Ecclesiastical Law

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.

Noldin, Summa of Moral Theology, On the Principles of Moral…, Book Third. On Laws, Question Eighth. On the Ce…, Article Second. On Dispensation from Law.

n. 179.

179. Notion. 1. Dispensation is defined as the relaxation of a law in a particular case made by legitimate authority. Therefore through dispensation, while the obligation of the law remains as regards the rest, by the will of the superior its obligation is removed as regards certain particular persons.

a. Dispensation is an act of jurisdiction which is exercised by an act of the will; wherefore a superior cannot grant a dispensation unless knowingly and willingly. But a dispensation extorted by fear is valid, provided the superior had the will of dispensing, because fear does not take away the voluntary, nor does positive law declare a dispensation of this kind invalid.

b. It differs from permission, by which the law is not relaxed but rather fulfilled: for permission has place when the law prohibits some matter not absolutely, but only under a condition, namely that it not be done without the consent of the superior. Thus if a law prohibits a religious from leaving the house without the superior's permission, he who asks permission does not ask for the relaxation of the law, but observes the law. It differs from a declaration, by which it is judged that some particular case is to be excepted from the law. A declaration can be made by any private person without any power; thus a physician can declare that someone is excused from fasting, if he rightly judges that fasting can harm him on account of weakness. It differs from a privilege, which of itself is perpetual and is not always against the law; dispensation, on the contrary, of itself is granted for a time and always is against the law.

c. The distinction between dispensation and permission is especially perceived in this, that presumed dispensation is never valid, but presumed permission is valid. Suarez assigns this reason for the matter. Where something is prohibited from being done without permission, the action is not simply prohibited, but only prohibited from being done without the consent of the superior, which consent can also be presumed from common usage. But where dispensation is required, the action itself is prohibited and therefore evil; wherefore through an act of the will of the superior himself the prohibition and malice must be removed.²

Dispensation of itself obtains its effect at the moment at which it is granted to the petitioner; nevertheless, in order that he may licitly use the dispensation, it must be notified to him either by letters or through an intermediary, lest, presuming that a dispensation has been made, he expose himself to the danger of breaking the law if perhaps it had not been granted.

¹ Stiegler, Dispensation, Dispensationswesen und Dispensationsrecht im Kirchenrecht (Mainz. Kirchheim. 1901).

² Cf. De legibus l. 6. c. 13. n. 20.

n. 180.

180. Division. Of the many divisions of dispensation, only one must be noted, since others, e.g. due and not due, valid and invalid, are understood from the terms themselves, namely that by which it is divided into obreptitious, if in the petition something false is asserted, and into subreptitious, if something is kept silent which had to be manifested. But often these words are used indiscriminately.

No necessity exists in a petition of alleging a dispensation previously denied by the same superior or by another superior, predecessor or inferior. Whether the petition is subreptitious if a dispensation denied by the supreme pontiff is not alleged in a petition directed to the bishop is indeed disputed; but it must be denied, unless the supreme pontiff expressly restricts the faculty of the bishop in some case: for of itself delegated power is not restricted from the fact that the superior, from whatever cause, was unwilling to give a dispensation.¹

¹ Cf. Lehmkuhl, Casus consc. I. n. 125.

§ 1. On the Power of Dispensing.

n. 181.

181. Who can dispense. 1. A legislator by proper power can dispense in his own law and in the law of his predecessors: for just as the obligation of a law is induced through the will of the legislator, so through the same will it is also removed.

An inferior cannot dispense in the law of a superior unless he has received vicarious power from him. But the superior is judged to communicate this power only on this condition, that the dispensation be made for just causes.
The power of dispensing, since it is a favor, is to be interpreted broadly; but a dispensation, at least a particular one, since it is odious, is of strict interpretation; nevertheless, a dispensation granted to an entire community is sometimes judged favorable and therefore of broad interpretation.

He who has received the power of dispensing from fasting can also dispense from abstinence, because fasting accepted in the full sense comprehends both; but he who has been dispensed from fasting has not likewise been dispensed from abstinence, because this is not necessarily contained in that.

n. 182.

182. In what laws one can dispense. 1. The supreme pontiff can dispense: a. by proper power in all ecclesiastical laws, both general and particular, whether they were issued by a council or by another pontiff or by the apostles; b. by vicarious power in certain divine laws, namely in those in which the obligation of divine law depends upon the human will, as in vows, in oaths, in a ratified but non-consummated marriage, and in religious profession. But in other divine laws he can only interpret or declare the will of the supreme legislator.

A bishop by proper power can dispense in all laws and statutes of his diocese; by ordinary vicarious power also in certain universal laws of the Church, but only in a particular case, therefore neither with the whole community nor without limit in perpetuity; finally by delegated vicarious power in those matters for which he has received a special faculty from the supreme pontiff.

a. By ordinary power he can dispense in the following cases:

a. In doubts whether the matter needs dispensation: for in these he can either dispense as a precaution or declare that the law does not oblige; for properly a dispensation is not required, since the use of a probable opinion is licit.

b. In frequently occurring cases, as in fasting, abstinence, canonical hours, feasts, and indeed also in vows and non-reserved oaths: for it would be too hard for the faithful if in such frequent cases they always had to recur to the holy see; custom confirms this power.

c. In cases of urgent necessity, when there is danger in delay, as in impediments of marriage, in irregularities, in reserved vows: for the common good requires this.

d. If in the law it is said indefinitely that dispensation can be given: for thus the faculty of dispensing is implicitly handed over.

e. If in the law the faculty of dispensing is expressly conceded, as in the proclamation of banns and in occult irregularities (except homicide).¹

b. Besides these ordinary faculties bishops generally have other extraordinary faculties delegated from the special concession of the supreme pontiff for three, for five, for ten, or for more years.

Bishops can delegate their ordinary faculties to others; the same seems to be said concerning extraordinary faculties, unless this power has been taken away from them in the indults, both because they are delegates of the supreme pontiff, and because they are delegated for a universality of causes.

A parish priest by ordinary vicarious power can dispense in the lighter and frequently occurring universal laws of the Church, as in fasting, in abstinence, and in works prohibited on a feast day, even if recourse to the bishop would be easy, but only in particular cases. Nevertheless, since this power of dispensing is derived from custom, for determining its extent in individual regions attention must be given to the usage of the diocese.

Parish priests can also delegate this power of theirs, as ordinary, to others; therefore, e.g., a chaplain can be delegated to grant a dispensation from abstinence, from servile works, etc.

Regular prelates by ordinary vicarious power can dispense with their subjects in some universal laws of the Church: of reciting the office, of fasting, of abstinence, of servile works, of prohibited books, and of irregularities, but only in particular cases,² because they have quasi-episcopal power over their subjects.

a. Those are called regular prelates who exercise jurisdiction in an exempt order; of this kind are the superiors of an entire order, of individual provinces, and of individual houses (local superiors): priors, guardians, rectors.

b. Because they have quasi-episcopal power over their subjects, they can generally exercise over them that power which bishops exercise over their own diocesans by ordinary right (not likewise by force of special faculties). Generally: because in some cases they have a broader power, in others a stricter power, than bishops, as will be indicated where there is discussion of individual precepts.

Confessors cannot dispense unless they have received delegated power for this. But where a sufficient cause exists, they can doctrinally declare that penitents in their peculiar circumstances are not bound to observe the law.

If the delegated faculty of dispensing is conceded to a confessor to be chosen by the petitioner, nothing prevents the petitioner from being able to change and, once one has already been chosen, to choose another, who may either confirm or correct the disposition of the first. For this is judged to be the intention of the sacred Penitentiary granting the faculty, because power granted for the forum of conscience follows the nature of this forum, in which the penitent can freely approach another confessor.³

¹ Cf. Council of Trent, sess. 24. c. 1. 6.

² S. C. C. 17 December 1725.

³ Cf. Schmalzgrueber, Titl. XVI. n. 243. Sanchez, De matrimonio l. 8. disp. 27. n. 40.

n. 183.

183. Whom bishops can dispense. Since dispensation is an act of jurisdiction, it is clear that no one can be dispensed by them except a subject. But specifically these things must be noted:

A bishop can dispense: a. with his own subjects, even if they are staying outside the diocese; b. with those who have quasi-domicile in the diocese; c. with vagi, so long as they are staying in the diocese; d. with pilgrims, who in a case of necessity cannot recur to their own bishop, and this from the tacit consent of the proper bishop of the pilgrims.

a. Pilgrims of themselves cannot be dispensed in common laws, in vows, or in oaths by the bishop of the place in which they are staying, because they are not his subjects, over whom he therefore cannot exercise jurisdiction; therefore, if they are validly dispensed, this can be done only from delegation of the proper bishop of the pilgrims. But he is not judged to delegate the power of dispensing as he delegates the power of absolving, except in the case in which recourse cannot be had to the proper bishop, because the presence of the penitent is required for absolving, but an absent person can also be dispensed. Wherefore in a case of necessity, namely where they need a dispensation but cannot recur to their own bishop, he is judged tacitly to consent.

b. Parish priests also can exercise the power of dispensing with pilgrims, i.e. with the faithful who are not their own parishioners, in those things in which they themselves enjoy the right of dispensing, as in abstinence and fasting.

Bishops cannot properly dispense with exempt religious, since they are not their subjects; nevertheless, with the consent of superiors, religious can use episcopal dispensations, e.g. in abstinence or fasting.
A dispensation can be granted to an absent person, and indeed also to one who is ignorant of it and, absolutely speaking, even to one unwilling; but ordinarily for a valid dispensation the consent or acceptance of him with whom dispensation is made is required: for grace and benefit is not granted except to one willing, which especially holds concerning matrimonial dispensations. Anyone is judged to accept a dispensation asked for, unless the contrary will is established.

a. A confessor having the power of dispensing can also dispense with pilgrims, whether he has the power from the supreme pontiff or from the bishop: for neither is judged to delegate power restricted to certain persons, but power which extends to all whom the delegators themselves can dispense.

b. A faculty of dispensing which is granted to someone as confessor is valid only for those over whom he has jurisdiction; and a power which is granted to someone as missionary is valid for the whole time during which he has been destined for giving missions, even if he is not actually occupied in giving a mission.

n. 184.

184. Whether one having the power of dispensing with others can dispense with himself. He who has a general power (not for a particular case), whether ordinary or delegated, of dispensing with others can also dispense with himself, and this directly: for dispensation is not an act of contentious jurisdiction nor of voluntary jurisdiction by which an obligation is enjoined, but of voluntary jurisdiction by which a grace is granted; but for acts of this jurisdiction a distinct person is not required.

He who has a general faculty of dispensing, by the consensus of all, can also dispense with himself. Yet not all explain this dispensation in the same manner. Some judge that the superior can dispense with himself only indirectly, and this in a twofold manner. For either he dispenses with the whole community; but if the whole community is released from the law, equity postulates that the head of it also be released from it. Or the superior grants to someone the faculty of dispensing, and then he himself asks dispensation from him. They are led to embracing this opinion by this argument: dispensation is an act of jurisdiction; but no one can exercise jurisdiction upon himself, because the exercise of jurisdiction requires a subject and therefore a distinct person. Nevertheless others more rightly contend that a superior can dispense with himself directly, because for conferring a grace a distinct person is not required.

§ 2. On the Causes of Dispensation.

n. 185.

185. Necessity of a cause. If a dispensation is sought, the causes of the dispensation must be alleged. These causes must be proportionate to the gravity of the law; but which causes are sufficient must be left to the prudent judgment of the one dispensing. Nevertheless they must not be so grave that of themselves they excuse from the law: for in this case there would be no need of dispensation.

It can happen that a law, on account of some impeding cause, either certainly or probably no longer obliges; not only in the first case, but also in this second case, there is no need of dispensation, since the obligation of the law ceases without dispensation. But if impeding causes stand in the way of the law which indeed of themselves do not excuse from the obligation of the law, but which nevertheless certainly or at least probably suffice for the superior to be able to dispense, there is need of dispensation.

Whether a superior, when a just cause exists, ought to dispense.

Dispensation, when a just cause exists, is sometimes due either from precept or from justice.

The cases in which dispensation is due are usually enumerated as these: a. if common law or a particular precept requires that dispensation be given on account of that cause; b. if it is necessary for the common good, in which case (legal) justice requires that dispensation be given; thus on account of the necessity of the Church, dispensation from interstices can be due; c. if it is necessary for the spiritual good of the petitioner, for which cause dispensation in vows can be due; d. if it is necessary for averting grave damage or public scandal; thus dispensation from the proclamations of marriage can be due.

Once dispensation has been denied, even if this was done unjustly, it is not lawful to act against the law. But if it has been denied by an inferior, recourse to the superior is clearly open; and if the superior also has denied it, the law must be observed, unless the difficulty of observation is so great that it excuses of itself from observing the law.

n. 186.

186. Distinction of causes. 1. The causes of dispensation are some internal, which arise from the difficulty of observing the law itself, as if persons are dispensed from fasting on account of weakness;¹ others external, which arise from circumstances of the person to be dispensed or of the person dispensing, or from the common good.

Some laws, as e.g. the law of integrity in confession, are so constituted that by their nature they have great difficulty; this difficulty in a particular case does not excuse from the observance of the law. Other laws, as e.g. the law of fasting, likewise by their nature have some difficulty, but not so great. But if in a particular case this difficulty is great, it is joined accidentally with the observance of the law, even if it is internal, and therefore it excuses from the observance of the law (n. 139).

a. External causes of dispensing are the dignity of the petitioner or of the superior, common or private utility, the payment of money for the utility of the Church. And certainly dispensation is customarily granted to reward the merit of some person, so that a person may be bound to the Church, to provide for the necessity or utility of a person, to show liberality or benignity on the part of the legislator, etc.

b. But if sometimes a dispensation is said to be granted without cause, this must be understood without an internal cause, or without another external cause besides the payment of money. Namely, where another external cause of dispensing seems to be lacking, for the dispensation an alms is imposed to be spent on a pious work, by which the good of the Church is promoted. In this case the utility of the Church is the cause of dispensing.

The causes of dispensation are some motive (final), which of themselves suffice for granting a dispensation, others impulsive, which of themselves do not suffice for granting a dispensation, but nevertheless help the motive causes, so that the dispensation may be granted more easily. Therefore if the former did not exist, the superior would not have dispensed; but if the latter did not exist, he nevertheless would have dispensed.

¹ Cf. St. Alphonsus n. 195.

n. 187.

187. Principles. 1. He who dispenses by proper power can validly dispense even without a cause, because the obligation of the law depends altogether upon his will; but he who dispenses by vicarious power cannot validly dispense without a cause: for the superior is not judged to concede to an inferior the faculty of dispensing without a just cause (n. 181).

For dispensing licitly, a cause certainly or at least probably sufficient is always required. He who dispenses by proper power without cause commits the vice of acceptance of persons, and therefore does not sin gravely unless perhaps by reason of scandal or damage to others; but he who dispenses by vicarious power without cause can sin gravely in grave matter, because he abuses the power conceded to him. In doubt whether the cause suffices, not only the legislator himself but also the legislator's inferior grants the dispensation both validly and licitly; otherwise too great a burden would be imposed on the superior.

If an inferior dispensing in the law of a superior through error thinks that the cause is sufficient, the dispensation is valid: for in doubtful cases concerning the sufficiency of a cause the power of dispensing validly has been conceded, even if the cause in reality is not sufficient, lest scruples concerning the value of dispensations be able to arise. But if through error he thinks that a cause is present when in reality none is present, the dispensation is invalid.

In order that a dispensation be valid, it is required that at least one motive cause be true, and indeed at the time at which the dispensation is granted; for the dispensation is granted on this condition: if the prayers rest upon truth, because the superior is not judged to wish to dispense without cause, even if of himself he could do so. Nevertheless, the exaggeration of a cause otherwise true does not render the dispensation invalid.

a. It suffices that the cause be true at the time at which the dispensation is granted, even if it is not true at the time at which it is sought: for the prayers rest upon truth when the dispensation is granted. Whether it must also be true at the time at which the action is placed, for the licit placing of which the dispensation was obtained, depends both upon the law itself and upon the intention of the one dispensing, as will be clear from what is to be said below.

b. A dispensation is invalid if the cause is indeed true at the time at which it is sought, but not at the time at which the dispensation is granted, because the prayers do not rest upon truth. It makes no difference whether falsehood has crept into the petition in good or bad faith.

c. Likewise a dispensation is invalid if the cause is not true at the time at which it is sought and granted, but is true at the time at which the dispensation is communicated: for what does not subsist from the beginning is not strengthened by the passage of time.

Not only he who dispenses without cause, but also he who seeks dispensation without cause, acts illicitly, because he induces the one dispensing to an illicit thing; nevertheless he who uses a valid dispensation illicitly sought does not sin: for he who has been validly dispensed is not bound to observe the law. In doubt whether the cause suffices, it is lawful to seek dispensation; otherwise too great a burden would be imposed on subjects, since doubts of this kind, which cannot be solved, frequently occur.

§ 3. On the Cessation of Dispensation.

Vol. I, Bk. III, Chapter IX. The Cessation of Law · Vol. I, Bk. III, Ch. IX, Section I. Custom · Vol. I, Bk. III, Ch. IX, Section II. A Law Become Useless · Vol. I, Bk. III, Ch. IX, Section III. Dispensations · Vol. I, Bk. III, Ch. X, Section III. Ecclesiastical Law · Vol. I, Bk. III, Ch. X, Section VI. Privileges

A dispensation already granted can cease: a. by revocation of the one dispensing; b. by cessation of the cause; c. by renunciation of the one dispensed; d. by the death of the one granting.

n. 188.

188. By revocation of the one dispensing. a. He who has dispensed by proper power can validly revoke the dispensation even without a just cause: for the obligation which he removed by dispensing he can always again validly impose.

A dispensation by which, by a single act, an incapacity or impediment, e.g. an irregularity or an impediment of marriage, is wholly removed, if once granted absolutely, cannot be revoked.

He who has dispensed by vicarious power can revoke the dispensation from a just cause; without a just cause the revocation is invalid: for he who dispenses by vicarious power, just as he can grant dispensation only according to the will of the superior, so also can revoke dispensation only according to the will of the same; but revocation without a just cause is judged to be against his will.

A dispensation in a vow once absolutely granted can validly be revoked by no superior.

b. For licitly revoking a dispensation a just cause is always required; nevertheless a revocation made without a just cause does not exceed venial fault.

n. 189.

189. By cessation of the cause. A twofold case must be distinguished:

If the motive cause ceases totally before the concession of the dispensation, the dispensation is not valid.
If the motive cause ceases totally after the concession but before at least the complete use of the dispensation, a distinction must be made. If the superior intends to dispense absolutely, the dispensation does not cease; but if the superior intends to dispense under the condition: if the cause endures, the dispensation ceases. To discern whether the superior dispensed absolutely or under condition, authors hand down this rule.¹

Let Bertha be an example in this question, who seeks dispensation from a vow of chastity for contracting marriage from a twofold cause: that conceived offspring may be legitimized, and that Bertha's aged mother may be more easily supported. Now imagine that either the mother or the offspring, or both, have died before the marriage has been contracted. - A cleric who has received dispensation from the title of ordination on account of poverty remains dispensed, even if before ordination a rich inheritance comes to him. - Gaius has been dispensed on account of illness from the recitation of the office and from the Lenten fast; now imagine that the illness has entirely ceased during Lent.

It is required, however, that the cause certainly have ceased; therefore he who has been dispensed from abstinence or from the divine office on account of infirmity can use the dispensation until he has perfectly recovered.

a. If a dispensation has a successive effect, as in the law of abstinence, in the law of reciting the divine office, when the cause ceases the dispensation ceases, since the superior cannot be supposed to wish to dispense without cause.

b. If a dispensation has an effect wholly at once, as in irregularities, in impediments of marriage, when the cause ceases the dispensation does not cease, because the law once removed through dispensation cannot revive except through the will of the legislator; but no indication of this will can be assigned.

a. There are some who except this case: if someone obtained dispensation from a vow of chastity so that he could enter marriage for legitimizing offspring, and the offspring dies before the marriage; for if the legitimation of offspring is the sole cause of the dispensation, marriage cannot licitly be entered unless dependently upon that cause existing at the time of the marriage.² But others judge that the dispensation is valid even in this case: for even if the offspring dies after the dispensation has been made, nevertheless the impediment or obligation of the vow once removed does not revive.³

b. If the cause and the use of the dispensation cease at the same time, e.g. if someone was dispensed from a vow of chastity so that he could enter marriage for legitimizing offspring, and a little after the marriage has been entered the other party dies, he can enter another marriage, unless the dispensation was given for one marriage only: for if the dispensation was made without limit, through it the obligation of the vow is simply removed, and with that removed nothing stands in the way of a further marriage.

¹ Cf. Suarez, De leg. l. 6. c. 20. n. 18.

² Lehmkuhl II. n. 173.

³ Laymann l. 1. tr. 4. c. 22. n. 15.

n. 190.

190. By renunciation of the one dispensed. a. Anyone can renounce a dispensation made, unless the renunciation falls to the damage of others; but in order that the dispensation granted may cease through renunciation, it must become known to the superior and be accepted by him: for the obligation removed through the will of the superior cannot arise anew except through the will of the same superior. b. Non-use of a dispensation of itself is not a sign of renunciation: for non-use can exist together with the will of using the dispensation afterward; therefore he who has been dispensed from fasting or from the divine office can use the dispensation, even if after the dispensation has already been obtained he has for some time recited the office or fasted.

Nor is a contrary act of itself a sign of renunciation; thus if someone dispensed for entering marriage with Bertha marries Sempronia, by this very fact he does not renounce the accepted dispensation.

n. 191.

191. By the death of the one dispensing a dispensation then alone ceases if it was granted with this or a similar clause: at our discretion or until it shall please us, because by the death of the one granting every good pleasure and discretion of his ceases; but it does not cease if it was given absolutely or with this or a similar clause: until it is revoked, because it is a grace made; but a grace made does not expire by the death of the one granting, even if it has not yet been mandated for execution, unless something else is established from the terms of the concession.

Concerning the formula at our good pleasure, however, it must be noted that it is often employed as equivalent to the formula until revocation, and in this sense the S. C. of Bishops and Regulars, 19 June 1866, decided in a particular case that faculties given under this formula did not cease by the death of the bishop granting them.¹

Whether it is lawful to use a dispensation outside the diocese. It is not lawful to use a dispensation which has been granted in a common law by a general indult for the whole diocese: for this, equally as a common precept, is territorial. But a particular dispensation which has been granted to an individual person from a special cause can be used everywhere on earth, because it inheres in the person to whom it has been granted and accompanies him.

¹ Cf. Ballerini-Palmieri V. n. 355.

Noldin, Summa of Moral Theology, On the Principles of Moral…, Book Third. On Laws, Question Eighth. On the Ce…, Article Third. On Privilege.

n. 192.

192. Definition. 1. Privilege considered objectively is a private law conceding a special favor against or beyond common law.

a. Privilege has the character of law, because it is a norm according to which someone, from the concession of a superior, can operate permanently against or beyond common law, and especially because the whole community is bound to acknowledge the privilege and not to impede the privileged person from using it.

b. It is called a private law because it is not conceded to the whole community, but either to one person or to a part of the community which is bound by the law itself.

Privilege considered subjectively is a special and permanent faculty conceded by a superior in favor, against or beyond common law.

a. It is called permanent because it is not given for a passing act or for a short time, as dispensation or faculty generally accepted is, but because by its nature it has a certain stability, even if it is not always perpetual. It is said to be conceded by a superior because a private person cannot concede privileges, but can only give permissions, and not against the law.

b. Privilege differs from dispensation: a. dispensation is only against the law; privilege can also be beyond the law; b. dispensation is generally conceded for a passing act, but privilege is a stable and permanent faculty; c. dispensation can be conceded either to an entire community or to an individual person, whether physical or moral; privilege is conceded only to an individual person, whether physical or moral. Therefore a dispensation granted to an individual person generally does not differ from a privilege against the law.

n. 193.

193. Division. Privileges are divided: 1. By reason of the matter: a. into privileges against the law, if through them some law is derogated, as is exemption from paying taxes; and beyond the law, if through them no law is derogated, as is the power of dispensing; b. into favorable privilege, which brings advantage to the privileged person but inconvenience to no one, as the privilege of saying Mass in a private oratory; and odious privilege, which brings advantage to one but inconvenience to another, as exemption from paying taxes, from the jurisdiction of the ordinary.

By reason of the subject to whom it is conceded, into personal and real privilege. A personal privilege is conferred directly and immediately on some person by reason of himself, on account of knowledge, dignity, etc. This follows the person and expires with him, as the power of absolving from censures. A real privilege is directly and immediately conferred not on the person but on a thing, from which it redounds to the person. This privilege adheres to the thing, passes with it to the person to whom the thing pertains, and also expires with the thing.

By the name of thing is understood not only a corporeal thing, as a church or monastery, but also an incorporeal thing, as a moral person (college, community), office, dignity, state, a quality separable from the person, as a doctorate, etc. To this class belong, e.g., indulgences annexed to a church, altar, cross, rosary, etc.; besides these, privileges conceded to various communities (religious orders, confraternities) or diverse states (clerics, bishops, etc.).

By reason of the cause on account of which it is conferred, into gracious privilege, which is conceded from mere grace; remunerative privilege, which is conceded in consideration of some merit or service performed by the privileged person or by others, e.g. parents; and onerous privilege, which is conceded through the intervention of some pact for obtaining services.
By reason of the mode in which it is conceded, into a privilege given motu proprio, which is conceded without petition, and one given at instance, to conceding which the superior is induced by the prayers of the supplicant.
By reason of the end on account of which it is conceded, into common privilege, which is conceded to a community first and of itself for the good of the community, so that its use falls to the good of the community, as the privilege of the canon, which has been conceded to clerics, or of exemption, which has been conceded to religious orders; and into private privilege, which is conceded to a private person or even to a community, but for the good of individuals.

n. 194.

194. On the concession of privilege. 1. Only the legislator, or his successor, or the superior of both, can concede a privilege, whether it is a privilege against the law or beyond the law. For if it is against the law, only the legislator can exempt a subject from the law; and if it is beyond the law, only the legislator can impose on the community the obligation of not impeding the privileged person in the use of the privilege.

Privilege can be conceded either directly by a legitimate superior, or indirectly through communication of privileges, namely when a privilege conceded to one is also extended to another; thus communication of privileges exists among certain religious orders.
A privilege against the law can be conceded only to a subject, because this concession is an act of jurisdiction, which can be exercised only upon subjects; but a privilege beyond the law can also be conceded to others who are not subjects, provided the matter is subject to the legislator conferring the privilege, because this concession has the character of a donation, of which even one who is not a subject is capable.
In order that a privilege be valid, a just cause for conceding it is not required, because it depends merely upon the will of the legislator whether he wishes someone to be exempt from the common law; but in order that a privilege be licit, a just cause is required. For a privilege against the law conceded without a just cause injures legal and distributive justice; and a privilege beyond the law conceded without a just cause is an act of prodigality, which is illicit.

n. 195.

195. On the use of privilege. 1. Everyone is bound to use a common privilege, namely one which has been conceded principally for the common good, nor can he renounce it, because it is not lawful to do anything against the common good; of this kind are the common privileges of clerics, bishops, regulars, etc.

A private privilege which has been conceded to a private person for private good of itself binds no one to use it, just as no one is bound to use his own right, because a privilege is given as a favor, not as a burden; nevertheless, accidentally the privileged person is bound to use it if non-use would fall to the damage of another, as if someone were unwilling to use the faculty of absolving from reserved cases.

If a sick priest, who cannot leave the house to celebrate, has received the privilege of establishing a private oratory, he is not bound to establish it so that he can celebrate on Sundays and feast days: if he has erected the oratory, in strictness he is not bound to celebrate on days of precept, but is excused from hearing and celebrating Mass.¹

A private privilege which has been given to a community for the good of individuals cannot be renounced by individuals, but the community alone can renounce it; but individuals of themselves are not bound to use it, although accidentally they can be bound to this, both if a legitimate superior enjoins the use of the privilege on individuals, and by reason of conformity with others.

¹ Cf. Lehmkuhl, Casus consc. I. n. 128 ss.

n. 196.

196. On the interpretation of privilege. 1. A favorable privilege is to be interpreted broadly; yet it is never lawful to interpret it so broadly that the interpretation becomes unjust or, on account of similarity of reason, is extended to persons or causes in no way comprehended in the privilege.

An odious privilege, insofar as it is odious, is to be interpreted strictly; nevertheless the restriction must not be so great that the privilege is rendered useless.

Yet an odious privilege is to be interpreted broadly: a. if it was conceded by the superior motu proprio; b. if it was given in favor of divine worship; c. if it was given to some order or religious community. The reason for this last is that such a privilege is judged to be remunerative for services performed and therefore most favorable.

In the interpretation of any privilege whatever the propriety of the words must always be preserved, even if they are to be taken now according to a broader, now according to a stricter signification: for privileges do not operate more than the words signify.

n. 197.

197. On the cessation of privilege. Privilege, equally as dispensation, ceases when the cause on account of which it was given ceases. Besides:

A privilege ceases by the fact itself: a. by the destruction of the person to whom a personal privilege has been conceded, or by the destruction of the thing to which a real privilege has been attached; but it is required that the thing be wholly destroyed: for if a church or altar or confraternity is transferred to another place, the privilege also is transferred. b. By the lapse of time, if the privilege was given for a time, and by the cessation of the condition, if the privilege had been given under a condition.
A privilege which is opposed to the right of others ceases by non-use or contrary use, and indeed by the space of time which suffices for prescription. For those things which have been established by law concerning the loss of right by means of prescription are valid also concerning privileges which are a burden to others. But other privileges, which confer favor only on the privileged person without redounding to the burden of others, as the privilege of celebrating before dawn, do not cease even through non-use of the longest time.

Privilege is lost also through abuse. He is said to abuse a privilege who takes from it an occasion of sinning. Yet by abuse a privilege is not lost of itself and by the fact itself, but generally only insofar as a just cause is provided to the one granting for revoking it.

By free and express renunciation on the part of the privileged person.

a. In order that renunciation be valid, it is required that he be able to renounce the privilege. But anyone can renounce a privilege which has been conceded only in his favor; but a particular person cannot renounce a privilege which has been conceded principally in favor of the Church or of some community. Therefore a cleric cannot renounce the privilege of the canon, not even for himself.

b. Renunciation is either tacit or express. The former is made by non-use or contrary use. In order that express renunciation be valid, it must be known to the one granting and approved by him: for since only the legislator can impose a law, the privileged person otherwise would not again be affected by the obligation of the law.

By express or tacit revocation of the one granting, or of his successor, or of his superior.

a. Express revocation is made through revocatory clauses inserted in a law, in which manner the revocation of many privileges was made by the Council of Trent.

Derogatory clauses are of two kinds, general: notwithstanding privileges, and special: notwithstanding any privileges whatever, notwithstanding privileges even worthy of special mention, and the like. By a general clause these are not revoked: a. remunerative privileges, such as the privileges of religious are judged to be; b. privileges conceded with a clause that they not be revoked unless special mention of them is made; c. privileges conceded by a general council. But by a special clause even these are judged revoked.

b. Tacit revocation is made through a new law, by which all contrary privileges contained in common law are revoked, even without a revocatory clause.

In order that a privilege be revoked by a new law, the legislator must be presumed to know the privilege; now he is judged to know privileges which are contained in common law; but he is judged to be ignorant of special privileges which are not contained in common law. Therefore privileges contained in common law are revoked through a new law, but special privileges are not revoked unless special mention of them is made.

Privilege does not cease by the death of the one granting: for by the general rule a grace made is not extinguished by the death of the one granting. Therefore by the death of the one granting a privilege ceases in a twofold case: a. if it was granted for the time of the life of the one granting or with the clause at our good pleasure; b. if it contains a grace to be made and the matter is still intact.

Noldin, Summa of Moral Theology, On the Principles of Moral…, Book Third. On Laws, Question Tenth. On Custom.

n. 200.

200. Definition. The word custom is taken in two ways: a. causally, for acts frequently repeated by a community; b. formally, for the right which, with the consent of the legislator acceding, arises from those acts. Hence custom formally can be defined as a certain right or law introduced by long-standing use of a community, with the approval of him who has care of that community.

The distinction which intervenes between (derogatory) custom and prescription of right, with which custom is sometimes confused, must be carefully noted: for some principles govern custom, others govern prescription; wherefore the same conditions are not required in both. Especially, however: a. good faith is required for prescription; it is not required for custom; b. for prescription the consent of him against whom prescription is made is not required, but for custom the consent of the legislator is required; c. for prescription a time, sometimes longer, sometimes shorter, determined by law is required; for introducing custom, time is indeed ordinarily required, but to be determined by the judgment of prudent men, which nevertheless is not extended beyond ten years.

n. 201.

201. Division. 1. By reason of extension, custom is divided into universal or most general, which is in force in the whole Church; into general (in itself it is particular), which is in force in some whole province; into special, which is in force in smaller societies, but nevertheless perfect ones, i.e. societies capable of laws; and into most special, which is observed by private persons and imperfect societies, namely those which are not capable of law. It is clear that this last does not have the character of law, but after the manner of a privilege is only a faculty of doing or omitting something.¹

By reason of relation to law, custom is divided into custom against law, which removes an existing law either altogether or at least in part; custom beyond law, which introduces a new law; custom according to law, which confirms or interprets an existing law by use itself.

a. From this division it is clear that the effect of custom is threefold: a. of interpreting law; b. of introducing a new law; c. of abrogating an existing law.

b. Only a twofold custom must be treated here: a. derogatory custom or custom against law, and b. obligatory custom or custom beyond law.

¹ Cf. Wernz I. n. 187.

Noldin, Summa of Moral Theology, On the Principles of Moral…, Book Third. On Laws, Question Tenth. On Custom., Article First. On Derogatory Custom.

n. 202.

202. Its derogatory force. 1. That ecclesiastical custom, concerning which alone there is question here, has the force of abrogating law is established from canon law, which expressly attributes this efficacy to custom.¹ And indeed the force of custom and of law is the same; but a later law can abrogate an earlier one; therefore custom also can do this, provided it is clothed with the due conditions.

Custom cannot abrogate natural law, because this is immutable, nor positive divine law, because the force of custom is derived from human authority, namely from the consent of the human legislator; but human authority can do nothing against divine law. Rather, custom can abrogate only ecclesiastical law.

Although custom does not have the force of abrogating divine law, it can nevertheless interpret it, i.e. indicate how the law, according to the mind of the legislator, is to be understood and observed. Yet this custom, interpreter of divine law, must be governed by the infallible judgment of the Church, which alone is the authentic interpreter of the institutions and commands of Christ.

There is no ecclesiastical law which cannot be abrogated by contrary custom; for the texts of law proving custom are altogether universal.

Therefore legitimate custom can abrogate even:

a. A law expressly prohibiting contrary custom.

Indeed while the same circumstances remain on account of which the custom was prohibited, this custom cannot obtain force, since it would then be unreasonable; but once these circumstances have changed, nothing prevents the contrary custom from receiving the force of law, because it can be reasonable and can be approved through the consent of the legislator.²

b. An invalidating law: for an invalidating law can be abrogated by another law; therefore also by custom, which is of the same authority. Therefore even the invalidating impediments of marriage of human right can be abrogated by legitimate contrary custom.

c. Some existing custom.

Therefore universal custom can abrogate universal custom, and particular custom can abrogate particular custom; but a particular custom can derogate in part from universal custom, namely in that place in which the particular custom has prevailed.

¹ C. Quum tanto (11) fin. De consuetud. (I. 4), whose final words are these: "although the authority of even long-standing custom is not worthless, nevertheless it will not be valid to such an extent that it ought to generate prejudice even against positive law, unless it has been reasonable and legitimately prescribed."

² The doctrine of a few theologians, that against the disciplinary decrees of the Council of Trent no custom is admitted, cannot be demonstrated by sufficient arguments. Cf. Biederlack, Die Gewohnheiten gegen die Disciplinardekrete des Trienter Konzils (Zeitschrift f. kath. Theol. VI (1882) S. 438 ff. Wernz I. n. 194.

n. 203.

203. Conditions which are required in order that custom abrogate law:

The consent of the legislator; but legal consent suffices.

a. For law cannot be introduced except by legitimate authority, which indeed cannot be the will of the people exercising the custom, but only the will of the legislator himself.

From this it is clear that the consent of the legislator is the true efficient cause of custom which has legitimate value.

b. In order that custom obtain the force of law, personal consent is not required, but legal consent suffices: for nothing prevents the legislator from establishing by a universal law that custom endowed with due qualities have the force of law; but if the legislator has done this, custom receives the force of law without further consent; and this has been established by the law itself.¹

a. Consent can be personal, by which the superior himself approves the custom, or legal, by which the right or universal law approves it. Personal consent supposes knowledge of the custom; legal consent does not require it. Personal consent is express if the legislator gives permission of introducing the custom, and it is tacit if the legislator, conscious of the custom, does not resist it, although he could easily resist. Wherefore a custom which the legislator merely tolerates with prudent silence cannot obtain the force of law through personal consent.

b. Legal consent is customarily defined as a previous approbation made through a universal will expressed in law, of approving any custom whatsoever clothed with due conditions.

c. If personal consent is had for custom, even only tacit consent, legitimate time for introducing the custom is not required, but the obligation of the law immediately ceases.

On the part of the matter, that the custom be reasonable.

In order that it be reasonable, it is not required that it be begun without sin: for those who introduce a custom contrary to law generally sin in the beginning. Nor is it required that it be positively reasonable, i.e. that it be commended by a special reason or that it be better and more perfect than the contrary law, but it suffices that it be negatively reasonable, i.e. that for no reason (neither by natural right nor by divine right) it be reproved, nor offer license and occasion of sinning, nor contain corruption of morals, and therefore in some way contribute to the common good.

On the part of the community: a. that the custom be introduced by a community on which a law can be imposed, such as a kingdom, province, city, diocese (but not a parish, family, or private person), a religious order, and probably also a province of a religious order; b. that it be exercised by the greater part of the community: for custom is introduced by the community from the consent of the prince; but only the greater part morally represents the community.
On the part of the acts: a. that they be free, i.e. that they proceed neither from fear nor from error or ignorance: for without the consent of the people a law cannot be established through custom; but this consent is lacking if the acts are not free; b. prescribed for the legitimate time: for the law itself requires a certain duration of custom in order that it have legal value: unless it has been legitimately prescribed; c. made with the intention of de-obliging oneself from the law. For this it is not required that the community know the law at least in the beginning and nevertheless not observe it, but it suffices that with the opinion that the law does not exist, it in good faith does not observe it. Wherefore that which the faithful omit from lack of consideration or levity can never obtain the force of legitimate custom.

a. How much time is required for introducing custom is nowhere found defined. In order that obligatory custom obtain the force of law, ten years is required and suffices; but in order that derogatory custom have value, forty years are required, although several of the more recent theologians think that ten years suffices.²

b. Supposing a positive doubt concerning custom, so that on the one side it is truly probable that all things are had which are required for introducing legitimate custom, and in like manner on the other side it is probable that something of those things is lacking which are required for legitimate custom, the following distinction must be made: a. in doubt concerning custom beyond law, the custom does not yet oblige: for it is doubtful whether the custom has obtained the force of law; but a doubtful law does not oblige; b. in doubt concerning custom against law, the law no longer obliges: for by the fact that the contrary custom probably de-obliges from the law, the law itself has become doubtful; but a doubtful law does not oblige.

¹ C. Quum tanto (11) fin. De consuetud. (I. 4).

² Cf. Benedict XIV, De synodo l. 13. c. 5. n. 4. Wernz I. n. 190. IV.

Noldin, Summa of Moral Theology, On the Principles of Moral…, Book Third. On Laws, Question Tenth. On Custom., Article Second. On Obligatory Custom.

n. 204.

204. Its force of obliging. 1. That custom has the force of introducing law is established by the fact that from the law cited above, reasonable and legitimately prescribed custom has the force of law.

A law introduced through custom is called unwritten law, so that it may be distinguished from written law, which is constituted and promulgated by the express ordinance of the legislator.

Custom can impose any law whatever: preceptive, invalidating, indeed even merely penal; for custom can effect what law itself effects; but law can impose any obligation whatever.

It is established that the law obliging all clerics constituted in sacred orders to the recitation of the office, and some diriment impediments of marriage, as the impediment of disparity of cult, were introduced by custom.

n. 205.

205. Required conditions. In order that obligatory custom receive the force of law, the same conditions are required which are required for abrogating law through custom:

a. the consent of the legislator, at least legal consent, without which obligation cannot be imposed;

b. reasonable matter, namely matter which contributes to the common good and therefore can be prescribed by the legislator in an enacted law;

c. a community capable of having a law imposed upon it;

d. acts freely exercised by the community, i.e. neither from fear nor from error or ignorance, but with knowledge that no law exists concerning this matter;

e. acts exercised with the intention of obliging oneself; wherefore those things which are exercised by the faithful from mere devotion, as the triple Angelic Salutation, cannot obtain the force of obligatory custom.

