Rescripts

I. Notion. A rescript is the response of an ecclesiastical Superior, given in writing, by which a right is granted at someone's supplication, relation, or consultation.¹

¹ Cf. Vermeersch, Epitome Iuris Canonici, I, n. 122 sq.

II. Division. Rescripts are divided:

1. Into rescripts according to law, beyond law, and against law.

2. Into rescripts of grace and of justice, according as they grant a favor without any connection with judicial matter, or determine a right between contending parties.

3. Into rescripts in gracious form and in commissory form, according as they do not require, or do require, an executor.

III. Obtaining of a rescript. All who are not expressly prohibited can freely obtain rescripts from the Apostolic See and from other Ordinaries, both for themselves and for another (can. 36, § 1). Nevertheless no one should seek from another Ordinary a grace denied by his own Ordinary, without any mention being made of the denial; but once mention has been made, the Ordinary should not grant the grace unless the reasons of the denial have been had from the prior Ordinary (can. 44, § 1). But if the mention of which there is question is omitted, the concession of the grace is nonetheless of itself valid.

I said that a rescript can also be obtained for another; concerning this note that this can also be done without the other's assent. And although he himself can fail to use the grace granted through the rescript, nevertheless the rescript has force before his acceptance, unless something else appears from the clauses added (can. 37).¹

¹ Cf. Sacred Congregation of Religious, August 1, 1922 (A.A.S. XIV, p. 501).

IV. Requisites for validity. There is required:

1. That the person receiving the rescript be capable of obtaining the grace of which there is question. Furthermore, first, excommunicated persons to be avoided; second, other excommunicated persons, interdicted persons, and suspended persons after a declaratory or condemnatory sentence, cannot validly obtain any pontifical grace unless mention of the censure is made in the pontifical rescript (can. 2265, § 2; 2275, 3°; 2283). Outside these cases, graces and dispensations of every kind granted by the Apostolic See are valid even for those bound by censure (can. 36, § 2).

2. That the matter be suitable for a rescript. Now rescripts, even those issued motu proprio, against the legitimate custom or particular statute of some place, or against a right already acquired by another, are not sustained unless an express derogatory clause is added to the rescript (can. 46).

3. That order be observed in the petition. Furthermore, first, a grace denied by one Sacred Congregation or Office of the Roman Curia is invalidly granted by another Sacred Congregation or Office, or by the local Ordinary even if he has the power, without the assent of the Sacred Congregation or Office with which, or with whom, action was begun, with the right of the Sacred Penitentiary for the internal forum preserved (can. 43). Second, a grace denied by the Vicar General and afterward obtained from the Bishop, with no mention made of this denial, is invalid; but a grace denied by the Bishop cannot validly be obtained from the Vicar General, even with mention of the denial made, unless the Bishop consents.

4. That certain conditions not be lacking, namely those which in rescripts are expressed by the particles "if," or "provided that," or another of the same signification (can. 39); and that the petitions rest upon truth (can. 40), and indeed, in rescripts of which there is no executor, at the time at which the rescript was given, but in the others at the time of execution¹ (can. 41). But that petitions must rest upon truth you should understand in this way:

a) Subreption, or reticence of the truth in the petitions, does not prevent the rescript from having force and being ratified, provided those things were expressed which, by the style of the Curia,² must be expressed for validity (can. 42, § 1). Indeed when the clause Motu proprio is added to rescripts obtained at someone's petitions, they do have force if in the petitions a truth otherwise necessarily to be expressed is kept silent, but not if a false final cause, and that the only one, is proposed (can. 45).

b) Nor does obreption, or presentation of what is false, stand in the way, provided either the only cause proposed, or at least one motive cause³ out of several proposed, is true (can. 42, § 2). Indeed a dispensation granted from a lesser impediment of Matrimony⁴ is invalidated by no defect either of obreption or of subreption, even if the only final cause set forth in the petitions was false (can. 1054).

c) Rescripts are not made invalid by error in the name of the person to whom or by whom they are granted, or of the place in which the person dwells, or of the matter about which there is question, provided, in the judgment of the Ordinary, there is no doubt about the person or the matter itself (can. 47).

