodo iustam subcase causam et
laesionem sibi imputandam non esse probaverint.
Can. 1688
§ x. Restitutio in integrum peti debet ab ordinario
iudice, qui competens est respectu illius, contra quem
petitur, intra quadriennium ab adepts maioritate
computandum, si agatur de minoribus, a die laesionis
factae et cessati impedimenti, si de maioribus aut
personis moralibus.
§ a. Minoribus vel minorum iure fruentibus resti-
tutio concedi potest a iudice etiam ex officio, audito vel
instante promotore iustitiae.
'oogle
Original fro ni
UNIVERSITY OF WISCONSI
Q
136 ECCLESIASTICAL PROCEDUPE
Can. 1687-1689
Restitutio in integrum id efficit ut omnia rcvoccntur
in pristinum, idcst restituantur in statum quo erant
ante laesionem, salvia iuribus quae alii, bona fide, ante
pctitam restitutionem quaesiverint
Restitutio in integrum is an extraordinary remedy of
the law, by which a party grievously damaged or injured,
is restored by the authority of the judge to his original
condition (in statum quo ante laesionem).* The persons
who are principally benefitted by this legal remedy are
minors, and those who in law enjoy the privilege of
minors, viz., ecclesiastical corporations and non-corporate
juridical entities (pious foundations, religious), their
heirs and successors.
1 The object of this remedy is to repair damage sustained
by reason of a rescindiblc deed or act, even though this
deed or act may in itself have been valid, and therefore
obligatory. This return or restitution to the original con-
dition or status (ante petitam restitutionem) restores all
the rights acquired bona fide before the restitution was
asked. Alienation furnishes an example. An administra-
tor has alienated a piece of church property by selling it
to a layman, who paid the price demanded. The promotor
iustitiae or fiscal attorney perceives that the bargain was
detrimental to the church or community and asks the
ecclesiastical court for a restitutio in integrum. What
must be done in that case? The administrator must
restore the price paid for the church property and, be-
sides, refund whatever expenses the layman may have
incurred for improvements, etc.4 Whether the layman
t Cfr. the commentator! on X, 4 C. 11, X, HI, 13-
X, 41 especially Bee Vim and ReiSen-
rtuel
^
I , Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1689
137
has to restore the profit or interest received from the
property after the expenses are repaid, is a controverted
question, and therefore in the court o£ conscience the
layman could hardly be held to restitution.
Attention may be drawn to the term: "ante petitam
restitutionetn." For it is not required that restitution
be already granted, because if it was asked for, the bona
fides of the possessor could hardly be sustained.
Can. 1688 rules that restitution must be asked from the
judge who is competent with regard to the one against
whom the injunction is asked, whether he be plaintiff or
defendant.
In regard to the time within which the demand for an
injunction is to be made, the text distinguishes, because,
as stated under can. 1687, § 2, not only minors are granted
the benefit of restitution, but also those who cannot avail
themselves of rescissory action or other remedies under
the law, provided they can prove that they have a just
cause and have sustained injury or damage beyond their
own responsibility or culpability ; for instance, if one was
lawfully absent, or detained by hostile forces, or deceived
through ignorance.5 Minors in the proper sense, i.e.,
those who have not yet completed the twenty-first year,
must put in the demand for restitution within four years
after they have completed the aforesaid age. This period
of four years is here taken in the sense of tetnpus con-
tinuum, reckoning ferial days as well as days of absence,
in other words, it runs continually, regardless of any
obstacle that may suspend the use of time granted.
Those who are of age and all juridical persons have
four years' time to demand an injunction, but this term
runs from the moment the injury or damage was done
and from the cessation of the impediment that prevented
B Rdffenatuel. I, 41. n. so ff.
GoogI
gle
Original from
UNIVERSITY OF WISCONSIN
Q
138 ECCLESIASTICAL PROCEDURE
»
them from demanding restitution. By "dies laesionis
factae " must certainly be understood not merely the time
when the damage was done, but when it was realized 01
perceived.6 This interpretation seems evident from the
apposition : " cessati impediment" for one cannot realize
an obstacle (for instance, absence or detention), if he
does not realize or perceive the damage done.
Finally, the Code permits the judge to grant to minors
and to those who enjoy the privileges of minors, the
benefit of restitution also ex officio, upon the advice or
demand of the promotor iustitice. This may be favor-
able to religious, who in law are compared to minors;
but they cannot be said to belong to those under age.
When does the four years' term begin with them ? Either
at the same time as for those who are of age, or accord-
ing to the decision of the judge.
e Engel I, 41, XL xi.
, ~ ..,1 Original from
^..OOglL UNIVERSITY OF WISCONSIN
■
CHAPTER V
counter-pleas (actiones reconvention ales )
Can. 1690
§ 1. Actio quam reus coram cod cm iudicc in eodetn
iudicio instituit contra actorem ad submovendam vel
minuendam eius petitionem, dicitur rcconventio.
§ 2. Rcconventio reconventionis non admittitur.
-
-
Can. 1691
Actio reconventionalis locum habere potest in
omnibus causis contentiosis, exceptis causis spolii;
in criminalibus vero non admittitur, nisi ad normam
can. 2218, § 3.
Can. 1692
Proponenda est iudici coram quo actio principalis
instituta est, licet ad unam causam dumtaxat delegate
vel alioquin incompetenti, nisi sit absolute incom-
petens.
An action by which the defendant endeavors to stop,
or at least to curtail, the plea or demand of the plaintiff,
is called counter-charge or counter-plea if made before
the same judge and during the same trial. Such a coun-
ter-plea cannot be upset by another counter-plea of the
plaintiff; the reason probably is not to prolong the trial
unduly.
A counter-plea is permitted only in civil matters, and
139
§le
Original from
UNIVERSITY OF WISCONSIN
140
ECCLESIASTICAL PROCEDURE
in these to the whole extent, except in cases of disseissin.
In criminal matters a counter-plea is permitted only where
mutual injuries are charged, according to can. 2218.
The counter-plea is to be made before the judge before
whom the main suit was brought, even though he may
be delegated for one special case only and may not be fully
competent, provided, however, he be at least relatively
competent, i.e., either by reason of the matter involved,
or of the person.
N
■
;Ic
UNIVERSITY OF WISCONSIN
CHAPTER VI
POSSESSORY ACTIONS
Can. 1693
Qui ad possessionem alicuius rei adipiscendam, vel
ad alicuius iuris exercitium obtinendum munitur titulo
legitime*, petere potest, ut in rei possessionem vel iuris
exercitium ixnmittatur.
Can. 1694
Non solum possessio, Bed etiam simplex detentio
pracstat, ad normam canonum qui sequuntur, actionem
vel exceptionem possessoriam.
Can. 1695
§ 1. Qui annum integrum in possessione ret vel in
quasi-possessione iuris manserit, si molestiam patiatur
quominus suam possessionem vel quasi-possessionem
retineat, habet actionem retinendae possessionis.
1
Can. 1696
§ 1. Etiam qui vi, clam vel precario possidet, actione
retinendae possessionis uti potest adversus quemlibet
deturbatorem : non autem contra personam a qua ipse
rem vi vel clam sunipuit aut precario acccpit.
§2. In causis quae ad bonum publicum spectant,
iustitiae promotori ius est opponendi vitium posses-
sionis adversus eum qui vi, clam vel precario possidet.
Hi
ibyC 'Ic
Original from
UNIVERSITY OF WISCONSI
■
pi
142 ECCLESIASTICAL PROCEDURE
Can. 1697
§ 1. Si inter duos controversia oriatur uter eorum
possldeat, ille in possessione praeferendus eft qui intra
annum frequentiores et potiores possessionis actus
exercuit.
§2. In dubio iudcx possessionem pro indiviso
utrique parti attribuat.
§3. Si rei vel iuris indoles aut contentionum et
rixarum periculum non patiantur ut litigantibus pro
indiviso posses sio interim attribuatur, iudex rem apud
sequestrem deponi, aut iuris quasi-possessioncm sus-
pend! iubeat usque ad iudicii petitorii exitum.
Can. 1698
§ 1. Qui vi aut clam quoquo modo a possessione rei
vel quasi-possessione iuris deiectus est, adversus
quemlibet spolii auctorem vel rei detentorem habet
actionem recuperandae possessionis vel de spolio et
spolii exceptionem.
§a. Haec actio non admittitur praeterlapso anno
postquam spolium passus rei notitiam habuit; excep-
tion contra, perpetua est.
Can. 1699
§ 1. Spoliatus adversus spoliantem excipiens et pro-
bans spolium, non tenetur respondere, nisi prius fuerit
in suam possessionem restitutus.
§2. Spoliatus ut in possessionem restitutatur, nil
aliud probare debet, nisi spoliationem ipsam.
§ 3. Sed si in restitutione rei vel exercitii iuris ali-
quod occurrat periculum (ex. gr., saevitiarum, cum-
vir contra uxorem postulat* restitutionem coniugalis
( *r\nnl*> Original from
i X^OOgK. . UNIVERSITY OF WISCONSIN
CANONS 1693-1700
143
consortii), iudex, ad instant iam partis vel promotoris
iustitiac, pro diversis pcrsonarum causarumve adiunc-
tis dcccrnat aut rcstitutioncm suspcndi, aut rem vel
personam apud sequestrem custodiri, donee causa
petitorio iudicio definiatur.
Can. 1700
Iudicia possessoria absolvenda sunt, citata dum-
taxat adversa parte in iudiciis retinendae vel recuper-
andae; citatis vero omnibus iis quorum interest, in
iudiciis adipiscendae.
Possession, as distinguished from the right of prop-
erty, is the holding of a thing by the concurrent operation
of body, mind, and law. Hence either a real or fictitious l
apprehension of the thing itself, or at least the aid of a
law or statute, is necessary for possession. Possession
presupposes a right, i.e., a just cause for possessing. But
one may claim possession without reference to the title
upon which it is based. It is this that constitutes what is
known as actio possessoria.
If an object is claimed by one who is not yet in pos-
session thereof, but thinks he is entitled to it, either by a
fictitious or a statutory title, we have what is called actio
ret adipiscendae.
Our text appropriately adds : " or to obtain the exercise
of certain rights," for instance, that of election or pres-
entation ; and this is called quasi-possessio*
In order to justify the act of quasi-possession three
things are said to be required : (a) the exercise of the
right through certain acts indicative of the same; (b) the
1 Fictitious it the apprehension
which by a fiction of law if con-
sidered equivalent to real possession,
for instance, the delivery of a docu-
ment or a key.
aC. 3. X, II, ia.
oogle
Original fro ni
UNIVERSITY OF WISCONSI
144 ECCLESIASTICAL PROCEDURE
knowledge and forbearance of the superior or those who
might otherwise claim that right; (c) the intention of
the one who exercises the right to claim it as his own •
However, it must be added that it appears unjustifiable
to demand an exercise of a right {actus illius iuris) in
order to insure the acquisition thereof, for instance, the
right of presentation. This demand seems to be based
upon a confusion of exercise with prescription. Electors
may claim the right of voting by belonging lawfully to a
chapter. Therefore the titulus legitimus must be sought
in the fictitious or legal title which conveys the right to
possession.
But not only the possession, but also the detention of
an object or right entitles the detainer to a possessory
action or exception. The one who wishes to possess the
thing or right he claims, is put into possession, the de-
tainer is detained in its possession. The plaintiff brings
suit before the judge to obtain or acquire possession of
the thing or right, and the judge issues an interdict or
decree which secures possession to the claimant,4 at least
ad interim.
One who is in possession of a thing or right, — for in-
stance, a beneficiary or owner of church property, — may
suffer molestation from another. If the holder has been
in possession for one full year, he may ask the judge
to issue a decree " uti possidetis " or " utrobi " for either
immovable or movable property. This writ has the same
effect as an actio retinendae possessions. But it must
be brought within one year from the beginning of the
disturbance, and against the disturber, so that he may
stop the vexation.
D
. S Reiffenituel, II, ia, n. 151. legatcmm, mttrdictun possessorium,
4 There are five inttrdicti adipis- interdictum stctorium, interdictum
cendae pouessioni*: inttrdictnm Solvitnum; SantM-citncr, II, I*, n.
Quorum bonorum, interdictum quod
>Ie
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1700 145
An actio retinendae possessionis may also be brought
by one who forcibly, stealthily, or precariously (i.e., by
begging), possesses a thing against the disturber, but not
against the person from whom he has taken the thing in
the above-named manner. This privilege was not granted
formerly as an action proper, but was allowed in cases
of violence or stealthy or beggarly possession. However,
the legislator permits this action in order to avoid other
acts of violence and fraud; but he also empowers the
promoter iustitiae to take exception or oppose the crime
of violent, stealthy, or beggarly possession against a pos-
sessor, if the public welfare demands such action.
If a controversy arises which of two possessors actually
holds possession, that one is to be preferred who has ex-
ercised more frequent and conspicuous acts, for instance,
of administration, or in acquiring a servitude or right of
way.* If the judge is still in doubt to whom to adjudge
the disputed property, he may grant it to both competitors
pro indiviso, i.e., to each one full possession indivisibly.
If this is infeasible on account of quarrels- or contentions,
he may command the litigants to deposit the disputed
object with a sequester, and suspend quasi-possession until
the petitory cause is settled.
A third action is that of recuperandae, i.e., having the
possession or quasi-possession of an object adjudged to
the one from whom it was forcibly or stealthily taken.
To this corresponds the edictum " unde v\" of the judge
against the author of disseissin or detainer of an object
But the latter may also put in a counter-charge of disseis-
sin. The action proper may not be accepted after the
lapse of one year, to be reckoned from the moment one
has become aware of the disseissin. But the exceptio or
counter-plea is perpetual, Le., exception can be brought
• Ce. 3. 9. *» nf 19.
■"■
jfe
l ' - ^ Krt\ , Original from
UNIVERSITY OF WISCONSIN
■
146 ECCLESIASTICAL PROCEDURE
against it at any time. The spoliatus or disseissined, who
puts in the counter-charge, has only- to prove the fact of
disseissin and is not obliged to answer any questions until
he has been put in possession, and to obtain that he has
only to prove the fact of possession.
Sometimes the restitution of possession or quasi-pos-
session may be dangerous. Thus if a woman (supposed
wife) or a girl engaged to one man and claimed by an-
other would have to be delivered to the so-called husband
or bridegroom there might be danger of maltreatment*
In this case the judge shall suspend restitution or decide
that the person or object be confided to a sequester until
the petitory cause is settled. Thus he may decide that the
woman be kept in custody by her relatives, or that the girl
claimed by two rivals go to a convent until the claims are
definitively adjudged.
Possessory actions which are retinendae and recuper*
andae must be settled by summoning the adversary, but
actions called adipiscendae require that all interested
parties be cited, because then more proofs are demanded,
and proofs are not so easily adduced.
• Cc 8, 3, X, II, 13; c. 14. X, II, ip; c. 14. X, IV, 1.
►ogle
f* ^ v .J,., Original from
UNIVERSITY OF WISCONSIN
CHAPTER VII
EXTINGUISHMENT OF ACTIONS
Can. 1701
■
In contcntiosis actioncs turn realcs turn personales
exstinguuntur prae script! one ad normam can. 1508-
1512; actioncs autem de statu personarum nunquam
exstinguuntur.
Can. 1702
Omnia criminalis actio perimitur morte ret, con-
donatione legitimae potestatis, ct lapsu temporis utilis
ad actionem criminalem proponendam.
-
-
Can. 1703
Firmo praeacripto can. 1555, § 1 de delictis Sacrac
Congregation! S. Officii reaervatis, tempus utile ad
actionem criminalem proponendam est trienniumv nisi
agatur:
i.° De actione iniuriarutn, quae uno anno perimitur;
a.0 De actione ob delicta qualificata contra VI et
VII divinum praeceptum, quae quinquennio perimitur;
3-c De actionibus ob simoniam vel homicidium,
contra quae actio criminalis decennio perdurat.
Can. 1704
Sublata per praescriptionem actione criminal! :
i.° Non est hoc ipso sublata actio content iosa, forte
ex delicto orta, ad damna sarcienda;
147
oogle
Original from
UNIVERSITY OF WI5CGNSI
■
148 ECCLESIASTICAL PROCEDURE
3.0 Ordinarius rcmediis can. 2222, §2 statutis uti
adhuc potest.
Can. 1701-1705
§ 1. Praescriptio in contcntiosis currit ex quo actio
primum potuit iure proponi; in criminalibus, a die
patrati delicti.
§ 2. Si delictum habeat tractuxn, ut vocant, suc-
cessivum, non currit praescriptio, nisi a die qua delicti
tractus cessaverit.
§ 3. In delicto habituali vel continuato praescriptio
non decurrit nisi post ultimum actum ; et conventus ob
aliquem criminosum actum non praescriptum, tenetur
de antiquioribus, qui cum eodem actu connectuntur,
etiamsi singulatim sumpti ob praescriptionem ex-
cluderentur.
Real as well as personal actions in civil cases are ex-
tinguished by prescription, as set forth under can. 1508-
15 12. But actions concerning the status of persons are
never extinguished. An action is a demand of one's
right, and a real action is one inherent in the thing,
which it follows everywhere (actio in rem or vindicatio
ret). .A personal action (actio in personam) is directly
aimed at a person by reason either of a contract or a crime.
Although an object may be claimed, yet only the person
who contracted or perpetrated a crime is responsible.1
An example is stated in can. 1534 concerning alienation,
where real action is permitted in case of an alienation
that is null and void by law ; and personal action in case
of alienation lacking the formalities required by law.
The text adds : ** actiones autem de statu personarum
-
<
l RcifTemtucl, II, j, n* n f. Stimson's Law Dictionary, s. v.
The English terminology waveri; see "Actio" Action.
Io< fcgle
v ,|Y> Original from
UNIVERSITY OF WISCONSIN
CANONS 1701-1705 149
nunquam exstinguuntur." The status of men in Roman
law • was twofold : freedom and slavery. The Canon
Law recognized a threefold status : that of virgines, con-
tinents, and conjugate9 From this wc may surmise
that personal status here means walk of life, as we say
the clerical state, the lay state, the religious state, the
married state. Now, then, an action may always be
brought by one living in a state which he has good rea-
son to believe was forced upon him or which he thinks
he did not enter in a lawful manner. Thus, for instance,
a cleric may bring action to be released from the clerical
state and a married man may attack the validity of hi9
marriage. The reason for this is that the state of any
person interests not only that person himself, but society
as a whole. Hence, too, no transactions are allowed
concerning the personal state.*
A criminal action is quashed by the death of the culprit,
by his condemnation on the part of lawful authority, or
by the lapse of an equitable period of time, granted by
law for bringing a criminal suit The time is determined
in can. 1703, which says that a criminal suit can be
brought within three years. But this rule is liable to
some exceptions, namely:
(a) All cases belonging to the Holy Office, and which
this S. Congregation takes cognizance of itself or through
inferior tribunals, according to can. 1555, § 1.
(b) Actions against iniuriae are prescribed after one
year. Iniuriae are offences of a contumelious character
against the honor and respect due to one's fellowmen.
They may be either verbal or real, i.e., committed by
word of mouth or by acts which are offensive, for in-
stance, spitting in one's face or throwing mud. They
I S« Dig. I, s, it statu homiuum. * Wenu, I c, V, a. 41.
• Rciffcnitucl, I, I, 11. 149.
r Google
k ,1,., Original from
UNIVERSITY OF WISCONSIN
150 ECCLESIASTICAL PROCEDURE
may also amount to defamation or slander and affect a
man's calling B or official standing.
(c) Actions arising from qualified crimes against the
sixth and seventh commandments of God are quashed
after five years.
The Code does not state which delicto of those named
are qualificata. In the source • from which our text has
undoubtedly been taken, peculatus (embezzlement)
stands for the seventh commandment and delicta carnis
for the sixth. One might be tempted to identify a
qualified crime with one that is usually called indictable;
yet the decree in question mentions special classes which
belong hither: raptus, stuprum per vim Malum, adul-
terium cum incestu coniunctum, which, it says, require
a prescription of twenty years. Hence it may be that
these are the qualified crimes, which, according to the
Code, require only five years, whilst all other crimes
against the two commandments mentioned are actionable
only within the space of three years, according to the gen-
eral rule. This interpretation is certainly acceptable, al-
though it spells a mitigation of the former practice.
(d) Criminal actions based on simony and homicide
are not admitted after the lapse of ten years. Note, how-
ever, that only criminal actions in the strict sense, i.e.,
such as directly aim at the punishment of the culprit
and the satisfaction due to the public order, cease after
the lapse of those various terms.
Civil actions brought in order to obtain indemnity or
damages arising from a crime are not subject to prescrip-
tion (can. 1704) ; for the main reason for admitting
prescription against criminal action is the difficulty of
-
D Sec Kenny, A Selection of Cases a 5. C. EE. et RR., March 8,
Illustrative of the English Law of 1898 {Coll. P. F., n. 199a).
Tort, 1 9041 P- a8o.
D
I Original from
J8ie UNIVERSITY OF WISCONSIN |
CANONS 1701-1705 151
properly proving the crime and defending the accused
after a long period of time. This difficulty might prove
fatal to the public authority if it condemned one not
guilty of crime. Besides, criminal action has another
object, viz., to repair scandal and to give satisfaction
for a violation of the public order. This, too, seems
no longer required for the benefit of society after
the lapse of a considerable time.7 The case is different
with civil action, which is a more or less private affair
depending upon the good pleasure of individuals. Hence
one who has suffered from a crime may always bring a
damage suit, though not a criminal action, against the crim-
inal. The clergy have other remedies which the Ordinary
may employ, as stated in can. 2222, §2, such as for-
bidding the reception of higher orders, suspension ex
infortnata conscicntia, etc.
A more important question is the starting point from
which the term of prescription may be reckoned. Can.
1705 answers this question first as to civil actions, the
prescription of which begins to run from the moment
the law permits action to be brought. In order to com-
plete what was merely adverted to under can. 150&-1512,
something may be added here concerning prescription.8
Prescription broadly signifies a legitimate means of
acquiring a right or ridding oneself of an obligation by
possession during the time and in the manner laid down
by law. Here it means particularly the quashing of civil
T Wernr, /. c, V, n. 768. Note, England or in the United States to
however, the passage in Kenny- the crime of murder;" instances
Webb, Outlines of Criminal Law, are given where crimes were prose-
1907, P- 382: " Statutes of limita- cuted after 30 and 35 years,
tioni (prescription) which bar the 8 Cfr. the commentators on lib.
prosecution for certain crimes under II. tit. 26 de praescript.: Slater-
certain circumstances, after speci- Martin, A Manual of Moral
fied periods of time have elapsed, Theology, 1908, Vol. I, p. 37& *•
have never been applied either in
"■
gte
f** ^ •* iL» Original fro ni
UNIVERSITY OF WISCONSIN
I5a ECCLESIASTICAL PROCEDURE
action by the opposing term allowed by law. Thus a
claim may become void if the creditor allows the term
to expire before going to court. Our Code admits pre-
scription according to the laws of different countries,
but adds that the canons must be observed. Hence if
the civil law should admit prescription in things ex-
cluded by the ecclesiastical law, or lay down a shorter
time than the law of the Church, the civil law cannot
be applied.
{This premised, four conditions are necessary to render
prescription lawful : prescribable matter, good faith, title,
and continued possession.
(a) The matter which cannot be prescribed, according
to the law of the Church, is determined by can. 1509.
(b) Good faith (bona fidvs) is required, because the
one who holds a thing must be persuaded that he and
none other is the owner thereof.9 This is the aninti
possessio which cannot coexist with the conviction that
the thing belongs to another. Ecclesiastical law10 re-
quires this persuasion, not only at the beginning, but as
long as the period of prescription lasts.
But what if there is a doubt as to whether one has
the right to the object? If this doubt is positive (not a
mere scruple) and occurs at the beginning, the possessor
has to relinquish the object, or at least investigate whether
the other has a better title. If the doubt arises in the
course of prescription, regula juris 65 in 6° may be
applied : " Melior est conditio possidentis" at least until
a counter-plea has been made and adjudged.
What if a prelate or administrator were under the
wrong impression that he was allowed to alienate church
property without observing the required formalities? In
• Cfr. c. a. X, II, 26; Engel, n, 10 See cc. 5, 20, X, II, a«.
36, a. ij.
* j , Originalfrom
Googl
c
UNIVERSITY OF WISCONSIN
CANONS 1701-1705
*53
N
this case there would be an error in law (error iuris),
provided, of course, the law is dear and certain, and
prescription would hardly be admissible because igno-
rance of the law cannot be effectively pleaded, and it is
this ignorance of the law that proves hurtful, because
who errs in regard to the law is not supposed to be in
good faith.11
The authors solve another practical case : If a prelate
of a church with a chapter is in bad faith concerning
property, and nevertheless holds it; is the chapter able
to prescribe? The answer is that the mala fides of the
prelate, who is the head of the chapter, renders prescrip-
tion invalid, so that the chapter cannot lawfully prescribe
the property thus held.12
This principle is similar to that applied to heirs or
successors in property held in bad faith by their prede-
cessors ; according to the Regula Iuris 46 in 6° the suc-
cessor enters upon the rights and property with the same
right as the predecessor.18 However this may be, to us
it seems rather queer that good faith should be denied
to the successor if he has no inkling of bad faith on the
part of his predecessor. Here the civil law may certainly
be applied. Of course, prescription runs only from the
moment of good faith.
Bona fides is also required when prescription is invoked
to free one from an obligation. For instance, the Society
of Jesus had a legal claim on the Olivetans of Palermo,
who paid 2500 scudi interest to the Society until the
latter's suppression, in 1773, and even afterwards to the
Camera Spoliorum, until 1782, when they stopped pay-
ment. After the restoration of the Society of Jesus, in
11 Cfr.Reg. lurit Si in 6°: "Iuris
ignorantia in uiucapione ntgatur
frodtss* facti vtro ignorantia pro-
desst potest " ; Enget, U, 26, nn. 79
0.
12 Reiffenstuel, II, a6, nn. 79 ff.
xalbii., n. 131 ff.
>Ie
Original from
UNIVERSITY OF WI5C0NSI
i54 ECCLESIASTICAL PROCEDURE
1814, the payment was naturally claimed by the Jesuits,
and the S. Congregation decided in their favor, although
the Neapolitan laws favored the claim. of the Ohvetans.
The reason for this decision was that the documents
showed that their opponents were aware of their duty,
as they mentioned it in 1796, 1818, and 1823. Hence
the bona fides required by Canon Law could not be
proved.1*
This case illustrates what is called positive liberation
from an obligation. There is also a negative one, which
specially concerns servitudes (leases) and criminal ac-
tions. For the prescription of these the authors do not
require good faith, saying that one is not positively held
to bring criminal action against the culprit, because there
is question of a mere tolerance or non-use of a right
which may be claimed or discarded.15 But it may be
added that the duty of prosecution lies primarily with
the authorities, and that many are either not in a condi-
tion, or not disposed, to institute a criminal action.
This view forestalls hatred and fanaticism. That no obli-
gation of denouncing transgressors exists in regard to
merely penal laws goes without saying.
(c) The next requisite is a titulus, which is denned as
* causa de se habilis ad transferendum dominium" This
is the legal evidence of one's right of property, or the legal
claim to an acknowledged or alleged right. Such a title is
any contract legally and lawfully entered. A title is called
just if acknowledged by law; it is true when it is based
upon the thing itself, without reference to the legal requi-
sites ; for instance, a donation or contract may have been
made by two parties informally, i.e., without the observ-
ance of formalities, as an informal engagement. There is
i« S. C EE. ct RR., Sept. •$ 15 Ctr. Engcl, H, afi. n. iBff.;
18 '6 (Bizzarri p. 426). Santi-Lcitncr II, a6, n. aa.
oogle
Original from
UNIVERSITY OF WISCONSIN
CANONS 1701-1705 155
a
a
also a colorable or putative title (titulus coloratus) which
is acknowledged by law, although it may be tainted with
an intrinsic defect, for instance, if the person, being a
minor, was incapacitated for acting, such a title is sufficient
for lawful prescription. For although the title may not
be true, it is just, and it is only for the sake of public
tranquillity that the law requires a certain lapse of time
for a colorable title to become true and just. Otherwise
prescription would effect nothing, because where there is
a true and just title from the very beginning, prescription
is not needed.18
(d) The last requisite is continued possession. A real
hold on the thing, either by the person himself or by
another in his name, is required, because without a mani-
fest and palpable sign of the will of possessing a thing,
possession cannot exist among men.17 But possession
must also be continued, not interrupted. Interruption,
either natural or civil, is an obstacle which stays pre-
scription in such a way that the time elapsed is no longer
reckoned. Thus if three years are required, and the im-
pediment occurs in the course of the third year, the term
must be commenced anew. Natural interruption may
be caused by supervening bad faith or by loss of pos-
session. Civil interruption is caused by civil action begun
with the summons (see can. 1725). Entirely different
from interruption is suspension, which may happen, for
instance, when a church is deprived of its pastor or prelate
by death or superior force. In that case the duration of
the suspension is subtracted, but the preceding and fol-
lowing time are counted.18
The time required for prescription is defined partly by
icEngel, II, 26, n. aaf.; Rdffea- n Ren. Juris 3 »'« 6".
ftnel, II, 26, n. 120 ff.; Santi- is SMti-Leitner, II, a6, n. 31 U
Leitner, II, 26, n. 33 **•
§le
v ,1,., Original from
UNIVERSITY OF WISCONSIN
156 ECCLESIASTICAL PROCEDURE
can. 1508, which admits the term acknowledged by civil
law, partly by can. 1511, which establishes a period of 100
years for prescription against property and precious
things belonging to the Apostolic See, and a period of 30
years with regard to ecclesiastical corporations, and partly
by can. 1703, concerning criminal actions.
We proceed to can. 1705, § 1, which rules that prescrip-
tion in civil cases runs from the moment the law permits
prescription to be brought. Therefore the canons just
mentioned, viz., 1508 and 1511, may be applied here, even
after the time allowed by civil law for prescription has
run out, except, of course, that the application of can. 15 n
is a very delicate matter.1*
Canon 1705 continues: in criminal cases prescription
runs from the day when the crime was perpetrated, unless
the crime is continuous (habet tractum snccessivunt; for
instance, rape or violent detention), in which case the
prescription runs from the day the continuity ceases, i.e.,
after the completion of the last of a series of acts which
form a whole.
§ 3 of can. 1705 makes a special regulation concerning
habitual crimes,20 against which prescription runs only
from the last act not followed by another of the same
species. If one has been accused of a criminal act not
yet prescribed, he is also held responsible for coherent
acts which antedate prescription, even though these former
acts could not have been prosecuted because of prescrip-
tion. Take, for instance, a husband accused of violence,
whose wife seeks separation; there may be other crimes
connected with the one alleged, though committed years
ago.21
10 Because of the politic o-reHgioua 20 Such would be ctmcubtHstUj,
aspects of the so-called Roman Que*- also non-rtsid*nt%a of clergymen.
lion: cfr. can. 2345. -i For instance abortus resulting
from acts of violence.
jle
v ,|Y> Original from
UNIVERSITY OF WISCONSIN
■
TITLE VI
OPENING OF THE CASE
A trial may be considered to have three stages: the
opening, the defence or pleading, and the sentence with
its execution.
The first stage, or opening of the case, comprises two
distinct acts: the statement of the case (libelli oblatio)
and the summons (citaiio).
i57
►ogle
% ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
N
■
CHAPTER I
the bill of complaint
Can. 1706
Qui aliquem convenire vult, debet libellum com-
petent! iudici exhibere, in quo controversiae obiectum
proponatur, et ministerium iudicis ad deducta iura
persequenda expostuletur.
Can. 1707
§ 1. Qui scribere nescit, aut legitime impeditur
quominus libellum exhibeat, oretenus petitionem suam
coram tribunal! proponere potest.
§ 2. Item in causis facilioris investigations et
minohs momenti ac propterea cito expediences, iudicis
arbitrio relinquitur petitionis admissio oretenus sibi
facta.
§ 3. In utroque tamen casu iudex notarium iubeat
scriptis actum redigere qui actori legendus est et ab eo
probandus.
Can. 1708
Libellus quo lis introducitur debet :
i.° Ex prime re coram quo iudice causa introducatur,
quid petatur, et a quo petatur;
2.° Indicare, generatim saltern, quo iure innitatur
actor ad comprobanda ea quae aliegantur et as-
seruntur ;
158
j Original from
-OO^lt UNIVERSITY OF WISCONSIN
CANONS 1706-1710 159
3.0 Subscribi ab actor e vel eius procuratore,
appositis die, mense et anno, nee non loco in quo actor
vel eius procurator habitant, aut residere se dixerint
actorum recipiendorum gratia.
Can. 1709
§ 1. Iudex vel tribunal, postquam viderit et rem esse
suae competentiae et actori legitimam personam esse
standi in iudicio, debet quantocius libellum aut
admittere aut reiicere, adicctis in hoc altero casu
reiectionis causis.
§ 2. Si iudicis decreto libellus reiecrus fuerit ob vitia
quae emendari possunt, actor novum libellum rite
confectum potest eidem iudici denuo exhibere; quod
si iudex emendatum libellum reiecerit, novae reiec-
tionis rationes exponere debet.
§ 3. Ad versus libel li reiectionem" integrum semper
est parti intra tempus utile decern dierum recursum
interponere ad superius tribunal: a quo, audita parte,
et promotorc iustitiae aut vinculi defensore, quae-
stio reiectionis expeditissime definienda est
Can. 1710
Si iudex continue? mense ab exhibito libello decretum
non ediderit quo libellum admittit vel reiicit ad normam
can. 1709, pars cuius interest instare potest ut iudex
suo munere f ungatur ; quod si nihilominus iudex sileat,
lapsis quinque diebus a facta instantia, poterit
recursum ad Ordinarium loci, si ipse iudex non sit, vel
ad superius tribunal interponere ut vel iudex ad
definiendam causam adigatur vel alius in eius locum
subrogetur.
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
i6o ECCLESIASTICAL PROCEDURE
A bill of plea, or original writ,1 is a statement of the
case made to the competent judge in order to ask him
to prosecute or to grant redress.
It is not absolutely required that this bill be presented
in writing. It may be that the plaintiff is illiterate or un-
able to write on account of a lawful obstacle, such as
paralysis. If so, the plea may be made orally. Besides,
the judge is free to accept an oral plea if the case is of
minor importance and easily settled, or if quick action
is required.
When the bill is not presented in writing, the judge
shall command the notary or clerk to put it into writing
and to read it to the plaintiff, so that he may approve of it.
The contents of the bill are :
(a) the name of the judge (or at least the court)
before whom the case is to be tried: because, for reasons
stated above, under can. 1 560-1568, it is important to
know whether the judge is competent;
(b) the object of the plea, for instance, whether it is
a civil or a criminal case; also whether possession or
ownership is claimed ; in matrimonial cases, whether sepa-
ration or complete divorce is asked ;
(c) the name of the defendant, or adversary, or ac-
cused party (in criminal cases), for this is necessary to
summon him;
(d) the law or reason on which the claim is based,
at least in general, because this is the directing line
along which the defence shall run. Thus a clergyman
who asserts that force was used in his ordination may
cite can. 214; a claim against unjust alienation may
be based on can. 1 532-1 534; a suit against division of
parishes on can. 1427 f. ; an invalid profession on can.
-
<
1 Plaint and original writ ar* not the amount involved; Blickstone*
entirely identical, but depend on Cooky, III, 273.
"■
jle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANONS 1706-1710 161
572, etc., etc. But this allegation is to be made only
in general terms, because the bill should be brief and
not contain proofs and documents, etc.
The bill must contain the signature of the plaintiff or
his proctor (attorney) ; the date (day, month and year),
the place where the plaintiff or his attorney live or reside,
or where they will be ready to receive judicial acts. An
attorney may give his office address, so also the plaintiff,
if he has one, because both may refuse to accept judicial
documents in their homes for various reasons.
What is the judge to do with such a bill? He may
either accept or reject it. After inspecting the bill he
shall ask himself whether he is competent (can. 1560-
1568) to take cogni2ance of and decide the case and
whether the plaintiff is entitled to bring suit. Concerning
the latter point he should look up can. 1646-1654.
Though the judge may be competent to accept the case
and the plaintiff entitled to bring suit, the judge may
reject the bill, not on account of a frivolous plea of in-
competence, which is forestalled by can. 1625, but by
reason of defects in the bill. It may be that the judge,
without being a stickler or bent on " red tape," finds the
bill in need of correction (ob vitia quae emendari possunt),
" Correction " here is not identical with change, because
emendatio means correction of an accidental mistake;
thus it may be that the sum demanded is not correctly
stated, or the demand is made in an obscure way, or the
law is not quoted properly, or the names are illegibly
written. The reasons why the bill is refused must be
stated by the judge, not only if the refusal is based on
purely material or formal grounds, but also if the judge
believes himself incompetent or deems the plaintiff incap-
able of bringing suit. If the corrected bill is again re-
jected, the reasons must be restated, for after the first
■"■
gle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
i6a ECCLESIASTICAL PROCEDURE
refusal of the bill on account of formal defects the plain-
tiff may offer a new, corrected bill.
Should the bill be refused a second time, the party may.
within the space of ten equitable days, have recourse —
not appeal — to the higher court which has to settle the
question of refusal as soon as possible, after having heard
the party, the prosecuting attorney, and the defensor
vinculL
• But it may be that the judge to whom the bill was first
presented, makes no move either to accept or to refuse it,
In that case, after the expiration of a month from the
date when the bill was presented, the plaintiff may insist
that the judge perform his duly, and if he or his attorney
knows the Canon Law, they may quote can. 1625 in order
to make him act. If he continues inactive, the party shall
wait five more days, and then have recourse to the local
Ordinary. If the Ordinary himself is the judge, the
plaint; fT may appeal to the higher court, asking it to com-
pel the judge to decide the case or to substitute another
judge. This privilege was granted to expedite cases as
much as possible.*
a Trid., Sen. 24* c. ao, U rwf.
I Original from
ViOO^K. UNIVERSITY OF WISCONSIN
■
pi
CHAPTER II
l
summons and intimation
Can. 1711
§ t. Libello vel orali petition© admissa, locus est
vocation! in ius seu citationi alterius partis.
§ 2. Quod si partes litigantcs spontc coram iudicc se
sistant ad causam agcndam, opus non est citatione, sed
actuarius significct in actis partes spontc sua iudicib
adfuisse.
Can. 1712
x, Citatio fit a iudicc, et libello litis introductorio
inscribitur aut adiungitur.
§a. Denuntiatur autem rco, et, si sint plures,
singulis.
§ 3. Debet insuper acton nota fieri, ut statuta die et
hora ipse quoque coram iudice se sistat.
Can. 1713
Si lis moveatur ei qui non habet libera m adminis-
trationem rerum, de quibus disceptatur, citatio
denuntianda est ei qui ipsius nomine iudicium
suscipcre tenet ur ad norm am can. 1648- 1654.
Can. 1714
Quaelibet citatio est peremptoria; nee iteretur
necesse est, nisi in casu de quo in can. 1845, § a.
163
G 1 Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
164 ECCLESIASTICAL PROCEDURE
After the plaintiff has presented his bill, or stated, and
the competent judge has accepted, the case, the latter shall
(as formerly the proctor), summon the defendant to
appear in court. This was and is called in ius vocare or
the summons made by the lawful judge to the other partyM
either plaintiff or defendant. This is the beginning of the
judicial action. It may be omitted if both parties appear
of their own accord before the judge; but in that case the
clerk must record the fact that the parties appeared spon-
taneously at the trial, so as to preclude a plea of dilatory
exception.
The citation or summons must be issued by the judge,
and is to be written on the bill of plea, or added to it.
This, in civil cases, is done in order to give the defendant
a chance to know immediately the nature of the case and
to prepare his defence. In criminal cases, however, this
insertion into, or connection with, the bill of complaint
is not only not required, but generally impractical, and
may therefore be omitted, according to can. 1945, § 2
n. 3.
If there are several defendants, the summons is issued
to each, otherwise only to the one. If a corporation is
the defendant in the case, the summons is issued to the
lawful superior, which is entirely sufficient.1
Can. 1713 rules that if minors, or corporate persons, or
non-corporate entities, such as pious foundations, are sued,
the summons must be issued to the respective superiors,
guardians, or administrators, in a word, to their lawful
representatives. .
It is also required that the plaintiff himself be notified
of the summons as soon as it has been made, so that he,
too, may present himself in court on the day and at the
hour set for the case.
1 Santi-Leitner, II, 3, n. 7.
"■
\\. \i-\lt> Original from
lOOgK. UNIVERSITY 0FWI5C0NSIN
CANONS 1715-1716 165
Every summons is peremptory, i.e., one citation suffices
and is final and urgent, so that the defendant is held in
contempt, or may at least be declared to be in contempt,
if he ignores it. The only exception to this rule is when
ecclesiastical censures are threatened, because in that case
a second summons is required.
■
CONTENTS OF THE SUMMONS
■
Can. 1715
§ x. Citatio denuntietur per schedam, quae prae-
ceptum iudicis parti conventae factum ad com-
parendum exprimat, idest a quo iudice, ob quam
causam saltern verbis generalibus indicatam, quo
actore, reus, nomine et cognomine rite designatus,
conveniatur; nee non locum, et tempus, idest annum,
mensem, diem et horam ad comparendum praefbeam
perspicue indicet
§ a. Citatio, sigillo tribunalis munita, subscribenda
est a iudice vel ab eius auditore et a notario.
Can. 1716
Citatio duplici scheda conficiatur, quarum altera
remittatur reo convento, altera asservctur in actis.
As will be seen under can. 1723, the summons must
comply with all the conditions prescribed by can. 1715-
Hence it is important to explain the various elements
distinctly :
1. The intimation must be made in writing (per
schedam).
2. It must be a command of the judge to the defendant,
and not a mere exhortation or friendly invitation.
3. The name of the judge must be clearly stated, so
_. {^c\r\n\i> Original from
,00cVC UNIVERSITY OF WISCONSIN
i66 ECCLESIASTICAL PROCEDURE
that the defendant may know immediately wheth:r the
judge is competent or not; if the judge is delegated, he
should have his credentials or letters-patent ready to show
>them to the defendant. If he does not prove his dele-
gation, the summons is void.*
4. The tenor of the complaint at least in general terms
according to the bill of plea or petition.
5. The name and surname of the plaintiff and the
defendant, so that no mistake as to persons may void the
summons.
6. The place where and the date when the defendant
has to appear, giving year, day, and hour, all clearly and
distinctly written.
7. The summons must be sealed with the seal of the
court, and be signed by the judge or his auditor and the
notary.
These are the essential features of the summons; the
duplicates required by can. 1716 are not essential. One
copy is to be delivered to the defendant, while the other
is inserted in the records or acta and preserved.
intimation or conveyance of summons
Can. 1717
§ 1. Citationis scheda, si fieri potent, per Curiae cur-
sorem tradenda est ipsi convento ubicunque is
invenitur.
, §2. Ad hoc cursor etiam fines alterius dioecesis
ingredi potest, si iudex id expedire censuerit et eidem
cursori mandaverit.
» § 3. Si cursor personam conventam non invenerit in
loco ubi commoratur, relinquere poterit citatoriam
schedam alicui de eius familia aut f amulatu, si hie earn
»C. II, X I. *9; c. a, X, II. 8.
* anilL Original from
■OOgK. UNIVERSITY OF WISCONSIN
CANONS 1718-1721 167
recipere paratus sit ac spondeat se reo convento
quamprimum schcdam acceptam traditurum ; sin
minus earn ad iudicem referat, ut transmittatur ad
normam can. 1719, 1720.
Can. 1718
Reus qui citatoriam schcdam recipere recuset,
legitime citatus habeatur.
Can. 1719
Si ob distantiam vel aliam causam difRculter per
cursorem tradi possit reo convento scheda citatoria,
poterit iussu iudicis transmitti per tabellarios publicos,
dummodo commendata et cum syngrapha receptionis,
vel alio modo qui secundum locorum leges et con-
ditiones tutissimus sit.
Can. 1720
§ 1. Quoties, diligenti inquisitione peracta, adhuc
ignoratur ubi commoretur reus, locus est citationi per
edictum.
§ 2. Hoc autem fit affigendo per cursorem ad fores
Curiae schcdam citationis ad modum edicti per tempus
prudenti iudicis arbitrio determinandum et in aliqua
publica ephemeride cam inserendo; si vero utrumque
fieri nequeat, alterutrum sufficiet.
Can. 1721
§ 1. Cursor, cum in manu rei conventi citationis
schedam relinquit, debet earn subsignare, adnotatis die
et bora qua reo tradita est.
§ 2. Idem peragat si earn relinquat in manibus
,|,, Originalfrom
UNIVERSITY OF WISCONSIN
igle
i68
ECCLESIASTICAL PROCEDURE
alicuius de familia aut famulatu rei convent^ addito
insuper nomine personae cui schedam tradidit
§ 3. Si citatio fiat per edictum, cursor in edicti calce
signet qua die et hora edictum affixum ad fores Curiae
fuerit et quandiu affixum manserit
§ 4. Si reus receptionem schedae rccusct, cursor
schedam ipsam subsignatam, addita die et bora
recusations, iudici remittat.
Can. 1722
§ 1. Cursor quae peregit ad iudicem referat in
scriptis manu propria subsignatis, quae in actis
serventur.
§ a. Si per tabellariorum officium citatio trans-
mittatur, asservatur in actis fides eiusdem officii.
A summons, as stated, is essential and must be de-
livered into the hands of the defendant and proof of the
delivery furnished. The summons may be conveyed by
a courier, or by means of a letter, or by public edict.
1. A courier * is the most reliable means of convey-
ing an important message. He should be a trustworthy
person and deliver the summons to the defendant, wher-
ever the latter may be. For this purpose he may enter
the boundaries of a strange diocese — which act is not,
properly speaking, an act of jurisdictional exercise — if
the judge deems it expedient and commands him to do so.
After the courier has found the defendant and delivered
the summons into his hands, he must sign the summons
8 In our ecclesiastical courts, 80 it should be done on account of the
far at leaet, apparitorei were not aafety of conveyance. In England,
employed; Messmer, /. e„ P. 6j. according to Blackstone nil, 270).
Although the Code does not reject two of the sheriff's messengers de-
the contrary custom, yet where livered the summons either to the
these officers can be mode use of, person himself or left H at hit house.
Go >gle
Original from
UNIVERSITY OF WISCONSIN
CANONS 1718-1722 169
personally with the date and hour of delivery, after the
manner of a telegraphic dispatch.
If the defendant refuses to accept the summons, the
courier shall nevertheless sign the summons, as stated
above, noting the day and hour of refusal, and return it
to the judge. The effect of this refusal is that the de-
fendant is considered as duly summoned, and may be de-
clared in contempt of court.4
If the defendant is not at home, i.e., at his usual resi-
dence, office, shop, or store, when the courier arrives with
the summons, the latter may leave the writ with a member
of his family or one of his employees or servants, provided
they are willing to accept it and promise to hand it to the
defendant as soon as possible. If no such readiness is
manifested, the courier must return the writ to the judge,
in order that other means may be employed. But if the
family or employees are willing to comply with the de-
mand, then the courier may leave the summons in their
hands, having signed it, noted the day and hour of de-
livery, and added the name of the person to whom the
paper was delivered.
2. Another means of conveying the summons into the
hands of the defendant is the public mail service. This
may be resorted to when the distance is too great, or for
other reasons, for instance, to avoid suspicion or gossip.
But the letter containing the summons must be registered,
and a return receipt must be demanded (ricevuta di
ritorno).
3. When neither a courier nor the post office are able to
locate the defendant, no other means is left than summons
by edict. This is done by posting the summons at the
outside door of the court for a period considered sufficient
by the judge and by advertising in the public (not neces-
* c. 5. x, n, «.
• 1 Original from
,00aI> . UNIVERSITY OF WISCONSIN
170 ECCLESIASTICAL PROCEDURE
St
sarily in the Catholic) press. If both of these expedients
are impossible, one suffices. This is certainly the case if
there is no proper court-room or established place for
holding trials. If the edict is posted at the gate of the
court-room, the officer who posts it must set down at the
bottom of the edict the day and hour when he posted it,
and later add the time during which it was publicly dis-
played. He must also make out a written report of
the proceedings, and this document, properly signed, must
be added to the judicial acts. If the summons was sent
through the mail, the receipts must be kept in the records.
■
necessity and effect of summons
Can. 1723
Si schcda citatoria non refer at quae in can. 17x5
praeBcribuntur aut non fuerit legitime intimata, nullius
momenti sunt turn citatio turn acta processus.
Can. 1724
Regulae superius statutae pro rei citatione, ceteris
quoque iudicii actibus, pro diversa tamen eorurn
natura, accommodandae et applicandae sunt, ut
decrctorum vel sententiarum denuntiationi aliisque
huiusmodi.
Can. 1725
Cum citatio legitime peracta fuerit aut partes sponte
in iudicium venerint:
x.° Res desinit esse integra;
a.0 Causa fit propria illius iudicis aut tribunalis,
coram quo actio institua est;
3.0 In iudice delegato firma redditur iurisdictio it a ut
non exspiret resoluto iure delegantis ;
gte
/""* ^ v ,|„ Original from
UNIVERSITY OF WISCONSIN
CANONS 1723-1725 171
4.0 Interrumpitur praescriptio, nisi aliud cautum ait,
ad nor mam can. 1508;
5.0 Lis p end ere incipit; ct idco statim locum habet
principium : " lite pendente, nihil innovetur."
How necessary a carefully written and lawfully con-
veyed summons is, is apparent from can. 1723, which says
that if the summons was omitted, the entire proceedings
are null and void.
The rules laid down for the summons must be adapted
and applied, with due consideration of their importance,
to all the other judicial acts, e.g., the issuance of decrees
made by the tribunal, the pronouncement of the sentence,
and so forth.
The effects of a duly issued and legally served sum-
mons or of the spontaneous appearance of the parties in
court are:
1. The case has taken a legal turn (res non amplius est
Integra ) .
2. The judge or court before whom the action was
brought becomes competent, and hence incompetency can-
not be asserted afterwards.
3. The delegated judge is confirmed or perpetuated, so
that his jurisdiction does not cease even if the delegans
dies or goes out of office.
4. Prescription is interrupted, not merely suspended,
so that bona fides or title cannot be pleaded (see can.
1508).
5. The case or suit is now pending, and hence the prin-
ciple: "lite pendente, inhil innovetur" goes into effect.
How this is to be understood appears from the Decretals,
which mention6 especially: (a) change of possession,
which cannot be transferred to another ; (b) validity of
0 Cfr. cc. 1-4, X, II, 16; c. 17, |X, I, 6; c. 9, X, III, ig.
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
172
ECCLESIASTICAL PROCEDURE
rescripts, which are looked upon as obreptitious or sub-
reptitious if no mention is made of the pending suit; (c)
prohibition of alienation, and (d) the restitution of things
to their former condition.
N
■
►ogle
Original from
UNIVERSITY OF WISCONSIN
■
pi
TITLE VII
ISSUE IN PLEADING (LITIS CONTESTATIO)
Originally the phrase litis contestatio seems to have
meant merely the notice given by both parties to their
witnesses to appear before the judge. Later, however,
the term came to comprise the whole of the proceedings
before the prsetor, i.e., in iure.1 Our Code first explains
the term, then considers some intricate and doubtful cases,
and, finally, describes the effects of litis contestatio.
definition and requisites
Can. 1726
Obiectum seu materia iudicii constituitur ipsa litis
contestation^ seu formali conventi contradictione
petitioni actoris, facta animo litigandi coram iudice.
Can. 1727
Ad litis contestationem nulla necessaria est aollem-
nitas, sed sufficit ut partibus coram iudice vel eius
delegato comparentibus, in actis inseratur petitio
actoris ct contradictio conventi, unde constet qua de re
agatur seu quinam sint controversiae termini.
It is supposed that the defendant has received the or-
iginal writ or plaint, understands the reason for which suit
has been brought against him, and is ready to " fight the
l Ramiay-Lanciani, Roman Antiquities, 190 1, p. 34« *■
►ogle
% ,|,, Original from
UNIVERSITY OF WISCONSIN
174 ECCLESIASTICAL PROCEDURE
case," to use a common expression. Hence the issue in
pleading is nothing else but a final denial or contradiction
of the plaintiff's demand, coupled with the intention of
prosecuting the case before the judge. By this general
answer and denial of the defendant the matter of the
trial is established. We purposely use the term ** gen-
eral " because it is not required that the defendant con-
tradict every particular statement in the plea. Nor is an
exception intended in the proper sense.2 No special or
set formality is required, and the issue in pleading is
valid even if the words or terms or rejoinders are not
pronounced or composed with technical correctness. It
suffices that the plaintiff tell the judge or his delegate what
the case is, and that the defendant deny the charge or
refuse the demand of the plaintiff before the same judge
or delegate. But both the demand and the refusal must
be inserted in the records (acta), which must show what
the points in controversy are.
INTRICATE AND DOUBTFUL CASES
Q
<j
Can. 1728
In causis tamen implicatioribus, in quibus petitio
actoris nee perspicua sit nee simplex vel contradictio
conventi difficultatibus scateat, iudex, ex officio aut ad
instantiam actoris vel conventi, partes citet ad rite defi-
niendos controversiae articulos, idest ad causae dubial
ut dicitur, concordanda.
Can. 1729
§ x. Si die dubiis concordandis praestituta, pars in
ius vocata non compareat nee iustam absentiae
2 C. a. 6\ II. 3.
§le
v ,|,, Original from
UNIVERSITY OF WISCONSIN
CANONS 172&-1729 17s
excusationern alleget, contumax dcclarctur, et du-
biorum formula statuatur ex officio, parte, quae
praesens f ucrit, id postulante. Parti autem contumaci
statf m id notum fiat ex officio ut quas velit exceptiones
contra dubiorum seu articulorum formulam possit
proponcre et a contumacia se purgare, intra tempus
quod iudici congruum videatur.
§ 2. Partibus praesentibus et in formula dubiorum
seu articulorum concordibus, si iudex, quod ad se
attinet, nihil excipiendum putaverit, eius rei fiat
mentio in decreto quo formula firmatur.
§3. Si vero partes dissentiant aut earum conclu-
siones iudici non probentur, iudex ipse controversiam
dirimat decreto.
§ 4. Dubiorum seu articulorum formula semel
statuta mutari non potest, nist novo decreto, ex gravi
causa, ad instantiam partis vel promotoris iustitiac,
vel def ensoris vinculi, audita utraque vel altera parte
eiusque rationibus perpensis.
If the petition, or writ, or plaint of the plaintiff is ob-
scure and complicated,8 or the denial of the defendant
offers serious difficulties, either because the facts are
doubtful or the law is indefinite, the judge shall, either
ex officio or at the demand of either party, command both
parties to define the points at issue more clearly (ad
concordanda dubia). This is done by means of a formal
summons, in the shape of a decree issued by the judge, in
which the parties are ordered to appear on the day and
hour and at the place appointed.4
If a party thus duly summoned does not appear in
B The Caste! Ian i-Gou Id case was tura Apostolica; ice Regulat S*t~
proposed to the Roman courti three vamdae, March 6, 1912 {A. Ap. S.,
time*. IV, 196ft*.).
a
4 Thit is the law with the Sifna-
jle
£ * ^ , %\^ Original fro rn
UNIVERSITY OF WISCONSIN
176 ECCLESIASTICAL PROCEDURE
court on the appointed day and gives no legitimate reason
for his failure, he is to be declared in contempt, and the
party who is present may demand that the doubts or
doubtful positions be formulated ex officio. The party
declared in contempt (see can. 1842 ff.) must be at once
officially notified in order to be enabled to take excep-
tion to the doubts officially formulated and to " purge "
himself of contumacy. For this purpose a sufficient
space of time must be granted by the judge. If both
parties are present and agree upon the disputed points,
or rather on the manner in which they have been formu-
lated, this fact must be put on record, provided the judge
on his part is satisfied. If, on the other hand, there is
disagreement among the parties as to the points in ques-
tion, or if the judge is not satisfied, he may settle the
controverted points himself, i.e., formulate them by a
decree. Once the controversial points have been deter-
mined, no change is admissible, except for weighty reasons
and upon the demand of the parties or of the promotor
iustit-.ac or the defensor vinculi, after these have heard
the parties or party and properly pondered the reasons
proposed. But every change in the positions or contro-
verted points requires a new decree.
D
effects of the litis contestatio
Can. 1730
Antequam litis contestatio locum habuerit, iudex ad
testium aliarumve probationum receptionem ne proce-
dat, nisi in casu contumaciae, aut nisi testium deposi-
tioncm recipere oportcat, nc ipsa ob probabilcm testis
mortem, ob discessum eiusdem vel ob aliam iustam
causam recipi postea nequeat, aut difficulter possit.
jfe
£ " ^ , ,1,., Original from
UNIVERSITY OF WISCONSIN
CANONS 1730-1731 177
Can. 1731
»-
Lite contestata:
i.° Hand licet actori lib ell um mutare, nisi, reo con-
sentiente, iudex, iustis de causis, censeat rnutationem
esse admittendam, salva semper reo compensatione
damnorum et expensarum, si quae debeatur. Libellus
non censetur mutatus, si coar ctetur aut mutetur proba-
tions modus ; si minuantur aut petitio aut accessoria
petitionis ; si f act i adiuncta in libello pridem posita ita
illustrentur, compleantur aut emendentur, ut contro-
versiae obiectum idem remaneat ; si in locum rei petatur
prctium, foenus aut aliquid aequivalens;
2.0 Iudex congruum tempus partibus praestituat pro-
bationibus proponendis et explendis; quod quiden
potent, instantibus partibus, arbitrio suo prorogare.
dummodo ne lis, ultra quarn aequum sit, protrahatur;
3.0 Possessor rei alienae desinit esse bonae fidci ; qua
propter damn a Lus rem restituere, non solum rem ipsam,
sed et rei fructus a litis contestatae tempore restituere
tenetur et damna praeterea sarcire, si qua secuta
fuerint.
The litis contestatio should establish the object or char-
acter of the suit. Therefore specified charges and an-
swers must be preferred by both parties, at least in a
general way. This purpose is served by the articuli, or
controverted points, which must therefore be settled first
and are settled by the issue in pleading, which is called the
foundation and beginning of the trial. Before the trial
has actually begun, the judicial procedure is not deter-
mined, nor is it certain that the defendant will prosecute.
Hence :
I. Before the litis contestatio has been properly made
and the controverted points have been fixed, the judge
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
178 ECCLESIASTICAL PROCEDURE
cannot lawfully proceed to hear the witnesses or receive
proofs, depositions, reports of experts, etc.
But the Code, like the old law,8 admits exceptions to
this rule; viz.: (a) If the defendant has been declared
in contempt, in which case it is not required that the
suit be dispatched as quickly as possible/ the sole fact of
contumacy being sufficient; (b) If the deposition is re-
quired on account of the condition of the witnesses. A
witness may be in danger of death, or advanced in age so
that his memory is weak ; or he may have to depart sud-
denly on some urgent journey; or it may be doubtful
whether he will be as willing to testify later as he is now.7
2. After the litis contestatio: (a) It is not allowed
to change the original writ (libellus) unless the judge,
for weighty reasons, deems a change necessary and the
defendant consents, provided always that the latter be
indemnified, if necessary. Note well the difference be-
tween correction (emendatio) and change (mutatio). Of
the former mention was made under can. 1709, §2.
Here change in the proper sense is intended. A change
means a substantial alteration of the case, for instance, if
a possessory is changed into a petitory cause; or in ma-
trimonial cases, if a divorce is asked for instead of a sepa-
ration, or one impediment is substituted for another ; or,
in ordination cases, if the invalidity of an order is pleaded
instead of freedom from its obligations. But, says the
text by way of example, it is no change, if the mode of
proof is limited or altered, for instance, as to the number
and quality of witnesses; if less is asked either in the
substantial demand or the accessories, especially in aliena-
tion or alimony; if certain facts alleged in the writ are
8 Title VI. Book II. ii complete, « C 5, X, II, 6: celtrtm txpi&i.
amounting to a Uw. tionem.
7 Cfr. cc 2, 3, X, II, ao.
i 1 innolp °™$S™. ..*
'le
UNIVERSITY OF WISCONSIN
CANON 1731 179
made clearer, supplied and corrected, provided the point
at issue, or meritum causae, remains the same ; if, instead
of the thing itself (for instance, a precious article which
has been alienated), a certain sum, or an interest, or an
equivalent is demanded. These are corrections, not
changes.
(b) The judge shall set a certain term for proposing
and completing the process or proofs. This term may,
however, be prorogued at the demand of the parties, but
not unduly (cfr. can. 1620, 1634).
(c) The possessor of property belonging to another
ceases to be bona fide after the litis contestatio, and there-
fore, if he should lose his case, is'bound to make restitu-
tion not only of the property or thing itself, but also of
the interest or profit drawn from the moment of the litis
contestatio, and shall also be held to indemnification, if
an additional loss should occur either to the defendant
or to the object.
In the Roman tribunals the sum to be deposited for the
expenses is determined at this juncture.8
*Rtg. Sig. Apost., art. 37 {A. Af. S., IV, 199).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
TITLE VIII
LITIS INSTANTIA OR PROCEEDINGS
There is no such title as this in the Decretals, nor
could we find an adequate terra for it in English law.1
Perhaps pleadings would suit, but proceedings, if taken in
the limited sense of judiciary acts which begin with the
litis contestatio, conveys the idea of the title just as well.
The text first defines Wis instantia, and then explains the
modes of interruption, abatement, and renunciation.
definition and interruption
Can. 1732
Instantiae initium fit litis contcs tatione ; finis autem
omnibus modis, quibus iudicium terminatur, sed ct
antea non solum interrumpi, verum etiam finiri potest
sive perernptione sive renuntiatione.
Can. 1733
Si pars litigans moriatur aut statum mutet aut cesset
ab officio cuius ratione agit :
i.° Causa nondum conclusa, instantia interrumpitur,
donee heres defuncti aut successor litem instauret;
2.0 Causa conclusa, instantia non interrumpitur, sed
iudex procedere debet ad ulteriora, citato procurators
si adsit, secus defuncti herede vel successore.
lCfr. Blackstone, III, 292 i.
180
J Original from
■UOgie UNIVERSITY OF WISCONSIN
CANONS ij?3+-i735 181
Can. 1734
Si controvertatur cuinam ex clericis litigantibus ius
sit ad benerkium. et alter, lite pendente, moriatur, aut
beneficio renuntiet, instantia non interrumpitur, scd
contra superstitem earn prosequitur promoter iusti-
tiae qui pro beneflcii aut ecclesiae libertate diraicet,
nisi bcncficiuni sit liberae collationis Ordinarii et hie
praeferat causam ut victam superstiti adiudicare.
Can. 1735
Procuratore aut curatorc a munere cessantc, tandiu
interrupta manet instantia, quandiu pars aut ii ad quos
pertinet novum procuratorem vel curatorem nomina-
verint aut per se ipsi in posterum agere se velle pro-
fessi fuerint.
The instantia litis begins with the issue in pleading and
ends with the final sentence. However, the whole pro-
ceeding may not only be interrupted, but also abated or
renounced.
Interruption takes place when one of the parties dies,
or changes his status, or goes out of the office in virtue
of which he was a party to the case, — provided the plead-
ings have not yet been closed.
Statum mutare means to change from the lay to the
clerical state, or from either the lay or the clerical to the
religious state, because the religious form a state of their
own, and, besides, are considered as minors in ecclesias-
tical law. This rule, however, does not apply to novices,
because they still have their own free will {velle et nolle)
and hence may stand judgment, at least by proxy.
Cessare ab officio in this case signifies giving up the
§le
k ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
i8i ECCLESIASTICAL PROCEDURE
office which involves one in the law-suit, for instance,
that of administrator or ecclesiastical superior.
However, interruption lasts only until the litigant's
heir or successor in office again takes up the case. If
the pleadings have been closed, the proceedings are not
interrupted, but the judge must proceed after having
summoned the defendant, if alive and present, or else his
heir or successor.
Can. 1734 refers to the special case of a benefice which
is claimed by two clergymen, one of whom dies or re-
signs while the case is pending. To whom shall the
benefice be adjudged? It is not a vacant benefice prop-
erly speaking, nor can it be resigned except in favor of the
other litigant, which is not here supposed. In this case
the proceedings are not interrupted, but continued by the
promoter iustitiae, who defends the benefice or liberty of
the church. This must be understood of all benefices not
reserved to the Apostolic See.2 If the benefice is of free
collation, i.e., one to which the Ordinary may freely ap-
point, the same Ordinary may confer it upon the survivor
or rather declare that the survivor has won the case and
adjudge the benefice to him. If the proctor (attorney) or
guardian (curator) goes out of office by death, resigna-
tion, or removal, the proceedings are interrupted until a
new proctor or curator is appointed by those concerned or
until the latter have formally declared that they themselves
will prosecute the case.
abatement of the instantia
Can. 1736
Si nullus actus processualis, quin aliquod obstet
impedimentum, ponatur in tribunali primae instantiae
S Cfr. c. i, CIcm. II, 5; can. 1435, | 1, n. a.
;Ic
j ^ Original from
UNIVERSITY OF WISCONSIN
—
N
■
CANONS 1737-^739 183
per bienniutn aut in gradu appellationis per annum,
instantia perimitur, et in altero casu sententia per
appcllationem oppugnata transit in rem iudicatam.
Can. 1737
Peremptio obtinet ipso iure et adversus omnes,
minores quoque aliosve minoribus aequiparatos, eaque
ex officio etiam excipi debet, salvo iure regressus ad
indemnitatem adversus tutores, administratores, pro-
curatores qui culpa se caruisse non probaverint.
Can. 1738
Peremptio exstinguit acta processus, non vero acta
causae; imo haec vim habere possunt etiam in alia
instantia, dummodo ea inter casdem pcrsonas et super
eadem re intercedat; sed ad extraneos quod attinet,
non aliam vim obtinet, nisi documentorum.
Can. 1739
In casu peremptions, quas quisque ex litigatoribus
fecerit, has ipse ferat expensas perempti iudicii.
If, notwithstanding the fact that no lawful impediment
can be alleged, no processual act has been undertaken by
the first tribunal or the first instance within two years,
the proceeding is abated or quashed. If the higher or
second court does nothing within one year from the date
of appeal, although no lawful obstacle is in the way,8
the sentence attacked becomes res indicate.
Abatement holds ipso tare and against all, even minors
and those equal to minors under the law, and must also
be made a case of exception ex officio; but the right of
8 See cc. 5, 8, X, II, 28 and the canons on appeal.
>Ie
/• "* ^ ^_J , Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
184 ECCLESIASTICAL PROCEDURE
claiming indemnity against guardians, administrators, and
procurators who cannot prove their innocence is reserved
to all minors. This claim (regressus), we suppose, holds
for the time during which the representatives of minors
have been culpably idle. This would comprise the lucrum
cessans as well as the damnum emergens.
Abatement quashes all acts of proceedings (acta proc-
essus), but not the acts of the case (acta causae), which
remain effective for another instance (higher court), pro-
vided the case concerns the same persons and the same
matter. For outsiders these acta causae have merely the
value of documents (see can. 1812 if.). In case of abate-
ment the expenses must be shared by the litigants accord-
ing to the measure in which they have incurred or made
them.
renunciation
Can. 1740
§ 1. In quolibet statu et gradu iudicii potest actor
instantiae rcnuntiarc ; item turn actor turn reus possunt
processus actis renuntiare sive omnibus sive nonnullis
tantum.
§ 2. Rcnuntiatio ut valeat, peragenda est in scriptis,
et a parte vel ab eius procurators special! tamert
mandato munito, debet subscribi, alteri parti com-
municari, ab eaque acceptari, vel saltern non im-
pugnari, et a iudicc admitti.
Can. 1741
Admissa, pro actis quibus renuntiatum est, eosdem
parit effectus ac peremptio instantiae: et obligat
renuntiantem ad solvendas expensas actorum, quibus
renuntiatum fuit.
jle
, ,| % Original from
UNIVERSITY OF WISCONSIN
CANON 1741
185
The plaintiff may renounce further proceedings at any
stage or in any instance ; and the plaintiff as well as the
defendant may surrender the acta processus either totally
or partially. Renunciation must, however, be made in
writing and be signed by the party or his proctor acting
under a special mandate. Besides, the renunciation must
be communicated to, and accepted by the other party, or
at least not objected to by the latter, and admitted by the
judge. Valid renunciation has the same effect as abate-
ment with regard to the acts renounced, and obliges the
one who makes it to pay all the expenses thus far in-
curred.
oogle
Original from
UNIVERSITY OF WISCONSIN
N
■
TITLE IX
QUESTIONING THE PARTIES
It is now supposed that the parties have been duly
summoned or notified of the place and date of the trial,
and the issue in pleading has begun. The parties may
be represented by their attorneys or proctors, unless there
be an injunction by the judge commanding them to be
present personally according to can. 1647. The Code
now proceeds to describe the questioning of the parties
and the oath to be administered to them.
questions to be proposed
Can. 1742
§ z. Iudex ad eruendam veritatem facti quod publice
interest ut extra dubium ponarur, debet partes
interrogare.
§ a. In aliis casibus potest unum ex contcndentibus
interrogare non solum ad instantiam alterius partis,
sed etiam ex officio, quoties agitur de illustranda
probations adducta.
§3. Interrogate partium fieri a iudice potest in
quo vis stadio iudicii ante conclusionem in causa; post
conclusionem in causa servetur praescriptum can. z86x.
Can. 1743
§ t. Iudici legitime interroganti partes respondere
tenentur et fateri veritatem, nisi agatur de delicto ab
ipsis commisso.
186
»
Original from
UNIVERSITY OF WISCONSIN
CANON 1743 187
§ 2. Si pars legitime interrogate respondere recuset,
quanti facienda sit haec recusatio, utrum iusta sit, an
confession! aequiparanda, necne, iudicis est aestimare.
§ 3. Pars, quae respondere debet, si illegitime
respondere recusaverit aut si postquam respondent
xnendax reperta fuerit, puniatux, ad tempus a iudice
pro rerum adiunctis definiendum remotione ab actibus
legitimis ecclesiasticis ; et si ante responsionem
iusiurandum de veritate dicenda praestiterit, laicus
interdicto pcrsonali, clericua suspensione plectatur.
The questions asked depend, of course, on the nature
of the case. When the public welfare is at stake, the
judge must question the parties concerning the facts
in order that they may be ascertained. In other cases,
i.e., contentious or civil or private matters, the judge
may question one party at the demand of the other, or
both ex officio, whenever he considers it necessary to cor-
roborate or illustrate a proof alleged. Such questioning
is admissible until the proceedings are closed; but after
they have been finished (post conclusionem in causa),
questioning is allowed only under the conditions men-
tioned in can. 1861.
In order to produce the required effect, questioning
must be followed by the answers of the parties ques-
tioned. Hence as often as the judge is entitled to in-
terrogate the parties, these are obliged to answer accord-
ing to the truth. Only the criminal is not bound to
confess his own guilt, because no one is supposed to
condemn himself.
But what if the party questioned refuses to answer T
Does this refusal amount to a confession? Certainly
not in the case of a criminal, because he is under no
obligation to admit his guilt. Hence the text says that
;Ie
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
-'
■
pi
188 ECCLESIASTICAL PROCEDURE
it lies with the judge who lawfully questions the party
to weigh the argument of silence or refusal, whether it
amounts to a confession or not, etc. It may be that
the judge takes a refusal to answer as equivalent to a
confession,1 except, of course, in criminal cases.
To give greater weight to his authority and to the
law the judge may punish the party who unlawfully re-
fuses to answer a lawful question by denying him any
legal action or, as we say, civic rights, which denial, how-
ever in this case only concerns the ecclesiastical sphere.*
This punishment is to be administered by the judge ac-
cording to the importance of the matter. The same
punishment may be inflicted on one whose answer is
found to be untruthful. A heavier penalty is to be in-
flicted upon a lay person who swears falsely : he is to be
personally interdicted. A clergyman who perjures him-
self is to be suspended, i.e., totally, from office as well
as benefice.*
THE OATH
■
Can. 1744
Iusiurandum de veritate dicenda in causis crimina ■
libus nequit iudex accusato deferre; in contcntiosis,
quoties bonum publicum in causa est, debet illud a
partibus exigcrc ; in aliis, potest pro sua prudent ia.
Can. 1745
§ 1. Turn actor turn reus invicem, turn eliam
promotor iustitiae et defensor vinculi possunt iudici
exhibere articulos, seu quaesita, super quibua pars
interrogetur, quaeque vulgo positiones dicuntur.
1 The Reeular S. R. Rotat, § 139. 2 Cfr. can. 2256. n. a.
read: " farte proecepto iudicis non a Cfr. c. 15, X, I, 11; can. 2278,
obtemperante, facta habeantur uti- i a.
vera et confesao."
,] % Original from
UNIVERSITY OF WISCONSIN
gle
CANON 1746 189
§ 2. In positionibus cxarandis, admittendis et parti
proponendis regulae cum proportion? serventur quae
in can. 1773-1781 statutae sunt.
Can. 1746
Ad iusiurandum pracstandum vcl interrogationibut
respondendum partes pcrsonaliter coram iudice sc
sistere debent, execptis iis de quibus in can. 1770, § 2,
nn. zt 2.
According to the Decretals* an oath was administered
to both parties; it was called iuramentum calumniae,
and in it the parties declared that they were prosecuting
the case in good faith and merely with the intention of
defending their presumptive right, without malice, vexa-
tions, or fraudulent delays. This oath was not an ab-
solute requirement, but could be remitted by tacit re-
nunciation. Our Code knows no such oath. The one
mentioned here is an oath to tell the truth, and resembles
that taken by the witnesses. It must not be demanded
in criminal trials, lest the defendant be exposed to the
danger of perjury. However, in civil cases which con-
cern the public welfare, like matrimonial and ordina-
tion cases, the judge must demand this oath of the
parties. Culpable or negligent omission of this require-
ment does not, however, affect the validity of the acts.
In other cases the judge may demand this oath whenever
he deems it necessary.
In order to facilitate and systematize the proceedings,
the questions to be proposed should be formulated or
specified ; and in that form are called positiones. These
positiones are to be drawn up, admitted, and presented
4 lib. II, tit. 7, dt iuramenio cslumniot.
*Ie
j , Original fro ni
UNIVERSITY OF WISCONSIN
N
■
190 ECCLESIASTICAL PROCEDURE
to the parties in approximately the same way as the
questions put to the witnesses (can. 1773-1781).
To give oath and to answer the questions thus formu-
lated, the parties must present themselves personally
before the judge. This rule applies to all except cardi-
nals, bishops, illustrious personages (can. 1770, § 2,
n. 1) and those who are prevented from coming to court
personally by sickness or their state of life.
>gle
Original from
UNIVERSITY OF WISCONSIN
TITLE X
PROOFS
This title is one of the most important in legal pro-
cedure, because the issue of the trial naturally depends on
the validity of the evidence.
The Code first mentions three Winds of facts which
need no proof ; then it states who has the duty of prov-
ing, and finally regulates the delay of proofs.
preliminary rules
Can. 1747
Non indigent probatione:
x.° Facta notoria, ad normam can. 2197, nn. a, 3;
a.° Quae ab ipsa lege praesumuntur 5
3.0 Facta ab uno ex contendentibus asserta et ab
altero admissa, nisi a iure vel a iudice probatio
nihilominus exigatur.
Can. 1748
§ 1. Onus probandi incumbit ei qui assent.
§ 2. Actore non probante, reus absolvitor.
Can. 1749
Probationer quae ad moras iudicio nectandas
postulari videntur, ceu examen testis longe dissiti, aut
cuius domicilium nescitur, vel cognitio documenti
191
oogle
Original from
UNIVERSITY OF WISCONSIN
192 ECCLESIASTICAL PROCEDURE
quod cito haberi non potest, iudex ne admittat, nisi
hae probationes necessariae videantur quia ceterae
deficiant aut satis non sint.
A proof is the judicial demonstration of the truth of a
disputed assertion or fact1 It is not concerned with
texts, for these are supposed to be safe and evident, but
turns about a controversial point or criminal fact which
must be proved to have happened and in the manner it
is alleged to have happened. Evidence and proof are
not identical, for there may be evidence without proof,
but there is no proof without evidence.1
In regard to the weight of proof the Code speaks of
plena and setniplena probatio, or plenam and semiplenatn
fident facere. Full proof is one which convinces the
judge and prompts him to give sentence without further
investigation. A probatio semiplena or half-proof is one
that leaves room for reasonable doubt. In a wavering
state of mind no one should pronounce judgment.
That even full proofs may differ as to degree, is clear
from such terms as probationes apertissimae, plenissimae,
luce clariores, praesumptivae, etc., used in canon law.
Psychologically speaking, a full proof always excludes
the contradictory proposition and therefore must be called
sufficient in any case ; what is full in its kind cannot be
fuller. But it remains true that different kinds of proof
carry unequal weight and may produce various states
of mind, from mere presumption to absolute certainty.
This truth is illustrated by the following verses :
" Aspectus, sculp turn, testis, notoria, scriptum,
Ittrans, confessus, praesumptio, fama probavit."
1 See the commentators on lib. II, atuel, Santi-Ldtner, and Were*
tit 19 Decretal., especially Re iff en* (/** Decret.), Vol V.
« Mesamcr, J. c., p. 91 f.
oogle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 1749 193
Of these nine kinds of evidence the Code mentions
some explicitly, whereas others are implied under other
species. Confessus or confession occurs in chapter I
of this title; iuratts (oath), testis (witness), and fanta
(rumor) are treated in chapter II, on witnesses;8
aspectus doubtless refers to experts and ocular inspec-
tion; sculptum, i.e., monumentary proof, must be com-
bined with scriptum or documentary proof. Praesumptio
is treated in ch. VI ; notorietas is mentioned in can. 1747.
Of notorious facts, provided they be such as defined in
can. 2197, n. 2, 3, the text says that they need no proof.
Notoriety may be either of law or of fact. The former
arises from adjudged matter and confession; the latter
from that kind of publicity which no artifice can hide or
law protect.4
No proof is required, secondly, for facts which are
presumed by the law; see chapter VI, on presumptions.
Finally, proof is superseded by judicial confession;
see chapter I of this title.
The next question that arises is: Who is obliged to-
furnish proof? It is the one who asserts a right or
fact, not the one who denies it. For a mere denial is
no proof.6 Since the plaintiff generally is the one who
asserts a right or fact, he must furnish proof, as in peti-
tory and possessory trials.' However, if the defendant
sets up an exception or makes a counter-charge, and
thereby becomes a plaintiff (reus excipiendo fit actor) ,
he must furnish proof of his exception or counter-charge.
Those, for instance, who oppose the excommunication
of witnesses, or of parties, or of the judge, must prove
5 The oath refers to witnesses; see I, 6; c. 5, X, I, 9: " ntgantit
ch. VII. factum, per rtr%m naturom, nulla
4Cir. cc. 8, 10, X, III, 2; c 33, tit directo probatio,"
X, 3, 6. o-C. 3. X, II, «.
6 See 1. 2, Dig. 22, 3; c. 23, X,
>Ie
k ,1 ^ Original from
UNIVERSITY OF WISCONSIN
194 ECCLESIASTICAL PROCEDURE
St
that it was inflicted.1 Those who oppose prescription
must prove the title, if the law is against them as in case
of titles; those who pretend exemption must prove the
privilege by showing or proving prescription.*
If the plaintiff fails to furnish proof, the defendant
goes free. By proof is here understood full proof (plena
frobatio), for, as will be seen from can. 1829 if., a half-
proof may be supplied by an oath. Besides, the proof
must concern the action intended; for instance, if the
plaintiff brings suit against disseissin, and proves only
possession and disseissin, but not ownership {petitorium),
he is victorious in the former two points, but not as to
the latter.8 The merit of the cause must be proved.
Thus if a donation is attacked, the instrument of donation,
or the proof that the donation has been made, is the point
at issue, not some attached condition, which has perhaps
been verified in the meanwhile.10 Therefore the prin-
ciple asserted in can. 1748, § 2 must be understood in thi9
sense, that the defendant is absolved to the extent that
the plaintiff fails to furnish proof {in hoc parte).11 Only
if the plaintiff fails entirely in furnishing proof for his
accusations is the defendant fully free, even though he
made no use of counter-defence.11 But a mere assertion
or confession of the plaintiff, even though it may reflect
on his character, is not sufficient to equal full proof.
Thus if one confessed adultery with his brother's wife,
and then (after her husband's death) married her, but
wished to have the marriage dissolved, his confession
would not be sufficient."
Can. 1749 is intended to expedite trials, i.e., to finish
them as quickly as the case permits. Hence it ordains
TC. I, 6", IT. ia; c. a. 6*. V, 10 C. 3. 6°. Hi 14.
11. « C. 15. X, II, 1.
■ C 1, 6, II, 13; c 7. «\ V, 7- «C. 36, X. II, 34.
• C. 3, X. II, is; c. 3. X. II, 19. i»C. 3. I, X. IV. 13.
Q
Go >gle
j , Original fro ni
UNIVERSITY OF WISCONSIN
-'
CANON 1749 195
that the judge should not admit evidence that is ap-
parently demanded for no other purpose than to delay
the sentence, unless such evidence is required because of
the lack or insufficiency of the other proofs. Proofs
which have this dilatory effect are the testimony of a
witness who lives far away from the court or whose
domicile is unknown, and the examination of a document
which cannot be easily and quickly obtained. There is
always room for the suspicion that such witnesses and
documents are demanded with a sinister intention or
frivolously, and they are therefore sometimes called futilia
documenta, which the ponens may and should reject.14
The Code then proceeds to describe the different means
of obtaining evidence. They are: confession, the testi-
mony of witnesses, the declarations of experts, judicial
inspection, documents, presumptions, and oaths.
14 Cfr. c. 5. X, II, 141 It* frofrim S. R, Rotac, cm. 27, | 3
{A, Ap. S.t I, S?).
;Ic
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CHAPTER I
confession
Can. 1750
Assertio de aliquo facto, in scriptis aut oretenus ab
una parte contra sc et pro adversario coram iudice,
sive sponte, sive iudice interrogante peracta, dicitur
confcssio iudicialis.
Can. 1751
Si agatur de ncgotio aliquo private et in causa non
sit bonum publicum, confessio iudicialis unius partis,
dummodo libere et considerate facta, relevat alteram
ab onere probandi.
Can. 1752
Pars, aliquid confessa in iudicio, non potest contra
confessionem suam venire, nisi aut in continent! hoc
faciat, aut probet confessionem ipsam vel carere con-
ditionibus in can. 1750 express-is vel errori facti esse
adscribendara.
Can. 1753
-
Confessio sive scriptis, sive oretenus, ipsimet
adversario aut aliis extra iudicium facta, dicitur
extraiudicialis : eaque in iudicium deducta, iudicis est,
196
Go >gle
^ ,| , Original from
UNIVERSITY OF WISCONSIN
CANONS 1750-1753 197
pcrpcnsis omnibus rerum adiunctis, aestirnare quanti
facicnda sit
Confession is here understood in the judicial, not in
the sacramental sense. It is called judicial because given
before the judge sitting in tribunal. If the judge dele-
gates a notary or an auditor to receive a confession,
it is nevertheless judicial, because the notary acts in
the name of the judge.1 But a confession made before a
lay judge cannot be accepted as such by an ecclesiastical
judge, and the latter may not pronounce sentence on the
strength of it*
Confession, therefore, may be denned as a statement,
oral or written, made before the ecclesiastical judge by
one party against itself and in favor of the other, spon-
taneously or upon the demand of the judge. The text
allows not only spontaneous, but also elicited confession.
That one may confess a deed of his own accord is evi-
dent. But fraud, deceit, or captious words are not ad-
mitted in a spontaneous confession. On the other hand,
the judge may solicit a confession; but he must pro-
ceed lawfully, and lawful proceeding requires that the
party to be questioned is under his jurisdiction, and that,
in a criminal case a denunciation at least, if not a formal
inquisition, was previously made. Besides, the judge
is not free to act like a shrewd lawyer, extorting a con-
fession by misleading or suggestive questions, by cross-
examination, by captious and ensnaring remarks, un-
worthy trickery, etc.8
The judge being entitled to solicit a confession, it
follows that the party is obliged to answer truthfully,
because right and duty are correlative. .Besides every
one is obliged to obey his superior when he lawfully
p
i Reiffeortuel, II, 18, n. 9. 8 Cfr. Meaamer, J. c, p. 97! Santi-
2C. 4, X, II, 1. Leitner, II, 18, 0. ifr
s'c
k ,1,., Original from
UNIVERSITY OF WISCONSIN
198 ECCLESIASTICAL PROCEDURE
commands, and the judge is supposed to proceed law-
fully.4
The plea of " not guilty," with the mental restriction,
" because not convicted " or the like, is not admitted by
Canon Law.
Entirely different from this is the question whether
the defendant is in conscience bound to confess in reply
to a true question which would condemn him in the
external forum, although in the court of conscience he
could not be condemned. Let us give an instance.
James feigned a promise of marriage to Gemma (fide
fromisit tnatrimonium) , and now, at the trial, he is
asked by the judge: Did you promise to marry Gemma?
What is his duty? The more probable answer to this
question is that James may deny the proposition, i.e.,
he may answer negatively, because in doing so he does
not tell an objective untruth, since not the material words
are to be considered, but the intention, and he never
intended to marry Gemma, but feigned the promise. Of
course, we suppose that the judge was under the im-
pression of a false presumption when he asked the ques-
tion.5
Another question : Is the proctor allowed to make a
confession for his client? Although the text mentions
only the party himself, yet if the proctor would confess
yi the presence of his client, and the latter would not
contradict him, or if the proctor had a special mandate
to that effect, his confession could not be rejected.'
The effect of a judicial confession, made freely and
deliberately, is very moderately stated in can 1751: "it
frees the other party from the burden of proof." Hence,
Q
4 Meaamer, /. c, p. ioi. quote Sanchez, Lugo, and other* in
5 Cfr. c. 11, C. aa, q. 5; Reiffen- favor of this view.
atuel, II, 18, ii. 171 if., who could « Cfr. C. a8. Dig:, a, 14; C. 6,
I 1. Dig. 4*1 »•
>Ic
Y ,|rt Original from
UNIVERSITY OF WISCONSIN
■
pi
CANONS 1750-1753 199
if the defendant confesses his obligation or guilt, the
plaintiff has won the case, and, in civil or private mat-
ters ("in negotio private") the judge may proceed
to pronounce sentence.1 In cases affecting the public
welfare, such as matrimonial and criminal cases, the
confession of the party does not produce full proof.8
Another effect of confession is stated in can. 1752,
namely, the party who has confessed something at the
trial, is not allowed to retract his confession. The reason
is because a confession is supposed to be made delibe-
rately and with due reflection, and without any intention
of deriding the judge. However, there are exceptions
to this rule. A confession may be retracted :
1. In continenti, i.e., immediately after the confes-
sion has been made, and before it is taken down in writ-
ing, or before leaving the court, if the judge is willing.
In this case it is not necessary to prove the mistake, but
it is sufficient simply to recall the previous statement
or to correct the error.'
2. If the party who confessed can prove that the con-
fession was not made legitimately, according to can. 1750,
for instance, that the judge proceeded unlawfully.
3. If an error in fact {error facti) — not in law —
is proved, for instance, if an administrator or procurator
momentarily forgot the exact sum or date.10
Can. 1753 mentions extrajudicial confession, i.e., con-
fession made privately to one's adversary or to others,
say the judge or notary, or an attorney outside the court
or tribunal. The proof that such a confession was made
could be furnished by the free admission in court that
it had been made, or by two witnesses who heard it.11
TC. 10, X, I, j6; c. 6, X, I, 9' 10 C 4, X, II, 18.
• C. 5. X. IV. 13; c. 5, X V. 1. u C. 23, X, II, jo; Santi-Leitner,
» See c. 7. X, II, 21; Reiffcnituel, II. 18, n. 7.
II, 18, n. 77*.
Go >gle
J ^ Original from
UNIVERSITY OF WISCONSIN
200 ECCLESIASTICAL PROCEDURE
The value or effect of such an extrajudicial confes-
sion is not judical per se, because it is at the most only
half-proof, which does not free the plaintiff from the
burden of supplying the remaining half by other means.
It rests with the judge to weigh the value of such a
confession, and in doing so, he shall consider all the cir-
cumstances of the case. Circumstantial evidence may
often be helpfuL For instance, if a boy was for a long
time called the child of a certain man and acknowledged
as such by the putative father, even though the latter did
so only upon the insistence of the mother, the presumption
is in favor of his paternity, even if the mother afterwards
denies it under oath."
19 C 10, X, II. 1*
I Original from
/^jOO^K. UNIVERSITY OF WISCONSIN
p
CHAPTER II
WITNESSES AND TESTIMONY
As in the Roman,1 so in Canon Law, witnesses have
always played a conspicuous part The contestatio litis
already introduced witnesses, and in the course of the
trial, their testimony was instrumental in deciding the
case.
A witness is a person who has seen or knows a fact
about another person, and is therefore competent to give
evidence concerning the same. A testimony (attestatio)
is a more or less solemn statement, made in court, con-
cerning a fact seen or known by another, for no one can
be a witness in his own case. Our Code in two pre-
liminary canons regulates the admission of witnesses and
defines their obligation.
■
ADMISSION AND OBLIGATION OF WITNESSES
c
Can. 1754
Probatio per testes in quibuslibet causis admittitur,
sub iudicis tamcn moderation*:, secundum modum
praefinitum in canonibus qui sequuntur.
Can. 1755
-
§ 1. Testes iudici legitime interroganti respondere et
vcritatem fateri debent.
lSee Dig. 22, 5; Cod.. IV, 20.
301
1 Original fro ni
UNIVERSITY OF WISCONSIN
—
'-•-,
202 ECCLESIASTICAL PROCEDURE
§ 2. Salvo praescripto can. 1757, § 3, n. a, ab hac
obligations eximuntur:
i.° Parochi aliiquc sacerdotes quod attinet ad ea
quae ipsis manifestata sunt ratione sacri ministerii
extra sacramentalem conf essionem ; civitatum magis-
trates, medici, obstetrices, advocati, notarii aliiquc qui
ad secretum officii etiam ratione praestiti consilii
tenentur, quod attinet ad negotia huic secreto obnoxia ;
2.0 Qui ex testificatione sua sibi vel consanguineis
vel affinibus in quolibet gradu lincae rectae et in primo
gradu alineae collateralis infamiam, periculosas vexa-
tiones, aliave mala valde gravia obventura timent.
§3. Testes iudici legitime interroganti scienter
falsum affirmantes aut verum occultantes puniantur ad
nonnarn can. 1743, §3; eademque poena mulctentur
omnes, qui testem vel peritum donis, pollicitationibus
aut alio quovis modo inducere praesumpserint ad
falsum testimonium dicendum aut ad veritatem
occultandam.
Canon 1754 repeats the old saying of Arcadius * that
witnesses may be admitted in all trials, whether criminal
or civil. The same jurisconsult adds that the judge
should control the witness-stand and admit only as many
witnesses as are necessary to bring out the truth. This
is here expressed by the phrase " sub iudicis moderatione"
and the mode or manner is governed by the following
canons.
Witnesses, when called upon legitimately by the judge,
are obliged to answer and to speak the truth. For the
office of witness is one of public interest and affects the
public welfare. Therefore the ecclesiastical law per-
» L. 1, Dig. 22, 5; cfr. c. 13, X, testimony in criminal cases; see
II, 19. Some canonists denied that Reiffensluel, II, 21, n. 18 ff.
witnesses could be compelled to give
gle
v ,|y,, Original from
UNIVERSITY OF WISCONSIN
CANONS 1754-1755 203
nuts the judge to employ penalties in order to compel
persons to act as witnesses. But they must be warned
before penalties are inflicted.8 Besides, the judge must
question them lawfully, i.e., he must be competent and
summon them according to the rules which follow.
Not alt persons who are otherwise qualified, are to be
compelled to take the witness stand. The following are
excepted :
1. Confessors, who, according to can. 1757, § 3, n. 2,
are incapable of giving testimony in regard to matters
learned through sacramental confession.
2. All persons whose knowledge is privileged, or who
are bound by official secrecy, even though this be im-
posed only by reason of advice. This includes pastors
and priests who have knowledge of the matter in ques-
tion only by reason of, and in connection with, their
sacred ministry, even though such knowledge was gained
extra-sacramentally ; also civil magistrates, physicians,
midwives, lawyers (attorneys), notaries, and other per-
sons bound by official secrecy.* This law was made to
safeguard public trust and confidence in public or semi-
public persons.
3. All who would sustain damage if forced to give
testimony. Hence all persons who reasonably fear that
their testimony will render themselves or their relatives,
either by consanguinity or affinity in every degree of
the direct line and up to the first degree of the collateral
line, infamous, or cause themselves or the aforesaid rela-
tives dangerous vexations or other probable disadvan-
tage, cannot be forced to give evidence. As to infamy,
p
■"■
« C. 1-5, X, II, 21. statutes have been passed extending
4 This also in English law, ac- similar protection to the communica-
cording: to Blackstone, Comment., tions made to physicians and clergr-
* ' :- 17<>; Ibid., note 14, Coo ley men."
adds: "In several of the U. S.
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
204 ECCLESIASTICAL PROCEDURE
it is certain that no man can be compelled to prove his
own infamy or to answer any questions which may tend
to incriminate himself, or render him liable to punish-
ment.5 Such vexations and evil may be of the moral
or the material order.
The question may arise: Is a witness, who is other-
wise capable and not excused, bound to speak the truth,
if he has sworn to keep it secret (secretum commissum
et iuramento firtnatutn) ? The answer is, yes, because
such an oath was either rash or illicit, and therefore con-
trary to good morals. If the oath is publicly known,
the judge may publicly declare it null and void, in order
to prevent danger of scandal arising from presumptive
perjury.*
§ 3 of can. 1755 establishes the penal sanction against
perfidious witnesses. The judge who proceeds lawfully
in questioning witnesses, may inflict upon those who
knowingly tell an untruth, or conceal the truth, the same
penalties as are threatened in can. 1743, § 3, against the
parties who tell a lie. But the untruthfulness of the
testimony must be either notorious or juridically proved.7
The same penalty may be meted out under the same
condition to those who bribe witnesses or experts with
gifts and promises, or in any other way (for instance,
by threats or fear) endeavor to induce them to make
a false statement or to hide the truth. Thus in the
case of a divorce obtained by perjury or false testimony,
the bribed witnesses had to do penance and were no
longer admitted as witnesses.8 This, we are sorry to
say, still happens in connection with affidavits and other
testimony. Severe punishments were formerly visited
D
"\
6 Reiflenstuel, II, jo. n. 22 ff.; 7 C. 17, X. I, 11.
8«e also Blackstone-Cooley, I. e. 8 C. 5, X, II, 20.
« Reiflenetuel, II, ai, n. 43 ft.;
£*nti-L*itnCT, II, H, «. 7-
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
■
CANONS 175^-1757 205
upon higher and lower clerics who perjured themselves:
they were deposed, relegated to a monastery, or reduced
to the lay state.* Perjurers were excommunicated, or
declared infamous, and their testimony rejected.10 This
was done to safeguard the public welfare and the dig-
nity and authority of the courts.
Art. I
who may be witnesses
Can. 1756
Omncs possunt esse testes, nisi expresse a iure
repellantur vel in totum vel ex parte.
.
Can. 1757
§ 1. Ut non idonei repelhmtur a testimonies ferendo
impuberes et mente debiles.
§2. Ut suspecti:
i.° Excommunicato periuri, infames, post sen-
tentiam declaratoriam vel condemnato riam ;
a.° Qui ita abiectis sunt moribus ut fide digni non
habeantur ;
3.0 Publici gravesque partis inimici.
§ 3- Ut incapaces :
x.° Qui partes sunt in causa, aut partium vice
funguntur, veluti tutor in causa pupilli, Superior aut
administrator in causa suae communitatis aut piae
causae, cuius nomine in iudicio consistit, iudez eiusve
assistentes, advocatus aliique qui partibus in eadem
causa assistunt vel astitenuit;
a.0 Sacerdotes, quod attinct ad ea omnia quae ipsis
• C. 7, Diit. 3a
IOC 9. C. 3. Q. j; c 30, C. 24. q. j.
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
206 ECCLESIASTICAL PROCEDURE
ex conf cssione sacramentali innotuerunt, etsi a vinculo
sigilli soluti Bint ; imo audita a quo vis et quoquo modo
occasions conf essionis ne ut indicium quidem veritatis
recipi possum;
3.0 Coniux in causa sui coniugis, consanguineus et
afiinis in causa consanguinci vel afnnis, in quolibct
gradu lineac rectae et in primo gradu collateralis, nisi
agatur de causis quae ad statum civilem aut religiosum
personae spectant, cuius notitia aliunde habcri nequeat,
et bonum publicum exigat ut habeatur.
Can. 1758
Non idonei et suspecti audiri poterunt ex decreto
iudicis, quo id expedire declaretur; sed eorum
testimonium valebit tantumraodo ut indicium et
probationis adminiculum, et gencratim iniurati
audiantur.
The general rule is that all whom the law does not
debar, either entirely or partially, may be witnesses.
The law always supposes two qualities in a witness, viz.,
first, knowledge of the facts to which he was to bear wit-
ness, and, secondly, probity or uprightness of character.
The Code distinguishes a threefold class of persons
who are, or may be, excluded from the witness-stand;
they are the unfit, the suspected, and the incapable. The
former two classes may be said to constitute the rela-
tively unfit, and the last the absolutely unfit witnesses;
or, as the Code says, ex parte and in totunt.
The difference is explained in can. 1758, which de-
clares that the relatively unfit, i.e., the unfit and suspected,
may be admitted as witnesses if the judge considers that
for one reason or another they are necessary. How-
ever, their testimony has no value except as an indi-
'le
k ,|rt Original from
UNIVERSITY OF WISCONSIN
-v.
CANONS 1756-1^58 207
cation or a sign which may eventually lead to the estab-
lishment of complete evidence and to strengthen the proof
by corroborating the testimony of other witnesses. Rela-
tively unfit witnesses should, as a rule, be heard without
being put under oath (iniurati audiantur). Thus in the
case of procedure against presumptive heretics witnesses
are admitted who are or were the companions and friends
of the accused.11 Thus, also, perjurers are admitted
as witnesses by the S. Roman Rota, but their testimony
is treated as a mere indicium, more especially in causis
spiritualibus}1 Conspirators in the same case are gen-
erally repelled.1'
1. Unfit (non-idonei) to act as witnesses are boys
who have not yet completed the fourteenth, and girls
who have not yet completed the twelfth year of age
(impuberes). Also the feeble-minded (ntente debttes).
To this class belong idiots, mentally deranged persons,
and those who are under the influence of magic, or
hypnotism, or drugs, or intoxicating liquor. Those
who are merely defective in hearing, sight, or speech, are
not excluded, provided that the mental condition of this
class of non-idonei was defective at the time the fact oc-
curred or the act was committed, regarding which they
would testify.14 That they must be mentally normal
when they are called upon to give testimony goes with-
out saying.
2. Suspected witnesses are:
a) All excommunicated and infamous persons as well
llCfr. cc 5. 8, 6". V. 2. tempore probationix." Does that
12 Reg. Servandae, Aug. 4, 1910, probatio go back to the time the act
I 114, n. 1 {A. dp, S., II, 820}. was committed? If so, all right; but
is C. .' -', X, II, a?. if probalto is taken to mean the
14 A loose statement is that of witness-stand, the statement is am-
Santi-Leitner, II, 20, n. 15: " quando biguous; for if he was not fit to
autem testis adducitur ad proban- witness the act, he cannot testify
-
dum actum, eiut idortritai rtquiritur regarding it
jle
Original fro ni
UNIVERSITY OF WISCONSIN
208 ECCLESIASTICAL PROCEDURE
as perjurers against whom a declaratory or condemna-
tory sentence has been duly pronounced. Note that
vitandi and tolerati are equally included under excom-
municato and the Constitution of Martin V ("Ad evi-
tanda" 1418) cannot be applied in this case. As to
perjurers, a special penalty may be meted out to those
who perjure themselves outside of a trial court by the
Ordinary,15 who can deprive them of the right and capac-
ity to give testimony if he sees fit. In our case, either
the Ordinary or the judge would have to issue a declara-
tion to the effect that perjury was committed, and that
the perjurer will not be admitted as a witness; the law
permits the issuance of such a sentence.18
Concerning infamous persons observe that the infamy
implied is infamy in law as well as in fact, but the per-
sons in question must have sustained a condemnatory
or declaratory sentence to that effect according to the
penal code (can, 2293) of the Church. If the civil au-
thorities have pronounced sentence of infamy, the sen-
tence is valid under the ecclesiastical law if the Ordinary
approves it.17
A special class of infamous persons (infames infamia
iuris) are those who fight a duel and their seconds.
In all the above-mentioned cases mere notoriety is
not sufficient, but a formal sentence, either declaratory
or condemnatory, is required.18
b) Another class of " suspected " persons debarred
from testifying at ecclesiastical trials are those whose
character is such as to render them untrustworthy. This
D
IB Can. 2323. S., XXIII, 234 f.) ; but compare
ib Cfr. c. 9, C. 3, q. 5; c. 9, X, can. 2351, | 2; when this canon is
II, 20. verified, the lo-callcd Mensuren of
IT Cfr. c 17, C 6, q. 1; can. th« Auttrian and German student*
«93f I 3- render the participants infamous.
18 S. C. C, Aug. 9, 1890 (A. S.
ioi >gle
Original fro m
UNIVERSITY QF WISCONSIN
CANONS 1756-1758 209
a
is a rather vague rule, the application of which is left
to the judge. It appears to comprise the two classes
formerly18 known as criminosi and personae viles sive
pauperes. Criminals are here understood, not such as
are infamous in fact,80 because these are comprised under
the preceding number. However, as long as no declara-
tory or condemnatory sentence has been issued, even
those stained with infamia fact* may reasonably be in-
cluded here. Hence all persons who have lost the esteem
and respect of their fellowmen, and have not amended
their lives, are included in the phrase: "qui it a abiectis
sunt moribus" etc., also the class formerly styled per-
sonae pauperes et viles, because, as the Roman law 2l
says, paupers and persons of low condition are apt to
commit a crime" for filthy lucre's sake, or, in other words,
are more easily bribed than others. Yet this statement
needs some modification, for a poor man may be as hon-
est as a rich man, and if there is no proof of his having
been bribed on former occasions, he cannot justly be
excluded. It must not be forgotten that the Christian
religion has raised the lowly (slaves, serfs, and villains)
to a higher moral standard than the Roman law could rea-
sonably assume. But proved bribery would certainly be
sufficient to exclude one from the witness-stand.21
c) Still another class of persons excluded from testi-
fying at ecclesiastical trials consists of those who have
publicly fostered haired and enmity against the party
against whom they are called to testify. This exclusion is
based on common sense and has been generally adopted
by civil codes. This class of witnesses was not admitted
even in exceptional judgments, either civil or criminal,
and was excluded also in inquisitorial proceedings.2*
1»C. 54. X, II, ao; c. i, C 4. ** L- 3, Dig. 22, 5.
q. 2 et 3; see 1. 3, Oig. 22, 5 ** C. 9. X. II, ao.
20 Reiffenetuel, II, ao, n. 55. 2» C 3a, X, V, 3.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
■
-
210 ECCLESIASTICAL PROCEDURE
But there are three limitations established by the Code:
i) The enmity must be public, i.e., divulged, or at
least easily and readily known from the circumstances
of the case." Thus a former lawsuit or the threat of
bodily violence, blackmail, serious quarrels or fights
would be indicative of an existing enmity. This enmity
must furthermore be
(2) Deadly or grievous, which means that the enemy
would inflict a grievous mental, spiritual or physical evil
on his adversary if it were in his power to do so.
(3) The enmity must finally be limited to one of the
litigant parties, vis., the one against whom testimony
is to be given. For if the witness would be an enemy
to both the plaintiff and the defendant, his testimony
could not be rejected.26
3. The following are also incapable of being witnesses :
a) Those who are parties to the same cause or act in
the name of the litigant parties; such as tutors in the
case of their wards, superiors or administrators in the
case of their communities or pious foundations, judges
and their assessors, attorneys and others who assist or
have assisted their clients in the same case. All these
are presumed to be engaged in a common cause, and
therefore to be personally interested. Hence the maxim;
" No one may be plaintiff and witness or judge and wit-
ness " ** at the same time and in the same case. How-
ever, this, too, must be taken with a grain of salt. For
a prelate, either secular or regular, may testify in the
case of his own church or community, as long as he is
not plaintiff, defendant, or proctor ; canons and capitulars
may testify in civil matters concerning their chapters,
provided only the chapter as such, and no personal in-
24 Sec can. 2197, n. 1. 26 Cf r. c. 6, X, II, 20; Santi-
25 RciffenatucI, II, ao, n. 131 f. Lcitner, II, jo, n. 9.
jle
j ^ Griginalfrora
UNIVERSITY OF WISCONSIN
CANONS 1756-1758 2ii
terests, are involved." This applies to all instances
(first, second, last), through which the case may run.
b) Priests are rejected as witnesses in whatever con-
cerns knowledge gained through sacramental confession,
even though the parties have given them permission to
speak. This principle applies lo anyone who, whether
cleric or layman, has in any way acquired knowledge
through sacramental confession ; the testimony of such a
one cannot be accepted even as a presumptive indication
of truth. Thus bystanders at the confessional or chance
hearers of a sacramental confession cannot be admitted
as witnesses to a fact thus perceived or learnt.
c) By reason of natural affection, which may in-
fluence the judgment, the following are excluded: the
husband in case of his wife and vice versa, those who
are related to one another by consanguinity and affinity
in every degree of the direct line and in the first degree
of the collateral line, i.e., brothers and sisters, brothers-
in-law and sisters-in-law, whenever their relatives are
concerned.28
Yet even these are not entirely and in every case re-
jected; for if relatives wish to testify to the civil or re-
ligious state of the defendant, they may be admitted, pro-
vided the required testimony cannot be obtained other-
wise and the public weal demands that it be obtained.
Thus parents may testify to the baptism, or to the legiti-
macy, or to the clerical, religious or married state, or to
the age of their children; spouses are also admitted, for
they are supposed to know their pedigree better than
outsiders.28 However, no full proof could be construed
from the deposition of such witnesses,80 unless no other
ST RdffenttueJ, II, 20, 197 «• M C. 5, X, II, ao; c. 3i X, IV, 18.
88 CIr. c. 1, C 4, q. a ct 3; 0. SO Reiffenttuel, II, ao, n. 119.
"■
-
78, C. 11, q. f.
§le
£ * -» , -J,-. Original from
UNIVERSITY OF WISCONSIN
212 ECCLESIASTICAL PROCEDURE
proof were available and the public welfare required that
proof be secured.
Art. II
BY WHOM, HOW, AND HOW MANY WITNESSES ARE TO BE
INTRODUCED, AND WHO ARE TO BE REJECTED
I Can. 1759
§ 1. Testes a partibus inducuntur.
§ a. Possunt quoque induci a promotore iustitiae et
defensore vinculi, si id ad causam intersit.
§ 3. Sed ipse iudex, quoties agatur de minoribus
aliisve qui minoribus aequiparantur, et generatim
quoties publicum bonum id exigat, potest testes ex
officio inducere.
§ 4. Pars, quae testem induxit, potest eius examini
renunciare; sed adversarius postulare potest ut, hac
non obstante denuntiatione, testis examini subiiciatur.
Can. 1760
§ x. Si quis sponte compareat testxmonii reddendi
gratia, iudex potexit eius testimonium adxnittere vel
repellere prout expedire censuerit.
§ 2. Debet autem testem, qui se sponte obtulerit,
repellere cum comparere sibi videatur moras iudicio
nectendi causa vel iustitiae et veritati quoquo modo
officiendi.
This whole article might be simply inscribed: "De
Productions Testium," which is nothing else but a peti-
tion offered to the judge to admit witnesses of the party
who wishes to prove an action or exception.
ogle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
CANONS 1759-1761 213
1. The parties may introduce witnesses, who are re-
ceived after the issue in pleading.81
2. The promotor iustitioe and the defensor vinculi may
also call in witnesses if they deem them necessary.
3. The judge, too, may demand witnesses, if minors
and such as are compared to minors in law are con-
cerned in the trial, or whenever the public welfare re-
quires witnesses, as in matrimonial cases.
4. The party who produces a witness may forego the
privilege of examining him, although this does not affect
the right of the opponent to do so.
It may happen (can. 1760) that some one offers him-
self as a witness of his own accord. But since there
is room for suspicion as to the motives of such a testis
ultroneus, the judge is free either to admit or to reject
him. He must reject him if it becomes apparent that
the object of the spontaneous witness is simply to delay
the trial or to obstruct justice.
how witnesses are produced
Can. 1 761
§ 1. Cum probatio per testes postulatur, eorum
nomina et domicilium tribunali indicentur; praeterca
exhibeantur positioncs scu articuli argumentorum
super quibus testes sint interrogandi.
§ a. Si ne intra diem quidem peremptorium a iudice
praestitutum, obtemperatum fuerit, postulatio deserta
censetur.
If witnesses are demanded, their name and domicile
must be indicated and the questions or points upon which
they are to be examined must be handed to the tribunal.
IX C* r X, II, 6: " Vi lite nou eantistaUt no* proctdatur ad ititium
receptionem; " M« can. 1730.
oogle
v ,|r, Originalfrom
' UNIVERSITY OF WISCONSIN
-
214 ECCLESIASTICAL PROCEDURE
The obligation of making known these things, viz., the
names and points, lies with those who demand witnesses,
either the party, or others.81 If this obligation has not
been complied with within the time set by the judge, the
demand is quashed.
The litigant parties must make known to each other
the names of their respective witnesses before these are
examined; if this would prove a great inconvenience, the
manifestation may be made before the testimonies are
published (can. 1763).
The summoning of witnesses is done by the judge, who
issues a decree to that effect. The summons must be
served like the citation of the parties, as stated in canons
1725 sqq. When duly served, it entails the obligation
of appearing in court (can. 1766) ; in case of inability,
the judge must be informed of the reason. This rule
must be understood in the light of can. 1755, §2.
That there is a strict obligation cannot be denied, since
the law provides a punishment for refusal. § 2 of can.
1766 states that if a witness proves recalcitrant or dis-
obedient to the summons duly served, and fails to ap-
pear in court without a lawful reason, the judge may
inflict a suitable punishment and fine him for the amount
of damage caused to the parties by his unreasonable con-
duct. The same penalty may be inflicted upon those
who appear in court but refuse to answer lawful ques-
tions put to them, or to take the oath, or to sign the
witness papers.
No distinction is made on this head between clergy-
men and laymen. Clergymen, when summoned to the
ecclesiastical court, should set an example of obedience
to laymen.
Z2 Rtguiat S. A'. Rotae, Aug. 4, igio, 5 114, n. 3 {A. Ap. S., Ii,
8*0.
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
—
N
■
CANONS 1762-1763 215
A written excuse should be sent in if the witness sum-
moned is unfit, suspected, or incapable of testifying, so
that the judge may take note thereof in the acts.*8
THE NUMBER OF WITNESSES
Can. 1762
Iudici ius et obligatio est nimiam multitudinem
testium refrenandi.
Can. 1763
Partes debcnt sibi invicem nota facere testium
nomina antcquam eorurn exarnen inchoetur, aut, si id,
prudenti iudicis existimatione, fieri sine gravi dimcul-
tate ncqueat, saltern ante testificationum publica-
tionem.
In order that the trial be not unnecessarily prolonged,
the judge is empowered and obliged to restrict the num-
ber of witnesses (can. 1762). The admissible number
was fixed in one Decretal as fourty for each party.1*
However, the text may have another meaning, vis., as
regulating the number of times a witness may be pro-
duced. An ancient lav/ says that a witness may be pro-
duced only three times and that a special solemnity is
required for the fourth time.86 But this Decretal would
rather seem to refer to the examination of witnesses.
That is now regulated by can. 1781. Our text prob-
ably refers to the number of witnesses, which is left to
the judge to fix, except when there is question of " seven
83 It is quite true (see Messmer, counsel the intcrprctitioa given in
/. e„ p. us) that certain witnesses the text,
should not be called, but courtesy 8* C. 37, X, II, 20.
as well as despatch would seem to 86 C. 36, X, II, 20.
►ogle
Original from
UNIVERSITY OF WISCONSIN
■
216 ECCLESIASTICAL PROCEDURE
hand " testimony in case of non-consummation of mar-
riage; this the judge is not at liberty to curtail.**
which witnesses are to be excluded
Can. 1764
§ 1. Testes debent ex officio excludi, ai iudici liquid©
constet eos a testimonio ferendo prohiberi, salvo
pracscripto can. 1 758.
§ 2. Ast etiam, poatulante advcrsario, testes ex-
cludendi sunt, si iusta exclusionis causa demonstretur,
quae exclusio dicitur reprobatio persona* testis.
§ 3. Pars nequit reprobare personam testis quern
ipsa induxit, nisi nova reprobationis causa super-
venerit, quamvis possit eius dicta reprobare.
§ 4. Reprobatio testis fieri debet intra triduum
postquam testium nomina cum parte communicata
fuerunt, nee postca facta admittatury nisi a parte
demonstretur vel saltern iuramento amrmetur de-
fectum testis antra sibi notum non fuisse.
§ 5. Iudex autem reprobationis discussionem in
finem litis reservet, nisi contra testem stet praesumptio
iuris, aut defectus sit notorius vel statim ac facile
probari possit vel postea probari nequeat.
Can. 1765
Citatio testium fit ministerio iudicis, decreto interve-
nientc. et intimanda est testibus ad normam can. 17 15-
1723.
1. The judge must ex officio exclude from the witness-
stand all incompetent witnesses, those entirely incapable,
taSec ce. 5, 7, X, IV, 15; can. 1975.
Go >gle
I % Original from
UNIVERSITY OF WISCONSIN
CANONS 1764-1765 217
and the unfit and suspected, who may, however, be ad-
mitted to give presumptive evidence (can. 1758).
2. No witnesses may be admitted to whom the op-
ponent reasonably takes exception. The reprobatio per-
sonae testis is a kind of exception, but neither dilatory
nor peremptory in the proper sense, for it may be made
at any time before the publication of the testimonies
or depositions. But it properly turns about the person
of the witness whose unfitness, incapacity, etc., may be
objected to, according to can. 1757.
3. However, if a party has introduced a witness to
testify for himself, he cannot reject that witness, be-
cause the very fact of his producing him argues that
he is willing to accept him and approves of his quali-
fications. Only if a reason to object to the witness
developed after he was summoned, would the party
who produced him be allowed to put up an exception.87
Thus if a witness called and proposed by a party should
become that party's bitter enemy, or perjure himself,
or become infamous, the party could take exception to
him. Besides, although a witness was introduced by
the party himself, and no new reason for his rejection
has arisen, the producing party may contradict or re-
prove anything the witness may say against him, because,
although the party may know the person, he may not
know his intentions or what he is going to say.
4. However, the rejection of a witness or exception
to the same must be made within three days after the
names of the witnesses have been communicated by the
parties to each other and cannot be admitted afterwards
unless the party can prove, or at least affirms under oath,
that some defect in the witness, i.e., unfitness, incapacity,
etc., was unknown to him before.
ire. 1 1, xf n, ao.
jle
% ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
2i8 ECCLESIASTICAL PROCEDURE
5. The judge may put off the discussion of exceptions
taken to witnesses to the end of the trial. This is the
rule, which, however, must not be applied to certain ex-
ceptional cases, namely:
a) If the presumption of the law is against the wit-
ness; this would be the case if a witness were unfit, as
defined in can. 1757, § 3 ;
b) If the defect in a witness is notorious and could
easily and immediately be proved, for instance, by pro-
ducing the sentence of excommunication issued against
a vitandus:
c) If the defect could not be proved afterwards, i.e.,
after some delay, for instance, if the witness were dan-
gerously ill or about to depart for a distant country.88
Art. Ill
the oath taken by witnesses
Can. 1767
§ 1. Testis, antequam testimonium edat, iusiuran-
dum praestare debet de tota ac sola veritate dicenda,
salvo praescrtpto can. 1758.
§ 2. Partes earumve procuratores praestationi
iurisiurandi testium assistere possunt, salvo prae-
acripto can. 1763.
§ 3. Testibus, si de iure partium mere private
agatur, potent iusiurandum, utraque parte consen-
tientc, remitti.
■
§ 4. Sed etiam cum iusiurandum a teste non
exigitur, iudex testem commonefaciat gravis obliga-
tionis, qua semper tenetur, veritatem dicendi.
g
AS Reiffcnstucl, XI, *q, n. 546 ff.
►ogle
£ " ^ * +\*% Original from
UNIVERSITY OF WISCONSIN
■
pi
CANONS 1767-1769 219
Can. 1768
Testes, tametsi iusiurandum praestiterint de
veritate dicenda, poterunt nihilominus pro prudenti
iudicis arbitrio, absoluto examine, adigi ad iusiuran-
dum de veritate dictorum sive circa omnes positionum
articulos sive circa aliquos tanturn, quoties gravitaa
negotii et editae testificationis adiuncta id postulare
videantur.
Can. 1769
Testes adigi etiam iureiurando possunt ad secretum
servandum circa propositas interrogationes dataque
interrogationibus responsa, usque dum acta et allegata
publici iuris riant; ixno etiam perpetuo ad normam
can. 1623, § 3.
1. All witnesses, except the unfit and suspected, must
swear that they will tell the whole truth and nothing
but the truth. This so-called iuramentum veritatis was
always considered so necessary that the saying is: "A
witness not sworn proves nothing." 8B The oath is to be
administered before the examination, generally by the
judge or his auditor.40
If the litigants or their proctors wish to be present at
the ceremony, they are at liberty to do so, provided they
come before the examination begins. But no plea of
exception can be construed from their voluntary or in-
voluntary absence.
The phrase: " de tola ac sola veritate/' must be un-
derstood in the sense that they bind themselves to answer
truthfully the questions proposed, concealing nothing and
asserting no falsehood. But they are not bound to say
more than the questions imply. At least this is the pres-
i» Cfr. cc. io, 39, 51, X, II, ao. 40Cfr. Mesimer, /. c, p. 1x6.
"■
ogle
% ,|,, Original fro m
UNIVERSITY OF WISCONSIN
220 ECCLESIASTICAL PROCEDURE
ent practice of courts.41 But the oath includes another
element, viz., that they speak the truth for motives of
truthfulness, that they harbor no sinister intention, and
that they have not been bribed.4*
Both parties consenting, this oath may be omitted in
all private trials where the public weal is not at stake.
The oath is administered in favor of both parties, and
hence may be remitted, without the intervention of the
judge, by both. However, the text clearly states that
this may be done only when private interests are at stake.
In matrimonial cases, therefore, when the validity of a
marriage is threatened, and in criminal and beneficiary
matters the oath may never be omitted.48 When the oath
is not administered to a witness, the judge shall not omit
to warn him of the grave obligation incumbent upon
him to tell the truth.
Concerning the formalities of the oath see can. 162 1.
2. There is, as can. 1768 points out, another oath,
called de veritate dictorum, which is administered after
the examination, even in cases where the oath de veritate
dicenda has already been taken. This oath refers either
to all the answers that have been given to the questions
proposed, or only to certain important questions. The
judge may demand the itisiurandutn de veritate dictorum
whenever, according to his prudence and practical in-
sight, the importance of the matter or the circumstances
of the testimony require it. This is a new regulation
in ecclesiastical jurisprudence," which was made neces-
sary by intricate cases and to control the testimony of
witnesses who vacillate under cross-examination.
■"■
4i Reiffenstuel. IT, ao, n. 466. oatha, which, howerer. were com-
42 C. 47, X, II, ao. prised in one, de veritate d-.ccnda:
43 C. 39, X, II, ao ; Reiffenstuel, but the Reguloe S. R. R. enumerate
II, jo, n. 485 f- these two oathi; Aug. 4, 1910, | 114,
44 C. 5. X, II. ao mentions two n. a {A. Ap. S., II, 8ao).
jle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-'
■
9
CANON 1770 221
3. The witnesses may be bound by oath to keep secret
the questions proposed and the answers given, until the
whole proceedings are published, or forever, if the good
name of others is endangered or quarrels and scandals
are to be feared from a divulgation (can. 1623, § 3),
as is generally the case in criminal procedure and where
persons of the " weaker sex " are concerned.*5
Art. IV
THE EXAMINATION OF WITNESSES
The Code now proceeds to lay down the rules for the
examination of witnesses: where and in whose presence
they must be examined, the character and substance of
the interrogations and answers, how they must be taken
down by the clerk, and, finally, repeated questioning.
the place of examination
Can. 1770
§ 1. Testes sunt examini subiiciendi in ipsa tri-
bunalis sede.
§ a. Ab hac generali regula excipiuntur :
i.° S. R. E. Cardinales, Episcopi et personae
illustrcs quae suae civitatis hire eximuntur ab obliga-
tione comparendi coram iudice testificandi causa: ii
omnes eligere ipsi possunt locum ubi testificentur, de
quo iudicem certiorem facere debent;
a.0 Qui morbo aliove corporis vcl animi impedi-
mento aut conditione vilae, uti moniales, tribunalis
sedem adire nequeunt; ii domi audiendi sunt;
3-c Qui extra dioecesim degentes, in dioecesim
reverti et ad tribunalis sedem accedere sine gravi in-
« Vmhdct, /. ft. p. 116.
jle
£ * ^ , %\s* Original from
UNIVERSITY OF WISCONSIN
■
Q
222 ECCLESIASTICAL PROCEDURE
commodo nequeunt; ii audiendi sunt a tribunal! loci
in quo commorantur ad normam can. 1570, § 2,
secundum interrogationes et instruction's a causae
iudice transrnissas ;
4. ° Qui in diocccsi quid cm commorantur, sed in loci 5
ita dissitis a tribunalis scdc, ut sine gravibus impensis
neque ipsi iudicem adire, neque a iudice adiri possint.
Hoc in casu iudex debet propiorem aliquem sacerdotem
dignum et idoneum deputare, ut cum assistcntia
alicuius, qui actuarii munere fungatur, examen horum
testium perfkiat, transmissis pariter eidem interroga-
tionibus faciendia, datisque opportunis instructionibus.
The general rule is that witnesses must be examined in
court, i.e., on the witness-stand. From this rule the
legislator exempts the following persons:
i.° Cardinals, bishops and illustrious personages,"
who, by virtue of their civic prerogatives, are exempt
from appearing in court; all these may choose a place
convenient to them for giving testimony, but should in-
form the judge to that effect.
2.0 All those who are detained from personally ap-
pearing by sickness or any other physical or mental im-
pediment, or by their state of life (for instance, cloistered
nuns and the inmates of state asylums). These may
give testimony at their respective residences, and the
judge may send the notary or auditor or two deputies
to receive their deposition.*'
3.0 Those who dwell outside the diocese and cannot
conveniently return and appear in court. Their deposi-
4ft The iliustres held first place ful gentlemen. To the class of
In the official hierarchy of the iliustres belonged the thirteen cabi-
(reorganized) Roman empire, which net ministers of th« Wert; see
was composed of iliustres or Right Hodgkin, Italy and ktr Invaders,
Honorable, of spectabilet or Honor- 189a, and ed., Vol. I, p. 603 f.
able, and of clarissimi or Worship- ST RcifTenstuel, II, ao, n. 500.
jle
Original from-
UNIVERSITY OF WISCONSIN
CANONS 1771-1772 223
- •
lions, according to can. 1570, § 2, must be received by the
local tribunal in accordance with the formulary of in-
terrogation and the instructions sent to it by the judge
in case.
4.0 Those who live in the diocese, but so far away
from the court that it would be expensive for them to
come to court, or for the judge to reach them. In such
cases the judge shall appoint a worthy and fit priest
who lives near the place, to take the testimony with
the help of another person, who may act as clerk. To
that priest must be forwarded the interrogatories and
such instructions as may be deemed necessary.
IN WHOSE PRESENCE THE WITNESSES ARE TO BE
EXAMINED
Can. 1771 J
Examini testium partes assistere nequeunt, nisi
iudex eas admittendas censuerit.
Can. 1772
§ 1. Testes seorsim singuli examinandi sunt.
§2. Prudenti tamen iudicis arbitrio relinquitur post
edita testimonia testes inter se aut cum parte conferre,
seu, vulgo, confrontare.
§ 3. Id autem fieri poterit si haec omnia simul con-
currant, scilicet:
i.° Si testes inter se aut cum parte in re gravi et
causae substantiam attingente dissent iant ; i
2.0 Si nulla alia facilior ad veritatem detegendam
suppetat via ; *
3.0 Si scandali vel dissidiorum periculum non sit ex
collatione pertimescendura.
. - ■ • . j
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
224 ECCLESIASTICAL PROCEDURE
Can. 1773
§ 1. Examen fit a iudice, vel ab eius de legato aut
auditore, cui assistat oportet notarius.
§ 2. In examine interrogationea non ab alio quam a
iudice vel ab eo qui iudicis locum tenet, testibus
deferendae sunt. Quapropter si partes, vel promoter
iusritiae, vel defensor vinculi examini interaint et novas
interrogationes testi faciendas habeant, has non testi,
aed iudici vel eius locum tenenti proponere debent, ut
«as ipse deferat.
1. The parties to the trial are not allowed to be pres-
ent when the witnesses are examined, in order that they
may not be influenced or disturbed. However, the judge
may give them permission to assist, especially if only ques-
tions of patrimony or money are at issue.*8
2. Each witness must be examined separately. This
rule must not be interpreted so strictly as if the validity
of the examination were impaired in case of its non-
observance." If the judge deems it prudent, the wit-
nesses may be confronted one with another and with
the parties, to compare their statements. But such con-
frontation is permitted only when the following condi-
tions concur :
a) If the witnesses disagree among themselves, or
with the party they testify for, in a serious and sub-
stantial point;
b) If, in the opinion of the judge, no better expedient
can be found to discover the truth;
c) If no danger of scandal or quarrel is likely to arise
from the comparison of the various statements.
<
4" Keg. S. R. Roiae, Aug. 4. "9*0, June it, 1880, n. 17; MeMcner, I. c,
I 114, n. 6 (A. Af. S., II, 811). p. 117-
4eIsstructio S. C. EE. et RR.,
oogle
k .,1,., Original from
UNIVERSITY OF WISCONSIN
CANONS I774-I77S 225
3. The examination of witnesses must be performed
by the judge or his delegate or auditor, assisted by the
notary.
Here it may not be amiss to repeat what the Holy
Office60 enjoined concerning the examination of women
who have been " sollicitatae in conpssione." They may
be heard in the sacristy or in some other unsuspected
place, in the presence of the appointed judge and a clerk
(both ecclesiastics). Each sollicitata must be examined
cautiously and separately, not in company with others,
because the secret is inviolable.
The interrogatories or questions are to be put to the
witnesses by the judge or his locum tenens. If the par-
ties, or the fromotor ittstitiae, or the defensor vinculi
should wish to ask other questions, these questions must
be proposed to the witness through the judge or his
delegate, not directly.
nature of the interrogatories and answers
Can. 1774
Q.
Testis primo interrogari debet non modo de general-
ibus personae adiunctis, hoc est, de nomine, cognomine,
origine, actate, religione, conditionc, domicilio, sed
etiam quae ipsi cum partibus in causa sit necessitudo;
deinde deferendae sunt interrogationes quae causam
ipsam resptciunt et sciscitandum unde et quomodo ea
quae assent, habeat cognita.
■
Can. 1775
Interrogationes breves sunto, non plura simul
complectentes, non captiosae, non subdolae, non sug-
BOS. 0., July ao, 1890 {Coll. P. F., n. 173a).
§le
( * ^ .. ils» Original fro ni
UNIVERSITY OF WISCONSIN
■
226 ECCLESIASTICAL PROCEDURE
gerentes responsionem, remotae a cuiusvis offensione
et pertinentes ad causam quae agitur.
Can. 1776
§ z. Interrogationes non sunt cum testibus an tea
communicandae.
. § 2. Attamen si ea quae testificanda sunt ita a
mernoria sint remota, ut nisi prius rccolantur, ccrto
afftrman nequeant, poterit iudex nonnulla testem
praemonere, si id sine periculo fieri posse censeat.
Can. 1777
Testes oretenus testimonium dicant, et scriptum ne
legant, nisi de calculo et rationibus agatur; tunc enim
adnotationes, quas secum attulerunt, poterunt con-
sul ere.
1. The questions to be proposed are partly general and
partly special.
a) Of a general character are the preliminary inquiries
regarding the personal circumstances of the witness.
Hence, as in our courts, he must be asked his full name
(nomen et cognomen), parentage, age, religion, condi-
tion or profession, domicile or residence, and also about
his connection with the parties in the case.
This latter question will lead to the discovery of blood
relationship or any interest the witness may have in the
case. Hence the witness must be asked : Do you know
the parties? If so, how long? What is your connec-
tion with them ? etc.
b) The special questions touch the merits of the case.
The first is as to the source of knowledge (unde) and
how it was obtained. The judge is entitled to know the
gle
( * ^ ^ -A,-* Original from
UNIVERSITY OF WISCONSIN
CANONS 177^-1777 227
source of one's knowledge, and if he demands it, the wit-
ness is bound to answer.51 Then the judge shall ask the
witness whether he has direct knowledge of the fact he
is to testify to. If he answers yes, he must be looked
upon as a first-class witness, or a witness de sctentxa,
who has witnessed the fact or perceived it immediately
through his senses, for instance, if he has seen homicide
or adultery committed.
If the witness has no immediate or direct knowledge,
then he is only an indirect witness, and the question
quomodo (how he has obtained his knowledge) must
be put.
a) He may say: "This is my opinion," and there-
fore testify de sua crcdulitate, or what he believes to
be a fact or a conclusion from conjectures and circum-
stantial evidence, the weight of which is enhanced by
presumption."
b) Or he may say that he had heard a report of the
fact or incident from trustworthy persons. Witnesses
of this class are called testes de auditu and much depends
on from how many they heard the report ; for if the report
or story was spread by one and the same person, this
amounts only to one witness, even though forty others
repeat it from hearsay. Witnesses de auditu can be
admitted only if the original reporter or narrator is dead,
absent, or not to be found.™
c) Finally there are witnesses who can only testify
that a rumor was spread and is believed by the people ;
these are testes de jama. Rumor itself merely creates
presumption if it is spread by and among sober and
81 Reiflenstuel, II, ao, n. 511 f. where eighty witnessei testified
MCfr. o ta, X, II, 33; see this against a pastor, but all had heard
Commentary, Vol. V, p. 371. the story from an old woman; the
88 Ct r. c. 47, X, II, 20; tee the pastor was declared innocent.
stated under Title XXXI,
>Ie
/".,., j„ Original fro m
UNIVERSITY OF WISCONSIN
228 ECCLESIASTICAL PROCEDURE
prudent men. Therefore the origin of the rumor has
to be inquired into, and if its authors cannot be found
out, the rumor must be rejected. The vox populi some-
times is, not vox Dei, but faex populi.
2. The questions asked must be brief and simple, i.e.,
not combining many things in one. The judge is not
allowed to make use of captious, cunning or suggestive
questions, to ensnare or compel the witness to answer
according to a preconceived idea. This would em-
barrass the witness and curtail his freedom. Besides
-
the judge must abstain from offensive questions and
from asking questions which have nothing to do with
the case.
, 3- The questions on which a witness is to be cross-
examined must not be communicated to him beforehand,
M.j before he has been sworn and put on the witness-
stand ; for this might lead to collusion and also to mental
restrictions when giving oath. However, the judge may
intimate beforehand some questions which depend on the
memory and could not easily and truthfully be answered
without due preparation, because the facts happened a
long time ago, and so forth. But the danger of fraud
or collusion must always be avoided as effectively as
possible.
4. The answers or statements of the witnesses must
* be made orally, not read off a paper. Yet if numbers
or dates or calculations of a mathematical nature are
involved, the witness may make use of notes.
answers to be put in writing and read
! Can. 1778
Responsio ex continent! redigenda est scripto ab
actuario non solum quod attinet ad substantial^ sed
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
■
9
CANONS 177&-1780 229
etiam ad ipsa editi tettimonii verba, nisi iudcxv attenta
causae exiguitate, satis habeat unam depositionis
substantiam rcferri
Can. 1779
Actuarius in actis mentionem faciat de praestito,
remisso aut recusato iureiurando, de partium
aliorumque praesentia, de interrogationibus ex officio
additis et generatim de omnibus memoria dignis quae
forte acciderint, cum testes excuttebantur.
Can. 1780
§ 1. Testi, antequam ab auditorio disccdat, debent
legi quae actuarius de iis quae ipse viva voce testatus
est, scripto redegit, data eidem testi facilitate addendi,
supprimendi, corrigendi, variandi.
§ a. Deaique actui subscribcre debent testis, iudex
et notarius.
1. All answers must be immediately set down in writ-
ing by the clerk, not only substantially, but verbally,
as given, unless in the view of the judge the matter is
of small importance, in which case a summary note would
suffice.
2. The same clerk (actuarius) must also state in the
minutes whether the oath was taken, refused by, or re-
mitted to, the witness, whether the parties were present,
whether other questions had been officially asked, and,
generally, everything that is worth putting on record,
as uttered during the examination of the witness.
3. Before the witness leaves the stand the minutes of
his testimony must be read to him, and he may, if he
chooses, add, suppress, correct, or change any statement
( %r\nnl*> Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
■
pi
230 ECCLESIASTICAL PROCEDURE
he has made. Afterwards this is no longer permitted.
Then the witness must sign his name to his deposition
as recorded by the clerk, and the judge and notary should
also sign their names, after that of the witness.
repeated examinations
Can. 1781
Testes, quamvis iam excussi, poterunt, parte
postulante aut ex officio, antequam acta seu testifica-
tion's publici iuris fiant, denuo ad examen vocari, si
iudex id necessarium vel utile ducat, dummodo tamen
omnis collusionis vel corruptelae adsit periculum.
: Under can. 1762 it was remarked that repeated ex-
aminations of the same witnesses are permissible. The
old law M permitted a tertia and quarta productio testium,
but no more. The Code fixes no limit. Therefore, if
one of the parties insists, or the judge deems it necessary
or useful, a witness may be examined repeatedly, provided
no collusion or bribery is to be feared. However, in
order not to prolong the trial, such repetition should be
permitted only before the testimonies have been officially
ipade known {antequam acta seu testificationes publici
iuris Hani).
• • Art. V
■
\ PUBLICATION OF TESTIMONIES AND THEIR REJECTION
,';As soon as the witnesses in a case have been heard, or
the parties concerned have declared that they have no
more witnesses to produce, the testimonies may be pub-
lished. This means that the answers or depositions of
WC, 37, x, n, ao.:
G Original from
OOglt UNIVERSITY 0FWI5C0NSIN
CANON 1782 231
the witnesses given to the questions proposed may be
publicly read. When this is to be done and what effect
it produces, especially as to exceptions and the calling-in
of witnesses, is the subject of Article V.
when the testimony may be published
Can. 1782
§ x. Cum partes aut earum procurators examini non
interfuerunt, testimonia statim post absolutum
omnium testium examen poterunt, decreto iudicis,
cvulgari.
§ a. Sed poterit iudex differrc tcstimoniorum evulga-
tionem in tempus quo cetera probationum capitula
fuerint absoluta, si id e re existimet
1 If the parties or their proctors (attorneys) were not
present at the examination, publication of the testimony
may be made immediately after all the depositions
have been taken down. It makes no difference whether
the absence was voluntary or per contumaciam. In any
case, for contempt virtually equals presence, the publica-
tion may be insisted upon by the other party, or by the
judge, who should advise the litigants to renounce further
examination if the points have been sufficiently cleared up.
The judge must issue a formal decree ordering the de-
positions published. He himself or a notary shall read
them to the parties present. However, two things must
be observed:
1. This publication is not essential to the validity of the
acts, hence our text simply says: "poterunt evuigari"
they may be published ;
2. The judge may, if he thinks it advantageous, delay
the publication until all the proofs have been gathered.
>Ic
£ " ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
233 ECCLESIASTICAL PROCEDURE
exception to depositions
Can. 1783
■
'.<-.
Post testificationum evulgationem:
i.° Ccssat facultas reprobandi testis personam,
excepto casu de quo in can. 1764, § 4;
a.° Sed est ius reprobandi testes sive quod attinet ad
modum examinis, cum scilicet obiiciuntur regulae iuris
in examine peragendo neglectae, sive quod attinet ad
testificationes ipsas, cum nempe testimonia im-
pugnantur de falso aut de variatione, contradictione,
obscuritate, defectu scientiae et similibus.
Can. 1784
Reprobationem iudex decreto suo reiiciat, si earn
futili inniti fundamento aut ad retardandum iudicium
factam animadvertat.
Can. 1785
Si iudicium reprobationis admittatur, iudez brevem
terminum parti postulanti praestituat ad probandam
reprobationem, et deinde procedat uti in aliis incidenti-
bus causis.
I. One of the effects of the publication of the testimony
is that neither party can any longer object to the witnesses
except in the case mentioned under can. 1764, § 4. How-
ever, although the witnesses cannot be rejected, their de-
positions may be attacked for two reasons ;
a) That the examination was not conducted legally;
b) That the testimony contains falsehoods, contradic-
tions, obscurities, etc., or betrays a change or defect of
knowledge. Concerning this second point more will be
G I Original from
OU^IL UNIVERSITY QFWISCONSIN
CANON 1786 233
said under Art. VII. As to the first point, the exceptions
may be based on the assertion that the judge was not
competent, or on any point laid down in Art. IV.
2. However, if the judge is aware that these exceptions
are futile or only intended to protract the trial, he may
issue a decree rejecting the exceptions.
3. If, on the other hand, exceptions are admitted, the
judge shall set a brief term for proving them and in the
meanwhile proceed as in other incidental questions.
repeated calling of witnesses
Can. 1786
Ppst evulgatas tcstifkationes, testes iam auditi
denuo super iisdem articulis ne interrogentur, neque
novi testes admittantur, nisi caute et ex gravi ratione
in causis quae nunquam transeunt in rem iudicatam ;
ex gravissima ratione in ceteris; et in quolibet casu
omni fraudis et subornationis periculo remoto, altera
parte audita, et requisito voto promotoris iustitiae vel
defensoris vinculi, si hi iudicio intersint; quae omnia
iudex decreto buo definiat.
£
The general rule is that after the publication of the
testimony the witnesses should not again be asked the same
questions which they have already answered,55 and that
no new witnesses should be introduced. By consenting
to the publication the witnesses are supposed to have re-
nounced further examination. Note well that the same
questions only are forbidden. If a new and necessary
question would occur, for instance, concerning a baptismal
record which could not be obtained before, or a lately
found privilege,56 this rule would not apply.
B9 Cc. 19, 25, X, II, 20. BO Cc. 19, 42, X, II, 2«.
G| , Original from
OOglt UNIVERSITY QFWI5C0NSIN
234 ECCLESIASTICAL PROCEDURE
There are two exceptions to the rule just stated:
i. In cases which never pass into the adjudged stage,
witnesses already examined and new ones may be intro-
duced cautiously and for a grave reason. Matrimonial,
clerical, and religious trials never become res iudicatae*T
and in all such cases a grave reason is all that is required
to admit of repeated examination. Such a reason would
be if testimonies had been lost," or also, as stated above,
if new proofs could be furnished, or by the common
consent of the litigants.
2. In certain other cases, e.g.t if the reason is gravis-
sima, as, for instance, if malice or negligence on the part
of the judge prevented a full examination, or if one of
the witnesses was convicted of perjury.69
But it is required that everything be done cautiously,
so that no danger of fraud or subornation enters the
new hearing. Besides, the other party must be heard, and
the promoter iustitiae and defensor vinculi must be asked
for their opinion, if they are present; and, finally, the
judge must issue a decree to that effect, mentioning all
important details.
Art. VI
compensation of witnesses
Can. 1787
§ 1. Testis ius habet ad petendam compensationern
impensarum, quas sustinuerit ratione itineris et com-
morationis in loco iudicii, et ad congruam indemni-
tatem pro interruptione sui negotii vel operis.
§ 2. Iudicis est, auditis parte ac teste, et, si opus sit,
ot See can. 1902 f. « See cc 9, 48, X, II, 20; Reif-
58 C. 15, X, II, 19. fenituel, II, 20, n. 156 f.
1 loogle
Original from
UNIVERSITY OF WISCONSIN
■
nesses.
CANONS 178&71789 235
etiam peritis, taxare indemnitatem et impensas tcsti
solvendas.
Can. 1788
Si intra peremptorium terminum a iudice praestitu-
tum congrua pecuniae quantitas de qua in can. 1909,
§ 2, ab eo qui testes inducere vult deposita non sit, is
tcstium examini renuntiasse censeatur.
The Roman as well as ecclesiastical law,*10 from which
modern civil codes hardly differ in this matter, demand
that witnesses be proportionately recompensed for the
expenses incurred.
In reckoning the sum, the distance from which they
came (mileage), living expenses, and indemnity for in-
terrupted business or work must be considered. The
judge shall adjudge the expenses and indemnities. He
should, however, hear the parties and witnesses, and
may also, if necessary, consult experts as to the amount
to be allowed. The judge may also demand that the
sum for all these expenses be deposited with the clerk
or that security (bail) be given guaranteeing payment.01
If the parties refuse to comply with this demand within
the term peremptorily assigned, they are supposed to
have renounced the examination of the respective wit-
weight of testimonies
Can. 1789
. In aestimandis testimonies iudex prae oculis habeat:
i.° Quae conditio sit personae, quaeve honestas et
an aiiqua dignitate testis praefulgeat;
«oCfr. c. 3, C. 4, q. 2 et 3. si Can. 1909, 8 2.
►ogle
( * ^ ^ -*\*% Original from
UNIVERSITY OF WISCONSIN
■
236 ECCLESIASTICAL PROCEDURE
3.0 Utrum de scientia propria, praescrtim de visu ct
auditu proprio testificetur, an de credulitate, de fama,
aut de auditu ab alii s ;
3.0 Utrum testis constans sit et firm iter sibi
cohacreat, an varius, incertus, vel vacillans;
4.0 Denique utrum testimonii contestes habeat, an
sit singularis.
Can. 1790
Si testes inter se discrepent, iudex perpendat utrum
edita ab eis testimonia sibi invicem adverscntur, an
sint dumtaxat divcrsa vel adminiculativa.
Can. 1791
§ 1. Urdus testis deposit io pic nam fidem non facit,
nisi sit testis qualificatus qui deponat de rebus ex
officio gestis.
§ 2. Si sub iuramenti fide duae vel tres personae,
omni exceptione maiores, sibi nrmiter cohaerentes, de
aliqua re vel facto in iudicio testificentur de scientia
propria, sufneiens probatio habetur; nisi in aliqua
causa iudex ob maximam negotii gravitatetn, vel ob
indicia quae aliquod dubium de veritate rei assertae
ingerunt, necessariam censeat pleniorem probationer!}.
Now the legislator proceeds to weigh the testimonies
and to state the effect of the evidence after it has been
duly pondered. Let it be said right in the beginning,
however, that these criteria are tentative or relative
rather than absolute and not entirely conclusive in every
instance. Besides these characteristics cannot be over-
looked by the judge, because they are based on common
and long-standing practice. The criteria or momenta
by which the weight of evidence is measured, may be
>Ie
% ,|,, Original from
UNIVERSITY OF WISCONSIN
CANONS 1790-1791 337
reduced to four: moral, mental, material, and numerical.
1. The moral weight refers to the person of the wit-
ness; hence the text says that his condition, character,
and dignity should be considered. Conditio here means
status, ecclesiastical or lay, and, in a layman, vocation.82
But it also includes character as a witness (cfr. can.
*757» § J> §3)- Honestas refers properly to the moral
quality of the person, as stated in can. 1757, §2. The
testimony of a citizen whose moral reputation is beyond
suspicion and that of one who has a bad name, are mani-
festly of unequal value.
Dignitas refers,** not only to ecclesiastical, but also
to civic dignity. The assumption is that dignitaries are
less likely to perjure themselves than ordinary mortals.
2. Mental or intellectual weight must be measured
according to can. 1774. For direct witnesses, who tes-
tify to what they have personally seen or heard — also
called eye-witnesses — are certainly to be preferred to
indirect witnesses, who merely express their opinion or
repeat what they have learned from hearsay or rumor.
3. The material weight of the testimony lies in the
mode in which it is produced. Much depends on
whether a witness is steady and consistent, or wavering
and contradictory. A testis varius is one who makes
different statements on the same subject in different
stages or instances of a trial. A testis incertus, also
called contraries ; is one who makes contradictory answers
in the same instance or stage of trial. Vacillans may
refer to the wavering, uncertain mode of answering,
which seems to indicate some doubt or unbelief. Such
a testimony should not be accepted at all.04 If, how-
■j
62 The testimony of slaves was «C 3, C. 4, q. a et 3: utrum
formerly admitted only [f given un- decurio an plebtiux sit
der torture; c. 7, C. a, q. 1: cor- 64 Reiffenttuel, II, ao, n. jfy.
ponU itiscussione.
ogle
Original fro ni
UNIVERSITY OF WISCONSIN
238 ECCLESIASTICAL PROCEDURE
ever, trembling- or sweating is a mere concomitant or
sign of a nervous disposition, and does not create a
positive doubt, the testimony may be accepted, if fortified
by conjectures or other proofs. A testimony called con-
trary, i.e., one which contradicts another statement of
the same witness, cannot be admitted, unless it admits
of correction. Of two contradictory answers given to
the same question it must be held that, as a rule, the first
stands, unless the error is immediately corrected and re-
called, and the second appears more probable.86
4. The numerical weight of a testimony depends on
whether several witnesses agree in their depositions or
whether they differ from one another. Witnesses whose
testimony differs one from another, are called singulare$.
If testimonies agree, their weight must be judged ac-
cording to can. 1791, §2. The depositions of single
witnesses are to be weighed according to can. 1790, to
wit:
a) If they conflict with one other, the general rule
must be applied that they prove nothing; because a
single witness is but one witness, and in the case of con-
flict one excludes the other; this is called singularitas
obstativa**
b) If the witnesses testify to facts or circumstances
which, though true themselves, have no connection with
one other, their testimony is called diverse ( singularitas
diversificativa) . However, it is evident that they must
bear on the case on trial, otherwise they would be
irrelevant. Thus, for instance, the case of sollicitatio
mentioned in the Constitution of Gregory XV, is re-
ferred to one and the same priest, whom diverse persons
88 Ibid., a, 326 t. II, 2ot n. 21 ; Messmer, /. c, p.
86 C. 9. X, II, 19; Santi-Leitner, io6f.
v ,1,., Original from
UNIVERSITY OF WISCONSIN
>gle
CANONS 1790-1791 239
accuse of different crimes.*1 Such testimonies are ac-
cepted, if circumstantial evidence corroborates the de-
positions.
c) If the witnesses testify to facts or circumstances
which bear on one another, like cause and effect, their
testimony is called adminicular (singularity adminicular
two). This is the weightier, the more witnesses report
the same fact or circumstance, and may be admitted
as full proof, at least in civil matters (in criminal cases
it would not be accepted fully).68
The numerical weight of witnesses whose evidence is
concordant, neither varied nor wavering, is stated in can.
1791, according to the old rules, thus:
a) One witness alone does not afford full proof, be-
cause even an upright witness may err in regard to facts
and be prompted by personal motives. There is, how-
ever, an exception to the rule stated in our text: one
qualified witness may furnish full proof when he makes
deposition concerning acts which he himself performed
ex officio. This is called qualification. Thus experts,
as described in the following chapter, official couriers,
public notaries, court clerics, are qualified witnesses,
whose testimony concerning their official acts is accepted
as full proof.*9
b) The testimonies of tivo or three persons is con-
sidered full or sufficient proof,
a) If they have been duly sworn;
b) If they are beyond suspicion and exception;
c) If their testimony is consistent, and
d) If they make judicial (not extrajudicial) deposi-
97" Univern Dominici," Aug. 90, « Sec cc. 10, J3, X, II, ao; c
iSaa, I 5. 13. X, II, 26.
KC. 9, X, II, 19; Sinti Leitner,
II, ao, n. J3 1
§le
#T~* -» -. ,|„ Original fro ni
UNIVERSITY OF WISCONSIN
240 ECCLESIASTICAL PROCEDURE
tion concerning a thing or fact which they themselves
have witnessed (de scientia propria).
Yet it may happen that the matter is of exceptional
importance, or that the judge has reason to doubt the
truth of such testimony; in that case he may demand
fuller proof.
Concerning matrimonial cases of non-consummation,
the seven-hand testimony remains. On the other hand,
the greater number of witnesses required by the former
law against bishops and clerics T0 is no longer demanded
by the Code.*1
■
to See cc a, j, C. a, q, 4, wkcrc bishop ace required ; see also e. io,
More than three against a clergy- C a, q. 5.
aaao, and m Teat/- two against a '1 Santi-Ltitner, IX, so. O. 1 7;
Meaner, 1. c, p. 106.
gk
v ,1^ Original from
UNIVERSITY OF WISCONSIN
■
CHAPTER III
EXPERTS
That experts, or specialists, i.e., persons learned or
skilled in their own science or profession, especially mid-
wives in cases of non-consummated marriage, were not
wholly unknown to the Decretals,1 appears from the fact
that proof from such persons was admitted. Now-a-
days their part in settling litigation has become even more
conspicuous and frequent. The Code on this head adopts
most of the rules laid down for the S. Romana Rota.8
WHEN, BY WHOM AND FOR WHAT PURPOSE EXPERTS
ARE CHOSEN
Can. 1792
Peritorum opera utendum est quoties ex iuris vel
iudicis praescripto eorum examen et votum requiritur
ad factum aliquod comprobandum vel ad veram
alicuius rei naturam dignoscendam.
e
m
Can. 1793
§ i. Iudicis est peritos eligere vel designare.
§ 1. Hanc designat ionem in causis mere privatis
iudex facere potest rogatu utriusque partis vel etiam
altcrutrius, altera tamen consentiente ; in causis vero
bonum publicum respicientibus, audito promotore
iustitiae aut vinculi defensore.
1 C 14, X, II, 19.
%A. Ap. S„ II, 822-326; 8 130-136.
241
jle
Original from
UNIVERSITY OF WISCONSIN
242 ECCLESIASTICAL PROCEDURE
§ 3. Prudenti iudicii arbitrio relinquitur unum
pluresve peritos eligere pro causae natura et rei
dimcultatc, nisi lex ipsa numerum peritorum praefiniat.
Can. 1794
Peritorum est peritiam suam ad veritatis et iustitiae
leges exigere, neque falsum affirmando neque verum
occul tando ; in quo si dcliquerint, puniantur ad normam
can. 1743, §3.
Experts are selected as often as the law ( for instance,
in matrimonial cases)/ or the judge demands them, in
order to prove a fact or to establish the true nature of
a thing, as in the matter of reading a difficult document.
Their office and duty, therefore, consists in applying their
skill or science to the subject in dispute, according to
the rules of truth and justice. Hence scientific equip-
ment is the first qualification of an expert. From a
physician, e.g., we demand above all medical knowledge
and experience. This, however, does not exclude, but
rather implies, honesty and conscientiousness.
Experts are witnesses in the true sense of the word,
and hence, if they are untruthful, may be punished like
witnesses or delinquents, according to can. 1743, § 3.
who may/ be chosen"
Can. 1795
§ 1. Ad periti munus, ceteris paribus, deligantur, qui
competentis magistratus auctoritate idonei fuerint
comprobati.
§ 2. Qui a testimonio ferendo excluduntur ad
• Cfr. can. 1976 ff.
*Ie
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-'
CANON 1797 243
.norm am can. 1757, ne ad peritorum quidem ofHcium
assumi possunt.
Can. 1796
§ 1. Easdem ob causa quibus testes, possunt et
periti recusari.
§ 2. Iudex suo decreto edicat utrum sit admittenda
recusatio, necne, et, recusatione admissa, in locum
periti recusati alium sufficiat.
All other things being equal, those should be chosen
as experts who hold a certificate or diploma as to their
fitness from a competent public authority. For, gen-
erally speaking — except where the evil of " graft " is
deeply rooted and widely spread, and where bigotry is
rampant — diplomas are a safe indication of one's skill
and experience. The phrase " ceteris paribus " means
that a Catholic who is an acknowledged authority in his
branch may be chosen, even though the judge does not
"favor" him.
One who is not qualified to be a witness, according
to can. 1757, cannot be called in as an expert, and the
parties may, therefore, take exception; but no excep-
tion is admissible on the one sole plea that a man has
no public certificate. If an expert is lawfully refused,
it becomes the duty of the judge to issue a decree substi
tuting another one in his place.
■
c
o
duties of experts towards judge and parties
Can. 1797
■
§ 1. Periti demandatum munus suscipere censentur
praestatione iurisiurandi de munere fideliter implendo.
§ 2. Partes non solum interesse possunt iurisiurandi
praestationi, sed ctiam exsecutioni muneris pcrito
-
-
>Ie
£ * -» v J„ Original fro rn
UNIVERSITY OF WISCONSIN
244 ECCLESIASTICAL PROCEDURE
demandati, nisi aliud rei natura vel honestas exigat aut
lex vel iudex statuat
a
N
IK
Can. 1798
Post iusiurandum praestitum, si pcriti intra praefini-
turn tcmpus mandato non paruerint aut sine iusta
causa cxsecutionem defugiant, tenentur damnoruxn.
N
■
Can. 1799
§ 1. Iudex, at tent is iis quae a litigantibus forte
deducantur, omnia et singula capita decreto suo
definiat circa quae periti opera versari debeat
§ 2. Tcmpus intra quod examen perficiendum est et
votum proferendum, si necessarium vel opportunum
iudici vidcatur, potest ab ipso iudice praefuiiri et ctiam,
auditis partibus, prorogari.
An expert is supposed to assume his office by taking
the oath to perform his duties conscientiously.
The litigant parties may assist not only at the cere-
mony of administering the oath, but also when the expert
performs his duty. However, there are delicate cases,
especially of a criminal nature or demanding ocular in-
spection, which make the presence of the parties un-
desirable. Hence the law itself, as, for instance, in the
case of non-consummation (can. 1979) or solicitation,
forbids their presence, and the judge may positively ex-
clude them.
The judge should define as nearly and as clearly as
possible the exact purpose for which the aid of the expert
is asked ; and in so doing he should take into considera-
tion the suggestions made by the parties.
The time within which the examination must be made
G I Originalfiom
008IL UNIVERSITY 0FWI5C0NSIN
CANONS 179&-1800 245
and the report handed in, may be fixed by the judge,
who, after hearing the parties, may also prorogue the
term.
If the expert, after having taken the oath, does not
go to work within the time established, or fails to per-
form his duty without reason, he is obliged to make
good the loss that may be caused by his neglect or
delay.
critical investigation of papers
Can. 1800
§ z. Si dubitetur quia scrip turn aliquod exaraverit,
iudcx praeter scripturam quaestioni obnoxiam assignet
peritis, proponentibus partibus, scripturae cum quibus
ilia comparari et conferri debcat.
§ 2. Si de scripturis, quae sint inter se comparandae,
partes dissentiant, iudex seligat, comparationis gratia,
eas, quas pars ipsa alias recognovit, aut quas qui
accusatur auctor scripturae controversae, scripsit ut
persona publics et in archivis aut alio publico
tabulario custodiuntur ; aut eiua subscriptions quas ex
fide notarii vel personae publicae constet coram ipsis
fuisse exaratas.
§ 3. Quod si scripturae a partibus et a iudicc pro
comparatione designatae, peritorum iudicio, investi-
gationi non sufficiant, et is cui scriptura controversa
tribuitur, in vivis sit, iudex ad instantiam partis aut
etiam ex officio eum citet, ut manu propria coram
iudice vel eius delegato scribat quidquid periti, iudez
ipse, eiusve delegatus dictaturi sint.
§ 4. Recusatio scribendi, non probata legitima recu-
sations causa, habetur ut confessio genuinitatis
scripturae controversae in praeiudicium recusantis.
Gi r Original from
OOglt UNIVERSITY 0FWI5C0NSIN
246 ECCLESIASTICAL PROCEDURE
%
In deeds, last wills, and other documents, in fact in
every kind of writing, there may be calligraphic or palae-
o graphic difficulties which create doubt in the mind of
the judge as to the original writer. If that be the case,
the judge may command the parties to submit the doubt-
ful writing to experts for examination.
Suppose there is a last will written in the hand of John,
who is supposed to have drawn it up. The specimens
of John's handwriting produced by the parties differ
among themselves, the g or h or other letters not being
written in the same way as in the document attacked by
one of the parties. What is to be done ? In that case :
(a) papers which are recognized by the defendant as
in the genuine handwriting of John, or (b) papers which
John certainly wrote in an official capacity and which
are kept on file in public places, or (c) signatures which
are officially acknowledged as in John's own writing
should serve as means of comparison. If the experts
declare that the writings thus submitted for comparison
are not sufficient to form an opinion, the judge shall,
either ex officio or at the demand of the parties, summon
the supposed author of the disputed document and com-
mand him to write in presence of the judge or his dele-
gate, whatever the experts; the judge himself, or his dele-
gate, shall dictate. If he refuses to write without good
reason, his very refusal must be taken as a confession that
the disputed writing is not genuine.
REPORTS OF THE EXPERTS AND NON-EXPERTS
3
Can. 1801
§ i. Periti votum suum vel in scriptis proferre
possunt, vel oretenus coram iudicc ; sed si ore
>Ie
k ,.] ^ Original from
UNIVERSITY OF WISCONSIN
-'
■
pi
CANONS 1801-1804 247
proferatur, statim in scriptis redigi debet a notario et
a peritis subscribi.
§ 2. Peritus autcrn, praesertim si sententiam suam in
scriptis protulerit, acccrsiri potest a iudice ut explica-
tiones, quae ulterius necessariae videantur, suppeditet.
§3. Periti debent indicare peispicue qua via et
ratione processerint in explendo munere sibi de-
mandato et quibus potissimum argumentis sententia ab
ipsis pfolata nitatur.
Can. 1802
Periti suam quisque relationem a ceteris distinctam
confidant, nisi, lege non contradicente, iudex imam a
singulis subscribendam fieri iubeat; quod si fiat,
sententiarum discrimina, si qua fuerint, diligenter
adnotcntur.
Can. 1803
§ 1. Si periti inter se discrepant, licet iudici aut peri-
tioris suffragium super relatis a primis peritis
exquirere aut novos de integro peritos adhibere.
§ 2. Eadem facultas iudici est quoties periti post
electionem in suspicionem inciderint vel impares atque
non idonei muneri perspecti fuerint.
Can. 1804
§ 1. Iudex non peritorum tantum conclusiones, etsi
Concordes, sed cetera quoque causae adiuncta attente
perpendat.
§ 2. Cum rcddit rati ones decidendi, exprimcrc debet
quibus motus argumentis peritorum conclusiones aut
admiserit aut reiecerit.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
248 ECCLESIASTICAL PROCEDURE
Experts must, as a rule, make their report in writing.
If it is made orally, to the judge, it should be imme-
diately put into writing by the notary, and signed by
the expert
The latter may, however, especially after having made
a written report, be called upon by the judge to give
further explanations which may appear necessary.
The report shall contain an account of how the ex-
perts proceeded, what system or method they employed,
and also give their reasons (i.e., scientific or professional
reasons) for adopting the view expressed in their re-
port.
Each expert must write out his own report, unless, the
law permitting, the judge demands one report to be made
by several; in which case all experts engaged in the
matter must sign this one report and, besides, carefully
state wherein their views differ.
If the experts differ, the judge may ask another more
skilled expert for his opinion on the report submitted, or
call in an entirely new set of experts.
He has the same power whenever the experts have be-
come suspected or rendered themselves unfit for the work
in hand.
The judge shall carefully ponder, not only the con-
clusions of the experts, but also the other circumstances
of the case. He is not, however, bound to accept the
experts' view. If he decides to give the reasons for his
decision (which, however, he is not bound to do, because
the text only says, cum reddit, when or if he does), he
should explain why he admitted or rejected the conclu-
sions of the experts.
5 iVMiL' Original from
lOOgK UNIVERSITY OF WISCONSIN
CANON 1805 249
a
N
N
■
-
expenses of experts
Can. 1805
Peritorum expensas et honoraria iudex, receptam
uniuscuiusque loci consuetudinem prae oculis habens,
ex bono et aequo taxare debet, salvo iure recursus ad
normam can. 2913, § 1.
The expenses and salaries of experts should be fairly
and squarely fixed by the judge, in conformity with local
custom. Recourse, but no appeal, is permitted to the
parties within ten days after the sentence has been pro-
nounced.
, * ..,| Original from
C.OOglL UNIVERSITY OF WISCONSIN
-'
CHAPTER IV
ACCESSUS AND RECOGNITIO
■
local inspection
Can. 1806
Si ad controversiae locum iudex accedere atque
ipsam rem controversam inspicere ncccssarium cxisti-
met, decreto id pracstituat, quo ca quae in accessu
praestanda sint, auditis partibus, summatim describat.
Can. 1807
Iudex recognitionem pcragere potest vel ipse per ae
vel per auditorem aut iudicem delegatuin.
Can. 1808
§ x. Iudex, rem vel locum recognoscens, peritos
adhibere potest, si ipsorum opera necessaria vel utilis
videatur.
§ 2. Si periti adhibeantur. serventur, quantum fieri
potest, quae praescripta sunt can. 1 793-1805.
Can. 1809
Si iurgii vel perturbationis periculum pertimes-
cendurn iudici videatur, potent ipse prohibere ne
partes vel earum advocati iudiciali recognition!
intersint.
250
►ogle
Original from
UMlVERSlf Y OF V/ISCONSI
J
■
9
CANONS 1806-1811 251
Can. 1810
Iudex testes, vel ex officio accitos vel a partihus ante
recognitionem rite productos, potest in ipso iudiciali
accessu examini subiicere, si id cxpedire videatur ad
pleniorem probationem aut ad removenda dubia ob
quae recognitio decerni debuit.
Can. 181 1
§ 1. Notarius diligenter curet ut constet ex actis qua
die et hora recognitio facta sit, quae personae inter-
fuerint, quae, recognitione durante, aut dicta aut
peracta aut a iudice decreta sint
§2. Peractae recognitionis instrumenta turn iudex
turn notarius subscribant.
Cases l have occurred and still occur which require a
personal and local inspection. Hence our Code lays down
rules for this judicial procedure.
1. If the judge deems local inspection necessary, he
must issue a decree to that effect in which he summarily
states the points to be examined. This he does after
having heard the parties.
2. The judge may hold this inspection himself or en-
trust it to his udiator or a delegate. Besides, he may,
if he deems it necessary or useful, employ experts, con-
cerning whom the rules laid down in the preceding chap-
ter must be observed as strictly as feasible.
3. However, if the judge should apprehend any quar-
rel or disturbance between the parties, he may forbid
them or their attorneys to be present at the local inspec-
tion.
4. If the judge deems it expedient for fuller proof
X Cfr. c. 9, X, II, 26: ag ritnen-scres or surveyors.
jle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
N
■
252 ECCLESIASTICAL PROCEDURE
and for the dispersion of doubts, he may examine the
official witnesses and the other witnesses produced by the
parties on the spot where the judicial inspection is held.
5, The notary shall keep a careful record of the day
and hour when the inspection was held, stating who was
present, what was done or said during the process, and
what was decreed by the judge. This record must be
signed by the judge — or, we presume, by the auditor
or legate, if these take the judge's place — and the notary.
. >
Go >gle
I , Original fro ni
UNIVERSITY OF WISCONSIN
N
■
CHAPTER V
DOCUMENTARY PROOF
Besides the oral evidence of witnesses there is another
class of evidence recognized by law, namely, written
evidence, which the Decretals (n, 22) treat under the
title " De fide instrununtorum."
Art. I
nature of documents
Can. 1812
In quolibet iudicii genere admittitur probatio per
docuxnenta turn publica turn privata.
Can. 1813
§ 1. Praecipua documenta publica ecclesiastica haec
sunt:
i.° Acta Sum mi Pontincia et Curiae Romanae et
Ordinanorurn in exercitio suorum munerum authentica
forma exarata, itemque attestationes authenticae de
iisdem actibus datae ab illis vel eorum notariis;
2.0 Instrumenta a notariis ecclesiasticis confecta.
3.0 Acta iudicialia ecclesiastica;
4.0 Inscriptiones baptismi, confirmationis, ordina-
tionis, professionis religiosae, matrimonii, mortis, quae
habentur in regestis Curiae vel paroeciae, vel reli-
gionis, et attestationes scriptae ex iisdem desumptae
253
G I Originalfrom
008IL UNIVERSITY OFWISCONSIN
254 ECCLESIASTICAL PROCEDURE
ct a parochis, vel Ordinariis, vel notariis ecclesiasticU
conf cctac aut earum exemplaria authentica.
§ 2. Documents publica civilia ea sunt quae secun-
dum uniuscuiusque loci leges talia iure censentur.
§ 3. Litterae, contractus, testamenta et scripta quac-
libet a privatis confecta, privatorum documentorum
numero habentur.
The title of this chapter is: De Probatione per Instru-
ment^ which might apply to oral as well as written evi-
dence. But the Code plainly intends written proofs only.
Hence can. 1812 simply states that proofs by documents
are admitted in all kinds of trials, both civil and criminal,
and that these documents may be either public or private.
A public document is one composed by an official in
his official capacity, with due observance of the prescribed
formalities, or at least in official style.1 The official style
requires the signature of an officially acknowledged per-
son, his seal or at least that of the office (for instance,
the diocesan or episcopal seal, the parish seal, the monas-
tery seal, etc.), and the date and place of issuance.
A private document is a writing executed by private
persons or by officials in their private capacity only.
Thus a pastor or notary public may give a receipt
(apocha), or make a bilateral contract (syngraphum) ,
or write a letter, which are entirely private.
There occur in this chapter two terms which have
been variously explained for various purposes ; they are :
authentic and genuine. Authentic 2 here generally oc-
01
1 If it is BUted that among the 3 Authentic Is derived from
solemnities required are the invo- VfcwiTlff or suro ah, it. the
cation of the Divinity, the signature archaic form for esse, to be; hence
of at least three witnesses, etc. eum qui ipse est vel og\t, the one
(Santl-Lcitner II, ao, n. *), this who has written the document,
cannot be applied now-a-dayi in ec- Thus br an authentic gospel we
clcsiaitical courts. mean a gospel attributed to one of
jle
fcrt|.rt Original from
UNIVERSITY OF WISCONSIN
CANONS 1812-1813 255
curs in the phrase, "forma autkentica" and therefore
can only mean that the legal form in the execution of
a document was duly observed. Genuine, on the other
hand, refers to the origin or authorship of a writing, al-
though we candidly admit that * genuine " in can. 1814
could just as well be taken for " authentic."
So far as the juridical effects are concerned, there is
no difference between a public and an authentic docu-
ment, because every public document is authentic, but
not conversely.8 Private documents may also be au-
thentic, and if they are, they produce the same juridical
effect as public documents.
■n
It may be worth while to state some of the marks which
render private documents authentic. A private document
may become authentic by the signature of one's own hand,
together with the signature of three living witnesses,
or by affixing to it the official seal of a public (ecclesiasti-
cal or civil) magistrate, by being found in the public ar-
chives, by long-standing recognition, or by custom.4
This premised, let us hear what can. 1813 has to
say about the chief public ecclesiastical documents; these
I arC:
l.° The acts of the Sovereign Pontiff, of the Roman
Court, and of the Ordinaries, when issued in authentic
form in the exercise of their office; also authentic at-
a
testations or copies of such acts given by themselves
or their notaries.
A perusal of the Acta Apostolicae Sedis shows how
authentic Roman documents look. They are signed by
the head of the Congregation and its Secretary with the
L(oco) S(igilli), place and date of issuance. An epis-
9
of a certain author (Epistle of 3 Reiffenituel, II, 22, n. 14 f.
the four evangelists. A genuine Barnabas), but only one belonging
writing is not necessarily the work to a certai - age or century.
* Ibid., II, 20, n. 143 i.
*'C
% ,.] , Original from
UNIVERSITY OF WISCONSIN
256 ECCLESIASTICAL PROCEDURE
copal document should be issued in the same way, signed
with the bishop's name.
" Attestations " may be either identic copies of the
original text, or extracts therefrom. They, too, must
be authenticated by being signed and sealed by the re-
spective officials or their notaries.
2.0 Documents issued by ecclesiastical notaries. Con-
cerning these the commentators8 are rather lavish in
their demands, which may be briefly reduced to the fol-
lowing :
a) The document itself must contain the date and
place of issuance according to the customary manner.
The year must be reckoned not from the Incarnation, but
according to the civil calendar.8 The seal of the notary
must be affixed if he has a special seal; otherwise his
personal signature will suffice.
b) The notary must be lawfully appointed, not re-
moved from office,7 and should sign his name always in
the same way for the sake of comparison. The notaries
of exempt clerical institutes are entitled to issue authentic
documents concerning their orders*
3. Judicial ecclesiastical acts, because they possess all
the requisites of authentic documents.
4. The original records of baptism, confirmation, ordi-
nation, religious profession, matrimony, and death, which
are kept on file in the ecclesiastical courts, in the archives
of parishes and jeligious institutes; also the testimonies
or certificates taken from these original registers and
issued by pastors, Ordinaries, or ecclesiastical notaries,
as well as copies of these attestations ; but the latter must
be authenticated, as explained above, i.e., they must
-
5 Cf r. Eogel, II, 90; Reiffenttud, June »9. 1908. HI. S (-*• 4^ £«■
II. 10 ff. L 17).
"■
8 Pius X, "Sapienti consilio" 1 Can. 37 J f.
• Cmn. 503.
>Ie
f ■ j ^ Original from
UNIVERSITY OF WISCONSIN
CANONS 1812-1813 257
St
contain date and place of issuance as well as the official
seal.
A doubt may naturally arise as to our assistants or
curates, — whether they may issue authentic certificates
of baptism or marriage, etc., because the text only men-
tions the pastors. To answer this question is not as
simple as it would appear, and therefore we state our
personal opinion only. An assistant or a curate who
takes the place of his pastor {e.g., during a vacation)
is certainly entitled to issue such a certificate. But a
merely casual or accidental absence of the pastor would
not render the assistant a locum tenens. An assistant
cannot per se issue a certificate, because the Decretals •
as well as our text exclude him, — a curate not being an
official in such matters. However the law 10 admits ex-
emplaria or copies (certificates) made by the authority
of the judge or his delegate, provided there be a just
reason and at least one of the parties asks for it. Be-
sides, as the Gloss says,11 it is not necessary that the copy
or certificate be made by a public person, if only the
official seal is appended. From this, then, and consider-
ing the rules of delegation, we conclude that an assistant
may in urgent cases be delegated, and even presume
delegation, provided he uses the parish seal and issues
such papers in the name of the pastor.12
We believe that if the local Ordinary or the diocesan
court would call upon an assistant to issue a certificate,
the latter would act officially and could therefore freely
use the parish seal.
§ 2 of can. 1813 then mentions civil public documents
which must be accepted as authentic if issued according
a
BC. 16, X, TI. aa. a2 Of course, the assistant should
10 Ibid. also put down his own name: v. g.,
11 Ad c 16, /. c; Rdffenrtoel, II, J. J. Murphy, Pastor, per J. J.
Ja. n. 60, Bogazi, Assistant.
p
"■
oogle
C ^ v .J,., Original fro ni
UNIVERSITY OF WISCONSIN
258
ECCLESIASTICAL PROCEDURE
■
to the laws of the respective country. In the U. S., as
also in England, affidavits are frequently used as public
and legal evidence. An affidavit is a written declaration
or statement, made before a magistrate or other person
legally authorized to administer an oath, the truth of which
statement is confirmed either by an oath or a solemn
affirmation. Such affidavits, and certified copies thereof,
constitute prima facie evidence in most matters before
the civil courts.
Besides, the Revised Statutes of some States, e.g.,
Missouri, admit the registers of religious societies as
evidence.13
§ 3 of caa 1813 states that letters, contracts, last wills
and all other writings which are written or drawn up
by private persons, as such, must be regarded as private
documents. To this class belong the private letters writ-
ten by persons in public office. Last wills may be drawn
up by private persons, but if they are made before a
notary public and two witnesses, all of whom sign their
names, they are public documents.
is Rev. Slat. Mo., 1899, Sect.
3102: "When, by the ordinance
or custom of any religious* society
or congregation in this state a reg-
ister it required to be kept of mar-
riages, births, baptisms, deaths or
interments, such registers shall be
admitted as evidence." Sec. 3103:
" Copies of the register referred to
in the preceding section, certified
by the pastor or other head of any
such society or congregation, or by
the clerk or other keeper of such
register, and verified by 'his affidavit
In writing, shall be received in evi-
dence." From this law we may
deduce a corollary concerning copies
or certificates of baptismal registers
issued by ministers of non-Catkolie
denominations. They are admitted
as evidence by the civil court if
issued under affidavit. Therefore
they may lawfully be compared to,
and treated as, civil documents, in
spite of the sad fact, which a
defensor vinculi once deplored, that
the parties sometime* are not at
all conscientious in stating the
facts and often deceive their min-
isters.
gle
Original from
UNIVERSITY OF WISCONSIN
■
pi
-
CANONS 1814-1818 259
authority of documents
Can. 1814
Documenta publica sive ecclesiastics sive civilia
gcnuina pracsumuntur, donee contrarium evidentibus
argumentis cvincatur.
Can. 181 5
Recognitio aut impugnatio scripturae proponi potest
in iudicio turn incidenter, turn ad instar causae
principalis.
Can. 1816
Documenta publica ndem faciunt de iis quae directe
et principalitcr in eisdem affiimantur, '
Can. 1817
Documentum privatum, sive agnitum a parte sive
recognitum a iudice, probat adversus auctorem vel
subscriptorcm et causam ab eis habentes, perinde ac
confessio extra iudicium facta; scd per sc non habet
vim probandi adversus extraneos.
Can. 1818
Si abrasa, corrccta, interpolata aliove vitk) docu-
menta infecta demonstrentur, iudicis est aestitnare an
et quanti huiusmodi documenta facienda sint.
Public documents, ecclesiastical as well as civil, are
presumed to be genuine as long as the contrary is not
evidently proved. They prove what is directly and prin-
cipally affirmed in them. In other words, such docu-
ments afford prima facie evidence. The phrase, * quae
oogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
260 ECCLESIASTICAL PROCEDURE
directe et principaliter in eisdem aMrmantur," must be
understood of the intention of the plaintiff or the direct
object of the action to be proved by a document. For
instance, a baptismal record proves that baptism has
been conferred, but it does not prove the validity of the
baptism, and a marriage certificate issued by a recorder
proves that the parties have gone through the ceremony
required by civil law, but it does not prove the validity
of the marriage from the ecclesiastical point of view.
Even a public document, may, however, be attacked.
Can. 181 5 says: A document may be acknowledged or
attacked at a trial, either incidentally, or as the prin-
cipal action. It is a mere incidental or side issue if it only
leads to establishing the main question or meritum causae;
it is the principal issue, if the whole trial revolves around
it. Thus a last will depends chiefly on the document,
although perhaps later on the plaintiff may attack either
the mental or the juridical capacity of the testator."
The attack may be made on different grounds, either
because the writer was not an official person, or was no
longer in office when the document was drawn up ; or
because of a lack of the required formalities, or because
the document was made fraudulently."
But to prove the spuriousness or falsity of a document
at least two classical witnesses (omni exceptione tnaiores)
are required. These witnesses may be either instru-
mental or extraneous; they are instrumental if they are
mentioned in the document as witnesses or if they as-
sisted at the drafting of the paper or signed it. Extra-
neous witnesses are such as are mentioned in the docu-
ment but did not sign it. Two witnesses, either instru-
-
a
14 We know of a lawsuit that testation and accepting the legacy
lasted twelve years and depended was attacked.
on a last will; after the will was 15 Cfr. Santi-Leitner, II, aa, n.
declared authentic, the capacity of 19 f.
>Ie
f~* -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 1818 261
mental or extraneous, if they have the necessary qualities,
are sufficient to render a document useless for proof.
Of course, if two witnesses would testify in favor of
the validity of a document, and two against it, these
depositions would not affect the weight of a public or
authentic document.
Since the seal is a strict requisite of an authentic docu-
ment, this, too, may be the object of rebuttal. For the
seal must be genuine, i.e., it must be that of the official
who is supposed to have impressed it on the paper. The
inscription of the seal, or the letters around it, must be
legible and as clearly expressed as possible. The seal
should not be torn or broken."
Private documents, says can. 1817, whether acknowl-
edged by the party or accepted by the judge, have the
weight or value of an extrajudicial confession™ which
may or may not be admitted by the judge against the
plaintiff, or against the signatory, or against those whose
cause is bound up with that of the plaintiff and the
signatory. Thus one who has gone security or furnished
bail is bound up with the person in whose favor he has
done so.
Can. 1818 mentions defective documents, viz., such as
bear the signs of erasure, interpolation or correction.
It is left to the judge whether and how far to accept
such documents.
The erasure, to render a document defective, must
occur in a notable or substantial place, as in the date or
place when and where it was drawn up, in the name of
the drafter, or in a dispositive part of the document
itself. However, if it can be proved that the notary him-
self caused the erasure, the authenticity of the document
can not be doubted.
ifl ReifTenrtuel, II, *a, n. 72 I. 17 Cfr. can. I7S3-
p
ogle
Original from
UNIVERSITY OF WISCONSIN
-
■
pi
c
262 ECCLESIASTICAL PROCEDURE
Interpolation means the insertion by another than the
authorized hand, of matter or names foreign to a docu-
ment. This defect, too, must be judged according to
what was said of erasure.
The same applies to corrections, whether in date, place,
names, or matter. All three of these processes render a
document somewhat suspect, until the doubt has been
cleared away by experts or by comparison, according to
can. 1800.
Art. II
EXHIBITION OF DOCUMENTS AND CLAIM THERETO
The first three canons of this Article regulate the shape
and form in which the documents must be " shown,"
whilst the following three determine the claim and duty
D
to exhibit them. The title of the Article styles the latter
actio ad exkibendum, because a refusal to exhibit docu-
ment may call for a judiciary settlement, which may
amount to an action.
original and authenticated documents
Can. 1819
Documenta vim probancli in iudicio non habent, nisi
originalia sint aut in exemplar! authentico exhibita et
penes tribunalis cancellariaxn deposita, exceptis docu-
ments quae publici iuris sunt, ecu leges rite proxnul-
gatae.
Can. 1820
Documenta in forma authentica sunt exhibenda et in
iudicio deponenda, ut a iudice et ab adversario
examinari possint .
§le
£ * -» v J„ Original from
UNIVERSITY OF WISCONSIN
N
p
CANONS 1819^-1821 263
Can. 1821
§ z. Si dubium excitetur utrum fideliter exscriptum
sit exemplar, an non, index ad instantiam partis vel
etiam ex officio decernere potest, ut ipsum docu-
men turn exhibcatur, unde exemplar est desumptum.
§ a. Si id fieri aut minime aut valde difficulter possit,
iudex potest auditorem delegare aut loci Ordinarium
rogare pro examine et collatione documents prae>
scribens quibus de articulis et quernadmodum fieri
debcat collatio; collationi vero utraque pars assistere
potest
Documents furnish judicial proof only if they are ex-
hibited in their original form, or in an authentic copy,
and are deposited with the chancery of the tribunal. An
authentic copy is one made by a notary public and sealed
with his official seal.18 The zrisunt of an official is suffi-
cient if that official has personally inspected the original
and compared the copy with it.19 But even in this case
his official signature and his seal would be required, tes-
tifying to the conformity of the copy with the original
document ; because signature and seal are the usual signs
of an official certificate. For affidavits an oath would
be necessary.
Such formalities, says the text, are not required if the
documents have been published (quae publici iuris sunt)
and therefore made the common property of all, as is
the case, e. g., with laws when they are promulgated.
By-laws, statutes, charters, also decisions and documents
published in the Acta Apostolicae Sedis, and official
18 C. 2, X, II, iz\ the fact alone tached only by an official person, or
that it ii made by a public peraon at least with his content or bj- his
or has the authentic seal; we joined command,
both by the particle and, because IB C. 16, X, II, 22.
the official seal can be validly at-
jle
, l , Original fro ni
UNIVERSITY OF WISCONSIN
264 ECCLESIASTICAL PROCEDURE
civil publications, are public documents which require
neither to be authenticated nor to be deposited with the
tribunal, although the latter may demand a copy of civil
publications. The Acta Apostolicae Sedis may be sup-
posed to be on file in every ecclesiastical court.
Documents, says can. 1820, must be exhibited in an
authentic form and deposited in court, so that they may
be inspected by the judge and the other party. This is
the case also with privileges and indulgences which ex-
empt religious may oppose to Ordinaries.30
If the judge has a doubt as to the correctness and
trustworthiness of a copy exhibited in court, he may,
either officially, or upon the demand of the other party,
decree that the original document be produced from
which the copy (exemplar) was made. However, if
there may be great inconvenience in complying with this
demand (because the original writ will not stand being
exposed to the light, or because it is so frail and delicate
that transportation would injure it), or if the civil
authorities forbid the removal of original documents
from their places (this would be a case of impossibility),
the judge may delegate his auditor or ask the local Or-
dinary to have the document examined and collated with
the copy presented in court.
f actio ad exhibexdum
Can. 1822
Documenta communia quaeve de communi agunt
negotio, ut testamenta et instrumenta quae respiciunt
successiones, bonorum partitiones, contractus aliaque
huiusmodi de quibus lis est inter partes, quilibct ex
aoC. 7, 6°, V, 7.
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
CANONS 1823-1824 265
litigantibus potest postulare ut in hire cxhibcantur ab
ea parte quae ilia possidere dicitur.
Can. 1823
§ 1. Nemo tamen exhibere tenetur documenta, etsi
communia, quae communicari nequeiint sine periculo
damni ad normam can. 1755, § 2, n. a aut sine periculo
violationis secreti servandi.
§ 2. Attamen si qua saltern document! particula,
quam product intersit, describi possit, et in excmplari
cxhiheri sine memoratis incommodis, iudex dec erne re
potest ut eadeni exhibeatur.
Can. 1824
§1. Si pars exhibere recuse t documentum de iure
producendum, quod ipsa fertur possidere, iudex, altera
parte postulante, auditoque, si opus sit, promotore
iustitiae vel vinculi defensore, interlocutoria sententia
statuat, an et quomodo eiusdem document! exhibitio
f acienda sit.
§2. Parte parere recusante, iudicis est aestimare
quanti haec recusatio facienda sit.
§3- Quod si pars documentum apud se esse neget.
iudex poterit earn examini subiicere et ad iusiurandum
de ea re praestandum adigere.
The question arises whether there is any obligation to
exhibit or produce documents which are necessary to
settle a disputed point in court. And here a distinction
is drawn, not between public and private documents as
such, but between the contents of such documents and
the parties' mutual claim on them.
Can. 1822 mentions documenta communia, i.e., docu-
Go >gle
I , Original fro m
UNIVERSITY OF WISCONSIN
266 ECCLESIASTICAL PROCEDURE
a
merits which are the common properly of both litigants.
