X. On Rescripts

What is a Rescript; what are its necessary conditions?

R. To the first: Privileges and dispensations are usually granted for the most part through Rescripts. Dispensations and privileges which proceed from the Holy See, without letters expedited according to custom, do not support one in the external forum, although they are ratified from Reg. 27, 31, 52, Canc. Apost.; and we can use them in the forum of conscience, because the letters pertain not to the form, but to proof. Pius X, C. Sapienti consilio, Ord. serv., Norm. pecul., c. 3, n. 1, 2; L. 5 C. de Transact.; L. 4 de Pignorib.; De Iustis, l. 1, c. 3, n. 25.

Hence a Rescript is a written Response of the Prince, by which the graces and dispensations conceded by him are contained; and one is of justice for ending lawsuits, another of grace, which contains the benefit of the Prince. - But graces are granted either at the instance of petitioners, or motu proprio; or in gracious form, or in commissory form. If they are imparted in gracious form, by their own nature they do not demand an executor. But an Apostolic Rescript must be exhibited to the Ordinary for recognition, if a public matter is involved, or if the conditions imposed must be verified. But if it is granted in commissory form, an executor is certainly needed. But it is not licit for the Ordinary to refuse execution, if the things set forth are true and the petitioner cannot be shown unworthy of the grace. Moreover, no compensation is to be demanded for the testimony of recognition. Ord. serv. in R. C., Norm. pecul., c. 3, art. 1, n. 4, 5. If a grace granted through a Rescript is conceded immediately by the Supreme Pontiff, without any intermediate executor, it is understood as granted from the day of expedition of the Rescript. But if it is granted through an intermediate executor, it is understood as granted when it has been committed to execution. C. 9 de Rescript. in 6.

R. To the second: From C. Nonnulli 28 h. t., someone cannot obtain Rescripts in favor of another unless he has an express mandate. Nevertheless the contrary has at present been received by custom. - But by the other it is regularly to be accepted, so that the Rescript may obtain its effect.

In order that a Rescript be valid, it is necessary that in the supplicatory petition there be no substantial subreption, unless it is granted motu proprio and not at the instance of the party, nor obreption, although it is granted motu proprio, because then the superior can be deceived. Subreption is the silence of a truth necessarily to be expressed; obreption is the setting forth of a falsehood. Wherefore subreption is had unless all and only those things are expressed which, from law or from the style of the Roman Curia, must be set forth. C. Quam gravi 1 de Crim. fals. Cf. Sanch., de Matr., l. 8, d. 21, n. 10, etc. All things, and neither ignorance nor good faith excuses. Only those things, otherwise no grace would any longer be safe and certain. And so in the provision of benefices it must altogether be expressed whether someone has been provided with another benefice, unless the provision is made motu proprio. Consequently it must always be expressed whether someone is by law incapable of obtaining the grace, whether the grace sought is against some particular right of a place or person. C. cited Sapienti consilio, III Kal. July 1908; Ord. serv. in R. C., Norm. pecul., c. 3, a. 1, § 1. Graces and dispensations of every kind conceded by the Holy See, even to those entangled in censure, are ratified and legitimate, unless there is question of those who are excommunicated by name, or likewise by name punished by the Holy See with the penalty of suspension from divine things. Ord. serv. in Rom. Cur., Norm. pecul., c. 3, a. 2, n. 6. Error or fraud concerning the economic condition of the petitioner will never at all harm the validity of the grace. Ib., Norm. comm., c. 11, n. 3.

