Cessation of Obligation

The obligation of a law, while the common law itself remains, can cease in a particular case in three ways: a. through causes de-obliging from the law; b. through dispensation; c. through privilege.

Cessation of Obligation.—The ordinary ways in which a law ceases to be obligatory for an individual are: (a) on the part of the subject, that he ceases to be subject to the law (exemption), or is unable to observe it (excuse); (b) on the part of the lawgiver, that he removes the obligation for the individual (dispensation).

As to exemption from Church laws note: (a) he who ceases to be subject to the law (e.g., one who has received a privilege of exemption, or who has departed from the place where the law is in force), is of course not obliged by the law; (b) neither is he guilty of any fault if he brought about his freedom only just before the law became effective and with the sole purpose of being exempt; for the law does not oblige that one remain subject to it.

Excuses from the law are reduced to two, namely, ignorance and impossibility.

(a) Ignorance excuses from the guilt of non-observance, if it is inculpable (see 24 sqq.). The question now is whether or not and when it excuses from legal consequences, such as invalidity, penalty, reservation of sin, etc.

(b) Impossibility excuses from both obligation and guilt.

Ignorance of ecclesiastical law or of a penalty attached to the law has the following effects determined in the law: (a) No kind of ignorance excuses from irritating or inhabilitating laws, unless the contrary is expressly provided for in the law itself (Canon 16, Sec. 1). Thus a person who contracts marriage, while ignorant that he and the other person are first cousins, is invalidly married.

(b) Affected ignorance of ecclesiastical law or of the penalty alone does not excuse from any penalties latae sententiae (Canon 2229, Sec.1).

(c) If the law contains the following words: praesumpserit, ausus fuerit, scienter, studiose, temerarie, consulto egerit, or others similar to them which require full knowledge and deliberation, any diminution of imputability on the part of either the intellect or the will exempts the delinquent from penalties latae sententiae (Canon 2229, Sec.2). (d) If the law does not contain such words, crass or supine ignorance of the law or even of only the penalty does not exempt from any penalty latae sententiae; ignorance that is not crass or supine exempts from medicinal penalties, but not from vindicative penalties latae sententiae (Canon 2229, Sec.3, 1).

Other specific determinations of the law include: (a) Inculpable ignorance of the law itself excludes moral imputability (Canon 2202, Sec.1); actual inculpable inadvertence or error in regard to the law has the same effect (Canon 2202, Sec.3). (b) Culpable ignorance, or culpable inadvertence, or error concerning the law or concerning the fact diminish imputability more or less in proportion to the culpability of the ignorance (Canon 2202, Sec.1). (c) If the ignorance, even inculpable, affects only the fact of the existence of the penalty, it does not exclude imputability of the delict, but it does diminish it (Canon 2202, Sec.2).

Absolute or physical impossibility (i.e., the want of the power or of the means of complying with a law), of course, excuses from its observance; for no one is bound to what is impossible. This applies to divine law, and hence much more to human law. Example: He who is unable to leave the house is not obliged to go to Mass.

Moral impossibility—that is, the inability to comply with the law without extraordinary labor, or the imminent danger of losing a notable good or of incurring a great evil—does not excuse from the observance of ecclesiastical law when this law receives through circumstances the added force of the negative law of nature. This happens when the evil that will result through the observance of the law bears no proportion to the evil that will result from its violation, the former being private or temporal or human, the latter public or spiritual or divine; for the law of nature forbids that the common welfare, or the salvation of a soul, or the honor of God be sacrificed for the benefit of an individual, or for the life of the body, or for the welfare of a creature. Example: The command to abstain from meat on Friday obliges, if one has been ordered to violate it as a sign of contempt of God or of religion, even though death is threatened for refusal.

Moral impossibility excuses from the observance of a human law in the following cases:

(a) One is excused when a considerable loss in health, reputation, spiritual advantage, property, etc., or a grave inconvenience will result from observing a law which is not a prohibition of nature in the sense of the previous paragraph; for the legislator cannot impose obligations that are needlessly heavy, and hence positive law does not oblige in case of such moral impossibility. Example: Our Lord reproved the inhuman rigor of the Pharisees, who insisted that their regulations must be observed, whatever the difficulty or cost.

(b) One is excused when a lower or less urgent law is in conflict with a law that is higher or more urgent. In such a case the greater obligation prevails, and the lesser obligation disappears. Examples: The divine laws that one must preserve one’s life or administer Baptism to a dying person prevail over the human law of attendance at church. The less urgent law of fasting yields to the more urgent law of devoting oneself to duties required by one’s state of life, if there is a conflict between the two laws.

The loss, evil or inconvenience that constitutes moral impossibility with respect to a law, must bear a proportion to the law itself; and hence the higher or the more imperative the law, the greater must be the reason that suffices to excuse from it.

Only a learned and prudent man can determine whether moral impossibility exists with reference to a particular case, and hence it would be dangerous for those who are not theologians to decide, either for themselves or for others. The points that have to be considered in judging are: (a) whether or not the difficulty is of a gravity proportionate to the importance of the law (e.g., a graver reason is required to excuse from a law that obliges under mortal sin than to excuse from a law that binds under light sin); (b) whether or not the difficulty is grave in relation to the person concerned (e.g., an obligation that is easy for a healthy person may be very difficult for one who is infirm).

It is never lawful to bring about either physical or moral impossibility of observing a law, if this be done with the sole or principal purpose of escaping one’s duty. Example: To go away on Saturday in order to avoid Mass on Sunday.

It is lawful to cause impossibility of observing a law, if there be some sufficient reason for doing this; for it is lawful to do something from which two effects, one good and the other bad, result, if the good effect is the one intended, and there is a sufficient reason for permitting the evil effect (102 sqq.). Example: It is sometimes lawful to do some extra work that is very useful, even if the labor makes one unable to observe a fast.

The sufficient reason spoken of in the last paragraph is one that is proportionate to the urgency and importance of the command and to the frequency of the non-observance. Examples: A greater reason is required to take up some work which will make it impossible to keep the fast, if this be done on the fast day itself, than if it be done the day before. A far greater reason is required to take up some work that makes the observance of the fast impossible, if this happens frequently or habitually, than if it happens only once or twice.

1. On the nature of those things which de-obligate. - 2. On the voluntary placing of de-obligating causes.

108. • De-obligating causes are either exempting or impeding. The former are those which totally withdraw one from the dominion of the law, for example, if someone betakes himself outside the place which the law affects. The latter are those which impede, or excuse, a subject remaining under the law from the fulfillment of it. But these impeding causes are reduced to ignorance and impotence.

Principles. - I. Exempting causes totally free from the obligation of law; for no one can impose a precept on a man not subject to himself. Moreover where some exempting cause is present, he who was subject to the law ceases to be subject to the same law either by reason of territory from which he is absent, or by reason of privilege. - Recall what was said above concerning travelers, no. 94.

II. Invincible ignorance excuses from observing the law, because no one can be obligated to something altogether unknown to him. - But vincible ignorance does not excuse from fault, since it could have been or can be put away by serious diligence. - St. Lig., Apostolic Man, no. 43. - Recall what was said On Human Acts, no. 13, and On Conscience, no. 36.

III. Physical impotence always excuses from observing the law, as the common axiom has it: No one is held to the impossible. Moral impotence likewise excuses; because the legislator is not considered to urge an obligation with an inconvenience which, according to the common interpretation of Doctors, can be had as grave. - See what was said above on the obligation of law, no. 100.

Hence grave fear, damage to society or Religion being excluded, excuses from human law; because human law does not oblige with grave harm, as was said above, no. 100. It also sometimes excuses, although with more difficulty, from a positive divine precept, for example, from the integrity of confession; indeed also from an affirmative natural precept, for example, of preserving a deposit with danger of life. Yet it never excuses from a negative natural precept, because the object of this is intrinsically evil. Nor say that it is licit to steal in extreme necessity; for then it ceases to be theft. - St. Lig., no. 175; Apostolic Man, no. 44.

109. • QUESTION. Whether one who is unable for the whole is held to the part?

I answer affirmatively, when the matter of the law is divisible, and in the individual parts the reason of the precept remains. It is clear besides from prop. the following proposition condemned by Innocent XI: He who cannot recite Matins and Lauds, but can recite the remaining Hours, is held to nothing, because the greater part draws the lesser to itself. Except if the possible part is so slight that it conduces in no way to the end of the precept. - Thus commonly.

Hence 1. He who cannot fast in Lent ought to abstain from flesh meat, if he can. Likewise he who cannot fast on all days is held on the days on which he can without grave inconvenience.

2. If someone lacking a Breviary knows a few things from the Hours by memory, he is not held to recite them; otherwise, if he holds by memory a notable part, for example, Vespers or Compline. - St. Lig., book 4, no. 134, rightly says that an infirm Priest who is not able to read the whole Office, and doubts whether he can read a part, is not held even to a part, lest he undergo danger of anxiety, or notable detriment of health.

3. He who vowed a pious pilgrimage, and is not strong enough to complete the whole journey, is not held to begin it, because neither the end nor the reason of the vow can be obtained. - St. Lig., Apostolic Man, no. 45.

110. • De-obligating causes from observing the law can be placed either directly or indirectly, according as the agent is moved either by the end of withdrawing himself from the obligation of the law, or by another cause, nevertheless with the impediment of observing the law foreseen.

Besides, causes of this sort can be either proximate or remote, according as the law urges either shortly, or only after a notable interval of time.

Principles. - I. It is always licit to place exempting causes, and more probably even directly and proximately. The reason is that it is licit for each one to withdraw himself from the dominion of the law, for example, by seeking a place where the law is not in force ¹. - St. Lig., no. 156.

¹ ** Namely, the law obliges you to observe it as long as you remain a subject: but it does not oblige you to remain a subject. The same must be said if someone fortifies himself by a privilege, lest he be held by some law, for example, of abstinence from flesh meat, to evade which he devotes himself to the service of some hospital, or receives the Bull of the Crusade.

II. But it is not licit directly to place impeding causes, whether proximate, or even remote: the reason is that as long as someone is subject to the law, he cannot will to infringe it without such a will being a violation of the law itself ². - Reuter, no. 198.

² ** Generally this does not seem true. And indeed who will condemn him who, lest he fast, devotes himself through Lent to the service of the sick laboring under plague?

III. Indeed it will not be licit even indirectly to place proximately impeding causes, unless a proportionate necessity is present from elsewhere. The reason is that a law proximately urging proximately binds the will, and binds it to applying the necessary means lest the law be violated, and therefore to not throwing in impediments.

IV. But more probably it is licit, even without reason, to place remote and indirectly impeding causes. The reason is that the legislator is not considered to wish to confine liberty so greatly ³. For it would be too grave a burden if each one, long before the obligation of the law, were bound to abandon all works unable to be joined with that obligation, and to wait for the time of the obligation. - Lacroix.

³ Concerning the obligation of avoiding causes which impede, for example, fasting, hearing Mass, and things of this sort, Suarez excellently has these things (On Sins, disp. 3, sect. 4, no. 10): In order that these omissions be indirectly voluntary, and therefore imputable to fault, it is necessary that they not only be foreseen, but be such that the precept obliges to avoiding, for example, sickness, lest they follow: but positive precepts do not oblige to this except when the omissions follow proximately and, morally speaking, as though at the same time. From this it is also effected that when those omissions are not directly willed... they are rarely imputed to fault; because those positive precepts do not oblige with so much rigor that on account of this someone is held with so much rigor to guard beforehand against all those things which can impede their execution.