Note. If it happens that two rescripts contrary to one another are obtained concerning one and the same matter, the particular prevails over the general in those things which are expressed particularly. If they are equally particular or general, the earlier in time prevails over the later, unless express mention of the earlier is made in the latter, or unless the earlier petitioner has not used his rescript through fraud or notable negligence. But if they were granted on the same day and it is not clear which petitioner obtained first, both are invalid, and, if the matter permits, recourse must again be had to him who gave the rescripts (can. 48).

¹ For example, someone seeks a dispensation from a greater matrimonial impediment so that offspring may be legitimated. A little after the dispensation has been granted, the offspring dies. In this case, when the rescript does not require an executor, the Matrimony nevertheless can be contracted, because the cause alleged was true at the time of concession. But when the rescript requires an executor, the Matrimony cannot be contracted because, as is supposed, at the time of execution the offspring was already dead, and so the cause alleged no longer rested upon truth at that time.

² The style of the Curia is, as it were, the norm of proceeding in seeking or granting graces, or in treating judicial matters; I mean a norm received by use or established by pontifical decrees. What things, in the various kinds of rescripts, must be expressed for validity cannot be designated by one single rule; but insofar as it seems necessary, it will be explained in its own place.

³ The motive or final cause is that which, whether one simple cause or a complex of several causes, suffices of itself for granting the favor. The impulsive cause is that which indeed does not suffice, but nevertheless aids the motive cause, or impels the superior to grant the favor more quickly or more easily. Which cause is motive and which only impulsive is different in different matters, and must be estimated only from the law and the style of the Roman Curia.

⁴ Can. 1042 sets forth the lesser impediments of Matrimony.

V. Time at which rescripts have effect. Rescripts by which a grace is granted without an interposed executor have effect from the moment at which the letters were given; the others from the time of execution (can. 38).

VI. Interpretation of a rescript. 1. Rescripts are to be understood according to the proper signification of the words and the common usage of speaking, nor should they be extended to cases other than those expressed (can. 49).

2. In doubt, rescripts which refer to lawsuits, or harm rights acquired by others, or are opposed to a law for the advantage of private persons,¹ or finally were obtained for the acquisition of an ecclesiastical benefice, receive strict interpretation; all the rest broad (can. 50).

¹ For example, prerogatives established by law for minors.

VII. Execution of a rescript; concerning this, certain things must first be noted beforehand:

1. Things to be noted beforehand. Among rescripts, as was said in n. 204, some do not require an executor, while others require one. Furthermore:

a) Rescripts which do not require an executor are said to be granted in gracious form, and for the most part are sent directly to the petitioner. Now a rescript of the Apostolic See in which no executor is given must be presented to the Ordinary of the petitioner only when either this is prescribed in the same letters, or there is question of public matters,¹ or certain conditions must be verified² (can. 51). In cases of this sort the Bishop only subscribes: "We have seen" or "We have recognized"; he does not write: "We approve."

b) Rescripts which require an executor are said to be granted in commissory form, and generally are sent not to the petitioner, but to the executor, who commonly is the Ordinary of the petitioner himself. Moreover, the executor can be necessary or voluntary. If he is a necessary executor, only the bare ministry is committed to him, that is, only the execution of the grace, and of itself it is not licit for him to deny the execution. In the case, just as if there is question of a rescript granted in gracious form, the grace has already been made. If he is a voluntary executor, the faculty of granting the grace is committed to him, and the exercise of this faculty is left to his prudent judgment; consequently he could still deny the execution of the grace (cf. can. 61).

2. Things to be observed. a) "The executor of a rescript invalidly performs his office before he has received the letters and recognized their authenticity and integrity, unless prior notice of them has been transmitted to him by authority of the one rescripting" (can. 53).

b) If the mere ministry of execution is committed in the rescript, execution of the rescript cannot be denied unless either it is manifestly clear that the rescript is null by defect of subreption or obreption, or conditions are added in the rescript which the executor knows have not been fulfilled, or the one who obtained the rescript seems to the executor so unworthy that the concession of the grace will be an offense to others. If this last occurs, the executor, leaving the execution aside, should immediately make the one rescripting more certain about the matter (can. 54, § 1).