But obreption is had if the motivating cause, namely that which moves or determines one to dispensation, is false. And if several are set forth, and only some are false, the dispensation is valid if at least one is true. But the impulsive cause, namely that which only impels, excites, helps toward dispensing more easily, added to the motivating cause, even if it is false, does not harm the dispensation; since that clause, if the things set forth are true, C. Ex parte 2 de Rescr., is referred to the motivating cause, not to the impulsive one. And the same must be said if several false impulsive causes are added. But if one sole cause is set forth, whether motivating or impulsive, and it is false; or if several false impulsive causes only are set forth, which all together are computed as one motivating cause, the Rescript is not valid if only one is false. The motivating cause holds itself rather on the part of the object itself, insofar as an object of this sort in the present circumstances becomes liable to some special difficulty or inconvenience. And thus dispensation becomes reasonable and fitting in the case, since the condition of this subject is dissimilar from the condition in which others commonly are found. The impulsive cause holds itself rather on the part of the person himself who gives or to whom the dispensation is given, as, e.g., the benevolence of the Prince to be shown, and the uprightness of the subject.

If the Rescript is in gracious form, subreption and obreption are to be judged present only if they are present when the grace is granted by the Prince, or rescripted. Wherefore the cause must then be present, and that clause must be verified: if the things set forth are true, namely at the time of the dating or expedition of the letters. But if the Rescript is in commissory form, the cause must be present when the grace is given to execution by the delegate. The reason is that the aforesaid clause must be verified when the grace is granted. But the grace is granted when it is granted by the Prince in the first case; but in the other when it is granted by the delegate, not when the mandate is given by the superior to the delegate to grant it. And this is altogether clear if the delegate is a voluntary executor, since then the delegate in reality grants the grace in the name of the one delegating. To him is given the power and license of granting the grace. But this is more truly so if the delegated executor is necessary, since even then the superior does not grant the grace when he commands it to be granted; but then, when the delegate communicates it, he himself truly grants it, not the delegate. Then the delegate has the simple ministry of executing the mandate, namely of communicating the grace which the superior himself then bestows, as if previously given under the condition of execution, which condition is then verified when the grace is committed to execution. But otherwise it would have to be said if the delegate merely communicated or manifested a grace already absolutely bestowed by the superior. C. 1 de Const. in 6; C. 2, 19 de Rescript.; C. 4, 8, 9 de Rescript. in 6; C. 23 de Praeb. in 6; Clem. 5 de Praeb.; L. 178, 181, 185; Struggl, q. 4, n. 14, 16; Sanch., de Matr., l. 8, d. 21; Riganti on Reg. 52; Ord. servand. in Rom. Cur., Norm. pecul., c. 3, c. 7, a. 3; E. M.

Resolves: A dispensation is invalid whenever an error has crept into the petition concerning the motivating cause, or concerning the very object of the dispensation, concerning its quality or quantity, whether this has happened by fault of the petitioner or of another, or even from mere inadvertence; e.g., if you place in the petition the impediment of affinity in place of the impediment of consanguinity, or the third degree for the second; otherwise, however, if you place the second for the third, because a lesser grace is contained in a greater one of the same kind; if you place one impediment of consanguinity in place of double or triple consanguinity; or only an impediment of consanguinity without another of affinity, etc. C. Si is 2 de Fil. Presb.; L. 185, 202; l. 6, n. 1131. A dispensation is valid if the error has crept into the Rescript of the superior, e.g., by carelessness of the secretary, because it supervenes upon the concession already made, and the superior thus grants: Let it be done as is petitioned. A dispensation granted from a just cause to some dishonest person, whom the superior considered honest, is valid, even if, had the dishonesty been known, he would not have dispensed, because uprightness is not reputed a motivating cause, but merely an impulsive one. Except unless someone was moved on account of uprightness. - It is also valid if a cause false at the time of petition becomes true at the time of concession, whether this is made immediately by the superior himself or mediately through a delegate; but not vice versa. - A dispensation is likewise valid if, while the truth of the motivating cause and of other essential things stands, another truth was kept silent, or a falsehood was set forth; nevertheless the petitioner, if he proceeded in bad faith, can for his fault and fraud be deprived of the grace of dispensation, or otherwise be punished according to the gravity of the fault. C. 20 de Rescript. - Likewise it is valid even if it is granted in bad faith, as when the dispenser thinks that a cause is not present which in reality is present; for validity does not depend on subjective knowledge, but on the objective existence of the cause. - Suarez, de voto, l. 6, c. 27, n. 13; Laymann, l. 1, tr. 4, c. 22, n. 21.