But when a cause must be considered proximately impeding, and when only remotely, can scarcely, or not even scarcely, be established by some general norm. And indeed that which precedes the time of fulfilling the precept by a space of several days is customarily held as remotely impeding; but the mind of the legislator and the gravity of the thing prescribed, and also the judgment of prudent men and the practice of the upright, must always be kept before the eyes. - See Sanchez, On the Decalogue, book 1, ch. 15, no. 4.

111. Resolves. - 1. He sins who on a fast day without just cause undertakes some labor by which he becomes unable to fast; the reason is that a law proximately urging demands that without just cause an obstacle not be placed to fulfilling it. - St. Lig., Apostolic Man, no. 20.

2. But it is certain that excommunicates are held to seek absolution from censure, so that they can satisfy the divine precept of paschal Communion. The reason is that divine precepts urge more strictly than human ones, and undergo human interpretation less. - St. Lig., Apostolic Man, no. 21. For the same reason, with paschal time already begun, you cannot go away to a place where you will not be able to communicate, without first having satisfied the precept itself. - Lacroix, no. 791.

3. He does not sin against the precept of hearing Mass who begins a journey foreseeing that on the following Sunday he will not be able to hear Mass. Yet he is not excused who does this when the precept is already urging at least morally, namely either on the same feast day or one or another hour before. Except unless some necessity or just cause intervenes.

4. Tailors and shoemakers sin who on the day before a feast day do not prepare necessary garments and shoes, if they can do this without grave inconvenience. - Reuter, no. 199. - See Cases, no. 103 and following.

— In what way subjection ceases. Since a law obliges only the subjects for whom it has been made, when subjection has been removed, it is manifest that the obligation itself ceases. But subjection is taken away both by a changed quality or condition of the person which is supposed by the law, and by privilege.

— On account of the changed condition which is supposed, a territorial law does not oblige even a subject outside the territory; a law made for laymen no longer obliges him who becomes a cleric; nor, on the contrary, does a law proper to clerics now oblige a cleric who has been reduced to the lay state. Cf. cc. 136 § 3; 141 § 2; 211; 213; 214; 648; 2305 § 1; 2358; 2387; and note, c. 213, the exception made for the obligation of celibacy which clerics in sacred orders have contracted.

And because a law of itself obliges no one to remain a subject, he who has made himself immune will never sin against the laws from which he is exempted. Although he could have sinned against another law, as if the immunity follows a penalty because of a delict, or if someone has illicitly changed his state.

— I. Notion. Privilege etymologically means a private law, and is customarily described: A private right granted to certain persons. This right is generally understood as favorable to him to whom it is granted. More accurately, privilege will be called a particular and non-necessary right granted with a benevolent intention to certain persons, whether taken individually or commonly.

We say non-necessary, in order to distinguish privilege from laws, certainly particular, which order the state, office, etc., of several persons.

Therefore the various laws which suitably regulate religious life are not privileges; what is bestowed upon religious beyond that ordering, such as exemption from diocesan jurisdiction, faculties of regular confessors: these are privileges. And because right is understood as favorable, the various incapacities which affect a secularized religious are not privileges.

¹ Cf. the learned articles of the illustrious Louvain professor, A. Van Hove, in Nouvelle Revue Theologique, 1922, January and following, De la notion du privilege.

— II. Divisions. 1. From relation to existing laws, privilege is distinguished as privilege beyond the law and privilege contrary to the law. Beyond the law is that which, if it is granted by no common law, is nevertheless prohibited by none: thus various faculties or powers granted to persons not incapable by common law of having them. By a privilege contrary to the law someone is withdrawn from a law by which otherwise he would be bound. Therefore a privilege contrary to the law at once supposes and takes away subjection to the law. Insofar as it supposes subjection to the law, a privilege contrary to the law is granted only to subjects; insofar as it takes away subjection, at least if it was given for private advantage, it requires strict interpretation (Cf. c. 68, coll. with c. 50, and what will soon be said concerning interpretation).

Are there privileges according to law? If the matter is considered, they cannot be, since they would give what the law itself concedes. But if the form is considered, or the title by which something is had, nothing prevents a title of having certain things from being granted independently of the common law and firmer than the law itself, so that, the law having been suppressed, the concession remains because of the subsisting title.

This distinction is greatly to be attended to, for example in the constitutions of religious which materially refer to the common law of religious. When the common law has been changed, the constitutions themselves will be changed, if the dispositions inserted in them are merely as of common law; on the contrary, they will remain of themselves, if they effected a peculiar right or proper right of the institute.

2. From motive, privilege is distinguished as gracious, which proceeds from mere liberality; remunerative, which proceeds from gratitude for merits; onerous, which has been granted by way of a pact with a certain mutual promise. That a remunerative privilege must of itself be understood more benignly than one merely gracious is clear; but by the quality of an onerous privilege the firmness rather than the interpretation of the privilege is affected.

3. From title of acquisition, privileges are acquired either by direct concession, which title is plainer and more certain, or by communication, or by legitimate custom, or by prescription itself.

Furthermore direct concession can be made either by law, or by particular indult, and that either at the instance of a party or motu proprio. This latter, since it shows the inclination of the Legislator, must be understood more benignly. That which has been conceded by indult is more strictly a privilege.

When the form of law is observed, it is more certain that the author of the privilege is moved by the intention of the common good, which intention requires a more benign interpretation. Privileges conceded by general law are also said to be contained in the Body of Law or in the Code, since the Code must contain all general laws, of themselves perpetual.

Privileges of this kind pertain to the universal ordering of society. And to these same privileges both the norms of privileges and the norms of laws, in favorable matters, must be applied; so that, if both norms cannot be composed at the same time, the norms of laws must prevail ¹.

A privilege which is conceded by law is never contrary to law, simply as such, although it can be contrary to common law.

By a not dissimilar reason, the canons concerning custom are also to be applied to privileges which are acquired by custom.

By prescription, however, no new juridical norm is established, but only a subjective right is bestowed, for example jurisdiction. Wherefore a privilege so obtained is a privilege only analogically.

Communication of privilege means a concession made after the likeness of a privilege conceded to another person. A privilege conceded after the likeness takes its interpretation from the directly conceded privilege which it imitates; nevertheless it can subsist independently of the former, so that it is not affected by the revocation or change of the former privilege. The letters of concession must be consulted.

¹ A privilege which has become common by accretions of the rights of those privileged must be distinguished from a privilege which was immediately conceded by common law. The first does not cease when the common law is taken away; while the other follows the fortunes of the common law.

— Communication of privileges. This quasi repetition of a privilege can be conceded by a particular disposition, or can flow from a general law, which generally and in advance makes all the privileges of some person or Institute common with other persons and Institutes. This is more properly called communication of privileges, which itself is twofold: one principal, the other accessory (c. 65). Communication conceded in principal form bestows upon the privilege thus acquired a subsistence independent of the former concession; while a privilege communicated in accessory form participates in the vicissitudes or fortunes of the direct or principal concession. Thus formerly, but not today (cf. c. 613), the privileges of one regular Order were communicated with very many other regular Orders in principal form; while secular Third Orders participate in the privileges of the first and second Order in accessory form. But every communication, from the nature itself of the matter, must be contracted to those privileges which had been conceded without special relation to a certain place or thing or person, and which do not surpass the capacity of the subject. Wherefore, for example, privileges conceded to some sanctuary because of antiquity or possession of a miraculous icon will have to be excluded even from a general communication; nor can laymen acquire clerical privileges by communication. But from the positive disposition of c. 64, privileges conceded for a time, or those which were acquired by the one with whom communication is conceded not directly but by communication, are not contained in general communication.

Custom, since it can take away a law, is also valid for conferring the right of some immunity or exemption.

By prescription, goods and rights, and jurisdiction itself, can be acquired, so that prescription is numbered analogically among the sources of privilege.

— 4. From the subject, privilege is distinguished as real, which reaches physical persons through their relation to a moral person (a community) or to a thing: a dignity, place or territory, house ¹; and personal, which immediately benefits persons. A privilege of a pious cause, granted to pious places, to a religion, or to other moral subjects, is counted rather among personal privileges.

5. From the immediate effect, privilege is distinguished as merely favorable, which is harmful or onerous to no person or law, and odious, which, while it favors one, imposes a burden or encumbrance upon another or is opposed to a more common right.

¹ Thus in the city of Pilsen, joined to the possession of certain houses is an "action" or title of association with the greatest factory of beer.

— III. Concerning the interpretation of privilege, these things must be observed.

1. "A privilege must be estimated from its own tenor, nor is it lawful to extend or restrict it" (c. 67). And "that interpretation must always be used, so that those increased by the privilege may appear to have obtained some favor from the indulgence of the one granting" (c. 68).

2. In doubt, a privilege which injures rights acquired by others, or for the advantage of private persons is opposed to law ², or has been obtained for the attainment of an ecclesiastical benefice, must be interpreted strictly; all others broadly. Cf. c. 68, compared with c. 50. The reason is because a privilege of itself arises from the beneficent will of the Superior.

And causes are of greater breadth: the motive, if the privilege is remunerative; the mode, if it has been conceded by law or motu proprio; the subject, if it is real, or granted to a pious cause, a pious place, a religion.

² Privileges conceded by law, however, will have to be interpreted like the laws themselves.

— IV. The use of a privilege is of itself free. Yet it happens that a community, from an obtained privilege, establishes a norm obliging its members: thus, as to the breviary, proper offices of the religion are recited by religious from a privilege whose use is necessary for them; and a free option, which for example can be left to a religion for votive offices, is not always permitted to individual religious.

We must also use privileges whose very use relates to the common good of the society or class to which we belong: thus clerics must, as far as possible, oppose clerical privileges to one violating them, so that they may preserve them intact.

And even the use of a personal privilege becomes necessary by accident from some virtue. Thus, after hearing a confession, a confessor will have to use his faculty in reserved cases by a certain tacit compact by which, like a physician, he promised to the sick man or penitent the full treatment of which he has supply. (Genicot, 1, 147). To the point is the Code, c. 69: "No one is compelled to use a privilege granted solely in his own favor, unless an obligation arises from another head."

— Privileges cease: when the day arrives up to which they were granted; when the person has been extinguished or the thing to which they adhere has been absolutely suppressed; by renunciation legitimately made and accepted by the competent Superior; by express or tacit revocation: for example by a contrary law made by the Superior of him who conceded the privilege; by liberative prescription of him to whom the privilege is onerous (Cf. cc. 60, 71-78).

On these causes and on revocatory clauses jurists must be approached. Let these things be enough for us. It is not lawful for private persons to renounce real privileges or privileges conceded to a community. Nor can a community renounce a privilege given by way of law, or if the renunciation yields to the prejudice of the Church or of others (c. 72 § 4). Tacit renunciation can be by non-use, if there is question of a privilege which is onerous to another. Otherwise non-use, as such, does not take away privilege, nor abuse. But the competent authority can deprive one abusing privilege of it as a penalty, just as it can take away privileges which, as the years pass, it has judged have become unsuitable.