This condition may be achieved by mutual agreement
or the common payment of the expenses incurred for
drawing up a paper, for instance, by each party paying
its share to the notary public. ■
Documents may also be common by reason of the com-
mon interest both parties have in them, as is usually the
case in legacies, last wills, and contracts. Common docu-
ments, lastly, are such as are drafted by official persons,
such as judicial acts or official documents drawn up by
notaries public which concern the two parties, also the
account-books kept by administrators of minors or cor-
porations.21 All such documents, not being exclusively
private property or involving a criminal or incriminating
action, are common to both parties and must, therefore,
be produced at the trial by the party who happens to be
in possession of them.
Aside from this no one is bound to exhibit a document
which may place him or his nearest relatives (can. i755»
§ 2, n. 2) in danger of infamy, or cause him or them
great trouble and vexation. Neither is there any obliga-
tion of producing such documents, even though they be
common, if there be danger of violating a secret imposed
either by the natural law or by one's office.
But the judge may decree that, if these inconveniences
are not to be feared, parts at least of the documents,
which are important, be copied, and the copy presented
at the trial.
Should a party refuse to show a document in his pos-
session, the judge shall decide whether and how the docu-
ment must be exhibited, provided the other party insists
on its exhibition. In that case, therefore, the judge
issues an interlocutory decree, after having consulted,
»Cfr. Rtiffenituel, II, aa, n. >v,6 ff.
* ~%f\r%\£> Original fiom
►ogle
UNIVERSITY OF WI5CON5I
CANON 1824 267
if necessary, the promoter iustitiae and the defensor
vincuH. A refusal by the. party in possession of the
document must be weighed by the judge as to its juridical
value. If the party denies possession of the document,
he may be cross-examined under oath.
A word concerning the account-books of ecclesiastical
corporations. These furnish proof, not in favor of, but
against these corporations,32 unless they have been audited
by a public auditor, in which case they deserve great credit
and constitute circumstantial evidence.3* It may be added
that the fiscus is entitled to inspect these account-books
and also all common documents produced at trials.5
Zft
22 C tin. Clem. v. 5. 84 Rdffenrtuel, II. aa. ■. jsxf.
28 Stnti-Leitner, II, 22, a. 10.
'le
£ * ^ ^ %ls* Original from
UNIVERSITY OF WISCONSIN
■
CHAPTER VI
de praesumptionibus, or circumstantial evidence
Can. 1825
§ 1. Praesumptio est rei incertae probabilis con-
iectura; eaque alia est iuris, quae ab ipsa lege statui-
tur; alia hominis, quae a iudice coniicitur.
§ a. Praesumptio iuris alia est iuris simpliciter, alia
iuris et de iure.
Can. 1826
Contra praesumptionem iuris simpliciter admittitur
probatio turn directa turn indirecta; contra prae-
sumptionem iuris et de iure, tantum indirecta, hoc est
contra factum quod est praesumptionis f undamcntum.
Can. 1827
Qui habet pro se iuris praesumptionem, liberatur ab
oncre proband i, quod recidit in partem adversam ; qua
non probante, sententia ferri debet in favorem partis
pro qua stat praesumptio.
Can. 1828
Praesumptiones, quae non statuuntur a iure, iudex
ne coniiciat, nisi ex facto certo et determinate), quod
cum eo, de quo controversia est, directe cohaereat.
Next in value to positive proofs is presumption or
circumstantial evidence, which is here (can. 1825) de-
268
fa
ad by GoOgle
4 ,.] ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1825-1828 269
fined as a probable conjecture concerning an uncertain
fact or thing. From circumstances which either neces-
sarily or usually attend a fact we conclude to the existence
of the fact itself. The conclusion is, therefore, based on
certain indicia, or signs, indications or circumstances
which influence the judge's mind either for or against the
party who brought suit. A presumption is called legal
(o lege), if expressed in and admitted by law; it is
called made by the judge or jury (ab homine), if it arises
from the mental operation of the judge, but is not espe-
cially pointed out in law. It is natural for any man, and
especially for a judge, to form a judgment from usual
occurrences. This presumption is called natural, although
it might just as well be styled ethical, whilst the praesump-
tio a lege might be named juridical or legal presumption.
Legal presumption is twofold : iuris, simply, when in-
troduced and admitted and expressed as such by law;
iuris et de iure, when not only expressed and acknowl-
edged by law, but when the law is based upon the pre-
sumption. The legislator, perceiving that certain circum-
stances tend to prove an event or fact, often uses this fact
as a basis for the law. There are in our Code two canons
which establish a praesumptio iuris et de iure, vis., can.
1904, a matter adjudged, and can. 1972, concerning a
marriage not disputed during life. The praesumptio iuris
tantum is treated in three canons, viz„ can. 1015, §2,
which presumes the consummation of a marriage duly
celebrated, with the added clause : " until the contrary has
been proved; " can. 1086, § I, where the internal consent
to marriage is presumed in conformity with the external
manifestation; and can. 1814, which presumes ecclesias-
tical and civil public documents to be genuine.
Can. 1826 determines the weight of legal presumption,
stating that against a praesumptio iuris simpliciter direct
G I Original from
°°alc UNIVERSITY OF WISCONSIN
270
ECCLESIASTICAL PROCEDURE
as well as indirect proofs are admissible; whilst against
a praesumptio iuris et de iure direct evidence only may
be admitted, i.e., a proof overthrowing the fact upon
which the presumption is based. The Code does not
define the different species of direct and indirect proofs,
nor do the commentators J offer any light on this subject-
Hence it appears rather risky to venture upon an adequate
discrimination. However, some examples may illustrate
the distinction. Take can. 1972, concerning a marriage
not disputed, which creates a praesumptio iuris ct de iure.
What is to be done in that case ? The legitimacy of the
children is involved directly, whilst the validity of the
marriage can be attacked only indirectly. But the ques-
tion will necessarily turn about an existing impediment.
For although the presumption for the validity of a mar-
riage which has not been disputed by both or one of the
parties during their lifetime is so strong that the tie can-
not be directly impugned, yet if the legitimacy of a child
is in question, for instance, on account of an inheritance
or title, the question of validity will naturally enter the
fact at issue (factum probandum) . Therefore, the plain-
tiff, who attacks the legitimacy of a child on the ground
that the marriage from which this child was born was
invalid, must prove that either before or during the mar-
riage there existed a diriment impediment which had
never been removed.2 Hence we may say that direct
evidence is evidence admitted by reason of the contrary
evidence which is produced against the merits of the case
itself ; whereas indirect evidence is admitted only by rea-
1 They generally distinguish be-
tween iudieialh and cxtra-iudicialis,
plena and semi-plena, naturalis and
artificialis, simplex and mixta, prob-
er., and reprobatio; cfr. Wernx, V,
a. 594, p. 4$off. Of all these di-
visions the last-named would come
nearest to direct and indirect.
2 Concerning a title-case see
Kenny-Webb, Outlines of Criminal
Law, 190?, P- 3*5 *.
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1825-1828 271
son of the case being connected with another. Another
difference can hardly be established. For it is customary
to classify evidence according to the differences in its
logical bearing upon the question to be decided, and from
this point of view all evidence is either direct or indirect.
Direct evidence is testimonial evidence to one or more of
the facta probanda, i.e., those facts which, if all of them
are proved, legally necessitate a decision favorable to the
person producing them. All other evidence is circum-
stantial, which includes real as well as personal evidence."
From this it will be readily perceived that the directa and
indirecta probatio of our text has nothing in common
with this division. For the fact to be proved against a
violent presumption may be produced directly as well as
indirectly.
Can. 1827 lays down the effects of legal presumption.
And if we say legal presumption, we include, because the
text draws no distinction, the praesumptio iuris tantum
as well as the praesumptio iuris et de iure. Legal pre-
sumption frees the party from the burden of proof, which
is thus devolved on the adversary. Thus the presumption
of receiving tithes is in favor of the pastor against
strangers who claim the tithe in the parish subject to that
pastor, for it is very unlikely (inverisimile) that strangers
in a parish * are entitled to the tithes of the same. Thus
• also the presumption is in favor of the bishop's right to
appoint to benefices in his diocese, until the contrary is
proved.8 Consequently, if either party, plaintiff or de-
fendant, has not proved his intention against the rival,
the judge must pronounce in favor of the one for whom
the legal presumption stands, because the law is in his
favor and as long as the contrary is not evident, the law
Q
a Kenny- Webb, /. c, p. 3« f- S See can. 143a, I 1.
«C. 2, 6% II, 3; c. 16, X, II, 23.
jle
( * -» ^ -.L-. Original from
UNIVERSITY OF WISCONSIN
272 ECCLESIASTICAL PROCEDURE
must be upheld. But the judge must act altogether dif-
ferently when natural or ethical evidence, not expressed
in law, is to determine or influence his decision. For
such a presumption can only be gathered from certain
and determined facts which directly bear upon the factum
probandum. This is expressed by a learned modern
writer thus: The jury or judge has to depend on the
cohesion of each circumstance in the evidence with the
rest of the chain of circumstances of which it forms a
part'
Here is introduced the praesumptio hominis, which has
been divided into three classes : levis, gravis, violenta or
gravissitna. Light presumption is based on indications
which seldom or hardly ever permit us to conclude that a
fact really happened ; for instance, if one would surmise
evil by seeing a clergyman talking with a woman. Such
a presumption is frivolous and must be discarded. It
should rather be called rash judgment. The praesumptio
gravis occurs when the indications or circumstances are
of such a nature that they permit us to infer a usual and
ordinary occurrence. A case of this kind is mentioned
in the Decretals.1 A young man was seen in frequent
company with a girl, "per plana et nemora, vias et invia,
pluries convagantes" A violent presumption is one
which, though not expressed, creates such a firm convic-
tion in the mind that it cannot be resisted, although per-
haps a slim evasion may be possible.8
These evidences, then, must be weighed and compared
with the fact at issue. The rule advanced by barristers,
that no conviction is allowed unless the fact in question
t Kenny-Wtbb, /. c, p. 324. 8 An example in c. 12. X. II, jj;
7 C. 13, X, II, 23; but both swore concerning adultery: solum cum
st camaliicr eognovisse, therefore a sola, nudum cum nuda in eodem
of the former illicit affinity. Uclo.
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1825-1828 273
has been fully proved,9 may safely be accepted by the
ecclesiastical court.
Here we will add some rules concerning the prevalence
and weight of circumstantial evidence, as laid down by
canonists.10
a ) Legal presumptions are weightier than natural ones,
and must therefore be preferred.
b) A special circumstance connected with the fact at
issue has more value than a general presumption, accord-
ing to reg. juris 34 in 6° : " Generi per speciem deroga-
tur."
c) Presumptions which are in favor of the established
laws of nature and society and conformable to natural
tendencies, must be preferred, as a rule, to circumstances
which indicate unnatural excess; thus temperate habits
in youth and manhood create a favorable presumption
for old age, provided all other things are equal.
d) Presumptions in favor of the validity of an act al-
ready posted are weightier than those in favor of its inva-
lidity. Hence the axiom : " Baptismus valide censendus
in ordine ad matritnonium." A violent presumption of
this kind is mentioned in the Decretals,11 where Innocent
III decided that Baptism may be violenter presumed in
one who was born of Christian parents and lived faithfully
among Christians ; although in case he was not baptized,
he was not ordained validly.
e) Where the evidence is equally compatible with
either view, the judge is riot competent to leave the matter
to the jury," or to decide the case. For equal presump-
tions, like equal proofs, kill each other, and a judge can-
not decide whilst he is in a doubtful frame of mind.
m
a
0 Kenny-Webb. I c. p. 3*0. ** C. 3. X. III. 43-
lOCfr. Reiffenstuel, II, 23, 73 ff.; 12Cfr. Kenny, A Selection of
Santi-Leitner, II, 23, n. 13; Mess- Cases Illustrative of the English
mer, /. c, p. ia6 f. Law of Tort, is>°4» P- 5+8-
Q
"■
OU^IL UNIVERSITY QFWI5C0NSIN
CHAPTER VII
THE OATH OF THE PARTIES
The last means of proof is the oath or invocation of the
Divine Name in testimony of the truth. The Code dis-
tinguishes three kinds of oaths : the supplementary, the
estimatory, and the decisive oath.
the supplementary oath
Can. 1829
Si habeatur semiplena tantum probatio nee alia
probationis adiumenta iam supersint et iudex aut
iubeat aut admittat iusiurandum ad probations sup-
plendas, hoc iusiurandum dicitur suppletorium.
Can. 1830
§ 1. Huic iuriiurando vel maxirne locus est cum
adiuncta, quae civilem vel religiosum personae statum
respiciunt, aliter comperiri nequeunt.
§a. Sed eodem abstineat iudex turn in causis
criminalibus, turn in contentiosis, si de iure vel re
magni pretii agatur aut de facto nimii momenti, aut si
ius, res, factum non sit proprium personae cui
iusiurandum esset deferendum,
§3. Deferri autem hoc iusiurandum potest sive ez
officio, sive ad instantiam alterius partis, vel
promotoris iustitiae. vel defensoris vinculi, si iudicio
intersint
274
>Ic
k ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
—
a
1
CANONS 1829-1831 275
§ 4. Regularity dcf cratur ei qui planiores habet
probationes.
§ 5. Iudicis tamen est decreto definire an et quando
adiuncta concurrant, cur iusiurandum suppletorium
deferri debeat.
Can. 1831
§ 1. Pars cui iusiurandum suppletorium defertur in
rebus quae ad eius statum civilem vel religiosum non
pertinent, potest ex iusta causa illud recusare vel in
adversarium ref erre.
§ a. Quami autem haec recusatio facienda sit, utrum
iusta sit, an potius confessioni aequiparanda, iudicis
est aestimare.
§3. Iusiurandum suppletorium, ab una parte prae-
stitum, potest ab altera impugnari.
The supplementary oath supplies a missing proof and
therefore takes the place of a witness or other instrument
of evidence. It may be that the plaintiff has produced
one witness who was not rejected, but has none other at
his disposal to prove his contention. Or the parties may
grow weary of a protracted trial, and therefore resort to
this last expedient. The judge, too, may have exhausted
all the means of evidence. In this case he may permit,
nay even command, the oath to be taken in order to supply
the wanted evidence.
The cases in which this oath may or may not be ad-
tninistered are the following:
1. When the personal status of a person, either civil
or religious, cannot otherwise be determined, i.e., whether
one is a layman, legitimate or illegitimate, a clergyman
or a religious, married or unmarried, free or slave, pos-
sessed of a title or not. This is rather new legislation.
G 1 Original from
OOglL UNIVERSITY OF WISCONSIN
276 ECCLESIASTICAL PROCEDURE
for the commentators 1B generally contended that the sup-
plementary oath could not be administered in cases con-
cerning the personal status, although in matrimonial cases
they limited this exception to a marriage to be solved.
Our text admits the oath even in these cases, provided
no other evidence can be obtained.
2. In criminal cases the judge shall not admit the oath.
Among these the authors also reckon the so-called causa
famosa, which involved infamy by law.14 The judge
shall furthermore abstain from demanding this oath in
civil matters if:
a) the right or thing involved is of great value, or the
fact, i.e., the case itself, is of great importance; or if
b) the right, object or case concerns, not the party to
whom the oath should be administered, but another. As
to a) there can hardly be any doubt that matrimonial
cases fall under this heading, because of their importance ;
besides magni pretii applies to alienations, which sub-
stantially change the condition of a church or corporation.
And the latter case should also be applied to b) because
it concerns administrators and guardians.
3. This oath may be administered either ex officio or
upon the demand of the other party, or of the promoter
iustitiac or the defensor vinculi, if present at the trial.
4. As a rule this oath is administered to the party who
has furnished fuller or better proofs. The reason for
this ruling is that the oath is privileged evidence, but
supplementary only. Hence on one side some proofs are
required, because if no proofs at all are given, the de-
fendant must be absolved ; and on the other, even semi-
proofs, which ordinarily would justify the administration
of the oath, may be shaky or weakened by contrary evi-
l*Cfr. Reiffcnstuel, II, 24, n. 14 Rdffeoituel, II, 24, n. *i7«
319; Santi-Leitoer, II, 24, n. 27.
GoogI
Original from
UNIVERSITY OF WISCONSIN
CANONS 182^1831 777
deuce. It does not matter whether the plaintiff or the
defendant has furnished the better evidence.
5. The judge must decide by a formal decree whether
and when the circumstances are such as to admit a sup-
plementary oath. A slight presumption will not move a
conscientious judge, who may, however, proceed accord-
ing to the rules of probabilism, provided he takes into ac-
count the preceding canons. Strong evidence, and espe-
cially a violent presumption in favor of this privileged
proof, would certainly suffice.15 The next question, ac-
cording to can. 1831, is the acceptance or refusal of the
oath and the weight of a refusal.
The party to whom the oath is to be administered, may
refuse to accept and rebut it, if there is a just reason,
and the oath does not concern the civil or religious status
of the person. Omitting this last clause concerning the
status of a person, concerning which the legislator does
not admit a refusal, there may be good reasons for refusal.
Such a reason would be if the party had sufficiently proved
the action or exception, or if nothing had been proved
against him, or if the oath would refer to matters unknown
by personal experience (de scientia propria) because the
oath, being an accessory testimony, must have reference
to one's own knowledge (de proprio audit u aut visu) ;
or if one of the reasons for the matter itself, as stated
in can. 1830, § 2, would exist.18
How much weight should be attributed to such a re-
fusal, is the reason just, and may the refusal be equal
to self-confession? are questions which depend on the
judge.
The oath given by one party may be attacked by the
other, for the very same reasons which prompted refusal.
Besides, since this oath supplies the deficiency of wit-
is Reiffenstuel, II, 24, xw. 174 ff. ia Santi-Leitner, II, 14, n. 51.
Go >gle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
■
1
278 ECCLESIASTICAL PROCEDURE
nesses, the qualifications of a witness may here be brought
into play.
iuramentum aestimatosium
Can. 1832
Si de iure ad damni reparationem constet, sed quan-
titas damni aestimari certe non possit, iudex potest
parti quae damnum passa est, iusiurandum deferre,
quod aestimatorium dicitur.
Can. 1833
In deferendo iureiurando aestimatorio :
i.° Iudex a parte, quae damnum passa est, pet at ut
sub iurisiurandi sanctitate designet res sibi ablatas vel
dolo perditas, earumque pretium et valorem secundum
probabilem suam aestimationem exprimat ;
a.° Si taxatio iudici nimia videatur, earn ad aequita-
tem reducat, prae oculis habens omnia indicia ct argu-
menta usu comprobata, adhibitis ctiam, si opus sit,
peritis, quo magis veritati et iustitiae consulatur.
If the right to indemnity is established, but the amount
of the damage cannot be ascertained, the judge may de-
mand an oath of the injured party. This oath is called
estimatory. The party who suffered the damage swears
as to what has been taken from him either by violence XT
or fraud and states the price and value of these things
according to the best of his knowledge.
If the estimate is deemed excessive by the judge, he
shall reduce it according to the most probable indications
and customary methods of appraising; he may also em-
ploy experts in order to find out the truth and be just to
both parties.
l" Cfr. c. 7, X, I, 40; c. 32, X, II, 24 (usury).
*Ic
J ^ Original from
UNIVERSITY OF WISCONSIN
CANONS 1834-1836 279
IURAMENTUM DECISOR1UM
■
Can 1834
§ 1. Non solum ante initam litem partes con venire
possum ut contra versia per iusiurandum ab alterutra
praestandum transigendo dirimatur, sed pendente
quoque lite et in quolibet eius momento et statu, altera
pars potest, iudice probante, alteri iusiurandum de-
ferre, ea conditione ut quaestio, s"re principalis sive
incidens, secundum iusiurandum decisa habeatur.
§ 2. Iusiurandum huiusmodi dicitur decisozium.
t Can. 1835
■
c
»
c
t
t
Decisorium iusiurandum def erri nequit, nisi :
i.° De re, in qua cessio et transactio admittitur, et
quae pro litigantium personis non sit nimii momenti
seu pre tii ;
a.° Ab eo qui cedere aut transigere potest;
3.0 Ei, qui cedere vcl transigere valet, quique paritcr
pro ae non habeat plenam probationem ;
4.0 De mera notitia facti aut de facto, quod proprium
sit illius, cui iusiurandum defertur,
■
Can. 1836
§ 1. Hoc iusiurandum potest a parte, a qua dclatum
est, revocari quousque praestitum non fuerit, et ab
altera parte acceptari et praestari, vel minus, aut re-
ferri in adversarium.
§ 2. Praestito iureiurando, quaestio secundum iura-
tam formulam finita est, perinde ac si cessio aut
transactio iudicialis intercessisset.
§ 3. Si iusiurandum recusetur nee referatur in
.'le
/".,., -J,-, Original from
UNIVERSITY OF WISCONSIN
38o ECCLESIASTICAL PROCEDURE
adversarium, iudicis est aestimare quanti facicnda sit
recusatio, utrum iustis innitatur causis an potius con-
fession! lit aequiparanda.
§ 4. Si in adversarium referatur, hie debet illud prae-
stare, secui causa cadit.
§ 5. Ut iusiurandum in adversarium referrt pot sit,
cacdem iliac concurrant conditiones ncccssc est, quae
ad illud deferendum requiruntur, atque idem intercedat
iudicis ministerium.
This oath is called decisive because it decides between
victory and defeat and its effect consists in settling the
trial or controversy. It may concern the principal issue
or merit of the cause (causa principalis) or it may refer
only to an incidental matter related to the point at issue.
But it rests upon a mutual agreement between the parties.
If the parties agree to settle their dispute by this oath
before the trial has begun, the settlement resembles a
transactio, on which see can. 1925 ff. If the oath is de-
manded during the trial, it can be demanded of the other
party only with the approval of the judge, but may be in-
terposed at any moment or stage of the trial.
The decisive oath can be taken only in the following
cases :
1. In matters admitting cession and transaction, pro-
vided they are not of too great importance or value for
the litigants. The reason is the danger of perjury.
2. When the parties are capable of making cession and
transaction, they may demand and give the oath, provided
full proof has not been furnished.
3. Concerning knowledge of the fact, or concerning a
fact connected with the party who has to swear ; because
this oath is one of truth, and not of credibility. Therefore
they are supposed to swear de propria scientia.
■"■
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
N
CANON 1836 281
-
This oath may be revoked by the party who demanded
it, as long as it has not been taken ; it may also be ac-
cepted or rejected, given or not given by the other party,
or reversed by one party upon the other.
After the oath has been given, the case is settled ac- t
cording to the tenor of the formula, just as if cession or
transaction had taken place. If the oath is refused —
it may be refused for the reasons stated above.— and not
retorted upon the adversary, the judge should deliberate
how much weight is to be attributed to this refusal,
whether it was just or amounted to a confession of guilt.
Should the competitor upon whom the oath was re-
torted refuse to swear, he is defeated.
An oath may be retorted upon the adversary for the
same reasons for which it may be demanded.
For the rest, this oath is to be treated in much the same
way as the supplementary oath.
■"-
-
1
B
C
O
-
e
a
-
.
~-
■
S
B
-
K
.".
•
-
<
*
—
• -
-
\fl
-■
■-:
n
£
-
I Original from
1 K H 'gie UNIVERSITY OF WISCONSIN
TITLE XI
INCIDENTAL QUESTIONS
Either at the beginning or in the process of a trial
there may arise questions which have either a remote or
proximate bearing upon the issue. Thus at the very be-
ginning exception may be taken against an incompetent
or suspected judge, or against the right of the other party
to go to court, or against their attorney and counsel, or
against the validity of the summons, and all these matters
must be decided before the trial can proceed. In the
course of the trial questions may arise concerning bail and
sequestration, or the admission of evidence.1 Hence this
title is logically inserted after the different kinds of evi-
dence have been set forth.
There are certain incidental questions which are com-
mon to all trials; these concern contempt and attempts,
which are comprised under the present title.
c
■
DEFINITION. PROPOSAL AND ACCEPTANCE
ft
Can. 1837
a
Causa incidens habetur, quoties, incepto saltern per
citationem iudicio, ab una ex partibus aut a promotore
iustitiae vel vinculi defensors, si iudicio intersint,
quaestio proponitur quae, tametsi libello, quo lis
introducitur, non contineatur expressc, nihilominus ita
1 Cfr. Legs, Comptndium it also be called ilde issue* or special
lu Hats BCCL, 1906 n. 419 tt , p. demurrers; Me BlsckstOQC, III,
aao f . Incidental questions might S jijff.
afia
oogle,
% %\^ Original from
UNIVERSITY OF WISCONSIN
CANONS 1837-1839 283
ad causam pcitinct ut resolvi plerumque debeat ante
quaestionem principalem.
Can. 1838
Causa incidens proponitur vel oretenus vel per
libellum, indicate nezu qui intercedit inter ipsam et
causam principalem, et servatis, quoad eius fieri
potent, regulis can. 1706-1725 statutis.
Can. 1839
Judex, libello vel petitions verbali receptis, auditis
partibus, et, si opus sit, promotore iustitiae, vel vinculi
defensore, aecum deliberct num proposita incidens
quacstio futilis sit et ad retardandum principale iudi-
cium unice exciuta; itemque num causa incidens talis
sit naturae et tali nexu cum causa principali cohaereat,
ut ante earn resolvi debeat. Si ita se res habeat, li hel-
ium vel instantiam admittat; aliter decreto suo earn
reiiciat.
1. An incidental question is one which, though not ex-
pressly contained in the introductory bill, is so intimately
conected with the point at issue that it must be settled
before the principal controversy is defined, for instance, k
the competency of the judge. Every such question must
be proposed after the trial has begun, i.e., after the sum-
mons was duly made, and it may be introduced by the
party himself or by the promotor iustitiae, or by the
defensor vinculi, if these officials are present.
2. A side-issue may be proposed either orally or in
writing. But its connection with the main issue must be
pointed out and the question raised must be in keeping
with the rules laid down for the bill and the summons.
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
284 ECCLESIASTICAL PROCEDURE
as stated in can. 1706-1725. If there are several inci-
dental questions, the ordo cognitionum, as set forth in
can. 1627— 1635, must be observed.
3. After having received the oral or written petition
. for a hearing of incidental questions, the judge shall first
invite the parties and, if necessary, also the promoter
iustitiae and the defensor vinculi, to hear their opinion.
Then he shall deliberate with himself whether the side-
issue raised has any solid foundation, or is futile, or
only raised in order to delay the settlement of the main
issue. He shall also carefully consider whether the in-
cidental question is of such a nature and so connected
with the main issue that it requires preliminary settle-
ment. If this is the case, he shall admit the petition;
otherwise he shall issue a decree rejecting it.
form of settling incidental questions
Can. 1840
§ 1. Utrum incidens quae excitetur questio, defini-
enda sit iudicii forma servata, an mero decreto, iudcx,
attenta rei qualitate et gravitate, aestimct.
§ 2. Si causa incidens sit iudicialiter definienda, re-
gulae, quoad eius fieri poterit, servandae sunt, quae in
ordinariis iudiciis obtinent ; curet tamen iudex ut dila-
tionum termini sint quam rnaxirne breves.
§ 3. Iudex in decreto quo, non servata iudicii forma,
vel reiicit vel definit quaestionem incident-em, rationes
quibus innititur, in iure et in facto breviter exponat.
Can. 1 84 1
Antequam finiatur causa principalis, iudex interlo-
cutoriam sententiam potest, iusta intercedente causa,
jle
f^ -. v JY, Original fro ni
UNIVERSITY OF WISCONSIN
-'
CANON 1841 285
corrig ere aut rcvocarc sivc ex sc, auditis partibus, sivc
ad instantiam unius partis audita altera parte, et re-
quisite semper voto promotions iuatitiae aut defen-
soris vinculi, si adsint
If the judge refuses to admit the incidental question
by a formal decree, no appeal from this decision is per-
mitted, unless — which, however, is hardly imaginable
— his decision should forestall, or amount to, a final sen-
tence.4 But if he admits the incidental question, there
are, according to our Code, which introduces new regu-
lations in this matter, two ways open to settle the side-
issue :
a) A mere formal decree may be issued by the judge,
with due regard to the character and weight of the side-
issue, or
b) The matter may be settled in judiciary form.
If the settlement is made by decree of the judge, who
has either refused to admit the incidental question or
solved it without the formality of a judiciary trial, he
must briefly state the reasons of law and fact for his
decree. The reason of law, or special demurrer, may be
based on the lack of a formal rule which the law would
otherwise prescribe. A reason of fact would be if the
fact itself were denied or disputed, for instance, the
enmity of the judge towards the other party.
If the judge, after due deliberation, has decided to
settle the incidental question in judiciary form, he must,
as far as possible, proceed along the lines prescribed
for ordinary trials, but should take special care that the
dilatory term be shortened as much as possible.
The text undoubtedly refers to the ordinary method
a Trid., Sen, 13, c. 1; Sett. 24, cc, ic, 20, dt ref.; Lega, I. c, n.
4J6, p. mi.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
286 ECCLESIASTICAL PROCEDURE
of procedure, i.e., the observatio solemnis ordinis iudi-
ciarii, to the apparent exclusion of summary proceed-
ings. It was generally admitted before the promulgation
of the Code that, in settling incidental controversies, a
summary procedure was sufficient. Our text seems
positively to exclude it. The reason is not far to seek.
The judge is ordinarily permitted to settle such issues
by a formal decree, but if the matter is of great impor-
tance, the regular judiciary way should be adopted. Yet
the text seems covertly to admit summary procedure, be-
cause it adds : u quoad eius fieri poterit."
The essential requisites for a summary procedure are
the following:
1. The petition or bill containing the controversy, as
stated in can. 1706 ff., but no solemnis libelli oblaiio.*
2. The summons, as described in can. 171 iff.
3. The means of evidence, to which belong the ques-
tioning of the parties and all kinds of evidence ; but the
oath of the witnesses * and the iuramentum calumniae are
not essential.
4. The grant of dilatory terms and exceptions, which,
however, according to our Code, must be reduced to the
shortest possible time, in order not to delay the final
sentence unnecessarily; but no solemn closing of the pro-
cedure is required.
5. The interlocutory sentence, according to can. 1868 ff.,
which, though void of accidental solemnities, must be
given in writing.
This last named sentence, according to can. 1841,
proffered before the main issue is settled, may be cor-
rected or revoked by the judge for any just reason, be-
1 Cf r. Legs, /. c, n. 457 t. ; Met* iuramtntum caUmmiat the Code u
mer, I. e., p. 68 f. silent.
4 See can. 1767, I 3- °n the
oogle
i*~^ -» v J„ Original fro ni
UNIVERSITY OF WISCONSIN
N
■
o
CANON 1841 287
cause it does not terminate the office of either the dele-
gated or the ordinary judge. For this reason the judge
shall hear the parties in order to learn, whether they think
themselves injured or curtailed in their rights by the inter-
locutory sentence. If one party insists upon a change
or correction in the interlocutory sentence, the other
party, too, must be heard. If the promotor iustitiae or
the defensor vinculi are present, their opinion must also
be asked.
G I Original from
OOglL UNIVERSITY OF WISCONSIN
■
c
CHAPTER I
CONTUMACY OR CONTEMPT OF C0U8T
As stated above, there are incidental questions common
to all trials. One of these is contumacy, or grave dis-
obedience shown to the ecclesiastical judge who has le-
gitimately summoned one to appear in court. In crim-
inal cases contumacy is generally called contempt of court,
and in the civil law it creates a presumption of guilt. In
civil cases it is simply styled default to appear or plead
in court, which follows the presumption that the plain-
tiff has renounced the right to prosecute. Contumacy
may be shown by the defendant as well as by the plain-
tiff.
CONTUMACY OF THE DEFENDANT
Can. 1842
Reus citatus qui sine iusta causa nee ipse per se
nee per procuratorem comparet, contumax declarari
potest.
Can. 1843
§ 1. Non potest iudex reum contumacem declarare
nisi prius constiterit:
i.° Citationem, legitime factam, tempore utili ad rei
notitiam pervenisse aut saltern pcrvenire debuisse;
2.0 Reum absentiae excusationem afferre neglexisse
aut non iustam attulisse.
§ 2. Haec comprobari possunt sive per novam cita-
288
s'c
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
N
■
CANONS 1842-1845 289
tionem reo factam ut contumaciam suam, si possit, ex-
cuse!, sivc alio modo.
Can. 1844 !
§ 1. Ad instantiam partis vel promo tor is iustitiae vel
vinculi defensoris, si iudicio intcrsint, iudex rei contu-
maciam declarare potest, eaque dcclaraia, procedere,
servatis servandis, usque ad sententiam dcnnitivain
eiusque exsecutionem.
§ 2. Si procedatur ad sententiam defini tivam, lite non
contestata, sententia respicere tantum debet pctita in
libello; si lite contestata, ipsum contcstationis obiec-
tum.
Can. 1845
§ 1. Sed potest quoque iudex ad frangendam rei con-
tumaciam comminari ecclesiasticas poenas.
§ 2. Quod si facere velit, iteranda est rei citatio, cum
comrni nation e poena rum; nee iarn tunc licet aut con-
tumaciam declarare aut, ea declarata, poenas irrogare,
nisi probetur banc quoque secundam citationem sub
efFectu caruisse.
I, A defendant who has been duly summoned, and
does not appear in court either personally or by proxy,
may be declared to be in contempt-' (a) if the summons,
as described in can. 171 iff., was lawfully issued and
reached or at least might have reached the defendant
within a reasonable time; (b) if the defendant failed to
excuse himself, or offered no legitimate reason for his
non-appearance in court.
To prove contumacy, a second summons may be issued,
in order to give the defendant time to excuse his non-
appearance. But if the judge deems it more expedient,
lOOgK. UNIVERSITY 0FWI5C0NSIN
■
290 ECCLESIASTICAL PROCEDURE
another course may be taken. If two witnesses testify
that the summons was duly served and received by the
defendant, the judge may proceed as stated in can. 1844,
because in that case he is certain of his ground and he
who is certain need not strive for greater certainty.1 But
if he issues a new summons, a term must be set for
appearance, and only after this term has expired, may
contumacy be declared.2
2. But the necessary declaration may also be made
upon the demand of the other party, or of the fiscal pro-
motor or defender, if present at the trial. As soon as
contumacy has been declared, the judge may proceed to
the final sentence and its execution, provided he observes
the rest of the rules prescribed (servatis servandis).
This means that the proceeding is regular and conducted
along the general rules governing trials, with the sole
omission of the parts which the defendant would play if
he were present; therefore the interrogatories, the con-
frontation, and the self-defence are omitted; but the con-
troversial points should be communicated to the defend-
ant if he can be reached.8
If no contestatio litis has as yet taken place, the sen-
tence can only be directed to the object or petition con-
tained in the bill of complaint ; i.e., only so much can be
granted as was asked for in the petition offered to the
judge, and no more. On the other hand, if contumacy
has been declared after the issue in pleading, the sentence
shall cover all that the plaintiff pleaded for and the de-
fendant denied, because the latter is supposed to have
been present at that moment.
Can. 1845 permits the threat of ecclesiastical penalties
in order to force a stubborn recusant or contumax to be
1 Re*, juris js la 6*. • Rig. S. RR., An*. 4, <9<°, I »*«t
iRtgulo* S. R. R., Aue. 4. ittio. n. 6 (A. At. S.. II. 793).
1 36 (A. Ap. S. II, 79a).
jle
j ^ • Original fro ni
UNIVERSITY OF WISCONSIN
CANONS I846-1R48 291
obedient, not merely, as the Tridentine Council admitted,*
in order to make him accept the sentence and its execution.
But if the judge wishes to make use of this juridico-
ecclesiastical weapon, he must issue a second summons
in which this threat is directly mentioned. However, even
after the second summons, contumacy may be declared
and the penalty inflicted only when proof has been given
that this second summons, like the first, was ineffective
or unheeded. The proof can be furnished as stated
above, or by public courier.
desisting from contumacy
Can. 1846
Rei a contumacia recedentis seque in iudicio sistentis
ante causae defmitionem, conclusiones probationesque,
si quas afferat, admittantur; caveat autem iudex ne
mala fide in longiorea et non necessarias moras iudi-
cium protrahatur.
Can. 1847
Poat latam vero scntentiam, contumax bencficium
restitutions in integrum ad appellandum ab ipso
iudice qui earn tulit, petere potest, non ultra tamen
trimestre ab ipsius sentcntiae intimatione, nisi agatur
de causis quae non transeunt in rem iudicatam.
Can. 1848
Regulis superius traditis etiam turn locus est cum
reus, etsi primae citation! obtemperaverit, fit tamen
postca, progressu iudicii, contumax.
4 S«M. 15, C. 3, de ttf.; Mei*nie», p. 137.
oogle
% ,|r. Original fro ni
UNIVERSITY OF WISCONSIN
-
292 ECCLESIASTICAL PROCEDURE
If the contumacious defendant appears in court before
the final sentence, his claims and proofs, if he has any,
must be admitted ; but the judge must assure himself that
the defendant's motive in postponing his appearance was
not to prolong the trial unnecessarily, or to wear out
the judge and the plaintiff.
: If the defendant appears in court after the final sen-
tence has been given in his case, the only mode of ap-
peal open to him is by restitutio in integrum, which he
must ask for within three months from the date of the
sentence. A longer term is admissible only in matters
which never become res iudicatae, as, for instance, ma-
trimonial cases.
The rules so far laid down also hold in case the de-
fendant, after having obeyed the first summons, becomes
contumacious in the course of the trial.
contumacy of the plaintiff
Can. 1849
c
Si die et hora, qua reus secundum citationis prae-
scriptum coram iudice primum se sistit, actor non ad-
sit, nullamque vel insufficientem absentiae cxcusa-
tionem attulerit, iudex eum ad instantiam rei conventi
citet iterum ; et si actor novae citationi non paruerit vel
postea iudicium inchoare vel inchoatum prosequi ne-
glexerit, instants reo convento vel promotore iustitiae
aut defensore vinculi, contumax a iudice declaretur,
iisdem servatis regulis quae supra traditae sunt pro
rei contumacia.
The Code has combined two apparently contradictory
Decretals8 in such a way that no collision is possible.
*C. 3. Xt n, 14; c 1, 6\ II, 6.
jle
% ,|r> Original fro m
UNIVERSITY OF WISCONSIN
-'
■
pi
CANON 1850 293
Suppose the summons was duly issued and the defendant
appears in court on the appointed day and hour, but the
plaintiff demurs. This seems to be a grievous offence,
because it was the plaintiff who caused the summons to
be issued and who is bound to prosecute the case. There-
fore it might naturally be expected that the judge would
be stricter in case of contumacy towards the plaintiff
than towards the defendant, and a second summons would
be regarded as unnecessary.0 But the Code leans towards
a more equitable treatment and orders another sum-
mons to be issued, even if the defendant demands it, and
the plaintiff had no excuse, or at least no sufficient rea-
son, for not appearing in court. And if this second sum-
mons is unheeded by the plaintiff, or if he does not begin
or pursue his case in court, he is declared in contempt,
provided either the defendant or the fiscal promoter or
defender insist upon such a declaration. For the rest,
the rules laid down for the defendant in contempt cases
must be applied.
effect of contumacy
Can. 1850
§ 1. Actoris contumacia a iudice declarata perimit
eiusdem actoris ins ad suam instantiam prosequendum.
§ 2. Permittitur tamen promotori iustitiae vel vinculi
defensori instantiam facere suam eamque prosequi,
quoties publicum bonum id postulare videatur.
§3. Reus autem exinde ius habet petendi ut vel1
libere possit a iudicio abire, vel nulla habeantur omnia*
co usque gesta, vel definitive ipse absol vatur a petitione
«Thui in c. I, 6°, II, 6, wkilit Santi-Ldtner, II, 14. n. 6f.; Legs,'
c. 3, X, II, 14 seems to admit omis- I. c, n. 436.
•ion of lummoni to plaintiff; see
I Original from
lOOglC UNIVERSITY OF WISCONSIN
-'
294 ECCLESIASTICAL PROCEDURE
actons, vel iudicium, abscntc quoque actore, ad finem
adducatur.
Can. 1851
§ 1. Qui con t umax declaratus contumaciam suam
non purgaverit, sive actor sit sive reus, condemnetur
turn ad litis expensas, quae ob suam contumaciam
factae sunt, turn etiam, si opus sit, ad indemnitatem
alteri parti praestandam.
§ 2. Si turn actor turn reus Bint contumaces, ad ex-
pensas litis tenentur in solidum.
If the plaintiff has been declared contumacious, he for-
feits the right of prosecuting the case, because he is sup-
posed to have renounced that right. However, if the case
concerns the public welfare, as, for instance, in criminal,
ordinational, and matrimonial matters, either the promo-
tor institute or the defensor vinculi may continue the pros-
ecution in his own name.
The counter effect of a declaration of contempt against
the plaintiff is that the defendant may demand his dis-
charge, or that all the proceedings so far have to be con-
sidered null and void, or that he be definitely freed from
the claims of the plaintiff, or that the trial be brought
to a close even during the absence of the plaintiff.
If either the plaintiff or the defendant has been de-
clared contumax and has not purged himself of this
stain, he must be condemned to bear the expenses caused
by his contumacy, and if necessary, also to indemnify the
other party. If both, plaintiff and defendant, have been
contumacious, they are bound to defray the expenses thus
far incurred in solidum, i.e.t each one the whole expense
if either should be insolvent or beyond reach.
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
.
-
CHAPTER II
INTERVENTION OF A THIRD PERSON
Can. 1852
§ 1. Is cuius interest, admitti potest ad intervenien-
dum in causa in qualibet litis instantia.
§ 2. Sed ut admittatur, debet ante conclusionem in
causa libellum iudici exhibere, in quo breviter de iure
interveniendi ipsum cdoccat.
§ 3- Qui intervenit in causa, admittendus est in eo
statu in quo causa reperitur, assignato eidem brevi ac
peremptorio termino ad probationes suas exhibendas,
si causa ad periodum probatoriam pervenerit.
Can. 1853
Si tertii interventus appareat necessariusff iudex ad
instantiam partis vel etiam ex officio debet interventum
in causa iubere.
Intervention is perhaps best known from international
law, where it means interference by one state in affairs
pending between two or more other states that have either
gone to war or reached a degree of tension clearly threat-
ening war. The interest of the intervening state as well
as that of international society justifies such interfer-
ence.1 Similarly, not only the plaintiff and defendant,
but a third person, too, may be concerned in the issue of
1 WettUke, International Low, P. I, Peace; 1910, p. 317.
295
ed by GoOgle
Original from
UNIVERSITY OF WISCONSIN
2g6 ECCLESIASTICAL PROCEDURE
a trial, for instance, a legacy or a matrimonial case in-
volving legitimacy.
Hence our text admits intervention by interested per-
sons in any case and at any stage. However, in order to
be admitted, the third party must, before the conclusio in
causa, present a bill briefly stating the claim on which
he bases his intervention. As intervention is permitted
at any stage or instance of the trial, the judge who has
been chosen by the plaintiff, either in the first instance or
the court of appeal,2 may take cognizance of and admit
the intervention. The one who intervenes must be ad-
mitted only at the stage or instance which the trial had
reached when he came in, for instance, after the litis
contestatio, or at the defence of the parties, or at the con-
clusio in causa, or, finally, in the instance of appeal. And
from that point onward the third party may be present at
all the acts. But the text adds that brief and peremptory
terms should be assigned to the third party for his evi-
dence if the trial is near the point where the evidence is
gathered in.
Can. 1853 mentions necessary intervention, undoubtedly
to distinguish it from another, which is called voluntary.
The latter is intervention spontaneously offered by a
third person in order to help either of the litigants;
whereas necessary intervention is commanded by the
judge, either at the demand of a party, or ex officio. In
the latter case the promoter iustitiae should, or at least
may, be notified."
SC. 38, X, II. 20; cfr. Wernz, 3 Reguiae S. R. R. Aug. 4. 1910,
/. c, V, n. 177 t, p. 1S6L I 97, n. a (A. Ap. S., II, 815).
■I
jle
£ * -» v J„ Original from
UNIVERSITY OF WISCONSIN
■
pi
CHAPTER III
attempts pending the trial
Can. 1854
Attentatum est quidquid, lite pendente, aut altera
pars adversus alteram aut ipse iudex adversus alteru-
tram vel utramque partem innovat, parte dissentiente
et in eius praeiudicium ; sive innovatio respiciat litis
materiam, salvo tamen praescripto can. 1673, 1673, sive
respiciat terminos partibus a iure vel a iudice as-
signatos ad ponendos certos actus iudiciales.
Can. 1855
§ 1. Attentats sunt ipso iure nulla.
§ 2. Idcirco parti ex attentato laesae competit actio
ad obtinendam declarationem nullitatis.
§3. Actio haec instituenda est coram ipso iudice
causae principalis; quod si ob attentatum pars laesa
iudicem suspectum habeat, exceptionem suspicionis
potest opponcrc, in qua procedendum est ad nonnan
can. 1G15.
*
Can. 1856
§ 1. Pendente quaestione de attentato, cursus causae
principalis regulariter suspenditur, sed si iudici oppor-
tunius videatur, quaestio de attentato potest una cum
causa principals pertractari et resolvi.
§ 2. Quaestionea de attentates expeditissirae sunt per-
>Ic
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
298 ECCLESIASTICAL PROCEDURE
tractandae et decreto iudicis definiendae, auditis parti-
bus et promotore iustitiac vel dcf cnsorc vinculi, si hi
iudicio intersint.
Can. 1857
§ 1. Demonstrate attentato, iudex decerncre debet
eius revocationem seu purgationem.
§ 2. Quod si attentatum vi vel dolo patraturn sit, qui
illud commisit, tenetur etiam de damnis erga partem
laesam.
The trial, according to can. 1725, 5°, becomes pending
after the summons has been duly served or the parties
have appeared in court of their own accord. The ob-
ject of the quarrel is then litigious (res litigiosa),1 and
any change of, or any act against, that object is called
an attempt (attentatum) , provided it is prejudicial or
detrimental to one of the parties concerned.2
It is also called an innovation because it alters the
judicial status of the object. Every " attempt " is against
the inhibition of the law (inhibitio iuris), because, as
stated above, the Code forbids any innovation while the
trial is pending. To this general inhibition must also be
referred the terms set up by law, as, for instance, for ap-
peals, in can. 1634.
The judge himself may fix definite terms for certain
judicial acts, for instance, for the experts (can. 1799,
§ 2). These are inhibitiones hominis or iudicis} Hence
our Code calls an attentatum whatever savors of innova-
tion attempted by one party against the other, or by the
judge against one or both parties, provided it is made
(a) pending the trial, (b) against the will of the other
lC. 50, C. 11. q. I. s Lega, /. e., n. 429*
3C. 3. X, II, 16.
ioi >gle
% ,|,, Original fro rn
UNIVERSITY OF WISCONSIN
CANONS 1854-1857 . 299
party, and (c) to th^e detriment or prejudice of the other
party.
The object of an innovation may be:
a) the subject of the trial (materia litis), or
b) the terms assigned either by law or by the judge.
The object may concern real as well as personal action.
Thus innovatio is forbidden in matrimonial cases which
are pending on the score of a diriment impediment, and
the parties must not be separated, or be denied their mar-
ital rights until the case is settled.
However, this applies only to the court decision; the
party who is absolutely certain of the existence of a
diriment impediment would not be allowed either to ask
for, or render, the debitum.4 Other litigious matter
which may occur in ecclesiastical courts are church prop-
erty, benefices, and provisions or appointments. The
Code makes an exception from can. 1672 f ., which refer
to sequestration of a litigious object and bailment or
security, as these are not considered attempts, being per-
mitted by law.
The effect, negative and positive, is stated in canon
1855, which decides (thereby settling a controversy) that
all attempts are null and void ipso iure, and not merely
rescindible.5
However, the term ipso iure is to some extent modified;
for the injured party is granted the right to a legal action
in order to obtain a declaration of nullity of the attempt.
Therefore, if the party should take no action with regard
to the attempt, we hardly believe that the judge would
have to interfere. At least there is no hint that the judge
4 Rdffcnituel, II, 16, n. it t. 6 Concerning Alienation of a Hti
The reader of Vol. V of oar Comm., gioua matter the Authors were not
f. 3*7, line 10 from below, wilt agreed; tome held that it was re-
pleaae change the word certain into iciQdible only. Reiffenatael, II, 16,
uncertain, the former being m mi* n. 30 ; Lega, /. c, n. 430.
print.
Go >gle
I , Original from'
UNIVERSITY OF WISCONSIN
3oo ECCLESIASTICAL PROCEDURE
would have to proceed ex officio. On the other hand, it
would hardly be advisable for the judge not to proceed
ex officio in beneficiary cases, on account of can. 1447.
The action against attempts must be brought before the
judge who is competent in regard to the main issue.
However, if exception should be taken to the judge, be-
cause of suspicion, this must first be solved according
to can. 1615.
Another effect of the attentatum is mentioned in can.
1856, which is modelled upon the civil code issued for
the Papal States by Gregory XVI.6 It says that the
course of the main trial is, as a rule, suspended, unless
the judge deems it expedient to treat and solve the in-
cidental question concerning the attempt together with
the main issue.
At any rate questions of attempt should be treated
and settled as quickly as possible by a decree of the
judge, who shall for this purpose hear the parties and
also the fiscal promoter and the defender if they are
present.
If the attempt has been proved, the judge must decree
its revocation or purgation, which consists in the rescind-
ing of all acts that have been performed during the
inhibition, either of law or of the judge, with regard to
this one incidental question.7 Besides, if the attempt
was made by violence or fraud, the perpetrators are bound
to indemnify the injured party to an amount correspond-
ing with the period beginning at the time when the action
was brought up to the moment of its settlement.* This
indemnification includes expenses as well as the revenues
received or gain made during this time.
4 RcgoUmento legislative € giudi- T Ibid., art. 83 1; cfr. c 4, X, II,
tiario prr e/i offari ewili, Nov. 10, 13.
1834, art. 880, 884, 886. « C. a, X, II, 14; c. I, X, II, 17;
L«ga, /. c, n. 4J3.
oogle
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
■
TITLE XII
PUBLICATION OF THE PROCESS, CLOSING OF
THE EVIDENCE, PLEADING OF
THE CASE
After all the incidental questions have been settled,
or, if no such questions arose, after all the evidence has
been produced, the pleading proper or defence might
commence, were it not for two acts, one of which requires
a formal decree. They are the publication of the process
and the closing of the evidence.
the publication of the process
Can. 1858
Ante causae discussionem et sententiam omnes pro*
bationes quae sunt in actis et quae adhuc secretae per-
manserunt, sunt publicandae.
Can. 1859
Concessa partibus earumque advocatis f acultate acta
processualia inspiciendi petendique eorum exemplar,
intelligitur facta publicatio processus.
Before the defence is put up and the sentence is pro-
nounced, all the evidence contained in the acts or records
(minutes) and that which has so far been kept secret,
must be published. This is done in order to give an
opportunity to the parties to defend themselves. There-
fore they or their attorneys are permitted to inspect the
301
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
302 ECCLESIASTICAL PROCEDURE
acts of the process thus far conducted, and to obtain a
copy thereof. This grant is called publication of the
process (publicatio processus), but it is not required for
the validity of the trial, nor does it necessitate a formal
decree of the judge.
■
CLOSING OF THE EVIDENCE
Can. i860
§ 1. Expleris omnibus quae ad probationes produccn-
das pertinent, ad conclusionem in causa deveniendum
est.
§ 2. Haec conclusio habctur quoties aut partes a.
iudice interrogatae declarent se nihil aliud deducendum
habere, aut utile proponendis probationibus tempua
a iudice praestitutum elapsum sit, aut iudex declaret
se satis instructam causam habere.
§ 3. De peracta conclusions in causa, quocunque
modo ea accident, iudex decretum f erat.
Can. 1861
§ 1. Post conclusioncm in causa novae probationes
inhibentur, nisi agatur de causis quae nunquam tran-
seunt in rem iudicatam aut de documentis nunc pxi-
mum repertis, aut de testibus qui antea ob legitimuxn
impedimentum tempore utili induci non potuemnt.
§ 2. Si novas probationes admittendas censeat, id
decernat iudex, audita altera parte, cui congruum tem-
pus concedat ut novas probationes cognoscere et se
defendere possit; aliter Judicium nullius est momentL
The so-called coHclusio in causa is nothing else but a
formal declaration that the evidence is exhausted. It
requires a decree of the judge, which may be brought
t -*r\j-i!/> Original from
Gj Original trorn
OOglt UNIVERSITY OF WISCONSIN
CANON 1862 303
if
about in three ways: (a) The judge may ask the parties
to declare that they have no further evidence to produce,
or (b) the term fixed by the judge for producing evidence
may have expired, or (c) the judge may declare him-
self to be sufficiently informed.
The conclusio in causa, as a rule, forbids the bringing
forth of new evidence ; otherwise there might be no
limit to the trial and the door would be opened to undue
protraction. However, there are cases which admit ex-
ceptions, to wit:
i.° when the matter is such that it can never become
res Judicata, as in matrimonial cases ;
2.0 when new documents have come to light;
3.0 when witnesses are lawfully prevented from giving
testimony within the term assigned.
In all these cases the judge must deliberate whether
the new evidence is to be admitted or not, and if he de-
cides to admit it, he must issue a decree to that effect,
after having heard the other party, vis., the one who has
not produced new evidence. This same party must then,
under penalty of nullity of the trial, be given sufficient
time to take cognizance of the new evidence and to prepare
his defence.
defence or discussion of the case
Can. 1862
§ 1. Facta conclusione in causa, iudex, pro suo pru-
denti arbitrio, partibus congruum temporis spatium
praestituat ad defensiones suas seu allegationes sive
per Be sive per advocatum exhibendas.
§ a. Hie terminus prorogari a iudice potest instante
una parte, audita altera; vel etiam coarctari, utraque
consentiente.
'le
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
■
p
"-.
304 ECCLESIASTICAL PROCEDURE
Can. 1863
§ I. Defensio in scriptis est conncienda, ct regulariter
tot exemplaribus conscribenda quot sunt iudices, ut
singula singulis iudicibus possint exemplaria distribui.
§ 2. Sed etiam promotori iustitiae et defensor! vin-
culo, si iudicio inter sin t, debet exemplar tradi; prae-
tcrca partes inter se exemplaria commutare debent.
§ 3. Tribunalia praeses, quoties pro suo prudenti ar-
bitrio ncccssarium censeat, et sine nimio partium gra-
vamine fieri anirnadvertat, mandate potest ut defensio
typis imprimatur una cum documents principalibus
in fasciculo coniungendis, qui actorum et documen-
torum summarium continet.
§4. Quo in casu iubeat ne quidquam imprimatur,
nisi prim exhibito manuscripto et venia illud publi-
candi obtenta; praeterea sedulo caveat de tecreto, si
quod sit in causa servandum.
Can. 1864
Iudicis et in tribunali collegiali praesidis est mode-
rari, pro sua prudentia, nimiam defensionum exten-
sionem, nisi de hoc peculiari tribunalis lege sit cautum.
Can. 1865
§ 1. Communicatis vicissim inter partes defensionum
Bcripturis, utrique parti responsiones exhibere liceat,
intra breve tempus a iudice praestitutum, et scrvatis
regulis et cautelis de quibus in can. 1863, 1864.
§ 2. Hoc ius partibus semel tantum esto, nisi iudici
gravi ex causa iterum videatur concedendum; tunc au-
tem concessio, uni parti facta, alter! quoque data cen-
seatur.
i(> ^Ic
^ ,|r> Original from
UNIVERSITY OF WISCONSIN
CANONS 1863-1867 305
Can. 1866
§ I. Iniormationcs, uti vocant, o rales, quibus videli-
cet advocati iudicem de adiunctis iuris ct facti causam
respicientibus instruere satagunt, prohibentur.
§ 2. Admittitur tamen moderata disputatio coram
iudice pro tribunal! sedente ad aliquid illustrandum, si,
alterutra vel utraque parte postulante, iudex earn
utilem censeat atque admittat.
§ 3. Ad disputationem obtinendam partes exhibere
debent in scriptis quaestionum capita cum altera parte
discutienda, paucis verbis expressa; iudicis autem est
ea cum partibus hinc inde communicare, ac diem et
horam disputationi assignarc et disputationem ipsam
moderari.
§ 4. Disputationi assistat unus ex notariis tribunalis
ad hoc ut, si iudex praecipiat aut pars postulet et iudex
consentiat, possit de disccptatis, confessis aut con-
clusis, scripto ad tramitem iuris ex continenti referre.
I Can. 1867
In causia contentiosis, si partes parare sibi tempore
utili defensionem negligant, aut se remittant iudicis
a
scientiae et conscientiae, iudex, si ex actis et probatis
rem habcat plane perspectam, poterit statim sen-
tentiam pronuntiare.
o
The law laid down in these canons is entirely modern,
based on the practice of the S. Rom. Rota,1 and it would
be vain to look for precedents in the Decretals.
The chief points with regard to the defence are:
iLex Propria S. R. R., June 29, I, j6f.; II, 799ft.); some old c«n-
1908, can. 35 ff.; Rtgulae Servandae, onists mention " di atlegationibus ";
Aug. 4, 1910, I 44 ff. (A. Ap. S., see Wcrnx, V, n, 661 p. 498.
in
**
■-:
■
pi
jle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
306 ECCLESIASTICAL PROCEDURE
i.° A time is to be fixed by the judge for the defence,
end it may be prolonged or restricted.
2.° The defence is to be made in writing, and if so
demanded by the judge, — who also gives the permission,
— it must be printed. Each judge as well as the fiscal
promoter and the defender is entitled to a copy, and the
parties must exchange their defence. — •
3.0 The judge or the president of the board of judges
shall direct the defence so that it may not be unduly pro-
tracted.
4.0 After the parties have exchanged their written de-
fence, they shall prepare the answers within the time
assigned by the judge. But answers are allowed only
once, unless for weighty reasons the judge grants a second
chance for pleading. However, both parties must be
treated equally, i.e., if one party is allowed a second
pleading, the other must be offered the same oppor-
tunity.
The answers are to be in writing and, according to the
practice of the S. R. Rota, should be ready twenty days
after the written or printed defence has been distributed
and exchanged.2
5.0 Whilst oral information (by which attorneys try
to explain circumstances of law and fact to the judge,
who may thus be unduly influenced by a one-sided presen-
tation of the case) is forbidden, a moderate oral discus-
sion or pleading is permitted, if necessary to throw light
on the subject. However, it is required:
a) That this pleading be made before the court, that
it be requested by one or both of the parties, and that
the judge give his consent or deem it useful ;
b) That the permission be given only after the points
<
l Lis Propria S. R. R., c. 27. tx. 3; Rtgulae S. R. J?., Auf. 4, 1910,
I 50 (A. Ap. S., I, 37; II. 801).
( * ~k mI/. Original from
byViOO^K- UNIVERSITY OF WISCONSIN
CANONS 1863-1867 307
to be discussed have been briefly stated by the parties
in writing;
c) That the judge communicate these points to both
parties ;
d) That he set the day and hour for the discussion
of them and direct the discussion himself ;
e) That a notary immediately take down the minutes
of the discussion, including admissions and conclusions,
as often as the judge commands or either party, with
the consent of the judge, demands it.
6.° In private civil matters, if the parties do not pre-
sent their defence within the time prescribed, or commit
their case to the knowledge and conscience of the judge,
the latter may immediately pronounce sentence, provided
the acts and the evidence are so plain as to permit him
to do so.
G 1 Original from
°°8IL UNIVERSITY 0FWI5C0NSIN
TITLE XIII
THE SENTENCE
After the pleading is ended by the defence, either be-
cause nothing more can be said or because the judge deems
the evidence sufficient, the sentence must be pronounced.
The Code first defines the sentence, then states the rules
to be followed by the judge, and, finally, defines the con-
tents of the sentence and prescribes the manner of its
publication.
definition and intrinsic conditions of the
sentence
Can. 1868
•
§ 1. Legitima pronuntiatio qua iudex c a us am a liti-
gantibus propositam et iudiciali modo pertractatam
deflnit, sententia est: eaque interlocutoria dicitur, si
dirimat incident cm causam; definitiva, si principalem.
§ 2. Cetcrac iudicis pronuntiationcs decreta vocan-
tUT.
Can. 1869
§1. Ad pronuntiationem cuiuslibet sententiae re-
quiritur in iudicis animo moralis certitudo circa rem
sententia definiendam.
§ 2. Hanc certitudinem iudex haurire debet ex actis
et probatis.
§ 3. Probationcs autcm acstimare iudex debet ex sua
306
oogle
, ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
CANONS 186&-1870 309
conscientia, nisi lex aliquid expresse statuat de efficacia
alicuius probationis.
§ 4. Iudex qui earn certitudinem efformare sibi non
potuit, pronuntiet non constare de iure actons et reum
dimittat, nisi agatur de causa favorabili, quo in casu
pro ipaa pronuntiandum est, et salvo praescripto can,
1697, § 2.
Can. 1870
Sententia ferri a iudice debet, expleta causae dis-
ceptatione ; et si causa sit implicatior et contentionum
vel documentorum mole difficilior, interponi potest
congruum texnporis intervallum.
1. A sentence is the legitimate pronouncement of a
judge, by which a case proposed by the litigants and
judicially tried, is settled. It is called interlocutory if it
settles an incidental question, definitive ii it settles the
main issue. All other settlements or pronunciamentos of
the judge are called decrees.1
2. The intrinsic requisites for a sentence are the follow-
ing:
a) The judge must have moral certitude concerning the
case he settles by his sentence. Moral certitude requires
sufHcient proof to convince the judge of the righteousness
of the cause.
b) The proofs may not be sought outside of the acts
and allegations of the trial (acta et probata), because it
is not as a private citizen, but as a judge, that he must
give sentence. Hence privately gained knowledge should
not influence the decision.8
1 See Appendix, pp. 485 sqq. vate conscience. Three opinion*
a A theological question here are proposed; the first simply affirms,
arises: Ii the judge so bound by the second flatly denies, and the
the ado ti probata that he would third, which to us appears more
have to decide against his own pri- probable, distinguishes: in civil (to
G] , Original fro m
UOglt UNIVERSITY OFWISCONSIN
■
pi
310 ECCLESIASTICAL PROCEDURE
c) Yet the judge must weigh the evidence accord-
ing to his own conscience. He must know the law and
acquaint himself fully with the evidence. The rule is
that all other things being equal or the testimony being
equally strong on both sides, the decision should be in
favor of the possesser, because melior est conditio possi-
dentis.9 Hence our text adds the clause : unless the law
itself should state something definite concerning the
weight of evidence. Every sentence opposed to a clear
and express law text would be ipso iure null and void,
for the judge has not to reverse, but to uphold the law/
d) From this naturally follows the corollary set forth
in can. 1869, § 4: If no certainty can be had, the judge
must pronounce in favor of the defendant and dismiss
him; unless the case is one of possession or contains or
turns about a favor, in which hypothesis, although the law
is more favorable to absolution or freedom, the favor
should be upheld.
e) The sentence must be given after the pleading has
been completed. This means immediately or soon after
the defence has exhausted its arguments. However,
there are intricate cases, rendered so by reason of the
many papers or documents that must be pondered before
the judge has a clear vision of the case, and the decision
of these may be delayed for a time.
which they also belong matrimonial) Botrix, De Iudicu Bed., I, p. 14a
cases, and in minor criminal cases, a Cf r. c »7» X, II, ao; c, 3, X,
the judge »• obliged to decide ac- II, 10.
cording to the acta et probata, but *C. I, X, II, 27; c, I, X, I, a;
not in important criminal canes; Me c. 1, 6°, II, 14.
5 'rtrinlt? Original from
,00tVL UNIVERSITY OF WISCONSI
CANONS 1871-1872 311
HOW A BOARD OF JUDGES OR ONE JUDGE PRONOUNCES
SENTENCE
>
Can. 1871
§ 1. In tribunal* collegiali, qua die et hora iudices ad
deliberandum conveniant, collegii praeses conatituat;
ct nisi peculiaris causa aliud suadcat, in ipsa txibunalis
sede conventus habeatur.
§ a. Assignata conventui die, singuli iudices scrip-
tas afferent conclusiones suas in merito causae, et ra-
tiones tarn in facto quam in iure9 quibus ad conclu-
sionem suam venerint: quae conclusiones act is causae
adiungantur. secreto servandae.
§ 3. Prolatis ex ordinef secundum praecedentiam, ita
tamcn ut semper a causae ponente scu relatore initium
fiat, singulorum conclusionibus, habeatur moderata
discussio sub txibunalis praesidis ductu, praesertim ut
constabiliatur quid statuendum sit in parte dispositiva
sententiae.
§ 4. In discussione autem fas unicuique est a pristina
sua conclusions recedere.
§ 5. Quod si iudices in prima discussione ad banc
sententiam devcnire aut nolint aut nequeant, differri
poterit decisio ad novum conventum ; qui tamcn ultra
hebdomadam comperendinari non debet.
Can. 1872
Si unicus sit iudex, ipsius tantum est sententiam
exarare ; in tribunal! vero collegiali servetur praescrip-
tum can. 1584.
1. When a board of judges has to pronounce sentence,
the procedure is as follows :
oogle
Y ,1,., , Original from
UNIVERSITY OF WISCONSIN
312 ECCLESIASTICAL PROCEDURE
a) The presiding officer determines the day and the
hour when the judges shall meet for deliberation. The
place for the meeting is the courtroom, unless circum-
stances make it advisable to choose another locality.
b) On the day appointed each judge shall bring with
him the conclusions he has arrived at in the case together
with a statement of the motives that prompt them.
All this must be done in writing and inserted in the
acts of the trial, but kept secret. The reasons for his
opinion or conclusions each judge must state in facto et
iure. The phrase in facto means that the conclusions
must remain within the writ of complaint, or concern
precisely this case and no other; the reasons de iure may
be applied to the law in general as well as to any specific
right on which the plaintiff based his claim ; this is also
called in causa et actione. Hence the sentence must, as
the canonists say, conform to the libcllus and to the law
in general.5
c) After the conclusions of each judge have been read
by the ponens or referee, and then by the judges, ac-
cording to precedence, a moderate discussion shall take
place under the supervision of the presiding judge, in
order to determine the dispositive part of the sentence
more accurately.
d) Each judge is permitted to change his conclusion
in the course of this discussion, because the discussion
may convince him that he made an error, either in facto
or in iure.
e) If the judges are unwilling or unable to arrive at
a definite sentence, another discussion may be held, but
not later than eight days after the first.
2. If but one judge is sitting in tribunal, he must work
out the sentence for himself; but in a board the presi-
■ Rwfferutuel, II, ay, o. 70 ff.; Suti-Leitner, II, 37. a. 8.
>Ie
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-
CANON 1873 313
dent may entrust one of the judges with the office of
ponens, to draft the sentence in writing (can. 1584).
contents of the sentence
Can. 1873
•
§ I. Sen ten tia debet:
I," Definire controversiam coram tribunal! agitatam ;
hoc est rcum absolvere vel cond emnare quod attinet ad
petitionee vel accusationes adversus cum prolatas, data
singulis dubiis, seu controversiae articulis. congrua
responsione;
2.0 Determinate (saltern quatenus fas sit et materia
patiatur), quid pars damnata dare, facere, prae stare,
aut pati debeat, aut a quo abstinere; itemque quo
modo, loco vel tempore obligatio implenda sit ;
3.0 Con t mere rati ones seu motiva quae dicuntur,
tarn in facto quam in iure, quibus dispositiva senten-
tiae pars innititur ;
4.0 Statuere de litis expensis.
§ 2. In tribunals collegiali motiva ab extensore de-
sumantur ex iis quae singuli iudices in discussione at-
tulerunt, nisi ab ipsa iudicum maiore parte praefini turn
fuerit quaenam sint motiva proferenda.
i -
The sentence must be drafted in such a way :
i.° That it settles the controversy at issue, that is, it
must be either absolutory or condemnatory concerning
the question contained in the writ of complaint (libellus),
and offer suitable answers to each disputed point.
2.0 That, as far as the case permits, the penalty of the
guilty party is determined. Hence the sentence should
clearly and precisely state what the condemned party has
to give, do, perform, or from what to abstain; also the
oogl
Original from
UNIVERSITY OF WISCONSIN
-
■
pi
314 ECCLESIASTICAL PROCEDURE
manner, place, and time for fulfilling the obligation im-
posed. This is called sententia certa. A conditional
sentence, as a rule, is invalid,* because a trial is supposed
to settle the quarrel.
3.0 That it contain the reasons'1 m facto et lure, as
stated above, upon which the dispositive part of the sen-
tence is based. The dispositive part is that which con-
tains the absolutory or condemnatory sentence. Hence
neither the arenga, nor the narratio propria, nor the con-
clusio are here concerned.
4-° That it state the amount of expenses incurred. The
extensor, who is no one else but the ponens or referee, i.e.,
one of the judges, may make a summary (ristretto) of
the motives or reasons given by the judges, unless the
majority has specifically determined which motives are to
be advanced.
extrinsic formalities
Can. 1874.
§ 1. Sententia ferri debet, divino Nomine ab initio
semper invocato.
§2. Dein exprimat oportet ex ordine qui ait iudex
aut tribunal; qui sit actor, reus, procurator, nominibus
et domicilio rite designatis, promoter iustitiae, defen-
sor vinculi, si partem in iudicio habuerint.
§ 3. Referre postea debet breviter f acti speciem cum
partium conclusionibus.
§4. Hisce subsequatur pars dispositiva sententiae,
praemissis rationibus quibus innititur.
§ 5. Claudatur cum indicatione diei et loci in quibus
a Keiffenstud, II, 37, n. 87 ff. state that if these reasons arc not
T The Regulae S. R. Rota*, Aug. given, the sentence is invalid.
4* «»»», I 18a (A. Ap. S„ II, 8j6)
Gi , Original from
008IL UNIVERSITY 0FWI5C0NSIN
CANONS 1874-1875 3X5
exarata est et cum subscriptione iudicis vel omnium
iudicum, si plures fuerint, et notarii.
Can. 1875
Regulae superius positae locum habent potissimum
in proferenda sententia definitiva; sed applicantur
etiam, quantum diversa res patitur, in proferenda in-
terlocutoria.
1. The sentence must contain an invocation of the Di-
vinity.8
2. The following names must be set down in order : the
names of the judge or tribunal, i.e., the board of judges;
of the plaintiff, defendant, proctor, together with their
domiciles, of the fiscal promoter and the defender, pro-
vided they took part in the trial.
2. It must contain a brief statement of the case to-
gether with the arguments or conclusions of the parties.
4. Then follows the dispositive part of the sentence,
preceded by a statement of the motives which prompted
it
5. At the bottom or end of all these statements follow
the day and the place when and where the sentence was
drafted, and the signatures of the judge or judges and the
notary.
All these rules, says can. 1875, apply chiefly to definitive
sentences, but they should be observed also with regard
to interlocutory sentences, if the nature of the incidental
question calls for or permits it.
a Examples are plentiful in the lobtmque Dtum pro* oeulis habtn-
decisions of the S. R. Rota, for in- tes," etc.
ttance: " Christi nomine invocato.
>ogle
£ * -» ^ ,l„ Original from
UNIVERSITY OF WISCONSIN
3i6 ECCLESIASTICAL PROCEDURE
publication of the sentence
Can. 1876
Sententia, hac ratione redacta, quaxnprimum publice-
tur.
Can. 1877
Publicatio sententiae fieri potest tribus modis, vel
citando partes ad audiendam sententiae lectionem sol-
leraniter f actam a iudice pro tribunal! sedente ; vel par-
ibus denuntiando sententiam esse penes cancellariam
tribunals, unaque facultatem ipsis fieri eandexn le-
gendi et eiusdem exemplar petendi; vel tandem, ubi
usus viget, sententiae exemplar transmittendo ad
partes per publicos tabellarios ad norman can. 1719.
The sentence thus drafted should be published as soon
as possible. How soon, is not expressly stated; but the
phrase generally means after an interval of not more
than three or eight days.
The manner in which the sentence may be published is
threefold :
1. By summoning the parties to hear the sentence
solemnly pronounced by the judge sitting9 in court;
2. By notifying the parties that the sentence is ready
at the chancery of the court and leave is granted to read
it and have a copy made ;
3. By sending a copy of the sentence to the parties
through the public carrier, where this is customary.
8 Whether this attitude of sitting mittcd; therefore we would rather
ia required for the validity of the say that it belongs to the decorum
sentence cannot positively be proved or dignity of the judge to observe
from the text, especially since a a sitting posture,
threefold mode of publication la ad-
.'le
Original fro m
UNIVERSITY OF WISCONSIN
TITLE XIV
LEGAL REDRESS AGAINST THE SENTENCE
■
. Can. 1878
§ 1. Si agatur dc crrorc xnateriali qui incident vcl in
transcribenda parte dispositiva sententiae vel in re-
ferendis factis aut partium petitionibus aut in ponen-
dis calculis, errorem corrigere valet ipse iudex.
§ 2. Iudex ad hanc correctionem deveniat edito de-
creto ad instantiam partis, nisi pars altera refragetur.
§ 3. Si altera pars refragetur, quaestio, incidens ad
normam can. 1840, § 3 decreto deflniatur; et decretum
ad calcem sententiae correctae referatur.
After the sentence has been pronounced, execution
should follow. However the party condemned may find
it too hard or unjust and therefore claim a gravamen.
0.
This would justify an appeal. But before the Code
treats of appeals, it considers the possibility of a merely
material error, which may have crept into the copy of
the dispositive part of the sentence. A mistake may
also have been made in the narration of facts, or in the
writ of complaint, or in the reckoning of accounts.
Such an error should be corrected by the judge himself,
who shall issue a decree to that effect upon demand of
one party, provided the other is satisfied. But if the
other party refuses to accept the correction, the question
must be treated as an incidental one, summarily disposed
of according to can. 1840, § 3, and notice be given at the
bottom of the sentence thus corrected.
1/1
3*7
jle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
■
9
CHAPTER I
APPEALS
Can. 1879
Pars quae aliqua sententia sc gravatam putat,
itemque promoter iustitiac et defensor vinculi in causis
in quibus intcrf uerunt, ius habent a sententia appel-
lant, idest pro vocandi ab inf eriore iudice qui senten-
txam tulit, ad supcriorem, salvo praescripto can. 1880.
Appeal is here taken in the strictly judicial sense, re-
quiring a preceding judicial sentence. Hence it is a com-
plaint brought from an inferior judge, who pronounced
a sentence, to a higher judge. The intention or pur-
pose is to seek redress. This, of course, chiefly concerns
the party who believes himself injured or hurt by the
former sentence.
But the promotor iustitiae, too, as well as the defensor
vinculi, may have a just complaint against the former
sentence, not indeed personally, but officially, because they
are under the impression that the public welfare has been
injured. These, too, therefore, may appeal. As a rule,
an appeal is permissible in all cases of grievance, except
those expressly exempted by law.
r-j
c
a
when an appeal is forbidden
Can. 1880
Non est locus appellation! :
z.° A sententia ipsius Summi Pontificis vel Sig-
nature Apostolicae;
3t8
gle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 1880 319
a.° A scntcntia iudicis qui a S ait eta Scdc delegatus
est ad videndam causam cum clausula "appellation*
remota
3.0 A sententia vitio nullitatis infecta;
4.0 A sententia quae in rem iudicatam transiit;
5-° A definitiva quae iureiurando litis decisorio in-
nixaest;
6.° A iudicis decreto vel a sententia interlocutoria,
quae non habeat vim dennitivae, nisi cumuletur cum
appellations a sententia definitiva ;
7.0 A sententia in causa pro qua ius cavet ex-
peditissime rem esse denniendam ;
8.° A sententia contra contumacem, qui a con-
tumacia se non purgaverit ;
o.° A sententia lata contra eum qui in scriptts ex-
presse professus est se appellation! renuntiare.
The Code forbids appeal in nine cases, two of which
affect the person of the judge, one (n. 3) the form of
the sentence, and the rest its matter. An appeal is inad-
missible, therefore,
i.° From a sentence of the Supreme Pontiff or the
Signature* Apostolica. The Roman Pontiff is the high-
est judge of the universal Church, and therefore an ap-
peal from his sentence is impossible. Appeal from the
Signatura Apostolica is impossible because of its office
and power.2 An appeal in the proper sense is inad-
missible also from a sentence of any of the Roman
Congregations, which, however, decide, not judiciary but
disciplinary matters, and hence are not especially men-
tioned.8
2.0 From the sentence of a judge who took cognizance
of the case in virtue of papal delegation with the clause,
P
'■-.
i Cii. can. 459; cad. 1603. 8 Santi-Lcitner, n, *8, n. 6.
% ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
>gle
D
a
ru>(>« ^v f*e*ti tr*f\ with yvi*ii'.'.ir/i putAf ™
320 ECCLESIASTICAL PROCEDURE
"appellations remota." For this clause forbids an ap-
peal.
In these two cases only one remedy is open, namely,
the restitutio in integrum (see can. 1905-1907).
Here may be mentioned the penalty incurred by those
who appeal from a sentence of the Roman Pontiff to a
general council : it is excommunication speciali modo re-
served to the Holy See.4
3.0 From a sentence which is null and void, as may
be seen in can. 1892 f.; because an invalid sentence is
no sentence at all, and an appeal always presupposes a
valid sentence.
4.0 From a sentence which has passed into a res to-
dicata, as seen in can. 1902 f., unless the sentence has
been executed with excessive rigor.'
5.0 From a definitive sentence which has been pro-
nounced in virtue of a decisive oath, because of the sacred-
ness of the oath and on account of a species of contract*
6.° From a decree or interlocutory sentence of the
judge, which is not definitive, unless coupled with an
appeal from a definitive sentence, when an appeal is per-
mitted by reason of the connection. Otherwise not, ne
proccdatur in infinitum.
7.0 From a sentence pronounced in a matter for which
the law provides a speedy settlement, as against non-
resident clerics,7 or in case of appointment to offices.
8.° From a sentence against a contumacious person
who has not purged himself of his contumacy, according
to can. 1842 ff. ("quia contumax non appellat.")*
9.0 From a sentence pronounced against one who has
■
4 Cfr. can. 233a. I, 29; Santi-Leitner, II, :8. u. 12.
oCfr. c 15, X, II, 27; c. 33, X, TC. 4. X, III, 4.
II, 2g. 8 Rtiffeniluel, II. 28, a. 303.
• Cfr. c. 54, X, II, 28; c. 20, X,
Q
■-
►ogle
j ^ Original from
UNIVERSITY OF WISCONSIN
■
9
CANONS 1881-1882 321
given a written declaration that he will not appeal, be-
cause this declaration is equal to a contract.'
With these exceptions, appeals are admitted in every
case, whether important or insignificant. But there are
certain formalities to be observed regarding the judges
from, and those to whom, an appeal is made.
the judge a quo
Can. 1881
Appellatio interponi debet coram iudice a quo sen-
tentia prolata est intra decern dies a notitia publica-
tion's sententiae.
Can. 1882
§ 1. Appellatio fieri potest oretenus coram iudice pro
tribunali sedente, si publico sententia legatur, statim-
que ab actuario scriptis redigenda est.
§ 2. Aliter f acienda est in scriptis, salvo casu de quo
in can. 1707.
An appeal must be brought before the judge who pro-
nounced the sentence, within ten days from the time the
sentence became known. If the judge is still sitting in
court, and the sentence was publicly read, the appeal may
be made there and then; but the clerk must put it down in
writing. Otherwise the party may, within ten days, put
in the appeal in writing and offer it to the judge; or
employ a notary public (of the ecclesiastical court) to
draw it up for him. A notary public is also required
if the appeal is made orally before the judge, because
then the judge shall order the notary to put it down in
8 Cfr. c. 54. X, II, 38; c. as, X, II, a*
'Ic
J , Original fro rn
UNIVERSITY OF WISCONSIN
valid."
■
322 ECCLESIASTICAL PROCEDURE
writing. But the appeal must by all means be presented
to the judge who passed the sentence, otherwise it is in-
the judge ad quem
Can. 1883
Appellatio prosequenda est coram iudice ad quern
dirigitur intra mensem ab eius interpositions nisi
iudez a 9110 longius tempus ad earn prosequendam parti
praestituerit.
Can. 1884
§ 1. Ad prosequendam appellationem requiritur et
sufficit ut pars ministerium invocet iudicis superioris
ad impugnatae scntcntiac emendationem, adiuncto ex-
emplari huius scntcntiac et libelli appellatorii quern
iudici inf eriori exhibuerat.
§ 2. Quod si pars exemplar impugnatae scntcntiac
intra utile tempus a tribunal! a quo obtinere nequeat,
interim termini non decurrunt et impedimentum signi-
ficandum est iudici appellationis, qui iudicem a quo
praecepto obstringat officio auo quaxnprimum satisfaci-
cndi.
Can. 1885
§ 1. Si casus de quo in can. 1733 contigerit intra ter-
minum ad appellandum utilem sed antequam appellatio
interposita sit, sententia debet iis quorum interest de-
nuntiari eisque concessi intelliguntur termini a iure
statuti a die denuntiationis computandi.
§2. Si contigerit postquam fuerit appellatum, appel-
latio interposita eisdem denuntietur, in quorum fa-
10 c. 59. x, n, ag.
oogle
k ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1883-1885 323
vorem a die denuntiationis denuo currere incipit tcm-
pus utile ad appellationcm prosequendam.
The appeal must be prosecuted before the judge to
whom it was directed, within a month from the date when
it was lodged.
But the judge from whom the appeal was made, may
fix a longer term for the prosecution of the case appealed.
The judge ad quern is not determined here, but the rule
is that he should be the one immediately superior. Hence
from the diocesan court appeal should be taken to the
metropolitan court. However, this latter may lawfully
be omitted if an appeal is addressed to Rome. From
the vicar general to the bishop no appeal is possible.11
In order to prosecute the appeal it is required and
suffices that the higher court be implored to change the
obnoxious sentence. A copy of the first sentence and the
writ of appeal presented to the inferior court must be
sent to the higher court. In case the party cannot ob-
tain a copy of the sentence from the judge a quo, the
time " does not run," i.e., the lapse of one month must
not be reckoned as fatal. But the obstacle must be re-
ported to the court of appeal, who shall send peremptory
notice to the lower court, admonishing it of its duty. If
the appellant should die, or change his personal status,
or go out of office (see can. 1733) within the term (of
ten days) granted for putting in the appeal, but before
the appeal was actually made, the sentence must be no-
tified to those concerned, and the term for appeal runs
from the day of the notice. If the case, as stated above,
occurs after the appeal has already been made, the appeal
must be made known to the parties concerned, and the
11 Cfr. cc. 4, 6, C. a, q. 6; c. i, 6°, I, 4: the vicar general and the
bishop form one tribunal.
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
N
■
P
324 ECCLESIASTICAL PROCEDURE
term (of ten days) runs from the days of the notice
given (and, we suppose, received).
lapse of term
Can. 1886
Inutdliter elapsis fatalibus appellatoriis sive coram
iudice a quo, sive coram iudice ad quern, deserta
censctur appellatio.
If the parties permit the term granted for appeal (i.e.,
ten days for putting in the appeal before the judge a quo,
and a month or thirty days for prosecuting the appeal
before the appellate court), to expire, the appeal is sup-
posed to have been dropped. These terms are called
fat alia, because they prove fatal to a cause if not ob-
served.18
EFFECT OF APPEALS
I Can. 1887
§ 1. Appellatio facta ab actore prodest etiam reo, et
vicissim.
§ 2. Si interponatur ab una parte super aliquo sen-
tentiae capite, pars adversa, etsi fatalia appellationis
fucrint transacta, potest super aliis capitibus incidenter
appellare ; idque facere potest etiam sub conditione re-
cedendi, si prior pars ab instantia recesserit.
§ 3. Si sententia plura capita continent, et appellans
quaedam tantummodo capita impugnet, cetera
capita exclusa habeantur; si nullum determinavit
caput, appellatio praesumitur facta contra omnia
capita.
12Cfr. c. a8, C. 2, q. 6; c. a, Clem. II, 13.
I Originalfrom
1 K K )glC UNIVERSITY OF WISCONSIN
CANONS 1888-1889 325
Can. 1888
Si unus ex pluribus correis aut actoribus sententiam
impugnet, impugnatia censetur ab omnibus facta,
quoties res petita sit indi vidua aut obligatio solidalis;
expensas vero iudiciales ille tantum sustinere debet
qui appellavit, si iudex appellationis primam senten-
tiam coniirma verit
."
Can. 1889
§ i. Appellatio in suspensive exsecutionem appel-
latae sententiae suspendit ac propterea in suo robore
permanet principium: "lite pendente nihil innove-
tur ": appellatio autem in devolutive tantum, non su-
spendit exsecutionem sententiae, licet lis adhuc pen-
deat circa mcritum causae.
§ 2. Omnis appellatio est in suspensivo, nisi aliud in
iure expresse caveator, iirmo praescripto can. 1917,
Since the cause binds plaintiff and defendant, the right
of appeal benefits both. Thus, if one party appeals within
the proper time concerning one point of the sentence,
say in a possessory cause, the other may appeal on an-
other point of the same sentence, say in a petitory cause,
even after the lapse of the "fatal " time. And this may be
done conditionally, e.g., if John recedes from his appeal,
Joseph shall also withdraw. The writ of appeal shall
state precisely what is intended. If no special point is
mentioned, the appeal is supposed to be directed against
the entire sentence. Therefore, if only one article of the
sentence is attacked, this fact must be properly stated in
the writ.
It may also be that there are several plaintiffs or de-
fendants who oppose the sentence. In this case the ap-
jle
(~* -» v iL» Original from
UNIVERSITY OF WISCONSIN
326 ECCLESIASTICAL PROCEDURE
peal is supposed to be made by all, provided the litigious
object is indivisible or the obligation binds in solidum.
But the expenses are to be borne by the one who appealed,
provided the second sentence ratifies the first.
The proper effect of an appeal is twofold, viz., suspen-
sive or devolutive. The suspensive effect of an appeal
consists in stopping the execution of the sentence or
suspending its effect. It is, therefore, not a quashing
of the sentence, but merely a putting off. Hence what-
ever is attempted against or during a suspensive appeal,
is revocable and considered as attentatum, wherefore the
axiom must be applied: "Lite pendente nihil innovetur"
The regular or usual effect of each and every appeal
is suspensive, unless the law states the contrary, and
with due regard to can. 1917, § 2.
The devolutive effect of an appeal consists in this, that
the superior judge draws the whole case before his court
and first decides whether or not the appeal is to be ad-
mitted, but the sentence takes effect or is carried out, even
though the merit of the issue is still pending. An exam-
ple may be taken from the division of parishes.
•-.Iii wiiai Vva *»i Iran ( r-t\rr% • 1 ; u ilnncinn r\f t^nrii-nac *•
second instance or court of appeal
Can. 1890
Interposita appellatione tribunal a quo debet ad
iudicem ad quern actorum causae authenticum exem-
plar vel ipsamet originalia acta causae transmitters ad
norm an can. 1644.
i-i For cases in devolutivo Me canons 345; 513, 1 a; 1340, |j; 1395;
1428. (3; 2043, 5 1.
yC jle
/"■ -» -. -J,-. Original fro rn
UNIVERSITY OF WISCONSIN
CANON 1891 337
Can. 1891
§ 1. In gradu appellationis non potest admitti nova
petendi causa, ne per mod urn quidem utilis cumula-
tion is; ideoque litis contestatio in eo tantum versari
potest ut prior sententia vel connrmetur, vel reior-
metur sive ex toto sive ex parte.
§ 2. Sed novis exhibitis documentis et novis proba-
tionibus potent causa instrui. scrvatis regulis traditi*
in can. 1786, 1861.
After an appeal has been properly lodged, the court
from which (a quo) the appeal was made must forward
to the court of appeal (ad quern) either the original acts
of the trial or a copy thereof, as stated in can. 1644.
In the second instance no new complaint or new doubts
concerning the merit of the cause may be admitted, even
if the new complaint were brought by way of valid bulk-
ing of several actions (utilis cumulationis) -1* Where-
fore the litis contestatio, or issue in pleading at the
court of appeal, consists either in the ratification or the
partial or total change of the former sentence.1* On the
other hand, if new documents and new evidence have
been found which for any good reason and without fraud
were not available in the first instance, the case may
be prepared or brought up, provided canons 1786 and
1861 are duly observed. Thus the instructor causae of
the court of appeal may have to insert the new findings
in the acts of the lower court.
p
14 Because the judge would over- lower court; Legs, /. c, n. 500.
step his limits as appellate judge 15 Hence the formula: "an at*-
H he were to decido an action lentia in cojm sit confirnumda m
not yet taken cognizance of by the in firman dot *
* I Irwilp Original from
.OO^IL UNIVERSITY OF WISCONSIN
CHAPTER II
COMPLAINT OF NULLITY OF SENTENCE
■
c
S
Can. 1892
Sen tent ia vitio insanabilis nullitatis laborat, quando:
i.° Lata est a iudice absolute incompetente vel in
tribunali collcgiali a non legitimo iudicum numero con-
tra prae scrip turn can. 1576, § z :
2.0 Lata est inter partes, quarum altera saltern non.
habet personam standi in iudicio ;
3.0 Quis nomine alter ius egit sine legitimo man-
date
N
■
D
a
• D
Can. 1893
Q
Nullitas de qua in can. 1892 proponi potest per
modum exceptionis in perpetuum, per modum vero
actionis coram iudice qui sententiam tulit intra
triginta annos a die publications senteniae.
Can. 1894
Sententia vitio sanabilis nullitatis laborat, quando:
i.° Legitima defuit citatio;
2.0 Motivis seu rationlbus decidendi est destituta,
salvo praescripto can. 1605;
3.0 Subscripticnibus caret hire praescriptis ;
4.0 Non refert indicationem anni, mensis, diei et
loci quo prolata fuit.
328
ogle
Original from
UNIVERSITY OF WISCONSIN
CANONS 1892-1897 329
■
Can. 1895
Querela nullitatis in casibus de quibus in can. 1694,
proponi potest vel una cum appellatione intra decen-
dium, vel seorsim et unice qua querela intra tres
menses a die publicationis sententiae coram iudice qui
sententiam tulit.
Can. 1896
Si pars vereatur ne iudex, qui sententiam, querela
nullitatis impugnatam, tulit, praeoccupatum animum
habeat et proinde cum suspectum merito cxistimct,
exigere potest ut alius index, sed in eadem iudicii sede»
in eius locum subrogetur ad norman can. 1615.
o< m
a
a
Can. 1897
in
§ 1. Querelam nullitatis interponere possunt nedum
partes, quae se gravatas putant, sed etiam promoter
iustitiae aut defensor vinculi, quoties iudicio interfue-
runt
§ 2. Imo ipse iudex potest ex officio sententiam nul-
lam a se latam retractare et emendare intra terminos
ad agendum supra statutos.
This means of redressing a grievance against a sentence
was looked upon as extraordinary.1 However we hardly
believe that it could now be so called, for it has entered
the list of regular remedies of redress.2 The text dis-
tinguishes two kinds of nullity that may upset a sentence
or at least retard its execution : one is a curable and the
other an incurable defect.
The sentence is incurably null in the following cases:
1. When it has been rendered by an incompetent judge,
lLcga, /. c, a. 477.
2 See can. 100;. which corroborates our opinion.
oogle
k ,1^, Original fro m
UNIVERSITY OF WISCONSIN
330 ECCLESIASTICAL PROCEDURE
or, if there was a board of judges, by a number less than
that prescribed by law. And here it must be borne in
mind and emphatically stated that according to can. 1576
three judges are required for ordination and matrimonial
cases, and for some criminal cases of removal or excom-
munication ; whilst five judges must pronounce sentence
in important criminal cases of deposition and degradation."
The consequences involved are too serious to overlook this
ruling; for a sentence in matrimonial cases may be upset
by the lack of the number of judges required by law.
2. When the sentence has been pronounced on parties
one of whom was not entitled to bring suit in an eccle-
siastical court (" Non habct personam standi in iudicio";
see can. 1646-1654).
3. When one has prosecuted a case in another one's
name without being commissioned to do so {slue Tegitimo
mandato). Hence a proctor, counsel, or administrator
(cfr. can. 1520) cannot prosecute validly without a spe-
cial commission.
The mode by which a complaint of nullity may be in-
terposed is by way of a perpetual exception, which
amounts to a peremptory exception when the judge is
opposed and stopped in the execution of the sentence, or
the party is stopped in vindicating a sentence pronounced
in his favor; or by way of action, when the judge who
pronounced the sentence is petitioned to declare his own
sentence null and void.4
A sentence has a curable defect:
1. If the legitimate summons was omitted;
2. If it does not contain the reasons or motives that
prompted the judge; exempt from this rule are sentences
given by the Signatura Apostolica ; B
8 The Directory of 19*0 does not 4 Lcga, t. c, n. $10.
prove the adoption of this necessary 6 Can. 1605.
requisite in all American dioceses.
§le
Original from
UNIVERSITY OF WISCONSIN
CANONS 1892-1897 331
3. If the necessary signatures are wanting;
4. If the date and place are wanting; as to date, the
year, month, and day are required.
Now the question naturally arises, who is the judge
before whom this complaint of nullity must be lodged;
for it appears that the querela nullitatis should be ex-
clusively proposed to the judge who gave sentence (iudici
c quo). First, it must be observed that a complaint
against an incurable sentence can be counteracted only by
way of a restitutio in integrum, according to can. 1905 ;
because can. 1895 refers only to a sentence with a curable
defect. Hence it states that a complaint against a curably
defective sentence may be lodged either together with the
appeal, within ten days from date of the sentence in-
timated, — and in this case the complaint must certainly
be placed before the appellate judge — (ad quern) — or
the complaint may be separately and solely brought be-
fore the judge who pronounced the sentence. For this
complaint a term of three months is granted from the
time the sentence was published.
. If the complaint is made not by way of appeal, but
separately before the judge who gave sentence, and this
judge is suspected by the party of favoritism, said party
may demand that another judge be substituted. How-
ever, since there is no appeal proper and the case remains
in the same stage or instance, it is plain that a judge of
the same instance must be substituted.
The complaint of nullity may be brought by the
aggrieved parties as well as by the fiscal promoter or the
defender, if they took part in the trial. The judge may
ex officio retract or correct his own sentence within the
time stated above, i.e., within ten days by way of appeal,
or within three months in case of a complaint of nullity.
p
Gi ^ Original from
°°3lt UNIVERSITY QFWI5C0NSIN
CHAPTER III
T _
INTERFERENCE OF A THIRD PERSON
■
Can. 1898
Si sententiae dcfinitivac praescriptum iura aliomm
offendat, hi habent remedium extraordinarium quod
oppositio tertii dicitur, vi cuius qui ex sententia
suorum iurium lacsionem verentur, possunt scntentiam
ipsam ante eius exsecutionem impugnare eique se op-
ponere.
Can. 1899
§ 1. Oppositio fieri potest ad recurrentis arbitrium
sive postulando revisionem sententiae ab iudice qui
earn tulit, sive appellando ad iudicem superiorem.
§ 2. In utroque casu oppositor probare debet ius
suum revera esse laesum aut probabiiiter laedendum.
§ 3. Laesio autem oriri debet ex ipsa sententia qua-
tenus aut ipsa sit causa laesionis, aut, si exsecutioni
mandetur, oppositorem gravi praeiudicio sit affectura.
§ 4. Si neutrum probetur, iudex, non obstante tertii
oppositions sententiae exsecutionem decernat.
Can. 1900
Admissa instantia, si oppositor agere velit in gradu
appellations, tenetur legibus pro appellatione statutis ;
si coram ipso iudice qui scntentiam tulit, regulae ser-
vandae sunt pro causis incidentibus datae.
332
►ogle
^1,* Original from
UNIVERSITY OF WISCONSIN
Q
CANON 1901 333
Can. 1901
Causa ab oppositore victa, sententia antea lata mu-
tanda est a iudice, secundum oppositoris instantiarn.
I! a third person believes himself injured or hurt by
a judicial sentence, he may lodge a complaint and op-
pose the execution of the sentence. This is an extraor-
dinary means of redressing a grievance. The opposition
or interference may be brought before the court that gave
the sentence and a revision demanded of the same; or by
way of an appeal to a higher court. But in any case the
opposer must prove that his right has been curtailed or
will probably suffer damage in future. For instance, a
bishop may suffer in the case of a monastery or convent
which is declared dependent on another bishop.1 But it
may also happen, in the case of nullity of a marriage,
because of the attendant legitimacy.
The damage may arise from the sentence itself or from
its execution, as, for instance, in the case just mentioned
of legitimacy. If no proof is given, the judge must issue
a decree of execution of the sentence.
If the complaint is admitted and the opponent proceeds
by way of appeal, the rules for appeal must be observed.
If he lodges the complaint with the judge who rendered
the sentence, the question must be settled as an incidental
one. If the opponent wins the case, the former sentence
must be changed according to the wording of the com-
plaint lodged by the opponent
iC. 17, X, II, *7.
oogle
C^ ^ -. +\r* Original from
UNIVERSITY OF WISCONSIN
■
pi
TITLE XV
RES IUDICATA AND RESTITUTIO IN
INTEGRUM
A res iudicaia, or adjudged matter, has the same effect
as a definitive sentence, because it is supposed that no
appeal was made or no complaint lodged against the sen*
tence, and that no third person interfered or opposed
the same. Besides, there are sentences against which
no appeal is admitted, and which, therefore, should
be carried into effect. However, there is an extraordi-
nary means even against such a sentence, vis., the so-
called restitutio in integrum.
res iudicata
Can. 1902
Ret iudicata habetur:
l.° Duplici sententia conform!;
2.0 Sententia intra utile tempus non appdlata; aut
quae, licet appellata coram iudice a quo, deserta fuit
coram iudice ad quern;
3. ° Sententia definitiva unica, a qua non datur appel-
latio ad normam can. 1880.
Can. 1903
Nunquam transeunt in rem iudicatam causae de statu
personarum ; sed ex duplici sententia conf ormi in his
334
1
Google
, ' Original from
UNIVERSITY OF WISCONSIN
N
CANONS 1902-1904 335
causis consequitur, ut ulterior propositio non debeat
admitti, nisi novis prolatis iiademque gravibus argu-
mcntis vcl documents.
a
1
V
Can. 1904
-
§ 1. Res Judicata praesumptionc iuris ct de iure habc-
tur vera et iusta nee impugnari directe potest.
§ 2. Facit ius inter partes et dat exceptionem ad im-
pediendam novam eiusdezn causae introductionem.
The Code determines very clearly when a res becomes
iudicata, namely:
i.° After two uniform sentences have been pronounced
on the same case, i.e., in the first and second instance,
or in the second and third instance.
2° After a sentence which has not been appealed within
the time granted by law. The same holds good when
a sentence, though appealed to the judge who pronounced
it, was not prosecuted at the court of appeals.
3.0 After one sentence in cases in which no appeal
is admitted, according to can. 1880. Certain cases never
pass into the stage of adjudged matter because they affect
the public welfare, which can. 1903 connects with the
status personarum, or the personal state of the litigants,
which certainly affects the clerical, religious, and mar-
ried state. Therefore sentences passed on the validity of
ordination, of religious profession, and of marriage do
not become res iudicatae, even though the requisites of
can. 1902 are verified.1 Yet even these cases, if a double
uniform sentence was pronounced, cannot again be pro-
posed unless new and weighty evidence or documents are
1 We hardly thrak that other cases, p. 284 f.) would now be considered;
auch aa beneficiary or sentences of concerning criminal cases, see can.
excommunication (Bouix, I, e.g II, 1701—1705.
jle
Original from
UNIVERSITY OF WISCONSIN
■
pi
336 ECCLESIASTICAL PROCEDURE
produced, because judicial sentences are safeguards of
public tranquillity and must be respected.
Can- 1904 enumerates the effect of a res iudicata, which
are:
1. That it creates a true and just praesumptio iuris
et de iure which can be attacked or upset only indirectly.
This, of course, must be understood in the light of what
was said on presumption (can. 1825 sqq.). A res iudi-
cata is taken for a true and just sentence because the
party accepts it, and the trial must be supposed to have
been conducted properly.* Yet if the victorious party
would admit the iniquity of a sentence, or if ocular in-
spection would prove that it was wrong, the sentence could
be impugned, although only indirectly, i.e., by the querela
nullitatis or the restitutio in integrum*
2. The second effect is that the res iudicata establishes
right between the litigant parties, so that they are enti-
tled to bring action for the execution of the sentence ;
that furthermore the parties obtain thereby the right
of opposing the exception of res iudicata to any future
action brought against them in the same matter.
restitutio in integrum
Can. 1905
$ 1. Ad versus sententiam contra quam non suppetat
ordinarium remedium appellationis aut querelae nul-
litatis, datur remedium extraordinarium restitutionis
in integrum intra fines can. 1687, 1688, dummodo de
rvidcnti iniustitia rei iudicatae manifesto conste*.
_-
-
B
-
a
tentia ilia Quae m rem Iransiit iudi- fenstuel II, 27. n. 106.
catam tantae est auetoritatis, ut de s Reiffenstuel, II, 27, a. 128 ff.
2 Canonists used to say: "Sen- verum, et de albo nigrum." Reif-
ntia ilia Quae m rem iransiit lutfr
tarn tantae est auetoritatis, ut de
tnte fociot non ens, et di fatso
jle
£ " ^ v,l„ Original ffoni
UNIVERSITY OF WISCONSIN
■
pi
CANONS 1905-1907 337
§ 2. De iniustitia autem manifesto constare non cen-
sctur , nisi :
i.° Sententia documents innitatur, quae postea fue-
rint falsa deprehen&a ;
2.0 Postea detecta fuerint documents, quae facta
nova ct contrarian: decisionem exigentia peremptorie
pro bent;
3.0 Sententia ex dolo partis proiata fuerit in dam-
num alterius;
4.0 Legis praescriptum evidenter neglectum fuerit.
Can. 1906
Ad restitutionem in integrum concedendam compe-
tens est iudex qui sententiam tulit, nisi ea petatur ex
neglecto a iudice praescripto legis; quo in casu earn
concedit tribunal appellationis.
Can. 1907
§ 1. Petitio restitutionis in integrum sententiae ex-
sccutioncm nondum inccptam suspendit.
§ 2. Si tamen suspicio sit ex probabilibus indiciis pe-
titionem factam esse ad moras exsecutioni nectendas,
iudex decernere potest ut sententia exsecutioni deman-
detur, assignata tamen restitutionem petenti idonea
cautione ut, si restituatur in integrum, indernnis fiat.
This remedy of redressing an evident injustice is called
an extraordinary one and means a re-instatement or re-
turn of the case to the state in which it was prior to
the sentence. Therefore it should be employed not as a
rule, but only in case the injustice is manifest. This
can be proved :
i.° By showing that the sentence was based on docu-
gte
£ * ^ .. ,L» Original from
UNIVERSITY OF WISCONSIN
■
pi
338 ECCLESIASTICAL PROCEDURE
merits which were later found to be false or forged, as
may happen in last wills and in baptismal or marriage
certificates ;
2.0 By producing documents which peremptorily estab-
lish new facts that were formerly unknown and require
an entirely contrary decision;
3.0 By showing that the sentence was procured in
favor of one party by the artifice or deceit of the other;
but since deceit must be strictly proved, this process
would require at least two trustworthy witnesses ;
4.0 By showing that the rules prescribed by law were
set aside.
The competent judge for granting the restitutio is the
one who pronounced the sentence, except in cases where
the regulations prescribed by law have been neglected,
when the court of appeal is competent to grant it.
A re-instatement suspends the execution of the sen-
tence, if it has not already begun. But if the judge sur-
mises that the restitutio was asked for merely to delay
execution, he may issue a decree to the effect that the
execution take place, but in that case bail must be given
to the party demanding the restitution in order to safe-
guard indemnification.
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
TITLE XVI
TRIAL EXPENSES AND GRATUITOUS
DEFENCE
This title is divided into two chapters, of which the
first treats of the expenses of a trial conducted for such
as are able to defray them, while the other sets forth
the rules for gratuitous trials.
339
oogle
/""* ^ ^ ils* Original from
UNIVERSITY OF WISCONSIN
CHAPTER I
• ■
REGULAR EXPENSES
c
Can. 1908
In causis con tentiosis possunt partes adigi ad aliquid
solvendum, titulo expensarum iudicialium, nisi ab hoc
onere eximantur ad norman can. 1914-1916.
■
Can. 1909
§ 1. Concilii provincial, vcl Conventus Episco-
porum est taxarum notulam ac regulam statuere in qua
pracfiniatur quid partes debeant pro expensis iudieiali-
bus; quae sit retributio pro advocatorum et procura-
torum opera a partibus solvenda; quae mercedis men-
sura pro versionibus et tran script ionibus; pro his ex-
aminandis et fide facienda de earum fidelitate ; itemque
pro exscribendis ex archivo documentis.
§ 2. Potest autem iudex pro suo prudenti arbitrio
exigere ut pecunia pro iudicialibus expensis, pro in-
demnitate testium, pro honorariis peritorum debita a
parte quae petit vel, si iudex ex officio agat, ab actore,
antea deponatur penes tribunalis cancellariam aut sal-
tern congrua cautio praestetur pecuniam deinde solu-
tum iri.
Can. 1910
• .-
§ i. Victus vie tori iudiciales expensas regulariter re-
ficere tenetur turn in causa principali turn in incident!.
340
oogle
k ,1,, Original from
UNIVERSITY OF WISCONSIN
CANONS 1908-1913 341
§2. Si actor vel reus temere litigaverit, etiam ad
damnorum ref ectioncm damnari debet.
Can. 1911
Si actor vcl reus partialiter tan turn succubuerit, aut
lis agitata f uerit inter consanguineos vel anines, aut de
quaestione valde ardua actum fuerit, aut quacunque
alia iusta et gravi de causa, poterit iudex pro suo pru-
denti arbitrio ex toto vel ex parte inter litigantes ex-
pensas compensare; idque debet exprimere in ipso
sententiae tenore.
□>
Can. 1912
Si plures sint in causa qui condemnationem ad ex-
pensas mcreantur, iudex cos damnet in solidum, si
agatur de obligatione solidali ; aliter pro rata.
— 1
Can. 1913
E
§ I. A pronuntiatione circa expensas non datur ap-
pellatio; sed pars quae se gravatam putat, opposi-
tion <^m intra decern dies facere potest coram eodem
iudice : qui de hac re cognoscere denuo poterit, et tax-
ationcm emendare ac moderari.
§ 2. Appellatio a sententia circa causam principalern
secuxnfert appellationem a pronuntiatione circa ex-
pensas.
Unless the parties are paupers, or quasi-paupers, they
are to bear the expenses of civil trials. The charges to
be made by diocesan courts should be established at a
provincial council or meeting of the bishops, who should
prescribe regular fees:
a) for the counsel and proctor;
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
342 ECCLESIASTICAL PROCEDURE
b) for translations and copies of documents;
c) for the examination and verification of documents;
d) for the copying of certificates or documents from
the archives.
The sum to cover the judicial expenses must be de-
posited with the court chancery, if the judge deems it
appropriate, or be demanded in the form of bond or
bail, either by the party who asks for a deposition, or
by the plaintiff, if the judge orders a deposition. This
sum should include the expenses of the trial for witness
fees and the honorarium to be paid to the experts.
The loser must, as a rule, pay the expenses of the
trial in the main as well as in incidental issues to the
winner. Rash trials, i.e., such commenced and prosecuted
without a semblance of justice, entail indemnification to
be paid by him who caused the trial, be he plaintiff or
defendant.
The judge may, if he deems it prudent, distribute the
expenses among both parties, in the following cases:
i) If the victory of either party is only partial;
2) If the parties are related to each other by con-
sanguinity or affinity;
3) If the case was a very difficult one, or
4) For any other just and reasonable cause.
However, this sharing of costs must be properly men-
tioned in the sentence.
If those condemned to pay the expenses are several,
and had a common cause, the judge must condemn each
for the whole {in solidum), otherwise, i.e., if they were
only co-partners without a common obligation, each has
to pay his share.
Appeal from the sentence condemning one to pay the
expenses of a trial cannot be made separately or dis-
tinctly from the main appeal ; but the party who believes
Go >gle
j , Original fro m
UNIVERSITY OF WISCONSIN
CANON 1913 343
a>
o>
a
himself aggrieved may oppose the sentence within ten
days before the same judge, who shall reconsider his
sentence and either change or modify the tax imposed.
But an appeal against the sentence in the main issue also
implies an appeal from the sentence condemning the party
in question to pay the expenses.
N
■
oogle
Original from
UNIVERSITY OF WISCONSIN
■
9
CHAPTER II
gratuitous defence
Can. 1914
Pauperes, si in totum impares sint expensis iudiciali-
bus sustinendis, ius habent ad gratuitum patrocinium ;
li ex parte tantum, ad expensarum deminutioncxn.
Can. 1915
§1. Qui exemptionem ab expensis vel carum deminu-
tionem assequi vult, earn a iudice postulare debet, dato
supplici libello, allatisque documentis quibus quae con-
ditio sit postulantis quaeve eius rei familiaris copia
demonstret; praeterea probare debet se non futilem
neque temerariam causam agere.
§ 2. Iudex postulationem nee admittat nee reiiciat,
nisi rcquisitis, si opus sit, notitiis etiam secretis quibus
statum rei familiaris ipsius postulantis compertum
habere possit auditoque promotore iustitiae ; imo con-
cessam potest etiam revocare, si in decursu processus
assertam paupertatexn non adesse compertum habuerit.
Can. 1916
§ t. Ad gratuitum pauperum patrocinium iudex in
singulis causis eligat aliquem ex advocatis in suo foro
approbation, qui ab hoc munere explendo, nisi ex causa
iudici probata, sese subducere nequit, sccus a iudice
congrua poena, etiam suspensionis ab officio, plecti
potest.
344
jle
£ " -» v J„ Original from
UNIVERSrrfOF WISCONSIN
-
CANONS 1914-1916 345
§ 2. Dcficicntibus advocatis, iudex Ordinarium loci
roget ut aliam idoneam personam, si opus sit, designer
ad pauperis patrocinium suscipiendum.
Paupers who are entirely unable to defray the expenses
of a trial are entitled to gratuitous defence ; quasi-paupers,
i.e., such as are able to pay something, may have the
expenses lowered. But those who claim either total or
partial exemption from the payment of judiciary ex-
penses, must submit a petition to the judge, in which
they prove by documents that their financial condition
entitles them to this privilege and, besides, that the reason
for which they are going to law is solid and not rash.
The judge shall neither admit nor reject the petition be-
fore he has ascertained (by secret information if neces-
sary) the financial status of the petitioner, and heard
the advice of the fiscal promoter. He may revoke the
grant if he finds out afterwards that the poverty of the
petitioner was a pretence.
After granting the petition, the judge shall, in each
case, choose an approved attorney or counsel for the
defence. This lawyer is not allowed to shirk the duty
unless for a reason accepted by the judge. If he at-
tempts to evade his duty, he may be punished by the
judge, even to privation from his office of court attorney.
If there are no attorneys, the judge may ask the Ordi-
nary to appoint some other capable person to assume the
defence.
v ,|,, Original from
UNIVERSITY OF WISCONSIN
gle
TITLE XVII
EXECUTION OF THE SENTENCE
■
The text first considers when a sentence is ready for
execution, then the duties of the executor, and, lastly,
the manner or mode of execution.
the time of execution
Can. 1917
§ 1. Sententia quae transiit in rem iudicatam, exsecu-
tioni mandari potest.
§ 2. Iudex tamen potest sententiae, quae nondum
transiit in rem iudicatam, provisoriam exsecutionem
iubere :
i.° Si agatur de provisionibus seu praestationibus ad
necessariam sustentationem ordinatis;
2.0 Si alia gravis urgeat necessitas, it a tamen ut, con-
cessa provisoria exsecutione, per cautiones, fideiius-
siones aut pignora satis consultum sit indemnitati al-
terius partis casu quo exsecutio revocanda sit.
-
-
Can. 1918
Non antea exsecutioni locus esse poterit, quam ex-
secutorium iudicis decretum habeatur, quo scilicet edi-
catur sententiam ipsam exsecutioni mandari debere;
quod decretum pro diversa causarum natura vcl in ipso
sententiae tcnore includatur vel separatim edatur.
346
oogle
Original from
UNIVERSITY OF WISCONSIN
CANONS 1917-1920 347
Can. 1919
Si sententiae exsecutio praeviam rationum reddi-
tionem exigat, causa incidens habctur, ab illo ipso
iudice, servatis de iure servandis, decidenda, qui tulit
scntentiam exsecutioni mandandam.
Since the w iudicata establishes a (subjective) right
and precludes appeal, a sentence may be executed after
the matter has been adjudged.
However, the judge may command provisional execu-
tion even before the sentence has become res iudicata, if
a) The execution concerns payments or warrants neces-
sary for support, as in the case of alimony ;
b) For other urgent reasons. However, every pro-
visional execution pre-supposes a guarantee for the other
party's indemnification in case the execution has to be
repealed. This is done by bail, bonds, or securities. In
order to proceed legitimately to execution, a decree by
the judge ordering execution is required. This decree
may be either inserted in the writ of the sentence itself,
or published separately.
Should the execution of the sentence require the ren-
dering of accounts, as in cases of alienation or benefices,
an incidental question arises, which is to be settled by the
judge who pronounced the sentence of execution.
the executor
Can. 1920
§ 1. Sententiam exsecutioni mandare debet per se
vel per alium Ordinarius loci in quo sententia primi
gradus lata est.
§ 2. Quod si hie renuat vcl negligat, parte cuius in-
Gw >gle
I , Original fro m
UNIVERSITY OF WISCONSIN
■
pi
348 ECCLESIASTICAL PROCEDURE
tcreat instante vel etiam ex officio, exsecutio apectat ad
iudiccm appellationis.
§ 3. Inter rcligiosos exsecutio sentcntiae apectat ad
Superiorem, qui definitivam sententiam tulit aut iudi-
cem delegavit
Can. 192 1
§ 1. Exsecutor, nisi quid eius arbitrio in ipso senten-
tiae tenore fueht permissum, debet sententiam ipsam,
secundum obvium verborum sensum, exsecutioni man-
dare.
§ 2. Licet ei videre de exception ibus circa modum
et vim exsecutionis, non autem de merito causae ; quod
si habeat aliunde compertum sententiam esse manifests
iniustam, abstineat ab exsecutione, et partem ad cum
qui exsccu tionem commisit, remittat.
The executor has to put the sentence into effect. He
may be a mcrus executor or a tnixtus. It he is a " mere
executor," like a bailiff or a constable, he simply reads
the tenor of the decree of execution and carries it out
literally. But if he is a mixius — which must be ascer-
tained from the wording of the decree — he may take
cognizance of eventual exceptions or objections made by
the losing party concerning the mode and efficacy of
the execution, and if convinced that the sentence is unjust,
must refrain from execution and direct the party to the
judge or whoever commanded the execution.
The execution should be carried out, either personally
or through a delegate, by the local Ordinary of the diocese
in which the trial was prosecuted in the first instance.
If he refuses or neglects to put the sentence into effect,
the interested party may demand execution from the
court of appeal, who may execute the sentence ex officio
in case of refusal or neglect of the lower court.
oogle
% ,|Y> " riginal from
UNIVERSITY OF WISCONSIN
a
N
CANONS 1922-1923 349
Concerning religious, the executor is the superior who
pronounced the definitive sentence or delegated the judge.
mode of execution
Can. 1922
§ 1. Quod attinet ad reales actiones, adiudicata ac-
ton re aliqua, haec actori tradenda est statim ac res
iudtcata habetur.
§ 2. Quod vero attinet ad actiones pcrsonales, cum
reus damnatus est ad rem mobilem praestandam, vel
ad solvendam pecuniam, vel ad aliud dandum aut faci-
endum, quadrimestre conceditur pro implenda obliga-
tione.
§3. Iudex potest terminurn praescriptum vel re-
ducere vel protrahere, ita tamen ut neque infra bi-
mestre coarctetur, neque semestre cxccdat.
Can. 1923
§1. In exsecutione peragenda exsecutor caveat ut
quam minimum damnato noceatur, eaque de causa in-
cipiat exsccutionem a distrahendis rebus quae minus
ei necessariae sunt, salvis semper quae eius victui vel
i adust riae deserviunt; et si agatur de clerico, salva
honest a eiusdem sustentatione ad nor man can. 122.
§ 2. Ad exsecutionem privationis beneficii iudex ne
procedat contra clericum qui Sanctam Sedem adierit;
sed si agatur de beneficio, cui adnexa sit animarum
cura, Ordinarius provideat per designationem vicarii
substituti.
yC jle
t~* -» v J„ Original from
UNIVERSITY OF WISCONSIN
350 ECCLESIASTICAL PROCEDURE
Can. 1924
Exsecutor uUtur prius monitis ct praeceptia crga re-
luctantcm ; ad pocnas autcm spirituales et ad ccnsuras
ne deveniat, nisi ex necessitate et gradatim.
An object gained by real action and adjudged to the
plaintiff must be delivered to the latter immediately after
the res has become iudicata*. But in personal actions*
a term of four months is granted to the one who is
condemned to hand over a movable object, or to pay a
certain sum, or to give or do something. However, the
judge may reduce this term to two months or prolong it
to six months, neither less nor more.
D
In executing the sentence, care must be taken that
no unnecessary damage is inflicted. Therefore, the less
necessary things must be taken first, but enough must be
left for a man's support and the exercise of his profession
or trade. In the case of clerics the beneficium cotnpe-
tentiae must be applied.8 No cleric may be deprived of
his benefice by way of execution, if he has had recourse
to the Holy See. If the benefice is one to which the care
of souls is attached, the Ordinary shall appoint a tem-
porary substitute.
The executor shall first admonish and urge, and proceed
to spiritual penalties and censures only by degrees and in
case of necessity.
fj
c
1 See can. 1701.
2 See can. 122, Vol. II, of our Commentary, p. 67 £.
=
% rmc\\& Original from
■OOgK. UNIVERSITY OF WISCONSIN
a
N
■
SECTION II
SPECIAL RULES FOR CERTAIN TRIALS
TITLE XVIII
WAYS OF AVOIDING TRIALS
Christians should avoid quarrels and their evil conse-
quences, trials.1 Therefore the legislator exhorts dis-
putants to compose their differences peacefully. This may
be done by compromise or by arbitration.
i Cfr. I Cor. 6. i 8.
351
i f~* ^rtnlrt Original from
] Ungmal trom
OU^IC UNIVERSITY Or" WI5C0NSI
CHAPTER I
COMPROMISE
A compromise may be defined as the surrender of a
supposed legal claim by peaceful settlement and for a
consideration.1 The effect of this is called composition
or concord. This means should always be recommended
by the judge when he is approached. A compromise
may be offered before the party appears in court or when
the parties have appeared, or at any other time that may
be propitious for such an agreement. But the proposal
should be made, not by the judge himself, to safeguard
his authority, but by an intermediary person, especially
a priest or synodal judge.
As to the rules to be followed, the civil law of each
country must be obeyed, provided it does not clash with
the divine and ecclesiastical law. Besides, the following
rules must be observed:
1. Mo compromise is admissible (a) in criminal cases,
(b) in civil cases which concern the solution of a mar-
riage, (c) in beneficiary matters when the possessory
title is involved, without the intervention of the eccle-
c
siastical authority, (d) in spiritual things, as often as the
payment of temporal goods is concerned, because of the
danger of simony.
2. A compromise is permitted, (a) if merely temporal
ecclesiastical property is concerned, (b) if spiritual things
are involved, but can be dealt with separately, as, for in-
\ See Harrimu, The Lonm of Contracts, 1901, | 11a.
3S*
oogle
/"* ^ -. -.1 » Original from
UNIVERSITY OF WISCONSIN
COMPROMISE 353
stance, burial ground. But in those two cases the formali-
ties prescribed for alienation must be observed, if the
matter requires it, as stated in can. 1530 ff.
The effect of a compromise is called composition or
concord.
The expenses must be shared equally by the parties, un-
less otherwise stated in the compromise.
N
■
-
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
p
CHAPTER n
COMPROMISE BY ARBITRATION
If the parties, in order to avoid a trial, agree to com-
mit the settlement of their dispute to one or more per-
sons, there is a compromise by arbitration. This is two-
fold, according as the compromissarii proceed under
the strict rules of the law, in which case they are called
arbiters (arbitri), or proceed according to the rules of
equity, in which case they are known as arbitrators (arbi-
tratores). But both kinds of compromissary must ob-
serve the rules laid down in can. 1926 and 1927.
No one who has been under a declaratory or condem-
natory sentence of excommunication or infamy may
validly act as an arbiter (though he may be an arbitrator) .
Religious need the permission of their superiors to act as
arbitri.
If neither compromise nor arbitration brings about the
desired settlement, the dispute must be decided according
to the rules laid down in section one of this Book.
354
oogle
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
TITLE XIX
CRIMINAL TRIALS
Can. 1933
§ 1. Delicta quae cadunt sub criminali hidicio sunt
delicta publica.
§2. Excipiuntur delicta plectenda sanctionibus
poenalibus de quibus in can. 2168-2194.
§3. In delictis mixti fori Ordinarii regulariter nc
procedant cum reus laicus est et civilis magistratus, in
reum animadvertens, publico bono satis consulit.
§4. Poenitentia, remedium poenak, excommunica-
tio, suspensio, intcrdictum, dummodo delictum certum
sit, infligi possunt etiam per modum praecepti extra
judicium.
The Church, being endowed with judiciary power over
her members, has the right to take cognizance of, and to
punish, crimes committed in defiance of her laws. How-
ever, in matter of fact, as our canon explicitly acknowl-
edges (§3), criminal trials are now-a-days almost ex-
clusively reserved for clerical offenders.
Can. 120 lays down Ihe rules to be observed when a
cleric is to be summoned by a civil or lay court: if the
accused is of high rank (cardinal, bishop or prelate
nullius), the permission of the Holy See is required;
if he is of inferior rank (abbot,1 priest, cleric, religious)
1 Concerning; an abbot we have sion ; but con. zao only mentions
our doubts whether the local Ordi- abbot nullius as requiring the con-
nary is competent to give permia- sent of the Holy Sec if he is not
355
gle
k ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
356 ECCLESIASTICAL PROCEDURE
a>
the Ordinary in whose diocese the trial is to be held,
must give permission, or at least be informed. But offi-
cial procedure against clerics is to be conducted before
the ecclesiastical court.
It is scarcely necessary to add that the rules set forth
in this title are law everywhere, and that no particular
regulations opposed to these can be safely followed in
criminal prosecution. The instructions of the various
S. Congregations, including that of the S. C. EE. et RR.,
of June II, 1880, are no longer in force for criminal
procedure.' This fact should be carefully noted to avoid
mistakes in conducting a trial and thereby, perhaps, ex-
posing the procedure to the danger of nullity.
1. The crimes subject to criminal procedure must be
public. A crime is denned in can. 2195 as an external
and a morally imputable violation of the law, to which
is attached a canonical sanction or penalty, at least unde-
termined. The crime is public if it is already divulged
or has been committed under circumstances which make
it liable to be divulged (can. 2197, n. 1).
2. Exempted from criminal procedure are the cases for
which other penalties are sanctioned in law. These are :
a) Procedure against non-resident clergymen; can.
I 2168-2175.
b) Procedure against concubinwrii clerici; can. 2176-
2l8l.
c) Procedure against pastors who neglect their pas-
toral duties; can. 2182-2185.
orttinorius firopriut of a religioua XIV'i, " Ad militant**," March 30,
plaintiff. The proper way would be 174a; the Instruction quoted above
to apply to the next highest superior lee Coll. P. F., Vol. II, p. 134, n.
of exempt religious, vie., the abbot I5J4. also Mcsamer, Canonical Pro-
preatdent, and, if the accused is a c*&U¥t, r8o7. Appendix. One ac-
provincial, to the superior general. customed to the old procedure is
2 This applies also to Benedict likely to make mistakes.
>gle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 1933 357
d) The procedure called ex infortnata conscicntia; can.
2186-2194.
These cases then are not to be prosecuted in criminal
form, but in the manner established by the respective
canons.
u
3. Against crimes which may be prosecuted either
in the civil or in the ecclesiastical court (mixti fori)
Ordinaries, should, as a rule, not proceed if the accused
is a layman and the civil authority is already prosecuting
him, thus safeguarding the public welfare.
Mixed crimes are such as principally offend against
religion, but also concern the public welfare. Such are
sacrilege, perjury, blasphemy (even though not heretical),
theft of ecclesiastical property, incestuous concubinage,
clandestine marriage, bigamy.8
Note well the conditions for proceeding: the criminal
must be a layman, and the public order in need of being
restored. But one essential element of criminal proced-
ure as we regard it is the restoration of the public order
(see Book V). The Church, being the divinely appointed
custodian of public morality, is entitled to prosecute such
cases if the civil authority fails to perform its duty.
Hence the ecclesiastical authority cannot be lawfully re-
jected as accuser before the lay criminal court, if the
public welfare is involved and the civil law provides no
punishment for such crimes. Spiritism in all its forms
should receive more attention from our criminal courts.*
4. Penances and penal remedies (can. 2306-2313) ex-
communication, suspension, interdict, may be inflicted
by way of a precept, without a trial, whenever the delin-
quency is fully proved. This is new law, except in so
8 Cfr. Wern*, Jut Decretalium, cial asylums for demented sub-
Vol. V, P. II, n. 805, p. 44. jects, where they can be treated
* The State should provide ipe- individually.
ioi >gle
Original fro ni
UNIVERSITY OF WISCONSIN
35« ECCLESIASTICAL PROCEDURE
far as the suspensio ex informata eonscientia is con-
cerned. Formerly censures, being looked upon as severe
punishments, were held to require an ecclesiastical trial.
How the precept is to be observed, is stated in can. 2310.
N
■
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
CHAPTER I
criminal action and denunciation
Can. 1934
Actio seu accusatio criminalis uni promotori iusti-
tiae, ceteris omnibus exclusis, reservatur.
Can. 1935
§ 1. Quilibet tarn en fide! i urn semper potest delictum
alterius denuntiare ad satisfactionem petendam vel
damnum aibi resarciendum, vel etiam studio iustitiae
ad alicuius scandali vel mali reparationem.
§ 2. Imo obligatio denuntiationis urget quotiescum-
que ad id quis adigitur sive lege vel peculiars legitimo
praecepto, sive ex ipsa naturali lege ob fidei vel reli-
gionis periculum vel aliud imminens publicum malum.
Can. 1936
Denuntiatio scriptis a denuntiante subsignatis vel
oretenus fieri debet loci Ordinario, vel cancellario
Curiae vel vicariis foraneis vel parochis, a quibus
tamen, si viva voce facta fuerit, scriptis est consig-
aanda et statim ad Ordinariiirn deferenda.
Can. 1937
Qui delictum denuntiat debet promotori iustitiae ad-
iumenta suppeditare ad eiusdem delicti probationem.
359
Gi Original fro ni
OOglt UNIVERSITY QFWI5C0NSIN
36o
ECCLESIASTICAL PROCEDURE
Can. 1938
§ 1 . In causa iniuriarum aut diff amationis, ut actio
criminalis instituatur, requiritur praevia dcnuntiatio
aut querela partis laesae.
§ 2. Sed si agatur de iniuria aut diffamatione gravi,
derico vel religiose, pracsertim in dignitate constitute
illata, aut quam clericus vel religiosus alii intulerit,
actio criminalis institui potest etiam ex officio.
■
Every criminal procedure involves three essential points
— the accusation, the trial, and the sentence. Without
any one of these the whole procedure would be null and
void.
The first and most necessary step is the accusation,
for, "where there is no accuser, there is no accused."
But there is a noticeable distinction between judicial
accusation and simple accusation, which is more properly
styled denunciation.1 The judicial accusation may be
most properly called an indictment, which ensures legal
action or procedure, and is (can. 1934) reserved to the
fiscal pro-motor, to the exclusion of all other persons,
even the local Ordinary. Hence the judicial accusation
can be lodged only by an official who is the promoter
iustitiae.
This official character of the accusation is apparent in
the older Roman Law, which permitted only a magistrate
to act as accuser when a criminal case was tried before
the contttia. However, after the standing commissions
l The English terms: indictment,
presentment, warrant, do not ac-
curately convey the Latin terms.
Indictment comes nearest to official
accusation, which is preferred to,
ind presented upon oath by, a
grand jury. A presentment i% the
notice taken by a grand jury of any
offence from their own knowledge
or observation, without any bill of
indictment laid before them. A
warrant is an official precept au-
thorizing arrest, distress or search,
under the seal of a justice or court,
but solicited by private persona.
Blackrtone, /. c, IV, 289, 301 f.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
CANONS 1934-1938 361
(quaestiones perpetuae) had been introduced, about 149
b. a, the so-called delatores sprang up like mushrooms.
Any Roman citizen could come forward and prefer a
charge2 The ecclesiastical law, being, as to formalities,
largely modelled upon the Roman law, admitted as real
and formal accusers all those not expressly prohibited
by law. This is noticeable in Gratian's Decree. How-
ever, heretical tendencies made a partial departure from
the old methods necessary and gave rise to inquisitorial
proceedings, especially in heresy cases. In order that
these inquisitors may not act as judges and accusers, at
least one of them should be a promoter.8
The medieval inquisitors, taken mainly from the
Friars Preachers, acted in the name of the Apostolic See.
Besides these, the Ordinaries or Bishops were regarded
as inquisitores naii, each for his own diocese, and the
provincial councils, which had to be held every year, were
also charged with the duty of watching over the faith.*
This, broadly speaking, was the status up to the publi-
cation of the Instruction of 1880. For, although a sum-
mary proceeding had been introduced by the Gementine
Decretals and the suspensio ex infortnata conscientia by
the Council of Trent, yet the handling of criminal cases
remained stationary and was somewhat neglected. The
S. C. of Bishops and Regulars, by issuing the above
mentioned Instruction, which in fact was nothing else
but a compendium of former decisions, gave a new
impetus to criminal procedure. The Instruction states
the reason why the summary procedure was promoted,
namely, because the Church was hindered on every side
in the exercise of her judiciary action. It named the
2 Ramaay-Lanciani, Roman Anli- 4 Bouix, De Judiciis Bed., II, p.
quitiet, 1900, p. 33a, p. 334, 365 ff.
S Wernx, /. c.t p. 55, n. 817.
oogl
Original fro ni
UNIVERSITY OF WISCONSIN
362 ECCLESIASTICAL PROCEDURE
diocesan court, viz., the bishop, the vicar-general, and the
processus instructor, as the chief factors in criminal pro-
cedure and required the co-operation of the fiscal pro-
moter.
Now this promotor iustitiae has become so important
that he alone is entitled to bring criminal action against
offenders. This process, as stated, corresponds to our
civil indictment.
Different from the indictment is simple denunciation,
or, as we may call it for brevity's sake, the warrant.
Canon 1935 defines the right and obligation of denun-
ciation as follows :
1. Every Catholic has the right to denounce the crime
of another, either (a) to demand satisfaction or indemnity,
or (b) for the sake of justice, i.e., that scandal may be
repaired or evil counteracted. In the first case the motive
is personal interest, and the case should therefore he
classified among torts (such as libel and damage suits).
In the second case the intention of the accuser is the
restoration of justice, which suffers through any crime.
" Quilibet fidclis " must be understood in the light of
the following considerations: (a) It is a mere denun-
ciation; (b) where private interests only are involved,
every believing person, i.e., every Catholic, may be ad-
mitted, though formerly laymen were not permitted to act
as accusers against clergymen ;B (c) when the public wel-
fare is concerned, as in cases of simony and others men-
tioned in § 2, can. 1934, anyone is admitted as accuser,8
but with due regard to can. 1942, §2, which says that
5 C 14, X, II, 20. mitted as accusers, because their
0 Cc. 3, 7, X, V, 3. Practically denunciation is worth nothing; but
it is true what Wernz (/. e., P. II. theoretically our text does not dis-
n. 835) says, that eriminott, ex- criminate against then, except as
comtnunicati, inimici, infantes, ano- stated above.
nymi, plane ignoti are not ad-
§le
k ,1,., Original from
UNIVERSlfY OF WISCONSIN
CANONS 1934-1938 363
denunciation by manifest enemies and by mean and un-
worthy persons should be counted as nothing.
2. The obligation of denouncing another becomes ur-
gent when (a) one is obliged to do so by law, or (b)
by a special precept, or (c) in virtue of the natural law,
which dictates that every danger to faith and religion
and every menace of public evil should be averted.
Ad a) The common law makes denunciation impera-
tive:
i.° Against confessarii sollicitantes ad turpia (caa
904; 2368, n. 2);
2.0 When one knows of impediments to the reception
of holy orders (can. 999) ;
3.0 Or of the existence of matrimonial impediments
(can. 1027) ;
4.0 Or of the circulation of dangerous books (can.
1397);
5.0 Or of clergymen and religious being members of
Masonic sects (can. 2336).
Ad b) By special precept Ordinaries and religious su-
periors may command their subjects to denounce certain
crimes or persons suspected of wrongdoing; this, how-
ever, greatly depends on the constitution of each respec-
tive congregation or order.
Ad c) In virtue of the natural law theologians and
canonists, though with some shades of variance, hold
denunciation (judicial, not evangelical) to be obligatory
on
a) One who knows of a crime that is very detrimental
to the community and has no other means to prevent
the evil arising therefrom than denunciation. Such a one
is obliged to denounce the crime, even though the act
will cause him inconvenience.
b) One who knows of a crime that is hurtful or de-
1 Originalfrom
jrVjOOglL UNIVERSITY OF WISCONSIN
364 ECCLESrASTICAL PROCEDURE
trimental to a third person. In this case the duty of
denunciation binds only if it entails no inconvenience to
the denouncer.
c) One who knows of a crime that is hurtful only to
the perpetrator himself, is under no obligation to denounce
-
it7 Sacramental knowledge and professional secrecy al-
ways excuse from the duty of denunciation.
Can. 1936 describes the mode of denunciation. The
accusation should be made in writing and signed by the
accuser, or orally to the local Ordinary, the diocesan
chancellor, or the rural dean or pastor (assistants or
curates are not mentioned, and therefore can not law-
fully accept a denunciation).
If a denunciation is lodged orally, it must be put in
writing by the persons to whom it is made and immediately
forwarded to the Ordinary. The latter clause has spe-
cial significance, for it means that the ecclesiastics men-
tioned in the text as competent to receive denunciations,
are not allowed to make investigation, summon witnesses
or conduct a quasi-trial. Religious superiors must keep
their hands off all matters pertaining to the Holy Office.
If a subject is guilty of such a violation, the religious
superior must denounce him, either directly to the Holy
Office, or to the local Ordinary.8
Since the denouncer forms, as it were, one person with
the fiscal promoter, the latter is entitled to demand all
the evidence and the assistance of the accuser, in order
to prove the crime (can. 1937).'
A damage or libel suit, which is of a personal or private
character, necessarily requires a previous warrant or com-
plaint by the party who believes himself injured ; other-
TCfr. Bouix, De 7wd. EccL, II, p. F., n. 21 12); oar Commentary, Vol.
51; Sabetti-Barrett, Th*el. Meal.. lit, p- no; can. 501. 82.
ed. 27, 1910, p. 180, n. 181. 9 Refute* S. R. R., Aug. 4. 1910,
IS. 0\, May 15, 1901 {Coll P. I 41 n. 1 (A. Ap. S., II, 799).
ogle
/■"* ^ v ,|rt Original fro rn
UNIVERSITY OF WISCONSIN
CANONS 1934-1938 3^5
wise no criminal action can follow. This is the practice
in every civilized court, based on the assumption that
the damage or defamation concerns private interests only.
However, since the clerical or religious state is a privileged
one in the Catholic Church, and injury or defamation
brought upon any one of its members affects the whole
state, especially if the injured member holds some rank
or dignity, like prelates, it is but logical that only official
criminal action may be brought against the delinquent.
This rule applies also to cases where a clergyman or
religious has defamed or injured another of his class
(can. 1938). Here the percussio clericorum might enter,
provided the offence was public and perpetrated in a
scandalous manner.
G I Original from
OOglL UNIVERSITY 0FWI5C0NSIN
■
pi
CHAPTER II
INQUEST
To justify the term inquest for inquisitio, we refer to
can. 1954, for inquisitio forms part and parcel of the
inquisitorial acts to be delivered to the fiscal promoter.
Hence the term is here to be taken for judicial inquiry,
which is a preliminary and an absolutely essential part
of criminal procedure.1 There is an inquiry mentioned
in can. 1939, but this is of a general character, and there-
fore may be called extra-judicial. Here the Code intends
judicial inquiry, denning when and by whom it is to be
made, how it should be conducted, and what follows when
it is completed.
inquest — when and by whom to be made
Can. 1939
§ 1. Si delictum nee notorium sit nee omnino ccrtum,
sed innotuerit sive ex rumore et publica farna, sive ex
denuntiatione. sive ex querela damni, sive ex in-
quisitione generali ab Ordinario facta, sive alia quavis
ratione, antequam quis citetur ad respondendum de
delicto, inquisitio specialis est praemittenda ut constet
an et quo fundamento innitatur imputatio.
§ 2. Huic regulae locus est sive agatur de irroganda
poena vindicativa vel censura, sive de ferenda sententia
X This process was formerly called June u, 1880, n. 10; S. 0-, Aug.
inquxsttio pro informando indict or 6, 1897, n. 3 (Coll. P. F., no. 1534,
simply processus; S. C. EE. et BR.. 1977); Messmer, I, c, p. 53.
366
>Ic
/" " -» v J„ Original fro m
UNIVERSITY OF WISCONSIN
-
CANONS 1939-1942' 367
declaratoria poenae vel censurae in quam quis in-
cident
Can. 1940
Haec inquisitio, quamvis ab ipso loci Ordinario
peragi possit, ex general! tamen regula committenda
est alicui ex iudicibus synodalibus, nisi eidem
Ordinario ex pcculiari ratione alii committenda
videatur.
Can. 1941
§ 1. Inquisitor delegetur non ad universitatem
causa rum, sed toties quoties et ad unam causam.
§ 2. Inquisitor tenetur iisdem obligationibus quibus
iudices ordinarii, ac praesertini pracstarc debet
iusiurandum de secreto servando deque officio
fideliter implcndo et abstinere ab accipiendis muneri-
bus ad normam can. 1621-1624.
§ 3. Inquisitor nequit in eadem causa iudicem agcrc.
Can. 1942
§ 1. Prudenti Ordinarii iudicio committitur statuere
quandonam ea, quae praesto sunt argument*, sufHciant
ad inquisitionem instituendam.
§ 2. Nihili faciendae sunt denuntiationes quae ab
inimico manifesto, aut ab hominc vili et indigno
proveniunt, vel anonymae iis adiunctis iisque aliis
dementis carentes, quae accusationem forte pro
babilem reddant.
1. A special inquest is required in cases (a) where the
crime is neither notorious nor entirely certain, vis., un-
certain as to the fact or its imputability to the person
denounced, but known only (b) through rumor and
►ogle
I , Original from
UNIVERSITY OF WISCONSIN
368 ECCLESIASTICAL PROCEDURE
hearsay,1 or (c) by semi-official information, vis., de-
nunciation, complaint of damage, general inquiry made
by the Ordinary, or in any other strictly extra-judicial
way.
2. The time for the inquest to be held is before one
is summoned or judicially cited.
3. The purpose of the inquest is to ascertain whether
and on what ground the crime may be imputed.*
4. With regard to the penalty § 2 of can. 1939 states
that an inquest must be held whenever a vindictive pen-
alty or censure is to be inflicted — ab homine — or only
a declaration of sentence is required, viz., a declaration
that the penalty or censure has been incurred. Com-
paring this text with can. 1933, § 4 it might seem that
there is a contradiction, but this is not the case. For
canon 1933 supposes the certainty of the crime. Be-
sides, this inquest, as stated, has already given a legal
turn to the procedure, and therefore legal means are
required for inflicting the penalty.
The next question is, Who may act as inquisitor ? An-
swer: The local Ordinary, i.e., the bishop or his vicar-
general, may personally conduct the inquest. The law is
permissive rather than preceptive in this case, but it
adds that as a rule the business of holding the inquest
should be committed to one of the synodal judges. But
the Ordinary may, for special reasons, choose another,
who, according to the instructions of the Roman Con-
gregations, should be a learned, righteous, and capable
priest, or at least a cleric.4
The inquisitor is a delegate, and hence does not re-
main in office permanently, but is chosen for each single
P
2Cfr. can. 2197; S. C. EE. et 8 On imputability, see can. 2199 ff.
S. O., Aug. 6, 1897, n. 6; S. C. 4 S. O., Aug. 6, 1897, n. 6; S. C
EE. et RR., June 11, 1880, n. u. EE. et RR., June 11, t88o, n. ia.
gle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 1942 369
case (ad hoc) and needs special delegation for each.
The conclusion : ** N. has been delegated for this case,
hence he may act also in the next case," would, therefore,
be entirely wrong and would nullify the whole procedure.6
The inquisitor is under the same obligations as the
judge in ordinary, and must therefore give oath that he
will keep the secret, conscientiously discharge his duties,
and accept no donations or bribes.
The inquisitor cannot validly act as judge in the same
case. The consequence is that a synodal judge chosen
as inquisitor cannot pro hoc vice also act as judge.
It is hardly necessary to add that the delegation must
be given expressly, since the office of inquisitor is not
attached to any particular judiciary office, either that
of synodal judge, or of counsel, or of auditor and that
the delegate must adhere strictly to his commission or
mandate, the limits of which he may not exceed, if any
are drawn in the writ.
The inquisitor should not proceed with the inquest
until the Ordinary has prudently judged or decided that
the evidence so far obtained is sufficient to institute a
formal inquest. Hence it lies with the Ordinary to give
orders for the inquest. What if the Ordinary doubts
the sufficiency of the materials thus far collected? He
may order other secret information to be gathered and
call in witnesses who know the incriminated person and
the accusers, and make them respond under oath to the
questions put to them.* These depositions, of course,
must be diligently kept, for they may be of service in
the trial.
Can. 1942, § 2 proceeds to determine negatively the
sufficiency of evidence, thus: Denunciations should be
counted for nothing if: (a) they are made by manifest
B S. O., /. e. • S. O., Aug. 6, 1897, nn. 3, $.
I Original from
■OOgie UNIVERSITY OF WISCONSIN
370
ECCLESIASTICAL PROCEDURE
-
■
enemies or by mean and unworthy persons; or if they
are (b) anonymous and lack the necessary details to ren-
der the accusation at least probable.
''Homines vilcs et indigni" are persons of ill fame,7
and, a fortiori, all who are infamous in fact or by law.
But vilis may have another meaning, ins., a low character.
This would be the case if the accusation were prompted
by a bribe or human respect.8 Enemies are those who
wish one ill and are ready to injure one, materially or
spiritually. The word manifest implies that a consider-
able part of a community must know of this enmity of
the accuser toward the accused* The word anonymous
is here used in a somewhat restricted sense, for anony-
mous properly means nameless, and nameless letters
should, as a rule, not be accepted. Still the text does
not reject them absolutely. It may be that a person does
not wish to be drawn into a trial, and yet has strong
evidence against another. The details demanded are cir-
cumstances of time (day, month, year, hour), of place
and person (where, when, by and with whom the crime
was committed), etc. No vague and general statements
or flippant assertions made in anonymous letters can be
accepted.
No other persons are excluded from the right of mak-
ing denunciation. AH that is required is that they be
Catholics. Hence neither excommunication, nor the in-
terdict, nor suspension debar one,10 provided he possesses
the qualities negatively stated in can. 1942, § 2.
t Ibid., n. 1.
8 Ibid.,
9 C. xo, X, V, x; Engel, h. t., n. 9.
10 Consequently the old view of
canonists can no longer be held ad
to tbe class mentioned in the text.
oogle
Original from
UNIVERSITY OF WISCONSIN
CANONS 1943-1945 37i
mode of conducting the inquest
Can. 1943
Inquisitio secreta semper esse debet, et cautissime
duccnda, ne rumor delicti diffundatur, neve bonum
cuiusquam nomcn in discrimen vocetur.
Can. 1944
§ 1. Ad finem suum assequendum potest inquisitor
aliquos, quos de re edoctos censeat, ad ae accire et
interrogare sub iureiurando veritatis dicendae et
secreti scrvandi.
§ a. In eorum examine servet inquisitor, quantum
fieri potest et natura inquisitionis patitur, regulas
statutas in can. 1770-1781.
Can. 1945
Inquisitor, antequam inquisitionem claudat, potest
promotoris iustitiae consilium exquirere quoties in
aliquam difficultatera incident, et cum eo acta com-
municare.
After the inquisitor has been appointed and informed
that the evidence at hand is sufficient, the inquest may
begin. But it must always be conducted so secretly and
cautiously that no rumor of the crime is allowed to get
abroad, and the good name of no one, delinquent, ac-
complice, or any other person involved, is jeopardized
(can. 1944). This, of course, implies strict secrecy, not
only on the part of the inquisitor himself, as stated under
can. 1941, § 2, but also on the part of all those whose
assistance he may require for conducting the inquest.
The inquisitor may call in persons who are acquainted
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
■
pi
372 ECCLESIASTICAL PROCEDURE
with the accused, or with the accusers, or with the case
in general. The number of the persons that may be
summoned is not determined. Those who appear may
and must be put under oath to speak the truth and,
as stated, to keep the whole thing secret. The />ro-
cedure for examining these persons is much the same
as that prescribed for the examination of witnesses (can.
1770-1781).
Our text says, " quantum fieri potest et natura inquisi-
tionis patitur." Hence it would hardly be advisable to
confront the witnesses.
The place of the judge is taken by the inquisitor.
No solemn or public summons is required.
If the inquisitor deems it prudent to repair to the domi-
cile of the witness, the law does not forbid him.
In cases of sollicitatio, women may be heard in the
sacristy or some other unsuspected place.
If the inquisitor should meet with difficulties, says
can. 1945, he may counsel with the fiscal promoter and
communicate to him what has been done. But all this
must be done before the acts of inquisition are formally
closed. The closing of the inquisitorial acts is required
in order to mark a stage in the procedure. It is, how-
ever, left to the inquisitor to decide when the acts of
judicial inquiry are completed, or when the conclusio in
causa (can. i860) is brought about; although no special
decree to that effect need be issued.
what is to be done after the inquest is
completed
Can. 1946
§ z. Expleta inquisitione, inquisitor, addito suffragio
8U0, omnia referat ad Ordinarium.
>gle
i*~* ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
CANON 1946 373
§ a. Ordinarius vel de eius special* mandate?
officialis suo decreto iubeat ut:
i.° Si appareat denuntiationem soli do fundamento
esse destitutam, id declaretur in actis et acta ipsa in
secrete Curiae archivo reponantur;
a.0 Si indicia cri minis habeantur, sed nondum
sufficientia ad accusatoriam actionem instituendam,
acta in eodem archivo serventur et invigtletur interim
moribus imputati, qui pro prudenti Ordinarii iudicio
erit opportune super re audiendus, et, si casus ferat,
tnonendus ad normam can. 3307 ;
3.0 Si denique certa vel saltern probabilia et
sufficientia ad accusationem instituendam argumenta
praesto sint, citctur reus ad comparendum et proceda-
tur ad ulteriora ad normam canonum qui sequuntur.
After the acts of inquisition are closed, or the finding
is complete in the judgment of the inquisitor, because
the evidence is exhausted, he shall formulate his opinion,
which is generally styled votum, but is here called
suffragium. This votum should, we suppose, be put into
writing, although the text does not expressly say so.
Together with this statement the inquisitor shall submit
his findings to the Ordinary, who has to read the acts
carefully in order to come to a conclusion in the three
possible hypotheses with which he may now be con-
fronted.
The Ordinary (either the bishop or his vicar-general)
may entrust the ofRcialis (see can. 1573) with the in-
spection of the acts, but it requires a special mandate
for each and every case. The Ordinary, then, or the
ofhcialis, shall issue a decree adapted to the conclusion
resulting from the inspection of the acts :
i.° If the denunciation appears groundless, the decree
{ \c\C\a\ Original from
^..OOglL UNIVERSITY OF WISCONSIN
Q
■
374 ECCLESIASTICAL PROCEDURE
must so declare and be incorporated with the acts, which
are then to be placed in the secret diocesan archives.
2.0 If the evidence is insufficient to justify criminal
prosecution, the acts must also be deposited in the secret
archives of the diocese and the denounced person watched
as to his conduct, asked concerning his behavior, and,
if necessary, be served an admonition, according to can,
2307.
3.0 If the evidence is conclusive, or at least probable
and sufficient for criminal prosecution, the delinquent
must be summoned to appear in court and proceeded
against according to the rules that follow. The sufficiency
of the evidence must be judged according to can. 1789-
1791 and can. 1812-1818; self-confession according to
can. I75<>-I753-
ogle
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
CHAPTER III
rebuke of the delinquent
Can. 1947
Si reus interrogatus delictum confiteatur, Ordi-
narius, loco criminalis iudicii, utatur correptione
iudiciali si eidem locus sit.
-
Can. 1948
Correptio iudicialis locum habere nequit:
i.° In dclictis quae poenam secumferunt excom-
municationis specialissimo vel speciali modo Sedi
Apostolicae reservatac, aut privationis beneficii, in-
famiae, depositions aut degradationis ;
a.° Quando agitur de ferenda sententia declaratoria
pocnac vindicativae vel censurae in quam quis in-
cident ;
3.0 Quando Ordinarius exis timet earn non sufficere
reparationi scandal! et restutitioni iustitiae.
Can. 1949
§ z. Corrcptioni locus esse potest semel et iterum,
non autem textio contra eundem reum.
§ 2. Quare si post alteram corrcptionem reus idem
delictum commiserit, criminale iudicium instrui aut
inceptum continuari debet ad normam can. 1954 seqq.
1
Can. 1950
Intra fines can. 1947, 1948 potest correptio ab
Ordinario adhiberi non solum antequam gradus fiat ad
375
G I Originalfiom
008IL UNIVERSITY QFWI5C0NSIN
■
376 ECCLESIASTICAL PROCEDURE
formale iudicium, sed etiam eo inccpto ante conclu-
aioncm in causa ; ac tunc quidem iudicium suspenditur,
nisi tamen prosequendum idcirco sit quia correptio in
irritum cesscrit.
Can. 1951
§ x. Correptio adhiberi etiam potest, cum interposita
fuit querela damni ex delicto.
§ 2. Quo in catu Ordinarius potest de bono et aequo,
partibus conscnticntibus, videre et dirimere quae-
stionem de damno.
§3. Sed si censuerit quaestioncm de damno diffi-
culter de bono et aequo posse defmiri, licet ipsi, re-
missa ordini iudiciario solutionc huius quaestionis,
per correptionem consulere reparation! scandali et
emendationi delinquentis.
Can. 1952
§ x. Correptio iudicialis, practer monita salutaria,
debet plerumque coniuncta habere quaedam op-
portuna remedia, aut poenitentiarum vel piorum
operum praescriptionem, quae valeant ad publicam
reparationem laesae iustitiae aut scandali.
§ 2. Salutaria remedia, poenitentiae, pia opera reo
praescribenda, mitiora et leviora esse debent iis, quae
in criminali iudicio per sententiam condemnatoriam
ipsi infiigi posscnt et dcbercnt.
Can. 1953
Correptio censetur inutiliter adhibita, si reus
remedia, poenitentias et pia opera sibi praescripta non
acceptat aut acceptata non exsequatur.
oogle
^ ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 1947-1953 377
Since the summons can "be issued upon certain, or at
least probable and sufficient evidence, it is plain that by
confession here is meant a judicial confession, i.e., one
made in court. The Ordinary, therefore, should ask
the person summoned : " You are accused of such a
crime; do you plead guilty?" He may insinuate, in
general terms, that proofs are available, in order to
solicit a true answer. The question then naturally
arises : Is the defendant obliged to confess his guilt,
if he is guilty and is duly questioned by the Ordinary
or his official? A probable opinion obliges the defend-
ant to confess his guilt.11 However, some authors deny
this obligation if the punishment to be expected is very
severe and there is hope of escaping it.12 It is undeniable
that the confession would simplify the procedure and also
lessen the punishment.
We may add that the question must be put lawfully
and that the answer must be given " freely and con-
siderately," according to can. 175 1. There is also in
lay criminal practice a requisite stated which to us seems
very reasonable: confession should not be admitted if
made in consequence of any inducement of a temporal
character, connected with the accusation, held out to the
accused by a person who had some authority over the ac-
cusation.18 For the voluntary character needed for con-
fession would certainly be diminished under these circum-
stances.
We said that confession would lessen the measure of
punishment. This is clearly stated in can. 1947, which
11S. Thom., II-II, q. 69. art. i; Reiffenatuel, II, 18, n. 1630.; the
W«im«, L c, p. 101, answera "in eonaeqoenee ia that the confessor
the affirmative without exception/' could not refuse absolution in cam,
upon the authority of Koningv, fix., though the penitent refused to
Tkeok Moral. , n. 107a. confess the guilt judicially.
11 Thus Leaaiua, De Lugo, etc. is Kenny-Webb, Outlines of Crim-
— weighty authorities — quoted by inol Law, 1907, p. 375.
oogle
Original from
UNIVERSITY GFWI5C0NSIN
378 ECCLESIASTICAL PROCEDURE
says that, after the confession or admission is made, the
Ordinary may administer judicial correction or rebuke
which is not identical with judicial penalty.
But there are exceptions to the employment of this
expedient, and these are stated in can. 1948, which ex-
cludes judicial correction.
1. In all crimes, even though confessed, which are
punishable by excommunication most especially or espe-
cially reserved to the Holy See, or which are punishable
in law by privation of benefice, infamy, deposition or
degradation (see Book V) ;
2. In all crimes which require only a declaratory sen-
tence for incurring a vindictive penalty or censure, be-
cause de facto already incurred;
3. Whenever the Ordinary deems a judicial correction
insufficient to repair the scandal given and to restore
justice. This is left to the judgment of the Ordinary.
Aside from these cases the judicial correction may
be administered tzvice, but not oftener. If the second
correction has proved fruitless or ineffective to restrain
the delinquent from committing the same crime again,
criminal procedure must be applied or continued accord-
ing to can. 1954 ff. If the text uses the term " inception
continuari" it is because correction may be employed
not only before the trial has begun, but at any time
during the trial, until the conclusio in causat i.e., before
the whole material is gathered and the acts are closed.
When correction is applied, the trial is suspended, pro-
vided the correction was effective, i.e., the corrected per-
son behaves himself (can. 1950).
Correction may also be employed in criminal damage
suits, in which the Ordinary may, if the parties consent,
settle the question of damages according to the rules of
equity. If, however, the difficulty of an equitable settle^
tdbyC .\Ie
j , Original from
UNIVERSITY OF WISCONSIN
CANONS 1947-1953 379
ment proves too great, the Ordinary may refer the mat-
ter to the civil court and in the mean while, by judicial
correction, repair the scandal and endeavor to correct
the delinquent (can. 1951).
Can. 1952 tells us in what judicial correction consists,
vis., in wholesome admonitions, combined with appro-
priate remedies, such as penances and good works, ap-
plied to the delinquent in order that he may publicly repair
the disturbed order of justice and the scandal given. Of
these penances mention is made in can. 2313, where spe-
cial prayers, pilgrimages, fasts, alms, and retreats are
recommended.
However, these remedies do not bear the character of
a judicial punishment because the criminal trial has not
yet begun, and hence they should be milder than those
meted out after a condemnatory sentence.
From this it is apparent that the monita salutaria
spoken of in our text must not be taken in the sense
of a canonical or judicial admonition, equal to a triple
or one peremptory admonition.1* They arc simply whole-
some admonitions, but should not be made light of, be-
cause can. 1953 shows that, if spurned, they will pave
the way for a criminal trial. Hence this canon states
that if the delinquent refuses to accept or to use these
remedies (penances and pious works imposed upon him)
the correction must be looked upon as ineffective and
the trial is to proceed.
1* Sec Mc Miner, i. c, p. 145, note 3.
gle
Original fro ni
UNIVERSITY OF WISCONSIN
CHAPTER IV
criminal procedure and hearing op the
delinquent
Can. 1954
Si corrcptio iudicialis vel insufficient sit ad repara-
tionem scandali et restitutionem iustitiae, vel acihiberi
nequeat quia reus delictum denegat, vel inutiliter
adhibita fuerit, Episcopus, aut ofBcialis, de eius
speciali mandate praecipiat ut acta inquisitionis
tradantur promotori iustitiae.
*
Can. 1955
Promoter statim confkiat accusationis libellum
eumque exhibeat iudici secundum normas in Sectione
Prima statutas.
Can. 1956
In delictis gravioribus, si Ordinarius censeat cum
fidclium offensione imputatum ministrare sacris aut
officio aliquo spirituali ecclesiastico vel pio fungi aut
ad sacram Synaxim publice accedere, potest, audito
promotore iustitiae, eum a sacro ministerio, ab illorum
officiorum exercitio. vel etiam a publica sacrae Synaxis
participatione prohibere ad normam can. 2222, § 2.
Can. 1957
Pariter si iudex censeat accusatum posse testibus
timorem incutere aut eos subornare, aut alio modo
380
jle
^ ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
n
CANONS 1954-1959 381
iustitiae cursum impedire, potest, audito promotore
iustitiae, decreto suo mandare, ut ille ad tempus
deserat oppidum vel paroeciam quandam, vcl etiam ut
scccdat in praennitum locum ibiquc sub peculari
vigilantia maneat.
Can. 1958
Decreta de quibus in can. 1956, 1957 ferri nequeunt,
nisi reo citato et comparente vel conturnace, sive post
primam eius auditionem seu constituting sive postea
in decursu processus ; et contra eadem non datur iuris
rexnedium.
Can. 1959
In reliquis serventur regulae in Sectione Prima
huius Libri traditae et in inflictione poenarum sane-
tiones in Libro Quinto statutae.
The Bishop or his oMcialis, provided the latter has ob-
tained a special mandate to this effect, shall command
that the inquisitorial acts be handed to the fiscal promoter
in the following cases:
1. If judicial correction was considered insufficient to
repair the scandal or to restore justice (can. 1948) ;
2. If the defendant denies the crimes imputed to him,
in which case the judicial correction may not be em-
ployed ;
3. If judicial correction was ineffective, according to
can. 1953.
When any one of these three cases is verified, the fiscal
promoter must immediately draw up a bill of complaint
or accusation and present it to the judge according to
the rules laid down in the first section of this Book (IV).
It will not have escaped the attentive reader that, in
chapter III, on correction, there is not one word that
Gi Original from
UOglt UNIVERSITY OF WISCONSIN
-'
■
pi
382 ECCLESIASTICAL PROCEDURE
would insinuate any special formalities, such as writing
or decrees, of which we hear so often in civil procedure,
or even of keeping a record of the judicial correction
and its effect Neither do we read of any formal canon-
ical injunction after the admonitions have proved fruit-
less.1 Are all these formalities to be omitted? It must
be remembered that a trial is based on an inquisition,
either by denunciation or formal complaint or by a gen-
eral and special inquiry. The records of these proceed-
ings must certainly be kept on file for further procedure.
In addition to this we believe that the judicial correction
must be so administered that it can be proved at the trial.
For the defence is undoubtedly entitled to ask whether
and how the judicial correction was made use of. Be-
sides, the fiscal promoter, who receives the inquisitorial
acts and an abstract thereof, needs an official statement
that the judicial correction was duly served.* Hence we
conclude that the Ordinary or his officialis must put the
fact that judicial correction was made, on record, or give
a written statement why, in virtue of can. 1948, it has
been omitted. If the correction has proved fruitless, ac-
cording to can. 1953, there is some similarity between the
former injunction and our admonitions. As the viola-
tion of injunctions was proved by simply producing the
writ and the record of its having been served, so may the
violation or non-acceptance of correction be proved. But
this requires either a written document or two witnesses,
ecclesiastics or laymen, because at least moral certainty is
required.4
The text says that the writ of complaint or accusation
must be exhibited according to the rules for procedure
1 Inilruetio S. C. BE. tt RK., I Instructs rft., n. JJ f.
June 11, 1880, no. 6-8; Maimer, i Ibid., no. !$. 16, 8.
i. c, p. 144 f.
mi by Google
j , Original from
UNIVERSITY OF WISCONSIN
CANONS 1954-1959 3%
-
in general. These rules are contained in canons 1706—
1710.
Here we may also draw attention to the fact that the
term judge occurring in the singular by no means ex-
cludes what can. 1576 establishes concerning a board
of judges, either three or five, as the nature of the case
requires. For there can be no doubt that, if the case
requires a collegiate body of judges, the whole trial would
be null and void were this rule set aside.
After the bill of complaint has been presented, the
next step is properly and legally to summon the accused
or defendant. Here, again, canons X711-1725 must be
recalled. The accused, when duly summoned, will either
appear or not appear. In the latter case he must be
declared in contempt, according to can. 1842-1851. If
he appears, he shall be granted a first hearing, as stated
under can. 1742-1746, but the oath cannot lawfully be
demanded of him. For the rest, says can. 1959. the
rules laid down in the first section of this book, and for
inflicting penalties the canons of the fifth book, must be
observed.
There are two canons, one of which provides for the
dignity of the sacred ministry and the other for a just
procedure. If the crime is of a very serious nature, and
the Ordinary is of the opinion that the faithful would be
scandalized if the incriminated cleric should exercise the
sacred ministry or perform spiritual functions or pious
exercises or publicly receive holy Communion, he may,
after having heard the promoter's advice, forbid the
exercise of the sacred ministry or of spiritual ecclesias-
tical functions, and the public reception of Communion.
This is a kind of suspension, but without penal char-
acter,4 and therefore irregularity would not follow its
4 See can. 2222, fi 2.
oogle
l
Original from
UNIVERSITY OF WISCONSIN
—
384 ECCLESIASTICAL PROCEDURE
violation. Note the terms, spiritual functions and public
reception, which indicate that neither temporalities nor
secret reception are forbidden.
Justice and safety require that witnesses be not in-
timidated or bribed. Hence if the judge fears that this
is being done, he may consult with the fiscal promoter,
and then issue a decree commanding the defendant for
the time being to leave the town or parish or to repair
to a place assigned to him, and there remain under sus-
pension. In the meantime, of course, if the defendant
should be a pastor, a substitute must be furnished at his
expense.
Title XX, On Matrimonial Trials, has been treated in
Vol. V of this Commentary, pp. 400-439.
Title XXI, On Ordination Trials, has been explained
in Vol. IV, pp. SSO-557.
t ( ' U1L, Original from
,00cVL UNIVERSITY OF WISCONSIN
—
PART II
THE PROCESSES OF BEATIFICA-
TION AND CANONIZATION
INTRODUCTION
5ince these processes are exclusively reserved to the
Holy See and are conducted by the S. Congregation of
Rites, which alone is competent in this important matter,
it would be presumptuous to comment on these canons.1
Therefore, a brief summary must suffice. The canons
referring to the ordinary power of the local Ordinary
will be pointed out as they occur. The Vicar-General
needs a special mandate (can. 2002) for each and every
case.
Canonization is an act by which the Sovereign Pontiff
definitely and, we may add, infallibly declares an in-
dividual who died in communion with the Church to be
a Saint and deserving of the veneration of the universal
body of the faithful.
Beatification is a preliminary step to this solemn act
and localizes, as it were, the veneration to the individual
who is declared beatus.
The node of procedure in both cases is twofold: vis.:
per viam ordinariam non cultus or per viam extraordina-
riam casus excepti seu cultus, — the difference being that
the ordinary method presupposes, before any discussion on
the heroic virtues is admitted, that no veneration has been
1 Neither do we desire to copy the Servorum Dei Beatification! *t Bea-
claBsical work of Benedict XIV, Uc torvm CononiMtiont, 4 Vola.
365
.OOgK. UNIVERSITY OF WISCONSIN
386 ECCLESIASTICAL PROCEDURE
given to the person in question, or, if such was given per
alms urn. that it has been lawfully abolished. The extraor-
dinary process consists in proving the existence of a
standing public and ecclesiastical cult bestowed upon the
person or persons in question. But each individual case
must be individually examined, unless martyrs are under
discussion who suffered in the same persecution and at
the same place. An instance are our English martyrs,
some of whom were put to death at the same time and
in the same place.2
Historically the earliest was, of course, the veneration
of the martyrs, two classes of whom are already men-
tioned in the fourth century: martyres vindicati et non
vindicati, according as they were recognized or not by the
ecclesiastical authority. St. Augustine briefly describes *
the process of recognition. The bishop in whose diocese
a martyr died, began the investigation by collecting the
documents and forwarding them to the primate or metro-
politan. The latter took cognizance of the acts, heard
the bishop's view, and, after due deliberation, declared
his own opinion as to whether or not the martyr should
be publicly honored. It goes without saying that the
veneration of martyrs as well as the celebration of their
anniversaries were at first purely local festivals. But
soon one church adopted the commemorations of an-
other, and thus the festivals of the most distinguished
saints came, to be celebrated outside their own dioceses.*
An investigation was required, so that the honors due to
Saints were not given to* heretics and schismatics.
In course of time there came to be associated with
the martyrs certain holy confessors, that is, ascetae or
\
aCfr. Bcde Camra., OS.E, The DonatUtit, L III, «. ti ff. (Migne,
/ English Martyrs. P. L„ 43. 629 ff).
B Brewultts Collotionis Cum 4 Dachesne-McCIare, Christian
Worship, 1903, p. 284.
ioi >gle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
CANONS 19KH2I4I 387
solitary monks, whose life was regarded as a continuous
martyrdom (St. Martin of Tours, St. Antony the Great,
St. Simeon Stylites, etc.).5 Whether this custom of
venerating confessors was prevalent already in the fourth
century or arose only in the eight, as some believe, is im-
material for our purpose.8
From the tenth century onward canonization came "to
be reserved to the Apostolic See, although some bishops
continued to " canonize " until the pontificate of Alexan-
der III (1159-1181), who issued the well-known Decretal
on the Relics and Veneration of the Saints,7 summarized
in the words : M Without the permission of the Pope no
one may be venerated as a Saint." Ever since this has
been law in the Church, and subsequent papal constitu-
tions 8 merely determined the method of procedure, which
is now cast into legal form. We will give a brief con-
spectus :
4. Extraordinary trial per viam cultufor causus except*.
5. Trial of Canonization.
From this sketch it will be seen that the activity of the
Ordinaries is limited to the preliminaries of the ordinary
trial.
The person* who hold special offices are (1) the actor,
or petitioner, who may be any faithful Catholic or con-
gregation (women must be represented by proxy) ; (2)
the postulator, who promotes and treats the case at the
competent tribunal; he must be a priest, either secular
or religious, and have his residence in Rome; (3) vice-
postulators are admitted, but require a special mandate.
One of the Cardinal-consultors of the S. Congregation
of Rites, designated by the Pope, acts as cardinal relator.
s Ifcdem, 2nd Lc Ceremor.ie dtlta lesti* Hieru*oUm," July s. *&34l
Cm»on*Msm*icn*, Rome, 1897, P- "ft- Bened. XIV. "Ad sepulchrs." Nov.
fl See Cmth. Encycl.. Vol. II, 365. «3. *»« »'*° S. Rit, C, Instruct*,
7C. 1, X, in, 45- >«7«-
B Especially Urban VIII, " Co*-
I Original from
1 K H 'gie UNIVERSITY OF WISCONSIN
388
ECCLESIASTICAL PROCEDURE
X. Persons at the Trial
2. Evidence Required
Petitioners, Postulators,
Cardinal Relator, Promotor
fidei, Subpromotores,
Notary, Secretary, Advocates
Evidence in General,
Witnesses and Experts,
Documents,
■
3. Ordinary Trial
of Beatification
* a) Process to be instituted by
the Ordinary iure propria.
Inquiry into the writings,
Informative process
Inquest into non-cultus
Transmission of th« acts.
b) Introduction of the trial at
the S. Congregation.
Revision of the writings
Discussion of the informa-
tive process
Discussion of the non-cultus
c) Apostolic trial.
Instructio Processus
Validity of the Apostolic
process
Heroic virtues or martyr-
dom, miracles.
-
The fidei promotor is appointed to defend the law and
must always be summoned. The one employed by the
S. Congregation is appointed by the Roman Pontiff, goes
by the name of promotor genercUis fidei, and is assisted by
oogle
Original from
UNIVERSITY OF WISCONSI
CANONS 1999-2141 389
the assessor of the S. Congregation; he is called sub-
promotor generalis fidei. But a promoter fidei may also
be appointed by the Ordinary.
Besides these persons, a notary must be appointed from
among the protonotaries apostolic for trials at the S.
Congregation, and a diocesan notary for the inquiries to
be made by the diocesan court. Religious cannot be
notaries except in case of necessity, and in trials con-
cerning their own order they cannot be notaries at alL
A secretary or canceUarius, advocates (counsels), and
proctors must or may also be employed, but the latter
two must be doctors in Canon Law and at least licentiates
in theology.
The next title of the Code treats of evidence; first in
general. The proofs must be full (plenae) and no others
are admitted. Four witnesses are required to establish
the fact that no worship was paid to the Servant of God ;
at least eight are necessary to prove the fame of his
virtue, his martyrdom and his miracles. To give evi-
dence of virtue and martyrdom eye-witnesses are re-
quired, and historical documents are admitted only as
aids. However, in ordinary trials concerning ancient
cases, and in extraordinary trials, hearsay and public
rumor are admitted together with authentic contemporary
documents.
Any one who was acquainted or familiar with the Ser-
vant of God, also his relatives and servants, including non-
Catholics and infidels, may be admitted as witnesses;
but the confessor, the postulator, the advocatus, and the
judge are excluded.
All the faithful are obliged to submit whatever evidence
they may have against the virtues, miracles, and martyr-
dom. Religious of both sexes must forward such in-
formation under seal directly to the Ordinary, and their
G I Original from
JUglC UNIVERSITY 0FWI5C0NSIN
390 ECCLESIASTICAL PROCEDURE
superiors arc not allowed to inspect such letters. The
superiors should take care that their subjects present
themselves for deposition, but should not compel them to
testify favorably or unfavorably.
Experts are principally the physicians who examine
miraculous cures ; they must submit a written report under
oath.
The documents demanded by the postulator must be
presented in full and must contain a declaration as to
their origin and authenticity. Extra-judicial documents
furnish no proof of sanctity or martyrdom; neither do
eulogies and funeral sermons, and much less testimonies
solicited by the friends of the Servant of God, even
though given by illustrious persons. Neither are his-
torical accounts sufficient proof, per se, unless inserted in
the acts proper.
Title XXIV details the process of beatification per viatn
non-cultus. The preliminary requisite is that of giving
oath. This must be administered to the local Ordinary
as well as to the Apostolic delegate, also to the judges,
the promotor fidei, the notary, the secretary, and to the
witnesses, experts, translators, and interpreters. The ob-
ject of this oath is to insure strict secrecy and to induce
all participants to do their duty conscientiously.
The postulator and vice-postulator must swear that
they will tell the whole truth and employ no fraudu-
lent means. The formula for this oath is a special one,
prescribed by the S. Congregation of Rites.9
• S. Rlt C, Oct. 5* -678f I i, n. j.
gle
Original fro ni
UNIVERSITY OF WISCONSIN
CHAPTER I
THE DUTIES OF THE LOCAL ORDINARY
Chapter I of this title (canons 203&-2064) refer par-
ticularly to the duties of the local Ordinary.
The petition for introducing a cause of beatification
must be directed to the Apostolic See. But before it is
admitted, the truth must be juridically established con-
cerning the purity of doctrine of the deceased Servant of
God, the fame of his sanctity, the virtues and miracles
he wrought, the fact of martyrdom, and the absence of
any peremptory obstacle ; finally concerning the fact that
no public worship has been paid to him. Hence the
postulator must petition the Ordinary: 1. To see to it
that the writings of the Servant of God be requisitioned,
i.e., seized and examined; 2. To arrange the formal in-
quiry (processus informativus), into his fame of sanctity,
his virtues in general, or his martyrdom, the cause of his
martyrdom, and his miracles ; 3. To institute an inquiry
as to the non-cultus.
in
The competent Ordinary in this matter is he in whose
diocese the Servant of God died, or in whose diocese
the miracles have happened. If the Ordinary himself
is related to the Servant of God, he shall delegate an-
other to conduct the trial.
If an inquiry was instituted within the past thirty years
into the fame of sanctity or martyrdom of the Servant
of God, but was interrupted before the case was intro-
duced at Rome, the Ordinary or his successor must in-
quire into the continuation of the fame.
39i
>gle
Original from
UNIVERSITY OF WISCONSIN
392 ECCLESIASTICAL PROCEDURE
The judge is the Ordinary himself, or a priest dele-
gated by him. If a delegate conducts the trial, two other
judges, taken from the college of synodal judges, must
be chosen by the Ordinary. All this must be done by a
formal decree.
The acts must be closed and sealed after every session.
Art. I
INQUIRY INTO THE WRITINGS OF THE SERVANT OF
GOD
1. The term "writings" comprises all published and
unpublished works, sermons, letters, diaries, autobiogra-
phies and manuscripts of every kind left by the Servant
of God.
2. The faithful must be publicly exhorted to deliver
up all his writings which they may have in their pos-
session. If a religious is concerned this publication must
be made in every religious house, and the superiors are
obliged to see to it that it is properly done.
The promoter fidei shall see to it that the publication
is also made in other places, where any writings may be
found.
3. The Ordinary, urged by the promotor fidei, shall
officially search for all such writings. If writings of
the Servant of God are likely to be found in another
diocese, he shall ask the Ordinary of that diocese to do
the same, according to law (especially can. 2043) and
forward anything he may find.
4. Those who wish to retain autographs of the Servant
of God must allow the notary to take an authentic copy
thereof, to be sent to the S. Congregation. Writings
found in libraries or archives, whence they cannot be
withdrawn, should ba faithfully copied or photographed.
Gi Original from
XJgiC UNIVERSITY QFWI5C0NSIN
CANONS 1999-2141 393
and authenticated by the notary; if no copy can be ob-
tained, the matter must be referred to the S. Congrega-
tion.
5. The notary must carefully describe the number and
quality of the writings, and the acts must be signed by
the Ordinary or his delegate, and the promoter fidei, and
sealed with the Ordinary's seal.
6. The postuiator must give oath that he will make a
careful requisition. If the Servant of God is a religious
of a female institute, the Mother General must give
the same oath and testify that all the writings of the
Servant of God have been delivered up by her and her
subjects.
7. In case of a tnartyr, the requisition may be made
after the commission has been appointed by the S. Con-
gregation.
Art. II
THE INFORMATION PROCESS
1. The processus informativus is to be instituted by
the Ordinary. If it was not begun until thirty years
after death of the Servant of God, no further procedure
is allowed except after proof is furnished that the delay
was not due to fraud, deceit, or culpable negligence.
2. The zvitnesses to be examined (can. 2019 f.) con-
cerning the fame of sanctity, martyrdom, or miracles, are
not required to testify specifically, but general testimony
as to the growth and existence of the rumor among hon-
est and serious persons is sufficient.
The witnesses are to be queried by the judge as to
their knowledge of the life, virtues, miracles, and martyr-
dom of the deceased, how they obtained their knowl-
edge, and whether it is of the nature of public rumor.
-m* { IrVlAlf> Original from
,00cVL UNIVERSITY OF WISCONSIN
394 ECCLESIASTICAL PROCEDURE
St
Then they must answer to the questions put by the pro-
moter of faith.
3. The acts of the inquiry may not be closed before
all the letters and papers of the faithful and the friends
and acquaintances of the deceased (see can. 2023—2025)
have been inspected by the promotor fidei. After all
the testimony has been gathered the tribunal shall, upon
having heard the promotor fidei, give notice to the postu-
lator to bring forward whatever he has within a fixed
term.
4. The judge, then, if the promotor Udei is satisfied,
shall command the notary to publish the acts of the in-
quiry, which shall be copied by a clerk designated by the
tribunal. The copy shall be in hand-writing (typewrit-
ing forbidden). It is to be collated with the original in
the presence of one of the judges and of the promotor
fidei, and then signed by the notary, the judge, and the
promotor, and sealed.
After the collation, the original acts are closed and
sealed, and placed in the diocesan archives, never to be
opened without the permission of the Apostolic See. The
abstract is closed and sealed with the seal of the Ordi-
nary. The notary shall make two copies of it, one of
which is to be forwarded to Rome, the other to be kept
in the diocesan archives.
Q
Art. Ill
INQUIRY INTO THE NON-CULTUS
Besides the two witnesses produced by the postulator,
the tribunal shall introduce two more, who shall testify
whether or not the Servant of God ever received a public
worship. Besides, the tribunal shall carefully inspect
his grave, the place (or house) where he lived and died,
G| Original from
008IL UNIVERSITY QFWI5C0NSIN
CANONS 1999-2141 395
and other places where indicatippa of a cult may be sus-
pected.
If the inquiry brings to light indications which show
that public worship was paid, the promotor fidei must
insist upon further investigation and the tribunal must
give sentence as to the existence of such worship.
Art. IV
s
TRANSMISSION OF THE ACTS TO ROME
1. As soon as the Ordinary has obtained the writings,
he must forward them to Rome, together with a judicial
report as to the care with which the requisition was con-
ducted. If other writings are found while the trial is
going on in Rome, they must be immediately forwarded
and inspected there before any further progress can be
made. ,
2. The abstract of the informative process must be
delivered by the Ordinary to the postulator, who shall
send it to the S. Congregation. At the same time he
(the postulator) shall forward letters from the judges
addressed to the S. Congregation, and letters of the
(diocesan) promotor fidei to the promotor general of
faith, in order that the S. Congregation may be informed
of the trustworthiness of the witnesses and the legal
formalities of the acts. For this purpose the Ordinary
shall also send a description or copy of the seal with
which the abstract was sealed.
3. Finally the Ordinary shall have the postulator to
send the complete result of the inquiry into the fact of
non-cultus to the S. Congregation.
jle
Original from
UNIVERSITY OF WISCONSIN
CHAPTER II
INTRODUCTION OF THE CASE AT ROME
1. The first investigation to be made is the revision of
the writings of the Servant of God. The revisors, chosen
by the Cardinalis ponens, must be priests and doctors
of divinity, and must give their opinion in writing. This
examination is made to ascertain the purity of doctrine
with regard to faith and morals and the virtues or de-
fects that may be gathered from these writings. The
final judgment, whether further procedure is permitted,
lies with the Supreme Pontiff.
2. The second investigation concerns the processus in-
formativus sent by the Ordinary through the postulator.
The papers are to be examined materially and formally,
and objections brought up by the promotor Hdei generalis
to be answered. The final judgment is pronounced at a
congress of Cardinals, by the Cardinalis ponens, in the
form of a doubt : " An signanda sit comwdssio introduce
tionis causae in casu et ad effectum de quo agitur." If
the answer of the Cardinals is favorable, a commission
for the introduction of the case is appointed. After that
the local Ordinaries can do nothing more without the
permission of the S. Congregation, and it is strictly for-
bidden to call the Servant of God whose case has been
introduced, " Venerable!
3. The third investigation regards the non-cultus, —
whether the sentence of the diocesan court is to be ratified
or not. If traces of worship have been found, the case
is suspended until every vestige has been removed.
396
>
jle
k ,|rt Original from
UNIVERSITY OF WISCONSIN
CHAPTER III
APOSTOLIC TRIALS
If a decree of non-cultus has been issued, the Sovereign
Pontiff is asked for the litterae remissoriales, which are
given by the Cardinal Prefect and permit the trial to be
instituted.
Art. I
INSTITUTION OF THE TRIAL
Two distinct trials are to be arranged : one concerning
the fame of sanctity, miracles, or martyrdom ; the other
concerning the virtues and miracles in particular, or
concerning the martyrdom. The first trial may be
omitted if the Cardinal Prefect and the promotor fidei
generalis deem it superfluous or inexpedient to inquire
anew into the continued fame of sanctity.
Here the services of the Ordinary may again be re-
quired. If important eye-witnesses are in danger of
death, or cannot be obtained at the time the trial concern-
ing the virtues and miracles or the martyrdom is to be
conducted, so-called litterae remissoriales are sent out
to at least five judges (if possible, dignitaries), one of
whom is the Ordinary, who shall act as presiding officer
— now no longer iure ordinario, but delegate
In the trial concerning the miracles an expert must be
chosen. Besides the promotor fidei generalis shall by
letters patent choose two subpromotors and send the
interrogatories to these, who, however, shall not open the
397
Gj 4 Original from
UOglt UNIVERSITY 0FWI5C0NSIN
■
pi
398 ECCLESIASTICAL PROCEDURE
envelope until the examination begins. The delegated
judge must present their credentials to the Ordinary,
After all these preliminaries are completed, the presid-
ing officer shall convoke the tribunal within at least three
months after notice was received, and the trial should
be finished within two years. Before it is closed, the
remains of the deceased Servant of God must be juri-
dicially examined. The acts must then be forwarded to
Rome.
Art. II
JUDGMENT OF THE VALIDITY OF THE TRIAL
After these acts have been forwarded to Rome, the
S. Congregation shall judge of the validity of the pro-
cedure, hear the promoter general, and finally give judg-
ment. This is done in the presence of the Cardinal Pre-
fect, the Cardinalis ponens, and three other Cardinals of
the same Congregation, the Secretary, the protonotary
apostolic, the promoter general, and the suhpromoter.
Art. Ill
JUDGMENT ON THE HEROIC VIRTUES
The discussion of the virtues cannot be begun before
fifty years have elapsed since the death of the Servant
of Cod. The discussion concerns his practice of the
theological virtues and of the four cardinal virtues (pru-
dence, justice, temperance, fortitude), especially whether
he possessed them in a heroic degree.
In the case of martyrs, the question is concerning the
cause of their martyrdom, and the signs and miracles
wrought. Difficulties are raised by the promoter general
■I
and answered by the advocates. Everything has to be
taken down in writing. The Supreme Pontiff is informed
>Ie
^ -,\,^ Original from
UNIVERSITY OF WISCONSIN
CANONS 1999-2141 399
of the result of the discussion, and afterwards a general
congregation is held by the Cardinals of the S. Congrega-
tion, its prelates, officials, and consultors. The judg-
ment whether the heroic degree of these virtues is verified,
remains with the Pope, who commands the Secretary of
the S. Congregation to issue a decree if the judgment
was favorable. After the issuance of this decree the
Servant of God may be called Venerable.
Art. IV
JUDGMENT ON THE MIRACLES
i. Besides heroic virtues or martyrdom, miracles
wrought through the intercession of the Servant of God
are required. As a rule two suffice, if testified to by
eye-witnesses at the informative as well as at the Apostolic
process. Three are demanded if eye-witnesses testify
only at the informative trial, whilst at the Apostolic trial
only hearsay evidence is presented ; four are demanded if
at both trials only hearsay witnesses and documents are
produced.
2. Since miraculous cures are under discussion, two
medical and surgical experts, who enjoy a good name
and fame in their profession, must be consulted.
3. The discussion takes place at three distinct con-
gregations, the last of which is a general one, held in
the presence of the Sovereign Pontiff. After the miracles
have been acknowledged, the doubt is formulated as fol-
lows: "An tuto procedi possit ad beatificationem Servi
Dei." If the answer of the consultors and Cardinals
is favorable, the Pope issues a decree to that effect.