But if in the rescript the concession of the grace is committed to the executor, it belongs to him, according to his prudent judgment and conscience, to grant or deny the grace (can. 54, § 2).

c) Rescripts for the presentation of which no definite time exists can be exhibited to the executor at any time, provided fraud and deceit are absent (can. 52). Besides, the executor must proceed according to the norm of the mandate, and unless he has fulfilled the essential conditions added in the letters and has observed the substantial form of proceeding, the execution is invalid (can. 55). In addition, the execution of rescripts which regard the external forum must be made in writing (can. 56).

d) The executor of rescripts can substitute another for himself according to his prudent judgment, unless substitution has been prohibited, or the person of the substitute has been predefined. If, however, the industry of the person was chosen, it is not licit for the executor to commit anything to another except preparatory acts (can. 57). Finally, any rescripts can also be mandated to execution by the successor of the executor in dignity or office, unless the industry of the person was chosen (can. 58).

e) It is lawful for the executor, if he has erred in any way in the execution of rescripts, to mandate the same things to execution again (can. 59, § 1).

f) As regards taxes for the execution of rescripts, the prescription of can. 1507, § 1, is to be observed (can. 59, § 2). This canon establishes as regards rescripts: "To predefine taxes... for the execution of rescripts of the Apostolic See..., to be paid in the whole ecclesiastical province, belongs to the provincial Council or the meeting of Bishops of the province; but a predetermination of this sort has no force unless first approved by the Apostolic See." Furthermore, in matrimonial dispensations for non-poor persons, only some modest payment by title of chancery expenses can be demanded by the Ordinaries of places or their officials, with any contrary custom reprobated. If they have demanded some emolument, they are held to restitution. Except if the faculty of demanding another emolument has expressly been given to them by the Holy See; and if they have demanded it, they are held to restitution (can. 1056).

¹ For example, concerning an indulgence or sacred relics to be exposed for public veneration.

² As if the Ordinary must examine the suitability of the place for a private oratory.

VIII. Revocation of a rescript. A rescript is revoked only through a particular act of the Superior, but not through a contrary law, unless something else is provided in the law itself, or the law was passed by a Superior of the one rescripting (can. 60, § 2). Yet a rescript revoked through a particular act of the Superior endures until the revocation is signified to him who obtained it (can. 60, § 1).

Note 1. Through the vacancy of the Apostolic See or of the diocese, no rescript of the same Apostolic See or Ordinary is destroyed, unless something else appears from the clauses added, or the rescript contains a power granted to someone of granting a grace to particular persons expressed in the same rescript, and the matter is still intact (can. 61). From these things it follows that a rescript does not cease during vacancy of the See: first, when the grace has already been made, which obtains, as we said, when the rescript is granted in gracious form or indeed in commissory form, but with a necessary executor; second, when the grace is to be made and the matter is no longer intact.

Note 2. If the rescript contains not a simple grace, but a privilege or dispensation, the prescriptions of the canons which follow are besides to be observed (can. 62), that is, those which treat privileges and dispensations (n. 196 sq.; n. 178 sq.).

Dispensations can be granted either in gracious form or in commissory form. It is said to be granted in gracious form when the Superior to whom the petition is directed himself grants the dispensation or applies it to the petitioners; hence a concession of this kind is made without an executor, and has effect from the moment when the letters were given (canon 38). A dispensation is said to be granted in commissory form when the Superior commits the execution of the dispensation to another. The person to whom the execution is committed is called the executor; the whole business to be fulfilled by him is called execution; the part of the business which consists in applying the dispensation is called fulmination. Concerning execution, the following hold:

I. The executor of a dispensation performs his office invalidly before he has received the letters and recognized their authenticity and integrity, unless previous knowledge of them has been transmitted to him by the authority of the rescriptor (canon 53). Besides, note:

1. The executor of dispensations can substitute another for himself according to his prudent judgment, unless substitution has been prohibited or the person of the substitute has been predefined (canon 57, § 1).

2. Any dispensations whatever can be committed to execution also by the successor of the executor in dignity or office, unless the industry of the person has been chosen (canon 58).

3. Through the vacancy of the Apostolic See or of the diocese, no dispensation of the same Apostolic See or of the Ordinary perishes (canon 61).

