21. On Privileges and Rescripts

1. Gervasius, having a privilege by which he can hear Mass during a time of interdict, nevertheless omits it, because, he says, no one is held to use a privilege. The same Gervasius, suffering from a very troublesome gout, by no means can seek the church for hearing Mass on feast days. But although he can hear Mass in the private oratory of his house, of which he has the privilege, he also omits it, relying on the same principle.

Q. 1. Is he who can by privilege hear Mass during a time of interdict held to hear it? 2. Is he who cannot leave home held to hear Mass by privilege in a private oratory?

R. To the first, affirmatively. The reason is that that special privilege has no other effect than to remove the impediment of inability in the observance of the common precept, which interdict brings. Therefore, such an impediment having been removed, since consequently one is able to fulfill the law, the obligation of fulfilling the precept is in force. - To the second, probably negatively, because to do the sacred rite in a private oratory is of itself something odious, and less becoming the reverence due to this divine sacrifice. Therefore no one can be compelled to use such a privilege. Hence the distinction is clear between this case and the preceding one. For in the case of interdict, the impediment of inability having been removed by the privilege, afterwards no dispensation of law intervenes, but Mass is said in the regular way. On the contrary, in the present case, through the privilege the impediment of hearing Mass is not removed, sickness for example, but the faculty is made that Mass be celebrated and heard outside the church against the common canon, and therefore truly there intervenes here an active use of privilege, which no one is held to use. Ithuriaga, Cas. 32, n. 19, 20. Others, however, deny it. And thus G. 139 says: "Gervasius is held to use the privilege, if he can easily have a priest who will celebrate gratuitously in the oratory; the reason is that, although he is not held to use a privilege, he is held to satisfy the precept whenever he can do this without inconvenience. Indeed, the same must be said if he can hire a priest for a modest stipend, because each person is held to suffer a slight inconvenience in order to satisfy a precept.... But if Gervasius cannot hire a priest without a notable stipend, he is more probably to be excused from the obligation of Mass." - Cf. I. M. 259; Gur.-Ball. Comp. 348.

2. Odoardus sought several graces from the Supreme Pontiff. But since all the rescripts had been remitted to the Ordinary, and were to be communicated to Odoardus by the Ordinary, the Ordinary abstained from making such communication. For with respect to some, he did not judge it expedient that Odoardus enjoy those graces and privileges. With respect to others, however, he judged that the causes set forth to the Pontiff were not consonant with the truth. When this came to the knowledge of Odoardus, he indeed offered humble prayers to the Ordinary, that he would be willing to communicate the apostolic rescripts to him, yet at the same time asserting, with all reverence toward the bishop, that he himself could not impede or delay their effect.

Q. 1. What is a rescript? 2. Did the bishop act by right or by injury; did Odoardus speak rightly or erroneously?

R. To the first, cf. I. M. 283. To the second: the resolution of the question depends on the form and on the various clauses by which the rescripts were conceded. Thus, for example, the bishop indeed acts injuriously if the rescripts are in gracious form. For these rescripts are those in which the Supreme Pontiff by himself immediately makes the grace, without this being able to be impeded or delayed by another. And this has place either without any commission or execution to be given by the Ordinary, for example: The Most Holy One benignly assented for the faculty sought; or with a commission or mere execution to be given by the Ordinary, for example: The Most Holy One benignly assented at the judgment of the Ordinary for the indult sought. In the first case, there is no executor. In the other there is a mere executor, to whom a bare ministry to be executed is committed without exercise of jurisdiction, whose office consequently consists in the fact alone, nor can he assume the parts of a judge. Nor indeed by force of the clause at the judgment can the Ordinary, to whose judgment the execution is committed, abstain from the executorial decree, and impede or delay the grace immediately conceded by the Supreme Pontiff through a rescript in gracious form; for this clause, at the judgment and conscience, at the judgment and prudence, is only an expression and signification of mere fittingness and reverence, S. C. C., 6 Dec. 1845. Therefore in such a case Odoardus spoke rightly. Indeed, a mere executor, to whom rescripts in gracious form have been committed, must altogether, without any knowledge of the cause, entrust them to execution; because to the indultary, through the grace immediately conceded by the Supreme Pontiff, a right in the thing in some way has already been acquired.