235. Notions. Impotence is one thing absolute or physical, another moral. Absolute impotence for fulfilling a law is present when man is altogether incapable of observing it; for example, a cleric who without fault has lost his Breviary and cannot have another is situated in absolute impotence of observing the law concerning recitation of the Breviary. - Moral impotence is called that which, according to the prudent judgment of a discreet man, renders the work prescribed by law not indeed absolutely but morally impossible; or moral impotence is present when the prescribed work cannot be done except by employing altogether extraordinary labors. For example, a cleric who is held to labor through almost the whole day from his office is situated in moral impotence of reciting the Breviary. But I have deliberately said that moral impotence must be established in individual cases according to the prudent judgment of a discreet man, because no general norm is given to be employed in all matters. Therefore in any case all the circumstances both of the prescribed work and of the powers of the obliged man must be considered.

236. Principle. Absolute impotence excuses from every law; but moral impotence is wont to excuse from every positive law, but not from natural law.

The reason for the first part is that according to the well-worn adage "no one is held to the impossible." But in the Council of Trent³⁴ it is said in the words of St. Augustine: "God does not command impossibilities, but by commanding admonishes you both to do what you can, and to ask for what you cannot, and he helps that you may be able. His commands are not heavy, whose yoke is sweet and burden light."

The reason for the second part is that moral impotence renders the prescribed act so difficult that the greater part of men would never, or at least most rarely, perform such an act (which otherwise is not necessary from its own nature). Therefore if the legislator, foreseeing so many transgressions of the law, nevertheless urged it, now such a law would not be useful to the common good, but harmful; and therefore it would not be a true law. Wherefore it is most commonly said: "No positive law obliges with great inconvenience."^34a This indeed is valid not only of human law, but also of positive divine law. Hence, for example, a penitent is excused from the divine law of integrity in confession if there is grave external inconvenience (cf. below concerning the integrity of confession). A man is not held to the ecclesiastical law of fasting or of Sunday Mass if from this he would have to suffer grave damage. - Nevertheless by accident (chiefly because of an added natural law) sometimes positive law obliges even with very grave inconvenience, namely if 1. its violation would yield to hatred of religion or contempt of God. Thus it is not licit to eat meats on a forbidden day if a tyrant demands this in hatred of religion, as the example of Eleazar shows; 2. if otherwise great damage would arise to the common good. Hence a soldier must remain on watch, even if death threatens him from it; the human legislator can, when the common good requires it, prescribe heroic acts;³⁵ ecclesiastical invalidating laws, for example, concerning the diriment impediments of marriage, are wont to oblige even with great inconvenience.

Natural law, provided it is clearly known, always obliges and admits no excuse. The reason is that violation of natural law is intrinsically evil. But it is never licit to do something which is intrinsically evil. Therefore, if someone would even have to lose life unless he lied or fornicated, nevertheless he could not lie or fornicate. It must be noted, however, that natural law is not to be taken merely theoretically, but practically, that is, as here and now it presents itself with all the circumstances. For it can easily happen that the theoretical natural law in a particular case does not oblige because of conflict with another more powerful law; for example, natural law dictates that one must not steal; nevertheless in a particular case it is licit because of special circumstances to take another's things, as if someone is situated in extreme necessity, or if the leader of a war has permitted soldiers to take the spoils of enemies. Therefore in practice one must see whether the act clothed with all the circumstances is still against natural law or not. For facilitating a judgment of this kind, the rules given above concerning the indirect voluntary conduce greatly.³⁶

³⁴ Sess. 6, cap. 11.

^34a Cf. Cod. iur. can. c. 2205, § 2.

³⁵ Cf. above n. 184. Those things which Cajetan teaches concerning the obligation of human law, although danger of death is present, in Com. super I-II, q. 96, a. 4 and II-II, q. 125, a. 3, are to be understood with a grain of salt. Billuart rightly, clearly, and briefly treats (De leg. diss. 4, a. 6) the question: "Whether human law obliges with certain danger of life, or of another grave damage."

³⁶ Cf. above n. 52 sqq.

237. Scholion. On an exempting cause and an excusing cause. Authors are wont here to append the question whether it is sometimes licit voluntarily to posit causes producing physical or moral impotence of observing the law. First it is necessary to distinguish exempting causes (also called withdrawing causes) and excusing causes. An exempting cause is departure from the territory or from the dominion of the law. An excusing cause is nothing other than physical or moral impotence of observing the law.

1. Ordinarily it is licit freely to posit exempting causes. The reason is that no one is held (at least ordinarily) to remain under the jurisdiction of a human law. Thus, for example, it is licit to depart from a territory to avoid the particular laws of that territory.³⁷ In ancient times, indeed, in some matters, for example, in the celebration of marriage, it was not licit "in fraud of the law," that is, precisely to avoid the obligation of the law, to betake oneself into other regions, but today this ecclesiastical discipline has been much changed, so that almost always even he who has departed from the territory in fraud of the law is free from the obligation of the law.³⁸ Nevertheless some civil laws do not permit someone to posit an exempting cause. Thus, for example, civil law does not permit a young man who is now about to be enrolled in military service to depart from the fatherland.

2. As to excusing causes, diverse rules are wont to be brought forward by which it is discerned when it is licit voluntarily to cause physical or moral impotence of this kind. Some authors distinguish between causes directly and indirectly, proximately and remotely impeding the observance of the law. But all these things seem to be rather arbitrary. In this matter only the rules concerning the indirect voluntary seem to be applicable. For here a cause is posited, from which a twofold effect follows: one good, the other evil. The good effect is that which is intended; the evil effect is the impossibility of observing the law. This evil effect indeed cannot licitly be directly intended, but only permitted. Therefore it is licit to posit a hindering cause of this kind when the end is good and a proportionately grave reason is present. But what reason is proportionately grave must be judged a) from the gravity of the law to be transgressed and b) from the utility joined with this transgression. Thus, for example, some workman who must labor through the whole week in an unhealthy factory can sometimes on Sunday morning make an excursion into the woods to restore his strength, even if from this he cannot assist at Sunday Mass; on the contrary, for a rich man the same excursion with omission of Mass is not licit, because he does not need it in the same way, or he can make it on another day.

³⁷ Cf. above n. 194 concerning travelers.

³⁸ Cf. below concerning absolution of reserved cases III, 429; concerning the place of celebrating marriage III, 757.

217. Two things remain to be discussed: the one of these concerns causes on account of which only the obligation of law ceases or is suspended, while the law remains; the other concerns causes which take away the law itself in perpetuity and for the whole community. In the first case subjection remains, in the second it altogether vanishes.

As regards the causes which take away THE OBLIGATION OF LAW, although in an unequal degree, these are counted especially as five, namely:

1. Ignorance, which takes away the obligation only per accidens, namely by excusing from formal transgression of the law, but by no means from its material transgression.

2. Impotence, whether physical or moral, or fear, which, in a particular case, altogether takes away the obligation; excusing even from material transgression, since the legislator is judged not to have willed, already from the beginning, to extend the obligation to this particular case.

3. Dispensation, which, by a positive act of the legislator, namely by a particular or even general indult, exempts one or several from the obligation of law, but not in a permanent manner.

4. Privilege, which exempts permanently from the obligation either an individual or even a group of persons, and which therefore must be held as a broader or more stable dispensation.

5. Departure from the territory of the legislator, or absence, which cause is called not only excusing, impeding, or exempting, but extracting, because it totally draws the one departing out of the dominion of the law.

Concerning this last cause we have already disputed sufficiently in the preceding chapter, where we treated of travelers (n. 206). It remains, therefore, that we treat of the others in four separate articles.

There will be a fuller discourse concerning ignorance where we shall treat of human acts and sins. Meanwhile it is enough for our matter to note the following things.

218. DEFINITION. Ignorance is defined as the defect of due knowledge. One is invincible or inculpable, namely that which cannot be overcome or taken away, because either doubt concerning the necessity of the thing to be known never came into the mind; or, even if it came into the mind, nevertheless knowledge could not be acquired by moral diligence. Another is vincible or culpable, namely that which, by the application of moral diligence, could and ought to have been overcome (recall the things said n. 16).

219. PRINCIPLES. I. Invincible ignorance excuses from the observance of law, and at the same time from the guilt of fault. For no one can be strictly obliged to that which he does not know, nor could know; and no one sins except by a voluntary act, which essentially presupposes knowledge (cf. n. 125).

II. Invincible ignorance of the law also excuses from the guilt of the penalty annexed to the law. The penalty is decreed in the law on account of fault. Therefore, when the cause ceases, the effect also established by the law ought to cease, as the Doctors commonly teach (I, 160).

If, however, in the external forum, a penalty is dictated by a judge upon one materially delinquent, it must be undergone, as was said above (n. 191).

220. IT IS ASKED. Whether he is excused from the penalty who knows the law which he transgresses, but is ignorant of the penalty annexed to the law?

Resp. Negatively, of itself, because reason dictates that evil, according to its nature, is to be punished.

There is exception: 1. If the penalty is most grave, exceeding the merit of the crime. 2. If it is an ecclesiastical censure, which those who are ignorant do not incur, unless the ignorance is crass, or gravely culpable. The reason is, because to incur a censure there is required contumacy, or virtual contempt of the law. Indeed, if the censure is imposed on those presuming, or sinning rashly, deliberately, or knowingly, crass ignorance excuses; indeed even, not improbably, affected ignorance, because this, although it is grave negligence, nevertheless is not knowledge (cf. n. 1269).

221. The impotence of satisfying the obligation of law is twofold, namely physical and moral.

Physical impotence, which also is customarily called absolute, is had when strength for fulfilling the law is lacking: in which state there is, for example, a sick man who, fixed in bed, cannot be present at Mass on Sundays and feast days. To absolute impotence is referred the necessity of fulfilling a higher law, according to the things said n. 216.

Moral impotence, or excusing fear, is had when the law cannot be fulfilled without danger of grave damage or inconvenience; and it is defined: grave difficulty per accidens joined with fulfillment of the law.

We say per accidens; for, as Sanchez rightly notes (Decal., l. I, c. 18, n. 2), if the law were, in itself, too difficult or burdensome for the whole community, such a cause could not only excuse from the law, but take away the law itself, as will be explained n. 256 ff.

222. PRINCIPLES. I. Physical impotence always excuses from observing the law. The reason is, because "no one can be obliged to the impossible," as the 6th rule of right has it, in the Sixth. Hence, impotence also excuses to which you previously gave cause through sin, for example, by rendering yourself unequal to fasting, provided you grieve for the sin (I, 176; III, 1045).

223. II. Moral impotence excuses from observing the law, if damage in itself grave and relatively graver than the neglect of the law is imminent. The reason for the first is, because the legislator is not to be judged to impose, besides the burden which inheres in the fulfillment of the law, another burden, and this a grave one. We say burden, and this a grave one; because otherwise no law would ever oblige, since the fulfillment of any law whatever is joined with some inconvenience. The reason for the second is, because from two necessary evils the lesser must always be chosen (I, 175).

The gravity of damage depends on several things: 1. on the nature of the law: thus negative laws require graver damage; 2. on the intention of the legislator, who for the circumstances of times can act more mildly; 3. on particular circumstances, which give place to epikeia. In doubt concerning the gravity of the damage, the excuse is valid, if the fact truly exists which truly probably suffices for excusing, as is clear concerning a convalescent who fears lest by fasting the sickness be increased (cf. n. 248).