Nevertheless even acts of mere devotion can acquire the force of law through custom, provided the faithful, knowing that there is no obligation of it, have the intention of obliging themselves to that act. This intention must be gathered from the circumstances, e.g. if it is constantly observed even with some inconvenience, if transgressors are punished, if pious men commonly judge so.¹

f. acts legitimately prescribed.

Whether a new law removes contrary customs in force.

Clauses by which contrary customs are reprobated are customarily added to pontifical constitutions; but concerning these clauses it must be noted: a. A universal law removes a contrary universal custom, but it does not remove particular customs unless a clause is added which reprobates a contrary custom in force. b. This clause: notwithstanding any custom whatever removes all customs except immemorial customs,² but it does not impede the origin of a new contrary custom. c. The clause: notwithstanding any custom whatever, even immemorial, removes altogether all contrary customs, but neither does it impede the origin of a new contrary custom. d. The clause added to a law: with any contrary custom whatsoever excluded for the future indeed renders more difficult a custom contrary to the new law, but it does not altogether impede its origin: for this clause itself is a disciplinary law; but it belongs to the nature of a disciplinary law that it admit contrary custom.³

¹ St. Alphonsus l. 1. n. 107. IV.

² An immemorial custom is one of whose beginning there exists no memory. It is not said: one of whose beginning there exists no knowledge; therefore a custom can be immemorial even if its beginnings are quite well known from history, provided its existence transcends the memory of men now living (about one hundred years).

³ Cf. Aichner, Compendium iuris eccles. (Brixinae. Weger. 1900) p. 81 ss.

Vol. III, Book Eight. On Matrimony., Question Six. On Matrimoni…, Article Three. On the Causes of Dispensing.

n. 613.

613. Declarations. 1. In order that a dispensation be valid, a just cause of dispensing is required, not only where dispensation is granted by force of vicarious power by a bishop or another delegated judge, but even where it is granted by force of proper power by the supreme pontiff, because he does not wish to dispense illicitly without cause. Therefore in all dispensations the condition is understood: if the petitions rest on truth; and the dispensation is null if there is no motive cause of dispensing, except in impediments of lesser grade.²

The cause must be grave and proportionate, and so much the graver as the impediment from which dispensation is sought is graver. Hence it can happen that some cause suffices indeed for obtaining dispensation from a less grave and more easily dispensable impediment, but does not suffice for obtaining it in a graver and more difficultly dispensable impediment.³
Besides the division of causes of dispensing which is common to all dispensations, namely into motive or final causes and impulsive causes,⁴ in this place the following division is to be noted:

a. Into dishonoring causes and honorable causes. Dishonoring causes have their origin from the delict of the petitioners or consist in their defamation; honorable causes contain neither delict nor defamation. With regard to the concession of a dispensation, dishonoring causes are graver than honorable causes.

Dishonoring causes are, e.g., a. legitimation of offspring, which supposes illicit copula; b. suspected familiarity which cannot be impeded.

b. Into canonical and non-canonical causes. Those are called canonical which from the style of the Roman curia are expressly reported as admitted for matrimonial dispensations; all others are called non-canonical, which are not expressly reported among the causes admitted from the style of the Roman curia.

It is certain that even non-canonical causes are admitted in matrimonial dispensations; indeed sometimes dispensation is granted from non-canonical causes alone.

¹ Formulae apostolicae Datariae pro matrimonialibus dispensationibus (Rome: Typographia Augustiniana, 1901). Praxis apostolicarum dispensationum super impedimentis matrimonii (Rome: Typographia Augustiniana, 1902). These booklets are of the greatest moment in this matter, because from them one learns how supplicatory petitions are to be drawn up.

² Council of Trent, sess. 24, c. 5, De ref. matr. Cn. 1054.

³ Council of Trent, ibid.

⁴ Cf. De principiis, n. 185.

n. 614.

614. The Canonical Causes of Dispensing are the following sixteen in number:¹

"Narrowness of place, whether absolute or relative (by reason of the petitioner only), namely when in the place of origin or even of domicile the kinship of the woman is so propagated that she cannot find another of equal condition, whom she may marry, except one consanguineous or related by affinity; but to leave her fatherland would be hard for her."

This cause is chiefly considered in the betrothed woman. Place can be the place where the betrothed woman was born, or where she lives or has domicile or quasi-domicile. If the place of the betrothed man is the same, or if it is different but narrow in the same way, this can be indicated in the petition in this way: narrowness of place, where the petitioners were born, or narrowness of places, where the petitioners, etc.

Place here is not understood as a parish, but as a village or town, even if in it there are several parishes, provided it is distant from other places by at least one mile (1500 meters). Therefore if a suburb is a place distinct from the city and has its own name, narrowness of place can be alleged, provided it is distant from the city by about 1500 meters.²

A place is judged narrow if it contains no more than 300 hearths or 1500 inhabitants, acatholics being deducted, but not unbelievers and impious persons.

Equal condition must be taken broadly, not only concerning state and wealth, but also concerning age, education, character, religious disposition, etc.

A woman is said to find no spouse if here and now she has no apt occasion of marrying, even if she has sought no spouse, has previously rejected one or another, could have a man from another place, or one of equal condition wishes to marry her, namely lest matrimonial liberty be too greatly restricted.

"The over-adult age of the woman, namely if she has already passed the twenty-fourth year of age and hitherto has not found a man of equal condition whom she can marry. But this cause does not assist a widow who desires to fly to other nuptials."

If the woman is of still greater age, it helps to express this in the supplicatory petition, so that dispensation may be obtained more easily.

Several thought that, if a dispensation is ever granted because of the over-adult age of the betrothed woman, in the verification of the cause both things had to be proved for the validity of the dispensation: that the woman is over-adult and that up to that time she has not found a man of equal condition whom she could marry. But it is enough if it is established with certainty concerning over-adult age.³

"Deficiency or incompetence of dowry, namely if the woman does not actually have such a dowry that she can marry, in her own place where she is staying, an outsider of equal condition who is neither consanguineous nor related by affinity. This cause urges more if the woman is wholly without dowry and a consanguineous person or one related by affinity is prepared to marry her or even conveniently to dower her entirely."

The notion of dowry must be understood broadly concerning goods of fortune by which the burdens of matrimony can be sustained, not only concerning dowry strictly taken, namely where the dotal system is in force.

Actually, although afterward she is to have a dowry, whether from parents who now cannot or do not wish to give it and cannot be compelled to give it, or from a blood relative who has promised part of an inheritance.

"Lawsuits over succession of goods, whether already arisen, or grave and imminent danger of the same. If a woman is sustaining a grave lawsuit over succession of goods of great moment, and there is no other who would take a lawsuit of this sort upon himself and pursue it at his own expense except the one who desires to marry her, dispensation is customarily granted; for it is of interest to the republic that lawsuits be extinguished. Another cause closely approaches this, namely, a dowry entangled in lawsuits, when a woman is destitute of another man by whose help she is able to recover her goods. But a cause of this sort suffices only for more remote degrees."
"Poverty of a widow who is burdened with numerous offspring and a man promises to support her. But sometimes by the remedy of dispensation help is given to a widow for this cause alone, that she is younger and is placed in danger of incontinence."
"Good of peace, under which name come not only treaties between kingdoms and princes, but also the extinction of grave enmities, quarrels, and civil hatreds. This cause is brought forward either for extinguishing grave enmities which have arisen among the blood relatives or those related by affinity of the contracting parties and which would be entirely settled by the celebration of matrimony, or when grave enmities have flourished among the blood relatives and those related by affinity of the contracting parties, and, although peace has already been entered between them, nevertheless the celebration of the matrimony would greatly conduce to the strengthening of that peace."
"Excessive, suspected, dangerous familiarity, as also cohabitation under the same roof, which could not easily be impeded."

Since the reason of this cause is placed in avoiding scandal, it is required that this familiarity or cohabitation under the same roof has given origin to suspicion concerning base conduct between those about to marry.⁴

"Copula with a consanguineous person or one related by affinity or another person laboring under an impediment, held beforehand, and pregnancy and therefore legitimation of offspring, namely that provision may be made for the good of the offspring itself and the honor of the woman, who otherwise would remain unmarried."

If incestuous copula, which is alleged as a cause of dispensation, was had not from human frailty but from hope of obtaining dispensation more easily, this circumstance no longer has to be expressed in the supplication.

"Infamy of the woman arising from suspicion that she has been known by her consanguineous relative or one related by affinity as excessively familiar with the same, although the suspicion is false, namely when, unless matrimony is contracted, the woman would remain gravely defamed or unmarried, or would have to marry a man of unequal condition, or grave harms would arise."
"Revalidation of matrimony which was contracted in good faith and publicly, with the Tridentine form observed, because its dissolution can scarcely be done without public scandal and grave harm, especially of the woman. But if the spouses entered the nuptials in bad faith, they by no means merit the favor of dispensation, as the Council of Trent disposes (sess. 24, c. 5, De reform. matrim.)."

a. Where there is question of dispensation for convalidating matrimony, it must be indicated whether the petitioners were ignorant of the impediment, whether the ignorance was of fact or law, whether they contracted in the face of the Church, whether they had copula, and this in good or bad faith, whether, after being informed concerning the impediment, they continued copula.

b. If only one party contracted matrimony in bad faith, dispensation was always granted, even in former times; but today it is granted even if each party contracted matrimony in bad faith, especially if offspring has already been born or danger of civil matrimony is imminent.

"Danger of mixed matrimony or of matrimony before an acatholic minister."
"Danger of incestuous concubinage."
"Danger of civil matrimony. From what has been said there follows that the probable danger that those who seek dispensation, if it is not obtained, will celebrate matrimony only civilly, as they say, is a legitimate cause of dispensing. Likewise a civil matrimony already contracted which is to be convalidated."
"Removal of grave scandals."
"Cessation of public concubinage."
"Excellence of merits, when someone (whether of the betrothed or of their progenitors), either by fighting against enemies of the Catholic faith, or by liberality toward the Church, or by doctrine, virtue, or in another way, has deserved well of religion."

¹ They are listed in the instruction of S. C. de Prop. Fide, May 9, 1877.

² S. C. C., July 8, 1876.

³ S. Penitentiary, April 5, 1902.

⁴ Ballerini-Palmieri VI, n. 240.

n. 615.

615. Non-canonical causes must be added to canonical causes, but when the latter are lacking, dispensation is sometimes granted from non-canonical causes alone in more remote degrees. Causes of this sort are:

On the part of the female petitioner: a. if she has been deprived of either or each parent; b. if she has arisen from illegitimate birth; c. if she is held back by illness, deformity, or another defect; d. if she has already been deflowered by another.
On the part of the male petitioner: a. if he is held back by illness; b. if he is a widower burdened with offspring, for whom he seeks a good mother; c. if he is in need of the assistance of this woman, e.g., for carrying on domestic work.
On the part of the matrimony: a. the publicized proposal of contracting; b. the suitability of the matrimony; c. the good morals of the petitioners; d. the good of the parents, if father or mother needs assistance.

Slater, Manual of Moral Theology

Thomas Slater, S.J. — 22 passages

Vol. I, Bk. III, Chapter IX. The Cessation of Law

A LAW may cease to bind in various ways. It may be abrogated or altogether withdrawn by the legislator, or his successor, or his superior. For he who made the law can unmake it. Derogation is the annulling of some portion of the law, while the rest remains intact. The law may fall into desuetude from non-observance, or on account of a contrary custom being introduced. It may also cease to bind because it no longer attains the purpose for which it was made, and has become useless. It may cease to bind in particular cases because a dispensation has been obtained. Something must be said on custom, on a law becoming useless, and on dispensations, This will be done in the three following sections.

Vol. I, Bk. III, Ch. IX, Section I. Custom

A custom in the technical sense must be distinguished from a mere use. A use is a constant manner of acting but without binding force. Thus we take holy water on entering the church, and receive blessed ashes on Ash Wednesday, and palms on Palm Sunday, but there is no obligation of doing so, and no sin is committed if we neglect these pious practices; they are only uses. A custom has the force of law from which it only differs in its origin. It arises from the repeated acts of the community which it binds. However, inasmuch as in ecclesiastical matters at least, the community as such has no legislative authority, the binding force of ecclesiastical. customs is derived from the express, tacit, or legal consent of the legislative authority. Legal consent to all customs which have the requisite qualities is given in the last chapter of the Title on Custom in the Decretals, and Can. 27.

A custom is said to be according to the law if it confirms and interprets the law by long-continued usage.

It is beside the law if it introduces a new law in a matter for which no written law exists.

It 1s contrary to the law when the acts by which the custom was introduced were forbidden by law. There is nothing repugnant in the notion of a lawful custom being introduced by wrongful acts, for when the custom is formed the acts cease to be forbidden, because the contrary law has in fact ceased to exist.

In order that a custom may have the force of law it must be reasonable and it must fulfil certain other conditions.

A custom will be reasonable if it is not against the natural or divine law, against which no custom can prevail, nor furnishes the occasion nor is an incentive to sin, nor is pernicious and hurtful to the common good. Inasmuch as custom has the force of law, it cannot be introduced by individuals or by private families, for whom precepts may be given but laws cannot be made.

It must be introduced by the repeated acts of the greater portion of a community or corporate body which is capable of being the subject of law. How many acts are required to form a custom depends much on the matter, and must be left to the prudent judgement of experts.

The acts by which the custom is introduced must be voluntary, not the product of ignorance or mistake, and unless the tacit consent of the legislator is given before, they must continue for a long time—that is, forty years (Can. 27).

As custom depends on the will of the ecclesiastical superior, he may refuse to admit or he may abrogate a custom.

The clause ‘“ Notwithstanding any custom to the contrary,” which frequently occurs in pontifical legislation, merely annuls general customs to the contrary, not special ones nor immemorial customs, nor those of a hundred years’ duration. These require special mention in papal but not in episcopal legislation. The reason of the difference lies in the fact that the Pope may easily be unaware of local customs, and he does not annul what he does not know. But a Bishop is presumed to know the customs of his diocese, and if he makes a law which is against a custom he thereby abrogates the latter, Only a reasonable custom which is immemorial or of a hundred years’ duration can prevail against a law which contains a clause forbidding future customs to the contrary (Can. 27). If, however, a law reprobate contrary customs as abuses, they cannot be introduced as long as the circumstances remain the same. Such customs would be unreasonable, and could not have the consent of the legislator.

Vol. I, Bk. III, Ch. IX, Section II. A Law Become Useless

A law should further the common good; if it ceases to do this, it becomes useless, and ceases to be a law. A law then ceases to bind when it ceases to be useful for the object for which it was made. However, it not unfrequently happens that a law was designed to further several objects, and it may well be that, though it is useless for one purpose, it is of use for another. The law which requires banns to be published before marriage is designed to discover impediments if there be any, and also to secure the publicity of marriage. It may be absolutely certain that there are no impediments, but for all that the other object of the law remains to be secured, and prevents the law from being useless. The law remains in force as long as it serves its purpose to some extent, though it may not attain all the objects for which it was made.

A positive law ceases to be of obligation in a particular case if it becomes hurtful, or if it cannot be observed without serious inconvenience. But does a law cease to bind in a particular case when it becomes merely useless, when it fails in that particular case to attain any of the objects for which it was made¹ This question is disputed among theologians. The better and more common opinion is that the law does not then cease to bind. For the law is made for the community, and if it continues to promote the common good it retains its binding force for the community. Nor can individuals shake off the obligation of such a law on the ground that it is useless for them; they are bound to conform their actions to the rules which govern the community of which they are members. Besides, there is always danger of self-deception in such matters, and it would be a dangerous principle to admit that one who thinks that a law is useless as a guide for his own conduct need not obey the law. If, however, there be no danger of self-deception, and if it is quite certain that a law has ceased to be of any use in some special case, several theologians of weight admit the probability of the contrary opinion."

Canon 21 enacts that laws made to guard against a general danger continue to bind even though the danger may not exist in a particular case.

¹ Bucceroni, 1, n. 172.

Vol. I, Bk. III, Ch. IX, Section III. Dispensations

A dispensation is a relaxation of the law in a particular case for some special reason. The law still remains in force, but by a dispensation one who would otherwise be bound to conform to it is withdrawn from the operation of the law. When a law forbids something to be done without leave, as when a religious is forbidden to go out without the leave of his superior, the going out with leave is not against the law, but is in keeping with it. On the other hand, when one eats meat on a Friday, with a dispensation, the act is against the law, but the obligation of the law has been removed from the person dispensed. As jurisdiction is required to make a law, so ordinary or delegated jurisdiction is necessary for granting a dispensation. Ordinary jurisdiction is that which by law is annexed to an office; delegated jurisdiction is exercised by the commission of one who has ordinary jurisdiction (Can. 197). a good cause is always required in order that a dispensation may be lawfully asked for and granted. All should conform to the laws made for the common good, and the superior who without just cause exempts anyone from the duty of obeying a law is unfaithful to his office, and commits the sin of acceptance of persons. If such a superior uses only delegated authority to dispense, he acts not only unlawfully, but invalidly, because he received his authority to grant dispensations only for a good cause. He therefore exceeds the limits of his authority by attempting to dispense without good reason. Similarly, one who asks for a dispensation without good cause does wrong.

A good cause for granting a dispensation must not be altogether trivial, nor is it so grave that of itself it exempts from the obligation of obeying the law. Beyond saying this, it is difficult to be more precise. Much depends on the particular law in question, and on the circumstances of the case.

A legislator can dispense in his own laws, in those of his predecessors, and in those of his subordinates by his ordinary jurisdiction; he cannot dispense in the laws of his superior unless he has received delegated authority for the purpose.

(a) The Pope, then, can dispense in all ecclesiastical laws, even in those which have been made in a general council. He cannot dispense in the natural or divine law; but in vows, oaths, and in marriage which has not been consummated, the Pope can for good cause dispense in the name of God, or at least declare that in certain circumstances they have ceased to exist; for whether he then in the strict sense dispenses, or only declares the sense of the divine law, is a disputed point. In practice there is little difference between the two views.

(b) Bishops can dispense in episcopal laws, and even in those of a provincial or plenary council, unless such authority has been reserved. Although they have no authority over the common law of the Church per se, yet by custom and the presumed consent of the Pope, Bishops can in particular cases dispense from the common law in trivial and doubtful matters, in matters which are of frequent occurrence, as in abstinence, fasting, observance of days of obligation, in the divine Office, and even in other matters of greater moment which admit of no delay.¹

Bishops can dispense not only their own subjects, but strangers also, in such matters as fasting, abstinence, observance of days of obligation, vows, etc.²

(c) Regular prelates have quasi-episcopal authority over their own subjects, and can do for them what Bishops can do for their subjects. Moreover, many privileges have been granted by the Popes to regular Orders, by virtue of which they can dispense not only their own subjects but others also.

(d) Although parish priests per se cannot dispense either in general or in particular laws (Can. 83), yet the power is expressly granted to them to dispense in particular cases and for a good reason even outside their parishes particular individuals and families subject to them, and within their parishes strangers also, from the common law of observing feast days and also from the observance of fasting or abstinence or of both fasting and abstinence (Can. 1245). Those who have the cure of souls in places where there are no parish priests in the strict sense have the same authority from the necessity of the case, from custom, and often by implicit or explicit grant.³

¹ St Alphonsus, 1, n. 190.

² Can. 1245, 1313.

³ Concil. Westmon., d. 23, nn. 1, 3.

If there be a good and sufficient cause for granting a dispensation, the superior may ordinarily either grant it or refuse to do so, as he judges fit; but if serious public or private harm would follow from not granting a dispensation, charity may require that the favour should be granted. But even in that case, unless the inconvenience is so serious that it excuses from the obligation of the law, if a dispensation is refused, the law must be obeyed.

The power of granting dispensations in general but not for a particular case (Can. 85) is of wide interpretation, for it exists for the common good; a dispensation, however, is a wound inflicted on the law, for the law should be uniformly observed by all as far as possible, and so a dispensation is of strict interpretation, and when in doubt as to whether it extends to some particular case the law should be observed.

A dispensation granted for a country, province, or diocese, may be taken advantage of by all who are staying even for a time in the territory, but no one may use it outside the territory for which it is granted. The law for the time being does not bind within the territory dispensed, but it does bind outside. On the other hand, a personal dispensation, like a precept, follows the person, and may be used anywhere, unless specially restricted, as is the case with the dispensation to eat meat granted by the Bulla Cruciata, which cannot be used outside the limits named in the Bull.t

A dispensation ceases by being recalled by the legislator. One who has granted a dispensation by delegated authority may also for good reason recall his dispensation, and in that case the law begins to bind again. However, one who has been dispensed from a vow cannot again be bound by vow without his own free consent. The person dispensed may also renounce a dispensation granted in his favour, and, in the case of a dispensation granted from a vow, by renunciation of the dispensation the vow binds again. However, the obligation of a law can only be reimposed by the competent authority, so that the renunciation of a dispensation from a law must be accepted by the superior in order to be effective. A dispensation also ceases if the whole cause for granting it cease before the execution of the dispensation, or, if the cause is continuous, whenever it entirely ceases. And so if a dispensation from abstinence was granted on account of a weak state of health, the dispensation will cease and the law will again bind when the health has been completely established. If, however, a dispensation has been put in execution, or has been granted absolutely, it will not cease even though the cause no longer exists. And so a dispensation to marty, granted and already executed ad prolem legitimandam, will not cease though the child die before the marriage. * “ Intra limites tantum Hispanicae ditionis.” A.S.S. 35 p. 565.

Vol. I, Bk. III, Ch. X, Section III. Ecclesiastical Law

We saw above that the Catholic Church has received from her divine Founder full and independent authority to make laws, binding upon all her children in matters which pertain to religion and the salvation of souls. She has constantly used this power which Jesus Christ gave her. Various collections of Church law were made from an early period in her history, but those which are contained in the Corpus Juris are the most celebrated. The Corpus Juris is usually divided into two volumes. The first contains the Decretum of Gratian, a Benedictine monk, who composed his work about the middle of the twelfth century. It is a private collection, and so the documents of which it is composed have only the authority derived from their origin, unless custom or subsequent approbation has given special canons greater weight. The second volume, on the contrary, contains several official collections, made by the authority of the Holy Decretals of Gregory IX, the Sext, See. These are the and the Clementines. Any papal constitution contained in these collections has authority from the very fact of its insertion in the Corpus Juris, ‘The second volume also contains the Extravagants of John XXII, and the Common Extravagants, both of which are private collections, although inserted in the Corpus Juris.

The Corpus Juris contains the ancient law of the Catholic Church, which has been modified and accommodated to the times by more recent councils and constitutions of the Holy See. The Council of Trent especially made many changes demanded by the altered circumstances of the times, and the Popes have at different times issued a great number of constitutions and laws to meet the constantly changing wants of the Church. These constitutions are usually quoted by giving the Pope’s name and the initial words, together with the date of the document.

Early in the year 1904 Pius X ordered the common law of the Western Church to be codified. The work was finished and promulgated by Benedict XV on Whit Sunday, 1917. This new Codex Juris Canonici came into force on May 19, 1918. It has binding force throughout the Western Church, Besides the common law which binds the whole Church, each country, province, and diocese has its own special laws and customs. The four Councils of Westminster contain the special provincial laws which bind the Catholics of England and Wales.

Vol. I, Bk. III, Ch. X, Section VI. Privileges

A privilege is, as it were, a private law which grants a special favour to some person.

It is a law, because although as a general rule no one is bound to use a privilege, since what is granted as a favour should not become a burden and a restriction to liberty, yet it lays on all the obligation of respecting the privilege, and of doing nothing contrary to it. Moreover, those privileges which are granted not to individuals, but to bodies of men like clerics and religious, cannot be dispensed with or used at the good pleasure of members of the privileged bodies.

Individuals cannot renounce the privileges of their order, but they are bound to act in accordance with them.

A privilege is against the law if it derogates from the law in favour of the privileged person; it is beside the law if there be no law from which it derogates.

The lawgiver to whom the law is subject can alone grant a privilege against the law, and within the territory subject to his jurisdiction. Within that territory all, whether subjects or strangers, may enjoy the privilege; no one may enjoy it outside the territory of the grantor, unless it be in the nature of a personal dispensation from the law. A privilege which is against no law may be granted to anyone.

A personal privilege is directly and immediately granted to a physical or moral person; a real privilege is granted directly and immediately to a place, office, dignity, or thing, and mediately to persons with respect to the place, office, dignity, or thing.

Privileges are to be interpreted according to the terms in which they are granted. And thus if a privilege is granted by the Pope to a confessor by which he may absolve from "cases reserved to the Holy See, he cannot thereby absolve from specially reserved cases, much less from the cases most specially reserved to the Holy See, and which can only be absolved by faculties specially delegated by the Holy See.

Privileges granted to corporate bodies, such as Religious Orders, inasmuch as they are rewards for services rendered to the Church, and are for the common good, admit a wide and favourable interpretation. Even privileges granted to individuals, if they cause no prejudice to others, such as leave to eat meat on days of abstinence, receive a wide interpretation. Personal privileges, however, which benefit the privileged while curtailing the rights of others, as exemption from paying tithes, are regarded as a wound inflicted on the law which should be equally observed by all, and so they receive a strict interpretation.

Although privileges are in general granted in perpetuity, yet they cease in many ways: by revocation of the competent superior, by renunciation accepted by the competent superior, by such change in circumstances that in the judgement of the superior they have become harmful; a personal privilege is extinguished by the death of the privileged person, real privileges cease by the total destruction of the thing or place, but the latter revive if the place be restored within fifty years; they cease also by the lapse of the time or the completion of the number of cases for which the privilege was given (Can. 72-77).

On the privileges of the clergy see the Code of Canon Law, Canon 118 ff.

Religious Orders have at different times received very ample privileges from the Holy See, so as to enable them to work for God and the Church with the greater freedom and fruit according to their Institute. These privileges are granted immediately to the religious superiors, and are by them communicated as occasion requires to their subjects. The regular or mendicant Orders, who take solemn vows, are exempt from the jurisdiction of the Ordinaries, and subjected immediately to the Holy See. Exemption, however, and many other privileges of religious have been largely curtailed, especially since the time of the Council of Trent, and now, as far as their work among the faithful is concerned, and their public conduct, regulars are to a great extent subject to the authority and correction of the Ordinary.

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 1 passage

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. II, Sect. III, Scholion II. On Ecclesiastical Law

n. 94.

I. Ecclesiastical law strictly so called is the complex of canons or laws which have been made by ecclesiastical authority.

II. Ecclesiastical laws are distinguished:

By reason of the legislator, into papal, episcopal, and synodal laws.
By reason of matter, into dogmatic and disciplinary canons. The former propose truths pertaining to faith and morals; the latter regard the external government of the Church.
By reason of the mode in which they were made, into written and unwritten law. Unwritten law is divided into handed-down and customary law, according as it has been established orally or by the consent of the legislator in custom.
By reason of territory, into universal and particular laws, according as they bind the universal Church or only certain regions.
By reason of time, into: 1. ancient law, from the beginning of the Church until Gratian around 1150; 2. the law of the Middle Ages, from Gratian until the Council of Trent, 1545; 3. new law, from the Council of Trent until the Vatican Council, or rather until the new Code; 4. newest law, from the new Code.

III. Ecclesiastical laws, as they formerly were in force, are found for the greater part in the Corpus Iuris Canonici, as it is called; as they now are in force, in the Codex Iuris Canonici.

The Corpus Iuris Canonici consists of five parts, which are: 1. the Decretum Gratiani; 2. the Decretals of Gregory IX; 3. the Liber Sextus of Boniface VIII; 4. the Clementines; 5. the Extravagantes of John XXII and the Extravagantes Communes.¹
The Codex Iuris Canonici, arranged by order of Pius X, promulgated by the authority of Benedict XV in the year 1917, on May 27, and in force from May 19, 1918, consists of five books, of which the first treats general norms, the second persons, the third things, the fourth processes, and the fifth delicts and penalties.

¹ They are generally cited thus:

Decretum Gratiani. First part of the decree: c. 9 "Palam est" 11 = c. 9, D. 11 = c. 9, D. XI = canon 9 of distinction XI. Second part: c. 24, C. II, q. 7 = canon 24 of cause II, question 7. The treatise De poenitentia is cited in this way: c. 26, D. I de poenit. = canon 26 of the first distinction concerning penance. Third part: c. 15, D. III de consecr. = canon 15 of distinction III concerning consecration. Summaries written by Gratian are cited by the expression "dictum Gratiani" = dict. Gratiani. The cited dictum is determined by distinction or by cause and question.
The Decretals of Gregory IX are cited by the characteristic letter X = extra, for example c. 5 X de praebendis (III, 5) = c. 5 X 3.5 = the fifth chapter of the Decretals of Gregory IX concerning prebends and dignities, book III, title 5.
The Liber Sextus of Boniface VIII: c. "ut animarum" 2 de constit. in VIto (I, 2) = c. 2 de constit. in VIto (I, 2) = c. 2 in VIto (I, 2).
The Clementines: for example Clem. 1 de celebratione miss. (III, 14), or c. 1 III, 14 in Clem. = Clementina 1 de celebr. miss. = c. 1 III, 14 in Clementinis.
The Extravagantes of John XXII: c. un. de praebendis extrav. Ioann. XXII (tit. 3) = c. un. extr. Ioan. (3). The Extravagantes Communes: c. 1 de electione, extrav. com. (I, 3) = c. 1 Xvag. co. I, 3.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 2 passages

Vol. I, Pt. I, Q. III, Art. 5. Ecclesiastical Law, Introduction

n. 418.

The Church, being a perfect and independent society, has the power to make laws for its members in order to promote the common spiritual welfare. These laws are not an encroachment on the liberty of the Gospel, for Christ Himself bestowed on the Church legislative and other governmental powers suitable to her mission. The charter of the legislative authority of the Church is contained in the words of Christ to Peter: “I say to thee that thou art Peter, and upon this rock I will build My Church, and the gates of hell shall not prevail against it. And I will give to thee the keys of the kingdom of heaven. And whatsoever thou shalt bind upon earth, shall be bound also in heaven; and whatsoever thou shalt loose on earth, it shall be loosed also in heaven” (Matt., xvi. 18, 19; see also Matt., xviii. 17; Luke, x. 16).

n. 419.

The character of laws made by the Church is as follows:

(a) their purpose is to guide and assist the individual that he may more easily and perfectly fulfill the laws of Christ, and to protect and promote the welfare of the Church as a whole;

(b) their contents generally do not impose what is the height of perfection, but what is the minimum necessary for salvation (see 374);

(e) their number, unlike that of the laws of the Synagogue, is few. There are only six precepts of the Church that bind all the faithful; the other laws of the Church do not all oblige each individual, some being for prelates, some for priests, some for religious, some for judges, etc.;

(d) their obligation is not so strict as that of the laws of the Old Testament, for they are more easily changed or dispensed.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 44 passages

Vol. I, Treatise On Laws, Part Two. On the Principal…, Ch. II, Article I. On Ecclesiastical Law

- That is called ecclesiastical law which is made by ecclesiastical power for the right governance of the Church and the eternal salvation of souls.

The collection of various ecclesiastical laws constitutes Canon Law.

The Corpus of Canon Law consists of six parts, constituting three volumes. They are: the Decree of Gratian, the Decretals, the Sixth, the Clementines, the Extravagants of John XXII, and the Common Extravagants.

The first volume contains the Decree collected by Gratian, a Benedictine monk, and published in the year 1151 under the title: Concordance of Discordant Canons. The work is distributed into three parts, of which the first treats of ecclesiastical persons, the second of actions or of the matter and form of judgments, and the third of sacred things.

The first part is divided into one hundred and one distinctions, which are subdivided into chapters or canons. It is usually indicated thus: ch. Ieiunium 7, dist. 76; or also dist. 76, ch. 7.

The second part is divided into thirty-six causes; but the causes are divided into questions, and the questions into chapters. It is cited in the following manner: ch. Qui viderit 13, quest. 5, cause 32; or cause 32, qu. 5, c. 13. The Treatise on Penance, having seven distinctions, is cited thus, for example, ch. Mensuram 86, dist. 1, on Penance; or on Penance, dist. 1, c. 86.

The third part consists of five distinctions, which are divided into various chapters. They are cited: ch. Est unitas 49, dist. 4, on Consecration; or on Consecration, dist. 4, c. 49. For this part treats of the consecration of Churches, altars, etc.

The second volume contains the Decretals omitted by Gratian, or published after him, collected by St. Raymond of Pennafort, of the Order of Preachers, by command of Gregory IX, and published in the year 1230. It is divided into five books, which have titles and chapters; and they are cited in this manner: ch. Pervenit 28, on Appeals; or Decretals, book 2, tit. 28, c. 28. A chapter indicated in this latter way is found much more easily.

The third volume contains the Sixth Book, the Clementines, and the Extravagants both of John XXII and the Common ones.

The Sixth, or sixth book of the Decretals, is so called because it is added to the five books of the Decretals of Gregory IX, and has the Decretals published from Gregory IX up to Boniface VIII. It appeared in the year 1298 by the authority of Boniface VIII; it is divided into five books, which also have titles and chapters. It is cited in the same way, but there is added, in the Sixth, or under Boniface.

The Clementines, so called from Clement V, who ordered them to be collected after the Council of Vienne, over which he presided in the year 1311, are Constitutions published either by Clement himself or by the Council of Vienne. John XXII promulgated them in the year 1317 in five books, which, no less than the Decretals and the Sixth, consist of titles and chapters. They are likewise cited in the same way, but there is added in the Clementines.

The Extravagants of John XXII are the Constitutions which he himself published in the prior years of his pontificate. They are so called because they wander outside the corpus of law collected thus far. They are usually indicated thus: Extrav. of John XXII, tit. 4, c. 1.

The Common Extravagants, so called because they were published by John XXII and by several other Pontiffs, are themselves divided into five books, which have chapters with titles, but not numbered. They are ordinarily cited thus: ch. Vas electionis, on Heretics; Common Extravag., or Extrav. comm., book 5, on Heretics, c. 2.

Other Constitutions of the Councils of Constance and Trent, and of the Roman Pontiffs, were published afterward, but have not yet been collected into the corpus of Law.

Questions. - QUESTION 1. What are the Roman Congregations, and what are their various offices?

I answer: The following are enumerated: the Congregation of the Council, the Congregation of Bishops and Regulars, the Congregation de Propaganda Fide, the Congregation of Sacred Rites, the Congregation of the Index, the Congregation of the Holy Office, the Congregation of Indulgences and Relics, the Congregation of Immunity.

The Congregation of the Council (of Trent), or of Cardinals. It consists wholly of Cardinals, who are called the interpreting Fathers of the Sacred Council of Trent, and one of whom is distinguished by the title Prefect of the Congregation. Pius IV had first instituted this for the observance of the Council of Trent; afterward, moved by the requirements of affairs, Sixtus V endowed it also with the power of interpreting the decrees of the Council in those matters which pertain to the reform of morals or discipline and seem doubtful.

The Congregation of Bishops and Regulars. It also wholly coalesces from Cardinals. As its name indicates, it undertakes two matters to be treated: namely, those things which regard the good administration of the dioceses of the whole Catholic world, and those things which pertain to knowing and settling, according to the sacred Canons, the controversies and disputes of Regulars of both sexes.

The Congregation de Propaganda Fide. It is composed of Cardinals alone. It is wholly occupied in procuring the propagation of the Faith throughout the world. The College called de Propaganda Fide, for forming Missionaries, founded at Rome by Urban VIII, pertains to its cares.

The Congregation of Sacred Rites. Besides Cardinals, it also consists of Consultors, Prelates or Regulars. It defines and orders the sacred liturgy, and the things which pertain to it. The examination also of the causes of Beatification and Canonization of the Saints is numbered among its offices.

The Congregation of the Index, instituted by St. Pius V. In it Cardinals and several other learned men have a place. It exercises one sole office, but one of great moment for the good both of ecclesiastical and of civil society: namely, it has the care of books which are published, lest anything through them be able to be propagated among Christians against Religion and good morals; those which it judges harmful to the faithful, it accurately notes, forbids, and reports in the Index, which therefore is called the Index of prohibited books, so that the faithful may abstain from reading them as from poisoned pastures. Yet sometimes books are prohibited both by the Congregation of the Holy Office and by the Pontiff himself through particular Briefs and dogmatic Constitutions, especially if they savor of heresy.

The Congregation of the Holy Office, or of the sacred universal Inquisition. It is called Supreme, and consists both of Cardinals and of Prelates and Theologians.

It belongs to it to take cognizance of heresy, and also of suspicion of heresy, or of other irreligiosities. It was instituted by Paul III and confirmed by Sixtus V.

The Congregation of Indulgences and Relics. It has the faculty and office of settling all difficulties and doubts concerning Sacred Relics and Indulgences. It consists of a number of Cardinals to be determined by the Supreme Pontiff, and of other Prelates and Theologians.

The Congregation of Immunity, which coalesces from Cardinals and a few others. It inspects and takes cognizance of causes concerning ecclesiastical immunity, whether real, personal, or local.

- QUESTION 2. What is to be said concerning the sacred tribunals, gracious and contentious?

I answer: 1. Three gracious tribunals are numbered, namely: the Sacred Penitentiary, the Dataria, and the Roman Chancery.

The Penitentiary is a tribunal instituted for granting certain favors in the internal forum. Its office is to grant faculties of absolving from sins and censures reserved to the Pope, dispensations in vows and irregularities, and also generally in occult impediments of matrimony, as will be said more fully in its place. It also pertains to it to solve practical doubts, or to settle difficulties which are proposed to it.

The Sacred Penitentiary consists of one Major Penitentiary from the College of Cardinals, and of minor Penitentiaries taken from different religious orders. Pius IV reformed this Sacred Congregation in the year 1562, and St. Pius V completed the reform.

The Dataria has been so called from the style customary in Chanceries, because it notes the date, or epoch, of the favor conceded. It is a very ample tribunal by reason of the business referred to it, and of the favors which proceed from it. For from there proceed the erections, unions, divisions, and suppressions of Cathedral Churches, creations of new canonries or dignities, collations of reserved benefices, and public dispensations of impediments of matrimony.

The Dataria is constituted from a Datary, who is called Prodatary if he is a Cardinal, as almost always happens, a Subdatary, and several subordinate officials.

The Chancery wholly excels among the gracious tribunals. It is the tribunal of the Pontiff, through which Apostolic letters are drawn up, written, and expedited. The origin of that office is not certain. That office is of primary dignity, and its Chancellor precedes the other ministers of the Roman court. He has several officials under him, of whom some are major Prelates.

I answer: 2. Among contentious tribunals the Roman Rota holds the first place, about which we shall report very few things. Concerning its origin and the reason for its name there is not sufficient certainty. But the Roman Rota is a pontifical tribunal, instituted for taking cognizance of and deciding contentious causes brought from the whole Catholic world to the court of the Pontiff. The judges from whom this tribunal is constituted are twelve, taken from different parts of the Church. Among these, eight are Italians, two Spaniards, one Frenchman, and another German. Thus from the Constitution of Sixtus IV. All these are called auditors of the Roman Rota, because, as they say, formerly they were mere auditors and reporters of causes, but not judges properly so called.

- QUESTION 3. What is to be said concerning pontifical Bulls, Briefs, and Rescripts?

I answer: 1. Bulls are certain Constitutions of the Roman Pontiffs which for the most part regard weightier business, and are expedited in the Apostolic Chancery, inscribed on somewhat dark and thicker parchments, in Lombardic or Teutonic character. They are called Bulls from the seal, either leaden or golden, displaying on this side the images of the Holy Apostles Peter and Paul, but on that side the name of the Pontiff, which adheres to a cord of silk or hemp.

They obtain various names from various objects. Some are gracious, which contain the conferring of a favor. - Others are of justice, which regard the administration of justice. - Others are consistorial, which are expedited in the Consistory. - Others are half-bulls, which are made by a Pontiff not yet consecrated, and in the seal do not display the name of the same. Bulls are cited by the words with which they begin. Bullaria are called collections of Bulls.

Briefs are called certain Constitutions of the Roman Pontiffs for business for the most part lighter. Through the Secretary of Briefs, written on white and thin parchments, in Latin and in an elegant character, they are expedited. They have a seal of red wax, on which the image of St. Peter engaged in fishing is impressed, and therefore they are said to be expedited under the Ring of the Fisherman.

Vol. I, On Laws, II. On the Author of Law · Vol. I, On Laws, VII. On Dispensation · Vol. I, On Laws, VIII. On Privileges · Vol. I, On Laws, IX. Privileges of Clerics, Bishops, Regulars

Rescripts are called responses of the Pontiffs to requests. There is a twofold kind of them. Some are issued after the manner of familiar letters, which the Supreme Pontiffs are accustomed to give either when they are petitioned by those with whom they have a special relation of friendship, or when they are asked for counsel as learned and pious men; nor is any force of obliging inherent in these, since they proceed more from courtesy of mind than from true authority. - Others are issued after the manner of Decrees by the Pontiffs, as successors of St. Peter and Pastors and Teachers of the universal Church; and consequently the greatest force is inherent in these, since through them pontifical right and supreme jurisdiction are exercised.

n. 129.