. .. *g|g Original from
■OOgK. UNIVERSITY OF WISCONSIN
TITLE XXV
EXTRAORDINARY TRIAL PER VIAM NON-
CULTUS OR CASUS EXCEPTI
I. A positive approbation of the Roman Pontiff may
be asked for the cult bestowed on Servants of God who
enjoyed a tolerated cultus after the pontificate of Alex-
ander III (1159-1181) and before the time determined
by the decrees of Urban VIII (1623-1644). It may
be recalled that Urban VIII strictly forbade any author-
ization of public worship to be granted to anyone ex-
cept such whose veneration had been established from
time immemorial or at least a hundred years previous
to the publication of the Constitution " Coelestis Hieruso-
lent" (July 5, 1634), with the knowledge and approba-
tion of the Apostolic See or the local Ordinary. The
same constitution admitted as lawful a veneration of such
Beati or Saints based upon a special indult or decree of
the S. Congregation of Rites, or the writings of the
Holy Fathers and other holy men.1 Now Can. 2125
rules that, in order to obtain the approbation of the
Roman Pontiff, a trial (processus) * is required. The
regulations for this trial are laid down in the following
canons. The competent Ordinary for conducting the
inquiry is he in whose diocese the cultus was given, or
the documents were found, or who has the right of pre-
occupation if several Ordinaries are concerned. There-
1 Cfr. Coll. P. F., n. 77. derrtood in the light of the Coo*.
: We suppose, however, that the of Urban VIII.
necessity of this trial must be un-
400
*Ie
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANONS 1999-3 141 401
fore the Ordinary who first summons witnesses is en-
titled to complete the preliminary trial.
2. The postulate then demands of the Ordinary:
a) to requisition the writings of the Servant of God,
and
b) to institute an inquiry concerning the fame of sanc-
tity and virtues, or martyrdom and miracles. This is re-
quired in order to answer the following questions:
Whether there was in the place a constant and general
fame and persuasion of the saintly life of the Servant
of God, or of his martyrdom, and the reason thereof,
also of the miracles wrought by his intercession; and
whether this veneration still exists at present and in what
manner it asserts itself.
3. Then the acts and results of the inquiry are sent
to the S. Congregation, where the dubium is proposed:
"An signanda sit cotnmissio introductions causae."
4. After this the litterae remissoriales are dispatched to
the diocesan judges, in order to arrange for the (dele-
gated) apostolic process on the casus creep tus, the result
of which is again forwarded to Rome, where the final
sentence is given, investigation into the virtues or martyr-
dom ordered, and finally, the so-called decree of equiva-
lent beatification (aequifollens beatificatio) is issued/
I Cfr. can. 077.
-
-
oogle
Original from
UNIVERSITY OF WI5C0NSI
TITLE XXVI
THE PROCESS OF CANONIZATION
X. A document establishing formal or equivalent
beatification is required to introduce the process of can-
onization, or else an inquiry must be made as to the
positive permission of the cult on the part of the Roman
Pontiff.
2. To proceed to the canonization of a formally
beatified Servant of God, two miracles wrought through
his intercession after beatification, and three miracles in
case the beatification was aequipolhns, are required.
The discussion of these miracles takes place as stated
under beatification (can. 21 16-21 24).
3. Then the Roman Pontiff issues a decree of solemn
canonization, the ceremonies and solemnities of which are
those approved by the Roman Court.1
1 Booklets are generally dittrib- aration and for those admitted to
uted oa auch oecaaiooa, which gire witneaa them — *rptri*»lid loqui-
all the information as to the aol- mur — a good dote of patience.
emnities; theae require cotUy prep-
403
►ogle
Original from
UNIVERSITY OF WISCONSIN
p
o
PART III
MODE OF PROCEDURE IN CER-
TAIN CASES AND THE APPLI
CATION OF PENALTIES
This last part of the Book on Ecclesiastical Procedure
treats of seven particular cases which apparently call for
a formal trial (strepitus iudicii) but in course of time
have been made the object of special legislation, and
hence are considered separately.
The legislator first lays down certain general rules,
which apply equally to all seven cases, unless expressly
modified, and then proceeds to determine each case in
particular.
general rules
Can. 2142
In processibus de quibus infra, adhibeatur semper
notarius, qui scripto consignet acta quae ab omnibus
subscribi debent et in archivo scrvari.
Can. 2143
§ 1. Quo ties monitiones praescribuntur, hae fieri
debent vel oretenus coram ca&cellario aliove official!
Curiae aut duobus tcstibus, vel per epistolani ad
normam can. 1719.
403
ogle
% ,.] , Original from
.UNIVERSITY OF WISCONSIN
N
N
■
404 ECCLESIASTICAL PROCEDURE
§ a. Pcractae monitionis eiusque tenons docu-
mentum authenticum in actit servetur.
§ 3. Qui impedit quominus monitio ad se pcrveniat,
habeatur pro monito.
Can. 2144
§ x. Examinatores et consultores ac notarius debent,
interposito ab initio processus iureiurandov servare
secretum circa omnia quae ratione sui muneris
noverint ac praesertim circa documenta occulta, dis-
ceptationes in consilio habitas, suffragiorum nurnerum
ac motiva.
§ 2. Si huic praescripto minime paruerint, non solum
a munere amovcri debent, sed alia ctiatn condigna
poena ab Ordinario, servatis servandis, plecti poterunt;
ac praeterea damna, si qua inde secuta sint, sarcirc
tenentur.
Can. 2145
§ 1. In iis processibus sum marie procedendum est;
at duo vel tres testes sivc ex officio arcessiti sive a
parte inducti audiri non prohibentur, nisi Ordinarius,
auditis parochis consultoribus scu cxaminatoribus,
existimaverit partes eos inducere ad moras nectendas.
§ 3. Testes et periti, nisi iurati, ne admittantur.
Can. 2146
§ 1. A definitive decreto unicum datur iuris
remedium, idest rccursus ad Sedem Apostolicam.
§ 2. Quo in casu ad Sanctam Sedem omnia acta
processus transmittenda sunt.
§ 3. Pendente recursu, Ordinarius paroeciam vel
beneficium quo clericus privatus sit, alii stabilitef
conferre valide nequit
ogle
Original from
UNIVERSITY OF WISCONSIN
*
CANONS 2 142-2 146 405
1. In all these trials a notary should be employed. He
should put the acts in writing and see to it that they are
signed by all concerned and preserved in the archives.
Although the text commands the participation of a no-
tary, we hardly believe that the absence of a notary would
invalidate the procedure. For the chief and essential
point is the writing, which, as the tf Maxima cura" clearly
states, can be done by a clerk, called actuaries.1 Those
who have to sign their name to the documents or acts
before they are filed away in the archives, are all who
took an active or passive part in the trial.
2. Admonitions, if necessary, may be made orally or
in writing. If they are administered orally, this must
be done by the Ordinary in the presence of the chancellor,
or some other official of the diocesan court, or two wit-
nesses. If by letter, the latter should be registered and
receipted for by the post office.*
Here the question arises whether the notary mentioned
in can. 2142 is required. It appears to us that his pres-
ence is superfluous. For, as § 2 of canon 2143 states,
the main point is to have a document to the effect that
the admonition or warning was duly administered. This
can be drawn up and filed equally well by the chancellor.
If the notary were absent and inconveniences might fol-
low, it would certainly be advisable and permissible to
have the diocesan chancellor act as notary (can 372, § 3).
Whoever prevents the admonition from reaching him
is regarded as having been admonished. Thus one who
would refuse to accept a registered letter, of which the
postmaster must have a receipt from the addressee, would
be considered as having received it. The same is true
1 Phil X, Motu proprio of Aug. I See can. 1719.
to, 1910, I 10, b. 1 {A. Ap. S.,
It *4i>.
oogle
fcJ-,|^, Original from
UNIVERSITY OF WISCONSIN
4o6 ECCLESIASTICAL PROCEDURE
if he would not open the letter or destroy it unread.
3. Examiners, consultors, and the notary must at the
very beginning of the trial promise under oath to keep
the secret"
This secret comprises all the knowledge gained in virtue
of their office, especially secret papers, the debates or
discussions held at the meetings, the number of the votes,
etc. If any of these officials violate the law of secrecy,
they must be removed from office. The Ordinary may
also, servatis servandis, mete out other suitable or pro-
portionate punishments. Besides these officials are bound
to restitution if any damage results from the revelation
of a secret.
The oath, says the text, must be given ab initio pro*
cessus, which has been declared * to be the first session or
meeting held for each and every case (but not every
session of the same case). However, since the notary
appears to act at the admonition in his official capacity
for this whole procedure,5 it would be more logical to
refer the beginning of the trial to the administration of
the canonical warning, at least for the notary. Of course,
for a merely paternal admonition this oath is not required.
The secret is the official one, or secretutn commissum,
a The formula for taking this stone kuius officii, etiam sub specie
oath (published in the . '. Ap. S., doni, oblatum, nee ante nee Post,
IV, 1.1-:) is as follows: " Ego V. recepturnnu Sic me Deua odiuvet
N. extminator (vet parochus con- et kaec sancta Dei Evangelia, Quae
suitor) synodelis (vel pro-synodalis) meis manibus tango."
spondei, voveo ac iuro munus et * S. C Consist, Feb. 15, 1912
offUium mihi demaniatum me fideli- (A. Ap. S., IV, 141): " singulis zHei-
ter, quacumque humana affectione bus, in prima sessione, sub poena
postposita, et sincere, quantum in nullitatis actorum."
me est, executurum: secretum <■/>• 0 Maxima cura, can. 1, says;
eii circa omnia quae ralione mei "Monitie . . . ut peeempfaria sit el
munerir noverim, et maxime circa proximae amotionis praenuntia, fieri
documenta secreta, disctptationes in ab Ordinario debet, non paterno
coniilie tmbiias, suffragiomm nw- d*mtaxat more, verbotenus et clam
merum et rationes religiose servo- omnibus; sed ita ut de eaiem is
turum; nee quidquam prorsus, occa- actis Curiae legitime constet"
ogle
f ■ , ,1 » Original from
UNIVERSITY OF WISCONSIN
"
CANONS 2142-2146 407
which is based upon an explicit or implied contract, and
may safely be styled "privileged knowledge." There-
fore, in general, it comprises every kind of knowledge
gained in virtue of that office; especially, as the text
says, all that proximately concerns the case under dis-
cussion.
That the obligation is a grave one (sub gravi) is evi-
dent not only from the importance of the official secret
itself, but also from the penalties threatened to violators.
i.° The Ordinaries are commanded to punish and there-
fore are not at liberty to apply or not to apply this penal
sanction. They must (debent) remove the transgressors.
But when? As soon as the violation is proved, or as
soon as the bishop is morally certain that an examiner
or consultor or notary has revealed a secret. No formal
procedure is required,6 otherwise an indefinite proceed-
ing would ensue.
2.0 Other penalties may be inflicted. Here no obli-
gation is stated, but it is left to the prudent judgment
of the Ordinary. In case he should decree further penal-
ties, besides removal, he is bound by the conditions of
common law required for inflicting certain punishments.7
This is the meaning of servatis servandis.
3.0 There is a moral obligation to indemnify the injured
party. If we say moral obligation, we do not mean to
exclude justice, nor to deny that juridical means could
be employed, but use the phrase in order to convey the
idea that conscience itself dictates the obligation. The
amount of indemnification is guaged by the damage done.
The manner of indemnification depends on the circum-
stances of each case. Broadly it may be said that the
Ordinary should decide upon the measure and mode of
-
<
« F. Cappcllo, De Administratwrn T Cfr. can. 2222 f.; alio 2J91,
Amotion* Parochorttm, 1911, p. 86 f. '-07
3
i Original from
■OOgie UNIVERSITY OF WISCONSIN
408
ECCLESIASTICAL PROCEDURE
—
indemnification. If a criminal case ensues, it must be
determined according to can. 1935 ff. All of which goes
to show that officials should keep the secret strictly, in
order not to injure anyone's good name, and avoid being
impeached.
4.0 Can. 2145 rules that summary proceedings should
be employed in the trials now under discussion. How-
ever, two or three witnesses, either called officially or
by the party, may be admitted, unless the Ordinary, upon
consultation with the consultors or the examiners, should
come to the conclusion that these witnesses are simply
brought to delay the trial.
What summary proceeding involves is indicated in can.
1840 f . It is evident that, though it is a summary trial,
the following canons must be followed. Witnesses and
experts must all be sworn in, otherwise they cannot
be admitted. It is not stated what kind of witnesses
are to be called. Therefore can. 1756-1758 should be
consulted. It is but natural that the witnesses mentioned
in can. 2143, § 1, should be of clerical rank, although
laymen (sexus virilis) are not debarred, provided they
are trustworthy and of good reputation.
5.0 No appeal, but only a recourse to .the Holy See
(S.C. Concilii) is open from a definitive sentence in any
of these trials. If recourse is had, all the documents
must be forwarded to Rome. This recourse must be
treated like an appeal, of which can. 1881 says that it
should be made within ten days by notifying the judge
who has given the sentence. Pending the recourse, the
Ordinary cannot validly confer the parish or benefice of
which the clergyman has been deprived on another, except
temporarily. Therefore no permanent appointment can
validly be made pending a recourse. This follows from
the very nature of the case.
>ogle
Original from
UNIVERSITY OF WISCONSIN
■
TITLE XXVII
PROCEEDINGS FOR THE REMOVAL OF
IRREMOVABLE PASTORS
Our text is part of the well-known decree "Maxima
cura," which was issued by the S. Consistorial Congre-
gation, Aug. 20, 1910, at the special request of Pius X.
The full title of said decree is : " Decretum S. C. Con-
sistorialis de amotione adtninistrativa ab officio et bene'
ficio curato." x The formal law established by this de-
cree changed the former procedure in removing pastors
from their parishes. The intention of the lawgiver was,
on the one hand, to formulate more accurately the al-
ready existing but scattered decisions which in the course
of a century had emanated from the Roman Court for
a more expedient and less obnoxious removal of inefficient
pastors, and, on the other hand, to safeguard and promote
the welfare of the Church (solus reipublicae supreme lex
est).2 There is no doubt that the so-called desservants,
who were introduced by the organic articles of Napoleon
I, influenced the ecclesiastical legislation in changing the
application of former laws. For these were based on
the old view of the beneficiary system, which regarded
a pastor as so closely connected with the benefice itself,
that it seemed a hazardous task to remove him. It is
quite true that some allusions to a change or transfer
1 Cfr. A. Ap. S.. II, 6j6 fl. Pfarrtr im Verwaltunzsw§ge,
3 See the preface to the decree; Mainz, 191 1, p. 2 ff.
ilea Hilling, Die Amtsentktbung dtf
409
jle
^^1^, Original from
UNIVERSITY OF WISCONSIN
4io
ECCLESIASTICAL PROCEDURE
—
N
■
from one place to another are found in the Decretals;
but a permanent removal, such as the "Maxima cura"
and our Code contemplate, cannot be discovered in the
old law.*
This is quite intelligible if we recall that canonists
established two kinds of perpetuity: one called objectiva,
attached to the benefice, and the other one styled subjec-
rivo, following the person of the holder. This double
perpetuity and the feudal idea of a benefice rendered a
pastor irremovable, unless criminal procedure or privation
of benefice was set in motion.
A decisive step, which paved the way for the present
discipline, was taken by the Council of Trent, when it
established a kind of temporary removal by giving the
bishops power to appoint vicars or coadjutors to illiterate
and inexperienced pastors.* A further development was
brought about in the nineteenth century, in consequence
of the appointment, in France and Belgium, of
desservants, who were pastors according to ecclesiastical
law, but according to the Napoleonic Code mere minis-
ters dependent on the civil prefects. It cannot be denied
that conditions have changed decidedly and that the
" salus reipublicae" really requires a more up-to-date
method of providing competent and efficient pastors, mak-
ing the office more prominent than the benefice. Hence
it is not surprising that the German Bishops prepared a
postulatum at the Vatican Council, asking for an invol-
untary transfer of pastors, or a dismissal with a sufficient
pension, if the pro-synodal examiners pronounced a sen-
o C 5, X, III, 19. Card. Gennari
(Sulla privaMione del beneficio e s*l
procisso criminal* de- ckicrici, 1905.
p. 215 f.) thinks he has found allu-
sions to administrative removal, but
the decisions of the S. C C up to
the middle of last century only men-
tion transfer or privation (see
Ric hter, Trid., p. 119). " Potmk
prius inveniri," a famous Roman
theologian would cay.
4 Sets. IT, c. 6, de Re}.
*Ie
Original fro ni
UNIVERSITY OF WI5C0NSI
CANON 2147 411
a
tcnce of unfitness against them.8 Although this posiula-
tutn could not be acted upon on account of the trouble-
some events in Rome, the Codification Commission in
1904 took up the subject The result of its debates was
laid down in the "Maxima Cura" a part of which has
entered the Code. The decree also applied to the United
States, as was formally declared to the late Apostolic
Delegate, Msgr. Falconio, on March 13, 1911, by the
Consistorial Congregation.6
It is not necessary to defend this new legislation. Only
one remark may be added. The pastors have no reason
to complain of the change, because the law guarantees
orderly procedure and requires canonical reasons, which
the bishops are not allowed to overlook or stretch beyond
due limits, thereby binding the Ordinaries to the common
law and protecting the pastors against arbitrary removal.
The bishops cannot complain, because they have the law
on their side and arc sustained in the exercise of their
pastoral right. The faithful have no grounds for com-
plaint because the supreme law, namely, their own wel-
fare, is fully safeguarded and promoted.
Note that this removal must not be confused with pri-
vation from office or benefice, because privation is strictly
an ecclesiastical penalty, which requires the formalities
of criminal procedure, and therefore presupposes a crime
in the proper sense of the word, proved and declared.
REASONS FOR REMOVAL
Q
Can. 2147
§ i. Parochus inaraovibilta a sua paroecia amoveri
potest ob causam, quae ipsius ministerium, ctiam citra
*CoU. Uc. V, II, 875; Grande- « EccL Rtvitw, Vol. 44. 5#°-
rath-Kirch, Gtschichte dei Vmtik.
Kemmih, S90& I, 444.
^Ie
I , Original fro ni
UNIVERSITY OF WISCONSIN
4i2 ECCLESIASTICAL PROCEDURE
gravem suaxn culpam, noxium aut saltern inefneax
reddit.
§ 2. Hae causae sunt praesertim quae tequuntur:
i.° Imperitia vel pennanens infirmitas mentis aut
corporis, quae parochum suis muneribus rite obeundis
ixnparem reddit, si, iudicio Ordinarii, per vicarium
adiutorem bono animanun provider! nequeat ad
normam can. 475;
a.° Odium plcbis, quamvia iniustum et non uni-
versale, duxnmodo tale sit, quod utile parochi
ministerium impediat, nee brevi cessaturum prae-
videatur;
3." Bonae existimationis amissio penes probos et
graves viros, sive haec oriatur ex levi vivendi ratione
parochi, sive ex antique eius crimine quod nuper
detectum eximatur iam poena ob praescriptionem, sive
ex facto familiarium et consanguineorum quibuscum
parochus vivit nisi per eorum discessum bonae parochi
famae sit satis provisum;
4.0 Probabile crimen occultum, parocho imputatum,
ex quo Ordinarius prudenter praevidet magnam in
posterum oriri posse fidelium ofFensionem;
5.0 Mala rerum temporalium administratio cum
gravi ecclesiae aut beneficii damno, quoties huic malo
remedium afferri nequeat sive auferendo administra-
tionem parocho, sive alio modo, quamvis aliunde paro-
chus spirituale ministerium utiliter exerceat.
An irremovable pastor may be removed from his par-
ish for any reason which renders his ministry harmful,
or at least inefficient, even though there be no grievous
fault implied on his part.
What an irremovable pastor is has been stated in can.
454, to which we may add the decree of the S. C. Con-
{ "lAf-u-iL* Original from
jr^-i OOgK. UNIVERSITY OF WISCONSIN
CANON 2147 413
a 1
sistorialis, Aug. 1, 1919, where it is stated that three
things are required to establish a parish: (a) a decree
or order of the* Ordinary assigning the boundaries, (b)
a parochial residence, and (c) a sufficient endowment for
the maintenance of the pastor and of divine worship.
But to make a parish irremovable, it is furthermore
required that a declaration be made to that effect, at least
negatively; for the Ordinary may, for just reasons, de-
clare it to be a removable parish. This declaration is
absolutely necessary, because otherwise, according to can.
454* § 3> the parish is presumed to be an irremovable
one.7 We do not, however, wish to deny that a former
declaration made according to the Hid Plenary Council
of Baltimore (n. 32 ff.) would be sufficient.* Hence
where there are irremovable pastors to the amount of
one-tenth of all the pastors of the diocese, this custom
may be followed, unless the Ordinary wishes to declare
still other parishes as irremovable, which he may do
without asking the Holy See.
The text says that the removal may be made for rea-
sons which do not imply grievous guilt (citra culpam
gravem). Guilt presupposes a transgression, and
grievous guilt a violation of a serious law, and, since we
are speaking of the law, it means an external violation,
no matter what the theological guilt may be. Here the
difference between removal and privation as stated above
becomes clearly manifest. All the five reasons stated
under § 2, really may involve either no guilt at all or
only a slight fault, although some may entail grievous
guilt.
However, these reasons must bear upon the sacred
ministry, or rather, they must affect it in such a way that
Q
1A. Ap. S., XI, 346.
8 Sec Vol. II, p. 519 1 of this Commentary.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
414 ECCLESIASTICAL PROCEDURE
O
its exercise becomes either hurtful or ineffective (noxium
vel saltern inefficax). These two adjectives, which sub-
stantially occur in the "Maxima Cvra" are a general
indication of the five following reasons. " Hurtful " in-
volves more of personal cooperation, whilst " inefficient n
or " ineffective " points to facts over which the pastor
has no control, or in regard to which he might plead
" not guilty."
§ 2 of can. 2147 tnen enumerates (not taxatwe, but
demonstrative), five reasons which chiefly (praesertim*)
may necessitate a removal. That the enumeration is to
be taken demonstrative only, i.e., as a proximate, not
exclusive enumeration, the word praesertim sufficiently
proves.* These reasons are:
I. Inexperience or permanent mental or bodily in-
firmity which render the pastor incapable of discharging
his obligations properly, provided, however, that the Or-
dinary is convinced that the welfare of the souls in his
charge cannot be provided for by the appointment of a
coadjutor, according to can. 475.
This reason comprises the first three of the ,e Maxima
cvra" which document is, therefore, helpful for the in-
terpretation of the Code.
a) Imperitia is not identical with ignorance, for the
latter signifies defect or lack of knowledge, whilst in-
experience rather means incapacity for, or inability to
exercise, the sacred ministry. A priest may be a good
theologian, but a poor manager. Ignorance is now-a-
days hardly conceivable among those who have passed
" laudabiliter " through a regular seminary course.
Hence imperitia rather concerns the method of handling
a parish ; lack of tact and awkwardness in the confessional
or pulpit, in dealing with the parish officials, etc This
P
"\
* The reuou la " Ma*im* C»rg " were underitood f*-r«*tw.
>Ie
/ - ^ t ,|„ Original from
UNIVERSITY OF WISCONSIN
CANON 2147 4*5
greatly depends on the place and surroundings.10 A
boorish priest may be a scandal to city people, but create
little disturbance in a distant country place. To inex-
perience, of course, belong ignorance of the language of
the country, and an offensive lack of familiarity with pas-
toral and moral theology.
b) Mental infirmity here comprises all kinds or forms
of insanity, which is described in "Maxima cura" as
incurable, or, at least, of the kind which is always apt to
recur, and which causes loss of esteem and authority
even after the recovery of the pastor. Serious fatuity,
stupidity, or weakmindedness, also belong hither.
c) Bodily infirmity includes all diseases which are of a
serious and lasting character. Just how long an in-
firmity, either mental or bodily, has to last in order to
render one unfit for the sacred ministry, is not stated in
our text, except by the word permanent,11 which may
be rendered by habitual, durable, or incurable. A physi-
cian's verdict is required, but we do not, of course, ex-
clude a miraculous cure.
Very noticeable is the clause added to all three reasons :
if a coadjutor should not be able to provide for the wel-
fare of the souls. An accurate rule that would tell us
when the weal of the parish requires the appointment of
a new pastor in casu, cannot be established. For much
depends upon the qualities of the coadjutor and the con-
dition and attitude of the parish. At any rate, since the
clause sets up this condition, the Ordinary must try a
coadjutor.
2. The second reason is popular hatred, even though
unjust and not general, provided it is such as to prove
a
c
10 Hilling, I. c, p. u. which, however, may be prolonged
11 Can. 155 and 465 prescribe a in case of pastors,
six months' terra for provision,
Q
jle
/""* ^ irl|A Original from
UNIVERSITY OF WISCONSIN
416 ECCLESIASTICAL PROCEDURE
an obstacle to the pastor's useful ministry and is not
likely to cease within a short time. Odium is more than
aversion, and must manifest itself by outward signs, for
instance, insults, demonstrations, injuries done to parish
property. Serious and prolonged newspaper attacks may
also betray a sufficient degree of hatred. Such hatred
is unjust if the pastor has given no plausible or solid
reason for it; it is just, if the pastor has caused the
hatred, either by imprudence or imputable sinful pro-
vocation. The text admits any kind of hatred. It is
not universal if only a portion of the parish is hostile.
One or two families, or a few individuals should not
cause alarm if the parish is of any size. However, one
influential family with a widespread relationship may
create a rather extensive hatred. In that case the condi-
tion added in our paragraph would solve the question.12
For this hatred is supposed to impede the useful exercise
of the sacred ministry and to be of some duration. The
sacred ministry would be impeded if the reception of the
sacraments *md attendance at divine service would de-
crease considerably, if the financial condition of the parish
would be seriously imperilled and factions would arise.
The duration would be of from -six months to a year. It
may be added that the hatred must be directed against the
person of the pastor, not against religion as such.
3. The third reason is loss of esteem among righteous
and serious-minded men. Esteem is paid to the office
and authority of the pastor, and the loss of it necessarily
renders the exercise of the sacred ministry ineffective, if
not detrimental. The persons whose esteem the pastor
has lost must be men of character, not garrulous women,
even though of the " upper " class.
uCapfwllo, I. c, p. 3r-
P
"\
^
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 2147 417
The text then states how this loss may be brought
about.
a) It may arise from the pastor's conduct. The
phrase, " ex levi vivendi ratione parochi," is wider than
the corresponding passage of the u Maxima euro" which
reads : " sive haec procedat ex inhonesta out suspects
vivendi ratione parochi" The Code simply speaks of
levity of conduct, which must be interpreted in the light
of canons 138, 140, and 142." Custom and actual con-
ditions should also be taken into consideration.
b) The loss of esteem may be caused by the belated
discovery of a former crime which is no longer pun-
ishable by reason of prescription.1* Concerning prescrip-
tion of crimes and criminal action see can. 1703-1705.
The civil-criminal law, too, must be consulted; for the
priest's good name is here concerned.
c) Lastly, a pastor may lose the esteem of his peo-
ple through the conduct of his dependents and blood
relations who live with him. This is a rather obscure
text. The reading itself is not quite certain, whether
familiarium or familiarum; the edition of Gasparri reads
familiarium,15 which includes servants who live in the
parsonage. Consanguinei here includes blood relations
and oMnes. Therefore if a factum — which is a very
wide term — of a scandalous nature has been perpetrated
by one of these persons, which would compromise the
pastor, the obnoxious person or persons should be dis-
missed from his service or household. But it may be
it See Vol. II, p. 86 if. of this fore ordination if the pastor is well
Commentary. known in the place.
l* Whether thla goes back to the io There seems UtUc doubt that
time before ordination ia not clearly the correct reading is familiarit,
stated, but seems implied, because not familiae, because the latter are
the loss of esteem may follow even included in the term consanguine*.
such crimes m were committed be-
jle
C* ^ v .J,, Original fro m
UNIVERSITY OF WISCONSIN
418 ECCLESIASTICAL PROCEDURE
that dismissal would cause greater disturbance, in which
case removal might be decreed.
4. The fourth reason is a probable crime imputed to the
pastor, which, though secret, in the bishop's judgment
may create great scandal among the faithful. On crime
and its public or occult nature see can. 2195-2197. The
text adds * probabile" a probable crime, i.e., one that has
at least the semblance of having been committed by the
pastor and must be imputed to him. A great deal depends
on the persons who know about the crime. Then the of-
fence the people would take at such a discovery must be
really great, and not be limited to the one or other fanatic
or puritan. Some people have a very strange idea of the
Decalogue. But where honesty and justice are involved,
people are justly sensitive. The judgment must be left
with the bishop.
5. The fifth reason is faulty administration of the tem-
poralities, to the great damage of the church or benefice.
This is culpable if it involves a misappropriation or em-
bezzlement of public funds, i.e., funds belonging to the
church or diocese, diocesan collections, etc., or risky specu-
lations, which are a sort of illegal gambling. It may not
involve moral fault, but simply result from financial in-
capacity or inability to keep books and collect the rev-
enues of the church or benefice. The faultiness of the
administration is to be reckoned according to the gross
amount of the revenues involved and the amount lost, for
the text says, "cum gravi damno."
But this reason is a limited one, as removal is indi-
cated only 1/ no other remedy is left to counteract the
evil and the temporal administration cannot be taken
away from the pastor in some other way. Hence the
bishop may entrust the administration of the temporali-
ties of the parish to the trustees, or to the curates or
p
►ogle
£ * ^ .. ,L» Original from
UNIVERSITY OF WISCONSIN
■
pi
CANONS 2148-2149 419
•
assistants or alio modo, by giving the delinquent pastor
practical lessons in administration or sending him an
auditor once in a while, teach him the necessity of keep-
ing his books properly. All these means are applicable
even in cases where the pastor performs his spiritual
duties properly. For temporal loss often entails spiritual
disadvantages, since it may burden the church or even
bring law suits upon the pastor, the trustees, or the
diocese.
invitation to resign
Can. 2148
§ 1. Quoties, prudenti Ordinarii iudicio, in unam ex
causis de quibus in can. 2147 parochus incidisse
videatur, ipsemet OrdinariuE, auditis duobus examina-
toribus et veritate gravitateque causae cum eis dis-
cussa, parochuxn scripto vel oretenus ad paroeciae
renuntiationem intra certum tempus f aciendam invitet,
nisi agatur de parocho vitio mentis laborante.
§ 2. Invitatio, ut acta valeant, continere debet
causam quae Ordinarium movet et argumenta quibus
ipsa innititur.
Can. 2149
§ 1. Si parochus intra praestitutos dies nee renuntiet
nee dilationem postulet neque causas ad amotionem
invocatas oppugnet, Ordinarius, postquam constiterit
et invitationem ad renuntiandum, rite f actam, parocho
innotuisse et ipsum quominus responderet legitime
impeditum non fuisse, eum statirn a paroecia amoveat,
quin teneatur praescripto can. 2154.
§ 3. Quod si non constet de superius indicatis
duobus adiunctis, Ordinarius opportune provideat aut
iterando invitationem ad renuntiandum aut proro-
gando tempus utile ad respondendum.
GoogI
Original from
UNIVERSITY OF WISCONSIN
42o ECCLESIASTICAL PROCEDURE
After setting forth the reasons which may advise a
removal, the Ordinary is told how to proceed. First he
shall invite the delinquent pastor to resign. This invi-
tation may produce no effect, because the pastor does
not answer, or it may produce the desired effect, i.e., cause
him to resign.
If the pastor refuses to resign and offers reasons for
his refusal, the way is opened to legal procedure proper,
as seen in can. 2151 ff.
I. Whenever the Ordinary is convinced that a pastor
is guilty of mismanagement for one of the reasons stated
in the preceding canon, then he himself, or his Vicar-
General,16 must proceed as follows:
a ) He must call in two of the examiners, either synodal
or pro-synodal, and hear their advice, though he is not
bound by their consent (can. 105, n. i.°).
b) With these two examiners he should discuss the
truth and seriousness of the charges made against the
pastor, because discussion may remove doubts and clear
up the case.
c) After the discussion he shall invite the pastor to
resign. This invitation may be made orally or in writ-
ing, but should always be accompanied by the indication
of the term within which the resignation is expected.
Although our text does not prescribe that the oral invita-
tion be made in the presence of the chancellor, or of some
other diocesan official, or of two witnesses, y*t, since it
amounts to an admonition, it seems to us that can. 2143,
§ 1, 2 must be applied.11 A written invitation to resign
must be sent by registered mail.
d) This invitation may be omitted only in case the
-
needed a special mandate; but the
lfl According to the " Maxima IT '* Maxima cura," can. i o, I I,
cura," can. 32, the Viemr General strictly required it
Code omits this condition.
oogle
% ,|,, Original fro rn
UNIVERSITY OF WISCONSIN
"
CANONS 2148-2149 421
pastor suffers from a mental defect which in the
" Maxima cura " (can. 9) is simply styled u insanity."
But the term vitium mentis is somewhat broader than
insanity. It may include habitual melancholia (this is
now regarded by scientists as a form of insanity) and even
the so-called determinatio ad unum, which is a mental
attitude rendering the person incapable of reasoning in
any other way than along the lines of a certain pre-
conceived idea. However we believe that the legislator
means insanity in all its species. Of course the Ordinary
may not presume that such a condition exists, but must
have definite proof, either in the form of a medical cer-
tificate or from trustworthy witnesses.
e) In order to render not only the invitation itself,
but all the following acts, juridically valid, the Ordinary
is bound to state in the invitation the reason that prompted
him to issue the invitation and the evidence which sup-
ports the reason.
The "Maxima cura" contains some more elaborate
instructions, which, though omitted in our text, do not
militate against it, and may, therefore, find a place here ;
with due regard to the fact, however, that they do not
affect the validity of the proceedings. If the crime that
prompted the invitation is secret (crimen occultum) , and
the invitation is in writing, the reason for the invitation is
to be stated only in general terms,18 for instance (can.
2147, §2)» ^at the respective pastor has exercised the
sacred ministry less effectively and usefully than was ex-
pected. Then when the pastor appears personally, the
specific reason and the evidence may be communicated
to him orally, in the presence of one examiner, who at
^s The reason for thii general pastor • from devising excuses or de-
statement is to keep the crime se- itroying evidence; Hilling. '• ?-, P-
cret and to prevent the impeached 23.
>Ic
% ,| , Origi rial fro m
UNIVERSITY OF WISCONSIN
■
422 ECCLESIASTICAL PROCEDURE
the same time acts as secretary, ' and takes down the
minutes. In communicating the evidence orally, great
care must be taken to keep secret the names of the ac-
cusers and witnesses, especially if these persons demand
secrecy, or if circumstances are such that they have reason
to expect vexations. Papers referring to the crime
should not be communicated in writing whenever their
communication is apt to cause scandal to the faithful,
or breed quarrels and contentions because other persons
are involved.
But even the oral communication of such papers must
be made very cautiously if inconvenience is to be feared.
As may be seen, these observations of the "Maxima
Cura" are intended to safeguard the good name of others
and to avoid unnecessary publicity.
2. If the pastor ignores the bishop's invitation to re-
sign within the appointed time," i.e., if he neither resigns,
nor asks for delay or dilatory terms, nor rebuts the rea-
sons alleged, — what is the Ordinary to do? He must
make two inquiries, one touching the juridical formalities,
and the other concerning a mere fact ; to wit, he must
inquire whether, and be morally certain that,
a ) The invitation to resign has been properly made and
reached the pastor and that
b) The pastor had no lawful excuse for not answer-
ing the same.
As to a), it is evident that if the oral invitation was
made according to can. 2143, § 1, 2, there is no difficulty
to prove the juridical fact and formality; the same is
true if it was made in writing, i.e., by registered letter
with return receipt. Therefore we believe that what was
said above, under can. 2148, should be adhered to.
id " Maxima euro," can. 10, | 4, grants ten days; but the Code leave*
it Co the Ordinary to fix the time.
►ogle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 2150 423
a
As to b), a legitimate excuse for not answering might
be advanced, for instance, absence, sickness, or ignorance
of the invitation. However, the last-named reason could
hardly be accepted in case of a registered letter.10
Neither should the bishop be too hasty in refusing plausi-
ble excuses, for accidents sometimes happen over which
individuals have no control. But if the bishop is really
satisfied in conscience that the invitation was duly made
and reached its destiny, and that no legitimate excuse was
offered for not answering it, he may immediately proceed
to remove the pastor, and if he does so (can. 2152, § 2),
should inform him of his decision. The pastor on his
part, because of his contempt or stubbornness, forfeits the
prerogatives granted in can. 1254.
If, on the other hand, either the formal invitation was
defective, or the pastor advanced a lawful excuse for not
answering it, the Ordinary shall make opportune provi-
sions. These consist in either repeating the invitation
to resign or prolonging the time for answering the charges
or reasons given in the invitation, either orally or in writ-
ing.
RESIGNATION ACCEPTED
B
Can. 21 to
• "*
§ 1. Si parochus paroeciae rcnuntiet, Ordioarius
paroeciam ex renuntiatione vacantem declaret.
§ a. Potest vero parochus, loco causae ab Ordinario
invocatae, aliam ad renuntiandum afferre sibi minus
molcstam vel minus gravern, dummodo vera et
honesta sit, ex. gr., ut obsequatur Ordinarii desideriis.
§3. Renuntiatio fieri potest non solum pure et
to Though it mar happen that in- of the pastor signed the receipt
tereited personi ia the household and kept or destroyed the letter.
►ogle
v ,|Y> Original from
UNIVERSITY OF WISCONSIN
Q
",
424 ECCLESIASTICAL PROCEDURE
simpliciter, sed etiam sub condition^ dummodo haec
ab Ordinario legitime acceptari possit et reapse ac-
ceptetur, et firmo praescripto can. 186.
-
If the pastor resigns his parish, the Ordinary shall
declare the same vacant by resignation. This fact must
be expressly mentioned because of the formalities re-
quired for the bestowal of the vacant parish on another,
according to can. 184-187, and also on account of can.
1485. Formerly no office or benefice made vacant by
resignation could be bestowed on relations of the resig-
nans; " but the Code is silent on this condition.
A pastor who is asked to resign, may do so for an-
other reason than that set forth by the Ordinary; this
reason may be less offensive or irksome or aggravating,
but it must be true and honest. Such a reason is, " to
obey the wishes of the Ordinary." He may also simply
say: "For reasons of my own," or "For the welfare
of the parish," etc.
The resignation may bt made purely and simply, or
conditionally, provided the Ordinary is entitied to accept,
and does accept, the conditions. A resignation is pure
and simple if no simoniacal or other condition enters into
the transaction; conditional, if a clause is attached in the
act of resignation. Such a condition would be present
if the pastor resigned in favor of a certain priest, which
is inadmissible.** Neither can any resignation be ad-
mitted on the condition of regressus, ingressus, or
aggressus (see can. i486). Hence there remains only
exchange {causa permutationis) . A resignation condi-
tioned upon this clause is called resignatio sub pensions.
Both kinds are tacitly admitted in this case by reason
21 Werai, liii Deer it., II, n. 499- . tit 9, Decretal . v. §., Stiffen-
22 See the commentators on lib. stael, Weraz, J. c, II, n. 493 ff.
oogle
(^ ^ s ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 2151-2152 425
of can. 2154 and under the conditions set forth in this
title. What other conditions might enter it is hard to
say, except they be temporary, for instance, to leave the
pastor in his place for a certain time. But the Code has
touched even this possibility in can. 2156.
Resignation, lastly, to be valid, must be made accord-
ing to can. 186, i.e., either in writing or orally, in the
presence of two witnesses, and be accepted by the Ordi-
nary.
•-'
rebuttal of the pastor
Can. 2151
Parochus, si oppugnare velit causam adductam in
invitatione, potest dilationem ad probationes af-
ferendas postularc, quarn Ordinarius pro suo prudenti
arbitrio conccdere potest, dummodo ne sit cessura in
s detrimentum animarum.
r
The pastor may oppose the reason alleged in the invi-
tation if he is convinced that it has no foundation except
gossip. In that case he is entitled to demand dilatory
terms — the extent of which is not determined in the
Code 2* — in order to prepare his defence. Whether and
how long delay may be granted depends on the Ordi-
nary's judgment, which, however, should be guided not
only by charity towards the pastor, but also and chiefly
by consideration for the bonum commune.
r
-
proceeding of the ordinary
Can. 2152
§ 1. Kationes a parocho contra invitationem ad-
ductas Ordinarius, ut valide agatv auditis iisdem
28 " M axima rwr«," cmn. iar allowed from 10 to ao days.
>ogle
/~* ^ v -%\s* Originalfrorn
UNIVERSITY OF WISCONSIN
N
■
426 ECCLESIASTICAL PROCEDURE
cxaminatoribus de quibus in can. 2146, § i, perpendat,
approbet aut reiiciat.
§ 2. Decisio, sivc affirmativa fucrit sivc negativa,
parocho significetur decreto.
Can. 2153
§ 1. Contra dccretum amotionis potest parocbus
intra decern dies recursion interponere apud eundem
Ordinariura, qui, ne invalide agat, debet, auditis
duobus parochis consultoribus, novas allegationes ab
eodem parocho intra decern dies ab interposito re-
cursu producendas, simul cum rationibus primo
allatis, examinare, approbare aut reiicere.
§ a. Parochus potest eos testes inducere ad normam
can. 2145, § 1, quos prima vice se inducere non
potuisse probaverit.
§3. Decisio decreto nota parocho fiat.
Can. 2154
§ 1. Amoto parocho Ordinarius, examinatoribus vel
parochis consultoribus, qui partem habuerunt in
amotions decernenda, in consilium adscitis, pro viribus
consulat sive translatione ad aliam paroeciam vel as-
signatione alius officii aut bcncficii, si ad hacc idoneua
sit, sivc pensione, prout casus ferat et adiuncta per-
mittant.
§ 2. Ceteris paribus, in provisione favendum magis
renuntianti quam amoto.
1. The pastor then shall duly prepare his defence, for
which purpose he may produce two or three witnesses,
according to can. 2145, and also papers referring to the
oogle
v ,|r> Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 2152-2154 427
case. Here, of course, much depends on the reason that
prompted the invitation. In case of mental or bodily in-
firmity, the physician's verdict should be procured under
affidavit. Concerning the hatred of the people, we be-
lieve local inspection, either by the Ordinary or by the
examiners, would be the proper way, otherwise the pastor
or bishop might have to call the whole parish. As to
the loss of esteem, the men who testify to it must be
examined as to their character, and it is also necessary
to prove the approximate number of those in whose eyes
the pastor's reputation has greatly suffered. In case of
an occult or secret crime, the main investigation should
turn about the probability of divulgation and the means
of proving it. In that case a clever and conscientious
lawyer and a detective might render good services. Fi-
nally, in case of mal-administration, the account books
may be submitted to an auditor assisted by the trustees
and the diocesan board. We add that, if the matter is
of a delicate nature, little writing should be done and
the examination carried on with as few witnesses as
possible.
2. After the defence has been produced, or if it is
made orally, during the hearing, the Ordinary, for valid
procedure, is bound to call the two examiners, in order
to hear their advice. As said above, the examiners should,
or at least may, be present when the oral defence is
made. After that the pastor, who may be represented
by proxy," shall retire, in order to permit the Ordinary
and the two examiners to discuss the case freely.
The decision is left entirely to the Ordinary, who is
not bound by the consent, much less, of course, by the
advice, of the examiners. We draw special attention to
24 " Maxim* cura," can. 18, 2, ad- be a priest approved by the bishop
mits proxy, who, however, must for that purpose.
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
428 ECCLESIASTICAL PROCEDURE
this fact because the "Maxima eura" (can. 19) requires
secret balloting, which is no longer needed now.
The result of the bishop's decision may be either posi-
tive or negative, i.e., he may either accept the defence of
the pastor as sufficient to clear him or he may reject it
as insufficient In either case the decision must be com-
municated to the pastor in the form of a decree. The
text may be usefully complemented from can. 20 f. of
the "Maxima Cura," which says that if the decree is
negative, the reason for removal may be stated in gen-
eral terms, as, e.g., the welfare of souls. Special or par-
ticular reasons may be alleged if the Ordinary deems it
expedient and feasible; but mention must be made of
the invitation tendered to resign, of the counterplea
of the pastor, and of the vote of the examiners. How-
ever, this last addition must now be formulated differ-
ently, for instance, having heard the advice of two ex-
aminers according to can. 2152, § I. An affimative de-
cree, i.e., one admitting the defence of the pastor, must
also be communicated, but in this case the Ordinary should
not omit to add wholesome admonitions and precepts,
which may serve for future procedure.
3. The next stage in the procedure is a possible recourse
on the part of the pastor. Note the term recursus, which
is not equivalent to appeal, and consequently does not
suspend the effect of the decree. The proceeding is as
follows :
c
a) The recourse against removal must be lodged
within ten days from the date of receiving notice of the
decree
b) The recourse is to be presented to the same Ordinary
who issued the decree of removal. If he should have
gone out of office in the meantime, either by death, resig-
nation or transfer, etc., the recourse may be sent to the
loi >gle
f~* ^ v ,|r. Original fro m
UNIVERSITY OF WISCONSIN
CANONS 2152-2154 429
vicar-capitular (administrator). However, we believe
that in this case the equitable time should be suspended
until the new Ordinary's arrival, unless the scandal is too
.great.28
c) Then the Ordinary grants the pastor another ten
days, within which he may produce his new defence.
Thus the pastor has twenty days in all from the date
when he receives the notice of his removal, in order to
prepare his second defence.
d) The Ordinary must call in two pastors who are
consultors,** in order to proceed validly in the examina-
tion of the new allegations. These new allegations may
be accompanied by new witnesses, whom the pastor could
not produce at the first trial. But the pastor must prove
that the new witnesses could not be brought to the wit-
ness-stand before. To prove that, it would be sufficient
for the witnesses to affirm it, because they are under
oath according to can. 2145.
Together with these two consultors the Ordinary shall
discuss the case, as he did before with the examiners.
However, in order fully to enlighten the consultors, the
allegations and depositions made in the first pleading in
presence of the examiners must again be examined. The
consultors have no decisive vote.
e) Then comes the decision, in the form of a decree,
wherein the presence of the consultors together with the
-reasons in general (as above) is mentioned.
f) Finally this decree must be communicated to the
pastor.
3. Supposing now that the decree insisted on removal
and was duly notified to the pastor, it appears but logical
that the parish is declared vacant, at least de iure; al-
25 Our view is based on can. 436: w Concerning theac, tee can.
sede vacant* nihil irnovct*r. j8j ff.
>Ie
v ,1,., Original from
UNIVERSITY OF WISCONSIN
430 ECCLESIASTICAL PROCEDURE
though no declaration to that effect is required by the
Code. But there can be no doubt that from the moment
the pastor has received the decree of removal he is no
longer pastor. The consequences are too serious not to
be mentioned. The parochial rights, the ordinary juris-
diction for hearing confessions, the claim to the revenues
cease from tfie moment of removal.27 Therefore, in
order to remedy these inconveniences, the decree of re-
moval should contain a clause to the effect that the pastor
is left in the enjoyment of all his pastoral rights until
the new pastor or temporary vicar has arrived, or until
further notice. In case of doubt or probable error, can.
209 may be applied. This premised, after the removal
has been decreed and the decree communicated, the Or-
dinary must proceed as follows:
a) If the invitation was accepted or obeyed after the
first plea for defence, without recourse, the examiners
must be called to a meeting, the purpose of which is to
provide for the removed pastor;
b) If recourse was had, and a second defence is there-
fore required, the consultors must be called in for the
same purpose;
c) The debate concerns the mode of providing for the
removed pastor, either by transfer to another parish, or
by appointment to another office or benefice, provided he
is fit for any of these places, or by a pension. The
correct mode must be determined by the nature of the
case and the circumstances.
d) All other things being equal, one who has resigned
is to be favored more than one who was removed.
The Code leaves it to the prudent judgment of the
Ordinary how to provide for the removed pastor. Yet,
-
<
27 See can. 46.2 f.; can. 873, 9 >' can. 1095 can hardly be applied
here.
p
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
CANONS 2152^2154 431
a
though not juridically, at least morally, he is bound by
various conditions. For besides the advice of the ex-
aminers or consultors he should follow this dictate : " pro
viribus consulat" as far as lies in his power, he should
make provision for the pastor who has been removed.
He must take into consideration the fitness of the priest
for the respective place (parish, office, benefice). Fur-
thermore he should weigh the case decided, because the
five reasons advanced in can. 2147 are not all of the
same nature (prout casus ferat). Besides, the circum-
stances of the parish, of the pastor (his health, good
name, etc.), and of the diocese should also be taken
into account (prout adiuncta permittant). After having
weighed all these conditions, if there are several compet-
itors for a parish, office or benefice, one who has re-
signed is to be preferred to one who was removed:
ceteris paribus, or, as the "Maxima cura" (can. 257,
§ 3) says, * in pari conditione." For if the resignee is
not fit for the place, the Ordinary cannot conscientiously
assign it to him.
The next question that arises is, whether the bishop is
bound to give the resignee a better parish than the one
he has resigned. But what is a better parish? The
former law considered a parish with a richer income
(pinguiores reditus) a better parish. The "Maxima
cura " (can. 27, § 1 ) simply distinguishes between par-
ishes of inferior and superior rank or order, — which ad-
mits of a wide interpretation and the play of personal
tastes. For to some a small city parish seems preferable
to a large country parish. Therefore, with the exception
of a cathedral or collegiate parish, we believe that the
old view of a richer income is still a safe index of superior
rank. Besides, the irremovable character should be con-
sidered. This premised, the answer to the foregoing
Q
►ogle
% ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
43* ECCLESIASTICAL PROCEDURE
%
question is that a pastor who has resigned voluntarily
for reasons which he himself has not brought about (for
instance, on account of hatred), should be promoted to
a better parish, or one of equal rank and income, pro-
vided he is fit for it, and the place is open, or the Or-
dinary can give it to him without inconvenience. An-
other question connected with this canon is this: Has a
resigned or removed pastor a right to demand a pension
instead of accepting another parish, or office, or benefice?
in other words : Is he entitled to choose between a par-
ish, office, or pension? Neither the wording of the
"Maxima cura" " nor the text of the Code grants such
a right. Of course, if the bishop leaves him the choice,
the pastor is entitled to choose what he pleases. But
there are very few, if any, dioceses in our country which
could furnish pensions sufficient to provide for all cases
of resignation or removal. If, then, the pastor refuses
another place, offered to him by the Ordinary, the latter
is not obliged to provide him with a pension.
Concerning pensions attention must be called to can.
1429, which is not affected by canon 2154.
1-
after removal
Can. 2155
Negotium novae provisionis parochi arr.oti potest
Ordinarius sive ipso amotionis decreto sive postea,
quamprimum tamen, expedire.
3 >
Can. 2156
-
§ I. Sacerdos a paroecia amotus debet quam primum
liberam relinquere paroecialem domum, et omnia quae
28ThuB Hilling, /. c, p. ja.
§le
% ,1,., Original from
UNIVERSITY OF WISCONSIN
p
CANONS 2155-2156 433
ad paroeciam pertinent novo parocho vel oeconomo ab
Ordinario interim deputato tradere.
§ a. Si autem de infirmo agatur qui e paroeciali
domo sine incommodo nequit alio transferri, Ordi-
narius eidem relinquat eius usum etiam exclusivum,
eadem necessitate durante.
Provision for the removed pastor may be made in the
decree of removal itself or, at least, should be made as
soon as possible thereafter. The " Maxima cura " (can.
28) permitted insinuation of the provision to be made in
the invitation to resign, and pending the case of removal.
These two points are not mentioned in the Code. But
one thing stated in said decree, viz., that the question of
removal and the question of provision should not be mixed
up, in order not to impair the welfare of souls, applies
also to the decree of removal. And here again attention
must be drawn to the necessity of mentioning the dura-
tion of parochial rights and duties.
After removal, what has the removed pastor to do?
He must, as soon as possible, leave the parochial resi-
dence and hand all the belongings of the parish to the
new pastor or administrator pro tempore, appointed by
the Ordinary. Omnia quae ad paroeciam Pertinent sig-
nines all the parish books, all the account books, and all
the utensils or sacra suppellex w belonging to the parish.
Concerning the furniture of the residence this is generally
provided by the parish and therefore must be left in the
residence. However, if there should be a piece of fam-
ily furniture to which the pastor has a claim, he may take
it along; also the books which he bought out of his
patrimony or salary.
« Chalice* or veatraenta which tonal motives, intuitu persomu, he-
were given to the pastor for per- long to him and may be taken away.
CoogI
Original from
UNIVERSITY OF WISCONSIN
434 ECCLESIASTICAL PROCEDURE
Next the Code provides for the case of a sick priest
who can not be lodged elsewhere. This evidently sup-
poses either a bedfast or crippled or paralytic person,
who cannot conveniently be transported to another place.
If he can travel, the favor extended here cannot be
claimed. This favor consists in that the Ordinary should
leave the sick priest in the (if necessary exclusive) en-
joyment of the pastoral residence as long as need requires.
Of course in that case the new pastor or administrator
would have to look out for another residence within
the parish limits, unless the two priests would agree to
live peacefully in the parochial residence.
If a pastor who has been removed and told to leave
the pastoral residence, obstructs the execution of the
bishop's decree by having recourse to a higher ecclesias-
tical court, he must remember that this recourse has only
devolutive, not suspensive, force,80 and that, consequently,
he must leave his residence. If the pastor should be
tempted directly or indirectly to impede the execution of
the episcopal decree by having recourse to the civil power,
he should read can. 2334, which renders him liable to ex-
communication specially reserved to the Apostolic See.
Besides, our civil law holds that a clergyman is entitled
to the possession of a parsonage only as long as his con-
nection with the congregation continues, and that one who
is deposed (removed) but nevertheless stays in posses-
sion of the parsonage, becomes liable for rent.*1
EXCURSUS ON DISABLED PRIESTS' FUNDS
The question of making provision for priests in case
of removal is intimately connected with the general prob-
lem of raising funds for the support of disabled priests.
30 See Can. aiss, as compared 81 Zcllmano. Amtricmn C*f&
-with can. i88a, f i. Ch*rch Law, 1917, p. 44a.
>Ic
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
DISABLED PRIESTS' FUNDS
435
It is not an easy task to solve, and the Code makes no
attempt to solve it; but it is worth while to compare some
texts which bear on the subject. For the rest we refer
to other sources."
I. It must be remembered that every clergyman is
fncardinated in a diocese, to which he belongs and to
which he is (can. m) under obligation. A clergyman
receives his support, not precisely in virtue of the office he
holds or the services he renders to the diocese at large,
but for the attention he gives to a determined function,
or pastoral office, or benefice. This is expressed by
the well-known adage: " Beneficium propter oMcium."
From this it follows that the bishop cannot be held re-
sponsible for the salary or support of a pastor. At-
tempts made to that effect have met with no favor in
our civil courts.38 And if the bishop cannot be held-
S2 See Eccl. Review, Vols. XIX,
«4S ff-. XXIII, 458 ff.. XXIV. 20 ff.,
339 ff-
38 K. Zollmann, American Civil
Church Lav, 191 7, p. 350, rays:
" It hmi been held that the relation
between bishop and priest is not
that of hirer and hired, but rather
that of superior and inferior agents
of the same church. The bishop is
the priest's superior and according
to the established order of things
in the economy of church govern-
ment regulating the degrees of sub-
ordination and the methods of ad-
ministration, it is his province to
designate the place for the priest
to exercise his functions and to
prescribe, under certain limitations,
the rules for his guidance and con*
trol. To hold the bishop person-
ally liable at law for the priest's
Services would be as unjust as hold-
ing the general agent of a railroad
company liable for the pay of the
railroad employees engaged by him
in the course of his agency. Men
are constantly going into positions
under appointments by superior
agents who are universally under-
stood not to assume any personal
liability by such appointment. Since
there is no contract relation be-
tween priest and bishop after the
priest has been assigned to a charge,
there can be none before such as-
signment. Whatever duty a bishop
may have to appoint a priest to
some charge is a religious duty
only. For its performance or non-
performance he is answerable only
»n foro conjcientiae or to his eccle-
siastical superior. It is a matter in
which the ecclesiastical discretion
of the biihop is, and mutt be the
determining factor. In the exercise
of that discretion be is answerable
only to the laws of the church. If
for a breach of this clearly eccle-
siastical duty there should be a
remedy by law, it must follow that
a man may have an action for the
oogle
Original fro m
UNIVERSITY OF WISCONSIN
436
ECCLESIASTICAL PROCEDURE
Q
N
■
responsible for the salary of a working priest neither
can he be obliged to provide personally for relief or sup
port in case of disability.
2. How then may funds be raised to support disabled
priests? On the one hand there is the universal convic-
tion, emphatically expressed in the well known decretal
of Innocent III, that affliction is not to be added to afflic-
tion but rather pity to be shown.** The tender solicitude
of the Church has always been shown in the succor
granted to the helpless and the poor. How much more
it should be applied to the " portio Domini " nee ds no
proof. Where the cooperation of the State could be in-
voked, the difficulties were to a great extent solved by
pensions. But where Church and State are completely
separated, the ecclesiastical authorities had necessarily
to call upon the clergy and the faithful to mitigate the
lot of helpless priests. The Third Plenary Council
of Baltimore enacted that each bishop should establish
a fund for the maintenance of indigent priests under
his jurisdiction. This fund was to be raised either
by a tax levied upon the parishes, or, if these were al-
rcfusal of * clergyman to baptirc
him. If there is a contract duty on
the part of the bishop to assign a
priest to ft charge, it must follow
that there ii a similar obligation on
the part of the priest to accept such
charge. No one will contend that
a bishop baa any such civil right.
The priest, so far as the courts are
concerned, can lay down his office
and its duties at pleasure. For do-
ing so he can be visited only with
ecclesiastical censure and such pun-
ishment as the church canons pre-
scribe. The priest, so far as the
courts are concerned, is thui com-
pletely without remedy as against
his bishop. The biibop may appoint
him or not in his discretion. He
may. after he has appointed him,
assign him to another charge. He
may even enjoin him from exercis-
ing priestly functions and remove
him absolutely without trial, and
the courts will be in no position to
afford him any relief, Since he has
no contract with his congregation
and with his bishop, the question
arises whether he has any remedy
against the church at a whole.
Even this must be answered in
the negative. The church, even if
it is capable of being sued, has
assumed no legal liability for his
support."
«C. 5, X, III, 6.
GoogI
e
Original from
UNIVERSITY OF WISCONSIN
a
N
"■
DISABLED PRIESTS1 FUNDS 43?
ready too heavily taxed, on the clergy, who were to con-
tribute pro rata from their personal income. A third
method also was suggested, viz., that the clergy organize
themselves into a mutual benefit society, administered
by the members themselves, with the bishop as ex officio
president.88 The two first methods may work well in
larger dioceses, but smaller dioceses are hardly able to
raise sufficient funds for the purpose." There a pro-
vincial system might supply the shortcomings of the
individual dioceses. More efficient, and, we believe more
pleasing to sensitive priests and more businesslike, is the
third method suggested by the Council, which entitles each
priest to a share in the general fund in case of disability,
regardless of his personal revenues. The only drawback
we can see in this system consists in the danger of un-
just distribution and of fostering an indolent, and per-
haps insolent, spirit among the clergy. However, the
constitutions or by-laws could be framed in such a way
as to counteract these evils.
3. The next question is: What does the Code say in
this matter? We could find only three canons that bear
on the subject. They are 1429, 1505, and 2154.
Can. 1429, as explained in Vol. VI, permits the Or-
dinary to impose a pension upon parochial benefices or
parishes, in favor of the pastor or assistants of the same.
The amount of this pension is not to exceed one-third
of the net revenues of the parish.
Canon 2154 permits a pension to be paid to a removed
or resigned pastor.
Canon 1505 empowers the Ordinary to impose a
charitable subsidy on all beneficiaries, secular as well re-
ligious, provided the needs of the diocese impel him
35 Acta ft Dtcrrtt Cone. Pl$%. Bolt. III. n. 71.
S0 Am. Eccl. Rtv., XXIII, 471-
] Original from
OOglC UNIVERSITY QFWI5C0NSIN
N
■
438 ECCLESIASTICAL PROCEDURE
thereto and the taxation be extraordinary and moderate.
Of these texts two only refer to pastors and curates
of parishes, because the pension is intended only for these.
A pastor emeritus or a vicarius emeritus may be benefited
by such a pension, but regular funds destined for all
disabled priests cannot be construed into these two canons.
Can. 1505 is broader because the condition " dioecesis
necessitate impeliente" undoubtedly exists when there is
question of providing for needy priests. But the exactio
is to be only extraordinaria. This would seem to exclude
regular yearly contributions. The most a private inter-
preter could admit is that a contribution could be de-
manded whenever the diocesan treasury is at a very low
ebb. When this condition exists, all the beneficiaries,
but not the parishes, may be taxed, and religious who
hold parishes in the diocese would have to contribute their
share to this fund.
4. This observation calls for another. Suppose the
case of a clerical aid society, of the type found in some
dioceses. Is the Ordinary or the Board of such a So-
ciety entitled to tax religious entrusted with congrega-
tions in the diocese? We hardly believe so, for, first of
all, whatever is not connected with the care of souls is
withdrawn from the episcopal jurisdiction,87 and conse-
quently the bishop is not entitled to exact contributions
which have nothing to do with the congregation itself.
Secondly, it does not appear just that religious, who are
taken care of by their respective communities in case
of disability, should be forced to contribute to a fund
from which they derive no benefit. This reason, of
course, holds only if the religious claim no subsidy from
the aid society in case of sickness or other impediment.
5. Another question is, whether the bishop is entitled
37 Cfr. can. 533, g 1, n. 4; can. 630, 5 1, 3.
jle
j , , Original from
UNIVERSITY OF WISCONSIN
DISABLED PRIESTS' FUNDS 439
to levy a contribution on the personal income of (secular)
priests under his jurisdiction to meet the expenses of a
clerical aid fund? The Third Plenary Council of Balti-
more, in the text already quoted (n. 7*)» not only per-
mits, but obliges Ordinaries to establish a fund for the
-
support of indigent priests. The Code, while it does not
favor extraordinary charitable subsidies except moderately
and extraordinarily, does not prohibit the institution of
benevolent societies. Since the Code does not explicitly
provide for disabled priests — a canon to that effect
would have been opportune — it is certainly left to the
Ordinaries to supply this defect ; because the Ordinaries
are allowed to legislate within the range of common law,
except where they are explicitly prohibited." Hence the
right of making laws for the purpose of raising clerical
funds and distributing them justly cannot be denied to the
Ordinaries. And if this is true of such laws in general,
it must also apply to by-laws or constitutions that may
be necessary for the just or equitable administration of
these funds. Thus diocesan statutes concerning prompt
payment, or the prorating of contributions, or conditions
for receiving aid, are entirely justifiable.80 The diocesan
statutes should contain the by-laws of such aid societies,
in order that they may become diocesan laws. The by-
laws themselves should clearly set forth when and under
what conditions a disabled priest is entitled to draw on
the diocesan fund or the Clerical Aid Society. Priests
who have means of their own from patrimonial or other
revenues should be excluded from the privilege of re-
ceiving such aid, which is destined for those unable to
procure a decent support.40
SSBened. XIV, Dt Syn. Dion., dioceses; see Am. Ecci. Rev., XXIV,
XIII, 1, 3; Am. Eccl. Rev., XXIV, p. »gi.t p. 339 ff.
36. 40 Concerning culpably — ex He-
8» Such rtatutes exist in various licto — disabled priests we refer to
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
440 ECCLESIASTICAL PROCEDURE
6. A last question: May the Ordinary command the
congregations or parishes of his diocese to contribute to
the clerical aid fund? He may do this in a friendly,
but not in a domineering or threatening way. The rea-
son lies in can. 1505 f. and can. 1186 and 1297. If the
legislator would have the Ordinaries use their power in
favor of the repairs required for the cathedral and other
churches by persuasion rather than coercion, it is cer-
tainly not too much to argue a pari. The same rule of
mitigation and moderation occurs in can. 1297 with re-
gard to the sacra utensilia. Of course, we do not deny
that Ordinaries may have collections taken up at irregular
intervals for (he purposes of a clerical relief or aid society.
In conclusion attention may be drawn to life insurance
for the clergy, which may be handled, not only by re-
sponsible private companies, but also by provincial or
interprovincial clerical companies, under the supervision
of the ecclesiastical authorities.
can. 2303. I a. The legislator there hire to bee;, to the disgrace of
tells the Ordinary that he should the clerical state. Bat the obligi-
provide for an indigent, though de- tion is merely one ex Hhilo can'.atis.
posed, clergyman, lest he should
Cr*t\n\& Original from
i V.iOOglL UNIVERSITY 0FWI5C0NSIN
■
TITLE XXVIII
PROCEDURE IN REMOVING REMOVABLE
j PASTORS
Can. 2157
§ 1. Parochus quoque amovibilis a sua paroecia
amoveh potest ex iusta et gravi causa ad normam can.
2147.
§ 2. Ad parochos religiosos quod attinet, servetur
praescriptuzn can. 454, § 5.
Can. 2158
Si Ordinarius aliquant ex his causis adesse existi-
maverit, parochum paterne moneat atque hortetur ut
paroeciae renuntiet, causam indicans, quae paroeciale
ipsius ministerium lidelibus noxium aut saltern ineffi-
cax reddit
Can. 2159
Firmo praescripto can. 2149, si parochus renuat,
rationcs in scriptis reddat, quas Ordinarius, ut valide
procedat, pcrpendere debet una cum duobus exarnina-
toribus.
Can. 2160
Si, auditis examinatoribus, Ordinarius allatas
rationes legitimas non iudicaverit, patemas iteret
hortationes ad parochum, comminata amotione, si intra
441
*Ie
k ^|,, Original fro m
UNIVERSITY OF WISCONSIN
442 ECCLESIASTICAL PROCEDURE
congruum definitum tempus paroeciam spontc non
dimittat.
Can. 2161
§ 1. Expleto pracfinito tempore, quod pro sua
pruclcntia prorogare potest, Ordinarius decretum
amotionis emittat.
§ 2. Parocho autcm renuntianti aut amoto providere
tenetur ad normam can. 2x54-2156.
The procedure for removing a removable pastor has
been modified. The modification consists in the provision
that no formal invitation to resign is required and no legal
rebuttal or recourse against the decree of removal is ad-
missible. Hence the consultors need not be called in, but
the cooperation of the examiners is sufficient.
1. The removal of a removable no less than of an irre-
movable pastor requires a just and grave cause, i.e., one
of those stated in can. 2147.
If a religious pastor is to be removed, the procedure
is very simple. See can. 454, § 5, where it is said that
pastors belonging to a religious community may be re-
moved ad libitum either by the local Ordinary or by the
religious superior. The one has only to notify the other
of the removal, without stating the reasons. Recourse
to the Holy See is admissible, but with devolutive effect
only.1
2. If the local Ordinary is convinced that one of the
reasons stated under can. 2147 can be advanced against
a removable pastor, he shall paternally warn and exhort
the latter to resign his parish, and state the reason why
his pastoral ministry has become detrimental or at least
useless. No special formality is required for this ad-
l Cfr. Vol. II, p. Sao f. of thfi Commentary.
p
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
■ ■■
-'
■
pi
-
CANONS 2157-2161 443
monition, which is expressly styled paternal, i.e., not can-
onical. But a certain and fixed term must be given the
pastor for answering the Ordinary's demand.
If the warning is given in writing, it should be sent
by registered mail* because can. 2149 also applies in this
case.
3. // the pastor does not act upon being thus warned,
he may be removed at once without the benefit granted by
can. 2154. If he answers negatively, i.e., if he refuses
to resign, he must state the reasons for his refusal in
writing. The Ordinary shall then discuss these reasons
with two examiners. This discussion is required for
valid procedure.
4. If the Ordinary, after having heard the advice of the
examiners — which he is not bound to follow2 — deems
the reasons brought against the removal groundless or
unlawful, he shall repeat the exhortation to resign under
threat of involuntary removal in case the pastor refuses
to leave the parish within the time appointed.
5. After the expiration of this term (which may, how-
ever, according to the prudent judgment of the Ordinary,
be prolonged) the Ordinary shall issue the decree of re-
moval. This, of course, must be intimated to the pastor.
This is the last phase and requires no recourse and no
calling in of the consultors. But provision is to be made
just as for irremovable pastors, and therefore canons
2 1 54-2 1 56 apply to this case.
iSn can. 103.
jle
£ " ^ v -An Original from
UNIVERSITY OF WISCONSIN
■
TITLE XXIX
PROCEDURE IN THE TRANSFER OF PASTORS
Can. 2162
c
Si bonum animarum postulet at parochus a sua,
quam utiliter regit, ad aliam paroeciam traniferatur,
Ordinarius cidcm translationem proponat ac suadcat
ut eidem pro Dei atque animarum amore consentiat.
Can. 2163
§1. Parochum inamovibilem Ordinarius invitum
transfcrrc ncquit, nisi speciales facultates a Sede
Apostolica obtinuerit.
§ a. Parochus vero amovibilis, si paroecia ad quam
non sit ordinis nimio inferioris, etiam invitus tranaferri
potest, servatis tamcn praescriptis canonum qui
sequuntur.
Can. 2164
Si parochus consilio ac suasionibus Ordinarii non
obsequatur, rationcs in scriptis exponat.
Can. 2165
Ordinarius, si, non obstantibus allatis causis, iudicet
a proposito non esse reccdendum, debet, ut valide agat,
super eisdem causis audire duos parocbos consultores,
et cum eisdem perpendere adiuncta in quibus versatur
turn paroecia a qua, turn paroecia ad quam, et rationes
quae translationis utilitatem aut necessitatem suadent
444
.'le
( * -» ^ ils* Original fro m
UNIVERSITY OF WISCONSIN
■
pi
CANONS 2162-2167 445
Can. 2166
Si, auditis parochis, Ordinarius translationem
peragendam censeat, paternas exhortationes itcrct ut
parochus voluntati sui Superioris morem gerat.
Can. 2167
§ 1. His peractis, si parochus adhuc renuat tt
Ordinarius adhuc putet translationem esse facicndam,
parocho praecipiat ut intra certum tempus ad novaro
se confcrat paroeciam, eidem in scriptis significant,
elapso praefinito tempore, paroeciam, quam in
praesena obtinet, ipso facto vacaturam esse.
§ a. Hoc tempore inutili*er transacto, paroeciam
vacantem deduct.
By transfer is understood an exchange of parishes
made with the consent of the legitimate superior. Rea-
sons, at least in general, are required for lawful transfers,
because they are generally looked upon as odious, unless
they involve promotion.1 The Code admits the welfare
of souls (bonum animcrum) as a valid reason. Our text
says that the competent superior may decree a transfer,
and draws a distinction between irremovable and remov-
able pastors. Besides, as admitted by the old and the new
lawf there is a difference between voluntary and invol-
untary transfers, and transfers to a better or to a worse
parish. It may also be noted that the practice of the
Roman Court concerning transfers extends almost ex-
clusively to the so-called desservants of France, who were
considered rectores ad nututn amowbiles*
I. The Code states that if the welfare of souls requires
-
<
1 Cfr. Vol. II, p. 167 f. of this Gasparri regard France ind confirm
Commentary; A. S, S., XIX, 53 fi\ what we stated in the beginning
2 The decisions quoted by Card. of can. 2147.
p
Go >gle
Original fro ni
UNIVERSITY OF WISCONSIN
■
446 ECCLESIASTICAL PROCEDURE
that a pastor be transferred from a parish which he has
governed with success, to another parish, the Ordinary
shall propose the matter to the pastor and persuade him
to accept the transfer for the love of God and of souls.
The reason* for the transfer is here supposed to exist in
the parish to which (ad quatn) the pastor is to be
transferred. It may be that this parish is financially or
spiritually neglected, or that factions or parties are tear-
ing it up to the detriment of souls.4
2. The Ordinary, however, must duly consider the char-
acter of the pastor, whether he is removable or irremov-
able, and whether he is willing or not to accept the trans-
fer. For the Ordinary (iure ordinario) has no right to
transfer an irremovable pastor against his will to another
parish. To do this, special faculties are required from
the Apostolic See. Whether our Ordinaries have ob-
tained such faculties, is unknown to us ; the former formu-
laries contained no such faculty.5 The Ordinary should
beware of making threats, because a transfer made under
threats, or by deceit, would be rescindible by a sentence of
the diocesan court." Therefore the Ordinary is not al-
lowed to conceal the real condition of the parish to which
an irremovable pastor is to be transferred, though he may
emphasize its advantages.
3. A removable pastor may be transferred to another
parish even against his will, provided the parish to which
he is to be transferred is not of too low a rank, and pro-
» Cfr. cc. 37, 30, C. 7, q. 1 : c. contain such a faculty. The facul-
5, X, VTII, 19, mention* utiliias it ties just mentioned were kindly cora-
neeessitos. mumcated to ua for inspection by
*S. C C, March 37. 1886 (A. the Rt. Rcr. Leo Haid, O. S. B.,
S. 5.. XIX. 53). VicaT Apostolic of North Carolina,
B Not even the faculties (Formula for which favor we wish to express
///, motor) granted lately to the our heartfelt thanks.
Vicars Aportolic by the S. C P. F. « Cfr. can. 103; A. S. S XI, 387.
1 by Google
J ^ Original from
UNIVERSITY OF WISCONSIN
CANONS 2162-2167 447
vided the Ordinary proceeds according to the following
canons. i:
What inferioris ordinis means has been touched upon
above. The inferiority may be owing to a smaller income
or to less importance or smaller size. The pastor, as
stated before, may have his own ideas about the superior-
ity or inferiority of a parish. If he accepts the parish of-
fered to him no further formality is required, except that
he declare his willingness to accept, in order that the
Ordinary may declare the parish vacant, — but not by
resignation. For it is a transfer, not a resignation.
4. If the removable pastor thinks he has reasons for
not following the advice of the Ordinary, then
a) He must state in writing the reasons for not accept-
ing the transfer, e.g., his health, his mental qualities, his
financial condition, etc.
b) The Ordinary shall then ponder the reasons given
and consider the status of the parish. If, after due de-
liberation, he insists upon the transfer, he is bound, for
valid procedure, to hear the opinion of two pastors-con'
suitors on the reasons advanced, on the condition of both
parishes (viz., the one from which and the one to which
the removable pastor is to be transferred), and, finally,
on the reasons of necessity or utility which apparently
demand a transfer.
Here may be added some remarks as to the conduct of
the pastor while the case is pending. He should keep
silent and above all not stir up or arouse the congrega-
tion, or create factions, or, what is still worse, have re-
course to civil authority in order to bring pressure to
bear upon the Ordinary.7 Such methods are not only
7 S. C. C. March 23, 1878; March ^7, 1886 (A. 5". S.r XI, 382 ff.; XIX.
53 «.).
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
448 ECCLESIASTICAL PROCEDURE
unbecoming to a priest, but may exasperate the lawful
authority and cause scandal.
c) After having: heard the consultors, if the Ordinary
still insists on the transfer, he may renew his paternal (not
canonical) admonition to move the pastor to acceptance.
d) If this proves fruitless, and the Ordinary remains
unmoved in his former decision, he shall command the
removable pastor (parocho praecipiat) to repair to the
new parish within a certain time. This is a formal pre-
cept, to be served in writing, wherein the Ordinary dev
clares that, after the expiration of the time granted the
pastor for going to his new parish, the parish which he
holds at present will ipso facto be vacant. But a reason-
able time should be given. Twenty-four hours is not
considered reasonable.8 Ten days is more acceptable.
e) After the expiration of the appointed time, if the
removable pastor has not gone to the parish assigned to
him, his old parish must be declared vacant.
Here the procedure ends. No recourse is mentioned.
It would be useless to have recourse to the Holy See, be-
cause it would cause expenses without any practical re-
sult. This whole legislation is modern and, as stated, has
grown out of the conditions of the present time.
*Se« A. 5. 5* m pfi
p
o
I Original from
• OOUIL UNIVERSITY OF WISCONSIN
N
■
TITLE XXX
PROCEDURE AGAINST CLERGYMEN TRANS-
GRESSING THE LAW OF RESIDENCE
Can. 2168
§ 1. Parochum, canonicum aliumvc clericum, qui
residentiae legem, qua ratione beneficii tenetur, ne>
gligat, Ordinarius moneat, et interim, si agatur de
parocho, ciusdem impensis prqvideat ne salus ani-
marum detrimentiun patiatur.
§ a. In monitione Ordinarius recolat poenas quas in-
currunt clerici non residentes itemque praescriptuzn
can. i88p n. 8, et clerico significet ut intra congruum
tempus ab eodem Ordinario denniendum rcsidentiam
instauret.
Can. 2169
Si intra praestitutum terminum clericus nee resi-
dentiam instauret nee absentiae causas afferat
Ordinarius, servato praescripto can. 2149, declaret
paroeciam aliudve beneficium vacare.
Can. 2170
Si clericus residentiam instauret, Ordinarius, non
modo debet, si absentia illegitima fuerit, ei infligere
privationem fructuum pro tempore absentiae, de qua
in can. 2381, sed potest ctiam, si casus ferat, pro
gravitate culpae cum congrue punirc.
44P
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
450 ECCLESIASTICAL PROCEDURE
Can. 2171
Si clericus residcntiam non instaurct, scd abscntiae
causas afferat, Ordinarius, accitis duobus examinatori-
bus et institutis, si opus fuerit, opportunis investiga-
tionibus, videre debet num causae sint legitimae.
Can. 2172
Si, auditis cxaminatoribus, Ordinarius censeat ad-
ductas causas non esse lcgitimas, rursus clerico
praefigat tcrminurn intra quern redire debet, salva
semper privatione fructuum pro tempore abscntiae.
Can. 2173
Si parochus amovibilis intra praescriptum tempus
non redierit, Ordinarius statim procedere potest ad
paroeciae privationem ; si redierit, Ordinarius det ei
praeceptum ne rursus discedat sine scripta sua licentia
sub poena privationis paroeciae ipso facto incurrenda.
Can. 2174
§ 1. Si clericus, qui beneficium inamovibile obtinet,
residcntiam non instauret, sed novas alleget de-
ductioncs, Ordinarius eas cum eisdem cxaminatoribus
ad cxamcn rcvocet ad nor man can. 2171.
§ 2. Si nee ipsae legitimae habitae fuerint, post-
habitis quibusvis aliis deductionibus, Ordinarius
clerico praecipiat ut intra tempus praescriptum vel
iterum praescribendum redeat sub poena privationis
beneficii ipso facto incurrenda.
§ 3* Si non redeat, Ordinarius eum beneficio priva-
tum declaret; si redeat, Ordinarius idem det prae-
ceptum de quo in can. 2173.
jle
f~* ^ v ,|rt Original from
UNIVERSITY OF WISCONSIN
CANONS 216S-2175 451
Can. 2175 <*
Neutro in casu Ordinarius beneficium vacare dc-
claret, nisi postquaro, perpensis una cum cxaminatori-
bus discessus rationibus quas clericus forte allegaverit,
eiusdem Ordinarii licentiam in scriptis ab eodera
clerico peti potuisse constiterit.
The obligation of a cleric to reside at the place of his
office or benefice, if this requires permanent residence;
was set forth in previous canons.1 Here the Code lays
down rules for the treatment of those who violate this
divine-human law. It is evident that a canon who has
the obligation of choir service or other residential du-
ties cannot be punished for a lawful absence of three
months each year. The pastor may enjoy a two months'
vacation, during which he should not be unnecessarily
vexed by a recall from the Ordinary. Outside this
lawful absence pastops and canons, unless urgent need
calls them away, must remain within the limits of their
parishes, though during a few days of the week they
may sometimes absent themselves for good reasons, pro1"
vided they stay at home on Sundays and holydays of
obligation. Unqualified, however, and liable to the pen--
alties enacted in the following canons, would be regular
absence from the parish on all weekdays, as if the pastor
were pastor only on Sundays. The Code provides the
Ordinary with rules that should be observed in pro-,
ceeding against clergymen who infringe upon the laws
of residence- ''
1. The first question naturally turns upon the persons
whom the law intends. They are (a) pastors, i.e., all
who go by this name, either removable or irremovable,
incumbents of true or holders of quasi-parishes, also those
1 Cir. Vol. II, p. 546 f. of this CoramenUry.
C' I Original from
lOOglt UNIVERSITY OF WISCONSIN
452
ECCLESIASTICAL PROCEDURE
■
who govern parishes as vicars of chapters or religious
corporations; for instance, the religious called expositi,
for these are bound by the same obligations as other
pastors.' Temporary substitutes or oeconOmi are bound
by the same duty." Also the coadjutors of disabled pas-
tors, if they take the place of the pastor in all things.*
b) Canons of cathedral and collegiate chapters must
observe the law of residence if they are obliged to daily
choir service and are not allowed to engage a substitute.8
c) Alius clericus, qui residential legem rations beneficu
tenetur, or, in other words all clergymen possessing a
residential benefice, i.e., one which, either by its nature,
or by reason of a charter or particular law, requires
residence.*1 Our assistants or curates (cooperatores)
are not obliged to residence by reason of the beneficiary
character of their office, because the notion of benefice
can hardly be applied to the same, but can. 476, § 5 obliges
them to reside within the parish to which they are at-
tached, according to the diocesan statutes and praise-
worthy custom. There can be no doubt whatsoever that
a priest incardinated and engaged at a certain church
as assistant to the pastor, must stay at that church ac-
cording to the orders of his Ordinary.7 Rural deans,
who are not at the same time pastors, must nevertheless
reside in the territory of their deanery.*
2. The procedure against clerics who seriously trans-
gress the law of residence, is as follows:
a) The Ordinary shall first give a canonical warning
or admonition and in the meantime, in the case of a negli-
gent pastor, provide as well as he can for the welfare
a Can. 4**, I 4.
S Can. 473, I r.
4 Can. 475. fi a.
* Can. 418 '-
* Can. 141 x.
7 S. C. C. M«y I. irs« (R«A«#r,
Trid., p. 207, n. 5>; Aug. 4, iSSo
(A S. S. XIV, U3ff.).
fl Cfr. can. 446, l>; aUo eooiul-
tors, sec can. 415, | 1.
.'Ie
Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 2i6&-fli75 453
of his subjects, The expenses of this temporary pro*-
vision must be borne by the careless pastor.
If we say, a canonical warning, not merely a paternal
admonition, it is because the warning here intended has
all the features of a canonical basis of procedure. There-
fore it should be given in writing, or in presence of two
witnesses, according to can. 2143, § 1. The canonical
nature of the warning also appears from its contents.
For m it the Ordinary must (a) mention the penalty
(loss of income according to the time of unlawful ab-
sence),9 (b) recall to the cleric's mind that contumacious
absence means tacit resignation of the office or benefice
he holds,10 and (c) appoint a certain time within which
the cleric should again take up his residence.
b) The admonition may or may not produce the de-
sired effect. Three hypotheses are conceivable: Either
the cleric does not heed the warning at all, or he takes
up his residence without further ado, or he give reasons
for his absence.
(1) If the cleric neither takes up his residence nor
gives reasons for his absence within the term appointed
in the admonition, the Ordinary shall declare the parish
or benefice vacant.11 However, to do this validly, he
must first make certain that the canonical warning was
duly served and that there was no reason for not an-
swering.
(2) If the cleric returns to his residence, the Ordinary
must, — if the absence was entirely unlawful (of which
the Ordinary is the judge), — deprive him of a pro rata
share of his income, and may also inflict other punish-
ments proportionate to the guilt incurred. The pro rata
0 Can. 2381. cc. 1, rf, it 9tf. (Richter, 7rtf.0
10 Can. 188, b. 8. I. c).
uTriJ., vest. 6, c. j; sen. 2j,
ioi >gle
f^ ^ s ,1,., Original fro m
UNIVERSITY OF WISCONSIN
454 ECCLESIASTICAL PROCEDURE
share of the income is to be reckoned by the time of the
unlawful absence. Thus, if" the yearly salary is $1000,
and the unlawful absence was six months, the fine would
be $500. However, this would be excessive. For even
a delinquent clergyman, as long as he is incardinated and
has not forfeited every claim to a decent livelihood, must
be allowed the necessary support. Therefore he may
subtract the expenses for his maintenance during the six
months, say about $250 or $300, and, as required by
can. 2381, give the rest to the Ordinary, who shall devote
it to charitable purposes.
' The bishop is not entirely free to remit the fine, because
the text says debet, whereas the other punishments may
or may not be inflicted, ad libitum.
• * (3) If the cleric does not return to his residence,
but submits the reasons for his absence, the Ordinary
must call in two examiners, hear their advice, and invest
tigate whether the reasons are acceptable and lawful.
Lawful would be sickness, or necessary business trans-
actions connected with the parish or benefice, or other
reasons which Christian charity or necessity dictate.12
Should the Ordinary, after having heard the examiners,
think the proffered reasons . unacceptable or unlawful,
he must assign another term for the cleric's return to
his residence. The fine for unlawful absence runs in the
meanwhile.
• At this stage, i.e., after the second warning, with a
new term appointed for the absentee clergyman, another
distinction is introduced and must be duly considered, vis.,
the difference between a removable and an irremovable
pastor. ,
..<*■" See can. 338 and Vol. II, p. teiest cannot be called lawful ; these
361 of thii Commentary. But pri- personal interest! are not in keeping
vate business of merely personal In- with clerical obligations.
oogle
v ,|,, Original from
UNIVERSITY OF WJSCONSIN
CANONS 2168-2175 455
a) A removable pastor, who does not return after the
second canonical warning, may (not must) be deprived
-oi his parish immediately after the appointed time has
•elapsed. If he returns within the time set, the Ordi-
nary shall issue a precept to the effect that if he again
leaves the parish without a written permission, he shall
■ipso fa$to be deprived of the parish. It is not only ad-
visable, but necessary, that a copy or abstract of this
precept be kept in the archives of the diocese for further
use. We may also add that a written permission is
needed for protracted absence. But it does not mean that
a removable pastor can not leave his parish for one or
two days a week, provided this absence does not occur too
frequently.
(b) If a cleric who holds an irremovable benefice (our
irremovable pastors are here included) does not return
to his residence after being duly warned, but brings for-
ward new excuses for his absence, the Ordinary shall
discuss them with the examiners to see whether they
may be admitted as lawful. If not, he shall not demand
other proofs, but simply command the cleric to return
within the time already appointed or a new term now
fixed, under penalty of privation of his benefice, to be
incurred ipso facto.
If the cleric does not return within the prescribed time,
the Ordinary shall declare him deprived of his benefice ;
if he returns, the Ordinary shall give him a precept like
that issued in the case of removable pastors, viz., not to
leave the place a second time without a written permis-
sion, under penalty of ipso facto incurring privation of
benefice.
However, in neither case (whether the cleric be re-
movable or irremovable), should the Ordinary declare
the benefice vacant unless he has first discussed the rea-
Q
(M
"\
Grw-u-il^ Original from
°°alc UNIVERSITY OF WISCONSIN
45*
ECCLESIASTICAL PROCEDURE
sons alleged with the two examiners and ascertained for
himself that the cleric was unable to obtain a written
permission or leave of absence. For it may be that the
pastor or beneficiary was retained unlawfully in a place
and had no means of communicating: with die bishop, or
that communications were interrupted for a long time.
Besides, it sometimes happens that the secretary or chan-
cellor makes a mistake in opening or reading the mail.
The same may happen to the bishop. Hence it is ad-
visable that clergymen ask for leave of absence by reg-
istered letter.
N
■
o
►ogle
Original from
UNIVERSITY OF WISCONSIN
■
TITLE XXXI
DE MODO PROCEDENDI CONTRA CLERICOS
CONCUBINARIOS
Can. 2176
Ordinarius clericum qui contra praescriptuxn can.
233 xnulicrcm suspcctam secum habeat aut quoquo
modo frequentet, moneat, ut cam dimittat vel ab
eadem frequentanda sese abstineat, comminatis poenis
in clchcos concubinarios can. 3359 statutis.
Can. 2177
Si clericus neque praecepto paveat, neque re-
spondeat, Ordinarius, postquam sibi constiterit id
clericum pracstare potuisse:
x.° Eum suspendat a divinis;
a.° Parochum praeterea statim paroecia privet;
3.0 Clericum vero qui aliud beneBcium sine ani-
marum cura habet, si, exacto bimestri tempore a sus-
pensions, sese non emendaverit, privet dimidia parte
fructuum beneficii; post alios tres menses, omnibus
beneficii fructibus; post alios tres menses, ipsomet
beneficio.
Can. 2178
Si clericus non obecliat, sed causas excusationis ad-
ducat, Ordinarius debet super eisdetn audire duos
examinatores.
45;
>Ie
Original fro rn
UNIVERSITY OF WISCONSIN
■
458 ECCLESIASTICAL PROCEDURE
Can. 2179
Si, auditis examinatoribus, Ordinarius existimaverit
allatas causas non esse legitimas, id clerico quaxn-
primum significet eique det formale praeceptum ut
intra breve tempus a se definicndum pareat.
Can. 2180
Parochum amovibilem inobedientem Ordinarius
ttatim ad normam can. 2x77 coercere potest; si vero
agatur de clerico qui, bcncficium inamovibile obtinens,
non paret, sed novas allegat dcductioncs, Ordinarius
eas ad examen revocet ad normam can. 2178.
Can. 2181
Si ne eae quidcm iudicentur legitimae, Ordinarius
clerico rursus praecipiat ut intra congruum tempus
mandate obtemperet; quo tempore in uti liter transact*,
procedat ad normam can. 2177.
E
Can. 133 determined the right of the Ordinary concern-
ing the conduct of clergymen towards suspected women.
If the bishop's injunction goes unheeded, the cleric may
be presumed to be a concubinarian. Can. 2176 states
that the Ordinary may issue a canonical warning to such
a cleric, asking him to dismiss the suspected woman
from his house, or to abstain from visiting her. The
warning should contain the threat of penalties as estab-
lished by can. 2359.
Concubinatus is generally defined as " illicttus consut-
tudinarius concubitus cum aliqua foendna corrupta et
soluta, in domo sua vel alibi commorante." l There is
l Schmalzgrueber defines clericus binam vel domi suae vel extra Ulan
concubinarius as one " qui cohcu- instar uxoris continuo rstinet et as-
ioi >gle
v ,1,., Original fro m
UNIVERSfTY OF WISCONSIN
CANONS 2176-2181
459
no doubt that the term implies a number of transgres-
sions, at least two.8 Besides, the woman must, accord-
ing to general opinion, be the same, because concu-
binage imitates the marital state.8 Quo modo frequented
seems to imply any kind of suspicious conversation or
intimacy or visits to a suspected house, for instance, a
theatre of ill fame, etc., wherever this may be. Epistolary
converse cannot be styled frequentatio ; there must be
personal visits. The woman must be suspected, viz.,
susprcia de incontinentia vel lascivia.* Suspicion is a
kind of doubt which does not permit reason to form a
judgment, but inclines it to admit one statement rather
than another. Hence, in this case a suspected woman
would be one to whom a mala fa ma had been attached.
That there should be a careful investigation of such
rumors and the persons who start them goes without
saying.8
• Two things must be absolutely certain, viz., that the
woman is really suspect, and that the clergyman retains
or visits her against the command of the bishop. If
the concubinatus is not notorious, strong proofs are re-
quired, i.e., such as are furnished by two first-class wit-
nesses or by authentic documents.
The text requires a canonical warning, which is to be
siduam cum eo tenet consuetude
ncm;" 1. Ill, tit. *, n. 9; sec also
Reiffenstuel, III, a, n. 13; Weroi,
/hi Decret, II, n. 308.
2 Reiffenstuel, /. c, n. 13;
Schmalrgrueber, /. c, n. 1 1 ; simPUx
fornicatio can net be called concu-
binatus.
■ The S. C C, quoted by Garzia,
Dt Benef., P. II, c. 10, n. 185.
however, held (scss. 34, c. 14, de
re/.); "quod habeat locum [jr. hoc
decretum] ettamri clericus modo cunt
uma, modo cum alia deprehendatur."
• Reiffenstuel, I. c, n. 15, see
also A. S. S., VII, 414 f.
5 Ibid.. II, tit. 20, n. 363, relate!
the following: A pastor was ac-
cused of such a misdeed, but denied
it, although eighty witnesses were
produced. He was condemned, but
upon a second hearing had to be
absolved, because he could prove
that all the witnesses testified from
hearsay, and the story had been
started by one garrulous old
woman. Caution, therefore, is re-
quired.
oogl
Original from
UNIVERSITY OF WISCONSIN
■
460 ECCLESIASTICAL PROCEDURE
administered according to can. 2143 and is called per-
sonal and special, i.e., directed to the clergyman himself,
with special mention of the imputation.* Besides, the
admonition must also contain the threat of the penalties,
ferendae sententiae, which are mentioned in can. 2359.
This canon refers to clerics in higher or sacred orders
only.
The Code now goes on to lay down the rules of pro-
cedure after the canonical warning has been issued.
Here, again, as under Title XXX, three hypotheses are
possible.
The cleric neither obeys the command or precept given
by the Ordinary to dismiss the suspected woman, or to
abstain from visiting her, nor does he answer at all. In
that case the Ordinary must make certain that the clergy-
man was in a condition to answer the charge. If the
admonition was given orally in the presence of two wit-
nesses, there will be no trouble concerning this requisite.
If it was sent by registered letter and the receipt kept,
it will be a relatively easy matter to find out whether
the letter reached its address. There remains only the
case where an impediment or obstacle prevents the clergy-
man from answering, but such cases are rare. Besides,
excepting absence, there may be another person asked
to answer in general, viz., that the clergyman addressed
is at present indisposed and will answer later. Of course,
if the letter should have been intercepted by a third
person, the clergyman may not know of it.
Provided the warning or precept was duly made and
no answer returned, the Ordinary shall proceed as fol-
lows:
(a) He shall suspend the cleric a divinis, i.e., from ex-
0 Schmaligrucber, I. c. III, a, Apost., 1658, p. 148, j. v. " Concu*
11. 9; Barbosa, Summa Dccitionum binaltt;."
jle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANONS 2176-2181 461
excising the acts of the power of ordination (can. 2279,
§a. n. 2°).
(b) If he is a pastor, he shall be immediately deprived
of his parish ;
(c) Against a beneficiary without the care of souls the
Ordinary shall proceed with the privation of half the
income if he does not amend within six months from the
date of the suspension; after three more months of all
the income, and after three more months of the benefice
itself, again provided, of course, that no emendation has
followed.
There is but one difficulty in this rather categorical
procedure/ vis., concerning suspension. Is it a censure
or a merely provisional penalty ? The commentators were
divided as to the character of this suspension, some hold-
ing that it was a censure, others (the more weighty
ones) denying it,8 The question is rather important,
because if there is a censure involved, its violation
would render the clergyman irregular. If a pastor, there-
fore, would say Mass while thus suspended, he would
incur irregularity. Is this the intention of the lawgiver?
Great canonists, like Reiffenstuel and Schmalzgrueber,
maintain that it is not a suspension proper, because not
expressed in law, and therefore no censure involving
irregularity. However, pace tantorum auctonim, it
appears to us that, even if it were not a censure, irreg-
ularity would nevertheless be incurred in case of vio-
lation. The reason for this assertion lies in can. 985,
7°, where irregularity from crime is attached to any
violation of either a personal, medicinal, or vindicative
penalty. And that the suspension here mentioned has
T C. 15, Hist. 81, Also threatened which auipension it now out of date,
a so-called suspension for the faith- a Schmakgrueber, III, a, n. 14 1;
ful who would assiit at ecclesiastical Reiffengtnel, HI, a, n. 40 f.p dewy it.
functions of eUrici concubinoni;
oogle
k .,1,, Original from
UNIVERSITY OF WISCONSIN
■
462 ECCLESIASTICAL PROCEDURE
the character of at least a personal penalty, can hardly
be denied. The only way of avoiding this consequence
would be found in can. 1933, §4, where it is said that
suspension may be inflicted by way of a precept in an
extrajudicial manner. However, according to can. 2306,
even a precept belongs to the class of penal remedies,
wherefore the penal character of such a suspension must,
in our view, be maintained. On the other hand, it is
argued that penalties must be interpreted benignly, and
since irregularities ex delicto savor, at least indirectly,
of penalties, it appears more conformable to the benign
spirit of the Church to exclude irregularity. However,
this argumentation is specious rather than solid. There-
fore, until an authentic interpretation settles the con-
troversy we are bound to cling to the severer opinion.
Whether the Ordinary is obliged to proceed in this
manner is solved by can. 2223, which states that, when
the law employs preceptive terms, the penalty should,
as a rule, be inflicted, but admits delay or postponement
to a more opportune time, also mitigation or change of
penalty, or even abstaining from infliction, if emenda-
tion is achieved and scandal repaired.
2. It is possible that the cleric does not obey the in-
junction of the Ordinary, but proffers excuses. In that
case the Ordinary must call in two examiners and dis-
cuss with them the validity or lawfulness of the reasons
alleged. This discussion is absolutely required, although
the Ordinary is not bound to accept the views of the ex-
aminers. But, as stated above, the reasons must be im-
partially discussed, as also the testimonies on the strength
of which the cleric was charged with this offence.
3. The third hypothesis is that the Ordinary, after
discussing the proffered reasons with the examiners,
finds them unfounded or unlawful, either because they
ogle
k ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANONS 2176-2181 463
are insufficient or because the evidence is too weak. The
result of this negative finding must as soon as possible
be communicated to the suspected cleric, together with
a formal precept to obey the injunction given in the
former warning within a term appointed by the Ordinary.
The length of time is not precisely determined except
by the adjective brief (breve), which may be interpreted
as meaning ten days, more or less, according to circum-
stances or persons and the danger of scandal.
This last hypothesis has different judicical consequences,
according to the difference between removable and irre-
movable rectors. For can. 2180 rules that a removable
cleric who has disobeyed the second warning or
formal injunction to dismiss the suspected women or to
quit her company, may be punished as contumax (can.
2177) i.e., the Ordinary may (though he is not obliged
to) suspend him, and if he is a removable pastor, deprive
him of his parish, or if a beneficiary, of the pro rata rev-
enues, and, finally, of the benefice itself.
But an irremovable pastor or beneficiary must be treated
somewhat more considerately. He may, after the formal
precept, have discovered more and stronger excuses for
not obeying the first canonical warning. These new rea-
sons or allegations must again be discussed by the Or-
dinary with the two examiners. No ballot is required,
since the examiners need only be heard.
If these new reasons are rejected by the Ordinary, the
latter must issue another precept (which might be called
the third canonical warning) bidding the accused cleric
to abide by the injunction of the Ordinary, or rather to
carry it into effect within the time appointed for that
purpose. If the irremovable clergyman does not dismiss
the obnoxious woman, or give up her company, the Or-
dinary shall proceed as stated in can. 2177, i.e., he shall
C^<u>l<> Original from
yV^OOglC UNIVERSITY OF WISCONSIN
464 ECCLESIASTICAL PROCEDURE
at
inflict suspension, and deprive the culprit of his parish,
of the income, and of the benefice.
Note that can. 2x80 permits the Ordinary to proceed,
after the third warning, against a removable cleric in
the same way as against an irremovable one. Recourse
-
indeed is admitted, but it has no suspensive, but only a
devolutive, effect*
• Bened. XIV, " Ai milttamtij," M»rtb 30, 1742. H «# *9S Are**
fir K.-R.t ■»■«, VoL ?>, 6,, S.
( %r\nnl*> Original from
jf^OOglL UNIVERSITY OF WISCONSIN
TITLE XXXII
PROCEDURE AGAINST PASTORS NEGLECT-
ING THEIR PASTORAL DUTIES
Can. 2182
Parochum qui officia paroecialia de quibus in can.
467, § 1, 468, § 1, 1178, I330-X33a» *344. graviter
neglexerit aut violaverit, Episcopus moneat, in
incmoriam eius rcvocans et strictam obligationcm qua
eius conscicntia oucratur et pocnas in hacc dclicta
iure statutes.
Can. 2183
Si parochus sese non emendaverit, Episcopus cum
corripiat et aliqua congrua poena pro gravitate culpae
puniat, postquam, auditis duobus examinatoribus et
facta parocho sese defendendi facilitate, pro ba turn
iudicaverit praedicta paroecialia officia etiam atque
etiam per notabile tempus in re gravis momenti
pratermissa aut violata fuisse et eorundem omissiones
aut violationes nulla iusta causa excusari.
Can. 2184
Si et correptio et punitio in irritum cesserint. Ordi-
nanus, probata, ad normam can. 2183, perseverante ac
culpabili ornciorum paroecialium omissione vel viola-
tione in re gravi, parochum amovibilem sua paroecia
statim privare potest; parochum vero inamovibilem
465
jle
v -J,, Original from
UNIVERSITY OF WISCONSIN
466 ECCLESIASTICAL PROCEDURE
beneficii fractibus, pauperibus ab Ordinario distribu-
endis, pro gravitate culpae in totum vel ex parte
privet.
Can. 2185
Mala voluntate persistente ac probata, ut supra,
Ordinarius ctiam parochum inamovibilem e sua
paroecia removeat.
The neglect here mentioned concerns :
1. The administration of the Sacraments, pastoral cor-
rection and charity, care of the sick and dying (can. 467,
§i; 468. SO;
2. Catechetical instruction and personal preaching,
especially on Sundays and holydays of obligation (can.
I33°-1334; 1344);
3. Neatness and decorum in the house of the Lord,
which includes care that no profanation occur (can.
1 178).
If a pastor, who is personally responsible for all the
things mentioned, grossly neglects or violates the regula-
tions laid down by the law, the bishop shall warn him,
recall to his memory the strict and grievous obligation
imposed on his conscience, and remind him of the pen-
alties with which the law visits such offences.
Although at first blush this admonition seems to be a
merely paternal one, yet can. 2143, § 3 makes it certain
that it is intended as an official warning. It must be
given either in writing, by registered letter, or orally, in
the presence of two witnesses. Note that the bishop is
mentioned here, which means that the bishop himself, and
not the vicar-general or oMcialis, should administer this
warning.
Gravis ncglcctus must be judged in proportion to the
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANONS 2182-2185 467
St
detriment or spiritual damage that results to souls, but
the judgment whether or not it is serious enough to call
for a warning is left to the bishop. Besides, according
to can. 447, the rural deans are called upon to watch in
their respective territories over the fulfillment of these
duties.
The penalties mentioned in law are those set forth here,
because can. 2382 expressly refers to this title.
If the pastor, after the warning has been duly ad-
ministered, does not amend his ways, the bishop shall
rebuke him and mete out a punishment commensurate
with the gravity of his neglect. Compere and punire says
the text. Correptio is a public admonition, to be admin-
istered before the ecclesiastical notary or two witnesses,
or by letter, but always in such a way that the pastor
is really reached.10 It is a personal reprimand which
no doubt has a canonical bearing. Punire, to punish,
is a general term embracing all kinds of ecclesiastical
punishments, not excluding suspension, as is evident from
can. 1933, § 4. Only there should always be a due pro-
portion between guilt and punishment.
However, rebuke and punishment may be inflicted only
after the bishop has heard the advice of two examiners
and after the pastor has been given a chance to defend
himself. This defence may be made personally or by
proxy, orally or in writing. If the pastor does not suc-
ceed in purging himself of the charge, rebuke and pun-
ishment may follow, and are deserved. The defence
shall, of course, turn about the fact and about the rea-
sons or excuses that the accused may offer for his neglect.
The fact concerns the neglect of pastoral duties, espe-
cially if this lasted for a considerable time and affected
matters of importance, such as omitting the teaching of
xO Can. 3309, fi 2.
( !nr»al*> Original from
^ fOOglL UNIVERSITY OF WISCONSIN
468 ECCLESIASTICAL PROCEDURE
catechism for months, or not preaching on many Sundays,
or not saying Mass on one or more holydays of obliga-
tion, neglecting to hear confessions on the days required,
keeping the sacred vessels in an unclean condition, etc.
Torn vestments and dirty or disorderly sacristies also be-
long here. Such neglect may easily be found out at the
time of the visitation or through the rural deans.
But the pastor may plead not guilty, in other words,
he may offer an excuse. There may indeed be an excuse
for not preaching or teaching catechism, for instance,
inborn timidity or physical impediments. But there can
hardly be an excuse for tolerating filth or disorder. If
the pastor is too lazy, he can at least get the altar society
to attend to these matters. A prudent Ordinary will
weigh personal and local circumstances with justice and
impartiality, and if he deems rebuke and punishment
necessary, will not fail to administer it cautiously, so
that the delinquent's reputation is not jeopardized and the
admonition produces its effect.
If neither rebuke nor punishment proves effective, the
Ordinary shall again call in the examiners and discuss
the facts and excuses with them. If the same culpable
neglect continues, and concerns a serious matter, he may
remove a removable pastor from his parish without
further ado. An irremovable pastor he shall deprive of
either a part, or the whole of his income, according to
the gravity of the neglect, and distribute the money among
the poor. If the misconduct should continue, the
Ordinary may remove also an irremovable pastor
from his parish. We suppose, however, that can.
2154— 2156 should here be taken into consideration, as
these dispositions were applied to this case by the " Max-
ima cura" although the Code is silent about their appli-
cation. Equity, however, appears to require it
jte
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
Q
TITLE XXXIII
PROCEDURE IN INFLICTING THE SUSPEN-
SION EX INFORMATA CONSCIENTIA
Up to the time of the Council of Trent the general
rule was that no one could be sentenced except he was
first tried according to the forms of a properly conducted
trial.1 An apparent exception was admitted in crimes of
homicide and heresy, for which, even though occult, a
cleric could be judged and suspended. However, even
these crimes called for at least the semblance of a trial,
because justice requires that every one accused of a crime
be given a chance to defend himself and demanding an
investigation. Besides the adage: " De interms non iu-
dicat praetor" is applicable to all occult crimes which
escape evidence and the courts. However, some kind of a
conscientious suspension was, according to a decretal of
Lucius III, permitted to regular prelates, who could pro-
hibit their subjects from ascending to higher orders if
they had committed a secret delictum known to the su-
perior.2 This was a partial suspension and strictly re-
served to prelates regular.
The Council of Trent ushered in a new era by estab-
lishing the suspension called ex informata conscientia.*
It permitted bishops to inflict suspension on their subjects
lCCr. cc. 4. ft 3C, I. S11 Bouix, iC. s, X. T, 11; Boubc, I. c, II.
Di Iudic\is EccL, II, 3'5 *■; Wernz, J17.
Ius Dtciitrium, Vol. V, P. II, n. 1 Sen. 14. c. 1, dt r*f.
887 «.; Smith, £/rminU of Ell I.
Lew, i8©a, VoL II, J15 ff-
469
>gle
Original from
UNIVERSITY OF WISCONSIN
470 ECCLESIASTICAL PROCEDURE
for an occult crime in an extrajudicial manner. This
was extended also to regular confessors found guilty of a
crime in connection with confession.* That the Jansenists
and Regalists were incensed at this extension of the epis-
copal power is not surprising ; B but the various ways of
interpreting the resp. decree of the Council and the man-
ner in which this power was extolled by a few writers
is a surprise indeed." The Code lays down rules which
are apt to disperse many misconceptions and misgivings,
and also warns the Ordinaries against a too liberal use
of this dangerous power. The text first establishes the
right to use this power, then sets forth the rules for pro-
ceeding, declares for what crimes the suspension ex in-
formata may be inflicted, and, finally, admits recourse
to Rome.
THE POWER OF ORDINARIES
*
Can. 2186
■
§ 1. Ordinariis licet ex in format a conscientia clericos
suos subditos suspendcre ab officio sive ex parte sive
etiam in totum.
§2. Extraordinarium hoc remedium adhibere non
licet, si Ordinarius potest sine gravi incommodo ad
iuris normam in subditum procedere.
Ordinaries are allowed ex infortnata conscientia to sus-
pend their clerical subjects from office, either partly or
totally. This simple text raises various questions, which
call for an answer.
1. What is meant by the phrase, " ex infortnata con-
-
4 Clem. X, " Superna," June ai, 28, 1794. prop. 49 f. (Den linger,
1670. /. c, n. 1420 f.).
0 Fiua VI, " Auctorem fidei," Aug. 6 Cfr. Bouix, /. c, II, 359 ff.;
Wernz, J. c, n. 891.
io >gle
/""* ^ v J„ Original fro m
UNIVERSITY OF WISCONSIN
CANON 2186 471
scientia"?7 No doubt stress is to be laid on conscience,
not on inforntata, because information is required to
form the conscience. Negatively, as is evident from the
Tridentine text, the meaning is that the bishop, in in-
flicting this sentence of suspension, need not observe the
proceedings of a full and solemn, or even of a summary
trial, but may suspend one as soon as his conscience
is informed of the crime. However, it must be added
that this information is not merely a matter of personal
conviction or moral certitude, but must be based upon
objective and reliable information. Bouix 8 justly ob-
serves that the bishop must have in hand such proofs as
would move a judge to give sentence. Therefore, even
if a clergyman would confess his guilt privately to the
bishop — not in confession, because sacramental knowl-
edge could not be used at all — or if the bishop himself,
alone, without other witnesses, would have seen the clergy-
man commit the crime, he could not make use of this
power, because his information would be merely private.
The proof must be such as would convince the public.
This is evident not only from can. 2190, but also from
the fact that recourse (can. 2194) may be had from this
sentence, and the S. Congregation (Concilii) would not
ratify a sentence not based on objective evidence.
2. The object of this sentence ex informata conscientia
is suspension from office. This suspension is described
in can. 2279. If tne suspension is ab officio, without
further determination or limitation, it forbids every act
of order, jurisdiction, and administration implied in the
office itself, except the administration of the benefice as
such. Hence a pastor in our country, when suspended
7 The term does not occur in the 8 L. c, II, 346 ff.
conciliar text, but was coined by
canonists.
v ,1,., Original from
UNIVERSITY OF WISCONSIN
igle
472 ECCLESIASTICAL PROCEDURE
from office ex infonnata conscxentia, cannot licitly ex-
ercise any priestly functions nor validly perform any
acts of jurisdiction, nor administer ecclesiastical prop-
erty, because this administration is attached to his pas-
toral office, the parish income not being a distinct entity,
as if it were a benefice. Can. 22S1 says that a suspension
ab officio includes all offices which a clergyman may hold
in a diocese.
On the other hand, this suspension does not include the
benefice,9 wherefore the administration and enjoyment
of the benefice is not taken away from the beneficiary.
Much less does our text permit sentence of excommuni-
cation or interdict to be pronounced ex informata con-
scicntia.10 Does it include ascent to, or reception of, the
higher orders? According to the decree of the Council
of Trent and all commentators up to the promulgation
of the Code, this suspension could be inflicted upon a
cleric who wished to receive higher orders. However, the
Code only mentions suspension ab officio, i.e., an office
which one is supposed to hold. Consequently, since
penalties must be strictly interpreted, suspension from re-
ceiving a higher order can no longer be inflicted ex infor-
mata conscxentia. Neither is such a measure required,
inasmuch as the irregularities and impediments cover the
field sufficiently.11
The suspension may be either partial or total. It is
total, if all the effects of suspension are intended, i.e.,
all acts of the power of order and jurisdiction as well
0 Some authors, v. g., Santi (V. tancc the priestly character. There-
1. n. 22) held this, but it was fore only the prelacies might be
justly rejected by others, v. g., considered or, more correctly speak-
Wernz, /. c, n. 897. ing, the episcopate. But the pro-
lOBouix, II, 341. cessus infortnativus and S. C. Con-
U This seems more probable also sist. will settle this point quite effec-
on the ground thai the new law re- tively-
quires for every office of any impor-
jle
% ,1 , Original from
UNIVERSITY OF WISCONSIN
CANON 2186 473
as of administration. It is partial, if only the one or
the other effect is clearly indicated — because these must
according to can. 2188, 30, be pointed out expressly —
as, for instance, from hearing confessions, a divinis, etc.,
as enumerated in can. 2279.
3. The prelates who may inflict this suspension are
here simply called Ordinaries, i.e., all those who go by the
name of Ordinary, according to can. 198: residential
bishops, abbots and prelates nullius, vicars and prefects
apostolic, administrators, and religious superiors of ex-
empt clerical orders. The vicar-general is excluded, un-
less he has obtained a special commission from his bishop,
because can. 2220, § 2, certainly must here be applied, as
was held before.12 As to the superiors of exempt clerical
institutes, it is certain that they may suspend their sub-
jects from office. This power is vested in all provincials
and such as hold their places, hence also in conventual
priors or guardians. According to can. 199, § 1, this
power may, either partially or totally, be delegated to
others. Thus an absent abbot may delegate this power to
a cloistral prior, a guardian to the vicar, etc. But can.
519 must always be observed. Hence, though a religious
may have been suspended by his superior ex informata
conscientia from hearing confessions, he could absolve
validly if he had obtained jurisdiction from the local Or-
dinary.1*
4. Who is the passive subject of this power? The
text says : " clericos suos subditos," i. e.t all their clerical
subjects. Therefore, laymen do not fall under this pen-
alty.14 On the other hand, any one who has received
IS Thu« Wcrnx, /. c, V, P. II, o. March z, 1866 (Bixiarri, Collect.,
8q.. and otheri, quoted by him p. -•.;. p. 755).
ibidem, 14 Formerly they could, because
IS S, C. EE. et RR., July 2, 1637; of the prohibition of receiving or*
den.
ogle
Original fro ni
UNIVERSITY OF WISCONSIN
474 ECCLESIASTICAL PROCEDURE
the tonsure, is a cleric, and may therefore be suspended
ex informata. Besides, the Ordinary can inflict this sen-
tence on all who hold an office in his diocese, whether
with or without a dignity. Therefore the vicar-general,
canons, consultors, and officials are subject to such a
sentence.15 Concerning offices which one holds in a
strange diocese, can. 2282 must be observed. This sen-
tence follows the clergyman affected by it everywhere.16
Ordinaries may also suspend regulars from hearing con-
fessions, even though they had obtained faculties from
the local Ordinary without limitation; nor is the latter
bound to indicate the reasons for this suspension.17
In order, however, to remind Ordinaries of the extra-
ordinary character of this power, they are warned to
make use thereof for no frivolous reasons; in other
words, they should not inflict suspension ex informata
cotuscientia when they can proceed in the judiciary way
without great inconvenience (can. 2186, §2). For the
procedure ex informata conscientia involves a severity
which is justified only by very strong reasons, such as the
public welfare, scandal to be avoided, or very serious
guilt.18 Thereby, however, we do not mean to say that
the sentence would be invalid if the reasons were not
entirely strong enough, because the text merely says:
" adhibere non licet," "
15 Wrrnz, /. c, n. 893. XII. 8, 6, says that a bishop who
lfl See can. 2226, fi 4. would declare at a synod that hence*
17 Clem. X, " Superna," June 21, forth he would proceed only ez
1670, 1 6. informata conjciculim would de-
18 Bouix, /. c, II, 344; a case of serve to be rebuked, because his
this land was solved by S. C. C, action would savor of ambition and
Feb. 25, 1875 <■"*• S. S,, VII, ostentation and breed hateful ty-
547 ff. ) ranny, or autocracy, as we vrould
IS Bened. XIV, De Syn. Dwetc, now style it
-
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANONS 2187-2190 475
procedure in inflicting this penalty
Can. 2187
Ad fcrendam hanc suspensionem nequc format
iudiciales nequc canon icae monitiones requiruntur;
sed satis est si Ordinarius, servato praescripto
canonum qui sequuntur, simplici decreto declaret se.
suspensionem indicere.
■
9
-
Can. 2188
Huimmodi decretum detur in scriptis, nisi adiuneta
aliud exigant, designate die, mense et anno; in eoque:
i.° Expresse dicatur suspensionem ferri ex in-
f ormata conscientia seu ex causis ipsi Ordinario notis ;
a.° Indicetur tempus durationis poenae; abstineat:
autem Ordinarius ab ipsa infligenda in perpetuum.
Potest vero infligi etiam tanquam censura, dummodo-
hoc in casu clerico patefiat causa propter quam sip*
spcnsio irrogatur;
3.0 Clare indicentur actus qui prohibentur, si
suspensio non in totura sed ex parte infligatur.
Can. 2189
§ 1. Si clericus suspensus sit ab officio in quo alius
in eius locum substituendus est, ut, ex. gr., oeconomus
in cura animarum, qui substituitur mcrcedem ex
fructibus beneficii percipiat secundum prudens Or-
dinarii iudicium determinandam.
§ 2. Clericus suspensus, si se gravatum senserit,
potest imminutionem pensionis petcre ab immediato
Superiore qui in via iudiciaria esset iudex appella-
tionis.
§le
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
'.■-.
476 ECCLESIASTICAL PROCEDURE
Can. 2190
Ordinarius, qui fert suspensionem ex informata
conscientia, debet ex peractis investigationibus tales
collegisse probationes, quae eum certum reddant
clericum delictum revera perpetrasse et quidem adeo
grave ut eiusmodi poena coercendus sit
It was stated above that informata conscientia means
absence or lack of judicial procedure, either summary
or solemn. This is clearly indicated in can. 2187, which
states that neither judiciary formalities (such as sum-
mons, contestatio litis, hearing of witnesses, defence, sen-
tence), nor canonical warnings are required to inflict a
-■suspension ex informata conscientia; all that is required
is that the Ordinary observes the rules here laid down
-and simply declares that the suspension is hereby in-
flicted."
Can. 2188 rules that the decree of suspension must be
issued in writing, unless the circumstances should advise
another mode, for instance, when there is a well-founded
suspicion that the clergyman or others are bent on caus-
ing trouble in any shape or form. The decree must con-
tain the precise date, i.e., day, month, and year of issue.
Besides, it must contain the following statements:
i.° That the suspension is inflicted ex informata cefn-
scientia, or for reasons known to the Ordinary ;
2.0 That it is inflicted for a certain clearly expressed
period of time ;
so The following: formula may be redder.' debemitr, et as informata
used (see Smith, I. c, II, p. 33*» conscientia, a divmit tab nudtendu
according to Monacelli) : " Constiio conftssionibus a dicenda Missa]
nobis; praibylerum N. ease raum sutPtndimus par tax [fr«] meaaca,
cri mints, eum ob causa.; Quae ami- el juspensum ddCiaramus. ac ei dl-
mm nostrum digne moveYt, et it cretum suspension** intimari man-
quibus Deo et Sedi Apostoticae, cum damns. JV. Iipuco?*s N„
Mmbutrtmui in mandatit, rationem N, Actuoriut.
a
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANONS 2187-2190 477
3.0 A specification of the acts forbidden if the suspend
sion is partial only.
The reason for i° is that the clergyman may know
immediately that no appeal to a higher instance or court
is admitted. On recourse to Rome, see can. 2194. 1
To n. 2 the text itself adds that the Ordinary should
abstain from inflicting a perpetual suspension. How-
ever, this does not mean that a suspension inflicted in
perpetuum would be null and void : because the text itself
has no invalidating, but only a warning clause. There-
fore, to assert the invalidity of such an indefinite or per-
petual suspension would be against the wording of the
text.31 If the Ordinary should suspend one "ad bene-
placitum nostrum/' this would be an indefinite suspen-
sion, but would expire with the death or removal of the
Ordinary who issued the sentence.22
The text adds to n. 2 that the suspension ex informata
conscienHa may also be issued as a censure, provided the
reason for which it is inflicted is made known to the
cleric in the case. Although the effect would be the same.
yet absolution in case of repentance and repair of scandal
could not be withheld (can. 2242, § 3).
It was said that the effect is the same, no matter
whether the suspension is inflicted as a vindictive pen-
alty or as a censure. This effect consists in prohibiting
the clergyman from exercising the functions attached to-
his office, either partially or totally. If notwithstanding
this suspension the clergyman would perform the for-
bidden acts, he would become irregular.**
■
21 Smith, /. c, XI, p. 323, main- could also allege decisions of the
tained invalidity, for which he could S. C. C* Wernz, /. c, n. 898 simply
icfer to S. C. C, Feb. M. 1853 sajo: " non potM infligi — "; sb-
(A. S. S., VII, 574!; he might swer: " licite, concedo;valide,nego."
have added S. C. C, dec. 20, 1873, 22 Bouix, I c, II, 336; Werni,
A. S. S., i&.) ; but Bouix, L C, II, J. c, n. 900.
334 i., defended the vilidity and 23 Cfr. can. 085. n. ?; S. C. C,
oogle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
478 ECCLESIASTICAL PROCEDURE
It one is suspended from office in such a way that
another must take his place, as, for instance, when a
pastor is suspended from his pastoral office, the substi-
tute must be paid from the income of the benefice or
the pastor's salary, respectively. The amount of the re-
numeration to be paid to the substitute is to be determined
by the Ordinary according to his own prudent judgment.
In our country, where no state funds can be resorted to,
this will depend on the wealth or income of the parish.
This may cause some trouble. For the suspended clergy-
man may think himself unjustly treated if too much is
subtracted from his salary. There may not be enough
left to support him. Therefore, the Code permits him
to appeal (in the widest sense of the word) to his imme-
diate superior. The scope of this quasi-appcal is to ask
for a diminution of the amount of compensation decreed
by the Ordinary for the substitute. To the metropol-
itan court, therefore, or the court of appeal in the sec-
ond instance, a clergyman who thinks himself aggrieved
should have recourse. But note wtll that this is no re-
course from the sentence inflicted ex informata con-
scientia, but merely concerns the material question of
support or remuneration.
Can. 2189 rules, what was already explained above,
that the Ordinary who suspends a cleric ex informata
conscientia, must have evidence sufficient to be certain:
i.° That the cleric really perpetrated the crime with
-which he is charged, and
2.0 That the crime is of a nature to deserve such a
severe punishment.8*
April 8, 1848, ad IV (A S. S., criminu); VHI, $47 ff. (of the same
XIV, 314); Wernz, /. c, n. 901. nature); XIV, 299 ff. (prava vivtndi
3* Some cases may be seen in ratio ci corrnfti mores, alio cm-
A. S. S., VII, p. 569 ff. (tvrpissimi bczzlement of church fundi).
§le
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANONS 2191-2192 479
occult crimes
Can. 2191
§ 1. Suspension! ex informata conscientia iustam ac
legitimam causam pracbet delictum occultum ad nor-
mam can. 2197, n. 4.
§ 2. Ob notorium delictum suspensio ex informata
conscientia nunquam ferri potest.
§ 3. Ut delictum publicum suspensions ex informata
conscientia plecti possit, occurrat necesse est aliquod
ex adiunctis quae sequuntur:
i.° Si testes probi et graves delictum quidem Or-
dinario patefaciant, sed nulla ratione induci possint ut
de eo testimonium in iudicio ferant, neque aliis proba-
tionibus delictum iudiciali processu evinci possit;
a.0 Si ipsemet clericus minis aut aliis adhibitis
rncdiis inipediat ne processus iudiciarius instituatur
aut incept us pernciatur;
3- Si processui iudiciali conficiendo ferendaeque
sententiae impedimenta exoriantur ex adversis civili-
bus legibus aut gravi scandali periculo.
Can. 2192
Suspensio ex informata conscientia valet si ex
pluribus delictis unum tantum fuerit occultum.
The two canons settle the controversy as to which
crimes can be punished with suspension ex informata
conscientia. The Council of Trent really intended and
mentioned only a " crimen occultum," as is manifest from
the preface to Sess. 14, de ref. For public and notorious
crimes the bishops needed no extension of their power,
since they could prosecute these in the judiciary way."
25 Weroz, I c, n. 896.
►ogle
£ * ^ % .J,., . Original from
UNIVERSITY OF WISCONSIN
480 ECCLESIASTICAL PROCEDURE
%
The text itself, ch. i of session 14, explicitly states:
" occult crime." Nevertheless some authors extended this
a
suspension to public crimes." The Code takes the golden
mean between the two extremes.
I.° A just and legitimate cause for suspending one
ex informata conscientia is an occult crime, i.e., one
which is not yet divulged or has been committed under,
or is involved in, circumstances which render it unlikely
that it will become known. " Occultum, quod non est
publicum," says can. 2197.
Hence, if the crime is not liable to be divulged on
account of the secret circumstances under which it was
committed, it is supposed to remain secret. This is some-
what similar to a secret impediment, which is one that
cannot be fully proved in court. However, if a case has
been tried in court, although without result, it can no
longer be called occult, and in that hypothesis the Ordi-
nary would act wisely if he abstained from inflicting sus-
pension ex informata conscientia.2'1
2.0 Suspension ex informata conscientia can never be
inflicted for a notorious crime because such a crime
requires judiciary procedure, in order to safeguard public
welfare and justice and the authority of the law. This
was generally admitted.
3.0 The Code makes some concessions to those who
hold that this suspension may be inflicted also for a
public crime, but it requires that at least one of the three
following conditions be present:
a) That trustworthy and serious witnesses made the
■
26 Thas Bouix, J. c, II, 325 f . for condemnation, and then twice
27 S. C. C, Dec 20, 1873 (-*• before the ecclesiastical court, from
S. S., VII, 569) granted an ap- which the pastor appealed, but wai
peal proper, because the case had in the meanwhile suspended by the
been brought before the civil court, bishop ex inf. consc, in order to
which could not find sufficient proof cause lets noise.
'■-.
.'Ie
£ * ^ v J„ Original fro rn
UNIVERSITY OF WISCONSIN
CANON 2193 481
a
crime known to the Ordinary, but cannot in any way be
induced to make depositions at a trial, and no other evi-
dence is at hand which would prove the crime in a ju-
diciary way ; "
b) that the clergyman would use threats or other means
to impede or stop a judiciary trial;
c) that the civil law or a serious scandal stand in the
way of a formal trial or judicial sentence. This is pos-
sible in countries where the brachium saeulare not only
does not assist but directly opposes the Church.28
Suspension ex mforwata conscientia is valid if only
one crime of several imputed to the same party is occult.
Thus if a clergyman should be publicly accused and tried
for embezzlement of church funds, but has also been
guilty of a crime which is not provable in court, he may
be suspended ex informata conscientia.*0
e
MANIFESTATION OF REASONS AND RECOURSE
c
Can. 2193
Prudenti Ordinarii arbitrio relinquitur suspensionis
causam seu delictum clerico patefacere aut reticere,
pastorali tamen adhibita sollicitudine et caritate, ut, si
delictum clerico manifestare censuerit, poena, ex
en
paternis quae interpoauerit monitis, nedum ad expia-
tionem culpae, verum etiara ad emendationem delin-
quentis et ad occasionem peccati eliminandam in-
serviat.
CI
28 This was the case narrated in spcctable citizens, bat afraid of the
A. S. J., VII, 570; putlla honest* pastor, and the civil court seemed
et sineera, guar turpia pasta est a to favor the priest.
clerico. 80S. C. C, April 8, 1848; Feb.
20 Aa to b) and c) ace S, C. C, 37, 1875 (A. S. S., XIV, 299 ff.;
April 8, 1848 (A. S. S., XIV. 300); VIII, 547 «.).
the witnesses were serious and re-
jle
Original fro ni
UNIVERSITY OF WISCONSIN
a
N
482 ECCLESIASTICAL PROCEDURE
Can. 2194
Si clcricus rccursum a suspensions sibi inflicts
interponat, Ordinarius ad Sedcm Apostolicam mittere
debet probationcs quibus constet clericum delictum
revera perpetrasse quod extraordinaria hac poena
puniri qucat.
The Tridentine decree permitted Ordinaries to inflict
this suspension quomodoiibct, etiam extraiudicialiter.
Since, then, there is no judiciary procedure involved, it
is left to the prudent judgment of the Ordinary to mani-
fest or conceal the reason for the suspension. If he
deems it prudent to make the reason known to the sus-
pended cleric, he should use pastoral care and charity, in
order that the penalty inflicted and accompanied by pa-
ternal admonitions, will not only procure an atonement
of the transgression, but also better the delinquent and
eliminate further occasions of sin. For the Ordinaries,
as our Code,11 following the Council of Trent, says,
should remember that they are " pastores, non percus-
jores." Of course, the admonitions referred to are not
canonical, but purely paternal, and hence destitute of the
judiciary character.
The lawgiver, however, in order not to leave the sus-
pended clergyman entirely defenceless, which would be
against every dictate of justice, allows him to hove re-
course to the Apostolic See (S. C. Concilii). Hence
there is no appeal to the metropolitan or second instance.
This recourse has no suspensive, but only a devolutive
•effect, and the suspended clergyman must therefore con-
duct himself as one suspended, and abstain from every
act prohibited by the suspension, whether specifically or
generally stated.
si Can. aai4, I >; Trid., Sets. 13, c i, it ref.
►ogle
( * -» ^ iL» Original fro ni
UNIVERSITY OF WISCONSIN
N
■
CANONS 2 193-2 194 483
The Ordinary must forward the papers to the same S.
Congregation. They must contain the evidence or proofs
that the clergyman really committed the crime for which
he was suspended ex informata conscientia. These must
be sent in trustworthy and correct abstracts bearing the
official seal and signature. If the witnesses do not ob-
ject, the original documents may be sent, provided a
faithful translation accompanies the vernacular text. Be-
sides, we may reasonably suppose that if the sentence
was inflicted for a public crime, at least one of the three
conditions mentioned above should be added and testified
to; otherwise there might be delay in deciding the case.
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
APPENDIX I
■
(To Canon 1990)
The Papal Commission for the Authentic Interpreta-
tion of the Code has decided the following cases : 1
1. If two Catholic parties have contracted marriage
before the civil magistrate only, without observing the
"Tametsi" or the " Ne temere," in places where these
laws are binding, and wish to contract marriage anew
in facie Ecclesiae, or to have their civilly contracted mar-
riage revalidated, the local Ordinary (or the pastor after
having consulted the local Ordinary) may declare the
first marriage null and void without a formal trial and
without the intervention of the defensor vinculi, after
having made the investigation prescribed in can. 1019,
i.e., after having ascertained the free status of the couple,
— that no other impediment except the formerly clan-
destinely and therefore invalid contracted civil marriage
is in the way.
2. The same rule is to be applied in cases of mixed
marriage contracted invalidly in a non-Catholic Church
under the same condition, provided the Catholic party
wishes to contract a new marriage with a Catholic.
3. The same rule applies in cases where apostates from
the Catholic faith have contracted an invalid civil mar-
riage for the same reason, and, now repentant, wish to
contract a new marriage with a Catholic party in facie
Ecclesiae.
But in each and every one of these cases a civil divorce
must have first been obtained.
1 Cfr. A. Ap. S., Vol. XI, 479 (Oct 16, 1919). We add this decision
here for the convenience of those who have the first edition of Vol. V of
tbi* Commentary.
484
.'le
Original from
UNIVERSITY OF WISCONSIN
Q
APPENDIX II
" DECRETUM " AND " DECERNERE "
Canon 1868 states that " all other settlements are called
decrees/' and hence it seems worth while to give a list
of these contained in the Code. We shall do so by quot-
ing the respective canons and mentioning the topics treated
therein.
x. Can. 1570* § 2 Intimation of decrees.
2. Can. 1577, § 2 Official's administration method.
3. Can. 1591, § t Beadle.
4. Can. 1601 No recourse from decrees.
5. Can. 1604, § 4 Signature decrees acceptance of peti-
tions.
6. Can. 1607, §2 Bishop decrees extraordinary minis-
ters.
7. Can. 1627 Order of taking cognizance.
8. Can. 1635 Dilatory terms.
9. Can. 1638, § 1 Hours of trial.
10. Can. 1639, § 1 Days of trial.
XI, Can. 1663 Removal of procurator and advocate.
12. Can. 1672, § 3 Sequestration.
13. Can. 1674 **
14- Can. 1675. §§2, 3
15. Can. 1600. § 3 Spoliation.
16. Can. 1710 Oblatio libelli.
17. Can. 1724 Summons.
18. Can. 1729, §§2, 3, 4 Litis contestatio.
19. Can. 1758 Suspected witnesses.
20. Can. 1765 Summons of witnesses.
21. Can. 1782, § 1 Publication of witnesses.
22. Can. 1784 Rejection of witnesses.
23. Can. 1786 Readmission of witnesses.
24 Can. 1796, § 2 Experts.
25. Can. 1790. § 1
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
486
APPENDIX II
■
26. Can.
27. Can.
a8. Can.
29. Can.
30. Can.
31. Can.
32. Can.
33- Can.
34- Can.
35- Can.
36. Can.
37- Can.
38. Can.
39- Can.
40. Can.
41. Can.
42. Can.
43- Can.
44. Can.
45- Can.
46. Can.
47- Can.
48. Can.
49- Can.
50. Can.
51. Can.
52. Can.
53- Can.
54- Can.
55. Can.
56. Can.
57- Can.
58. Can.
59. Can.
60. Can.
61. Can.
62. Can.
63. Can.
64. Can.
65. Can.
66. Can.
1806
Local inspection.
1810
H M
i8xi, §1
14 U
1821. § 1
Documents.
1823, S3
■1
1830, §5
Oaths.
1839
Incidental questions.
'840, §§ i, 3
•< a
1856, §2
Attempts.
1857, |x
11
i860, §3
Publicatio processus.
1861, §2
Conclusio in causa.
1868, §2
Decrees.
1878, §S 2, 3
Correction of errors.
1880, n. 6.
Appeal.
1899, §4
Opposition of Third Person.
1907. §2
Restitutio in integrum.
1918
Execution of sentence.
1946, §2
Denunciation.
1957
Removal from a place.
1958
U M «
1988
Matrimonial cases.
1992
M U
2040, §2
2073
2078
2083, §2
2084
2087, §§ if 3
Beatification
2100, §3
and
2110, §1
Canonization
21 IS, §§1, 2
Decrees.
2124, § i, 2
2134
2139
2140
2141
2146
Removal of pastors.
2152, §2
U It it
2153. §8 I. 3
II It tt
2154, § I
U It it
>ogle
Original from
UNIVERSITY OF WISCONS
APPENDIX II 487
67. Can. 2155 Removal of Pastors.
68. Can- 2161, gi "
6q. Can. 2187 Suspension ex informata eonscientia.
70. Can. 2188
11
I Original from
y^jOO^K. UNIVERSITY OF WISCONSIN
►ogle
Original from
UNIVERSITY OF WISCONSI
-■
oogle
Original from
UNIVERSITY OF WISCONSIN
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
;Ie
Original from
UNIVERSITY OF WISCONSIN
flIOSTESlOCH
b8905925 1009a
may be V
FO'
from In-. t det
will bechar
28Se°*
2F
O
oogle
Original from
UM IV ERS If Y 0 F Vi-' I S CO N 5 1
Original from
NIVERSITY OF WISCONSIN
Original from
ni'iL'iiiditMnviuiiLinri
■
pi
Hibrarp
of ttje
mntbcrsttp of Wi&ton&in
f Google^
UNIVERSIWOFWI5CON5I
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
>Ie
Original from
UNIVERSITY OF WISCONSIN
-'
■
pi
>Ie
Original from
UNIVERSITY OF WISCONSIN
1
( *r\nnl*> Original from
jf^OOglL UNIVERSITY OF WISCONSIN
A COMMENTARY ON
THE NEW
CODE OF CANON LAW
■
By THE REV. P. CHAS. AUGUSTINE, O.S.B., D.D.
Professor of Canon Law
VOLUME VIII
BOOK V
I
Penal Code (Can. 2195-2414)
with complete index
B. HERDER BOOK CO.
17 South Broadway, St. Louis, Mo.
AND
68 Great Russell St., London, W. C-
1922
*Ie
Original fro ni
UNIVERSITY OF WISCONSIN
CUM PERMISSU SUPERIORUM
NIHIL OBSTAT
Sti, Ludoznci, die 25. Aug., 1932.
F. G. Holweck,
Censor Librorum
■
IMPRIMATUR
Sti Ludoznci, die 25. Aug., 1022.
^Joannes /. Gtcnnon,
Archicpiscopus
Sti. Ludovici
Copyright, 1922,
by
B. Herder Book Co.
All rights reserved
Printed in U. S, A.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CQ 587684
%
CONTENTS
< '
PACT
BOOK V. Introduction x
> PART I. ON CRIMES 9
*° Title I. Nature and Division op Crimes .... 9
Publicity of Crimes IS
Ecclesiastical, Civil, and Mixed Crimes 18
Title II. Imputability, Aggravating or Extenuating
Circumstances, and Juridical Effects op Crime 22
Imputability in General 23
Dcfectus Cognitionis 25
Carelessness 34
Age ■ 37
Violence, Fear, Necessity, Detriment 38
The Passions 43
Aggravating Circumstances 45
Parties to a Crime 47
Consequences of Crime 52
Title III. Conatus Delicti or Inchoate Crimes ... 55
PART II. PENALTIES 58
Section I. Penalties in General 58
Title IV. Definition, Kinds, Interpretation, and
Application of Penalties 66
Definition 66
Different Kinds of Penalties 69
Application of Penalties 75
Interpretation of Penalties 78
Title V. Superiors Who Wield Coercive Power . . 82
Coercive Powers 83
The Judge 88
Tttle VI. Who Are Liable to the Coercive Power of
the Church 93
General Rules and Exceptions 93
111
>Ie
( * -» ^ -.L-. Original from
UNIVERSITY OF WISCONSIN
iv CONTENTS
PA01
The Criminal Act 96
Psychological and Physiological Requisites of Crime
and Criminal Co-Operation 97
When Penalties Take Effect 102
Multiplied and Attempted Crimes 104
Title VII. Remission or Penalties 106
Who May Grant Pardon 106
The Ordinary's Power with Regard to Common
Law 108
Conditions and Mode of Pardon no
Section II. Penalties in Particular 112
Title VIII. Corrective Penalties or Censures . . 112
■n
Chapter I. Censures in General 112
Appeal or Recourse from Censures 120
Multiplication of Censures 123
Reservation of Censures 128
Absolution from Censures 139
Necessity and Claim to Absolution — Revival of
Censures 140
Absolution from Several Censures 143
Absolution from Sin and Censure 145
Absolution in the External and Internal Forum . 148
Those Empowered to Absolve from Censures . . 151
1. Absolution in Danger of Death 151
2. Absolution When There Is No Danger of
Death 154
3. Absolution in More Urgent Cases .... 157
Chapter II. Censures in Particular 163
Art. 1. Excommunication 168
Nature and Division 170
Inseparable Effects 175
Exclusion from Divine Office 176
Reception and Administration of Sacraments anil
Sacramentals 179
Exclusion from the Suffragio 183
Exclusion from Legal Acts 187
Loss of Income from Dignity, Office, etc. . . .192
Social or Civil Intercourse 193
oogle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
"-.
CONTENTS v
Art II. The Interdict 194
Definition and Division ' - . 195
Authorities Who Can Inflict the Interdict ... 198
Effects of an Interdict 201
Consequences of Local Interdicts 201
Effects of a Personal Interdict 209
Mitigation for the Personally Innocent . . . 213
The Interdict Forbidding One to Enter a Church 215
Art. III. Suspension or Gerical Censure . . . 216
Nature and Distinction 217
Effects of Suspension 218
Extent of Suspension 226
Mitigation of the Effects 231
Suspension of Communities 232
Title IX. Vindictive Penalties 235
Chapter I. Vindictive Penalties Common to all
the Faithful 242
Chapter II. Vindictive Penalties for Clerics . . 252
Title X. Penal Remedies and Penances .... 264
Chapter I. Penal Remedies 26s
Chapter II. Penances 271
PART III. PENALTIES FOR INDIVIDUAL CRIMES 274
Title XI. Crimes Against Faith and Unity ... 275
Apostasy, Heresy, and Schism 275
Suspicion of Heresy 284
Cooperation in Heresy 287
Teaching and Defending Condemned Doctrines . . 289
Penalties in Regard to Forbidden Books .... 294
Mixed Marriages and Non-Catholic Education . . 296
Title XII. Crimes against Religion 301
Desecration of Consecrated Species 301
Violation of the Laws of Bination and Fasting . . 304
Saying Mass and Hearing Confessions by Persons
not Priests 305
Blasphemy and Perjury 308
Trafficking in Mass Stipends and Defraudation . . 3x1
tdt jle
% ,] , Original fro m
UNIVERSITY OF WISCONSIN
vi CONTENTS
PAGS
Superstition and Sacrilege 312
Trading in False Relics 3*5
Trafficking in Indulgences 316
Desecration of Graves and Corpses 318
Desecration of Churches and Cemeteries . . . 31Q
Title XIII. Crimes against Ecclesiastical Author-
ities, Persons, and Things 321
Transgressions of Laws Concerning Papal Election 321
Disobedience and Conspiracy 323
Appeal to a General Council 327
Civil Interference with Papal Communications
(Placet) 330
Violation of the Liberty and Rights of the Church 334
Freemasonry 339
Incitement of Priests to Insubordination . . . 347
Disregard of Reservation and of Penalties . . . 350
Extortion of Christian Burial 357
Perseverance in Censure 361
Violation of the PriviUgium Fori 363
Papal Enclosure 368
Violation of the PriviUgium Canonis 375
Public Verbal Injuries 380
Usurping and Retaining Property and Rights of
the Roman Church 384
Usurpation and Secularization of Church Property 386
Illegal Alienation 392
Neglect to Execute Pious Bequests 395
Refusal to Pay Stole Fees and Taxes 396
Title XIV. Crimes against Life, Liberty, Property,
Good Name 397
Duelling 403
Compulsion in Regard to the Clerical or Religious
Vocation 406
Abduction of Women 407
Mixed Crimes 408
Private Verbal Injuries 4ro
Bigamy 411
Crimes of Laymen against Good Morals .... 413
Clerical Offenders contra Stxtum 416
p
jle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
> t.
CONTENTS vii
Title XV. Crimen Falsi or Forgery 4x9
Forgery of Papal Documents 419
Subreptitious and Obreptitious Rescripts . . . 422
False Accusation of Solicitation 424
Title XVI. Unlawful Administration and Recep-
tion of Orders and Other Sacraments . . . 428
Administration of the Sacraments to Persons For-
bidden by Law to Receive Them 428
Confirmation Administered by a Priest .... 430
Hearing Confessions and Giving Absolution from
Reserved Sins without Jurisdiction 431
Absolutio Complicis 434
Sollicitatio 437
Violation of the Seal of Confession 441
Episcopal Consecration without an Apostolic Man-
date 444
Simoniacal Administration and Reception of Orders
and Sacraments 445
Reception of Orders from Censured Ecclesiastics 447
Illegal Ordination 449
Illegal Reception of Orders 451
Unlawful Mixed Marriages 452
Title XVII. Violation of the Obligations Proper to
the Clerical or Religious State 454
Refusal to Take Examinations 454
Stubborn Absence from Pastoral Conferences . . 455
Serious Neglect of Rites and Ceremonies .... 456
Refusal to Wear the Clerical Dress 458
> Trading Forbidden to Gerics 46b
Violation of the Law of Residence 462
Neglect of Pastoral Duties 464
Carelessness in Keeping the Parish Books ... 464
Negligence on the Part of the Canonicus Theologus
and Poenitentiarius 466
Apostates a Religions 467
Fugitive Religious 471
Profession Void by Reason of Deceit . . . .473
Marriage Attempted by Clerics and Religious . . 475
Violations of Community Life 4S0
G Original from
OOglt UNIVERSITY QFWI5C0NSIN
viii CONTENTS
Title XVIII. Crimes Committed in Conferring, Re-
ceiving, and Dismissing Ecclesiastical Digni-
ties, Offices, and Benefices 483
Violation of the Freedom of Elections .... 483
Election, Nomination or Presentation of Unworthy
Candidates; Non-Observance of Essential For-
malities 487
Simony in Ecclesiastical Offices, Benefices, and Dig-
nities 491
Neglect of Ratification or Institution 492
Illegally Taking Possession of Ecclesiastical Offices,
etc 494
Acceptance of an Office not Vacant de lure . . . 496
Retention of Incompatible Offices ........ 497
Refusal of the Cardinal's Oath 498
Neglect of Episcopal Consecration 499
Forsaking One's Post 500
Resignation of an Ecclesiastical Office into the
Hands of Laymen 501
Retention of Office Despite Privation or Removal 503
Neglect to Receive the Abbatial Blessing . . . . 503
Neglect of Profession of Faith 503
Title XIX. Abuse of Ecclesiastical Power or Office 505
Abuse of Ecclesiastical Power 505
Tampering with Diocesan Documents 506
Perfidious and Neglectful Handling of Official Acts 508
Attempted Bribery of Diocesan Officials . . .510
Overcharge of Taxes 511
Illegal Issuance of Dimissorial Letters by the Vicar
Capitular 512
Religious Superiors Granting Illegal Dimissorials . 513
Illegal Admission to Novitiate or Profession . . 514
Transgressions concerning Dowries and Notification
of the Ordinary 515
Religious Superiors Interfering with the Canonical
Visitation 517
Superioresses Violating Freedom of Conscience . 521
ALPHABETICAL INDEX 523
p
jle
I , Original fro m
UNIVERSITY OF WISCONSIN
THE PENAL CODE
BOOKV
c
S
INTRODUCTION
" Brutal laws brutalize a people," is a well known
dictum of Montesquieu. If this is true of all laws,
it is even more so of penal laws. For penalty means
pain or suffering, and if this is out of proportion with
the crime, it becomes an incentive to rebellion against
law, and finally against authority itself. Moderation
in the penal code, therefore, should be the keynote
of wise legislation.1 We say this, not as if we had
expected that the Code of Canon Law would fail in mod-
eration, but for the reasons which follow. Modern crim-
inology is too moderate ; it even eliminates the very notion
of penalty. This is due to an inevitable reaction. Legis-
lators had not always followed wise moderation or suffi-
ciently considered the physical and psychological con-
> dition of the delinquent. With regard to this point,
and more especially the treatment of youthful delin-
quents, the modern theories of criminology deserve
some consideration. On the other hand these the-
ories cannot claim universal, either scientific or dog-
matic, acceptance. For they are based on mere as-
sumptions and neglect sound philosophical principles,
-
<
lThU u truo of all, including tho purely technical decision of toe
prohibition Uwt, notwithstanding: U. S. Supreme Court.
I
G I Originalfiom
JUgie UNIVERSITY 0FWI5C0NSIN
2 THE PENAL CODE
which must necessarily lead to a sceptic attitude on the
part of jurists as well as philosophers.
The " Modern Theories of Criminality " 2 are crys-
tallizcd in two materialistic views, viz. : determinism
and transformism or natural selection. They investi-
gate the causes of crimes and then try to find pre-
ventive remedies for them. As to what crime is, they
neglect to define. Ferri says crime is " a phenomenon of
complex origin and the result of biological, physical,
and social conditions. " ■ The criminal, " being the
product of cosmic, biological, or social influences
which put him out of harmony with conventional
morality and cause him to disturb the recognized
aims of community existence, must be treated as a
ward of the State for the purpose of curing his im-
pairment and meanwhile keeping him sufficiently re-
strained so as to prevent injury to others."* But
"the old and still dominant thought is, as to cause,
that a crime is caused by the inscrutable moral free
will of the human being, doing or not doing the crime,
just as it pleases." B The criminal type, therefore,
either natural, or occasional, or emotional, or social,
or whatever it be — for there is a remarkable variety
of hues and shades and colorings among the vari-
ous propounders, — is rather a creation or miscrea-
tion of nature for which the criminal cannot be
held responsible. Imputability is eliminated. Con-
sequently, away with jails and penitentiaries;0 con-
vert them into state asylums, and abolish penal laws
9 This ii the title of a book pub- 8 L. c, p. jr.
lished by C. Bemaldo de Quir6s, t L. c, p. xr.
translated into English by Alfonso '■■ ) . c, p. viii.
de Salvio, Ph.D., Boston, 191a. al. c, p. 170.
oogle
Original from
UNIVERSITY OF WISCONSIN
INTRODUCTION 3
completely. That the penal code must undergo a rad-
ical change is evident on the basis of this theory.
" The public in general and the legal profession in
particular," we are told, " have remained either ig-
norant of the entire subject or indifferent to the en-
tire scientific movement, and this ignorance or indif-
ference has blocked the way to progress in adminis-
tration." 7
There we are. Inferiority is the signature of the
" deeply imbedded tradition," because science is mo-
nopolized by modern criminologists. But natural se-
lection has received a rather severe blow from modern
science, and the free will theory is not easily disposed of
yet. Even the criminologists find it rather difficult to fix
responsibility. " This constantly debated question is
proving unusually troublesome for our contemporaries
who have not been able to look at it from the correct
point of view. " 8
The " classical theory," as the modern theorists
benignly call the traditional, which is also the Catho-
lic view, assumes a moral and social responsibility,
based upon the notions of obligation, free will, and
personality.
It is not our task to refute determinism, i.e., the
theory that the human will is not free and that all man's
acts, including those that are apparently free, are ade-
quately and inevitably determined by their antecedents.
We leave this to the philosophers.9 What must be es-
pecially emphasized here is the connection existing be-
T L. c, p. ix. Mercier, A Manual of 'Modern
BL.C. p. x*a. Scholastic Philosophy (Engl, tr.),
9 See for instance, Urraburu, Inst. 1916, Vol. I, p. 365 ff.
FftflL Psych., IIL 1898, p. j.:- ff.;
jle
,1,., Original from
UNIVERSITY OF WISCONSIN
■
pi
4 THE PENAL CODE
tween guilt and penalty and the various purposes of the
latter illustrated in the course of our Commentary. Wc
pay no special attention here to the right of the Church
to employ coercion, for this shall be set forth under can.
2214. But one thing needs stressing, namely, that the
sentimentality of modern criminologists is not conducive
to public welfare. It would be much better for our
legislators to borrow correct ideas from the penal code of
the Church, which is at the same time a specimen of
true moderation and of the spirit in which penal laws
ought to be made and executed.
Concerning the sources (fontes) of the penal code, it
must be understood above all that the ancient sources
noxv have only an interpretative value (see can. 6). For
the Code is the sole authentic source of ecclesiastical law,
to the exclusion of all others, whether found singly or in
collections. Single penal laws were enacted at particular
as well as general councils, and some of them found their
way into collections.10 Gratian's Decree contains penal
laws dispersed throughout, and an attempt at syste-
matic treatment is made in Causae I-III. The fifth book
of the Decretals is more compactly, though not exclu-
sively, penal, as may be seen from title 33 on privileges.
After the "classical" period of Canon Law no system-
atic digest of the penal law was attempted, — if
we except the so-called "Reserved Cases" in the Bull
"In Coena Domini," — until the time of Pius IX. This
Pontiff revised the penal law, as far as censures are con-
cerned, in his well-known Constitution " Apostolkae
Sedis," of Oct. 12, 1869.
Other penal laws were scattered in the papal constitu-
10 Here the Penitential Books Kirche, 185 1; Schmitx, Die Buss-
may be cited, e.g., Was*er»chleben, backer und BusiditcipliM ier Kircke,
Die BussbUchtr der abcndl&nd. 1883.
v ,|,, Original from
UNIVERSITY OF WISCONSIN
>gle
INTRODUCTION 5
a
tions that emanated from time to time after the Clemen-
tine Collection, i. e.t after 1317. Among these the one
called "Ad vitanda scandala" of Martin V (1418) is of
special importance because of the distinction it makes
between excommunicati vitandi and tolerati. Otherwise,
as stated above, no exhaustive and complete redac-
tion was attempted until the promulgation of the new
Code.
The Code has taken cognizance of the postulates of
the French and German Bishops at the Vatican Council,
who wished to see the number of censures and reserved
papal cases diminished. n A comparison with the " Apo-
stolicae Sedis " shows this. Besides, the formulation of
the present penal laws has been modified to such an extent
that only a few former texts have been inserted entirely
(ex integro) in the new Code. This should serve as a
caution to the reader who is tempted to follow the old
interpreters.
The literature on the penal laws of the Church is con-
siderable, though now-a-days antiquated for more than
one reason. Besides the commentaries on Book V of
the Decretals, there are some specific treatises which
deserve mention. They are:
C. A. Thesaurus, S. J., De Poenis Ecclesiastuis,
1640, re-published with notes and additional laws up to
the year 1760, by Ubaldus Giraldi, whose edition of
1831 we use;
F. Suarez, Disputationes de Censuris, etc., Paris edi-
tion of 1861, t. xxiii;
F. Kober, Der Kirchenbann nach den Grundsdtzen des
llCfr. Granderith-Kirch, Ge- Ctut dts Codex Iurii Canonici,
schichte des Vatik. KonsiU, 1903, 1918, p. 153 t.
Vol. I, p. 441. P- 444; U. StuU, Per
oogle
Original fro m
UNIVERSITY OF WISCONSIN
6 THE PENAL CODE
St
Kanonischen Rechtes, 1863; id.. Die Suspension dct
Kirchendiener, 1862; id., Das Interdict, in the Archiv
fiir kath. K-R., 1869.
Since the promulgation of the " Apostolicae Sedis,"
i860, the following commentaries have been published:
D'Annibale, Commentarius in Const. Apostolicae
Scdis, Prati, 1894.
Avanzini, De Constitution*} Ap. Sedis, Romae 1883.
Hilarius a Sexten, Tractatus de Censuris Eccle-
siasticis cum Appendice de Jrregularitate, Moguntiae
1898.
Pennachi, Commentaria in Const. Ap. Sedis, 1883.
Of a more general character are the following works :
P. Hinschius, Das Kirchenrecht der Katholiken und
Protestanten in Deutschland, Vol. IV, 1888; V, 1895;
VI, 1897. The author, being a non-Catholic, could not
always free himself from prejudice, but none the less
his work is a fountainhead of historical and practical
knowledge.
Smith, Elements of EccL Law, Vol. Ill, ed. 3, N. Y.
(s. a.)
Useful for the student of secular criminal law is:
Kenny-Webb, Outlines of Criminal Law, New York,
1907.
Worthy of especial mention are:
J. Hollweck, Die kirchlichen Strafgesetze, 1899. He
formulates the whole penal law into 301 paragraphs and
then offers a commentary on the same.18
F. Wernz, S. J., who entitles Vol. VI of his lus
13 Msgr. Hollweck -was an ac- said, " like taking a stone out of a
tive member of the Commission on building if you remove one censure
tae Penal Code. We remember his or the other." We notice that Holl-
telling us how difficult it was to ar- week's arrangement baa beea
range these canons. " It is," he adopted by the Code.
jle
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
THE PENAL CODE
N
■
Decretalium, I us Poenale Ecclcsiae Catholicae, Rome 1913.
M. Lega, De Iudiciis Eccl.t Vols. Ill ct IV, 1906 ff.
Since the promulgation of the Code there have been
issued :
H. A. Ayrinhac, Penal Legislation, N. Y. 1920.
F. M. Cappello, S. J., De Censuris iuxta Cod. I. C-,
1919.
E. Eichmann, Das Strafrecht des Codex I. C, 1920.
A. Perathoner, Auditor S. R. R., Kirchliches Gerichts-
wesen und kirchl. Strafrecht, 1919 (for the most part
only a translation of the respective canons of the Code).
J. Sole, De Delictis et Poenis, Rome 1920,
Our Code divides the whole fifth book into three parts,
as follows:
Part I:
De Delictis •{
1. Nature of crime and its division.
2. Imputability and circumstances.
3. Attempted crimes.
Part II :
De Poenis
1. Nature, kinds, interpretation, appli-
cation
2. Power of inflicting: penalties.
3. Subjects of penalties.
4. Pardoning power.
5- Censures in general and particular:
excommunication, interdict, suspen-
sion.
6. Vindictive penalties for clergymen
in general and in particular.
1 7. Penal remedies and penances.
'le
Original fro ni
UNIVERSITY OF WISCONSIN
INTRODUCTION
Part III :
De Poenis in
Singula Delicta
■
1. Crimes against faith and the unity of
the Church.
2. Crimes against religion.
3. Crimes against ecclesiastical author-
ities, persons, and things.
4. Crimes against life, liberty, property,
good name and morals.
5. Crimen falsi, or forgery of docu-
ments.
6. Crimes in the administration and re-
ception of orders and other Sacra-
ments.
7. Crimes against the clerical and re-
ligious state.
8. Crimes in conferring, receiving and
dismissing ecclesiastical dignities,
offices and benefices.
9. Abuse of ecclesiastical power or
office.
gle
Original from
UNIVERSITY OF WISCONSIN
■
PART I
ON CRIMES
TITLE I
NATURE AND DIVISION OF CRIME
Can. 2195
§ x. Nomine delicti, iure ecclesiaatico, intclligitur
externa et moraliter imputabilis legis violatio cui
addita sit sanctio canonica saltern indeterminata.
§ 2. Nisi ex adiunctis aliud appareat, quae dicuntur
de delictis, applicantur etiam violationibus praecepti
eui poenalis sanctio adnexa sit
Can. 2196
Qualitas delicti desumenda est ex obiecto legis;
quantitas vero dimetienda non solum ex diversa gra-
vitate legis Jaesae, sed etiam ex maiore minoreve irn-
putabilitate aut damno illato.
Can. 2197
Delictum est :
i.° Publicum, si iam divulgatum est aut talibus
contigit seu vcrsatur in adiunctis ut prudenter iudi-
cari possit et debeat facile divulgatum iri;
2.0 Notorium notorietate iuris, post sententiam
iudicis competentis quae in rem iudicatam transient
9
jle
% ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
10 CRIMES AND PUNISHMENTS
%
aut post conf cssioncm delinquents in iudicio factam
ad norm am can. 1750;
3.0 Notorium notorietate iacti, si publice notum sit
et in talibus adiunctis commissum, ut nulla tergi versa-
tione celari nulloquc iuris suffragio excusari possit;
4-° Occultum, quod non est publicum; occultum
materialiter, si lateat delictum ip sum ; occultum for-
maliter, si eiusdem imputabilitas.
Can. 2198
Delictum quod unice laedit Ecclesiae legem, natura
sua, sola ecclesiastica auctoritas persequitur, requisito
interdum, ubi eadem auctoritas necessarium vel op-
portunum iudicavcr it, auxilio brachii saccularis ; delic-
tum quod unice laedit legem societatis civilis, iure
proprio, salvo pracscripto can, 120, punit civilis auc-
toritas, licet ctiam Ecclesia sit in illud competens ra-
tione peccati; delictum quod laedit utriusque so-
cietatis legem, ab utraque potestate puniri potest.
The Code first defines crime, then describes its quali-
ties and guilt, and then enumerates the various kinds of
crimes, so far as the forum internum and externum, the
ecclesiastical and civil court, are concerned.
A crime, in ecclesiastical law, is an external and morally
imputable transgression of a law to which is attached a
canonical sanction, at least in general.
1. Delictum is taken from the word delinquere (de and
linquere, to forsake, to leave, to omit) and means an
offence in the general sense. However, by common usage
the term is restricted to a public offence or crime against
the juridical order or law. Therefore it is called a trans-
gression of the law, whether divine or human, i. e., merely
ecclesiastical. It is the law, either eternal or positive,
'■-.
jle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2195-2198 II
that governs order, the relation of man to God and of
man to man, and any defection from that order con-
stitutes a frustration of the designs of Providence.
2. But the transgression which the ecclesiastical law
considers is not merely the guilty mind (mens rea), but
the act, — i. e., an outward manifestation of a vicious
intention, or a breach of the law as externally apprehen-
sible. This may be positive or negative, or, in other
words, it may consist in an act or in an omission. Thus
a sacrilege is a positive act, but neglect of pastoral duties
is an omission. It is essential to the notion of delictum
that it be an external act, either of speech or deed, al-
though it need not necessarily be provable.
3. Externality, however, does not exclude imputability,
and hence the definition contains the addition, morally
imputable. The vicious act, therefore, presupposes a
guilty mind (mens rea).1 Why? A transgression of
the law is an act, and the transgressor, therefore, is an
agent, and when that agent is intelligent and free, and
acts a* such, we say that the effects caused by such an
agent are to be imputed or credited to him. Because an
intelligent being has dominion over its actions, it is capa-
ble of moral proprietorship in the praise or blame justly
due to its deliberate acts, according as they are seen to be
good or bad. 2 In this feature crime shares the notion of
sin, for every crime is a sin, though not conversely. For
a sin (e. g., mental apostasy or heresy) may be committed
by the mind only, whereas a crime supposes an external
act.
1 English lawyers for nearly too Kenny-Webb, Outlines of Criminal
years have been familiar with the Law, 1907. p. 33.
maxim: " Actus non facit reum nisi 2 W. Hill, S. J., Ethics, 8th ed.,
mens sit rea," the origin of which i» p. 47-
attributcd to St. Augustine; see
jle
, ,|r> Original fro ni
UNIVERSITY OF WISCONSIN
12 CRIMES AND PUNISHMENTS
It may be asked whether imputability is required under
all conditions. In general there is no doubt that every
crime supposes personal imputability. An apparent ex-
ception seems to be the local interdict, which may affect
guilty as well as innocent persons. But provision for
these is made by can. 2276.
A more serious objection might arise from the exist-
ence of pure penal lazus, which many moralists assert.
However, in the first place, it would have to be proved
that these laws really are laws. We cannot regard the
prohibition of wine and beer, for instance, as a true law,
because it neither pertains to reason nor is it intended
for the public good, unless we identify the latter with
the aims of fanatics. Secondly, it would have to be
proved that the conscience does not feel guilty at all in
transgressing such penal laws, e.g., the constitutions of
religious communities. No matter what the constitutions
may say, it is a solemn and certain fact that religious
do feel the sting of conscience when they transgress the
rules laid down.8 Be that as it may, the Code does not
contain a single purely penal law.
4. But what does the addition " cui addita sit sanctio
canonica saltern indeterminate?" mean? The transgres-
sion is accompanied by penal sanction, at least in general
terms. This means that there is neither crime nor punish-
ment without a penal law.4 It is, therefore, as stated
above, the law which is infringed and which punishes.
Superficially considered, this appears quite plausible and
perhaps sufficient. Yet there are some philosophic©-
<•
a On this question sec Tiibinger dinationes non sunt proprie leges.
Q*art*lsckrift, 1900, pp. 204-381; (Thecl. Moral., I. I, tr. 4, c. 15. n.
1002, pp. 574-620. Layman. S. J.. 1.)
appears to bit the nail on the head 4 "Nullum crimen, nulla poena
when he says: "Si recte ottendi- sine lege poe*ali," was the adage of
inns, eiusmodi constitutiones aut or- the School; Eichniann, /. c, p. 27.
jle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 2195-2198 13
juridical questions involved in this simple answer. Thus
it may be asked, why the law punishes certain transgres-
sions, while it leaves others unpunished? Take, for
instance, the reading of forbidden books, which is not
punished generally (can. 1395), but only in particular
cases (can. 2318) ; hunting by clergymen (can. 138), etc.
Yet these forbidden actions cannot be called crimes in the
sense of the ecclesiastical law.
There is another element implied in the word crime:
it means a serious violation of the public or social order,
which, when disturbed, requires reparation. We may
indeed say that punitiveness or non-punitiveness forms a
test between civil and criminal procedure, or between
crimes proper and civil offences, and may even add, as a
further distinction the legal power of remitting the sanc-
tion, yet the intrinsic and doubtless first intended de-
marcation is the amount or degree of social disturbance.5
Sin may be a merely ethical transgression, but crime will
ever be an ethico-juridical offence against the order es-
tablished by law, and declared punishable at least in
general terms.
The sanctio canonica indeterminata signifies a penalty to
be meted out according to the good pleasure of the judge
or superior (can. 2217, § I, n. I). It follows that, al-
though no special penalty is provided for the transgres-
sion of a law, yet if that law embodies the provision that
the punishment of the transgressor is left to the prudent
judgment of the Ordinary, this is sufficient to mark
the transgression as a crime, provided the other neces-
5 Kenny-Webb, '. c, p. 3, enters to beg the question; for unless wo
upon this question thoroughly, yet assume that legal power to be abso-
whea he says that the final distinc- lute, it cannot remit penal sanction
lion between civil and criminal lies ad libitum or without the supposj-
" in the legal power of remitting the tion of justice or umc kind of law.
sanction " </. ft, p. 15 f.) he seems
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
14 CRIMES AND PUNISHMENTS
sary marks are not wanting. Instances of this kind are
enumerated in can. 2170, 2183, and 2391. There is one
exception to this general rule, however, viz., can. 2222,
§ 1, which, as shall be seen, is nothing but an external
corroboration of the idea of reparation and the supreme
law of the Church, viz., the welfare of souls.
§ 2 of can. 2195 ascribes the criminal character also
to the violation or the non-observance of a precept given
under a penal sanction. A specimen of such a precept is
that mentioned in can. 2173 and 2176. But the pre-
cept must have been duly given and intimated according
to can. 2310. Besides, the essential features of a crime
must not be sacrificed in these violations, which conse-
quently must be external and imputable.
Can. 2196 establishes the quality and determines the
grievousness of crimes (qualitas et quantitas). Moralists,
when speaking of the different species of sin, are wont
to lay down a threefold rule for determining them.
Two of these rules coincide with the quality of crime
stated in the first clause of our canon. Crimes differ
from one another in quality by reason of the different ob-
jects of the law. However, since every law has in view
special acts, it is evident that crimes differ specifically
according to their formal objects. Thus the crimes
against faith and unity of the Church differ from those
against religion, even though faith belongs to religion,8
the sins against property and life differ from one another,
although all are directed against the virtue of justice, be-
cause they are morally specified by their formal objects.
The gravity of a crime depends on the conditions men-
tioned, viz.t the objective gravity or importance of the
law violated, the greater or less imputability, and the
<
fl See can. 3314, 3319, and can. 2320-2329.
Go >gle
f ■ j , Original from
UNIVERSITY OF WISCONSIN
-
■
9
CANON 2195-2198 15
damage done. The objective gravity of a law can easily
be gauged by the gravity of the penalty attached to it.
A law provided with a penal sanction {lex perfecta) is
manifestly more important than a law destitute of such a
sanction. Besides, the subjective condition of the trans-
gressor must be considered, of which more under Title II.
Lastly, an action which might be considered less weighty
in its nature and on account of diminished imputability,
might still entail very serious consequences7 and thus
enhance responsibility. English and American criminal
law distinguishes between indictable and petty offences,
and the former are classified as treasons, felonies, and
misdemeanors.8 There can be no doubt that this law
is bottomed on the natural distinction of heinousness.
Consequently, also, the procedure is different.
PUBLICITY OF CRIMES
Can. 2197 distinguishes three kinds of crimes, — public,
notorious, and occult.
1. A crime is public if committed under, or accom-
panied by, circumstances which point to a possible and
likely divulgation thereof. Canonists9 enumerate dif-
ferent degrees of publicity: almost occult (pene oc-
cultum), which is known to at least two witnesses;
famosum or manifestum, which not only can be proved,
but is known to many; and, finally, notorium. From
this it will be seen that a real intrinsic distinction be-
Cl
TTaVe, for instance, an operation gtn; the Roman: facta, dicta, scrip-
performed by an unskilled surgeon to, consilia; 1, 16, Dig. 48, 16; ice c.
or midwife, or an innocent hunting 19, Di«t. i, dt Poenil.
trip by £ clergyman. » Reiffenstuel, V, I, *4» *•'•
S Cfr. Kenny-Webb, /. c, p. 84 ff. Scbmalzgrueber, V, 1, n. 1 fi. ; Holl-
The French law distinguishes crimes, week, 1. c, p. 67 i-\ Wernz, /. C,
dtlits, contraventions; the German: VI, n. 17, p. 21.
Vtrbrtchtn, Vergehtn, Uebertretun-
>Ie
J ^ Original from
UNIVERSITY OF WISCONSIN
i6
CRIMES AND PUNISHMENTS
■
tween a />uW«V crtW and a crime notorious in fact can
hardly be established.10 (We shall point out one distinc-
tive trait below.) To fix the number of persons re-
quired for making a crime a public one a is rather
hazardous, though it may furnish a certain rule which will
enable the judge to decide as to the secrecy or public
character of a crime. Many canonists hold that at least
sis persons in a community, even the smallest (for in-
stance, a religious house of 10 or 12 inmates), must know
of a crime, to render it public.12 Nor should there be
any doubt about the character of the persons who are
witnesses to the crime. Furthermore, the interest they
may have in the crime should be weighed.18
2. A crime is notorious by notoriety of law {notorietate
iuris) if it has become an adjudged matter, according to
can. 1902-1904, or judicially confessed, according to can.
1750. Extrajudicial confessions do not render a crime
notorious by notoriety of law. Here we must take issue
with the assertion that the Code acknowledges such con-
fessions. Thus it has been stated 14 that it would be a
notorium juris if the bishop or vicar-general would catch
a clergyman in flagranti! The Code contains nothing to
that effect, but requires (can. cit.) a confession before
the judge sitting in court.
A crime is notorious notorietate facti when it is pub-
10 The sources are not consistent;
see c. 17, C 2, q. 1; c. 8, X, III, a,
where the notorium is called publi-
cum and manifestvm.
11 Werni, /. c, VI, p. 22, note 35.
IS Reiffenstuel, V. i, n. 253; un-
less, he flays, it has been committed
in the presence of the competent au-
thority who enjoys power in foro
txterno,
13 Kichmnnn. /. c, p. 32; for in-
stance, in adultery.
14 Hoi 1 week, /. c, p. 67, note 4,
quotes Reiffenstucl, V, 1, 267; but
Reiffenstuel is cautious enough not
to make such a general statement,
for he demands that the judge sur-
prise the delinquent before wit-
nesses. This is evident, otherwise
the judge would at the same time
be the accuser. That the pastor
does not constitute a public person
in judiciary matters is clear.
jle
Original fro m
UNIVERSITY OF WISCONSIN
a
N
■
CANON 2195-2198 17
licly known and has been committed under such circum-
stances that it cannot be concealed by any artifice or be
excused by any legal assumption or circumstantial evi-
dence. The term nulla tergiversatione celari is equiva-
lent to the other used in the Decretals.15 The second
clause refers to imputability, which may be lessened by
extenuating circumstances, according to can. 2201-2206.
Hence not only the fact itself must be notorious, but
also its criminal character.18 Thus, for instance, the fact
of alienation may easily be proved by a legal deed, but
whether it was criminal must be ascertained by other
means ; because it may be that the administrator or pro-
curator had due permission and therefore acted lawfully.
It is this element of inexcusability or of knowledge of the
criminal character of the deed that appears to distinguish
a public from a notorious crime. For the text manifestly
lays stress on divulgation with regard to public crimes
and emphasizes the criminal character as known and in-
excusable.
3. Every crime which is not public, says our text, is
occult or secret. The Code distinguishes a twofold
secrecy, viz.: merely material (tnaterialiter occultum-),
which exists when the fact is unknown, or known only to
the perpetrator and a few reticent persons; and formal
(formaliter occultum), when the moral and juridical
guilt is unknown. An example may illustrate the distinc-
tion. If a percussor clericorum beats a pastor at night,
his identity may remain unknown, though the effects point
to a crime; if the priest was beaten in a public row, there
may be a reasonable doubt as to the real perpetrator.
The authors,17 therefore, assumed that a crime committed
at night could not be notorious or public. However,
18 C. 10, X, III, 2. IT Schmalzgrneber, V, it n. 5.
lfl Reiffenstuel, V, I, n. 365; Holl-
weck, /. c, p. 68.
GO ;^IC
s -l] ^ Original fro m
UNIVERSITY OF WISCONSIN
Q
18 CRIMES AND PUNISHMENTS
this theory cannot be accepted in this general sense. Take,
for instance, a sacrilegious burglary.18 If a sufficient
number of persons witnessed such a crime and recog-
nized the perpetrator, the crime could not be styled oc-
cult. Neither does it seem true that a duel is always a
secret crime, as some maintain.10 For although duels are
generally held in a secret place, yet there are, as a rule,
witnesses and signs which admit of a perfectly safe judg-
ment that a duel has taken place. 20
ECCLESIASTICAL, CIVIL, AND MIXED CRIMES
The Code does not distinguish between private and
public crimes, as far as prosecution is concerned, but it
draws a line of demarkation between* ecclesiastical, civil,
and mixed crimes.
As ecclesiastical crimes were acknowledged manifest
and serious transgressions of the law of the Church,31 and
as typically canonical crimes were considered : homicide,
moechia, and apostasy. However it would-be vain to look
for a fixed list of so-called ecclesiastical crimes. The fact
is that, since the fourth and fifth centuries, besides the
three above named crimes, usury, simony, crimen falsi,
and intercourse with excommunicated persons were also
adjudged by the ecclesiastical courts.82 The Decretals
enumerate quite a list of crimes subject to ecclesiastical
judicature : apostasy, heresy, usury, simony, sacrilege, in-
cest, adultery, bigamy, usurpation of ecclesiastical power,
and so forth, so that the whole Decalogue was more or
is Kenny- Webb, /. c, p. 171. signs, nor do they, as a rule, male*
10 Ilollwcck, /. C; p. 66, note 3. any accret of tbe duel.
20 When students enter the school- 2lCfr. cc. 31, 22, C. u, q. 3.
room with seared and bandaged 22 Cfr. Hinschius, I. c, IV, p.
faces and smelling from carbolic 746.
acid, there seem to be " loud "
jle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2195-2198 19
less included.28 This is not surprising, since, with the
exception of purely political crimes, the others were all
taken to imply the ratio peccati, which the Church is
certainly competent to judge.24 Our Code greatly reduces
this list, as may be seen from the bare enumeration of
the titles, v%z.t Title XI, Title XIII, and Titles XVI-XIX.
Crimes that violate an ecclesiastical law are prosecuted
by ecclesiastical authority, as the nature of the crime, and,
we may add, the nature of the Church as an autonomous
society, require. If the Church should deem it necessary,
or opportune, she may ask for the assistance of the secu-
lar power. This aid, of course, will be offered by the
State only in countries where the separation of the two
societies has not yet become an accomplished fact, and
where the mutual relations of both are regulated by con-
cordats.
The text: "requisite interdum auxilio brachii saecu-
laris," has a diplomatic tinge. Formerly, e. g., in the time
of Innocent III or Boniface VIII, it went without saying
that the State was obliged to lend a helping hand to the
Church. The secular sword was supposed to be at the
disposal of the Church (ad nutum ecclesiae) and the
Roman Pontiffs did not hesitate to remind rulers of
their duty. Thus heretical disturbances, which usually
caused also civic disorders, were frequently quelled by the
civil authority at the request of the Church.25 The same
course was taken in prosecuting those who attacked ec-
clesiastical personages of higher rank.26
The separation of State and Church, brought about by
..,
2« Sec lib. V, Deerelal,; Eich- lation between Church and State,
maim, /. c, p. 13. zs Cfr. cc. 9, 13, x, V, 7; c. n,
»4 C. 13, Novit., X, n. 13. Even 6°, V. 2; see Scholz, Publizistik mm
political crimes were looked upon as Zeit Philipps dts Schonen und Bon'\~
heinous and bad to be considered /« Vlll. (Stutx, K.-R. Abhondl.)
as such because of the intimate re- 2< See c. 5, 6°, V, 9.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
so CRIMES AND PUNISHMENTS
the religious breach of the XVIth century, lessened the
influence of the spiritual upon the temporal society.
Royal absolutism grew jealous of the power of the
Church and fomented aversion towards her in quarters
which had every reason to sustain her authority. Thus
it came about that the rights of the Church were often
trampled under foot and she had no longer the means to
enforce them. This is an actual condition, but it is not
the proper relation intended by the Governor of the Uni-
verse, who desires peaceful and harmonious cooperation
between the two societies, sovereign in their respective
spheres.87 Hence it is that the Church still claims the
right of being helped and supported in the attainment of
her ends. Evil-doers in the bosom of the Church can
hardly be desirable citizens, and permanent tranquillity
can be established only by the elimination of disorderly
elements. This requires a firm and effective means of
righting wrong whenever it makes itself felt, even in the
ecclesiastical order, and the civil power should be aware
that the civil order must necessarily suffer if and when-
ever the ecclesiastical order is seriously disturbed.
Whilst the Church claims the right of punishing crimes
of a merely ecclesiastical character and of invoking the
civil power in the exercise of this right, she avoids inter-
ference in the prosecution of merely civil crimes, such as
treason, revolution, counterfeiting, evading the payment
of duties and taxes, etc. These crimes fall within the
exclusive purview of the State, provided the clerical privi-
lege is safeguarded according to can. 120, where it has
not been abolished by concordats or lawful custom. But
the text adds : " although the Church, too, would be com-
petent concerning such crimes, in as far as moral guilt
17 See Leo XIII, "Immortal* Dti," Nov. i, 1885.
Go >gle
j , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2195-2198 21
is concerned " Fot moral guilt touches the soul and
consequently the salvation of men, which belongs to the
spiritual power. Just here it may be perceived how well
the State would fare if it cooperated with the Church.
The authority of the State would be gTeatly strengthened,
men would realize that a crime against the civil authority
is abhorred also by the representative of Him from whom
all power is derived,28 and thus be made to understand
that they are not mere cogs in a machine, but responsi-
ble members of an organism which has the spiritual power
behind it
A third class of crimes is called mixed. It comprises
such crimes as offend against the moral-juridical order of
both societies. Both Church and State are interested in
the prosecution of crimes which include offences against
religion in general, as mentioned in Title XII, crimes
committed against life, liberty, property, good name
and morals, as stated in Title XIV, forgers of official
documents, as mentioned in can. 2362, because ecclesias-
tical documents may also serve state purposes.29 These
mixed crimes may be prosecuted by both the civil and the
ecclesiastical power, with due regard to prevention 80 and
to the ruling of can. 1933, § 3, concerning laymen, who,
after being duly punished by the civil authority, should
not be prosecuted by the Church.
28 Rom. 13, 1. are also mentioned in the civil code
«Cfr. Kenny-Webb. /. c, p. ftflj (»'W.).
molt of the so-called mixed crimes 20 See can. 1553, | j; can. 1568.
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
TITLE II
IMPUTABILITY, AGGRAVATING OR EXTENU-
ATING CIRCUMSTANCES, AND JURIDICAL
EFFECTS OF CRIME
Imputabiliiy was explained above as moral proprietor-
ship in the praise or blame justly due to deliberate acts
performed by a free agent. Hence a crime, to be imput-
able, must proceed from a deliberate intention, which pre-
supposes knowledge and free will. The Code first ex-
plains imputability in general and the excusing, extenuat-
ing or aggravating influences bearing upon it, then sets
forth some circumstances or conditions of this influence,
in particular, the aggravating circumstances, then con-
currence in crime, and, lastly, its juridical effects.
E
IMPUTABILITY IN GENERAL
V
-
Can. 2199
Imputabilitas delicti pendet ex dolo delinquents
vel ex eiusdem culpa in ignorantia legis violatae aut in
omissione debitae diligentiae; quare omnes causae
quae augent, rninuunt, tollunt dolum aut culpam, eo
ipso augent, minuunt, tollunt delicti imputabilitatem.
Can. 2200
§ 1. Dolus heic est deliberata voluntas violandi
legem, eique opponitur ex parte intellectus defectus
cognitionis et ex parte voluntatis defectus libertatis.
22
jte
£ * ^ , ,L» Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2199-2220 23
§ a. Posita externa legis violatione, dolus in foro
externo praesumitur, donee contrarium probctur.
The imputability of a crime depends on two essential
conditions of the perpetrator, viz., (1) deliberation
(dolus), and (2) speculative or practical guilt (culpa).
Dolus or malice is here taken as the deliberate will of
transgressing the law, as opposed to lack of knowledge
on the part of the intellect, and to deficiency on the part
of the will. This follows from the complex nature of
human acts which require knowledge as well as will
("nihil volitum nisi cognitum") l and hence, where the
voluntary element is entirely wanting, there can be neither
dolus nor culpa, and where volition is impeded, this de-
fect diminishes the guilt.
But the text adds (can. 2200, § 2), that if the fact of
the violation of a law is certain, the intention or dolus
is presumed until the contrary is proved. Hence the
proof of ignorance rests on the perpetrator. This is also
recognized by civil law. For criminal liability may exist
even though the offender had no intention to commit the
particular crime which he did in fact commit, and conse-
quently it suffices to commit any crime, whatever it may
have been. a This is the meaning of the legal maxim :
"Ignorance of fact, not of the law, excuses."* How
far deliberation and knowledge may affect culpability or
immunity from criminal punishment depends on the
mental condition of the perpetrator, but also on the word-
ing of the law, as is evident from can. 2228 f. This
supposes that for any punishable act there are required:
1 Cfr. S. Thomas, Summa Theot., 2 Kenny-Webb, /. e., p. 36.
I-II, q. 6; W. Hill, Ethics, 8th ed.f a Rtg. luru 18 in 6°; cfr. Reg.
p. 46; according to general usage Iuris *3 in 6°: "Sine cut fa. nisi
in English, the term voluntary subsit causa, non est aliquis punitn-
mcans lit-.. 4us,"
jle
£ * ^ v ,| , Original from
UNIVERSITY OF WISCONSIN
24 CRIMES AND PUNISHMENTS
Knowledge that what the offender is doing is criminal,
and will or power of volition, i. e., the offender must be
able to abstain from doing what he does: if either con-
dition fails, immunity from criminal punishment will
arise. This is sound theological as well as juridical doc-
trine, provided always that the law may add a specific
clause as to the degree of knowledge or malice, as can.
2229 plainly indicates.*
The culpa, as distinguished from the dolus, may arise
from ignorance and carelessness. Concerning ignorance,
see can. 2202. The omissio debitac diligentiae may be
the result of carelessness, or of negligence, or of thought-
lessness. Different occupations and conditions require
more or less diligence.
Thoughtlessness must, however, be in one or the other
way connected with volition or the exercise of the will,
or what the theologians call voluntariutn in causa. For
in order to render an act imputable it is required that the
evil effect be foreseen, at least in a general or confused
way, that the agent had it in his power or was free to
posit the cause, and, lastly, that ;here was an obligation
to avoid the evil effect that followed the cause.
Any act, therefore, which is not a human act, vis., one
that does not proceed from reason and free will, cannot
be imputed to a human agent. But since either reason
or free will may be affected, not entirely, but partially,
the degree of imputability or guilt is proportionate
to the mental state in which the agent was at the time
he committed the criminal act. Hence, § 2 of can.
2199 very appropriately states that every cause that in-
creases, diminishes, or takes away the dolus or culpa, also
* Kenny- Webb, /. c, p. 55. If stood that the degree required for
the low determine! no further de- constituting 1 mortal «in 11 »uf-
gree of dolus or culpa, it is under- 6cient Hollweck, /. c, p. 75, note 6.
gle
( * ^ ^ vis* Original from
UNIVERSITY OF WISCONSIN
CANON 2201-2202 25
increases, diminishes, or takes away responsibility for the
delictum. This, of course, presupposes the existence and
exercise of freewill, but it does not exclude the possibility
of so-called biological or physiological influences on the
morality of human acts. No psychologist denies the pos-
sible alteration of the ethical element by reason of the
composite nature of man. An eminent philosopher has
stated it as follows : " That there are certain unfortunate
individuals who, owing to mental derangement, are irre-
sponsible, is beyond doubt and has never been disputed.
That there are others who, while able to form correct
judgments on speculative matters, are incapable of resist-
ing solicitations to evil, does not contradict any point of
our doctrine but seems rather to be established by experi-
ence. It may not be even impossible that there exists,
as Lombroso professed, ' a criminal type/ that is to say,
monsters irresistibly given over to crime who can be rec-
ognized by certain anatomical, physiological, and patho-
logical characteristics. Such characteristics are to be
found more or less numerous among most criminals.
