ARTICLE I: ON THE POWER OF DISPENSING

Preliminary matters. - That the things to be said may be rightly understood, it is helpful here to premise certain things concerning ecclesiastical jurisdiction, which is the foundation of the power of dispensing.

149. • Ecclesiastical jurisdiction is defined: the power of governing subjects in order to eternal life.

It is divided: 1° Into jurisdiction of the internal forum and of the external forum.

Jurisdiction of the internal forum is that which primarily and directly is referred to the private utility of each one of the faithful. - It is subdivided into jurisdiction of the penitential forum, which can be exercised only within the tribunal of penance, and into jurisdiction of the internal extra-penitential forum, which can be exercised outside it, when, for example, a superior dispenses in a vow, etc.

Jurisdiction of the external forum is that which primarily and directly regards the public utility of the body of the faithful: as, to make laws, to decide controversies concerning doctrine or discipline, and similar things.

2° Into universal, which is restricted by no limit, neither as to persons, nor as to places, nor as to matters: such was the jurisdiction of the Apostles, and now such is the jurisdiction of the Supreme Pontiff, - and particular, which is restricted in one of those three ways, namely either as to persons, or as to places, or as to matters.

3° Into voluntary and contentious, or into extrajudicial and judicial. Voluntary, which is also called extrajudicial, is that which a superior can exercise even toward the unwilling, without the forms prescribed by law for judgments. - But contentious or judicial is that which is exercised according to the forms prescribed by law for judgments.

Contentious jurisdiction cannot be exercised by a Prelate outside his territory either licitly or validly, because such exercise cannot be made without judicial solemnity.¹ - But voluntary jurisdiction can be exercised even outside the territory, unless the ministry of episcopal order requires that it be exercised within the diocese, as happens in Pontificals.

4° Into ordinary and delegated. Ordinary is called that which belongs to someone by his own right, by reason of his office or dignity, from law, custom, or privilege having the force of law: such is the jurisdiction of the Pastor, Penitentiary, Bishop, Chapter, Abbot, Supreme Pontiff in the whole Church, Legate, etc. Those who possess ordinary jurisdiction in the external forum are Ordinaries; by which name are called not only Bishops, but also their Vicars General, and Prelates who in certain places exercise quasi-episcopal jurisdiction. But by the said name Pastors are not designated, because they do not have jurisdiction in the external forum.²

Delegated jurisdiction is that which someone does not have by his own right, that is, not by reason of his office or dignity, from law, custom, or privilege having the force of law, but only through the commission of another; yet this commission can be given not only by man, but also by law, according as the power of absolving in the article of death is reputed to have been given from custom to all priests.

Delegated jurisdiction is of a twofold kind, one particular, another for the universality of causes. Particular is that by which one or another cause is committed. But it is for the universality of causes when all causes, or at least a certain genus of causes, are committed under one collective name, although the delegation is restricted either as to time or as to places.

One delegated for the universality of causes is called a quasi-Ordinary, and can subdelegate, not indeed his whole jurisdiction, but one or another cause. It is otherwise with one delegated for a particular cause, who cannot subdelegate unless he has been delegated by the Supreme Prince,¹ and he has not chosen in the delegate the industry of the person, as will be said at n. 150.

Someone can be delegated either by man or by law: he is delegated by man who receives his delegation immediately from the Ordinary, or from another having the faculty of delegating. He is delegated by law who has delegated jurisdiction from the commission of common law, or even from custom. You have examples in Trent.²

5° Into immediate and mediate. Immediate jurisdiction is that which can be exercised generally and independently of the case of necessity. The Supreme Pontiff in the whole Church, the Bishop in his diocese, the Pastor in his parish possess immediate jurisdiction. But mediate jurisdiction is that which cannot be exercised except in certain cases determined by law: such is the power of Archbishops over the subjects of suffragans.

I said: over the subjects; for one must speak otherwise of the suffragan Bishops themselves, over whom the Metropolitan has immediate jurisdiction.

