Appendix I. On the Privileges of Clerics

123. • Clerics enjoy certain privileges from Canon Law and from Roman Civil Law, indeed according to several from divine law, namely the privilege of immunity, lest they be punished by a lay court, and of exemption from the lay forum as to their own goods, both ecclesiastical and patrimonial.

But these privileges and most other ones, in many places, as also in France, are no longer acknowledged by the civil power ¹. Nevertheless there remains everywhere the privilege which is called of the Canon, by reason of which they incur excommunication who unjustly lay hands upon Clerics, as is established from the Second Lateran Council, in which it is said: "If anyone, at the instigation of the devil, lays violent hands on a Cleric or Monk, let him lie under the bond of anathema."

¹ ** This namely is the beginning, or rather the consequence, of apostasy from the Christian Religion. For the power which holds any Religion whatsoever in the same place has surely consummated apostasy from the Christian Religion. There you find Christian men; but you do not have a Christian kingdom or empire.

This privilege is enjoyed by 1º all Religious, even novices; 2º all Clerics, even those endowed only with simple tonsure; 3º indeed all Nuns and all religious persons living under a rule in Community, and also tertiaries of each sex wearing the habit of religious Orders and living in Community. - St. Ligorius, Bk. 1, Appendix II. - Hom. Apost., tr. 22, ch. 2.

124. • The privileges of Bishops regard 1º censures and irregularities; 2º impediments of matrimony; 3º vows and oaths; 4º other special cases, as may be seen apud St. Ligorius, Bk. 1, at the end of the Appendix on privileges, and in Hom. apost., tr. 20, ch. 3.

I. Concerning censures and irregularities.

1º They can absolve subjects from any hidden papal cases whatsoever, at least those reserved before Trent ², with the cases of the Bull Coenae excepted.

² Whether Bishops can absolve from cases reserved after Trent, if they are hidden, was not the one opinion of the Doctors. For the affirmative opinion stood Bonacina, Mazzuchellus, Peregrinus, Bossius, Gavantus, and Suarez alleged by Diana (tom. 3, tr. 3, res. 27, n. 2); to whom St. Alphonsus (Bk. 6, n. 594) adds Sanchez, Sorbus, Delbene, Renzi, Beia, Mazzotta, and Diana himself, who brings forward these reasons (l.c.): "This opinion is proved, because although the Council uses a word of past time, nevertheless it is extended also to future things because of the nature of law, whose property is to comprehend future things, as is had in the final chapter, De Constit., and the Doctors there. And it is confirmed from law Ariani, C. De haereticis, where it is had that the law is always in fresh observance and always speaks. But a general Council has the force of law, both because the Council grants to Bishops the said faculty generally, not distinguishing between past and future reservations; therefore it must be understood generally (law Pretio, ff. de publ. in rem action., and ch. Solitae, § final, de maior. et obed.); and because the faculty of absolving which is given in jubilees extends to future sins; and because the Council in the said decree places a general rule concerning pontifical Reservations, namely that they are to be understood of public crimes, but not of hidden ones, with the limitation placed in the same decree; and finally because in reserved cases and in cases to be reserved there is the same reason of absolution, if they are hidden, and therefore in each one there ought to be the same disposition of law. For why

To these reasons there is added an argument taken from the Constitution of Sixtus V, Effraenatam, 29 Oct. 1588, against those procuring abortion. For while he reserved to himself both absolution from the sin and censure, and dispensation from irregularity as to clerics who perchance were accomplices in this crime, he judged that the privilege granted to Bishops by the Synod of Trent, that they can absolve from hidden papal cases, had to be expressly derogated. But there would have been no need to derogate this privilege if the privilege did not extend itself to cases reserved after the Synod of Trent. Therefore.

And St. Alphonsus indeed (l.c.) grants that these things are affirmed very probably; nevertheless he judges that the response is not solid enough which the aforesaid Doctors return to those objecting the Declaration of Gregory XIII, when they answer that it is not authentically established concerning it. But on the contrary St. Alphonsus opposes the authority of Fagnani, who (In C. Dilectus De Tempor. Ordin., nn. 30-33), while generally establishing the thesis that Bishops cannot absolve from hidden cases reserved by a new Constitution after the Council of Trent, adds that the Sacred Congregation so judged. Indeed this thesis of Fagnani and the alleged Declaration would otherwise overthrow also the opinion of St. Alphonsus, which we shall set forth below.