From this you will gather: Grave fear, for example, fear of losing life or health, with damage to society or religion excluded, takes away the obligation of human law, whether ecclesiastical or civil. It also sometimes, although with more difficulty, takes away the obligation of positive divine law, for example, of the law prescribing the integrity of confession; indeed even of affirmative natural law, for example, concerning a deposit to be returned, as we have already explained above (n. 173-174).

224. III. Impotence of satisfying the whole law, of itself does not take away the obligation of satisfying that part which can be fulfilled. This is clear from the 54th proposition condemned by Innocent XI: "He who cannot recite Matins and Lauds, but can recite the remaining Hours, is held to nothing; because the greater part draws the lesser to itself." By these words the opinion of Navarrus, Diana, Tamburini, and Caramuel is rejected. Except if the law cannot conveniently be divided, or is not accustomed to be divided, or if in the possible part the reason of the precept does not remain (H. Ap., II, 45).

Hence: 1. He who cannot fast in Lent ought to abstain, if he can, from meats. Likewise, he who cannot fast on all days is held on those days on which he can without grave inconvenience.

2. If someone, lacking a breviary, knows a few things from the Hours by memory, he is not held to recite them; otherwise, if he holds in memory a notable part, for example, Vespers or Compline. The reason is, because the divine Office is divisible, and the reason of the precept is preserved only in a notable part.

3. He who vowed a pious pilgrimage, and cannot complete the whole journey, is not held to begin it; because neither can the end of the precept be obtained, nor can the reason of the precept be preserved (I, 177; III, 225).

225. If impotence excuses from law, it is rightly asked:

Whether it is lawful to constitute oneself in impotence of fulfilling some law, or, in other words, whether it is lawful to place or not remove causes which impede the fulfillment of the law?

Note beforehand. a) One thing is an exempting cause, another an impeding cause. An exempting cause is present when someone withdraws himself from the jurisdiction of the law, so that it can no longer reach him. An impeding cause is present when someone, bound by the law or about to be bound proximely, throws himself into such a condition that physically or morally he can no longer fulfill the law. b) The causes which impede the fulfillment of the law are either present, proximate, or remote, according as the law urges at the very time when the cause is placed, or shortly after, or only after a notable interval of time. c) Causes of this kind can be placed either directly or indirectly; according, namely, as the agent is moved either by the end of withdrawing himself from the obligation of the law; or by another end, with the impediment of observing the law nevertheless foreseen. These things having been premised,

Resp. 1. He who places an exempting cause, even if it is done intentionally and directly, with the mind of avoiding the obligation, does not sin. He uses his right (I, 152; III, 1045; ed. G., II, p. 432).

2. It is never lawful directly to place or not remove an impeding cause, even a remote one. The reason: because as long as someone is subject to the law, he cannot will to infringe it without such a will being a violation of the law itself.

Therefore the excommunicated sin who do not seek absolution, precisely for this reason, lest once absolved they be held to paschal communion; likewise those who with this intention go away to a place where they will not be able to communicate in paschal time (III, 235; H. Ap., II, 20).

3. Nor is it lawful indirectly to place, or not remove, a present or proximate impeding cause, which in morals are equated, unless from another source there is present a proportionate just cause excusing. "For every law demands that, without a just cause, an impediment to its observance not be placed" (H. Ap., l. c.); for otherwise it would be finished with the law. But a just cause is one which has proportion both with the gravity of the precept and with the proximity of the impeding cause. See the things to be said n. 272, 273; cf. Sanchez, Decal., l. I, c. 15, n. 4.

4. More probably it is lawful, even without a special reason, indirectly to place a remote impeding cause. The reason is, because the legislator is not judged to will to restrict liberty so much. For it would be too grave a burden if each one, long before the obligation of the law, were bound to omit all works incompatible with that obligation (Bucceroni, n. 221).

226. From these things you resolve: 1. He who, when the law is already urging, foresees that it will be the case that afterwards he cannot satisfy it, is held to fulfill it at the time when he can; for example, if on a feast day you cannot hear Mass about midday, or recite the Hours of the current day later, you are held to anticipate, because the precept already urges. It is otherwise if the time of the precept has not yet begun; for example, you are not held to anticipate paschal time for communicating, nor to use the privilege of reciting Matins on the preceding day, in order to fulfill the precept (IV, 155; VI, 297).

2. He sins against the precept of assisting at Mass who, for the sake of pleasure, enters upon a journey on Saturday, foreseeing that it will happen that on the following Sunday he will not be able to hear Mass. But he is excused who undertakes a journey on Thursday for hunting, or on account of a similar non-urgent cause. The reason for the distinction is, because in the former case the impediment is judged proximate, and in the latter remote (III, 301).

3. Similarly from these things it can be determined whether and when, for example, it is lawful to undertake an office, service, etc., in which someone becomes impotent for sanctifying feasts; whether and how far it is lawful spontaneously to exercise labor, or undertake works of piety, by which a man becomes impotent for fasting; and other things of this kind (cf. n. 1235 and 1238 ff.). See the cases of conscience proposed by the distinguished Lehmkuhl, n. 97-103, likewise the things which the Ami du Clerge has often solved, for example, 1906, p. 982; 1911, p. 1121.

Corollary. From the notions here set forth we can understand what the words signify: to act in fraud of the law. Fraud against law can be done in innumerable ways; nevertheless he alone sins by fraud against law who places an impediment to the law, an impeding cause, and indeed in those circumstances where the law already holds him, or an impediment of such a kind that it is forbidden him by the law to place it. Thus fraud would be present if a rich man, beyond his condition or custom, occupied himself with servile works so that he might be tired, lest he ought to fast. But he will not be guilty of fraud who uses a right which is taken away from him neither by law nor by precept: for example, if someone passes into another diocese where the law of hearing Mass is not in force, or where exceptions are present as regards fasting, even if he does this for this end, that he may be exempted from the law: for the use of the right of departing is not interdicted to him by the law. But if this faculty also is taken away by the legislator, for example, as regards obtaining absolution from reserved cases, it is clear that fraud against the will of the Superior is present (cf. n. 206). Cf. D'Annibale, P. I, n. 176; Gopfert, I, § 13, n. 78.

St. Alphonsus, I, n. 178; ed. G., I, p. 163; Suarez, de Leg., l. 6, c. 18; Mazzotta, de Leg., disp. 4; Billuart, Diss. 5; and celebrated Canonists.

227. DEFINITION. Dispensation is the relaxation of law, made for a time by legitimate authority, in some case in which otherwise the law would oblige.

It is said 1. It is the relaxation of law; for which reason it differs both from epikeia, through which it is declared that some case was never comprehended in the law; and from permission, through which only the violation of law is not impeded, for example, for avoiding a greater evil; and from license, by which law is rather fulfilled. For license is the consent of the competent Superior, under which the law itself concedes that something be done, for a few acts. Hence, if a Superior gives a nun license to go out from enclosure, or to make some expense, he does not dispense in the law or in the vow, but places the condition without which those things would not be lawful; because the law which prohibits going out and spending does not prohibit this absolutely, but only lest it be done without license. Cf. St. Alph., de Privil., n. 1. - Law of itself tends to firmness; therefore of itself it does not generally admit licenses; nevertheless it sometimes foresees and tolerates them. Therefore, in those cases, if the Superior is absent, his license can be presumed; but dispensation is not presumed (Lehmkuhl, I, n. 266). Cf. below n. 239.

2. Made by legitimate authority; because dispensation is an act of jurisdiction, and therefore differs both from excuse on account of some extrinsic cause and from cessation of the law, which is said to be from within; in which cases the obligation of the law is taken away without a new intervention of the legislator, namely by force of the will which he previously had in making the law.

3. For a time, in some case; for which reason it differs both from privilege, which is perpetual and can be according to law, and from derogation and abrogation of law, through which the law is relaxed or taken away in perpetuity, for the whole community.

228. DIVISION. Dispensation can be: 1. Valid or invalid, according as it truly exempts from the obligation of law, or not.

2. Licit or illicit, according as it is obtained with a just cause or without a just cause.

3. Subreptitious or obreptitious, according as something to be manifested is kept silent in the petition, or, on the contrary, something false is asserted.

4. Total or partial, according as it exempts from the whole law, or from a part of the same.

5. Express or tacit, according as it is expressed in words, or is deduced from some fact.

6. Free or necessary, or obligatory, according as its concession merely befits on account of a just cause, or is owed by force of some title (cf. n. 241, q. 3).

But when a dispensation has been denied, although unjustly, the subject is held to the law, because it perseveres in being in force; unless such a cause urges as of itself exempts him from the law: for example, if the necessity of contracting marriage were urging, the denunciations having been omitted, and the Bishop unjustly denied dispensation (I, 179; H. Ap., II, 52). Nevertheless the dispensation is valid if, having been denied by the Superior, it is conceded by the inferior. Except if the Superior had willed to take this also away from the inferior. Lehmkuhl, Cas. consc., 125.

With these things premised, we shall discuss a little more fully: 1. concerning the power of dispensing; 2. concerning the requisites for legitimate dispensation; 3. concerning the use and interpretation of dispensation; 4. concerning the cessation of the same.

229. NOTION. The power of dispensing is jurisdictional; for it is part of jurisdiction, or of public authority (St. Thom., 1.2, q. 97, a. 4).

And thus it differs both from the power of invalidating, which is only dominative and belongs to the master, father, husband, etc.; and from the power of declaring someone exempt from law, which is only interpretative of the will of the legislator, and belongs, for example, to the physician with respect to the sick, to the confessor with respect to penitents, etc. (cf. n. 138).

DIVISION. The power of dispensing is twofold: 1. ORDINARY, which belongs to someone by sole reason of his office, such as the legislator has in his own law, and his Superior or successor; 2. DELEGATED, which belongs to an inferior from the concession of him who is endowed with ordinary power.

But delegated jurisdiction can be conceded: a) by right, by reason of the dignity or office with which it is joined; and in this case it is equivalent to ordinary, and is called quasi-ordinary; b) by man, that is, by a Superior, in which case it is called purely delegated.

Moreover, this purely delegated power is given either absolutely for life, for a decade, for a year, etc., or at the nod or good pleasure of the person, or of the dignity (cf. n. 138, 3.).

Besides, it is sometimes conceded by way of grace, in favor of the delegate: in which way Bishops are accustomed to be given the faculties which they call quinquennial, by force of

which they can dispense in very many impediments of matrimony; sometimes by way of commission, in favor of a certain cause or of a certain person to whom the dispensation ought to be advantageous. The faculty of dispensing by way of commission can still be given in a twofold way, namely: either by way of a grace made, as they say, which happens when a true precept of dispensing is imposed on the delegate, "if, however, the prayers rest upon truth," as ordinarily happens in matrimonial dispensations, in which case the delegate who actually bestows the dispensation is said to fulminate it; or by way of a grace to be made, which happens when a precept of dispensing is not imposed on the delegate, but only the faculty of conceding a dispensation is given, "if namely it seems expedient." St. Alph., de Privil., n. 13; ed. G., I, p. 192.

230. PRINCIPLES. I. Any legislator, or his Superior, or successor in jurisdiction, can dispense with his subjects, both in his own law and in the law of an inferior. The reason is, because things are dissolved by the same means through which their cause is born (Decret. Gregor., Reg. I); and the power of an inferior is subordinated to the power of a Superior. The case is excepted in which the law has passed into a contract; for pacts should be observed by all (III, 255).