4. The Ordinary of the petitioners, to whom a dispensation over a public impediment has been committed, should execute the dispensation even if the betrothed have departed into another diocese before the execution of the dispensation, and are not going to return, provided the Ordinary of the place in which they desire to contract marriage is advised (canon 1055).

II. If in the rescript of dispensation the mere ministry of execution is committed, the execution of the rescript cannot be denied unless either it is manifestly clear that the rescript is null by a defect of subreption or obreption, or conditions are placed in the rescript which the executor knows have not been fulfilled, or the one who obtained the rescript seems, in the judgment of the executor, so unworthy that the concession of the grace will be an offense to others; and if this last thing happens, the executor, the execution having been interrupted, should immediately make the rescriptor more certain about the matter (canon 54, § 1). But if in the rescript of dispensation the concession of the grace is committed to the executor, it belongs to him, according to his prudent judgment and conscience, to grant or deny the grace (canon 54, § 2).

A rescript is a written reply made by the Holy See or the Ordinary to a request, statement, or consultation. Replies of this kind are employed in reference to the concession of benefices and to dispositions to be made concerning litigation and judicial procedure. Usually they grant favors, either transitory—e.g., a dispensation—or permanent—e.g., a privilege (Canons 36-62).

1. Gervasius, having a privilege by which he can hear Mass during a time of interdict, nevertheless omits it, because, he says, no one is held to use a privilege. The same Gervasius, suffering from a very troublesome gout, by no means can seek the church for hearing Mass on feast days. But although he can hear Mass in the private oratory of his house, of which he has the privilege, he also omits it, relying on the same principle.

Q. 1. Is he who can by privilege hear Mass during a time of interdict held to hear it? 2. Is he who cannot leave home held to hear Mass by privilege in a private oratory?

R. To the first, affirmatively. The reason is that that special privilege has no other effect than to remove the impediment of inability in the observance of the common precept, which interdict brings. Therefore, such an impediment having been removed, since consequently one is able to fulfill the law, the obligation of fulfilling the precept is in force. - To the second, probably negatively, because to do the sacred rite in a private oratory is of itself something odious, and less becoming the reverence due to this divine sacrifice. Therefore no one can be compelled to use such a privilege. Hence the distinction is clear between this case and the preceding one. For in the case of interdict, the impediment of inability having been removed by the privilege, afterwards no dispensation of law intervenes, but Mass is said in the regular way. On the contrary, in the present case, through the privilege the impediment of hearing Mass is not removed, sickness for example, but the faculty is made that Mass be celebrated and heard outside the church against the common canon, and therefore truly there intervenes here an active use of privilege, which no one is held to use. Ithuriaga, Cas. 32, n. 19, 20. Others, however, deny it. And thus G. 139 says: "Gervasius is held to use the privilege, if he can easily have a priest who will celebrate gratuitously in the oratory; the reason is that, although he is not held to use a privilege, he is held to satisfy the precept whenever he can do this without inconvenience. Indeed, the same must be said if he can hire a priest for a modest stipend, because each person is held to suffer a slight inconvenience in order to satisfy a precept.... But if Gervasius cannot hire a priest without a notable stipend, he is more probably to be excused from the obligation of Mass." - Cf. I. M. 259; Gur.-Ball. Comp. 348.

2. Odoardus sought several graces from the Supreme Pontiff. But since all the rescripts had been remitted to the Ordinary, and were to be communicated to Odoardus by the Ordinary, the Ordinary abstained from making such communication. For with respect to some, he did not judge it expedient that Odoardus enjoy those graces and privileges. With respect to others, however, he judged that the causes set forth to the Pontiff were not consonant with the truth. When this came to the knowledge of Odoardus, he indeed offered humble prayers to the Ordinary, that he would be willing to communicate the apostolic rescripts to him, yet at the same time asserting, with all reverence toward the bishop, that he himself could not impede or delay their effect.