For the rest it seems plainly to be said that the reasons brought forward by Fagnani for that thesis are very lame. And surely, first, he argues from the fact that today a Bishop cannot absolve from heresy and from the other cases reserved in the Bull Coenae, although they are hidden. But from these things one argues wrongly to other cases. For the faculty of absolving from cases, even hidden ones, reserved in the Bull Coenae, according to the opinion of the Doctors, was taken away from Bishops by force of the derogatory clause concerning the decrees of any Council whatsoever, which, according to Benedict XIV (De Syn. Dioec., bk. IX, ch. 4, n. 8), after Card. De Lugo (De Fid., disp. 23, n. 48), began to be appended to the same Bull under Gregory XIII. But this clause is by no means found in other Constitutions which reserve some case to the Supreme Pontiff.

Fagnani next argues from the response given to the Archbishop of Florence under Gregory XIII. For when the Archbishop of Florence had doubted (I recount the matter in the words of the same Fagnani) whether by force of ch. 6, sess. 24, he could absolve a nun who secretly and for an evil end had broken enclosure, notwithstanding the Bull of Pius V, which seems to have place in a public case, there was a divergence in opinions. For out of ten Cardinals, three judged that the Bull was to be understood also in hidden cases, because its words are general, and only the case in the article of death is excepted, etc.; and because it had already been declared that the Bull Coenae Domini, which prohibits absolution by others, has place even in hidden cases; and because, since the Bull was drawn up after the Council, it is judged to have derogated the Council. Four judged that that Bull did not have place in hidden cases. But the remaining three said that the matter should be brought before the Most Holy One; who declared that the Bull of Pius V has place even in hidden cases.... Hence afterwards the Sacred Congregation, having been generally consulted, whether, if a nun of some monastery subject to the jurisdiction of Regulars secretly committed an offense in the matter of enclosure, she could in the forum of conscience be absolved by force of the same Decree by the Bishop, to whom, as Delegate, authority in those things which pertain to enclosure was attributed by the Decree ch. 5, sess. 25, De Regularibus, with the aforesaid Bull of Pius V standing, responded: SHE CANNOT. Thus Fagnani. But this argument too labors under the same defect as the preceding one. For 1º the Declaration of Gregory XIII affects only the Constitution of St. Pius V concerning the enclosure of nuns. 2º The response of the Sacred Congregation, which is added, regards only the case of violated enclosure. 3º Indeed another reason for this negative response was available; for the power given to the Bishop as Delegate of the Apostolic See concerning the enclosure of exempt nuns attributes to him no jurisdiction over the exempt nuns themselves (see St. Alphonsus, bk. 6, n. 602, q. VII). Indeed this can seem the stronger reason why the faculty was denied. For otherwise, since nuns are reckoned among persons impeded from going to the City, and according to the common opinion one thus impeded is not held to seek absolution by letters (see St. Alphonsus, bk. 7, n. 89), by common law the faculty of absolving would be made to the Bishop, unless the exempt nun, removed from the jurisdiction of the Bishop, had another Ordinary. Therefore the reasons of Fagnani conclude nothing concerning the general question.

St. Alphonsus (bk. 6, n. 504, at the end), after mentioning from Fagnani the history of the aforesaid Declaration, judged that that Declaration was indeed not to be extended to all Constitutions, but only to those which are fortified with the same clauses; in which matter, as is plain, he departs from Fagnani. Thus he says: It must be noted with the same Fagnani (In C. Quoniam De Constit., nn. 29-30), that for the cases contained in two Bulls, namely in the Bull Coenae and in this aforesaid one of St. Pius V, derogation was made from the faculty granted by Trent to Bishops in the said ch. Liceat, because of the derogatory clauses, namely in the first: "Notwithstanding the decrees of any Council"; and in this second: "Unless in the article of death." Hence we say that any Bull whatsoever, where the aforesaid clauses are present, takes away from Bishops the faculty of absolving hidden cases reserved to the Pope; but not other Bulls, in which no derogatory clause is present, as Diana, p. 7, tr. 2, res. 22.