Generally speaking, a dispensation granted by a superior is valid, although it had already been denied by an inferior. Indeed it is also probably valid if, denied by a superior, it is granted by an inferior and even by a delegate; because the power of the inferior is not taken away or restricted by the denial of the superior, unless the latter expressly restricts it, or this is prohibited by some law. A fortiori a dispensation denied by one superior and given by his successor ignorant of the denial is valid. The reason is that the successor has the same power as the predecessor, nor is he ruled by the judgment and will of that predecessor. Cf. vol. 2, n. 1041. Consequently a dispensation denied by one Superior and granted by another of the same authority is valid. Nevertheless Rescripts obtained against the Decree of Innocent XII, Ut occurratur, 4 June 1692, are invalid, namely if someone again proposes to another Sacred Roman Congregation petitions in a matter of grace or justice which had been offered to and rejected by one of the Sacred Roman Congregations, this circumstance having been kept silent. What is said of dispensation is to be said of any other grace.

And "although, the cumulation of rights in the Offices of the Holy See having been abrogated, its own seat has been constituted for each business; nevertheless, because in peculiar cases there can be place for doubt or error, the ancient law remains firm, by which, once a supplicatory petition has been delivered to and accepted by some Office for obtaining a matter whether pertaining to grace or to justice, it is permitted to no one, for any cause, to approach another Office on his own initiative for the same end; but there is need of the consent of the Office itself with which the matter was begun, or of a decree of the Consistorial Congregation by which permission is given for transmitting the business. Any concession proceeding from another Office, against the aforementioned law, is void." A dispensation first denied, and afterward granted by the same superior, forgetful of the matter, is also valid. For in no way is it consonant with reason that the superior should wish to deny a dispensation for this reason alone, that he denied it at another time. For, if a just cause is really present, it is more fitting to temper the prior rigor than to confirm it. But no mention of the denial is to be made; for this is commanded by no law. And if a double faculty has been granted to someone, e.g., of absolving from reserved cases and dispensing in irregularities, when one of them, even the greater, has been taken away, the other is not therefore taken away, but remains. L. l. 4, n. 50; Lugo, de Fide, d. 23, n. 130.

What things are to be furnished by a delegate in the execution of Rescripts? - The mandate, and therefore jurisdiction, is not yet had in the delegate until the autograph letters of the mandate have come to him. C. Super eo 12 de Appell.; Sanch., de Matr., l. 8, d. 29, n. 10. Nevertheless it seems to suffice if the officials of the curia have received and read letters sent to the vicar general, and have announced them to him; since the officials pertain to the same office. Whether it also suffices if it has been announced by telegraph that the Rescript was expedited? By Circular Letter of the Secretary of State, 10 Dec. 1891, it was prohibited to admit supplications for graces by telegraph. And from the Holy Office and from the Sacred Penitentiary, matrimonial dispensations have been declared invalid unless the telegraphic notice was transmitted officially, by authority of the Holy See.

But the delegate must investigate whether the things set forth are true. If the investigation is omitted, and in the mandate the clause is had: if the petitions rest upon truth, the dispensation is valid, since this clause does not introduce a new substantial form, but is tacitly present. But if the clause is had: if you shall find the petitions to rest upon truth, then the first opinion still holds that it is valid, provided they are in reality true; since the dispensation is given on account of the motivating cause, not on account of knowledge of it. Nor indeed is a new substantial form introduced by this clause; for it too is tacitly present. Navarr., c. 27, n. 37, calls this opinion very well received. But the second, more common opinion, and the one to be held, affirms that by that clause a new substantial form is introduced, and therefore, if investigation has been omitted, the dispensation is void. L. l. 6, n. 1131; C. Benedict XIV, Ad Apostolicae servitutis, 10 Mar. 1742. But the inquiry need not necessarily be made in the order of law; a summary and extrajudicial inquiry in the external forum suffices. And in the internal forum faith is to be given to the petitioner. Trent, s. 22, c. 5 de R.; Sanch., de Matr., l. 3, d. 33, n. 4; l. 8, d. 34, n. 21 ff.; De Iustis, l. 1, c. 6, n. 249; Benedict XIV, Not. 87, n. 34.