Q. 1. What is a rescript? 2. Did the bishop act by right or by injury; did Odoardus speak rightly or erroneously?

R. To the first, cf. I. M. 283. To the second: the resolution of the question depends on the form and on the various clauses by which the rescripts were conceded. Thus, for example, the bishop indeed acts injuriously if the rescripts are in gracious form. For these rescripts are those in which the Supreme Pontiff by himself immediately makes the grace, without this being able to be impeded or delayed by another. And this has place either without any commission or execution to be given by the Ordinary, for example: The Most Holy One benignly assented for the faculty sought; or with a commission or mere execution to be given by the Ordinary, for example: The Most Holy One benignly assented at the judgment of the Ordinary for the indult sought. In the first case, there is no executor. In the other there is a mere executor, to whom a bare ministry to be executed is committed without exercise of jurisdiction, whose office consequently consists in the fact alone, nor can he assume the parts of a judge. Nor indeed by force of the clause at the judgment can the Ordinary, to whose judgment the execution is committed, abstain from the executorial decree, and impede or delay the grace immediately conceded by the Supreme Pontiff through a rescript in gracious form; for this clause, at the judgment and conscience, at the judgment and prudence, is only an expression and signification of mere fittingness and reverence, S. C. C., 6 Dec. 1845. Therefore in such a case Odoardus spoke rightly. Indeed, a mere executor, to whom rescripts in gracious form have been committed, must altogether, without any knowledge of the cause, entrust them to execution; because to the indultary, through the grace immediately conceded by the Supreme Pontiff, a right in the thing in some way has already been acquired.

But another thing must be said if the rescripts are in commissary form.

These rescripts are those in which the Supreme Pontiff does not make the grace by himself, but commits, or gives a mandate to Ordinaries that they make it if they judge it expedient in the Lord, for example: The Most Holy One remitted the petitions to the judgment of the Ordinary, with the necessary and opportune faculties for this, that he can and may be able to provide concerning the premises. Or also: The Most Holy One granted the faculty to the Ordinary of conceding to the petitioner the indult sought, if he should thus judge it expedient in the Lord. Namely, since the Supreme Pontiff himself sometimes does not have knowledge of the things with which there is then question, and otherwise does not dissent in general that the grace be conceded, he then commits to the Ordinaries that they concede the grace, by granting them the faculty for this. For they can more easily have full knowledge and certitude of the things narrated. The executor then is not a mere executor, but a mixed executor; for to him is committed not a bare ministry, but a ministry with exercise of jurisdiction. For to the executor is committed the office of verifying the things set forth or narrated to the Supreme Pontiff, and at the same time the power of conceding the grace. Whence before this execution the indultary does not have a right in the thing, but only a right to the thing. Wherefore, in this other case, if, the verification of the things set forth having been made, the Ordinary does not find them true, he rightly abstained from bestowing the grace; and Odoardus spoke erroneously. But otherwise, if, the verification of the things set forth having been made, it was established that they were true. S. C. EE. et RR., 29 Apr. 1768.

Finally, another thing must also be said if the rescripts are in mixed form, that is, gracious and commissary at the same time. These rescripts are those in which the Supreme Pontiff himself indeed concedes the grace, but dependently on conditions to be verified by the Ordinary. Wherefore the concession is quasi-conditioned, and becomes absolute when that condition is verified, for example: The Most Holy One assented at the judgment of the Ordinary, it being established concerning evident utility, and with the consent of those having an interest acceding, for the faculty sought, or sale, etc. In this case the executor is also mixed, for although there is not committed to him also the power of bestowing the grace, nevertheless there is committed the power of knowing and verifying the things set forth, and the conditions added in the rescript. Cf. Ferraris, v. Exequutor. Whence before execution there is acquired to the indultary only a right to the thing. But, as in gracious form, so in this mixed form, the grace has been made, and therefore it does not expire through the death of the Pontiff, provided that on the contrary, in commissary form, the grace is to be made, and expires through the death of the Pontiff; but when a new Pontiff has been elected, it revives, by force of rule 12 of the Chancery. Wherefore, in this case also, the bishop acts rightly if the causes set forth to the Supreme Pontiff were in reality false; and therefore Odoardus spoke erroneously. But otherwise it must be said if the causes were true, and the other conditions added in the rescripts were verified. C. 9, de Off. et pot. iud. del. in 6.; I. M. 251, 255, 283, and v. 2, 1045; Aloisius Trombetta, Praxeos Regulae circa contr. rer. eccles., c. 6.