Further, we may also admit, though the experiments on
which this assertion rests must be viewed with caution,
that a person may under the influence of hypnotic sugges-
tion lose the use of his liberty. All these facts are not
incompatible with the theory of free-will, as the excep-
tion does not disprove the rule." •
DEFECTUS COGNITI0NIS
■
Can. 22or
a
c
§ i. Delicti sunt incapaces qui actu carent usu
rationis.
-
s D. Mcrcicr, A Manual of Mod- Tranal., 1917, Vol. H, p. aas i.
em Scholastic Philosophy, Engl.
* ] -, Original fro ni
■OOgie UNIVERSITY OF WISCONSIN
26 CRIMES AND PUNISHMENTS
§ 2. Habitualitcr amcntes, licet quandoque lucida
intervalla habcant, vcl in ccrtis quibusdarn ratiocina-
tionibus vel actibus sani videantur, delicti taxnen in-
capaces praesurauntur.
§ 3. Delictum in ebrietate voluntaria commissum
-
aliqua imputabilitate non vacat, sed ea minor est
quam cum idem delictum committitur ab eo qui sui
plene compos sit, nisi taxnen ebrietas apposite ad
delictum patrandum vel excusandum quaesita sit;
violata autem lege in ebrietate involuntaria, impu-
tabilitas exsulat omnino. si ebrietas usum rationis
adimat ex toto; minuitur, si ex parte tantum. Idem
dicatur de aliis similibus mentis perturbationibus.
§ 4. Debilitas mentis delicti imputabilitatem min-
uit, sed non tollit omnino.
Can. 2202
■--.
§ 1. Violatio legis ignoratae nullatenus imputatur,
si ignorantia fuerit inculpabilis ; secus irnputabilitas
minuitur plus minusve pro ignorantiae ipsius culpa-
bilitate.
§ 2. Ignorantia solius poenae imputabilitatem de-
licti non tollit, sed aliquantum minuit.
§ 3. Quae de ignorantia statuuntur, valent quoquc
de inadvertentia et errore.
The degree of imputability is in proportion to the de-
gree of dolus and culpa. Dolus or intention supposes a
normal condition of the reasoning faculties, which in turn
depends on organic conditions, which may be either ac-
tual or habitual, i. e., more or less permanent. Besides,
even in a normal condition ignorance may play a part
in forming an imputable judgment. Can. 2201 treats
>Ie
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 2201-2202 27
of abnormal organic conditions, whilst can. 2202 has ig-
norance in view.
1. Incapable of committing a crim-e are those wlw are
actually deprived or destitute of the use of reason.
Hence acts committed in sleep or in a frenzied or furious
state of mind cannot be imputed.0 The text also in-
cludes insanity.
2. Those habitually insane T are presumed to be in-
capable of committing a crime, even though they may
have lucid moments or may appear sane as to certain
processes of reasoning or certain acts. Insanity is a
disturbance of the mental faculties and, as such, influences
the legal aspect of crime. Modern criminologists attribute
insanity to pathological conditions and speak of the epilep-
tic, the neurasthenic, and the psychopathic states*
Moral insanity, so-called, " in which all the upright senti-
ments are eliminated, while the intelligence presents no
disorders,"8 is inadmissible and de facto rejected in
American and English law. There are, on the other hand,
different degrees of mental unsoundness, but " the very
difficult practical question as to where the line of demarca-
tion should be drawn " is yet unsolved. 10 Two classes
of mentally unsound persons are: (a) lunatics over whom
the threats and prohibitions of the criminal law exercise
no control ; and (b) those whose insanity is so slight that
they would not yield to it if a policeman were at their
elbow.11 This rather technical distinction has been ac-
cepted by jurists ever since the case of Daniel McNaugh-
ten, a. d. 1843. We quote the replies given by the
■
aCfr. cc. i, 3. Dist- 6. BDe Quir6s, /. c, p. 5a ff.
TC. 12, C. 15, q. 1, would inflict '-•Ibid., p. 9.
a milder penance after the return 10 Kenny- Webb, f. f., p. 48.
of normal conditions, which is in- 11 Ibid.
consistent with our Code.
jle
£ " ^ 4 ,L» Original from
UNIVERSITY OF WISCONSIN
28 CRIMES AND PUNISHMENTS
judges, because they not only are the norm of modern
criminal law, but are also, to some extent, in accord with
our Code.
(I) Every man is presumed to be sane, and to pos-
sess a sufficient use of reason to be responsible for his
crime, until the contrary has been proved to the satisfac-
tion of a jury.
(II) To establish a defence on the ground of insanity,
it must be clearly shown that, at the time of committing
the act, the party accused was laboring under such de-
fect of reason, from disease of the mind, as not to know
the nature and quality of the act he was performing, or if
he did know, not to know that what he was doing was
wrong.
(III) As to his knowledge of the wrongfulness of the
act, the judges say: " If the accused was conscious that
■
the act was one which he ought not to do, and if the act
was at the same time contrary to the law of the land, he
is punishable." Thus the test is the power of distinguish-
ing between right and wrong, not, as was once supposed,
in the abstract, but in regard to the particular act com-
mitted.
(IV) When a criminal act is committed by a man
under some insane delusion as to the surrounding facts,
which conceals from him the true nature of the act he is
doing, he will be under the same degree of responsibility
as if the facts with respect to which the delusion exists,
had been as he imagined them to be.
We say, these principles agree with the new Code to
some extent, because on account of the rules governing
imputability these rules may be accepted in globo. How-
ever, the Code is very liberal in presuming immunity from
criminal intent or responsibility, even for lesser or inter-
■"■
jle
% ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 2201-2202 39
mittent insanity. But this is only a pracsumptio iuris and
not a pracsumptio iuris et de iure.13 Hence the burden
of proof is thrown upon the defendant, 1. e.t the one ac-
cused of crime. The proof of insanity is furnished by the
preponderance of evidence. Experts are to be called in
and the rules laid down under can. 1762-1805 applied.
All the persons mentioned in can. 2201, § 2, are to be
treated as habitually insane, which, of course, presupposes
a morbid disease and not merely an irrational impulse.
However, such an impulse, which sometimes takes on the
nature of an irresistible force, may only be the symptom
of a latent though not violent habitual madness, and in
that case it must be treated like habitual insanity, al-
though courts of some states of our country and England
exclude it as a plea of defence. 1S
One form of insane impulse is kleptomania, because the
impulse to steal really seems to arise from actual in-
sanity. lA
With regard to hypnotism note that it has not yet be-
come a subject of sufficient judicial consideration to jus-
tify the attempt to formulate any rules 10 for it, and
hence it must be treated like intoxication and passion,
which are to be considered as to their antecedent causes
and the intent.
3. Intoxication or drunkenness, if deliberate, does not
entirely take away responsibility for a crime committed in
that state, although it diminishes imputability, thus render-
ing the crime less offensive than when committed in the
state of complete responsibility, unless indeed the state of
intoxication was brought about purposely in order to
commit or excuse the crime. Responsibility is to be fixed
12 See can. 1825-1838. « Ibid.
13 Kenny- Webb, J. c, p. 5* 15 Ibid., p. 55-
oogle
f^ ^ s ,1,., Original fro m
UNIVERSITY OF WISCONSIN
3o CRIMES AND PUNISHMENTS
according to the degree of drunkenness, because it is this
that determines the measure of voluntariness. But to ex-
cuse entirely a deed done in the state of voluntary intoxi-
cation would be to excuse one wrongful act by another,
which neither the ecclesiastical nor the civil law 18 can
permit. For no one is allowed to put himself into a state
of irresponsibility or to deprive himself of the use of
reason without adequate cause. There is no difference be-
tween intoxication produced by alcoholic liquor and the
state superinduced by certain drugs, such as opium, mor-
phine, and cocaine. Even blamcable drunkenness may
sometimes have the effect of diminishing criminal responsi-
bility. Thus it may easily cause a mistake in regard tn>
facts which in itself excuse an otherwise unlawful act.
Take, for instance, a percussor clericorum, who in a
drunken condition is not aware of the clerical char-
acter of his victim. Besides, intoxication may also lessen
the guilty intent necessary for a particular crime. Thus
murder in the first degree may be reduced to homicide.
An exception is intentional drunkenness brought about for
the purpose of committing a crime. But this supposes
that the criminal had the wicked act in mind before get-
ting drunk. Thus a pregnant woman who drank im-
moderately to brace herself for committing abortion
would have no defence or excuse; on the contrary she
would commit two distinct crimes.
The next clause of § 3, can. 2201, mentions involun-
tary intoxication. This, if it takes away the use of
reason, also takes away responsibility, and diminishes im-
putability in proportion to the diminished use of reason.
Biblical examples are well known. XT Such a state may be
caused by malicious companions or by the administration
18 Ibid. it Noah, Gen. 9. ™ '-; Lot, Gen.
19, 33 ff.; »ec c. 9, C. 15. Q- »•
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON Z2OI-2202 31
of alcohol for medical purposes, or by exceptional suscep-
tibility to stimulants. It will be no defence, however,
for a person to say that he did not intend to get drunk,11
although the fact may lessen his imputability in the court
of conscience. The degree of responsibility is gauged by
the control one has over his reasoning faculties.
The text adds : " Idem dicatur de aliis similibus mentis
perturbationibus." These " other similar disturbances of
the mind " may be caused by extraordinarily strong emo-
tions of the irascible power. Thus the loss of dear ones
may cause a sudden excitement, external natural causes
such as fires, earthquakes, shipwrecks, etc., are apt to
create a panic, and so forth. Hither also belong spirit-
istic and hypnotic suggestions and evocations which tend
to upset the nerves.
4. Finally the Code says that imbecility of mind les-
sens, though it does not take away, responsibility. Among
imbeciles are reckoned the minus habentes, the half-
stupid and, we believe, also such as are physically very
weak, because there can be no doubt that great feeble-
ness of the body also affects the mind, no matter of what
age the person may be. Concerning age consult can.
2204.
Canon 2202 has in view ignorance, which is not
nescience, or absence of all knowledge, but properly means
an absence of knowledge that is morally imputable to the
free agent. 19 Such ignorance may be culpable or inculpa-
ble, and hence our text says
1. That inculpable ignorance of the law renders one
immune from responsibility for transgressing it, while
culpable ignorance diminishes the degree of imputability
18 Kenny-Webb, /. c, p. 55 f. tia sciential moraliter debitat"; cfr.
1* Arregui, Summarium Thiol. c. 9, X, V, 36: "si scirt debuisti."
Moral., 19x9. ed. 4, n. xi: " Caren-
§le
v ,1,., Original from
UNIVERSITY OF WISCONSIN
32 CRIMES AND PUNISHMENTS
St
only in proportion to the obligation one is under of ac-
quiring the necessary knowledge. Here the distinction
between vincible ami invincible ignorance is properly
employed, whereas the distinction between antecedent and
consequent ignorance has little or nothing to do with our
text, as all agree that antecedent ignorance is not imputa-
ble Thus if a clergyman goes hunting, he may be rea-
sonably ignorant that hunting is forbidden, because really
only the chase in the proper sense is forbidden, not simple
hunting. He may also be ignorant about the game laws,
and become aware of the unlawfulness of hunting only
after a fine has been imposed.
Ignorance is vincible if it can be removed by the use
of ordinary means proportionate to the matter and the
person who has to employ these means. If it cannot be
remedied except by extraordinary means which are re-
quired neither by the thing itself nor by the state or
vocation of the person who is supposed to be obliged to
use such means, ignorance is called invincible.
There are different degrees of vincible ignorance:
affected, when one purposely avoids knowing the laws, so
as to escape the burden of observing them; supine
or crass, when one is ignorant of the law through indo-
lence or carelessness. Both affected and supine ignorance,
being consequent, render a crime simply involuntary."
2. Ignorance of the penalty does not take away imputa-
bility, but to some extent diminishes it. The reason is
that penalty indeed deters from committing a crime too
readily, but the mens rea, the remorse of conscience, is
20 Ignorance, if purely affected, bears upon the necessary or re-
approaches dolus, and is still fur- quired knowledge of the law; iffnor-
ther distant from culpa, as far as ance enters dolus as veil as culpa;
this signifies carelessness; but it is see c. 102, C. 11. q. 3; concerning
related to culpa, inasmuch as it penalties see can. 2329.
*Ie
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2201-2202 33
there and convicts the perpetrator of sin. However,
since the penalty is, as a rule, proportionate to the gravity
of the crime, it is but natural that ignorance of the
penalty should diminish responsibility. What kind of
ignorance is here intended is not explicitly stated. But
since the term is used generally, it appears to include both
vincible and invincible ignorance, as far as responsibility
is concerned, though not as far as incurring the penalty is
implied.
3. What has been stated with regard to ignorance, must
also be applied to inadvertence and error. Hence if one
is not sure that a certain occupation or action may
cause harm, he is supposed to be innocent of guilt.21
The same is true concerning error, for instance, if one is
mistaken about the law prohibiting intercourse with ex-
communicato vitandi, he does not incur the penalty of
excommunication.28 Note, however, that error and in-
advertence as well as ignorance excuse from criminal
responsibility in a higher or lesser degree according to
the wording of the law. " For laws which have the
clause: scienter praesumpserit, ausus fuerit, require a
higher degree of knowledge and attention, and on the
other hand excuse more easily from criminal intent. This
is a decidedly superior concept of law and responsibility
than we find in secular codes. For, according to civil
criminologists, a mistake in regard to the law, even though
it be inevitable, does not afford an excuse for crime. 2*
This is quite intelligible, for the State has in view chiefly
the public order.
SiC. 33, C. 22, q. 4: "Hoc est MC ioa, C. 11, q. 3.
innocenttm esse, ignorore quod no- 23 Compare can. 3365, 2369. *37*.
teat.' 2* Kenny-Webb, /. c, p. 62.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
34 CRIMES AND PUNISHMENTS
CARELESSNESS
Can. 2203
§ 1. Si quis legem violaverit ex omissione debitae
diligentiae, imputabilitas minuitur pro modo a pru-
denti iudice ex adiunctis determinando ; quod si rem
praeviderit, et nihilominus cautiones ad earn evitan-
dam omiserit, quas diligens quivis adhibuisset, culpa
est proxima dolo.
§ 3. Casus fortuitus qui praevideri vel cui praeviso
occurri nequit, a qualibet imputabilitate eximit.
Carelessness, although it may approach dolus, is, ac-
cording to Can. 2199, rather to be referred to culpa or
lack of attention. But since many circumstances which
puzzle the judge may surround the agent as well as the
criminal act, he is to decide according to the common
or ordinary circumstances. But if carelessness amounts,
as it were, to forethought, it is more culpable. The text
therefore says, a breach of law committed by omitting tlie
required diligence is less imputable, but the degree of
imputability is left to be fixed by the judge, who must
weigh all the circumstances. The judge, therefore, is
not to set up the law, but to consider whether the act
is punishable by law, i. e.t whether a law exists that would
punish such an act, at least in general.
Diligence is taken here as the contrary of negligence;
and therefore omission of it spells negligence, or care-
lessness, or thoughtlessness, etc. All these terms clearly
refer to the intellectual (either speculative or practical)
attitude of man with regard to a determined law, e.g.,
the prohibition of homicide. If the term " debita," is
added to diligence, this cannot mean all possible diligence
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2203 35
a
or attention, for to use such is not in the power of man;
nor ie it the intention of the lawgiver, else we should have
to recur to the Sovereign Pontiff in each individual
case. " Diligence therefore must be gauged by the object
itself, e.r rei gravitate. For greater diligence is required
in important cases than in cases of a less serious nature.
Besides, diligence must be applied in proportion to the
position or condition of the agent or person, ex qualitate
personae. For persons in a responsible position, like
prelates, physicians, and lawyers, are justly supposed to
employ more attention, and to consider more carefully
than ordinary human beings the circumstances and con-
sequences of an action they are about to perform. The
general rule is that a man shall omit nothing of his own
accord that he can and must do in order to dispel
ignorance. Hence it must be in his power and he must
be under obligation to dispel noxious ignorance. For
instance, can. 1269 states the rules for preserving the
Holy Eucharist. Now if a priest to whose care the
Blessed Sacrament is committed, would leave the place
without taking proper precautions, he would be responsi-
ble if a sacrilege were committed through his negligence,
and his responsibility would be as great as his thoughtless-
ness had been.26
But, continues can. 2203, if a person lias been able to
foresee the event (or effect of an action) and has never-
theless ofnitted to take the precautions winch ordinary
diligence would have dictated, carelessness approaches
vicious intent or dolus. Thus a clergyman may not be
guilty of voluntary homicide if he throws a stone and
a» BaUcrini-Palmicri, (';:••> Theol. fence in civil courts one may find
Morale, 1892. ed. 2, Vol, I, p. 35. "• interesting matter in Kenny, A Se-
64 S. lection of Cases Illustrative of Eng-
« See c 1, X, HI, 44; on negli- lish Low of Tort, 1904, p. 531 ff.
oogle
v ,|,, Original from
UNIVERSITY OF WISCONSIN
36 CRIMES AND PUNISHMENTS
kills some one, 2T but if he goes hunting and omits the
necessary precautions, he cannot be declared free of guilt
in case a stray bullet from his gun kills or injures some
one. Similarly, a clergyman exercising surgery (which
he should not do) and omitting the necessary precautions
or neglecting to acquire the necessary skill, cannot be de-
clared guiltless. z8
The next case considered by the Code is a casual one,
or, as we call it, an accident, something that is not fore-
seen or, if foreseen, could not be avoided. Such an acci-
dent cannot be imputed. For instance, if a woman who
has made her escape from her abductor jumps into a
river and drowns, she is not considered a suicide who
must be deprived of ecclesiastical burial.20 Thus also a
homicide committed in self-defence against an unjust ag-
gressor who could not otherwise be repelled, would not
render one liable to excommunication; nor would a
woman who suffered abortion by an unlucky fall be sub-
ject to the penalty established for that crime.80 How far
carelessness may enter here must be judged according to
what was said above on diligence. But the power and
obligation there mentioned are a sure indication of the
measure of diligence to be used. A fortuitous case, how-
ever, presupposes that it could not be foreseen or, at least,
that it was unlikely to happen.81
2TC. 37. Diit. 50. HG 25. X, V, IS! ■ priest in-
saCfr. can. 139. 9 a; c. 19, X, V, tended to build a new church and
12. in tearing down the old one, the
Z»C. ii, X, III, 28; tee can. roof fell and killed a worlcingman,
1240, f :, n. 3. who had been warned by the priest.
bo See c. 3, X, V, 39; can. 2350.
oogle
Original from
UNIVERSITY OF WISCONSIN
~
CANON 2204 37
AGE
Can. 2204
Minor aetas, nisi aliud constct, minuit delicti im-
putabilitatem eoque magis quo ad infantiam propius
accedit
Here only imputability is considered, for the diverse
penalties are stated in can. 2230. Unless the contrary
is evident, youth diminishes responsibility in proportion
to its closeness to infancy. The Roman law regarded
impuberes as entirely incapable of dolus." Canon Law,
and the Decretals particularly,83 do not exclude respon-
sibility, but admit that it may be lessened, more especially
with regard to the sixth commandment. The Church
is also very indulgent to minors (1. c, those who have
not yet completed the twentieth year of age) when the
right of immunity, or rather the ius asyli is concerned.
Thus Clement XIII vindicated this right to minors even
in case of homicide; because, he said, full malice can-
not be attributed to youths and atrocious crimes are
committed by them but rarely." This may have been
true at that time, but newspaper reports now-a-days tell
a sad story of youthful depravity. Therefore our Code
adds : nisi aliud constat, i. c, if malice does not supply
the lack of age. Juvenile courts have been established
of late years for youthful offenders and they deal with
them more leniently than the lay courts were wont to do,
not only at the time of Clement XIII, but also up to a
comparatively recent date. M
81 L. 3, Dig. 47, io=c. 2, C. xsr 1763, J 5 f. {Bull. Rom. Continue-
q. 1. tio, ed. Prati, 1862, Vol. IV, p.
isCc. i, 2, X, V, a3- 754).
34 " Quemadmodum," May 15, as Kenny-Webb, /. c, p. 45 f.
Bd by GoOgle
J ^ Original fro ni
UNIVERSITY OF WISCONSIN
38 CRIMES AND PUNISHMENTS
a
violence, fear, necessity, detriment
Can. 2205
§ 1. Vis physica quae omnem adimit agendi facul-
tatem, delictum prorsus excludit.
§ 2. Metus quoque gravis, etiam relative tantum,
necessitas, imo et grave incommodum, plerumque
delictum, si agatur de legibus mere ecclesiasticis,
penitus tollunt.
§ 3. Si vero actus sit intrinsece malus aut vergat in
contemptum fidei vel ecclesiasticae auctoritatis vel in
animarum damnum, causae, de quibus in § 2, delicti
imputabilitatcm minuunt quidem, sed non auferunt.
§ 4. Causa legitimae tutelae contra iniustum ag-
gressorem, si debitum servetur moderamen, delictum
omnino aufert; secus imputabilitatem tantummodo
minuit, sicut etiam causa provocationis.
§ 1. Violence t which takes away all freedom of ac-
tion, excludes responsibility and consequently the guilt of
crime.
Violence means external physical compulsion applied
to force one to act against one's own will, as when a
young man is haled before the ordaining bishop by his
foolish parents. The doctrine of St. Thomas39 is very
clear on this subject. The act of the will is twofold:
one is its immediate act, as it were, elicited by it, namely
to wish; the other is an act of the will commanded by it,
and put into execution by means of some other power,
such as to walk and to speak, which are commanded by the
will to be executed by means of the motive power. As
regards the commanded acts of the will, the actus impcrati,
38 Summa Thiol.. I -I I. q. 6, art. the English Dominican Province,
4 et 5; translated by the Fathers of 1914.
'le
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 2205
the will can suffer violence, in so far as violence can
prevent the exterior members from executing the will's
command. But as to the will's own proper act, the actus
elicitus, violence cannot be done to the will. The reason
is that the act of the will is nothing else than an inclina-
tion proceeding from the interior principle of knowledge.
On the other hand violence or compulsion proceeds from
an exterior principle or agent. It is contrary to the
nature of the will that it should be subject to compulsion
or violence, just as it is contrary to the nature of a natu-
ral inclination or movement to be bent in a contrary direc-
tion. Violence, therefore, is directly opposed to the vol-
untary as well as to the natural. For the voluntary and
the natural have this in common, that both are from an
intrinsic principle; whereas violence is from an extrinsic
principle. And for this reason, just as in things of
knowledge violence effects something against nature (e. g.,
a stone thrown upwards) ; so in things endowed with
knowledge it effects something against the will. Now
that which is against nature is said to be unnatural; and
in like manner that which- is against the will is said to be
involuntary. Therefore violence causes involuntariness,
and consequently an act done under such external influence
is no human act, because a human act is always a
voluntary act. Violence, in other words, renders an act
irresponsible. However, note well, violence must be
complete and adequate and referable to the act in ques-
tion ; in other words, there must be a causal connection
between the violent act and the act commanded or in-
tended by violence, as stated expressly in can. 1087. See
also can. 214 concerning ordination under compulsion, the
impediment of abduction (can. 1074), and acts against
faith commanded by idolatrous or heretical parents who
may be wicked and powerful enough to compel their
* I , Original fro m
lOO^lt UNIVERSITY 0FWI5C0NSIN
40 CRIMES AND PUNISHMENTS
children to come with them into non-Catholic temples,
etc.
§ 2. Fear, even though relatively grave, necessity, and
even a serious loss or detriment, if merely ecclesiastical
laws are violated, often take away responsibility and there-
fore the guilt of crime.
(a) Fear, or trepidatio mentis ob malum imminens,
has been sufficiently explained elsewhere.87 Since fear
does not render a human act purely involuntary, but leaves
it substantially free, it is evident that an act done from
fear is imputable. Wherefore we need not be surprised
that "duress per minas" forms a very rare defence in
English-American law. M
(b) The same is true of necessity, which is a
moral-physical state of man that prompts him to violate
the law. Necessity has its degrees which depend on the
helplessness of the person that is in need, and on the ne-
cessity of having or obtaining what is needed. Therefore
extreme, grave, and light necessity are distinguished.
Extreme " would be the necessity which would concern
life or death, material or spiritual. Grave is the necessity
which would cause a serious spiritual or material loss of
property, name, honor, social condition. Light is the ne-
cessity if the loss threatened is of little importance, or if
the damage, though great, can easily be warded off or re-
paired. The Code is very generous, as far as the external
forum is concerned, in admitting any kind of necessity,
which, as Gratian says, 40 knows no law.
87 See this Commentary, Vol. II, Whether gravis, in our text, li alio
p. 30; Vol. V, p. 245 £. to be referred to neceistlos may
88 Kenny- Webb, /. c, p. 69. reasonably be doubted; for the ad-
to Theologians distinguish crtrema jective grave i» repeated before m-
et quisi-extrema. commt>dum, but not before necttsi-
40 Dictum ad c 39, C. 1, q. 1 ; cfr. tat.
c. 5. X. I, 40; c. a. X. III. 46.
►ogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2205 41
(c) Incommodum means inconvenience, trouble,
bother, loss, detriment, and is related to necessity, with
this difference, that necessity signifies rather a nega-
tive condition, or want, whereas incommodum may in-
volve the positive deprivation of something that is con-
venient, or becoming, to one's state of life. However,
the inconvenience must be great. Incommodum is a
very elastic term, and may be referred to the person af-
fected as well as to the object that causes convenience or
inconvenience.
(d) Grave fear, necessity, and grave inconvenience ex-
cuse from crime only if the violation concerns an ecclesi-
astical law. For it is generally understood that merely
positive laws do not oblige under great inconvenience, in-
asmuch as the human legislator is supposed not to wish
to lay a too heavy burden upon man under such conditions.
Thus the law of alienation without papal indult (can.
1532, 2347, n. 3) may really prove too burdensome, nay
even detrimental, and therefore does not oblige under cer-
tain conditions.
§ 3. On the other hand, § 3 of can. 2205 states that
an intrinsically evil act or an act which implies contempt
of faith or ecclesiastical authority or injury to souls
may be excused on the grounds of grave fear, necessity,
and grave inconvenience, but can never be declared en-
tirely immune from criminal imputability.
(a) Ethics teaches that the morality of an act arises
from the object, the circumstances, and the end intended
by the agent. These determinants make an act either
good or bad; and since the moral quality is something
objective, the act itself is objectively tainted by the de-
fect of the intrinsic quality of the object, the circum-
stances or the end. Of course, the intention can be
rectified, provided the object and circumstances are either
.'le
k ,1,, Griginalfrom
UNIVERSITY OF WISCONSIN
42 CRIMES AND PUNISHMENTS
good or indifferent. However, this rather belongs to the
internal forum.
(b) To the external forum may be referred three
kinds of acts here specified, namely, contempt of faith,
contempt of ecclesiastical authority, and spiritual damage.
Contempt of faith spells apostasy or heresy, contempt of
authority implies schism, if not also heresy, and spiritual
damage may be summed up under the heading of co-
operation, scandal, and hatred. The synod of Ancyra
(314 a. d.) issued three canons concerning the reception
of the lapsi, i. e.t those fallen in the persecution, to whom
clemency is shown, but who are nevertheless censured for
the crime they had committed against the faith. Of
course, the compulsory offering of incense to pagan idols
was free of guilt, but whether the act was done under
compulsion could be proved only by the fact that the
priests and deacons suffered torments or confiscation and
protested their faith.41
Spiritual damage would be perjury, which is not
allowed under any circumstances,48
§ 4. The motive of legitimate self-defence against an
unjust aggressor, provided the measure of necessity is
not exceeded, takes away the criminal offence, and, like
provocation, diminishes imputability. The reason for the
clause is that a man may rightfully prefer his own life
to that of an unjust assailant, who certainly and actually
intends his death, when one or the other must die or will
surely be killed. For the unjust assailant forfeits the
right of his own life by intending to kill another.
The so-called moderamen inculpatae tutelae requires:
(a) that no more force is used than necessary to ward off
the attack; (b) that the assailant is hie et nunc in the act
41 See c. 3a, Diit. 50- *2 C. 1-3, C. aa. q. 5.
jle
% ,|,, Original fro m
UNIVERSITY OF WISCONSIN
■
pi
CANON 2206 43
of aggression ; (c) that no other means of escape are at
hand, and (d) that the intention is (at least implicitly)
directed not to the killing, but to the defence.*3
Whether this plea of self-defence may also be made in
cases where one's honor, liberty, or fortune are at stake, is
not explicitly stated in our text. However, it is certain
that no one would be allowed to kill a calumniator even
though the calumny or detraction couW not be warded off
by any other means. Nor is it allowed to kill a thief for
a small amount of money, say one gold ducat, or to kill a
man for the sake of a property right to be possessed only
in future or by way of inheritance; or to kill one who
retains an inheritance, etc. **
Provocation and actual aggression not infrequently
overlap, and it is difficult to distinguish one from the
Other/6 A real challenge often amounts to great danger.
the passions
Can. 2206
Passio, si fuerit voluntarie et deliberate excitata vel
nutxita, imputabilitatem potius auget; sccus earn
minuit plus minusve pro diverse passion is aestu; et
omnino tollit, si omnem mentis deliberationem et
voluntatis consensum praecedat et impediat
A passion is a movement or disturbance of the sensible
appetite which follows the imagination of good or evil,
and has various degrees, from vehemence to mere apprc-
« Hill, /. ff* p. 209. Papiensi, S. C C.f May 18, 17a*
U Cfr. prop. damn, by the H. O., (Richtcr, Trid., p. 93. n. 9), yet a
March 4, 1679, nn. 30-33 (Denxing- disferu§tio ad cautelam was im-
er, nn. 1047-1055). parted.
45 This certainly was the case in
jle
Original fro m
UNIVERSITY OF WISCONSIN
N
■
44 CRIMES AND PUNISHMENTS
hension. The composite nature of man, i. e., his rational
and appetitive constituents, influence morality, the latter
not directly, because, being seated in the appetite, they
are " blind," but indirectly, inasfar as they are subject to
the will. It is evident that passions here are understood,
not as consequent, but as antecedent, i. e„ as preceding the
will and the deliberate action of the will. Consequent
passions, i. e., such as follow the free act, cannot affect its
free nature, although they may influence other subsequent
acts. Antecedent passions sometimes pull in the same
direction as the will, sometimes in opposition to it. But
no matter in what direction they may pull, freedom of
will does not cease entirely, except in rare cases. Yet it
is also true that self-control, the characteristic feature of
freedom, is lost in proportion as sensible emotion in-
creases. How far it may affect the moral imputability of
an act is very difficult to determine, because each indi-
vidual differs in sensitive or appetitive constitution and
the organic or material conditions of temperament and
heredity, habits of life, climate and temperature also
differ greatly and influence different individuals in greater
or less degree.** Thus also one individual may have the
irascible passions more developed whilst another may be
more under the influence of the concupiscible.
This premised, the text says that the passions, when
willfully and deliberately excited and fostered, increase
imputability ; otherwise, »". tu if neither nurtured nor
stirred up by wilful cooperation, but simply taken as they
objectively affect human nature as a whole and individ-
ually, they diminish responsibility in proportion to the
degree of strength with which they work on the ixnagina-
46 Cfr. S. Thom.. I-II, q. 24; Da p. 7j; Mcrcicr. /. c, II, p. aa6.
Vtritote, q. 22, art. 9; Hill, J. c,
jle
Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 2207-2208 45
tion. Should they precede and impede the deliberation
of the mind and the consent of the will, the act following
could not be imputed.
aggravating circumstances
Can. 2207
Praeter alia adiuncta aggravantia, delictum augetur :
1. Pro roaiore dignitate pcrsonac quae delictum
committit, aut quae delicto offenditur;
a.0 Ex abusu auctoritatis vel officii ad delictum
patrandum.
Can. 2208
§ I. Recidivus sensu iuris est qui post condemna-
tionem rursus committit delictum eiusdem generis et
in talibus rerum ac praesertim temporis adiunctis ut
eiusdem pertinacia in mala voluntate prudenter coniici
possit.
§ 2. Qui pluries deliquerit etiam diverso in genere,
suam auget culpabilitatem.
Circumstances which enhance a man's responsibility
may arise from the quality of the person and his office as
well as from a repetition of crimes.
Can. 2207 considers the personal and official circum-
stances. The higher the dignitary who commits a crime
or against whom a crime is committed, the greater the
crime itself. For not only is the scandal greater,47 but
the law itself surrounds these persons with greater pro-
tection and inflicts severer penalties for crimes commit-
47 Cfr. c 4, C. 35, q. 1; c Z*$ X,II, 24.
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
46 CRIMES AND PUNISHMENTS
St
ted against them.48 Consequently clergymen are more
severely punished than laymen.4* A heavier penalty must
be meted out to calumniators of the clerical state than to
detractors of the lay state.80 Heresy is more severely
punishable in clerics than in laymen."
But authority and office may be abused, and such abuse
is the more detestable, the higher the office, and being an
abuse of a public trust, also enhances imputability.
Hither belongs the acceptance of gifts by ecclesiastical
judges ; M also the crimen falsi, wherefore ecclesiastics
who falsify papal or episcopal documents are more guilty
than laymen;68 here also belong the abuse of the con-
fessional 54 and all the crimes mentioned in Title XIX of
this book.
Relapse into the same crime also increases culpability.
The text first defines a recidivus in the juridical sense.
He is one who, after a judicial sentence of condemnation,
again commits the same crime under such conditions and
circumstances, especially of time (for instance, soon after
the sentence) that stubbornness in the practice of evil
may be prudently presumed. This may be the case con-
cerning those faults enumerated in can. 2168 ff. (non-
residing clergymen) and can. 2176 f. (concerning concu-
binage with the same or another person). But it must be
noted that pertinacia presupposes ill will, %. e.f resistance
to either paternal or canonical warnings after formal con-
demnation.
Responsibility or culpability is increased also if one
relapses into crimes of a diverse kind. The reason for
48 Cm. 3343 f. B2 Cfr. can. 1624, 1941, 9 a*. 3037,
40 Can. *3aj, 3336, «340, I a, | 1.
2345 etc. 53 Cfr. can. 3360, 2363; c. 4, C.
00 C. 1, X, V. 1. 25, q- 1.
61 C. 13, X, V, 7. 64 Can. 2367 f.; also can. 1665,
I 2; can. 2408.
jle
k ,] , Original fro ni
UNIVERSITY OF WISCONSIN
■
9
CANON 2209 47
this law must be sought in the increased mens tea, just
as the virtues united in the one virtue of prudence en-
hance the good habit.55 The civil law also takes into con-
sideration whether or not a criminal has been sentenced
before.
parties to a crime
Can. 2209
§ 1. Qui communi delinquendi consilio simul
physice concurrunt in delictum, omnes eodem modo
rei habentur, nisi adiuncta alicuius culpabilitatem
augeant vel minuant.
§ a. In delicto quod sua natura complicem postulat,
unaquaeque pars est eodem modo' culpabilis, nisi ex
adiunctis aliud appareat.
§ 3. Non solum mandans qui est principalis delicti
auctor, sed etiam qui ad delicti consummationem in-
ducunt vel in banc quoquo modo concurrunt, non
minorem, ceteris paribus, imputabilitatem contrahunt,
quam ipse delicti exsecutor, si delictum sine corum
opera commissurn non fuisset.
§ 4. Si vero eorum concursus facilius tantum red-
didit delictum, quod etiam sine eorundem concursu
commissurn fuisset, minorem imputabilitatem secum-
fert
§ 5. Qui suum influxum in delictum patrandum op-
portune retractatione abduxerit plene, ab omni im-
putabilitate liberatur, etiamsi exsecutor delictum ob
alias causas sibi proprias nihilominus patraverit; si
non abduxerit plene, retractatio minuit, sed non aufert
culpabilitatem.
65 Cfr. can. 2234.
jle
f~* -* v ,|„ Original from
UNIVERSITY OF WISCONSIN
48 CRIMES AND PUNISHMENTS
§ 6, Qui in delictum concurrit suura dumtaxat offi-
cium negligendo, imputabilitate tenetur proportionata
obligationi qua adigebatur ad delictum suo officio im-
pediendum.
§ 7. Delicti patrati laudatio, fructuum participation
delinquents occultatio et receptatio aliive actus delic-
tum iam plene absolutum subsequentes, nova delicta
constituere possunt, si nempe poena in lege plectan-
tur; sed, nisi cum delinquente de 1111b actibus ante
delictum convention fuerit, non secumferunt delicti
patrati imputabilitatem.
The present canon enumerates various kinds and de-
grees of participation in criminal acts. The first two
sections (§ 1 and § 2) have in view conspirators and
accomplices,50 the following four deal with principals, as
they are called in criminal law, who influence others more
or less efficaciously, while the last section treats of co-
operation after the act. But all kinds fall under the
generic name of cooperation, which may be defined as
physical concurrence in the evil act of another. How-
ever, since the act is supposed to be a criminal one, the
distinction between material and formal cooperation is
of little value here, because material cooperation presumes
the act not to be evil or at least to be indifferent, if such
acts exist.
1. Conspirators are those who, by mutual counsel to
commit a crime, concur physically or actually in its perpe-
tration. They arc equally responsible with the criminal
unless de facto circumstances increase or diminish their
culpability. Thus in rape or sacrilegious burglary the
a
-
a
bo The difference between conspir- Hated: Agreement mafces conspira-
tion and accomplices may be thus tors, crime, accomplices.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 2209 49
robbers are held equally responsible." Percussores cleri-
corum, if they concur in the same criminal act, are all
guilty, even though only one may strike the blow.08 Con-
spiracy, of course, being supposed to be entered into by
agreement, must be manifested in some way. But if
the participants actually share in the criminal act, con-
spiracy is presumed, and it is incumbent on the participa-
tor to prove that he was no partner to the conspiracy.
Thus Alexander III decided in the case of Thomas a
Becket that all those who had come with the intention of
killing or wounding the archbishop, even though they did
not lay hands on him, were equally or almost equally
guilty with the actual murderers.58 Hence it is not too
much to say that the mere fact of the parties having en-
tered into such an agreement suffices to constitute a
conspiracy.40
2. Accomplices are partners in a crime which, by
its very nature, requires a helper. They are equally re-
sponsible with the criminal, unless circumstances lessen,
increase or remove imputability. An accomplice is re-
quired in simony, which is equally punished in those who
give, receive, and consent ; religious superiors who simoni-
acally receive members, and bishops who bless abbots for
the same motive are equally guilty. fll Accomplices are
also essential to adultery. However, here the culpability
is diminished if one party does not know that the other is
married.02 Another crime which necessarily requires ac-
complices is duelling.03 Those who claim ignorance or
plead u not guilty " must prove their ignorance or inno-
cence.
p
5T See cc. 1, 4, C 36, q. 2: the eo Kenny-Webb, /. c„ p. 37a.
raptantes, cooperantes, conniventes OlCfr. c. it, C. 12, q. a; cc 8,
are subject to the same penalty. 30, 39, V. 3; can. 2371, 239a.
68 C. 34, C. »3, q. 8. eaCfr. c. 5, X, V, 16; can. 3388.
60 C. 6, X, V, t2. »3Can. 2351.
G| r Original from
OOglt UNIVERSITY 0FWI5C0NSIN
SO CRIMES AND PUNISHMENTS
St
3. Principals or participators in a crime may take
part therein by a more or less efficacious influence, or
they may withdraw their cooperation, or they may con-
cur only in a negative way in the perpetration of the
crime.
(a) Principals in the first degree are, as per § 3, the
(i) mandans or principal author of a crime; (2) the in-
stigators and (3) the aiders and abettors in whatsoever
form. All these are no less guilty than the criminal him-
self, .provided the crime would not have been perpetrated
without their cooperation and provided all other things
are equal. For instance, a prelate ordering celebration of
divine office in an interdicted church would be a mandans
and both the prelate and the celebrant would incur the
same penalty.04 An instigator (ad delictum indue ens)
would be a religious inviting outsiders to violate the papal
enclosure.68 The same crime may have abettors or aiders
(concurrcntcs) , for instance, in the usurpation or aliena-
tion of ecclesiastical property,08 in procuring abortion and
duelling,61 in forging papal documents, and in the elec-
tion,01 presentation or nomination of candidates to ecclesi-
astical offices.00 Ceteris paribus means that the guilt may
be less in the one or other of the cooperators, because of
ignorance of the law, or the greater dignity and official
character of the author, instigator or aider.
(b) Principals in a less degree, according to § 4 of
can. 2209, are those who aid in the perpetration of a crime,
but not so that the crime would not have been committed
if they had not concurred, in other words, they are, as it
were, merely concomitant perpetrators. These are less
responsible, provided, however, they were not acting as
0* Can. 3338, I 3. ot Can. 3350, | 1 ; 3351, 9 I,
f'3 Can. 2343. n. I. *J8 Can. 2360.
cg Can. J347 f. 08 Can. 2394.
a
jle
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 2209 51
conspirators. Thus, for instance, in the usurpation of
ecclesiastical property the main robber may be a high per-
sonage and his tools incur less responsibility because the
former was bent on carrying out his plans, even though
the others would have resisted.
(c) Those who withdraw their cooperation in a crime
in a proper and efficacious way are freed from every
responsibility, even though the perpetrator commits the
crime for reasons of his own; if the withdrawal is only
half-hearted, the responsibility is lessened, but not taken
away entirely. For instance, in a simoniecal election the
money must be entirely refunded and every promise can-
celled before election. A druggist who offered medicine
for abortion must take it back; if he only dilutes or mixes
it with other counteracting ingredients, he is guilty to
some extent should abortion result; but he is not guilty
at all if the medicine is taken back, and abortion results
nevertheless.70
(d) Official aiders or abettors in crime are those who
neglect their duty and thereby aid in the commission
of crimes. Their responsibility is proportionate to the
obligation by which they are bound, in virtue of their
office, to prevent the crime. For instance, a pastor de-
serving removal for the reasons mentioned in can. 2182 or
in can. 2176, should be removed by the bishop, and if
the latter fails to remove him, he himself becomes re-
sponsible for the ensuing damage (decrease of Christian
training, detriment to divine worship, scandal, etc.).
There is now little excuse for not proceeding in such
cases, because the law has rendered procedure less diffi-
70 Bat even is this case a druggist formula written on it, because it
or > physician may be somewhat could be copied before it was re-
guilty, if the bottle or box bad the turned.
*r\r.nl*> Original from
lOOglL UNIVERSITY QFWI5C0NSIN
52 CRIMES AND PUNISHMENTS
cult and the obligation is incumbent on the Ordinary.71
4. Principals or accessories " after the fact " are such
as laud and approve a crime, or share in the booty or
fruits of the same, or hide and shelter criminals, or abet
the crime after it has been perpetrated. Each of these
acts constitutes a crime in itself if forbidden under penal
sanction ; otherwise they exclude imputability, unless con-
spiracy has preceded.
Can. 2338, § 2, which prohibits intercourse with
excotnmunicati vitandi, affords an example of patrati
delicti laudatio or receptatio delinquentis ; can. 2338, § 3,
would punish the admittentes; can. 2339 concerning
ecclesiastical burial affords a similar case, though it ap-
pears as an independent crime.
The fructum participates or detinentes of can. 2345
are here included, because they participate in the theft,
provided they are aware of the injustice of the act"
.
CONSEQUENCES OF CRIMES
E
Can. 2210
§ 1. Ex delicto oritur:
1." Actio poenalis ad poenam declarandam vel in-
fligendam et ad satisf actionem petendam;
a.° Actio civilis ad reparanda damna, si cui delic-
tum damnum intulerit;
§ 2. Utraque actio cxplicatur ad normam can. 1552-
1959 ; et idem iudex in criminali iudicio potest ad in-
stantiam partis laesae civilem actionem ad exarnen
revocare et definire.
s
71 There may indeed be some inv u fear of trouble and aheer in-
pediments which prompt the Ordt- dolence or ignorance,
oary not to proceed; but there also 72 Cfr. c. 4, X, V, iS.
are purely imaginary obstacles, such
.'le
^ ,|A Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 2210-2211 53
Can. 221 i
Oizmcs qui in delictum concurrunt ad norm am can.
2209, §§ 1-3 obligations tenentur in solidum expensas
et damna resarciendi quae ex delicto quibualibet per-
sonis obvenerint, licet a iudice pro rata damnati.
The Code calls these things eft ictus, we prefer to speak
of consequences, since effect means the immediate and
direct result of an act. These consequences are two:
criminal and civil action (can. 2210), which must be pro-
portionately applied to the principals in crime.
From crimes may arise:
i.° A penal or criminal action looking either to a
declaration or condemnation to penalty and satisfaction
or to retribution ;
2.0 A cizril action looking; to a repair of the damage
done if any was done.
Both actions have been set forth in can. 1552-1959; but
the present text adds that the judge in a criminal trial
may, if the injured party demands it, elso examine and
settle the civil action or damage suit. Thus if damage
was done by beating a cleric or by sacrilegious theft, the
criminal court may decide the amount of reparation.
Can. 22 1 1 states the obligation of repairing the damage
to be imposed on the conspirators, accomplices and insti-
gators, as mentioned under can. 2209, §§ 1—3. This three-
fold class of participants in a crime are held in solidum
to repair the expenses and damage caused by the crime
to any and every person who suffered by it. For in-
stance, if two or three persons committed a theft, or three
elected a fourth illegally, i. e., simoniacally, to an office,
each is held responsible for the whole amount of expenses
and damages, just as if he were the only perpetrator, even,
* I Original from
UNIVERSITY OF WISCONSIN
54 CRIMES AND PUNISHMENTS
says the text, if he were condemned by the judge only to a
pro rata payment. Therefore if A was condemned to
pay $100, B $150, and C $200, A is liable for $450 in
case the other two prove insolvent. Of course A may
fall back on B and C by instituting* a suit in the civil
court, which would certainly recognize the claim of A in-
dependently of any criminal action.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
TITLE III
CONATUS DELICTI OR INCHOATE CRIMES
Can. 2212
§ i. Quicunque actus posuerit vel praetermiserit qui
ad exsecutionem delicti natura sua conducunt, scd
delictum non consummaverit, sive quia consilium
suum dcseruit, sive quia delictum propter insuffi-
cientiarn vel ineptitudinem mediorum perficere non
potuit, delicti conatum committit.
§ 2. Cum omnes actus positi vel omissi sunt qui ad
exsecutionem delicti natura sua conducunt et ad delic-
tum pernciendum sufficiunt, si ex alia causa, praeter
voluntatem agentis, effectum sortiti non sint, delicti
conatus dicitur proprio nomine delictum frustration.
§ 3. Conatui delicti accedit actio illius qui alium ad
delictum committendum inducere studuerit, sed in-
efficaciter.
§ 4. Si conatus delicti peculiari poena in lege mulc-
tetur, verum constituit delictum.
en
Can. 2213
§ i- Delicti conatus suam habet imputabilitatem,
eo maiorem, quo magis ad consummationem accedit,
quanquam minorem prae delicto consummato, salvo
praescripto § 3-
§ a. Delictum fmstratum magis culpabile est, quam
simplex delicti conatus.
§ 3. Ab omni imputabilitate liberatur qui sponte
55
in
oogle
k ,|rt Original from
UNIVERSITY OF WISCONSIN
56 CRIMES AND PUNISHMENTS
ab incepta delicti exsecutione destiterit, si nullum ex
conatu damnum aut scandalum ortum sit.
A conatus delicti is an external act committed with
criminal intent, but without effect, in other words, a non-
consummated crime. There are allusions to such at-
tempted crimes in the old Corpus Juris Canonici,1 but the
most pronounced example is taken from the Roman law.3
Our modern civil codes, too, recognize attempted crimes
as indictable.8 The Code distinguishes two species of
inchoate crimes : attempted crimes and frustrated crimes.
To the former is added the crime of incitement or instiga-
tion.
1. A conatus delicti exists whenever one does some-
thing which of itself would lead to the perpetration of a
crime, but docs not consummate the crime itself, cither
because he gives up the criminal intent, or because the
means chosen are insufficient or inadequate to produce
the criminal effect. Akin to this criminal attempt is
every incitement by which another is induced to commit
a crime, but unsuccessfully, because he does not commit
the crime to which he is incited. Attempts consist in
physical acts which help in a sufficiently " proximate "
degree to carry out the contemplated crime. When the
act is sufficiently " proximate " cannot be determined by a
general rule. Thus, e.g., if a man who contemplated
murder or simple percussio clericorum, bought a pistol
or other weapon and repaired to the place where he might
find his victim, these acts would be too remote. But if,
1 Wcrnr, I. c. Vol. VI, p. 41; pert, sed attemptart tantum ma-
but t 3, X, V, 35 manifestly treats trimonii iungtndi causa jacraiissimas
of provocation and excessive de- virgines ousus fucrit, capitali potno
fence. feriatur."
2 C. 6, Dirt. 1 rf# poenit.— 1. 5. 3 Kennv-Webb, /. ft, p. 72 ff.
Cod. I, 3: "Si quis non die am ra-
>Ie
I , Original from
UNIVERSITY OF WISCONSIN
CANON 2212-2213 57
on meeting the victim, he pointed the pistol at him and
put his finger to the trigger, or struck out to hit him, there
would be a conatus delicti.4 The same rule may be ap-
plied to the procuratio abortus.
2. A crime is said to be frustrated if all the acts neces-
sary for its commission, whether positive or negative, are
posited and sufficient preparations are made to commit the
crime, but the same is not actually committed because
another cause or agent aside from the perpetrator inter-
feres and prevents it. For instance, it was held to be a
criminal attempt to kill if one shot through a skylight into
the room where he supposed a policeman was watching
■n
him, though the policeman had shortly before departed
from his position.8 Thus an assassin may be thwarted by
the interference of a third person.
3. If attempts at crime have a determined penalty ap-
pointed in law, they constitute separate crimes, as, for
instance, attempts to bribe officials and judges are declared
to be punishable.6
Can. 2213 determines the imputability or responsibility
for attempted and frustrated crimes.
1. An attempt to commit a crime is less imputable than
the act of perpetrating it; the degree of responsibility foo
the former must be gauged by its approach to the latter,
with due regard, of course, to the damage done.
2. Greater still is the responsibility resulting from a
crime that failed involuntarily, or a frustrated crime, than
for one resulting from a simple attempt.
3. Those who wilfully desist from perpetrating a
crime are free from responsibility for the same, provided
no damage and no scandal were caused by the attempted
or frustrated crime — which, of course, they would have
to repair, according to can. 22 11.
* Ibid. & Ibid., p. 74. 8 Can. 2407.
jle
£ * -» v J„ Original fro m
UNIVERSITY OF WISCONSIN
■
Q
PART II
PENALTIES
SECTION I
PENALTIES IN GENERAL
Can. 2214.
§ 1. Nativum et propriiun Ecclesiae ius est, inde-
pendens a qualibet humana auctoritate, cocrcendi de-
linquentes sibi subditos pocnis turn spiritualibus turn
ctiaxn temporalibus.
§ a. Prae oculis autem habeatur monitum Cone.
Trid., sess. XIII, de ref., cap 1 : " Meminerint Epis-
copi aliique Ordinarii se pastores non percussores esse,
atque ita praeesse sibi subditis oportere, ut non in eis
dominentur, sed illos tanquam Blios et fratres diligant
elaborentque ut hortando et monendo ab illicitis deter-
reant, ne, ubi deliquerint, debitis eos poenis coercere
cogantur; quos tamen si quid per humanam fragili-
tatem peccare contigerit, ilia Apostoli est ab eis
servanda praeceptio ut illos arguant, obsecrent, in-
c
crepent in omni bonitate et patientia, cum saepe plus
erga corrigendos agat benevolentia quam austeritas,
plus exhortatio quam comminatio, plus caritas quam
potestas; sin autem ob delicti gravitatem virga opus
erit, tunc cum mansuetudine rigor, cum misericordia
iudicium, cum lenitate severitas adhibenda est, ut sine
asperitate disciplina, populis salutaris ac necessaria,
58
oogle
j Original from
UNIVERSITY OF WISCONSIN
—
a
N
CANON 2214 59
conscrvctur ct qui corrccti fucrint, emendentur aut, si
resipiscerc nolucrint, cetcri, salubri in eos animadver-
sionis exemplo, a vitiis deterreantur."
This canon vindicates to the Church a right which
flows from her very constitution, namely, the right to
punish subjects who transgress her laws with spiritual as
well as temporal penalties. This right is natural and
inherent in the Church, and therefore independent of
human authority. It is what we call the coercive or re-
strictive power, sometimes also styled potestas executiva,
although the English term executive does not accurately
convey the idea embodied in the Latin word.
The Code uses three adjectives to determine the char-
acter of this coercive power :
1. It is called nativum, i.e., an inherent or natural
right- The proof for this dogmatic thesis1 lies in the
fact that Christ founded a visible autonomous society
endowed with the means to achieve its appointed end.2
The Church, indeed, is not merely a teaching institution,
but a juridical society, the object of which is the common
and individual spiritual welfare of men. It is therefore
an a priori wrong conception of the Church, if only
teaching and preaching penance is emphasized, whilst the
binding character of the obligations imposed by member-
ship is neglected. Christ granted power to rule His
Church to Peter and the other Apostles, and this power
is as wide and deep as the creative word that produced it/
There is no limitation or restriction or exception made of
the power of binding and loosing. It embraces all things,
iTrid.. sess. 7, can. 14, de baptis- 5 (Denzinger, n. 1367 f.) ; Pius IX,
o; Martin V, "Inter eunctas," Syllabus, prop. 24 (Denzinger, n.
Feb. 2», 1418, art. 31. 33 (Denzing- I573)-
er, n. 575. 577); Piu* VI, " Auctor- 2 Sec Hollweck, /. c, p. IX ff.
rem fidei," Aug. 38, 1794 propp. 4. 3 Cfr. Matth. 16, 19; a8, 18 ff.
;Ic
Original fro m
UNIVERSITY OF WISCONSIN
6o PENALTIES
all men who, by the regeneration of Baptism, are incorpo-
rated with the visible body of Christ. Neither is this
power a merely internal persuasion produced by external
exhortation. It means a reality that is sensibly mani-
fested. For those who reject the authority of the Church
and refuse to listen to her, are segregated from the body
of Christ and must be treated as separated, i, e., as heathen
and publicans. *
The Apostles commanded as well as preached and were
endowed with the power of punishing the disobedient.5
We cannot imagine that the words addressed to them by
Christ are merely strong metaphors inculcating obedience
or penance. They rather communicate a power given by
One who is the Governor of the universe.
This power of enforcing authority was understood and
used by the Church throughout the course of her history.
We will only point here to the fact of public penance and
the ecclesiastical penalties inflicted on delinquent clerics.
All this goes to show that the Church possessed and was
conscious of possessing a vindictive power, and conse-
quently it must be admitted that Christ laid down that
authority in the constitution of the Church.
2. It is, however, a ius proprium, not merely in the
sense of possession, but of a characteristic power. For
the coercive power granted to the Church must not be
considered as an end, but as a means to an end. Since
the purpose of the Church is spiritual, the means, too,
must partake of the same nature and therefore be
spiritual. We clearly perceive from our Code that the
spiritual clement prevails. For most of the penalties arc
censures which directly reflect the spiritual element of the
coercive power. In this respect the Church is superior to
« Mattb. 18, 17 t. 5. 4 IT.; II Cor. 8, 8; io, 5 I.
BCfr. Acta 15, j8; I Cor. 4, 21;
jle
£ * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 2214 61
the State, which reaches only the external order of human
society. However, this too must be understood in the
right way. For we do not say that the Church is limited
to merely spiritual means. This would be contrary to
■
the nature of man, who is compounded of body and soul.
Besides our text would give us the lie if we were to
assume in the Church a merely spiritual (often con-
founded with internal) power.
3. The legislator further circumscribes this coercive
power by the phrase: independent a quaiibet kumana
auctoritate, a power that is independent of every human
authority. This- is merely a corollary of the nativttm ius,
for if this power is a constitutional, and therefore divine
right of the Church, no human power can destroy or at-
tack it with impunity. We do not read that St. Paul con-
sulted the Proconsul of Achaia before he inflicted on the
■
incestuous a severe punishment which had visible and
external consequences. Neither did the Church borrow
her power from the emperors. Quite a different thing is
the personal immunity of Church dignitaries from the
jurisdiction of lay courts. For this privilege may have
been brought about and enlarged with the cooperation of
the civil power. But the coercive power is not identical
or coextensive with personal immunity. The abettors of
Louis the Bavarian were dazzled by the imperial power,
which they traced to imperial Rome, and therefore as-
serted that the Church, even as a whole, could not in-
flict coercive punishment on any man unless the emperor
granted her this power. This error was promptly re-
jected by John XXII, who in this regard acted as the
champion of an innate power, not of the papacy alone, but
of the Church at large."
8" Licet." Oct. 33, 13*7, «rt 5 (Denzinger, n. 427).
►ogle
£ * ^ -. -J,-. Original from
UNIVERSITY OF WISCONSIN
62 PENALTIES
That the Church has been hampered and often un-
justly handicapped in exercising this power is apparent
from the so-called " appeal from abuses " which the Gal-
lican Liberties asserted as a privilege of the Frankish
Church. The Church could not accept such a curtailment
of her God-given power. She may tolerate abuses, as she
has tolerated persecution, but she can never allow the
substantial and necessary powers she has received from
her Founder to slip from her.
4. The extent of this coercive power is either formal or
material. Formal are the various kinds of punishment,
and material arc the subjects over whom this power may
be wielded (see Title VI).
Here a word may be added concerning the various
canonical penalties in general. The text says that these
may be either spiritual or temporal. It may be said that
this contradicts our statement, made above, that the
means of exercising the coercive power must be com-
mensurate with the spiritual purpose of the Church, and
therefore spiritual. But we did not forget to say, at the
same time, that man is a being who must be treated with
human measure in meting out punishments. Now it is
a fact, always supposing that the Church is a visible,
autonomous society, that men, even clerics, are sometimes
more afraid of temporal, sensible punishments than of
the spiritual weapon of censures. This all the more where
faith has suffered shipwreck or at least has been weak-
ened. Consequently we find even in our Code some fines
and detention in houses of correction for clerical offend-
ers. Yet even these penalties clearly have a spirit-
ual aspect : they are inflicted for the purpose of amend-
ment.
The development in the practice of imposing penalties
has kept pace with the outward growth and development
ogle
/".,., -,!,■, Original fro rn
UNIVERSITY OF WISCONSIN
CANON 2214 63
St
of the Church and her relation to the State. Excom-
munication or exclusion from the ecclesiastical body is
the oldest penalty; its civil effects are noticeable already
in the Apostolic writings.7 Very severe was the punish-
ment for the relapsed, as the history of the penitential
discipline abundantly shows. Reconciliation took place
gradually and by way of stations, the gradation of which
is a matter of dispute. Clergymen were removed from
their office and functions.
After Catholicism had become the religion of the State,
the number of delinquents increased and a varied system
of penalties became imperative. Excommunication be-
came twofold, major and minor, to which was later added
the personal interdict. Clergymen, too, experienced a
variety of penalties, the severity of which varied in dif-
ferent countries. Characteristic of ail these penalties was
their vindictive nature, as well as the element of atone-
ment or expiation contained in them."
The relation of the Church to the State after the thir-
teenth century naturally widened the field of penal laws,
inasmuch as many crimes which were at first purely
ecclesiastical, were now considered- civil, and vice versa.
Not only ecclesiastical penalties, such as censures, but
also temporal penalties were meted out by the ecclesi-
astical authorities : prison, exile, branding, slavery, loss of
civil honor and civil rights, and so forth. The Decretals
contribute the last stone to the building of the Church's
Penal Code. After this classical period there was a de-
mand — and a most legitimate one — for mitigation.
The inquiring reader may expect an answer to the
question whether the ius gladii or right of inflicting capi-
tal punishment belongs to the Church as an inherent right.
7 Cfr. I Cor. s; III Joh. 10; II 8 See Hinschiui, /. c, IV, 747 ff.;
Thess. Ill, 14. Eichmann. /. c, p. 7-
G I Originalfrom
°°8IC UNIVERSITY QFWI5C0NSIN
64 PENALTIES
We think not. For to vindicate this right to the Church
would entail danger of interference in the right of the
State, and besides, the maxim : Ecclesia non sitit san-
gtunem" is incompatible with the right of shedding blood.
The spirit of the Church is, or at least should be, the
spirit of Christ, which spells meekness and mercy. More-
over, one of the purposes of punishment is the correction
or amendment of the delinquent. But this purpose is
simply frustrated if the criminal is killed.9 Furthermore,
persuasion rather than force is to be used even with re-
gard to the most serious ecclesiastical crimes, heresy and
schism, which may be compared to treason in civil law.
Yet the Code itself forbids compulsion in matters of
faith (can. 135 1), according to St. Augustine, who
thought it expedient to call for armed resistance only after
bloody crimes had been committed by the Donatists. We
are aware of the objections that are drawn from the his-
tory of the Inquisition,10 and do not wish to extenuate the
stain it has left upon the annals of the Church ; but it
must be said to the honor of the latter that she always
recommended clemency, even when she delivered stub-
born recusants up to the secular arm. Besides it must not
be forgotten that in the ages of faith heresy was punish-
able also as treason by the civil government. And finally
we must not apply our kidglove notions of criminology
and penal law to the ruder Middle Ages.
After this somewhat lengthy digression it remains to
explain the term delinquent es. However, this has al-
ready been the subject of the first part, for delinquency is
related to delictum, and consequently a delinquent means
©Thus Hollwcck, J. c, p. XXVII. phlet by Eliza Atkins Stone, A Brief
10 The literature on this subject is for the Spanish Inquisition, re-
immense; hut we would recom- printed from The Ave Maria.
mend particularly the popular pam*
*Ie
I , Original from
UNIVERSITY OF WISCONSIN
CANON 2214 65
one who has committed a crime in the ecclesiastical sense
of the word.
§ 2 of can. 2214 recalls the wise admonition of the
Council of Trent to the bishops when compelled to use
the punitive power. It is essentially the same doctrine as
that inculcated by the Apostles " and may be divided into
three parts :
1. Being pastors, not tyrants, they should first use per-
suasion and paternal admonition in order to deter men
from evil-doing;
2. If some through human frailty have been delinquent,
they should be reproved, entreated, and rebuked, but
benevolently rather than austerely, by exhortation rather
than threats:
3. If, however, the seriousness of the crime requires
in
the rod, gentleness should be combined with firmness,
judgment with mercy, and leniency with severity. Thus
the faithful shall not be exasperated and wholesome disci-
pline shall be maintained, correction shall lead to amend-
ment, or where malice is combined with stubbornness,
the deterring example shall at least be a warning to others.
Ill Tim. IV, 2,1 Pet. V, a.
J Original from
>0tVC UNIVERSITY 0FWI5C0NSIN
■
TITLE IV
DEFINITION, KINDS, INTERPRETATION
AND APPLICATION OF PENALTIES
s
definition
Can. 2215
Poena ccclesiastica est privatio alicuius boni ad de-
linquents correctionem et delicti punitionem a legi-
tima auctoritate infiicta.
This text is quoted from the Council of Trent. It
contains all the elements of penalty as now defined. For
an ecclesiastical penalty means the privation of some good,
inflicted by the lawful authority for the correction of the
delinquent and the punishment of his crime.
Three elements are clearly discernible in this defini-
tion: the effect of penalty, its object and source.
1. The effect is privation of some good {privatio
alicuius boni). This is the generic feature common to
all penalties or pains, for poena means pain or suffering.
St. Thomas says that it is essential to pain or penalty
that it be an affliction against one's own will for some
guilt or crime.1 Hence man must be made aware of it
either in body or mind. Every privation, however, be it in
the natural or the supernatural order, causes pain because
it is a want of perfection or lack of something that per-
fects and completes the well-being of man. If the Code
i5«mma Thcol., I-II, q. 46, art 6, ad. a.
66
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 2215
insists on privation or denial of some good, it is in ac-
cordance with modern ideas of criminal law, which em-
phasize privation rather than positive infliction of pain,
thereby excluding the notion of torment or torture. It
must be added that even privation should be based on
ethical principles. It would be against these rules i f those
who are entitled to inflict penalties would not observe the
limits of justice and morality nor take into consideration
the grievousness of the crime committed. An immoral
penalty or brutal treatment of criminals 2 is against
human nature and invariably misses its purpose.
The bonum of which one may be deprived is deter-
mined according to the kind of punishment. If it is a
spiritual punishment, supernatural or spiritual goods, such
as sacraments and divine worship, are withdrawn ; if it is
a temporal penalty, natural goods, such as liberty and for-
tune, are taken away, in whole or in part.
2. The purpose of punishment is twofold, reformatory
and punitive. It is notable that the Code emphasizes the
reformatory feature first. There is little difficulty among
modern criminologists in admitting the reformatory or
corrective character of punishment. In fact, there is
quite a tendency to proclaim this the sole legitimate ob-
ject of punishment.8 But this contention goes too far.
There is a wide gulf between Church and State, the latter
looking solely to the temporal order of things, whereas
the Church considers the whole man, soul and body.
The Code mentions " delicti punitionem" What does
that mean ? Penalty supposes guilt, and guilt is caused by
the breach of an obligation set up either by natural or
positive law. Law means order, coordination or sub-
2 The old maxim " reus res so- thing, should guide also the judge
era," even a criminal Is a sacred and the criminologist.
3 Kenny- Webb, /. c, p. *8.
yG §le
Original from
UNIVERSITY OF WISCONSIN
68 PENALTIES
ordination. It is evident that a crime is a breach of law
and order, more specifically, a crime against public law,
and a discord in human society. And since crime is a de-
fection from public law and order, it naturally follows
that human society requires atonement and expiation,
not necessarily in the sense of revenge, but as a restoration
of the public order by public punishment.4
This doctrine may or may not be distasteful to the
great majority of modern writers.5 At the bottom of all
criminal law is the sense of public justice outraged by
crimes, and the sense of ethical retribution demanding
•a
expiation.8
Furthermore it cannot be denied that public authority,
being the guardian of law and order, must be entitled and
obliged to prevent crime. This is the preventive element
to be noticed in penalties. Certain reformers would deny
that right to the State, but it is obviously implied by the
right of self-preservation. " The right to punish must
ever remain founded, in part at least, upon the idea of re-
tributive justice. Pain must ever follow wrong-doing.
While vengeance is a divine prerogative, human govern-
ments are the means and agencies through which divine
Providence controls human affairs, and it is, therefore,
not only the right but the duty of the State to punish
those acts which are deemed subversive of society, quite
apart from motives merely prudential or reformatory." T
We may, therefore, sum up the purpose of ecclesiastical
law as follows: it is reformatory in its main tendency,
owing to the nature of the Church as an institution for
4 Lynching, thoueh it cannot bo 5 Kenny-Webb, J. c, p. 28, rather
defended, may be understood as incline to the conservative view,
growing out of the deep-rooted >en- C Foerster, SchulJ und Sukne,
timctit of public indignation and aa 191 1. p. 72 f.
a demand for justice. 7 Kenny-Webb, /. c, p. 29.
oogle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
-'
■
pi
-
-
CANON 2216 69
saving souls, but it is also expiatory, preventive or deter-
ring, in order to preserve divine and human laws, to keep
the public order intact and to show forth the true nature
of crime to the guilty as well as to the innocent. A
society founded by God cannot dispense with these ele-
ments of genuine criminal law.
3. The penalty must be inflicted by lawful authority.
For law is not a mere contractual order of things, but a
participation in the will of God or divine Providence, and
a breach of it therefore requires the intervention of the
lawful custodian and guardian of the law. Penalty is
neither revenge nor self -affliction, because, as stated above
on the authority of St. Thomas, it means affliction against
one's own will. Revenge is a private or first right, which,
far from restoring the disturbed public order, disturbs it
still more. Only the legitimate authority, as the founder
of law and the representative of the supreme Ruler, is en-
titled to demand justice and inflict the necessary penalties
on transgressors. Besides, in meting out the penalty,
there must be an objective standard for measuring the
crime as well as the punishment. The criminal himself
or other interested individuals might be either too lenient
or too cruel. The golden mean to be observed even in
meting out punishment, demands an even balance, which
can best be held by the administrators and executors of
justice.
DIFFERENT KINDS OF PENALTIES
Can. 22l6
In Ecclesia delinquentes plectuntur:
i.° Poenis medicinalibus seu censuris ;
2.0 Poenis vindicativis ;
3.0 Remediis poenalibus et pocnitentiis.
I Original from
1 K X )glC UNIVERSITY OF WISCONSIN
■
70 PENALTIES
Can. 2217
§ 1. Poena dicitur:
i.° Determinata, si in ipsa lege vel praecepto taxa-
tive statuta sit; indeterminata, si prudcnti arbitrio
iudicis vel Superioris relicta sit sive praeceptivis sive
facultativis verbis;
2.0 Latae sententiae, si poena determinata ita sit
addita legi vel praecepto ut incuxratur ipso facto com-
missi delicti ; ferendae sententiae, si a iudice vel Su-
periore infligi debeat;
3.0 A hire, si poena determinata in ipsa lege statua-
tur, sive latae sententiae sit sive ferendae ; ab homine,
si feratur per modum praecepti peculiaris vel per
sententiam iudicialem condemnatoriam, etsi in iure
statuta; quare poena ferendae sententiae, legi addita,
ante sententiam condemnatoriam est a iure tantum,
postea a iure simul et ab homine, sed consideratur tan-
quam ab homine.
§ 2. Poena intelligitur semper ferendae sententiae,
nisi expresse dicatur earn esse latae sententiae vel ipso
facto seu ipso iure contrahi, vel nisi alia similia verba
adhibeantur.
The Code deals with three kinds of penalties : censures
or corrective (medicinal) penalties, vindictive penalties,
and penal remedies and penances.8
1. Censures are called corrective or medicinal penalties
because they principally, though not exclusively, aim at
amending the delinquent. Consequently, if this purpose
is achieved, the penalty is to be removed and the criminal
may claim absolution from censure.8 For, the chief pur-
pose being reformatory, the contumacy or stubbornness is
s See can. 6, n. 5, 0 Can. 2241, 5 : ; can. 314B, I -.
>Ie
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 2216-2217 71
broken. It also follows that censures are not inflicted for
crimes which are mere facta without reference to the fu-
ture, or, once committed, have no further consequences.10
But it must also be understood that, although the main
object of censures is reformation or correction, yet the
purpose of penalty in general, vis.: ethical retribution
or reparation, is not excluded. For it is of public inter-
est that each and every crime be duly punished, in
order to deter others and thus prevent criminality.11 The
penal character of censures lies in this, that they de-
prive the delinquent of certain spiritual goods, which may
entail temporal consequences, as in the case of an exconv-
municatus vitandus.
2. Vindictive penalties are intended directly to avenge
crimes. Their primary purpose, therefore, is not refor-
mation, but reparation of the violated public order.12
They may be temporal or spiritual. As far as inflicted
on the clergy, they are exhaustively enumerated in can.
2298, whilst vindictive penalties threatened against clergy
and laity are mentioned in can. 2291. We need not refer
to the former practice which abounded in temporal penal-
ties, as mutilation, decalvatio or scalping, scourging, exile,
deportation, galleys, fines, etc.13 The Code has modified
the use of such penalties and limited them to fines
and detention in houses of correction.
3. Penal remedies and penances are purely preventive
means, though they partake of the penal character, other-
wise they would not be enumerated under the heading of
penalties. They may indeed also have the purpose of
..-.
10 Wernz. /. c. Vol. VI. n. X45. for judiciary procedure; can. 1913.
p. 150. § 4; can. 1S691 1 a; can. 2307; Eich-
11 C. 35, X, V, 39; C. I, Clem. I, raann, /. c., p. 54 (•
$. la Cfr. Wernz, /. e., n. 99, p.
12 These penalties may be dis- 100 f.
pensed, not absolved from, and call
'le
Original fro m
UNIVERSITY OF WISCONSIN-
72 PENALTIES
mere prevention. For an enumeration see can. 2306 ff.
Penances, even when inflicted in the external forum,
differ in character from vindictive penalties, as they gen-
erally depend upon acceptance and execution on the part
of the penitent and chiefly aim at atonement made to
God.1*
A subdivision of penalties is that based upon the meas-
ure and mode of infliction, as per can. 2217.
1. A fixed penalty is one so clearly determined by law
or precept, that no room is left for doubting what is meant.
Thus, if the law says : " they incur excommunication/'
"are deprived of office," etc., this and no other penalty
must be understood.
Another element must be considered in order to under-
stand the term laxative, which means an accurately de-
fined measure of punishment. An example is that of
suspension ex informata conscientia, which must be clearly
determined as to effect and time (can. 2188). The term
taxative also implies that the circumstances of imputability
have been duly weighed, else the judge would have a wide
margin left for determining the penalty. This becomes
more evident in penalties which are inflicted by a precept,
(praecepto). For precept means an order of the judge
or superior directly affecting the delinquent and indirectly
the crime. 1B
An undetermined or arbitrary lfl penalty is one, the in-
fliction of which is left to the prudent discretion of the
judge or superior. The discretion may, however, concern
the question whether any penalty is to be meted out at all.
14 Ibid., n. 96, p. 96. whereas verba fraeceptiva include
15 Precept differs from verba the penalties stated in law, and
praectfitiva, because precept means merely state that these penalties
a single order or injunction given must, as a rule, be inflicted, ac-
under threat of incurring penalty, cording to can. aaaj.
either ferendae or latae sententiae, 10 See Wernz, VI, n. St, p. 70.
>Ie
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 2216-2217 73
or what kind of a penalty, and in what measure. For
the law may determine that a penalty must be inflicted, but
leave the kind and measure to the judge ; e. g., where the
phrase is used: "pro gravitate delicti." Take, for in-
stance, can. 2170. It says that the Ordinary must decree
privation of income, but may inflict other penalties in
addition thereto. Hence the law sometimes prescribes one
penalty and intimates others. The law may also estab-
lish the minimum of penalties, and leave it to the judge
to inflict a severer punishment.17 Preceptive or obligatory
terms in general are: debet puniri, pumendus est,
prh'ondus, declarandus or declaretur infamis; facultative
or arbitrary terms : pro gravitate culpae, ad arbitrium
superioris, etc.
2. A distinction of the ecclesiastical law which has been
SI
made a target of attacks against the Church is that be-
tween penalties latae and ferendae sententiae. A fixed
penalty is latae sententiae if it is attached either by
law or precept to the commission of the crime. The law
uses, for instance, the terms ipso facto, ipso iure incurrit
excommunicationem " (can. 2343, privilegium canonis) ;
the superior decrees (per modunt praccepti) suspension
to be ipso facto incurred for a certain kind of crime:
these are penalties latae sententiae. Ferendae sententiae
are those which are to be inflicted by the judge or superior,
although perhaps appointed by law.19
3. A fixed penalty latae sententiae as well as ferendae
sententiae may be established by law (a iure). For in-
stance, clerics who violate the privilegium canonis against
cardinals and papal legates incur two penalties ipso iure
latae sententiae and, besides, are to be deprived of their
"-.
17 Cfr. c. 2, X. V, ai; c. 3. X. for instance, uses the term: inwo-
IV, 3. damus.
18 The Const. " t'aconte Stic," 1 ' <.":"; can. .:;.,. 23*8 etc.
Grw-u-il^ Original from
°°|vK UNIVERSITY OF WISCONSIN
74 PENALTIES
benefices, offices, dignities, which is a penalty ferendae
sententiae although both kinds of penalties are laid down
a
in law (can. 2343).
Ab homine is a penalty which, though established by
law, is inflicted by way of a special order Per modum
praecepti peculiaris, or by a condemnatory judiciary sen-
tence. For instance, the Ordinary may compel recusant*
to fulfill the terms of a last will, even by censures, because
the law (can. 2348) gives him that right- In this case
the Ordinary may simply issue a particular order, or, if
the case has been brought before the ecclesiastical court,
he may issue a sentence of excommunication, or, in the
case of a clerical recusant, of suspension. Hence, con-
tinues our text, a penalty ferendae sententiae established
by law, as in the case of can. 2343, § 2, n. 3, is one o
iure tantum as long as no condemnatory sentence has been
issued; but after such a sentence has been rendered, it
becomes a penalty a iure et ab homine, although considered
a penalty inflicted ab homine. The difference is very
palpable in can. 2244, § 2 f ., and can. 2247, § 2. A con-
demnatory sentence differs from a declaratory sentence in
so far as the latter affects the execution or observance of
the penalty as stated under can. 2232.
§ 2 of can. 2217 rules that the penalty must always be
understood to be ferendae sententiae, unless ipso iure,
or ipso facto, or similar terms are used.20
Why can the Church, unlike the State, inflict a penalty
latae sententiae? It appears unjust and unworthy of a
perfect society to condemn one before he is heard. But
we must not forget that the Church is a peculiar society,
with a religious character that does not remain on the
surface, but penetrates and encompasses the whole man.
10 For instance, can. 3315: habealur tanquam hacrtUeus, haereticorttm
Poenii obnoxious.
jle
% ,.] , Original fro m
UNIVERSITY OF WISCONSIN
CANON 2218 75
She reaches into the court of conscience, Besides, the
roost sacred offices might be neglected and abused with-
out punishment because of lack of witnesses and plain-
tiffs, and the fear of penalty and final exposure may
check malice and carelessness.21 Therefore the first
traces of censures latae sententiae coincide with the spread
of evil influences in the sixth and seventh century. In
order to protect ecclesiastical discipline more efficaciously,
this quasi self-executory remedy was found most efficient
and secure.22 Although the Church has now formally
mitigated the practice of inflicting ipso facto penalties by
demanding a declaratory sentence in most cases (see can.
2232), it would be against the mind of the legislator to
maintain that sentences called ipso facto have no other
significance or effect than that of a serious threat.
23
THE APPLICATION OF PENALTIES
Can. 2218
§ i. In pocnis decernendis servetur aequa propor-
tio cum delicto, habita ratione imputabilitatis, scan-
dali et damni ; quare attendi debent non modo obiec-
tum et gravitas legis, sed etiam aetas, scientia. in-
stitutio. sexus, conditio, status mentis delinquentis,
dignitas personae quae delicto offenditur, aut quae
delictum comnuttit, finis intentus, locus et tempus quo
delictum commissum est, num ex passionis impetu vel
ob gravem raeturn delinquent egerit, num eum delicti
poenituerit eiusdemque malos effectus evitare ipse
studuerit, aliaque similia.
Jl See HoIIwcck, J. c, p. xx f. 28 Prop. 47 damn, by " Auctorem
22 See Hinschiua, I. c, IV, 841; fidet," Aug. a8, 1794 (Denzinger, /.
V, 85 B. t., n. 1410).
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
Q
76 PENALTIES
§ 2. Non solum quae ab omni imputabilitate ex-
cusant, sed etiam quae a gravi, excusant pariter a
qualibet poena turn latae turn ferendae sententiae
etiam in foro externo, si pro foro externo excusatio>
evincatur.
§ 3. Mutua iniuria compensator, nisi una pars
propter maiorem iniuhae ab eadem illatae gravitatem
damnari debet, derninuta, si casus ferat, poena.
1. Penalties must be proportionate to the crime, which
is to be judged according to its imputability and the scan-
dal and damage caused. This is the objective standard
for the meting out of penalties. It may be noted by the
way that the legislator here again takes the public order
and public safety as the basis for criminal law.
There is also a subjective proportion, to be taken, not
mathematically, as they say, but geometrically, that is to
say, not only the objective importance of the law and the
objective grievousness of the transgression must be con-
sidered in weighing the penalty, but also the circumstances
under which, and the end for which the crime was per-
petrated. All this has been sufficiently discussed under
the tide of imputability. Age, knowledge, education, sex,
profession (conditio), the mental status of the delinquent,
the dignity of the offender as well as of the person of-
fended,34 the purpose for which the crime was committed
must be duly considered as well as the time (e.g., during
divine service) and the place (sacred or profane).
Imputability may be lessened or increased according to
the degree and cause of passion or fear. The promptness
of repentance, efforts made in curbing the evil effects,
and similar individual circumstances should also be taken
into account.
24 See, for instance, the gradation in can. 3343.
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
CANON 2218 77
2. Those circumstances which relieve one from all
guilt, as well as those which excuse the perpetrator from
grievous sin, also render him immune from every pen-
alty, latae as well as ferendae sententiae, even in the ex-
ternal forum, if he has sufficiently proved his defence in
the external forum. The reason for this rule lies in the
fact that penalties, especially censures, are grievous and
therefore presuppose a grievous fault or crime.25 The
law, being intended chiefly for the upkeep of the external
order, supposes such guilt and therefore requires proof of
" not guilty," which must be furnished by the accused.
Note the term "in fxtro externo." If the defence is con-
sidered valid in foro externo, it is also valid pro foro in-
terno; but not conversely. Compare canon 2251 on cen-
sures. Hence the regula juris 23 in 6° : " sine culpa, nisi
subsit causa, non est aliquis puniendus" that is, no one
should be punished who is without dolus or culpa, unless
for a special reason which involves the public welfare.28
3. Mutual injury is levelled or compensated, and there-
fore quashed, provided there is some proportion between
the injury done on both sides. There may be an injury
of the same nature complained of by two priests. This
is looked upon as condoned by mutual calumny. But be-
tween a bishop and a priest there is no strict proportion
and mutual condonation cannot be supposed ex aequo. It
may, however, lessen the penalty, and thus become an
extenuating circumstance, when punishment must be
dealt out.
as See c 41, C. IX, q. 3. 28 Cfr. can. 723; Reiffenstuel,
Comment in Reg. Juris 33.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
■
78 PENALTIES
INTERPRETATION OF PENALTIES
Can. 2219
§ x. In poenis benignior est interpret a tic facienda.
§ 2. At si dubitctur utrum poena, a Superiore com-
petente inflicta, sit iusta, necne, poena servanda est in
utroque fore, excepto casu appellationis in suspen-
sive
§ 3. Non licet poenarn de persona ad personam vel
de casu ad casum producere, quamvis par adsit ratio,
imo gravior, salvo tamen praescripto can. 3231.
The general rules of interpretation must also be ap-
plied to penal laws. For although the judge may use
discretion and "fill up the gaps of the law" — lacunae
legis — or mitigate the rigor of the penalty, yet an eccle-
siastical judge, being inferior to the Pope, is only a min-
ister and executor of the law, and hence, if the penalty
is clearly expressed, and the fact is established, he must
apply the penalty according to can. 2223. aT
1. Rule 49 in Sexto : " In penalties the more favor-
able interpretation should be adopted," must be understood
according to the general rules of interpretation, as stated
above. If the penalty is clearly stated in law, it must be
applied to the criminal, provided the crime and responsi-
bility for it are ascertained. Therefore the benignior in-
terpretatio concerns only dubious or disjunctive penalties,
for instance, if the law uses either — or, and especially
if it leaves the measure of punishment to the discretion
of the judge.
*7 Cfr. C. 11, Dig. 48, 19; Reif- somewhat ambiguous, Weraz, I. c,
feostuel la Reg. Iuris 49 in 6'; VI, p. 76, n. 67.
§le
Original from
UNIVERSITY OF WISCONSIN
CANON 2219 79
a
There is also another rule in 6° (15) which may find
a place here: " Odia restringi et favores convenit otn-
pliari" Its interpretation causes difficulty, for a law
generally is a restriction and therefore disagreeable, al-
though it may be favorable to another. Thus criminal
laws are very hateful to careless citizens and criminally
inclined individuals, yet at the same time very beneficial
to the commonwealth.28 It would not do to favor a
criminal and provoke a peaceful community. This rule,
therefore, must be understood in the light of imputa-
bility, damage and scandal. An example may illustrate
this. Compare can. 1063, § 2, with can. 2319, § 1, n. I,
where the excommunication latae sententiae, reserved to
the Ordinary, is inflicted on those who celebrate a mar-
riage before a non-Catholic minister because scandal is
given to the congregation,
2. If there is doubt whether a penalty inflicted by the
competent superior is just or unjust, the penalty must be
borne in both the internal and external forum, unless an
appeal was lodged which has a suspensory effect. The
reason for this rule lies in the character of the penal law
as a safeguard of the public welfare as well as in the ne-
cessity of upholding lawful authority. Therefore an ex-
communicated person, even though innocent in conscience
and justified by public opinion, must conduct himself as
The meaning of the clause, " excepto casu appeUationis
in suspenswo" is evident from can. 2243, where censures
-"■ The laws in favor of religion the favorable part may be amplified,
must, although restrictive of human but the unfavorable must be re-
liberty, be widely interpreted; S. C% itricted.
P. F., July a, 1837 (Coll., n. 796)- 20 Cfr. cc. 1, 31, C. 11, q. 3; tee
If the law is divisible, i.e., partly can. i9»4' The example of Sav-
fav arable and partly unfavorable, onarola is a case in point
"-.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
80 PENALTIES
are declared to have only devolutive recourse attached.
Consequently, one who is censured must bear the cen-
sure until it is reversed.
3. Analogy is not admitted in interpreting penal laws.
Hence there is no stretching from one person to another,
no extending from one case to another, even if the
reasons or circumstances of persons and cases are quite
alike, nay the reasons for extending the penalty seem even
stronger. This, of course, depends on the terms which
the law uses for persons ; for instance, the pronoun qui
is of a general tenor, and comprises females as well as
males.80 The term " religious " also comprehends both
sexes, unless the context forbids this interpretation.31
But if the term parochus is used, the penalty threatened
must not be extended to other persons, even though they
may have some qualities in common with pastors. If
the pastor is mentioned, the assistant or curate is not
included ; if a priest is named, deacons and inferior cler-
ics are excluded.88 One case is not stretched to cover
another because, although circumstances apparently seem
to point to sameness, yet each single case has its own
peculiar character and circumstances. Thus two pastors
may be absent from their homes for the same length
of time without the bishop's permission, yet on account
of particular circumstances the one may be excused but
not the other. Thus also in cases of sollicitatio, where
the words used may be understood by one person but
not by another. For the interpretation of the penal laws
now in force for the whole Church can. 6, n. 5 is to be
consulted. In other words, no penalties, temporal or
spiritual, corrective or vindictive, are in force at pres-
ent, except those mentioned in the Code. If these agree
<
ao Cfr. can. 2350, $ 2; can. 2353. 32 Can. 2387; concerning a dls-
31 Can, 490. tinction of persons, ice can. 2358.
§le
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-
CANON 2219 81
verbally and substantially with penalties formerly in
vogue, they may be interpreted according to the old foren-
sic practice and theory of authors. If they agree with the
old law only in part, the interpretation must be made ac-
cording to the old practice as far as they agree, but ac-
cording to the general laws from the wording and con-
text, as far as they disagree.*8
sa See can. 6, n. 2 and 3; can. aa to application is in queadoc, or
2351 on duelling. Analogy, al- If formalities only are concerned;
though forbidden when application cfr. can. 2296, f 1; 2,110; Kichmann,
u concerned, ma/ be admitted even /. c, p. 116, note m; 124, sot* 1.
in penal laws when competency
>Ie
j , Original from
UNIVERSITY OF WISCONSIN
N
■
'.•",
TITLE V
SUPERIORS WHO WIELD COERCIVE
POWER
Can. 2220
§ i- Qui poll en t po testate leges ferendi vel prae-
cepta imponendi, possunt quoque legi vel praecepto
poenas adnectere; qui iudiciali tantum, possunt
solummodo poenas, legitime statutas, ad normam iuris
applicare.
§ 2. Vicarius Generalis sine mandate special! noti
habet potestatem infligendi poenas.
The rule is that coercive power follows legislative
power; for even though we may distinguish sovereignty
into the three well-known departments, legislative, ju-
diciary, and coercive, radically and virtually they must be
held by one and the same sovereign power, otherwise
authority would be divisible, which is absurd.1 There-
fore the Code says that those who enjoy legislative power
are authorized to attach a penal sanction to tlieir laws.
This is done in order to render laws effective,
M t
But the Code adds to these legislators another class,
vis.; those who are entitled to impose precepts. These,
too, it says, may attach penalties to their precepts or
orders.
There is a notable distinction between precept and
law. For a precept may be imposed also in virtue of
1 Montesquieu in his L'Esprit drs in order to counteract State omnipo-
Lois advocated a complete division, fence.
82
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2221 83
merely domestic power, e. g., a community of religious
women may have a precept, which is not law, imposed
on them. Furthermore a precept concerns the indi-
vidual, not territory, and follows the subject everywhere,
but ceases to oblige when the authority who has given
the precept ceases to exist in whatever manner, unless
it was given in writing or in the presence of two wit-
nesses.2 Taking precept as distinct from law, therefore,
it follows that the power of attaching a penal sanction to
a precept must be understood of penalties in general, not
of censures. Were it otherwise, superioresses of religious
congregations would be entitled to inflict censures, which
is contrary to ecclesiastical law. On the other hand it
would not be exceeding one's power if one endowed with
jurisdiction in the external forum would attach a cen-
sure to the enforcement of a precept. The general rule,
however, is that legislative and coercive power are cor-
related.
Different from the power of the legislator is that of
the judge, as such; he can only administer justice or
apply the penal laws already established according to the
rules laid down in the Code. We say the judge, as such;
for when the Ordinary acts as judge, he may apply the
laws, as far as permissible, in proportion to his ordinary
power.
The Code first sets forth the coercive power, explain-
ing how far those endowed with this power may extend
it; then it lays down rules for judges.
COERCIVE POWERS
Can. 2221
Legislativam habentes potestatem, possunt intra
2 See can. 24; can. 3143,
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
>gle
84 PENALTIES
limites suae iurisdictionis, non solum legem a se vel
a decessoribus latam, sed etiam, ob peculiaria rerum
adiuncta, legem tain divinam, quam ecclesiasticam a
superiore potestate latam, in territorio vigentem, con-
grua poena munire aut poenam lege statutam aggra-
varc.
Can. 2222
§ 1. Licet lex null am sanctionem appositam habeat,
legitimus tamen Superior potest illius transgrcs-
s ion em, etiam sine praevia poenae comminatione,
aliqua iusta poena punire, si scandalum forte datum
aut specialis transgressionis gravitas id ferat; secus
reus puniri nequit, nisi prius monitus fuerit cum com-
minatione poenae latae vel ferendae sententiae in casu
transgressionis. et nihilominus legem violaverit.
§ 2. Parker idem legitimus Superior, licet probabile
tanturn sit delictum fuisse commissum aut delicti certc
commissi poenalis actio praescripta sit, non solum ius,
sed etiam officium habet non promovendi clericum de
cuius idoneitate non constat, et, ad scandalum evitan-
dum, prohibendi clerico exercitium sacri ministerii aut
etiam eundem ab officio, ad normam iuris, amovendi;
quae omnia in casu non habent rationem poenae.
i. Those who have legislative power may attach penal
sanctions to their laws within the limits of their jurisdic-
tion. Hence
a) The Pope has coercive power over and in the whole
Church, and may abrogate, modify, and circumscribe
penal laws.
b) Ordinaries and those who go by that name may do
the same as far as their territory or subjects or powers
>Ic
f~* -* v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2221-2223 85
a
reach. But their power is limited by the common law
and must be interpreted acording to the rules laid down
in the following canons.
c) Metropolitans enjoy coercive power in the dioceses
of their suffragans only as far as can. 274, n. 5 admits.
d) The Vicar-General, according to can. 2220, § 2,
requires a special commission from his Ordinary to inflict
penalties.
e) Religious superiors of exempt clerical communities
enjoy coercive power within the limits of the common
law and their own constitutions. But their subjects, i. e.t
regulars, are liable to be punished by the local Ordinaries
in certain cases."
f ) Religious superiors who enjoy only domestic power,
t. e., no jurisdiction proper in foro externo, may indeed
attach penalties to the enforcement of their precepts as
far as the domestic power permits ; 4 but they must ab-
stain from inflicting censures or any other penalty that
would savor of abuse of jurisdiction in foro extern o.
Neither can pastors or simple priests as such inflict cen-
sures.5
3.
2. Those who have real legislative (not preceptive)
power, that is, all except those mentioned above under
ff are permitted by can. 2221 :
a) To add a penal sanction to their own law or to any
law issued by their predecessor which was a lex minus
quant perfecta, i. e., lacking a penal sanction ;
b) To add to or to increase a penal sanction already
attached by law to a divine or an ecclesiastical law issued
by a superior lawgiver for that respective territory, if
special circumstances demand such an addition or increase
sCfr. can. 616, | 2;; 619; *W, 8 S. C. P. F., May 5, 16S4 (Co//.,
2435, S a; 2269, | a. n. 120); some missionaries seem to
4 Cf r. can. 501, | 1. hove claimed thii power.
§le
% ,1,., Original from
UNIVERSITY OF WISCONSIN
86 PENALTIES
of penalty. Thus a general prohibition had been issued
for the Christians of the Malabaric Rite not to play an^
kind of musical instruments for the purpose of idol wor-
ship. This was placed under excommunication and en-
forced with great rigor.6
Ordinaries may also use rigor in order to eradicate
certain local or provincial vices, as stated under can. 897.
However, it should be noted that the canon just quoted,
which treats of reservation, supposes that the crimes are
atrocious, not merely conventional. An atrocious crime
would be robbery, incendiarism, or keeping children away
from religious instruction or sending them without neces-
sity to non-Catholic schools, where Catholic schools are
available.7
3. Can. 2222 instructs superiors how to proceed when
inflicting a penalty for the transgression of laws which
have no penal sanction attached (leges minus quam per-
fcctac). Thus canon 140 forbids a cleric to attend
theatres or balls. There is no penalty provided against
the transgressors of this canon. Yet the Ordinary could
mete out a just punishment. Therefore § 1 of can. 2222
distinguishes thus:
a) The general rule is that no penalty is to be inflicted
without a threat or canonical warning. This warning
must contain a penalty of either ferendae or latae senten-
tiae before the transgression happens. Only in case the
transgression is proved does the penal sanction go into
effect. Thus, in the case mentioned, the Ordinary would
have to forbid theatre-going under penalty of either
ferendae or latae sentential, otherwise the delinquent
could not be punished.
a
c
e Benedict XIV, "Omnium solli- 7 See can, 1372-1374; can. 2319, |
citvdinum, Sept. 13, : :■ 44. I 14. ii n. 4.
dub. XIII (Coll. P. F., n. 347).
p
>Ie
£ " ^ s ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2221-2222
87
b) The first clause states an exception to this general
rule: the lawful superior may inflict a just penalty even
without previous canonical warning or threat of punish-
ment, if scandal has been given or the transgression is
of a particularly serious character. This may happen if
the theatre is one of the lower type and perhaps offensive
also to religion. For the rest, we refer to what was said
on suspension ex informata conscientia, which the law-
giver undoubtedly had in mind.8
§ 2 of can. 2222 grants the lawful superior preventive
pozver and also obliges him to make use of this power in
case of a probable crime and of a crime against which
criminal action cannot be brought on account of prescrip-
tion.9 But this canon concerns only clergymen. There-
fore in either of these two cases, viz., of a probable 10
crime or a crime for which a penalty is prescribed, the
lawful superior (also of exempt religious),
1. ° May and should not promote to either minor or
major orders a cleric of whose unfitness he is certain;
2.0 He may and should prohibit such a cleric from
exercising the sacred ministry, in order to avoid scandal ;
3.0 He may and should, to avoid scandal, remove such
a cleric from office according to the rules laid down in
can. 2147-2161.
But this preventive suspension has not the character of
an ecclesiastical penalty, and consequently its transgres-
sion does not induce irregularity (cfr. can. 985, n. 7).
8 See can. 2i86-»i94; Vol. VII, p.
471 S.
BSee can. 1704, 8 a; Vol. VII,
X47 f-
10 A probable crime may be called
one which cannot be fully proved,
ret is testified to by at least one
trustworthy witness or known to the
superior extra-sacramentaliter.
oogle
Original from
UNIVERSITY OF WISCONSIN
88 PENALTIES
THE JUDGE
Can. 2223
§ 1. In poenis applicandis iudex nequit poenam de-
terminatam augere, nisi cxtraordinaria adiuncta ag-
gravantia id exigant.
§ 2. Si lex in statuenda poena ferendae sententiae
facultativis verbis utatur, committitur prudentiae et
conscientiae iudicis earn infligere, vel, si poena fuerit
determinata, temperare.
§ 3. Si vero lex utatur verbis praeceptivis, ordinarie
poena infligenda est; sed conscientiae et prudentiae
iudicis vel Superioris committitur :
i.° Poenae applicationem ad tempus magis oppor-
tunum differre, si ex praepropera rei punitione maiora
mala eventura praevideantur ;
2.0 A poena infligenda abstincrc, si reus perfecte
fuerit emendatus, et scandalum reparaverit, aut suf-
ficienter punitus sit vel puniendus praevideatur poenis
auctoritate civili sancitis ;
3.0 Poenam determinatam temperare vel loco ipsius
aliquod remedium poenale adhibere aut aliquam poe-
nitentiam iniungere, si detur circumstantia imputabi-
litatem notabiliter minuens, vel habeatur quidem rei
erneiidatio aut infiicta a civili auctoritate castigatio,
sed iudex vel Superior opportunam praeterea ducat
mitiorem aliquam punitionem.
§4.° Poenam latae sententiae dedarare generatim
committitur prudentiae Superioris; sed sivc ad in-
stantiam partis cuius interest, sive bono communi ita
exigente, sententia declaratoria dari debet.
oogle
*
^ ,|rt Original fro ni
UNIVERSITY OF WISCONSIN j
Q
CANON 2223-2225 89
Can. 2224
§ r. Ordinarie tot poenae quot delicta.
§ 2. Si tamen propter numerum delictorum nimius
esset pocnarum infiigcndarum cumulus, prudenti
iudicis arbitrio relinquitur aut poenam omnium
graviorcm infligere, addita, si res ferat, aliqua poeni-
tentia vel remedio poenali, aut poenas intra
aequos terminos moderari, habita ratione nifmeri et
gravitatis delictorum.
§ 3. Si poena constituta sit turn in conatum delicti
turn in delictum consummatum, hoc admisso, infligi
tantum debet poena in consummatum. delictum sta-
tuta.
Can. 2225
Si poena declaretur vel infligatur per sententiam
iudicialem, serventur canonum praescripta circa sen-
tentiae iudicialis pronuntiationem ; si vero poena latae
vel ferendae sententiae inflicta sit ad modum praecepti
particularism scripto aut coram duobus testibus ordi-
narie declaretur vel irrogetur, indicatis poenae causis,
salvo praescripto can. 2193.
The judge, as such, is the minister of justice and ex-
ecutor of the coercive power. He is bound by, and not
above, the law/1 and consequently must be guided by the
text of the law, carefully weigh the number and nature
of the crime, whether fully perpetrated or only attempted,
and, finally, observe the rules of procedure.
I. He must consider the law, and, therefore:
a) Is not allowed to increase a fixed penalty, unless ex-
traordinary circumstances demand a severer punishment,
lift *, X, I. a.
Go >gle
j ^ Original fro rn
UNIVERSITY OF WISCONSIN
go PENALTIES
e. g., the atrocity of a crime, the scandal given, etc. The
increase may consist of multiplication or added intensity,
for instance, suspension and detention in a house of cor-
rection, or suspension from office and benefice, etc.12
b) If the penal law ferendae sententiae is couched in
arbitrary terms (verbis facultativis) , it is left to the con-
science and prudence of the judge to mete out the penalty
or dictate the minimum penalty if this is fixed.13
c) If the wording of the penal law is compulsory
(verbis praeceptis), the penalty must, as a rule, be inflicted.
There is a precept in terms used in the subjunctive or
gerundive forms : prvuetur, prtvandi sunt, debet puniri,
suspendi, removeri1 etc. Yet even in this case the legis-
lator leaves it to the conscience and prudence of the judge,
both of which qualities suppose that he decides objectively,
not subjectively or under the influence of passion.
a) He may delay the application of the penalty to a
more opportune time if he foresees greater evils from
premature or hurried punishment. This depends on cir-
cumstances of time and person.14
P) He may abstain from inflicting the penalty if the
delinquent shows that he has thoroughly reformed and re-
paired the scandal given, or has undergone or will prob-
ably undergo a proportionate punishment at the hands of
the civil authority. This, of course, supposes a so-called
mixed crime, which the civil as well as the ecclesiastical
authorities provide for in their penal codes.
y) He may mitigate a fixed penalty or substitute for it
either a penal remedy or some penance.16 Thus he may
inflict partial instead of total suspension, instead of a fine
12 Cfr. can, 3324, 2337 etc. the Utter should not cosily occur;
xa Cfr. can. 3405, 2406, 6 a- still popular commotion may bring it
14 In countries where Church and about; see can. aj37*
State are separate, interference from l& Of these sec can. 3306 IT.
.'Ie
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
-'
N
■
CANON 2223-2225 91
he may decree alms, etc. But this mitigation supposes
that a notably alleviating circumstance speaks in favor of
lesser immutability on the part of the delinquent, or that he
has given proof of amendment, or that a civil punishment
has already been inflicted, and the ecclesiastical judge
nevertheless deems it opportune to mete out a mitigated
punishment. This action is justified because the ecclesias-
tical judge thereby emphasizes the fact that the Church
has the right to exercise coercive power and to show her
abhorrence of public crimes.
d) As a rule it is left to the discretion of the superior
to declare that a penance has been incurred, i.e., to issue
a declaratory sentence. However, this sentence must be
issued if the interested party insists, for instance, on get-
ting satisfaction or removing suspicion, or if the public
welfare demands it, for instance, in the case of a corrup-
ter, or briber, or dangerous heretic.
2. The judge must furthermore, under can. 2224, con-
sider the number of crimes committed. As a rule each
crime demands its separate penalty. However, if the
numer of crimes would call for too great a number of
penalties, the judge should use prudent judgment. He
may, therefore, inflict the heaviest penalty and, if cir-
cumstances demand it, add some penances or penitential
remedies. He may, also, after having weighed the num-
ber and gravity of the crimes committed, mitigate the pen-
alties according to the rules of equity. If an inchoate and
a consummated crime have distinct penalties in law, the
judge shall inflict only the penalty established for the
consummated crime if this had been committed.
3. Finally, the judge must observe the rules of pro-
cedure according to can. 2225, as follows :
a) If a penalty is declared or inflicted by way of a
§le
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
92 PENALTIES
judiciary sentence which presupposes at least a summary
trial, he must observe the rules laid down in can. 1968 ff.
b) If a penalty, more especially a censure, either latae
or ferendae sententiae, is to be inflicted by way of a
particular order or precept, it must be declared to have
been incurred (latae sententiae), or actually inflicted, in
writing or before two witnesses, and the reasons for it
given. The text says ordinarie, as a rule, because the
suspensio ex informata conscientia (see can. 2193) does
not require that the reasons be indicated.
G I Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
TITLE VI
WHO ARE LIABLE TO THE COERCIVE
POWER OF THE CHURCH
The Code first determines the obligatory force of penal
laws, as such (and the exceptions, can. 2227) ; then it fixes
responsibility for the crime, psychologic conditions and
partnership, the moment for incurring the penalty and
its actual infliction, and, finally, it deals with plural
and inchoate crimes.
general rules and exceptions
Can. 2226
§ 1. Poenae adnexae legi aut praecepto obnoxius
est qui lege aut praecepto tenetur, nisi expresse ex-
imatur.
§ 2. Licet lex poenalis posterior abroget anteriori,
si tamen delictum, quando lex posterior lata est, iam
commissum erat, applicanda est lex reo favorabilior.
§ 3. Quod si lex posterior tollat legem vel poenam
tantum, haec statim cessat, nisi agatur de censuris iam
contractis.
§ 4. Poena reum ubique terrarum tenet, etiam reso-
luto iure Superioris, nisi aliud expresse caveatur.
Can. 2227
§ 1. Poena nonnisi a Romano Pontifice infligi aut
declarari potest in eos de quibus in can 1557, § 1.
03
>Ie
f~* ^ .. %\s* Original fro m
UNIVERSITY OF WISCONSIN
94 PENALTIES
§ 2. Nisi expresse nominentur, S. R. E. Cardinales
sub lege poenali non comprehenduntur, nee Episcopi
sub poenis latae sententiae suspensionis et interdicti.
i. The general rule is that those who are subject to laws
or precepts are also subject to the penal sanctions at-
tached thereto, unless they are expressly exempted.
Hence
a) The lawgiver himself is not subject to purely ecclesi-
astical penalties by compulsion (vi coactiva), though
morally speaking, or from a sense of propriety (vi
directive), he may be said to be subject to them. Practi-
cally it is better to say that he is not subject to his own
penal laws.
b) Rulers of nations and their offspring and successors
are immediately subject to the Roman Pontiff, who alone
can issue a condemnatory or declaratory sentence against
them (can. 2227, § 1).
c) Cardinals are immune from penal laws, unless they
are expressly mentioned as subject to them. Thus in the
Constitution of Pius X, " Vacant e Sede," (e.g., n. 51)
they are threatened with excommunication latae senten-
tiae if they reveal the proceedings of a papal conclave.
They are also mentioned in can. 2397, concerning the oath
they have to take.
d) Bishops, also titulars, are not subject to the penal-
ties latae sententiae of suspension and interdict, unless
they are expressly mentioned, as in can. 2370 and also in
can. 2373. Although the name " bishop " does not occur
in the latter canon, it certainly applies to Ordinaries.
Other penalties, like excommunication and privation of
income (can. 2398) they may also incur.
e) Exempt religious are subject to the penalties estab-
lished by common law, and as far as the common law sub-
tle
, ,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 2226-2227 95
jects them to the coercive power of the local Ordinary.1
Religious who do not enjoy the privilege of exemption,
are subject to the penal laws of the Code and also to those
established by the particular laws of their territory, unless
their approved Constitutions modify, restrict, or enlarge
the power of the local Ordinary over them,
f ) As to peregrini and vagi, see can. 14.
2. Sections 2 and 3 of can. 2226 establish the relation
of a later to a former penal law and to the consequence.
A later law abrogates a former one, but a crime committed
before the later law was passed is punishable according
to that one which is more favorable to the delinquent.
Thus, for instance, can. 2319, § 1, n. 1, is more fa-
vorable than the old law to those who have contracted
mixed marriages before a non-Catholic minister ; for the
Ordinary may absolve them, even though they have con-
tracted the marriage before the Code went into effect
(May 18, 1918).*
If the later law abolishes the former entirely, or only
as to its penal sanction, the penalty ceases immediately
and the delinquent is therefore immune from punishment,
no matter whether he has not yet been punished or has
undergone part of the punishment. On the privation of
active and passive vote or of office, e. g., in alienation, see
can. 2347. An exception to this last named rule (§ 3)
are censures, which remain if contracted by reason of a
former law now abolished (can. 2248, §1).
3. An ecclesiastical penalty binds the delinquent every-
where, even after the superior who inflicted it has gone
out of office. This applies to penal laws in general, for
1 Sec can. 616 f.; 1425, § 2. Con- only ij mentioned; Hollweck, /. e.t
ceming the interdict, a probable p. 132; however, see 2269, | 2.
opinion formerly exempted regulars 2 Formerly they were suspected of
from incurring the tame, if clerks heresy, according to " Apostolical
Scdis," n. 1.
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
96 PENALTIES
there are, e.g., local interdicts which are merely terri-
torial (see can. 2247, § 2). A priest suspended by
his bishop from saying Mass cannot say Mass in an-
other diocese, " unless the penalty contains a clause to
the contrary.'' Thus it may be that the bishop sus-
pends one from saying Mass in his diocese a only because
of scandal given there. The reason for this law lies
in the fact that the coercive power emanates from the
supreme lawgiver, who holds the keys of the whole
Church and watches over the unity and uniformity of
ecclesiastical discipline. The Orientals, however, are not
subject to the ecclesiastical penalties established in the
Code (Can. 1.).
o<
a
a
a
THE CRIMINAL ACT
in
Can. 2228
Poena lege statuta non incurritur, nisi delictum
fuerit in suo genere perfectum secundum proprietatem
verborum legis.
Since every penalty supposes a crime, it is evident that
no penalty established by law can be incurred, unless the
crime defined in the law has been fully committed. Hence
a diagnosis must precede. For instance, if one is accused
of simony in conferring or obtaining an ecclesiastical of-
fice, it must be proved that a bribe or price was offered
and accepted, or that an unlawful contract was made.*
If women violate the enclosure of men's convents, the
fact of violation must be established; if the limits of
S Whether the suspension ex in- 3188; thus Eichmann, /. c, p. 67),
formata conscicnlia erases wilh the but implied by the warning that the
biihop'c departure from office is not penalty should be temporary only,
expressly stated in the Code (can. 4 Cfr. c. 4, X, V, 3; can. 3392.
oogle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 2229
97
enclosure are not clearly indicated, there can be no breach
of enclosure. 6
The means for proving criminal acts are pointed out in
can. 1747-1836. Experts and ocular inspection have a
place here.
psychological and physiological requisites
of crime and criminal cooperation
Can. 2229
§ 1. A nullis latae sententiae poenis ignorantia af-
f ectata sive legis sive solius poenae excusat, licet lex
verba de quibus in § 2 contineat.
§ 2. Si lex habeat verba: praesumpserit, ausus
fuerit, scienter, studiose, temerarie, consulto egerxt
aliave similia quae plenam cognitionem ac delibera-
tionem exigunt, quaelibet imputabilitatis imminutio
sive ex parte intellectus sive ex parte voluntatis eximit
a poenis latae sententiae.
§ 3. Si lex verba ilia non habeat:
i.° Ignorantia legis aut etiam solius poenae, si
fuerit crassa vel supina, a nulla poena latae sententiae
eximit: si non fuerit crassa vel supina, excusat a me-
dicinalibus, non autem a vindicativis latae sententiae
poenis ;
2.0 Ebrietas, omissio deb; :e diligentiae, mentis
debilitas, impetus passionis, si, non obstante im-
putabilitatis deminutione, actio sit adhuc graviter cul-
pabilis, a poenis latae sententiae non excusant ;
3.0 Metus gravis, si delictum vergat in contemptum
fidei aut ecclcsiasticac auctoritatis vel in publicum
animarum damnum, a poenis latae sententiae nul-
latenus eximit.
5 See can. 334a, n. a.
§le
Original from
UNIVERSITY OF WI5CON5I
■
98 PENALTIES
§ 4. Licet reus censuris latae sententiae ad normam
§ 3, n. 1 non teneatur, id tamen non impedit quoininus,
si res ferat, congrua alia poena vel poenitentia affici
queat.
Can. 2230
Impuberes excusantur a poenis latae sententiae, et
potius punitionibus educativis, quam censuris aliisve
poenis gravioribus vindicativis corrigantur; puberes
vero qui eos ad legem violandam induxerint vel cum
cis in delictum concurrerint ad normam can. 2209, §§
1-3, ipsi quidem pocnam lege statutam incurrunt.
Can. 2231
Si plures ad delictum perpetrandum concurrerint,
licet unus tantum in lege nominetur, ii quoque de
quibus in can. 2209, §§ 1-3, tenentur, nisi lex aliud;
exprcsse caverit, eadem poena; ceteri vero non item,
sed alia iusta poena pro prudenti Superioris arbitrio
puniendi sunt, nisi lex peculiarem poenam in ipsos
constituat
In can. 2202 the Code referred to ignorance as taking
away or diminishing imputability. This is the mental or
psychologic element which must be considered also in
meting out penalties. Besides ignorance, there are other
mental conditions, either transient or habitual, which may
influence the superior or judge in inflicting penalties.
These are mentioned in can. 2229 sqq. The general rule
is that the penalty must be proportioned to the responsi-
bility of the criminal.
1. Affected ignorance (ignorantia affectata), i.e., the
Go >gle
f ■ j ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 2229-2231 99
kind that is purposely fostered in order to avoid the
trouble of finding out the law and to have a pretext for
transgressing it, does not render one immune from incur-
ring the penalties latae sententiae, no matter whether this
ignorance concerns the law itself or its penal sanction, —
not even if the law contains words like these: prae-
sumpserit, ausus fuerit, scienter, studiose, temerarie, con-
sulto egerit, i. e., even though the law expressly demands
a dolus. The reason is evident. For such ignorance is
culpable and arises from a dolus, the degree of which is
therefore not only diminished but increased. A cleric,
therefore, who would purposely abstain from reading the
penal Code or from informing himself of its provisions,
could hardly be excused from dolus, and the penalties
latae sententiae could be declared against him.
2. If the law contains the terms quoted above: prae-
sumpserit, etc., or similar ones which require full knowl-
edge and deliberation, every degree of diminished imputa-
bility, either of the intellect or the will, renders the of-
fender with such lessened responsibility immune from
penalties laiae sententiae; not so much because of the
objective verification of the criminal act, as on account of
his subjective state of mind. For instance, one who
knowingly reads a book forbidden in virtue of can. 2318,
§ 1, incurs excommunication especially reserved to the
Apostolic See, but if he did not know that it was a hereti-
cal book, or one forbidden by Apostolic letter, he does
not incur excommunication.
3. If the law does not contain the terms praesumpserit,
ausus fuerit, etc. :
a) Crass or supine ignorance (crassa vel supina igno-
rantia) exempts from no penalty latae sententiae. This
ignorance supposes, not so much a positive as a negative
■"■
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
too PENALTIES
attitude towards the law; hence crassa vel supina igno-
rantia is imputed to one who takes little or no trouble to
find out the truth. Such ignorance, of course, is imput-
able in proportion to the obligation one is under to acquire
the knowledge in question. Less imputable is the ignor-
ance called purely vincible, for it supposes that one has
at least made an effort, even though insufficient, to over-
come one's ignorance. Such ignorance (here called " non
crassa vel supina.") excuses from censures (a medicinali-
bus), but not from vindictive penalties latae sententiae.
The reason for this difference must be sought in the in-
•a
tensiveness of the corrective penalties and their more
individual character, whereas the vindictive penalties are
intended more or less for the public weal and order, just
as irregularities, the ignorance of which does not excuse
from incurring them, concern, the clerical decorum in
directo and the person in obliquo.
b) Drunkenness, carelessness, mental weakness, im-
petuous passions do not exempt from penalties latae HI**
tent\ael provided the responsibility, though somewhat
diminished, is still grievously culpable; thus procuratio
abortus (can. 2350), though committed in the heat of
passion, would still be subject to excommunication.
c) Grave fear by no means excuses from penalties
latae sententiae, if the crime involves contempt of faith
or of ecclesiastical authority, or public damage to souls.
Hence no one is excused from the penalty laid down in
can. 2314, § 1 (apostasy from faith), nor from that estab-
lished in can. 2335, which forbids membership in Masonic
societies which conspire against ecclesiastical and civil
authority. The public welfare is jeopardized by the vio-
lation of the seal of confession (can. 2369).
§ 4, lastly, rules that a delinquent who, on account of
purely vincible ignorance, does not incur censures, may
Q
oogle
f^ ^ s ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 2229-2231 101
nevertheless be punished, if expedient, by some penalty
or penance. This, of course, should be guaged according
to the publicity, scandal, and damage incurred.
Can. 2230 considers, first, impuberes as such, and then
as instruments of puberes, whilst can. 2331 properly de-
fines partnership in crime.
1. Impuberes, »*. e.t boys before the fourteenth and girls
before the twelfth year of age, completed, are excused
from penalties latac scntentiae, and should be punished
rather by reformatory educational means than by censures
and severe vindictive penalties. To the point is can. 2342,
n. 2, concerning the breach of enclosure in men's con-
vents. There women are named, but girls (impuberes)
do not incur the excommunication, whereas religious su-
periors and others who admit a girl under age incur it.8
The difference is palpable.
2. Therefore puberes who induce impuberes to violate
a law or who are partners to a crime, according to can.
2209, §§ 1-2, incur the legal penalty, though the impu-
beres who are coaxed into, or cooperate in, the crime are
free from any penalty latae sententiac. This difference is
based upon responsibility, and the age limit must here he
taken mathematically ; because this is the more benign
interpretation and more secure in the application. The
maxim " malitia supplet aetatem" should not be applied
here.
3. In cases of partnership in crime can. 2209, §§ 1-3
must be consulted as to the responsibility of the parties.
Those who concur in a crime by conspiracy, or as accom-
plices or effective counsellors and cooperators, are sub-
ject to the same penalty, though only one (in the singular)
is mentioned in the penal law ; unless the text has a con-
6 Yet there is a controversy concerning the point, as shall be seen
under said canon.
G 1 Original from
OU^IL UNIVERSITY 0FWI5C0NSIN
■
c
102 PENALTIES
trary provision.7 Others mentioned under can. 2209 are
to be punished proportionately, according to the prudent
discretion of the superior, unless the law provides a spe-
cial penalty.
WHEN PENALTIES TAKE EFFECT
T
Can. 2232
§ z. Poena latae sententiae, sive medicinalis sive
vindicativa, delinquentem, qui delicti sibi sit conscius,
ipso facto in utroque foro tenet ; ante sententiam tamen
declaratoriam a poena observanda delinquens ex-
cusatur quoties cam servare sine infamia nequit, et in
foro externo ab eo eiusdem poenae observantiam ex-
igere nemo potest, nisi delictum sit notorium, firmo
praescripto can. 2223, § 4.
§ 2. Sententia declaratoria poenam ad momentum
commissi delicti rctrotrahit
Can. 2233
§ 1. Nulla poena infligi potest, nisi certo constet
delictum commissum fuisse et non esse legitime prae-
scriptum.
§ 2. Licet id legitime constet, si agatur de infiigenda
censura, reus reprehendatur ac moneatur ut a con-
tumacia recedat ad normam can. 2242, § 3, dato, si
prudenti eiusdem iudicis vel Superioris arbitrio casus
id ferat, congruo ad resipiscentiam tempore; con-
tumacia persistente, censura infligi potest.
1
i- A penalty latae sententiae, whether corrective or
vindictive, binds the delinquent ipso facto both in the ex-
-
T Conspirators, can. 3331, 9 »| can. 334a, nn. 1, 3; -\i<i; cooperatora,
3347; accomplices, can. 3338, | 3; can. 2363, 3371, etc.
KjbyC jle
J % Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2233 103
ternal and in the internal forum, provided he is conscious
of the crime. For instance, a bishop-elect who neglects
to receive episcopal consecration within the time pre-
scribed, is bound in conscience and publicly to apply to
himself the penalty stated in can. 2398.
However, says the text, if defamation should actually
follow the application of this penalty, the delinquent is
excused from executing the penalty as long as no declara-
tory sentence has been issued. This clause does not state
in what forum, whether the external or the internal, the
delinquent is excused. The word infamia seems to point
to the external forum, because the penitential forum
appears, to us at least, not to entail defamation. There-
fore we should say that in the internal forum the penalty
must be observed if it can be done without the loss of
good name and if the penalty is divisible.8 Thus in the
example taken from can. 2398, the bishop-elect might
apply the forfeited income to charitable purposes without
great risk of defamation. The second clause of can.
2398 could hardly be observed without defamation.
The text continues : and in the external forum no one
is allowed to demand this self-execution of tf\e penalty on
the part of the delinquent, unless the crime is notorious,
with due regard, however, to can. 2223, §4, which
leaves the issuance of a declaratory sentence to the dis*-
cretion of the superior and demands it only when the
parties insist or when public welfare is at stalce. Thus
a priest may be interested in the declaration of a sentence
against another because of the title he has to a parish.
A declaratory sentence does not constitute a penalty, but
simply affirms that a penalty has been incurred, and
hence throws the penalty back to the moment when the
sWernx, /. c, VI, n. 63, p. 74.
jfe
Original fro rn
UNIVERSITY OF WISCONSIN
N
■
104 PENALTIES
crime was committed. The consequence is plain, espec-
ially with regard to fines, which run from the moment
when the crime was committed. B
2. No penalty can be inflicted unless it is certain that
the crime has been perpetrated and legitimate pre-
scription has not set in, according to can. 1703-1705.
Besides, although these conditions may be verified, no
censure should be inflicted (censura ferendae sententiae)
except after rebuke and warning have been administered
to the delinquent. To that purpose also a certain term
should be granted, according to the prudent discretion of
the judge or superior, and only if contumacy is persisted
in, should the censure be inflicted.
It may be well to add that theory at least permits one
who is accused and condemned to a manifestly unjust
sentence, not to heed the sentence, at least in the internal
forum,10
MULTIPLIED AND ATCTvMPTED CRIMES
Can. 2234
Qui plura delicta commisit, non mpdo gravius puniri,
sed si, prudenti iudicis arbitrio, res id ferat, subiici
etiam vigilantiae vel alii rernedio poenali.
Can. 2235
Delictum frustratum aut conatus delicti, nisi
tanquam distincta delicta legerplectantur, possunt con-
0 As to Ihc effecti of excommu- manifestly innocent to shirk the
nication and suipcniion, see can. penal consequences if no scandal or
3361, 2364, J.184. contempt of authority is to be
10 As lo the external jorum, see feared; Eichmann, /. c, p. 68.
can. »i9i many authors permit the
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
-
CANON 2235 105
grua poena pro gravitate puniri, salvo praescripto can.
2213, §3.
Those who have committed several crimes, either of the
same kind, or of different kinds, should not only be more
severely punished, but also subjected to vigilance and other
penal remedies. A frustrated or attempted crime may be
punished proportionately to the actual crime, unless the
attempt itself is punishable in law as a distinct crime (see
can. 2213, §3.)
.'Ie
k ,|,, Original from
UNIVERSITY OF WISCONSIN
Q
TITLE VII
REMISSION OF PENALTIES
The Code certainly takes poenarum remissio for the
authoritative removal of penalties. For by committing a
crime one has incurred the bond of guilt {vinculum
culpae), which in turn introduces another bond, vis., that
of penalty {vinculum poenae.) This juridical bond,
established by the coercive power, can be solved only by
the same authority. The Code does not take into con-
sideration flie cessation of penalties by the death of the
delinquent and by atonement. Death dissolves every-
thing, but not the effect of censures. Atonement ex-
tinguishes penalties, inasmuch as it has the character of a
temporarily fixed penalty.1 Thus the fasts and pilgrim-
ages of the penitential discipline may be looked upon as
temporary punishments, which cease after the lapse of
time for which they were decreed. But the Code does
consider prescription, by which the criminal action may
be quashed (can. 2240; see can. 1703).
WHO MAY GRANT PARDON
Caa 2236
§ 1. Remissio poenae sive per absolutionem, si
agatur de censuris, sive per dispensationem, si de
poenis vindicativis, concedi tantum potest ab eo qui
poenam tulit, vel ab eius competente Superiore aut
successore, vel ab eo cui haec potestas commissa est.
1 Wernz, L c, VI, n. 8a f.. p. eo f.
106
;Ic
I ^ Original from
UNIVERSITY OF WISCONSIN
CANON 2236
107
a
N
§ a. Qui potest a lege cxirnerc, potest quoque poe-
nam legi adnexam remittere.
§ 3. Iudex qui ex officio applicat poenam a Superiore
constitutam, earn semel applicatam remittere nequit.
§ 1. Penalties may be removed by way of absolution or
dispensation. The former is applied to censure, the latter
to vindictive penalties. But both presupposes jurisdiction
over the person as well as over the matter at issue, because
of the juridical tie contracted by penalty.
Therefore only he can absolve or dispense who has
established or inflicted the penal law or penalty. Only,
the Pope can absolve or dispense from all penalties, even
without the valid reason 2 otherwise required for dispen-
sations and absolutions imparted by prelates inferior to
the Sovereign Pontiff. A sufficient reason is the amend-
ment and the reparation of damage or scandal.
Ordinaries may dispense or absolve from penalties
which they themselves, not the common law, have
established or inflicted.3
TTie successors of these ecclesiastical authorities are
endowed with the same powers as their predecessors. The
superior ecclesiastical authority can dispense or absolve
from penalties inflicted by the inferior; hence the Roman
Pontiff may dispense or absolve from penalties inflicted
by the Ordinaries in virtue of their ordinary power, even
if the case was reserved, not by common, but by diocesan
law.
Finally, those who are commissioned by superiors may
2 He needs no reason because of
his plenitude of power w foro
txterno, but if the contrition or
attrition required for absolution in
the sacramental forum should be
wanting', the absolution may be
►ogle
valid in foro esterno, but without
effect mi foro interno.
s Rations delicti (can. 1566, 9 1)
the ordinary in whose diocese the
crime has been committed, is com-
petent to absolve.
Original from
UNIVERSITY OF WISCONSIN
■
108 PENALTIES
dispense or absolve in virtue of that commission within
the limits of their mandate. The Vicar-General, as he
needs a special commission to inflict penalties * also needs
a special commission to dispense or absolve from them.
§ 2. Those who may exempt from the observance of a
law, may also remit the penal sanction attached to the
same, and consequently render the delinquent immune
from punishment. Note that the inferior, say the
Ordinary, cannot exempt from common law, because
eximere a lege supposes a legislative power not granted to
the Ordinaries with regard to the common law. For this
the Ordinaries, i. e., all prelates inferior to the Pope, need
special faculties. However, can. 81 would also seem to
apply here ; 6 also can. 66, § 3, which requires a faculty
in order to be capable of receiving a favor or
privilege. The faculty to dispense from certain laws, e. g.,
impediments, does not include the faculty to absolve from
the penalties, e. g.t of excommunication, but only the
power to absolve from the penalty ad hoc, •*. e., to obtain
the favor.9
§ 3. The judge who ex officio applies a penalty estab-
lished by a superior, cannot remit the penalty once in-
flicted. Having rendered the sentence, his office is
completed.
The judge is not above the law, but subject to it.
THE ORDINARY'S POWER WITH REGARD TO COMMON LAW
Can. 2237
§1. In casibus publicis potest Ordinarius poenas latae
sententiae iure communi statutas remittere, exceptis :
4 See can. 2220, 5 2. « See can. 2265, fi 2; Eichmano,
5 Concerning censures, special /. c, p. 72.
provisions are mode in can. 9254.
.'Ie
£ * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
p
CANON 2237 109
i.° Casibus ad forum contcntiosum deductis;
a.° Censuris Scdi Apostolicae rcscrvatis;
3.0 Poenis inhabilitatis ad beneficia, officia, dig-
nitates, munera in Ecclesia, vocern activam et
passivam eorumve privationis, suspensionis perpetuae,
infamiac iuris, privationis iuris patronatus et privilegii
seu gratiae a Sede Apostolica concessae.
§ 2. In casibus vero occultis. firmo praescripto can.
3354 et 3290 potest Ordinarius poenas latae sententiae
iure communi statutas per se vel per alium remittere,
exceptis censuris specialissimo vel speciali modo Sedi
Apostolicae reservatis.
§ 1. The Ordinary may remit all penalties latae
sententiae, either corrective or vindictive, established by
common law, except the following:
a) Cases brought before the civil ecclesiastical court,
as when civil action is instituted in order to obtain damages
for a crime.1
b) Cases reserved to the Apostolic See, either simply, or
especially, or most especially.8
c) Penalties entailing inability to hold benefices, offices,9
dignities in the Church, penalties referring to the active
and passive vote and privation thereof, perpetual sus-
pension, infamy by law, privation of advowson, and
privileges or favors granted by the Apostolic See.
As to the public character of crimes, see can. 2197.
The power of Ordinaries is here restricted perhaps
more than some authors were inclined to admit.10 But
the underlying reason is that given by these authors, vis.,
? See can. 2210, | 1, n 2. kind, for instance, rector, lector,
S See can. 224$, S J- sexton.
9 Munera, i. e., charges of any 10 Thesaurus-Giraldi, /. c, P. I,
c. 23, ed. cit., p. jo.
jle
Original fro ni
UNIVERSITY OF WISCONSIN
no PENALTIES
that too frequent recourse to the Apostolic See be not
required. Besides, there is no doubt that minor crimes
also are here supposed, because all the reserved censures
are excluded. But the text also excludes from the power
of the Ordinary a category which was formerly considered
as included therein, at least if the penalty had no special
clause attached.11 The reason for this restriction is
palpable : all the cases enumerated under n. 3 concern the
public welfare of the Church, not merely that of the
delinquent.
The term " Ordinary " is limited here, as the Ordinary
cannot delegate another (can. 2237, § 2). But all the
Ordinaries mentioned in can. 198 are included. And
since the text simply says " Ordinary," the superiors of
exempt clerical orders enjoy this power over their subjects.
§ 2 of can. 2237 refers to occult cases with due regard
to censures (can. 2254) and occult vindictive penalties
(can. 2290). Now in such cases latae sententiae,
established by common law, the Ordinary as well as any
one delegated by him may remit the penalties. Ah
exception to this general rule are the censures which are
reserved either specialissimo or speciali modo to the Holy
See. In occult cases, the Ordinary may delegate another,
as per can. 199, § 2, either for each separate case or
habitually.
-
CONDITIONS AND MODE OF PARDON
Can. 2238
Poenae remissio, vi aut metu gravi extorta, ipso hire
irrita est.
11 Thcsaurus-Giraldi, /. c.
t
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2239-2240
in
Can. 2239
§1. Poena valide rcmitti potest praesenti vel absenti,
absolute vel sub conditione, in foro externo vel interno
tantum.
§2. Licet poena etiam oretenus resnitti possit, si
tamen scripto inflicta fuerit, expedit ut etiam eius
remissio scriptis concedatur.
Can. 3240.
Ad praescriptionem actionis poenalis quod attinet,
servetur dispositio can. 1703.
The remission of any penalty, whether by absolution or
dispensation, if extorted by physical compulsion or
grave fear, is ipso iure invalid. Hence serious threats to
use the civil power, which the abominable appellatio ab
ahusic 12 sometimes resorted to, are without avail either in
the internal or the external forum.
A penalty may be remitted not only when the person is
present, but also when he is absent,1* either unconditionally
or with a condition attached, for instance, to present him-
self to the superior, or provided the amendment has
lasted for a certain length of time. A remission may be
valid either in the court of conscience only or in the
external forum only.
Although a penalty may be remitted by word of mouth
it is more expedient that it be done in writing, if the
penalty was inflicted in writing. But writing is not re-
quired for the validity of a dispensation or absolution.
As to prescription of penal actions see can. 1703 (Vol.
VII of this commentary, pp. 148 sqq.).
13 Cfr. can. 0334, n. 4.
is Of coarse, in foro interno or,
rather, in the sacramental forum,
personal presence is required.
►ogle
Original fro m
UNIVERSITY OF WISCONSIN
■
pi
SECTION II
PENALTIES IN PARTICULAR
TITLE VIII
CORRECTIVE PENALTIES OR CENSURES
CHAPTER I
CENSURES IN GENERAL
Can. 2241
■
§1. Censura est poena qua homo baptizatus, delin-
quent et contumax, quibusdam bonis spiritualibus vel
spiritualibus adnexis privatur, donee, a contumacia re-
cedens, absolvatur.
§2. Censurae, praesertira latae sententiae, maxirae
excommunicatio, ne infligantur, nisi sobrie et magna
cum circumspectione.
Can. 2242
§1. Censura punitur tantummodo delictum exter-
num, grave, consummatum, cum contumacia coniunc-
tum ; potest autem f erri censura etiam in delinquentes
ignotos.
§2. Si agatur de censuris ferendae sententiae, contu-
max est qui, non obstantibus monitionibus de quibus
in can. 2233, §2, a delicto non desistit vel patrati de-
licti poenitentiam cum debita damnorum et scandali
112
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
-'
Q
CANON 2241-2242 113
reparatione agere detrectat ; ad incurrendam vero cen-
suram latae sententiae sufficit transgressio legis vel
praecepti cui sit adnexa latae sententiae poena, nisi
reus legitima causa ab hac excusetur.
§ 3. Contumaciam desiisse dicendum est, cum reum
vere delicti commissi poenituerit et simul ipse con-
gruam satisfactionem pro damnis et scandalo dederit
aut saltern serio promiserit; iudicare autem utrum
poenitentia vera sit, satisfactio congrua aut eiusdem
promissio seria, necne, illius est, a quo censurae abso-
lutio petitur.
The term censure is derived from the Latin censura,
which originally signified registration, much in the same
sense as our modern census. The office of censores was
created in 443 b. c. and gradually extended to the regimen
morion, or supervision of public morals, later to the
arrangements for the collection of the public revenue and
the execution of public works. As censors or inspectors
of public morals the censores were empowered to brand
with disgrace (ignominia) those guilty of acts which,
although not forbidden by any penal statute, were
denounced by public opinion. The branding with disgrace
was termed notio, or notatio, or animadversio censoria,
and the disgrace inflicted by it, nota censoria. To inflict
this note no previous judicial investigation or ex-
amination of witnesses was required, and the only effect
of the nota censoria, in itself, was to affix a stigma to the
individual. But, in addition to the mere disgrace thus
inflicted, the censors could, to a certain extent, deprive the
object of their displeasure of public honors and privileges,
but neither the dishonor nor the degradation were
necessarily permanent.1
1 Ramsay.T-anciani, Roman Antiquities, 1901, p. 198 ff.
G| r Original from
UOglt UNIVERSITY QFWI5C0NSIN
114 PENALTIES
Ecclesiastical tcrtninvlogy was uncertain up to the time
of Innocent III (1198-1216), inasmuch as all kinds of
ecclesiastical penalties were understood by censures. But
a decretal of the above-named Pontiff restricted the term
ccnsura to interdict, suspension, and excommunication,2
and this meaning was thenceforth permanently
established.* A censure then is defined by the Code as a
penalty by which a baptised person, delinquent and
contumacious, is deprived of certain spiritual goods or
goods connected with spiritual ones, until he has given
up his contumacy, and obtained absolution.
1) Censures generically belong to the class of penalties,
because they contain all the marks of a penalty.4 Hence,
although the corrective element is foremost in censures,
the character of penalty as retribution and reparation is
not entirely wanting.
2) The subject of censures must be baptized, delinquent,
and stubborn.
a) Homo baptisatus alone is the subject of censures;
no brute B is capable of punishment in the proper sense.
Baptism is necessary because the Church does not exercise
her judiciary power except over those who belong to her
fold." Consequently not even catechumens are subject to
ecclesiastical censures. On the other hand, any one who
is validly baptized, no matter what religion or creed or
sect he may profess, is dc iure subject to ecclesiastical
censures.7 Baptized non-Catholics, because of the
1 C. 20, X, V, 40. testation, not of punishment in-
8 Hinachius, /. c, V, 135, note Tolving guilt; Ballcrini PaJmieri,
4; HollwecV, L c, p. 84, note 1. Opus Thiol. Morale, 1894, ed. a,
* Sec can. 3215. Vol. VII, p. so, n. 49.
6 The anathema sometimes hurled 0 Trid.. Scs*. XIV. c. 3. de ref.
at irrational creatures — as we read 7 Trid., Scss. VII, can. 7; can.
in ancient documents — must be ia; Suarez, i •<• Censttris, disp. V,
understood of execration and de- sect. I, n. 35 (XXIII, 156).
>Ie
I , Original from
UNIVERSITY OF WISCONSIN
CANON 2241-2242 115
indelible character of Baptism, are also theoretically
subject to censures, but these are not enforced against
them by reason either of opportunity, or lack of the
necessary assistance, or infeasibility. Besides, there is no
doubt that the legislator has only Catholics in view, at
least directly.
It is hardly necessary to state that only a living
man can be properly censured. If excommunication
was at one time inflicted on the dead, it was only as a
warning to the living not to give them ecclesiastical
burial or offer ecclesiastical suffrages for their repose.
Consequently also the absolution given to such as died
with signs of penance, refers to the living and not to the
dead.8
b) A censure can be inflicted only for a delictum
(crime). This is described in can. 2195, anc* further ex-
plained in can. 2242, § 1. Only an external, grievous,
consummated and stubborn crime is censurable.
External is here used in opposition, not to occult,
but merely to internal sinful acts, as, for instance, an
internal heresy which remains entirely within the mind
and is never manifested.® A crime on the other hand (for
instance, homicide), may be wholly occult, and yet
external.
The crime must be grievous or grave, because the
external act itself must be grievously culpable. The
a
reason lies in the gravity of the penalty, which, ultimately
meaning exclusion from the kingdom of heaven, should
& Ballerini-Palmieri, /. c, n. 48. himself: "I don't believe," or pur-
0 Ibid., p. 64, n. 133: " ncque posely and with heretical intent re-
sufficit, quod quis, v.g., iniendcns fuse to genuflect or bow (like the
haeresim confirmare, mensam per- Greeks) to the Blessed Sacrament,
cutiat out dicat\ its est, quia per he would manifest his heretical be>
hoe rton jtignificatur hatrcais ex- Hcf externally.
tcrius." But if one would say to
oogle
% ,|,, Original fro rn
UNIVERSITY OF WISCONSIN
116 PENALTIES
not be inflicted except for such crimes as render one un-
worthy to enter that kingdom.10 But it must be observed
that, according to the common teaching of the schools, a
censure may be threatened even for a less serious trans-
gression, which in itself would not amount to a grievous
or mortal sin, provided the matter may become serious
by reason of scandal, or danger, or the purpose for which
the censure is threatened. Thus a theft, the matter of
which would constitute only a light fault, might cause
serious loss to a church.11 Thus, also, a pcrcussio lezris
clericorutn (see can. 2343, §4) may be placed under ex-
communication in order to prevent greater evil and to
enforce respect for the clerical state.
The proportion between the penalty and the reason for
which it is threatened must be reasonable.
The next characteristic of a crime is that it be coiisum-
mated (contsuwmtatum sivc completion in genere suo).
This is verified when the effect of the forbidden act has
followed. Beyond the intention of the legislator the penal
law cannot bind. For instance, the violation of enclosure
is complete if the whole body has moved within the
forbidden precinct (can. 2343). However, the legislator
may also punish an inchoate or attempted crime. For
instance, can. 2333 lays under excommunication the
prohibentes pronutlgationem vcl executionem litteras vel
acta Apostolicae Sedis. This class of persons incur ex-
communication, but the Apostolic letters may be
promulgated or executed notwithstanding this unjust
prohibition, which is against ecclesiastical liberty. There-
fore the wording and context of the law must be
weighed.12
10 S. Thomas, Sununa Thtol., HI, 11 Suarcz, L c, diip. IV, sect. 6.
Suppl., qu. 21, art. 3. n. 12 f. ; sec can. 2326,
12 BalleriniPnlmicri, /. c, VII, p.
65, n. 135 f. and n, 139.
.'Ie
£ * ^ v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2241-2242 117
c) The person to be censured must be contumacious,
in other words, crime must be connected with contumacy.
Although contumacy in legal parlance is defined as
contempt of court, the term has also a wider meaning,
viz., persistent disobedience, which is more explicitly de-
scribed in can. 2242, § 2.
Persistent disobedience presupposes knowledge of the
few which forbids acts under censure (can. 2209). It
also supposes that the act perpetrated against the law is
not only a past act, but endures as to its vicious character ;
because censures are corrective penalties.13 Hence if
penance is done and reparation is made, no censures can
be inflicted.
When does contumacy exist? The Code, can. 2242, §2,
distinguishes between a censure ferendae and a censure
latae senientiac. The former requires a canonical
admonition. Hence the ecclesiastical superior must,
according to can. 2143, issue a formal warning, in the
presence either of the chancellor or of another official of
the episcopal court, or before two witnesses, or by
registered letter, bidding the culprit to cease his criminal
conduct or to do penance for the crime committed and to
repair the damage and scandal done. Time must be given
in order to await the result of the warning, and only after
the term granted has expired without the desired result,
may contumacy be assumed.14 If no criminal warning
was issued, the sentence, even though valid,15 is unjust
and recourse or appeal is open to the censured. This
warning may, but need not, be repeated.
The judgment as to the existence of contumacy lies with
the superior. In order to incur a censure latae sententiae,
is Wernz, /. c, VI, n. 155, p. 164. mentioned in can. 1892 and 1894;
n Sec can. 2283, I a. Eicbraann, I. c, p. 77.
15 It would be invalid in the cases
Go< >gle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
1 18 PENALTIES
all that is required is to transgress the law or precept to
which the penalty latae sententiae is attached, unless the
culprit has a lawful reason or excuse. Consequently,
there is no need of canonical admonition, since the penal
law itself, threatening the penalty to be incurred ipso
facto, contains this admonition.10 The clause: " nisi
reus lepitinta causa ab hac excusetur" must be referred
to the reasons for or against imputability, as explained
in can. 2199-2206 and 2229.
Contumacy may be said to cease (can. 2242, §3) when
the delinquent repents of the crime he has committed,
makes proportionate satisfaction for the damage he has
caused and repairs the scandal given, or at least seriously
promises to do so. Whether the repentence is sincere, the
satisfaction sufficient, or the promise serious, must be
judged by the one who is asked to give absolution.
Here it may be added that a promise under oath is not
demanded by our text, although the Roman Ritual 1T
appears to require it.
It should be clearly understood that these marks of
crime must all concur simultaneously; if but one of them
is lacking no censure is incurred.
3. The effect of a censure is privation of certain
spiritual goods or things connected therewith. This is
the proximate purpose or effect of censures, which are
spiritual penalties and therefore deprive the delinquent of
spiritual bcncHts. When temporal goods are mentioned,
they must be related to spiritual goods. Thus, e.g., a
suspension (qua censure) may deprive a cleric of bene-
Q
"\
10 Cfr. c. 26, X, II, 38. Concern- preceded by a canonical admom-
ing a declaratory sentence required tion; see Suarez. !. c, disp. Ill,
for a censure latae sententiae, see sect. 10, n. 19 IT.; BaUerini-Palroieri,
can, J3J3, I 4. A censure latae t. c, VII, p. ■''.', n. 165 f.
sententiae which requires a declara- l" Tit III, c. 3, n. 2; see c 15,
tory sentence only, need not be X, V, 39.
oogle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 2241-2242 119
ficiary emoluments, but only in relation to his office, which
is something spiritual. Excommunication may deprive
one of exercising legitimate functions, but only in order to
ecclesiastical office ; it may also render one vitandus, but
only with regard to the faithful as such. The specific
benefits of which the censured are deprived are enumer-
ated under the single headings. Although privation is
the main and primary effect of censure enforcement, yet
obedience and submission, repair of damage and scandal
are also intended as subordinate ends.18
4. Censures do not cease automatically with contumacy
and subsequent amendment, but require formal
absolution. It would be scandalous, to say the least, to
teach that censures cease in the court of conscience after
the culprit has amended his conduct and is no longer
contumacious ; 10 see can. 2248 ff.
Can. 2241, §2 admonishes all concerned to make a sober
and careful use of censures, especially of censures latae
sententiae, and more particularly of excommunication.
This warning of the Council of Trent20 has repeatedly
been emphasized. Thus missionaries were told not to be
misled by civil governors into pronouncing censures in
order to ascertain the temporal estates of deceased
persons." The S. Congregation also refused to permit
Vicars Apostolic to censure those who trafficked in or used
opium or arach. The reason given was that censures
constitute the very nerve of ecclesiastical discipline and
should therefore be used sparingly and for grave,
canonical, and approved reasons only."
ll Suarex, /. C„ diap. VI, »ect. i, 21 S. C. P. F., Aug. 18, 1760
nn. 1-3 (XXIII, 175). (Coll., n. 434).
19 Prop. 44- damn, a S. 0., March 22 S. C. P. F\, June 23. 1830;
18. 1666 (Denzinser, n. 1015). Sept 30. 1848 (Coll., nn. 815. to8$).
20 Seta. XX J Vj ft 3. dt rej.
>Ie
£ * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
-'
■
pi
120 PENALTIES
Excommunications may also be inflicted cm unknown
delinquents, says can. 2242, §1. For although the intention
must be directed to a certain subject, yet if that person is
determined in one way or another, it is sufficient for the
censure to bind him, even though he may be unknown
as such or such, but merely as the perpetrator. **
There is no difficulty as to a censure latae sentential, be-
cause this censure is incurred by the very perpetration of
the deed, but it may need a declaratory sentence. Cen-
sures ferendae sententiae require canonical admonition.
A public edict issued either in the church or in some
official publication would be sufficient.**
APPEAL OR RECOURSE FROM CENSURES
Can. 2243
§1. Censurae inflictae per sententiam iudicialem,
statim ac latae fuerint, exsecutionem secumferunt, nee
ab eis datur appellatio, nisi in devolutive* ; item a cen-
suris ad modum praecepti inflictis datur rccursus, scd
in devoluti vo tan turn.
§a. Appellatio vero vel recursus a sententia iudiciali
vel praecepto comminante censuras etiam latae sen-
tentiae nondum contractas, nee sententiam aut prae-
ccptum nee censuras suspendunt, si agatur de re in qua
ius non adrnittit appellationem vel recursum etiam
cum effectu suspensivo; secus censuras suspendunt,
firma tamen obligatione servandi id quod sententia
aut praecepto mandatur, nisi reus appellationem vel
recursum interposuerit non a sola poena, se4 ab ipsa
quoque sententia vel praecepto.
28 Suarez, /'.- Centuris, diip. V. « Ibid., disp. Ill, uct. zi, n. 5
Met. a, n. a i. (Vol. XXIII, 158 f.) (XXIII, 65).
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 2243 I21
Ecclesiastical discipline requires that prelates in
inflicting penalties for the correction and reformation of
morals should not be handicapped by dilatory appeals."
Therefore, the Code safeguards the authority of the
ecclesiastical judge by clearly eliminating censures latae
scntcntiae, which require no execution of the sentence,
but go into effect automatically. But a censure
inflicted a hire tantum may here be understood be-
cause, according to can. 2217, §1, n. 3, it may require a
condemnatory sentence, which would certainly mean a
judicial sentence. But a censure inflicted ab homine, by
way of a special precept, like that of the suspensio ex
infortnata conscientia, is here expressly mentioned.
Note the difference between appeal and recourse; an
appeal supposes a judiciary sentence, a recourse, either a
decree or a decision ; an appeal is permitted to a tribunal
only, recourses are disposed of administratively by the
Roman Congregations.20
§1 of can. 2243 rules:
1. That censures itiflicted by judiciary sentence take
effect immediately and must, as a r,ule, be carried out,
An appeal, if properly lodged, has a dcvolutk/e effect,
i. e., the whole case is thrown upon the court of appeal,
but the one thus censured must conduct himself as if he
were censured, *. e., abstain from e^ery act of order,
jurisdiction, or administration forbidden by the censure.
However, this text evidently presupposes that the sentence
was valid; and since the text speaks of a judiciary
sentence, its validity may be impaired for three reasons ;
(a) if the judge had no jurisdiction at all, as, for instance,
a superior who has resigned or otherwise gone out of
office; (b) if an essential form was neglected, for
28 C. I3i X, I, 31. 20 Can. 1601.
>gle
Original fro m
UNIVERSITY OF WISCONSIN
122 PENALTIES
St
instance, the summons ; (c) if the reason was unjust or
insufficient, because the penalty, being a grave one, re-
quires a just and reasonable cause for being inflicted.
Whenever one of these reasons occurs, the censure does
not bind. What is to be done? The whole judgment
must be reversed, for an appeal proper is impossible, as
can. 1880, 30 clearly states. But here it must also be
noted that, although the exception of nullity may be
lodged after a definite sentence (Benedict XIV, "Ad
militantis" n. 36), yet the exception of nullity does not,
as a rule, impede the execution of the sentence. We said
•a
" as a rule/' for if the nullity is evident or notorious, or
can be immediately proved, the exception quashes the
effect of the sentence or execution."
2. The text states that from censures inflicted by way of\
precept only recourse, and that in devolutivo, is permitted.
Thus a suspensio ex informata conscientia admits only
recourse to the S. C. Concilii, in devolutive. But note
well that only censures, not vindictive penalties, have this
devolutive effect.
§2 of can. 2243 regards censures not yet inflicted or
incurred, but merely threatened. The threat may be
pronounced by a judge in the form of a judiciary sen-
tence, although the law itself may have determined the
penalty (i. e., censure), or it may be pronounced by a
superior in the form of a special precept, as is prescribed
for non-residing pastors. A superior of exempt clerical
religious may issue such a precept in an important matter
of discipline. Again notice the difference between appeal
and recourse with suspensive or devolutive effect:
1. // tlie matter is such as to admit of no appeal or re-
course with suspensive effect, such an appeal or recourse
27 Can. 1893.
jle
k ,| , Original from
UNIVERSITY OF WISCONSIN
CANON 2244 123
a
suspends neither the judiciary sentence (or precept) nor
the censure threatened but not yet incurred, even though
it be a censure latae sentential. No appeal is allowed in
the cases mentioned in can. 1880. Recourse in devolutivo
only is provided in can. 345. 5*3. §2, 1340, §3. 1395 and
i I428> §3-
2. If the matter in question admits of an appeal or a
recourse with suspensive effect, then a twofold hypothesis
is possible.
a) The appellant may lodge his appeal against the cen-
sure only, without dodging or shirking the obligation of
fulfilling the command stated in the sentence or precept.
In that case the censure is suspended, but the obligation of
complying with the substance of the sentence or precept
remains. For instance, the sentence may demand
restitution of stolen church property or reparation of
damage caused by homicide, robbery, incendiarism,28 or
by giving up a supposed marriage or concubinage.29
b) If the appeal or recourse is lodged not only against
the penalty (i.e., the censure), but also against the sen-
tence or precept which supposedly contains both penalty
and obligation, both are suspended. Hence the appellant
is neither censured nor obliged to repair eventual damages
or perform the act prescribed by the sentence or precept.
p
MULTIPLICATION OF CENSURES
Can. 2244
1. Non solum diversae, sed etiarn eiusdem speciei
censura potest in eodem subiecto multiplicari.
§2. Censura latae sententiae rnultiplicatur:
-
<
28 See can. 2346; 2348; 3354. 29 See can. 3356; 2357. 8 *•
8^
% ,1,., Original from
UNIVERSITY OF WISCONSIN
■
124 PENALTIES
i.° Si diversa delicta, quorum singula censuram se-
cumferunt, eadem vel distincta actione committantur ;
2.0 Si idem delictum, censura punitum, pluries re-
petatur ita ut plura sint delicta distincta;
3.0 Si delictum, diver sis censuris a distinct is
Superioribus punitum, semel aut pluries com-
mittatur.
§3. Censura ab homine multiplicatur, si plura prae-
cepta vel plures sententiae vel plures distinctae partes
eiusdem praecepti aut sententiae suam quaeque cen-
suram infligant.
The whole or at least the main difficulty concerning the
multiplication of censures seems to arise from their effect,
i. e., the privation of spiritual benefits. Suarez refutes it
effectively.80 Privation is indeed the primary object or
end of censures, not, indeed, mere privation, but its pos-
itive cause, and this may be multifarious. Mortal sin,
for instance, deprives the soul of sanctifying grace, and,
when multiplied, produces a multitude of stains.
Besides, one censure does not exhaust the power of the
ecclesiastical judge, which, on the contrary, remains intact,
and may, therefore, again be used against the same
delinquent.
Finally, multiplied censures are intended to terrify and
deter, and to lend additional weight to the authority of
the law.
The multiplication of censures is necessarily bound up
with the specific and numerical distinction of sins; and
therefore the difficulties besetting this subject also adhere
in the one here under discussion.
The Code begins by stating that censures may be mul-
tiplied, not only specifically, but also numerically in one
ao Dg Censuris, disp. V, sect, a, n. 6.
Go >gle
k ,1 ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2244 125
a
and the same subject. Thus a man may be excom-
municated, suspended, and interdicted all at the same time,
as we know from the common formula of absolution.
Neither is there any difficulty in that, because these pri-
vations differ. The objection mentioned above is directed
only against the same kind of censure. May one be twice
excommunicated? The Code says, yes, and then dis-
tinguishes between censures latae sententiae and cen-
sures ab homine.
1. Censures latae sententiae are multiplied:
a) When several crimes, each of which has a censure
attached, are committed by the same act or by different
acts.
This is a specific distinction of crimes, although the act
may be one and the same, or the acts may be morally and
physically distinct If the acts differ, the case is evident.
But if the act is, at least physically, one and the same, it
seems strange that two or more censures should follow.
Yet if we distinguish the reasons for the sources from
which the censures are established, it is but logical to
assume diversity, as of causes, so of effects. Take the
example of one dragging a bishop by force before a lay
tribunal. There would be a violation of can. 2341 and
of can. 2343, §3 (privilegium fori and canonis). A nun
with solemn vows and papal enclosure, who would leave
the enclosure to contract civil marriage before a non-
Catholic minister, would incur four censures, vis., under
can. 2319, §1, n. I, can. 2341, 3, can. 2385 (as apostate),
and can. 2388, — all these being specified censures inflicted
for specific reasons.
b) There is also multiplication if the same crime is
repeated so that the repeated acts constitute distinct crimes.
Two characteristics distinguish acts from one another )
Q
>ogle
/"" -» ^ iL» Original from
UNIVERSITY OF WISCONSIN
ia6 PENALTIES
St
o>
interruption and diversity of object. If an act is morally
and physically interrupted, so that the posterior act is not
coherent with the anterior, these acts are distinct. On the
other hand, if an act lasts for some time, but is inspired
by the same motive and continued under the same impetus,
the act is one, for instance, a protracted beating of a
clergyman."1 When the object or matter of one criminal
act is diverse, authors differ as to the multiplication of
censures. For instance, if one would bring two clergymen
before a lay tribunal or converse with two vitandi at the
6ame time, or would kill two clerics by the same stroke,
Suarez and others believe it probable that only one ccn-
sure would be incurred, because the action is essentially
one and constitutes but one sin.82 The Code is not against
this assumption.
c) If a crime laid under diverse censures by various
superiors is perpetrated once or oftener, a multiplication
of censures may be incurred. The reason is that the
two superiors may have different reasons for decree-
ing the censure. However, it must be clearly under-
stood that there is question here not only of a double or
emphatic prohibition, but of a double or multiplied censure.
Now can. 2247, §1 forbids Ordinaries to put under censure
crimes which are already forbidden under the same
penalty by the Apostolic See. Consequently the censures
mentioned in the Code as reserved to the Apostolic See
cannot again be inflicted by inferior prelates. Note
that we here treat of censures latae sententiae, which need
no admonition.83 Hence the case can concern only a lay-
II C. 27, X, V, 39. Palraieri (/. e„ Vol. VII, n. 113. P-
32 De Censuris. disn. V, feci. 3. 55 ff-) «*y. is not to the point; and
n. 3 ff. what Ayrinhac (I. c, p. 93) says,
as What Suarez (L c, disp. V, appears like an evasion of the dif-
sect. 3, n. 13) and Ballerini- Acuity.
jle
I , Original from
UNIVERSITY OF WISCONSIN
CANON 2244 127
man or a clergyman or religious who has different
superiors. Thus if a layman has several bishops, because
he has more than one domicile, the different bishops may
censure him; a religious, too. may have different superiors,
— the provincial or general of his institute, and the local
Ordinary as far as pastoral duties are concerned.
One difficulty remains: What is meant by " dhcrsis
ccnsuris"? Does it mean specifically or numerically
different censures ? If specifically different, it would mean
excommunication or suspension or interdict. This
seems to be the meaning of our text, although the
Decretals,8* from which it is apparently taken, only
mention excommunication, which is said to have been
incurred severally, because inflicted by several prelates.
2. The next class of multiplied censures is that of c en-
surae ab homine. There is no difficulty as to the multi-
plication of these, because the various reasons constitute
as many titles, and each sentence presupposes a clear title
for a distinct pronunciamento on diverse matters judged
or commanded. Therefore, if several ordinances or
several sentences (which of course suppose diverse
objects) have been issued under censure, censures are
multiplied in proportion to the number of precepts and
sentences transgressed. Besides, if the sentence or pre-
cept is divisible, and hence composed of several parts, each
of which is emphasized by a special censure, the censures
are also multiplied. Here the intention of the superior
or judge must be clearly manifested, and besides, the
admonition must be made for each and every sentence or
■
precept and for every specific part thereof.85
a
c
o
34 C. 42, X. V, 39; but c. 37 ibid. excommunicated or tuspended by
refers to diverse crimes; thus one the ordinary; Eichmatm, p. 80.
may be interdicted by the Pope and 85 Suarex, /. c, disp. V, sect. 2, n.
13-
jle
/"** ^ -. %\s* Original fro ni
UNIVERSITY OF WISCONSIN
128 PENALTIES
a
In asserting a multiplication of censures, either Ictae
setitcnriae or ab hontinc, it must be remembered that all
the conditions enumerated above must concur, not only in
one, but in each and every censure ; else one censure may
be incurred, but not the other. The consequence of such
verified or not-verified multiplication is important in
reference to absolution.
s
{ RESERVATION OF CENSURES
Can. 2245
■
§1. Censurae aliae sunt reservatae, aliae non reser-
vatae.
§2. Censura ab homine est reservata ei qui censuram
inflixit aut sententiam tulit, eiusve Superiori com-
petently vel successor! aut delegato ; ex censuris vero
a iure reservatis aliae sunt reservatae Ordinario, aliae
Apostolicae Sedi.
§3- E reservatis Apostolicae Sedi aliae sunt reser-
vatae simpliciter, aliae special! tnodo, aliae specia-
Hssimo modo.
§4. Censura latae sententiae non est reservata, nisi
in lege vel praecepto id expresse dicatur ; et in dubio
sive iuris sive facti reservatio non urget.
Can. 2246
§ 1. Ne reservctur censura, nisi attenta peculiari
gravitate delictorurn et necessitate aptius providendi
disciplinae ecclesiasticae et medendi conscientiis fide-
lium.
§2, Reservatio strictam recipit interpretationem.
§3. Reservatio censurae impedientis receptionem
oogle
C* ^ v ,|rt Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
CANON 2245-2247 129
Sacramentorum importat rcscrvationem peccati cui
ccnsura adnexa est ; verum si quis a censura excusatur
vel ab cadem fuit absolutus, reservatio peccati penitus
omit*
Can. 2247
§1. Si censura Sedi Apostolicae reservata sit,
Ordinarius nequit aliam censuram sibi reservatam in
idem delictum ferre.
§3. Reservatio censurae in particulari territorio vim
suam extra illius territorii fines non exserit, etiamsi
censuratus ad absolutionem obtinendam e territorio
egrediatur; censura vero ab homine est ubique locorum
reservata ita ut censuratus nullibi absolvi sine debitis
facultatibus possit.
§3. Si confessarius, ignorans reservationem, poeni-
tentem a censura ac peccato absolvat, absolutio cen-
surae valet, dumrnodo ne sit censura ab homine aut
censura specialissimo modo Sedi Apostolicae reservata.
Elsewhere,86 in sketching the historical development of
reservation, we said that reservation to the " Apostolic
Lord " of the more atrocious crimes was a well-known
practice, especially since the twelfth century, and was
connected with pilgrimages to Rome as well as with the
decline of public penance. Can. 893, §2 calls the restriction
of the absolving power an avocatio, i. e., a calling of certain
cases before a higher tribunal. By earlier authors res-
ervation was defined as " restrictio iurisdictionis in odium
delinqucntis. " This definition gave way to another,
called the most common one by St. AJphonsus : " restrictio
iurisdictionis, ui delinquentes judicium prudcntiorum
so See Vol. IV, of our Commentary, pp. 311 ff.
jle
fcrt|,-, Original from
UNIVERSITY OF WISCONSIN
130 PENALTIES
subcant." 8T This latter definition may appeal to tender
souls, but historically and theologically speaking it has not ■
much foundation, if exclusively understood of the higher
and more prudent judgment to which the penitent has to
submit. For there is no doubt that the grievousness or
atrocity of the crime was the decisive element in reserv-
ing cases. To bring home to the delinquent the fact of
the heinousness of his crime was another object of
reservation. That by undertaking a pilgrimage to Rome
in those days this thought was vividly presented to the cul-
prit, goes without saying. Thus the Church did a truly
social work. It appears to us that the idea of the mere
prudent judgment of a case overlooks the penal character
of censures and their corrective or reformatory purpose.88
No doubt some prelates may have had misgivings or suf-
fered from lack of necessary knowledge in treating very
serious cases. But this was not true of all, nor could there
have been wanting suitable clergymen to advise the bish-
ops. The Code, in the definition quoted above, treats
reservation as restrictive of jurisdiction, which is quite
intelligible from a juridical point of view. However, our
view of reservation seems to receive weight from can.
2246, §1.
The common-law (a iure) censures reserved to the Or-
dinary are the following mentioned in can. 2319; 2326;
2339; 2341 (third clause) ; 2342, § 4; 2350; 2375; 2388,
§2. Can 2385 reserves the case of apostasy to the exempt
religious superior.
Censures reserved simpUciter to the Holy See are those
named in can. 2327, 2335; 2338, §1 ; 2338, §2^341 (sec-
a
c
o
ST Theol. Moralis, VI, n. 581. 107; Ballerim in the notes to Gury'i
3B Thus also Hollwcck, /. c, p. Theol. Moral., II, n. 571.
v ,|,, Original fro rn
UNIVERSITY OF WISCONSIN
>gle
■
pi
CANON 2245-2247
131
ond clause); 2342; 2346; 2351, §1; 2370; 2371; 2372;
2373; 2387 ; 2388, § 1 ; 2392, n. 1 ; 2405.
Can. 2245 distinguishes
1° between reserved and non-reserved censvrea
Reserved
1° ab homine
or
Reserved
2° a jure
fa) to the one who inflicted Ac
censure or sentence
b) to the former's superior,
successor or delegate.
a) to the Ordinary
(81 cases or canons)
b) to the Apostolic
See reserved
a) simpliciter (16)
b) spcciali modo (13)
c) speciallssimo
modo (4)
Specidi modo reserved to the Apostolic See are those
mentioned in can. 2341 ; 2318, § I ; 2322, n. I ; 2330 (and
"Vaeante Sede'' n. 81) ; 2332; 2333; 2334; 2341 (first
clause); 2343, §2, n. i; 2343, §3; 2345; 2360, §1;
2363.
Specialissimo modo reserved to the Apostolic See are
those mentioned in can. 2320; 2343, §1 ; 2367; 2369, §1.
§4 of can. 2245 states that censures latae sententiae are
reserved only if the reservation is expressly stated in the
law or precept which contains or threatens the reservation.
// there be a doubt concerning reservation, t)ie latter
need not be observed, i. e., any confessor may absolve
therefrom.30
The doubt may concern either the law (dubium iuris) or
so Neither is an absolution ad
cauletam there and then required,
nor is recourse necessary, or a
renewed absolution, if the doubt
has afterwards been cleared away;
Cappello, I. c, p. 24.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
132 PENALTIES
a fact (dubium facti). A solid doubt in regard to law
is, for instance, in a case of abortion, whether the law
comprises the mandataritts as well as the mandans
(see can. 2350). A dubium facti would be whether the
non-Catholic minister before whom the parties contracted
a marriage, acted as minister of his denomination or
merely as justice of the peace, *. e., as civil magistrate.
Note, however, that the doubt here mentioned does not
concern the censured person as much as the one who is to
absolve him from censure. Of course, if the parties did
not know of the censure, there can be no contumacy, and
consequently no censure. 40
Can. 2246, §1 enjoins moderation in the reservation of
censures, and mentions three reasons for which a cen-
sure may be reserved: (1) the specially serious or
grievous character of the crime, as stated in can. 897, and
inculcated by the Council of Trent;*1 (2) the necessity of
properly guarding ecclesiastical discipline, because it may
be that at sundry times and in diverse places reservation
may do more harm than good, as, for instance, in times of
persecution, in provinces far distant with but few
ministers/1 whilst certain tendencies and public manifes-
tations of specified vicious inclinations may demand more
radical means; (3) the necessity of offering a remedy to
the conscience of the faithful, whose character and
conduct also differ in different places, at various times,
and under various conditions.43
§2 of can. 2246 sets forth the well-known rule that the
reservation of censures must be strictly interpreted, be-
40 Hence it would be well to ask «2 S. C. P. F., June 6, 1817, n.
the parties whether they knew that 14 (Coll., n. 733^-
' such a marriage was forbidden 43 Benedict XIV, "A quo pri-
under censure. mum," June 14, 1757, I 8; Dc Syn.
41 Scsb. 14, c. 7, d* poenit. Dioec, V, 5; see this Commentary,
Vol. IV, p. 3*3 t
§le
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2245-2247 133
cause restrictions are not favors which may be stretched,
and because penalties should be interpreted in the milder
sense.** However, it is evident that when the wording of
a reserved censure is plain, it must be taken in its obvious
sense. Besides, a reserved censure may have a twofold
aspect : It may be favorable to a certain class of persons
and unfavorable to another class. Thus the privilegium
canonis (2343) is favorable to the clerical state and may
therefore be widely interpreted ; but as far as it concerns
those who attack clerics, it is unfavorable, and must there-
fore be restricted to " percussores " in the strict sense.45
Hence no extension from person to person, from case to
case, in other words, no analogous interpretation is per-
missible.
If the wording is ambiguous the interpretation of the
school, and consequently any probable opinion, may
be followed.40
§3 of can. 2246 settles a controversy concerning epis-
copal reserved censures. The text has two clauses, and
the first contains a condition not specially expressed.
1. Reservation of a censure may (a) prevent one from
receiving the sacraments, and such a reservation involves
reservation of the sin to which the censure is attached.
This is the case in excommunication; e.g., can. 2319, §1,
n. 1, says that parties contracting marriage before a non-
Catholic minister cannot licitly receive the sacraments
until the censure is removed by the Ordinary.
This reservation, therefore, concerns the sin itself.
(b) Reservation may not prevent one from receiving
the sacraments, and then the sin is not reserved, even
though the censure is. Consequently, a suspended cleric
44 Reg. Juris 15 and 49 in 6*. 46 Ballerini-Palmicri, Opus Theol.
4& Kciffenatue), in Reg. Iurts 15, Mora/*, V, n. 735, p. 397, ed. 2.
n. 9.
;Ic
I , Original from
UNIVERSITY OF WISCONSIN
■"■
134 PENALTIES
may be absolved from the sin that was the cause of a
reserved censure by any confessor, though the censure
remains and, therefore, if a subdeacon, he cannot be
promoted to deaconship.47
2. // one is excused from censure, or has been absolved
therefrom, reservation of the sin ceases entirely. Hence
ignorance *8 of the censure or lack of any of the conditions
that are required for incurring censures, render any
reservation null and void. Can. 2319, §1, n. 1, quoted
above, may be to the point. Ignorance of censures,
grave fear, lack of consent (for it happens that exterior
consent only is given in order to avoid scandal) may ex-
cuse from censure.
Now this §3 must certainly be applied to episcopal
cases, •. e., such as a bishop reserves to himself, in
virtue not of the law, but of his ordinary power. The
rule here is general, not restricted to papal cases.*9
Can. 2247, §1 forbids Ordinaries to attach another
censure reserved to themselves to a crime already
reserved to the Apostolic See. The reason for this very
practical law consists partly in the superiority of the
Apostolic See and partly in a desire to avoid a multi-
plication of censures.60 The words " nequit ferre"
(cannot decree) is more forcible than the text of the
Holy Office, which uses abstineant, although even the
"nequit" does not entail invalidity. " Aliam censuram"
means that no other reserved censure, at least of the same
kind, can be licitly added. Hence two excommunications,
for instance, on can. 2318, may not be pronounced against
47 See can. 3383. 49 Eallerini-Palmieri, /. c, main-
48 According to can. 2202, fi 2, tained this view.
■ce »lao can. aaao,. 60 See Reg. FurU 54 in 6°; S. O,
July 13, 1916 (A. Ap. S., Ill, 313).
jle
/■"* ^ v .J,., Original from
UNIVERSITY OF WISCONSIN
CANON 2245-2247 135
the authors and editors of certain forbidden books.61 A
non-reserved censure, even of the same kind, might be
permitted, but should rather be avoided, in order not to
increase the penalties. The general wording of the text
— "alia censttra" — appears to exclude even censures
of diverse kinds;' — excommunication, interdict or sus-
pension reserved to the Apostolic See may not be added
by the Ordinary.62 He may, however, add a vindictive
penalty.
Here a little digression may be permitted. It concerns,
strictly speaking, can. 898. but also bears upon can. 2247,
§ 1. We divide the text as follows :
1) Ordinaries shall abstain from reserving to them-
selves cases which are already reserved under censure to
the Holy See.
2) They shall, as a rule, abstain from reserving cases
reserved under censure by law. Hither belong the cases
reserved by law to the Ordinaries.
3) They shall, as a rule, abstain from reserving cases
reserved to no one, but reserved by law.
The first prohibition is unconditional; but the second
and third are conditioned by the adverb regularitcr.
Hence reservations made by and to the Apostolic See
should not be made episcopal reservations in any case.
But cases reserved by law to the Ordinaries, or re-
served to no one, have a phrase attached, vis.: "as a
a
Bl A difficulty arises trom can. EE. et RR., Nov. 26, 1603 (Buzarri,
*344r I ■■ "• 3. where a multiplica- /. c, p. 14) mentions only two ex-
tion of diverie censures decreed or communications,
inflicted by distinct superior! is 52 S. O., July 13. 1916 (/. c.)
admitted. For alia censura has a speaks only of reserved sins, not
wide meaning, embracing: direrse censures; as is evident from the
kinds as well as things of rubric: "Super casuum conscientiag
the same Icind (Barboin, Tratfatiu rejervationibus."
Vorii, Dictio 26, p. 650 ff.). S. C.
"■
§le
£ * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
136 PENALTIES
rule/' This can mean nothing else than that the bishops
should not make it a rule to reserve to themselves cases
already reserved to them by law, or reserved to no one
by law.
This is the grammatical-verbal interpretation of can.
898. Is there any solid reason to depart from it? We
cannot see any such reason. For if it is stated that it is
naturally repugnant that bishops should reserve to them-
selves cases from which they can absolve only by delegated
power, the answer is : Concerning the cases reserved to
the Apostolic See spccialissimo or speciali modo, there
might be some shadow of a reason. But as to cases
simply reserved to the Apostolic See, or reserved to the
bishops by law, or reserved to no one, there cannot be any
reason. For in these cases they absolve propria auc-
toritate, granted by law or general faculties. Besides, if
the Bishop wishes to impress the faithful with the serious-
ness of a crime, he may bind himself, or rather shift the
odium of the reservation to the Apostolic See. Lastly, it
matters little whether he absolves potcstatc propria or dele-
gated. It must, however, be observed that the Code strictly
enjoins Ordinaries not to make cases reserved to the Apos-
tolic See episcopal cases. This is deducible from the first
proposition. But it must be added that invalidity of such
reservations cannot be read into the text. The term
" abstineanit " cannot be stretched that far, nor can the
"nequit fcrre" of can. 2247, §1 be simply taken as in-
volving invalidity. For the n nequit " alone does not war-
rant such interpretation. If the legislator had intended
invalidity, he would have expressed it, as, for instance,
in can. 782, § 3 : " valid e uti nequeunt."
Legislator quod voluit, cxprcssit; quod noluit, tacuit.
§2 of can. 2247 determines the territorial extent and
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2245-2247 137
force of reservation and distinguishes between a reserved
censure a iure and one ab hontine. Of course it is under-
stood that this law (a iure) affects a diocese or province
only, not the Church at large, because the common law
binds everywhere. Thus diocesan statutes formerly for-
bade entering a saloon under suspension, to be incurred
ipso facto. This was a censure a iure particular^
a) The reservation of censures made for a particular
territory — by way of a territorial law — is restricted to the
limits of the respective territory, diocese or province and
has no binding force outside these boundaries, even
though the person censured would leave this territory in
order to be absolved, in other words, if he would leave his
ihome in fraudem legis.
b) If, however, an Ordinary or judge would inflict a
censure and reserve it to himself by virtue of a special
ordinance or condemnatory sentence (can. 2217, §1, n. 3),
such a reserved censure would bind the person thus cen-
sured everywhere, so that he could not be absolved by any
confessor unless the latter had obtained special faculties
for the purpose. This also concerns religious of exempt
institutes. A censure issued in virtue of the law
z
for a whole order or exempt congregation binds in the
whole of that order or congregation. If a religious
superior issues a special precept or a condemnatory
sentence (ab Iwminc), the person thus censured cannot be
absolved by another superior, unless the latter has obtained
special faculties from the respective superior or the
constitutions permit.
However, can. 519 must be considered here. Hence
a religious who has incurred a censure decreed as a iure
by his institute may be absolved by any approved con-
fessor; but if the censure is ab homine, i e.,
oogle
Original from
UNIVERSITY OF WISCONSIN
138 PENALTIES
incurred by a special precept or condemnatory sentence,
he cannot be absolved by any confessor, because can.
519 reads: "a ccnsuris in religione reservatis"
Neither can ignorance of the confessor be a pretext, for
§3 of can. 2247 precludes this assumption. It says indeed
that if a confessor, unaware of the reservation, absolves a
penitent from censure and guilt, the absolution from cen-
sure would be valid, but adds : the absolution, even in
case of ignorance, would be invalid if given for a cen-
sure ab homine or for a censure reserved specialissimo
inctlo to the Apostolic See. What kind of ignorance,
whether culpable or inculpable, is required, is not stated
nor does the Code distinguish. Similar to ignorance is
inadvertence, and therefore inadvertence also must be
admitted as an excuse and the absolution be regarded as
valid. "
The phrase " a eensura ac pcccato " should be compared
with can. 2246, § 3, where it is stated that absolution from
censure implies cessation of reservation of sin, pro-
vided the censure is not one which prevents the reception
of the Sacraments.
Take can. 894, the false accusation of an innocent priest.
This is a case reserved as a sin, or by the very nature of
the offence, and, besides, it is reserved to the Apostolic
See special* rnodo, under censure, in virtue of can. 2363.
The question arises whether the confessor, not knowing
of, or not adverting to, the reservation when he absolves
the penitent from " censure," also absolves him from the
sin, so that the penitent can receive the Sacraments. A
different answer is given by different authors. Under can.
894 we maintained that " neither ignorance nor doubt as to
53 Cfr. Coppello, /. c, p. as- See, 3229, | 3,1 *., full knowledge and
for instance, can. 2338, 9 1. which deliberation,
supposes a dotui, According to can.
ioi >gle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2245-2247 139
Q
the law of reservation excuses from this reservation." This
view is shared by others, e. g.t Ayrinhac {Penal Legisla-
tion, p. 310 ft".), but it is contradicted by Arregui (Staff**
mariutn ThcoL M oralis, 4th ed., no. 607), although his
argumentation did not convince us. However, since can.
209 admits a probable and positive doubt as to the " sup-
plet ecclesia!' it is but meet that we should here supple-
ment what we said under can. 894 (Vol. IV, p. 318), to
the effect that the absolution from sin in this case ( Can.
894) should be considered valid and licit.
The censure reserved modo special* to the Apostolic
See may be validly removed if the confessor does not
know or is not aware of it. If the sin is not reserved
ratione sui, for its own sake, but only as far as a censure
is attached to it, absolution from censure also involves
absolution from sin. For instance, if an apostate religious
who has incurred excommunication reserved to the
c
Ordinary (or religious superior, can. 2385), goes to a con-
fessor who does not know of that reservation and absolves
from both censure and sin, the penitent is absolved from
both. For the text simply says: ignorans reservor
tionem " without qualification, and thus appears to admit
ignorance of reservation of both censure and sin, and
therefore no distinction need be made as to censures pre-
venting and censures not preventing the reception of the
Sacraments. This should also be applied to episcopal
cases.
CI
ABSOLUTION FROM CENSURES
It was said elsewhere that the bishops were formerly
wont to send penitents guilty of enormous crimes to
Rome, to present themselves to the Sovereign Pontiff in
order to receive a penance or to ask for the benefit of a
.'le
£ " -. v J„ Original fro m
UNIVERSITY OF WISCONSIN
140 PENALTIES
change or absolution. Personal appearance before the
higher court was then required, as also absolution, i, e.t a
formal decision. For although the purpose of a cen-
sure is to amend the delinquent, yet, since the infliction of
such a penalty implies an act of jurisdiction, more gener-
ally in the external forum, it is a logical consequence that
the removal of such a juridical-moral tie requires an act of
jurisdiction. Hence no one, even though perfectly con-
trite and willing to reform, can promise himself freedom
from censures incurred, unless he has a warrant
from the ecclesiastical court. But since the salvation of
souls is the supreme law of the Church, it follows that the
external regime may be relaxed or modified in cases of
imperative need or greater spiritual progress for the bene-
fit of the cura animarum. Such, in brief, is the develop-
ment of the penitential discipline as related to censures.
Personal appearance is no longer required and the burden
of being subject to censures for a space of time that would
prove intolerable or dangerous to the spiritual welfare of
man has been relieved. At the same time the seriousness
of censures has been preserved and the heinousness of
the more atrocious crimes is still brought home to re-
cusants.
'■-.
NECESSITY OF AND CLAIM TO ABSOLUTION' — REVIVAL
OF CENSURES
Can. 2248
e
§1. Quaelibet c en sura, semel contracts, tollitur
tantum legitima absolutione.
§2. Absolutio denegari nequit cum primum de-
linquens a contumacia recesserit ad norrnani can. 2242,
§3 ; a censura autem absolvens, potest, si res f erat, pro
jle
I % Original fro ni
UNIVERSITY OF WISCONSIN
"■
CANON 2248 141
patrato delicto congruaxn vindicativam pocnam vel
poenitentiam infligere.
§3. Censura, per absolutionem sublata, non re-
viviscit, nisi in casu quo onus impositum sub poena
reincidentiae impletum non fuerit.
1. Necessity. That a censure once contracted can be
removed only by a lawful absolution, follows from the
definition given in can. 2236, §1. There is, then, no other
way of obtaining relief except by absolution, leaving the
rest to God and the disposition of the individual.5*
Absolution is legitima if imparted by competent authority.
Competent is the one who has inflicted the censure, or his
superior, delegate, or successor (can. 2245, §2).
The text furthermore says: " semel contracta." A
censure may be threatened by a special ordinance of the
superior, as it were conditionally: "If you violate this
ordinance, then etc. " Such precepts cease for particular
individuals with the cessation of the authority who issued
them, unless indeed they were formulated in a legitimate
document or given in the presence of two witnesses/5 If
the censure was not yet incurred when the superior who
issued the precept goes out of office, it ceases and there-
fore no special authority is needed for absolution.
2. Claim to Absolution. As staled, the purpose of cen-
sures is the amendment of the delinquent. Consequently,
if he recedes from contumacy or persistent disobedience,
he is entitled to absolution and it cannot be licitly with-
held from him.
Repentance alone, however, is not sufficient for purging
oneself of contumacy, but satisfaction and reparation of
scandal are required, according to can. 2242, §3. Hence
M Clr. c. i, X, V, 41. 60 See can. 24.
>Ic
£ * ^ , ,L» Original from
UNIVERSITY OF WISCONSIN
142 PENALTIES
a
the one who absolves from censure must judge whether
the acts performed by the penitent are sufficient.
Besides, he may also impose a vindictive penalty, or
penance, proportionate to the crime committed, slwuld
the case require this.
But what if the party who was offended by the
criminal act would refuse to make peace or consider the
satisfaction insufficient? This would not interfere with
the absolution, and the latter should not, therefore, be
withheld, if the delinquent has performed the works
prescribed."
The imposition of such a vindictive penance is left
to the one who absolves from censures, and he should
judge the case or situation objectively. If the one
absolved should fail to comply with his obligation of
assuming a vindictive penance, the absolution would
nevertheless be valid.
3. Revival of censures. A censure duly removed
never revives. This is the rule. However, the absolvens
may impose a work, vindictive penalty or penance, re-
traction, restitution, petition for absolution or any kind
of work under penalty of relapse into the censure if the
imposed penance is not complied with. This is called
absolutio sub poena reincidentiac. It is a conditional
absolution, which, while it hie et nunc completely removes
the censure and its effects, eventually depends on the
fulfillment of the condition by the person who was thus
absolved.
Hence, if the condition is complied with, the censure
MS. C. EE. et RR., Aug. 4, 1579 delinquent had done everything
(Bizurri, /. c, p. 225). One had prescribed in the rescript of absolu-
committed a violent act against a tion and therefore the bishop was
priest, who was not satisfied with told to absolve him. See also Reg.
the reparation made- But the Juris 4. ..t 5. in 6°.
§le
% ,|,, Original fro rn
UNIVERSITY OF WISCONSIN
CANON 2249 143
remains removed; but if it is not fulfilled, the censure
returns (reviinscit) . Whether a new guilt is incurred,
is a controverted question. However, there can be no
doubt that a new and culpable contumacy is required,
since the censure has been taken away completely, and
every censure requires contumacy. It may be said, there-
fore, that the old sentence revives with the same censure
if the contumacy is verified in the second instance.07 The
reason why the censure revives is the protection of
authority.58
The clause of reincidence must, of course, be expressly
stated in law, as is the case in can. 2252, 2254, §§1, 3, or
by the one who inflicts or absolves from censure.
ABSOLUTION FROM SEVERAL CENSURES
Can. 2249
§1. Si quis pluribus censuris detineatur, potest ab
una absolvi, ceteris minime absolutis.
§2. Petens absolutionern, debet casus omnes indicare,
secus absolutio valet tantum pro casu expresso; quod
si absolutio, quamvis particulars petitio facta sit,
fuerit generalis, valet quoque pro reticitis bona fide,
excepta censura specialissimo modo Sedi Apostolicae
reservata, non autem pro reticitis mala fide.
■
-
A censure may be incurred for various reasons and
crimes, and it may be inflicted by different superiors.
Although one mortal sin cannot be remitted without the
5T Cfr. Ballerini-Palmieri., Opus sohie times given to receive a favor
Thtol. Morale, VII, n. 289; eel. 2, or for a certain time, *nd produces
p. 146 ff. Different from this con- a limited effect; ib.. n. 391.
diti->ii.il absolution is the provisional S9 See c. 22, 6* V, n: "me sic
(abiolutio ad rautelamj which is illudant eensurae eeclesiasticat."
.'Ie
£ * ^ ^ -%\s% Original from
UNIVERSITY OF WISCONSIN
144 PENALTIES
other mortal sins weighing upon the soul, yet one censure*
may be removed without the others being taken away.
This is to be explained according to can. 2244, being
evident from the diverse effects which diverse censures
may produce, especially since censures are intended more
for the public welfare of Christian society than for the
court of conscience.
Hence it is, as §2 of can. 2249 rules, that one who has
incurred several censures, when asking for absolution,
must mention all the censures he has incurred; otherwise
the absolution will be good only for the censure ex-
pressed in the petition. The reason for this rule lies in
the above-mentioned fact of the possibility of several
censures being inflicted for various crimes and reasons
by various superiors. Therefore even the power, not
only the will, may be wanting in the one who absolves.
The second clause of this section reads : //, however,
absolution was imparted in general terms, even though
the censured person had asked to be absolved from one
particular censure, the absolution holds good for all cen-
sures which were concealed in good faith. But this
general absolution is not valid in case of censures reserved
specialissifno modo to the Apostolic See, nor is it valid
for censures concealed in bad faith.
Tin's law contains both a positive and a negative
assertion. It admits absolution for censures bona fide
reticitis, or as they are sometimes called, oblitis, i. e., cen-
sures which the penitent forgot to mention either in con-
fession or in his petition.
The first supposition, of course, is that the one who is
asked for absolution has the power, either ordinary or
delegated, of absolving from the censures in question.
The second supposition is that the penitent has bona fid$
*Ie
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2250 145
omitted to mention some censures incurred by him,
whether reserved or not. Here the whole question turns
about the will of the superior to absolve from censures
which were not mentioned. The Code says implicitly that
this will must be presumed if he uses a formula indicating
general absolution, as is the case in the formula "in
quantum possum et tu indiges. " Hence, if the tenor
or wording of the absolution was general, the absolution
frees the penitent from all censures, including those he
omitted to mention.89
The negative clause is restrictive and, first, excludes
from the absolution in general terms the four censures
most specially reserved to the Pope. Secondly, it denies
the benefit of absolution from censures that have been
concealed purposely or mala fide. One reason for this is
that it depends on the will of the superior, who is not
supposed to cooperate with sinful and deliberate
deception, as his power is not for destruction, but for
edification. Another reason is to safeguard the dignity
of censures.