- QUESTION 4. Whether pontifical Epistles, and responses not inserted in the corpus of Law, have the force of law?

n. 129.

I answer: Yes, if their authenticity is established, and they have been sufficiently promulgated; namely, if they are published in that manner in which laws are usually published, or if from the usage and sense of the universal Church already for several centuries they are held as authentic and sufficiently promulgated. - St. Lig., no. 106. - Apostolic Man, no. 34.

…and 4 more passages — all of them are listed on the topic page.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 89 passages (filed under the subtopics)

Vol. I, On Laws, II. On the Author of Law

n. 188.

Whether custom has the force of law? - Custom, as it is considered materially, is a manner of acting introduced from frequent acts of the whole community, or of the greater part of the same. But formally it is a certain right constituted by morals, which is taken as law, even if law, namely written law, is lacking. Schmalz. l. 1. t. 3. n. 1. Custom has the force of law. This is clear: 1. From the common opinion of theologians. 2. From various places of either canon or civil Law, from which it is undoubtedly drawn that custom is to be held as law. Cf. tit. de Consuet.; L. 32. 33. 35. 36 de Legib.; C. I. 2. 580. 1654; C. G. a. 671. 3.

By reason; for, once a custom has been introduced, for example, against a law, the law no longer contributes to the common good; and on the contrary, once introduced beyond the law, the reason of the common good urges. - L. 107; S. Th. 1. 2. q. 97. a. 3, 2. 2. q. 79. a. 2 ad 2; Struggl q. 4. n. 28 seq.; Ithur. Cas. 53. n. 7; Bouix De Princip. p. 2. s. 6; Wirceburg. c. 5. a. 4. In the external civil forum generally, by reason of public order, no custom against law is usually admitted, neither past nor future, but only in certain matters determined by the law itself. C. I. preliminary law, year 1866, a. 48, art. 580. 1654, C. I. Comm. 1; C. H. 4 and Law May 11, 1888, a. 5. 6. 7; C. H. 5. 6; C. L. 9; C. G. 671; C. He. preliminary title a. 1. 5. But in canon law, since this Law chiefly regards the good of souls, custom has constantly been admitted, and is also admitted at present.

n. 189.

How manyfold is custom? - A threefold custom is usually distinguished: according to law, namely that which confirms and interprets an already established law by long use, Cf. Can. De istis D. 4; L. Si de interpretatione de Leg. 27 Dig.; beyond law, which introduces a new right, commanding or prohibiting something concerning which no written law is had, Cf. Can. Consuetudo D. 1; L. De quibus de Leg. 32 Dig.; against law, namely by which either a law is not received, or, once received, is abrogated or derogated. L. 107. 108. "Custom both has the force of law, and abolishes law, and is the interpreter of laws." S. Th. 1. 2. q. 97. a. 3. - C. I. 580. 1654; C. G. 671.

Besides, one custom is universal, which obliges all in the universal Church, or in the whole territory of some temporal Prince; another particular, which obliges only in some place, in some diocese, etc. The style of the Curia is reduced to particular custom, which is taken for the customary observance in the Roman Curias, and for unwritten law, and is to be observed as law from the Constitution Cum gravissimae of Paul III. - But generally the customary observance in some place is called the local style, and outside the place it has no force, Riganti on Reg. 42. n. 225, on Reg. 45. § 1. n. 97 etc. From C. I. Comm. 89, C. I. Civ. 1513, in the matter of commerce style and custom prevail over common Law. - Suarez l. 7. c. 5. n. 5.

n. 190.

What things are required for having custom? - In order that custom be legitimate several conditions are required:

That it be rational, that is, that it not be an incentive of sin, nor pernicious to the common good. Otherwise it can never acquire the force of law, since law must be honorable, useful, just. Hence there can be no custom against natural and divine law, but only against human law; nor against this in those things which break the bond of ecclesiastical discipline, C. 5. 11 de Consuet., or which can be constituted only by privileges. For since custom is an unwritten law, it can be had only in those things which can be constituted by laws. L. 39 de Legib.; L. 107; S. Th. Quodl. 2. a. 8; Schmalz. l. c. n. 7.
It is required that it be introduced by the whole community, or at least by the greater part of it, capable of being governed by law, and capable of making law; and if it cannot of itself make law, it suffices that its manner of acting can obtain the force of law, the consent of the Prince acceding. For that is judged morally done by all which is done by the greater part. But custom must be introduced by those for whom laws or statutes can be constituted. Hence not only perfect societies can introduce custom, but also imperfect ones, a province, city, diocese, chapter of canons, religious order, monastery, etc. Women cannot introduce customs against the proper laws of men, nor conversely; as neither can ecclesiastics against the laws of laymen, or conversely, unless the matter is common. Therefore clerics as regards spiritual matters are not obligated by a custom made by laymen, since laymen are incapable as regards spiritual matters of introducing custom for clerics. Private persons cannot introduce custom. L. 32 de Legib.
But it must have been introduced through repeated acts, and not interrupted until the custom is completed, voluntary acts, that is, neither from ignorance nor from error, for example if the people thinks that a law exists which in reality does not, nor extorted by force and fear, but from an intention of introducing custom and of obliging themselves, or disobliging themselves, finally public acts. For only these acts, with these conditions posited, can be had as conducing to the common good, so that then the legislator can reasonably consent to such a manner of acting. Moreover custom, since it has the force of law, must be promulgated no less than law. - Not interrupted: they can be interrupted in two ways, in fact, if the community ceases to act; in right, if the superior urges the law. With the intention of introducing custom: this mind or intention is gathered from circumstances, namely if the custom is constantly observed, and with no light inconvenience, if transgressors are punished, if pious men commonly think so. - L. 39 de Legib.; S. Th. 1. 2. q. 95. a. 4, q. 97. a. 3.
It is by no means required that good faith always be present from the beginning, for even by sinning a custom can be made which afterward becomes honorable. For custom against law has a threefold state. In the beginning, all those introducing the custom against the law sin. In progress, those using a custom introduced by their elders no longer sin, but they can be punished. In the end, they neither sin nor can be punished when using the custom already prescribed. Therefore custom cannot altogether be equated with prescription. L. 107; Schmalz. l. c. n. 6.
It is required besides that it endure for a long time. But here one must distinguish: either custom is introduced by way of connivance, namely the legislator knowing and conniving, which happens when the legislator knows that the law is not received and dissembles, although he could easily urge observance; or it is introduced by the ordinary way of prescription, the legislator being ignorant. If the first, Benedict XIV teaches that "no space of time is necessary.... For then, after a few acts tolerated by the superior, it is presumed that he by this very connivance tacitly revokes his law, and does not wish to bind by it the community to which it is displeasing." De Syn. l. 13. c. 5. n. 3; Ithur. Cas. 53. n. 7. 8. If the second, there are several who require 10 years, both as regards Roman Civil Law and Ecclesiastical Law. But others require 40 years as regards each Law. For from this Law an inveterate, long-lasting, long, long-lived custom is required. L. 32. 33. 35 de Legib.; L. 1. 2 C. Quae sit longa. Consuet.; L. 107. 139, l. 3. n. 849. And here must be recalled centenary and immemorial custom, by which all those things can be acquired which can be acquired by privilege and indult of the Prince, C. 13 de Iudic. n. 5; and it is not revoked even by a clause revocatory of any custom whatsoever having been added, "unless it is expressed, because when the superior wishes also to revoke that custom, he expresses it." L. 109.
Now custom can obtain the force of law insofar as the consent of the Prince accedes to it, either express, or tacit, which is had when the Prince knows the custom and, although he could, does not contradict it, or at least legal consent, which is that which is had beforehand through laws universally approving legitimate customs. For legal consent of this kind it is not required that the Prince know the custom; nevertheless it is required that it not be established that he was unable to protest against the custom. For if the Prince constantly resists, then no custom is made. But if no law of this kind is present, such a general will is always supposed in the legislator. For the common good demands this. - C. Cum tanto fin. de Consuet.; L. De quibus de Legib.; L. 107, l. 3. n. 290. 1009; Suarez l. 7. c. 8. 15; Schmalz. l. 1. p. 1. t. 4; Gur. Cas. 132 seq.; S. Th. 1. 2. q. 97. a. 3; E. M.

n. 191.

What if contrary custom is prohibited by law? - "If the clause is added, notwithstanding any custom whatsoever, the opposed past custom is understood to be reproved, but not the future.... But if the clause reproves any future custom whatever, still they say that it is more probable that such a custom can abrogate the law. If it is reproved... as irrational... as contrary to natural or divine law, then no custom can have force. But if it is reproved as irrational for the time in which the law is made, then from a new cause it can be rendered rational." L. 108, l. 6. n. 325 toward the end; A. S. S. v. 4. p. 26. Since every law is rational, it cannot exclude rational contrary customs after they have already been formed. Therefore, if the clause is added, any contrary custom in the future being excluded, this clause renders more difficult an arising ordinary contrary custom, and excites the vigilance of the legislator to impede it as far as possible, but it will not exclude an extraordinary, centenary and immemorial custom already formed.

Vol. I, On Laws, VII. On Dispensation

n. 235.

What is dispensation? - Dispensation is the relaxation of law in a particular case on account of a special cause. For it happens "that some precept, which is for the advantage of the multitude in the majority of cases, is not fitting for this person or in this case; or through this something better would be impeded, or even some evil would be introduced." S. Th. 1. 2. q. 96, a. 1. It obtains its effect as soon as it has been granted. But in order that someone may use it licitly, it is necessary that it be manifested to him, lest by presuming it he expose himself to danger of violating the law, if perhaps it has not been granted.

It differs from a declaration, by which it is declared that this or that case is not comprehended in the law. It differs from license, which has place when the law does not prohibit a thing absolutely, but only conditionally, namely without the consent and approbation of the superior. Wherefore the bond of law is not relaxed through license, but merely the condition is placed, and when it has been placed, the law no longer has place. Then the law is rather observed, for the law in reality commands that license be sought, if such or such a thing is done, namely that the consent of the superior be sought. It differs from privilege, which can be both against law and also beyond law, and, when it is against law, simply derogates from it, and therefore not only for a case, or for some cases in particular, but for all. It differs also from invalidation, abrogation, and cessation of law, because in these the law is extinguished for all. S. Th. 2. 2. q. 147, a. 4.

n. 236.

Note: Power of dispensing given generally falls back into a privilege beyond law, and is favorable, and therefore has a broad interpretation, but not an extensive one. Generally, for when given particularly it is of strict interpretation. For general power is necessary for the common good and looks to it; not so particular power, which is rather a certain begun dispensation. But dispensation, because it derogates from law, is odious, and is of strict interpretation; unless it is owed, or was granted motu proprio, or to a community, or for the common good, or inserted in the Body of Law. Strict, but not restrictive, unless perhaps the right of a third party is injured. But it must never be interpreted in such a way that it becomes useless or burdensome to him to whom it was granted. R. 61 de R. I. in 6. L. 187, 192, 194, 195.

n. 237.

What things are required for dispensation? - It is necessary that he who gives the dispensation give it knowingly and willingly, but one extorted by fear is valid; and that he to whom it is given, regularly speaking, accept it. For a benefit is not given to one unwilling. L. 1. 9 de Donat. But we must understand as unwilling also him who does not consent. L. 8 § Invitus de Procur. Hence, if another has sought an ordinary dispensation of an impediment, and the spouses, ignorant of this, contract marriage, that dispensation does not profit them. In the case, in itself, it suffices that one accept the dispensation, since a granted dispensation necessarily affects both. But it can be given and accepted even tacitly, and by the fact itself. Regularly speaking, for absolutely one can be dispensed even while ignorant and unwilling. Since it belongs to the legislator to bind and to loose. L. 184, 187; Sanch., de Matr., l. 3, c. 36, n. 3.

On the part of the one granting it, a just cause is required; otherwise the superior would not be a faithful guardian of the law, but an imprudent dissipator. Moreover, natural right dictates that a part ought to be conformed to its whole, unless a just cause excuses. Without a just cause, a dispensation given by the legislator himself is indeed valid, although illicit; but by an inferior, or by a delegate, both illicit and invalid. For the legislator has as his own the power of binding and loosing, to which that just cause is extrinsic; but he is not considered to communicate it to an inferior or delegate except that he use it reasonably. Yet both the legislator dispensing without cause sins lightly, and the dispensed person seeking it; but he who, the law having been removed by dispensation, uses it, does not sin even lightly. For neither the former in giving nor the latter in accepting do injury to anyone, although they injure legal justice. But a delegate dispensing without a just cause in a grave matter sins gravely, since he gravely abuses the power conceded to him. In a grave matter, for in a light matter it does not exceed venial fault. But on the part of the petitioner it is required, both for liceity and for validity, that a true cause be present, since the superior does not dispense unless the petitions rest upon truth. Trent, s. 25, c. 18 de R.; S. Th. 1. 2. q. 97, a. 4; 2. 2. q. 88, a. 10. Moreover, a cause probably just suffices, both for seeking and for granting a dispensation, validly and licitly, lest the matter be too anxious and liable to scruples. Nor indeed is it necessary that it be as great as would suffice of itself for excusing; otherwise the power of dispensing in the superior would become altogether useless. "A cause is the dignity of the petitioner or of the superior, so that he may show himself benign, and also common or private utility and similar things. But in dispensations of impediments for marriages, the payment of money in aid of the Church suffices as a cause, as is the practice." L. 195. Matrimonial dispensations of lesser degree are now granted from reasonable causes approved by the Holy See, and are subject to no challenge. Ord. serv. in Rom. Cur., Norm. pecul., c. 7, a. 3, n. 21. L. 178, 181, 182, 186, 192, 195; l. 3, n. 251; l. 7, n. 353; S. Th. 1. 2. q. 96, a. 6; q. 97, a. 4; 2. 2. q. 63, a. 2, ad 2; Wirceburg., c. 5, a. 2; E. M.

n. 238.

When a just cause exists, is the superior held to dispense? - R. Negatively: if the cause is only sufficient, so that dispensation is permitted; and the superior can either give it or deny it, or give it to one and deny it to another, for it is a mere grace, and therefore free. Moreover, just as dispensation profits the subject, so denial of the same profits the common good.

R. Affirmatively, if the cause renders the dispensation necessary for avoiding common damage, or private damage of great moment, or for procuring common utility, or great private utility; otherwise he would sin gravely or lightly according to the matter; for this is why the power was given to him. "Nevertheless, when dispensation has been denied, even unjustly, the subject cannot act against the law; unless such a case urges as to draw it out from the law. Wherefore if a Bishop unjustly denies dispensation from publications before marriage, from an urgent grave cause it can be contracted without them." L. 179; S. Th. 1. 2. q. 97, a. 4.

n. 239.

In doubt whether a case needs dispensation, is it necessary? - R. Negatively in positive doubt; for the extension of the law to that case remains uncertain. - R. Affirmatively in negative doubt concerning the existence and sufficiency of an excusing cause; for the certain law possesses. But negatively in negative doubt concerning the necessity of dispensation; for then, on the contrary, liberty possesses. L. 97, 180, 192, 195; l. 3, n. 325; l. 4, n. 154; H. A. tr. 2, n. 51.

n. 240.

Is it licit to use a tacit, presumed, interpretative dispensation?

R. To the first: Affirmatively, for the will of dispensing is truly present in the superior; since a tacit dispensation is had when the superior wills something with which dispensation is connected, or when, knowing and able to contradict, he does not contradict.

R. To the second: Affirmatively, for then also the will of dispensing is truly present in the superior, as is reasonably presumed from the hypothesis; for example, if, knowing that you are excommunicated, the prelate confers a benefice upon you. This presumed dispensation, presumed concerning the present, falls back into tacit dispensation.

R. To the third: Negatively, for there is not present, nor does any reason persuade that there is present in the superior, the will of dispensing, but only a reason is present that such a will would be present in the superior if he knew the matter. Yet in matters of lesser moment one could then more easily use epikeia. Nor does it matter that a presumed license concerning the future is valid; for for actions which require for their validity a positive act of the will, an interpretative voluntary is not sufficient, as happens in dispensation, since relaxation of law requires the positive consent of the superior. On the contrary, for actions for which it merely suffices that the superior not be unwilling, as in the case of license to be sought, an interpretative voluntary suffices. L. 187; l. 3, n. 288; Struggl, tr. 1, q. 1, n. 21; Sanch., de Matr., l. 3, d. 35, n. 16, 24.

n. 241.

Who can dispense, and with whom? - R. To the first: Since dispensation is the relaxation of law, it is clear that it is an act of jurisdiction. Wherefore only he can dispense by ordinary power who made the law, or his superior, or successor; but by delegated power, he who has received from these the power of dispensing. The reason is that the legislator has as much power for loosing as for binding; he has equal power with his predecessors; finally he has the power of inferiors subordinated to himself. But an inferior has no power over the law of his superior.

The legislator cannot dispense even in his own law, if the law passes into a contract. For pacts are to be observed by all. But an inferior can dispense in the law even of a superior, if dispensation is generally permitted in the law, e.g., if it is said "until he is dispensed," if custom has prescribed it, if it is commonly admitted by theologians. Hence validly and licitly an inferior, by ordinary power, dispenses from a just cause in the law of a superior: 1. Concerning light things, i.e., those which do not oblige under mortal sin, even if recourse to the superior is easy. 2. In cases which occur frequently, and in doubtful cases. 3. When there is urgent necessity, recourse to the superior is difficult, and there is danger in delay. 4. Man cannot dispense himself from divine and natural law on account of his own preservation.

By ordinary power, delegated. Ordinary power is that which belongs to someone by force of his dignity, or of his office; delegated power, that which belongs by concession of him who has ordinary power. If delegated power is granted by law, it is equated with ordinary power, as being annexed to office and dignity; but if it is only from a superior, it is purely delegated. - L. 90, 190-192; l. 6, n. 902.

R. To the second: Dispensation can be made only with those who are subject to the jurisdiction of the one dispensing; for example, with inhabitants having domicile, whether they are in their own territory or outside it, L. l. 7, n. 81; with resident strangers, as long as they have quasi-domicile in the territory, S. O., 22 Nov. 1865, A. S. S., vol. 2, p. 671, who, once a dispensation has been obtained, can use it even when they go abroad, Suarez, l. 8, c. 26, n. 12; with wanderers, as long as they are staying in the territory, Bened. XIV, Not. 33, n. 10; indeed even with travelers, since travelers also by access to the local superior sufficiently become subjects while they are in foreign territory, and since this dispensation is personal, it adheres to the person, and therefore follows the traveler even outside the territory or diocese of the one dispensing, cf. 298; finally with themselves, although they have only delegated power, but general. The reason is "because it is purely voluntary jurisdiction, which can be exercised even toward oneself. Hence one can well dispense oneself in vows, oath, fast, etc." L. 183. General, because no one is excepted in a general faculty, in whatever way it is had. But it is otherwise if someone has been delegated only for particular cases. - L. 158, 183; l. 3, n. 262; E. M.

n. 242.

Can the Pope dispense in divine law? - Those things which are prohibited by divine law are of a threefold class. For there are objects evil in themselves, and by reason of themselves. And these can never become not evil and licit. There are objects evil in themselves, but by reason of danger, or by reason not of the very being of order but of the perfection of this order. And these, when the danger has been removed and on account of peculiar circumstances, can become not evil and licit. Finally, there are objects evil in themselves, but on account of another's right. When this right ceases, from the fact that someone has power over that right, that which otherwise is illicit can be rendered licit.

Therefore the Pope can dispense from a just cause in those things in which divine right arises from human will, as in vows and in oaths. For it is certain that in these he acts in the place of God. Hence it is that dispensation in a vow or oath, without a just cause, even when made by the Pope, is invalid. In the rest it is disputed whether he can truly dispense from a most grave cause, or only declare that divine right then ceases. In practice it matters little. In the rest, namely in those in which he can dispense; for he cannot dispense in all, as is clear from what was set down at the beginning, but only in some, e.g., in betrothals, in ratified marriage, etc. But always except laws which pertain to the essential constitution of the Church, laws concerning the forms and matters of the sacraments, concerning the offering of sacrifice, etc. Nevertheless in doubtful matters the Supreme Pontiff can infallibly declare divine and natural right. Therefore that phrase, "Whatever you shall loose," etc., is not unlimited, but must be restricted to those things which pertain to the spiritual good of the Church and of souls. Cf. 180. L. 180, 188, 189; S. Th. 1. 2. q. 100, a. 8; 2. 2. q. 88, a. 12; q. 89, a. 9, ad 3; S. q. 65, a. 1, 2, 4; q. 67, a. 3; Quodl. 4, 13; Struggl, q. 4, n. 11; E. M.

n. 243.

In what laws can Bishops dispense? - By ordinary right, they can dispense in their own dioceses from laws enacted in provincial synods, since it has been so introduced by custom, C. Cum contingat 13 de For. comp., provided they are not specially reserved to the Council. Likewise they can dispense in all episcopal and synodal statutes, and indeed independently of chapter and clergy. Nor is it an obstacle that the provincial Council, or diocesan synod, was approved by the Apostolic See. For that approbation is not specific and absolute, such that the individual things are rigidly examined, known, and approved motu proprio and with certain knowledge. But it is ordinary, common, and conditional, if canonically, etc.; and this indeed gives no new right, for only the decrees of the Council, legitimately established and which of themselves have the force of obliging, are confirmed; and the review of them made by the S. C. C. is only a condition without which they cannot be promulgated. Bened. XIV, de Syn., l. 13, c. 5. Moreover Bishops dispense by their own right in Pontifical laws also enacted for their diocese, for they are held as diocesan laws. But from episcopal and synodal statutes the chapter can also dispense, when the See is vacant, since it succeeds into the place of the Bishop. The same cannot be done by the Vicar General of the Bishop, without special delegation, since he does not have this from his own ordinary right; since in a general commission the faculty of dispensing is not understood.

Bishops cannot, however, dispense in a synodal taxative law of the congrua for those to be ordained. The reason is that Innocent XII, B. Speculatores, established that "the benefice be of such income that, for suitable support of life, whether according to the synodal assessment, or, if it is lacking, according to the custom of the region for those to be promoted to sacred orders, after burdens have been deducted, it suffice by itself, and that it be peacefully possessed by the one to be ordained." Wherefore the Pontiff implicitly takes away from the Bishop the faculty of dispensing in this matter, or rather of arbitrating, or of making the calculation in his own way. But because every power, and especially spiritual power, is given not for destruction but for edification, from the very nature of ecclesiastical laws, and from the presumed will of the Roman Pontiff, as well as from custom, Bishops dispense also in common laws: 1. when the matter is light; 2. as regards doubtful cases; 3. as regards cases which often occur, as in most vows, the divine office, observance of feasts, abstinence, fasting, with private persons and in particular cases. - Likewise they dispense in other Pontifical laws also, whenever recourse to the Supreme Pontiff is not easy, and there is grave danger in delay, e.g., in impediments of marriage, in irregularities, in vows reserved, etc. But they can dispense in Pontifical laws if in the law itself it is said that dispensation can be made from it; for if these words signify anything, and permit dispensation, they certainly permit it to inferiors, namely to Bishops. - Matrimonial dispensations, however, are excepted, cf. Trent, s. 24, c. 5 de R. M., from the practice and Style of the Curia, and also from the Constitution of Pius X, Sapienti consilio, and Ord. serv. in Rom. Cur., or if by law the Ordinaries themselves were the ones to dispense, as is seen in the case of a Bishop ordaining a bigamist, C. Super eo 2 de Big. L. 180, 190, 191, 192; App. 2, n. 54 ff.; l. 6, n. 613, 902; H. A. tr. 2, c. 6, n. 57; De Iustis, de Dispensat. Matrimon., l. 2, c. 2, n. 45 ff.

n. 244.

Note: A Bishop is said in the preceding cases to dispense by ordinary right, because such a faculty belongs to them by force of their proper office, to which it is perpetually annexed, and therefore they can well delegate it to another. - It must be furnished gratis by whomever the dispensation pertains to. Trent, s. 25, c. 18 de R. In doubtful cases the Bishop can declare that the case does not need dispensation, or dispense for caution. - Concerning dispensation for caution, Benedict XIV notes these things, Not. 101: "Diana wisely remarks that dispensations of this sort are granted by the Sacred Penitentiary or Datary not as necessary, but so that the faithful may be rescued from every scruple and anxiety of soul." Such a dispensation will then, regularly speaking, not be necessary; but it is very useful; for if perhaps afterward the truth appears, nevertheless one truly remains dispensed. L. 190, 192, 193; l. 6, n. 613; de Priv. 57, 58; Struggl, q. 4, n. 12; Sanch., l. 8, d. 6, n. 18. Besides these ordinary faculties, Bishops often have many other extraordinary faculties for three years, for five years, etc.; these delegated faculties they can also regularly subdelegate to others. Cf. 254.

n. 245.

Can pastors dispense in some things? - By ordinary right they can, by reason of custom, dispense with subjects, only for particular cases, in fasts, in abstinence, in works prohibited on a feast day, and in other similar matters which frequently occur and need prompt dispensation. By reason of custom, for they do not have jurisdiction in the external forum. By ordinary right, since this faculty has been attributed to them by reason of office, as being exercised in cases which frequently occur. Indeed they can even dispense in graver matters, in which Bishops can dispense, when a most grave necessity stands, if the Bishop cannot be approached and there is danger in delay. L. 190, 192; l. 3, n. 288; l. 6, n. 613; H. A. 59.

n. 246.

Can regulars dispense in some things? "Regular prelates have the power of dispensing (in particular cases) with their subjects in ecclesiastical precepts, as Bishops can with their diocesans. For they themselves have quasi-episcopal jurisdiction, as the doctors commonly teach.... And the same holds as regards the rules of religion." L. de Privil., n. 106, 108. "Confessors of the Mendicants, and other regulars communicating with them, have the power of invalidating, remitting, and dispensing oaths and vows. They can besides dispense with spouses as regards the impediment to petitioning the debt, on account of incest committed with a blood relative of the spouse. But it must be noted here that the confessor must obtain special license in this matter, and at least from the lower superior of his monastery. Moreover Mendicant confessors can dispense with spouses in a vow of chastity, elicited before marriage, for petitioning the debt, just as also in a vow elicited after marriage. They themselves can dispense in all vows in which Bishops can, by ordinary right, dispense with their subjects." L. ib. 109; l. 1, n. 194; l. 3, n. 257, 258; l. 4, n. 63, 64; l. 6, n. 987, 1076, 1127, 1128; La-Croix, l. 3, p. 2, n. 1310; Struggl, q. 4, n. 13.

n. 247.

Whether dispensation can be given in the external forum, or in the internal forum? - Dispensation can be given in the external forum, since if the bond of law is constituted in the external forum, the loosing of that bond can also be given in the same forum. And thus dispensation from abstinence, which is given by indult during the time of Lent, is given in the external forum. - It can also be given in the internal sacramental forum; for in the sacramental forum all those things which pertain to spiritual salvation can well be treated. It can likewise be given in the internal forum of conscience, although not sacramental; for as sins properly pertain to the sacramental forum, so to the forum of conscience pertain all things which look to the spiritual salvation of each one.

But this essential difference intervenes between the sacramental internal forum and the merely internal forum of conscience: that in the former matters are treated among those present; in the latter matters can also be handled among the absent. The forum of penance is also distinguished; but this, according to some, is the sacramental forum; according to others, it is the forum of conscience. Wherefore what is committed to someone in the forum of penance, apart from absolution of sins, e.g., dispensation from fast, abstinence, etc., can also be expedited outside the sacrament of penance, although the mandate is directed to a priest confessor. - Suarez, l. 8, c. 6, n. 15, 16; Salm., tr. 18, c. 1, n. 33; Schmalz., l. 2, t. 2, n. 2; L. 194; S. Th. 1. 2. q. 97, a. 4.

n. 248.

When does dispensation cease? - Dispensation ceases: 1. By revocation; for by it the bond of law is restored. Wherefore a revocation made by the legislator, even without cause, is valid. Made by a delegate, even from a just cause, it is not valid; for once the dispensation has been given, he has completed the delegation accepted. Made by an inferior prelate, when he granted it by ordinary right, if from a just cause, it is valid; otherwise, however, if without a just cause, because he cannot restore the law of a superior. For the Superior is not considered to have granted a faculty for such revocation. Of law; for if the obligation depends not on law, but on one's own will, as in vows, it cannot be restored without this will. A prelate revoking a dispensation without just cause sins in itself only venially. L. 197. 2.

By renunciation, which is valid immediately in those things which have force from one's own will, in vows, oaths, etc. But in those things which obtain effect from law, e.g., in impediments of marriage, in the canonical hours, etc., it is valid when it has been accepted by the superior, who can restore the bond of law. - L. 198. 3. When the motivating cause totally ceases, if the dispensation has a successive course and was not given absolutely, as, e.g., dispensation from the law of abstinence on account of infirmity.

But otherwise, if the dispensation was given absolutely, although, with attention to the matter, it can have a successive course; or if it was perfected by one act, e.g., if someone was dispensed from irregularity on account of the poverty of parents, or on account of uprightness of morals, or on account of scarcity of ministers. Wherefore one who was absolutely dispensed from a vow of chastity, when the spouse has died, can marry another; but if the dispensation was granted for a special case, he needs a new dispensation. Absolutely; if the cause is judged perpetual, then the dispensation is considered to have been given absolutely, even if afterward by accident the cause ceases. But otherwise if the cause is judged to last only for a time. 4.

If some commutation of burden was joined to the dispensation, then also, when the cause ceases, the dispensation does not cease. - Likewise dispensation does not cease: 1. By non-use, or contrary use, whence one will always be able to use it afterward, since these cannot restore the bond of law. 2. By leaving the territory of the one dispensing, because what has legitimately been done ought not to be retracted, even if afterward that case occurs from which a beginning could not have been had. 3. By the death of the one dispensing, whoever he may be, whether a superior or inferior prelate; since dispensation is a grace made, and a grace made does not expire by the death of the one granting it, or by his removal from office. C. Si super 9 de Off. et pot. iud. del. in 6. The same holds concerning licenses granted. - R. 73 de R. I. in 6; L. 195-198.

Vol. I, On Laws, VIII. On Privileges

n. 249.

What is a privilege? - A privilege is, as it were, a private law, granting some special benefit to someone, existing outside the Body of Law. Private, because it grants something special to someone and not to all. Law, because it is something stable, not situated in a merely passing act; and while it grants to the privileged person the right of using the privilege, it imposes on all, or on the whole community, the obligation of not impeding the use of the privilege. Special, for privileges would not be granted if, besides the general law, nothing special were granted to anyone. Benefit, since it contains the grace of the Prince. To someone, i.e., whether to an individual person, or to a moral person, e.g., a University, a religious Order, etc. Existing outside the Body of Law, because it is not properly a law, whence neither does it need promulgation; but since it is a kind of donation, it needs acceptance. And this holds concerning any granted grace. Regularly nothing is acquired except by one willing. Cf. Schmalz., l. 4, t. 3, n. 203 ff. But petition stands for acceptance, and if it is sought through a procurator, it suffices that it be accepted through him. Wherefore, as long as someone is ignorant whether a grace has been granted, regularly he cannot licitly use it; but more truly he can validly use it, Suarez, l. 8, c. 25, n. 25; Laymann, c. 23, n. 10; Sanch., de Matr., l. 3, d. 36, n. 6, 8; l. 8, d. 21; Engel, l. 5, t. 33, n. 8; l. 4, t. 3, n. 15, if it is true that the grace was granted. Nor does it matter if the grace was sought for another, even one ignorant of it, indeed even unwilling. Sanch., de Matr., l. 8, d. 26, n. 4; Bonac., d. 1, q. 3, c. 3, n. 4. Hence, if someone neither himself sought the grace, nor knows that it was sought by another and granted, and yet perhaps uses it, one must stand for the validity of the act, namely when this depends only on the will of the one granting the grace, as, e.g., may be seen in dispensations of marriage in the root; or if the Supreme Pontiff, at the request of a Cardinal, permits an outside priest to assist at a marriage, and this priest, ignorant of the petition and concession, assists. But unless something else is drawn out from the concession of the grace, it is considered to be granted only to one knowing and accepting. - C. 17 de Praeb. in 6; L. 1; Suarez, l. 8, c. 25; Lugo, de Poenit., d. 19, s. 2.

A privilege differs from a law, properly such, that is singular; namely one which graciously establishes something special for a certain kind of persons, and, since it is a true law, is contained in the Body of Law; and since at the same time it contains some special benefit, it is a true privilege; but because it is contained in the Body of Law, it is commonly called a privilege enclosed in the Body of Law. Such, for example, is the faculty granted to bishops by Trent, s. 24, c. Liceat 6, of dispensing from irregularities arising from hidden delict and of absolving from hidden cases even reserved to the Apostolic See; restitution in full granted by laws to minors, wives, and interdicted persons. Wherefore, as other laws, so also these need not acceptance but promulgation. Indeed not even the knowledge of those to whom they have been granted is required, in order that they may validly use them. Cf. Suarez, l. 8, c. 26, n. 16. Likewise, just as other laws, so these also are perpetual and do not cease by renunciation, although in particular cases someone can renounce the use of a right introduced for himself, provided the privilege was not granted on account of others, or on account of the dignity of an order or body, or on account of the presumption of common danger of fraud; as those things which have been granted to the weakness of persons, such as restitution granted to novices professing before canonical age, if these renounce the right of restitution. Trent, s. 25, c. 16 de Reg. De Iustis, de Dispens. matrim., l. 1, c. 3, n. 51 ff.

n. 250.

Of how many kinds is privilege? By reason of the subject, one privilege is personal, which is granted to an individual person, e.g., to Titius, or to a body of persons, e.g., to minors, or to a moral body, e.g., to a religious order; another is real, which is also granted to persons, but with respect to dignity, office, place, or thing. Real privileges are perpetual, and to these are also counted personal privileges of the second and third species. Wherefore real privileges pass to successors in the same thing. But personal privileges are extinguished with the same person. - Hence all special faculties habitually granted by the Holy See to Bishops and other local Ordinaries, and also to Superiors General of religious Orders, even for a determined number of cases, do not end on account of their death or cessation from office, but pass to successor Ordinaries. S. O., 24 Nov. 1897; 20 Dec. 1899. But faculties granted nominally to a Bishop are understood to be granted to the local Ordinary. S. O., 5 Sept. 1900. Under the name of Ordinaries also come their Officials, or Vicars, in spiritual matters, general.

By reason of the object, one is against law, which derogates from law, as the privilege of a private oratory; another is beyond law, by which mere grace beyond law is granted, e.g., the faculty of absolving from reserved cases. By reason of cause, one is remuneratory, which is granted on account of certain merits; another gracious, which is granted without preceding merits. A gracious privilege can be revoked even without cause; for it proceeds principally from the liberality of the one granting. A remuneratory one cannot be revoked without cause; for it is granted on account of merits. And if it is remuneratory from strict justice, namely on account of a price paid, on account of a burden imposed, it cannot be revoked without due compensation. By reason of mode, one privilege is granted motu proprio, another at the instance of the parties; one is granted first and in itself, another is granted after the likeness of a prior one. A privilege granted after the likeness of another is either given accessorily or equally principally. If accessorily, it follows the vicissitudes of the principal; whence, when that perishes, it perishes; when that grows or is diminished, it grows or is diminished. If equally principally, it subsists altogether independently of another, and does not follow its vicissitudes. - Suarez, l. 8, c. 4, n. 38; Lugo, Resp. Mor., l. 1, d. 19; L. l. 1, n. 197; App. 2, n. 5; Ferraris, Supplementum, v. Episcopus, n. 20; E. M.

n. 251.

What is a grace made and a grace to be made? Graces are distinguished into made and to be made. A grace is called made when he who grants it assents to the petition, if it is given at the prayers of the petitioner; or when the one making the grace simply grants it, if he bestows it motu proprio. Now when the Prince himself grants it in favor of him to whom he grants it, or as it is said, in gracious form, then the grace is regularly understood as made, as if the Supreme Pontiff grants to a religious order, or to an individual person, to Titius the priest, the faculty of absolving from reserved cases, of blessing rosaries and attaching indulgences to them, etc.

But when he grants it through another, or, as it is said, in commissory form, because it falls back into a mandate, then the grace is sometimes made, sometimes to be made. It is made if another is constituted a necessary executor; but it is to be made if another is constituted a voluntary executor. For in the first case another is merely the executor of the concession of the grace; in the second, another is the executor of the grace to be granted, namely the grace to be granted is remitted to him. And thus the grace is made if in the rescript, e.g., it is said to the Ordinary, "dispense," "absolve," even if some condition to be verified is added, even if there is added "according to your judgment and conscience," which words are placed only on account of the expression of reverence and fittingness. S. C. C., 6 Dec. 1845. But it is to be made if in the rescript it is said, "dispense," "absolve," if you shall have judged it expedient, or if the petitions are remitted to him with the necessary and opportune faculties. L. l. 1, App. 2, n. 13; Bizzarri, Collect., p. 666.

Hence a grace made does not expire by the death of the one granting, or by his ceasing from office; on the contrary, a grace to be made expires, namely while the matter remains entire, unless something else has been provided by law itself. - Reg. 12, Canc. Apost.; L. 8; l. 6, n. 559; Laymann, l. 1 de Privileg., c. 23, n. 18; Alois. Trombetta, Prax. Reg. circa Contr. rer. Eccl., c. 6.

n. 252.

Who can grant a privilege, and to whom? A privilege against law can be granted by those to whom the law is subject; and indeed only to subjects, and only to places which are contained by their power. The reason is that such a privilege is a derogation of law, and the legislator has no authority over non-subjects and outside his own territory. A privilege beyond law can be granted even to non-subjects, because it is not always and necessarily an act of jurisdiction, but an act of mere faculty and, as it were, a donation. Thus a Prince can grant to a stranger the privilege of hunting in his territory. Suarez, l. 8, c. 8, 10, 26.

n. 253.

Can travelers enjoy the privileges of places through which they pass, even if these are against common law? R. Affirmatively. It is established from general custom.

n. 254.

Can one delegated to grant a grace subdelegate? R. Negatively, speaking in itself; because this faculty is not included of itself in the concession of the superior, unless it is expressed. Except: 1. If someone were delegated by the Prince; yet in the case in which the delegation was made as through an office; but not if the person is chosen on account of his expertise, or if not jurisdiction is committed to him, but the mere execution of some cause, or some certain ministry, such as to preach, dispense, enjoin penances, excommunicate or absolve someone. C. 3, 6 and fin. de Offic. et pot. iud. deleg.; S. O., 1 June 1904. Wherefore Regulars, to whom some faculty of dispensing has been granted by the Supreme Pontiff for the easier and more fruitful exercise of the sacred ministry, cannot subdelegate it to others. In the exercise of jurisdiction it matters little what person is constituted judge, provided he is skilled. But in bare ministry, or execution, the industry, experience, and authority of the person are chosen. - 2. If someone were delegated to supply the whole office of another, or to a universality of causes, even if not by the Prince; hence vice-pastors, universally deputed in place of an absent or dead pastor, can subdelegate another, L. 1 § Ab eo ff. Quis a quo. Yet this subdelegation cannot be for the whole, but only for one or another cause, as is common with St. Thomas: "A vicar cannot communicate his whole power, but he can communicate a part." Quodl. 12, a. 31. But a curate administrator, constituted by the Bishop when the parish is vacant, by force of the disposition of the Council of Trent, s. 24, c. 18, can delegate another priest for all offices, unless the will of the Ordinary stands in the way. S. C. C., 9 May 1874, A. S. S., vol. 8, p. 134. What has been said about delegation made by the Prince holds even more of delegation made by the Pope. L. 193. From S. O., 14 Dec. 1898, the Bishop and the Superior General of a religious Order can subdelegate faculties delegated to them by the Apostolic See for a time, whether in a general way or for a particular case, unless this is prohibited or restricted in the faculties. Sanch., de Matr., l. 3, d. 31, n. 4; Ferraris, v. Delegare; L. l. 7, n. 224; E. M.

254 bis. Note: Jurisdiction is the power of ruling others; and it is of the internal and external forum; secular, ecclesiastical; ordinary by force of office, delegated from him who has ordinary jurisdiction. - It is besides contentious or voluntary. The former is exercised over a subject, concerning contentious causes, in judgments, and in one's own territory. The latter is exercised even over a non-subject, concerning other non-contentious business outside judgments, and in one's own territory and outside one's own territory.

n. 255.