But this theory ought to be ascribed neither to Diana nor to Fagnani. Not to Diana, since he (l.c.) indeed excepts if in the new Constitution there is a clause sufficiently derogating this decree of the Council; but nowhere does he say that a clause of this sort is contained in the words, "Unless in the article of death." Not to Fagnani, who (in the cited ch. Dilectus) extends his doctrine to any reservations whatever later than Trent; but elsewhere (in the cited ch. Quoniam) merely says that the Sacred Congregation declared: from the Bull Coenae the faculty attributed to Bishops by the decree of the Council (ch. 6, sess. 24) was taken away, and similarly from the Bull of Pius V the faculty belonging to Bishops (from the same ch. Liceat) of absolving nuns secretly offending in the matter of enclosure was removed. But concerning the clauses of the same Bull of St. Pius V he has nothing at all. Therefore what St. Alphonsus adds from his own opinion, that this is to be understood of any Constitution having the clause, "Unless in the article of death," this indeed, as we saw above, was said by three Cardinals in the Congregation, with reasons brought forward which do not seem to be of great weight; but that there is any value in this opinion of theirs no one has defined, nor is it in any way established that Gregory XIII had this before his eyes in his Declaration. Wherefore that extension to other Constitutions, viewed according to the principle on which it rests, does not seem sufficiently firm.

Finally, of lighter weight are the things which Cajetan Giraldi has concerning the Decree or Declaration mentioned by Fagnani, both in the Exposit. Iuris Pontif. (part 2, sect. 152), and in the Notes to Thesaurus' work De Poenis Ecclesiasticis (part 1, ch. 22). For thus he writes concerning this matter: Since it is not indicated by Fagnani in what year this decree, first cited by him, was issued, lest its issuance be called into doubt, after the Registers of the Sacred Congregation of the Council had been diligently turned over by me, I found that it had been issued in the month of January 1589 in the Response to Postulate XII, which among other things Gaspar Visconti, Archbishop of Milan, made to the same Congregation on the occasion of the visitation to the sacred thresholds. For when the said postulate XII expressed in the Italian idiom what, translated into Latin, sounds thus: "Because it often happens that censures reserved to the Apostolic See are incurred by contravening Papal Constitutions issued after the Council of Trent, the Archbishop desires the faculty of absolving the contraveners, who sometimes remain bound by censures for a longer time, since they do not have the means of obtaining absolution from the Roman Curia, especially concerning the enclosure of nuns and of male Regulars," as is found in bk. 5 of the Decrees, p. 239, the Sacred Congregation abstained from the concession of the Postulate, but only tacitly confirmed what the Archbishop himself thought concerning this faculty by these precise words, in the month of January 1589, as they are found in the cited bk. 5, p. 240: "Reservations of cases newly made after the Council are not comprehended in ch. 6, sess. 24, De Reform., and especially concerning the enclosure of nuns." Gallemart reports that this declaration, at this same chapter, was confirmed by Gregory XIII. From these things it is plain what the sense of the Bishops was, soon, as it were, after the publication of Trent, concerning the faculty attributed to them in the cited ch. 6.

I said that these things are of lighter weight; for who, I ask, would admit this response, such as it is, as the first decree of the Sacred Congregation on this matter, which Gregory XIII then confirmed, if indeed the mere denial of a requested faculty is worthy of the name of a response, when that Postulate of the Archbishop of Milan is said to have been offered in the month of January in the year 1589, while Gregory had already departed from life four years before? And then, what does this TACIT RESPONSE, which Giraldi fashions for himself, have in common with the Decree by which the Sacred Congregation, according to Fagnani, EXPRESSLY responded that thing, namely, SHE CANNOT? Indeed, what does the question concerning hidden cases, about which Fagnani speaks, have in common with the Postulate of the Archbishop of Milan, in which a faculty of absolving is sought without any distinction between hidden and non-hidden cases? Therefore the whole force of the argument will finally reside in this, that in the supplicatory petition that opinion of the petitioner is found expressed. But ought the private opinion of the Bishop petitioning to be confused with the Decree of the Sacred Congregation, which responds nothing about that very opinion? Surely if this new canon is established, and if the opinions which the petitioner expressed in a supplicatory petition must be held as so many Decrees of the Sacred Congregation, we shall now say that this too has been defined by the Sacred Congregation: that a Bishop cannot absolve from papal cases those who are detained by a legitimate impediment from approaching the Pontiff for absolution from papal cases! For in the same petition the faculty is sought of absolving those who otherwise remain (these are the words of the Postulate) bound by censures for a longer time, since they do not have the means of obtaining absolution from the Roman Curia; and nevertheless the Sacred Congregation did not judge that assent should be given to that petition, but denied the faculty of absolving them. Therefore let us conclude that Giraldi's great labor in searching the Registers of the Sacred Congregation not only contributed nothing to proving the authenticity of the Declaration about which the question is, but on the contrary, since he did not find anything better in the same Registers, although most diligently turned over, it rather has deservedly cast the gravest suspicion that Prosper Fagnani, who dictated his work while blind, slipped in memory, and that this Declaration in fact never existed.