231. II. No inferior can dispense in the law of a Superior, except from delegated power; namely insofar as the faculty of dispensing has been conceded to him, either by the Superior himself, or by right, or by custom. The reason is, because an inferior has nothing of power over the will of a Superior, from which the whole force of the law exists; whence it is said in the Clementines: The law of a Superior cannot be taken away through an inferior (c. Ne Romani, de Elect.).

232. III. No delegate can subdelegate another, unless the faculty of subdelegating has been conceded to him, either by the Superior or by right. The reason is, because the power of using jurisdiction is diverse from the power of delegating it, and the one is not included in the other.

We say 1. Unless it has been conceded by the Superior; for this is not rarely conceded. Thus, besides the faculty of dispensing, the power of subdelegating this same faculty to other suitable priests is often conceded to Bishops.

2. Unless it has been conceded by right. Now, the power of subdelegating is conceded by right:

a) To one delegated by a Prince, for example, by the Supreme Pontiff, by the Sacred Congregations, by way of office, as to Nuncios, Legates a latere. We say by way of office; so that delegates who would have been chosen on account of their skill may thus be excluded, as also those whose delegated faculty is a bare ministry, or simple execution.

b) To one delegated, although not by a Prince, to a universality of causes;¹ provided that the delegation has been made to him by way of office, or at least by way of privilege annexed in perpetuity to his office or dignity. Thus, for example, a vice-pastor, universally deputed into the place of an absent or dead pastor, can subdelegate another. Yet this subdelegation cannot be for the whole, but for one or another cause only, as is common with St. Thomas (Quodl. 12, a. 22): "A vicar cannot communicate his whole power, but he can communicate part" (H. Ap., XVI, 82; 2 El. q. reform., n. 4).

As St. Alphonsus rightly notes, VI, 566; ed. G., III, p. 583: confessors furnished with peculiar faculties cannot subdelegate, and the same holds for missionaries. The reason: they are deputed only to the bare exercise of ministry.

233. IV. A delegated faculty can cease for many reasons.

Namely it ceases: 1. by revocation of the one delegating, which nevertheless does not obtain effect unless it is notified to the delegate; 2. by renunciation of the delegate accepted by the Superior; 3. by lapse of the determined time, or when the business is finished, or when the number of cases for which the delegation had been conceded is exhausted. But all special faculties habitually conceded by the Holy See to Bishops and other ordinaries of places are not suspended by their death or cessation from office, but are extended to ordinary successors (Holy Office, Nov. 24, 1897).

But whether it ceases by the death or removal of the one delegating, a distinction must be made. It ceases if it was conceded BY WAY OF GRACE in favor of the delegate, with these or other similar words: at our good pleasure, until it shall have pleased us; otherwise, if it was conceded for a determined time, or until it is revoked, or at the good pleasure of the dignity, for example, of the Holy See, of the Bishop, because a dignity does not die.² But if it was conceded IN THE FORM OF COMMISSION for a certain case, again a distinction must be made: conceded as a grace to be made for a special case, it ceases by the death or removal of the one delegating, if the matter is still untouched; but conceded as a grace made to the petitioner, it does not cease, although the matter has not yet in any way been entrusted to execution (cf. n. 246).

234. From these things it follows: I. The Supreme Pontiff can dispense: 1. in all ecclesiastical laws, even in those which the Apostles, as particular prelates of Churches, established: of which kind are the Lenten fast, the observance of Sunday, the irregularity of bigamy, etc. (H. Ap., II, 55; Istruz., II, 64); 2. in certain divine laws, in which divine right arises from human will, such as vows and oaths, if, however, a sufficient cause is present. But in other divine laws, he can only interpret, or declare, the divine will (cf. n. 135).

II. BISHOPS can dispense: 1. By ordinary right: a) in all episcopal and synodal statutes,³ independently of the chapter and clergy (Bened. XIV, de Syn., l. 13, c. 5, n. 7); b) in the laws of a provincial council, provided they are not specially reserved to the council, or confirmed in specific form by the Holy See; for this is expedient for good governance (Gennari, Quest. de Droit can., q. 328); c) in laws made by the Supreme Pontiff for that particular diocese, in which the faculty of dispensing seems to have been left to the proper prelate (I, 190; VI, 902; H. Ap., II, 57).

In general ecclesiastical laws Bishops generally cannot dispense.⁴ Nevertheless, from the decree of the Holy Office Cum recenter, they can sometimes dispense in the law of fasting and abstinence (cf. n. 1240).

2. By quasi-ordinary right, in the following cases: a) in doubts whether a dispensation is necessary or not; for then the Bishop, and any inferior prelate, can either declare that the law does not oblige in the case, or dispense for caution for the quiet of souls; and the dispensation, once given, is valid even if afterwards it were discovered that it had certainly been necessary; b) in particular cases which frequently or regularly happen, as in non-reserved vows, in fasts, feasts, canonical hours, abstinence from meats, and similar things: for it would be too grave a burden if in cases of this kind, which frequently occur, individual faithful had to recur to the Holy See; c) in a case of urgent necessity, or of great utility, when easy access to the Pope is not open, and there is danger in delay, as, for example, in impediments of matrimony, in irregularities, in reserved vows; because this is expedient for the common good, and this even if easy access is given to one having the faculty of dispensing from privilege of the Pontiff; d) if it is said in the law: until dispensation is given; for "an inferior can dispense in the laws of a Superior, if dispensation is generally permitted in the law" (St. Alph., l. c.).

3. By special and delegated right: namely, besides the ordinary faculties of dispensing which we have numbered here, most Bishops possess special quinquennial or triennial faculties communicated by the Sacred Penitentiary; indeed certain Bishops obtain very ample faculties from the Sacred Congregation of Propaganda Fide.

Here, however, let it be noted: a) Ordinary faculties, since they are at hand to Bishops by force of office, can be given to others by delegation; and when the see is vacant, the chapter, or the capitular Vicar, enjoys them. But the Vicar general does not possess them of himself. Indeed, by his general mandate ordinary dispensations are not committed to him, because they savor of grace, but they are if he is specially delegated to this by the Bishop (III, 288; ed. G., I, p. 559).

b) As regards special faculties, since they are customarily communicated to the Ordinary, they pass to successors, for example, the capitular Vicar. In view of the response of December 17, 1898 (A. S. S., 31, p. 384), by which an end was imposed on the controversy, these special faculties also, without special concession, can be subdelegated to Vicars general and other ecclesiastical men, in a general way or for a particular case, provided this is not prohibited in the faculties, nor the right of subdelegating restricted only for certain ones: for in this case the form of the rescript must be observed exactly.⁵

III. PASTORS, in many places, have from custom the faculty of dispensing, even if recourse to the Bishop is easy, in small and frequent necessities; but since they are endowed with this faculty only by force of custom, they can dispense only in those things concerning which usage has been introduced, as in fasting, abstinence, and works prohibited on a feast day (III, 288, 1032; H. Ap., II, 59).

IV. CONFESSORS in several dioceses, from special delegation, have the power of dispensing in various cases for which recourse to the Bishop would be required of itself.

V. PRELATES OF REGULARS possess rights which will be set forth below, n. 2187 and 2189.

Note, however, that those rights can be exercised only by those who are capable of jurisdiction: whence they do not belong to Superioresses, who cannot dispense (IV, 53; ed. G., II, p. 485). It must also be noted (Holy Office, Dec. 20, 1900) that faculties conceded by the Holy See to Superiors General of religious Orders do not cease on account of their death, or cessation from office, but pass to successors. The same principles are in force here as for rights conceded to a Bishop.

235. Questions. IT IS ASKED 1. With whom, therefore, can a Bishop dispense?

Resp. I. He can with all those who are subject to his jurisdiction. Therefore: with inhabitants, and indeed everywhere on earth; with newcomers, as long as they have quasi-domicile in that territory; with wanderers, as long as they are staying in the diocese, otherwise they could obtain necessary dispensations from no Bishop.

A Bishop, however, nor any delegate, cannot, for example, as regards fasting, dispense with heretics who would wish to abjure, but would desire to postpone conversion. Cf. Genicot, Cas. consc., I, p. 23.

A fortiori he cannot dispense with exempt religious, without the consent of Superiors. If, however, universally, in the name of the Supreme Pontiff, he dispenses in common law, the obligation is suspended also for exempt persons, unless they are held by a special vow or rule (Holy Office, 1871; A. A. S., IV, p. 626). But if exempt persons do not observe the statutes of the rule or a vow, they will no longer sin against a precept of the Church, since dispensation has been given, but against a particular statute.

II. With travelers, if rigorous principles are established, a Bishop cannot dispense; for they are not truly subject to episcopal jurisdiction (n. 206). They would become subjects if, ending their journey, they chose quasi-domicile in the diocese. Thus St. Alphonsus (I, n. 158; ed. G., p. 138), and others solve the question.

Nevertheless the rigor of this opinion is quite probably tempered for cases of necessity. Then the traveler, through his coming, is subject to the authority of the Bishop of the place in which he is found. Therefore, when necessity stands, the Bishop can dispense with him in canonical laws, in vows, in oaths, etc. For it is prudently presumed that the Pope or the Bishop of the traveler consents that the Bishop of the place dispense with a traveler of this kind (Mazzotta, tr. 1, disp. 4, q. 1, c. 3, q. 2.).

Note. Many modern authors indeed think otherwise (Lehmkuhl, I, n. 260; Noldin, I, n. 182; Genicot, I, n. 121). But in view of the intrinsic reason indicated above, and in view of the response of the Holy Office, Nov. 22, 1865 (Coll. S. S., n. 910), it is pleasing to restrict the aforesaid rights of the Bishop over travelers to cases of necessity.

236. IT IS ASKED 2. Whether one having the faculty of dispensing with others can dispense with himself?

Resp. Affirmatively with St. Thomas (2.2, q. 185, a. 8) and others, provided he has a universal power of dispensing, not restricted to a case or person. The reason is, because voluntary jurisdiction, or grace, can be exercised toward oneself. Therefore he who uses this jurisdiction will be able to dispense with himself in vows, ordinary ones indeed, as St. Alphonsus thinks (III, n. 256; H. Ap., II, 64). He will also be able so to order the matter that he commits the faculty of dispensing to a prudent man, to be applied to himself, the prelate.

For legitimate dispensation, that is, for dispensation which is at the same time valid and licit, several things are required: either a) on the part of the one conceding, or b) on the part of the one asking, or of the subject to be dispensed.

237. PRINCIPLES. I. For valid dispensation there is required, on the part of the subject to be dispensed: that the petition be neither subreptitious nor obreptitious, as regards the motive causes set forth, and that the dispensation be accepted by the one dispensed. The reason: otherwise the will of the one conceding is lacking (cf. n. 239).

We said 1. That it be neither subreptitious nor obreptitious, in the sense explained above, n. 228.

But in matrimonial matters, although the Sacred Congregations require that all things be faithfully declared, nevertheless a dispensation is valid if, for a lesser degree, a greater is indicated. See the things to be said n. 2051, 4. Cf. Genicot-Salsmans, II, n. 524.