Does delegation made absolutely expire by the death of the one delegating? Delegation made by law is after the manner of an ordinary faculty. Made by man, it expires by the death of the one delegating, and by his removal or cessation from office, in contentious jurisdiction, and if the matter is still entire; and in voluntary jurisdiction, if the grace is not made, but to be made; but it by no means expires if the delegation is by way of a grace made, however much the matter may still be entire. This happens: 1. When it is granted on account of public utility, as is the faculty of dispensing in vows, in matrimonial impediments, of absolving from censures, etc. 2. When it is granted on account of the private utility of another, e.g., Caius, Sempronius, etc., yet in such a way that a precept of executing the mandate is imposed on the commissary or delegate, as if he said: dispense with Titius, absolve, provide concerning the benefice, etc., if the petitions rest upon truth. For delegation of this sort contains a right perfectly granted, and therefore, once accepted, perseveres in its being, although the one granting dies, C. 1 § 1 de Filiis presbyt., and this delegation is to be interpreted broadly. On the contrary, it expires if given by way of a grace to be made, the matter however remaining entire; this happens when the grace is not perfectly granted, as occurs when it is given in favor of another private person, and the delegate is not commanded to execute it, but the power of granting the grace is given, or it is remitted to his judgment and will, as if he said: you can and may dispense, etc., if the things set forth are true. The matter remaining entire; for it is otherwise when the matter is not entire. And delegation of this sort is to be interpreted strictly. But the matter is said not to be entire if the delegate has begun to exercise the first act, as if he has begun to call the party to learn concerning the truth of the petitions. R. 16 de R. I. in 6; L. 192-194; cf. here 251, 283 and V. 2, 1045.

n. 256.

How are privileges to be interpreted? - Privileges are worth only as much as they sound. C. Per exemptionem 9 de Princ. in 6. Therefore they receive neither extensive nor restrictive declaration, but regularly only declarative. C. 27 de Praeb. in 6. Wherefore, when the faculty of absolving from papal reserved cases is granted, the faculty also of absolving from episcopal reserved cases is not included. L. l. 7, n. 98. When the faculty of choosing a confessor is granted, one can choose him as often as he wishes. Regularly, because if a privilege is granted in general words, in such a general concession there do not come those things which someone would not likely grant, R. 81 de R. I. in 6, i.e., things altogether extraordinary and unusual, Laymann on C. Sedes 15 de Rescript.; Reiff. on cited C. 81; nor those things which deserve special mention, or are excluded by custom or law. Therefore, when the faculty of absolving from reserved cases is granted, the faculty of absolving from specially reserved cases is not understood to be granted; when the faculty of absolving from reserved cases even specially is granted, the cases of the Constitution Sacramentum Poenitentiae are not comprehended.

Privileges beyond law are of broad interpretation, since they are benefits of the Prince. C. 16 de Verb. sign.; C. Quia circa 22 de Priv. Conversely, privileges against law are of strict interpretation. For it is expedient for the common good that laws enacted for it be preserved entire as far as can be done. C. Ut filii 1; C. Ad praesentiam 2 de Filiis presbyt. in 6. Nevertheless these too are of broad interpretation if the good of the commonwealth or of Religion is concerned, as are privileges granted to communities or to some pious cause, L. l. 1, App. 2, n. 8; if they have been granted motu proprio, C. Si motu 23 de Praeb. in 6; if otherwise they would be useless, C. 30 in fin. de Priv. Those privileges alone are always of strict interpretation which injure the right of a third party, since they are always understood with justice and the right of a third party preserved, C. Licet 12 de Off. iud. ord.; C. Super eo 15 de Off. iud. deleg.; C. Cum olim 12 de Priv. L. 5 ff.; Wirceburg., de Legib., c. 5, a. 3.

n. 257.

Are privileges against common right necessarily odious?

R. Negatively. For a favorable privilege is that which profits one, in such a way that it harms no one, e.g., the privilege of eating meats in Lent. But an odious one is that which, from the favor conceded to one, produces inconvenience for another, e.g., exemption from paying taxes, which burdens others. Hence it follows that privileges against right are not necessarily odious, unless they harm someone. But scarcely can any privilege be given which is truly and properly opposed to common right. For privilege differs from dispensation, which actually excuses from the obligation of law, and therefore is always of itself odious, and contradicts the law; for the subject, although actually exempted from it, nevertheless remains habitually bound. Privilege, on the contrary, proceeds rather parallel with the law; for privilege is some private law directing its subjects, and therefore permanently. Yet because it exempts from the common law, a private privilege against law is regularly of strict interpretation. Regularly, private; for one given motu proprio, or inserted in the Body of Law, or granted to a religious order or community, is altogether of broad interpretation, namely by reason of the common good. C. 40 de Off. et pot. iud. deleg.; C. 22 de Privil.; C. 4 de Praeb. in 6; R. I. 28 in 6. - L. l. 7; l. 3, n. 318, Claus. I.

n. 258.

When do privileges cease? - Privileges of themselves are perpetual; nevertheless they cease: 1. On the part of the one granting, by revocation, e.g., by a contrary law enacted which otherwise could not obtain its effect, or which contains the clause, "notwithstanding any privileges whatsoever"; or by command of the Prince himself granting the privilege, or of his successor, directly manifested to him to whom the privilege had been granted. But it is by no means extinguished by the death of the one granting, since it is a grace made. C. 15 de Rescr. in 6. 2. On the part of the privileged person, by renunciation accepted by the one granting. C. Si de terra 6 de Priv.; by non-use, or contrary use, if they injure the right of a third party, and this third party has legitimately prescribed against them. C. 15 de Privil.; cf. Engel, l. 5, t. 33, n. 19 ff.; Pirhing ib., n. 176; Reiffenst. there, n. 209.

But they by no means cease by abuse, unless regularly after at least a declaratory sentence of a judge, since it is a penalty, C. Ubi 7, Dist. 74; or unless the privilege was given to someone under this express condition, that if he abuses it, he loses the privilege by the law itself. 3. On the part of the privilege itself, granted under a condition, even a tacit one, or to a day, when the condition has been fulfilled and the day has elapsed.

C. 4 de Off. et pot. iud. deleg.; C. 5 de Rescr. in 6. But a personal privilege ceases by the death of the person; a real one, by the absolute and legitimate destruction of the thing or place, or when the dignity and office cease. - But when the final cause ceases, even forever, the privilege does not cease, since it is a kind of donation, Suarez, l. 8, c. 2, n. 5, unless it ceases contrarily, so that the privilege becomes illicit and unjust. Suarez, l. c., n. 6. Indeed, when the cause ceases merely negatively, the privilege does not therefore become a useless benefit; as, e.g., the privilege of a private oratory granted to a sick person or to a person established in dignity, when health has been recovered or dignity lost. L. 14-17; E. M.

n. 259.

Note: No one is held in itself to use a privilege, because each person can renounce his own right; nevertheless sometimes by accident the privileged person is obligated to the use of the privilege: 1. By reason of charity; hence he would sin who, having the faculty of absolving from reserved cases, would be unwilling to absolve a sinner placed in grave necessity. 2. By reason of the common good, namely when the privilege is not personal but real, attached to a place or dignity or state; thus a cleric cannot renounce the privilege of canon or of forum, nor a religious the privilege of exemption. - L. 3; l. 3, n. 318, Claus. XI, Dub. 3, n. 324; Ithur., Cas. 32, n. 20.

Vol. I, On Laws, IX. Privileges of Clerics, Bishops, Regulars

n. 260.

What are the privileges of clerics and churches? - 1. The privilege of forum, by which they are exempted from lay magistrates in civil and criminal matters. C. Nullus 2 de For. comp. This privilege belongs to clerics constituted in sacred orders, beneficiaries, and others, whether regular or secular, if nevertheless these latter, i.e., simple clerics, "wear the clerical habit and tonsure, serve some Church by command of the Bishop, or are engaged in some school or University by license of the Bishop, as on the way to receiving major orders." Trent, s. 23, c. 6 de R.; s. 25, c. 20 de R. Wherefore ecclesiastics enjoy exemption concerning their persons, and cannot be judged and punished by a lay court. They also enjoy the privilege of exemption from military service and other civil offices which are by no means fitting for a cleric. Pr. 32, Syll. - They likewise have exemption, says St. Alphonsus, 20, as regards their own goods, both ecclesiastical and acquired in whatever other way; whence in respect of these they are not held to pay any tax. - But various Concordats and legitimate customs must be attended to. Indeed, as regards taxes to be paid, these are paid everywhere; nor is any protest had against them. Wherefore this privilege at least de facto is not in force. - Schmalz., l. 2, t. 2, n. 80 ff.; Bened. XIV, de Syn., l. 12, c. 6, n. 5; L. 18 ff.; A. S. S., vol. 2, p. 128, 431, 584. Judges compelling laymen to drag ecclesiastical persons to their tribunal incur excommunication reserved in a special way to the Supreme Pontiff. C. Apostolicae Sedis. Cf. vol. 2, n. 1170.

The privilege of C. Odoardus 3 de Solut., namely that a cleric debtor not be condemned beyond that which he can give, and therefore with sustenance left to him, if because of poverty he cannot pay his debts, until he has come to a richer fortune. E. M.
The privilege of canon, namely of the Lateran Council, A.D. 1139, under Innocent II, by which those who strike clerics incur by the fact itself excommunication reserved to the Roman Pontiff, C. of Pius IX, Apostolicae Sedis de Censuris. And notorious strikers of clerics, so that the fact cannot be hidden by any tergiversation, nor excused by any suffrage, are excommunicates to be avoided. Extravag. of Martin V, Ad evitanda. From these privileges are despoiled clerics who have been really degraded; jesters, goliards, or buffoons; likewise those exercising the base trade of executioners, butchers, or taverners; married men not wearing clerical habit and tonsure, or, if unmarried, falling into the manner of laymen; if, having been admonished three times, they have not come to their senses within a suitable term, C. Clerici un. de Vit. et hon. cl. in 6; Clem. Dioecesanis 1 de Vit. et hon. cleric.; clerics involving themselves in tyranny or enormity, having laid aside the clerical habit, C. Perpendimus 23 de Sent. excomm.; bigamous clerics, who have taken two legitimate wives or a widow, C. Altercationis un. de Dig. in 6; C. Clerici de Cler. coniugat. in 6: cf. Trent, s. 23, c. 6 de R.; Schmalz., l. 5, t. 39, n. 218; clerics constituted in minor orders who lay aside the clerical habit, S. C. Imm., 25 Sept. 1860, to the Ordinaries of the Pontifical Domain; clerics ordained to minor orders, when the See is vacant, within a year from the day of vacancy, unless they have been constrained by occasion of an ecclesiastical benefice received or to be received. Trent, s. 7, c. 10 de R. L. 24; l. 6, n. 827; E. M.
To churches, public Oratories, the Episcopal Palace, Houses of Regulars, and Hospitals in which there is a public Chapel, immunity belongs as regards the asylum of delinquents, excepting the cases comprehended in the Bulls of Gregory XIV, Cum alias, and Benedict XIV, Ex quo divina. All delinquents, provided they are Christians, although heretics, or interdicted, or enclosed in prison, who, having broken prisons, have fled to the aforesaid sacred places, enjoy this immunity, except however the cases excepted in law. Public robbers, ravagers of fields, homicides, heretics and rebels against the person of the Prince, those falsifying coins, etc., are excepted. But just as ecclesiastical superiors can extract their own subjects from a Church, so also, if need be, they can grant the same license of extracting to the secular court. Here also various Concordats and various customs of places must be attended to. L. 25 ff.; Schmalzgr., l. 3, t. 49, n. 88 ff.; E. M.

260 bis. What are the privileges of Cardinals? - They are the following: 1. Of hearing confessions everywhere on earth, even of religious of both sexes, and of absolving from all sins and censures, except only censures reserved in the most special manner to the Apostolic See, and those which are annexed to the revelation of the secret of the Holy Office. 2. Of choosing for themselves and their familiars a Priest for receiving confessions, who, if he lacks jurisdiction, obtains it by the law itself, even as regards sins and censures from which the same Cardinals can absolve. 3. Of celebrating, or of permitting others to celebrate before them, Mass on Thursday of Holy Week and three Masses on the night of the Nativity of the Lord. 5. Of celebrating Mass in any private chapel without prejudice to one using an indult. 5. Of enjoying a personal privileged altar daily; likewise a portable altar, in any decent place, according to their prudent judgment, even at sea, with due cautions observed. 6. Of gaining in their own chapels indulgences for the acquisition of which the visitation of some church or public shrine of the city or place in which the Cardinals are actually staying is prescribed; their familiars also can enjoy this privilege. 7. Of blessing everywhere, by the sign of the cross alone, with all indulgences customarily granted by the Holy See, rosaries and other prayer chaplets, crosses, medals, statues, scapulars approved by the Apostolic See, and of imposing these, without the burden of inscription. 8. Under one blessing, of erecting in churches and even private oratories in which Mass can be celebrated, and in other pious places, Stations of the Way of the Cross with all indulgences which have been imparted to those performing an exercise of this sort; and also of blessing for the faithful, who by reason of infirmity or another legitimate impediment cannot visit the sacred Stations of the Way of the Cross, images of the Crucified with the application of all indulgences annexed by the Apostolic See to the devout exercise of the same Way of the Cross.

Of wearing, in the manner of Bishops, a cross before the breast even above the mozzetta, and of using mitre and pastoral staff. 10. Of blessing the people everywhere in the manner of Bishops, but in the City only in churches, pious places, and assemblies of the faithful. 11. Of performing pontificals with throne and baldachin in all churches, the Ordinary having been forewarned if the church is a cathedral; but in the City they do not have the right of throne except in the church of their title. 12. Of enjoying the honors customarily paid to local Ordinaries wherever they betake themselves. 13. Of preceding all Prelates, even Patriarchs, indeed the Pontifical Legates themselves, unless the Legate is a Cardinal residing in his own territory; but a Cardinal Legate a latere precedes all others. 14. Of granting an indulgence of two hundred days in places or institutes and for persons of their jurisdiction or protection; likewise in other places, but to be gained only by those present, each time. 15. Of performing consecrations and blessings of churches, altars, sacred furnishings, abbots, or other similar things, except the consecration of sacred oils, everywhere, with those things observed which must be observed. From the Audience of His Holiness, on the 20th day of December, A.D. 1911, Our Most Holy Lord Pope Pius X graciously deigned to grant that the Cardinals of the Holy Roman Church may use the privileges which precede, even before the promulgation of the Code. - PETER Cardinal GASPARRI.

n. 261.

What are the principal privileges of Bishops? - As regards preserving their dignity. If Bishops commit a crime which is forbidden under penalty of suspension or interdict, they do not incur these censures unless they have also been laid upon them by name. Their causes are to be terminated through the Supreme Pontiff. Trent, s. 13, c. 8 de R. But those who injure Bishops incur excommunication reserved in a special way to the Roman Pontiff. C. Apostolicae Sedis de censuris. - From the same Constitution Apostolicae Sedis, those violating an interdict and excommunication imposed by the Ordinary are punished with interdict from entrance into a church. They can wear a small skullcap of violet color, even in sacred offices and while they celebrate Mass, but not from the Preface to Communion, S. C. Cons., 1 May 1910. From the day of election they can wear a small skullcap and biretta of violet color.

n. 262.

As regards Mass. - "A Bishop can dispense for celebrating on another altar, or in a church not designated by the founder, when another just cause is present." L. 60; l. 6, n. 329. - "He can dispense for just causes both with himself and with others for celebrating after midday." L. 61; l. 6, n. 344. - They can celebrate not only in their own episcopal house, but also in lay houses, in which on occasion of visitation or a journey they are received with hospitality, and when, in cases permitted by law, or by special license of the Apostolic See, being absent from the house of their own habitation, they therefore make a stay in another's house after the manner of a similar habitation.

But not only can they themselves, wherever they dwell, celebrate even on a portable altar, but they can also permit another Mass for their own convenience; and the faithful hearing either one satisfy the precept. S. R. C., 22 Aug. 1818; 8 June 1896; L. 63; l. 6, n. 358; Bened. XIV, de Sacr. miss., l. 3, c. 6, n. 6. - They can grant the faculty of celebrating outside a church in a non-sacred place, if grave and proportionate causes are present; and in private houses, from just and reasonable causes, but by way of an act and in a decent place. S. C. de Sacram., 20 Dec. 1912; L. 64; l. 6, n. 344, 359; Lucidi, de Visit. Sacror. Limin., vol. 1, p. 97, n. 108. - When Bishops have died, Masses can be celebrated through the whole morning in the larger hall of their own residence, where the body lies exposed. S. R. C., 3 Apr. 1894; Ferraris, Supplementum, v. Missa de Requie, n. 7; E. M.

n. 263.

As regards baptism, Confession, Communion. They can permit that, besides when danger of death is imminent or necessity urgent, baptism be administered to infants at home from a just and reasonable cause. S. C. de Sacram., 20 Dec. 1912. - They can choose for themselves a confessor outside the diocese, provided he is their subject, and they can take him with them to different places; but if he is not a subject he must be approved by his own Ordinary. - They can permit that the Holy Eucharist be carried privately to the sick from the church to the home, or without the prescriptions of the Ritual being observed. S. C. de Sacram., 20 Dec. 1912. - L. 65; l. 6, n. 565.

n. 264.

As regards censures and irregularities. - Bishops can, by themselves or by another specially deputed, absolve subjects from hidden papal cases, except those which are reserved in a special way to the Supreme Pontiff. From the Declaration of S. O., 17 June 1866 and 4 Apr. 1871, there is also excepted the case of a person of whatever sex falsely denouncing a priest concerning the crime of solicitation in confession. They can likewise absolve those who strike a cleric lightly; and, if these are living collegially, although the striking was grave, but not if it was enormous. From the same censure they can also absolve those who are impeded from going to Rome. Cf. vol. 2, n. 1182. Various cases, however, are reserved to them by the law itself. C. Apost. Sedis; Decr. S. C. C. concerning the trafficking of Masses, etc. Cf. vol. 2, de Censuris.

They can besides dispense in all irregularities, and absolve from all suspensions incurred on account of hidden delict, except voluntary homicide, and other matters brought to the contentious forum. Trent, s. 24, c. Liceat. Probably they can dispense also in doubtful irregularities from defect. Moreover they can dispense in non-hidden irregularities from defect of birth for minor orders and simple benefices. As regards inabilities enjoined by Pontiffs as penalty, whether they can dispense is disputed, and the matter is very doubtful. Concerning homicide, "the common opinion is that the Bishop can dispense when danger of soul is imminent; or another most grave cause, and it would be difficult to have recourse to the Pontiff, etc." L. 51, 29, 35, 46, 47, 49, 52, 53; l. 3, n. 397; l. 6, n. 593, 705; l. 7, n. 353, 392, 394; E. M.

n. 265.

As regards orders. - A Bishop can dispense in the interstices prescribed by Trent as regards the ordination of clerics, as is established in the same Trent. S. 23, c. 11, 13 de R.; L. 59; l. 6, n. 775, 780, 789. Dispensation of interstices pertains to the Bishop also as regards regulars. - Ferraris, Supplementum, v. Episcopus, n. 16.

n. 266.

As regards marriage. They can dispense: In publications of banns, and in impeding impediments, excepting the vow of perpetual chastity, the vow of entering Religion, betrothals, the impediment of disparity of worship between Catholics and heretics, reasonable dissent of parents, etc. Cf. vol. 2, n. 991. In impediments supervening after marriage has been contracted, in order to petitioning the debt; e.g., if they have contracted affinity for this reason, that either one had carnal commerce with blood relatives of the other; or if one has vowed chastity. Indeed the Bishop can also dispense a spouse from a vow of perpetual chastity which he emitted before marriage, so that he may exercise matrimonial rights. - In doubtful diriment impediments. By accident, in certain diriment impediments, both before and after marriage has been contracted, when recourse to the Pope is very difficult and there is danger in delay, or where danger of scandal, infamy, incontinence, etc., is imminent; but especially in the article of death. Cf. vol. 2, n. 1044.

L. 54-58; l. 6, n. 613, 1122; E. M. Through quinquennial faculties Bishops have the faculty of absolving from many cases reserved to the Holy See, of dispensing in many impediments of marriage, and also of habitually subdelegating to pastors the faculty of dispensing over a hidden impediment of affinity from illicit intercourse in marriages to be contracted, when all things are prepared for the wedding.

n. 267.

As regards enclosure. "Bishops are delegates of the Apostolic See for protecting the enclosure of monasteries of nuns, even exempt ones, and of those which are subject to regulars." L. 66, 67. And as regards Institutes of simple vows, it also belongs to the Bishop to care that enclosure be rightly observed, and to restrain whatever fault creeps into it. Leo XIII, C. Conditae a Christo, VI Id. Dec. 1900.

n. 268.

As regards other ecclesiastical laws. - Bishops can dispense for particular cases and persons, and for a brief time, as has already been said at n. 243. For particular cases and persons; for by common law Bishops do not have the faculty of dispensing with the whole community. But whether a Bishop can dispense in canonical statutes not expressly reserved, St. Liguori judged that the negative opinion must altogether be held, l. 1, n. 191. Yet the same Holy Doctor, in the work H. A., tr. 2, c. 6, n. 58, says that the affirmative opinion is sufficiently probable. And in the Appendix de Privil., 71, he has these words: "Probably the Bishop can dispense in all things in which dispensation is not specially reserved to the Pontiff." And it can be admitted, if the matter is of lesser moment and frequently recurs. Cf. L. de Priv., n. 53. - S. Th. 1. 2. q. 97, a. 4, ad 3; Gennari, Cons., vol. 1, c. 97, n. 6; cf. here n. 1626.

n. 269.

As regards vows and oaths. - Bishops can dispense: 1. In all simple private vows, except the five reserved to the Pope, namely of perpetual chastity, of Religion, and of pilgrimages to Jerusalem, to the thresholds of the Apostles, and to St. James of Compostella. - 2. In all oaths, if you except oaths accepted by a third party, which were not extorted by fear or fraud. - Hence Bishops cannot dispense in vows, whether perpetual or temporary, of Institutes of simple vows, after the Holy See has commended them at least by Decree of Praise. C. cited Conditae a Christo.

269 bis. Are there also privileges of other Prelates? - The privileges of Protonotaries are many. Four orders of these are had: Apostolic Protonotaries of the Number of Participants, seven, who exclusively constitute the College; supernumerary Apostolic Protonotaries; Apostolic Protonotaries after the likeness of Participants; titular, or honorary, Apostolic Protonotaries outside the City. The privileges of all these are contained in the Motu Proprio of Pius X, 21 Feb. 1905, concerning Apostolic Protonotaries, concerning Urban Prelates, concerning dignities, canons, and others who enjoy some privileges proper to Prelates. Cf. Declar. S. R. C., 14 Mar. 1906, n. 4182. There are also privileges of the Common Chaplains of the Pontifical Chapel, S. R. C., 16 Mar. 1907, Acta S. Sed., vol. 40, p. 311; of the Loreto Chaplains, S. R. C., 11 Dec. 1912; of Apostolic Missionaries, Decr. S. O., 21 Apr. 1909.

269 ter. Note: 1. A canon duly enrolled in a Chapter which collegially enjoys privileges or insignia and rights pertaining to Apostolic Protonotaries, either supernumerary or after the likeness of participants, acquires no right by which he is numbered by the Supreme Pontiff among Domestic Prelates with the expedition of a Brief. S. R. C., 24 May 1911. - 2. To perform sacred rites in pontifical rite belongs to Bishops. From privilege this is also conceded to Protonotaries after the likeness of Participants, and to other inferior Prelates, but with more moderate adornment. The Constitution of Benedict XIV, In throno iustitiae, 28 Feb. 1752, establishes the manner of using the Indult of Pontificals. - 3. Since precedence is a sign of honor, it is to be deduced from the grade of dignity and from the power of jurisdiction and dominion. A collegiate church has precedence over pastors and a college of pastors. S. R. E., 23 Mar. 1619, n. 372; 5 Feb. 1639, n. 664; 6 Apr. 1647, n. 908. Collectan. S. R. C., Ind. v. Praecedentia.

n. 270.

What are the principal privileges of Regulars? - As regards communication of privileges. All regular orders communicate in the privileges of other orders, whether mendicant or not. L. l. 4, n. 60. "These mendicant religions communicate in the privileges of the other religions, or congregations, or monastic or non-monastic colleges... And this holds even if in a privilege granted to another religion or congregation there is a clause that it is not to be communicated... Both lay brothers, for they themselves are truly religious, and novices enjoy privileges of this sort... religious promoted to the episcopate also enjoy them, provided there is not question of things by which, if Bishops used them, some prejudice would come to religion, as would be dwelling in a monastery, giving a vote." L. 9. - Male tertiaries who live collegially enjoy the privileges of Orders. S. C. EE. et RR., 20 Dec. 1616; Bizzarri, Collect., 1885, p. 569 ff. Nuns enjoy the same privileges (understand favorable ones) of which they are capable, as religious of the same order. The reason is that since they themselves live under the same rule, they are part of the order, and therefore deservedly ought to enjoy the privileges of the order. Hence an abbess can dispense in fasts, office, etc., according to the privileges granted to the prelates of her order; because, although she herself cannot dispense by herself on account of defect of spiritual authority, she can nevertheless do this by commission of the prelate, which is presumed to have been made to her as soon as she was elected abbess. L. 10; l. 4, n. 60, 63. As regards women of the third order and their privileges, cf. Collectan. S. C. de P. F., n. 445; Benedict XIV, Not. 29, 105, n. 59 ff. - As regards secular Franciscan tertiaries, cf. Constitution of Leo XIII in Ferraris, Supplementum, v. S. Franciscus Assis., etc.

More recent Institutes of simple vows are excluded from this participation in privileges. Nevertheless the Carmelite Sisters of France obtained it by special Decree of S. C. EE. et RR., 23 Mar. 1869, so that they participate in the spiritual graces of the Carmelites of solemn vows, exemption excluded. Ferraris, Supplementum, v. Carmelitae, n. 9. Privileges granted to some place or person, not as to a particular person, but as to a member of a community, are understood to be granted also to other places and religious of the same dignity and grade, both of that order and of others which have communication, namely when the same or a similar reason applies. L. 11. Privileges are not communicated: 1. When they are odious or contrary to proper statutes, so that they prejudice the good or common observance of religion. 2. When they are granted to some private person, or to some congregation, but for a determined time, or through particular Briefs, or on account of a particular reason which has no place in the others, or concerning an exorbitant thing which is usually granted with difficulty and is worthy of special commemoration; or, from the General Decree of S. C. R., 20 Mar. 1706, concerning those things which regard Masses and offices. 3. Likewise the privilege of receiving sacred orders from any Bishop is not communicated. Benedict XIV, C. Impositi nobis, 27 Feb. 1747, par. Quod vero. Privileges granted to religious families by Canon Law or by the Holy See are understood to be granted in such a way that they do not prejudice the legitimate power of superiors. Wherefore the same Prelates can from a just cause take away, at least as to liceity, or limit for subjects the use of privileges. L. 6; l. 4, n. 64; E. M.

…and 49 more passages — all of them are listed on the topic page.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 63 passages (filed under the subtopics)

15. On the Nature of Law · 20. On Dispensation of Law

15. On the Nature of Law

A bishop, in a diocesan synod, reserved to himself for the future some sins and some censures. After the bishop had died, the chapter, the see being vacant, ordered this reservation of cases to be printed, so that it might come to the knowledge of all confessors. It placed this title on the folio, edited and printed: Cases and Censures in the Synod of N. Diocese, held in the year 1637. It was doubted whether that reservation had sufficient force.

Q. 1. What is law? 2. What as to the case?

R. To the first, cf. I. M. 166 seqq. To the second: Cardinal De Lugo, Resp. Mor., l. 1, d. 21, thus resolved this case: "I inclined more to the opinion denying the value of that reservation.... I am moved..., namely because the chapter did not seem to use its own authority for promulgating that reservation and inducing its obligation. For it did not signify that it reserved the absolution of those cases, nor did it say that it supplied the authority which, the bishop having died before promulgation, he did not have; but it only caused those cases to be printed as having been reserved by the bishop in diocesan synod, the proper authority of the chapter, the see being vacant, not being interposed, but only the diocesan synod with the bishop being commemorated. Therefore, since the authority of the bishop had already expired, the obligation of law could not begin when the legislator can no longer command and oblige. For I suppose that before promulgation a law is not a law, except inchoatively; nor is promulgation merely a condition or application of a law already preexisting, but rather it is a constitutive part of the law itself in the character of law.... And whatever may be the case concerning this, nevertheless it must be admitted that promulgation, required for the obligation of law, is not promulgation through private knowledge which individual subjects may have about a law already made, even if the greater part of the subjects had that knowledge; but it ought to be public knowledge, that is, arising from a solemn act by which, at the command of the Legislator, the law is published, as the doctors commonly note. But the reason from what has been said is that the act of commanding, such as law is, includes a speech by which the Prince or Legislator commands and manifests his will to the subjects, which happens when the law is promulgated. But promulgation cannot be the speech of the Prince except by command and authority of the Prince. Therefore, since the dead bishop can no longer speak to the subjects, or command, it follows that promulgation made by the chapter alone cannot be made in the name of the bishop, nor receive authority from the same bishop; therefore that promulgation is not sufficient for inducing obligation, since through that promulgation no superior speaks and commands. Nor does the dead bishop, who now can neither speak nor command. Nor does the chapter, which, although it could command, nevertheless does not signify that it commands, nor interposes its own authority, but that of the bishop alone, now dead. Therefore the promulgation required for obliging was lacking, namely promulgation made by the Superior himself, commanding through that same promulgation."

"Caius, a counselor of great name and no less wealthy, had understood that in the last assembly it had been decreed that the value both of ducats and of grain would be diminished, while on the contrary the value of another certain silver coin would be raised. Wherefore, thinking that he should use the opportunity of time and of this private knowledge, one or two days before the aforesaid Constitution was solemnly promulgated, he asked from a certain Jew a notable sum of that species of silver coin, in place of which he gave him ducats and grain. After some days, the promulgation of the aforesaid Constitution having already been made, he came to the confessor, having ingenuously confessed that he had notably deceived a certain Jew, and asked to know whether on account of this he had sinned, or had incurred an obligation of restoring."

Q. 1. Is promulgation of a law necessary for its obligation? 2. What will the confessor answer to Caius asking?

R. To the first, affirmatively. For promulgation is the act by which a law is exhibited and shown to the subjects. Whence it is also clear that, although promulgation is necessary for the obligation of the law, it nevertheless does not pertain to its essence. For the essence of law consists in this, that it is a rule of morals; and promulgation is not regulating, but only showing the rule. Cf. I. M. 166, 167.

To the second: "Caius, by force of this deed, at least speaking in itself, did not sin, nor did he contract any obligation of restoring.... The reason is that, since, at the time of this exchange made, the ducats and grain were truly in their former value, it is certainly clear that Caius, by giving gold and grain for silver, repaid an equivalent. Granted even that he is supposed to have known that the grain would at once be of lesser value after the promulgation, nevertheless because this promulgation had not yet happened, nor was Caius otherwise obliged to intimate it to the Jew, hence he inflicted on him no injury at all, but wisely used his right in order to avoid the damage which he foresaw was threatening him from retention of the ducats and grain.

"Nevertheless I said that Caius, in this deed, speaking in itself, did not sin. For from the manner of accusing, he seems to have insinuated quite clearly that at least from erroneous conscience he sinned gravely: for deception of one's neighbor in grave matter is not free from grave fault. Therefore since Caius thought that he was deceiving, indeed willed gravely to deceive, the Jew, it seems practically certain that he sinned gravely, although he is no longer held to rescind the contract, nor to restore anything to the Jew, because, according to what was just said, the contract was truly just." Elbel 257, 258; G. 89, 90. Cf. I. M. 1147.

Epipodius the theologian and Thiphonius the canonist, conferring with each other, sharply dispute about the promulgation of pontifical law. The former contends that it is enough if its promulgation is made at Rome, or in the principal city of the whole world, so that it has force for obliging all the faithful. But the latter contends that promulgation must be made in the individual dioceses, to manifest knowledge of it to all of them. For Rome is very distant from the greater part of the dioceses of the whole world.

Q. 1. How and where must laws be promulgated? 2. In order that pontifical laws oblige, must they be promulgated not only at Rome, but also in each diocese by its own bishop?

R. To the first, cf. I. M. 168, 169. To the second: first, negatively, if it is a question of Pontifical Constitutions concerning a matter of faith and morals. The reason is that they are not new laws, but mere declarations of natural and divine law, already sufficiently promulgated before.

Secondly, affirmatively, if it is a question of disciplinary laws, and promulgation of this sort is established in the law itself, as in the Tridentine Decree, session 24, ch. 1, De Ref., concerning the nullity of clandestine marriage. The reason is that the mode of promulgation depends altogether on the will of the legislator.

Thirdly, if it is a question of the same laws, and nothing is had in the law concerning a special promulgation to be made, "the first opinion affirms, and several grave authors hold this.... But still, according to this first opinion, Bulls inserted in the Bullarium must be excepted, because these are already the Body of laws; and in this all agree, as Cardinal Petra testifies.... But the second opinion, very common and more probable, denies it.... When the Apostolic See wishes some law not to oblige except after publication made in the provinces, it expresses this.... When the Pontiff establishes that his Bulls be published only at Rome, it is by no means likely that he intends to oblige not the other provinces, but only the Roman province. When the Pope wishes to bind only Romans, he is accustomed to issue particular Edicts.... But making statutes for the whole Church, and promulgating them solemnly with obligatory clauses, he is without doubt presumed to wish to oblige all the faithful as soon as knowledge has reached them.... This is clearly deduced from c. 1, Ad haec de Postulat. Praelat..... The same is sufficiently inferred from c. Quia cunctis 1, § Nec obstaret, De Concess. praeb. in the Sixth.... But what gives more force to our opinion are two clauses.... One clause speaks thus: 'But in order that the present letters may more easily come to the knowledge of all, and that no one may be able to allege ignorance of them, we will that they be affixed to the doors, etc., and published, and that, thus published, they bind and affect all and each whom they concern, just as if they had been personally intimated to each one of them.' The other says: 'But we will that to transumpts of the present letters, even printed ones, subscribed by the hand of some public Notary, and fortified by the seal of a person constituted in ecclesiastical dignity, the very same observance everywhere be applied, both in judgment and outside it, as if they had been exhibited or shown to each one.' But these clauses show too plainly that the mind of the Pontiff is to wish to bind all the faithful to statutes of this sort independently of their publication in individual Provinces. And Sylvius and Roncaglia, although they admit the first opinion as probable, nevertheless hold as certain that all Bulls promulgated at Rome with the aforesaid clauses oblige in themselves without another promulgation. Moreover, Roncaglia rightly says that from the reported words of such clauses a firm argument can be adduced for the probability of the first opinion with respect to those Bulls where the aforesaid clauses are lacking: for nothing in laws is to be supposed placed in vain, and those clauses would be altogether superfluous if all Bulls, published at Rome even without such clauses, obliged before any other publication in the Provinces.... Furthermore Suarez and others probably say that pontifical laws which invalidate some contract valid by its own nature... or which take away jurisdiction, for example, in the sacrament of penance, concerning these we can benignly interpret the mind of the Pontiff to be that he does not wish them to have effect unless after they have been promulgated in the dioceses; otherwise they would redound to the detriment of many, who would be invincibly ignorant of them." Lig. l. 1, n. 96.

This latter opinion seems altogether truer from the fact that a response was given by the Sacred Penitentiary, 8 November 1821, that the Constitution Ecclesiae of Pius VII, and on 15 June 1870, the Constitution Apostolicae Sedis of Pius IX, oblige on the day after its publication made at Rome. It is confirmed from the very recent Constitution Officiorum of Leo XIII concerning the prohibition and censure of books, which the Supreme Pontiff wills to be inviolably observed by all, and which indeed is to be observed by all after the promulgation already made at Rome.

Fourthly: "Not only Pontifical Constitutions which have been solemnly promulgated induce the obligation of law, but also all others which, from the use and consent of the universal Church, for several centuries now are held as sufficiently promulgated and authentic." St. Alphonsus l. 1, n. 105, 106; Struggl. tr. 3, q. 1, n. 21, 22.

Fifthly: "It is special in censures that, for their obligation, it is required that they be published not only at Rome, but also through the prelates of places. C. Cum infirmitas 13, De Poenit. et Remiss." Thus Engel, l. 5, tr. 39, n. 122. But the disposition which is contained in the aforesaid chapter can be held as a special disposition for a special matter. For it is a question of physicians called to the sick, who must before all things induce the sick person to confession. Moreover in the Constitution of Pius XI, Apostolicae Sedis, IV Id. Oct. 1869, by which censures latae sententiae presently in force are established, this special disposition is not had, and that Constitution is in force everywhere. - G. 92 seqq.; Elbel 254, 256.

Flavius, a cleric, on account of grave negligence committed in the care of souls, having been denounced to his Ordinary and found culpable, was condemned to perform spiritual exercises for eight days in a certain monastery, and to give fifty lire to the same monastery by way of alms. This latter Flavius in no way performed. As for the former, during that entire eight days, he did not make even one meditation, saying that mental prayer is a merely internal act, which cannot be commanded by a human superior. Hence he neglected all the other spiritual exercises, content only to dwell in the monastery for eight days, which he spent reading profane books and newspapers.

Q. 1. Can merely internal acts be the object of law and precept? 2. What concerning Flavius?

R. To the first, cf. I. M. 117. To the second: the bishop altogether legitimately condemned Flavius to the aforesaid penance, the proportionate gravity of the fault being supposed. For although the bishop in words, in his sentence or mandate, did not express that he wished to oblige Flavius gravely, nevertheless by the fact he must be judged sufficiently to have expressed it, from this, that any superior, speaking regularly, must be presumed to have wished to oblige according to the capacity of the matter. Hence, Flavius, by omitting to give to the monastery the alms of fifty lire, sinned gravely; because when matter commanded by a superior is divisible into several parts, and those parts in themselves constitute grave matter, the neglect of any part is grave sin. - But besides, Flavius sinned gravely because of the omitted spiritual exercises, which also themselves constitute grave matter. Nor indeed does the reason of Flavius avail anything in the case; because spiritual exercises do not consist in merely internal acts, or in mental prayer alone, but in several acts at once internal and external: in withdrawal from all secular business and profane actions; in pious readings; in conferences with the spiritual Father, or confessor, or director of the exercises; in due preparation for meditation, after first hearing or reading over the various points of meditations; in meditations and examinations of conscience, on bent knees at least for some space of time; in vocal recitation of prayers; in visits to the Most Holy Sacrament, etc. All these, as is clear, are mixed acts, which without doubt can be commanded by human authority. - Elbel 339-341; G. 95, 96; Lugo, Resp. Mor., l. 6, d. 7.

20. On Dispensation of Law

Leopoldus sought from his confessor a dispensation from the law of abstinence and fasting, both because he was already fifty-eight years old, and because he suffered weakness of the stomach, needing more abundant food, and experienced nausea at fasting foods. Hence not infrequently, on account of fasting, he suffered in the head, and on account of abstinence he could not take sleep at night. The confessor refused to give the dispensation, saying that he did not have such power. Hence Leopoldus went to the parish priest, seeking from him the same dispensation; but the parish priest granted it only for the days of fast already imminent in the Ember days, saying that he could not dispense except only in particular cases. Wherefore Leopoldus sought an indefinite dispensation from the bishop, who denied it. Then Leopoldus wrote to Rome, seeking a perpetual dispensation, and affirming as the cause in the supplicatory libellus both advanced age and infirmity, passing over in silence the denial of the bishop. The dispensation having been obtained, after a year Leopoldus is so well that he anxiously doubts whether he can licitly use it.

Q. 1. Who can dispense in laws? 2. What as to the case of Leopoldus?

R. To the first, cf. I. M. 241. To the second: the confessor of Leopoldus responded rightly that he could not dispense. A confessor, unless he has a special faculty delegated to him in this matter, cannot dispense either in the external forum or in the internal forum. For an inferior cannot dispense in the law of a superior. Yet where a cause is present which of itself excuses Leopoldus from abstinence and fasting, for example, infirmity, or another grave detriment, then the confessor can in a particular case declare that the law does not oblige. And in such a case Leopoldus by no means ought necessarily to seek a dispensation, although he can easily do it, since the law then does not urge. And this also holds in doubt whether the case needs dispensation, if he himself can form his conscience for himself; for otherwise then properly there has place the office of the confessor, that he declare the law, in the case, not to urge. But this was not in reality the case of Leopoldus, who was seeking a dispensation absolutely and perpetually. The parish priest also responded rightly. For the parish priest can by custom dispense in cases of this sort, which occur frequently, even if recourse to the bishop were easy. But a sufficient cause of dispensation was not lacking for Leopoldus, and it could easily still be increased, in the aforesaid particular case, on account of almost three continuous days of abstinence and fasting. The bishop also rightly denied an unlimited dispensation, since he could not give it.