But neither do those things completely settle the controversy which are reported from the Cremonensis of 4 Dec. 1632 in another Severina of 28 May 1796, where the Secretary narrates these things: "Adhering (the Sacred Congregation) to declarations made at other times, it rescripted that Bishops by force of ch. 6, sess. 24, De Reform., cannot absolve or dispense in the case of heresy, nor in other cases reserved to the Apostolic See by a new law after the Council. But in these cases, in which such a faculty has not been taken away from Bishops, it is indeed transferred to the Capitular Vicar," etc. And surely here it is not sufficiently apparent whether that new law must be taken for one which, in the accustomed manner, reserves absolution from sin to the Apostolic See, or rather must be taken for one which only places an exception upon the faculty conceded to Bishops by that ch. 6 concerning hidden cases, of which sort are held to be the Constitution of Pius V as to the enclosure of nuns, and that of Gregory XIII concerning the cases of the Bull Coenae. Now unless this is certainly defined, nothing in fact can be concluded from these things. For the rest, if the consequences are inspected, surely you would say that that reservation must be taken in this latter sense. For it follows: "But in these cases in which SUCH A FACULTY HAS NOT BEEN TAKEN AWAY FROM BISHOPS," etc. Therefore the context requires that the preceding words be understood of a new law by which such a power has been taken away. But such a power is no other than that which is conceded to Bishops by ch. 6 concerning hidden cases. Therefore the new law is here to be understood as one by which the Pontiff after Trent has placed an exception or limitation upon the faculty of Bishops concerning hidden cases, not indeed as one by which he has generally reserved some case to the Apostolic See.

And these things indeed have been said concerning the state of the controversy, as it has hitherto been possible to judge from the reasons which are customarily brought forward by each of the dissenting parties. For that the Apostolic See was able to revoke the faculties conceded to Bishops by ch. Liceat, as in fact was done, for example, as to the cases contained in the Bull Coenae, or was able so to circumscribe them that, for example, they would not extend themselves to reservations later than Trent, no one ought or can doubt.

For the rest, after the Constitution Apostolicae Sedis issued by our Most Holy Lord Pope Pius IX on 12 Oct. 1869, there is now no doubt that a controversy of this sort must be held as defined. "Nevertheless" (says the Supreme Pontiff) "we will that the faculty of absolving conceded by the Synod of Trent to Bishops, sess. 24, ch. 6, De Reform., remain firm in any censures whatsoever reserved to the Apostolic See by this Our Constitution, with only those excepted which we have declared reserved in a special manner to the same Apostolic See."

Therefore the difference between the old Law and the new resides in this: that in the former the cases contained in the Bull Coenae and the censures issued against violators of the enclosure of Nuns were excepted; but in the more recent one, only the cases reserved in a special manner to the Apostolic See are excepted. These are fourteen, to which must be added 1º the interdict against universities, Colleges, and Chapters appealing from the ordinations or mandates of the Roman Pontiff existing at the time to a future universal Council; 2º from the Declarations of the Holy Office of the Inquisition, 17 June 1866 and 4 April 1871, the case of a person of whatever sex falsely denouncing a Priest for the crime of solicitation in Confession.

would the authority of Bishops be lesser in new reservations than in old ones?

2º They can dispense from all irregularities and absolve from all suspensions on account of a hidden offense, excepting irregularity from voluntary homicide.

3º In irregularities also doubtful from defect. (Probably.)

4º In non-hidden irregularities from defect of birth for minor Orders and simple benefices. - Council of Trent, sess. 24, ch. Liceat. - See St. Ligorius, bk. 4, Appendix on privileges, n. 49 and following.