3. Titius obtains from the Holy See the grace of a private oratory and some indulgences. Must he manifest these to the Ordinary under pain of nullity?

R. Affirmatively as regards the private oratory, because it is a dispensation, and dispensations by which derogation is made from some law, whether they are in commissary form or in gracious form, are to be exhibited to Ordinaries, so that they may either execute them or at least know them. Trent, sess. 22, ch. 2, de R. Negatively as regards indulgences, because there is no question of a dispensation, of which alone the Council of Trent speaks in the cited place, but of a mere grace. S. C. Indulg., 20 May 1896. - M. E. v. 9, p. 2, p. 142.

4. The bishop N. sought a dispensation from the Sacred Penitentiary upon the impediment of consanguinity in the second degree of the collateral line, so that Carolus D. and Iulia M. could contract marriage. For causes he set forth the almost advanced age of the female petitioner, namely 23 years and 6 months, and her condition as deprived of both parents. The Sacred Penitentiary conceded the dispensation on account of the age of the female petitioner, 24 years, and her condition as orphan. Since Iulia M. has not completed the twenty-fourth year, is the rescript valid?

R. "Since another cause for dispensing is present, nothing obstructs that the aforesaid rescript of dispensation be entrusted to execution." S. Poenit., 28 Apr. 1897. M. E. v. 10, p. 1, p. 195.

What is a Rescript; what are its necessary conditions?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

— I. Notion. Division. A rescript is a response of the Holy See or of an Ordinary, given in writing at the instance of one petitioning.

Rescripts are either of justice, or for lawsuits, or of grace; and the latter not rarely contain a dispensation or privilege. Then attention must also be given to the rules of dispensations and privileges (c. 62).

— II. Persons capable. With the exception of an excommunicated or suspended person to be avoided, or of him who by sentence has been made or declared excommunicated or suspended, and of one personally interdicted, rescripts can be obtained by all, both for themselves and for others, even apart from the consent of these; and, unless the clauses convey something else, they have force before their acceptance (cc. 36, 37, 2265 § 2; 2275, 3°; 2283).

— III. Conditions of validity. Conditions added are only then for validity, when they are expressed by the particles if, provided that, or another of the same signification (c. 39). But in all rescripts the condition is to be understood: If the petitions rest upon truth. Yet they rest sufficiently upon truth so that they are valid, if those things have been expressed which, from the style of the curia, must be expressed for validity, and at least one motivating cause is true. And the truth of at least one motivating cause is required even when the clause Motu proprio has been added, unless a dispensation is sought from a lesser impediment of marriage (cc. 39, 40, 42, 45, 1054).

If a rescript grants several favors, a defect in one part does not invalidate the other (c. 42 § 3).

— IV. From what moment they operate. Rescripts of which there is no executor have effect from the moment at which the letters have been given; and it is necessary that at that same moment the petitions rest upon truth. The others have effect from the time of execution: at which time alone, then, the petitions must rest upon truth (cc. 38, 40, 41).

Wherefore jurisdiction to hear confessions, sought by letters, is possessed from the moment at which it has been granted. Therefore, in a case of necessity, where there is certain conjecture, it will be permitted to use such jurisdiction even before notice has been received. Outside a case of necessity, the use would be rather rash, and consequently illicit. Cf. Laymann, l. 1, tr. 4, c. 23, n. 10.

— V. Errors. An error in the name of the person to whom or by whom they are granted, or of the place in which the person is staying, or of the matter about which there is question, does not stand in the way of validity, provided that, in the judgment of the Ordinary, there is no doubt concerning the person himself or the matter (c. 47).

— VI. Execution of a rescript. The executor of a rescript:

1. Enters upon his function before he has either received and recognized the authentic letters, or previous notice of those letters has been transmitted to him by the authority of the one granting the rescript (c. 53).

Wherefore, before letters of this kind, or notice, have been received, we cannot use, even validly, a faculty of dispensing in some marriage, or of absolving someone from some reserved case. Cf. resp. S. Offic. 14 Nov. 1892.