Quite different from this question is that of an invalid
confession, in which the censures were either mentioned
or bona fide omitted. This question is not solved by our
text.M
ABSOLUTION FROM SIN AND CENSURE
Can. 2250
§1. Si agatur de censura quae non impedit Sacra-
mentorum receptionem, censuratus, rite dispositus et
SO Rallerini-Palmieri, /. c. Vol. V, from censures confessed in an tn-
n. 753. p. 414 ff. valid confession; Ballerini-Falmieri,
oo The more probable opinion ad- /. c. Vol. V, n. 760, p. 417.
mits the validity of the absolution
;Ic
I , Original fro ni
UNIVERSITY OF WISCONSIN
146 PENALTIES
a contumacia recedens, potest absolvi a peccatis, firma
censura.
a
§2. Si vero agatur de censura quae impedit Sacra-
mentorum receptionem, censuratus nequit absolvi a
peccatis, nisi prius a censura absolutus fuerit
§3. Absolutio censurae in foro sacramentali con-
tinetur in consueta forma absolutions peccatorum in
libris ritualibus praescripta ; in foro non sacramentali
quolibet modo dari potest, sed ad excommunicationis
absolutionem regulariter forniani adhiberi convenit in
eisdem libris traditam.
Since the administration of the Sacraments and their
efficacy depend solely on the .will and institution of Christ,
whereas absolution from censures depends on the will
of man, *. e., the superior or positive law, it follows that
absolution from sin and absolution from censures are
two different acts, even though they may be performed
by means of the same formula.
1. Hence one may be absolved from sin, and therefore
be in the state of grace, yet remain under censure. This is
admitted by the text in case of a censure which does not
pr&vent the censured from receiving the Sacraments,
provided the penitent is properly disposed for receiving
the Sacrament of Penance and gives up his contumacy,
according to can. 2242, §3. Thus one placed under sus-
pension, local interdict or interdict ab ingressu ccclesiae
(can. 2276) may validly and licitly be absolved from sin,
and yet remain suspended or interdicted. Of course, if
the censure entailed a prohibition of saying Mass, he
could not licitly perform this function.
2. If, on the other hand, there is question of a censure
which prevents the reception of the Sacraments, absolution
"-.
>Ic
£ - ^ , ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 2250 147
from censure must be imparted before absolution from sin
can licitly 0l be granted. This is the case with excommuni-
cation. The reason for this distinction lies in the
separable effects of the respective censures as well as in
the will of the lawgiver ; see also can. 2247, §3.
3. Formula of Absolution. The text distinguishes two
fora, the sacramental and the non-sacramcntal. The lat-
ter is again distinguished according to the kind of cen-
sures involved- Hence:
a) If absolution is given in the tribunal of penance
(in foro sacramcntali), the usual form contained in the
Roman Ritual 82 should be employed.
b) In the non-sacramental forum (in foro non-
sacramentali) , either for the court of conscience or for
the external forum, any formula may be used if no ex-
communication is implied; hence also the short formula
for the confessional is permitted.
c) If, however, absolution is to be given from ex-
communication, the formula prescribed in the Roman
Ritual (or Pontifical) should, as a rule, be employed."
Rcgularitcr, therefore, admits a departure from the
general rule, and in urgent cases the confessional or
even the abbreviated formula may be used.
There is also in the Ritual 8* a formula for absolving a
person who has been under excommunication, but has
given signs of repentance before dying. The purpose of
this absolution, as is evident from the same Ritual, con-
ox The lext docs not call for in- Patru et Filii et Spiritus Sancti."
validity; Cappcllo, /. c, p. 28. M Ibid., tit. Ill, c. 3 (cd. cit, p.
02 Tit. III. c. a (cd. Pustet, 1913. 68 ff.).
p. 66 f). " Mitertatur tui. . . . In- <H Tit. TTI, e. 4, where verbfrore
dnlgentiam. . , . Dominus not- corpus means to touch the body or
ter. . . . Pastto. . . ." In urgent coffin with the (penitential) rod,
cases: "Ego te absoivo ab omtii- which is a reminder of the virga
bus ctnsuris et peccatis in nomine of I Cor. IV, 21.
>Ie
% ,] , Original fro ni
UNIVERSITY OF WISCONSIN
-'
148 PENALTIES
sists in permitting ecclesiastical burial. Absolution from
censures may be imparted validly in any form, written or
oral, nor is it required that the party be personally
present; even absent and unwilling persons may be
absolved.00
ABSOLUTION IN THE EXTERNAL AND INTERNA", FORUM
Can. 2251
Si absolutio censurae detur in foro externo,
uirumq ue forum afficit : si in interno, absolu tus, remoto
scandalo, potest uti talem se habere etiam in actibus
fori extern! ; sed, nisi concessio absolution's probetur
aut saltern legitime praesumatur in foro externo, cen-
sura potest a Superioribus fori externi, quibus reus
parere debet, urgeri, donee absolutio in eodem foro
habita fuerit
The formula of absolution, although distinct as to the
two fora (sacramental and non-sacramental), does not
touch the effects of absolution in either. But the case
is different when we say that absolution was given in the
external forum, and when we say it was imparted in the
internal forum, cither in the Sacrament of Fenance or
outside this Sacrament, but for the court of conscience.
The reason for this distinction lies in the effects and the
purpose of censures, which concern the public welfare of
the Church, the avenging of crime, and the reparation of
scandal or damage. This can more efficaciously be ob-
tained and urged if the absolution given in foro interno
is not admitted as sufficient in the external forum,65 But
CS Capello, p. ag. Laymann, P. 6 (r d Venet., 1690, Vol. I»
Theol. Moral., I, tract, 5, P. 1, c. j. p. 91).
^
/ * ^ ^ ,L» Original fro m
UNIVERSITY OF WISCONSIN
CANON 2251 149
our text is very cautiously worded and avoids any insin-
uation as to the validity of an absolution given in
the internal forum which would properly require an
absolution for the external forum. Take, for instance,
can. 2319, §1, n. 1. A marriage contracted before a non-
Catholic minister is no doubt a notorious or public crime,
entailing excommunication reserved to the Ordinary.
Therefore the pastor or curate who has received from the
Ordinary the faculty to absolve the guilty party, should
give the absolution in foro externo in order to make
sure of its validity.66
The text says :
i.° Absolution given in foro externo affects both
fora, the internal as well as the external ; concerning this
there never was a doubt."
2° If the absolution was given in foro interno, the
person thus absolved may conduct himself as one ab-
solved or freed from censure also concerning acts of the
external forum, provided the scandal has been removed.
Returning to our case (can. 2319), a priest endowed
with the proper faculties may impart absolution in foro
interno, i. e., either in the Sacrament of Penance or out-
side of it. If the couple is unknown in the place of
absolution, there will be no scandal ; but there might be
if they were well known and would stay away from the
Sacraments. Consequently, the parties may go to the
Sacraments and perform other legal ecclesiastical acts,
even if they were absolved only in foro interno, or, as we
say, privately.
3.0 However, continues the text, */ absolution was given
60 And since it is an excommunica- 67 S. Pocnit.. April 27. 1886, ad 4
lion, the formula propria should (Colt. P. F., n, 1655).
be used according to Ril. Rom,,
tit. Ill, c. 3.
jle
Original fro rn
UNIVERSITY OF WISCONSIN
150 PENALTIES
privately only, tiie superiors of the external forum,
before whom the censured person is bound to appear,
may insist upon the censure until absolution is given in
the external forum, unless evidence is furnished tliat ab-
solution was granted, or may be lawfully presumed, for
the external forum.
Notice (a) that the text does not imply invalidity 68 of
the absolution given privately, provided of course the
power or faculty was not wanting; (b) that the supe-
rior enjoying jurisdiction in foro externo is not obliged
to urge the censure unconditionally, but only under the
condition (c) that evidence is wanting or presumption.
Evidence may be had from the certificate of absolution
or through an official document issued by the one who
absolved in foro interno. Presumption or circumstan-
tial evidence would be the giving of satisfaction, also
witnesses who had seen the party go to confession or
heard of it0Q
Urgere censuram means to demand that the parties
conduct themselves as censured, and therefore abstain
from performing any and all acts forbidden by the cen-
sure. The Ordinary is entitled to urge the censure in
the case of can. 2319 and of can. 2314, §2. In
cases of occult censures, if neither scandal nor promul-
gation or denunciation are involved, absolution given
in the internal forum would certainly be sufficient.70
Regulars cannot absolve penitents from censures for
the external forum, and those whom they do absolve, if
denounced by the Ordinaries, must conduct themselves
-
-
os Missionaries could absolve apos- teriori" ; S. O., Jan. 3, 1640: Sept
lates and heretics only in foro a8, 1673 {Coll. P. F., en. 98. 204).
conscientiae, and those thus absolved 69 Rnllcrini-Palmicri. I. c, VII. n.
had to present themselves before 320, p. 162.
the Holy Office or the Ordinary, ~o Laymann, /. c; sec can. 2237,
"*i velint esse tttti in foro tx- 9 a.
§le
£ - ^ , -J,-, Original fro nri
UNIVERSITY OF WISCONSIN
a
CANON 2252 151
as censured." The reason is substantially the same:
the bishop is entitled to have a guarantee of absolution
and satisfaction, especially if the censure was publicly
declared or is likely to cause a juridical investigation;72 —
in other words, if it should become notorious.
THOSE EMPOWERED TO ABSOLVE FROM CENSURES
The following three canons point out three distinct
classes of cases. The first treats of the danger in which
any priest may absolve; the second outlines the regular
administration under normal conditions, and the last
provides for urgent and special situations. They show
how the Church adapts her laws to the exigencies of the
times.
I. ABSOLUTION IN DANGER OF DEATH
Can. 2252
Qui in periculo mortis constitute a sacerdote,
specialis facultatis expert©, receperunt absolutionem ab
aliqua censura ab nomine vel a censura specialissimo
modo Sedi Apostolicae reservata, tenentur, postquam
convaluerint, obligatione recurrendi, sub poena re-
incidentiae, ad ilium qui censuram tulit, si agatur de
censura ab homine; ad S. Poenittntiariam vel ad
Episcopum aliumve facilitate praeditum, ad normam
can. 2254, §i, si de censura a iure; eorumque mandatis
parendi.
The Decretals Tl demanded, as a rule, personal
71 Clement X. "Superna." June *3 Cfr. cc. 3. 26, 58, X, V, jp.
21, 1670, I 7- C. 22, 6\ V, 11.
ras. C. P. F., Jan. 14. *?*«
(Coll., n. 305).
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
152 PENALTIES
appearance before the " Apostolic Lord " to receive his
order in case of a reserved censure. At the same time
they admitted exceptions in the cases of women, old or
sickly persons, and especially in cases where there was
danger of death. But in this latter instance the obligation
of a personal visit to Rome remained, as soon as the
patient recovered sufficiently, under pain of falling back
into censure. 7* The Friars Preachers and Friars Minor
had obtained the faculty to absolve from censures in case
of impending death, but under the same conditions. Every
reservation ceased after the Council of Trent whose
ruling has passed into the Code/** Hence any validly
ordained priest, no matter what his juridical or moral
standing, may absolve in danger of death from any sin
or censure.
Our text also supposes that a special faculty required
for absolving from reserved censures is wanting in the
priest who otherwise may enjoy ordinary jurisdiction
in foro poenitentiae, and says :
1°. When in danger of death™ one may be absolved by
any priest, even though the priest has no jurisdiction or
faculties to absolve from the censure in question ; but
2°. After recovery, •. e., after being fully restored to
health, the penitent is bound to have recourse to the proper
authority, under penalty of falling back into the censure
3°. If absolution has been given from a censure reserved
ab homine, or modo spccialissimo reserved to the Apostolic
74 C I. Extraif. Comm., V, 7 >8S9. ad i (Colt. P. F., n. u8i).
(Bened. XI, A. D. 1304). 74> Sew. A3 a rule, the danger of death
4, c. 7, de Poenit., can. 882. may be suppoied when the penitent
T6 When the Archbishop of Cin- is in such a state that he has an
cinnati asked when the penitents equal chance for life or death, be
could be said to be in danger or the danger internal, (sickness,
M articuto (at the point) of death wounds, birth, old age) or external
the Holy Office referred him to (vrar, perilous journey); Cappcllo,
approved authors; S. O., Sept. 13, /. c, p. 33.
>ogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2252 153
b>
See, recourse must be had to the one who inflicted
the censure, if it was a censure ab honune. The recourse
must be had to the S. Poenitentiaria, or to the bishop, or
to another endowed with the faculty of absolving, if
the censure was one a iure, i. <?., specialissimo tnodo
reserved to the Holy See.
40. This recourse implies that the penitent abide by the
order of the respective superiors. The term "mandaiis
parendi " implies willingness and promptness to carry out
the injunctions given, either orally or in writing.
Generally there is attached to the rescript of absolution
the clause : " inlunctis de iure iniungendis. " This
signifies :
(a) that the censured party must give satisfaction to
those who were hurt or damaged by the criminal act for
which he or she was censured;
(b) that scandal be repaired if any was given;
(c) that other imposed works, such as sacramental
confession or penance, be accepted.7*
Note that only the four cases reserved specialissimo
tnodo (i. e., a iure) require recourse under penalty of
reincidence. All other censures reserved a iure to
the Apostolic See, either simplici or speciali modo, as well
as the cases reserved by law to the Ordinary, do not call
for such recourse.
The text alludes to the bishop or other priest, aliunuue
facilitate praeditum. Ordinaries, therefore, also need
faculties to receive such a recourse and to impart
CI
absolution in the four cases mentioned.77
TeCappcllo, (. c, p. 80. The term 1891; March 30, 189a {Coll P. F„
"standi mandatis eeelesioe" has nn. 1764, 1788). This is expressed
been explained as the obligation of in the text.
having recourse, either personally 77 The faculties issued May 6,
or through the confessor, to the 1019. for the nuncios, internuncios,
Roman Pontiff; S. O., Aug. 19, and Apostolic delegates do not
jle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
-'
■"■
154 PENALTIES
In can. 2254, §1, the rule is laid down that recourse
should be made by letter or through the confessor.
It also indicates the time within which recourse must
be made, i. e., a month from recovery.
2. ABSOLUTION WHEN THERE IS NO DANGER OF DEATH
Can. 2253
Extra mortis periculurn possunt absolvere :
i.° A censura non reservata, in foro sacramentali
quilibet conf essarius ; extra forum sacramentale qui-
cunque iur isd ictionem in foro externo habeat in reum ;
2.0 A censura ab homine, ille, cui censura reservata
est ad norman can. 2245, §2; ipse autem potest
absolutionem concedere, etiamsi reus alio domiciliurn
vel quasi -domiciliurn transtulerit ;
3." A censura a jure reservata, ille qui ccnsuram
constituit vel cui reservata est, eorumque successores
aut competentes Superiores aut delegati. Quare a
censura reservata Episcopo vel Ordinario, quilibet
Ordinarius absolvere potest suos subditos, loci vero
Ordinarius etiam peregrinos; a reservata Sedi Aposto-
licae, haec aliive qui absolvendi potestatem ab ea
impetraverint sive generalem, si censura simpliciter
reservata sit, sive specialem, si reservata special!
modo, sive denique specialissimam, si reservata specia-
lissimo modo, salvo praescripto can. 2254.
This canon regulates the ordinary administration, under
normal conditions, of the penitential jurisdiction in the
internal and external forum with regard to censures. It
contain this power; nor do those issued in 1920 to the Vicar- Apostolic
of North Carolina.
gle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2253 155
is the rule, whenever danger of death or urgent cases do
not justify a departure.
1. As to non-reserved censures. From these every duly
approved confessor may validly and licitly absolve in
the tribunal of penance for the internal as well as the ex-
ternal forum; but for the latter, absolution holds good
only under the condition laid down in can. 2251. If ab-
solution is to be given outside the confessional, it must be
imparted by the one who has jurisdiction over the delin-
quent in foro externa. Therefore, a pastor or curate
cannot absolve from non-reserved censures outside the
confessional, unless he has received delegated power to
do so from his bishop.
This absolution given in foro externo also affects the
court of conscience (can. 2251).
2. As to reserved censures ab honune. From these
only he who has inflicted the censure, or his competent
superior, or his successor or delegate, can absolve, as
stated under can. 2245, §5. However, he who is entitled
to impart absolution may grant it also in a strange
territory, i. e., even though the delinquent has set up his
domicile or quasi-domicile elsewhere. This is accord-
ing to the forum delicti, as stated in can. 1566.
3. To absolve from censures reserved a iure the
competency is first determined according to the genera!
principle : " he can loose who can bind, " L e., he who set
up the law enacting the censures can absolve from it.TB
But the supreme lawgiver reserves certain censures
to the Ordinaries and to exempt religious superiors.
Therefore two points are to be observed: the lawgiver
as far as he has enacted the censure as law, and the
reservation. The general principle is that the successors
of the lawgiver or those to whom the censures are re-
T8 See cc. 39, 39. X, V, 3g.
"-.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
r,.,' ;.,... ,. ■■»
156 PENALTIES
served, the competent superiors of these, and, finally, the
delegates of either, may absolve.7* These authorities are
specially mentioned.
a) An Ordinary may absolve his subjects everywhere
from censures reserved Episcopo or Ordinario; the local
Ordinary may absolve also peregrini.
By Ordinaries must be understood
l.° All bishops, also titular bishops, who enjoy the
privilege of choosing for themselves any confessor, and
also their dependents, who by this very choice obtain
jurisdiction to absolve from censures reserved to the
Ordinary.'
2.0 Abbots or prelates nullius who enjoy the same
power, with the exception of the privilege just mentioned
(can. 349), unless they are bishops.
3.0 Vicars-general, 7/icars-capitular (administrators),
vicars and prefects Apostolic.
4.0 The major superiors of exempt clerical religious
orders may either personally or through a delegate absolve
their own subjects81 from every censure iure reserved to
the Ordinary.
The Ordinaries mentioned under n. 1 to 4, with the
sole exception of titular bishops, may also absolve their
subjects from occult censures reserved simplici modo to
trie Holy See.
Finally Cardinals enjoy the privilege of absolving from
any censure, except the four specialissimo modo reserved
to the Pope."
70 Delegatus is referred to both communicable to others, except aa
-superiors and successors and far as the canon permits.
implicitly to the delegate of the M A prelate cannot absolve one
lawgiver or rcservans by law. who is not his subject by reason
80 See can. 340, I 1, n. 1 aa of profession or obedience, unless
compared with can. 239, I 1, n. a; the approved Constitutions give
but this is a personal privilege, not him that right.
82 Can. 339, § 1, d. 1 f.
.'Ic
f* ^ v J„ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2254 157
It goes without saying that the Sovereign Pontiff may,
either himself or through his delegates, absolve from any
censure reserved either a iure or ab homine.
b) Only the Apostolic See itself can de iure absolve
from censures reserved to the Apostolic See; every in-
ferior needs faculties, which are of a threefold kind :
l-° A special faculty is required for absolving from
censures which are reserved to the Apostolic See simplici
modo.
2.0 A special faculty is required to absolve from cen-
sures reserved to the Apostolic See modo speciali."
3.0 A most special faculty is needed to absolve from the
four cases reserved to the Apostolic See modo
speciolissimc.
3. ABSOLUTION IN MORE URGENT CASES
Can. 2254
§1. In casibus urgentioribus, si nempe censurae latae
sentcntiae exterius servari nequeant sine periculo
gravis scandali vel infamiae, aut si durum sit
poenitenti in statu gravis peccati permanere per
tempus necessarium ut Superior competens provideat,
tunc quilibet confessarius in foro sacramentali ab
eisdem, quoquo modo reservatis, absolvere potest,
iniuncto onere recurrendi, sub" poena reincidentiae,
intra mensem saltern per epistolam et per confes-
sarium, si id fieri possit sine gravi incommodo, reticito
nomine, ad S. Poenitentiariam vel ad Episcopum
88 An Apostolic Delegate has the SedU," 1869, could no longer — nor
general and special, but not the can they now — absolve from cases
most special, facility: see Faculties, simpliriter reserved to the Apos-
May 19, 1919, n. 4; Prelates regular, tolic See; S. Poenit, Dec. 5, 1873
after the Constitution "Apostolicar {Coll. P. F., n. 1409).
*Ie
% ,1,., Original from
UNIVERSITY OF WISCONSIN
158 PENALTIES
aliumve Superiorem pracditum facultate et standi eius
mandatis.
a
§2. Nihil impedit quominus poenitens, etiam post
acceptam, ut supra, absolutionem, facto quoque recursu
ad Supcriorem, alium adeat confessarium facultate
praeditum, ab eoque, repetita confessione saltern
delicti cum censura, consequatur absolutionem; qua
obtenta, mandata ab eodem accipiat, quin teneatur
postea stare aliis mandatis ex parte Superioris
supervenientibus.
§3. Quod si in casu aliquo extraordinario hie re-
cursus sit moraliter impossibilis, tunc ipsemet confes-
sarius, excepto casu quo agatur de absolutions cen-
surac dc qua in can. 2367, potest absolutionem conce-
dere sine onere de quo supra, iniunctis tamen de iure
iniungendis, et imposita congrua poenitentia et
satisfactions pro censura, ita ut poenitens, nisi intra
congruum tempus a confessario praefiniendum
poenitentiam egerit ac satisfactionem dederit, recidat
in censuram.
Although the Decretals allude to legitimate impediments
preventing a personal appearance in Rome, the case, as
it is now formulated, is rather modern.8* Besides the
aforesaid Decretals demanded a sworn guarantee (debita
cautio sub iuramento) before one could be absolved by a
bishop or a simple priest. This more especially when the
privilegium canonis had been violated.
The first section of can. 2254 states and circumscribes
the case, §2 modifies it, and §3 mitigates the requirement
of recourse.
1. In more urgent cases any duly approved confessor
a* Sec cc. 29. 58, X, V. 39; c (Coll. P. F., n. 1658): "In easibiu
22, 6°, V, 11; S. O., June 23, iSBfi, vere urgentioribus, in quibus. . . ."
gle
v %\^ Original from
UNIVERSITY OF WISCONSIN
CANON 2254 159
may validly and licitly absolve from each and every cen-
sure, no matter how and to whom it is reserved, provided
it is a censure latae sententiae.
Which cases are more urgent, is then stated as
follows :
a) When these censures cannot be exteriorly observed
without serious danger of scandal or loss of reputation,
which may be the case if a priest would be obliged to ex-
ercise the sacred ministry, or if a layman in good standing
would have to omit his Easter Communion; to judge
whether this case is verified belongs to the confessor.61
b) Or if it would be difficult for the penitent to re'
main in the state of grievous sin for the length of time
required to obtain the necessary faculty from tlxe
competent superior.** Whether and under what circum-
stances it would be difficult for a penitent to remain in
this state, must be left to the judgment of the confessor,
who certainly may apply the rule: " Poenitenti crcdendum
est" Therefore, if the penitent should say, one day
would be hard, we think our canon could be applied,
though some authors hold that at least a week, or three
or four days, are required. &7
The obligation of the confessor under such circum-
stances is:
a) That he absolve 8B in the tribunal of penance; hence
he cannot absolve outside the confessional, because the
for\im sacramentale is not identical with the internal
forum :
85 S. O., June 23. 1886, id a* U The absolution is a direct one,
(Co//., n. 1658). «'. e., one which remits the sin by
s« This reason is an enlargement virtue of the judicial (penitential)
of the former; S. 0., June 16, 1897 sentence given for that sin (under
{Coll., n. 1971)- censure); S. O., Aug. 19, 1891, ad
87 See Cappello. /. c, p. 34. 3; March 30, 1892, ail 6 tCoJ. P.
Frequent Communion should now- F., nn. 1764, 1788); Arrcgui, /. c,
a- days also be reckoned with. p. 394.
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
160 PENALTIES
b) That he impose on the penitent the strict and
grievous obligation of having recourse to the S.
Poenitentiaria, or to a bishop or other superior endowed
with the necessary faculties to absolve him, and to abide
by their orders;
c) That this recourse be imposed under penalty of
reincidence (sub poena reincidentiac) ,8B i.e., of falling
back into specifically the same censure from which he is
now absolved ;
d) To remind the penitent that recourse must be had
within a month, to be reckoned probably from the day of
absolution, or at least from the day when he became con-
scious of the obligation ;
c) To tell the penitent that the recourse may be made
by letter, in which case the proper names are to be entirely
suppressed and fictitious names used, or personally, be-
cause a personal visit to Rome is not excluded ;
f) For the confessor to remember that he, too, is
bound to have recourse to the competent authority, unless
a serious obstacle prevents him.
Here we may add two decisions of the S. Poeniten-
tiaria™
i.° That the recourse cannot be spared the penitent,
even if the post-office authorities or civil power should
open the letter, because fictitious names are given.
2° If the penitent is a transient, whom the confessor
may not meet again, it suffices that a serious promise be
demanded of him to have recourse to the competent
80 This reincidence concerns sen- bo S. Poenit., Nov. 7, 1888 {Coll.
surea reserved to the Apostolic P. F., n. 1695, ad. 5 ct 6). The
See modo simplid, and consequently month is, of course, to be under-
alio those reserved sprriali and stood as the minimum, or, as v/e
sfiecialusimo modo; S. 0., June 17, say, ad urgendatn, not ad finiendom,
i8gi, ad 2 (Coll., n. 1756). cbligationem.
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2254 161
St
authorities. In this case, we incline to believe, the
burden of writing should not be urged against the con-
fessor.
§2 says the penitent is at liberty to approach another
confessor endowed with the necessary faculties and to
obtain absolution from him. This right is granted even
in case the penitent has already been absolved (in urgent
necessity) and has had recourse to the competent
authority. But the penitent has again to confess
the censured sin to this other confessor, in order that the
latter may know the nature of the case and impose the
necessary injunctions. After that absolution ihe penitent
has merely to carry out the orders given by the second con-
fessor and is not bound to abide by the injunctions of the
superior to whom recourse was had, which may reach him
later.
§3 modifies the requirement of recourse. If in
some extraordinary case, it says, recourse should be
morally impossible, the confessor may grant absolution
without imposing the obligation of recourse. However,
in that case another obligation must be imposed, ins.t
iniunctis de iure iniungendis, and a proportionate penance
and satisfaction for the censure. This obligation is so
grave that if the penitent would not comply with the
penance imposed and with the demand of satisfaction
within the time fixed by the confessor, he would fall
back into the same censure.
Recourse would be morally impossible, as the Holy
Office has declared, if neither the penitent nor the con-
■
fessor could write, and it would be hard for the penitent
to approach another confessor; or if the penitent himself
was unable to write, though the confessor was, but the
ogle
£ * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
162 PENALTIES
latter would not be likely to meet the penitent again, in
order to give him the answer.91
From this favor of omitting the recourse is excluded
the case of absolutio complicis (can. 2367) ; and poverty
or inconvenience to seek another confessor ar.e not ad-
-
mitted as an excuse.02
■
81 S. O., Nov. 9, 1898; Sept 5. ■= S. O., June 7, 1899 {Coll., a.
1900 (Coll , nn. 2023, 2095). 2052).
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
Q
CHAPTER II
CENSURES IN PARTICULAR
Can. 2255
-J
§1. Censurae sunt :
x.° Excommunicatio ;
2.0 Interdictunr;
3.0 Suspensio.
§2. Excommunicatio amcere potest tan turn pcrsonas
physicas, ct icleo, si quando fcratur in corpus morale,
intclligitur singulos amcere qui in delictum con-
currerint; interdictum et suspensio, etiam communi-
tatem, ut personam moralem; excommunicatio et
interdictum, etiam laicos; suspensio, clericos tantum;
interdictum, etiam locum ; excommunicatio est semper
censura ; interdictum et suspensio possunt esse vel cen-
surae vel poenae vindicativae, sed in dubio
praesumuntur censurae.
Can. 2256
In canonibus qui sequuntur:
i.° Nomine divinorum omciorum intdliguntur
functiones potestatis ordinis, quae de instituto Christi
vel Ecclesiae ad divinum cultum ordinantur et a solis
clericis fieri queunt ;
a.0 Nomine autem actuum tegitimorum ecclesia-
sticorum significantur: munus administratoris gerere
bonorum ecclesiasticorum ; partes agere iudicis,
163
G 1 Originalfiom
UOglL UNIVERSITY OF WISCONSIN
-
■
pi
164 PENALTIES
auditoris et relatoris, defensoris vinculi, promotoris
iustitiae et fidei, notarii ct cancellarii, cursoris et
apparitoris, advocati et procuratoris in causis ecclesi-
asticis ; munus patrini agere in sacramentis baptismi et
confirmat ionis ; suffragium ferre in electionibus ecclesi-
asticis ; ius patronatus exercere.
These two canons enumerate the censures, then state on
whom and how they may be inflicted, and, lastly, set forth
the significance of certain terms connected with the effects
of censures.
I. There are three kinds of censures;
1. Excommunication,
2. Interdict,
3. Suspension.
This enumeration is complete and has never varied
since the time of the Decretals.1 Consequently, irregu-
larity arising from crime (ex delicto) is no censure, al-
though some have asserted it, as Benedict XIV says.2
II. §2 of can. 2255 determines the subject on whom
censures may be inflicted, distinguishing between physi-
cal and moral or artificial persons, laymen and clergy-
men, persons and places.
a) Excommunication can affect only single itrdividiials.
Therefore, if this censure is inflicted on a corporation, the
meaning can only be that the members of that corporation,
as far as they are guilty of, or partakers in, the censured
crime, are intended.
b) The interdict and suspension may be inflicted also
on a community as such, i. e., a corporation. The
difference between excommunication and the interdict,
"i See c. ro, X, V, 40; c. I, 6", z"Inter Proeteritos," Dec. 3.
V, 11. 1749. 5 48.
jle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2255-2256 165
as affecting or not affecting a corporation, lies in the
respective effects. The effects of excommunication con-
cern personal spiritual benefits and favors, i. e., such as
touch the soul and salvation of the individual, whereas
the privation entailed by suspension or interdict is not
of an individual spiritual character.8 Hence excom-
munication can be inflicted only on real delinquents,
although they may otherwise be punished as members of
the corporation ; for it is not necessary that each and
every person be nominally censured (can. 2242, §1).
If some authors go further and say that a corporation is
not capable of being excommunicated because it forms
a fictitious, not a real body, and has no soul (or rather
will) in common,4 they shoot beyond the mark. For
a corporation has a collective will, and is capable of
rights and obligations quite different from the rights
and obligations inherent in its members as private
citizens or non-members.0 We need not stretch the
imagination to comprehend a corporate will. It is the
will of the community as expressed by its statutes and
asserted by its lawful representatives. The fictio iuris is
therefore quite superfluous; for since corporations are
endowed with rights and obligations of their own, it is
but logical that they should also be liable to punishment.
This idea is not precisely embodied in the Roman,
English or American law of old, but it prevails in modern
times/ On the other hand, if a collective will were denied
» Cfr. Suaxer, De Cens., disp. 18, r, Wcrnz, luj Dccret., VI, p. 34,
sect. 2, n. 3; Laymann, Theol. n. 18.
Moral., I. I, tr. V, p. II, c. 1, n. 6. 6 Kenny-Webb, Outlines cf Crim-
4 Thus Suarez, /. c, c. 5. 6". V*. inal Lavr. 1907. p. S7 ff.: of course.
11 insinuates the real reason: the criminal liability of a cornora-
"volcntes animorum pcriculnm vi- tton has its limits; for a corporation
tare, quod erindc sequi posset, cum cannot be hanged, though it can bo
nonnunquam contingent innoxios fined.
--.
huiuimodi xententia irretire.
it
jle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
166 PENALTIES
fit
to a corporation, it is hardly conceivable that it could be
interdicted or suspended. Hence we said that those who
use this argument shoot beyond the mark. " Conse-
quently, the real and practical difference between ex-
communication not affecting; a community as such on the
one side, and interdict and suspension as affecting a
community as such on the other hand, must be sought
in the effects, •". c, in the personal privation of
intrinsically spiritual goods which properly concern the
salvation of the soul.
c) Excommunication and interdict may be inflicted
also on the laity, whilst suspension is for the clergy only.
d) An interdict may be laid on a place, not, of course,
by reason of guilt or punishment in the proper sense, but
as the container of culpable subjects or connected with
an indictable crime.
e) Excommunication is always a censure, whereas
interdict and suspension may be either censures or vin-
dictive penalties; if it is doubtful whether they were
inflicted as a censure or as a vindictive penalty, they are
presumed to be censures. Thus an interdict or sus-
pension in perpctuum or ad tempus praefnitum, or ad
beneplacitum superioris (can. 2291, n. I f. ; 2298, n. 2)
is a vindictive penalty.
In order to remove every doubt, the censures should
be named as to persons and species, and hence terms
should be used which clearly indicate the nature of the
penalty according to the common usage of the Church
and the schools. This is true chiefly of a censure ferendae
scntentiae, or rather, let us say, of a censure ab homine.
For a penalty a iure or latae sententiae is already clearly
marked out and only requires the verification of the
criminal act. Thus a censure latae scntentiae does not
>ogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2255-2256 167
demand a canonical admonition, though a declaratory
sentence may be necessary in certain circumstances (can.
2232). The reason for this wording lies in the necessity
of an external and sufficient manifestation of the
superior's will.7
From this it is also apparent why the legislator
presumes censures rather than vindictive penalties. For
although censures are grievous penalties, yet absolution
must be granted as soon as contumacy ceases (can. 2248,
§2), whereas vindictive penalties may. but must not, be
removed by dispensation or relaxation. Besides, vin-
dictive penalties may be meted out for past crimes, but
censures are inflicted for delinquencies which are of a
prospective and enduring nature.8 The presumption here
mentioned is that called ittris, but not iuris et de iure, and
hence admits direct as well as indirect evidence (can.
1825 f.).
III. Can. 2256 explains the terms used to designate
certain effects or consequences of penalties which occur
in the following canons.
a) By divine offices* are to be understood those func-
tions of power of order (potestatis ordinis) which have
been established by divine or ecclesiastical authority and
are performed only by the clergy. Such are the celebra-
tion of Holy Mass, the administration of the Sacraments
and sacramentals (blessings, sepulture, public service,
preaching, choir service, processions) etc.
b) Legal ecclesiastical acts are those of official
administrators of ecclesiastical property; those of the
following persons employed in the ecclesiastical court :
judge, auditor, relator, defensor vincrdi (for marriage
and ordination), fiscal promotor and promotor of faith
■"■
t Wenu, /. c, VI, n. 165 ff., p. a Ujmaiin, t. c, n. 3.
169 1 » Cfr. can. 3359, fi 1 ; private
§le
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
168 PENALTIES
(for beatification and canonization), courier and beadle,
lawyer and proxy; those of sponsors at Baptism and
Confirmation; — the (active) voice10 or right of voting
at ecclesiastical elections, including those held by
monastic chapters and chapters of religious communities
and acts of actual (not habitual) exercise of the ius-
patronatus or advowson.
Art. I
EXCOMMUNICATION
In general terms excommunication means the act of
excluding or the state of being excluded from the com-
munion of the faithful ; practically speaking, the Church
is the society of the faithful.
Being therefore, an autonomous society, the Church is
logically entitled to set up conditions not only for ad-
mittance, but also for remaining in what is a juridically
closed society. In other words, the Church, like any other
organization, has the power to deprive unworthy members
of the rights and privileges of membership. Of course,
a complete or radical loss of membership is impossible,
since the baptismal character is indelible. But the bonds
of external communion can be severed. This punish-
ment was hinted at very plainly when our Lord said :
"If he will not hear the church, let him be to thee as the
heathen and publican." u Excommunication was no
doubt also understood when the Apostle said: "deliver
such a one to Satan" and "put away the evil one from
among yourselves."12
devotions are not included In this Wernz, /. c, a. 114, p. 117; Eich-
term; Eich man n, /. c, p. 90. mann, /. c, p. 90.
10 Since the text readi juffrapium 11 Matth. 18, 17.
ferre, it can only mean the active, 12 I Cor. 5, 5, 13; II Thess. 3,
not passive, voice (can. 19); cir. 14; Kobcr, Der Kirchtnbonn, 1863,
P- 9 ft".
►ogle
% ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2255-2256 169
a
The technical name for excommunication is aopurtto*;,
sometimes with the adjective "entire" or accompanied
by the word anathema. The words excotnmunicati et
ecclesia eiecti " are used by ancient synods.13 The effect
of excommunication was separation from the community
of the faithful, in order to bring the delinquent to his
senses, but also to purify and protect the community itself.
Besides this entire or full separation, there came into
existence, towards the beginning of the fifth century, a
milder form of exclusion, which consisted in forbidding
the culprit to participate in the Eucharistic supper in cer-
tain parts of the public service, and in prayer. This
minor excommunication was often connected with public
penance, but after the public penitential system in the TXth
century was abated, it developed into a separate excom-
munication of a peculiar disciplinary character. In
virtue of the Decree of Martin V, "Ad evitania," of
1418, this penalty was incurred by those who unlaw-
fully conversed or communicated with excommunicated
persons and by such as were guilty of transgressing the
privileguim canonis, i.e., the notorious beaters of clerics.14
Mention was made above of anathema ,B as distinct from
excommunication. The term occurs in the Decree of Gra-
tian,10 which permits us to look upon anathema as major
or full excommunication, whilst excommunication without
any further addition and as distinguished from or opposed
to, anathema would be identical with minor excom-
13 Thus the Synod of Antioch, somewhat different wordings; see
A. D. 341, c. 1 (Min-i. Coll. Conri!. , Hoi I week, /. e.. Appendix I, p.
II. 1307): iicoivurriTQVi *al 3551 UffH, can. aas8.
dwo/JXijTOif ; those who refused to is See Numb. XXI, 3; I Cor.
conform to the celebration of Easter XVI, aa; "anathema, tntranttha."
as prescribed by the Council of 18 See c. ia, C 3, q. 4; c. 41,
Nicaca. C II, q. 3; Kober, /. c, p. 37.
14 The text is preserred in two
jle
Y ,1,., Original from
UNIVERSITY OF WISCONSIN
170 PENALTIES
St
munication,1T although the distinction is not very clear.
Therefore Gregory IX simplified the terminology by defin-
ing excommunication pure and simple as full or major
excommunication 1(* and leaving " minor excommunica-
tion " untouched. Anathema then appears as the more
solemn form of pronouncing or declaring excommunica-
tion. Maranatha 10 merely enhanced the outward
solemnity. The excommunicatio minor was officially
abolished by the Constitution " Apostolicae Scdis," 1869,
and the commentators who held that it had been abolished
■ — at least as censura latae sententiae et iuris — were upheld
by an authentic decision of the Holy Office.20 The Code
leaves no room for minor excommunication in whatever
form.
Our text first defines the nature and species of excom-
munication and then determines its effects.
NATURE AND DIVISION
Can. 2257
§1. Excommunicatio est censura qua quis excluditur
a communione fidelium cum effectibus qui in cano-
nibus, qui sequuntur, enumerantur, quique separari
nequeunt.
§2. Dicitur quoque anathema, praesertim si cum
sollemnitatibus infligatur quae in Pontificali Romano
describuntur.
17 C. 58. X, V, 39. 20 S. O., Dec. 5» 1883 (Colt. P.
18 Kobcr, I. c, p. 38. F., n. 1608); I lull week. /. c, p. 114-
19 I Cor. XVI, 22. It means: It would be well if the old formula
Until the Lord coroeth or returneth; for "General Absolution" granted
we Suarez, De Cens., diip. IX, on some occasions would also be
sect. 2, c. 4 f. recast.
§le
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2257-2258 171
Can. 2258
§1. Excommunicati alii sunt vitandi, alii tolerati.
§2. Nemo est vitandus, nisi fuerit nominatim a Sede
Apostolica cxcommunicatus, excommunicatio fuerit
publice dcnuntiata et in dccrcto vel sententia cxpressc
dicatur ipsurti vitari debere, salvo praescripto can.
3343»§i»n. 1.
§1. Excommunication is a censure excluding a person
from the communion of the faithful and accompanied
by the inseparable effects mentioned in the following
canons.
In order to understand this exclusion it must be re-
membered that the Church is a juridical as well as
a spiritual society, consisting of a body and a soul, similar
to an individual or physical person. To the soul (anitna)
of the Church are referred sanctifying grace, the
theological virtues (faith, hope, and charity), the super-
natural moral virtues, as well as the gifts of the Holy
Ghost. To the body (corpus) of the Church belong the
visible members, as organized and governed by the lawful
authority, also the external means conducive to the pur-
pose of the Church, such as Sacraments and sacramentals,
worship, the word of God, offices and benefices.11
The relation of the individual Catholic to the body of
the Church is sometimes styled external communion,
whilst his connection with the soul of the Church is called
internal communion.22 This latter communion is not per
se severed by excommunication, as grace and charity can-
a
c
o
81 Mauella, De Religions ft munio pure interna, externa el
Ecclesia, 1692, p. 344 f. mixta, — the (wo latter making up
32 Reiffenstuel, V, 39. n. 55 ff., the external,
who, however, distinguishes com-
a
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
-
■
pi
173 PENALTIES
not be taken away by the penal sword of the Church, but
are lost only through grievous personal guilt. And as this
guilt can be repaired by perfect contrition, it may happen
that one is excommunicated and yet lives in the friendship
of God. Besides, faith and hope may coexist with mortal
sin." Therefore, the exclusion from the communion of
the faithful concerns the external union with the Church
(corpus Ecclesiae) only. But even this severance, as was
stated at the beginning of this article, cannot be radical,
otherwise an excommunicated person would have to be
rebaptized, which would imply the fallacy that the char-
acter of Baptism is not indelible. Therefore an
aptitudinal or habitual relation to, or bond with, the body
of the Church remains even after the sentence of excom-
munication has gone into effect. Nevertheless it is quite
true that, as St. Chrysostom says,24 excommunication is
the heaviest and severest of all penalties. For it entails
spiritual poverty and helplessness and exposure to more
vehement attacks from the powers of darkness, which are
apt to lead to obstinacy and final despair.
This spiritual helplessness is apparent from the effects
or consequences of excommunication. These are called
inseparable from excommunication (qui separari ne~
queunt) because they ahvays follow in its trail. They
are neither modified nor extended, unlike suspension,
■which admits restriction.
The text is also directed against the assumption of a
major and minor excommunication; and, therefore, the
sentence of minor excommunication (ab homine) must
be considered as abolished. The reason for this
inseparability is easy to perceive. Actual membership in
the Church is totally lost by excommunication. Nor is
as C a8, X, V, 3* 2* Contra Gentiles; tec HoIIweck,
* c.. p. us-
ioi >gle
v ,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 2257-2258 173
a
a
there any essential or juridical difference between excom-
munication and anathema, for the latter, as §2 of can.
2257 states, mainly means added solemnity, especially the
solemn pronouncement of the formula of excommunica-
tion contained in the Pontificate Romanian.™
-
§2. Two classes of excommunicated persons are
mentioned in can. 2258, viz. ; those who are to be avoided
(vitandi) and those who are tolerated (tolerati). This
distinction is substantially, although not technically, em-
bodied in the well-known decree of Martin V (1418),
" InsMper ad evitanda. " Note, however, that this decree
has come down in two different readings, one of them
being that of the Council of Constance, as reported by St.
Antoninus of Florence, the other that preserved in the
acts of the Vth Lateran Council. The difference is rather
substantial. For the Constance text mentions two kinds
of vitandi: those publicly denounced and the notorious
beaters of clerics; whereas the Lateran text enumerates
three: the two just named and those who have so
notoriously fallen into a sentence of excommunication
that " no artifice can conceal it and no pretext of law
excuse it." w
The Code, in §2 of can. 2258, rather favors the Con-
stance text, which it considerably modifies, eliminating the
notorious beaters of clerics and restricting personal de-
nunciation to that made by the Apostolic See. Hence it
says that only those are vitandi who:
a) Have been excommunicated nominally by the
Apostolic See,
b) Whose excommunication was publicly announced,
and
20 Title; "Or do excommunicandi excommunication and anathema.
el absolvendi" ; see also c. 106, 2« Hollwcck, /. c, Appendix I,
C II, q. 3, concerning the form ol p. 355.
§le
£ * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
174 PENALTIES
c) Who have been expressly declared to be vitandi in
the decree or sentence.
All these marks must concur in order to constitute
an excommunicated person a vitandus.
Ad a) . The Apostolic See is here understood as defined
m can. Jt viz.: the Roman Pontiff or the Congregations,
Tribunals, and Offices of the Roman Court
Nomination or by name means mentioning the excom-
municated person's name or describing him so that no
doubt remains as to his identity.27 If only one name is
mentioned, the accomplices, followers, and protectors of
the cxcofntnunieatus are not vitandi, even though they
commit an act forbidden under threat of excommunica-
tion, for there is no excommunication lotae senientiae
which renders one a vitandus.2*
Ad b). The excommunication must be publicly
announced (publice denuntiata), which is achieved by an
authentic edict or decree; thus publication in the "Acta
Apostolicae Sedis" would certainly be sufficient; also
publication in a diocesan newspaper, if this is the official
mouthpiece of the episcopal court. Publication in
ordinary newspapers cannot claim an official character, and
therefore one would not have to heed such a notice.29
Neither would a denunciation before two witnesses be a
public one, so that one thus denounced would become a
vitandus™
Ad c). The sentence or decree must expressly mention
the fact that the excommunicated person is to be avoided;
for, as stated above, there is no excommunication latae
::
2T Thus, for instance, Napoleon VII, 68, 4; Hollweclc, /. c, p. 123.
was excommunicated without men- 20 This applies alto to the
tioning his name, but clearly Otstrvatori Romano, because it
designated; Kober, Der Kirchcn- is not the official organ of the
bann, p. 259. VaUcan.
28 Bened. XIV, De Syn. Dioec, 80 Ilollweck, J. ft, p. "3.
jle
f - j , Original fro m
UNIVERSITY OF WISCONSIN
CANON 2257-2258 175
a>
sententiae or a iure which ipso facto produces that effect.
A decree is issued if no formal procedure is followed,
because the fact of the criminal act and the contumacy
are established. A sentence is issued after a trial.
Now, from these three combined conditions only one
-
exception is made, vis., that mentioned under can. 2343,
§if n. I : for those who lay violent hands on the person of
the Roman Pontiff. This is a remnant of the legislation
concerning notorious beaters of clerics, but restricted to
the sacred person of the Pontiff.
We may add that the distinction between vitandi and
toleraii is not to be taken as intrinsically affecting the
nature and consequences of excommunication. Both
classes of excommunicati are equally cut off from the
communion of the faithful, both experience the same
effects, as far as religious communion is concerned.81
The only difference regards civil intercourse, as will be
seen under can. 2267.
INSEPARABLE EFFECTS
Suarez " notes that, although the adequate effect of ex-
communication is but one, namely, total exclusion from the
communion of the faithful, yet in that communion may be
distinguished several rights and favors. Privation of
these rights, therefore, constitutes as many effects of ex-
communication.
The Code enumerates these effects, first, as to the
81 Suarrz thought that an txcom- Ecclesia, 1892, p. 474; Moll week,
muniratus icleratus wtti itill a /. C, p. 115 f. A difference if
member of the Church (De fide, noted in can. 2262, § 2, n. s,
diip. IX, •ect, 1, n. 4); but Bell- which icemi to partake of the
armine (De Ecclesia Milit., I. Ill, spiritual nature.
c. 6) held the correct doctrine; *2 De Censvris, disp. IX, proccm.
cfr. Maizella. De Religione et (Vol. XXIII, p. 260).
jle
C* ^ v .J,., Original fro ni
UNIVERSITY OF WISCONSIN
■
176 PENALTIES i
o/nYia divina, then as to acfuj legitimi, and, finally, as to
civil intercourse.
EXCLUSION FROM DIVINE OFFICES
Can. 2259
§1. Excommunicatus quilibct caret iure assistendi
divinis omciis, non tamen praedicationi verbi Dei.
§2. Si passive assistat toleratus, non est necesse ut
expellatur; si vitandus, expellendus est, aut, si expelli
ncqucat, ab officio ccssandum. dummodo id fieri possit
sine gravi incommodo ; ab assistentia vero activa, quae
aliquam secumferat participationem in celebrandis
divinis officiis, repellatur non solum vitandus, sed etiam
quilibet post sententiam declaratoriam vel condem-
natoriam aut alioquin notorie excommunicatus.
No excommunicated person has the right to assist at
divine services; the only exception is hearing the word of
God, which, therefore, is not forbidden. In the olden
time even gentiles and heretics were allowed in church
until the Mass of the catechumens began. as The sermon,
though an ecclesiastical or divine office, and therefore
specially mentioned in the text, is intended for instruction
and correction.34
What divine offices are has been stated under can. 2256,
n. I, viz.: the acts of public worship performed in the
name of the Church by her clergy, e.g., the Holy
Sacrifice of the Mass, the canonical office publicly recited
by those who are obliged to recite it in virtue of can. 135
or can. 610, public prayers, processions (see can. 1290),
blessings and consecrations performed according to the
33 C. 67, Dist t, de consccr. 84 C. 43. X, V, 39-
jle
f ■ J , Original from
UNIVERSITY OF WISCONSIN
■
pi
benefice.39
E
'■-.
CANON 2259 177
liturgical books of the Church." Many popular
devotions, like the Rosary, the Stations of the Cross, etc.,
even if recited under the leadership of a priest, are not
divine offices in the sense of our text, and therefore an ex-
communicated person is not debarred w from them.
1. Assistance at sermons or lectures (praedicatio verb*
Dei) does not permit assistance at the divine service,87
preceding or following, as stated in §2.
2. Since the right of assisting at Mass is taken away, no
obligation remains to hear Mass on Sundays and holydays.
The most that can be asserted is the imputation of
voluntarium in causa if an excommunicato should neglect
to ask for absolution for a considerable time88 (but see
can. 2254).
3. Somewhat different is the obligation of reciting the
Breviary, privately, not in choir; all authors say that
this duty remains, since the clergyman is a public person,
and is, as a rule, furthermore obliged by reason of a
§2 of can. 2259 determines more precisely the extent
of the exclusion from divine offices. A twofold dis-
tinction is made : between active and passive assistance,
and between tolcrati and vitandi. Active assistance
entails a certain participation in the celebration of divine
offices ; such as acting as sacristan, or acolythe, or sacred
minister or organist, or choir-singer, or as a witness at
weddings* (For the matrimonial ceremony is both a
B5 I. .iv iii.iiin, J. c, I., I, tr. V, p. so ( a: ■-.-,■. ,1 is. /. c., Lehmkuh!, /. c.
II, c. x, n. 6. The reciting clergyman should say
88 See Stimmen der Zeit, July "Exaudt" etc., instead of "Dominus
ipso. Vol. so. p. 316". vobiscum," sub veniatu He may
37 Layman n, /. r. also, for reasons of necessity or
88 This la what Lehmkuhi says, utility, employ a companion ; !! ti-
ll, n. 892, and is sententia com- arius a Sexten, /. e„ p. 57.
munis; sec Schmalzgnieber, V, 39, 40 C. 7, C. II, q. 3. Congrega-
n. 131; Hollweck, /. c, p. 119. tional singing of liturgical aonga, or
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
178 PENALTIES
Sacrament on the side of the contracting parties, and a
sacramental because of the nuptial blessing). Passive
attendance may be understood as inactive or inert par-
ticipation, which, of course excludes the recitation of
prayers in common with the other faithful.
The text then says :
a) That passive assistance may be permitted to a
toleratus, and it is not necessary to expel him from the
assembly, e. g., from the church or chapel, although the
priest who says Mass and others may know of the excom-
munication.
b) Active assistance must be denied not only to vitandi,
but also to any one who is excommunicated, even though
toleratus, after a declaratory or condemnatory sentence
has been issued or the excommunication has become
notorious. This is in keeping with can. 2232, which safe-
guards the good name of the delinquent as long as no
sentence or notoriety renders him disreputable.
c) Vitandi are denied active as well as passive assistance
and must be expelled from the place where divine services
are held.41 Should expulsion be impossible," because of
great inconvenience, the divine office must cease at once,
unless the rubrics demand a continuance. Thus, for
instance, if Mass has already proceeded to the beginning
of the Canon, it must be continued until Communion,
inclusively, after which the priest should admonish the
culprit to depart and, in case of resistance, leave the altar
immediately if this can be done without serious conse-
participation therein, would fall 42 Formerly those who incited to
under active assistance. disobedience in this regard or
41 The constant formula in the proved stubborn incurred Uie eotcom-
Decretals is: "excommunicatis et munication reserved to the Holr
ititerdktu penitus exclusis" ; cc. See; c a, Clem. V, 10.
43. 57. X, V, 39; c. 17, X, V, 40
and pauim.
'le
Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 2260-2261 179
quences.43 The same applies to the distribution of Com-
munion outside of the Mass. If quarrels or other evil
results must be feared in case of interruption, the divine
office may be completed On the other hand, even a priest
or religious who is vitandus may be expelled by laymen or
a policeman without fear of violating the privilege of
clerical immunity.44
RECEPTION AND ADMINISTRATION OF SACRAMENTS AND
SACRAMENTALS
Can. 2260
§1. Nee potest excommunicatus Sacramenta re-
cipere ; imo post sententiam declarator iain aut condem-
natoriam nee Bacrarnentalia.
§2. Quod attinet ad ecclesiasticam sepulturam,
servetur praescriptum can. 1240, §1, n. 2.
Can. 2261
§1. Prohibetur excommunicatus licite Sacramenta et
Sacramentalia conficere et ministrare, salvis ex-
ceptionibus quae sequuntur.
§2. Fideles, salvo praescripto §3, possunt ex
qualibet iusta causa ab excommunicato Sacramenta et
Sacramentalia petere, maxime si alii ministri desint, et
tunc excommunicatus requisitus potest eadem
ministrare neque ulla tenetur obligatione causam a re*
quirente percontandi.
§3. Sed ab excommunicatis vitandis necnon ab aliis
excommunicatis, postquam intercessit sententia con-
•s He may finish in the sacristy 44 Cfr. c. 16, X, V, 39; Laymana,
or simply close the Mass there and I. c.
then; Layraann, /. e.
jle
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
-
■
pi
180 PENALTIES
demnatoria aut declaratoria, ndeles in solo mortis
pcriculo possunt petere turn absolutionem sacra-
mentalem ad normam can. 882, 2252, turn etiam, si alii
desint ministri, cetera Sacramenta et Sacramentalia.
These two canons are closely related to each other,
because both treat of the same subject, vis.: the Sacra-
ments and Sacramentals. Can. 2260 determines the re-
ception or passive use of the Sacraments, whilst can. 2261
treats of the minister or active administration of these
means of grace.
1. No excommunicated person can (lawfully) receive
the Sacraments, and after a declaratory or condemnatory
sentence he cannot ercn receive the Sacramentals™
Notice the word "lawfully"; we have added it, within
brackets, because it conveys the true meaning of the text;
for the reception of the Sacraments by an excommunicated
person would be valid, though illicit, with the exception
of Penance. The reason is that the efficacy o*f the
Sacraments in general does not depend on human or
ecclesiastical will and command, but orr the institution of
Christ, but the validity of the Sacrament of Penance
depends on jurisdiction, which may be taken away by
ecclesiastical authority.46
The use of the sacramentals (can. 1144) by an excom-
municated person is forbidden only after a declaratory or
condemnatory sentence of excommunication has been
issued. Sacramentals may be considered under a two-
fold aspect:
a) As acts or things of a private person or for private
devotion and pious use, or
b) As sacred things purposely used for the sake of the
*s Sec cc. 32. S9p X, V, 39- *fl Layraann, /. c, c. I, tr. V, p. 5,
■-. «. B. I.
jle
| , Original fro ni
UNIVERSITY OF WISCONSIN
'■-.
CANON 2260-22^1 181
spiritual benefit which accrues to them from the blessing
or consecration of the Church. As public or ecclesiastical
means of devotion they are forbidden to the excom-
municated. But in their private devotion they may make
use of them.. Thys the use of sacred images, Holy Water,
the sign of the Cross is permitted them.47
Excommunicated persons may even enter ar church
privately to pray there. On the other hand, priests are
not allowed to impart blessings to them, e. g., bless candles,
bread, etc., for them or give them the blessing post
parti'.m; for this would be not merely private but public
worship. It may also be noted that, as excommunicated
persons are obliged sub grcrvi to abstain from receiving the
Sacraments (urgent cases — see can. 2252, 2254 — ex-
cepted) so ministers are bound to refrain from administer-
ing these to such persons.48
Concerning ecclesiastical burial consult can. 1240, §1,
n- 2, which excludes from this sacramental all excom-
municated persons against whom a declaratory or condem-
natory sentence has been issued; a fortiori, of course,
the vitandi.
Can. 2261, §1 prohibits excommunicated persons from
administering the Sacraments and sacramentals, and
priests from saying Mass.
Here the text expressly uses Ivcite (lawfully), which
undoubtedly refers to all the Sacraments, except Penance,
under certain conditions explained in can. 2264. As the
power of order, which is required for the administration
of the Sacraments, cannot be lost, the validity is not
47 The use of the SacramentaU hi operantit, inasmuch as this act may
permitted, not in order to obtain produce a proper disposition on the
the fruits derived from the blessing part of the excommunicated person,
of the Church, but to venerate «8 Suarez, Dc Censuris, disp. X,
them; Hilarius a Sexten, /. Ct p. 56- Met » and 2; cfr. can. 855; can.
It may even be useful, ex ofer* 0364.
jle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-'
■
pi
182 PENALTIES
endangered. Neither is the Sacrament of Matrimony
invalid if contracted by excommunicated parties,4"
provided of course the form be duly observed. The
penalties so inflicted on such as violate this canon are
stated under can. 2333, §3- Besides, they become
irregular according to can. 985, n. 7.
However, there are exceptions stated in our canon, and
consequently the penalty and irregularity just mentioned
do not affect those administering the Sacraments under
such circumstances. The exceptions are:
1. Provided the minister is not a mtandus or under a
declaratory or condemnatory sentence, the faithful may,
for amy fust, reason, ask him to administer the Sacraments
and sacra-mentals to them. This is more especially true if
no other minister is available, in which case the excom-
municated minister thus asked may administer the
Sacraments and sacramentals without as much as inquiring
for the reason why the petitioner wishes to receive them.
Hence the faithful are to judge in such cases whether
the reason is just. Any reason may be called just which
promotes devotion or wards off temptations or is prompted
by real convenience, for instance, if one does not like to
call another minister.
This mitigation — such it is even in comparison with
Martin V's* decree "Ad ezntanda" — is accorded only in
case the minister is not vitandus nor under a declaratory
or condemnatory sentence, according to
2. The second exception. If the minister, •. e., priest,
is a vitandus or excommunicated in virtue of a condem-
48 For the pnrtica themselves arc priest has to do in such cases is
the ministers of this Sacrament, explained in can. 1066.
neither would they receive it in- 50 Formerly deposition was de-
validly (though unworthily), if creed for the ministers; sec cc 6, 7,
under censure; what the assisting C. n, q. 3: c. 109, C II, q. 3 some-
what mitigated; cc 3-6, X, V, 37.
,1,., Original from
UNIVERSITY OF WISCONSIN
>gle
CANON 2262 183
natory or declaratory sentence, the faithful may demand
from him absolution in danger of death, even though
other priests be present who are not excommunicated*1
but otiier Sacraments or sacramentals they may receive
from such a priest only if no other ministers are available.
" Deesse " h not precisely synonymous with " non
adessc" (see can. 1098, n. 2), for the former term, in
classical language, means " to fail, to be wanting " ; yet in
connection with an object in the dative case it may also
signify, " to be absent, not to be there." " Hence by a
benign, though legitimate, interpretation we dare say that
if no other non-excommunicated priests are present, an
excommunicated one may administer all the Sacraments
and sacramentals when there is danger of death. This
interpretation is justified by the psychological condition of
the sick person and affords another proof of the kindness
of the Church.
.
EXCLUSION FROM THE SUFFRAGIA
E
Can. 2262
-
a.
§1. Excommunicato non fit particeps indulgenti-
arum. suffragiorum, publicarum Ecclesiae precum.
§2. Non prohibentur tamen:
u° Fideles privatim pro eo orare;
a.° Sacerdotes Missam privatim ac remote* scandalo
pro eo applicare; sed, si sit vitandus, pro eius con-
versione tantum.
■
We have retained in the inscription the old term
(suffragia) common to all the acts mentioned in the text:
<
Dl Sec can. 8B2, 2*52, 53 Thus Cicero; convivio futr
defuit; hello defuisti.
oogle
k ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
1 84 PENALTIES
indulgences, suffrages, public prayers. The technical term
for this effect of excommunication is " privatio cotn-
munium ecclesiae euffragiorum," viz.: privation of the
spiritual aids by which members of the Church assist one
another in order either to atone for temporal punishments
(per satisfactionem) or to obtain, either directly or in-
directly, spiritual benefits (per hnpetrationem) . If these
suffrages are offered privately, by private persons in their
own name, they may be applied to excommunicated per-
sons, and therefore the canon has nothing to do with
these." But if they are offered in the name and by
authority of the Church, they fall under the present law,
because the Church wills to exclude the excommunicated
from these suffrages.**
The text (§1) says that the excommunicated do not
partake of the indulgences, suffrages, and public prayers.
of the Church, either by way of satisfaction or impetra-
tion.
a) Indulgences cannot be gained by, nor applied to, ex-
communicated persons, and no private application 13
possible because all indulgences flow from the treasury
of the Church, over which her public authority has
absolute control.
b) Suffrages are especially the fruits of Holy Mass.
and prayers or good works, such as alms and penances,
offered by way of satisfaction.
c) The public prayers of the Church may be under-
stood as prayers chiefly, though not exclusively, of
impetratory intercession, offered in the name of the
SSCfr. Suarei, /. c, disp. IX, be performed for excommunicated
■ect if n. 1 ff. (Vol. 23, p. 260 f); persons; thus he may pray, fast,
Hilariua a Sexten, /. e.M p. 58; give alms, and even offer the holy
Uollweck, /. f., p. 118; private Sacrifice in his own name for them.
tuffragia, i. 1,, Mich as arc olTercd o« Suarez, /. o,
in his own name by the priest, may
oogle
, ,|Y> Original fro m
UNIVERSITY OF WISCONSIN
-
CANON 2262 185
Church, such as all the liturgical prayers are: the choir
service or recitation of the holy office, processions, and
blessings, as far as they are contained fn the liturgical
books. Excommunicated persons, whether vitandi or to-
lerati, are excluded from all these. Navarrus 65 held that
these suffragia could be applied by any priest, provided he
was convinced that the excommunicated person was in
the state of grace. This view is no longer tenable. Our
text is plainly against it, but it does admit, what was quite
commonly held and partly modified by previous decisions,
namely, that
a) The faithful may pray privately for excommunicated
persons, by way of impetration and satisfaction," which,
of course, depends solely on the acceptance of God.
b) Priests may privately offer the Mass for a toleraius,
provided no scandal is given; but for a vitandus only for
his conversion. What private application means is not
expressly stated in our Code and would be difficult to
define briefly. Private application may mean the
application of the most special fruits of holy Mass, which
the priest gains for himself as a private person. There
cannot be any doubt that he may apply this fruit to any
kind of excommunicated person.87 As to the fructus
ministerialis, or special fruit to be applied to one who asks
for it, there is doubt. If we identify privatim
applicare with a private Mass, it would mean that only a
solemn or conventual or parochial Mass is excluded.58 On
55 Navarrus held this view against propriam et pertonalem satisfac-
the clear text of the? "Ad roitonda" ; ttonem offerenda," and thim he ex.
Hollweck, /. c, p. 119, but vras tends (»*-, n. 5) to the Memento in
opposed by Suarez {De Cens~, disp., holy Mass,
1\, sect. 3, n. a}; at least Suarez S7 See preceding note from
excluded any direct intention. Suarez; also Hollweck, /. c, p. 118.
66 Suarez, /. e.. disp. IX, sect. 5. 58 Thus Eichmann, /. e.. p. 94;
n. 3: "Dicendum est, licitutn esse Ayrinhac, /. c, p. 124 seems to
privatim fro excommunicato urate, imply the same.
".
Go >gle
j ^ Original fro m
UNIVERSITY OF WISCONSIN
i86 PENALTIES
the other hand, if we interpret private application as mean-
ing the priest's own fruits, then we should have to ex-
• elude the ministerial fruit, and no stipend (in the proper
sense) could be accepted for such application. The
intention of the lawgiver here is uncertain. The text says
that a Mass may be applied even for a vitandus, but only
for his conversion. This was allowed for Greek schis-
matics by a decision of the Holy Office, which also
admitted the acceptance of a stipend.08 May we not draw
the legitimate conclusion : If application of the ministerial
fruit is allowed because a stipend is permitted, when the
purpose is conversion, even for a vitandus, it is logical
to say that private application implies application of the
ministerial fruit and acceptance of a stipend, provided
the Mass is no conventual or parochial or solemn one and
scandal is avoided, for instance, by not publishing the
Mass or not making it known to any one. A fortiori a
private application, if no scandal is given, is permitted for
an excommunicatus taleratus. The Holy Office also
wishes all scandal removed in case Freemasons should
order Masses and forbids the clergy to accede to the
pressure and commands of such if they insist on having
the Masses published in papers or invitations.60 It goes
without saying that the priest is not allowed to countenance
any disobedience or disregard of censures by a too free
acceptance of Mass stipends. Solemn conventual or
paroohial Masses Cannot be lawfully offered for excom-
municated persons, either living or dead. Besides, it is
a rather venturesome interpretation to allow a Mass to
be said for a dead vitandus, i. e., one who died under
such an excommunication, because the text allows it to be
BOS. O., April ip. 1837 iColL eo S. O., July 5. 1878 (Coll. P. F.,
P. F., n. 858); *ee our Comment., n. 1495).
Vol. IV, p. 14J f.
v ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
>gle
CANON 2263-2265 187
a
done only for his conversion,81 which after death is
impossible. But for a dead excomtnunicatus tolcratus a
private application, provided no scandal arises there-
from, may and is permitted.
■
EXCLUSION FROM LEGAL ACTO
Can. 2263
Removetur excornmunicatus ab actibus legitimis
ecclesiastic is intra fines suis in locis iure definitos;
nequit in causis ecclesiasticis agere, nisi ad normara
can. 1654 ; prohibetur ecclesiasticis officiis scu muner-
ibus fungi, concessisque antea ab Ecclesia privilegiis
frui.
Can. 2264
Actus iurisdictionis tarn fori externi quam fori in-
terni positus ab excommunicato est illicit us ; et, si lata
fuerit sententia condemnatoria vel declaratoria, etiam
invalidus, salvo praescripto can. 2261, §3; secus est
validus, imo etiam licitus, si a fidelibus petitus sit ad
norm am mem. can. 2261, §2.
Can. 2265
§1. Quilibet excornmunicatus:
i.° Prohibetur iure eligendi, praesentandi, no-
minandi;
fli Thus Ayrinhac, /. c, p. 124; the made no incorrect statement, must
quotations from Wcrnz and Gasparri be supplemented and completed by
do not prove his assumption; our what we say above. We add: From
text is too clear: " sed pro eius this it is evident that, if absolution
cornerstone tantutn." Therefore. from censures is (riven, even after
what we said in Vol. IV, p. 145 f. death, every restriction as to the
of this Commentary, though wc application of Masses is removed.
►ogle
£ ' ^ V(-,|rt Original from
UNIVERSITY OF WISCONSIN
■
188 PENALTIES
a.0 Nequit consequi dignitates, officia, beneficia.
pcnsiones ecclcsiasticas aliudve munus in Ecclesia;
3.0 Promoveri nequit ad ordines.
§2. Actus tamen positus contra praescriptum §i, nn.
1, 2, non est nullus, nisi positus fuerit ab excommuni-
cato vitando vel ab alio excommunicato post senten-
tiam declaratoriam vel condemnatoriam ; quod si haec
sententia lata fuerit, excommunicatus nequit prae-
terea gratiam ullam pontificiam valide consequi, nisi
in pontificio rescripto mentio de excommunicatione
fiat.
These three canons logically comprise the effects of legal
acts, including acts of jurisdiction.
I. Forensic and honorary acts are those which the canon
law permits the members of the Church to perform,
especially in the ecclesiastical court and on ecclesiastical
occasions.
a) The right of acting as plaintiff is denied to excom-
municated persons except in their own case of excom-
munication, and an excommunicatus as well as his report
or rinding may be rejected as suspect ; he is allowed to be
neither arbiter nor counsel (lawyer).02
b) Excommunicated persons are not allowed to act as
sponsors at Baptism or Confirmation, as far as stated
under can. 765 f. and can. 795 f.
c) They are not allowed to act as administrators of
ecclesiastical property or to perform any ecclesiastical
commission, for all these are comprised by the name of
ecclesiastical offices and functions.
d) They may not enjoy any privileges or favors
C2Sec can. 1654; 1754. I a; 1795. Ui 1931 1 2256. n. 2; c. 17, C. 6, q.
1 j c. 8, 6*. Vf 11.
oogle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
CANON 2263-2265 189
granted by the Church before they were excommunicated,
no matter whether these were given by higher or inferior
prelates.63 Therefore absolution from censures, at least
provisional, is added in most rescripts.
Note, however, that the text says : fungi and frui, from
which it must be concluded that the prohibition only lasts
until absolution from excommunication is granted, and
no formal rehabilitation is required. Besides, it appears
quite reasonable that forensic acts, •". *?., acts in the
ecclesiastical court, or rather exclusion from the office of
judge, lawyer, auditor, counsel, promotor, should take
effect only after a declaratory or condemnatory sentence.
This seems necessary for the safety and certainty of
juridical procedure.04
2. Acts of jurisdiction of the external and internal
forum are mentioned in can. 2264 as follows:
a) Simply excommunicated persons can perform acts
of jurisdiction validly (not licitly) ; their acts are not
only valid, but even lawful, if the faithful ask such ex-
communicated persons to perform them, according to
can. 2261, §2.
b) Persons excommunicated by a condemnatory or de-
claratory sentence, and a fortiori vtiandi, can neither
validly nor lawfully perform acts of jurisdiction, except
in danger of death, according to can. 2261, §3. Acts of
jurisdiction are here expressly declared to comprise both
the internal and the external forum. An act of juris-
diction is the so-called missio canonica, because the com-
mission to teach or preach, according to the more common
oa The text does not especially 3: Hollweck, /. c, p. uo. note 10.
mention (can. 2256, n. i) papal fl* See can. 2123, § 4, because the
favors; therefore also episcopal persons being public, the public wel-
grants or favors of Ordinaries fare seems involved; Eichmann.
are excluded; see c. 1, 6", I, /. ft. p. 94 f.
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
*90
PENALTIES
doctrine, is an act emanating from jurisdiction. Con-
sequently this mission also is lost by excommunication.85
However, here, too, must be applied what our text
allows for those simply excommunicated without a
special sentence. Therefore, if an excommunicated
priest would be asked to preach or teach, he could do it
lawfully.
3. Can. 2265 concerns ecclesiastical offices and orders,
either in the active or passive sense.
a) Excommunicated persons are excluded from the
right of electing (voting), presenting, nominating; but the
vote or presentation (iuspatronatus) or nomination is not
invalid unless made by a vitandus or one excommunicated
by a declaratory or condemnatory sentence If a chapter
or college has the right of electing, presenting, or nomi-
nating, the act is valid or invalid according to can. 167, §2.
This privation lasts until the excommunication is re-
moved.00
b) No excommunicated person may obtain any dignity,
ofhee, benefice, ecclesiastical pension, or other conv-
mission in the Church. Here again the invalidity of die
act conferring these dignities, offices, etc., attaches only
to a vitandus or one who is under a declaratory or con-
demnatory sentence, as §2 states. It may be added that
no dignity is excepted. " Munus, " which broadly
signifies any office, may be understood of commissions or
functions ; thus, for instance, a proxy is not allowed or
valid under given circumstances."
86 Suarei, Dt Cms,, disp. XII,
■ect, 2, n. 4; Hollweck, /. c, p.
i.m. Assistance at marriage is no
act of jurisdiction; liowevcr, can.
109s. 9 i, n. 1 must be coniulted.
00 See can. i4"o. 8 4. Excom-
municated Cardinals, pending the
conclave or election, are not de-
prived of either the active or the
>Ie
passive vote, but only for this one
occasion; ("Tacantt Sede," n. 29).
If a curious reader should ssk;
but what if, by a very improbable
supposition, an excommunicated
cardinal should be elected Pope?
Answer: he would go to confession
or ask any confessor to absolve
him from the censure. That is all.
Original from
UNIVERSITY OF WISCONSIN
CANON 2263-2265
191
■
c) Ato o>ie wwy 6c /taffy promoted to orders as long as
he is excommunicated. Order is here taken according to
can. 950, i . e., including all orders, even tonsure ; for there
is no reason why the term should be restricted to '* holy "
orders, nor does the context call for a milder interpre-
tation.68 A question might arise as to minor orders and
tonsure, whether they would be invalidly conferred by
a prelate who is under a declaratory or condemnatory
sentence of excommunication, because these orders are
not, properly speaking, Sacraments, but merely sacra-
mentals. Comparing can. 2372 with our text, their
validity can be solidly defended.
d) No one excommunicated by a declaratory or con-
demnatory sentence, including vitandi, can obtain any
papal favor, unless mention is made of the excommuni-
cation in the papal rescript. Therefore, any favor, e. g.,
a monsignorship, a dispensation, an indulgence, etc.,
granted to such a person would be invalid unless it con-
tained the clause: " non obstante exeommunieatione or
quacumque censura" or a similar one.ae
07 See c. 15, X, If 38; c. 34, X,
II, %j\ Hoi 1 week, L c, p. 121;
Schmaligrueber (V, 39. n- *54)
excepted pensions, but our Code
is plainly against any exception.
08 Ayrinhac, I. e., p. 126, says:
"No one under excommunication
should be promoted to holy orders."
00 Cfr. the Ordo Strvandm in S.
Cong. Trib. Off., Sept. ao» 1908,
HI, ;i. 6, where, however, only
"nom-.natwi excommunicaiC axe
mentioned. The clausula* "tM
plenitudine potestatis," "ex certa
sdentia" would not be sufficient;
Snares, De Crns., disp. XIII, sect.
a, n. 14.
gle
Original from
UNIVERSITY OF WISCONSIN
■--.
192 PENALTIES
LOSS OF INCOME FROM DIGNITY, OFFICE, etc.
Can. 2266
Post sententiam condemnatoriam vcl dcclaratoriam
excommunicatus manet privatus fructibus dignitatis,
officii, bcncficii, pcnsionis, muncris, si quod habcat in
Ecclesia; et vitandus ipsatr.et dignitate, officio,
beneficio, pensiono, munere.
As the income or revenue from ecclesiastical offices is
justly denied to those who are cut off from the communion
of the Giurch,™ it follows that the material part or
income cannot be claimed by an excommunicatus. How-
ever, self-execution is not required until a formal sentence
has been issued, and hence
I. After a declaratory or condemnatory sentence the ex-
communicated clergyman — for these the text has chiefly
in view — remains deprived of the fruits, i. e., revenues,
salary, income, accruing from the dignity, ofiice, benefice,
pension, charge, which he holds in the Church.
A doubt indeed arises concerning the obligation of bene-
ficiaries or office holders. Arc they obliged in conscience
(in foro inferno) to make restitution of the fruits re-
ceived from the time or moment in which the excom-
munication was incurred until the declaratory sentence
was issued? The majority of authors say, yes.71 How-
ever, this must be understood with due regard to can.
to c. sj, X, II, a8. Would the incumbent lose the
Tl Cfr. Suarcz, Dt Cent., disp. income if he were excommunicated?
XIII, sect. 2, a. 7 ft. — A question By ecclesiastical law he undoubtedly
may arise concerning a charge would; but we hardly believe that
(muMus), for instance, organist, the Church would urge the for-
■exton, etc., when paid by the ieiture.
government or civil authority.
jle
C* ^ v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2266-2267 J93
2232, §i, which says that a penalty lata* sententiae binds
in both fora, but need not be observed if defamation
should follow, nor can its observance be urged if the crime
was not notorious. Consequently, the obligation of
restitution runs from the moment the censure was
-
incurred, but does not urge either in the internal or the
external forum if loss of reputation would follow or if the
crime was occult.
2. A vitandus loses not only the fruits, but also his
dignity, office, benefice, pension, or charge, and conse-
quently all these dignities and offices become vacant (can.
183. §0.
01
SOCIAL OR CIVIL INTERCOURSE
Can. 2267
■
Communionem in profanis cum excommunicato
vitando fideles vitare debent, nisi agatur de coniuge,
parentibus, liberis, famulis, subditis, et generatim nisi
rationabilis causa excuset.
The faithful shall avoid social intercourse with zitandi.
From this obligation are exempted those bound by matri-
monial bonds, parents, children, servants, and subjects.
Besides, any reasonable cause may excuse others.
The extent of this avoidance was expressed in the
following verse: " Os, orare, vale, communio, mensa
negatur.'' 72
■"■
c
a
5 „ „ *•
72 Cfr. the Glossa ad verbum aliis, poral utility; lex, the married
C. 3. *>"■ Vj II f Hilarius ■ Sexten, couple; humile, submission or obe-
l. c, p. 63; Hollweck, /. c, p. 134. dience, children and parents, mas-
But they also offered reasons which ters and servants; res ignorata,
excused from this observance and ignorance of fact or law; necessitas,
put them in this verse: "Utile, lex, any spiritual or temporal necessity
humile, res ignorata, necesst." or need.
Utile signified any spiritual or cor-
jle
£ " -» v J„ Original from
UNIVERSITY OF WISCONSIN
194 PENALTIES
The os was taken as oral and epistolary intercourse;
the orarc as communion in private prayer; the vale as
signs of special friendship, but not of common or usual
salutations; communio as living in the same house and
having commercial intercourse; mensa as eating at the
same table and accepting invitations to banquets. Our
text, being very broad, should not cause any alarm or mis-
giving, as if business would come to a standstill and social
ties be rent assunder.
Art. II
THE INTERDICT
It is a rather venturesome attempt to say anything
definite on the origin of this so-called censure. Broadly
speaking, the opinion that the personal interdict was de-
veloped from temporary suspension, and the local interdict
from excommunication, seems quite tenable.1 Like
other ecclesiastical disciplines, the interdict must not be
presumed to have been introduced " cut and dried, " but
had its normal evolution from the ninth to the twelfth
centuries,2 when it appears as an independent penalty
side by side with excommunication and suspension. It
cannot, however, be denied that abuses had been com-
mitted, which may perhaps be excused, but cannot be de-
fended on a juridical basis. B Local interdicts presup-
pose unity of faith and also, we dare say, the idea that
l See Kober, Das Interdict (Arch, 13 ff.; 516 ff.; and the commenta-
■
fiir koth. K.R., 1869, P- 3 «•)
Krebihl, Tke Interdict, its Hirtory 2 We find traces of a partial local
and Operation, Washington 1909
Baudinhon, in Cath. Encyct., Vol
VIII, p. 73 '•! HoIIweck. /. c, p
tors on X, V, 39.
interdict already in the Vlth cen-
tury, when certain churches of
a city were closed for Berrice:
126 ff.; Eichmann, /. c, p. 17 f.; but such cases were extremely rare.
Hinachiua, K.-R., IV, 804 ff.; V, a Boudtohon, /. c.
ogle
f ■ , ,] » Original from
UNIVERSITY OF WISCONSIN
CANON 2267-2268 195
£
ecclesiastical authority laid a certain claim to territorial
rights. The close interpenetration of Church and State
in the Middle Ages made it possible to get this penalty res-
pected by rulers and subjects. But the disruption of re-
ligious unity led to a mitigation of that "dangerous
weapon" in the sixteenth century. The last general local
interdict was imposed by Paul V, in 1606, on the Republic
of Venice, without results- The interdict put on several
Sicilian dioceses by Clement XI, in 17 13, was also with-
out practical effect. Of modern date are the vindictive
interdicts imposed on the city of Adria, in 190Q, and Gala-
tina, in 1913, which are recorded in the official bulletin of
the Holy See.* We also know that a congregation in one
of our American dioceses was laid under the interdict some
years ago by the Ordinary. But the use of this ecclesias-
tical penalty has, in the last two centuries, been exceedingly
moderate.
The Code first defines an interdict, then sets forth who
may inflict it and how far it extends, describes its effects,
and, finally, mentions ingressus ecclesiae as a kind of
interdict.
■_
DEFINITION AND DIVISION
■
c
Can. 2268
§1. Inter die turn est censura qua fideles, in com-
munione Ecclesiae permanentes, prohibentur sacris
quae in canonibus, qui sequuntur, enumeratur.
§2. Prohibitio fit vel directe per interdictum per-
sonale, cum personis ipsis usus eorum bonorum inter-
dicitur; vel indirecte per interdictum locale, cum
*A.A*.Sn I.765; V, si 7.
§le
j ^ Original from
UNIVERSITY OF WISCONSIN
196 PENALTIES
certis in locis eorundem dispensatio vel perceptio
vctatur.
1. The Roman Law B mentions various interdicts, which,
however, only remotely resemble the one described here.
Formerly an interdict meant an order forbidding some-
thing to be done; but at present the term designates not
only a pretorian restraint, but a particular penalty, with
effects attached by common law. Hence the Code defines
it as a censure by which the faithful, while remaining in
communion with the Church, are forbidden certain
[sacred things or benefits] enumerated in the following
canons.
a) The generic nomenclature " c ensure" is here re-
tained, although the interdict may also be inflicted as a
vindictive penalty.0* In case of doubt, therefore, it is to
be regarded as a censure.8
b) In communione Ecelesiae permanentes indicates an
essential difference from excommunication, which does
not leave union with or membership in the Church intact,
but abolishes it. The interdict merely limits the practical
use of that communion. Besides in an interdict the
prohibition of sacred things is limited ; but, unless so ex-
pressed in the law, it is unlimited in excommunication.
c) The term fideles, faithful, clearly insinuates that
the interdict is also distinguished from suspension be-
cause the latter is inflicted on clerics only (can. 2256,
§2) ; besides, suspension can never be local, but is always
personal.0' This, of course, is also true of excommuni-
cation.
Q
■
n See Inst,, IV, 15; Dig., 43, 1; interdict, if such a penalty were
j9, 12; Cod., VIII, r, fee our inflicted, would not be a censure.
Commentary, Vol. VIII. p. 135. which strictly supposes a erievoua.
fi" See can. 3291, n. i-». morally imputable transgression.
0 C;in. 2256, I 2. A purely local o* Ililarius a Scxtco, /. c, p. 8a.
_;:
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
■
CANON 2268 197
d) Concerning the effects of an interdict, the text
simply says: " sacris," and to determine the import of
these sacred things refers to the canons which immediately
follow; besides these no others are enumerated. Note
that the text does not mention inseparable effects, qui
separari nequunt. This is logical, for the interdict does
not disrupt communion with the faithful, and conse-
quently we find that the extent is not the same for each
kind of interdict.
2. Division. An interdict is personal when the pro-
hibition directly concerns the personal use of certain
sacred things, •". e., when persons are directly intended by
the interdict ;
b) It is local when in recto the place, and only in-
directly the persons living in that place, are struck by this
penalty. In interdicted places the administration or re*
ception of sacred things or spiritual benefits is forbid-
den.
These are the two main divisions mentioned in can.
2269.
§ 2. However, the subdivisions, as they may be called
and are expressly referred to in the following canons, may
just as well be added here.
c) A general personal interdict is one laid upon a
corporation as such, for instance, the entire (Catholic)
population of a realm, province, diocese, parish/ chapter,
or all the members of a religious community.
A general local interdict is one inflicted upon a place
comprising several distinct places or juridical entities, for
instance, a diocese, or province, or parish.
d) A special personal interdict is one imposed on
7 Can. 2269, 9 1. calls an inter- law a parish was never regarded u
diet laid upon a parish a general an autonomous entity,
interdict; in the old ecclesiastical
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
198 PENALTIES
specified persons, for instance, on the pastor of a parish,
or the administrator of a diocese.
A particular local interdict is one inflicted on a speci-
fied place, taking place {locus) in the stricter sense of
locality, for instance, a specially designated church
chapel, altar, or cemetery.8
AUTHORITIES WHO CAN INFLICT THE INTERDICT
Can. 2269
§1. Generale interdict urn tam locale in territorium
dioecesis, reipublicae, quam personale in populum
dioecesis, reipublicae, ferri tantum potest a Sede
Apostolica vcl de eius mandato; interdictum vcro
generale in paroeciam vel paroeciae populum, et par-
ticulare sive locale sive personale. etiam Kpiscopus
ferrc potest.
§2. Interdictum personale sequitur personas ubique;
locale non urget extra locum interdictum, sed in loco
interdicto omnes etiam exteri aut exempti, excluso
speciali privilegio, illud servare debent
1. A general local interdict which is imposed upon the
territory of a diocese or realm, and a general personal
interdict which affects the people of a diocese or realm,
can only be inflicted by the Apostolic Sec or by the latter's
commission.
2. A general interdict which is to affect either an entire
parish as such, or an entire congregation as such, or a
8 See Wernz, /. c, VI, p. 124, flexibility: but it does away with
n. 318; Hilarius a Sexten, /. c, the so-called interdictum dcambula-
p. 83; Hollwrck (/. c, p. 127, ft tnrium (c. 8, Clem. V, 8), which
52, note 3) calls the interdict the directly affected places, but virtually
most flexible of all censures; the the persons.
Code does not entirely abolish this
jle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
-
CANON 2269 199
particular local or special interdict, may also be inflicted
by the bishop.
Here the text appears to mention only an interdict ab
homine. But there are a few interdicts which are incurred
ipso iure 9 and therefore need only a declaratory sentence
(can. 2223, §4; can. 2232, §1).
The bishop, and not the Ordinary, is mentioned, be-
cause the vicar-general cannot inflict such a penalty with-
out a special mandate (can. 2220, §2). The zncar
capitular or administrator, on the other hand, cannot be
denied the right to place a parish under the interdict.10
Concerning the prelates regular of exempt religious,
Suarez11 justly observes that, although they may inflict a
personal interdict by right and custom, yet custom denies
them the right to impose a local interdict. For such a
penalty is neither an adequate means of good government
nor apt to edify the faithful.
The bishop may inflict an interdict without the cotusent
of his chapter or consultors 12 and is not bound to call in a
cdllegiate body of judges, if he proceeds in a judiciary
way.18 He may also impose it as a special order ; " always
provided that he does not overstep the power laid down
in can. 2269, §1.
The question may arise whether the bishop could lay
9 The Code contains: one gen- ref.; Wernx, /. c, p. 229. n. 230.
eral interdict modo sjeciali r«- 11 De Cens., disp. XXXVI, sect.
served to the Ap. See (can. 333a); 1, n. 3 {.ed. cit., Vol. 33, II, p.
one personal interdict contracted 253).
ipso iure, but not reserved (can. 12 C. 1, X, V, 31, calls for such
2338, 8 4); two personal interdicts a consent, but custom has done
ferendac sententiae, can. 3328, away with this requirement (Su-
*3$6> one d£> ingressu ecclesiae ores, /. c, n. 6); nor does the
ipso iure, reserved to the ordinary. Code require it
can. 3339; one incurred ipso iure is He may, but is not obliged to,
but not reserved, can. 2338, 8 82 entrust the judges with this affair;
one ferendae sententiae, can. 2339. can. 1576.
10 Trid,, Scsa. 34, c 16, de « Con. 1933, 8 4-
".
oogle
Y ,1,., Original fro m
UNIVERSITY OF WISCONSIN
200 PENALTIES
all the parishes of his dioceses, taken singly, under the
interdict. We think not, on the basis of the law ; at any
rate, it would be very imprudent.
§2 of can. 2269 indicates the material extent of the
interdict, personal and local, as follows :
I. A personal interdict follows the persons upon whom
it is inflicted everywhere, and since the text does not dis-
tinguish between general personal and special personal
interdicts, it is evident that both kinds are included, and
consequently all the effects described in can. 2274 and
2275 follow the persons interdicted.
2. A heal interdict binds only within, not outside, the
boundaries of the interdicted place. But within the inter-
dicted territory all, including strangers and exempt
persons, are obliged to observe it. A special privilege
alone exempts from its observance. The boundaries
must be strictly understood, and not, as some seem to
hold,10 as if an extension were permissible in order to
prevent contempt or neglect of the interdict.
Exteri or outsiders are obliged to observe an interdict
as long as they remain in the interdicted territory.
Exemption here means personal, not local, exemption.
Such exemption is granted by the Code to all regulars
and their novices, also to some religious in virtue of a
special privilege.1* All these exempt religious must
observe the local interdict,17 unless, of course, it be
particular, for instance, restricted to a church or chapel.
But if exemption is taken for icrritorium nullius, or
active and passive exemption, no matter whether it con-
cerns only one, or two, or several parishes, the local inter-
dict placed on a parish of another one's jurisdiction does
18 Thus Suarex, disp. XXXVI, 17 Sec cc. 4. n, 6', V, 7; Trid.,
iect. 2, n. 3. Sesa. 25, c. 12 dt Regg.
11 See can. 615; can. 618.
oogle
v ,|rt " riginal from
UNIVERSITY OF WISCONSIN
CANON 2270 201
not concern the exempt parish, even though this may lie
like an enclave within the boundaries of the interdicted
parish or territory. The jurisdiction, personal as well as
local, of the interdicting prelate ceases there.18
The text allows an exception based on a special
privilege, which means that only a directly granted
privilege avails against a local interdict. No communi-
cation of privileges, therefore, is admissible." Special
privilege also signifies that freedom from interdict is not
included in the general exemption.
EFFECTS OF AN INTERDICT
The effects of an interdict are separable from one
another, as appears from the various exceptions made
under certain conditions. The text first considers the
local general and particular interdict, then the personal
general and special interdict, and finally the effects of
any interdict on such as are innocent of the crime for
which the interdict was inflicted.
■
Q.
CONSEQUENCES OF LOCAL INTERDICTS
E
C
Can. 2270
§1. Interdictum locale sive generale sive particulare
non vetat morientibus Sacramenta et Sacramentalia,
servatis servandis, ministrare, sed prohibet in loco
quodlibet divinum officiurn vel sacrum riiurn, salvis
exceptionibus de quibus in §2 huius canonis et in can.
2271, 2272.
a
c
IS Suarcz takes a broader view l» See cc. 4, 11, 6*, V, 7;
(diap. XXXII, sect. 2, n. 1a); but Reiffcnetuel, V, 39, n. 196.
certainly not to the advantage of
juridical precision.
>gle
Original fro m
UNIVERSITY OF WISCONSIN
202 PENALTIES
§2. In die Nativitatis Domini, Paschatis, Pente-
costes, sanctissimi Corporis Christi te Beatae Mariae
Virginis in caelum assumptae interdictum locale sus-
penditur, et prohibetur tantum collatio ordinum et
sollemnis nuptiarum benedictio.
D
Can. 2271
Si interdictum fuerit locale generale et interdict)
decreto aliud non caveatur expresse:
i°. Pcrmittitur clericis, dummodo non sint ipsi per-
sonalitcr interdicti, omnia divina officia et sacros ritus
in quacunque ecclesia aut oratorio privatim obire,
ianuis clausis, voce submissa et campanis non pulsatis;
2°. In ecclesia vero cathedrali, ecclesiis paroecialibus
vel in ecclesia quae unica sit in oppido, in iisque solis,
permittuntur unius Missae celebratio, asservatio
sanctissimi Sacramenti, administratio baptismatis,
Eucharistiae, poenitentiae, assistentia matrimoniis,
exclusa benedictione nuptiali, mortuorum exsequiae,
vetita tamen quavis sollemnitate, benedictio aquae
baptismalis et saciorum oleorum, praedicatio verb!
Dei. In his tamen sacris functionibus prohibetur
cantus et pompa in sacra supellectili et sonitus cam-
panarum, organorum, aliorumve instrumentorum
musicalium; sacrum autem Viaticum ad infirmos
privatim deferatur.
Can. 2272
§1. In interdicto locali particulari, si interdictum
fuerit altare vel sacellum alicuius ecclesiae, nullum
sacrum officium seu sacer ritus in eisdem celebretur.
§2. Si interdictum fuerit coemeterium, fidelium
Go >gle
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2270-2273 203
a
quideni cadavera sepcliri ibidem possum, sed sine ullo
ecclesiastico ritu.
§3. Si latum fuerit in certam ecclesiam vel ora-
tor i urn :
u
i°. Si ecclesia fuerit capitularis nee interdictum sit
Capitulum, valet praescriptum can. 2271, n. t, nisi
interdict! decretum praecipiat Missam conventualem
celebrari et horas canonicas recitari in alia ecclesia aut
oratorio;
20. Si fuerit paroecialis, servetur praescriptum cit.
can. 2271, n. 2, nisi interdict! decretum aliam ecclesiam
pro interdict! tempore eidem substituat.
Can. 2273
Interdicta civitate, interdicta quoque manent loca
accessoria etiam exempta et ipsa ecclesia cathedralis;
interdicta ecclesia, interdicta sunt sacella contigua,
non vero coemeterium; interdicto sacello, non est
interdicta integra ecclesia nee, interdicto coemeterio,
interdicta est ecclesia ipsi contigua, sed interdicta
sunt omnia oratoria in coemeterio erecta.
I. General Proiusbition. In a place laid either under a
general or a particular local interdict, no divine offices
or sacred rites may be performed. This is the general
rule, and the terms must be employed according to their
obvious meaning. Hence the celebration of Mass, the
reservation of the Blessed Sacrament, preaching, adminis-
tration of Sacraments or sacramentals or any ritual or
liturgical function such as burials, may not take place in
such places.20 This, we said, is the rule.
20 Here again the strictly litur- sequently private devotions, such as
gical devotions are intended; con- the Rosary or the Stations of the
>Ic
f~* ^ ^ -As* Original fro ni
UNIVERSITY OF WISCONSIN
204 PENALTIES
2. Now follow the modifications which affect any local
interdict, general or particular, and may therefore be
called general modifications, such as were granted by the
Decretals,21 and are partly extended by the Code :
a) It is permitted to administer the Sacraments and
sacrarnentals to the dying. This includes Extreme
Unction 22 as well as the Viaticum and the Last Blessing.
What servatis servandis means may be deduced from can.
2271, n. 2 : the Viaticum must be privately carried to the
sick according to can. 849. But the clause also hints at
the rubrics as found in the Roman Missal and Ritual28
b) On Christmas, Easter, Pentecost Corpus Christi,
and the Assumption (Aug. 15) the local interdict is sus-
pended, and only the conferring of orders and the
solemn nuptial blessing are forbidden. Hence solemn
service with all pomp and liturgical display may be
celebrated, but only on these days themselves, not during
the octave.3* When Corpus Christi is transferred to a
Sunday, the Sunday is favored.
The particular modifications of a general local inter-
dict are stated in can. 2271, provided the wording of the
decree of interdict does not contain anything to the con-
trary, for the clergy in particular and for the faithful in
general,
1. The clergy may privately perform all the divine
Cross, confraternities, processions 2« Martin V, "Inrffabile," May
led by laymen, are allowed; for the 26, 1429, 5 3* extended the privilege
terra "divina officio." (can. 3256, n. to Corpus Christi; this is upheld by
2) does not include these. the Code. But the extension to the
21 Especially by the well-known Octave of Corpus Christi granted
tafut "Alma," c. 34, 6s, V, 11; by Eugene IV ("ExctllenHssimum,"
see c. 5, X, V, 38. May 26, 1433) " not according to
22 Reiffenstuel, V, 39. n. 203. the Code, which says "in die."
23 Missal e Rom., tit. De Deftcti- Whether the Spaniards still enjoy
bus, c. VIII, n. s; Rit. Rom., tit. this favor on the feast of the
IV, c. 4, n. 6 f. Immac. Conception seemi doubtful.
§le
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2270-227$ 205
a
offices and sacred rites in any church or chapel.2* But
this general permission is conditional, and also circum-
scribed as to the manner in which these functions may
be held.
a) The condition in the strict sense is that the clerics
themselves be not personally interdicted, for if they were,
can. 2275 would take effect.
b) The manner in which this service may be performed
is described as follows: It is a private celebration, from
which the faithful must be excluded.26 It must be
held januis clausis, f. e., behind closed doors, which
indicates that the clergy only may be admitted. However,
if the priest would have no cleric to serve his Mass, a
layman could and should be admitted.
It must be held voce submissa, i. e., in a low voice, so
that it can not be heard outside the church.27
It must finally be held without the bells being rung
(campanis non pulsatis). However, canonists except
from this prohibition the ringing of the Angelus bell and
the bell for sermons.29
It may be added that this prerogative is granted to the
clerical state, as such, whence it logically follows that
every clergyman may hold such services. Rut mere
assistance without cooperation could hardly be admitted.
For the text clearly states obWe, which signifies active
service.
2. For the faithful in general the text grants the follow-
ing mitigation under certain conditions :
a) The privileged churches are the cathedral and the
parish churches, even though there may be several in one
SS Cfr. c. a*. 6% V, 11. 37 Suarex, ib., n. 13 f.
xa Whether or not excommunicated 28 C. xi, X, V, 38. Suarez, /. A,
or interdicted; Suarez, disp. n. 16 f.
XXXIV, sect 1, n. ai f.
oogle
, ,1,, Original from
UNIVERSITY OF WISCONSIN
206 PENALTIES
city or town, and the church which is the only one in a
tozvn. In this latter clause a public oratory, which enjoys
all the rights of a church,29 is included among the privi-
leged churches. Town may be taken in the sense of civil
division, nor is any certain distance from one to another
-
here indicated. The same cannot be said of semi-public
and private oratories, which are therefore excluded from
this prerogative, especially since the text adds : " in iisqtte
solis, " and this favor is intended for all the faithful, not
for a privileged class only.80
b) The divine or sacred functions permitted are: the
celebration of one Mass daily, under the restrictions
mentioned below ; the reservation of the Blessed Sacra-
D
ment; the administration of Baptism with all its cere-
monies and with sponsors; the administration of the holy
Eucharist and of Penance; assistance at marriage, but
without the nuptial blessing (which prohibition seems to
exclude both blessings, that of the Ritual as well as that
of the Missal) ; burial of the faithful, but excluding every
solemnity, •. e., external pomp of any kind ; 81 blessing of
the baptismal water and the holy oils; preaching the
word of God.
c) The restrictions governing all these sacred functions
are: no chanting is allowed, no display of sacra sttpcllex
(although, of course, the liturgical colors must be
used), no ringing of bells, no playing of organs or
other musical instruments; and the holy Viaticum must
be brought to the sick privately, as is customary in our
country. Hence only a low Mass is permitted, without
sacred ministers, and without benediction of the Blessed
-
BO Sec can. 1191, S i- say. therefore, that private (sic!)
80 This text corrects the old law oratories are included in this preroj-
of c. 24, 6", V, it; what Suarez, ative, is no longer tenable.
CI. f.. n. 5 f.) and others, r. g., 81 See can. 1204.
HDarius a Sexten (/. c, p. 88)
ogle
£ * ^ .. ,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 2270-2273 207
Sacrament The exequies are to be performed in church
according to the rubrics, but without the "Libera," and
also without a funeral sermon.
The effects of a particular local interdict are enumerated
as follows:
1. If an altar or cfiapcl in a church has been interdicted,
no sacred office or rite may be performed there ; from this
rule no exception is allowed, not even in favor of non-
liturgical devotions, for the text is not restricted to divine
offices.8*
2. If a cemetery is interdicted, the bodies of the faith-
ful may be buried there, but without any ecclesiastical
rites ; these rites may, however, be supplied after the inter-
dict is raised.
3. If a specified church or oratory is interdicted, it
makes a difference whether the sacred edifice is a conven-
tual (capitular) or parochial one.
a) If the church belongs to a chapter, for instance,
of canons or regulars who really form a chapter, ccclcsi-
astical corporation, or convent," the chapter may make
use of the favor granted under can. 2271, n. i, concerning
the clergy, provided, however, (i.°) that the chapter is
not under a personal interdict, and (2.0) that the text of
the interdict does not order the conventual Mass to be eel-
ebrated and the canonical hours to be recited in another
church or oratory.
b) If the church is a parochial one, canon 2271, n. 2,
82 A reasonable doubt as to our ss The meaning is: those churches
statement is likely to arise from the which form a chapter or con-
word sacer (tituj) which, if taken ^cnt with the obligation of a con-
to mean liturgical, would not ex- ventual Mass and choir service;
elude private or non -liturgical devc- see can. 610, 9 i, a, wherefore
tions; yet we are inclined to take convents of Sisters who have no
it in the wider sense of any tacrtd such obligation can not claim the
function. privilege here granted.
"-.
jle
£ " ^ ^ ,L» Original fro m
UNIVERSITY OF WISCONSIN
ao8 PENALTIES
with all its favors and restrictions must be applied, unless
the interdict expressly provides that another church is to
be substituted for the one interdicted.
The material extent of local interdicts is explained in
can. 2273 as follows :
I. If a city is laid under the interdict, the accessory or
contributory places also are interdicted, including exempt
places and the cathedral. This appears to be a rather
wide interpretation and was expressly acknowledged as
such by the Decretals,8* where the reason is stated; vis.,
that interdicts be not vilified or contemned.
However, it may be justly doubted (we at least can-
not read into the Decretal as much as others do) "
whether this provision can be stretched to cover two
different territories with different prelates. For instance,
take Kansas City, Mo., and Kansas City, Kansas, or
Brooklyn and New York, between which the river forms
a line of demarkation dividing the two dioceses. Hence
we suppose that the accessory premises or suburbs must
belong to the same diocese. Thereby we do not, of
course, mean to deny that the Apostolic See could form-
ulate an interdict so as to include the accessories of a city
situated in another diocese.
HI
Exempt religious are included and must observe the
interdict even if they live in the suburbs, unless they
enjoy a special privilege. The cathedral is especially
mentioned, because some audiors, by reason of a
Decretal,33 exempt it from interdicts.
2. If a church is interdicted, the adjoining chapels also
84 C 17, 6% V, II. 80 C. 4. 6°. HI, 4. which, how-
QB Thus Suarcx, /. c, diap. ever, as Suarcz justly observes
XXXJI, sect, a, n. 23 f.; but the cc. </. c, n. aa), only speaks of bene-
17, 6°, V, II would not justify the fices, not of favors granted to
assumption of Suarez. churches.
§le
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2274-2275 209
are interdicted, but not the cemetery, even though
adjoining.87 The term contigua must be taken in its
obvious sense, *. e., bordering on or touching the church
with which they form one whole, even though perhaps
a little space is left between them.
3. If a chapel is interdicted, the whole church is not
interdicted, whether this chapel be in the church or
adjoining it; for there may be a special reason for inter-
dicting the chapel, and besides, no inference may be
drawn from the minor to the major, from the accessory
to the principal; accessorium sequitur principale, but not
vice versa.
4. If a cemetery is interdicted, the adjoining church is
not interdicted, even though it belongs to the cemetery;
but all oratories erected on the cemetery are included.
We conclude with a remark concerning local interdicts.
Canon 2271 mentions three conditions for the lawful use
of the favors granted during the time of an interdict;
but it omits to add another condition : m excommunicatis
et interdictis exclusis" which occurs in the old law.88
Hence it may safely be concluded that there is no obli-
gation positively to exclude the excommunicated and
interdicted, except in case of can. 2259, §2 and can. 2275,
n. 1. However, the clergy should take care that the inter-
dict is not violated through their cooperation.
EFFECTS OF A PERSONAL INTERDICT
Can. 2274
§1. Si communitas seu collegium delictum per-
petraverit, interdictum ferri potest vel in singulas
07 Corrects c. ij, 6% V, II. 08 Sec c. 35, X, V, 33; c. *4, 6°.
V, II.
►ogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
Q
Q
-"■
2io PENALTIES
personas delinqucntes, vel in communitatem, uti talem,
vel in personas delinquentes et in communitatem.
§2. Si primum, servetur praescriptum can, 2275.
§3. Si alterum, communitas seu collegium nequit ius
ullum spirituale exercere quod ei competat.
§4. Si tertium, effectus cumulantur.
Can. 2275
Personaliter interdict*:
i°. Nequeunt divina officia celebrare eisve, excepta
praedicatione verbi Dei, assistere; passive assistcntes
non est necesse ut expellantur ; sed ab assistentia
activa, quae aliquam secumferat participationem in
divinis officiis celebrandisf repellantur interdicti post
latam sententiam condemnatoriam vel declaratoriam,
aut alioquin notorie interdicti ;
20. Prohibentur Sacramenta et Sacrament alia rnini-
strare, conficere et recipere, ad norman can. 2260, §1,
2261.
30. Fraescripto can. 2265 etiam ipsi adstringimtur ;
40. C a rent scpultura ecclesiastica ad norm am can.
2240, §i, n. a.
1°. It is evident that these two canons are related to
each other, as both are concerned with the personal inter-
dict Since a personal interdict may be either general or
special, can. 2274 considers the possible distinction be-
tween them, which is based upon the assumption that a
personal interdict may be placed upon a body as such, or
upon single members of that body. In the first case a
censure can hardly be assumed ; 80 whilst a special per-
is Hilariui s Sexten, I. c.M p. 83, according to D'Annibale, I, n. 370-
Go >gle
f ■ j % Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2274-2275 2IX
sonal interdict in case of doubt, must be presumed to be
a censure as per can. 2255, §2.
Contmunitas is a society less compactly organized, for
instance, a parish, diocese, province.
Collegium is a more closely organized society or a
corporation in the ecclesiastical and civil sense, as we say :
ires faciunt collegium. Such are the cathedral and
collegiate and monastio chapters, provided they have
their own constitutions and enjoy autonomy (societas
imperfecta). As stated above, modern laws presume that
such communities and corporations are capable of com-
mitting a crime collectively, because they have a collective
will. Consequently, they can also be punished collectively,
and this is the fundamental supposition of an interdict.
The text says: i.° An interdict may be placed upon
single persons or members of a community or college
which is found guilty of a punishable crime, and in this
case the effects enumerated in can. 2275 follow. This is
a special personal interdict.
2.0 An interdict may be inflicted on a community or
corporation as such, i. e., as a community or corporation,
and in this case the community cannot exercise any
spiritual right that belongs to it as a corporation or com-
munity. These rights are the capitular, collegiate, or
corporate rights, in as far as they are spiritual, such as the
right of election,40 postulation, nomination, presentation,
etc. Thus a chapter of canons who could otherwise elect
the bishop or a vicar capitular/1 is deprived of this right
when under an interdict, provided a declaratory or con-
demnatory sentence has been issued.'" The same is true
40 Cfr. c. 16, X, I, 6; can. 161; Biahopa are not included in an
can. 167. interdict, cither local or personal;
41 See can. 432. see can. 2227, 5 2; c. 4, 6", V, II.
42 See can. 167. S 1, n. 3-
>Ie
j , Original from
UNIVERSITY OF WISCONSIN
212 PENALTIES
of a monastic chapter and a religious community.
Neither could a parish choose its pastor, if this right
belonged to the congregation according to can. 465.
Concerning our consultors, who ought to form some
species of collegiate body, they scarcely have any truly
spiritual rights, except that of electing the administrator,
which would here certainly be concerned." A collegiate
body of judges who actually form a college according to
can. 1576, is also included here.
3.0 If the interdict has been imposed on individual
delinquents and at the same time on the whole com-
munity, its effects are bulked, i. e., the interdict produces
a double effect — one affecting the community as such, vis.,
privation of all corporate spiritual rights; the other affect-
ing those personally interdicted (can. 2275). All this,
of course, must be plainly expressed in the interdict itself,
otherwise it may be presumed that the interdict is laid
only upon the community as such (n. 2).
Those personally interdicted, i. e.f individual members
of a community or corporation, or others,44 if interdicted,
suffer the following penalties according to can. 2275 :
1. They are not allowed to celebrate or assist at divine
offices. Exception is made in favor of preaching, at
which they may assist. It is not necessary to expel such
personally interdicted persons from an assembly gathered
for divine service, provided they merely assist and take no
active part in the ceremony. On the other hand, such
as have been interdicted by a deckaratory or condemnatory
sentence, or are otherwise notoriously interdicted, must
he refused all active assistance, •'. e., participation or
cooperation in the celebration of the divine offices. From
a
48 See S. C. Cons., Feb. «, wo Com., May 8, igio (Etcl. Ret:,
(Eecl. Rev.. Vol. 60, p. 53a &)| for Vol. 6i, p. 165).
Canada and Nova Scolia, S. C. ** Cfr. can. -■;•>-". cwi. 2356.
►ogle
k ,| , Original from
UNIVERSITY OF WISCONSIN
CANON 2276 213
this text we may conclude that personally interdicted
individuals may be permitted, if necessary, to take some
part in the divine service, for instance, by serving at
Mass, as long as no declaratory sentence has been
pronounced or the fact of their being interdicted is not
notorious.40
2. They are forbidden to celebrate, administer, or
receive any Sacraments or sacramcntals according to can.
2260, §1, and can. 2261. Thus the faculties for hearing
confessions are lost by an interdict after a declaratory or
condemnatory sentence;481 also the right of assisting at
marriages/
Irregularity follows a violation of this law, according
to can. 985, n. 7 ; the reception of orders at the hands of
an interdicted bishop is punishable by suspension.47
3. Rights denied to excommunicated persons are also
denied to interdicted persons to the extent stated in
can, 2265.
4. Those under a personal interdict lose the right to a
Christian burial, as explained in can. 1240, §i, n. 2.
No mention is made of actus iegitimi, except as far as
can. 2265 falls under that heading. Consequently other
legal acts may be validly and licitly performed by one
who is personally interdicted.
MITIGATION FOR THE PERSONALLY INNOCENT
Can. 2276
Qui interdicto locali vel interdicto in cornmunitatem
seu collegium subest, guin eidem causam dederit, nee
45 For instance, they are not « Can. 1095, |l, n. 1.
known as the leaders of a faction 47 Can. 3373; cfr. can. 3338, | 3;
against the Ordinary. 3364.
4*-Cau. 873, I 3; Can. 1095, I
l, n. 1,
GoogI
Original fro ni
UNIVERSITY OF WISCONSIN
214 PENALTIES
alia censura prohibeatur, potest, si sit rite dispositus,
Sacramenta recipere, ad normam canonum praeceden-
tium, sine absolutione ab interdicto alia ve satisfactione.
a
Those who are laid under a local or personal interdict
that concerns a community or corporation, but have not
been the cause of that interdict, and are not otherwise
censured, may receive the Sacraments according to the
rules laid down in the preceding canons, provided they
are properly disposed.
This favor is granted without any other satisfaction,
and no absolution is required.
The term " causatn dedcrit " 4S may give rise to doubts.
Who causes an interdict, either local or personal?
Suarez * justly observes that the culprit or delinquent
must, in one way or another, be intimately connected with
the place or community, so as to possess, rule or influence
it. The pastor of a parish, or town, or city, is held re-
sponsible for the actions of his subjects; also kings and
magistrates, especially in former days, were looked upon
as responsible for the crimes committed in their respective
territories. Concerning a community or corporation, a
decision of a chapter would throw the burden on the
whole body, because apparently approved by all. Here,
then, the ringleaders would undoubtedly be those who
provoked the interdict. That innocent persons some-
times suffer cannot be avoided, since the interdict is
intended not so much as a punishment, but as a defence
of the authority of the Church.
■
9
«8 C. 34. 6°, V, ix. 40 De Cent,, diap. XXXVI, sect.
1-
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2277 215
o
a
THE INTERDICT FORBIDDING ONE TO ENTER A CHURCH
Q
a
Can. 2277
■
Interdictum ab ingressu ecclesiae secumfert pro-
hibitioncm ne quis in ecclesia divina officia celebret vel
eisdem assistat aut ecclesiasticam scpulturam habeat;
si autem assistat, non est necesse ut expellatur, nee, si
scpeliatur. oportet ut cadaver amoveatur.
s
As a species of personal 60 interdict is here mentioned
that ab ingressu ecclesiae, " which occurs in the
Decretals.81 It may be inflicted upon laymen as well as
clerics. Its effects are stated as follows:
1. Those so interdicted are forbidden to celebrate the
d'wine offices in any church, even though it be not an
interdicted church;
2. They are forbidden to assist at such offices, either
passively or actively.
3. Ecclesiastical burial is denied them, ». e., they must
be buried without solemnity and without the ecclesias-
tical rites which are performed in church. For no doubt
the burial here intended is that in the church, according
to can. 1205, §2, 1. e.t of civil and ecclesiastical princes
and dignitaries, among them abbots.
This interdict does not, however, require that the in-
terdicted person be expelled from a church where divine
offices are being celebrated, or that these functions be in-
terrupted or suspended on account of his presence.
Neither does this interdict call for an exhumation of the
■
corpse if such a person should have been buried in the
church, either by fraud, violence, or ignorance.
D
.".0 Thus Suarcx, /. c, diap. XXXV, 12, X, V, 38, concerning annual
•cct. 44, n. 3. confession and Paschal Communion.
M See tlic "multum atlcgabile," c.
oogle
, .,1,., Original fro m
UNIVERSITY OF WISCONSIN
"■
216 PENALTIES
Art. Ill
SUSPENSION OR CLERICAL CENSURE
Suspension is a mitigation of the ancient penalty of
deposition and degradation, which occurs as early as the
third century.1 Its fuller development, however, com-
menced in the fourth century, which witnessed quite a
change in public discipline, including the application of
penalties to clerical offenders; removal from office, but
not from the clerical ranks ; privation of certain spiritual 2
and material rights; ineligibility for higher offices, whilst
the bishops were denied intercourse with their fellow
bishops.8 When, in the sixth and later centuries, bene-
fices were introduced and multiplied, it was natural
that the revenues should play a conspicuous part as means
of reaching delinquent clerics. Hence towards the end of
the Xllth century we find a suspension from benefices
beside and distinct from suspension from the exercise of
orders and offices.* This is the status of suspension in
the Decretals, to which the Council of Trent only added
the suspension ex infonnata conscientia* The Code has
not simplified suspension.
Yet some progress is noticeable, especially as far as
precision of terms and definition of the effects of different
kinds of suspension are concerned.
l See Koher, Die Suspension der months; Syn. Auret. Ill, c 6, 18.
Kirchcndiener, i86a, p. 19 ff . ; * Syn. Aurel. Ill, c. 6 (I. e.,):
Hmschius, K.R., IV, 747 **•; " «* "** omnium frotrum caritate."
ordine deporitus"; Syn. Aurel HI, < See c a, X, II, jo; c. 7, X,
c. 10. V. 10; c. 7. X. I. 6.
2 For instance, prohibition to say 1 Seat. 14, c. iF de ref.; Bee can.
Mom for a certain time, v. g., aix >i8£.
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2278 217
a
r.
r.
-■
NATURE AND DISTINCTION
a
IK
Can. 2278
§1. Suspensio est censura qua clericus officio vel
beneficio vel utroque prohibetur.
§2. Etiam suspensionis eff ectus separari queunt ; seel
nisi aliud constet, in suspensione generaliter lata com-
prehenduntur omnes effectus qui in canonibus huius
articuli enumerantur; contra, in suspensione ab officio
vel a beneficio omnes tantum effectus alterutriua
speciei.
P
1. Suspension is a censure by which a cleric is forbidden
to exercise the rights attached to his office or benefice, or
both.
In as far as it is a censure, suspension must bear the
marks and conditions of censures in general.
Suspension differs from excommunication in this that
it concerns clerics only, and its effects are separable in
various degrees. Suspension differs from an interdict
in that its effects are strictly limited to clerical rights,
leaving the spiritual benefits common to all Christians,
such as ecclesiastical burial, untouched.
2. Since the effects of suspension are separable, it is
evident that they follow the various kinds of suspension
in varying degrees.
a) A general suspension deprives a cleric of all the
rights pertaining to his office as well as his benefice;
and if the suspension is not further determined in the
decree or precept of the superior or judge,8 a general
SAi a censure it may be inflicted on provisional suspension, see can.
by a judiciary sentence or in virtue aaaa, ft 2.
of a ipecial precept; see 1933, | 4;
.'le
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
218 PENALTIES
a
suspension is to be understood, i, e., one accompanied by
all the effects stated in this article.
c) A special suspension is twofold: from office or from
benefice. The special suspension from office may be
either total or partial, according as all the rights attached
to the office, or some only, are taken away. The special
suspension from benefice, too, may be total or partial,
since the administration of the benefice may be taken
away or only its revenues.
The distinction of latae and ferendae sentcntiae also
applies to suspension. But the distinction between a
suspensus vitandus and toleratus has no foundation in the
Code.
EFFECTS OF SUSPENSION
Can. 2279
§1. Suspensio ab officio simpliciter, nulla adiecta
limitatione, vetat orr.nem actum turn potestatis ordinis
et iurisdictionis, turn etiam mcrae administrationis ex
officio competentis, excepta administratione bonorum
proprii beneficii.
§2. Suspensio:
i.° A iurisdictione generating vetat omnem actum
potestatis iurisdictionis pro utroque foro tarn ordi-
nariae quam delegatae ;
o
2.0 A divinis, omnem actum potestatis ordinis quam
quis sive per sacram ordinationem sive per privilegium
obtinet ;
3.0 Ab ordinibus, omnem actum potestatis ordinis
receptae per ordinationem;
4.0 A sac r is ordinibus, omnem actum potestatis
ordinis receptae per ordinationem in sacris;
oogl
Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 2279-2280 219
5.0 A certo et definito ordine exercendo, omnem
actum ordinis designati; suspensus autem prohibetur
insuper eundem ordinem conferre et superiorem re-
cipere rcceptumque post suspensionem exercere;
6.° A certo et definito ordine conferendo, ipsum
ordinem conferre, non vero inferiorem nee superiorem ;
7.0 A certo et definito ministerio, ex. gr„ audiendi
confessiones, vel officio, ex. gr., cum cura animarum,
omnem actum eiusdem ministerii vel officii ;
8.° Ab ordine pontifical!, omnem actum potestatis
ordinis episcopalis;
9. A pontifical ibus, cxercitium actuum pontifica-
lium, ad normam can. 337, §2.
Can. 2280
§1. Suspensio a beneficio privat fructibus beneficii,
excepta habitatione in aedibus beneficialibus, non
autem hire administrandi bona beneficialia, nisi decre-
tum vel sententia suspensionis ipsam administrandi
potestatem suspenso expresse adimat et alii tribuat.
§2. Si, quamvis censura obstet, beneficiarius fructus
pcrcipiat, fructus rcstituere debet et ad hanc restitu-
tionem cogi potest canonicis quoque, si opus sit,
sanctionibus,
A suspension may be inflicted on individual clerics or
on a body of clerics as a corporation.
1. The effects of special suspension from office are
mentioned in can. 2279, §1. It is evident from can. 145
that office is to be taken in the strict sense, i. c., for a
charge, either divinely or ecclesiastically established, con-
veying some of the power of order or jurisdiction, —
supposing, of course, the clerical character, at least the
G] Original from
OOglt UNIVERSITY QFWI5C0NSIN
-
■
pi
220 PENALTIES
tonsure. All temporal rights, such as administration, are
included only in so far as they are strictly connected with
the spiritual office.
If, therefore, suspension from office is inflicted without
any further restriction,7 it forbids the exercise of any cut
of the power of order or jurisdiction, and of mere
administration attached to the office itself. But the ad-
ministration of one's benefice is not withdrawn. Besides,
it should be noted that the office itself is not lost, for the
effect touches only the exercise of rights. Consequently,
a suspended priest cannot lawfully say Mass, or
administer the Sacraments, except as far as canons 2284
and 2261 permit (of which see below). Neither can a
suspended prelate grant indulgences or inflict censures,
under the same restriction (*. e.t can. 2284), for these are
acts of jurisdiction.
As to acts of administration accruing to the office it-
self, such are mentioned under can. 262; 691, §1; 1489;
1520 f. Thus the administrators and rectors of pious
associations, provided they are clergymen, lose the right
of administration if suspended. Exception is made of
the administration of one's own benefice, which means
that a pastor may retain control of the revenues of his
benefice. But if suspended, he could not administer the
benefice of another pastor. Assistance at marriage is
invalid only after a declaratory or condemnatory sen-
tence,8 or according to can. 2284.
Since, however, a suspension from oMcc may be only
partial, — which fact should be duly stated in the decree
or sentence, — the Code distinguishes various degrees or
cases of suspension from office.
7 For instance, if the bishop the addrcaaed cleric holds is meant,
■hould say: "I hereby suspend you 8 See can. 1095. 8 '■ n. x.
from your office," the office which
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 2279-2280 221
£
1. Suspension from jurisdiction (a iurisdictione ) , in
general, forbids the exercise of every act of ordinary
as well as delegated power of jurisdiction in the external
and internal forum; hence every grant of faculties or
indulgences made by a superior thus suspended is
forbidden, nay, may even be invalid, according to can.
2284, also every exercise of judiciary or administrative
power and every act of preaching or teaching is
forbidden ; and from the moment the suspension takes
effect every' delegation is ineffective.0
2. Suspension a divinis forbids every act of the power
of order ivhich one may have received in virtue either of
sacred ordination or of a privilege. Hence all acts based
upon the power of order are forbidden, e. g., the
administration of Sacraments and sacramentals, the
celebration of holy Mass, and all the acts of order which
one may exercise in virtue of a special indult or privilege,
such as conferring minor orders, confirmation, con-
secration or blessings.10
3. Suspension from orders (ab ordinibus) forbids every
act of the power of orders received by ordination. Con-
sequently this more general prohibition includes what
is specifically stated under n. 4. But powers granted by
privilege or indult, e. g., that of conferring minor orders,
are not included in this prohibition,
4. Suspension from sacred orders (a sacris ordinibus)
forbids every act of the power of sacred or higher
orders, i. e.f from subdeaconship onward (can. 949).
5. Suspension from exercising a certain specified order
(a certo et dcHnito ordine exercendo) forbids only the
exercise of that order. But the cleric thus suspended is
n Attention should, however, be " Set can. 951; can. 78a; can.
called to can. 209. 1147. S 1;— but no privilege is in-
volved in can. 964.
oogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
222 PENALTIES
not allowed to confer or to receive a higher order, nor to
exercise a higher order after suspension. Thus a priest
suspended from the priesthood may not say Mass or
impart the blessings reserved to priests, but he may
impart the blessings which deacons can give. This is
also true of blessings which he may impart by a special
2
mdult.11 Thus a priest under such a suspension may
lawfully distribute holy Communion, since deacons may
perform this function ; he may also confer Baptism, but
not solemnly.12 But a priest thus suspended may not
licitly be promoted to the episcopate, or, if promoted, ex-
ercise episcopal functions. A bishop suspended from the
exercise of the episcopal order cannot licitly consecrate
a bishop. But a bishop suspended from the priestly
order may exercise and confer all orders, with the sole
exception of the sacerdotal order.
6. Suspension from conferring a certain and specified
order (a certo et dcfinito ordinc confercndo) forbids
administering only that order and none other, either
higher or lower.
y. Suspension from a certain and specified ministry or
office (a certo et definito ministerio vel officio) forbids
the exercise of acts attached to that specific ministry or
office. Thus if a confessor, teacher, or preacher is sus-
pended, it means that he cannot hear confessions, or teach
in an ecclesiastical capacity, or preach the word of God.13
If a chancellor is suspended, it signifies that he cannot ex-
ercise these offices as long as the suspension lasts; ,4 if a
priest is suspended from the care of souls, every act con-
li Can. 1 147, n. i, 2-4. For the 12 Can. 74a, 5 2.
necessary order i* not loit. neither iflSee can. 2317.
is the indult taken away by aus- it Sec can. 373, S 5.
pension of n. 5.
v ,|,, Original from
UNIVERSITY OF WISCONSIN
>gle
CANON 2279-2280 223
nected with that office is forbidden, such as hearing con-
fessions, visiting the sick, etc.15
8. Suspension ab ordine pontificali forbids the exercise
of acts belonging to the episcopal order, e. g., the confer-
ring of orders, Confirmation, the consecration of churches
or altars, etc.10
9. Suspension a pontificalibus forbids the exercise of
pontifical acts for which mitre and crozier are required
according to the liturgical laws ; for these two emblems
always go together.17 Is this suspension identical with
the preceding one? It would seem that if all acts proper
to the episcopal order are comprised by the name pon-
tificals, as Thesaurus and Benedict XIV expressly state,18
the difference seems to be very slight. Thus Thesaurus
says: Among these acts are enumerated: the conferring
of orders,10 the consecration of sacred vessels, churches,
virgins, and chrism, Confirmation, blessing of vestments
and corporals, sacerdotal acts usually performed with
mitre and crozier; also the conferring of the tonsure.
Some of these acts belong strictly to the episcopal order,
vis. : the conferring of holy orders, Confirmation and con-
secration. How, then, is n. 8 to be distinguished from
n. 9? Reference to can. 337, §2 does not solve the dif-
ficulty. To us it seems that by acts of the episcopal
order are understood all acts which require, at least per
se, the episcopal character ; whilst the term " pontificals M
includes purely ceremonial functions, or, as Thesaurus
says, the priestly acts performed with mitre and crozier.
is See can. 462, 464, 892. Ud. cit„ p. 180); Bened. XIV,
10 See can. 051; 782. E 1; H47. "Ad audientam," Feb. 15, 1753.
I 1. IS.
IT CatrrmoniaU Epixeof., 1. I, c. i» Bcned. XIV, ;. c, distinctly
17, nn. 4, 8. adds: also of minor orders.
ia De Poenis Eccl., P. 11, c. 5
gte
£ " -^ ^ -»] » Original from
UNIVERSITY OF WISCONSIN
224 PENALTIES
If this should be too restrictive, it may also be said, with-
out doing violence to the text, that n. 9 comprises all acts
performed with mitre and crozier, and therefore is more
comprehensive than n. 8. The former interpretation ap-
pears more probable because it clearly distinguishes
the two suspensions and minimizes the penalty.90
10. Suspension from benefice is the subject of can.
2280. By benefice is understood a juridical entity
established by competent authority, consisting of an
office and the right to receive the revenues attached to the
same. As insinuated elsewhere.31 there mav be a doubt as
to our country and other countries where benefices in the
sense attached to that term before the promulgation of the
Code are almost unknown. However, it appears that the
wider range of endowment and the less strictly defined
subjective perpetuity of beneficiaries clearly perceptible in
the Code render it necessary to apply the term benefice
to our parishes, as our pastors actually hold canonical
parishes in the sense of the Code. Besides, there can
hardly be any doubt that, even in our country, the income
or salary of the pastor can be really distinguished from
the office he holds. This suffices to assume that the term
fructus beneficii comprises all the revenues accruing
from an office which one holds. Consequently, sus-
pension from benefice is applicable also to our country
a
and other countries similarly situated.
The effect of suspension from benefice consists in pri-
vatioft of the fruits or revenues of the benefice. By this
name (fructus beneficii) is understood all the material
SO There is only one difficulty: although we really doubt it, because
Are abbots, if suspended a pontifical the two emblems are. according to
libus, allowed to confer tonsure and the Pont. Rom., required) and abbots
minor orders on their own subjects? do not possess Ihc episcopal order.
The answer should be affirmative; 21 See Vol. VI, can- 1411.
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
—
a
N
■
CANON 2279-2280 225
or temporal income derived from the benefice, whether
in specie or natural offerings, tithes, interest, produce,
etc. Not included in these are manual Mass stipends,
(to some extent) daily distributions,22 much less patri-
monial and quasi-patrimonial possessions, revenues which
were due at the moment the suspension was incurred,
pensions, government subsidies.
Our Code exempts from these fruits :
a) the dwelling or living in the residence of the bene-
ficiary, t. e., the actual accupation of the parsonage for
the purpose of dwelling therein: this can in nowise be
taken away from the clergyman, even though he be sus-
pended by a declaratory or condemnatory sentence;
b) the right of administering the benefice, which
means that he can continue to perform all legal acts re-
quired for the lawful administration, improvement, and
safeguarding of his benefice.25 However, this right, says
the Code, may be taken away by a decree or sentence
and given to another. But the decree or sentence must
expressly state this fact. If the suspended cleric him-
self administers the benefice, he is entitled to an adequate
remuneration for his expenses and labor.24
§2 of can. 2280 obliges a cleric suspended from his
benefice to nuxke restitution of the fruits received during
the time of suspension. He ba° 'injustly acquired some-
thing to which he was not entitled.*8 Therefore, says the
text, if he should refuse to make restitution, he may be
compelled to do so by penal measures, even censures, if
?2 Cfr. can. 394 f.j but to some 23 The old law also took away
extent daily distributions may con- this right; cc 1, 16, 6«\ I, 6.
stitute a benefice as per can. 1410; 24 Cfr. Hilarius a Sexteo, /. c,
thus also stole fees (but not in p. 73.
our country, where the stole fees 25 Suare*, Da Cent., di*p.
are properly distinguished from XXVII. sect. 1, n. 7.
salary).
§le
/*.,., -J,-, Original fro ni
UNIVERSITY OF WISCONSIN
226 PENALTIES
necessary. It is evident that, since a benefice is con-
sidered to be a juridical entity, restitution must be made
to the very benefice or to the church to which it is
attached. Neither can a suspended cleric dispose of the
revenues at will. The obligation in conscience is re-
troactive up to the moment when the censure was
incurred, though with the benefit mentioned in can.
2232, §1.
Since suspension from a benefice is adequately dis-
tinguished from suspension from an office, it follows
that the acts forbidden to one suspended from office are
not the same as those forbidden in virtue of suspension
from a benefice. Consequently, not only the rights, but
also the duties, attached to the office remain intact, even
though the remuneration may fail. This punishment was
intended, that the delinquent may, by receding from con-
tumacy, obtain absolution and rehabilitation. But the
fruits lost during the time of suspension cannot be re-
claimed, unless the sentence has been declared invalid or
its unjustice becomes manifest afterwards.28
-
EXTENT OF SUSPENSION
Can. 2281
Suspensio generaliter lata vel suspensio ab officio
aut a benehcio amcit omnia officia aut beneficia, quae
clericus habet in dioecesi Superioris suspendentis, nisi
aliud appareat.
Can. 2282
Loci Orduiarius nequit clericiim suspendere a de-
terminato officio vel beneficio quod in aliena dioecesi
»6Suar«, I. ft, disp. XXVII, sect 2, n. 6; Wcraz, /. c, VI, n.
311, p. 220.
>Ic
^ ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
—
a
N
CANON 2281-2283 227
reperiatur; sed suspcnsio latae sententiae, iure com-
muni irrogata. afficit omnia officia vel beneficia in qua-
cunquc dioecesi possideantur.
Can. 2283
Quae de excommunicatione can. 2265 statuuntur,
etiam suspensioni sunt applicanda.
There is implied in the first two canons a distinction
which is common to all censures, vis.: a iure and ab
hornine, either ferendae or latae sententiae (see can.
2217). Besides this, another distinction is hinted at,
vis.; that between ins commune and ins particulars Both
may again be latae or ferendae sententiae. Thus a par-
ticular community may enact suspension ipso iure, 4. t.t
particulari; and the Ordinary, or judge, or religious
superior of an exempt organization may also inflict a
sentence of suspension (ab hotmne, ferendae sententiae).
The suspensions iure communi irrogatae are contained in
the Code, and besides these, no others of common law
are to be heeded (can. 6, n. 5). Thereby, of course,
the supreme legislator or a general council is not bound,
in the sense that they could not, iure communi, either de-
cree or inflict a suspension not contained in the Code.
The general principle, " Extra tcrritoriam jus dicenti
impune non paretur " 2T is applicable here, provided the
distinction between common and particular law be duly
noted.
i. A suspensioti that is generally worded and inflicted,
concerns all o%ces and benefices zvhich the cleric holds
in the diocese of the superior who inflicts the suspension
from office or benefice, unless the contrary is evident.
27 C. 2, 6°, I, a.
G 1 Original from
008IL UNIVERSITY OF WISCONSIN
PENALTIES
This general suspension does not apply outside the dipcese,
for it is supposed to be inflicted either by a particular law
or by the superior, ab hotnine. Consequently if one holds
an office or benefice in a strange diocese, the exercise of
that office or benefice would not be curtailed by such a
general suspension. The contrary intention would have to
be made known by the Ordinary of the strange diocese.28
2. A total suspension from office comprises all the
offices — but not the benefices — one holds in the diocese
of the superior who inflicts the suspension, unless the
contrary is apparent.
3. A total suspension from benefice extends to all the
benefices — but not to all the offices — one holds in the
diocese of the superior who suspends, unless, again, the
contrary intention of the superior is obvious.
4. The local Ordinary, according to can. 2282, cannot
suspend a clergyman front a specified office or benefice
that belongs to another diocese. For this suspension
supposes either a particular law or a sentence inflicted by
' the superior, the effect of which cannot be extended to
the territory where the jurisdiction of the suspending
superior ceases.20 The contrary opinion held by some
is, therefore, wrong.80
5. A suspension latae sententiae inflicted by common
law, iure Communi, affects all offices and benefices, no
matter in what diocese the suspended cleric may hold
them. Of course, this suspension is here supposed to
be general and total without restriction."
38 See c. 37. 6". I. 6: a suspension VII, n. 5<« *•; P- 'H ff.; Wernz, /.
of three years inflicted ipso iure, c. VI, n. ao8, p. 315.
yet binding only for the diocese for so This opinion was held by
which the compromissarii elected Suarei and Thesaurus, cfr. Wernz,
an indignus. not for the benefices /. c.
he held in a strange diocese. ai Ballerini-Palmicri, /. c; Weros
30 Ballcrini-Palmieri, /. c. Vol. /. e.
•■-.
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 2281-22S3 229
According to the common opinion of canonists, a
cleric suspended ab ordine is obliged to observe the
suspension everywhere, because suspension is a personal
penalty which the common law desires and demands to
see respected. az Since in the suspension ab ordine is
included the suspension ab officio or a divinis, it follows
that a cleric suspended from office, or a divinis, even
though suspended only ab komine, or by a particular
law, cannot exercise his order anywhere. Consequently,
can. 2280, as stated above, must be understood as
follows: The suspension ab officio inflicted by a dio-
cesan superior must be observed in the diocese and
elsewhere, and the suspension ab ordine is implicitly
included in the suspension ab officio. Otherwise we
should have to give up the teaching of the school, stated
above, that suspension ab o dine obliges everywhere, and
simply state that suspension, unless decreed or inflicted
by common law, is merely local, i. e., diocesan.
It may be asked : How can one suspended ab officio
in diocese A, and holding an office in diocese B, where
he is not suspended, exercise his- office in diocese B,
since the exercise of the power of order is taken away
from him by his superior? The answer is that the
effects are separable, and therefore jurisdiction is not
taken away in diocese B. Besides, what one cannot do
by himself, he may do through a substitute, and a
benefice is not affected by suspension from office.
Can. 2283, perhaps too briefly, applies the effects of
excommunication also to suspension. The suspended
cleric loses the active and passive voice and cannot be
promoted to orders, as stated in can. 2265 with regard to
excommunication. This is quite clear. But not so
32 BaJlerini-Palmieri, /. c, n. 50a, p. 28s.
G Original from
OOglt UNIVERSITY 0FWI5C0NSIN
23Q PENALTIES
St
evident is the answer to the question whether the legis-
lator means to attach these effects only to general sus-
pension. Ancient " as well as modern commentators dis-
agree on this point. A modern writer says : " Some
canonists held, against the common opinion, that these
effects are produced only by general suspensions from
benefice; but the present law does not distinguish, and
assimilates suspended clerics to excommunicated ones in
this matter." 8* Therefore, according to this author, the
effects enumerated in can. 2265 follow each and every
kind of suspension, because the law does not distinguish.
But this reasoning is not exactly to the point. For can.
2278, §2 does distinguish between various suspensions,
and only to the suspensio generaliter lata must be applied
all the effects enumerated in article III, ch. II, title VIII
of this fifth book. Hence the argument ex sticntio proves
nothing in this matter. There is also an essential dis-
tinction between excommunication and suspension, be-
cause the effects of the former, unlike the effects of the
latter, are inseparable. Therefore, only a general sus-
pension can te assimilated to excommunication, but
never a special one, be it total or partial. Besides, since
penalties must be interpreted benignly and, if the text
is obscure, the least must be assumed,38 we cannot help
accepting the interpretation that general suspension only
is accompanied by the effects mentioned in can. 2265. A
a
last observation may confirm this statement. Can. 2265
commences with quilibct excommunicatus, every excom-
municated person. Analogously we should say in can.
33 Wem?, I c, VT, n. 309. p. a*6. 34 Ayrinhac, J. e., p. 140; V. Cap-
calls the opinion which holds that pcllo, /. c, p. 167 is silent; Eish-
fi-ety suspension produces the maim, /. c, p. 104, accepts, the view
effects mentioned in can. 2265, com- of Werni.
munior, although he himself does 85 See Reg. Juris 49, 3°> •" 6°-
not share it.
§le
£ * ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
■
pi
p
CANON 2284 231
2283: every suspended cleric — which would mean, con-
cretely speaking, that every cleric suspended ab ordine
pontificali, a pontifical ibus, or a divinis would also lose the
active and passive voice." This sounds untenable and
improbable, and consequently we hold that, in can. 2283,
only a general suspension is intended, i. e., one worded
and inflicted in general terms, comprising office and
benefice, to the exclusion of every special suspension,
either total or partial.37
MITIGATION OF THE EFFECTS
Can. 2284
Si incursa fuerit censura suspensions quae vetat
administrationem Sacramentorum et Sacramentalium,
servetur praescriptum can. 2261 ; si censura suspen-
sions quae prohibet actum iurisdictionis in foro seu
interne* seu externo, actus est invalidus, ex. gr., ab-
solutio sacramentalis, si lata sit sententia condem-
natoria vel declaratoria, aut Superior expresse declaret
se ipsam iurisdictionis potestatem revocare ; secus est
illicitus tantum, nisi a fidelibus petitus fuerit ad
normam mem. can. 2261, §2.
Here the modification stated in can. 2261 is ex-
tended to suspension.
I. If a suspension is incurred that forbids the adminis-
tration of Sacraments and sacramentais, as is the case in
suspensions ab officio and a divinis, the suspended cleric
so The loss of the active voice whether a general or special sua-
was not denied by Schmahgrueber; pension had been incurred; this u
V, tit. 39, n. 298. especially the case with c 8, X,
87 The texts quoted in Card. Gas- I. 4. We do not. however, deny
parri's edition for can. 2283 men- that the text apparently favor* the
tion suspension, but lcare it doubtful opinion rejected above.
>Ie
£ * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
232 PENALTIES
may lawfully administer them only in case he is
legitimately requested by the faithful; nor is he obliged in
this case to ask for the reason of the demand. This
favor, however, supposes that no condemnatory or de-
claratory sentence has been pronounced again3t him. For
after such a sentence the faithful could not lawfully
demand of him the administration of the Sacraments or
sacramentals, nor could he lawfully accede to the re-
quest, except in case of danger of death, when other
ministers were wanting.
2. When the suspension, e. g.t ab officio, a iurisdictione,
a definite et certo muiistcrio (audiendi confessiones)
forbids an act of jurisdiction either in the internal or ex-
ternal forum, the act performed under such censure is
invalid, if a condemnatory or declaratory sentence has
been pronounced or if the superior has expressly de-
clared that the power of jurisdiction is withdrawn; but if
no such sentence or such express declaration has been
made, the act of jurisdiction is valid, even though illicit.
Nay, it even becomes lawful if the minister has been
legitimately asked by the faithful. In danger of death
the act of jurisdiction which is exercised in the form of
sacramental absolution is valid and licit, even though
other priests or ministers are available (can. 2261).
SUSPENSION OF COMMUNITIES
Can. 2285
§1. Si cornmunitas seu collegium clericorum delictum
■
cominiscrit, suspensio ferri potest vcl in singulas per-
sonas delinquentes vel in communitatem, uti talem, vel
in personas delinquentes et communitatem.
§2. Si primum, serventur huius articuli canones.
jle
£ * ^ ^ ,l,» Original from
UNIVERSITY OF WISCONSIN
CANON 2285 233
§3. Si alteram, communitas prohibetur exercitio
iurium spiritualium quae ipsi, uti cornmunitati, com-
petunt
§4. Si tertium* effectus cumulantur.
History proves that a community may be suspended.88
That it is juridically possible follows from the fact that
a community, as such, may be guilty of crimes and, con-
sequently, liable to punishment. Special rights are
attached to corporate bodies and may be suspended for
a time. As a crime (for instance, appropriation or
embez2lement of church property or disobedience to
lawful authority) may be perpetrated by single members
of a community, as members, or by the community as
such (for instance, by a capitular decree), or by single
members and the community simultaneously, it follows
that a community or corporation can be suspended in
three different ways.
1. If single members of a community (also male re-
ligious39) are suspended, all the effects which that sus-
pension involves, follow, and therefore what has been
stated in connection with canons 2278-2284 must here be
applied.
2. If the community or corporation as such is sus-
pended, all its spiritual corporate rights, i. e.f spiritual
rights which the community as such enjoys, are sus-
pended. To this class belong especially the rights of
88 Cathedral, collegiate, and relig- abbesses overstepped the limits of
ious chapters, sede vacante, proved their power, examples of which may
detrimental to the property of the be found in c. 10, X, V, 38; c. is,
prelates or church, and were there- X, I, 33, in which latter chapter
fore suspended; e. 40, 6°, I, 6; c. an abbess is said to have suspended
un. 6 . III. 8. her clerics from office and benefice.
80 Of female chapters the Canon Neither are female religious
Law says nothing, although some suspended.
p
"-.
Go rgle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
234 PENALTIES
%
election, presentation, nomination; also, we presume,
that of corporate representation at processions, and there-
fore also the right of precedence. All these are sus-
pended (see can. 2275) ; but the right to administer prop-
erty is not stopped. It also appears logical to deny
-
the right of exercising pontifical functions, if such belong
to a suspended community.
3. If single members and the community as such are
suspended, the effects are bulked, according to can. 2275.
■■dbyC- jle
I , Original fro ni
UNIVERSITY OF WISCONSIN
TITLE IX
VINDICTIVE PENALTIES
Can. 2286
c
I
Poenae vindicativae illae sunt, quae directe ad
delicti expiationem tendunt ita ut earum remissio e
cessatione contumaciae delinquents non pcndeat
■
Can. 2287
Ab inflictis poenis vindicativis datur appellatio seu
recursus in suspensive nisi aliud expresse in iure ca-
vcatur.
Can. 2288
Exceptis poenis degradationis, depositionis, pri-
vationis officii aut beneficii, et nisi urgeat necessitas
reparandi scandalum, prudentiae iudicis remittitur, si
reus talis sit ut prima vice post vitam laudabiliter per-
actam deliquerit, poenae ordinariae per sententiam
condemnatoriam inflictae exsccutionem suspendere, ea
tamen conditione ut, si reus intra proximum triennium
aliud delictum ciusdem vel alterius generis com-
miserit, poenam utrique delicto debitam luat.
Can. 2289
Poena vindicativa finitur exus expiatione vel dis-
pensatione ab eo concessa qui legitimam habeat dis-
pensandi potestatem ad norman can. 2236.
235
v %\^ Original fro ni
UNIVERSITY OF WISCONSIN
>gk
"-.
236 PENALTIES
Can. 2290
§1. In casibus occultis urgentioribus, si ex obser-
vations pocnae vindicativae latae sententiae, reus
seipsum proderet cum infamia et scandalo, quilibet
confessarius potest in foro sacramentali obligationem
servandae pocnae suspendere, iniuncto oncre recur-
rendi saltern intra mensem per epistolam et per
confessarium, si id fieri possit sine gravi incommodo,
reticito nomine, ad S. Poenitentiariam vel ad
Episcopum facilitate praeditum et standi eius
mandatis.
§2. Et si in aliquo casu extraordinario hie recursus
sit impossibilis, tunc ipsemet confessarius potest dis-
pensationem concedere ad normam can. 2254, §3.
Every society is instituted for the welfare of its mem-
bers, but also for the sake of its own existence and weal.
This lies in the nature of society. The Church, too, must
necessarily provide for the salvation of souls, this being
her supreme law. But as a human society consists of
men, not of angels, it is evident that the Church has to
wield* a sword in order to exact obedience if other means
fail. This privilege belongs to her as an autonomous
society. Self-respect and self-preservation prescribe
means that savor of atonement and public reparation.
Such means are called vindictive penalties, because their
primary end is to avenge the public order. It is not
necessary to recall the penitential system, which bad very
much of a public character up to the twelfth century.
Neither is it necessary to remind the reader of the
historical fact that, during the time of religious union,
the vindictive measures were more numerous and more
*Ie
I , Original from
UNIVERSITY OF WISCONSIN
CANON 2286-2290 237
effectively enforced than now, and that in the course
of later centuries they became fewer and more spirit-
ualized. Still the present number is far from insignif-
icant
1. Vindictive penalties, says can. 2286, arc intended
directly for the expiation of crimes, and consequently
their relaxation does not depend on the mere cessation
of contumacy. The reason for this statement has been
given above. These penalties are called vindictive be-
cause their object is to avenge the social and juridical
order of the Church. They are penalties because inflicted
by lawful authority by way of privation, as plainly appears
in all the penalties enumerated in canons 2291 and 2298.
Note that vindictive penalties may be either latae
or ferendae scntentiae. Those latae scntcntiae require
no judiciary trial.1 A declaratory sentence is indeed
required, i. e., one to ascertain the criminal fact, but this
does not mean that the delinquent would not be obliged
to execute the sentence on himself if he knew himself
to be guilty of a crime on which the law puts a certain
penalty. Can. 2232, § 1, expressly says that vindictive
penalties have the same obligation attached to them as
corrective penalties. There are, however, exceptions to
this self-execution; see can. 2290.
2. Appeal or recourse from vindictive penalties is ad-
mitted, and this appeal has a suspensive, not merely a
devolutive effect, unless the law contains an express pro-
vision to the contrary. This, of course, must be under-
stood of such penalties as are inflicted ab homine or
a iure, but ferendae scntentiae; because when the law
1 Can. 3233 f. and can. jjgo, fi i can he inflicted only after a trial;
distinctly mention a vindictive see also Thesaurus-Giraldi, /. c,
penally latae scntentiae; wherefore p. 1, c. 5, p. 5, who admits such a
we cannot agree with Eichmann, penalty latae scntentiae; especially
/. c, p. 109, that vindictive penalties ineligibility for office.
oogle
Original from
UNIVERSITY OF WISCONSIN
■
238 PENALTIES
declares a penalty to be incurred ipso iure,3 there is no
recourse or appeal with suspensive effect possible.1
The suspensive effect, to repeat what was said before,
means that, pending the recourse or appeal, the delinquent
is not bound to consider or to conduct himself as con-
victed or guilty, either in the internal or in the external
forum.
3. Suspension of the sentence is a mitigation intro-
duced in legal terms by the Code. It may be called a
conditional pardon, such as is granted by judges on con-
dition of good behaviour in future, and has been used in
civil codes.4 In our can. 2288 it is called a suspension
of the execution of a condemnatory sentence by which an
ordinary penalty is inflicted. An ordinary penalty is one
which is determined in law or by custom B and does not
exceed the proportion of imputability, scandal, and damage
(see can. 2218). The judge may prudently apply this
benefit of the law to a delinquent who had led an
irreproachable life before, but now has committed a pun-
ishable crime for the first time. Suspension of sentence
a) Is a conditional suspension or pardon, for if the de-
linquent commits the same or a different crime within three
years (from date of the conditional pardon) he has to pay
the penalty originally decreed as well as the penalty deter-
mined for the new crime. But the suspended penalty
is not retroactive ; or, at least the text is silent about its
retroactive character.
b) The benefit of conditional pardon cannot be applied
by the judge if: i°. the penalty of degradation, deposi-
tion, privation from office or benefice has been inflicted, or
a See can. J343, | I, n. a: est 4 Thus the Rcgotamento of Gres-
\p*a iure infamir. ory XVI, art. 36, f 4; art. 49;
I Thciaunu-GiraJdi, /. c, p. 391 Wernz, J. c, VI, n. 85, p. 93^
p. 1, c. 3$. 0 Schroalzgrubcr, V, 37. n. 11.
jle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 2286-2290 239
if 2°. there is need of repairing: public scandal, because
vindictive penalties are intended for the maintenance
of the public order.
4. Cessation of penalties. Since the object just
mentioned can be obtained by atonement or expiation,
it is evident that, if satisfaction is made, the penalty
should cease. This is readily understood if the penalty
was a fixed one, as happens when a fine is imposed, or
if the penalty -is limited to a certain time, after the
lapse of which it ceases.6 Prescription cannot be alleged,
inasmuch as criminal action only, not penalty, is liable to
prescription.7 But in many cases expiation has a relative
meaning, which depends upon the acceptance of the
ecclesiastical authority, who must decide whether atone-
ment is sufficient.
Therefore, besides expiation, can. 2289 mentions a more
specific manner of releasing the penalty; vis.: by dis-
pensation. As dispensation in general is a relaxation of
the law, so here it is the remission of a penal law or
sentence. Such a relaxation can proceed only from,
the authority which has the power to enact penal laws
or inflict vindictive penalties." This, however, must be
judged according to can. 2236. Consequently:
a) A dispensation can be granted only by the prelate
who inflicted the penalty and, therefore, a penalty in-
flicted by common lato can be remitted only by the Pope;
a penalty inflicted by a particular law or statute can be
remitted by the one who enacted that particular law,
6 Thesaurus-Giraldi, /. c, p. 41. Hollweclc, I c. p. 141 according
7 Sec can. 1703-1705* to Thesaurus-Giraldi. I. c. p. 71):
6 Of little practical value is the yet there is a difference between the
distinction between absolution and two, inasmuch as absolution is an
dispensation, as if the former pro- act of justice (actus iustitiae),
cceded from the judiciary, the latter whereas dispensation is a favor
from the legislative power (thus (actus ofotiae).
.'le
/■"* ^ , ,|,., Original from
UNIVERSITY OF WISCONSIN
240 PENALTIES
♦. e.t concretely speaking, by the local Ordinary,9 or in
the case of exempt religious communities, by the com-
petent superior who enjoys this power according to the
constitutions.
b) A penalty inflicted by a superior ab homine can be
dispensed with by himself ;
c) And, since the successor in office has equal power,
he, too, can dispense ; the same, of course, is to be said of
delegates.
d) But a judge who merely applies the penal law or
precept cannot dispense from penalties, since his office
ceases with the sentence and his power is thereby ex-
hausted.10
All other extensions of these principles, proposed by
authors,11 must be limited to the rules stated above ; but
the Code has adopted some of the modifications provid-
ing for urgent cases (see can, 81).
5. ^Extended power is given to confessors for more
urgent occult cases. What occult or secret crimes are
has been explained in can. 2197, 40. This power is
limited as follows:
a) It is not only conditioned upon secrecy and urgency,
but the observance of the vindictive penalty, which is
supposed to be latae sententiac, must, at least probably,
cause the loss of good name to the delinquent and
scandal to the people. Of the existence of this condition
the petitioner may judge, and his testimony must be
believed. Take, c. g., suspension from office for a
certain time, or refusal to accept a dignity offered, of
which the confessor might know nothing.
8 Not by the metropolitan, nor a iure, not ab komxne.
even by the Apostolic Delegate, 10 Wernz, I. c, VI, n. 88 f.; p.
unless the latter has obtained del* 9J>
egatcd po"er; but his delegation 11 Thesauxus-Giraldi, /. c, p. 29
generally concerns only matters ft.
>Ic
Original from
UNIVERSITY OF WISCONSIN
o
CANON 2286-2290 241
b) The power granted to confessors is limited also in
this sense, that the confessor in the confessional — there-
fore not merely in foro interno — can only suspend the
obligation of observing the vindictive penalty imposed by
law, and must hold the penitent to the duty of having
recourse to the proper authority in writing, through the
confessor, within one month from the date of confession,
if this can be done without serious inconvenience. This
recourse must be had, without mentioning names, to the
S. Poenitentiaria or to the bishop, if he enjoys the
necessary faculties. The penitent must then abide by
their orders.
c) // in an extraordinary case recourse is impossible,
the confessor is empowered to grant the dispensation,
according to can. 2254, §3.
>Ie
k ,|,, Original from
UNIVERSITY OF WISCONSIN
Q
CHAPTER I
VINDICTIVE PENALTIES COMMON TO ALL THE FAITHFUL
Can. 2291
Poenae vindicativac quae omnes fideles pro delic-
torum gravitate afEcere possunt, in Ecclesia prae-
sertim sunt:
i°. Inter dictum locale et interdictum in communi-
tatem seu collegium in perpetuum vel ad tempus
praefinitum vel ad beneplacitum Superioris;
20. Interdictum ab ingressu ecclesiae in perpetuum
vel ad tempus praefinitum vel ad beneplacitum
Superioris ;
3°. Poenalis translatio vel suppressio sedis episco-
palis vel paroecialis ;
40. Xnfamia iuris ;
50. Privatio sepulturae ecclesiasticae, ad norm am
can. 1240, §1;
6°. Privatio Sacramentalium;
7°. Privatio vel suspensio ad tempus pensionis quae
ab Ecclesia vel ex bonis Ecclesiae solvitur, vel alius
iuris seu privilegii ecclesiastici ;
8°. Remotio ab actibus legitimis ecclesiasticis ex-
ercendis ;
9 " . Inhabilitas ad gratias ecclesiasticas aut munia in
Ecclesia quae s tat urn clericalem non requirant, vel ad
gradus academicos auctoritate ecclesiastica conse-
quendos ;
242
gle
v ,1,^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2291-2297 243
io°. Privatio vel suspensio ad tempus rnuneris,
facultatis vel gratiae iam obtcntae ;
ii°. Privatio iuris praecedentiae vel vocis activae et
passivae vel iuris ferendi titulos honoris, vestem,
insignia, quae Ecclesia concesserit;
120. Mulcta pecuniaria.
■
Can. 2292
Poenalis suppressio aut translatio sedis episcopalis
est Romano Pontifici reservata; sedis autem paroeci-
alis, a locorum Ordinariis decerni nequit, nisi cum
consilio Capituli.
Can. 2293
§1. Infamia est vel iuris vel facti.
§3. Infamia iuris ilia est quae casibus iure communi
expressis statuitur.
§3. Infamia facti contrahitur, quando quis, ob
patratum delictum vel ob pravos mores, bonam existi-
mationem apud fidclcs probos et graves amisit, de quo
iudicium spectat ad Ordinarium.
§4. Neutra afficit delinquentis consanguineos aut
affines, firmo praescripto can. 2147, §2, n. 3.
Q
Can. 2294
§1. Qui infamia iuris lab o rat, non solum est
irregularis ad normam can. 984, n. 5, sed insuper est
inhabilis ad obtinenda beneficia, pensiones, officia et
dignitates ecclesiasticas, ad actus legitimos ecclesi-
asticos perficiendos, ad exercitium iuris aut muneris
>Ic
£ * -» v J„ Original from
UNIVERSITY OF WISCONSIN
■
244 PENALTIES
ecclesiastici, ct tandem arceri debet a ministerio in
sacris functionibus exercendo.
§2, Qui laborat infamia facti, repelli debet turn a
recipiendis ordinibus ad norm am can. 987, n. 7, digni-
tatibus, benefkiis. officiis ecclesiasticis, turn ab ex-
ercendo sacro ministerio ct ab actibus legitimis eccle-
siasticis.
Can. 2295
Infamia iuris desinit sola dispensatione a Sede
Apostolica concessa; infamia facti cum bona existi-
matio apud fideles probos et graves, omnibus perpensis
adiunctis et praesertim diuturna rei emendatione,
fuerit, prudenti Ordinarii iudicio, recuperata.
Can. 2296
§1. Si agatur de rebus ad quas assequendas capa-
citas iure communi statuitur, inhabilitatis poenam
infligere una Sedes Apostolica potest.
§2. Iura iam quaesita non amittuntur ob superveni-
entem inhabilitatem, nisi huic addatur poena pri-
vationis.
Can. 2297
Mulctas pecuniarias iure communi inflictas, quarum
erogatio non sit eodem iure praefinita, aliasque iure
peculiar! statutas vel statuendas, Ordinarii locorum
erogare debent in pios usus, non vero in commodum
mensae episcopalis aut capitulans.
This chapter enumerates, — demonstrative, not taxative,
as the word praesertim indicates, — some vindictive pen-
oogle
k ,1,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 2291-2297 245
alties which may be imposed on any delinquent Catholic
in proportion to the gravity of his crime (see can. 2218).
Four species of penalties are explained in special
canons: transfer, infamy, disability, and fines.
1. The interdict, as far as it is imposed upon a com-
munity or corporation, is either local or personal, but it
is to be considered as a vindictive penalty only if inflicted
cither forever, or for a certain time, or ad bcncplacihtm
superioris. For if it is imposed merely for the time
being, namely, until contumacy ceases, it is a censure.
For the rest, the effects do not differ in either case.
2. The interdict ab ingressu ecclesiae forbids, according
to can. 2277, entering the church, but only when divine
offices are celebrated ; during the sermon or at other times
the church may be entered.
3. Penal transfer or suppression of an episcopal see or
parochial residence differs from the administrative trans-
fer of benefices mentioned in can. 1421 f. Besides stress
must be laid on see, or residence, for it means a transfer
from one place to another, not extinction. Suppression,
however, involves extinction, and in that case a union with
another diocese or parish would have to follow; this is
called unto extinctiva (can. 1419 f.).
According to can. 2292 penal suppression or transfer
of an episcopal see is reserved to the Roman Pontiff, t. e.,
the S. C. Consistorialis (can. 248). But a' parochial res-
idence may be transferred or suppressed by the local
Ordinary, provided he has asked the advice (he does not
need the consent) of his chapter (with us. the diocesan
consultors).
4. There is a twofold infamy distinguished in can. 2293:
one of law, the other of fact.
a) Infamy of law (iuris) is that expressly stated in
>Ic
k ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
246 PENALTIES
j
common law as a penalty for certain crimes ;" it is legal
conviction of a crime.
b) Infamy of fact (factij exists when one, by reason
of a crime committed, or on account of bad character,
has lost his good reputation with upright and serious
Catholics. Whether and when this is the case, is for the
Ordinary to decide. Generally speaking, apostates, big-
amists, adulterers contract infamia facti. But the facts
must be proved, not merely asserted, and, as in crim-
inal cases, at least two trustworthy witnesses are re-
quired.18
c) The effects of legal infamy are stated as follows:
i°. Legal infamy may be inflicted as a penalty, as per
can. 2291, n. 4.
2°. Legal infamy involves irregularity according to can.
984, n. 5, and therefore no layman affected by it can re-
ceive the tonsure or any order without an apostolic dis-
pensation.
30. Legal infamy entails disability or disqualification
for any ecclesiastical benefice, pension, office, dignity;
if conferred, the act is invalid (can. 2391).
4°. It disqualifies the infamous person from perform-
ing any legal ecclesiastical act of the kind mentioned in
can. 2256, n. 2, especially sponsorship.14
50. It disqualifies the infamous person from exercising
any ecclesiastical right or charge, e. g., the right of
election, presentation, or nomination,10 or such charges as
are involved in the offices of notaries, defenders, pro-
12 These crimes arc mentioned in ia Cfr. I Tim. 5, 19; can. 1939-
canons 2314, 5 1, n. a, 3; 23m; 1946.
3328, 3343, fi i. n. 2; 9 2, n. a; 14 See canons 76s. n. 2; 766. n.
■351, fi 2; J356; 2357, fi I) 2359, *; 795. n. a; 796. n. 3.
I a. is Sec canons 167, I 1, n. 3;
M70, 5 4-
oogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2291-2297 247
curators or attorneys, counsel, administrators,16 and, we
suppose, also church trustees.
6°. An infamous person must be prevented from
cooperating in sacred functions, such as serving at
Mass, carrying the canopy, cross, or censer, playing the
organ at divine service, etc.
d) Infamia facts produces the following effects :
l°. It constitutes a canonical impediment for receiving
orders, but does not render one irregular (can. 987, n. 7).
20. It disqualifies one from lawfully (not validly)
accepting ecclesiastical dignities, benefices, or offices.
30. Infamous persons may not exercise any function of
the sacred ministry which may ordinarily be performed
by laymen, as stated above.
4°. They must be repelled from exercising actus
legitimi as explained under can. 2256, n. 2. Those who
are manifestly infamous must also be refused the Holy
Eucharist (can. 855, §1).
Note that neither legal infamy nor infamy of fact
affects the blood relations or legal relations of the
infamous subject. Therefore, the consanguinei and
afiines of an infamous person are not included in this
penalty, nor do the effects of infamy affect them. On
the other hand, a pastor may incur the infamy of his
familiares and blood relations and be removed in an ad-
ministrative way on this account (can. 2293, §4; can.
£ 2147, §3, n.3.).17
e) Cessation of infamy.
laSee canons 373, 9 3; 1571, B ia stated; Eichmann, /. c„ p. III.
3: 1580, i 1; 1657. 6 1; after a 1? Can. T755. I a, n. a. must be
condemnatory or declaratory ten- applied to both kinds of infamy,
u in 1 they are excluded from being and hence a witness who is afraid
witnesses or experts; can. 1757, of causing infamy to himself or to
1795. 1931; but not from being his relatives ia not obliged to an-
plaintiffs, at least no such exclusion swer on the witness stand.
jle
j ^ Original from
UNIVERSITY OF WISCONSIN
248 PENALTIES
St
i°. Legal infamy or infamia iuris can be removed only
by an Apostolic dispensation; this is true with one ex-
ception, vis.: occult urgent cases, for in these can. 2290
may be applied.1"
2°. Infamy of fact (infamia facti) ceases by rehabilita-
tion of one's good name, i. e., by regaining one's lost rep-
utation with upright and serious Catholics. This de-
pends upon particular circumstances, continued good be-
havior, and, above all, on the judgment of the Ordinary.
An observation on civil infamy may not be superfluous.
The Roman law 1B branded several crimes with infamy
(infamia notati). Its regulations were partly adopted
and partly modified by the common law.20 However, the
modern civil legislation on this subject, though based
upon the Roman law, at least in Latin countries, has
never been formally adopted by the Church. Conse-
quently, when we speak of infamia iuris in ecclesiastical
language, this must be strictly understood of Canon Law
only. It does not follow, however, that civil infamy,
which generally consists in the withdrawal of civic rights,
at least for a time, does not produce canonical infamy of
fact (infamia facti).21 Therefore bishops, as custodians
of discipline, should not lose sight of the particular laws
of their respective countries. In England and many
States of the U. S., all disqualifications, such as dis-
ability to serve as witness or juror, have been abolished.22
Notwithstanding this abolition of the effects of infamy,
however, certain crimes are still known as infamous and
should therefore be taken as a directive norm for
18 See also can. 1948, 9 1: 5. Dist 51: c 4. x, IV. 21; c 5.
cerrtptio iudicialis cannot be sub- 6#, V, 9.
stituted in case of infamy. 21 Wernz, / c, VI, p, na, n.
10 Cfr. Dig, 3, 2, de his qui in- 105.
famia notartiur. 22 New International Encyci,
20 Cfr. cc. 2, 17, C 6, q. If c. 1904. VoL X, «, v. "Infamy."
Go >gle
j , Original fro m
UNIVERSITY OF WISCONSIN
CANON 2291-2297 249
ecclesiastical presumption, more especially when ad-
mission to the clerical state is in question.
5. Privation of ecclesiastical burial, according to the
rules laid down in can. 1240, §1.
6. Privation of the sacramentals, for instance, church-
ing of women, nuptial blessing, blessing of homes.
7. Privation or temporary suspension of pensions which
the Church is wont to pay, or which come from ecclesi-
astical property; also zvitlidrawal of some other eeclcsi-
asttcal rights or privileges. Therefore, state pensions or
pensions paid by private persons or companies, although
they may have an ecclesiastical name or be under ecclesi-
astical guidance, do not fall under the heading of ecclesi-
astical pensions.28 A right that may be withheld is that
of presentation, a privilege, that of a private oratory or
a special seat in church.
8. Exclusion from legal ecclesiastical functions, such
as sponsorship, proxy, lawyer (see can. 2256, n. 2).
9. Disability to obtain : (a) ecclesiastical favors, for
instance, dispensations or privileges; (b) charges which
do not presuppose the clerical state, for instance, notary,
administrator, beadle, sexton, etc; (c) academic degrees
which are conferred by church authorities, either by
ecclesiastical institutes 2* in the ordinary way, or by favor,
i. e., honoris causa.
Can. 2296, on disability, has two sections. The first
supposes that disability may be established by common
law (iure eommuni) or by a particular law, as also ab
D
2> Eichmann, /. c, p. iia. auctoritate ecclesiastica. Hence if
a* Dcgrcct conferred by secular ■ college or university has obtained
universities arc not excluded; nor a State diploma enabling it to grant
are academic degrees which are B.A. or M.A. or Ph.D., etc., it may
conferred by ecclesiastical institu* be legitimately acquired and re-
tions, but in virtue of civil or State tained.
authority, for tbc text oaya:
'■-.
oogle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
-'
■
pi
250 PENALTIES
nomine. Disability by common law, as, for instance,
with regard to orders and advowson,25 can be inflicted
only by the Apostolic See. But if a particular law or
diocesan statute should attach special qualities to a certain
charge held in the diocese (for instance, church trustee),
the disqualification can be established by the local
Ordinary.2'
§^ of can. 2296 states that rights already acquired, e. g.,
the right of a private oratory, are not taken away by a
supervening disability. Disqualification, therefore, con-
cerns only the future, not the past. However, the text
adds quite logically: "Nisi huic addatur poena priva-
tionis"; for if the penalty of privation is added and
doubled, it is evident that charges, rights, favors, aca-
demic degrees may also be taken away ; for it lies in the
nature of privation that a man cannot be deprived of
what he does not possess.
10. Privation or temporary suspension of a charge,
faculty, or privilege already obtained. Concerning
cases in which the Ordinary may dispense, see can. 2237.
If privation requires a declaratory sentence, infamy ex-
cuses from its observance (can. 2232, §1), unless the
crime is notorious. If the sentence of privation has been
validly issued and carried out, the office becomes vacant
(can. 183, §1).
n. Withdrawal of the right of precedence, of the active
and passive z'oice, of the right of using honorary titles, of
wearing robes and insignia granted by the Church, for
instance, pontifical emblems and prelatical garb.27
12. Pecuniary fines began to be imposed in the seventh
century and became quite frequent after the Germanic
SB Can. 948 ff., :453i 2383. 2394- 2: See canons 335; 349, 8 1, n. a;
2fl See can. 3237 concerning 405; 407; 409.
public and occult cases.
oogle
k ,| , Original from
UNIVERSITY OF WISCONSIN
CANON 2291-2297 251
St
a
laws were applied.28 But abuses soon crept in and became
so scandalous that the Council of Trent thought it
necessary to limit such fines.29 The Code admits them
for canons, for ecclesiastical judges, lawyers, and pro-
curators, against unlawful alienators, unjust copyists
or officials of diocesan courts who have to do with official
documents, and those who overcharge in demanding
taxes.30
The Code (can. 2297) regulates the use of fines
as follows : Pecuniary fines inflicted by common law,
but not determined by the same as to the manner in which
they are to be employed, also fines established or to be
lit
inflicted by particular law, must be spent by the
Ordinaries for cliaritable purposes, never for enriching
the episcopal or capitular fund. Although payment could
be enforced by ecclesiastical censures (can. 2198), the
secular arm would hardly lend its aid in the matter.
M Kober. in the Tubinatr Quar- 2» Trid.. Sew. as. c. 3. de ref.
talzchrift, 1881, p. 3 ff. On pecuni- so See canons 395, fi a; 4'JI i6*5.
ary fines b<c e. 41, X, V, 3; c. 14, | a; 1666; 3347, n. a; 0406, | a;
X; V, 6; c. *. X, V, 26; c. 7. X, V, 3408.
36; Hollweck, /. c, p. 154. 8 85-
i I • .. U1L, Original from
,00cVC UNIVERSITY OF WISCONSIN
CHAPTER II
VINDICTIVE PENALTIES FOR CLERICS
Can. 2298
Poenae vindicativac quae clericis tantum appli-
cant ur, sunt:
i°. Prohibitio exercendi sacrum ministerium praeter-
quam in certa ecclesia ;
20. Suspensio in perpetuum vel ad tempus praefi-
nitum, vel ad beneplacitum Superioris;
3°. Translatio poenalis ab officio vel beneficio ob-
tento ad inf erius ;
EJ
40. Privatio alicuius iuris cum beneficio vel officio
coniuncti ;
5°. Inhabilitas ad omnes vel ad aliquot dignitates,
officia, benefic ia aliave munera propria clericorum ;
6°. Privatio poenalis beneficii vel officii cum vel sine
pensione ;
70. Prohibitio commorandi in certo loco vel terri-
torio;
8°. Praescriptio commorandi in certo loco vel terri-
torio;
90. Privatio ad tempus habitus ecclesiastici ;
10 °. Depositio;
ii°. Privatio perpetua habitus ecclesiastici;
220. Degradatio.
Can. 2299
§1. Si clericua beneficium inamovibile obtineat,
252
oogle
f^ ^ ^ -Ar* Original from
UNIVERSITY OF WISCONSIN
CANON 2298-2305 253
eodem in poenam privari potest solum in casibus iure
expressis; si amovibile, etiam ob alias rationabiles
causas.
§2. Clerici obtinentes bcneficia, oflicia, dignitates,
possunt etiam aliquo tantum ministerio cum iisdem
coniuncto, ex. gr., ministerio praedicandi, confessioncs
audiendi, etc., prohiberi ad certum tcmpus.
§3. Nequit clericus privari beneficio aut pensione
cuius titulo ordinatus fuit, nisi aliunde eius honestae
sustentationi provideatur, salvo praescripto can. 2303,
3304-
•
Can. 2300
Si clericus gravia scandala praebeat et monitus non
resipiscat, nee scandalum queat aliter rcmoveri, potest
interim privari iure defer endi habit urn ecclesiastic um;
quae privatio, dum perdurat, secumfert prohibitionem
exercendi ministeria quaevis ecclesiastica et priva-
tionem privilegiorum clericalium.
Can. 2301
Ordinarius nequit praescribere ut clericus certo in
loco, extra fines suae dioecesis, commoretur, nisi
accedat consensus Ordinarii illius loci vel agatur de
domo poenitentiae seu emendationis clericis non solum
dioecesanis, sed etiam extraneis destinata, aut de domo
religiosa exempta, Superiore eiusdem consentiente.
■
Can. 2302
a
c
o
Tarn praescriptio quam prohibitio certo in loco com-
morandi et collocatio in domo poenitentiae aut in domo
jle
£ * -. v J„ Original from
UNIVERSITY OF WISCONSIN
■
"-.
254 PENALTIES
religiosa, praesertim si diu duraturae sint imponan-
tur tantum in casibus gravibus, in quibus, prudenti
Ordinarii iudicio, eae poenae necessariae sint ad clerici
cmendationem aut scandali reparationem.
Can. 2303
§1. Depositio, firrnis obligationibus e suscepto ordine
exortis et privileges clericalibus, secumfert turn sus-
pensioncm ab officio, et inhabilitatem ad quaelibet
officia, dignitates, beneficia, pensiones, munera in
Ecclesia, turn eliam privationem illorum quae reus
habeat, licet eorum titulo fuerit ordinatus.
§2. Sed hoc ultimo in casu, si clericus vcre indigcat,
Ordinarius pro sua caritatc, quo mcliore modo fieri
potest, ei providere curet, ne cum dedecore status
clericalis mendicare cogatur.
§3. Poena depositionis iniligi nequit, nisi in casibus
iure expressis.
Can. 2304
§1. Si clericus depositus non det emendationis signa
et praesertim si scandalum dare pergat monitusque
non rcsipiscat, Ordinarius potest eum perpetuo privare
iure deferendi habitum ecclesiasticum.
§2. Haec privatio secumfert privationem privilegi-
orum clericalium et cessationem praescripti can. 2303,
Can. 2305
§1. Degradatio in se continet depositionem, per-
petuam privationem habitus ecclesiastici et reducti-
onem clerici ad statum laicalem.
jle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 229&-2305 255
§2. Haec poena ferri solummodo potest propter
delictum in hire expressum, aut si clericus, iam
depositus et habitu clericali privates, grave adhuc
scandalum per annum praebere pergat
§3. Alia est verbalis seu edictalis, quae sofa sen-
tentia irrogatur, ita tamen ut omnes suos eilectus
iuridicos statim habeat sine ulla- exsecutione; alia
real is, si serventur sollemnia praescripta in Pontifical!
Romano.
Some penalties formerly employed, even against clerics,
such as branding, bodily chastisement ffustigatio), exile,
imprisonment and permanent confinement in monasteries,
are not mentioned in the Code,1
This enumeration of twelve species of penalties seems
not to be complete, but applies to clerics only (clericis
tantum).
1°. Prohibition of exercising the sacred ministry ex-
cept in a specified church. Thus a clergyman may be
told to say Mass in a certain chapel or church only,
or preach only in a certain church of a city, whilst all
others are forbidden to him.
20. Perpetual suspension, or suspension for a speci-
fied term or ad beneplacitutn superioris, in which latter
case the superior may shorten or lengthen the time.
30. Transfer from a better office or benefice to an in-
ferior one, which is always odious and, therefore, savors
p
1 Perforation of the tongue and hand, it must not be forgotten that
the ralleys (after degradation, bishops and popes, and also abbots,
especially of the so-called diaconi as temporal lords of their icapcctire
...
selvaoQi) were also sometimes used. territories, when employing such
Such are not exactly in accordance penalties, acted like other monarch*
with our present, rather sentimental. according to the custom of their
notions of the penal code, and are, times; Holiweck, /. c.
therefore, discarded. On the other
§le
k ,1,, Original from
UNIVERSITY OF WISCONSIN
256 PENALTIES
a
of degradation and, of course, involves loss of jurisdic-
tion in the territory from which the transfer is made.8
4°. Privation of one or the other right connected
with a benefice, e. q., administration of the same, or with
an office, e. g., the exercise of preaching or hearing con-
fessions, or, for bishops, the granting of faculties or free
appointment to offices.
5°. Disability for all or certain dignities, offices,
benefices, and clerical charges, which also extends to reli-
gious offices.* Here can. 2296, §2 must be applied,
although one may find there an analogy which is inadmis-
sible in penal matters. The analogy, however, consists
not in the application of the penalty, but only in the com-
petency to inflict it. Consequently the Ordinary cannot
decree disability for holding offices already possessed or
acquired,* but only disqualify the delinquent for the fu-
ture, i. e.t debar him from obtaining other dignities,
offices, benefices, charges which may be held by clergymen.
Besides, also in case of clergymen, can. 2296, §1, must be
applied, so that only the Apostolic See can inflict this
penalty if it is stated in common law. Only the Apostolic
See can dispense in public cases of inhabilitas latae sen-
tentiae.*
6°. Privation of benefice or office, with or without
pension, which is followed by a vacancy in the office or
benefice itself, provided it be decreed ipso iure or after a
regular trial.0 This is called penal privation, because
there is another, vis., the administrative one, treated in
can. 2147 ff. Here can. 2290 must be added, which
Q
■"■
2 See canons 2162-2167: 183; 873. ™8 an election, is a real right and
I 3. consequently included.
3 See can. 2413. 0 Can. 2237, 5 1, n. 3; Thesaurus-
I Here it may be added that the Ciraldi, /. ft* P. I, c. 38 (tfrf dfe,
ius ad rim, for instance, by accept- p. 49)
t> See can. 183, S 1; can. 192.
jle
^ ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2298-2305 257
o
further determines the penalty in question as fol-
lows:
a) An irremovable beneficiary — our irremovahle rec-
tors are here included — can be deprived of his benefice
(or pastorship) only in cases expressly stated in law;7 a
removable beneficiary, on the other hand, may be deprived
of his benefice also for other reasonable causes, such as
protracted disobedience or neglect of pastoral duties, and
those mentioned in can. 2182.
b) Clergymen who are in possession of benefices, offices,
or dignities may be forbidden to exercise part of their
ministerial functions for a special term; for instance, they
may have to abstain from preaching or hearing con-
fessions, or from administering their benefice, or from
exercising: the functions of their dignity. Of course,
this must be clearly expressed, for instance, by with-
drawing the faculty of hearing confessions, etc. That
with the total withdrawal of all faculties the office also is
withdrawn, is evident.
c) A cleric cannot be deprived of the benefice or pen-
sion which constitute his titulus ordinationis,* except in
the cases mentioned in can. 230$ and 2304. If the
Ordinary should deprive a cleric of the benefice or pen-
sion to which he has been ordained, the Ordinary must
provide a decent support, for instance, by offering the
clerie another position or pension, or maintaining him in a
charitable house. In cases of deposition this latter obli-
gation on the part of the Ordinary ceases to be one of
-,
T Lai at sentential- , sec canons | a; 3368, 5 >j *345i 3346i *35°i
3396, 2397, 2398, 2366. S 2; 2381, n. 2.
Ferandae senlentiae; canonB 2314, Facultative; canons 2324, 2336,
9 1. n. 2; 2331. 5 a; J.140, I 2; I 1. 2; 2355! 2359. S 2; 2360, S
2343, I a; n. 3. 2354, I *; 3359. *> 2394 n. a, 2403; 2405.
8 Sec can. 979.
ioogle
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
258 PENALTIES
justice and becomes one merely of charity (can. 2303, §2).
In cases of degradation both titles, of justice as well as
charity, cease to oblige the Ordinary (can. 2404).
70. Prohibition to live in a certain place or territory.
8°. Command to stay in a certain place or territory.
-
Concerning these two penalties canons 2301 and 2302
must be consulted.
a) The Ordinary cannot order such a cleric to live in
a certain place outside his own diocese. For his juris-
diction is territorially circumscribed, and only if the
Ordinary of the other diocese gives his formal consent,
may the clergyman thus ordered to live in a strange
diocese remain there. If there should be an interdiocesan
house of correction or detention, the Ordinary may send
a cleric there, because it is supposed that all the bishops
concerned have an agreement among themselves to that
effect. If the Ordinary wishes to inflict on a cleric the
punishment pronounced in n. 8, with the command to stay,
for the time being, in a religious house that belongs to an
exempt institute, he can do so only with the consent of
the respective superior. For with regard to this matter
the local Ordinary has no power over exempt houses in
his diocese, though with non-exempt houses he can deal
more imperiously, although it would not be against the
dictates of natural equity if he would first consult the
religious superior, for religious houses are not reform
schools or houses of correction.
b) The command to stay in a certain place or in a house
of correction or a religious house, especially for a con-
siderable time, should not be imposed except for zueiglity
reasons, such as the necessary amendment of the clergy-
man or the repairing of scandal The Ordinary is the
judge, but he should give the cleric a fair hearing and not
jle
k ,1 ^ Original fro m
UNIVERSITY OF WISCONSIN
CANON 2298-2305
259
■
simply " shut him off," as one Archbishop did in a case
brought before the S. Congregation.9
90. On prohibition to wear the ecclesiastical dress
enough has been said under can. 136. It refers, of
course, to the usual clerical garb and tonsure (can. 213,
§1 ), not the vestments used in the sacred ministry.
Concerning this penalty, can. 2300 makes the following
regulations :
a) Temporary privation of this right can only be
inflicted if the scandal given by the cleric is really
serious, after admonition has proved useless,10 and the
scandal u cannot be removed in any other way.
b) As long as the privation lasts, its effects are:
a) The clergyman thus punished is not allowed to per-
form any act of his ecclesiastical ministry. The text does
not declare the invalidity of such acts, e. (?., of jurisdic-
tion exercised in the confessional, or assistance at
marriage, nor the loss of the respective office; therefore,
the least is to be taken.
P) This privation entails the loss of the clerical priv-
ileges or rights mentioned in can. 1 18-123.
io°. Deposition,12 one of the oldest and at the same
time, heaviest ecclesiastical penalties, consists in the pri-
0 S. C. EE. ct RR-, March 6. 1841
(Bizzarri, f. e.M p. 533) instructed
the archbishop to leave the priest
in peace or give him a fair hearing.
A kind of long exile or prohibition
to stay in one'* diocese might cause
a conflict with the civil authorities;
for ordinaries have no right to for-
bid one to stay in a certain place
from the viewpoint of civil law.
10 On admonition, see can. 3143.
11 Notice the plural scandah,
which may mean diverse or pro-
tracted or repeated scandals.
12 See Kober, Die Deposition und
Degradation, 1867: formerly deposi-
tion and degradation were identical,
and entailed loss of office and bene-
fice together with disqualification,
but the privileges fori and
canonis remained. After the Xllth
century, however, deposition was
clearly distinguished from degrada-
tion, which later only implied loss
of the clerical privileges, see c. 10,
X, II, 1; c 7. X, V, 30; c. 37. X,
V.40.
§le
Original from
UNIVERSITY OF WISCONSIN
260 PENALTIES
vation of all the titles that a clergyman may possess,
except the clerical state itself and its essential privileges.
Its effects are more minutely described in can. 2303 as
follows :
a) The obligations inherent in the order received, as
well as the clerical privileges remain. Therefore, even a
deposed cleric, if he has been ordained subdeacon,
must recite the Breviary and remain unmarried (can. 132,
135), and retains the prerogatives mentioned in can. 118-
123.
b) A deposed cleric is ipso facto suspended from office;
c) He is disqualified for any office, dignity, benefice,
pension or any ecclesiastical charge (munus);
d) He is deprived of all the offices, dignities, benefices,
pensions, and charges that he holds, even though he has
been ordained on the title of benefice or pension. How-
ever, in case of the benefice or pension being the title on
which the clergyman was ordained, the Ordinary should
act charitably towards a needy cleric and provide
him with the necessary support, so that he may not be
compelled to beg his living and so disgrace the clerical
state.
No juridical claim can be asserted against this chari-
table support. Even if the clergyman belongs to a cleri-
cal aid society, which is based on mutual agreement and
contributions, he can in justice claim diocesan support,
because he still belongs to the clergy and is supposed to
be still incardinated. For our text, can. 2303, §2, only
mentions the two canonical sources of support : benefice
and pension. These, however, are essentially distinct
from a clerical aid society. On the other hand, it must
also be noted that the Ordinary, in case such a society
should furnish the means for an indigent clergyman,
* I Inruilp Original from
.OO^K. UNIVERSITY OF WISCONSIN
...
CANON 2298-2305 261
would not be obliged to exercise charity towards him.
Besides, the by-laws or constitutions might contain other
regulations precluding a deposed clergyman from the
benefit of support.
The mode of inflicting the penalty of deposition is
indicated in can. 2303, §3: "It cannot be inflicted except
for crimes expressly stated in the Code." However, the
Code knows no penalty which would be incurred
ipso iure or latae sententiac.1* But cases ferendae
sententiae are mentioned.14 If the Ordinary wishes to
depose a clergyman, he has to proceed in the judiciary
way, and constitute a collegiate body of five judges, —
otherwise the trial is null and void.14* In cases where de-
position is inflicted, can. 1948, §1 and can. 2288 must
be applied.
n°. Perpetual privation of the clerked garb is a more
serious penalty than even deposition. For, as can. 2304,
§2 states, it implies privation of all clerical privileges and
releases the Ordinary from even the clxaritable obligation
of providing the necessary support for an indigent cleric.