125. • II. Concerning impediments of matrimony, Bishops can dispense:

1º In impeding impediments, except the vow of perpetual chastity, the vow of entering Religion, espousals, and the impediment of disparity of worship between Catholics and heretics.

2º In supervening impediments, once marriage has been contracted, in order to asking for the debt, for example, if they contracted affinity because either one had carnal intercourse with the other's blood relatives; or if one vowed chastity. Indeed the Bishop can also dispense the spouse from a vow of perpetual chastity which he or she emitted before marriage, so that he or she may exercise matrimonial rights ³.

³ ** Nevertheless the Confessor ought to know that in these circumstances, which sometimes do not permit delay, or do not leave prompt access to the Bishop, another way is present by which provision is made for the necessity of the spouses, namely that one spouse indirectly irritates the vow of the other, that is, suspends its obligation. See vol. 1, n. 330.

3º In doubtful diriment impediments ⁴. - St. Ligorius, Appendix, n. 55, where he says that this opinion is very common.

⁴ ** Yet someone will be able to note that, where the impediment is doubtful, there is no need that a dispensation be sought, as will be said in the treatise on matrimony.

4º Per accidens in certain diriment impediments, both before and after the contracted marriage, when recourse to the Pope is very difficult, or when there is danger in delay ⁵, or where there is imminent danger of scandal, infamy, incontinence, etc. - St. Ligorius, ibid., n. 56 and following.

⁵ ** St. Alphonsus, as we shall see in the Treatise on Matrimony, judges it probable that the impediment ceases when, some grave cause urging, access is not open even to the Bishop.

5º In publications of the Banns. - St. Ligorius, ibid. - See the things to be said in the Treatise on Matrimony, n. 739.

III. Concerning vows and oaths, Bishops can dispense:

1º In all simple private vows, excepting the five reserved to the Pope, namely of perpetual chastity, of Religion, and of pilgrimages to Jerusalem, to the thresholds of the Apostles, and to St. James of Compostela (tom. 1, n. 330).

2º In all oaths, if you except oaths accepted by a third party, which were not extorted by fear or fraud. - St. Ligorius, passim.

126. • IV. Concerning certain particular cases, Bishops can dispense:

1º In all matters of lighter moment, both from custom and because recourse to the Pope would be too inconvenient.

2º In all things which commonly occur, for example, in fasting, in abstinence, in the divine Office for particular cases ⁶, or for a brief time, etc.

⁶ ** Understand, with particular persons; for in common law Bishops do not have the faculty of dispensing with a whole community.

3º In all statutes which have the clause, "until dispensation is given." But whether a Bishop can dispense in canonical statutes not expressly reserved, St. Ligorius judged that the negative opinion is altogether to be held, bk. 1, n. 191 ⁷.

⁷ ** St. Alphonsus (Hom. Apost., tr. II, ch. VI, n. 58) writes these things concerning this question: But whether Bishops can dispense in all Canonical laws where the Dispensation is not expressly reserved, many Doctors admit this, as Soto, Covarruvias, Sporer, St. Antoninus, who calls it common, and Elbel, who calls it most common and for it adduces St. Bonaventure and Scotus, and Castropalaus calls it probable with the Gloss on ch. Nuper, De Sent. Excomm., where the Pontiff thus acknowledged: "Yet because the founder of the Canon did not specially retain absolution to himself, by that very fact he seems to have conceded to others the faculty of relaxing." And the Gloss adds: "Here is an argument that Bishops can dispense where Dispensation is not specially prohibited, from law Nec non, ff., Ex quibus causis." But on the contrary Suarez, Bonacina, the Salmanticenses, etc., deny from ch. Dilectus, De Temp. Ord., where a certain Bishop, since he had conferred several orders on one person on the same day, was suspended for this reason: "Since a Dispensation of this sort from the Canon was by no means permitted to him." And they respond to the text first alleged, that that disposition was made only for absolution from censures. But, notwithstanding this, the first opinion is sufficiently probable, because we can use the same response for the second text, that it has force only in the matter of ordination. All the more because in the first text the words seem to speak generally, but in the second specially about ordination, since that word, "of this sort," is used. Thus far St. Alphonsus.