But another thing must be said if the rescripts are in commissary form.

These rescripts are those in which the Supreme Pontiff does not make the grace by himself, but commits, or gives a mandate to Ordinaries that they make it if they judge it expedient in the Lord, for example: The Most Holy One remitted the petitions to the judgment of the Ordinary, with the necessary and opportune faculties for this, that he can and may be able to provide concerning the premises. Or also: The Most Holy One granted the faculty to the Ordinary of conceding to the petitioner the indult sought, if he should thus judge it expedient in the Lord. Namely, since the Supreme Pontiff himself sometimes does not have knowledge of the things with which there is then question, and otherwise does not dissent in general that the grace be conceded, he then commits to the Ordinaries that they concede the grace, by granting them the faculty for this. For they can more easily have full knowledge and certitude of the things narrated. The executor then is not a mere executor, but a mixed executor; for to him is committed not a bare ministry, but a ministry with exercise of jurisdiction. For to the executor is committed the office of verifying the things set forth or narrated to the Supreme Pontiff, and at the same time the power of conceding the grace. Whence before this execution the indultary does not have a right in the thing, but only a right to the thing. Wherefore, in this other case, if, the verification of the things set forth having been made, the Ordinary does not find them true, he rightly abstained from bestowing the grace; and Odoardus spoke erroneously. But otherwise, if, the verification of the things set forth having been made, it was established that they were true. S. C. EE. et RR., 29 Apr. 1768.

Finally, another thing must also be said if the rescripts are in mixed form, that is, gracious and commissary at the same time. These rescripts are those in which the Supreme Pontiff himself indeed concedes the grace, but dependently on conditions to be verified by the Ordinary. Wherefore the concession is quasi-conditioned, and becomes absolute when that condition is verified, for example: The Most Holy One assented at the judgment of the Ordinary, it being established concerning evident utility, and with the consent of those having an interest acceding, for the faculty sought, or sale, etc. In this case the executor is also mixed, for although there is not committed to him also the power of bestowing the grace, nevertheless there is committed the power of knowing and verifying the things set forth, and the conditions added in the rescript. Cf. Ferraris, v. Exequutor. Whence before execution there is acquired to the indultary only a right to the thing. But, as in gracious form, so in this mixed form, the grace has been made, and therefore it does not expire through the death of the Pontiff, provided that on the contrary, in commissary form, the grace is to be made, and expires through the death of the Pontiff; but when a new Pontiff has been elected, it revives, by force of rule 12 of the Chancery. Wherefore, in this case also, the bishop acts rightly if the causes set forth to the Supreme Pontiff were in reality false; and therefore Odoardus spoke erroneously. But otherwise it must be said if the causes were true, and the other conditions added in the rescripts were verified. C. 9, de Off. et pot. iud. del. in 6.; I. M. 251, 255, 283, and v. 2, 1045; Aloisius Trombetta, Praxeos Regulae circa contr. rer. eccles., c. 6.

3. Titius obtains from the Holy See the grace of a private oratory and some indulgences. Must he manifest these to the Ordinary under pain of nullity?

R. Affirmatively as regards the private oratory, because it is a dispensation, and dispensations by which derogation is made from some law, whether they are in commissary form or in gracious form, are to be exhibited to Ordinaries, so that they may either execute them or at least know them. Trent, sess. 22, ch. 2, de R. Negatively as regards indulgences, because there is no question of a dispensation, of which alone the Council of Trent speaks in the cited place, but of a mere grace. S. C. Indulg., 20 May 1896. - M. E. v. 9, p. 2, p. 142.

4. The bishop N. sought a dispensation from the Sacred Penitentiary upon the impediment of consanguinity in the second degree of the collateral line, so that Carolus D. and Iulia M. could contract marriage. For causes he set forth the almost advanced age of the female petitioner, namely 23 years and 6 months, and her condition as deprived of both parents. The Sacred Penitentiary conceded the dispensation on account of the age of the female petitioner, 24 years, and her condition as orphan. Since Iulia M. has not completed the twenty-fourth year, is the rescript valid?

R. "Since another cause for dispensing is present, nothing obstructs that the aforesaid rescript of dispensation be entrusted to execution." S. Poenit., 28 Apr. 1897. M. E. v. 10, p. 1, p. 195.