But, the dispensation having been obtained from the Holy See, Leopoldus can indeed licitly use it. For although he did not manifest the denial of the bishop, as also the denial of the confessor and parish priest, nevertheless the dispensation is altogether valid. For the Supreme Pontiff uses his power absolutely, and is judged to dispense absolutely, unless something else is explicitly expressed in the rescript. In conceding a dispensation, the will of the superior is not ruled by the will of the inferior, but by the gravity of the motive cause. And furthermore this is prescribed by no law, if some peculiar cases are excepted. Cf. I. M. v. 2, n. 1041. Nor indeed was that threefold denial to be manifested, since neither the confessor, nor the parish priest, nor the bishop could concede an unlimited and perpetual dispensation.

But the twofold cause set forth by Leopoldus in the supplicatory libellus was indeed sufficient for obtaining the dispensation licitly and validly, as he in reality obtained it. Concerning sufficiently advanced age, there is indeed no difficulty. But as regards infirmity, although, strictly speaking, Leopoldus is not infirm, nevertheless nausea at fasting foods, weakness of the stomach, and difficulty of sleep can well be called infirmity; since those things certainly do not pertain to bodily health and firmness of strength. This also must be added, that in doubt concerning the value of a dispensation obtained, generally there must be a presumption for the value of the act, for which possession already stands.

But the fact that Leopoldus is well after a year does not for that reason seem to make the dispensation cease. For very probably Leopoldus was well because he constantly used foods suitable to his stomach, and in due quantity; whence perhaps Leopoldus would easily fall again into the same inconveniences if he departed from a manner of life of this sort. Moreover, with attention to his approaching old age and natural temperament, there is truly a prudent fear of relapse into the aforesaid inconveniences from the observance of fasting and abstinence. Whence the final motive cause of the dispensation has not in reality totally ceased. Finally, the dispensation was given also on account of sufficiently advanced age, and this cause of itself is perpetual. Therefore the dispensation is to be judged not conditioned, but absolute and perpetual, which does not cease, although perhaps by accident the cause ceases. But the dispensation would without doubt have been given conditionally if in it the clause had been added: on the advice of both physician and confessor; since then the confessor and the physician would have had to declare the state of infirmity; and therefore, if the infirm man had entirely recovered health, there would no longer be place for the dispensation. Cf. I. M. 1577, 1615 seqq.; G. 109-114, 120; Elbel 450-452.

Before the admission of a candidate to solemn vows, the superior of religious, the three-year period of simple vows having been completed, must seek the consultive vote of the chapter. Moreover, concerning the three-year period not yet completed, but shortened by apostolic dispensation, it is asked:

Whether, on account of the shortening of time by apostolic dispensation, the consultive vote of the chapter is transmuted into a decisive one?

Whether the superior must seek the vote of the chapter before supplication is made for the grace, or after the grace has already been obtained?

R. To the first: no thing can operate beyond its own nature. Moreover, the dispensation of law of which there is question in the proposed doubts is nothing else than, in a special case, the relaxation of law. Therefore it stops within the limits of the law dispensed, and is not extended beyond it. Furthermore, by the very fact that a dispensation derogates from law, speaking in itself, it has a strict interpretation, and therefore also by this special reason it stops within the limits of the law of which it is the dispensation, without progressing further.

Hence the dispensation of one law does not include the dispensation of another law, unless perhaps without the other dispensation it would be useless; for then this also is understood to have been tacitly conceded. L. 3, § 3, de Servit. praed. rust.; C. 5, de Off. et pot. iud. Del. But the transmutation of the consultive vote of the chapter into a decisive one is beyond the dispensation of the required three-year period, and indeed would be a new dispensation of another law, which in no way can be understood as virtually included in the dispensation of the three-year period of profession of simple vows required before solemn vows. But if that dispensation has not yet been sought and conceded, but would still have to be sought and conceded, how indeed could a transmutation of the consultive vote of the chapter into a decisive one be had for that reason? For this there would be need of a special faculty of the Holy See. For the chapter would acquire a new power, of which it is altogether destitute. - Wherefore to the first doubt it seems that it must be answered: Negatively.

To the second: from common law, for admission to solemn vows after the completed three-year period of simple vows, the conventual chapter must be heard only for the instruction of the mind of the superiors. S. C. super. St. RR., 7 Feb. 1862.

A fortiori, therefore, it seems that the conventual chapter must be heard before supplication is made for obtaining the grace of shortening the time before solemn vows. For first, the very fact of making supplication for such a grace is in reality virtually to admit to the profession of solemn vows. Furthermore, if that vote of the conventual chapter has been judged necessary by the Holy See for the instruction of superiors, when admission to solemn vows is made after the ordinary time, much more will a vote of this sort indeed be necessary for instruction if that ordinary time is shortened. But, the apostolic grace of shortening the time having been obtained, that vote is now useless. And certainly the execution of the apostolic grace already obtained could not impede it; since, once it has been obtained, it cannot have such authority. Moreover, a simple instruction would be sought altogether incongruously after the grace had been obtained, if, once that instruction had been had, the case can be supposed that the superior would no longer admit to solemn vows. For he would have sought from the Holy See a dispensation for one unworthy, and would have deceived the Holy See, although in good faith. For the Holy See, giving that dispensation, evidently supposes that nothing else obstructs the profession of solemn vows except the prescribed time not yet elapsed, and that the candidate to be dispensed is altogether worthy of such a favor of shortening time. Wherefore to the second doubt it seems that it must be answered affirmatively to the first part; negatively to the second part; namely, before supplication is made for the grace, the consultive vote of the chapter must be sought, and that vote must not be sought after the grace has been obtained.

Gerbertus, a canon, obtained from the Ordinary of the place the faculty of dispensing from the law of fasting and abstinence in the sacramental forum. Among others, he dispenses many pilgrim penitents, granting to some the faculty of a double refection and of eating meat during the journey, even if they are already outside the diocese. But he himself, with his servant, his ordinary penitent, making a journey outside the diocese, dispenses both himself and his servant from both laws.

Q. Did Gerbertus act rightly?

R. Gerbertus acted rightly by dispensing pilgrim penitents. For pilgrims can well be dispensed by the Ordinary of the place, since by access to the local superior, if they seek a dispensation from him, they become voluntarily and sufficiently subject. But Gerbertus, enjoying the faculty delegated to him by the Ordinary of the place, can indeed dispense those same persons just as the bishop himself would dispense. He also well dispenses pilgrims during the journey, even if perhaps they are staying outside the diocese, provided however that the cause of the dispensation endures; for this is personal, and therefore adheres to the person, follows him everywhere, and is not restricted by territory. Thus indeed Fr. Gury 115. But D'Annibale 232 seems to deny the same thing, saying: "But, if a dispensation has a successive tract, since it is multiple, it ceases immediately when the one dispensed has ceased to be a subject." Yet this reason is not pressing. "When a dispensation has a legitimate cause in the person itself, and always goes with the person itself, it also goes outside the territory of the one conceding." Suarez, de Legib., l. 8, c. 26, n. 15; Albitius, de Inconst. in fide, c. 30, n. 253. But he acts badly in dispensing himself, because he is neither a superior, nor is he delegated to dispense in laws in the totality of causes, but only in particular occurring cases as regards abstinence and fasting; and because he has the faculty of dispensing only in the sacramental forum. But if outside the diocese he himself had been approved by the Ordinary of the place for hearing confessions, then he could indeed have dispensed his servant, his penitent, because the penitent would then have been sufficiently subject, and he could have dispensed him in the sacramental forum. But if he himself had not had the aforesaid approval from the Ordinary of the place, then he could not have dispensed his servant; since he could not have exercised the power had in the sacramental forum. Nor indeed could he have dispensed the servant in any way in the external forum, since he was not his subject, and a dispensation of law is exercised only upon a subject; nor could he have received such a power, for the external forum, from his own Ordinary, namely so that outside his own diocese, he who in no way was his subject should become his subject. - G. 115, 116, 140; Lig. l. 1, n. 158; l. 3, n. 262; I. M. 241.

But what if the dispensation is both personal and local after the manner of a privilege, "such as is the recent concession made by the Pontiff to some dioceses of France, of eating meat on Saturday, on this condition, that each person seek the faculty from the parish priest? Is it licit to use the license conceded outside the territory? It must be denied, because the dispensation is primarily local. This is clear from the response of the S. C. of the Inquisition to the Belgian bishops, who asked the Holy See concerning a similar case. The case seems to be excepted in which someone would pass through other places in which the same grace had been conceded." G. 140. But if the dispensation is primarily local, this exception is not without difficulty.

Renaldus, bound by a vow of perpetual chastity, desiring to contract marriage, sought a dispensation from the Sacred Penitentiary under the fictitious name of Titius. As the cause he alleged grave temptations which he was suffering against chastity. He received a negative rescript. A year having passed, he writes again to the Sacred Penitentiary, asking the same dispensation, with the same cause alleged, the fictitious name of Titius having been changed into the name of Sempronius, and the rejection which he had previously suffered being kept silent. On this occasion he kindly obtained the desired grace.

Laurentius, occupied with the grave affairs of his office, requested from the bishop a dispensation from a vow he had made of pilgrimage to a certain distant sanctuary of the Blessed Virgin Mary; but he by no means obtained it. When the bishop soon died, he sought and obtained the same dispensation, the same cause having been proposed, from the successor bishop, who was entirely ignorant of the prior petition.

Aurelius sought from the Apostolic Datary a dispensation from the impediment of consanguinity, for entering marriage with his cousin; but he did not obtain it. But discovering that his bishop had a special power for dispensing from the same impediment, he sought and obtained the dispensation from him, the same cause having been brought forward which he had previously set forth to the Apostolic Datary, but the denial which had previously been made to him at Rome being kept silent.

Q. 1. What is required for the validity of a dispensation? 2. What as to each case?

…and 23 more passages — all of them are listed on the topic page.

Bucceroni, Moral Enchiridion (4th ed., 1905)

Gennaro Bucceroni, S.J. — 3 passages (filed under the subtopics)

Bucceroni, Moral Enchiridion (4th ed., 1905), On Laws

n. 190.

Legitimately Constituted Custom

"... Therefore we have judged it good by the present Constitution, in order that abuses may be met, to declare what and of what sort a legitimate custom according to the canons ought to be, by which episcopal and ecclesiastical courts can have the right of taking cognizance of and judging the criminal causes of lay defendants. Therefore we order that not every custom for this purpose, but only that custom, have force which is both forty years old and perpetually constant, not indeed contradicted or interrupted. Moreover, we will that it be constituted by a multiplicity and frequency of acts, not slight but grave, which are known to have been performed with the intention of acquiring a prescriptive right against secular jurisdiction, not tolerated from favor or connivance; nor such acts as perhaps could have taken place apart from the certain and precise knowledge either of Us and of Our Successors for the time being, or at least of the supreme magistrates of this Our City, whom we are accustomed especially to set over the prosecution of the public vindication of crimes. We command that absolutely no account be taken, in a matter so grave, of the knowledge and patience of local rectors and of other inferior secular magistrates, to whom, when they are sometimes either negligent, or conniving and tolerating out of a certain reverential fear, we establish that it is not lawful, and has not been lawful, by their favor, acquiescence, and patience, to make legitimate a custom by which the jurisdiction entrusted to them is diminished, with the order of both powers disturbed. If, therefore, a custom such as we have now established is brought forward, we will that it be kept and observed; but a custom introduced otherwise we reprove, and by this Our Constitution we decree it to be of no force...." Clement XIII, Constitution Praestat Romanum.

n. 237, 241, 242.

On the Power of Dispensing

"77. For his own preservation, man can dispense himself from that law which God established for his benefit." Proposition of Pasquier Quesnel condemned by Clement XI.

n. 237, 241, 242.

"8. The Pope cannot dispense in the statutes of the universal Church." Proposition of the Masters of Oxford condemned by Sixtus IV.

Bucceroni, Moral Enchiridion

Gennaro Bucceroni, S.J. — 1 passage (filed under the subtopics)

Bucceroni, Moral Enchiridion, On Laws

n. ¶23.

N. 137. - What Is to Be Held as a Legitimately Constituted Custom?

"... Therefore we have judged it good by the present Constitution, in order that abuses may be met, to declare what and of what sort a legitimate custom according to the canons ought to be, by which episcopal and ecclesiastical courts can have the right of taking cognizance of and judging the criminal causes of lay defendants. Therefore we order that not every custom for this purpose, but only that custom, have force which is both forty years old and perpetually constant, not indeed contradicted or interrupted. Moreover, we will that it be constituted by a multiplicity and frequency of acts, not slight but grave, which are known to have been performed with the intention of prescribing secular jurisdiction, not tolerated from favor or connivance; nor such acts as perhaps could have taken place apart from the certain and precise knowledge either of Us and of Our Successors for the time being, or at least of the supreme magistrates of this Our City, whom we are accustomed especially to set over the prosecution of the public vindication of crimes. We command that absolutely no account be taken, in a matter so grave, of the knowledge and patience of local rectors and of other inferior secular magistrates, to whom, when they are sometimes either negligent, or conniving and tolerating out of a certain reverential fear, we establish that it is not lawful, and has not been lawful, by their favor, acquiescence, and patience, to make legitimate a custom by which the jurisdiction entrusted to them is diminished, with the order of both powers disturbed. If, therefore, a custom such as we have now established is brought forward, we will that it be kept and observed; but a custom introduced otherwise we reprove, and by this Our Constitution we decree it to be of no force..." Clement XIII, Const. Praestat Romanum.

Tanquerey

Adolphe Tanquerey, S.S. — 7 passages

Vol. II, Fundamental Moral Theology…, On Laws

n. 257.

Article III. Concerning Ecclesiastical Law.

In the Treatise on the Church (n. 49-100 and n. 199-216), it was proved that Christ conferred on the Church the power of making laws, and that this authority does not indeed reside in the body of the faithful or of simple priests, but with the supreme Pastors, primarily indeed with the Supreme Pontiff, and secondarily with Bishops. In fact, already from the Council of Jerusalem, the Church has not ceased to establish laws, by recalling to memory those things which had already been commanded by divine law, by determining more explicitly those things which divine law had left indeterminate, and by imposing certain things which until then had been free, for promoting the more perfect fulfillment of the evangelical law. Wherefore here certain principles must be handed down concerning ecclesiastical law considered in general; but particular laws are explained in the course of this work, and especially in the Praelectiones juris canonici.

⁴ St. Thomas, Ia IIae, q. 95-96; Suarez, lib. IV-VI; Billuart, diss. III-IV; Muller, § 48-69; Bouquillon, n. 108-213. - Besides theologians, see the Canonists, especially Reiffenstuel, Schmalzgrueber, De Angelis, Santi, in book I of the Decretals, tit. II, De Constitutionibus, tit. III, De Rescriptis, tit. IV, De Consuetudine. - Concerning ecclesiastical law the manuscripts were of the greatest use which S. Many, professor of canon law in the Catholic University of Paris, kindly handed over to me, and which he will make public at an opportune time.

Division:

Concerning the author
Concerning the object
Concerning the promulgation
Concerning the obligation of ecclesiastical law
Concerning interpretation
Concerning cessation
Concerning custom

n. 273.

§ IV. Concerning the Obligation of Ecclesiastical Law.

Ecclesiastical law, duly promulgated, has the force of obliging in conscience, as is clear from the Treatise on the Church (n. 49-67), where it was proved that Christ conferred on the Church the power of making laws. Hence those who despise the pastors are said to despise Christ Himself;² and filial obedience is to be shown to spiritual rulers.³

¹ St. Thomas, Ia IIae, q. 96; Suarez, lib. IV, c. 17-20; Billuart, diss. IV, art. 3-7; St. Alphonsus, lib. I, n. 140-152; Bouquillon, n. 133-163; Noldin, n. 118-127 and 136-148.

² Luke, X, 16.

³ Hebr., XIII, 17.

But if there is question of a doubtful law, according to the Code, can. 15, "laws, even irritant and inhabilitating laws, do not urge in a doubt of law; but in a doubt of fact, the Ordinary can dispense in them, provided there is question of laws in which the Roman Pontiff is accustomed to dispense."

We shall speak: 1. concerning the gravity; 2. concerning the extension; 3. concerning the subject of this obligation; 4. concerning the manner of fulfilling it.

n. 283.

1. General principle: All and only baptized persons, habitually in possession of reason, are subject to ecclesiastical laws.²

² "Those who have not received baptism are not held by merely ecclesiastical laws, nor baptized persons who do not enjoy sufficient use of reason, nor those who, although they have attained the use of reason, have not yet completed the seventh year of age, unless something else is expressly provided by law." (Code, c. 12).

(A) All baptized persons, as Trent openly defined:³ "If anyone shall say that the baptized are free from all the precepts of holy Church, which are either written or handed down, so that they are not held to observe them, unless they shall have wished to submit themselves to them of their own accord, let him be anathema." - For by receiving baptism, they become members of Christ and citizens of the Church (De Baptismo, n. 27).

³ Trent, sess. VII, de Baptismo, can. 8, apud Denzing., n. 745.

Heretics and schismatics also are bound per se by these laws. For if there is question of those who freely and culpably separated from the Church, they cannot by unjust rebellion exempt themselves from the obedience owed to legitimate superiors; in fact in the Corpus juris many laws are found concerning heretics, schismatics, and apostates, and it has several times been declared that they are held by impediments diriment of marriage. - But if the question is concerning those who are born in heresy, and remain in it in good faith, some have thought that the Church, for her benignity, does not wish to bind them by at least certain laws; but, as to the fact, the Church has never declared that they are immune from these laws. Therefore it can only be said that those who are in good faith are excused from every formal and culpable transgression of ecclesiastical laws, because they are wholly ignorant of them.

n. 284.

(B) Only baptized persons; for those who have not yet been regenerated by baptism are outside the Church. Now the Apostle teaches that the Church does not judge those who are outside;¹ the Pontiffs acknowledge that pagans are not bound by canonical constitutions;² and Trent declares that the Church exercises judgment over no one who has not first entered into her through the gate of baptism.³ Consequently infidels, Jews, and others not baptized are in no way held by ecclesiastical laws.

¹ 1 Cor., V, 12-13.

² Decretal., lib. IV, tit. 19, cap. Gaudemus, 8, De divortiis.

³ Trent, sess. XIV, cap. 2, apud Denzing., n. 775.

n. 285.

(C) Habitually in possession of reason, that is, those who have attained the use of reason and at least habitually retain it, such as not only those who actually enjoy reason, but also the insane who have lucid intervals, the drunk, and the delirious; but not infants and the perpetually insane. - For ecclesiastical law tends to this, that it direct the actions of subjects to a spiritual end; but the actions of those who enjoy reason neither actually nor habitually cannot be directed to the end; on the contrary, the actions of those who habitually enjoy reason can be directed, even if actually they lack the use of it. - Therefore it is licit (although it is not fitting) to furnish meat to infants and the insane on a forbidden day.

n. 286.

Yet certain exceptions are given: (a) laws granting rights, or irritating some act, can affect even those who do not habitually have the use of reason, - because they are not directive laws; (b) the impubescent are not subject to penal laws of the Church, unless the contrary is expressed in law: for, on account of defect of more mature judgment, they are worthy of mercy; (c) but the faithful are subject to the other laws suited to their age; hence they are not held by the precept of fasting unless they have reached the twenty-first year; but those who have completed the seventh year ought to hear Mass and abstain from meat, and those who have attained the use of reason ought to communicate at Easter time.

⁴ Who are adults, impubescent persons, infants, the Code, c. 8, thus declares: "§ 1. A person who has completed the twenty-first year of age is an adult; below this age, a minor. § 2. A minor, if male, is judged pubescent from the completed fourteenth year, if female, from the completed twelfth year. § 3. An impubescent before the full seventh year is called an infant or child or little one and is judged not in possession of himself; but when the seventh year has been completed, he is presumed to have the use of reason. To an infant are assimilated all who are habitually destitute of reason."

n. 287.

(D) It is asked whether the legislator himself is bound to obey his laws? (a) The legislator properly and directly is not held by his laws, at least more probably; for no one can command himself and exercise jurisdiction over himself. But he is held indirectly and consequently, insofar as he ought to observe the law established for the good of the whole community, in order to furnish subjects good example, and lest they be scandalized. But the gravity of this obligation depends on the gravity of the scandal caused by violation of the law.

(b) But those who compose a college endowed with legislative power are subject to the laws enacted by the college or council; thus bishops and the metropolitan ought to obey the laws which they themselves enacted in a provincial Council; for, taken singly, they cannot enact these laws, and therefore the provincial council is truly above the individual bishops, not excepting the metropolitan, and can impose precepts upon them. - But the Roman Pontiff, who, while he presides over an ecumenical council, remains above the council, is not directly obliged by the disciplinary laws of the Council.

Vermeersch, On Forbidden Books

Arthur Vermeersch, S.J. — 1 passage (filed under the subtopics)

Chapter IV: Abrogation of the Earlier Law

n. 21.

Whether customs have been suppressed

21. IV. What of custom, I mean of a particular custom of places which has been contrary to this law?

1. No clause of the law abrogates particular customs of places, if they have been legitimate. For they are not taken away by a general law, "unless it is expressly provided in the law itself."¹ But in our Constitution no clause, not even generically, commemorates them, whereas the Constitution Apostolicae Sedis contains the most ample revocations of them. Nor does the end of our law demand this severity, so long as the matter concerns certain secondary mitigations which had prevailed even in those places where the laws of the Index undoubtedly were in force, and which can be composed with general obedience to our Constitution. We judge that these, if they have been legitimately prescribed, can still be retained. In explaining articles 7 and 41, examples of mitigations of this kind will occur. Genicot,² the Archiv fur katholisches Kirchenrecht,³ and several others are with us; nevertheless Wernz is against us,⁴ since he considers only our written Constitution.

What custom can be legitimate

But the custom of plainly setting aside those prohibitions which contribute so greatly to protecting faith and morals seems to many not to be capable of being reasonable. So Fessler.⁵ Gopfert denies that this reason is effective,⁶ since this custom tended only to this: that those who would read reprehensible writings without detriment would not commit a sin against ecclesiastical laws, a case which otherwise would be very frequent. And in truth, can the faithful not, by the counsels of a prudent confessor, avoid the excessive danger of delusion, on account of which that custom would seem unreasonable?

Nevertheless, a general exemption from the laws of the Index, even one resting on custom, cannot stand with the manifest intention of the Legislator, by which he commands that "Catholic men throughout the whole world obey these decrees religiously." Yet he prudently knows how to urge the force of his law. Cf. below concerning England.

¹ C. Licet 1, De Constitutionibus, in Sexto. Cf. Reiffenstuel, I, 4; or I, 2, nn. 498, 499; Laymann, Ius canonicum, in book 1, title 2, chapter 1 in Sexto, n. 12.

² Loc. cit., I, n. 455.

³ Vol. 78, p. 187.

⁴ N. 110, note 46.

⁵ Cited by Arndt, op. cit., n. 90, p. 104.

⁶ Op. cit., p. 322.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 1 passage

Vol. I, Tr. III, Ch. II, Article II: On Ecclesiastical Law

Usefulness. - Since ecclesiastical laws are accustomed to oblige conscience directly, and not rarely, because of moral matters, the Roman Curia must be approached, canonical notions concerning these laws and concerning the Roman Curia are necessary for the moral theologian, according to that saying: a moralist without law can do nothing.

Order of speaking. - In this article we complete the things which above we wrote both concerning laws in general and concerning human laws. For many things must be indicated which are more proper to ecclesiastical law. But this will be the order of speaking: that first we place those things which affect the law itself in itself; then those things which regard the subject of the law; then those things which concern the author of the law (which will be the occasion for briefly explaining the ecclesiastical hierarchy); afterward those things which pertain to the interpretation of law; finally those things which regard dispensation from law. To this last argument a brief dissertation on rescripts and on the Roman Curia will be connected.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 10 passages

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. I, Art. I, § 1. On the Author of Ecclesiastical Law

n. ¶139.

PRINCIPLES. I. The Pope can make laws for the whole Christian world. For it is of faith that the Roman Pontiff has, by divine right, supreme, universal, and immediate jurisdiction in the Church. "For he is the head of the whole Church, Father and Doctor of all Christians, and to him, in Blessed Peter, the full power of feeding, ruling, and governing the universal Church was handed down by Our Lord Jesus Christ." Thus (after the Council of Florence) the Vatican Council (Sess. 4, c. 3).

n. ¶140.

The Roman Pontiff ordinarily establishes and promulgates his decrees through the Roman Congregations.¹ "By their voice," says Benedict XIV (Instit. 107, n. 6), "the Apostolic See declares its opinions" (cf. n. 169). But this must be noted, that the decrees of the Roman Congregations, if you except comprehensive declarations of laws, do not acquire the force of law unless the supreme confirmation of the Supreme Pontiff and the command of promulgation have been added. One Congregation can be excepted, namely the Congregation of Sacred Rites, which of itself, even when the Supreme Pontiff has not been consulted, has the right of establishing laws, as is drawn from the decree of May 23, 1846 approved by Pius IX. It is said: can be excepted, because there are not lacking those who deny this (Heiner, Kath. Kirchenr., 1912, p. 275), or admit it only with restriction (Piscetta, Theol. mor., I, n. 297).

The Constitution Sapienti consilio, issued by Pius X on June 29, 1908, clearly circumscribes the competence of each Congregation (cf. A. A. S., I, p. 9 ff.).

n. ¶141.

II. A Bishop, provided he has been canonically instituted and has taken real possession of his See, can make laws for his diocese. Doctors indeed disagree concerning the origin of this power. Some with Vasquez contend that it is derived immediately from Christ to the Bishop; others with St. Thomas and St. Antoninus say that it is derived only mediately and is communicated by the Supreme Pontiff. And this controversy indeed was agitated in the Council of Trent with great heat of minds. Today, however (Craisson, Man. Jur. can., n. 868), the second opinion has become much more common. Pius VI himself, in the Brief to the Bishop of Motula, September 16, 1788, asserts: "the episcopal dignity as to order is immediately from God, and as to jurisdiction from the Apostolic See."

It must be noted: 1. The Supreme Pontiff cannot take away from Bishops all legislative power, but he can indeed limit it, reserve some things to himself, etc. (cf. Lehmkuhl, I, n. 213).

The ordinations of Bishops are judged to be only precepts, not laws, unless they have been made in a diocesan Synod. Indeed a Bishop can make laws outside a Synod (after the Chapter has been heard); but in this case he must declare that he wishes to establish a stable law for all (Noldin, Gopfert, Lehmkuhl). It does not matter if the Chapter dissents, provided the matter does not concern things in which the consent of the Chapter, according to the Canons, is required for the validity of the act: for example, if they would yield to the prejudice of the Chapter or Clergy, that is, to the violation of a right already acquired (I, 104; H. Ap., II, 33). But where no Chapters yet exist, or where the right of the Chapter has been abrogated by contrary custom, the Bishop is not bound to hear it, as is self-evident (Konings, Theol. mor., n. 102, 3).
Archbishops and Patriarchs cannot make laws in suffragan dioceses, unless they have this from custom. They can, however, settle lawsuits brought from them to themselves.
Bishops can do nothing against common right; but they can fortify their own laws with sanction (S. C. C., 1878).

n. ¶142.

III. Ecumenical Councils for the whole Church, national Councils for a nation, provincial Councils for a province, diocesan Councils for a diocese, can establish laws. The reason is that each Council is gathered either by established law or by pontifical authority, but their decrees receive strength from the approval of the Supreme Pontiff.

It must be noted. 1. An ecumenical Council does not possess its authority unless the Pontiff presides over it through himself or through Legates, and confirms its decrees. For the Church cannot be represented when its head is absent; and an ecumenical Council derives its force and infallibility from the Supreme Pontiff (I, n. 121; ed. G., I, p. 107).

From the Constitution of Sixtus V, in the year 1588, the decrees of provincial Councils must be sent to the Sacred Congregation of the Council, so that they may be reviewed and, if necessary, amended. In the year 1896 the Holy Office declared that these Councils enjoy the power of making laws. Read the Constitution Sapienti consilio of Pius X, with the statute de Ordine servando, c. 7, a. 4, 6. The CONFIRMATION of Synods by the Apostolic See can be made in two ways, carefully to be distinguished: in common form, or in specific form: 1. Statutes are said to be confirmed in COMMON form if only it is said that nothing worthy of censure is contained; and regularly there is made only this simple revision, which attributes to them no new right or efficacy. 2. Confirmation is said to be made in SPECIFIC form if they are confirmed by Apostolic authority with the clause motu proprio and from certain knowledge. A statute confirmed in specific form, since it has put on the nature of a pontifical law, no one of inferiors may derogate from; indeed, from this confirmation a statute receives such powers that it prevails over common right to which it would be contrary. Thus Benedict XIV (de Syn., l. 13, c. 5, n. 11).

n. ¶143.

IV. The cathedral Chapter, when the see is vacant, enjoys legislative power, since it succeeds into the place of the Bishop (I, 104). Nevertheless, since jurisdiction, divided among many, is exercised with difficulty, the Council of Trent ordered that, within eight days from the known vacancy of the see, the Chapter elect a capitular Vicar, into whom all jurisdiction, whether ordinary or delegated by law, is irrevocably transferred. But when the see is vacant, neither the Chapter nor the capitular Vicar can abolish diocesan statutes. They can only dispense in them, or suspend their execution. "When the episcopal see is vacant," says Innocent III (Decret., l. 3, tit. 9, c. 1), "nothing ought to be innovated."

n. ¶144.

V. Finally, those persons enjoy legislative power to whom jurisdiction of the external forum has been communicated by the Supreme Pontiff, such as Prelates who obtain quasi-episcopal jurisdiction, for example Abbots by ordinary right, and Apostolic Vicars by delegated right. Likewise, Prelates of regulars, within the limits of their jurisdiction, can establish true laws, or perpetual statutes, whether in the general Assemblies of the Order, or in another way, according to their own constitutions approved by the Holy See.

But parish priests do not have jurisdiction of the external forum, and therefore cannot, not even for removing abuses, make laws or decree penalties. Hence, if they need external and judicial help, they must recur to the Bishop. Cf. Trent, Sess. 24, c. 1, de ref. Matrim.

Nor similarly can Abbesses or Superioresses of Nuns make laws properly so called. Nevertheless they can, for the right governance of the monastery, give precepts; indeed they can oblige under grave matter to observing them (I, 104; IV, 52). See Lugo, Resp. moral., l. 6, dub. 6, n. 8-9.

For nuns the Pope, the Bishop, the Superior general of orders of men who have an order of women annexed, can establish laws.

Scholium

Vol. I, Pt. I, Tr. III, Ch. III, Article IV. On the Promulgation and Acceptance of Law · Vol. I, Pt. I, Tr. III, Ch. III, Art. VIII, § 1. On the Cessation of Obligation Because of Impotence · Vol. I, Pt. I, Tr. III, Ch. III, Art. VIII, § 2. On the Cessation of the Obligation of Law by Dispensation · Vol. I, Pt. I, Tr. III, Ch. III, Art. VIII, § 3. On the Cessation of the Obligation of Law by Privilege

On Ecclesiastical Right

n. ¶145.

The RIGHT OF THE CHURCH is divided into written and unwritten.

I. WRITTEN RIGHT contains special or general ecclesiastical laws. The special laws for diverse places report the statutes of provincial Councils and Synods. Concordats also pertain to particular right. The general laws of the Church are contained in a threefold collection, by which ancient right, new right, and newest right are constituted.

Ancient right extends from the age of the Apostles to the twelfth century. Those old laws are found inserted in more recent right. New right runs from the twelfth century to the fourteenth century, and is contained in the Body of Canon Law. Newest right consists of all the laws which were established after the Body of Canon Law was closed. Concerning all these things the Canonists treat at length. Cf. Devoti, Inst. Can., Proleg., c. V, VI, VII.

II. UNWRITTEN RIGHT embraces tradition and custom. Tradition is the mandate of the legislator which, announced to peoples by the living voice, has come down even to us. Custom is right introduced by the very manners of men. Both draw obligation with them.

n. ¶146.

The BODY OF CANON LAW is the complex of ecclesiastical laws. It consists of six parts, which are: the Decree of Gratian, the Decretals, the Sixth, the Clementines, the Extravagants of John XXII, and the Common Extravagants.

The DECREE OF GRATIAN (that is, the collection of Decrees, published in the year 1151 under the title "Concordance of Discordant Canons," made by the work of Gratian, a monk from the Order of St. Benedict) consists of three parts; of which the first treats of ecclesiastical persons, and is divided into 101 distinctions, which again are distributed into chapters or canons. It is cited in the following way: Chapter Jejunium 7, dist. 76; or also: Dist. 76, c. 7. The second part, which treats of actions or of judgments, is divided into 36 causes; but the causes are divided into questions, and the questions into chapters, or canons. It is cited: Chapter Qui viderit 13, quest. 5, caus. 32; or: Caus. 32, q. 5, c. 13. The third part treats of sacred things, and consists of 5 distinctions, which are divided into various chapters or canons. It is cited: Chapter Est unitas 49, dist. 4, de consecrat.; or: De consecrat., dist. 4, c. 49.

The DECRETALS, or the Five Books of Decretals, collected by St. Raymond of Pennafort, O.P., by order of Gregory IX and published in the year 1234, have titles and chapters. They are cited in this way: Chapter Pervenit 28, de appellationibus; or Decretal., book 2, tit. 28, c. 28. Cf. De Angelis, Prael. Jur. can.

The SIXTH, or Sixth Book of the Decretals, is so called because it was added to the five books of the Decretals, and contains the Decretals edited from Gregory IX up to Boniface VIII. It came forth in the year 1298 by the authority of Boniface VIII. It is divided into five books, which also have titles and chapters. It is cited in the same way, but there is added: in 6 (in the Sixth).

The CLEMENTINES, so called from Clement V, who after the Council of Vienne (over which he presided in the year 1311) ordered them to be collected. They consist of Constitutions edited either by Clement himself or by the Council of Vienne. John XXII promulgated these in the year 1317. They are cited: Clem., Si plures 3, de praebendis; or Book 3, tit. 2, c. 3, in the Clementines.

The EXTRAVAGANTS OF JOHN XXII are Constitutions which he himself edited in the earlier years of his Pontificate. They are called extravagants because they wander outside the Body of law collected up to this point. They are accustomed to be cited in this way: Extrav. Joann. XXII, tit. 4, c. 1, or: Extrav., tit. 4, c. 1.

The COMMON EXTRAVAGANTS, so called because they were edited by John XXII and by several other Pontiffs, are likewise divided into five books, and these into titles and chapters. They are cited: Extrav. comm., book 5, tit. 3, c. 2; or: Chapter Vas electionis, de haereticis, Extrav. comm.

Gregory XIII, by the Bull Cum pro munere pastorali, took care that the whole Body of Canon Law, diligently emended, be published at Rome. But it is certain that book VII of the Decretals and the Institutiones of Lancellotti, which are read appended at the end of the Body of Law, do not have the force of law, since they possess no Pontifical confirmation. The same must be said of the Decree of Gratian. For, although it was several times emended by the care of the Roman Pontiffs, and is everywhere cited by authors, nevertheless, Benedict XIV testifying (de Syn., l. 7, c. 15, n. 6), "it has been received among all that whatever is contained in it has only as much authority as it would have had of itself if it had never been inserted in the collection of Gratian." But the other parts of canon law universally oblige, unless they have been abrogated by a contrary law or legitimate custom (I, n. 105).

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 8 passages

Vol. I, TREATISE ON LAWS, PART SECOND: ON THE PRINCI…, Ch. II, ARTICLE I: ON ECCLESIASTICAL LAW

n. ¶169.

- Ecclesiastical law is said to be that which is made by ecclesiastical power for the right government of the Church and the eternal salvation of souls.

The collection of various ecclesiastical laws is called Canon Law; but a threefold collection of these laws is distinguished: ancient, new, newest, and from this comes the division of Canon Law into ancient, new, newest. Yet of ancient law, which extends from the age of the Apostles up to the twelfth century, almost no account is had today; for the laws of that age are contained, for the most part, inserted in more recent Law. Therefore either the discussion is about new Law, which extends from the twelfth century up to Trent; or about newest Law, which extends from Trent up to our age. The first is contained in the Body of Canon Law; the second in Trent itself, in the Bulls, Briefs, and Rescripts of Pontiffs issued after the Body of Law was closed; likewise in the Declarations of the Roman Congregations and in the Rules of the Apostolic Chancery.

n. ¶170.

- The Body of Canon Law consists of six parts, constituting three volumes. They are: the Decretum of Gratian, the Decretals, the Sixth, the Clementines, the Extravagants of John XXII, and the Common Extravagants.

I. The first volume contains the Decretum collected by Gratian, a Benedictine monk, and published in the year 1151 under the title: Concordance of Discordant Canons. The work is distributed into three parts, of which the first treats of ecclesiastical persons, the second of actions or of the matter and form of judgments, and the third of sacred things.

The first part is divided into one hundred and one distinctions, which are subdivided into chapters or canons. Thus it is usually indicated: cap. Jejunium 7, dist. 76; or also dist. 76, cap. 7.

The second part is divided into thirty-six causes; but causes are divided into questions, and questions into chapters. It is cited in the following manner: cap. Qui viderit 13, quest. 5, causa 32; or caus. 32, qu. 5, c. 13. - The treatise de Poenitentia, having seven distinctions, is cited thus, for example: cap. Mensuram 86, dist. 1, de Poenitentia; or de Poenitentia, dist. 1, c. 86.

The third part consists of five distinctions, which are divided into various chapters. They are cited: cap. Est unitas 49, dist. 4, de Consecrat.; or: de Consecrat. dist. 4, c. 49. For this part treats of the consecration of Churches, altars, etc.

II. The second volume contains the Decretals omitted by Gratian, or issued after him, collected by St. Raymond of Pennafort, of the Order of Preachers, by command of Gregory IX, and published in the year 1230. It is divided into five books, which have titles and chapters; but they are cited in this manner: cap. Pervenit 28, de Appellationibus, or Decretal. lib. 2, tit. 28, c. 28. A chapter indicated in this latter way is much more easily found.

III. The third volume contains the book called the Sixth, the Clementines, and the Extravagants both of John XXII and the Common ones.

The Sixth, or sixth book of the Decretals, is so called because it is added to the five books of the Decretals of Gregory IX, and contains the Decretals issued from Gregory IX up to Boniface VIII. It appeared in the year 1298 by the authority of Boniface VIII: it is divided into five books, which also have titles and chapters. It is cited in the same way, but there is added: in Sexto, or apud Bonifacium.

The Clementines, so called from Clement V, who ordered them to be collected after the Council of Vienne, over which he presided in the year 1311, are Constitutions issued by Clement himself or by the Council of Vienne. John XXII promulgated them in the year 1317, in five books, which no less than the Decretals and the Sixth consist of titles and chapters. They are likewise cited in the same way, but there is added: in Clementinis.

The Extravagants of John XXII are Constitutions which he issued in the earlier years of his pontificate. They are so called because they wander outside the Body of Law collected thus far. They are usually indicated thus: Extrav. Joannis XXII, tit. 4, c. 1.

The Common Extravagants, so called because they were issued by John XXII and by several other Pontiffs, are themselves divided into five books, which have chapters with titles. But these are ordinarily cited in this way: cap. Vas electionis, de Haereticis; Extravag. communib., or Extrav. comm. lib. 5, de Haereticis, c. 2.

Gregory XIII took care that the whole Body of Canon Law, diligently emended, be published at Rome by the Bull "Cum pro munere pastorali." But it is certain that the seventh book of the Decretals and the Institutions of Lancellotti, which are found placed at the end of Canon Law, do not have force, since they are private collections, endowed with no Pontifical confirmation. Likewise the Decretum of Gratian, although emended several times by the care of the Roman Pontiffs, and although it is everywhere cited, nevertheless "it has been received among all," says Benedict XIV himself, "that whatever is contained in it has as much authority as it would have had of itself if it had never been inserted in the Collection of Gratian."¹ But the remaining parts of Canon Law oblige, unless they have been abrogated by contrary law or by legitimate custom. (N) p. 479.

The laws of newest Law have not yet been collected into a Body of Law.

n. ¶171.

Questions. - Quaer. 1° What must be held 1) concerning the Rules of Law; 2) concerning the titles of the Decretals; 3) concerning the superscriptions and summaries of chapters; 4) concerning the glosses and notes which are found in the Body of Law?

Resp. to 1). Under the title de Regulis Juris, at the end of Book V of the Decretals, and at the end of the Sixth of the Decretals, certain general sentences are inserted, which briefly contain established law concerning diverse matters having the same reason. Let this be an example: "Every thing is dissolved by the same causes by which it is born," which declares concerning various obligations that they cease by the same causes by which they are introduced, and can be applied, for example, both to a law, which is dissolved by the same efficient cause, namely the legislator, by whom it was born, for instance if he dispenses in it or abrogates it, - and to contracts, which, just as they exist by mutual consent, are also dissolved by mutual consent. - They have the force of law as to cases not excepted. Thus from the Rule of Law just cited the contract of marriage is excepted, which, although it is born from mutual consent, nevertheless is not dissolved by the same. Hence the axiom: There is no rule without exception. Those exceptions are called fallacies by the Doctors, and they become known either from the nature of the thing, or from the law itself, or from general custom.