But, as the same can. 2304, §1 says, this penalty can only
be inflicted,
a) If the cleric has been previously deposed;
b) If he shows no signs of repentance, but rather con-
tinues to give scandal;
c) If he does not heed the admonitions addressed to
a
18 The Decretals are ambiguous, that such ■ penalty latae sent, can
so that some, for instance, Thes- be read into the old law.
aurus-Giraldi (P. I. c. 27), could 14 See can. 3314. § 1. n. a; 2320:
speak of a deposition latae senten- *3«» n. 1; 2328; 3350, S 1; 3354.
tiae; ace c. 3, X, V, 27; c. i, | i, | a; 2359, I 2; »i79i 3394, n. m;
6', V, 4; c. 5, 6°, V, 9; c un. 2401; a canonicallj' deposed cardt-
Extrav. Comni., V, 6. Hollweck, nal loses the active voice: " Vacante
t. c, p. 158. 9 01. note 1, denies Sede," n. 31.
14* Can. 1576. Ill »* *•
<0
jte
£ * ^ ^ ,|„ Original from
UNIVERSITY OF WISCONSIN
262 PENALTIES
him.1" All these conditions must concur in order to permit
the Ordinary to inflict this penalty. The trial must be
conducted in the same way as for deposition.16 This also
applies to religious superiors who have to proceed in such
cases.17
12°. Degradation, the last and severest of all clerical
penalties, consists in the reduction of a cleric to the lay
state. This seems to be impossible on account of the
indelible character imprinted by the Sacrament of
Holy Orders, but since a real distinction was introduced
between deposition and degradation in the XII century, it
was but logical to maintain the severest penalty for
those who had juridically degraded themselves.
a) The effects of .degradation, according to can. 2305,
§1, are: deposition, perpetual privation of the clerical
dress, and reduction to the lay state. These effects follow
both kinds of degradation, the verbal as well as the real
(vcrbalis seu edictalis et recdis), as the difference
between the two lies only in the mode of application.
Verbal degradation requires merely a judicial sen-
tence, whereas real must be accompanied by the cer-
emonies described in the Roman Pontifical.18 Note that
even a degraded cleric is bound to observe celibacy.19
b) This penalty is ferendae sententiae only, since no
case of laiae sententiae is mentioned in the Code.
Therefore the text (can. 2305, §2) says: " fcrri potest,"
15 Can. 3143. the Pont. Rom., presupposes that
io Can. 1576, I i, n. a. the clergyman was tried and scn-
1T Can. 670. tence was given, and, besides, that
18 P. Ill: " Degradations For- he is offered to the local ordinary
ma." which contains the doleful cere- for this act of humiliation,
monies of degradation, commencing 10 Cf r. can. 213, I a; but the ob-
with the rite for degrading a Pope ligation of reciting the Breviary
and ending with that for tonsured cea«es; can. 138.
clerics. This ceremony, as stated in
-
-
b
2
>gle
Original from
UNIVERSITY OF WISCONSIN
N
■
CANON 2305 263
it may be inflicted for crimes mentioned in the law ; z0 or
if the cleric, being already deposed and deprived of the
clerical garb, continues for one year to give scandal.
Attention must again be drawn to can. 1576, §1, n. 2,
which requires five judges, to pronounce sentence, and
to can. 1948, §1, which forbids substituting the judicial
warning in this case, and to can. 2288, which excludes
a suspension of the execution of the sentence.
20 These cases, besides the one n. 3; 3343, S i> n. 3; >354t 3 *\
mentioned in the second clause of 936S; 2388, $ 1.
1. 2305, 6 3, Are canons 2314, S i»
G I Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
TITLE X
PENAL REMEDIES AND PENANCES
The title is divided into two chapters, the first of
which treats of penal or preventive remedies, the other
of penances. This order is logical, since penal remedies
are more closely related to penalties proper than the so-
called penances. For penal remedies cause some de-
privation or pain to normally constituted persons, and
this is essential to any penalty. All such remedies leave
a stain upon the moral character of the person sub-
jected to them. They presuppose a punishable crime
or at least blameworthy conduct, which might lead to
more serious breaches of the penal laws. Therefore
penal remedies, as stated, partake of the nature of pen-
alties. This applies also to the mode by which they are
inflicted. Some of them are mentioned in the decrees
of the Council of Trent,1 others were introduced by later
disciplinary laws and now appear formally sanctioned in
the Code.2 To each of the penal remedies we shall add
the respective canons referring to them.
c
l Trid., Sess. 13, c 1, de rtf. Werns, /. c, VI, p. 357, n. 353 £.;
fl S. C. EE. ct RR., June n, Eichnuon, ;. c, p. iji,
1880 {Coll. P. F., a. 1534); kc alio
B
-
a
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
CHAPTER I
PENAL REMEDIES
Can. 2306
Remedia poenalia sunt:
1 ° Monitio ;
a0. Corrcptio;
3°. Praeceptum;
4°. Vigil an tia.
Can. 2307
Eum qui versatur in proxima occasione delictum
committendi vel in quern, ex inquisitione peracta,
gravis suspicio cadit delicti commissi, Ordinarius per
sc vel per interpositam personam moneat.
Can. 2308
Si ex alicuius conversatione scandalum vel gravis
ordinis perturbatio oriantur, est locus correptioni, ab
Ordinario per se vel per interpositam personam, etiam
per epistolam faciendae, peculiaribus accommodatae
conditionibus personae et facti de quo agitur.
Can. 2309
§1. Tarn monitio quam corrcptio potest esse vel
publica vel secreta.
265
jle
/""* ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
266 PENALTIES
§2. Correptio vcl monitio publica fiat vel coram
notario aut duobus testibus, vel per epistolam ita
tamen ut de rcccptione et tcnorc epistolae ex aliquo
documento constet.
§3- Correptio publica fieri tantum potest adversus
reum de delicto convictum vel confessum; et est
iudicialis, si fiat a iudice pro tribunali sedente vel ab
Ordinario ante processum criminalem.
§4. Correptio iudicialis vel habetur loco poenae vel
fit ad augendam poenam, praecipue si agatur de re-
cidivo.
§5. De monitione et correptione, etsi secreto factae
fuerint, constare debet ex aliquo documento in secreto
archivo Curiae asservando.
§6. Tarn correptio quam monitio fieri potest semel
vel pluries, pro Superioris arbitrio et prudentia.
Can. 2310
Monitionibus et correptionibus incassum factis,
vel si ex eisdem effectum sperare non liceat, datur
praeceptum, quo quid agere quidve evitare praeventus
debeat, accurate indicetur, cum poenae comminatione
in casu transgressionis.
Can. 231 1
§1. Si casus gravitas ferat et praecipue si agatur de
eo qui in periculo versatur rel abend i in idem crimen,
cum Ordinarius submittat vigilantiae.
§2. Vigilantia praecipi quoque potest ad augendam
poenam, praecipue in recidivos.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 2306-231 1 267
a>
o>
a
Penal remedies are intended as means of preventing a
more serious breach of the public order and discipline of
the Church and thus of rendering the application of pen-
alties in the strict sense either remote or superfluous.
The Code distinguishes four kinds of preventive remedies :
warning, correction, order or precept, and surveil-
lance.
I Warning may be given either by the Ordinary hint-
self or by another person at his request, in case one is in
the proximate occasion of committing a crime, or in case
of a person who has fallen under serious suspicion of,
having committed a crime, investigation already made
justifying such a suspicion. The occasion is proximate
if dangerous company, especially in the same house,
proves a stumbling block to the person's virtue.1 The in-
vestigation must be made according to can. 1936-1946.
How to proceed is laid down in can. 2309, and is the
same as for
2. The rebuke or correctio, which is administered to a
person whose conduct causes scandal or a serious distur-
bance of the public order (f. g., bigamy and concubin-
age). The warning may be given by the Ordinary per-
sonally or through another trustworthy person, orally or
by letter. But it should be so worded as to suit the con-
ditions of the respective person and case ; which means
that the social and individual character and position of
the person in question should be considered as well as
the nature of the case. For there are cases that neces-
sitate great delicacy and prudence.
The manner in which both warning and rebuke must be
administered is set forth in can. 2309, as follows :
3 As in mixed marriages, frequenting of suspected theatres and
families, etc
oogle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
268 PENALTIES
a) The warning or rebuke may be either public or
secret. If secret, it is rather paternal and generally given
in writing or through an intermediary/ who, however,
must be commissioned by the Ordinary, i. e., by the
diocesan bishop, or the prelate nitllius, or the exempt re-
ligious superior, but not the vicar-general, unless he has
received a special commission for this purpose. The
reason is that penal remedies partake of the nature of
penalties, concerning which, according to can. 2220, §2,
the vicar-general is not competent in virtue of his office.
He may, however, like the dean or pastor, be employed
as persona mterposita.
b) Public correction or admonition must be made either
before a notary, who in this case may also be the chan-
cellor,0 or in the presence of two witnesses, who may be
discreet laymen, or by letter, which should be registered.
If by letter, a record must be kept, showing that it was
delivered,0 and an abstract of the contents must be pre-
served in the diocesan chancery or court.
c) A public rebuke — not a warning — can be served
only when the delinquent has been convicted of, or con-
fessed, a crime. It is a judiciary rebuke (correptio
iudicialis) 7 if administered by the judge sitting in tri-
bunal or by the Ordinary (not the vicar-general unless
he has a special mandate) before the criminal procedure
has taken a legal turn.
d) A judiciary rebuke may take the place of a criminal
penalty or may be added to the criminal penalty, especially
in case of relapse.
e) Both admonition and correction, if made secretly,
must be recorded in writing and an abstract of the records
4 S. C. EE. ct RR-. June It, e The receipt for the registered
1880. n. 6. letter should be inserted in actis.
oCan. 37a, I 3. TScc con. 1947-1953.
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 2306-231 1 269
kept in the secret archives of the diocesan court, because
they may be needed as documents for criminal procedure,
f ) Both warning and rebuke may be administered once
or oftener, as the superior shall judge prudent. Although
the word peremptory should be employed for the sake of
greater efficacy, yet the rebuke or warning could not be
impugned if this term were omitted, because the Code
contains nothing to that effect, but insists only on regis-
tration.
3. A precept, order, or injunction is a special com"
viand of tlxe bislu>pt accompanied by threats of punisli-
fncnt in case of disobedience* It may be served after a
warning or a rebuke has proved ineffective or if it is
likely that these two, warning and rebuke, will not pro-
duce the desired effect. Therefore, in this latter case,
the warning and rebuke may be omitted, and the bishop
— not the vicar-general — may proceed at once to issue an
injunction. This, no doubt, depends on the psychological
condition of the delinquent (obstinacy, hot temper) and
on the nature of the delinquency, whether the scandal or
neglect is great and wide-spread or not. The precept
must contain as clear and distinct a statement as the case
permits, of what the praeventus 9 must do or avoid.
4. Surveillance or vigilance, as a separate and distinct
penal remedy, is entirely new,10 though the well known
Motu proprio of Pius X, " Sacrorum antistititnt," Sept. 1,
191 o, appointed a vigilance committee against modernistic
tendencies. Here it has the character of a special penalty,
and according to the order of enumeration, is the severest
SS. C. EE. et RR., /. c, n. 1, 10 S. C. EE. et RR., /. c, n. 1
1880, 11. 9, which furnished the says: "Ordinario iudici pastorale
aabitance of our text. onus tncumbit . . . super torun-
9 Praeventus in the text implies dem vittt rutionem vigilando"; but
that one has been served with an this is a general obligation, not a
anticipated or informal accusation. penal remedy.
gle
£ " -* v ,1,, Original fro m
UNIVERSITY OF WISCONSIN
270 PENALTIES
o>
a
of the penal remedies. It is doubtless the most disagree-
able one, especially in our country, although even the
civil law employs police vigilance.
Can. 131 1 says that a very serious case may demand
vigilance, especially if a person is exposed to the danger
of relapse into tlie same crime. Under such conditions
the Ordinary may place the person in question, whether
he be a layman or a cleric, under special supervision.
But he may also increase the penalty, particularly for
recidivi.
It may be added that, since injunction and surveillance
are severer penal remedies than warning and rebuke, the
procedure required for the latter a fortiori also applies to
the former.
Gi Original from
OOglt UNIVERSITY 0FWI5C0NSIN
■
pi
■"■
CHAPTER II
PENANCES
Can. 2312
§1. Poenitcntiae in foro externo imponuntur ut
delinquens vel poenam effugiat, vef poenae contractae
absolutionem aut dispensationem recipiat.
§2. Ob delictum autT transgression em occultam
nunquam poenitentia publica imponatur.
§3. Poenitentiae non tain secundum quantitatem
delicti, quam secundum poenitentis contritionem
moderandae sunt, pensatis qualitat ibus persanarum et
delictorum adiunctis.
Can. 2313
§1. Praecipuae poenitcntiae sunt praecepta:
i°. Recitandi determinatas preccs ;
20. Peragendi piam aliquam peregrinationem vel
alia pietatis opera ;
3°. Servandi peculiare ieiunium;
4°. Erogandi eleemosynas in pios usus;
o
5°. Peragendi exercitia spiritual i a in pia aut religiosa
domo per aliquot dies.
§3. Poenitentias Ordinarius pro sua prudentia addere
potest poenali remedio monitionis et correptionis.
Penance, in the external forum, means penal satisfac-
tion and may be compared, to some extent, to an apology.
271
Gi Original from
OOglt UNIVERSITY 0FWI5C0NSIN
273 PENALTIES
The Code first determines the effect or object of penances
and then enumerates some special kinds.
i. Penances are imposed, in the external forum, in order
that the delinquent may escape a canonical penalty, prop-
erly so-called, or that h€ may obtain absolution or dis-
pensation from a penalty already imposed.
Hence a penance may be decreed,11 even if no censure
latac se>\tentiae has been incurred on account of ignorance.
Resides the willing assumption of a penance is indicative
of willingness to recede from contumacy 12 and renders
one worthy of a dispensation, even though the latter de-
pends entirely on the superior's good pleasure. In
former times public penances were applied quite fre-
quently; but they could be redeemed,18 and this led to
many abuses, so that, about the thirteenth, and especially
in the fourteenth century, public penances fell entirely into
desuetude, However, although public sacramental pen-
ances are abolished, yet some public penances may even
now be imposed. But the Code clearly states (can. 2312,
§2) that no public penance can ever be imposed for an
ocexdt crime or transgression, even though the penitent
should be willing to undergo it. This text is negatively
worded and therefore admits of a conversion of terms,
scil. : A public penance may be imposed for a public
crime.14
The kind of penance imposed should be proportionate,
not so much to the gravity of the crime, as to the dis-
position of the delinquent. And in meting it out, due
regard should be paid to the qualities of the person con-
cerned and the nature of his crime.15
it Can. 2219, 8 3, d. 1. 14 For instance, apologizing to a
12 Can. 3224, S 3. congregation for marrying before
18 See X, V, 38 of the Decretals a non-Catholic minister,
and the commentators thereon. IB See cc. j, 8, X, V, 38.
>Ie
Orifi rial from
UNIVERSITY OF WISCONSIN
CANON 2312-2313 273
a>
2. The principal penances, though not the only ones,
are:
a ) To recite certain prayers, e. g.t the penitential psalms,
or the Stations of the cross, or the Rosary ;
b) To make a pilgrimage to a certain shrine — provided
the penitent has the means to do so and is physically
■
able, — or to perform other devotional works, such as
taking care of the church or altar;
c) To observe special fasts, if one's work or family
permits ;
d) To give alms for charitable purposes;
e) To retire for some days into a religious house.
These penances may be imposed by the Ordinary
(but not by the vicar-general) and they may be inflicted
either judicially or extra-judicially.18
■
U See can. 1933, | 4.
G I Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
Q
PART III
PENALTIES FOR INDIVIDUAL CRIMES
The Code now proceeds to the consideration of the
penalties to be inflicted for specified crimes. The nature
of the latter furnishes a basis for classifying the former.
It is not the kind of penalty, as was the case in the Con-
stitution " Apostolicae Sedis," of 1869, but the character
of the transgression that constitutes the formal basis of
division. The Code contains all the penalties now applied,
whilst the aforesaid Constitution only dealt with cen-
sures : excommunication, suspension, and interdict. This
exhaustive treatment of ecclesiastical penalties1 renders
a return to former sources as such (though not, of course,
as historical and interpretative aids) quite superfluous.
Therefore we shall refer to former laws in the footnotes
rather than in the text, except in as far as they contrib-
ute to a clearer understanding of the present discipline.
Note that some terms and subjects, which seem to require
an explanation, have been treated in former volumes of
this Commentary.
• i
B
lSet can. 6, n. 5; can. j?io;can. 2ja6, t a, 3.
374
~-
ul
a
c
a
-
<
—
-
-
■-:
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
TITLE XI
CRIMES AGAINST FAITH AND UNITY
It is quite natural that a society which claims to be
the one Church instituted by Christ, should direct its first
penalty against crimes that subvert its very foundation,
t. e., divine and Catholic faith. Belief in the divine
mission and the dogmas of the Church is attacked and
shattered by apostasy, heresy, and schism, to which must
be added every suspicion uttered publicly and the
denial of propositions which, though not formally dogmas,
are closely connected with the deposit of faith. Special
danger to the faith arises from the perusal of writings
that attack the Church and her teachings. Finally, the
practice of faith is relaxed, and faith itself jeopardized,
by too free intercourse with non-Catholics, either in
sacred things or socially.
i-
APOSTASY, HERESY, AND SCHISM
Can. 2314
c
a
§1. Omnes a Christiana fide apostatae et omnes et
singuli haeretici aut schismatici:
2°. Incur runt ipso facto excommunicationcm ;
a°. Nisi moniti resipuerint, priventur beneticio,
dignitate, pensione, officio aliove munere, si quod in
Ecclesia habeant, iniames declarentur, et clerici,
iterata monitione, deponantur;
275
,1,., Original fro ni
UNIVERSITY OF WISCONSIN
gle
■
2
-
276 PENALTIES
3°. Si sectae acatholicae nomen dederint vel publico
adhaeserint, ipso facto infames sunt et, firmo
praescripto can. 188, n. 4, clerici, monitionc incassum
praernissa, degradentur.
§3. Absolutio ab excommunicatione de qua In §1, in
foro conscientiae impertienda, est speciali mode Sedi
Apostolicae reservata. Si tamen delictum apostasiae,
haeresis vel schismatis ad forum externum Ordinarii
loci quovis modo deductum fuerit, etiam per volun-
tariam confessionem, idem Ordinarius, non vero
Vicarius Generalis sine mandato speciali, resipi-
scentem, praevia abiuratione iuridice peracta aliisque
servatis de iure servandis, sua auctoritate ordinaria in
foro exteriore absolvere potest; ita vero absolutus,
potest deinde a peccato absolvi a quolibet confessario
in foro conscientiae. Abiuratio vero habetur iuridice
peracta cum fit coram ipso Ordinario loci vel eius
delegato et saltern duobus tcstibus.
I
§r. All apostates from the Christian faith and all
heretics and schismatics:
1°. Incur excommunication ipso facto, and
2°. Unless they repent, shall be deprived of any bene-
fice, dignity, pension or other charge which they may
hold in the Church, and be declared infamous; clerics,
after repeated warning, shall be deposed ;
30. If apostates, heretics or schismatics have joined a
non-Catholic sect, or publicly professed themselves
members thereof, they are by this very fact (ipso facto)
infamous; clerics, after having been warned without re-
suit, must be degraded and their offices thereby become
vacant.
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 2314
277
a
1
1) What the terms apostates, heretics, schismatics
mean, has been explained in can. 1325, §2. All three
presuppose valid baptism. By apostates are here under-
stood all who have gone astray from the Christian faith
(devH a fide).9 For the rest it matters not whether the
apostate has espoused Paganism, Judaism, Moham-
medanism, or atheism, or whether he is a mere un-
believer. Therefore also Freetfnnkers must be included
in the term, because they reject all authority in matters
of faith.8 Concerning Spiritists there is room for doubt.
For although it is quite evident that Spiritism as a sect
is heretical,* or rather tantamount to apostasy, because it
retains hardly anything specifically Christian, yet it is
possible, nay probable, that some of its followers may
persuade themselves that they are Catholics, and can not,
therefore, be classified among those mentioned in can.
22°5> §3- The benefit of doubt may be applied to them
(can. 209).
Heretics, according to can. 1325, §2, are such as deny
obstinately one or more articles of faith. It is not
necessary to join a non-Catholic sect in order to be a
heretic in the sense of §1, n. 1.
Schistnatics refuse obedience to the Roman Pontiff and
therefore are outside the communion of the faithful.
-
iAp*st. Sedis, I, 1: "Omnes a
Christiana fide apostates, et omnes
oc singutot haereticos, quocumque
nomine censeantur, et cuiuscumque
sectae exiitant, risque ercdentcs,
eorutnque rectptorrs, fautore* ae
generaliter quoslibet illorum de-
fensorts," — I, 3: "Schismatic 01 ,
et ros, qui a Romani Pontificis pro
tempore existentis obedientia per-
tinaciter se subtrahunt, vel re-
cedunt." S. Thoni., II— II. q. xi,
art. 1 : "m fide Christiana reeestio" ;
Paul III, "Cum ex opostolatus," Feb.
15. 1559. 5 a.
3 Thus alto Avamini, De Con-
stituticne Apostolicae Sedis, cd. 6,
»88j. p. 4; Ballcn'ni-Palmieri, Opus
Theol. Morale, Vol. VII, n. 4«,
p. 219 (ed. *).
4 S. O.. July j8, 1847; Auk. 4.
1856 {Coll. P. F., nn. 1018, 1128);
Pconacchi, Commrntaria in Const.
Ap. Sedis, 1883, Vol. I. p. 83.
jle
Original from
UNIVERSITY OF WISCONSIN
278 PENALTIES
This separation, too, may take place with or without
forming or clinging to schismatic doctrines. Since the
Vatican Council, schism is generally connected with
heresy. For pure schism, •'. e., mere disobedience to the
lawful head of the Church, without at least a speculative
positive doubt in her divinity, is not easily possible, ex-
cept in individuals.6
The crime of apostasy, heresy, or schism must be ex-
teriorly manifested, either in words, writings, or acts
which betray defection from the Christian Church, denial
of some article of faith, or separation from the unity of
the Church, according to can. 2195, §1 ; because merely
internal apostasy, heresy, or schism do not belong to the
external forum and therefore are not intended here.8
From merely internal transgressions, even though they
be grievously sinful, any confessor may absolve.
2) The penalties here enunciated are twofold: censure
and vindictive penalties; besides, a distinction is drawn,
according to can. 2207, n. 1, by reason of dignity, be-
tween laymen and clerics.
a) The censure inflicted is excommunication incurred
ipso facto, which per sc requires not even a declaratory
sentence. Only if, in the prudent judgment of the
superior, the public welfare should require such a sen-
tence, it must be pronounced.7 The bonum publicum
certainly demands it in the case of clergymen. Note
that the term moniti (§1, n. 2) does not refer to the in-
5 Thus the Greek schismatics, the D'Annibale, /. c, says it does not
Jansenists, and the "Old Catholics" matter whether the words or facts
are no less heretics than schis- bctrayinj the crime were heard or
matics; also the National Italian witnessed by bystanders; they are
Catholics; sec D'Annibale, In Con- public if they could have been heard
stitntionem Ap. Stdis, ed. 1894, p. or seen (/. c, p. 34).
34- T See can. 2223, § 4; also can.
eSee Hollweck. /. c, p. 162; 2x32.
oogle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2314 279
curring of the censure. Consequently, no canonical
warning or admonition is required.1
D) The vindictive penalties inflicted are :
for laymen: privation of ail offices and pensions they
may hold in the Church, and infamy.
For clerics: privation of every benefice, dignity, pen-
sion, office, or charge which they may hold ; also infamy
and, after a fruitless warning, deposition.
A warning must precede these vindictive penalties,
and we suppose the warning must be administered ac-
cording to can. 2143, i. e., before an official of the diocese
or two witnesses, or by registered letter. The infamy
inflicted on both laymen and clergymen, and the de-
position pronounced against clerics, are ferendae senten-
tiae.9
Deposition requires a second warning after the first
one has been served, with the threat of privation and in-
! famy'
3). The vindictive penalties are rendered more severe in
two cases, which may be distinct, but may also occur by
one and the same act: sectae acatlwlicae nomen dare or
a.
publice adhaerere.
A sect means a religious society established in opposi-
tion to the Church, whether it consist of infidels, pagans,
Tews, Moslems, non-Catholics, or schismatics.10 To be-
come a member of such a society (nomen dare) means
to inscribe one's name on its roster. Of course, it is
presumed that the new member knows it is a non-
Catholic society, otherwise he would not incur the cen-
sure. If he hears of the censure after he has become a
B Pennacchi, .'. c, I, p. 101 f. these penalties were incurred ipso
9 See caa. 2223! 6 3- Formerly turf. Hollwcck, i. c, p. i6j f.
10 D'Annibale, /. c, p. 79.
Coogl
e
Original from
UNIVERSITY OF WISCONSIN
28o PENALTIES
member, and promptly severs his connection, the penalty
is not incurred.11
The text also provides for cases of informal member-
ship. Publice adhaerere means to belong publicly to a
non-Catholic sect. This may be done by frequenting
its services without any special cause or reason, or
by boasting of being a member, though not enrolled, by
wearing a badge or emblem indicative of membership,
etc. Those guilty of such conduct, whether laymen or
clerics, render themselves infamous (infamia itiris latae
senteniiae) and consequently can. 2294, § 1 must be
applied to them.12 A cleric must, besides, be degraded
if, after having been duly warned, he persists in being a
member of such a society. All the offices he may hold
become vacant, ipso facto, without any further declara-
tion. This is tacit resignation recognized by law,1' and
therefore the vacancy is one de facto et lure. It need
hardly be added that excommunication follows in each
case, although the vindictive penalties only are mentioned
in 20 and 3°.
It may not be amiss to add that the penalties decreed
for apostasy, heresy, and schism, presuppose malice
(dolus) as explained above in can. 2200. Consequently,
if one would retain the Christian faith interiorly, but act
exteriorly as an apostate or heretic, — which would be de-
testable hypocrisy, — he would not incur the penalties
in foro interno?4, but in faro externo the presumption
11 Can. 2302, fi 1 ; Hollweck, /. c, that irregularity is attached to toil
p. 170. infamy; can. 984, n. 5.
IB Privation of benefices, etc., men- 18 Can. 188, n. 4.
tioned in can. 2314, ' 1, n. 2, ia M Therefore any confessor may
not repeated in n. 3, because in- absolve him in the sacramental
eluded in the infamia iurit. Note forum; Hollweck, /. c.t p. 163, note
oogle
^ ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2314 281
would be against him, and the proof of his internal de-
fection would be incumbent on the one who asserted it,
according to can. 2200, §2.
§2 Treats of absolution in the internal and external
forum, and of abjuration.
-
1°. Absolution from excomntunication, mentioned in
§i, is reserved to the Apostolic See speciali modo, as
far as it is to be imparted in the court of conscience only.
Concerning this absolution, the rules laid down in can.
224&-2254 must be consulted; in cases of reasonable
doubt, can. 209. Ordinaries need a special faculty to
absolve from this censure.15
2°. Absolution in the external forum may be imparted
by the local Ordinary (but not by the vicar-general,
without special commission) in the following circum-
stances:
a) If the crime of apostasy, heresy, or schism has been
in any way brought before the external court of the
Local Ordinary;
b) If the delinquent is repentant, and
c) If he abjures his error in juridical form and
complies with all other prescribed conditions.
Ad a) Juridically the crime is before the external court
of the local Ordinary if a summons has been duly issued.
However, since the Code adds : " quoquo modo ad forum
deductum, " we may adopt the opinion of St. Alphonsus,
that it would be sufficient if the crime had been proved
to the ecclesiastical judge by at least one witness.18 This
is all the more acceptable since our text admits voluntary
confession, which certainly can be made in writing or
a
15 Apostolic Delegates enjoy this U PuUer, Comment, in Facult-
f acuity; see Index Facultctum, May A post., ed. 4, p. 24, c. 17.
6, 1919. n. 4.
jle
Original fro m
UNIVERSITY OF WISCONSIN
383
PENALTIES
N
■
through another person. This is nothing else but the
sponte comparere, to appear of one's own accord, before
the Holy Office or the local Ordinary, — a formula found
in former decisions.17
Ad b) Repentance is supposed to be effected by a spon-
taneous accusation, but it also means that a relapse should
be dealt with more severely, although the Code does not
make it a condition of absolution.18
Ad c) Abjuration must be made according to the
formula contained in the Roman Pontifical and Ritual.19
It is a juridical abjuration if made before the local
Ordinary or his delegate and at least two witnesses.
Hence the vicar-general, or the rural dean, or any other
priest may be delegated for the purpose. Note, how-
ever, that religious superiors*, as such, even though ex-
empt, cannot receive this juridical abjuration, because
it appertains to matters of faith, in which they are not
competent,20 though, of course, they may act as delegates
of the local ordinary.
Here it may be proper to call attention to the regula-
tions issued by the Holy Office concerning the manner
of absolution in cases of doubtful baptism.21 The same
S. Congregation has ruled that boys and girls under four-
teen years of age need not pronounce the abjuration, but
-
itS. O., June ai, 167a; Jan. 3*
1648 (Coll. P. F., nn, 3U 98).
Hence, in case of converts being
received, th* priest (partor or as*
■sunt, curate) mar simply take
down in writing the confession of
the convert and write a letter to
the bishop, informing him that he
witnessed the voluntary confession
and asking for delegation to receive
the abjuration in the presence of
two witnesses.
18 S. O., Jan. si, 1627, /. c.
10 Pont. Rom., P. Ill, tit. " Ordo
aS Reconcilianlum A postal am,
Schismaticum vel Haereticum." Rit.
Rom,, tit III, cap, 3; S. O., Aug.
aS, 1861 (Coll. P. F., n. iui).
20 Can. 501, S 2.
zi S. O., July 30, 1850 (Coll. cit.,
n. 1178); also to be found" in the
priest's New Ritual, published by
various editors, under the title
Reception of Converts.
Go >gle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 2314
283
■
should make a simple profession of faith, after which
they may be reconciled to the Church.22
These are the servanda de iure, viz.: assurance of
Baptism, sacramental confession, and a wholesome pen-
ance.
2.1
4) After being absolved in the external forum., the
penitent may be absolved from his sin by any confessor
in the court of conscience*4 (can. 2251). Why absolu-
tion in foro extcrno is required, can be gathered from
certain decisions of the Holy Office. The reason is that
the penitent might otherwise, if his crime became notorious
or public, be prosecuted by the Holy Office or the local
Ordinary. Hence he should be given a certificate of ab-
solution.20 This is all the more important, since the other
penalties are not lifted by this absolution, which refers
only to excommunication. Therefore a dispensation
from the vindictive penalties should be imparted, accord-
ing to can. 2289. z0 A layman, for instance, who held a
title or decoration or order of knighthood from the Pope,
would have lost that dignity, and" therefore a dispensation
would be required. However, it appears conformable
to the mind of the legislator that the Ordinary, who can
absolve from the heavier penalty (excommunication),
should also be entitled to dispense from the vindictive
penalty.
-
aa S. O., March 8, 1883 (Coll.
eit, n. 1566.)
23 S. O., July 30, 1806 (ib., n.
688).
24 It io hardly necessary to add
that the local Ordinary may do all
this personally. Attention may be
drawn to can. 199, 5 t, concerning
delegation; for the power mentioned
in can. 2314, 9 2, is ordinary, and
may therefore be delegated, Where-
;Ic
fore the Ordinary may habitually
delegate any priest to receive so-
called juridical abjurations before
two witnciscs. This may be done
at a synod or when issuing the so-
called faculties.
2G S. O., Jan. 3, 1640; May 7,
i8z2 (Coll. P. P., nn. 98, 770-
36 Said canon refers to can. 2236,
which requires papal dispensation.
Original from
UNIVERSITY OF WISCONSIN
284 PENALTIES
SUSPICION OF HERESY
■
■"■
Can. 2315
Suspectus de haeresi, qui monitus causam suspicionis
non removeat, actibus legitimis prohibeatur, et
dericus praeterea, repetita inutiliter monitione, sus-
pendatur a divinis; quod si intra sex menses a con-
tracta poena completos suspectus de haeresi sese non
emendaverit, habeatur tanquam haereticus, haereti-
corum poenis obnoxius.
Suspicion, in the psychological sense, is doubt, coupled
with a positive leaning to one side ; — in our case, towards
a heretical doctrine. In law it may be expressed by pre-
sumption or circumstantial evidence. It is, therefore, a
judgment formed about some one without sufficient
evidence on the ground of certain indicia.
Three kinds of suspicion are generally distinguished:
light vehement, and violent. Light suspicion admits of
no conclusion, because it is based on absolutely insuf-
ficient indicia. Vehement suspicion rests on effective
signs and conclusions. Violent suspicion amounts to
morally certain proof.1
The Decretals,3 from which the notion " suspicion of
heresy " is taken, have in view vehement suspicion, and
no doubt this is here to be understood. Light suspicion
often amounts to no more than rash judgment, whilst
violent suspicion is to be considered as a positive proof,
and therefore rather falls under can. 2314. That the
1 Suare*. De Fide, diip. XXIV, a Sec c. 14, X. U, aj; c. xo,
sect. 2, n. 1 («f. Paris., 1858, t. xa, X, V, 34.
p. 59a).
►ogle
f** ^ v iL-. Original from
UNIVERSITY OF WISCONSIN
CANON 2315 285
limits between vehement and violent suspicion cannot be
very clearly set off, is owing to the nature of circumstan-
tial evidence.
Formerly jurisprudence used to resort to an ex-
pedient which seemed to ward off vehement as well as
violent suspicion. It was the so-called purgatio canonica,
or canonically admitted proof of one's innocence of an
imputed crime. The reception of Holy Communion or
the celebration of Mass were accepted as such proofs.
But these means gave way to a more juridical means of
purging oneself of suspicion, the iuramentum purgo-
torium, an oath administered by the judge in order to
D
disperse a suspicion.8
Our canon, too, mentions a removal of heresy, or
rather of the cause that gave rise to suspicion. But
in what this removal consists, is not expressly stated.
This is quite natural, for the different cases of suspected
heresy permit a different way of removing suspicion.
The Code declares the following persons as suspect
of heresy:
1. The propagators of heresy and those who parti-
cipate with non-Catholics in divinis (Can. 2316);
2. Those who contract marriage under the condition
of having their offspring educated in a non-Catholic
sect and those who have their children baptized by non-
Catholic ministers or educated in a non-Catholic denomi-
c
nation (can. 2319) ;
3. Those who desecrate sacred hosts or species (can.
! 2320) ;
4. Those who appeal from the Pope to a general
council (can. 2332);
3 Reiffenstuel, C. V, tit 3*, n. 1 ff.
p
>Ie
Original from
UNIVERSITY OF WISCONSIN
286 PENALTIES
K. Those who remain under sentence of excommuni-
cation for more than a year (can. 2340) ;
6. Those who administer or receive the Sacraments
simoniacally (can. 2371).
As may be seen from this list, each species of sus-
picion here enumerated may be removed in a different
■
way: by formal retraction, by withdrawing the condi-
tion and complying with Catholic principles, or by pro-
testing against what was done or received, for instance,
returning the money received from simony, or giving
up the sacred species. We do not, however, hesitate to
say that the judge may in each case demand a guarantee
of genuine amendment, in fact, he should do so, unless
he is convinced of the sincerity of the penitent Neither
would the judge exceed his power if he would require
an oath or a statement in presence of two witnesses.
We now proceed to the penalties the Code inflicts on
those suspected of heresy.
a) They must, first, be warned, according to can.
2307, to remove the cause of suspicion. A reasonable
time should be granted for this purpose in the canonical
warning.
b) If the warning proves fruitless, the suspected person
must be forbidden to perform any ecclesiastical legal
acts, according to can. 2256. If he is a cleric, he must be
suspended a divinis* after a second warning has been,
left unheeded.
c) If, after the lapse of six montlis, to be reckoned
from the moment the penalty has been contracted, the
person suspected of heresy has not amended, he must be
regarded as a heretic, amenable to the penalties set forth
in can. 2514, Whilst the penalties enumerated under
4 See can. sj?9, 9 •*, n. a.
Q
"■
G] Original from
008IL UNIVERSITY QFWI5C0NSIN
CANON 2316 287
■
a
(b) arc fcrendae sententiae, to be inflicted according to
can. 2223, §3, the penalties stated under (c) are a iure
and latac sententiae.6
Note that, since the fcrendae sententiae penalties re-
quire a canonical warning and a clear statement of the
time granted, the moment from which the penalty is con-
tracted can be almost mathematically determined.
s
COOPERATION IN HERESVT
Can. 2316
Qui quoquo mode* haercsis propagationem sponte
ct scienter iuvat, aut qui communicat in divinis cum
haereticis contra praescriptum can. 1258, suspectus
de haeresi est.
This crime is singled out as a species for itself, and
the penalty is taken partly from older sources and partly
from the Bull " Apostolicae Scdis.1 n Two distinct cases
are contained in our canon, and the penalty is the same
as for those suspected of heresy.
1. Whosoever spontaneously and knoivingly assists tn
any way in the propagation of heresy, is himself sus-
pected of heresy. Under this heading fall, according to
" Apostolical Scdis, " all those who believe the errors of
heretics, or who receive, protect, and defend heretics.
There is little doubt2 that our text includes all these,
5 See can. aai7, 6 i, a. Where haercticorum ponu obnoxius, mean
the phrase similia verba indicates the same.
that though the terms a iure or lata* l L. c, tee note under can. 2314-
sententiae are not expressly used, a This seems to be indicated alto
equivalent terms, as in our canon in tbe notes of Card. Gasparri to
2315: habeatur tanquam haereticus, this canon.
►ogle
Original fro m
UNIVERSITY OF WISCONSIN
288 PENALTIES
provided, of course, they act of their own accord and
knowingly. Hence
a) Credentes are such as externally profess the errors
of heretics, e. g., by asserting that Luther or Dollinger
were correct in their views, even though they may not
know the particular errors of these leaders."
b) Receptorcs are those who receive and shelter here-
tics, especially with the intention of hiding them from
the ecclesiastical authorities.4
c) Fautores are such as favor heretics because of their
heresy, by omitting to denounce them when required or
demanded by their office, or by giving support to non-
Catholic propaganda, This latter way of propagating
heresy is followed by public and private persons who
write for heretics, praise their methods and objects, rec-
ommend their work and give it material support, always
provided that the heresy itself is the object of their
mental and material favors.8
d) Defensores means those who defend heretics for the
sake of heresy, orally, in writing, or by acts of defence
proper. All such persons are suspected of heresy if they
act of their own accord and knowingly. Sponte is opposed
to compulsion and fear, and therefore implies full deliber-
ation and a free will not hindered by any extrinsic or
intrinsic impediment, such as fear of losing an office, or
one's reputation, or customers. Scienter is opposed to
ignorance, the object of which here is heresy, and means
that these promotors or propagators of heresy must be
D
b D'Annibale, /. c, p. 34; Avail- thii was important in former times
xinf, I, c, p. 8, n. 5, who justly on account of the office of in-
observe! that they may not be quisitors; Hollweck, I. c, p. 165.
heretics if they profesi these errors s D'Annibale, /. c.f p. 24, n. 32:
only in a mechanical way. "intuitu katresis" ; Hollweck, /. c,
4 D'Annibale, /. c, p. 1a, s. 12; p. 164 f.
ogle
Original fro m
UNIVERSITY OF WISCONSIN
■
pi
p
CANON 2317
aware that they are helping heresy as such. Besides, as
iuz'are propagationem seems to imply an effective prop-
aganda, it may be said that these jaulores, etc., must pro-
duce an effect. However, this is rarely wanting if the
support is a material one.*
2. Those wfw communicate with heretics in divinis are
themselves suspect of heresy. Here we refer to can.
1258, where the necessary explanation has been given.7
3. These and all others suspected of heresy incur the
penalty stated in can. 2315.
TEACHING AND DEFENDING CONDEMNED DOCTRINES
Can. 2317
Pertinaciter docentes vel defendentes sive publice
sive privatim doctrinam, quae ab Apostolica Sede vcl
a Concilio Generali damnata quidem fuit, sed non uti
formaliter haeretica, arceantur a ministerio prae-
dicandi verbum Dei audiendive sacramentales con-
fessiones et a quolibet docendi munere, salvis aliis
poenis quas sententia darnnationis forte statuerit, vel
quas Ordinarius, post monitionem, necessaxias ad re-
parandum scandalum duxerit
This canon is a modified repetition of a passage in the
Constitution Apostolicae Scdis.1 We say modified, be-
cause the penalty of excommunication latae sentcntiae
fl Ibid, an example: those who poena lotae sententiae; item do-
contribute to non-Catholic prop- eentct vel defendtntes tanquom
aganda are guilty of cooperation. licitam praxim mtjuirendt a poen-
7 See Vol. VI of this Commen- itente nomtn complicis, prouti
tary, p. toa ff. damnata est a Bmedicto XIV.
l| II, 1: "Docentes vel defen- in Const Supremo 7. Julii 1745;
dates sive publice, sive privatim Ubi primnm a, Julii 1746; Ad
propositions at Apostolica Sede eradicandum 38. Septembris 1746."
damnatas sub excommunicationis
oogle
^ ,|,, Original from
UNIVERSITY OF WISCONSIN
290 PENALTIES
St
a
is changed into another. Besides our canon mentions
doctrine, while the aforesaid papal constitution referred
to propositions. Materially speaking there can hardly be
any difference between doctrines and propositions, except
that the former is a somewhat wider term comprising
formulated propositions as well as errors which have not
yet been cast into theses.
The text says: All who obstinately teach or either
publicly or in private defend a doctrine that has been
condemned by the Apostolic See or by mi ecumenical
council, but not as a formal heresy, are to be excluded
from the ministry of preaching the word of God or
hearing confessions, and from the office of teaching.
This in addition to the penalties which the sentence of
condemnation decrees against them and the penalties
which the Ordinary, after a due warning, may consider
necessary in order to repair the scamdal given.
1. The persons here intended are those who teach or
defend condemned doctrines. To teach means to com-
municate something to others who are ignorant thereof,
with the intention of convincing them.2 To defend sig-
nifies to take some one under one's protection, especially if
he is attacked. Hence a mere assertion, proposal or pro-
fession of a condemned doctrine would not be a defence.3
.-I
The defence, however, must be of the false doctrine
itself ; to protect a person who was condemned would not
a
be a defence in the sense of our canon.
2. A false doctrine may be taught or defended either
in public or privately. The defence is public if done in a
public place, such as a pulpit, or a school, or an open
2 Thus Hollweck, I. c, p. 166, tradere"; but this is too wide a
note 3. D'Annibale, aayi (/. c, definition.
p. 71): "docert gst, nescuntibus 1 Hell week, f. c; D'Annibale,
I, c; Peanacchi, t. c, I, 458 f.
jle
% ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 2317 291
meeting. It is private if individuals are approached in
conversation by chance or appointment. It makes no
difference whether the teaching or defending is done in
writing or orally/
3. The object of this teaching or defence must be a
doctrine condemned by the Apostolic See or by a general
council, though not as a formal heresy. By Apostolic
See, of course, is understood the whole Roman Court,
consisting of the Sacred Congregations, Tribunals, and
Offices (can. 7), more especially the Holy Office, which
is the competent judge in matters of faith. A general
council, according to can. 222, must have the Roman
Pontiff as its head.
D
The term doctrine, as already observed, is somewhat
wider than "propositions," used in the " Apostolicae
Sedis. " Propositions are brief sentences, generally
taken from the works of suspected authors, cast into the
form of a canon, and accompanied by a theological cen-
sure or note, the grading of which has become almost
stereotyped, which is a great advantage because it admits
of a precise theological-moral classification6 of objection-
able doctrines.
A proposition is liaeretica if opposed to a truth clearly
proposed by the Church as de fide.
A proposition is erronea if opposed to the theological
teaching commonly held in the Church, though not pro-
posed as de fide.
a
4 Hollweck, /. c; D'Annibale, exercises more influence than a
/. c. p. 71. Public may also im- private person.
ply a person in a public capacity, B Se# Franielin, S. J., Tractalus
find private a person in private de Dhnna Traditions et Scriptura,
position, although this significance cd. 4, 1896, p. 141 ff.t sect. II,
is not directly intended in the scholion to thes. XII; Pennacchi,
text; but neither is it excluded, I, 149 ff.
for, as a rule, a public person
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
292 PENALTIES
St
A propositio tetneraria differs from an erronea only in
degree ; it is less offensive than an erroneous proposition
because less repugnant to the teaching of the Church.8
A proposition is called male sonans if its wording may
be taken in a good sense, yet, according to common par-
-
lance within the Church, sounds very suspicious.7
Piarum aurium offetisiva is a proposition which is
opposed to the common belief or sentiment of the faith-
ful.
s
We may safely say that all these propositions, — with
the exception of haeretica, which belongs to heresy proper,
— are included in the text. But as the term doctrine is
employed, it should be clearly understood that, when a
doctrinal system as such, like Modernism, is condemned,
no specific propositions need be mentioned as con-
demned.
E
In chronological 8 order the following propositions and
doctrines fall under can. 2317:
a) The errors of Wiclif and Hus, as censured in the
Constitution of Martin V, "Inter cunctas," of Feb. 22,
£ 1418;
b) The errors of Luther — in so far as they are not
formally heretical — as condemned by Leo X, " Ex surge
Domine," of June 15, 1520;
c) The proposition condemned by Clement VIII, June
20, 1602, styling as false, rash, and scandalous the as-
sertion that confession and absolution could be made by
letter or message;
d) The 45 propositions condemned by the Holy Office
in its decrees of Sept. 24, 1665 and March 18, 1666;
P
« Cfr. "Auctorem fidei," prop. 8 See Avanzini, J. c, p. 117 ff.;
36. they are also found in Dcnzinger'*
T Ibid., prop- 44. 45- Enchiridion.
oogle
Original fro rn
UNIVERSITY OF WISCONSIN
CANON 2317 293
e) The 65 propositions condemned by the Holy Office
on March 4, 1679, as " scandalous and pernicious in
practice w ;
f) The 68 propositions of Michael de Molinos, con-
demned by the Constitution of Innocent XI, " Coelestis
Pater," of Nov. 20, 1687, partly as heretical, partly as
suspected, erroneous, scandalous, etc. ;
g) One proposition condemned by Alexander VIII,
Aug. 24, 1690, and 31 condemned by the same Pope, Dec.
t 7*1690;
h) The 101 propositions of Paschasius Quesnel, con-
demned by Gement XI, in the Bull " Unigenitus, " Sept.
8, 1713 and again in the " Past oralis Officii/' Aug. 28,
I 1718;
i) Five propositions condemned by Benedict XIV,
" Detestabiletn," Nov. 10, 1752;
k) 85 propositions of the Synod of Pistoja, condemned
by Pius VI, "Auctorem fidei, " Aug. 28, 1894;
1) Finally, the errors of the Modernists, in so far as
they are not formally heretical.9
The errors censured in the Syllabus of Pius IX and
Pius X's " LamentabUi " must be judged according to the
censure attached to each.10
4) The penalties attached to the transgression of this
law, for clergymen, consists in the withdrazval of their
faculties. Laymen guilty of this delinquency must be re-
moved from the teaching office (a quolibct docendi
i> Pius X, " Pratstantia Scrip- omits from his notes, — the question
turae," Nov. 18, 1907 {Anal. Eccl., whether it i- a dogmatic definition
XV, 435); "Sacrorum Antitiitum," belongs to the theologians; here
Sept. 1, 1910 {A. Af>. S., IIf 701 tt enters only in as far as a doc-
ff.). trine condemned by the Apostolic
10 Concerning the Syllabus of See is concerned.
Pius IX, — which Card. Gasparri
"-.
oogle
v ,|rt Original from
UNIVERSITY OF WISCONSIN
■
294 PENALTIES
munere), which includes all professorships in schools,
colleges, universities, etc.
The clause " salvis aliis poenis quas sententia dam-
nationis forte statuerit " concerns the future, not the past.
The " Exsurge Domine" of Leo X (§4) enumerates
several such penalties, and the Motu proprio of Pius X,
" Pracstanlia scripturae," contains the same clause in
almost identical words. But these penalties must be con-
sidered as abrogated, according to can. 6, n. 5, otherwise
there would be a flagrant contradiction, and hence
statuerit must be taken as the future.
If the Ordinary deems it necessary to add other pen-
alties, he must first issue an admonition, according to
canons 2143 and 2309. He is not obliged to inflict other
penalties, but may do so if he deems it expedient (see
can. 2223).
PENALTIES IN REGARD TO FORBIDDEN BOOKS
Can. 2318
—
§ 1. In excommunication em Sedi Apostolicae spe-
ciali modo reservatam ipso facto incurrunt, opere
public! iuris facto, editores librorura apostatarum,
haereticorum et schismaticorum, qui apostasiam,
haeresim, schisma propugnant, itemque eosdem libros
aliosve per apostolicas litteras nominatim prohibitos
defendentes aut scienter sine debita licentia legentes
vel retinentes.
§ a. Auctores ct editores qui sine debita licentia
sacrarum Scripturarum libros vel earum adnotationes
aut commentarios imprimi curant, incidunt ipso facto
in excommunicationem nemini reservatam.
ogle
£ ~ ^ ^ ,L» Original fro m
UNIVERSITY OF WISCONSIN
-
CANON 2318 295
§ 1. Those who publish books written by apostates,
heretics, or schismatics, incur the excommunication re-
served spcciali modo to the Holy See, after tlie book has
been effectvvely published. The same penalty is hicurred
by those who defend suck books or others nominally for-
bidden by Apostolic letter, or who knowingly read or re-
tain them wiihout due permission.
§ 2. Authors and publishers who print books of Sacred
Scripture, or annotations and commentaries thereon, with-
out due permission, incur the excommunication reserved
to no one. After what was said elsewhere 1 a few re-
marks may suffice.
1. The persons who incur this penalty are:
a) The editores of the books named, by which term are
to be understood the author himself as well as the pub-
lisher, but not the printers and their co-workers. The
editors, whether they undertake the publication in their
own name, or under an assumed name, or anonymously,
incur the penalty only after the edition is complete and
for sale, opere publici iuris facto.
b) Those who defend2 books forbidden under this
canon or read or retain them without the necessary per-
mission and knowingly, *". e., being aware that they are
forbidden.
2. The books forbidden here under the penalty stated in
§1, are those of apostates, heretics, and schismatics, which
not merely propose, but defend apostasy, heresy, or
schism. The defence may concern only one heretical
doctrine. The term " book " must here be strictly in-
terpreted and hence can. 1384, § 2 cannot be applied.
1 See Vol. VI of this Commen- protecting the book from being
tary, p. 428 ff. destroyed or given up; Eichmann,
2 Br defending the contents, or I. c, p. 13a.
od by GoOgle
% ,.] , Original fro m
UNIVERSITY OF WISCONSIN
296 PENALTIES
Consequently pamphlets, magazines, leaflets, papers, etc.,
are not comprised under this penal sanction. Besides,
the " books " must be forbidden by Apostolic letter,
wherefore decrees of the Holy Office or any other S. Con-
gregation forbidding certain books do not fall under this
heading, even though the decree may have been issued
" facto vcrbo cum SStno." On the other hand it does not
matter whether these Apostolic letters are issued in the
form of a brief, or bull or encyclical letter, or any other.
3. The penalty is excommunication reserved speciali
modo to the Apostolic See ; it is incurred ipso facto, i. e.,
by the fact of having published such a forbidden book,
or defended, read, or retained it, according to the ex-
planation given in Title XXIII, Book III.
Here it may be added that the Ordinary may, in virtue
of can. 1402, grant permission to read and retain books
forbidden by common law (can. 1399) or by a decree
of the Apostolic See (Holy Office), but he cannot grant
permission to read and retain books forbidden by Apos-
tolic letter.
§ 2. Another category of books is mentioned in § 2 of
can. 2318: the authors and publishers of books of
Sacred Scripture or of annotations and commentaries
thereon,8 if printed without due permission.* All these
incur excommunication reserved to no one, from which
any confessor may absolve, according to can. 2253, i°.
MIXED MARRIAGES AND NON-CATHOLIC EDUCATION
Can. 2319
§ 1. Sub sunt excommunicationi lataef sententiae
Ordinario reservatae catholici:
8 Cfr. can. 1385, 5 1 . n. 1 ; 1391: 4 This means to have them
1399; 1400. printed for publication or sale, not
>Ie
Original fro m
UNIVERSITY OF WISCONSIN
-
■
pi
Q
CANON 2319 297
l°. Qui matrimonium ineunt coram ministro acatho-
lico contra praescriptum can. 1063, § 1;
a0. Qui matrimonio uniuntur cum pacto explicito
vcl implicito ut omnis vel aliqua proles educetur extra
catholicam Ecclesiam;
3°. Qui scienter liberos suos acatholicis ministris
baptizandos offerre praesumunt;
40. Parent es vel parentum locum tenentes qui
liberos in religione acathoiica educandos vel institu-
endos scienter tradunt.
§a. It de quibus in § 1, nn. 2-4, sunt praeterea sus-
pecti de haeresL
This canon states four different cases, all of which have
to do with family life in relation to the Catholic faith.
Common to all four is the penalty of ex communication
Uiiac sententiae, reserved to the Ordinary, Three of
them, besides, fall under the suspicion of heresy, which
must be judged according to can. 2316.
1. Those who contract marriage before a non-Catholic
nrinister, against can. 1063, §1, incur the aforesaid ex-
communication, but do not become suspected of heresy.
It is, of course, immaterial whether one or both parties
belong to the Catholic faith. For the rest, we refer to
can. 1063 and its explanation.
2, Those who contract marriage with the implied or
express agreement that ail or some of the children shall
be educated outside the Catholic Church, incur the afore-
said excommunication and, besides, are suspected of
heresy. This crime is against can. 1061, §1, n. z, which
requires a promise that all the offspring shall be
for one's own use; in the latter case, the censure would not be incurred.
oogl
Original fro m
UNIVERSITY OF WISCONSIN
298 PENALTIES
educated in the Catholic Church in case of a mixed
marriage. Of course, if two Catholics should marry
under the same condition, they, too, would incur the
penalty.
The text mentions a twofold agreement (pactum), one
express and the other implied. Express contracts or
agreements are those the terms of which are openly
uttered and avowed at the time of the making. Implied
are such as reason and justice dictate, and which, there-
fore, the law presumes that every man undertakes to
perform, and upon this presumption makes him answer-
able to those who suffer from his non-performance.
This distinction refers only to the mode of proof.1
Yet it will serve our purpose; for the agreement must
be either a legal or an informal one, i. e., a mutual promise
or consent by two or more persons. An express agree-
ment would be one made in legal and written terms, as the
so-called reversals usually are. An implied contract
would be an agreement or promise made by one of the
parties to comply with the conditions, though iniquitous,
of the civil law that the boys should follow the religion
of the father and the girls that of the mother.*
A mere reluctant silence on the part of the Catholic
party, inspired by the desire not to cause a disturbance,
could not be styled an agreement. On the other hand,
regret after the promise was made would not save the
Catholic party from incurring the censure. Neither
would the promise made to have only the first-born boy
educated in a non-Catholic sect offset the effects of this
canon. Finally, it may be observed that the text says:
1 See Hnrriman, Contracts, 190*. March »s, 1830 {Coll. P. F.t n.
J II. 811).
»Fius VIII, "Litteris atttro,"
oogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2319 299
a
a
" extra cathoUcam Eeclesiam, " which implies total ex-
clusion of the Catholic religion and its principles. It in-
volves either omission of Catholic education, i. c, in-
differentism, or a positively sectarian or infidel train-
ing.
30. Those who knowingly dare to offer their children
to non-Catholic ministers for baptism incur excommuni-
cation reserved to the Ordinary and, besides, are sus-
pected of heresy.
a) Here the parents are intended, because the text
says : " sues liberos" their children. Therefore, if a
midwife or nurse should commit this crime without the
knowledge of the parents, the latter would not be subject
to this penalty. On the other hand, the word " suos"
cannot be interpreted as if the parents would not incur
the penalty if they commanded or even permitted such an
act. Here Regula Iuris 72 in 6° finds application:
" What one does through another, is as if he did it him-
self. " Can. 2209, §3, also applies and consequently the
cooperation must be judged according to this canon. But
a nurse or midwife would not incur the penalty, even
though she was guilty of such an unqualified interference
with parental rights of her own accord.
b) The words "scienter praesumpscrint " must
be interpreted according to can. 2229, §2. Therefore any
notable lessening of responsibility, either on the part of
the intellect or of the will, would render one immune
from incurring the penalty latae sententiae. A case to
the point is that mentioned in a decision of the Holy
Office.3 Some Irish mothers, for fear of pecuniary
fines, had presented their children to Protestant ministers.
They committed a grievous sin, but did not incur the
» S. O., Nov. 39, 167;*, ad 3 {Coil. P. F., n. 205).
>Ic
f^ ^ t %\s* Original fro ni
UNIVERSITY OF WISCONSIN
3°o
PENALTIES
-
■
penalty stated in our canon.4 If the parents were de-
ceived as to the true denomination of an intruding
sectarian, imputability would be wanting, and conse-
quently the penalty would not be incurred.
4. Parents or those who hold their place, if they know-
ingly offer children to be educated or brought up in a
non-Catholic denomination, incur the aforesaid penalty
of excommunication and are suspected of heresy.
a) Here not only parents, but also guardians or tutors,
are included. It is irrelevant whether the guardians are
legally appointed, or have assumed authority over the
children of their own accord, or with the connivance and
approval of the parents-
fa ) The act which is here declared punishable, is that
of educating or bringing up the child in a non-Catholic
religion. This may be done either in sectarian schools,
properly so-called, or by means of private tutors and
teachers, either systematically or without method. The
public schools of our country are not supposed to be
sectarian.
c) The adverb scienter presupposes that the anti-
Catholic tendency of the school or teacher was known to
the parent or guardian.6
4 Wc know of tricks played on
poor Italian mothers by unscrup-
ulous proselytizing ministers, who
offered twenty lire to be allowed
to baptize a baby.
0 See can. 2239, 8 2.
oogle
Original from
UNIVERSITY OF WISCONSIN
■
pi
TITLE XII
CRIMES AGAINST RELIGION
The delinquencies enumerated in this title are directed
partly against the Catholic faith and partly against the
religious sentiments common to all whose religious and,
we might add, natural instincts are not entirely perverted.
All of them offend against the inborn respect of the faith-
ful for the sacred things which are closely connected with
religion.
DESECRATION OF CONSECRATED SPECIES
c
.
Can. 2320
Qui species consecratas abiecerit vel ad malum
fincm abduxerit aut retinuerit, est suspectus de hae-
rcsi ; incurrit in. excommunicationem latae sententiae
special issimo modo Sedi Apostolicae rescrvatam; est
ipso facto infamis, et clericus praeterea est depo-
nendus.
The crime here mentioned was perpetrated by fanatics
imbued with the heretical tendencies of the Manichjeans,
against whom the papal inquisitors proceeded severely,
but not without encountering difficulties on the part of
some Catholics. These outcasts abused the sacred hosts
for magic and diabolical purposes, trying them on prod-
ucts and animals.1 But the Inquisition alone could not
1 Hadrian VI, " Dudum," July 20, 1532 (Bull. Luxemb., 1727, I, 635).
301
f^ VC UNIVERSIHOFWISCONSIN
302
PENALTIES
N
■
eradicate this evil. Hence the popes decreed severe pen-
alties against all such malefactors of whatever dignity,
condition, or age, provided they had attained the twentieth
year.2 The penalty of being delivered to the secular au-
thority, which generally inflicted capital punishment, was
at first condoned if the culprits confessed the crime
of their own accord. But Clement XIII abolished this
mitigation.8 Clerics were formerly degraded and
then delivered up to the secular power. Our Code decrees
as follows : Whoever throws away the sacred species, or
carries them envoy for evil purposes, or retains them, is
suspected of heresy, incurs excommunication latae sen-
tentiae, reserved modo specialissimo to the Apostolic See;
he is ipso facto inf amicus, and, if a cleric, sltall be
deposed.
In explaining this canon we shall follow the Consti-
tution of Benedict XIV.
1. Whoever (qui) means any person, layman or ecclesi-
astic, of the highest as well as lowest rank or dignity, and
no privilege, exemption, or indult shall protect one guilty
of such a crime.4
2, The text says, furthermore, that the crime must be
committed with consecrated species. The aforesaid Con-
stitution mentioned sacred hosts, thereby intimating that
consecrated wine, ♦. e., the Sacred Blood, is not so easily
exposed to sacrilege. Our text includes both bread and
wine, provided they are consecrated. When consecra-
tion may be legitimately presumed, Benedict XIV de-
a Innocent XI, "Ad ncstri Apos
tolatus," March la, 1677; Alex
arder VITI, "Cum alias," Dec. *■
1690, embodied in Bcned. XIV
"Ab anytutissimo," March 5, 1744
5 "Gravissimum" March 6, 1759
fi 6 (Continuatio Bull, td. Pratt,
184a, I, 114).
* From this excommunication are
exempted cardinals, but not bish-
ops; see can. 2227, 9 3.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 2320 303
scribes as follows : if hosts or particles are preserved in
a repository, tabernacle, pyxis, or ostensorium, the legal
presumption is that they are consecrated. The same pre-
sumption holds if a communicant should take a particle
of the host out of his mouth after Holy Communion.
Against this presumption conclusive and evident proofs
are admitted, which means that at least two first-class
sworn witnesses must prove the contrary, viz., that the
hosts were not consecrated. Such a proof, unless the
minister who presumptively consecrated the sacred species
should testify under oath to the contrary, could hardly be
furnished; and therefore the presumption might just as
well be called iuris et de iure*
3. The acts by which this penalty is incurred are de-
scribed as: abiicere, abducere, retincre. The first des-
ignates the act of intentional throwing away or spitting
out. Accidental vomiting, sickly or sudden jerking or
coughing does not, of course, constitute irreverence. The
second term (abducere) denotes a carrying away
of the sacred host, either violently (by robbery) or
secretly, together with the sacred vessels or without them.
The sacred species may be retained in places where they
should not be kept, ♦. e., in private homes, on one's own
person, always supposing that this, like abducere, is done
for an evil purpose. For the abiicere no evil purpose is
required; the act alone is sufficient to constitute the
crime in question. An evil purpose is legally presumed
if the sacred species are carried away or retained. If
these two acts are proved it is not necessary to prove
p
B See cm. 1835 f. masons, etc., or if they were used
8 The purpose would also be evil for superstitiom purposes, for
if the sacred species were stolen or witchcraft or magic; Hadrian VI,
retained in order to hand them "Dudum."
over to heretics, infidels, Free-
>Ie
( " ^ , ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
pi
Q
304 PENALTIES
the bad intention.8 Therefore the defendant himself
must prove conclusively that he had no bad intention.
Thus Benedict XIV in the aforesaid Constitution.
4. The penalties are somewhat mitigated, inasmuch as
the delivering up of the culprit to the secular arm is not
mentioned, and degradation (in case of clergymen) is
changed into deposition ferendae scntentiae. The
infamy mentioned in our Canon is that of law (infamia
iuris), with all the effects mentioned in can. 2294, §1.
VIOLATION OF THE LAWS OF BINATION AND FASTING
Can. 232 1
Sacerdotes qui contra praescripta can, 806, § 1, 808
praesumpserint Missam eodem die iterare vel earn
celebrare non ieiuni, suspendantur a Missae celebra-
tione ad tempus ab Ordinario secundum diversa rerum
adiuncta praefiniendum.
Priests who dare to say Mass twice a day against tlie
riding of can. 806, §1, or who presumptuously say Mass
without fasting, contrary to can. 808, should be suspended
by the Ordinary from saying Mass for a time, the dur-
ation of which should be determined by circumstances.
Enough has been said concerning bination and fasting
in connection with previous canons. As to the penal
character, we may add :
l°. The term presumption is attached to both trans-
gressions, and consequently can. 2229, §2 must be here
applied. Any reason, therefore, of (not affected) igno-
ranee, or fear, or physical incapacity, would diminish im-
putability. Rut since the penalty is not latae sentential,
these reasons do not entirely exempt one from incurring
it. One decision of the Holy Office indeed reads that
*Ie
j ^ Original from
UNIVERSITY OF WISCONSIN
■
CANON 2322 305
fear of scandal or astonishment would not justify a
priest in saying a second Mass if he had broken the
fast.1 However, since our text expressly adds the term
praesumpserint, it evidently admits a diminution of im-
putability and implies that the transgression must be a
rash one.
2°. Suspension, even though only temporary, belongs to
the class of vindictive penalties (can. 2298, n. 2), and
consequently requires a judiciary procedure.2 Its
duration is to be measured by circumstances. These
may be serious, on account of scandal or bad example, but
may also depend on the need of priests, local conditions,
etc.8
SAYING MASS AND HEARING CONFESSIONS BY PERSONS
NOT PRIESTS
Can. 2322
Ad ordinem sacerdotalem non promotus:
i°. Si Missae celebrationem simulaverit aut sacra-
mentalem confessionem exceperit, excommunica-
tionem ipso facto contrahit. speciali modo Sedi Aposto-
licae reservatam; et insuper laicus quidem privetur
pensione aut munere, si quod habeat in Ecclesia,
aliisquc poenis pro. gravitate culpae puniatur ; clericus
vero deponatur;
a°. Si alia rnunia sacerdotalia usurpaverit, ab
Ordinario pro gravitate culpae puniatur.
Persons not in sacerdotal orders, who pretend to say
Mass or hear sacramental confession, ipso facto incur
ttie excommunication reserved speciali modo to the
Apostolic See.
1 S. O., Dec. 3, 1874 (Coll. P. P., a If aYarice were the motive of
n. 14^5)* form a reason for suspension ex
2 Can. 1933, 9 4; however, it may informata conscientia.
% , ,1 » Original from
lOOglt. UNIVERSITY OF WISCONSIN
306 PENALTIES
A layman performing such acts must, besides, be de-
prived of any pensions and offices he may hold in the
Church, and be punished with other penalties, accord-
%ng to the gravity of tfie crime; a cleric is to be
deposed.
Benedict XIV, in his Constitution u Saccrdos in
aetcrnum" mentions several papal documents (of Paul
IV, Sixrus V, Cement VIII, and Urban VIII) which
contain penalties decreed against such atrocious sacrileges.
It is a usurpation of the highest power given to man,
and is deservedly punished with great severity, not
only with excommunication, but also with the delivery
of the culprit to the secular arm, and degradation.1 Our
Code has modified the penalties according to the ex-
igencies of the times.
i°. The persons intended here are all who have never
been promoted to the order of the priesthood. Hence all
laymen who are not of the clerical rank, as well as all
clerics from the first tonsure to deaconship, inclusively.
The question may arise: How are we to prove that
one is not of the priestly order? This, according to the
aforesaid Constitution of Benedict XIV, may be settled
by demanding of the incriminated person the testimonials
of his ordination. For, according to our Code, can.
ioio, §2, every cleric must be given a paper certifying the
order he has received. Besides, the episcopal court must
keep the records. Consequently, information, even in
a private or confidential (i. c., extrajudicial way) may
furnish the necessary proof for ordination required in
our case. If no such written proof could be found, at
least two witnesses would have to testify under oath to
p
bi nation, or intemperance of brealc- 1 Of these, Belied. XIV, "Quam
ing the fast, the circumstances grave*' Aug. a, >7S7» treats in
would be serious. exttnso.
Go >gle
Original from
UNIVERSITY OF WISCONSIN
CANON 2322 307
the ordination or the fact that the defendant is a priest. a
3°, The acts here punished are two: pretending to say
Mass and hearing sacramental confession.
a) Simulatio is an act by which one pretends to be
what he is not. A Mass said by any person lacking the
priestly power is no Mass at all, 8 no matter whether
the person has the intention to say Mass or not. How-
ever, as Benedict XIV says, the sacrilegious act must
have proceeded at least as far as the elevation of the
host and chalice, or one of these acts inclusively.
Whether or not the words of consecration were pro-
nounced does not matter. Neither does it constitute a
diminution of criminal imputability if Mass was said
only once.
b) Hearing sacramental confession is also included in
our canon. The text does not say : simidaverit; hence
the mere act of hearing sacramental confession is suf-
ficient to constitute the crime. What is a sacramental
confession? It is the penitent's accusation of his sins
made to a competent priest in order to obtain absolu-
tion. A confession made for the sake of obtaining con-
solation or counsel would not be sacramental, nor would
it be sacramental if the penitent knew that the person to
whom he made his confession lacked the priestly char-
acter. * But the formula of absolution need not be pro-
nounced. °
2 Whether an invalidly ordained sine interna voluntatc el inten-
priest would incur this censure, tione." But hero the intention u
is not quite certain; hence the lacking objectively or fundament,
benefit of doubt may at least be ally, not subjectively, at least not
admitted in favor of non-incur- in recto.
rcocc * Aircgui, Summorium Theological
3 See Lehmkuhl, /. c, II, n. Moralis, 1919, ed 4, p. 367.
44:" fictum esse actum. Qui extern* 6 liencd. XIV, " Sacerios in at-
Ua Ponatur, ac si omnia ad valorem ternum," 9 8.
rcquisita adsint, sed animo, zeu
oogle
/""* ^ % ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
308 PENALTIES
40. The penalties inflicted are: (a) excommunication
Ictae sententiae reserved spcciali modo to the Holy See.
The phrase here is not accompanied by any extenuating
or modifying word, such as praesumpserit, scienter, etc.;
(b) all the other penalties are ferendae sententiae. This
is also true of the punishments to be inflicted arbitrarily,
i. e.r proportionately to the seriousness of the criminal act,
when persons who are not priests usurp the exercise of
other priestly functions. Of this kind would be bless-
ings reserved to priests if given by laymen. •
BLASPHEMY AND PERJURY
Can. 2323
Qui blasphemaverit vel periurium extra iudicium
commiserit, prudenti Ordinarii arbitrio puniatur,
maxime clericus.
Whoever blasphemes or commits perjury, outside of
an ecclesiastical trial, may be punished according to the
prudent judgment of tlxe Ordinary, especially if the
culprit is a cleric.
Two religious crimes, blasphemy and perjury, are here
connected, because both are an offense against the imme-
diate object of religion.
I. Blasphemy is defined as contumelious speech against
God. It is heretical if His existence or His attributes
are impugned or denied. It is simple if the con-
tumelious utterance consists of mere imprecations.
Blasphemous words may also be uttered against the
Saints, because, as God is praised in his Saints, so also
• See can. 1147. 8 3: »34*. J *•
>ogle
f^ ^ s ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2323 309
may He be blasphemed in his Saints.1 But it is contro-
versial among theologians whether blasphemy, in the
proper sense, can be committed by gestures, signs, or acts,
for instance, spitting against heaven, treading on the
crucifix, etc.2
a) Our text appears to include every species of con-
tumelious utterance, whether by speech or gesture, pro-
vided the intention of blaspheming can be deduced from
the act according to the common usage of the people
and country.8 An indication may be found in the ex-
pression "absque contumelic Creatoris," which doubt-
lessy includes gestures and acts.
b) The penalty is left to the Ordinary, who may decree
a public penance or any other ecclesiastical penalty, pro-
vided, of course, the offense was an external and a public
act.* For although it is not essential to the notion of
crime that it be public, yet a public penance could not be
imposed for an occult crime.
Heretical blasphemy belongs exclusively 5 to the ecclesi-
astical court. Simple blasphemy belongs to the mixed
forum, t. e., the ecclesiastical as well as the secular courts
may prosecute it. In England and in most of the United
States blasphemy is still a statutory crime, but prosecutions
for the offence have become very rare.6
2. Perjury is here understood as the contrary of an
oath, and, therefore, a violation of truthfulness as well
as a breach of a promise made under oath (see can.
1 C. a, X, V, 26; Reiffenstuel, /. ft» P. 136; «c also Rom. II, 14;
ib.t a. 15. I Tim. VI, 1; Tit. II, 5.
2 C. 2 just quoted only mentions: * Cf r. can. 1933, f 1; can. 2312,
linguam in blasphemitm relaxare; 9 2'% lor former penalties, see c. 2,
thus also S. Thorn.. IMI. q. 13. X, V, 26; Pius V. " Cum frimum,"
art a; Ball erini-P aim ieri, I. c, April 1, 1566, | 33.
II, n. 370. 6 Reiffenetucl, V, j6, n. 37.
a Thus Hollweclc, /. c, p. 193; e iBlackstone-Cooley, Commtn-
Airegui, /. c, n. 202; Eichotann,
►ogle
, ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
310 PENALTIES
1316 ff). There is no doubt that both kinds of perjury
are here included and intended, provided only that the
oath be extrajudicial , i. c, not taken with reference to an
ecclesiastical trial.
Experts, witnesses, counsel, proxy, judges, who take
the oath before or at the trial, therefore, are punishable
in case of perjury according to can. 1743, §3 ; 1757, §2, n.
1; I795> §2- Any other perjury, committed either by
private persons or officials, except in reference to an
ecclesiastical trial, is also punishable. If it occurs in a
secular court, and the latter metes out a sufficient penalty,
the ecclesiastical court may be satisfied.7 The secular
courts punish perjury if at least two trustworthy wit-
nesses attest the falsity of the perjured statement.* This
procedure may serve as a norm for Ordinaries in pro-
ceeding against perjurers. The penalty, being vindictive,
requires some sort of judiciary trial.
Clerics should, of course, be tried in the ecclesiastical
court and be punished more severely than laymen.
Formerly penalties against laymen guilty of perjury
were of varying severity. Thus a fast of forty days
on bread and water, and seven years of ordinary penance,
which meant at least two fast-days a week, were to be
meted out according to a Pseudo-Fabian decree.0 Clergy-
men were to be deposed, and in case of obstinacy,
degraded.10 These severe penalties show how the
Church abhors this crime, which is not only ar. offense
against religion, but undermines public trust and con-
fidence.
tarits, IV, 59; New International 0 C. 18, C 6, q. 1.
Encyclopedia, 1904, Vol. Ill, 163. 10 C. 7, Diss. 50; c. 9, C 3, q.
T Can. 1933, I 3. 5; c. 10, X, II, x.
8 Kenny-Webb, Outlines of
Criminal Lotv, p. a 80 ff.
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2324 311
TRAFFICKING IN MASS STIPENDS AND DEFRAUDATION
Can. 2324
Qui deliquerint contra pracscriptum can. 827, 828,
840, § 1, ab Ordinario pro gravitate culpae puniantur,
non cxclusa, si res ferat, suspensione aut beneficii vel
officii ecclesiastic! privationc, vel, si de laicis agatur,
excommunicatione.
What canons 827, 828, 840, §i, forbid has been
explained elsewhere,1 and we have nothing to retract
We only add that (a) every species of trafficking in
Mass stipends, (b) every curtailment of the number
of Masses offered and accepted, (c) every fraudulent
subtraction from the alms given for Masses when send-
ing the intentions to others, is here included. The
penalty is left to the judgment of the Ordinary, who
sliall take into consideration the seriousness' of each case,
especially the number and amount of stipends, the
scandal given, and whether or not the culprit is a habitual
orlender. If the case is important and the transgressor
is a clergyman, suspension or privation of benefice or
ecclesiastical office would not be an exorbitant penalty.
Hence the Ordinary could suspend the clergyman from
both office and benefice. But the vindictive penalty of
privation could only be either of benefice or of office, not
of both together. Laymen who transgress these laws,
e.g., booksellers and other merchants, can be punished
by excommunication.
What we said elsewhere 2 concerning pious frauds we
Q
1 See Vol. IV of this Comment- * See Vol. VI of this Commen-
ary, p. 186 ff. tarj>, p. 614, note x.
odbyG jle
Original fro m
UNIVERSITY OF WISCONSIN
312 PENALTIES
here repeat, but with a restriction. If $100 are offered
for Masses, without any further determination, ioo
Masses must be said; neither would the priest satisfy
his obligation if he said or sang twenty high Masses of
his own accord. Only in case of a parish — this is our
restriction — where the priest sin^s a Mass every day of
the week and the donors know that the ordinary stipend
for such a Mass is five dollars, might the priest be
justified in saying only twenty Masses for $100.
SUPERSTITION AND SACRILEGE
■
Can. 2325
Qui superstitionem exercuerit vel sacrilegium pcr-
petraverit, pro gravitate culpae ab Ordinario puniatur,
salvis poenis iure statutis contra aliquos actus super-
ttitiosos vel sacrilegia.
Whoever practices superstition or perpetrates a
sacrilege, shall be punished by the Ordinary in propor-
tion to the gravity of the offense. The penalties pro-
vided by law against certain superstitious acts and
sacrileges are not touched by this canon.
I. Superstition is defined by St. Thomas ■ as an excess
of religious worship or a vicious, ignorant, and abnormal
form of belief and practice. Our canon considers not
so much the speculative or purely mental excess as its
practical expression, i. e., superstitious observance. This
may be defined as an inadequate means to produce
certain effects in a more or less preternatural way,
generally by invoking the assistance of creatures or the
iSumma Theol.. II-II, q. u.-, ait. 1; S. C. P. F.. Feb. 9, 1760 (Col'
n. 4*4).
jle
^ ,1,, Original from
UNIVERSITY OF WISCONSIN
CANON 2325
313
■
powers of darkness. In the Decretals 2 a special title
was devoted to this subject under the name of sortilegia.
This is subsumed under divination or manifestation of
secret and hidden things by means of signs and with the
help of demons. A long Hst of various species, divided
according to the signs or means employed, is given
by the commentators: geomantia, if the earth was
consulted, aeromantia, if the air; hydromantia, if water;
pyromantia, if fire; haruspicium, if the entrails of
animals; anspicium, if the flight of birds; augurium, if
the twittering and chirping of birds; pedomantia, if the
feet, and chiromantia, if the hands were inspected;
omina, if the voices of men; onyrocritica, if dreams;
physiognomia, if the whole body was inspected;
spatulamantia if the spatula; a metoposcopia, if the fore-
head; pythonia, if the demon tells something through
living men who are his tools ; necromania, if dead bodies
are consulted; astrologia, if heavenly bodies are observed,
not in a scientific, but superstitious way. We quote these
names to show that the number of fools has not yet
decreased. For all these forms of witchcraft, sorcery,
magic, etc., are more or less practiced to-day by
Spiritists. We may include here the use of the ouija
board, unless it is handled for mere pastime — a most
dangerous diversion* Also certain medical practices
which promise health to those who use certain signs or
apply certain herbs in a specified way. As to hypnotism,
-
-
2 Lib. V, tit. 31 ; see the com*
men tat or s on the same, especially
Reiffenatuel and Schmalzgrueber.
0 The term ia not quite clear;
* in spatula dinner* " (Du Cange,
Giossanum, VI, 632) seems to
signify to divine from the shoulder
or hips or brawn of a pic.
4 Sec the works of J. Godfrey
Raupert: Modem Spiritism, I he
Dangers of Spiritualism. The New
Black Magic (last chapter on the
Ouija Board); J. Liljencrants,
Spiritism and Religion; T. F.
Coakley, Spiritism, the Modem
Satanism; Lapponi-Gibha, Hypno-
tism and Spiritism, 1915.
'le
Original fro m
UNIVERSITY OF WISCONSIN
3i4 PENALTIES
St
it is not forbidden in itself, nor can it be styled a super-
stitious observance if practiced by scientific and con-
scientious physicians, and if no extraordinary effects are
expected or promised. The penalty for these trans-
gressions is arbitrary, but must be inflicted according to
the rules laid down in can. 2223.
2. Sacrilege is a violation of sacred things, i. e., things
destined for divine worship either by consecration or
blessing (can. 1497, §2). It is personal, if a sacred
person is violated externally ; B local, if a sacred place is
subjected to irreverence or scorn, such as suffices to des-
ecrate a holy place (can. 1154) ; real, if sacred things
are violated, such as the sacred species, consecrated
utensils or images, etc
3. All these sacrileges are here intended. The pen-
alty is left to the Ordinary, though, as our canon says,
the penalty for crimes specified in the Code remains
intact, c. g.:
a) Personal sacrilege against clerics is procecuted by
our Code in can. 2241, 2243, as far as the clerical priv-
ileges are concerned. The sacrilegium carnale is
punished, especially as far as illicit or invalid marriage
is.concerned, in can. 2358, 2388.
b) Sacrilegium locale is especially punished in can.
2320, 2328, 2329. But the his asyli is no longer 6 pros-
ecuted by a special penalty, and therefore the first clause
only of our canon takes effect;
c) Sacrilegium reale has special punishments assigned
to it in can. 2320, 2345, 2346 (ecclesiastical property).
The clause " salvis poenis," etc., means that the Ordinary
should not inflict arbitrary punishment. He may, but
B External action is required in " Immunitatem atyli eccUsi**ttci,
order to constitute a crime; can. gush temerario, violate iubentet out
2195, 5 1. vioiantes"; (exc. lata* ttnt. R. P.
« "Apostolical Sedis." n. 18; rtservota).
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
-'
Q
CANON 2326 315
is not bound to punish in cases where the law has not
provided a special penalty.
TRADING IN FALSE RELICS
Can. 2326
Qui falsas reliquias conficit, aut scienter vendit, di-
stribuit vel publicae fldelium venerationi exponit, ipso
facto excommunicationem Ordinario reservatam con-
trahit
Those who manufacture false relics or knowingly sell
or distribute them or have them exposed to the
public veneration of tlie faithful, ipso facto incur ex-
communication reserved to the Ordinary,
The preliminary questions as to the authenticity of
relics have been explained under can. 1283-1285. No
doubt the sad experiences made in Italy, especially since
1870, contributed to the making of this penal canon.
1. Manufacturers of relics are persons who make
relics of common bones or other things pertaining to the
Saints.1 It does not matter whether these relics are
direct (from the body) or indirect (from objects re-
lated to the Saints). It seems probable that, if part of a
genuine relic were mixed with common things, there
would be no manufacture of false relics in the sense of
c
our canon, at least it would be doubtful and the benefit of
doubt should be sustained.
2. Those who knowingly sell false relics are such as
are fully aware that no authentic document exists
or has ever existed. If can. 1285, §1 would have to be
-
1 Selling of true relics is for- ^3^5! DUt no excommunication is
bidden as simony and sacrilege and attached.
to be puni&faed according to can.
n'C
/"* ^ ^ ,L» Original from
UNIVERSITY OF WISCONSIN
■
pi
p
316 PENALTIES
applied, because of social disturbance, the relics could
not be simply styled false; but in that case the local
Ordinary should be consulted; excommunication, how-
ever, would not follow.
3. Those who distribute false relics knowingly, 1. e.,
knowing that they are not genuine. It does not matter
whether this is done by official or private persons. Thus
a custos s. su-pellectilis may be as guilty as a simple-
minded woman.
4. Those who knowingly expose or cause such false
relics to be exposed may be the ecclesiastical or the civil
authorities, who command such exposition. If an
inferior, say a sexton or lay-brother, were ordered to
expose them, his cooperation would have to be judged
according to can. 2209. If he docs not know the relics
are false, he is entirely excused; but if he has doubts, he
should try to make sure, though while in doubt he would
escape excommunication, according to can. 2229, §2.
TRAFFICKING IN INDULGENCES
Can. 2327
Quaestum facientes ex indulgentiis plectuntur ipso
facto excommunicationc Sedi Apostolicae simpliciter
reservata.
Those who make profit from indulgences incur the ipso
facto excommunication simply reserved to the Apostolic
See.
The history of this canon runs back to the Refor-
mation, but the traffic in indulgences and other spiritual
favors is as old as the term simony. Pius V made
special efforts to eradicate this evil,1 and yet it lives on;
1 " Etsi Dotntnici," Feb. 8, 1567; " Quom plenum," Jan. *, 1570,
.'le
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2327 317
else the " Apostolicae Sedis " 2 and the Code would not
have deemed it necessary to provide a special penalty for
the modern followers of Simon Magus. The Code
has considerably modified the former text; for, while
the constitution of St Pius V (" Quan plenum")
and Pius IX included all kinds of spiritual fa-
vors, the Code strictly limits the penalties to indul-
gences.
The penalty provided in our canon is incurred by all
who derive material profit from indulgences. Hence the
mere announcement or promise of indulgences is suf-
ficient, if money or other material profit, such as pro-
motion, protection, aid, has been received and accepted.
The essential thing is the simoniacal intention ; whether
the indulgence was really gained, does not matter. The
mere fact that a questus (lucre, gain) was obtained by
promulgating, preaching, or promising an indulgence,
either papal or episcopal, is sufficient to establish the
criminal fact.
It does not matter whether one does it himself or
through another, or whether the purpose is good or bad,
or the cause charitable.8
It was held before the promulgation of the Code
that bishops do not incur this penalty.4 This view must
now be abandoned; for, according to can. 2227, §2,
bishops are declared immune only from suspension and
the interdict latac sentcntiae, but not from excommuni-
cation. Therefore, with the exception of Cardinals, all
prelates may incur this censure. Neither is there any
where other spiritual favors beaidea tione S. Pii V. Quam plenum, 1.
indulgences are mentioned. Januorii, 1569."
3 II, 11: "Omttes qui quacstum 3 This is expressly stated in the
facicntes ex indulgentiU aliijqu* aforesaid Constitution of Fiua V.
ffratiii spiritualibus, excommunica^ 4 Thus D'Anmbale, i. c.t p. 92,
ticnis censura pleetuntur Constitw- n. 137.
jle
( * ^ .. lis* Original from
UNIVERSITY OF WISCONSIN
■
318 PENALTIES
reason why they should be exempt, since indulgences
are granted or promulgated by prelates.
DESECRATION OF GRAVES AND CORPSES
Can. 2328
Qui cada vera vel sepulcra mortuorum ad furtum vel
alium malum finem violaverit, interdicto personali
puniatur, sit ipso facto infamis, ct clericus praeterea
deponatur.
Whosoever desecrates corpses or graves to commit
theft, or from same other evil motive, is to be punished
with the personal interdict, is ipso facto infamous, and if
a cleric, should be deposed. The Christian religion as
well as nature inculcate reverence for the dead and
their resting places. The violation of a tomb was re-
garded as a crime under the Roman law and visited with
the severest penalties. Those convicted of removing a
body or digging up human bones were, if persons of the
lowest rank, condemned to capital punishment; if of
higher condition, they were banished to an island or con-
demned to work in the mines.1 A chapter of the Decree
of Gratian declares them infamous.9 This penalty is
here repeated and involves infamia iuris. The other
two penalties, vis., the personal interdict, which may be
inflicted on laymen and clerics, and deposition for
clergymen, are ferendac sententiae.
No distinction is made between kinds of bodies or
graves. Consequently, the body of a criminal is as
sacred, in this respect, as that of a respectable citizen.
iL. ii, Dig. 48, 12 dt jefulchro s C. 17, C 5, q. 1.
violato; infamy stated in \\ i, ibid.
^
, ,|,., Original fro ni
UNIVERSITY OF WISCONSIN
-
'"
CANON 2329 319
Neither is it necessary that the grave be blessed. To
violate it is a crime against a universal religious sentiment.
The motive must be theft (for instance, to steal the ap-
purtenances of a corpse, such as jewelry or precious
metal) or some other wicked purpose, such as revenge,
hatred, or superstition. While the keeping of bodies for
anatomical purposes is legitimate,3 stealing them, even
though done for the sake of science, is an indictable of-
fence * and falls under our canon.
DESECRATION OF CHURCHES AND CEMETERIES
Can. 2329
Ecclesiae vel coemeterii violatores, de quibus in
can. 1172, 1207, interdicto ab ingressu ecclesiae
aliisque congruis poenis ab Ordinario pro gravitate
delicti puniantur.
Those who cause a church or cemetery to be desecrated
or violated by acts described in canons 11 72 and 1207,
should be punished by the Ordinary with the interdict
forbidding them, to enter the church and with other pen-
alties proportionate to the gravity of the crime.
The acts referred to are set forth in canons 11 72 and
1207 and need no repetition. The penalty is ferendae
scntentiac, but stated prcccptivcly, which means that the
Ordinary is not entirely free to inflict it or not (can.
2223).
In connection with this canon and can. 2326, we may
add that our Code is silent on an excommunication
A Eichmano, /. c, p. 144. ccucy, and shocking to the general
4 Blacks tone-Cool ey. Comment., II, sentiments and feelings of man-
439, note 7- "It being considered kind."
a practice contrary to common de-
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
320 PENALTIES
latae sentetitiae simply reserved to the Holy See which
was formerly imposed for carrying away relics from the
catacombs of the City of Rome without the permission
of the Cardinal Vicar.1
1 This penalty wai mentioned in value- The curious reader is re-
the "Apottolicae Stdis," II, I 15, ferred to the commentaries on said
but it has now a merely historical Constitution.
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
■
TITLE XIII
CRIMES AGAINST ECCLESIASTICAL
AUTHORITIES, PERSONS AND THINGS
The term ecclesiastical comprehends whatever the
Church makes use of by constitutional provision, eithef
divine or human, and whatever she holds by legitimate
titles. Constitution spells authority and therefore is
here treated first (can. 2330-2340). Then comes the
inviolability of clerical persons, including religious, or
rather a specially privileged class of religious (can.
234i-3344). and, lastly, ecclesiastical property, which is
safeguarded against unjust usurpation and incompetent
administration (can. 2345-49).
-
TRANSGRESSIONS OF LAWS CONCERNING PAPAL
ELECTION
Can. 2330
Quod attinet ad poenas statutas in delicta quae in
eligendo Summo Pontifice committi possunt, unice
standum const. Pii X Vacante Sede Apostolica, 25
Dec. 1904.
All laws touching papal election are abrogated except
the Constitution of Pius X, " Vacante Sede Apostolica, "
Dec. 25, 1904, which remains in full force.1 This Con-
■
stitution also regulates the penalties decreed against
offenders.
l Sec the text in Card. Gaspirri's To this may be added "Commisium
(large) edition, pp. 685 ft\, cap, VL Nobis," Jan. 20, 1904, concerning
321
jle
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
322 PENALTIES
1. Those who commit simony1 in the election of a
Pope ipso facto incur ex communication, reserved to the
future Pope, who shall declare the fact that the penalty
has been incurred and who alone can absolve from this
crime. However, the validity of the election can not
be assailed on this score.
2. The same penalty is incurred by those, either
cardinals, clerics, or laymen, who during the lifetime of
the Pope and without his advice,8 enter into negotiations
with regard to the election of his successor, or promise
to give their vote (with or without effect or counter
promise) or dare to hold private meetings in order to
deliberate and decide on the subject of the election.
3. The same penalty (excommunication) is incurred
by cardinals, the secretary of the sacred college, and
conclavists or others who in any way take part in the
conclave, who under whatever pretext accept from any
civil power the charge of proposing the so-called Veto
or Exclusiva, even in form of a mere wish, or mani-
fest it either to the S. College as a body or to single
cardinals, whether in writing or orally, directly or in-
directly, by insinuation or hints, or in any manner what-
soever, as long as the conclave lasts. This penalty ex-
tends to every kind of intervention or intercession or any
form of interference that may come from any lay power
of whatever rank or condition.
4. Cardinals who enter into ante-election agreements,
or hold meetings or pledge themselves to give their vote
to a certain person, henceforth incur the sentence of ex-
communication.
ihe Veto or ius cxclusivac, and the a Tractare means systematic ncjo-
Motu propno " Cum proxirae " of liation with serious intent, not mere
Pius XI (A. A. S., XIV, 6). gossip or passing remarks.
I Sec can. 727.
.'Ie
Original fro m
UNIVERSITY OF WISCONSIN
N
CANON 2331 323
5. During the conclave the following transgressions
are punished:
a) Cardinals who are not present at the balloting
(scrutinium) after the bell has rung, incur the penalty
of excommunication latae sententiae unless they are sick.4
b) Epistolary intercourse with the outside world is
strictly forbidden during a conclave, more especially any
communication through newspapers or magazines. The
transgressors of this law incur excommunication latae
sententiae. This penalty concerns not only the cardinals,
but all conclavists.5
c) Every violation of the secrecy of the ballot is for-
bidden under the same penalty. This affects the
cardinals only, and covers every communication, whether
direct or indirect, that concerns the balloting or trans-
actions of the congregation of cardinals, or the acts and
decrees of the same, either before or during the conclave."
DISOBEDIENCE AND CONSPIRACY
Can. 2331
13
§ i. Qui Romano Pontifici vel proprio Ordinario
aliquid legitime praecipienti vel prohibenti pertina-
citer non obtemperant, congruis poenis, censuris non
exclusis, pro gravitate culpae puniantur.
§ 2. Conspirantes vero contra auctoritatem Romani
Pontificis eiusve Legati vel proprii Ordinarii aut con-
tra corum lcgitirna mandata, itemque subditos ad
inobedientiam erga ipsos provocantes, censuris aliisve
poenis coerceantur; et dignitatibus, benefices aliisve
muneribus, si sint clerici; voce activa et passiva
atque officio, si religiosi, priventur.
4" Vacant* Sedt," n. 37. clbii., n. 5a.
B Ibid., a. 50.
"-.
jle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
324 PENALTIES
St
This canon regards two crimes which differ from each
other not specifically, but in degree, namely disobedience
and conspiracy.
T. Disobedience. Those who obstinately refuse to
obey the Roman Pontiff or their own Ordinary, ivhen
these authorities legitimately command or forbid some-
thing are to be punished in proportion to the gravity of
their quilt, censures not excluded.
a) Obedience presupposes the right to command
and the obligation to obey. Hence there must be a tie
or relation between superior and inferior. This is estab-
lished either juridically or morally. In the juridical
order the Roman Pontiff is the head and ordinary pastor
of all the faithful, clergy and laity ; the local Ordinary is
the ecclesiastical governor of his territory and of those
subject to him by reason of domicile or quasi-domicile.
The superiors of exempt religious orders wield their
power over those who are subject to them by reason of
profession. In the moral order there are still other
superiors, who govern their subjects by reason of the
domestic power, but these are not considered in our
canon.1 For although the vow of obedience binds re-
ligious to their superiors, yet it is the moral power rather
than the juridical (exercised in the external forum)
that establishes the mutual relationship. But all religious,
superiors and inferiors, are alike subject to the Roman
Pontiff (can. 49Q, §1).
b) Ry Roman Pontiff there must be understood the
supreme head of the Church as a religious and super-
natural society. Consequently, disobedience to the Pope
l The text says ordinarius, which canon does not concern non-exempt
muit be understood according to religious organizations with regard
can. 198, { 1, and can only be to their own superiors, but may
applied to superiors of exempt concern them with regard to the
clerical institutes. Therefore, this local ordinary or prelate regular.
§le
£ ~ ^ ^ ,l„ Original fro rn
UNIVERSITY OF WISCONSIN
r
CANON 2331 325
as a temporal ruler is not included2 The supposition
here is that the Pope is the legitimate occupant of St.
Peter's chair.8
c) Ordinarius proprius, as stated above, means one
who has subjects of his own. The clergy are especially
obliged to exhibit reverence and obedience to their bishops
(can. 127). The faithful living in the diocese are also
obliged to obey the bishop, as their pastor. Exempt re-
ligious here are those subject to their own prelates or to
the superiors of autonomous communities. To strange
bishops and strange prelates or superiors the clergy and
religious pay respect, but not obedience.4
d) Like a law, a precept, too, may be positive or pro-
hibitive, according as it commands men to do or to omit
something. The objective norm for all precepts is that
what they order must be legitimate.
Legitimacy is measured, not by personal qualities or
powers, but by the object of the precept. Since, how-
ever, every law is a participation in the eternal law, and
every exercise of human power is therefore confined
within the limits of that law, it follows that even the
papal power has certain boundaries :
a) The Pope can command nothing that runs counter to
the natural and divine law, though he may interpret or
determine it. But he is not bound by the common law
of the Church, although it is commonly presumed that
he will order nothing that would exceed his power.
P) Ordinaries, including exempt religious superiors,
cannot command anything that would clash with the
common law. Neither are they allowed to command
beyond what is established by particular law ; at least,
they are supposed to keep within proper limits.0 Re~
2 D'Annibale, /. c, p. 33, n. 44. * C 11, C. II, q. 3.
* Hollweck, /. c, p. 196. 6 Politics do not fall under the
§le
k ,|,, Original fro m
UNIVERSITY OF WISCONSIN
326 PENALTIES
ligious superiors are not allowed to command anything
against the common law of the Church, and a religious
would not act disobediently if he refused to obey a com-
mand contained neither in the rule nor in the Constitutions
of his order.
y) Disobedience must be obstinate, which presupposes
knowledge and free will, and, besides, a warning, accord-
ing to can. 2307 or 2143; for obstinacy must be proven.
8) The penalty is arbitrary, pro gravitate culpae, and
ferendae sent entice.
2, A conspiracy is an agreement by two or more persons
to effect an unlawful object, whether as the ultimate aim
or only as a means to the same.8 The aim of conspiracies
as a rule is twofold: subversion of the ecclesiastical
authority and incitement to rebellion against it.
a) This canon is aimed at those who enter into a con-
spiracy against the authority of the Roman Pontiff, or
his legate, or tlieir own Ordinary, or against the lawful
commands of these authorities, as far as their power
reaches, either legislative, or judiciary, or coercive, and
as far as these authorities keep within the limits of their
power. For such conduct is subversive of the hierarchic
order and spells resistance to God.
Personal invectives, libelous writings, and defamation
of the person as such, do not constitute a conspiracy.
If a cathedral or religious chapter proposes amendments
to its statutes or constitutions, this is not conspiracy. The
Gravamina Nationis Teutonicae 7 were not considered a
conspiracy, although they very closely resembled one.
But if the threefold power named above is attacked by
mutual agreement, and resisted, there is a conspiracy.
Ust of objects to which the power O Kenny-Webb, 1. c, pt 373.
of the ordinary extends. Neither 7 See Funk, Manual of Church
can superiors forbid their subjects History, II, 68, 165.
to have recourse to the Holy See.
Q
|M
*Ie
Original fro m
UNIVERSITY OF WISCONSIN
CANON 2332 327
St
a
b) Provoking or inciting subjects to disobey the afore-
said authorities also constitutes the crime here mentioned.
But those who pro.voke or incite others to disobedience
may be single individuals, agreement or conspiracy not
being required. How far guilt may be imputed to them
is to be determined according to can. 2209.
c) The penalty for conspiracy and incitement to dis-
obedience is : the conspirators must be restrained by cen-
sures and other penalties ; clerics must be deprived of their
dignities, benefices, and other charges ; religious must be
deprived of the active and passive voice, and of their
offices. Formerly clerics guilty of this crime were de-
posed and delivered to the curia?
APPEAL TO A GENERAL COUNCIL
Can. 2332
Omnes et singuli cuiuscunque status, gradus seu
conditionis etiam regalis-, episcopalis vel cardinalitiae
fuerint, a legibus, decretis, mandatis Romani Ponti-
ficis pro tempore exsistentis ad Universale Concilium
appellantes, sunt suspecti de haeresi et ipso facto con-
trahunt excommunicationem Sedi Apostolicae spe-
ciali modo rcscrvatam ; Universitates vcro, Collegia,
Capitula aliaeve personae morales, quocunque nomine
nuncupentur, interdictum speciali modo Sedi Aposto-
licae pariter reservatum incurrunt
The theory that a general council is above the Pope
now appears absurd. It was called ridiculous by Pius
a
c
8 Cfr. c. 18, C. ji, q. 3; a siont truncatur, ft eiectus ab
horrible imprecation is contained in Reclesia rabido dagmonum or*
c, 14, C. 11, 4. 3 (Pseudo-Antcrus) : discerpitur.
"inobediem sfHriluali animadvtr-
11
jle
^1,* Original from
UNIVERSITY OF WISCONSIN
328 PENALTIES
II * — not by Aeneas Silvius Piccolomini — , but in those
sad times of schism even well-meaning men like Gerson
looked upon it as the only anchor available on a
troubled sea. To-day, of course, the error is neither ex-
cusable nor intelligible. It was proscribed several times a
and our Code fixes its penalty.
i. The persons who incur the penalty here stated are:
a) Single individuals, of whatever state (lay or
clerical), rank or condition, even royal persons, bishops,
and cardinals.
b) Corporations, such as universities (also faculties),
colleges, chapters, and other artificial persons, no matter
what their name (congress, senate, parliament),
2. It makes no difference whether the general council
appealed to, is in session, or to be held in future.5 For
appeal means recourse to a higher instance, and the
fundamental error involved here is that there exists a
higher tribunal than the Pope, and the injury is therefore
committed against the supreme judge.
3. The appeal must be made from laws, decrees, or
ordinances issued by a Pope actually governing the
Church, The text includes laws, which the " Apostolica
Sedes " had omitted : therefore all laws, also privileges
and favors, decrees, either dogmatical or disciplinary,
ordinances, for instance, provisions or appointments,
or judiciary sentences in particular cases, provided these
have emanated from the Roman Pontiff, as such, not as
■-
"-.
1 "Execrabiltis," Jan. 18, U59- tempore exisientium ad universal*
2 Julius II, "Suseepti regiminis," futurum Concilium appellantes, nee
July 1, 1509; Bened. XIV, "Altis- non eos, quorum auxilio, consilio
/into," June a6, 1745, 6 1; " Apo- vet favore appellotum fuerit."
stolicae Scdis," 9 i. n. 4: Cone. Vatic, IV, 3.
"Omnes el singula, euiuscumque s Since the text of the "Apo-
status, gradus seu conditionis stolicae Sedis" had "future," &
fuerint, ab crdinationibus scu man- council held hie et nunc seemed to
iatis Romanorum Pontificum pro be excluded; Pennaccbi I, 41a.
oogle
Y ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 2332 329
a temporal ruler * or an international j udge. The canon
does not include decisions or ordinances issued by the
S. Congregations and Tribunals.
Some5 have raised a difficulty concerning an appeal
from a law, decree, or ordinance of a Pope who has
died after having issued said law, etc., and therefore
seems not to exist any more. However, this is a rather
subtle interpretation and certainly nullifies the intention
of the lawgiver. Besides, it entails the absurdity that
after the death of a Pontiff his laws, decrees, and
ordinances could be appealed. Finally, such laws, etc.,
are intended not only for the lifetime of the Pope. Most
probably the phrase "pro tempore exsistentis" was
inserted in view of a possible resignation. An appeal
from laws, decrees, or ordinances already abrogated
would be senseless.
4. The penalties are:
For the individuals mentioned in the first clause (1, a),
excommunication incurred ipso facto and reserved
speciali modo to the Apostolic See; besides, suspicion of
heresy.
b) For corporations, as such, mentioned in the second
clause (1, b), the interdict ipso facto, reserved to the
Apostolic See. Single members of the corporation, how-
ever, do not incur this censure.0 If they are partakers or
accomplices, they, as individuals, incur excommunication,
but not the interdict.7 Thus the members of a parliament
or senate may vote against appeal to a council, and in that
case they would not incur the penalty, even though the
minority had appealed in their name ; the single members
a
c
o
•* D'Annibale, /. c, p. 34, n. 47. note 8; Eichmann, /. c, p. 15a
5 Pcnnaccbi I. c, I, 409 f, T Sec can. -'^og; can. 3219: a
6 Thus Hollweck, /. c, p. 197, more benign interpretation.
p
'le
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
N
■
330 PENALTIES
would be excommunicated, not interdicted, nor would the
whole body be interdicted.
civil interference with papal communications
(placet)
Can. 2333
Recurrentes ad laicam potestatem ad impediendas
litteras vel acta quaelibet a Sede Apostolica vel ab
eiuBdem Legatis profecta, eorumve promulgationem
vel exsecutionem directe vel indirecte prohibentes,
aut eorum causa sive eos ad quos pertinent litterae
vel acta sive alios laedentes vel perterrefacientes,
ipso facto subiaceant excommunication! Sedi Aposto-
licac speciali modo reservatae.
^-
The kings of England and France in the Xllth
century, constitutional monarchies and free republics alike
were afraid and jealous of the papal power and en-
deavored to blockade its influence by submitting
documents emanating from the Roman Curia to their
personal inspection and approbation.1 This is called the
royal placet, although the text here has a somewhat
wider meaning.
Three kinds of offenders incur the penalty here named :
those who recur in order to impede, those who prohibit,
and those who by word or deed terrify others.
1. The recurrentes are those who seek or ask the
1 Paschal II (1099-1118) already denouncing "papal absolutism," yet
complained against the King of he does not defend the retention
England that he would admit or introduction of the placet, be«
neither papal nuncios nor letters cause it does not fit in with the
without his rojal placet; see E. modern State iRechtsrlaat) and
Friedberg, Die Grensen swischen renders clashes with the Church
Stoat und Kirche, Tubingen, 1872, more frequent; ib., p. 799 f.
p. 729. Friedberg is strong in
Go >gle
Original from
UNIVERSITY OF WISCONSIN
CANON 2333 331
o m
service and aid of others. The mode of recourse is
not determined. It may be formal or informal, i e., by
appeal in civil law or by a mere petition.2 All Catholics,
whether laymen or ecclesiastics, are here included, ex-
cepting the Cardinals (can. 2227, §2).
The terminus ad quern of the recursus is the lay or
civil power (laica potestas). This term supposes real
power, as wielded in our country by the president,
governors, congress, and judges.*
The terminus a quo is recourse calculated "to impede
letters and documents (acta) coming from the Apostolic
See or from its legates'1* Apostolic letters are bulls,
briefs, or motu proprios, or letters of recommendation,
such as we often read in the Acta Apostolicae Sedis.
Acta are decisions, decrees, admonitions, summonses, or
any kind of rescripts issued either by the Pope himself
or by the Roman Court,6 according to can. 7.
Impedire means to impede or prevent some one from
doing or obtaining something. The term implies that the
one thus impeded is unwilling to bear the obstacle.*
Since this word is connected with Apostolic letters, etc.,
which are already issued (profecta), it can only refer to
the reception or transmission of such.
2. The prohibentes are not clearly determined, and the
term itself is somewhat ambiguous. For prohibere in
Latin may mean to prevent or impede as well as to pro-
hibit or forbid. It appears to us that Pennacchi 7 has
stated the correct meaning when he says that the act of
Q
3 D'Annibale, /. ft, p. 42, n. 61; book II, indicates; see can. 265-
Hollweck, /. ft, p. 198. 367.
sHollweck, ibid. BS. O.. Jan. 13, i8pa (Coll. P.
4 By legates are understood F., n. 1777).
nuTiiii, inter nwntii. delegati apos- o D'Annibalc, /. c, p. 4>» a> Co.
tolici, as the title of co. V, tit VI, 7 Comment., I, 285 f.; also D'An-
nibale, p. 49, n. 74.
;Ie
j , Original from
UNIVERSITY OF WISCONSIN
332 PENALTIES
prohibition must proceed from some one in power. The
prohibition of promulgating and executing papal docu-
ments may be direct or indirect. It is direct, if the com-
petent magistrate forbids divulgation of such documents
by a formal law, decree, bill, or sentence. It is indirect, if
effective means are employed to hinder the promulgation
or execution in a round-about way, for instance, by
forbidding a courier to enter a city or town, or by com-
manding a postmaster not to transmit or deliver a papal
document.
Promulgation may here be taken in the juridical
01
sense, •*. e., the making known of a papal letter in the
usual form, which is now by insertion in the Acta
Apostolicae Sedis. However, this interpretation appears
to us improbable, since in that case only the Vatican
Printing Office, or, at most, the Roman civil authorities
would be concerned. Therefore we believe that pro-
mulgation here has the meaning of divulgation or making
known. The Vatican Press, where the Acta Apostolicae
Sedis are printed, is extra-territorial and the Italian
government is supposed to respect the Law of Guarantees.
Execution means carrying into effect, and must be
more particulary referred to the Acta of the Apostolic
See. Here the "place!" might enter; for it means
inspection and approval of a papal document by the civil
government before it may be published and carried into
a
effect. It is called "exequatur" if it concerns appoint-
ments. Of course, where both placet and exequatur are
ratified by concordats, the penalty is not incurred.8
3. Those who, on account of papal letters or docu-
ments, injure or intimidate persons concerned in these
documents, or other persons, are called laedentes. The
8 D'Annibale, I. c, n. 73.
>gle
k ,|,, Original fro m
UNIVERSITY OF WISCONSIN
CANON 2333 333
injury must be real, not merely verbal, and the insults
serious, e, g,f beating.
The perterrefacientes are those who grievously and
seriously scare the interested persons into disobedience.
The fear must be such as would influence a man of
strong character." The persons concerned are those for
whom the documents are intended, — bishops, clerics,
laymen, as well as others who are concerned with the
publication and execution of the same.10
4. The penalty provided for such offenders against
papal, •". c, sovereign authority, is excommunication re-
served spcciali modo to the Apostolic See and incurred
ipso facto. The question is : When is the fact verified
so that excommunication is incurred?
As to the recurrcntes, D'Annibalc11 says, the excom-
munication is not incurred by them unless the lay or civil
power has published a bill impeding the publication or
execution of papal documents, because a recourse is an
attempt and must be judged as such This is according
to our Code, can. 22 12-2213.
As to the prohibentes, the same author says that the
controversy among canonists exempts them from incur-
ring the penalty, in case of a doubt of law or fact, be-
cause the benefit of doubt is always favorable to the de-
fendant or guilty.13
As to lacdentes and perterrefacientes, their guilt de-
pends on the fact; if the injury is done or the fear ex-
a
» Ibid.; thus threats of damage or hand, says: " Recursus suffieit, etsi
defamation may scare a normally recurrent passu* sit repulsam " (II,
firm person. 933)- Hollweck (/. c, p, 198) dis-
10 Ibid. tinguishes: If th* recourse was re-
11 L. c, p. 50, n. 74. jectcd a limine, the penalty is not
12 Xho prolUbentes, therefore, incurred; but if the motion is made
would not incur the censure if the and seconded, though it does not
effect did not follow (tffectu non carry, the effect ii verified and
jtcuto). Lehmkuhl, on the other therefore the penalty is incurred.
^
( * ^ -. -A,-* Original fro m
UNIVERSITY OF WISCONSIN
334
PENALTIES
-
ercised, with the intent mentioned, vis.: to forbid the pro-
mulgation or execution of papal documents, this suffices
to incur the penalty, no matter whether the effect
intended did or did not follow. Neither is there any
contradiction involved here, for the three classes are
quite distinct from one another.
VIOLATION OF THE LIBERTY AND RIGHTS OF THE
CHURCH
Can, 2334
■
pi
Excommunicatione latae sententiae special! modo
Sedi Apostolicae reservata plectuntur:
i°. Qui leges, mandata, vel decreta contra libertatem
aut iura Ecclesiae edunt;
20. Qui impediunt directe vel indirecte exercitium
iurisdictionis ecclesiasticae sive interni sive extend
fori, ad hoc recurrentes ad quamlibet laicalem
potestatem.
This canon comprises two rather inadequately dis-
tinguished violations of ecclesiastical liberty and rights.
The one is a positive violation of any kind of rights,
comprising the whole range of ecclesiastical liberty ex-
plained below. The other is a specific kind of violation,
vis.: of jurisdiction (appellatio ab abtisu).1
1 The opfel comme d'abus can-
not be clearly traced historically;
but the fact is that, after the Prag-
matic Sanction of 1438, it became
a juridical institute of the French
Parliament and appeared in the
Gallican Articles (1683) as well as
in the Organic Articles of Napo-
leon (i8oj); ««e Kriedberg, /. c,
p. 486 ff. England, too, bad its
Praemunire, the statutes of which
were framed by Edward I (127a-
1307) and sharpened by Richard II
(1 J77->39o) ; ice Black stone-Coo ley,
Comm., IV, 103 B. On the Writs
of Prohibition, which arc similar
to the appellatio ab abusu, see
Blackstone, III, 113; Friedberg,
/. e., 738 ff.
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 2334 335
I. Those who issue laws, ordinances or decrees against
the liberty and rights of the Church incur excommuni-
cation Litac sententiac reserved speciali modo to the
lApostolic See.
a) Edere means to pass a law; in this country any
bill that passes both houses of Congress and is not
vetoed by the President, is a law. An ordinance
(mandatum) is an order issued by a particular court
or magistrate, especially for the arrest or capture of a
criminal; also a summons, warning, or injunction, A
decree may be taken as a decision issued by a court, for
instance, a supreme or district court, also a municipal
ordinance either commanding or forbidding something.
However, these decrees and ordinances must have a
general character, and not refer merely to a particular
case,2 unless this should form a precedent.
All those, then, who cooperate in issuing or
effectively enacting laws and decrees detrimental to the
Church, must be considered guilty of the crime here de-
nounced. But, in parliamentary language, several acts
are required to make a law: the bringing in of a bill,
seconding the motion, voting on it, passing it through the
house or houses and, finally, signing or vetoing it. Are
all these equally guilty? The answer is that* if the bill
becomes a law, all are guilty who have in any effective
way contributed to this end.8
Concerning decrees and ordinances, all those are guilty
who shape and issue them, but not minor officials who
"-.
3 D'Annibale, J. e.t p. 46, n. 68. against the King, his crown, his
Read, for instance, St 16, Ric. f, dignity, or his realm ... he shall
c 5: "If any one shall purchase or be put out of the King's protection
pursue in the court of Rome or and his lands and goods forfeited
elsewhere, any translations of prel- to the King," etc.
•tea, processes, sentences of ex- a Hoi 1 week, U c, p. 306; D'Anni-
communication, bulls, instruments, bale, /. c, p. 46, n. 68.
or any other things whatsoever
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
336 PENALTIES
merely write or typewrite, print or puhlish the text, or
sheriff or marshals who serve it.
b) The liberty and rights of the Church must be
curtailed or set at naught in these laws, ordinances or
decrees. The Church here is the universal Church, as
such, although, as one distinguished commentator truly
says,* it may happen that the whole Church is affected
if a particular church is injured, for instance, by for-
bidding certain religious to exist in a certain province
or diocese, or prohibiting processions and missions in
a country. The liberty of the Church means her right
to exist and to spread according to her nature and con-
stitution (can. ioo). Violations of this liberty are
enumerated in can. 2333, 2334, 2336. Of course, there
can hardly be serious talk about liberty where the native
and independent rights of the Church are either entirely
taken away or curtailed. Native rights are the right to
preach the Gospel, can., 1322; to educate and train the
clergy, can. 1352 ; to found and maintain her own schools,
can* z375 > to possess her own cemeteries and property,
can. 1206 and can. 1495 ; to enjoy the judiciary and coer-
cive power, canons 1553 and 2214. These are essential
rights. Acquired rights, if not directly connected with
these native rights, are necessary only ad melius esse.
2. Those who, in order to impede the exercise of
ecclesiastical jurisdiction in the internal as well as external
forum, either directly or indirectly have recourse
to any secular (lay) power, incur excommunication
latae sententiae reserved modo speciali to the Apostolic
See.
As is evident from the text, there is but one leading
thought in it; or, in other words, one compound sentence,
4 Hollweck, /. c, p. 206, I 137, a HoIIweck, I. c, p, 307,
note 1.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
■--.
CANON 2334 337
not two, as in the * Apostolicae Sedis." 9 Dissecting this
one statement the following salient points may be dis-
tinguished.
a) The leading subject is "recourse to any by
power/1 What recourse means has been explained
above : it is to seek help, or redress, or protection against
real or imaginary wrongs. However, the recourse must
produce an effect, vis., the act of impeding. If, there-
fore, the secular power refuses to entertain the recourse,
the penalty is not incurred. But if the lay power would
issue an injunction, even though it remained without
effect, the penalty would follow.7
The term quaclibct laicalis potcstas is wider here than
in can. 2333, and may signify not only public, but also
private power,8 in as far as this really has power in the
juridical sense, be it legislative, judiciary, executive or
administrative. Whether this includes the domestic
power, such as a father has over his children, a husband
over his wife, seems doubtful; all the more so since the
appellatio ah abusu, which is here intended, was ad"
dressed to the magistrates. Yet even private power may
really impede the exercise of ecclesiastical jurisdiction,
especially in the internal foium, and whenever it does so,
it is undoubtedly included.
b) The subject or aim of such recourse must be
to impede the exercise of ecclesiastical jurisdiction.
The power of jurisdiction extends over all acts that
emanate from, or presuppose, this government, as far as
a 8 I. " 6. Impedientes direct* v*l * Hollweck, /. c, p. 200, note 10.
indirect* exereilium iurisdictionis 8 See c. 4. 6", III. 27; however,
tcclcsiasticae sive irttcrni, sive w- what wc state in the text may be
terni fori, el ad hoc recurrent n ad doubtful, although D'Annibalc (/. c,
forum saccular* tiusque mandata p. 42, n. 60) sets it forth as
proevrantes, edentcs, aut auxilium, sententia cotnmunior.
consilium vel favorem firatslantes."
►ogle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
338 PENALTIES
they are distinguished from the power of order. All
acts of order, strictly speaking, are therefore to be
eliminated from this text, such as the celebration of
Mass, the holding of religious services, saying public
prayers; in fact, we believe, all acts of divine office.
Our canon refers only to acts of jurisdiction, though
these may, of course, presuppose the power of order.
It does not matter whether the jurisdiction is ordinary
or delegated, of the internal or the external forum,
sacramental or non-sacramental, exercised criminally or
civilly, or by way of administration, such as appointment
to, or removal from, offices or benefices.
To impede means to cause one to quit working
against his will. An obstacle may be put in the way in
the very beginning, or when the sentence is to be ex-
ecuted. Take, for instance, the case of the removal of
a pastor under can. 2156. If the investigation is pre-
vented in limine by lay interference, the procedure is
nipped in the bud; whereas, if the sentence of removal
has been given, and the pastor does not move nor leave
his residence, the execution only is stopped.
An impediment may be placed in the way of a process
either directly or indirectly. Direct interference is that
used against one who is entitled to exercise jurisdiction,
by either resisting or nullifying his acts. Indirect
intervention is that used against the Ordinary or others
who exercise jurisdiction by threatening or molesting
their relatives, friends, dependents, agents, servants, in
order to intimidate, prevent or stop the giving or carry-
ing out of a sentence.1
c) The penalty for such interference is excommuni-
cation for laymen as well as clerits of every degree and
rank, with the exception of cardinals (can. 2227, §2).
oD'Anr.ibalc, I. c, p. 41 f.j n. 60.
Q
c
I Original from
jrVjOOglL UNIVERSITY OF WISCONSIN
■
CANON 2336 339
Clerics and religious who transgress the penal laws of
can. 2334 and 2335 are, besides, subject to the following
penalties.
Can. 2336
§ 1. Clerici qui delictum commiserunt de quo in can,
3334» 2335» praeter poenas citatis canonibus statutas,
poena suspensionis vel privationis ipsius beneficii,
officii, dignitatis, pensionis aut muneris* si qua forte
in Ecclcsia habeant; religiosi aut cm privatione officii
ct vocis activae ac passivae aliisque poenis ad normam
constitutionum plectantur.
§ 2, see infra, p. 346.
This penalty is ferendae senfentiae, but does not
supersede or supplant the excommunication stated in can.
2334. Those who inflict it, are obliged to do so accord-
ing to can. 2223, and there is no choice except between
general suspension and privation of benefice, office,
dignity, pension, or any position the culprits may hold in
the Church. Religious must be deprived of their office
and of the active and passive vote; they should also
be punished according to the penal rules of their own
constitutions.
FREEMASONRY
Can. 2335
e
CI
Nomen dantes scctac massonicac aliisve eiusdem
generis associationibus quae contra Ecclcsiam vel
legitimas civiles potestates machinantur, contrahunt
ipso facto excommunicationem Sedi Apostolicae
D
simpliciter reservatam.
oogle
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
340 PENALTIES
Those who enlist in Masonic sects or other associations
of the same kind, which plot against the Church or
against Imtiitl civil authority, ipso facto incur the ex-
communication simply reserved to the Apostolic See.
The text distinguishes two kinds of pernicious
societies, although both have the same purpose, and the
purpoce alone is sufficient to merit the penalties decreed
in the text.
i. Freemasons are here understood as a sect with
compact organization and, set rules or constitutions.
Their origin, to judge from their own writings, seems to
be rather obscure, but is generally assigned to the year
I7I7- England is the birthplace of Freemasonry.1
There is no doubt that secrecy is the essence of this in-
stitution, that symbols and allegories which are traced to
the beginning of religion are conspicuous in the genuine
sect of Freemasons. It is also admitted that their out-
spoken advocacy of a sort of freedom which brooks no
law except the ego has prompted civil governments to
forbid them long 2 before Clement XII issued his Consti-
tution "in eminenti" April 28, 1738, which Benedict
XIV ratified and renewed in " Providas" March 18,
175 1, and other papal constitutions and decrees repeated
or modified, as will be seen in the course of these com-
ments.
By Masonic sects were understood societies whose
members were bound by an oath to keep everything
secret, and who had their own ritual as well as organiza-
tion. Their aim was clearly characterized by their under-
ground activities. However, though the first papal
constitutions, up to the time of Pius IX, stress secrecy,
1 A. Preusa, A Study in American of Holland, and Louis XIV forbade
Freemasonry, 1908, pp. 346 ff. thcra in France, 1737; Freuss, /. c.t
2 Thus its lodges were proscribed p. 37a.
in 1735 by an edict of the States
jle
£ * -» ^ -,L» Original from
UNIVERSITY OF WISCONSIN
a
N
CANON 2335 34I
we find a departure from this essential " element of
Masonry in 1846. For a decree of the Holy Office, Aug.
5, 1846, reads thus: When secret societies are spoken
of in the papal constitutions, all those are to be under-
stood which pursue a special aim against the Church or
government, no matter whether or not they demand an
oath of secrecy.8 Henceforth this practice was adhered
to by the Roman court, as later decisions prove. Con-
sequently, the dependent clause in our text which begins
with "quae contra Ecclesiam* — M must be referred to
Masonic sects, as a distinctive note. It is implied that
every Masonic sect has this aim in view. But this is a
mere presumption, which can be overthrown by facts.
And the facts can be ascertained only by an inspection of
the resp. constitutions and by-laws; for the ritual alone
would barely give a satisfactory answer. This we
thought necessary to state in order to avoid confusion.
It goes without saying that the " Grand Lodges " of
America, the English Lodges of the York and Scottish
Rite, as well as the Grand Orient and Supreme Council
of France and Italy and elsewhere* belong not only to
the Masonic sect, as here intended, but arc condemned
sects. For there can be little doubt that they aim at sub-
verting Church and State. The nations involved in the
world war need have no doubts as to this sad and well-
established fact.
2. Which are the other associations of the same kind
mentioned in our text? Note the word association, which
is different from sect, the term employed in the
" Apostolicae Sedis." ° Association admits of a wider
■
I Coll. P. F., n. 1350, note 2. contra Ecclesiam vel legitimes potts-
4 Preuss, /. c, p. 378 ff. tales sen palcm, sen clandestine
B { II. A- "Nomen danles sectac machinantur, nee non tisdtm sectis
Musonicae, out Carbonariae, out favor em qualcmcunsque praestantes;
aiiis eiusdem generis sectis, quae
>Ic
£ " ^ * -iL* Original from
UNIVERSITY OF WISCONSIN
■
342 PENALTIES
range. It does not necessarily mean a "closed" or
compact society, with statutes or by-laws, but merely a
union of individuals for a definite purpose. From this
viewpoint I' Internationale, Communists, Nihilists, Bol-
shevists, etc., may be included in the term.
3. The aim or end of these societies must be, as the
text says, " plotting either against the Church or the
legitimate civil power. " Therefore, if by a happy incon-
sistency any Masonic sect would reverse this aim, it
would not incur the penalty provided by this canon.
a) Machinari signifies to contrive, but is generally used
in the bad sense of plotting or contriving with an evil
design, scheming maliciously, as we say in the impediment
of crime: uno machmante. Here it means any written,
oral or actual agitation or concerted propaganda and
incitement against Church or State.6 However, it must
be understood that such plotting must be the aim of the
society or association as such, not merely of individual
members. For no society can be held responsible for
acts which single members perform as private citizens.
Therefore, the constitutions or statutes or by-laws or a
secret oath or simple promise must bind — not oblige,
for no obligation can arise from illicit promises — the
members to pursue that aim.
b) The plotting must be directed either against the
Church or against the lawful civil authority, — one of
them being sufficient.
The Church is plotted against if the whole Church, not
merely particular parts of it, is attacked in her dogmas
and disciplinary or administrative laws, in her hierarchy
and ministers.7 One plots against the lawful civil power
earumqat occulta* corypkacos ae 6 Hollwcck. /. c, p. 171. note 7.
duces non dcnunciantei, donee non 7 Leo XII, "Quo graviora," March
denunciavcrint." 13, 18^5. For instance, the book ol
jle
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 2335 343
by stirring up the people and overthrowing the legitimate
government, as was the case in Portugal of late. The
question when a government is lawful, may cause some
trouble to the international, national, and individual
conscience The international and national consciences
— if there is such a thing — are closely interwoven.
Broadly speaking, a government must be held legitimate
if it is recognized by other nations, either formally by an
act of declaration, or informally by establishing or re-
establishing diplomatic relations.8 Rut the individual
conscience cannot be settled by a " League of Nations "
or by diplomatic relations or commercial treaties. Take,
for instance, the case of the Portuguese or the French
Royalists, or the Castilian-Catalonian pretensions, not to
speak of the former Papal States.9
4. Which sects or associations are intended by our
canon ?
a) There can be no doubt that the Masonic lodges, as
they originated in England and were transplanted to the
U. S., in 1729, t. e., the " Ancient and Accepted Scot-
tish Rite " as well as the " Grand Orient of France,"
have all the earmarks of a sect, as here intended. And
by the way it may be stated that Orientals also, (Ruthe-
nians, Greeks, Armenians, Syrians, etc.), who belong
to such a sect incur the censure here mentioned.10
b) What about the " hxdependent Order of Good
Templars"? If it is true that this society is closely
allied with the Freemasons, nay even presupposes
Masonry of a high degree,11 there can be no doubt that
Q
J. D. Buck. The Genius of Fret- doubt ihould be accorded, and there-
mtsonry, 1907 (Preuss, /. c, p. fore the censure is not incurred.
433 ff>. 10 S. O., Aue. 6. 1885 (Coll. P.
8 See Weatlake, International Law, F., n. 1640).
1910, Part I: Pence, pp. 50 S. 11 Sec Preuss, /. c, p. 421, note.
B In such cases the benefit of
oogle
, ,1,., Original from
UNIVERSITY OF WISCONSIN
344 PENALTIES
a
it is included in the name of Masonic sects, provided
its aim is plotting against Church and State. It may
be added that the Holy Office,12 although severely for-
bidding them, has not declared the Good Templars liable
to the excommunication pronounced in the " Apostolicae
Sedis."
-
c) The same is true with regard to the " Odd Fellows, "
the "Sons of Temperance" and the "Knights of
Pythias." 1S But although these four lodges are not
formally condemned, and therefore do not constitute
" condemned sects, " yet if they either secretly or openly
pursue a subversive aim, as defined in our canon, they
certainly incur censure.
Q
d) To the associations with a pernicious aim of plot-
ting must now 14 be reckoned the Nihilists, the Com-
munists, the radical Socialists, and others of the same
kind.
e) The Fenians of Ireland and England were especially
singled out as falling under the censure.15
5- The last-named sect gave rise to several questions
concerning absolution. The bishops were advised as
follows :
a) They should gravely enjoin on confessors the duty
of admonishing the penitents not to enroll in secret
societies, nor to frequent the meetings of these societies,
a
nor to favor them in any way.
b) The confessors should refuse absolution to the ob-
stinate (pertinacibus), i. e.f those who insist on remain-
ing members of the secret society in question.
1»S. O., Aujr. 9, 189J {Colt. P. F.. Communists, Socialist!, the to-
il. 1845): " Dilata" but the an- called Internationale, Nihilists.
•*ff never came. id S. O-, July a, 1845; July 5,
is S. O., Aug. 30, 1894 (Putzer, 186s; Jan. 12, 1870 {Coll., nn. 998,
Comment., ed. 4, p. 335). 1870), also cremation societies if
n D'Annibale, /. r., p. 79, n. 117 affiliated with Freemasons; S. O.,
excludes: Old Catholics (of course 1), May 19. 1886, ed. 1 (it., n. 1657).
jle
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 2335 345
Q
c) Those genuinely repentant should be absolved from
the excommunication incurred.18
There arc difficulties in demanding the ciuratio or
abjuration of secret societies, on account of the serious
temporal disadvantages often involved. The Bishop of
St. Hyacinth petitioned the Holy Office in casu,17 and
received the following answer :
Repentant members of such societies may be ad-
mitted to the Sacraments if: 1°. they really withdraw
from the secret societies in question ; 20. if they promise
never to take part in any secret or public act and not to
pay the dues or fees; 30. if they repair the scandal given
as well as they can; 40. if they are really disposed to
withdraw their name from the rdster as soon as it can
be done without serious loss.
d) A later decision of the Holy Office18 again touched
the question. The eiuratio, it says, may be performed
before the confessor, no matter whether the fact of
membership be notorious or not, provided the members
of forbidden societies actually withdraw from member-
ship, forswear and reject the sect at least in presence of
the confessor, and repair the scandal they have given as
well as they can-
Since the censure is one simply reserved, Ordinaries
need a general faculty to absolve from it.10 This may
be imparted to confessors. But regulars cannot absolve
from this censure in virtue of their privileges.10
Concerning occult cases, see can. 2237, §2, which
permits Ordinaries to absolve from occult cases. This
Q
18 S. O., Aug. 1, 1858 {Coil, P. IBS. O., Aug. j, 1898 (CeU., n.
F., n. 1 1 16). 3014).
17 S. O., March 7, 1883 (ib,, n. IB Cin. 2253, n. 3.
I5P3) : the decision of Jan. 10, 1896, 20 S. Poenit, Dec. s. 1873 {Colt.
is not inserted in this collection, P. F,, n. 1409).
probably on account of its very
particular character.
oogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
346 PENALTIES
faculty may be communicated to others (see can. 199, §1).
A case is occult as long as the name is not published or
the membership publicly known, or known only to a
few reticent persons. But those who frequent Masonic
meetings, wear Masonic emblems, and show themselves
as adepts in Masonry,21 cannot be called secret Masons.
Since the Very fact that they hive enrolled in such a sect is
sufficient for incurring the censure, it may be that one
would say: I did riot know the true character of this
society. He may be looked upon as penitent and may be
really penitent. However, be it as it may in rare indi-
vidual cases, such ignorance seems hardly possible after
all the papal constitutions and warnings that have been
published. On the other hand, since a general rule can
hardly be stated, the benefit of doubt may be accorded to
one who asserts that he was really ignorant and is now
penitent.22 Hence can. 209 and can. 2247, §3 may be
applied.
23
Can. 2336
For § 1 see supra, p. 339.
§ 2. Insuper clerici et religiosi nornen dantes sectae
massonicae aliisque similibus associationibus denun-
tiari debent Sacrae Congregationi S. Officii.
Clerics and religious who join (notnen dantes) the
Masonic sect and other similar associations must be de-
nounced to the Holy Office. Consequently religious
superiors are not allowed to meddle in such cases, because
they concern matters of faith, according to can. 501, §2.
Si S. O., June 27, 1838 (ib., n. 23 That can. 2354 may also be
868). applied is evident.
32 S. O., Aug. i, 185S («S *■
1116).
§le
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 2337 347
But they may denounce delinquents either to the local
Ordinary or to the Holy Office directly, provided there
is proof, not mere suspicion based on gossip. No can-
onical warning or judiciary hearing of witnesses is per-
mitted.
■
te
INCITEMENT OF PRIESTS TO INSUBORDINATION
Can. 2337
§ x. Si parochus, ad impcdiendum cxercitium
ecclesiasticae iurisdictionis, ausus fuerit turbas ciere,
publicas pro se subscription's promovere, populum
serrnonibus aut scriptis excitare aliaque similia agere,
pro gravitate culpae, secundum prudens Ordinarii
judicium, puniatur, non exclusa, si res ferat, suspen-
sions.
§ a. Eodern modo puniat Ordinarius sacerdotem qui
multitudinern quoquo modo excitet ad impcdiendum
ingressum in parocciam sacerdotis legitime nominati
in parochum aut oeconomum.
The proximate source of §1 of this canon is the decree
Maxima cura/' of Aug. 20, 1910, which formerly reg-
ulated the administrative removal of pastors. The
material source is nothing less than the documents which
protested against the " appeal from abuses. " There is
a chapter in the Pseudo-Decretals which forbids under
severe penalty the inciting of a congregation against its
pastor and says the disturber should be punished like
a revolutionary, i. e.t " expelled from the whole people.1 "
The custom of appealing to the civil court became com-
mon in France and was imitated in other countries, as
1 C. 7, C. 11, q. 3 {Cepitula Martini Brag., Migne, jjo, 584).
LlbyC ;Ic
j ^ Original from
UNIVERSITY OF WISCONSIN
348 PENALTIES
may be gathered from Innocent VIII's complaint.2 The
so-called Liberal clerics of the time of Pius IX followed
the same tendency. It was but natural, therefore, that
the " Maxima cura, " which facilitated the removal of
pastors, should contain a penal paragraph for such as
would not obey the command of removal. Hence the
wording of can. 18, §i in the " Maxima euro " commences
with "ad rcnunciationem et amationem itnpediendam"
and ends with " puniantur," — to which our canon adds :
" non exclusa, si res feral, suspensione. "
A pastor who, in order to impede tlie exercise of
ecclesiastical jurisdiction, dares to perpetrate the follow-
ing or similar acts must be punished in proportion to the
gravity of his guilt by the Ordinary according to his
own prudent judgment, if necessary, even with sus-
pension. The acts thus punishable are:
a) Exciting the people;
b) Promoting public subscriptions for himself, or
c) Rousing the people by sermons or writings, etc.
The intention must therefore be to place an obstacle in
the way of the exercise of ecclesiastical jurisdiction.
The text does not say that the exercise must be just.
Of course, if jurisdiction has ceased, there can be no
attack against it. Thus if a resigned or suspended3
bishop should attempt to exercise jurisdiction, this
canon would not apply. On the other hand, no matter
how unjust the exercise or its motive may be, obedience
is required. For to adjust matters in a revolutionary
way is worse than the suffering of one innocent per-
son. Besides, there are plenty of legal ways and
means to get justice done, such as recourse, appeal,
etc.
-
<
a "Officii nostri," Jan. 35, 1491, » See can. 2384: after a declar-
9 2 {Bull. Luxemb., I, 449). atory or condemnatory sentence.
Q
06 by Google
j , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2337 349
St
" Ausus fuerit" supposes full knowledge and approval,
according to can. 2229, §2. Therefore, if a pastor"
was mentally depressed, the penalty should not be
meted out. Also, if others perpetrated the forbidden
acts against his will. But if the others acted thus at
his instigation or with his approval, either public or
secret,4 he would be liable to punishment.
The acts forbidden include all kinds of demagogic
demonstrations. Worst of all is turbos ciere, for this
means to set a large and promiscuous crowd into com-
motion. The penalty for this crime is arbitrary and
ferendae sententiae. Suspension both from office and
benefice may be applied in more serious cases unless
the Ordinary limits it to one (caa 2279).
This section of canon 2337 is strictly limited to pastors,
and to all who go by that name, either irremovable or re-
movable, including quasi parochi, etc., according to can.
45 1> §2- The "Maxitna cura" (can. 30) excepted
oeconomi and temporary vicars, but the Code undoubtedly
includes vicarii paroeciales, provided they have full pa-
rochial powers.5
§ 2 of can. 2337 establishes the penalty to be meted out
by the Ordinary to offending priests. This is a wider
term, including any priest of the secular clergy as well
as of religious orders. Priests, then, who in any way
stir up the populace to impede or prevent a fellow-priest
who lias been lawfully appointed as pastor or oeconomus
from entering the parish, must be punished in like manner.
Here the incitement to insubordination is described
4 Innocent VIII, "Officii nostri," great numher and be accompanied
I 2; Reg. Iuris 72 in 6". Collecting by a protest against removal, "pro-
* affidavits." as such, in order to rooting public subscriptions " would
prove one's innocence, is not, we certainly be verified.
believe, forbidden by this law; but 0 This seems to follow from
if the affidavits would amount to a 5 2 of our canon.
jle
| , Original from
UNIVERSITY OF WISCONSIN
Q
N
■
350 PENALTIES
rather indefinitely (quoquo modo), without reference to
the effect.
Ingressus means the taking possession of an office to
which one has been appointed. If accompanied by
ceremonies, it is sometimes called installation. But the
appointment must have been lawfully (legitime) made.
The legitimacy may be afFected by the person who makes
the appointment. Thus an appointment made by a Vicar-
General without special commission from the Ordinary
would be illegitimate (can. 152). A suspended or re-
signed bishop could not legitimately appoint a pastor or
curate. Again, validity may suffer on account of the
office not being vacant by law, concerning which see
canons 150, §i, 151 and 183. The lack of a written
document (can. 159) does not invalidate an appointment.
The penalty stated is the same as in §1. Hence
it is arbitrary, but obligatory, in the sense of can. 2223.
Suspension, either general or special, total or partial,
may be inflicted.
Religious, too, may be thus punished, provided they be
pastors or priests, according to can 616, §2.
DISREGARD OF RESERVATION AND OF PENALTIES
Can. 2338
§ 1. Absolvere praesumentes sine debit a facultate
ab excommunicatione latae sententiae specialissimo
vel speciali modo Sedi Apostolicae reservata, incur-
runt ipso facto in excommunicationem Sedi Aposto-
licae simpliciter reservatam.
§ 2. Impendentcs quod vis aux ilium vel favorem ex-
communicato vitando in delicto propter quod excom-
municatus fuit; itemque clerici scienter et sponte in
I Original from
' K H 'gie UNIVERSITY OF WISCONSIN
CANON 2338
351
N
■
divinis cum eodem communicantes et ipsum in divinis
officiis recipientes, ipso facto incurrunt in excommuni-
cationcm Sedi Apostolicae simpliciter reservatam.
§ 3- Scienter celebrantes vel celebrari facientes
divina in locis interdictis vel admittentes ad
celebranda officia divina per censuram vetita clericos
excommunicatos, interdictos, suspensos post senten-
tiam declaratoriam vel condemnatoriam, interdictum
ab ingressu ecclesiae ipso iure contrahunt, donee,
arbitrio eius cuius sententiam contempserunt, con-
gruenter satisf ecerint.
§ 4. Qui causam dederunt interdicto locali aut
interdicto in communitatem seu collegium, sunt ipso
facto personaliter interdicti.
Three of these four sections repeat in a somewhat
modified form parallel enactments of the Apostolicae
Sedis. **
1. The first section punishes with excommunication
ipso facto and simply reserved to the Apostolic See
all who without the necessary faculty dare to absolve
any one from excommunication latae sententiae, either
most especially or especially reserved to the Apostolic
See.
1 Absolvere aut cm praesumentes
tine debita facultate, etiam quovis
praetextu, ex communications vin-
culo Romano Pontifici reaervatae in-
nodatos se sciant, dummodo non
agatur dt mortis articulo, in quo
tarn en firma sit quoad abtolutos
obligatio standi mandatis Ecclesiae,
ti convaluerint.
8 //. 16. Communicantes cum ex-
communicato nominalim a Papa in
crimine criminoto, ei scilicet im-
pendtndo auxilium vel favorem.
I 11. 17. CUricot scienter et sfonte
communicantes in divinis cum per-
sonis a Rcmano Pontifice uominatim
excommunicatis et ipsos in otHcns
rccipientes.
fi VI. 2, Suspensioncm ab Ordine
suscepto ipso ture incurrunt, qui
eumdem ordinem reciper* prae-
sumpscrunt ab excommunicato vel
interdicto nominatim denuncialis,
aut ab kaeretico vel schismatieo
nctorio: eum vcro, qui bona fide a
quopia*n eorun tit o'dinatus, ,■•,■?■-
citium non habere ordinis sic sue-
cepti, donee dispensetur, declaramus.
>Ie
Original from
UNIVERSITY OF WISCONSIN
35* PENALTIES
Here the phrase " quovis praftcxtu" is omitted,
and instead of it there is inserted " sine debita facilitate."
This involves contempt or disregard of the papal
authority, 3 which is entitled to limit the power of
inferior prelates. Notice the word praesumentcs and
compare can. 2229, §2, also can. 2247, §3» concerning ig-
norance of reservation, except of censures specialissimo
modo reserved to the Apostolic See. Of course the cases
of necessity and death, mentioned in canons 2252 and
2254, are excepted from the penalty here stated.
2. The second section regards the communicatio cum
vitandis and implies disregard for the coercive power,
contempt of the common penal law, and cooperation in
crime. The first clause of the paragraph concerns all,
laymen as well as clerics, whilst the second is directed to
clerics only.
a) Those who offer any aid to or favor an excoin*-
municatus vitandus in the crime for which he was ex-
communicated, ipso facto incur the excommunication
simply reserved to the Apostolic See. To lend a helping
hand (auxilium impenderc) properly means to assist
in committing a crime,8 but this cannot be the meaning
here, as the crime is supposed to have been already com-
mitted. What is meant, therefore, is participation in
a crime for which one was excommunicated, or, as it
used to be called, in crimine criminoso. Furthermore,
the help must be given to one who was nominally declared
vitandus by the Apostolic See. Hence we are dealing
with a clearly determined case,4 and consequently, the
aid here intended is confirmation in evil, assisting in
publishing a defence of the crime denounced, or material
a See c. 1, Clem. V, 7, 4 Such were the cases of Hubert
« Cf r. ec. 3, 6, 17, C. 11, q. 3; Ran ken a (1873) and Bomolo
c. sg, X, V, 39. Murri
v ,1,., Original from
UNIVERSITY OF WISCONSIN
>gle
CANON 2338 353
support in order to enable the culprit to escape from the
ecclesiastical court.
Favor is a somewhat wider term and includes any
favor, either spiritual or temporal, by vote, recommenda-
tion, presence, also negatively, e. g., the omission of a de-
nunciation to which one is in duty bound. In this sense
also counsel or advice is included.6 But all that is, as
we said, strictly to be referred to the reason for which
one was nominally declared vitandus. Hence mere social
intercourse, as described in can. 2267, is not forbidden;
nor would those otherwise not allowed to have inter-
course with a vitandus incur the penalty here stated for
this act, even though it were forbidden. Hence the ex-
communicatio minor is entirely obsolete.
b) The second clause of §2, can. 2338, punishes with
the same excommunication incurred ipso facto and
simpliciter reserved to the Apostolic See all clerics who
knowingly and of their own accord communicate with a
vitandus in divinis and receive him in divinis ofEcUs.
-
This text is a modified reproduction of older sources.8
i°. By clcrici arc understood all clerics,7 religious as
well as secular, of every rank and dignity. There is no
reason 8 whatever why prelates inferior to the Pope
should not be included, except cardinals.
2°. The vitandus here mentioned must be a cleric, for
mere participation in divinis is not sufficient to incur the
penalty, but admission to the performance of divine
office is required. Therefore, if the rector of a church
8 D'Annibalc (/. r., n. 152) and 0 See c. xB, X, V, 39; " Apo-
Pcnracchi (I, 1045, ff.) hold other- Jlolicac je.lis " (quoted above).
wise; yet D'Annibale (/. c.) says: 7 Can. 2337, 6 2.
"Excommunicato propter furtum 8 Weak is the reasoning of Pen-
persuadcat [sicf] ne restituat." nacchi I, 1053. What we say is
This is called in Italian battibec- upheld also by D'Annibale, p. 99.
chio — a hairsplitting, unfounded n. 15a; Hollweck, /. c, p. 337
a
■ -
altercation about a word or phrase. note 2.
jle
^ ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
354 PENALTIES
would administer holy communion to a clcricus vitandus,
or would bury him, or admit him to hear Mass, the
penalty would not be incurred. But if he would admit
him to say Mass, or to administer the Sacraments, he
would be amenable.8
3°. The text clearly states admission to, and parti-
cipation in, dwinis officiis. This removes all doubt10
as to the nature of the offices intended. They are the
divine offices mentioned in can. 2256, n. 1. Consequently
mere official acts, such as administrative or judiciary
functions, are not included. Preaching, though an act
emanating primarily from jurisdiction, presupposes the
clerical character, and is therefore, at least indirectly,
enumerated among the divine offices.11 It follows that
clerici vitandi should not be allowed to preach.
4°. The participation and admission here forbidden
must be rendered knowingly and spontaneously (scienter
et sponte). Therefore can. 2229, §2 must be consulted.
§ 3 of can. 2338 punishes disregard of the local interdict
and of the ecclesiastical censures incurred by clerics.
The wording of our text, which is based on ancient
sources12 and on the " Apostolica-e Sedis," is less liable
to misinterpretation than the older laws on the subject.
I, The local interdict (can. 2268 ff.) is first safe-
guarded. Those who knowingly celebrate or liave others
celebrate divine offices in interdicted places, ipso iure
incur the interdict prohibiting them from entering any
church until they have given due satisfaction to him
whose sentence they have disregarded.
a) The persons to be understood here are clerics only,
as all commentators maintain, because clerics alone are
• D'Annibale, /. e. 11 Can. aaso, I I.
10/6., note 8; Hollweck, /. c„ p. 12 See c 7. C. 11, q. 3; c. 18,
337, note 7. X, V, 3»i c. 18. 6°, V, 11.
■Ic
, ,] , Original from
UNIVERSITY OF WISCONSIN
CANON 2338 355
supposed to be celebrants.13 All clerics are included,
also exempt religious.14 Exception, of course, must be
made in favor of bishops, but not of Ordinaries as such,
in virtue of can. 2227, §2. Bishops therefore do not
incur this penalty.
b) By officia divina are understood the offices named
in can. 2256, n. 1.
c) The penalty is not incurred if ignorance can be
pleaded, 1. e., any kind of ignorance except affected.15
Nor is the penalty incurred when the celebration and per-
mission of the celebration occur in places, though inter-
dicted, where celebration is allowed according to com-
mon law, as stated in can. 2270 f. On the other hand,
it does not matter whether the local interdict was im-
posed by law, by the Apostolic See, or by the bishop.
d) Consequently, the judge as to whether the satis-
faction is sufficient or not, is the authority who has pro-
nounced the interdict; he may also absolve from this
penalty.
2. Those who admit to the celebration of divine offices
forbidden under censure such clerics as have sustained
a declaratory or condemnatory sentence of excom-
munication, interdict or suspension, incur the same inter-
dict from entry into the church, under the same condi-
tion of sufficient satisfaction,
a) The term admittcntes includes all clerics, higher or
lower, with the exception of bishops (can. 2227, §2).
Prelates regular or their subjects, also chaplains, and
custodians of clerical rank, are also included.10
b) Those ad7nitted are clerics under censure. Hence
13 D'Annibalc, /. c, p. 135, n. is Can. 2229, 8 2; but sponte must
218: see can. 1260. not be read into the text except as
14 C 8. 6°, V, 7. Regulars far as the canon quoted allows.
caused trouble in regard to main- lfl D'Annibalc, /. c, p. 136, n.
taining the interdict. aao; Hollweck, I. c, p. 338, cote a.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
356 PENALTIES
a vindictive penalty is excluded. Besides, the censure
of either excommunication or (personal) interdict or
suspension must have been either declared or incurred by
a condemnatory sentence. On the other hand, it matters
nothing whether this sentence was declared or issued in
a condemnatory way by the Pope, or by the bishop, or
by a religious superior.
c) Scienter must be connected with adniittentes, and
therefore can. 2229, » §2 is applicable. But light fear or
compulsion would not be sufficient to escape the penalty.17
b) The penalty for both transgressions enumerated in
§3 of our canon is the interdict ah ingressu ecclcsiae, as
defined in can. 22JJ.
If the cases mentioned in can. 2261, §2 and §3, or in
can. 2270, are verified, a cleric may be admitted to the
administration of the sacraments without incurring a
penalty.
§4 of can. 2338 states that those who were the cause
of a local interdict, or of an interdict laid upon a com-
munity or corporation, arc ipso facto personally inter-
dicted. The cause or reason is described in a Decretal
of Boniface VIII as identical with, or at least correlated
to, guilt, malice, or fraud.18 Hence the persons affected
are the principals in a crime, or the instigators or ring-
leaders, for instance, in a parish disturbance interdicted
by the bishop. The consequence, of course, is that the
privation attached to the personal interdict, as stated in
can. 2275, takes effect. This is so true that, even if a
privilege had been granted of not observing the interdict,
it would not avail the person privileged if he were the
cause of the interdict.1'
a
XT C. in 6', V, 7. see above page 214; it undoubtedly
18 C. in 6°, V, 7: c. 24 Alma, refer* to the author or originator
6",V, 11. or ringleader of procedure forbid-
IB What " can tarn dare" implies, den by the Church under penalty
of interdict.
.'Ie
C* ^ ^ -%\s% Original from
UNIVERSITY OF WISCONSIN
CANON 2339 357
EXTORTION OF CHRISTIAN BURIAL
a
h
Can. 2339
Qui ausi fuerint mandare seu cogere tradi ecclesi-
asticac sepulturae infideles, apostatas a fide, vel
haereticos, schismaticos, aliosve sive excommuni-
catos sive interdictos contra pracscriptum can. 1240,
§ 1, contrahunt excommunicationem latac sententiae
ncmini reservatam ; sponte vero sepulturam eisdem
donantes, interdictum ab ingressu ecclesiae Ordinario
reservatum.
o<
What a Christian burial consists in is explained in
can. 1204. It comprises the transfer of the corpse to the
church, the exequies held in church, and burial in the
graveyard. The principle that governs Christian burial
is this : With those with whom we have had no com-
munication in life, we should not communicate in death.1
Since the Church honors those who died in her com-
munion, and punishes those who despised her in life, it
is an attempt against her authority to extort a favor
which she refuses. A ceremonious or at least decent
burial has ever been coveted by all whose sense of
honesty and decency has not been entirely stifled.
Therefore, societies, confraternities, and guilds sur-
round the burial rite with much splendor. The Church
is plainly entitled to show her respect for her faithful
members and to refuse the honors of a Christian burial
to those who disobeyed her. The privation of Christian
burial is a penalty. Our canon says :
Those who dare to command or to compel (the
Church authorities) to give a Christian burial to infidels,
iC. 2, X, III, 38.
jle
Original from
UNIVERSITY OF WISCONSIN
358
PENALTIES
■
apostates from the faith, heretics, schismatics, or otlur ex-
communicated or interdicted persons, contrary to the
rule laid down in can. 1240, §/, incur the excommuni-
cation latae sententiae reserved to no one in particular.
U The terms " mandantcs" and " eogentcs" are taken
from the " Apostolicae Sedis," where, however, the phrase
ausi fuerint is omitted. Commentators on the aforesaid
Constitution are divided as to the intent of this command
— whether it exclusively affects persons in authority,
more particularly the public power, or private persons
also.2 A mandans, broadly speaking, is one who begs
or orders some one else to do something in his name.8
This, however, does not necessarily suppose public au-
thority ; any one may be a mandans, as any one may be a
mandatarius, unless forbidden by law. Besides, there is
no question here of protecting or defending a right,
which was forfeited a priori. Therefore no appeal or
recourse, as in can. 2333, is required or supposed, as if
a violation of one's right had taken place.
Note that the text is not disjunctive, i. e., either — or.
The word scu may just as well be taken in the sense of
juxtaposition or opposition.4 Therefore, the cogenics
arc closely related to the mandantcs and may even be
taken as differing from them merely by the means they
employ. For whilst mandare means begging or com-
manding one to do something in another's name, cogere
3 I IV. I. Mandantes scu eogentes
tradi ecctesiasticae scpulturae hae-
retieot notorios aut nominatim ■-:■-
communicatos vel interdictos. ..
S VI. a. Scienter celebrant es vcl
cetebrari facientes divina in locis
ob Ordinario, iel delegate iudice,
vel a iute interdictis, aut nominntim
excommunicotos ad divina officio,
ten ecclesiastic* jacranienta, vel
ecclesiasSicatn sepulturam admit-
tcntes, interdictum ob ingrcssu Ec-
clesiae ipso iure incurrunt, donee
cd arbitrium eius, cuius sententtam
eontempserunt, comPetenter satis-
jecerint. (Afost. Sedis).
a Pcnnacchi, I. c., II, 65 f. ;
Hollwcck, /. c, p. 314, note 3»!
D'Annibale, I. c.t p. 13, n. 12.
4 Disjunctive arc vel — vel: au» —
aut; seu or sive, in classical lan-
guage, denotes ■■-!-. i if, or if, even
if, although.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 2339 359
signifies to induce or impel one to do something by com-
pulsion, grave fear, or serious threats.5 Therefore, the
tnandantes or cogentes may be public or private persons,
for instance, an assistant commanded or compelled by
the pastor, dean, vicar-general, or bishop, or a mayor or
governor, or a patron or private citizen, especially of the
influential kind.0 The term ausi fuerint presupposes
knowledge and free will.7
2. The object of this command or compulsion must be
ecclesiastical burial, which, as stated above, cdmprises
three acts.
The question arises: Are all three acts equally
essential to the burial service, so that if one of them
were omitted, the penalty would not be incurred? It
is an ancient controversy, which act precisely was for-
bidden or intended by the penal law. The more com-
mon opinion accepted the burial place as intended by the
legislator, not the liturgical ceremonies and prayers.
However, notwithstanding this being the common
opinion before the promulgation of the Code, it must now,
we think, be abandoned. For can. 1204 is decidedly
a.
against such an interpretation, and we cannot depart
from the significance of a term so clearly defined by the
legislator himself and then used without any further ex-
planation. Therefore, we take Christian burial as de-
fined in can. 1204, but will add an explanation. In our
country the transfer of the body under liturgical prayer
is not in vogue. Besides, it not infrequently happens
that the body is not buried from the church. It may
even be that it is buried in a non-Catholic cemetery, and
a
a
6 TVnnacchi, /. c, II, p. 68. Thus 0 Graved igscrs. nallhearers, and
also Eiclimann, /. c, p. 159; what other participants arc not included.
Cappello, /. e.M p. 137, says, is mean- 7 Pennaccbi, /. c, II, p. 68 ff.;
ingiess. Xlollweck, /. ft, p. 314, note 5.
■-:
►ogle
£ " ^ s ^\t^ Original fro ni
UNIVERSITY OF WISCONSIN
360 PENALTIES
though this is contrary to the will of the Church (can.
1205, §1), no penalty is imposed. Consequently nothing
remains of ecclesiastical burial but the exequies, or fu-
neral services strictly so-called, j. e., the blessing before
Mass, the Mass, and the absolutio. This no doubt consti-
tutes the essence of Christian burial.8 If only the grave
can be blessed, as is the case where all are buried in a
common graveyard, the locus sepulturae cannot be under-
stood in our text. Times are different now, and unless
wc wish to maintain that this canon applies only to Cath-
olic countries under normal conditions, we must admit
that Christian burial here signifies merely the exequies,
i. e.r the blessing of the corpse before and after Mass, and
the exequial Mass itself.
3. The persons whose bodies are not allowed to be
given Christian burial, are:
a) Unbaptised persotis or infidels. Concerning babies
to be buried with their mother, we believe that the benign
interpretation can safely be held, without incurring the
penalty. The phrase ausi fuerint at least permits such
an assumption.
b) Apostates from the faith, provided their apostasy
was notorious;
c) Heretics and schismatics, provided they notoriously
belonged to a non-Catholic sect or schismatic body;
d) Other excommunicated or interdicted persons,
after a condemnatory or declaratory sentence.
According to canons 19 and 2219, § 1, the interpreta-
tion of such laws as this is both strict and benign.
Therefore the burial of the other persons named in caa
1240, §1, n. 3-6 would not fall under the penal sanction
of can. 2339. However, if, e. g., a Freemason had pro-
8 Thus also Eichmann, /. c, p. 159. Note should be taken of can. 121a
and 1241.
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 2340 361
voiced a declaratory sentence, according to can. 2335, not
only the prohibition, but the penalty also would take
effect. Otherwise it is a mere prohibition.
4. Whilst so far only the nwndantcs sett cogentes were
considered in connection with Christian burial, the second
clause of can. 2339 punishes also those zvho, of their
own accord, give a Christian burial to the persons enu-
merated above. These, being clerics, incur the interdict
which prohibits them from entering any church, and it
is reserved to the Ordinary.
The Ordinary of exempt clerical religious may here
be understood to be their superior or the local Ordinary,
inasmuch as burial concerns divine worship. Hence
can. 616, § 2, is applicable here, but the penalty is
incurred only if the ecclesiastical authority has granted
ecclesiastical burial (♦. e., funeral rites, as stated above,
not merely interment) sponte, i. e., with full knowledge
and freely, without being compelled by any one; there-
fore, even light fear would excuse him from the penalty.
PERSEVERANCE IN CENSURE
Can. 2340
§ 1. Si quis, obdurato animo, per annum insor-
duerit in censura excornmunicationis, est de haeresi
suspectus.
§ 2. Si clericus in censura suspensionis per semestre
perseveraverit, graviter moneatur; et si, exacto a mo-
nitione mense, a contumacia non recesserit, privetur
beneficiis aut ofnciis, si qua in Ecclesia forte habeat.
This canon contains two sections, one of which con-
cerns excommunication, the other suspension.
I Original from
lOOglt UNIVERSITY QFWI5C0NSIN
■
pi
362 PENALTIES
1. Whoever stubbornly remains under a sentence of
excommunication for one year, is suspected of heresy*
because it may be presumed that he spurns the Church,
more especially the power of the keys, and therefore
doubts an article of faith.2 However, it is a simple pre-
sumption, not one iuris et de iure, and therefore any
plausible reason, or an offer to prove that he was pre-
vented from asking for absolution, would suffice to purge
the culprit from the suspicion of obstinacy.
Obduracy also supposes a warning, which must take
the form of a canonical admonition.8 The law does not
distinguish between an excommunication a iure and one ab
homine, much less between a vitandus and a toleratus.
Can. 2385 provides that an apostate from a religious
organization, after a year or 13 months,4 becomes sus-
pect of heresy, if he does not return or take steps to be
dispensed from his vows, or have himself secularized,
2. A cleric who remains for six months under the cen-
sure (not vindictive penalty) of suspension, must be
seriously admonished; if he does not give up his con-
tumacy zvithin a month from the date of the warning,
he is to be deprived of his benefice or the offices he fnay
hold in the Church.
Although this text mentions only suspension, and,
therefore, concerns only clerics, yet the penalty stated in
§1 is not thereby quashed. Consequently, if a cleric
should have contracted excommunication besides sus-
pension, he would also incur the suspicion of heresy.
The text requires a canonical warning, to be given ac-
cording to can. 2309 ; otherwise contumacy cannot be pre-
sumed.
1 See Trid.. Scss. 25, c. 3, de 8 Schmalrgrueber. V, 39, n, 195;
ref.; C. 7, 6% V, 2. see can. 2309.
2 Reiffcnstuel. V. 30. n. 7. * See can. 64a, fi 1, J.
§le
v ,1,., Original from
UNIVERSITY OF WISCONSIN
-■
CANON 2341 363
A doubt may arise as to what kind of suspension is
here intended, general or special. Can. 2278. § 2 seems
to point to a general suspension, and therefore, a
special suspension from either office or benefice, or a
partial one, would not seem to fall under this canon.0
VIOLATION OF THE PRIVILEGIUM FORI
c
S
Can. 2341
Si quis contra praescriptum can. 120 ausus fuerit ad
iudicem laicum trahere aliquem ex S. R. £. Cardina-
libus vel Legatis Sedis Apostolicae, vel Officialibus
maioribus Romanae Curiae ob ncgotia ad corum
munus pertinentia, vel Ordinarium proprium, con-
trahit ipso facto excommunicationem Sedi Aposto-
licae special i modo reservatam; si alium Episcopum
etiam mere titularem, aut Abbatem vel Praelatum
nullius, vel aliquem ex supremis religionum iuris
pontificii Superioribus, excommunicationem latae
sententiae Sedi Apostolicae simpliciter reservatam;
demum si, non obtenta ab Ordinario loci licentia,
aliam personam privilegio fori fruentem, clericus
quidem incunit ipso facto in suspensionem ab officio
reservatam Ordinario, laicus autem congruis poems
pro gravitate culpae a proprio Ordinario puniatur.
The privilegiutn fori has been explained under can.
120. Here the penal sanction is stated, which concerns
only the actual violators, not the framers or makers of
laws contrary to the personal immunity of the clergy.1
The latter arc comprised by can. 2334, n. 1.
S Thus Eichmann, L c, p. 160; 39, n. 197) simply says suspension,
c. 8, X, I, 14 as well as other without further determination,
commentators; SchmaUgrucber (V, l The "Apostolicae Sedis," 1. 7»
oogle
Original from
UNIVERSITY OF WISCONSIN
364 PENALTIES
The present canon* distributes the clergy into three
classes, with a special penalty for the aggressors of each.
I. Excommunication reserved modo special* to the
Holy See is incurred ipso facto by those ivho dare to
drag before a lay judge (civil court) cardinals, legates of
the Apostolic See or higher officials of the Roman
Court concerning affairs wliich belong to their office, or
their otcn Ordinary.
I. " Trahcre ad iudicem laicum " means to compel one
to appear before a lay judge, who has no jurisdiction
over clerics, who have a judge of their own. But
trahcre (to drag) must not be understood literally, as if
it required physical compulsion, e. g.r by a policeman.
The act declared punishable in this canon begins with
the summons and ends with the final sentence and its
execution. However, the term also has the definite
meaning of an accomplished fact. Therefore, a mere
judiciary summons, if unheeded or retracted, would not
constitute the crime here intended. Even if a sub-
poena 2 should have been issued, the crime would not be
established if the defendant would not appear.8 De-
nouncing a clergyman to the State's attorney would not
fall under this canon, though it might be classified as an
inchoate crime.4 On the other hand, the mere fact of
being called and compelled to take the witness stand,
is sufficient,6 for this is a judiciary act and supposes a
tribunal. Neither does it matter whether the clergy-
•ays: " Cogcntes sive directc, sive in- a This is evident from the
directe indices laicos ad trahendum "Quantavis dUxgentia," of Pius X,
ad suum tribunal personas ecclesias- Oct. q, iqii (A. Ap~ S., Ill, ■'-•->:
ticas Procter canonical dispositions : "qui ad tribunal laicorum vocent
item edentes leges vel drcreta contra ibique adesse publice compelUnt."
libertatem a*t iura Ecclesiae." * See can. aaia; Eichmann, L eH
2 A subpoena is a judicial writ p. 164.
cnmmarvlirg a party or witness to S See Vol. TI, p. 63 f. of this Com-
appear in court under penalty; mentary.
Stimson's Law Dictionary, s. v.
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 2341 365
a
Q
man wins or loses the suit, or is remunerated or com-
pensated.
The Code here again employs the words " ausus fuerit,"
which suppose a knowledge of the unlawfulness of the
act proscribed. One must know that the person thus
called to court is a cleric in possession of his clerical
privileges ; fl also that there is a privileged court for
Catholic clergymen. If inculpable ignorance existed on
this point, the plaintiff would not incur the penalty. If
he knew of the pfivilegiitm fori, but not of the penalty
here stated, his responsibility would be diminished.7
From this it may logically be deduced that lower officials
3!
who arrest a cleric and hale him into court because the
a
laws of the country demand it, are immune from- this
penalty. But private citizens, who effectively denounce,
summon, subpoena or bring suit against a clergyman
cannot escape the penalty, suppositis sn-pponendis, as just
stated. It makes no difference whether the judge be-
fore whom a cleric is haled sits in the civil or in the
criminal court, for no distinction is made.
2. The persons who must not be brought into the civil
courts are:
a) The cardinals of the Holy Roman Church, because
they are of princely rank and constitute the immediate
senate of the Pope;
b) The legates of the Apostolic See, whether nuncios,
internuncios, or Apostolic delegates; for can. 265
appears to include this threefold class as representatives
of the Pope;
c) The higher officials of the Roman Court. These
arc not specifically determined, but may be described as
follows :
g
-
flSee can. 123, 2304, 3305. 7 Sec can. 2203.
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
■
366 PENALTIES
For the Holy Office, the assessor and the commissarius;
For the Congregatio Consistorialis, the assessor and
the substitutes;
For the Congregatio de Sacramentis, the praelatus a
secretis and the three subsecretarii;
For the Congregatio Concilii, the praelatus a secretis
and the subsecrctarius ; and similarly for the other con-
gregations, which are made up in the same way. If we
do not mention the Cardinal Prefect, who also belongs
to the higher officials, it is because cardinals are ex-
pressly exempted as such.
The Tribunals of the Holy See comprise :
The Poenitentiaria, with the cardinal Pbenitentiarius,
the regent, the secretary, and the substitute ;
The Signatura Apostolica with its secretary;
The Rottuxna Rota with its auditors, promotor iusti-
tiae, and defensor vinculi.
The Offices comprise:
The Cattcellaria Apostolica with its regent and sub-
stitute ;
The Dataria Apostolica with its subdatary and pre-
fect;
The Camera Apostolica with the vice-camerlengo,
auditor general, and treasurer general.
None of these higher officials may be brought before
a lay court on account of affairs zvhich pertain to their
office. This phrase does not refer to the cardinals or
legates, but to the officials just named. The importance
of the matter and their close relation to the Pope requires
a higher sanction for their immunity.8
a The " Sapient 1 conMio " of Piui 0 If these higher official* were
X, June 29, 1908 refers to ad- cited before a lay judge for mat-
rninistri maiorcs, who are identical ters of a private character, inher-
with the officiates maiorcs (A. Ap. itance, property, affairs of relatives,
S., /, 78 ff.).
jle
% ,1,., Original fro m
UNIVERSITY OF WISCONSIN
"
CANON 2341 367
d) One's own Ordinary is here classed with the high-
est persons, and offenders against this enactment are
threatened with severe penalties because the Ordinaries
are immediate representatives of the Pope, upon whom
their jurisdiction depends. Therefore an attack against
them is a qualified offence by reason of the implied con-
tempt of a higher authority.10 Note that the text simply
says "Ordinary" without the addition; "local." There-
fore, if a religious of an exempt clerical order should
dare to hale his own superior into a civil court, he would
incur the penalty stated above. To bring any of these
personages before a lay court requires permission from
the Apostolic See.11
II. Excommunication latae sententiae, simply reserved
to the Apostolic See, is incurred by those who dare to
drag before a lay judge another bishop (i. e., not their
own Ordinary), or a titular bishop, or an abbot nullius
or prelate nullius, or one of the major superiors of re-
ligious of papal institutes. Who these major superiors
are, is plainly stated in can. 488, n. 8. If such persons
are to be brought into court, the permission of the
Apostolic See must be obtained.12
III. Those who dare to bring before a lay court any
other persons endowed ivith the clerical privilege, the
privilegium fori, are, if permission has not been obtained
from the local Ordinary, to be punished as follows :
1. A cleric who dares to bring another cleric before
the lay court ipso facto incurs suspension from office
reserved to the Ordinary;
2. A layman must be punished by his own Ordinary
according to the gravity of the guilt.
the penalty staled in the first clause (to which latter also belong moo-
would not be incurred, but one of signon).
the following (2) clauses would be u> See can 3207. n. 1.
applicable according to the hicrarchi- S3 See can. 120, I 2.
cal rank: titular bishops, clergymen, 11 Ibid.
■'■
oogle
, ,1,., Original fro m
UNIVERSITY OF WISCONSIN
368 PENALTIES
St
The other persons here meant are those not specially
mentioned under I and II; hence all clerics of secular
rank, from vicar-general down to those who have received
the first tonsure; of religious superiors all those who do
not go by the name of higher superiors (generals, pro-
vincials and those who hold power equal to provincials),
i. e., all religious except those mentioned, of male as
well as female organizations, and their novices.
A difficulty remains concerning exempt clerical relig-
ious. These must obtain permission from the local —
not the religious — superior in order lawfully to hale
•a
either a secular or religious cleric into court. But to
whom is the suspension reserved? As the text does
not here repeat the "loci" of the first clause, it follows
that the Code means their own superior, not the local
Ordinary, to whom they are not subject. There is no
contradiclion in this. For the obtaining of permission is
a matter of public discipline for the whole diocese, but a
reservation that belongs to the Order is of mere ecclesi-
astical jurisdiction. The suspension from office is to be
understood according to can. 2279, §1.
What we have said elsewhere J3 concerning concordats
and custom, can safely be applied to our country.
Q
PAPAL ENCLOSURE
Can. 2342
Plectuntur ipso facto excommunicatione Sedi
Apostolicae simpliciter reservata:
i°. Clausuram monialium violantes, cuiuscunque
generis aut conditionis vel sexus sint, in earum mo-
nasteria sine legitima licentia ingrediendo, pariterque
11 Vol. II, p. 64.
>Ie
j , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2342 369
eos introduccntes vel admittentes; quod si clerici sint,
practerea suspendantur per tempus pro gravitate
culpae ab Ordinario denniendum ;
20. Mulieres violantes regularium virorum clau
suram et Superiores aliique, quicunque ii sint, eas
cuiuscunque aetatis introducentes vel admittentes; et
praeterea religiosi introducentes vel admittentes pri-
ventur officio, si quod habeant, et voce activa ac
passiva ;
30. Moniales e clausura illegitime exeuntes contra
praescriptum can. 601.
This whole canon concerns regulars and nuns only;
therefore, even exempt religious of male congregations,
and all female religious with simple, even though per-
petual, vows are not affected by it. The text treats first
of the enclosure of nuns, then of that of regulars, and,
finally, of nuns unlawfully leaving the cloister.1
I. Those who, no matter of what rank or condition
or sex they be, violate the enclosure of nuns by entering
their monasteries without lawful permission; liketvise
those who introduce or admit such znolators, ipso facto
incur the excommunication simply reserved to the
Apostolic Sec, If they are clerics, they shall, besides,
be suspended for a time to be determined by the Ordinary
according to the gravity of the crime.
1. The enclosure is the whole space contained within
the precincts of a monastery, and assigned as such.2
P
\ Apostolic ae Sedis, 8 II, n. 6, 7: Moniales ab ilia exeuntes extra
Violantes clauswam moniolium casus ac formanx a S. /'<<> I', in
cuiuscumquc gtneris out conditioner, Conrtitutione "Decori" praeseriptom.
sexus vel aetatis fucrint, in carum Mulieres violantes Regularium vi-
monastcria absque legitima titcntia rorum clausuram, *% Superiorer
ingrediendo ; fariterque eos intro- aliosve eas admittentes.
ducentes vet admittentes; itemque 2 Gibalini, S. J., Disquisitiones
•■-.
i by Google
Original fro ni
UNIVERSITY OF WISCONSIN
370 PENALTIES
Note that the limits once drawn cannot be arbitrarily
changed. The constant practice of the Roman Court
demands that the bishop superintend the enclosure of
nuns; a to him also must be referred any change of the
limits.
2. The violantes are here determined, first, as ingre-
dientes, which means that the law * of enclosure is tres-
passed by one entering the limits or threshold with his
whole body, and without the necessary permission. This
is given and determined by can. 600, which permits the
local Ordinaries and superiors regular, the confessor
or his substitute, the actual rulers and their wives and
suite, and Cardinals to enter the precincts for certain
reasons there stated. Besides, the superiors may also
admit, if necessary and with the permission of the local
Ordinary, physicians, surgeons, and workingmen. These,
therefore, are permitted to enter and do not incur
the penalty of this canon, provided the conditions set
forth in can. 600 are verified. Where there is a case of
violation of the enclosure, neither descent (birth), nor
social condition, or sex makes any difference. But age
does. For the Code does not add aetatis and therefore
impubcres, according to can. 2230, do not incur the
penalty here mentioned, although they, too, are forbidden
to enter the enclosure.
3. Introducentes or admittentcs. The former term
signifies effective invitation, or leading the way by
opening the gate (private entrance), provided the intro-
ducing person (one of the nuns) is on the inside and
Canonicat de Clawura Regulari, have perused in Rome; but the
Lugduni 1648, p. 51; D'Annibale, papal constitutions suffice,
1. c, p. 8a, n. 123. * Older law.*; Carth. HI, can. 33
3 We could allege many decrees etc., (Gibalini, /. c, p. 5; Hollweck,
of tbe S. C. EE. et KK., which we /. c, p. ui f .) ; c. un. 6% 111, 10;
Trid., Sets, as, c. 5, de regg.
•■:
oogle
k ,1,., Original fro m
UNIVERSITY OF WISCONSIN
CANON 2342
37*
■
really cooperates in the induction of a forbidden person.
To admit means: not to prohibit or not to close the
entrance if this is necessary and can easily be done.
This, some authors say, is the duty of the superioress
and portress only.5 Others extend it to all persons
(nuns) who can and may easily prevent an unlawful
entrance-8 Of course, the rules of politeness, shyness,
and circumstances may keep one from mentioning the
law of enclosure if this has already been trespassed, and
in this case certainly the censure would not be incurred.
Those who merely counsel or command the violation,
for instance, an Ordinary who would unjustly order it,
would not incur excommunication.7
II. The enclosure of regulars is violated by women
entering it, by superiors and others, zviwever they be,
who introduce or admit women of whatever age. All
these incur the ipso facto excommunication simply re-
served to the Apostolic See. The religious who introduce
or admit women, must be deprived of the office they hold
and also of the active and passive vote.
1. What is to be understood by the name of enclosure
has been stated above.6 However, what Suarez says,
seems to be very reasonable and more adapted to the
real condition existing in monasteries of male religious :
" What is to be understood by the name of cloister, and
where it ends, must be judged from the locality, form,
sGibilini. /. c, p. 165; D'An-
nibale, /. c, p. 83, n. 123.
0 Pcnnacchi, /. C, I, 74*1 Holl-
weck, I. c, p. 225, note 12.
7 D'Annibale, /. c. However, this
must be rightly understood; for
religious superiors who would com-
mand it, would not escape the pen-
alty; such an interpretation would
render the law ridiculous and
nullify its effect.
8 Ferraris, Prompta Bibliotheca,
s. v. " VonvenHs," art. Ill, n. 9 f;
cemeteries, courtyard, cells, dormi-
tories, refectory, infirmary, kitchen,
also gardens if joined to the mon-
astery, the sacristy if it has only
an entrance from the enclosure, but
not the choir of the church; thus
also D'Annibale, p. 85, n. 127.
>Ic
Original fro m
UNIVERSITY OF WISCONSIN
■
372 PENALTIES
and custom, and especially from the declaration of the
prelate, which must be in conformity with the respective
constitutions and religious discipline." • This, we say,
is a very reasonable interpretation, because not all mon-
asteries are built the same way, or surrounded by the same
conditions. But one thing is certain, vis.: that the prel-
ate is not at liberty to change the limits of the enclosure
arbitrarily. They must be determined once for all and
may be changed only in case of real necessity, and then
permanently, not ad hoc, £ e., merely to escape the law.
Such a procedure would render the supreme legislator
ridiculous and the object of enclosure nugatory.10 An
enclosure for regulars, no matter how small it be, must
be definitely assigned. This is the will of the lawgiver,
and it is most reasonable.
2. The violators here intended arc zvetnen, not men.
Exempted" from this rule are the wives of actual rulers
and their suite. In the U. S. there are no such rulers
(qui supremum actu tenent principatum; can. 598, §2) ;
if any come as visitors from foreign countries, a
president's or governor's wife accompanying them
might be admitted.11
3. Here again the introduc&ttes and admittentcs are
mentioned, and the term is more clearly explained.
They are the superiors and others. The name superior
comprises all superiors, whether higher or lower, general,
provincial or local. The procurator and other officials
go here by the name of " others. " By alii were formerly
understood only religious, clerics, lay brothers, or
» De Retisj., c. I, c, 7, n. 2 (erf. 1 1 Yet ii would be no rigorous in-
Paris., 1860, Vol. XVI, 41). terprctation to say that since such
xo The purpose is: servanda cos- ruler* do not actually rule in our
titas, standalum praecsvendum el country, their wives may therefore
necessariuj spiritus noollectionis. be excluded.
>Ie
J , Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 2342 373
novices, not outsiders.12 This interpretation was justified
by the text of the " Apostolicae Sedis." But as the
Code adds : " quicunque ii sint/' we believe that a wider
interpretation is now justified, •. e., any one who know-
ingly and freely introduces or admits women into the en-
closure, whether he be a lay janitor or a hired man, or an
employee of the monastery. Those, however, who
have nothing to do with the monastery, are excluded, be-
cause they have no right either to introduce or to admit
others.
Note the phrase cuiuscunque aetatis, no matter of what
age these women be, old or young; also those between
twelve and seven years of age; and, we believe, also in-
fants, vis., girls who have not yet reached the age of seven.
It is quite true that the commentators on the * Apostolicae
Sedis " exempted those not yet seven years of age, because
not capable of guilt.18 But it should be noted that said
Constitution employs the clause " of whatever age " under
the enclosure of nuns, but omits it under the enclosure of
men. Our text on the other hand connects this clause
with the introducentes, and hence we maintain that it was
done purposely, so that no women or girls of whatever
age may be introduced by the religious under penalty of
excommunication. Neither does the fact that these in-
fants (scptennio minores) arc not capable of guilt affect
the merit of the question; for the guilt is referred to the
mtrodi&enlcs. Of course, if the introducentes can not dis-
tinguish a boy from a girl — which mistake is possible —
no censure is incurred.
Note that the purpose of entering, introducing or ad-
mitting any one to the enclosure, whether good or bad,
IS Thus D'Annibale, /, c, p. 85, n. RR. included also pneror et paellas;
ia8; Hollwcck, /. ft, p. aaa. note 5. March 16, 159J; June 10, 1650:
13 Thus, we say, by general in- Regesta of the respective years, Reg.
terpretation; for the S. C. EE. et fol. 11S, fol. 260; see can. 2230.
►ogle
% .J,., Original from
UNIVERSITY OF WISCONSIN
374
PENALTIES
■
does not change the nature of the law or quash the
penalty.
The penalty for religious is privation of their offices
and of the active and passive vote. This also concerns
the superiors, of whatever rank, as is evident from
former papal Constitutions.1*
But since it is ferendae sententiae, which certainly re-
quires a declaratory sentence, it follows that concerning
exempt religious the declaration would have to be given
by their respective immediate superior, otherwise by the
Congregatio Religiosorum, to which such cases might be
brought
Simple religious must be deprived of their office and
ballot by their immediate superior.
Concerning dispensation and absolution in occult cases
see can. 2237, §3.
III. Nuns with solemn vows, who leave the enclosure
against the law, as stated in can. 601, ipso facto incur
the excommunication simply reserved to the Apostolic
See.
To leave the enclosure means to put the whole body
outside the limits assigned, no matter for how long a
time or for what purpose.15 The reasons which permit
this are imminent danger of death or fear of a very
serious evil. The former law mentioned as reasons : fire
leprosy, and epidemics.10 This may safely be extended to
14 Pius V. * Rfftjularium," Oct.
34. 1506, 9 41 Grebory XIII, " Ubi
gratia*," June 13, 1575, i 3'. Bcned.
XIV, '•Regularis discipline/' Jan.
3. 174S, 5 5.
13 We read many nnd curious
cases of leaving brought to the
S. Congregation; a nun gathering
apples on a tree, a limb of which
she climbed and thus happened to
find herself outside the wall; — ac-
quiescent; a nun climbing the house
top. which seemed more serious; —
at least provisional absolution. But
uniazvfui here implies acting know-
ingly against the law, and there-
fore cases like those just mentioned
should not cause scruples.
10 Epidemic may be justly taken
for a contagious or even infec-
tious disease, such as consumption,
even influenza; there is also the
necessity of undergoing an opera-
tion.
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 2343 375
earthquakes and sudden invasions, or serious danger to
virtue.
Absolution in occult cases may be granted by the local
Ordinary according to can. 2237, §2. But in public
cases bishops can absolve only if they have a general
faculty (can. 2253, n. 1).
VIOLATION OF THE PKIVILEGIUM CANONIS
Can. 2343
§ 1. Qui violentas manus in personam Romani
Pontificis iniecerit:
i°. Excommunicationem contrahit latae sententiae
Sedi Apostolicae specialissimo modo reservatam; et
est ipso facto vitandus;
20. Est ipso hire infamis;
3°. Clericus est degradandus.
§ 2. Qui in personam S. R. E. Cardinalis vel Legati
Romani Pontificis:
i°. In excommunicationem incurrit latae sententiae
Sedi Apostolicae special: modo reservatam;
2°. Est ipso iure infamis;
30. Privetur bencficiis, officiis, dignitatibus, pesio-
nibus et quolibet munere, si quod in Ecclesia habeat.
§ 3- Qui in personam Patriarchae, Archiepiscopi,
Episcopi etiam titularis tantum, incurrit in excom-
municationem latae sententiae Sedi Apostolicae spe-
ciali modo reservatam.
§ 4. Qui in personam aliorum clericorum vel
utriusque sexus religiosorum, subiaceat ipso facto ex-
communicationi Ordinario proprio reservatae, qui
praeterea aliis poenis, si res ferat, pro suo prudenti
arbitrio eum puniat.
§le
Original fro m
UNIVERSITY OF WISCONSIN
37^
PENALTIES
■
This canon contains two censures which the " Apo-
stolicae Sedis"1 placed under distinct headings. Here
they are combined under the one species of personal
inviolability, or the so-called privilegium canonis, the
historical basis of which has been explained elsewhere.*
" Violentas ntanus htiicere" is a remnant of the famous
old canonf " Si quis suadcntc diabolo. " Malicious intent
is presumed if the action is such as to hurt and offend
the person against whom it is directed.
i. Violent implies that the person be really injured.
a) A bodily offence is one committed against the
physical nature or constitution of a man (in corpus). To
this class belong all acts of felonious murder, man-
slaughter, maiming,0 assault, battery and wounding.
Tantamount to felonious assault would be the administra-
tion of poison or other noxious things which inflict
grievous bodily harm.'* As to wounding, the skin
must be broken ; a mere scratch is no wound.5
b) Personal, physical injury may also be committed by
interfering with one's liberty (in libertatem). Thus
capturing or imprisoning or detaining a person against
his will must be styled violence. For " to deprive
another person of his liberty will usually involve either
i fi 5- "Omnes inter ficienles,
mutilantct, percutientes, capienies,
carcerantej, detinentes, vel hostiliter
insequentes S. R. C. Cardinalcx,
Patriarchal, Arekiepltcopoj, Epneo-
pos, Sedisque Apoxtolxcae Lcgatos,
vet Nuncios, ant eos a suis dioece-
sibus, territoriis, terris sett dominiis
eiicientes, necnon ea mandantes vel
rata habentes tcu proeslantes in eis
auxilium, vel favorem." 5 II, a:
"r'iolentus manic, suadentc diabeto,
imjicientes in Clericos, vel utriusque
sexHi Monachoj, exccptU quoad
reservationem casibut et personis,
de quibus iure vet pnvilegio permit-
titur, ut Efticopus ant alius ab-
solvat."
2 See Vol. II, p. 58 of this Com
mcntary.
a Maiming from mayhem; thus
to cut off a finger or even to knock
out a front tooth would be mayhem;
Kenny-Webb, /. c,, p. 135.
*2bid., p. 137; D'Annibale, /. c,
p. 35. n. 50.