2. As regards the motive causes set forth, but not as regards impulsive causes.

For motive causes are given, which pertain intrinsically to the matter, and render the dispensation legitimate and fitting in itself, for example, poverty alleged so that someone may be freed from a vow of giving 1000 gold pieces. Impulsive causes are also given, which, taken from extrinsic circumstances, dispose the Superior toward the act of dispensing, for example, nobility alleged so that someone may more easily obtain a dispensation.

But go to the point: Falsity and reticence then only render a dispensation invalid if they regard motive causes, because the consent of the Superior depends on truth, which in these alone is sought and required (I, n. 185).

These things are rightly said if the matter concerns a dispensation given. But if someone is committed to giving it, and he discovers that falsity is present in the impulsive causes, he ought to recur again to the one delegating, so that he may licitly use the faculties. Lehmkuhl, I, n. 265.

3. That the dispensation be accepted. The reason: ordinarily the Superior intends to make a grace only to one consenting. These things Sanchez, Wernz (apud Linz. Quart. Schrift, 1911, p. 127), and this opinion is more common and more conformable to the decrees of the Holy See. Therefore, if a dispensation is sought for one not knowing or unwilling, it is necessary that his consent be added (I, 186, 10.).

238. From these things you will gather: 1. A dispensation granted from a true cause to some wicked man whom the one dispensing judged upright is valid, although it would have been the case that he would not have dispensed if he had known his wickedness. The reason is, because uprightness is not held as a motive cause, but merely as impulsive; unless the opposite is positively clear.

2. A dispensation is valid if, among several false causes, one true cause is alleged which suffices for dispensing. Likewise, in doubt whether a cause obreptitiously alleged was motive or impulsive, true or false, sufficient or insufficient: because after the fact one must stand for the value of the act.

3. A dispensation is valid if a cause, false at the time of petition, has become true at the time of concession; but not vice versa (cf. n. 2052). Hence it is valid, for example, if in the rescript of the one dispensing an error has crept in from the carelessness of an amanuensis; because it supervenes upon a concession already made. Cf. Pyrrh. Corrad., Praxis dispens. Apost., l. 7, c. 6, n. 24. If the matter concerns a grace to be made, the causes ought to be true at the time when the commissary fulminates the dispensation.

4. A petition does not become subreptitious for this reason, that before a Superior of higher Order the denial on the part of the Superior of inferior grade is kept silent.

239. II. For valid dispensation, on the part of the one conceding, it is required that he could and willed to dispense. The reason is clear of itself.

It is required 1. THAT HE COULD, according to the things set forth n. 230 ff. Wherefore it must be noted that a subaltern Superior cannot validly dispense in the law of a Superior without a just cause; because he is not presumed to have received the power of dispensing rashly and inequitably. It is otherwise, however, if a Superior wills to dispense in his own law or in the law of an inferior; because the law itself depends entirely on his will. It must be noted besides that the faculty of dispensing has not been taken away from a subaltern Superior by the fact that his Superior denied dispensation to the one seeking it. Except if his express will as regards this is clear.

Hence: 1. The Supreme Pontiff dispenses validly, but a Bishop invalidly, without a just cause, in the common law of the Church, for example, in fasting, abstinence, etc. Therefore St. Thomas rightly teaches (Quodl. 4, 13, c. fin.) that the Pope can dispense that a priest consecrate the Body of Christ without sacred vestments.

2. In the law of God, for example, in vows and oaths, a dispensation made without cause is always invalid (cf. n. 135, 1.). But if a cause is indeed present, yet insufficient, the dispensation will be valid when some commutation has been added (III, 254; H. Ap., V, 40).

3. A dispensation is valid if a subaltern Superior dispenses even in bad faith, judging that a cause does not underlie, which nevertheless in reality exists. On the contrary, it is invalid if he thinks that a cause underlies, which in reality does not subsist, or certainly does not suffice; because the value of the dispensation does not depend on knowledge, but on the existence of the cause, so that the good or bad faith of the one dispensing makes nothing to the matter. Thus St. Alphonsus with Palaus, against Busenbaum and others (I, 181; III, 251; H. Ap., II, 53).

It is required 2. THAT HE WILLED, and signified his will in some way, as is commonly taught. Whence a dispensation presumed concerning the future is not valid, for example, if he knew, he would dispense; because a future will, or one which would be, is not absolutely a will, and therefore does not suffice for dispensation from law, as being strictly to be interpreted, although it suffices for license, as being broadly to be interpreted. Moreover, in matters of lesser moment, one can sometimes proceed more easily by way of epikeia.

Nevertheless, a tacit dispensation is valid, namely from a just presumption of the present will of the Superior. Thus, for example, a Superior who sees a subject act against the law and does not correct him when he could easily do so, is judged to dispense; because in these circumstances, if he does not will to dispense, he is held to speak. But it is otherwise if he cannot correct without inconvenience (I, 187; H. Ap., II, 49).

Note. 1. A dispensation mentally conceded to an absent person is not valid, unless the dispensed person has been made more certain that the one conceding, at such an hour, for example, after he had sought from the Superior the faculty of dispensing, fulminated the dispensation. This mode of acting is full of dangers: whence ordinarily illicit (Gennari, Quest. de mor., q. 262).

2. A dispensation extorted by fear is valid, whenever a just cause of dispensing exists: provided it is not clear that the Superior dispensed without the mind of dispensing; for fear does not take away the voluntary. Nor is it illicit to obtain a necessary dispensation through fear, provided fear is justly struck, for example, by threatening recourse to a Superior if the inferior denies dispensation (I, 184; H. Ap., II, 54).

Do not, however, extend the things here set forth to absolution from censures, which, if it has been given under the influence of fear unjustly struck, is invalid (n. 1287).

240. III. For licit dispensation, both in the one conceding and in the one obtaining, a just cause is required. The reason for the former is, because otherwise the Superior commits acceptance of persons, and gives occasion for complaints, while one is exempted from law without cause, but others are pressed by the same (I, 178). The reason for the latter is, because otherwise the subject asks for an illicit thing, and is guilty of that sin to which he induces the Superior. Cf. Lehmkuhl, Cas. consc., n. 118.

Things to be noted. 1. A Superior can sometimes, from a just cause, concede that which is sought without a sufficient cause. Thus, for example, an undisciplined religious who seeks without cause a relaxation of his simple vows can be dispensed by the Superior on account of the common good, and is in reality released from the vows.

2. The sin of a primary Superior who dispenses without a just cause in his own law, with scandal and notable damage of others excluded, does not exceed venial, because acceptance of persons is not of itself grave fault (I, 178).

But a Superior of inferior grade, if he dispenses in the law of a Superior without cause, except if smallness of matter is present, sins mortally. The reason is usurpation of a power not conceded to him, and especially disturbance of order, from the fact that the subject uses an invalid dispensation (cf. n. 239). St. Alph., I, 180.

3. A just cause of dispensing is that which is proportioned to the gravity of the law from which dispensation is given. Nor, however, is a cause so grave required that it already of itself exempts from the law. It is enough if it is such that the one to be dispensed can be exempted from the common obligation without acceptance of persons. For some causes of themselves excuse from the precept, say of fasting, of the Divine Office, etc.; and these do not need dispensation, if they are certainly or at least probably just (cf. n. 173). But others suffice for dispensation, yet need it. CAUSES of this kind, indeed to be weighed by prudent judgment, are generally either necessity, for example, scandal to be avoided; or piety, for example, copious alms in aid of the Church, as practice bears for matrimonial dispensations; or finally utility, whether common or private. Indeed, a sufficient cause can be the dignity of the one asking, because it pertains to the good of the Church to have eminent persons grateful; or even the dignity of the Superior, that he may show himself benign. This also must be noted, that if several causes are present, of which none suffices separately, all can suffice together (I, 195).

241. Questions. IT IS ASKED 1. Whether, when a just cause stands, the Superior is held to dispense?

Resp. Distinguish. 1. If the cause is only sufficient so that dispensation is licit, but not owed, the Superior can concede it and deny it, or concede it to one and deny it to another; because just as dispensation is expedient for the good of the subject, so also the observance of law is expedient for the common good.

2. If the cause is such that it renders dispensation owed or necessary, the Superior is held to dispense. Otherwise he would sin, gravely or lightly according to the matter (I, 179; H. Ap., II, 52).

And here it must be noted that dispensation is owed either from the disposition of right, which, when such a cause exists, decrees that it must be granted; or from the necessity of the common good, for example, for preventing scandal; or from justice, for example, for avoiding grave danger of soul; or finally from charity, when someone much needs dispensation, and this can be conceded without detriment to discipline.

IT IS ASKED 2. Whether it is lawful for a subject to seek, and for a Superior to concede, dispensation from a doubtful cause?

Resp. 1. It is lawful TO SEEK, and once dispensation has been obtained, the subject can be secure, if he has set forth the cause in good faith; because it belongs to the Superior to judge concerning the sufficiency of the cause (I, 186). But what if he obtained it illicitly? See n. 244.

2. It is lawful TO CONCEDE, in doubt whether the cause is sufficient; because the power of dispensing, unless it is of mere commission, is to be interpreted broadly; and, in doubt, the one dispensing is not obliged to an examination concerning the full sufficiency of the cause. But it is otherwise in doubt whether some cause is present. Yet in each doubt, the dispensation made is presumed valid, until the truth appears to the contrary (I, 178, 192; cf. III, 251; ed. G., I, p. 534).

Note. Since the doubt here concerns the existence of the cause of dispensation, the conclusion concerning the validity of the dispensation had to be different from before, n. 234, II, b, where the doubt concerns the cases themselves, whether namely they need dispensation.

242. I. INTERPRETATION, in the matter of dispensation, is made according to the following rules:

1. THE POWER OF DISPENSING, even delegated, since it is favorable to the public good, is to be interpreted BROADLY (cf. n. 253, 2.). Except if it has been conceded to someone by way of commission for a certain case; because then it falls back into the dispensation itself, and must be interpreted in the same way as that (I, 187).

He who has received the faculty of dispensing as a missionary can use it for the whole time of the missions, even on the journey; he who has obtained it as a confessor can exercise it even outside Confession, but only toward those over whom he possesses jurisdiction of the internal forum (Noldin, I, n. 166). Some add that the confessor can do this also in favor of travelers.

2. THE DISPENSATION ITSELF, since it is odious and a wound of the law, is to be taken STRICTLY. Whence if it is doubted whether a dispensation extends to these or those circumstances, it is judged not to extend. Except, "unless the dispensation is owed, or is from the motion proper of the prince, or is inserted in the Body of Law, or finally unless it is conceded to a community, for the common good." For in these cases it is held for a favor and must be taken broadly (I, 194). See the very useful case in Lehmkuhl, Cas. consc., I, n. 120.

A dispensation is said to be given motu proprio when it is conceded with no preceding petition, or at least independently of it, if any perhaps preceded. Now indeed: 1. If no petition at all preceded, a dispensation conceded motu proprio is to be interpreted in such a way that it is held valid, even if in the rescript of the Superior some true circumstance, and otherwise necessarily to be expressed, is kept silent.

2. If some petition preceded, it is controverted whether the clause motu proprio has the aforesaid efficacy (cf. Salmant., tr. 18, c. I, n. 73-80).

243. II. As regards the USE of dispensation, it must be noted that this use is sometimes defined by a determined place, and sometimes is circumscribed by no limits. For just as there are given local laws and personal laws, so there are given also local dispensations and personal dispensations.