Resp. to 2). The titles of the Decretals, like the Rules of Law, are authentic in the authentic books, since they are from the legislator himself; but they do not have the force of law, or of a Rule of Law, unless they refer a complete sense, such as, for example: "That, issue not having been joined, one not proceed to witnesses," etc.; "Lest, the See being vacant, anything be innovated." Since the titles of the Decretals were originally written in red letters, and briefly present the matter of the chapters which are contained under them and which were written in black character, the axiom prevailed: "from the red to the black the inference has force"; and the contrary: "from the black to the red the inference does not have force," or what is said in the title is said in the individual chapters which are contained under it; but many things are said in the chapters which are not said in the title under which they are placed.

Resp. to 3). Superscriptions are those words which indicate whence the text of the chapter was taken, or to whom it is directed. In the authentic books they are authentic, and from these a valid argument is deduced. - Summaries are words by which private doctors summarized the chapters; they are not authentic, but serve for the convenience of readers.

Resp. to 4). A gloss is a fuller explanation of the canons made by authors; but a note is a briefer illustration or addition of citations. Neither has authentic force, but only doctrinal force.

n. ¶172.

- Quaer. 2° What are the principal Roman Congregations, and what are their various offices?

Resp. The principal ones are:

1° The Congregation of the Council (of Trent), or of Cardinals. It consists entirely of Cardinals, who are called interpreters of the Fathers of the Sacred Council of Trent, and one of whom is distinguished by the title Prefect of the Congregation. Pius IV had first instituted it for the observance of the Council; afterward, moved by the necessities of affairs, Sixtus V endowed it also with the power of interpreting decrees of the Council which pertain to the reform of morals or discipline and seem doubtful.

2° The Congregation of Bishops and Regulars. It too wholly coalesces from Cardinals. As the name indicates, it undertakes two things to be treated: namely those things which regard the good administration of the dioceses of the whole Catholic world, and those things which pertain to controversies and lawsuits of Regulars of both sexes, to be known and decided according to the Sacred Canons.

3° The Congregation de Propaganda Fide. It was instituted by Gregory XV by the Constitution Inscrutabili, January 22, 1622.

Its office is to distribute the lands to be evangelized among various missionaries, and to send them there with very ample faculties; to propose some of them to the Supreme Pontiff that they be created Bishops, or only Vicars or Prefects Apostolic; to decree concerning various affairs which sometimes arise between missionaries of various Orders and the Ordinaries of places. -

Moreover it resolves questions, or cases of conscience, which are proposed by missionaries, and sends to them instructions, ordinances, etc., according as the good administration of affairs demands. (E) p. 479.

Urban VIII added to it a College or special Seminary under the same name of Propaganda Fide, in which youths of various infidel or heretical nations are educated, who then spread the faith in their regions.

By his Apostolic Letters of January 6, 1862, Pius IX divided the Congregation de Propaganda into two parts: one for the Latin rite, and the other for the Oriental rite.

4° The Congregation of Sacred Rites. Besides Cardinals, it also consists of Consultors, Prelates or Regulars. It defines and orders the Sacred Liturgy and those things which pertain to it. The examination of causes of Beatification and Canonization of Saints is also commemorated among its offices.

5° The Congregation of the Index, instituted by St. Pius V. In it Cardinals and several other learned men have a place. It exercises one office, but of great moment for the good of society both ecclesiastical and civil: namely it takes care of books which are published, lest through them anything against Religion and good morals be propagated among Christians. Those which it judges harmful to the faithful it accurately notes, forbids, and refers into the Index, which therefore is called the Index of prohibited books, so that the faithful may abstain from reading them as from poisonous pastures. Yet sometimes books are prohibited both by the Congregation of the Holy Office and by the Pontiff himself through particular Briefs and dogmatic Constitutions, especially if they savor of heresy.

6° The Congregation of the Holy Office, or of the Sacred Universal Inquisition. It is called Supreme, and consists both of Cardinals and of Prelates and Theologians.

It belongs to it to take cognizance of heresy, and also of suspicion of heresy, or of other irreligious things. It was instituted by Paul III, and confirmed by Sixtus V.

7° The Congregation of Indulgences and Relics. It has the faculty and office of resolving all difficulties and doubts concerning Sacred Relics and Indulgences. It consists of a number of Cardinals to be determined by the Supreme Pontiff, and of other Prelates and Theologians.

8° The Congregation of Immunity, which coalesces from Cardinals and a few others. It inspects and takes cognizance of causes concerning ecclesiastical Immunity, whether real, personal, or local.

Besides the Congregations there are also sacred tribunals, both gracious and contentious. We mention one gracious tribunal, the Sacred Penitentiary, since the rest scarcely pertain to our matters and circumstances. But the Penitentiary is a tribunal instituted for imparting certain graces in the internal forum. Its office is to grant faculties of absolving from sins and censures reserved to the Pope, dispensations in vows and irregularities, and also generally in occult impediments of marriage, as will be said more fully in its place. To it also belongs to solve practical doubts, or to resolve difficulties which are proposed to it.

n. ¶173.

- Quaer. 3° What force do the Declarations and Decrees of the Sacred Congregations have?

Resp. 1° Looking at the source from which they are derived, they have the same force as if they had immediately proceeded from the Roman Pontiff; provided however they are authentic, that is, subscribed by the Prefect and Secretary of the respective Congregation and furnished with the seal of the same.

2° They have that force even if they are not explicitly confirmed by the Supreme Pontiff.

3° Yet they are not infallible unless they are confirmed by the Supreme Pontiff, and by him speaking ex Cathedra.

The 1st is proved. For they are given by commission of Apostolic authority. - The 2nd from the same reason, and besides from the Response of the Sacred Congregation of Rites, May 23, 1846. - The 3rd: for infallibility is not delegable, since it is personal and proper to the Roman Pontiff.

Quaer. 4° Do the Declarations and Decrees of the Sacred Congregations always have universal force?

Resp. 1° Affirmatively, if either they are issued by the Sacred Congregations as universal; or, by removing the ambiguity of law, they comprehensively interpret the sense of a universal law. The reason is plain of itself from what was said in this number under question 3.

Resp. 2° Negatively, if they are given in cases altogether particular, on account of special adjuncts of things or singular conditions of place, which is to be gathered from the exposition of the case and from the fact. This is plain from the Response of the Sacred Congregation of Rites, April 8, 1854. But whether particular responses of this kind must necessarily be extended to similar cases is disputed probably on both sides;¹ but it is certain that they generally have doctrinal force in altogether similar cases, since they are responses of men most versed in those matters.²

Quaer. 5° Must Declarations and Decrees having universal force be promulgated in order to oblige?

Resp. Affirmatively, if they are extensive; negatively, if they are comprehensive. The reason is plain from what was said at n. 143. III. But they are judged sufficiently promulgated if they have already been universally spread in the Church either by the use of many years, or by the report of authors commonly referring them.³

Quaer. 6° Is there some authentic collection of the Declarations and Decrees of the Sacred Congregations?

Resp. Affirmatively, namely of the Sacred Congregation of Rites (Gardell.), of the Council (Thesaur. Resol.), of Indulgences (Prinzip.).

Quaer. 7° Whence does it happen that some responses of the Sacred Congregations seem sometimes to contradict themselves?

Resp. This is accustomed to happen for a threefold cause. For in them there was question either of singular cases, which had to be resolved differently on account of diverse circumstances of places and things; or of doubtful questions not yet discussed, to which, if an immediate response must be given, the Congregations usually adhere to the more common opinion, not decisively, but doctrinally;¹ or of decisions, as they call them, a posteriori - not a priori - which are given not according to strict law and considered nakedly, but with account had of that special case, and then the decision is usually given with some addition, for example, affirmatively or negatively, as in the case, as it lies, etc.

n. ¶174.

- Quaer. 8° What is the sense of certain clauses which often occur in the responses of the Sacred Congregations?

Resp. Especially the following are accustomed to occur.

a) Dilata, that is, the response is deferred, so that the matter may be subjected to maturer examination, as being of difficult solution.

b) Affirmative et amplius, - Negative et amplius, that is, when the matter has been discussed enough and more than enough in the Sacred Congregation, and has been decided as it lies by full votes, such a question is no longer admitted.

c) Nihil, that is, the petition is not admitted, as unsuitable.

d) Relatum or Lectum, that is, when the request had been reported or read in the Sacred Congregation, it was not admitted.

e) Reponatur, or no response is given, but the petition is placed in the Archives of the Sacred Congregation.

f) Detur decretum generale. This obtains when there is question of a grave matter which is neglected by many.

g) Spectare ad Episcopum, or Orator adeat Episcopum, namely that he himself provide according to canonical ordinances, not according to his own whim.

h) Non congruere, - Non expedire, that is, the Congregation does not think it fitting that what is asked be conceded; therefore it does not will to grant the sought grace, nor is it granted.

i) Orator rem deferat ad Ordinarium et ejus judicio se dirigat, or the thing requested is not conceded by the Sacred Penitentiary, but is remitted to the Ordinary, so that, if he has the faculty, he may provide for the matter according to his prudence; otherwise he should either obtain the faculty, or, if he judges that this is not expedient, he should enjoin what must be enjoined.

j) In decretis, - In decisis, or the prayers, not heard and repeated by the petitioner, are not to be heard.

k) Ad mentem, or besides the solution of the doubt something else is observed or declared by the Sacred Congregation, which, if it is secret, is manifested only to those to whom the response is directed; otherwise it is added to writings publicly drawn up with these words: the sense is, etc.

l) Facto verbo cum Sanctissimo, or: Ad Dominum Secretarium cum Sanctissimo, or that the Congregation does not have the faculty of granting the grace, and therefore the Secretary is ordered to refer the Rescript of the Sacred Congregation to the Supreme Pontiff, who is accustomed to approve the judgment of the Congregation and to grant the grace.

m) Providebitur in casibus particularibus, or that the case which was proposed generically and indeterminately must be proposed determinately.

n) Gaudeat impetratis, or the petitioner ought to be content with the grace obtained, and the extension of the same, or another which is newly requested, is not conceded.

o) Sanctissimus annuit pro gratia, arbitrio et conscientiae Episcopi, or the grace has been conceded and nothing is lacking for it to have full effect except execution, which the delegate cannot deny unless perhaps there underlies a canonical cause, not set forth to the Holy See, which by law impedes it. (O) p. 479.

n. ¶175.

- Quaer. 9° What concerning Bulls, Briefs, and Pontifical Rescripts?

Resp. 1° Bulls are certain Constitutions of the Roman Pontiffs, regarding, for the most part, weightier business, and formerly written in Teutonic character, now in Latin, on parchment. They are called Bulls from the leaden seal adhering by small cords. But today, with certain exceptions, a seal of red color is impressed on the paper, bearing the images of the Apostles Peter and Paul, with the inscription of the name of the reigning Pontiff drawn around. Acta, T. XI, p. 465.

They receive various names from various objects. Some are gracious, which contain a free conferral. - Others of justice, which regard the administration of justice. - Others consistorial, which are dispatched in Consistory. - Others half-bulls, which are brought forth by a Pontiff not yet consecrated, and do not show his name on the seal. Bulls are cited by the words with which they begin; Bullaria are called collections of Bulls.

2° Briefs are certain Constitutions of the Roman Pontiffs for matters, for the most part, of lesser weight. They are dispatched through the Secretary of Briefs, written on white and thin parchment in Latin and in a polished character. They have a seal of red pigment, bearing the image of St. Peter exercising the fishing, and therefore they are said to be dispatched under the Ring of the Fisherman.

3° Rescripts are called the responses of Pontiffs to requests. There are two kinds of them. Some are issued in the manner of familiar letters, which the Supreme Pontiffs are accustomed to give either when they are asked by those with whom they have a particular relation of friendship, or when they are asked for counsel as learned and pious men; and no force of obliging is present in them, as they proceed more from courtesy of soul than from true authority. - Others are issued in the manner of Decrees by the Pontiffs as successors of St. Peter and Pastors and Teachers of the universal Church; and therefore the greatest force is present in them, since through them pontifical right and supreme jurisdiction are exercised.

n. ¶176.

- Quaer. 10° Do pontifical Letters and responses not inserted in the Body of Law have the force of law?

Resp. Affirmatively, if their authenticity is established, and, in the case in which according to what was said at n. 143. III they need promulgation, they have been sufficiently promulgated, namely if they are published in that way in which laws are accustomed to be published, or if from the usage and sense of the universal Church they have already been held for many centuries as authentic and sufficiently promulgated.¹

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 3 passages

Vol. I, General Moral Theology, Treatise: On Laws in General, Sect. C, Sixth Part: On Ecclesiastical Law

n. 323.

323. Ecclesiastical law is an ordination of human reason by which the Church and the baptized faithful are directed by him who has care of them unto sanctity and eternal life. For just as civil law is necessary for determining the natural law and for ruling the people in order to temporal felicity, so ecclesiastical law is necessary for determining, inculcating, completing, and urging by an added special sanction of penalty the natural and divine law, and thus for ruling the Christian people in order to the last end. It is not surprising, therefore, if many things said about human law are applied in the present matter.

n. 323.

St. Thomas does not specially treat ecclesiastical law, because this used to be done in the science of law.

n. 323.

The law is also called canonical, from the eighth century, from canons which are opposed to civil laws already in the Council of Ancyra (314) and Nicaea I (324); likewise sacred human law, both by reason of the authority which was constituted by Christ (by divine law), and by reason of the matter, which excludes temporal things as such, and by reason of the end, because it is made for the sanctification of souls. Hence it is a derivation, imitation, and supplement of divine law.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 53 passages (filed under the subtopics)

Vol. I, Pt. I, Tr. III, Ch. III, Article IV. On the Promulgation and Acceptance of Law

n. 200.

200. Notion. The promulgation of a law is its authentic manifestation made by the legislator. Promulgation is distinguished both from the divulgation and from the notice of the law. For promulgation is the public announcement of a law made by command of the legislator with some solemnity according to received usage; but divulgation is the declaration of the promulgation itself made by trustworthy private persons.⁸⁷ But notice or knowledge of the law is something subjective, namely, although the law has been sufficiently promulgated and indeed even divulged, nevertheless it can be unknown by some subjects. It is plain of itself that divulgation is not required for inducing the obligation of a law; on the contrary, knowledge of the law is required in order that the law oblige in second act, or that its transgression be formally sinful. But it is asked whether even promulgation is necessary for inducing the obligation of law.

⁸⁷ Cf. Billuart, De leg. diss. 3, a. 2.

n. 201.

201. Necessity of promulgation. Although promulgation more truly does not pertain to the very essence of law, as was said above,⁸⁸ nevertheless no human law actually obliges before it has been authentically promulgated. For it would be true tyranny if a human legislator wished to urge the observance of some law before subjects could even arrive at authentic notice of the law. But authentic notice of a law cannot be had without authentic promulgation. Whence it is said in the Decretals:⁸⁹ "It is not necessary, when a constitution is solemnly issued or publicly promulgated, to inculcate knowledge of it into the ears of each one by a special mandate or letters; but this alone suffices, that he who knows it to have been solemnly issued or publicly promulgated is held to its observance." - By these words is indicated not only the necessity of promulgation, but also when sufficient promulgation is judged to be present. For it is not necessary for sufficient promulgation that the law be manifested to each subject individually or actually be known, but it is required and suffices that each subject can (morally speaking) have knowledge of the law.

⁸⁸ n. 143 note.

⁸⁹ c. 1, X, 1, 5; cf. Cod. iur. can. c. 8, § 1.

n. 202.

202. Mode of promulgation. a) The mode of promulgation for civil laws neither was nor is the same in all regions. Today civil laws are usually promulgated in some so-called official gazette.

b) Laws of the Supreme Pontiff formerly were affixed to the doors of Basilicas, or "at the entrance of Campo de' Fiori,"⁹⁰ and thus were sometimes presumed to have been sufficiently promulgated. Sometimes they were also transmitted to individual bishops or other ecclesiastical superiors. But now these pontifical laws are promulgated by publication in the official commentary of the Acta Apostolicae Sedis, unless in particular cases another mode of promulgating has been prescribed; and they exert their force only when three months have been completed from the day which is placed on the number of the Acta, unless from the nature of the matter (for example, a declaration of divine right) they bind immediately, or in the law itself a shorter or longer vacancy has been specially and expressly established.⁹¹ Hence, for example, if the periodical of the Acta Apostolicae Sedis was issued on January 1, all laws published in it ordinarily do not oblige except from April 1 beginning, although perhaps they were made before January 1.

c) Episcopal laws begin to oblige immediately from promulgation, unless something else is provided in them; but the mode of promulgation is determined by the bishop himself.⁹² According to the practice now commonly in force, episcopal laws are usually promulgated by so-called pastoral letters or in the official diocesan periodical gazette. - As to the laws of other prelates, particular statutes must be attended to.

⁹⁰ Cf. our Man. iur. can. q. 19: "in acie campi Florae," that is, "at the entrance of the flower market."

⁹¹ Cod. iur. can. c. 9. Concerning the computation of time see c. 34, § 3.

⁹² Cod. iur. can. c. 335, § 2.

n. 203.

203. Acceptance a) on the part of the people is not necessary in order that human laws induce obligation. This indeed is plain of itself for ecclesiastical laws, because the legislative power of the Church by no means depends upon the people, but upon Christ himself. The same also holds for civil law, at least if these laws are just and if the so-called plebiscite is not required, as still sometimes comes into use in Switzerland. But the reason is that otherwise all authority of laws would collapse and the subversion of the social order would follow. Hence Alexander VII condemned proposition 28: "The people do not sin, even if without any cause they do not receive a law promulgated by the prince."⁹³ - It is plain of itself that the people neither ought nor can accept human laws which injure natural or positive-divine right, for example, laws which persecute the Church. For it is necessary to obey God rather than men; and therefore against unjust laws of this kind the so-called passive resistance must be opposed, as was already said above in n. 181. But even when other laws are promulgated which to the sounder part of the people seem not suitable to the circumstances of affairs, appeal can be made to the legislator, and meanwhile the obligation of the law is suspended from the presumed consent of the legislator.

b) Laws of the Supreme Pontiff do not even depend on acceptance by the bishops; for the Pope has supremacy not only of honor, but also of jurisdiction in the whole Church. Nevertheless, if at some time a bishop reasonably thinks that in his diocese, on account of singular circumstances existing there, some new pontifical law would cause true harm, he can for a time refrain from publication of that law; then, however, he must as quickly as possible seek an authentic explanation in the Roman Curia. "Nor," as Benedict XIV says,⁹⁴ "have the Roman Pontiffs ever refused to lend an ear to the reasons of inferiors; and as often as they recognized these to be sufficiently valid, they by no means refused to exempt some provinces or dioceses from the law of their general Constitutions, as to that kind of discipline concerning which we now treat." - Since any good bishop having union with the Apostolic See is not to be presumed a disobedient son of the Church, the priests and faithful of the diocese are excused from the observance of some new pontifical law which the bishop has not yet published in his diocese. This indeed can especially have a place in liturgical law; for example, in some places songs are still sung in the vernacular language during Mass or sacramental Benediction, although this is prohibited by common law.

⁹³ Billuart discusses the acceptance of law broadly and well (diss. 3, a. 3). Cf. also St. Alphonsus, Theol. mor. l. 1, n. 138.

⁹⁴ De syn. dioec. l. 9, c. 8, n. 3.

n. 204.

204. c) Finally, no ecclesiastical laws (neither pontifical nor episcopal) need acceptance on the part of the civil government. For the Church is a perfect society, autonomous and altogether independent from civil government. Whence the Vatican Council⁹⁵ strenuously declared: "We condemn and reprobate the opinions of those who say that this communication of the supreme head with pastors and flocks can licitly be impeded, or who render the same subject to secular power, so that they contend that those things which are established by the Apostolic See, or by its authority, for the governance of the Church have no force and value unless they are confirmed by the approval of secular power." Therefore the "royal approval" is required neither for promulgation nor for acceptance of an ecclesiastical law. But sometimes in Concordats entered into with civil governments the Church has conceded to the power of the republic some right of intervening even in ecclesiastical matters, for example, in the election of bishops, in the administration of ecclesiastical goods, etc.

⁹⁵ Sess. 4, c. 3 (Denz. n. 1829). Cf. Pius IX, encyclical Quanta cura of December 8, 1864; prop. 28 of the Syllabus: "It is not lawful for bishops, without the permission of the government, even to promulgate the apostolic letters themselves" (Denz. n. 1728).

Vol. I, Pt. I, Tr. III, Ch. III, Art. VIII, § 1. On the Cessation of Obligation Because of Impotence

n. 235.

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.

n. 236.

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.

n. 237.

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.

Vol. I, Pt. I, Tr. III, Ch. III, Art. VIII, § 2. On the Cessation of the Obligation of Law by Dispensation

n. 238.

238. Notion of dispensation.³⁹ According to the primitive notion, dispensation (oikonomia) is an equitable distribution of a common thing to individuals according to each one's necessity.⁴⁰ But since it pertains to prudent administration sometimes from benignity to remit something otherwise owed, hence dispensation is wont to signify some remission of obligation. But dispensation of law can be defined: the relaxation of a law, or of its obligation alone, made in particular cases by competent authority from a special and sufficient cause.⁴¹ Therefore the effect of dispensation is to take away in particular cases either the law itself or at least its obligation. Dispensation properly so called is always an act of jurisdiction and not of domination nor of knowledge alone; and therefore one who lacks ecclesiastical jurisdiction, as for example a superioress, cannot properly grant an ecclesiastical dispensation. To declare the notion of dispensation more clearly, it is useful to compare it with similar acts. Therefore dispensation differs:

1. from epikeia, since it is not done by a legitimate superior, but by the subject himself judging that some act is not comprehended under the law;

2. from license, which has a much broader signification than dispensation. Anyone who freely disposes of that thing whose use is sought can concede license. Thus a master gives a servant license to make a journey; thus a father gives a son license to use some thing, etc. There is given a presumed license, but there is not given a presumed dispensation; unless, however, someone in an improper sense wished to call epikeia a presumed dispensation;

3. from declaration, by which a superior or some other learned man declares that in some determined case the law does not oblige. For suitable knowledge is required and suffices for a licit declaration; but for a licit dispensation jurisdiction is required besides;

4. from invalidation, by which a superior from dominative power either annuls or suspends some obligation of a subject; for example, a husband can indeed invalidate, but not dispense, the vows of his wife.

5. from privilege, which indeed of itself is perpetual and constitutes a true private law, while on the contrary dispensation (at least ordinarily) is temporary and lacks the character of law.

³⁹ Both in ancient and in modern times rather many things have been written concerning the notion of dispensation, but nevertheless not small ambiguities and confusions concerning this notion still exist. This indeed seems to come from the fact that dispensation is not always taken in the same sense in diverse matters, nor was it so taken in past times. Authors speak in one and the same tenor concerning dispensation in fasting, in matrimonial impediments, in ratified marriage, in irregularities, in vows, etc.; and nevertheless it is clearer than light that, for example, dispensation of ratified marriage is altogether something other than dispensation of fasting or abstinence. For by means of dispensation a ratified marriage is wholly destroyed and taken away, so that each spouse can freely enter into a new marriage; but by means of dispensation the law of fasting or abstinence is by no means taken away, but, while it remains, only its obligation in a particular case is suspended. Cf. Corradus Pyrrhus, Praxis dispensationum; Thomassinus, Vetus et nova disciplina P. II, l. 2, c. 72; Stiegler, Dispensationswesen, Dispensationsrecht, Mainz 1901.

⁴⁰ Cf. Gen. 43, 16-19; Luke 12, 42.

⁴¹ Cf. Cod. iur. can. c. 80.

n. 239.

239. Divisions. There are several divisions of dispensation, which nevertheless we do not all bring forward for the sake of brevity. For a fuller doctrine, the canonists can be consulted. Chiefly there are distinguished:

1. Valid and invalid dispensation, according as it really produces the intended effect, or not.

2. Licit or illicit dispensation, according as it is clothed with all conditions, even accidental ones, required by law, or according as some accidentally and not essentially required things are lacking to it.

3. Subreptitious and obreptitious dispensation, according as in the petition for dispensation something true which had to be manifested was concealed, or also something false was declared.⁴² But by some ancient authors subreptitious and obreptitious dispensation are taken promiscuously for every dispensation which has been obtained in a not sincere manner.⁴³

4. Express and tacit dispensation, according as it is expressed in clear words, or is deduced from some fact. Some authors call tacit dispensation implicit dispensation.

Since the present matter of dispensation often comes into use in ecclesiastical practice, we shall discuss it a little more fully, nevertheless omitting several things which pertain to matrimonial dispensations, concerning which discussion will be below in the treatise on marriage.

⁴² Cf. Cod. iur. can. c. 42.

⁴³ Cf. Ferraris, Prompta Bibl., word "Rescriptum" n. 29.

n. 240.

240. Author of dispensation. "Dispensation ... can be conceded by the maker of the law, by his successor or superior, and also by him to whom they have conceded the faculty of dispensing."⁴⁴ The legislator himself or his delegate can concede dispensations; for he who freely made the law can also in a particular case remit the obligation of the law, either by himself or through his delegate.⁴⁵ It is plain of itself that the successor or superior of the legislator has the same power. The legislator, or his successor or superior, is said to dispense by proper authority. But all others cannot dispense except by delegated authority; and this, if by law or legitimate custom it is attached to some office, is wont to be called quasi-ordinary authority, or power, or jurisdiction. Thus, for example, a pastor is said to dispense by quasi-ordinary authority in lighter ecclesiastical laws, as in abstinence to be observed on some determined day.

⁴⁴ Cod. iur. can. c. 80.

⁴⁵ Cf. St. Thomas, S. theol. I-II, q. 97, a. 4.

n. 241.

241. The Supreme Pontiff can dispense 1. in absolutely all ecclesiastical laws; 2. in divine law, in which divine right, as it were, arises from human will, such as vows, a promissory oath, a ratified marriage.

That the Supreme Pontiff can dispense in all ecclesiastical laws is certain; for "the Pope has the fullness of power in the Church, namely in such a way that whatever things have been instituted by the Church or by the prelates of the Church are dispensable by the Pope."⁴⁶ - In ancient times some thought that the Pope was not above an ecumenical Council; but this doctrine is false, and already Sixtus IV condemned the proposition of Peter de Osma: "The Pope cannot dispense in the statutes of the universal Church."⁴⁷

That the Pope cannot properly dispense in some divine law is asserted by many. Thus St. Thomas also⁴⁸ says: "But concerning those things which are of divine right or natural right, [the Pope] cannot dispense." - Nevertheless it is certain that the Pope dispenses and can dispense in a ratified marriage; it is likewise certain that a ratified marriage is a true sacrament and indissoluble by divine right. Therefore the Pope dispenses in divine law. Since these things are so, authors now speak in this way concerning the power of the Supreme Pontiff: The Pope cannot dispense in absolute divine law, for example, concerning the number, matter, and form of the sacraments; and St. Thomas must be understood concerning this absolute law if, with many old authors, he denies the faculty of dispensing in divine law. But the Pope can sometimes dispense in divine right which is founded upon some human fact, for example, upon matrimonial consent given, upon a vow emitted.⁴⁹

⁴⁶ St. Thomas, Quodlib. 4, a. 13.

⁴⁷ Denz. n. 731.

⁴⁸ Quodlib., l. c. Ferraris (Prompta Bibl., word "Dispensatio" n. 19) calls this opinion almost common, for which he cites several grave authors. Cf. also St. Alphonsus, Theol. mor. l. 1, n. 189.

⁴⁹ Cf. above n. 164.

n. 242.

242. Bishops and other local Ordinaries can dispense:

1. In all particular laws and statutes of their territory. For the bishop alone is the proper legislator of those laws, even if they were made in a diocesan synod. But a legislator can by proper authority dispense in his own law. Certainly if some diocesan law has been approved by the Supreme Pontiff, and indeed not in common form, but in specific form, now it cannot be dispensed by the bishop, because it has obtained the special sanction of the Pope. - But laws of a plenary or provincial Council are held as superior with respect to bishops, who therefore cannot dispense in them except in a particular case, or if this has been conceded to them expressly or tacitly.⁵⁰

2. Also in common laws of the Church which are wont to be dispensed by the Holy See, provided there is question a) of a particular case of urgent necessity in which previous recourse to the Holy See is difficult;⁵¹ or b) of cases frequently occurring in matters not so grave, as, for example, in the law of fasting and abstinence; or c) of a doubtful law, if it is a doubt of fact. But in a doubt of law the law now does not oblige.^51a

3. In all those common laws in which the faculty of dispensing is conceded to bishops by the law itself, for example, in irregularities and suspensions arising from an occult delict, except that which arises from voluntary homicide, and except others brought to the contentious forum.⁵²

Not only by ordinary, but also by proper authority, a bishop can dispense in the particular laws of his diocese; for then he dispenses in his own law. But in the common laws of the Church a bishop cannot dispense by proper authority, as is plain of itself; nevertheless he dispenses by quasi-ordinary power in the cases indicated under n. 2 and 3, because by written or customary law itself such a faculty of dispensing has been conceded to him. Discussion of those individual cases will return in their own places. - The Gallicans and Febronians taught that a bishop can simply dispense his diocesan subjects in every ecclesiastical law, but this is false, since it lacks solid foundation and is repugnant to the constant doctrine and practice of the Holy See.⁵³

By specially delegated authority bishops can sometimes exercise very ample faculties of dispensing. But how far those faculties extend must be seen from the particular pontifical rescripts.

⁵⁰ Cod. iur. can. c. 291, § 2.

⁵¹ Ibid. c. 81.

^51a Ibid. c. 15.

⁵² Cf. Council of Trent, sess. 24, c. 6 de reform. Cf. Cod. iur. can. cc. 990, 1043, 1045, 1245, 2237.

⁵³ Cf. epist. of Pius VI to the bishop of Trier, a. 1782.

n. 243.

243. Religious superiors in exempt clerical institutes, by ordinary authority, can dispense in the laws and statutes of their own institute. The approved statutes of each institute must be seen. As to common ecclesiastical laws, generally it can be said that those exempt religious superiors (even local ones), since with respect to their own subjects they have quasi-episcopal jurisdiction, possess for their subjects the same ordinary power (but not delegated power) of dispensing by which bishops enjoy for their diocesan subjects. But as to the observance of feast days, abstinence, and fasting, those superiors cannot dispense all subjects together, but only individual ones.⁵⁴

⁵⁴ Cod. iur. can. c. 1245, § 3.

n. 244.

244. Pastors by ordinary authority can grant no dispensation in ecclesiastical law.⁵⁵ Nevertheless, since they have quasi-ordinary jurisdiction, ecclesiastical law attributes to them the faculty of dispensing in individual lighter cases, for example, in fasting, in abstinence, in servile works prohibited on a feast day, individual faithful subject to them, indeed even individual families, but not the whole parish together.⁵⁶ The scope of this faculty is wont to be determined either from legitimate custom or from diocesan statutes. When danger of death is urgent, or in another urgent case, pastors also have an ample faculty of dispensing in matrimonial impediments, as will be said below III, n. 859-860.

⁵⁵ Ibid. c. 83.

⁵⁶ Ibid. c. 1245, § 1.

n. 245.

245. Confessors can dispense in more urgent occult cases in which the Ordinary cannot be approached and danger of grave damage or infamy is imminent: 1. concerning all irregularities arising from delict, except a) an irregularity which has arisen from voluntary homicide or from procuration of abortion; b) an irregularity brought to the judicial forum. But this dispensation is limited to the exercise of an order received and therefore does not extend to receiving orders;⁵⁷ 2. concerning the observance of a vindictive penalty,⁵⁸ with the burden, however, of having recourse within a month to the competent superior. But if this recourse is morally impossible, the confessor can dispense absolutely; 3. concerning all matrimonial impediments introduced by ecclesiastical law, with two excepted, namely those which arise from the order of sacred priesthood and from affinity in the direct line, if that affinity arose from a consummated marriage.⁵⁹ Indeed, when danger of death is urgent, the confessor can, for the internal forum in the act of sacramental confession, dispense even from public impediments and from the form to be observed in the celebration of marriage, as will be said more broadly below III, 859.

In more urgent cases confessors also have an ample faculty of absolving from censures, as will be said in the treatise on censures. But this is not dispensation, but absolution.

Religious confessors who have the privileges of the Mendicant orders, by delegated authority, can besides dispense: 1. In all vows, except a) solemn or even public vows, that is, all public vows emitted⁶⁰ in some order or in some approved religious congregation; b) vows principally emitted in favor of a third party; c) the following two vows: of perfect chastity, and of entering an approved religion with solemn vows. It must be noted, however, that dispensation of these two vows is then only reserved if they are vows altogether absolute, certain, perfect, and emitted after the completed eighteenth year of age.⁶¹ Therefore if they are conditioned, penal, or not so certain, they can be dispensed by regular confessors. Hence, for example, if a girl in illness vowed that she would enter the order of Poor Clares if she recovered health, she can from a reasonable cause be dispensed from this vow by a regular confessor, since that vow depends on the condition of health to be recovered.⁶² - 2. In a promissory oath, and indeed whether it is joined with a vow or not.⁶³ - Also in a simple vow of perfect chastity, when immediately before marriage one or other of the betrothed declares that vow in confession, and there is no time available for obtaining dispensation from the competent authority. Thus the opinion today is certain, since in such an urgent case every confessor can dispense from that impediment of marriage.

⁵⁷ Ibid. c. 990, § 2.

⁵⁸ Ibid. c. 2290.

⁵⁹ Ibid. c. 1045.

⁶⁰ If some religious has made private vows, for example, to recite the Rosary daily, he can be dispensed by a regular confessor.

⁶¹ Cod. iur. can. c. 1309.

⁶² Some authors, among whom especially is Concina (Theol. christ. l. 4 in Decal., diss. 3, c. 11, n. 16), deny that regular confessors can dispense in vows. They concede only that they can commute vows. Ger. Oesterle, O.S.B., refutes this opinion very well in a learned way in Theologie und Glaube 1911, 389 sqq. and shows the opposite opinion to be safe in practice. (Cf. St. Alphonsus, Theol. mor. l. 4, n. 257, and below in the treatise on vows II, 423.)

⁶³ Cf. Noldin, De praecept. n. 253.

n. 246.

246. Note 1. Whoever has ordinary (or quasi-ordinary) power of dispensing can subdelegate it to others, unless something else is expressly provided by law. - An ample faculty of dispensing is conceded to all confessors in the so-called "Little Page of the Sacred Penitentiary," which can be obtained rather easily.

Note 2. When a just cause of dispensation exists, the superior not only can, but also sometimes must, concede dispensation. For either law, or justice, or charity can demand this. Thus, for example, a bishop must dispense from interstices if there is a great scarcity of priests and otherwise the common good would be harmed (legal justice demands this). Likewise a bishop must dispense in vows if otherwise the one vowing would be situated in grave danger of salvation (charity demands this); he must dispense in matrimonial banns if otherwise great damage or scandal would arise (justice demands this).

n. 247.

247. The subject of dispensation is all those who are subject at least in some way to the jurisdiction of the one dispensing. For dispensation, as was said above, is an act of jurisdiction, which cannot be exercised except upon subjects (to whom the unsettled are reckoned).⁶⁴ Hence, for example, a bishop (or pastor) can dispense with his subjects even when they are staying outside his own territory for a time. For they remain in some way subjects and nothing prevents dispensation from being conceded to the absent.⁶⁵ - But it is said: those who in some way are subject to the jurisdiction of the one dispensing. For full subjection is not required; hence, for example, a superior in an exempt clerical religious institute can dispense in fasting and abstinence even all those who dwell day and night in his religious house, such as servants, students, etc. A special difficulty arises concerning dispensation to be granted to travelers, exempt religious, and the one dispensing himself. But according to all authors, for obtaining dispensations the unsettled must have recourse to the superior of the place in which they are here and now staying.

⁶⁴ Cod. iur. can. c. 94, § 2.

⁶⁵ Ibid. c. 207, § 3.

n. 248.

248. Travelers cannot be dispensed in common laws by the superior of the place where they are staying. For they are not properly subjects. Thus at least of itself. But in several cases travelers can receive dispensations of common law, just as inhabitants, as will be said in the proper places. Hence generally: In lesser cases, for example, in fasting, in observance of feasts, in abstinence, etc., the bishop, pastor, or even confessor (from delegation of the bishop) can from a reasonable cause dispense travelers.⁶⁶

⁶⁶ Cf. St. Alphonsus, l. c. l. 1, n. 158; Cod. iur. can. c. 1245.

n. 249.

249. Exempt religious, according to the present discipline of the Church, can almost be dispensed by the Ordinary of the place like others living in the territory.⁶⁷ The reason is that otherwise those religious would be in a worse condition than the common faithful; and their exemption would turn not to their advantage, but rather to their detriment. This indeed is against Rule 61 of Law in VI: "What is conceded for the grace of someone is not to be turned back to his loss."⁶⁸ It must be noted, however, that exempt religious cannot seek dispensations from the Ordinary of the place unless previous permission of their own superior has been had. For he who seeks dispensation places himself (at least for this case) under the jurisdiction of the one dispensing. Moreover an exempt religious is prohibited, without previous legitimate permission, from placing himself under the jurisdiction of the local Ordinary.

⁶⁷ Cod. iur. can. c. 620.

⁶⁸ Thus also teach Vermeersch, De relig. instit. I, n. 382; Noldin, De princ. n. 183; Lehmkuhl, Theol. mor. I, 261.

n. 250.

250. The one dispensing himself, unless he has a power of dispensing limited to a certain mode or to certain persons, can also dispense with himself. Thus the common opinion. The reason is that dispensation is an act of voluntary and gracious jurisdiction, which one can ordinarily exercise upon himself. Hence, for example, a superior who can dispense his subjects in fasting can also dispense himself. If, however, the faculty of dispensing has been conceded to be exercised in the tribunal of penance alone, then certainly the one dispensing cannot dispense with himself, because no one can be judge of himself in the tribunal of penance. - In practice it is to be counseled that, for the internal forum, anyone, even the legislator himself, seek dispensation from another confessor, according to that saying: "No one is judge in his own cause."⁶⁹

Note. Since jurisdiction can be exercised even upon one absent, ignorant, and unwilling, nothing prevents dispensation from being conceded to some subject who is absent, or ignorant, or even unwilling. And thus in reality dispensation is sometimes conceded in the so-called "sanation in the root."⁷⁰

⁶⁹ Cf. S. theol. II-II, q. 185, a. 8.

⁷⁰ Cf. below III, 887.

n. 251.

251. Conditions required for dispensation. From the law of the Council of Trent,⁷¹ which thereafter was not changed, three conditions are required for legitimate dispensation: 1. a sufficient cause; 2. knowledge of that cause; 3. gratuitous concession of the dispensation.

1. Sufficient cause of dispensation. Internal and external causes, motive or final causes, and impulsive causes are usually distinguished.

Internal causes arise from the difficulty of observing the law itself in a particular case; for example, difficulty of observing the law of fasting because of grave labors.

External causes arise not from the law itself, but from the common good, for which better provision is made if in this particular case dispensation of the law is conceded. Such external causes are the dignity of the petitioner or of the superior dispensing, the payment of money for the utility of the Church. Thus, for example, because of an external cause a dispensation from some matrimonial impediment is conceded to a prince, namely because in this way the prince is bound more to the Church or because he gives a great sum of money to the poor. Such dispensations are sometimes called given "without cause," that is, without an internal cause, but not without an external cause. These external causes also are just and sufficient for obtaining dispensation. For in making laws the legislator first of all intends the common good. But it can be more useful for the common good if, although an internal cause is lacking, dispensation is conceded because of the dignity of the petitioner, than if it is refused. Therefore then the legislator or his delegate licitly concedes dispensation.

Motive or final causes are called those which by themselves alone suffice for obtaining dispensation. They are also customarily called canonical, because canon law admits them as sufficient.⁷²

Impulsive causes are those which indeed alone do not suffice, but nevertheless help for obtaining dispensation. The distinction of motive and impulsive causes often comes into use in matrimonial dispensations.

⁷¹ "Let all know that the most sacred canons are to be observed by all, and, so far as can be done, indiscriminately. But if an urgent and just reason and sometimes greater utility should demand that dispensation be made with some persons, this, the cause being known, and with the greatest maturity and gratuitously, is to be performed by whomever the dispensation will pertain to; and a dispensation made otherwise is to be judged subreptitious" (sess. 25, c. 18 de reform.).

⁷² Cf. below in the treatise on marriage, the canonical causes for obtaining dispensations concerning impediments, III, 871.

n. 252.