2. From can. 54, he cannot of himself deny execution, when the mere ministry of execution is committed to him, v.g. "We command that, if the things set forth are true, you dispense"; otherwise, if in the rescript the concession of the favor is committed to the executor, "We commit it to your judgment that you grant the favor."

3. He must execute in writing rescripts which regard the external forum (c. 56).

4. If he has erred, he can again commit the rescript to execution (c. 59).

5. Unless the person has been chosen rather by reason of a special quality (science, skill) than of office or function, or the tenor of the rescript conveys something else, the executor can substitute another for himself; and a successor in dignity or office is permitted to commit any rescript to execution (cc. 57, 58).

— What happens when the see is vacant. Through the vacancy of the see of the one granting, a rescript is not extinguished, unless something else appears from the clauses added, or unless the rescript contains a power given to someone of granting a particular favor to persons expressed in the same rescript, and the matter is still entire (c. 61).

— VII. Presentation to the Ordinary. A rescript of the Holy See in which no executor is given need not be presented to the Ordinary of the one obtaining it, unless this is prescribed in the letters, or there is question of public matters (c. 51).

— VIII. Recourse to various Superiors. A favor denied by one Sacred Congregation or Office of the Roman Curia is invalidly granted by another Sacred Congregation or Office, or by the Ordinary of the place, even if he has the power, without the consent of the Sacred Congregation or Office with which, or with whom, business had begun, saving the right of the Sacred Penitentiary for the internal forum (c. 43).

We are also prohibited from asking a favor from another Ordinary, when it has been denied by our own, with no mention made of the denial. Indeed, mention of a favor denied by the vicar general is required for validity, so that it can be obtained from the bishop. But what the bishop has denied, the vicar general cannot now grant unless the bishop consents (c. 44).

Saving liturgical laws, time, unless something else is expressly provided, is to be reckoned according to the norm of the canons which follow (Can. 31).

§ 1. A day consists of 24 hours to be reckoned continuously from midnight, a week of 7 days.

§ 2. In law under the name of a month comes a space of 30 days, but under the name of a year a space of 365 days, unless month and year are said to be taken as they are in the calendar (Can. 32).

§ 1. In reckoning the hours of the day one must stand by the common usage of the place; but in the private celebration of Mass, in the private recitation of the canonical hours, in receiving sacred communion, and in observing the law of fast or abstinence, even if the usual reckoning of the place is otherwise, one can follow the time of the place, or local time, whether true or mean, or legal time, whether regional or some other extraordinary time.¹

§ 2. As regards the time for urging the obligations of contracts, unless it has been otherwise agreed by express compact, the prescript of the civil law in force in the territory is to be observed (Can. 33).

§ 1. If month and year are designated by their proper name or equivalently, for example, in the month of February, in the next future year, they are to be taken as they are in the calendar.

§ 2. If the term from which is assigned neither explicitly nor implicitly, for example, suspension from the celebration of Mass for a month or two years, three months of vacations in a year, etc., the time is reckoned from moment to moment; and if the time is continuous, as in the first example brought forward, months and years are taken as they are in the calendar; if interrupted, a week is understood as 7 days, a month as 30, a year as 365.

§ 3. If the time consists of one or several months or years, one or several weeks, or finally several days, and the term from which is assigned explicitly or implicitly:

1st. Months and years are to be taken as they are in the calendar;

2nd. If the term from which coincides with the beginning of the day, for example, two months of vacations from the 15th day of August, the first day is computed for completing the enumeration and the time is ended at the beginning of the last day of the same number;

3rd. If the term from which does not coincide with the beginning of the day, for example, the fourteenth year of age, the year of novitiate, eight days from the vacancy of the episcopal see, ten days for appealing, etc., the first day is not computed and the time is ended when the last day of the same number has been completed;

4th. But if the month lacks a day of the same number, for example, one month from the 30th day of January, then according to the diverse case the time is ended at the beginning or at the completion of the last day of the month;

5th. If it is a question of acts of the same kind to be renewed at fixed times, for example, three years for perpetual profession after temporary profession, three years or some other space of time for renewing an election, etc., the time is ended on the same recurring day on which it began, but the new act can be placed through the whole of that same day (Can. 34).