4º For performing the Sacred Rite from midday. By force of the quinquennial faculties they enjoy the privilege of celebrating for one hour before dawn and another after midday, and of communicating this faculty to suitable Priests.

5º They can choose for themselves a Confessor outside the diocese, provided he is their subject, and they can take him with them to different places; but if he is not a subject, he must be approved by the Ordinary of the place. Cardinals can do the same, but only at Rome, although they can take him whom they have chosen with them outside Rome. - St. Ligorius, Appendix, bk. 1, n. 65.

6º They can dispense from interstices for ordination. - St. Ligorius, bk. 6, n. 793.

7º They can absolve from some cases per se papal, but which by common law are reserved to Bishops or Ordinaries. They are the following: 1º The excommunication imposed on Clerics constituted in sacred orders, or Regulars or Nuns, after a solemn vow of chastity, presuming to contract marriage; and also all persons presuming to contract marriage with any of the aforesaid persons. From the Constitution Apostolicae Sedis of Our Most Holy Lord Pope Pius IX.

2º Likewise the excommunication imposed on those procuring abortion, the effect following. From the Constitution Apostolicae Sedis, etc.

3º Likewise on those knowingly using false Apostolic Letters, or cooperating in the crime in that matter. From the Constitution Apostolicae Sedis, etc.

4º A light striking of a Cleric, or a grave one done by a woman, or by a boy, or by another person impeded from being able to approach the Apostolic See. From ch. Pervenit, 17, and ch. Quod de his, 26, and ch. Quamvis, 58, De Sent. Excommunic.

5º Reincidence into the censure by which anyone is punished who, absolved in the article of death by one not having the faculty, does not present himself to the Superior.

6º Communication in a criminal crime with those excommunicated by the Bishop. From ch. Nuper, 29, and ch. Si Concubinae, 55, De Sent. Excomm. ⁸.

⁸ ** In order that it may be understood what this privilege of Bishops means for itself, it must be noted that by general law it has been sanctioned that he who communicates, that is, cooperates, in the same crime with him who for this very crime has already been excommunicated, incurs altogether the same excommunication. The Doctors derive this rule from ch. Si Concubinae, 55, De sent. Excom., which they usually allege here. Therefore if there is question of a crime reserved to the Pope, the communication in that crime will also be reserved to the Pope; if the crime is reserved to the Bishop, communication will likewise be reserved to the Bishop. Therefore it is plain that the privilege about which the Author speaks concerns absolution from an excommunication reserved to the Bishop; for he therefore says, "with those excommunicated by the Bishop." But then, you will say, what privilege will it be, that the Bishop can absolve an excommunicated person not indeed by the Pope, but by a Bishop? That the reason may be understood, one must have recourse to the doctrine concerning those excommunicated by name ab homine, whom by law only the excommunicator can absolve (see Bonacina, De Cens., disp. 2, q. 2, p. 6, § 1, n. 9). But by force of the privilege the faculty is given to Bishops of absolving him for whom it is difficult to approach the excommunicator. To this matter the Doctors adduce ch. Nuper, 29, de Sent. excom., in which this question is clearly solved. For thus Innocent III says: "Since such a person communicates in the crime and participates with the criminal, and by this seems, by reason of the condemned crime, to offend against him who condemned: absolution will then deservedly have to be sought from him or from his superior by merit of the offense, since equal punishment binds the doer and the consenter.... But if from some just cause it is difficult for him to approach the excommunicator himself, we concede by way of indulgence that ... he be absolved by his Bishop or proper priest." See Thesaurus, De Poen., part 2, word Censura, ch. V.

7º The extraction of one who has fled for refuge from the Church, done by private authority, or the striking or plundering of the goods of the same fugitive, likewise by private authority. Ch. Definivit, 35, caus. 17, q. 4.

8º A visit of a sick person made by a physician, if after he has visited him on the third day, it has not been established for him by the testimony of the Confessor that the same sick person has made sacramental confession, or has deferred it by the counsel of a learned Confessor. From the Roman Council under Benedict XIII, tit. 32, ch. 1.

9º All censures reserved to the Pontiff, if the offense is hidden, with those excepted about which above, n. 84, in the Note.

10º All papal censures and cases, even reserved in a special manner, if because of a legitimate impediment or urgent necessity of hearing confession the Apostolic See cannot be approached. - See St. Ligorius, bk. 7, n. 213.