252. Principle. A dispensation conceded without sufficient cause is a) illicit, if it was given by the legislator himself (or his successor or superior); but it is besides b) invalid, if it was given from delegated authority.⁷³

Therefore every dispensation conceded without sufficient cause is always illicit and sometimes also invalid. The reason for the first part is that dispensation is deservedly called a "wound of the law." But just as it is not licit to inflict a wound on a man without sufficient reason, so neither is it licit to inflict a wound on the law without a proportionate cause. - Besides, just as the legislator cannot make law at his own whim, so neither ought he relax an established law without sufficient reason through dispensation. But if he acted otherwise, he would disturb the right order of society, loosen the nerve of discipline, be an accepter of persons and an unfaithful dispenser; indeed he would be rather a dissipator than a dispenser. The gravity of the sin committed by such an unfaithful dispenser is to be weighed not so much from the gravity of the law frivolously dispensed as from the detriment thereafter following either for some members of the community or for the whole community.

The reason for the second part of the stated principle is the manifest excess which is committed by the one dispensing against the will of the superior, since he is not presumed to have conceded the faculty of dispensing unless sufficient reasons are present. Therefore the delegate has exceeded the limits of the faculty obtained and consequently has dispensed not only illicitly, but also invalidly.

Gravity of the cause. The cause required for dispensing licitly is not necessarily as great as one which already of itself excuses from observance of the law. That cause suffices which, all the circumstances of the law and of the person being considered, is known to be fitting to reason, so that from the dispensation conceded both the common good is not harmed and the good of the dispensed person is increased. But which causes in individual cases are really sufficient cannot be determined by a general rule. First of all, the good and evil effects which probably will follow from the dispensation conceded must be attended to. It is never licit to concede a dispensation which would tend to the prejudice of the common good. Indeed, through dispensation the common good ought to make progress.⁷⁴ Three legitimate causes for dispensing are usually enumerated, namely: necessity, charity, utility (common or private). - If there is doubt, not indeed whether a cause exists, but whether the cause brought forward is sufficient, and that doubt persists after diligent deliberation, nevertheless the dispensation can validly and licitly be sought and conceded;⁷⁵ because otherwise many anxieties would arise, and besides, because the legislator in these circumstances is rightly presumed to concede license of dispensing. When the subject has candidly and truthfully explained to the superior all his causes for dispensing, and then has obtained the requested dispensation, now he can with safe conscience use the dispensation so obtained, unless, however, it is manifestly established that the superior dispensed frivolously without sufficient reason.

Note. Not only he who dispenses without sufficient cause commits sin, but also he who knowingly uses such a dispensation.

⁷³ Cod. iur. can. c. 84, § 1.

⁷⁴ S. theol. I-II, q. 97, a. 4 ad 1.

⁷⁵ Cod. iur. can. c. 84, § 2.

n. 253.

253. 2. Knowledge of the cause of dispensation. Not only must a sufficient cause really be present, but it must also be known by the one dispensing, since otherwise he would act irrationally. In the external forum, especially if there is question of dispensation from a public impediment of marriage, the mode of having this knowledge is wont to be determined accurately and is called "verification of petitions"; but in the internal forum it suffices that the one dispensing have in whatever way moral certitude concerning the existence of a sufficient cause for dispensing. Authors dispute whether this knowledge of the cause is prescribed for the validity or only for the liceity of the dispensation to be imparted. St. Alphonsus⁷⁶ calls the opinion more probable which teaches that the value of the dispensation depends not on knowledge, but on the existence of a sufficient cause. This opinion indeed is safe in practice, unless, however, from the very words of the faculty of dispensing conceded, it clearly appears that knowledge of the cause is required as a condition sine qua non.⁷⁷

⁷⁶ Theol. mor. l. 1, n. 181.

⁷⁷ Cf. below in the treatise on marriage, III, 881.

n. 254.

254. 3. Gratuitousness of dispensation. It would be pure and foul simony if for the dispensation itself in ecclesiastical laws something material were demanded as a price. Nevertheless it is licit to demand some remuneration for the expenses of the Chancery; for it is very fitting that he who seeks dispensation pay the expenses necessary for the writer and dispatch of the dispensation. Besides this sum of money, which is wont to be called the tax (to which there is also added the "agency"), sometimes the so-called "composition" is imposed, which is money to be paid for pious uses or as a fine because of the wound which through dispensation is inflicted upon the law.⁷⁸ Ordinaries or their Officials who, on the occasion of a dispensation conceded, demand any emolument are held to restitution.⁷⁹

⁷⁸ Cf. below concerning matrimonial dispensations III, 876.

⁷⁹ Cod. iur. can. c. 1056.

n. 255.

255. Defects of dispensation. There are indeed many things⁸⁰ which can vitiate an acquired dispensation, both on the part of the one dispensing and on the part of the one dispensed, but concerning several of them discussion has already been had above. It remains to speak of two defects, namely 1. concerning error and 2. concerning fear.

⁸⁰ All defects of dispensation can be reduced to three species, namely to defect of jurisdiction, of justice (if a just cause for dispensing is lacking), and of will (if error or fear is present in the one dispensing).

n. 256.

256. 1. Error or deception arises in the one dispensing either from the fact that something false is narrated to him, or from the fact that something true which had to be manifested is kept silent in the petition of dispensation. Error can concern the object, subject, motive, and mode of dispensation. A dispensation obtained through the narration of some false motive is called obreptitious; but if it has been obtained through silence about some true thing necessarily to be manifested, it is called subreptitious.⁸¹ A dispensation, whether obreptitious or subreptitious, is generally invalid and void.⁸² The reason is that, generally speaking, the legislator or his delegate is not presumed to will to dispense with deception or error. Hence, for example, if a dispensation has been conceded concerning the diriment impediment of consanguinity in the second degree because it was asserted that conceived offspring had to be legitimated, this dispensation is invalid and void if the assertion was false. Some species of subreption also seems to be present if someone seeks from one superior of almost the same authority a certain grace denied by another superior. Hence the Code of Canon Law cc. 43 and 44 establishes: "A grace denied by one Sacred Congregation or Office of the Roman Curia is invalidly conceded by another Sacred Congregation or Office, or by the local Ordinary, even one having power, without the assent of the Sacred Congregation or Office with which, or with whom, dealing was begun, with the right of the Sacred Penitentiary for the internal forum remaining safe. Let no one seek from another Ordinary a grace denied by his own Ordinary, no mention having been made of the denial. - A grace denied by the Vicar General and afterward obtained from the bishop, no mention having been made of this denial, is invalid; but a grace denied by the bishop cannot validly be obtained from the Vicar General, even when mention has been made of the denial, without the bishop consenting."

But in the following cases a dispensation remains valid, even if obreption or subreption has been used:

a) If the dispensation was conceded motu proprio, at least if one final cause was true.⁸³ For the things which are conceded motu proprio are not conceded on account of petitions presented, as is apparent from the words themselves. Therefore it makes no difference what motive of dispensation is contained in the petitions presented. - Indeed, even if the sole final cause is lacking, dispensations concerning lesser diriment impediments of marriage are valid according to the discipline now in force, namely concerning the impediment 1. of consanguinity in the third degree of the collateral line; 2. of affinity in the second degree of the collateral line; 3. of public propriety in the second degree; 4. of spiritual relationship; 5. of crime from adultery with promise or attempted celebration of marriage.⁸⁴

b) If the error concerns merely accidental circumstances of object and subject, or only impulsive causes, provided, however, that a true sufficient cause for dispensing exists and at least the substance of the subject and object has been rightly designated. For the Code of Canon Law c. 42, § 2 establishes: "Nor does the exposition of what is false, or obreption, stand in the way, provided either the sole cause proposed or, from several proposed, at least one motive cause is true"; and c. 47: "Rescripts are not made void because of error in the name of the person to whom or by whom they are conceded, or of the place in which he resides, or of the thing concerning which there is question, provided that, in the judgment of the Ordinary, there is no doubt concerning the person or thing itself." Therefore the old adage, "A lying petitioner ought wholly to lack what has been obtained," is restricted to the case in which the lie has been made in an essential part of the sole final cause.

⁸¹ Cf. above n. 239.

⁸² Cf. c. 7, X, 2, 22; c. 2 in VI, 1, 11.

⁸³ Cf. Cod. iur. can. c. 45.

⁸⁴ Ibid. cc. 1042 and 1054.

n. 257.

257. 2. Light fear does not harm the validity of a dispensation obtained. Thus all. Whether grave fear unjustly inflicted for obtaining a dispensation invalidates this dispensation is disputed. Some affirm. For it is repugnant to natural right itself that someone be freed from the obligation of law because of unjust force inflicted upon a legitimate superior. Others rightly deny. For the general rule is: "Acts placed from grave and unjustly inflicted fear are valid, unless something else is provided by law."⁸⁵ But in law nothing is provided concerning a dispensation extorted by fear (unless there is question of a dispensation remitting a penalty, c. 2238).

⁸⁵ Cod. iur. can. c. 103, § 2; cf. Concina, Theol. christ. de iure nat. et gent. diss. 6, c. 5, § 7, n. 5; St. Alphonsus, Theol. mor. l. 1, n. 184.

n. 258.

258. Cessation of dispensation. Concerning this matter the Code of Canon Law c. 86 establishes: "A dispensation which has successive duration ceases in the same ways as a privilege, and also by the certain and total cessation of the motive cause." How privileges cease will be said below, n. 268. A dispensation which does not have successive duration, namely one which is completed by a single act, cannot cease once it has produced its effect, according to that adage: a fact cannot be made not done. Other dispensations can cease in three ways: 1. on the part of the one dispensing; 2. on the part of the one dispensed; 3. on the part of the final cause.

n. 259.

259. 1. On the part of the one dispensing, dispensation ceases a) by revocation; b) sometimes also by his death.

a) As to revocation, these things must be noted: He who has dispensed by proper authority can always validly revoke the dispensation conceded, provided every obligation has not been extinguished by the prior dispensation. For he who by proper authority freely suspends some obligation can also impose it again. Thus, for example, the Pope can revoke a dispensation given concerning the law of fasting. If, however, the matter dispensed has already lost every obligation, revocation can no longer be made. Thus, for example, the Pope cannot revoke a dispensation conceded concerning a ratified marriage, since what has once been dissolved and destroyed cannot revive. - He who conceded a dispensation from delegated authority cannot revoke it without a sufficient reason; for just as he could not validly or licitly concede a dispensation without a sufficient reason, so neither can he validly or licitly revoke it once conceded without a sufficient reason. But the reason is that the power of one dispensing from delegation is bound to only licit use. But someone uses his power illicitly if he does not act from a sufficient and reasonable cause. Therefore neither can the legislator himself, or anyone who has dispensed from proper authority, licitly revoke without sufficient reason a dispensation conceded.

b) By the death of the one dispensing or cessation in office, a dispensation generally does not cease; but it ceases if it was conceded by the following or similar formulas referring to the very person of the one conceding: "at our good pleasure,"⁸⁶ "at our judgment," "until it shall have pleased"; on the contrary it does not cease if it is conceded by the following or a similar formula: "until revocation," because revocation has not in reality been made.

⁸⁶ Cod. iur. can. cc. 86 and 73.

n. 260.

260. 2. On the part of the one dispensed, dispensation ceases by renunciation. But for this, so that the dispensed person can validly and licitly renounce the accepted dispensation, it is required: a) that from this renunciation the right of the community or of a third person not be harmed; b) that the superior have accepted the renunciation of the dispensed person. - That the dispensed person can freely renounce the dispensation obtained is easily understood. For dispensation is some benefit, which ordinarily is not imposed upon one unwilling. If, however, the dispensation or faculty conceded was conceded not only for the utility of the recipient, but also and perhaps principally for the utility of the community or of a third person, the dispensed person now cannot freely renounce the accepted dispensation, because then he would cause detriment to others. Thus, for example, a bridegroom cannot renounce a dispensation concerning an impediment of marriage if detriment would be caused to the bride from it. - But that acceptance of the superior is required for the valid renunciation of the dispensed person is clear from this, that through dispensation the obligation of the law has been extinguished. Moreover a new obligation cannot arise unless the superior consents. This consent indeed may be explicit or at least tacit or presumed. In matters of lighter moment tacit or presumed consent always suffices. Hence he who has been dispensed from the law of fasting can freely renounce the dispensation obtained from the presumed license of the one dispensing, if he can prudently fulfill the law of fasting.

By simple non-use a dispensation does not cease,⁸⁷ because non-use can consist with the intention of using the dispensation afterward. Hence if someone has been dispensed from the law of abstinence, but nevertheless for several months has abstained from eating meats, he can afterward, the sufficient cause still subsisting, again use the dispensation. Likewise, if someone, having obtained a dispensation for contracting marriage with Tullia, a blood relative in the third degree, nevertheless married Caia, he can, Caia being dead, marry Tullia. But if the dispensation is burdensome to a third person, then through voluntary non-use prescription can prevail, which finally at some point will destroy the dispensation.

⁸⁷ Cod. iur. can. cc. 86 and 76.

n. 261.

261. 3. On the part of the final cause, that dispensation ceases which was not conceded absolutely. Otherwise the dispensation remains valid. Therefore two things are required for the cessation of a dispensation: 1) That the truly final cause cease. For from the cessation of an impulsive cause the dispensation does not cease, provided some final cause remains. 2) That the dispensation was not given absolutely. A dispensation whose effect is indivisible and is at once obtained totally is judged to have been given absolutely. Certainly in practice it is not rarely very difficult to discern whether some dispensation was given absolutely, or only conditionally, namely under the condition of the cause subsisting. Hence very often doubts are wont to arise concerning the value of a dispensation, because the final cause now does not exist or has been essentially changed. To eliminate these doubts at least partially, Pius X established that in matrimonial impediments of lesser degree a dispensation always be conceded from motu proprio, and therefore in these dispensations the cessation of the final cause now does not harm the value of the dispensation obtained.⁸⁸ - But in other dispensations which have "successive duration," as it is said, when the final cause ceases, by that very fact the dispensation also ceases. Thus, for example, he who because of illness had been dispensed from the law of abstinence must, health having been recovered, again observe the law of abstinence; he who at the beginning of Lent had been dispensed from the law of fasting because of grave labors to be carried out is bound to fast if during Lent those labors have ceased. Modern authors rather commonly teach⁸⁹ that dispensations concerning impediments of marriage and concerning irregularities are conceded in an absolute mode, and therefore the dispensation remains valid if before the use of the dispensation the final cause has ceased, provided it really existed at the time of the concession itself. For example, Bertha obtained a dispensation concerning the impediment of consanguinity in order to legitimate offspring already received. At the time at which the dispensation was conceded, the offspring was living, but died before the marriage was to be contracted. Nevertheless the dispensation conceded is valid.⁹⁰ - Concerning dispensation from a vow of chastity there were special difficulties and controversies, but today this dispensation is conceded with clauses added so clear that in practice no grave difficulty any longer subsists. But it seems that in vows a dispensation ceases if before its execution the sole cause of dispensing has ceased. For no one (not even the Pope) can dispense in vows without a sufficient and really existing cause, since they are of divine right. Wherefore, for example, if Bertha bound by a vow of chastity had been dispensed for entering marriage solely for the sake of legitimating offspring, and this offspring died before celebration of the marriage, the dispensation of the vow ceases, so that Bertha remains bound by the vow and needs a new dispensation.

Territorial dispensation ceases if someone has gone out of that territory; on the contrary, personal dispensation follows the dispensed person wherever he may be. Hence, for example, a German cannot outside Germany use dispensations in the law of abstinence conceded for his fatherland; but if he received a personal dispensation in the law of abstinence, he can use it everywhere on earth. The matter is plain from what was said above n. 196 sqq. concerning the obligation of travelers.

⁸⁸ Cf. above n. 256.

⁸⁹ Thus Lehmkuhl, Theol. mor. I, n. 268; Noldin, De princ. n. 189; cf. also St. Alphonsus, Theol. mor. l. 1, n. 196.

⁹⁰ Cf. below in the treatise on marriage III, 880 and 883.

n. 262.

262. Interpretation of dispensation. 1. The faculty itself of dispensing, if it is ordinary or delegated for a universality of affairs, is to be interpreted broadly; any other strictly. Thus the Code of Canon Law c. 200, § 1. Therefore, for example, a confessor to whom a general faculty of dispensing for the internal forum has been committed can use it not only in the forum of penance, but also outside the confessional, because the internal forum is not restricted to the tribunal of penance. - Although the faculty of dispensing conceded for a certain case is to be interpreted strictly,⁹² nevertheless it also carries with it other powers which are necessary for its use; wherefore, for example, in the faculty of dispensing there is also included the power of absolving from ecclesiastical penalties, if any perhaps stand in the way, but only for the effect of obtaining the dispensation.⁹³

2. The dispensation itself is to be interpreted strictly, because it is judged to be a wound of the law.⁹⁴ Nevertheless sometimes a dispensation is to be interpreted broadly, especially in four cases: a) if it was conceded motu proprio; b) if it was conceded for the public good; c) if it was conceded to the whole community and not to a singular person; d) if it was inserted in the Code of Canon Law.⁹⁵

⁹² Cod. iur. can. c. 85.

⁹³ Ibid. c. 66, § 3.

⁹⁴ Ibid. c. 85.

⁹⁵ Cf. Lehmkuhl, l. c., n. 266.

Vol. I, Pt. I, Tr. III, Ch. III, Art. VIII, § 3. On the Cessation of the Obligation of Law by Privilege

n. ¶44.

Preliminary Note. We treat soberly and briefly of privileges, because this matter pertains rather to Canon Law than to Moral Theology. Therefore, for fuller doctrine, canonists are to be approached, and if there is question of particular privileges, before all else the Indult itself, which granted the privilege, is to be inspected.

n. 263.

263. Notion. Privilege is taken either objectively or subjectively, and again in either mode either broadly or strictly.

A privilege, taken objectively and broadly, is any particular law, whether favorable or odious; for privilege by force of the word is nothing other than a private or special law (a law of exception, Ausnahmegesetz). In this sense the rights of bishops, pastors, minors, wives, etc., can be called privileges.⁹⁶

A privilege, taken objectively and strictly, can be defined: a private law granting a special favor against or beyond common right; or more briefly: a favorable private law (a special right, Vorrecht). Therefore a privilege is a law, and accordingly it ought to have all, at least essential, conditions of law. Hence it ought to be:

1. Something stable and permanent; and therefore it is distinguished from a dispensation or indult or some grace, which for the most part is conceded not in a stable and permanent mode, but transiently.

2. Useful to the community. Although a privilege at first sight may not seem useful and favorable except to some particular person or community, nevertheless in reality it tends to the utility of the whole state or of the Church. Thus, for example, the privileges of Regulars, considered in passing, seem to be harmful to the authority of bishops and to the influence of pastors, yet in reality they serve the greatest utility of the whole Church. For without those privileges Regulars could not labor so expeditiously and easily for the salvation of the faithful, nor even assist bishops and pastors so fruitfully in procuring the salvation of souls. Likewise the privileges of clerics, namely the privileges of canon, forum, and immunity, in appearance are favorable only to clerics alone; but in reality they tend to the greatest utility of the whole Christian religion. - But if certain privileges truly were not useful to the common good, then they are called exorbitant and would have to be abrogated as soon as possible.

3. Established by him who has care of the community. Hence no one can grant a privilege properly so called except he who is the supreme legislator of some perfect and autonomous community, namely the Pope for the whole Church, the king for his kingdom, the bishop for his diocese, etc.

Note. Sometimes privilege is taken in an improper sense; and then it is nothing other than some special favor granted by a superior against or beyond common right. In this sense we speak of the privilege of a portable altar, of a private oratory, etc. In this sense also in the Code of Canon Law there are reckoned among privileges, besides the law, indults or habitual faculties (e.g., to an Ordinary), which are granted either in perpetuity or for a predefined time or for a certain number of cases.⁹⁷ - Sometimes privilege is confused with dispensation; yet this confusion is to be avoided. For every privilege properly so called is a true law, as has been said; on the contrary, dispensation is a relaxation of the law, or at least of its obligation. In the new Code there is no accurate definition of privilege.

A privilege, taken subjectively, is the faculty itself of acting according to the privilege considered objectively.

⁹⁶ Cf. c. 8, C. 9, q. 3.

⁹⁷ Cod. iur. can. c. 66, § 1.

n. 264.

264. Divisions. Very many divisions of privileges are customarily adduced, of which the more principal are the following:

1. By reason of the subject: a personal and a real privilege. The first is that which primarily and directly is granted to some person (whether physical or moral), and accordingly follows this person everywhere and is extinguished with him, for example, the privilege of reciting the Rosary in place of the Breviary. - The second is that which primarily and directly is granted to some thing, say to a place, office, dignity, etc., and by means of this thing to determinate persons. - In the likeness of real privileges are held those faculties which are customarily delegated habitually to bishops and major superiors of religious orders. Accordingly those faculties do not cease by the death or removal of the indultary.⁹⁸

2. By reason of the object: a) a favorable and an odious privilege. The first confers a grace or benefit upon the privileged person, but brings prejudice to no one, as for example the honorary privileges of certain offices. - The second is that which, by favoring one, at the same time brings an inconvenience to another (but not to the common good), for example, exemption from taxes granted to some persons; for if some are not bound to pay taxes, greater taxes are imposed upon others for paying common expenses.

b) A privilege against and beyond right. A privilege against right derogates from common right. Such a privilege is, for example, the exemption of bishops and other Ordinaries from the ecclesiastical prohibition of books (c. 1401). A privilege beyond right is that which indeed is given by no common law, but is also prohibited by no common law, as are various habitual faculties of dispensing, absolving, etc. (c. 66, § 1).

3. By reason of the motive: a gracious and a remuneratory privilege. The first is granted from the mere liberality of the superior; the second is granted as a reward and recompense for the merits of oneself, or of parents, or of blood-relatives, or of relations.

4. By reason of the mode in which it is granted: a privilege granted motu proprio or "at the instance." If the Pope in the concession of a privilege inserts the formula motu proprio, then such a privilege is a most special favor, which is of broad interpretation and is not invalidated by the defect of obreption and subreption. - But a privilege which was granted "at the instance" or "at the prayers" is to be understood and interpreted according to the petition previously presented.

5. By reason of relation to other privileges: a privilege granted "first and through itself" and "after the likeness." The first is granted without respect to a privilege otherwise given; but the second is given in that mode in which it has already been granted to another. But a privilege "after the likeness" is again twofold: equally principally and relatively. A privilege is granted equally principally if it is bestowed just as if it had been granted first and through itself. Therefore such a privilege is not judged revoked, although another privilege, after the likeness of which it had been granted, has been abolished. A privilege is said to be granted relatively if it is communicated because of the connection which the privileged person has with others who already before had been privileged. This distinction of privileges indeed was often used in antiquity in the so-called communication of privileges; but according to present discipline it is no longer of so great practical value.

⁹⁸ Cf. S. Off. d. 24 Nov. 1897; 20 Apr. and 23 June 1898; 3 May and 20 Dec. 1899; Cod. iur. can. c. 66, § 2.

n. 265.

265. Acquisition of privileges. Privileges can be acquired in a threefold mode: 1. by direct concession; 2. by communication; 3. by prescription or custom.⁹⁹

1. No one can directly grant some privilege except he who has the power of making laws;¹⁰⁰ for a privilege is a private law, as was said above. Hence those things which are necessary for establishing laws are also required for the direct concession of privileges.¹⁰¹

2. By communication those privileges are acquired which are granted to some moral person or to some state, with which another moral person or institute has the so-called communication of privileges by force of some Pontifical indult. Among approved religious Orders there existed a most ample communication of privileges, and accordingly privileges which had been granted by the Supreme Pontiffs to one Order were by that very fact judged to be given also to other Orders; unless, however, in some particular case the Supreme Pontiff had expressly declared that the privilege granted was not communicable. For the future such communication of privileges among religious Orders is excluded.¹⁰² - To treat of the communication of privileges pertains rather to canonists than to moralists. - In these most recent times the Roman Curia seems more and more to limit the communication of privileges.

3. By prescription or custom a privilege is acquired, just as by that means also some law is abrogated.¹⁰³ Hence those conditions are required for the acquisition of privileges which are necessary for the abrogation of some law.¹⁰⁴ Centenary or immemorial possession induces the presumption of a privilege granted.¹⁰⁵

⁹⁹ Cod. iur. can. c. 63.

¹⁰⁰ Certainly bishops also and other prelates having legislative power can grant privileges in their own laws, but according to modern discipline almost only the privileges of the Supreme Pontiff are of practical moment.

¹⁰¹ Cf. above n. 143.

¹⁰² Cod. iur. can. c. 613, § 1.

¹⁰³ Cf. c. 9, X, 1, 31; c. 26, X, 5, 40.

¹⁰⁴ Cf. below n. 275 sqq.

¹⁰⁵ Cod. iur. can. c. 63, § 2.

n. 266.

266. Interpretation of privileges. All those things are to be applied which above, n. 229 sqq., were said concerning the interpretation (and dispensation) of law. Generally it can be said: A privilege is worth as much as it sounds, or as the Code of Canon Law c. 67 says: "A privilege is to be estimated from its own tenor, nor is it permitted to extend or restrict it." But if some doubt arises, then privileges are to be interpreted broadly, if they are a) favorable, b) remuneratory, c) granted motu proprio, d) given to some Order or religious community, e) if they are contained in the Code of Canon Law. - But privileges are to be interpreted strictly, if they are odious.¹⁰⁶

¹⁰⁶ Ibid. c. 68.

n. 267.

267. Non-use of privileges. 1. Purely personal and favorable privileges, i.e., those which tend solely to the utility of the privileged person alone, can be freely renounced or not employed in practice, unless an obligation arises from another head.¹⁰⁷ The reason is that favors are not to be forced upon persons, nor ought they to be a burden. Hence, for example, an infirm priest, who cannot go out from home to celebrate and therefore has received the privilege of establishing a private oratory, is not bound to establish it, in order that on days of precept he may celebrate; indeed, if he has already erected an oratory, in rigor he is not bound, according to some theologians, to celebrate there on those days, but is excused from celebrating Mass,¹⁰⁸ provided, however, that there is present a reasonable cause of not using the privilege.

2. Privileges which are favorable to a community, or which are granted to some state, cannot be licitly and validly renounced by an individual person.¹⁰⁹ Hence, for example, a cleric cannot for his own person renounce the privilege of canon granted to the clerical state;^109a nor can a Religious renounce the privileges of his Order. The reason is that privileges of this kind in no way depend on the free choice of an individual man, and their renunciation or even non-use would tend to the detriment of the community. - Likewise a confessor having the privilege of absolving from reserved cases is bound to use it toward a penitent rightly disposed. For a penitent rightly disposed and confessed has a right to absolution, and accordingly the confessor is bound to absolve him, if he has the faculty of absolving. The matter is otherwise if the confessor judged that, by delay of absolution and the necessity of recurring to the superior, the penitent would be more efficaciously deterred from relapse. Then he can laudably abstain from the use of his privilege. But deservedly Lehmkuhl says:¹¹⁰ "But in practice it can often be doubted whether such a remedy helps, since on the contrary it can harm."

3. By non-use a purely favorable privilege never ceases; but, after the time required for the prescription of laws has elapsed, a privilege which is opposed to the right of others ceases.¹¹¹

¹⁰⁷ Ibid. c. 69 and 72.

¹⁰⁸ Thus Noldin (De princ. n. 195) after Lehmkuhl (Cas. consc. I, n. 128 sqq.), who nevertheless rightly with St. Alphonsus (Theol. mor. l. 3, n. 324) limits this opinion to ecclesiastical law alone. For if such a priest for a long time could not celebrate Mass outside the house, but could at home, he would be bound to use his privilege, because by divine law he ought sometimes to celebrate or at least to hear Mass. Below II, 485, discussion of this matter will return.

¹⁰⁹ c. 12, X, 2, 2; c. 36, X, 5, 39. Cod. iur. can. c. 72, § 3.

^109a Cod. iur. can. c. 123.

¹¹⁰ Cas. consc. I, n. 132.

¹¹¹ Cod. iur. can. c. 76.

n. 268.

268. Cessation of privileges. Privileges from their nature (like laws) are judged perpetual,¹¹² but they can cease in many ways, for example, through revocation legitimately made by a superior, through renunciation by the privileged person accepted by the competent superior, through cessation of the cause on account of which they were given, through the death of the privileged person, through the complete destruction of the thing to which the privileges were attached, through abuse, through prescription made against them. - There is no leisure here to treat of all these, both because this matter pertains to Canon Law, and because in individual matters it is better to treat of the cessation of privileges. Especially concerning the revocation of privileges, concerning its possibility, quality, and extension, canonists discuss at great length and in many things do not agree.¹¹³ Briefly we note the following:

1. Privileges which by force of a Concordat were granted to some kingdom are never judged revoked, unless this has been said in express words. For Concordats (at least those entered into recently between the Holy See and various governments) take on the character of a bilateral pact,¹¹⁴ which indeed, alas, is not rarely violated by civil governments; but which is never injured in an undue mode by the Holy See. Accordingly the Holy See is not judged to revoke concessions made, unless this is expressly said. Therefore new laws do not revoke privileges granted by force of Concordats.¹¹⁵

2. According to the current discipline of the Roman Curia, every preceding privilege (granted outside a Concordat) is revoked if some contrary law is made absolutely and universally.¹¹⁶ Hence, for example, by the Decrees of the S. C. on Religious given on 3 February and 5 August 1913 concerning the confession of religious, all whatsoever previous privileges are judged revoked. Besides, for greater clarity and security new laws are accustomed to contain most general derogatory clauses, for example, "notwithstanding any privileges whatsoever, even those worthy of special mention." In ancient times some institutes and religious places obtained an Indult by force of which their privileges could never be revoked unless mention had been made of them word for word in the revocation. These indeed today seem to be obsolete (unless, however, there is question of liturgical law).

3. Real privileges cease through the absolute destruction of the thing or place; but local privileges, if the place is restored within fifty years, revive.¹¹⁷ A personal privilege follows the person and is extinguished with him,¹¹⁸ for example, the personal privilege of a domestic oratory.

¹¹² Ibid. c. 70.

¹¹³ See Joan. Crus, De statu relig. 2, c. 3.

¹¹⁴ Cf. our Manuale iur. can. q. 24.

¹¹⁵ Cod. iur. can. c. 3.

¹¹⁶ Ibid. c. 4 and 71.

¹¹⁷ Ibid. c. 75.

¹¹⁸ Ibid. c. 74.

…and 13 more passages — all of them are listed on the topic page.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 1 passage

Vol. I, Tr. III, Pt. II, Chapter III. On Ecclesiastical Law

n. 110.

An ecclesiastical law is said to be one which is made by ecclesiastical power for the right governance of the Church and the eternal salvation of souls. - But the collection of various ecclesiastical laws constitutes canon law.

The body of canon law consists of six parts, constituting three volumes. They are: the Decree of Gratian, the Decretals, the Sext, the Clementines, the Extravagants of John XXII, and the Common Extravagants. Therefore:

I. The first part contains the Decree of Gratian, so called from Gratian, a Benedictine monk, collected and published in the year 1151 under the title: The Concordance of Discordant Canons. The work is distributed into three other parts, of which the first treats of ecclesiastical persons, the second of actions or of the matter and form of judgments, and the third of sacred things. - The first of these three parts is divided into one hundred and one distinctions, which are subdivided into chapters or canons; thus they are usually indicated: cap. Jejunium 7, dist. 76; or also: dist. 76, cap. 7. - But the second part is divided into thirty-six causes; the causes are divided into questions, and the questions into chapters. It is cited in the following way: cap. Qui viderit 13, quaest. 5, causa 32; or, causa 32, q. 5, cap. 13. - The treatise de Paeniten., which is found toward the middle of cause 33 and has seven distinctions, is cited thus: cap. Mensuram 86, dist. 1, de Paenitentia; or, de Paenitentia, dist. 1, cap. 86. Finally, the third part consists of five distinctions, which are divided into various chapters. They are cited thus: cap. Est unitas 49, dist. 4, de Consecrat., or, de Consecrat. dist. 4, cap. 49. For this part treats of the consecration of churches, altars, etc.

II. The second part of the body of law contains the Decretals, omitted by Gratian or issued after him, collected by St. Raymond of Penafort, of the Order of Preachers, by command of Gregory IX, and published in the year 1230. It is divided into five books, which have titles and chapters; moreover, they are cited in this way: cap. Pervenit 28, de Appellationibus; or, Decretal. lib. 2, tit. 28, cap. 28. - A chapter indicated in this latter way is found much more easily.

III. The third part contains the Sext. - The Sext, or sixth book of the Decretals, is so called because it is added to the five books of the Decretals of Gregory IX, and contains the Decretals issued from Gregory IX up to Boniface VIII. It appeared in the year 1298 by the authority of Boniface VIII; it is divided into five books, which also have titles and chapters. It is cited in the same way, but there is added in Sexto, or apud Bonifacium.

IV. The fourth part contains the Clementines, so called from Clement V, who commanded them to be collected after the Council of Vienne, over which he presided in the year 1311, and which are nothing other than Constitutions issued by Clement himself or by the Council of Vienne. John XXII promulgated them in the year 1317 in five books, which, no otherwise than the Decretals and the Sext, consist of titles and chapters. They are likewise cited in the same way, but in Clementinis is added.

V. The fifth part contains the Extravagants of John XXII, or Constitutions which he himself issued in the prior years of his pontificate. They are so called because they wander outside the body of law collected up to this point. They are usually indicated thus: Extrav. Joannis XXII, tit. 4, cap. I.

VI. Finally, the sixth part contains the Common Extravagants, which are so called because they were issued by John XXII and by several other Pontiffs. These also are divided into five books, which have chapters with titles, but not numbered. They are ordinarily cited thus: cap. Vas electionis, de Haereticis, Extravag. communib., or Extrav. comm. lib. 5, de Haereticis, cap. 2.

Other Constitutions of the Councils of Constance and Trent, and of the Roman Pontiffs, were afterward issued, but they had not yet been collected into the body of law.

The New Code of Canon Law. Pius X, "as soon as he took up the Pontificate ... entered upon the plan of gathering into one, in lucid order, all the laws of the Church issued up to these times; removed from it those things which were already abrogated or obsolete; others, where there was need, more suitably accommodated to our present morals; others also, if sometimes it seemed necessary or expedient, newly constituted."

Thus speaks the Supreme Pontiff Benedict XV concerning his Predecessor, who took care that the new Code of Canon Law be made with great daring. The matter had already long been among common desires, very arduous, scarcely possible to be done. But that great Pius, having shrunk from nothing which would enlarge the glory of God, set his hand to the work; he consulted the sacred Prelates of the Catholic world; he constituted a Council or Pontifical Commission with which rested the care of the whole affair; over this council, consisting of some Cardinals of the Holy Roman Church, the Pontiff himself presided constantly; the Cardinal Fathers chose some Consultors from men most expert in canon law and theology. Although very many theologians of the Church gave themselves wholly to this duty of codification, like a giant among all stood out Cardinal Peter Gasparri of the Holy Roman Church, a new star of ecclesiastical sciences, the eye of the council or commission and the heart of the whole work. When the codification was nearing its end, the volumes of the various books in which it was printed were transmitted to the Prelates, that they might make their observations known to the Apostolic See. Cardinal Gasparri expanded these and brought them to the Cardinals of the special Council, who were to examine what had to be changed in the canons.

But behold, fatal times entered the world; the Supreme Pontiff, mourning and to be mourned by the whole world, departed from life when the Code was almost complete. Benedict XV, gloriously reigning, was substituted for him; he left nothing undone that an end might be imposed upon the affair. At last, by his Constitution Providentissima Mater Ecclesia, on the feast day of Pentecost in the year 1917, he promulgated in these words the Code, arranged by command of Pius X and begun twelve years before: "Therefore, having invoked the aid of divine grace, relying on the authority of the Blessed Apostles Peter and Paul, by Our own Motu proprio, from certain knowledge and from the fullness of Apostolic power with which We are endowed, by this Our Constitution, which We will to be valid perpetually, We promulgate the present Code as it has been arranged, and decree and command that henceforth it have the force of law for the universal Church."

Then he decreed that it would have the force of obliging from the nineteenth day of the month of May in the year one thousand nine hundred eighteen.

Secretariat of State. - Concerning the Prescripts of Some Canons of the Code. - Bishops or other local Ordinaries, quite numerous, humbly asked Our Most Holy Lord Pope Benedict XV that, with no delay interposed, the prescripts of the Code begin to have force, that is, those which follow:

1st. Of canon 859, § 2;

2nd. Of canon 1108, § 3;

3rd. Of canon 1247, § 1;

4th. Of canons 1250, 1251, 1252, 1253, 1254.

The Most Blessed Father, in the audience given on the 19th day of the month of August to the undersigned Cardinal, benignly receiving the related petitions, decreed that the prescripts of the canons of which above have force from this very day; and besides, by Motu proprio, he granted that the Cardinals of the Holy Roman Church already now enjoy all and each of the privileges which are described in can. 239, § 1, 240, 600, n. 3, 1189, 1401 of the same Code. He commanded that all these things be promulgated, anything whatsoever to the contrary notwithstanding. From the Vatican buildings, on the 20th day of the month of August in the year 1917. P. Card. Gasparri, from the Secretariate of State.

This first Code of ecclesiastical laws, arranged by command of the Supreme Pontiff Pius X and promulgated by the authority of Benedict XV, is divided into five books. The first book, embracing General Norms, contains six titles, and canons 1-86. The second book, On Persons, contains three parts: one On clerics both in general and in species; another On religious; the third On lay persons; the first part has two sections, eight titles, and canons 108-486; before this part are placed canons 87-107 concerning various questions pertaining to diverse kinds of persons. The second part of the second book, On religious, contains nine titles, and canons 487-681. The third part of the same book, On lay persons, contains two titles, and canons 682-725. The third book, On Things, contains six parts: the first, On the Sacraments; the second, On sacred places and times; the third, On divine worship; the fourth, On the ecclesiastical magisterium; the fifth, On benefices and other non-collegial ecclesiastical institutes; the sixth, On the temporal goods of the Church. The first part of the third book, On the Sacraments, contains eight titles, and canons 731-1153; before this part are placed five canons concerning simony, 726-730; the second part, On sacred places and times, contains two sections, six titles, and canons 1154-1254; the third part, On divine worship, has five titles, and canons 1255-1321; the fourth part, On the ecclesiastical magisterium, contains five titles, and canons 1322-1408; the fifth part, On benefices and other non-collegial ecclesiastical institutes, contains two titles, and canons 1409-1494; the sixth part, On the temporal goods of the Church, contains four titles, and canons 1495-1551. Book fourth, On Processes, contains three parts: one On trials; another On causes of beatification of the Servants of God and canonization of the Blessed; the third, On the mode of proceeding in certain affairs to be expedited or penal sanctions to be applied. The first part, On trials, contains two sections, twenty-one titles, and canons 1556-1998; before this part are placed the more universal canons 1552-1555 On trials; the second part, On causes of beatification, etc., contains five titles, and canons 1999-2141; the third part, On the mode of proceeding, etc., contains seven titles, and canons 2142-2194. Book fourth, On Delicts and Penalties, contains three parts: one On delicts; another On penalties; the third On penalties for individual delicts. The first part contains three titles, and canons 2195-2213; the second part contains two sections, seven titles, and canons 2214-2313; the third part contains nine titles, and canons 2314-2414.

For better understanding, interpreting, and applying this Code, the following canons or General Norms will be of service. Since these and the rest ordinarily are very perspicuous and brief, for the most part we shall cite them word for word, so that in any occurring question it may be clear to anyone what the law commands, and with what words it is expressed.

Although in the Code of Canon Law the discipline also of the Oriental Church is often referred to, nevertheless the Code itself regards only the Latin Church, and does not oblige the Oriental Church, unless it concerns those things which from the very nature of the matter also affect the Oriental Church (Can. 1).

The Code, for the most part, decrees nothing concerning the rites and ceremonies which the liturgical books, approved by the Latin Church, command to be observed in the celebration of the most holy sacrifice of the Mass, in the administration of the Sacraments and Sacramentals, and in the performance of other sacred things. Wherefore all liturgical laws retain their force, unless some one of them is expressly corrected in the Code (Can. 2).

The canons of the Code in no way abrogate agreements entered into by the Apostolic See with various Nations, nor do they obrogate anything from them; therefore these will continue to have force just as at present, the contrary prescripts of this Code in no way notwithstanding (Can. 3).

These agreements therefore remain in their full force. The question is of concordats, therefore not of this or that concession perhaps made to this or that nation. Concordats have force as if the Code did not exist.

Rights acquired by others, and likewise privileges and indults which, granted by the Apostolic See up to these times to persons whether physical or moral, are still in use and have not been revoked, remain entire, unless they are expressly revoked by the canons of this Code (Can. 4).¹

A person is either physical or moral. By baptism a man is constituted a person with all the rights and duties of Christians, unless, as regards rights, an obstacle stands in the way, impeding the bond of ecclesiastical communion, or a censure imposed by the Church; the Catholic Church and the Apostolic See have the character of a moral person from divine ordination itself; other inferior moral persons in the Church obtain it either from the very prescript of law or from a special concession of the competent ecclesiastical Superior, given by formal decree for a religious or charitable end.