5 Kenny- Webb, /. c.
jle
Original fro ni
UNIVERSITY OF WISCONSIN
f
CANON 2343 377
touching or threatening to touch him."6 Detention
may be such as to shut one up in his room or home.7
c) A person may also suffer bodily harm in his dignity,
or official condition, or social position Thus pursuing
a man, ejecting him from his own property, house or
premises constitutes a physical injury, provided it is
done in a hostile spirit, even though no immediate
contact is involved between the assailant and the assailed.
Thus merely spitting at a person, or bespattering him
with mud or rotten eggs, etc., would constitute
an indictable offence; also stopping a horse or auto-
mobile with hostile intent or striking the horse or shak-
ing the vehicle so as to throw out the rider, would be
considered a hostile act.8
2. The action must not only be violent, but also
injurious, i. e., affect the person contumeliously against
his own will and be perpetrated with knowledge of the
injury done. Consequently:
a) Self-defence is not injurious, for the injured must
impute it to his own conduct if he is injured in the act
of aggression. Hence self-defence is permitted if
practiced hie et nunc and the amount of force used does
not exceed the immediate need. This is also extended
to the defence of one's wife, mother, sister, and
daughter.0
b) Knowledge of injury is absent if the violence is
committed against a cleric who is not known as such.
Therefore, if a cleric has been reduced to the lay state,10
the penalty would not be incurred, even though he would
O Ibid., p. 143. one's property (Kenny-Webb, /. e.,
7 D'Annibale, .'. c, p. 71, n. p, 144) is not acknowledged in
109; p. 35, n. 50. Church law; Hollweck, /. c, p.
8 Kenny -Webb, /. ft, p. 14*; 219. note 3.
D'Annibale. /. c, p. 35, n. 50. 10 See can. 136. f 3; 141 9 a; an.
9 C. 3, X, V, 39- Defence of 9 1. a; 640; 3305, S *J aa»7-
►ogle
j Original from
UNIVERSITY OF WISCONSIN
378 CANON 2334
wear the clerical dress with a big tonsure on his head.
If one would try to strike at James, a cleric, but hit
Brutus, also a cleric, he would incur the penalty, because
the privilege is not individual, but attached to the
clerical state.11 But no fpenalty is attached to the
corrective striking or beating of children, provided the
chastisement is reasonable and the instrument one not
likely to inflict serious bodily harm, and provided the
pereussus be not in sacris.1* Some authors ia also exempt
the case of sudden anger or wrath; which may be ac-
cepted, provided can. 2206 is verified. An involuntary
striking or wounding or even killing of a cleric must be
judged according to can. 2203, §2, and is generally
immune from penalty. Finally, it may be stated that
only the actual perpetrator is punishable and instigators
or counselors are not included in this penalty.
After this somewhat lengthy exposition we have but
to explain the penalties, which are graded according to
the dignity of the offended person, as per can. 2207, n. 1.
1. Those who lay violent hands on the person of the
Roman Pontiff:
a) incur the excommunication latae sententiae re~
served modo specialissimo to the Apostolic See and are
ipso facto vitandi (can. 2285);
b) they are also infamous ipso iure (see can. 2293,
22941 §'), but this infamy no longer14 passes to the rel-
atives and descendants of the offender.
c) A cleric guilty of this crime must be degraded,
which is ferendae sententiae.
11 Thus also D'Annibale, p. 74, 6, q. IJ c. *a, C II, q. ij c. 5,
n. "0. 6% V, 9; c. t, Clem. V, 8, because
i=C. 54, X, V, 39; Kenny- Webb, It was treated as treason; the his-
P. 100. tone* of Leo III, Gregory VII,
ia S. Alphonbiu, VII, 575; D'An- and Boniface VIII furnish exara-
nibale, /. e. plea.
i« Formerly it did; see c. 17, C
^ ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
N
■
CANON 2343 379
2. Those who lay violent hands on a Cardinal or legate
of the Roman Pontiff (or Apostolic delegate)
a) incur excommunication latae sententiae reserved
special* modo to the Apostolic See;
b) are ipso iure infamous,
c) must be deprived of their benefices, offices, dignities,
pensions, and every ecclesiastical charge they may hold.
3. Those who lay violent hands on a patriarch, arch-
bishop, bishop (diocesan or titular) incur excommuni-
cation latae sententiae reserved modo speciali to the
Apostolic See.
4 Those who lay violent hands on the person of other
clerics or religious of either sex ipso facto incur the
excommunication reserved to their own Ordinary, who
may inflict additional penalties *if in his prudent judg-
ment he should deem it proper or if the case demands
it.
This last section calls for a few remarks.
1. Clerics are all men dedicated to the divine mys-
teries by at least the first tonsure (can. 108, §1), unless,
as already stated, they have been reduced to the lay
state.
2. Religious, in the sense of the Code (can. 488, n. 7),
are all those who have taken the three vows and live in
an approved religious institute. The same privilege is
also accorded to religious associations, according to can.
6?o. The novices (but not the postulants) of both
kinds of organizations enjoy the same favor, but not
hermits, who live for themselves, though with the ap-
proval of the ecclesiastical authority and wear a reli-
gious habit, nor secular tertiaries.15
ID D'Annibale, p. 73, n. 108, ex- ious habit at the hands of a bishop;
presses a doubt concerning such but these are not religious,
hermits as bad received the relif-
jle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
380 PENALTIES
3. Whether the so-called percussio be enortnis, or
mediocris, or levis, the Ordinary may absolve from it.
And the Ordinary of exempt religious is their superior
major general, provincial, guardian, rector, or con-
ventual prior, all of whom may absolve from any kind
of xnolatio canonis. If the superior himself should be
guilty of such an excess, he may give his confessor the
faculty to absolve him. In case of non-exempt reli-
gious, the Ordinary in whose diocese the percassor lives
as a member of a religious family, is competent to ab-
solve him.16
PUBLIC VERBAL INJURIES
Can. 2344
Qui Romanum Pontifkem, S. R. E. Cardinalem,
Legatum Roman! Pontificis, Sacras Congregationes
Romanas, Tribunalia Sedis Apostolicae eorumque
Officiates maiores, proprium Ordinariurn publicis
ephemeridibus, concionibus, libellis sive directe sive
indirecte, iniuriis affecerit, aut simultates vel odia
contra eorundem acta, decreta, decisiones, sentcntias
excitaverit, ab Ordinario non solum ad instantiam
partis, sed etiam ex officio adigatur, per censuras
quoque, ad satisfactionem praestandam, aliisve con-
gruis poenis vel poenitentiis, pro gravitate culpae et
scandali reparatione, puniatur.
■
Pseudo-Isidore ascribes to Pius I a text resembling
our canon.1 This Decretal was to protect bishops against
insidious attacks, contumelies, calumnies and all kinds
-
ifl If the case should be brought absolve also exempt religious m-
to a trial before the ordinary, the tione dclieiti.
latter would become competent to 1 C 18, C 11, q. 1.
od by GoOgle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2344 381
of verbal injuries. Clement III (1187-1191) com-
plained of a cleric who deprecated the " office and bene-
fice "(sic!) of the Roman Pontiff or the Roman Church
in the presence of many.2 No doubt this latter Decretal
is the material source of our canon. But the Roman
law, too, contained a title " De Iniuriis et Famosis Li-
bcllis," and punished especially injuries against higher
personages.8 The English law treats the scandalum
magnatum as a heinous crime.4 It is but natural that
the Code should protect dignitaries of the Church against
possible and probable attacks.
1. The persons here mentioned are: the Roman Pon-
tiff, the Cardinals, the papal legates, the Roman Congre-
gations, the Tribunals of the Roman Court and their
higher officials, as explained above,0 and one's own Or-
dinary; therefore also the superiors of exempt clerical
institutes, provided the attack comes from one of their
own members.
2. The acts which are declared liable to punishment
are : inu-rHs afheere or simultatcs aut odia excitare against
their acts (documents), decrees, decisions, sentences.
a) The word injuries is here to be taken strictly in the
sense of verbal injuries. An injury is an act done
against law or right.0 An injury, says Labeo, may be
inflicted either by deeds or words. To the latter class
a
the Roman lawyers gave the name conz/iciutn, either
singular or plural. The canonists speak of them under
the title De Maledictis 7 and divide malediction into de-
traction, calumny, and blasphemy. The last-named
crime, however, does not concern the present subject,
-
2 C 1, X, V, 26. 0 See can. 2341.
3 Dig. 47, 10. >L I, Dig. 47, 10: iniuria ex
4 Blackstoric -C ■■..■Jo; . I, c. III, to dicta est, quod non iure fiat.
«a- T Tit. 36, lib. V.
oogle
^ ,1,., Original from
UNIVERSITY OF WISCONSIN
382 PENALTIES
for blasphemy is a strictly religious crime. There is
a slight difference of opinion between canonists and
moralists as to the definition of detraction and calumny.
The commentators 8 on the above-named title define
detraction as any defamation of a person in his absence,
and calumny as an insult made in the face of the person.
The moralists 9 define detraction in general as an unjust
violation of the good name of a neighbor who is ab-
sent. Under this general notion they subsume simple
detraction, which they call imputation of a real but un-
known crime; calumny they call imputation of a false
crime or a crime not committed by the person to whom
it is attributed. In English we style all detractions
slanders if spoken, and libels if written. A libel is a
writing or picture which either defames an individual
or injures religion, government or morals. Defamatory
or private libel is a crime which not only is a tort, but
is often treated as such in actual practice.10 Since the
Church has doubtless taken the body of her criminal law
from the old Roman law, it is not too much to say that
the civil law, as understood at present, should be con-
sulted as to the constituent elements of slander and libel.11
Therefore we may assume that the injuries in question
should be of an actionable character, and it is the func-
tion of the judge to decide whether the deed, word or
writing impugned is capable of bearing the alleged de-
famatory meaning.
b) Simultates vel odia excitare are wider terms and
difficult of precise definition. The former properly
means aversion, a secret grudge, or animosity. But how
P
8 Sec Rciffenstuel, V, 26, n. 3. Blackstonc-Coolcy, /. c. III, 112 lT.
8 See Arregui, 1. c, n. \rj. n Hollweck, t, c, p. 277, note 1.
10 Kenny- Webb, I. c., p. *97;
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
CANON 2344 383
o
a judge can determine secret thoughts is hard to under-
stand. Odia is more tangible, because it signifies the
manifestations of hatred, for instance, imprecations,
threats, outbursts of irreverent speech, etc. However,
no objective criticism on the value and truth of these
documents is here intended. Neither would ridicule
or a jocose travesty constitute an offence. Notice well
that animosity and hatred are connected with official
documents issued by the above-named persons, while
iniuria afhcere may be referred only to distinguished per-
sons, because dignity or official character is impaired by
injuries.
3. The means by which slander and libel may be con-
veyed to others are : magazines, speeches, pamphlets, etc.
a) Ephemerides are periodicals published regularly,
i. e., at stated times, principally magazines; newspapers
are not comprised in the term.
b) Conciones may be either lectures, or discourses,
or sermons, or catechetical instructions, in which a sub-
ject is treated systematically.
c) Libelli are pamphlets of some size, •. e., booklets,
not mere leaflets.
d) All these may contain an injury, or excite an-
imosity or hatred, either directly or indirectly. Directly
if a specified person or body, for instance, a congrega-
tion, is assailed ; indirectly if, e. g.f the Roman Court
would be called corrupt or immoral, or if a diocese or
episcopal see were insulted. Directly may also refer to
a specified crime imputed, for instance, bribery ; indirectly
would then mean by innuendo a certain tendency or class
of crimes.
4. The penalty is stated as follows: the Ordinary
should not only proceed upon complaint or indictment,
P
'■-.
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
384 PENALTIES
but should prosecute offenders officially (criminally) by
censures if necessary. He may also inflict other suitable
penalties and penances, as the gravity of the crime and
the reparation of scandal may demand.
■
USURPING AND RETAINING PROPERTY AND RIGHTS
OF THE ROMAN CHURCH
Can. 2345
Usurpantes vel detinentes per se vel per alios bona
aut iura ad Ecclesiam Romanam pertinentia, subia-
ceant excommunicationi latae sententiae speciali modo
Sedi Apostolicae reservatae; et si clerici fuerint,
praeterea dignitatibus, beneficiis, officiis, pensionibus
priventur atque inhabiles ad eadem declarentur.
The Roman Church from the earliest times possessed
property, which went by the name of patrimony of St.
Peter, and was scattered over the Italian peninsula,
Sicily and Sardinia, nay even in Spain and France. In
the course of the eighth century this property received
the form of a Roman Duchy and was enriched by
Pippin's donations. Civil and political strifes of the
Roman, Tuscan, and Spoletan nobility and the inter-
ference of the Teutonic rulers in Italian and ecclesi-
astical affairs shaped the Duchy on the Tiber into a poli-
tico-ecclesiastical State, for which the popes, the born de-
fenders of forsaken Rome, fought tenaciously against
foreign invaders. Thus out of the material patrimony
of St. Peter, conjointly with the civil-ecclesiastical au-
thority of the Roman pontiffs, grew what is known as the
temporal dominion of the popes. This is the immediate
object of our canon, which is taken in a modified form
Go >gle
I , Original from
UNIVERSITY OF WISCONSIN
CANON 2345 385
from the " Apostolicac Sedis."x A year after the
promulgation of this Constitution (1870) Italia Unita
became a fait accompli at the cost of the Papal States.
The Law of Guarantees was devised to smooth the
worst features of that inexcusable usurpation. Under
its provisions the Pope was to continue to enjoy
the Apostolic Palaces of the Vatican and the Lateran,
with all the buildings, gardens, and plots connected with
them, as well as the Villa of Castel Gandolfo with all its
appurtenances and dependencies; also the museums,
library, and artistic and archaeological collections therein
contained.' Of the iura or sovereign rights the law
guaranteed the inviolability of the person of the Sover-
eign Pontiff, also his right, active and passive, of
embassy with all the privileges (extraterritoriality and im-
munity) attached thereto; also, if he pleases, to have his
own post office and telegraph service or to entrust it to
the Italian government, free of charge. This is the
condition of the papacy at present, at least on paper.
Remonstrances, of course, were not wanting, and the
present canon, although modified, is a reminder to the
royal and parliamentary offenders. We shall not at-
tempt to enter into an interpretation of this canon,
as it deals with a delicate subject, which the Roman
Court alone can handle adequately. Only one obser-
vation : the term bona et iura Rotnanac Ecclcsiac may
have a wider sense, inasmuch as all property and all
rights, wherever found, may be concerned, provided
they are held in the name of the Roman Church, as
a legal corporation.2
1 I I, 12. Invadentes, destruentes, iurisdictionem in eis nee not* ad
Per sc vet per alios civitates, terras, singula praedicta auxilium, con-
loca out iura ad Ecelttiatn Ro- ffttf— B, favorem praebentrs.
manam pcrtinentia; vel usurpantes, 2 Art. 6; sec Prior, Is the Pope
perturbantes, retinentes tupremam Independent? or Outlines ef the
jle
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
386 PENALTIES
Those who usurp or detain, personally or through
others, property or rights belonging to the Roman Church,*
incur excommunication latae sentential reserved modo
specials to the Apostolic See. If the guilty ones are clcr-
ics they must be deprived of tlieir dignities, benefices,
offices, and pensions, and be declared incapable of holding
such. This clerical penalty is ferendae sententiae.
The question has been asked: Does the present King
of Italy fall under the excommunication formulated in
this canon? He is not a usurper, but merely one
who detains or holds or occupies property that was
usurped by another, and in this sense authors maintain
that "to retain" means the same as "not to restore,"*
But is there a moral imputability ? We hardly believe
so ; for the King alone could not restore the Papal
States.5 Deputies and senators are not responsible as
individuals.*
.
USURPATION AND SECULARIZATION OF CHURCH PROIERTY
|M
Can. 2346
Si quis bona ecclesiastica cuiuslibet generis, sive
mobilia sive immobilia, sive corporalia sive incorpor-
alia, per se vel per alios in proprios usus convertere
et usurpare praesumpserit aut impedire ne eorundem
fructus seu reditus ab iis, ad quos hire pertinent,
percipiantur, excommunicationi tandiu subiaceat,
quandiu bona ipsa integre restituerit, praedictum im-
Roman Question, 1907, p. 127 f. from the Catholic Church at large.
B But it would be improper to * Thug DVAnnibale. p. 67, n. 100,
identify this property with the Ro- note 6.
man See (Ayrinhac, p. J75) ; °ur • Thus also Eichnuuin, I. c, p.
text means only the Roman Church, I7*>-
understood as a political and 8 DVAnnibale, /. c.
ecclesiastical corporation, distinct
jle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2346 387
pedimentum rcmovcrit, ac deinde a Sede Apostolica
absolutionem impctraverit ; quod si eiusdem ecclesiac
seu bonorum patronus fuerit, ctiam iure patronatus co
ipso privatus exsistat; clericus vcro, hoc delictum
committens vel in eodcm consentiens, privetur prae-
terca benefices quibuslibet, ad alia quaelibet inhabilis
efficiatur et a suorum ordinum exsecutione, etiam post
integram satisfactionem ct absolutionem, sui Ordinarii
arbitrio suspendatur.
This canon aims at protecting the right claimed in can.
1495. It is not necessary to repeat what we said there.
The spoliation of Church property forms an old and oft-
recurring chapter in the annals of secular and ecclesias-
tical history from the time of the Merovingians to the
wholesale secularization of churches and monasteries to-
wards the end of the eighteenth and the beginning of the
nineteenth century. The cupidity of men is insatiable,
but its exercise against the Church has ever been followed
by visible, though perhaps slow, punishment, inflicted
either on individuals or on whole nations. The law in-
flicts a severe punishment ( 1 ° ) on those who, either per-
sonally or through others, dare to appropriate to their own
use and usurp ecclesiastical property of whatever kind, be
it movable or immovable, corporeal or incorporeal and
(20) upon those who dare to prevent either individual or
corporate ecclesiastical persons from receiving the fruits
or income due to them.
1. The first class is that of convertentes and usur pontes.
The text is essentially a repetition of the Tridentine1
■"■
1 Trid., Sess. 22, c. If! " Si quern necessitates convert* debent, per 4C
clericorunt vet laicorum . . . bona, vel alios, vi vel timore incusso, seu
-
census ac iura . . . fructus, emolu- etiam per suppositas pcrsonas
menta, sen quascumque obventiones, clericorum aut laicorum, seu qua-
quae in minlstrorum et pauperum cumquc arit aut quocumqut quaesito
jle
Original fro m
UNIVERSITY OF WISCONSIN
388 PENALTIES
anathema against the unrightful holders of ecclesiastical
property. We should expect that usurpation would be
mentioned first and then appropriation; for usurpare
means to occupy something as owner after having taken
it away from the real proprietor. But the Council re-
verses the order, thus intimating that convertere and
usurpare constitute one juridical act or criminal deed.
This, indeed, appears to be the meaning of the Tridentine
text, which emphasizes the alienation of ecclesiastical
property from its real purpose. This may be embezzle-
ment proper, or secularization, i. e., turning ecclesi-
astical property to profane or worldly uses. Embessle-
fn€t\t is committed by a servant or employee. Hence it
is clearly stated that only clerics may be guilt)' of this
crime. Secularisation is proper to lay persons, especially
the powerful and influential, who appropriate church
goods to their own use.2
Whether this act of unlawful appropriation be com-
mitted by the usurpers themselves or through others, is
immaterial. Therefore the mandantes are here con-
cerned, who act through others.8 Per alios may have
another meaning. Take this case, for instance : A buys
from B a piece of church property, which B had
purchased at an auction from the government that had
robbed a religious community, but turned the mis-
appropriated property to public, not private, uses. Has
A incurred the censure? Yes, answered the Holy
Office.4 Since these cases arc not rare, it may be of
colore in propria* usus convertere, 654; Hollweck, J. c, p. 238 takes
iilojque ujurparc praesutnpscrit, i*u usurpantes and convertentex as
impedire, nc ab its ad quos iure distinct terms.
pertinent, percipiantur, is anatht- a But not the consnlenles.
mati tamdiu subjaceat. ..." 4 S. O., July 8, 1874 (Coll. P. F.,
2 See D'Annibale, /. c„ p. 60, n. n. 142°)-
91; Callemari, Ceuc. Trid., 1780, II,
>Ic
f^" -» v ,|Y. Original from
UNIVERSITY OF WISCONSIN
a
N
■
CANON 2346 389
interest to state the practice of the S. Poenitentiaria.5
Its decisions turn about municipal authorities, mayors,
and aldermen and naturally concern a country where
wholesale spoliation of religious communities had taken
place. The substance of these decisions is:
a) As long as these authorities do not appropriate
such property to their own uses, they do not incur the
censure, no matter how they may have cooperated in
the unjust spoliation. Neither do those incur the cen-
sure who freely receive such property through the
" liquidateur. "
b) Such authorities, mayor, aldermen, etc., are bound
to make restitution singillatm, •*. e., each one for himself;
as to the liquidators, it is not quite certain whether they
are obliged to restitution.
c) Those who buy confiscated property and turn it to
their own use, incur the censure;
d) With the exception of the last-named class (c) the
confessor should not regard the aforesaid persons as
public sinners;
e) Concerning the ecclesiastical burial of such persons,
the local Ordinary must judge in each individual case.
f) The buyers (emptorcs) of church property
illegitimately confiscated are bound to make restitution,
but may easily obtain a " composition " or agreement
with the Ordinary or Apostolic Delegate, who receive
special faculties to this effect from the S. Poenitentia-
ria.
A kind of embezzlement no doubt forbidden under cen-
sure is keeping back, or occupying and retaining, money
8 Jan. 3, tck>6: March 8, 1906; Apostolic Delegates enjoy the facul-
May 9, 1906; June 7, 1906; Sept. ties to absolve in such cases (Index
17, 1906 (Anal. Ecct., XV, 12S IT.) Facult., n. 9).
ogle
f~* ^ .. ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
39Q CANON 2346
and property belonging to the Holy Land, provided, of
course, it is turned to one's own use.0
Clerics of every rank incur the censure if they mis-
appropriate money or property destined for the main-
tenance of divine worship or the support of ministers.7
Bona ecclcsiastica are defined in can. 1497 as such as
pertain either to the universal Church, or to the Apostolic
See, or to another artificial person, i. e., ecclesiastical
corporation, or which are under ecclesiastical owner-
ship and control. This property may be movable
(precious and sacred things), or immovable (such as
lands). It may be corporeal or incorporeal. The
former term comprises all goods which can be seen and
handled, whilst incorporeal property is that which
cannot be seen as such, for instance, leases, patent
rights, literary or copyrights, incorporeal hereditaments.8
An incorporeal property would also be the secret
of manufacturing a certain trade article. All these
properties, provided they belong to an ecclesiastical
corporation or entity, are here included. It is not quite
correct" to say that loca pia do not fall under this
category. For such institutions (hospitals, orphanages,
homes for the aged, the poor, etc.), if erected by the
local Ordinary as a juridical person,10 are ecclesiastical
entities and the present canon applies to them.
2. The next class of fraudulent detainers of church
property are the impedientes (see can. 2333), vis.:
OS. O., June 2S, 1S76 (Co//. P. II, 368; but ma; be punished ic-
P., n. 1457.) cording to can. 2335,
7 Wcrnz, /. c, VI, n. 336. P- 333- 8 Blackstone-Coolcy, /. c, II, 16;
The amount requited to incur the bonds and stocks rather belong to
censure would certainly have to be corporal property,
considerable. $100 or $aoo; see Holl- » Thus Hilarius a Sexten, /. e.t
week, p. 156, note 18. Thieves and p. 142.
robbers do not incur the censure 10 Can. 1487, | x.
under this heading ; Pcnnoccht, /. e.,
"-.
►ogle
( * ^ .. ils* Original from
UNIVERSITY OF WISCONSIN
CANON 2346 391
those who authoritatively and effectively prevent others
from coming into their own. When we say " authori-
tatively " we do not, however, mean to imply that only
public authority in the strict sense is to be understood.
Our church trustees, e. g., are not public authorities in the
strict sense, but only representatives of private cor-
porations, 3ret they exercise a certain authority and may,
therefore, really "impede." The preventing may be
done by threats, violence, sequestration, suspension of
pavment, lawsuits,11 etc.
Fructtis sett rcditus are natural products, such as the
tithes from animals, land, trees, etc., formerly paid to
the clergy or the Church. Reditus refers particularly to
revenues or salaries, such as the income from a benefice.
Not comprised under this name or canon are the stole
fees and the so-called incerti, t. e., fees for dispenr
sations, expediting documents, etc.12 For these are
especially mentioned under can. 2349.
But these fruits and revenues must belong iure to
ecclesiastical persons. The legal title to them is
established by the fact that one is a duly appointed
minister of an ecclesiastical corporation and has not
forfeited his right by illegal acts punishable in law by
temporary or perpetual suspension or privation of one's
benefice.
3. The penalty is
a) Excommunication latae scntentiae, reserved to the
Apostolic See until full restitution has been tnade, the
impediment removed, and absolution imparted.
Since, as stated above, compensation or agreement is
easily admitted, it is evident that such an act would
11 Hollweck. /. c, p. 237. nolo la Can. 463, 5 1; can. 1507.
16. To this class belong also ad-
vowson and governmental retention
of salaries.
.'Ie
Original fro ni
UNIVERSITY OF WISCONSIN
-'
392 PENALTIES
entitle one to absolution, provided the confessor has the
necessary faculties.
b) The patron of a church or property who is guilty
of acts forbidden by this canon, is, besides, ipso facto
deprived of the ius patronatus, and his church or bene-
fice becomes one of free appointment.
c) A cleric who has committed the crime Itere men-
tioned or 1S (by effective confiscation or detention) has
consented to the same, must be deprived of all his bene-
fices and declared incapable of obtaining any benefice
in future. Besides, he must be suspended from the ex-
ercise of his orders for a period to be determined by his
Ordinary, even after he has given full satisfaction and
obtained absolution. All these clerical penalties, with
the exception of excommunication, are now ferettda-o
sententiae, and therefore require the usual admonition
and sentence.
" Ausus fuerit" (can. 2229, § 2) implies knowledge
that the property was an ecclesiastical one, and also free-
will. Therefore, can. 2229, §2 must be consulted.
ILLEGAL ALIENATION
a
Can. 2347
7.
n
Firma nullitate actus et obligations etiam per cen-
suram urgenda, restituendi bona illegitime acquisita
ac reparandi damna forte illata, qui bona ccclcsiastica
alienare praesumpserit aut in iis alienandis consensum
praebere contra praescripta can. 534, § i, et can. 1532:
i°. Si agatur de re cuius pretium non execdit mille
IS The cleric, in virtue of bis ficient to render him immune from
office, is obliged to protect the penalty; Hollvreck, /. e.t p. 230,
church property entrusted to him; note 23,
a
a protest from him would be auf-
oogle
k ,1,, Original from
UNIVERSITY OF WISCONSIN
ll
CANON 2347 393
libellas, congruis poenis a legitimo Superiore ecclesi-
astico puniatur;
20. Si agatur de re cuius pretium sit supra mille,
sed infra triginta millia libellarum, privetur patronus
iure patronatus ; administrator, muncr e administra-
toris*; Superior vel oeconomus religiosus, proprio
officio et habilitate ad cetera officia, praeter alias con-
gruas poenas a Superioribus infligendas ; Ordinarius
vero aliique clerici, officium, beneficium, dignitatem,
munus in Ecclesia obtinentes, solvant duplum favore
ecclesiae vel piae causae laesae; ceteri clerici suspen-
dantur ad tempus ab Ordinario definiendum;
3°. Quod si beneplacitura apostolicum, in memoratis
canonibus praescriptum, fuerit scienter praetermissum,
omnes quovis modo reos sive dando sive recipiendo
sive consensum praebendo, manet praeterea excom-
municatio latae sententiae nemini reservata.
Alienation has been explained elsewhere.1 Here the
penalties are set forth. Those who alienate church pro-
petty, or consent to such alienation, despite the law laid
down in can. 534, § 1 and can. 1532:
i°. Must be fittingly punished by the lawful ecclesi-
astical superior, if the value of the alienated property
does not exceed 1000 francs (lire) ;
2°. If the value exceeds 1000 francs, but does not
reach 30,000:
a) The patron must be deprived of the ius patronatus;
b) The adininistrator must be removed from his office;
c) The religious superior or oeconomus (procurator)
must be deprived of his office and declared incapable
of holding any other office, and may also be otherwise
punished by his superiors in proportion to his gaiilt ;
1 See can. 534, i53°-i533 (Vol. Ill and VI of this Commentary).
►ogle
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
394 PENALTIES
d) The Ordinary and other clerics who hold an office,
benefice, dignity, or charge in the Church, are bound to
pay the double amount to the church or charitable
institution which they injured by alienation;
e) Other clerics must be suspended for a period to be
fixed by the Ordinary.
3°. If, according to the aforesaid canons, the bene-
placitum apostolicum was required, but was knowingly
neglected, all those guilty of the crime, those who gave
and those who received as well as those who merely gave
their consent (i£ this was needed), incur the excom-
municatio laiae sententiae reserved to no one.
Our canon states that no obligation arises from an
illegal alienation because the act is null and void in the
internal as well as the external forum. Furthermore,
those who acquire church property by illegal aliena-
tion, are bound to make restitution and repair the
damage sustained by the ecclesiastical owner of the
property.
But what about Ordinaries and clergymen (2, d)
who have to pay the duplum? There is no doubt that
duplum is here to be taken in comparison with the sum
illegally alienated. Therefore, if 20,000 francs were
illegally alienated, the Ordinaries guilty of the crime
would have to repay 40,000 francs, and if the damage
suffered by illegal alienation would not be covered by
this latter sum, they would have to pay more.
But who shall enforce these penal laws, since, with the
exception of the censure, they are all ferendae sententiae?
The immediate superior, and therefore the Apostolic See
with regard to autonomous prelates, and the local
Ordinary with regard to the inferior clergy.
Attention must be drawn to the terms praesumpserit
and scienter praetermissum (consult can. 2229, § 2).
oogle
Y .j,. Original from
UNIVERSITY OF WISCONSIN
■
CANON 2348 395
Fear of loss, or deterioration, or real need, or any
kind of ignorance would excuse one from the penalties
above mentioned.
NEGLECT TO EXECUTE PIOUS BEQUESTS
Caa 2348
Qui legatum vel donationem ad causas pias sive actu
inter vivos sive testamento, etiam per fiduciam,
obtinuerit et implere negligat, ab Ordinario, etiam per
ccnsuram, ad id cogatur.
The Church always insisted upon the strict fulfillment
of last wills (can. 1493, 15 15) and considered it criminal
to delay their execution. Those who retained pious
offerings or bequests were cast out of the Church as
infidels and called " killers of the poor " (necatores
pauperum).1 Our canon rehearses, though in a milder
form, the ancient legislation by providing that those
who have received a legacy or donation for a pious cause,
or a fiduciary bequest, be it inter vivos or by last will, and
neglect to fulfill or execute it, should be compelled to do
so, if necessary, even by censures. One penalty men-
tioned in the Decretals is privation of the executorship
and loss of every interest and commission accruing from
such an office. But a canonical warning must precede.
Another penalty is the use of censures, which also re-
quires a canonical admonition.2 The time within which
the bequest must be executed or liquidated, is one year
from the date of the last will or testament becoming
known, or, as we would say, probated. This law con-
cerns, as the sources clearly state, the secular as well as the
1 C. 9, xx, C. 13, q. a. 2 Cc. 3, 6, 17, X, III, 26.
*j by Google
J ^ Original from
UNIVERSITY OF WISCONSIN
-
396 PENALTIES
regular clergy.8 Of course, as far as formalities are
concerned, the civil law must be obeyed. But if that
law would confiscate or forbid bequests for church
purposes, the heirs would nevertheless be bound in con-
science to do what they could to comply with the will of
the testator.
REFUSAL TO PAY STOLE FEES AND TAXES
Can. 2349
Recusantes praestationes legitime debitas ad nor-
ma™ can. 463, § 1, 1507, prudenti arbitrio Ordinarii
puniantur, donee satisfecerint.
Whilst it would be simony to demand a temporal re-
muneration for the administration of the Sacraments,
as such, yet the legitimacy of stole fees for the support
of the ministers has always been upheld by the Church,
and the custom of paying such fees hae been called
praiseworthy.1 Can. 2349 says these stole fees (for
baptisms, marriages, funerals) and the taxes due accord-
ing to law for civil or voluntary jurisdiction and execu-
tion of Apostolic rescripts must be paid by the faithful.
Those who refuse to pay may be punished by the local
Ordinary until they comply with their obligation. Of
course, to those unable to pay, the sacred ministry must
be rendered free of charge (can. 463, § 4).
in
5 Thesaurus-Giialdi, P. II, s. v. tendencies, most probably the Petro-
" Testament*," ed. cit., p. 423 f.). bruaians and followers of Arnold
1 See c. 42, X, V, 3. Some re- of Brescia,
fused to pay on account of heretical
■
oogle
k ,1,., Original from
UNIVERSITY OF WISCONSIN
TITLE XIV
CRIMES AGAINST LIFE, LIBERTY, PROPERTY,
GOOD NAME
ABORTION AND SUICIDE
Can. 2350
§ i. Procuxantes abortum, matre non excepta, incur-
runt, cffectu secuto, in excommunicationem latae sen-
tentiae Ordinario reservatam; et si sint clerici, prae-
tcrca deponantur.
§ 2. Qui in seipsos manus intulerint. si quidem mors
secuta sit, sepultura ecclesiastica priventur ad normam
can. 1240, § 1, a 3; secus, arccantur ab actibus
legitimis ccclcsiasticis et, si sint clerici, suspendantur
ad tempus ab Ordinario definiendum, et a beneficiis
aut officiis curam animarum interni vel externi fori
adnexam habentibus removeantun
This canon comprises two criminal acts, both related
to homicide, viz.; abortion and suicide.
I. Abortion was widespread among the Greeks and
Romans of pagan antiquity. The Christian Church
treated it severely.1 The Roman Law condemned persons
of the lower ranks of society who committed abortion to
the metalla, i. c, the fiscal mines, and those of higher rank
to exile.2 The ecclesiastical law up to the sixteenth
t See Eschbach, Disquisitionts which is identical with abortion in
Physiologico'Theologicae, 1901. P- the popular sense. ,
377 s- The synods of Elvira, 2 L. 8, Dig. 48, 8; I. 38. 9 5.
Ancyra, etc., mention infanticide, Dig. 48, 19: "Qui abortionu aut
397
oogle
k %\s* Original from
UNIVERSITY OF WISCONSIN
398 PENALTIES
century classified abortion with homicide.8 A decisive
step in the penal legislation concerning this offense was
taken by Sixtus V, in his Constitution " Effraenatum,"
Oct. 29, 1588, which was modified considerably by
Gregory XIV in his Constitution, " Sedes Apostolical
May 31, 1691. Sixtus V had inflicted the excommuni-
cation reserved to the Apostolic See, made no distinction
between foetus animatus and inanimatus, for mis or
infortnis, and included all accomplices. Gregory XIV
reserved the excommunication to the bishop, and re-
stricted the crime to foetus animatus. This was the law
of the Church until 1869, when the ''Apostolkae
Sedis"4 was issued by Pius IX, which made no distinc-
tion between foetus animatus and inanimatus, whilst, on
the other hand, it condemned only the procurantes and
reserved the censure to the Ordinary.
But the question, whether the mother was included
was left undecided and opinions continued divided on
this point. Our text settles this question by saying:
Those who procure abortion, — the motfier not excepted,
— after the effect has followed, incur the excommunica-
tion latae sententiae, reserved to the Ordinary; clerics
must, besides, be deposed. This text is identical with
that of the " Apostolkae Sedis " except as to the clause :
" tnatre non execpta," and in that it makes the penalty for
clerics ferendae sententiae.
1. Now, what is abortion? Authors differ in defining
this crime. We accept the following definition: Abor-
tion is the expulsion of a human fetus from the womb
amatorium pocutum dant, etsi dolo ' is expressly mentioned in 1. 8, I. e.
non faeiant. tatnrn qui mali exempli IC. so. C. 2, q. 5; C. 8, C. 32, Q.
iw est, humiliores in metaJlum, 2; cc 5. 2°, X, V, is.
h'fnrstforcs in insntam amissa parte 4 | III, 1.. a; "Procurantes ab~
bono/:. : reiegentur." The woman ortum, effect* srquuto."
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2350 399
a
Q
before it is capable of living separately ,B This supposes
the existence of a human fetus, from the time it can
really be called a fetus, to about the seventh month of
pregnancy. For after the seventh and up to the ninth
month the act of bringing forth a fetus is styled prema-
ture birth, not abortion proper, because the fetus at that
stage has viability, even though it be precarious. But fetus
may also mean the embryonic stage of development from
the time of conception to about the sixth week of
pregnancy.0
The distinction between foetus animal us and inanimatus
had been given up since the " Apostolicac Sedis" with
regard to censure, but not as to vindictive penalties, and
especially irregularity. Yet even now it is safely held
and taught that ejection of the semen immediately
after the copula does not fall under censure, because
conception is not as yet certain. Neither would the
ejection of so-called molae (false conceptions) be subject
to censure, even though these were ejected with the in-
tention of procuring abortion. As a general rule it may
be stated that any act committed within twenty-four
hours of conception is not to be construed as abortion,
even though done with that intention.1
Abortion is called accidental when it is brought about
involuntarily, in consequence of a fall, overexertion, or
natural dislocation. It is criminal when induced volun-
c
tarily for selfish reasons and by forbidden means. It
is artificial when induced for medical-therapeutic reasons.
But the latter species may be criminal according to sound
6 See Encyclopedia Americana, Hoi) week. /. e., p. 252, note 8.
19*0, I, 45; also Eschbach, /. c, Tlic consequence is that syringing;
p. 274; Peonacchi, II, 34- after the copula, though perhaps
6 See Vol. IV of this Commen- done with criminal intent, does not
tary, p. 50 f. fall under censure.
7 Hilarius a Sexten, /. C, p. 218;
jle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
4oo PENALTIES
moral principles,8 and hence the above division is not
fully adequate.
2. The different kinds of abortion must be judged by
the act that produces abortion. This is called procuratio
and its agents procuranies. To procure an abortion
means to bring it about purposely and intentionally.9
This may be done in a twofold way: (a) by seeking
abortion directly and for its own sake, in which case it
is purely and simply criminal, or (b) as a means to a
higher end, for instance, to preserve the life of the
mother. In both cases abortion is sought and intended
directly as a means to an end.
Mandantes are those who order an abortion to be com-
o
mitted and in whose name it is perpetrated, for instance,
the mother who commands the physician to perform an
operation the direct efFect of which is abortion; or the
father or seducer, provided, of course, the woman con-
sents ; for it is she who has to give the final permission
— always provided she is in a physically and mentally
normal condition. The mandantes are without doubt
to be reckoned among the procurantes.10
Whether the mandataritts, i. e., he who executes the
order or command, must be classed with the procurantes,
is a controverted question. The executor of the will or
command of another does not act in his own name, al-
though, as one commentator most justly observes in our
case, he truly and properly procures abortion.11 We say
& Encyclopedia Americana, I. c; nacchi, II, 34; D'Annibale, /. c,
Eschbach, /. c, p. 374 ff. distin- n. 159.
guishea an involuntary or casual and 10 Pennacchi, /. c, II, 36; D'Anni-
■ voluntary abortion; this from a bale, f. ft, p. 103, n. 161; H oil wed,
tbcological viewpoint. Mollwcck, /. /. c, note 6. — Misleading is the
c, says: directly philosophical and superficial statement: " Some deny
only indirectly physiological. it" (Ayrinhac, /. c, p. a88).
9 Procurare est studiose et ex u La Nouvelle Revue TkSoh-
industria aliquid quaerere; Pen-
Q
■-
oogle
k ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
'-■-,
CANON 2350 401
the question is controverted, because such well-known
commentators on the " Apostolicae Sedis " as Pennacchi 12
and D'Annibale 13 deny that the mandataritis incurs the
censure. Therefore the benefit of a real doubt may
safely be granted to such, thereby exempting them from
the censure.
Those who advise or favor abortion, and druggists
or physicians who prepare drugs conducive to abor-
tion, do not incur excommunication. The same 13 true
of those who beat a pregnant woman for any other
motive except that of procuring abortion.14
3. Effecto secuto means that the attempt must be ef-
fective. Whether the effect (abortion) is procured by
means of drugs or instruments, or by burdens imposed on
the pregnant woman does not matter.15 A moral cause,
for instance, voluntary fright or fear intentionally brought
to bear upon a woman, may produce an abortion. But
there must always be a causal connection between the
means used and the effect intended. Hence if an abor-
tion were produced by a fall, or a scare, or by sickness,
even though the woman had taken a drug to insure it,
the censure would not be incurred. If it is doubtful
what caused abortion, the fall, etc., or the drug, some
authors deny 10 that the censure is incurred, while
others :7 assert that it is.
These few comments may suffice to disperse at least
some doubts. The principal fact to be kept in mind is
that the mother is no longer exempt from incurring the
gique, Vol. XI, n. 350, quoted by D'Annibale, /. c, p. 10a, n. 159.
Peunacchi, II, $6. 10 D'Anuibalc, J. c, p. ioi, n.
is /-. c. 160; Hilarius a Sexten, /. c, p. 220.
\%L. c; see also Hilariui a Sex* 17 Lehmlcuhl, /. c, II, n. 970.
ten, /. c, p. 210 f. The state of doubt permits can. 209
14 Pennacchi, /. c, p. 35. to be applied.
IB Sixtus V, "Effrocnatum," | a;
►ogle
£ ' ^ ^ -J,-. Original fro m
UNIVERSITY OF WISCONSIN
402 PENALTIES
censure. She may, however, be immune from censure,
if can. 2205, § 2 is verified. For grave fear would
render her immune from censure, inasmuch as a cen-
sure is a purely ecclesiastical penalty.
Now a brief remark concerning artificial abortion.
It has become almost a dogma among authors 18 that
craniotomy and embryotomy, though grievously un-
lawful and forbidden, do not fall under the censure of
can. 2350. Craniotomy consists in crushing the fetus
and taking it out piecemeal. Another kind of artificial
abortion is called medical and consists in the expulsion
of an immature fetus on account of a too narrow pelvis.
All authors hold as theologically certain that it is never
allowed to procure or intend an abortion as such (uti finis)
or as means to an end, for instance, to preserve the life
of the mother, if the means cause abortion directly (per
se) and cannot preserve the life of the mother except
by causing abortion.11* Two, or rather three, decisions of
the Holy Office confirm this view : " It cannot be safely
taught in Catholic schools, " says one of them, u that any
kind of surgical operation is allowed which will directly
kill the fetus ; even if acceleration of birth is not possible
on account of the narrowness of the female organs, it is
never allowed to cause or provoke an abortion." 20 But
where is the censure? We answer: If the physician
performs the operation of his own accord, without being
commanded or asked by those concerned, he certainly
incurs excommunication.21 But if he merely acts as
mandatarius, he does not incur the censure.
lBHilariuB a Scxten, I. c, p. ai8 so S. O., May aS, 1884; July 24,
calls it fere communis thtologorun i8gs; May 4, 1898 {Colt. P. F., nn.
sentcntia, 1618, 1906, 1997)-
IB Etchbach, I. e., p. 390 ff.; Cop- 21 Thu* also Eiclimaen, t c, p.
pens. Moral Principles and Medical 176.
Practice, 1897, p. 65 ff.
§le
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2351 403
II. Suicide. Those who deliberately commit suicide,
are to be deprived of ecclesiastical burial, according to
can. 1240, § 1, n. 3, where the necessary remarks have
been made on funerals. Those who command the eccles-
iastical burial of a suicide do not incur excommunication,
because they are not mentioned in can. 2339. If there is
doubt whether a suicide was accidental or deliberate, the
former is to be presumed. But if there is doubt whether
the suicide was committed with deliberation or in the state
of mental aberration, malice or intentional suicide should
be presumed, according to can. 2200, § 2. However, the
statement of a physician or of relatives as to the physical
condition of the deceased may safely be accepted. 22
If one who attempts to commit suicide survives, he
must be denied all legal ecclesiastical acts (can. 2256, n.
2). Clerks guilty of such an attempt must be suspended
for a period to be fixed by the Ordinary, and, besides,
must be removed from any benefice or oiHce connected
with the care of souls, both in the internal and external
forum. Therefore such clerics, after a declaratory sen-
tence issued by the Ordinary, can no longer function
as chaplains, confessors, assistants or curates, pastors or
Ordinaries.
DUELLING
3
Can. 2351
§ 1. Servato praescripto can. 1240, § if n. 4, duellum
perpetrantes aut simpliciter ad illud provocantes vel
ipsum acceptantes vel quamlibet operam aut favorem
a
c
a
22 See H oil week, /. c, p. 353, note signs of repentance before dying;
2; Eichmann, /. c, p. 177. The can. 1240, § 1.
same is true if the suicide save
jle
I , Original from
UNIVERSITY OF WISCONSIN
404 PENALTIES
praebentes, nee non de industria spectantes illudque
permittentes vel quantum in ipsis est non prohibentes,
cuiuscunque dignitatis sint, subsunt ipso facto ex-
communication! Sedi Apostolicae simpliciter rescr-
vatae.
§2. Ipsi vero duellantes et qui eorum patrini
vocantur, sunt praeterea ipso facto infames.
A duel is a combat with deadly weapons, without or
with fatal result, between two persons who have de-
liberately agreed on die conditions of the fight.1 A duel
is private if it takes place by private agreement between
the parties and their friends : public, if sanctioned by the
lawful authority for a public purpose. The purpose may
render it lawful or unlawful. If the purpose is a good
one, as the prevention of an impending war, for instance,
the duel could not be styled unlawful. If held only to
satisfy public curiosity, however, like the gladiatorial
combats of the Romans, it is wrong and forbidden.
Here we are concerned with private duels* Our text,
in terms almost identical with that of u Apostolicae Sedis,"
subjects to ipso facto excommunication, simply reserved
to the Apostolic See, the following persons :
I. Tfwse who participate in a duel, i. e., a single combat
fought according to rules laid down by private agreement
as to time, place, and weapons, no matter whether the
intended result is fatal or not. Therefore, the so-called
Mensurcn of students and officers are included.8
l'liii, Ethics, ed. 8, p. 310 — ex- out simpliciter ad illud frovocantes,
cept the clause, "with or without vel ipsum accep'.antts, et quoslibet
fatal result," which bad to be added complices, vel qualemcumque operant
on account of the so-called Afrit- cut favorem praebentes, nee non de
suren. industria spectantes, illudque permit-
* Public duels are no longer in tentes, vel quantum in Wis est, non
vogue. prohibentes, cuiuscumque dignitatis
3 l 111, 3. DuelUm ^erpctrantes tint, ettam regalts vei imperialis.
§le
f^ ^ s ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2351 405
2. Those zolio challenge others to a duel, as just de-
scribed, no matter whether the duel takes place or not or
whether the challenge was accepted or not, provided only
it was meant seriously.4
3. Those who accept a challenge thus issued.
4. Those ivho offer any assistance or favor to duellists,
for instance, by acting as seconds, witnesses, physicians,5
and those who rent a place, or carriage, or automobile
for that purpose.
5. Those who purposely witness a duel as spectators.
The penalty is not incurred if they merely pass by, or
watch the duel from a nearby place, provided they are
not hired for that purpose. *
6. Those who, no matter of what dignity they be,
permit or fail to prevent a duel as far as lies within
their power. To this class belong the rulers of peoples,
if they can impede duels ; the magistrates as individuals,
under the same condition ; and, we believe, also police-
men, if the law prohibits duelling; nay, even private
citizens, if they can interfere without serious inconven-
ience; the latter, however, may easily be excused on
account of the odium they might expose themselves to.
Note that the provocantes and acceptanles incur ex-
communication even though the duel does not take place ;
whilst the others named in numbers 4 to 6 incur it only
if the duel really comes off. 7
The duellants and their seconds (duellantcs et patrini)
also incur the infamy of law, and hence contract
irregularity with regard to orders (can. 984, n. 5 ; 985, n.
4 S. C. C, Aug. 9. 1890 (Cotf. 0 lb., ad 2 et 3- No confessor is
P. F., n. 1739). allowed to be purposely present; ib.
s If the physician is present by ~ D'Annibalc, /. c, p. 77; n. 115:
chance, he does not incur the Pennacchi, /. c.t I, 549 f.; Hollweck,
censure, but if he is hired for the /. e., p. 354 f.
purpose, he does; S. 0., May 28,
1884 {Coll. cit., n. 1617, ad 1).
jte
(~* ^ -. iL» Original from
UNIVERSITY OF WISCONSIN
406 PENALTIES
5). "Mensuren" are not excepted from this rule.8
Lastly, ecclesiastical burial must be denied to those
who die in a duel or from a wound received in a single
combat, unless they give signs of repentance before they
die (can. 1240, § 1). But those who command or ex-
tort ecclesiastical burial for duelists do not incur ex-
communication ; but those who would grant such a re-
quest freely and of their own accord, would incur the
interdict, as per can. 2339.
COMPULSION IN REGARD TO THE CLERICAL OR
•a
RELIGIOUS VOCATION
N
■
Can. 2352
Excommunicatione nemini reservata ipso facto
plectuntur omnes, qualibet etiam dignitate fulgentes,
qui quoquo modo cogant sive virum ad statum
clericalem amplectendum, sive virum aut mulierem ad
religionem ingrediendam vel ad ernittendam reli-
giosam professionem tarn sollemnem quam simplicem,
tarn perpetuam quam temporariam.
Excommunication reserved to no one is ipso facto
incurred by:
1. All, no matter what their dignity, who in any way
compel a man to embrace the clerical state;
2. All who in any ?vay compel a man or a woman to
enter the religious state or to make religious profession,
be it solemn or simple, perpetual or temporary.
This law, substantially taken from the Council of
Trent,1 guarantees the freedom of clerical and religious
vocation,
sS. C C, Aug. 9, 1890 (/. c, 1 Sess. as. c. 18; see Bcncd.
n. 1739)' XIV, "Si datam," March 4, 1745.
Gi Original from
OOglt UNIVERSITY QFWI5C0NSIN
CANON 2353 407
1. The persons here intended are all Catholics of the
male or female sex, parents or strangers, of the highest
and lowest civil or ecclesiastical dignity 2 or condition:
parents, relatives, pastors, confessors, teachers, chap-
lains,0 superiors, superioresses, etc., etc.
2. Cogentes quoquo modo means to compel or force
one in any way, directly or indirectly, by threats, rev-
erential fear, compulsion, persuasion, promises, etc.,
whether these means be used directly or through inter-
mediary persons.*
3. The purpose must be to compel the other to choose
a state for which he or she has or feels no vocation,
a) The clerical state begins with the first tonsure (can.
108, § 1), and hence the excommunication is incurred
when that order is received.
b) The religious state is entered at the beginning of
the novitiate, not postulancy, because this latter is not
required for clerical organizations, and, besides, only
novices enjoy the privileges of religious. To compel
any one to make profession of any kind here mentioned,
renders one liable to the penalty.
ABDUCTION OF WOMEN
Can. 2353
s •
Qui intuitu matrimonii vel explendae libidinis causa
rapuerit mulierem nolentem vi aut dolo, vel mulierem
2 Except Cardinals, on account of 4 If a girl is sent to a convent
can. 2227, 5 a. to be educated, there is no harm in
8 If a chaplain of Sisters preaches that; but if the avowed purpose 11
to academy girls that the only salva- to make her a nun against her will,
tion for them is the convent, he la the excommunication ia incurred
certainly not far from incurring after she has entered.
the censure, and should be removed
at once.
oogle
Original from
UNIVERSITY OF WISCONSIN
4o8 PENALTIES
minoris aetatis consenticntem quidem, sed insciis vcl
contradicentibus parentibus aut tutoribus, ipso iure
exclusus habeatur ab actibus legitimis ecclesiasticis
ct insuper aliis pocnis pro gravitate culpac plectatur.
This and the next four canons deal with crimes mixti
fori, •. <?., such as fall also within the competency of the
lay court and are prosecuted by the same. Exception,
of course, should be made of clerics, on account of the
*privilcgium fori.
Any man who abducts a woman against her will,
by violence or deceit, cither with the intention of marry-
ing her or for the sake of gratifying his sensuality ; or
who abducts a girl not yet of age, even though she is
willing, without the knowledge and against the will
of her parents or guardians, is ipso iure excluded from
legal ecclesiastical acts (can. 2256, n. 2) and should be
punished in proportion to his guilt.
It is evident that this penal enactment, latae sententiae,
not only regards abduction (raptus) as an impediment,
but abduction in general, the condition being, however,
that the abductor be a man. The purpose of the law is
to protect the liberty and security of women.
p
MIXED CRIMES
Can. 2354
§ 1. Laicus qui fuerit legitime damnatus ob delictum
homicidii, raptus impuberum alterutrius sexus, vendi-
tionis hominis in servitutem vel alium malum nnern.
usurae, rapinae, furti qualificati vel non qualificati in
re valde notabili, incendii vel malitiosae ac valde nota-
bilis rerum destructionis, gravis mutilationis vcl vul-
jle
I , Original fro rn
UNIVERSITY OF WISCONSIN
CANON 2354 409
a
ncrationis vcl violentiae, ipso iure exclusus habeatur
ab actibus legitimis ecclesiasticis et a quolibet munere,
si quod in Ecclcsia habcat, firmo oncre reparandi
damna.
§ 2. Clericus vero qui aliquod delictum commiserit
de quibus in § 1, a tribunali ecclesiastico puniatur, pro
diversa reatus gravitate, poenitentiis, censuris, pri-
vatione officii ac beneficii, dignitatis, et si res ferat,
etiam depositione ; reus vero homicidii culpabilis de-
gradetur.
1. Laymen arc ipso iure excluded from, legal ecclesi-
astical acts and any charge they may hold in the Church,
save the obligation of indemnity, if :
a) They have been lawfully condemned for homicide;
b) Or for the abduction of impuberes of either sex;
c) Or for slavery proper or white slavery;
d) Or for usury, as far as punishable by civil law;
e) Or for rapine or violent theft;
f) Or for theft, either qualified (for instance, in
churches or public buildings: burglary) or unqualified
(fraudulent misappropriation against the will of the
owner) * in re valde notabili, that is, of a thing of con-
siderable value, either materially or by reason of art or
antiquity ;
g) Or for arson or malicious destruction of consid-
erable property, either out of a spirit of wanton cruelty
or wicked revenge;2
h) Or for serious mutilation, wounding, or battery.
2. If a clergyman has committed any of the afore-
mentioned crimes, he must be punished by the ecclesi-
astical court in proportion to the gravity of his guilt
1 Cfr. Kenny- Webb, I. c, p. 220. 2 lb., p. 163.
>gle
Original from
UNIVERSITY OF WISCONSIN
■
"■
410 PENALTIES
with penances, censures, privation of office and benefice,
and, in more serious cases, with deposition; if he is
guilty of culpable homicide, he must be degraded.
Note, however, that these penalties are to be meted out
only after the culprits have been condemned by a legiti-
mate court, after a trial conducted according to the laws
and customs of the country, and after the time for ap-
peal has elapsed.
PRIVATE VERBAL INJURIES
Can. 2355
Si quis non re, sed verbis vel scriptis vel alia quavis
ratione iniuriam cuiquam irrogaverit vel eius bonam
famam laeserit, non solum potest ad normam can. 1618,
1938 cogi ad debitam satisfactionem praestandam
damnaque rcparanda, sed praetcrea congruis poenis
ac poenitentiis puniri, non exclusa, si de clericis
agatur et casus ferat, suspensions aut remotione ab
officio et beneficio.
Can. 2344 punishes libelous and oral injuries directed
against higher dignitaries as public persons. Here these
injuries are punished if committed against laymen or
clerics by the persons just mentioned. But here a tort is
committed, rather than a crime, which in secular law
would be prosecuted in the civil, not in the criminal
court. Those who inflict (not real but) verbal injuries
by word or writing or in any other ivay, for instance,
by offensive gestures, on anyone, whether a cleric of
inferior rank or a layman, or who defame any of the
aforesaid persons, may be compelled to give satisfaction ■
l To these belong insulting pic- 2 Satisfaction is generally made
tures or caricatures. by offering an apology or inserting
oogte
Original from
UNIVERSITY OF WISCONSIN
CANON 2356 411
and to repair eventual damage, provided the offended
party insists upon such punishment, according to can.
1618 (a civil trial) or a denunciation to the fiscal pro-
motor has been made according to can. 1938 (a criminal
trial in the ecclesiastical sense).
Besides, other proportionate punishments and penances
may be meted out; and if the offenders are clerics, they
may, if necessary (for instance, if the scandal or damage
was of a very serious nature) also be suspended or re-
moved from office and benefice.
Thus a slanderous cleric, according to the IVth Synod
of Carthage, should be made to apologize, and if he
demurs, may be degraded.3 Laymen who slander a
priest, orally or in writing should be excommunicated.4
Laymen who commit the same offence against one of
their own class, should be scourged and compelled to do
public penance.8
The penalties are now fixed by the civil courts. Lay-
men who wish to bring suit against a cleric in such
cases need the permission of the local Ordinary.8 Pre-
scription for such offences runs one year (v. can. 1703,
n. 2).
BIGAMY
?
1-1
Can. 2356
Bigami, idest qui, obstante coniugali vinculo, aliud
matrimonium, etsi tantum civile, ut aiunt, attenta-
verint, sunt ipso facto infames; et si, spreta Ordinarii
monitione, in illicito contubcrnio persistant, pro
a
an article in a specified newspaper. 6C. 18. C. 5, q. 1.
aC. 2, Diat. 46. oSee can. 120; can. 2341.
4 C. 8, C. 5. Q. 6.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
412 PENALTIES
diversa rcatus gravitate excommunicentur vel
personali interdicto plectantur.
1. Bigamists, i e., persons who, though validly married,
attempt another (though perhaps only civil) marriage
are infamous by law, and if they spurn a warning given
by the Ordinary and continue their unlawful relation,
should be punished by excommunication or personal
interdict, according to the grievousness of tlieir guilt.
A bigamist, as here understood, is a man who has two
or more wives at the same time. Bigamy, therefore, is
identical with polygamy. It is punishable only when it
is subjective,1 i. e., when one knows that the former
marriage tie was and is still valid and not dissolved in
an ecclesiastically legal form. Unfortunately the State
sometimes grants a divorce for reasons nugatory in
the eyes of the Church, and without regard to her
laws.
2. Polygamy is punishable only if a second marriage
has been attempted. We say : attempted, not contracted,
because the object of the marital contract has not
only been promised, but delivered up to another party
still living. But there must be a semblance of a second
marriage, that is, the culprit must go through a legally
recognized marriage ceremony with another person to
incur the censure.2 It is hardly imaginable that a Cath-
olic minister would assist at a marriage without having
inquired into the free state of the parties. Therefore,
civil marriage is especially mentioned.
3. Equally punishable is the woman who, though free,
1 A man who marries linvalidly) therefore, could not be punished ax
a woman whilst his first wife ifl still a bigamist in the ecclesiastical
alive, but bona fide believed to be court.
dead, would not commit bigamy 2 Kenny-Webb, /. c, p. 286 ff.
•subjectively, but objectively; aud,
►ogle
/" * ^ ^ -J,-. Original from
UNIVERSITY OF WISCONSIN
CANON 2357
4i3
■
marries a bigamist, provided, of course, she knows of
the married state of her supposed husband. The in-
dividual contract and the attempt against the unity of
matrimony in this case require equal punishment.8
4. The penalty for bigamy is legal infamy with all its
consequences (can. 2294, § 1). Besides, says the text,
the seriousness of the guilt should be properly considered.
For the rank of the parties (can. 2207, n. 1 ) may set an
exceptionally bad example or cause great scandal.4 But
the severer penalties are to be inflicted only after
a warning, which should be a canonical one (can. 2309),
because the penalty to be inflicted (ferendae sententiae)
is the heaviest, namely, excommunication or the personal
interdict.
CRIMES OF LAYMEN AGAINST GOOD MORALS
Can. 2357
§ 1. Laid legitime damnati ob delicta contra sextum
cum minoribus infra aetatem sexdecim annorum com-
missa, vel ob stuprum, sodomiam, incestum, leno-
cinium, ipso facto infames sunt, praeter alias poenas
quas Ordinarius infligendas iudicaverit.
§ 2. Qui publicum adulterii delictum commiserint,
vel in concubinatu publice vivant, vel ob alia delicta
contra sextum decalogi praeceptum legitime fuerint
3 The secular law would have her
indicted for bigamy as a principal
in the second degree (ib., p. 201).
M It is no defence that the defendant
was a member of a religious sect
[Mormons of the original type are
here meant], which professed to
extol polygamy as a virtue, and that
he conscientiously believed he was
doing no wrong in contracting a
plural marriage" (ib., p. 392).
4 Former penalties were ex«
communication and public penance;
c. 19, C. 24, q. 3; cc. 8, 9, C. 32,
q. 7; Urban VIII. "Magnum in
Christo," June 20, 1637, 5 2, con-
demned bigamists to the galleys or
public whipping post and perpetual
prison.
Go >gle
Original fro rn
UNIVERSITY OF WISCONSIN
■
414 PENALTIES
damnati, excludantur ab actibus legitimis ecclcsi-
asticis, donee signa verae rcsipisccntiae dederint.
§ 1 declares laymen loyally infamous and otherwise
punishable by the Ordinary :
1. If they have been lawfully convicted of crimes
against the sixth commandment committed with minors,
i. e„ persons of either sex who have not yet completed
the sixteenth year of age; or
2. If they have been lawfully condemned for fornica-
tion, sodomy, incest, or panderage.
As to the requisites for incurring this penalty, it may
be observed that the act must amount to a copula per-
fecta; actus inconsummati would not constitute the
crime,1 wherefore tactus, oseula, amplexus arc not here
intended. Minors may be of either sex, whence a coitus
viri cum. viro would indeed be sodomy, but even more
punishable on account of the moral seduction and re-
sponsibility involved.2
Stuprum is here to be understood as violent forni-
cation, otherwise the text would have employed forni-
catio. Properly speaking it is the violent defloration of
a woman still a virgin.8 But common doctrine has ac-
cepted it as a violation of any woman, married or single,
whose character was not ruined by immoral conduct.
However, if we say violent, this term must be under-
stood also of deceit, fraud, threats, and fear.*
Sodomia is unnatural sexual gratification by an act
committed with a person of the same sex. It also in-
cludes bestiality. Not included under this penal law is
1 See Hollweck, /. c, p. 267. note 3 Civil law styles it seduction with
4. a widely different definition; Kenny-
tPius V, "Cum primum," April Webb. /. c, p. ^94 '•
i« 1566. fi "; >t need not be 4 Reiffenstuel, V, 16. n. 43 t
habitual.
jle
% ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2357 415
sodomia imperfecta or coitus viri cum femina, non ser-
vato vase naturali?
Incestus is sexual intercourse between persons related
within the degrees of consanguinity or affinity wherein
they may not lawfully marry. The former rt penalty of
illicit affinity and loss of marital rights (ius pctaxdi
debitum conjugal?) is now abolished. The fact of incest
or the intention or agreement to commit incest in order
more easily to obtain a dispensation need not be men-
tioned in the petition for the dispensation.7
Lenocinium is panderage for filthy lucre's sake, accord-
ing to the Roman Law, i. e., as a canon of the synod of
Elvira (313, n, 3) states, the sale of another person's
body for the purpose of unlawful gratification, no
matter whether the mother, or the father, or another
commits the crime.8 Hence keepers of houses of ill fame
fall under this heading and, therefore, incur infamy
(can. 2294, §1).
§ 2 considers the public crimes of adultery and public
concubinage, as also other crimes against the sixth com-
mandment, provided the perpetrators have been lawfully
convicted of such crimes or misdemeanors, or what-
ever else they be styled, in civil law. The latter has not
even a clear view of what constitutes adultery.0 Accord-
ing to ecclesiastical law, adultery is sexual intercourse of
a married person with another person than his or her
consort.10 It does not require the copula perfecta and
may be committed with a married or a single person.
On concubinage see can. 1078.
The penalty for these crimes is exclusion from legal
5 Schmalzffrueber, V, 16, n. 117- ■ Sec Kenny- Webb, /. c, p. 392 f.
oC. I, X, IV, 13. 10 "AJtlterium eil alicni thori
7S. O-, June 25, 1885 (CotL violatio"; Gratiani dictum, | 3 ad
P. F., n. 1635). c. 2, C. 36. q- 1.
8 L. 4? 5 a, Di«- 3. a; Hollweck.
/. c, p. 271. note 2.
% .J,., Original fronn
UNIVERSITY OF WISCONSIN
4i6 PENALTIES
ecclesiastical acts as long as no signs of repentance are
given.11 But the penalty is ferendae sententiae, condi-
tioned by a previous civil conviction.
i
CLERICAL OFFENDERS CONTRA SEXTUM
H
Can. 2358
-
Clerici in minoribus ordinibus constitute rei
alicuius delicti contra sextum dccalogi praeceptum,
pro gravitate culpae puniantur etiam dimissione e
statu clericali, si delicti adiuncta id suadeant, praeter
poenas de quibus in can. 2357, si his locus sit.
Can. 2359
§ 1. Clerici in sacris sive saeculares sive religiosi con-
cubinarii, monitione inutiliter praemissa, cogantur ab
illicito contubernio recedere et scandalum reparare
suspcnsione a divinis, privatione fructuum officii,
beneficii, dignitatis, servato praescripto can. 2x76-2181.
§ 2. Si delictum admiserint contra sextum decalogi
praeceptum cum minoribus infra aetatem sexdecim
annorum, vel adulterium, stuprum, bestialitatem,
sodomiam, lenocinium, incestuni cum consanguineis
aut affinibus in primo gradu exercuerint, suspen-
dantur, infames declarenturf quolibet officio, beneficio,
dignitate, munere, si quod habeant, priventur, et in
casibus gravioribus deponantur.
§ 3. Si aliter contra sextum decalogi praeceptum de-
liquerint, congruis poenis secundum casus gravitatem
coerceantur, non excepta officii vel beneficii privatione,
maxime si curam animarum gerant.
1 1 Whether the signs are sufficient issued the penal sentence in the
is to be decided by the one who ecclesiastical court.
Go >gle
% ,.] , Original from
UNIVERSITY OF WISCONSIN
1
CANON 2359 417
These two canons have one and the same object in
view, vis.: to punish more severely the crimes referred
to in can. 2357, which are punished gradually, i. e., ac-
cording to the degree of the clerical state.1 But what
was stated as to consummate acts, by way of explanation
of the preceding canon, etc., also applies here.
r. Clerics in minor orders who are proved guilty
of an offense against the sixth commandment, are to be
punished in proportion to the seriousness of the trans-
gression, even with dismissal from the clerical state if
necessary, i. e., if the circumstances demand it ; be-
sides, the penalties stated in can. 2357 must be applied
if the crime is such as to call for then>.
2. Clerics in sacris, t. e., from subdeaconship upward,
either secular or religious, who live in concubinage, must
first be canonically warned.2 If the warning proves fruit-
less, they are to be compelled to give up the unlawful
relation and to repair the scandal by suspension a divinis
(see can. 2279, § 2, n. 2), privation of the income from
office, from benefice, and from dignity. But the pro-
cedure stated under can. 2176-2181 must be observed.
3. Clerics in sacris, secular or religious, who have com-
mitted a crime against the sixth commandment with a
person of either sex who has not completed the sixteenth
year, or who have committed adultery, rape, bestiality,
sodomy, panderage, incest with blood or legal relatives
in the first degree,8 shall be suspended, declared infa-
mous, deprived of every office, benefice, dignity, and
charge they may hold, and, in more serious cases, shall
be deposed.* All these penalties, though preceptive (see
1 Former penalties: deposition, I That is to say: with mother,
removal from office, imprisonment in daughter, stepmother, stepdaughter,
a monastery; see cc. 6, 38, C. 27, sifter, stepsister, sister-in-law,
q. 1. * See can. 3378, | z\ 2291, n. 4;
9 See can. 2176. "$8, » 6; 2298, c. 10.
>Ie
£ " ^ v J„ Original fro ni
UNIVERSITY OF WISCONSIN
4i8 PENALTIES
can. 2223), are ferendae sententiae and, therefore, re-
quire a canonical warning (see can. 2233).
4. Clerics in sacris, either secular or religious, who have
committed a delinquency contra sextum not mentioned
in the preceding two sections, must be punished in pro-
portion to the grievousness of the sin. Such delinquents,
especially if they are entrusted with the care of souls,
may also be deprived of their office or benefice.
G I Originalfrom
UOglC UNIVERSITY 0FWI5C0NSIN
p
TITLE XV
CRIMEN FALSI OR FORGERY
Under this heading were formerly reckoned not only
the crimes mentioned in can. 2360 and 2362, but also
forgery of weights, measures, and money, and the substi-
tution of children (swppositio partus alieni). l Our text
retains only two of the former subjects classed in this
category, namely, forgery of papal documents and
forgery of ecclesiastical documents and acts. But it adds
obreptitious and subreptitious rescripts, and above all the
act of falsely accusing a confessor of solicitation in the
confessional.
FORGERY OF PAPAL DOCUMENTS
Can. 2360
§ 1. Omnes fabricatores vel falsarii litterarum, de-
cretorum vel rescriptorum Sedis Apostolicae vel
iisdem litteris, decretis vel rescriptis scienter utentes
incurrunt ipso facto in excommunicationem special!
modo Sedi Apostolicae reservatam.
§ 2. Clerici delictum de quo in § 1 committentes
aliis poenis praeterea coerceantur, quae usque ad pri-
vationem beneficii, officii, dignitatis et pensionis ec-
clesiasticae extendi possunt; religiosi autern priventur
omnibus officiis quae in religione habent et voce activa
1 Sec the commentators on X, V,20, de crimine fslsi.
419
>Ie
C* -* v J„ Original from
UNIVERSITY OF WISCONSIN
420
PENALTIES
■
ac passiva, praeter alias poenas in propriis cuiusque
constitutionibus statutas.
The canon mentions three classes of criminal tamperers
with official documents of the Apostolic See.
1. Fabricatorcs are forgers. To forge a document
means to make a false imitation of it. The document may
be dra\Vn from pre-existing material, as, for instance, the
Pseudo-Isidorian Decretals. The idea of forgery in the
strict sense embraces the document as a whole ; a docu-
ment is a forgery when it purports to be what it is not;
or, in other words, when it not only tells a lie, but
tells a lie about itself.3 That such a document cannot
be called genuine, is evident. It is the task of diplomat-
ics — as this art is called since the time of Mabillon
— to determine the genuineness of documents. In
the Middle Ages the seal appended to or impressed
upon a diploma was considered a decisive proof of its
genuineness.8
2. Falsarii are those who partly forge a document by
interpolating, changing or correcting it 4 with the intention
of defrauding (cum dolo et jactura). Our canon does not
exclude this malicious intention, for there can be no rea-
sonable doubt that falsarii is used here in the same sense
as in the " Apostolicae Sedis/' ■ where the commentators
3 Kenny-Webb, /. ft, p. 240.
8 IlresRlnu, Urbundctileltre, 1880,
p. 5 ff. The diplomaticists distin-
guish internal and external marki
of genuineness.
4 Cfr. c. 5, X, V| ao: appending
a genuine bull or seal to false docu-
ments, changing the string of hemp
or silk, using closure, caustics, etc.
G 8 I, g. "Omnes falsarios title-
rarum Apostolicarwn, ttiam in for-
ma Brer-is ac supplicaticnum gratiam
vel iustitiam concernentium per Ro-
manum Pontificem vel S. R. E. Vice-
Cancellarios sen Cerent es victs
corum ouf ac mandata ciusdem
Romani Pontificis signalarum: nee
non falso pubHcantes Litteras
Apottolitas, etiam in forma Brrvis,
et ttiam falso signantes snpplica-
tioncj huiuimcdi sub nutnin*
Romani Pontificis, seu Vice-Cancel-
larii aut Gercntis vices praedic-
torum."
jle
Original from
UNIVERSITY OF WISCONSIN
CANON 2360 421
unanimously understood it in the sense of intentional
fraud. We can hardly imagine that any one would
tamper with papal documents just for fun. But the
fabricatores, as distinguished from falsifiers, need
not have an evil intention. The crime is committed if
a false document is made.6 It is an outrage to public
authority, especially since such a document may be
passed on to others. Therefore, the penalty is incurred
as soon as the document is completely manufactured. As
to the falsifiers, a dolus or malicious purpose is certainly
required, but it does not matter whether the effect
intended is or is not produced.
3. Those who knowingly use (or rather abuse) such
forged and falsified documents, are also mentioned. The
word uti, to make use of or enjoy, may mean by exhibi-
tion or offer either to benefit oneself or another, although
the intention may have been frustrated by discovery.
But mere reading, although knowingly done, would cer-
tainly not constitute the act of " using."
4. The documents here intended are letters, decrees,
or rescripts of the Apostolic See,7 •. e., documents
emanating either from the Pope himself or from some
department of the Roman Court
5. The penalty for all fabricators and forgers of papal
documents, and those who knowingly use them, is ex-
communication incurred ipso facto and reserved modo
spcciali to the Apostolic See.
Clerics, besides incurring this censure, are to be pun-
ished otherwise, even with privation of benefice, office,
dignity, and ecclesiastical pension. Religious are to be
punished with privation of all offices they hold in their
institute (including prelacies) and of the active and
P
13
"-.
a D'Annibale, /. c, p. 53, n. 81. 7 Sec can. 7.
oogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
422 PENALTIES
passive vote, besides other penalties established in their
constitutions.
*
LI
SURREPTITIOUS AND OBBEPTITIOUS RESCRIPTS
a
Can. 2361.
Si quis in precibus ad rescriptum a Sede Apostolica
vel a loci Ordinario impetrandum fraude vel dolo
verum reticuerit aut falsum exposuerit, potest a suo
Ordinario pro culpae gravitate puniri, salvo prae-
scripto can. 45, 1054.
Those who fraudulently or deceitfully suppress the
truth or state a falsehood in a petition for a rescript
addressed to the Apostolic See or the local Ordinary, may
be punished by the latter according to the grievousness of
their guilt.
However, according to can. 45, all rescripts are now
valid, even if some essential point has been suppressed,
provided the final or motive cause has been truly stated.
And rescripts for matrimonial dispensations are valid
even if the motive or final cause has been misrepresented.
Thus can. 1054.
The penalty is optional and may therefore be inflicted
by the Ordinary according to can. 2223, § 2, or not, as
he chooses. The Ordinary qualified to inflict the penalty
is the one whose subject has obtained the rescript under
false pretences ; for religious, their immediate superior.
FORGERY OF OTHER ECCLESIASTICAL DOCUMENTS
Can. 2362
Litterarum vel actorum ecclesiasticorum tarn publi-
oogle
% ,1,., Originalfrom
UNIVERSITY OF WISCONSIN
-'
CANON 2362 423
corum quam privatorum fabricatores vel falsarii vel
huiusmodi documentis scienter utentes, pro gravitate
delicti coerceantur, firmo praescripto can. 2406, § 1.
Those who forge or falsify ecclesiastical letters or acts,
either public or private, as well as those who knowingly
make use of such spurious documents, shall be punished
proportionately to the seriousness of their crime. Those
who are charged with compiling, writing or keeping
official acts shall, in case such acts are criminally
tampered with, be punished according to can. 2406,
1 1.
Can. 1813 defines the term public ecclesiastical docu-
ments. They are: acts of Ordinaries, — for instance
appointments and regulations emanating from the dio-
cesan chancery, instruments drawn up by an ecclesiastical
notary, judiciary acts of every kind pertaining to ecclesi-
astical courts, the different parochial books, etc.
Private documents: private letters, contracts or deeds,
or abstracts thereof, legacies and bequests, as far as
they pertain to ecclesiastical persons as such, not as pri-
vate persons.
The penalty is obligatory, but arbitrary and propor-
tionate, inasmuch as it is left to the Ordinary (or super-
ior of exempt religious), who must weigh the importance
of the document, the condition of the delinquent, and
the damage caused by the criminal act. Formerly the
punishment was deposition, i. «., reduction to the lay
state, and perpetual penance in a monastery, for bishops
as well as clerics of lower rank.1
lSeec. 7, Dist. 50. Ecclesiastical were guilty of such unqualified acts;
corporations as well as individuals sec Hresslau, /. c, p. 972 ff.
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
424 PENALTIES
FALSE ACCUSATION OF SOLICITATION
Can. 2363
Si quis per seipsum vel per alios confessarium de
sollicitationis crimine apud Superiores falso denun-
tiaverit, ipso facto incurrit in excommunicationem
speciali modo Sedi Apostolicae reservatam, a qua ne-
quit ullo in casu absolvi, nisi falsam denuntiationem
formaliter rctractaverit, ct damna, si qua inde secuta
sint, pro viribus reparaverit, imposita insuper gravi ac
diuturna poenitentia, fir mo praescripto can. 894.
One who either himself or through others falsely
accuses a confessor of the crime of solicitation to his
superiors —
1. Incurs ipso facto the excommunication reserved
to the Apostolic See modo speciali,
2. From which he can in no case be absolved, unless
3. He has formally retracted the slanderous denuncia-
tion, and
4. Has repaired, as far as possible, the damage caused
by his act
Besides a grave and lasting penance must be imposed
on him, and canon 894 be duly observed.
What solicitation is has been explained under can.
894. It is provocatio ad turpia in the act or under the
species of sacramental confession.1
a) The denunciation must be made judiciarily, i. e.,
either to the Holy Office or to the Ordinary, and must
be effective,2 i. e.f be accepted as a means of prosecution.
a
-
<
1 Sec Vol. IV of our Commtn- 2 Hollweck, /. c, p. a8o, note 4.
tory. p. 31S f-
§le
£ " ^ v J„ Original from
UNIVERSITY OF WISCONSIN
CANON 2363 425
The effect is assured when the summons is issued to
the accused or to the witnesses.
A false denunciation is one based on (at least sub-
jective) untruth. Falsity always supposes prevarication
of the truth, done with malice (dolus). However, it may
happen that a penitent has misunderstood a question put
to him by the confessor and construed it as a solicita-
tion. In this case the malice or subjective untruth would
be wanting". The confessor might be an innocent victim
until the prosecution cleared up the mistake.
Denunciation may be made by the penitent himself
for any motive, — hatred, anger, revenge, etc. — or
through others, by means of impious advice, promises,
flattery, threats, or even ambiguous insinuations.
b) The censure can in no case be absolved from unless
the conditions mentioned are complied with; hence
neither in the case of danger of death — which was
excepted by Benedict XIV in the Constitution quoted
below 8 — nor in the cases mentioned under can. 2254.*
The condition next mentioned is
c) Formal retraction, which is to be made to the same
authorities before whom the accusation was brought, and
in a judiciary way. If this is impossible on account of
the physical or mental condition of the culprit, the con-
fessor may receive the retraction, absolve the penitent
(immediately if required), and then report to the author-
ities.
The other condition of repairing the damage has tractum
tctnporis, and therefore, in case of urgent necessity, a
serious promise may he accepted.
The question may here be asked: Would the oft-
-
a Bened. XIV, " Saerammtum term nequit t« utto casu. although
poenitentiae," June i, 174'. S J- not especially mentioned in can.
4 This seems to be implied by the 2*54, 9 3-
►ogle
% .J,., Original fro ni
UNIVERSITY OF WISCONSIN
426 PENALTIES
St
o>
solution be valid if no formal retraction had been made?
Provided the priest had the necessary faculty, or the
circumstance was one mentioned in can. 2252 or 2254, we
believe that the absolution would be valid. For the
nequit can just as well be referred to illicit absolution,
and therefore the minimum must be assumed. Besides,
retraction and reparation certainly cannot be made at the
moment of confession. Consequently, we would have to
say that absolution would be valid only after the reparation
was made, which would hardly be admitted by theologians.
As to the gravity and duration of the penance, the general
rules given by moralists may be consulted.6
A last remark, inspired by some magazine articles,8
may be permitted. The sin mentioned here is reserved,
not only by reason of the censure attached, but on its
own account (ratione sui), and it is the only one thus re-
served. This is reservation pure and simple, or limita-
tion of jurisdiction, which requires only the necessary
matter and that the persons be subject to the power of
jurisdiction. Since the sin as such is reserved, and is
supposed to be complete in genere suo, it follows that a
person by committing this sin is withdrawn from the ju-
risdiction of any one inferior to the Pope, and consequently
neither ignorance nor doubt can excuse the delinquent
Arregui (Sutnmarium Thcol. M oralis, 1919, ed. 4, n.
607, note 2, p. 388) insists on the wording of the
" Sacramcntutn Poenitentiac," which says, " ut tarn de-
testable faeinus tnetu magnitudinis poenae coerceatur."
But does the finis legis fall under the law itself? The
" ut finale " would indeed have weight if the context were
not contradictory.
8 Hearing Mail, Litany of All fl Sec Eccl. Review, Vol. 59, p.
Saints, five decades of the Rosary, 458 II.; Vol. 60, p. 61 ff.
are grave penances; Lehmkuhl, II,
n. 337.
>Ie
j , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2363 427
Here we may add another observation provoked by
some writers (see Eccl. Review, 1921, May, Sept., Nov.).
The controversy concerns the extent to which the " peri~
culum grains scandali vel infamiae " may be stretched.
Can. 2254, § 1, where this phrase occurs, has reference to
a rather urgent case, casus urgentior. An objectively
light reason would hardly be acknowledged as sufficient to
absolve from censure. For the matter of censure is a
serious one, and the confessor is therefore obliged in con-
science not to make light of it. However, the confessor
is judge and physician in the confessional and minister of
God's justice and mercy (Can. 888, §1). Therefore he
is entitled to use his own judgment in the matter of ab-
solution, lie must consider the grievous faults and the
serious penalty on the one hand, and the welfare of the
penitent on the other. But the welfare of the individual
must cede to the welfare of society. Hence, when the
public weal would be jeopardized, human respect or the
consideration of private benefit must give way. There-
fore, when a notorious violation of a penal law is involved,
we cannot convince ourselves of the permissibility of ab-
solving for a light reason, such as devotional or even so-
ciety communion would be. But when the transgression
is not a notorious violation, and the public welfare not in
danger, we do believe that any plausible reason which ap-
pears such to the confessor is sufficient. — The interpre-
tation of " quoquo tnodo," in can. 899, § 3, as if this could
mean " for examples, in synodo ant extra synodutn,"
sounds to us very improbable. For can. 895 tells the
Ordinary the conditions or methods he should observe in
reserving cases; but this produces no effect on reserva-
tion itself. And the " quoquo modo " concerns the mode
of reserving which is twofold : under sin only, or under
censure.
oogl
Original from
UNIVERSITY OF WISCONSIN
TITLE XVI
UNLAWFUL ADMINISTRATION AND
RECEPTION OF ORDERS AND OTHER
SACRAMENTS
c
s
Two Sacraments are especially protected by penal
sanctions: Penance and Orders. Extreme Unction is not
mentioned, though formerly religious were forbidden
under censure to administer it.1 Four canons of this
Title refer to the Sacrament of Penance, five canons to
Orders, and one each to Confirmation and Matrimony.
The first canon is devoted to the administration of the
Sacraments in general.
ADMINISTRATION OF THE SACRAMENTS TO PERSONS
FORBIDDEN BY LAW TO RECEIVE THEM
Can. 2364
Minister qui ausus fuerit Sacramenta administrare
illis qui iure sive divino sive ecclesiastico eadem rc-
cipere prohibentur, suspendatur ab administrandis
Sacramentis per tempus prudenti Ordinarii arbitrio
denniendum aliisque poenis pro gravitate culpae puni-
atur, nrrnis peculiaribus poenis in aliqua huius generis
delicta iure statutis.
Ministers who dare to administer the Sacraments to
such as are forbidden to receive them by cither dkrine
or ecclesiastical law, should be suspended by the
1 "Apostolicae Stdis." II. 14.
428
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
CANON 2364 429
Ordinary from administering the Sacraments, for a time
to be determined by the same Ordinary according to his
own judgment, and punished with other penalties accord-
ing to the gravity of the guilt. Special penalties decreed
for specified transgressions of this kind remain untouched.
The administration of a Sacrament is unlawful not
only in case of invalid, but also of illicit reception, for
the Code does not distinguish, but only states: recipere
prohibentur, which may be applied to invalid as well as
illicit administration.
The Code states that the prohibition may be dictated
either by divine or by ecclesiastical law.
1. The divine law excludes
a) From Baptism those incapable of receiving it ac-
cording to can. 745, § 1 ;
b) From the other Sacraments those who arc not
baptized,2 as well as heretics and schismatics.1 Note also
can. 968, § ir according to which only males can be validly
ordained.
The ecclesiastical law excludes
a) From any Sacrament all those who are excommuni-
cated and personally interdicted;*
b) From Baptism the children of non-baptized parents,
and of heretics and schismatics ; adults against their own
will and amentes; 5
c) From holy Commttnion public indigni and those
who unlawfully break the natural fast;0
d) From Extreme Unction those who, being of the
age of reason, are not sick, according to can. 940;
e) From Orders those who are irregular or subject to
a simple canonical impediment.7
2 See can. 786; 853; 9<"! 94°; 5 Can. 75»-752» 754-
9$8; 101a, 5 «. 0 Can. 855, | t| can. B58.
3 See can. 731, 9 2. 7 Can. 984, 985, 987.
4 Can. ■.■■'■■:<. f II 3275, n. 2.
oogle
Original from
UNIVERSITY OF WISCONSIN
430 PENALTIES
As to marriage, observe that the priest merely assists
at, but does not administer, the Sacrament of Matri-
mony, and that, therefore, can. 2364 cannot be applied
in this case.
The penalty is both inndictive and preceptive, and ac-
companied by irregularity if any act of the power of
orders is exercised.8 The text states: firms peculiaribus
poems, etc. The act of unlawful administration may,
besides, have a special penalty attached, by reason of a
special circumstance, as in regard to can. 2338, § 3, ad-
mitting excommunicated, interdicted, or suspended per-
sons to the reception of the Sacraments.* Attention is also
drawn to the term, ausus fuerit, which must be under-
stood in the light of can. 2229, § 1-2.
CONFIRMATION ADMINISTERED BY A PRIEST
Can. 2365
Presbyter qui nee a iure nee ex Romani Pontificis
concessione facultatem habens sacramentum con-
flrmationis ministrare ausus fuerit, suspendatur; si
vero facultatis sibi factae limites praetergredi prae-
sumpserit, eadem facultate eo ipso privatus exsistat.
A priest who, though he is empowered neither by law
nor by Apostolic faculty to administer Confirmation, yet
dares to administer this Sacrament, must he suspended.
If he presumes to overstep the limits of a faculty which
he actually possesses, let him be deprived of this faculty
ipso iure,
1. Priests empowered by law to administer Confirmation
ft Can. 965. n. 7; aaaj; 2J98, n. a. Eichmann, /. ft, p. 198.
9 See also can. J370, 2373, 2375;
jle
t * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 2365-2366 431
are all cardinals, abbots mtllius, and prelates nullius,
vicars and prefects Apostolic*
2. Priests empowered to confirm by an Apostolic priv-
ilege or faculty, arc those who have obtained this priv-
ilege by papal delegation or subdelegation, as stated else-
where.2
If any priest not empowered by law or by a papal
faculty should dare (ausus fucrit) a to administer Con-
firmation, he is to be suspended either by his Ordinary
or by higher authority. The suspension here worded in
general terms must be taken as a general suspension.*
Besides, if those endowed with the power of administering
Confirmation should dare to exceed the territorial or per-
sonal limits assigned to them, or to extend it beyond the
duration of their office or of the term granted in the
indult, they lose the power or faculty.
HEARING CONFESSION'S AND GIVING ABSOLUTION
FROM RESERVED SINS WITHOUT JURISDICTION
Can. 2366
Sacerdos qui sine necessaria iurisdictione prae-
sumpserit sacramentales confessiones audire, est ipso
facto suspensus a divinis; qui vero a peccatis reser-
vatis absolvere, ipso facto suspensus est ab audiendis
confessionibus.
This canon mentions two distinct transgressions:
I. A priest who dares to hear sacramental confessions
1 See can. 782, 9 3; it is supposed 4 See can. 1178. 9 a; see can. 783,
that these dignitaries have not | 3, 4, 5: formerly an Oriental or a
received episcopal consecration. Ruthenian priest confirming a Latin
8 See Vol. IV of this Cctnmen- child was ipso facto suspended; S.
tary, p. 102 f. C. P. F., Oct. 6, 18O3 {Coll., n.
8 See can. 2229, 9 2. 1243)-
>gle
Original fro ni
UNIVERSITY OF WISCONSIN
■
pi
432 PENALTIES
without the necessary jurisdiction, is ipso facto sus-
pended a divinis.
1. The culprit is supposed to be a validly ordained
priest, not a layman or cleric who has not yet received
the priesthood. Of the latter can. 2322, n. 1, treats
under crimes against religion.
2. The priest may he either secular or religious, and
it matters not what kind of a privilege he may have ob-
tained, provided he hears sacramental confession with-
out being endowed with the necessary (ordinary or dele-
gated) jurisdiction.1
3. Concerning exempt religious, if they wish to
hear confessions of lay persons or of Sisters with
either solemn or simple vows, they need a special faculty
or jurisdiction from the local Ordinary in whose diocese
the confessions are to be heard.2
4. This faculty now required according to can. 879,
§ I. must be granted expressly, either in writing or
orally.
5. The act must concern sacramental confession ac-
cording to can. 2322, n. I. A confession is sacra-
mental also if it involves only venial sins, and hence
a simplex sacerdos without jurisdiction or faculties can
not hear confessions the matter of which are only venial
sins.8 If the confession was sacramental, it matters not
whether absolution was given or not, because the text
simply says: to hear sacramental confessions. The
same term also occurs in the papal constitutions quoted
below.
1 See can. 87a. 873, 874. 878, 8 1. XIV, "Apostoliea iudmlta," Aug. 5,
2 Ibid.; also Innocent X, "Cum 1744, 55 3, 5.
stent," May 14, 1648, fi 3, 4, I, ad 3 It may appear strange to state
xo (Bull. Luxcmb., 1727, t. V, this explicitly, but the S. C. C, Feb.
458 t\). Even the privileges of the ia, 1679 (Co//. P. F., n. 319) had
Cruciala are of no avail ; Bened. occasion to emphasize it.
jle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
■
pi
CANON 2366 433
6. The penalty is suspension a divinis incurred ipso
facto according to can. 2279, § 2, n. 2. However, note
the term praesumpserit, which presupposes that the act
was done with full knowledge and deliberation (can.
2229). It might easily happen that a pastor or priest
would think that he could hear the confessions of fe-
male religious in virtue of his general faculties. If
under such an impression he did so, he would not incur
the censure. Neither would he incur this penalty if he
were in doubt (can. 209). and much less if he would
hear the confession of a person in danger of death (can.
882).
II. Priests who dare to absolve from reserved sins are
ipso facto suspended from hearing confessions.
1. What was said above I, 1-4 also applies here.
2. This case supposes that absolution was " attempted,"
». e., pronounced by a priest who, though perhaps pos-
sessed of ordinary faculties, did not have the special
faculty required for absolving from reserved sins.
3. The reservation concerns sins, not censures, these
being mentioned under can. 2338, § r, as a usurpation of
authority. To this class, therefore, belong the case
mentioned in can. 894 (false accusation of an innocent
confessor), and those cases which the local Ordinary
may, according to can. 895, reserve to himself. From
the latter cases, however, any confessor may absolve ac-
cording to can. 900. Can. 882 mentions a lawful excuse
from incurring the censure.
If superiors of exempt clerical religious have reserved
cases to themselves, according to can. 986, their subjects
would incur the censure if they absolved from these cases
without possessing any other faculty than that granted
by their superior. However, if they possess faculties
from the local Ordinary, and absolve from sins reserved
oogle
Original from
UNIVERSITY OF WISCONSIN
-
434 PENALTIES
in their institute, they do not incur the penalty. Neither
would secular priests absolving religious from sins
reserved in their order incur the penalty, according
to can. 519. But confessors, secular or religious, who
would ahsolve female religious from sins reserved by
the local Ordinary would incur the penalty, and could be
removed from office.*
ABSOLUTIO COMPLICIS
Can. 2367
§ 1. Absolvens vel fingens absolvere complicem in
peccato turpi incurrit ipso facto in excommunica-
tionem specialissimo modo Sedi Apostolicae rescr-
vatam; idque etiam in mortis articulo, si alius
sacerdos, licet non approbatus ad confessiones, sine
gravi aliqua exoritura infamia et scandalo, possit ex-
cipere morientis confessionem, excepto casu quo mo-
ribundus recuset alii confiteri.
§ 2. Eandem excornmunicationem non effugit ab-
solvens vel fingens absolvere complicem qui peccatum
quidem complicitatis, a quo nondum est absolutus, non
conhtetur, sed ideo ita se gerit, quia ad id a complice
confessario sive directe sive indirecte inductus est.
Those who absolve, or feign to absolve, an accomplice
in peccato turpi, ipso facto incur the excommunication
reserved modo specialissimo to the Apostolic See.
To what was said on this subject elsewhere1 only a
few remarks need be added:
4 S. C. EE. et RR-, Sept. 3, 1746 complice is forbidden by the natural
(Bizzarri, Collectanea, p. 365)- law on account of the danger of
1 See this Commentary, Vol. IV, temptation; D'Annibale, L c, p. 55i
p. 291 ft. Hearing (voluntarily and a. 85.
knowingly) the confession of an ac-
>Ie
Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2367 435
T. The act forbidden under censure and declared
invalid by can. 884 is absolution, not merely hearing con-
fession. Therefore, any manifest refusal to absolve
("I am not in a condition to absolve you," etc.) would
be sufficient to ward off the censure.
2. Feigning to absolve would not render one immune
from the penalty. To feign or simulate (fingere) is to
make an act or thing appear real or true when it is not
so. To absolve fictitiously, therefore, would be to act
as if absolution were given and thus lead the penitent to
consider himself absolved. Thus giving a penance and
making the sign of the cross, or even omitting the pen-
ance and giving the blessing in a way which the penitent
could construe as an absolution, would be simulation or
fictitious absolution, provided there were a dolus on the
part of the confessor,2
3. § 2 of can. 2367 states explicitly that the censure is
incurred even if the confessor absolves an accomplice
who does not confess t)ie sin of complicity front which
he ivas not yet absolved, but conceals that sin, because
he uras induced by the confessor not to confess it either
directly or indirectly.
This text is taken verbally from a decision of the S.
Poenitentiaria, a which also explains the terms directly
and indirectly.
A confessor would induce an accomplice directly if
he would previously tell him or her not to mention the
sin of complicity, because he already knows of it or be-
cause its manifestation would be useless. He would in-
duce the accomplice indirectly if he would persuade him
or her that the turpis actus is no sin or not grievous enough
2 Thus Eichmann, /. c, p. *oi ; a Feb. 19, 1896 (Coil. P. F.t n.
but the dolus is presumed, according 1916).
to can. 2200, B 2.
G 1 Originalfrom
OOglL UNIVERSITY 0FWI5C0NSIN
436 PENALTIES
to scruple about, thus leading the penitent to conclude
that the sin of complicity need not be mentioned and
causing him not to mention it It can no longer be
taught, therefore, as was the case before the promul-
gation of the Code, that simulating absolution would
render the confessor immune from censure.* For, as
the above-quoted decision of the S. Poenitentiaria clearly
states, such an admission would render the censure
almost illusory.
4. From the same decision,5 as well as from our text
itself, we may indirectly deduce that if the sin of com-
plicity had been properly and lawfully absolved by an-
other confessor, the censure would not be incurred by the
guilty priest, even though the accomplice would mention
it to him in the confessional."
5. The complicity must concern a pcccatitm turpe,
i. e.t contra sex turn, which amounts to a grievous sin.T
Besides, since complicity here refers to the act of ab-
solution, it is evident that, if the confessor does not rec-
ognize the penitent as his accomplice in peccato turpi,
he may lawfully and validly absolve him. The same is
true in case of a positive and well-founded doubt about
the identity of the person.8
6. As to the case of necessity, can. 2254 must be con-
sulted. But this very canon refers to our canon 2367,
a
which, in § 1, determines the mortis ar tic ul us as follows:
In point of death, i. c., when the danger of death is real
4S. O., Dec. 5, 1883 {Coll. cit., a. omnia peccata grain* et exterius
1608). eommissa contra eastitatem, eliam ilia
fi S. Pocnit, /. c. quae consistent in neris colloquiis
e D'Annibale, /. c, p. 57, n. 87. ct aspectibus, quae compticitatem im-
7 D'Annibale, /. fH p. 54, n. 84: portent"; Ilollweck, /. c, 330, note
" Ut peccatum ad sit ultro citraque, 5.
ae ultro eitroqu* [/rev* in ipso opere 8 D'Annibale, I. r., p. 56, n. 86;
externa."— S. O., May a8, 1873: Hollweck, ib., note a.
" Comprehendi nedum tactus, verum
>Ie
C^ ^ ^ ,|„ Original fro m
UNIVERSITY OF WISCONSIN
CANON 2368 437
and certain, provided no other priest, whether endowed
with jurisdiction for hearing confessions or not, can be
called without serious infamy or scandal. If another
priest is available, he must be called, under penalty of
censure, unless the dying person should reftesc to confess
to another priest.9
7. Concerning ignorance it has been declared that nei-
ther ignorantia crassa nor supirta, much less, of course,
affectata, excuses from censure.10 Absolution from oc-
cult cases of this kind is not included in the power granted
to the Ordinaries by the Code."
8. Finally, it may be observed that members of the
Oriental rites are also subject to this censure.12
SOLLICITATIO
Can. 2368
§ 1. Qui sollicitationis crimen de quo in can. 904,
commiserit, supendatur a celebratione Missae et ab
audiendis sacramentalibus confessionibus vel etiam
pro delicti gravitate inhabilis ad ipsas excipiendas
declaretur, privetux omnibus beneficiis, dignitatibus,
voce activa et passiva, et inhabilis ad ea omnia de-
claretur, et in casibus gravioribus degradationi quo-
que subiiciatur.
§ 2. Fidelis vero, qui scienter omiserit eum, a quo
sollicitatus fuerit, intra mensem denuntiare contra
praescriptum can. 904, incurrit in excommunicationem
latae sententiae nemini reservatam, non absolvendus
8 See Vol. IV of our Commentary, U Sec can. 2237. 6 2; S. O., Sept.
p. 593. 13, 1859, ad a-3 (Call. eit.. n. if8t).
10 S. O., Jan. 13. 1S92 ad 3 (Colt. 12 S. C. P. F., Aug. 5. 1885 (10.,
P. F., n. 1777); sec can. 2*29. a. 1640).
G 1 Original from
OOglC UNIVERSITY QFWI5C0NSIN
438
PENALTIES
nisi postquam obligationi satisfecerit aut se satis-
facturum serio promiserit.
1. What solicitation means has been explained under
can. 894 and 904- The earliest document referring to
this crime is the Constitution of Pius IV, " Cum sicut
nuperf* of April i6t 1561, which was directly intended
for Spain. The Constitution of Gregory XV, " Uni-
verse," of Aug. 30, 1622, had a general bearing, and is
more explicit as to the nature and extent of solicitation.
The source par excellence of our Code is the Constitution
of Benedict XIV, " Sacramentum poenitentiae" of
June 1, 1741,
That feigned confession is also intended seems to
follow from the term praetcxtus, which indicates a
simulated act committed in order to accomplish the evil
intention more freely.1
2. The Code says tliat those guilty of the crime of
1 Cfr. Thesaurus-Giraldi, /. c, P.
II, p. 413 f. The words of ihc con-
stitution of Bcncd. XIV: " vel ttiam
extro occasionctn confessionis in
eonfessionali" seem to indicate that
simulation is included; sec also Hnll-
wrck, I. c, p. 328, note 5. How-
ever, D'Annibalc, L c, p. 117, n.
181 makes some noteworthy restric-
tions concerning simulation, which
we will quote verbatim: "Simula-
tionc confessionis, reus sollicitalionis
intclligitur , qui dum fingit confes-
sivactn audire, pravocat ad turpia.
I'erum ut videatur simulate confes-
sionem, opus est ut specie leiius,
ijua alii decipiantur, eonfess'tc agi
videatur. Proinde necesse est, ut
stet vel in confessionario, vet in loco
destinoto, nut electa ad audiendas
confessiones; utqui nedum in hoc,
et m isto, quod nemo dubitat, sed in
%llo fingat se confessionem audirt.
Proetcstu, qui v. c. aliquem ad con-
fessionem invitat, ut provocet ad
turpia, licet ad veram confessionem
invitet: praetertus enxm est Quod
intentionem obtegit facto aliquo sen
apparent*, sen vera. - Quocirca sol-
licitatio cessat, si ncn ifse, sed poen-
itens confessionem praetcsuit; vet
ipse quidem. sed ut alium, tnon
pocnitentem) deciperet; vet uterque
e.r con dido ut alios fallcrent.
Verum si is cubiculum aegrotantis in-
gressus, rogatu ipsms adstanter re-
eesjerint, et remanserit solus cum
solo quasi confessionem exceptants,
notme videtur cam jollicitare si'tula-
tione confessionis? Minime, quippe
non so II id tat occasione confessionis,
sed turpiter agit." (St. Alph., VI,
679).
>ogle
Original fro rn
UNIVERSITY OF WISCONSIN
CANON 2368 439
solicitation, according to can. 904, (a) are to be sus-
pended from saying Mass and hearing confessions or
declared incapable of hearing sacramental confession,
according to the grievousness of the crime; (b) Should
also be deprived of all benefices and dignities and of
the active and passive vote, and be declared incapable of
holding or exercising both; (c) In more serious cases
they should be subjected to degradation.
3. AIT these penalties are ferendae sententiae, and
therefore require a procedure in conformity with the
instructions alleged elsewhere.2 According to the Con-
stitution quoted above, the inquisitors and local Ordin-
aries are the guardians and executors of criminal pro-
cedure and sentence in cases of solicitation. The Con-
stitutions except no dignitary from these penalties.
Cardinals, however, are clearly exempt under can. 2227,
§ 2. But to exempt bishops from them on the plea that
inquisitors would be incompetent* to proceed against them
and for the reason that they are not wont to hear con-
fessions,8 is more than we can understand. For the Holy
Office can always be approached, and the Pontiff in
person could take cognizance of such a case, according
to can. 1557, § 1, n. 3. The other plea, that bishops are
not accustomed to hear confessions, has no foundation
in our country, where many a bishop takes his regular
turn in the confessional in the cathedral and clsewhere-
Dcgradation, according to the Constitution of Gregory
XV, was to be decreed only for enormous crimes of
solicitation, and after being degraded, the culprits were
to be handed over to the secular power.
2 See Vol. IV of this Coramen- however, with Berardi, leans t5
tary. p. 343 ff.; S. O., March 18, the opinion stated above. Besides,
1863 (Coll. P. F., n. J337). can. 9337, 8 a. do«i not exempt
3 Thus some authors quoted by bishops from these penalties.
Hollweck, /. c, p. 3'7 note 2, who.
ogle
£ * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
440 PENALTIES
§ 2 of can. 2368 imposes the strict obligation on every
person solicited by a confessor to denounce the latter,
Wlioever knowingly omits such denunciation for a month,
as prescribed by can. 904, incurs excommunication latae
sententiae, reserved to no one, from which, however, he
cannot be absolved unless he has complied with, or
seriously promised to satisfy, his obligation.
The duty of denouncing clearly binds whenever the
following circumstances * concur :
1. The person to be denounced must be a priest; he
may be of any rank or dignity, cardinals and, possibly,6
bishops, excepted.
2. The solicitation must be ad inhonesta et turpia,
sive verbis, sive signis, sk/e ntttibus, sive tactu, sive per
seripturam, tunc aut postea legendam, i. e., a mutual,
grievous, external sin against the sixth commandment,
committed with a person of the same or the other sex#
whether solicited for himself (the confessor) or for
another person; whether the solicited person consented
or not.6
3. The solicitation must, in one way or another, con-
cern confession, either as occasion or pretext, either in
a place properly destined for confession or at least con-
nected with the act of confession, — immediately be-
fore or immediately after. It is, however, immaterial
whether the penitent understood the solicitation at once
or only afterwards. But there can be no obligation of
denouncing the confessor if the solicitation was not
certain.7 How long a time may intervene between the
4 " Sacramentum Poenitentiat " ; toraewhat unlike, vim.: shynzs* in
Thcsaurui-GirsJdi, /. .-., p. 413 :.; denouncing a bishop.
EVAnnibale, /. c, p. 114 f., n. 1 -•;. 6 la the procedure the person
6 Because of the controversy must not be asked whether he or
stated above; besides there is an- she consented to the solicitation,
other reason which renders the case 7 D'AnnibaJe, I. c, a. 18a.
oogle
i"* -» v -.L* Original from
UNIVERSITY OF WISCONSIN
CANON 2369 441
solicitation and the cessation of the obligation to denounce
the culprit, is not definitely stated.8
4. As to difficulties arising from circumstances of
time and person, especially in the case of women, it
must be said that as long as such circumstances prevail,
they are not obliged to denounce the culprit.9
5. The time when tfw censure is incurred is after one
month, to be reckoned from the moment the penitent
knew or became aware of his or her obligation and of
the censure attached to the omission,. Those who
seriously promise to make denunciation — an oath is
not required — may be absolved from the censure even
after a month has elapsed.10
VIOLATION OF THE SEAL OF CONFESSION
Can. 2369
§ 1. Cofessarium, qui sigillum sacramentale directe
violare praesumpserit, manet excommunicatio spe-
cialissimo modo Sedi Apostolicae reservata; qui vero
indirecte tantum, obnoxius est poenis, de quibus in
can. 2368, § 1.
§ 2. Quicunquc praescriptum can. 889, § 2 ternere
violaverit, pro reatus gravitate plectatur salutari
poena, quae potest esse etiam excommunicatio.
■
■
There are two ways of breaking the seal of confession,
as described in the fourth volume of this Commentary.1
• The " Sacramentum Poeniten- 9 See Vol. IV of this Commen-
■
tie*" merely says: "nee post Ion- tary, p. 343.
gum tempus," and hence trien- 10 r>Annibale, /. c, p. no, n. 183.
nial prescription is noi admitted; 1 Page 303; but the or in line 5
Thesaurus-Giraldt, /. c, p. 41s; also from above should be changed into
can. 1703 excludes from prescription and; for different cases see the
cases to be brought before the Holy moralists, especially Ballerini-PaJ-
office.
jle
v ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
442
PENALTIES
■
Violation is direct if, together with the matter confessed,
the name of the penitent is revealed, either ex-
plicitly or by a description which reveals his identity.
It is indirect if, from the confessor's way of acting or
speaking there is danger that the sin of the penitent and
his identity become known, thus rendering confession
hateful.
Can. 889, § 2, obliges also interpreters and all others
who may in any way have acquired knowledge of con-
fession, to keep the seal.
r. A confessor, says our canon (§ i)f who dares to
break the seal of confession directly, remains under ex-
communication reserved modo specialissimo to the Apos-
tolic See.
a) The term confessor implies a priest2; as to others
who are not priests, whether laymen or clerics, consult
can. 2322. But whether the term supposes jurisdiction
is not quite certain. Can. 2366 punishes such priests
with suspension a divinis. Could it be a sacramental
confession if made to a priest bereft of jurisdiction?
To make such a confession, an accusation of sins in order
to obtain absolution is required. On the other hand, the
seal of confession was instituted in favor of the penitent
and the Sacrament. From this we should conclude that
even a priest destitute of jurisdiction would fall under
this censure. Yet we candidly confess that the opposite
view is just as probable. For the text, by employing the
term confessor, supposes a priest having jurisdiction,
— at least, as we say, general faculties. Besides, since
this is a most grievous penalty, it should not be extended
to any one not comprised under the name of confessor.
mien, (. c, Vol. V, p. 485 ff.; nn.
8gg ff.
2 Sec Schmaizgrueber, V, 38, n.
80.
wlbyC >Ie
Original fro rn
UNIVERSITY OF WI5C0NSI
CANON 2369 443
b) The text furthermore says, sigillum sacratnentale,
which naturally presupposes a sacramental accusation.
Therefore a fictitious or jocose confession would not in-
duce the obligation of keeping the seal, nor entail cen-
sure. Whether a sacramental confession is intended
must be judged from the words or acts which surround
the deed. However the mere lack of intention of ab-
solving the penitent would not be sufficient to excuse the
confessor from the obligation of keeping the seal, though
if he were to say : " I don't wish to hear your confession,"
this would render the accusation non-sacramental, and
no obligation would arise to keep the seal.8 The general
rule, therefore, may be stated thus : The censure is in~
curred whenever the obligation of keeping the sacra-
mental seal is violated.
c) But there is a condition to he added, namely, unless
the penitent himself — none other, not even the Pope,
can do so — has given permission to reveal something
out of confession. This permission would have to be
given expressly and freely.*
Note that the revelation of something else than the
matter of confession would not constitute a violation of
the seal. Besides, most authors say that a revelation of
merely venial sins, confessed in a general way, though by
a definite person, would not constitute a serious violation
of the seal involving censure.8
d) The penalty is excommunication latae sentential
reserved modo specialissimo to the Apostolic See, pro-
vided presumption is verified. Therefore inadvertency or
■■■
S Schmalzgrucbcr, V, 38, n. 80; H oil week, /. c, p. ayS, note 5.
B all erini- Pal mien, /. c, V, p. 490 f.; 0 Ballerini-Palmieri, I. c, V, p.
n. 909 f. 499 ff-I n- 9M ff'
4 Schmalzgrucbcr, /. c, n. 6a;
D
■
>gle
Original from
UNIVERSITY OF WISCONSIN
■
444 PENALTIES
indeliberate revelation would not induce the penalty,
which formerly was deposition and perpetual banishment
of the culprit to a monastery.*
2. Those who violate the seal of confession indirectly
are liable to the same penalties as those who are guilty of
solicitation (see can. 2368. § 1) ferendae sententiae.
3. Those mentioned above and in can. 889, § 2, namely,
interpreters and bystanders, who rashly ftemere) violate
the seal of confession, are to be punished with whole-
some penalties, according to the seriousness of the crime,
excommunication not excluded.
The following five canons treat of Orders; and the
first of episcopal consecration, for which a papal mandate
is required, as stated elsewhere,1
EPISCOPAL CONSECRATION WITHOUT AN APOSTOLIC
MANDATE
Can. 2370
Episcopus aliquem consecrans in Episcopum, Epts-
copi vel, loco Episcoporum, presbyteri assistentes, ct
qui consecrationem recipit sine apostolico mandato
contra praescriptum. can. 953, ipso iure suspensi sunt*
donee Sedes Apostolica eos dispensaverit.
A bishop who consecrates another, and the assistant
bishops or the priests taking their place, as well as the one
who receives episcopal consecration without having
obtained an Apostolic mandate, are suspended ipso iure
until the Holy See has granted a dispensation. This
is a general suspension, but has the character of a vin-
aSee c. a, Dirt. 6. dt Poenit.; 1 See Vol. IV of thU Commen-
C la, X, V, 38. Ury, p. 4*4 '-; can. 953.
oogle
Y ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2371 445
dictive penalty.* An example of its effective application
may be seen in* a papal constitution of historical
importance.3
SIMONIACAL ADMINISTRATION AND RECEPTION OF
ORDERS AND SACRAMENTS
Can. 2371
Omnes. etiam episcopali dignitate aucti, qui per
simoniam ad ordines scienter promoverint vel promoti
fuerint aut alia Saoramenta ministraverint vel rece-
perint, sunt suspecti de hacrcsi ; clericx praeterea sus-
pensionem inc.urrunt Sedi Apostolicae reservatam.
Simony is clearly defined in the Code itself, as ex-
plained elsewhere.4 Not only real simony, but also con-
ventional simony, which requires no fulfillment of the
simoniacal contract, is punishable, the only supposition
being that a simoniacal agreement existed. Suspicion of
heresy is founded on can. 727, § I,
I. Those, then, who have knowingly ordained any one,
as well as those who have been ordained through simony,
are suspect of heresy, and must consequently be treated
according to can. 2315.
Note that by ordo is also understood the first tonsure,
as per can. 950 and the Council of Trent-8 However,
the act must be complete, •*. e., the order must have been
P
2 Sec can. 2278, S 2; can. 3298, much as consulting the local or-
n. 2; 2227, 0 2; 2236, S 1: "dis- dinary.
pensaverii." * Vol. TV of this Commentary,
a Pius VI, "ChariUu," April 13, pp. 5 ff.
i7S"i 8 15: the civil constitution • Sess. si, & I, de ref.; the oldest
of the French Clergy; three bishops source u c. 8, C. 1, q. x, taken
had consecrated another without an from the Council of Chalccdon; see
Apostolic mandate, nay without as also c. i. X. V, 3.
\\C
Original fro ni
UNIVERSITY OF WISCONSIN
446 PENALTIES
St
conferred before the penalty is incurred, even though
the price agreed upon was not paid and perhaps never
will be paid, provided only an agreement was made.
Then, the act of simony must have been committed know-
ingly (scienter) as per can. 2229, § 2. If it was com-
mitted by a third person with the ordaining minister, but
the one ordained knew nothing of it, he would not fall
under this canon, even if simony was committed ac-
cording to can. 727.
2. Suspected of heresy are also those, bishops not ex-
cepted, who administer or receive other Sacraments
sintoniacally, supposing always that an agreement to that
effect has been entered into.
Purely mental simony, though it may be grievous, is
not intended by the Code. Thus it may happen that one
administers the Sacraments merely for the sake of the
stole fee; but as long as he does not make a formal
agreement or utter his intention in an unmistakable way,
with the other's consent, no simony in the sense of the
law is committed.
Bishops too, we said, are included ; for the position of
the clause at the beginning doubtless comprises them.
Is the scienter placed between ordines and promoverint
to be supplied in the ministraverintf We hardly think
so, because the position of the word makes it appear to
have reference only to orders. The reason probably is
because Orders are intended chiefly for the public
good and the welfare of society at large, and therefore
the legislator wished to spare prelates unnecessary
scruples.0 The other Sacraments are more or less of a
• Clement VIII, " Romanum of the severe penalties threatened
Pontificem decet," Feb. 28, 1595 by Sixtus V. "Sanctum et satutare,"
(Bull. Luxemburg.. III. 60): "ab Jan. 5. 1589, 9 6, I ■ (Butt, cit.,
ordinum eollaiione dttcrrtri," on II, 711 f).
account of scruples and the fear
►ogle
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2372 447
private character and, therefore, left to the uprightness
of individuals.
3. Clerics offending against this canon also incur sus-
pension reserved to the Apostolic See. Are bishops
included in this clause. Some deny,7 others assert it,8
There seems to be little doubt that they are. Can. 2227,
§ 2, cannot be quoted against this view, as bishops are
especially mentioned at the very beginning of this canon,
and, moreover, the Council of Trent subjected bishops to
all the penalties inflicted by law,9 and the papal consti-
tutions subjected them to the censure here mentioned.10
Lastly, it must be remembered that bishops are the
ministers of orders. There would be no justice, since
simony requires an accomplice, if the greater culprit
were less punishable than the simple cleric. The bishops,
therefore, according to our view, are also subject to
this suspension, which is a general one (can. 2278,
f §2).
RECEPTION OF ORDERS FROM CENSURED
p
ECCLESIASTICS
Can. 2372
Suspensionem a divinis, Sedi Apostolicae reser-
vatam, ipso facto contrahunt, qui recipere ordines
praesumunt ab excommunicato vel suspenso vel inter-
dicto post sententiam declaratoriam vel condernna-
toriam, aut a notorio apostata, haeretico, schismatico;
qui vero bona fide a quopiam eorum sit ordinatus, ex-
ercitio careat ordinis sic recepti donee dispensetur.
7 Thus Ayrinhac, /. c, p. 331. q. 1 ; c 4, C. 2, q. 5; cc 4, s» tti
without giving a reason. ij, X, V, 3.
B Thus Eichmann. /. c, p. 207. in Clement VIII (7. ftj modified
8 See cc. 6, 8, 101, 107, x 13, C. x. the Constitution of Sixtus V, but
left the censure.
oogle
v ,!,., Original fro ni
UNIVERSITY OF WISCONSIN
44«
PENALTIES
■
The older sources of this canon seem to be conflicting.
Some insinuate that the order received from bishops
mentioned in the text was invalid,1 whilst the majority
clearly state that it was valid, though illicit.2 Yet even
the former may be explained of the exercise of orders.1
Our text is taken in a somewhat modified form from the
" Apostolkae Sedis."*
I. Those who dare to receive Orders from an excom-
municated, suspended, of interdicted minister, provided
he has been declared such or condemned to one of the
three af ore-mentioned penalties, or from a notorious
apostate, a notorious heretic, or a notorious schismatic,
ipso facto incur suspension a divinis, reserved to the
Apostolic See.
That orders includes episcopal consecration, seems to
us evident from can. 950, even though the majority of au-
thors s does not maintain this view.
The penalties must have been declared, or must have
been incurred by a condemnatory sentence. Formerly a
nominal or personal denunciation was required.
Notoriety of fact is here intended (can. 2197, n. 3), not
of law, the latter not being required, as per can. 2314,
unless a declaratory sentence should be necessary in virtue
of can. 2223, § 4. But the term praesumunt also re-
quires full knowledge of the fact that the ordaining
minister was under censure, or had been condemned,
lC. 33. C. 34. q. H cc. 41, 73,
III, C. 1, q. 1; c. 24, C. it q. 7-
aC. 8, Dist 19; cc. .14. as. C. 1,
q. 7; c. 2, X, V, 8; this Utter
settles the former controversy.
8Kober, Die Suspension, p. 189;
Hollwcck, p. 295, note 1; D'Anni-
bulc, /. e., p. 119, n. 20s.
4 I V, 6: "Suspensionem ob ordine
xnscepto ipso iurt iniurrunt, qui
eundem ordinem recipere frae-
sumpscrunt ab excommunicato vtl
suspense, i<el interdieto, nominatim
denuntiato, out haeretico vet schis-
malico notorio: rum vero qui bona
fide a quopiam eorum est ordma-
tus, exercitium non habere ordinis
sir suieepti. donee dispensetur. de-
daramus."
a Hollwcck, I. c, p. 295, note 3.
ibyC >Ie
Original fro m
UNIVERSITY OF WISCONSIN
CANON 2373 449
or that he is a notorious apostate, heretic, or schis-
matic*
Besides, it is generally held that the order must have
been received validly, and therefore the penalty would
not follow if, for instance, a Protestant bishop would
confer an order.7 The penalty is suspension a divinis
(can. 2279, § 2, n. 2), excluding the exercise of any act
of the power of orders
2. Those who have been bona fide ordained by one
of the above-named persons forbidden by law to ad-
minister orders, may not exercise the orders thus re-
ceived, until they are dispensed. This dispensation
can be given by the Ordinary to whom the ordinatus
is subject." It is a vindictive penalty, but irregularity
would follow unlawful exercise of the Order thus re-
ceived.0
'-
ILLEGAL ORDINATION'
Can. 2373
In suspensionem per annum ab ordinum collatione
Sedi Apostolicae reservatam ipso facto incur runt;
i°. Qui contra praescriptum can. 955, alienum subdi-
tum sine Ordinarii proprii litteris dimissoriis ordina-
verint ;
20. Qui subditum proprium, qui alibi tanto tempore
moratus sit ut canonicum impedimentum contrahere
ibi potuerit, ordinaverint contra praescriptum can. 993,
n. 4, 994;
30. Qui aliquem ad ordines maiores sine titulo ca-
0 Mere hearsay or knowledge re- * Ibid, and Hollweck, /. c, p.
ceived from unofficial sources is sg6, note 7'. cc. I, 2, X, I, 13.
not sufficient. 9 Can. 985, n. 7.
T D'Annibalc, /. c.t p. ao6.
oogle
^|rt Original from
UNIVERSITY OF WISCONSIN
450 PENALTIES
nonico promoverint contra praescripturn can. 974, § i,
I n.7;
4°. Qui, salvo legitimo privilegio, religiosum, ad
familiam pcrtincntcm quae sit extra territorium ipsius
ordinantis, promoverint, etiam cum litteris dimis-
sorialibus proprii Superioris, nisi legitime probatum
fuerit aliquem e casibus occurxere, de quibus in can.
966.
This canon furnishes the proper sanction of the laws
laid down concerning the episcopus proprius (n. 1-2), the
canonical title (n. 3), and the competent Ordinary with
regard to religious. We may be permitted to refer the
reader to the canons mentioned.
Suspension from conferring orders for one year, to be
reckoned from the date of ordination and reserved to the
'Apostolic See, is ipso facto incurred
1. By those who ordain a subject of another Ordi-
nary without dimissorial letters from that Ordinary, as
per can. 955;
2. By those who ordain one of their own subjects, but
without testimonials from the Ordinaries in whose
dioceses the ordinand has lived long enough to contract a
canonical impediment, as prescribed by can. 993, n. 4,
and can. 994;
3. By those who confer major orders without a can-
onical title, as per can. 974, § 1, n. 7 (see also can. 980,
§ 2,3);
4. By those who ordain a religious who belongs to a re-
ligious family located outside of the ordaining minister's
territory, even though the aforesaid religious have
dimissorial letters from his own superior; unless the
certificate of the episcopal chancery proves that the case
was one admitted by can. 966 or the exempt religious
Q
jle
I , Original from
UNIVERSITY OF WISCONSIN
CANON 2374 45i
order has obtained a privilege permitting it to have its
subjects ordained by any bishop.
D
a
h
Br
ILLEGAL RECEPTION OF ORDERS
S
Can. 2374
■
Qui sine litteris vel cum falsis dimissoriis litteris,
vcl ante canonicam aetatem, vcl per saltum ad ordines
malitiose accesserit, est ipso facto a recepto ordine
suspensus; qui autem sine litteris testimonialibus vel
detentus aliqua censura, irregularitate aliove impedi-
mento, gravibus poenis secundum rerum adiuncta
puniatur.
I. Ipso facto suspended from the exercise of an
order (illegally) x received are those who maliciously
present3 themselves for Ordination
a) Without any dimissorial or with false dimissorial
letters (see can. 958). The term false letters includes
such as are forged, and consequently can. 2362 applies
here. But the term also means letters issued by incom-
petent authorities (can. 958). Thus the vicar-general
• needs a special commission and the vicar capitular or
administrator can issue them only after a year of
vacancy ;
b) Without having reached the canonical age, as per
can. 975, or not being duly dispensed from this im-
o
pediment ;
c) Without observing the order prescribed by can. 977
(ordinations per saltutn).
l The other orders, which the and could therefore be construed
cleric has received properly, he may as if the penalty were incurred,
exercise: see Trid., Sess. 6. c. s. even thouRh ordination did not
de ref,; Hollweck, L c, p. 297, n. 4. actually follow; however, the text
a Acccdcrc means to approach, refers to orders actually rteeived.
oogle
k ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
452 PENALTIES
2. Those who maliciously present themselves for ordi-
nation are to be punished grievously, according to the
circumstances of each case.
a) This class includes those who have not the required
testimonials (see can. 993-1001), or
b) who are under censure, be it excommunication, or
interdict, or suspension, or who are bound by an irregu-
larity of defect or crime (can. 984. 985), or by a can-
onical impediment (can. 987).
UNLAWFUL MIXED MARRIAGES
Can. 2375
■
Catholici qui matrimonium rnixtum, etsi validum,
sine Ecclesiae dispensatione inire ausi fuerint, ipso
facto ab actibus legitimis ecclesiasticis et Sacramenta-
libus exclusi manent, donee ab Ordinario dispensa-
tionein obtiituei int.
Catholics who dare to contract a mixed, even though
valid, marriage without ecclesiastical dispensation, are
ipso facto debarred from- legal ecclesiastical acts and
from the Sacraments, until they have obtained a dispen-
sation from the Ordinary,
1. Mixed religion constitutes a prohibitive impediment,
which does not invalidate a marriage, but requires a dis-
pensation to make it licit
2. If the form prescribed in canons 1094 and 1099 has
been omitted, the marriage is invalid.
3. Can. 1098 permits the full form to be omitted when
there is danger of death or when the pastor, or Ordinary,
or a delegate, cannot be reached.
The ausi fuerint is verified if the Catholic party, know-
sd by GoOgle
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2375
453
ing that a dispensation is necessary and possessing the
necessary means of communicating with the ecclesiastical
authorities, neglects to ask for the dispensation. De-
ception of the pastor or assisting priest is possible, though
not likely to occur, except in cases of elopement.
4. Such parties, provided they give signs of true re-
pentance and accept the required conditions, may be ad-
mitted to the Sacraments1;
5. But they are excluded from the ecclesiastical acts
enumerated in can. 2256, n. 2.
6. This penalty lasts until the Ordinary dispenses from
it, because it is a vindictive penalty, and dispensation
here refers to the penalty, not to the impediment of
mixed religion. Besides, no dispensation is required
after the marriage is contracted,*
lS. O., Aug. 23, 1877; Feb. io,
189.J {Coll. P. F„ on. 1478, 1783).
2 See Vol. V of this Commen-
tary, p. 159. We may be permitted
to say a word here in defenie of
thii volume against a review of
the Mine in the October number of
the Irish Thtologicat Quarterly.
We regret to aay that the critic does
not appear to be competent, having
betrayed aia incompetency in
reviewing oar first volume by put-
ting a synodal decree on the noe
level with the Code. Besides mere
platitudes and general aspersions,
we believe, should be avoided by a
conacientious critic. There are,
aa a well-known professor in Rome
used to say, when he was attacked
by some writers, "6cm tin, ltd non
tcntntur scribcrt."
gle
Original from
UNIVERSITY OF WISCONSIN
TITLE XVII
VIOLATION OF THE OBLIGATIONS PROPER
TO THE CLERICAL OR RELIGIOUS STATE
Under this heading fall the obligations mentioned in
Book II, which determines the duties of the clerical state
as such (Title III) and of the religious state in particular
(Title XIII, Ch. i). But it must be understood that
the obligations peculiar to the clerical state arc also in-
cumbent on religious who belong to the clerical state,
unless the wording makes it plain that religious are not
comprehended. This shall be indicated under each
canon.
REFUSAL TO MAKE EXAMINATIONS
Can. 2376
Sacerdotes qui neque ab Ordinario dispensati neque
legitimo impedimento detenti examen de quo in can.
130 facere renuerint, ab Ordinario congruis poenis ad
illud cogantur.
Priests who, witliout a dispensation from the Ordinary
or a lazvful impediment, refuse to make the examination
required by can. 130, shall be compelled by suitable pen-
alties to do so.
1. The above-quoted canon* 130 requires yearly exam-
ination for a term of three years after the completion of
a priest's theological studies.
454
§le
, ,1,., Original fro rn
UNIVERSITY OF WISCONSIN
CANON 2376-2377 455
2. All secular priests, even though they have obtained a
parochial office or a canonicate, must submit to this ex-
amination, unless they are exempted from it by the Ordi-
nary. Religious are not bound by this canon, but by
can. 590.
3. To refuse is a positive act (facere rcnucrint), al-
though mere failure to appear at the examination would
amount practically to the same thing, provided the time
and matter of examination had been duly appointed and
made known. In case of a lawful impediment, the
Ordinary or the diocesan chancery must be notified,
which may be done through the rural dean.
4. The penalty is arbitrary but preceptive (can. 2223).
Except in case of protracted stubbornness, censures
should not be used (can. 2241, § 2).
STUBBORN ABSENCE FROM PASTORAL CONFERENCES
Can. 2377
Saccrdotcs contra praescriptum can. 131, § x con-
tumaces, Ord inanus pro suo prudenti arbitrio puniat;
quod si fuerint religiosi confessarii curam animarum
non gerentes, cos ab audiendis saecularium confes-
sionibus suspendat
This canon embodies the sanction for can. 131, which
relates to the pastoral conferences that are to be held
several times a year. At these all secular priests as
well as all religious who have charge of souls should be
present, and also those other religious who hold faculties
for hearing confessions in the diocese, provided no such
conferences are held in their monasteries or convents,
according to can. 591. Therefore the local Ordinary is
G i Original from
OOglL UNIVERSITY QFWI5C0NSIN
456 PENALTIES
entitled to know of this fact, even in exempt monasteries,
unless a special privilege exempts them from attendance
at the diocesan conferences.1
1. Priests toha resist the law laid down in can. ijt, § /,
should be punished by the Ordinary according to his
good judgment. The name saecrdotcs here includes re-
ligious who are in charge of souls, whether as pastors
or assistants (curates). These also may, therefore, be
punished according to can. 616, § 2. But contumacy
must precede, and this supposes a canonical, not merely
a paternal, warning (can. 2307). Although such a warn-
ing is to be given to all who are engaged as pastors,
curates, or confessors, yet, says one decision, against
secular priests who have no such charge, the bishop
should proceed with exhortations and admonitions rather
than with penalties.*
2. Religious who, though not in charge of souls, are
confessors of Sisters or transient helpers in the con-
fessional must, in case of contumacy, be suspended from
hearing confessions, provided, of course, no pastoral
conferences are held at their religious house.
SBRIOUS NEGLECT OF RITES AND CEREMONIES
Can. 2378
Clcrici maiores qui in sacro ministerio ritus et
caeremonias ab Ecclesia praescriptas graviter negli-
gant et moniti sese non emendaverint, suspendantur
pro. diversa reatus gravitate.
1 Regulars who neither have 13, 1593 (Regesta, fol. a6s *, fol.
charge of souls nor enjoy ihc usual 3oo*)i implied in can. 131.
faculties, cannot be compelled to 2 S. C EE. et RR., Aug. a, 1594
attend diocesan conferences; S. C. {Rtgesta, fol. 224 •).
EE, et RR. Aug. 23, I5D3I Oct
oogle
k .J,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2378
457
Clerics in higher orders who in the sacred ministry
grievously neglect the rites and ceremonies prescribed
by the Church, and, when admonished, do not amend
their ways, should be suspended according to the
seriousness of their guilt.
1. The books which contain the rites and ceremonies
of the Church are the Roman Ritual, the Missal, the
Pontifical, and the rules governing these rites are called
rubrics, of which mention is made elsewhere.1 The
rubrics here especially intended are those governing the
administration of the Sacraments and sacramentals as
well as the celebration of Holy Mass.2
2. The grievousness of the offence is to be gauged by
the importance of the rubrics, the scandal given, and the
duration of the neglect. Rural deans are called upon to
watch over the pastors of their districts and the pastors
over their assistants.*
3. In proceeding against offenders, the Ordinary must
first issue a canonical warning according to can. 2307
and then await amendment within the term stated.
4. If no amendment follows, suspension must be
inflicted, and it may be either total or partial, for a def-
inite or an indefinite time, either as a censure or a vin-
dictive penalty.*
1 See Vol. IV of this Commen-
tary, P- 157-
I See can. 755-76' ; 814-819; 945-
947; 1002-1004; 1148.
a Can. 447. I >. "• 41 476, 5 7;
concerning chapters can. 415, I 3,
n. a. This, of course, does not
mean that CTcry new rubric must
at once be applied and insisted
upon, as if the salvation of souls
depended on a Talroudic observance
of rites.
*Sec can. 1933, fi 4; 2*78, f.;
2298, n. 2.
oogle
Original from
UNIVERSITY OF WISCONSIN
458 PENALTIES
REFUSAL TO WEAR THE CLERICAL DRESS
Can. 2379
Clerici. contra praescriptum can. 136, habitum
ecclcsiasticum et tonsuram clcricalem non gestantes,
graviter moneantur; transacto inutiliter mense a mo-
nitione, quod ad clericos minores attinet, servetur prae-
scriptum eiusdem can. 136, § 3; clerici autem maiores,
salvo praescripto can. 188, n. 7, ab ordinibus reccptis
suspendantur, ct si ad vitac genus a statu clcricali
alienum notorie transierint, nee, rursus moniti, re-
sipuerint, post tres menses ab hac ultima monitione
deponantur.
/»
The clerical dress spoken of in can. 136 is the one
usually worn by clergymen. It differs in different
countries. Everyone knows the habit and usage of our
country, except perhaps foreigners.1
The present canon may be said to contain three clauses :
one applying to clerics in general, the second to clerics
in minor orders, the third to clerics in major orders.
1. Clerics who do not wear the clerical dress and
tonsure, as prescribed by can. 136, are to be seriously
warned; which means that a formal admonition must
be addressed to them according to can. 2143 and 2307,
and put on record,
2. As to clerics in minor orders, can. 136, § 3 says
that they are ipso facto reduced to the lay state if the
canonical warning just mentioned is unheeded for one
a
■j:
"-.
l Tbus we lately heard of a for- our country in cassock and prc-
eign bishop who travelled through latial colors.
ioi >gle
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2379 459
month (30 days). Therefore such clerics lose the
clerical rank and its privileges without a formal sen-
tence. However, we believe that, since the public
■welfare8 is here concerned, a declaratory sentence, ac-
cording to can. 2223, § 4, should be issued.
3. Clerics in higher orders should be dealt with as
follows :
a) If they do not put on clerical dress within a month
from the date of the canonical warning, their office be-
comes vacant without any further declaration, just as if
they had resigned, — provided, of course, they hold an
office — and they must, besides, be suspended from the
orders which they have already received.
b) If, besides refusing to wear the clerical dress and
letting the canonical warning go unheeded, they noto-
riously take up a mode of life not compatible with the
clerical state, they must again be warned. If this second
canonical warning also goes unheeded, they must be de-
posed after the third month (or 90 days), to be reckoned
from the day of the last warning.
A state or vocation erf life not becoming the clerical
character would be one of those mentioned under can. 139,
141, 142 (store or saloon-keeper, etc.). However, the
fact of the cleric's having embraced this state must be
notorious, •". e., notorietate facti, which supposes a knowl-
edge of the higher clerical state.
The penalty for clerics in minor orders is latae sen-
tentiac, whereas those for clerics in major orders are
ferendae sententiae. Consequently, if a cleric has never
been suspended or deposed, even though he may have
S Because of the public character of the clergy and of the clerical
privilege!.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
46o PENALTIES
been for several years a public teacher, unknown to the
people as a priest, no absolution or dispensation is re-
quired.3
Discarding the clerical dress does not ipso facto en-
tail a censure for clerics in higher orders. The penalty
is prescriptive, which is to be understood according to
can. 2223.
Although this canon does not strictly apply to reli-
gious who wear a habit of their own, yet the Ordinary
may, under can. 616, § 2, proceed also against religious
who neglect to wear the clerical dress customary in their
country.
TRADING FORBIDDEN TO CLERICS
Can. 2380
Clerici vel religiosi mercaturam vel negotiationem
per se aut per alios exercentes contra praescriptum
can. 142, congruis poenis pro gravitate culpae ab Ordi-
nal io coerceantur.
Clerics or religious who, contrary to can. 142, practice
a trade or engage in business, either by themselves or
through the medium of others, shall be punished by the
Ordinary according to tlxe gravity of their guilt.
To what we have said elsewhere1 on this subject only
a few remarks need be added here. The subject is
really important, affecting as it does the entire clerical-
religious state, and *' notions n or consciences sometimes
seem to be very much obscured. Negotiatio is generally
denned as " the act of buying things with the intention of
a We were informed of such a i Vol. II of tbis Commentary,
case by a late friend of ours. p. 95 ft-
p
jle
( * ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 2380 461
selling them unchanged for a higher price." a Thus buy-
ing land with the^ole view of selling it again, is trading;
buying shares in mines, railroads, oil, cotton, etc., and
selling them at a higher price is styled trading, or in
common parlance, at least in the U. S., speculating or
even gambling. Buying prayer-books or devotional
articles from a firm in order to sell them with profit to
pupils or parishioners is trading. The same must be
said of books, magazines, calendars, typewriters, etc. All
that we can justify in the sale of such articles is that the
priest, religious, or religious house may add the additional
expense of freight, express or an eventual risk of storage,
but nothing more. Religious houses, especially those
chartered as benevolent corporations, are not allowed to
undertake financial operations.
i. The penalties established by the Constitutions of
Urban VTTI, "Ex debito," Feb. 22, 1633, and Clement
IX, " Solicitudo," June 17, i66q, against trading
by missionaries either in or outside of Europe, and which
were maintained even after the " Apostolicae Sedis"
(1869),3 are now destitute of legal force, as per can. 6,
n. 5.
2. But the declaration given by Benedict XIV,
("Apostolicae servitutis commissum" Feb., 25, 1741)
remains in force. This declaration says that trading
by commission (alteno nomine) is forbidden. Hence a
cleric may not furnish money to, or hire a layman to trade
or traffic for him. To do so would be an evasion of the
law or a deception. If family affairs or an inheritance
compel a cleric to engage in business against his will,
the bishop may grant him permission to continue in
2 Werar, Ins Decret., II, n. 216 {Coll., nn. 1398, 1589).
(1st cd., Vol. II, p. 3'°); also Santi- 8 S. O., Dec: 4, 1872; Jan. 17,
Leitner, Deeret. I. III. tit. So, n. 3. 1883; S. C. P. F.. March 29, 1873
>Ic
Original fro m
UNIVERSITY OF WISCONSIN
-
'.■-.
462 PENALTIES
business for a short time, provided a layman acts as the
actual administrator and manager (/. c, § 2).
3. The penalty, though preceptive, is arbitrary, but
its arbitrary character is somewhat modified by the gravity
of the guilt, which is diminished if there is need of
temporary support, or if, as stated above, family relations
require such conduct. Although deposition and other
severe penalties of former laws4 should not be employed,
yet suspension in more stubborn cases would not ex-
ceed the bishop's power.
VIOLATION OF THE LAW OF RESIDENCE
D
U
Can. 2381
Qui ofBcium, beneficium, dignitatem obtinet cum
onere residential si il legitime absit:
i°. £0 ipso privatur omnibus fructibus sui beneficii
vel officii pro rata illegitimae absentiae, eosque tra-
dere debet Ordinario, qui ecclesiae vel alicui pio loco
vel pauper ibus distribuat;
a°. Officio, beneficio, dignitate privctur, ad normam
can. 2168-2175.
Those who hold an office, a benefice, or a dignity which
obliges them to residence, are, if they unlawfully absent
themselves :
■
I. Ipso facto deprived of the revenues of their
office or benefice in proportion to the duration of their
unlawful absence, and these revenues, which are of the
nature of a fine or vindictive penalty, must be handed
over to the Ordinary, who shall distribute them to
churches or charitable institutions, or to the poor;
4 Sec cc. a, 3, Diat. 88, c. i, Clem. Ill, t, for filth/ lucre's sake.
oogle
, ,|,, Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2381 463
2. They sliall be deprived of their office, benefice, dig-
nity, according to the rules laid down in canons 2168-
2175.
We need not again enter into the subject of residence,1
but merely note that the bisliops are not affected by
this canon, for the reason stated in can. 338, § 4, where
the metropolitan is called upon to report negligent bishops
to the Apostolic See.
Who, then, are the dignitaries referred to in this
canon ? The cathedral and collegiate dignitaries, and none
other. Not the prelates nullius or abbots nullius, because
they too must choose a metropolitan and have the same
obligations as the bishops a ; nor the vicars or prefects
Apostolic, for they are subject to the Apostolic See.3
Nor religious superiors, for the vow of poverty prevents
their assuming any dignities.
Are dignitaries who fail to observe the law of residence
bound to give up the revenues received or due during
their unlawful absence? Official Roman decisions clearly
indicate that they are obliged to make restitution and that
the Ordinary may proceed against them according to law.*
The bishops or Ordinaries obliged to residence, on the
other hand, are not bound to surrender the revenues pro
rata absentiae, because the text distinctly says that these
must be handed to the Ordinary. Therefore deliverer
and recipient would be the same person. The Apostolic
See shall therefore state what is to be done. As to n. 2f
we refer the reader to the canons quoted.
1 See Vol. II of our Commen- (Richter, Trid., p. 358, n. 71 f .) ;
tary, p. 98 f.; p. 358 ff.; p. 545 *• the procedure against non-resident
a See can. »8s: can. 333. canons, S. C. C, Y trail., 1573
a See can. 301. (ib., n. 71).
«S. C. Cm Cothac., Nov. 14, 1671
oogle
Original from
UNIVERSITY OF WISCONSIN
464 PENALTIES
NEGLECT OF PASTORAL DUTIES
Can. 2382
Si parochus graviter neglexerit Sacramentorum ad-
ministrationem, infirmorum assistentiam, puerorum
populique institutionem, concionem diebus dominicis
cctcrisque festis, custodiam ecclesiae paroecialis,
sanctissimae Eucharistiae, sacrorum oleorum, ab Ordi-
nario coercctur ad normam can. 2182-2185.
If a pastor grievously neglects the following duties,
the Ordinary must proceed against him according to can.
2182-2185:
1. The administration of the Sacraments, as per can.
1 4<37> § * ;
2. Skk calls, as stated in can. 46$, § 1 ;
3. Religious instruction for children and people, as per
canons 1329- 1336;
4. Preaching on Sundays and holydays of obligation,
as per can. 1344;
5. The custody of the parish church, as per can, 1178;
6. The custody of the Holy Eucharist and the holy
oils, as per canons 1 265-1275 and can. 735.
CARELESSNESS IN KEEPING THE PARISH BOOKS
Can. 2383
Parochus qui paroeciales libros diligenter, ad nor-
mam iuris, non conscripserit aut servaverit, a proprio
Ordinario pro gravitate culpae puniatur.
Pastors who are careless in keeping records and pre-
jte
I , Original from
UNIVERSITY OF WISCONSIN
CANON 2383 465
serving tlu parish books, as prescribed by law, shall be
punished by their own Ordinary according to the gravity
of their fault.
The books here mainly, though not exclusively, in-
tended are:
1. The Baptismal Book, which must be kept according
to can. 470 and canons 776-778. It should, besides the
entry, contain four vacant columns for recording (a)
confirmation, (b) marriage, except the marriage of con-
science (can. 1107), (c) subdeaconship and (d) solemn
profession, — the two latter on account of their being
matrimonial impediments,
2. The Confirmation Book, to be kept according to can-
ons 798-799.
3. The Matrimonial Book, to be kept according to can.
1 103, but omitting the marriage of conscience (can.
1 107) though not omitting the record of an eventual
declaration of its nullity (as per can. 1988).
4. The Obituary Book, to be kept according to can.
1238. This is the norma iuris mentioned here, as well
as in the Roman Ritual (Tit. x, c. 2). But can. 470,
§ 1 also demands a record of the census, or status
animarum, which should be made as carefully as possible.
Is the pastor obliged to keep all these books personally?
There is no doubt that he is responsible personally and
sub gravi for these books. But this does not solve the
question asked. Our answer would be as follows ;
Since a man may do through another what he can do
himself,1 a pastor may have the records kept by another.
If the pastor were impeded, either by sickness, or
absence, or by reason of a very poor handwriting, he
certainly could entrust this work to others. Therefore
iRtf. Juris 68 et 71 im 6°.
ogle
Original from
UNIVERSITY OF WISCONSIN
466 PENALTIES
we cannot see why it should be wrong to entrust the
assistant or curate with this task.
Another obligation is that of properly preserving the
books mentioned (can. 470, § 4).
The penalty is arbitrary, but preceptive. The Ordi-
nary, says a decision, may proceed with canonical pen-
alties, which means that either censures or vindictive
penalties may be employed if necessary.2 The time of the
canonical visitation offers a good opportunity for in-
specting these books.8
NEGLIGENCE OS THE PART OF THE CANONICUS
THE0LOGUS AND POENITENTIARIUS
Can. 2384
Canonicurn theologum et poenitentiarium in suis
muneribus obeundis negligentes, Episcopus gradatim
compellat monitionibus, cornrninatione poenarum, sub-
tractione portionis fructuum iis assignandae qui
illorum vices suppleant; et perdurante per integrum
annum negligentia post monitionem, suspensione a
beneficio plectat; negligentia vero producta per aliud
scrncstre, ipso beneficio privet.
If the canonkus theologus or the canonicus poeni-
tentiarius should neglect their duties (see can. 308-401),
the bishop shall proceed as follows:
I, He shall serve them with a canonical warning (see
canons 2143 and 2307), which may contain a threat of
penalties, and then, if this warning goes unheeded, he
may deprive them of part of their revenues and give them
a S. C. Sacrament.. March 6, » Bcncd. XIV, "Firmandis," Nov.
19x1, nn. II ct IV (A. Ap. S., 6, 1744. 5 9» «°.
Ill, 103 f.).
jte
% ,1,., Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2385 467
to those who take the place1 of the neglectful priests.
2. If they continue their negligence for one year after
tliis canonical warning they shall be suspended from
their benefice (see can. 2280).
3. If their negligence is protracted for another six
months, ♦". e.t for eighteen months altogether from the
date of the canonical warning, they shall be deprived of
their respective benefices.
APOSTATES A RELIGIONE
Can. 2385
Firmo praescripto can. 646, religiosus, apostata a
religione, ipso hire incurrit in excomrnunicationem,
proprio Superiori vel, si religio sit laicalis aut non ex-
empts, Ordinario loci in quo commoratur, reservatam,
ab actibus legitimis ecclesiasticis est exclusus, pri-
vikgiis omnibus suae religionis privatus ; et si redierit,
pcrpctuo caret voce activa et passiva, ac praeterea
aliis poenis pro gravitate culpae a Superioribus puniri
debet ad normam constitutionum.
Apostates a religione are those who, having made pro-
fession of perpetual vows, whether solemn or simple, un-
lawfully leave the religious house with the intention of
not returning, or who, having lawfully left the house,
do not return to it, with the intention of withdrawing
themselves from religious obedience. A perverse inten-
tion is presumed after a month of unlawful and un-
justified absence (can. 644).
Apostates in another sense are those who publicly deny
XThe place of a cancnicus theo- a religious priest; S. C. C, April
logus may, in this case, be assigned «7. '°3o (Richter, Trid., p. 19,
by the bishop to either a secular or n. 39) .
oogle
Original fro m
UNIVERSITY OF WISCONSIN
468 PENALTIES
St
the Catholic faith, -clerics who elope with a person of the
opposite sex, or who attempt marriage (can. 646).
There is no doubt ihat those also must be considered
apostates who transfer themselves to another religious
institute, 9. c, another religious order or congregation,
without the necessary dispensation.1 The superior of
the institute to which a religious of another order or con-
gregation has repaired, is obliged to make him return
to his own institute or, at least, to notify his lawful
superior.2
It may be asked whether religious who leave their
own convent and without due permission transfer them-
selves to a monastery or convent of the same order, must
be considered apostates. The constitution of Paul IV
answers in the affirmative,8 for the text * extra claustra
suorum regularium locorum drgunt" (to live outside
their own regular convents) can mean nothing else but
that those religious who leave the convent of their pro-
fession without the necessary permission are considered
apostates. However, we believe that a distinction must
now be made between centralized and non-centralized
orders, of which latter the Benedictines furnish an ex-
ample. For the essence of apostasy, as the term implies,
is desertion or defection from the religious state one has
chosen by perpetual vows, and subsequent withdrawal
from the obedience due to one's legitimate superior.
Centralized orders have a central or supreme superior
who represents the entire institute. Profession is made
in these centralized orders, not for a certain house, but
for the province or order, which depends on their Con-
■
lPaul IV, " Postquam," Jul> so, held a benefice, i. #., a piriih or
1558, I 8 (Bull. Luremb., I, 834)- office of their own order without
2S. C. EE. ct RR., Aug. 11, the necessary permission, were con-
1758 (Bixzarri. I. c, p. 330). lidered apostatei; ibid.
%L. c.r I 1, a; even those who
jle
% .,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2385 469
stitutions.4 The consequence is that one may transfer
himself from one monastery to another, and still re-
main under the same higher superior, and hence he does
not violate the vow of obedience. This is clearly ex-
pressed in can, 633. The same canon, however, requires
an Apostolic indult for a transfer from one independent
monastery to another independent monastery, even
though it be of Ihe same (so-called) order. Here we
have a clear indication of the distinction between various
organizations.
The consequence is that unlawful desertion of an
autonomous monastery, even though the deserter repairs
to another one of the same order or congregation, con-
stitutes apostasy, if the other marks concur. With re-
gard to Benedictine congregations much, of course, de-
pends on whether the subjects of single monasteries pro-
nounce their profession for the congregation as such, or
for the individual house. If profession is made for an
individual religious house, apostasy is verified in case of
illegitimate desertion of that house, even if the deserter
would straightway repair to another house of the
same congregation. As stated elsewhere,5 no apostasy
or flight would be implied if a religious would seek re-
dress with the Provincial or President or General in case
of unjust vexation or manifestly unjust condemnation.
Our canon first states that can. 646 remains in force,
and therefore those mentioned therein must be con-
sidered apostates. Then it lays down the penalties for
apostates from religious institutes, as follows :
1. They ipso facto incur excommunication, which is
reserved
4 Also on papal privileges; Lez- 0 Sec Vol. Ill of this Commen-
«ana, .Sum mo Quacstionum Regular- tary, pp. 38a f. ; Lcuaua, /. c, p.
ium, Venet., 1637, p. 187, n. xi. x8S, a. 8.
gle
Original fro ni
UNIVERSITY OF WISCONSIN
470 PENALTIES
a) To their own higfier superior, according to can. 488,
n. 8, ♦. e., to the abbot of the monastery, or to the superior
general or provincial, or their equals in power, if the
apostate is a member of a clerical exempt institute;
b) Or to the local Ordinary in whose diocese the
apostate is stationed, if he is a member* of a lay or non-
exempt organizatioa
From this censure only the exempt religious superior,
or the Pope, or the delegate or successor of the religious
superior, can validly absolve, according to can. 2245,
Can, 519 cannot here be applied, for this censure is not
merely one reserved by or in the religious institute, but
reserved by common law to the religious superior.
Under can. 2340, the apostate, if he obstinately re-
mains under censure for one year, becomes suspect of
heresy and must he treated as such according to can.
2315. This may be a case of censure reserved to the
local Ordinary, if the apostate belongs to a lay or non-
exempt religious congregation, either papal or diocesan,
male or female. The vicar general is competent to ab-
solve from this censure even without a special com-
mission (can. 198).
2. Such apostates are furthermore debarred ipso facto
from all legitimate ecclesiastical acts, according to can.
^256, n. 2.
3. They are, moreover, ipso facto deprived of all the
privileges granted to their order or congregation, but not
of the privileges of the clerical state.
4. If they return, they remain forever deprived of the
active and passive vote, and therefore cannot licitly 6
vote or be candidates for any elective office. If such a
one is desired for an office, he can not be elected, but
<
8 See can, 167.
jle
C* -. ^ tl » Original from
UNIVERSITY OF WISCONSIN
CANON 2386 471
must be postulated, according to can. 179, and in the
petition the reason would have to be stated. If a dis-
pensation were granted, we think it would also restore
the right to the active vote.
5. They must, in proportion to the seriousness of the
case or the gravity of their offence, be punished ivith other
penalties by their superiors, who are in this case bound
by the constitutions. A decree of the S. Congregation
of the Council 7 admonishes bishops to seek out such
unfortunates and return them to their superiors, and
exhorts the latter to receive them with paternal kind-
ness.
Fortmrly such apostates had to do public penance,
were excommunicated and forbidden to exercise any
clerical office. If a monk received any sacred order
during the time of his apostasy, he needed an Apostolic
dispensation to exercise its functions.8 A peculiar pen-
alty was decreed by Paul IV: apostates from any order
or congregation had to wear a black biretta with two
white stripes running archind its whole circumference.8
But this was abolished by Pius IV.10
It may be added that a religious institute cannot be
field responsible for debts contracted by apostate or
fugitive religious.11
FUGITIVE RELIGIOUS
Can. 2386
Religiosus fugitivus ipso facto incurrit in priva-
tionem officii, si quod in religione habeat, et in sus-
:Sept. 2\, 1624. 8 4, 5 (Richter, • " Pcstquam," July ao, 1558. ft
Trid., p. 433. n- »*>. 6-
■ Cc. i-j, C ao, q. 31 c 69, 10*' Sedit Apostolicae," April 3,
Di»t. 50; c 6, X, V, 9. 1560, 6 3.
11 Lczxana, /. c, n. 19; cm, 536.
oogle
Original fro m
UNIVERSITY OF WISCONSIN
472 PENALTIES
pensionem proprio Supcriori maiori reservatam, si sit
in sacris ; cum autem redierit, puniatur secundum con-
stitutiones, et si constitutiones nihil dc hoc caveant,
Superior maior pro gravitate culpae poenas infligat.
Fugitive religious, according to can. 644, § 3 are such
as leave a religious house without the permission of their
superior, but with the intention of returning. It does
not matter whether such a one leaves with or without
the religious habit.1 The difference between apostasy
and flight consists in the intention.
I. A fugitive religious ipso facto
a) Loses any office he may hold in his institute, whether
that office be high or low. Hence a higher superior, a
conventual prior or prioress, an assistant, procurator,
or procuratrix, porter or portress, those who hold a
pastoral office in the name of their organization, i, e., a
parish fully incorporated into the monastery (not a
secular benefice or office) — all lose their office if they
withdraw from obedience.
b) If the fugitive is a cleric in higher orders, he
incurs suspension reserved to the major superior of the
institute (can. 488, n. 8).
Note that these penalties are latae sententiae and,
therefore, per se, require a declaratory sentence only
under the circumstances mentioned in can. 2223,
§4.
a
1 S. C. C, Sept. ax, Kfofc I 4 III. c i. ed. Paris., i860, t. XV).
(/. c); Lezxana, /. e., p. 188, n. 7. p. 378). However, if they with-
Whetfaer the flight is accomplished draw from the obedience due to
by day or by night is immaterial. their superiors for more than one
If r.xfoxiti. »'. t., religious who hold month, they would have to be con-
an office outside the religious house, sidered apostates. In this case the
leave their post or trust, ihey can- essential point is withdrawal from
not strictly be called fugitives. obedience.
(Suarta, D* Relig., tr. VIII, L
od by GoOgle
I , Original from
UNIVERSITY OF WISCONSIN
-'
CANON 2387 473
The suspension here understood is the general one of
can. 2278, § 2.
2. In case of the fugitive's return, he shall be punished
according to the respective constitutions, and if these
contain nothing on the matter, the major superiors shall
inflict fit penalties in proportion to the graiuity of the
fault. Here, too, it must be observed that local Ordi-
naries and religious superiors should strive to bring
fugitives back to their religious houses.2
Both canons 2385 and 2386 suppose a return, and dis-
tinguish two kinds of penalties : a severer one for the
act itself, and a milder one after the culprit's return.
Does the penalty established for the mere act of apostasy
or flight cease after the culprit's return? By no means.
For censures cannot be removed except by absolution,
and vindictive penalties are removed only by dispensa-
tion. Both, however, should be imparted soon after the
culprit's return, whilst the other penalties, which are pre-
ceptive, are to be inflicted according to the constitutions
or the prudent judgment of the superior, who, however,
is not at liberty to let the culprit go entirely unpunished,
because penal measures are intended for the public
welfare and the protection of discipline.
PROFESSION VOID BV REASON OF DECEIT
Can, 2387
Religiosus clericus cuius professio ob admissum ab
ipso dolum nulla fuerit declarata, si sit in minoribus
ordinibus constitutus, e statu clerical! abiiciatur ; si in
maioribus, ipso facto suspensus manet, donee Sedi
Apostolicae aliter visum fuerit.
2 S. C C, Sept. 31, 1634, I 4 (L e.)
ogle
v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
474 PENALTIES
A profession may he invalid for any one of the reasons
stated in can. 542, n. 1. Besides, can. 572, § 1, n. 4. ex-
pressly states that dolus * (fraud or deceit) on the part of
the candidate invalidates a religious profession.. There-
fore, if a candidate deliberately concealed any of the
reasons stated in can. 542, n. 1, his profession would be
invalid. The respective constitutions may also contain
an invalidating impediment, for instance, a certain disease,
especially of an incurable kind, like consumption, epilepsy,
etc. If the religious is afflicted with such a defect and
conceals it, his profession is invalid-2 The declaration of
nullity, in the last instance, belongs to the S. Congrega-
tion of Religious.
A religious whose profession has been declared nidi
and void on account of deceit admitted by him shall
be pwnislied as follows:
1. If he is a cleric with minor orders, he is to be cast
out from the clerical state, but he may be readmitted as a
lay brother, provided he repeats the novitiate and makes
a new profession. This penalty is fcrendae sententiac,
and, therefore, requires a trial and a condemnatory or
declaratory sentence, after the fact is verified.
2. If he is a cleric in higher orders, he is ipso facto
suspended until the Apostolic See shall liavc made pro-
vision for him. The Pontifical Commission for the
Interpretation of the Code has decided that canons 2386,
2387, and 2389 must also be applied to delinquent mem-
bers of roligious associations (can. 673), provided they
lead a life in common and are of clerical rank.*
■
1 "Dolus Proprie sumptns iffl- i. e., no material damage, at least
portal iniuriam in decipiendo, et error or ignorance, which in itself
effeelum sen damnum illatum Per is an evil.
taUm iniuriam, tt» trrortm ten a S. C. C, July 6, 17^6 (Ricbter,
ignorantiam " ; Suarez De I'oto, tx. Trid., p. 426 ff. n. 14).
VI, 1. I, c. 11, n. 4 (t. XIV, 793)- a June 2-3, 191*1 n. VI {A. Ap.
It it the injury caused by deceit S„ X, 347).
which produces, if nothing else.
Q
'-
ogle
f* ^ 1 -Ar* Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2388 475
MARRIAGE ATTEMPTED BY CLERICS AND RELIGIOUS
Can. 2388
■ § i. Clerici in sacris constituti vel regulares aut
moniales post votum sollemne castitatis, itemque
omnes cum aliqua ex praedictis personis matrimonium
etiam civiliter tantum contrahere praesumentes, incur-
runt in excommunicationem latac sententiae Sedi
Apostolicac simpliciter rcservatam; clerici praeterea,
si moniti, tempore ab Ordinario pro adiunctorum
diversitate pracfinito, non resipuerint, degradentury
firmo praescripto can. 188, n. 5.
§ 2. Quod si sint professi votorum simplicium per-
petuorum tarn in Ordinibus quam in Congregationibus
religiosis, omnesf ut supra, excommunicatio tenet
latae sententiae Ordinario reservata.
By ecclesiastical law clerics m higher orders, 1. e.*
from subdeaconship onward, and regulars or nuns with
solemn vows, cannot validly contract an ecclesiastical
marriage,1 and the Church consequently looks upon such
marriages as mere "attempts." There must be a
genuine attempt at matrimony to incur the penalty stated
in this canon; mere concubinage is not sufficient A
valid marriage presupposes mutual consent, a certain
form, and freedom from diriment impediments. There
is only one form, vis.: marriage before a Catholic minister
and at least two witnesses, which Catholics are obliged to
observe under pain of nullity.2 Therefore, if they
l We say: an ecclesiastical mar- See canons 1072 and 1073; this
riage, because the civil law, in moat Commentary, Vol. V, pp. 187 ft",
countries, docs not debar them 2 See can. 1094, 1099.
from contracting a civil marriage.
Go >gle
Original from
UNIVERSITY OF WISCONSIN
476 PENALTIES
would contract marriage before a non-Catholic minister
it would be null and void by reason of lack of the pre-
scribed form. Yet even in that case the censure would
not be incurred, for it would be a species of civil mar-
riage,3 which is possible in our country, because non-
-
Catholic ministers can and do perform the ceremony in
the name of the law. Another possibility of complying
with the form would be that mentioned in can. 1098.
Besides, it might happen that the Catholic minister would
be deceived. Otherwise the probability of clerics observ-
ing the required form would be exceedingly small.
The consent must be given internally as well as ex-
ternally, and is generally presumed after puberty.4 The
question arises : May this consent coexist together with
the knowledge or belief that the marriage will be void?
For instance, if the contracting parties would, besides
the impediment of sacred orders (celibacy) or vow,
suffer from affinity or consanguinity, could they have
real consent? The Code (can. 1085) expressly states the
affirmative. The censure, therefore, would be incurred
even under this knowledge of nullity,5 provided it was
directed to a matrimonial relation, and not merely to a
concubinage.
It may also be asked whether the censure would be
incurred if the marriage were null and void, not from
a mere diriment impediment, but also from lack of cotP-
sent. D'Annibale0 and others deny that the censure
would follow such a fictitiously attempted marriage.
This opinion is acceptable because consent is no doubt
the essential element of marriage. But trouble might
a
c
3 S. Q, Dec. 22, 1880 ad 1 BS. O., Jan. 13, 1893, ad 5
KColl. P. P., n. 1544). (Cull. P. P., n. 1777).
* Sec can. 1082; this Commcn- e Comment, 1894; p. 101, n. 157;
tary, Vol. V, pp. 323 f. I.chmkuhl, II, 969.
■ -
*Ie
j ^ Original fro m
UNIVERSITY OF WISCONSIN
■
CANON 2388 477
arise in the external forum, which presumes internal
consent whenever external consent is given.7 Hence in
the external forum a marriage is supposed to exist if
there is a semblance (figura et species) of matrimony,
as is the case, e. g., in a civil marriage, i. e., one con-
tracted before a civil magistrate without the prescribed
ecclesiastical forum. This no doubt is generally the
case where persons forbidden by ecclesiastical law attempt
to contract marriage. But the Code lays under censure
also the party who contracts with one forbidden to marry.
This is a relative impediment, following the individual
character of the matrimonial contract Our text, then,
states:
1. Clerics in higher orders, and regulars or nuns with
solemn vows of chastity, who presume to contract a
marriage, even though it be only a cwil one, and
2. All those who presume to contract such a marriage
with one of the aforesaid persons,
3. Incur excommumcation laiae sentcntiae, simply re-
served to the Apostolic Sec.
4. Clerics who, after a canonical warning, do not
retrace the step within the rime set by the Ordinary,
(a) forfeit all the offices they may hold, just as if they
had formally resigned, for which no further declaration
is required; and (b) shall be degraded, which requires
a condemnatory, or at least a declaratory, sentence, after
the term set in the canonical warning has expired.
Note that the penalty is incurred 8 only after solemn
profession and that the profession must be valid and
p
s
7 See can. xzoo, S 2. in this regard, as the solemn vows
s Therefore those members of the (Gregory XIII, "Asccndentt," May
Society of Jesus who have made 35. 1584) do not incur the penalty;
only simple vows, although these D'Annibale. /. c„ n. 156.
produce for thera the same effect.
oogle
Original from
UNIVERSITY OF WISCONSIN
478 PENALTIES
the vow absolute and pronounced after the temporary
vows had been taker.8
The term " praesumentes " supposes full knowledge
and deliberation. Knowledge is here directed to the fact
that the marriage is null and void and contrary to ec-
clesiastical law. It also supposes knowledge of the
penalty.10 Therefore supine or crass ignorance would ex-
cuse one from incurring the censure. This ignorance
would have to he directed to the fact that the marriage
was (supposedly) contracted and that it is null and void.
This is true also concerning another hypothesis. It may
be that the parties concerned did not realize the nullity
of their marriage at the moment they contracted it, but
learned of its nullity afterwards, and continued their
matrimonial or rather concubinarian relation. Even in
this case the censure would not be contracted.11 But it
must be added that in clerics and religious such ignorance
is almost impossible, unless their mental condition be
impaired.12 On the other hand it is not impossible
that they should doubt and gradually persuade themselves
that their ordination or profession was not according to
law, or defective, or invalid. Consequently, they may
also deem their marriage valid. Much easier is it to
assume ignorance in the other contracting party, who is
not bound by the ties of the clerical state or vow. How-
ever, even there affected ignorance would not excuse.13
Deliberation requires freedom of the will, which is cer-
tainly impaired by grave fear. Therefore it is com-
monly held u that grave fear (metiis gravis) excuses one
9 See can. 574, S IJ can. 1309. 18 The affectato, admitted by
30 Can. 2229, 9 X Fvnnaccni (II, p. 23) can no
11 Avanzini, n. 39; Pcnnacchi, longer be defended on account of
I. c, IX, p. 24. can. 1229, S 1.
12 Hollweck, /. c„ fi 230, p. 300, 14 Pennacchi. /. e.t II. p. 22 f.:
note 4. D'Annibale. /. c, p. ioi, n. 157.
§le
v ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2388 479
from censure. Grave fear may be caused by serious
threats of imprisonment or death, no matter whence they
come, provided it is inflicted for the purpose of con-
tracting this particular marriage.15 Even clerics and re-
ligious may be subjected to such threats.
§ 2 of can. 2388 sets forth the penalty for religious
with simple perpetual vows. This penalty is excommuni-
cation latae sententiae1 reserved to the Ordinary. " Ut
supra" says the text ; therefore :
1. AH religious who have taken simple perpetual vows
incur this excommunication ;
2. Also those who contract a marriage with one per-
petually professed, —
3. Provided, however, they presume to contract such a
marriage, according to what was said on presumption.
In regular orders the lay brothers or lay sisters
generally pronounce simple perpetual vows, which can
now only be taken after temporary vows lasting at least
three years (can. 574, §1).
In congregations, either papal or diocesan, all the
members, even though their institute be exempt (like that
of the Passionists and that of the Redemptorists), pro-
nounce only simple vows after the temporary vows.
The other penalties, ♦. e.t loss of office and degradation,
are not to be applied to these.
The Ordinary to whom the censure is reserved, is the
local Ordinary with regard to non-exempt clerical insti-
tutes and nuns with solemn vows ; with regard to
members of exempt clerical institutes the Ordinary is
the competent religious superior tnajor.
is See can. 1087, 5 1.
Grw-uTh-* Original from
OU^IL UNIVERSITY 0FWI5C0NSIN
480 PENALTIES
VIOLATIONS OF COMMUNITY LIFE
Can. 2389
Religiosi legem vitae communis constitutionibus
praescriptae in re notabili violantes, graviter mone-
antur et, emendatione non secuta, puniantur etiam
privatione vocis activae et passivae et, si Supcriores
sint, etiam officii.
Can. 594 insisted upon community life for all religious.
Here we have the penal sanction of this law, which pro-
vides that:
1. Religious who in a serious matter transgress the
lata of common life prescribed by their Constitutions
shall be earnestly warned. This warning may be first
paternal and then canonical, according* to can. 2307, in
order to serve as juridical basis for further procedure;
2. If no amendment follows, the culprits shall be de-
prived of tfte active and the passive vote, and
3. If they are superiors, they sliall also be deprived of
their office.
We need not add more than a few remarks to what
we have said elsewhere on this subject.1
a) A res notabilis is a matter intrinsically or extrinsi-
cally serious. A matter is intrinsically important or
serious if it is of great weight in preserving discipline
or the special purpose of the respective institute. Thus
the peculium seriously affects the whole religious life,
especially of the Mendicant Orders. Thus also the
choir service might seriously impair institutes which have
solemn divine office for their main or chief object, as the
Benedictines.
1 Sec Vol. Ill of this Commentary p. 30J ff.
"-.
oogle
Original from
UNIVERSITY OF WISCONSIN
CANON 2389 481
A matter is extrinsically serious if it is apt to have
grave consequences, e. g., by reason of the influence of
the transgressor.
That superiors are not exempt, nay liable lo severer
punishment than inferiors, is evident from our text.
This holds good also as to the common table and the vow
of poverty. The latter binds the superiors as well as
their subjects. Therefore, says a decree of Clement
VIII, they are not allowed to retain anything, either
movable or immovable, for their own person, neither
can they give permission to anyone to possess anything
of whatsoever kind for himself. As to the common
table, the same decree says that all, including the
superiors, should be satisfied with the same quantity and
quality of food and wine, unless excused by infirmity.*
This decree is merely a further declaration of the
Tridentine decree,8 and was again embodied in a decree
of the S. C Concilii.1*
The penalty is (ferendae sententiae) privation of the
active and the passive vote as well as of office. Superiors
therefore should issue a canonical warning, and after that
proves ineffective, mast inflict the penalty, which is pre-
ceptive (can. 2223).
If the superiors are delinquent, the local Ordinary is
the competent authority to proceed in case of non-exempt
religious, according to can. 6x8. In case of exempt
religious, the local Ordinary should paternally ad-
monish the superior, and if he does not obtain the de-
sired result, report to the Holy See, as per can.
617.
* " Nullus omnino," Tnly 3$, ijqo. concern* superiors (can. 508) and
I 2, 4 {Bull. Luxemburg., Ill, belongs to community life.
8fi). The law of risidene* also 8 Trio"., Sess. 35, c. a, de rtg.
*S. C. C, Sept. 34, 1 6m. I I-
G Original from
OOglt UNIVERSITY QFWI5C0NSIN
482 PENALTIES
This canon also applies to members and superiors of
societies that do not take the three vows, but lead a
common life, for instance, the Fathers of the Precious
Blood.5
s
5 Commissio Pont., June a-3, 19*8 {A. Ap. S., X, 347).
T
I Original from
jf^OOglL UNIVERSITY OF WISCONSIN
TITLE XVTII
CRIMES COMMITTED IN CONFERRING,
RECEIVING, AND RELINQUISHING
ECCLESIASTICAL DIGNITIES, OFFICES, AND
BENEFICES
This entire Title concerns a purely ecclesiastical matter.
The preliminary notions are supposed from former titles,
especially from Book II, Title IV, on ecclesiastical offices,
also Title IV, on benefices, as well as from the particular
canons on special obligations, like the oath of Cardinals,
the blessing of abbots, and the profession of faith.
VIOLATION OF THE FREEDOM OF ELECTIONS
Can. 2390
§ I. Libert a tern electionum ecclesiasticarum quo vis
modo per se vel per alios impedientes, vel electores aut
electum, peracta canonica electione, propter earn quo-
quo modo gravantes, pro modo culpae puniantur.
§ 2. Quod si election! a collegio clericorum vel reli-
giosorum peragcndae, laici vel saecularis potestas
sese illegitime, contra libertatem canonicam, immiscere
praesumpserint, electores qui hanc immixtionem sol-
licitaverint vel sponte admiserint, ipso facto privati
sunt pro ea vice hire eligendi; qui vero suae electioni
taliter factae scienter consenserit, fit ad officium vel
benehcium, de quo agitur, ipso facto inhabilis.
This canon protects the liberty of elections in general
4S3
^le
Original fro rn
UNIVERSITY OF WISCONSIN
484 PENALTIES
(§ i) and particularly against unlawful interference by
the secular power (§2).
§ r has two clauses. The first regards freedom before
or at election. Those, it says, who in any luay, either
themselves or through others, impede the freedom of
ecclesiastical elections, shall be punished according to the
gravity of their quilt.
a) Ecclesiastical elections are those mentioned in
canons 160 ff., especially of bishops, abbots nullius or
prelates nullius, abbots or superiors of religious (also
female) institutes, of the vicar capitular or administrator,
of synodal examiners, judges and pastors consultors.1
An election, according to our Code, may take place
by balloting or by compromise. It is also generally
taught that postulation, presentation, and nomination
were intended by the Decretal a from which our text
is taken.* The scope of this canon no doubt is to safe-
guard the freedom of the Church.
b) Freedom is required, because it is essential, as for
every truly human act, so especially for such transactions
as depend on the choosing of a fit or worthy superior.
Hence any contrary custom is styled a corruption.8
c) The freedom of election may be endangered in many
ways, e. g., by violence, serious threats, grave fear, deceit,
directly or indirectly.'4
d) The undue influence may be exerted by the persons
themselves who endeavor to impede the electors, or
through intermediary agents, including mandantes. Thus
the voters themselves may be the executioners of the will
1 See can. 329, 2 3; 321; 432; Maachat-Gcraldi, Institution** Can-
506; 385; 1574. Aj to the papal onicat, 1, 6, n. 17 (*rf. VmeU,
eUetion tee can. 166 or " Vacant* 1760, I, 337>-
Side." S C. 14. X. I. 6.
2 C. 12, 6*, I, 6, 6* tieclieu*. 4 See can. 169, and this Cornmen-
« Cfr. Schmohfrueber, I, 6, n. 67} Ury, Vol. II, p. 13 J.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 2390 485
of one who is by right excluded from asserting any in-
fluence in the election. The Decretals mention especially
blood relations.5 But other relatives, friends, pastors,
chaplains — who sometimes exert more power than the
law or their office permits — also Ordinaries and reli-
gious superiors may become guilty of such interfer-
ence.
Those who on account of the result, in any way vex
the voters or the elected candidate after the canonical
election has been completed, shall be punished according
to the gravity of their guilt. This vexation may be ex-
ercised by malicious defamation, withdrawal of support,
material damage, or bodily injury. But these molesta-
tions must be inspired by the result of the election, which
is here supposed to have taken place in a canonical way.
If the vexations were inspired by personal spite or family
reasons, the crime would not be verified. The persons
aimed at by these vexations are the voters and the person
elected by them, and no one else.8
The penalty, which according to the Decretals was ex-
communication latae sententiae, is now arbitrary but pre-
ceptive (can. 2223).
§ 2 concerns unlawful interference by the lay or sec-
ular power "with the elections of clerical or religious
bodies. The interference, to fall under this canon, must
be directed against canonical freedom. It may consist
of any act that is injurious to the freedom of the election.
Thus it would be against canonical election if a layman
would be freely and spontaneously admitted to cast his
vote,7 or if the magistrate, no matter what his name or
title, would be asked for permission to hold the election,
or to cast a vote for a certain person;8 or if any lay or
B C. ia, X, 6*. I, 6. tC. j8, Dist. 63.
s Eichmann, /. C. p. 219. 8 Cc. 14, 43. X, I, 6.
G] Original from
OO^K_ UNIVERSITY QFWI5C0NSIN
486 PENALTIES
secular power were present under the pretext of safe-
guarding the election.9
The penalty does not concern those who unjustly
interfere,10 but
a) The electors who either solicit or spontaneously
admit such interference. Consequently, if the lay power
threatens or creates grave fear in the minds of the electors,
the penalty is not incurred.11 The voters are by this
canon deprived ipso facto of the right of ballot, but only
for this one time (pro ea vice), i.e., for the election or
ballot to be cast after this election, which is invalid on
account of unlawful interference.
b) The person unlawfully elected, if he knowingly con-
sents to an election held under such circumstances, is
ipso facto unfit for the office or benefice to which he has
been elected with the interference of the lay power.
Knowledge (can. 2229, § 2) here means being aware of
the lay interference, not of the penalty. The inability is
restricted to the one elective office or benefice which was
to be conferred — qiwad ius ad rem — by this one invalid
election. Since the text says : office or benefice, not only
dignities 12 are intended, but any office or benefice, even
that of a religious superioress and her assistant or
secretary, where such officers are elected.
a
If the lay interference were sanctioned by a special and
express agreement of the secular power with the Church,
as, e.g., a concordat, it would not be unlawful.18
Neither is the prohibition of lay interference here to be
understood as applying to elections performed by laymen,
BCfr. Maschat, /. c; Schmalx- 12 C. 43, X, I, 6 only mentions
grucber, I, 16. n. 60. dignities (see Hollweck, J. c, p.
10 The election would be null and 309, 9 241, note 4); but our text
void; see can. 166- is wider.
11 C. 43,- X, I, 6; Schmalzgrueber, 1 3 Maschat, I. c, I, 6, n. 17;
t. c, n. 68. Schmalrgrueber, /. c, n. 69.
Go >gle
j ^ Original from
UNIVERSITY OF WISCONSIN
CANON 2391 487
as, for instance, in cases where they lawfully elect a
pastor14; for the text explicitly says: an election held
by a clerical or a religious body.
ELECTION, NOMINATION OR PRESENTATION OF
UNWORTHY CANDIDATES; NON-OBSERVANCE
OF ESSENTIAL FORMALITIES
Can. 2391
§ 1. Collegium quod indignum scienter elegerit, ipso
acto privatur pro ea vice iure ad novam electionem
procedendo
§ 2. Singuli veto electores qui substantialem
electionis formam scienter non servaverint, possunt
pro gravitate culpae ab Ordinario puniri.
§ 3. Clerici vel laici qui indignum scienter prae-
sentavcrint vel nominaverint, iure praesentandi vel
nominandi ipso facto pro ea vice carent.
This canon contains two specifically distinct enact-
ments : one directed towards the person elected, pre-
sented, or nominated (§§ 1 and 3), the other concerning
the essential formalities of election (§2).
§1. A college that has knozvingly elected an unworthy
candidate, is ipso facto deprived, for that time, of the
right of proceeding to a new election.
1. A college is the elective body as such, i. e.y as a
body, and therefore the penalty falls upon the members
of this body, as such. Such a body would be a cathedral
chapter or a group of religious endowed with the right
of electing their superior. But it may also be a congre-
gation, according to can. 455; because the text does not
say: a college of clerics or religious.
14 Can. 455.
Gj ^ Original from
OOglt UNIVERSITY 0FWI5C0NSIN
488 PENALTIES
2. Who is unworthy (indignus)? The Code uses the
term idoncus almost exclusively to signify a fit person.1
Here it employs the word indignus. Is unfit and un-
worthy the same? According to a Decretal2 it would
seem that the words indignus and inidoncus have the
same meaning. Worthy (dignus) is the one who
possesses the necessary qualifications, as prescribed by
law, and also the necessary competency for the office in
question. Unworthy (indignus) is he who lacks one or
the other qualification required by law.1 These def-
initions, however, seem to apply to fit and unfit just as
well, and therefore some other element is plainly required
to render the distinction more adequate.
Dignus includes juridical as well as moral qualities,
or, in other words, it combines the strictly technical
qualifications prescribed for an office by law with moral
fitness or equipment; or, perhaps, still better, he is worthy
who possesses all the qualities positively prescribed by
Taw and is without the negative qualities that render one
unworthy of holding a benefice. The latter are, for
instance, excommunication, interdict, suspension, depriva-
tion of the passive vote, infamy, etc* Therefore we
may say that dignus includes idoneus, but adds to it
moral aptitude for the respective office.
But is this the meaning of indignus in our text? We
believe it is. For indignus here cannot simply mean
non-idoncMs, since a person who is not-fit on account of
1 Sec can. 153, I 2; 331; 399 el litterarum scientia; the grazitas
(•ptiores); 434; 433; 504 (in- morum be distinguishes into two
habiles). defects or rather absence thereof:
2 C. 29. X, III, 5. rimen et attua impedimentum
3 RcifTenstuel, I, 6, n. 204, canonicum, among the litter cen-
Schmalzgrueber, I, 6, n. 15, also surcs; but these might just as well
assume* dignitas to be identical with be referred to crimes,
idoneilas, under three headings: * Sec can. 2265, f 1; 2275; 2383;
at tat i J mtlnritaj, gravitas 'norm* "9*i n. ir; 2594.
pjle
£ * ^ v J„ Original from
UMIVERSITY OF WISCONSIN
CANON 2391 489
a merely technical law, can still be postulated.3 Thus,
for instance, a religious who is too young to be elected
to an office, according to can. 504, can be postulated for
that office. Thus a mother general who has served two
successive terms, must now be postulated for a third by
the S. Congregation of Religious.0 But no one can pro-
claim her " unworthy n on that account. The same ap-
pears from the quotations appended to our canon by
Card. Gasparri. Thus a dean of a cathedral chapter was
elected vicar-capitular, but his election was annulled not
only on account of irregularities, but also because he was
under suspension ex informata conscicntia.7
3. If, then, the electors elect one whose unworthiness
is known to them, they are, for this time only, deprived
of the right to proceed to a new election. This supposes
that the first election was invalid and, therefore, null and
void.
The next question is: How is the invalidity of an
election to be ascertained? If an invalid election needs
ratification by the superior or presiding officer, it is his
business to declare that it is invalid. After this is done,
the electors who knowingly voted for an unworthy can-
didate, are deprived of the right of proceeding to a new
election, and the superior who is entitled to confirm or
ratify is authorized to elect another, according to can.
178. If for one reason or another the superior should
decline to exercise this right, he may return it to the
college, and in this case the whole college would again be
entitled to vote.8
If the election, ■ — for instance, of a vicar capitular
6 Thus also Eichmann, /. c, p. 7 S. C. C, Nov. 4. 17" (Richtcr,
220 f. Trid., p. 370, o. a).
6 S. C. Rd., March g, ioao (Am. 8 Eichmann, I. c, p. MI,
Eccl. Rev., Vol. 63, p. 498 ff.).
jle
Original fro m
UNIVERSITY OF WISCONSIN
490 PENALTIES
(can. 438), ' — requires no ratification, the fact of die
unworthiness of the candidate must be ascertained by
either a declaratory or a condemnatory sentence, or must
at least be notorious. Such a declaration would have to
be issued by the presiding officer or in the form of a pro-
test from the innocent members, and in this case we
believe that the innocent members, though in the min-
ority, could proceed to the election immediately (in contin-
ent^.9
§ 2. Individual electors who knowingly fail to ob-
serve the essential fortnaliiies, may be punished by the
Ordinary in proportion to their guilt. Essential for-
malities, according to our Code, arc:
a) The calling of all the chapter members; if more
than one-third has not been called, the election is in-
valid (can. 162, § 3) ;
b) The election of two tellers and the secret collection
of the votes,
c) The publication of the votes and comparing them
with the number of electors,
d) The proclamation of the election and the elected
(see canons 171 and 174).
If any one of these formalities was omitted, though the
electors, or at least some of them, knew of the necessity
of observing them, the guilty ones may be punished.10
This punishment is facultative.
§ 3. Clerics or laymen who knowingly present or nom-
inate an unworthy person for office, are ipso facto de-
e
CI
9 ReifTenstuel, I, 6, n. 360. provincial or president may punish
10 We suppose by him who is en- the electors regular. The Sacred
titled to ratify the election, gen- C. of Religious, to which the acts
erally the superior; thus the local in some cases must be forwarded,
ordinary may punish religious at would also be competent
whose election! he presides; the
^
I , Original from
UNIVERSITY OF WISCONSIN
CANON 2392 491
priwed of the right of presentation or nomiy\ation, for
this one time.
To what was said above concerning itidigni nothing
need be added except that it is easier for la3Tnen than for
clerics to plead ignorance as an excuse. The ea vice
must be understood as stated above. As soon as the Pope
or bishop has rejected the unworthy person and selected
another, the punishment ceases, and the electors may
again nominate or present a candidate.
SIMONY IN ECCLESIASTICAL OFFICES, BENEFICES,
AND DIGNITIES
Can. 2392
Firmo praescripto can. 729, delictum perpetrantes
simoniae in quibuslibet officiis, beneficiis aut dignita-
tibus ecclesiasticis :
i°. Incurrunt in excommunicationem latae senten-
tiae Sedi Apostolicac simpliciter reservatam ;
a0. Ipso facto privati in perpetuum manent hire
eligendi, praesentandi, nominandi, si quod habeant;
3°. Si clerici sint, praeterea suspendantur.
The crime of simony, so heartily detested by the
Church, has been previously mentioned in connection
with penal laws.1 What it is and how far it extends
has been clearly explained. Can. 729 renders any
simoniacal provision of offices, benefices, or dignities null
and void.2 This enactment is here repeated. Conse-
quently any simoniacal election, postulation, nomination,
presentation is null and void ipso iure. Besides, any
1 Sec can. 2324, 2327. ^371. can. 160 and "Vocante Sedt."
2 Except the papal election; Bee
1 Original from
/^jOO^IL UNIVERSITY OF WISCONSIN
492 PENALTIES
simoniacal appointment to, or exchange of, offices, bene-
fices or dignities, or any simoniacal alienation or advowson
or payment for appointment or presentation, retention of,
or agreement to pay, revenues or parts thereof, also
parochial concursus — are illegal and subject to punish-
mentj.8 Not included is real simony practiced for the
purpose of entering the religious state.