150. Questions. - Quaer. 1° Who can delegate?

Resp. 1° Generally, whoever has ordinary power.³

2° As to delegates, they are either delegated by the Pope, or by others. If someone has been delegated by the Pope or by the Sacred Congregations, he can subdelegate. Make exception a) unless there is a presumption that the industry of the delegate himself has been chosen by the prince or by the Pope.⁴ But when the industry of the person is judged to have been chosen, Monacelli explains thus:⁶ "1° When, by reason of confidence, it is committed to another; 2° when conscience is burdened and the proper name is expressed; 3° when the rendering of counsel is required in a certain act at a certain time; 4° when an undetermined business is mandated; 5° when the delegate was given at the instance of a party; 6° when the matter is about a thing and controversy which regards the talent and expertise of the man." 7° according to Bouix, if in the rescript it is said: by himself, or personally. Make exception b) unless the delegated faculty is a bare ministry, or simple execution, as when power of dispensing in marriages or other things is given to the Vicar General. Yet even in this case the Vicar can subdelegate the inquiry and the reception of witnesses as to the question: whether the prayers rest upon truth.² (S) p. 485.

As to those delegated by others than the Pope or the Sacred Congregations, if they are delegated for the universality of causes, they themselves can delegate according to the very common opinion, provided the delegation has been made as by office, or jurisdiction is delegated to someone in perpetuity as a privilege annexed to his office or dignity.³

But if they are particular delegates, or delegates only for certain causes, they cannot subdelegate unless it has been conceded to them by the one delegating.⁵

Neither an ordinary superior nor delegates for the universality of causes, who are held as Quasi-Ordinaries, can, without consulting the Prince, commit their whole jurisdiction to another, because, as Reiffenstuel says⁴ when speaking of an ordinary Judge: "An inferior judge, without the prince, cannot by his own authority constitute another ordinary Judge in his place."

151. • Quaer. 2° In how many ways can delegated jurisdiction cease?

Resp. 1° By renunciation of the delegate, accepted by the superior.⁵

2° By revocation of the one delegating, which however does not obtain effect unless it is notified to the delegate.⁶

3° When the number of cases for which the delegation was made has been exhausted, as in Fac. E, p. lxxiv, although the time has not yet elapsed.

4° By lapse of the determined time,⁷ or when the business for which it was given is finished. (A) p. 478.

5° By the death of the delegate, if the delegation was personal; or by loss of office or dignity, if it was real; for delegation is in the manner of a privilege. But a real privilege, or one annexed to an office, passes to successors in the office; but a personal privilege, just as it follows the person, although he has lost the office, so also is extinguished with the person, although someone succeeds him in the office.

I say: although he has lost the office. Suppose, for example, that a pastor has received the personal privilege of blessing rosaries with application of indulgences, - although he ceases to be a pastor by making profession in some religious institute, he will not lose the privilege.

But whether the delegation was personal or real must be discerned: a) from the words which the one delegating used. Thus it will be real if it is said: We delegate to the See of Baltimore, or to you and your successors; but personal if the one delegating used these or similar words: to you, in whose prudence in managing affairs of this kind we greatly trust; b) from the subject matter. Thus from practice a delegation made to a pastor for absolving from certain reserved cases is judged personal, even in an indefinite mode; likewise faculties conceded by the Holy See for a time to Bishops for dispensing in certain impediments, and a transitory delegation made by the Pope to a Bishop for some particular business; c) if neither from the words, nor from the subject matter, can something be certainly defined, it will be held as real if only the dignity is expressed, as to the Archbishop of New York; personal if only the name (or, according to Sanchez,¹ the name and at the same time the dignity) of the delegate is expressed, as if it had been said: to John N. N., or even to John N. N., Archbishop of Baltimore.