The delegate must, in itself, discharge the mandate only for that case which is expressed in the mandate, with the form of the Rescript and its essential conditions observed. C. 22 de Rescript.; C. 13 de Off. et pot. iud. deleg.; C. Susceptum 6 de Rescr. in 6; C. Cui 27 de Praeb. in 6. The Decree of execution for the external forum is to be issued in writing, but if it is made orally it is valid. Execution cannot be denied if the truth of the Rescript is evident. But if the concession of the grace is remitted to the discretion of the executor, he cannot licitly deny it without a just cause. The executor of a Rescript of the Supreme Pontiff can execute it by himself, or even through another, unless this is prohibited either expressly or implicitly, because the industry of the person appears to have been chosen. In which case, he will be able to substitute another for himself only as regards examining the truth of the Rescript and taking other necessary information. C. 43 de Off. et pot. iud. deleg.; C. 62 de Appell.; S. O., 14 Dec. 1898. - A Rescript can be committed to execution by the successor in office of the executor, unless the industry of the person appears to have been chosen in him. S. O., 28 Aug. 1885; 20 Feb. 1888. An executor given by the Pope over a grace made, after the Pope has died, can execute the grace even while the matter is entire. C. 9 de Off. et pot. iud. deleg. in 6.

Praxis Apostol. Dispens.; L. 202 ff.; Alois. Trombetta, Praxeos Regulae circa contr. rer. eccl., c. 6; E. M. If execution is committed to the Ordinary of the place, it can be made by the Bishop, or by his Official or Vicar General in spiritual matters; or even, if it has not yet been made, by the Administrator or by the Capitular Vicar. - Matrimonial dispensations committed to the Ordinary of the petitioners are to be executed by that Ordinary who gave the testimonial letters, or transmitted the petitions to the Apostolic See, whether he is the Ordinary of origin, or of domicile, or of residence of both spouses or of either of them, even if the spouses, at the time when the dispensation is to be given to execution, have departed into another diocese, and are not going to return any more. It is lawful for the aforesaid Ordinary, for the execution of the matrimonial dispensation, to delegate another Ordinary, especially him in whose diocese the spouses are actually staying. S. O., 20 Feb. 1888.

Does the observance of various clauses pertain to the validity of the act? Clauses which contain only an admonition or precept pertain only to liceity. But those which contain a condition, and which are expressed by the conditional particle if, provided that, or another equivalent, look to validity; unless perhaps that which is expressed by the clause must be observed from the very nature of the matter concerned, or by law. For if that which the clause enjoins to be done is of such a kind that even if it were not enjoined, nevertheless it would have to be furnished either from the nature of the thing or from common law, by commemorating it in the clause, nothing else is thought to be intended than to recall to mind and urge the obligation coming from elsewhere. On account of this cause, e.g., the clause, the publications having been made, which is the form of Common Law, when it is expressed in letters of dispensations, does not introduce a new form and condition, but is an admonition that the form of Common Law itself be observed.

Sanch., l. 3, d. 33, n. 3; Zitelli, de Disp. matr., c. 5; cited Praxis; Collectan. S. C. de P. F., n. 1484, 1486-1488, 1434, etc. The clause: in the forum of conscience only, excludes the grace from being valid in the external forum. The clause: sacramental confession having first been heard, or in the act of sacramental confession, renders confession necessary for the value of the grace, which is still valid although the penitent, because indisposed, cannot be absolved. The clause: Motu proprio, and with certain knowledge, and from the fullness of power, regularly supplies the defect of obreption or subreption.