Privileges, etc., granted by the Apostolic See to these two persons, which are still in use and have not been revoked, remain entire unless they are expressly revoked by the canons.

Customs presently in force against the statutes of these canons, whether universal or particular, if indeed they are expressly reprobated by the canons themselves, are to be corrected as corruptions of law, even if they are immemorial, and are not to be permitted to revive in the future; others, which indeed are centenary and immemorial, can be tolerated if the Ordinaries, according to the circumstances of places and persons, judge that they cannot prudently be removed; the rest are to be held suppressed, unless the Code expressly provides something else (Can. 5).

The Code for the most part retains the discipline in force up to this point, although it introduces opportune changes. Therefore:

1st. Any laws whatsoever, whether universal or particular, opposed to the prescripts of this Code, are abrogated, unless concerning particular laws something else is expressly provided;

2nd. Canons which refer the old law in its entirety are to be esteemed from the authority of the old law, and therefore from interpretations received among approved authors;

3rd. Canons which agree only in part with the old law, insofar as they agree, are to be esteemed from the ancient law; insofar as they differ, they are to be judged from their own sentence;

4th. In doubt whether some prescript of the canons differs from the old law, there is not to be a departure from the old law;

5th. As regards penalties of which no mention is made in the Code, whether they are spiritual or temporal, medicinal or, as they call them, vindicative, latae or ferendae sententiae, they are to be held as abrogated;

6th. If any of the other disciplinary laws which have been in force up to now is contained neither explicitly nor implicitly in the Code, it must be said to have lost all force, unless it is found in approved liturgical books, or the law is of divine right, whether positive or natural (Can. 6).

Under the name Apostolic See or Holy See in this Code come not only the Roman Pontiff, but also, unless from the nature of the matter or from the context of speech something else appears, the Congregations, Tribunals, and Offices through which the same Roman Pontiff is accustomed to expedite the affairs of the universal Church (Can. 7).

On the Roman Curia. The Roman Curia consists of Sacred Congregations, Tribunals, and Offices, as they are enumerated and described below (Can. 242).

§ 1. In the individual Congregations, Tribunals, and Offices, discipline is to be observed and affairs are to be handled according to the norms, both general and particular, which the Roman Pontiff has furnished to them.

§ 2. All who belong to the Congregations, Tribunals, and Offices of the Roman Curia are held to preserving secrecy within the limits and according to the mode determined from the discipline proper to each one (Can. 243).

§ 1. Nothing grave or extraordinary is to be done in these Congregations, Tribunals, and Offices unless it has previously been signified to the Roman Pontiff by their Moderators.

§ 2. Any graces and resolutions whatsoever need pontifical approval, excepting those for which special faculties have been bestowed upon the Moderators of those Offices, Tribunals, and Congregations, and excepting the sentences of the Tribunal of the Sacred Roman Rota and of the Apostolic Signatura (Can. 244).

A controversy, if any should arise, concerning competence among the Sacred Congregations, Tribunals, or Offices of the Roman Curia, is settled by a group of Cardinals of the Holy Roman Church whom the Roman Pontiff shall have designated on each occasion (Can. 245).

¹ Cf. Addenda, p. 1105, n. 47.

Billuart, Summa Summae

Charles-René Billuart, O.P. — 96 passages (filed under the subtopics)

Billuart, Summa Summae, Tomus II. On the Prima Sec…, On Laws, On Law in General, Whether promulgation is of the essence of law? · Billuart, Summa Summae, Tomus II. On the Prima Sec…, On Laws, On the Change of Laws, On custom

Billuart, Summa Summae, Tomus II. On the Prima Sec…, On Laws, On Law in General, Whether promulgation is of the essence of law?

I suppose that some promulgation is necessary for the law in order that it oblige in act: because, as was said, law is the rule of human acts, and these cannot be regulated by it unless it become known; but it becomes known through promulgation.

I said, some promulgation, because it is different according to the diversity of laws. The eternal law¹ and the natural law is promulgated to each one through the dictate of reason. The positive divine law is promulgated either by internal revelation, as in the prophets, or solemnly, as the old law on Mount Sinai, the new law on the day of Pentecost. Usage, however, has prevailed that human law be always promulgated with some solemnity, and thus reason requires. For since the human legislator bears a double person, private and public, he ought to propose the law in such a way that he signify that he proposes it as a public person, which is done by employing some solemnity. ¹ The eternal law, as such, is not promulgated, but remains hidden in the divine mind. But if it go forth outside the divine mind and be communicated to rational creatures through the intellectual light, then it is for them the natural law; and thus considered it is promulgated to each one through the dictate of reason.

If you say that promulgation is not required for the revocation of a law, I reply that the revocation of a law is not a law, but the destruction of a law. More is required, however, to constitute a thing than to destroy it. For the reply to the question

¹ ¹ The eternal law, as such, is not promulgated, but remains hidden in the divine mind. But if it go forth outside the divine mind and be communicated to rational creatures through the intellectual light, then it is for them the natural law; and thus considered it is promulgated to each one through the dictate of reason.

I say: It seems more probable that promulgation is not of the essence of law, but is only a condition required irreplaceably in order that it oblige in act, just as, e.g., the proposal of the object is a condition required irreplaceably in order that it be loved.

It is proved. To the essence of law it suffices that it have an aptitude to direct and to oblige; for the essences of things are defined by first act or aptitude, not by second act, as the philosophers teach. But law before promulgation has an aptitude to direct and to oblige; for it has not this aptitude from promulgation, but its actual direction and obligation as from a condition. Therefore.

n. 7.

It is confirmed. Law is the rule by which we are induced to act, or withheld from acting, with some obligation. But promulgation is not a rule, nor part of the rule, nor does the force of obliging, or actual obligation, proceed from it as from a cause, since this ought to be from a superior as from a cause, but only as from a condition: just as heating is not from approximation as from a cause, but from fire, although it depends upon approximation as upon a condition.

n. 8.

As to St. Thomas, whose mind is disputed, he teaches here a. 4, that promulgation is related to law as the application of the rule to the thing ruled; but the application of the rule is not of its essence, but supposes it constituted. Whence, when he there says that, in order that the law obtain the virtue of obliging, it must be promulgated, he understands the virtue of obliging in second act, not in first act.

n. 9.

[Thus Billuart. But proceeding further and restricting the question to positive law, whether divine or human,

n. 10.

I say: Promulgation is of the essence of law.

n. 11.

It is proved. 1° That without which a thing has not its own being pertains to its essence. But before promulgation the law has not its own being. Therefore promulgation pertains to the essence of law. — The minor is proved. What is only in potency has no being. But so long as the law is not promulgated, it is only in potency. Therefore then it has not its own being. — The minor is evident; for so long as the law is not promulgated, whether it remain hidden in the mind of the legislator, or the legislator have externally manifested his intention of enacting such a law, nothing is perceived except a mere proposal. But this proposal is not law, but only the preparation of the law; and preparation indeed leads a thing toward being, but, until the last act be posited, leaves it in potency. Therefore, so long as the law is not promulgated, it is only in potency.

n. 12.

2° The law is not fully constituted, that is, it is not true law, unless it have the force of obliging. But the law obtains the force of obliging through promulgation, and not otherwise. Therefore, until it be promulgated, it is not true law. — I subjoin. That without which the law is not true law pertains to its essence. But the law is not true law before promulgation. Therefore promulgation is of the essence of law.

n. 13.

3° Law is an ordinance of reason for the common good. But it is not such unless it be made known to the community; and this making known is promulgation made by him who has the care of the community: whence promulgation is contained in the definition of law. Therefore promulgation is of the essence of law; for the definition expresses the very essence.

n. 14.

4° The same is proved by the authority of St. Thomas, here q. 90, a. 4.

n. 15.

The mind of the Master in this place was disputed. Some say with our Billuart: St. Thomas says that promulgation is related to law as the application of the rule to the thing ruled. But the application of the rule is not of its essence, but supposes it already constituted. Therefore the holy Doctor does not place promulgation in the essence of law, but declares only that it is a condition without which the law does not oblige. — If the words of the Angelic Doctor be rightly weighed, his contrary mind will clearly be perceived. In the place cited he solves the following question: « Whether promulgation is of the notion of law? » In the head of the objections the negative proposition is read: « It seems that promulgation is not of the notion of law; » whence whoever has understood the method of the author must straightway conclude that he champions the contradictory proposition, which is equivalent to our proposition; thus he proceeds in the body of the article: « Law is imposed on others by way of rule and measure. But rule and measure are imposed by the fact that they are applied to those things that are ruled and measured. Wherefore, in order that law obtain the force of obliging, which is proper to law, it must needs be applied to men who ought to be regulated according to it. Such application is made by its being brought to their knowledge through promulgation itself. Wherefore promulgation itself is necessary in order that law have its force. And thus from the four things premised may be gathered the definition of law, which is nothing else than a certain ordinance of reason for the common good, promulgated by him who has the care of the community. » This definition is the conclusion of the whole article; and after describing the law in itself and with regard to subjects whose actions he cannot rule and measure unless he reach them through promulgation, St. Thomas places this promulgation in the definition of law. But he would not have assigned this place to promulgation had he not held it essential to law. Therefore he held it as such.

n. 16.

It is confirmed by the axiom of law related above, dist. 4, cap. 3: « Laws are instituted when they are promulgated, » where the promulgation of the law is given as its very institution. Therefore from promulgation the law receives that it is true law. Therefore promulgation is of the essence of law. And this is intimated by Justinian, saying, c. de Legib., in leg.: « The most sacred laws ought to be understood by all, that all, their precept being more clearly understood, may decline what is forbidden and do what is commanded. »

n. 17.

You will say: The law obliges not only those to whom it has already become known, but also those who are ignorant of it, as appears in laws irritating contracts, which produce their effect even toward those to whom they are wholly unknown. Therefore promulgation is not necessary in order that the law oblige. Therefore consequently it is not of the essence of law.

n. 18.

I answer. I deny the consequence. For it is one thing the divulgation of a law, another its promulgation, as the Salmanticenses note, cap. 1, n. 74. For divulgation there is required that the law become personally known to each subject; for promulgation indeed it suffices that it have been notified generally to the community, so that any private person can easily come to know it. Further, the law does not receive its intrinsic virtue of obliging from divulgation, but from promulgation, so that as soon as it has been intimated to the community it binds all subjects at least in the external forum, since all are juridically presumed not to be ignorant of it. A distinction must be made between irritating laws, by which subjects, even though unknowing, are rendered unfit in either forum for determinate acts, on account of the motive of the public good, and laws which render certain acts illicit and bind conscience.

n. 19.

Laws of the latter kind are true laws once they have been intimated to the community, and toward all they hold their obligatory force. But if they have been insufficiently divulged, so that they have not become known to some, although even toward subjects of this kind they rejoice in all the marks of true law, nevertheless they do not bind them in the internal forum, because these are laboring in invincible ignorance, which excuses from formal sin; and respectively toward them such laws ought to be regarded as not promulgated. And in this sense we understood the principle: « A doubtful law is no law, » in our dissertation on moderate Probabilism.

n. 20.

You will ask whether a sufficiently promulgated law obliges all, even those who invincibly are ignorant of it.

n. 21.

I answer. More probably affirmatively: because 1° the law in promulgation is directed not only to those present, but also to the absent. Therefore it comprehends them also. 2° Because, if a credible private person denounce to an absent person a sufficiently promulgated law, he will be bound to observe the law, and will sin by transgressing it. But this obligation does not arise from that private denouncer. Therefore from the promulgated law. Therefore before the denunciation it obliged.

n. 22.

Nevertheless all concede that those who invincibly are ignorant are excused from fault and from punishment for transgressing the law; but if the law were not only prohibitory but also irritative of some act, the act would be invalid even in one invincibly ignorant, as, e.g., clandestine marriage in places in which the Tridentine [decree] is sufficiently promulgated.

Billuart, Summa Summae, Tomus II. On the Prima Sec…, On Laws, On the Change of Laws, On custom

[Custom is twofold¹ : one of fact, the other of right. Custom of fact is defined by St. Thomas : « Frequent acting freely in the same manner. » Custom of right, which follows from custom of fact, is defined by Isidore, book V Etymol., c. 3, cited chapter 5, dist. 1 : « A certain right instituted by manners [that is, by frequent acts], which is taken for law when law fails. » Here chiefly custom of fact is treated.] ¹ In III Sentent., dist. 23, q. 1, a. 14, quaestiunc. 2.

St. Thomas attributes three things to custom² : first, that it introduce law, namely when it exists apart from law and presupposes none; secondly, that it abrogate a law laid down and received; thirdly, that it interpret it. But custom can obtain these three in a twofold way : 1° by way of connivance, when the superior personally consents tacitly or expressly to the custom, to which no determined time is required; 2° by way of prescription, when the custom has prevailed for a certain time, with consent concurring, if not personal, at least juridical or legal, of the superior, as will be explained below. ² Here q. 97, a. 3, c.

Whether therefore and how custom can obtain these three things, we inquire. Wherefore

I say 1° : Reasonable custom can introduce law where there is none, as well by way of connivance as by prescription¹. ¹ Ibid., likewise ad 3.

[It is proved from both laws. From canonical law, cap. In his, dist. 11, where it is said from Aug. ad Casulanum, epist. 36 : « In those matters concerning which divine Scripture has established nothing certain, the custom of the people of God or the institutes of our forefathers are to be held for law. And as corrupters of divine laws, so despisers of ecclesiastical customs are to be coerced. » Likewise cap. Illa, dist. 12, from the same Aug. ad Januarium, epist. 54 ; who in each epistle reports the celebrated saying of Ambrose : « Whichever church you come to, keep its custom. » And elsewhere. From civil law. L. De quibus, ff de legibus, and elsewhere.]

Bk. III, Diss. VI, Chapter IX — On the causes excusing from reciting the Canonical Hours · Bk. III, Diss. IX, Chapter V — On the cessation, invalidation, dispensation, and commutation of vows

It is proved by reason. In reasonable custom can concur all the things required for law, namely honest matter useful to the common good, the intention of binding oneself and legitimate authority, whether of the community, if it be free, or of the prince manifestly approving, either personally or legally, that custom and intention. Therefore.

n. 7.

I said : « Of the prince approving, either personally or legally, » because a twofold consent of the prince is distinguished, one personal, the other juridical or legal : Personal, when the superior, aware of the custom, approves it, either expressly by word or by some manifest act, or tacitly, by not resisting it while he easily could. Juridical or legal consists in this, that the laws or predecessors of the present superior have declared and enacted that such custom introduces law; to which consent, as is plain, it is not required that the custom become known to the superior. That therefore custom may introduce law by way of connivance, personal consent is required, at least tacit; but that it may introduce it by way of prescription, legal consent suffices.

n. 8.

[You will ask whether all customs long-lasting and general obtain the force of law.

n. 9.

Answer. Customs which consist in the frequent repetition of the same acts, however long-lasting and general they be, do not obtain the force of law unless they were observed with the mind of binding oneself. The reason is, because custom is taken for law. But law is constituted through the will of obliging. Therefore. Whence the custom of saluting B. M. V. thrice a day at the tolling of the bell, of purifying oneself with blessed water at the entrance of the church, etc., never obtained obligatory force of law, because these acts were always frequented from mere devotion. It is known moreover whether a custom was introduced with the mind of binding oneself, if it be observed constantly and universally and not without considerable inconvenience; if transgressors are punished; if pious men commonly so judge. But in doubt whether a custom be from devotion or obligation, whether under grave or under light matter, whether it oblige under sin or only under penalty, the more benign part is to be held; for no law obliges unless it stand established concerning it. So St. Ligor., lib. I, n. 107.]

n. 10.

I say 2° : Reasonable custom can abrogate human law, even irritant, or derogate from it, as well by way of connivance as by prescription¹. ¹ Ibid.

n. 11.

Of the way of connivance there is no difficulty, because law hangs upon the will of the legislator; whence, the will of the legislator being changed, and this manifested outwardly, the law ceases. But through free connivance toward a custom contrary to the law is manifested in fact the change of will in the legislator. Therefore. I said : « Free connivance, » so that the legislator can easily hinder it and does not hinder it; for if he tolerate it because he cannot resist, or defer to another time, it is not free consent sufficient to abrogate law by way of connivance.

n. 12.

The second part is proved from both laws. From canonical law. Cap. Cum tanto de consuetudine, Decretal. lib. I, tit. 4, c. 11, it is said : « Although long-standing custom has no mean authority, yet it shall not prevail so far as to generate prejudice against positive law itself, unless it be reasonable and legitimately prescribed. » By which exception the canon plainly signifies that reasonable custom legitimately prescribed can derogate from human law. From civil law, L. De quibus, ff de legibus : « Most rightly has this been received, that laws are abrogated not only by the suffrage of the legislator, but also by the tacit consent of all, through disuse. »

n. 13.

It is proved by reason. Human laws are subject to the authority and will of men, no otherwise than other human things and rights. But human things and rights can be changed and transferred independently of the will of their lords through the authority of law, as happens in prescription. Therefore likewise human laws can be changed through the authority of law, independently of the personal will of legislators. — I subjoin. But the laws decree that reasonable custom legitimately prescribed prevail over human law, as is plain from the laws praised above. Therefore.

n. 14.

Hence you will infer that no determined time is required in order that custom abrogate law by way of connivance, but that it suffice that connivance or personal consent of the legislator stands established; because the law ceases not by right but by the changed will of the legislator himself. When however one proceeds by way of prescription, determined time is required; because then it ceases not from the changed will of the legislator, but from the disposition of law, and therefore time determined by law is required in order to prescribe legitimately. Whence the common opinion is, that in order that custom prescribe against civil law, ten years are required; against ecclesiastical law, forty years; because thus common law disposed for the prescription of other civil and ecclesiastical rights.

n. 15.

[Prescription of forty years seems required against ecclesiastical laws, from cap. De quarta, lib. II Decretal., tit. 26 de praescript. and cap. Ad aures, ibid., where is read : « Prescriptions of forty years exclude every action altogether. » But Lessius, lib. II, chapter 6, dub. 14, n. 17, and others cited among the Salmanticenses, de Legib., chapter 6, punct. 3, § 2, n. 17, say probatively that ten years suffice, whether the laws be received or not; because no greater reason is to be had of custom against ecclesiastical law than against civil, since no law distinguishes between these laws. Lessius answers moreover to the texts cited, that they speak not of laws, but of rights and goods immovable of the Church to be prescribed; but under the name of rights the laws of the Church do not come. So St. Ligor., lib. I, n. 139.

n. 16.

You will ask 1° whether good faith be required in order to prescribe against law.

n. 17.

Answer negatively, with St. Ligorio, lib. I, n. 107. Even by sinning can custom be made. Salmant., de Legib., chapter 6, punct. 3, § 1, n. 11, with Suarez. For custom holds a threefold state. In the beginning, all sin who introduce custom against law. In progress, those sin not who now use it, already introduced by their forebears, but they can be punished by the prince. At the end they sin not, nor can they be punished, who use it now prescribed. So Salmant., ibid. n. 13, and others. The reason is, because, when custom is clothed with all the conditions required, among them is found the consent of the legislator such as was described above.

n. 18.

You will ask 2° whether custom can prevail, if a law be passed with the clause : « Notwithstanding any custom whatsoever. »

…and 56 more passages — all of them are listed on the topic page.

Concina, Theologia Christiana III

Daniele Concina, O.P. — 1 passage (filed under the subtopics)

Diss. III, Chapter XIII — For a valid and licit dispensation, a reasonable cause is necessary

n. IX.

IX. Question III. What are the legitimate causes for granting dispensation? Response: Before I assign the causes individually, I will preface a few general points, which authors commonly note must be observed in dispensation. The first is that it be lawful according to equity; the second, that it be fitting according to honorableness; and the third, that it be expedient according to utility. This too must be held as a universal and certain principle: namely, that the graver the vow, the graver a cause it requires for dispensation — such that there be a fitting proportion between the vow which is to be relaxed, and the cause of such relaxation. Vows of chastity, of religious life, of the threefold pilgrimage, of perpetual fasting, of disbursing vast alms, are most grave vows: therefore they require a grave cause for dispensation. Lesser, and more frequent, vows — such as wearing the habit of some Saint, visiting his image, undertaking a visit to some such sanctuary, and the like — since they are of lesser weight, a lesser cause too suffices for obtaining dispensation. The reason is evident: in vows of the former kind, the matter consecrated to God by vow yields greater worship. Now there is no foundation for presuming that God wishes to remit the payment of a grave tribute, when no urgent reason is present which would counsel such indulgence. Hence it is that common practice holds that an absolute dispensation is most rarely granted in the aforesaid vows; but almost all teach that commutation, or dispensation, is to be granted only integrally, and that it is not always to be inferred, that the Church, or the Pontiffs themselves, ought to intermix the power of commuting or dispensing whenever some evident cause of dispensing occurs. For the power in the Church of dispensing is never to be diminished morally; nay, an evident and just legitimate cause is always, as commonly required, to occur, so that a full and absolute dispensation may be granted... . Nor is absolute moral certainty always required in moral matters; and this can often not be had, but it suffices that the cause probably exist. It suffices, then, that the cause, all things having been seriously inspected, be recognized as expedient for the common good, and for the honest utility of the one vowing, so that the vow be relaxed.

Concina, Compendium

Daniele Concina, O.P. — 3 passages (filed under the subtopics)

Bk. III, Diss. VI, Chapter IX — On the causes excusing from reciting the Canonical Hours

n. IX.

IX. Question V. Who can dispense from reciting the office? Answer. The supreme Pontiff, as the supreme guardian of the laws and the maker of ecclesiastical law, can dispense, for a just cause, throughout the universal Church. Bishops too, in their own diocese, can dispense — not in perpetuity, but according to the variety of circumstances, a just cause occurring. Similarly, Regular Prelates can dispense their Religious for a time, a just cause pressing.

Bk. III, Diss. IX, Chapter V — On the cessation, invalidation, dispensation, and commutation of vows

n. XIX.

XIX. Question XVI. To whom, by ordinary law, does the faculty of dispensing in vows belong? Answer. It belongs first to the supreme Pontiff, Pastor and Head of the universal Church, and Vicar of Christ on earth; then to a general Council, to the supreme Pontiff's Penitentiary, to Legates a latere, to pontifical Nuncios with respect to the whole Province or Kingdom, to Archbishops, Bishops, the cathedral Chapter with the see vacant, Abbots having quasi-episcopal jurisdiction, and all Prelates of Regulars with respect to their own subjects. All these can, by ordinary law, dispense their subjects in vows both personal and real, reserved vows excepted. Cardinal Protectors of Orders cannot, by ordinary law, dispense in vows. The vows of a Community can be dispensed by a Bishop, a just cause occurring.

n. XXX.

XXX. Question XXIII. What are legitimate causes of dispensation? Answer. Three things must be noted: 1. what is lawful according to equity; 2. what is fitting according to honesty; 3. what is expedient according to utility. The graver the vow, the graver the causes required for dispensation, so that there be a fitting proportion between the vow to be relaxed and the cause of relaxation. Hence it is that in the aforesaid five vows dispensations are rarely granted, but the supreme Pontiffs themselves are wont to mix in something of commutation. Nor is it to be inferred from this that a dispensation is never to be granted; but only that it is to be granted when a legitimate cause occurs. Nor is an evident cause always required, since in moral matters it can often not be had. It suffices that a likely cause appear solid, so that, all things seriously weighed, it be judged expedient, both to the common good and to the honest advantage of the one vowing, that the vow be relaxed.

Slater, Cases I

Thomas Slater, S.J. — 42 passages (filed under the subtopics)

Slater, Cases I, Laws, Case 1. The Promulgation of Law · Slater, Cases I, Laws, Case 7. A Spaniard with His Bulla Cruciatae · Slater, Cases I, Laws, Case 12. Interpretation of a Privilege

Slater, Cases I, Laws, Case 1. The Promulgation of Law

Titius, the missionary rector in England, doubts whether he would incur the suspension which, in the Fourth Council of Westminster, decree XI, number 9, was enacted against ecclesiastics initiated into sacred orders who “are present at stage performances in public theaters or in places temporarily serving for the use of a public theater,” if he were present at performances which a certain confraternity of young people of both sexes was accustomed sometimes to give in the elementary schools of his mission. He therefore asks his bishop to resolve the doubt. The bishop refers the matter to a meeting of all the bishops which was to be held shortly afterward for conducting business. They decide that all performances other than those presented by boys or girls, even in elementary schools, are comprehended by the provincial law. The diocesan bishop communicates this decision to Titius and afterward to several of his other priests when occasion arises. Notwithstanding this decision, grave doubts about the proposed question still trouble Titius. Hence he asks:

To whom does it belong to interpret a law?

What kind of promulgation is required in order that a law may bind?

Who are subject to laws enacted in a provincial council?

What is to be said concerning the case?

Solution

To whom does it belong to interpret an ecclesiastical law?

Law is interpreted authentically by the legislator, and such interpretation has the force of law if it be duly promulgated. It is interpreted doctrinally by theologians and canonists, whose authority is worth as much as it proves. It receives a customary interpretation from the way in which it is observed, for custom is the best interpreter of law, and from the practice of the curia, or the way in which it is applied in the ecclesiastical courts.

What sort of promulgation is required that a law may bind?

All are agreed that due promulgation is required in order that a law may have binding force. Promulgation is not a mere diffusion of knowledge concerning the existence of a law procured through the public press or by similar means. It is a publication of the law made by lawful authority, with a view to imposing an obligation on subjects to act as the law prescribes. It is left to the legislative authority to decide how a law is to be promulgated. Sometimes a special mode of promulgation is laid down in the law itself. Thus the decree Ne temere, Aug. 2, 1907, was promulgated by the very fact of its being transmitted to the Ordinaries. By the apostolic constitution Promulgandi of Sept. 29, 1908, Pius X decreed that “henceforward the Pontifical constitutions, laws, decrees, and other ordinances of the Roman Pontiffs, of the Sacred Congregations, and of the Offices, inserted and published in the said Bulletin (Acta Apostolicae Sedis) with the authorization of the secretary or of the highest Official of the respective Congregation or

Office from which they emanate, in this, and only in this manner be considered as legally promulgated, whenever promulgation is necessary and the Holy See has not otherwise provided.”

n. ¶11.

Episcopal laws are generally promulgated by being read in synod or in the churches of the diocese.

n. ¶12.

Who are subject to laws made by a Provincial Council?

n. ¶13.

Laws made in a Provincial Synod after recognition by the Sacred Congregation of the Council and promulgation by the Metropolitan bind all members of the Church who have a domicil or quasi-domicil within the territory represented by the synod, and who are not exempted. Even the bishops are subject to provincial laws, although they can dispense in them in particular cases. The interpretation of provincial law made by bishops either singly or gathered together in bishops’ meetings, is not authentic, but rather doctrinal, although of course a bishop can if he pleases make a law for his own diocese.¹

1 Laurentius, Institutiones Jur. Eccles., n. 228.

n. ¶14.

The case. Titius, a missionary rector in England, doubted whether he would incur the suspension inflicted by provincial law by the fact itself on ecclesiastics in Sacred Orders who are present at stage plays in public theaters or in places serving for the time as public theaters, if he were to be present at a play given by a confraternity of young people of both sexes in the elementary schools of his mission. He referred the doubt to the bishop, who brought it before the other bishops at their meeting. The bishops decided that all plays given by others than mere children even in schools are comprehended in the law. The decision was communicated to Titius by his bishop, who on occasion communicated it to others as well. Notwithstanding this Titius still has grave doubts on the point.

n. ¶15.

It will be clear from what we said above that the decision of the bishops has not of itself the force of law. The main question is: Does the case come under the provincial law according to its natural signification? The chief difficulty is: Are elementary schools places serving for the time being as a public theater when a play is given in them? If private theatricals were held in a school for a few friends of the confraternity, it clearly would not be used as a public theater. But if the play is not private but public, in the sense that any one who chooses to present himself is admitted, then it would seem that the very fact of a play given there makes it a place serving the purpose of a public theater for the time. It is immaterial whether payment be required or not. So that it would seem that the decision given by the bishops was a declaration of the law according to its natural and obvious sense. Of course the sense of a positive law like the one with which we are concerned may be limited or extended by custom. This law is limited by custom in England to the extent that plays given by children do not come under it. In some dioceses it is said that custom goes further and excludes from the meaning of the law plays given by amateurs in schools and other such places. Whether in any particular diocese there exists such a custom against the law, and whether it is legitimate or not, are questions of fact to be settled by the evidence.

Slater, Cases I, Laws, Case 7. A Spaniard with His Bulla Cruciatae

Francis, a Spanish merchant staying at Liverpool in order to conduct various business affairs, must remain there for several months, afterward to return to Spain. Meanwhile, he makes his confession to a diocesan priest. He admits that he has eaten meat, as well as eggs and lacticinia, on days of abstinence and fasting, for he possesses the Bulla Cruciatae and is merely a peregrinus. In addition, he accuses himself both of sins reserved to the diocesan bishop and of those reserved to the Supreme Pontiff. Since the confessor does not know the force of the Bulla Cruciatae, he trusts the penitent when the latter asserts that he has the privilege of obtaining absolution, and absolves him. It is asked:

What is the Bulla Cruciatae, and what are its privileges?

Are these personal?

Is the Bulla Cruciatae in force outside Spain?

What is to be said concerning the case?

Solution

What is the Bulla Cruciatae, and what privileges does it confer?

The Bulla Cruciatae, or Bull of the Crusade, was a papal Bull which originally granted indulgences in favor of those who took part in the wars against the Moors in Spain. Those who could not fight against the infidel could help in the good work by contributing money, and those who did this were admitted to a share in the privileges granted by the Bull. The Bull continued to be granted after the crusades ceased, and the proceeds derived therefrom were devoted to the building of churches and other pious objects. Leo XIII granted a Bulla Cruciatae to Alphonsus XIII, in the year 1902, to be in force for twelve years. Besides plenary and other indulgences, this Bull grants to the faithful laity who live in the Spanish dominions, or who come thither from elsewhere, the faculty of eating meat on fasting-days, but this faculty can only be used within the Spanish dominions. The faithful are also empowered once during life, and once again at the hour of death, to choose a confessor who receives authority to absolve them from all reserved sins and censures except manifest heresy. The Archbishop of Toledo, as Commissary-General, is granted certain faculties for dispensing from ecclesiastical law and granting compositions to debtors who owe money to creditors whom they can not discover.¹

1 Acta S. S., vol. xxxv, p. 562.

Are these privileges personal ?

Yes, in general; but that which grants permission to eat meat on fasting-days can only be used within the Spanish dominions, and so this privilege is local as well as personal.

Is the Bulla Cruciatae granted for other countries besides Spain?

n. ¶11.

Yes, it is granted to the old kingdom of Naples, or the kingdom of the Two Sicilies, as it is sometimes called, to Portugal, and to Spanish America, which formerly were subject to the rule of Spain.

n. ¶12.

The case. Francis, a Spanish merchant staying for some months at Liverpool, goes to confession to one of the priests of the diocese. He says that he has eaten meat, eggs, and lacticinia on days of fasting and abstinence, for he has his Bulla Cruciatae. In doing this he did wrong, for the Bull expressly limits the use of this dispensation to the Spanish dominions.

n. ¶13.

Francis also accuses himself of sins reserved both to the bishop of the diocese and to the Holy See.

n. ¶14.

As Francis is a peregrinus, it is probable that he does not incur cases reserved to the Bishop of Liverpool, but, putting that question aside, he can be absolved once by virtue of the Bull from all cases reserved to any Ordinary, or to the Holy See, except from manifest heresy. This faculty is not restricted to any particular place, so that Francis can be absolved by the Liverpool priest unless he has already made use of the faculty.

Slater, Cases I, Laws, Case 12. Interpretation of a Privilege

Caius and Julius, priests, went for a whole day to a distant place for the sake of recreation. Since they foresaw that they would not be able to recite the Breviary after their return, they intended to take it with them; nevertheless, each, occupied with other things, forgot it. Caius, taking the opportunity, began to recite the Rosary, saying that, by reason of the commutation granted to them in the faculty sheet, the Rosary was to be substituted whenever the Breviary could not be recited because of a legitimate impediment. Julius, however, replied that he would not recite the Rosary, for the faculty in the sheet was a privilege which no one was bound to use. Having returned home around midnight, they asked the rector which of them had judged better concerning the obligation of reciting the Rosary. Hence it is asked:

What is a privilege, and what are its various species?

How is this statement to be understood: “No one is bound to use a privilege”?

How is “Rosary” to be understood in the faculty mentioned in the case?

What is to be said concerning the case?

Solution

What is a privilege, and what different sorts are there?

A privilege is defined by canonists and theologians to be a private law conferring on the holder some special favor. It partakes of the nature of a law, inasmuch as it imposes on others the obligation of not violating the privilege.

Privileges are personal when they are granted immediately to a physical or moral person; that is, to an individual, or to a class, or to a corporation. Those which are granted immediately to a thing or a place are called real privileges. They are against the law when they derogate from it, as does the privilege of a private oratory. If there be no law from which it derogates, a privilege is said to be beyond the law, such as the faculty of absolving from reserved cases.

How is the saying to be understood, “No one is bound to use a privilege”?

Vol. I, Case LX: In Rebuilding a P…, May the Name Be Changed? · Vol. I, Case LXIV: Lay Confraternities Forbidden in Convent Chapels

This rule follows from the nature of a privilege, for a privilege is a special favor. But if it imposed on the holder an obligation to use it, it might become a burden. However, the rule must be understood with some limitations; for it may be that if I do not use a privilege which I possess, harm may ensue which I could prevent by using the privilege. In such a case charity requires that I should use the privilege. And thus if a penitent comes to me with a reserved case, for which I have a special faculty, I am bound to give absolution. Individuals who belong to a privileged body are not at liberty to renounce the privileges of their order, so that a cleric can not lawfully give up the privilege of the ecclesiastical court.

n. ¶11.

How is “Rosary” to be understood in the faculty in question? Does it mean five decades or fifteen?

…and 2 more passages — all of them are listed on the topic page.

The Casuist

Various; ed. S. Woywod, O.F.M., and J. A. McHugh, O.P. — 17 passages

Vol. I, Case LX: In Rebuilding a P…, May the Name Be Changed?

In a certain parish, composed chiefly of working-people, the church was found to be too small, and a new building was imperatively necesssary. From many quarters the wish was expressed that the new church should be dedicated to St. Joseph, patron of the working classes, particularly because the patron saint of the church is a saint little known. May the title of this church be changed?

^* By A. Pachinger.

Ever since the time of the apostles every church receives a name, as does man in Holy Baptism. It is self-evident that the patron of a place or of a country has nothing to do with the title of a church.

Churches may be dedicated to the Most Holy Trinity; to Christ; or to one of the mysteries in His life, as, for instance, the Transfiguration; the Blessed Virgin and events from her life, such as the Annunciation; the Angels and Saints. A church can not be dedicated without special permission from Rome to a servant of God only declared Blessed or Venerable. Generally a church has only one patron Saint, but there are numerous cases where a church is dedicated to several Saints, as Cosmas and Damian, and even when their feasts are celebrated on different days, as Saints John and Francis.

Rome adheres to the principle that the title or name of the church should not be changed lightly. It would indeed hurt the Christian feeling, if without any ado a patron saint, after having been regarded for centuries perhaps as the intercessor of a parish, should be suddenly deposed. The Apostolic See has nevertheless regard for the wishes of t'.ie people by consenting to the addition of a second name, or patron, to the old one.

Gasparri (de Euch. 1, 93) writes: “The title of a church generally ought not to be changed; that is, neither should another be added, nor, if the title is multiple, should any one be suppressed or another substituted. This change can be made when a church that has been destroyed is rebuilt; but even in this case it is most fitting that the same title be retained and, at most, a new one added, as the Sacred Congregation of Rites prescribed on January 16, 1885.”

In the year 1843 the question was proposed in Rome: Whether, once a titular patron has been assigned to a church, it is lawful for the bishop for a reasonable cause to change him for another; and, insofar as the answer is negative, the bishop earnestly begs that by apostolic indult this faculty be granted to him in the case. The answer was: To 1: it is not lawful. To 2: the favor is granted of taking St. Anne as co-titular with St. Andrew the Apostle.

In Rome the question introduced at the beginning has been before decided that: The old title is to be retained, and a new one can be added to it. Gasparri introduces three such decisions (l. c. p. 92.) and summarizes the result in these words:

“The Sacred Congregation of the Council judged that, when a parish church is transferred to another church recently erected, the old title is to be retained and transferred to the substituted church, but that a second title may be added.”

Important is the observation of this famous canonist: “When by an act of the Holy See a new title has been added to the old one, the old title does not lose its prerogatives, and all the titles are to be regarded as equally principal. A bishop cannot by his own authority add another title to an existing one without a new dedication of the church.”

In our case the pastor can therefore safely elect St. Joseph as contitularis, asking the Bishop, at the dedication of the new building, to add this new name to the old one. The previous patron saint must, however, be retained, and his feast day is to be observed as heretofore according to the rubrics; the new one, now aeque principalis, will be treated by the parish priests in Breviary, and holy Mass, exactly the same as the old patron saint. “If a church has several titular patrons, not as one but separately, the feasts of all are to be celebrated on their proper days with the indicated rite, provided they are all equally principal” (l. c. 94).

Vol. I, Case LXIV: Lay Confraternities Forbidden in Convent Chapels

Applied correction from Woywod's opening insert: CASE LXIV.—The Code allows Confraternities and Pious Unions to be erected in any church, public or semi-public oratory. Semi-public oratories are the chapels in hospitals, colleges, academies and various pious institutions. In churches and chapels that are exclusively for the use of religious Sisterhoods the bishop can allow only the erection of church societies for women and of Pious Unions which have for their object the performance of certain religious exercises but do not transact any other business in their meetings. (Canon 712.)

^* By J. Schwienbacher, C.SS.R.

The School Sisters of St. Francis in X. wish to have a pious confraternity established in their consecrated public chapel as an incentive to a growth of devotion among the people. The superioress applies to a priest asking the question: May lay confraternities be established in convent-churches, or chapels?

The question is not a new one, for such early authors as Lucius Ferraris in his "Bibliotheca prompta," and others, have answered the same in a negative sense, referring to the interdiction of the Sacred Congregation Episc. et Regul. of April 6 and November 6, 1595, of March 15, 1599, and of May 5, 1645: “Confraternities of lay people cannot be erected and established in churches of nuns.” (Ferraris: title “Confraternity,” article c. I. no. 38.) This prohibition was repeatedly renewed later, and even in recent times, and the answer of the Sacred Congregation of Indulgences of February 29, 1864, makes it plain that the same concerns all chapels of orders as well as religious congregations of women. With great emphasis, this prohibition was again renewed in the letter of the Sacred Congregation of Bishops and Regulars of August 22, 1891, to the Bishop of Foligno, in the words: “It does not please the Sacred Congregation that confraternities of lay people be established under any title in monasteries of nuns, in order to remove the very many inconveniences that can arise therefrom; indeed, it commands that those erected be removed, or otherwise transferred.”

That these decisions are not merely limited to individual cases and convents, may be learned, among others, from P. Beringer's work on Indulgences, approved by the Sacred Congregation of Indulgences, which enjoys a great reputation. There it is stated as general rule: "In churches or chapels of orders of religious women, whether religious communities in the strict sense of the word, or religious congregations, confraternities of laymen can not be established (II. T. IV. Sec. 4, III. n. 2.) The same principle we find proclaimed in the book about the arch-confraternity of Our Lady of Perpetual Help published in Rome, which in explaining that the same may be erected in every public church or chapel, states explicitly “nevertheless, churches of nuns must be excepted, in which, according to several Declarations of the Sacred Congregation of Bishops and Regulars, confraternities of lay people cannot be established” (Pars III. cap. I. Sec. 55, II. n. 2).

Exceptions from this rule are, according to Beringer, the League of the Sacred Heart of Jesus, and the Confraternity of the Immaculate Heart of Mary, for the conversion of sinners. Beringer, however, remarks that "In both these cases it appears only allowable that the nuns themselves and inmates of their institutions, also the pupils of such institutions, but not other lay people of either sex may belong to these confraternities."

The ecclesiastical decisions in the matter do not warrant the prohibition to be extended to pious societies of all kinds. As, however, according to Beringer even the Sacred Congregation of Indulgences styles the same confraternities at times differently, as congregations, sodalities, pious unions, confraternities or arch-confraternities; thus the scope of the word "Confraternity" is determined more from the object than from the name. A chief characteristic of confraternities consists, as Beringer observes, that they must be canonically erected, i. e., with ecclesiastical authority, at a certain altar or in a certain church, and for this reason must remain under guidance and control of that church, while the pious societies or unions, even though conducted by the clergy and enriched with indulgences, are as a rule, only simply approved by the ecclesiastical superiors, not, however, canonically erected.