6° By death or any removal of the one delegating. But in this case a distinction must be made between the contentious and the gracious forum. In the first, delegated jurisdiction expires if, the matter still being intact, the one delegating departs from life or in some other way loses his office.² But the matter ceases to be intact by citation, as is more commonly held,³ or at least by the joining of issue. - In the second, it does not expire by death or change of the one delegating,⁴ if the delegation given to someone must be held as a grace already made, unless it was conceded with the clause: "until it shall please us," or "at our judgment or good pleasure," and the matter is still intact. But in the clauses: until it is revoked; at our revocation; at the judgment of the Apostolic See, or of the Bishop; until I shall will, that force is not present. - But if it is to be held as a grace to be made, the matter being intact, jurisdiction ceases by death or change of the one delegating. (M) p. 479.

Delegation, however, is held as a grace already made whenever it is given to someone for indeterminate persons;² because in this way to have the power of conferring grace on others is a true prerogative. But if the person in whose favor the jurisdiction is to be exercised is determined, then the jurisdiction must indeed still be judged a grace already made if the delegate must be held as a necessary executor, as happens when a dispensation over an impediment of marriage is obtained from the Holy See; for the grace has then been made to him with whom dispensation is to be made; hence the delegation then does not cease by the death of the Pontiff. - But if the delegate is not a necessary executor, namely if he can impart or deny the grace at his judgment to the determined person, then the delegation is not a grace already made, but rather one to be made, and, the matter being intact, ceases by the death or change of the one delegating.

A matter of the gracious forum is held intact if the delegate has not yet begun to exercise the first act, as if he has not yet called the parties to inquire concerning the truth of the prayers.

152. • Quaer. 3° If the Bishop is delegated, is the Vicar General also judged delegated, and vice versa?

Resp. 1° Negatively, since in delegated causes they do not make one tribunal, unless the one delegating uses the words: We commit to the Ordinary; for under the name Ordinary come all those who, like the Vicar General, have ordinary jurisdiction.

With these things premised, let these be the points concerning the power of dispensing.

153. Principles. - I. The legislator can dispense: 1° in his own laws, because he has as much power for loosing as he has for binding; 2° in the laws of his predecessors, because power either is from him, or at least is subordinated to him.

Hence a) the Pope can dispense in every ecclesiastical law, both universal and particular; indeed also in those Apostolic Constitutions which it is established were issued by the Apostles themselves, inasmuch as they were Presidents of the Church. Such are those which regard the Lenten fast, the observance of Sunday, and similar things. See L. I, 188.

b) The Bishop dispenses in all diocesan statutes, unless however the statute either has been confirmed by the Pope in specific form (n. 102. 4°), or has passed into a contract, which is not dissolved unless with the prior consent of him whose interest it is.

c) Our legislative assemblies in their respective laws.

154. • II. An inferior cannot dispense in the laws of his Superior, unless from delegated power. The reason is that an inferior does not have jurisdiction over the law of his superior. - Thus all.

It is said: unless from delegated power. By force of this power the Bishop dispenses:

A) as delegated by law in the general laws of the Church:

1° If in the law itself, made by the Pope or by an Ecumenical Council, this faculty is expressly conceded to Bishops, or (excepting the power of dispensing, about which the discussion is in Trent, Sess. 24, c. 5, de Ref. Matr.) it is said in it that dispensation can be made in it: for these words, lest they be superfluous, ought to be understood not of the Pope, but of Bishops alone; since, for the Pope to be able to dispense, it is not necessary that this be expressed in the law.

2° If necessity urges (under which in morals also comes great utility), and there is danger in delay; for the Supreme Pontiff is deservedly judged then to concede the faculty.

3° If there is a custom that the Bishop dispense in this or that universal law; for as custom introduces law, so also it grants right (in the case, the right of jurisdiction).

4° If it is doubted whether the case needs dispensation: for then the Doctors commonly say that the Bishop can declare that dispensation is not necessary, or that it can be imparted by him for caution and for the quiet of souls.

5° With individuals only, and in particular cases alone, as to those things which frequently occur; as in vows not reserved, in fasting, abstinence, observance of feasts, the Divine Office, and similar things; for it cannot be presumed that the Supreme Pontiffs wished to impose upon the faithful that burden, too grave, that for businesses of this kind, which are accustomed to occur so frequently, they should recur to him.

I said: with individuals; for the Bishop cannot relax the law of a superior by some general manner, except in the cases of which in 2°. 3°. 4°.