1. If a dispensation has been given for some determined place, for example, if some diocese has been dispensed from a law which obliges Christians within Lent to abstain from eggs and milk foods, all who are staying in that diocese can use the dispensation, whether they are inhabitants, travelers, or wanderers; but no one outside the territory of the diocese. The reason is, because the dispensation was conceded from a special necessity of the diocese, and therefore as it were adheres to the diocese.

2. If someone personally has been dispensed in a universal law, either by the legislator himself or by his delegate, he can use the dispensation everywhere. Thus, for example, one dispensed by his Bishop in the law of abstinence can eat meat even outside his own diocese. The reason is, because the Bishop dispensed in the name of universal authority, and because the dispensation conceded is judged to have been conceded on account of a personal motive, which clings to the bones (cf. n. 1247).

244. IT IS ASKED. Whether he sins who uses a dispensation indeed VALID, but ILLICITLY obtained?

Resp. Probably he does not sin; because, although he acted fraudulently, for example, by mendaciously setting forth impulsive causes, or by striking unjust fear, nevertheless since the dispensation is valid on account of a motive cause, as is supposed, he himself is now no longer under the law (I, 178; H. Ap., II, 46).

245. The cessation of dispensation can happen in three ways: 1. through cessation of the cause; 2. through revocation by the one dispensing; 3. through renunciation by the one dispensed.

I. A dispensation, or a commission of dispensing, regularly ceases when the MOTIVE cause ceases TOTALLY and CERTAINLY. Thus, for example, the dispensation from not fasting, conceded to you at the beginning of Lent on account of illness, expires when you have fully recovered. But it endures when only the impulsive cause ceases, because this was not the reason of the dispensation; likewise, if the motive cause ceases only partially, because in the remaining part there still remains a sufficient reason of dispensation; likewise, if the motive cause ceases doubtfully, because in doubt possession stands for the dispensation (I, 196; H. Ap., II, 66).

We have said: REGULARLY; for, even when the motive cause has ceased totally and certainly, the dispensation does not therefore cease: 1. if the dispensation has already obtained its effect, for example, if the one dispensed for obtaining a benefice has already obtained it; 2. if some onerous commutation has been added to the dispensation, for example, payment of money; 3. if the dispensation has been given absolutely, that is, without that tacit condition "if the cause endures," namely when it is conceded from a cause which of itself is perpetual, or is judged perpetual, for example, on account of scarcity of priests, on account of honesty of morals, on account of poverty of parents, etc.: for once the obligation of law has been removed through such a dispensation, this obligation, according to a sufficiently probable opinion, does not return unless it is imposed again by the Superior (I, 195; Salmant., de Leg., c. 5, n. 87).

This also must be noted, that a dispensation given ABSOLUTELY is not exhausted by one act, unless it has been conceded for a special case. Thus one dispensed from a vow of chastity for contracting marriage can, when his spouse has died, pass to second nuptials; provided the dispensation was not given for that case alone, for example, for taking a virgin deflowered by him (I, 196; Lehmkuhl, I, n. 269).

246. II. A dispensation ceases through REVOCATION by the one dispensing, notified to the one dispensed (cf. 233, 1.). Yet in this case a distinction must be made: 1. If revocation is made by a Superior in his own law, it is valid, even if without

cause; because obligation and de-obligation depend on the will of the legislator. Yet he who thus revokes sins, but lightly, because he acts inordinately. 2. If revocation is made by a secondary Superior or by a delegate, when a just cause of revoking is lacking, it is not only illicit, but also invalid; because the faculty of revoking is not in his arbitrary power (I, 197; H. Ap., II, 67).

But whether a dispensation ceases by the death of the one conceding? Resp. It depends on the terms of the concession. If it has been conceded absolutely, or with the clause until it is revoked, or at the judgment of the Apostolic See or of the Bishop, IT DOES NOT CEASE. But otherwise, if it has the clause until it shall have pleased us, or at our judgment; provided, however, that the matter is still untouched, say if the confessor has not yet begun to hear the confession of the one dispensed (cf. n. 233).

247. III. A dispensation ceases through RENUNCIATION of the one dispensed, provided the renunciation has been accepted by the Superior. The reason for this is, because, although a subject can yield his own right, if the renunciation does not redound to the damage of another, nevertheless only the Superior, in his own law, can bind again the will which he had rightly and validly released from the law.

Thus, for example, if Peter, having obtained a dispensation for marrying a blood-relative, married a stranger, he can, when his spouse has died, marry the first woman; provided the Superior has not revoked the dispensation. Likewise, he who obtained a dispensation from reciting the Divine Office, from observing the fast, can use the dispensation, even if meanwhile he has observed the law of the Office and fast (I, 198).

248. What is to be done, you will ask, in doubt WHETHER THE CASE NEEDS DISPENSATION?

Resp. 1. If the doubt is OF RIGHT, that is, if it is doubted whether the case is comprehended in the law, whether the doubt is negative or positive, a dispensation is not required, because this is the same as doubting concerning the law itself, whether it has been imposed for that matter. "Therefore the subject can use his liberty. Nevertheless it is more advisable then to approach the prelate who may declare or dispense; since in such a doubt even an inferior prelate can well dispense, without concession of the legislator" (cf. n. 55). See St. Alph., I, 192; ed. G., I, p. 172; cf. Salmant., tr. XI, c. 5, n. 45, whose doctrine he reports.

2. If the doubt is OF FACT, that is, if you positively doubt whether there is present a cause excusing from law, for example, for exercising servile work on Sunday; or even whether the cause which you have is sufficient for excusing you, dispensation is of itself necessary; because, in each case, the law possesses antecedently to your liberty, and therefore it is truer that you are held to the law.¹ Yet it would be otherwise if it were truly and uniquely probable that the cause is sufficient, or grave enough, to exempt you; or if another principle were added, for example, the natural and certain right of preserving health, etc., in the case in which it is feared lest observance of the law is going to harm gravely. Recall the things said n. 223, 241, q. 2. Cf. St. Alph., III, 1036.

Note what the Holy Doctor writes, III, n. 1049 at the end; ed. G., II, p. 439: "If someone does not have a cause absolutely sufficient for excusing him from fasting, and some probable and just reason appears to him, by which he fasts only twice or thrice in the week, he is not to be urged to fast, even if that cause does not altogether suffice, but he is to be left in his good faith, lest perhaps afterwards he culpably omit all fasts."

If the matter concerns dispensation over impediments of matrimony, see n. 2046.

St. Alphonsus, de Privil.; ed. G., I, p. 187; Suarez, de Leg., l. 8, c. 1 and 22; Salmant., tr. 18.

249. DEFINITION. Privilege is defined: A private law conceding some special benefit. It is called law, not indeed imposed upon the privileged person, in regard to whom it is a grace, but upon the community, which is held not to impede the use of the privilege. Whence it is of itself a stable right, and if it is limited to a few acts, or to a brief time, this is beside the nature of privilege. It is said: private, because privileges are regularly communicated with private persons; conceding a special privilege, because it is either against or beyond right.

DIVISION. Privilege is distinguished in many ways:

1. By reason of matter, there is had: a) a privilege against right, or beyond right, according as through it derogation is made from some law, or not. Thus, for example, exemption from the jurisdiction of the Ordinary is a privilege against right; the power of dispensing is beyond right. There is had b) a privilege either favorable, which confers a convenience upon the privileged person and brings inconvenience to no one, for example, the privilege of hearing Mass in time of interdict; or odious, which confers convenience on one and prejudice on another, for example, exemption from taxes, which burdens others (cf. n. 253, 2.).

2. By reason of the subject to whom it is conceded, privilege is real or personal. That is called real which is directly conceded to some thing, office, or condition distinct from the person: for example, to some altar, so that a plenary indulgence, applicable to the dead, may be obtained by the one celebrating upon it; likewise to a Bishop as such, or to his see or office, or to some community. Personal is that which is immediately given to a person by reason of himself, as the privilege of absolving from reserved cases conceded to some confessor.

3. By reason of cause, privilege is gracious or remuneratory, according as it is conceded without any respect to merits of the privileged person or of others, for example, parents, or on account of them. Again, it is conventional or pure, according as it is obtained with some pact intervening, or without this intervening.

4. By reason of form, privilege is of the living voice or written. A privilege of the living voice is that which is conceded orally, although, for obtaining faith in the external forum, it is consigned to letters and fortified by authentic testimony. A written privilege is that which is obtained through authentic writing. It is of diverse authority, according as it is enclosed in the Body of Law, or inserted in the Body of common right, as, for example, the privileges of Churches and clerics; or given outside the Body of Law, through a special rescript (Gennari, Quest. de droit can., q. 452).

5. By reason of duration, privilege is perpetual or temporal, according as it is conceded of itself without limit, or with limit, for example, for seven years, as long as I shall live, etc. (cf. n. 233).

There are some privileges which are conceded first and of themselves, without respect to others to whom the same privilege perhaps has already been given; and there are others which are conceded after the likeness, that is, according to the mode in which they have already been conceded to another. If these last are given equally principally, they are not changed, however much the privileges after whose likeness they were being conceded are increased or decreased; if they are given accessorily, indirectly, they take upon themselves the changes of the privileges first conceded.

With these things premised, we shall say a few things: 1. concerning the acquisition, 2. concerning the use, 3. concerning the interpretation, 4. concerning the cessation of privilege.

250. Privilege is acquired either directly, through the concession of a Superior or through legitimate custom; or indirectly, through communication.

1. DIRECTLY. It belongs to legislative power, and to that alone, to concede privileges: both because the legislator alone can exempt from laws, and because others are to be obliged not to impede the privileged person in the use of the grace. A privilege against right can be conceded by a legislator only to subjects, because it imports dispensation; whence, against common right, the Pontiff alone is able to grant privileges. But privileges beyond right can be conceded even to non-subjects, because such a concession is after the likeness of a donation (Bened. XIV, de Syn., l. 7, c. 9, n. 3).

"In order that a privilege derogate from common right, a DEROGATORY CLAUSE is not required; for the prince is presumed already to know the common laws. Nevertheless, exception is made: 1. if the privilege could not obtain its effect without this express derogation; 2. if in the law from which derogation is made there was appended the clause: notwithstanding any privilege whatever; this is understood provided that in the privilege there is not present the clause: from certain knowledge, or from fullness of power; 3. if the privilege is against some custom, or municipal or local law: for these are not derogated unless special mention is made of them" (de Privil., n. 2).

2. INDIRECTLY. Privilege is acquired through communication, when a Superior extends a privilege conceded to one also to another; thus, for example, among Mendicant Orders there is made a communication of privileges (ibid., n. 9).

There is given a twofold COMMUNICATION, namely in common or ordinary form, and in special or extraordinary form. Through communication in common form only those privileges are customarily conceded which are of easy concession, according to the rule of right: "In a general concession there do not come those things which one would not plausibly be about to concede in species." But through communication in special form all and singular privileges are conceded, even unusual ones and those which are of rare and difficult concession.

The signs from which this special form is recognized are had in certain clauses which, even from most ancient time, are customarily employed in Apostolic concessions; such as: from proper motion, from certain knowledge, from fullness of power, in like manner, equally and principally, etc. (ibid., n. 5).

1° On the nature of those things which release from obligation. - 2° On the voluntary positing of causes releasing from obligation.