Simony, as here intended, not only includes real
(realis), but also confidential or conventional simony, pro-
vided it be not purely mental. The present canon decrees
that those who commit the crime of simony in any ecclesi-
astical office, benefice or dignity:
X. Incur tlte excommunication latae sententiae simply
resented to the Apostolic See, and
2. Are ipso facto deprived forever of tlie right elect-
ing, presenting, or nominating, if they possess that right.
3. If the perpetrators are clerics, they should also be
suspended.
The last-named penalty is ferendae sententiae, but pre-
ceptive (can. 2223), and the suspension is general (can.
2278, § 2).
Q
NEGLECT OF RATIFICATION OR INSTITUTION
Can. 2393
Omnes qui iure eligendi, praesentandi vel nomi-
nandi legitime frauntur, si, neglecta auctoritate illius
cui confirmatio vel institutio competit, officium, bene-
ficium aut dignitatem ecclcsiasticam conferre prae-
8 See X, V, 3; c 3, Extrav. "httolerabilis," June 1, 1569; N.
Comm., V, 1; Pius IV, " Romanum Gariia, De Seneficiis Ecelesiasticis,
Pontificem," Oct. 17, 1564; Piui P. VTII, c. 1 (cd. Vtntt., 1630,
V, "Cum prtmum," April 1, 1566; Vol. II, p. 131 &).
" Quanta Ecclcsiae," April 1, 1568;
jle
I , Original fro m
UNIVERSITY OF WISCONSIN
CANON 2393 493
aumpserint, suo iurc pro ea vice ipso facto privati
manent.
One who is elected and requires ratification (con-
Hrmatio), must ask for this confirmation according to
can. 177, § 1 ; one who has been postulated, must ask to
be admitted according to can. 181. § 1 ; one who has been
nominated or presented, needs institution according to
can. 148, § i. These acts are here understood, not the
institute) corporalis or installatio.1 The Code says:
Those legitimately endozved with the right of electing,
presenting, or nominating, if they presume to confer an
ecclesiastical office, benefice, or dignity by setting aside
the authority of the one who is entitled to ratify the
election (respectively, to admit postulation) or to grant
institution, are ipso iure deprived of their right for this
one time.
Here dolus, or rather ignorance and lack of delibera-
tion, is pre-supposed. The reason for this penalty lies
in the fact that by the act of election, or nomination, or
presentation, one acquires only a ius ad rem, i. e., not a
full right, but merely a claim to the office, benefice, or
dignity, whilst the actual preferment is granted by those
who enjoy the right of confirmation or institution. Ne-
glect to seek ratification or institution is, therefore, a per-
version of the real act of preferment and a slur on the
proper authority.2
1 Eichmann, /. c, p. 225 is wrong c. 2, X, I, 10 (advowson of
in mentioning this. regulars).
a Sec c 23, X, I, 6 (postulation);
oogle
Original from
UNIVERSITY OF WISCONSIN
~
494 PENALTIES
ILLEGALLY TAKING POSSESSION OF ECCLESIASTICAL
OFFICES, ETC.
7
I
Can. 2394
Qui beneficium, officium vel dignitatem ecclesi-
asticam propria auctoritate occupavcrit vel, ad ea
electus, praesentatus, nominatus in eorundern pos-
sessionem vel regimen seu administrationem sese in-
gesserit, antequam necessarias litteras confirmationis
vel institutionis acceperit easque illis ostenderit,
qui bus de iure debet:
i°. Sit ipso iure ad eadem inhabilis et praeterea ab
Ordi nario pro gravitate culpae puniatur ;
20. Per suspensionern, privationem beneficii, officii,
dignitatis antea obtentae et, si res ferat, etiam per de-
positionem, cogatur a beneficii, officii, dignitatis oc-
cupatione eorumque regimine vel administratione sta-
tim, monitione praemissa, recedcre;
3°. Capitula vero, conventus aliique omnes ad quos
spcctat, huiusmodi electos, praesentatos vel nominatos
ante litterarum exhibitionem admittentes, ipso facto a
iure eligendi, nominandi vel praesentandi suspensi
maneant ad beneplacitum Sedis Apostolicae.
This canon distinguishes two different ways of taking
possession: the corporate institutio (can. 1443, § 2) for
offices or benefices of free appointment, and the as-
sumption of offices to which a claim has been obtained
by election, nomination, or presentation. The offices or
benefices to which one is freely appointed are taken
possession of by bodily institution or installation, which
is reserved to the local Ordinary. This last in the series
jle
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2394 495
of appointive acts presupposes actual appointment
or ius in re. However, as can. 1443, § 1, says, no
one should take possession of a benefice conferred on
him on his own authority.
Those elected, presented, or nominated, need letters
of confirmation or institution, which they must obtain
from the proper authority and show to those who are
entitled to see them. Thus a bishop elected and con-
firmed must show the bulls to the chapter or consultors,1
before he can take possession of, govern, or administer
his diocese.
1. Those who act contrary to this law are ipso iure
rendered incapable of Iwlding the office, benefice, or dig-
nity in question and, besides, shall be punished by the Or-
dinary in proportion to the gravity of their fault. Con-
sistorial as well as non-consistorial, secular as well as
religious, residential and non-residential, curata and non-
curata benefices are comprised in this law.2 But the
office, benefice, or dignity must have been actually ob-
tained, because the appointment is supposed to have been
made, the election ratified and the nomination and pre-
sentation accepted.
In our country the installation of pastors is not always
performed; and, consequently, this canon does not con-
cern pastors in dioceses where this formality is usually
omitted. But the other clause concerning the papal
letters for prelatical offices also holds here.a The penalty
is vindictive, but latae sententiae, and therefore needs a
dispensation from the superior to whom the installation
lSee can. 334. 8 3'. 293. fi a; cumbentia," Nov. I, 1557; Hollweck,
313, 9 1; 322, S 1- '• <"-. 312, 9 a+6.
aC 5, 6' I, 6; c. 3. Extrav. a Pius IX, "Romanus Pontiftx,"
Comm., I, 3; Innocent VIII, "Ad Aug. 28, 1873 W. S. S., VII, 401).
rtformandum," i4Bs; P™1 IV, "In-
>ogle
£ * ^ v J„ Original from
UNIVERSITY OF WISCONSIN
496
PENALTIES
■
or ratification by right belongs, *. e., either the local
Ordinary or the Pope.
2. By suspension from, or privation * of, the benefice,
office, or dignity already obtained and, if necessary, even
by deposition, must tlie culprit be compelled to give up
his office, benefice, or dignity and immediately to re-
linquish the government and administration thereof ; but
this latter deposition, being fcrendae sententiae, requires
a canonical admonition (can. 2307).
3. Chapters, convents, and other communities that
admit persons elected, presented, or nominated to the
administration or government of an office, benefice, or
dignity before the exhibition of the letters of ap-
pointment, remain ipso facto deprived of the right of
electing, nominating, or presenting as long as it pleases
the Apostolic See (ad beneplacitum Apostolkae
Sedis)*
Aliique may mean any community or corporation that
enjoys the right of election, e. g., a chapter under a prel-
ate or abbot mdlins.
ACCEPTANCE OF AN OFFICE NOT VACANT DE IURE
Can. 2395
Qui scienter acceptat collationem officii, beneficii
vel dignitatis de iure non vacantis et patiatur se in eius
possessionem immitti, sit ipso facto inhabilis ad ilia
* Privation is possible, because
they reallj had a ins in re, not only
ad rent.
B "ApostoUeae Sedis," V, 1 1
"Suspensionem ipso facto incurrunt
a suorum Beneficiorum perceptione
ad beneplacitum S. Scdis Capitulo
tt conventus ecclcsiarum et mon-
asteriorum aliique omnes, qui ad
illarum sett iltontm regimen et ad-
ministrationtm recipiunt Epiicopos
aliosve Praelatas de praediclis ec~
ctcsiis '.v:i monasieriij apud eandem
S. Sedcm quovis nodo provisos,
antequam ipsi erhibuerwit litteras
apostolicas de sua promotione."
oogle
Original fro m
UNIVERSITY OF WISCONSIN
CANON 2395-2396 497
postea assequenda aliisque poenis pro modo culpae
puniatur.
As we have explained elsewhere, an office may become
vacant de iure or de facto or both ways.1 It becomes
vacant de iure if the title to it is lost, as per can. 183.
An office must he vacant at least de iure to be legally
conferred ; any provision made otherwise is null and
void (can. 150, § 1).
Our canon says:
Whoever knowingly accepts an appointment to an
office, benefice, or dignity that is not vacant dc iure
and allows himself to be put in possession thereof, is
rendered ipso facto incapable of obtaining this office,
etc., aftertvards and, besides, shall be punished other-
wise in proportion to his guilt. Note the word scienter
according to can. 2229, §2, and the copula et, which
signifies that one permits himself to be illegally installed
after having knowingly accepted an illegal appointment.
The text, following the old law,3 mentions actual ap-
pointment (collationem) and hence a mere promise of
a benefice to become vacant in future is not forbidden,
RETENTION OF INCOMPATIBLE OFFICES
Can. 2396
Clericus, qui assecutus pacificam possessionem
officii vel beneficii cum priore incompatibilis, prius
quoque retinere praesumpserit contra praescriptum
can. 156, 1439, utroque privatus ipso iure exsistat.
Concerning incompatible offices and benefices, consult
1 See Vol. II of thi« Commentary, 2 C. 6. X, III. 8: Muchat. L c,
p. 107. in, til. 8, n. 5 t
I Original from
jr^OOglL UNIVERSITY OF WISCONSIN
-'
■
pi
498 PENALTIES
canons 156 and 1439.1 Note also that the second office
or benefice must be peacefully possessed, i. e., there must
be no litigation in connection with it. It supposes, there-
fore, not only appointment or preferment, but actual
possession by bodily installation.
Therefore, the law punishes with the loss of both
benefices a cleric who, fiaving taken peaceful possession
of another office or benefice incompatible with one already
possessed by him, dares to retain both.
How soon this penalty is effective, the Code does not
expressly state, but it may be deduced from the text
The word praesumpserit supposes a knowledge of the
incompatibility of the two offices. The term assecutus
(perfect) supposes tranquil possession. The moment
these two conditions are verified, therefore, the penalty
goes into effect. Formerly it was assumed that a month
must have elapsed2; but the Code does not favor this
assumption.
;
E
REFUSAL OF THE CARDINAL'S OATH
Can. 2397
Si quis ad dignitatem cardinalitiam promotus,
iusiurandum, de quo in can. 234, emittere recusaverit,
ipso facto cardinalitia dignitate privatus perpetuo
maneat.
The duty of a cardinal is, as Sixtus V declared,1 to
assist the Vicar of Christ on earth by advice and col-
laboration in governing the Church. This naturally re-
1 See Vol II of this Commentary, note 3; Reiffenstuel, III, 5, n. 338,
pp. iij f. rejects this view.
tUollweck, I. c, p. 3x8, 5 3$7* l "Poitquam," Dec. 3. 1586, 9 19
{Bull. Luxemb., II, on).
ogle
f~* ^ ^ %\s* Original from
UNIVERSITY OF WISCONSIN
CANON 2398 499
quires personal presence, at least occasionally. Hence
the same Pontiff ordered that no one absent from the
Curia should be created a cardinal, or rather receive the
red biretta, blessed by the Pope and transmitted by a
special courier, unless he gives oath into the hands
of an ecclesiastical dignitary that he will visit the
Holy City within one year. A copy of this oath was to
be immediately forwarded to the Pope. Then the penalty
contained in our text is added : " If any one promoted
to the cardinaiate refuses to take this oath, he is ipso
facto and forever deprived of the cardinalitxal dignity" f
No declaratory sentence is required.
NEGLECT OF EPISCOPAL CONSECRATION
Can. 2398
Si quis ad episcopatum promotus, contra prae-
scriptum can. 333 intra tres menses consecrationem
suscipere neglexerit, fructus non facit suos, fabricae
ecclesiae cathedralis applicandos ; et si postea in
eadem negligentia per totidem menses perstiterit,
episcopatu privatus ipso iure manet.
The Council of Chalcedon (451) and other synods1
insisted upon the necessity of episcopal consecration for
those called to the plenitude of sacerdotal power. Our
canon is the sanction to can. 333. It provides that anyone
promoted to the episcopacy, who neglects to receive the
episcopal consecration within three months after receiving
the Apostolic letters of appointment, is deprived of tlw
3 Said Constitution added that if But our text leaves that to the Pope
the Cardinal does not come to to decide.
Rome, the same penalty follows. l See c. 3, Disfc 75; c. 1, Dirt.
TOO.
§le
( * ^ -. i\,* Original from
UNIVERSITY OF WISCONSIN
5oo
PENALTIES
-
N
■
ftftUMttf of his office, which are in that case to be applied
to the building fund of the cathedral, not to the niensa
cpiscopalis. This obligation becomes effective ninety
days after date of the reception of the papal letter, and
binds ex iustitia.
If the appointee neglects to receive the episcopal con-
secration for another term of three months, he is ipso
facto deprived of the episcopal office? without any further
declaration. However, it appears to us that can. 2223,
§ 4, concerning the public weal, would find application
here.
FORSAKING ONE'S POST
Can. 2399
Clerici maiores, munus a proprio Ordinario sibi
commissum, sine ciusdem Ordinarii liccntia, deserere
praesumentes, suspendantur a divinis ad tempus ab
Ordinario secundum diversos casus praefmiendum.
Not only the law of obedience, but also the residential
or diocesan obligation and ordinary courtesy demand
that a cleric stick to the position or post entrusted to him
by his Ordinary.1 The present canon is a sanction of
can. 128. The munus intended comprises all kinds of
offices with which a cleric may be entrusted. Only in
case the clergyman had no " place " in the diocese and
was not properly incardinated, would he be allowed to
go elsewhere.' But even then he should at least a-sk
for permission to leave.3 Not to forsake the charge
assigned means to M stick to it " as long as the bishop
arnrf., S«s. 23, c. a, d# rwf.
1 See can. 127, 128, 143
2S. C. C, Dec. 5, 1574 (Richtcr,
Trid., p. 207. n. 3).
8 S. C C, June 12, 1604 (ib.).
>ogle
Original fro m
UNIVERSITY OF WISCONSIN
N
■
CANON 2400 501
deems it necessary. This obligation is attached to the
office or charge, and even clerics who have been or-
dained on the title of their own patrimony are not ex-
empt from this law*
The text says: Clerks in higher orders, who without
the Ordinary's permission, dare to relinquish a place or
position assigned to them by their Ordinary, shall be sus-
pended a diznnis for a period to be determined by the
Ordinary, as the case may require.
This vindictive penalty (can. 2298, n. 2) presupposes
malice and knowledge of the evil consequences apt to
follow such conduct. Resignation, if properly tendered
and accepted (can. 190), does not establish the crime.
RESIGNATION OF AN ECCLESIASTICAL OFFICE INTO
THE HANDS OF LAYMEN
Can. 2400
Clericus qui in manus laicorum officium, beneficium
aut dignitatem ecclesiasticam resignare praesumpserit,
ipso facto in suspensionem a divinis incurrit.
h-
E
A cleric who dares to resign an ecclesiastical office,
benefice, or dignity into the hands of laymen, ipso facto
incurs suspension a dhinis. Here the act of resignation
itself is punished, and justly so, because, as ecclesiastical
offices, etc., cannot be received from laymen, neither can
they be resigned into their hands. The Decretals1
from which our text is taken supposed that the clergyman
received his office or benefice from laymen, and there-
fore pronounced privation.
"-.
* ibid. not »uppo»e rc-acccptan^c — only
1 C. 8, X, I, 9; Hollwcck, /. e., resignation.
p. 317. 9 257- But our text does
G 1 Originalfiom
OOglL UNIVERSITY 0FWI5C0NSIN
502 PENALTIES
Laymen are all persons not initiated into the clerical
order, even though they be trustees or hold a so-called
ecclesiastical office.3 The offices here intended are all
kinds of offices, either of election, or presentation, or
nomination. Presumption, however, is supposed (can.
2229, § 2). The suspension is not reserved (see can.
2253, n, 1).
i
RETENTION OF OFFICE DESPITE PRIVATION OR
REMOVAL
■
Can. 2401
Si quis in detinendo officio, beneficio, dignitate, non
obstante legitima privatione aut remotione, persistat,
aut ne ea dimittat, moras illegitime nectat, ea, prae-
missa monitione, deserere cogatur per suspensionem a
divinis aliasve poenas, depositions si res ferat, non
exclusa.
By privation and removal legitimately decreed and
inflicted, an office becomes vacant de sure and may there-
fore be conferred upon another person.1 Thus one who
holds two incompatible offices is deprived ipso iitre (can.
2396) of both and they become vacant by law (can. 2396;
sec can. 156). A pastor, whether removable or irremov-
able, may he removed according to law, and in that case
has to leave his pastoral residence as soon as possible.2
If he continues to hang on to an office, benefice, or dignity,
of which he has been lawfully deprived, or from which
he has been removed, or if he sets up an unlawful
opposition, he shall be (canonically) warned, and if the
warning proves fruitless, compelled to leave the office,
2 Rciffenstuel 1, q, n. 5. 2 See can. 2147-2x61.
1 See can. 151; 183, 9 1; 2298, n.
6; J399, fi i( 3.
oogle
v ,|r> Original fro rn
UNIVERSITY OF WISCONSIN
CANON 2402-2403 503
benefice or dignity, by suspension a divinis and, if
necessary, by deposition.*
Morac illegitimae properly means unlawful delay
caused in the execution of a sentence or decree. Law-
ful would be an appeal from the sentence of privation,
which is a vindictive penalty, and also recourse from a
decree of the Ordinary against removal (can. 2153).
Pending an appeal or recourse, no canonical warning
should be issued, because the text presupposes unlawful
delay.
NEGLECT TO RECEIVE THE ABBATIAL BLESSING
Can. 2402
Abbas vel Praelatus nullius, qui contra prae-
scriptum can. 322, § 2, benedictionem non receperit,
est ipso facto a iurisdictione suspensus.
An abbot nullius or a prelate nullius who is required
by an Apostolic mandate or by a statute of his institute
to receive the abbatial blessing (to be imparted by a
bishop) and neglects to receive it within three months
from the date of receiving the Apostolic letters of ap-
pointment or confirmation, is ipso facto suspended from
jurisdiction *■; provided no lawful impediment prevented
him from receiving the blessing.
NEGLECT OF PROFESSION OF FAITH
Can. 2403
Qui contra praescriptum can. 1406 fidei professionem
8 See c. un. Extrav. Joann. 1 See can. 227B, ! a, n. 1.
XXII, tit. Ill, c. 4; c. 4; Extrar.
Comm,, III, a,
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
504 PENALTIES
sine iusto impedimcnto emittcre negligat, moneatur,
praefinito quo que congruo termino; quo transacto,
contumax, etiam per privationem officii, beneficii,
dignitatis, muneris, puniatur; ncc interim beneficii,
officii, dignitatis, muneris fructus facit suos.
■
Those who are obliged to make profession of faith
are enumerated in can. 1406. This profession is distinct
from the oath to be administered by the consecrating
bishop to a bishop-elect, and therefore the oath cannot
take the place of the profession1 (can. 1406, § I,
n. 3). The Orientals, too, are bound to make this pro-
fession according to the newly prescribed formula.8
Our canon says that whoever, contrary to can. 1406,
neglects to make profession of faith, unless prevented
by lawful impediment,
1. Shall be warned canonically, a suitable time bein£
granted within which he may comply with his obligation ;
2. If he permits the fixed term to go by and stubbornly
persists in his refusal, he shall be punished even by pri-
vation from office, benefice, dignity or charge, and
3. Meanwhile (». e.t as long as his contumacy lasts)
he shall not be entitled to the income from his benefice,
office, dignity, or charge and is, therefore, obliged
to make restitution if he takes any part of it
IS. C P. F., Jan. 10, 1875 *S. C. P. F., July 16, 1878 (16.
{Coll., n. 1429). The iuromtnhtm n. 1429), and the formula 16., Vol.
in the Pont. Rom., " De CoHsecra- II, 122 i.\ the formula for the
t\anc Eitcti in Epiicopum." Latin Church, ib., p. 97 f.
J Original from 1
UNIVERSITY OF WISCONSIN 4
TITLE XIX
ABUSE OF ECCLESIASTICAL POWER OR
OFFICE
This Title, too, per se, contains purely ecclesiastical
matter, yet there are canons inserted here which may
bring the Church into conflict with the civil power.
Thus official documents may be abused and passed to
persons for whom they are not intended. Ecclesiastical
officials may be bribed and provoke a civil suit. All this
is comprised under the general term abuse. Power refers
to those who exercise either jurisdiction proper or
domestic power, whilst office comprises every charge of
public trust. It is precisely the abuse of public con-
fidence and the damage accruing to public welfare that
the Church wishes to prevent by these penal enactments.
ABUSE OF ECCLESIASTICAL POWER
Can. 2404
Abusus potestatis ecclesiasticae, prudenti legitinii
Superioris arbitrio, pro gravitate culpae puniatur,
salvo praescripto canonum qui certain poenam in
aliquos abusus statuunt.
Abuse of ecclesiastical power shall be punished by the
lawful superior according to his prudent judgment and
in proportion to the gravity of the fault, with due regard,
however, to the canons which inflict distinct penalties for
certain abuses.
505
_. Prw-uil^ Original from
■OOgie UNIVERSITY OF WISCONSIN
506 PENALTIES
There may be overzealous, or imprudent, or revengeful
prelates, who are too ready to inflict penalties, especially
censures, before they have lawful proofs against the
culprit.1 Then there is " the root of all evil," 2 avarice,
which may prompt some to be too lenient in granting
favors, absolutions, or dispensations,8 or in meting out
penalties. Another abuse of power would be to demand
pecuniary contributions on the occasion of episcopal or
canonical visitations.* Some abuses are especially singled
out in the following canons, whilst others have already
been mentioned, for instance, absolution without the
necessary faculties (can. 2338) and conferring of orders
(can. 2370, 2373)-
TAMPERING WITH DIOCESAN DOCUMENTS
Can. 2405
:
C
Vxcarius Capitularis aliive omnes, tarn de Capitulo,
quam extranei, qui documcntum quodibet ad Curiam
episcopalem pertinens sive per se sive per alium sub-
traxerint vel destruxerint vel celaverint vel substan-
tialiter imnmtaverint, incurrunt ipso facto in excom-
municationem Sedi Apostolicae simpliciter reservatam,
et ab Ordinario ctiam privatione officii, bcncficii, plecti
poterunt.
The reader will have noticed that the Code is very
particular about official books and documents. The pres-
ent canon sanctions by censure the enactments issued
on this head.
a
-
o
J C. 11, C. 2, q.: " excommuni- 8 C. 3, X, V, 37.
care, antequam causa probetur." 4 C. a, 6° III, 20; Trid., Sesa. 24,
2 I Tim. VI, 10. c. 3, de rcf.
i|e
I , Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2405 507
1. The vicar capitular (our administrator during the
vacancy of the episcopal see) as well as the members of
the chapter (our diocesan consultors), as well as outsiders
(for instance, the secretary or chancellor of the diocese,
or other officials of whatever name or rank, clerics or
laymen) incur the excommunication simply reserved to
the Holy See:
2. If personally or through intermediary persons they
withdraw, or destroy, or conceal, or substantially alter *
any document belonging to the episcopal court, which
certainly is identical with our diocesan court By
documents are understood the papers or entries mentioned
in can. 18 13, § 1; — but not only such as are issued by
the diocesan officials and abstracts of which are kept in
the diocesan archives, but also such as are sent to, or re-
ceived by, the episcopal court; in other words, all
documents which concern persons, property, or rights of
the diocese, as, e. g., petitions, accusations, criminal and
civil acts, dispensations, appointments, concursus and ex-
amination papers, establishments,2 dedications, consecra-
tions of churches and chapels, parishes and missions,
inventories, deeds, abstracts, receipts, and also civil docu-
ments addressed to the diocesan court. Private letters,
unless they bear on ecclesiastical as connected with civil
or criminal procedure, do not belong to the diocesan
court.
3. The penalty is ipso facto excommunication, simply
reserved to the Apostolic See. Note that no presumption
or knowledge or rashness is required (see can. 2229).
Transgressors may furthermore be punished by the Ordi-
nary by privation from office or benefice.
1 A substantial alteration may daries, the distinction between re*
happen if the initial* or the lurname movable and irremovable parishes,
of a person are changed. etc.
2 Also documents fixing boun-
G| , Original from
OOglt UNIVERSITY 0FWI5C0NSIN
508 PENALTIES
PERFIDIOUS AND NEGLECTFUL HANDLING OF
OFFICIAL DOCUMENTS
Can. 2406
§ 1. Quicunque officio tenetur acta vel documents
seu libros Curiarum ecclesiasticarum vel libros paroe-
ciales connciendi. conscribendi aut conservandi. si ea
falsare, adulterare, destrucre vel occuitare praesump-
serit, suo officio privetur aliisve gravibus poenis ab
Ordinario pro modo culpae puniatur.
§ 2. Qui vero acta, documenta vel libros hos legitime
petenti exscribere, transmittere seu exhibere dolose de*
trectaverit aliove quovis modo officium suum prodi-
derit, privatione officii vel suspensione ab eodem et
mulcta ad arbitrium Ordinarii pro gravitate puniri
potest.
~
§ 1. Whoever is obliged by his office to compile, write
or keep records or documents of ecclesiastical courts or
parocliial books, shall be deprived of his office and be
severely punished in proportion to his guilt by the Ordi-
nary, if he dares to falsify, adulterate, destroy, or con-
ceal any of these documents. This concerns especially
chancellors and notaries, who have charge of diocesan
and secret archives, and keep the records of ecclesi-
astical, civil and criminal trials, and also of trials for
beatification:1
Administrators or the diocesan board of trustees are
responsible for an accurate and faithful inventory of the
documents and instruments relating to church property.3
1 See can. 375-378, olio, for a; 181 1; 1874, fi 5; 1946, (1, n. 1;
elections, can. 171, g 5; then, 2142; -■;:■:-■
canons 1385; 16*1-16*5-, 1645, | 3 Sec can. i$x*; 1523, n. 6.
.'Ie
f~* ^ t %\s* Original from
UNIVERSITY OF WISCONSIN
~
CANON 2406 509
Those in charge of Mass stipends and Mass founda-
tions must take good care of their books.1
Pastors are responsible for their parish books.4 These
are especially mentioned, whilst the records, documents, or
books arc supposed to belong to the "curia ecclesi-
astica," or ecclesiastical court. Curia means court and
hence signifies not only the papal or Christian court par
excellence, but also the episcopal court. Here it com-
prises all chapters, cathedral as well as collegiate, and also
religious chapters,5 i e.f corporations which have corporate
rights acknowledged as such. All the officials of such
curiae are here intended, and all their official documents.
£
But religious houses of female congregations are not
included, because the local Ordinary and the religious
superiors are responsible for them.8
The officials named are to be punished if they pre-
sumptuously commit an act here prohibited.
§ 2. Officials who maliciously refuse to copy, transmit,
or produce such records, documents or books to those
who are lawfully entitled to have a copy thereof, or to
have them forwarded or shown, or who in any way
betray their office, may be punished by privation or suspen-
sion from office and, in addition thereto, be fined if the
Ordinary deems it proper, in proportion to the seriousness
of their crime. This concerns not only the notaries or
chancellors of dioceses, but also the vicars-general and
the priests entrusted with the government of a diocese
according to can. 381. The notaries and pastors have to
give out abstracts of or extracts from ecclesiastical reg-
isters, or let those who are entitled to see them inspect
the original papers.7 Pastors are obliged to communicate
-
8 Can. 843. 8 1; IS49. 0 Can. 535.
4 Can. 470. 7 Can. 384.
5 Du Cangc, Chssarium, I, U57;
tee can. 383.
oogle
, .J,., Original from
UNIVERSITY OF WISCONSIN
510 PENALTIES
marriage records to the pastor in whose parish the par-
ties have been baptized.8 The officials of the court from
which appeal is made are bound to forward the acts to the
court of appeal.0 Title deeds must be safely kept and not
allowed to come into the possession of interested, much
less of maliciously inclined, persons.10
The pecuniary penalty is of ancient date and was ap-
plied to the church that had suffered from the malicious
conduct of these officials.11 Prwation and suspension
must be strictly referred to the office itself, and are vin-
dictive penalties.
~
ATTEMPTED BRIBERY OF DIOCESAN OFFICIALS
Can. 2407
Qui Curiae officiates seu administros quosvis ecclesi-
asticos, iudices, advocatos vel procuratores donis aut
pollicitationibus ad actionem vel omissionem officio
suo contrariam inducere tentaverit, congrua poena
plectatur et ad reparanda damna, si qua illata sint,
compellatur.
Whoever attempts, by gifts or promises, to induce
ecclesiastical officials or ministers of the (diocesan or
ecclesiastical, also Ronton) court — judges, advocates, or
procurators, — to an action or omission contrary to their
office, shall be punished according to his deserts and com-
pelled to repair any damage tluit may Ixave been caused
by his conduct. Here the inchoate crime of bribery is
punished, and the punishment is inflicted on those who
make the attempt (conatus delicti), no matter whether it
is or is not successful.1
a Can. 1103, S a; 470, S 3. 10 See cc. 33, 40, C. 12, q. a.
9 Can. 1644. 1890: Bened. XIV, 11 1 bid.
"Ad militantis,'- March 30, 1741. 1 See 2212, | 3, | 4.
>Ie
£ " ^ s ^\t^ Original fro ni
UNIVERSITY OF WISCONSIN
CANON 2407-2408 511
Such attempts may be made by gifts or promises.
Can. 1624 forbids the acceptance of any kind of pres-
ents, even food or drink. Promises are punishable even
if given conditionally. The object or aim of the attempt
is to cause an official to commit or to omit an act contrary
to the obligations of his office. The positive act (actio)
may be committed by the judge who refuses his services
to such as lawfully ask him, or who violates an entrusted
secret, or declares himself competent when he is not, or
deliberately renders an unjust sentence.*
Lawyers and procurators may . betray their office by
unjust acts or illegal means.3
By omission judges become guilty in cases which re-
quire official (ex officio) procedure if they omit to ex-
ecute the sentence or fail to forward the acts to the court
of appeal.* A doubt may arise as to couriers and
beadles, because they may be laymen,8 and the text only
mentions ecclesiastics. However, since they are in the
service of the ecclesiastical court, they no doubt incur
the above-mentioned penalty if they violate the official
secret or neglect to carry out summonses or orders to the
detriment of the party concerned.
OVERCHARGE OF TAXES
9
Can. 2408
Taxas consuetas et legitime approbatas ad normam
can. 1507, augentes aut ultra eas aliquid exigentes,
gravi mulcta pecuniaria coerceantur, et recidivi ab
officio suspendantur vel removeantur pro culpae gravi-
2 Can. 1608; 1625, 9 I. 1644; 1890; Eichmann, /. c, p.
B Can. 1666. *35*
4 Can. 1618; 1938: 1920, fi -; S Can. J59i->593.
jle
Original from
UNIVERSITY OF WISCONSIN
5"
PENALTIES
tate, praeter obligationem restituendi quod iniuste per-
ccperint.
With the exception of taxes for matrimonial dispensa-
tions and funeral services (see can. 1056 and 1234), all
other taxes and stole fees must be fixed by a provincial
council or meeting of the bishops and be approved by
the Apostolic See (can. 1507).
Those who charge more than the customary and legally
established taxes, or permit or demand something beyond
the taxes fixed and determined, shall be checked by
heavy fines, and in case of relapse, be suspended or re-
moved, according to the gravity of their fault. They
are, besides, obliged to tnake restitution of the ill-gotten
goods. Free gifts or donations in excess of the taxes
are not forbidden and may be lawfully kept by the re-
cipient. The penalties of suspension and removal are
ferendae sententiae, but may become obligatory in a
serious case of relapse. The gravity of the fault must
be gauged by the character of the offender, his stub-
bornness, the persons who were overcharged, and the
amount of the overcharge. The fines are to be applied
according to can. 2297.
ILLEGAL ISSUANCE OF DIMISSORIAL LETTERS BY
THE VICAR CAPITULAR
Can. 2409
Vicarius Capitularis concedens litteras dimissorias
pro ordinatione contra praescriptum can. 958, § i, n. 3,
ipso facto subiacet suspensioni a divinis.
According to can. 958, § I, n. 3, the vicar capitular
►ogle
Original from
UNIVERSITY OF WISCONSIN
~
CANON 2410 513
(our administrator), with the consent of the chapter (our
diocesan consultors), may issue dimissorial letters after
the vacancy of the episcopal see has lasted one year.
Within the first year the vicar capitular may grant
such letters only to arctati.1 If he would issue di-
missorials without the consent of the chapter, or within
the first year of vacancy, he would ipso facto incur sus-
pension a divinis, which, however, is not reserved.
RELIGIOUS SUPERIORS GRANTING ILLEGAL
DIMISSORIALS
Can,. 2410
Superiores religiosi .qui, contra praescriptum can.
965-967, subditos suos ad Episcopum alienum ordi-
nandos remittere praesumpserint, ipso facto suspensi
sunt per mensem a Missae celebratione.
Can. 965 prescribes that religious superiors, who are
entitled to issue dimissorials according to can. 964, should
address them to the bishop in whose diocese is located
the religious house of which the ordinand is a member.1
Can. 966 enumerates the cases in which religious
superiors are permitted to have their subjects ordained
by another bishop, provided the diocesan chancellor
testifies to the existence of one of the reasons. Can. 967
warns superiors against fraudulent dealing.2 Can. 2410
sanctions these enactments thus : Religious superiors who
dare to send their ordmands to another bishop are ipso
facto suspended from saying Mass for one month.
Note the term praesumpserint. There would be no
1 See Vol. IV '
tary pp. 434 &•
l See Vol. IV of this Commen- 2 See Vol. IV of this Commen-
tary, pp. 427 f, tary PP- 443 f.
oogle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
5H
PENALTIES
presumption if a religious order had a privilege permit-
ting it to have its members ordained by any Catholic
bishop; nor would there be presumption if they would
act thus under the impression that all regulars possessed
such a privilege; or that this privilege was still valid,
which may really be the case. Neither would there be
presumption if the diocesan officials would refuse to issue
an attestation that the bishop is absent or does not hold
ordinations. For the law grants the religious this right,
and if the diocesan officials unjustly or unreasonably
refuse it, the religious are entitled to assert the law,
which is more than a mere formality of attestation.
This canon also applies to religious living a common life
according to can. 673, if their community enjoys the
privilege of granting dimissorials to its members.8
ILLEGAL ADMISSION TO NOVITIATE OR PROFESSION
Can. 2411
Superiores religiosi qui candidatum non idoneum
contra praescriptum can. 542, aut sine requisitis litteris
testimonialibus contra praescriptum can. 544, ad novi-
tiatum rcccperint, vel ad professioncm contra prae-
scriptum can. 571, § 2 admiserint, pro gravitate culpae
puniantur, non exclusa officii privatione.
Religious superiors who
1. Have received into the novitiate candidates
a) Who under the common law cannot be admitted
either validly or licitly, as per can. 542, the whole of
which is here intended; or who
t Commissio Pontif. 2-3 June VoL X, p. 347.
1918, :i Acta Apostolical Scdis,
►ogle
Original from
UNIVERSITY OF WI5C0NSI
CANON 2412 515
b) Have received candidates into the novitiate without
testimonial letters, as prescribed by can. 544 ; or who
2. Have admitted novices, although fit, before their
novitiate was completed, to temporary profession, as
forbidden by can. 517, § 2; — shall be punished accord-
ing to the gravity of the fault; if necessary, by privation
from office.1
The first part of this canon (n. 1 ; a and b) also ap-
plies to religious societies, with due regard to their con-
stitutions.2
Observe that presumption or ignorance is not admitted
in the text, the reason being that every superior worthy
of the name is supposed to know and to apply these
essential laws.
TRANSGRESSIONS CONCERNING DOWRIES AND
NOTIFICATION OF THE ORDINARY
Can. 2412
Religiosarum etiam exemptarum Antistitae pro
gravitate culpae, non exclusa, si res ferat, officii priva-
tione, ab Ordinario loci puniantur:
i°. Si contra praescriptum can. 548 dotes puellarum
receptarum quoquo modo impendere praesumpserint,
salva semper obligatione de qua in can. 551;
30. Si contra praescriptum can. 552 omiserint Ordi-
narium loci certiorem facere de proxima alicuius ad-
missione ad novitiatum vel ad professionem.
Religious superioresses, even of exempt institutes,
Hf a professed member leaves of transfer can. 551, 8 2 must be
the institute, her entire dowry, «x- observed.
cept the interest, must be restored 2 Commiuio Pont,, Jane 2-3, 19:8
to her (Can. 551, 8 «)S in case (A. Ap. S., X, 347).
*Ie
^ ,1,., Original fro m
UNIVERSITY OF WISCONSIN
516 PENALTIES
shall be punished by the local Ordinary according to the
gravity of their fault, — if necessary, by privation from
office, —
i. If they dare to expend the dowries of their members
contrary to can. 549; 1 or
2. If they neglect to notify the local Ordinary of tfie
admission of candidates to the ncvitiate, or of novices to
profession, as required by can. 552.
The canon here quoted requires a threefold notification :
l°. before admission to the novitiate, 20. before admission
to the temporary profession, 30. before admission to the
perpetual profession. But no information, either formal
or informal, is required for the annual renewal of vows,
which is customary in some religious institutes. Some
sisterhoods renew the vows every year after the
temporary profession, for the space of three or five years.
For such renewal no notification is required.
Observe that the first section of this canon supposes
presumption (praesumpserint). Therefore, if the super-
ioress thought it proper to expend the dowries of her
nuns for building a school or a chapel, or for some other
purpose, because the money was ready at hand and she
forgot the ruling of can. 549, the local Ordinary may be
lenient, and instead of dealing out a penalty, may read
to her said canon; provided the case is not too serious.
§ 2 contains no mention of presumption, because re-
ligious superiors are supposed to know this law and to
respect the authority of the Church.
oogle
/■"* ^ % ,1,., Original from
UNIVERSITY OF WISCONSIN
CANON 2413 517
RELIGIOUS SUPERIORS INTERFERING WITH THE
CANONICAL VISITATION
Can. 2413
§ 1. Antistitae quae post indie tam visitationem reli-
giosas in aliam domum, Visitatore non consentiente,
transtulerint, itemque religiosae omnes, sivc Antistitae
sive subditae, quae per sc vel per alios, directe vel in-
directe, religiosas induxerint ut interrogatae a Visi-
tatore taceant vel veritatem quoquo modo dissimulent
aut non sincere exponant, vel eisdem, ob responsa quae
Vijitatori dederint, molestiam, sub quovis praetextu,
attulerint, inhabiles ad officia assequenda, quae aliarum
regimen secumferunt, a Visitatore declarentur et
Antistitae officio, quo funguntur, priventur.
§ 2. Quae in superiore paragrapho praescripta sunt,
etiam virorum religionibus applicentur.
~
This canon is the penal sanction of can. 51 1-5 13, as far
as the canonical visitation concerns the religious them-
selves, not the visiting superior, although the latter is
under strict obligation to make the visitation at the time
stated in law and according to the approved Constitu-
tions of the resp. institute.1
Note that the Code does not adopt the severe penalties
laid down in the Decretals against; nuns who rashly at-
tempt to impede episcopal visitation. They incurred
ipso facto excommunication notwithstanding all their
1 See Vol. Ill of this Commen- tani; the first edition had been
tary. PP- "33 ff.; also Pellizxariut, placed on the Index); Lezzana,
Trdetotus dt Montalibui, Rome, Summa Quotst. ReguU, 16371 P*
1755, p. 315; cap. X, n. 65 (this 339; this obligation is said to rest
edition wai corrected by F. Hon- on natural and divine law.
>Ie
j ^ Original fro ni
UNIVERSITY OF WISCONSIN
518 PENALTIES
privileges.2 Neither does our text suppose presumptuous
violence, as when religious shut their doors by force
against the canonical visitor. If this should happen, the
visitor would be justified in meeting force with force,
and also to pronounce excommunication against such un-
ruly religious.8
The persons affected by this canon may be divided
into two principal classes.
I. Religious superioresses who, after a visitation has
been duly announced, transfer religious to another house
against the will of the visitor.
Antistitac are the superior general as well as the pro-
vincial, provided the latter is in any way entitled to
transfer religious to another house or usurps this right
against the rule of the institute. The purpose of such
conduct palpably is to remove such as may testify
against the superioress.
Post indie tapt visitationcm supposes that the visitation
was announced, but a formal announcement is not required
if the visitation is held regularly every five years. Yet the
law supposes an express announcement. This all the more
since, as a rule, the canonical visitation should be made
known to the religious, so that they may prepare them-
selves for it.4
The transfer may be only temporary and most prob-
ably it will be made under one pretext or another. But
it does not matter whether it was made permanently or
c
temporarily, if it was done against the express will of the
visitor (visitatore non conscntiente). We say express,
because the text supposes that the visitor forbade or did
not consent to the transfer. Neither does it matter
S C. a, Clem. Ill, 10. A L«tuna. /. e., p. 373; cap.
8 PelHzzarius. /. c, p. 299; cap. 27, n. 2.
X, n. a4.
G| r Original from
OOglt UNIVERSITY QFWI5C0NSIN
B
CANON 2413 519
whether the transfer was made to a religious house of
the same or of another province, or to a local house or
colony or summer resort.
2. The second clause considers two different momenta:
one before or on the day of the canonical visitation, the
other afterwards.
a) All religious, whether superiors or subjects, who
induce other religious to keep silence or misrepresent the
truth in any way or explain things insincerely when asked
by the visitator, no tnatter whether the religious
induce other religious to do these things themselves or.
through intermediary persons, are to be declared incapable
of holding any office involving the government of others
and deposed from the office of superiors.
The inducement may be made directly, especially by
superiors, by way of command, threat, etc., or indirectly
by promises or flattery or special attention, without
expressing special reference to the visitation.
The intermediary persons may be outsiders, servants,
students, parents, relatives, friends. It is required, how-
ever, that these inducements produce an effect upon the
religious. For not the mere attempt is intended, as in
can. 2407.
The phrase ut interrogatae, supposes that the religious
was asked by the visitor. There is no strict and general
obligation compelling religious to present themselves of
their own accord before the visitor. This obligation only
arises if the visitor imposes it on all religious without
exception, or if the rule or Constitutions demand it.
However, if the visitor calls one, she (or he) is obliged
to obey. Nor are they allowed to keep silence (tacere)
if he asks them questions, for that would be tantamount
to contempt for authority. Occult crimes, of which
>Ic
/•^ ^ v ,1,., Original fro m
UNIVERSITY OF WISCONSIN
520 PENALTIES
there is no rumor, must not be revealed, nor faults or
transgressions which have already been corrected.5
On the other hand the religious are not allowed to
dissimulate or to make untruthful statements concerning
either disciplinary or financial matters.
b) Religious, either superiors or inferiors, who, under
any pretext, vex other religious on ae count of an-
swers giuen to the zrisitor are to be punished in the same
way.
The pretext may be a species of zeal or promotion,
but in fact is removal. Reproaches, private or public
remarks, signs of displeasure, may also be used to vex
others. Quite different, of course, would be a paternal
or maternal admonition based on the results of the can-
onical visitation.*
3. The penalty for these transgressions enumerated
under 1 and 2 is as follows : They shall be declared in-
capable of holding any office which implies government
of others, and, if they are superiors, they shall be deprived
of their ofhee?
Offices implying " government of others " are those
held by superiors general, provincial, or local ;
also by mistresses of novices, assistants, prefects or di-
rectrices of schools or academies, also pastors and chap-
lains. Those who themselves spurn authority are not
fit to rule others.
§ 2 of can. 2413 says that what has been prescribed in
the preceding paragraph also applies to male institutes.
B lb; ,:'. see this Commentary, or chaplain. This would be an
Vol. Ill, pp. 138 f. abuse of trust, apt to cause jealousy,
fl Here a remark may be permis- rancor, aversion, nay even enmity,
sible: The visitor is not allowed to 7 There is no special penalty
reveal the name* of those who " had provided for a visitor who abuse*
something to say " to the religious his power or office; but can. 1404 it
superior; much leas is he allowed applicable to him.
to give their names to the confessor
oogle
% ,|,, Original from
UNIVERSITY OF WISCONSIN
I
CANON 2414 521
And since the text does not distinguish between exempt
and non-exempt, all arc included. But the visitor must
perform this duty himself, and only in case of a lawful
impediment may he substitute another, who, however,
must belong to the same order or congregation, because
he should know the rules and constitutions.8 The
visitor intended in § 1, on the other hand, is the local
Ordinary or prelate regular with regard to nuns with
solemn vows; whether the female visitor is included,
seems doubtful.9 This canon is also applicable to reli-
gious societies who lead a common life.10
SUPERIORESS VIOLATING FREEDOM OF CONSCIENCE
Can. 2414
Antistita quae contra praescriptum can. 521, § 3. 522,
523 se gesserit a loci Ordinario moneatur; si iterum
deliquerit, ab eodem officii privatione puniatur, illico
tamen certiore facta Sacra Congregatione de Reli-
giosis.
Superiors of female religious institutes who violate
the rules laid doivn in can. 521, § 3, can. $22, and can.
523, shall be warned by the local Ordinary (see can.
2307). If they commit the same oifence again, they
shall be deprived of their office and the S. Congregation
of Religious shall be immediately notified of the fact.
It is unnecessary to add anything to what we have said
under the canons quoted,11 except that it is the local
8Lezzana, /. c, p. 251; cap. i3, 10 A. Ap. S., X, 347-
n. 93. 11 See Vol. ITI oi this Commen-
9 At
she
mentioned.
9 At least we hardly believe that tary, pp. 159-164; Vol. IV, pp.
•he could inflict the penalties -'69:.
Go >gle
j , Original from
UNIVERSITY OF WISCONSIN
522
PENALTIES
Ordinary, not the religious superior, much less the pastor
or chaplain, who may proceed thus.
LAUS DEO ET REGINAE PACIS
END
$Ie
Original from
UNIVERSITY OF WISCONSIN
GENERAL INDEX
This general index is made on the English text, though not
exclusively, quite a number of Latin terms being inserted for
the convenience of those accustomed to the ecclesiastical termi-
nology. The Roman number refers to the Volumes, the arabic
to the pages.
The canons contained in the eight volumes are distributed
as follows :
1-86: General Rules; Public Law
Volume I : Canons
of the Church.
Volume II :
Volume III:
Volume IV ;
Sacramentals.
Volume V :
Volume VI :
Volume VII:
Volume VIII:
67-486 : The Clergy and Hierarchy.
487-725 : Religious.
726-1011 ; 1144-1153: Sacraments and
1012-1143; 1060-1992: Marriage Law.
1x54-1551: Administrative Law.
1552-2104: Ecclesiastical Trials.
2195-2414: The Penal Code,
523
oogle
Original from
UNIVERSITY OF WISCONSIN
G I Originalfrom
008IL UNIVERSITY 0FWI5C0NSIN
INDEX
Abatement of proceeding, VII,
182.
Abbas Nullius, II, 200 flf.; bur-
suspension, VIII, 227; dis-
ability, VIII, 250.
Abjuration of secret societies,
VIII, 345-
Abortion, irregularity, IV, 489;
penalty, VIII, 397 ff.
ial of, VI, 106; consecration Absence from diocese, II, 08 f.
of altars, VII, 193; consecra- 'Absent members of chapters,
tion of churches, VI, 4; as II, 125.
to marriage, V, 274, 276; Absolution from censures,
neglect of blessing, VIII,
503; ordination, IV, 424;
privileglum fori, VIII, 367;
rights, II, 331 ff-I •*• supellex,
VI, 271; trials, appeals. VII,
46 f.
Abbatia nullius, erection, II,
200 f.
Abbot Primate, II, 526; HI,
49. 59. Hi-
Abbots, postulation, II, 151 ;
pontificals, III, 29, 351 f ■ ;
presidents, II, 526; HI. 1*3
f . : primate, II, 526 ; titular,
III, 147; hearing confession,
VIII, 139 ff. ; from several
censures, VIII, 143 f. ; com~
plicis, IV, 291 f.; VIII, 162,
434 f.; from sin and cen-
sure, VIII, 145 f.; formula
of, VIII, 147 f. ; in danger
of death, IV, 286; VIII, 151
ff. ; in normal conditions,
VIII, 154 ff. ; in more urgent
cases, VIII, 158 ff.; from
apostasy, heresy, VIII, 281
f. ; without faculties. VIII,
432; from irregularities, IV,
506; from reserved sins, IV,
330 ff.
IV, 259; as to minor orders, Abstinence, days of, VI, 179;
IV, 413; consecration of dispensation, VI, 163; law
churches, VI, 5; as to for- of, VI, 177.
bidding books, VI, 456; sus- Abuse of authority and office,
pended, VIII, 224: priv. fori, VIII, 46; of eccl. power,
VIII, 367.
Abduction, impediment, V, 192
f. ; of women, VIII, 407 (.;
of impuberes, VIII, 409.
Ab hotnitie penalty, VIII, 75,
VIII, 50s ff.
Abusus baptismt, IV, 486; or-
dinis, IV, 493 f.
Academic degrees, VIII, 249 f.
Accessories to crime, VIII, 52.
121 ; multiplied censures, Accessus, at trials, VII, 250.
VIII, T27; reserved een- Accidents in crime, VIII, 36.
sures, VIII, 131, 137; in dan- Accomplices in crime, VIII,
ger of death, VIII, 153 : in 49-
normal conditions, VIII, Accounts, by religious, III, 179
155; presumption, VIII, 166; f., 190 f. ; hindering rel. state,
525
>ogle
Original front
UNIVERSITY OF WISCONSI
5*6
INDEX
~
III, 213; books, VII, 267. excommunicated, VIII, 179
Accusation of marriage, V, 416 f. , 182 f. ; by suspended,
f.; post mortem. V, 420. VIII, 231 f.
Acquisition of goods by relig- Administrators, Apostolic, II,
ious, III, 278 f.; of ecd. 326 ff.; of parishes, II, 565
property, VI, 557 & fy of institutions, VI, 581 ;
Actio adipiscatdae, VII, 143: of property, VI, 579; their
recuperandae. VII, 145 J ret- duties, VI, 582, 586; of pious
inendac. VII, 145; ad exhi- foundations as to Masses,
bendum, VII, 264 f . ; petit- IV, 207 t; Vicar-Capitular,
oria-posscssoria. VII. 1 19. 141 Qv>: excommunicated, VIII,
f. ; nullitatis actorum, VII, 188; suspended, VIII, 220.
129; rescissoria. VII, 133 L; Admission to novitiate, III.
extructiva. VII. 147; crim- 205 ff.; illegal, VIII, 514 *.;
inatis, VII, 359 t to profession, III, 255 : VIII,
Actions, personal and real, VI, 514; to postulation, II, 106;
600 • VII, 148; petitory, to religious institutes, III,
possessory, VII, 119 f . i VII. J?8 ff- ; right of admitting.
141 f.; nullitatis actorum, III, 214 f . ; to seminaries,
VII, 129; rescissory, VII, 1 33 VI, 395-
f.; extinguishment of, VII, Admonitions, religious dismis-
147: criminal, civil, VII, 359 sal. Ill 402 ff.; in criminal
f • VIII 531 cases, VII, 3/8; oral-written,
Actor sequiturreum, V, 408; VII, 405; in transfer VII,
VII x2 448; non-resident clergy,
Acts. ' legal forbidden, VIII, VII, 452; against concubin-
167 f, 187 ff-. 247; to in- arians. VII 459; pastoral
famous. VIII. 247. 249; sus- JEM VS^vS
pectcd. VIII, 286; for sui- VII, jft f- <See Warning)
cide. VIII, 403; for immor- Adnotations VI 434. 4/i:
alitv, VIII, 41 s f.; for mixed Adoption, legal, impediment,
marriages, VIII, 452 f.; for % if. 217 t
religious apostasy, VIII, 470; Adoration, of B. Sacrament,
official neglected, VIII, 508 VI 218; perpetual VI. 219.
fcj null and void, II, 29 ff.; ™$&* m ?imc> V, 195 f;
legal to be entered. II. 400 VIII. 414 U U to Pauline
A dmms, suspension from, Advicet when reqmred. II. 35
Vl}1: 22I\ , c- *-J oi examiners, VII, 420,
Administration of Sncrnments, 427
IV, 18; rites in, IV, 26; Ad vitanda scandala, VIII, Si
neglect of, VII, 465 *".; of igg, 173, 182.
orders, IV, 409; of churches, Advocates, VII, 107 f.
VI, 52 ff. ; of property, VI, Advowson, II, 100; VI, 524 ff.
577 ff. ; bad. of temporalities. (See Can. 2263. 2347. 234S.
VII, 418; of Sacraments by 2391. 2392, 2393).
jle
j , Original from
UNIVERSITY OF WISCONSIN
INDEX
527
-
Affidavits, VII, 258; of protest,
VIII, 349.
Affiliation of Tertiaries, III,
68 f.
Affinity, degrees, II, 19; as to
offices, II, 115: as to mar-
riage, V, 208 ff.
Age, canonical, II, 81 ; impedi-
ment, V, 163 f. ; major,
minor, II, 10 f . ; of bishops,
II, 343; as to crime, VIII,
37; novitiate. III, 207; en-
closure, VIII, 370; profes-
sion, III, 255; profession
of faith, IV, 21 ; old age, IV,
402; orders, IV, 457; VIII,
t$i ; of religious superiors,
II, 118.
Aggregation of confraternities,
HI, 458.
Aggressus, in benefices, VI,
543; resignation, VII, 424.
A iure> penalty, VIII, 75, 121 ;
reserved censures, VIII, 131,
137; in danger of death,
VIII, 153; in normal condi-
tion, VIII, 155 ; suspension,
VIII, 227.
Alexian Brothers, III, 13-
Alienation, of property, III,
183 ff. ; of relics and images,
VI, 244; of church property,
VI, 502 ff.: formalities, VI,
599; penalty for, VIII, 392 ff.
All Souls Day, IV. 368.
Alms for Masses (see Sti-
pends). IV, 175 ff.
Altars, Consecrated, VI, 22,
91 f. ; definition, VI, 84; req-
uisites, VI. 86; species, VI,
84; titles, VI, g6; use pro-
fane. VI. 07
Altar stone. IV, 169; breads,
VI, 226; Blessed Sacrament's,
VI, 218; papal, IV, 174 f.;
portable, IV, 169 f . ; priv-
ileged, IV, 104 f.; 365 t
"Attitudo" of Paul III, V, 361.
Ambassadors, II, 285.
Amendment, lack of, III,
404 f., libelli, VII, 161, 179.
Amentcs, baptism of, IV, 62 f.
Amusements of clergy, 11, 86 f.
Analogy, imperial laws, VIII,
80.
Anathema, VIII, 114, 169 f.
Ancestral tombs, VI, 132; wor-
ship, VI, 202.
Animus et voluntas, V, 228.
Anointments, in baptism, IV,
70.; in confirmation, IV, 99;
in Extr. Unction, IV, 407.
Antimcnsia, IV, 159, 174.
Antony, St. Ill, 1.
Apocrisiarii, II, 279.
Apostates, from faith, VIII,
276 f. ; as to orders, IV, 486;
orders received from, VIII,
448; as to burial, VI, 153;
VIII, 360; definition of, VI,
33S\ religious, III, 381 f.;
VIII, 467 f-: books of, VI,
468, 483; VIII, 295.
Apostolic indult, for alienation,
III, 185; VI, 597 ; VIII, 304
Apostolic See, appeals to, VII,
24; meaning of, I, 78; ordin-
ary tribunals, VII, 49 f. ;
persona moralis. II. 3; tem-
poral right, VI, 549. 555;
prescription of, VT, 569; as
to interdict by, VIII, 108;
penalties, VIII, 174; con-
demned doctrine, VIII, 291;
international position, I. 226 ff.
"Apostolicac Sedis," VIII, 274,
277, 287, 289, 291, 314. 3*7,
328, 337, 341, 35i. 354. 363 i»
369. 37". 385. 398. 404. 420.
Apportions (Beadles) VII, 44.
Appeals, in matrimonial cases,
V, 432 ff. ; to Apostolic See,
VII, 24; court of, VII. 92;
definition, when, VII. 318 ff. ;
effect of, VII, 324; lapse of
term, VII, 324; M devotu-
tivo, suspensivo, II, 190;
from abuse, VIII, 62, II*,
334 f. ; to general Council,
VIII, 327 f. ; from vindictive
1 lo >gle
Original from
UNIVERSITY OF V/ISCONSI
528
INDEX
penalties, VIII, 237; from
censures, VIII, 121 £.
Application of Mass, IV,
143 f- ; required (stipend),
IV, 181 f . ; of penalties, VIII,
89 f .
Appointment of offices, II, 104
Approbation, of religious insti-
tutes, III, 49 t-; of books.
VI, 449-
Arbitration, VII, 354.
Archconfraternities, III, 458 ff.
Archives, diocesan, II, 406, 411
f.; secret, II, 413 i", parish,
II, 556 i
Anns, carrying of, II, 87.
Arson, VIII, 409.
Articuti. acts. VII, OI.
Assistance, at marriage, licit,
V, 286 f.; passive, V, 309;
valid, V, 271 ff. ; passive, or
material in heretical worship,
VI, 195 f . ; at service forbid-
den, VIII, 177 f.
Assistants, II, 559 ff. ; of nov-
ice-master, III, 239 f.; as to
marriage, V, 285 ; not al-
lowed at Mass, IV, 149 f. ;
for authentic certificates, VII,
257.
Associations, of laymen, III,
425 ff. ; condemned. III, 427
ff. ; kinds of, III, 441; as to
penalties, VIII, 474.
Assumptionists, III, 18.
Asyli lus, VI, 47; VIII, 3i4-_
Attempts, pending trial, VII,
297 f.; at crime, VIII, 57-
Attentate, VII, 297 f.
Attorney, forbidden, II, 91 ; at
trials, VII. 40 f-: VII, 107
f. : removal of. VII. lis f-I
gratuitous defence, VII, 345.
Auctoritas rcrum similiter iu-
dicatarum, I, 99.
Auditores, II, 267; in trials,
VII, 38 f.
Augustine, St., Augusrinians,
III. 9-
Avsus fuerit, VIII, 90, 349,
. 363, 392, 430.
Authentic documents, VII, 263;
part of Corpus I. C.f I, 44 f.
Author, VI, 432.
Authority of S. R. Congreg.,
II, 27^; to establish con-
fraternities. Ill, 430 f.; of
school, I, 101.
Auxiliaries (bishops). II, 379
B
Bail, giving of, II, 85 f.; at
court, VII, 74.
Balloting, II, 134 ff.
Banns, publication of, V, 56
ff. ; dispensation, V, 64 ff. ;
by pastor, V, 57 f.; time and
place, V, 60 i.
Baptism, member by, II, 9;
IV, 33 ff. ; ceremonies of,
IV, 65 ff. ; certificate for reL
state, III, 216; doubtful in
marriage, V, 145; God-par-
ents, IV, 75 ff.; by non-Cath-
olic ministers. VIII, 200; min-
ister of, IV, 37 ff. ; marriage
as to, V, 182 ff.; place of. IV,
87 ff. ; as to penalties, VIII,
114; record of, IV. 94; rites
of, IV, 65 ff.; subjects of,
IV, 46 ff- ; time, IV, 85 f.
Basement of church, VI, 18.
Basil, St. Ill, 3.
Basilica, VI, 16 f., 49 f-
Beatification process, VII, 385
ff.
Bedrooms, for saying Mass, IV,
172.
Begging, see Quest.
Bells of church, VI. 28 f.
Benedict, St , Benedictines, III,
7 f.; black, III, 1 1 1.
Benedict, the Levite, I, 23.
Benedictine Congregations, II,
124.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
INDEX
529
Benedictine Sisters, III, 69.
Benefices, II, 101 f . ; definition,
VI, 493J division, etc., VI,
501; establishment, VI, 498;
exchange, VI, 544; grant of,
VI, 516 ff.; ordination title,
IV, 466; resignation, VI,
542 ; union, transfer, VI,
SOI ff. ; vacant by rel. profes-
sion, III, 286; suspension
from. VIII, 218, 224 f.
Beneficiaries, burial of, VI,
121 ; duties and rights, II,
427; VI, SJ6 ff.
Bencficium competentiae, II.
67 f.
Bencplacitum Apostolicvm for
alienation. III, 185 f.; VI,
Bequests, III, 182 f . ; neglect
of, VIII, 395-
Betrothal, V. 34 ff.
Bible, VI. 434 f- 447. 467. 471.
Bigamists, irregular, IV, 483;
punished, VIII, 411 f.
Binating, IV, 134 f.; penalty,
vnr, 304 f.
Bishops, auxiliaries, II, 379 f- ;
buried in church, Vl, 105;
coadjutors, II, 378 ff. ; chap-
els of, VI, 68; consecration,
II, 347 f. ; duties of, II, 348
ff. ; election, II, 119 ff. ; en-
tering religious state, III,
211; judges in matters of
faith, VI, 336 f. ; missa pro
populo. II, 366 R.\ pontifi-
cals, II, 356 f. ; power, rights,
II, 45 f.; 341 ff.; 348 ff.;
precedence, II, 38, 375; priv-
ileges, II, 375 ff. ; qualities,
II. ,143 ff. ; relation to Holy
See, II, 364 f. ; religious, III,
357*. residence, II, 358 f. ; s.
supcllex, VI, 271 f. ; as to
penalties, VIII, 94; as to in-
terdict, VIII, 109; priv. fori,
VIII, 367; priv. canonis,
VI 1 1, 379; non-resident,
VIII, 463; visitation of
diocese, II, 367 f. ; visit, ad
limina, II, 365 f. ; as wit-
nesses, VII, 222.
Blasphemy, VIII, 308.
Blessed (Saints), VI, 236 f.
Blessing of churches, VI, 3, 6,
21 ; of s. supcllex, VI, 281
f.; loss of, VI, 284 f.; va-
rious, IV, 563; of marriage,
V, 306 f.
Blindness. II, 570 ; of pastors,
VII, 415. .
Board of diocesan administra-
tors, VI, 579; of judges, VII,
33 f. ; of seminary, VI, 390;
of trustees, VI, 55.
Bona temporalia, VI, 549 ff. ;
ecclesiastiea, VI, 555 ; Pre-
tiosa, VI, 555; sacra, VI, 555;
of religious, III, 172 f.
Books, censorship of, VI, 433
ff. ; forbidden, VI, 458 ff.;
denouncing of, VI, 459; list
of, VI, 466 ff. ; meaning of,
VI, 431; of parish, II, 556
f. ; prohibition of, VI, 454
ff.; penalty for, VIII, 295 f.;
neglect of parochial books,
VIII, 464 f-; 508 f.
Booksellers, VI, 481 i.
Bread for Holy Eucharist, IV,
152 ff. ; VI, 226; leavened,
unleavened, IV, 223 f.
Brevia, Briefs, I, 15.
Breviary, of clergymen, II, 82
f.; of religious, III, 269 f.;
of Sisters, III, 327 f.
Breviatio Canonum, I, 22.
Bribery of Officials, VIII, 510.
Bride's pastor preferred, V.
291.
Building of churches, VI, 13.
Bullae.^ I, 14 f.
Bullaria, various editions, I, 48.
Burial, Ecclesiastical, VI, 100
ff. ; interment, VI, 115 ff. ;
granted to whom. VI, 151 ff. ;
of infidels, VI, 38; pastors'
rights, VI, 116; services, VI,
115 ff. ; selection of, VI, 126;
>ogle
Original fro ni
UNIVERSITY OF WISCONSIN
530
INDEX
of religious, III, 146; of ex-
communicated, VIII, 181 ; of
interdicted, VIII, 213; in-
gressu ab eeclesia, VIII, 215;
privation of, VIII, 249; ex-
tortion of, VIII, 357 f- i of
suicide, VIII. 403; of duel-
lers, VIII, 406.
Calendar of religious, III, 327.
Calumny, VIII, #2.
Camaldolese, III, 8.
Camera Ap. Rev. II, 271.
Camera spoliorum, VI, 276;
VII, 133- m
Camillus, St, III, 17-
Canones Apostolorum, I, 22.
Canones. Ecctesiastici Apos*
tolorum, I, 20; Hippolyti,
ibidem; Domni Abbonis, I,
28.
Canonicates, appointment to,
II, 440 f. ; erection, change,
II. 428 f.
Canonicus, poenitentiartus, II,
426, 436 f. ; theologus, ib.;
penalty, VIII, 466 f.
Canons, chapters of, II, 424 ff- ;
honorary, IF, 441 f . : duties
of, II, 449 f. ; precedence, II,
443 i'. privileges. II, 455 f • ;
residence, II, 458 f. ; rights,
II. 455 *•
Canonization, process, VII, 385
fL, 402.
Capacity of ownership, III,
283.
Capital Punishment, VIII, 62 f.
Capitula Martini, I, 23; Angil-
ramni, ib.
Capitulalio, II, 134.
Capitulum, II, 424 f.
Capuchins, III, II.
Carmelites. Ill, 14.
Carthusians, III, 9.
Cardinals, college of, IT, 237
f. ; creation, II, 231 f.;
duties, II, 238 f. ; insignia, II,
242; office, II, 229 f. ; option,
II, 235 f.; origin, II, 227 ff.;
precedence, II, 38; protector,
III, 98; privileges, II, 239 ff.;
rank, II, 229 f. ; religious,
III. 357 f-I residence, II, 238
ff. ; rights in their titles, II,
243 f. ; rights of electing
Pope, II, 244 f ; as to hear-
ing confessions, IV, 255 f.;
as to Orders, IV, 413; con-
secration of churches, etc.,
VI, 4; burial of. VI. 120;
chapels of, VI, 68; s. sup*
ellex, VI, 270 f. ; forbidden
books, VI, 477 ; as witnesses,
VII, 222 ; as to penalties,
VIII, 94; as to absolution
from censures, VIII, 156;
Priv. fori, VIII, 365; priv.
canonis, VIII, 379; refusal of
oath, VIII, 498.
Carelessness, VIII, 34, 100.
Cases excepted from regular
trial, V. 435 f. ; in beatifica-
tion, VII, 400 f.
Casus perplexus, V, 105 f.
Catacombs, relics, VIII, 320.
Catechetical instructions, VI,
343 f-I neglect of, VII, 465.
Catechumens, as to interpella-
tion. V, 352.
Cathedral churches, conse-
crated, VI, 22; administra-
tion, VT. 53; keeping of BL
Sacr. VI, 214, 219; as to 3,
supellex, VI, 280; as to in-
terdict, VIII, 205 f.
Cathedraticum, VI, 561 ff.
Cathedral Chapter, II, 425 ff.
Causa, privata, VI, 229; pub*
lica, VI, 231.
Causam dare interdieto, VIII,
214. 356; dare contract™, V,
235 f . ; 243 f .
Causae mat ores, VII, 26 ; \m~
plicotae, VII, 174; dubiae,
ib.; matrimonialcs, V. 400
ff, ; ordinationis, IV, 550 ff.
>gle
Original fro m
UNIVERSITY OF WISCONSIN
INDEX
531
Celebret, IV, 128 f.
Celestinians, III, 14.
Celibacy of clergy, II, 77 ff.;
vow of, II, 137-
Cemeteries, blessing of, VI, 6,
104 ff. ; chapels, private, VI,
69; desecration, VI, 108; ex-
humation, VI, 113; keeping
of, VI, in; owners of, VI,
108; reconciliation, VI, 108;
rights of the Church to, VI,
106: violation. VI, 108; in-
terdict, VIII, 209; waiting
time, VI, 113.
Censors of books, VI, 450 f.
Censorship of books, VI, 433 ff.
Censures, VIII,. 70 f.; 104;
perseverance in, VIII, 361 ;
absolution, VIII, 107, 139 ff.;
term, definition, VIII, 113 f.;
use, careful of, VIII, 119;
multiplication of, VIII, 124
f. ; reservation of, VIII, 129
ff. ; reserved to the Ordinary,
VIII, 130; reserved to the
Holy See, VIII, 131; inter-
pretation of, VIII, 132 f.;
preventing reception of Sac-
raments, VIII, 133; revival,
VIII, 142; kinds of, VIII,
163 ff.
Censure violation, irregularity,
IV, 494 ; assistance at mar-
riage, V, 277; as to burial,
VI, 154; as to marriage, V,
157 f-
Ceremonies, of baptism, IV, 65
ff.; of Mass, IV, 152 ff.;
neglect of, VIII, 456 f.
Certificates, of banns, V, 67 f. ;
of baptism, etc., Ill, 216 f.;
for marriage, V, 55 f.; 69.
Cessation of divine service, VI,
41 ; of obligation from vows,
VI, 297: of obligation from
oaths, VI, 314.
Cessio iuris, VI, 593.
Ceteris paribus, II, 435; VIII,
50.
Chancellor, apostolic, II, 269;
diocesan, II, 406 f.
Chancery, Apostolic, II, 269;
diocesan, II, 406 f.
Change of rel. institutes, III,
79 f.
Chapel, interdict, VIII. 200.
Chaplains, of Sisters, III, 170
f.; of confraternities, III,
438 f .
Chapter, diverse, III, 108; di-
vision of provinces. III, 80;
general, III, 108; local, III,
108; power of, III, 108; pro-
vincial, III, 108.
Chapters, voting, II, 23 ff.; of
prelates nullius, II, 337 f.'. of
canons, II, 424 ff.; cathedral,
II, 427 1.; collegiate, ib.;
meetings, II, 446 f. ; statutes,
II, 446 f.; as to preaching,
VI, 361.
Character, indelible of three
Sacraments, IV, 23; of writ-
ing, VII, 93.
Charges for novitiate. III, 249.
Chastity, III, 45; effects of
vow, III, 272 f.; marriage
impediment, V, 136 f. 189.
Children, as to domicile, II, 13
ff. ; education, V, 378; as to
marriage, V, 79; parents'
duties to, V, 330; as to reli-
gious State, III, 206 f. ; com-
munion of, IV, 226 f.
Chorepiscojti, II, 378, 497, 505.
Choir service of religious, III,
324 f.
Chrism, IV, 97 f.
Christian Brothers, III, 17.
Church, right to teach, VI, 319
f. ; right to train clergy, VI,
374", right to establish
schools, VI, 416; right to
censorship of books, VI, 428
f. ; right to possess, VI. 5-19
f. ; a society (his pub.) I,
187 ff.; II, 3 ff.; right to
judiciary power. VII, 3 ff. ;
right to coercive power,
>ogle
Original fro m
UNIVERSITY OF WISCONSIN
532
INDEX
VIII, 59 f- ; to excommunica-
tion, VIII, 168, 171; tem-
poral power, VIII. 384; vin-
dictive penalties, VIII, 236;
violated in freedom, VIII,
334 f-'t violated in property,
VT11, 387.
Church and State, as to crimes,
VIII, 10 f. ; as to coercive
power, VIII, 59 ff- ; as to
interdict, VIII, 195; plotting
against, VIII, 341 f.; history
of, I, 200 ff. ; history in U.
S., I. 247 ff:
Church, building, administra-
tion of, VI, 51: baptized in
Cath. Church, V, 297; "Out-
side the Church," V, 323;
building of, VI, 13; dedica-
tion of. VI. 19; desecration
of, VI, 35; patron, VI, 26;
reconciliation of, VI, 42 ', re-
pair of, VI, 58; for publica-
tion of banns, V, 61 ; titles
and feasts, VI, 25.
Circumstances, aggravating.
VIII, 45 f. ; relieving of
guilt, VIII, 77-
Cistercians, III, 8.
Civil cases, method, VII, 3, 68;
crimes, VIII, 20; defensor,
VII. 108; quashed. VII.
148 f. ; ceremony, V, 230;
marriage, V, 4 ff.
Civilis officii causa, VI, 196.
Claim to absolution from cen-
sure, VIII, 141.
Clandestinity, V. 267 ff., 388.
Chusulae, I, 128 f., 149 f-
CUtnentinae, I, 40 ff.
Clergy, name, II, 41 ; celibacy,
II, 77 f . ; distinction, II,
43 ff. ; examination, II, 74 f-I
insolvent. II. 67 f ; dress, II.
84 f; obligations, II, 70 ff . ;
privileges, II, 56 ff. ; scien-
tific equipment. II, 74 f. ; oc-
cupations, II, 85 ft*. ; admis-
sion to religious state, III,
211 f.
Clerics. Freemasons. VIII, 346:
vitar.di, VIII, 353 f.; prw.
fori, VIII, 367 f.; prw.
canonis, VIII. 376 ft.; em-
bezzlers. VIII, 392; clerical
offenders contra icxtum.
VIII, 416 ff.
Clerical institutes, III, 46 f. ;
administration of sacraments.
III, 142 f. ; training, IV, 452
f; VI, 374-
Closing of evidence, VII. 302.
Coadjutors of Bishops, II, 378
ff.; of pastors, II, 568 f.
Coemptio, V, 266.
Cogentes (burial). VIII, 358
f. ; to clerical-religious state,
VIII, 407-
Cotlatio libera, II, 105.
Collectanea S. C. Prop. Fid., I,
49- .
Collectio Anscltno Dicata, I,
28; Anselmi Lvcani, ib.;
Cationutn Card. Deusdedit,
ib.; Deere talcs Bonisonis, ib.;
Polycarpi, ib.; Trium Parti-
um, I, 29.
Collections of Canon Law, I.
20 ff. ; of the Occident, I, 21
ff. ; of the Orient, I, 20 f. ;
Quesnetliana, I, 22; Da-
cheriana, I, 22; Gregori-
anae, I, 28; Authentic (See
Decretals) ; various for pub-
lication, Vt, .146.
Collegiate chapter, II, 428;
churches, VI, 52 f.
Commentaries, VI, 435, 471.
Communicatio in sacris, VI,
192 f.; VIII. 28s, 289; with
vitandus, VIII, 3.52.
Communion, Holy, IV. 213 ff. ;
of children, IV. 22s; fast
before, IV, 234; frequent, IV,
241 ; at Mass, IV, 215; min-
ister, IV, 213 ff. ; obligation,
IV, 236; place for receiving.
IV, 247; public, IV, 218; re-
cipients, IV, 224 ff. ; rite,
IV, 244; one species, IV, 223 ;
for gaining indulg., IV, 388;
time for receiving. IV, 24s ;
>ogle
r.riritnal from
UNIVERSITY OF WISCONSIN
INDEX
533
unworthy, IV, 240; Viaticum,
IV, 221.
Community, as to interdict,
VIII, 17I1 211; suspended,
VIII, 233; life violated, VIII,
fo; without vows, III, 416
; and custom, I, 109.
Commutation of pious works,
IV, 394;. of vows, VI, 307.
Compensation not allowed to
religious, III, 380; of wit-
nesses, VII, 234.
Competency of court, VII, 11
ff. ; connectio causarum, VII,
22; by contract, VII, 21;
crime, VII, 21; domicile, VII,
18; prevention, VII, 23; rei
sitae, VII, 20; reserved, VII,
12.
Compilaiio Iuris Canonici, I,
28.
Compilations Quinque, I, 36.
Complaint, bill of, VII, 158 ff.
Compos sui, II, 10 f.
Compromise in election, II, 139
f. ; in lawsuits, VII, 352 f.
Compulsion, in marriage, V,
247; assistance at, V, 281;
ordination, II, 104, 108; to
clerical-religious state, VIII,
406 f.
Conatus delicti, VIII, 55 f., 51a
Concefcbratio, IV, 127 f.
Conciliary theory, II, 22s f.
Condones, VIII, 383.
Conclave, VIII, 322 f.
Conclusio in causa, VII, 301 f.
Concordats, I, 74 f. ; 210 ff. ;
II, 61.
Concordia Canonum, I, 22.
Concubinage, of clergy, VII,
4S8 f-I public propriety, V,
213; penalty, VIII, 4*5-
Concursus, II, 528 f.
Condemned doctrines, VIII,
289 f.
Condemnatory sentence, VIII,
91, 103, 180, 182 f., 189 f.,
xg2, 232, 356; suspension of,
VIII, 238, 448.
Conditional baptism, IV, 72 f. ;
marriage, V, 253 ff.
Condonation, of adultery, V,
372.
Confarreatio, V, 265.
Conferences, pastoral, of cler-
gymen, II, 74 ff. ; of religious,
III, 297; penalties, VIII,
455 f.
"Confessio" (altar), VI, 85.
Confession, annual, IV, 348;
different rite, IV, 347; for in-
dulgence, IV, 388; through
interpreter, IV, 340; place
for, IV, 350 f. ; sacrilegious,
IV, 349; juridical, VII, 196 ff.
Confessions, hearing by non-
priests, VIII, 305 f-; with-
out faculties, VIII, 431 f.;
sea! of, violated, VIII, 441;
freedom as to, VIII, 521.
Confessors, of religious. Ill,
153 ff. ; of Sisters, III, 157
ff. ; ordinary, III, 158 f.; ex-
traordinary, ib.; qualities,
III, 164 f . ; appointment. Ill,
166 f. ; duration of office. Ill,
167 f.; removal, III, 168 f;
of lay institutes. Ill, 170; of
seminaries, VI. 393 1 no wit-
nesses, VII, 203; Saints, VII,
386; jurisdiction, IV. 3S5 ff.;
of exempt religious, IV, 260;
of female religious, IV, 265;
examination of, IV, 273; ir-
regularities, IV, 506; judge
and physician, IV, 298; nov-
ice-master, IV, 306; as to
marriage, V, 103 ; as to re-
served cases, VIII, 160 f.;
as to vindictive penalties,
VIII, 241.
Conficere Socramcntum, IV,
26.
Confirmation, form, IV, 97 ff.;
minister, IV, 100 f. ; admin-
fstered by priests, VIII, 410
f. ; record and proof of, IV,
123: sponsors, IV, 118 ff. ;
subjects, IV, 112; time and
oogle
Original from
UNIVERSITY QF WISCONSIN
534
INDEX
Flace, IV, 116 f. ; in office,
I, xo6.
Confraternities, III, 425 ff.; in
especial. III, 448 ff. ; burial,
VI, I2Q; of Christian Doc-
trine, VI, 346.
Congregations S. Rom., Collec-
tions, I, 49; Decreta Authen-
tica, 1, 49.
Congregations S. R., II, 250;
Caeremonialis, II, 262 ; Con-
sistorial, II, 252; Council, II,
256 ; Extraordinary Affairs,
II, 363; H. Office, II, 250;
Oriental Church, II, 264;
Propaganda, II, 259; Reli-
gious, II, 257; Rites, II, 261;
Sacraments, II, 254; Studies,
II, 263; their decisions, II,
274 ff.; monastic, III, 111 f.;
of religious, III, 48, 343 f.
Cotuanguinei as to office, II,
115; as to marriage, accusa-
tion, V, 410; of pastors, VII,
Consanguinity, degrees, II, 19
f.; as to offices, II, 115; mar-
riage impediment, V, 200 ff. ;
multiplication of, V, 206 f.
Conscience, liberty of, III, 519;
manifestation, III, 171; tran-
quillity of, III, 162 f.
Conscientiae, tranquillitatem
ad, III, 162 ; quietem, IV, 269
f. ', in marriage, V, 97.
Consecration, of altars, VI, 91
ff.; diverse, IV, 561 f.; of
bells, VI, 30; of sacred places,
VI, 2 ft. ; anniversary, VI,
24; definition, VI, 2; for-
mula, VI, 20; minister, VI,
3 f. ; proof, VI, 7; registra-
tion, ib.; loss of, VI. 32. 93;
indulgence, VI, 24; effect of,
VI, 33; of s. supdlex, VI,
282 f • loss of, VI, 284 f.;
of bishops, IT, 347; without
mandate, VIII, 444; neglect
of, VIII, 409.
Consecrated species, VIII,
302 f .
Consecrators of bishops, IV,
417.
Consent, when required, II, 35
f. ; want of, in profession,
III, 290; in engagements, V,
38; marriage, V, 13, 222 ff. ;
continuance of, V, 362 f. ; of
parents, V, 79; renewal of
marital, V, 380 f . ; want of
consent, V, 386, 409.
Cofisitium, II, 35 f.
Conspiracy, VIII. 48 f. ; against
authority, VIII, 32^ f.
Constitute, I, 13.
Constitutions, RR. PP., I, 15;
Apostolorum, I, 20; three
papal on Pauline Privilege,
V, 360 i
Constitutions of religious. III,
SO, 54, ,60 f .
Constitutive Sacramcntals, IV,
565.
Consuefttdinarii, as to orders,
„ IV. 450 f.
Consultors, advice, consent, II,
35 : pastors, II, 419 f . ; dio-
cesan, II, 463 ff.; appoint-
ment, II, 465 ff.; obligation*,
II, 466 f.; qualities. II, 466 t
Consummated crime, VIII,
116.
Contempt in, declared, VII,
176, 289; definition, etc., VII,
288 f.; of authority, VIII,
41 f- ;# of faith, ib.
Contentions, procedure, VII,
Continuance of consent V,
262 f.
Continuatio ad Capitularia
Rcgum Francorum, I, 23.
Contracts, VI, 590 ff., 610 f . ;
engagement, V, 37.
Contumacy for censure, VIII,
117 i, 362; in court, VII,
288 ff.
Contumclia Crcatoris, V, 350,
360.
Convalidation of profession,
III, 288. f.
Conventuals, III, II.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
INDEX
535
Converts, II, 13 ; as to baptism,
IV, 41.
Cooperatorcs of pastors, II,
568 f.
Copia confessarii, IV, 233.
Copula, matrimonial, in im-
potency, V, 166 f. ; ignorance
of. V, 230; purpose of, V,
328; right to, V, 241 f.; the-
ory, V, 2; renewal of consent,
V, 383-
Cornerstone, blessing, of, VI,
16.
Corporations, ecclesiastical, II,
1 f. ; 23 ff. ; as plaintiffs, VII,
104; religious. III, 172 f.;
summons, VII, 164; as to in-
terdict, VIII, 211; appealing
to council, VIII. 328 f.
Corpses, desecration of, VIII,
3i8.
Corpus Christi, as to interdict,
VIII, 204.
Corpus Iuris Canonici, I, 43 f.
Correction, libelli, VII, 161 ; of
delinquent, VII, 374 f.
Correptio iudicialis, VII, 374
f.; to neglectful pastors, VII,
466.
Council, genera!, condemned
doctrine by, VIII, 201 ; ap-
peal to, VIII, 328 f.
Councils, canons of, I, 16 ff. ;
general, II, 216 ff . ; plenary,
II. 297 f.; provincial, II, 300;
proceedings, II, 223, 303.
Counsellors of religious, III,
147.
Counsel, defense, VII, 107 f.
Counterplea, VII, 79, 139 f.
Couriers, Vll, 44; for sum-
mons, VII, 168.
Court, diocesan, II, 391 ff. ; V,
406 ff. ; Roman, II, 246 ff.;
in marriage cases, V, 404 f.
Credentcs, VIII, 288.
Cremation, IV, 231; VI, 101,
156.
Crimes, for religious trials, III,
400; occult (irregularity),
IV, 505; marriage impedi-
ment, V, 195 ff. ; forum com-
petent, VII, 21 ; reasons for
privation, II, 16*5; as to pre-
scription, VII, 156; probable
of pastors, VII. 418; occult
for susp., ex inf. consc, VII,
479 f.
Crime, modern theories on.
VIII, 2; definition of, VIII,
10 f. ; gravity, VIII, 14 f.;
public, VIII, 15; occult, tb.;
notorious, VIII, 16 f. ; secret,
VIII, 17; ecclesiastical-civil-
mixed, VIII, 18 f., 408 ff.;
consequences of, VIII, 52 f. ;
inchoate, VIII, $5 f, 91.
Crimen, in crinunoso, VIII,
352; falsi VIII, 410 ff.
Criminal cases, method, VTT,
69; defensor, VII, 108;
quashed, VII, 149; proced-
ure. VII, 3, 380 f. ; act, VIII,
96 f. ; type, VIII, 25; trials,
VII. 355 ff-
Criminality, theories, VIII, 2
ff.. 67 f.
Cross, veneration of, VI, 188;
pectoral, VI, 252.
"Cruce elcvata" at funerals, VI,
141.
Cubicula, for Mass, IV, 172.
Culpa gravis, VII, 4*3'
Cult us, per viam, VII, 385;
non-cultus, VII, 394, 396 ;
term, VI, 186 ff.
Cumielafio utilis, VII, 327.
Curates, II, 559 f.
Luratores, VII, 99.
Curia Romano, II, 246 ff.
Custom, I, 76 f., 106 ff.; as
to marriage, V, 92; repro-
bated, VI, 490; IV, 535; VII,
34-
D
Damnum infectum, VII, 127.
Dances, Balls, II, 93.
Danger of Death, baptism, IV.
59, 71 f- ; absolution, IV, 286
f.; VIII, 151 ff.; 232; com-
pacts, VIII, 436 f. ; marriage,
V, 51, 96 ff.; 294 ff.
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
536
INDEX
Dataria Apostolica, II, 270.
Dawn, aurora, IV, 163.
Day, 1, 116.
Deacons, ministers of Baptism,
IV, 441 : of h. Euch., IV, 213
f. ; as to blessings, IV, 564.
Dcatnbulatoriutn, interdict,
VIII, 198.
Deans, deaneries, II, 201 f. ;
rural. II, 497 ff.
Death of former party, how
proved, V, 176 f.
Debitutn coniugale, V, 325 f.
Debts, contracted by religious,
III, 187; XI, 193 f.; imped-
ing entering religion, III, 212 ;
on church property, VI, 603.
Deeanatus, II, 201 f.
Deceit, in general, II, 32; no-
vitiate (see dolus), III, 208.
Decisiva or dispositiva pars, I,
44-
Declaratio Benedictina, V, 269.
Declaratory sentence, VIII, 91,
103; 180; 182 f. ; 189 f. ; 192;
232; 356; 448.
Decorum of the House of God,
VI, 46; neglect, VII, 465
Decrees of Rom- Pontiffs, I,
13 f- ; I, 16; in eccl. trials,
VII, 484; appeal from, VIII,
328.
Decretals of Popes, I, 22; of
Boniface VIII, I. 38 ff.; of
Clement V, I, 40 ff.; of
Gregory IX, I, 36 ff . ; of
Pseudo-Isidore, I, 24 ff.
Decrctttm Burchardi, I, 27;
Ivonis Carnot, I, 29; Mag-
istri Gratiani, I, 30 ff.
Decretum laudis, III, 51 ff.
Dedication of churches, VI, 19.
Defamation, excuse of penalty,
VIII, 103: absolution in case
of, VIII, 159.
Defects of body, IV, 480; of
mind, IV, 482; of ordination,
IV, 536 f.; of judicial sen-
tence, VII. 330 f.
Defense of the case, VII, 303;
gratuitous, VII, 344 f.; of
pastor, VII, 426; of forbid-
den books, VIII, 295; con-
demned doctrine, VIII, 288,
200.
Defendant, at trials, VII, g$ f.;
108; when free, VII, 194;
contempt, VII, 288 f.
Defensor vincuti, V, 412 ff.;
428 ff.; at trials, VII. 41 f.;
exception to, VII, 65; call-
ing witnesses, VII, 213; in-
cidental questions, VII, 283.
Degradation, VIII, 262 f . ; for
apostasy, VIII, 276, 280; for
violence, VIII, 378; for sol-
ticitatio, VIII, 439; for at-
tempted marriage, VIII, 477.
Degrees of affinity, V, 208 f.;
of consanguinity, V, 202 f. ;
academic, VI, 420.
Delays in trials, VII. 81 f.
Delegation as to marriage, V,
282 ; to be mentioned, V, 134.
Delegates Apostolic, II, 284;
pnv. fori, VIII, 363 f. ; priv.
canonis, VIII, 376 f.
Delegated jurisdiction, II, 174
ff. ; to be mentioned, V, 134.
Delegates, duties of, II, 182 f.
Delictum, VIII, 10 f.
Delinquents. VIII, 64 f.
Demonstrative, VI, 616; VII,
414; VIII, 244.
Denunciation of criminals, VII,
362 f. ; of books, VI, 459 f ;
of clerics-Freemasons. VIII,
346 f . ; false, of solicitation,
VIII. 424 ff. ; obligation of,
VIII, 440.
Deposition of clerics. VIII. 259
ff. ; for apostates, VIII, 279;
for desecration of sacred
species, VIII, 304; for des-
ecration of graves. VIII, 318.
Depositum fidci, VI, 319.
Desecration of Sacred Species,
VIII, 301 ff. : of graves and
corpses, VIII, 318 f. ; of
churches and cemeteries, VI,
35 f.; VIII, 319-
;Ic
Original from
UNIVERSITY OF WISCONSIN
INDEX
537
Desservants, II, 508; VII, 410;
445-
Determinism, VIII, 3-
Devolution of election, II, 147
f . ; Vicar capitular, II, 482 f.
Diaria, VI, 441.
Didascalia Apostolorum, I, 2a
Dignitas, II, 426 f.
Dignities by excommunicated,
VIII, 100, 192 i; violated,
VIII, 377; violating resi-
dence. VIII, 463; held by
religions, III, 354.
Dtlationcs, VII, 71.
Diligence, in crime, VIII, 34 f.
Dimes, III, 29.
Dimissorial letters, IV, 425 ff. ;
recipients of, IV, 431 ff. ;
religious, IV, 434 ff. ; penalty,
vra, 450 f.
Dioceses, erection of, II, 200 f.
Diocesan, domicile, II, 15 f. ;
institutions. III, 48; spread
of. III. 81 f.
Dionysius Exiguus, I, 22.
Dionysio-H adriana, ib.
Direct-indirect, VIII, 338, 383;
absolution, VIII, 435 f. ; vio-
lation of seal of confession,
VIII, 442; as to visitation,
Vm, 5to.
Directors, confessors, IV, 306.
Disability, (disqualification),
VIII, 246, 249 ff- ; for clerics,
VIII, 256.
Disciplinary way, IV, 552.
Disease, concerning engage-
ments, V, 48; the debitum,
V. 327 f-
Dismissal ipso facto. III, 384
f. ; from confraternities. Ill,
437 f-; of religious with tem-
porary vows, III, 387 f . ;
with perpetual vows, III,
301 f.; trial for, III, 396
ff. : of seminary students, VI,
410.
Disobedience, VIII, 324 f.
Disparity of Worship (cultus),
V, 179 f.
Dispensations, I, 173 ff. ; from
irregularities, IV, 504 f . ; of
marriages, V, 95 ff • of rel.
superiors, III, 300 f . ; from
vows, marriage, V, 139; for
forum internum, V, 110;
papal, solves marriage, V,
345; right of petition, V,
4-ii ; feast and fast, VI, 163
f.; from vows, VI. 303; from
oaths, VI, 316; from penal-
ties, VIII, 107, 239 f. ; from
infamy, VIII, 248.
Disposal of property, III, 248.
Disposition for baptism, IV.
61.
Dissolution of engagements,
V, 46 ff. ; of marriage, V,
339 f.
Distributions, daily, II, 431 ff.
Diverse censures, VIII, 127.
Divine Office, II, 82 f; of
chapters, II, 452 f. ; in semi-
public oratories, VI, 77.
Divine offices, what, VIII, 167;
exclusion from, VIII, 176 f.;
in interdicted places, VIII,
203 ff. ; admission to, VIII,
354 f-
Divine Savior, Society of, III,
rR.
Divine Word, Society of, III,
18.
Division of parishes, VI, 506
f.; of property, VI, 558; of
provinces. Ill, 79 f. ■
Doctor's degrees, VI, 419 f.
Doctrxna XII Apostolorum, I,
21.
Doctrine, VIII, 291.
Documents, authority of. VII.
259; investigation of, VII,
245; for matrimonial trials,
V, 436; nature of, VII, 254;
ordinal. VII, 262; papal,
VIII. 331 ; forgery of, VIII,
419 fT.: tampering with, VIII,
506 f.; neelect of, VIII,
508 f.
Dolus, in general, II, 32 f.; in
crime, VIII, 23 f.; 26; in
oogle
Original fro m
UNIVERSITY OF WISCONSIN
533
INDEX
profession, VIII, 474; in neg-
lect, VIII, 493-
Domestic power, III, 103 f.
Domiceltarcs. II, 425.
Domicile and law, I, 89 f. ; II,
12 ff. ; quasi-domicile, ib., II,
15 f.; as to ordination, IV,
419. -P3; as to marriage, V,
57, 207 f. ; as to trials, VII,
18. t
Dominium radicate. III, 277 i.
Dominic, St., Dominicans, III,
12.
Domus formala, III, 48; rcg-
ularis, ib.; religiosa, ib.
Donations, III, 181, 192 ff . ; of
religious. III, 285 ; refusal
of, III, 305; who may make,
VI, 570; of church property,
VI, 60.1.
Dos required. III, 224 ff.
Double monasteries, III, 101 f.
Doubt of law, I, 104; positive,
II, 188; in Extreme Unction,
IV, 403; Baptism vs. Mar-
riage, V, 184 f.; as to pre-
scription; VII, 152; as to
penahy. VIII, 7g; as to cen-
sures, VIII, 131 f. ; as to
reservation, VIII, 138 f.
Dowry. III. 181, 224 ff.: of
transferred religious, III, 368
f. ; illegally expended, VIII,
5 16.
Dress, clerical, II, 84 f . ; reli-
gious, III, 71; of laymen,
III, 423; of postulants, III,
202: prohibition to wear,
VIII, 259; neglect to, VIII,
45* f-
Drunkenness, VIII, 29; 100.
Dubia concordanda, vll, 174.
Dubinin facli, I. 8s; iuris, ib;
legis. I. 104; positive, II, 188.
(see Doubt)
Duel, as to burial, VI, 155;
pcnaltv. VIII, 403 ff.
Dnlia, VI, 187, 235.
Dummodo, clause, I, 128.
Duties of clergymen, II. 70 ff . ;
of religious, III, 298 ff.
E
Ecclesiastical crimes. VIII,
18 f.
Editor, VI, 432; 440 f.; 463;
of liturgical books, VI, igi ;
210; penalty, VIII, 296; 335.
Education, of clergy, VI, 374;
of Christian youth, VI, 411
ff.; non-catholic, VIII, 297
f. ; of religious. III, 2Q2.
Election, acceptation of, II, 144
f. ; of bishops, II, 119 ff. ;
devolution, II, 147 f. ; effect,
II, 143 f-; freedom, VIII, 483
f.; formalities, VIII, 487 f.;
to parishes, II, 524; of Pope,
II, 117 f.; VIII, 321 f.; rati-
fication, II, 146 f.; of reli-
gious superiors, III, 121 f.;
time and mode, II, 123 ff.
Eligible to offices, II, 127 ff.
Embezzlement, VIII, 389.
Emblems at funerals, VI, 141 f.
Emendatio libelli, VII, 161 ;
Emphyteusis, VI, 607.
Enclosure, III, 310 ff. ; exit
from. III, 321 f. ; violation
of, VIII, 368 ff.
Encyclical letters, T, 15 f.
Endowment of churches, VI,
14 f.; of parishes, VI, 404.
Engagement, V, 37 ff.
Enmity against pastors, VII,
415: of witnesses, VII, 209.
Epikeia, I, 174.
Epileptics, ordination of, IV,
482.
Episcopus froprius, IV, 418 ff. ;
of religious, IV, 439; pen-
alty, VIII, 450.
Equity, I, 100; II. 165; divi-
sion of goods, VI, 559.
Erasure in documents, VII, 261.
Erection, of abbatia nullius, II,
200 f. ; of diocese, ib.; of
novitiate, III, 229 f. ; of
provinces, II, 200 f. ; of reli-
gious institutes. TIT, 65 ff . ;
facti at trials, VII, 199.
oogle
Original from
UNIVERSITY OF WISCONSIN
D
INDEX
539
-
Error, in general, II, 33 ; com-
mon, II, 188; in crime, VIII,
33 f.; condemned, VIII, 292
?.; in dispensation, V, 120 f.;
in marriage, V, 231 ff. ; in
sentence, VII, 317.
Esteem, loss of, VII, 416.
Eucharist Holy, IV, 125 ff.;
altar of Bl. Sacrament, VI.
218; exposition, VI, 227;
keeping, VI, 213 £. ; taber-
nacle, VI, 221.
Evidence, circumstantial, VII,
268 ff. ; gravis, levis, viotcnta,
VII, 272.
Evil purpose, VIII. 303.
Exactions for administering
Sacraments. IV. 31.
Examen sponsorum, V, 52 ff.
Examination, bridal, V, 52 ff.;
of junior clergy, II, 74 ff.;
before ordination, IV, 521
f; of pastors, II, 529 f.; for
preaching, VI, 356; refusal
of, VIII, 454 i-
Examiners in certain pases,
VII, 406; in concubinage,
VII, 462; neglect of pastors,
VII. 467: non-resident
clergy, VII, 456; invitation
to resign, VII. 419, 427;
synodal-prosynodal, II, 4*9
f. ; of witnesses, VII, 223.
Excardination, II, 52 ff.
Ex cathedra, VI, 323, 326.
Exceptions, in court, VII, 77
f.; to judge, VII, 60 ff.
Exchange, of benefices. VI.
544; of offices, II, 168; of
property, VI, 604 ; excipere,
as to marriage, V, 281.
Exclaustratio, III, 373 f.
Excommunication, VIII, 164 f. ;
history, VIII. 168 ff. ; nature,
division, VIII. 170 f. ; effects,
VIII. 172 ff. ; excepted from
correction, VII, 377: as to
burial. VI, 39; as to trials,
VII, 105; definition. VIII.
171; inseparable, VIII, 175
ff. ; minor, VIII, 169, 172.
oogle
Execution, of dispensation, V,
128; of sentence, VII, 346 f. ;
of papal documents, V1U,
332; of pious bequests, VIII,
395-
Executor, of rescripts, I, 125
f.; 141 f. ; of sentence, VII,
346 f.
Exemption, history of. Ill, 24
ff.; as to interdict, VIII, 200;
208; from parish, II, 543 f.;
of religious. III, 336.
Exequies, VI, 115; 158.
Exhibition of documents, VII,
265 f.
Exhumation, VI, 159.
Exit from enclosure, III, 321 f.
Ex nunc-ex tunc. V, 391.
Exorcisms, IV, 567.
Expectativae, II, 107.
Expenses, of experts, VII, 249;
for trials, VII, 339 ff. ; wit-
nesses, VII, 234.
Experts, in certain cases, VII,
408 ; in marriage cases, V,
427; in trials, VII, 241 ff.
Exploratto voluntatis. III, 227
f.; neglected. VIII, 516.
Expositi (exposed children),
IV, «•
Exposition, of Bl. Sacrament,
VI, 227 ff.; of false relics.
VIII, 3io\
Express jurisdiction, TV, 277.
Extravagantes Communes, I,
42; loannis XXII, ib.
External act, VIII, 115.
Extreme Unction, anointings,
IV, 407; minister, IV, 308;
to religious. III, 141 f . ; sub-
ject of, IV, 401 ff. ; rites, IV,
406.
Eyewitness, VII, 236 f.
Faculties, in general, I, 159;
183; for absolving from cen-
sures. VIIT. 157; of Apos-
tolic Delegate, I, 265 ff.; of
our Ordinaries, I, 255 ff. ; V,
Original from
UNIVERSITY OF WISCONSIN
"54°
INDEX
112 ff.; cumulative, V, 115
if. ; marriage, V, 1 12 ff. ;
schools. VI, 419; reading
books, VI. 478.# ^fttt
Faith, crimes against, VIII, 275
ff. ; no compulsion, VI, 371;
object of, VI, 328; profes-
sion of, VI, 329; 485; VIII,
503 f. ; danger to, VI, 328.
Falsa denuntiatio. IV. 318 f.
Falsifiers. VIII, 420 f.
jFamilia Pontificia, II, 338 f.
Fatniliares, as to offices, II,
US; of pastors, VII, 4"7 i
Rom. Pontiff, II, 33» *•* <>*
religious, III, M3-
Fast, VI, 160 ff. ; before h.
communion, IV, 234 f. ; be-
fore Mass, IV, 14' f ; viola-
tion of, VIII, 304 i-\ days
of. VI, 179; diocesan indults,
VI. 184 ff.: III. 345; dispen-
sation from, VI, 163 ; law of,
VI, 177; religious, VI, 184.
Fataiia, VII. 81.
Fautores, VIII, 288.
Favor iuris, in marriage, V,
19; to baptism, V, 184 f-
Favors by excommunicated,
VIII, 188 f.; 191; given to,
VIII. 353.
Fear, in chapter acts, II. 29 f. ;
in crime, VIII, 40 f. ; ex-
torted pardon. VIII, 111,
marriage, V. 243 ff. ; 281;
novitiate. III. 207; ordi-
nation, II, 194 fT.; IV, 54i;
55i; profession, III, 256.
Feasts, of Apostles, IV, 533;
dispensations, VI, 163 ; holy-
days of obligation, VI, 171
f. ; as to interdict, VIII, 204;
obligations on, VI, 172; as
to_ ordination. IV. 532 f.*,
origin of, VT, 160; in private
oratories, VI, 80; reckoning
of, VI, 168; titular, VI, 27.
Fees, for entering church, VI,
50; for funerals. VI. 144 f.
Fcrendae scntenttae, VIII, 74;
77, 91 f. ; as to degradation,
VIII, 263; as to deposition,
VIII, 261; as to presumptive
censures, VIII, 166; as to
vindictive penalties, VIII,
237; as to suspension, VIII,
218 ; for various crimes,
viii, 279; 287; 304; 305;
318; 319; 326; 339; 340; 374;
37%', 392; 394: 4i6; 418; 444;
459; 474; 481: 492-
Feria. feast, VI, 160; for trials,
VII, 85.
Fetus, as to baptism, IV, 49 f.;
as to abortion, VIII, 3Q8-
Fictio iuris, V. 39* ; VIII. 165.
Fiavra et species matrimonii,
V, 213; in renewal of con-
sent, V, ^ ; sanatio, V, 395.
Fines, VIII, 250 f.
First Holy Mass, IV, 150.
Fitness for religious state, III,
199 f-
Folia, VI. 437; 441-
Font, baptismal, IV, 88 f.
Forties cognoseendi, I, 14 ff. ;
essendi, I. 10 f.
Forgery, VIII, 419 ff.
Fori, privilegium, II, 59 f.;
VIII, 363 ft\
Form of baptism, IV, 69; of
altar-bread, IV, 154; of ordi-
nation, IV, 539 f. ; of matri-
mony. V, 12; 265 ff.
Formalities, for alienation. VI,
599; for approving rel. insti-
tutes, III, 49; for changing
rel. houses. III. 93; at elec-
tion neglected, VIII, 490; for
pious foundations, VI, G13;
for parish division, VI, 515;
for religious profession, III,
263 f.
Formula of baptism. IV, 35; of
religious profession, III, 265.
Formularies for petitions, V,
440 ff.
Fortv Hours Devotion, IV,
368; VI, 233 f.
Forum competens, VII, II ;
ad deducla, IV, 505; exter-
oogle
Original from
UNIVERSITY OF WISCONSIN
INDEX
541
-
-
num-intcrnum, II, 181 fF. ;
VIII, 77; absolution in both,
VIII, 148 f . ; from apostasy,
heresy, schism, VIII, 280;
jurisdiction, VIII, M&
Foundations, pious, VI, 610.
Fractura etiormis, VI, 95.
Francis, St, Franciscans, III,
10 f.
Freedom, for clerical state, IV,
451; of conscience, V, 156 f . ;
VIII, 521 ; of election, VIII,
484 f.
Freemasons, sects of, III, 427
f. ; absolution, IV, 296 f . ;
burinl, VI, 154; h. Commun-
ion, IV, 232; cremation, VI,
101 ; marriage, V, 155 f.;
penalty, VIII, 339.
Free status, as to marriage, V,
70 f. ; 286.
Fructus, VIII, 391.
Frustrated crime, VIII, 57.
Fugitives, religious, III, 381 f. ;
penalty, VIII, 472.
Fundatae missae, IV, 183 f.
Funds of churches, VI, 61 f. ;
of disabled priests, VII,
434 fF. ,
Funeral rites, ancient, VI, 101 ;
eccles., VI, 115 ff.; 139; of
beneficiaries, VI, 121 ; of
cardinals, bishops, VI, 120;
of religious, VI. 122; of
guests and students, VI, 124;
fees, VI, 144 f . ; mourners
and emblems, VI, 141 ; pro-
cessions, VI, 140; conveying
of bodies, VI, 115.
Furiosi, as to baptism, IV, 62.
Gambling forbidden, II, 97.
Games, II, 87.
General superior, III, 114 f.
Gifts, to religious. III, 278: for
judges, VII, 71.
Glagolitic language, IV, 159.
Glossae. Glossatores, I, 52 ff.
Godparents, see pcrtrini; as to
marriage, V, 216 f.
oogle
Good Friday, Mass, IV, 161 ;
VI, 220.
Good Shepherd Sisters, III, 22.
Government of religious, III,
95-
Gratian's Decree, I, 30 ff.
Graves, desecration of, VIII,
3i8.
Gravity, of censure, VIII, 115
f. ; of crime, VIII, 14 f.
Guardians, of children, IV, 54;
of minors in court, VII, 97
ff. ; non-catholic, VIII, 297
f. ; choice of burial, VI, 127;
of religious, III, 105.
Guests, burial of, VI, 124; in
private oratories, VI, 82; in
religious houses, III, 141 f.
Guilt, VIII, n ; 24 f.
H
Habiles-inhabilts ivre, III, 116
f.; V, 224..
Habit of novices, III, 236; of
religious, III, 71; 309 f.
Handling of s. vessels, VI, 286.
Hatred of people, VIIT 415.
Hattonis Capitulare, I, 27.
Heads uncovered, VI, 205.
Heretics, as to administration
of Sacraments, IV, 21 : books
of, VI. 468; 483: burial, VI,
IS3; VIII, 360; churches of,
IV, 173: cooperation with,
VIII, 287 ff.; definition of,
VI, 334; marriage, V, 144;
299 ; Mass for, IV, 143 ; pen-
alty, VIII, 276 f.; 295; orders
received from* VIII, 448.
Hermaphrodites, IV, 445; V,
172 f.
Hierarchy, II, 7; 41.
Hicronymites, III, 13.
Holydays, VI, 170 ff.
Holy Ghost, Fathers of the,
III, 18.
Holy Office, II, 250; IV, 551;
V, 406, III, no.
Holy Saturday, Mass, IV, 161 f.
Holy Writ, I, 12 f.
Original fro ni
UNIVERSITY OF WISCONSIN
542 INDEX
Homicide, desecration by, VI, 84; 384; power to establish,
36; irregularity, IV, 488 f. ', V, 90 f. ; in renewal of con-
penalty, VIII, 409. sent, V, 381; to orders, IV,
Hospitallers, Brothers, III, 17. 496 f. ; to religious state, III,
Hospitals, III. 67; VI. 387; 314-
546. Impcritia, inexperience, II, 570;
Hour, for saying Mass, IV, VII, 414.
162 f. Impotency, impediment, V, 164
House, religious, III, 48; V, ff. ; reason for dispensation,
280; 322; support of, III, 82 V, 345; competent court, V,
f. ; permission, III, 86 f. ; of 40s.
novitiate. Ill, 231 f- Imprimatur, VI, 438; 45a.
Hunting, chase, II, 87. Impubcres, who, II, 10; as to
Hyperdulia, VI, 187; 235. h. Communion, IV, 239; in
Hypnotism, VIII, 29. court, VII, 99 f . ; as to crime,
VIII, 37; 100; as to enclo-
I sure. VIII, 370; for election,
II, 129 f. ; as to marriage, V,
Idoneus, for office, II, in. 162 f. ; 344.
Ignorance, in law, I, 85 ff. ; as Imputability. as to crime, VIII,
to crime, VIII, 23; 31 ff. ; 11 f. ; 23 ff. ; reasons dimin-
~
98 ff. ; affected-crass-supine, ishing, VIII, 76 f.
VI
III. 32 f. ; 98 ff. ; invincible- Inadvertence, VIII, 33.
vincible, tb.; of confessor, Ineardination. II. 50 ff. ; of
VIII, 138; in attempted mar- religious, IN, 288; 376 f.
riagc, VIII, 478; of impedi- Incidental, VII, 282; 333.
merits, V, 392 ; no excuse. IV, Incitement to insubordination,
501 ; not presumed, V, 229. VIII, 347 f.
Illegitimate, as to baptism. IV. "In cocna Domini," VIII. 4.
04; as to ordination. IV, 478 Incompetency, absolute-relative,
f . ; as to religious state. III, VII, 13 f . ; 63; sentence, VII,
214; various kinds, V, 333. 329.
lUustrcs, VII, 222. Incompatible offices, II, 113 f. j
Images, censorship of, VI, 437; VIII, 497 f-
forbidden. VI, 475; of Inconvenience, V, 295; VII,
Saints. VI. 230; 242 f. 474: VIII, 41.
Imbecility of mind, VIII, 31; Incorrigibility, III, 400 f.
100. In drvolutivo, II, 521 ; appeal,
Immunity, of clergy, II, 64; of VII, 326; in penalties, VIII,
sacred places. VI, 9- '21.
Impede (impedirc), VIII, 3M ; Indictment. VII. 360.
^37; church property, VIII, Indignus, for election, VIII,
390; exercise of jurisdiction. 487; in rescripts, I, 144-
VIII, 348 f. Indifferentists, as to marriaee.
Impediments, in general, V, 82 V, 154 f.
ff. ; civil authority, V, 27 ff. ; Indissolubility of marriage, V,
classification, V, 93 f. ; con- 16 f.
currence of, V. it« f. ; dirt- Indults. I. 75: for religious,
ment. V. 83: 162 ff.: imped- III, 345= for domestic ora-
iens. V. 83; 135 ff-: ignorance tories, VI, 80.
of, V. 392; occult-public, V, Indulgences, applicable to dead,
jle
k ,|,, Original from
UNIVERSITY OF WISCONSIN
INDEX
543
-
--
-
-
IV", 387; collections 01, IV,
373 f. ; at dedication of
church, VT, 24; by excom-
municated, VI II, 184; gain-
ing of, VI, 381 ff. ; grant, IV,
354 ff.; loss, VI, 379; plenary-
partial, IV, 375; promulga-
tion, IV, 370 ff.; transfer of
feasts, IV, 376 f. ; traffick in,
VIII, 316; visit of oratories,
IV, 385; works prescribed,
r IV, j8i f. ; 390.
Industrie personae, I, 146.
Infallibility in teaching, VI,
323.
Infamy, civil, VIII, 248; of
fact, VIII, 245; IV, 500; of
law, VIII. 245; IV, 483; for
apostasy, VIII, 276; 280; for
desecration, VIII. 304; 318;
for duelling, VIII, 405; for
immoral crimes, VIII, 41J ;
for violence, VIII, 378 f. ; of
witnesses, VII, 208 f.
Infantes, II, 10 f.; as to Bapt,
IV, 47 f.
Infidels, children of, IV, 53 f . ;
Mass for, IV, 141.
Infirmity, bodily, mental, VII,
415.
Informata conscientia ex, sus-
pension, VII, 469 ff.; VIII,
121 f.
Informations, VII, 305 f.
Information-process in Beati-
fication, VII, 392; 396.
Ingressus, benefices. VI, 543;
VII, 424; ab ccclesia inter-
dict. VIII, 21s; 245.
Inhibition, VII, 124; 298.
Iniuriae, actions, VII, 149 f.
Injury, mutual, VIII. 77; to
persons, VIII, 376; public
verbal, VIII, 380 i. ; verbal
private, VIII, 410 f.
Innocent of cause of interdict,
VIII, 9X4.
Inquest, VII. 366 f.
Inquisition. VIII. 64.
Inquisitor, VII, 366 f.
Insanity, as to baptism, VI, 62
Go >gle
ff. ; as to crime, VIII, 27 f.
Inscriptions, I, 44.
Insignr, capitulum, II, 428-
Insignia, of canons, II, 445; of
Pope, II, 214 f.
In solidum. II, 185.
Insolvent clergy, II, 67 i.
Inspection, bodily, V. 424 f. ; of
schools, VI, 426; loyal, VII,
250.
Installation, of benefices, VI,
521 ; of offices, II, 106; neg-
lect of, VIII, 494 f.
Instance first, second, VII, 25;
46 ; 326 f.
Instigators to crime, VIII, 50.
Institution, neglect of, VII,
53.2; yin, 492 f.
Institutions, non-corporate, VI,
546 f.
Instructions, catechetical. VI,
343 f. : religious, VI, 423 ; of
religious, III, 129 f.
Instructor actorum, VII, 39.
Instrumenta at trials, VII,
253 ff.
Instruments for ordination, IV,
537 f- .
In suspenstvo, appeals, II, 521 ;
VII, 326; as to penalties,
VIII, 123; 238.
Intention, of the donor, IV, 180
f. ; for gaining indulgences,
IV, 382; habitual, IV, 177;
for marriage, V, 239 f. ; for
ordination, IV, 541 f.
Intentionarius, IV, 201 ; 210.
Intercourse, social, with excom-
municated, VIII, 193 f.
Interdict, history, definition,
Vlir, 164; 184 f.; 195 f.;
division. VIII, 197 f.; who
mav inflict it, VIII, 108 f. ;
effect, extent, VIII, 200 ff.;
modifications, VIII. 204 f. ;
personal, VIII, 209 ff.; safe-
guarded, VIII, 354 f .; vindic-
tive. VIII, 24S.
Interest, VI, 608.
Interference of third person,
VII, 332; in election, VIII,
485 f-
Original from
UNIVERSITY OF WISCONSIN
544
INDEX
Interlocutory sentence, VII,
Internuncios, Apostolic, II, 384.
Interpellation, V, 352 ff.
Interpretation, of laws, I, 93
ff.; of oaths, VI, 316; of
penalties. VIII. 78 f.; of re-
scripts, 1, 136 ff.
Interpreter, for confession, IV,
340; at court, VII, 88; for
marriage, V, Z52.
Interrogatories of witnesses,
VII, 225 f.
Interruption, of acts in censure,
VIII, 126; of lawsuits, VII,
181; of novitiate, III, 233 f.
Interstices, IV, 461 ff.
Intervention at court, VII,
295 f.
Intimation, of removal, VII,
443; of summons, VII, 166.
In titulum, parish, II, 510.
Intra annum, IV, 199 f.
Introductio in clausuram, VIII,
370 ff. ; corporalis, II, 106.
Introduction of a case, VII,
396 f-
Investment of money, III, 181.
Invitation to resign, VII, 419 f.
Investiture, II, 105.
Invocative blessing, IV, 566.
Irregularity, IV, .176 ff. ; ex de-
fectu, IV, 478 f.; ex delicto,
IV, 484 f.; when incurred,
IV, 495 ; ignorance, no ex-
cuse, IV, .soi ; multiplied, IV,
502; Ordinary's power, IV,
504 f. ; sentence ex informata
conscientia, VII, 477; from
excommunication, VIII, 191;
from interdict, VIII, 213;
from infamy, VIII, 246;
from administration of sac-
raments. VIII, 430,
Irritanlrs, leges. I, 84 ff,
Irritum, rcscriptum. I, 135 f.
Irritation of vows, VI, 290,
Issue in pleading, effects of,
VII, 17.J ff., 176.
Ivonis Carnotensis Dccrctum,
Panormia, I, 29.
lanuis clausis. VIII, 205.
Iutnlati, canons, II, 456 ff.
Iudex instructor, V, 431, VII,
26.
Judicium ecclesiasticum, VII,
3-
Iuramentum aestimatorium.
VII, 278; decisorium. VII,
279 ; supple: > r-: VII, 274 f .
lus canonicum, ecclesiasticum,
poniificium, I, 1 ff . ; ad
rem in re (see Law), II, i±$,
153; VIII, 493 f.; gladii,
Vlir, 63 f.; metatus, II, 67;
VI. 10; patronatus, II, 106;
11?; VI, 524 ff.
Iustitiae titulus, IV, 78.
Joseph, St., marriage of. III,
259 f.; Sisters of, III,
22.
Judge, body of, V, 416; VII,
34 f . ; competency, excep-
tions, VTI, 59 f. ; duties of.
VII, 66; in matrimonial
cases, V, 411 f . ; penalties
for, VII, 72; in penal laws.
VIII. 83; 240; a quo, ad
quem, VII, 321 f. ; as to sen-
tence, VII, 311 f.; VIII,
88 f.
Judiciary form, VII, 285; 474;
wayj IV, 552.
Jurisdiction, contentious-volun-
tary, II, 180; ordinary-dele-
gated, II, 171 f. ; 174 f. ; ces-
sation. II, 187 f . ; interpreta-
tion, II, 177 f . ; for confes-
sion, IV, 252; 255; 260; of
excommunicated, VIII, i8g
f. ; suspension from. VIII,
221; impeded, VIII, 331;
337: 338: of religious supe-
riors, III, 103 f. ; extent. II,
179 f-
K
Kleptomania, VIII, 29.
Knowledge, through confes-
oogle
Original fro ni
UNIVERSITY OF WISCONSIN
I
INDEX
545
sion, IV, 303; deposition of
witnesses, VII, 226 f.: of in-
validity of marriage, V, 238;
required for orders, IV, 457
f.; as to crime (see ignor-
ance), VIII, 24.
Lacticinia, VI, 182.
Lacunae legis, VIII, 78.
Language, liturgical, IV, 157-
Lapsi, VIII, 42.
Latae sentential, VIII, 74; 77 \
92; 279; 287; 308; 317; 408;
459; excommunicati vitandi,
VIII, 174 f. ; multiplied cen-
sures, VIII, 125 f.; for deg-
radation, VIII, 263; for
deposition, VIII, 261; pre-
sumed, VIII, 166: in remit-
ting penalties, VIII, 109: sus-
pension, VIII, 318; vindictive
penalties, VIII, 227; 237; 240.
Latria, VI, 187.
Laudalio delicti, VIII, 52.
Laurin, I, 18.
Law, appeal from, VIII, 328;
335 ff-: canon, study of, I,
1 ff. ; 49 ff. ; civil, I, 100 ; col-
lections of. I. 20 ff. ; cessa-
tion, I, 103 ; definition, divi-
sion, I, 2 ff. ; 80 f. ; ecclesi-
astical merely, I, 9>7 ; of Guar-
antees, I, 23s ff. ; VIII, 385;
natural, I, n; general-par-
ticular, I, 89; private-public,
I, 80; 103; interpretation, I,
93 f. ; obligation, I, 4; 83 ff.;
promulgation, I, 80 f. ; old
and new, I, 60 ff. ; 77 *« I
science, I, 6 ff. : sources, I.
9 ff. ; penal, I, 98 f., subject,
I, 87 f. ; unwritten, I, 17.
Lawgivers not subject to pen-
alties, VIII, 94.
Lawsuits for church-property,
VI. 588-
Lay-brothers. Ill, 109.
Lay-judge, in crime, VIII, 364;
in marriage cases, V, 402.
Laymen, laity, name, II, 42;
associations, III, 425 ff. ; as
to books, VI, 443; distribut-
ing h. Communion, IV, 214;
as to censures, VIII, 166;
as to election, II, 57; saying
Mass and trafficking in sti-
pends, VIII, 305; 3n; for-
bidden to preach, VI, 362;
as to offices, II, 57; reduction
to lay-state, II, 193 f.; their
rights, III, 421 ff.
Lazarists, III, 18.
Leaving religious state, III,
371 f-
Lectura arbor is, V, 202.
Legal actions. III, 194.
Legates of R. Pontiff, II, 278
f . ; their privileges, II, 62;
VIII, 365; 379- .
Legitimation of children, V,
08; 119 L: 335 ff.
Lenten fast, VI, 180 ff. ;
preaching, VI, 367.
Lethargy, IV, 64.
Letters, admonition by, VII,
405; apostolic, VIII, 296;
dimissorial. IV, 425 ff. ;
VIII, 450; 513; registered,
VIII. 268: of religious, III.
330; testimonials, IV, 513 ff.
Levarc in baptisntum, IV, 80.
Levis vk'cndi ratio, VII, 417.
Lex dioecesana-turisdictionis
III. 38.
Libellus, change of, VI, 441;
VII, 178; 157 ff.; pacis, IV,
33<>-
Liber Sextos, Septimus, I, 38
ff-; 47.
Liberty of Church violated,
VIII, 334 *•; 376.
Liceniia for hearing confes-
sions, IV, 252.
Life in common, III, 45 £.;
303 i-
Ligamcn, impediment, V, 173 "\
Light, tabernacle, VI, 225.
jle
Original fro ni
UNIVERSITY OF WISCONSIN
546
INDEX
Limit of jurisdiction, IV,
275 *.
Limbs amputated, VI, 101.
Lines, of affinity, V, 208; of
consanguinity, V, 202; col-
lateral, V, 204 f.; direct, V,
202 f.
Litanies approved, VI, 108 f.
Literature of Canon Law, I,
52 f.; 56 ff.
Litis contcstatio, VII, 173 ff.;
instantia, Vll, 180 f.
Littcro* dimissoriae, IV, 425
ff, ; graliae-iustiliae, I, 14 •
124 :_ tcstimoniales, IV, 513 ff.
Liturgical time, I, 115 f.
Liturgy, approbation of, VI,
190 f . : books of, I, 73 f-I
of Orientals, IV, 27 f.; time,
I, US f-
Loaning of sacred things, VI,
603.
Loreto, Sisters of, III, 22.
M
Machinari, VIII, 342.
Magisterium Ecclcsiae, VI,
318 ff.
Mail, registered, for summons,
VII, 169.
Majority vote, II, 26.
Management, forbidden, II, 91.
Mandans, as to abortion, VIII,
400; as to burial, VIII, 358
f.; as to crime, VIII, 50; as
to elections, VIII, 484; as
to marriage, V, 251 f. ; as to
rescripts, I, 150; in usurpa-
tion, VIII, 388.
Mandatum apostolicum I, 145;
dc consecrawio, IV, 414;
VIII, 444-
Mandate of attorneys, VII, 113;
ad litcs, VII, 114.
Mansionarii, II, 427; 429.
Manualia stipendia, IV, 183 f.
Manufacturing of relics, VIII,
315.
Maranatha, VIII, 170.
Mare Magnum, III, 36 f.
Marists, III, 18.
Marriage, bona of, V, 12 f.;
canonical reasons, V, 124 ff. ;
civil, V, 4 f. ; of clerics and
religious, III, 209; IV, 487;
V, 187 ff.; VIII, 475 ff.: of
conscience, V, 315 n. ; con-
tract. V, 13; definition, V,
2 f.; effects of, V. 524 ff.;
end of, V, 12; by excom-
municated, VIII, 182; im-
pediments, V, 81 ff . ; instruc-
tions, V, 49; 78; mixed, q.v.
names, V, 15; mixed, forbid-
den, VIII, 297 f., 452 f. ; as
bigamy, VIII, 412; power of
Church and State. V, 22 ff.;
27 f. ; properties, unity, in-
dissolubility, V, 16 f. ; revali-
dation, V, 379 ff. ; sacrament,
V, 12; tic, dissolved, V, 173
f-; 3fy f*l vow of virginity,
V, 258; second marriage, Vr
397 f.
Martyrs, VII, 386; 398.
Mary, Bl. Virgin, VI, 187, 235.
Mass Holy, IV, 126 ff.; appli-
cation of. IV. 142 ff. ; Dona-
tion, IV, 134 ff. ; concelebra-
tion, IV, 127 f. ; disposition,
IV, 140 ; fast before, IV, 141 ;
first, IV, 149; for excom-
municated persons, VIII,
185 f. ; by non-priests, VIII,
305 f-I obligation of saying,
hearing, IV, 132; VI, 172 f . ;
preparation-thanksgiving, IV,
146; reduction of, VI, 615
f . ; vestments. IV, 147 f. ;
without server, IV, 150; pro
populo, II, 360 f.; 455; 492;
549 ff.; conventual, II, 455;
III. 325; ordination, IV, 529;
private, solemn, conventual,
lecia, parochial, IV, 215 f. ;
pro sponso ct sponsa, V, 307 ;
398; vicar-capit., II, 49a.
Master of novices, III. 239 ff.
Maternity homes, III, 67.
Go >gle
Original from
UNIVERSITY OF WISCONSIN
!
INDEX
547
o
Matrimonium, cotisummatum,
ratum, V, 21 ; 341 ff.; 430;
leyilimum, putativum, ib.;
conscientiac, V, 315 f. ; figura
et species, V, 213; baptiza-
torum, V, 22 f. ; bona. V, 12
f.; competent court, V, 405
1.
Matter, of baptism, IV, 67 f. ;
confirmation, IV, 97 f. ; h.
Eucharist, IV, 152 f.; pen-
ance, IV, 338; extreme Unc-
tion, IV, 396 f. ; matrimony,
V, 11 f. ; spiritual, mixed,
VII, 4; 8; 99.
"Maxmia cura," VII, 405 ff.
Medicine, forbidden, II, 89.
Mendicants, exemption, origin,
III, 12; 34 ff.; property-
right, III, 177 f.; 283; prece-
dence, II, 40; III, 63 f.;
quest, III, 83 f.; 347 f-
Mens rea, VIII, 32; 47.
Mercedarians, III, 13.
Method of procedure, VII, 9;
in civil cases, VII, 68;
in criminal cases, VII, 69;
355 ff-.
[Metropolitans, name, rights
etc., II, 2S8 ff. ; coercive
power, VIII, 85; devolutive
power, II, 481 f.; 485 f-I priv-
ilegiutn canonis, VIII, 376 f.
'Mid wives, in marriage trials,
, V. 425.
Military, chaplains, II, 514; as
to marriage, V, 280; orders,
III. 23: service, II, 65 f . ; 93
1; IV, 499-
Minimi, III, 12.
Minister, of baptism, IV, 37
ff. ; 41 f . ; of confirmation,
IV, 100 f. : of penance, IV,
251 f . ; of sacramentals, IV,
560; disqualified by infamy,
VIII. 246 f.: suspended from
ministry, VIII, 222 f.
Minors, in court, VII, 97 f. ;
in law, II, 10 ff . ; summons,
VII, 164.
Minor orders to religious, III,
352 f-
Miracles, VII, 399; 402.
'Missarum solemnia, V, 62; 307.
Missio cononica, VI, 341; VIII,
i8g.
Missions, VI, 370 ff.
Mistakes in rescripts, I, 135 f.
Mixed marriage, conditions, V,
147 f • ; duties of pastors, V,
153; non-catholic ministers,
V, 149 f-; as to form, V,
300; reasons for forbidding,
V, 142 ; rites, V, 208 f . ; pen-
alty, VIII, 297 f.i 45^ f-
Mixti fori, matter of. VII, 8;
357; VIII, 21.
Moderamen inculpatae tutelae
VIII, 42.
Moderari publication?*, VI, 440.
Moderation in censures, VIII,
132.
Modo, specialissimo, speciali,
simplici, VIII, 131 f.
Monasticism. Ill, 1 f.
Monialcs, Nuns. Ill, 48;
churches of, VI, 129.
MonsTers, IV, 52.
Month, I, 116.
Mortal sins, IV, 338.
Mortgages, VI, 603.
"Motu proprio," I, 14; clause,
1. 133 f.
Mourners, VI, 141 i.
Multiplication of censures,
VIII, 124 f.
Munera sordida. II, 66 f.
Music, churchy VI. 208 ff.
Mutes, as to indulgences, IV,
395-
N
Names, Christian for baptism,
IV, 73 f. ; of religious insti-
tutes, III, 73.
Necessitas medii, IV, 33; VI,
321.
Necessity of absolution, VIII,
141.
Neglect of appointment. II,
>ogle
Original from
UNIVERSITY OF WISCONSIN
548
INDEX
116; abbatial blessing, VIII,
503; decorum, VII, 465; cere-
monies, VIII, 456 f. ; epis-
copal consecration, VIII,
499; installation, VIII, 494
£. ; ratification, VIII, 492.
Ncgotiatio, forbidden, II, 95
ff.; VIII, 460 £.; with
Masses, IV, 186.
Neophytes, II, 13; IV, 500.
Nomination of indignus, VIII,
174; 487.
Nomocanones, I, 21.
Non-catholics, children, IV, 56;
education, VIII, 207 f.; as to
marriage, V, .302; as to or-
ders, IV, 498; as to Sacra-
ments, IV, 567; schools, VI,
414; sects, VIII, 276; not
subject to censures, VIII,
114 f.
Notary, diocesan, II, 409 *. ;
at trials, VII, 40; 405; pub-
lic. II, 90; of religious. III,
US f-
Notoriety, of fact, VIII, 16 f. ;
448; of law, VIII, 15 f.
Notorious, I, 86; VIII, 16;
crime, VII, 480; VIII. 16;
459; apostasy, V, 155; VI,
153; concubinage, V, 213;
and external, III, 401; unbe-
coming state, VIII, 459-
Notre Dame Sisters, III, 22.
Novice-masters, confessors, IV,
306.
Novices, as to burial, VI, 137 ;
as to privileges, III, 243 f.
Novitiate, admission to, III,
20s ff. ; 214 f. ; ending of, III,
250; erection. III, 229; ex-
ploratio voluntatis. III, 227;
interruption, III. 233 f. ;
master of novices, III, 237
ff. ; requisites for validity,
III. 231 f.
Novi operis nuntiatio, VII, 127.
Nullity, complaint of, VII. 56;
328 f.
Number of crimes, VIII, 91.
Nuns, (moniaies). III, 48;
VIII, 374 f.
Nuncios Apostolic, II, 284.
Nuptiae, V, 2 f.
O
Oath, definition of, VI, 310;
comtnunicatio in sacris, VI,
195 i in certain cases, for-
mula, VII, 406; at election of
religious superiors, III, 123;
dispensation from. VI, 316;
of dignitaries, of loyalty, re-
fusal, II, 347; VIII, 498; in-
terpretation of, VI, 316; ob-
ligation, VI, 312; ordina-
tion, IV, 423; 473; supple-
mentary for free status, V,
74; of parties, VII, 274; at
trials. VII, 69; 188 f.; by
witnesses, VII, 218.
Obedience, clerical, II. 71 ; re-
ligious. Ill, 45; effects of
vow of. III, 274 f.; 302.
Oblates of Immac. Conception,
III, 18; of Tor de' Specchi,
III. 1Q.
Obreptio in rescripts, I, 131.
Observants, III, 11.
Occidental Church, celibacy, II,
79.
Occult, crime, VIII. 15 f.; dis-
pensation, VIII. 240; of se-
cret societies, VIII, 343 f;
obsolutio complicis, VIII,
437-
Occupations, unbecoming the
clergy, II, 85 ff . ; unbecom-
ing the Sisters, III, 67.
Occonomus of parish, II, 564
f.; of religious, III, 148; as
to marriage. V, 273.
Offences of religious, grievous,
III, 400.
Offerings to churches, VI, 53;
55; to s. supcllex, VI, 281.
Office (officium), definition, II,
100 f . ; 426; appointment
free, II, 104 ff. ; 109 ff.; du-
>gle
Original fro m
UNIVERSITY OF WISCONSIN
INDEX
549
-
--
ration of, for religious su-
periors, III, rig; exchange.
of, II, \(& {.; incompatibility
of, II, 113 U VIII, 497 *•;
loss of, II, 154 ff. ; 163 ff.;
by excommunicated, VIII.
190 f. ; requisites for, II,
in, 5341 retention illegal,
VIII, 502; suspension from,
VIII, 218 ff.; time for ap-
pointment, II, 112: transfer
of. II, 167 f. ; vacancy of, II,
107; in writing, II, 117.
OfHcialis, II, 391; VII, 29 f.
Officials, higher, of Roman
Court, VIII, 365 ff.; aiders
in crime, VIII, 51 ; bribery
of, VIII, 510.
"Offtciorum ac muncrum," of
Leo XIII. VI. 430 ff.
Oils, holy, IV, 28 f.
Olivetans, III, 14.
Omission of duties, VIII, 511.
Onanism, V, 25*}.
Opinio communis, I, 101.
Opportune, IV, 19.
Option of cardinals, II, 235;
of canons, II, 434 f.
Oratorians, III, 18.
Oratories, definition and divi-
sion. VI, 65 f. ; as to indul-
gences, IV, 367; 385; keep-
ing of Bl. Sacrament, VI,
216; private, VI, 78; public,
VI, 70; semipublic VI, 72.
Order (ordo rcligiosus), III,
47-
Orders, in general, holy, IV,
409 ff. : minister of, IV, 412
ff. : requisites, IV. 512 ff . ;
rites and ceremonies. IV, 528
ff.; subject of, IV, 444 ff. ;
time and place^ IV, 532 ff. ;
marriage impediment, V, 187
f.; by excommunicated, VIII,
191 ; suspension from VIII,
221 f. ; simoniacal, VIII, 44s;
from censured, VIII, 447 f. ;
illegal administration, recep-
tion, VIII, 450 ff.; per
saltutn, IV, 460; VIII, 451.
Ordinarc, ordo, ordinatio, IV,
410 f.
Ordinances, appeal from, VIII,
328.
Ordinaries, as to absolution:
in normal cases, VIII, 156;
in occult cases, VIII, no; in
public cases, VIII, 109; as
to administration'- aliena-
tion. III. 188; V, 592
ff.; VIII, 393; altars, conse-
cration of, VI, 92; appoint-
ment to offices, II, 104 ff. ;
beatification, VII, 390 f. ;
407; cemeteries, blessing of,
VI, 104; censures of books,
VI. 434 ff.; 476; VIII, 296;
churches, building, consecra-
tion of, VI, 3 f. ; 13; 92;
corner-stone blessing, VI, 16 ;
examination of ordinands,
IV, 523 ; fasts and feasts, VI,
162 f. ; house of God, VI,
46; images, blessing of, VI,
243 ; ^ indulgences, IV, 357
ff.; irregularities, dispensa-
tion from IV, 504 f. ; liturgy,
VI, 201 ; Mass. permission
for saying, IV, 171 f. ;
Mass-stipends. IV, 191 f . ;
209 f. ; marriage, banns, V,
66; formalities, V, 87 f. ;
96 f.; 106; 112 f.; 274;
Pauline privilege, V, 368 f . ;
sanatio, V, 369; trials, V,
407 f. ; pensions. VI, 513;
pious foundations, last wills,
VI, 612 f.; 571 f.; preaching,
VI. 351 f. : property of
churches, VI, 578; religious
institutions, foundation of,
III, 87: religious subject to,
in, 99 f.; 125 f-; 526 *•;
election of superiors. III,
124; property. III, 179 f. ;
power over houses. Ill, 341
ff. ; dismissal of, III, 391 f. ;
visit of. III, 136 f. ; con-
fraternities, IN, 432 f. ;
oogle
Original fro m
UNIVERSITY OF WI5CGNSI
550
INDEX
schools, VI, 424 ff.; semi-
naries, VI. 388; sacramentals,
IV, 569; Sacrament, HI., keep-
ing of, VI, 217; taxes and lev-
ies, VI, s6' ff.; testimonials,
IV, 513 ft. ; Dispensations and
faculties: I, 178; IV, 261 f.;
q. v. Judiciary power: re-
moval of pastors, VII, 425
ff. ; priests' fund, VII, 436 ff. ;
transfer of pastors, VII, 446
ff. ; executor of sentence,
VII, 348; plaintiff, VII, 103
£. ; criminal inquest, VII,
369; suspension ex infor-
mata conscientia, VII, 47°
ff. ; Reservation: of sins, IV,
316; of censures by law,
VIII, 130; of papal cases,
VIII, 135 f. ; restriction of,
VIII, 134 i-; Coercive
Power: as to interdict, VIII,
199; as to penal remedies,
VIII, 268; as to penalties
adding, pardoning, VIII,
204; 107; as to penances,
VIII, 273; as to suspension,
VIII, 228; as to various
crimes, q.v. (see Bishop).
Ordincs maiores, minores, II,
44 i 41-
Orientals, and the Code, I, 72
{.; absolutio compHcis, VIII,
437; begging, III. 349; bread
for Sacrifice, IV, 222 f. ;
celibacy, II, 79; Freemasons,
VIII, 343; liturgy, IV, 27 f.;
marriage. V. 291; 297; 301 ;
ordination. IV, 530; as to
penalties. VIII, 96; profes-
sion of faith, VIII, 504; re-
ligious state, III, 214.
Origin as to ordination, IV,
422.
Ownership, naked. III, 277 f.
Pachomius, St.. Ill, 1.
Pammachius, III, 4.
Papal altars, IV, 174 f.; bless-
ing, IV, 359; institutions, III,
Papers, investigation of, VII,
245 f.
Pardon of penalties, who
grants, VIII, 106 f.; condi-
tional, VIII, 238.
Parents, as to baptism, IV, 53
f. ; catechetical instructions,
VI, 349; consent to marriage,
V, 79; duties to children, V,
i^o; in need, III, 213.
Parish, better, VII, 431; in
charge of religious, III, 323
f. ; as to confessions, IV, 256
f. ; as to confraternities, III,
454 /- ; division of, VI, 506
fT. ; incorporation of, II, 514
f. ; 560 f. ; as to domicile, II,
14 f. ; election to, II, 524;
erection of, II, 201 f.; as to
interdict, VIII, 207 ff. ; as to
marriage, V, 278 f. ; name of,
II, 505; national, II, 201 f . ;
origin, II, 50s f. ; reservation.
II, 523; union of, VI, 501;
5*2 i.
Parish priest of chapters, II,
453; origin (see pastor), II,
505 f-
Parochi consuitores, II, 419 f. ;
VII, 406; 430.
Participation, in crimes, VIII,
47 ff. ; 100; in duelling, VIII,
404 f.
Paschal Communion, IV, 238 f.
Passion, in crime, VIII, 43 ;
100.
Passionists, Ill, 17.
Pastoral duties, neglect of,
VIII, 464.
Pastors, appointment of, II,
455 ff.; as to baptism, IV,
38; charitable works, II, 554
f.; duties, in general, II, 543;
552 f . ; as to clerical voca-
tions, VI, 376; as to cate-
chism, VI, 343; as to strange
preachers, VI, 360; neglect
>ogle
Original fro m
UNIVERSITY OF WISCONSIN
INDEX
5Si
--
of, VII, 464 f. ; examination,
concursus, II, 527 ff. ; fu-
nerals, VI, 133 f. ; hearing
confessions, IV, 256 f . ; 307
f.; irremovable, II, 517; VII,
409 ff. ; marriage, V, 42 ; 57 ;
102; 275 f. ; 271; Mass for
the people, II, 540 f.; parish-
books, II, 556 f.; VIII. 596
ff. ; religious, II, 520; III,
360 f. ; VII, ^42; removable,
II, 517 f-; VII, 441 ff-: resi-
dence, 11, 545; vii, 449 ff.;
rights parochial, II, 536 f.;
qualities, II, 516 f.; proces-
sions, VI, 264; sick-calls, II,
554; unity and possession,
II, 534 f-I transfer, VII,
445 ff.
Pastor bonus, IV, 128 f.
Patriarchs. II, 286 f.
Patrimony, title to ordination,
IV 467.
Pa trim, of baptism, IV, 75 ff.;
of confirmation, IV, 118 ff.;
of duels, VIII, 405.
Patron, of churches, VI, 26;
Saints, VI. 240.
Pauline Privilege, V, 346 ff. ;
373
Paulists, III, 18.
Peculium forbidden, VIII, 480.
Pedagium, II, 66.
Pedum rectum, II, 216.
Penal laws, VIII, 12; abroga-
tion of. I, 63; 78; VIII. 95;
remedies, VIII, 71 f.; 264 ff.
Penalties, VIII, 58 ff.; history
of, VIII, 62 f, ; cessation of,
VIII. 230; definition. VIII,
66 f.; kinds. VIII, 69 f.;(in
particular, VIII, 112 ff . ; vin-
dictive, VIII, 71; 235 ff.;
determined, VIII, 72; un-
determined, VIII, 72 f.; pre-
ceptive, VIII, 73: 90; inter-
pretation of, VIII, 78 f;
application of, VIII, 89 ff. ;
liable who, VIII, 93 ft.;
when taking effect, VIII, 102
ff. ; remission of, VIII, 106 ff.
Penance, Sacrament of, IV,
249 ff. ; minister of, JV, ib.;
place of, IV, 350; reservation
of sins, IV, 311 ff . ; subject
of. IV, 337 ff. ; wholesome,
IV, 297; as penalties, VIII,
71 L; 263; 271 ff.
Pension, of benefices, VI, 573;
of pastor, VII, 432; suspen-
sion from, VIII, 249; 257;
title of ordination, IV, 468.
Penuria saccrdotum, IV, 136.
People's consent not required,
II. 47-
Pcrcussio clericorum, VIII,
376 ff.
Peregrini, I, 90 f; II, 14 ff.;
as to baptism, IV, 38 f.; as
to confession, IV, 283 ; as to
court in Rome, VII, 19; as to
penalties, VIII, 05.
Perfection of religious state,
III. 43 f-
Perjury, VIII, 309 f.
Permission for rel. house, III,
86 f.
Per modum actus, VI, 80; 162;
217.
Perplex case, V, 105 f.
Persona tnoratis (see corpora-
tion), n, 1 l; 23 ff.
Personal appearance in court,
VII. 96.
Personatus, II, 426.
Persuasio iuris, I, 107.
Petitory action, VII, 120;
141 f.
Pews in church, VI, 208.
Philosophy, III, 294; VI, 398.
Phrenesis, IV, 64.
Physicians, in marriage cases,
V, 425.
Place for baptism, IV, 85 f.;
command or prohibition to
stay in, VIII, 258; for h.
Communion, IV, 245 ; for
Confirmation, IV, 116; for
examining witnesses, VII,
221 ; as to interdict, VIII,
166; 208 f. ; for marriage, V,
321 f.; for Mass, IV, 168 f.;
>ogle
Original from
UNIVERSITY OF WI5CGNSI
552
INDEX
for novitiate, III, 230; 240;
for ordination, IV, 545; for
postulancy, III, 202; for
publication of banns, V, 60
f. ; for sentence, VII, 315;
for summons, VII, ibo; for
trials, VII, 83.
Placetum regium, VI, 339;
VIII, 330 f.; 33S
Plaintiff, in marriage cases, V,
416 f.; at trials, VII, 95 f.;
religious as, VII, 101 ff. ;
must prove, VII, 193.
Podagium, II, 67.
Poena, VIII, 66 f.
Poenitcntiaria, S., II, 265.
Poenitentiarii, II, 266.
Polyandry, V, 3.
Polygamy, V, 3; 17 f.; 357.
Pomp as to interdict, VI II,
206 f.
Ponetus, VII, 195.
Pontificals, of abbots, III, 29
f. ; of bishops, II, 356 f. ; sus-
pension from, VIII, 223 f.
Pope, election of, II, 117 f. ;
VIII, 321 f. ; insignia of, II,
214 f. ; laws, decrees, ordin-
ances, VIII, 338; obedience
to, III, 95 f.; VIII, 324;
pardon of penalties, VIII,
107; power, II, 207 ff.; VIII,
84; promoted by, IV, 414;
sacred person, VIII, 378;
supreme administrator, VI,
577: teaching: office. VI. 325;
titles, II, 214 f. ; verbal in-
juries to, VIII. 380 f.
"Populis" of Gregory XIII, V,
361.
Portio paroccialis, VI, 146.
Positions at trials. VII, 189.
Positive act of will, V, 239 f.
Possession, action, VII, 120;
141 f.
Post, forsaking of, VIII, 500.
Posters, for banns, V, 62; for
Mass-stipends, IV, 200.
Postulancy for religious. III,
201.
Postulation of indignus, VIII,
oogle
487 f'» of religious. III, 127;
term for election, II, 149.
Postulator for beatification,
VII, 387.
Poverty religious, III, 45;
273 f-
Power, abuse of, VIII, 505 f . ;
delegated, ordinary, II, 170
f. ; of religious superiors,
III. 103 ff.; of order, II,
191 f. ; of Church in mar-
riage, V, 22 f.
"Praesumpscrit," VIII. 90; 299;
304;352; 392;478; 498; 502;
513 f.; 510.
Praesumptio iuris, de iure, VII,
268 f.; 336.
Praemonstratensians. Ill, 9.
Pracpositus, II, 425.
Praestationfs, II. 541.
Prayers for absolution, IV,
294; for excommunicated,
VIII, 184.
Preachers, preaching, VI, 338
ff.; 351 ff.
Prebendaries, II, 430 f.
Precariae, II, 108.
Precedence, II, 36 ff. ; of as-
sistants, II, 577 f.; of asso-
ciations, III, 441 ; of bishops,
II. 375 f-I of canons, II, 443
f. ; in certain cases, VII, 403
ff . ; of religious, III, 62 f. ;
of rural deans, II, 504; re-
garding funerals, VI, 144;
withdrawal of, VIII, 250.
Precept, nature, I, 104 f. ; to
non-resident clerics. VII.
455; to concubinarians, VII,
462; penalty, VIII. 14; 72;
penal remedy, VITI. 269;
who may impose, VIII, 82 f.
Precious Blood Fathers, Sis-
ters, III. 18; 22.
Precious things, III, 185.
Prefects, prefectures apostolic,
II, 200 f. ; .310 ff.
Prelates, election, name, II, 124
f.; 48 f-; "nuMus," II, 331
ff. ; religious, III, 104.
Prescription, nature of, VII,
Original from
UNIVERSITY OF WISCONSIN
INDEX
553
-
151 ff. ; as to benefices, VI,
521 ; church may use, VI,
566 ; interrupted by summons,
VII, 171; things not subject
to, VI, 567 *.
Presentation in advowson, VII,
528 ff. ; of indignus, VIII,
487 f-
President of chapter, II, 26 f.
Presumption, I, 86; circum-
stantial evidence (iuris),
VII, 268 f . 1 of condonation,
V, 373 ; gravis, levis, violenta,
VII, 272.
Presumptive baptism, V, 146.
Pretext, VIII, 438; 520.
Prevention of admonition, VII,
405; of competency, VII, 23.
Preventive power, VIII, 87.
Priest's funds, VII, 434 ff.
Prima facie evidence, VII, 259.
"Prima Sedes," VII, IT.
Principals in crime, VIII, 50 f.
Priors cloistral, III, 121; con-
ventional, III, 105.
Prisca, I, 21.
Private baptism, IV, 35 **■ : de-
fence, VIII, 290 f. ; Mass
and prayers, IV, 215; VIII,
185 f.; 205 f.
Privation for attempted mar-
riage, VIII, 477". in< spirit,
goods, VIII, 66 f.; in cen-
sures, VIII, 118 f.; as pen-
alty, VIII, 249; for clerics,
VIII, 256; of episcopate,
VIII, 499; for non-resident
clergy, VIII, 463; or office,
II, 163 f. ; of wearing cler-
ical dress, VIII, 259.
Privileged altars, IV, 365 f.
Privileges, I, 75; 152 ff. f abuse
of, I, 169; acquisition of, I,
154 f. ; communication of, I,
157 ?•; in, 333 f-; II., 524;
division of. T, 153 f. ; inter-
pretation of, I, 162 f. ; loss of,
I, 164 f. ; use and imn-usc, I,
168 f. ; of novices. III, 243 f. ;
of religious, III, 333 f.;
Pauline, V, 346 ff.; of
Go >gle
priests for confirmation, IV,
101 Li by excommunicated,
VIII. 188 ff.; fori violated,
VIII, 363 f . ; canonis vio-
lated, VIII, 376 f.; lost by
apostasy, VIII, 470 f.
Privitegia, I, 13; canonis, II,
58 f. ; fori, II, 59 ff. ; imtnu-
nilatis, II, 64 f . ; loss, II,
68 f.
Probatio plena, semiplcna, VII,
192.
Procedure, in general, VII, 3
ff. ; criminal, VII, 380 f. ; or-
der of, VII, 75 I-: ordination
trials, IV, 550 ff. ; for irre-
movable pastors, VII, 409
ff. : for removable pastors,
VII, 441 ff. ; against non-
resident clerics, VII, 449 f . ;
against concubinarians, VII,
457 ff- ' against neglectful
pastors, VII, 464 f.; ex infor-
mata conscientia, VII, 475 ff . ;
in inflicting penalties, VIII,
86 f. ; in matrimonial cases.
V. 400 ff.
Processus informatiznts, II,
344 f-
Processions, VI, 255 ff. ; of
confraternities, III, 456; of
Corpus Christi, VI, 257 ff. ;
of Tertiaries, III, 447.
Proctor, VII, 198.
Procurantes abortum, VIII,
400.
Procurators, general, III, 150
f. ; of religious, III, 147 f. ;
for resignation. II, 157.
Professio fidei (text) I, 69 f..
VIII, 503 t
Profession religious, admission
to, III, 254 ff.; illegal, VIII,
M4 f. ; in danger of death,
III, 244; effects of, III, 271
ff . ; formalities, III, 263; im-
pediment, V, 189 f. : invalid,
III, 288; VIII, 474; obliga-
tions following, III, 267 f.;
renewal of vows, III, 267;
rights following, ib.; simple.
Original fro ni
UNIVERSITY OF WISCONSIN
554
INDEX
solemn. III, 253 f.; tempo-
rary, III, 257 f.
Professors of seminaries, VI,
401 ; in religious houses, III,
292 f.
ProhibenUs, VIII, 331.
Promoter fidei, VII, 388; 302.
Promoter iustitiae, II, 392; in
criminal action, VII, 360 f. ;
in dismissal of religious, III,
399; in marriage cases, V,
417; at trials, VII, 41.
Promulgation of laws, I, 80 f. ;
impeded, VIII, 332,
Proof, of baptism, IV, 95 f.;
of confirmation, IV, 124; of
ordination, IV, 548 f . ; at
trials, VII. 191 ff.
Propagation of heresy, VIII,
287 ff.
Property-right of the Church,
VI, (S49 f. ; action, VII, 120;
administration, VI, 577 ff. \
division and transfer. VI,
558; of single churches, VI,
553; of provinces, III, 178;
of religious, III, 172 ff. ; of
religious houses, III, 178 f.;
renunciation of, III, 244 Lj
277 f. ; 281 f.: in transfer
of religious, III, 368 f. ;
usurped, converted, VIII,
386 ff.
Propositions, condemned, VIII,
291 f.
Propositus of being ordained,
IV, 512.
Protection of Apostolic See,
III, 27 f.
Prothonotaries, Apostolic, II,
322.
Provocation, VIII, 43; to dis-
obedience, VIII, 327; to duel,
VIII. 40$.
"'Providcntissima," of Bened.
XV, I, 64 ff.
Province, religious, change of,
III, 48: 79; ecclesiastical,
erection of, II. 200 f.
Proxy, marriage by, V, 25 ff.
Pseudo-Isidorian Decretals, I,
24 ff.
Puberes, II, 10.
Public, crime, VIII, 15; de-
fence, VIII, 290 f. ; propriety
(imp.), V, 212 f.; sinners,
IV. 229 f.; V. 157.
Publication of banns, V, 56 ff.;
of ordination, IV, 524; of
process, VII, 301 f. ; of sen-
tence, VII, 316; of witnesses,
VII, 231.
Publisher (see editor), VI,
432; 463.
Punctatores, II, 434.
Punishment of religious, III,
338 f . ; in cases not exempt,
111,344-
Purgatio canonico, VIII, 285.
§uarto funcris, VI, 147.
uashing of actions, VII,
147. ff. .,
Quasi-domieile, II. 15; manual
Masses, IV, 185 ; parishes,
II, 201 f.; IV, 39 f-
Querela nullitatis, VII, 56;
328 ff.
Quest (see begging). III, 83
f.; 347 ff. ; for church-pur-
poses, VI, 560.
Questioning of parties, VII,
186 f. ; repeated, VII, 230;
250; of witnesses, VII, 225 f.
Questions, incidental, VII, 80;
282 ff. ; in report of religious,
HI, 463 ff-
oogle
R
Raptus. V. 192 f.; VII, 150.
Ratification of election, II, 146
f. ; neglect of, VIII, 492 f.
Ratio peccati, VII, 6.
Rationabilitas of custom, I,
no f.
Ratione sui, VIII, 139; 426.
Reading of books, VI, 463:
VIII, 295; faculties for, VI,
478 f.
Reason, destitute of, VIII, 27.
Rebuke, VIII, 267.
Original fro ni
UNIVERSITY OF WISCONSIN
J
I
INDEX
555
■
Rebuttal of pastors, VII, 425.
Reception of Sacraments from
excommunicated, VIII, 170
f. ; 182 f. ; from censured,
VIII. 447 f-; simoniacal, VIII,
445 ff.
Rcceptorcs, VIII, 288.
Rccognitio, VII, 250.
Reconciliation of churches, VI,
42 ff.
Reconsecration, VI, 8.
Rcconvcntio, VII, 79; 139.
Record of baptism, IV, 94 f.;
of church blessing, VI, 7 f. ;
of confirmation. IV, 123; of
deaths, VI, 150; of marriage,
V, 311 f. ; of ordination, IV,
548 f . ; of pious foundations,
VI, 613 f.
Recourse, II, 184; from cen-
sures, VIII, 121 f.; in cer-
tain cases, VII, 40S ; to civil
authority, VIII, 330 f . ; from
susp. ex infortnata conscien-
tia, VII, 438; if impossible,
VIII, 161; to lay power,
VIII. 337 ; in occult cases,
VIII, 241; by pastors, VII,
428; to S. Pocnitcnttaria,
VlII, 160; from vindictive
penalties, VIII, 237 f.
Rectors of churches, II, 166;
580 ff.
Recurrent es, VIII, 330; 333.
Redcmptorists, III, 17.
Reditus, VIII, 391.
Redress, legal. VII, 317; 333.
Reduction of pious obligations,
VI, 615 f.
Referees in trials (referen-
dorii), VII, 38, 54-
Regino of Priim, I, 26.
Regressus in benefices, VI,
543 ; VII, 424.
Regularcs, III, 48; as to papal
blessing, IV, 360; place of
trials, VII, 84; absolution
.from censures, VIII, 150 f.
Rehabilitation of infamous,
VIII, 248.
jle
Reincidentiae, svb poena, VIII,
142; 160.
Relapse into crime, VIII, 46.
Retolio status^ of diocese, II,
364; of religious, III, 132;
4'^3 ff.
Relationship, of blood. V,
201 f.; exception to judge,
VII, 64; not affected by in-
famy, VIII, 247; spiritual,
IV, 83; 122; V, 215 f.
Relics for altar, VI, 89; aliena-
tion of, VI, 244 f. ; authen-
tication of, VI, 247 f. ; ex-
position. VI, 2*1: VIII. 316;
sale, profanation, trading,
VT. 253; VIII, 315-
Rcligio, in general, III, 47;
crimes against, VIII, 301 ff . ;
clericalis-hica lis, III, 48 ;
exempta-iuris pontificii. III,
47 f.
Religious, III, 48; apostates,
fugitives, III, 381 f. ; as to
building of churches, VI, 15;
as to books, VI, 455; as to
catechetical instructions, VI,
347 ; as to competent court,
VII, 20; 36 f. ; as to confes-
sion, IV, 280 f. ; 310; as to
dignities. III, 354 ff. ; as to
dismissed, IN, 409 f. ; fu-
neral of, VI, r22 f.; incar-
dmated, IN, 376 f. ; as to
pious foundations, VI, 6T4;
as pastors, III, 360 f . ; as
plaintiffs, VII, 101 ff. ; as to
preaching, VI. 352 ff. ; as to
processions, VI, 259 f. ; sub-
ject to the Ordinary. Ill, 531
f.: as to penalties, VIII, 346;
379.; 450; 460.
Religious state, definition, III,
40 ff. ; leaving of, III, 371
fT- ; origin of, IN, 1 ff.; sep-
aration of marriage, V, 37^.
Remission of penalties, VlN,
106 ff.
Remissoriales littcrae, VII, 397 :
401.
Removal of assistants (cu-
Origi rial from
UNIVERSITY OF WISCONSIN
556
INDEX
rates), II, 576 f.; of attor-
neys, VII, 115; of chancellor,
II, 407 ?•; decree of, VII,
420; of irremovable pastors,
VII, 409 ff. ; of removable
pastors, VII, 441 ff. ; of
Vicar-General, II, 395 ; 405.
Renewal of marriage-consent,
V, 380 ff. ; 384-
Rent, VI, 605 f.
Renunciation of instantia, VII,
184; of property by novices,
III. 244 ff.
Repairing of churches, statues,
VI, 58 ff. ; 243; of damage,
VIII, 53; for false accusa-
tion, VIII, 424; for illegal
alienation, VIII, 394.
Rcquircrc as to marriage, V,
281.
Requisites for ordination, IV,
454 ff. ; for religious state,
111. 205 ff.
Res (see things), IV, 2 f.;
adhuc integra-non intcgra, I,
150; II, 142; VII, 171.
Rescripts, I, 124 ff.; false,
VIII, 422.
Reservation, ceases, IV, 334
ff. ; of censures, VIII, 129
ff.; disregard of, VIII, 350
ff. ; of sins, IV, 311 ff.; of
parishes, II, 523.
Residence of bishops, II, 358
f.; of coadjutors. II. 382; of
canons, II, .ic8 f.; of pastors,
II, 545 ff. ; parochial to leave,
VII, 433; procedure against
violators, pcnnlty, VII, 449
f.; VIII, 462 f. ; of religious
superiors. Ill, 128.
Resignation of benefices, offices,
II. 155 ff-; VI, 542 f-; ac-
cepted by pastor, VII, 423;
invitation to, VII, 419 f. ; to
laymen, VTII, 501 f.
Res judicata, VII, 183; 3.34 ff-
Restitutio in integrum, VII,
136; 33 x; 336 f.
Restitution fur illegal aliena-
tion, VIII, 394; of income
(fructus). VIII. 325 f.; by
religious. III, 195.
Retaining forbidden books, VI,
464; VIII, 205; sacred spe-
cies, yin, 303.
Retraction of accusation, VIII,
425.
Retreat of clergy, II, 70 f.; of
ordinands IV, 526 f. ; of pas-
tors (vacation), II, 545 {.;
of postulants, III, 202; of
religious, III, 307; of semi-
narians, VI, 403 f. ; as penal
remedy, VIII, 265.
Retroaction of laws, I, 82; of
sanatio, V, 390.
Revalidation of marriage, V,
380.
Revenues, by excommunicated,
VIII, 102 f. ; restitution,
VIII, 225 f.
Revival of censures, VIII, 142.
Revocation of jurisdiction, IV,
278 f.
Right of married persons, V,
325 ; of succession, II, 379.
Ring. II, 84; 336; IV, 148; VI,
271 f.; 421 f.
Rite (advertc), IV, 20.
Rites, of baptism, IV, 65 ff. ;
of h. Communion. IV, 244;
of confession, IV, 347; of
marriage. V, 291; 304 ff.; of
Mass. IV, 152 f.; of ordina-
tion, IV, 528 ff. ; of religious
profession, III, 263 f. ; of
sacramentals, IV, 565 f. ;
sacred as to interdict, VIII,
206 f.; various, II, 20 ff.
Roman court, II, 246 ff. ; VII,
24 ff.; tribunals, VII, 24 ff.
"Romani Pontifiris," of Pius
V, V, 361 ff.
"Romanos Pontificcs," of Leo
XIII. 111,87 ff-; 217.
Rota Romano, S., II. 267; VII,
26: 50 r
Rubrics of the Mass, IV, 156;
in scmipublic oratories, VI,
77-
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
INDEX
557
Rules as to penalties VIII, 94.
Rules, general, I, 72 f.; of reli-
gious, III, 50-
Rulhenians, as to confirmation,
IV, 104 f.; as to marriage,
V, 292; as to ordination, IV,
Sacrament, Bl., Fathers, III, 18.
Sacramentals, IV, 558 ff.; to
excommunicated, deprived,
VIII, 178 ff. ; 249; in inter-
dicted places, VIII, 204 f.
Sacraments, in general, admin-
istration, IV, 19 ff. ; indelible
character, IV, 22; exactions,
IV, 31 ; by and to religious,
III, 141; 307 f. ; rites, IV,
25; to excommunicated, in-
terdicted. VIII. 170 ff.; 213;
in interdicted places, VIII,
204 f.; by suspended clergy,
VIII, 231 f.; simoniacal,
VIII. 445 *■; *>. oils, IV, 28.
"Sacrantcntum pocnitentiac,"
IV. 341.
Sacred Heart. Ladies of the,
^ III, 22.
Sacred ministry assisted by re-
ligious, III, 322.
Saints, patron, VI, 240; pic-
tures, VI. 241 ; 243; worship,
VI, 236 f.
Salary, of pastors, II, 540 f.
Sale, VI, 604.
Salcsians, III, 18.
Saloons, IT, 87 f.
Saltum, per, ordination, IV,
460.
"Salvo iure S. Romanae Ecclc-
jiac" I, 153.
Sanatio in radice, V, 389 ff. ;
447 f-
Sanction of law, VIII, 12.
Scandal, banns of marriage, V,
63; h. communion, III, 308;
for dismissal. III, 395; 408;
marriage-dispensation, V, 101.
Scondalo remote, V, 101.
Scare, VIII, 333 f-
Schismatics, books of, VI, 468;
483; VIII. 295; burial. VI,
153; VIII, j6o; definition,
VI, 335 ; as to marriage, V,
299; penalty, VIII, 276 ff.;
as to sacraments, IV, 21.
Scholarships, VI, 394.
Scholasticus, II, 425.
Schools. Catholic VI, 411 f- ;
mixed, Iii, 68; of religious,
III. 9t-
Scienter, VIII, 299; 315; 354;
356; 446 I; 49G.
Scolopii, III, 17.
Scripture, Holy, VI, 434 f.
Scrutiny. TI, 135 f.
Sea, confession at, IV, 289 f.
Seal of confession, IV, 300 f . ;
violation of, VIII, 441 f.
Seats in church, VI, 204; 206 f.
Secrecy in certain cases. VII,
406; of crimes, VIII, 240;
dispensation from, ib.; of
marriage, V, 317; of votes,
Hi *331 of witnesses, VII,
204.
Secretariate of State, II, 274.
Sects, condemned. III, 427: at
marriages, V. 155 f ; non-
Catholics, VIII, 279; Ma-
sonic, VIII, 340 f.
Secular i7ation of church prop-
erty. III. 373 ff.; VIII. 388,
Security-going, II, 8s f.
"Scdc vacantc" II, 474 f . ; 487.
Sedcs impedita, II, 472 f.
Seisin, VII, 18; 80; 120.
Self-defence, VIII, 42; 377.
Seminaries, IV, 453; VI, 373
ff.; V, 322.
Semmaristicutn, VI, 380.
Senators, deputies, II, 00 f.
Senium, for Extreme Unction,
IV, 402.
Sentence, contents, VII. 313; of
dismissal. III, 406 f. ; execu-
tion of. VII, 346 f. ; formal-
ities, VII, 314; in matrimon-
ial cases, V, 428 f. ; ratifica-
tion of. III, 407; at trials,
VII. 308 ff.
oogl
e
Original fro ni
UNIVERSITY OF WISCONSIN
558
INDEX
Separation of married persons,
V, 309 ff. ; 376 f .
"Septttnae tnanus" V, 415;
422 f.
Sepulcher (altar), VI, 89.
Sequestration, VII, 124 f.
Sermons, in Advent and Lent,
VI, 367; incentive, VIII, 34a;
subjects. VI. 368.
Servants of religious, III, 143 f.
Server for Mass, IV, 150 f.
Servile work, VI, 173.
Servitude, as error, V, 231 f.
Servites, III, 143.
Sextum, crimes against, VIII,
413 n.; 416 ff.; 436.
Sick, allowed to vote, II, 132;
calls, II, 554; communion of,
IV, 218 f. ; confessor to sick
Sisters, III, 163 f. ; in ex-
empt houses. III, 141 f. ; dis-
missal of, III, 262.
Signatura Apostolica, II, 268:
„.VI1' 53 f-
Signs for marriage-consent, V,
249 f.; of repentance, VI,
,157-
Simony. IV, 5 ff. ; penalties
for, IV, 12 ff.; VIII, 445 f-J
49X f.
Simple priests for confirma-
tion, IV, 101 ; profession, III,
259; vows, III, 56.
Simulation, VIII, 307; 435:
Singers, at non-Catholic wor-
ship, VI, 197; religious
women, VI, 211.
"Si preces vcritate nttantur" I,
.129.
Sisters (sorores), III, 48; 67;
of charity, III, 22.
Sitting, of iudge, VII, 316.
Skullcap, II, 336 f.; Ill, 351
f.; IV. 148.
Slaves, as to orders, IV, 409;
penalty for slavery, VIII,
409.
Societies, pious, III, 416 ff.
Society of Tesus, III, 14 f.
Sodomy, VIII, 414.
Soldiers, as to banns, V, 60.
*Ie
Solemn, baptism, IV, 35; pro-
fession. Ill, 259 f.; V, 344;
vows, III, 56 f.
Solicitation, duty of denounc-
ing, IV, 341 f. ; false accusa-
tion of, VIII, 424 f.;437ff.J
witnesses, VII, 225.
Somaschans, III, 16.
Sortilcgio, VIII, 313.
Sources of penal law, VIII, 4 f.
Species of h. Eucharist, IV,
152 ff.; 155; desecration of,
VIII, 301 f.
Spiritism, VI, 203; VIII, 313.
Spolium, VII, 18; 80.
Sponsors, for baptism, IV, 75
ff. ; for confirmation, IV, 118
ff. ; excommunicated, VIII,
188.
State and Church, as to crimes,
VIII, 19 ff.; 330 f.; as to
liturgy. VI. 200; in U. S.,
I, 246 ff. (see Church). §
Status of dismissed religious,
III, 411 JL
Statuta Ecclcsxac Anttqua, I, 22.
Statutes of chapters, II, 446 f.;
of confraternities, III, 432.
Sterility, V, 172.
Stipendium pingue, II, 543 ; IV,
205.
Stipends for Masses, IV, 175;
kinds of, IV, 183 ff. ; number
of, IV 187 f.; 190; obliga-
tion, IV, 189; fixed by Ordi-
nary, IV, 191 ; stipulations
added, IV, 192 f.; traffic
punished, VIII, 311.
Stipes (altar). VI, 88.
Stole- fees, taxes, II, 542 '^re-
fusal to pay, VIII, 396.
Stone for altar, VI, 86.
Straightening marriages, V,
159 f.
Students, burial of, VI, 124 f. ;
of exempt religious, III, 141
f. ; reading books. VI, 475 f.;
of seminaries, VI, 408.
Studies, of clergy, higher, II,
74; VI, 423; of religious.
Original fro ni
UNIVERSITY OF WISCONSIN
I
INDEX
559
III, 292; of seminaries, VI,
306 ff.; of Canon Law, I,
49 ff-
Stupntm, VII, 150; VIII, 414.
Styles Curiae, I, 131.
Snbdclcgation, in general, II,
176 f.; as to marriage, V,
284.
Subjects, who, II, 17 *■'. V,
57 i . ; of baptism, IV, 46 ff. ;
of confirmation, IV, 1x2 f.;
of Extreme Unction, IV,
401 : of ordination, IV. 444 ff.
Subreptio, I, 131.
Subscriptions solicited, VIII,
348.
Subsidy, charitable, VI, 563 f.
Suffragans, II, 483*
Suffraghtm (see vote), VIII,
183 f.; 189.
Suicide, as to burial, VI, 155;
irregularity, IV, 401 ; penalty,
VIII, 403.
Summa theologiea. III, 295;
IV, 402.
Summac, I, 53 ff.
Summaria, I, 44.
Summary proceedings, III,
398; VII. 286; 40a
Summons, at trials, VII, 163 ff.
contents of, VII. 165; effect,
VII, 170; intimation, VII,
166; necessity, VII, 170.
Sunday. VI, 160.
Supcllex, sacra, VI, 267 ff.; of
departing pastor, VII, 433.
Superiors, religious, III, 47 f . ;
103 ff. ; power of higher and
lower, III, 104 f. ; duties, III,
299 ff.; general. Ill, 114 f.;
blessing of churches, VI, 6;
defendants. VII, 101 f. ; elec-
tion of, III, 121 ; feasts and
fasts, Vl, 167; novitiate and
profession, III, 214; 256;
qualities, III, 116 f . ; regard-
ing confessions, IV, 258 f.;
304 f. ; reservation of sins,
IV, 317 \ 321 f.; rights of,
III. 300 f. ; renort to Holy
See, III, 132; term of office,
III, 119 f.; visits of houses,
in, 133 ff.; VIII, 517 f.;
dimissorials, IV, 434; VIII,
5*3; as to coercive power,
penalties, VIII, 82; 85; 94
t. ; absolution from censures,
VIII, 156; as to interdict,
VIII, 199; as to enclosure,
VIII, 370 ff. ; as to apostates
and fugitives. VIII, 470 ff.;
illegal alienation. VIII, 393;
obedience to, VIII, 325.
Superstition. VIII, 312 f.
Support of churches, VI, 555;
of ministers, VI, 539 f. ; of
deposed clerics, VIII, 260 f. ;
of religious houses, III, 48:
82.
Suppression of religious insti-
tutes, III, 65 ff.; 74 ff.; 77',
of confraternities, III, 439.
Surgery, forbidden, II. 89.
Suscipere, in baptism, IV, 80.
Suspension, in general, VIII,
164 f. ; from benefice, VIII,
a 18 f.; against concubina-
rians, VII, 461 ; definition,
VIII. 217 f.; of dismissed
religious. Ill, 411 f.; a di-
vims, VIII, 217; effects of,
VIII, 218 ff.: ex injormata
conscientia, VII, 361 f. ; 469
ff. ; from office. VIT, 471;
VIII, 218 f.; forbidding or-
dination, IV, 448; partial-
total, VIII, 220 f. ; particu-
laris-communis iuris, VIII,
227; provisional, VIII, 87;
of sentence, VIII, 238 ; tem-
porary, of charges, VIII,
250; as vindictive penalty,
VIII. 2$c; for hination and
non-fasting, VIII. 305; for
insubordination, VIII. 349;
for unlawful confirmation,
VIII, 430 f. ; for hearing
confession, VIII, 433 f. ; for
sollicitatio, VIII. 439; for
illegal consecration. VIII,
444: for simoniacal orders,
VIII, 445 ff.; for illegal or-
oogle
Original from
UNIVERSITY OF WISCONSIN
56o
INDEX
dination, VIII, 450 *•> f°r
absence from conferences,
VIII, 456; for neglect of
ceremonies, VIII, 457; for
not wearing clerical dress,
VIII, 459; for fugitive re-
ligious, VIII, 472; for reli-
gious superiors, VIII, 5T3-
Suspicion of heresy, VIII, 284
f.; 361 f.; 446.
Sylvester S-, Sylvcstrines, III,
13.
Syndicus, VI, 581.
Synods, diocesan, II, 384 ff.
Tabernacle, key, VI, 221 f.;
light, VI, 225.
"Tametsi/' V, 267 ff.; 303.
Tangcre in baptism, IV, 80.
Taxative, irregularities, IV,
477= VII, 414; penalties,
VIII, 72; 244.
Taxes for dispensations, V,
130; for funerals, VI, 144 f. ;
to be fixed, VI, 565; over-
charge, VIII, 511 f. ; refusal
to pay, VIII, 396.
Teaching, office, VI, 318 f.;
condemned doctrine, VIII,
290 f. ; forbidden, VIII, 293 f.
Temporal possessions of the
Church, VI, 549 ff.; VIII,
384; of religious, III, 172 ff.
Tempus utile, continuum, I,
122 f. ; VII, 137; in elections,
II, 143; in taking office, II,
160.
Tencrc in baptism, IV, 80.
Terminus a quo, I, 1 19 f .
Tertiaries of S. P'rancis, III,
30 f.; of S. Dominic. Ill, 21
f.; secular, III, 443 f.; gen-
eral absolution, IV, 363.
Testament clergymen's, VI,
277 : who may make. VI, 570.
Testes, in general, VII, 203 ff. ;
contrarii, incerti, VII, 237;
singulares, VII. 238 i. ; «/-
ironii, VII, 213; vacillantes,
varii, VII, 237; (see wit-
ness).
Testimonials, for novitiate, III,
21s ff-; for ordination, IV,
429; 513 ff-
Text, original, VI, 434.
Theatres, forbidden, II, 02 f.
Theft, rapine, VIII, 400.
Theologicus cursus. III, 295;
IV, 458; VI, 308. m
Things, nature, kind, IV, 2 ff.
Threat of censures, VIII, 122.
Thursday, holy, Communion
on, IV, 240.
Time, for baptism, IV, 85 ff. ;
for confirmation, IV, 116 f . ;
for h. communion, IV, 24s ;
for Mass, IV, 160 f . ; for
Mass-obligations, IV, 197 f. ;
for marriage and banns, V,
60 f . ; 319 f. ; for novitiate,
If 121; III, 231; for ordina-
tion, IV, 532 f. ; reckoning
of, I, 115 ff-I for trials and
finishing of, VII, 59; 83.
Title, of basilica, VI, 49; of
churches, VI 25; honorary
of religious, III, 147: of or-
dination (see titvlus), IV,
464 ff.
Tithes, 111,29; 39; VI, 560.
Titulus, ordtnationis, IV, 464
ff. ; lack and loss, IV, 468
f. ; missionis and scrvitii, IV,
471 f. ; for religious, IV, 474
f. ; as to prescription, VII,
154; not taken away, VIII,
257: ordination without,
VIII, 450; coloratus, VII, 63.
Tolerati, excommunicated,
VIII, 173; 177; 182; 185;
suspension, VIII, 218.
Tonsure, II, 43.
Tractatus, I, 53 f. ; praevius in
election, TI, 127.
Tractus successivus, VII, 156.
Trading, trafficking forbidden
to clergy. II, 95 ff. ; VIII, 460
f.; with Masses, IV, 186 f.;
VIII, 3"; with relics, VIII,
315.
>ogle
Original from
UNIVERSITY OF WISCONSI
INDEX
56i
Trahere, VIII, 364.
Transfer, of apostates, VIII,
468 i . ; of archconf raterni-
ties, III, 460; of bishops, II,
477 f. ; of episcopal sees,
VIII, 245; of religious, III,
364 ff. ; procedure for, VII,
444 f . : from office or bene-
fice, VIII, 255; of parochial
residence, VIII, 245; effects
of, III, 368 f.
Trial, apostolic, VII, 397 n\;
delegation of. III, 407; for
dismissal of religious, III,
396 f . ; requisites for. III, 400
f. ; 400 f. ; ecclesiastical, VII,
I ff.; matrimonial, V, 400
ff.: ordination. IV, 550 ff.
Tribunals, delegated, VII, 57
f.; first instance, VII. 24;
ordinary, VII, 25; 46; for
religious, III, 398 f-J Roman,
VII, 24 ff.
Trinitarians, III, 9.
Trinity, Blessed, VI, 187.
Trustees of churches. VI, 55 f-
Tutors, II, II i; VII, 97 f.
U
United States, Church in, I,
247 ff. ; rectors, II, 166.
Unity, crimes against, VIII,
275 ff-! of marriage, V, 17-
Universities, VI, 418.
Urgent cases, absolution in,
VIIT. 158 ff.
Urgerc censuram, VIII, I5°i
eontractum, V, 43.
Ursulines, III, 22,
Usurpation of church property,
VIII, 386 ff.
Use. what III, 248: of mar-
riage, V, 266; non-use of
privileges, I, 16S.
Usufruct. III. 248.
Usus forensis, I, 99.
Utensils sacred, VI, 267 ft".
>ogle
V
Vacancy of benefices by profes-
sion, III, 286; of offices, II,
107; 115; by apostasy, VIII,
276; by not wearing clerical
dress, VIII, 459; acceptance
of non-vacant offices, VIII,
497; of episcopal see, II,
470 ff.
Vacation, of bishops, II, 358 f.;
of canons, II, 458 f. ; of pas-
tors. II. 545 f-
Vagi, I, 91 f- '. II. 18; compe-
tency as to, VII, 19; confes-
sors of, IV, 282 ff. ; mar-
riage, V, 66; 74; 76 f.; 288 f.
Vallombrosians, III, 8.
Venerable, title, VI, 237 ; beati-
fication, VII, 396.
Veritas dictorum, VII, 220.
Versions of the Bible, VI,
435 f.
Vessels, sacred, VI, 267 f.;
handling of. VI. 286.
Vestments, liturgical, IV, 147
f . ; blessing, care of, VI,
267 ff.
Viaticum, administered. IV,
221 ; as to interdict, VIII, 204
f. ; pastoral rights, II, 53°;
to religious. III. 141 f,
Viatorians, III, 18.
Vicar _ Capitular, II, 480 f.;
qualities, II, 484 f. ; resigna-
tion, II, 494: nghtsr II, 487
ff. ; powers denied. It, 489 f. ;
precedence, II, 492; terra ex-
pires, II, 495 f . ; cannot erect
religious institute, III, 65; as
to confirmation, IV, 108; as
to dimissorials. IV, 427; as
to testimonials, IV, 519; as
to s. supeltex, VF, 281 ; as to
examination, IV, 523 ; as to
marriage assistance, trials,
V. 276 ; 407 ; as to consecra-
tion of churches VI, 4; as to
interdict. VIII, iqq; as to
documents, VIII, 507; (see
Ordinary).
Original from
UNIVERSITY OF WISCONSIN
562
INDEX
Vicar-General, origin of, II,
303 f.; appointment number,
II. 395 »•; qualities, II, 397
f. ; of prelates nullius, II, 335
f . ; precedence, honorary
rights, II, 403 I. ; religious
cannot be, III, 355; as of-
Hcialis, VII, 30; term ex-
pires, II. 405; powers: in
general, II, 400 ft. ; appoint-
ment to offices, II, no; bless-
ing chrism, IV, 98; books,
VI, 477; building churches,
VI. 14; consecration of
churches, VI, 4; dimissorial
letters, IV, 426 ; irregulari-
ties, IV, 505; as to marriage,
V, 89 ; 276 ; 407 i as to relig-
ious. Ill, 65; 362 f.; testi-
monials, IV, 519; coercive,
inflicting penalties. VIII, 85;
pardoning penalties, VIII,
107; as to interdict, VIII,
199; as to penal remedies,
VIII, 268; as to penances,
VIII, 273.
Vicars Apostolic, II, 200 ff. ;
310 ff.; IV, 413; 427.
Vicarii paroeciales, II, 559 ff.
Vicariatus foranci, II, 201.
Vigilance, penal remedy, VIII,
269 f.
Viles homines. VTI. 370.
Vinculum pcrdurans, V, 325.
Vindictive penalties, VIII, Jt\
235 ff.; common to clerics,
VIII, 251 ff. ; common to
faithful. VIII, 250 ff.
Violence, in chapter acts, II,
29 f. ; in crime. VIII, 38 f. ;
done to body, VIII, 370 ; ex-
torted panlon, VIII, in; in
marriage, V, 244; 281; in
ordination, II, 194; 198.
T'irgincs, s.. Ill, 19.
Virgines subititroductae, II, 81.
Vis ct tnrtus, II, 29 f. ; in mar-
riage, V, 243 ff. ; as to novi-
tiate, III, 207; as to profes-
sion, III, 256; as to ordina-
tion, II, 194 f.
Visit, canonical, VIII, 517 ff. ;
oogle
of diocese, II, 367 f.; ad
limina, II, 365 f.; by religious
superiors, III, 133 ff.
Visitation Nuns, III, 22.
Visits of religious, III, 320.
Vita communis of canons, II,
424 f : of religious, III, 45
f.; VIII. 480.
Vitondi, vili, 173 ff.; 177 f ;
185 ; 189; 103; communica-
tion with. VIII, 352; in sus-
pension, VIII, 218; violence
to Pope, VIII, 378.
Vilium mentis, II, 569 f.
Vivoe Z'ocis oraculum, I, 154.
Vocation to clerical state, VI,
376; to religious state. III,
199 f-
Voluntarium in causa, VIII,
24; as to marriage, V, 244.
Voluntariness, VIII, 39.
Vote, active — passive, II, 127
f. ; deprived of, ipso iure, II,
130 f.; Ill, 37S; 376; VIII,
470; to be deprived, VIII,
327.; 339; 374; 421 ; 439; 48o;
majority of. II. 25; number,
II, 143; requisites, II, 132;
religious superiors. III, T2I
ff.; for religious profession,
III, 262; right of religious,
III, 270.
Vows, definition, VI, 289; com-
mutation, III, 301 ; VI, 307;
dispensation. VI, 303; irrita-
tion, VI, 209; impediment, V,
135 ff-; obligation, VI, 295;
observance of, III, 209 f. ; of
religious state. III. 44 f.; *5
ff.; of suppressed institutes,
III, 77 f. ; reserved, VI, 293;
wife's nullified, V, 330.
W
Wages, fair to employees, VI.
w
Warning, canonical, VIII, 86;
267 ff.; 279; 286; 362; 395;
413; 457; 458 f.; 480; 481;
504-
Origi rial from
UNIVERSITY OF WISCONSIN
INDEX
563
Water, baptisrrfel, IV, 66 f.;
mixed with wine, IV, 152 f.
Weight of testimonies, VII,
23s *■
White Fathers, III, 18.
Wife, as to domicile, II, 17; as
to husband's orders, IV, 40S ;
as to marriage rights, V,
329; as to novitiate, III, 209.
Will, collective, VIII, 165; last
of clergy, VI, 277; 5741 of
religious, III, 285; who may.
make, VI, 570; sacred, VI,
570 f.
Wine for Mass, IV, 152 ft*.
Witchcraft, magic, etc., VIII,
Witnesses, at engagement, V,
42; at marriage, V, 161; 312;
,422 f.; at trials. VII, 201 ff.;
in certain cases, VII, 408 ; as
to privilegium fori, VIII,
364.
Women, not allowed to serve
Mass, IV, 151; as to ordina-
tion, IV, 445 ; as to solicita-
tion, VIII, 441; suspected,
VII, 458 f.; violating enclo-
sure, VIII, 371 t
Word of God, VIII, 176 f.;
212.
Writing, for appointment, II,
117; in certain cases, VII,
405 ; deposition of witnesses,
VII, 228; division, union of
benefices, VI, 512; of serv-
ants of God, VII, 392; invi-
tation. VII, 420; reasons
against transfer, VII, 447; to
non-resident clergy, VII, 453.
Worship, divine, VI, 186 ff.;
private, public, VI, 189; pub-
lic by religious, III, 331 f. ;
of Saints, images, relics, VI,
235 f. ; impediment of mar-
riage, V, 179 ff.
Year, how reckoned, I, 116;
for fulfilling Mass-obliga-
tions, IV, 199; for novitiate,
I. 121 ; III, 231 f.
gle
Original from
UNIVERSITY OF WISCONSIN
G I Originalfrom
008IL UNIVERSITY 0FWI5C0NSIN
►ogle
Original fro ni
UNIVERSITY OF WISCONSIN
jle
Original from
UNIVERSITY OF WISCONSIN
G I Originalfrom
008IL UNIVERSITY 0FWI5C0NSIN
81051250177
nny he kept
bS)059250977a FC
from last da'
will be char
>Ie
Original from
UNIVERSITY OF WI5C0NSI
-
.V
oogle
-
o
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Books to Borrow
Open Library
TV News
Understanding 9/11