B) Besides, Bishops are accustomed to be endowed by the Holy See for a definite time with special faculties, by force of which they can dispense also in other things than in the aforesaid. See those which are accustomed to be conceded to our Bishops at p. lxx sq.

155. • III. Since dispensation is an act of jurisdiction, which can be exercised only upon subjects, it is plain that those alone can be dispensed who are subject to the one dispensing.

Hence travelers, according to the opinion which St. Alphonsus² calls very common and to which he subscribes, cannot be dispensed by a Bishop not their own in vows and the other things which we alleged at n. 154. 5°. Yet the contrary is sufficiently probable to the Saint as to travelers arriving at another place as at the end of a journey. Indeed, and for any travelers whatsoever I would say this today, because the consent of their Ordinaries is prudently presumed. But it is certain a) that vagi can be dispensed by the Bishop in whose diocese they here and now are; otherwise they would have no one by whom they could be dispensed; b) that the legislator and those who have obtained a universal faculty of dispensing with others can dispense also with themselves; for the power of dispensing pertains to voluntary jurisdiction, which someone can exercise even upon himself.

156. • IV. Whether, when, and how a delegated faculty of dispensing 1) can be subdelegated; 2) ceases, is to be concluded from those things which we said above concerning the subdelegation and cessation of delegated jurisdiction (n. 150. 151).

157. • V. The power of dispensing, even delegated power, given as a grace already made (n. 151. 6°), since it is favorable, is to be interpreted broadly; but the dispensation itself, since it is odious and as it were a wound inflicted on the law, from whose obligation it frees, is to be interpreted strictly, unless it is necessary (n. 148. 7°), or given of one's own motion, or inserted in the Body of Law, or conceded to a community, or for the common good; for then it is held as a favor.

158. Questions. - Quaer. 1° Can the Pope - since an inferior does not have jurisdiction over the law of a superior - dispense in divine law?

Resp. He can dispense from a just cause in those things in which divine right arises from the human will, as in vows and in oaths. Whether in the rest, from a most grave cause, he can truly dispense, or only declare that divine right then ceases, is controverted. The negative opinion is more probable to St. Alphonsus; although to him it is also very probable that the Pope can declare that in some particular case divine law does not oblige.¹

159. • Quaer. 2° Can the Bishop in his diocese dispense from laws made in a Provincial or National Council?

Resp. Affirmatively, provided there is no question of laws whose dispensation the Council has specially reserved to itself. Thus St. Alphonsus² and Benedict XIV⁴ against others. The reason alleged by St. Alphonsus is that this is greatly expedient for the good of the faithful; for on the one hand there can be cases in which a dispensation of this kind is useful, indeed necessary; but on the other it seems equitable that Bishops then have the faculty of dispensing in decrees of this kind, so that another Provincial Council need not be awaited, or recourse made to the Apostolic See. Make exception if the Council was confirmed in specific form, in which case he will be able to dispense only in those cases in which he can do this in Pontifical law (n. 154).

160. • Quaer. 3° Can pastors validly dispense in some matters?

Resp. By ordinary law, by reason of custom, they can dispense with subjects, for particular cases, in fasts, in abstinence, in works prohibited on a feast day, and other things of this kind, which occur frequently and need prompt dispensation, so that recourse to the Bishop is not easy.⁵ Our priests are accustomed to have broader faculties from the Bishops; but let each one consult the letters of his jurisdiction.

161. • Quaer. 4° Can Bishops subdelegate beyond the time for which the Holy See delegated them the faculties of dispensing or other faculties which they are accustomed to obtain from the Holy See, with the power of communicating them to suitable priests laboring in their diocese?

Resp. Negatively, speaking speculatively; for no one can transfer more right to another than he himself has. Otherwise, as indeed it seems to me, if the matter is considered practically; for since Bishops are accustomed to obtain these faculties again from the Holy See before the time for which they were conceded has elapsed, they are known to concede them anew by the act of their will by this very fact, that they had conceded them before, for example, until revocation.