137. • Causes releasing from obligation are either exempting or impeding. The former are those which totally withdraw someone from the dominion of law, for example, if someone withdraws himself outside the place which the law affects. The latter are those which impede, or excuse, a subject remaining under the law from its fulfillment. But these impeding causes are reduced to ignorance and impotence.

Principles. - I. Exempting causes totally free one from the obligation of law; for no one can impose a precept upon a man not subject to himself. Moreover, where some exempting cause is present, he who was subject to the law ceases to be subject to the same law either by reason of the territory from which he is absent, or by reason of privilege. Therefore.

II. Invincible ignorance excuses from law in this sense alone, that its violation is not imputed unto formal fault, as is plain. - But vincible ignorance does not excuse from any fault, since it could, or can, be laid aside by serious diligence.¹

III. Physical impotence always excuses from observing law, as the very common axiom has it: "No one is held to the impossible." Moral impotence likewise excuses; because the legislator is not judged to urge obligation with an inconvenience which can be considered grave (n. 125. V.). Impotence exempts those not observing the law even from material fault.

Hence grave fear, excluding damage to society or religion, excuses from human law; because human law does not oblige with grave harm. It also sometimes excuses, although with greater difficulty, from a positive divine precept, for example, from the integrity of Confession; indeed even from an affirmative natural precept, for example, of keeping a deposit with danger of life, of which, however, there is then rather no case; for you did not will to oblige yourself to keep the deposit even with danger of life. Yet it never excuses from a negative natural precept, because the object of this is intrinsically evil. Nor should you say that it is licit to steal in extreme necessity; for then it ceases to be theft.¹

I said: grave fear excuses from human law, excluding damage to society or religion; for this rather than private damage must be avoided; moreover, in each of these cases there enters the natural precept of guarding against damage to society and religion. Thus a soldier keeping watch ought rather to die than, when the enemy is approaching, to be silent (n. 105. 2°). Hence also, if you are directly compelled in contempt or in injury of ecclesiastical power to communicate with one to be avoided, to work on a feast day, to eat forbidden foods on a fast day, you must refuse even with grave damage to yourself, unless by protesting you can avert the contempt. Thus, if an unbelieving or heretical father of a family should say to his Catholic children: "I will that you eat meats on Friday, and that in contempt of the Pope and the Church," the children would not sin if they replied: "Father, know that we eat meats because you refuse to set other foods before us; for in this case it is licit for us to eat them."

138. • Quaer. Is he who is impotent for the whole held to a part?

Resp. Affirmatively, when the matter of the law is divisible, and the end of the precept remains in the individual parts. It is established moreover from proposition 54 condemned by Innocent XI (p. xvii). Therefore it is otherwise if that part is so slight that it conduces in no way to the end of the precept, - or if it is uncertain whether there is power even as to that part of the precept, as, for example, in the sick as to the Breviary, and in the weak and in convalescents as to fasting; for scarcely, or not even scarcely, can it be determined what they can do and how far. Hence, lest they undergo danger of anxiety or notable detriment to health, the benign Mother Church is not to be supposed to will to oblige them even to a part.¹

Hence 1° He who cannot fast in Lent ought to abstain from meats, if he can. Likewise he who cannot fast on all days is held on the days on which he can without grave inconvenience.

2° If someone lacking a Breviary knows a few things from the Hours by memory, he is not held to recite them; otherwise if he holds in memory a notable part, for example, Vespers or Compline.

3° He who vowed a pious pilgrimage, and cannot complete the whole journey, is not held to begin it, because the end of the precept cannot be obtained.²

139. • Causes releasing from observing the law can be posited either directly or indirectly, namely according as the agent is moved either by the end of withdrawing himself from the obligation of the law, or by another cause, with the impediment to observing the law nevertheless foreseen.

Moreover causes of this kind can be either present, or proximate, or remote, according as the law urges at that very time at which the cause releasing from obligation is posited, or shortly after, or only after a notable interval of time.

Principles. - I. Unless a special prohibition stands in the way, it is always licit to posit EXEMPTING causes, even proximate and present ones, and these directly. We gave the reason at n. 137.

II. It is never licit directly to posit or not to remove IMPEDING causes, even if only remote. The reason is that, so long as someone is subject to the law, he cannot will to infringe it without such a will being a violation of the law itself. Therefore excommunicated persons sin who do not seek absolution precisely for this reason, that, once absolved, they may not be held to Paschal Communion, or those who with this intention go away into a place where they will not be able to communicate in Paschal time.

III. Indeed it will not be licit even indirectly to posit or not to remove proximate or present impeding causes (which in morals are equated), unless a proportionate necessity is present from elsewhere; otherwise every law would be eluded. Thus he sins who gives himself over to sleep or sets out on a journey at the time when Mass is to be heard, or a little before, - or who on a fast day without just cause assumes some labor by which he is rendered impotent for fasting, - or the excommunicated person who does not seek absolution so that he may be able to satisfy the precept of Paschal Communion, - or he who, Paschal time having begun, does not communicate before he goes away into a place where he will not be able to communicate. Tailors and shoemakers likewise sin who on the day before a feast day do not prepare necessary garments and shoes, if they can do this without grave inconvenience.

IV. But more probably it is licit, even without reason, indirectly to posit remote impeding causes. The reason is that the legislator is not judged to will to restrict liberty so much. For it would be too grave a burden if everyone, long before the obligation of the law, were bound to abandon all works incompatible with that obligation, and to await the time of obligation.

But when a cause is to be judged as impeding proximately, and when only remotely, can scarcely, or not even scarcely, be established by some general norm. And indeed that which precedes the time of fulfilling the precept by the space of several days is usually held to impede remotely; but there must always be kept before the eyes both the mind of the legislator and the gravity of the matter prescribed, and also the judgment of prudent men and the practice of the good. L. I, 152.

Deobliging causes are either exempting or impeding. The former are those which totally withdraw the subject from the dominion of the law, for example, if someone betakes himself outside the place which the law affects. But the latter are those which impede or excuse from its fulfillment a subject remaining under the law. Besides, both the former and the latter can be placed directly or indirectly, according as the agent is moved either by the end of withdrawing himself from the law, or by another cause; proximately or remotely, according as the law urges either shortly, or only after a notable interval of time.

I say, 1st. Exempting causes totally free from the obligation of the law; for no one can impose a precept upon a man not subject to himself. Moreover, where some exempting cause is present, he who was subject to the law ceases to be subject to that same law, either by reason of territory from which he is absent, or by reason of privilege. - Cf. St. Alphonsus, n. 156.

I say, 2nd. Physical impotence, although it does not exempt, always excuses from observing the law, as the very common axiom has it: No one is held to the impossible. Moral impotence likewise excuses, because the legislator is not judged to urge obligation with so great an inconvenience, according to the common interpretation of the Doctors; this is the reason why grave fear, apart from harm to society or religion, excuses from human law. - Cf. St. Alphonsus, n. 165; and Hom. Ap. n. 44.

Question 1. Is it always licit to place exempting causes, even directly and proximately?

Response. Affirmatively, and the reason is that law of itself does not make someone subject to itself, but rather is made for him who is already subject; and therefore, at least speaking of itself, it obliges no one to be or remain subject to itself, but rather obliges him who is and remains subject to observe it. Wherefore it is licit for someone to go outside the diocese to confess reserved sins. For any reservation lacks all force outside the territory of the one reserving, even if the penitent departed from it only for obtaining absolution (Can. 900, § 3). - Cf. St. Alphonsus, ibid. - Baller., note (a), p. 97.

Question 2. Must the same be said concerning the placing of impeding causes?

Response. It is certain that it is never licit to place them directly; and the reason is that so long as someone lies under a law, he cannot wish to infringe it without such a will being the violation of that very law. Indeed, it will not even be licit indirectly to place proximately impeding causes, unless a proportionate necessity is otherwise present. The reason is that a law proximately urging proximately binds the will, and constrains it to employ the necessary means lest the law itself be violated, and therefore to not throwing in impediments. But more probably it is licit, even without reason, to place remotely impeding causes; because the legislator is not judged to wish to restrict liberty to such a degree. For it would be too grave a burden if each person, long before the obligation of the law, were bound to leave behind all works unassociable with that obligation, and to await the time of the obligation. - Cf. Suarez, de Peccatis, disp. 3, sect. 4, n. 10.

But when a cause must be judged as impeding proximately, and when only remotely, can hardly, or not even hardly, be established by some general norm. And that cause is usually held to be remotely impeding which precedes the time of fulfilling the precept by the space of some days; but there must always be kept before the eyes both the mind of the legislator and the gravity of the thing commanded, and also the judgment of the prudent and the practice of the upright. Cf. Sanchez, In Decal. lib. 1, cap. 15, n. 4.

Question 3. Is he who is impotent as to the whole held to the part?

Response. Affirmatively, when the matter of the law is divisible, and the reason of the precept remains in the individual parts. Wherefore, just as he who cannot fast on a day of fasting and abstinence at the same time ought to abstain if he can, so he who has vowed a pious pilgrimage, and is not able to complete the whole journey, is not held to begin it. - Cf. St. Alphonsus, Hom. Ap. n. 45.

You Will Resolve, 1st. He sins who on a day of fasting, without a just cause, undertakes some labor by which he becomes unable to fast. The reason is that a law proximately urging demands that an obstacle not be placed without a just cause to its fulfillment. - St. Liguori, Hom. Ap. n. 20.

2nd. He does not sin against the precept of hearing Mass who begins a journey foreseeing that on the following Sunday he will not be able to hear Mass. Yet he is not excused who does this when the precept is at least morally already urging, namely either on the same feast day or one or another hour before it, unless some just cause intervenes.

3rd. Much more easily can it be permitted that a cause be placed indirectly if the question concerns one or another omission, say of Mass, than if it concerns a continual one. Therefore the force and rigor of the precept must be considered; for certain precepts more easily admit a benign interpretation and therefore need lesser causes for excusing; on the contrary others do so with more difficulty and cease to urge only on account of graver causes. "Thus, for example, since the obligation of justice is graver than that of fidelity or obedience, a graver cause is required for you to render yourself unable to pay the price of a thing bought than to fulfill a gratuitous promise; the obligation of bringing it about that you are not impeded, for example, from executing your office of schoolmaster, physician, or judge, is graver than if it concerns the omission of Mass alone or of fasting." Baller., Op. Mor. v. 1, n. 264. The necessity or utility of the impediment must be considered. The matter is evident: consider, for instance, the necessity and evident utility arising from some pleasure journey undertaken once or twice during the summer by those of our workers who for an entire week must labor many hours daily. Surely Mother Church will not rebuke them if so rarely they omit Mass. Or consider some poor little old woman who in some corner sells goods on Sunday to other poor persons who cannot make their small purchases quite conveniently except on that day. It must also be considered whether the precept is impeded from being fulfilled proximately or remotely. And hence a graver cause is required for someone licitly to place an impediment the more proximately the law urges. Finally it must be seen whether the impediment pertains of itself and intrinsically to the matter of the precept, or only accidentally: for example, the breviary for reciting the office, or good health with respect to the same. Sanchez, Moral. lib. 1, cap. 15, n. 4. All these things must be considered, and thus in diverse laws the judgment will be diverse. - Cf. Sanchez and Baller., l. c.