Useful time is understood as that which so belongs to someone for the exercise or prosecution of his right that it does not run for one who is ignorant or unable to act; continuous time, that which suffers no interruption (Can. 35).

¹ Cf. Addenda, p. 1126, n. 84.

§ 1. Rescripts both of the Apostolic See and of other Ordinaries can be obtained freely by all who are not expressly prohibited.

§ 2. Graces and dispensations of every kind conceded by the Apostolic See are valid even for those bound by censure, saving the prescript of can. 2265, § 2, 2275, n. 3, 2283 (Can. 36).

A rescript can be obtained for another even without his assent; and although he himself can choose not to use the grace conceded through the rescript, nevertheless the rescript is valid before his acceptance, unless something else appears from the added clauses (Can. 37).

Rescripts by which a grace is conceded without an executor interposed have effect from the moment at which the letters were given; the others from the time of execution (Can. 38).

Conditions in rescripts are then only considered essential for the validity of the same when they are expressed by the particles if, provided that, or another of the same signification (Can. 39).

In all rescripts there is understood, even if not expressed, the condition: If the petitions rest upon truth, saving the prescript of can. 45, 1054 (Can. 40).

In rescripts of which there is no executor, the petitions must rest upon truth at the time at which the rescript was given; in the others at the time of execution (Can. 41).

§ 1. The concealment of truth, or subreption, in the petitions does not prevent the rescript from having force and being valid, provided that those things have been expressed which according to the style of the Curia must be expressed for validity.

§ 2. Nor does the statement of falsehood, or obreption, prevent it, provided that either the one cause proposed, or at least one motive cause out of several proposed, is true.

§ 3. A defect of obreption or subreption in only one part of the rescript does not weaken another part, if several graces are conceded together through one rescript (Can. 42).

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 the matter had begun to be treated, saving the right of the Sacred Penitentiary for the internal forum (Can. 43).

§ 1. Let no one seek from another Ordinary a grace denied by his own Ordinary, with no mention made of the denial; but when mention has been made, let the Ordinary not concede the grace, unless the reasons for the denial have been had from the prior Ordinary.

§ 2. A grace denied by the Vicar General and afterward obtained from the Bishop with no mention made of this denial is invalid; but a grace denied by the Bishop cannot validly be obtained from the Vicar General, even when mention of the denial has been made, if the Bishop does not consent (Can. 44).

When the clause Motu proprio is added to rescripts obtained at the petitions of someone, these indeed are valid if in the petitions a truth otherwise necessarily to be expressed is kept silent, but not if a false final cause, and that the only one, is proposed, saving the prescript of can. 1054 (Can. 45).

Rescripts, even those conceded Motu proprio, to a person incapable by common law of obtaining the grace in question, and likewise those issued against the legitimate custom or special statute of some place, or against a right already acquired by another, are not sustained unless an express derogatory clause is added to the rescript (Can. 46).

Rescripts are not rendered void because of an 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 the matter is treated, provided that, in the judgment of the Ordinary, there is no doubt concerning the person or thing itself (Can. 47).

A rescript of the Apostolic See in which no executor is given must be presented to the Ordinary of the one obtaining it only when this is prescribed in the same letters, or when it concerns public matters, or when it is necessary to verify certain conditions (Can. 51).

Rescripts for the presentation of which no definite time has been set can be exhibited to the executor at any time, provided fraud and deceit are absent (Can. 52).

The executor of a rescript invalidly performs his duty before he has received the letters and has recognized their authenticity and integrity, unless previous notice of the same has been transmitted to him by the authority of the one rescripting (Can. 53).

§ 1. If in a rescript the mere ministry of execution is committed, the execution of the rescript cannot be denied, unless either it is manifestly clear that the rescript is null by defect of subreption or obreption, or in the rescript there are added conditions which the executor knows have not been fulfilled, or the one who obtained the rescript seems so unworthy, in the judgment of the executor, that the concession of the grace would be for the offense of others; but if this last thing happens, the executor, with execution suspended, is immediately to inform the one rescripting concerning the matter.

§ 2. But if in a rescript the concession of the grace is committed to the executor, it belongs to him, according to his prudent judgment and conscience, to concede or deny the grace (Can. 54).